Security and Credit in Roman Law: The Historical Evolution of Pignus and Hypotheca

447 Pages·2022·3.482 MB·English

by  Hendrik L. E. Verhagen

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OXFORD STUDIES IN ROMAN SOCIETY AND LAW
General Editors
Paul du Plessis Thomas A. J. McGinn
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OXFORD STUDIES IN ROMAN SOCIETY AND LAW
The aim of this monograph series is to create an interdisciplinary forum devoted to
the interaction between legal history and ancient history, in the context of the study of
Roman law. Focusing on the relationship of law to society, the volumes will cover the
most significant periods of Roman law (up to the death of Justinian in 565) so as to
provide a balanced view of growth, decline, and resurgence. Most importantly, the
series will provoke general debate over the extent to which legal rules should be
examined in light of the society which produced them in order to understand their
purpose and efficacy.
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Security and Credit in
Roman Law
The historical evolution of pignus
and hypotheca
HENDRIK L. E. VERHAGEN
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Great Clarendon Street, Oxford, OX2 6DP,
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© Hendrik L. E. Verhagen 2022
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First Edition published in 2022
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Library of Congress Control Number: 2022931816
ISBN 978–0–19–969583–6
DOI: 10.1093/oso/9780199695836.001.0001
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Voor Marie- José, Eva, en Laura
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Acknowledgments
Family, friends and colleagues have helped and supported me over the years:
I am immensely grateful to all of them. For this book I would like to thank
a number of persons specifically. My home country, the Netherlands, has a
great Romanist tradition, which is continued by a range of bright young
scholars. I am very grateful to some of them for their comments of chapters of
my book: Vincent van Hoof, Elsemieke Daalder, Rian Bobbink, and Quintijn
Mauer. I am thankful to my daughter Laura for checking citations of the
Corpus iuris civilis and to Vincent Hunink for his advice on some of the trans-
lations from Latin. I would like to thank two colleagues at the faculty of law of
the Radboud University for their encouragement over the years: Corjo Jansen
and Ben Schuijling. I would also like to express my thanks to those who have
given useful comments in earlier publications, on which this book is partly
based: Giuseppe Dari- Mattiacci, Dennis Kehoe, Jaap den Hollander, and
Willem Zwalve. A special word of thanks goes to Peter Richerson, who kindly
read the sections on social and cultural evolution. I am extremely grateful to
the anonymous reviewers of this book, not only for their comments on spe-
cific points but even more so for the very useful suggestions for enhancing the
presentation of the material contained in this book. I also would like to
express my thanks to the editors of the series Roman Studies in Law and
Society, Paul du Plessis and Thomas McGinn, for their guidance. I remember
with great respect Felix Wubbe, Robert Feenstra, and Hans Ankum. The lat-
ter read and corrected all my preliminary studies on pignus and hypotheca
and encouraged the writing of this book.
I am fortunate to have spent my entire professional life in stimulating and
diverse working environments. My career started at the Department of
Roman law of the Radboud University, chaired by Paul Nève, where the seeds
for my interest in Roman law were sown. In the Financial Markets Group of
Clifford Chance Amsterdam, I learned much about law and finance in action.
Within the Department of Private Law of the Faculty of Law of the Radboud
University, for a long time chaired by Bas Kortmann and now by Steven
Bartels, I have always had absolute freedom to pursue any legal subject, past
or present, that I was interested in. At the same university I also enjoy the priv il-
ege of being a member of the Ancient and Medieval History Department of
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viii Acknowledgments
the Faculty of Arts chaired by Olivier Hekster. I would like to thank Charlotte
Loveridge, Henry Clarke and Jamie Mortimer at Oxford University Press, who
have patiently encouraged and supported my book. Janet Walker and Thomas
Deva skilfully edited the manuscript for publication, and Ian Macavoy cor-
rected the proofs.
Many years ago my wife Marie-J osé first took me to the Mercati di Traiano
in Rome, where the idea for this book was born. Ever since she has been an
inspiring, sensible and caring travelling companion on the long and adventurous
road which led to the present book. I dedicate this book to her and to our
daughters Eva and Laura, without whose loving support it could not have
been written.
Rick Verhagen
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Contents
Acknowledgments vii
Abbreviations xi
Introduction 1
1. Co- evolution of Law and Economy 8
2. Mechanisms of Legal Evolution 38
3. Economic Environment 62
4. Origins 87
5. From Forfeiture to Sale 128
6. From Pignus to Hypotheca 174
7. From Single to Multiple Pledge 218
8. Pignus Nominis and Antichresis 245
9. From Special to General Pledge 268
10. Fiscal Privileges and Title Registries 317
11. Late Classical Execution Practices 343
12. Adaptedness of Pignus and Hypotheca 366
Appendix 391
Bibliography 397
Index 417
Index of Sources 426