_______________________________________________________________ THE DEVELOPMENT OF THE LANDLORD’S HYPOTHEC Rena van den Bergh* 1 Introduction In ancient Rome personal security was the most common form of security. This may be attributed to the large number of relationships based on fidelity.1 Most substantial transactions on credit were accompanied by such security. Fideiussio (suretyship or a fidelity bond) was concluded by means of stipulatio. In terms of this verbal contract the surety or guarantor pledged himself to fulfil the debtor’s agreement towards the creditor if the debtor could not honour it. The Romans also knew real security. According to Lee “[b]y a real security is meant a real right created to secure the performance of an obligation”.2 Buckland states that the essence of transactions creating real security is to give the creditor some right, essentially a right in rem, over property by way of security for the debt.3 Schulz defines a real security as a right over a thing (movable or immovable) granted to a creditor in order to secure his claim against a debtor.4 Real credit developed slowly and imperfectly in Roman economic life.5 In this article the development of this real right will be explored. Attention will also be given to the development of tacit hypothecs and the differences between rural and urban premises as far as the landlord’s hypothec is concerned. * Professor, Department of Jurisprudence, School of Law, University of South Africa (BA (Hons), MA, LLB, LLD (Unisa)). 1 Schulz Principles of Roman Law (1936) 237. See, further, Schulz Classical Roman Law (1961) 402 who emphasises that in the law of the Republic as well as the classical period, the principal form of credit was personal and not real security: “Roman fides, Roman pedantic accuracy, honesty, and reliability in business matters were the strong pillars of that credit.” Furthermore, execution on the person of the debtor was still in force, and personal credit consequently implied much greater security for the creditor than it provides in modern times. The giving of sureties and pledges, which was obligatory for contracts with the censors, also presupposed friends and patrons ready to step in and undertake the charge. Cf Hallebeek Fons et Origo. Een Historische Inleiding tot het Vermogensrecht (2006) 84; Honsell, Mayer-Maly & Selb Römisches Recht (1987) 195; Thomas Textbook of Roman Law (1981) 328; Nicholas An Introduction to Roman Law (1962) 150-151; Schulz Classical Roman Law 407-408. According to Kaser Das Römische Privatrecht Vol 1 (1971) 457 the fact that it was seen as more important than real security may also be proven by the fact that all the legalities of real securities – even during the classical period – had not yet been finalised and crystallised. 2 The Elements of Roman Law with a Translation of the Institutes of Justinian (1952) 170. 3 A Textbook of Roman Law from Augustus to Justinian (1975) 473. 4 Classical Roman Law (n 1) 400. 5 Idem 403. 156 The development of the landlord’s hypothec _______________________________________________________________ 2 Real security In this discussion it is important to keep in mind that real security was always dependent upon an obligation. The relationship between creditor and debtor was essential, and without it there could be no security. When such security was given and the secured obligation ceased to exist, the real right of the secured creditor in principle came to an end.6 In the course of Roman legal development there were three forms of real security namely fiducia, pignus and hypotheca. Fiducia was a form of real security where ownership of the object was transferred to the creditor.7 The next form of security to be introduced was pignus, in which case possession passed to the creditor but ownership remained with the debtor.8 The last form of real security was that of hypotheca where the creditor had the right to take possession, but the thing was not actually handed over.9 In Roman law there was not much difference between pignus and hypotheca: the first term was usually used in those cases where possession of the pledge was transferred to the creditor and the second when the debtor retained possession of the 6 D 20 1 5pr; D 20 4 1; D 20 4 9pr; D 20 6 6pr. See also Buckland (n 3) 317-318; Thomas (n 1) 329; Van Warmelo An Introduction to the Principles of Roman Civil Law (1976) 113. 7 See Joubert Romeinse Reg vir Regspraktisyns en Akademici (2004) 210-211; Spruit Cunabula Iuris. Elementen van het Romeinse Privaatrecht (2003) 235 237-239; Van Zyl Geskiedenis en Beginsels van die Romeinse Privaatreg (1977) 191-192; Watson The Law of Obligations in the Later Roman Republic (1965) 172; Jolowicz Historical Introduction to the Study of Roman Law (1954) 318; Van Oven Leerboek van Romeinsch Privaatrecht (1948) 169-173; Sohm The Institutes. A Textbook of the History and System of Roman Private Law (tr by Ledlie) (1935) 352-353; Buckland (n 3) 473-474; Lee (n 2) 171; Thomas (n 1) 329-330; Van Warmelo (n 6) 113-114; Hallebeek (n 1) 85; Honsell, Mayer-Maly & Selb (n 1) 200-201; Kaser Vol 1 (n 1) 460- 463; Schulz Classical Roman Law (n 1) 406-407; Nicholas (n 1) 150-151. Fiducia was the oldest type of real security. It was used to constitute real security for the creditor and consisted in the transfer of ownership of the object which was to serve as security to the creditor. This was done by means of mancipatio or in iure cessio, subject to an agreement of trust (fiducia) that it would be reconveyed once the debt was paid. The transfer was subject to an agreement of trust to the effect that ownership was transferred only for a specific purpose. The inherent dangers of this kind of security, from the debtor’s point of view, were (1) that the debtor would only have a personal action against the creditor if he were to be untrustworthy; (2) that the debtor took all the risk; and (3) that successive mortgages were not possible. It was probably for these reasons that other types of real security evolved. However, in spite of these disadvantages fiducia remained in use throughout the classical period. 8 A term usually used for a pledge delivered to the creditor and which was made possible by the praetor granting protection of possession: see Buckland (n 3) 474-475; Watson (n 7) 179-184; Jolowicz (n 7) 317; Lee (n 2) 171-172; Schulz Classical Roman Law (n 1) 407; Spruit (n 7) 235, 239-240; Hallebeek (n 1) 85; Honsell, Mayer-Maly & Selb (n 1) 201-203; Kaser Vol 1 (n 1) 463- 469; Van Zyl (n 7) 192-193; Thomas (n 1) 330-332; Van Warmelo (n 6) 115-116; Sohm (n 7) 353-354; Van Oven (n 7) 166-181. At 168 Van Oven points out that pledge was a late Roman development. It was a creation of praetorian law and only regarded as a real right because it could eventually be enforced with an actio in rem. Under the word pignus the Romans understood the right as well as the thing itself. The pledgee’s real right was established by (1) the transfer of possession; (2) an agreement by the parties (conventio pignoris) and (3) a debt which was secured by the parties. 9 A term used for a pledge which was not delivered: Kaser Vol 1 (n 1) 463; Buckland (n 3) 475- 476; Jolowicz (n 7) 319; Lee (n 2) 172; Schulz Classical Roman Law (n 1) 407-408; Watson (n 7) 179-180; Spruit (n 7) 235 239-240; Honsell, Mayer-Maly & Selb (n 1) 203-206; Van Zyl (n 7) 193-196; Thomas (n 1) 332-334; Van Warmelo (n 6) 116-119; Sohm (n 7) 354-357. 2009 (15-1) Fundamina 157 _______________________________________________________________ pledge.10 The final development came with an agreement, sometimes tacit, which eventually culminated in a real right for the creditor. The development of this form of security will now be discussed. 3 Development of the (tacit) hypothec 3 1 First appearance The need for a significant change in the field of security, namely a right in rem against the mortgaged property without either possession or ownership passing, must have been felt fairly early.11 Under the Republic the history of the protection of the creditor without possession started with cases in which a landlord was willing to lease his land to a tenant (colonus).12 The landlord obviously wished to collect the rent, but in most cases it could not be paid before the harvest and there was thus a need for credit until such time as the crop was gathered.13 He therefore required some form of security. Usually the only property an agricultural tenant could pledge would be his cattle, slaves and farming equipment, that is, everything he would require to farm. In the case of both fiducia and pignus this would mean that the tenant would lose control of the property pledged and would consequently not be able to farm.14 This impossible situation led to the development of a new form of security.15 The rural hypothec originally arose by special agreement between the parties that the landlord would be entitled to take the pledged property as well as the harvest if the tenant failed to pay the rent when it became due: “A debtor agreed that whatever was brought on the mortgaged land or there arose or was 10 D 13 7 9 2: “Strictly speaking, we use pignus for the pledge which is handed over to the creditor and hypotheca for the case in which he does not even get possession”; D 20 1 5 1: “The difference between pignus and hypotheca is purely verbal”.