1In a recent book Alan Watson has argued that Roman Law reflected the views, concerns, and intellectual habits of a narrow elite.1 There were two groups in this elite. First, there were the praetors, aediles, and provincial governors who administered the law, and the jurists who expounded and interpreted the law. Second, there were the litigants, judges, and others who heard cases and resolved disputes. These men were isolated from larger trends in social, economic and intellectual history and formed a closed world. For these reasons Roman Law followed an autonomous trajectory of development.

2This is not the place to challenge Watson’s general thesis.2 My aim in this essay is to study one area, real security, where Roman Law responded to the growing needs of a market economy and reached outside its own traditions to adapt the more flexible approach of Greek Law, one better suited to economic developments in the Late Republic. The first part of the essay examines the standard forms of real security in Roman Law and their limitations. The second part of the essay examines the practice of real security in Greek Law and studies the similarities between hypotheca in Roman Law and ὑποθήκη in Greek Law.

3I. Real security in Roman Law was a subsidiary contract, that is, a contract which was used to ensure that that the conditions of a primary contract would be fulfilled.3 It was most commonly used in lending but could be used in other types of contracts. In its basic form one party pledged some of his property (hence the term “real”) as security for the fulfillment of an obligation in the event that he could not satisfy it. In lending, the debtor would pledge some item, either movable of immovable, as security to the lender. In Roman Law this pledge could take either of two forms. First, the borrower could convey the property pledged as security by the formal procedure of mancipatio to the lender, who would thereby acquire ownership of the security. The creditor held the property in fiducia (in trust) until the debtor either repaid the loan or defaulted.4 In the former case, the lender was required to reconvey the security to the borrower. In the latter, the lender might sell the property to recover the money owed to him. If the amount of the sale exceeded the amount of the loan, the lender might be required to refund the excess to the borrower if they had concluded a pactum de uendendo (an agreement about sale of the security).

4This form of security was called fiducia cum creditore and held several advantages for the creditor. By giving him ownership, it protected him against any attempt of the debtor to sell the security. Because the creditor held a strong form of security, he might allow the debtor to hold the security precario (at the will of the creditor), which would allow him to exploit it to earn money to pay interest or the principal.5 If the creditor sold the property before the obligation was due, the debtor had an action against him to recover the price, but could not regain the property because the sale was valid. As long as he held the property in fiducia, the creditor was responsible looking after it. If he occupied and exploited the property, any profit he gained was deducted from the amount of the loan. Despite its advantages for the creditor, this form of security had significant limitations. First, it was restricted to res mancipi: Italic land, slaves, beasts of burden, and rustic praedial servitudes.6 This excluded many items such as ships. Second, only Roman citizens could perform the procedure or serve as witnesses to the procedure.7 When Rome was a small agricultural community and conducted little trade, this was not a problem, but as commerce grew and commercial contacts with foreigners multiplied, this became a serious obstacle to the development of credit relations.

5In the second form of real security, the borrower handed over the item pledged as security to the creditor. The debtor retained ownership (dominium), and the creditor gained only possessio. This was one of the four real contracts in Classical Roman Law; the obligation was created by the act of handing over the security to the creditor.8 The creditor was bound to return the security, and the debtor could use the actio pigneraticia if he failed to do so.9 Because the contract gave the creditor security, he was under an obligation to exercise the greatest care in looking after the security (ad eam rem custodiendam exactam diligentiam adhiberet). If the debtor did not meet his obligation by a certain time, the creditor had the right to sell the security if there had been an agreement to sell.10 Pignus was used for movables because it required that the creditor take physical possession of the security.11 It protected the debtor against any attempt of the creditor to sell the security before his loan fell due, but it deprived him of its use. It was also not suitable for creating multiple charges on the same security.

6By the early Empire, if not before, there was a third form of real security called hypotheca. The jurists sometimes use the terms pignus and hypotheca interchangeably, but Ulpian states that strictly speaking pignus was used for a pledge that was given to the creditor who gained possessio, hypotheca for the case where the creditor did not gain possessio12 This form of security may have first been used in rental contracts. The tenant pledged any items he brought to the leased property and any crops he acquired by perceptio as security for the payment of rent.13 If the lessee did not pay his rent, the lessor could use an interdictum Saluianum to seize these items or crops.14 This form of security could be applied to all kinds of property, both movable and immovable, and there was an actio hypothecaria available to the creditor to enforce his possessory right.15 The main advantage of this form of security was that it could be used to valuable assets like land or buildings to several creditors. This gave rise to a discussion about the priority of multiple creditors and the general rule that the first creditor had priority over subsequent creditors.16 It was also more flexible than fiducia cum creditore because it did not require the formal procedure of mancipatio and could be used to pledge res nec mancipi are security.

7The term hypotheca is a Greek word, which is widely attested both in Greek literary sources and in Greek inscriptions from the fourth century BCE onwards. But did the Romans merely borrow the word from the Greek language or did they also take over the substance of the practice in Greek Law? In others words, was hypotheca in Roman Law essentially the same institution as ὑποθήκη in Greek Law?

8II. According to the traditional view, the Athenians (and presumably other Greeks) had two or three forms of real security. The first was called prasis epi lysei and was comparable to fiducia cum creditore in Roman Law, the second enechyron, which was similar to pignus, and the third hypotheke, which was roughly the same as hypotheca.17 At first glance, this set of equivalences is very neat and attractive, but it does not take account of some key differences between the legal systems of Athens and Rome. Roman Law was able to create two different forms of real security, fiducia cum creditore and pignus, because this system provided formal procedures for conveyance (mancipatio and cessio in iure) and drew a careful distinction between dominium (ownership) and possessio (possession). These features made it possible to distinguish between a form of security in which the creditor gained ownership of the security (fiducia cum creditore) and another (pignus) in which he gained the right to possess (possessio) but not the rights of ownership (dominium). The distinction between the two forms of security was made clear in procedural terms: in fiducia cum creditore the creditor could protect his rights to the security by means of uindicatio and actiones in rem while in pignus he might avail himself of possessory interdicts. Athenian Law in particular (and, as far as we can tell, Greek Law in general) did not have formal modes of conveyance and did not make a strict distinction between the rights of ownership and the right to possess. In procedural terms there was nothing in Athenian Law similar to the distinction in Roman Law between the uindicatio and the possessory interdict. Athenian Law therefore lacked the legal mechanisms that would have made it possible to differentiate between different forms of real security.18

9The Athenians had several terms to refer to property pledged as security and to transactions involving real security. An object given as security was called either enechyron (Dem. 33.10; [Dem.] 49.2, 52, 53; 56.3) or hypotheke (Dem. 34.50). The act of pledging property as real security is expressed by the verb hypotithenai, and that of accepting security for an obligation is hypotithesthai (middle). On the horoi, which were placed on property pledged as security, one often finds the phrase «sold on condition of release» (pepramenou, -es, or -on). The Athenian habit of using different terms to refer to transactions involving real security might tempt one to conclude that the Athenians had two or more forms of real security, but one should resist this temptation for several reasons. First, a passage from the lexicon of Pollux (Onomasticon 8.142) indicates that two of the terms used to describe real security were in fact synonyms. Pollux refers to a speech of Hyperides (Against Chares) and says that the orator uses the participle «selling» (apodomenos) instead of the participle «pledging as security» (hypotheis). He therefore sees no difference between the transactions described by the two verbs and regards them as equivalent.

10Second, there is more extensive evidence in Demosthenes’ speech Against Pantaenetus.19 This speech concerns a loan of 105 mnai made by the speaker, Nicobulus, and his partner Evergus to Pantaenetus on the security of a workshop and thirty slaves (Dem. 37.4). The workshop and slaves had earlier been pledged as security for a loan to Mnesicles, Phileas, and Pleistor, and Nicobulus says that Mnesicles was the “seller” (pratêr) of this property. He clearly wishes the court that heard the case to think that the pledge of security transferred ownership to Mnesicles and his associates. When he and Evergus took over the loan from these lenders, the latter in effect transferred their ownership to the former. Because Nicobulus considers himself and Evergus the owners of the workshop and slaves in it, he calls the arrangement concluded between Pantaenetus and them a lease (Dem. 37.5-6). Yet when Pantaenetus fails to make a payment, Nicobulus calls it “interest” (Dem. 37.7: tokous), not rent.

11Once the contract was agreed, Nicobulus went away to the Pontus on business (Dem. 37.6) After he returned, he discovered that in his absence Evergus had seized the workshop and ejected Pantaenetus. Pantaenetus claimed that Evergus had violated the terms of the agreement and had used force to drive him away (Dem. 37.6). Evergus denied that he had used force and stated that he seized the security because Pantaenetus had failed to make several interest payments (Dem. 37.7). After being forced out of the workshop, Pantaenetus brought forward another set of creditors who said that they had also lent him money on the same security. Even though Nicobulus casts doubts on the validity of their claims, he treats them as legitimate in the subsequent negotiations with them (Dem. 37.13-15).20

12Nicobulus’ use of the terminology of sale is therefore deceptive. If Pantaenetus had really “sold” the security to them by pledging it as security, he could not have pledged it to another set of creditors because he no longer owned the security. Just as Pollux reports Hyperides used the language of sale to describe an act of hypothecation, Nicobulus also uses the same vocabulary in a similar. Despite the disagreements between the two litigants, three things are clear from Nicobulus’ account: 1) after pledging his property as security, the borrower remained in possession, 2) after pledging his property as security, the borrower retained ownership, and 3) the borrower, by retaining ownership, had the right to pledge the security to multiple creditors. Despite the use of the language of sale, the basic features of the type of security employed in the contract of Nicobulus and Evergus with Pantaenetus were exactly the same as those of hypotheca in Roman Law. In both cases, the pledge of security was nothing more than a lien on the property of the borrower; it did not grant more extensive rights.

13The reason why Nicobulus uses the language of sale and rental is that he wishes to cover up the fact the his partner Evergus acted wrongly in seizing the workshop when Pantaenetus failed to make some interest payments. This is the reason why the court awarded Pantaenetus damages when he brought a suit against Evergus (Dem. 37.8). The workshop and slaves had been pledged as security for the repayment of the principal of the loan, not for the interest. The creditors therefore had the right to seize the workshop only after the lender defaulted on the repayment of the principal, not when he failed to make interest payments.21 Nicobulus calls the arrangement a lease because it was recognized that a lessor could evict a lessee when the latter failed to make rental payments.22 His use of the language of sale and lease is therefore deceptive. His attempt to mislead the court should not blind us to the fact that in his negotiations with the other creditors he acted as if Pantaenetus remained the owner of the security.23 Later in the speech, he actually contrasts Pantaenetus’“sale” to Evergus and himself with “an outright” sale (peprakas de kathapax) by which he transferred ownership in return for payment of the full price three talents and 2,000 drachmas for the workshop and slaves (Dem. 37.50).24

14Evidence from the horoi, stone-markers set up on property pledged as security, confirms this analysis. On several of these horoi we read that a property has been “sold on condition of release” (pepramenou epi lysei) to someone for a loan. Normally there is one lender (e.g. horoi nos. 12, 13, 15, 17) or a single group of lenders (e.g. horoi nos. 18, 43, 44, 71). On one horos, however, the property is described as “sold on condition of release” to Hieromnemon of Halieus for a loan of 500 drachmas, then to another set of creditors for a loan of 130 drachmas, and also pledged as security (apotimema) to a group of eranistai with Theopeithes of Ikaria.25 Despite being “sold” there are three different sets of creditors. Once more, the language of sale is misleading. Even though the property is said to be sold to the creditor, the borrower retains the right to make further loans on the same property.

15Additional evidence comes from the records of the poletai for the year 367/6 BCE.26 These records list the sale of a house belonging to Theosebes, son of Theophilus, who was accused of stealing sacred property but did not await trial, apparently fleeing into exile. His house was registered as public property, confiscated and sold to Lysianias, son of Palatino, from the deme Laciadae for 575 drachmas (lines 35-36). There were four loans made on the property. The first loan of 150 drachmas was made by Smicythus of Teithras, to whom the house was pledged as security (hypokeitai) (lines 14-15). The second was made by Cichonides and the phrateres of the Medontidae. He claimed that Theophilus, the father of Theosebes, had “sold” the house to him and the phrateres for a loan of 100 drachmas. The poletai found the claim legitimate (lines 16-25). The third was made Isarchus, who claimed that money was owed to him for burying Theophilus and his wife, the parents of Theosebes. This lender did not claim that the house had been pledged as security, but the poletai just the same paid the debt out of the proceeds of the sale of the house (lines 25-30. The fourth loan was made by Aeschines of Melite and a group of orgeones, who claim that they bought the house on condition of release (priamenon... epi lysei, lines 30-35). In the two cases that the lenders claim that the house was “sold” to them, it is clear that they did not gain ownership because other loans were made on the same security before the previous loans were paid off. In one case the pledge of real security is described by the term hypokeitai, and in two others by the language of sale (apodomeno, priamenon), but there is clearly no difference between the forms of security in each case. As in the loan made by Nicobulus and Evergus to Pantaenetus, the pledge of real security does not transfer ownership to the borrower, who has the right to contract further loans on the same security. A pledge of security in Athenian Law gave the creditor a lien on the debtor’s property, which he could exercise only in the event of default, but nothing more.

16The evidence for real security outside of Athens is sparse and provides few details about the law regulating the practice in other Greek poleis. But the detailed rules contained in a law about debt from Ephesus (early third century BCE) are instructive (SIG ³ 364). The relevant passage is lines 32-41:

ὅσοι δὲ ἐπὶ | τοῖς ὑπερέχουσι δεδανείκασιν, εἶναι τὴγ κομιδὴν αύτοῖς ἐκ τοῦ περιόντος μέρους τῶι | γεωργῶι, κἂν εἷς κἂμ πλείους ὦσι, τοῖς πρώτοις πρώτοις καὶ τοῖς ἄλλοις ἐπεξῆς, τòν δέ | [νό]μον εἶναι καὶ τούτοις καθάπερ καὶ τοῖς πρώτοις δανείσασιν. εἰ δέ τινες | [ύποθέ]ντες ἄλλοις κτήματα δεδαμεισμένοι εἰσὶμ παρ' ἐτέρων ὡς ἐπ' ἐλευθέροις | [τοῖς κ]τήμασι, ἐξαπατήσαντες τοὺς υστέρους δανειστὰς. ἐξεῖναι τοῖς ὑστέροις | [δανεισ]ταῖς ἐξαλλάξασι τοὺς πρότερον δανειστὰς κατὰ τòν συλλογισμòν τοῦ κοινού πο | [λέμου] ἔχειν τὰ κτήματα, ἐὰν δὲ ἐνοφείληταί τι αὐτοῖς ἔτι, εἶναι τὴγ κομιδὴν τοῖς | [δανεισ]ταῖς ἐκ τῆς ἄλλης οὐσιάς τοῦ χρειστοῦ πάσης, τρόπῳ ᾠ ἂν δυνώνται, ἀζημίοις | [ἁπάση]ς ζημίας.

“All those who have lent money on the surplus (of property already pledged as security) can recover their money from the excess, whether there is one (creditor) or are more (than one), the first (lenders) and the others in order. The same rule applies to these as to those who made the first loan. If some have given property to others as security when borrowing money from others making them believe that this property is unencumbered and deceive the later lenders, it is permitted for the later lenders to exchange places with the previous lenders taking into consideration the Common War and take possession of the property. But if there is still something owing to them, the lenders have the right to recover it from all the property of the borrower in whatever way they can without incurring any penalty”.

17The rules at Ephesus appear to have been approximately the same as at Athens. The borrower did not yield possession of the hypothecated property to the creditor. He also implicitly retained ownership of his property after pledging it as security because he was able to contract further loans on it.

18The evidence from Athens and Ephesus indicates that the Greek form of real security was in its essential features identical to hypotheca in Roman Law. It is not possible to identify the precise period and circumstances in which the Romans borrowed the Greek practice, but the Late Republic, when the volume of trade between the Romans and the Greeks was rapidly increasing, provides the obvious context. The traditional Roman forms of real security were rigid and cumbersome, unsuitable for the needs of a growing market economy. The Greek form of real security lacked these disadvantages and allowed the borrower to exploit the full value of his property to obtain credit. Under the impact of economic development, the strict formalism of Roman Law yielded to the more flexible practices of Greek Law.