The Mortgage in Roman Law

By: Anavitarte, E. J.*

The mortgage is an accessory contract that constitutes a pledge without transfer of ownership to guarantee an obligation on the part of the debtor.

This link was created as a way to prevent the debtor's insolvency from affecting the creditor's assets, and in principle it would be born in the form of a trust, then that of a pignus, and, by praetorian influence, it would become the mortgage institution.

Thus, the mortgage does not dispose of the property itself, nor does it transfer its possession of it, but rather constitutes the guarantee for the creditor to exercise an action in rem if the debt of the main obligation is not paid.

Definition of Mortgage

The Romans would not develop the mortgage but late, and after having first explored some figures such as the Servian action, so its definition is not far from the other mortgage forms that emerged later, that is, it always implies two elements: the guarantee, and the retention of the thing.

Mortgage: guarantee of the late ius honorarium that ensured the payment of a debt by the appropriation of the mortgaged things of the debtor.
[1]

Thus, we can say that (a) on the one hand the mortgage is essentially a guarantee, like the pignus, and that this element defines it, since it cannot be constituted as a main contract, nor be required given the fulfillment of its main obligation.

And on the other (b) that unlike other forms of real guarantees, the mortgage does not give the creditor the property, or even the possession of the thing, so that he feels guaranteed in the obligation that the debtor has contracted, but it guarantees him an action, the mortgage or quasi-Servian, with which he can get hold of the thing.

[1]: Mortgage | Glossary of Roman law.

Legal Scope of the Mortgage

The mortgage is a figure of late creation, which arises from the need to regulate the special relationship between the settlers and the owner of the estate, knowing that on these it was difficult to constitute an ordinary pignus, since the transfer of the assets that could have the settler was already on the owner's land.

Thus, given this confluence of situations, the honorary law extended the Servian actions to a legal figure called a quasi-Servian or mortgage action.

From this we are interested in knowing that the mortgage is the result of the Roman legal evolution, to resolve certain specials in which the transfer of things was inefficient; and that the mortgage would only be present in the last two centuries of the Roman Empire, although it would survive in the rest of the Byzantine Empire, as it would until today.

The mortgage did not transfer ownership of the thing pending the fulfillment of a certain condition, but instead enabled the creditor to take possession of the possessory shares, as if from the beginning the guarantee had implied the material transfer (possession) of the same.

Although for a time the Lex Commissoria enabled the parties to agree to the transfer on condition.

Roman Mortgage Classification

The mortgage, given its nature of collateral, but with effects in the event of default by the debtor, had at least three ways in which it could be validly constituted as one thing, all of the praetorian origin: (a) by means of the constitution of an accessory obligation, (b) by testamentary disposition, and (c) by legal presumption.

Conventional
Testamentary
Tacit

Conventionally, and given that the mortgage seeks the rights of the creditor in another obligation, the main obligation, both parties at the time of constituting this obligation─the main─could also agree on a mortgage on the debtor's assets, which would operate as an accessory. We can call this mortgage conventional.

In addition, in very specific cases, in which the testator wanted to constitute a mortgage guarantee in a particular way, at the head of a legatee, he could leave it expressly in his will, and could configure the mortgage on the assets he inherits. We call this way of constituting the mortgage a testamentary mortgage.

And lastly, the mortgage could operate without the need for it to be expressly constituted by an accessory provision, which could happen either because local usage so established─and the praetor recognized─or because of the implicit will of the parties, or by legal provision.

History of the Mortgage

The inconveniences that the insolvency of the debtor presented, that even if he continued with the debt could affect the confidence that the creditor had that he could dispose of the thing or the money at a certain moment, made the Romans, skilled at creating new legal realities, They will use the trust as a guarantee of payment.

Trust
Pignus
Mortgage

This is how the real guarantees were born, and later, the use and work of the praetor, gave the figure different forms, until it was consolidated in what we know as a mortgage.

The history of the mortgage is developed around three figures: (a) alienation with trust, (b) the pignus─pledge─and (c) the mortgage itself.

Disposal with Trust

In principle, the solution found by the Romans, in order to preserve certain guarantees pending payment from the debtor, was to transfer ownership of a thing, in exchange for money, but making the creditor a fiduciary owner, who had to return the property after payment thing.

Thus, the debtor kept the thing as a lease or precarious, but he was not its owner, and for this same condition, he was prevented from acquiring the thing by usureceptio, unless he no longer had it as lessor.

This mechanism was of all the most advantageous for the creditor, and for this reason it would be preserved until well into the Lower Empire, in the 3rd century AD, because in any case the property was already full, and it can be alienated in case the payment is not made.

And it is perhaps this imbalance, which led the praetor to create new ways of guaranteeing the creditor his rights, which would be more favorable to the debtor.

Disadvantages of Disposal with Trust

First (a) because the debtor was never sure of the return of the thing, since if the creditor sold it, he was subject to the sale, and he could only take action against the creditor by way of fiduciae action, or by leaving the lease to try to seize it by usureceptio.

Nor (b) was he assured that the thing would be leased, that is, to retain its use, since the creditor could eventually refuse to allow it, since he was now the rightful owner.

And (c) the debtor was also limited in disposing of the thing, since it was no longer his, and he could not lease it to pay the creditor, nor raise another mortgage on it, even if its value was higher than the loan. For all this, new figures would be created, such as the later pignus and mortgage.

Pignus or Pledge

Civil law would end up creating a figure much more favorable to the interests of the debtor, in which he did not transfer ownership of the thing, but possession, which constitutes the main contribution of this figure, to the guarantee of real obligations.

In the pignus, the creditor did not become the owner, but instead acquired possession by assigning the debtor, so that even if the debtor were the owner of the thing and were to usucapir it, he could compute this time. And the creditor was empowered with all the injunctions granted by the bonorum possessio.

As in the fiducia, the creditor could transfer the use of the thing to the debtor through a lease, but it was not certain that this would happen either, so the pignus─or the pignus─still had some inconveniences in certain cases, in which the creditor wanted to retain full use of his thing.

Mortgage Properly

Given the inconveniences that the fiducia or the pignus─pledge─could present in some cases, the figure of the mortgage would then be born at the praetor's impulse, which granted as an advantage that the debtor could fully keep the thing, and therefore use them for the payment.

Sage interdict
Serbian action
Mortgage action

It seems that during the imperial era, it became common for the loans between the settler and the owner of the farm to include the assets of the former as guarantees of payment, which in the end were always above those of the latter.

Therefore, the honorary law first granted (a) that the creditor could request possession of the things by means of the Salvian injunction, and then (b) the Servian action was granted, which was no longer an injunction, but a true demand, to get hold of things in default of a payment.

The advantages of this figure, which was extremely advantageous for the debtor, and which maintained in the creditor a sufficient guarantee that he would have his payment, made its use become general; to such an extent that (c) it ended up creating its own share, the mortgage or quasi-Servian share.

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Anavitarte, E. J. (2017, January). The Mortgage in Roman Law. Academia Lab. https://academia-lab.com/2017/01/10/mortgage-in-the-roman-law/