Roman Law and the Legal World of the Romans

Contracts

One contract is pignus , “pledge” or “mortgage,” and it is a so called real contract [3, 14] . “Real” means that it required not only agreement, but also the actual handing over of a thing (Latin res ). An item was pledged by a debtor to a creditor to guarantee payment of some obligation. This obligation was per haps typically from a loan, but could also arise from any other source (e.g., sale, dowry, hire, even a delict). The pledge could be made in advance of the obligation even existing and (if so) could be made conditionally. The creditor could take possession of the pledge, but not sell or (generally) use it unless there was specific agreement on these points. She did not have to return the pledge (or any part of it) until the entire debt was paid. (Roman law also recognized other forms of security, which had somewhat different rules on these points [7, 9] .) The same object could be pledged to multiple creditors, though it was best to inform them all of the situation and keep careful track of the total indebtedness to avoid charges of fraud. Similarly, the basic contract for loan of cash (or anything else that would be used up by the borrower) was a “real” contract [8–12] . It was complicated by the fact that it did not include payment of interest, so some additional agreement was typically needed to make the arrangement commercially viable. (There were prob ably also cases in which the borrower fictionally admitted to having received more from the lender than he actually did. Since he was liable for what he had admitted to, the difference in amounts became the interest.) We see in this ensemble of contracts some major fea tures of Roman law in general. At a very abstract level, they

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