Genesis and Forms of Personal Secured Transactions in Roman Law

Abstract

The article examines the genesis and principal forms of personal security transactions in Roman law, as well as their significance for understanding modern personal security arrangements. Drawing on an analysis of Gaius’ Institutes, Justinian’s Digest, and Roman-law scholarship, it demonstrates that Roman law did not develop a general doctrine of security transactions; nevertheless, it was precisely within Roman law that the basic models of personal security received their most consistent elaboration. The article shows that the structure of adpromissio, while retaining an accessory character in relation to the principal obligation, was not reducible to mere plurality of persons on the debtor’s side, since it arose on an independent legal basis and imposed upon the provider of the security an autonomous obligation toward the creditor. It further elucidates the differences among sponsio, fidepromissio, and fideiussio with regard to the type of secured obligation, the scope and duration of liability, and the nature of the relationships among co-sureties. Particular attention is given to the right of the performing surety to recover the expenses incurred, the evolution of the relevant remedies from actio depensi to beneficium cedendarum actionum, and the emergence of beneficium excussionis as a precursor to the subsidiary liability of the surety. The article also analyses the non-stipulatory forms of personal security — constitutum debiti alieni and mandatum qualificatum — which influenced the subsequent development of European, and especially German, law. It argues that in Roman law the content of the obligation assumed by the provider of personal security was conceptualized through the category of praestare, which makes it possible to speak of a specific causa of security transactions distinguishing them from other transactions used to structure relations of classical exchange. The article concludes that Roman law already laid the foundations for an integrative approach to suretyship, under which the nature of the security provider’s obligation is determined by the type of the secured obligation, while personal security arrangements constitute an autonomous group of juridical acts with their own function, content, and causal orientation. These conclusions are of significance for the contemporary civil-law characterization of personal security transactions.