PRAWO ZASTAWU JAKO ZABEZPIECZENIE ROSZCZENIA O ZWROT POŻYCZKI MORSKIEJ W D. 22,2,6
Pledge as a Security in Maritime Loan in D. 22,2,6
In the maritime loan, as the best known form of investing money in maritime trade, the credit was used to buy merchandise carried on a ship. If a ship perished with the merchandise, the borrower was not obliged to repay a loan. As in this type of loan the creditor undertook the risk of the perishing of the ship (periculum maris), as a reward he could stipulate the interest exceeding the legal rate in case of a successful journey. In order to reduce his risk, the lender decided about the details of the journey: the route, the dates of sea voyage and merchandise acquired and he also often supervised the proper performance of the borrower’s obligations through his agent travelling with the latter. Apart from the risk of the perishing of the ship, the lender undertook also the risk of the debtor’s insolvency being a result of different events than the perishing of the ship (as for example the perishing of merchandise after the condition si salva navis was fulfilled). That other risk could be reduced to some extend through a pledge over the merchandise purchased from the loan and carried by the borrower on the ship. The text of D. 22,2,6 refers to a special case of such a pledge. In the case analyzed by Paulus the creditor as a security of his loan had a pledge non only over the merchandise purchased from his loan, but also, in case in which his whole debt could not be discharged from these goods, over any surplus of the other goods loaded on the other ships and under pledge to their respective moneylenders. This text was widely discussed among romanists, who did not agree about the legal basis of making such subsidiary pledges. It was suggested that among faeneratores some kind of partnership existed or that the debtors were more than one and they were bound reciprocally by a mutual surety. In my opinion it cannot be excluded that those lenders made a part of one contract of maritime loan. Each of them undertook the risk of the perishing of the ship on which there were loaded goods purchased from his part of the loan, and as a security, each of them had a pledge over the goods carried on his ship, plus, subsidiarily, over the other goods purchased from the same loan but financed by other lenders. Anyway, it is worth noting that it’s not necessary that the moneylenders in the case discussed by Paulus made a part of the same contract of the loan or were partners. Taking into consideration the rule regarding the priority of liens expressed in D. 20,4,7 pr.-1, according to which the obligation of the creditor from the credit used to acquired the goods pledged had precedence over any other obligation secured with the pledge over the same goods, it is possible to maintain that there was not any legal relation neither among lenders nor borrowers. The first lender to secure his obligation took a pledge over the goods purchased from his loan, as commonly practiced. As he wanted to protect himself better against the debtor’s insolvency, he took also a pledge over the remaining property of the debtor that is merchandise carried by him in other ships. As this cargo was purchased from the loans granted by other lenders, those lenders had priority before the pledge of the first lender. In spite of many controversies, the text discussed provides us with precious information regarding the financing of the maritime trade in ancient Rome, as it shows that not only periculum maris, but also other risk related to the investment in maritime commerce, was reduced by lenders. It also suggests that the legal structure of such an investment could be more complex than a simple scheme consisted of one lender and one borrower.
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