this publication - Part 1 - PULP

The Three Books
on
INTEREST-BEARING LOANS
and INTEREST
(FOENUS ET USURAE)
by
Gerard Noodt, Jurist and
Professor of Law
In these books many passages from the Corpus Juris Civilis and other ancient
writings are either elucidated or emended.
THIRD EDITION
LEIDEN
Johannes van der Linden Jr
1724
2009
The three books on interest-bearing loans and interest
By Gerard Noodt, Jurist and Professor of Law
Published by:
Pretoria University Law Press (PULP)
The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law,
University of Pretoria, South Africa. PULP endeavours to publish and make
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0002
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ISBN: 978-0-9814124-0-5
© 2009
PREAMBLE
I.
INTRODUCTION
[1.1] This publication is the proud result of the team effort of the
project participants named below. The project was initially inspired
by the unavailability of a translation from Latin of the excellent
writings of one of the great Roman-Dutch jurists, Gerard Noodt. A
biography of Noodt published in 1988 fostered that initial inspiration.
[1.2] The remarkable modern biography of Noodt was published in
1988 by Clarendon Press (Oxford University Press). The publication is
titled The Life and Work of Gerard Noodt (1647-1725) Dutch Legal
Scholarship Between Humanism and Enlightenment, authored by the
late Prof GCJJ van den Bergh, then professor of the history of law at
the University of Utrecht, Netherlands. Prof van den Bergh undertook
a comprehensive study into the life and work of Gerard Noodt and his
subsequent publication favoured the entire legal fraternity with an
excellent addition to existing literature. His work ultimately inspired
the undernamed project participants to produce a modern translation
into English, as true to the original Latin text as reasonably possible,
of an important but largely inaccessible part of Noodt's work, being
his treatise The Three Books on Interest-Bearing Loans and Interest
named De Foenore et Usuris Libri Tres forming part of his composite
work named Opera Omnia.
[1.3] More about that part of Noodt's treatise, his prominence as one
of the greatest of Roman-Dutch jurists, the team effort in achieving
this publication, and the financial assistance towards the
accomplishment of this publication, will concisely be addressed
below.
[1.4] Prof van den Bergh's extensive biography facilitates a brief
capturing of the most important moments of Noodt's life and legal
works without recourse to other sources. The following concise
summary, extracted from and premised on that biography, is intended
to introduce the reader to this remarkable jurist.
[1.5] Thereafter a table of contents will be given facilitating easy
access to the topics covered by Noodt in his treatise on interestbearing loans and interest.
II.
GERARD NOODT (1647-1725): THE JURIST
[2.1] Gerard Noodt was born in Nijmegen in September 1647. He
studied at that university and thereafter at the universities of
Franeker, Leiden and Utrecht. After having been an attorney and
advocate for a brief period of time, he was appointed professor of law
at the University of Nijmegen at the age of 24. This was a short-lived
appointment due to the French invasion and occupation of that area,
shortly thereafter resulting in the unfortunate demise of the
university.
iii
[2.2] In September 1679 at the age of 32, Noodt left Nijmegen, took
up a professorship at Franeker University, and occupied the chair until
then held by Ulrik Huber, who was appointed to the bench of the court
of Friesland. Thereafter and at the age of 36, Noodt became professor
at the University of Utrecht from 1683 (where he filled the vacancy
left by Johannes Voet) until 1686, after which he finally settled (after
having spent his life up to that point in time in the provinces of
Friesland and Utrecht), at the University of Leiden in Holland.
[2.3] There he served, for the remainder of his life, (almost four
decades), the University of Leiden. He held the position of Professor
of Law and served two terms as rector of that famous institution.
[2.4] At the age of 66 Noodt's Opera Omnia was first published. He
died in 1725 at the age of 77 years and 11 months.
[2.5] The final edition of his Opera
approximately one year before his death.
III.
Omnia
was
prepared
NOODT’S MAJOR WORKS
[3.1] Noodt’s major works include the Probabilia Juris Civilis, first
published in 1674, consisting of essays on a variety of civil law topics.
De Civili Prudentia, his inaugural address at Franeker in October
1679, followed approximately five years later, and thereafter his
inaugural address at Utrecht in February 1684, titled De Causis
Corruptae Jurisprudentiae. Those addresses emphasised the gradual
historical development of legal science, the interrelation between
law and freedom and the importance of understanding the true
meaning of concepts of classical Roman law. In 1690 his two
monographs, titled De jurisdictione et Imperio Libri Duo and Ad
Legem Aquiliam Liber Singularis appeared, which addressed aspects
of both private and public law. Once again his interpretations and
emendations of Roman law texts characterised his work. In 1698 his
monograph De Foenore et Usuris appeared and from that year until
1710 virtually one new publication followed each year.
[3.2] Noodt’s approach to the subject of interest-bearing loans and
interest included an analysis of Latin terminology employed in Roman
law, an exhaustive treatment of the moral and legal justification for
the charging of interest, an analysis of existing and maximum interest
rates and the origin and termination of the obligation to pay interest.
That publication conclusively established his standing as an excellent
scholar and his command of the roots of Roman civil law.
[3.3] Further works of note were Noodt's first rectorial address at
Leiden in February 1699, titled De Jure Summi Imperii et Lege Regia,
in which Noodt based his arguments on natural law and humanistic
legal philology. Two years later appeared Jullus Paulus Sive De Partus
Expositione et Nece Apud Veteres, a controversial treatise concerning
the exposition and killing of children by the ancients. Four years later,
in 1704, Diocletianus et Maximianus Sive De Transactione et Pactione
Criminum concerning the transaction and bargaining over crimes
appeared. In 1706 De Rellgione Ab Imperio Jure Gentium Libera
iv
followed, an address in favour of the freedom of religion, and also
Observationum Libri Duo, an analysis and emendation of various texts
of Roman civil law. The law concerning deception in the formation of
contracts was the subject matter of his monograph titled De Forma
Emendandi Doli Mali In Contrahendis Negotiis Admissi Apud Veteres
which was published in April 1709.
[3.4] The last thirteen years of Noodt's life (1713-1725) produced a
treatise on usufruct titled De Usufructu Libri Duo, a single book on the
praetorian edict concerning pacts and transactions titled Ad Edictum
Praetoris De Pactis et Transactionibus Liber Singularis, as well as an
unfinished commentary on the Digest titled Commentarius Ad Digesta
Seu Pandectas, extending to the end of Book 27 of the Digest. Several
manuscripts of lecture notes also remained part of his academic
heritage.
[3.5] Noodt is considered to be one of the greatest Roman Dutch
jurists (van Zyl: Geskiedenis van die Romeins-Hollandse Reg,
Butterworths, Durban, 1979 p.492). He established himself as one of
the enlightened scholars of his time, and as an exponent of the
‘elegant’ school of thought following the Methodus Noodti, an
approach to jurisprudence which emphasised the need for true
historical interpretation of the Roman civil law texts and their
explanation in the light of humanistic considerations of justice and
equity and the law of nature. Prof van den Bergh (op.cit. p.181. et
seq.) considers the treatise on interest-bearing loans and interest to
be one of Noodt's greatest achievements. Yet Noodt's works have not
been favoured with translation of his original Latin texts into English
to the extent which befell other greats of Roman-Dutch jurisprudence
such as De Groot (Grotius) and Voet.
[3.6] Noodt's sometimes abstruse Latin style may very well have
discouraged potential translators. We accordingly hope that this
publication will contribute towards the unravelling of one of the
proverbial jewels of an expert historical jurist, who devoted much of
his productive time and energy towards the study of interest as the
‘Iife blood of finance’.
[3.7] For purposes of convenience the Latin foenus will be rendered,
in the English translation, as ‘interest bearing loan’, ‘loan at
interest’, ‘interest’ or simply, ‘Ioan’. The Latin usura (plural: usurae)
will be rendered throughout as ‘interest’, while the concept of sors
will be rendered as ‘capital’ or ‘principal’ in the sense of the amount
on which interest is paid. The terms ius civile (Roman ‘civil law’) and
ius gentium (the ‘law of nations’) will retain their Latin form. The
names of classical authors, legal or otherwise, will be rendered in
their established English form, eg ‘Justinian’ (Justinianus),
‘Constantine’ (Constantinus), ‘Ambrose’ (Ambrosius), ‘Basil’
(Basilius), ‘Isidore’ (Isidorus), ‘Jerome’ (Hieronymus), ‘Augustine’
(Augustinus), ‘Diocletian’ (Diocletianus), ‘Paul’ (Paulus), ‘Ulpian’
(Ulpianus), ‘Papinian’ (Papinianus), ‘Pomponian’ (Pomponius),
‘Aristotle’ (Aristoteles), ‘Horace’ (Horatius), ‘Livy’ (Livius),
‘Quintilian’ (Quintilianus), ‘Pliny’ (Plinius) and ‘Terence’ (Terentius).
v
[3.8] Reference to Justinian's Corpus iuris civilis (‘the body of civil
law’) will be abbreviated as Inst. (Institutiones or ‘Institutions’), D.
(Digesta or ‘Digest’ — also rendered as Pandectae or ‘Pandects’), C.
(Codex or ‘Code’) and Nov. (Novellae or ‘Novels’). The Code of
Theodosian (Codex Theodosianus) will be abbreviated as CTh.
IV.
PROJECT PARTICIPANTS AND ACKNOWLEDGEMENTS
[4.1] Each of the following four project participants contributed to
this publication: S J van Niekerk originated the idea of producing a
publication of this magnitude in order to add to existing historical
legal literature on banking law in general as well as the law of interest
in particular; JT Pretorius co-ordinated various efforts towards its
accomplishment; DM Kriel attended to the actual translation of
Noodt's Latin text. Ph J Thomas assisted towards the revision of Book
I and DH van Zyl revised the entire translation.
[4.2] Our sincere gratitude is extended to Pretoria University Law
Press, which undertook the publication of this work, as well as to
Nedbank for its financial contribution towards the costs incurred in
the preparation of the final manuscript, and also publishing costs. In
particular the keen interest in the work taken by Nedbank's Professor
Willem Kruger is highly appreciated.
SJ van Niekerk — Convenor
BA (RAU) LLB (SA) LLM (SA) LLM (RAU)
Advocate of the High Court of South Africa
Member of the Johannesburg Bar
JT Pretorius — Co-ordinator
B.luris (UP) LLB (Natal) LLM (UCT) LLM (London) LLD (RAU)
Professor of Banking, Law, UNISA, Pretoria
DM Kriel — Translator
D.Litt (Latin) (UP)
Emeritus Professor of Latin, University of Pretoria and UNISA
DH van Zyl — Revisor
MA LLB (UP) Dr Jur (Leiden) PhD LLD (UCT) DLitt (UFS)
Judge of the High Court of South Africa (CPD)
Former Professor of Roman Law and Legal History (UFS and UP)
May 2009
vi
TABLE OF CONTENTS
Book 1
Preface
3
Chapter I:
Summary of the divisions of the work
6
Chapter II:
Philological analysis of the words
foenus and usura
7
Chapter III:
Philological analysis of the words
foenus and usura (continued)
20
Chapter IV:
The moral justification for the
recovery of interest
26
Chapter V:
The moral and legal justification
for the recovery of interest
32
Chapter VI:
The moral and legal justification
for the recovery of interest (continued)
38
Chapter VII:
Loans at interest and letting and
hiring distinguishable? The arguments
of Chrysostomus
45
Chapter VIII:
Loans at interest and letting and hiring
50
distinguishable? (continued); the entitlement
to interest in cases of unauthorised
management, mandate and partnership —
the correlation between profit and risk
Chapter IX:
Consideration of Seneca's aversion towards
moneylending at interest
58
Chapter X:
Loans at interest with specific
reference to Mosaic Law
63
Chapter XI:
Loans at interest with reference to
principles of Christianity
77
Chapter XII:
Loans at interest: Canonic prohibitions
rebutted
85
vii
BOOK 2
Chapter I:
The system of interest payment in ancient
times
Chapter II:
Different terms used for Roman interest
rates
101
Chapter III:
Maximum rates recoverable in Roman
Law
107
Chapter IV:
Maximum rates recoverable in Roman
Law (continued)
112
Chapter V:
Interest recoverable at judicial
discretion
117
Chapter VI:
Interest recoverable at judicial
discretion (continued)
124
Chapter VII:
Exceeding the maximum rate recoverable: 130
maritime loans
Chapter VIII:
Limited instances of higher rates
recoverable
139
Chapter IX:
Antichresis and interest distinguishable?
144
Chapter X:
Concerning fixed interest for senators
and the imperial fisc/treasury and for
states
150
Chapter XI:
Concerning compound interest
155
Chapter XII:
Interest on collected fruit from either
things or inheritances
161
Chapter XIII:
Diverse abuses of, and remedies against,
usurious interest
166
Chapter XIV:
Justinian’s rules on interest
176
viii
95
BOOK 3
Chapter I:
On the sources of interest recovery
187
Chapter II:
On the sources of interest
recovery (continued)
194
Chapter III:
No agreed interest recoverable unless
fixed rate stipulated: Exception in
favour of bankers
197
Chapter IV:
Agreed interest on account of default
in contracts stricti iuris
202
Chapter V:
Agreed interest on account of default in
contracts bonae fidei
211
Chapter VI:
Interest recoverable on account of default 213
at judicial discretion
Chapter VII:
Interest recoverable on account of
default in cases of legacies, bequests and
promises made to the State
221
Chapter VIII:
Concerning fiscal interest
227
Chapter IX:
Default analysed
229
Chapter X:
Default analysed (continued)
237
Chapter XI:
Duration of the liability to pay interest
at judicial discretion in actiones
bonae fidei
246
Chapter XII:
Liability to pay interest at judicial
discretion excluded in actiones stricti
iuris; the effect of litis contestatio
250
Chapter XIII:
Interest recoverable as ‘loss of gain’
253
Chapter XIV:
Termination of the running of interest
255
Chapter XV:
The effect of tender and mora creditoris
on the running of interest
258
Chapter XVI:
The effect of prescription or creditor’s
271
neglect to claim on the running of interest
Chapter XVII:
The ultra duplum termination of the
running of interest
ix
275
TRANSLATOR’S NOTE
279
BIBLIOGRAPHICAL ABBREVIATIONS
281
APPENDIX ON MONETARY AND FINANCIAL TERMS
283
LATIN TEXT OF NOODT’S DE FOENORE ET USURIS
287
x
Book 1
Preface
The issue of interest-bearing loans and interest is an old one, and I
doubt whether any other question is more suitable for closer
consideration than this. Certainly no other subject is more
appropriate with a view to regulating equality within transactions.
Yet strangely enough no other issue has to the same extent been
subject to contradictory judgments of men. For interest was at one
time held to be just and honourable, at another godless and
disgraceful — let alone among the masses and the uninformed
common people who usually plod on mindlessly, but also among
intelligent people of excellent reputation and highly regarded dignity.
And yet this unfavourable view was due not to interest itself but to
the men who exploited interest-bearing loans and interest.
What aggravated the misconception was the fact that those men
who wanted to regulate by discipline the mores of other people with
the intention of censuring worldly vices, sometimes — as usually
happens — drew in the reins more tightly than occasion demanded,
almost as if to bring what was too unrestrained back to constraint. But
through ignorance of the reasoning that controls human endeavours,
the most that was achieved was that interest-bearing loans and
interest were forbidden.
And yet even the most severe laws and punishments could not
prevent the utilisation of money. On the contrary, as a result of the
avarice of the rich, interest began to be pursued without limit —
under another name.
And so the medicine from which health was expected in fact
brought about illness; and it became clear that it would have been
3
4
Book 1
better that interest — which after all was based on the ius gentium
and aimed at protecting the force and benefit of ownership — be
allowed in an acceptable manner, rather than that [the zealots]
proceed further than common sense would allow, as a result of the
reverence for an erroneous notion deceptively masquerading as a
moral duty.
But in fact it is fitting that a true and vigorous excellence be
distinguished from a hollow and imaginary one; it is in the interest of
all that the former, which is beneficial to the human race, be
preserved and fostered scrupulously and religiously, and that the
latter, which is harmful because of its groundless severity, be
resolutely renounced — unless there is something else which is more
suitable to what is true and useful in human affairs.
But what is wisdom itself, so greatly lauded through all the ages,
other than an understanding of what is true and useful? And it is the
right of each and every human being to have access in good faith to
this understanding — and nature which strives after what is useful and
good, does not stand in the way. Indeed, it would be worth the effort
to exert oneself in a matter of such unrivalled importance.
The reason is of course that commercial intercourse would not
survive without this1 and commerce is man’s only protection against
poverty in peace and in war, whether you are considering private
individuals or states, or princes, or, finally, the opportunity for cash
in hand in the greatest or smallest transactions.
I was not satisfied that I had along this line of reasoning reached
the finest thing of all, which is scattered far and wide through all
aspects of the science of civil law. I rather undertook to put together
a holistic model, which was in itself obscure and confused, and not
created once and for all as if by precept, and also not single and
unchanging, as most writers thus far represent it; but a form gradually
perfected, as happens with things which are shaped by the everyday
practice of those who use them, and something which is in the
meanwhile inconstant and changeable, in accordance with the usage
of the times and the customs, often openly but sometimes merely as
a consequence of a change in terminology, in order that an ineffective
law may be circumvented by an artful pretext.
Since I was of the opinion that those and indeed similar things
contribute a great deal of light and pleasure to this important matter,
I took notice — although it was a demanding task — of how much the
ancient authors, whose work had endured over a long time, allowed.
1
Ea can refer to several words in the preceding passage, but in fact refers to the
whole argument of usura being useful and good.
Book 1 5
There were also occasions when I blamed weaknesses in passages
to the copyists by whom the works of those people had been
transcribed, and attempted to relieve or remove the troublesome
parts with a healing skill which men who were leaders in mental
powers and in learning had never, or else without success, applied.
But everyone entertains high hopes of himself, and you, my
reader, would prefer substance to words. I therefore conclude this
preface, and will now present to you the expected arrangement of the
dissertation which follows.
Chapter I
Summary of the divisions of the work
I have divided this work, to which I have given the title ‘On Interestbearing loans and Interest’, into three books.
The first of these starts with the explanation of the meaning and
import of the terms as used in earlier and later times; then I discuss
in depth whether interest-bearing loans or interest are approved of by
the ius gentium or by divine law.
The second book covers the limits and range which, in accordance
with the diversity of people and causes, were either laid down by
antiquity or adapted by Justinian to his new law of humane conduct,2
either in terms of an agreement between those entering a contract or
on the authority of a judge. At the same time this book carefully
examines what greed, openly or craftily, devised as a countermeasure, and the remedies which prevailed against that greed.
The third book first investigates the reasons why interest
apparently is practised or else is abolished, and then concludes with
a route to follow which is useful and not unpleasant, although at times
rough and not generally known well enough.
But I shall first look at the meaning and use of words.
2
cp Justinian Inst. 1.6.2: ‘quod nostra constitutio ... constituit nova humanitatis
ratione’, also cp 3.2.7 and 3.6.10.
6
Chapter II
Philological analysis of the words foenus and usura
[Summary]
The oldest authors called an increase which is given to a creditor for
the use of his capital, not usura but foenus: with the word usura, they
did not, (at that stage), mean interest but the use of anything
whatever. Thereupon, owing to the general use of the word, the
notion took hold that the word usura could be accepted in the sense
of foenus.
Usura in that sense stood for the use of money or produce, but
not of corporeal objects. The ruling of Constantine in C.4.32.25 is
explained, with reference to the custom of the early jurists (C.4.2.8)
and to Ambrose De Tobia.3 Also in this sense Paul (D.22.1.17.8) says
‘that statues or busts which are to be erected, are bequeathed as a
legacy’, understood by the older jurists mainly to be marble statues.
What is given in return for the use of corporeal objects is not
called interest but rent, instalments and revenue.4
Yet it appears that interest is payment given in exchange for the
use of money or produce.
3
4
St Ambrose attacks greed and luxury among the upper classes in his De Tobia (Enc.
Of Early Christianity, ed. Ferguson et al. 1990.p.30).
For merces Berger gives ‘a payment (wages, salary, rent) in money agreed upon in
a lease or hire of services ...’.
For pensio he gives ‘payment by instalment, either of a part of a sum due or of a
sum due at fixed intervals ...’.
For reditus he gives ‘income, proceeds; often syn. with fructus’.
7
8
Book 1
The civil law often ascribes divergent names and laws to matters
which are the same, and likewise the same names and laws to
divergent matters. The reason why the early legal writers did not
define a specific contract for interest-bearing loans as they did for
other transactions, and why they did not include interest under the
heading ‘letting and hiring’ is discussed.
Foenus and usura can refer not only to money owed, but also to
other things.
The one condition for interest is that it be exacted in exchange
for the use of the principal.
*
*
*
The very early authors called the increase or growth which a debtor
gives to a creditor for the use of his capital, not usura but foenus. I
have come to this conclusion because of what Cato (at the beginning
of his De Re Rustica), and Plautus in his Asinaria 1.3 (at the end) and
his Mostellaria 3.1 and elsewhere, mention when they speak of
increase of the principal not as usurae but as foenus. But when in the
Prologue to his Amphitruo (v.108) Plautus says ‘and he took the usura
of that body for himself’5 he does not with these words imply an
increase of capital but the use of some or other thing. And not only
Plautus uses that word in this sense, but also Accius in his Oenomaus
(in chapter 3 of Nonius De indiscretis generibus per ordinem
litterarum) says: ‘and take this last enjoyment (usuram) of the sun’.6
Writing about nature, Cicero too says (Tusculanae Disputationes
bk I c.39 par.93) ‘She (i.e. nature) has given us a loan (usura) of life,
as of money, without any fixed term’. This is the original and proper
meaning of usura.
But the customary usage of speakers has deviated from this
meaning, and consequently it has become acceptable that the word
usura be used for foenus, that is, for the increase generated by use,
especially of money. Hence Isidore (Origines bk 5 c.25.15) writes:
‘Usura is the increase in growth in foenus, so named from the use of
money loaned’. Varro also says (De Lingua Latina bk 4.3):7
‘Compendium is that which becomes a single thing when it is
shortened’, and from this usura was called an impendium because it
5
6
7
The reference is to Jupiter's dalliance with Alcmene, wife of Amphitruo and
mother of Hercules.
Accius Oenomaus, v.500 in Warmington Remains of Old Latin vol II p 498.
Noodt’s reference to ‘lib.4’ should read ‘lib.5’.
Chapter II
9
was added into the principal; when it was (not)8 added to the
principal it was called usura from usus (‘use’) of the money, just as
principal is called sors because it becomes one’s own by sors
(‘accrual’). And this is not unique to the word usura, but occurs also
in other words. Cp. Priscianus bk. II 923 (ed. Putschius), where he says
‘others are both nouns and participles, such as scriptura (hJ γράψωσα
and hJ γραφή) usura or hJ χρησομένη and oJ τόκος or hJ χρήσις; litura is hJ
αjπαλέιψωsαj or hJ άjπαλοιφή. The same, or something similar, is said
about mercatura, by the author Nonius (c. 5 p.726); I quote: ‘merx
and mercatura differ in this respect that merx is the commodity
itself, whereas mercatura is the act itself or the profit accruing from
the commodity’.
So Suetonius (Caligula c. 40) spoke of captura in the context of an
indecent and vile remuneration,9 although the Glossarium of Isidore
also accepts that it could be in a context of deceit.
If we therefore look at the use of the word, usura is the increase
of money or produce which a creditor exacts from a debtor in return
for the use of his principal. I have said ‘increase of money’, in the way
that it is put in C.Th. 53.1.18 (de lustrali conlatione)10 ‘the increase
of money growing from day to day’. Africanus (D. 19.5.24) calls it ‘the
return of money’ (reditum pecuniae).
Tertullian (Adversus Marcionem bk 4 c. 17) calls it ‘a redundancy
and the fruit of a loan’; I quote:
He did not give his money as a loan at interest, and shall not accept
what is over and above [the principal], namely that amount exceeding
the loan which is usura. It was first necessary for him to do away with
the fruit of foenus: by this means he would the more easily reconcile a
man to the possible loss even of the money loaned, when first he had
been taught to remit the fruits thereof.
Usura is therefore an increase of money, but especially of money paid
over. Hence Festus says in his De Verbis Veteribus: ‘Foenus is the
name given to the natural produce of the earth, and for this reason
the produce of coins was also called foenus’. In his commentary on
Ezekiel (bk. 6, c. 18, p. 931) Jerome says ‘Some people think that
usura applies only to money’, and in his Origines (bk. 5, c. 35, p. 931)
Isidore says ‘Usura is a growth of foenus, so named from the use of
money loaned’.11
8
9
10
11
Mue’s emendation of the text.
Suetonius Cal.40: ‘ex capturis prostitutarum quantum quaeque uno concubitu
mereret’ L.& S. gives a secondary meaning of captura: ‘gain, profit (acquired by
low or immoral employments)’.
The collatio lustralis (or: aurum argentumque) was a special tax imposed on
merchants once in five years.
This reference to Isidore has already been given in the previous column.
10
Book 1
Yet it has become the accepted rule that if produce is owed, say
for example oil, wine or grain, then an increase from these can also
be owed (C. 4.32.12[11]), because of the varying and uncertain
valuation of those things, as [the elder] Pliny observes in his Historia
Naturalis (bk. 33.[13.164]):
The prices of things that I have here and there given, as we all know,
vary from place to place and almost every year, according to the
fluctuation in the costs of shipping, or as each market differs, or some
very powerful bidder whips up the price of commodities.
Indeed, because produce often has a high price when it is given on
loan, and when it is returned is sold cheaply, and if it is indeed
returned in the same and equally good kind, but without an addition
of interest of the same kind, the creditor could easily be defrauded,
since he gave it when it had a higher price and receives it back when
it is worth less. This is so because the principle of equality which has
to be observed in contracts in terms of the ius gentium, does not allow
this inequality, and it is something that could scare people away from
lending, and that means away from such an important support for a
temporary need, a support which we all in common need in life:
accordingly the consequence of the uncertainty of a price has been
that ‘interest’ is promised also in the case of produce.
And this is what the Emperor Philip12 has in mind when he says in
C.4.32.23:
In the case of oil or whatever other produce given on loan for
consumption, the consideration that the price is uncertain has been
decisive in allowing the addition of interest of the selfsame kind.
And not only Philip wants the use of usurae to be accepted in the case
of these products, but Jerome (loc. cit.), although in another context,
also supports this. I quote his words:
Some people think that interest relates only to money, and foreseeing
this error, divine Scripture forbids any form of superabundance, so that
one may not receive more than you have given. Interest is usually
exacted in the case of lands of grain and millet, of wine and olive-oil,
and of all similar types: or, as the Holy Word calls it, ‘abundance’. For
example: were we to give ten measures of grain in winter-time, and at
the time of harvest receive back fifteen measures, in other words 50%
more, anyone who considers himself absolutely fair will take a quarter
more, and normally their argument is ‘I gave one measure which was
sown, and it produced ten measures: surely it is only fair that I receive
50% more from what is mine, since as a result of my generosity the
lessee now receives nine and a half times from what is mine’.
12
In the editio stereotypa this constitution is attributed to the emperors Diocletian
and Maximinian.
Chapter II
11
Whatever the case may be, the fact is that interest is owed not only
on money paid over but also on produce, and that it is considered to
be an increase of or addition to either of them.
And I do not quite understand what moved Salmasius (De Usuris c.
20, page 615 et seq.) to come to the conclusion that ‘increase and
addition’ are properly used of interest, not on money, but on products
given on loan for consumption, for this is refuted by D. 31.70.1, C. Th.
2.18. and C.4.32.11.[12] and 23.
In those passages those terms are accepted without distinction
with regard to both money and produce. But in the work referred to,
Salmasius himself acknowledges that ‘concerning other interest the
term “increase” is generally used.’
Is interest then the increase derived [only] from money or crops,
or also from corporeal objects? Imagine a gold or silver object which
has been bestowed by fideicommissum, for example receptacles;
mora occurs in transfer: is an estimate of interest then to be made?
And if indeed the effects have been bequeathed with the intention
that they be sold and that the fideicommissa be paid with the money
which has been received in return, or the means of support be
provided, then (so writes Papinian) usura is owed, for the delay ought
not to be left unpunished. But if perhaps something has been
bequeathed with the intention that these receptacles be used,
interest can not be required without disgrace. (D.22.1.3.4)
But indeed Paul (D.22.1.17.8) says:
If a day has not been determined beforehand by those who have made a
bequest that statues or busts be erected, a fixed period must be decided
on by the governor; and if the heirs do not then erect them, they will
pay interest to the state of up to 4% p.a.
The statues or busts are proposed in the bequest and are to be
erected by the heir. Paul says that if the heir does not erect them
within the predetermined period, he owes interest to the state. He is
therefore of the opinion that interest must be paid on corporeal
objects, because he is of the opinion that they must be paid from the
money bequeathed for the statues.
But Constantine too begins by saying (C.4.32.25): ‘We have
decreed that lawful interest be paid or promised on gold and silver
and cloth in terms of a credit note.’ Why not? For if you were to have
regard to the essential feature of interest it points to the use no less
of objects than of sums of money. Why would it not therefore apply
equally to the increase of corporeal objects as to that of sums of
money?
12
Book 1
But let us finally settle this problem: As far as Constantine is
concerned (for I shall make him my point of departure) he must not
be understood to decree that interest is to be paid or promised on
wrought gold and silver, or cloth, that is to say on these corporeal
objects: this was not Constantine’s intention, although that is what is
believed.
With this clear law (it is after all, as the title shows, addressed ‘to
the people’) he rather wanted to explain how much interest ought to
be promised or paid when such corporeal objects have been given to
the debtor after having been evaluated. This is what he is driving at,
and it is not necessary to refer to many supporting sources: let us
simply examine what he actually wrote.
Constantine does not simply decree that when a credit note has
been drawn up, interest must be paid or promised for gold and silver
and cloth: but he decrees that when a credit note has been drawn up,
lawful interest be paid or promised for these things, that is to say only
12 per cent p.a., no more.
Let us suppose the following: you requested money on loan from
Titus. Since he did not have, or pretended not to have the money, he
gave you some wares — say wrought gold or silver or cloth — of which
the value had been agreed upon by both of you. Thereupon he
demanded an evaluation and based on that, higher interest than was
allowable, or lawful, namely 12 per cent p.a., was stipulated. A credit
note was drawn up: what interest is owed? ‘I decreed’ says
Constantine ‘that allowable interest, that is, only 12 per cent p.a.
(nothing more is allowable), be paid or promised’.
Thus Constantine decreed in a clear statute ‘addressed to the
people’. For in this manner the emperors Diocletian and Maximian had
previously replied in a rescript to a private citizen, a certain Proculus,
who consulted them solely about the act (C.4.2.8):
If instead of a loan of money which you requested from a creditor, you
accepted silver or beasts of burden, or other specific things of which the
value had been agreed upon by both of you, gold having been given as
surety, even though you promised the stipulator interest exceeding 12%,
nonetheless only the principal which has been specified by an agreement
of the parties, and under the heading of interest only lawful interest, is
rightly sought.
It is to be read thus: ‘only lawful interest’, that is, only 12 per cent
p.a., although it is commonly formulated as ‘only the lawful sum’,
which does not really make perfect sense.
But it appears that Constantine does not ask whether the interest
is owed in terms of gold and silver and cloth, but what amount can be
Chapter II
13
owed in terms of that valuation which was made of them when the
credit note was drawn up.
There was furthermore some motive, or rather semblance, of
avarice, in seeking here interest higher than that which was allowable
or lawful, in other words higher than 12 per cent p.a., inasmuch as for
example if an artifact of wrought silver or gold were to be broken by
the lender, it would not be seen as unfair that such a loss be
compensated by the borrower at an interest rate higher than that
which is allowed.
The author Ambrose says (De Tobia c.3):
But when mention is made of interest or of pledge the lender smiles with
down-cast eye-brows, and with a kiss welcomes the same man whom he
previously denied knowing, as if recalling a family friend, and invokes
the pledge of an hereditary affection, and tells him not to weep. ‘I shall
see’ he says ‘whether I have any money at home; on your behalf I shall
smash the skillfully forged silver which you inherited: the damage will be
very great. What interest will make up for the value of the ornaments?
But on behalf of a friend, I shall not back away from a loss, when you
return it, I shall have it repaired’.
So before he gives, he hastens to repair, and he who says that he is
assisting in the matter of the sum of money, demands interest.
‘On the first of the month’ he says ‘you shall pay interest: if in the
meantime you do not have the means to pay back, I do not seek the
principal’. Thus although he gives once, he regularly demands, and so
he brings about that one is always in his debt. With this ploy he
manipulates a man. So he first binds him with credit notes, and then
ties him up with his own oral obligations. Money is paid out.
I have now dealt with the view of Constantine.
I now come to Paul: now he did not think (D.22.1.17.8) that an
heir pays interest on statues, but on the inherited money with which
he was in terms of the will to buy and erect those statues. For the
statues to be erected are said to be bequeathed while it is actually
the money for the purchase and erection of the statues that is
bequeathed; finally, when the heir is instructed to erect the statue,
it must be done with the sum of money laid down by the testator. For
it is the custom for testators in this way not to bequeath the very
statues themselves, that is to say specific objects, but a fixed amount
of money which they wish to spend on the making and erecting of the
14
Book 1
statues. The following inscription in Gruter13 p.159 Inscription 9,14
gives an example of this:
MELIA ANNIANA AS TESTATOR INSTRUCTED THAT THE EMPORIUM BE PAVED
AND THAT AN ARCH BE BUILT AND STATUES PLACED ON IT IN MEMORY OF
HER HUSBAND QUINTUS LAEPICIUS SERGIUS15 BASSUS, SON OF QUINTUS
[SERGIUS BASSUS] AT A COST OF 600,000 ROMAN SESTERTII AFTER 5% HAS
BEEN DEDUCTED.16
Usually they specify the weight and also the material of which the
statues must be made and erected, and of this there is an example in
Gruter p.101, inscr. 9.17
IN HER WILL CAECILIA TROPHIME INSTRUCTED THAT A STATUE OF PIETAS
IN SILVER WEIGHING 100 POUNDS BE ERECTED IN THE NAME OF HERSELF
AND HER HUSBAND CAECILIUS SILO. HER HEIRS DECIMUS CAECILIUS
HOSPITALIS AND CAECILIA PHILETA ERECTED18 THIS WITHOUT ANY
DEDUCTION OF 5%.
This means that Caecilia Trophime provided in her will that a silver
statue of Pietas, one hundred pounds in weight, be erected in her own
name and in the name of her husband Caecilius Silo. For this is how I
explain this abbreviation P.C.19 where it is first used [in the
inscription], based on that passage from the will of Priscilla in Statius
Silvae 5.1 [189-191]:
Give enduring gold to the Capitoline temple
so that the face of the divine Caesar may gleam
on a statue weighing 100 pounds in gold,
and so betoken the love of his own true worshipper.
I also add to this the following inscription on marble from that same
collection of Gruter, p.1 Inscription 5:
IN HIS WILL THE SEVIR PUBLIUS NUMERIUS MARTIALIS OF ASTIGI
INSTRUCTED THAT A STATUE OF A PANTHEUM20 WEIGHING 100 POUNDS IN
SILVER BE MADE AND ERECTED WITHOUT ANY DEDUCTION
13
14
15
16
17
18
19
20
Dr Paul Hasse tracked down the Inscriptionum Romanarum Corpus
Absolutissimum (1616) of Janus Gruterus, checked each of these inscriptions, and
with his typical acuity advised me on a number of the stickier problems.
CIL III. 2922.
The CIL has SERG., and prints the numerals as follows: HS.DC.D.XX.P.R.,
explaining it (in Latin) as translated above.
In the CIL reading only DC has the line above it (denoting thousands), therefore
600,000. D.XX.P.R. is most probably the abbreviation for deducta vicesima Populi
Romani, literally ‘one twentieth having been deducted on behalf of the people of
Rome’.
CIL II.1474.
The CIL version has POSVER., not merely P., for posuerunt.
In the inscription the abbreviation PC in the third line stands for PONDO CENTUM,
and in the fourth line for PONENDAM CURAVIT. Statius has centeno pondere.
L & S s.v. pantheum: ‘the statue of a god, adorned with the symbols of several
other deities’.
Chapter II
15
From this it is clear that when Paul speaks of bequeathed statues
which are to be erected (D.22.1.17.8), it certainly is not specific
objects that have been bequeathed, but the money from which the
heir is to buy and erect the statues. And so I have also understood the
following inscription on stone (Gruter p. 111 Inscr. 3):21
TO THE GENIUS22 OF THE COLONIA IULIA VICTRIX TRIUMPHALIS
TARRACO.23
IN HIS WILL LUCIUS MINICIUS APRONIANUS, A DUOVIR QUINQUENALIS,
INSTRUCTED [THIS] TO BE ERECTED FROM 15 POUNDS OF SILVER.
And on p.67:
TITUS VIBIUS ZOTICUS, SEVIR AUGUSTALIS, INSTRUCTED IN HIS WILL THAT
A STATUE OF FATHER BACCHUS IN 200 POUNDS24 OF SILVER BE ERECTED,
WITH A GOLD-PLATED CHAPLET, A THYRSUS25 AND A TANKARD.
I interpret Pomponian (D. 33.1.7) likewise when he says: ‘It is also a
matter of the testator’s wishes, when someone has instructed that
busts be erected in a Roman town.’ And this, I think, is supported by
juxtaposing the opinion of Ulpian (D. 50.10.5) which reads as follows:
If a legacy or a fideicommissum has been left regarding a work of art, a
rescript of the late emperor Pius deals as follows with the amount and
date of inception of the interest to be paid: If indeed a fixed date has
not been set by those who have bequeathed as a legacy that statues or
busts be erected, a date must be decided upon by the governor of the
province; and if the heirs have not erected them by then, they must pay
nominal interest to the community within six months, if not 0,5% per
month. But if a date was indeed set in the will, they must deposit the
money before or on that day; if they either say that they do not find the
statues, or if they start a dispute about where they are to be placed,
they must pay 0,5% per month immediately.
Interest can therefore be owed on sums of money, but not on objects.
Why not, given that the old and proper meaning of the word allows it?
But when objects have been leased, that which is given in return for
their use, even when there has been default regarding due payment
or restitution, is called neither interest nor foenus, but rental or
instalments or proceeds or profits or quasi-fruits. (D.5.3.37.1 and 29;
D.7.1.7.1; C.3.33.13; D. 22.1.19 and 34 and 36). And in Paul Diaconus
De Notis Literarum the abbreviation AED.IN.M. is explained as Aedes
Inscripsit Mercede.26
21
22
23
24
25
26
CIL II. 4071.
i.e. the guardian spirit or tutelary deity.
This is the full, official name of the Spanish city Tarraco.
The text is not clear: Dr Hasse surmises that it could be 2 pounds of silver.
A staff with ivy and wine-shoots, characteristic of Bacchus.
‘He put up a notice that the house was for sale’ - the point being the use of the
term merces.
16
Book 1
And yet I would not deny that, all things considered, usurae and
foenus are returns on money, for so they are called by Scaevola in
D.34.4.30 and by Africanus in D.19.5.24 and in the following
inscription on marble (Gruter p.460 Inscr.3).27
... THIS MAN DURING HIS LIFE DONATED TO THE GUILD OF CRAFTSMEN OF
THE TOWN OF RAVENNA 30 000 SESTERCES, FROM THE RETURNS OF
WHICH WOULD EVERY YEAR BE DISTRIBUTED TO THE MEMBERS OF THE
GUILD OF CRAFTSMEN ...
Likewise in Carolus Caesar Malvasia's book on the marbles of Bologna
(Marmoribus Felsineis sect.3, c.6 p.111):
IN HIS WILL TITUS AVIASIUS SERVANDUS, FATHER, MADE A BEQUEST OF
400 000 SESTERCES IN THE NAME OF GAIUS AVIASIUS SENECA, SON OF
TITUS, TO THE EFFECT THAT FROM THE RETURNS ON THAT SUM, ADULT
MEN AND UNDER-AGED CHILDREN OF BOTH SEXES MAY FOR ALL TIME
WASH IN THE WASHING FACILITIES OF THIS BATH-HOUSE FREE OF
CHARGE.
I see that interest is also called mercedes (‘payments’) by Horace in
Sat.I.2.14 and I.3.86-88, and by Persius in Sat.6.67. To these I add
Pomponius28 Pistoribus (in Nonius29 under the entry Occupatus): ‘I
immediately saw to it that I took possession of 10 000 Victoriatus30
which I had brought with me, at Greek interest’.
But what is so strange about the fact that the same things are
assessed under different names and a different legal system, if we
take into consideration that the legal system which we use did not
come into existence at a stroke, that it observed custom, but that it
was initially confined within narrow limits, and then in different
times, at the call of expediency, was either mocked at or extended —
not, I would say, by statutes but often by debate in court, often by
edicts, often by decrees of senate, often by imperial decrees, and
that they gave different names and laws to the same things, and the
same names and legal rules to different things?
What Seneca says about the Stoics is very true amongst our
authorities (De Benefic.bk.2.c.35):
Certain expressions that we use, deviate from ordinary usage: then they
return to ordinary usage along another route.
27
28
29
30
CIL xi.126 (in part): dividerentur in the full text is here rendered ‘would be
distributed’.
Lucius Pomponius of Bologna, a dramatist, fl.89 BC.
Marcellus Nonius, encyclopaedist, early 4th century CE.
Silver coins stamped with the image of Victoria. [O.L.D. quotes this line, but
reads ‘Victoriata’].
Chapter II
17
And in De Constantia Sapientis c.3 he says: ‘And so with raised
eyebrow you stoop to those same things as all the others, having
[simply] changed the names of things’.
In this way the praetor does not grant an inheritance to an
emancipated son when he has been passed over by his father, since of
course he cannot make someone an heir, that is to say an owner, who
according to civil law is not an owner: but he does give him bonorum
possessio (‘possession of the goods’), in other words by changing the
terminology, he gives him precisely what he would have received had
he been an heir in accordance with the civil law (Inst. 3.9.2).
It was the same in the case of interest-bearing loans: as Tacitus
and Appian attest (in the passages to be added below, Bk.2 ch.4) it
appears that this term was disapproved of in the early years of the
Republic, and that even though it was subsequently adopted in
common usage and even confirmed by a law of the XII Tables, it was
nonetheless once again forbidden by the Lex Genucia, because at that
time the people in general were not very interested in extravagant
living or in trade, but on the whole considered only agriculture and
warfare to be honourable; furthermore the common people were
believed to be weighed down rather than assisted by interest-bearing
loans. For that reason those people who defined civil transactions did
not draw up a fixed and proper contract, such as loan for consumption
or loan for use or letting and hiring; but they also did not assign
interest-bearing loans to letting and hiring, of course because they
limited the latter to the use of objects, and did not extend it to sums
of money, since they had not yet realised the usefulness of the letting
and hiring of money.
And although the use of interest-bearing loans was subsequently
considered acceptable — induced as it seems by the realisation of the
benefit of purchasable time — it could not, however, be assessed in
terms of lease or its regulations, since the substance of the contract,
already accepted in civil law and not to be altered by private
agreements, did not allow it.
Thus it came about that rent, or instalments, or return on objects
were said to be received through leasing; the increase in sums of
money was, however, owed under the name foenus; and subsequently
usura, or poena (‘compensation’), was owed in terms of stipulatio.
Eventually the belief also prevailed that in the case of actions
based on good faith, interest was owed in accordance with judicial
discretion. And that this was not the case under the free Republic, I
shall point out in the appropriate place. So it must in the meantime
be observed that this was not — as far as I can remember — noticed
by anyone, although it is of the utmost importance for a thorough
18
Book 1
understanding of the origins and also of the subsequent additions to
this law.
Foenus, or usura, is therefore the increase in money or produce
which a creditor claims from a debtor for the use of his principal.
But is that return to be in the same kind as was loaned, or also in
another kind? And it is closer to the truth that if it has not been agreed
specifically that the debt be discharged in another kind, it is owed in
the same kind that was loaned. Accordingly, if coins have been
deposited in an interest-bearing loan, the interest is also in coins, but
if produce has been loaned, the increase of the interest is allowed to
be discharged in the same kind (C.4.32.23).
This then is the case if no other special agreement has been
entered upon. What then if it has been entered upon? We have
already established that interest is owed also in a thing other than
that which was loaned. I shall not look for an authority: St Augustine
will provide it (Concio 3 in part 3, Psalm 36 tom.8.pag.123) in the
following words:
If you lend to a man at interest, that is to say if you give your money on
loan to someone from whom you expect something more than you have
given — not only money, but something more than you have given,
whether that be wheat or wine or whatever else, if you expect to
receive back more than you have given, you are a moneylender.
C.4.32.16 deals with the same topic; where it is submitted that when
money has been received by way of a loan at interest, a certain
measure of wheat be given, and here nothing but the quantity is in
dispute.
To this can be added what Marcianus says in D.20.1.11.1: ‘If
άjνtιvχρηsις31 has taken place in exchange for what was loaned, and
someone is brought onto a farm or into a house, he retains possession
of it by way of a pledge until the money is paid to him, since he
receives the fruits as interest, either by leasing, or by gathering it
himself while living there.’ And in C.4.32.17 the emperor Philip
provides the following example: ‘If your mother has obligated her
possession to a creditor under the stipulation “that fruits would be
acquired in the place of interest”, the agreement cannot be rescinded
by the pretext that a greater profit has accrued, because the yield of
harvests cannot be determined beforehand.’
Alexander also says (C.4.3.2.14) ‘If your wife has given a loan
subject to a clause that “in place of the interest she would live in the
home”, and she kept the pact as agreed, and no rent was paid, then
31
‘substitution of usufruct for interest’ Liddell & Scott (see Berger s.v. antichresis).
Chapter II
19
it is not at all necessary that the question be raised whether the
house, had it been leased, would have brought in more than the
calculated legal interest.’ Therefore interest can in terms of the
agreement entered upon be settled in a kind different from that
which was loaned.
Finally, the definition of interest demands that a creditor exacts
it from a debtor in return for the use of his principal. And this is what
Varro and Isidore appear to have meant in the passages cited above,
when they say that usura was so called from the use of principal or
money loaned.
Papinian, too, writes that interest is received on account of use in
the intervening time. (D.36.1.60.58.6). But Ambrose, too, when
dealing with money of moneylenders, says in De Tobia (c.5): ‘Use is
required for interest to be acquired.’
And that is absolutely correct, as Florentinus writes (D.2.14.57):
‘He who has received interest from a debtor in advance, appears to
have tacitly agreed that he will not demand the principal within that
time.’
And Ulpian approves of this in D. 44.4.2.6. This is also clear from
Paul's remark in D.22.1.16.1:
When interest on the price of a farm was claimed from someone who had
bought it from the treasury, and the buyer denied that possession had
been transferred to him, the emperor decreed that it was unfair that
interest be exacted from someone who had not acquired the fruits.
Rightly so, for equity demands that in general interest is not owed to
someone to whom money is owed for something that he in turn ought to
deliver, not even in terms of a stipulatio, unless he himself first delivers
that to which he was obligated, as is clear from D.24.3.42.2 and
D.23.3.69.3.
Chapter III
Philological analysis of the words foenus and usura
(continued)
[Summary]
When interest is payable on account of curbing default, it is called
poena [i.e. a penalty]; if it refers to the reparation of loss, it appears
to be id quod interest;32 if it has profit in view, it is rather named
usura, and by its older name foenus. Salmasius has no grounds for
disagreeing with the ancient grammarians on the origin and proper
meaning of the word foenus. Foenus is fully acceptable for principal,
but properly used for usura. The opinion of Nonius is explained,
preserving the old textual reading, contrary to Salmasius. How usura
is distinguished from foenus, after it began to be owed on account of
default in actions based on good faith, in accordance with judicial
discretion. Why the title ‘De nautico foenore’ is used rather than ‘De
nauticis usuris’ in the Pandects and Code.
*
*
*
But now that the meaning and the use of the name is understood quite
clearly and fully, we must go on to observe that interest is owed
either on the grounds of default or on the grounds of an agreed time
clause (D.12.1.40). And if it is owed on account of default, then if we
were to consider the debtor, interest generally relates to the limiting
32
Literally ‘that which is of interest’ i.e. ‘loss’ or ‘general damages’.
20
Chapter III
21
of failure on his part (D.22.1.3.4) and it is accordingly called poena
(‘a penalty’) (D.12.1.40; D.45.1.90); but if you consider the creditor,
he at the least intends to make good the loss he suffers on account of
the debtor's default, and in this case it seems to be loss suffered by
the creditor rather than interest. Labeo, and based on him,
Pomponian, cite D.17.2.60.
But Paul too (D.22.1.17.3), in dealing with interest in the case of
legacies and bequests which must be paid on account of default, says
(taking as example actions based on good faith) that interest is
imposed not for the sake of the profit of those seeking it, but on
account of the default on the part of those who have to pay.
And it need not seem unusual to anyone that interest which is
owed on account of default on the one hand is called id quod interest
and on the other hand poena; for the assessment of benefit by a judge
in respect of default on the part of the promiser, in the actio de eo
quod certo loco, is called id quod interest by Ulpian and poena by Paul
(D.13.4.2.ult.). Interest can also be owed from the day proposed in an
agreement, recalls Basil in his Homily on Psalm 1433 p.149 tm.1; I
quote:
All seeds sprout at their allotted time, and animals, too, bring forth
their offspring at their predetermined time. But interest takes its
beginning today, it starts bringing forth today.
Paul makes the same observation at the end of D.12.1.40, saying that
this especially applies if it has been expressly stated in the stipulatio.
The Greek jurists were aware of this — see Basilic. lib.23 tit.l tom.3,
p.309 and the Scholia on D.12.1.40. But in that case the matter is
concerned with profit and by way of pretext is called usura on the
authority of Pomponian D. 17.2.60 and by the older and more proper
name foenus (as I pointed out above).
In this sense Ambrose (De Tobia c. 12) says: ‘Money lent on
interest increases imperceptibly from the day of the agreement, as
the interest grows.’
And Seneca (De Beneficiis 4.2.3) says:
To look around not where you may best invest but where you can have
the best profit and from where you can most easily withdraw — that is
not a benefit but foenus.
Suetonius says in his Augustus34 c.39: ‘And he noted that some people
who had loaned money at lower rates of interest, had invested that
money in a loan bearing higher interest.’
33
34
Psalm 15 v.5 in the New English Bible.
Noodt calls it the Octavius.
22
Book 1
Donatus, in his commentary on Terence Adelphi 2.2 says: ‘What
has been lent at interest is given back and multiplied with profit.’
Correctly so, for the word foenus is derived from fetus [‘a bringing
forth’], and so to speak from fetura [‘a procreating’]. Under the entry
fenus Festus says:
The natural product (fetus) of the earth is called fenus, and for that
reason the produce of money was also called fenus, and from that we
have leges fenebres [‘laws relating to interest’], fenus and feneratores
[‘moneylenders’], and the law on money that has been loaned was
called the lex fenebris from fetus, because coins that have been loaned
bring forth other coins: likewise the same thing was called τόκος
[interest] by the Greeks. Hay on the fields was also for this reason so
named, since that too, remaining in the ground every year brings forth
new produce, whence festuca [‘stalk’] has also received its name.
Aulus Gellius (Noctes Atticae 16.12) says virtually the same:
For a moneylender (fenerator) derives his name from fenus, as Marcus
Varro wrote in De Lingua Latina bk.3. Furthermore, fenus is so called
from fetus, from a kind of bringing-forth (fetura), so to speak, of money
which brings forth and increases. That is why Marcus Cato and his
contemporaries pronounced fenerator without the letter a, just as fetus
itself and fecunditas was pronounced.
Nonius, too, says (c.1 p.513):
Fenus is derived from the fact that it begets money as time increases, a
fetus, so to speak, or a fetura. For the Greeks for τόκος also say άπο τώ
τίκτειν, which is parere [‘beget’].
Varro (De Lingua Latina bk.3) says:
‘Besides, fenus is so called from fetus, and form a kind of fetura, so to
speak, of money’. For he maintains that ‘Cato and all the other men of
old pronounced the word fenus without the letter o, as also fetus and
fecunditas’. This is the opinion of the writers of old.
But Salmasius (De Usuris c.2) holds the view that foenus does not
indicate the offspring of the principal, but indicates the principal
which brings forth, inasmuch as it is derived from ποινή or πόινος
which means rent or price or damages. For that reason, money loaned
on condition that in return for its use something be paid by way of a
rental, is properly called foenus; money is also sometimes given on
loan on the understanding that if it should not be repaid within a
predetermined period of time, an increase would be paid by way of
damages for the default. Therefore Salmasius holds that foenus
indicates not interest but the principal, and that is called something
like foinos, from which was derived foenor foenoris and eventually
foenus foenoris.
Chapter III
23
But the opinion of Salmasius is unacceptable, for even if it be
conceded that foenus is derived from ποινή [as he says], why should
foenus denote the principal rather than interest, which is the
payment for the use of money, in other words ποινή?
But Salmasius also has no reason to disagree with the authors of
old about the origin of the word: they probably derived fenus from
fetus, or — as Vossius surmises in his Etymologicon, from the ancient
and obsolete word feo — hence, fetus, fecundus and femen, femina,
in the same way as φω` was derived from φαvω, and φw` later became for
fari; hence by a similar lengthening fatum was formed, as was
facundus and fanum.35 And that conjecture is supported by the fact
that Cato and the other older authors wrote fetus, fenus, fecunditas,
not as did later authors, with a diphthong but with the single letter e,
as was said above by Gellius and Nonius.
The result of all this is that if the origin and the proper meaning
of a word is sought, fenus is not the money which brings forth, but it
is the offspring born from that money, although by common usage it
became acceptable that it could also be used for money lent at
interest.
Nonius points to both possibilities in the following words:
A loan for consumption differs from an interest-bearing loan in this
respect, that a loan for consumption is taken without interest, and it is
the foetus of what has been received, whence it was then called foenus,
as in Greek τόκος, the offspring, so to speak, of the loan for
consumption that has been taken.
In his Asinaria Plautus says: ‘For if I am unable to take it as a loan for
consumption, I shall certainly take it as an interest-bearing loan.’
Hence a loan for consumption is more honourable when it is done with
friendly affection, yet it is quite proper to take it at interest, at a
time of need. So far Nonius, but incorrectly, according to Salmasius in
De Usuris c. 2 p. 29, where he writes:
And Nonius is right when he says, as I have already quoted above, ‘a loan
for consumption differs from an interest-bearing loan, in this respect,
that a loan for consumption is taken without interest, whereas an
interest-bearing loan is taken with interest’. If money lent at interest
attracts interest, it differs from interest as such, for who would say that
interest attracts interest? But what he adds does not seem to tally: ‘and
it is the foetus of the received amount: hence it is also called foetus, as
in Greek τόκος, as it were the offspring of a loan for consumption that
has been taken.’ But this must be understood in the sense that he said
this about interest which is the offspring of the received interest-bearing
loan, which is why it was called foenus. And it should certainly be
35
fatum — ‘destiny’; facundus — ‘eloquent’; fanum — ‘sanctuary’.
24
Book 1
written as follows: ‘foenus is taken with interest, and the interest is the
offspring of the received amount, hence called foenus.’ And foenus is
taken with interest, and that interest is the offspring of the received
foenus, and hence the name foenus. Yet the same sense arises from
everyday language, when there is a reference to πρός τό σημαινόμενον
— as if interest preceded.
Thus Salmasius, and hence he concludes that foenus is that which
brings forth money, that is, usurae. But Salmasius is mistaken, for
Nonius points out two things: firstly that a loan for consumption is
money, or principal, loaned by a friend without interest; foenus,
however is money, or principal that has been loaned by whomsoever
else, subject to interest; and he proves both with the reference to
Plautus; to which you may add Modestinus in D.12.1.33, for in the
same sense he says that it is decreed by the imperial legislation ‘that
those who govern a province [or those in their circle]36 are not to
engage in trade, or give money on loan, or lend money at interest.’
The words, too, of the Emperors Arcadius, Honorius & Theodosian
in C. Th. De denunt. vel edit. resc. bk 2 tit.4 support this:
If someone has undertaken a debt either from money borrowed at
interest or from money borrowed in a loan for consumption, or from any
other title whatsoever and after the guarantee has been made was
converted into a formal written contract, etc.
Thereupon Nonius holds that foenus is understood not only for the
principal itself, but also for the interest promised from the principal,
for this is what the following words show:
And it is the offspring of what was received, whence it was named
foenus, as in Greek τόκος, as being the offspring, so to speak, of the
loan for consumption that has been taken.
I once conjectured est et [for et est] accepti foetus, but there is no
need for an emendation — neither by Salmasius nor by myself, for the
sense is, quite naturally, that foenus is taken with interest, since it is,
properly speaking, the foetus of what has been received; and from
that foetus it is named foenus. And it is as Nonius says: foenus is
correctly taken for the interest-bearing principal. And that Salmasius
proves with many cross-references, to which I may add Ambrose De
Tobia c. 12: ‘How many names did they invent? Money is given and
called foenus; “principal” is said, and named “capital”’, and so often
in other passages.
Foenus is also used for interest owed on the principal, as Nonius says,
and even though Salmasius denies this, it is clear from what has been
36
quive circa eos sunt (omitted by Noodt).
Chapter III
said above, and furthermore
D.24.3.42.2, D.36.1.60[58].2.
from
C.Th.4.19.1,
25
D.33.2.24,
And not only in the works of our fellow jurists but also in Plautus
(Mostellaria 3.1; Pseudolus 1.3), Cornelius Nepos (The Life of Atticus
c. 9.3) and others: as Desiderius Heraldus observed long ago in his
Animadvers. in Salmasium obs. ad jus Attic c. 24, and above all that
renowned and learned gentleman Johannes Fredericus Gronovius in
his Mantissa pecuniae veteris, ch.1.
I have now stated what the proper and true meaning of usura and
foenus is in a Roman court. I shall now add that that meaning was
maintained there until interest became due for default in accordance
with judicial discretion in actions based on good faith.
For from there on it was decided that whenever something was
owed in terms of an agreement, it was to be called foenus, but usura
if it was delivered either according to that agreement or in
accordance with judicial discretion (D.20.1.13; D.19.5.24; D.13.4.8;
D.16.3.24; C.4.34.4.) But if, in accordance with judicial discretion, it
is owed on account of default, it is never called foenus.
And in my opinion that is the reason why the title in both the Code
and the Pandects is De nautico foenore rather than de Nauticis Usuris.
For nautical or maritime interest (as it is called in D.22.2.6 & 7) is
never owed in accordance with judicial discretion, but always in
consequence of an agreement.
That is how I reason. Salmasius follows a different reasoning (De
Usuris c. 2 p. 24) which he calls the truest one, namely that in a
common loan for consumption interest runs successively, and is paid
in accordance with the period of the loan separately from the
principal itself; in case of a maritime loan, however, there is an
agreement that the principal must be repaid, together with the
interest, at the end of the voyage.
Chapter IV
The moral justification for the recovery of interest
[Summary]
In the true use of usura or foenus there is nothing which would be
disapproved of by a good and wise man. A contrary view is held by
Cato, Aristotle, Seneca, Lactantius, Ambrose, Augustine, Chrysostomus, and the authors and interpreters of Canon Law.
*
*
*
But whatever the origin of usura may be, it has been received in civil
law. But rightly so? Yes, in my opinion. For if you look at its true and
proper use, what reason is there for a wise man to censure it? For it
more or less aims at the correction of the inequality which is brought
about by taking someone else's benefit, through increase of the
principal. This increase is as much a consequence of the division of
ownership which reason devised for the common benefit of human
society, as is buying, selling, leasing, hiring, bartering; which is the
reason why Marcianus (D.48.22.15) very correctly includes foenus on
an equal footing with buying, selling, leasing, hiring and bartering of
things in the ius gentium.
And who can approve of the following opinion of Cato in his De Re
Rustica [proem]?
‘It is sometimes permissible to grant the right to seek gain with
merchandise, if it is not too hazardous, and likewise to lend at
26
Chapter IV
27
interest if it is duly honourable. For our ancestors held the opinion —
and so they laid down in their laws — that a thief should be sentenced
to a twofold penalty, but a moneylender to a fourfold one. From this
one can judge how much lower they rated a fellow citizen who was a
moneylender than a thief.’ Unless, of course, it would become clear
that he was talking of interest-bearing loans made contrary to law,
since the fourfold penalty which he mentions did not apply to all
moneylenders, but only to those who lent money at a higher interestrate than was the custom, as will be pointed out below on the
authority of Asconius Pedianus, (in Divin.p.27).
Yet Aristotle, too, condemns interest (De Republica bk I ch.10,
p.309 tom.3), arguing as follows:
But that [usura] which consists of the bartering of money is deservedly
censured (since it is not consonant with nature, since in this case one
person is hunting for profit from another); the whole system of
moneylending is with very good reason hated by all, because profit is
sought from the money itself and they37 do not acquire it for the
purpose for which it was created; for it came into existence for the sake
of exchange, but foenus increases and multiplies it; and that is also
where the name comes from. For those things that are brought forth are
similar to those things that beget and procreate; and in the case of
foenus there is a bringing forth and an offspring of money. For that
reason of all the means of seeking to acquire money, this is the one that
is most seriously inconsistent with nature.
Seneca, too, inveighs against interest (De Ben. 7.10.4) in these words:
I see there documents, promissory notes, guarantees, — all empty
symbols of possessing, the shades as it were of avarice in labour — by
means of which they deceive a mind which rejoices in believing in
inanities. For what are those things actually? What is an interest-bearing
loan, what is an interest-book of a moneylender, what is interest — other
than terms for human cupidity sought beyond the bounds of nature? I can
indeed complain against the laws of nature for not hiding gold and silver
more deeply, and for not giving them a weight too heavy to be
extracted. What is the meaning of all those account-books, records,
time for sale and bloodstained 12% p.a.? They are merely voluntary evils
deriving from our system, in which there is nothing that can be
scrutinised by our eyes, that can be held in our hands — mere dreams of
empty avarice.
I leave out the Christian authors, of whom Lactantius (Divinae
Institutiones bk 6 c18) defines a just man as follows:
If he has lent out money he will not accept interest on it, so that his
kindness when assisting a need may remain unimpaired and so that he
may entirely stay away from what belongs to someone else. For in this
37
i.e. the moneylenders.
28
Book 1
kind of duty one must be content with what is your own, and on the
contrary one ought not even to be frugal with what is your own, in order
to do good. For to receive back more than you have given is unjust, and
he who does that, in some way plots to prey on the need of another. But
a just person will never forego a chance to act compassionately, nor will
he defile himself with profit of this kind; but he will see to it that the
very thing which he lends be reckoned among his good deeds.
Ambrose is equally strict, although more briefly so (De Bono Mortis
c.12), in a passage from Gratianus (c.14 q.4 cap.10)38 which is extant
in this form: ‘If someone receives interest, he commits robbery, his
life is no life’.
So say those who put interest on a par with plunder and robbery;
but how can they do that, inasmuch as interest is paid by a consenting
person in terms of a concluded agreement? But Ambrose holds the
opposite view in De Tobia ch.3:
Such are your acts of kindness, you rich people! You give less and exact
more. Your humanity is of such a kind that you plunder even while you
assist. Even a poor man is a fertile source of profit for you. According to
your conclusive argument the moneylender is a needy person: he has
that which he can give back, but he does not have that which he can
spend.
Ambrose says ‘that which he can spend’, that is, that which he can
pay as interest, for expense is interest — see Varro De Lingua Latina
bk. 4 and Cujacius Obs. bk.10 c.36. Thus Ambrose. The opinion of
Chrysostomus in his commentary on Matthew 1739 in Homil.56 is no
different:
Please don't tell me he is happy and grateful that you give him money at
interest, for he has been compelled to do that by your cruelty. For even
when Abraham handed over his wife to the barbarians,40 he found a way
for his wife to be accepted more easily — not willingly, however, but
driven by fear of the Pharao. So too, is a poor man compelled, once you
deem him unworthy of that thing, to be grateful for your cruelty. But to
me it seems that if you delivered a man from dangers you demand a
reward for having freed him.
So interest is wicked and detestable, because a creditor receives
more from a debtor than he gave him, the debtor not so much
consenting as being compelled by necessity: and this for assistance
which the creditor ought to have given voluntarily, as demanded not
only by human kindness but also by the basic principle of a loan for
consumption, which is by its nature gratuitous. And if this is indeed
so, interest seems to be a skill of wickedness, like highway robbery,
38
39
40
i.e. Decretum Gratiani part 2 Causa 14, quaestio 4, canon 12.
Probably vv.24 - 26.
See Exodus 20.
Chapter IV
29
burglary, pimping and witchery. This is what St. Augustine writes in
his commentary on Psalm 12841 (Paris.tom.8.pag.615):
Moneylenders even have the audacity to say: ‘I have nothing else of
which to live.’ This is what a robber would also tell me if I caught him in
the act; this is also what a burglar would say if he should be
apprehended in the vicinity of someone else's property; this is also what
a pimp would say when buying girls for prostitution; likewise a sorcerer
chanting evil spells and offering his cunning for sale. Were we to
attempt to forbid any such practice, they would all reply that they had
nothing [else] to live from, because they fed themselves from it — as if
this were not especially to be castigated in them, that they chose an evil
practice in which to pass their life, and that they wish to feed
themselves from a source whence they would offend Him by whom all
men are fed.
Thus St Augustine, and to this you may add the view of an unidentified
author (perhaps Chrysostomus, or someone else) in the commentary
on Matthew 21, (Homil.38.tom.I, Opera Chrysostomi p.907):
But a person who procures a thing in order to make a profit by selling
that same thing unchanged, is a merchant who is cast out of the temple
of God. Hence a moneylender is more accursed than any merchant. For
if he who sells a thing that he has procured is a merchant and accursed,
how much more will he be accursed who gives money that has not been
acquired but given to him by God, with a view to interest? Secondly, a
merchant gives a thing without intending to claim it back, but after the
moneylender has loaned at interest, he both claims back his own again,
and also takes what belongs to another together with it.
And not only individual citizens have been averse to interest, but also
the Synod of Nicea; although it does not reject interest in every case,
but specifically in the case of the clergy, for it is to them that [the
Decretum Gratiani](part 2 Causa 14 Quaestio 4 quoniam) refers. For
whomsoever may wish to examine the words of the canon, I quote
them here:
Since many clergymen who out of greed pursue filthy profit, have
forgotten the divine injunction which states: ‘he who has not given his
money with a view to interest’,42 and when lending at interest demand 1
per cent per month, this hallowed Council has decided that if after this
decree anyone is found to receive interest or to pursue filthy profit by
any similar business whatever, or even to give any type of grain with a
view to 50 per cent more [than the quantity given] — that everyone who
attempts anything of such a nature with a view to gain be expelled from
the clerical order and be considered as not belonging to the
ecclesiastical ranks.
41
42
The Vulgate numbering of the Psalms differs from that of modern editions of the
Bible.
Noodt bracketed this quotation of the ‘divine injunction’ in Psalm 15(14) v.5.
30
Book 1
This proclamation of the Council does not speak of the matter in
general, but specifically concerns clerics, and when in their case it
indeed prohibits 1 per cent p.m. interest on a cash loan but 50 per
cent gain on corn, it must be considered to forbid interest. For this
restriction on interest in both the above cases (I have said above that
in both interest, so to speak, is paid) is as much as the emperor
Constantine proclaimed in C.Th. 2.33.1, which belongs to the same
year as that Council. And this was well observed by that most learned
man Jacobus Gothofredus.
The emperor Basil, at the urging of his son Leo the Philosopher,
went further in his Novella 83, and his proclamation is preserved in
the Promptuarium. bk 3 title 7 of Harmenopolus, although the latter
ascribes it to the son of Basil. I quote:
Although payment of interest seemed tolerable to most of our
forefathers — perhaps due to the vexation and inconvenience
experienced by creditors — we have however judged it to be clearly not
becoming to our Christian state, and to be rejected and denounced as
something forbidden by divine law. And therefore our Serene Highness
forbids anyone at all to receive interest in any business deal, to prevent
us from violating the law of God while we are too zealously dedicated to
upholding the law [of men]; but even if somebody takes the slightest
amount, it must be set off against the principal. Subsequent Popes also
decided to forbid all people to receive interest, as being abominable
according to the law of both the Old and the New Testament (tot.tit.X
de usuris).
They also appended penalties — very serious ones at that — if anyone
was accused of contravening this edict, for at the Lateran Council,
Alexander III decreed that overt moneylenders would not be admitted
to the holy sacrament, and if they were to die while in this state of
sin would not receive a Christian burial, and that none of them would
receive offerings [of wine and bread for the Eucharist]43 — something
like Cicero's view in de Legibus 2.16.41:
Let the wicked not dare to placate the gods with gifts: let them listen to
Plato, who allows no doubt about what the judgment of God would be in
such a case, since no good man would wish to receive a gift from a
dishonest man.
But to encourage us to do this, Alexander furthermore decreed that
anyone who has received the offerings of wine and bread from a
moneylender, or has allowed him a Christian burial, must both give
back what he has received, and also, until he satisfies the judgment
of his Bishop, remain suspended from the execution of his office.
(Canon Law quia in omnibus X, under the same title). But Gregorius
the Tenth also ordered that no one may be involved in the wills of
43
oblationes (see Niermeyer s.v.).
Chapter IV
31
overt moneylenders, or admit them to confession, or grant them
absolution, unless they compensate for the interest, or furnish a
suitable warranty regarding compensation to the best of their ability;
also, wills of overt moneylenders made in any other way are not valid,
but are by law null and void (Canon Law quamquam in Sexto, eodem
titulo). To these Clemens (v.de sententia Consilii Vienensis — Canon
Law unic. Clementin. eodem titulo) added a decree that whoever
ventures to assert obstinately that extracting interest does not
constitute a sin, was to be punished as a heretic. Hence the view
became prevalent that interest resembles sin, and is condemned by
both divine and natural law, and cannot be condoned by the pardon
of an archbishop.44
And of the same opinion is — not to mention others — Andreas
Alciatus (Parerg.45 bk. 6 c. 20). Didacus Couvarruvias (Var. resolut.
bk.3 c.1 n.5 & 8) also adds that this was very frequently commented
on with the approval of everyone (Canon Law super eo de usuris), and
that the same applied in the case of secular rulers, and in any
customary law, however much neglected. Others who also subscribe
to this opinion are Ludovicus Molina (De justitia et iure, tom.2 de
contractibus disp. 304 n.19), Franciscus Hotmanus (Disp. de foenore
c.1 & 3), Antonius Faber, De erroribus Pragmaticorum p.1 decad. 10.
error 1.n.1), and recently a learned gentleman, whoever he may be
— for he did not give his name46 — who wrote in French Les loix civiles
dans leur ordre naturel bk.2, tit.6, p.271 et seq. tom.1.
44
45
46
Summus Pontifex can refer either to an archbishop or a pope.
Parergon Iuris libri tres (1539).
Jean Domat (1625-1696).
Chapter V
The moral and legal justification for the recovery of
interest
[Summary]
The main justification for interest is that which is paid on the basis
of default, whether it be with a view to compensating for loss or as
a penalty. During the time of the free Republic47 that interest was
not owed if there was not an oral agreement, not even in the case of
bona fide actions. After the Republic was transformed, Labeo tried
to do something with a contract of partnership, not directly but
under the guise of ‘that by which he would benefit’.48 Thereupon the
emperors allowed interest on the grounds of default, in accordance
with judicial discretion in all bona fide actions. The correct
interpretation of Pomponian in D.17.2.60 has not yet been noticed by
other writers.
*
*
*
It would be worth a great deal of trouble to investigate somewhat
more carefully to what extent [the foregoing opinions] were rightly
held. For if either an interest-bearing loan or interest is such a
disgraceful thing, if it really deserves such an awful denunciation — as
so many distinguished and admirable men have over so many
47
48
i.e. 509BC-27AD.
Berger s.v. id quod interest ‘that which I have lost and what I would have gained’.
See n 32 above.
32
Chapter V
33
centuries both privately and publicly advocated and until this day
advocate — then indeed anyone who has respect, I would not say only
for moderation, but also for himself, should surely abhor it. But if it
is admitted by the ius gentium, and if it is not prohibited by divine
law, to what benefit would it be to consider as base and dishonest
something that was designed for universal benefit, and to withhold
from people something without which commercial dealings of men, in
peace and war, in the greatest and smallest matters, cannot be
carried on?
It is therefore a matter of greater importance than any other, and
deserving fuller investigation.
So I shall start off with bona fide actions, and I shall point out
below that in these cases interest stemming from default is to be paid
in accordance with judicial discretion. And Pomponian (D.17.2.60)
provides a neat specific problem, which I have decided to explain
since it contains a fairly difficult reasoning which has not yet, to my
knowledge, been fully clarified.
Pomponian writes in his commentary on Sabinus bk 13:
Labeo says that a partner who has defaulted in repaying the profit which
he has made out of that partnership, when he himself has used the
money, should also have to pay interest; but not interest proper, but as
the benefit which would have accrued to his partner had he not
defaulted; but if he has either not used that money, or has not
defaulted, the contrary applies. Likewise no such estimate is to be made
on account of an act on the part of an heir after the death of a partner,
since a partnership is dissolved by the death of one of the partners.
So reads the text of nearly all the manuscripts, even the
Florentine one, but it should read reddendo moram adhibuit, aut cum
ea ... [‘defaulted in repaying the profit ... or when ...’] which is the
absolutely correct conjecture of Jacobus Cujacius (Observ.13 c.15).
For Pomponian himself says further on: ‘but if he has not used that
money or has not defaulted.’ This is the specific problem: you and I
entered into a contract of partnership; you then made a profit from
it, and you have defaulted in paying it in, or else you yourself used
that money. Labeo says you must pay interest, for you turned the
profit to your own use, i.e. you wanted to acquire for yourself what
you denied to me; or else, if you defaulted after you were pressed for
payment, you are giving me less than you have given yourself, even
though you give the same to both of us — simply because you are
giving it to me later, i.e. less in terms of time. But the nature of a
partnership allows neither of the two: this is what Livy (bk.8.4)
defines as ‘an equal division of rights’.
34
Book 1
Papinian calls it a fraternitas (D.17.2.63pr.),49 and in Decl. 320
Quintilian50 very aptly says:
The unity, and as it were the fraternity, of minds, is a sacred thing, for it
can create shared opportunities: but indeed when two people have put
together all their possessions, have united all their opportunities, then a
single unity, so to speak, is formed. What can be more just than to have
a composite estate in the form of a single partnership? — for that is what
unity is. So you see that both losses and profits must be shared, and that
there is nothing which is not equally that of both parties.
If, therefore, any profit from a joint venture should accrue to you, it
is appropriate to a partnership, that is a fraternity, that it be partly
rendered to me. If you comply, it is good. If you do not comply but
have used that money yourself, even if you do not in your personal
capacity default in the sense that you have not been pressed for
payment, the very circumstances nevertheless constitute default.
Accordingly, Labeo maintained that you are liable to me with a view
to interest, but not interest proper, but rather to the extent that I
should benefit,51 that is to say, not as if with a view to gain which I
am striving for, and as a result of which it would be judged to be
interest, but as if with a view to the restitution of the benefit you
gained from the use of my money. And this was his view not only in
the case of partnership, but also in the case of all bona fide actions,
since bona fides requires that after the recognition of various forms
of the ownership, no one acquires a profit at the expense of another.
A clear and definite example of that kind is found in the pledge action
(actio pigneratitia) dealt with by Pomponian in D.13.7.6.1.
But what if you did not use that money, but defaulted not ex re
but ex persona, in other words because you did not pay when you
were pressed to pay at a suitable place?
Pomponian says nothing about the creditor in an actio pigneratitia
in D.13.7.6.1, but what shall we say about you who are my partner?
For you have not received any profit, and are not for that reason liable
to me, but you did cause me loss through your tardiness in paying, and
as Seneca says in Epistula 81:
A wise man will compare all things with one another, determining what
he needs more and what he needs less, even although they concur in
respect of time, place and cause.
You shall therefore pay me interest, but, as Labeo and, based on him
Pomponian (D.17.2.60) point out, not as interest proper, but to the
49
50
51
Noodt errs; it is Ulpian.
The Declamations ascribed to Quintilian were actually written by later
rhetoricians who ascribed them to their illustrious predecessor.
See notes 32 and 48.
Chapter V
35
extent that I would have benefited, had you not defaulted.
Nonetheless it is called interest in both its forms, for Labeo was of the
opinion that damages suffered by the partner must be judged in the
manner of interest, considering the benefit of the issues to be
resolved, given the difficulty of assessing his true monetary loss.
You will therefore also in that case pay interest, but not as
interest proper, i.e. not as profit or gain as it were, but as damages,
and finally not yours but mine. That is how partnership works.
But what about all the other bona fide actions? Perhaps you will
say: ‘But not correctly,52 if you were to consider the times of Labeo
and Pomponian in which that approach was accepted in a partnership,
because of the fraternal relationship existing between partners, but
not in the other bona fide actions, although in these, too, interest due
to default was received, having to be paid in the place of produce, in
accordance with judicial discretion.’ (D.22.1.34); but not based on
the argument of Labeo, but on the imperial constitutions which
followed later (as I shall point out i.a. in Bk 3.ch.6).
Meanwhile the argument will prove to be what Pomponian says in
D.17.2.60:
Likewise no such estimate is to be made on account of an act on the part
of an heir after the death of a partner, since a partnership is dissolved at
the death of one of the partners.
For the sense of this is that the right to estimate, by judicial
intervention, the loss arising from default — at least in Labeo's opinion
— falls within an actio pro socio (‘an action on behalf of a partner’),
but not in other bona fide actions. For although one partner is
personally liable to the other for interest, nonetheless after the death
of a partner, no such estimate can be made in view of an act of the
heir if that heir is guilty of default in repayment; in other words, no
interest can be awarded to the [surviving] partner under the guise of
‘that by which he would benefit’, arising from default by an heir.
Now I ask: Why so? The answer is that there is no partnership after
the death of a partner, since a partnership is dissolved by death. And
therefore, if anything is subsequently done by an heir of a partner,
there is no place for an actio pro socio, but there is room for an actio
communi dividundo, because joint ownership still remains even after
the partnership has been dissolved by the death of a partner. Hence
it is terminated not by the actio pro socio but by the actio communi
dividundo (D. 17.2.65.13), which, although it is as equally bona fide
as an actio pro socio (Inst. 4.6.28), nonetheless, since it does not
52
Noodt’s punctuation is unclear: the phrase ‘But not correctly’ must perhaps be in
brackets, with the actual quotation starting at ‘If you were to consider ...’.
36
Book 1
make the same type of estimate on account of the act of an heir, as
the actio pro socio on account of the act of a partner, it appears that
Labeo indeed was of the opinion that interest is paid for default in an
actio pro socio but not in the other bona fide actions.
It is even more clear that the words of Pomponian ‘no such
valuation is to be made on account of an act on the part of an heir
after the death of a partner’ are not to be applied to both the
preceding cases, but only to the latter. And although this may seem
strange, it is what the matter demands, and it often occurs
elsewhere.
I have set out one example of a bona fide action: allow me to add
another which is as clear:
Suppose I have handed over a farm to you on the basis of a contract of
purchase, and have not received the price from you, the reasoning being
that as you enjoy the fruits of the farm, so I will have use of the price,
for this is a consequence of equality of contract, that is, in terms of the
ius gentium. Accordingly, if you do not pay me the price after enjoying
the usufruct of the farm received from me, even though you have not
been pressed for payment by me and so do not default ex persona, the
facts themselves nevertheless imply default, because you are causing
me loss by intercepting the benefit of the price, and therefore it is not
unfair that you pay interest on it, that is that you reimburse the
estimated loss — not an unlimited amount, but according to the interest
on the price (D.19.1.13.20).
And this was what Hermogenianus intended when he wrote the
following (D.18.6.20):
If a buyer defaults in paying the price to the seller, he will pay only
interest, and not absolutely everything which the seller could have
obtained had there been no default, as, for example, if he was a
wholesale merchant and could upon payment of the price expect more
from his merchandise than from the interest.
And the feeling of Paul seems to be no different in D.22.1.17.3. He
says there, in dealing with interest in the case of legacies and
fideicommissa, which is to be paid on the grounds of default,
following the example of bona fide actions, that interest is imposed
not for the sake of the profit of the claimants, but as a result of the
default of those making payment.
I could say as much about all the other actions of strict law, where
a stipulation for interest arising from default is involved. Let us
suppose I have given you money on loan for consumption, and I have
stipulated that it be repaid to me on a certain day; and if it is not
repaid, I have stipulated a certain penalty for each month of the
delay.
Chapter V
37
Now you have not paid me on the appointed day: you are liable to
me for the penalty, for I did not give you the loan for the sake of my
own gain but for the sake of helping you. And if you do indeed repay
it, even though you add nothing, you can discharge your obligation,
even without adding anything to the amount: you had, after all,
enjoyed my favour as I wanted.
But if you do not give it back, you are in the wrong, for you are
using my money against my will, and you have by your too late
payment deprived me of the benefit which I could have enjoyed from
my asset: so when I have done you a favour you repay me with a wrong
instead of with gratitude. It is therefore not unfair that you pay me
the penalty which you promised when I stipulated it, for although it
was only proper for me to do you a favour if I could do so without
inconvenience to myself, it was also not proper that I should against
my will be without my money because of you, and in the meantime
suffer loss or inconvenience. But this is what will happen if you do not
repay the money to me on the day that you had to do so. In
consequence of the stipulation you are therefore, with regard to
yourself liable to me for the penalty (D12.1.40), and with regard to
me, you are liable for the extent of the loss [suffered by me].
And these things are evident also in that specific problem,
because in that, too, there is properly speaking not interest or an
interest-bearing loan, but penalty and reimbursement of a benefit,
and it is called interest because it is limited to the amount of interest
permitted by law.
This is of course so in order that when a debtor is in default there
need not be asked whether or to what extent the creditor would have
benefited if this had not happened, and at the same time in order that
no breach of the law which curbs the avarice of creditors is
committed. (D.22.1.44).
Seneca has this interest in mind in Ep.81 when he says:
Ungrateful people also deceive themselves in this, that besides the
principal, they do indeed pay the creditor an additional amount, but
they think that the use of the benefits is gratuitous. But those benefits
increase as a result of default, and payment must be made in proportion
to the length of the period that it is overdue. Someone who repays a
favour without interest is ungrateful. Therefore this must also be taken
into consideration when what has been received is compared with what
has been paid out.
Chapter VI
The moral and legal justification for the recovery of
interest (continued)
[Summary]
There is no reason why an increase in money which is aimed at profit
should be condemned, and it is properly called usura and foenus. In
the case of foenus a creditor strives after his own advantage without
harm to the debtor, and he is naturally free to do so. Foenus is not
in opposition to human association, but is actually in accordance with
it. Out of a sense of duty we give to nearest relatives things we would
not simply give to those with whom we have no tie of relationship.
The reason for this is that in lending money and fruits, a twofold
agreement is brought about; one which is very close to a favour, and
the other which lies in an exchange of benefits: neither of these is
inconsistent with the ius gentium. An ordinary loan for consumption
is compared with a loan for use, an interest-bearing loan is compared
with letting and hiring.
*
*
*
But what then, if lending at interest [foenus] does indeed take place?
Take this example:
I have given you money on loan. I have stipulated that it be repaid to
me, and at the same time I have stipulated the interest to be owed from
the day of the agreement.
Is interest permitted by the ius gentium?
38
Chapter VI
39
‘Heaven forbid’, you will say ‘that I approve of filthy and
disgraceful profit, for if I should wish to be just, I must be content
with what is mine and not claim something from you which I have not
given you, otherwise I would in a way be scheming to rob you, because
you are in need - you for whom, by the common law of humanity, I
ought to care as much as I care for myself.’
But if you were to make a profit from my money, why would it be
unreasonable for you also to furnish interest from the start? For
nature commits me to the care of myself as much it commits you to
the care of yourself, and just as it allows you to strive after your own
benefit without injustice to me, if you can, so it does not consider it
at all unjust for me to work for my benefit, without injustice to you.
(D.39.3.1.11)
Now this will be the position if you were to use my money subject
to the payment of interest: you certainly manage with that [money of
mine] to make a profit which you would have been unable to make
without it; but if I were to receive interest in exchange for the use of
my money, I would be receiving nothing other than that which
compensates for its use. I will therefore not prove to be unjust if I
were to receive interest, because I am not receiving something which
is yours but something which is mine. For I am receiving the price of
the use [of my money] which I have granted to you. However, if you
have in mind to use my money for your benefit but not to allow me to
receive any advantage in return for its use, you will be unjust,
because you do not allow me the same right that you allow yourself.
This is what the moneylenders urge, and rightly so: although Jerome
finds it reprehensible, saying in his commentary on Ezekiel bk.6 c.18:
Normally their argument is: I gave one measure which was sown, and it
produced ten measures: surely it is only fair that I receive 50 per cent
more from what is mine, since as a result of my generosity that man now
receives nine and a half times from what is mine?
‘But it is reasonable that each one should love and care for another
as much as for himself.’ Excellent! For that is consistent with human
fellowship and the ius gentium. But it does not bind you less to care
for me than it binds me to love you. It furthermore does not extend
to the point where you can rob me of my advantage under that
pretext, or where I can do the same to you. But it does mean that
when you are able to do so, you should be as useful to me as I am to
you. But if you were to want me to be of benefit to you but you deny
me the same favour in return, then you are indeed demanding that
you be loved and cared for by me, but that I not be loved and cared
for by you. Now this is not the hallmark of a good man and one who
earnestly strives for the humanity which he professes, but it is typical
of a bad man, and one who uses that pretext with a view to
wickedness, that is to say to robbery and avarice. So if you should
40
Book 1
need my money because you are weighed down by a temporary lack
of funds, as often happens, then I shall be bound, if I can, to come to
your aid in your need with the use of that money; but not free of
charge if there is nothing else that compels me, but for a price — as
is fitting if you need my services or my home or something similar:
then indeed the principle of human association demands that I help
you, but not that I do it free of charge (if there is nothing else which
directs me), but for payment.
For I am helping you who are able to do this in turn for me, when
I help you for payment just as much as when I assist you free of
charge. And although human fellowship expects that when I can I
should help you when you need my assistance, it does not demand
that I do so free of charge, because it requires that both of us
contribute what we can to the common weal: therefore that I
contribute the use of my principal, and you in turn interest, in other
words the price of the use.
And I realise quite well that there are things that are done for
friends or neighbours or relatives without payment. Indeed I recall
Varro writing in De Lingua Latina bk.4 p.29:
A loan for consumption is what the [Greek] Sicilians call μόιτον. So
Sophron53 writes μόιτον αjνατιθημον and munus — that which those who
have a mutual affection, give out of a sense of duty.54 But when
interest, that is to say profit and payment, are under discussion, it is not
a question of duty but of the ius gentium. But these things that are
bestowed upon neighbours or relatives on the impulse of affection and
where circumstances permit, are an imperative not of the ius gentium
but of a moral duty. For that reason they need not necessarily be made
available to all, even to unknown strangers, or to people to whom you
are not tied by any bonds of blood or of services rendered.
For a moral duty is not required of all persons whom the ius gentium
binds; but it is expected of ‘a son, a wife, and all those persons who
are prompted by blood-relationship and to whom that relationship
commands one to bring help’ (see Seneca De Beneficiis ch.18).
Furthermore we read in Festus that ‘Nearest relatives are, as Gallus
Aelius said, those who are either related by blood or marriage upon
whom before any others the dutiful services of kinship are bestowed.’
But Cornelius Fronto, too, writes: ‘A relationship with teachers or
friends is based on blood bonds or services rendered.’
53
54
This is probably the 5th Cent. B.C. Syracusan author — but not much of his writing
has been preserved.
officium. Gerber defines: ‘a moral duty originating in family relationships or
friendship.’ L & S have (i.a.) ‘a voluntary service, kindness, favor, courtesy
rendered to one whose claim to it is recognised.’
Chapter VI
41
A benefit is more extensive. Listen to what Seneca says (loc. cit.):
‘A benefit is something which a non-relative grants: a non-relative is
one who could avoid involvement without being censured.’ This is also
what Marcianus has to say about gifts in D. 50.16.214. And the council
of Mediomatrix55 (c.56 precariae c.10 q.2) puts it neatly: ‘Where
reason and usage prevail, no one who is not willing can be compelled
to grant a benefit out of that which is his own, contrary to advantage
or reason.’
Indeed a moral duty is compared with an (obligatory) gift: a
benefit is voluntary. The former is something which is owed to certain
persons, while the latter is owed to no-one, although it can be given
to anybody unless a condition of human penury cries out against it.
And as a result of this it happens that although inexpert people find
that unrestrained benevolence which is especially shown by the use of
money laudable, nonetheless it can rather be hoped for than actually
achieved by experienced people. And if such benevolence is put into
practice it would perhaps be considered by the inexpert as a sign of a
great mind, but by the experienced as a sign of a foolish one; but not
of such a nature that they would condemn someone as unfeeling who
makes the use of his money available, at a price, to outsiders.
For how many are there in so great a number of men who would
be willing to do it free of charge, and if they wanted to would indeed
have been able to do so without diminishing their family estate? And
a wise man, one who keeps in mind that his means are modest, must
preserve that family estate, not only with the approval of nature, but
also with her encouragement: for although nature is strongly in favour
of partnership, she is not opposed to care of one's own — at least as
long as that care is not niggardly or excessive. For the truth is that
nature never intended us to strive after fellowship to such an extent
that we may neglect ourselves while caring for the interests of other
people, but so that each one may care more fully and effectively for
himself and his own interests through the mutual exchange of wealth
and possessions. This is what Seneca means in De Beneficiis bk.2 c.15,
when he says:
The height of friendship is to make a friend equal to oneself: both
aspects must be taken into account, viz. ‘I shall give to you when you
are in need, but in such a way that it does not make me needy; I shall
come to your aid when you are about to perish, but in such a way that I
myself do not perish.’
55
56
This is presumably the name of a city of the Mediomatrici — ‘a people of Gaul, on
the Moselle, in the neighbourhood of Metz’ L. & S. I could find no reference to a
Council of Metz.
Decretum Gratiani.
42
Book 1
Let there therefore be a twofold agreement concerning the use of
money and produce, as there is about the use of other things: one
which comes close to benefaction, and another which is removed from
this and rather seeks an interchange of advantages. If one is at liberty
to make use of the first, at the urging of moral duty and affection,
then there is no need of the second; but if you were to be unable to
make use of the first, when there is no tie of relationship, then it is
necessary to arrive at the second.
The first enjoys the commendation of generosity, but the second
is not reprehensible, since it is indicative of acceptable diligence,
which on the example of all other contracts is by the ius gentium
assigned to the common benefit of men. (D.48.22.15).
The comparison of the use of money and products with that of a
building or a farm will make a matter that is already clear and certain
even more certain and more clear. For in the same manner the use of
the latter is granted either free of charge or for payment — and is in
the one case called loan for use and in the other letting (Inst. 3.14.2),
so nothing stands in the way of the use of money or products being
granted either free of charge or for payment. For if it is granted free
of charge it is called a loan for consumption, whereas if it is given for
payment it is called foenus — and it is not for that reason unjust, but
the form changes, and another type of contract is made which is
equally just.
Nonius attends to both, in the following words: ‘A loan for
consumption differs from a foenus in this respect, that a loan for
consumption is taken up without interest, but a foenus is taken up
with interest and it is the natural product of what has been received,
whence it was given the name foenus — as in Greek τόκος, as if it is
the offspring of the loan which has been taken up.’ In his Asinaria
Plautus says ‘For if I am unable to take it as a loan for consumption, I
shall certainly take it as a foenus.’ Hence a loan for consumption is
more honourable since it is done with the affection of a friend, yet it
is quite proper to take it as foenus for its use in time of need.
And so we arrive at the point where a loan for consumption is
established as equivalent to a loan for use, and a foenus as equivalent
to a lease. That is why the jurists of old said that when money is given
and accepted as foenus, it was being ‘let and hired’.
Take Plautus, Mostellaria 3.1:
I have never seen any year more wicked than this one for putting out
silver at foenus. From morn to night I spend the day in the forum, but I
cannot lease a single silver coin to any one.
Or take Horace, Satires 1.2.9: ‘Buying up all the delicacies with
borrowed money’.
Chapter VI
43
Hence in Nonius' commentary on the word occupatus he cites
Pomponius57 Pistoribus where he calls interest ‘rent’. This is the same
sense in which Horace uses the word in Sat.1.2.14: ‘this man slices
five-fold interest-payments from the principal’.58
Also Sat.1.3.[86-8]:
You hate and shun [your errant friend]; like Druso is shunned by the man
who borrowed money from him, who unless he scrapes together interest
or cash from wherever he can when the gloomy Kalends arrive ...59
Persius, too, in Satire 6.67 says: ‘Let the payment of the foenus be
added: from this cover your expenses.’
Therefore, if you consider the ius gentium and indeed the clear
simplicity of the matter, foenus is, as I have said, the equivalent of
lease, or else if you take into account the subtle usage of the Roman
Forum, or the cunning absurdities (as Seneca says in De Benef.6.5) of
the Jurists, it is not lease. But this is not because natural reason
rejects it, but because these people who defined the juristic acts of
civil law in that forum, confined the term ‘lease’ to the use of
corporeal objects, since they had not yet grasped the advantage of
letting and hiring money. After that was discovered, they had to go
not where the simplicity of the matter led them but where the
restricted confines of the law allowed them to go. But just as foenus
is not in civil law lease, so it is also not a loan for consumption. For
just as a loan for use rejects payment, so also does a loan for
consumption.
Where do these arguments lead? They make it clear that a loan for
consumption indeed resembles a loan for use, but a foenus resembles
a lease. And just as we can with every right loan for use or for
consumption to our friends or close relations, that is to say grant
them, if they wish, free of charge, the use of whatever corporeal
object, body or money or produce, so there can be no reasonable
censure if we give money subject to interest to outsiders to whom we
are not bound by any tie of relationship; because although it is not a
loan for consumption, the nature of which does not allow it, it is
nonetheless a foenus; just as when I give the use of my house , not
free of charge but for rental, it is indeed not a loan for use (because
the nature of the contract does not allow it) but a letting and hiring
57
58
59
See notes 28 and 29.
i.e. Futidius charged 60% instead of 12%, taking it in advance so that the borrower
received only 40% of the loan.
The quotation omits the apodosis of the conditional sentence, in which it
becomes clear that the usurer Druso would force a defaulting debtor to listen to
his mediocre literary efforts as punishment. (The Kalends are the first day of the
month — pay-day.)
44
Book 1
(Inst. 3.14.2); and when I undertake to conclude a friend's transaction
free of charge out of a moral duty of friendship, it is a mandate.
But if payment is involved it is definitely not a mandate (since
payment conflicts with moral duty), but the matter goes over to
another form of transaction which is usually called letting and hiring
(Inst. 3.26.13; D.17.1.1.4).
And since this is approved of by every legal system, what reason
is there for foenus to be disapproved of by either civil law or the ius
gentium? Or why must I concede to an outsider to whom I am not
bound by any tie of blood or of services rendered, the gratuitous use
of my money rather than of my labour or my land or my house or
whatever other corporeal object which is no more necessary to me
than my money?
Chapter VII
Loans at interest and letting and hiring distinguishable?
The arguments of Chrysostomus
[Summary]
Chrysostomus advances three arguments for distinguishing between
foenus and letting, arguments which Franciscus Hotman60 called
‘most weighty and learned’. But they do not appear to be quite valid.
*
*
*
Now the argument in the previous chapter is acceptable unless one
agrees with the reasoning of Chrysostomus (or some other author)
regarding the difference between an interest-bearing loan and letting
in the commentary on Matthew 21, homily 38, tome 1 of the Opera of
Chrysostomus, p. 907 of the Paris edition, C. Morell 1636. This is what
he wrote:
Now someone argues that he who leases land in order to receive a share
of the harvest, or a house in order to receive rental, is surely not similar
to someone who gives money at interest? Heaven forbid! Firstly such a
man is not similar to a moneylender because money is not assigned to
some or other use, as land or a house are, but to the price of buying or
selling. Secondly because he who owns land, ploughs it and receives
produce from it, and likewise he who owns a house enjoys the use of a
dwelling: accordingly he who leases land or a house seems to provide the
60
Noodt spells the name Hotmanus, but the Latin form is usually Hotomannus.
Generally known as Francois Hotman (1524-1590).
45
46
Book 1
use thereof and to receive money in return, and in a certain manner to
interchange, so to speak, profit for profit. But if you keep money put
away in your purse, you enjoy no use from it. Thirdly, farmland or a
house ages through use, whereas money does not age when it is lent.
So Chrysostomus, and according to the excellent Franciscus Hotman
he wrote ‘splendidly and almost divinely inspired’. This is what
Hotman really says! And he calls the reasons offered by Chrysostomus
‘most weighty and learned’.
But I am determined to set aside for the time being the authority
of [Hotman's] prejudice, and to look at the matter itself, as is fitting
when one seeks the truth:
Firstly: Chrysostomus denies that money is possessed with a view
to some use other than as a price in buying and selling: where does
this bring us? Now coins were indeed originally invented in order that
their public and permanent valuation could, through the consistency
of their worth, relieve the problems of bartering; but could they for
that reason not allow another use? Nevertheless, Aristotle also held
the same view as Chrysostomus (de Rep. I.10). So what if it was a view
foolishly held? For how often does it not happen that a thing which
was invented for one purpose later allows of another even better one?
For most things were invented not by reason but by necessity, which
sought not what was the best but what was essential — then usage and
the passage of time perfected those things which had initially been
raw and meagre. And there was no reason why a next generation
should refuse to accept any advantage manifested by new circumstances, even if it had not been noticed by their predecessors. For
whatever those people realised was useful to them, they applied to
use in their lives, not because it was not necessary that there should
be something else but because they did not have anything else and
would also have used it if they had perceived it. And so when that new
use was found, it would be foolish not to follow something which one
noticed was useful and good for you, even though nature took the
lead, simply because it was new and disapproved of by the men of old.
Seneca puts it very neatly when he says (Ep.95[par.14]): ‘As you say,
that wisdom of old was without doubt unrefined at its very beginning,
no less so than other arts which became more refined as they
advanced.’
But this frequently happens in law. Take the actio negotiorum
gestorum as an example: the reason for introducing it was so that
friends of absent persons who had been forced to set out for a foreign
country in great haste, without first having asked someone to manage
their affairs, could be requested to undertake that management of
their own accord. (Inst. 3.27.1; D.3.3.1 ff.).
Chapter VII
47
But now if some persons can be urged, as a result of some urgent
necessity or on the assumption of necessity, to take the management
of another’s affairs upon themselves and the affairs are subsequently
through their offices managed advantageously, then the position
begins to change so that an actio negotiorum gestorum is made
available to them personally just as if they had acted of their own
accord. (D.3.5.3.10; D.3.5.18[19].2).
What Varro writes in this regard is very relevant (De Lingua Latina
bk.7 p.65): ‘Seek the advantage, not the semblance of advantage, in
whatever things are taken on account of their use with a view to life.’
Likewise: ‘Let us for the sake of advantage seek differences rather
than similarities in these things’.
To the example of the negotium gestum we may add the example of
the aqueduct. The original purpose of an aqueduct was the irrigation
of cultivated fields, yet we now acknowledge the right that water can
also be conducted not only to irrigate but also for the sake of herds,
or simply for pleasure. (D.43.20.3; ibid. 1.11).
What shall I say about the right of possession of property contrary
to the terms of a will? This right was introduced by the praetor in
favour of children who had been released from paternal power, if the
father had passed any of them over in his will. The right was however
extended to heirs under paternal power,61 if it was to their
advantage. (C.6.28.4).
Now clothes were invented to cover us, not to adorn us; houses
originated in order to provide protection, not enjoyment. Yet Varro
says (op.cit.p.65):
We do not want to be clothed solely to keep out the cold, but also so
that we may be seen to be clothed respectably; we do not want a house
only so that we can be under a roof and be protected, but also so that
we may have a place to enjoy ourselves.
But let us skip the enjoyment: who would say that clothing was
invented in order to provide revenue? Yet clothes can be let, and
payment — produce, as it were — be received from that. (D.22.1.19;
Inst.3.24.5). And neither were houses invented that they be leased,
and yet, if an owner does not need his house why should he not lease
that which he can do without?
Farms, too, were acquired to be sown or to serve as pasture, not
to be leased; but what if the owner is unwilling or unable to sow or to
use land as pasture? Will he transgress if he leases it to others and
61
Assuming that suos here implies heredes: a heres suus is an heir who at the death
of a person was under his paternal power, and became sui iuris at the death of his
father.
48
Book 1
receives rental instead of produce? But this happens every day, and
nobody objects. Indeed, wheat, fruit, hay and such like harvested
from the farm-land are called ‘natural fruit’, yet while rentals from
leased farms are not by nature fruits, they are in civil law regarded as
fruits. (D.6.1.62; D.5.3.29).
Why should we judge differently in the case of money? Agreed,
money was not invented with a view to use, but to be the price of
something bought and sold — must it therefore not be employed for
use, if there can be such a use? On the contrary, I agree with the reply
of Papinian (D.6.1.62), namely that interest does not fall to us by
nature but is received by law, although I also cannot see why money,
which we concede was invented for the valuation of things to be
bought and sold, should not be employed for use. Or is something
which I may put to my use myself, namely to buy and sell, lease and
hire, in short to make profit, not acquired with a view to use? Is it not
something which I myself, should I not wish to trade, may give to a
partner to trade with and to give me part of the profit?
But if money does have a use, since it involves the price of things
to be bought, then my question is: if I allow this use to another by
loaning the money, is it unfair that I be granted the interest, in other
words that I take the estimated value of the use in exchange? For in
any case I would then merely be exchanging profit for profit, and I
would not receive more than I have given.
But the matter is settled and even Aristotle says (De Republica
bk.1, c.9, p.409):
For any single thing that is acquired and possessed there is a twofold
use: each use is a use by itself, but the two uses are not so in a similar
fashion: the one is suited and appropriate to the thing itself, whereas
the other is foreign and not appropriate to it. For example, wearing a
shoe and bartering a shoe: one can use a shoe in both ways, for even he
who barters a shoe for money or food from someone who needs a shoe,
is indeed using that shoe for the reason that it is a shoe, but this is not
its proper use, since a shoe was not made for the sake of bartering. And
the same applies to other things that are acquired and possessed.
But it will be said (following Chrysostomus' line of argument) that if
you keep money stored up in your purse, you derive no use from it. I
understand. But likewise if I do not live in my house myself and also
do not lease it to other people, then that house will also not yield a
return; and if I neither plow my farmland myself nor lease it to other
people, the land will be useless. Yet you will not be so foolish as to
say that either house or the land is of no use to you with a view to
acquiring a return, for it will be unprofitable for you not through its
own fault but through yours. A parallel is the money which you allow
to lie inactive, while if you were to invest it in an interest-bearing
loan it would through your diligence not be unprofitable (D.27.4.3.4;
Chapter VII
49
D.22.1.7). On the contrary, Ulpian says (D.17.1.10.3) that the money
is utilised, and is possessed with a view to gain; a parallel being a ship
or a tavern which are said to be utilised when they are possessed with
a view to returning a profit. (D.4.9.1.2 & 5). Therefore just as there
is lawful lease of farmland or of a house or of a ship, so too of money,
because in the case of the latter just as much as of the former, profit
is exchanged for profit, that is, use is exchanged for payment
(C.4.32.14).
The final argument of Chrysostomus is that farmland or a house
grows old through use, whereas when money is exchanged62 it neither
diminishes nor does it grow old. But in the first place, what he says
about farm-land, namely that it grows old, is not true — at least, if it
is cultivated well, as was shown neatly and extensively by Columella
(De re rustica bk.I, preface). Secondly regarding his reference to a
house, although I would not deny it (for the embellishments of cities
and marble ornaments feel the ravages of time [C. Th. de operibus
publicis, 15.1.16] and crack open when overcome by decay [C. Th.
15.1.15]) it is however irrelevant to the issue. For a house grows old
whether it is inhabited or stands vacant, and more so when vacant
than when inhabited: this is well-known, and Ovid touches on it in
Amores bk.1.8.[v.52]: ‘Abandoned houses become mouldy with the
filth of neglect.’ Finally, following Pomponian, Marcianus observes
that payment is made not in accordance with the deterioration of a
house but in accordance with its use (D.20.2.2). And the leasing of
farmland proves the same point, for as I have said above, if it is
cultivated well it does not grow old or deteriorate.
62
The reading here is mutata, but in the initial quotation from Chrysostomus it is
mutuata ‘loaned’.
Chapter VIII
Loans at interest and letting and hiring distinguishable?
(continued); the entitlement to interest in cases of
unauthorised management, mandate and partnership - the
correlation between profit and risk
[Summary]
In addition to the arguments of Chrysostomus there are three others
with which distinguished scholars think foenus can be separated from
locatio. But these arguments are groundless. The comment by
Pomponian in D.13.6.13.1 is explained, and also that of Ulpian in
D.17.1.10.8 & 3 and of Paul in D.17.2.67.1.
*
*
*
I have now replied to the three arguments with which Chrysostomus
distinguishes between foenus and letting and hiring. Now follow other
arguments not put forward by Chrysostomus, but since they are
equally or more problematic even to very learned men, I shall take
care that those who strive after the truth will not find me remiss in
my diligence.
The first argument is that in the case of foenus ownership is
transferred, whereas in lease it is retained. It is therefore reasonable
to approve of leasing and to disapprove of foenus, because in leasing
the return is received from one's own thing, while in foenus it is
received from another’s thing. But the simplicity of the ius gentium
does not accept this excessive subtlety which is entirely typical of
50
Chapter VIII
51
civil law, because the ius gentium allows fungibles63 as well as a
corporeal object to be leased, although civil law does not accept the
leasing of fungibles, as I said earlier. And that is not all: the ius
gentium even allows the ownership of leased fungibles to be
transferred, and that it be paid back not in specie but in genere,
although in the case of a leased corporeal object it does not deem it
necessary that ownership be transferred, and rules that the object be
given back not in genere but in specie, since in the one case the use
can be exercised in a different manner but in the other it cannot.
Moreover, if the lessor of the object receives payment for its use even
though he does not transfer ownership, why should the lessor of
fungibles not receive payment for its use, when ownership has been
transferred? For it is certainly true that he leased the fungibles and
transferred the ownership thereof not permanently, and not with the
intention that he should not possess it himself, but temporarily and
with the intention that the receiver could in the meantime have the
use which otherwise he could not have in the case of a thing that is
consumed by use.
The result of this is that in the case of foenus the transfer of
ownership does not mean that the creditor receives remuneration in
a lesser degree but on an equal basis, since he gives ownership to the
debtor with a view to use, and in the place of the ownership retains
the right to claim back the thing loaned, in the same kind. Finally, he
receives the fruits not by another person's lawful right but by his own.
A second argument is that a lessor must see to it that the lessee
is free to use and enjoy [the leased thing] (D.19.2.15.1), and if it
should by chance happen that he does not see to it, the lessee is not
bound to make the promised payment (D.19.2.15.2 and 19.2.33). But
the contrary applies in the case of foenus, for the debtor is obliged to
make the promised payment, whether he has had the use of the
money, or whether a fortuitous event has hindered it. Therefore
foenus is unfair, while letting and hiring is not unfair.
But although this objection at first blush seems to present a
problem, it is without substance if it is more carefully examined. The
reason is that the lease of a corporeal object is not for any use
whatever but is for a specific use, and if the lessee were not to have
that use owing to a fortuitous occurrence, it is indeed not something
for which the lessor or the lessee can be held responsible: the ruling
is therefore that the fortuitous occurrence prejudices not the lessee
but the lessor, either because this is a consequence of ownership or
else because it appears to have been so agreed tacitly. The same does
not apply in the case of foenus, since there money is loaned to the
63
quantitas in a legal context can be rendered ‘sum of money’ or (as here)
‘fungibles’.
52
Book 1
debtor not for a specific use but for any use whatever, because it is
given in such a way that ownership is transferred to him: therefore
the debtor does not promise the creditor to use the money in this or
that manner, nor does he need the creditor's advice regarding its use,
but he decides by himself and according to his own judgment with
what plan he ought to use the money and make a profit from it. And
if a very great profit, higher than expected, falls to his lot he does not
therefore pay a higher interest than that which was initially agreed
upon. So if on the other hand loss is suffered this must fall to the
prejudice of the debtor, not the creditor. This is so either because it
was so negotiated, or else in view of the nature of ownership, and
certainly because it would be unfair that the risk belong to the
creditor while the debtor does not consult him on the manner of
trading with the money or spending it, but decides this according to
his own judgment. By the same reasoning in the case of a negotiorum
gestor it was held that if he did something that the owner would
usually not have done the risk thereof would fall not to the owner but
to himself. (D.3.5.10[11])
The third argument is that a thing must bring gain to him at whose
risk it is, according to Pomponian (D.13.6.13.1), Ulpian (D.17.1.10.8)
and Paul (D.17.2.67.1). But money which is loaned is not at the risk of
the creditor, as in leasing in which the lessee returns the same thing
that he received provided that it still exists; and if it has been
destroyed through a fortuitous event he is not bound to return it: but
money [loaned] is at the risk of the debtor, for he is bound to return
not the same coins that he received, but the same kind of coins, even
though the coins that he received might have been lost as a result of
a fortuitous event (C.4.2.11). Therefore the gain must fall not to the
creditor but to the debtor.
But the lease of a corporeal object is in the first place given for a
particular use, and indeed a use that can be made while preserving
the original substance: but the lessee must not go beyond this use
without the consent of the lessor. If the lessee therefore accepts that
use in accordance with the wish of the lessor and the thing is lost due
to a fortuitous event, no blame can be attached to the lessee, who
did not take any risk of the object upon himself, and used it in
accordance with the wish of the owner. By virtue of the nature of
ownership the loss of the object falls to the lessor, that is the owner.
On the other hand, the loaning of money to a debtor is for any use
whatever, that is to say, certainly not for the use which the creditor
decides on but which the debtor decides on. Also, the loan is made
with the intention not that the substance64 be preserved but that it
be consumed by use when it pleases the debtor.Therefore if it is lost,
64
i.e.the original coins loaned.
Chapter VIII
53
even if by accident, the loss falls not to the creditor who did not take
the risk upon himself and did not decide on how it was to be spent,
but to the debtor, that is to say owner, who uses it at his own time
and in accordance with his own judgment.
But if you trust Pomponian (D.13.6.13.1) and Ulpian (D.17.1.10.8)
and Paul (D.17.2.67 par.1), gain must belong to him whose risk it is.
This is so, but not everywhere but in the specific cases they deal with.
It will be to the point to have a look at them one by one, because
they are subtle and not sufficiently explained. I shall give Pomponian
the first turn. His words are (loc.cit.13.1):
If someone who has received something to be tested has made a certain
profit, for instance if draught-animals were leased, then the same
person who has given them to be tested will pay that [rental] itself; for
that thing may not serve as profit for anyone, before it is held at his risk.
That is the reading of the Florentine manuscript; in other editions it
reads ‘he will pay that [rental] itself to the one who gave them to be
tested’,65 which is more correct.
Pomponian gives as an example someone who intends buying
draught animals and has received them to be tested and then leases
them to another person for a fixed rental. The question is to whose
profit does that rental fall? Pomponian says that it ought to fall to the
profit not of the one who received the animals to be tested, but of
the one who gave them, and he adds the following reason for his view:
‘... and that thing may not serve as profit for anyone before it is held
at his risk.’ That is to say, in buying and selling the price may not be
to anyone's profit before the buying and selling have been completed.
For from that time on it is at the risk and to the benefit of the buyer.
I ask: why so? Because although the animals were handed over
beforehand, they were not, however, handed over with a view to
gain, as if they had already been bought, but in order that they be
tested, in other words (as Ulpian says in D.19.5.20) in order that [the
potential buyer] be given a testing of the animals free of charge and
might then, having availed him of the opportunity, weigh the
possibility of buying. If, therefore, he then put the animals to the test
and in so doing gained something, he must give back what he gained,
because the deal was made that he should have them on loan for use,
not that he should make profit from them.
So it is, if buying and selling have not been completed, and the
risk is not yet that of the buyer. For if they have indeed been
completed, and the thing is at his risk, and he enjoys the fruits of it,
65
id ipsum praestabit ei qui experiundum dedit — i.e. ei is added.
54
Book 1
but he has not yet paid the price of the thing, then he is liable for
interest (D.19.1.1.19). So Pomponian correctly says in D.13.6.13.1
that gain belongs to him who bears the risk, if the nature of the
transaction allows it.
But this must not be extended to other kinds [of juristic acts]
which are based on a different principle. For if a woman has given a
dowry to her husband, that husband enjoys the fruit of the dotal gift,
for that is the purpose of giving the dowry. And yet the dowry remains
at the risk not of the husband but of the wife, and it is enough that
the husband be liable for fraud or both gross and light negligence
(D.23.3.10.17; D.50.17.23). This is so in the case of corporeal objects
given as dowry. What if it is a sum of money? Hear what Gaius says
(D.23.3.42):
Things given as a dowry which can be weighed, counted or measured,
are held at the risk of the husband, because they are given with the
intent that the husband dispose of them at his discretion, and that if at
some time the marriage is dissolved, he himself or his heir will restore
others of the same kind and quality.
And regarding the management of another's affairs Pomponian himself
(the author of D.13.6.13.1) points out that benefit, which is the
measure of equitable human conduct, sometimes demands that the
risk falls to one person and the profit to another. In D.3.5.10[11] he
writes:
If you manage the affairs of someone in his absence and without his
knowledge, you must be liable for both negligence and fraud. But
Proculus holds that there must sometimes be liability even for a
fortuitous event, for example when you should negotiate a new
transaction, in his name, which the absent person was not accustomed
to do, for instance by buying up young slaves offered for sale, or by
entering upon some or other commercial business. For if any loss results
from that matter, it falls to you; but profit falls to the absent [owner].
So much for Pomponian. Now follows the argument of Ulpian
(D.17.1.10.8):
If I charge my representative to give my money as a loan to Titius free of
interest, and he does not lend it free of interest, let us see whether he
must deliver up the interest to me. And Labeo writes that he ought to
deliver up, even though I charged him to give the money gratuitously,
although if he loaned it at his own risk, the action on mandate — so says
Labeo — would not be applicable to claim interest.
So Sejus charged his representative to give his money in loan to Titius
free of interest, but the representative has loaned it at interest. The
question is raised whether he must deliver up any interest he may
have received. This is what Ulpian says, following Labeo, and he is
correct, for although the agent had been charged to give the money
Chapter VIII
55
gratuitously he nonetheless loaned it at interest and received this
interest, not from his own but from another's money, and good faith
does not allow that when ownership is divided between men, he may
make profit from the money of another against the wishes of that
owner. He must therefore return whatever emolument he received to
the person with whose money he made it — which is not only what
reason demands but also Ulpian (loc.cit. 10.3), as furthermore Paul
(loc.cit. 20) and Gaius (D.3.3.46.4). This is especially so if the
representative did not loan that money at his own risk.
And what then if this is the case? For it does not cease being
another person's money simply because the representative employed
it at his own risk, does it? So must the agent even in that case deliver
up to the owner whatever money he received by way of interest?
There is no need for discussion. Ulpian (loc.cit.10.8) settles the
matter when he says that if my representative gave my money at
interest and obtained interest, he must deliver whatever profit he has
gained, and it is beside the point whether I so charged him or not. But
what does this mean other than that a representative is bound to
deliver up the interest whether the risk does or does not fall to him?
Because if he loans the owner's money at interest without his
mandate, it is certain that he loans it at his own risk and not at the
owner's (D.6.1.62). Yet Ulpian opposes this with the words
(loc.cit.10.8) ‘although if he loaned it at his own risk, the action on
mandate regarding interest — so says Labeo — would not be
applicable.’ But he must not be understood to be saying that the
representative retains the interest on that money of the owner the
moment when he has loaned it at his own risk, but rather that when
the money of the owner has been put out on loan at the risk of the
representative, the action on mandate is not applicable regarding
interest, according to the pronouncement of Labeo; if the owner
ordered his representative to take a certain amount of money and put
it out on interest at his own risk, either simply, or in such a way that
he at least pays certain interest to the owner, and if he could loan it
at higher interest, he himself would profit. For so it used to be agreed
at some time, as the same Ulpian points out (loc.cit. 6.6).
And it would not be unfair that the representative enjoy the
benefit of the money when the owner allows this, and even orders
that the risk must lie with the representative.
But Scaevola also raises the matter in D.26.7.47.4. He relates:
A commander of a legion made the following provision in his will:
56
Book 1
It is my wish that it should be at the discretion of my son's guardians if
they so wish to place one twelfth66 of this amount out at interest, in
such a way that the money is not squandered.’ And the question arose
whether, if the money put out at interest by the guardians should come
to light through an action of guardianship, they must be liable for
interest of one percent per annum, or indeed for the interest which they
stipulated. I67 [i.e. Scaevola] replied that if they had chosen the liability
for interest in accordance with the wish of the deceased and had not
placed the money at interest in the name of the ward, they must deliver
that which the testator had wished.
It now remains for us to analyse what Paul says in D.17.2.67.1.
If one of the partners who were not universal partners, puts out jointlyowned money at interest and receives interest, he must eventually share
the interest if he has loaned it in the name of the partnership: for if he
has done so in his own name he ought to keep the interest for himself,
since the risk of the principal lay with him.
The example given here is of money jointly owned, which has been
loaned at interest by one of a number of partners. The question arises
whether he must share the interest received from that money with
the other partners. Paul makes the distinction whether they were
universal partners or not, and he reckons that in the first instance, the
interest ought to be jointly owned, whether he loaned that money in
his own name or in that of the partnership, since he can hardly have
the money as his own alone if a universal partnership was contracted:
but he can also not alienate jointly owned things to the full amount
without the consent of all the other partners (on the authority of
Nicaeus, Basilic.lib.23.tit.1.tom.3 pag. 272 ff and D.12.1.16).
This is the position if they were universal partners: but what if
they were not? Paul says that if indeed the partner loaned at interest
money jointly owned in the name of the universal partnership, he
must share the interest, but if he loaned the money in his own name,
he ought to keep the interest for himself; and the reason which he
adduces for this is that the risk of the principal lay with him.That is
indeed what this means. But if someone is not a universal partner, and
he has loaned money which is jointly owned with the consent of the
other partners (for otherwise he cannot do it, for he has the right to
alienate only his own part, [D.12.1.16]) he is bound to share the
received interest with his partners, since it is their [jointly owned]
money; what is more, it was loaned with their consent and at their
[joint] risk.
But if he has given in loan his share of the jointly-owned money
(Paul, D.12.1.16, calls it ‘propria pecunia’) which he can certainly
66
67
uncia = 1/12% per month, i.e.1% p.a.
respondit should read respondi.
Chapter VIII
57
lend out even if his partners do not consent, as the same Paul says
(loc.cit.), then it is the more so that he can keep the interest for
himself, since the risk of the principal lies with him. And yet, if he
turns the jointly-owned money to his own use, he must be liable for
delivering the interest (D.17.2.60).
But the Greeks already noted (Basilica lib.12, tit 1, vol. 2, p.38,
in explanation of D.17.2.67.1) that to put jointly-owned money out at
interest is not the same as turning it to your exclusive use, and
Cujacius also agreed with that (Observ.bk.23,c.27).
Chapter IX
Consideration of Seneca’s aversion towards moneylending
at interest
[Summary]
Seneca's opposition to interest-bearing loans is considered and
discussed.
*
*
*
But to return now to the point from which I digressed: it is clear that
neither Nature nor the ius gentium is opposed to interest-bearing
loans and interest. On the other hand I am not unaware that Seneca
writes as follows in De Beneficiis bk.7.10:68
I see there documents, promissory notes, guarantees — all empty
symbols of possessing, the shades as it were of avarice in labour — by
means of which they deceive a mind which rejoices in believing in
inanities. For what are those things actually? What is an interest-bearing
loan, what is an interest-book of a moneylender, what is interest — other
than terms for human cupidity sought beyond the bounds of nature? I can
indeed complain against the laws of nature for not hiding gold and silver
more deeply, for not giving them a weight too heavy to be extracted.
What is the meaning of all those account-books, words, ‘time for sale’
and blood-stained ‘12% per annum’? They are merely voluntary evils
deriving from our system, in which there is nothing that can be
68
This is a repetition of the passage on p.27 above.
58
Chapter IX
59
scrutinised by our eyes, that can be held in our hands — mere dreams of
empty avarice.
In the first place Seneca says that ‘foenus is a term for human cupidity
sought beyond the bounds of nature.’ Quite so, for as Aristotle says in
De Republica 1 c.10, in the case of foenus we have money which is the
‘offspring’ of money. Yet it is not for that reason to be disregarded,
for although nature did not invent foenus, it nonetheless also did not
forbid it. Why should it therefore not be accepted for human use — if
it has any use — without nature opposing it? Unless we also disapprove
of slavery for the reason that nature does not know it since men were
originally born free. And yet the ius gentium approves of slavery
which was a man-made institution in conflict with nature. (D.1.5.4.1;
D.1.1.4). Ownership of things was also not devised by nature, but was
introduced, contrary to nature's common ownership, by human
covenant. Yet, persuaded by its advantages, the ius gentium
preserves ownership as distinguished by men (D.1.1.5). As Varro says:
‘Divine Nature gave us farm-lands, human ingenuity built cities’ (De
Re Rustica bk.3), yet no-one censures cities, since the ius gentium
created them while they are unknown to nature (loc.cit. 5).
Actually, Juvenal appropriately writes (Sat. 15. 149 ff) that God
gave
... us the disposition that mutual affection
commands us to seek and offer assistance
to draw scattered individuals into a people, to migrate
from their ancient forest-dwellings and to leave behind
the woods in which their ancestors dwelt;
to build houses, to join another dwelling to our home
so that our combined reliance might give us dreams without care
thanks to a shared boundary;
to protect with our weapons a fellow-citizen who has fallen
or who is staggering under a huge wound;
to give signals on a communal trumpet, be defended by the same
towers,
and to be kept in by a single key of the city's gates.
Now think of interest-bearing loans and interest in the same terms.
Nature does not recognise them. That is so, but neither has it
forbidden them. On the contrary, the principal introduced by
agreements between men is not rejected by the ius gentium
(D.48.22.15), no more than commercial dealings and obligations,
which, with a few exceptions, were introduced by the ius gentium, as
Hermogianus69 mentions (D.48.22.15). It is in this sense that
Pomponian (D.50.16.121) says that the interest which we receive on
money does not consist of fruits, because it is not derived from an
69
More probably Marcianus.
60
Book 1
object itself, but from another source, namely a new obligation.
Papinian, too, writes (D.6.1.62) that interest does not come by nature
but is received by law.
But (says Seneca) lending at interest is ‘time for sale’, a
‘voluntary evil deriving from our system, in which there is nothing
that can be scrutinised by our eyes, that can be held in our hands — a
mere dream of empty avarice’. It is in fact received in return for the
use of something that does not exist, because it is received in return
for the use of money which has been spent.
And not only Seneca criticises this, but also Plutarch in De vitando
aere alieno70 in these words:
And those people mock the natural philosophers who say that nothing
can emerge from that which does not exist, for among themselves
interest comes into existence from that what is not and does not subsist.
But this is typical of both excessive and fatuous casuistry, for although
I would not deny that in a loan for consumption the specific thing is
consumed, who does not know that the debtor is liable for the same
kind, and that when that is paid the same kind is given back? Indeed,
the fact is that the very nature of things given in loan is such that they
are assessed not according to their form but to their quantity, and
that they derive their function not from their specific form but from
their kind, because it is of no concern to the owner whether he has
the same thing, or one just as large.
But if it is indeed so that if the kind is preserved the principal also
appears to be preserved, why then should interest not be owed in
return for the use of the principal, just as rental is owed in return for
the use of a leased and still preserved object? And this is the reasoning
in the case of the creditor, but what shall we say of the debtor? We
shall say that for him, too, the money which is consumed in using it is
not lost, for although the physical object of the money is not
preserved, yet its usefulness is preserved — whether he buys a farm
from which he can receive a crop, or pays his debts and redeems his
property, or does something else which he considers to be suitable for
whatever business of his (D.31.70 ult, & 71 & 72). When he then has
this benefit from the money of another person, he rightly pays
interest in return for the use of that money.
But interest of 12 per cent p.a. is ‘blood-stained’, [says Seneca].
Who would deny it, if the creditor were to exceed the benefit which
he would be deprived of because of the fact that the debtor would use
his money? But what if that should not be the case? It would not be
cruel of him to get back the advantage which he has granted the
70
‘On avoiding debt’.
Chapter IX
61
debtor, at 12 per cent. What if I were to add the fact that the interest
need not necessarily be 12 per cent, i.e. the maximum rate? For it
could be 6 per cent and 5 per cent and 4 per cent and 2 per cent and
1 per cent (the very lowest).
Indeed, Seneca himself (De Ira 3.33) recalls interest of hardly one
thousandth per month,71 and provided it be appropriate and within
bounds, perhaps the principle of interest was not unacceptable even
to him. He certainly says of himself (if we can trust Tacitus Annals
14.53) in a speech to Nero which begins72 with the words: ‘He abounds
in such large spaces of farm-lands, in such wide-spread
moneylending’.
So Seneca attacks the vice not of interest but of the manner [in
which it is exacted.] And this occurs not alone in the case of
moneylending but in other things too, viz. that things are considered
either useful or harmful in their application. Similarly, as Pliny warns
in Naturalis Historia 14.4, nothing is more beneficial for bodily
strength than wine if used in moderation, and nothing more ruinous
for enjoyment if used immoderately. Likewise the weaponry of
eloquence is powerful either for good or for evil, yet it is unjust that
something that may be used well should be considered bad: Quintilian
remarks on this in Inst.Orat.2.16, when he says73 that otherwise
‘neither generals would be of use, nor magistrates, nor medicine nor
even philosophy itself. For Flaminius was a general, while people such
as the Gracchi, Saturninus and Glaucia were magistrates, and among
the doctors there are those who use poison and there are even those
who in the guise of philosophers have at times been involved in most
disgraceful acts. Let us reject food, since it has often been the cause
of sickness. Let us never enter under the roof of a house, since it
sometimes collapses on the occupants. Let no sword be forged for a
warrior, since a robber can use that same sword. Who is unaware of
the fact that fire and water — without which there would be no life —
and, to leave out mere terrestrial things, also the sun and the moon,
the most eminent heavenly bodies, also at times do harm?’
But what Quintilian says in the case of all these things is what we
may say in the case of interest-bearing loans: if it does harm, if it is
disgraceful, if it is unworthy of a good man and one who loves
mankind, then it is not the fault of moneylending itself, but of a
greedy person and one who uses it wrongfully. Now if someone wants
to forbid it because it is sometimes abused, then he may do so
provided that he also forbids fire, water, wine, food et cetera —
71
72
73
usurae millesimae.
It is at the end of the speech. Furneaux renders lato faenore ‘capital out at
interest far and wide’.
What follows in (my) quotation marks is a verbatim version of Quintilian 2.16.5 6.
62
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things not only useful but also essential to men — for the simple
reason that they may at times be put to use, but not their true use,
in a word for the reason that many people abuse them for wicked
ends. But such a person should consider that in these things it is not
the use that must be abolished, but the abuse; he should also say that
in the case of moneylending and interest it is the corruption that is to
be restrained, not its true use which is adapted to the assistance of
humankind.
‘That argument is for fools’, you will say. ‘For this is the whole
rationale of interest, that even if it is not immoderate, it nonetheless
gradually erodes the resources of a debtor, especially one who is
careless or wasteful. In short, the result is that when that debtor is
seeking a medicine, he receives not a medicine but poison.’
Ambrose argues along similar lines (De Tobia c.3) and therefore
exclaims in chapter 5:
It immerses those that are already shipwrecked, it spits them out naked,
strips them of their clothes, leaves them unburied. So you ask for money
and are subjected to shipwreck. On this side Charybdis74 surrounds him
with noise, on the other side the Sirens, who with the promise of
pleasure and the sweetness of melodious song tempted them into dark
shoals, and eventually cheated them (so the story goes) of all hope and
desire to return home.
But the thing Ambrose carps at is not to be blamed on moneylending,
but on the debtor — whether careless or worthless and wasteful — the
same type that he describes in the chapters following on this.
74
Charybdis was the legendary whirlpool opposite Scylla in the Straits of Messina.
Chapter X
Loans at interest with specific reference to Mosaic Law
[Summary]
It is not the ius gentium but the civil law imposed on the Hebrew
nation, which defines Mosaic Law regarding the prohibited practice
of lending money at interest. By that law interest-bearing loans are
indeed forbidden among Hebrews, but not between Hebrews and
foreigners. And in Rome a similar rule was observed among Roman
citizens, and likewise between them and their Latin allies. The
reason why interest-bearing loans between Hebrews are forbidden by
Mosaic Law, while between Hebrews and foreigners they are not
forbidden, is carefully but not convincingly discussed by Ambrose.
The true reason is to be sought in the purpose and the expediency of
the Hebrew state to whom this law was given. That was a new state,
finding itself in straitened circumstances. It was not concerned about
trade but rather about war and rural matters; and it was necessary
that it should not be divided domestically by zeal for moneylending
or profit, while abroad it did not require the ius gentium, being in a
forsaken and barren place. Under the appellation ‘foreigners’ Moses
understood not only the accursed Gentiles but any other nation
whatsoever, nor did he regardlessly impose public enmity on the
latter, although he did so in the former. Did God at times allow the
Hebrews to commit shameful and profligate acts? It does not seem so,
nor was theft committed at God's command by the carrying away
from the Egyptians of gold and silver ornaments, and of precious
clothes. An excellent passage from Tertullianus is quoted in
explanation. How one must understand what we read in Deuteronomy
29 v. 5 and 8 v.4 about the sandals and clothes of the Hebrews in the
63
64
Book 1
desert not becoming old and worn. A parallel pronouncement of
Justin is quoted, and the opinion of Salvianus and others is censured.
The interpretation of the meaning of Psalm 15 v.5 and Ezekiel 18 v.7,
12 & 17 given by Jerome and Hugo Grotius is rejected.
*
*
*
But God Almighty75 forbade interest when he proclaimed in Exodus 22
v.25: ‘If you advance money to any poor man amongst my people, you
must not act like a moneylender: you must not exact interest in
advance from him’,76 and in Deuteronomy 23 vv. 19-20: ‘You shall not
charge your brother interest on money, on food, or on anything else
on which interest can be charged. You may charge interest on a loan
to a foreigner, but not on a loan to your brother, so that the Lord God
may bless you in all you undertake’ (and so forth).
So according to the Law of God interest is unlawful. I accept that,
but this applied to the Hebrew state — and even there not among all
people but only between Hebrews, and based more on civil than on
natural law. ‘Nevertheless that law was decreed by God.’ So be it; but
it was not written for the entire mankind but for the Hebrew People,
and it forms part not of the universal ius gentium, but of the civil law
of that people on whom God imposed it — God as leader of that state,
not as protector of mankind as a whole. Therefore it binds the
Hebrews, not as citizens of that greater state belonging to God and all
human beings, but as citizens of this smaller state belonging to God
and the Hebrews. This is similar to the lex Genucia,77 — or whatever
the law was to which Livy refers in Bk.35.7 as forbidding
moneylending among Roman citizens — before the Lex Sempronia78
was indeed binding on Roman citizens in this respect, but was not
binding on their Latin allies: it also took them into consideration, in
view of the advantage not of the human race but of their own state.
That law must therefore be considered to belong to civil rather than
to natural law.
And since this is apparent in the Lex Genucia, why will the same
also not be said about Mosaic law? For that law also did not prohibit
75
76
77
78
‘Optimus Maximusque’ was the classical cult - title of Jupiter.
Translation of Biblical passages based mainly on the version of the N.E.B.
342 BC. — a plebiscite which prohibited loans at interest.
193 BC. It ‘provided that Roman statutes on interest in loan contracts should be
also applied to transactions fictitiously … concluded with citizens of allied states
(socii) in order to avoid the restrictions imposed on loan transactions among
Roman citizens’ (Berger).
Chapter X
65
lending money at interest in general, but among Hebrews: for it did
not prohibit it between foreigners and Hebrews (Deuteronomy
23vv.19-20; 15v.6; 28v.44) although Leviticus 25 vv.35-36 states:79
‘When your brother is reduced to poverty, this ability to support
himself will waver: then you will sustain him, even as you would a
foreigner or a lodger, so that he may live with you. You shall not take
interest or a loan at interest, but you shall fear your God, so that your
brother may live with you. Do not give him your money at interest,
and do not give him your food at interest.’ For the Belgian
interpreters correctly understood this as referring not to all
foreigners but to those who had already been admitted into the
society of the Hebrew state and its sacred rites. Moses commands in
Exodus 12v.48 ff. and Numbers 15 [v.13-15; 29ff] that those people
enjoy the law of the Hebrews, and Justin Martyr observes (at p. 351
of his Dialogue with Trypho the Jew) as follows: ‘Certainly a proselyte
who has been circumcised after joining the [Jewish] people, is exactly
the same as an indigenous and original Jew’.
The Mosaic Law therefore only forbade the lending of money at
interest by a Hebrew to a Hebrew, but it did not forbid the lending at
interest to a foreigner by a Hebrew or to a Hebrew by a foreigner; and
it held that the practice of interest was disadvantageous not among
all people equally, but only among their own fellow-citizens. But if it
were to represent the ius gentium, it would prohibit interest as
conflicting not only with this civil union [of the Hebrews] but also with
the union of mankind, and it would be concerned not only with the
Hebrews but with any people whatever, and with foreigners no less
than with [Hebrew] citizens. For what is a transgression in terms of
the ius gentium can never be condoned because it is always wrong and
is, in short, condemned on rational grounds even when there is no
written law condemning it, because it is inconsistent with the type of
fellowship which God wished to exist among men, be they Hebrews or
others. Therefore it is inconsistent with the law which God
established for the preservation and promotion of that fellowship
among men, be they Hebrews or others.
But lending money at interest is not disapproved of in Mosaic law
because it might destroy the fellowship of nations: it is indeed
allowed to Hebrews in their dealings with foreigners, even though it
is forbidden to Hebrews in their dealings among themselves.It is
therefore forbidden among Hebrews not because of a fault which
would in any case be part of moneylending and contrary to natural
law, but in consideration of the expedience appropriate to the
citizens of that state.
79
The reading of Noodt differs substantially from that of the Biblia Sacra iuxta
Vulgatam versionem (Stuttgart 1969). The above translation naturally follows the
Noodt text.
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Book 1
What the nature of this expedience was, the law does not say,
although it seems to me probable that its author wanted his citizens,
being the progeny as it were of a single father80 (as were most but not
all of them — Exodus 12 vv.37 & 38), to be considered among
themselves as relatives; and even the Gentiles acknowledged that
relatives were bound by reciprocal moral duties. The author of the
law therefore wanted them to have not so much moneylending at
interest as a mere loan for consumption among themselves. This is
something that the Gentiles, too, allowed among relatives. But he did
not consider the bond between citizens and foreigners to be as close
as between citizens, just as the foreigners also did not consider that
they had the same union with the Hebrew citizens that they had with
their own fellow-citizens. And therefore, although humane conduct
free of charge towards foreigners was not disapproved of, it was also
not made a legal necessity. For [the author of the Law] allowed a
citizen who wished to do so, to make a loan to a foreigner, but anyone
who did not wish to make a loan free of interest was not forbidden to
lend to a foreigner at interest. This is what the Gentiles were
accustomed to do in all cases excepting friends and nearest relatives.
It was therefore a principle of civil law which prohibited loans at
interest among Hebrews.
But that principle will become more clear if you a little more
carefully consider the circumstances and the goal of that state on
which the law was imposed. It was indeed a new state, and one not
yet sufficiently settled in the reciprocal working of authority and
compliance; at that stage it was geared more for war, the care of
their flocks and agriculture than for commercial business.
I need not seek far for proof: that community did not have
ancestral land which was subdued and, through idleness, wallowing in
wealth and luxury. They did not even possess a fixed and established
dwelling-place, but having left Egypt in justified revolt, they were
still seeking a new dwelling-place, and as Josephus observes (Contra
Appionem lib.2), not a maritime one but one that was fertile and
suitable more for agriculture than for trade: in any case it would be
possessed by other nations and would have to be sought or retained
only by force of arms. In the meantime (for I shall refer to the report
of Moses in Exodus 13 vv.17-18) God did not lead his People via the
region of the Philistines, although it was the closest, but He made
them go round by way of the wilderness towards the Sea of Reeds.81
And Moses adds a clever reason for this: it was to avoid the People
changing their minds and turning back to Egypt when they saw war
before them.
80
81
i.e.Abraham.
mare algosum literally ‘sea abounding in sea-weed’ - probably the Gulf of Aqaba.
Chapter X
67
And so they encamped in deserted or else hostile places, always
wandering, poor and in need of everything. In those trying
circumstances it was in the interest of this new people that the spirit
by which so great a multitude was held together (a multitude
changeable from day to day — as is typical of the human race — and
regularly contumacious) not be broken: not by fear of dangers or
extreme poverty or other misfortunes which threatened them, be it
by enemies or by military life, especially in a barren and forsaken
place; but also not by the greed for moneylending and profit — a greed
which often divides people even when they have been brought
together in the best of circumstances. Tacitus also writes about Rome
when it was already a city but still rural and intent on warfare (Annals
6,16):
The curse of lending money at interest was indeed of old standing in the
city, and a most frequent cause of insurrection and civil discord: and for
that reason it was reined in already in ancient times when morals were
less corrupt.
Appian,82 too, remarks in Book 1 of his Civil Wars: ‘Those Romans of
old — as, also, the Greeks — appear to have been averse to lending
money at interest, which they saw as a commercial practice
exploiting the poor and as a source of disputes and strife.’
Being aware of this, the all-wise Legislator decreed what the
circumstances of the Hebrews demanded, namely that His citizens by
whose courage and faith in Him so many nations had to be conquered,
were not in the least to be provoked to avarice, to complaints, to
discord — things into which He knew they were by their very nature
inclined to be carried away. He preferred to curtail the opportunity
for those who sought it, and since it was necessary that they should
all be very closely united, He wanted individuals to devote themselves
not so much to their own profit as to their brotherhood, and the one
to be helped by the other, and if on occasion there was need for
money or victuals, as inevitably happened at times, this was to be
done in accordance with the mutual moral duty of friendship and not
with the moneylending in terms of the ius gentium. This was precisely
because it was in everyone's interest that no-one be destitute or
burdened, lest someone be easily provoked to insurrection or at least
desertion as a result of need. Add to this the fact that the money thus
asked in loan was not a large amount, and could therefore without
notable inconvenience be loaned free of charge.
So the law prohibiting the asking of interest was a civil law of the
Hebrews, imposed on the Hebrew state in straitened times and in the
interest of the poor, although it was also meant to be extended to the
82
Appian (fl.120 A.D.) wrote in Greek.
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Book 1
more affluent: for although it mentions the poor in Exodus 22 v.25, it
nonetheless speaks in general terms in Deuteronomy 23v.19, because
a prohibition in terms of which the poor should not be burdened was
applied to all — so indistinct was the difference separating the poor
from the rich. It readily happened that due to unforeseen incidents a
man who was otherwise deemed rich could on occasion be destitute:
so someone whom the law called ‘poor’ in Exodus 22 v.25, is described
as ‘reduced to poverty’ in Leviticus 25 vv. 35 - 36, and the injunction
is that ‘his wavering hand must be strengthened’. And that word
‘poor’ is not understood to mean ‘beggarly’ or something similar (a
loan is not given to someone vexed by constant indigence, for money
would be loaned in vain to one who has nothing; but he is given alms):
but it is understood to mean all those who require the help of a
financial loan due to a temporary need, something that occurs in
everyone's life.
In the next chapter I shall point out what is typical of a loan for
consumption and of a loan at interest.
But just as God prohibited lending at interest between Hebrews,
so He allowed it between them and foreigners. Was it perhaps
because he wanted nations that were hostile and in any case destined
for annihilation to be pillaged with moneylending by the Hebrews?
Perhaps you will agree, quoting the well-known passage in Tacitus
Historiae 5.5: ‘Among themselves they have a stubborn trust and
quick compassion, but towards all others a hostile ill-will.’ But that
judgment is true not of all Jews but only of the wicked or foolish ones:
it certainly was not God's judgment, although it appears to be so to
Ambrose when he writes the following in De Tobia c.15:
But perhaps you will say that Scripture says ‘You shall lend at interest to
a foreigner’, without considering what the Gospel says, which goes
further. But let us for the time being set this aside, and examine the
wording of the law itself, which says: ‘You shall not lend money to your
brother at interest: but you will exact interest from a foreigner’. Who
then, was this ‘foreigner’ if not Amalech, if not Amorrhaeus,83 if not an
enemy? There, so it says, you may exact interest. On one whom you
deservedly wish to harm, on one who is rightly attacked with arms — on
such a person interest is legitimately imposed. From one whom you
cannot easily conquer in battle you can quickly claim 12% p.a. for
yourself. Exact interest from one whom it is not a crime to kill. He who
demands interest joins battle without a weapon. He who is a usurer and
exacts interest from an enemy, avenges himself on a foe without using a
sword. So where you have the right to warfare, there too you have the
right to interest.
83
Or: ‘an Amalakite ... an Amorite’.
Chapter X
69
So says Ambrose, but I would be unwilling to accept this
statement, since it is far removed not only from the truth but even
from honesty. And at a time the charging of interest between fellowcitizens was also prohibited among the Romans, but between citizens
and Latin allies it was not forbidden (see my reference to Livy 35.7
above). Yet no-one would say that that was done in order that the
citizens might plunder their Latin allies by means of interest-bearing
loans: why then would we give another explanation in the case of the
Hebrews? ‘Because they are permitted to give interest-bearing loans
to foreigners, but specifically to foreigners who are enemies: and by
the law of warfare it is allowed let alone to plunder but even to kill
them.’
So be it. But the agreements which are drawn up concerning
moneylending and interest are observed according to the law not of
warfare but of peace and commercial dealings; therefore if they are
aimed at pillaging and are inconsistent with the ius gentium — as it
seems to Ambrose — they cannot even be concluded with enemies,
since they do not act as enemies when they enter upon a contract
among themselves, but as ordinary people who take care of their own
interests by the mutual exchange of benefits, in other words they
avail themselves of the ius gentium.
But let us for argument's sake allow the validity of Ambrose's
interpretation that money was loaned to foreigners at interest by the
Jews: what will he say if on the other hand it were to be loaned to
Jews by foreigners? For God allowed this too, as has been said above.
Surely it was not His wish that the Jews be weakened in turn by the
foreigners through moneylending? This Ambrose will not say, nor
would God want the reverse. Yet that is what the consequence will be
if interest leads to pillage and could be given to Hebrews by foreigners
equally as much as to foreigners by Hebrews.
I shall not add here that God indeed decreed that money at
interest be given by Hebrews to foreigners, but not especially to
foreigners who were cursed as a result of the wickedness of impiety,
but to any foreigners whatever. For He speaks in general terms, and
although He enjoined universal hatred for the Amalekites and the
Amorites and some other nations that are listed in Deuteronomy 7v.12, 20v.17, 25v.19 and Exodus 17 v.14-16, yet He did not enjoin hatred
for the Tyrians, the Sidonians, the Egyptians — in short for the rest of
mankind.
Yet I am not unaware that there are today — as there formerly also
were — people who believe that the fellowship of nations is
implemented only by formal agreements and not naturally, and the
law of warfare applies to states between which a [formal] peaceagreement has not been ratified; and finally they believe that war is
an absolutely natural manner of acquisition. This was the opinion of
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Aristotle in his Republic c.8. I pass over84 Pomponian in D.49.15.5.2,
where he, too expresses this opinion when he says:
In times of peace, the right of postliminium85 has been granted: for if
we are on terms neither of friendship nor hospitality with some nation,
and have not made a treaty with a view to friendship, those people are
indeed not enemies, but whatever of ours comes into their possession
becomes theirs, and if one of our free men is captured by them he also
becomes their slave. And the same applies if something of theirs comes
into our possession.
But although those people — even some Jews — were so persuaded, it
seems that God did not wish it to apply in the Jewish state: for when
He forbids violence to, or oppression of, a foreigner (in Exodus 22 v.21
and 23v.7), and decrees that he who withholds justice from a
foreigner is accursed (in Deuteronomy 27v.19), and finally when he
ordains (in Deuteronomy 23v.7): ‘You shall not regard an Edomite as
an abomination, for he is your own kin: nor an Egyptian, for you were
a foreigner in his land’ — then what can be nearer to the truth than
that He judged that although the Jews indeed did not have a
fellowship with foreigners, based on a human treaty, they did have
such a fellowship which was implanted by nature — as Camillus so
excellently said about the Romans and the Faliscans (Livy 5.27)?
But that which God specifically stipulated regarding nations on
whom there was a curse (as happens in these cases which have a
singular legal rationale) was not to be extended to other nations on
which He had not commanded a curse.
More acceptable than the Mosaic Law is perhaps the following
statement of Cicero (De Officiis 3.28):
There are people who say that regard should be had for the interests of
fellow-citizens but not of foreigners: such people tear apart the
universal fellowship of mankind, and when once this has been destroyed,
kindness, generosity, goodness, and justice are utterly extinguished, and
those who extinguish them must also be considered to have no reverence
for the immortal gods, since they overturn the fellowship between men
which those gods have established.
Further, regarding the accursed nations: although God enjoined a
public hatred for them, He nonetheless commanded that it be
exercised not boundlessly but tempered by moderation and reason.
For it was His wish that they be offered peace terms, obviously in
order that they would be able, if they so wished, to free themselves
84
85
This is a fairly common meaning of mitto (cp OLD s.v. 5); here it seems to
introduce the rhetorical device of praeteritio — the ‘summary mention made of a
thing by professing to omit it’.
The right of return to former legal status (of an ex-prisoner of war).
Chapter X
71
from imminent ruin by becoming slaves of the state (Deuteronomy
20v.10 ff.).
I therefore do not agree with Ambrose that God allowed the Jews
to lend money at interest — that is to say, a shameful and disgraceful
thing — with a view to the violent death of foreigners. And how can
this be acceptable to anyone for whom reverence for God is too
inviolable to let Him appear to approve something which is
unbecoming to Him, simply for the sake of somebody's favour? And
although this could befall human emotions, it cannot befall God, who
is corrupted by nothing.
And yet, when His People were about to leave Egypt He allowed
them to steal, under the guise of a ‘loan for use’, gold and silver
jewellery and precious clothes of the Egyptians (Exodus 12 vv.35-36).
That this is quite natural and proper is taught not only by reason but
also by Ulpian [D.50.16.42]: but do not call it theft, for it is not theft.
It must rather be called a ‘pledging’ by which the Hebrew people kept
the Egyptians’ possessions for themselves in accordance with the ius
gentium, in compensation for the long and unjust serfdom which they
suffered under the kings, without payment. For that rule [of the ius
gentium] has been maintained that the assets of citizens can be taken
or held back in exchange for that which a state or its ruler owes and
does not deliver.
Certainly, for people who follow this interpretation it would be an
easy route to injustice, because the property of rulers — who are few
in number and sometimes quite powerful — comes under the control
of their creditors more rarely than the property of private individuals
who are more in number and weaker in influence. To this can be
added that people who belong to the same body politic are believed
to obtain their rights more easily from the state than would
foreigners, who are often accustomed to be disregarded.
If this is then right and just among all nations, why should it be
disapproved of in the case of the Jews? For on their departure from
Egypt in order to free themselves from despotic rule, they kept the
property of the King's subjects in order to have something from which
they could restore what had been their own, since they were
otherwise unable to obtain what was rightfully theirs, owing to the
King's power and iniquity.
And Tertullian seems to feel the same when he says (Adversus
Marcionem 4.24):
But if Christ, too, asserted that workers deserve their pay,86 He
therewith justified that injunction of the Creator regarding the carrying
86
1 Timothy 5 v.18.
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off of the gold and silver vessels of the Egyptians. For those Jews who
worked in the villages and cities of the Egyptians in any case deserved
the payment of a worker: they were prompted not to deceive but to
compensate for the payment which they could in no other way exact
from their masters.
This should be strongly noted.
Likewise should be noted what the same Tertullian writes in
Bk.2.20 of the same work, namely that the Egyptians at some time
through their ambassadors instituted an action for the restitution of
the things that had been taken away [by the Hebrews]; but when the
Hebrews instituted a counter-action for an estimate of the value of
the servitude rendered by them, the Egyptians eventually withdrew
their action after they had been persuaded by the proof of the
fairness of the Jewish claim. Where does this lead us? It is clear that
God did not allow the Jews to lend money at interest in order for them
to have something with which they could plunder foreigners — that
interpretation of Ambrose is too base to be in harmony with the
majesty of divine law.
What then is the position? I would think that God had none other
than a just and divine reason for allowing interest-bearing loans
between Hebrews and foreigners; indeed just as Roman generals in
times of war were always very careful of commercial interests (as the
elder Pliny observes in Historia Naturalis 26.4), so it was only
reasonable that Hebrews and foreigners conducted their commercial
dealings according to the ius gentium. And that this should be so was
in the interest of the very Hebrews themselves, for although they
hoped for abundant spoils from conquered enemies, they gathered
from their own flocks and herds (in which they were rich) hair87 and
wool and other produce of this type in great quantity, perhaps also
woven textiles and other products of the arts in which they were wellversed. In all it was necessary that there be people to whom they
could transfer superfluous things by whatever kind of transaction.
Every day they still had to bring from neighbouring regions things that
were necessary, publicly or individually, to such a multitude,
especially in that deserted and barren place. And in order to enable
foreigners to do this, they had to be enticed by sharing benefits and
law. And it is on account of this that God forbade violence against or
oppression of a foreigner (Exodus 22 v.21; 23 v.7). He also laid a curse
upon anyone ‘who withheld justice from a foreigner’ (Deuteronomy
27v.19). Then finally He decreed that commercial dealings be carried
out with foreigners in accordance with the ius gentium, and that just
as it was right and just to buy from them, sell to them, barter, let and
hire with them, so also it was right and just to give and receive
87
pilus - probably camel- and goat-hair.
Chapter X
73
subject to interest. And if foreigners traded with Hebrews and loaned
to them subject to interest — something which they were able to do
in accordance with their own laws and customs — He then wished an
agreement on interest to be honoured in the Jewish state. And in
order that the Hebrews might have a law that was the same abroad as
at home, He even granted it to them that if they loaned to foreigners,
they might in like manner stipulate and demand interest from them.
And by that foresight and equity He established something that
deserved to be admired and remembered for all ages. The result was
that although so many thousands were in barren and forsaken places,
among so many enemies for so many years, in spite of needing
everything they were never destitute of anything.
How are we to understand what we read in Deuteronomy 29 v.5
and 8 v.4 regarding their sandals not wearing out and their clothes not
becoming older? I here give the words of both passages,88 because
they have been made to mean something else by many people:
Deut.29 v.5: ‘I led you for forty years in the wilderness; your clothes did
not wear out so that you would not have protective covering, nor did
your sandals wear out so that they could not protect your feet.’
Deut. 8v.4: ‘Your clothes did not wear out so that you would not have
protective covering, and your feet did not become swollen over those
forty years.’
Now this way of speaking is very much the same as that of Justin89 in
Bk.2, which I give here since I do not recall it being referred to by
anyone else:
For the rest, if you were to look at the king, it would not be the ruler
whom you praise, but his riches; for there was such an abundance of
riches in his kingdom that even after rivers had been wholly taken up by
a mass of them, the royal wealth was still more than enough.
This is a fine and notable passage: Justin does not mean that in any
case the very same riches which had formerly been there were still
more than enough, but that those that had been used up in warfare,
although countless, did not need to be replaced by other riches: and
this is consistent with the words of Moses quoted above.
This is how I understand it, and I do not doubt that I am right.
Others believe that the Jews still had the very same clothes and
sandals, not aged or worn away, when they left the desert as they had
when they entered it: this is too foolish to be accepted by people who
88
89
The Latin quoted by Noodt differs substantially from the Vulgate text in use
today, but the basic argument is not affected by this.(see n.79).
Probably Justin Martyr (died ca.165) of whom only 3 works are extant. Noodt does
not name the work from which he quotes. The ‘way of speaking’ probably refers
to the rhetorical figure hyperbole.
74
Book 1
are wise and who search for the transparent truth — reason and
commonsense cry out against it. And even if we were to concede that
neither clothes nor sandals had worn away in forty years, who would
still believe that the same clothes, the same sandals that fitted them
when they were infants, still fitted them when they were adults?
Unless the feet and limbs of people did not grow in the meantime, or
their sandals and clothes grew together with their feet and limbs. And
Hugo Grotius attests to the fact that the Jews confirm this (in his
commentary on Deuteronomy 8v.4).
I see that Salvianus90 held that view in his De Gubernatione Dei
Bk.1, where he says:
Furthermore, they were people who knew no increase in any part of
their limbs nor any decrease in their human bodies: their nails did not
grow longer, their teeth did not deteriorate, their hair was always the
same length, their feet were never bruised, their clothes not torn, their
shoes not damaged — an overflowing blessing of men, extending to the
dignity even of their cheap garments.
Thus Salvianus: but he talks nonsense. For if his view was correct, the
result would in any case have been that infants and children who had
entered the desert would after forty years have left it with that same
build of infants and children, even though most of the people who had
entered the desert at more or less adult age had died in that period
of forty years, with the exception of Joshua and Caleb (Numbers 14
v.22 ff.; Deuteronomy 1; Joshua 5 v.4 - 5; 14 v.6 ff.).
Another result of the view expressed by Salvianus was that when
the People who left the desert when they were already adult and of
fairly advanced age, they had the same body-size as that of infants
and children.91 No statement could be sillier. Now since the People
would in such a long lifespan have grown by a generation, it would be
necessary even for those who disagree with me to assume that the
new generation of Jews were born with clothes and shoes on, or that
from then on they lived in a state of nudity. But if, as the fact is, it
seems closer to the truth that articles of clothing which they did not
have previously, were provided for them, why shall we claim that it
was different for all the others?92 Or what need is there to take such
an absurd position in their case? None at all.
For, not to mention the spoils taken from conquered enemies,
who would deny that from their livestock (of which it is said in
Deuteronomy 3 v.19 that they had a great abundance in their camp)
they collected, beside milk and offspring, also hair, wool and hides?
90
91
92
Salvianus, a priest of Marseilles, ca.400 - 480.
But this Noodt has already said a few lines above: it is not ‘another result’.
i.e. those who originally left Egypt.
Chapter X
75
But it is also unlikely that people who had since ancestral times been
assiduous breeders of livestock, were so lazy or so foolish that they
would have either neglected or been unaware, especially under those
circumstances, of a matter as essential as it is universally
advantageous for the affairs of men. But to whom would that produce
be worthless or unknown? In D.34.2.24 — 25 Ulpian and Paul state:
Clothing can also consist of skins, since several people have shirts and
blankets of skin. Proof of this is also that certain nations such as the
Sarmatians bedeck themselves with skins.
Varro (De re rustica bk.2, final chapter) says:
As sheep provide from their wool a product for clothing, so goats provide
hair for nautical use and for engines of war and for the instruments of
craftsmen. Furthermore some nations clothe themselves with their
skins, as in Gaetulia and Sardinia. It appears also to have been used
among the ancient Greeks.
But if that is the case, why would they not have bought them from
their neighbours or from travelling salesmen in exchange for money or
essential articles, in the manner of the shepherds described by Vergil
in Georgica 3 v.305 ff., or following the example of the army of the
Greeks, of whom Homer says in the Iliad [bk.7 vv.471 ff.]:
From them the long-haired Achaeans bought wine,
some in exchange for bronze, others again for gleaming iron,
others for hides, some for the live cattle,
others for slaves
What if I were to add that there were people in the camp of the
Hebrews who wove garments? For what Moses tells us in Exodus (25,
26, 28 and likewise 35 - 39) cannot be denied, namely that there were
in this camp craftsmen of every kind who made — among other things
— the holy Tabernacle and its furniture, and also the priestly
vestments and ornaments. Indeed Moses also writes in [Exodus] 35
v.25 that several diligent women with their own hands spun and
brought violet, purple and double-dyed scarlet yarn, and cotton; and
in v.26 that women also diligently spun goats' hair. And in [Exodus] 39
v.22 he says that artisans made the mantle of the ephod, a single
piece of woven violet stuff; and then in v.27 that they made the
under-garments of cotton, woven work, for Aaron and his sons.
But to settle this matter: since the law relating to interest-bearing
loans was introduced by Moses solely for the benefit of his citizens, it
is clear that it had neither applied to all nations nor was it everlasting,
but it was peculiar to the Jewish People alone, and when this was
repealed, it ceased to exist, in precisely the same way that all the
other laws of that state ceased to exist.
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‘But’, you will argue, ‘the authors of Psalm 15 and Ezekiel 18
apply that law to the good conduct of the human race rather than to
the law of the Jewish state when they define a good man as one who
does not put out his money at interest.’ Unless both should be
understood to be based on the Law of Moses, of course meaning that
in the Hebrew state, a good Jew would be one who would not give at
interest to another Jew, not to nobody at all; but to a foreigner he
would give at interest, for that is what God's law says. And if it was
not changed while the state still stood, why should it not be allowed
to be valid now?
I am therefore afraid that I cannot agree with Jerome when he
says the following in his commentary on Ezekiel 18: ‘And he would not
loan at interest’, or as the Septuagint translated it: he would not give
his money with a view to interest. In the Hebrew version interest of
any kind is forbidden, but in the Septuagint only that of money. This
conforms with what is written in Psalm 14: ‘who did not give his
money at interest’. And how can it be said ‘you may not lend at
interest to your brother, but you may do so to a foreigner’? But see
how it developed: at the beginning of the law lending at interest is
not allowed only in the case of brothers, but in the prophet Ezekiel
interest is forbidden for all when he says: ‘He did not give his money
at interest’. Furthermore there is an increase in moral status in the
Gospel when the Lord warns ‘You lend at interest to those from whom
you do not hope to receive back’.
I would say the same of Hugo Grotius, famous and excellent man
that he was, when he writes in De Jure Belli et Pacis 2.12.20:
It must be enough for us that the law given by God to the Hebrews
forbids Hebrews to give money at interest. For the subject- matter of
this law is, if not essential, at least morally to be honoured, and that is
why it is also included in other highly moral precepts, as in the Psalm
which is numbered 15 in the Hebrew edition and 14 in the Latin one, and
as in Ezekiel 18. Things of this nature are binding on Christians too, since
they have been called to be better examples of moral excellence; and
those duties which a Hebrew man or someone circumcised in some other
sense (for such a person is in the same position as a Hebrew) is enjoined
to perform, must now be performed by any person, now that every
distinction between peoples has been removed by the Gospel, and the
signification of who our neighbour is, has been broadened.
Yet it is something to be marvelled at that such an outstanding man
was able to have recourse to this opinion, especially since he wrote
the contrary in his Annotationes ad Lucam, chapter 6.
Chapter XI
Loans at interest with reference to principles of
Christianity
[Summary]
Lending at interest is not forbidden by the words of Christ in Luke
6v.35 and Matthew 5 v.42, but the topic here is a loan for
consumption, i.e. principal, and that free of charge. The names
‘sinners and fools’ refer to the populace. Christ abolishes neither
loan nor other contracts of the ius gentium, nor legal proceedings,
but He directs the kindness at which the Law of Moses was aimed,
against the chicanery of the court through which that kindness was
slackened by the Hebrew lawyers. The reasoning of Seneca and Cicero
is similar to this. The ancient custom of our family-heads, both the
very scrupulous and the more freely liberal, regarding the lending of
money is illustrated with references to Plutarch, Ulpian,
Chrysostomus and Seneca. Our Lord's words ‘Grant a loan without
expecting anything from it’ refer to this custom. The Lord is not
speaking literally, but is using hyperbole, although not in the sense
that he is aiming at what is excessive but at what is in moderation.
That this is a wise practice in teaching is shown in a noteworthy
passage in Seneca. St Augustine did not notice the hyperbole. The
Lord did not abolish lending at interest between Jews and Gentiles,
nor between those who accept its beneficial discipline, but only if
such lending is not forbidden by their own civil law. The error of
Ambrose. The Emperor Justinian did not err when he retained the
title on interest in the Pandects and the Code, nor did he regret
having done so.
*
*
77
*
78
Book 1
Now in Luke 6 v.35 Christ teaches as follows:
And if you give a loan only to those by whom you hope to be repaid,
what credit is that to you? For sinners lend to sinners with a view to
being repaid in full. But you must love your enemies and do good to
them, and grant a loan without expecting any return: then you will have
a rich reward, and you will be sons of Him, the Most High.
But let us see whether Christ is speaking not of interest, but of
principal or capital, and whether what he calls a loan is not lent at
interest but free of charge. For that inspired discourse of His relates
to the Law of Moses of which I spoke in the previous chapter. And it
does not apply to loans between Gentiles and Jews, between whom
lending at interest was permitted if the law allowed it, but it does
apply to the Jews among whom a [gratuitous] loan was indeed
permitted, while lending at interest was prohibited by law.
Furthermore Christ states that ‘sinners lend to sinners with a view to
be repaid in full’: what is this other than that the people give loans to
another? For Christ calls those people ‘sinners’ whom the stoics call
fools, that is the populace. So Persius says in Sat. 5 [v.93]:
It was not the task of the praetor to dispense the subtle worldly duties
to fools, or to allow them the benefits of an impetuous life.
So, too, Ausonius in his Ludus septem Sapientium (p.86):
Bias93 of Priène said [in Greek] ‘most people are bad’, but we must know
that they whom he called bad were merely inexperienced.
Cicero in turn defines ‘mutuum’ as follows (ad Fam. 5.2.3):
Regarding your remark on our ‘reciprocal affection’, I don't know what
meaning you attach to 'reciprocity' in friendship. For my part, I think it is
when goodwill is received and returned in equal measure.
Christ therefore wants a Jew who needs a monetary loan to be helped
by a fellow-Jew, whether he hopes to receive back the principal he
provided, or whether he entertains no hope of receiving it back. And
this is what Matthew commends in ch. 5 v.42 when, in referring to
precisely this precept of Christ, he formulates it as follows: ‘Give to
him who asks of you, and do not turn your back on a man who wants
a loan from you.’
On this passage Johannes Chrystostomus comments as follows
(Homil. 18 on Matthew):
But here Christ calls a loan not that infamous interest-bearing
moneylending, but simply the kindness of lending. And elsewhere he
93
The philosopher Bias (fl. 550 B.C.) was one of the seven wise men of Greece.
Chapter XI
79
means exactly that when he says that we must give to those from whom
we do not expect to receive anything back.
That is what Moses, too, had commanded in Deuteronomy 15 v.7 ff.
This does not, however, imply that Christ disapproves the repayment
of a loan even when the debtor is quite able to give back without
inconvenience that which has been loaned to him. For Moses also did
not mean this in the passage referred to above, and Seneca very
correctly states (De Beneficiis 3.14):
The saying ‘Give back what you owe’ is most just and is commended by
the ius gentium.
But what of the fact that Christ says (Luke 6 v.30) in similar fashion:
‘Give to everyone who asks from you; when a man takes what is yours,
do not demand it back.’ Yet He does not forbid buying and selling, or
bartering, or legal claims; for He does not want to do away with the
brotherhood of human society, nor with the laws and obligations
involved in that relationship.
There is no need for corroboration: Christ Himself points this out
in Matthew 5 v.7, where he declares that He did not come in order to
abolish the Law, but to fulfil it. It was therefore His task to increase
that human kindness which had somewhat diminished due to the
erroneous and deceitful interpretations of the court and by tightening
its bonds, to entrust it to men.94 They should namely conduct
themselves courteously, kindly and justly in the matter of contracts
and legal claims — in a word, in every aspect of life, to contribute to
that peace which is the very best thing for mankind and most pleasing
to God, and which cannot be obtained without kindness and courtesy.
He therefore wishes men to use contracts, obligations and the legal
system, but not to abuse them, and not to pursue the subtleties of a
law in order to satisfy their covetousness or ill-will, but to strive for
reasonable law which looks to the benefit of human society, more or
less in the manner suggested by Seneca in de Ira 2.28:
How narrow is an innocence which is confined to obeying the law! How
much broader does the rule of moral duty extend than that of legal
rules! How many things do dutiful respect, kindness, a noble spirit,
justice and trustworthiness demand, all of which fall outside the scope
of official codes!
So far Seneca: likewise Cicero says (de Officiis 2.18.[64]):
It is fitting that one be not only liberal in giving, but also not harsh in
exacting what is due to you, and to be fair and reasonable in every
business relation — be it selling or buying or hiring or letting neigbouring
and adjacent property, yielding much of one's own right to many, indeed
94
The sense of the Latin is not clear.
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Book 1
avoiding litigation as far as one is free to, and perhaps even a little
farther. For it is not only generous but at times even advantageous
occasionally to hold back on your rightful claims. But one should
nonetheless have care for your personal property, for to allow it to
deteriorate is disgraceful; but such care should be of such a nature that
there will be no suspicion even of meanness and avarice.
There you have the excellent precepts of ancient wisdom — flowing
forth from natural reason, in other words from a divinely inspired
source, and therefore common to the whole human race.
When Christ advises ‘Grant a loan without expecting any return’,
He is not abolishing lending between Jews, i.e. (to quote Aulus Gellius
Noctes Atticae 20 ch.1) ‘this relief of a temporary need which
generally crops up in any man’s life.’ Christ also does not want one to
withdraw from legal action regarding a loan (how few people would
be prepared to give a loan if they would not have the right to claim it
back!), but what He does want is that which is a natural consequence
of human fellowship and which the Law of Moses strives for, namely
that a Jew makes use of his legal right toward a fellow-Jew, but
benignly: in a word ‘that he who intends opening an account with
anyone does not make enquiries about the personal possessions and
life-style95 of the potential debtor’ (Seneca de Ben. I.1.2), which one
would in any event expect from a sensible creditor. Plutarch, too,
says in his De vitando aere alieno: ‘No-one lends money to a destitute
person, but only to those who plan to build up some resources for
themselves and who have someone who attests and stands surety that
they are people to whom a loan can safely be entrusted.’
So also Ulpian (D.17.1.42): ‘... only if I have instructed you to
investigate the financial position of him to whom I intend giving a
loan, and you report back that he has sufficient means’.
Johannes Chrysostomus also says (Homilia 57, on c.17 of Matthew,
tome 1 p.503):
For what is more difficult than to lend at interest and with the greatest
of care to seek sureties for the interest or reciprocities of this nature,
and then to live in fear for the pledges or the principal or the accountbooks, or the interest or the very sureties themselves? For in these
worldly matters even the simple safety of suretyships is brittle.
But my exposition must now return to where it started from. I said
that Christ meant that if a Jew can assist a fellow-Jew with a loan, he
should prove himself willing to do so, even at the risk of his principal,
for this is what one would expect from a kind and generous man, but
not from one who is peevish and hard-hearted. Seneca refers to both
kinds in Epist. 119.1:
95
reading vitam for Noodt's vasa.
Chapter XI
81
You will need a creditor; in order to be able to engage in business it is
necessary that you enter into debt; but I do not want you to borrow
through an intermediary, I do not want brokers to bandy your name
about: I shall provide you with a ready creditor.96
Likewise Christ wished that a loan should be paid back if this could be
done without detriment to the debtor; if not, He did not wish it to be
claimed back in a harsh manner.
There you have what Christ meant, neat and clear — at least with
my added comment that when He said ‘Grant a loan without
expecting any return’ he was not speaking literally but was employing
hyperbole, in order to achieve not an excessive effect but what is
within moderation, in the manner of teaching which is customary to
the wise. And I am adding Seneca's comment in De Beneficiis 7.22 - 23
even though it is rather long, so that something which is sophisticated
but does not receive sufficient attention may become somewhat
better understood. These are the words of Seneca: ‘Anyone who
thinks that when I say that someone who has given a benefit ought to
forget it, I am driving out the memory especially of a very honourable
act, is mistaken.’ We sometimes prescribe rules excessively in order
that they may eventually arrive at their true value. When I say ‘he
must not remember’, I want it to be understood in this way, that he
must not loudly proclaim it, nor boast about it nor be offensive. For
some people tell all and sundry of the benefit they have bestowed:
they talk about it when sober and make no secret of it when drunk:
they inflict it on strangers and entrust it to their friends. It was in
order that this immoderate and reproachful recollection [of having
done a good deed] might subside, that I recommended that the one
who has given must forget about it, and by ordering him to do more
than could actually be done, advised him to remain silent. Whenever
one has too little trust in those to whom you give instructions, you
must demand more than is sufficient so that what is in fact sufficient
may be delivered. All hyperbole is employed in order to arrive at the
truth by falsehood. In this way the poet who said ‘[horses] which
excelled the snows in whiteness and the winds in speed’97 expressed
something that was impossible, in order that he could be as credible
as possible. And the one who said ‘More immovable than these rocks,
wilder than the torrent’98 indeed did not think he could convince
anyone that somebody can be as immovable as a rock. Hyperbole
never expects to achieve as much as it dares, but states the incredible
as a fact in order to arrive at the credible. So when I say that he who
has given a benefit must forget it, I am actually saying it must be as
good as forgotten: the memory of it must not appear or intrude. When
96
97
98
Noodt carefully omits the punch-line which follows: ‘You shall borrow from
yourself’.
Vergil Aen.12.84.
Ovid Met.13.801.
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Book 1
I say that a good deed must not be repaid, I do not totally reject
demand for repayment, since bad people often need to be forced and
even good people to be reminded. What then? Am I not to point out
an opportunity to one who is unaware of it? Am I not to reveal what is
due to me? And why should someone falsely deny that he knew about
it or else be sorry that he was not aware of it? Sometimes a reminder
is called for, but then it must be diffident and not demanding, nor
should it constitute a summons [to appear in court].
So you see the nature of Hyperbole which I said the wise employ
in their teaching, and which Christ made use of after their example.
And although St Augustine did not recognise the hyperbole, it is clear
how he is to be understood (Homilia 48):
Whom do you seek out who would make your money grow? You seek out
someone who is glad when he receives, and sad when he gives back. He
begs to receive, but resorts to subterfuge to avoid repaying. But do
indeed give to, and not turn your face from, him who asks a loan, but
accept as much as you gave; for else you have ruined a good deed. And if
this precise amount which you intend giving is demanded, he perhaps
does not have [the funds] at hand to be able to repay. You tolerated him
when he asked, now anticipate that he may have nothing! Don't exclaim
‘Do I ask for any interest? I seek as much as I gave, this is what I shall
take back.’ You have not lied, you speak the truth: you are not a
moneylender, and you want him to whom you loaned to find a
moneylender in order to be able to repay you. But even if you are not
exacting interest in order to avoid God judging you to be a moneylender,
you are applying pressure, you are strangling, you are extorting. If you
extort just as much as you gave by strangling your debtor and keeping
him in distress, you have not bestowed a benefit but have heaped
greater distress upon him. But perhaps you say ‘He has reserves from
which he can repay: he has property, let him sell that.’ When your
brother asked you for a loan, he asked in order to avoid selling: for that
reason he did not sell, because you came to his aid to avoid it. This is
what God wants, this is what God demands.
For the rest, as Christ did not reject a loan for consumption between
Jews, so He also did not reject lending at interest between them and
Gentiles, since He also did not reject between them the law which
Moses based on the ius gentium. Indeed, when He speaks of others
who are not Jews, he also does not disapprove of the system of
increasing one's private assets by means of lending at interest, as is
clear from Matthew 25 and Luke 18.99
Therefore a Jew could up till then, in agreement with the
teaching of Christ, lend at interest to a Gentile, and a Gentile or a
99
The reference is to the parable of the rich owner (or king) who berated his
servant who did not at least invest the money entrusted to him in order to earn
interest (the Vulgate has usura in both passages).
Chapter XI
83
stranger to a Jew — at least if it was in accordance with the civil law
and did not overstep the limits of human benevolence. For this was
formerly allowed not only by the ius gentium but also by the Law of
Moses, but although the latter allowed lending at interest between
them, it nonetheless prohibited oppression of a foreigner by a Jew,
and furthermore it was necessary to endure a legal rule which was not
subsequently changed. Likewise it must be said that today those
embracing the salutary sect of Christ are not forbidden to lend at
interest, but only if it is not disapproved of by their own civil law:
because it is true that the civil laws which God imposed on the Jewish
state did not apply to other states having other standards. And if this
is so, I fear that reason deserted Ambrose in De Tobia ch.14, where
with regard to [the position] in the state of Rome and among
Christians, he argues as follows:
You have heard, moneylenders, what the law says of which the Lord said
‘I did not come to abolish the law, but to fulfil it’.100 Do you wish to
abolish the law which our Lord did not abolish? And likewise: ‘Do not
demand more from a person from whom it is already difficult to ask back
only what you gave him, except when he has means from which to pay’.
The Emperor Justinian acted more correctly and wisely when he
retained [the word] usurae in the titles of his Digest and Code. But
this interest was not unbridled or unrestricted, but was confined
within acceptable limits which in the final analysis were not in
conflict with the tenor of the ius gentium and the common interest.
Indeed, what better proof of that matter can I present than custom,
that most excellent censor of statutes: it was custom that introduced
interest after the father of Leo the Philosopher101 had condemned it
when he was moved by an empty show of piety by which he was
deceived into making a more superficial observation than behoved the
author of volumes on both secular and sacred matters. But the
eventual outcome was that the son was in due course compelled to
repeal his father's law, giving as reason that the Novella Leonis 83 was
not only not beneficial — as the legislator had intended — but also
harmful.
What Accursius considers in his comment on C.4.32 is hardly worth
noting, although Antonius Faber (on D.19.1.13.26) either proves or at
least does not deny that even Justinian was eventually displeased
with interest, referring to Novella 131.1, where he declares publicly
that he accepts the decrees of the Council of Nicaea and its doctrines
as sacred scriptures, and that he regards its rules as laws. But, as I
warned above, that Council curbs interest not for all people but for
100
101
Matthew 5 v.17.
Basilius Macedo (emp. 867 - 886 A.D.) was the father of Leo IV (Philosophus)
(emp.886 - 911 A.D.).
84
Book 1
clergymen, for whom other things, too, are forbidden by Canon Law,
which are not prohibited for other people.
Chapter XII
Loans at interest: Canonic prohibitions rebutted
[Summary]
Everyday practice adapted the inflexibility of Canon Law regarding
interest to the equity of the ius gentium, not entirely without the
approval of the interpreters of that law.
*
*
*
I would further add that everyday practice brought even the pontifical
decretals by which, as I have pointed out, interest was strictly
prohibited, under its sway. This was done by discovering verbal
subtleties by which a matter could, by relaxing the inflexibility of the
law, be brought to a state of natural equity. I shall be satisfied to
present only one or two of many examples.
When lending money men did not stipulate lending money at
interest, in order not to act in conflict with the pontifical decretals,
but in the meantime also not to allow the money the use of which they
were granting to others, to be unproductive (naturally because it was
believed to be given out of a sense of moral duty and not for any other
just reason, contrary to the concept of loan for consumption, which
should, by its nature, be gratuitous), but instead they stipulated that
money be given to them to make up for the loss which they appeared
to suffer or the gain they apparently forfeited as a result of giving
85
86
Book 1
their money for use [to somebody]. Couvarruvias102 writes (bk.3 of
Var.resol.c.1 n.2, beginning with ‘hinc justissime’) that this was most
justly defended since it was aimed at making up not for a moral duty
but for the total loss suffered. He also adds (in ch.4 n.5) that when
commencing a contract of loan a creditor can make an agreement
with the debtor about that which might affect not only his loss but
also his gain, even before default; and that that interpretation is
confirmed by the judgment of most authors, although some may
disagree.
Hugo Grotius (De jure belli et pacis bk. 2 c.12.21) does not
disagree with this opinion, saying that there certainly are practices
that closely resemble interest and generally appear to be interest
although they are actually agreements of a different nature. As an
example he presents a settlement on compensation for loss incurred
by one who gives money on loan, because of the fact that he is
deprived of his money for a long time, likewise on compensation for
gain lost because of the granting of a loan, after deduction, of course,
for the uncertainty of expectation and the effort to be put in; so also
for the expenditures of one who gives money on loan to many people
and with a view to this has to have it at hand; and for the risk of losing
the principal when the security is not considered sufficient. It was
therefore held that an agreement on interest is to be distinguished
from one which is concerned with ‘total loss’, and that the one is
censured by the pontifical law, but the other not to the same extent.
But what else than the force and authority of lending at interest and
interest as such is covered under the guise of ‘total loss’? Especially
since it is true that interest is not bartered against the moral
obligation, as the counter-argument goes, but against the use of the
principal; although I would concede that money lent at interest fulfils
the same function between strangers as moral obligation does in the
case of a loan between relatives, just as rental in the case of letting
and hiring between strangers has the same effect as moral obligation
has in the case of loan for use or mandate between relatives; and noone would for that reason say that in letting a thing or services, rental
is paid out of moral obligation, but it is given for the use of the thing
or the services.
From what has been said above it is clear that through a baseless
interpretation of the law the bare words of the pontiffs are indeed
preserved, but their intention and meaning are circumvented. Yet
even so the canon law could not aspire to the benevolence of the civil
law, but rather through that deception found a far greater profit for
interest, because in civil law unlimited interest was not allowed, not
even under the pretext of total loss, but only up to a certain and
102
Co(u)varruvias, Spanish jurist (1512-1577).
Chapter XII
87
acceptable limit (as I shall show below in Bk. 2 ch.3, 5 and 6), whereas
on the other hand in canon law the estimate of total loss when money
is loaned, is not inhibited by any limits. So Carolus Molinaeus103
(Tract. Commerc. & usurarum. n. 75 ff.) and before him Andreas
Alciatus104 in his gloss on D. 50.16.121.
However, in order not to allow avarice to go too far, the laws and
daily practice of the regions also in this respect took account of
human nature by laying down limits within which the estimate of total
loss would be confined in the lending of money (so Hugo Grotius
Introd. ad Jurispr. Batav. p.3 c.14 ad fin, and Johannes a Sande
Decisiones Frisicae bk 3.tit.14 difin.3).
There was also a further strategy of disguising interest under the
semblance of buying and selling, especially by adding an agreement
on buying back, in the following way: you ask me to lend you money,
and in order to make it acceptable you do not offer interest in
deference to the pontifical decretal, but since you own a farm on
which the annual return is equal to the interest on the money loaned,
you say that you want to sell this farm for the sum of money that you
had asked as a loan, with the proviso that you retain the right to buy
back the farm whenever you should so decide. I buy the farm and pay
the price; you transfer the farm while I receive the fruits. Thereupon
you repurchase the farm, I receive back the price I paid, and retain
the fruits which I have in the meantime received. Is this an interestbearing contract? It is not, since it is not a loan for consumption to
which interest properly falls, but simply a buying and selling from
which I receive the fruits not in the form of interest on money, but
from the benefit of my farm: and I am unable to claim back my
principal although you would be able to give it back to me; I only have
the power to claim my farm. So says Ludovicus Molina (De Justitia et
Jure tract.2, disput. 320.n.4 pag.121), basing his argument on the
general consensus of the jurists. He goes on to add that Cajetanus
rightly advises that people who receive certain regions105 from
princes as security in return for money needed by those princes, if
such people want to make the returns on those regions their own
without the blemish of interest or the burden of restitution, and not
credit them to the principal, ought to buy those regions under an
agreement of repurchase and in that way make the returns legally
their own. So says Cajetanus, and not wrongly, as far as legal subtlety
goes. But if you were to consider the simple facts of the matter, in
short, what is really being done, then you are enjoying the fruits of
my principal, and I am enjoying those of your farm, in order to
103
104
105
French jurist (1557 - 1624).
Italian jurist (1492 - 1550).
civitates — which can be (i.a.) states or cities, but in Medieval Latin the meaning
seems to have broadened (cp Niermeïjer s.v. civitas).
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Book 1
prevent my principal being unproductive while it is beneficial to you.
It is therefore a contract of interest, but it lies concealed under the
pretext of buying and selling.
The same is to be said about the annual returns which (as allowed
by Martinus and Calixtus III106 in extravag. comm. C. regimini, de
emptione et venditione) are usually bought at a fixed price from the
proceeds of farms or buildings under an agreement of repurchase, as
very clearly shown by Jacobus Curtius (Conjectur. tom.I.lib.3, c.29).
What now if even the interpreters of canon law are of the opinion
that interest, albeit in moderation, can be demanded and accepted?
Is that indeed so? Nothing is closer to the truth. And where does that
happen, according to them? When a contract of loan for use is agreed
upon not at the wish of the creditor, but through the compulsion of
the law. An example of this is when subjects are forced to give a loan
at the command of a prince or of the state (as a result of the ferocity
of a war) on behalf of armies or garrison soldiers who have to be fed.
For what reason [is such interest acceptable]? For the reason that
it is not the interest-related result of the money which makes it sinful,
but the desire of someone lending107 money with the base
expectation of interest and of harming his neighbour: there is nothing
of this in the case of one who is forced to lend. For he does not want
to give money in loan to the prince and obtain interest therefrom
while impairing the dutiful conduct owed to his neighbour. He
therefore does not want to sin by entering into a contract of lending
money at interest, but is forced by the prince to lend money against
his will. He can therefore without transgressing or incurring censure
accept the price for the use of his money in return for the money of
which he is unwillingly deprived. This is not the same as when he of
his own accord gave a loan on which interest was forbidden. So
Andreas Gail,108 following Vasquius and Dominicus Soto, clearly
defines the matter in his Practic. Observ. bk. 2 c.5 n.17 and 18, and
he cites D.12.1.4, calling it remarkable.
Franciscus Hotman109 (Disp. De foenore vol 1, c.1 in his Opera,
p.794 col.2) is of the opinion that the same applies if an heir or a
guardian or a father-in-law has used the money of, respectively, his
legatee or his ward or his son-in-law, resulting in loss to the creditor.
The reason Hotman gives is that in such a case the creditor is
requesting the use of his own money, which the debtor has held
106
107
108
109
Probably Pope Calixtus III (1168 - 1178).
The context seems to require the meaning ‘lend’ for mutuare / mutuari, which in
classical Latin and also in the CJC means ‘borrow’. I find support for my
interpretation in Niermeijer and especially Migne.
Andreas von Gail, German jurist (1526 -1587).
Hotomannus (see n. 60).
Chapter XII
89
against his will. But what then if a moneylender by giving a loan
willingly transfers the thing and its use to the ownership of the
debtor? To this Hotman replies that [the creditor] cannot complain
that the debtor is still using his money against his will.
Yet Hotman surprisingly still maintains (Disput. De usuris c.6
p.769 tom. I) that if someone stipulates interest in a contract of loan
[there are two possibilities]:
whenever [a creditor] seeks and takes an opportunity to make profit
from the bare money which he gives in loan to another, he is properly
called a moneylender, and strives as it were to take the direct
‘offspring’ from the very substance of the coins themselves, and that is
the gain of which not only Aristotle but all good men vigorously
disapprove;
but whenever he does not have the intention to lend at interest (as the
one of whom Ulpian speaks in D. 12.1.4) and you who wish to buy
property ask for money on loan, and if the creditor were to ask interest
which would at least compensate for the loss which he would
accordingly experience while he is deprived of the use of his money,
then — since that interest does not seek the fruits of the money itself,
but rather, in a way, the use or at least the price and the estimated
value of that use — no true and intelligent appraiser of such things would
disapprove of that request.
But what if this debtor has the use of the money of the creditor
against his will? If you believe Hotman (Disput. De foenore c.1 p.794
col.2) there are plenty of answers to this among his predecessors: for
when a creditor gives a loan not for the reason of his own advantage
but in order to help the debtor, it is the same — so opines Hotman —
as when the debtor uses the creditor's money against his will,
obviously because we take ‘against his will’ here to mean not only
where someone has been forcibly compelled, but also where someone
does not seek or solicit [the opportunity to lend], but against his own
advantage and contrary to the interest of his estate, allows the loan.
For the guardian is not allowed to use the ward's money completely
against the latter's will (D.26.9), nor is the use of money left110 to the
legatee for a limited time completely against the will of the heir
(D.33.1.3): because it is sufficient that compensation be paid,
provided the creditor does not claim interest with a view to his own
gain and profit, but with a view to that loss which he has incurred in
being deprived of the use of his money: it is therefore said to be done
against the will of the creditor, since otherwise he would wish to
possess the thing solely for his own benefit.
From this it is clear that when a creditor claims interest in giving
a loan, even if he does not pursue the use of the money — as in a
110
reading relictus for relictum.
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Book 1
legacy or a fideicommissum — or an assessment of that use, when he
nonetheless seeks compensation for his loss and damages, he is
claiming something that lawfully belongs to him. On the other hand a
moneylender who seeks somebody to whom he can give money for the
sake of his own profit, and wants to be without the use of the money
and to concede that use to a second person, cannot complain about
loss suffered because he has been without the use of his money, nor
can he claim any compensation for such loss. And indeed this
difference must carefully be noted and weighed according to its
inherent importance, based on D.12.1.4: for the motive of the one
who with the intention and purpose of lending at interest seeks an
opportunity to give money in loan is so despicable that a loan
entrusted by him is lost at his own risk and not at the risk of the
receiver.
So far Hotman. But he is talking nonsense. Ulpian definitely never
dreamt of the distinction which he and Gail try to base on Ulpian
D.12.1.4, nor did he even think, as Hotman states, that the motive of
one who seeks the opportunity to give money in loan with the
intention of taking interest is despicable; much less did he wish this
to be so despicable that a loan entrusted by that lender who has the
intention of receiving interest, should be at his risk alone and not also
at that of the recipient. He merely said111 ‘If someone has neither a
reason nor the intention of lending at interest and you who want to
buy an estate ask him for money in loan, and you do not want to incur
a debt under the name of money loaned before you have bought the
estate, and the creditor accordingly — because he by chance needs to
go on a journey — deposits this same amount of money with you with
the intention that once you buy you would be under an obligation in
terms of money loaned, then this deposit is at the risk of the one who
incurred the debt.’
This is excellent reasoning, for someone who did not have a reason
or the intention to lend at interest deposited money for the sole use
of a depositary,112 which use was not to be taken up immediately but
when it seemed fit to him, the estate having then been bought. But
although the risk of the object deposited lies with the one who
deposits when he has a reason to deposit for the sake of his own
benefit, as commonly happens, yet in this case the deposit is at the
risk of the depositary, for someone who deposits without the motive
or intention to lend out the deposited money at interest cannot be
understood to have had the motive or intention to deposit it with a
view to his own benefit but only to the benefit of the depositary. So
neither Hotman nor Gail should have inferred from Ulpian in D.12.1.4
111
112
Here D.12.1.4 is quoted.
depositarius can mean both (a) one who receives a deposit and (b) one who
makes a deposit (see L&S, OLD and Souter).
Chapter XII
91
a distinction, or something to be despised, which Ulpian himself did
not see.
And if you consider this carefully, what reason is there why the
interest of one who did not have the intention to lend at interest
should appear to be more just or less despicable, than that of one who
did have such an intention? On the contrary, why should he who had
the intention to lend at interest and immediately gave the money at
interest to the one asking for it, not be preferred above him who did
not have such intention, and albeit that he did give at interest, did
not do so before he had long and urgently been asked? For that first
man was willing to help himself and another person with money
loaned at a respectable price, and he showed himself prepared to do
so of his own accord, which is consequential to the law of the bond of
human fellowship.
On the other hand that second man was unwilling to help another,
not even subject to interest, although he was bound by the ius
gentium, but he had to be harassed for a long time and urgently not
only with that honourable and customary profit but also with
entreaties before he agreed. But also that part of the debate in which
the creditor is defined as both willing and unwilling is so clearly selfcontradictory that the vacillating opinion is clearly not based on
reason, which is always constant, but on error. Or what statement
could be more contradictory, even absurd, than that a creditor
willingly enters on a contract and yet is described as unwilling for no
other reason than that he is induced to enter on the contract at the
request and persuasion of the debtor, even though the creditor did
not previously have the motive or the intention to contract?
But it is difficult to let a mind which is in the grip of an
unreasonable belief recognise the truth.
Book 2
Chapter I
The system of interest payment in ancient times
[Summary]
The old system of interest mostly required monthly and sometimes
annual payment. What the very learned gentlemen have said about
deferment from the Kalends to the Ides which was usually granted,
is not true, nor did Horace or Cicero think so. An ancient inscription
is amended, and a conjecture, for what it may be worth, made about
its meaning.
*
*
*
In the previous book I examined the nature of interest-bearing loans
or interest, and at the same time whether it can be accepted legally.
In this following one I shall set a boundary and a limit, for that will
ultimately determine whether the matter under discussion is
honourable or disgraceful. But first I shall touch on the ancient system
of promising to pay interest.
The oral contract for interest usually is made not from year to
year but from month to month. Paul mentions it in D.12.1.40 and
D.16.3.26.1, and Pomponian in D.45.1.90. And not only these
authorities, but also Ambrose, writing in De Tobia c.12:113 ‘The
113
par.42.
95
96
Book 2
Kalends114 arrive and the principal produces 1%. As the months come
one by one, interest is generated’, and further in chapter 3 [par.10]
in these words: ‘And he who says he will assist in the total amount
nevertheless exacts interest: “On the Kalends” he says “you will pay
interest: in the meantime I do not require the loan if you do not have
the means to repay it.”’ To Ambrose can be added Horace Epode 2
v.70 and Satire 1.3 [v.87.] Further examples could be added.
But this is a well-known matter. Likewise it is well-known that
from this is derived the name Kalendarium for the book in which the
interest is written up which has to be claimed on each successive
Kalendae (see Seneca de Beneficiis 7.10);115 the phrase ‘to employ
the Kalendarium’ for ‘to employ foenus’ (exercere foenus) is found in
D.32.41.6, or ‘to make entries’ (nomina facere) in D.32.64, and
likewise the phrase ‘to put a slave in charge of the kalendarium’ is
found in D.12.1.41.
I may add that Kalendaria of this nature were used not only by
private citizens but also by states, as confirmed by Alexander in
C.4.31.2[3]. Hence curatorship of the Kalendarium is, like the office
of quaestor, counted among personal public services in D.50.4.18.2;
and Papirius Justus notes in D.50.8.9.7[8.12] that the curator of the
Kalendarium was usually appointed after an official inquiry [into the
candidate's abilities]. Although it appears from the following
inscription (Gruter p.446 Inscr. 7)116 that he was also appointed by
the Emperor:
TO PUBLIUS OTACILIUS RUFUS, SON OF LUCIUS, OF THE PALATINE TRIBUS,
PATRICIAN, QUATTUORVIR IURE DICUNDO,117 DUOVIR QUINQENNALIS,118
LIFELONG PRIEST OF THE DEIFIED HADRIAN, HONOURED BY THE LATTER
WITH EQUESTRIAN STATUS, ELECTED BY THE DEIFIED [ANTONINUS] PIUS
AS CURATOR OF THE KALENDARIUM OF THE COMMUNITY OF AECULANUM,
PATRON OF THE TOWN ...119
What is the relevance of these arguments? Of course they help us to
understand that the entries of interest refer to monthly, not annual
payments. Yet I am not unaware that interest owed on successive
Kalends were not necessarily paid on their particular Kalends, but
have often been paid all together on one specific day in one year. At
least that is what I understand Constantine to mean when he says the
following on interest owed to the state (C.11.33.2):
114
115
116
117
118
119
The Kalends were the first day of the month, while the Ides fell on the 13th day,
except for March, May, July and October, when they fell on the 15th day.
This reference to Kalendarium is not really relevant in the present context.
CIL X.416 (late 2nd century).
i.e. one of the four chief magistrates in a municipium.
i.e. one of the two municipal censores, appointed for five years.
The full inscription continues for a further three lines.
Chapter I
97
In the case of those surviving children of whom you have established that
their assets are undiminished, or whose heirs still possess their
inheritance unimpaired, the principal due to the state will have to
continue; in such a manner, however, that they pay the yearly interests
each on their specified dates.
The following inscription on marble also supports this (Gruter p.175,
Inscr.4):120
... IN ADDITION TO THIS HE HAS GIVEN TO THE MUNICIPAL CHEST OF THE
GUILD [OF FIREMEN]121 FROM HIS OWN POCKET 5 000 DENARII, SO THAT
FROM THE MONTHLY ONE PER CENT INTEREST ON THAT AMOUNT, WHICH
YIELDS 600 DENARII PER YEAR, [THIS SUM] MAY BE PAID OUT FROM THE
CHEST ON THE 23RD OF SEPTEMBER,122 THE BIRTHDAY OF THE DEIFIED
AUGUSTUS
It is said that five thousand denarii were given to the Guild of
Centonarii by Lucius Sextilius Seleucus, and it is said that this sum
annually realises six hundred denarii from its 12% p.a. interest: that
is to say twelve denarii from every hundred denarii annually, or one
denarius for each month. So interest which was owed per month was
not necessarily paid every single month, but often the total interest
of one year was paid in a single payment at the end of that year. And
hence it sometimes happened that the stipulation of interest was
indeed not formulated for each consecutive month, but for each
consecutive year (C.4.32.26), often with a penalty added if the debtor
had not paid the interest in a particular year — an example of this is
found in D.22.1.17.
It was also customary that if a debtor failed to pay the monthly
interest for a full year, the creditor would — the law permitting —
stipulate compound interest (anatocismus), as I shall show in Chapter
XI below. But if some moneylenders were more severe yet did not
want compound interest, they took care that interest be paid to them
on every consecutive Kalends, for on that day it was owed and could
be claimed: and that they made use of that right is established by the
reasons adduced above, and also by the words of Seneca in De
Beneficiis I.2.3: ‘Nobody writes up his benefactions in a debt-book, or
calls up his interest on them on a set day and a set hour, like a greedy
tax-collector.’ But in drawing up a contract of an interest-bearing
loan many also used to take care that they stipulated higher interest
if the interest promised for an appointed day had not been paid on
that day, or another day, say after three months (D.22.1.9.pr.1, also
11 - 12; D.20.1.1.3).
120
121
122
CIL VI.2.9254 (found near the theatre of Marcellus in Rome).
From the heading of this inscription (the first six lines are omitted by Noodt) it is
clear that the reference is to the collegium centonariorum (‘firemen’).
Gruter (and the CIL) read VIIII KAL.OCT. — Noodt's error of VIII would make the
Emperor Augustus one day younger than he actually was.
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Book 2
If that is true I fear that I cannot agree with Jacobus Cujacius in
his interpretation of D.12.1.41 (Tract.8. ad African.), nor with
Laevinus Torrentius on Horace [Epodes 2 v.70], or with Petrus
Pithoeus (Adversar. lib.2 c.4); or Paul Manutius and Ausonius Popma
(on Cicero, ad Atticum. lib.14 ep. 20) and others of excellent intellect
and learning, when they offer the opinion that the stipulation of
interest had indeed been made for the Kalends, but postponement
was then granted to the debtor up to the Ides, and that eventually the
creditors usually arranged that what they had loaned at interest for
the Kalends they would receive and recover on the Ides.
[And with this I disagree] since it exists nowhere, and the contrary
is proved by the examples given above.
Nor does Cicero (in Catilinam 1.6[6]) support them when he says:
‘I omit mention of the collapse of your fortunes which you will feel
threatening you fully on the next Ides.’
For what if Catiline had received the interest-bearing money on
the Ides and promised repayment on the Ides? Because although
money was usually given and called in on the Kalends, yet nothing
forbade it also being called in on other days, for example on the Ides,
if circumstances allowed. There is an example of this in Scaevola's
contribution to D.46.3.89.2.
So nothing that has a bearing on this usage can be elicited from
that passage of Cicero, even though he refers to the collapse of
Catiline's fortunes, which were fearfully to be expected on the next
Ides.
The same is to be said of Horace Epodes 2 [vv. 67 – 70]:
Having said this, the moneylender Alphius,
on the point of beginning a farmer's life,
called in all his money on the Ides
and is seeking to invest it again on the Kalends.
Horace is only pointing out that Alphius the moneylender, who had on
the recommendation of Horace decided on life in the country,
changed his mind, and when he was expected to leave for the country,
contrary to expectation, called in all the interest owed to him from
the Kalends, and when this had been completed on the Ides he then
no longer contemplated a life on the farm but rather sought the
opportunity of investing his money again by lending at interest on the
following Kalends, to avoid its being unproductive, and for this there
can be no more persuasive argument than the following inscription in
Gruter p.478 Inscr. 9:123
123
CIL 2.4468.
Chapter I
99
TO LUCIUS VALERIUS OF FAVENTIA, SON OF LUCIUS, OF THE GALERIAN
TRIBE, EX-DUOVIR, WHO BOUGHT UP GRAIN SUPPLIES AND [THEREWITH]
HELPED THE COMMON PEOPLE, AND ALSO ON ACCOUNT OF OTHER
MERITORIOUS ACTS OF HIS, THE TWO GUILDS OF THE KALENDARII AND
THE IDUARII124 ERECTED THIS [MONUMENT] TO THEIR HIGHLY ESTEEMED
FELLOW-CITIZEN
This is how Gruter published it, but incorrectly. Read QUIANNONA,
that is QUIA ANNONA, with a double letter A. The result is that there
are two reasons for erecting the monument: the first is ‘because
Lucius Valerius Faventinus helped the masses by buying up grain
supplies for them’; the second is ‘also on account of other meritorious
deeds.’ Whatever the case may be, the distinguished Petrus Pithoeus
(Adversar. c.4) thinks that in this inscription the people who invested
public money in interest-bearing loans were called ‘Kalendarii’, and
those who called it in, ‘Iduarii’. And what he says about the Kalendarii
is not inconsistent with the truth, but regarding his statement about
the Iduarii I need proof, for it simply does not exist. And yet, I also do
not understand what the two Iduaria guilds125 are. But if there were
room for a suggestion in such an obscure matter, then those guilds
could perhaps — since Faventinus is praised especially for helping the
masses with the supply of grain — appear to be the guilds which in a
municipal town were in charge of the money for the feeding of the
infirm elderly members of the masses, or of supplying grain to the
populace.
The following inscription in Gruter p. 386126 mentions these
duties:
TO LUCIUS CASURIUS SPECULATOR, SON OF LUCIUS, OF THE CLUSTUMINE
TRIBUS, AEDILE, QUATTUORVIR IURE DICUNDO, QUAESTOR OF THE
PUBLIC TREASURY AND OF THE FUNDS FOR PROVISIONS [TO THE POOR],
PROTECTOR OF THE COMMUNITY, CURATOR OF THE GRAIN SUPPLY
PROVIDED TO THE PEOPLE
Alexander also refers to this when he says (C.4.31.3):
Regarding that which you admit owing to the state, the official
competent to examine the matter will order that you be compensated in
respect of what is in turn owed to you by the state, on condition that
you are not a debtor in respect of a recorded debt, or of taxes, or money
for public corn, or oil, or tributes, or sustenance, or that which is in the
service of statutory expenses, or a bequest to the state.
124
125
126
This is my conjecture. As Mommsen suggests, these were guilds which held their
meetings monthly on the Kalends and the Ides respectively.
Noodt may be in error, taking DUO as qualifying only IDUARIA: see my conjecture
above.
Gruter says that the inscription was found ‘ad primum lapidem ab Aemilia’, but
whether it is taken up in the CIL is uncertain.
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It is however not clear why those guilds are called Iduaria. And on the
other hand the Codex Theodosianus (de Curatoribus Kalendarii 2)
mentions ‘both the oil and corn treasury of the Kalendarii’, of which
the accounts of debts were rejected not long before in a speech sent
to the Senate. But that imperial response concerned the city of Rome.
As Jacobus Gothofredus observed there, when an ancient inscription
pertains to some municipal town in which there was another or the
same name for one and the same thing, who could affirm or deny it in
view of such a great silence of the ancients?
Chapter II
Different terms used for Roman interest rates
[Summary]
On different terms for usurae. What a centesima usura is, and why it
is so called. Sometimes it is named usura assis. The reason for this.
The clever and acceptable interpretation by Salmasius of a certain
passage in Pliny. The fractions of an assis usura are smaller usurae.
The value of a centesima at the time of Justinian and also later.
*
*
*
From what I have so far said about the ancient system of interest it
will not be difficult to understand the different terms used for it,127
whether we talk about centesimae [‘hundredth parts’] or lower
interest.
We accept that the illustrious Hermolaus Barbarus was the first to
conclude from Columella (De re rustica bk. 3.3) — and after him
Antonius Augustinus and other most erudite scholars also agreed —
that with the term centesima or centesima usura is meant a one
hundredth part of the principal to be paid every month as interest: as
when Publius Maevius stipulates a denarius for each hundred denarii
in thirty days (the example is taken from Paul in D.12.1.40).
127
see Appendix on technical monetary and financial terms in this chapter.
101
102
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One thing must be noted here: when the Ancients say centesima
it is not an unusual nor an unabridged term, no more than it is so when
they say centesima in its commercial sense, or vicesima [‘a
twentieth’]128 when referring to inheritance tax. Both of these are
frequently mentioned, and in both something more must be supplied,
so that the unabridged phrase would be centesima venalium pars [‘a
hundredth part of the sale price’] and vicesima hereditatum pars [‘a
twentieth part of inheritances’], to be paid under the heading
vectigal [‘tax’]. And this was observed by that most excellent man
Johannes Fredericus Gronovius in his brilliant work De pecunia vetere
bk. 3.13.
What then if we were to say not simply centesima but usura
centesima? Even this is not yet the complete phrase (even though it
seems to be so to the Most Honourable Claudius Salmasius in his De
modo usurarum ch.6 p.227 ff.)
For since interest is the return which is received for the use of
money, I ask you: what sense would it have for anyone to say
centesima usura, or centesimus reditus if he does not imply
something further? That is why I also here agree with Gronovius when
that honourable gentleman reckons that the phrase is abridged, and
in order to be complete must be filled out with the words centesima
sortis portio usura [‘a hundredth portion of the principal as interest’]
or even centesima sortis portio usurae nomine, singulis mensibus
pendenda [‘a hundredth portion of the principal to be paid monthly,
under the heading interest’].
And there is no lack of supportive arguments, as shown by the
following passage from Ambrose's De Tobia, and since the honourable
scholar did not do so, I quote the words of Ambrose (Ch.19):
This money129 bears interest: not in order to bear a hundredth portion
(centesima portio) of that which you have given, but a hundredfold fruit
(centuplus fructus).
Ambrose clearly means that the word centesima does not imply
centesima usura [‘a hundredth interest’], as Salmasius said, but a
hundredth part of that which the creditor has loaned, to be paid
monthly as interest: for that is what Ambrose intended, and it is also
clear from chapter 12 [par. 42] of the same book, where he says: ‘The
Kalends arrive, and the principal bears a hundredth (centesima); the
months arrive one by one and interest is generated.’
128
129
i.e.five per cent.
In par.65, Ambrose here uses the word pecunia metaphorically, for a type of
spiritual capital.
Chapter II
103
Harmenopulus agrees (Promptuar. bk. 3 tit. 7) in the following
words:
Centesima interest is when within a whole year twelve coins are paid for
every hundred, because of the fact that for every hundred coins one coin
is given every month, and if this is put together with the hundred as a
whole, it has a ratio of one hundredth (centesima). That is why interest
of this kind was in law called centesima.
Interest is therefore called centesima because it gives the creditor a
hundredth part of the principal every month, that is a single coin per
month from a hundred coins, or twelve coins annually. Take for
example the inscription from Gruter p.175 which I quoted in the
previous chapter, the six hundred denarii per annum from the five
thousand denarii. As a result these centesimae in the hundredth
month, that is in a period of eight years (with four months added),
equal the principal.
Sidonius Apollinaris (Epist. bk.4.24) calls this period bilustre [‘ten
years’] as a round number, in the following words:
as is shown in the drawing up of a promissory note, the moneylender is
guaranteed a centesima which when drawn out over a period of ten
years brings the sum of the principal to double the original amount.
Sidonius here calls a period of four years a lustrum, although a
lustrum is actually five years, because he uses the term lustrum for
what is actually an olympiad (olympias), as the ancient authors often
did. But an olympiad is limited to four years; and it is not necessary
for the fifth year also to have passed completely, but it is enough once
it has begun. This Andreas Alciatus rightly noted in his Dispunct. bk.
3 ch.1, and somewhat more fully Josephus Scaliger (De emendatione
temporis bk.5 p.482), and likewise Eduardus Simfonius (Chronic
Catholic. Part 3, ad A.M. 3229, p.41). Therefore Jacobus Sirmondus
and Johannes Savaro (Notis, ad Sidonium) as well as Jacobus Cujacius
(ad Novell.160) are in error when they explain tempus bilustre in
Sidonius as a ten year period, and that hereby the sum of the principal
is not equalled but surpassed, but that Sidonius had not made
allowance for a sum exceeding double the amount [of the principal],
because he knew that common interest above double the amount
could not be owed nor demanded.
A further credible point handed down by the very learned
gentlemen was that the centesima was also called by another name,
viz. the usura assis [‘usura of an as’], based on the oldest money used
by the Roman people: this money was the as libralis, or one pound of
bronze which was initially unstamped, but later imprinted as decreed
by Servius Tullius, at least up to the first Punic War: for then it was
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officially decided that asses sextantarii130 be coined, as the elder
Pliny relates (Nat.Hist.33.13), although Festus writes in his
explanation of the word sextantarii asses that this was done during
the second Punic War. Harduinus, a scrupulous and learned scholar,
draws attention to the error131 in his commentary on Pliny.
Previously, therefore, since only the as libralis132 was in use, if
someone when lending at interest a hundred asses stipulated
centesima, he stipulated one as per month, for these were a
hundredth part of the principal.
But if he did not want centesimae to be paid to him, but lower
interest, he could not stipulate in any other way than as parts of an
as, because the populace used no other monetary unit than that.
There you have the reason for the origin of the term assis usura.
You ask me to clarify that terminology. The words partes
centesimae [‘hundredth parts’] or minores usurae [‘lower interest’]
provide it, for they imply nothing else than the division of an as or a
libra. Indeed, the Greek scholiast (Basilic. Bk.38 tit. 17 ad C.5.56.2,
tom.5 p.189) says ‘They divide the centesima into twelve unciae
[‘ounces’]; and just as one reads of a tertia centesimae pars [‘a third
part of a centesima’] (D.22.1.17; C.4.32.26 par.2; C.5.12.31.2), and
of an usura ex quarta centesimae parte [‘interest based on a fourth
part of a centesima’) (C.3.31.12 par.1); and of a dimidia centesimae
pars [‘half a part of a centesima’], likewise a bes centesimae [‘twothirds of a centesima’] (C.4.32.26.2), so one also reads of usurae
unciae [‘one-twelfth interest’] (D.26.7.47.4), and of quadrantes
(usurae) [‘a fourth part’] (D.31.1.24.4), and of trientes (usurae) [‘one
third’] (Cicero ad Att.4.15.7),133 (D.26.7.7.10), and of quincunces
(usurae) [‘five twelfths’] in Persius 5v.149, D.22.1.17 and D.46.102.3,
and of semisses (usurae) [‘halves’] (Pliny Nat. Hist. 14.4.6.56 and
D.46.102.3), and of besses (usurae) [‘two-thirds’] (Cicero ad
Att.IV.15.7), and of deunces (usurae) [‘eleven twelfths’] (Persius
Sat.5 v.150.)
What are all these other than names of fractions of an assis usura?
From this Modestinus derived the adjective semissales [‘of or
belonging to half an as’] in D.50.12.10.
Yet the term assis usura is not found anywhere, except for
Salmasius' restoration of it in Pliny (Ep.10.54):134
130
131
132
133
134
i.e. worth only one sixth part of the former as.
The error was Pliny's.
The Latin text incorrectly has liberalis.
Cicero has ‘faenus ex triente’.
Not Ep.10.62. The quotation is from a letter of Pliny to the Emperor Trajan.
Chapter II
105
My lord, through your foresight and my effort the state's money has been
and is still being called in. But I am afraid that it may now be
uninvested, for there is no or at best only a rare opportunity to purchase
landed property, and no one is to be found who is prepared to borrow
from the state, especially at the rate of twelve per cent (duodenis
assibus), the rate at which private loans can be had.
This is the usual reading, but Salamasius writes usuris assibus,
cleverly and correctly, although I would simply prefer praesertim
assibus, quanti [‘especially at asses, the rate at which ...’] without
adding the word usuris, as in Cicero (ad Fam.5.6.2), where he says ‘In
any case135 there is plenty of money to be borrowed at six per cent
per annum’, using the word semissibus for semissibus usuris. Yet I
would not deny that the term semisses usurae is used frequently and
correctly (e.g. D.50.12.10;136 D.46.3.102.3; D.17.1.34).
But to take this matter further:
When a centesima or assis usura renders one coin every month from [a
loan of] one hundred coins, that is to say twelve coins every year, it is
clear that the interest is an uncia (‘one twelfth’) when a hundred coins
bring forth a twelfth part of a coin per month, that is to say one coin per
year;
the interest is sextans [‘one sixth’] when a hundred coins produce a
sixth part of a coin per month, that is to say two coins per year;
the interest is quadrans [‘one fourth’] when a hundred coins acquire a
fourth part of a coin per month, that is to say three coins per year, as
Theophilus correctly observes in his note on Inst.4.6.33;
the interest is triens [‘one third’] when a hundred coins deliver a third
part of a coin per month, that is to say four coins per year. This is the
calculation of the Greek scholiast in his note on D.35.2.3.2 (Basilic.
lib.41 tit.5 tom.5.p.410);
the interest is quincunx [‘one fifth’] when a hundred coins deliver one
third plus one twelfth137 per month, that is to say five coins per year, as
is well said by the Greek scholiast on C.5.56.2 (in Basilic.lib.38 tit.17
p.188, tom.5);
the interest is semessis [‘one half’] when a hundred coins bring forth
half a coin per month, that is to say six coins per year, as Theophilus
correctly notes (on Inst.4.6.33), and also Harmenopulus (Promptuar. bk.
3 tit.7 in scholio).
So at least it used to be formerly, but then the whole matter changed
somewhat, for a centesima increased by one half for a monthly
centesima, or half an ounce138 per year while yet retaining the name
centesima.
135
136
137
138
Reading omnino for Noodt's bonis(see Oxford Classical Text).
But Modestinus here uses the word semissales.
i.e. five twelfths.
i.e. 1/24 of an as.
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Book 2
Take this example: a hundred coins are given in loan, and on these
centesimae are owed [as interest]: after a full year not twelve coins
will be owed, as it used to be, but twelve and a half. Anianus (or
whoever else was the ancient interpreter of the Codex Theodosianus
de usuris 2) points this out, saying a centesima is when three
siliquae139 are paid for each solidus as interest. Now a siliqua is a
twenty fourth part of a solidus, as Isidore explains (bk.16 c.24).
Therefore, if a hundred solidi are lent at usura centesima, then after
a full year three siliquae per solidus gives a return of 300 siliquae for
a hundred solidi, that is to say twelve and a half solidi.
This is the calculation which Justinian seems to have followed in
Novell.34 c.1, and Leo in his Novell.83. Unless you were to prefer the
view of Antonius Contius (Subseciv. Lection. c.2 n.8), namely that
when the interpreter of the Codex Theodosianus calculated three
siliquae for a solidus annually, he expressed centesima usura in round
numbers rather than precisely, in the same way that Justinian spoke
of one siliqua per annum for usura triens, I do not agree, since after
Justinian the centesima increased, as Harmenopulus attests in
Promptuar. lib.3, c.7 scholio, in these words:
A third of a centesima is indeed when four golden coins per pound are
paid annually in an interest-bearing loan; half a centesima when six
coins are paid, and so a quarter of a centesima when three coins are
paid out for each pound, if indeed the centesima usura exacts twelve
coins for every pound; otherwise how would it happen that interest is
named centesima, although a pound contains not a hundred but only
seventy-two gold coins? From this you will understand that a centesima
signifies an amount which can be divided into and reduced to twelve
parts. But it is a given fact that under the term centesima is understood
that which comprises twelve parts, because of the fact that in ancient
times those who had a hundred things of any kind contributed twelve of
these to the community. And this is indeed found to be the case amongst
the men of old. But we also speak of these things as we see them being
done at present.
139
A small silver coin valuing one twenty-fourth of a gold solidus.
Chapter III
Maximum rates recoverable in Roman Law
[Summary]
Before Justinian there was a fixed limit for interest, and the parties
concerned so agreed it could climb to a full 12% p.a. (centesima).
When once the centesima was entered in the stipulation, a judge did
not have the right to regulate it according to local custom. The limit
of interest could not exceed a centesima: an interest of a centesima
is said to be the highest legitimate rate. Which rates of interest are
moderate, courteous, temperate and the lowest. The approach of
Capitolinus and Papinian (D.20.1) explained.
*
*
*
I have now explained the terminology regarding interest: let us now
look at its limit, for that is referred to in D.22.1.9 and 29, C.4.32.20,
and D.13.7.11.3.
It is my opinion regarding the limit that before Justinian nearly
anyone was allowed to stipulate an usura centesima (i.e. twelve per
cent per annum), except that according to Lampridius (in his Life of
Alexander Severus c.26), Alexander Severus ‘reduced the interest of
moneylenders to four per cent (trientes) interest, also being mindful
of poor people’. But this decree of Alexander, for what it is worth (if
it did indeed exist at some time, which I can hardly believe) appears
not to have been put into practice owing to the strength of
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convention; indeed there is not the slightest trace of it in the whole
of the Corpus Juris, and what I have said is true, namely that before
Justinian anyone was allowed to stipulate twelve per cent interest.
Proof of this is provided by Justinian in C. 7.54.2 and 3, in which he
says that in his decree (which is found in C.4.32.26 par 1) he lowered
the interest to under twelve per cent, and in saying this he shows that
interest could previously rise up to twelve per cent. And not only
Justinian proves this: the emperors Valentinian, Arcadius and
Theodosian (C.Th. de usuris 2) bear more abundant witness that
‘twelve per cent was allowed by law.’ I add to them also
Chrysostomus, for he alludes to this in his homily (57 tom.1 p507) on
Matthew 17, when he says ‘This gives a return of one hundredth, but
that gives a return of hundredfold and eternal life.’
Indeed, already Pliny writes to Trajan (Ep.10.54)140 that he is
afraid that public money which has been called in may lie uninvested,
and gives as reason for his fear that ‘no one is to be found who is
prepared to borrow from the State, especially at [the rate of] asses,
the rate at which private loans can be had’; for assibus alone should
be read here, although the usual reading is duodenis assibus, as I
pointed out above.
At the time of Trajan,141 therefore, private people were allowed
to lend money at interest of asses or centesimae [i.e. twelve per
cent].
The same Pliny writes (Ep. 9.28) ‘So send [the letters] to me at
the earliest opportunity, also adding interest which I shall calculate
(could I be more frugal?) at the rate of centesimae.’
Our friend Paul, too, reports (D.12.1.40) that a written bond was
read out in the auditorium of Aemilius Papinianus, commander of the
imperial body-guard, in which interest of twelve per cent had been
promised on account of default, in the following form:
If on the date written above the total sum has not been given, paid or
satisfactorily done under that account to Publius Maevius or to him
whom that matter shall concern, I shall thereafter pay as much more, by
way of penalty, as Publius Maevius has stipulated that one denarius per
hundred denarii be given per month. So have I, Lucius Titius, pledged.
And not this alone, but Paul furthermore states that Papinianus
dispensed justice on that written bond after a judicial investigation.
Sidonius Apollinaris also attests that this was the law in Epist.
bk.4.24, lest anybody may think that when centesimae had been
deducted as stipulated, it was in accordance with judicial discretion
140
141
Noodt's reference is again wrong. See n.134.
Roman emperor 98 - 117 A.D.
Chapter III
109
to rule on the limit of interest in equity according the custom of the
region; for this is not so, although on the basis of D.22.1.1 it appears
to some to be so, but this is not what that passage implies, for it does
not speak of the stipulation of interest, which is now under discussion,
but of interest to be paid in accordance with judicial discretion in
bona fide actions, of which I shall speak a little later.
But in the same way that interest could increase to twelve per
cent, so too it could not exceed this. Indeed, Cicero also tells that he
proposed that limit in a traditionary edict142 when he was governor of
Cilicia (ad Atticum.5.21):
Meanwhile, although I had in my traditionary edict held that I would
observe an interest rate of twelve per cent per year with annual
compound interest, that man [Scaptius] asked for forty-eight per cent
p.a. on the strength of the terms of his bond. ‘What are you saying?’ I
said to him. ‘Can I act contrary to my own edict?’
So Cicero. Before him Lucullus had made a similar statement, if we
can believe Plutarch in his Life of Lucullus (p.504 tom. 1):
When Lucullus discovered those pests143 in the towns, he quickly freed
the afflicted from all of them. Firstly he decreed that twelve per cent
and nothing more be taken. Secondly he struck off all interest exceeding
the principal.
Paul points at the same limit of interest when he writes (Sent. bk.2,
tit.14 par.1) as follows: ‘Interest paid above twelve per cent
diminishes the principal, and can, when the principal has been spent,
be reclaimed.’
Paul shows that interest can be demanded and paid to the limit of
twelve per cent:
no more than that is allowed, and if interest has been paid beyond that
limit, the principal decreases; when this principal has also been paid, it
can be reclaimed.
To Paul I add Diocletian and Maximinian in C.4.2.8. What do they say?
The following:
If instead of a monetary loan which you have requested from your
creditor, you have received silver or draught-animals or other things
valuated with the agreement of both parties, and gold has been given as
security, then even though you have promised the stipulating creditor
more than twelve per cent, nonetheless only the principal agreed upon
in the valuation and what is legitimate under the heading 'interest' can
lawfully be asked.
142
143
edictum tralaticium, i.e. handed down, with alterations, from governor to
governor.
The reference is to tax-farmers and usurists.
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So the Haloandrine copy144 reads, and also the majority of the
manuscripts. Some other manuscripts have legitima [summa] tantum
petitur [‘only the legitimate sum ... can lawfully be asked’], or
legitima quantitas [‘the legitimate amount’]. But the first reading is
closer to the truth, as Russardus has already pointed out in his Notae
Marginales. But the meaning is that a creditor can claim back the
principal as valuated with the agreement of both parties, and in
addition also interest, but only such as is legitimate, that is to say
twelve per cent per annum.
Constantine makes the same case (C.Th. de usuris), arguing that
‘the creditor is forbidden to accept more than twelve per cent alone.’
The emperors Valentinian, Theodosian and Arcadius (C.Th.1.2),
indeed, express the wish that ‘whosoever in a situation of need has
elicited something more than the twelve per cent allowed by law,
must, being bound by an obligation involving a fourfold penalty,
without delay or respite immediately give back what he has taken.’
Therefore interest of up to twelve per cent per annum could be
promised and exacted, but no more than that.
It is indeed so that interest of twelve per cent is called
‘legitimate’ for the reason that it was so decided in civil law (C.4.2.8)
because there was no higher rate; therefore what is legitimate is
called ‘the maximum and the heaviest’, (D.26.7.7.4; C.5.51.3;
D.26.7.7.8 and 54; D.3.5.37 [38]) as the honourable Barnabas
Brissonius excellently observes (Select. Antiq. bk.3 ch.1).
On the other hand interest of six per cent is called ‘courteous’ and
‘moderate’ by Pliny (Nat.Hist. 14.4); that of five per cent is numbered
under the ‘lighter’ interest by Ulpian (D.26.7.10) and is called
‘temperate’ by Persius (Sat.5.149). Ulpian says the same of interest
of four per cent, while Capitolinus calls four per cent ‘the lowest’,145
(Antoninus Pius c.2), although not because it is the very lowest of all:
that is how the excellent Claudius Salmasius understood this passage
of Capitolinus (De modo usurarum c.2 p.286 ff), since the fact is that
three per cent and two per cent and one per cent are all lower, and
are so described by Ulpian in D.26.7.10 (and see D. 33.1.21 par 4).146
But Capitolinus calls [four per cent] ‘the lowest’ because that is
very low in comparison with twelve per cent or eleven per cent or
eight per cent. And this type of expression was customary amongst the
authors of old, where the superlative degree not necessarily indicates
144
145
146
i.e.Gregor Haloander's edition of the Codex (1501 - 1531).
minimae may also be rendered ‘extremely low’.
This passage is ascribed to Scaevola.
Chapter III
111
the very highest degree of comparison, but often no more than the
positive degree;147 this was observed by Sanctius (Minerva bk.2 ch.11)
and there, too, in his notes, by that man of the highest and
distinguished erudition Jacobus Perizonius, a friend and colleague of
mine over many years.
Furthermore, based on these interpretations Papinian can be
understood when he says the following in D.20.1.1.3:
By agreement it was decided that if interest was not paid on the
appointed day, the returns on the pledges would be made good with
interest up to the limit of legitimate interest. Although initially lower
rates were stipulated, it was decided that the agreement was
nevertheless not invalid since, with the lower rate not having been paid
on the appointed day, the legitimate higher rates could rightly be
promised to the stipulator.
For instance: a creditor stipulates lower interest for a specific date,
for example five per cent, or four per cent, and receives pledges as
security for the debt; then it is agreed that if the debtor fails to pay
the lower interest on the appointed day, the creditor could
compensate for the lost returns on the pledges up to the limit of
legitimate interest, which is the maximum interest of twelve per
cent, as I have said. The question arises whether the agreement is
valid, and Papinian says it is; and he adds the reason, namely that the
stipulation of legitimate, that is to say twelve per cent, interest is
valid if it is subject to the condition that the lower rates, namely five
per cent or four per cent, were not paid on the appointed day. So if
this is the case, it follows that an agreement formulated in the same
way would be valid. For although there would be no claim for interest
on the basis of a bare agreement (nudum pactum), there will
nonetheless be a withholding of either the pledges or their returns up
to the limit of legitimate, that is to say twelve per cent, interest.
147
i.e. the Latin superlative form often expresses merely a very high degree, and not
the highest (see n.145 ).
Chapter IV
Maximum rates recoverable in Roman Law (continued)
[Summary]
On the varying history of interest at the time of the Roman Republic,
and on the law by which its limit was defined.
*
*
*
But it is clear that the legitimate limit of interest was centesima [i.e.
twelve per cent p.a.], and that it was so called because that limit was
laid down by law, or by a decree of the senate, or by an imperial
enactment or by an edict — these are all included in the term ‘law’.
It is a difficult matter to speculate on the law under which the
limit of interest was first confined to within twelve per cent. I know
that some people take it back to the Twelve Tables148 because of the
following statement by Tacitus in Annals 6.16:
It was originally decreed in the Twelve Tables that no one was to exact
interest of more than an uncia [one per cent p.a.]149 when previously
the rate was manipulated by the whim of the wealthy.
148
149
The Duodecim Tabulae were compiled in 450 BC and are considered to be the
starting point of the development of Roman law.
There is some dispute as to what Tacitus really understood under foenus
unciarium: cp. Furneaux’s note ad loc. and Berger s.v. fenus unciarium.
112
Chapter IV
113
This is very wrong, for the unciarium foenus of Tacitus is not
twelve per cent per annum but one twelfth part of that, inasmuch as
the uncia in the unciarum foenus is one twelfth of a centesima, that
is to say an assis usura. In fact, the difference between an unciarium
foenus and a centesima usura is as great as the difference between
the heaviest and the lightest interest; for while an usura centesima
renders one hundredth part of one hundred denarii, or one denarius,
per month, and twelve denarii after a full year, on the other hand the
unciarium foenus on a hundred denarii renders one twelfth part of a
denarius per month, that is to say one denarius after a full year.
Therefore a centesima usura as limit cannot be attributed to the
Twelve Tables, the more so since that particular law did not last long,
having been decreed in 451 BC and already withdrawn at the time of
the revolt of Manlius,150 during which a debtor, according to Livy
6.14, called out that he ‘who fought in the army and restored the
household gods which had been destroyed, having fully repaid the
principal many times over, since the interest always swallowed up the
principal, had through his debt been overwhelmed by the interestbearing loan.’
Now how could it happen that this same man repaid the principal
many times over, since the interest always swallowed up the
principal, if by the law of the Twelve Tables the interest-bearing loan
was at that stage still one per cent per annum, that is to say the very
lightest? But this could very easily have happened if we can say that
that law had by then fallen into disuse, and that the maximum
interest replaced the minimum. And that this was indeed the case we
can deduce from the fact that Livy subsequently wrote (bk.7.16) that
during the consulship of Gaius Marcius and Gnaeus Manlius a measure
was proposed by Marcus Duilius and Lucius Maenius, tribunes of the
People, on foenus unciarium which was not welcomed by the
patricians, and that the People somewhat too covetously assented to
and voted for it. But Tacitus also asserts (in the passage referred to
above) that ‘subsequently by a bill put forward by the Tribunes,
borrowing151 was reduced to the rate of half an uncia.’ And that this
was done in 347 BC, that is to say in the consulship of Tiberius Manlius
and Gaius Plautius, is reported by Livy (7.27). Moreover, Tacitus says
(loc. cit.) ‘Finally borrowing to repay was forbidden’. This was
without doubt done in accordance with the Lex Genucia which
Genucius, tribune of the People, proposed to the People in 342 B.C.,
that is to say, in the consulship of Gaius Marcius Rutilus and Quintus
Servilius, as Livy reports in bk.7.42.
But the fraudulent moneylenders bypassed this law, and in 193
B.C., in the consulship of Lucius Cornelius Merula and Quintus
150
151
Marcus Manlius Capitolinus was executed app. 385 BC.
The borrowing of money to pay another debt.
114
Book 2
Minucius Thermus, this was exposed and curbed. Livy tells the story in
Bk. 35.7 in these words:
For another problem became pressing, namely that the citizens were
suffering under the interest-rate: and although greed had been
restrained by many laws on interest-rates, there was still a loophole for
fraud in that they transferred the entries on their accounts to allies who
were not bound by those laws, and in this way crushed the debtors with
unlimited interest. Now when a way was sought to resolve this, it was
decided that a day was to be fixed, which would be the next Feralia.152
The purpose of this was that those allies who after that day had loaned
money to Roman citizens would declare so, and that from that day
forward justice (ius) would be dispensed to the creditor under whatever
laws on loaned money the debtor wished; subsequently, after a vast
amount of debt incurred by means of this fraud had been revealed,
through declarations, Marcus Sempronius, tribune of the People, on the
authority of the patricians put a proposal to the People, and the People
agreed to it, with the result that the same law on loaned money applied
to allies and those who had Latin citizenship, as applied to Roman
citizens.
From these words we gather that through the lex Sempronia it was
brought about that, whereas previously only Roman citizens were
bound by the lex Genucia, Latin allies subsequently were also so
bound.
But even so the People could not obtain what they strove for,
either because the growth of capital was now no longer pursued under
the old name of foenus, which was prohibited by law, but under the
new name of usura or poena [‘penalty’] which was not prohibited by
law and not previously known, at least in that particular sense, as I
have stated elsewhere, or because debtors renounced the benefit of
that law in contracting foenus, since creditors were unwilling to lend
them money unless they undertook not to invoke the lex Genucia;
since it indeed seemed that debtors could rightfully do this (they were
after all entering an agreement concerning their own right and their
private advantage), it easily happened that neglect of the law
deluded the praetors. And I am not sure whether Tacitus points out
this, or something similar, when he eventually (Ann. 6.16) says ‘while
the frauds were met with numerous plebiscites, even after being
repeatedly suppressed they kept on cropping up again by means of
extraordinary stratagems.’
Appianus also touches on this in bk.1[54] of his Civil Wars, in the
following words:
At that same time (that is to say in 89 BC, when Gnaeus Pompeius Strabo
and Lucius Porcius Cato were consuls) an uprising occurred in the city as
152
The ‘festival of the dead’ on 17 or 21 February.
Chapter IV
115
a result of debt, since some people were exacting interest too harshly,
contrary to the provisions of the ancient laws: for it seems that those
Romans of old, as well as the Greeks, abhorred interest-bearing loans as
being a banking business burdensome to poor people and a source of
lawsuits and personal enmities; even the Persians disliked it as
something akin to fraud and deceit. But since interest-bearing loans had
already been accepted in ancient custom, the moneylenders demanded
it back as their lawful right. However, by giving war and sedition as
reason, the debtors deferred payment, and there were also those who
threatened those who were coercing them with a penalty. Then the
praetor Asellio, under whose jurisdiction this fell, having unsuccessfully
tried to reconcile the opposing parties, allowed those debtors to bring
an action under the laws, after he had reminded the judges — as one
does in a complex matter — of both the law and the custom. There and
then moneylenders, taking exception that mention was being made
anew of the old law, threw out the praetor.
For the rest, I think, while after the acceptance of interest, lending
at interest was once again being practised without limit and solely at
the whim of the wealthy, the praetors for the first time approved of
twelve per cent interest in their edicts, while the Senate rejected it.
Cicero certainly reports in ad Att. 5.21 that this was so in a provincial
and traditionary edict, and that he had followed this rule when he was
governor of Cilicia. And Plutarch attests to this concerning Lucullus in
his Life of Lucullus. Furthermore the ruling of the praetors appears to
have been confirmed by a decree of the Senate which that same
Cicero recalls in ad Att.5.21.13, saying ‘especially since a decree of
the Senate has recently been passed (after you left Rome, I think) in
the matter of creditors, that a general twelve per cent would be the
rate.’
There you have the beginning of the legitimate limit of twelve per
cent on interest — or at least that is how it seems to me: there are
others who attribute that limit to the Lex Gabinia, and believe that it
was that law which provided for a general interest-rate of twelve per
cent, and furthermore that by this law it was forbidden to administer
justice based on a promissory note in which interest higher than
twelve per cent was promised. They add to this that a penalty was laid
down in that law not only against moneylenders who took interest
higher than the legal limit, but also against debtors who paid interest
above the limit, and they claim that Cicero says this in the letter
quoted above.
But this is wrong, for it is not what Cicero means. He is saying that
under the Lex Gabinia no one could give money in loan to a Roman
governor subject to interest, and if he were to give it, no magistrate
could administer law on the basis of that promissory note. It also
seems that a penalty was in place not only against moneylenders who
received interest from provincials illegally, but also against the
provincials who paid it to them.
116
Book 2
I have explained the purport of the Lex Gabinia: now hear the
factual position to which Cicero refers. That factual position is as
follows: when the people of Salamis asked for a loan of money in
Rome and no one dared to lend it to them in conflict with the Lex
Gabinia, Scaptius and Matinius eventually undertook to give the
money at a rate of forty-eight per cent, but only if it would be paid
through the mediation of the Senate, under the Lex Gabinia. On the
authority of Brutus, with whom Scaptius and Matinius had strong
influence, a decree of the Senate was passed. In that decree it was
provided that that lending on interest (faeneratio) should not defraud
either the people of Salamis nor the moneylenders. Scaptius and
Matinius paid out the money, but then became aware that they would
be helped by this decree of the Senate only if the people of Salamis
paid back the principal together with the interest of their own free
will, but if they were to be unwilling and had to be compelled against
their will, the creditors would not at all be helped, because in terms
of the Lex Gabinia it was not only forbidden to give money at interest
to provincials in Rome and for them to accept it, but magistrates were
also prohibited from administering justice on the strength of such a
promissory note. Therefore on the authority of Brutus they obtained
another decree of the Senate by which this promissory note was
ordered to be of the same legal force as the promissory notes allowed
by law to anyone in a province: but by virtue of the traditionary edict
only twelve per cent per annum could be taken. Cicero was
accordingly free to uphold his Edict and not to delay the interest
mentioned in the promissory note.
From this it is clear that those very learned men are erring when
they ascribe the limit of twelve per cent to the Lex Gabinia, and
support their view by using that passage in Cicero, since neither is it
proved that the Lex Gabinia spoke of twelve per cent nor did Cicero
say so. And this has been shown very clearly by that excellent man
Johannes Fredericus Gronovius (Antexegesi 2 de centesim. &
unc.usur. par 36).
At least, that was the position in the free Republic, but it is very
likely that when it changed,153 this limit was also laid down in the
decrees of the emperors, as Papinian recalls in Ulpian's entry in
D.19.1.13.26, and also the emperor Philip in C.4.32.20.
153
The ‘free Republic’ ended in 27/24 BC when the Empire began.
Chapter V
Interest recoverable at judicial discretion
[Summary]
On the limit of interest which is paid out in accordance with judicial
discretion in bona fide actions. That limit is prescribed by the
principle of fairness and justice, and is mostly governed by the
custom of the region where the contract was drawn up: sometimes it
exceeds this and even reaches twelve per cent; the cases in which this
happens. D.17.1.10.3 is corrected, and the reading of Jacobus
Cujacius rejected. C.4.65.17 is explained, or rather emended.
*
*
*
The previous chapter dealt with interest to be paid on the strength of
an agreement. It now remains for us to take a look at interest owed
without an agreement in accordance with judicial discretion. On this
Papinian says the following (D.22.1.1):
When in a bona fide action a decision is made, the limit of interest is
determined at the discretion of the judge on the basis of the custom of
the region where the contract was drawn up, but then on condition that
it does not violate a law.
117
118
Book 2
(Papinian says legi offendere just as Ulpian says prospectui
offendere in D.8.2.15).154
Now it is the view of Papinian that in bona fide actions, although
no agreement is involved, interest is owed in accordance with judicial
discretion; however not purely at a judge’s discretion but also taking
into account the custom of the region in which the contract was drawn
up. And that it was thus decided in these cases is reported by Ulpian
(D.22.1.37), as also that the same law applies in the case of legacies
(D.30.39): yet only if it does not violate the law, as Papinian adds in
D.22.1.1 (for that addition is by him, although in view of C.4.32.26.1
the idea could have been regarded as that of Tribonian).
Papinian further points out that it was not in the power of the
judge any more than it was allowed in a stipulation that a rate of
twelve per cent be exceeded, because the law which confines interest
to the limit of twelve per cent must not be violated by either of those.
But will the judge necessarily go up to twelve per cent? I would
not easily say so, because even though the twelve per cent would be
legitimate, it was nevertheless considered ‘blood-thirsty’ if we take
note of Seneca (De Beneficiis 7.10.4); and not all the moneylenders
charged at that rate, but only the harshest, or at least the hardhearted ones, as at least Cicero opines in ad Atticum 6.1.6, followed
by Seneca in Epistulae Morales 118.2.
We shall say the same about eleven per cent, for these, too, are
called ‘greedy’ by Persius (Sat. 5v.150). But a judge in a bona fide
action is under instruction not to follow the maximum allowed by law
but to be benevolent and not to foster the greed of a creditor, but to
estimate in fairness and justice how much ought to be paid to him.
And Ulpian (D.17.1.12.9) is our source that this rule concerning
interest was made in the case of bona fide actions.
A judge will therefore award interest based on the custom of the
region (D.22.1.1 and 37). But at what rate? In D.26.7.7.10 Ulpian says
that when one deals with a direct155 action of guardianship the legal
norm is that the guardian (except in certain cases, about which more
will be said later on) should in accordance with the custom of the
province, pay their ward either five per cent, which Persius in Sat. 5
v.149 calls ‘modest’, or four per cent which to Capitolinus (Antoninus
Pius c.2) is minimal, that is to say the lowest, as I have shown above,
or any lighter interest frequently used in a province (D.26.7.7.10).
154
155
Noodt appears to be pointing out the unusual use of a dative with the normally
transitive verb offendere (‘to offend against a law’ and ‘to offend against a
view’).
an actio directa is normally the action of a depositor or mandator (See Berger
s.v.).
Chapter V
119
And in accordance with this the following principle enunciated by
Ulpian (D.2.14.7.5) is to be understood: ‘and if in an action on
guardianship it has been agreed that higher interest be paid than has
been decreed ...’.
This is the case in a direct action of guardianship. The same or
something similar applies in a contrary action,156 except if the
guardian has borrowed money at heavier rates of interest, or when he
received most profitable interest from his debtor and has exacted the
principal from him in order therewith to free his ward, for Ulpian
claims that in that case the interest which he himself pays, or which
he has been deprived of, falls under the contrary action (D. 27.4.3.1),
and that this was decreed for a contrary action of unauthorized
management of another's affairs and finally for bona fide actions
(D.22.1.37; D.17.1.12.9).
Therefore a judge in a bona fide action must never exceed a rate
of twelve per cent, but he must also not easily go as high as that, and
yet not always stop short below that rate. For there are cases in which
it has been decided by imperial decree that interest be owed which is
not lower, in accordance with the custom of the region, but is the
legitimate interest, that is to say the heaviest and very highest
allowed, namely twelve per cent. Such a case is when a guardian has
secretly turned over his ward's money to his own use (D.26.7.7.4), or
if he denies that he has the money and the praetor rules against him,
or if he defaulted on the deposit and the praetor has imposed the
legitimate interest on him. For if a threat of the praetor or something
similar has preceded, the judge who at some time investigates the
matter will follow the decree of the praetor (D.26.7.7.7 and 10). But
also if the guardian says that he does not have a certain amount for
the support of his wards, or if with a view to relieving his own burdens
he has imposed on his wards the necessity of accepting money in loan
at the legitimate rate of interest, he himself will be held to the
legitimate (D.26.7.7.10), that is the heaviest, rate of interest (loc.cit.
8), and likewise if he has received legitimate or twelve per cent
interest from his debtors. In all other cases he will pay interest in
accordance with the custom of the province — either five per cent or
four per cent, or whatever other lower rates are frequently used in
the province (D.26.7.7.10).
This is also the opinion of Tryphoninus in respect of a guardian
(D.3.5.38[37]), and not only in that case but, more fully discussed, in
the case of a municipal magistrate, if he has channelled public money
to his private use: for this man must also pay the maximum interest;
and he [Tryphoninus] adds that this was so decreed by the late
emperors, naturally because those men (since they had to display a
156
An actio contraria is normally the action of the depositee or the mandatory.
120
Book 2
trustworthiness which was untainted and to refrain from all
profiteering) are subjected to the maximum interest in the place of
some or other penalty, on account of their apparent abuse of the
liberty allowed them.
The same law applies in the case of an unauthorised
administrator,157 for this man, too, must display to the owner a
voluntary and certainly untainted trustworthiness, refraining from all
profiteering. And if he disregards this by channelling the owner's
money to his own use, he appears to abuse their liberty which his
administration offers. He is therefore rightly subjected to the
maximum interest in the place of some or other penalty.
Although Tryphoninus says (loc.cit. 38) that it is a different matter
if he already owed the money before he entered upon the
unauthorized management, because in that case he did not take the
money from the administration in bad faith, but received it from a
friend, so to speak. There is therefore initially no reason for blame;
and if he subsequently, although being in a position to do so, does not
pay, he is merely in default, and although he is therefore obligated to
pay interest, he is nevertheless not obligated to the maximum of
twelve per cent, but to the interest frequently used in the region,
following the example of the other debtors. But if he channeled the
owner's money to his own use after having entered upon the voluntary
administration of his friend's affairs, there is reason to censure him
right from the beginning, since he secretly transferred the benefit of
another person's money to himself under the guise of administration.
He therefore begins to be a debtor in bad faith, having abused the
liberty which he had, and therefore he is rightly subjected to the
heaviest interest in the place of some or other penalty.
The same view seems to be held in the case of one who
administers another's affairs under his authorisation (procurator) and
has channeled an owner's money to his own use, for the reasoning in
this case is similar to that in the above cases. Furthermore,
Tryphoninus includes this person among the rest when he writes as
follows (loc.cit. 38):
Since when someone channels to his own use the money of him whose
guardianship or whose affairs he administers, or when a municipal
magistrate so channels public money, he pays the maximum interest, as
was decreed by the deified emperors.
To this can be added what Ulpian clearly and fully points out
(provided it is read correctly) in D.17.1.10.3.
157
negotiorum gestor can also be rendered ‘voluntary agent without a mandate’ (cp.
G.H. s.v.)
Chapter V
121
These are his words:
If my procurator is in possession of my money, he will certainly in the
case of default pay me interest. But also if he has put out my money in
an interest-bearing loan and has received interest, we shall in
consequence say that he must pay whatever benefit he has received,
whether I gave him a mandate or not, because it is in accordance with
good faith that he not receive profit from what belongs to another. But if
he has not invested the money but channelled it to his own use, he will
be sued for the interest at the legitimate limit frequently used in those
regions. Finally Papinian says that also if a procurator has exacted
interest and channelled it to his own use, he ought to pay interest.
This is how the printed books have it, but badly — as Jacobus Cujacius
long ago pointed out (Observ. bk.13.15), although he himself did not
successfully restore the affected passage, suspecting that the words
quae legitimo modo in regionibus frequentantur [‘at the legitimate
limit frequently used in those regions’] had been transposed, and
should be joined with the end of the first line of the same paragraph,
in this way: Si procurator meus pecuniam meam habeat, ex mora
utique usuras mihi pendet quae legitimo modo in regionibus
frequentantur [‘if my procurator is in possession of my money, he will
certainly in the case of default pay me at the legitimate limit the
interest frequently used in those regions’].
But how does that help? I suggest that you write:
Si procurator meus pecuniam meam habeat, ex mora utique usuras mihi
pendet quae in regionibus frequentantur. Sed & si pecuniam meam
foenori dedit, usuras que consecutus est, consequenter dicemus, debere
eum praestare, quantumcumque emolumentum sensit, sive ei mandavi,
sive non: quia bonae fidei hoc congruit, ne de alieno lucrum sentiat.
Quod si non exercuit pecuniam, sed ad usus suos convertit, in usuras
convenietur legitimo modo & reliqua.
[(‘If my procurator is in possession of my money, he will certainly in
the case of default pay me the interest frequently used in those
regions. But also if he has put out my money in an interest-bearing
loan and has received interest, we shall in consequence say that he
must pay whatever benefit he has received, whether I gave him a
mandate or not: because it is in accordance with good faith that he
does not receive profit from what belongs to another. But if he has
not invested the money but channeled it to his own use, he will be
sued for the interest at the legitimate limit (and what follows)’].158
158
Noodt's emendation merely transposes the words ‘quae in regionibus
frequentantur’ to qualify usuras, but leaving legitimo modo as an adverbial
ablative modifying convenietur.
122
Book 2
This is my conjecture, and I have no doubt that it is the correct
reading, consonant with the opinion of Ulpian. He presented three
instances distinctive in both reasoning and in law.
The first instance is that a procurator is indeed held to interest
resulting from default, but no other interest than that frequently used
in the region; and I have pointed out that this was decreed in all bona
fide actions. The second instance is that a procurator who has given
out the owner's money in an interest-bearing loan, gives back to the
owner whatever amount of interest he has received. This is of course
to keep him from making a profit from the money of someone else,
which I have also shown elsewhere to be true. The third instance is
that if a procurator has not invested the money but channeled it to
his own use, he is sued for interest at the legitimate limit, that is to
say (as Tryphoninus says in that regard in D.3.5.38) up to the
maximum interest.
Ulpian further says that he is sued for interest legitimo modo [‘at
the legitimate limit’], meaning ‘at the limit prescribed by law’, or ‘to
the limit of the law’. Papinian adopts the same reasoning when he
says (D.20.1.1.3):
By agreement it was decided that if the interest had not been paid on
the appointed day, the returns on the hypothecs would be made good up
to the limit of legitimate interest.
In support of this Modestinus159 says (D.20.2.8) ‘that in cases where a
pledge or hypothec is tacitly concluded, interest to the legitimate
limit is retained’. And Papinian says (D.22.2.4.1) ‘to the limit of
twelve per cent.’
Of similar nature is when someone has at his own expense
restored a tenement-building which is common property without the
support of his partner, and that partner is subsequently willing to pay
him the expenses within four months after completion of the work; it
has been decided that he can repay him interest at twelve per cent
(C.8.10.4), by a law introduced in a speech of the deified Marcus,160
who is mentioned by Ulpinian in D.17.2.52.10, in reference to which
Accursius also writes ‘at fixed interest’ as it appears in the Florentine
manuscript. Other manuscripts read ‘interest of twelve per cent’:
very correctly.
Or shall we say the same regarding letting and hiring? The
following words of the emperors Diocletian and Maximian seem to
suggest this (C.4.65.17):
159
160
Mommsen - Krüger attribute this to Paul.
Marcus Aurelius.
Chapter V
123
The governor of the province will see to it that whatever is owed for
letting be paid without delay, realising quite well that an action on
letting and hiring, when brought in good faith, allows ‘legitimate
interest’ after default.
Now what other ‘legitimate usurae’ than twelve per cent? That was
the only interest called ‘legitimate’ in that period. But it is not so.
The emperors believe that in letting, interest common to all bona
fide actions is owed, in which lighter rates are paid in accordance
with regional custom, which are set against ‘legitimate’ rates
(D.26.7.10; also par. 7, 8 and 9), although they could otherwise not
incorrectly be called legitimate, such as the statutory interest which
was accepted by the Emperors whose decrees were without doubt
called ‘laws’. But since the twelve per cent interest had previously
already appropriated the name for itself, and subsequently there
arose the rates which in bona fide actions are paid in accordance with
regional custom, it was not acceptable that the same name be shared
with these (loc. cit.).
But if this is the case, why are these rates of interest which are
lighter, also called ‘legitimate’ in C.4.65.17? Or is ‘legitimate’
interest the customary interest? It is indeed so called in C.4.65.2; the
word legitimus is often accepted in the place of solemnis
[‘customary’] as in D.1.2.2.6 and D.47.20.3.2.
Petronius also uses the word in his Satyricon: ‘A host of womanwrestlers came in and restored us by anointing us with ‘legitimate’
oil.’
Nevertheless it seems to me more likely that the emperors
Diocletian and Maximian had written ‘to allow interest161 after
default’ in C.4.65.17, but that Tribonian at C.4.32.26.1 wrote the
usual ‘legitimate interest’.
161
i.e. instead of the present reading usuras legitimas.
Chapter VI
Interest recoverable at judicial discretion (continued)
[Summary]
Why the limit of interest owed in bona fide actions and in certain
other actions, in accordance with judicial discretion, is not
unrestricted. When interest is related to ‘damages’, and in the
evaluation of objects, also in the case of money which has been
promised at a particular place, the matter would be approached in a
different manner. The somewhat difficult knot in the reasoning of
the law is untied.
*
*
*
Up to now we have confined the interest, which was owed either by
agreement or in accordance with judicial discretion to the twelve per
cent limit. The question is: how correct is it to do so? However, [the
question does not arise] when the matter refers to gain and is
specifically called usura or foenus, for then it is clearly advantageous
that greed be restrained, since it will only spread out further if not
kept within bounds. And the same will apply if interest is owed even
after default but still in accordance with an agreement; although then
it would rather seem to be a penalty or damages, of course with the
purpose of avoiding fraud being committed under that fiction in
conflict with the decrees by which a limit was placed on interest, as
124
Chapter VI
125
Ulpian, following Papinian, observes in D.19.1.13.26.162 But that risk
does not exist when interest is owed in accordance with judicial
discretion, and when in form it is not so much interest as damages,
the valuation of which, in proportion to the loss of profit or the onset
of loss (for damages consists of both these — D.46.8.13 and
C.7.47.1.2), is sometimes more and sometimes less, and exists in
practice but not in law (as Paul says in D.50.17.24) even in the
delivery of objects (D.19.1.1), in which a more or less simple type of
loss arises. Undoubtedly the interest on money — the use of which is
so changeable and so uncertain — when it is owed in accordance with
judicial discretion, ought not to be restricted to one single legal
process. What is more, since it is in different ways in the interest of
the people that default not be committed in respect of that process,
it can be a matter of doubt whether its valuation ought to be left to
the discretion of a judge rather than being included in a fixed rule of
law.
For what if a creditor who is accustomed to trading were to take
money and so may be able to procure merchandise and make a larger
profit from this than from interest? What if he owed money to
someone else subject to penalty, and that penalty was imposed due
to your default, or subject to pledges which were subsequently
disposed of because he was unable to pay the money on account of his
debtor's default? Surely it would be fair that the profit which he lost
or the loss that he suffered be refunded?
It may appear to be so, judging from the following passage of
Ulpian in D.13.4.2.8:
Now we must discuss judicial discretion in this type of action: ought [the
judge] to be bound to the amount of money involved in the contract, or
either go above or below that amount, with the result that, if it had
been in the interest of the accused to pay at Ephesus rather than at the
place on which had been agreed, account would be taken of that?
Following Labeo's opinion Julian also took account of the plaintiff, in
whose interest it could sometimes be to receive his money in Ephesus,
and so the benefit of the plaintiff will also come into consideration. For
what if he gives money to be conveyed overseas (pecunia traiecticia),163
intending to receive it at Ephesus where he owed money subject to
penalty or to pledges, and the pledges are then disposed of or the
penalty imposed owing to your default? Or if something was owed to the
imperial treasury and the thing belonging to the stipulator was disposed
of at a very low price? Damages will come into consideration in an
arbitrary action, and indeed over the limit of interest. What if he was
accustomed to buying merchandise? And would not only loss, but also
profit be taken into account? I think that profit should also be taken into
account.
162
163
not, as Noodt has it, par.29.
See Berger s.v. fenus nauticum.
126
Book 2
But this is not correct. For if the creditor were to be allowed the
right or the necessity to estimate the loss that could be suffered on
account of default in paying the money owed, then I ask you: what
end would there be of law-suits arising from that, given the frequency
in money-loans and the difficulty in proving the damages (D.46.5.11)
owing to the changeable and uncertain benefit of the use of money?
For a creditor claiming damages arising from default in paying the
money owed, must show that his damages were indeed as large as he
claims (C.7.47.1 par.1) — that is to say, that he is lacking such an
amount for the reason that the money owed has not been given back
to him. For the matter must be narrowed down to this, that what is
at issue is the benefit of the money, and not of any money whatever
but of the money in question. For what is that unless it can be
considered certain and relating to the money which is owed? That is,
if anything at all can indeed be received, but in such a way that it
could also not be received, even though there might be some — or
even great — hope of receiving it. In the valuation of the damages,
that is not considered to be in the place of what is lacking, only
because the creditor does not prove that he would have had that
which he leaves in uncertainty as to whether he would have received
it; indeed, if something can be considered certain, but as much out of
other money as out of money owed, and this does not affect the
valuation of the damages. For it does not seem that he has suffered
loss as a result of default in paying the money owed, that which could
equally have fallen to him from other money, either which he
possesses or else which he can receive by way of a loan at interest and
from a debt. (D.19.1.21.3).164
Proof of the damages is therefore difficult, especially if money is
owed, and for that reason it helps to expedite matters — and this is
of the greatest importance in civil society — if loss arising from the
non-payment of money is determined by the limit of interest rather
than merely in accordance with judicial discretion. Nor does it matter
whether the creditor was a trader, or someone else, and whether,
after receiving the money, he could have made a greater profit or not.
For that is how it appeared to Hermogenianus when he said
(D.18.6.19):
If the buyer defaults in paying the price to the seller, he shall at least
pay interest, but not the full amount that the seller could have obtained
had there not been default, for example if he was a trader and, if the
price had been paid, could have made more from merchandise than from
interest. (So much for Hermogenianus.)
Papinian, too, says this in D.31.70.1:
164
Relevance of reference unclear.
Chapter VI
127
If the legatee is required to restore double the bequeathed amount of
one hundred [thousand sesterces], he will be deemed to have
undertaken to pay as much as the full sum of the legacy. But if after a
time a fideicommissum is left, an addition of at least the interest will be
allowed. And this ruling will not have to be changed simply because by
chance he has, after receiving the legacy, obtained a large profit from
some business transaction, or because he has escaped the impending
penalty of a stipulation. This is the case if one amount of money is
compared with another. For if after receiving the money he is asked to
give back the thing itself, although its price is now higher [than the
amount he received], then the legatee should not be heeded if upon
receiving a legacy he wants to include it in the account, for equity does
not allow this, if the legatee offers what he has received as legacies.
And yet, when a corporeal object is owed, the damages are not
circumscribed by a fixed limit. Why then is money, if it is owed, so
circumscribed? But let us take care not to compare, wrongly, the
owing of a corporeal object with the owing of money. For it is of
importance that loss arising from default in the non-return of an
object, for which there is an established use, is indicated by the
nature of the obligation on the strength of which it is claimed,
whereas in the case of the obligation of one who owes money there is
nothing like this, for in that obligation the nature of the loss in any
case arising for the creditor if the money is not paid, is clear,
especially since the use of money is so changeable and many-sided.
But if this is so it seems that the debtor, having promised but not
paid the object, is liable for the loss which his default caused, and in
which nothing accidental happened to him; and since that in itself can
be evident to a judge, the creditor can also justify to him that he is
short of the amount he claims for the reason that the promised object
was not given back to him.
But this is not the case when money is owed, for the obligation165
of him who promised that money offers nothing on the basis of which
he can understand what type of loss would arise from his default, and
hence to what he is principally bound: so varied is the type of loss
which a creditor can suffer as a result of the inevitable vicissitudes
which hang over the heads of human beings, and which are in the
meantime not spelled out to the debtor in the obligation for the
money, and which could be avoided by the creditor in another way,
and indeed in the interest of the debtor should be considered
fortuitous. In this way it is gradually brought about that one who owes
money, when committing default is not liable for more than interest.
Since in the final analysis that loss is brought about in the form of
money, it can certainly be intended by the debtor and proven by the
165
In the present context obligatio appears to refer to the document confirming the
obligation.
128
Book 2
creditor, and eventually be estimated by a judge in accordance with
the custom166 of the region; especially after the decision that interest
arising from default, and sometimes even without it, in bona fide
actions and fideicommisa and legacies, be discharged in accordance
with judicial discretion. For then interest is understood not to depend
on the uncertainty of some commercial enterprise, nor to be added to
the money from outside, but to be centred on money and taken from
it, as in the case of returns — so Ulpian in D.22.1.34. So the valuation
of damages is not unlimited in the delivery of money as it is in the
delivery of objects.
And this is so acceptable that in one and the same contract which
is binding on both parties, such as, for example, buying and selling,
performance which is due on both sides is not evaluated equally and
on the same basis.
The reason for this is, of course, that the seller realises that he is
liable to the buyer for unimpeded delivery, and furthermore for
eviction,167 for this is contained in the nature of buying (D.19.1.11.1
and 2). And therefore, should he not deliver the farm, or should he
deliver but be evicted, then there is no reason for him to deny that
he is liable for the buyer's full benefit — which he would have had if
the farm had been handed over to him or he had not been evicted. For
he does not deliver what he has promised, and nothing has happened
to him which he can say was unforeseen. It is therefore fair that the
buyer's damages, that is to say his full benefit, be taken into account
in the valuation to the extent that it exists in respect of the thing
itself. (D.19.1.21.3).
But the same does not apply on the part of the buyer, because the
obligation does not show him what the seller intends to do with his
money, and much less still what type of loss that seller would suffer
if the money were not to be paid to him: he only wants the buyer to
be liable for the payment of the price; therefore if he does not pay
and the seller suffers a loss, or is deprived of his profit, say because
he had debt subject to penalty or was able to buy merchandise, the
buyer will not be held liable for either of these, for neither of them
relates to the price of the farm. Both rather enter the matter from
the outside and could be avoided in another way, hence in respect of
the buyer it is considered to be a fortuitous happening to which he did
not bind himself in his legal commitment. He is therefore liable only
for the price and, after the day of delivery of the farm, for interest
(D.19.1.13.20). This is so because today in bona fide actions in
accordance with judicial discretion, interest is not paid on account of
a commercial enterprise but on the basis of the money itself as in the
166
167
Reading more for mora.
evictio i.e. if the seller was not the rightful owner.
Chapter VI
129
case of yield (D.22.1.34), and when the buyer enjoys the proceeds of
a thing after possession of it has been handed over to him, it is
completely fair that he pay the interest on the price. (D.19.1.13.20).
If, however, someone has promised money at an appointed place
and he has not paid there, he is held liable not only for interest but
also for the creditor’s full interest in having payment made at that
place (according to Ulpian in D.13.4.2.8); but for no other reason than
that he bound himself not only to pay the money, but also that it
would be paid at an appointed place at which the creditor required it.
If the debtor therefore has not done it at that place, it is no longer
default that is at issue, but the conduct of him who promised to pay
the money there where the creditor required it, and then did not pay.
And therefore if the creditor suffered loss because of that, or is
deprived of his profit, Ulpian rightly shows (D.13.4.2.8) that the
debtor is liable even beyond the legitimate limit of interest, for in
concluding a contract this can be understood to have been agreed on.
And that is why Ulpian writes that if the money is requested in that
place which had been agreed upon, for example Ephesus, only the full
sum is claimed and nothing more; unless the creditor had stipulated
that ten [thousand sesterces] plus interest be given to me at Ephesus
on an appointed day (which is more or less the case in D.45.1.122): if
you do not give it but I claim it at Ephesus, then you are liable to me
not for damages but for interest: but if I require it at another place,
according to Ulpian (D.13.4.4) you are liable for both. Yet Ulpian in
that passage and also in D.13.4.2.8 is dealing with the discretion of a
judge in an ‘arbitrary action’ [actio arbitraria], which obtains due to
the interposed stipulation. But the same applies in bona fide actions,
if in drawing up the contract it has been agreed that something be
paid at an appointed place, for then, according to Paul (D.13.4.7) it
is not an arbitrary action which is competent but an action arising
from purchase, sale or deposit.
Chapter VII
Exceeding the maximum rate recoverable: maritime loans
[Summary]
The cases in which a creditor would be allowed to exceed the
legitimate limit of interest. Firstly maritime interest168 is dealt
with. This was unlimited. The reason for this is discussed. The
reading of Papinian in D.22.2.4 is emended and explained. The
meaning and text of D.22.2.5.
*
*
*
It has therefore now been established that interest, although it could
rise up to twelve per cent, could however not exceed twelve per cent,
except for a few instances which I have decided to explain next.
One instance was in the case of money conveyed overseas,169 in
which according to Budaeus (Annotationes Priores ad Pandectas
p.364) twice twelve per cent could be promised, and he was
prompted by D.22.2.4, which reads as follows:
It makes no difference whether money conveyed overseas was received
without risk on the part of the creditor; or whether the risk for the
creditor ended after the appointed day and the fulfilment of the
condition. In both cases therefore a loan above the legitimate interest
168
169
foenus nauticum.
pecunia trajecticia.
130
Chapter VII
131
will not be owed, while in the first it is always so, but in the second only
after the risk has been dispelled: and neither pledges nor hypothecs will
be held under the pretext of higher interest (D.22.2.4.1). As much is
owed for the services of a slave who accompanies the debtor in the
interest of the money conveyed overseas as is deducted day by day as
stipulated, to a limit of twelve per cent, and not more than twice that
amount is owed. In a stipulation of interest which was interposed
separately after the final day of risk, whatever legitimate interest will
be wanting will be made up by means of a second stipulation.
Budaeus is of the opinion that that law should be emended170 to read
‘to a limit of not more than twice the [legitimate] interest’. That is
also how Haloander edited it; for Budaeus thinks that the meaning is
that money conveyed cannot earn more than twice twelve per cent,
and he adds that the two charges of twelve per cent could have been
owed for the two voyages, that is to say one for the conveying
overseas of the money and the other for the importation back of
wares bought with that money, as in D.22.2.1.
So says Budaeus: if he is correct, what is it that was significant in
the conveying of money overseas? For it could not, if we follow
Budaeus, exceed the limit of a single twelve per cent, that is to say
of legitimate interest, unless the creditor took upon himself the risk
of the money for the ship's voyage out and its return. Then also,
although twice twelve per cent could be owed, it could nevertheless
not have been possible for any other reason than that the money
conveyed pertained to the risk of the creditor not once but twice. And
yet the emperor Justinian says in C.4.32.26.1 that under the old laws
there was a concession that in conveying money overseas the limit of
twelve per cent could be exceeded. The theory of Budaeus is
therefore not acceptable. And the conjecture of Molinaeus in his De
Usuris n.40 is no more acceptable, namely that before Justinian's
ruling in C.4.32.26.1 it had legally been allowed to stipulate slightly
higher that twelve per cent. For it is true that the civil law had not
placed a limit on maritime interest, but it allowed for an agreement
of contracting parties in proportion to the greater or smaller risk
which the creditor took upon himself. That is what Paul advises us in
his Sententiae bk.2 tit.14 par.3 where he says: ‘Money conveyed
overseas can, because of the risk of the creditor, be subject to
unlimited interest as long as the ship is at sea.’ Paul does not mean
that money conveyed overseas was subject to a single or a double
twelve per cent, but to unlimited interest. He calls ‘unlimited’
interest which is in fact indefinite, in the same way that emperor
Justinian in Inst.2.14 says ‘[a testator] is allowed to institute one
person and more, as many heirs as he wishes, without limit.’ He uses
the words in infinitum [‘unlimited’] instead of in indefinitum
170
i.e. by transposing the words non ultra duplum.
132
Book 2
[‘indefinite’]; just as Macer does in D.48.11.7.1 with these words: Lex
ab exceptis quidem in infinitum capere permittit [‘In exceptional
cases the law in fact allows unlimited penalties to be imposed’]. Paul
therefore means that no limit was placed on maritime foenus by civil
law, and that this interest certainly does not remain within a single
twelve per cent, or as Ulpian puts it, within the legitimate limit of
interest (D.13.4.2.8), but that twice or three times or four times or
more charges of twelve per cent could be allowed. Now I ask: for what
reason? Paul says ‘because of the risk of the creditor’, because this
type of interest is given not so much for the use of the money, or for
making good default (although it is paid for these, too), as for the
price of the risk at sea which the creditor has taken upon himself,
otherwise the debtor will not be covered [against the misfortune of a
ship-wreck] (C.4.33.5). But it would not be fair if the debtor carries
the money overseas at the risk of the creditor and makes a profit from
it, and yet does not pay the creditor for the estimated risk.
But reason demands that equality between the two parties in a
contract be maintained, and that when the debtor makes a profit —
and an excellent one too, as is usually the case in transmarine trade
— at the risk of the creditor, it is not unfair for him to make good the
price of the risk by paying a higher interest to the creditor. But this
applies ‘as long as the ship is at sea’ as Paul (loc.cit.) and also
Diocletian and Maximinian (C.4.33.1) very rightly observe. For that is
the duration of the risk for which the price is unlimited interest.
Now what if the creditor did not take the risk upon himself?
Unlimited, that is maritime, interest is not owed, but only twelve per
cent, or the general rate (C.4.33.2). And it is the same if he did take
the risk upon himself, but not for the whole voyage, but up to an
appointed day or subject to a condition. For then an unlimited
interest is indeed owed up to that day and the fulfilment of the
condition, but after that it is not owed, because when once the risk is
removed there is nothing to be evaluated beyond the general interest:
so only the legitimate, that is to say the twelve per cent, interest is
owed: higher than that is not owed, because a higher interest
comprises the valuation of the risk. But this is not the case here, and
therefore there is no need of an evaluation, in other words of
unlimited interest. And this is what Papinian means when he says
(D.22.2.4):
It makes no difference whether money conveyed overseas was received
without risk on the part of the creditor, or whether the risk for the
creditor ended after the appointed day and after the fulfilment of the
condition. In both cases therefore an interest-bearing loan at above the
legitimate interest will not be owed. But in the first instance it is always
so; in the second, however, only after the risk has been dispelled.
Chapter VII
133
But then Papinian very correctly adds that ‘pledges or hypothecs
will not be held under the pretext of higher interest.’ For even though
interest is often protected by retaining the pledge when it can not be
protected by an action, as when it has been promised in a bare
agreement, and a pledge has also been accepted for the interest
[(C.4.32.4 and 22; D.13.7.11.3]), interest higher than the legitimate
rate, that is to say twelve per cent, can not even be protected by
retaining the pledge (C.4.35.19).
And if this is so, it is clear that the reasoning of Papinian is sound
and that it agrees with ancient law, and hence there is no reason for
the Most Honourable Elbertus Leoninus (Emendationes bk.4 c.7 n.2) to
opine that the clause ‘nor will pledges and hypothecs be held under
the pretext of higher interest’ is not of Papinian, but Tribonian, when
he reviews the latest law of Justinian, which is different from the law
that obtained at the time of Papinian.
Let us see what exactly Papinian says further on in D.22.2.4.1, for
this is a difficult passage which has not, as it should have been,
elucidated by the diligence of learned scholars. That paragraph reads
as follows:
As much is owed for the services of a slave who accompanies a debtor
for the sake of the money conveyed overseas as is deducted day by day
as stipulated, to a limit of twelve per cent, and not more than twice
that amount is owed.
That is the reading of the Florentine manuscript, but Holoander joins
the preceding words ‘for the services of a slave who accompanies a
debtor for the sake of the money conveyed overseas’ to the end of the
main chapter and then reads ‘not more than twice the amount of
twelve per cent is owed.’ And this is the very reading that he ascribed
to Budaeus, who was of the opinion that Papinian was saying that
interest on money conveyed overseas could not exceed a double
twelve per cent. And as I refuted this in what has preceded, so, if one
pays close attention, that is not at all what Papinian says, because he
is not concerned with the interest on the money conveyed overseas,
but with what the creditor stipulated for the services of the slave
whom he had instructed to accompany the debtor for the sake of the
money (for the custom of those times see D.44.7.23). He furthermore
feels that the amount which the creditor stipulated per day for the
services of that slave, must not be above twelve per cent, although
for the money conveyed overseas he could rightly stipulate unlimited
interest.
This and this alone is the meaning of Papinian, which will be even
more clear if the words following later on in that paragraph are joined
to the previous words, these words being:
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Book 2
In a stipulation of foenus which was interposed separately after the final
day of risk, whatever legitimate interest will be wanting will be made up
by means of a second stipulation for services.
The meaning is this: if the creditor has stipulated interest for after
the final day of risk, but lower than the legitimate interest, that is to
say twelve per cent, he will be able to make up for what falls short in
this interest by a second stipulation, which would be for the services
of the slave accompanying the debtor for the sake of the money, but
only as far as the legitimate, that is twelve per cent, interest, not
beyond that. And should he reply to the interpretation of the
preceding words, I would say that those words in D.22.2.4 par.1
should be restored as follows, deleting the word duplum [‘twice that
amount’]: ‘As much as is owed for the services of a slave who
accompanies the debtor for the sake of the money to be conveyed as
is deducted day by day as stipulated, to a limit of twelve per cent,
and not beyond.’171 Or, if someone should prefer to keep the word
duplum, I would read ‘to the limit of twelve percent and no more than
twice is owed.’
The meaning of my first emendation is this: the creditor has given
the debtor money to be conveyed overseas, but he has taken upon
himself the risk, not indeed for the whole voyage, but only up to an
appointed day. That creditor has instructed a slave to embark with
the debtor, and to demand the money owed on the appointed day,
together with interest; and if payment should be made too tardily, a
further daily penalty was stipulated for the services of the slave of
which the creditor would be deprived, due to the default of the
debtor (for services constitute a daily duty, D.38.1.1). The question is
raised: how much could that penalty be? Papinian replies that a
penalty falling within interest of twelve per cent of the principal
loaned, is owed by the debtor, no more. Why so? Because the creditor
can indeed stipulate an unlimited interest for the money to be
conveyed, up to the final day decided upon for the risk, but after that
only legitimate, that is to say twelve per cent, interest. A creditor can
therefore, not even under the pretext of ‘the services of a slave’,
after that final day of risk, stipulate a penalty which exceeds twelve
per cent of the principal loaned, because that penalty is in the place
of interest. For no one can stipulate a penalty in the place of interest
beyond the permissible limit of interest (D.22.1.44). And so it is that
the amount stipulated by the creditor for the services of his slave, is
indeed owed up to the boundary or limit of twelve per cent and no
more; for that stipulation regarding services only comes into effect
after the risk of the voyage has ended, but before that time it carries
no weight, inasmuch as while the risk lasts there is no need to
171
Noodt is in effect interpreting ultra here as an adverb, not the preposition which
governs duplum in the original passage.
Chapter VII
135
distinguish the stipulation regarding the services from the maritime
interest which is unlimited, and can therefore easily cover any price
whatever for the services of the slave. But once the risk is over, seeing
that the interest is now immediately confined within the boundary or
limit of twelve per cent, the question is whether the creditor can
exceed the limit of twelve per cent, at least by means of a stipulation
regarding money for the slave's services of which he is deprived in the
meantime? And this Papinian very correctly rejects. That will then be
the meaning of my first conjecture, where the word ‘double’
(duplum) is expunged.
What if someone prefers to read ‘and no more than twice the
amount is owed’, which was my second conjecture (and, as came to
my notice after I had written this, also almost the conjecture of
Cujacius, Observationes bk.5 c.38). Then the meaning will be that
what the creditor stipulates for the services of his slave is not owed
in excess of twelve per cent or the legitimate interest on the principal
loaned, nor in excess of twice that amount. And although this does not
obtain in the case of maritime, that is to say unlimited, interest, yet
it does apply in the case of legitimate or twelve per cent, that is to
say limited, interest: as I shall show below, and as Plutarch reports
Lucullus to have decided in Asia.
Salmasius also tried to correct and elucidate this law in his De
Modo Usurarum c.8 p.104ff., but with such an unfortunate result that
there is no need to record or refute this theory here.
On the above there followed a further question, on which
Scaevola says (D.22.2.5):
There is a price for risk, even if — when an extremely (a)172penal
condition does not arise — you intend to receive back what you have
given, and in addition something besides the money; if only (b) one does
not fall into some form of gambling, such as that from which conditions
(c) usually arise, (d) such as ‘if you manumit’,173 (e) ‘if you do not do
that, if I do not recover’174 et cetera. (f) And indubitably also if I give a
fisherman a large amount of money to expend on fishing-tackle so that
he can pay me back if he catches anything, or if I give an athlete the
means to sustain him and to help him exercise, so that if he wins he can
pay me back.
With the reception of the law of which I have spoken, namely the one
regarding money to be conveyed, where the creditor takes the risk of
the sea-passage on himself, and for the price thereof may have
unlimited interest, the problem arose whether the same applied in all
contracts where a penal condition had been added, and whether when
172
173
174
It is not clear why Noodt has inserted these alphabetical references into the text.
More probably ‘not manumit’.
convalescere here clearly not in its legal sense of ‘become legally valid’.
136
Book 2
it existed or even did not exist (for the formula is open to different
interpretations), the creditor would lose his money if it did not exist,
or else regain it if it did, and in addition to that something besides the
money.
The reason for the question is that a penal condition seems to be
added in order to evade the law which confines interest within a fixed
limit. That is what Scaevola thinks, and he is prompted by the fact
that the amount additional to the principal which is deducted
according to the agreement in these cases is not so much interest
which is paid for default, as it is the price for the risk which the
creditor bears, and therefore it is not unfair for him to be reimbursed.
Unless it were to be a case in which by giving the money the whole
matter falls into a type of gamble, meaning the true, prohibited type
of gamble which renders no benefit to human enjoyment but is
invoked solely as chance without a rational basis in civil law: in that
case an agreement cannot be approved because it is prohibited by the
laws.
But if it is a case where the whole matter does not fall into such
a type of gamble, the contrary is to be said, namely that the
agreement is valid, although it contains an element of gambling which
is not forbidden by the laws (D.18.1.8.1; D.18.4.7). And Scaevola says
that this happens if it is an agreement from which conditions
(conditiones) usually arise; at least, that is the reading of the
Florentine edition: but in other editions the reading is ‘condictions’
(condictiones),175 as pointed out by Russardus and Charondas in their
Marginal Notes, and Cujacius rightly accepts this (Observ. bk.9 c.28).
For it is not a condition which is said to arise, but a condiction (as in
D.24.1.6 and 52.1; D.22.1.38.3). But a condition is said to be ‘joined’
(apponi) or ‘added’ (adjici) or ‘inserted’ (interponi) (as in D.44.7.31).
If it is therefore an agreement containing a condition of which the
outcome depends either upon the [legal] power of the one who
receives the money, or upon chance or upon both (which is presented
as a threefold condition in C.6.51.1.7), since it is not void but relates
to actions in civil law, such as one from which the condictio sine causa
or a condictio ob rem datam arises, then in the opinion of Scaevola
there is no reason why an agreement should not be valid whereby
someone who does not fulfil an imposed condition which is totally or
partially at his own discretion, should be restrained.
And Scaevola presents the following examples: if I lend to you on
the condition ‘if you do or do not manumit’, or likewise ‘if I do not
recover’, then in these and similar instances, says Scaevola, when
175
i.e. actions ‘for reclaiming something which has been obtained from the plaintiff
without lawful cause or from a mistaken or immoral motive’ (G & H); see also
Berger, Gonin and Lubbe, L & S s.v.; also condiction in OED).
Chapter VII
137
even a penal condition exists or does not exist, both the money owed
can be claimed as well as the increment promised because of the risk,
even beyond the limit of interest. For although the penalty which is
allowed for default in paying the money is circumscribed by that limit
(D.22.1.44; D.19.1.13.26), nonetheless the reasoning here is that the
penalty is not paid for the default but is as it were a price for the risk
which the creditor takes, and is therefore valued at a higher interest.
And this is his decision, as in the cases above in which there is some
or even a big gamble, although not on the part of the one who has
received the money under an arbitrary condition but on the part of
the one who loaned under that condition. This indeed was the case,
he said, if I gave a large amount of money to a fisherman who
intended to expend it on equipment — say a boat, nets and similar
tackle — so that he could give it back if he caught anything. For this
is also a quasi-gamble (D.18.1.8.1). For hope is simply a name for an
uncertain boon (as Seneca says in Epistulae 10.2). This is then, I say,
also a quasi-gamble, but it is not void, because at my own risk I am
assisting the need and publicly beneficial diligence of the fisherman,
and this is only reasonable. Therefore if the fisherman catches
something and I receive money back from him and whatever
additional amount had been agreed on, it is a price for my risk, so to
speak.
Scaevola says it is the same if I give money to an athlete to sustain
(exhibere) himself (that is, to nourish [alere] himself, for exhibere is
a synonym for alere) and to exercise, so that he can give it back if he
wins. And rightly so, for athletes are accustomed to make use of a
strict diet and exercise in order to build up their bodily strength (see
Quintilian Institutio Oratoria bk. 12 c.10.[41] where he says ‘In the
same way as the bodies of athletes become stronger by exercise and
with a certain regular diet’). The agreement is therefore valid if I give
an athlete the means to sustain himself and to exercise. To people
judging this matter purely with their reason, it is foolish and empty
(among such is Anarcharsis176 referred to in the De Gymnasiis of
Lucianus); but following the view of the Greeks, which Solon defends
in the same passage and which the Romans eventually approved, as is
clear from D.9.2.7.4 and D.3.2.4, it has a worthy purpose, even
though it also may have the semblance of a gamble if [the uncertainty
of] the outcome is kept in mind (D.11.5.2.1).
So in this case too, if I at my own risk assist the praiseworthy
undertaking of a man who is poor and therefore lacks the necessary
means to attain a worthy goal, there is nothing that can reasonably be
censured.
176
a distinguished Scythian philosopher, 7th century BC.
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Book 2
However, if that is not the case but there is purely expectation of
profit from an uncertain outcome, without any consideration of a
transaction according to the civil law, it will be called a true gamble
which is unacceptable to a reasonable citizen (D.11.5.2 and 3).
Chapter VIII
Limited instances of higher rates recoverable
[Summary]
On the interest of specific things loaned, and what Justinian calls
‘specific things’ (species) in C.4.32.26.1. On interest of a res judicata
(‘matter adjudged’). A noteworthy inscription in marble.
*
*
*
I have spoken of money to be conveyed overseas, that is to say of the
first exception.177 I come now to the second exception, which
Justinian raises in C.4.32.26.1 regarding ‘specific things’ (species),
which the Greeks translate as ‘fruits’ — not badly, as will shortly
become clear from my reference to Jerome. There is also the title to
C.10.27 ‘That no one may excuse himself in the buying of specific
things, and concerning the remuneration of a purchaser of grain’.178
Then from C.10.27.1 (following the title) it becomes clear what those
‘specific things’ are, the text reading ‘whenever through the weight
of necessity the purchase of corn or oil and other179 specific things is
introduced in whatever provinces, to no one ...’ and so forth.
177
178
179
Chapter VII dealt with the first of the cases where a creditor would be allowed to
exceed the ‘legitimate limit’ of usura, viz. maritime foenus.
sitocomia is apparently a later form for sitonia (as in Krueger).
alienarum cannot be correct: I follow Krueger, reading aliarum.
139
140
Book 2
Justinian himself accepts this when in C.11.47.20.2 he says:
But if the returns are brought in, not in the form of gold but in the form
of specific things, either for the whole or in part, the produce is once
again to be sold in accordance with judicial discretion.
So on these ‘specific things’ (as Justinian reports in C.4.32.26.1) a
higher interest than on money loaned was once allowed. Thanks to
that, greedy creditors, upon lending money, stipulated that it not be
paid back, and if not repaid, the interest thereon, but that a fixed
corn-measure be delivered on produce, and if that limit180 were not
produced on the appointed day there would be increases in the
volume.181
Since this scheme is intended to fraudulently bypass the
legitimate interest, it was prohibited by Gordian in C.4.32.16. But
since the interest on the produce itself was not restricted by any
limit, and indeed went further than was reasonable, Constantine then
imposed a limit in C.Th. de Usuris 1, in the following words:
Whoever gives produce (liquid or dry) on loan to needy persons, may
receive a third superfluous part182 by way of interest, that is to say that
if for example the sum of the loan was two measures he would receive
back a third additional measure. But if a creditor who has been sued183
refuses to take back the amount loaned because of the convenience of
the interest, he is to be deprived not only of the interest but also of the
amount owed to him. This law pertains only to produce because a
creditor is forbidden to receive more than twelve per cent for the loan
of money.
Constantine was the first to divide produce into liquid produce such
as oil and wine, and dry produce, such as corn and barley. Then he
defines the limit of the interest which must be paid in each of the
two. But he determined that if this produce has been loaned, whether
liquid or dry, a third superfluous part can be promised as interest, and
he showed how this was to be understood with the following example:
if you have given two measures of corn you must receive back two
measures for the principal and furthermore a third measure for the
interest; and this is indeed a very high interest, since it goes up to half
the principal or capital, whence it is called a hemiolia [‘one and a
half’] interest, for as Aulus Gellius put it so well (Noct.Att.bk.14c.14):
‘A hemiolios is that which contains a certain total number plus a half
of that number, as in three to two, fifteen to ten, thirty to twenty.’
180
181
182
183
In view of the preceding modiatio, I suspect that modius (a bushel) should be
read for modus.
mensurae lit. ‘measurements’.
superflua pars — i.e. what remains when the original amount has been
subtracted.
conventus — translation uncertain.
Chapter VIII
141
And the reason why such a high limit of interest was acceptable in
the case of produce or of specific things, is clearly formulated by
Jerome (in his commentary on Ezekiel bk.6 c.18 p.206), as follows:
It is customary that on fields of corn and millet, wine and oil, and other
specific items, interest — or, as Holy Scripture calls it, ‘abundance’ — is
exacted. For example when in winter-time we give ten measures, and
then in harvest-time receive fifteen, that is to say half a part more:
someone who considers himself extremely fair takes only a quarter
portion more. And the usual justification for this is: I gave one measure
which after being sowed produced ten measures: surely it is only fair
that I receive back half a measure (eJν hJμιολίας) more, since thanks to
my generosity that man now has nine-and-a-half times of what he
borrowed from me? (There you have the reasoning of Jerome.)
To the previous two exceptions [to the limit of twelve per cent
interest] I shall add a third: it is the law promulgated by the Emperors
Gratian, Valentinian and Theodosian in C.Th. De usuris rei judicatae
in the following words:
Those who default in paying after the end of [the period set by] the
judgment, with the further extension of two months, (which delay is
sometimes granted by way of a dispensation of the law), are to be sued
for interest of twice twelve per cent from the day of execution of the
judgment by which they were found responsible for payment (of course
excluding those who produce a moiety of the loan which is the subject of
the litigation, as previously decided) and [this higher interest will be
payable] until such time as they have settled the debt by payment. And
this has been introduced by us on the similar example from the formulae
of the ancient law: in the same way as mala fide possessors are sued for
double the fruits [interest], so the mala fide debtors are sued for the
same risk of loss. But nevertheless a creditor will, after an interim
period of three months after [the day set by] the judgment, have to
bring an action for default on the grounds of tardiness displayed, in
order to be able to obtain interest of twice twelve per cent. On the
other hand care must of course also be taken against the well-known
cunning of creditors lest, when those debtors who have been sentenced
delay payment, they begin to entertain the expectation of a double
interest. Although it was ruled that if a debtor hastens to free himself of
this penalty he may agree to place money he has obtained in a sealed
bag before the judges, or to offer it to the court, in order to prevent
incurring the risk of double interest from the day on which he begins to
be responsible for payment. We have also decided that this should
indeed be distinguished, namely that if he deviates from the stipulation
of the contracted debt, and the interest perhaps in the course of years
equals the sum of the capital (meaning that the amount of money loaned
as principal matches the amount of interest), then after judgment,
double interest does not apply to both the debts, but double interest
indeed to the capital, whereas simple interest applies to the interest.
In short this means that the law requires that if a debtor has not paid
his debt two months after his judgment was issued, he is then from
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the day when the action was finished, that is to say, concluded with
a judgment, liable to the creditor for twice twelve per cent, until he
settles the debt by paying; and this ruling was based on the example
of ancient law where mala fide possessors were held liable for double
the fruits.
Indeed, the law requires that this finally applies at the point
where after three months after passing of judgment, the creditor has
brought an action for default, but if he has not brought such an action,
the law does not require that the debtor be held liable for twice
twelve per cent. But the law also contained the provision that the
person adjudged, wishing to avoid the penalty of twenty-four per
cent, be able to place money he has obtained or gathered before the
judges, in a sealed bag, or offer it to the court. Lastly the law requires
that if there is a contract of debt arising from a stipulation, and the
interest in the course of years happened to become equal to the sum
of the capital, the double interest does not after the judgment run for
both parts of the debt, but double indeed for the capital as against
simple for the interest.
This is then the third exception to the legitimate limit of interest,
and in accordance with this exception twice twelve per cent is owed,
not, however, because of an agreement between the parties but by
rule of law. The reasoning behind this law is that a debtor who has
been adjudged and who does not pay within the time-limit appears to
abuse the benefit allowed him by that law, and for that reason his
obstinate disobedience needs to be punished more heavily. In short,
the result is that twice twelve per cent, although high enough, did not
seem objectionable to the emperors because of its usefulness in
curtailing dishonesty.
I have observed that this approach was also followed by the
Ancients in other matters where there was an action concerning a
penalty to be imposed by the state, although they did not allow it in
the case of a penalty promised by agreement between parties. In fact,
there is still an excellent example of this in an old inscription in
marble, in Gruter p.208. Because I do not recall any mention of it by
others, I here give its content. It runs as follows:
YET ON ACCOUNT OF [HIS FATHER'S]184 DISREGARD OF RELIGIOUS
SCRUPLES, RUFINUS, THE SON OF PUBLIUS AELIUS ABSCANTUS, MUST BE
DEPRIVED OF THE LAND AND IT WILL BE USED FOR THE STATE FUNERALS
OF SOLDIERS OF THE PRAETORIAN FLEET AT MISENUM185. BUT THE HEIRS
OF PATULCIUS DIOCLES WILL BE PUNISHED BY HAVING TO PAY THE
PRINCIPAL PLUS COMPOUND INTEREST OF TWO PER CENT [PER MONTH]
184
185
The first part of CIL 10.3334 (omitted by Gruter) makes it clear that the alleged
sacrilege was committed by the father of Rufinus.
The main harbour of the Mediterranean fleet in the Bay of Naples.
Chapter VIII
143
BECAUSE OF THE DISREGARD OF RELIGIOUS SCRUPLES IN THE
CLANDESTINE DEMOLISHING OF GRAVES, AND INDIGENT SOLDIERS OF THE
PRAETORIAN FLEET AT MISENUM ARE TO RECEIVE A DONATION WHEN
THEY ARE ILL OR DYING, SO THAT THEY NEED NOT BE NURSED OR BURIED
WITH CONTRIBUTIONS OF MONEY. LET ALL KNOW THAT THIS DECREE IS
IRREVOCABLE.
Chapter IX
Antichresis and interest distinguishable?
[Summary]
Not the tacit but the express antichresis is excluded from the
legitimate limit of interest by very learned interpreters, and among
these also by Jacobus Cujacius. Closer inspection shows that the
distinction made by Cujacius between antichresis and interest is nonexistent. A copyist's error in C.4.32.11. Also regarding its limit
antichresis, whether tacit or express, is not to be distinguished from
interest, except when it is certain that the antichresis exceeds the
limit of interest. If there is indeed a tacit antichresis, what is it? A
number of problematical passages in the Corpus Juris Civilis are
clarified, viz. D.20.1.11.1; C.4.32.17; D.20.1.1.3; C.4.32.14;
D.20.2.8.
*
*
*
Let us now consider whether antichresis186 is also excepted from the
legitimate limit set for interest.
The interpreters say it is, and among them is that shining and
auspicious star of jurisprudence, Jacobus Cujacius (ad Novell.32),
who explained that the limit set on interest is not set on antichresis,
186
Agreement by which the creditor is to have the use or fruits of the pledge in lieu
of interest on the loan(GH).
144
Chapter IX
145
and that although antichresis is a substitute for interest, it
nonetheless is not interest, for an antichresis is brought about by an
informal agreement whereas interest is established by a verbal
[formal] agreement.187 Then he goes on to say that interest is not
ended by the offer of the principal unless it is followed by a deposit,
whereas antichresis is indeed ended by the offer, even if no deposit
is made (C.4.32.11). And just as antichresis differs from interest in
these respects, so it is no wonder that they are distinguished from one
another also in respect of their limit, given the uncertainty of the
fruits [in the case of antichresis], which does not apply in the case of
interest (C.4.32.17 and 14). And Cujacius is of the opinion
(Observ.bk.8 c.17) that this is especially true if the antichresis is
express, for if it is tacit it is still kept within the limit of interest
(D.20.2.8), of course for the reason that an express agreement has
greater weight than a tacit one. So far Cujacius.
But even if it gives me pleasure to agree with him on some points,
my understanding of the matter will be far different from his.For his
first remark, namely that an antichresis is established by an informal
agreement (pactum) but interest by a formal verbal agreement
(stipulatio), is to no purpose, for antichresis does indeed take place
by pactum, but there is also a handing over of a pledge (D.20.1.11.1).
Nor is this peculiar to antichresis, for interest can also be established
by a pactum, together with a pledge: but then although interest
cannot be claimed, nothing prevents its being retained.
Therefore Cujacius’ first distinction between antichresis and
interest bears no weight. But neither does his second: for his
statement that interest is not ended by the offer of the principal
unless it is followed by a deposit, but that antichresis is cancelled by
the mere offer of the principal, although no deposit [of that principal]
is made, is no more true [than his first distinction]. This is so because
an antichresis is a pledge (D.13.7.33) of which possession is retained
until the money owed has been paid, as Marcianus says in D.20.1.11.1
— rightly so, in my opinion. For a pledge is cancelled not by the offer
but by the payment of the principal, unless that offer is followed up
by the sealing and the depositing of the money (C.8.30.3; C.8.13.20);
or unless the offer is made before a magistrate (in jure) (D.46.3.30)
or certainly before a judge (D.13.7.9.5).
But now I ask you, if a pledge is not cancelled by the offer alone
of the principal, how can antichresis, which truly is a pledge, be
cancelled thereby? Moreover, is there any reason why, while the
antichresis or pledge lasts, the right to take the fruits as interest
187
The basic distinction is hence the formality or informality of the agreement.
146
Book 2
would not also appear to last? (D.20.1.11.1). But in C.4.32.11,
Antoninus188 says ‘It is certain that when an estate has been made
liable as a pledge and the creditor has not taken up the money offered
to him lawfully, the debt of the principal is discharged if he has
accepted the fruits.’ But Antoninus is not talking about any offer
whatever of money, but of an offer made before a magistrate: but
that is not a bare offer, but one which is followed by the sealing and
deposit of the principal (C.4.32.19; C.8.30.3; C.8.13.20).
But if this appears to be rather severe to someone, he may
consider whether it could be better to read post oblatam sibi in jure
pecuniam [‘after the money had been offered to him before a
magistrate’] as Ruffardus and Charondas (Marginal Notes) affirm the
reading is in the handwritten texts. Such a divergence in written
characters occurs very easily, if we were to ascribe it to the
abbreviations used by the ancient writers who could have written post
oblatam sibIn jure pecuniam. Hence some inexperienced copyists
turned this into post oblatam sibi jure pecuniam, when it should have
read post oblatam sibi in jure pecuniam. Indeed, I can add what
Ulpian says in D.46.3.30: ‘If the debtor offers the money which was
claimed and the creditor refuses to accept the offer, the praetor
rejects actions.’
In essence, therefore, antichresis does not differ from interest,
although the very learned interpreter thinks it does. But it also does
not differ in the limit, consequently if it exceeds the legitimate limit
of interest the agreement is invalid. Nor do I distinguish whether the
antichresis is in this case express or tacit, as long as it is an
established fact that the fruits exceed the limit set for interest: for
that agreement would be an invasion of the law which restricts
interest to a fixed limit, and in the same way that I am not free to
stipulate interest beyond the fixed limit, so also am I not free to do
so in the case of any other equivalent of interest (D.22.1.44). Likewise
then if it is clear that the antichresis goes beyond the limit laid down
for interest.
But what if this were to be uncertain? Say, for example, the fruits
of the antichresis are mostly lower than would meet the limit for
interest; or say, sometimes a higher yield is produced, with the result
that it is not clear enough which of the two applies. The agreement
must be honoured because of the uncertainty about the yield of the
fruits: the result is that no evasion of the law is committed, and that
it may sometimes happen that more comes in, and again, sometimes,
that less is received. The expectation of a profit is therefore balanced
by the risk of loss, and it seems that thereby the equality between
188
In Krueger's text C.4.32.12[11] is attributed to Alexander.
Chapter IX
147
debtor and creditor which the law demands to be maintained, is
brought in.
So when a farm has been given in antichresis, the creditor can, if
the yield of the fruits is uncertain, retain all the fruits of the pledge,
and he is not compelled to reckon them in with the principal, even if
they sometimes exceed the legitimate limit of interest, and this is
what the Emperor Philip seems to mean in C.4.32 .17, in the following
words:
If your mother has put her possession under an obligation to her creditor
under the stipulation that he may obtain the fruit thereof in the place
of interest, then the terms of the agreement cannot be rescinded under
the pretext of a greater profit having been received, because of the
uncertainty regarding the yield of the fruits.
For we understood from Papinian (D.20.1.1.3) that if it should prove
to be certain that the yield gives interest which is mostly more than
the legitimate interest, the opposite189 must be said. These are his
words:
In the [informal] agreement it was laid down that if the interest was not
paid by the appointed day, the fruits of the hypothec would be
compensated for by interest up to the limit of legitimate interest:
although lower rates were initially stipulated, it was decided that
nonetheless the agreement was not void, since if the lower interest was
not paid by the appointed day, higher legitimate interest could rightly be
promised to the person stipulating.
In a rescript Alexander says that it is the same if I have given you
money as a loan and I have received your home as a pledge with the
provision that I could live in it instead of taking interest (C.4.32.14):
for this, too, is antichresis (D.20.1.11par.1), and it is express
antichresis. And I am free to live in that house, because that is a
provision of the agreement. Let me add: I am free to let the house,
even if this was not openly agreed. But this will be on condition that
if I let it and then collect more from the rent than I could have
received from interest, then I am obligated to reckon into the
principal whatever amount is above the limit of interest. And yet, if I
do not let the house, but live in it, as was agreed, then the agreement
is valid, even if my habitation of the house is worth more than the
amount to which interest ought to rise. The reason for this is of course
that in this case it seems rather that the house was [initially] let more
cheaply than that an illicit interest was contracted (C.4.32.14). The
rationale behind this is that if I let the house, the amount of the
interest received is immediately apparent, whereas if the house is
lived in [by me] it could seem uncertain. For firstly the parties
189
contra — but what Papinian says is as far as I understood it, not ‘opposite’ to the
view of Philip.
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Book 2
contracting may by their nature deceive themselves regarding the
price, and secondly when one is dealing with the evaluation of the
rent, it makes a great difference whether the house is dwelt in by this
one or by that one.
But antichresis is not only express but also tacit, and there is no
difference between the two regarding the limit. For if a field were
simply to be given as a pledge, and nothing is said regarding interest
and fruits, it appears that an antichresis is contracted, not openly but
tacitly. For since an antichresis is established by an [informal]
agreement, and that agreement is satisfied with any consensus
whatever (D.2.14.2), there is no reason why an antichresis cannot be
brought about both tacitly and expressly, the explanation for this
being that a debtor who, after receiving the money in loan, gives the
creditor a pledge without openly entering into an agreement not to
pay interest, leaves it to the human kindness [of the creditor] to be
willing that interest be paid with the fruits which will be produced on
the lands.
This is of course so because the advantage of appealing to
liberality between men does not allow the approval of shamelessness
on the part of one who receives a benefit and is then not in turn
prepared to return a favour when he is able to do so. Seneca puts it
excellently in Epist.81 [par.18]:
Ingrates also mislead themselves in this, that they do indeed pay out the
principal to the creditor, and beyond the normal order, but think that
the use of the benefits is gratuitous. And those benefits grow through
default, and the later the payment is made, the more must be paid. He
who returns a benefit without interest is an ingrate: and so this must
also be taken into account when what has been received is compared
with what was expended.
And in de Officiis 1.15[48] Cicero says:
But if, as Hesiod190 advises, one must repay what you have lent for your
own use in larger measure, if at all possible, what then ought we to do
when challenged by a kindness? Should we not imitate the fertile fields,
which return much more than they have received? For if we do not
hesitate to do favours for those who we hope will be of use to us, how
ought we to deal with those who have already been of use?
Civil law follows that which is in accord with integrity, for it expects
good conduct from each and every person. Therefore when a pledge
has been given without an agreement on interest and fruits,
antichresis is understood to have been established, even if not openly
then at least tacitly. And if the yield of the fruits is certain, the
creditor will retain the fruits in the place of interest — not unlimited,
190
Greek poet, fl.ca. 700 BC.
Chapter IX
149
but as in the previous case, up to the legitimate limit of interest. And
this is what D.20.2.8 means with the words ‘When a debtor makes use
of gratuitous money,191 the creditor can from the fruits of the thing
pledged to him, retain interest to the legitimate limit.’
The conjecture of the Most Honourable Franciscus Hotman
(Observ.bk.1 c.4) is Cum debitor non gratuita pecunia utatur [‘when
the debtor makes use of money which is not gratuitous’]. But the old
reading should be kept: Cum debitor gratuita pecunia utatur, [‘when
the debtor makes use of gratuitous money’]. The notion is this: ‘I have
given the debtor money in loan, without stipulating or agreeing that
he will pay interest. The debtor therefore uses gratuitous money, and
he gives me his field as pledge. It seems that in that matter it is tacitly
agreed that I may not only receive the fruits but also keep them as
interest — not unlimited, of course, but up to the legitimate limit,
(meaning that if nothing has been said about interest, that is to say,
if the money is gratuitous). Why not? Money is called ‘gratuitous’ not
only when it has been agreed that it will not bear interest but also
when it has not been agreed that it will bear interest.’
How a mandate is called gratuitous when the agreement does not
provide for recompense, is pointed out in D.17.1.1.4; and yet D.17.1.6
does not spurn an honorarium or allowance by way of remuneration.
Otherwise, if the money bears interest, an antichresis does not
appear to be contracted, not even tacitly, and therefore the creditor
must receive the fruits when the field has been handed over, and must
reckon the received fruits firstly as interest and secondly as principal
(C.8.24.2). But indeed C.4.32.4 and 22 deny a creditor the right to
retain a pledge in the place of interest, except if this was part of the
agreement. But it has already rightly been observed that in these
passages there is no mention of fruits of a pledge, which by the right
of a tacit antichresis are retained within the legitimate limit of
interest, but indeed of a pledge by the retention192 of which the
creditor wants to safeguard the interest owed under the agreement
or stipulation. And this he is not allowed to do, unless the pledge has
in terms of the agreement also been bound to interest, since the
retention of the fruits in the meantime could be brought about by a
tacit antichresis, provided that it be kept within the legitimate limit.
191
192
i.e. a loan on which interest is not paid.
Reading retentione for retentio.
Chapter X
Concerning fixed interest for senators and the imperial
fisc/treasury and for states
[Summary]
On the interest of Senators, the imperial treasury and states.
*
*
*
Up to now I have shown what kind of right regarding interest applied
to all people, and there would have been no need to devote a special
discussion to the interest of senators, the imperial treasury and
states, had it not been that in these three cases there was a singular
rule of law for each of them which deserves to be taken note of.
But firstly I must speak about the Senators. Because the men of
old wanted this rank of men to be free of any fault and to be an
example to all other men (as we learn from Cicero De Legibus bk.3),
they forbade them interest, naturally so that they would be removed
as far as possible not only from avarice but also from the suspicion and
the cause of it. And I rather think that this, amongst other things, is
what Ambrose had in mind when he said the following in his de Officiis
[Ministrorum] bk.2 c.14:
The denouncement of weakness (fragilitas) — perhaps the reading must
be ‘thriftiness’ (frugalitas) — and the authority of self-control teaches
everyone, and especially him who holds high public office, that his
personal riches should not take possession of a very prominent man, and
that someone who is a leader of free men should not be a slave to
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151
money. It teaches even more that he should in spirit be above riches and
in complaisance below his friend; for humility engenders appreciation.
These laudable things befit a man of the first rank who does not have a
passion for filthy lucre in common with your Tyrian tradesmen and
merchants of Gilead, and does not place supreme value on money and
count his daily profits with an abridged computation.
Chrysostomus certainly does point this out (in Matthaeum c.17,
Homil.57 tom.1, p.508) in the following words:
But if you were to question foreign law-makers you will learn from them
that an interest-bearing loan has always been considered to be a sign of
extreme shamelessness. That is also why they do not allow those most
influential men whom they call Senators to be tainted by profits of this
nature, but they have a legal prohibition to prevent those who are in
public office from tarnishing themselves with that kind of gain.
But the Emperors Arcadius, Honorius and Theodosian (C.Th. de usuris
l.4) changed this law when they allowed senators to conclude a
contract for loaning money at half a centesima [i.e. 6%] interest; and
they add that if anything more than this moderate restriction be
demanded, it be credited to the lessening of the principal. So they
call the limiting to half a centesima, that is to say six per cent per
annum, ‘moderate’, in the same way as the elder Pliny (Naturalis
Historia bk.14 c.4) calls six per cent ‘a courteous and moderate
usura.’
I couple the imperial treasury with the Senators, for Severus and
Antoninus decreed that in its case interest of six per cent sufficed
(C.6.35.1), and Paul refers to that law (D.22.1.17.6) and adds that
those debtors who pay interest of lower than six per cent, must be
compelled to pay six per cent when they begin to be debtors of the
fisc. And in D.49.14.6 Ulpian says that this applies from the time that
it is agreed that the debtor has been identified and has acknowledged
liability, for from then onward the treasury charges fiscal rates even
though lower rates are owed.
This is the published reading of that passage, but Jacobus
Cujacius, Observ.bk.19 c.2 corrects it to ex quo convenit certum
debitorem confitentem [‘from the time that it is agreed that the
identified debtor has acknowledged liability’].193 Here is one
exception in the interest of a matter adjudged (res judicata), and this
exception was formulated by Emperor Antoninus (C.7.54.1) who
decided ‘that whosoever has after the time allowed not complied
with the agreement, should pay interest of twelve per cent for the
time that passes after that.’ In the wording of the law no mention is
indeed made of the treasury,194 but the Greek scholars (Basilic.
193
194
Cujacius merely omits et between debitorem and confitentem.
This is a moot point: Krueger prints, after the heading, Fiscus ... habiturus est.
152
Book 2
bk.9.tit.3.tom.1, p.518) accept that it refers to the treasury, and
they are led to it by the inscription Imp. Antoninus A. Procuratoribus
hereditatum, [‘The Emperor Antonius Augustus to the fiscal agents of
inheritances’] in support of which there is also a rescript of the
Deified Brothers195 in D.49.14.32.
Furthermore Antoninus thinks (C.7.54.1) that the interest on a
matter adjudged comes into effect immediately by virtue of the law
itself after the time allowed, if the guilty party has not complied with
the agreement.
But it is clear that this rule is in favour of the treasury to which
interest on delayed payment is generally owed, also when the notice
to the debtor no longer applies, since interest is not owed at that time
by reason of a matter adjudged, before notice is given, as I shall show
in Book III chapter 9 and 10.
What shall we say of the commonwealth of states? If you believe
Pliny (Epist.10.54)196 usurae asses, or twelve per cent interest
(centesimae), could at that time be owed from public funds, and the
inscription in Gruter which I cited in Book I above (Gruter p.175,
Inscr.4) refers to that interest. But since people who would be willing
to owe money to the state at such high rates of interest were not
easily to be found, because public money is not loaned without
suitable pledges or hypothecs (as Ulpian says in D.22.1.33.1), Trajan
found it advisable (in the following letter, 55) to deviate from that
legal norm and to allow Pliny (for that matter also falls under the care
of a governor [D.22.1.33]) to lower the amount of the interest, in
order that public funds be more easily invested. However, he did not
prescribe a fixed limit to Pliny, but merely instructed him to decide
on this according to the number of potential borrowers; but later on
he decided that that interest was to be six per cent. Indeed, in the
case of Septitia who promised her city a celebration of games funded
by the customary interest to be paid on thirty thousand sesterces with
the proviso that the principal remained with her, and the form of the
promise did not comprise fixed interest, Modestinus (D.50.12.10)
interpreted the ‘customary interest’ to be none other than six per
cent per annum (semissales).
This is also expressed on the following [sepulchral] monument in
Gruter p.215. Inscr.2:
... IN ADDITION TO THIS IT IS MY WILL THAT TEN THOUSAND SESTERCES
BE GIVEN TO THE CITIZENRY OF PETELIA,197 LIKEWISE THE CAEDICIAN198
195
196
197
198
Probably Severus and Antoninus (Caracalla and Geta?).
Noodt's references to letter 62 and 63 are incorrect.
The modern Stróngoli in southern Italy.
This is the CIL reading for Gruter's Chalcidianam.
Chapter X
153
VINEYARD TOGETHER WITH PART199 OF THE POMPEIAN FARM, WHICH
[PROPERTY] IS THE MOST EXCELLENT AND MOST EXTENSIVE WITHIN THE
REGION WHERE MY [PROPERTY] WAS.200 MOREOVER IT IS MY WILL THAT
FROM THE MONTHLY HALF A PERCENT INTEREST ON THE TEN THOUSAND
SESTERCES, LAMP-STANDS AND OIL-LAMPS BE PROCURED [FOR THE
USE]201 OF THE AUGUSTALES202 OF OUR REGION AS FURNISHING FOR THE
TWO DINING-ROOMS WHICH I HANDED OVER TO THEM IN MY LIFETIME,
AND SO FORTH.
Clearly if statues which are to be erected are bequeathed to the state
— that is to say, as I have pointed out above, if a certain sum of money
has been bequeathed for the buying and erecting of statues without a
date being prescribed by the testator — the late Emperor Pius decreed
that a date be decided upon by the governor, and if the heirs have not
made a deposit (as Ulpian says in D.50.10.5) they pay the state lower
interest, namely (as Paul explains in D.22.1.17par.8) up to a third of
a centesima, [or four per cent,] but only within six months, but if not,
six per cent. But if a date was set, they must deposit the money by
that day. If, however, they say that they cannot find statues, or make
an issue of the site, they pay six per cent forthwith. In this way the
two passages must be connected, so that there is no need for the
conjecture of Cujacius (Observ.bk.5 c.38) when he thinks that Paul
has in D.22.1.17.8 been influenced by Tribonian toward the new law
of Justinian in C.4.32.26.1.
Also deserving attention is what Paul writes about an annual
legacy203 of the state, if an evaluation of the Lex Falcidia is dealt
with, namely that such an amount is understood to be bequeathed as
would be enough for the principal to gather interest not of six per cent
but of four per cent of the sum which has been bequeathed. These are
Paul's words in D.35.2.3.2: ‘Likewise if an annual legacy is left to the
state, Marcellus thinks that when there is a question about the Lex
Falcidia, the legacy appears to be as large as would be sufficient for
the principal to gather interest of four per cent of that sum that was
bequeathed.’
The sense of this is that when the Lex Falcidia is at issue in an
annual legacy to the state, the calculation is made exactly as if such
a sum had been bequeathed from the interest of which the rates could
easily be found — such as four per cent interest, which is very light —
and from which the bequeathed sum can be raised every year. Take
199
200
201
202
203
Reading parte for Gruter's partem.
The Latin text from EA (ITA) UTI ... to ... FUERUNT is extremely difficult to
construe, but it fortunately has no bearing on Noodt's argument which relies on
the last part of the inscription.
Following CIL's emendation in usum.
A college of priests presiding over the cult of Augustus.
legatum annuum, a legacy under which the legatee had to receive a certain sum
every year.
154
Book 2
the following example: one quarter [of the principal] per annum has
been bequeathed in the legacy: it will be just as if one hundred has
been bequeathed, because an interest of four per cent of a hundred
delivers one quarter per annum. Therefore, just as when one hundred
above the three-quarters have been bequeathed to the state, twentyfive are subtracted from the legacy for the quarter required by the
Lex Falcidia, so when one fourth annually has been bequeathed to the
state (which is a perpetual legacy, since the state does not easily die
— D.33.1.24 and 6 and 20.1), then year by year a fourth part will be
drawn from the annual fourths, so that now not an annual fourth but
an annual third would be owed. And that is determined upon because
by that proportion both the heir and the state seem to be cared for:
the first indeed for the sake of lower interest, but the latter for the
sake of its principal being higher and so that the payment from it may
be fixed and perpetual. In this way we arrive at the point where the
testator, although he had been in a position to bequeath in his legacy
to the state interest of six per cent of the same principal had he
wished to do so, in fact does not appear to have chosen six per cent.
Chapter XI
Concerning compound interest
[Summary]
Interest on interest, or compound interest, but annually
compounded, was observed by the Ancients, also by Cicero, in the
traditionary Edict; but then it was prohibited by a decree of the
Senate and by imperial decrees. The reason for this. A clever
interpretation of the Ancients, namely by Ambrose and Justinian, on
what appeared to them to be interest on interest is criticized. If the
person of the creditor changes it is not compound interest or interest
on interest; the circumstances under which it is deceptive. What if
someone has stipulated lower rates of interest and also stipulated
that if these are not paid on the due date, legitimate interest will be
owed? Before the time of Justinian, compound interest could be
brought about by a judgment-debt. The way in which this was done.
Even that compound interest was abolished by that same emperor.
*
*
*
I have said enough about the ancient limit of interest, except that a
few remarks have to be added concerning interest on interest, and
the discussion of this belongs to this part of the book. Cicero calls that
interest on interest anatocismus204 [‘compound interest’], and he
204
The transformation of interest due and not paid, into a new interest-bearing
principal (Berger).
155
156
Book 2
recalls that when he was governor of Cilicia he had allowed this in an
edict which was not new but traditionary,205 but eventually at twelve
per cent (centesima) and annually compounded, which applied if a
debtor has not made a payment of monthly interest for a full year. I
quote Cicero's words in ad Att.5.21.11:
Meanwhile, although I had in my traditionary edict held that I would
observe centesimae [‘an interest rate of twelve per cent per annum’]
with annually compounded interest, that man [Scaptius] asked for
quaternae206 (‘forty-eight per cent per annum’) on the strength of the
terms of his promissory note. Therefore interest on interest was allowed
by the ancients in terms of a traditionary edict.
But the Senate did away with this. My source for this is Cicero (ad
Att.5.21.13) when he writes:
There you have my case. If Brutus does not approve of my ruling I see no
reason why I should be very fond of him. But his uncle207 will definitely
approve, especially since a decree of the Senate has recently been
passed (after you left the city, I think) in the matter of creditors, that
twelve per cent will be levied as a fixed interest rate.
This then means that there is no renewal year by year, or that
thereafter interest on interest would not have to be paid, as the law
used to be previously.
The same Cicero writes in ad Att.6.2.[7]:
But I brought the Salaminians to the point (since I was in a position to
exert pressure on them) that they were willing to pay Scaptius the entire
debt, but with interest at twelve per cent calculated from the date of
the last renewal of the promissory note, not at a fixed rate but
compounded annually.
So the Senate prohibited interest on interest, in my opinion not as if
it was in terms of pure reason not to be allowed, but as if it was not
necessary in terms of civil law. For the fellowship of human beings can
do without this type of interest, but it does not oppose it any more
than it opposes interest on principal. And the moneylenders in
Ambrose's De Tobia c.6 are not completely bad when
They demand more vigorously, they exert pressure on the pleading
debtor, saying: ‘You possess your estates, but we do not have our money.
We have given you gold but all we have now is the tablet [with the
contract]. The profits of the produce fall to you, but our money does not
grow at all. Your pleas are useless, let us at least renew the promissory
note.’
205
206
207
tralaticius — see n.142
Sc. centesimae, i.e. four times twelve percent.
Marcus Cato.
Chapter XI
157
So the reasoning which supports interest on principal likewise
protects interest on interest. Yet there is this difference, that a
debtor cannot easily receive principal to be used unless he promises
interest in return for the use, but it is not necessary for the creditor
to stipulate interest on interest if the interest is not paid, since he can
serve his own interest in another way: for if he is afraid that he may
suffer loss on account of default by the one paying interest, he can
claim interest of his own accord and so manage not to suffer loss.
Therefore, although interest on principal is necessary in a civil
society, interest on interest is not necessary if a creditor is meticulous
in exacting the money owed to him; otherwise, if he is too careless,
he has reason to blame himself, not his debtor. What if he left it to
the decency of his debtor to avoid having to ask for the interest? And
this creditor would not blame a debtor who uses his benefaction. It is
furthermore in the interest of society that a debtor — be he careless,
or naïve, or at least not very far-sighted — be overwhelmed by the
accumulation of interest on the part of a greedy creditor, under the
pretence of human kindness. The rationale behind the Senate's
rejection of interest on interest therefore belongs to ius civile and not
to the ius gentium.
But not only the Senate prohibited it, but also the Emperors, as
Modestinus reports in D.42.1.27; and Diocletian and Maximian even
went so far as to write in a rescript (C.2.11.20) that ‘the taint of evil
reputation (infamia) is to be inflicted on those who engage in
dishonest lending at interest and exacting interest on interest.’
That is clear enough, unless the question be asked what the
nature of that interest on interest was. For although precaution was
taken to prevent those rates being charged (naturally so that cause
and increase should not be the same thing, with easy ruin for the
debtor - D.50.8.2.5), men who were greedy but shrewdly skilled in law
(ius) eluded the force of that law under the pretext of maintaining the
law (lex), precisely with the result that the law appeared to lie not in
things but in words. For their interpretation was that interest on
interest would be employed when a creditor stipulates that the
money which he loaned be given back to him on an appointed day, and
the later it was paid, interest was to be given on that money: if this,
too, was not paid by the appointed day, then interest was to be paid
also on that interest; but that was forbidden by civil law, because
then interest is indeed paid on interest, that is to say, there is an
increase of an increase, as is the case in D.12.6.26.1 and D.42.1.27.
But, they say, it is very much a different matter if interest which
was already owed is put together by the conclusion of a stipulation,
and from the total sum — should it not be paid — further interest is
promised, since interest which has been completed and brought into
the principal does not remain interest but in effect becomes
158
Book 2
principal, that is, principal on which interest is owed, and the law
(lex) does not hinder this (because it speaks of interest), nor does
reasonableness (since it does not matter to the debtor whether he
pays interest to the creditor after receiving money from him as a
loan), or whether he holds back the interest which he owes with the
consent of the creditor; in which case, even though the money on loan
has not openly been given, it is nonetheless understood to have been
‘delivered with the short hand’.208 It is also only reasonable that the
creditor's interest should not be unproductive, since in the meantime
the debtor is enjoying the fruits of the money loaned to him, or the
things bought with it, as has been said above in the quotation from
Ambrose De Tobia c.6.
But although this whole matter has the semblance of
reasonableness and legality, it was displeasing, I will not even
mention to Ambrose (loc.cit.chapters 9,7,12,13), for he condemned
all interest, but also to Justinian (C.4.32.28), since it seemed to him
to be contrary not to the words but to the spirit of the law. Now my
question is this: when a law forbids interest on interest, what purpose
can it have other than to prevent a debtor — whether he be careless,
or cannot see further than his feet and does not even foresee what
will happen (which, according to Terence in Adelphi 3.3 is the mark
of a wise man) — from being overwhelmed by the accumulation of
interest on the part of an inhuman creditor?
But if you keep the final outcome in mind, what is the difference
whether a creditor brings interest from interest into the stipulation,
or stipulates interest from interest which has been brought into the
principal? Because in both cases he takes interest from interest under
that pretext, while the debtor is not fully aware of the risk entailed
in default; although he does it openly in the one case and in the other
clothes the issue in words: and this is the more hazardous for the
debtor, because the effect of this is that he is in the end not able to
pay the interest in instalments and thereby avoid paying interest on
interest. And this he could do by means of another type of compound
interest, also rejected by the state.
So interest on interest was not allowed before the time of
Justinian unless it had been brought into the principal. Yet a guardian
owes, under a bona fide action, the interest on interest which he has
exacted from his ward's debtors and kept for his own use. That is how
it is, but what difference does it make whether he turns the ward's
principal or his interest to his own use? (D.26.7.7.12). For after the
interest has been exacted from the debtors, it functions in the hands
of the guardian who has exacted it not as increase but as principal
(D.26.7.58.1 and 4). It is the same if a guardian, or an agent [with
208
See Berger, also GH, s.v. traditio brevi manu.
Chapter XI
159
power of attorney] (procurator), or an unauthorized administrator
(negotiorum gestor) pays interest to the creditors of a ward or of an
owner, because the money which he spends on behalf of the ward or
the owner, in his hands functions as principal, and he pays it not in his
own interest but in the interest of the ward or owner. He will
therefore rightly demand interest on that, not as on interest but as on
principal; and indeed, if he has paid from his own resources he will
demand the rate of interest most frequently employed in his region.
But if he received as interest-bearing loan that which he paid, then
he will receive back the interest which he pays by making use of a
bona fide action (D.22.1.37; D.17.1.12.9; D.27.4.3.1).
The same is not to be said in the case of a person who is a second
creditor to whom a thing has been given as security, if the first
creditor was released by his money. For although he holds that thing,
even against the will of the debtor, as much with a view to his own
debt as to that of the first creditor, and with a view to his own
interest as to the interest he paid to the first creditor, nonetheless (as
Papinian, and following him Marcianus, writes) it would not be fair
that he receives interest on interest which he paid to the first creditor
(D.20.4.12.6). Marcianus adds the reason for this, namely that in
paying the principal and the interest owed to the first creditor he was
managing his own affairs, and not those of another, that is to say of
the debtor, even though by the payment of his own money he released
the debtor from the first creditor. For he did not do it out of
consideration for that debtor but for the sake of confirming that the
pledge was his. He was therefore looking to his own interest, not that
of the debtor; and because he did it for his own sake, he cannot now
charge it to another person, namely the debtor.
Phaedrus points this out beautifully in Fabulae bk.1.23:
When a weasel who had been caught by a man attempted to avoid being
killed on the spot, he said:
‘I beseech you to save me, for I purge your home of troublesome mice.’
The man replied: ‘If you were doing it on my behalf it would have been
welcome, and I could have been merciful to your entreaty; but since you
are now striving to exploit the remains which they were going to gnaw
at, and at the same time devour those same mice, do not reckon a
groundless favour to my account.’
So saying, the man sent the shameless weasel to his death.
Those who serve only their personal advantage and boast to the ignorant
about their worthless service ought to realise that this tale has been told
against them.
Thus spoke Phaedrus. Seneca, too, says in De Beneficiis 6.7.[33]:
There is no favour other than that which is first brought upon us by some
form of reflection which then becomes friendly and benignant.
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Book 2
Interest on interest was therefore not allowed. But what if a
creditor has stipulated that the interest would be lower, say four per
cent, and that should this not be paid by the appointed day, it would
be the ‘legitimate’ interest, namely twelve per cent? There has been
doubt about this. But in D.22.1.9.1 Papinian says ‘Not a penalty but a
richer interest is promised thanks to a just calculation of the
principal.’ This is however not interest on interest (for, as often, he
uses the word ‘penalty’ [poena] for interest) but a higher yet
legitimate interest, not from interest but from a just calculation of
the principal, that is from the principal or capital, is promised if there
is default on the part of the debtor with the result that the lower
interest is not paid on the appointed day.
So much then for compound interest agreed to in a stipulation.
Now I come to compound interest exercised through a judgment of
the court, for that, too, is accepted in Civil law (the sole passage in
C. Th. de usuris rei judicatae), because after litis contestatio209 and
the verdict (condemnatio) which follows, what happens is that the
former obligation is transferred, as it were by the intervention of a
novation, to an obligation of judgment-debt (D.15.1.3.11;
D.20.1.16.6). And this occurs not only in the case of the principal but
also in regard to interest, for this interest, too, is brought about by a
verdict as if by a novation, especially if both principal and interest
have been demanded. For if the principal is demanded [but] interest
is not, it is more correct that, when there is one obligation for the
principal and another for interest (D.13.4.8), the stipulation of the
principal is indeed renewed, but not that of the interest (C.3.1.1). So
in civil law compound interest is brought about not only by a
stipulation but also by a judgment of the court, but only if the interest
is also included in the verdict; for then the interest is terminated in
consequence of the previous action. And after the legitimate period
in which the judgment-debt is to be paid, which is dispensed with by
the delivery of the interest, the interest of the judgment of the court
begins to run — but then as one whole, that is to say both of the
principal and of the previous interest which has been brought into the
principal by the verdict. But also in this case, Justinian abolished
interest on interest. (C.7.54.3)
209
‘joinder of issue’, the final act in the proceedings in jure.
Chapter XII
Interest on collected fruit from either things or
inheritances
[Summary]
Concerning interest on fruits gathered either from an individual
thing or from an inheritance, before or after joinder of issue.
*
*
*
The following discussion concerning interest on gathered fruits
(fructus210 percepti), whether from an individual thing or from an
inheritance, is related to the above discussion concerning interest on
interest.
Papinian says of this (D.22.1.15):
Interest need not be paid on those fruits which must be restored after
joinder of issue; nor on those fruits previously gathered which are
claimed as if from a possessor in bad faith.
The whole argument of Papinian concerns fruits which a possessor,
not in good faith but in bad faith, has gathered from an individual
thing. That argument is no less clear in the first than in the second
part of the passage, for it is established that every possessor in good
faith becomes one in bad faith after joinder of issue. So this means
210
In this chapter fructus appears to refer to natural produce of lands or gardens,
although it can refer to proceeds of any kind, such as interest.
161
162
Book 2
that no matter whether a possessor in bad faith has gathered the
fruits before or after joinder of issue, he does not pay interest on the
fruits.
In the first place Papinian says that a possessor in bad faith does
not provide interest on the fruits which he gathered after joinder of
issue. And he adds the reason for this, namely that the fruits gathered
by him after joinder of issue must be restored in accordance with
judicial discretion. Truly so, for the fruits could not be claimed at the
time of joinder of issue, because they did not yet exist at that time,
and how could they then be included in an action for recovery?
Nonetheless, if they were subsequently gathered by the possessor, a
judge could order that they be restored, as if they were increases in
the thing demanded. If this is the case, it becomes clear that interest
on them is not at all provided by the possessor, because increase on
increase is unacceptable. And that is true even if after the sale of the
fruits, their prices are incorporated in the principal. But Papinian says
that interest is similarly not allowed on fruits if, having been gathered
before joinder of issue they are claimed back, that is to say if they are
sought by a condictio ex lege [‘a formal legal claim of restitution’],
either sine causa [‘without good cause’] or ex iniusta causa [‘based
on an unjust cause’]. I agree with this, because condictiones are
actions of strict law (stricti juris)211 in which interest does not come
into consideration unless it has been brought into a stipulation. But
fruits gathered prior to joinder of issue are claimed by condictio when
they have been consumed, for if they still exist they can be claimed
by rei vindicatio (C.4.9.3; C.5.71.16; D.13.7.22.2). And in that case,
too, good sense does not allow interest to be owed on these fruits, for
it is an established fact that interest is not owed on objects, as I have
pointed out above. This is Papinian's opinion regarding the claim by
rei vindicatio of an individual thing.
The passage on an action claiming an inheritance in (D.5.3.51.1)
reads as follows:
Interest is not paid on fruits gathered after an inheritance has been
claimed. It is a different matter in the case of fruits which were
gathered prior to the bringing of an action claiming an inheritance, and
which increased the inheritance.
Papinian says that interest is not paid on fruits gathered after joinder
of issue, of course because these fruits have not from the outset been
included in the action claiming an inheritance; for at the time of litis
contestatio they were not yet part of private property and still less of
things pertaining to an inheritance: that they eventually are included
in an action claiming an inheritance, is certain. The fact is, these
211
Actions the formulae of which had no clause ex fide bona. (Berger).
Chapter XII
163
fruits are not owed from the outset through the right of an action but
in accordance with judicial discretion they are owed as it were as
increases. Therefore interest on them is never paid, whether they
already exist and are considered as objects, or have already been sold
and incorporated into the principal, because, as I have said, increase
on increase is not acceptable. Likewise in the case of fruits which are
gathered after an action claiming inheritance.
What if the fruits were previously gathered and also sold? (for thus
a specific instance has to be formulated in D.5.3.51.1, as in
D.34.9.18).
Papinian says that the rationale behind those is different. For
what reason? Because the fruits that were previously gathered
augmented the inheritance. Rightly so, for all things belonging to an
inheritance come into consideration in an action claiming an
inheritance. (D.5.3.18.2 and 19). Moreover fruits gathered prior to a
joinder of issue were already then things belonging to the inheritance.
They are therefore included in an action claiming an inheritance. And
this is a consequence of the formula of the action claiming an
inheritance, which formula is: ‘I declare that that inheritance is mine,
and it includes not only the inheritance but also the fruits which
augmented it before the action was instituted, as if part of the
inheritance.’ (D.5.3.20.3). And if that is the case, what prevents
interest on those fruits being paid in accordance with judicial
discretion? Especially so if it becomes clear that the fruits are
included in the action claiming the inheritance, not as increases but
as things belonging to or part of the inheritance. (D.5.3.51.1;
D.5.3.40.1).
The same applies in the case of an heir against whom the Treasury
institutes an action claiming an inheritance, on the grounds that he
had entered into a tacit fideicommissum in order to evade the law;
for he is not considered to be a possessor in good faith but is rather
understood to be a plunderer. (D.5.3.46). So Papinian writes in
D.34.9.18 that he once furnished a response to a legal question in the
following words:
I replied that he who has entered into a tacit fideicommissum in order to
evade the law, must be compelled to restore also those fruits which he
gathered before the start of litigation, because he does not appear to be
a possessor in good faith, on the precedent of goods claimed by the
Treasury. I also replied that after the legal controversy concerning the
tacit fideicommissum was set in motion, the prices of the fruits
previously gathered were to be restored together with the interest on
them, but only of all the fruits of which the prices had been gathered.
But if he made use of the fruits, it was sufficient that only their prices
be restored.
Papinian here explains several aspects:
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The first is that if he who has undertaken a tacit fideicommissum
with a view to evading the law is sued by the Treasury, he is obligated
to restore not only the things which the Treasury has claimed, but on
the precedent of those very things also the fruits which he gathered
before joinder of issue. Papinian also gives the reason for this, namely
that when he has given an assurance in order to evade the law, he
appears to be not so much a possessor in good faith as one in bad
faith.
The second aspect is that he who has entered into a tacit
fideicommissum after a legal controversy was set in motion, that is to
say, after joinder of issue, is obligated to restore the prices of the
fruits before joinder of issue: and not only those prices, but also the
interest on them.
The third aspect is that if he did not sell the fruits but made use
of them, he restored not the prices plus their interest but the prices
without interest.
Thus opined Papinian, because at that time it was consistent with
the rigour of a law which no imperial decree had yet relaxed. But
after the imperial decree of the deified Emperor Severus212 which
then followed, he had another view of the matter and then wrote as
follows about that decree (D.34.9.18):
But the deified Emperor Severus has generously decreed that only the
fruits of goods bequeathed tacitly without a specific indication of time,
and not also the interest on them, are owed. Which is the law we now
observe.
What Papinian means is that the heir who has been sued by the
Treasury is obligated to restore only the fruits, not also the interest
on those fruits, and that there was no difference between the time
which preceded the joinder of issue, and that which followed upon it.
How is that possible? It is because the deified Emperor Severus,
contrary to the rationale of the law which previously obtained,
generously so decreed. And this is the law which we observe.
And yet in D.22.1.17 par.2 Paul says:
The deified Emperor Pius213 has held in a rescript that in the case of a
tacit fideicommissum all the profit is to be taken from the heir and paid
to the Treasury: so the profit of the interest is also taken from the heir.
What then? For he does not say that an heir who has given a tacit
assurance pays the interest on the fruits which he himself sold, but
the gain of the interest, if he gathered any such interest from the
212
213
Septimius Severus, emperor 193 - 211 A.D.
Antoninus Pius, emperor 138 - 161 A.D.
Chapter XII
165
debtors of the inheritance. He must therefore restore the interest
which he himself gathered from the debtors, but he need not pay the
interest on the fruits which he has sold.
These measures apply in the case of a possessor in bad faith. What
about one who is in good faith? The same must be said, at least after
joinder of issue, for from then on he is held to be a possessor in bad
faith, as I have said above. But not exactly the same is to be said for
the period prior to the joinder of issue, for then he is not obliged to
restore the fruits or their prices, and therefore also not to pay the
interest, not even from the time of joinder of issue, unless he was
enriched thereby: in that case, since the fruits are included in the
restitution as an increase of the inheritance, he must consequently
also deliver their fruits, that is to say the interest on them.
(D.5.3.40.1; C.3.31.1.1)
Chapter XIII
Diverse abuses of, and remedies against, usurious interest
[Summary]
On the diverse and incredible abuses of interest, both overt and
covert, which were once committed. Notable examples of both are
given, and at the same time remedies against abuse. ‘Reliable
debtors’ in Horace, ‘unreliable’ ones in D.14.6.1 (Ulpian); a ‘reliable
man’ in Cicero. The purport of C.4.2.8, C.4.32.16, and some other
passages in the Corpus Juris Civilis.
*
*
*
Now that I have expounded on the limit of interest, it is time to add
some remarks on its abuse. For greed did not come to a halt when it
should have done so, but often exceeded the limit and boundary when
moneylenders stipulated not twelve per cent (which was at least
allowed by the law, even though it was a high rate and ‘bloodstained’), but twenty-four per cent, or thirty-six per cent, or fortyeight per cent, even sixty per cent. This is mind-boggling, but it is
absolutely true, and there are real witnesses in the world who testify
to it, because Cicero in In Verrem 3.71 refers to binae centesimae
[‘twice twelve per cent’], Juvenal in Sat. 9.7 to triplex usura, that is
ternae centesimae [‘three times twelve per cent’], Cicero in Ad Att.
Epist.5.21.11; Epist. 6.1.5 and 6; Epist. 6.2.7 to quaternae
centesimae [‘four-fold profits’], and Horace in Sat.1.2.14 to quinae
166
Chapter XIII
167
mercedes [‘five-fold profits’], that is to say quinae centesimae [‘five
times twelve per cent’].
And regarding this abuse I rather think that I should furthermore
refer to these words of Volusius Maecianus214 in his De Distributione
Assis (although they could also refer to maritime interest, which
allowed interest of more than twelve per cent, as I have pointed out
above in Chapter VII) ‘... that the centesima which in the name of
profit or that is to say an interest is attached to the principal is
indicated by a sicilicus,215 inverted C [i.e. ]; because since C stood
for one hundred, it was turned around to indicate that total sum of
which there would be one-hundredth (centesima), and if one
centesima was agreed upon, one sicilicus was put down, if more
centesimae, then that number of sicilici were put down.’
C
But I could truly say that that is clearly a matter setting the very
worst example, for those moneylenders who employed an interestrate up to that high limit were considered to be not merely harsh or
severe, but rather shameless and dishonest, of course for the reason
that a case of such monstrous interest could not be other than
disgraceful. For moneylenders, although harsh, were nonetheless
good, because (as I pointed out above in chapter XI of Book I) they
loaned at interest only to those to whom a loan could safely be made.
(Horace calls them nomina certa [‘reliable debtors’] in the following
passage from Epist. 2.1 vv.103 - 105: ‘For a long time it was a pleasant
habit to be awake in the morning with the house open, to explain the
law to a client, to pay out secured money to reliable debtors’.
Those moneylenders were satisfied with interest of twelve per
cent [p.a.], in other words ‘legitimate’ interest. On the other hand
those who were dishonest or foolish, in order to enable themselves to
stipulate rates higher than twelve per cent, in general loaned their
money to bad or unreliable debtors, that is to say debtors to whom it
seemed a loan could not safely be made, say to people who were
forbidden by law or were unable, through poverty or profligacy, to
borrow at interest.
Such moneylenders Scaptius and Matinius appear to have been:
when the people of Salamis were, on account of the Lex Gabinia,
unable to find credit at Rome, those two promised to give them
money at forty-eight per cent, but on condition that it be paid in
accordance with a decree passed by the Senate. Certainly Cicero has
this opinion of Scaptius in ad Atticum 5.21[12]:
214
215
Lucius Volusius Maecianus, fl.150 a.d., wrote (i.a.) 16 books on Fideicommissa.
sicilicus was normally used to denote the forty-eighth part of an as: see Der
Kleine Pauly Band 5, p.170.
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Book 2
But to me he seemed shameless rather than foolish; for either he was
content216 with twelve per cent from a reliable debtor, or he hoped for
forty-eight per cent from an unreliable one.
Fufidius was the same type of man, for in order to dock a five-fold
profit or sixty per cent from the principal, he used to hunt down
desperate people,or minor sons [of rich men] or adolescents who were
dissolute and prodigal; in other words bad and unreliable debtors.
Listen to Horace Sat. 1.2 vv 12[-18]:
Fufidius, who is rich in estates, rich in money invested at interest,
is afraid of getting the reputation of being worthless and a scoundrel.
He docks a five-fold profit from the sum that he lends, and
the more desperate someone is, the more relentlessly he harasses him.
He hunts down [young] debtors who have only recently donned the toga
of manhood, who are still subordinate to their stern fathers. Who does
not call out:
‘Almighty Jupiter!’ when he hears this?
To the above examples one could add Macedo, the man who was the
cause of and gave his name to the Senatusconsultum Macedonianum.I
think this is shown in the very words of that decree of the Senate in
D.14.6.1, which I quote in order to shed some light on the matter from
them:
Since in addition to all the other incentives to crime with which he was
by nature endowed, Macedo also made use of debt, and since he often
provided opportunities for transgressing by his bad conduct, since — to
say no more — he loaned money to unreliable debtors, it is decreed that
no action or claim be allowed to one who has given money as a loan to a
son under paternal power, also after the death of the parent under
whose power he had been, so that those people who with that very bad
example loaned at interest could know that no son's credit-standing
could be made good by the expectation of his father's death.
The Senate calls bad debtors ‘unreliable’, and on the contrary we
have the sound debtor (bonum nomen) who in Horace (Epist.2.1
v.105) is called ‘reliable’, that is to say, not at all inconstant or
wavering. This is the sense in which Cicero seems to use the word in
ad Att. 5.21.6, where he says ‘I have sent Quintus Volusius, the sonin-law of your friend Tiberius, to Cyprus — he is a reliable man, but
also wonderfully free of rapacity.’
But the Senate means that Macedo used to search not for reliable
and good debtors and indeed a twelve per cent, or ‘legitimate’,
interest — as stern but trustworthy moneylenders at that time used to
do — but untrustworthy and bad debtors, to enable him to stipulate
216
Ernesti’s emendation is contentus non erat, i.e. ‘he was not content’.
Chapter XIII
169
interest of more than twelve per cent: this was the business of an
infamous and shameless moneylender, or at the least of a foolish one.
Juvenal gives an example in Satire 9[v.6 – 8]:
... this face of yours was more miserable than that of Creperejus Pollio,
who goes around ready to pay triple interest and cannot find anyone
foolish enough [to lend].
But greed did not only exceed the limit of interest openly, but also by
way of different fraudulent methods. The examples which I shall give
will prove interesting.
The one is in C.4.2.8, which reads as follows:
If in the place of money on loan which you requested from your creditor,
you accepted silver or draught-animals or other forms of payment
evaluated with the consent of both parties, after giving gold as security,
then even if you promised interest of more than twelve per cent to the
stipulating creditor, nonetheless only the principal which was
determined with the agreement on the value by both parties, and what
is ‘legitimate’ in terms of interest, can rightly be claimed. And the fact
that you declare the pledge which you gave to be of lower value cannot
help you at all to avoid obeying the demand for payment of this amount.
The Holoander transcript is absolutely correct in reading thus, and so
too a large number of handwritten copies, although in some there is
legitima [summa] tantum recte petitur [‘only the legitimate sum is
rightly demanded’] and legitima quantitas [‘the legitimate amount’],
as I pointed out above in bk.I, Chapter II.
The following is an example:
You have requested money on loan from Titius. Since he did not
have any (as in D.12.1.11) or pretended not to have any, he gave you
silver, or draught-animals or other forms of payment, which were
evaluated with the consensus of both of you. Then he received gold
from you as security, and stipulated interest of more than twelve per
cent. I think that this was not done unconditionally but under the
pretext of covering the loss that he would suffer as a result of the
loan, by which he was deprived, for the sake of a friend, of skilfully
worked silver or draught-animals which he fancied. This was the
custom of moneylenders.
And Ambrose can be called in on this (De Tobia c.3). These are his
words:
But when mention is made of interest or a pledge, the moneylender
relaxes his stern countenance, smiles benevolently and, as if recalling an
old family friend, kisses that same man whom he previously had denied
knowing; he calls him the pledge of a hereditary affection and tells him
not to weep. ‘I shall look at home’ he says, ‘whether I have any money,
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Book 2
for your sake I shall break the finely-worked silver that belonged to my
father; it will be a very great loss to me, for what interest will
compensate for the value of inlaid work? But for the sake of a friend I
shall not back away from the loss. When you pay me back I shall replace
it.’ And so before he gives you the money, he hastens to replace, and he
who says he is coming to your assistance with the money, is already
exacting interest. ‘On the Kalends’ he says, ‘you will give me interest; if
in the meantime you do not have the means to return the loan, I do not
demand it.’
There is a similar instance in C.4.32.16, which reads as follows:
When you claim that you have received not corn but money as interest
so that a certain measure of wheat be paid to you, and when, if that
measure is not provided on the appointed day you contend that you have
been burdened by the increase in measures in fraud of legitimate
interest, you may use the appropriate defence against a dishonest
action.
Titius has loaned money to Sulpitius, and has stipulated that not this
money - and in the case of default, its interest - be given back, but
that instead of the money, a certain measure of corn be paid, and if
that quantity has not been provided on the appointed day, there
would be increases in the measures (the Marginal Notes of Ruffardus
and Charondas have modus [‘quantity’], which I prefer to the modius
[‘a measure of corn’] of the published texts).
The question now is whether the debtor is liable. But Gordian does
not think that he is liable, but he thinks that he can use the
appropriate defence against a dishonest action: and yet someone who
loans money can stipulate that either money be given back or
something else instead of money (D.12.1.2). Furthermore, he who
stipulates interest on his money, can stipulate interest which is not
necessarily of the same substance as that which he has loaned but also
of a different substance, as was stated above. If this is indeed so, then
an action arising from this type of stipulation cannot rightly be said to
be dishonest. And so it certainly is, unless something by which the
debtor is burdened, is done in fraud of legitimate interest.
And that is what Gordian observes to happen in this instance in
which a creditor after giving money in loan, had to stipulate interest,
namely of twelve per cent, on his money, whether it be the same or
a different substance. But now he has stipulated not the twelve per
cent which the original agreement required, but higher interest, as if
on the basis of corn loaned (and this pretence of an obligation was not
true but far-fetched): for in the time of Gordian the interest on wheat
— and all other produce — was not limited to twelve per cent but
could exceed it, as I have shown elsewhere. So that matter is rightly
called dishonest, because it is felt that it was devised to fraudulently
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171
evade the legitimate rate of interest which was owed in terms of
money.
There was also another guise of concealing abuse of interest,
under the term ‘penalty’. Suppose a creditor stipulates not interest
higher than is legitimate, but a penalty: [the question is] whether the
accepted ‘penalty’ which is owed, is above the limit [of legitimate
interest]? For that limit is imposed not on a penalty but on interest.
And there is a vast difference between interest and a penalty. For
interest is added only to sums of money, but a penalty also to objects
and services. Furthermore, interest is owed for the use of the money
loaned, but a penalty does not depend on use but on the outcome of
the condition; and finally it has as its purpose the restraining of one
who does not deliver what he has promised. The stipulation of a
penalty is therefore valid even when it exceeds the limit set [for
interest] by the law, whereas the stipulation of interest is not valid if
it goes beyond that law.
However, if the creditor has stipulated monthly penalty, what
difference does it make whether he calls it ‘penalty’ or ‘interest’? For
since interest is also promised on a monthly basis, then if he does not
call it this but a ‘penalty’, he does not change the issue, but the
name. I do not even mention the fact that interest which is promised
as a result of default is also subject to this condition if the money is
not paid on the appointed day, and it is therefore called a penalty. So
Modestinus very correctly says (D.22.1.44) ‘No one can stipulate a
penalty instead of interest above the limit allowed for interest.’
But what is the position if he has not stipulated penalty on a
monthly basis, but a single penalty for the whole period? Of course in
order that if the debt is not paid on the day it becomes payable, twice
or three times or four times the amount [of the penalty] must be paid.
And this is the case in C.4.32.15 and D.19.1.13.26. There could be
doubt whether it would be somewhat higher than in the above
example, for interest quite often increases at intervals of time,
whereas a penalty is imposed once, and not more often. A penalty is
therefore distinguished from interest, and although interest cannot
exceed twelve per cent, nothing prevents a penalty of double, triple
or quadruple [such rate] being undertaken (D.21.2.56; D.45.1.38.17).
But this discussion, too, arrives at no other conclusion than that that
penalty indeed appears not to have been added in conflict with the
wording of the law, but in order to circumvent the law. And when the
law forbids interest beyond the limit, it does so to prevent a creditor
from carrying off, under whatever pretext, a profit on his principal
beyond that which falls within the limit imposed by the law. And of
course, if someone stipulates higher interest than the law allows, he
is acting against both the spirit and the wording of the law, because
he acts not only against that which the law intended but also against
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Book 2
what it said. But if the creditor does not stipulate interest but in the
place of interest [a penalty of] twice or three times or four times the
amount, he is indeed doing nothing which is in conflict with the
wording of the law, but he is evading its intention, because he is
acting against that which the law wanted although he does not act
against what it has said. And that is what Modestinus points out in
D.22.1.44 when he says that no one can stipulate a penalty instead of
interest above the limit allowed for interest. And not only he says so,
but also Gordian in C.4.32.15 and Ulpian in D.19.1.13.26.
And yet the stipulation of a penalty can rise also to double, triple
or quadruple (D.21.2.56; D.45.1.38.17), unless something is done with
a view to evading the law which prohibits interest rates of more than
twelve per cent per annum. And this appears to happen when from
the outset a sum of money is owed by a certain day, and money is
promised if that sum is not paid, as is the case in D.19.1.13.26. But
when not money is owed from the outset, but a corporeal object or a
service, and then if that is not paid a penalty is promised, of whatever
nature that may be, the opposite must be said, namely that nothing
is being done with a view to evade interest, because interest does not
lie in respect of objects or services but in respect of sums of money;
but a penalty is owed not only on sums of money but also on objects
and services.
There were still more types of fraud by which the spirit of law was
circumvented. About them Justinian (C.4.32.26.4) says the following:
‘... since the freedom which creditors enjoyed to deduct or retain
something from the money which had to be paid as interest, in the
form of siliquae217 or gifts or for whatever other purpose, has been
prohibited.’ Thus Justinian, but I shall elaborate somewhat more fully
on what his intention was when I explain these words in the next
chapter.
But the Ancient jurists considered whatever was carried out above
the limit — be it openly or under a pretext — to be null and void,
inasmuch as it exceeded the legitimate limit; nonetheless they
allowed the rest to be claimed, no doubt to prevent what was useful
from being marred by what was useless. Unless one accepts the
opinion of the excellent Barnabas Brissonius (Select. Antiq. bk.3 c.1)
that it had been forbidden by the lex Gabinia that justice be
administered on the strength of any promissory note in which interest
higher than twelve per cent per annum had been promised, and that
this was suggested by Cicero in Ad Atticum bk.5.21. But this is not so,
and I refuted it in advance in Chapter IV of this book.
217
a small silver coin: it could here perhaps have a more abstract meaning (‘bribes’?)
(See n.139 above).
Chapter XIII
173
But indeed in our law, which is contained in the Pandects, nothing
is closer to the truth than that the part which exceeds the limit of the
law is certainly rejected, but that the rest can be claimed. This is
clear from D.22.1.29 and C.4.2.8, and Papinian intended the same
when he said (D.22.1.9):
I replied that a stipulation that double the amount (that is, a further
equal sum above the limit of legitimate interest) be paid if the debt on
money loaned at interest has not been settled by an appointed day, is
not legally valid. Therefore a stipulation will have validity in accordance
with the limit of each period, after the superfluous amount has been
deducted.
We have, for example, a hundred gold coins that have been given
in loan with a stipulation that if that money is not paid by a certain
day, for example within a year, the debtor will by way of a penalty
pay double the amount, that is to say two hundred gold coins. Such a
stipulation (Papinian uses the word stipulatus [instead of stipulatio],
as in D.20.1.1.3 and D.22.2.4.1) of a further equal amount, that is to
say double the amount (D.39.4.9.5). It is reasonable, of course, as
long as it falls within the bounds of legitimate interest, but to the
extent that it exceeds that limit, it is not legally valid; for if a debtor
has defaulted in making payment, he does not immediately owe a
further equal amount, but after the first year at least the legitimate
interest is owed, that is to say, twelve gold coins, then after a second
year a second twelve per cent, which when added to the previous
amount makes twenty-four gold coins, and so forth; for that is the
limit of legitimate, or twelve per cent, interest. And this is what
Papinian has in mind when he says ‘a stipulation will have validity in
accordance with the limit of each period, after the superfluous
amount has been deducted.’
What Paul writes in D.22.1.20 is likewise acceptable: ‘The fact is
that only illicit interest which has been added to the principal is not
owed, but it does not vitiate the principal.’
And these things applied where interest had not been paid. But
what if it had been paid? There seems to have been uncertainty
whether the interest could be claimed back, for in Sentent. bk.2
tit.14.9 Paul said: ‘Interest which has been paid above twelve per
cent reduces the principal, and can be claimed back once the
principal has been amortised.’ Paul means that interest paid above
twelve per cent is reckoned into the principal if it has not been paid
back and therefore still exists: but after the principal has been
amortised by payment, interest which has been paid can be claimed
back as if not owed.
But on the other hand Ulpian says (D.12.6.26):
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Book 2
If someone has paid not the principal but interest which was not owed,
then he will not be able to claim back if he has paid the interest on the
principal owed: but the Deified Emperor Severus decreed in a rescript
(which is the law that we follow) that it could indeed not be claimed
back but should be reckoned into the principal; and if thereafter he pays
back the principal, then the principal can be claimed back as if it was
not owed. Interest above the legitimate limit is claimed as if a principal
is not owed, exactly as if the principal was paid beforehand. And what if
he paid it at the same time? It can be said that he then also has the right
to claim back.
This is the reading of the Florentine edition, and the Greeks also read
it correctly, although other books have sorti debitas218 [‘owed to the
principal’] and Johannes Robertus approved of that reading (Sentent.
Jur. bk.2 c.16). However, Ulpian is saying that interest which was paid
above twelve per cent is not claimed back, even though not owed, as
long as it is (interest) on the principal owed, and he adds that the
Deified Emperor Severus decreed in a rescript (and we follow that
law), that if someone has paid above the legitimate limit, it can
indeed not be claimed back, but must be reckoned into the principal,
and that if he thereafter paid the principal, that principal could be
claimed back as if it was not owed, and that interest paid above the
legitimate limit could be claimed back as principal not owed, exactly
as if the principal had previously been paid. And what if he paid at the
same time? Ulpian says that it can be said that then, too, he has the
right to claim back (D.122.6.26).219
So Ulpian was of the opinion that, whether the principal was not
yet paid or whether it had already been paid, the interest on the
principal owed which had been paid above the legitimate limit is
reckoned into the principal, but that the interest itself is not claimed
back, as if it was not owed. This is perhaps because interest owed on
account of default is considered to be equivalent to a penalty, which
can not be claimed back after it has been paid (D.12.6.42).
You have the variety of opinion among the Ancient jurists, which
Emperor Philip220 points out and at the same time revokes in
C.4.32.18 where he says:
It is declared that even if interest which was not owed, was not paid
before the principal was returned and could therefore not reduce the
principal, but was given to the creditor after the principal had been
returned can, since the variety of opinion in the ancient law has now
been removed, be claimed back after the account has been settled.
218
219
220
Apparently for Ulpian's sortis debitae (‘on the principal owed’).
Noodt has simply repeated (literally) the passage already quoted.
Krueger's edition attributes this to Diocletian and Maximian, not to Philip.
Chapter XIII
175
Besides these precautions against illegal interest which I have
mentioned, there once was also a fourfold penalty, and Asconius
Pedianus recalls this in his In Divinat. p.27, in the following words:
‘Some people give the name quadruplatores to those accusers of
debtors who when convicted are sentenced to a fourfold penalty
(quadruplum) for having gambled or loaned money at higher rates of
interest than are customary.’ But Cato, too, must be understood in
this sense when he says in his De re rustica: ‘For our forefathers had
the view, and so laid down in their laws, that a thief should be
condemned to a double but a moneylender to a fourfold penalty.’
Indeed that penalty which had become obsolete through disuse,
was re-introduced by the Emperors Valentinian, Theodosian and
Arcadius (C.Th.2.33.2) with these words:
Whoever extorts anything more than the twelve per cent rate of interest
allowed by the law, due to the opportunity provided by [a debtor’s]
need, shall, being restrained by the obligation of a fourfold penalty,
without delay, without intermission and forthwith, give back what he has
taken. But those who will be exposed after formerly prowling in search
of victims, with a similar zeal, must restore what they have extorted
twofold.
Chapter XIV
Justinian’s rules on interest
[Summary]
On the new definition of interest given by Justinian. C 4.32.26.1 is
carefully and thoroughly dealt with.
*
*
*
Since the situation regarding interest was as I have set out above, and
since the enforcement thereof appeared to be neglected more than
was in the interest of the state, Emperor Justinian judged that he
would be acting correctly and appropriately if he gave it greater
personal attention. And since he was aware that money did not hold
the same advantage for everyone, but that to have money or to be
without money was of more importance to some people and of less to
others, he defined the limit of interest in various ways, in accordance
with the various circumstances of people, allowing higher rates of
interest to some and lower rates to others. His purpose with this was
of course that one and the same payment should lead not to the
satisfaction of a moneylender's greed, but to the restoration of loss
which he appeared to suffer, or profit he may seem to have been
deprived of; and finally his purpose was that just as in the case of all
other transactions, so too in the case of interest and foenus equality
between contracting parties, in conformance with the ius gentium, be
preserved.
176
Chapter XIV
177
That Imperial Decree is found in C.4.32.26 par.1, more or less in
the following words:221
I have considered it necessary also to lay down a general sanction222
regarding the amount of interest to be allowed, bringing down their
severe and extremely heavy burden to a more moderate level. And I
therefore command that distinguished personages, or those who precede
them, be not at all allowed to stipulate — in whatever type of contract,
be it of negligible or very great value — more than a third part of a
centesima [i.e. four per cent p.a.] in the name of interest.
But such persons as are in charge of workshops or run some legitimate
enterprise must moderate their stipulation (in the name of interest in
whatever type of contract) to two-thirds of a centesima [i.e. eight per
cent p.a.].
But in the case of overseas contracts, or in the conveyance of specific
things as interest-bearing loans, it is permissible to stipulate only up to
twelve per cent per annum, but not to exceed that, despite this
concession having been made in the old laws.
But [all] the rest can stipulate only half a centesima [i.e. six per cent
p.a.] as interest; and also in all other cases in which interest is
customarily exacted without a stipulation, that amount of interest may
in no way be increased.
Nor may a judge raise the above-mentioned assessment under the
pretext of following the customary law obtaining in his region.
But if anyone were to act contrary to the limit laid down by this decree,
he would have absolutely no action regarding the superfluous amount,
but also, if he received [such an amount] he would be compelled to
reckon it into the principal, since the freedom which creditors enjoyed,
namely to deduct or retain something from the money which had to be
paid as interest in the name of siliquae223 or gifts (sportulae) or for
whatever other purpose, had been interdicted. For if something of this
nature is done the initial debt will from the beginning be reduced by
that amount, so that it is forbidden to exact the very part which must be
reduced and also the interest on it.
But in also curtailing the fraudulent practices of creditors who in terms
of this law are forbidden to stipulate higher interest and then substitute
intermediaries to whom this prohibition does not apply, I command that
should such a thing be attempted, the interest must be cut back and
calculated in the same way as would have been necessary if the
[creditor] who put forward someone else in his place, had himself
stipulated; and in this case I forbid under pain of punishment that even
the introduction of an oath be disallowed.
The first provision made by the Emperor concerns ‘distinguished
personages and those who precede them.’ On whom, if so inclined,
one can consult the Most Honourable Jacobus Gutherus (De officiis
221
222
223
Noodt here rather arbitrarily separates sentences with dagger () which I have
omitted.
i.e. a clause enforcing a penalty for the violation of a particular statute.
See n. 139. Noodt explains the terms siliquae and sportulae on p.180 below.
178
Book 2
domus Augustae bk.I, c.4, 10 and 11.) Anyway, the Emperor allows
these personages to stipulate interest ‘in whatever type of contract,
be it of negligible or very great value’ only up to ‘a third part of a
centesima’, that is to say rates of interest up to four per cent p.a. And
he seems to have been persuaded to grant them this and no more
especially by the fact that the Ancients deemed this rate of interest
to be very low, and also because it was fitting that those personages
be averse to stinginess and covetousness. It was his intention that
through these personages other people would be assisted with money,
and that they in turn be compensated by the interest on the fruits of
that money, but without a suggestion of miserliness or greed. And
since such a suggestion did not seem to be evoked by interest of four
per cent, Antoninus Pius too, according to Capitolinus224 (Life of Pius
c.2) ‘applied an interesting-bearing loan of four per cent, that is to
say at the lowest rate of interest, in order to help as many people as
possible by means of his patrimony.’ And also Alexander Severus,
according to Lampridius225 (Life of Alexander Severus c.21) ‘applied
a four per cent interest by the State.’
This, then, is what Justinian had to say about distinguished men
and those who preceded them.
‘But’ says Justinian, ‘such persons as are in charge of workshops
or run some legitimate enterprise must moderate their stipulation in
the name of interest in whatever type of contract, to eight per cent
per annum’. Workshops are factories or places allocated for
merchandise, as in C.12.40[41]1,226 and finally shops for trading.
Hence ‘workshops’ and ‘shops’ are used together in C.1.3.2, and in C.
Th.de Espicopis, Ecclesiis et Clericis 1.10. We therefore understand
that interest of eight per cent p.a. is granted to any businessman
(negotiator) who runs a legitimate business, even to bankers, for that
they, too, are included in the term negotiator and ‘are in charge of
workshops’ is shown in C.12.34[35].1.1, to which please add C.Th.de
lustrali conlatione bk. 13.tit.1, l.18. And rightly so, for it is their
profession to pursue profit, and for this purpose to preserve money
not in use, or to receive it from others at interest; indeed, it would
seem unfair that those who incur expense in order to help others with
money should not recover that outlay (Novellae 136 c.4). Yet
Justinian did not grant them the right to stipulate twelve per cent
p.a., because although twelve per cent p.a., was ‘legitimate’, it was
nonetheless considered to be ‘blood-stained’, if we accept Seneca's
judgment; and it was charged only by the harshest and severe
moneylenders, as is clear from Cicero ad Att. 6 ep.1 and Seneca
224
225
226
Julius Capitolinus, a fourth century biographer.
Aelius Lampridius, co-author of the Historia Augusta.
The only relevance of this passage seems to be the use of the verb deputare for
‘allocating’.
Chapter XIV
179
Ep.118. But Justinian did not want to indulge the avarice of
moneylenders, but to advance the common weal.
Justinian then commanded that ‘[all] the rest can stipulate only
half a centesima as interest; that is to say six per cent p.a.’ This rate
appeared to the Ancients to be ‘courteous and moderate’, as has
elsewhere been shown with reference to Pliny Natur.hist. bk.14.c.4.
Justinian ordered that this limit be more fully observed by the
Treasury, whether the debtors promised interest to the one who
initially stipulated, or whether actions had in some way or another
been devolved upon a creditor by previous creditors (C.10.8.3). I have
shown in Chapter X of this book that this also obtained previously.
Then Justinian grants a stipulation for twelve per cent to all,
whether they are businessmen or not, but not to all indiscriminately,
but only in certain cases.
The one case is that of ‘overseas contracts’, in which money is
given to be conveyed overseas at the risk of the creditor. For when a
creditor in terms of an agreement takes upon himself the risk of the
money which actually belongs with the debtor, it would not be unfair
that the assessment of this risk be retrieved from the debtor at higher
interest. But that line of argument in effect means that maritime
interest would not be lower than twelve per cent; it does not prevent
it from going above it, although Justinian forbids this, too, while the
ancient law allowed it. And therefore it was acceptable to the mores
of the times (on which see the Most Honourable Hugo Grotius
Introd.ad. jurispr. Batav. bk.3 c.XI) to set aside the restriction of
Justinian, and to return to the ancient law in terms of which (as I have
reported in Chapter VII of this book) not the law but the benefit of the
parties to the agreement determined the limit for the maritime
interest, in proportion to the greater or smaller risk for which the cost
to the creditor ought to be retrieved through that interest.
There you have the first case in which Justinian allowed a
stipulation of twelve per cent p.a.
The second case is that of the ‘conveyance of specific things by
way of loan at interest’. But in Chapter VIII of this book I pointed out
that those ‘specific things’ (species) are also called ‘fruits’, on the
authority not only of others but also of Jerome (ad Ezechielem bk.6,
c.18 p.206); at the same time I showed why the Ancients saw fit to
allow a higher interest from specific things loaned than on money that
was loaned.
Furthermore the Emperor, having established the amount of
interest, went on to forbid that it be increased by stipulation or ‘even
in all other cases in which interest is customarily exacted without a
stipulation ... If anyone were to act contrary to the limit laid down by
180
Book 2
this decree (he commanded that) he would have absolutely no action
regarding the superfluous amount, but also if he received [such an
amount] he would be compelled227 to reckon it into the principal’. He
does not indeed reject the entire stipulation, but considers that which
has illegally been added above the limit as not having been added,
obviously with the purpose that what was otherwise advantageous
should not be marred by what was not advantageous. Finally he
decrees that if anything more than would be legal in terms of this law
is exacted, then the principal is to be reduced by that amount.
There was at one time also a fourfold penalty, as has been shown
above on the authority of Cato's De re rustica and the in Divinat. p.
27 of Asconius Pedianus; and it was pointed out that this penalty,
having become obscured through disuse, was thereupon re-introduced
by the Emperors Valentinian, Theodosian and Arcadius (C. Th. de
usuris l.2). But since that law was not included in the Codex by
Justinian, it appears that he did not approve of it.
In order also to curb fraudulent practices of moneylenders, the
emperor very wisely laid down a prohibition that anyone ‘deduct or
retain something from the money which had to be paid as interest in
the name of siliquae or sportulae or for whatever other purpose.’ Now
a siliqua is, on the authority of Isidore, a twenty-fourth part of a
[gold] solidus: hence the name siliquaticum [for a sales tax], when on
market days half a siliqua for every solidus received in the trade of
whatever merchandise, is exacted from the vendor for the treasury,
and likewise another half from the buyer (see Cujacius Obs. bk.16
c.23).
Furthermore, sportulae are gifts (munera); and it was the custom
of greedy moneylenders (in order to prevent appearing to stipulate
any interest, or at least any higher than was fitting) to accept, or to
withdraw, ‘small presents’. Jerome recalls (In Ezechielem bk. 6 c.18):
‘Others are accustomed to receive small gifts of different kinds in
return for money lent at interest, and they do not understand that
whatever they receive that is more than what they have given is
called interest or “superabundance”’. When dealing with ‘the just
man’, Lactantius (Divin. Instit. c.18) also says: ‘He should not receive
a gift from a poor man, so that if he himself has provided something
it may be good inasmuch as it is gratuitous.’
But the emperor does not only prohibit the deduction or retention
in the name of siliquae or sportulae, but furthermore also ‘for
whatever other purpose.’ What this means was shown to me by
Ambrose in his De Tobia c.14, and although this is a very long passage
I believe I must quote it verbatim. It reads as follows:
227
Noodt omits the compelletur of the original.
Chapter XIV
181
And because many people avoid the precepts of the law when they lend
money to tradesmen, they do not exact interest in money, but take from
the merchandise profits as interest, and so let them listen to what the
Law228 says: ‘And you will not’ it says ‘accept the usury of food or of all
the things which you lend your brother on interest’, for that is
defrauding and cheating the Law, not observing it. And do you think that
you are acting righteously inasmuch as you are taking something from
the tradesman as if in exchange? Then he himself commits fraud with
the price of his merchandise, from which he pays you ‘interest’; you are
the initiator of, the partner in his fraud; whatever he gains fraudulently
is to your benefit. And food is interest, clothing is interest, and
whatever is added to your principal is interest. Whatever name you may
wish to put on it, it is still interest. If it is legitimate, why do you shrink
from using the word? Why cover it with a veil? If it is not legal, why do
you demand increase? What is worse, is that this is a moral fault of very
many people, and especially the rich who under this pretext fill their
storerooms. If someone wants to present a banquet, he sends [a slave]
to a merchant to carry off a flask of absinthe for himself without
payment; straight to the innkeeper to ask wine from Picenum or from
Tyre; to the butcher to procure a sow’s womb; to someone else to
provide him with apples. And then they call ‘generosity’ what is offered
at the expense of others.
But if anything of this nature is done, the Emperor decrees, the initial
debt will from the outset be reduced by that amount, so that it is
forbidden to exact the very part which must be reduced and also the
interest on it.
Furthermore, since he realised that those people who were
allowed to stipulate only four per cent, would give interest-bearing
loans not in their own name but in the name of others who did have
the right to stipulate higher interest, he also commanded that if such
conduct should be exposed, the interest should be calculated not as
if it had been brought into the stipulation by the frontman but as if he
who had brought in that frontman had stipulated it, and therefore not
the higher but the lower rates of interest should be paid to the
creditor. And if there should be any suggestion of that fraudulent
practice and yet it could not be proved, the Emperor decided that the
debtor had the right to compel the creditor to take an oath that he
had stipulated in his own name and not in that of another person.
Now he decided that these rules apply if the interest has been
promised by stipulation. But what then if it is owed without
stipulation, in accordance with judicial discretion? I think that the
same principle applies, and that the following words of Justinian point
to this: ‘But [all] the other people can stipulate only half a centesima
[i.e. six per cent] as interest; and also in all other cases in which
interest is customarily exacted without a stipulation, that amount of
228
Deuteronomy 29 v.19.
182
Book 2
interest may in no way be increased. Nor may a judge raise the abovementioned assessment under the pretext of following the customary
law in his region.’ A judge can therefore at his discretion fix interest
at six per cent p.a., or lower if that is the custom in his region, but he
cannot fix higher interest. This is based on the precedent of the
ancient law in terms of which a judge could also lay down the rates in
accordance with the custom of the region, as long as he kept within
the legitimate or twelve per cent rates. This is deduced from the
words of Papinian which I quote from D.22.1.1:
When there is a dispute in a bona fide action, the limit of the interest is
decided on in accordance with judicial discretion and in accordance with
the custom of the region where the contract is concluded, but only in as
so far as it does not violate the law.
Someone might be of the opinion that the last words were added by
Tribonian from the above line from Justinian. But I think it is clear
from what I have said in chapters V and VI of this book that it is more
probable that these words are of Papinian; although if they are now
explained in the sense that Justinian [later] intended, I would not
object to them taking on a meaning from his law which they did not
previously have. This is certainly how it appeared to Theodorus
(Basilic. bk. 23, tit.3, in the scholium on that passage on p.388
tom.3), when he said:
In bona fide actions the judge is allowed to investigate interest and to
determine it according to those rates which are most frequently applied
in the region where the contract was concluded, unless the Law
disallows it; that is to say, the judge must follow the custom of the
region when the interest most commonly applied in the region does not
exceed six per cent p.a.
But if that is the case, I am afraid that Claudius Salmasius can seem
to have slipped up (De modo usurarum c.4 p.181 ad fin.) when he says
the following about four per cent rates:
It seems that Justinian prescribed these interest rates for all bona fide
contracts which were once customarily established in accordance with
judicial discretion in accordance with the custom of the region, provided
that they did not exceed the limit of the legitimate interest.
But what if the law in some particular case wanted higher interest to
be awarded? Suppose a guardian secretly turned to his own use the
money of the ward whose guardianship he administered? The ancient
Jurists write that he was bound by the decrees of the Emperors to the
‘legitimate’, or highest or heaviest interest — that is to say, twelve
per cent p.a., as I have pointed out in Chapter V of this book. What
will we say after Justinian's decree? Is he liable for twelve per cent or
for six per cent? But in my opinion it is six per cent, given the words
of Justinian quoted above. Although these words are general and
Chapter XIV
183
vague, they clearly convince us that with this law he departed from
the former statute. But this is still more clear from C.7.54.3.1 in
which Justinian expounds as follows:
For if in terms of an action on judgment-debt (actio judicati) interest of
twelve per cent runs at any rate, but this rarely happens in terms of
contracts in the provisions excluded only in our law, the very necessity
of things brought about an injustice in this matter. And this is a settled
matter for the Greek commentators (Basilic. bk. 38 tit.17 tom.5 p.188).
In his exposition in C.5.56.1 the Emperor Alexander decrees as follows:
‘At one time it was decided that a guardian or a trustee must pay the
legitimate interest on the money which he has channelled to his own
use.’ But what Alexander calls ‘legitimate interest’ the Greeks
interpreted as six per cent on the strength of the pronouncement of
Justinian, and yet in view of the usage in the time of Alexander (with
which I dealt in chapter V of this book) it is clear that that Emperor
understood it to be not six per cent but twelve per cent.
However, money owed in terms of a judgment-debt must be excluded
from this part. Justinian laid down in C.7.54.2 that if such money is
not paid within a four month period after passing of sentence, interest
of twelve per cent is to be exacted on it. At one time Antoninus
confined that interest after the legitimate period to the benefit of the
Treasury (C.7.54.1), as I have already pointed out in chapter X, with
reference to the Basilica229 and the written text of the law itself.
But after Antoninus, a debtor began to be held liable for double
centesimae [i.e. twenty-four per cent] if given notice to pay three
months after judgment. This was so decided by the Emperors
Gratianus, Valentinian and Theodosian (C.Th.de usuris rei judicatae),
and — as they themselves say — on the precedent of possessors in bad
faith, who were usually sued in terms of the formulae in ancient law
for twice [the value of] the fruits. But Justinian abolished that old law
(C.4.32.26.1), and for the two centesimae which used to apply in this
type of case he substituted half a centesima [i.e. six per cent]. But
eventually he changed this law too (C.7.54.2), bringing back the
twelve per cent, and limiting delay in payment to a four month
period. Indeed, it can be inferred from the signature and also the
content of both passages that C.7.54.2 was carried after C.4.32.26.
I would also not want to leave out the ruling of Justinian in
C.5.12.31.8, namely that an outsider who has promised a dowry for a
woman who is not in his potestas, and does not pay it within two
years, must then be held liable for interest, but not up to six per cent
p.a., but only up to four per cent p.a. He ruled likewise in C.5.13.1.7
that if a husband neglected to give back movable things or incorporeal
229
The Basilica (n.pl.) in sixty books was an early 10th century abridged Greek
summary of Justinian's codification (cp.Berger s.v.), often referred to by Noodt.
184
Book 2
things after one year, or all other things directly after the marriage
has been dissolved, then he must deliver the interest on the
estimated value of all things which are not included under
immovables, to be introduced in good faith up to four per cent p.a.
But not only the things which I have mentioned here were newly
decreed by Justinian: he also prohibited the imposition of interest on
interest (C.4.32.28 and C.7.54.3) even if that interest had been
incorporated in the principal either by stipulation or by a judgment.
But since I have already dealt with these aspects in chapter XI of this
book, I shall not attend to what has been attended to.
Book 3
Chapter I
On the sources of interest recovery
[Summary]
The causes of interest appear to be twofold: they lie either in an
obligation or else in accordance with judicial discretion. In an
obligation lies interest owed in terms of a will or in terms of an
agreement. In contracts which are of strict law, interest is owed not
in terms of a pactum but in terms of a stipulatio. What is the position
if interest has for a long time been paid on the basis of consensus? A
careful and precise interpretation is given of several fairly difficult
passages.
*
*
*
I have completed the first two sections of the work which I undertook.
There now remains a third, which deals with the causes through which
interest appears to come into existence or to be done away with. But
I shall firstly set out the causes through which interest comes into
existence. Papinian divides those causes into two parts (D.36.1.58),
for he says that interest lies either in an obligation or in the
competence of a judge.
An obligation, again, arises either from a will or from an
agreement. It firstly comes from a will, and rightly so. For inasmuch
as the law in the Twelve Tables dealing with wills lays down that
‘according as a paterfamilias (‘head of a household’) made a bequest
187
188
Book 3
regarding his money, so shall there be a right (jus)’,230 what wonder
is it that when interest is bequeathed an obligation arises in terms of
the will, as if in terms of a contract? This is what Ulpian accepts in
D.33.1.3.6, in the following words:
If a certain amount of money is bequeathed to someone, and until such
time as it is paid a fixed thing is paid year by year as interest, as
instructed by the testator, then the legacy is valid; but in the case of the
interest it ought to be valid only to the extent to which it does not
exceed the acceptable limit of interest.
[An example:] A testator has bequeathed a certain sum to Sejus, and
has instructed that until such time as that sum is paid, a fixed thing
be paid year by year. Ulpian believes that the legacy is valid, precisely
as if the testator had instructed that interest be paid to Sejus — at
least ‘to the extent that it does not exceed the acceptable limit of
interest.’ For although with the words of the law of the Twelve Tables
‘as he made a bequest of his thing, so shall there be a right’ an
extremely wide power to bequeath is granted, nevertheless, as
Pomponian observes, it is restricted both by the interpretation of the
laws (leges) and by the authority of those who drew up the laws (jura)
(D.50.16.120), indeed so that no-one may be able to make a provision
in his will that the laws do not apply in that will (D.30.55). Therefore
interest by obligation arises firstly from a will.
Secondly interest is owed in terms of an agreement, but not any
agreement, for as Paul writes in Sentent.bk.2, tit.14:
‘If a bare agreement regarding the payment of interest has been
concluded, it has no legal force’, and he adds the reason, which is ‘for
among Roman citizens an action does not arise from a bare agreement’.
Interest is therefore not owed in terms of a bare agreement, except
in terms of natural law: in civil law it is also owed on the grounds of
a stipulation (D.46.3.5.2). Hence Antoninus Pius says in C.4.32.1:
If after prior questioning, that is to say after a stipulatio, as in Seneca
De beneficiis bk.3.15, “that creditor is not satisfied with the questioning
if he has not also bound his debtor by a written signature” a promise of
interest is shown to have been properly made, that interest is owed
quite rightly (optimo jure).
This is of course so because in the latter case the interest can not only
be retained but also demanded, whereas in the former case, although
it can be withheld it can however not be demanded. And this, Severus
and Antoninus decreed (C.4.32.3), the more rightly so in cases of
strict law, say for example in a case of money lent on interest;
230
ROL Table V.3 in Warmington's edition (Loeb). He takes legassit as ‘bid’ and
pecunia as ‘chattels’.
Chapter I
189
because agreements (pacta), even when added immediately to a
contract of strict law, are not part of a contract even when they
enlarge it; and they do not fashion an action;231 although if they
reduce it we may generally use this law (ius) against the decrees of
the law, so that they may be included on behalf of the debtor, and
therefore by virtue of the right itself do away with an action, as I have
previously shown on the basis of D.12.1.11.1 and l.40, and other
passages, and so I shall show more fully on the Edict concerning
agreements. But the matter is indisputable, and Africanus clearly
writes in D.19.5.24 that interest on borrowed money is not owed if it
has not been entered in a stipulation. And Emperor Antoninus also
says (C.4.32.7) that a creditor must provide his documentary proof, if
he can, that he stipulated interest. Although if that is not the case and
it is possible to prove in another way that after prior questioning a
promise of interest was made, that interest is owed quite rightly.
(C.4.32.1).
For the matter again comes down to this: whether interest was
promised in a stipulation or not.
This applies to such an extent that if at some time interest was
paid by mutual consent, an obligation for the future does not appear
to be established (C.2.3.7 and 28), because although that payment is
very useful with a view to an agreement, it is nonetheless not
sufficient regarding the legal formalities that interest requires. And
this obtains not only in the case of interest but also in the case of a
freedman's services, as Modestinus writes in Bk.1 of his Regulae
(D.38.1.31):
If services have not been imposed on him, a slave who has been
manumitted can not be compelled to perform services which he did not
promise, even if he promised them of his own free will, at some time or
another.
This is of course so because a freedman must eventually perform
services for his patron if he promised them by oath or stipulation. And
if at some time he delivered those services of his own free will, then
that can be useful for the patron with a view to proof of a pact, but
it cannot help him with a view to the moral obligation of an oath or
the legal formalities required by a stipulation (D.38.1.3, 5 and 7).
These matters are clear and true. But Antoninus casts a shadow
on them in C.6.42.1 with the following words:
If you prove that Demetrius requested his mother and her heir to provide
you monthly with food and annually with clothing, and that she complied
with the wish of her son over a long period — that is to say, in such a
231
actionem formant, i.e. cast an action in proper legal form.
190
Book 3
case, for not less than three years — and paid the food and clothing, you
will be successful in your request that those things be paid also for the
future, and that whatever was not paid in the past now be discharged.
But in order to understand the meaning of this obscure passage, first
imagine a legally ineffective fideicommissum, as is put forward in
C.6.42.2: for if it is thought to be legally effective, what would be the
sense of questioning or defining it? For the food, even if never paid,
is owed in terms of a legally effective fideicommissum. (D.34.1.18.
1).
Then look at the following specific instance:
Demetrius instituted his mother as heir and by way of a
fideicommissum asked her to provide food on a monthly basis and
clothing on a yearly basis to Sejus. After the death of Demetrius it
appeared that the fideicommissum was legally ineffective: the
mother therefore owed Sejus nothing, even though of her own accord
she honoured the wish of her son and provided the monthly food and
the annual clothing, and did that not only once but over a long period,
that is to say, as the law has it, for not less than three years.
Thereupon she refused to provide those things, and the question
arises whether she is bound to deliver. The Emperor says that if it is
proved that Demetrius asked his mother to provide Sejus with monthly
food and an annual wardrobe, and in honouring the wish of her son she
provided those things over a long period, that is to say, for not less
than three years, it is preferable that the mother be held liable for
the future to render those things, and that she be discharged from
what might not have been delivered in the past. Longlasting delivery
therefore seems to have the effect of admitting232 a future
obligation. But do not say this, for if the fideicommissum were to be
legally ineffective and the heir voluntarily delivered (the bequest) for
a long time, that is to say over a period of no less than three years,
she is liable for its delivery in future, no doubt because by that so
frequent and consistent delivery she appears to have approved the
will of the deceased; and this is sufficient for confirming the
fideicommissum, that is to say, to admit an obligation on the grounds
of the will of the deceased. (C.6.23.16.1).
The same applies, in terms of a decree of Justinian, if someone
such as a long-term leaseholder (emphyteuta) has over a long period
paid a revenue (reditus) or a fixed rent (canon) to the owner of a
farm, for such a person is also held liable for the payment of this
(C.11.48[47].20) — for no other reason than that with such repeated
payment of the revenue he is considered to have agreed with the
232
inductio — could possibly mean exactly the opposite — see Berger s.v. inducere.
Chapter I
191
owner on emphyteusis233 and nothing more is required for the
establishment thereof. (C.4.66.1; Inst.3.24.3)
But it is not the same if interest is very often paid in terms of
agreement, for the stipulation required for interest is not introduced
thereby. Only prior agreement is recognized, which was formerly
legally ineffective, and also now remains legally ineffective since it
effects only a bare agreement from which no action in civil law arises.
And that is how it is: regular and long-term payment may well very
greatly help with a view to the proof of an agreement, yet because it
is not sufficient regarding the legal formalities of a stipulation, it does
not produce a cause or assumption of an obligation for the future,
although very learned men hold different views on this.
And among these is Papinian, in the following words (D.22.1.6):
When an actio de in rem verso234 was brought against an heir, and the
question of interest arose, the Emperor Antoninus judged that interest
should be paid for the reason that the master or father himself had paid
such interest over a long time.
But this is not so; at least consider what happened, which is this: a
son, or a slave, received money in loan, and by way of stipulation
promised to pay back that money and the interest on it to the creditor
(for that is how I see it, and what follows will show it is so.). Over a
long time the father, or master, paid the interest. After his death, the
creditor claims interest from the heir with an actio de in rem verso.
It is indeed so that interest here comes into consideration, but — and
this must be noted — solely if it was included in a stipulation.
(D.15.3.10.5) Furthermore, the heir does not deny that interest was
thus promised by the son or the slave, but (as can be gathered from
the beginning of the chapter) he does deny that the money on which
the interest is claimed, was converted to the use (‘in rem versam
esse’) of the father or the master, and that, although it was promised
by the son or the slave, he owed it in the name of the father or of the
master — obviously because interest cannot be promised other than
on money owed. So far the heir: but what does the creditor say?
The creditor says that the heir is groundlessly refusing to pay
interest; that interest was not only promised by the son or the slave,
but that it was also paid by the father or the master, not only once
but for an extended period. And it does not seem possible that he
could have done this unless he had known that the money on which
interest was promised had been converted to his use, for who would
233
234
‘lease in perpetuity, quit-rent tenure’ G. & L. (but cp. Berger s.v. peculium).
literally ‘an action on what was converted to the use/profit (of a paterfamilias)’.
It can be brought when the master or father has handed over certain property to
his slave or son, with directions to manage it independently.
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pay interest on anything else than money owed? Moreover, the father
or the master had not owed the money in his own name, although it
was loaned to the son or the slave, unless it had been converted to his
use.
There you now have what happened. And when this was put
before Antoninus, he judged that whatever the father or master
showed to have been converted to his uses and was owed by him, the
heir cannot deny that it was converted to his use and owed by him;
and also that the father or the master had made clear, if not in so
many words then by his conduct, that the money on which he had paid
interest for a long time had been converted to his uses and was indeed
owed by him. Thus Antoninus.
Why not? Or can someone who is proved to have paid interest
disown a debt? But I like what we find in Theophrastus235 (Ethicis
Characteribus, c De diffidentia): ‘A man who is distrustful and is
about to demand the interest on his principal, approaches his debtors
in the company of witnesses, of course so that they can not deny their
debt.’ So Papinian does not mean that the Emperor held that interest
that was not proved to have been promised must be paid for the mere
reason that they had been paid for a long time by a father or a master,
just as if a reason for them is acquired or presumed beforehand on the
grounds of payment over a long period; but, as Franciscus Duarenus236
first perceived (in Chapter 2 of his title on interest) through the fog
of obscurity: when it was clear that the interest had been promised in
a stipulation by the son or the slave, and it was uncertain whether the
money for which the interest was said to have been promised, had
been converted to the use of the father or master, the Emperor
judged that the father or the master had made clear by the very act
of his payment over a long time, that the money had indeed been
converted to his use, and that his heir therefore was liable for the
payment of the interest which the son or the slave of the deceased
promised. That is the meaning of D.22.1.6, quoted above, which will
be even more clear when the example of a specific case in par. 1 of
that same passage is also considered. That paragraph reads as follows:
Our Emperor Severus also ordered that one million sesterces be paid out
of the Treasury by way of a dowry to the daughter of Flavius
Athenagoras, whose property had been confiscated, for the reason that
she had adduced, in support of her plea, that her father had paid
interest on the dowry.
So the specific case is this:
235
236
Greek philosopher, fl. 330 BC.
French legal humanist, 1509 - 1559.
Chapter I
193
Flavius Athenagoras promised on behalf of his daughter one million
sesterces as a dowry, in the old ancestral manner which Juvenal
mentions in Satires X v.335 (that is to say ten times one hundred
thousand sesterces, as Antonius Augustinus observes in Emend. bk. 2
c.6). Now Athenagoras did not pay that dowry, but in the meantime he
did pay the interest on it for the maintenance of his daughter (as was
also done in D.17.1.60.3 and D.29.2.98). Thereupon Athenagoras
committed an offence and his property was confiscated. The daughter
now seeks from the Treasury the dowry promised by her father, for the
reason that the Treasury succeeded her father and in this capacity was
liable to his creditors, because as Quintilian fittingly says in Declamatio
273: ‘The rule in the transfer of a patrimony to someone else is that
debt is to be paid first.’ The Treasury does not deny this, but claims that
the dowry was not legally constituted by her father. She in reply points
out that her father had paid the interest on the dowry and would not
have done so if the dowry had not been legally constituted. Papinian
says that Emperor Severus ordered that one million sesterces by way of a
dowry be paid out to the daughter of Flavius Athenagoras by the
Treasury for the reason that she had adduced, namely that her father
had paid interest on the dowry. Therefore the Emperor ruled that the
father made clear that the dowry had been promised by him by the very
fact that he paid the interest on it. Likewise a father is understood to
have shown that the money loaned to his son had been converted to his
own uses by the fact that he paid interest to the creditor.
Chapter II
On the sources of interest recovery (continued)
[Summary]
In contracts of strict law interest is sometimes owed on the basis of
a bare agreement. When does this apply? Scaevola in D.22.2.7
restored. A problem removed in D.22.1.41.2 which Salmasius
unsuccessfully tried to remove.
*
*
*
But it appears that in civil law interest is established not by a bare
agreement but by a stipulation. Yet I do not deny that (as Emperor
Justinian also notes in Novell.136 c.4) there are cases in which it was
decided that for an exceptional reason interest was owed even in
terms of a bare agreement. So that the Emperor made this concession
to bankers if they gave a loan and did not stipulate interest but agreed
on it, stating in Novell.136 c.4 that ‘it was in any case not fair that
people who were prepared to bring help to nearly everyone who was
in need, should suffer unjust treatment through trifling matters of
this nature’. And Salmasius in this regard quotes (De usuris c.6 p.126)
the following words of Modestinus237 from D.22.1.41.2:
Gajus Sejus received a certain amount of money as a loan from Aulus
Agerius, with the following promissory note: ‘He has written that I
237
Fl. ca. 240 A.D.
194
Chapter II
195
received, and I did receive from him, ten [thousand sesterces] paid out
to me as a loan, and I shall return them to him on the following Kalends
together with his interest as agreed between us.’ My question is whether
interest can be claimed on the basis of that document, and if so, what
interest? Modestinus replied that if it is not apparent about which
interest the agreement was made, the interest cannot be claimed.
But I do not accept the interpretation of Salmasius, for the law that
interest was owed to bankers on the basis of a bare agreement was
introduced for the first time by Justinian in the passage quoted above
from the Novellae 136 c.6, and could not have been propounded by
Modestinus, because in his time it was not yet the law, nor could he
have dreamed that it would one day be accepted by Justinian. I would
rather suspect that a stipulation was added onto the bare agreement
in D.22.1.41.2 (for this usually occurs — D.2.14.7.12) but that this is
not patently clear, since the consultant238 does not present an
unabridged deed of security,239 simply because there is no need of an
unabridged deed, because for him the question was not whether
interest was owed through a contract of strict law in terms of an
agreement, but whether the interest was owed in terms of a formula
by which it had been agreed that ‘it was decided between us that
interest would be owed’, and because it was not clear which interest
had been agreed upon. Nor is it something new that in the
presentation of cases a consultant does not read out an unabridged
document, but only the part which relates to the question under
discussion.
A similar exemption (privilegium) appears to have been granted
to city-states, for we know from the single book on regulae of Paul
(D.22.1.30) that they, too, were owed interest on money loaned by
them on the basis of a bare agreement. And that this was an
exemption is observed by the Scholiasts in Basilica bk.23.tit.3 tom.3,
pag. 440 lit.C.
A similar rule applies in the case of corn or barley given on loan
(C.4.32.11), and even on maritime interest, about which Scaevola
says the following (D.22.2.7):
In some contracts interest is also owed in the same manner in which it is
done through a stipulation. For if I give ten [thousand sesterces] to be
conveyed overseas in order that I may receive back my principal
together with a certain interest if the ship reaches its destination
unscathed, it must be stated that I can receive back my principal
together with interest.
So the text runs in all the books, but the words ex pacto [‘in terms of
an agreement’] are lacking. Add these words, and so read: ‘In some
238
239
A consultor ‘is one who asks a jurist for an opinion in a legal matter’ (Berger).
For cautio in this sense, see Niermeijer s.v., also O.L.D under cautio 3.
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Book 3
contracts interest is also owed in terms of an agreement, in the same
manner in which it is done through a stipulation.’ The meaning is that
in some contracts interest is owed in equal measure in terms of an
agreement as in terms of a stipulation. And for Paul there is an
example in money to be conveyed overseas: that example is ‘If I give
ten [thousand sesterces] to be conveyed overseas in order that I may
receive back the principal together with a certain interest if the ship
reaches its destination unscathed’, that is to say, if I give ten
[thousand sesterces] to be conveyed overseas and have entered into
an agreement that if the ship is unscathed I shall receive back the
principal together with a certain interest, then it must be stated that
I can so receive back the principal together with a certain interest.
And this was so after a decision was given on money to be
conveyed overseas; thereupon it also obtained in the other matters
which, as I have said above (on the basis of Scaevola's remark in
D.22.2.5 pr. and 1), are considered to resemble money to be conveyed
overseas.
I have now set out the cases in which interest is claimed in
contracts of strict law even in terms of a bare agreement. And yet
they were accepted for an exceptional reason: it is patently clear that
in the remaining instances interest is claimed not on the basis of an
agreement but on the basis of a stipulation.
Chapter III
No agreed interest recoverable unless fixed rate stipulated:
Exception in favour of bankers
[Summary]
In civil law interest is not owed at all if it has been included in a
stipulation without a fixed limit, except for bankers, to whom six per
cent per annum is in that case owed in accordance with the new
decree of Justinian. The example and meaning of Ulpian in
D.50.17.34. Modestinus in D.22.1.41 par.2 is unravelled, as also
Ulpian in D.22.1.31.
*
*
*
But it is also not enough that the interest be included in a stipulation
if a fixed limit for it is not expressly stated. If such a limit has not been
added, it is in civil law not determined in accordance with the custom
of the region where the contract was concluded, and the stipulation
is held to be legally ineffective. ‘And yet in bona fide actions interest,
if owed in accordance with judicial discretion, is regulated by the
custom which is most frequently practised in that particular region.’
I concede that: but it is not in terms of a rule of law but because in
these cases it was so decided by the Emperors, as I have shown in bk.II
chapter 5 and in bk.III chapter 6, with reference to D.22.1.37 and
D.17.1.12.9. But there is no such thing in the stipulation of interest:
therefore if it has been promised without an expressed limit, a limit
will not be set for it in accordance with the custom of the region, with
the decree inapplicable, but in terms of the rules of law the
197
198
Book 3
stipulation will not be valid, as if an undetermined interest has been
included in it: in the same way as when someone stipulates something
comprising weight, number or measure without giving the weight,
number or measure, or stipulates that an apartment block be built
without pointing out the stand, or that a farm be given without giving
its name; [in such cases], says Papinian in D.45.1.115, stipulation is
not complete.
Now Ulpian does not confuse the issue when he says in D.50.17.34:
In stipulations and all other contracts we always follow the established
practice, or else, if it is not clear what the practice has been, the
consequence will be that we follow that which is done most frequently
in the region in which it has taken place. What then if the custom of the
region is not clear because it has been too diverse? Then the sum must
be reduced to the minimum.
[But this statement should not confuse the issue], because it is taken
from bk.45 of Ulpian's ad Sabinum, and since D.46.1.4 and D.3.5.4 are
also taken from that book, it seems probable to me that Ulpian has
sureties in mind, because they are what Ulpian dealt with in that
book. Also the theme could be based on a contract of buying and
selling in which it seems that the question was what obligation on the
part of the surety was agreed upon, since it had been decided that a
surety was to be provided for eviction, either in a stipulation or in an
agreement added directly onto the contract of buying (more or less as
we find in Papinian, D.18.1.72 and in Ulpian D.21.2.37). On that
question Ulpian (D.50.17.34) firstly says that in stipulations and all
other contracts established practice must be followed. That is
absolutely correct, and therefore if in selling the practice was that
the simple value be promised, an action on purchase lies; also that
one who promises double the value must provide security, provided
that this has also been agreed upon (convenire) (D.21.2.37) (On this [I
shall comment] more precisely with reference to the Title ‘de
evictionibus et duplae stipulatione’).240
What if it is not clear what was agreed upon? Ulpian goes on to say
in D.50.17.34 that one must then follow that which is done most
frequently in the region in which the agreement was reached. Gaius'
words in D.21.2.6 are no different: ‘If a farm is up for sale, security
must be given for eviction in accordance with the custom of the region
in which the transaction was done.’
But Ulpian himself also says in D.21.1.31.20:
Because the stipulation of double the value is a constant one, it was
decided that an action on purchase could also be brought, if the seller of
240
Since it is not quite clear what Noodt means with this parenthesis, the full title in
the Digest has been given here.
Chapter III
199
the thing owned in mancipium does not provide security for double the
value: for those things which belong to custom and usage ought to be
considered241 in bona fide actions.
What then if also the custom of the region is not clear because it has
been too diverse? Ulpian finally says in D.50.17.34 that the sum then
has to be reduced to the minimum. Therefore — as the opinion of
Javolenus appears to be in D.21.2.60 — at least the simple value will
be promised.
But the explanation of Ulpian in the above example must not in
the same way be extended to interest which has been promised by
stipulation without expressly stating the amount, for that is not what
Ulpian had in mind. And Modestinus, and even more fully Ulpian, gave
a contrary reply: it will be of interest to examine the words of each
of them, because they seem to me to be definitive. But I shall first
quote the words of Modestinus in D.22.1.41.2:
Gajus Sejus received a certain amount of money as a loan [from Aulus
Agerius] with the following promissory note: ‘He has written that I have
received, and I have received from him ten [thousand sesterces] paid
out to me as a loan, which I shall give back to him on the following
Kalends, together with the interest on them agreed upon between us’.
Now I ask whether interest can be claimed in terms of that document,
and [if so] what interest? Modestinus replied that if it is not clear what
interest was agreed upon, such interest cannot be claimed.
The formulation of the agreement presents a promise of the amount
owed together with the interest on it agreed upon between us. That
is the interest on the amount owed in terms of the decision by us who
made the contract; or, it is the interest on money which was loaned
and paid in cash, fitting and appropriate in that it was decided or
agreed upon by us in accordance with the use of the money. If this
interest, decided upon without a limit, can according to Modestinus
not be claimed, it is then proved that unspecified interest, [even]
when included in an agreement, is not given a limit according to the
custom of the region, but is not owed at all.
And what seemed correct to Modestinus likewise appeared correct
to Ulpian in D.22.1.31 when he wrote as follows:
The words 'and whatever interest proves to be242 appropriate' which
were added on in the stipulation, carry no weight if a fixed limit is not
added.
241
242
venire may also be the infinitive of veneo ‘be for sale’.
For this meaning of the Latin future perfect tense, see Austin on Aeneid IV v.591.
Noodt possibly took competierint to be a perfect subjunctive (which has exactly
the same form as the future perfect), interpreting it as ‘whatever interest has
been appropriate’, leading to a subsequent (irrelevant) discussion.
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Book 3
The reasoning of Ulpian here is established, unless he is dealing
with interest of the past and not of the future. But one cannot say
this, for what need is there to understand those words as referring to
past and not future interest? Indeed, why should the meaning of that
stipulation ‘and whatever interest proves to be appropriate’ (et
usuras, si quae competierint) not be ‘and the interest which will be
appropriate to the money owed in default’ (et usuras quae ex mora
creditae pecuniae competent). And that is how the Greek scholars
understood those words, in Basilica bk.23 tit.3 tom.3 p.441 Scholio
lit. D, the scholiast writes:
If someone has stipulated as follows: ‘You promise that you will give
back to me the money loaned to you by me, and also the appropriate
interest’ the stipulation appears to be legally ineffective if he stipulates
indefinitely.243 For he ought to have placed a fixed limit on them, to
state expressly three per cent or six per cent.
Thus the Greeks: and if that is acceptable I would say that in the
theme dealt with by Ulpian, the tense competierint should be
understood in the sense of competent, a common exchanging of
tenses. Servius notes it in his commentary on Vergil Aeneid bk.4
v.590.244
... by Jupiter, will this foreigner leave, she said
will he prove to have made a mockery of my royal power?
On the words ibit and illuserit Servius notes: ‘ibit and illudet, one
tense for another.’
Similarly in Juvenal Satire 3 v.78 we find: ‘If you bid a hungry
Greek to go up to the sky, he will go’. And this is [the same as] si
jubebis, ibit [‘if you will bid, he will go’].
One will therefore understand Ulpian as referring not to past but
to future interest. And yet, even if we were to concede that he has
past interest in mind, we would nevertheless prove nothing regarding
the sum of the matter. For Ulpian in any case asserts that if a fixed
limit is not included in a stipulation, that stipulation is null and void.
This is so because it is true that indefinite interest had been included
in the stipulation.
But all is well if we consider that there is one exception in the
particular instance with which we are dealing, an exception which
was made by Emperor Justinian (Novellae 136 c.5) in favour of
bankers. For if these bankers, when lending money to someone, have
made an agreement on interest and have not expressly stated the
limit of that interest, the Emperor's decision was that the money was
243
244
or: ‘without setting a limit’.
Not v.540 as in the text.
Chapter III
201
not unproductive simply because the interest was not specified, but
that it was to be considered to be just as if interest of eight per cent
p.a. was included in the agreement through the legal right and custom
of bankers. And this exception would not have been necessary if the
rule of law had regulated exactly the thing which that exception lays
down. But now since this rule considers any stipulation in which
uncertain and indefinite usura has been promised to be legally
ineffective, it was necessary that bankers be exempted from this rule.
In case anyone should wish to study the Emperor's words, I quote
them here:245
If [bankers] have indeed stipulated interest, the interest agreed upon
should be paid. But if it has merely been written that an interest-bearing
loan was effected, the contracting parties would [still] not be able to
say that because of the fact that the interest was not specified, the debt
must be considered to be without interest; but, based on presumption,
the enforcing of payment should be carried out as if interest of eight per
cent was named in express terms. (And so forth).
245
The Latin version of the Novellae used by Noodt differs substantially from the one
found in the Schöll-Kroll edition of 1894.
Chapter IV
Agreed interest on account of default in contracts stricti
iuris
[Summary]
Interest promised in a stipulation is owed without demand for
payment after the appropriate day if the money is not paid on that
day. What if nothing can be entered as a debt against the debtor?
Likewise, is usurae which has been promised in a stipulation payable
only after default or even before it? Light is cast on the contributions
of Paul in D.12.1.40 and D.22.1.17.
*
*
*
This, too, can contribute to the understanding of the force of a
stipulation, namely the fact that if it has been concluded under such
a condition that interest be paid on money not paid by the appointed
day, then one need not in any case wait until the debtor is given
notice before the interest can be owed; but a stipulation is binding
even without notice. This is certainly so because it agrees with the
rationale of a stipulation for an appointed day, such stipulation
becoming binding on the day on which the sum due can be
demanded246, even though no personal notice ensues (C.8.37.12),
especially if it can be entered as a debt against a debtor for not having
paid. For if that is not the case, it must be said in another way.
246
For this meaning of die veniente see D.50.16.213 pr.
202
Chapter IV
203
Imagine that after the death of the creditor there is no-one to whom
the money can be paid: human goodwill will expect that the default
for that period should not be culpable, and that if the debtor were to
be sued — albeit rightly as far as the rigour of the law is concerned
—he would be defended by an exceptio doli mali [‘exception of wilful
deceit’] (D.22.1.6 par.1).247
But something which must also not be passed over is the fact that
interest which is owed by stipulation is imposed not on account of
those seeking profit but on account of default on the part of those
who pay, unless it has been specifically agreed that it is owed from
the day of the stipulation.
Paul indicates these things in general in D.12.1.40, and since the
most learned scholars have different opinions about this and this is
the place for it, I shall briefly set out how it appears to me. Paul says
the following in D.12.1.40:
In the auditorium of the praetorian Prefect and Jurist Aemilius
Papinianus a written acknowledgement of debt in the following vein was
read:
I, Lucius Titius, have written that I have received from Publius Maevius
fifteen [thousand] as a loan, paid out to me from his own resources:
(a) Publius Maevius stipulated that the said fifteen [thousand], in
genuine currency, be rightly given on future Kalends, and I, Lucius Titius,
so promised.
(b) If the above-said sum will not have been given or paid, or security
given for it to Publius Maevius or to whomsoever that matter is of
concern, then, so Publius Maevius stipulated and I promised fuller
payment within thirty days, in proportion to the period for which my
payment should be late, by way of a penalty,
(c) one denarius per month to be given for every hundred denarii. And it
has been agreed between us that I must repay monthly on behalf of
(d) Maevius from the above-mentioned sum three hundred denarii out of
the whole sum, to him or his heir.
A question has been asked about the obligation of the interest, since the
number
(e) of months within which payment was due, had passed. I said that
since agreements immediately made are believed to be included in the
stipulation, it was just the same as if he had stipulated a fixed amount
of money for every single month, and to the extent that payment was
too late, he had added interest; that therefore at the end of the first
month interest on the first instalment was running, and similarly after
the second and third time-lapse the interest on the unpaid instalment money increased; and that interest on the unpaid principal could not be
claimed before the principal could be claimed. But some people said
that the pact under discussion
247
This reference is probably incorrect.
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Book 3
(f) had to do only with the payment of the principal and not also to that
of the interest which had been included without a penalty (simpliciter)
in the first part; and that that pact was useful solely with a view to the
exception, and that therefore if the money was not paid in the
prescribed instalments, interest is owed from the day of the stipulation,
even if it had been expressly stated in detail. But when the instalment
on the principal has been deferred, the consequence is that the interest
also is added from the time when the default was committed. And if - as
that man thought - the pact had been of use only with view to the
exception (although a different opinion prevailed) an obligation of
interest will not become binding by virtue of the law itself,
(g) for a person from whom money cannot be claimed because of an
exception is not in default.
(h) But (if) we stipulate the amount which is acquired in the meantime,
then when a condition has been set, the same can also be stated
expressly in the case of interest as in the case of fruits: with the result
that if the money has not been paid by the appointed day on which
(i) it is due by way of interest, it must be provided from the day on
which the stipulation was concluded.
So Taurellius in his Florence edition, and I do not disagree with him
greatly. But one thing at least needs to be noted, namely that when
Publius Maevius is said ‘to have given fifteen [thousand] as a loan’ to
Lucius Titius but in what follows the sum loaned is divided ‘into three
hundred denarii monthly’, then I am inclined, like the Gloss on the
later part, and after that Jacobus Cujacius (Quaestionum Pauli bk.3),
in explanation of D.12.1.40 to read, instead of ‘fifteen’ (quindecim),
‘fifteen thousand denarii’ (quindecim millia denariorum), unless you
would prefer ‘fifteen thousand sestertii’ or ‘fifteen sestertia’.248
This was also accepted by Andreas Alciatus (Dispunct. bk.3 c.2),
by Franciscus Duarenus (in his note on C.4.2, c.5, p.886) and by
Didacus Covarruvias (De libr. aur. vel arg. exam. c.4) — and this was
not done ineptly or with great effort, if the numbers are written as
XV.HS.249 or xv.HS.; although, since Paul in the subsequent words
mentions not sestertia but denarii, the conjecture of those who read
‘fifteen thousand denarii’ would to my mind be far more probable,
and that change is an easy one if we keep in mind that it was originally
written in the form ‘X.xv.mutua’, for that is how, in the ancient
inscriptions of which I have given examples elsewhere, both denarii
and numbers in thousands are noted. Let alone that in Publius
Diaconus' De Notis Litterarum, X is explained as standing for Denarius.
But also Valerius Probus (in his book De Notis Romanorum, the chapter
de notis numerorum) writes as follows: One must realise that any
figure with a straight line lying above it, will signify as many
248
249
The neuter singular sestertium (plural sestertia) came to mean ‘one thousand
sestertii.’
The abbreviation HS is generally used in inscriptions for sestertii or sestertia.
Chapter IV
205
thousands as the figure on its own signifies units, so that i denotes one
thousand units, and v denotes five thousand, and so forth.
Therefore Publius Maevius gave in loan to Lucius Titius X.xv, that
is to say, fifteen thousand denarii, paid to him from his own
resources. That same Maevius stipulated that this xv , that is to say
fifteen thousand, in genuine currency, be rightfully given on the
future Kalends: and if on that day the sum specified above has not
been paid to him, or security given under that entry, then — or
thenceforward — the creditor stipulated that in proportion to the
period for which payment is late (so says the security [cautio] and that
phrase is similarly used in D.45.1.126 par. 2; and it bears the meaning
‘to the extent to which payment is made too late’ or ‘from the date
of default’, as is clear from what follows) by way of penalty (that is
to say, by way of interest, as often), for every thirty days one denarius
for every hundred denarii to be paid, that is to say interest of twelve
per cent p.a., as I showed above.
Then immediately following on that stipulation there was an
agreement between Publius Maevius and Lucius Titius to the effect
that the latter would not pay Publius Maevius the full fifteen thousand
on future Kalends, as had been contained in the stipulation, but that
he would repay him three hundred denarii from that sum on a monthly
basis. When the principal was not repaid within the number of months
in which payment was due, the question was asked in the auditorium
of the praetorian prefect Aemilius Papinianus — with, amongst others,
Paul as assessor — whether the interest on the full principal was owed
to Publius Maevius from the very first Kalends.
And there was one who felt that it was indeed so owed, having
been swayed by the fact that Lucius Titius promised the stipulator
Publius Maevius payment on the whole principal and its interest on the
following Kalends and did not make a payment to him on that day. He
therefore thought that the interest on the full principal was owed to
Publius Maevius right from the first Kalends on which it had been
promised but not paid, and that the agreement following immediately
upon the stipulation was not a hindrance, firstly because an
agreement was therein reached concerning the dividing of the
principal into monthly instalments, but no agreement was made on
the interest: as far as the interest was concerned, therefore, the
stipulation appeared to remain unimpaired and there was no
departure from it in the agreement, especially since it was not
reasonable that an agreement be made about one matter and then be
extended to another (D.2.14.27.4); a second reason was that this
agreement could indeed have been to the benefit of Lucius Titius with
a view to an exception, but by virtue of the law itself it could not be
beneficial, for the reason that the rule of law would not allow that an
agreement be included in a stipulation, that is to say in a contract of
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strict law, and it ought therefore not to be considered to be a bare
agreement, that is to say without legal effect, except insofar as
praetorian law assumed liability by lodging an exception.
Thus far that man's argument. But Paul held a contrary view,
namely that interest on unpaid principal could not be claimed by
Publius Maevius before that principal itself could be claimed. Hence
interest was indeed owed from the very first Kalends, not however on
the full principal but only on the first unpaid instalment, and it
increased on the second instalment after the second Kalends, and on
the third after the third Kalends. And what above all influenced Paul
to come to this opinion was that agreements made immediately [after
a stipulation] — in any case if they restrict that stipulation — are
believed to be included therein. And therefore this is just the same as
if Publius Maevius, having stipulated that a fixed sum of money per
month be paid, had added interest to the extent that payment had
been too late. And so, if an agreement had not immediately been
added to the stipulation, Publius Maevius would have been able to
demand the full principal and with it the interest on that full principal
on the first Kalends, in terms of what was stipulated. But with the
agreement following directly on the stipulation — and this after the
payment of the principal had been divided into monthly instalments
— he could in fact not demand the entire principal on the first
Kalends, but had to demand 300 denarii month by month. This applied
to such an extent that if the creditor persisted in acting contrary to
this, he could be excluded by the debtor from acting in court, not with
an exception but by virtue of the law itself: because it was accepted
that, in terms of what was stipulated, that exception was included in
the action, and was nonetheless contained therein in accordance with
judicial discretion, even if it had not been opposed in jure250 before
the praetor and had not expressly been included by him in his
formula.
But if by virtue of the law itself the full principal could indeed not
be claimed on the first Kalends, as was agreed in the stipulation, then
it is clear that if it was not paid in full on these Kalends, the interest
on the full amount could also not be claimed, because where there is
no claim for the principal there is also no room for a claim for the
interest (D.23.3.69.2; 77). On the contrary, when, after the
stipulation of the entire principal to be paid together with interest on
the first Kalends, it was immediately agreed that Lucius Titius would
pay Publius Maevius three hundred denarii monthly out of the whole
principal and that this agreement would be believed to be included in
the stipulation and give it a new content, then it must be considered
in precisely the same way as if Publius Maevius had from the very start
250
The t.t. in jure refers to the first stage of a civil trial, presided over by the
judicial magistrate (praetor).
Chapter IV
207
stipulated 300 denarii per month, and to the extent to which payment
was too late, interest of one per cent per month. For since it was
decided in the stipulation that interest would be paid upon default, it
is clear that that interest can be claimed, in terms of what was
stipulated, in the event that default was committed. But when such
default has been committed it must not be based on the stipulation
but on the agreement immediately attached to that stipulation; and I
have said before that it is included in the stipulation and changes the
content thereof.
But surely the agreement speaks about the principal and not about
the interest — as has been said from a different perspective? But if we
listen to Paul this is not a contradiction, for when an agreement on
the principal is included in the stipulation by virtue of the law itself,
then its effect extends also to the interest. This is because if in terms
of the agreement the claim for the full principal before the appointed
period has lapsed is disallowed, it cannot happen that the interest on
the principal be owed before the principal can be claimed, especially
since it is declared to have been settled that interest would be owed
only on the grounds of default, as is incontestably proved by these
words ‘then [I promise] fuller payment in proportion to the period
which my payment would be late.’ And by these words, as I have said
above, default is meant.
Therefore, since it has indeed been agreed between Publius
Maevius and Lucius Titius that interest would be owed on no other
grounds than that of default, and since one from whom (the principal)
cannot be claimed is not in default, it is clear that when the claim for
the principal has been deferred in accordance with the agreement of
the contracting parties, the consequence of the opinion of those
people is that also interest which must be paid due to default is owed
not from the day of stipulation but from the day of the default on each
instalment not paid at the appointed time.
‘But the agreement under discussion is to the benefit of Lucius
Titius solely with respect to the exception.’ But this objection, too,
does not throw Paul off balance: firstly because a contrary opinion
obtained, and secondly, although the objection might be valid, it
nevertheless was not pertinent to the issue, since indeed after
payment of the principal has by agreement been deferred, interest
cannot run if default has not been committed, because as I have said,
the effect of this stipulation is that interest is not owed to Publius
Maevius except as a result of default, which does not exist where
there is no claim for the principal. (D.45.1.127)
But that claim does not apply in this specific case, because it is
without legal consequence. For even if we were to state that it does
apply, it can still be avoided by an exceptio pacti. But it makes no
difference whether by virtue of the law itself there is no action or
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whether there is one but it is rendered ineffective by an exception
(D.50.17.112). Therefore, if default is not understood to be
committed in regard to principal which is to be paid but cannot be
claimed on account of an exception, at least one with a legal effect,
(as is acknowledged by the one who disagrees with Paul), it follows
that interest is owed if the money is not paid at the time agreed upon,
but it is not owed on the total principal from the very day of the
agreement, but on each instalment from the day of its default, every
time it is committed.
Yet it cannot be denied that it could have been agreed from the
beginning that if the debtor should be remiss in paying the instalments
he would owe the interest from the very day of the stipulation; for
this course can be followed also in the case of fruits, to which interest
shows a similarity, as Paul grants in D. 12.1.40 ad fin. But in the
specific case before us this was not done, so I strongly support the
view (as the Greek scholars note in Basilica bk. 23 tit.1.p.309, and the
subsequent tom.3 scholion on D.12.1.40) that in making the contract
it must be expressly stated that the interest runs immediately from
the day of the contract. And so I agree with the following words of
Ambrose (de Tobia, c.12 [par.42]): ‘From the day that an agreement
is entered upon, the money loaned at interest slowly grows with
increasing interest’, and also with this quotation from Basil (Homil. in
Psal.14, p.139 tom.1):251 ‘All seeds sprout at their allotted time, and
animals, too, bring forth their offspring at their predetermined time.
But an interest-bearing loan takes its beginning today, it starts
bringing forth today.’
But since this also touches on a problem that arises from the
following noteworthy passage of Paul in D.22.1.17, I shall also briefly
add what I think of it:
Someone had given security that he would annually deliver five per cent
interest, and that if in a particular year he did not pay he would pay six
per cent of the total sum of money from the day on which he obtained
the loan; and [subsequently] over a number of years the interest had
been paid, and the stipulation had then been made binding. In such a
case the late Emperor Marcus [Aurelius] responded as follows to
Fortunatus: ‘Approach the governor of the province, who will correct
the stipulation — about the unfairness of which you have complained —
to the limit of an equitable enforcement.’ This decree exceeds a
definite limit.252 What then? The matter will have to be moderated in
such a way that for the future the interest increases only from the day of
non-payment.
251
252
See n.33. Here Noodt has left out parere after hodie.
The sentence haec constitutio adfinitum modum excedit is problematical.
Mommsen-Krüger print ad finitum, and quote conjectures in their apparatus
criticus. I would suggest that adfinitum is merely an intensive form for finitum
(the prefix ad- is sometimes so used).
Chapter IV
209
Fortunatus (for he was the one to whom the response was
addressed) received money on loan from a creditor, and gave security
[by cautio], that is to say he promised in the stipulation that he would
pay five per cent interest per annum to the creditor and that if in any
year he did not pay, then he would pay five per cent p.a. from the day
that he obtained the loan. After Fortunatus had for several years paid
the interest, he ceased payment. The creditor now claims six per cent
for the total amount of money, not from the day of default but from
the very day of the contract, as had been set out in the stipulation.
Since that seemed harsh to Fortunatus, he laid a complaint about
the unfairness of the matter before Emperor Marcus [Aurelius]. That
Emperor's written response was: ‘Approach the governor of the
province, who will correct the stipulation — about the unfairness of
which you have complained — to the limit of an equitable
enforcement.’ Thus the Emperor. But what does Paul say? He says:
‘This decree exceeds a definite limit.’
So we read in the Florentine edition, but other copies have ad
infinitum modum (‘to an unrestricted limit’). But the Florentine
reading must be retained. The meaning is: this decree of the late
emperor Marcus [Aurelius] goes beyond the limit defined in the
cautio; or this decree does not restrict a judge who will give judgment
on the cautio in compliance with the limit so defined, but it allows
him to temper the rigour of the law with a measure of equity.
Therefore that rescript of the Emperor establishes a power regarding
a cautio which a governor did not previously have, for whereas prior
to that he was bound to comply with the limit of the cautio, [a limit]
in which there was nothing which could be rejected by the decrees of
the law, now on the contrary a governor can depart from this limit,
since the Emperor wishes him to follow not the law but equity. In what
manner? Not the decree but Paul defines this, in the following words:
‘What then? The matter will have to be moderated in such a way that
for the future the interest increases only from the day of nonpayment.’
Paul interprets the matter in the sense that the stipulation for six
per cent interest indeed becomes binding from the day of nonpayment forward, but not for the past. Thus Paul; and I agree with
him, for the offence did not lie in the interest already paid but in that
which had still to be paid, and to the Emperor it seemed unfair that a
default be punished where there was in fact no default.
But a creditor was certainly always free to stipulate higher
interest after the lower interest had not been paid by the appointed
day (D.22.1.9.1). This is so — but only for the future, for that is when
the transgression is committed. He was more free to stipulate the
interest retrospectively, in order to curb the debtor with a view to the
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future; but since this seemed too harsh, it is now forbidden by the
rescript of the deified Emperor Marcus [Aurelius].
The Greek scholiast draws attention to this when he says (on
D.22.1.17 in Basilica lit.C. bk.23, tit.3, tom.3, p.425): ‘Mark this: it is
something new.’ Excellent! For what the deified Emperor Marcus
ruled did not previously apply, and neither a jurist nor a governor of
a province would have been able to grant it, if the late Emperor
Marcus had not here — as also elsewhere — tempered the rigour of the
law with his imperial benevolence.
It remains for us to see whether that decree is to be extended
from the particular issue dealt with in D.22.1.17 to that which is
touched upon at the end of D.12.1.40. But I do not think it can, for
there is a difference between the two: in D.22.1.17 it concerns a
debtor having to pay interest of five per cent p.a. from the principal,
and if in any year he were to stop doing so he would pay six per cent
on the whole amount of money from the very day on which he made
the loan; but in D.12.1.40 it concerns the principal itself having to be
paid on a certain day, say for example after a year, and in the
meantime the interest on that principal must be paid every month
from the very day of stipulation. In this case the interest is promised
not as a penalty on the unpaid interest, but as a penalty on or fruits
of the unpaid principal; and although the interest runs from the very
day of the stipulation there is nonetheless nothing to be censured.
But in the other case (which is D.22.1.17) this is not what happens,
for there interest of six per cent is promised not as a penalty on or
fruits of the unpaid principal, but as a penalty for a debtor not paying
five per cent in a particular year. And yet six per cent of the full
amount is then promised not from the day of default, but from the day
on which the debtor received the loan, and indeed for the time when
he stopped paying five per cent; that is to say when he deserved the
penalty owing to his default, also for the time when the debtor still
paid five per cent, that is to say the period when no default or
culpability on his part occurred — and in that case human compassion
does not allow him to be punished.
Chapter V
Agreed interest on account of default in contracts bonae
fidei
[Summary]
In bona fide actions interest is owed on the grounds of an agreement
which was immediately attached to a contract, even before default.
*
*
*
So much for contracts which are strictly according to law. I now come
to those which are made in good faith, and in such contracts interest
is owed not only on the grounds of what was stipulated but also on the
grounds of an agreement — but then not every agreement, but [only]
one immediately added to a contract. For that is what Papinian writes
regarding a deposit in D.16.3.24: ‘If an agreement was made at the
beginning about the payment of interest, the law of contract will be
honoured’. And in C.4.54.5 the Emperor Gordian253 said:
If at the beginning of a contract of sale you have made an agreement
that he to whom you have sold your possession would pay interest on
money paid to you too late, then you rightfully consider that that
interest must be paid to you by the buyer, after you have approached
the governor of the province.254
253
254
Gordian III, emperor 238 - 244.
It would appear that Gordian decreed that the seller required the Governor’s
leave to charge agreed interest.
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But what if you have made such an agreement, but not at the
beginning of the contract? Gordian continues:
If you have not made the agreement at the beginning of the contract,
and if you then initiate an action claiming that interest is at least on the
grounds of default owed to you by the debtor himself, as well as by one
who has pledged his word regarding the whole matter of the purchase,
then you will rightfully prosecute your claim.
Thus Gordian, and Paul must be understood to be in accordance with
him when he says in D.22.1.17 par.4:
One who is sued in terms of a lease must pay interest solely on the
grounds of default, unless he has agreed to be liable for interest on
money paid too late.
So an agreement concerning interest to be paid, is in a bona fide
contract added either immediately or after an interval. If it is indeed
added immediately, interest is owed on the grounds of the
agreement; but if it is added after an interval, it is owed not on the
grounds of the agreement but on the grounds of default, as will be
said later on.
Now I ask, why so? Because concluded agreements which have
been immediately added to bona fide contracts, fashion an action for
the reason that they are believed to be included in those contracts,
even on the part of the plaintiff. And they are indeed not bare
agreements, but are contained in the contract, and are “by law and
by a party” [jure et parte] considered to belong to it. But if
agreements have been added after an interval, when they relate not
to the substance of the contract but to legal remedies, they do not
fashion the action, because they are no longer included in the
contract and are not considered to belong to it jure et parte, but
remain bare agreements and on their own; and that in civil law an
action based on them is not granted, is clear from Ulpian in D.2.14.7.5
and Papinian in D. 18.1.72.
But I shall explain these and related matters, that have up to now
not been published, more copiously when I discuss the Edict on
agreements. For it seems to me that this law has not always been the
same, but that one law obtained before and another after the decree
of the deified Emperor [Antoninus] Pius: this matter will be dealt with
in the next chapter.
Chapter VI
Interest recoverable on account of default at judicial
discretion
[Summary]
In bona fide actions interest by default is owed in accordance with
judicial discretion. The question is whether this is due to the force
and range of the formula ex bona fide. The Most Honourable
Franciscus Connanus thinks so, and up to now no-one has opposed him
- but he is mistaken. In the Free Republic interest was not owed on
the grounds of default alone in bona fide actions, in accordance with
judicial discretion. When that changed [i.e. when the Principate
followed], Labeo was the first to attempt something, especially on
partnership, and he dealt with that in the guise of damages.
Thereafter the Emperors freely allowed interest in all bona fide
actions. The following passages are elucidated: Pomponian in
D17.2.60 and D.50.16.121; also Paul in D.3.5.7 and Marcianus in
D.22.1.32.2. The author of this decree is uncertain, but it was
probably the deified Emperor [Antoninus] Pius. An excellent passage
in the Excerpta of Polybius is explained: it puts Salmasius in a very
poor light.
*
*
*
But if no agreement has been made about interest, it is still owed on
account of default (D.22.1.17.4), yet not in a contract of strict law,
but in [contracts of] lease and hire, which is the example which Paul
uses. The same applies in [a contract of] buying and selling (C.4.54.5),
213
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likewise in the case of deposit and all the other bona fide actions
(C.4.34.2; D.22.1.32.2; 1.34). And this is interest which Papinian says
(D.36.1.60[58]) ‘is at the discretion of the judge’. How is that
possible? Because — to quote Paul in D.3.5.6.7: ‘In bona fide actions
the discretion of a judge has as much force as the express questioning
on that matter in a stipulation.’ Therefore interest which is owed due
to default in bona fide actions without an agreement, does not arise
so much from the law of obligation but is rather brought to bear in
accordance with judicial discretion (D.19.2.54). This actually implies
that in this interest there are not two obligations, namely one
regarding the principal and another regarding interest — as is the case
when it is owed on the strength of a stipulation — but that there is one
obligation regarding the principal, and regarding the claim for this
principal, default is compensated for by payment of the interest in
accordance with judicial discretion. (C.4.34.4; D.13.4.8).
It would be interesting to investigate whether interest paid in
accordance with judicial discretion must be attributed to the nature
of a bona fide action because of the force and scope of the formula
‘ex bona fide’. That is what the Most Honourable Franciscus Connanus
believes (Comment. jur.civil. c.3.n.2), and as far as I know, no one
has opposed him. Yet Connanus will forgive me if I reckon that he is
mistaken. For that is not the case, and interest was not accepted
steadily and through usage in breach of the lex Genucia: it began to
be adjudged in bona fide actions in accordance with judicial
discretion on the grounds of default, either because at that stage the
use of interest did not seem to be very laudable, and it was generally
agreed that a bona fide action did not allow for a payment which was
demanded in breach of good morals (D.22.1.5), or else because loss
caused by default in repaying money owed, unless it was brought into
the stipulation, was understood not to be about money nor to be a
loss; and at least because it was sufficient for the judge with a view
to proving damages: and by this interest is judged to be due to
default. In fact, nowhere in Cicero or any other author who flourished
in the Free Republic is there any trace of interest having to be paid
without stipulation; but when that changed [i.e. when the Republic
became a Principate], Labeo was the first (for so I have already
surmised in bk.I Chapter V, on the authority of Pomponian) — relying
on the intelligence and erudition with which he was richly endowed
and by means of which he restored many decrees of the ancients — to
introduce interest without a stipulation in bona fide actions, but not
as interest proper but as damages; for he preferred this pretext
especially if the default was ex re,255 for example if a debtor had
channeled another person's money to his own use. This was of course
because Labeo was under the impression that it was consistent with
255
Probably ‘related to the resources / means / substance’.
Chapter VI
215
good faith (after a distinction had been made between [types of]
ownership by the ius gentium) that nobody should make a profit from
that which belongs to someone else. But if the default was not ex re
but ex persona, Labeo wanted interest to be paid even here, not
however in all bona fide actions but in a partnership. But he brought
in interest, and here again not openly as interest proper but under the
concept of damages, and based on the default of the partner himself,
while the partnership still lasted, as it seems to me, because of the
right of fraternity existing between partners. But if a partnership was
ended by the death [of a partner], he did not approve of this on the
basis of an act of the heir, since a fraternity ceases to exist in the
action for the division of joint property (actio communi dividundo)
which subsequently obtains.
And if this is so, it appears that in a partnership interest was
acceptable on the grounds of default, beyond the normal order of
things, and that what was received in that for a special reason was not
then to be extended to an action for the division of joint property and
other bona fide actions. One argument for this can be given from
Pomponian in D.17.2.60, which has been more fully discussed in bk.I
Chapter V.
Would you like a further argument? Here it is, and once again from
Pomponian in (D.50.16.121; excerpted from his Ad Q.Mucium bk.6):
Interest which we receive on money does not lie in the profit (fructus),
because it does not come from the corporeal thing itself but from
another cause, namely a new obligation.
What is Pomponian saying here? He is establishing a single cause for
creating interest: that cause is an obligation, and he establishes no
more causes, because there were none; although it was later decreed
that there would be two, namely either an obligation or the discretion
of a judge, as I have previously pointed out, with reference to
Papinian and Paul, but the first was at the time of Pomponian, and
therefore he does not mention the discretion of a judge in
D.50.16.121, but only obligation. He furthermore says that interest
does not lie in profit, and he adds the reason, which is that it does not
come from the corporeal thing itself. That was absolutely correct at
the time when he wrote, but no longer at the time of Ulpian, who in
accordance with the practice of his time says in D.22.1.34:
Interest holds the place of profits, and must deservedly not be separated
from profits: and so it is upheld in the case of legacies and bequests and
in an action on guardianship, and in all other bona fide actions.
But that which Labeo, and after him Pomponian, founded principally
on partnership — not directly, but under the pretext of damages —
was subsequently disposed of by the emperors when they openly
ordered that in all bona fide actions regarding interest, the discretion
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of a judge had just as much force as a stipulation. And there is
absolutely no need for further conjecture. This is proved as manifestly
as possible by Papinian in D.16.3.24, for he refers to a decree in these
words: ‘And it has indeed been decreed that in bona fide actions, as
far as interest is concerned, the discretion of an arbiter has as much
force as a stipulation.’ Papinian is pointing out that it had once been
possible that interest could be owed not in accordance with judicial
discretion but [only] through a stipulation, but that by imperial
decrees it had then been brought about that in bona fide actions
regarding interest the discretion of a judge now has just as much force
as a stipulation alone once had. And it is in the light of these words
that I interpret that passage of Paul in D.3.5.7, which says ‘The
discretion of a judge in bona fide actions has as much force as the
express questioning on that matter in a stipulation.’ And this
pronouncement shows very careful observation, also because it is
added in writing to the decrees that the interest most frequently used
in a region is adjudged in accordance with judicial discretion in bona
fide actions. For this is what Ulpian asserts in D.22.1.37 in the
following words:
But I think that if I have relieved you of a great disadvantage, it ought to
be said that interest comes into play, but then that interest which is
most frequently used in a region, as has been decreed in the case of
bona fide actions.
Also in D.17.1.12 par 9 where he says ‘And (as has been decreed) the
judge will decide this whole matter in fairness and justice.’ From this
it is clear that when Marcianus writes in (D.22.1.32.2): ‘In bona fide
contracts interest is owed on the grounds of default’ he is to be
understood to mean that after those imperial decrees a rule obtained
which did not previously obtain; or that on the strength of the
imperial decrees it was accepted — contrary to the rules of the Law
— that in all bona fide actions interest is owed on the grounds of
default.
However it may be, this is clear: this interest is attributed not so
much to the nature of bona fide actions as to an imperial decree. And
yet I have not yet been able to come to a conclusion on the person to
whom in particular I can attribute this decree; however, I suspect that
its author was the late Emperor [Antoninus] Pius, who was the first to
mention interest to be paid in accordance with judicial discretion on
the grounds of default, not only in the case of bona fide actions but
also in the case of legacies and bequests (D.3.5.5[6]; D.22.1.17.3;
D.50.10.5).
In addition to this, not one of the ancient jurists who give precepts
on that interest is older than that principate [of Antoninus Pius], with
the sole exception of Labeo whom I have mentioned.
Chapter VI
217
For Scaevola,256 to whom the pronouncements in D.26.7.58.1 and
4 and D.16.3.28 belong, was at the height of his career under the
Deified Brothers257 and later, for from D.32.39, in which he refers to
Pius as ‘Deified’, I have established that he wrote the books of the
Digest (amongst which is D.26.7.58) after the principate of Marcus
Aurelius; but Papinian and likewise Marcianus, Ulpian and Paul came
after him. Furthermore Pomponian (who had most probably come to
the attention of Marcus Antoninus [Aurelius], since he names
Antoninus Pius in 50.12.14 — but as ‘Deified’, that is to say deceased),
does not yet know of interest which is payable in accordance with
judicial discretion on the basis of default, except in the case of a
partnership (D.17.2.60): and even in that case he relies on the
authority of Labeo and not of some decree; and on the strength of this
he also does not introduce interest openly, but under the pretext of
damages; although subsequent Jurists openly allow interest in all
other bona fide actions, not however on the strength of Labeo's
reasoning, but on the basis of the decree, as I have pointed out with
reference to Papinian and Paul. That serves as a proof to me that the
author of the decree which we are discussing is indeed the late
Emperor [Antoninus] Pius, but that the decree was written after the
publication by Pomponian of his thirteenth book Ad Sabinum (from
which D.17.2.60 was taken) and book six of his ad Quintum Mucium
(from which D.50.16.121 was taken). And Africanus (D.46.6.10) proves
that that law was already established when he wrote the third book
of his Quaestiones, for that passage was taken from that book.
Now if this is so, I think it is clear how Javolenus must be
interpreted in D.50.16.117 when he writes: ‘Someone against whom
an action for a larger amount is not granted, cannot seem to have paid
too little.’ For he means that even if a debtor has committed default
in payment, nonetheless if he did not promise the stipulating creditor
interest he does not appear to have paid too little, because interest
was not yet owed in accordance with judicial discretion in his lifetime
(the last part of which appears to have fallen in the principate of
Trajan, at the time when — according to Pliny Ep.bk.6.15 — he
[Javolenus] began to become deranged). But if interest had been
included in the stipulation [it appears]258 that he was paying too little
after his default, because then an action for a larger amount was
granted against him in terms of what had been stipulated. But if
Javolenus had written that after the decree by which interest was
incurred in accordance with judicial discretion in bona fide actions,
the above interpretation would not be necessary, because another
claim could be made in terms of D.19.1.49.1.
256
257
258
Quintus Cervidius Scaevola wrote a Digest in 40 Books (Sohm p.99).
Cannot be Caracalla and Geta in this context.
The Latin sentence lacks a finite verb: it is unlikely that solvere is here an
‘historic infinitive’.
218
Book 3
I do not know whether I should here add that in his ignorance of
the above observation the Most Honourable Claudius Salmasius259 is
glaringly mistaken (De Modo Usurarum c.4 p.180 ff.) in his
interpretation of a certain passage in the Excerpta ex Collectaneis
Constantini Augusti Porphyrogenetae of Polybius260 which Henricus
Valesius published in Paris (pp.155-156). Although the passage in
Polybius is long, I quote it in full because it is so noteworthy. It runs
as follows:
Thereupon half of their dowry had to be paid to the daughters of Scipio
the Great, the sisters of his adoptive father.261 Since the father had
promised to give forty talents as dowry to each daughter, and the
mother had paid out half of this money immediately to each son-in-law,
but had left half of it in debt when she died, that claim had therefore to
be paid by Publius Scipio [Aemilianus] to the sisters of his adoptive
father. Moreover, since the rest of that money which was owed under the
claim for the dowry had — in accordance with Roman civil law — to be
paid to the women over a period of three years in equal instalments, and
after the documentation and household goods had first been provided
within ten months, in compliance with the custom obtaining among [the
Romans], Scipio [Aemilianus] immediately instructed his banker to pay
25 talents to each daughter within the following ten months. Now when
Tiberius Gracchus and Scipio Nasica, whom the above-mentioned women
had married, hastened to the banker at the end of the tenth month and
asked him whether he had any instructions from Scipio regarding that
money, the banker told them to take the money, paying out twenty-five
talents to each of the two; so they said to him that he was making a
mistake, since not the whole sum of money was owed at once, but
according to the laws only one third part of it. When the banker
submitted that he had been so instructed by Scipio, the men were
distrustful and went to Scipio, thinking that he was erring through
ignorance — and it was definitely not without reason that they thought
so, since nobody in Rome would pay a single talent before the appointed
day, let alone fifty talents three years in advance! So much frugality do
they exercise in caring for their money, and so much importance do they
attach to the period [of a loan]. In any case, when they262 had met
Scipio and had earnestly questioned him about the instructions which he
had given to his banker, he replied that he had instructed that all the
money be paid to the sisters in a single payment. Those two men then
confirmed their solicitude for Scipio and suggested that he was making a
259
260
261
262
Claude Saumaise, French philologist (1588 - 1653). He wrote, i.a., De Usuris
(1638).
Polybius (200 - 118 B.C.), Greek historian of Rome's rise to world dominium. The
excerpts from his works from which this anecdote is taken were compiled for the
Emperor Constantine VII Porphyrogenitus in the 10 th century.
i.e. Publius Scipio Aemilianus, the adopted son of the younger Scipio Africanus,
who was in turn the son of Scipio Africanus, the conqueror of Hannibal, here
called ‘the Great’, who also had two daughters. The ‘younger’ Scipio was
therefore the adoptive father of Scipio Aemilianus, and the two daughters were
the latter's (adoptive) aunts. All further references to Scipio in this passage are to
Scipio Aemilianus.
Reading convenissent for convenisset.
Chapter VI
219
mistake, since he was by law allowed to use his own money for a long
time still. But Scipio replied that he had thoroughly studied and taken
cognizance of these matters, but that it was his custom to deal with
strangers strictly according to the law, but to behave as fairly and
generously as he could towards his kinsmen and friends; and therefore
he requested them to accept the full amount of money from his banker.
On hearing these words, Tiberius and Nasica returned home
dumbfounded.
That is what Polybius wrote. Here is Salmasius’ comment on it:
From the words of Polybius which I have quoted above it is evident that
single instalments were customarily paid not after the end of the year
but in the tenth month, perhaps so that, if [the principal] had not been
paid by then, it could at the end of the year be claimed together with
the interest by the one to whom it was owed.
Salmasius is here no doubt under the impression that at the time
interest was owed in accordance with judicial discretion in bona fide
actions on the grounds of default, and that there was no reason why
it could not be owed in terms of a dowry — irrespective of whether
the husband ceased to restore it over a period of three years in equal
instalments, or whether he who had promised the dowry to the
husband ceased paying him; and, Salmasius continues, single
instalments were customarily paid not after the end of the year but
in the tenth month, so that if [the principal] had not been paid by
then, it could at the end of the year be claimed together with
interest.
There you have the opinion of Salmasius, and it contains many
mistakes. The first is that he was of the opinion that interest on
account of default had been owed in bona fide actions in accordance
with judicial discretion, whereas from what has been said above
neither in civil law, nor at the time of the Free Republic, did that
apply, but it was eventually brought about by imperial decrees. The
second error is that he thought that the action by which a husband
could claim the dowry promised to him while the marriage lasted was
a bona fide action. For the truth is that at the time of the ancient
jurists a dowry could be constituted either by transfer or by a
stipulation or by a unilateral promise (dictio), as attested by Ulpian in
Fragm.tit.6 and by Gaius in Inst.bk.2 tit.9,263 and indeed could never
be claimed by a husband by means of a bona fide action, although a
woman could, when the marriage had been dissolved, reclaim that
dowry by means of an action for the recovery of a dowry (actio rei
uxoriae) which was a bona fide action, or else if a stipulation
regarding the return of a dowry (by the husband) had been inserted,
263
This cannot refer to the Institutiones of Gaius as we have them today, since the
full text was first discovered (in a palimpsest) in 1816 by B.G.Niebuhr and first
published in 1820 - more than a century after Noodt.
220
Book 3
by an action on stipulation, which was an action of strict law before
Justinian made it a bona fide action (Inst.4.6.29). Lastly I also do not
agree with what Salmasius said about single instalments customarily
being paid not after the end of the year but in the tenth month; and
he opines that the reason for this is that if [the principal] had not been
paid by then, it could at the end of the year be claimed together with
interest. For that is not so, but that whole matter shows a vestige of
a bygone year, when at the time of Romulus a year was completed not
in twelve but in ten months; and although Numa later added two more
months to it (as we know from Ovid Fasti 1 vv.43 - 44), it seems that
in the laws emanating from Romulus even in later times the length of
ten months for a year was retained. This conjecture is supported by
Seneca Epist.63.[13] when he says: ‘For women our forefathers fixed
the period of mourning at a year’, for he here means a year not of
Numa but of Romulus. Listen what he says in his consolatio ad Helviam
c.XV.:264 ‘And that is why our forefathers allowed women mourning
their husbands a period of ten months.’
Ovid also says in Fasti 1vv.35 - 36: ‘For just as many months265
after her husband’s funeral a woman maintains the signs of sorrow in
her widowed home.’
That arrangement lasted right through to the time of the
Emperors Gratian, Valentinian and Theodosian, by whom it was
eventually changed (C.5.9.2).
264
265
But in the O.C.T. it is in Chapter XVI.1
In the preceding couplet Ovid refers to the length of a woman's pregnancy.
Chapter VII
Interest recoverable on account of default in cases of
legacies, bequests and promises made to the State
[Summary]
Legacies and bequests are compared with bona fide actions in respect
of interest. What about legacies with damnatio? A certain important
but difficult passage (Inst.bk.2, tit.7) is made easier by
interpretation and brought in line with the opinions of the other
Jurists. Even promises made to the state were subject to interest on
the grounds of default. The circumstances under which this occurs.
*
*
*
To be added to bona fide actions are legacies and bequests,266 for
they belong to strict law, since they are claimed in terms of a will
(D.12.3.6), but in respect of interest they are not to be separated
from bona fide actions. And I am convinced that in the case of
bequests this already obtained under the deified Emperor [Antoninus]
Pius, for that emperor gave a written reply on them (D.22.1.17.3). But
there is reason to doubt whether things were then still different in the
case of legacies, because there could be some suspicion that it had
not been decreed at that time that in their case interest was to be
266
fideicommissa: more fully ‘bequests in trust’.
221
222
Book 3
paid on the grounds of default, but if such legacies had been left per
damnationem267 they were doubled;268 for this was the law under
Marcus Aurelius, says Gaius in his Institutiones, which he wrote after
the death of Antoninus Pius, as I infer from the fact that in D.1.6.1,
which is from his first book of Institutiones, he calls him ‘the Deified’,
that is to say, ‘deceased’; as he also did in bk.14 of his Ad legem
Juliam et Papiam, as quoted in D.31.56.
It is clear from D.38.17.9 that he indeed wrote on the
Senatusconsultum Orphitianum,269 which was passed after the time
of the deified Emperor Pius, under the principate of Marcus
[Aurelius].
I am adding the words of Gaius, which contain a rare and so far
not adequately explained observation, from his Inst.bk.2 tit.7,270
which deals with fidecommissa. He writes as follows:
Furthermore the nature of bequests and legacies differs in this respect
too, namely that if bequests were to be paid out later than was written
in the will, interest and fruits are owed; but on legacies interest is not
owed, but they are doubled on the grounds of default of payment if they
were left per damnationem in the will.
Thus Gaius, the single attestant of this difference between legacies
and bequests. But was he a satisfactory attestant? It would be a too
harsh judgment to say that he was not. And yet, the Emperors Severus
and Antoninus are our authorities that in respect of interest the same
law applied to bequests and legacies (C.6.47.1), and they say that in
their time this was evident. They said: ‘It is evident that interest can
be exacted on legacies and bequests from the time when joinder of
issue was made.’
Ulpian, too, confidently says the following in D.22.1.34:
Interest takes the place of fruits and rightly must not be separated from
fruits; and thus it is upheld in legacies and bequests, and in an action of
guardianship, and in all other bona fide actions.
But Paul also writes (Sentent. bk.2 tit.X) ‘Fruits and interest can be
claimed on bequests or legacies payable due to default.’
What then if we were to add that even in the lifetime of Antoninus
Pius, and indeed before Gaius published his Institutiones, interest on
267
268
269
270
literally ‘through condemnation’, but as a legal t.t it refers to the imposition
upon an heir to do something under the terms of a will. In view of the highly
technical nature of the phrase per damnationem it is left untranslated.
The verb duplicare may also sometimes mean ‘largely increase’.
178 A.D. It is not clear whether Noodt simply means that Gaius wrote this
commentary after the time of Antoninus Pius, or whether he is referring to the
appellation Sacratissimus which Gaius uses here instead of Divus.
See n.263.
Chapter VII
223
the grounds of default was beginning to be paid as equally on legacies
as on bequests? Is that really so? Listen to Ulpian in D.50.10.5, where
he says:
If a legacy or a bequest has been left regarding a work of art, a rescript
of the late Emperor Pius deals as follows with the amount and the date
of inception of the interest to be paid: if indeed a fixed date has not
been set by those who have bequeathed as a legacy that statues or busts
be erected, a date must be decided upon by the Governor of the
province; and if their heirs have not erected them by then, they must
pay nominal interest to the community within six months; if not, six per
cent p.a. But if a date was indeed set in the will, they must deposit the
money before or on that day; if they either say that they do not find the
statues, or if they start a dispute about where they are to be placed,
they must pay six per cent immediately.271
So what do we make of this? The matter seems to be leading to a
conflict, unless one allows that Gaius may be guided272 by some
interpretation. For he must not be understood simply to be denying
that interest is paid in the case of legacies on the grounds of default
of payment; and also not simply to be meaning that a legacy left per
damnationem is always doubled on the grounds of default. Gaius
should rather be understood to point out that while in the case of
bequests interest is always paid on account of default, this is not
always the case with legacies, at least if they have been left per
damnationem, for then interest on account of default is sometimes
not paid, but legacies are doubled. I am persuaded to venture this
opinion firstly by examples of a distinctly similar manner of speaking,
and secondly by the evidence of ancient law.
But first I shall give examples of the particular manner of
speaking. An example of that is found in Ulpian in D.1.21.2 where he
says ‘If jurisdiction has been mandated by a Governor, he to whom it
is mandated cannot dispense advice.’ And he does not (as the words
at first blush seem to mean) simply state that if jurisdiction has been
mandated advice cannot be dispensed by the mandatary (for that is
not true), but that if jurisdiction has been mandated by a Governor
the mandatary cannot dispense advice [quite] equally where the
Governor can do so. This I have pointed out with reference to par.1 of
that same passage in my De Jurisdictione et Imperio bk.2 c.X.
I have also added a second example of the same type273 from
Ulpian (D.50.16.42), where, after saying that theft and adultery are
by nature disgraceful acts, that is to say at all times dishonourable,
because in theft and in adultery there is an element of deceit ‘which
271
272
273
Cp.p.15 above.
regi - Noodt probably means that a misconception of what Gaius actually said
might be corrected by a new interpretation.
referring to a ‘manner of speaking’.
224
Book 3
is by nature disreputable’, he goes on to write ‘To be condemned for
guardianship274 is not by nature a disgraceful thing, for something
which can befall even an honourable man is not by nature wicked’ (for
that is how the text should read, with the words ‘in accordance with
the custom of the state’ expunged, since they are not the words of
Ulpian but of an interpreter).
So the [real] meaning is that being condemned for guardianship is
not always nor quite equally by nature a disgraceful thing; because
the guardian is not being condemned solely on account of deceit,
which is by nature a disgraceful thing, but also on account of
negligence — sometimes gross and sometimes light — which is not by
nature a disgraceful thing, at least insofar as it is a fault but not a
misdeed, and may befall even an honourable man, that is to say a
good and honest man.
There you have the meaning of the Ulpian passage. And do not
think that Gaius has a different meaning in the passage quoted above,
for he is there pointing out that interest and fruits are owed on
bequests if they are paid later than was documented — that is to say,
are owed at all times and without distinction, whether the default is
coupled with a denial or not; but on legacies interest is not owed, that
is to say not owed at all times and quite equally, but the legacies are
doubled on the grounds of default on payment, if they were left per
damnationem; that is to say, they can be doubled, or sometimes be
doubled. And I think that this happens if the legacy is exactly
specified, and the default is not simple but is coupled with a denial;
for the rest if only default follows without denial, it is not a doubling
of the legacy, but interest that is in place.
But it is not only the manner of speaking that leads to this
conclusion, but also the authority of the Ancients. For what I have said
about interest due to default being payable equally as much in the
case of legacies of whatever kind as in bequests if no denial has been
entered, is clear from the passages adduced above, in which there is
absolutely no mention of denial. But what I added about the doubling
of a legacy left per damnationem with default following not simply
but on the basis of denial, is shown by Paul in his Sentent. bk.1 with
the title Quemadmodum actiones per inficiationem duplentur when
he writes:
Some actions are doubled if they are denied by the debtor, such as
actions on judgment-debt (judicati), on deposit, on legacy left per
damnationem, on damage wrongfully caused in terms of the Lex Aquilia,
or on the boundaries of land when a buyer has been misled by a seller.
274
tutelae damnari - meaning not clear.
Chapter VII
225
And not only by Paul, but also by the Emperor Justinian in
Inst.3.27.7, who also says that the Ancients so decided especially in
the case of legacies per damnationem when they were exactly
specified. These are the words of Justinian:
For the ancients gave the following explanation: in cases where a matter
in dispute increases through denial275 money not owed but paid cannot
be claimed, as is the case in terms of the lex Aquilia and likewise in
terms of a legacy. And the ancients indeed wanted this to apply in the
case of those legacies which had been exactly specified and had been
left per damnationem.
But let us carry on. It is clear that interest is owed on account of
default in legacies and bequests, as in bona fide actions. Now I ask:
Why? Because it was so decided. For that is the reason given by
Papinian in D.33.2.24. And it is not disturbing that in C.6.47.1 and 4
interest and fruits on legacies and bequests are said to be exacted
from the time of joinder of issue, for that is a reply to a fact, and must
not be understood to mean that interest can never be owed before
joinder of issue, not even if there has been default; for this is not
what is being said there, nor is it true, but it is to be understood to
mean that if there was no default prior to joinder of issue (which
sometimes happens, as Papinian observes in D.22.1.3 and in the
passages cited was inferred from the fact)276 then interest cannot be
owed before joinder of issue, since interest is not owed other than on
account of default. But this [i.e. default not having been committed]
rarely happens, for default is mostly committed already before the
case arrives before the judge. And for that reason an heir is thereafter
bound by the necessity of delivering the fruits (D.22.1.3).
If this is so, why should he not also be bound to pay interest, even
if joinder of issue has not taken place? (D.22.1.3; D.36.3.1.13;
D.35.1.92 ad fin.). But in his Sententiae Paul bk.3, tit.X clearly states
the following:
Fruits and interest on bequests or legacies which have to be paid out on
account of default, can be claimed. Default is seen to occur when the
claimant is not paid.
I would say as much with regard to promises made to the state: even
although they belong to strict law and do not per se allow interest
they nevertheless resemble bona fide actions. ‘Under what law?’ In
terms of the rescript of the late Emperors Severus and Antoninus
(D.50.12.1). But in Bk.I of his Decreta Paul says (D.22.1.16): ‘Interest
is not exacted on the basis of generosity277 toward the state.’
275
276
277
i.e. where the unfounded denial of the defendant is punished by a doubling of the
damages to be recovered.
ex facto inciderat — the translation is uncertain.
liberalitas, i.e. donations to the state by individuals.
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Book 3
But now the Greek jurists (Basilica 23.3.Schol. on D.22.1.16, vol.3
p.426) have rightly made a distinction between generosity and a
promise to the state, for a promise to the state is the promise of an
individual who made it to the state not without reserve but for a
lawful reason, say for the sake of election to a public office, or
because of having been elected. (D.50.12.1.1; D.50.12.2; D.39.5.19).
There is an example of this in an inscription on marble, in
Gruterus p.400, Inscr.7:278
PUBLIUS DECIMIUS EROS MERULA, FREEDMAN OF PUBLIUS, CLINICAL
PHYSICIAN, SURGEON, OCULIST, SEVIR [AUGUSTALIS] THIS MAN PAID
50 000 SESTERCES FOR HIS FREEDOM HE PAID 2 000 SESTERCES TO THE
COMMUNITY FOR HIS APPOINTMENT AS SEVIR …………
Now generosity is shown for no other reason than the practising of
liberality (liberalitas) and munificence (munificentia): and the latter
is properly called a gift (donatio), but the former is not properly so
called (D.39.5.1), and this [distinction] is so acceptable that Labeo
writes (D.39.5.19) that liberality falls outside the sphere of gifts if it
is practised for a reason. The position was therefore that interest on
a promise is owed after default because this was stipulated in the
decree of the late Emperors Severus and Antoninus (D.50.12.1); but
this was not the case with liberality or a gift, since the late Emperors
Severus and Antoninus issued no decree on this, and I rather think that
Modestinus pointed out the difference of both these in bk.8 of his On
Differences, from which these words in D.39.5.22 were taken:
It is eminently fair that someone who has promised money or something
else does not owe interest on the grounds of default in paying the
money, especially since (this) type of gift is not classed under bona fide
contracts.
278
CIL XI. 5400. This fragment of a marble tablet was found in Assisi, in the home of
an erstwhile ‘district surgeon’. The rest of the tablet relates that Publius
Decimius also gave money for statues to be erected and streets to be paved.
Chapter VIII
Concerning fiscal interest
[Summary]
The State Treasury does not owe interest in terms of its contracts,
unless it succeeds in the place of a private person; but it does receive
interest. It does not seem that the same principle is upheld in the
State as a whole.
*
*
*
Therefore interest is owed on account of default, in accordance with
judicial discretion, in bona fide actions and those that are similar to
them. The one exception is in the case of the Treasury, which does
indeed receive interest in terms of contracts, yet does not pay it,
except when it has succeeded in the place of a private person, for in
that case it is usually paid as Paul mentions in D.22.1.17.5.
Let us have a look at the State (respublica) as a whole. But I do
not think that what has been granted to the Treasury as an
exceptional right can be extended by interpretation to the State. For
example: the State has been instituted as heir — as Paul informs us,
this can today happen in terms of a senatusconsultum passed in the
time of the late Emperor Marcus (D.34.5.20); so the state has been
instituted as heir; it has neglected bequests; default has been
committed.
227
228
Book 3
I like what Papinian says in D.31.78.2: ‘Even the State is
compelled to pay interest after default.’ And I like no less what
follows:
But if any loss were to follow from that, it must be made good by those
people who after the sentence was passed neglected to pay the
adjudged amount. And the same will be upheld with regard to the costs
of litigation if there was no basis for litigating: for people who offer
laziness as an excuse ought not to be listened to.
Chapter IX
Default analysed
[Summary]
Is interest owed in bona fide actions in accordance with judicial
discretion before default? It is committed not ex re279 but ex
persona.280 And why is this so? There is an excellent reason why
default, if it is an obligation without condition, takes place ex
persona rather than ex re. What if not a payment but an obligation is
drafted for a fixed date? Is one notice enough to establish default, or
are several required? For default ex persona to take place, an
equitable notice is required, and one which is ignored without
reason.
*
*
*
Interest is therefore owed in bona fide actions (or whatever actions
are on the same level) on the basis of default, in accordance with
judicial discretion. And what is the position before default? I hardly
think it is then owed, for good faith does not accept that damages be
paid for a loss that does not exist when no default has been
committed. Furthermore, Paul is our authority that interest is
279
280
mora ex re: ‘factual default’ by expiry of the period within the debt should be
paid. No interpellatio (‘notice’) is required because dies interpellat pro homine.
mora ex persona: ‘personal default’ in the sense of personal intervention by the
creditor who gives notice (interpellat), usually where no specific date for
payment has been set.
229
230
Book 3
imposed not for the sake of profit for those claiming it, but because
of the default of those who have to pay (D.22.1.17.3). In dealing with
the subject of deposits, Papinian also says that it is contrary to good
faith and the nature of deposit to expect interest for the period prior
to default from someone who did a favour by accepting money, at
least if nothing had from the beginning been agreed upon regarding
interest; he also says that otherwise the principle of contract is
upheld (D.16.3.24).
But this could be open to doubt for the reason that in D.22.1.1.1
and D.19.1.5 it is said that interest ‘is by all means owed, even when
default does not occur,’ and Paul again, says in D.22.1.17 par.4
‘Unless someone who is sued in an action on hiring has agreed that he
would owe interest on money overdue, he does not owe interest on
any other grounds than that of default.’ [Taking these two statements
into account], it would not be beside the point to set out briefly what
default is and how it comes about.
Default, then, is an unjustified neglect on the part of one who
after having been rightfully given notice does not pay or does not
accept what is owed. Firstly, I said it is neglect because it is so called
in D.22.1.17; furthermore, it is neglect whenever it becomes the
cause of postponement, as in D.22.1.21. Thereupon I added that
neglect is on the part of the one who does not pay or does not accept
what is owed, because default can be committed not only by a debtor
but also by a creditor (D.17.1.37 and D.46.3.72 and 39); and just as it
is in the interest of a creditor that what is owed to him be paid by the
debtor at the stipulated time, so that he can use it, so it is in the
interest of the debtor that if the sum owed is offered to the creditor
it be accepted by him, and that the debtor so may be free of the
principal and interest. And in De Beneficiis Bk.2.17.7 Seneca fittingly
says:
A moneylender usually gets a bad reputation if he exacts [money owed
to him] in a harsh manner; likewise, too, if he is reluctant to accept
payment and obstinately seeks default.
So default is neglect on the part of either the debtor or the creditor,
but unjustified neglect, and committed by one who has rightly been
given notice. This is so because for default to take place it is not
enough that a claim or an offer be made and respectively not paid out
or accepted, but after a claim or an offer has rightfully been made it
has also not been paid out or not accepted without reason. For when
we discuss ‘default’ we are not asking about the force of the word
itself (which certainly embraces delay of the matter, or a too tardy
payment) but what we are asking is what default is which must be
amended rightfully and by judicial investigation for the reason that it
has unlawfully done harm. This is indeed not mere delay of the matter
or simply any too tardy payment, but the delay of a person who, after
Chapter IX
231
having rightfully been given notice, without reason neglects doing
what he must do. This is true to such an extent that Paul (D.22.1.17
par.4) distinguishes between default and too tardy payment, saying:
‘He who is sued in terms of a lease-agreement need not pay interest
except on the grounds of default, unless he agreed to owe interest on
money repaid too tardily.’
The meaning is this: in an actio locati (‘action on lease’) interest
is indeed owed on the grounds of neglect or too tardy payment of
money, but not always: only if it was so agreed; otherwise it is not
owed on those grounds but on the grounds of default. Paul therefore
makes a distinction between too tardy payment and default, and he
correctly says in Sentent.bk.3, tit.x ‘Default seems to occur when
payment is not made to one making a claim.’
Marcianus confirms, and expounds on, the opinion of Paul when he
says (D.22.1.32) that default does not occur ex re but ex persona: that
is to say, if someone who has been given notice does not pay at a
suitable venue. Marcianus means that default is not understood to
occur solely on the basis of the period of tardy payment, but if
payment is made too tardily due to a fault of a person, and that this
is eventually seen to happen if a debtor has not paid at a suitable
venue after having been given notice.
Justinian would say that default occurs ‘not by virtue of the law
itself, but by joinder of issue (litis contestatio) or agreement
(conventio)’; for when he ordered in C.1.3.46.4281 that in dutiful
legacies (legata pia) default is committed ipsa re [‘by the event as
such’] without notice being given to a person, he said the following:
We decree ... that without examining default on the basis of joinder of
issue or of agreement, but by virtue of the law itself, what is commonly
called default is understood to have preceded.
Justinian means that default is not committed282 ipsa re or
voluntarily, but by joinder of issue, that is to say by judicial notice or
by an agreement or an extrajudicial reminder. For that is how
agreement is to be understood in Justinian (as in D.17.1.59.5;
C.4.66.2); and this is not a bare agreement, lest the matter be
deprived of approval, but one made with sworn statements by
witnesses, as in D.45.1.122.3.
Therefore default is committed not ex re but ex persona, and it
occurs if someone who has been given notice does not pay. For what
reason? The best, no doubt, is for an unconditional debt, where the
281
282
This Latin version of the originally Greek passage differs quite considerably from
the version given by Krueger.
The passive of committere can in certain contexts also mean ‘become binding’.
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aim seems to be that the day on which the sum begins to be owed and
the day on which it can be demanded are of immediate effect. And
this means, not that it should immediately be paid, but that it
immediately begins to be owed and can be claimed (D.50.16.213). So,
if a debtor does not pay and payment is claimed, he commits default
ex persona, because he is contravening the law of obligation; but
when he does not pay the money when it is not claimed, he does not
commit default ex persona, for he is not acting contrary to the
purport of the obligation, which did not have the intention that the
debtor necessarily had to pay of his own accord, but that the creditor
should have the freedom to decide when to claim.
In that sense Cicero says of Nature (Tusc. Disp. I.39):
She has indeed given us the interest on life without a previously
specified date, as is the case with money. What reason is there then for
you to complain if she claims it back when she wants to? For that was
the condition under which you received it.
One thing the creditor must guard against is that he does not act
discourteously by lending today and demanding back tomorrow. For
that is the reproach of Ambrose in De Tobia c.3283 when he says:
What is indeed more loathsome than lending at interest today and
exacting the money tomorrow? I say such a man is an odious person, for
his offer is charming but his exacting is savage.
But what Ambrose is recommending here belongs to [general human]
kindness, which a creditor can show if he so wishes: if he does not
want to show it, he is not compelled to do so, for he has as much right
to claim as to postpone — this is something he lays upon himself, not
upon the debtor who has the benefit of his [human] kindness. Finally,
the debtor does no wrong to the creditor when he holds back money
owed to the creditor at the latter's wish.
And if this is the case, the result is that for a debtor to be in
default it is not enough that the day on which the condition is fulfilled
and the day of meeting the obligation have both come284 — that is to
say, that the sum can now be owed and claimed — but furthermore
that it was properly claimed but not paid. This applies if the
obligation is contracted unconditionally, or (to quote Cicero again)
‘without a previously specified date.’
It is the same if, I shall not say the payment but the obligation is
drafted with a view to a specific date, for then, too, a debtor is not
understood to be in default before he omits to pay after being given
notice by the creditor, because otherwise there is no reason why the
283
284
This reference should read De Tobia c.12.40.
See Berger s.v. dies cedens: also Ulpian in D.50.16.213.
Chapter IX
233
debtor should be reproved, who not only did not promise to pay on a
fixed date but does indeed pay when the creditor demands payment.
Suppose an obligation has been contracted under a condition, and
that condition has been fulfilled: then default is not committed unless
after the specified day came, the debtor was given notice by the
creditor. For although a day was fixed for the obligation on which an
action could arise, there was nevertheless not decided upon a date
when the debt should be paid, and therefore if the condition has been
fulfilled and the debtor knows this and nonetheless does not pay, he
is not in default for as long as he has not been given notice — no more
so than if the obligation had from the start been unconditional. For
when an obligation which was contracted under a condition is held to
be unconditional once that condition has been fulfilled (D.20.4.11.1),
why should the same decision when made on an unconditional
[obligation], not be made on one with a condition attached after the
condition has been fulfilled?
The situation is similar in the case of obligations which at their
inception are unconditional, but ex re accept deferment, for also in
these a day appears to have been fixed on which an action may arise
(D.45.1.73) but not one on which a debt should be paid. Therefore,
although the sum may be claimed after the action has arisen, yet the
debtor who has not paid is not immediately in default, because as long
as the creditor makes no demand, there is nothing to be held against
the debtor. Likewise if someone owes unconditionally and can
immediately be sued because an action is immediately granted
against him, he is nonetheless not immediately in default if the sum
has not immediately been claimed from him.
I see that the question is asked whether one notice is sufficient or
whether more are required. But I think one is enough.
Marcianus indeed requires (D.22.1.32) only that the debtor should
be given notice, nothing more: someone who has been given notice
once only appears to be equally as well given notice as one who has
been given notice more often. Moreover, someone who delays
payment after having been given notice is at fault, and he does not
make this fault different by the fact that he is not given notice a
second time; in fact, the longer he delays paying after the reminder,
the more does he aggravate his fault. And if this is so, it follows that
he who does not pay after having been given notice, even if it was only
once, is guilty of default, and can remedy his fault only by tendering
the sum owed. (D.45.1.91.3; D.24.3.26). And indeed, mention is made
of multiple demands in (e.g.) D.45.1.122.3; D.4.4.38; D.17.1.59.5,
but not in the sense that they were necessary in law, but simply
because they did in fact occur. However, in D.22.1.32.1 Marcianus
insists on continuation of demanding back the sum owed so that the
debtor may be in default. Here are the words of Marcianus:
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And for proof of default it is not enough if notice is given by the creditor
or his agent to the slave of an absent debtor, since even if notice was
given to the master himself (he says),285 but there was no insistence on
his paying the debt when he was present, default is not understood
automatically to have been committed by the debtor.
But he, too, does not require more than one notice; he is merely
saying that default is not assumed to be committed if notice was given
by the creditor or his agent to the slave of the absent debtor, unless
that notice thereupon came to the master's attention through the
slave's report to him (D.5.3.20.11).
He also adds that sometimes default is not assumed even though
a debtor is given notice in person, as for example if a debtor has given
access to himself or made himself available, that is to say has been
present so that a discussion can be held with him (D.42.4.2;
D.26.10.7. 2 - 3; D.8.5.18) and the creditor still does not insist on
claiming back the sum owed, that is to say refrains from insisting, or
if he remits the debtor’s default in the same sense as which the late
Emperor Pius uses the verb omittere for remittere in the following
words (D.22.1.17.1):
Too unjustly do you claim past interest which the long interval of time
shows you to have remitted when you thought that that interest need
not be claimed from your debtor, of course in order that you could gain
his favour.
Similarly, if a debtor offers payment to his creditor, but later ceases
to offer, the creditor is not assumed to be in default
(D.45.1.122.3).286 But this is not because one offer is not enough to
establish default on the part of the creditor, but because there does
not seem to be an obligation if the debtor does not persist in it. For
instance, a debtor offers his creditor money before a judicial
magistrate (in iure) or in a court of law: thereupon the creditor claims
the money, but the debtor is not ready to pay and stops offering, as
in D.19.1.3.4; or another instance: the debtor offered money to the
creditor, and when he did not accept it, deposited it; later he takes
the money back, as in D.22.1.7, and the deposit does not remain in
the same legal situation. Therefore the debtor does not persist in
offering it, having changed his inclination. And rather similar is what
Papinian says in D.5.2.15.1 about a lawsuit which is necessary for the
alteration of a complaint:
A complaint about an inofficious will is not allowed to an heir of
someone who died after the preparation of a lawsuit on an inofficious
will, since he had changed his wish, because it is not enough to institute
a lawsuit if he does not persist with it.
285
286
Marcianus is quoting from a rescript of Antoninus Pius.
Relevance not clear: perhaps par.5 ad fin.?
Chapter IX
235
But I return to the point from which I digressed. It is clear that for
default to be established there must not merely have been neglect,
but neglect after a demand. And even this is not enough: a further
requirement after there has been a rightful notice is that the neglect
should have been without just cause. And for that reason I define
default as the unjust delay of one who does not act after having been
rightfully given notice. For it is also called deception (frustratio) in
D.17.1.37; D.22.1.3.4. And if there is deferment for a rightful reason,
it is blameless and in the view of civil law there is no default
(D.22.1.9.1).
To illustrate this with one or two examples:
Suppose payment is claimed but money is not by law owed, or else
it is by nature owed but not in accordance with civil law - who will say
that there is default where there is no claim (petitio) (D.45.1.127)? It
is the same when according to civil law the debtor owes but is
safeguarded by an exception (D.22.1.21; D.12.1.40).
Suppose that money is owed both by nature and in civil law, but
is claimed in a place other than the one in which it is owed, as in
D.30.47.
Suppose payment is due by a certain day, but the day on which the
sum can be demanded has not yet come. In both these two latter
instances there is a reason for refusing payment, and then it is not the
wrongful neglect which we call default (D.46.3.39; D.45.1.49.3 and
122 pr.).
Suppose payment is due by nature and in accordance with civil
law, also unconditionally, and also claimed at a suitable venue, but
there is a reason why the debtor does not know how much he must
pay?
Venulejus says this does not seem to be something dishonest
(D.50.17.99).
What if he appeals to a court of law and acts without intentional
deceit? Julian says this man also does not commit default
(D.50.17.63), and Paul agrees (D.22.1.24). There is a neat example of
this in D.22.1.3.
What if he preferred to enter into a dispute rather than make
restitution? Ulpian states in D.45.1.82 par.1 that if he acts in order to
deceive, knowing full well that he ought to make restitution, he
commits default.
Suppose, once again, that somebody knows that he owes, and also
knows how much he owes, but without fault of his own is deprived of
either the opportunity (occasio) or the means (facultas) to pay? In De
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benefic.4.40.3 Seneca says that he is not in default: ‘There is no
default on my part if I have neither the opportunity nor the means.’
For further examples see D.22.1.9.1; ibid 17.3; ibid. 23. So
Pomponian in D.19.1.3.4 explains that there appears to be default if
no hindrance prevents the seller from delivering, that is to say (as the
same Pomponian says in D.45.1.23) if it was his fault that he did not
give.
But to enumerate all the instances would be a lengthy task, and I
like the comment of Marcianus in his Regulae bk.4, on whether the
question of default ex persona being allowed or not, ought to be
investigated before a judge; he says that Pomponian certainly wrote
that a precise ruling on this matter was difficult, and that the late
Emperor [Antoninus] Pius had replied to Tullius Balbus that whether
default be understood to have been committed could be decided
neither by any Imperial decree nor by the consulting of legal
authorities, since it is a matter rather of fact than of law.(D.22.1.32).
Chapter X
Default analysed (continued)
[Summary]
Sometimes default can indeed arise ex re. The cases in which this
occurs. Default ex re is not true default, and that is why it is often
said not to be default at all.
*
*
*
So default is committed not ex re but ex persona. But sometimes, as
Ulpian observes in D.22.1.23 par.1, ‘default happens to be decided
upon ex re’, and Ulpian gives the example ‘if perhaps no one is to be
found who can be sued’, as happens when the debtor does not put in
an appearance, in which case Pomponian is of the opinion (D.22.2.2)
that the creditor should state this in a sworn testimony, that is to say,
that he should declare in public that he finds no one to whom he can
give notice. With a view to what? ‘So that this may go through as a
claim [for the money owed].’ For even though no notice is then given,
it is nevertheless understood to be made because it is not the
creditor's fault that it is not made, while exigency which creates a law
demands it when it is not possible to act otherwise.
The same, or at least similar, thing happens when not the
obligation of which I have spoken above, but a payment is drafted for
a particular day. (Seneca notes that this is done in the case of money
loaned: ‘For the repayment of a benefit no day is set, as there is for
money loaned’ — De Beneficiis 3.10.1). And the reason for this
exception is not difficult to find, for when the wish of the creditor is
237
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clear, what need is there for a new demand? For even though the
debtor is not warned if he does not pay by the due date, there is
nevertheless reason for default to be punished, because the day on
which the sum was beginning to be owed had already passed, although
the day on which it could be sued for had not yet come (D.50.16.213
pr.).287 And after the day on which the money could be claimed has
arrived, the debtor has already been warned of its arrival, since he
knows that the creditor wanted it to be paid to him on the day for
which payment was drafted. This [day] therefore, instead of a person,
gives him notice, as Justinian excellently says in C.8.37.12, and even
before him Papinian in D.22.1.9 par.1 when he says that ‘a stipulation
of interest becomes binding even though the debtor is not sued.’ For
he is dealing with payment drafted for a specific date, as can be
understood from reading the introduction of D.22.1.9 together with
the words in par.1 quoted above. And I have already said above in
Chapter IV that this is especially true if there is something with which
the debtor is charged. To this I now add the words of Africanus in
D.44.7.23:
Regarding money to be conveyed overseas, a penalty had (as is
customary) been included in the stipulation with a view to the services
of the person who was to claim the money, in case payment was not
made by the due date; the person who was claiming that money exacted
a part of it, and then stopped: thereupon after an interval of time he
again began to give notice to the debtor. The jurist replied that the
penalty could also be claimed for that period during which the debtor
had not been given notice; furthermore, this was so even if the debtor
had not been given notice at all; he further replied that a stipulation can
in no way not become binding other than if it had not been the debtor's
fault that he did not pay; moreover it must be said that if the person
who had started to give notice had through ill-health stopped doing so,
the penalty was not binding.
But default ex re does not occur only in the above instances, but also
in legacies and bequests that are left for reasons of loyalty. Instead,
Emperor Justinian ruled as follows on these in C.1.3.46.4:
Furthermore we decree that the instituted heirs be compelled to pay
those fruits and returns and every legitimate increase, covering the
whole period during which they put off doing what had been arranged [in
the will], from the time of death of the one who had made the
arrangements [set out in the will], and we decree that, without
examining default on the basis of joinder of issue or of agreement,288
but by virtue of the law itself, default (as it is commonly called) is
understood to have preceded, taking into account the increase in fruits
and other things.
287
288
Ulpian here says ‘cedere diem means that the money begins to be owed; venire
diem that that day on which the money can be claimed has arrived.’ Cp.n.284.
The translation used by Noodt here has conventione for Krueger's interpellatione
(‘notice’).
Chapter X
239
It is the same thing if the buyer takes possession of the purchased
article and does not pay the price, for he is immediately held liable
for interest, even if he has not been given notice by the seller,
according to Paul in Sententiae bk.2.17.9; and Ulpian is also of this
opinion when he writes as follows (D.19.1.13.20):
The following notes come into consideration in this judgment: first of all
the price at which the thing is sold; likewise the interest on the price
after the day of delivery, for since the buyer has the use of the thing it is
absolutely fair that he pays interest on the price.
Ulpian is saying that the price at which a thing was sold comes into
consideration in an actio venditi [‘an action against the buyer’], as
well as the interest on it. From what point in time? After the day of
delivery, at least if the buyer has been given notice; as a matter of
fact, even if he has not been given notice. For since the buyer has the
use of the thing it is absolutely fair that he pays interest on the price.
Indeed, that is the rationale behind the distinction in the ius gentium
between types of ownership: of course, the purpose is that the seller's
right should not be without legal effect while that of the buyer is
valid, but that the buyer should take his fruits from the purchased
thing in such a way that the seller also receives the fruits of the price
of the thing sold. And if that should not be the case, even though no
notice has been given, default ex persona would also not be
understood to take place; yet ipsa re, that is to say by virtue of the
law itself, default is indeed understood to take place.
A similar law applies in the case of the Treasury, for to it, too,
interest is owed on too late payment arising from its contracts, even
if no default ex persona occurs. The authority for this is Paul in
D.22.1.17 par.5:
The treasury does not pay interest in terms of its contracts, but does
itself receive such payment, as it usually receives from foricarii who
deliver money too tardily; likewise payment from taxes.
Paul calls those people who enter a contract with the Treasury to
manage public toilets foricarii. Juvenal refers to them in Satire 3
v.38:
... returning from there
they lease latrines (foricae).
But the ancient Scholiast shows that there is doubt about who these
foricarii actually were when he writes: ‘Public toilets, excrement —
this is the tax. Forire means “not to throw out”, [or perhaps ‘to cast
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out the burden’].289 Some speak of taverns neighbouring on the
market-place. Others say that it is a tax on wine imported into the city
from Africa. Others again, say that the foricae are houses built at
public expense for leasing, from which the lessees used to take the
profits.’
But Cujacius (Observ. bk.22 c.34) interprets the name foricarii as
those who lease public latrines from the treasury at a certain price,
so that they can charge a small fee from individuals who are seized by
a call of nature while in the forum. Not a bad interpretation, although
I would also not reject the explanation of foricarium as ‘a tax on
wine’, as we find in the Scholiast on Juvenal.
Mention is certainly made of a vectigal foricularium290 et
ansarium291 promercalium292 in a certain ancient inscription on
marble in Gruter, p.199, Inscr.6,293 which I rather think is not the
same as the vectigal vinarium which the Scholiast on Juvenal
mentions and likewise is not relevant to this topic.
In case the reader wishes to study that inscription, I have
appended the following copy of it:
THE EMPEROR CAESAR MARCUS AURELIUS ANTONINUS AUGUSTUS
GERMANICUS SARMATICUS294 AND
THE EMPEROR CAESAR LUCIUS AURELIUS COMMODUS
AUGUSTUS GERMANICUS SARMATICUS295
ODERED THAT THESE BOUNDARY-STONES296 BE ERECTED ON ACCOUNT OF
THE DISPUTES WHICH HAD ARISEN BETWEEN THE MERCHANTS AND
CONTRACTORS297 IN ORDER THAT THEY MIGHT INDICATE A LIMIT FOR THE
FORICULARIUM — AND ANSARIUM-TAX ON COMMERCIAL GOODS, WHICH
ACCORDING TO AN OLD LAW CAN BE LEVIED ONLY ONCE.
However it may be, it is sufficient for our purpose that the Treasury
receives interest in terms of its contracts from those who deliver the
money too tardily, even though they do not commit default ex
persona.
289
290
291
292
293
294
295
296
297
i.e. the burden of the stomach: forire means ‘discharge the faeces’ (Souter). It is
clear (also from what follows) that the foricarii rented public toilets, charging a
small entrance fee and also selling the excrement, e.g. urine was commonly used
in tanneries (see Carcopino pp.53 - 54; Friedlaender on Juvenal Satire 3 v.38).
Since non foras is clearly wrong, the emendation onus foras gives better sense.
vectigal foricularium- a tax levied on goods brought into Rome for sale (‘known
only in combination with ansarium and perhaps indistinguishable from it’ (OLD).
ansarium - a duty paid on comestibles brought into Rome for sale (OLD).
promercalia are goods sold in the open market.
CIL VI.1016 a (found in Rome).
i.e. Marcus Aurelius (161 - 180 A.D.)
i.e. Commodus (180 - 192 A.D.)
I have combined Noodt's LIMIDES and the LAPIDES of the CIL.
mancipes, but Noodt gives a lectio varia municipes, which has some support.
Chapter X
241
But when once this right was established, doubt arose about
whether, if someone had bought a farm from the treasury and paid
the price too tardily, he owed it interest — not indeed from the time
of the transfer of possession (I have stated before that from that point
in time interest is owed to a private seller) but when no transfer of
possession has yet occurred. And even if in this case interest is not
owed to a private seller although it nonetheless is due to the
Treasury, it could appear to be the consequence of its privilege.298
But although it is reasonable to accept that the right of the Treasury
is upheld by the interpretation of privilege, it is however not
reasonable to accept that the right of another be transferred to the
Treasury under that guise. And this will be the case if we allow
interest to be owed on the price of a farm which has not yet been
transferred. For my question is: what is the purpose of interest on the
price of a farm which has been sold other than that it should take the
place of fruits received? If the Treasury therefore gave the buyer
access to these fruits by the transfer of possession it can rightly claim
interest, that is to say an evaluation of the fruits; but if it has not
given such access, interest would rather involve injustice and will
therefore not be claimed by the Treasury without embarrassment.
And this is what Paul meant with the following words in D.22.1.16.1:
When interest on the price of a farm was claimed from the person who
had bought it from the Treasury and the buyer said that possession had
not been transferred to him, the Emperor decreed that it was unjust
that interest be claimed from one who had not received the fruits.
A further question worth asking is whether someone who claims a
right by means of actions mandated by the Treasury, enjoys the
privilege of the Treasury. Take an example of the principle in
D.22.1.43: the Treasury succeeds Titus as heir. In his will (hereditas)
there was an entry to the effect that Maevius owed him money
without interest. Now interest is owed to the Treasury from the time
when it succeeded Titius as heir. Sejus who stood surety for Maevius
paid the debt of Maevius to the Treasury under an agreement that an
action against Maevius would be mandated to him by the Treasury.
The Treasury transfers the action to Sejus. Can Sejus now, having paid
Maevius' debt, following the right and the example of the Treasury,
claim interest for the time which elapsed after the Treasury received
the sum owed? But this does not appear to be so, because the future
interest had not been owed to the treasury, and a privilege of the
Treasury does not follow him who buys from the treasury, unless he
has succeeded in an application that such privilege be transferred to
him (C.7.73.3). And in D.22.1.43 Modestinus agrees with this,
especially if it is read thus:
298
privilegium — could here also be rendered with ‘prerogative’.
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Book 3
Herennius Modestinus replied that he who sues under actions mandated
to him by the Treasury, cannot claim interest for the period which
elapsed after the Treasury received the sum owed, if the interest was
not included in the stipulation.
The reading of the Florentine text is petere posse [‘can claim’] but it
appears that the Greek scholars read petere non posse [‘can not
claim’], for they transmit the following passage (Basilic.
bk.23.tit.3.tom.3. pag.387):
If upon my paying to the Treasury that which you owe it, the Treasury
cedes your entry in the ledger to me, I shall not claim interest for that
period which elapses after payment was made by me, unless you
promised it to me when I stipulated.
And then in the scholium (p.452) Cyrillus says:
As a private citizen I do not have the privilege of the Treasury, unless it
has specifically been ceded to me.
In the person of minors299 it was accepted that default would be
believed to occur re ipsa and solely for the late payment of a price in
bona fide contracts and bequests and legacies. The Emperors
Diocletian and Maximinian mention the following in C.2.40.3 in their
reply to Decimus [Caplusius]:
In accepted law it was believed that default occurs re ipsa in the person
of minors solely in terms of the period of late payment of a price,
namely in those things which admit of default, that is to say, in bona fide
contracts and bequests and legacies.
Thus the Emperors. And it seems that this law is owed to the decree
of Emperor Severus in D.31.87.1, for it is ascribed to him by Ulpian in
D.40.5.26.1. What led to this precaution of the Emperor was his
lenience towards an age-group which is easy-going and rash and, in a
word, not aware of its true privileges and accordingly often even not
claiming, or claiming too late, that which it is owed. That is the line
of reasoning followed by Diocletian and Maximian when they reply to
Decimus [Caplusius] as follows (C.4.49.5):
The governor of a province will take the trouble to compel a buyer who,
having obtained possession, received the fruits [of the thing], to deliver
up, with interest, that part of the price which he retained; which
interest was engendered both by the reason that fruits had been
received and by lenience towards the age-group of minors (although no
default occurred).
Decimus, younger than twenty-five years, is presented as having sold
his farm, and having handed over possession to the buyer, after
299
minores, i.e. aged between 14 and 25.
Chapter X
243
receiving from the latter only part of the price. The question is asked
what the legal position is regarding the part which the buyer retained.
The Emperors say that the buyer must be compelled to deliver up also
this part of the price to Decimus: but not only this part but interest,
too.
Now I ask: for what reason? Because the interest was engendered
both by the reason that fruits had been received and by lenience
towards the age-group of minors, although no default occurred.
That is indeed a valid argument, because although there was no
default ex persona, it nevertheless arose ex re, not only because of
the fruits which the buyer received after possession was handed over,
but also because of the lenience towards the age-group minors.
Therefore the Emperors decide that interest on a part of the price is
owed to Decimus, not because no default occurred on the part of the
buyer, but because there is an accusation of default ex re
(D.40.5.26.1), which is not true default but quasi-default, not proper
default, and default through similarity [to true default]. And it
happens not only in this case but also in others that what was not
properly so, is included in the same term because of its similarity to
what is properly so. Listen to what Seneca has to say in De Beneficiis
bk.5.13.3:
Because of their similarity to the genuine article, some things have been
embraced in the same term even if they are not truly the same. Thus we
speak of a ‘silver’ and a ‘golden’ casket (pyxis);300 thus, too, we call a
man ‘illiterate’ if he is in fact not completely uncultivated, but has not
advanced to the higher branches of learning; thus also someone who
sees a man poorly clad and in tatters says that he has seen a ‘naked’
man.
Likewise default ex re is not true default but is understood to
resemble default, and therefore if it is compared with that which is
ex persona and which is true default in its proper sense, it is not
understood to be default, simply because it is not default in all
respects, but depends on the lenience towards a person and is not
lasting but is temporarily understood to be equivalent to default until
the person reaches the age of twenty-five, whereas true default is
lasting, as Papinian neatly remarks in D.31.87.1:
I replied that interest on a bequest is owed to the girl after she has
turned twenty-five, [only] from the time when default occurred; for
although it was ordained that interest should by all means be paid to
those younger than twenty-five, this must nevertheless not be held to
take the place of default, for it is sufficient that default occurred only
once for interest to be owed lastingly.
300
a small box used mainly to contain medicines, usually made of ordinary boxwood.
244
Book 3
But perhaps this is more than enough about C.4.49.5, unless it also be
added that that passage was separated from C.2.40.3, since it was
originally joined to it.301 For both have the same introduction, and
the tenor is the same in both — indeed, the reasoning of the earlier
passage is found in the later one.
What then if by joining the two, the meaning which has thus far
anyhow been probable now approaches certainty? But this will be
clear if the two passages are put together, as in the following example
which I have presented:
The Emperors Diocletianus Augustus and Maximinian Augustus to
Decimus:
The governor of a province will take the trouble to compel a buyer who,
having obtained possession, received the fruits (of the thing), to deliver
up, with interest, that part of the price which he retained; which
interest was engendered both by the reason that fruits had been
received and by lenience towards the age-group of minors (although no
default occurred);302 since in accepted law it was believed that default
occurs re ipsa in the person of minors solely in terms of the period of
late payment of a price, namely in those things which admit of default,
that is to say, in bona fide contracts and bequests and legacies.
I did not myself notice this combination, which is neat, in the previous
edition of this work, but I owe it to the diligence and kindness of that
most learned gentleman Johannes van de Water, a jurist from
Utrecht, a former student of mine, who later brought it to my
attention in a friendly conversation. And I felt that I had to make this
clear.
Furthermore the following extract from Papinian will also be
understood in the light of the above (D.22.1.1):
If a partner is to be found guilty because he has laid his hands on money
belonging to the partnership or channelled it to his private use, interest
will by all means be paid, even if default does not occur.
He means that if a partner lays hands on money belonging to the
partnership, or channels it to his private use, he is liable to his partner
for interest, even if he has not been given notice by him. This is
absolutely just: after all, it is fitting that in ownerships distinct from
one another, one who ascertains that something has come his way
from another person should of his own accord give it back to him. But
a partner does not act in a sphere that is his partner's, wanting
301
302
Krueger has a note (6) on C.2.40.3 reading ‘iunge 4.49.5’.
Thus far C.4.49.5. What follows is C.2.40.3.
Chapter X
245
something for himself which he begrudges his partner; for a
partnership is (as I pointed out in Bk.1 chapter V)303 an equalizing of
souls and a kind of image of brotherhood. Therefore the moment
when a partner lays hands on money belonging to the partnership, or
with the intention of making a profit channels it to his private use, he
is bound by an actio pro socio and an actio furti (D.17.2.45), and even
though he is not given notice by his partner, he is held to be in default
through the very power of ownership304 and of partnership, that is to
say of the very truth of the matter. (D.13.1.8.1; D.43.16.19). Finally,
he will by all means pay interest, even if default does not occur, that
is to say even without giving notice to his person — which is called
default in the proper sense.
Gordian is our authority that the same thing or something similar
applies in the case of a deposit, if the depositary has used the thing
deposited against the wish of its owner (C.4.34.3 and 4).
303
304
See p.33 above: there Livy is quoted as referring to an equal distribution of a
right (aequatio iuris).
Also possible: ‘on account of violence to ( the principle of) ownership ...’.
Chapter XI
Duration of the liability to pay interest at judicial discretion
in actiones bonae fidei
[Summary]
Up to what date is interest owed in bona fide actions in accordance
with judicial discretion? The meaning of D.22.1.1.2 and of various
other passages.
*
*
*
It is clear from the above that in bona fide actions in accordance with
judicial discretion interest is mostly owed on account of default. But
sometimes it is owed in any case, without default being committed.
For how long is it owed? Up to the day of the judgment. What
happens if the person against whom the judgment has been given
were to satisfy the judgment too tardily? In D.22.1.1.2 Papinian says;
Nevertheless a judge in a bona fide action will not order warranties to
be furnished with the effect that if a person obeys the sentence too
tardily, interest would be paid for the future.
What Papinian is saying is that although a judge appointed by the
praetor in bona fide actions, orders a defendant to pay interest for
the preceding period up to the day of the sentence, yet he cannot
compel him to furnish a warranty regarding the payment of interest
for the period after the judgment.
246
Chapter XI
247
And Papinian provides a reason, which is ‘because it is within the
capacity of the one bringing the action to exact the payment
ordered.’ But that reason is too inconsiderable to be adequate, for
the plaintiff's ability to protect himself by instituting an actio rei
adjudicatae [‘action on a matter adjudged’] does not imply that he
ought therefore not to consult his own interest in other ways. So Paul
provides another reason in his note to the words of Papinian in
D.22.1.1.2 when he adds: ‘For what does the dealing with matters of
the future have to do with the duty of a judge?’
Now this is a rhetorical question (erotesis),305 often used by the
Ancients, the meaning of which is that dealing with matters of the
future has nothing to do with the duty of a judge. And that meaning
will be clearer still if we consider the fact that in bona fide actions
interest runs up to the judgment: thereafter it is within that period of
the judgment which is conceded to the debtor on humanitarian
grounds (D.16.2.16.1) and he is therefore exempted from default. But
once this period has passed, interest again runs, not however the old
interest but a new one, and that based on the matter adjudged, and
not before an agreement has been concluded, as will be shown further
on, in accordance with the custom of that period (saeculum).
If this is so, it is clear that dealing with matters of the future does
not have to do with the duty of a judge, because when he delivers
sentence he must fulfil his function regarding the interest which was
before the court, but this interest was no different from the interest
then running. But if afterwards some future interest was to be
expected on the strength of the matter adjudged, the function of the
judge cannot refer [retrospectively] to that interest since the later
interest was not before the court, and when it now arises he will no
longer be the judge, since his function was fulfilled through delivering
the judgment and there would subsequently be an action rei
judicatae before another judge still to be appointed by the praetor.
But on the other hand Papinian writes (D.5.1.41): ‘In all bona fide
actions, when the day on which the money is to be paid has not yet
come, if someone brings an action for the furnishing of a warranty,
judgment is done on just grounds.’
So investigation into matters of the future can also fall within the
duty of a judge. But let us take care not to apply that which hinges on
the present to what lies in the future. For Papinian speaks of an
obligation ‘up to a specific date’ of which the enforcement is deferred
when that day is at hand (D.45.1.46), for the day on which the sum
was due has arrived, but not yet the day on which it could be
demanded (D.50.16.213) and an action can not be brought in terms of
305
See Lausberg vol.I par.767 (pp.379 - 380): the normal Latin term is interrogatio.
248
Book 3
that [obligation] before the day that payment should be made. But
Papinian is rightly of the opinion that if it is not this which is being
asked for but a warranty (D.5.1.41), then it is consistent with the duty
of a judge in a bona fide trial that he upholds the obligation in respect
of the day when it was due, although the day on which it could be
demanded had not arrived, by furnishing warranties for the time until
enforcement could be granted.
But if some future matter is of such a nature that it does not hinge
on present time (which is the case if the question concerns future
interest, after judgment) then it is more likely that dealing with it
would not seem to involve the duty of the judge, because judgment
is not given on what is not owed now, although at some time in the
future it might be owed. According to Papinian a new action is then
necessary (D.22.1.1.2), or else a new demand, as Paul and Javolenus
say (D.5.1.23 and 35; D.39.3.14.4).
But C.7.46.1 presents a problem, where Severus and Antoninus
give the following reply:
Since you declare that the judge said that the law regarding the
payment of interest applied until such time as the money of the
judgment had been paid, it is plain that the judgment was not given
contrary to the tenor of the law.
The Emperors mean that a judgment holds good where the Judge
orders that interest on money included in the judgment be paid until
money owed is paid. They therefore mean that a judgment in which a
judge pronounces on future interest holds good: unless it is put
forward that a suit was there brought under the actio rei judicatae,
and in that case the Praetor appointed a judge who passed judgment
that interest on the matter adjudged must be paid until the money
allotted to the plaintiff in the foregoing dispute had been paid; and
because he has in his judgment specified the amount of neither the
money nor the interest, the question is raised whether the judgment
holds good, as the Emperors think. They naturally think so because
the amount adjudged is clear from the foregoing judgment, and the
Judge refers to that amount in this subsequent judgment. The rate of
interest on the matter adjudged is also settled by the definition of
Public Law. Therefore the judgment is settled.
‘But the Judge pronounces on future interest’. Don't think so. He
is rather pronouncing on this interest which is owed after the period
of the judgment, when an agreement has already been drawn up, as
was necessary at the time of Severus and Antoninus, when interest on
an adjudged matter did not yet run by virtue of the law itself, but
once notice had been given to the plaintiff.
And there is no need of further argument. Papinian refers to this
in D.22.1.1.2 when he says that a judge in a bona fide action does not
Chapter XI
249
rightly allow warranties to be furnished, so that if the person to be
adjudged should be too tardy in complying with the judgment, the
interest on the future period would be paid. And he adds the following
reason: ‘because it is within the capacity of the one bringing the
action to exact the payment ordered.’
Likewise the Emperors Gratian, Valentinian and Theodosian
decreed in the single title de usuris rei judicatae in the Cod.Theod.
that three months after judgment was delivered the debtor is held
liable for twice twelve per cent p.a., but only if he was given notice.
And this is to be noted, for although it was later changed by Justinian
(C.7.54.2 and 3) it also long before that did not apply in the case of
the Treasury (C.7.54.1), as I point out elsewhere.
Chapter XII
Liability to pay interest at judicial discretion excluded in
actiones stricti iuris; the effect of litis contestatio
[Summary]
In actions of strict law interest is not owed in accordance with
judicial discretion, not even from the time of joinder of issue.
*
*
*
In bona fide and any comparable actions, therefore, interest is owed
on the grounds of default in accordance with judicial discretion, even
if it has not been promised [by the debtor]. But in actions of strict law
it can not be owed on the grounds of default in accordance with
judicial discretion if it has not been promised, although it can be
claimed in terms of a stipulation if it has been promised in the
preceding questioning of the prospective debtor by the prospective
creditor. And there is a manifest fault (although it is already found in
the customs of that age) in the view of those who are of the opinion
that interest is owed in actions of strict law after joinder of issue even
if it has not been promised. I believe that they are so prompted by the
fact that it is generally accepted that a cause [of action] is offered to
the plaintiff with a view to that day on which judgment is delivered,
for as a thing is when it is sought, so it must be when it is given, also
in these actions which do not depend on the decision of a judge and
are not bona fide actions (D.12.1.31). But this has to do not with
interest but principally with fruits and a few other things (D.22.1.2
and 3.1). But indeed Ulpian writes as follows in D.22.1.34 that
250
Chapter XII
251
‘interest takes the place of fruits, and justly must not be separated
from fruits.’
And so it is, but, if we pay attention to what Ulpian says, not
everywhere, ‘but it is upheld [only] in legacies and bequests, and in
an action on guardianship and in the other bona fide actions.’ And as
I have said above, this was not accepted through the natural power of
those actions but through the decrees of Emperors. It is therefore not
to be extended to other things on which such a decree was not made.
Actually the opposite position must be upheld in these cases,
namely that expressed by Pomponian on the basis of ancient law, in
D.50.16.121:
The interest which we receive on money is not in the fruit, because it is
not from the object itself but from another cause, namely a new
obligation.
But for the meaning of the law to be more easily understood it must
be noted that it was taken from Bk.15 of Ulpian's Ad Edictum, from
which the passages in D.5.3.20, 25, 27 and 29 were likewise taken,
and that it indeed refers to a decree of the Senate on the claiming of
an inheritance, the words of which are to be found in D.5.3.20.6; and
which ordains nothing else than that the possessor of an inheritance
is in terms of the Senate's decree to restore to the heir any interest
he may have received from the inherited money, just as much as fruits
received from the things inherited. For what reason? Because interest
takes the place of fruits, and justly must not be separated from the
fruits. And this is confirmed by the fact that after the decree of the
late Emperor [Antoninus] Pius it is so observed in the case of legacies
and bequests, both in an actio tutelae [‘action on guardianship’] and
in all the other bona fide actions, as has been said above. So why not
then in the claiming of an inheritance?
I have now replied to the first argument by which learned men
have been misled. I now come to the second one, which arises from
D.22.1.35: ‘Interest runs after joinder of issue’. Now this is explained
as if it means that interest begins to run after joinder of issue, and
the expression is understood in that sense by Paul himself (D.12.1.31)
and by Ulpian (D.26.7.7.7). But although that seems to be Paul's
opinion, he does not mean that if interest did not run before joinder
of issue they began to run after it: he actually means that if interest
ran before joinder of issue it still kept on running after it, in the same
sense as Persius uses ‘to go on sweating’ for ‘to sweat’ in Sat.5 vv. 149
[-150]:
What is your aim? That the coins which you have nurtured here on a
modest five per cent should carry on to sweat out a greedy eleven per
cent?
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Book 3
And Casaubonus306 draws attention to this.
The Emperors Severus and Antoninus, in whose reign Paul
flourished, proclaimed in C.3.1.1 ‘The stipulation of interest does not
become void once judicial proceedings have commenced.’ And before
their time Pomponian already said (D.45.1.90): ‘Even if the obligation
of the principal is included in the judgment, the penalty nevertheless
still grows.’ This is indeed what Paul says with ‘After joinder of issue,
interest runs’, or does not cease running, in the same way as Marcellus
in D. 41.6.2 says ‘usucapion will run’ meaning ‘will keep on running.’
And this will be clearer if we bear in mind that D.22.1.35 is part
of D.46.2.18, for both passages are taken from Bk.57 of the Ad
Edictum of Paul, and should be joined more or less as follows:
Once novation307 has legitimately taken place, the hypothecs and a
pledge are discharged, interest does not run; [but] after joinder of issue
interest runs.
The meaning is this: hypothecs and a pledge are discharged by
novation which is legitimately done with the consent of the creditor
and the debtor, and interest ceases to run, of course because the
principal obligation has been extinguished with the consent of the
creditor, and thereafter accessory elements no longer exist. But if
issue has been joined between the creditor and the debtor, it is
nonetheless not the same, although it may appear to be so (because
novation is understood to take place also through joinder of issue):
this is of course so, because that novation takes place through
necessity and the position of the plaintiff becomes better and not
worse. (D.46.2.29).
Interest therefore runs after joinder of issue, that is to say if it ran
before, it does not cease running after joinder of issue; but if it did
not run beforehand it does not begin to run as a result of joinder of
issue; although it was decided that if after the judgment the adjudged
sum is not paid within the time which is conceded to those against
whom judgment has been given, interest on that begins to run on the
strength of the judgment. (C.7.54.2).
306
307
Isaac Casaubon (1550 - 1614) wrote a highly regarded commentary on the Satires
of Persius.
novatio is ‘the transformation of a former obligation into a new one’(Berger).
Chapter XIII
Interest recoverable as ‘loss of gain’
[Summary]
In arbitrary actions interest is never owed in accordance with judicial
discretion as interest, but it is sometimes owed as damages. The
reason for this. Ulpian in D.21.1.29.2 is explained.
*
*
*
Now that I have spoken about the practice regarding interest in bona
fide actions and actions in strict law, continuity of argument requires
that the principle of arbitrary actions308 be examined briefly. Those
actions depend, as the name indicates, on the decision of a judge
(Inst.4.6.31). But the Imperial decree which introduced interest ‘in
accordance with judicial discretion’ spoke only of bona fide actions
and legacies and bequests, but it did not speak of arbitrary actions
any more than of actions in strict law. Therefore interest is not at the
discretion of the judge in arbitrary actions, for interest did not apply
in these actions before that decree, nor was it later introduced by
that or any other decree. It would however be possible that it could
sometimes be adjudged in these actions, not as interest but as
damages, more or less on the same principle on which interest in bona
308
Also called ‘discretionary actions.’
253
254
Book 3
fide actions was allowed on the authority of Labeo, before that
decree — as I have previously pointed out on the basis of D.17.2.60.
In order to provide an example I append the words of Ulpian in
D.21.1.29.2:
Judgment is then given for the value of the matter in dispute. Let us see
whether this goes beyond the price or not: and indeed the judgment
includes the price and additions. And would the judgment also pursue
the interest on the price, as if he ought to receive damages, especially
since he is also himself giving back the fruits? And the decision is that it
will do so.
Ulpian's argument is about the money which the seller must give back
to the buyer if the purchased thing is returned: that money is then
claimed through an actio empti (‘action upon the purchaser’),
(D.19.1.11.3), which is a bona fide action; so too an actio Aedilicia
(‘an action introduced by the edict of an aedile’) based on a fact (in
factum),309 which is an arbitrary action, as is clear from D.21.1.29 pr.
and 3; also 31. 9 and 13. Both these actions are applicable to
damages, but in D.21.1.29.2 Ulpian is dealing with an arbitrary actio
Aedilica based on a fact. In that action interest does not properly
come into consideration through the discretion of a judge, because
that has not been approved in any decree. Nonetheless Ulpian thinks
that with that action the buyer can pursue interest on the price, not
as interest proper but as damages, and that the reasoning behind this
is that in an arbitrary action the evaluation of the judge is based on
how compensation should be given to the plaintiff; and since in
returning the article of purchase the buyer gives back to the seller not
only the article but also its fruits, it in turn appears to be only fair and
just that the seller gives back to the buyer not only the price but also
the interest, as damages, especially since interest takes the place of
fruits; nor would equity allow the seller to have the fruits of both the
thing and the money with harm to the buyer.
309
See Berger s.v. Formula in ius concepta.
Chapter XIV
Termination of the running of interest
[Summary]
An end is put to interest when an end has been put to the principal
by force of law, as by settlement: but this applies to future, not to
past, interest, especially if it is owed by agreement. What is the
position when interest comes into consideration in accordance with
judicial discretion? An end is also put to interest in all the other ways
in which an obligation is terminated by virtue of the law itself, as
through set- off and novation.
*
*
*
It remains for us to see in what ways interest ceases to be owed, for
there are quite a few. First of all these I would place payment of the
principal, because by that the debtor is freed of the obligation in
terms of which he owes interest: but when once the principal debt has
been removed there cannot be room for interest, that is to say, for
addition (accessio) (D.50.17.178). And this no-one doubts, insofar as
it deals with future interest; for since interest is owed for the use of
the principal, then when once the use because of which it is owed is
removed, it cannot be understood to exist. So in the Mostellaria of
Plautus (3.1; [v.592]) the moneylender has a case when he refuses to
accept the principal before the interest has been paid:
Tranio: Take the principal.
Moneylender: No, the interest — that's what I want first.
255
256
Book 3
Artemidorus310 refers to the same thing in his Onirocritica bk.4 c.82:
A certain man who desired to have sons, in a dream saw himself meeting
a debtor and receiving the money owed to him: he gave the debtor a
receipt and a confirmation that he had accepted the money owed to him
— that then was the dream he had. It is further told that when the
interpreters of dreams in Alexandria were unable to explain the meaning
of his dream this man, uncertain about what it portended, appealed to
Serapis311 to unravel the mystery for him. And indeed Serapis appeared
to him in a dream, saying ‘You will not have sons, because someone who
has issued a receipt does not receive interest.’ Now in Greek any
offspring and young son is called a τοκός, and the same word also means
interest.
But when we enquire about past interest we must distinguish whether
it is owed in terms of an agreement or in another way. For if, for
example, a stipulation has been included in the contract, then
interest is owed even though the principal has been paid, of course
because there are two obligations — one for the principal and the
second for interest (D.45.1.75.9; D.13.4.8), of which the one on the
principal has been met; but nothing prevents the one on interest from
continuing, because in that obligation the interest is not considered
to be an addition to the principal obligation but is considered to be
owed in terms of a new cause, that is to say, in terms of a new
obligation (D.50.16.121).
That is the case if the interest is based on an agreement, but the
opposite must be said if the interest is owed in another way, as on the
basis of default, because then it does not arise from an obligation but
is arrived at in accordance with judicial discretion (D.19.2.54).
Finally, here there are not two obligations, namely a second one for
interest, as in the previous case, but the one obligation for the
principal, and once this has been met through payment of that
principal there is not an action nor a judicial discretion, nor a claim
for interest left. And this is what Hermogenianus points out when he
says (D.19.1.49.1): ‘Interest cannot be claimed on the price, even if
the principal was paid after default, because this interest is provided
not in an obligation but in accordance with judicial discretion.’
And it is the same if, when interest is owed in accordance with
judicial discretion in bona fide actions, the judge has omitted it in his
judgment and no appeal (provocatio) has followed (C. 4.34.4;
C.4.32.13), although another law applies in the case of interest which
is owed by stipulation (D.13.4.8).
310
311
Late 2nd cent. A.D. Greek author who wrote this book on prescriptive dreams the only extant dream-book of ancient times.
Serapis (from Osiris - Apis) was lord of the underworld in Egyptian mythology.
Chapter XIV
257
But interest ceases not only through payment of the principal, but
also through set-off (C.4.31.4) and novation, especially if a stipulation
has been made which with the consent of the contracting parties
removes an obligation of both Civil and Natural Law. No wonder then
if it also seems to remove an accessory obligation (D.46.2.18).
What if novation occurs through joinder of issue? As with a
stipulation so, too, when a judgment is accepted, the contract is
certainly made in such a way that the previous obligation, with
judgment following thereafter, is transferred to the obligation of
what has been adjudged (D.15.1.3.11; D.20.1.16.6). But that novation
differs from the one above, because it occurs not willingly on the part
of the contracting parties as that one does, but against their will
(D.45.1.83.1) and by necessity (D.42.6.7), and it does not weaken the
plaintiff's cause but improves it (D.46.2.29).
Therefore although interest stops running immediately after a
novation through stipulation takes place (D.46.2.18), nevertheless it
keeps on running until sentence is passed if the novation takes place
through joinder of issue (D.22.1.35); thereafter this interest is held
back and another takes its place in terms of the adjudged case
(C.7.54.3.2).
Chapter XV
The effect of tender and mora creditoris on the running of
interest
[Summary]
On the offering, sealing and depositing of principal and interest when
the creditor is in default, and on the consequence thereof. And what
if the debtor receives back the offered, sealed and deposited money?
Whether, and when, the principal obligation is extinguished after the
offer has been made without the sealing and deposit following, and
whether that is done by the force of law or with the help of an
exception. The disagreement between the Sabiniani and the
Proculiani. Marcellus in D.46.3.72 is freed from an error under which
he has hitherto laboured. What is the position in the case of interest
owed due to default or in terms of a stipulation or in accordance with
judicial discretion? Jacobus Cujacius and Antonius Faber are refuted,
and at the same time a notable and troublesome dispute which has
up to now disturbed the harmony between Papinian in D.22.1.1.3 and
Marcellus and Ulpian in D.26.7.28.1 is settled by showing the
divergent usage of the times in which they flourished. In D.26.7.28
neither the style nor the fault of Tribonian can be identified,
although Antonius Faber suspected this, neither is his conjecture on
Paul in D.3.3.73 any more successful. The very intricate passage of
Scaevola in D.45.1.122.5 is unravelled. In the opinion of the most
highly esteemed scholars antichresis can be discharged only by
oblatio: that opinion is far from the truth. The passage by Antoninus
in C.4.32.11 is slightly emended, and explained. What happens in the
case of interest on liquid or solid products?
*
*
258
*
Chapter XV
259
Interest is also cancelled by the offering, sealing and depositing312
of the principal and the interest. Suppose a debtor-at-interest
(usurarius) (for so he is called in D.22.1.7) offers the principal and
interest to the creditor, and the creditor refuses to receive it,
motivated not by reason but by the benefit of the interest and the
wealth of the debtor (Seneca touches upon this custom in De
Beneficiis bk.2 c.17 in these words: ‘A moneylender usually gets a bad
name when he is harsh in demanding, and equally so if he is reluctant
to accept and obstinately seeks deferment’): it is now sufficient for
the debtor to have offered the money owed together with the interest
on it, to have sealed it in a bag and to have deposited it. For
reasonableness does not allow that the creditor can decide whether a
debtor who is prepared to pay him what he owes, be relieved of his
debt. Therefore if the creditor without reason declines to accept the
principal with interest offered to him, and the debtor seals and
deposits it, then although he is in the proper sense of the word paying
nothing, yet because he is held to be paying, he is immediately freed
from his debt of the principal (C.8.42.9) and the interest (C.4.32.6
and 19). And that is what Papinian says in D.22.1.7 ‘From that day on
he will not be held accountable for interest’, and before him Cicero
in Ad Atticum 6.1.7: ‘The interest allowed in my edict ought to have
stopped. [The Salaminians] wanted to deposit the money.’
But for this to be lawful it is not enough that the money has been
sealed and deposited by the debtors, but it must also have been
offered to the creditor (C.4.32.2), especially in the presence of
witnesses (C.4.32.6) or — as the Emperor Philippus says in C.4.32.19
— after a contestatio [‘declaration before witnesses’], of course with
the purpose that if it were to be denied that the offer was made,
there may be people by whom it could be confirmed (C.8.28.2).
Furthermore the debtor must offer the creditor the whole principal
and interest on all of it, and that at an appropriate place and time;
for if he makes the offer at another time or at another place, or he
offers not all the interest, or only part of the principal, the creditor
has reason to refuse acceptance of payment. For that reason it is
closer to the truth that discharge of debt does not follow, nor is
payment of interest on the whole debt held up (D.22.1.41.1; C.8.42.9;
D.46.3.39).
But just as it is not enough that the principal with its interest be
sealed and deposited unless it was first offered, so also is it not
enough that it was offered unless it was then sealed and deposited.
For that is what Ulpian says in his note on Marcellus in D.26.7.28.1.
312
A debtor wanting to pay his debt but unable to do so owing to the creditor's
absence or unwillingness to accept the money, could offer to pay (oblatio) the
sum due, and then deposit it in a temple or a public office (depositio) in a bag
which was sealed (obsignatio). Usually rendered ‘to offer and deposit under seal’.
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Book 3
Papinian requires the same in D.22.1.3 and 7, as do Antoninus
(C.4.32.6 and 9) and Philippus (C.4.32.19). But it must also have been
deposited in a safe place (D.26.7.28.1), such as a public venue, and
Philippus correctly stipulates (C.4.32.19) that it must be considered
to be a most hallowed temple, or else a place where a competent
Judge who has been approached regarding that matter, has
prescribed that it be deposited. For Cicero, too, mentions a shrine in
that context (Ad Atticum 6.1.),313 and Plautus, among others points
out that it was customary for money to be placed in sacred places and
to be guarded by the State (Bacchides 2 v.72). In this case, therefore,
a ‘public place’ is for Emperor Philip a consecrated temple. He adds
‘or else a place where a competent Judge who has been approached
regarding that matter has prescribed that it be deposited’; a case of
this nature is found in D.17.1.56.1. These things apply if the creditor
is present. What if he is absent? Then the debtor must insist on action
by the Governor in this matter (C.4.32.6).
Therefore an offer — but then one followed by sealing and
depositing — cancels an obligation by force of law, and not only the
obligation but also the interest. So it happens that the debtor, even
if he is thereupon given notice by the creditor, is neither understood
to be committing default nor is he held liable for principal or interest,
that is to say if he does not then take back the principal with its
interest: for if that happens there ceases to be a deposit, and the
former action, which has been annulled, is revived; although not the
direct action, for that cannot happen if the rules of law are upheld
(D.31.66.1; D.45.1.83.5), but an actio utilis314 (C.4.32.19.40). This is
of course so because when the reason for the release from debt ceases
to exist due to an act of the debtor, that release must of necessity
also cease to exist. The consequence of this is that if the debtor is
thereupon given notice by the creditor and does not pay what he
owes, he is in default (D.18.6.17[18]), since the previous default has
now been wiped out by the later one. Therefore the debtor will again
owe the same interest from that time on for which he was liable
before the depositing and sealing. And this is what Papinian means in
D.22.1.7 when he gives the following reply:
A debtor at interest offered money to his creditor, and when the latter
refused to accept it, he sealed and deposited it: from that day on there
will be no cause for interest. But if thereafter the debtor is sued to pay
and commits default, the money will from that time onwards not be
without interest (sterilis).
313
314
There is no mention of a fanum in this letter. In par.7 Cicero merely says
‘deponere volebant’.
An actio utilis was an action adapted to a case not covered by the action in its
original form, viz. the actio directa.
Chapter XV
261
Thus Papinian. But since he expresses himself somewhat obscurely
he will need to be helped with an explanation. But it needs to be
observed that he does not say that a debtor commits default if after
offering and depositing the money he is sued by the creditor and does
not pay the money, and that therefore the money will not be without
interest: but what he does say, is that if the debtor offered the money
to the creditor, and when the latter did not accept it, sealed and
deposited it, and was later sued to pay and committed default, the
money would from that time onwards not be without interest. But
that does not mean that the interest runs from the time when the
debtor was sued after depositing and did not pay, for that is indeed
not so if he did not take back the money: for someone against whom
there is no action cannot lawfully be sued: so when an action is
lacking there is nevertheless no default even if the debtor has been
sued (D.50.17.88). Consequently, if default has not been committed
the debtor cannot be held liable for interest. But Papinian means that
the money will not be without interest, not from that time when the
debtor was sued for payment but from the time when, having been
sued, he committed default; and this occurs if the debtor first
deposited the money, then took it back, and being thereafter sued to
pay the money which had been taken back, did not pay. For then he
is lawfully sued, and if he ceases paying after having been sued, he
commits default and is therefore held liable for interest. So it was, if
offer, sealing and depositing took place.
But what is the position if an offer has been made, without
subsequent sealing and depositing? The debtor is not released from
debts as long as the offered matter still stands, but if it has been
quashed he is released, whether his negligence has been quashed or
whether there was no negligence, as long as there is not an allegation
of fraud (D.24.3.9;315 D.18.6.18[17]). But he is not released by virtue
of the law itself (although Massurius Sabinus, with the concurrence of
Javolenus thought so in D.45.1.105) but with the aid of an exception;
and this appears to have been the preferred view of the Proculiani,
whose opinion prevailed, especially in actions of strict law
(D.45.1.73.2; D.30.84.3); for in bona fide actions the debtor is still
released by virtue of the law itself, not because in bona fide actions
the same exception of intentional deceit (exceptio doli mali) does not
fall to the debtor, but because although the same exception applies
in both instances, it is exercised differently in bona fide judgments
from judgments in law; this is because an exception is contained in a
bona fide judgment, but it is not contained in a judgment in strict
law. Therefore in the one judgment it must be declared before the
judicial magistrate (in jure) and be inserted in his formula by the
315
Noodt’s reference to D. Soluto matrimonio is probably incorrect. He probably
intended D. de Solutionibus, i.e.D.46.3.17
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Book 3
praetor, in order that it may eventually, after joinder of issue, be
dealt with by a judge; but in the other judgment it is of no relevance
that it be declared before the praetor and be inserted in his formula,
because even if it has been left out before the praetor it is dealt with
by a judge after joinder of issue, as I pointed out in my De
jurisdictione et imperio Bk.1, c.13. Marcellus demonstrates both in
D.46.3.72:
If someone who owes ten [thousand sestertii] has offered them to his
creditor and the latter has without just cause refused to accept the
money, and if thereupon the debtor loses it without any negligence on
his part, then he can protect himself with an exception of intentional
deceit, even though he was at some time given notice and did not pay;
for it is not equitable that he be held liable for the lost money, because
he would not have been liable if the creditor had been willing to accept
it and therefore that in respect of which the creditor had committed
default in not accepting it ought to be considered as paid. And indeed if
a slave was part of a dowry and the husband offered him [to the wife],
and that slave died, or if he offered money and when his wife did not
accept it, lost it — then he by force of law ceases to be liable.
Thus it is published in all copies. I would, however, dare to read ‘If
someone who owes ten [thousand sestertii] has offered them to his
creditor and the latter has without just cause refused to accept the
money, and if thereupon the debtor lost it, then with an exception of
intentional deceit ...’(and what follows); for the words ‘without any
negligence on his part’, which I have deleted, belong to someone else,
as I shall, God willing, prove more fully elsewhere. Consequently, for
as long as the matter offered still stands, a bare offer will not release
the debtor. And this is so much so accepted, that if the creditor who
has without just cause refused to accept the debt were thereafter to
claim from the debtor, he would place the non-payer in default
because he claims before a judicial magistrate (in jure) (D.18.6.17/
18). This indeed serves as proof that an action based on a bare offer
was not immediately quashed, neither by force of law itself nor by the
aid of an exception: for if this were the case the creditor would not
have a claim, at least not effectively: and if that claim were lacking
a debtor against whom no claim could be laid, could not be in
default.(D.50.17.88; D.12.1.40).
But just as a debtor is not released from his principal debt, so also
is it reasonable that he is not released from the debt of interest, at
any rate if it is owed from the day of the agreement. For then it is
called foenus in the proper sense of the word: and the matter does
not relate to reparation of loss caused by default, but to profit.
But what if interest comes into consideration due to default?
There are those who think that such interest is discharged by the offer
alone: this school is led by Jacobus Cujacius (ad D.45.1.122.5) and
Antonius Faber De erroribus pragmaticorum, decad.22. error 5,
Chapter XV
263
especially if the interest is owed in accordance with judicial
discretion. And they adduce as their reason for thinking so the
argument that a preceding default is wiped out by a subsequent offer
(D.45.1.91.3). But if this is accepted the same will apply in the case
of a stipulation by which interest is promised on the basis of default
— but nobody would say this, why even Cujacius and Faber rejected
it. Therefore interest will also not be stopped by an offer alone, if it
is owed in accordance with judicial discretion.
But what is the point? To me it appears very different. I think that
whether interest due to default begins to run in terms of a stipulation
or in accordance with judicial discretion, it is not stopped by an offer
alone; but if it has not run before the offer it cannot begin running
after the offer.
‘Explain to me the arguments.’ Take them from D.22.1.1.3;
D.26.7.28.1; D.45.1.122.5 — all true and attractive arguments, but
needing to be explained more fully, for virtually through ignorance of
the history of interest these teachings are not available to the public.
Certainly the very learned gentleman Antonius Faber was misled as a
result of this ignorance to suspect that in D.26.7.28.1 the
interpretation of Ulpian was either unfortunate or else disfigured by
an interpolation of Tribonian. And since this is not so, I shall to the
best of my ability relieve both those scholars of Faber's false
accusation. But I shall first explain the words [of Papinian in]
D.22.1.1.3, which read as follows:
A broader interpretation has been given, as a concession to wards,
regarding accountability for guardianship (tutelae restitutio),316 for
today no one doubts that if a judge is involved, interest is paid up to the
day of judgment, or if the matter is settled out of court, then up to the
day when the guardian gives account. Clearly, if a guardian voluntarily
enters an agreement with a ward who is unwilling to institute
proceedings by a iudicium tutelae [‘action of guardianship’] and offers
the money, seals the bag and deposits it, he will from that point on not
pay interest.
When Papinian says that ‘a broader interpretation has been given, as
a concession to wards, regarding accountability for guardianship’, he
means that with regard to an actio tutelae a looser and more
sympathetic interpretation has been given than in the other bona fide
actions with which he dealt in D.22.1.1.2 and 3; for the term tutelae
restitutio is to be understood as it is used in D.26.7.28.1. An actio
tutelae is indeed instituted after puberty,317 and at this age a ward is
said to be capable of managing his own affairs (Inst.2.16 pr.;
316
317
See G.H. s.v. restitutio tutelae, an interpretation supported by Noodt's following
explanation.
pubertas was reached, at least from the time of Justinian, at the age of fourteen
in males and twelve in females.
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D.28.6.39) and to receive ‘guardianship of himself’, as in Suetonius
Divus Claudius 2.2, whereas before that he was in the guardianship
not of himself but of a guardian. Therefore regarding a tutelae actio,
a broader, that is to say more indulgent and sympathetic,
interpretation was given than in the case of an actio pro socio and the
other bona fide actions.
Why was this so? Because goodwill towards the age-group of wards
demanded that interest be owed in a tutelae actio by force of law
itself, without giving notice to a person, whether or not the guardian
laid his hands on his ward's money or diverted it to his own use: and
this is not the case in an actio pro socio. And Papinian says that this
is an established rule ‘today’ (D.22.1.1.3); this ‘today’ is after the
decree of Severus to which I drew attention elsewhere regarding
D.40.5.26.1.
That is enough about the first question of Papinian, which
concerned the day from which a ward's interest ran. Now the second
question follows: up to what date does it run? In that matter he makes
the following distinction: either a Judge is involved in the accounting
for guardianship or else the accounting is settled out of court.
Firstly Papinian says that if a judge is involved, that is to say if an
actio tutelae is instituted in order that account be given and the
balance be paid, interest is owed up to the day of the judgment
(D.26.7.46 par.3), that is to say up to the day when judgment is paid.
But understand this as the day of the judgment. C.2.26.1, D.32.29.3
and D.21.2.29.2 must be understood in this sense, although elsewhere
it indicates the day of joinder of issue.
This is the situation if a judge is involved in the accounting for
guardianship. What if guardianship is accounted for out of court?
Papinian says that interest is paid up to the day when guardianship is
accounted for, that is to say the day on which account is given and the
remaining sum is paid. And this Ulpian accepts in D.26.7.7.15. And
these things are in Papinian's opinion fixed (D.22.1.1.3) unless the
guardian has voluntarily entered an agreement with his ward who was
unwilling to institute proceedings by a judicium tutelae and offered
him the money, sealed the bag and deposited it. For in his opinion if
this happens the guardian does not pay interest from that point in
time, other than if he indeed offered the money but did not seal the
bag and deposit it, for in that case it is more likely, after the decree
of Emperor Severus of which I have spoken, that he remains liable for
interest; because in that decree it was provided that in guardianship
interest runs by the force of law without giving notice: but for the
course of interest which is still running to be halted, the money must
either physically be paid, or else offered, sealed and deposited.
Interest which previously ran does not stop running as a result of an
offer alone without subsequent sealing and depositing. This was the
Chapter XV
265
situation after the decree of Severus, but before that it was not so.
Our authority for this is Marcellus in D.26.7.28.1:
A guardian who withdrew from the management of his ward's affairs
after the latter reached puberty, need not pay interest from the time
when he offered the ward the [outstanding] money. Indeed, it even
seems to me more just that someone who through no fault of his own did
not, after having been sued, give account of his guardianship, should be
compelled to pay interest. Ulpian adds the note that it is not sufficient
to have made the offer if he did not also deposit the sealed money in a
place of safety.
Marcellus rightly and conformably with the usage of his time says that
if, after his guardianship came to an end, a guardian withdrew from
managing it, he was not liable for interest from the time that he
offered the money. This is of course so because at the time of
Marcellus318 a guardian owed interest only on the grounds of default:
without default he did not, by virtue of the law itself, owe interest,
and although running interest could not be cancelled by only offering
the money, it could nevertheless happen that interest which had not
yet run could not start running.
But what Marcellus very correctly wrote about the custom
followed in his time no longer applied when Ulpian was at the height
of his career, after Severus decided that interest was owed to a ward
not only on the grounds of default but by virtue of the law itself also
before default, and that is why Ulpian in his Notes on Marcellus
correctly observes that ‘it is not sufficient for the guardian to have
made the offer if he did not also deposit the sealed money in a place
of safety.’ This of course because in terms of the decree of Severus,
interest already running by force of law before default, did not appear
to be cancelled by the offering of money unless this was finally
followed by the sealing and depositing thereof.
Now if this is so, then the Most Honourable Antonius Faber had no
right to criticize (op.cit. error 5, decad 22 n.10) either Ulpian or
Tribonian, since he did not pay attention to such a remarkable
alteration of the law.
But no less unfortunate was that man's conjecture regarding the
following passage of Paul in D.3.3.73:
But this is an established fact, namely that before joinder of issue the
governor orders the money to be deposited in a consecrated shrine: for
this is also done in the case of money belonging to wards.
For Faber opines that what is here said about money belonging to
wards is a statement not of Paul but of Tribonian, although there is
318
i.e. before Ulpian and before the decree of Severus.
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Book 3
neither the negligence nor the hand of Tribonian in these words. But
here, too, it escaped Faber that the implementation of a law which
obtained at the time of Paul and Ulpian was altered by the decree of
Severus. I have now said enough about a bona fide action.
I come now to an action of strict law. Concerning this Scaevola
says (for I believe it is Scaevola, whatever the illustrious Jacobus
Cujacius may say) in D.45.1.122.5:
Seja, the heir of one guardian, entered into an extra-judicial agreement
by a pact alone with the heir of a ward; she paid the greater part of the
money and gave security for the remainder. The heir immediately said
he no longer upheld the agreement, and brought an actio tutelae before
the judge; when he lost, he appealed to a competent judge, and when
he lost again he appealed to the Emperor, and this appeal of his was
again declared unjust. The question was raised whether, inasmuch as it
was due to default on the part of the ward's heir that the money
included in the stipulation was not paid by the guardian's heir [i.e. Seja],
and inasmuch as the ward’s heir never claimed it, interest is now owed
to him by the guardian's heir? The reply was that if Seja had not stopped
offering the money in terms of the stipulation, interest was by law not
owed.
[Scaevola's] argument is the following:
Seja, heir of a guardian, is by an actio tutelae held liable to the
heir of a ward. Since a law-suit between the two of them was feared,
an extra-judicial agreement was reached by pact alone, that is to say
by a bare pact. The terms of that agreement were that the heir of the
ward would, upon accepting a certain sum of money, refrain from
suing. Seja paid the greater part of that sum, and gave security for
the remainder, that is to say she promised by way of a stipulation (for
so the verb cavere is to be understood, as Paul uses it in D.22.1.17 and
Sidonius Apollinaris319 in bk.4, epist.24, where he says ‘As is shown by
the promissory note, twelve per cent was promised to the
moneylender’). So Seja, having paid the major part of that sum,
promised the remainder in a stipulation, and also interest in case she
were to pay late — and although this is not directly said, it is clear
from the tenor of the passage.
Thereupon the ward's heir brought not an action based on the
stipulation but an actio tutelae: for the extra-judicial agreement was
made by a bare pact, and was followed neither by an Aquilian
stipulation320 nor by an acceptilatio (‘a formal verbal release from an
obligation’), but by a simple stipulation. In terms of the law itself
there accordingly was only an actio tutelae left, but since this could
319
320
A Christian author, ca. 430 - 487 AD.
this extension of acceptilatio with a stipulation was introduced by the jurist
Aquilius Gallus (praetor in 66 B.C.).
Chapter XV
267
be repelled with a pacti exceptio, and this was included in the actio
tutelae, that is to say in a bona fide action, if one looks at the
eventual effect it was exactly as if by virtue of the law itself there
was no action.
Therefore the ward's heir introduced an actio tutelae, and when
he lost his suit he appealed to a higher judge; when the previous
judgment was confirmed by this second judge, the heir finally
appealed to the Emperor. But here, too, the appeal was declared
unjust. Accordingly, since there was no further appeal, the question
was asked whether interest was owed by the guardian's heir. The
reason for the question was that Seja had in the stipulation promised
interest on the basis of default. But it appeared that default had been
commited not by her but by the ward's heir, since he had certainly
never claimed the money in terms of the stipulation, but by way of
the actio tutelae. So the reply is given that if Seja had not stopped
making the offer, interest was by law not owed.
From this Jacobus Cujacius comes to the conclusion that interest
owed in accordance with judicial discretion in a bona fide action, such
as an actio tutelae, is discontinued as a result of an offer to pay, even
if no sealing and depositing followed. This conclusion is wrong, for
that is the view of Cujacius, not of Scaevola. For the interest put
forward by the latter is not interest owed in accordance with judicial
discretion in an actio tutelae, but what is stated by him is that with
a bare pact an extra-judicial agreement on an actio tutelae was
made, and when the greater part of the money owed in terms of that
agreement had been paid, security had been given for the remainder,
that is to say, a promise was made by stipulation, with a penalty
added in case there was a suspension of payment (for that is what I
surmise, and the tenor of the passage allows it). Therefore, if interest
is discontinued by the bare making of an offer, interest owed in
accordance with judicial discretion in an actio tutelae or bona fide
action is not discontinued; and this was the opinion of Cujacius: but
this was interest owed in terms of a stipulation by the law of
obligation in an action of strict law. This interest of Scaevola also is
not presented as having already run due to default, and then to have
stopped running through the intervention of an offer. Not at all. But
what is stated is that when the ward's heir claimed money through an
actio tutelae in terms of which interest was not owed, Seja, the
guardian's heir, offered it before the judicial magistrate by reason of
the stipulation in terms of which it could be owed to him if Seja had
been in default. But here nothing like that happened. For firstly she
was not sued by an action in terms of the stipulation but by an actio
tutelae. Then when she was sued, albeit wrongly, she nevertheless
did not stop offering the money in terms of the stipulation. Therefore
Seja, the guardian's heir, is not presented as having been in default,
but the ward's heir is, and therefore the decision is that Seja is not
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liable for interest, as if the condition under which she promised
interest is not fulfilled. And that is what Scaevola means when he says
‘If Seja had not stopped offering the money in terms of the
stipulation.’ For this must be understood as if he is saying that
interest is not owed by Seja if when she was sued in an actio tutelae
she did not neglect offering the money in terms of what was
stipulated, because she is not presented as having been in default,
which was the basis on which she had promised interest — at least if
the ward's heir thereupon never claimed the money in terms of what
was stipulated, which was the action under which he had to claim; for
if he did claim and Seja was not prepared to pay, she still appears to
have stopped paying and thereby to have committed
default.(D.19.1.3.4).
These things therefore apply not in a present but a future
obligation of interest. A specific legal situation illustrating both of
these is especially dealt with by Antoninus [Pius] in C.4.32.9. The
situation dealt with by Antoninus is the following:
Titius receives money in loan and by way of a stipulation promises lower
interest, and if he does not pay on the day that payment is due he
promises higher interest. It is decreed that if the lower interest is
offered on the day of payment and the creditor declines it, the offer is
considered as payment, even if no sealing or depositing follows. For the
intention of this stipulation that higher interest is given if the lower
interest is not paid on the due date, is that higher interest would not be
owed if the lower interest is paid on the due date (D.35.1.40.2).321 That
condition is indeed held to be fulfilled if either the debtor pays the
lower interest, or else if it is not his fault that he does not pay, which is
what happens when he offers the lower interest and the creditor refuses
to accept it. For it is accepted law that whenever it happens that a
condition is not fulfilled due to the person in whose interest it is that it
not be fulfilled, it is considered to be exactly the same as if the
condition has been fulfilled.(D.50.17.161).
The consequence of this is that an offer, although not on its own
halting the course of the interest owed, will nonetheless prevent
future interest from beginning. But in C.4.32.9 Antoninus makes both
aspects clear when he says:
If it is not your fault that you did not pay the money for the lower
interest within the prescribed period, but the fault of the guardians of
the creditor's sons, who were unwilling to accept it, and if you can prove
this before the appointed judge, the higher interest will not be exacted
for that period during which it is clear that you were not at fault. But if
you also deposited the principal, you will not be liable for interest from
the time when it [i.e. the deposit] appears to have been made.
321
The relevance of this passage is unclear.
Chapter XV
269
Yet in the case of antichresis322 Antoninus gave the following rescript
in C.4.32.11/12:
If a creditor has received fruits from a farm which has been mortgaged
as a pledge, after not accepting money rightfully offered to him, it is
indisputable that the debt of the principal is discharged.
Hence highly learned interpreters think that in the case of antichresis
interest is suspended by the offer alone. To me this does not seem to
be correct, and, as I have pointed out above, for Antoninus the words
‘money rightly offered’ mean money not simply offered, but offered
as the law prescribes, that is to say an offer followed by a sealing and
depositing. For the law requires that, in order that the debt of the
principal be discharged, the money be offered thus, unless the offer
is made before a magistrate (in jure) or in an action, for then the offer
alone is sufficient. Indeed, Ulpian says in D.46.3.30:
If the debtor were to offer the money that is claimed and the creditor
were to refuse to accept it, the Praetor refuses actions to the latter.
And for that reason I rather think that C.4.32.11 should rather be read
as follows: post oblatam sibIn jure pecuniam,323 so that it would be
post oblatam jure pecuniam, for in jure means ‘before the
magistrate’ (praetor). So it seems to me: and it is the more likely,
since the manuscripts agree in reading in jure. Furthermore, there is
no probable reason why antichresis should be an exception to the
common law. For regarding the fact that they think that antichresis
does not stand within the limits of legitimate interest, and that it had
therefore to be discontinued more easily, I have shown above that this
is untrue.
Yet in the case of fruits the Emperor Constantine decreed (Cod.
Theod. de usuris 1) that if a creditor is given notice by a debtor and
is unwilling to accept payment of the principal and its interest, the
bare agreement or offer suspends the interest and extinguishes the
obligation of the principal. But this rule, accepted through a special
law (ius singulare),324 must not be drawn through to its logical
consequences, as the following words of Constantine point out:
Whosoever gives fruits — be they liquid or dry — in loan to those who
need them, should acquire a third part of the surplus as interest, that
means, for example, that if the sum of what was loaned is two measures
of corn the creditor acquires a third measure in addition. But if the
creditor is sued on the grounds of the profit of the interest and refuses
to recover the debt, he must be deprived not only of the interest but
322
323
324
See n.186.
Krueger has the word-order oblatam sibi pecuniam, which excludes the possibility
of Noodt's clever conjecture.
exceptional provision or ‘special law issued to the advantage of a certain class of
persons’ Berger.
270
Book 3
also of the amount of the debt. And this law applies only to fruits, for a
creditor is forbidden to receive more than twelve per cent p.a. for a
loan of money.
Chapter XVI
The effect of prescription or creditor’s neglect to claim on
the running of interest
[Summary]
What if an obligation is annulled by a plea of limitation? What if
interest is cancelled by a concluded agreement, whether it be
expressly stated or tacit?
*
*
*
What if an obligation is annulled not by force of law but by an
exception, for example a prescription of thirty years? What shall we
say: that the interest comes to an end? For there is not only one
stipulation for all the months or years for which interest has been
promised, but there are individual stipulations for separate months
and years, drafted under the condition ‘unless the original principal is
paid in individual months or years’ (D.12.1.40). For these an action in
terms of a stipulation arises, not immediately and not but once, but
in the individual months or years in which the debtor stops paying off
the principal. And therefore if the creditor, after letting the first
month or first year pass, has not claimed the interest [for that first
month or year] within thirty years, he cannot after that claim the
interest of that [first] year, for it is barred by the praescriptio triginta
annorum, but he is not prohibited from claiming the interest of the
years following, for that prescription does not affect the interest,
unless it has not been claimed within thirty years: and these years
apparently do not pass other than from the day an action in terms of
271
272
Book 3
a stipulation arises; and that action did not arise a single time, nor in
the first month [only], but in consecutive individual months.
And it is not a hindrance that, when the original obligation is
extinguished within a period of thirty years, there would hardly be a
reason why the same law should not apply to interest. For if interest
has been promised by stipulation, then even if the original obligation
is extinguished by the payment of the principal, the obligation of the
interest is nevertheless not likewise annulled, because the interest in
that instance is not held to be an increase of the original obligation,
but is considered to be owed in terms of a new cause, that is to say,
in terms of a new obligation (D.50.16.121; D.13.4.8). And in the same
way that a personal action is indeed understood to be extinguished by
the payment of the principal while the obligation of the interest is not
understood to be extinguished, so, after a personal action has been
extinguished through a praescriptio triginta annorum, so an action on
interest is not understood to have been extinguished without fail, for
the thirty years that have elapsed in respect of the principal have not
also elapsed in respect of the interest: and so it obtained at one time
in terms of C.7.39.7.7.
But Justinian thought otherwise in C.4.32.26, for he decided that
interest not only of the first month or year but also of all subsequent
months or years is extinguished, but only if a period of thirty years has
passed after the first month or year, and the principal plus interest
has not in the meantime been claimed. For since the original
obligation is extinguished at that time, it seems to come to an end as
a whole, also the part regarding usurae: not in the sense that the
prescription extinguished it for individual months, but in the sense
that there ceased to be an increase from the time when the original
obligation is understood to have fallen away.
Interest is therefore extinguished if the principal is extinguished.
But also when the principal remains? Assume that a pact was made
regarding the cancellation not of the principal but of interest: then
the principal is owed and can be claimed, but what shall we say about
interest? And if in terms of the stipulation it is owed, as far as the
subtlety of the law is concerned it can be claimed. But if it were to
be claimed, the action will be denied by an exceptio pacti: when this
is done it makes no difference whether no action is granted from the
beginning, or whether it is granted but then repelled by means of an
exception. And this is fixed if the pact is understood to have been
made verbally or in writing or through a messenger. But what if it is
not so expressed? Suppose a creditor has stipulated higher interest,
but for a certain number of years obtained lower interest, and then
claims higher rates in terms of the stipulation. Can he rightfully do so?
I think not, for although he did not openly consent to the lower
interest, nevertheless if he voluntarily accepted the lower rates over
Chapter XVI
273
a number of years when he was able to claim higher ones, he seems
to have consented to the lower interest. For there is also no need that
a concluded pact should in any case be seen to have been consented
to verbally or in writing or through a messenger; but if there was none
of these, it is sufficient that agreement be understood to have been
given by the circumstances and conduct (rebus et factis) (D.2.14.2).
And this is what Severus and Antoninus meant when they said
(C.4.32.5):
A pacti exceptio is effective against a creditor claiming higher interest in
terms of a stipulation, if it can be proved that for a certain number of
years thereafter he received lower interest.
And not only these men but also Scaevola says this (D.22.1.13):
A debtor who promised interest of six per cent p.a., over many years
paid lower interest: the heir of the creditor now claims six per cent.
Since it was not the fault of the debtor that he did not pay the lower
rate, I ask whether an exception of fraud or pact (exceptio doli vel
pacti) can be raised? I replied that if there was not default on the part of
the debtor in paying the interest out of habit for so long a time, on the
facts stated an exception could be raised.
Thus Scaevola: but a slight error must be corrected. He says ‘since it
was not the fault of the debtor quo minus minores solvat (‘that he did
not pay lower interest’)’. But it should be written ‘quo minus majores
solvat (‘that he did not pay higher interest’)’, as was observed by the
Most Honourable Publius Faber in his Semestr. bk.2, c.25.
So this is the position if a creditor has accepted lower interest,
although higher rates were owed to him. But what is the position if for
a long interval he has received not lower but no interest, and this in
order to be in good favour with the debtor? That is the question on
which Paul says in D.22.1.17.1 that ‘The late Emperor Pius replied as
follows: “You are claiming past interest with very little justice, since
the long interval during which you neglected to claim it is an
indication that you thought that it should rather not be claimed from
your debtor, clearly in order that you could be in good favour with
him.”’
From this we infer that a creditor cannot claim past interest but
he can claim future interest, the reason being that from his conduct
it is surmised that he neglected, that is to say remitted, the past
interest. Come now, from what conduct? From the fact that the
creditor did this in order to gain the favour of the debtor.
The Greek jurists note in Basilic. bk.23, tit.3.ad. par.11.16.lit.
D.p.426.tom.3:
274
Book 3
One who has over a long time not claimed interest does not rightly claim
it for the period which has passed because of generosity: that is to say,
on assumption he appears to have remitted the interest as an act of
generosity.
But the Greeks are in error if they state this without further
specification; for if the reason for the remission is not clear, but it is
only submitted that someone did not claim interest over a long
period, then it would be better that interest is not presumed to have
been remitted, because there is no reason for that assumption
(D.34.1.18.1).325 But if this is the type of conduct in which the
assumption of a donation can be made, it should be put in another
way, as, for example, ‘if the creditor brings an action after not having
claimed interest in order that he may gain the favour of the debtor.’
And this is the case in D.22.1.17 par.1, or whatever similar case there
may be, as in D.24.1.54. And this may apply not only in the case of
interest but also elsewhere (D.22.3.26).
325
Relevance not clear.
Chapter XVII
The ultra duplum termination of the running of interest
[Summary]
Interest is cancelled when it reaches twice the amount of the
principal. How ‘twice the amount’ is to be understood. Interest that
was not paid but had to be paid, favoured the inclusion of double the
amount. That law was easily circumvented by an interpretation of
both necessary and voluntary renewal of debt,326 even when a pledge
had been given to the creditor. This displeased Justinian, and he also
did not want it to make a difference whether interest was paid at
intervals or not. Does this also apply in the case of annual returns? In
Novellae 160 Justinian says it does not ; and under the guise of an
annual return in view of what had happened, he amended the
previous decree.
*
*
*
Finally, it is held that interest is cancelled as soon as it brings the limit
to twice the amount of the principal, so much so that Ulpian writes in
D.12.6.26.1 that it cannot further be taken into a stipulation or be
exacted. For just as it was in the interest of human society that
interest be paid for the use of principal, so too was it suitable that it
should at some stage be terminated. For a creditor could, to prevent
326
renovatio — with interest added to principal, amounting to compound interest.
275
276
Book 3
suffering loss thereby, consult his own interests by the timely
reclaiming of the principal. And if interest were to run eternally the
fear could exist that the debtor might (as that man in Livy 6.14[7]
shouted out had happened to him) ‘after paying many times the
amount of the principal, with the interest continuously burying the
principal, be overwhelmed by an interest-bearing loan.’
That is why the Ancients decided that interest can run until it
reaches twice the amount of the principal, and that it thereupon
stops, not as being unjust but as being unnecessary, and payment
made beyond that point is subtracted from the principal. And Plutarch
tells in his Vita Luculli327 that when Lucullus was governor of Asia, he
used this strategy to free the province from the interest under which
it was labouring. And Sirmondus in his commentary on Sidonius
Apollinaris Epist.bk.4.24 (on the authority of Diodorus Siculus)
observes that the same practice was an established one among the
Egyptians;328 and before him Cujacius also said so in
Observ.bk.5,c.38.
But the word duplum (‘twice the amount’), which the Most
Honourable Gulielmus329 Budaeus (Annotation. Reliq. ad Pand.p.22)
less correctly calculates, is in my opinion excellently interpreted by
Molinaeus (Tract.commerc. et usur. n. 47), who considers duplum to
be reached when one hundred [thousand sesterces] have been loaned
subject to interest and the interest rises to a sum of one hundred. To
illustrate this with an example: suppose one hundred has been
loaned, and interest of twelve per cent has been promised, but not
paid within the span of eight years and four months: then interest
reaches twice the amount. I don't want you to believe me: believe
Sidonius Apollinaris (Epist.bk.4.24) who says:
Security has been given to a moneylender of twelve per cent interest,
which when carried forward over a ten year period, takes the limit of
the principal up to twice the amount.
Sidonius with a round number calls the period bilustre, which is a span
of eight years and four months — the period in which the twelve per
cent [interest] becomes equal to the principal, or as Sidonius says
‘takes the limit of the principal up to twice the amount’ (as I pointed
out in Bk.2.c.2) Our scholars call the duplum an alterum tantum (‘a
second equal sum’), and in that they include the principal in D.22.1.9,
as I have explained in Bk.2c.13.330 Already Antoninus says in
C.4.32.10:
327
328
329
330
For the relevant quotation see p.109 above.
Diodorus of Sicily is known to have visited Egypt 60 - 56 BC.
This should read Guillelmus – Guillaume Budé in French.
See p.173 above.
Chapter XVII
277
Interest paid over periods of time does not avail the debtor with a view
to be reckoned into the duplum; for interest is not exacted beyond the
sum of the principal whenever at the time of payment the sum of the
interest exceeds that [inclusive] reckoning.
Antoninus means that interest goes beyond the duplum as soon as it
exceeds the sum of the principal, and he says it cannot be exacted
after that. Yet he does not want that to be the law if interest has been
paid over periods of time, but if the sum of the interest to be paid
exceeds the duplum at the time of payment. But not even thus was it
of much use, for how easily could it be circumvented by a scrupulous
moneylender through the interpretation of both a necessary and a
voluntary debt-renewal (renovatio)? And that this happened in
practice is understood from the decree of the Emperors Gratianus,
Valentinian and Theodosian in C.Th.de usuris rei iudicatae l.1, in
which they say:
But we now come to this conclusion, that the following distinction
should also be made, viz. that if a contract of debt derives from a
stipulation, and by chance over the course of years the interest has
completed the total sum of the original principal (of course in such a
way that the amount of the principal is made equal to the amount of the
[foenus]), then after sentence double interest of both debts does not
run, but double indeed on the principal while only simple on the
interest.
But it is not only the Emperors who take this view, but Ambrose too.
His words in de Tobia 13.45 are:
There are many living creatures which start to procreate quickly, but
also quickly stop procreating. Principal procreates quickly and never
stops: on the contrary, once it has begun growing the expansion is
extended ad infinitum. Then again, something that grows ends its
increase when it has reached its natural form and measure and size: but
the money of moneylenders in time always grows more, and extending
itself beyond the form of the maternal principal, it knows no limit. Also,
most living creatures lose the ability to procreate — their powers as it
were having been worn out — when once their own offspring begin to
procreate. But when once principal has been equalled by the growing
'twelve per cents' of the interest, it renews its high age and multiplies its
usual offspring by being augmented.
Thus Ambrose. Also Basilius, stating (Homil. in Psalm 14331 p.139
tom.I):
All seeds sprout at their given time, and all living creatures give birth to
their offspring at the predetermined time, but interest is born today and
today gives birth. Likewise living creatures which quickly beget their
young, also quickly cease begetting. But money, greedy to posess more,
331
Probably Psalm 15 v.5 (N.E.B.).
278
Book 3
draws out its fleet origin, and receives the unlimited increase of that
which goes so much further. Anything that grows, stops growing larger
when once it has reached the size just and suitable to itself: but the
silver coins of an avaricious man grow more all the time. When once
living creatures have handed over their turn to their offspring, they no
longer become pregnant: but money of those who loan at interest, and
money that has sprung up anew, immediately brings forth, and when old
it is renewed.
Beside renewal of debt there was also another tactic of circumventing
this law by means of a pledge given to a creditor as security, for then
he was free to exact interest higher than the duplum, because
although he did not have an action for more than the duplum, yet if
the pledge had been bound on behalf of the interest, he possessed the
right to retain it, since some ancient laws allowed this. But since this
seemed to Justinian too harsh, tending to make a mockery of the good
intentions of the law, he forbade interest proceeding beyond the
duplum, not only if no pledges but also if some pledges were given to
the creditor (C.4.32.27.1).
In Novellae121 and 138 Justinian decreed more fully that even
interest which was paid bit by bit and over intervals, be reckoned into
the duplum, even if in any case the whole amount was not paid
simultaneously. This was of course in order to prevent a debtor to be
better off through evasion of payment than he would have been had
he faithfully paid the interest at its due time. So much for interest.
But if some cases came nearer to an annual return than to
interest, Justinian did not in these instances want the inclusive
calculation of the duplum to be applied (Novellae 160). In the preface
to Nov.160 he presents the case of certain men who were in a position
of power in the city-state of the people of Aphrodisia332 and who had
invested an amount of gold which had been left as an inheritance to
the city, with the ruling that as long as that amount remained with
the one who had taken responsibility for it, that man would annually
pay out to the city as much as it was equitable for the city to receive.
You see the situation, and in it you see foenus or usura, if we closely
follow the meaning of the words. But Justinian said in chapter I that
it was a ‘return’ (reditus), in order that under the pretext and guise
of reditus he could oblige the city, in conflict with his own laws by
which he had forbidden that interest exceed the duplum. He
therefore amended the previous law in this instance, as a favour to
the citizens of Aphrodisia, although he did not want openly to be seen
to amend it.
THE END
332
A town in Caria, in the south-west of Asia Minor.
TRANSLATOR’S NOTE
The fact that Noodt was clearly trained in classical (i.e. Ciceronian)
Latin makes it easier for a modern-day Latinist to construe his syntax.
The main problem is therefore not the translation of the sentence as
a whole, but finding the best English rendering of his legal technical
terminology. In this regard I have relied heavily on A Berger
Encyclopedic Dictionary of Roman Law and VG Hiemstra and HL Gonin
Trilingual Legal Dictionary. I have also made extensive use of the
other dictionaries listed in the Bibliographical Abbreviations, in order
to find the right nuance of words in their context.
I have also enjoyed the advice of a few legal experts, and although
I have, in the face of their superior knowledge, stubbornly resisted
some of their suggestions, they have indeed saved me from quite a
few grievous errors — and for this I am most grateful to them. The
following idiosyncracies in my translation do not necessarily imply
their sanction:
Constitutio (principalis)
is variously rendered as ‘imperial enactment/decree/legislation’.
fideicommissum
is in some contexts rendered ‘bequest’ but
on the whole is left untranslated as a
technical term.
id quod interest
mostly ‘damages’, also ‘(general) loss’ and
‘total loss suffered’.
interpellare
means
‘to
press
for
payment’;
unfortunately the English term ‘to dun’ is
frowned upon by jurists as being obsolete.
I have generally translated it as ‘to give
notice’ or ‘to demand’.
mora
literally ‘delay (in payment)’, but the
accepted legal term is ‘default’ (see Noodt
BK III Chapter IX for a definition).
nudum pactum
although advised to use ‘mere agreement’,
I have preferred the literal (and not
uncommon) ‘bare agreement’, since
‘mere’ could also have a slightly pejorative
connotation.
officio judicis
‘in accordance with judicial discretion/
intervention’.
quantitas
(literally ‘a quantity’): ‘a sum of money’ or
‘fungibles’.
279
Vir Clarissimus
literally ‘The most illustrious gentleman’,
is an honorific title abbreviated as V.Cl. At
least during the Empire this title was
restricted to those of senatorial rank. But
since Noodt seems to use it indiscriminately (i.a. of Grotius), I have settled
for the title ‘the Most Honourable’.
The title D. (for Divus) before the name of an emperor means ‘divine’
or ‘deified’. Since Noodt twice points out that this simply means that
such an emperor was deceased, I initially translated it as ‘the late’,
but then changed to the more traditional ‘the deified’.
That (as far as could be established) the De Foenore et Usuris has
thus far not been translated into English may to some extent be due
to the abbreviation-riddled inscriptions from Gruter interspersed
throughout the three books. For the deciphering of these inscriptions
I was privileged to have the expert advice of Dr Paul Hasse of the
University of Pretoria, who guided me through a maze which in my
relative isolation I could not have negotiated on my own.
My most sincere appreciation, too, for the many improvements in
my manuscript suggested by the V.Cl. Justice Deon H van Zyl. Here
again, he cannot be called to account for errors which have slipped
through in spite of his diligent and time-consuming editing.
Finally a warm thanks to my daughters Annabie and Suzelle for the
typing and subsequent revision and editing of the manuscript, and to
Mrs Rolène Meyer of Unisa for regularly providing photocopies of
references I needed from the Samuel Pauw library.
DM Kriel
February 2008
280
BIBLIOGRAPHICAL ABBREVIATIONS
Berger
-
A Berger, Encyclopedic Dictionary of Roman
Law Philadelphia 1953
CIL
-
Corpus Inscriptionum Latinarum Berlin 1863 –
CJC
-
T Mommsen and P Krueger (volumes 1 & 2); R
Schoell and G Kroll (volume 3), Corpus Juris
Civilis Berlin 1928, 1929
Furneaux
-
H Furneaux The Annals of Tacitus (2 volumes)
Oxford 1896
GH
-
VG Hiemstra and HL Gonin Trilingual Legal
Dictionary 3rd ed. 1992
GL
-
HL Gonin and WJG Lubbe Lexicon Institutionum
Gai et Institutionum Justiniani Unisa 1987
Kleine Pauly
-
K Ziegler and W Sontheimer (et al) Der Kleine
Pauly - Lexicon der Antike (5 volumes) München
1975-1979
Krueger
-
See CJC above
Lausberg
-
H Lausberg Handbuch der literarischen
Rhetorik (2 volumes) München 1960
L&S
-
CT Lewis and C Short A Latin Dictionary Oxford
1879
Liddell and Scott -
Abridged version of Liddell and Scott’s Greek
English Dictionary Oxford 1871
Mignè
-
WH Migne d’ Arnis (published by M.L’Abbè
Mignè) Lexicon Manuale ad Scriptores Mediae
et Infimae Latinitatis Paris 1890
NEB
-
The New English Bible with the Apocrypha
Oxford 1970
Niermeyer
-
JF Niermeyer and C van de Kieft Mediae
Latinitatis Lexicon Minus Leiden 1984
OCD
-
S Hornblower and A Spawforth (edd.) The
Oxford Classical Dictionary 3rd edition 1996
OCT
-
Oxford Classical Texts
OED
-
ed. L Brown The New Shorter Oxford English
Dictionary (2 volumes) Oxford 1993
281
OLD
-
Oxford Latin Dictionary (8 fascicles) Oxford
1968 – 1982
ROL
-
EH Warmington Remains of Old Latin (4
volumes) The Loeb Classical Library 1967
Souter
-
A Souter A Glossary of Later Latin to 600 AD
Oxford 1947
Vulgate
-
Biblia Sacra Iuxta Vulgatam Versionem (2
volumes) Stuttgart 1969
Warmington
-
See ROL above
282
APPENDIX ON MONETARY AND FINANCIAL
TERMS
(The genitive and the gender of nouns is given in order to facilitate
the understanding of declined forms).
aes aeris n
-
copper, bronze, brass; a copper
coin; money.
annua quaterna
-
one fourth annually, i.e. 25 per
cent p.a.
as assis m
-
Roman coin, originally of one
pound of bronze (libralis). As a
monetary unit the as was divided
into 12 unciae (q.v.) in later times
to 4 and then to 2 unciae.
bes bessis m
-
two-thirds of a unit, specifically of
the as (i.e. 8 unciae). As interest:
2/3 % per month, 8% p.a.
bilustris
-
(adj.) — which lasts two lustra,
i.e. 2 x 5 years.
bini binae bina
-
2 to each.
binae centesimae
-
twice 12%, i.e. 24% p.a.
centesima – ae f –
-
lit the hundredth part of
something; hence as interest 1%
per
month
i.e.
12%
p.a.
(substantival use of the adj.
centesimus-a-um).
centesimae quaternae – lit.
-
four times centesima, i.e. 48% p.a.
centuplus-a-um
-
hundredfold.
deunx deuncis m.
-
eleven-twelfths (of an as etc.); as
interest 11% p.a.
duodeni –ae-a
-
twelve each; twelve.
dodrans dodrantis m
-
three-quarters of an as, but also of
the whole.
duplus-a-um
-
double; twice as much.
libra-ae f
-
the Roman pound of 12 ounces
(adj. libralis).
lustrum-i n
-
a period of 5 years, pl. lustra.
283
millesimus-a-um
-
a thousandth: millesima usura —
interest — at one thousandth per
month.
nummus-i-um
-
(in general) a piece of money;
coin: (specifically), a sesterce
(sestertius, q.v.).
Olympias – adis f
-
an olympiad, a four year period.
quadrans quadrantis m
-
a fourth part, a quarter;
(specifically) a coin worth one
quarter of an as. As interest,
usurae quadrantes is interest at a
quarter of a hundredth part per
month, i.e. 3% p.a.
quaternae centesimae
(also quaternae usurae)
-
4% interest p.m., therefore 48% p.a.
quinae centesimae
-
five times 12% interest, i.e. 60%
p.a. (also simply quinae usurae).
quincunx quincuncis m
-
five-twelfths of a whole (e.g. of an
as or a libra); specifically 5/12 of
usura centesima, i.e. 5/12 of a
hundredth part per month, i.e. 5%
p.a.
semis semissis m
-
a half; half of an as; as a rate of
interest ½% p.m, i.e. 6% p.a.
semissalis (adj.)
-
of or belonging to half an as.
semuncia-ae f
-
half an uncia, i.e. 1/24 of an as; as
an interest rate, 40% per year of
ten months.
sestertius-ii m
-
originally a silver, later a brass
coin. Initially equivalent to 2½
asses (from semis and tertius) —
the third half — as in ½, 1½, 2½),
later to 4 asses (when the as was
reduced in weight in 217 B.C. the
denarius was made equal to 16
asses,
while
the
sestertius
continued to be 1/4 of a denarius).
sextans –antis m
-
one-sixth of any unit; the sixth
part of a measure or weight,
especially one-sixth of an as. As
interest, 2% p.a.
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sextantarius-a-um
-
having the value of one sextans
i.e. worth only a sixth part of the
former as.
siliqua-ae f
-
a small silver coin valued at onetwentyfourth of a gold solidus.
solidus-i m (solidus nummus)
-
the solidus aureus was originally a
gold coin containing (from the
time of Constantine) 1/72 of a
Roman pound (libra) of gold.
ternae centesimae/usurae
-
three times 12%, i.e. 36% p.a.
triens trientis m
-
a third part (of anything); a third
of an as; (under later Emperors)
the third of a solidus aureus; as
interest, 1/3% p.m., i.e. 4% p.a.
triplex usura
-
ternae centesimae (q.v.).
uncia-ae f
-
the twelfth part (of anything); (as
a weight) the twelfth part of a
pound (libra), hence an ounce; as
interest 1/12% p.m., i.e. 1% p.a.
usurae legitmae
-
usurae centesimae (q.v.).
vicesima – ae f
-
a twentieth (of anything); a 5% tax
(especially on legacies).
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