Book III
Concerning debts and creditors
De debitorum et creditorum
Septimius Severus and Antoninus Caracalla, 22 October 194:
A debtor pledges as security property without the owner’s consent in vain.
Septimius Severus and Antoninus Caracalla, 30 June 196:
As a creditor, who claims money, must show that it was given, so, on the other hand, a person who affirms that it has been repaid must furnish proof thereof.
Septimius Severus and Antoninus Caracalla, 1 September 197:
If you can show that no money was delivered on a loan agreed to be made, and therefore property was pledged as security in vain, you can sue to recover the pledge.
Septimius Severus and Antoninus Caracalla, 22 May 197:
The property of a guardian who does not hold any of his ward’s property cannot be seized for a debt of the latter.
Septimius Severus and Antoninus Caracalla, 1 September 197:
If one alleges that money agreed to be loaned was not delivered to them, and that a due bill given was accordingly void, and they can prove that a pledge was given, they have an action to recover the loan pledged.
Septimius Severus and Antoninus Caracalla, 27 September 200:
Although interest cannot be claimed on a loan of money without the binding force of a stipulation, still whatever interest has been paid pursuant to a pact, cannot be reclaimed as money not owing, nor is it to be credited on the principal.
Septimius Severus and Antoninus Caracalla, 30 July 203:
There is no doubt that money paid by mistake, but not pursuant to an order of court, may be recovered by condiction. If one can prove, therefore, that they paid their creditor more than was due, they can recover it. But ones asks in vain that interest on the money be paid; for in such an action only the amount paid but not owing may be recovered.
Septimius Severus and Antoninus Caracalla, 1 May 205:
Though creditors who, upon non-payment of the money, take possession of property pledged as security according to agreement are not considered as using force, still they should acquire possession pursuant to the authority of the magistrate.
Septimius Severus and Antoninus Caracalla, 7 July 205:
If against a creditor claiming greater interest on a stipulation it is shown that they subsequently received a lesser rate for a certain number of years, a defence may be made that there was an implied pact for the lesser rate to the paid.
Septimius Severus and Antoninus Caracalla, 14 October 205:
If you have proven to the magistrate that the property involved in the litigation is yours, you may know that they could not be pledged as security for a debt to a creditor by another, unless you knew of that being done, and remained silent in fraud of an innocent creditor.
Antoninus Caracalla, 11 February 212:
The creditor should, if they can, prove by their documents the amount which they claim, and that they have a stipulation for the payment of interest. The fact that interest was at one time paid by consent does not create an obligation.
Antoninus Caracalla, 4 June 212:
It is in the power of they that owe on several contracts to designate, at the time of making payment, on which contract they make it. If the debtor does not do so, the choice is that of the person who receives the money. If neither of them express their wish, the amount paid shall be first applied on interest, and the remainder on the principal.
Antoninus Caracalla, Rome, 25 July 213:
If one has paid their creditor part of the money owed, but it was agreed between them that a part of the debt should not be claimed for any reason, then they are released from the obligation to pay that part, for the perpetual defence that a pact was made defeats the claim for the remainder, and even allows it to be recovered if paid by mistake.
Antoninus Caracalla, 17 September 215:
If the obligation to pay a debt is transferred to another by novation of the debt, lawfully made, there is no doubt that the sureties of the first contract are released, if they did not enter into any obligation in connection with the second contract.
Antoninus Caracalla, 29 June 215:
If a debtor who owned property sold it before they owed anything, they who the debtor sold it to shall not be disturbed.
Alexander Severus, 9 February 223:
A delegation of a debt cannot be effectively made unless the new debtor enters into an agreement with the creditor, agreeing to pay.
Alexander Severus, 15 October 223:
Although the produce of land pledged as security for a debt, even though that is not specifically stated is considered as impliedly included in the pledge, nevertheless none of the jurists have held that lands which are purchased with the money derived from such produce are also included.
Alexander Severus, 3 November 223:
If property which is pledged as security for a debt is sold by the creditor, they have a right to sue the debtor for the amount remaining due.
Alexander Severus, 1 June 225:
When a creditor publicly offers property for sale which has been pledged to them as security for a loan, they should, if they do so in good faith, notify their debtor, and, if possible, in the presence of witnesses. So if you can prove that any fraud was perpetuated in connection with the sale of the pledged property, go before the magistrate, so that you may bring an action which lies on that account.
Alexander Severus, 17 September 229:
If it appears that money is mutually owing from one to the other, the amounts should, of course, be set-off against each other by operation of law, as from that time that they were respectively owing, to the extent that they offset each other; and interest is due only for the excess, provided that a claim therefore still subsists.
Gordian III, 20 August 238:
As long as the whole amount due is not paid to a creditor, even though the greater amount thereof is paid, they do not lose the right to sell the property pledged to them as security for the debt.
Gordian III, 5 October 238:
A parent cannot be sued for the money which their child borrowed.
Gordian III, 26 October 238:
You have no right to sue the creditor of another, because offering them the debt due them from such other you want them to transfer the obligation to you, since you do not suggest that you purchased the obligation from them, although when payment is made by a third party in the name of the debtors, the obligation is usually extinguished.
Gordian III, 3 April 239:
If, before the property pledged as security for the debt was sold, you offered the money to the creditor, and they did not accept it, but a testimonial with witnesses has been made thereof, and the matter remains in that condition now, a sale of the pledge is not valid.
Gordian III, 21 April 239:
Since you say that the property which you brought from a debtor and which had been pledged to another as security for a loan was bought with the latter’s knowledge who released their pledge, then since their pledge became void through their consent, unless a new agreement was entered into which again created a pledge, the property cannot be claimed as though the pledge still existed.
Gordian III, 1 April 240:
Since you allege that a sale of the property pledged as security for a debt was made by the creditor contrary to good faith, the conditions customary in selling pledges not having been observed, go before the magistrate and bring the proper action, not only against the creditor, but also against the purchaser in possession, if you can show that the latter participated with the former in the fraud, so that upon cancellation of the sale in bad faith, and accounting of the income and of the damage inflicted may be had.
Gordian III, 29 June 240:
As it is unjust that debtors should refuse payment of their debts when documents are destroyed by fire, so no immediate credence should be given those who allege such misfortune. Their creditors must, therefore, know that when documents do not exist, they must show by other means of proof that their petition is true.
Gordian III, 8 September 241:
If the debt which you mention was released by an invalid pact, you are not forbidden to still demand it, and you may, in the usual manner, claim the property pledged as security for it.
Philip, 15 May 245:
Rescripts have often been issued that statements of accounts of the deceased, found among their goods, cannot alone suffice for proof of anything owing them. The law is the same, even when the deceased has stated in their last will that certain money or certain things are owed to them.
Gallienus, 260:
The debts of a decedent should be paid by the heirs in proportion to their inheritance.
Gallienus, 4 September 262:
It would be a pernicious precedent that a document should be credited whereby a person makes another their debtor by their own notation. Hence, none should be able to prove a debt by such notations.
Diocletian and Maximian, Tiberias, 31 May 286:
It would be intolerable that tenants who pay their rent according to agreement could be sued for a personal debt of the lessor.
Diocletian and Maximian, 25 February 287:
A creditor cannot be prevented, when there are two or more joint debtors of the same debt, to demand its payment from whichever of them they wish. And, if you prove accordingly that upon demand you satisfied the whole debt, the magistrate will not hesitate to lend you their assistance against the party who received the loan jointly with you.
Diocletian and Maximian, 20 May 287:
If the debtors refuse to pay, you should sell the property pledged as security, in good faith and in the usual manner; for in that way it will be apparent whether or not the sale price suffices to pay the debt. If anything remains due, you are not forbidden to pursue the remaining amount.
Diocletian and Maximian, 13 January 290:
Debtors should first be given notice to pay. If they fail to do so when called upon, the magistrate will not hesitate to lend you the aid of their authority in claiming the pledges of security which are specially provided for in a document.
Diocletian and Maximian, 14 February 290:
It is unlawful to demand interest on interest.
Diocletian and Maximian, 22 June 290:
If you refrained from accepting your parent’s inheritance and none of their property was signed over to you as a gift in fraud of creditors, the magistrate will not permit you to be sued by their private creditors.
Diocletian and Maximian, Heraclia, 30 April 293:
The law is certain and clear that where the same property is pledged as security for a debt to two different creditors, the creditor who received the earlier pledge when they made a loan has the better right to claim the pledged property.
Diocletian and Maximian, Heraclia, 1 May 293:
When the debtor has sold property pledged as security, the law is undoubted that the creditors have the option to sue the debtor, or the persons who possess the pledged property in an action in rem.
Diocletian and Maximian, 3 May 293:
It is most certain that a debtor cannot make the condition of their creditor worse by making a sale or gift of property pledged as security. Hence if you are confident that you can prove that the property was pledged to you, you may lay claim to it.
Diocletian and Maximian, 18 May 293:
Although somebody bought property with the money which they received from you as a loan, such property did not become a pledge by the fact that the money was loaned, unless they pledged it specially or generally. Nothing, of course, prevents you from claiming the debt in an action brought before the magistrate.
Diocletian and Maximian, 10 October 293:
If, upon going before the magistrate, you have proven that you have satisfied the creditor against whom you direct your petition, by paying the amount owing, or by turning property over to them, in payment, or by the sale of property for a price balancing the amount due, or if a part only is due and you offered that to them, the magistrate will see that property pledged as security by agreement is restored to you, since it is clear also that if a debt is paid to a creditor or non-payment thereof is due to their fault, they may, by action, be compelled to return what they had received as security.
Diocletian and Maximian, 1 December 293:
If debtors alienate property pledged as security for a loan without the consent of their creditors, the pledge is not released.
Diocletian and Maximian, 16 December 293:
I. If it appears that the property of your deceased debtor is heirless and is not claimed by the Treasury, you rightfully ask the magistrate to put you in possession of what is owed to you.
II. Just as a creditor in possession of property pledged as security for an unpaid debt is not responsible for any acts of God, so they are responsible for fraud, or neglect, and lack of custody.
Diocletian and Maximian, 15 January 294:
A creditor cannot be compelled to demand payment. Therefore if your creditors refuse to accept payment of your debt, sue them in front of the magistrate for the return of the property pledged for security.
Diocletian and Maximian, Sirmium, 4 February 294:
The fact that the proof of an obligation, owing by many in several proportions, is contained in one document, does not hinder its collection. And if those to whom you loaned money promised by stipulation to deliver you wine, regret of the transaction does not render the contract invalid.
Diocletian and Maximian, Sirmium, 12 February 294:
A fire does not release a debtor from their debt.
Diocletian and Maximian, 13 February 294:
Debtors who deny their debts should not be terrified by armed force. If a claimant fails to prove their claim or is defeated by a defence, they must be absolved; otherwise they must be condemned and compelled to pay by methods provided by law.
Diocletian and Maximian, Sirmium, 18 February 294:
That a son cannot be sued in a personal action because of an unperformed duty or unpaid debt of his surviving father is plain.
Diocletian and Maximian, 28 February 294:
If less than the whole of a debt was paid you, and you did not give a release to the debtor, you are not forbidden to sue for the amount not shown to have been paid.
Diocletian and Maximian, Sirmium, 1 May 294:
The claim of creditors can neither be destroyed nor changed by pact among their debtors.
Diocletian and Maximian, 25 July 294:
One cannot recover from the owner of the land amounts which they loaned to the tenants of the owner on their own account.
Diocletian and Maximian, Sirmium, 25 September 294:
After one who gave a mandate for the making of a loan to another personally pays the lender, they may rightly demand payment thereof, together with interest, from the person who received the loan, or from their heirs.
Diocletian and Maximian, Viminacium, 29 September 294:
If oil or any fruits are given as a loan, the reason of the uncertainty of price is persuasion that addition as interest of the same property should be allowed.
Diocletian and Maximian, Varianum, 13 October 294:
The debt of the estate of a decedent is, by operation of law, divided among the heirs in proportion to the amount of the estate received by each, and a pact among the heirs of the debtor cannot place the obligation due to a creditor upon one heir only. Hence, one may sue their co-heir for the production of due bills of the estate, owned in common, or if an agreement made in dividing the property has not been carried out, they can sue them for their damages.
Diocletian and Maximian, 20 October 294:
The laws do not permit that free persons should become slaves of their creditors on account of debts.
Diocletian and Maximian, 21 October 294:
No debtor may, without their consent, be delegated to the creditor of a creditor.
Diocletian and Maximian, 29 October 294:
A third person, liberating property pledged as security by payment, may sue to recover what they have paid but cannot by such payment acquire ownership of the pledged property.
Diocletian and Maximian, Byzantium, 10 November 294:
If property pledged as security is sold by the creditor and the sale brought more than the amount due, the debtor may bring an action to recover the surplus.
Diocletian and Maximian, Nicomedia, 27 November 294:
A demand that creditors should not sue them that received the loan, but the heirs of the person to whom in turn they loaned the money, is plainly contrary to the rule of law.
Diocletian and Maximian, Nicomedia, 26 December 294:
A creditor cannot be compelled to refrain from claiming property pledged to them as security.
Valens, Gratian and Valentinian II, Hierapolis, 6 July 377:
Among the papers of one whose property was confiscated a note book is said to have been found containing the names of debtors and persons who made contracts with him. Since the debts, however, mentioned in the note book, were proved neither by witnesses, nor by acknowledgments in writing, we have deemed it unjust that any person should make another their debtor by a simple notation of their own. We, therefore, by this order, forbid that to be the occasion for a vexatious suit; the note book shall be rejected as worthless and no person whose name is mentioned therein shall be called on for payment. We order that this shall be followed in other similar cases.
Honorius and Theodosius II, Ravenna, 11 July 422:
I. If obligations of any kind have been transferred to influential persons, the creditors shall be punished by loss of their debt, for it seems to be plain avarice of creditors, when they purchase others as collectors of their rights of action.
II. The property of one person cannot be taken for the debts, public or private, of another.
Honorius and Theodosius II, Ravenna, 15 July 422:
It is taught aloud by the law and the jurists that the possessions of a person cannot be pledged as security for a debt without the consent of the owner.
Justinian I, Constantinople, 1 December 526:
Since it is unjust and contrary to the spirit of our times that the remains of a deceased person should be insulted by those who hinder their sepulchre by demanding the payment of a debt, alleging that the deceased is their debtor, and lest such insult might be offered hereafter by compelling those whose duty it is to look after the funeral of the deceased to lose their rights, any act done, between the deceased being prepared for burial and being laid to rest, either collecting what is claimed to be due or taking a due-bill or a surety or pledges, shall be entirely void, and the pledges given shall be restored, the money paid returned, the sureties released, and, in general, everything, without any change whatever, shall be returned to its former situation and the principal transaction shall be dealt with anew.
Justinian I, Chalcedon, 20 September 529:
Many, after receiving a receipt for rent or interest, deny, in case a doubt arises concerning them at any time, that they have the receipt, thus making the right of a plaintiff litigant dubious. Desirous to uproot this evil, we order that if in the foregoing or other similar private transactions, the person giving the receipt wants a copy, with the signature of the receiver attached, or a counter-receipt, he shall be entitled thereto, and the receiver of the receipt must give a counter-receipt. Provided, however, if the giver of the receipt fails or neglects to take such counter-receipt, he shall not be prejudiced thereby, since equity forbids that an enactment for the benefit of parties should become a detriment to them.
Justinian I, Chalcedon, 1 October 529:
That no interest on interest might be demanded of debtors had indeed been provided in former laws, but not fully guarded. For if it were allowed to reduce interest to principal and then to exact a stipulation for interest for the whole amount, what difference would it make to debtors, from whom interest would in fact be demanded on interest? A law to that effect would be simply verbiage, and not strike at the root. We, therefore, by this plainest of laws, direct, that no one shall be permitted to reduce interest accrued in past or future time to principal, and then again exact a stipulation (for the interest on the whole), and if this is done, interest shall indeed always remain interest, and shall not be increased by itself drawing interest, and only the former principal can be increased by interest.
Justinian I, Constantinople, 18 October 532:
We hasten to eradicate cheating and decree that if anyone, through fraud and trickery has demanded (and received) a due bill for a greater amount than is due him, and has been called into court, then, if they repent of their cheating before the case begins and acknowledges the true amount, they shall not be mulcted in damages; but if they persists in their contentions and are convicted of claiming an excessive amount, they shall not only lose such excess, but the whole debt as well. Compromises, however, shall even in such case be valid.