Introduction

The history of security interests in movables on the European continent begins with the ‘reception’ of Roman law in the guise of Justinian's Corpus Iuris Civilis in the Middle Ages. As with any code, Justinian's codification forms the conclusion of an era in the development of the law. Legal concepts not incorporated into the code, like the ancient fiducia cum creditore, were consequently concealed from the legal consciousness for ages, until some of them were drawn from the collective subconscious of the civil law in the course of the nineteenth century. An assessment of the Roman origins of the continental European system of security interests in movables is important, particularly since many aspects of the modern system have been consciously developed as a reaction to the Roman system. The current statutory provisions on the creation of a valid pledge, for example, are only comprehensible if it is appreciated that they were formulated as a response to the deviating provisions of Roman law. It will, therefore, be necessary to glimpse briefly the Roman system of security interests in movables as contained in Justinian's codification.

Justinian Roman law

After the demise of the concept of fiducia, Roman law recognised only two proprietary security interests, pignus and hypotheca.