Document Type

Article

Publication Title

Tulane Law Review

Publication Date

1961

Abstract

The essential idea of real security is that the debtor transfer to the creditor a possessory interest in a specific item or aggregate of property, chattel or realty, to serve as security for the loan. There are four possible generic types: (1) the debtor vests both ownership and possession of the property in the creditor, subject to a personal obligation to reconvey on repayment; (2) the debtor vests ownership in the creditor, but retains possession of the property by leave of the creditor; (3) the debtor retains ownership of the property, but grants possession irrevocably to the creditor until repayment of the debt; and (4) the debtor retains both ownership and possession of the property, but transfers to the creditor a possessory interest in the property. These four types represent stages of increasingly sophisticated abstraction in the relationship of legal interests denominated as real security. Roman law knew all four of these modes under the names of muncipatio cum fiducia or in iure cessia cum fiducia (commonly known and hereafter designated simply as fiduci), pignus, and hypotheca. The exact character of the real security encompassed by each of these terms is difficult to ascertain and lately has oc- casioned some dispute among Roman law scholars. As a preliminary working definition it may be stated that fiducia. indicated the transfer of ownership to the creditor, who generally but not always retained possession as well; pignus indicated the retention of ownership by the debtor, but the transfer of possession to the creditor; and hypotheca indicated the retention of both ownership and possession by the debtor, but with the creation of a possessory interest in the creditor. It is the purpose of this article to present an appraisal of the historical evolution of the Roman real securities and a neutral delineation of the substantive law underlying each possible mode - ownership and possession in the creditor, ownership in the creditor with possession in the debtor, possession in the creditor but ownership in the debtor, and ownership and possession in the debtor with a possessory interest in the creditor entitling him to eventual legal possession.

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European Law Commons

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