Naslov
PACTUM ANTICHRETICUM IN ROMAN AND MODERN CIVIL LAW

Autori
Matić, Ines

Vrsta, podvrsta i kategorija rada
Sažeci sa skupova, sažetak, ostalo

Skup
RIDOC - Rijeka Doctoral Conference

Mjesto i datum
Rijeka, Hrvatska, 02.12.2016

Vrsta sudjelovanja
Predavanje

Vrsta recenzije
Međunarodna recenzija

Ključne riječi
Roman law; pactum antichreticum; antichresis; Latin American law

Sažetak
The word antichresis originates from a combination of the Greek words anti (against) and chresis (use). Although this legal institution is known today by its name given by the Ancient Greeks, the practice of antichresis was common also in the cultures preceding the ancient Greece, such as the Sumerian, Akkadian and Mesopotamian. Antichresis was introduced into the Roman law towards the end of the classical period but the sources reveal that ancient Romans knew of not only the antichresis, but also the pactum antichreticum. Despite important differences between them, the pactum antichreticum and the antichresis are often used interchangeably, causing misunderstanding, confusion and inadequate decision-making. The sources indicate that the Romans considered the pactum antichreticum as a type of the pactum adiectum. Although antichresis pact could be added to any type of contract, it was most frequently added to the contract of pledge. Following the quote from Gaius, si pignore creditor utuatur, furti tenetur, the holder of the pledge may not use it. By adding the pactum antichreticum to the contract of pledge, an exception to the prohibition of ius fruendi was created because the pledgee would have obtained the right to possess and use the object of the contract in order to retain the fruits of the pledged thing in lieu of the interest. On the other hand, Marcian’s passage D.20, 1, 11, 1 teaches that ancient Romans knew of the legal institution of antichresis as well. They considered it an innominate contract do ut facias that incorporates the contrarium muutum of the things, i.e. the use of someone else’s capital in exchange for the use of someone else’s property. During the Middle Ages, the antichresis was abandoned under the Canon law and it was specifically forbidden by Pope Alexander III in 1163. These were times when receiving interest on loans was condemned, and the antichresis contract was considered an institution that disguised the practice of usury. In modern law, the antichresis contract reappears in the Napoleonic Code to legislate the practice of the customary law that was popular in southern France at the time the Code was being drafted in the early 1800s. Nowadays antichresis is present in most countries in which Napoleonic Code have had considerable influence, such as France, Spain, Italy and in the majority of the Latin American countries. A comparative analysis of pactum antichreticum and antichresis in the mentioned legal orders highlights the main issues regarding the two legal institutions. Considering that a difference between these two legal notions existed already in Roman law, this study is aimed at analysing in-depth the functions and legal nature of the Roman concepts of pactum antichreticum and antichresis, and understanding the genesis of the corresponding legal notions in the modern legislations based on Roman law tradition. This is considered highly valuable for effective differentiation between these two legal institutions in the modern civil law.

Izvorni jezik
Engleski

Znanstvena područja
Pravo

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