FEATURES OF THE PLEDGE OF FUTURE THINGS IN ROMAN LAW

Abstract

The article, based on the analysis of sources, examines the features of the pledge of future things in Roman law. The issues of the range of objects that can be the subject of such a pledge are clarified, the moment of the occurrence of a pledge on future things, the legal nature of the agreement on the establishment of a pledge on future things, the protection of the parties in the event of a violation of the terms of the pledge by the debtor or creditor, etc.

Roman law is known for the pledge of such things that do not exist in nature at the time of the conclusion of the pledge agreement. Such things included the future harvest, the future offspring of animals, the future child of a slave. The possibility of establishing a pledge on such things is due to the appearance in Roman law of a non-possessory pledge, that is, one that did not provide for the transfer of ownership of the pledged object to the creditor (pignus conventum, or “hypotheca”).

Cases of establishing a pledge on future fruits together with the fruit-bearing thing and separately are distinguished  in the sources , that is, only on future fruits. In classical Roman law, a separate agreement had to be concluded to extend the pledge to the fruits. In the case of establishing a general mortgage (on all the debtor's property), a separate clause on the extension of the pledge to future fruits from the property was not required.

The obligatory pledge relationship arose from the moment of concluding the pledge agreement, when the fruits were not yet independent objects, that is, they were not separated from the main thing (fructus pendentes). The real right of pledge arose from the moment of separation of the fruits from the main thing (fructus separati). Therefore, an agreement on the pledge of future things in Roman law can be considered to be a transaction with a suspensive condition, which gave rise to the pledge as a right to the thing from the moment the fruits appeared in the debtor's property, that is, with effect on the future (ex tunc).

The experience of Roman law regarding the features of the pledge of future things can and should be taken into account when building the modern concept of the pledge of future assets in the civil law of Ukraine.