Istanbul Law Review
Nexum Transaction in Roman LawMehmet Mert Özyıldırım
From ancient sources, the nexum transaction was commonly used in the archaic period of Roman law. This nexum transaction has been used extensively for centuries; however, we do not have any primary sources on what nexum was and how it was made. There was also no consensus on this issue among Roman writers who lived centuries after the transaction had taken place. The only certain thing that we know about nexum is that people who entered debt because of this transaction were subjected to pain and abuse. These exploits that continued for many years caused a great plebeian revolt in the 4th century BC and nexum lost all its importance in practice after the law called Lex Poetelia Papiria that was enacted as a result of this debt bondage. Disagreements and contradictions among historical sources have caused various theories to be put forward on nexum in the modern Roman law doctrine. Two important theories were propounded by Huschke and Mitteis about nexum transactions. Therefore, the primary purpose of this study is to reach a possible synthesis by focusing on the significant aspects of the different views propounded about nexum, which has been discussed in Roman law doctrine for nearly 150 years. Thus, both the historical sources and the principal contemporary views were examined in detail in this study.
Roma Hukukunda Nexum İşlemiMehmet Mert Özyıldırım
Antik kaynaklardan, Roma Hukuku’nun Eski Hukuk Dönemi’nde nexum adı verilen bir işlemin çok yaygın bir şekilde kullanıldığı anlaşılmaktadır. Fakat bu isimdeki bir işlemin her ne kadar uzun yüzyıllar boyunca yoğun olarak kullanıldığı bilinse de elimizde nexum’un tam olarak ne olduğu ve nasıl yapıldığı ile ilgili birincil bir kaynak bulunmamaktadır. İşlemin ortadan kaybolmasından yüzyıllar sonra yaşamış Romalı yazarlar arasında da bu konuda bir görüş birliği yoktur. Bu noktada nexum hakkında bilebildiğimiz tek kesin husus bu işlem ile borç altına girmiş kişilerin birçok acı ve istismarlara maruz kalmış olduğudur. Nitekim uzun yıllar boyunca devam eden istismarlar, M.Ö. 4. yüzyılda büyük bir pleb isyanının çıkmasına sebep olmuş ve bu isyan neticesinde çıkarılan Lex Poetelia Papiria ile nexum, uygulamadaki bütün önemini kaybetmiştir. Tarihi kaynaklar arasında bulunan görüş farklılıkları ve çelişkiler, modern Roma Hukuku doktrininde de nexum hakkında çeşitli teorilerin ileri sürülmesine neden olmuştur. Doktrinde, nexum işlemine yönelik Huschke ve Mitteis tarafından ortaya atılmış iki farklı önemli teori bulunmaktadır. Bu kapsamda çalışmamızın en temel amacı, yaklaşık 150 yıl boyunca Roma Hukuku doktrininde uzun tartışmaların konusu olan nexum işlemine yönelik ileri sürülen bu görüşlerin öne çıkan yönlerine odaklanarak olası bir senteze ulaşmaktır. Bu amaçla; çalışmada hem tarihi kaynaklar hem de doktrindeki temel modern görüşler detaylı bir şekilde incelenmiştir.
There is no consensus in historical sources on what the nexum exactly was and the specific procedure that was used to make the transaction valid. The main reason for the lack of information is that we do not have any primary sources from the times when nexum was commonly used. Furthermore, it is seen that the meaning of the word has changed over time After the enactment of Lex Poetelia Papiria, nexum had gained a different meaning from its former usage, and the word was used to describe the legal bond, obligatio in a general sense. This change of meaning also confused ancient Roman writers who lived centuries after the technical meaning of nexum had faded. In consequence, a diversity of opinions emerged concerning what the nexum transaction was originally in the archaic Roman law. Although several theories have been put forward by Romanists in the modern Roman law doctrine, two principal theories have come into prominence over the last few decades.
Huschke, a German Romanist, propound the first view of nexum in 1846. He claimed in his book that nexum was a formal loan contract made with copper and scale (per aes et libram). To make this per aes et libram transaction valid, the involvement of libripens and five witnesses was necessary. The nexum gained public nature by weighing metals with libripens, which is usually done before five witnesses, representing five classes of Roman society. If the debtor fails to repay, the creditor declares him “damnas” by saying some mystical words (dare damnas esto) before the witnesses. Hence, because of the public and mystical nature of the transaction, it allowed the creditor to seize the debtor by manus iniectio without judgment. However, one of Huschke’s assertions that the nexum debtors could also be subjected to the punishments stated in the XII Tables such as death, being sold as a slave, or being cut into pieces, has been criticized by many writers.
In 1901, another German Romanist, Mitteis rejected Huschke’s theory by claiming that the association of the right of seizure with the mystical words “dare damnas esto” is a misconception. Mitteis propounded that there were two nexum transactions and none of them allowed the creditor to apply execution directly. The first nexum transaction was a normal loan contract that can be enforceable by legis actio sacramento in personam. However, the second nexum was a self mancipatio and was made by the insolvent debtors voluntarily to avoid harsh penalties provided by the XII Tables. This theory of Mitteis has also been criticized on the basis that the first nexum loan enforceable by legis actio and the hypothetical second nexum with self mancipatio that led to debt bondage is highly objectionable. Nevertheless, there are some logical aspects to the theory. Especially the argument that nexum was preferred by the debtors voluntarily to avoid the harsh penalties provided in the XII Tables appears plausible to explain why this old transaction was commonly used.
Consequently, to reach a logical conclusion, the provision related to the execution of debts in XII Tables is of great importance. We believe that the expression of “acknowledged money debts” (aeris confessi) in XII Tables should be considered to include nexum debtors who were declared as damnas by the creditor. So, the debtor could not claim that the nexum transaction had not been conducted. Therefore, we can conclude that; creditors who sought to seize their nexum debtors had to bring them to the court and follow manus iniectio procedure just because nexum loans were acknowledged as money debts. However, for the ongoing provisions of the relevant text (starting with ni iudicatum facit) the law only refers to judgment debtors who were convicted by iudex. Thus, it should be admitted that after the expression of ni iudicatum facit, the provisions about nexum ended, and punishments stated in the ongoing provisions of XII Tables could not be applicable for nexus.
As a result, we came to the same conclusion as Huschke that nexum is a formal type of loan contract made with copper and scale, and if the debtor could not repay the loan on the agreed date, the creditor could apply manus iniectio directly. The public nature of nexum created this right of execution against the debtor without judgment. It is possible to confirm this view by interpreting some texts in the Institutiones of Gaius. But after manus iniectio, the debtor had to submit to personal restraint and was obliged to work for the creditor and not be killed, sold as a slave, or cut into pieces as Mitteis propounded. Nevertheless, what prevented borrowers from being subjected to these penalties was not self mancipatio transactions, it was because nexum loans were considered acknowledged money debts, and people who made nexum were exempted from the penalties prescribed in the XII Tables.