Personal Securities

(1) Adpromissio

There is an alternative means of giving security. This does not involve the creation of a real right in the debtor's property. However, it is included here because it has a similar function to real security.

(a) Sponsio and Fidepromissio

The earliest form of cautionary obligation in Roman law was sponsio. This was constituted by the form of contract called stipulatio. Later, in Chapter 18, we will see this contract in some detail. In simple terms, though, it involved here the cautioner undertaking the obligation using formal words. Sponsio was only available to Roman citizens, but later another form of caution called fidepromis­sio was developed, which was open to non-citizens. Sponsio and fidepromissio were very similar, and were subject to various limitations. They could only be used to guarantee obligations also created by stipulatio. Following a lex Furia of around 200 BC, both lapsed two years after the debt fell due, did not bind the cautioner's heirs and, where there was more than one cautioner, each was only liable for a proportionate share of the debt.

(b) Fideiussio

A new form, fideiussio, developed from the late Republic to avoid these limita­tions, and became the most common method of creating a cautionary obliga­tion. In fideiussio, there was no limitation period, the cautioner's heirs were bound and, if there was more than one cautioner, each could be pursued for the whole debt. Indeed, it was not necessary to pursue the principal debtor at all. Instead, the creditor could proceed immediately against the cautioner. This gave rise to a practical difficulty. We have seen^{[1678] [1679] that, once an action had reached the stage of litis contestatio7 the action was said to be ‘consumed'. This meant that no further action could be brought on the same facts. This meant that the creditor had to make a once and for all decision on which person to sue, the principal debtor or the cautioner. If the creditor sued one and failed for whatever reason to recover what was owed, it would not then be possible to sue the other. There was another difficulty as well. In practice, the creditor would be expected to seek performance first from the principal debtor. To choose to sue the cautioner would be seen as casting doubt on the principal debtor's creditworthiness. If this doubt was not well founded, the creditor would be open to potential delictual liability for the insult.[1680] Various reforms were made to fideiussio over time. The emperor Hadrian intro­duced the ‘benefit of division' (beneficium divisionis).[1681] This applied when there was more than one cautioner, and limited each cautioner's liability to a proportion­ate share (excluding any cautioners who were insolvent when the debt fell due). Justinian disapplied the rule that bringing an action against one of cautioner and principal debtor barred further action against the other.[1682] He also introduced the ‘benefit of discussion' (beneficium excussionis vel ordinis), by which the creditor could be compelled to proceed first against the principal debtor.[1683]}

Fideiussio has been very influential in later law.^[1684] Scotland is no exception to this.^[1685] For example, the benefit of division and the benefit of discussion have been accepted in Scots law, albeit the latter has been abolished for money claims,^[1686] and in his discussion of them Stair draws on Roman sources.^[1687]

(2) Adstipulatio

A somewhat different arrangement, though still involving the introduction of a third party, was adstipulatio.