Understanding Long Lease, Security Rights, and Roman Law
A long lease involves establishing plantations. The lease and the surface are legal relationships, and their historical phases were considered property rights in the post-classical period rather than the classical period, for these reasons:
- The lease concerns the ground, while the surface concerns the building to be constructed.
- Both institutions involve a personal bond in the enjoyment between the person and their right.
From Roman times, the lease was the institution used by large landowners to obtain high returns on their land. Long leases and surface rights were important in medieval times as means by which landlords exploited their land. Both are positive law and were used until the early 20th century. In our civil law, there are two statutory institutions whose antecedent is the lease:
Emphyteusis
It is an alienable and transmissible property right (by acts inter vivos and mortis causa) that attributes to an individual the full enjoyment of a property with the obligation not to deteriorate it and to pay an annual rent.
Size
It is a real right, alienable and transmissible by inheritance, under which one knows how to enjoy and preserve for a long time (usually 90 years) the right to construct a building on land belonging to others.
Garment
A security interest under which the debtor surrenders possession of an item to the creditor to guarantee the obligation. The creditor has a duty to return the item if the obligation has been satisfied.
Mortgage
A security interest under which the debtor agrees or promises to give one thing to the creditor in the event of a breach of the obligation.
Security Right
In Rome, there were various ways in which a debtor guaranteed payment of a debt to a creditor. These forms had a double aspect:
- Personal: Next to the principal debtor is another person who promises to pay the debt if the debtor does not. This is the guarantor.
- Real: The debtor delivers an item to the creditor to secure payment of a debt.
The general characteristics of security rights are:
- The creditor is given a real right that becomes active only in cases of violation of the obligation.
- The existence of this real right depends on the existence of a primary obligation between the creditor and debtor.
- These property rights have an “erga omnes” characteristic because they are rights that are enforced against everyone, wherever they find the thing.
Rome met three successive modes, historically arranged, of collateral:
- Trust (Fiducia): The debtor surrenders the property to the creditor to secure the debt.
- Pledge (Pignus): The debtor delivers possession of an item to the creditor.
- Mortgage (Hypotheca): The debtor does not give the creditor either ownership or possession but promises to deliver it in the future only in case of breach of the obligation.
Fiducia
A security interest under which the debtor transferred one thing about your property to the creditor by mancipatio, with the obligation by the creditor to return it to the debtor by remancipatio once the debt has been repaid.