NEXUM is defined by Manilius to be "omne quod per libram et aes geritur, in quo sint Mancipia." Mucius Scaevola has a different definition: "quae per aes et libram fiant ut obligentur, praeter quae mancipio dentur." Varro (de Ling. Lat. VII.105, ed. Müller) who has preserved both these definitions, prefers the latter, as being consistent with the etymology of the word: "quod obligatur per libram, neque suum sit, inde Nexum dictum." As an illustration he adds: "Liber qui suas operas in servitutem pro pecunia quadam debebat, dum solveret, nexus vocatur, ut ab aere obaeratus." The difference in these definitions arises solely from the different aspect under which the Nexum is viewed. Every Nexum was in the form of a sale, and consequently, viewed as to its formal part, Nexum comprehended Mancipium. The Testamenti factio was also included under Nexum. Viewed as to its object and legal effect, Nexum was either the transfer of the ownership of a thing, or the transfer of a thing to a creditor as a security: p796 accordingly in one sense Nexum included Mancipium, as explained in Mancipium; in another sense, Mancipium and Nexum are opposed in the same way in which Sale and Mortgage or Pledge are opposed. The formal part of both transactions consisted in a transfer per aes et libram. This explanation is consistent with the definition of the jurists, and the uses of these two words.
The person who became Nexus by the effect of a Nexum or Nexus (for this form of the word also is used) was said Nexum inire (Liv. VII.19). The phrases Nexi datio, Nexi liberatio respectively express the contracting and the release from the obligation.
The Roman law as to the payment of the borrowed money (pecunia certa credita; see Lex Gall. Cisalp. 21, 22) was very strict. A curious passage of okus (XX.1) gives us the ancient mode of legal procedure in the case of debt, as fixed by the Twelve Tables. If the debtor admitted the debt, or had been condemned in the amount of the debt by a judex, he had thirty days allowed him for payment. At the expiration of this time, he was liable to the Manus Injectio [Manus Injectio], and ultimately to be assigned over to the creditor (addictus) by the sentence of the praetor. The creditor was required to keep him for sixty days in chains, during which time he publicly exposed the debtor on three nundinae, and proclaimed the amount of his debt. If no person released the prisoner by paying the debt, the creditor might sell him as a slave or put him to death. If there were several creditors, the letter of the law allowed them to cut the debtor in pieces, and to take their share of his body in proportion to their debt. Gellius says that there was no instance of a creditor ever having adopted this extreme mode of satisfying his debt. But the creditor might treat the debtor, who was addictus, as a slave, and compel him to work out his debt; and the treatment was often very severe.
In this passage Gellius does not speak of Nexi, but only of Addicti; which is sometimes alleged as evidence of the identity of nexus and addictus, but it proves no such identity. If a Nexus is what he is here supposed to be, the Law of the Twelve Tables could not apply; for when a man had once become Nexus with respect to one creditor, he could not become Nexus to another; and if he became Nexus to several at once, in this case the creditors must abide by their contract in taking a joint security. This Law of the Twelve Tables only applied to the case of a debtor being assigned over by a judicial sentence to several debtors, and it provided for the settlement of their conflicting claims. The distinction between a nexum and a res judicata is obvious enough, though some writers have missed it.
The precise condition of a Nexus has however been a subject of much discussion among scholars, and it is not easy to reconcile all the passages in which the term occurs so as to deduce from them a consistent view of the matter. Sometimes indeed Nexus appears to be used in the same sense as Addictus, which cannot cause any difficulty if we consider that the effect of being Nexus and Addictus was the same, as will presently be made probable.
As a Nexum was effected per aes et libram, it was in the form of a sale, and of course there was an object of sale; and this object of sale might be a thing or a person. We need not assume that "per aes et libram se obligare," and for a man to make himself Nexus are the same. In the case of Nexum aes, it is more consistent to consider the aes as the object of the obligatio per aes et libram, and in the case when a man made himself Nexus to consider the man as the object. It does not follow then that an obligatio per aes et libram always made a man Nexus; but there is no difficulty in assuming that a man only became Nexus with reference to an obligatio per aes et libram, so that a man could contract an obligatio per aes et libram, and at the same time could make himself Nexus. A free man could not properly be the object of a sale, but it requires only a slight acquaintance with Roman law of perceive that this difficulty could be got over by a fiction. As in the case of Manumission Per Vindictam there was a fiction that the slave was free; so there might here be a fiction that the freeman was a slave. And if this is not admitted as a probable solution, it cannot be denied that there is as much difficulty in understanding the co-emtio of a female, who was sui juris, which as a legal fact is quite certain, as the formal sale of a freeman with his consent. The notion of a freeman giving himself into the power of another, so far from being foreign to the notions of Roman law, as some writers have asserted, is perfectly consistent with them, as we see in the instance of adrogation. The Nexum then being in the form of a sale, the Nexus was in a servile condition as a necessary consequence of the Nexum, and the opinion that there was must be an addictio to give effect to the Nexum, is inconsistent with the notion of the Nexum. According to this view, a Nexus, as soon as the contract of Nexum was made, was in the condition of an Addictus, and both were treated as slaves. But it has been urged, that "one cannot discover any reason for this self-pledging (nexum), since every insolvent, even when there was no nexum, must become his creditor's slave (addictus), and how can we understand that the abolition of the nexum was such an advantage gained by the Plebeians (Liv. VIII.28), if the addictio still remained, which might be obtained when there was no nexum; and it cannot be denied that it did remain?" The advantage consists precisely in the difference between a contract which at once gives a man a power over his debtor without any application to a court of justice. The effect of the abolition of the Nexum, in this its special sense, while the Addictio still existed, may be illustrated by the supposed case of a landlord's remedy for the recovery of his rent by distress being abolished, while his other remedies under the contract for letting and hiring remained.
It is remarked by Goettling (Geschichte der Röm. Staatsverfassung) that "the comparison of the Adrogatio and the Adoptio gives the clearest proof of the correctness of Savigny's view, who rejects the notion of a freeman pledging himself. In the case of the Adrogatio of a Roman, who is sui juris, there was no mancipatio which such person could effect as to himself: but in the case of adoption, a mancipatio occurs, and it is effected by the living father and the son together. In the case of coemtio it certainly appears, as if the woman of herself effected a self-mancipation; she, however, p797 is not herself auctor, but her guardian is auctor." There may be some weight in this observation, the point of which appears to be this: there was mancipatio in the case of adoption, where the adopted person was in the power of another, but no mancipatio in the case of Adrogation, where the adopted person was not in the power of another. The tacit conclusion then seems to be, that if in one case there was no mancipatio and yet a person was brought into the power of another with his own consent, there could be no mancipatio when a person consented to put himself into a servile relation to another; for it is here assumed that a nexum was voluntary. But this is not a legitimate conclusion. It is easy to see that mancipatio in the case of adoption, where the son was in the power of the father, was a sufficient form, considering that the person adopted was only a filius familias; and that adrogation, which was of a person who was sui juris, was a very different matter, and required other forms to be observed, because the person adrogated was not a filiusfamilias [Adoption]. A nexum effected no change of familia like an adoption or an adrogation, and while its object was different from that of both of these ceremonies, it is quite consistent for its form to have been the same as the form of the one, and different from the form of the other.
The mode in which Goettling (p123) explains this matter of the nexum is as follows: "A free citizen can come into a mancipii causa when he cannot pay a loan (aes confessum) out of his own means. What in such case he has to give security for, that to which he has bound himself, is called nexum (namely aes); hence the phrases nexi datio, nexi liberatio. The person who does such an act is called nexum (from nexus nexûs) iniens, nexum faciens, but after he has received the loan in the above solemn manner, he is nexu obligatus, nexu vinctus as soon as he has failed to fulfil his obligation, and in consequence of such failure has been addicted (addictus), and given in mancipium by the magistrate, he is called nexus (adjective), qui se nexum dedit" — a more confused account of the thing, or one more remote from legal precision, cannot be imagined. The passage of Livy (II.27) is not easy to explain (compare Liv. II.23).
The Lex Poetelia (B.C. 326) alleviated the condition of the nexi. So far as we can understand its provisions, it set all the nexi free or made them soluti (Liv. VIII.28, nexi soluti), and it enacted that for the future there should be no nexum (cautumque in posterum ne necterentur), and that no debtor should for the future be put in chains. Addictio however still continued in force after the Lex Poetelia, as we see in several instances (Liv. XXIII.14; Sall. Cat. 33; Cic. pro Flacco, 20). It appears from the Lex Galliae Cisalpinae (c.21, 22), that in the case of other actions there was only a Possessio Bonorum, but in the case of pecunia certa credita there was personal execution. The enactment of the Lex Julia which introduced the Bonorum Cessio, and gradual changes in society, must have diminished the frequency of the Addictio [Bonorum Cessio]. In the system of Justinian, Nexum did not exist, for the use of aes et libra in legal transactions had ceased.
Neither the Addictus nor the Nexus was a slave, and his ingenuitas was only in suspense. As to the Nexum, it must have been necessary that the effect of the legal act by which the ingenuus was made a nexus should be done away with by another legal act; and this seems to be the Nexi liberatio which was done per aes et libram. It also appears from a passage in Livy (VI.14), that a certain person, who was judicatus pecuniae, and is not described as nexus, was released from his obligation per aes et libram. In the time of Gaius an imaginary form of payment per aes et libram was retained in cases where the obligation was contracted either per aes et libram or was due ex judicati causa (Gaius, III.173‑175). There seems indeed no reason why this ceremony should have been used in the case of an addictus who wished to be restored to his former state, for the Addictio was by implication only to have an effect till the debt was paid. It might be contended that such was the effect of the Nexum also, but we must distinguish between the effect of a sentence of the Praetor and a solemn act like that of the Nexum, which was in form a transfer of ownership. The addictus was protected against injuria from his master (Gaius, I.141), and it is said that he retained his name and tribe; but it is somewhat difficult to understand how he retained his tribe, since he had sustained Infamia. Upon the discharge of his obligations the addictus, it seems, returned to his former status.
It was Niebuhr's opinion that the Nexum, when it became a form of giving security, had not its complete effect until the debtor was unable to pay and was brought into the condition of a debtor-slave by the addictio. An answer to this has been already given. If it required an addictio to make a person nexus, what was the use of a Nexum when a man might become addictus, even when there was no Nexum? The only intelligible solution of all these difficulties is that a Nexum, in which there was a mancipatio personae, had an immediate effect.
It seems to be a legal consequence of a Nexum and an Addictio that the children, if they were in the power of the parent, must follow his condition, as in the case of adrogation.
In the case mentioned in Livy (VIII.28), where the son is said to have been nexus for his father's debt (cum se nexum dedisset), it may be that the father bound his son only, which he could certainly do just in the same way as he could mancipate him. If the son was not in his father's power, he could still bind himself on behalf of his father. The expression in Livy does not enable us to determine which of the two possible cases was the real case, but it seems probable that the son was in the power of the father. Unterholzner observes (Lehre des Röm. Rechts von den Schuldverhältnissen, I. p31, note g): "The legal condition of the nexi is one of the most obscure points in the old Roman law. It is here assumed that a man by the personae mancipatio came into this condition. Persons who were in the Patria potestas could for the noxae causa, which was long maintained in practice, and also on account of the debts of him who had the Potestas, consequently in a sense after the nature of a pawn, and by virtue of the so‑called paternal power of sale, be mancipated. Further, we must assume that persons who were sui juris could also mancipate themselves by way of pawn, though no evidence of this has been preserved. This is made the less incredible, since we cannot doubt, that women who were sui juris could make a coemtio, p798 and consequently could mancipate themselves either matrimonii causa or fiduciae causa, whereby however they did not, like the nexi, come into a condition similar to that of slaves, but only into a state of dependence similar to that of a child. The nexi were, as a matter of course, in mancipio, and consequently alieni juris, but for that very reason greatly different from the addicti. However, they could, like them, be put in chains, until the power of putting debtors in chains was altogether abolished."
The meaning of the provision in the Twelve Tables, cited by Gellius, as to cutting the debtor in pieces has been a subject of much discussion. Taylor in his essay (Comment. ad L. Decemviralem de Inope Debitore in partis dissecando) attempts to prove that Gellius misunderstood the old law, and that the words of the Twelve Tables "partis secanto: si plus minusve secuerint se fraude esto," mean that the several creditors are intitled to have the "partis," that is, the "operae" of the addictus divided or distributed among them; and he goes on to explain the rest of the law in these terms: "Communis sit servus eorum, qui quidem adfuerint et sine fraude esto, si ceteri toties procitati suas quoque partes in Debitore non vindicaverint." But the arguments of Taylor are by no means satisfactory. The conjecture that the "partis" are the shares of the creditors arising from the sale of the debtor, is also unsupported by any proof. This monstrous enactment, if we take it literally, shocks all our notions of humanity, but it has been well observed that it is by no means inconsistent with the spirit of the old Roman law; and the fact of an actual division of a debtor's body not being on record, is no proof against, and hardly furnishes a presumption against the existence of such a law. The Romans had no prisons for debtors. The creditor was the debtor's jailer, and we know that in the oldest time he was often a cruel keeper. When there were several creditors who claimed the body of a debtor, he might be kept by any one for the benefit of himself and the rest till the sixty days were over; but after that time, if the creditors could not agree among themselves, there was no possible mode of settling their conflicting claims than that which the law of the Decemviri gave them, and which they might adopt if they chose. Such a law could never be carried into effect in any country, as the legislators must have well known, and thus while its terms fully satisfied the claims of the creditors, in practice it may have turned out really favourable to the debtor. (See the remarks of Gellius on this part of the law, XX.1). But the solution of the difficulty is quite a different matter from the fact of its existence, which is in no way to be questioned because we cannot explain it.
The various authorities on the subject of the Nexum and Addictio are referred to by Rein, Das Röm. Privatrecht, p313, &c. The writer of this article has not had the advantage of seeing the essay of Savigny, Ueber das altrömische Schuldrecht, Berlin, 1834. The whole subject is still encumbered with difficulty, as will appear from a reference to the various writers on this subject. the note of Walter (Geschichte des Röm. Rechts, p642, n6) appears to contain the true statement as to the difference between the effect of a Nexum and a Res Judicata; but he rejects the notion of a man selling or pledging himself.
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