Reconsidering the authority to sell as the augmentation or restriction of creditor’s rights in fiducia cum creditore


The issue of creditor’s rights in fiducia cum creditore after the debtor’s default is one of the central questions concerning the history and development of this form of real security in Roman law. Opposing views and the arguments put forward in the literature during the last decade are keeping the discussion alive. Although it may seem that the idea of the right to final acquisition of unburdened ownership by creditor on default (Verfall theory) is taking sway, there are still opinions in favor of the position acknowledging creditor only the right to hold the object until the debt was eventually paid (Bewahrung theory). In this paper, the problem is reconsidered taking into account the analysis of documents from Roman business practice, as well as the juristic opinions.
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