The Twelve Tables
Table #3Debt
Having covered rules of procedure in the first two Tables, we here first encounter substance.
3:01. When a debt has been acknowledged, or when a judgement of debt has been pronounced, 30 days is the proper period [for paying the debt].
3:02. After that period, the debtor may be arrested by force (manus iniecto). Let him be brought into court.
The determination here is not that a debt exists, but that its payment is due. These related provisions cover the cases of compliance and noncompliance with the order to pay. Notice that here the presence of the debtor is compelled by the state, which having previously rendered judgement, is now a party to the case.3:03. If he does not satisfy the judgement, and if no one in court offers himself as guarantor (vindicit), [the creditor] may take him with him [as a slave, to work off the debt]. He may bind him either in stocks or in chains; he may secure him with a weight of not more than 15 pounds, or less if he wishes.
Service is the default method of payment for debts freely contracted. If a guarantor should appear, the process of working off the debt is suspended. Following Warmington, the "more" and "less" have probably been reversed in the original (presumably in scribal anticipation of 3:04), and are here restored. Here and in 3:04, the creditor may choose to be more generous than the law stipulates, but not more cruel.
3:04. [The debtor] may live by himself if he wishes. If he does not so desire, [his creditor] shall give him one pound of wheat per day, or more if he wishes.
The one doing service may provide his own food, but if he cannot, his creditor must give him the minimum ration for one doing hard labor. This service arrangement presumably continued until the debt was paid off. The following pair of provisions conflicts with this presumption:3:05. If they do not come to another agreement, debtors are held in bonds for sixty days. During that time they are to be brought before court in the forum on three successive market days, and the amount for which they are liable shall be publicly announced. On the third market-day, they either suffer capital punishment or are delivered up for sale abroad, beyond the Tiber.
This is both confused and incomplete. Incomplete, because it does not mention, but seems to imply, that someone on the three market-days can purchase the debtor from custody by paying the amount due the creditor, the debtor then working off the transferred debt as above. Confused, because markets were held every eight days, and if the prescribed conclusion were reached on the third market day, the period of confinement would range from 17 days to a maximum of 25 days, within the 30-day period that would have been symmetrical with the 30 days of 3:01. In any case, it could never reach or closely approach the 60 days here prescribed. It is also discordant, because it represents a procedure alternate to that in 3:03-04. See further below.
3:06. On the third market-day, [any multiple] creditors shall cut [the debtor] into pieces. If they cut more or less than their due, it shall be with impunity.
This passage is cited by Gellius, as an example of the extreme cruelty of ancient times ("and listen, I will quote the actual words of the Law, lest you think that perhaps I shrink from their odium"). Commentators have sought to reinterpret it as not a literal division of the debtor's body, but only of his property, among multiple creditors. That explanation is weakened by the provision for the death penalty in 3:05. Taking Table 3 as a whole, it seems to prescribe successively more desperate remedies for debt: (1) repayment, (2) arrest and appeal to a possible guarantor, (3) working off the debt to the creditor, either at his own expense or fed by the creditor, (4) public auction or sale abroad, or (5) death, any multiple creditors being entitled to divide the corpse more or less in proportion to their claims. The problem remains that options #4-5 parallel, and conflict with, options #2-3. It is probably best to accept Gellius's savage reading, adding only that this provision may have been meant to be replaced by the more civilized #2-3, and was retained either by institutional inertia or as an alternative should the creditor somehow refuse the service equivalent.3:07. Against an outsider [hostis; later Latin peregrinus], a title of ownership shall hold in perpetuity.
The meaning of this provision is disputed. One interpretation is that the foreigner can never acquire property simply by long possession of it (usucapio); the native's title cannot be lost in this way (though it may be so lost to another native). On no very easy interpretation can 3:07 be made thematically consonant with the debt provisions above. The term "hostis" has been encountered in 2:02, but not in a way that suggests relocating this passage there.
Form. Formally speaking, we seem to have here three pairs of provisions (of which the last pair are probably an archaic holdover), plus an anomalous unpaired final provision about ownership. For other laws on ownership, with which this one may properly belong, see Table 6.
22 Feb 2006 / Contact The Project / Exit to Twelve Tables Page
