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6. Ius Honorarium, Equity and Real Security: Parallel Lines of Legal Development

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Chapter Summary

The law of pignus was largely developed through transactional practices which were recognised by the ius honorarium. One of the most significant examples of how the Roman legal system responded to demands from the economy, by the praetor adapting an existing formula, is the creation and gradual extension of the actio Serviana in response to new transactional practices. The debtor cannot dispose of assets subject to the fixed charge, but can dispose of assets subject to the 'floating charge'. In English law, there are several forms of real security which can be created over movable assets. Equity's recognition of non-possessory security over future and intangible assets paved the way for 'one of equity's most subtle creations' (Goode): the floating charge. An important principle developed by Equity in the 19th century is that provisions in mortgages that are 'clogs on the equity of redemption' will be void.

Keywords: debtor; English law; equity; Ius honorarium; Roman law



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