Dimensione economica e azione della giurisprudenza: il caso delle garanzie reali

The present essay tries to answer the following question: could the considerable economic importance of real securities in the Roman world affect their legal regulation? The answer comes in three steps. The first takes into account economic factors and knowledge, and analyse in which circumstances contemporaries preferred the use of fiducia cum creditore and pignus (datum and conventum). The second step explains why in certain markets, such as those of loans and leases, real securities were mostly favoured. Finally, the essay demonstrates that the legal rules that determined the success of these instruments were not created to achieve specific economic goals (such as the expansion of money circulation, the selection of investments or the profitability of assets). They were rather a consequence of both the freedom that Roman law let individuals to self-regulate their interests and of the mediation by which the jurists reconciled the various interests at stake.