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- Title
УГОВОР О ЗАЈМУ И ЗАШТИТА ДУЖНИКА ОД ЗЕЛЕНАШКИХ КАМАТА У СРЕДЊОВЕКОВНОМ СРПСКОМ ПРАВУ (с освртом на утицај византијског права)
- Authors
ШАРКИЋ, СРЂАН
- Abstract
Loan (mutuum, fenus, δάνειον, ºaemь) is delivery by one party to and receipt by another party of a sum of money upon agreement, to be repaid without (Roman mutuum) or with (Roman fenus) interest. Byzantine legal miscellanies (Ecloga X; Procheiron XVI; Epanagoge/Eisagoge XXVIII) always put the rules on loan in the same chapter with the provisions on pledge (pignus, ἐνέχυρον, zaloga), although modern legal scholarship treats pledge as part of property law and loan as a real contract and part of the law of obligations. That was the reason that Matthew Blastares included it in his Syntagma chapter Δ -2 under the title On Lenders and Loan and Pledges. In Roman Law, in the case of money, one could be required to pay interest if there had been a special stipulation to that effect. Under the Laws of the Twelve Tables, interest rates were capped at 12%. In 345 B. C. this was reduced to 6%. Under Justinian, interest was not allowed to be recovered to a greater amount than twice the principal. Compound interest, so-called anatocism or usurae usurarum was forbiden. The rates in Justinian's time were: a) maritime loans: 12%, p. a.; b) business loans: 8%, p. a.; c) ordinary, non business loans: 6%, p. a.; d) loans to farmers and persons of high rank: 4%, p. a. Under the influence of the provisions of the Scriptures, the canons of Christian Church councils anathematized taking interest as an act of usury. Following the Christian dogma, Byzantine legislation tried to forbid lending money at an interest rate, treating it as an act of usury. Already the Ecloga has no provisions on usury, with no word on either permission or prohibition, but the Procheiron explicitely forbids taking interest as something "without dignity of Christian State and forbidden by the Legislation of God". The same provision was repeated in the Epanagoge/Eisagoge. However, taking interest became a need of the economic life, so the Novella LXXXIII of Emperor Leo VI allowed lending money at an interest rate of 4%, and the Basilika repeated the provisions of Justinian's legislation. Byzantine legal collections of a later date contain the prohibition of interest from the Procheiron but at the same time include a provision from Emperor's Leo VI Novella, as well. This confusion can also be found in the Syntagma of Matthew Blastares. Chapter П (P) - 11 is titled On Greediness and Snatching Away, and it brings the VI rule of Gregory of Nyssa, which says that the Holy Apostle called greediness a kind of idolatry. The text does not explicitely mention usury, but it is clear that Saint Gregory alludes to it and forbids it to the clergy. More details on interest can be found in Chapter T - 7, entitled On the Prohibition of Taking Usury to all Clerics, and it reports the ecclesiastical rules and secular laws on usury. Serbian charters and the Law Code of Stefan Dušan do not mention the contract of loan. However, Emperor Dušan's chrysobull to the monastery of the Holy Archangels Michael and Gabriel (1348) forbids the monks from lending money at interest. The penalty would be expulsion. Beyond any doubt, this means that, in practical life, a loan of money existed and that the borrower had to pay an interest, but our source does not mention the rates. The same chrysobull uses the word kamatnik, which normally means usurer, but the context of the charter rules out such a meaning. The text says that "with the Emperor's grace and consent, Kesar (Caesar) Grgur gave to the church of the Holy Archangels the usurer Dabiživ, who has to give [to the church] 18 foxes yearly." It is really hard to explain why a pious donor would give to the church an usurer. Obviously, the word kamatnik in the Holy Archangels' chrysobull had a different meaning, which remained unclear.
- Publication
Zbornik Radova Vizantološkog Instituta, 2022, Issue 59, p147
- ISSN
0584-9888
- Publication type
Article
- DOI
10.2298/ZRVI2259147S