Protection against forced sale of a debtor's home in the Roman context

Abstract

In the last decade, the Constitutional Court has recognised that the sale in execution of a debtor's home potentially infringes the debtor's right to have access to adequate housing in terms of section 26 of the Constitution. The position is now that, in every case in which execution is sought against a debtor's home, judicial oversight is required to determine whether execution is justifiable, taking into account all the relevant circumstances in terms of section 36 of the Constitution. Last year, the European Union issued a directive to its member states requiring forbearance in matters concerning foreclosure against residential property. Against this contextual background, this article explores the ways in which execution against a debtor's home was dealt with according to Roman law, a common source of many contemporary legal systems. Initially, substantive and procedural rules relating to debt enforcement permitted execution only against a debtor's person. Subsequently, the law developed to provide for execution against a debtor's property. Collective debt enforcement (or insolvency) rules and procedures evolved, as did principles pertaining to mortgage and a creditor's rights of real security. Certain types of assets came to be regarded as exempt from execution in the individual and collective debt enforcement processes, but there was no formal exemption of the debtor's home. However, it is submitted, a study of the relevant legal principles and procedures as applied in their historical and socio-economic context - especially in light of the revered status of the familia, including the ancestors, the household gods and the requisite hereditary altar as well as the complex societal relationships - reveals the discernible, albeit indirect and subtle, consequence of providing protection for an impecunious debtor against the loss of his home at the instance of a creditor.