Summary in English

This study concerns the right of antichresis: secured creditor’s right to use a security object and reap its fruits. I followed the development of this right and its applications through time, from Roman law up to modern Dutch law. Furthermore, I studied the right of antichresis in South African law and German law. Each chapter answered the questions how a right of antichresis could be created, what rights and duties followed from a right of antichresis and what functions a right of antichresis had. The answers to these questions showed which economic needs a right of antichresis could fulfil. Below I will summarise my thesis. After this, I will make some concluding remarks based on the result of this study.

In Roman law the pledgee had a right of antichresis when he had a fruit bearing pledge object in his possession. The pledgee had a right and duty to use the pledge object and reap its fruits.1 He did not commit theft (furtum) if he used a pledge object with economic value in use without prior agreement. 2 In addition to this silent right of antichresis, parties could add a clause on antichresis (pactum antichreticum) in the security agreement. In this clause parties could give further substance to the right of antichresis. Furthermore, this clause could confer a right of antichresis in the event this right did not arise by operation of law.3 In classical Roman law a right of antichresis could also arise as a result of a fiduciary transfer (fiducia cum creditore). This right of antichresis entered into force in the same way as the antichretic right of pledge.4 Lastly, a right of antichresis could be an independent real right. This independent right of antichresis could be created per agreement. It could also arise pursuant to the law (for example: missio Antoniniana), or if a creditor exercised a Gordian right of retention.5

The right of antichresis took effect when the creditor had possession over the security object. This could happen immediately with the creation of a security right, or later, in which case a non-possessory security right such as hypotheca was created. The right of antichresis then took effect if the debtor was in default and the secured creditor took possession of the security object (default-antichresis).6 The right of antichresis was a real right. If it was combined with a right of pledge, the creditor could uphold the right of antichresis against anyone with the action of the pledgee: the actio Serviana. Furthermore, the pledgee was protected by the exception that he had a right of pledge over the object he used. The independent right of antichresis also was a real right. The antichresis creditor was protected as if he were a pledgee. He could recover the antichresis object with an actio Serviana in factum.7

The secured creditor exercised the right of antichresis on fruit bear­ing objects, such as immovable property, slaves and limited real rights thereon. The pledgee could rent out a pledged house, or inhabit it himself. He could lease out a piece of farmland, or tile the land himself and harvest the crops.8 The pledgee could set pledged slaves to work for him. If need be he could teach pledged slaves a profession.9 If the pledgee had incurred costs by improving the pledged object, he could recover them from the debtor with the actio pigneraticia contraria.10 It is likely that the pledgee could use his right of antichresis to collect rent which was due for a pledged home. This even applied if the pledgee was not a party to the rental agreement. In this case a combination of antichresis with hypotheca seemed self-evident. Perhaps under such circumstances possession was not required to exercise the right of antichresis.11 Abuse of rights was a limit to the exercise of antichresis. Damaging pledged property led to the pledgee being liable with an actio pigneraticia directa. Severe abuse of rights could even cause the right of pledge to extinguish, or lead to liability for theft with the actio furti. Emperor Justinian made exploitive abuse by antichresis creditors a criminal offence.12

A right of antichresis could have one of two functions: amortization or interest. In an amortization antichresis the fruits were applied in reduction of the secured debt (interest and principal sum). The value of the fruits thus benefited the pledgor. Amortization antichresis was also favourable to the creditor, since the fruits satisfied his claim.13 A right of antichresis had an amortization function, unless parties agreed otherwise.14 In an amortization antichresis the creditor had a duty to use the security object. He had to realise an optimal yield of fruits. If he did not meet this obligation, the value of the fruits that the pledgee should have collected was brought in reduction of the secured debt.15

If a right of antichresis had an interest function, the fruits and the value in use did not go in reduction of the secured debt. The debtor did not have to pay interest over the secured debt. Instead, the pledgee could get interest compensation by using the security object and reaping its fruits. In interest antichresis, the secured creditor did not have a duty to use the security object. Interest antichresis was subject to the Roman laws of usury. If it was apparent that the yearly value in use was higher than amount the creditor was allowed to collect as interest, the creditor had to bring the surplus in reduction of the secured debt. This did not apply if the value in use could not be valued in money, or if the yearly yield of fruits fluctuated. If one of these exceptions applied, the creditor could thus legally receive a higher amount of interest compensation than the maximum interest rate.16

The right of antichresis provided for a need, because it prevented that a security object became economically sterile while it was in the creditor’s possession. Interest antichresis could provide an opportunity for a creditor to lend money against a higher interest compensation than allowed under usury laws. For the debtor interest antichresis could also be worthwhile if he wanted to borrow money without having to pay interest.17 Furthermore, amortization antichresis met the need of additional security during economic crises. In hard economic times the value of a security object could depreciate. For the creditor this caused the risk that the value of the security object would no longer suffice to recover the secured debt. The right of antichresis allowed the creditor to use the security object and reap its fruits. He could then bring the fruits in reduction of the secured debt. Thus, the creditor could satisfy his claim entirely or partly out of the fruits of the security object. In addition to execution sale the right of antichresis provided the creditor with an extra way to satisfy his claim.18 The independent right of antichresis met the need for security over assets which did have economic value in use, but were not suitable for execution sale.19 Therefore, the legal concept of antichresis (combined with pledge and independent) was a useful security right if execution sale was undesirable or impossible.

The right of antichresis in ius commune had a lot in common with the Roman antichresis. I will only point out the differences and some special details. The purpose of the pledgee’s right of use was to reap the fruits of the security object. The creditor was entitled to perform acts of exploitation which resulted in fruits.20 Furthermore he was entitled to perform necessary and useful maintenance. The costs of maintenance had to be paid out of the fruits. Only if the fruits were not sufficient to cover the costs, the secured creditor could bring an action pigneraticia contraria against the pledgor.21

The ius commune scholars I studied did not devote any attention to the independent right of antichresis. However, there were legal concepts that conferred a right of use to a creditor for the purpose of security. Furthermore, the antichretic right of pledge could be similar to the independent right of antichresis. This was the case if a right of pledge was created over assets that were hard to transfer, or if the creditor’s power of foreclosure was excluded.22

Under ius commune the right of antichresis was created over the same kinds of assets as under Roman law. The creditor exercised the right of antichresis in the same way. Antichresis was frequently created over immovable property in particular.23 Contrary to my conclusion under Roman law, under ius commune it was beyond dispute that the antichresis creditor could collect rent receivables regardless of the legal relationship which they arose from.24

Furthermore, under ius commune there was a new category of assets that were ‘popular’ for the purposes of antichresis: feudal rights and manorial rights. The pledgee could exercise pledged feudal rights and manorial rights. This meant that he could exercise both private law powers, and powers under public law. In this respect the pledgee had more anti­chretic rights than under Roman law. A special application of the exercise of feudal rights and manorial rights took place when a right of pledge was created over a territory that formed an administrative unit, such as cities, counties and duchies. Execution sale of large territories was problematic, if not impossible. A right of pledge over these territories was interesting to a creditor nevertheless, because he could exercise pirvate law powers and powers under public law that were connected to the territories. For example, he could collect rent, taxes and administrative charges.25

In ius commune the right of antichresis had the same functions as in Justinian Roman law. If the security agreement was silent on the function of antichresis, it had an amortization function.26 However, interest antichresis was the most common in medieval legal practice. Usury laws such as interest maxima and the canonical prohibition of usury applied to interest antichresis. Still, interest antichresis was a popular way of lending money against an interest compensation. Interest antichresis gave creditors a pros­pect of a yearly return of up to 15% of the secured debt. Returns were so high that moneylenders sought to discourage redemption of the secured debt in the loan agreement.27

The ius commune right of antichresis met the need of security over assets that generated fruits, but were not suitable for execution sale. Under Roman law the independent right of antichresis had also met this need. In the ius commune era the need for this kind of security was might have even been higher than in Roman times. After all, immovable property, feudal rights and manorial rights generated natural and civil fruits, but the transfer of these rights was problematic in ius commune. The rights of antichresis made valuable security objects out of immovable property, feudal rights and manorial rights. Moreover, interest antichresis met the need of moneylenders to lend money against interest compensation.

Antichresis under Roman Dutch law hardly had any differences with its ius commune counterpart. However, contrary to ius commune, under Roman Dutch law scholars did devote attention to independent anti­chresis.28 Furthermore, antichresis imposed more obligations on the creditor under Roman Dutch law than under ius commune. The creditor acquired both the debtor’s rights and duties related to the security object.29 Under Roman Dutch law scholars also devoted attention to antichresis over mov­able property and receivables. For example, the creditor could lease out a pledged movable object. This did, however, involve the risk that the cred­itor would lose his security right because of the maxim mobilia non habent sequelam ex causa hypotheca.30 Furthermore, a right of antichresis could be created over receivables.31 This may also have been possible under Roman law, but this is not confirmed by any sources in the Corpus Iuris Civilis.32

Under Roman Dutch law the function of a silent right of antichresis was debated.33 The majority opinion was that the function of a silent right of antichresis was amortization. Just like ius commune, in Roman law there was a lot of attention for the creditor’s duty to use a security object. Lawyers explored whether the pledgee had met this duty in sev­eral different types of sources, such as scholarly literature, contracts and legal opinions.34 The pledgee was liable for a suboptimal yield of fruits if this suboptimal yield was caused by negligence or carelessness. In that case, the secured debt was reduced with the amount of fruits the creditor should have realised, instead of the (lower) amount of fruits the creditor had realised in reality.

In the Dutch codification period between 1798 and 1811 the Dutch legislator made several efforts to introduce a codification of civil law, in which the right of antichresis was included. Drafts by Kreet, Van der Linden and the first Dutch codification, Wetboek Napoléon, ingerigt voor het Koningrijk Holland, all contained an antichretic right of pledge. These provisions all were in line with Roman Dutch law. Said legislation did not provide for an independent right of antichresis.35

While codifications and accompanying repealing acts abolished Roman Dutch law in the Netherlands, it lived on in South Africa. Roman Dutch law remained in force as the common law of the Cape Colony when it was conquered by the British Empire in 1795. In the modern Republic of South Africa Roman Dutch law is still a part of the common law. Antichresis is part of South African security law. South African literature and case law focus on the pledgee’s duty to use a security object. If a secured creditor gains possession of a security object, two rules start to operate: the rule that the pledgee has to reap the fruits and account for them, and the rule that the pledgee may not use the security object for his own benefit. From the relationship between these two rules, it follows that the secured creditor has the right and duty to exercise his right of antichresis. The right of antichresis has an amortization function, unless contracting parties agree otherwise in the security agreement.36 Such an agreement can give an interest function to the right of antichresis.37

In South Africa each creditor has a right and duty to use a security object and reap its fruits if he has possession of this object. This is in line with Roman law, ius commune and Roman Dutch law.38 Thus, the right of antichresis prevents the security objects from becoming economically ster­ile while it is in possession of the creditor.39 The right of antichresis is cre­ated over ‘traditional’ objects such as immovable property.40 Antichresis is also applied on relatively modern assets such as shares41, and even whole businesses.42 In South African legal practice, most applied function of antichresis is amortization.43 However, the interest function of antichresis is still applied as well, for example in immovable property finance.44 Antichresis does not fulfil a need for additional security over fruits of a security object. This is because under South African law the secured creditor has a right of preference in bankruptcy over the fruits of a security object, even if the creditor has no security right over the fruits themselves.45 Still, South African law shows that antichresis can play a useful part in a modern legal system.

The German provisions for antichretic pledge (Nutzungspfand) are derived from Roman law.46 This right of antichresis is part of the German right of pledge.47 In German legal practice the right of possessory pledge only plays a marginal role.48 Modern variants of antichresis are applied more often in execution management of immovable property, fiduciary transfer and fiduciary assignment.49 These applications of antichresis are not deriv­ed from Roman law, but they are substantially comparable to the Roman default-antichresis. An independent right of antichresis is not known to German law. Furthermore, it is not possible to create an independent right of antichresis by creating a usufruct for the purpose of security.50

German antichresis over movable property has a lot in common with the right of antichresis of the Roman legal tradition. The biggest difference is that under German law a right of antichresis only arises tacitly if an object carries natural fruits. If parties wish to create a right of antichresis over an object that produces civil fruits, they have to stipulate this expressly in the security agreement.51 In Roman law, a right of antichresis arose tacitly if a right of pledge was created over any fruit bearing asset, regardless of whether those fruits were natural or civil fruits.52

A right of pledge over interchangeable goods that are suitable for consumption and disposition (irreguläres Pfandrecht) does not qualify as a right of pledge in the proper sense. Since interchangeable goods generally do not bear natural fruits, a right of antichresis does not arise. The pledgee with an irreguläres Pfandrecht has the right to ‘use’ the pledged goods by consoming them or disposing of them. This ‘right of use’ does not have any of the functions of antichresis under Roman law.53

Fiduciary transfer and fiduciary assignment result in a non-possessory security interest. Therefore, a right of antichresis does not arise, as the creditor never gets the security object in his possession. However, the fiduciary creditor is entitled to the civil fruits (interest) of the assigned claim. The same applies to fiduciary transfer, provided that parties agreed to this in the security agreement.54

German law execution administration (Zwangsverwaltung) bears resemblance to Roman default-antichresis. The mortgagee (Grundpfandgläubiger) can order execution administration when the debtor is in default with repayment of the secured debt. As a method of execution, administration is equivalent to sale. The mortgagee can initiate execution administration without having to initiate execution sale. However, he can also initiate both.55

The goals of execution administration are to retain the economic value of the security object and to satisfy the secured debt out of the fruits of the security object. Thus, execution administration bears resemblance to amortization antichresis that entered into force upon default of the debtor. However, German execution administration appears not to be derived from Roman antichresis. Contrary to Roman antichresis, administration is not carried out by the creditor himself, but by an independent third party who acts as administrator. An exception applies to banks and insurers: a specialised employee of theirs is allowed to be appointed as administrator.56

Execution administration meets the need for security over fruits that arise in bankruptcy. A right of pledge cannot be established on these fruits. However, if the mortgagee initiates execution administration, these fruits are part of the proceeds of administration. The mortgagee can satisfy his (interest)claim on these proceeds with priority over other creditors. Furthermore, execution administration meets a need in the event the value of the mortgage property is lower than the secured debt. Then, the mortgagee can continue the administration of the property until the secured debt has decreased enough for the execution proceeds to cover the remainder of the secured debt.57

In Germany and South Africa antichresis has existed uninterruptedly. However, in the Netherlands the introduction of the French Code civil in 1811 brought an end to antichretic pledge. This was a break with Roman law. The Code civil did provide for independent antichresis. However, the provisions were unclear.58 The legislator of the Dutch civil code of 1838 did not reintroduce the antichretic right of pledge, and abolished the French independent antichrèse. The explanation for this is that the legislator did not seek to align the Dutch civil code with Roman Dutch law. Furthermore, French antichrèse had fallen into disuse. This was probably caused by the poor provisions in the Code civil, and the emerging popularity of non-possessory security rights.59

Under the old Dutch Civil Code use of a pledged object without prior consent by the pledgee qualified as abuse, which could lead to the extinction of the right of pledge.60 This was contrary to Roman law: under Roman law the pledgee had a right and duty to use a fruit-bearing object by operation of law. Such use qualified neither as abuse of power, nor as theft (furtum).61 Under the old Dutch Civil Code, assuming that the pledg­ee had a silent right of antichresis was in violation of the separation of lim­ited rights of enjoyment and limited rights of security. Rights of use and acquisition of fruits qualified as powers following from a limited real right of enjoyment. Therefore, they were incompatible with security rights. If parties wanted to grant a right of antichresis to the secured creditor, they had to stipulate this in the security agreement. However, such a right of antichresis did not have effect under property law.62 The same applied to a clause that granted the mortgagee a power of management. Thus, a right of antichresis could neither be enforced against third parties, nor against a trustee in bankruptcy.63 A seperation of limited real rights of enjoyment and limited real rights of security was irrelevant to the right of antichresis under Roman law. Antichretic pledge did not qualify as a right of enjoyment, but primarily as part of a right of pledge. Both antichretic pledge and independent antichresis primarily had the nature of a security right.64 Under the old Civil Code the creditor with a right of pledge over receivables and shares did have a right of antichresis: he could collect the civil fruits (interest and dividend).65 This corresponded to the right of pledge over receivables and shares under Roman Dutch law.66 However, the pledgee’s right to collect interest and dividend appears not to be derived from Roman or Roman Dutch law. The nature of a fiduciary transfer of movable property was incompatible with a right of antichresis, since the creditor never acquired possession of transferred security objects. In fiduciary assignment a right of antichresis did come about, in that the pledgee could collect the civil fruits of the pledged object.67

Under current Dutch law a right of antichresis is not a part of a right of pledge. If a right of antichresis is combined with a right of pledge in the security contract, it has no effect under property law. This is a continuation of the old Dutch Civil Code. The same arguments apply as under the old Dutch Civil Code. Thus, not much has remained of the Roman antichretic right of pledge. Dutch law only recognises a very limited duty to use a pledged object. The pledgee is only under an obligation to use the security object if this is necessary to retain its value.68 Furthermore, property law does not grant a right of ownership of the fruits to the pledgee. This may be different if removing a part of a thing is does not qualify as acquisition of fruits, but as specification. If, however, the allocation of ownership is governed by the laws of acquisition of fruits, the acquired fruits shall accrue to the pledgor. If the pledgee wants to gain ownership of the fruits, the pledgor has to transfer ownership of the fruits to him.69 Moreover, the pledgee cannot satisfy the secured debt out of the fruits he reaped from the pledged object. He has to set off the debt to surrender the value of the fruits against his claim against the pledgor.70 This is impossible in bankruptcy. Then, the transfer of fruits reaped is invalid. The pledgee cannot set off the value of the fruits against the secured debt. He can still exercise a contractual right of use, but in this he cannot breach the fixation principle. This means that the pledgee’s right of antichresis has a very limited importance in bankruptcy.71

If the pledgee wants to recover his claim from the fruits, he has to have a right of pledge on these fruits. The pledgee can collect civil fruits (such as interest, dividend, license fees) if they are pledged to him. If a cred­itor has a right of pledge in advance over unharvested fruits and uncut plants, he is entitled to harvest these fruits himself in order to bring about a right of pledge thereon. A right of pledge over a fruit-bearing good itself does not contribute to having security over the fruits.72

The current Dutch Civil Code grants a property law power to take over administration to the mortgagee. This legal concept shows resemblance to the German concept of Zwangsverwaltung and the Roman concept of default-antichresis.73 The power of administration of the mortgagee is the only property law kind of antichresis in current Dutch law. It is, however, not derived of any of the aforementioned legal concepts. The management clause gives the mortgagee the power to take over management of the mortgaged property in the event of a serious shortcoming by the mortgagor. Among others, default of payment of the secured debt qualifies as a serious shortcoming. A shortcoming is considered to be serious in particular if the secured debt exceeds the value of the mortgaged prop­erty.74 One of the goals of mortgage management is to lower the secured debt by utilising the mortgage property. This is supported by the right of antichresis in Roman law and its development and the South African and German administration powers of a mortgagee in possession. Under Dutch law, the mortgagee can perform maintenance of the mortgaged property. He can even renovate the property. Furthermore, the mortgagee can rent out the property. He is entitled to collect rent receivables related to the property. In this respect it is irrelevant whether the receivables arise from a rental agreement entered into by the mortgagor or by the mortgagee. The mortgagee can reap both civil fruits and natural fruits from the mortgage property.75 If the mortgagee has a right of pledge over these fruits, he can recover his claim from these fruits. If he does not have a right of pledge, he can collect the fruits and set off the resulting debt to pay their value to the mortgagor against his claim.76 It is uncertain whether this set off holds in bankruptcy. An affirmative answer lies in the case Faillissement van den Brom (Van den Brom’s bankruptcy) from 1953, in which the Dutch Supreme Court held that the mortgagee has a right of priority on rent receivables after liquidation costs. This means that setting off the debt to pay the rent receivables collected by the mortgagee to the insolvent estate does not bring about a breach of equality of creditors. Moreover, the claim secur­ed by the right of mortgage and the debt to pay rent receivables collected by the mortgagee to the insolvent estate are connected.77

If the administrating mortgagee is indeed allowed to set off collect­ed rent receivables in (or in sight of) bankruptcy, administration by the mortgagee would meet the same needs as execution administration under German law and default-antichresis under Roman law and South African law. For the mortgagee it is interesting to administrate mortgage property if its value is lower than the secured debt. In this situation execution sale may not be opportune. By administrating the property, the mortgagee can partially satisfy his claim. He will particularly wish to do this if bankruptcy of the debtor is forthcoming. Then it is apparent that the debtor cannot pay back his mortgage debt, so taking over management of the mortgaged property contributes to satisfying the secured debt. However, if the mortgagee would not be allowed to set off the natural and civil fruits he collected in bankruptcy, administration by the mortgagee cannot contribute to satisfying the secured debt. This would be an important difference with German law, South African law and Roman law. It would then be questionable if administration by the mortgagee would meet any needs of financing practice.78

To Dutch law a legal concept like independent antichresis is unknown. To some extent it is possible to establish a right of independent antichresis by creating a limited real right of enjoyment. If parties wish to establish an independent right of antichresis over movable property, they could create a fiduciary right of usufruct.79 For immovable property parties could also opt for fiduciary registered long-term lease.80 However, the closed system of property rights and prohibition of fiduciary ownership of collateral poses risks to the validity of such constructions. These risks are particularly high if the creditor effectively has nothing more than a security right over the fruits. This arises if the creditor has no right of use, and is under an obligation to bring the value of the fruits in reduction of the secured debt. Furthermore, the creditor is always subject to the obligations arising out of a limited real right of enjoyment.81 Lastly, parties could choose to create a right of antichresis by fiduciary security transfer. Still, the prohibition of fiduciary ownership of collateral imposes risks to such a transaction. These risk do not apply to a transfer as part of a financial collateral arrangement.82

A right of independent antichresis created through a fiduciary limit­ed real right of enjoyment can be similar the right of antichresis of Roman law. A construction like this did, however, not exist in Roman law. This can be explained by the fact that, contrary to Roman law, independent anti­chresis is not recognised as a limited real right under Dutch law. However, a right of antichresis could arise as part of a fiduciary security transfer. Fiduciary security transfers were allowed under Roman law, so there was no risk of invalidity. Under Dutch law the closed system of property rights and the prohibition of fiduciary ownership of collateral create uncertainty as to what applications of independent antichresis are valid. Moreover, it is doubtful that fiduciary security usufruct and registered long term lease have an added value to management by the mortgagee.83 As to movable property, antichresis created by fiduciary security usufruct or fiduciary security transfer may meet a need by preventing the security object from becoming economically sterile. However, more effective measures may be available to meet this need.

This study raises the question whether the re-introduction of an antichretic right of pledge in Dutch law is desirable. Comparison with Roman law and its reception, South African law and German law leads to an affirmative answer. These legal systems show that, in the event of a possessory pledge, the interests of both the pledgor and the pledgee can be served by a right of antichresis. A right of antichresis enables the pledgee to apply the fruits in reduction of his claim. Likewise, the debtor’s debt is reduced. A right of antichresis can thus prevent that the pledge object becomes economically sterile while it is in possession of the pledgee. Furthermore, if a pledgee is interested in the fruits for security purposes, a right of antichresis enables him to directly influence the value of these fruits. Besides, the introduction of a property law antichretic right of pledge would eliminate a discrepancy between the provisions of pledge and mortgage. The mortgagee has a property law power to use the security object and reap its fruits: the power to take over management. The pledgee, however, has no such power. In my opinion, there is no justification for this discrepancy. The discrepancy implies that a mortgagee could take over administration of a mortgaged home (situated on land). The pledgee has to do without this power if he has a right of pledge over a house boat which qualifies as movable property. Both objects could bear fruits, and both the pledgee and the interests of both the pledgor and the pledgee could be served by a right of antichresis.

With this I do make the caveat that under most circumstances, the pledgor and the pledgee will prefer a non-possessory right of pledge. This enables the pledgor to use the security object for his business, and apply the business’s profits to pay his debts. However, sometimes the pledgee may want to take the security object in his possession. For example, a possessory right of pledge prevents that the right of pledge ceases to exist due to protection of third parties who acquired the pledge object. Furthermore, the pledgee may wish to take possession of the pledge object if he wishes to initiate execution sale. Thus, the pledgee may not always wish to have possession over the pledge object.84 But when he does take the object in his possession, a right of antichresis can serve his interest, and the interest of the debtor.

An argument against the introduction of an antichretic right of pledge would be that this could weaken the debt recovery position of other creditors. If the pledgee would have a right of antichresis, this would make the fruits unavailable for recourse by the other creditors. Thus, the introduction of an antichretic right of pledge may not be in the best interest of insolvency practitioners and joint creditors. This is less of an issue for administration by the mortgagee. A strong position of the mortgagee with regards to the fruits is justified by the fact that administration by the mortgagee has effect under property law. Furthermore, fruits can already be a part of the proceeds of execution of attached immovable property (article 507 Dutch Code of Civil Proceedings). Analogously, the fruits may be a part of the execution proceeds in bankruptcy, over which the mortgagee has a right of priority (article 180 section 2 Dutch Bankruptcy Code).85 Therefore, administration by the mortgagee does not lead to a (unacceptable) disadvantage of the debt recovery position of creditors.

Lastly, there is a risk that secured creditors abuse their rights of antichresis as part of a right of pledge or mortgage. In Roman law, creditors misused antichresis to exploit weaker debtors. They used antichresis to take over control of farmland belonging to the debtor, as security for a disproportionally small loan. Then, they utilised this farmland at a big profit. In medieval times, creditors used antichresis to receive interest compensations over loans. With this construction they circumvented the prohibition of interest-bearing loans. Thus, creditors could make a yearly profit of up to 15% of the outstanding amount. So through time, creditors abused anti­chresis to enrich themselves at the cost of weaker debtors. Malpractices like this could also occur in modern times.86 This thesis shows several starting points to counter abuse of antichresis. Through time legislatos combatted abuse in various ways. The Byzantine legislator placed limits on interest antichresis, and later even prohibited interest antichresis. The Roman-Catholic Church also opposed interest antichresis. Roman Dutch law and South African law show a less stringent (and possibly more effective) measure against interest antichresis: any restriction on redeemability of the secured debt is invalid. Furthermore, these legal systems demand that the mortgagee account for the fruits. A German countermeasure against abuse of Zwangsverwaltung is to let an independent third party conduct the administration under judicial control. This judicial control also applies if (by way of an exception) the administrator is an employee of the mortgagee. Furthermore, every administrator has to render account. Under Dutch law the mandatory court approval and accountability by the mortgagee may help to prevent abuse of the mortgagee’s administration powers.

It is doubtful whether reintroducing an independent antichresis in Dutch law is desirable. In Roman law and its reception independent antichresis met the need for security over assets that were hard to transfer. Problems with transferability mainly appeared with respect to immovable property, feudal rights and manorial rights. The natural and civil fruits were the security value of these goods. There is no attention for independent antichresis in South African law and German law. In these legal systems the right of mortgage – with administration powers – meet the demand for security over immovable property and fruits thereof. To my knowledge there are no issues with execution sale of immovable property. Nor does Dutch law have issues with the execution sale of immovable property which are such that independent antichresis is preferable over mortgage. Moreover, in the power to take over management a right of mortgage grants the right to use mortgage property and reap its fruits. In this respect a right of independent antichresis would not make much of a difference to the position of the mortgagee. If any legal obstacles with transferability of an asset should be encountered, taking away these obstacles would probably be a more effective solution than the introduction of independent antichresis. In modern Dutch literature some argue for the application of limited real rights of enjoyment as a means to create security over fruits. If, however, the legislator would deem broader possibilities to create security over fruits necessary, easing criteria for pledging future fruits would be preferable. If the secured creditor would wish to exercise more influence on the yield of fruits of the security object, a management clause in a mortgage agreement and a property law antichretic pledge would meet this need. These legal concepts create security not only over fruits, but also over the assets that bear these fruits. Therefore, I do not see an added value to the suggested application of fiduciary security usufruct in Dutch law.

Although Dutch law provides for the mortgagee’s power of administration, Dutch legal practice appears not to make use of this power very often. This might be caused by fear for and unfamiliarity with liabil­ity risks. It is questionable whether such a fear would be justified. Since Roman times the secured creditor has been liable for inefficient use of the security object. This liability risk has not stopped creditors from exercis­ing the right of antichresis and taking over management of the security property. Illustratively, in German law a third party conducts execution management of immovable property. The mortgagee has to carry costs of administration. Still, banks and insurance companies have been willing to assume liability risk for inefficient management in order to appoint an own employee as manager of the mortgage property. Apparently, the potential advantages of taking over management outweigh the liability risks. It is worth noting that, since execution management mainly happens through renting out the mortgaged property, the administrator does not need specialised knowledge of the company or the line of business of the debtor.

The Dutch provision of mortgage administration leaves a lot of questions unanswered. Statute, parliamentary history and case law only summarily show what mortgage administration entails, what its goals are and when the mortgagee can take over administration. Said sources do not provide clarity regarding liability of the administrator, recourse for the costs of administration and the exercise of mortgage administration in bankruptcy. In order to give further substance to mortgage administration, Roman law and its reception, South African law and German law could be sources of inspiration. The legislator and the judiciary could also aim to connect with Dutch legal history: Roman Dutch law and the Napoleonic Code for the Kingdom of Holland (Wetboek Napoleon, ingerigt voor het Koningrijk Holland). Lastly, the legislator could consider to qualify mortgage administration as an execution method, in addition to execution sale. This would give a clear answer to the question under what circumstances the mortgagee has a right of priority over the fruits of the mortgage object.

All in all, antichresis played a part in times when execution sale of assets was hard or undesirable. Economic crises are a case in point. In Roman law the legal concept of antichresis had its inception in such a crisis. The outbreak of the Antonine plague and long drawn-out wars caused the economy to collapse. If a creditor wanted to initiate execution sale in these times, he might be stuck with an irrecoverable remaining claim on his debtor. The debtor would then be left with an equal residual debt which he could not pay. Thanks to the right of antichresis, the creditor did not have to initiate execution sale. Instead, he could wait for better times and reduce his claim by exercising the right of antichresis. In modern Dutch law, the right of antichresis could still fulfil this role.