1 Introduction

This paper offers a legal analysis of the chapters regarding suretyships in the Peira, a unique document in Byzantine legal literature. Α suretyship may be defined as an agreement in which one party, the guarantor or ‘surety’ (or provider of the security), binds himself towards another party, the creditor, for the performance of an obligation that a third party, the principal debtor, assumes towards the creditor, in the event of default¹. A precondition for all forms of suretyship is the existence of a principal obligation and an undertaking by a party other than that supposed to perform the obligation that the obligation, or debt, will be fulfilled. A suretyship, therefore, consists of one party (the surety) binding himself to the creditor of a third party (the principal debtor) to be responsible for the fulfilment of the obligation of that third party if the latter fails to fulfil it himself. It establishes a triangular relationship between the surety, the creditor and the principal debtor. A suretyship is a form of personal insurance in the sense that it provides the creditor a personal claim against the surety which strengthens the original obligation, without a preferential right to obtain satisfaction from the value of a certain thing.

The main source of the Peira is a collection of legal opinions pronounced by Eustathios Rhomaios, who served as a judge at the High Court of Constantinople in the first half of the eleventh century². The anonymous author of the Peira, presumably an assistant of Eustathios who remains unknown to us, rearranged Eustathios’ legal opinions and judgments into seventy-five chapters and provided summaries of varying length. In many cases the author of the Peira has suppressed or omitted all the details concerning the persons involved in the trials and presented the material in an abstract way. The summaries are sometimes followed by a series of shorter paragraphs in which the author of the Peira, or perhaps a later scholiast or editor, explains the main points of Eustathios’ arguments, or presents quotations mostly from the Basilica.

An analysis of the relevant passages from the Peira will enable us to observe and gain a better understanding of how Roman-Byzantine law was applied in the eleventh century. In particular, I shall concentrate on exploring various aspects of the relation between these passages and the normative sources, with an emphasis on the Basilica. The Basilica, the ‘Imperial Laws’, are a massive compilation of legal texts, arranged into sixty books, that was promulgated in Greek around the year 900 by the Byzantine emperor Leo VI the Wise³. At a later stage, commentaries, the so-called scholia, were added as marginal notes to the text of the Basilica⁴.

Obviously, the value of the Peira for the purposes mentioned above depends, among other things, on the quality of the transmitted text. Unfortunately, the Peira has come down to us in only one rather poorly preserved manuscript, the Florentine Laurentianus LXXX.6⁵, dating from the 15th century. Its text was edited in 1856 by Zachariä von Lingenthal⁶ while a new edition by D. Simon is at its final stage of preparation.

There are three major approaches concerning the way in which the compiler of the Peira dealt with the normative sources, that is, with Roman-Byzantine law, which in the Peira is represented mostly by the Basilica⁷ :

a) According to Dieter Simon’s essay on ‘How the law was found in the Byzantine imperial court’⁸, Eustathios Rhomaios’ language is predominantly rhetorical and consequently the Byzantine jurist is regarded primarily as a rhetor who does not argue ‘from’ the law but ‘with’ the law. Simon claims that Eustathios does not follow a system of rules which can be arranged according to general criteria, classifying cases into thematic categories. Therefore, the law is just one argument among many: it may even be rejected.

b) According to Nikos Oikonomides⁹ and Alexander Kazhdan¹⁰, the passages in the Peira are examples of the abrogation of Justinianic law, and are therefore evidence of ‘alteration and change’ in Byzantine law rather than ‘traditionalism, imitativeness [and] stagnation’. Oikonomides in particular follows Simon in concluding that there is no legal systematization in the Peira, although the decisions are meant to apply Roman law. In his opinion, the compiler was interested in the application of justice and not in the primacy of legislation or in legal theory.

c) According to Boudewijn Sirks¹¹, Eustathios Rhomaios primarily attempted to apply the law, adhering to existing doctrine, in full agreement with the established Justinianic doctrine and legal reasoning. He was well aware of the law and applied it well.

Before any conclusions can be drawn, it is paramount to take a close look at the text of the Peira itself, mainly at those chapters which have never been studied in detail, such as the chapters relating to suretyships. At the end of this study, we shall briefly return to the above mentioned three major approaches. Whilst analysing the chapters in the Peira referring to suretyships, we shall also focus on the following issues: What law does Eustathios Rhomaios actually apply? How does he deal with the legal sources? In other words, how does he understand them, how does he interpret them, how can we evaluate his legal arguments and his legal reasoning? Was he in a position to fully comprehend the complexity of the Roman law of suretyship in its entirety? What is the connection between the Peira and the Basilica? Which of the aforementioned major approaches is more correct, or do we have to consider a fourth approach?

In order to gain a fuller and better understanding of the chapters referring to suretyships in the Peira, we have grouped these passages into different categories. Thus, we begin with a brief introduction about the different forms of suretyship in the Peira (§ 2) and this is followed by a section on women and suretyships (§ 3) and a section on dowries and suretyships (§ 4). Next comes an analysis of the principles of accessoriness and subsidiarity of suretyships in the Peira (§ 5). The study closes with the conclusions of the research (§ 6).

2 On the forms of suretyship in the Peira

From the papyri we have a wealth of evidence – which has not yet been sufficiently studied – indicating how widespread suretyship contracts were in the first few centuries of the Byzantine period¹². After the 8th century, when no papyri evidence exists, the absence of provisions on suretyship in the principal legislative work of the 8th century, the Ecloga, is compensated for by a special chapter in its Appendix, a private legal compendium which covers the subject. Furthermore, the presence of the most basic provisions of suretyships in the statutes of the 9th and 10th centuries, such as in the Eisagoge and the Procheiros Nomos, shows that suretyship was in use in the Middle Byzantine period. Provisions pertinent to suretyship are codified in the 26th book of the Basilica, though sadly the Basilica themselves do not offer scholia to this subject¹³.

The relatively widespread use of suretyships in the eleventh century is attested by the fact that of the 75 titles of the Peira, two titles are devoted to suretyships: namely, the twelfth title entitled Περὶ ἐγγυωμένων γυναικῶν (On women who act as sureties) and the sixty-fifth entitled Περὶ ἐγγυήσεων (On suretyships). No detailed comments will be made here on those chapters in the Peira that make only passing reference to guarantors, such as 8.34, which concerns the sale of real estate, 17.21 on the non-liability of guarantors in cases of sales of real estate without court permission, 19.13 and 19.14, which concern the law of pledges, 45.12, which explains bare contracts, and 61.3, which is used as an example of acts of wanton dishonour. Also, no detailed analysis will be made of 30.67, which concerns guarantees of attendance which were given at trials and consisted in the provision of some form of security ensuring that the plaintiff or the defendant would not suddenly disappear¹⁴. Chapter 26.12 of the Peira touches upon indirectly suretyship and because it is a lengthy Peira passage and to my knowledge, has never been studied before in detail, it is the subject of a separate study that I am working on. It should be noted, however, that for the performance of suretyship contracts only the term ἐγγύηση or its nominal and verbal derivatives (e.g. ἐγγυητής, ἐγγυῶμαι) were used, which by this time had incorporated all the previous forms of suretyship in Roman law. The same occurs also in those provisions concerned with suretyship which are incorporated in the Basilica. Though the said chapter has the heading Περὶ ἐγγυητῶν καὶ μανδατόρων predominant is the term ἐγγύηση.

3 Women and suretyships in the Peira

As mentioned earlier, the twelfth title of the Peira is entitled Περὶ ἐγγυωμένων γυναικῶν (‘On women who act as sureties’). The first chapter reads as follows:

Peira 12.1: Ὅτι γυναικὶ ἐγγυωμένη βοηθεῖται, καταβαλοῦσα δὲ ὑπέρ τινος οὐκ ἀναλαμβάνει. τούτου τοῦ νομίμου τὸν νοῦν ὁ βέστης οὕτως ἑρμήνευσεν, ὅτι, ὅτε μὲν ἐγγυᾶται, ἢ ἀγνοεῖ τόν νόμον τὸν περὶ τῶν ἐγγυητῶν καὶ ὡς γυνὴ συγγινώσκεται, ἢ γινώσκουσα τὸν νόμον ἐλπίζει βοηθεῖσθαι διὰ τοῦ νόμου· ἀρξαμένη δὲ ὑπὲρ τῆς ἐγγύης καταβάλλειν, καὶ μετὰ ταῦτα ἐπιζητοῦσα τὸ καταβληθέν, οὐκ ἀναλαμβάνει. διατί; ὅτι ἐκ δύο ἁμαρτημάτων ἕλκεται καὶ ὡς ἐγγυησαμένη καὶ ἢ ἀγνοοῦσα τὸν νόμον ἢ δολερῶς ὑπελθοῦσα τὴν ἐγγύην, καὶ ὡς δυναμένη καὶ μετὰ τὴν ἐγγύην ἀντιλέγειν καὶ ὅτε τὴν ἀρχὴν εἵλκετο πρὸςἀπαίτησιν μὴ ἀντειποῦσα.

Peira 12.1: The law [i.e. the Senatus Consultum Velleianum (hereafter SCV)] comes to the assistance of women who have acted as sureties, but if they have already paid money on behalf of others, they have no right to recover it. The vestes [i.e. Eustathios Rhomaios]¹⁵ interpreted the law as follows: When a woman acts as a surety either she is ignorant of the law concerning sureties and as a woman is excused or, despite being acquainted with the law, she still hopes that the law will come to her assistance. But when, after starting to fulfill her obligation as a result of her suretyship, she, in turn, seeks to recover her payment, she is not entitled to it. Why is that? Because she has fallen into two errors, that is, not only did she stand surety and either was ignorant of the relevant law or undertook the suretyship with malicious intention, but also, although she could have raised an objection after the suretyship, when she was initially asked to fulfil her obligation, she did not, however, raise the objection.

This passage from the Peira is devoted to clarifying a provision relating to the SCV¹⁶, which was enacted in the mid-first century AD¹⁷, and is closely connected with women’s suretyships, which it protects. Eustathios Rhomaios seems to believe that women are assisted by the law [i.e. the SCV] when they act as sureties, because their ignorance of the law is excused due to the alleged weakness of their sex (ὡς γυνὴ συγγινώσκεται) or because, despite being acquainted with the law, they still hope that it will come to their assistance. However, they have no right to recover their payments when they have fulfilled their obligation, because, according to Rhomaios, they are twice at fault: not only have they been ignorant of the relevant law but also they did not raise an objection before making any payment.

What is remarkable here is not Eustathios’ verdict in itself, which is entirely consistent with Roman law, but the legal reasoning, which leads him to this. Rather than simply distinguishing the different treatment of women depending on whether the obligation has been met, he begins by breaking down the provision into two parts (suretyship / suretyship + payment). Then he goes on to attempt to justify the different treatment of women from the perspective of the law by referring to their erroneous behaviour: in the first case, when they stand as sureties they can be forgiven for doing so because of the weakness of their sex, while in the second case, when they make payments of money, they commit – according to Eustathios – a second fault and consequently are not entitled to be protected by the law.

This interpretation by Eustathios is therefore noteworthy. According to him, the different way women were treated was justified as proportional to the severity of their erroneous behavior. One has to wonder, however, if Eustathios was able to fully comprehend the conditions which gave birth to the SCV, its regulatory scope of application and the meaning of intercessio. Τhe SCV provided protection for women when they interceded. Intercedere means to intervene, to interpose oneself between a debtor and a creditor and undertake a debt on someone else’s behalf¹⁸. Suretyship is considered to be an example of the intercessio. The true meaning of the regulation cited in Peira 12.1 is that women were protected by the SCV¹⁹ only when their debt was still outstanding, not if they had already paid it (mulier enim per senatus consultum relevatur, non quae deminuit, restituitur: D. 16,1,8,5 = B. 26,7,39,5, BT 1302/15) since in the latter case the obligation, which is an essential element of the intercessio, had ceased to exist. Roman law allowed women to invoke SCV’s protection only prior to them satisfying the payment of their obligations. In our opinion, this time-limitation was put in place to ensure the safety of the transactions. After all, SCV was instituted because at the time it was thought that women, because of the alleged ‘inbecillitas’ of their gender would incur enormous debts that they would be unable to pay off. This fear is of course a non-issue if women had already fulfilled their obligations and therefore they had no need of the SCV’s protection. According to Byzantines on the other hand women were entitled to invoke SCV’s protection at any time, particularly if their dotal property had been sold²⁰. Women had the right to assert that the sale of their dotal property was null and void because their consent to the sale was not considered informed unless they were explicitly made aware of their rights under the SCV.

The three paragraphs that follow seem to support and justify the interpretation by Eustathios mentioned above by repeating provisions of the Basilica relating to the SCV and its non-application, using the same wording as that which appears in Scheltema’s edition. In this sense, it seems that the compiler of the Peira employs the provisions of the Basilica to reinforce Eustathios’ rulings. Thus paragraph 12.2 stipulates that:

Peira 12.2: Καὶ ἐστὶ κεφ. λθ΄τοῦ ζ΄τί. τοῦ κↅ΄ βι.: Εἰ μέντοι μέλλουσα γυνὴ ἀντιφωνεῖν καταβάλλει ἢ δώσει ἀντ’ αὐτῆς ἕτερον χρεώστην, χώραν οὐκ ἔχει τὸ δόγμα· αἱ γὰρ ἔνοχοι γενόμεναι βοηθοῦνται, οὐ μὴν αἱ τὰ ἴδια μειώσασαι.

Peira 12.2: And the chapter 39 of the seventh title of the twenty-sixth book of the Basilica reads as follows²¹ : Ιf a woman who is going to undertake a liability for a debt fulfils her obligation or designates another person as debtor instead of herself, the consultum (i.e. the SCV) does not apply; for the consultum comes to assist those (women) who come under obligation, but not those who have already damaged their own property.

Of particular interest is the fact that paragraph 12.3 renders the relevant provision of the Basilica in an abridged form²², an intervention which was probably made deliberately as the complete text of the provision does not appear to be in line with Eustathios’ interpretation in paragraph 12.1²³.

Paragraph 12.4 of the Peira conveys an amendment made by Justinian to the SCV, as has been preserved in the Basilica²⁴.

Peira 12.4 (B. 26,7,86 = C.4,29,22, BT 1310/15-19): Καὶ κεφ. πε΄· Ἐὰν ἀντιφωνήσασα γυνὴ μετὰ δύο ἔτη τῆς ἀντιφωνήσεως ἢ δεύτερον ἐπερωτηθῇ ἢ ἐγγυητὴν παράσχῃ, ἐκπίπτει τῆς ἀπὸ τοῦ δόγματος βοηθείας. Εἰ δὲ εἴσω τῆς διετίας τῆς ἐγγύης ἓν ἐκ τούτων ποιήσει, δοκεῖ ὡς ἀπὸ τῆς παλαιᾶς πλάνης ὑπαχθεῖσα ἀντιφωνεῖν καὶ βοηθεῖται.

Peira 12.4: The chapter 85 reads as follows: If a woman who undertook a liability for a debt assumes, two years later, the liability of the debt for the second time or provides surety, she loses the assistance of the consultum. If she, within that period (of two years), performs one of the above actions, she is considered to have undertaken the liability for the debt influenced by the initial error and she is protected (by the law).

Also of relevance is chapter 25.1 of the Peira²⁵, which is included in the title ‘Οn women’ – and not in the twelfth chapter, as would be more correct from a methodological point of view – and which distinguishes the case in which a woman acts as a surety while having reaped some kind of benefit and therefore acts in her own interest and is thus deprived of the assistance provided by the SCV²⁶. There follow two decisions by Eustathios in cases where women played a leading role as sureties. The first decision reads as follows:

Peira 12.5: Ὅτι γυνὴ χρυσίον ἔλαβε παρά τινος ἐπὶ τῷ δοῦναι τοῦτο, ὥστε ἀπολυθῆναι τὸν ἄνδρα αὐτῆς ἀπὸ τῆς φυλακῆς, καὶ ἀπαιτουμένη τὸ χρυσίον ἔλεγεν, ὅτι οὐκ ἐδανεισάμην ἐγώ, ἀλλὰ τὸ μὲν χρυσίον εἴληφα, ὑπεσχόμην δέ, ἵνα εἰ μὴ πληρώσῃ τοῦτο ὁ ἀνήρ μου ἐξερχόμενος ἐκ τῆς φυλακῆς, παράσχω τοῦτο αὐτή, καὶ ὡς ἐγγυησαμένη τὸν ἄνδρα οὐκ ὀφείλω εὐθύνεσθαι. καὶ ὁ βέστης ἐσημειώσατο· νόμος φησί· ‘καὶ γυναῖκες ἀντιφωνοῦσαι ἐνέχονται, ἐν ᾧ μὴ ἰντερκεδεύουσιν’. εἰ δὲ τὸ ὑπὸ τῆς πρωτοσπαθαρίας πραχθὲν οὐκ ἰντερκεσίων ἐστίν, ἀλλὰ χρυσοὺς εἰληφυῖα ἐπὶ αἰτίᾳ νόμοις ἐγνωσμένῃ τὴν ἐκπλήρωσιν μεθ’ ὅρκου ὑπέσχετο, πῶς ἄν λόγων εὑρήμασι κινηθῇ τις ἀπαλλάξαι ταύτην τῆς ἐνοχῆς; πολλοῦ γε καὶ δεῖ· ἐπεὶ καὶ νόμος φησὶν ἕτερος· ‘ἐὰν ἀπατῶσα γυνὴ ἢ γινώσκουσα μὴ ἐνέχεσθαι ἀντιφωνήσῃ, οὐ βοηθεῖται’. εἰ δὲ καὶ ἀντιφώνησις ἦν τὸ πραττόμενον, ᾔδει πάντως μὴ ἐνέχεσθαι· ἤκουε γὰρ τῆς εὐχῆς λεγούσης δεδιέναι γυναικὶ πιστεῦσαι, ὥστε καὶ ὤμνυ καὶ τὴν προῖκα τῇ γυναικὶ καθυπεζεύγνυ· οὐ μὴν ἀλλὰ καὶ ἠπάτησε· τὸ δὲ τοῦτο δῆλον ἐξ ὧν καὶ <ὅρκοις> ἑαυτὴν φρικωδεστάτοις καθυπέβαλλεν.

Peira 12.5: Concerning the fact that a woman took an amount of money from someone with the aim of paying for her husband’s release from prison. And when she was asked to return it, she claimed: ‘I did not borrow it but I took the amount on the promise that if my husband did not return it on his release from prison, I myself would do so, and so, as I was standing surety for my husband, I am not liable’. And the vestes²⁷ noted: The law decrees: ‘Even when women stand surety they are liable, so long as they are not interceding’. Since, therefore, what the wife of the protospatharios did does not constitute intercessio, but in taking money for a certain reason, she promised to pay off the debt by means of an oath, can she be acquitted of her liability? Of course not. For there is another law that decrees: ‘If a woman through deceit or in the knowledge that she is not liable contracts an antiphonesis, she is not entitled to assistance’. So, even if what she did constituted an antiphonesis, she knew in any case that she was not liable. For she was aware of the saying ‘You should be afraid of trusting a woman’ and therefore pledged [to pay the money] with her dowry as security. And, of course, the woman committed an act of deceit. And this is clear from the fact that she subjected herself to swearing terrible oaths.

The details of the case are roughly as follows: A woman’s husband, who is a protospatharios²⁸, is in prison as a result of debt²⁹ and his wife takes some money from another person in order to obtain his release. When she is sued for recovery of the money she claims that she did not contract a loan but stood surety for her husband and so bears no liability whatsoever. In effect, the woman appears to invoke the provision in chapter 8 of Justinian’s Novel 134, which is better known in its Latin form as the Authentica si qua mulier. This provision completes Justinian‘s amendments of the law regarding intercessio³⁰ and consequently the SCV, and dates from the year 557. It stipulates that any intercessio by a woman, and therefore any suretyship – which, as we have seen, was the most common form of intercessio – that she enters into on behalf of her husband is null and void, regardless of whether and how many times the woman has done this before, and regardless of the nature of the debt³¹. The woman, however, is afforded no protection if it is proven that ‘the sums lent have been used for the benefit of the woman’³².

Eustathios does not concern himself at all with the provision of B. 23,2,4, which, as already mentioned, in our view is invoked tacitly by the protospatharios’ wife. He instead, as a major premise of his legal reasoning, initially notes the provision in Basilica 26,7,1 (BT 1297/7) which itself is a Greek rendering of a provision of the Digest³³. Even if we accept, according to Eustathios’ reasoning, that this is a case of antiphonesis³⁴ and that there was no intercessio³⁵, the woman continues to be liable, according to another provision of the Basilica which Eustathios quotes word for word³⁶. The fact that the woman consciously stood as surety for her husband³⁷ can be presumed from the fact that she pledged her dotal property as surety and, as a result, is in no way entitled to the protection of the law, an interpretation which concurs with that in chapter 12.1 of the Peira. What is worth noting is the invocation of the specific passages from the Basilica³⁸, as well as the formulation of Eustathios’ reasoning, which in this particular case does not significantly differ from modern practice, in the sense that its major premise presents two contrasting rules of law and, once these laws have been applied to the questions of fact, a final verdict is pronounced.

The second example of jurisprudential practice is to be found in paragraph 12.6 of the Peira:

Peira 12.6: Ὅτι γυνὴ μετά τινος ἐδανείσατο, καὶ τὸ δάνειον συνέστη μετ’ἀλληλεγγύου ἐνοχῆς, καὶ ἕλκοντος τοῦ δανειστοῦ τὴν γυναῖκα εἰς τὸ ὅλον χρέος, ἔκρινεν ὁ μάγιστρος καὶ ἠλευθέρωσε ταύτην τῆς ἐνοχῆς τῆς ἐγγύης, γράψας οὕτως·ὁ δανειστὴς τὸ χρέος ἅπαν ἐκ τῆς γυναικὸς ἐπεζήτει διὰ τὸ ἐγγεγράφθαι τῇ ὁμολογίᾳ ἑκάτερον πρόσωπον εἰς ὁλόκληρον εὐθύνεσθαι καὶ ἕκαστον ἀντὶ τοῦ ἑτέρου. ἀλλ’οὐ τῷ νόμῳ τοῦτο δοκεῖ, οὐδὲ τὸ δικαστήριον τὴν τοιαύτην προσήκατο πρότασιν. ἐγγύης γὰρ ἁπάσης τὸ θῆλυ γένος ὁ νόμος ἀφῆκεν ἀνώτερον· ταὐτὸν δὲ ἐστὶν ἐγγύη καὶ ἀλληλέγγυος ἐνοχή· ὥστε οὐδὲ ἡ ἐντεθεῖσα τῷ ἐγγράφῳ περὶ τῆς ἀλληλεγγύου εἰσπράξεως συμφωνία. τοῦτο δὲ τὸ νομικὸν ἐκ μονοπλεύρου κρατεῖν εἶχεν ἰσχύν. τῆς μὲν γὰρ γυναικὸς ἀπορούσης πρὸς τὴν ἡμίσειαν τοῦ χρέους ἔκτισιν, πρὸς ἀνάγκης ἂν ἦν τῷ ἰωάννῃ καὶ εἰς ὁλόκληρον εὐθύνεσθαι· τούτου δὲ πρὸς καταβολὴν ἀτονοῦντος τοῦ ἡμίσεως, ἡ γυνὴ οὐδὲν πλέον τῆς ἐπιβαλλούσης αὐτῇ μερίδος ἐκτίννυσι. ὡς πρωτότυπος μὲν γὰρ εὐθύνην ἔχει, τὸ δ’ ἐξεγγυημένον μέρος ἀποδιοπομποῦσι ταύτης αἱ διατάξεις.

Peira 12.6: Concerning the fact that a woman has borrowed money jointly with another person, and that the loan was formulated in such a way as to hold them jointly and severally liable. And after the creditor had proceeded against the woman for the whole amount, the magistros ruled that the woman should be free from the obligation arising from the suretyship in these words: the creditor claimed the whole debt from the woman for in the agreement it was written that each party was liable for the whole performance. But according to the law this statement is not valid; nor did the court accept this formula. For the law protects all women in the case of suretyship contracts. Suretyship and joint and several liability are after all the same thing, so that the agreement stated in the document about the solidary payment is invalid too. This formula was valid only for one debtor. If the woman had no means to pay her proportionate share of the debt, then John would be liable for the whole amount. If, however, he is insolvent in relation to his proportionate share, the woman does not pay more than her share, for she is liable only as principal debtor, whereas her liability as surety is invalid according to the law.

According to this decision, a certain woman and a certain man by the name of John had jointly borrowed a certain amount of money by means of a written agreement, and, in fact, had agreed that they would be jointly liable (ἀλληλεγγύως) and as it is characteristically mentioned in the excerpt: ἑκάτερον πρόσωπον εἰς ὁλόκληρον εὐθύνεσθαι καὶ ἕκαστον ἀντὶ τοῦ ἑτέρου [the loan was formulated in such a way as to hold them jointly and severally liable]³⁹. When the creditor, as he was fully entitled to do, brought an action against the woman to recover the whole of the debt, Eustathios was of the opinion that she, unlike John, was liable only for her share. Eustathios believed that the liability for the remainder of the debt should be construed as a suretyship (ταὐτὸν δὲ ἐστὶν ἐγγύη καὶ ἀλληλέγγυος ἐνοχὴ) and that it was illegal for the woman to undertake such an obligation: ἐγγύης γὰρ ἁπάσης τὸ θῆλυ γένος ὁ νόμος ἀφῆκεν ἀνώτερον. If she was unable to pay, John would also be liable for her share (τῆς μὲν γὰρ γυναικὸς ἀπορούσης πρὸς τὴν ἡμίσειαν τοῦ χρέους ἔκτισιν, πρὸς ἀνάγκης ἄν ἦν τῷ ἰωάννῃ καὶ εἰς ὁλόκληρον εὐθύνεσθαι), but the opposite would not apply (τούτου δὲ πρὸς καταβολὴν ἀτονοῦντος τοῦ ἡμίσεως, ἡ γυνὴ οὐδὲν πλέον τῆς ἐπιβαλλούσης αὐτῇ μερίδος ἐκτίννυσι). In any event, the woman’s liability for half of the debt still stood (ὡς πρωτότυπος μὲν γὰρ εὐθύνην ἔχει, τὸ δ’ἐξεγγυημένον μέρος ἀποδιοπομποῦσι ταύτης αἱ διατάξεις).

Eustathios’ legal reasoning in this particular case, at least to the extent that it is expressed in the Peira, seems flawed in many respects. Ηe interprets the term ἀλληλεγγύως literally rather than legally and by doing so he equates it with the term ἐγγύηση⁴⁰. He equates a loan agreement with debtors who are severally liable with a suretyship contract, and he applies provisions relating to suretyships in order to free the woman from her liability. It is precisely the addition in the loan agreement of the clause ἑκάτερον πρόσωπον εἰς ὁλόκληρον εὐθύνεσθαι καὶ ἕκαστον ἀντὶ τοῦ ἑτέρου that ensures the full liability of the woman. Ιf one adopts such a view as Eustathios’, one is in effect led to regard all joint loan agreements involving women as suretyship agreements and to believe that, as such, they provide the women involved with the protection of the SCV. However, the senatorial decree makes no such allowances. The text makes mention of ‘obligationes feminarum, quae pro aliis reae fierint’⁴¹. In our opinion, this reasoning on Eustathios’ part should not be attributed to his inability to comprehend the concept of joint liability but rather to his desire, in this particular case, to protect the woman.

4 Chapters in the Peira relating to suretyships and dotal property

As is well known, when marriages were contracted in Byzantium the main form of property provided by the woman was her dowry. However, while the wife continued to be owner of her dotal property for the duration of the marriage, it was the husband who administered it and, for this reason, he was often called upon to provide sureties for it to make it more secure. For this reason cases frequently appear in Peira concerning the fate of the wife’s dotal property in relation to the property of the guarantors, which had been provided by the future husband⁴². Yet, it was not compulsory for the husband-to-be to provide such guarantees when he received the dotal property at the time of the engagement, unless it had been agreed otherwise. This can be seen from the interpretation made by Eustathios in the Peira 25.26, which constitutes a more specific manifestation of the principle pacta sunt servanda⁴³.

Peira 25.26: Ὅτι ὁ ἀνὴρ παραλαβὼν τὴν προῖκα ἐγγύας οὐκ ἀπαιτεῖται, τὸν νόμον ἔχων βοηθόν. ἔλεγε τοίνυν ὁ βέστης· ὅτι ἐν τῷ καιρῷ τοῦ ἀῤῥαβῶνος εἰ μὲν μὴ συμφωνηθῇ ῥητῶς δοῦναι τὸν ἄνδρα ἐγγυητήν, ἐν τῇ δόσει τῆς προικὸς οὐκ ἐπιζητεῖται ὁ τοιοῦτος ἐγγύας· εἰ δὲ συμφωνηθῇ ἐν τῷ ἀῤῥαβῶνι δοῦναι ἐγγυητήν, ἐκ παντὸς δίδοται ὁ τοιοῦτος. καὶ εὑρὼν τὸ τοιοῦτον συμπεφωνημένον ἐδικαίωσε τὸν συμφωνήσαντα. εἶπε γὰρ εἰς τὸ μὴ συμπεφωνημένον ὅτι δύναται λέγειν ὁ ἀνήρ, ὅτι εἰ ἐγὼ ἤκουσα, ὅτι ἐγγυητὴν ζητεῖς, οὐκ ἂν ἠθέλησα γενέσθαι σου γαμβρός, καὶ ὅπερ τότε οὐ συνεφώνησας, νῦν ἐν τῷ γάμῳ οὐ μὴ ἀπαιτήσεις. πᾶν δὲ τὸ συμπεφωνημένον ἐκ παντὸς ἀπαιτεῖται.

Peira 25.26: Concerning the fact that the man, on receiving the dowry, is not obliged to provide a suretyship for it as he is protected by the law. On this the vestes said that if, during the period of the engagement, no express agreement has been made for the man to provide a surety upon the handing-over of the dowry [by the woman], the man is not obliged to provide suretyships. If, however, during the engagement period an agreement is made for the man to provide suretyships, it is essential that a surety be provided. So, on finding that such an agreement had been made, he vindicated the person who had agreed to it. For he said, with regard to what had not been agreed, that the man might make the following assertion: If I had been informed that a surety was being asked for, I would not have desired to enter into this marriage. And now, after the marriage has been contracted, do not demand something you did not agree to earlier [during the period of the engagement]. Because agreements must be kept.

The protection of dowry property formed the basis of another case that the magistros Eustathios was called upon to solve. The details are as follows:

Peira 26.26: Ὅτι δανείσας τίς τινι καὶ ἐγγυητὴν τὸν αὐτοῦ [θεῖον] προσελάβετο. εἶτα ὁ δανεισάμενος λαμβάνει γυναῖκα, καὶ ἀπαιτεῖ τὸ χρυσίον ὁ δανειστὴς ἀπὸ τοῦ ἐγγυητοῦ, καὶ πάλιν ὁ ἐγγυητὴς ἀπαιτεῖ τοῦτο ἀπὸ τοῦ χρεώστου συνεστῶτος τοῦ γάμου, καὶ γίνεται ἄγραφος ἀπόδειξις, ὁμολογοῦντος τοῦ ἐγγυητοῦ, ὅτι ἐκρατήθη αὐτὸς παρὰ τοῦ δανειστοῦ καὶ εἰσεπράχθη τὸ χρέος καὶ νῦν ἀπολαμβάνει τοῦτο. τελευτᾷ ὁ χρεώστης. ἀνίσταται ἄπορος γυνὴ ἐπιζητοῦσα τὴν προῖκα· ἕλκει τὸν δανειστὴν ὡς ἀπολαβόντα τὸ χρέος· προκομίζεται ἡ ἀπόδειξις τοῦ θείου, καὶ καταδικάζεται ἐκ ταύτης ἡ γυνή. καὶ ἐσημειώσατο ὁ μάγιστρος οὕτως· εἰ μὲν ὁ χρεώστης ἐξέτισε τὸ χρέος τῷ δανειστῇ, ἦν ἂν ἐνδύναμος παραγραφὴ τῇ γυναικὶ περιγραφείσῃ. ὁ γὰρ δανειστής, ὑπόπτως ἔχων πρὸς τὴν τοῦ χρεώστου περιουσίαν, ἐγγυητὴν προσέλαβε, ὥστε εἰ μὲν τὸν ἐγγυητὴν εἰσεπράξατο, ὅς, κἂν ἀπόρως εἶχεν ὁ χρεώστης, εὐθύνεσθαι ὤφειλεν. εἰ δὲ ὁ χρεωστῶν πρὸς περιγραφὴν ὕστερον τῆς αὐτοῦ γυναικός, θεραπεύειν ἐθέλων τὸν ἐγγυητήν, χρυσίον αὐτῷ παρέσχεν, κατ’ οὐδὲν προκριματίζει τοῦτο τὸν δανειστήν.

Peira 26.26: Concerning the fact that a certain man, after making a loan to another person, got his uncle to stand surety. Later, the principal debtor acquired a wife, and the creditor obtained the money from the surety, and then the surety demanded the amount from the principal debtor while he was still married, and a written receipt was made out in which the surety acknowledged that he [the principal debtor] had been temporarily detained by the creditor, that the debt had been recovered, and that he [the creditor] was now in possession [of the amount]. Then the principal debtor died and his destitute wife appeared and, seeking [to recover] her dowry, took action against the creditor because he had recovered the debt. The receipt containing the acknowledgement of the uncle [i.e. the surety] was presented to the court and the woman’s action was dismissed as a result of it. And the magistros noted the following: if the principal debtor had paid the debt back to the creditor, the woman would have had good cause to raise a plea because of the harm that had been caused [to her dotal property]. The creditor, however, because he had had doubts regarding the debtor’s property, had sought a surety so that, even if the principal debtor were destitute, this surety would continue to bear the liability. If, therefore, the principal debtor, wishing to satisfy the surety even at the expense of his wife’s property, gave him the amount [which he, the surety, had paid], that did not concern the creditor in any way.

In this particular case, which Eustathios was called upon to solve when he was magistros, a man borrows a certain amount of money from another man, and as the former is unable to repay the loan, the creditor’s uncle, who has stood surety for him⁴⁴, pays it back to the creditor, after the principal debtor had been temporarily detained by the latter⁴⁵. Later, evidently by bringing an action of mandate against him⁴⁶, the uncle who has stood surety for the creditor is satisfied by the principal debtor at the expense of his wife’s property. When the latter dies, his destitute wife, as heir of the principal debtor, brings an action against the creditor in order to recover her dotal property⁴⁷. Eustathios correctly dismisses the action mainly on the ground that the drawing-up of the suretyship agreement created an obligation between the creditor and the surety; this obligation is different from the obligation existing between the creditor and the principal debtor which forms the basis of the claim insured by the suretyship. Indeed, the suretyship agreement serves this purpose of securing the creditor with a further debtor. What is of interest here is that the debtor’s wife brings an action against the creditor; the outcome of the trial would have been different if she had brought an action against the surety, who was the one to benefit from the harm caused to her dotal property. Eustathios’ ruling demonstrates a very sound knowledge of the mechanisms of suretyship.

In cases where immovable dotal property is not secured by a surety and the husband expropriates it, the latter is required to provide a surety, as we learn from a ruling in the Peira that is mentioned in two chapters, with roughly the same wording in each case⁴⁸ :

Peira 38.7 = 25.27: Ὅτι ὁ ἀνὴρ λαμβάνων χωρὶς ἐγγυητοῦ προῖκα ἔχουσαν ἀκίνητα, ἀπαιτεῖται ἐγγυητὴν μέλλων πωλεῖν τὰ ἀκίνητα, ἐπεὶ ὕστερον ὁ ἀγοραστὴς νικᾶται ὑπὸ τῆς γυναικός. λέγει γὰρ ἡ γυνή, ὅτι ἐγὼ βλέπουσα τὸν ἄνδρα μου ἔχοντα τὸ ἀκίνητον τὸ ἀφρόντιστον, καὶ ἐν ἀρχῇ τοῦ γάμου εἰ μὴ εἶχον ἀκίνητον καὶ ἐθάῤῥουν τούτῳ, οὐκ ἂν κατεπίστευσα τῷ ἀνδρὶ τὴν προῖκα, εἰ μὴ ἔλαβον ἐγγυητήν, ἐξ οὗ ὀφείλω παθεῖν τὸ ἀσφαλὲς ἐξ ἀποτελέσματος. τοιαύτην ὑπόθεσιν ἔκρινέ τις τῶν μεγάλων, καὶ ἐδικαίωσε τὸν ἀγοραστὴν ἀγοράσαντα ἀκίνητον γυναικὸς καὶ ᾠκονόμησε λαβεῖν τὸν ἄνδρα τὸ χρυσίον χωρὶς ἐγγυητοῦ. τὰ δὲ ἀκίνητα ἔλαβε μὲν εἰς προῖκα ὁ ἀνήρ, ἐξενικήθησαν δὲ παρά τινος ὡς μὴ διαφέροντα τῇ γυναικί, ἀλλ’ ἡ τιμὴ τούτων· καὶ ὁ ἐκνικήσας τὰ ἀκίνητα ἐπώλησε ταῦτα πρός τινα, καὶ δέδωκε πρὸς τὸν ἄνδρα τῆς γυναικὸς τὸ χρυσίον, καὶ ἔκρινεν, ὡς εἴρηται, ὁ δικαστής, μὴ εὐθύνεσθαι τὸν ἀγοραστὴν ἐξ ἀπορίας τοῦ ἀνδρὸς ὕστερον παρὰ τῆς γυναικός, γράψας λογισμόν, ὅτι ὁ ἐγγυητὴς οὐ δίδοται ἐν τῇ προικί, καὶ τὸ χρυσίον νῦν προῖξ ἐστι, καὶ καλῶς ὁ ἀνὴρ παραλαμβάνει τοῦτο χωρὶς ἐγγυητοῦ. ἀλλ’ ἀντέπιπτεν ὁ βέστης λέγων, μὴ ἁρμόζειν τὸ τοιοῦτον νόμιμον ἐνταῦθα· εἰ μὲν γὰρ ἐξ ἀρχῆς τοῦ γάμου τὸ χρυσίον ἐδίδοτο εἰς προῖκα, χωρὶς συμφώνου ἐγγυητὴν οὐκ ἀπῃτεῖτο· ἐπεὶ δ’ ἐν ἀρχῇ ἀκίνητον μὲν ἐδόθη, νυνὶ δὲ ἐναλλάσσεται, καὶ ἔρχεται εἰς κινητὸν εὐκόλως δαπανᾶσθαι δυνάμενον, ἐπισφαλῶς δίδοται παρὰ τοῦ ἀγοραστοῦ ἄνευ ἐγγυητοῦ· καταδαπανωμένου γὰρ τούτου ἡ γυνὴ τὸν ἀγοραστὴν νικήσει, ἐκνικοῦσα τὰ ἀκίνητα ἢ τὴν τούτων τιμήν, λέγουσα, ὅτι ἐγὼ ἀκίνητον ἔχουσα ἐν προικὶ καὶ θαῤῥοῦσα τούτῳ οὐκ ἀπέλαβον παρὰ τοῦ ἀνδρὸς ἐγγυητήν, σὺ δὲ τὸ ἐμὸν λαμβάνων καὶ ἀμείβων τὴν προῖκα ὑπόκεισαί μοι ποιεῖν τὸ ἱκανόν, θαῤῥήσας τῷ ἐμῷ ἀνδρὶ καὶ παρασχὼν τούτῳ τὸ χρυσίον· εἰ γὰρ ἐγὼ εἶχον τοῦτο, οὐκ ἂν χωρὶς ἐγγυητοῦ τοῦτο παρέσχον αὐτῷ.

Peira 38.7 = 25.27: Concerning the fact that a husband, even if he has received immovable dowry property without a surety, is required to provide a surety if he intends to sell that property, because the buyer will be liable to the man’s wife. This is because the wife may claim that ‘although I saw that my husband was neglecting the [dotal] property – and even if, at the beginning of our marriage, I had not possessed any property but had been able to trust my husband – I would not have entrusted the dowry to my husband if I had not obtained a surety who would be able to compensate me’. A case like this was judged by one of the great judges, who vindicated the buyer who bought the woman’s [dowry] property and ruled that the husband could take the amount [from the sale] without a surety. Although the husband had received the real estate as a dowry, a third party, however, had acquired ownership of it by virtue of a judicial decision on the grounds that the property itself did not belong to the woman but only its value. And the man who acquired the ownership of the property sold it to someone else and gave the amount [from the sale] to the woman’s husband, and the judge ruled, as has already been mentioned, that the buyer bore no liability to the woman for her husband’s penury, on the grounds that no personal sureties were given for dowries and that the sum of money that had been paid [the satisfaction] now constituted the dowry and the husband did well to receive it without a surety. However, the vestes [Eustathios Rhomaios] objected to this, saying that in this particular case the present provision could not be applied. This was because if at the beginning of the marriage the money had been given as a dowry without an agreement, a surety would not have been required. Since, however, at the beginning an immovable property had been given [as a dowry] and now that property had been exchanged and converted into money that could be easily spent, it was risky [as far as the woman was concerned] for that money to be given by the buyer without a surety. For if that money was spent, the woman would receive vindication from the buyer, taking the property or its value, if she claimed that ‘as I possessed immovable dowry property and trusted there would be no problem with that, I did not obtain a surety from my husband, but you, by taking my dowry property, are liable to me in terms of giving me compensation [for the value of my dowry property] because you showed that you trusted my husband and gave him the money [as satisfaction for the dowry]. For if I had had that money, I would not have given it [as a dowry] to him without a surety’.

According to the ruling discussed in this passage, a certain person claimed and acquired real estate that belonged to a woman’s dowry property on the grounds that the property itself did not belong to the woman but only the value it represented⁴⁹. Later the buyer sold the property to someone else⁵⁰ and gave the money from the sale to the husband. After that, the wife evidently sought to nullify the sale as the proceeds from it should have been secured by a surety. One of the ‘great judges’⁵¹ ruled that the buyer bore no liability for the penury of the husband⁵². The ‘great judge’ appears to invoke the provisions in B. 19,1,21-23 and 28,9,2-3 and for this reason regards the sale of the property as valid⁵³, whereas what matters most for Eustathios is, that the woman’s dowry property should be afforded the greatest possible protection and so, in his opinion, the sale is invalid. It is noteworthy that Eustathios, unlike the ‘great judge’ who seems to be fixed to the ‘letter of the law’, by taking into account the effect of the judicial decision is closer to the spirit of the law.

Towards the end of his career, while holding the title of mystikos, upon an order by the emperor⁵⁴, Eustathios was called upon to decide, in a case involving three co-sureties, how a debt should be divided between the debtor and most of the co-sureties:

Peira 65.1: Ὅτι ἐγγυησάμενοί τινες τρεῖς ἔχοντά τινα γυναῖκα, καὶ τελευτήσαντος τούτου ἡ γυνὴ ἀπογραφὴν τῆς ὑπάρξεως ἐποιήσατο ἐνόχου ὄντος τῷ δημοσίῳ, καὶ ὑπόμνημα ἔλαβε παρὰ τοῦ σκρίβα δικαιοῦν αὐτὴν ἐπὶ ἱκανώσει προικὸς τὰ εὑρεθέντα ἔχειν, ἀλλ’ ὁ δημόσιος ὑπὲρ τῆς λοιπάδος τῆς προικὸς ἀφείλατο ταῦτα, τὴν γυναῖκα κρατήσας καὶ τοὺς ἐγγυητὰς καὶ προσαφελόμενος ἐξ αὐτῶν ἀνὰ νομίσματα μη’. ἡ οὖν γυνὴ εὑροῦσα χρεώστας τοῦ ἀνδρὸς ἀπῄτησεν αὐτοὺς τὰ χρέα ἤτοι νομίσματα ξγ΄. καὶ οἱ ἐγγυηταὶ προσῆλθον τῷ βασιλεῖ αἰτούμενοι λαβεῖν τὰ ἀπαιτηθέντα παρὰ τῆς γυναικὸς προβαλλόμενοι πραγματικοὺς τύπους. ὁ δὲ βασιλεὺς ἀκροασάμενος τῆς ἀμφισβητήσεως ἀντιγράφει πρὸς τὸν πατρίκιον μυστικὸν τότε ὄντα ῥητῶς οὕτως· ὁ δεῖνα καὶ ὁ δεῖνα εἰς τὴν βασιλείαν μου ἀνεκάλεσαν, ὅτι ἐγγυήσαντο εἰς δουλείαν τὸν δεῖνα, καὶ μετὰ τελευτὴν ἐκείνου ἐκρατήθησαν αὐτοὶ καὶ ἡ γυνὴ αὐτοῦ, καὶ κατέβαλον τὸ ὑποχρεωστούμενον ἐκπληρώσαντες τὴν εὐθύνην·ὕστερον δὲ ἡ γυνὴ εὗρε χρεοφειλέτας τοῦ ἀνδρὸς καὶ ἀνελάβετο ἐξ αὐτῶν χρυσίον· καὶ κελεύει σοὶ ἡ βασιλεία μου, ἵνα ἴδῃς πόσον ἐστὶ τὸ χρυσίον, καὶ λάβωσι καὶ αὐτοὶ μερίδα ἀπὸ τοῦ χρυσίου, ὅσαν ἄν προκρίνῃς σὺ κἄντε ἐπίσης κἄντε ὀλιγωτέραν. οὕτως οὖν ἐχούσης τῆς γραφῆς τὰ μὲν λα’ πρὸς τῷ ἑνὶ τῇ γυναικὶ κατέλιπε, τὰ δὲ λβ’ τοῖς δυσὶν ἐγγυηταῖς κατέλιπε, μερίσας αὐτοῖς ταῦτα. εἰ γὰρ καὶ ὁ τρίτος τῶν ἐγγυητῶν περιῆν, τάχα ἂν κἀκείνῳ ἐπενεμήθη μερίς, ἣν ἀφῆκε τῇ γυναικὶ πονησάσῃ πολλὰ καὶ δικαστηρίοις ἐνασχοληθείσῃ.

Peira 65.1: Concerning the case in which three men stood surety for a married man and when that man died, his wife made an inventory of his property as he owed money to the state, and she obtained a document from the grammateus entitling her to claim an inheritance from her dowry property. The state, however, in order to recover the rest of the amount owed by her husband, deducted that amount from her dowry and detained [i.e. imprisoned] the woman and the sureties, and took 48 coins from them. Later the woman, after finding some people who had owed money to her husband, claimed the debt from them, which amounted to 63 coins. And then the sureties appeared before the emperor with the request that they should be paid back the money they had paid to the woman, invoking documentary evidence. And the emperor, as soon as he had learnt of the dispute, sent an order to the patrikios [i.e. Eustathios], who at that time held the office of mystikos, in which he wrote the following: ‘Two certain persons announced to me that they had stood surety to another person who owed money, and that after that person’s death they, along with that person’s wife, had been detained, and then they paid the rest [of the debt], thus fulfilling their obligation [arising from the surety agreement]. Later, the wife found some people who had owed money to her husband and she received a certain amount from them. Now your Imperial Majesty orders you to determine the total amount of money these people should take and what each of their individual shares should be, whether it should be the whole amount or less, as you see fit’. In accordance with the [emperor’s] order, then, he [Eustathios] awarded the woman 31 coins and the remaining 32 coins to two of the sureties, to be shared between them. Had the third surety been present, he would have awarded a share to him as well, yet he awarded that share to the woman because she had suffered many hardships and had been involved in many judicial disputes.

The details of this case are as follows: A certain man dies, owing the state a certain amount of money. The co-sureties who have provided suretyships for the whole of his debt are forced to pay a total of 48 gold coins since the man’s wife, who is the heir οf the principal debtor, has been left with nothing. Later, however, the wife discovers some people who had owed money to her husband and recovers a total of 63 coins from them. The co-sureties appeal to the emperor, as supreme judge, claiming a share of the 63 coins, which is the sum that they, together with the woman, had been forced to pay to the state the debts of her deceased husband⁵⁵. The case is referred to Eustathios, who initially divides the amount of money that had been guaranteed and paid to the state (i.e. 48 coins) into three equal shares, one for each of the co-sureties⁵⁶. In the end, however, he awards 32 coins to two of the co-sureties who are present at the trial (16 coins each), leaving 31 coins (16, the third surety’s share, and the remaning amount of 15 coins) to the debtor’s wife and heir, πονησάσῃ πολλὰ καὶ δικαστηρίοις ἐνασχοληθείσῃ. The favour which is shown to the debtor’s wife is described, most probably from the compiler of the Peira and not Eustathios himself, as an act of charity which is also due to the absence of one of the three co-sureties (εἰ γὰρ καὶ ὁ τρίτος τῶν ἐγγυητῶν περιῆν, τάχα ἂν κἀκείνῳ ἐπενεμήθη μερίς, ἣν ἀφῆκε τῇ γυναικὶ), who was the only one of the three co-sureties who did not appeal to the emperor.

This ruling by Eustathios is followed by another of his decisions, recorded in chapter 65.2 of the Peira:

Peira 65.2: Ὅτι ἐγγυήσατο ὁ κηρουλάριος τὸν ἀδελφὸν αὐτοῦ ἐπὶ τῇ προικί, ἥτις ἔσχεν αὐτὸν ἔνοχον ἐξ ἑτέρων αἰτιῶν, καὶ ἀπέλαβε κρίσει δικαστικῇ κτῆμα αὐτοῦ. προτέθεικεν ἡ γυνὴ τοῦ ἀδελφοῦ τοῦ κηρουλαρίου τὴν περὶ προικὸς ἀγωγήν, καὶ κακουργοῦντος τοῦ κηρουλαρίου ἐδόθη πάλιν τὸ κτῆμα ὡς ἀνδρῷον πρὸς αὐτήν. καὶ ὁ κηρουλάριος ἐζήτει ἀπογραφῆναι τὴν πᾶσαν περιουσίαν τοῦ ἀδελφοῦ καὶ ἐξετασθῆναι τὴν περὶ προικὸς δίκην. ὁ δὲ ἀνὴρ καὶ ἡ γυνὴ παραλαβόντες τὸ κτῆμα ἤρξαντο κακουργεῖν καὶ μὴ κινεῖν τὰ οἰκεῖα δίκαια καὶ τὴν περὶ προικὸς ἀγωγήν. καὶ ὁ μάγιστρος ἐσημειώσατο εἰπών· ἐπεὶ μετὰ τὴν λῆψιν τοῦ κτήματος κακουργοῦντες ἐφάνησαν, δεῖν ἔγνωμεν βοηθῆσαι τῷ ἐγγυητῇ καὶ τὸ κτῆμα παραδοῦναι πρὸς αὐτόν, ἕως ἂν ἡ γυνὴ γνώμην λάβῃ καὶ τῶν νόμων καὶ τῶν δικαίων τύχῃ, λογιζομένη μὲν ἅπερ δικαίως εἴληφε, ἐπιζητοῦσα δὲ τὰ λείποντα κατὰ τὴν τῶν νόμων ἀκρίβειαν. ὑπερτιθεμένης γὰρ αὐτῆς οὐ δίκαιόν ἐστι τὸν ἐγγυητὴν πολλὰ ἐποφειλόμενον, καὶ οὐ τοσοῦτον ὑπὲρ αὐτοῦ ὅσον ὑπὲρ τῆς γυναικὸς ἀξιοῦντα, μήτινος γοῦν ἀμύνης τυχεῖν.

Peira 65.2: Concerning the fact that Kerularios stood surety for his brother’s dowry property, and as his brother owed him money for other reasons, following a court ruling, he acquired a plot of land belonging to him. The wife of Kerularios’ brother brought an action for return of her dowry and because it was found that Kerularios had committed a crime, the plot of land was returned to her as her husband’s property. And Kerularios asked for an inventory to be made of all his brother’s property and for the dowry trial to take place. However, as soon as the man and woman had taken possession of the plot of land, they started to behave in an unlawful manner and not to seek their rights or to take action with regard to filing the dowry case. And the magistros noted: ‘As [the man and woman] clearly committed an injustice after taking possession of the plot of land, we believe that we should help the surety and hand the plot of land over to him until such time as the wife decides to enjoy her rights in accordance with the law, once she has thought about all that she has acquired in a just manner [from her dowry property] and has decided to seek the rest in accordance with the provisions of the law. For as she is taking a long time to do so, it is not right that the surety should be deprived of many things, or that he should have no protection while putting forward not so much his own claims as claims for the woman’.

The details of this case are as follows: A certain Kerularios had stood surety for the dowry that his brother had received, but as his brother owed him some money, following a court ruling, he acquired land from him which evidently formed part of his brother’s dowry property. However, the wife of Kerularios’ brother managed to secure the return of the land, in view of the prospect of filing a dowry case. Kerularios, who continued to act as a creditor for his brother, asked for an inventory of his brother’s property to be drawn up so that after the settlement he could receive satisfaction. However, since the woman and her husband, after taking back possession of the land, were procrastinating, Eustathios decided that the land should be placed back in the possession of the surety until the question of the dowry was settled and the property of the debtor husband was liquidated (ἕως ἂν ἡ γυνὴ γνώμην λάβῃ καὶ τῶν νόμων καὶ τῶν δικαίων τύχῃ, λογιζομένη μὲν ἅπερ δικαίως εἴληφε, ἐπιζητοῦσα δὲ τὰ λείποντα κατὰ τὴν τῶν νόμων ἀκρίβειαν). Eustathios judged that in this particular case, the surety’s interests were more deserving of protection, especially as the surety’s procedural actions served, albeit indirectly, to gain protection for the dotal property and consequently for the woman herself.

This passage is followed by Peira 65.3, which conveys a provision from the Basilica⁵⁷, which requires that the surety should expressly agree to assuming liability as surety, while Peira 65.4 seems to be a comment on the above provision and to clarify the difference between antiphonesis (which appears in the provision at 65.3) and suretyship⁵⁸. Peira 65.5 also conveys a ruling by Eustathios:

Peira 65.5: Ὅτι γήμας τὶς γυναῖκα ἐξ ἑτέρου ἀνδρὸς ἔχουσαν παῖδας, καὶ παραλαμβάνων τὰ πατρῷα τῶν παίδων, ἠκριβοῦτο παρὰ τῶν ἐπιτρόπων τοῦ προτέρου ἀνδρός, καὶ δέδωκεν ἐγγυητὰς τὸν ἀτζοκομήτην καὶ τὸν δερμοκαΐτην καὶ λοιπούς· εἶτα συνήφθη ἀνδρὶ εἰς γάμον ἡ προγόνη τοῦ δόντος τοὺς ἐγγυητὰς καὶ ἐπεζήτει τὰ πατρῷα. οἱ δὲ ἐγγυηταὶ δεδώκασι πρὸς αὐτὸν κτήματα ἐφ’ ᾧ κατέχειν ταῦτα καὶ νέμεσθαι, ἕως ἂν τὰ πατρῷα ἀπολάβῃ. καὶ μετὰ ταῦτα ὁ εἷς τῶν ἐγγυητῶν ὁ δερμοκαΐτης γαμβρὸν ἐπὶ θυγατρὶ ποιησάμενος τὸν τουπένην καὶ συμβουλευσάμενος παρεῖχε τὰ πατρῷα τῇ χρεωστουμένῃ γυναικὶ καὶ ἀνελάβοντο τὰ κτήματα. χρόνοις ὕστερον ἐξενικήθησαν τὰ κτήματα καὶ ἐκίνει ὁ κληρονόμος τοῦ δερμοκαΐτου κατὰ τοῦ λαμπροῦ τοῦ ἀνδρὸς τῆς ἀπολαβούσης τὰ πατρῷα, ἵνα ἐξ αὐτοῦ πάθῃ τὸ ἱκανόν. καὶ ἔκρινεν ὁ μάγιστρος, ὅτι εἴπερ ὁ λαμπρὸς κατέχων τὰ κτήματα ἐκνίκησιν τούτων ὑπέστη, τοὺς ἐγγυητὰς ὤφειλεν εὐθύνειν ἵνα ἀποδώσωσι πρὸς τὴν γυναῖκα αὐτοῦ τὰ πατρῷα· ὅς δὲ ἀγωγῇ ἰσχυρᾷ ὥπλιστο κατὰ τών ἐγγυητῶν ἤγουν κατὰ τοῦ δερμοκαΐτου καὶ τῶν λοιπῶν, οὐκ ἄν αὐτὸς ἀγωγῇ τῇ περὶ ἐκνικήσεως ὑποπεσεῖται. οὗτος γὰρ πατρῷα τῆς γυναικὸς ἀπειληφὼς τῷ δερμοκαΐτῃ τὰ κτήματα ἀπέδωκε, καὶ τοὺς ἐγγυητὰς τῆς ἐγγύης ἀπέλυσεν. ἔλεγον δὲ ὅτι ὁ λαμπρὸς λαμβάνων τὸ χρυσίον ἤγουν τὰ πατρῷα τῆς γυναικὸς πράσεις ἐξέθετο τῶν κτημάτων, ὅπερ οὐκ ἐδηλοῦτο σαφῶς·καὶ διὰ τοῦτο ἔγραψεν ὁ μάγιστρος·ἵνα γὰρ θείη τὶς ὅτι πρᾶσις ἐκτετέλεσται, οὐδ’ οὕτως ἔσχεν ἀγωγὴν ὁ δερμοκαΐτης κατὰ τοῦ λαμπροῦ ἐγγυησαμένου.

Peira 65.5: Concerning the case in which someone married a woman who had children by another husband, and once he had taken over the children’s paternal property, his property was valued by the epitropoi of the first husband and he secured Atzokometes, Dermokaites and others as sureties. Later, the stepdaughter of the man who had secured the suretyship [i.e. the second husband] got married, and she asked for her paternal property. The sureties gave her husband some estates for him to use until she could receive her paternal property. After this, one of the sureties, Dermokaites, married his daughter to Roupenes and, after consulting [some people] gave the paternal property to the woman to whom it was due [the second husband’s stepdaughter] and took back the estates. Some years later, by means of a court ruling, the estates were taken away from him by a third party, and Dermokaites’ heir brought an action against Lambros, the husband of the woman who had acquired the paternal property, in order to obtain compensation from him. And the magistros ruled that if indeed Lambros while having the estates and had them taken away from him, the sureties were still obliged to give his wife her paternal property. In other words, he was entitled to bring an action against the sureties, that is to say Dermokaites and the others, while he himself would not be affected by the eknikesis action (actio evictio) against him. He, however, had taken the paternal property and given back the estates to Dermokaites, thus freeing the sureties from their obligation to provide the guarantee. They claimed, however, that after Lambros had taken the money, that is his wife’s paternal property, he sold the estates, a fact, however, that was never proved. And for this reason the magistros [Eustathios] noted: ‘Even if it is assumed that a sale did take place, not even then would Dermokaites be entitled to bring an action against Lambros’.

According to the above, a certain man married a woman who had already born children from a previous marriage and, for an amount of money equal to the value of the children’s paternal property, a suretyship was provided by a number of people, including two individuals by the names of Atzokometes and Dermokaites. The importance of protecting the property of the under-age children is shown by the fact that more than one surety provided the suretyship, precisely in order to provide greater protection for it. When one of the children got married, she asked from the co-sureties, her stepfather having obviously died and/or his property not having been saved, for her share of the paternal property, apparently as her dotal property. The sureties, clearly subsequent to agreement with the groom-to-be, gave the stepdaughter’s husband estates (land) for him to use until she could take over her patrimonial property, presumably in accordance with the principle that the dotal property, though owned by the wife, was administered by the husband. Later, one of the co-sureties, Dermokaites, gave the stepdaughter her share of her patrimonial property and took back the estates which belonged to him and which he had provisionally granted to her husband. Βy doing so, his obligation as a surety towards the guarantee (the stepdaughter) ceased to exist. When, some years later, the ownership of these estates was lost, the surety’s heir brought an action against the stepdaughter’s husband, but his action was correctly dismissed by Eustathios as unfounded on the grounds that the surety was liable to the guarantee, and not vice versa.

5 The principles of accessoriness and subsidiarity of suretyships in the Peira

The most important characteristic of suretyships is their ancillary nature. In legal science ‘accessoriness’ is a term used to define a certain form of dependence of one right (the ancillary right) on another right (the main right). In other words, the accessory right does not exist in its own right but depends on the main right and is intended to reinforce it⁵⁹. An expression of the principle of accessoriness is that the surety is liable to pay only as much as the amount he is liable for under the terms of the suretyship agreement.

The main aim of the suretyship, which is primarily to secure the creditor’s claim and not to create another debtor for that creditor, is expressed by the principle of subsidiarity, which is a concept that goes hand in hand with that of the principle of accessoriness in the sphere of procedure. The creditor does not have the selective right to sue the sureties first, as the creditor can only resort to the sureties in a subsidiary manner⁶⁰. The essence of the principle of subsidiarity lies in the fact that the creditor must sue the principal debtor first before he can sue the sureties. Only if he is not satisfied by the principal debtor can the creditor bring an action against the surety, and only for the amount that the latter has stood surety for, in accordance with the principle of accessoriness.

In the sixty-fifth title of the Peira a number of provisions from the Basilica appear such as those at 65.6 relating to the delay (ὑπέρθεσις) in debtors’ payments, the resulting liability of the sureties and the interest on the money owed⁶¹. All of these provisions are in fact manifestations of the accessory character of the surety’s liability, as is the provision in B. 26,1,8 which forms the chapter 65.9 of the Peira⁶².

The principle of accessoriness is applied by Eustathios in two successive rulings which are to be found at the end of the sixty-fifth chapter of the Peira. The first of these rulings reads as follows:

Peira 65.15: Ὅτι ἐγγυήσατο ὁ υἱὸς τὸν αὐτοῦ πατέρα ὥστε διηνεκῶς καθυπηρετεῖν τοῦτον βασιλείῳ πατρικίῳ τῷ σκληρῷ, εἰ δὲ μή, ἐκτίσματι χρυσικῆς ποσότητος ἑαυτὸν ὑποτέθεικε. καὶ προσελθὼν τῷ μαγίστρῳ ἀπηλλάγη τῆς ἐνοχῆς, ψηφισαμένου ἐκείνου οὕτως· τὸ γεγονὸς ἐγγυητικὸν σύμφωνον, εἰ καὶ ἐκτίσματι χρυσικῆς ποσότητος ὠχύρωτο, πάντη παράνομον ἐτύγχανεν, ὡς μικροῦ τὴν ἐλευθερίαν ἀφῃρημένον τοῦ ἐγγυηθέντος. παρανόμου δὲ τοῦ συμφώνου ὄντος οὐδὲ ἡ γενομένη ἐπερώτησις κρατεῖ. ἔνθεν τῆς μὲν ἐγγύης ἠλευθέρωται, οἷα μηδὲ τὴν ἀρχὴν ἔνοχος γεγονώς· δεδικαίωται δὲ ἀπολαβεῖν καὶ ὅσα συστήσῃ νομίμως δικαιωθῆναι χάριν ὧν διῴκηκεν ὁ ἐγγυηθείς.

Peira 65.15: Concerning the case in which a son stood surety for his father so that he [his father] would constantly serve the patrician Basileios Skleros; if his father failed to do so, the son would himself pay an amount of gold coins as a penalty. And after the son came in front of the magistros [i.e. Eustathios Rhomaios], he was set free from his obligation, as the magistros ruled as follows: although the agreement by which the suretyship was given was enforced through a penalty of gold coins, it was completely illegal because it restricted excessively the freedom of the person for whom the suretyship was given. And since the agreement was illegal, the stipulation was also invalid. That is why he was free of the suretyship, because from the outset he had not been liable and, as a result of the legal evidence that he had produced, was entitled to recover what had been used in connection with the principal debtor’s activities.

It is evident from the discussion above that the surety can only be liable if the initial transaction between the creditor and the principal debtor is itself valid and legal. If, for any reason, the principal transaction is deemed invalid or illegal, then the surety is also free of any liability in accordance with the principle of the accessoriness. This was exactly what happened in the case discussed above where the agreement between Basileios Skleros⁶³ and the father of the ‘surety’ was deemed to be invalid on account of its highly exploitative character and therefore the son and father’s ‘surety’ was ruled not liable. In fact, it seems that the contract concluded between Skleros and the protospatharios’ father was considered so extremely unjust, or overwhelmingly one-sided in favor of Skleros who had the superior bargaining power, that it was deemed illegal as being contrary to good conscience and also involving the suretyship contact between the son and Skleros. It should, however, be noted that, regardless of the fact that the ruling discussed above is correct in terms of its final decision, the description of the agreement as a suretyship appears incorrect. It does not constitute a suretyship because the son undertakes his own separate, personal obligation to pay a particular sum of money in the event that his father fails to provide constant service to Basileios Skleros⁶⁴. Consequently, Eustathios (or more probably the anonymous compiler) wrongly considers the agreement to be a suretyship (ἐγγυήσατο ὁ υἱὸς τὸν αὐτοῦ πατέρα) and, therefore, this passage has been wrongly included in this chapter of the Peira.

A successful application of the principle of accessoriness of suretyships can be seen in the following ruling from the Peira:

Peira 65.16: Ὅτι δανείσας τὶς ἑτέρῳ νομίσματα ν’ ἔλαβεν ἐπὶ τούτοις καὶ ἐγγυητήν, εἶτα καὶ ἕτερα δανείσας αὐτῷ, καὶ κατὰ μέρος δανείζων καὶ ἀπολαμβάνων χρυσίον, τέλος ἀγνώμονος ἐπειράθη τοῦ χρεώστου. διὸ καὶ προσῆλθε τῷ μαγίστρῳ, καὶ ἀπορίας ἀναφανείσης τῷ χρεώστῃ ἐπειρᾶτο κατέχειν τὸν ἐγγυητήν. ὁ δὲ μάγιστρος ἐσημειώσατο οὕτως· τοῦ δὲ πράγματος ἠκριβωμένου διέγνωσται, ὡς ξ’ μὲν καὶ γ’ δεδάνεισται, καταβέβληται δ’ ἐκ τούτων κζ’, καὶ ἐπειρᾶτο ὁ δανειστὴς τὸν ἐγγυητὴν τὰ λϛ’ ἀπαιτεῖν. ἀλλ’ οὐκ ἔδοξεν εὐθὺς τοῦτο. ἐπὶ γὰρ μόνοις τοῖς ν΄ νομίσμασιν ὁ ἐγγυητὴς ἔνοχος γέγονε, καὶ εἰκότως ὅσα μετὰ τὴν ἐγγύην τῷ δανειστῇ παρεσχέθη, εἰς τὴν τῶν ν’ νομισμάτων ὁμολογίαν ἐδέχθη. οὐκοῦν ὑπεξαιρεθέντων τῶν κζ’ νομισμάτων ὁ ἐγγυητὴς εἰς κγ’ νομίσματα καταδεδίκασται. ἕξει δὲ ἀγωγὴν ὁ δανειστὴς εὑρίσκειν περιουσίαν τοῦ πρωτοτύπου, κἀκεῖθεν ἱκανοῦσθαι τὰ ιγ’ νομίσματα.

Peira 65.16: Concerning the case in which someone lent 50 gold coins to somebody else and for this loan he received a surety. Later, he lent some more coins to him, and after partly lending coins and partly being paid back, in the end, as the borrower had failed to pay the debt, he brought an action against him. For this reason, he appeared in front of the magistros [i.e. Eustathios] and after it had been proved that the borrower had no financial means, he brought an action against the surety. The magistros pronounced a judgment in this form: ‘After I had examined the case, it was proved that an amount of 63 coins had been lent and only 27 of them had been paid back and the creditor sued the surety for the remaining 36 coins. But he did not do well to claim them directly from him. For the guarantor was liable for only 50 gold coins, and subsequently all the coins given by the principal debtor after guarantees were provided these were included in the suretyship of 50 coins. Since the 27 coins have already been paid, the guarantor is legally obliged to pay 23 gold coins. The lender is entitled to bring an action against the principal debtor in order to seek satisfaction for the (remaining) 13 gold coins from his property’.

According to the above passage from the Peira, someone who had lent a total of 63 coins but had obtained a suretyship for only 50 of them⁶⁵ and had been paid back only 27 coins by the principal debtor, brought an action – which was unsuccessful – against the surety for the remaining 36 coins⁶⁶. The surety was finally ordered to pay only 23 coins, that is to say, the remainder from the total of 50 coins which he had originally stood surety for, while the creditor had to seek the remaining 13 coins exclusively from the property of the principal debtor.

What is of interest initially about the above case is that a suretyship was given for a certain amount (in our case 50 coins) but not from specific transactions. This probably relates to an agreement similar to guarantees of current account credit facilities, perhaps between merchants. In any case, this issue quite correctly did not appear to occupy Eustathios, since a suretyship can be drawn up also for a future and/or under conditions debt⁶⁷. Since the creditor, in accordance with the principle of subsidiarity, turns against the surety, Eustathios awards him 23 out of 36 according to the principle of accessoriness.

6 Conclusions

After having analysed the provisions in the Peira that relate to suretyships, I think it is now appropriate to draw a few conclusions. As a rule, Eustathios follows the law as laid down in the Basilica, to whose provisions he makes occasionally reference⁶⁸. In this sense, this is a confirmation of what has been claimed regarding the Byzantine conception of the function of the law⁶⁹. What is not confirmed is the predominance of rhetorical language, which has been stressed, perhaps excessively, by Simon⁷⁰. Neither is there any evidence in support of the view held by Oikonomides and Kazhdan that the law in the Peira is ‘innovative’ and ‘abortive’⁷¹. The law which is applied by Eustathios is basically the Roman law, as it has been transmitted in the Basilica, whose concepts he knows well and which he handles with ease. In this sense, the conclusions made by Sirks, are borne out⁷². Nevertheless, there are some misunderstandings in the Peira which are due to ignorance, such as in the case of the SCV and the intercessio, which in turn is due to the inadequate theoretical training of judges during the Byzantine era. What is uppermost in Eustathios’ thinking is the protection of those legal goods which he believes are deserving of even greater protection, such as, in the case of suretyships, the dotal property of women. This is something that perhaps we ought to bear in mind before we become too pessimistic about understanding Eustathios’ legal method⁷³. Still, before any final conclusions can be drawn about the way in which the law is applied in the Peira, more studies will have to be carried out on the subject.