Зајам и залога у Јустинијановом закону као делу кодекса цара Стефана Душана
Loan and Pledge in Justinian's Law as Part of Emperor Dušan's Code

Summary/Abstract: Lending was a frequent legal act in the regions with a developed commercial and monetary economy in the Middle Ages. The taking of interest, the usual concomitant of loans, was looked upon disapprovingly already in the classical times. Persons who took interest were deprecated in later times, too, both in the countries of Catholic Europe and in Eastern Christendom, but in practice, interest was generally charged on loans. The pressure for liquid assets and credit, as well as the interests of the more advanced regions, demanded that the management of economic affairs should be based on the economic logic, and, consequently, usury was quite widespread in various covert forms. The legal framework within which various lucrative legal business activities were carried out in mediaeval Serbia was similar to that in the neighbouring countries. Money circulated in the usual way, through investment and credit operations. Loans were extended on the basis of contracts, and it was not possible to prohibit completely the charging of interest as a form of profit, although the practice was considered unbecoming a Christian. The questions of loans and taking of pledges were not regulated by detailed legal norms systematized in one place: provisions regarding them were scattered in various legal sources. One of them was Justinian's Law, the second part of the tripartite Code of Emperor Dušan in the manuscripts of the earlier redaction (15th-16th c.), and the first part of the bipartite Code in the manuscripts of the later redaction (16th-19th c.). The Serbian legal provisions called Justinian's Law were compiled mainly from various Byzantine legal documents. They regulated social relations in several legal spheres, so that they comprised civil and criminal law, as well as the judiciary procedure. Each of these spheres was covered by one or a few provisions only, which was far from adequate for practical application. They had a specific purpose, however, for they supplemented, rendered more precise or modified other provisions not included in the same text. In the manuscripts (8) of the earlier redaction the taking of pledges is regulated by Articles 26 and 27; the former prescribes the period of time within which it is possible to redeem the pledge, and the latter defines the responsibility of the creditor for the safekeeping of the pledge. Some earlier scholars argued that these articles were of Serbian origin. However, the present author suggests that the sources of these articles may have been Chapters 1 and 2, Section X of the Ecloga (726) of Emperor Leo III of Byzantium (707- 741). The small number of articles which regulate loans and pledges in Justinian's Law and in Dušan's Code can be explained by the fact there existed detailed provisions concerning these matters in the Byzantine legal texts which had been translated and adopted in Serbia. The Procheiron (the code of the Byzantin Emperor Basil II, 976-1025), which had been known in Serbia as a part of the Nomokanon of St Sava for 130 years, devotes as many as fourteen detailed chapters of its 16th section to loans and pledges. The Abbreviated Syntagma (a revised version of the code of Matija Vlastar from 1335), which was incorporated into Emperor Stefan Dušan's legislation, retained a large unabridged portion of Chapter 2, Section D of the Full Syntagma, which regulates loans and pledges. It may be concluded that Articles 26 and 27 were composed by the Serbian redactors of this compilation, and that they used the corresponding provisions and formulations of the text of the Ecloga as their model. These articles had a supplementary function, and they had to be fitted into the already existing regulation of the Procheiron and Matija Vlastar's Syntagma. The manuscripts of the later redaction (12) of Justinian's Law retain, with some additions and modifications, the texts of both articles.

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