Lending and Depositing under the Brehon Laws

The risks involved when taking out or granting a loan, or placing a deposit, are not unique to our modern time. Here I highlight some earlier attitudes towards risk under the Brehon Laws, long before banking and when the motivations for lending and depositing differed somewhat from today. Nonetheless, some of the narratives in the law tracts can still feel oddly familiar to our fundamental ways of thinking about risk.

This of course merits a heavy caveat to the effect that the Brehon Law tracts describe a world different from our own in many ways. For context, I firstly survey some high-level(!) aspects of society, currency and contracts in early Ireland according to the Brehon Laws.

Aspects of Society and Currency

Early Ireland has been described as ‘tribal, rural, hierarchical and familiar’ [1]. It was a pastoral mixed farming society with a dispersed, mostly settled [2], population across many túatha (‘petty kingdoms’). The ‘primary social, legal and economic unit’ [3] in the late 7th century was likely the derbfine (‘true kin’), comprising family groups headed by qualifying adult males descended from the same great-grandfather. Cattle farming, and especially dairy-herding, was a prominent activity, also influencing political relations. Cattle raiding was a regular power play, epitomised by the epic saga Táin Bó Cuáilgne (‘the Cattle Raid of Cooley’) [4].

Early Ireland had its own currency, albeit performing somewhat different functions from the ‘money’ we are familiar with today. There seems to have been no indigenous coinage [5] before the Vikings and the technical makeup of the early Irish currency system was complex. Suffice to say that cattle, particularly cows, were a touchstone of the system, in that they acted as both a key ‘standard’ and ‘means’ of payment. Other forms of payment included silver and possibly grain [6].

The currency’s main functions were to facilitate payments for legal penalties, to regulate particular relationships, and to quantify ‘honourprice’ (lóg n-enech) [7]. Honourprice was a status measure used to determine the level of fines due for illegal acts against certain people, the extent they could freely enter contracts etc. In these ways, the currency system underpinned a ‘prestige sphere’ [8] of socially-driven personal and property exchanges depending on individual status.

The law tracts do not suggest that the currency was a favoured medium for valuing and exchanging physical objects/‘goods’ [9] – direct transfers and exchanges of objects were probably the norm. Currency was not itself the ‘subject’ (as such) of loan and deposit contracts but could nonetheless come into play for any penalties or compensation that might arise, e.g. if an object was not returned on time (outlined later).

Contracts

The Brehon Laws detail a well-developed (mostly oral) law of contract, sharing many affinities with legal principles we would recognise today. Formalities (including witnessing), capacity to contract and exchange of entitlements (‘consideration’) were points of emphasis [10]. A law tract on Church and society (Córus Bésgnai) starkly warns [c]orus bescna. Coharragar acoraib bel. Arisbailedach in bith muna astatais cuir bel (‘[t]he arrangement of discipline, how is it secured? By contracts, for the world is chaotic if contracts were not held fast’) [11].

The main way in which contracts, including for (some) loans and deposits, were ‘held fast’ was via ‘sureties’. ‘Suretyship’ was a key mechanism for contract enforcement at a time when it was more difficult to compel people to court, the courts themselves operated more akin to arbitrations, and where the risk of violent dispute was higher. Many contracts were therefore subject to a sort of double-lock personal guarantee system under suretyship, usually provided by ‘enforcing’ (naidm) and ‘paying’ (ráth) sureties [12]. The law tract Di Astud Chor (‘On the Securing of Contracts’) warns: [b]áeth nech nad mbí naidm, na ráth… (‘[s]enseless [is] anyone [for] whom there is not enforcing surety, nor paying surety…’) [13]. These types of personal guarantors also had parallels in other ancient Indo-European legal systems [14].

In summary, if a person defaulted on a contract the naidm would first try and compel performance, by force if necessary. Failing that, the ráth entered the frame and provided a pledge to the creditor for whatever was due, plus a penalty. If the default continued, the ráth was required satisfy the contract from their own resources. From there, the situation could dangerously escalate for the defaulter as they would then face steep additional penalties, including for ‘disturbing’ the ráth. Mounting liabilities could potentially draw in the broader kin (kincogish – ‘kin liability’) or prompt the ráth to seize the defaulter’s property under a complex ‘distraint’ procedure (athgabál) [15].

Loans (ón or airliciud)

In early Irish law, the lending of items was regulated by a specific law tract, Cáin Ónae. Loans fell into broadly two categories – ón and airliciud. It seems the main difference between the two was that items lent under ón agreements could not be transferred or alienated to a third party. This was, however, permitted under an airliciud agreement. This type of loan may have often been for a commercial objective, e.g. an item borrowed for a profit-making purpose or to secure some other legal obligation with a third party, e.g. a pledge. A third party benefiting from an item (e.g. food) under an airliciud agreement could consume it, provided an equivalent type and amount was returned to the lender by the original borrower at the expiry of the loan [16].

In an ón, the original owner’s right to possession was not restored until an object had been physically returned (even if the loan was overdue), whereas in airliciud the lender’s right to ownership was reactivated from the moment the period of the loan expired [17]. It seems that ón loans could be enforced by sureties (for explanation see above). However, in the case of airliciud, it was necessary to fast against the borrower. This has been interpreted to mean that airliciud loans usually involved borrowers from the noble classes, due to the difficulty of enforcing contracts against nobles in the usual way given their high status [18].

If a loan was not returned on time, the lender was entitled to a penalty fee (formailt). In an ón loan, this was 33.33 per cent of the value of the loaned property. In an airliciud, it was 100 per cent. Some loans, particularly airliciud, attracted an additional honour-price payment if the late return of the property caused social embarrassment [19]. Examples in the law tracts include failure to return ‘a riding horse if wanted at the time’ and failure to return malt (for beer-making) ‘should a festival day happen at the time of payment’ [20].

If the parties to a loan agreed that interest (fuillem) would be payable, the interest level would depend on whether it was a loan of livestock or inanimate chattels. The rate of interest payable for livestock was based on their natural rate of increase. So the interest valuation of a cow’s annual produce (up to 7 years) was equivalent to one third (33.33 per cent) of the cow’s own value [21]. For inanimate chattels, 25 per cent per annum could be charged to reflect the profit (commaín) the lender could have made if they had retained the chattels [22]. Full interest was usually only payable where a lending contract had been secured by the surety (guarantor). However, for a loan involving noble, a promise to pay interest was enough because ‘his word is as good as his bond’ [23]. Loans could be fixed-term (fri airchenn) or callable (fri anairchenn) – branded as loans for which ‘time is not tied’ [24].

The more familiar aspect of the early Irish lending framework is how it operated along broadly two lines – the first was concerned with the risk profile of the borrower and the second with the risk profile of the activity. The most obvious modern parallels relate to risks of lending to a person with limited resources. Risky borrowers, irrespective of guarantees provided by ‘sureties’, included [25]:

• a man whom knots cannot reach because of his wretchedness: The reference to ‘knots’ here is possibly a nod to the process of seizing property under the Brehon Laws. So this may be warning against lending to a poor/insolvent person who has no property which could be seized in the event of default;
• borrowing by a “brewy” farmer whose property does not support him: The reference to ‘brewy’ here is likely to a class of early Irish ‘hospitaller’ (briugu). This basically seems to warn against lending to such persons whose status and/or property would be insufficient to satisfy the loan if they defaulted;
• borrowing where another declares that he would not repay it: This might simply be confirming the risk of lending where it had been indicated the loan would not be returned. Alternatively, the reference to ‘another’ could be situations where a borrower was identified by a third party as having ‘past form’ in not returning loans – maybe a word-of-mouth ‘credit register’!

The risks in lending to high-ranking persons were also clearly flagged in the law tracts, foreshadowing similar challenges with lending to political leaders in more modern times. They warned against ‘lending to a noble whom no knots can reach because of his noble rank’ and against lending to kings ‘because of the difficulty of suing the honour of a king’ [26]. Excessive lending in general, termed ‘much lending’, was also discouraged [27].

The other main lending risk in the Brehon Laws related to the purposes of a loan. Some of these lent objects (or their equivalents) could not be recovered unless guaranteed by sureties. Horses were key to transport, farming etc. and so they often crop up in this context. Examples included horses lent out for farm work and for military purposes, i.e. ‘the loan of a horse to plough, upon land, though he be hurt with them’ and ‘the loan of a horse in battle’. Lending to ‘a man who dies’ and a ‘loan of salt’ were other such examples. These were, as the law tracts poetically put it, ‘articles that die in the loan’ [28]. Kings could also exact a type of ‘mandatory loan’ (errech), e.g. by borrowing (and presumably later replacing) cattle to feed troops after a battle [29].

Deposits (aithne)

The Brehon Laws recognised the possibility that objects might be deposited with another person for safekeeping. In these situations, depositing and contractual ‘suretyship’ (outlined above) together combined to form a type of ad-hoc interpersonal deposit guarantee system.

The starting point was that most deposits had to be returned. Usually, if sureties were in place, the full deposit was due back or, if there were no sureties, an amount of compensation was expected [30]. Some types of deposits also had to be fully returned even if they were not guaranteed by sureties. These included objects deposited in early (but probably not especially secure!) versions of safe deposit boxes, referred to in the law tracts as ‘a deposit that a good bolt protects’. Commentary explains this scenario as: ‘the thing that was deposited by…whom it belonged, so that it was seen afterwards in the house [of the safekeeper], viz., behind the door’ and ‘a key with somebody at all times’ [31].

Special formalities could also fully protect a deposit without sureties. One example was a ‘verbal charge’. This seemed to depend on a standardised declaration, explained as a deposit which was ‘delivered with the words, “bring it at the time or the place I say”‘[32]. It would, however, be difficult or impossible to recover a deposit (or its replacement) where it was lost due to some extreme natural or human event, regardless of sureties. Examples included:

• ‘a deposit in a house which fire from heaven consumes’: The commentaries seem to pin this one on God, explained as ‘a flash or stream of fire from heaven, i.e. the lightening of God…’;
• ‘a deposit upon the sea’: This appears to be a scenario where an object was deposited on a boat (presumably for transport) and was lost at sea. However, in the commentaries the scribe suggests that compensation might still be owed in some situations, e.g. if the sailor deliberately steered the boat into a ‘tempest’ (bad storm) without the depositor’s authorisation;
• ‘a deposit carried off in flight from an army‘: An example the scribe gives here is a cow deposited with another person who then abandons it during a military invasion.

There were other technical exemptions from liability too, with a well-developed sense of ‘proportionality’. Consider the case of a deposited dog killed while training to hunt deer: ‘if it was agreed upon that he should be set at a particular deer, provided he was set at that deer, or at a deer equally as gentle as it, or more gentle than it, there is exemption from paying anything…’ [33].

The scribes’ commentaries also explain other ways in which a safekeeper could, apparently, avoid liability for losing deposits. Distinctions are made between liability for ‘neglect’ versus unavoidable loss of a deposit, as well as the depositor’s original knowledge of the riskiness of the storage place [34]. The safekeeper could, it is said, benefit from a type of ‘security for safety from liability’ if a deposited item was ‘lost’ etc. But it is not entirely clear from where that ‘security’ came. It could have been a partial or full liability waiver agreed from the outset between the depositor and safekeeper in particular (e.g. risky) circumstances, similar to someone accepting today that part of their deposit could be ‘at risk’.

Some concluding thoughts

It can be tempting to think of the risks in present-day lending and depositing as being quintessentially modern. However, the basic notion that such activities can be risky and should be subject to legal control is not unique to our time.

Early Irish socio-economic conditions must obviously be distinguished from today. The motivations and channels for lending and depositing were clearly somewhat different. Still, as early as the Brehon Laws we find risk-based analyses underlying these socially useful activities, as well as risk mitigation via ‘suretyship’. This perhaps demonstrates that the notion of ‘risk-based regulation’ is of a more ancient vintage in Ireland.

This article may be cited as J. Biggins, ‘Lending and Depositing under the Brehon Laws’, The Brehon Lawyer (February 2021).

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Sources used for this article

Commissioners for Publishing the Ancient Laws and Institutes of Ireland, Uraicecht Becc and Certain Other Selected Brehon Law Tracts (volume 5) (Dublin, 1901) (‘AL5’)

D. A. Binchy, ‘Celtic Suretyship, A Fossilised Indo-European Institution?’ (1972) 7 Irish Jurist 360 (‘Binchy 1’)

D.A. Binchy, ‘Secular Institutions’ in Early Irish Society, ed. Miles Dillon (Dublin, 1954) (‘Binchy 2’)

Dáibhí Ó Cróinín, Early Medieval Ireland: 400-1200 (Routledge, 2017)

Eoin Neeson, The Imperishable Celtic Epic: An Táin (Prestige Books, 2004)

Fergus Kelly, A Guide to Early Irish Law (Dublin Institute for Advanced Studies, 2009)

Liam Breathnach, Córus Béscnai: An Old Irish Law Tract on the Church and Society (Dublin Institute for Advanced Studies, 2017)

Marilyn Gerriets, ‘Money in Early Christian Ireland according to the Irish Laws’ (1985) 27 Comparative Studies in History and Society 323

Neil McLeod, Early Irish Contract Law (Sydney Centre for Celtic Studies, 1992) (‘McLeod 1’)

Neil McLeod, Ón and airliciud: Loans in Medieval Irish Law in: Anders Ahlqvist, and Pamela OʼNeill (eds), Celts and their cultures at home and abroad: a Festschrift for Malcolm Broun, 15, Sydney: Celtic Studies Foundation, University of Sydney, 2013. 169–196. (‘McLeod 2’).

Endnotes

[1] Binchy 2, p. 54

[2] Ó Cróinín, p. 126

[3] Ó Cróinín, p. 159

[4] Neeson

[5] Kelly, p. 111-112

[6] Gerriets, pp. 335-336

[7] Gerriets, p. 328

[8] Gerriets, p. 338

[9] Gerriets, p. 328

[10] McLeod 1

[11] Breathnach, p. 123

[12] McLeod 1, p. 17

[13] McLeod 1, p. 15

[14] Binchy 1

[15] Binchy, p. 371

[16] McLeod 2, p. 189

[17] McLeod 2, p. 172

[18] McLeod 2, pp. 172-173

[19] McLeod 2, pp. 173-175

[20] AL5, p. 373

[21] McLeod 2, pp. 179-180

[22] McLeod 2, p. 181

[23] McLeod, p. 182

[24] AL5, p. 369

[25] AL5, p. 371, 373

[26] Kelly, p. 118

[27] AL5, p. 279

[28] AL5, p. 279

[29] Kelly, p. 119

[30] AL5, p. 191

[31] AL5, p. 197

[32] AL5, p. 197

[33] AL5, pp. 191-195

[34] AL5, p. 197