In scientific circles there is no common opinion concerning genesis of institute of an inconsistency. Some researchers make the countdown, starting from the norms of the most ancient right regulating exclusively a private responsibility of the poor debtor. So, according to S.A.Karelinoj, «it is impossible to underestimate and lose the sight of the archaic right when researching for genesis of the institute of inconsistency… As it allows… To reveal relationships of cause and effect at a substantiation of social and economic conditionality of institute of an inconsistency».
Other point of view which followed almost all, in particular, pre-revolutionary civilists , has been as expressed in G.F.Shershenevicha’s works as follows:« … In the right of the ancient people we vainly would search traces of that difficult institute to which the inconsistency institute is represented now… We do not find soil in expressing the basic thought characterizing the competitive right, — thoughts on the most uniform distribution of property means of the debtor between the persons having the right for them ». It is difficult to disagree with this point of view. Really, soil for occurrence of privately right inconsistency institute is the thought on the most uniform distribution of means of the debtor among the persons having the right on them. Preconditions to occurrence and development of such thought are, first, an execution direction on the property, instead of on the person, and, secondly, transition of process of execution of collecting under the control of state structures. While these preconditions are absent, it is impossible to speak both about existence of institute of an inconsistency, and about “genetic relation” ancient criminally-rules of law with the subsequent history of development of described institute.
The norms regulating private responsibility of the debtor before creditors, contained in the Roman Law of XII tables. it established the right of the creditor to turn into slavery of the poor debtor after an establishment of the fact of a debt (a judgment or a recognition of the debtor) and absence of payment by the last the debtor or by the third parties within 90 days. Personal disciplinary measures of a debt gradually have ceased to satisfy the requirements of a property , the law known as lex Poetelia in 326 s d.C. released the poor debtor from slavery in any cases if the last has not committed any crime.
Simultaneously with disappearance of institutes of personal execution the institute of property execution of requirements of creditors gradually developed. According to G.F.Shershenevicha, «only with an establishment of this system it is possible to see in the Roman right rudiments of modern competitive institute». Within the limits of procedure ‘missio in possessionem’ creditors were allowed to possess the property of the debtor (on purpose «supervision and gyardence»), and with absence within 30 days of satisfaction of requirements of creditors the property of the debtor was on sale in the debt account. Nevertheless even sale of property of the debtor did not break off his relations with the creditors. If subsequently he has got some property then it should pass again to creditors while the debt has not been extinguished completely. The privilege was established only by institute of ‘ cessio bonorum’, allowing the debtor to leave to himself the property necessary for his residing and livelihood.
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