PIGNUS
PIGNUS,
A thing is said to be pledged to a man
when it is made security to him for the satisfaction of some debt or
obligation due to him, the creditor acquiring a right in the thing pledged
available against third parties as well as against the pledger, though the
latter remains owner of the thing. Thus the right of pignus or pledge
belongs to the class of
jura in re alienâ.
The progress of the Roman law of pledge can be clearly traced. In the law of
the Twelve Tables there was no independent right of pledge as distinct from
a right of ownership, the only mode of giving security in early times being
by a transfer of Quiritarian ownership of the thing to the creditor by
mancipation or
in jure cessio, on condition of
its being re-conveyed when the debt was paid (
ut
remancipetur, in jure cedatur). [
FIDUCIA] The creditor who failed to re-convey when
the debt was paid might be sued by a personal action, called
actio fiduciae, for breach of faith; but as the
debtor had parted with the ownership of the thing, he had no real action
against third parties in respect of it. The first step in advance from this
clumsy contrivance of a conveyance and a re-conveyance was the establishment
of pignus, using this term in its strict sense: pignus was constituted by
the simple delivery of a thing to the creditor as security for his debt
without conveying the ownership of it to him. The creditor acquired by the
delivery legal possession of the thing, being protected by possessory
interdicts, but he had no real action (
actio in
rem) against third parties; moreover he could not dispose of the
pignus to obtain satisfaction of his claim, nor could he make use of it
while in his possession, but had simply a right of retention. It was a
common practice, however, for the parties to a pledge to make a condition,
called Lex Commissoria, by which, if the debt was not paid, the thing became
the property of the pledgee. It will be seen that this form of security was
less advantageous to a creditor than that of a conveyance with a fiducia,
and that, on the other hand, it did not interfere so much with the rights of
the debtor, since he remained owner of the pignus and was able to vindicate
it from any third party.
Ultimately the praetor made a great reform in the law of pledge by allowing a
pledge to be constituted by simple agreement (
nuda
conventio); thus making delivery a matter of option, and by
giving an
actio in rem to a pledgee without
depriving the pledger of his ownership. This change was first instituted to
enable a landlord to recover the property (
invecta
illata) of his farming tenant (
colonus）
which had been pledged to him for his rent (
pro
mercedibus fundi), the remedies for this purpose being the
interdictum Salvianum [
INTERDICTUM] and the
actio Serviana in rem. The latter remedy
was extended under the name of
actio
quasi-Serviana or
hypothecaria,
generally to creditors who had things pignerated or hypothecated to them,
whether by delivery or simple agreement. The creditor also acquired the
power of selling the thing pledged if his debt was not satisfied.
The term
pignus may signify generally a thing
pledged in any way, but in a strict sense it means a thing pledged by
delivery, hypotheca being the proper term for a thing pledged by mere
agreement (
Dig. 13,
7,
9.2; Isid.
Orig. 5, 25; see
also
Cic. Fam. 13.5. 6). Gaius (
Dig. 50,
16,
238) says that pignus is derived from pugnus
“quia quae pignori dantur, manu traduntur.” This is one of
several instances of the failure of the Roman jurists when they attempted
etymological explanation of words [
MUTUUM]. The element of pignus (pig) is contained in the word
pa[
n]
go (Gr.
πήγνυμι) and its cognate
forms.
Having traced the history of pledge, we proceed to give some account of the
law on the subject as it appears in Justinian's legislation. A right of
pledge or mortgage cannot arise or continue unless there is some principal
obligation to which it is accessory. The principal obligation may be of any
kind, as for money borrowed (
mutua pecunia), or
for dos, letting and hiring, mandate; it may be conditional or
unconditional, for part of a sum of money as well as for the whole (
Dig. 20,
1,
5). It could be one not enforceable by action, but only binding
naturaliter (
Dig.
20,
1,
14.1). [OBLIGATIO.] The amount for which a pledge was
security depended on the agreement: it might be for principal and interest
or for either; or it might comprehend principal and interest, and all costs
and expenses which the pledgee might be put to on account of the thing
pledged (
Dig. 13,
17,
8.25). Anything could be the object of pignus
which could be an object of commerce (
Dig. 20,
1,
9;
Dig. 20,
3, “quae res pignori vel
hypothecae datae obligari non possunt” ), movable as well as
immovable things, even things which are consumed by the use. It might be a
thing corporeal or incorporeal, a single thing or an entire property. If a
single thing was pledged, the thing with all its increase was the security,
as in the case of a piece of land increased by alluvio. If a shop (
taberna) was pledged, all the goods in it were
pledged; and if some of these were sold and others bought in, and the
pledger died, the pledgee's security was the shop and all that it contained
at the time of the pledger's death (
Dig. 20,
1,
34). If all a man's
property was pledged, the pledge comprehended also his future property,
unless such property was clearly excepted. A man might also pledge any claim
or demand that he had against another. It is to be noticed that the objects
of pledge were much extended by the establishment of the principle of
hypotheca, since previously only such property could be pledged as was
capable of delivery. The act of pledging required no particular form.
Nothing more was requisite to establish the validity of a pledge than proof
of the agreement
[p. 2.420]of the parties to it. It was
called
contractus pigneratitius when it was a case
of pignus; and
pactum hypothecae, when it was a
case of hypotheca: in the former case, as we have seen, delivery was
necessary. A man might also by his testament make a pignus (
Dig. 13,
7,
26). A man could only pledge a thing when he was the owner and
had full power of disposing of it. If a man pledged a thing which was not
his, he did not make the thing a pignus, but the creditor had the right of
bringing an actio Publiciana for its recovery, if the pledger could maintain
this action. If the pledger afterwards became owner of the thing, the pledge
became a valid one under certain circumstances (
Dig.
13,
7,
20;
20,
2,
5: cf. Windscheid,
Pandekten, 1.230).
A pignus might be created by law; that is, there was among the Romans an
implied hypothec (
tacita hypotheca, pignora tacite
contracta), which existed not by consent of the parties but by
rule of law (
ipso jure), in respect of
particular kinds of obligations (
Dig. 20,
2, “In quibus causis pignus vel hypotheca tacite
contrahitur” ). These hypothecae had either for their object some
particular things belonging to the debtor--special hypothec; or his entire
property, present and future--general hypothec.
The following are instances of special hypothecae:--1. The lessor of a
building or land not intended to be used for agricultural purposes had a
hypotheca, in respect of his claims arising out of the contract of hiring,
on everything which the lessee (
inquilinus）
brought upon the premises for constant use (
invecta et
illata). 2. The lessor of agricultural land had an hypotheca on the
farm as soon as they were collected by the lessee (
colonus) for claims arising from the lease (
Dig. 20,
2,
7;
19,
2,
24. From this rule of Roman law the old Scotch law of
hypothec seems to have been derived). 3. A person who lent money to repair a
ruinous house had an hypotheca on the house for the amount of his money
which had been laid out on such repair. (This hypothec was established by a
senatusconsultum under the Emperor Marcus.) 4. Pupilli had a hypotheca on
things which were bought with their money, but not in their name.
(Constitution of Severus and Caracalla.) 5. A legatee had a hypothec on any
property which the person charged with the legacy had derived from the
estate of the testator.
The following are the cases of general hypothecae:--1. The fiscus had a
general hypotheca on the property of its debtors in respect of all claims
for penalties. (For the history of the law on this subject, see Dernburg, 1.
§ § 41, 43.) 2. The Emperor personally and the Empress on
goods of their debtors (
Dig. 49,
14,
6.1). 3. The husband on the
property of him who promised a dos. 4. The wife on the property of her
husband for recovery of dos and parapherna in her husband's possession, and
in respect of claims arising from
donatio propter
nuptias. 5. Minors and lunatics on the property of their
guardians. 6. Children under certain circumstances against the estates of
their father or mother (Windscheid,
Pandekten, 51.232). 7.
Churches on the property of their emphyteutic tenants for enforcing
liabilities on account of waste (Nov. 1, 100.3, 2).
Pignus might be created by a judicial sentence, as for instance by the decree
of the praetor giving to a creditor power to take possession of his debtor's
property (
missio creditoris in bona debitoris);
either a single thing or all his property, as the case might be. But the
permission or command of the magistratus did not effect a pledge, unless the
person actually took possession of the thing. The following are
instances:--The
immissio damni infecti causcs [
DAMNUM INFECTUM];
legatorum servandorum. causa, which had for
its object the securing of a legacy which had been left
sub conditione or
die (
Dig. 36,
4);
missio ventris nomine in possessionem, when the
pregnant widow was allowed to take possession of the inheritance for the
protection of a postumus. The right which a person obtained by such
immissio was called
pignus
praetorium. Pignus judiciale was when the judex ordered the
goods of a person to be taken as security for the satisfaction of a judgment
(
ex causa judicati).
The person who had given a pledge was still owner of the thing that was
pledged. He could therefore use the thing and enjoy its
fructus, if he had not given up possession. But the agreement
might be that the creditor should have the use or profit of the thing
instead of interest, which kind of contract was called
antichresis or mutual use: if there was no agreement as to use,
the creditor could not use the thing even if it was in his possession. The
pledger could also sell the thing pledged, unless there was some agreement
to the contrary, but such sale could not affect the right of the pledgee
(
Dig. 13,
7,
18.2). If the pledger sold and delivered a movable
thing that was pignerated or was specially hypothecated, without the
knowledge and consent of the creditor, he was guilty of furtum (
Dig. 20,
1,
13,
2;
47,
19,
6;
66,
4). If the pledger at the
time of a pignus being given was not the owner of a thing, but had the
possession of it, he could still acquire the property of the thing by
usucapion, while it was in the possession of the pledgee, for the pledging
was not an interruption of the usucapion [
POSSESSIO]. The pledgee might either have possession
of the thing from the first by delivery, or might have taken possession
subsequently on account of the default of the debtor. In either case he was
entitled to keep possession till his demand was fully satisfied. For the
purpose of obtaining possession of the pledge he had the actio hypothecaria
or actio quasi-Serviana against every person who was in possession of it;
his right to recover in this action was derived from the title of the person
who had pledged the thing to him. If a pledgee could not obtain possession
of the thing pledged, or was evicted on account of some defect in the title
of the pledger, his only remedy was a personal action against the latter. A
creditor who had a pignus had also a right to the
interdicta retinendae et recuperandae possessionis. [
INTERDICTUM]
A pledgee could pledge the thing that was pledged to him; that is, he could
transfer the pignus (
Dig. 20,
1,
13.2). In case his demand was not
satisfied at the time agreed on, the pledgee had a right to sell the thing
and pay himself out of the proceeds (
jus distrahendi sive
vendendi pignus). (
Dig. 20,
5; Cod. 8, 27, 28.) This power of sale might be
qualified by the terms of the agreement; but the creditor could
[p. 2.421]not be deprived of all power of sale, nor could he
be compelled to exercise his power of sale. Caius (2.64) illustrates the
proposition that a person who was not owner of a thing could in some cases
alienate it, by the example of the right of a pledgee to sell the thing
pledged; but he adds that the right of sale in this case may perhaps be
referred to the consent of the debtor or owner, who by entering into a
contract of pledge agreed that the pledgee should have such right. In case
of a sale the creditor, according to the later law, must give the debtor
three separate notices of his intention to sell; and after the last of such
notices, he must wait two years before he could legally make a sale. If
anything remained over after satisfying the creditor, it was his duty to
give it to the debtor; and if the price was insufficient to satisfy the
creditor's demand, his debtor was still debtor for the remainder. If no
purchaser at a reasonable price could be found, the creditor might become
the purchaser, but still the debtor had a right to redeem the thing within
two years on condition of fully satisfying the creditor (Cod. 8, 34, 3).
An agreement that a pledge should be forfeited in case the demand was not
paid at the time agreed on was originally very common; but it was declared
by Constantine, A.D. 326, to be illegal. [
COMMISSORIA LEX]
A pledgee who had acquired possession of a pignus was under an obligation to
restore it to the pledger on payment of the debt for which it had been
given; and up to that time he was bound to take such care of it as a careful
person would take. On paymn ent of the debt, he might be sued by the pledger
in a personal action called
actio pignoratitia, for
the restoration of the thing, and for any damage that it had sustained
through his neglect. The remedy of the pledgee against the pledger for his
proper costs and charges in respect of the pledge, and for any dolus or
culpa on the part of the pledger relating thereto, was by an
actio pignoratitia contracria.
If there were several creditors to whom a thing was pledged which was
insufficient to satisfy them all, he whose pledge was prior in time had a
preference over the rest ( “potior est in pignore qui prius credidit
pecuniam et accepit hypothecam,”
Dig. 20,
4,
11). There were some exceptions to this rule: for
instance, when a subsequent pledgee had lent his money to save the thing
pledged from destruction, he had a preference over a prior pledgee (
Dig. 20,
4, §
§ 5, 6). This rule has been adopted in the English law as to money
lent on ships and secured by bottomry bonds. Certain hypothecae had a
preference or priority (
privilegium) over all
other claims. Of these claimants, the Fiscus came first in respect of taxes
and contracts; then the wife in respect of her dos; and then those who had
been put to some expense in repairing or restoring a thing. In the case of
unprivileged creditors, the general rule, as already observed, was that
priority in time gave priority of right. But a hypotheca which could be
proved by a writing executed in a certain public form (
instrumentum publice confectum), or which was proved by the
signatures of three reputable persons (
instrumentum quasi
publice confectum), had a priority over all those which could
not be so proved. If several hypothecae of the same kind were of the same
date, he who was in possession of the thing had a priority. The creditor who
had for any reason the priority over the rest was entitled to be satisfied
to the full amount of his claim out of the proceeds of the thing pledged. A
subsequent creditor could obtain the rights of a prior creditor in several
ways. If he furnished the debtor with money to pay off the debt, on the
condition of standing in his place, and the money was actually paid to the
prior creditor, the subsequent creditor stepped into the place of the prior
creditor (
Dig. 20,
3,
3). Also if he purchased a thing on the condition that
the purchase money should go to satisfy a prior creditor, he thereby stepped
into his place. A subsequent creditor could also, without the consent either
of a prior creditor or of the debtor, pay off a prior creditor, and stand in
his place to the amount of the sum so paid. This arrangement, however, did
not affect the rights of an intermediate pledgee (Dig; 20, 4, 16).
The pledge was extinguished by a release of it on the part of the creditor,
also by the destruction of the thing, for the loss was the owner's; it was
also extinguished if the thing was changed so as no longer to be the same,
and not capable of being restored to its former state (
Dig. 13,
7,
18.3); further, it was extinguished by confusio--that is, when the
right of ownership and right of pledge were merged in the same person, and
lastly by a prescription of ten or twenty years under certain conditions.
（
Dig. 20; Cod. 8, 14-35; Gesterding,
Die
Lehre vore Pfandrecht, &c.; Sintenis,
Handbuch
des gemeinen Pfandrechts; Bachofen,
Das römische
Pfandrecht, &c.; Dernburg,
Das Pfandrecht nach
den Grundsäitzen des heutigen römischen
Rechts; Windscheid,
Pandekten, § 224,
&c.; Puchta,
Inst. i. § 246, &c.
There is an English treatise entitled
The Law of Pledges or Pawns as
it was in use among the Romans, &c., by John Ayliffe,
London, 1732, &c.)
[
E.A.W]
