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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.)


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