Harry Thurston Peck, Harpers Dictionary of Classical Antiquities (1898)

Pignus

I. If given, a contractual relation exists between the pledgor and pledgee (pignori dans, accipiens). The pledgee is bound to restore the pledge when the debt is paid; the pledgor is bound to reimburse the pledgee for necessary outlays. The pledgee had originally no right except to hold the pledge until the debt was paid. Even when the debtor was in default, the creditor could not sell the pledge (pignus distrahere) unless this had been specially agreed. At a later period such an agreement was presumed, and in the final development of the Roman law an agreement that the pledge should not be sold had no effect except that the creditor, before selling, was obliged to give the debtor three warnings (denuntiationes) instead of one. In case the sum realized by the creditor exceeded the amount due him, he was bound to restore the surplus (superfluum, hyperocha) to the pledgor. The pledgee had no right to use the property pledged unless this was specially agreed. If the property yielded fructus (as was the case, for example, with land), and if, as was not uncommon, it was agreed that the creditor should appropriate the yield in lieu of interest on the debt, the contract was termed antichresis.

Originally, the pledgee had no right against third persons. His possession was indeed protected: but if he lost possession, he could not recover as against an honest conveyee or pledgee in possession. The only method of giving him such a right of recovery was to break loose from the conception of pignus and make him owner, with an understanding that when the debt was paid he should reconvey the property to the debtor. This form of pledge (which did not require delivery of possession) was termed fiducia (q. v.). Towards the close of the republican period, however, the law of pignus was so developed as to admit lien without conveyance of ownership or delivery of possession, and to give the pledgee a right of recovery as against third persons. The first step was to recognize that a landlord (locator fundi) might obtain, by contract, a lien (pignus) on all the chattels which his tenant (colonus) brought upon the farm (invecta et illata). When the tenant was in arrears with his rent, summary proceedings were devised to put the landlord in possession (interdictum Salvianum). The next step was to enable the landlord to follow up any such chattels as were removed from the farm. This was done by the actio Serviana. A form of pignus was thus developed which operated in rem, and therefore created a ius in re. The third and last step was to extend the new principle to all contractual pledges, with or without possession. This was done by the actio quasi Serviana. A similar form of lien had been developed in Greece; and at the time of Cicero the term hypotheca was being naturalized among the Romans, and in the early Empire the jurists spoke of the actio quasi Serviana seu hypothecaria. The terms pignus and hypotheca were thenceforth used interchangeably, although the more careful writers restricted pignus to the pledge in possession (which was most frequent in the case of movables) and hypotheca to the pledge without possession.

In the earlier civil law it is probable that only corporeal things could be given pignori. In the later development of the law it was possible to create a lien on almost any property right, even on a right of action or debt (pignus nominis). The right of the pledgee might itself be pledged (pignus pignoris). It was finally recognized that all the assets of an estate might be hypothecated.

Successive hypothecations of the same property were possible. As between the different pledgees, the general rule was prior potior.

II. Pledges might be seized without the consent of the owners. For the pignoris capio of certain favoured creditors in early Roman law, see Actio in the Appendix. For the power of the magistrates to enforce obedience to their commands by pignoris capio, see Magistratus. Out of the latter power was gradually developed the seizure of property to satisfy judgment (pignus in causa iudicati captum).