Pignus
In Roman law, a pledge seized by a creditor, or given to him, to secure the performance of
an obligation.
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).