De pigneraticia actione vel contra
(Concerning the action on pledge and the counter action.)
1 Ulpianus libro quadragensimo ad Sabinum. Pignus contrahitur non sola traditione, sed etiam nuda conventione, etsi non traditum est. 1Si igitur contractum sit pignus nuda conventione, videamus, an, si quis aurum ostenderit quasi pignori daturus et aes dederit, obligaverit aurum pignori: et consequens est ut aurum obligetur, non autem aes, quia in hoc non consenserint. 2Si quis tamen, cum aes pignori daret, adfirmavit hoc aurum esse et ita pignori dederit, videndum erit, an aes pignori obligaverit et numquid, quia in corpus consensum est, pignori esse videatur: quod magis est. tenebitur tamen pigneraticia contraria actione qui dedit, praeter stellionatum quem fecit.
1 Ulpianus, On Sabinus, Book XL. A pledge can be contracted not only by delivery, but also by mere agreement, even if no delivery is made. 1Let us therefore consider where a pledge has been contracted by mere agreement, whether, when anyone exhibits some gold as if he intended to deliver it by way of pledge, and he delivers brass, he will bind himself to pledge the gold? If follows that he will bind himself for the gold, but not for the brass, as the parties did not make an agreement with reference to the latter. 2However, where anyone when he delivers brass by way of pledge, states that it is gold, and gives it in pledge, it should be considered whether he does not make the brass a pledge, and whether as an agreement was made as to what was to be given, it may not be held to be pledged? This is the better opinion; still, the party who gave it will be liable to a counter action on pledge, without taking into account the fraud which he perpetrated.
2 Pomponius libro sexto ad Sabinum. Si debitor rem pignori datam vendidit et tradidit tuque ei nummos credidisti, quos ille solvit ei creditori, cui pignus dederat, tibique cum eo convenit, ut ea res, quam iam vendiderat, pignori tibi esset, nihil te egisse constat, quia rem alienam pignori acceperis: ea enim ratione emptorem pignus liberatum habere coepisse neque ad rem pertinuisse, quod tua pecunia pignus sit liberatum.
2 Pomponius, On Sabinus, Book VI. Where a debtor sold and delivered property which he had pledged, and you lent him money which he paid to the creditor to whom he gave the pledge, and you entered into an agreement with him that the article which he had already sold should be pledged to you; it is established that your act is void, because you accepted in pledge property which belonged to another; for, according to this arrangement, the purchaser has come to have in his possession an article which has been released from the pledge; and it makes no difference that the property pledged was released by the use of your money.
3 Idem libro octavo decimo ad Sabinum. Si quasi recepturus a debitore tuo comminus pecuniam reddidisti ei pignus isque per fenestram id misit excepturo eo, quem de industria ad id posuerit, Labeo ait furti te agere cum debitore posse et ad exhibendum: et, si agente te contraria pigneraticia excipiat debitor de pignore sibi reddito, replicabitur de dolo et fraude, per quam nec redditum, sed per fallaciam ablatum id intellegitur.
3 The Same, On Sabinus, Book XVIII. When, having been assured by your debtor that you will receive the money he owes you immediately, you return him the property pledged, and he passes it out a window to some one whom he purposely stationed there to receive it; Labeo says that you can bring an action for theft, and also one for production against your debtor; and if you bring a counter action on pledge, and the debtor interposes an exception on the ground that the property pledged has been returned, a replication can be filed based on bad faith and fraud; since it is understood that the article was not returned but was removed by artifice.
4 Ulpianus libro quadragensimo primo ad Sabinum. Si convenit de distrahendo pignore sive ab initio sive postea, non tantum venditio valet, verum incipit emptor dominium rei habere. sed etsi non convenerit de distrahendo pignore, hoc tamen iure utimur, ut liceat distrahere, si modo non convenit, ne liceat. ubi vero convenit, ne distraheretur, creditor, si distraxerit, furti obligatur, nisi ei ter fuerit denuntiatum ut solvat et cessaverit.
4 Ulpianus, On Sabinus, Book XLI. Where an agreement is made with reference to the sale of the property pledged, either in the first place or afterwards; then, not only is the sale valid, but the purchaser immediately obtains the ownership of the property. But, although nothing was agreed upon with reference to the sale of the property pledged, still, the law is that it can be sold, provided no agreement was entered into preventing it; but if an agreement was made that it should not be sold, and the creditor then sells it, he will be liable to an action for theft, unless the debtor was thrice notified to make payment, and did not do so.
5 Pomponius libro nono decimo ad Sabinum. Idque iuris est, sive omnino fuerint pacti, ne veneat, sive in summa aut condicione aut loco contra pactionem factum sit.
5 Pomponius, On Sabinus, Book XIX. The same rule of law applies whether it was agreed that no sale should be made at all, or where something has been done in violation of the agreement, either with reference to the amount, the condition, or the place where the property was to be sold.
6 Idem libro trigensimo quinto ad Sabinum. Quamvis convenerit, ut fundum pigneraticium tibi vendere liceret, nihilo magis cogendus es vendere, licet solvendo non sit is qui pignus dederit, quia tua causa id caveatur. sed Atilicinus ex causa cogendum creditorem esse ad vendendum dicit: quid enim si multo minus sit quod debeatur et hodie pluris venire possit pignus quam postea? melius autem est dici eum, qui dederit pignus, posse vendere et accepta pecunia solvere id quod debeatur, ita tamen, ut creditor necessitatem habeat ostendere rem pigneratam, si mobilis sit, prius idonea cautela a debitore pro indemnitate ei praestanda. invitum enim creditorem cogi vendere satis inhumanum est. 1Si creditor pluris fundum pigneratum vendiderit, si id faeneret, usuram eius pecuniae praestare debet ei, qui dederit pignus: sed et si ipse usus sit ea pecunia, usuram praestari oportet. quod si eam depositam habuerit, usuras non debet.
6 The Same, On Sabinus, Book XXXV. Although an agreement may be entered into that you shall be at liberty to sell land which is pledged to you, nevertheless, you cannot be forced to sell it, although the person who gave it to you in pledge may be insolvent; because the security was given on your account. Atilicinus, however, says that where proper cause is shown, the creditor can be compelled to sell; for what if the amount which is due is much less than the value of the property pledged, and the latter can be sold at present for more than it will bring hereafter? It would be better, however, to say that the person who gave the pledge could sell it and pay what he owed when he has received the purchase-money; provided the creditor can be required to exhibit the property pledged, in case it is movable, if the debtor previously furnished him with sufficient security to indemnify him; for it would be oppressive for a creditor to be compelled to sell the property against his will. 1Where the creditor sells land which has been pledged with him for a larger amount than the debt, and lends the excess at interest, he must pay the interest received on this money to the party who gave him the pledge; and if he, himself, makes use of the excess he must also pay interest on the same; but if he retains it as a deposit, he will not be required to do so.
7 Paulus libro secundo sententiarum. Si autem tardius superfluum restituat creditor id quod apud eum depositum est, ex mora etiam usuras debitori hoc nomine praestare cogendus est.
7 Paulus, Sentences, Book II. Where a creditor, after the lapse of some time, restores the surplus, which he held on deposit, then, on account of his default, he should be compelled to pay the debtor interest on the same because of the delay.
8 Pomponius libro tricensimo quinto ad Sabinum. Si necessarias impensas fecerim in servum aut in fundum, quem pignoris causa acceperim, non tantum retentionem, sed etiam contrariam pigneraticiam actionem habebo: finge enim medicis, cum aegrotaret servus, dedisse me pecuniam et eum decessisse, item insulam fulsisse vel refecisse et postea deustam esse, nec habere quod possem retinere. 1Si pignori plura mancipia data sint, et quaedam certis pretiis ita vendiderit creditor ut evictionem eorum praestaret, et creditum suum habeat, reliqua mancipia potest retinere, donec ei caveatur, quod evictionis nomine promiserit, indemnem eum futurum. 2Si unus ex heredibus debitoris portionem suam solverit, tamen tota res pignori data venire poterit, quemadmodum si ipse debitor portionem solvisset. 3Si annua bima trima die triginta stipulatus acceperim pignus pactusque sim, ut nisi sua quaque die pecunia soluta esset, vendere eam mihi liceret, placet, antequam omnium pensionum dies veniret, non posse me pignus vendere, quia eis verbis omnes pensiones demonstrarentur: nec verum est sua quaque die non solutam pecuniam, antequam omnes dies venirent. sed omnibus pensionibus praeteritis, etiamsi una portio soluta non sit, pignus potest venire. sed si ita scriptum sit: ‘si qua pecunia sua die soluta non erit’, statim competit ei pacti conventio. 4De vendendo pignore in rem pactio concipienda est, ut omnes contineantur: sed et si creditoris dumtaxat persona fuerit comprehensa, etiam heres eius iure vendet, si nihil in contrarium actum est. 5Cum pignus ex pactione venire potest, non solum ob sortem non solutam venire poterit, sed ob cetera quoque, veluti usuras et quae in id impensa sunt.
8 Pomponius, On Sabinus, Book XXXV. If I incur some necessary expense on account of a slave or a tract of land which I received by way of pledge, I shall be entitled not only to retain the same, but also to bring a counter action on pledge; for suppose that the slave was ill, and I paid out money to physicians, and the slave died; or suppose that I propped up a building or repaired it, and afterwards it was destroyed by fire, and I had nothing which I could hold as a lien. 1Where several slaves are given in pledge, and the creditor sells some of them for a certain amount of money, with the understanding that he will guarantee their title to the purchaser, and he pays his debt with the proceeds; he can retain the remaining slaves until he has been furnished security that he will be indemnified with reference to what he promised the purchaser by way of guarantee of the title to the other slaves. 2Where one of the heirs of a debtor pays his share of the debt, the entire property given in pledge can still be sold, just as if the debtor himself had paid a portion of the debt. 3If I stipulate for payment at the end of one, two, and three years, and I receive a pledge, and agree that unless the money is paid at each of the times specified I shall have the right to sell the property pledged; it is settled that I cannot sell it before the day when all the sums are due; and this is the case because by these words all the payments are indicated, and it is not true that the money is not paid on each day appointed for it, until all the days have arrived. But when all the times for payment have passed, then, even if only one portion should not be paid, the property pledged can be sold. But where it was stated in writing, “That if any one payment should not be made on the day appointed for the same,” suit on the agreement can then be brought at once by the creditor. 4An agreement relating to the sale of property held in pledge should be drawn up in such a way that all the parties will be included in it; but if it only should have reference to the creditor himself, his heir also may legally sell the property, if nothing has been agreed upon to the contrary. 5Where a pledge can be sold on account of an agreement, this may be done not only on account of the unpaid principal, but also on account of other matters, as, for instance, interest and money expended on the property.
9 Ulpianus libro vicensimo octavo ad edictum. Si rem alienam mihi debitor pignori dedit aut malitiose in pignore versatus sit, dicendum est locum habere contrarium iudicium. 1Non tantum autem ob pecuniam, sed et ob aliam causam pignus dari potest, veluti si quis pignus alicui dederit, ut pro se fideiubeat. 2Proprie pignus dicimus, quod ad creditorem transit, hypothecam, cum non transit nec possessio ad creditorem. 3Omnis pecunia exsoluta esse debet aut eo nomine satisfactum esse, ut nascatur pigneraticia actio. satisfactum autem accipimus, quemadmodum voluit creditor, licet non sit solutum: sive aliis pignoribus sibi caveri voluit, ut ab hoc recedat, sive fideiussoribus sive reo dato sive pretio aliquo vel nuda conventione, nascitur pigneraticia actio. et generaliter dicendum erit, quotiens recedere voluit creditor a pignore, videri ei satisfactum, si ut ipse voluit sibi cavit, licet in hoc deceptus sit. 4Is quoque, qui rem alienam pignori dedit, soluta pecunia potest pigneraticia experiri. 5Qui ante solutionem egit pigneraticia, licet non recte egit, tamen, si offerat in iudicio pecuniam, debet rem pigneratam et quod sua interest consequi.
9 Ulpianus, On the Edict, Book XXVIII. Where a debtor has given me in pledge property belonging to another, or has acted in bad faith with reference to the pledge, it should be said that the counter action will lie. 1A pledge can not only be given on account of money, but also for any other matter; as, for example, where a party gives a pledge to another that he will become his surety. 2We properly designate as a pledge something which is delivered to the creditor; and where not even possession passes to the creditor we call it hypothecation. 3In order for the action on pledge to be applicable, all the money must have been paid, or satisfaction be given with reference to the same. We understand by “satisfaction,” such satisfaction as the creditor desires, even though no payment may be made; whether he wished that security should be given to him by other pledges so that he may relinquish the one he has, or by sureties, or by providing another debtor, or by the payment of money, or by mere agreement, the action on pledge will arise. And, generally speaking, whenever the creditor is willing to relinquish the pledge, it is considered to be satisfied if he has received such security as he wished, even though he may have been deceived with reference to it. 4Anyone who has given the property of another in pledge can proceed by an action on pledge, if the debt has been paid by him. 5Where a party brings the action on pledge before payment has been made, although he did not proceed properly in doing so, still, if he tenders the money in court, he has a right to recover the property pledged and his interest as well.
10 Gaius libro nono ad edictum provinciale. Quod si non solvere, sed alia ratione satisfacere paratus est, forte si expromissorem dare vult, nihil ei prodest.
10 Gaius, On the Provincial Edict, Book IX. But if he is ready not to pay but to give satisfaction in some other way, for instance, if he wishes to give another debtor in his stead, this will be of no advantage to him.
11 Ulpianus libro vicensimo octavo ad edictum. Solutum non videtur, si lis contestata cum debitore sit de ipso debito vel si fideiussor conventus fuerit. 1Novata autem debiti obligatio pignus peremit, nisi convenit, ut pignus repetatur. 2Si quasi daturus tibi pecuniam pignus accepero nec dedero, pigneraticia actione tenebor et nulla solutione facta: idemque et si accepto lata sit pecunia, vel condicio defecit, ob quam pignus contractum est, vel si pactum, cui standum est, de pecunia non petenda factum est. 3Si in sortem dumtaxat vel in usuras obstrictum est pignus, eo soluto propter quod obligatum est locum habet pigneraticia. sive autem usurae in stipulatum sint deductae sive non, si tamen pignus et in eas obligatum fuit, quamdiu quid ex his debetur, pigneraticia cessabit. alia causa est earum, quas quis supra licitum modum promisit: nam hae penitus illicitae sunt. 4Si creditori plures heredes exstiterint et uni ex his pars eius solvatur, non debent ceteri heredes creditoris iniuria adfici, sed possunt totum fundum vendere oblato debitori eo, quod coheredi eorum solvit: quae sententia non est sine ratione. 5Solutam autem pecuniam accipiendum non solum, si ipsi, cui obligata res est, sed et si alii sit soluta voluntate eius, vel ei cui heres exstitit, vel procuratori eius, vel servo pecuniis exigendis praeposito. unde si domum conduxeris et eius partem mihi locaveris egoque locatori tuo pensionem solvero, pigneraticia adversus te potero experiri (nam Iulianus scribit solvi ei posse): et si partem tibi, partem ei solvero, tantundem erit dicendum. plane in eam dumtaxat summam invecta mea et illata tenebuntur, in quam cenaculum conduxi: non enim credibile est hoc convenisse, ut ad universam pensionem insulae frivola mea tenebuntur. videtur autem tacite et cum domino aedium hoc convenisse, ut non pactio cenacularii proficiat domino, sed sua propria. 6Per liberam autem personam pignoris obligatio nobis non adquiritur, adeo ut ne per procuratorem plerumque vel tutorem adquiratur: et ideo ipsi actione pigneraticia convenientur. sed nec mutat, quod constitutum est ab imperatore nostro posse per liberam personam possessionem adquiri: nam hoc eo pertinebit, ut possimus pignoris nobis obligati possessionem per procuratorem vel tutorem adprehendere, ipsam autem obligationem libera persona nobis non semper adquiret. 7Sed si procurator meus vel tutor rem pignori dederit, ipse agere pigneraticia poterit: quod in procuratore ita procedit, si ei mandatum [ed. maior fuit] <ed. minor fuerit> pignori dare.
11 Ulpianus, On the Edict, Book XXVIII. It is not considered to be payment where issue is joined with the debtor with reference to the debt, or where a surety is sued. 1Where the obligation of the debt is renewed, this destroys the pledge, unless it is agreed that the pledge shall be renewed. 2If I receive a pledge from you with the understanding that I shall pay you money, and I fail to pay it, I will be liable to an action on pledge; although no payment has been made. The same rule will apply where a receipt has been given for the money loaned, or the condition on account of which the pledge was given should not be fulfilled, or a lawful agreement has been entered into that no demand for the money shall be made. 3If the property was pledged only with reference to the principal or the interest, the action on pledge can be brought where the money with reference to which the property was encumbered has been paid. But whether the interest was expressly mentioned in the stipulation or not, if the property was pledged with reference to it also, the action on pledge will not lie so long as any of it is due. The case is different where a party has promised to pay interest above the lawful rate, for this is absolutely illegal. 4Where the creditor left several heirs, and one of them is paid his share, the other heirs of the creditor should not suffer any injury, but having offered to the debtor what he has paid to their co-heir, they can sell the entire property. This opinion is not unreasonable. 5The money is understood to be paid not only where it was given to the party to whom the property was pledged, but where it was paid with his consent to someone else, or to one whose heir he is or to his agent, or to a slave appointed for the collection of claims. Therefore, if you rent a house and lease a part of it to me, and I pay the rent to your lessor, I can proceed against you by an action on pledge; for Julianus says that he can be paid. And if I pay a part of the rent to you and a part to him, the same rule must be said to apply. It is evident that the property which I brought into the house will be liable only for the amount of the rent of my room, as it is incredible that an agreement should have been made that my effects of trifling value should be liable for the rent of the entire house. It is held to have been tacitly agreed upon with the owner of the premises that the contract of the proprietor of the lodging-house should not benefit the former but that his own agreement should. 6An obligation by pledge through a free person is not acquired by us; and to such an extent does this principle apply that it cannot be acquired through an agent or guardian, and therefore they themselves can be sued in an action on pledge. Nor is this changed by what was decreed by our Emperor, namely, that possession may be acquired through a free person; for this is only applicable in order to enable us to obtain possession of property which has been pledged to us, but a free person will not always acquire the obligation itself for us. 7Where, however, my agent or guardian gives property in pledge, he himself can bring the action on pledge, and this applies to an agent if he had already been directed to give a pledge:
12 Gaius libro nono ad edictum provinciale. vel universorum bonorum administratio ei permissa est ab eo, qui sub pignoribus solebat mutuas pecunias accipere.
12 Gaius, On the Provincial Edict, Book IX. Or if the management of the entire property or the party who was accustomed to borrow money on pledges has been entrusted to him.
13 Ulpianus libro trigensimo octavo ad edictum. Si, cum venderet creditor pignus, convenerit inter ipsum et emptorem, ut, si solverit debitor pecuniam pretii emptori, liceret ei recipere rem suam, scripsit Iulianus et est rescriptum ob hanc conventionem pigneraticiis actionibus teneri creditorem, ut debitori mandet ex vendito actionem adversus emptorem. sed et ipse debitor aut vindicare rem poterit aut in factum actione adversus emptorem agere. 1Venit autem in hac actione et dolus et culpa, ut in commodato: venit et custodia: vis maior non venit.
13 Ulpianus, On the Edict, Book XXXVIII. If, when a creditor was selling a pledge, an agreement was entered into between him and the purchaser that if the debtor should pay the purchase-money to the buyer, he shall be entitled to have his property returned; Julianus says it is also stated in a rescript that, on account of this agreement, the creditor is liable by the action on pledge to transfer to the debtor his action on sale against the purchaser. The debtor himself, however, can bring an action to recover the property, or one in factum against the purchaser. 1Both malice and negligence may be the subject of this action, as in the case of a loan for use. Safe-keeping also is included, but irresistible violence is not within its scope.
14 Paulus libro vicensimo nono ad edictum. Ea igitur, quae diligens pater familias in suis rebus praestare solet, a creditore exiguntur.
14 Paulus, On the Edict, Book XXIX. Therefore, the same diligence which a careful head of a household is accustomed to exercise in his own affairs is required of the creditor.
15 Ulpianus libro vicensimo octavo ad edictum. Creditor cum pignus reddit, de dolo debet debitori repromittere: et si praedium fuit pigneratum, et de iure eius repromittendum est, ne forte servitutes cessante uti creditore amissae sint.
15 Ulpianus, On the Edict, Book XXVIII. When the creditor returns the pledge he should give the debtor security against fraud, and if a tract of land was pledged, he must give him security with reference to his title, if servitudes happen to have been lost through the failure of the creditor to make use of them.
16 Paulus libro vicensimo nono ad edictum. Tutor lege non refragante si dederit rem pupilli pignori, tuendum erit, scilicet si in rem pupilli pecuniam accipiat. idem est et in curatore adulescentis vel furiosi. 1Contrariam pigneraticiam creditori actionem competere certum est: proinde si rem alienam vel alii pigneratam vel in publicum obligatam dedit, tenebitur, quamvis et stellionatus crimen committat. sed utrum ita demum, si scit, an et si ignoravit? et quantum ad crimen pertinet, excusat ignorantia: quantum ad contrarium iudicium, ignorantia eum non excusat, ut Marcellus libro sexto digestorum scribit. sed si sciens creditor accipiat vel alienum vel obligatum vel morbosum, contrarium ei non competit. 2Etiam vectigale praedium pignori dari potest: sed et superficiarium, quia hodie utiles actiones superficiariis dantur.
16 Paulus, On the Edict, Book XXIX. Where a guardian pledges the property of his ward without violation of the law, the pledge must be upheld; that is, if he receives the money for the benefit of the ward. The same rule applies in the case of the curator of a minor or insane person. 1It is certain that the creditor is entitled to a counter action on pledge. Hence, if the debtor gives property belonging to another, or which is pledged to a third party or to the State, he will be liable, although he is also guilty of the crime of swindling. Is this the case only where he is aware of the facts, or also where he was ignorant of them? So far as the offence is concerned, ignorance will be a sufficient excuse; but, with reference to the counter action, Marcellus states in the Sixth Book of the Digest that ignorance does not excuse him. When the creditor knowingly receives property which belongs to some one else, or is pledged to another, or which is damaged, a counter action will not lie in his favor. 2Even land subject to a perpetual lease can be pledged as well as that whose surface only is involved; because, at present, equitable actions are granted to parties in whom surface rights are vested.
17 Marcianus libro singulari ad formulam hypothecariam. Sane divi Severus et Antoninus rescribserunt, ut sine deminutione mercedis soli obligabitur.
17 Marcianus, On the Hypothecary Formula. The Divine Severus and Antoninus, however, stated in a Rescript that the pledge will be binding without affecting the rent of the land.
18 Paulus libro vicensimo nono ad edictum. Si convenerit, ut nomen debitoris mei pignori tibi sit, tuenda est a praetore haec conventio, ut et te in exigenda pecunia et debitorem adversus me, si cum eo experiar, tueatur. ergo si id nomen pecuniarium fuerit, exactam pecuniam tecum pensabis, si vero corporis alicuius, id quod acceperis erit tibi pignoris loco. 1Si nuda proprietas pignori data sit, usus fructus, qui postea adcreverit, pignori erit: eandem causa est alluvionis. 2Si fundus pigneratus venierit, manere causam pignoris, quia cum sua causa fundus transeat: sicut in partu ancillae, qui post venditionem natus sit. 3Si quis caverit, ut silva sibi pignori esset, navem ex ea materia factam non esse pignori Cassius ait, quia aliud sit materia, aliud navis: et ideo nominatim in dando pignore adiciendum esse ait: ‘quaeque ex silva facta natave sint’. 4Servus rem peculiarem si pignori dederit, tuendum est, si liberam peculii administrationem habuit: nam et alienare eas res potest.
18 Paulus, On the Edict, Book XXIX. If you and I have agreed that a claim against a debtor of mine shall be pledged to you, this agreement must be sustained by the Prætor, so that he will protect you if you bring suit for the money, and the debtor if I bring suit against him. Therefore, if the obligation was a pecuniary one, you must set off your claim against the money collected; but if it was for any specific property, whatever you receive you will retain instead of a pledge. 1If the mere ownership is pledged, an usufruct which subsequently accrues will be included to the pledge, and the same rule applies to alluvial deposits. 2If real-property which is pledged is sold, the condition of the pledge still remains, since the land passes together with what is connected with it; as, for instance, in the case of a child born of a female slave after the sale has been made. 3Where a party has provided that a wood shall be pledged to him, Cassius says that a ship built of this material cannot be pledged by this agreement, because the material is one thing, and the ship another, and therefore in giving the pledge it should be expressly added, “Whatever is made of or derived from this wood.” 4Where a slave pledges property belonging to his peculium, the transaction must be sustained if he had the free management of the peculium; for he can also alienate such property.
19 Marcianus libro singulari ad formulam hypothecariam. Eadem et de filio familias dicta intellegemus.
19 Marcianus, On the Hypothecary Formula. We must understand the same rules to apply to a son under paternal control.
20 Paulus libro vicensimo nono ad edictum. Aliena res pignori dari voluntate domini potest: sed et si ignorante eo data sit et ratum habuerit, pignus valebit. 1Si pluribus res simul pignori detur, aequalis omnium causa est. 2Si per creditorem stetit, quo minus ei solvatur, recte agitur pigneraticia. 3Interdum etsi soluta sit pecunia, tamen pigneraticia actio inhibenda est, veluti si creditor pignus suum emerit a debitore.
20 Paulus, On the Edict, Book XX. The property of a third party can be given in pledge with the consent of the owner; and if it is given without his knowledge, and he ratifies the act, the pledge will be valid. 1Where property is pledged to several persons at the same time, they all have an equal right. 2If the creditor is to blame for not being paid, the action on pledge can properly be brought. 3Sometimes, even if the money has been paid, the action on pledge should be refused; for example, if the creditor had bought his pledge from the debtor.
21 Idem libro sexto brevium. Domo pignori data et area eius tenebitur: est enim pars eius. et contra ius soli sequetur aedificium.
21 The Same, Abridgments, Book VI. Where a house is given in pledge, the site also is liable, for it is a part of the house; and, on the other hand, the right to the soil follows the building.
22 Ulpianus libro trigensimo ad edictum. Si pignore subrepto furti egerit creditor, totum, quidquid percepit, debito eum imputare Papinianus confitetur, et est verum, etiamsi culpa creditoris furtum factum sit. multo magis hoc erit dicendum in eo, quod ex condictione consecutus est. sed quod ipse debitor furti actione praestitit creditori vel condictione, an debito sit imputandum videamus: et quidem non oportere id ei restitui, quod ipse ex furti actione praestitit, peraeque relatum est et traditum, et ita Papinianus libro nono quaestionum ait. 1Idem Papinianus ait et si metus causa servum pigneratum debitori tradiderit, quem bona fide pignori acceperat: nam si egerit quod metus causa factum est et quadruplum sit consecutus, nihil neque restituet ex eo quod consecutus est nec debito imputabit. 2Si praedo rem pignori dederit, competit ei et de fructibus pigneraticia actio, quamvis ipse fructus suos non faciet (a praedone enim fructus et vindicari extantes possunt et consumpti condici): proderit igitur ei, quod creditor bona fide possessor fuit. 3Si post distractum pignus debitor, qui precario rogavit vel conduxit pignus, possessionem non restituat, contrario iudicio tenetur. 4Si creditor, cum venderet pignus, duplam promisit (nam usu hoc evenerat et conventus ob evictionem erat et condemnatus), an haberet regressum pigneraticiae contrariae actionis? et potest dici esse regressum, si modo sine dolo et culpa sic vendidit et ut pater familias diligens id gessit: si vero nullum emolumentum talis venditio attulit, sed tanti venderet, quanto vendere potuit, etiamsi haec non promisit, regressum non habere.
22 Ulpianus, On the Edict, Book XXX. Where a pledge has been stolen, and the creditor brings an action for theft, Papinianus is of the opinion that he must credit on the debt everything that he recovers; and this is correct, even though the theft was committed through the negligence of the creditor. Much more should this be held with reference to what he obtains by a suit for recovery. But let us consider whether what the debtor himself paid to the creditor under an action for theft or one for recovery shall be credited on the debt; and, indeed, it has been frequently stated and handed down that he is not required to restore to him what he himself has paid under an action for theft. Papinianus says the same thing in the Ninth Book of Questions. 1Papinianus also says that, where the creditor, actuated by fear, returned to the debtor a slave who had been pledged, and whom he had received in good faith for that purpose, the same rule applies; for if he institutes proceedings because he had done this on account of duress, and he recovers quadruple damages, he will not return anything out of what he obtained, nor shall he credit it upon the debt. 2If a thief gives property in pledge, an action on pledge as well as for the profits can be brought by him, although he cannot make the profit his own; for a thief can be sued not only for the profits of property which is in existence, but also for the recovery of the value of that which has been consumed; and therefore the fact that the creditor was a bona fide possessor will be an advantage to him. 3If, after the pledge has been sold, the debtor who obtained possession of the property by sufferance, or who leased it, does not relinquish possession, he will be liable to a counter action. 4Where a creditor, when he sold the property pledged, promised double damages (for this is customary, and having been sued in a case of eviction he had judgment rendered against him) would he have a right to a counter action on pledge? It may be said that he would have such a right, provided he made the sale without fraud or negligence, and transacted the business as the diligent head of a household should do. Where, however, a sale of this kind was, in no wise, profitable, but the party sold it for as much as he could have obtained even if he had not given the promise, he cannot have recourse to this action.
23 Tryphoninus libro octavo disputationum. Nec enim amplius a debitore quam debiti summa consequi poterit. sed si stipulatio usurarum fuerat et post quinquennium forte, quam pretium ex re obligata victus eam emptori restituit, etiam medii temporis usuras a debitore petere potest, quia nihil ei solutum esse, ut auferri non possit, palam factum est: sed si simplum praestitit, doli exceptione repellendus erit ab usurarum petitione, quia habuit usum pecuniae pretii, quod ab emptore acceperat.
23 Tryphoninus, Disputations, Book VIII. For he will not be able to recover from the debtor more than the amount of the debt. If, however, there had been an agreement for interest, and, five years, for instance, after having received the price of the property pledged the creditor, having lost his case, makes restitution to the purchaser, he can recover from the debtor interest for the intermediate time, because it is evident that nothing has been paid to him in such a way that it cannot be deprived of it. Where, however, he has only paid the price received, he will be barred by an exception on the ground of fraud from a claim for interest, since he has had the use of the purchase-money which he received from the buyer.
24 Ulpianus libro trigensimo ad edictum. Eleganter apud me quaesitum est, si impetrasset creditor a Caesare, ut pignus possideret idque evictum esset, an habeat contrariam pigneraticiam. et videtur finita esse pignoris obligatio et a contractu recessum. immo utilis ex empto accommodata est, quemadmodum si pro soluto ei res data fuerit, ut in quantitatem debiti ei satisfiat vel in quantum eius intersit, et compensationem habere potest creditor, si forte pigneraticia vel ex alia causa cum eo agetur. 1Qui reprobos nummos solvit creditori, an habet pigneraticiam actionem quasi soluta pecunia, quaeritur: et constat neque pigneraticia eum agere neque liberari posse, quia reproba pecunia non liberat solventem, reprobis videlicet nummis reddendis. 2Si vendiderit quidem creditor pignus pluris quam debitum erat, nondum autem pretium ab emptore exegerit, an pigneraticio iudicio conveniri possit ad superfluum reddendum, an vero vel exspectare debeat, quoad emptor solvat, vel suscipere actiones adversus emptorem? et arbitror non esse urguendum ad solutionem creditorem, sed aut exspectare debere debitorem aut, si non exspectat, mandandas ei actiones adversus emptorem periculo tamen venditoris. quod si accepit iam pecuniam, superfluum reddit. 3In pigneraticio iudicio venit et si res pignori datas male tractavit creditor vel servos debilitavit. plane si pro maleficiis suis coercuit vel vinxit vel optulit praefecturae vel praesidi, dicendum est pigneraticia creditorem non teneri. quare si prostituit ancillam vel aliud improbatum facere coegit, ilico pignus ancillae solvitur.
24 Ulpianus, On the Edict, Book XXX. The nice question has been asked me; if the creditor has obtained from the Emperor a Decree that he shall have possession of the pledge, and has been deprived of it by a better title, will he have a right to a counter action on pledge? It seems to me that the obligation growing out of the pledge is terminated, and that there is a withdrawal from the contract; nay more, there is an equitable action arising from the purchase of which he can avail himself, just as if the property had been given up to him by way of payment, so as to satisfy him for the amount of the debt or of the interest he had in the matter; and the creditor would be entitled to a set-off, if an action on pledge, or one based on any other ground, should be brought against him. 1The question arises whether anyone who has paid the creditor in counterfeit money can bring the action on pledge, because the money has been paid? It is established that he cannot bring an action on pledge, nor will he be released from the debt because counterfeit money does not release the party who pays it; and, indeed, the money should be returned to him. 2Where a creditor sells a pledge for more than was due, but has not yet recovered the price from the purchaser, can he be sued in an action on pledge for payment of the surplus? Or must the debtor wait until the purchaser pays, or have a transfer of the rights of action against the latter made to him? I am of the opinion that the creditor should not be compelled to make payment, but that the debtor should wait, or, if he does not do so, that the rights of action against the purchaser should be assigned to him, but at the risk of the vendor. Where, however, he has already received the money he must surrender the surplus. 3Where the creditor has maltreated property which was pledged or has injured slaves, this must be taken into consideration in the action on pledge. It is evident, however, that, if he has employed force against them on account of their bad behavior, or has placed them in chains, or has brought them before the Prefect or the Governor; it must be said that the creditor is not liable to the action on pledge, therefore, if he has prostituted a female slave, or compelled her to perform any other improper act, the pledge of this slave is at once released.
25 Idem libro trigensimo primo ad edictum. Si servos pigneratos artificiis instruxit creditor, si quidem iam imbutos vel voluntate debitoris, erit actio contraria: si vero nihil horum intercessit, si quidem artificiis necessariis, erit actio contraria, non tamen sic, ut cogatur servis carere pro quantitate sumptuum debitor. sicut enim neglegere creditorem dolus et culpa quam praestat non patitur, ita nec talem efficere rem pigneratam, ut gravis sit debitori ad reciperandum: puta saltum grandem pignori datum ab homine, qui vix luere potest, nedum excolere, tu acceptum pignori excoluisti sic, ut magni pretii faceres. alioquin non est aequum aut quaerere me alios creditores aut cogi distrahere quod velim receptum aut tibi paenuria coactum derelinquere. medie igitur haec a iudice erunt dispicienda, ut neque delicatus debitor neque onerosus creditor audiatur.
25 The Same, On the Edict, Book XXXI. Where a creditor has instructed pledged slaves in various trades, a counter action will lie if they have already acquired knowledge in these matters, or if the instruction was given with the consent of the debtor. But if neither of these was the case, and the trades were necessary, the counter action will lie, but not to the extent that the debtor will be compelled to lose the slaves on account of the amount of the expense; for, just as the creditor is not suffered to neglect the property through malice and negligence, so also he is not permitted to place what is pledged in such a condition that its recovery would be onerous to the debtor; as, for instance, where a large tract of land is given in pledge by a man who can hardly redeem it, and not even cultivate it, and you, having received it in pledge, cultivate it in such a way as to render it of great value; as, in fact, it is not just that I should be compelled to look for other creditors, or to sell what I wished to recover, or to leave it in your hands through the force of poverty. These matters should be considered by the judge, who should take a middle course, so as not to listen to the trifling objections of the debtor, or to the oppressive claims of the creditor.
26 Idem libro tertio disputationum. Non est mirum, si ex quacumque causa magistratus in possessionem aliquem miserit, pignus constitui, cum testamento quoque pignus constitui posse imperator noster cum patre saepissime rescripsit. 1Sciendum est, ubi iussu magistratus pignus constituitur, non alias constitui, nisi ventum fuerit in possessionem.
26 The Same, Disputations, Book III. There is nothing surprising that a pledge is created where, for any cause whatsoever, a magistrate places the party in possession; since our Emperor, together with his father, stated very frequently in Rescripts that a pledge can also be created by will. 1It should be remembered that where a pledge is created by order of a magistrate, this is not legally done until the property has actually come into possession.
27 Idem libro sexto opinionum. Petenti mutuam pecuniam creditori, cum prae manu debitor non haberet, species auri dedit, ut pignori apud alium creditorem poneret. si iam solutione liberatas receptasque eas is qui susceperat tenet, exhibere iubendus est: quod si etiam nunc apud creditorem creditoris sunt, voluntate domini nexae videntur, sed ut liberatae tradantur, domino earum propria actio adversus suum creditorem competit.
27 The Same, Opinions, Book VI. In the case where a creditor made a demand for money which had been loaned, and the debtor did not have the money on hand, he gave him certain articles of gold, in order that he might place them in pledge with another creditor. If the party who received them from the debtor holds them after they have been released by payment, he can be ordered to produce them; but if they are still in possession of the creditor, they are held to be liable with the consent of the owner; but the proper action can be brought by the owner of the property against his creditor to compel them to be delivered, as soon as they are released.
28 Iulianus libro undecimo digestorum. Si creditor, qui rem pignori acceperat, amissa eius possessione Serviana actione petierit et litis aestimationem consecutus sit, postea debitor eandem rem petens exceptione summovetur, nisi offerat ei debitor, quod pro eo solutum est. 1Si servus pro peculiari nomine pignus acceperit, actio pigneraticia adversus dominum debitori competit.
28 Julianus, Digest, Book XI. Where a creditor has received property in pledge and having lost possession of it proceeds by means of the Servian Action, and recovers damages; and the debtor afterwards brings suit for the same property, he will be barred by an exception, unless he offers him what was paid for it. 1Where a slave receives a pledge on account of his peculium, an action on pledge can be brought by the debtor against his master.
29 Idem libro quadragensimo quarto digestorum. Si rem alienam bona fide emeris et mihi pignori dederis ac precario rogaveris, deinde me dominus heredem instituerit, [ed. maior desinet] <ed. minor desinit> pignus esse et sola precarii rogatio supererit: idcirco usucapio tua interpellabitur.
29 The Same, Digest, Book XLIV. If you purchase the property of another in good faith, and give it to me in pledge, and request its return to be held by sufferance; and then the owner of said property appoints me his heir, it ceases to be a pledge, and merely the claim by sufferance will survive; and therefore your usucaption will be interrupted.
30 Paulus libro quinto epitomarum Alfeni Vari digestorum. Qui ratiario crediderat, cum ad diem pecunia non solveretur, ratem in flumine sua auctoritate detinuit: postea flumen crevit et ratem abstulit. si invito ratiario retinuisset, eius periculo ratem fuisse respondit: sed si debitor sua voluntate concessisset, ut retineret, culpam dumtaxat ei praestandam, non vim maiorem.
30 Paulus, Epitomes of the Digest of Alfenus Verus, Book V. A party who had lent money to the owner of a boat, detained the boat in the river on his own authority, as the money was not paid at the appointed time; and the river afterwards rose and carried away the boat. The opinion was that, if the creditor had retained the boat against the consent of the owner, the boat was at his risk; but if the debtor had voluntarily agreed that he should retain it, he should only be indemnified for negligence, and not for superior force.
31 Africanus libro octavo quaestionum. Si servus pignori datus creditori furtum faciat, liberum est debitori servum pro noxae deditione relinquere: quod si sciens furem pignori dederit, etsi paratus fuerit pro noxae dedito apud me relinquere, nihilo minus habiturum me pigneraticiam actionem, ut indemnem me praestet. eadem servanda esse Iulianus ait etiam cum depositus vel commodatus servus furtum faciat.
31 Africanus, Questions, Book VIII. Where a slave given in pledge commits a theft against the creditor, the debtor has a right to relinquish the slave by surrendering him for reparation. But if he gave him to me in pledge, knowing him to be a thief, although he may be ready to surrender him to me by way of reparation, I will, nevertheless, be entitled to an action on pledge, in order that I may be indemnified. Julianus says that the same rules must be observed where a slave is deposited or lent, and commits theft.
32 Marcianus libro quarto regularum. Cum debitore, qui alienam rem pignori dedit, potest creditor contraria pigneraticia agere, etsi solvendo debitor sit.
32 Marcianus, Rules, Book IV. A creditor can bring a counter action on pledge against a debtor who has pledged the property of another, even though the debtor may be solvent.
33 Idem libro singulari ad formulam hypothecariam. Si pecuniam debitor solverit, potest pigneraticia actione uti ad reciperandam ἀντίχρησιν·: nam cum pignus sit hoc verbo poterit uti.
33 The Same, On the Hypothecary Formula. Where a debtor has paid the money, he can make use of the action on pledge to recover property given in anmcrhoiV, for as there is a pledge he can make use of this term.
34 Marcellus libro singulari responsorum. Titius cum credidisset pecuniam Sempronio et ob eam pignus accepisset futurumque esset, ut distraheret eam creditor, quia pecunia non solveretur, petit a creditore, ut fundum certo pretio emptum haberet, et cum impetrasset, epistulam, qua se vendidisse fundum creditori significaret, emisit: quaero, an hanc venditionem debitor revocare possit offerendo sortem et usuras quae debentur. Marcellus respondit secundum ea quae proposita essent, revocare non posse.
34 Marcellus, Opinions. Where Titius lent money to Sempronius, and received a pledge for the same, and the creditor was about to sell the pledge because the money was not paid; the debtor requested him to purchase the land at a certain price, and, when he did so, he wrote a letter in which he intimated that he had sold the said land to the creditor. I wish to know whether the debtor can revoke this sale by tendering the principal and interest which are due? Marcellus answered that, according to the facts stated, he cannot revoke it.
35 Florentinus libro octavo institutionum. Cum et sortis nomine et usurarum aliquid debetur ab eo, qui sub pignoribus pecuniam debet, quidquid ex venditione pignorum recipiatur, primum usuris, quas iam tunc deberi constat, deinde si quid superest sorti accepto ferendum est: nec audiendus est debitor, si, cum parum idoneum se esse sciat, eligit, quo nomine exonerari pignus suum malit. 1Pignus manente proprietate debitoris solam possessionem transfert ad creditorem: potest tamen et precario et pro conducto debitor re sua uti.
35 Florentinus, Institutes, Book VIII. Where something is due on account of both principal and interest from a party who owes money secured by pledges, whatever is received from the sale of the pledges must be credited upon the interest, which it is established is due at the time, and then, if there is anything left it must be credited on the principal. A debtor should not be heard if, when he is well aware that he is hardly solvent, he desires to make a choice as to the claim on which he prefers the pledge to be released. 1A pledge only transfers possession to the creditor the ownership of the property remaining in the debtor; the latter, however, can make use of his property by sufferance and also under a lease.
36 Ulpianus libro undecimo ad edictum. Si quis in pignore pro auro aes subiecisset creditori, qualiter teneatur, quaesitum est. in qua specie rectissime Sabinus scribit, si quidem dato auro aes subiecisset, furti teneri: quod si in dando aes [ed. maior subiecisset] <ed. minor subiecissit>, turpiter fecisse, non furem esse. sed et hic puto pigneraticium iudicium locum habere, et ita Pomponius scribit. sed et extra ordinem stellionatus nomine plectetur, ut est saepissime rescriptum. 1Sed et si quis rem alienam mihi pignori dederit sciens prudensque vel si quis alii obligatam mihi obligavit nec me de hoc certioraverit, eodem crimine plectetur. plane si ea res ampla est et ad modicum aeris fuerit pignerata, dici debebit cessare non solum stellionatus crimen, sed etiam pigneraticiam et de dolo actionem, quasi in nullo captus sit, qui pignori secundo loco accepit.
36 Ulpianus, On the Edict, Book XI. The question arises how a person may be liable who delivers brass instead of gold to a creditor by way of pledge? Sabinus states most properly in this instance, that if, where gold has been given, the party substitutes brass, he is liable for theft; but if, when the gold was given, he substituted brass, he is guilty of a base act, but is not a thief. I think, however, that in this case also, the action of pledge will lie, and Pomponius says the same. Moreover he can be judicially punished on the ground of swindling, as has been very frequently set forth in rescripts. 1Again if anyone knowingly and deliberately gives me property in pledge which belongs to another, or if he encumbers to me property already encumbered to another, and does not inform me of the fact, he can be punished for the same offence. It is evident that, if the property is of considerable value, and is pledged only for a small sum of money, it must be said that the offence of swindling does not exist, and also that the actions on pledge and on fraud will not lie, because the party who received the property as a second pledge was not taken advantage of in any way.
37 Paulus libro quinto ad Plautium. Si pignus mihi traditum locassem domino, per locationem retineo possessionem, quia antequam conduceret debitor, non fuerit eius possessio, cum et animus mihi retinendi sit et conducenti non sit animus possessionem apiscendi.
37 Paulus, On Plautius, Book V. If I rent to the owner a pledge which was delivered to me I will retain possession of the same by renting it, because before the debtor leased it he did not have possession, while I have the intention of retaining it, and the party who leases it has not the intention of acquiring the same.
38 Modestinus libro primo differentiarum. Pupillo capienti pignus propter metum pigneraticiae actionis necessaria est tutoris auctoritas.
38 Modestinus, Differences, Book I. The authority of a guardian is necessary to a ward who receives property in pledge, on account of the danger of an action on pledge.
39 Idem libro quarto responsorum. Gaius Seius ob pecuniam mutuam fundum suum Lucio Titio pignori dedit: postea pactum inter eos factum est, ut creditor pignus suum in compensationem pecuniae suae certo tempore possideret: verum ante expletum tempus creditor cum suprema sua ordinaret, testamento cavit, ut alter ex filiis suis haberet eum fundum et addidit ‘quem de Lucio Titio emi’, cum non emisset: hoc testamentum inter ceteros signavit et Gaius Seius, qui fuit debitor. quaero, an ex hoc quod signavit praeiudicium aliquod sibi fecerit, cum nullum instrumentum venditionis proferatur, sed solum pactum, ut creditor certi temporis fructus caperet. Herennius Modestinus respondit contractui pignoris non obesse, quod debitor testamentum creditoris, in quo se emisse pignus expressit, signasse proponitur.
39 The Same, Opinions, Book IV. Gaius Seius gave his land to Lucius Titius as a pledge for money loaned, and afterwards it was agreed between them that the creditor should have possession of the pledge for a certain time, by way of setoff against his money. But, before the time had expired, the creditor, in stating his last wish, provided by his will that one of his sons should have the said tract of land, and added, “which I bought of Lucius Titius,” while in fact he had not bought it. Gaius Seius, who was the debtor, along with others signed this will. I ask whether, by the fact that he signed it he prejudiced himself in any way, since no instrument evidencing the sale was produced, but only the agreement that the creditor should be entitled to the crops for a certain time? Herennius Modestinus answered that the contract of pledge was not affected because the debtor had signed the will of the creditor in which he stated that he had purchased the pledge.
40 Papinianus libro tertio responsorum. Debitor a creditore pignus quod dedit frustra emit, cum rei suae nulla emptio sit: nec si minoris emerit et pignus petat aut dominium vindicet, ei non totum debitum offerenti creditor possessionem restituere cogetur. 1Debitoris filius, qui manet in patris potestate, frustra pignus a creditore patris peculiaribus nummis comparat: et ideo si patronus debitoris contra tabulas eius possessionem acceperit, dominii partem optinebit: nam pecunia, quam filius ex re patris in pretium dedit, pignus liberatur. 2Soluta pecunia creditor possessionem pignoris, quae corporalis apud eum fuit, restituere debet nec quicquam amplius praestare cogitur. itaque si medio tempore pignus creditor pignori dederit, domino solvente pecuniam quam debuit secundi pignoris neque persecutio dabitur neque retentio relinquetur.
40 Papinianus, Opinions, Book III. A debtor cannot legally purchase a pledge which he has given to a creditor, because the purchase of one’s own property is void; for if he buys it for less than the amount of the claim and demands it, or brings suit for the ownership, the creditor is not obliged to restore possession to him unless he tenders payment of the entire debt. 1The son of a debtor, who is under the control of his father, cannot obtain possession of a pledge from a creditor with money belonging to his own peculium; and therefore if a patron of the debtor has obtained possession of the property of the estate contrary to the provisions of the will, he will acquire half of the ownership; for the pledge is released by the money which the son paid as a price out of the property belonging to his father. 2The money having been paid, the creditor should restore the possession of the pledge which was actually in his hands; nor can the debtor be compelled to pay anything more. Therefore, if the creditor has, in the meantime, himself given the pledge as security, and the owner of the same has paid the money which he owed, no action will be granted with reference to the second pledge, nor will the right of retention remain.
41 Paulus libro tertio quaestionum. Rem alienam pignori dedisti, deinde dominus rei eius esse coepisti: datur utilis actio pigneraticia creditori. non est idem dicendum, si ego Titio, qui rem meam obligaverat sine mea voluntate, heres extitero: hoc enim modo pignoris persecutio concedenda non est creditori, nec utique sufficit ad competendam utilem pigneraticiam actionem eundem esse dominum, qui etiam pecuniam debet. sed si convenisset de pignore, ut ex suo mendacio arguatur, improbe resistit, quo minus utilis actio moveatur.
41 Paulus, Questions, Book III. You gave the property of another in pledge, and afterwards you became the owner of the same; an equitable action on pledge is granted to the creditor. The same rule does not apply, if I become the heir of Titius who encumbered my property without my consent; for, under these circumstances, the right of recovery of the pledge is not granted the creditor; nor, by any means, is it sufficient, in order to render the equitable action on pledge applicable, that the owner should be the same party who also owes the money. But if he had agreed with respect to the pledge, so that his deceit can be established, he cannot properly resist the bringing of an equitable action against him.
42 Papinianus libro tertio responsorum. Creditor iudicio, quod de pignore dato proponitur, ut superfluum pretii cum usuris restituat, iure cogitur, nec audiendus erit, si velit emptorem delegare, cum in venditione, quae fit ex facto, suum creditor negotium gerat.
42 Ulpianus, Opinions, Book III. The creditor is legally bound to surrender the excess of the price together with interest, in an action brought relative to the giving of the pledge; and he should not be heard if he wishes to substitute the purchaser, since, in the sale, which is made in pursuance of an agreement, the creditor is transacting his own business.
43 Scaevola libro quinto digestorum. Locum purum pignori creditori obligavit eique instrumentum emptionis tradidit: et cum eum locum inaedificare vellet, mota sibi controversia a vicino de latitudine, quod alias probare non poterat, petit a creditore, ut instrumentum a se traditum auctoritatis exhiberet: quo non exhibente minorem locum aedificavit atque ita damnum passus est. quaesitum est, an, si creditor pecuniam petat vel pignus vindicet, doli exceptione posita iudex huius damni rationem habere debeat. respondit, si operam non dedisset, ut instrumenti facultate subducta debitor caperetur, posse debitorem pecunia soluta pigneraticia agere: opera autem in eo data tunc et ante pecuniam solutam in id quod interest cum creditore agi. 1Titius cum pecuniam mutuam accepit a Gaio Seio sub pignore culleorum: istos culleos cum Seius in horreo haberet, missus ex officio annonae centurio culleos ad annonam sustulit ac postea instantia Gaii Seii creditoris reciperati sunt: quaero, intertrituram, quae ex operis facta est, utrum Titius debitor an Seius creditor adgnosecere debeat. respondit secundum ea quae proponerentur ob id, quod eo nomine intertrimenti accidisset, non teneri.
43 Scævola, Digest, Book V. A party encumbered a vacant tract of land as security to a creditor, and delivered to him an instrument of purchase. When he desired to build on said land, a controversy arose with a neighbor with reference to the width of the tract, and, as he could not otherwise prove it, he requested the creditor to produce the title-deed which had been delivered by him, and, as he did not do so, he erected a smaller building, and in this way suffered damage. The question arose whether, if the creditor demands the money or brings an action for the recovery of the pledge, and an exception based on fraud is filed, the judge ought to take this damage into consideration? The answer was that if the creditor did not intend to impose upon the debtor by depriving him of the production of the instrument, the debtor could bring an action on pledge when the money was paid; but that if this was done intentionally, an action would lie against the creditor for the amount of his interest at that time, and before payment of the money. 1Titius received a loan of money from Gaius Seius under a pledge of leathern sacks; and while Seius had these sacks in his granary, a centurion, who was sent from the office of the commissary, took the sacks away to be used in the public service; and they were afterwards recovered at the instance of Gaius Seius, the creditor. I ask whether Titius, the debtor, or Seius, the creditor, should be responsible for the wear and tear resulting from their use? The answer is that, according to the facts stated, the creditor was not liable for damage resulting from the wear and tear of the sacks.