De pignoribus et hypothecis et qualiter ea contrahantur et de pactis eorum
(Concerning pledges and hypothecations and the manner in which they are contracted, and the agreements by which they are made.)
1 Papinianus libro undecimo responsorum. Conventio generalis in pignore dando bonorum vel postea quaesitorum recepta est: in speciem autem alienae rei collata conventione, si non fuit ei qui pignus dabat debita, postea debitori dominio quaesito difficilius creditori, qui non ignoravit alienum, utilis actio dabitur, sed facilior erit possidenti retentio. 1Servo pignori dato peculium eius creditor citra conventionem specialiter super eo conceptam frustra distrahit, nec interest, quando servus domino peculium adquisierat. 2Cum praedium pignori daretur, nominatim, ut fructus quoque pignori essent, convenit. eos consumptos bona fide emptor utili Serviana restituere non cogetur: pignoris etenim causam nec usucapione peremi placuit, quoniam quaestio pignoris ab intentione dominii separatur: quod in fructibus dissimile est, qui numquam debitoris fuerunt. 3Pacto placuit, ut ad diem usuris non solutis fructus hypothecarum usuris compensarentur fini legitimae usurae. quamvis exordio minores in stipulatum venerint, non esse tamen irritam conventionem placuit, cum ad diem minore faenore non soluto legitimae maiores usurae stipulanti recte promitti potuerunt. 4Cum praedium uxor viro donasset idque praedium vir pignori dedisset, post divortium mulier possessionem praedii sui reciperavit et idem praedium ob debitum viri pignori dedit. in ea dumtaxat pecunia recte pignus a muliere contractum apparuit, quam offerre viro debuit meliore praedio facto, scilicet si maiores sumptus quam fructus fuissent, quos vir ex praedio percepit: etenim in ea quantitate proprium mulier negotium gessisse, non alienum suscepisse videtur.
1 Papinianus, Opinions, Book XI. A general agreement in pledging property, even such as is afterwards obtained, is valid. In a case, however, where an agreement has been made with reference to property belonging to another which was not due to him who pledged it, but the ownership of it is afterwards acquired by the debtor, the creditor will hardly be entitled to an equitable action, if he was not ignorant that the property belonged to someone else, but the retention of the property in his possession will be the better mode of procedure. 1Where a slave is given by way of pledge, the creditor cannot sell his peculium, unless an agreement has been expressly entered into on this point. It makes no difference when the slave or his master acquired the peculium. 2Where a tract of land is given in pledge, and it is expressly agreed that the crops thereof shall also be pledged and a bona fide purchaser has consumed said crops, he cannot be compelled to restore them by an equitable action under the Lex Servia; for it is held that the lien of the pledge is not removed by usucaption, as the question of the pledge is distinct from the intention of the owner. The case is unlike the one involving the crops, since they never belonged to the debtor. 3It was agreed in a contract that, if interest on a debt was not paid when due, the crops of the property hypothecated should be set off against the interest, to the limit of that which was lawful. Although matters of less importance were included in the stipulation when it was made, it is held that the agreement is not void; since, if the lower rate of interest should not be paid at the appointed time, the parties could properly agree to pay more than the legal rate of interest. 4Where a woman had given a tract of land to her husband and he had pledged it, and after a divorce, the woman recovered possession of her land, and gave it in pledge to the creditor on account of the debt, in this instance the pledge seems to have been only properly made with reference to the money for which she was indebted to her husband for having improved the land; that is to say where he had incurred greater expense than the value of the crops which he had taken from it; for the woman is held only to have transacted her own business to that amount, and not to have undertaken to transact that of another.
2 Idem libro tertio responsorum. Fideiussor, qui pignora vel hypothecas suscepit atque ita pecunias solvit, si mandati agat vel cum eo agatur, exemplo creditoris etiam culpam aestimari oportet. ceterum iudicio, quod de pignore dato proponitur, conveniri non potest.
2 The Same, Opinions, Book III. Where a surety who has had pledges or mortgages assigned to him after he has paid a debt for money loaned, proceeds against the debtor by way of mandate, or brings suit against him on the ground of being his creditor; if he has been guilty of negligence with reference to the pledges, this must be taken into consideration. He cannot, however, sue him by means of the direct action on pledge.
3 Idem libro vicesimo quaestionum. Si superatus sit debitor, qui rem suam vindicabat, quod suam non probaret, aeque servanda erit creditori actio Serviana probanti res in bonis eo tempore, quo pignus contrahebatur, illius fuisse. sed et si victus sit debitor vindicans hereditatem, iudex actionis Servianae neglecta de hereditate dicta sententia pignoris causam inspicere debebit. atquin aliud in legatis et libertatibus dictum est, cum secundum eum, qui legitimam hereditatem vindicabat, sententia dicta est. sed creditor non bene legatariis per omnia comparatur, cum legata quidem aliter valere non possunt, quam si testamentum ratum esse constaret: enimvero fieri potest, ut et pignus recte sit acceptum nec tamen ab eo lis bene instituta. 1Per iniuriam victus apud iudicium rem quam petierat postea pignori obligavit: non plus habere creditor potest, quam habet qui pignus dedit. ergo summovebitur rei iudicatae exceptione, tametsi maxime nullam propriam qui vicit actionem exercere possit: non enim quid ille non habuit, sed quid in ea re quae pignori data est debitor habuerit, considerandum est.
3 The Same, Questions, Book XX. Where a debtor who brought suit for his property lost his case because he did not prove that the property belonged to him; the Servian Action will also be granted to the creditor where he proves that the This applied to all loans of personal property where the return was made in specie, otherwise it was a sale. Property was in the hands of the debtor at the time that the contract for the pledge was made. Where, however, the debtor who claimed an estate is defeated, the judge who presides in the Servian Action without paying attention to the decision rendered with reference to the estate, must examine the grounds on which the property was pledged. It is held to be different in cases which have reference to legacies and freedmen, where a decision is rendered in favor of him who claimed a lawful inheritance. Still, a creditor cannot properly be compared in every respect with a legatee, since legacies, in fact, are not valid unless the will is also decided to be so; for it may happen that a pledge may be properly taken, and the suit with reference to the same be improperly brought. 1A man who brought suit for the recovery of his property was defeated by an unjust decision, and afterwards pledged the property. The creditor cannot have any more right in this property than the party who gave it in pledge; therefore he will be barred by an exception on the ground that the case has already been disposed of, although the party who gained the case can by no means institute proceedings to recover what is not his own, for in this instance it must be taken into consideration not what he did not have, but what right the debtor would have in the property pledged.
4 Gaius libro singulari de formula hypothecaria. Contrahitur hypotheca per pactum conventum, cum quis paciscatur, ut res eius propter aliquam obligationem sint hypothecae nomine obligatae: nec ad rem pertinet, quibus fit verbis, sicuti est et in his obligationibus quae consensu contrahuntur. et ideo et sine scriptura si convenit ut hypotheca sit et probari poterit, res obligata erit de qua conveniunt. fiunt enim de his scripturae, ut quod actum est per eas facilius probari poterit: et sine his autem valet quod actum est, si habeat probationem: sicut et nuptiae sunt, licet testationes in scriptis habitae non sunt.
4 Gaius, On the Hypothecary Formula. Hypothecation is contracted by means of an informal agreement, where a party consents that his property shall be encumbered under a mortgage on account of some obligation. It does not matter in what terms the agreement is stated, as is the case in obligations contracted by the consent of the parties; and hence, if it is agreed without an instrument in writing that property shall be hypothecated, and this can be proved, the property will be bound to the extent of the agreement. Documents are drawn up with reference to these matters to enable the intention of the parties to be the more easily established, and what was agreed to is valid without them if it can be proved, just as a marriage is valid although there may be no written evidence of the same.
5 Marcianus libro singulari ad formulam hypothecariam. Res hypothecae dari posse sciendum est pro quacumque obligatione, sive mutua pecunia datur sive dos, sive emptio vel venditio contrahatur vel etiam locatio conductio vel mandatum, et sive pura est obligatio vel in diem vel sub condicione, et sive in praesenti contractu sive etiam praecedat: sed et futurae obligationis nomine dari possunt: sed et non solvendae omnis pecuniae causa, verum etiam de parte eius: et vel pro civili obligatione vel honoraria vel tantum naturali. sed et in condicionali obligatione non alias obligantur, nisi condicio exstiterit. 1Inter pignus autem et hypothecam tantum nominis sonus differt. 2Dare autem quis hypothecam potest sive pro sua obligatione sive pro aliena.
5 Marcianus, On the Hypothecary Formula. It must be remembered that property can be hypothecated for any kind of an obligation whatsoever where money is lent, a dowry bestowed, a purchase or sale made, a leasing and hiring concluded, or a mandate given; also where the obligation is absolute, or where it is for a certain time, or under some condition, or where it is assumed in pursuance of an agreement, or to secure a present indebtedness, or one previously contracted. Property can also be hypothecated on account of an obligation to be contracted hereafter, it can be done not only to secure the payment of an entire sum of money but also only a portion of the same, and it is also available in civil or prætorian obligations, as well as in those which are merely natural. Hypothecation in a conditional obligation is not binding, however, unless the condition is complied with. 1The difference between a pledge and an hypothecation is only one of words. 2A party can hypothecate property not only for an obligation of his own, but also for that of another.
6 Ulpianus libro septuagesimo tertio ad edictum. Obligatione generali rerum, quas quis habuit habiturusve sit, ea non continebuntur, quae verisimile est quemquam specialiter obligaturum non fuisse. ut puta supellex, item vestis relinquenda est debitori, et ex mancipiis quae in eo usu habebit, ut certum sit eum pignori daturum non fuisse. proinde de ministeriis eius perquam ei necessariis vel quae ad affectionem eius pertineant
6 Ulpianus, On the Edict, Book LXXIII. By a general obligation, affecting all property which the party now has or may have hereafter, those things are not included which it is probable that one would not have been likely to especially encumber, as for instance, household goods. Clothing must also be left with the debtor, and among the slaves those which he uses so much that it is certain that he would not have given them in pledge, because their services are very necessary to him, or he values them on account of the affection which he entertains toward them.
7 Paulus libro sexagesimo octavo ad edictum. vel quae in usum cottidianum habentur Serviana non competit.
7 Paulus, On the Edict, Book LXVIII. The Servian Action is not available with reference to articles which are in daily use.
8 Ulpianus libro septuagesimo tertio ad edictum. Denique concubinam filios naturales alumnos constitit generali obligatione non contineri et si qua alia sunt huiusmodi ministeria.
8 Ulpianus, On the Edict, Book LXXV. Finally, it is settled that a concubine, natural children, and apprentices, or any other attendants of this kind, are not included in a general obligation.
9 Gaius libro nono ad edictum provinciale. Sed et quod ad eas res, quas eo tempore quo paciscebatur in bonis habuit, idem observari debet. 1Quod emptionem venditionemque recipit, etiam pignerationem recipere potest.
10 Ulpianus libro septuagesimo tertio ad edictum. Si debitor res suas duobus simul pignori obligaverit ita, ut utrique in solidum obligatae essent, singuli in solidum adversus extraneos Serviana utentur: inter ipsos autem si quaestio moveatur, possidentis meliorem esse condicionem: dabitur enim possidenti haec exceptio: ‘si non convenit, ut eadem res mihi quoque pignori esset’. si autem id actum fuerit, ut pro partibus res obligarentur, utilem actionem competere et inter ipsos et adversus extraneos, per quam dimidiam partis possessionem adprehendant singuli.
10 Ulpianus, On the Edict, Book LXXV. Where a debtor pledges his property to two persons at the same time, so that it is entirely bound to each of them, both can avail themselves of the Servian Action for the entire amount against other persons. When a dispute arises between them, the condition of the possessor is the better one, and he will be entitled to the exception, “You could have the property, if it had not been agreed that it should also be pledged to me.” If, however, it was the intention of the parties that the property should be encumbered to each one equally, an equitable action will lie as between themselves and against third parties, by means of which they each may obtain possession of half the property.
11 Marcianus libro singulari ad formulam hypothecariam. Si is qui bona rei publicae iure administrat mutuam pecuniam pro ea accipiat, potest rem eius obligare. 1Si ἀντίχρησις facta sit et in fundum aut in aedes aliquis inducatur, eo usque retinet possessionem pignoris loco, donec illi pecunia solvatur, cum in usuras fructus percipiat aut locando aut ipse percipiendo habitandoque: itaque si amiserit possessionem, solet in factum actione uti. 2Usus fructus an possit pignori hypothecaeve dari, quaesitum est, sive dominus proprietatis convenerit sive ille qui solum usum fructum habet. et scribit Papinianus libro undecimo responsorum tuendum creditorem et si velit cum creditore proprietarius agere ‘non esse ei ius uti frui invito se’, tali exceptione eum praetor tuebitur: ‘si non inter creditorem et eum ad quem usus fructus pertinet convenerit, ut usus fructus pignori sit’: nam et cum emptorem usus fructus tuetur praetor, cur non et creditorem tuebitur? eadem ratione et debitori obicietur exceptio. 3Iura praediorum urbanorum pignori dari non possunt: igitur nec convenire possunt, ut hypothecae sint.
11 Marcianus, On the Hypothecary Formula. Where he who has charge of property belonging to the government borrows money for it, he can encumber the property. 1Where an agreement is entered into that the use of whatever is pledged can be made by the creditor, and some one is placed in charge of the land or of the house, he can retain possession of the same instead of the pledge, until the money is paid to him; since he can take the profits instead of interest, either by leasing them, or by himself collecting them, or by occupying the premises. Hence, if he should lose possession of the property, it is customary to make use of an action in factum. 2The question arose whether an usufruct can be given by way of pledge or mortgage, if the owner of the property agrees to this, or only he who is entitled to the usufruct gives his consent? Papinianus, in the Eleventh Book of Opinions, says “that the creditor must be protected, and if the proprietor desires to institute proceedings against him to prevent his using the right of usufruct against his consent, the Prætor will protect him by an exception, if it had not been agreed between the creditor and the party to whom the usufruct belonged, that the usufruct should be pledged; for as the Prætor protects the purchaser of the usufruct, why should he not also protect the creditor?” On the same principle, an exception can be filed against the debtor. 3The servitudes of urban estates cannot be given in pledge, and therefore an agreement cannot be made for their hypothecation.
12 Paulus libro sexagesimo octavo ad edictum. Sed an viae itineris actus aquae ductus pignoris conventio locum habeat videndum esse Pomponius ait, ut talis pactio fiat, ut, quamdiu pecunia soluta non sit, eis servitutibus creditor utatur (scilicet si vicinum fundum habeat) et, si intra diem certum pecunia soluta non sit, vendere eas vicino liceat: quae sententia propter utilitatem contrahentium admittenda est.
12 Paulus, On the Edict, Book LXVIII. Pomponius says that it should be held that an agreement can be made to pledge a right of a pathway, and the right to drive cattle, or to conduct water in such terms that, if the money is not paid the creditor can make use of such servitudes, provided he has adjoining land; and if the money should not be paid within a certain time, he can sell said servitudes. This opinion should be adopted on account of its benefit to the contracting parties.
13 Marcianus libro singulari ad formulam hypothecariam. Grege pignori obligato quae postea nascuntur tenentur: sed et si prioribus capitibus decedentibus totus grex fuerit renovatus, pignori tenebitur. 1Statuliber quoque dari hypothecae poterit, licet condicione exsistente evanescat pignus. 2Cum pignori rem pigneratam accipi posse placuerit, quatenus utraque pecunia debetur, pignus secundo creditori tenetur et tam exceptio quam actio utilis ei danda est: quod si dominus solverit pecuniam, pignus quoque peremitur. sed potest dubitari, numquid creditori nummorum solutorum nomine utilis actio danda sit an non: quid enim, si res soluta fuerit? et verum est, quod Pomponius libro septimo ad edictum scribit, si quidem pecuniam debet is, cuius nomen pignori datum est, exacta ea creditorem secum pensaturum: si vero corpus is debuerit et solverit, pignoris loco futurum apud secundum creditorem. 3Et in superficiariis legitime consistere creditor potest adversus quemlibet possessorem, sive tantum pactum conventum de hypotheca intervenerit, sive etiam possessio tradita fuerit, deinde amissa sit. 4Etiamsi creditor iudicatum debitorem fecerit, hypotheca manet obligata, quia suas condiciones habet hypothecaria actio, id est si soluta est pecunia aut satisfactum est, quibus cessantibus tenet. et si cum defensore in personam egero, licet is mihi satisdederit et damnatus sit, aeque hypotheca manet obligata. multo magis ergo si in personam actum sit sive cum reo sive cum fideiussore sive cum utrisque pro parte, licet damnati sint, hypotheca manet obligata nec per hoc videtur satisfactum creditori, quod habet iudicati actionem. 5Si sub condicione debiti nomine obligata sit hypotheca, dicendum est ante condicionem non recte agi, cum nihil interim debeatur: sed si sub condicione debiti condicio venerit, rursus agere poterit. sed si praesens sit debitum, hypotheca vero sub condicione, et agatur ante condicionem hypothecaria, verum quidem est pecuniam solutam non esse, sed auferri hypothecam iniquum est: ideoque arbitrio iudicis cautiones interponendae sunt ‘si condicio exstiterit nec pecunia solvatur, restitui hypothecam, si in rerum natura sit.’ 6Propter usuras quoque si obligata sit hypotheca, usurae solvi debent: idem et in poena dicemus.
13 Marcianus, On the Hypothecary Formula. Where a flock is liable by way of pledge, any future increase of the same will also be liable. If, however, the entire flock should be renewed through the death of those previously pledged, it will still be liable as pledged. 1A slave who is to be free conditionally can be pledged, although the right to the pledge, as security, will be extinguished as soon as the condition is fulfilled. 2As it is held that property in pledge can also be encumbered by the creditor, so long as both debts are due the pledge will be bound to the second creditor, and an exception as well as an equitable action should be granted him. If, however, the owner should pay the debt, the pledge will also be released. It may be doubted, however, whether or not an equitable action should be granted to the creditor on the ground that money has been paid. For what if the obligation has been discharged? What Pomponius wrote in the Seventh Book of the Edict is correct, namely, that if he who gave the property in pledge owes money, after it has been collected he should pay his own creditor with it. If, however, he owed some article, and delivered it, it should remain with the second creditor by way of pledge. 3A creditor can lawfully claim whatever stands upon the surface of the land, against any possessor whomsoever; whether a mere informal agreement with reference to its encumbrance was entered into, or whether possession of it was delivered which was subsequently lost. 4Even if the creditor obtains a judgment against his debtor, the mortgage still continues to exist, because an hypothecary action has its own condition; that is to say, it remains effective where the money is not paid or security given. If I institute proceedings personally against the defender of an action, even though he may have given me security and lost his case, the hypothecation still remains in force. With much more reason, therefore, where proceedings are instituted personally either against the principal debtor, or against the surety, or against both together, even though judgment has been rendered against them, the hypothecary obligation still continues operative. By this it appears that the creditor has not been satisfied, because he has obtained a right of action on the judgment. 5Where property is conditionally encumbered on account of a debt, it must be held that proceedings cannot properly be brought before the condition has been fulfilled; since nothing is owing in the meantime. But where the condition upon which the debt is dependent arrives, if it had been contracted under a condition, the party can then bring suit. If, however, the debt is due immediately, and the hypothecation was made under a condition, and the creditor has brought the hypothecary action before the condition was fulfilled, it is, indeed, true that the money has not been paid, but it would be unjust for the lien to be released. Therefore, a bond should be executed by order of the court, providing that if the condition is fulfilled and the money is not paid, the property hypothecated should be given up, if it is in existence. 6If the hypothecation was made to secure the interest also, the interest should be paid. We say that the same rule applies with reference to a penalty.
14 Ulpianus libro septuagesimo tertio ad edictum. Quaesitum est, si nondum dies pensionis venit, an et medio tempore persequi pignora permittendum sit. et puto dandam pignoris persecutionem, quia interest mea: et ita Celsus scribit. 1Ex quibus casibus naturalis obligatio consistit, pignus perseverare constitit.
14 Ulpianus, On the Edict, Book LXXIII. The question arose whether it would be permitted, if the day of payment had not yet arrived, to take action with reference to the pledges? I think that permission to do this should be granted, because the party has an interest in doing so. Celsus also gives the same opinion. 1In those instances where a natural obligation exists, it is settled that the pledge remains encumbered.
15 Gaius libro singulari de formula hypothecaria. Et quae nondum sunt, futura tamen sunt, hypothecae dari possunt, ut fructus pendentes, partus ancillae, fetus pecorum et ea quae nascuntur sint hypothecae obligata: idque servandum est, sive dominus fundi convenerit aut de usu fructu aut de his quae nascuntur sive is, qui usum fructum habet, sicut Iulianus scribit. 1Quod dicitur creditorem probare debere, cum conveniebat, rem in bonis debitoris fuisse, ad eam conventionem pertinet, quae specialiter facta est, non ad illam, quae cottidie inseri solet cautionibus, ut specialiter rebus hypothecae nomine datis cetera etiam bona teneantur debitoris, quae nunc habet et quae postea adquisierit, perinde atque si specialiter hae res fuissent obligatae. 2Qui res suas iam obligaverint et alii secundo obligant creditori, ut effugiant periculum, quod solent pati qui saepius easdem res obligant, praedicere solent alii nulli rem obligatam esse quam forte Lucio Titio, ut in id quod excedit priorem obligationem res sit obligata, ut sit pignori hypothecaeve id quod pluris est: aut solidum, cum primo debito liberata res fuerit? de quo videndum est, utrum hoc ita se habeat, si et conveniat, an et si simpliciter convenerit de eo quod excedit ut sit hypothecae? et solida res inesse conventioni videtur, cum a primo creditore fuerit liberata, an adhuc pars? sed illud magis est, quod prius diximus.
15 Gaius, On the Hypothecary Formula. Property which is not yet in existence but which will come into existence hereafter, can be hypothecated, as for instance, fruits on the trees, the offspring of a female slave, the increase of flocks, and other things which may be produced, are subject to hypothecation. The same rule should be observed whether the owner of land makes an agreement either with reference to the usufruct of the same, or concerning anything which may come into existence thereon, or whether he who has the usufruct does so; as Julianus stated. 1When it is stated that the creditor must prove that the article in question was included in the effects of the debtor when the contract was made, this refers to an agreement expressly entered into, and not to the one which it is usual to insert into undertakings every day; namely, that where certain property has been specifically hypothecated, whatever else now remains in possession of the debtor, or whatever he may hereafter acquire, shall be liable; just as if the said property had been explicitly encumbered. 2Where parties who have already encumbered their property also bind themselves to a second creditor, in order that the risk may be avoided which those are accustomed to run who hypothecate the same thing several times, it is usual for them to provide that the property is hypothecated to no one else except Lucius Titius, for instance; and that it is liable to such an extent that the encumbrance will exceed the prior obligation, so that it will be pledged to the amount of the excess, or for the entire amount, when the property is released from the lien for the first debt. In this instance, it should be considered whether the property is thus encumbered if such an agreement has been made, or whether it has been simply agreed that only the surplus shall be subject to hypothecation. It is presumed that the entire property is included in the agreement after it has been released by the first creditor. Is there not still a portion of the same encumbered? The opinion which we have first stated is the better one.
16 Marcianus libro singulari ad formulam hypothecariam. Si fundus hypothecae datus sit, deinde alluvione maior factus est, totus obligabitur. 1Si nesciente domino res eius hypothecae data sit, deinde postea dominus ratum habuerit, dicendum est hoc ipsum, quod ratum habet, voluisse eum retro recurrere ratihabitionem ad illud tempus, quo convenit. voluntas autem fere eorum demum servabitur, qui et pignori dare possunt. 2Si res hypothecae data postea mutata fuerit, aeque hypothecaria actio competit, veluti de domo data hypothecae et horto facta: item si de loco convenit et domus facta sit: item de loco dato, deinde vineis in eo positis. 3In vindicatione pignoris quaeritur, an rem, de qua actum est, possideat is cum quo actum est. nam si non possideat nec dolo fecerit quo minus possideat, absolvi debet: si vero possideat et aut pecuniam solvat aut rem restituat, aeque absolvendus est: si vero neutrum horum faciat, condemnatio sequetur. sed si velit restituere nec possit (forte quod res abest et longe est vel in provinciis), solet cautionibus res explicari: nam si caveret se restituturum, absolvitur. sin vero dolo quidem desiit possidere, summa autem ope nisus non possit rem ipsam restituere, tanti condemnabitur, quanti actor in litem iuraverit, sicut in ceteris in rem actionibus: nam si tanti condemnatus esset, quantum deberetur, quid proderat in rem actio, cum et in personam agendo idem consequeretur? 4Interdum etiam de fructibus arbitrari debet iudex, ut, ex quo lis inchoata sit, ex eo tempore etiam fructibus condemnet. quid enim si minoris sit praedium, quam debetur? nam de antecedentibus fructibus nihil potest pronuntiare, nisi exstent et res non sufficit. 5Creditor hypothecam sibi per sententiam adiudicatam quemadmodum habiturus sit, quaeritur: nam dominium eius vidcicare non potest. sed hypothecaria agere potest, et si exceptio obicietur a possessore rei iudicatae, replicet: ‘si secundum me iudicatum non est’. 6Si pluris condemnatus sit debitor non restituendo pignus, quam computatio sortis et usurarum faciebat, an, si tantum solverit, quantum debebat, exoneretur hypotheca? quod ego quantum quidem ad suptilitatem legis et auctoritatem sententiae non probo: semel enim causa transire videtur ad condemnationem et inde pecunia deberi: sed humanius est non amplius eum, quam quod re vera debet, dando hypothecam liberare. 7Aliena res utiliter potest obligari sub condicione, si debitoris facta fuerit. 8Si duo pariter de hypotheca paciscantur, in quantum quisque obligatam hypothecam habeat, utrum pro quantitate debiti an pro partibus dimidiis, quaeritur. et magis est, ut pro quantitate debiti pignus habeant obligatum. sed uterque, si cum possessore agat, quemadmodum? utrum de parte quisque an de toto, quasi utrique in solidum res obligata sit? quod erit dicendum, si eodem die pignus utrique datum est separatim: sed si simul illi et illi, si hoc actum est, uterque recte in solidum aget, si minus, unusquisque pro parte. 9Potest ita fieri pignoris datio hypothecaeve, ut, si intra certum tempus non sit soluta pecunia, iure emptoris possideat rem iusto pretio tunc aestimandam: hoc enim casu videtur quodammodo condicionalis esse venditio. et ita divus Severus et Antoninus rescripserunt.
16 Marcianus, On the Hypothecary Formula. Where land which has been hypothecated is afterwards increased by an alluvial deposit, it is all liable. 1If property is hypothecated without the knowledge of the owner, and the latter afterwards ratifies the transaction, it must be held that what he ratified he intended to have a retroactive effect to the time of the agreement; but the wishes of those only will be observed who have a right to pledge the property. 2Where property is hypothecated, and its form is afterwards changed, an hypothecary action will still lie; just as where a house is hypothecated, and its site afterwards becomes a garden. The same rule applies where the agreement was made with reference to a vacant lot, and a house is subsequently built upon it; or where vines have been planted upon ground which was without them when it was hypothecated. 3The question is asked, where an action is brought for the recovery of a pledge, whether he who is sued is in possession of the property which is the subject of the action. For, if he is not in possession of it, and has not committed fraud to avoid being in possession, he should be discharged. If, however, he should be in possession, and either pays the debt, or surrenders the property, he should also be discharged, but if he does neither of these things, judgment should be rendered against him. Where he is willing to give it up, but cannot do so because it is not at hand, or is at a distance, or in a province, it is customary for security to be furnished, since, if the party should give security to deliver it, he will be discharged. But if he has ceased to hold possession through fraud, and though, having made every exertion, he is unable to deliver the property, judgment shall be rendered against him for the amount to which the plaintiff will swear in court, as in other real actions; for if judgment should be rendered against him for the amount that is due, of what advantage would a real action be, as he could recover the same amount by bringing a personal one? 4The judge should sometimes decide with reference to the profits obtained by the person from the property which is the subject of the action, and render judgment against him for the profits from the time that issue was joined. But what if the land should be of less value than the debt? For he could not decide anything with reference to the profits previously obtained, unless they were still in existence, and the property was not sufficient to satisfy the claim. 5The question is asked, “How can a creditor obtain for himself the property hypothecated which has been adjudged to him by a decree of court?” He cannot bring an action to recover its ownership, but he can bring an hypothecary action; and if he is met by the possessor with an exception on the ground that the case has already been decided, he can reply that “that decision is favorable to me.” 6Where a debtor has had judgment rendered against him for a larger sum than the principal and interest together, because he refused to surrender the pledge; and if he only pays the amount of the debt, will the hypothecation be released? I do not approve of this, so far as it relates to the subtlety of the law and the authority of the opinion; for the entire obligation seems to be transferred to the decision, and hence the money is due; but I think it is more equitable for the hypothecation to be released, if the party only pays the amount which he actually owes. 7The property of another can be legally hypothecated under the condition that it will become the property of the debtor. 8Where two creditors enter into an agreement with reference to hypothecated property, the question arises to what extent has each one a lien on the same; whether for the entire amount of the debt, or for an equal portion with the other? It is the better opinion that each one has a lien on the pledge for the amount of the debt. But how would it be if both of them should institute proceedings against the possessor; will the property be encumbered for the amount due to each one, or for the entire amount, as if it was bound for the whole to each of them? It must be held that they can only bring an action for a portion, if the property was pledged separately to both of them on the same day. If, however, the understanding was that it should be encumbered to both of them at the same time, each of them can legally proceed with reference to the entire property; otherwise each one can only bring suit with reference to a share of it. 9A pledge or an hypothecation can be made as follows, “If the debt is not paid within a certain time, the creditor may hold possession of the property by the right of a purchaser, and an estimate of the value of the same must then be made at a just price.” In this instance the transaction is held to be a species of conditional sale. The Divine Severus and Antoninus stated this in a Rescript.
17 Ulpianus libro quinto decimo ad edictum. Pignoris persecutio in rem parit actionem creditori.
17 Ulpianus, On the Edict, Book XV. The right to avail himself of his pledge gives the creditor an action in rem.
18 Paulus libro nono decimo ad edictum. Si ab eo, qui Publiciana uti potuit quia dominium non habuit, pignori accepi, sic tuetur me per Servianam praetor, quemadmodum debitorem per Publicianam.
18 Paulus, On the Edict, Book XIX. If I receive property in pledge from anyone who can make use of the Publician Action, because he has not the ownership of the same, the Prætor will protect me by the Servian Action to the same extent as he will the debtor by the Publician.
19 Ulpianus libro vicesimo primo ad edictum. Qui pignori plures res accepit, non cogitur unam liberare nisi accepto universo quantum debetur.
19 Ulpianus, On the Edict, Book XXI. Where a party receives several articles in pledge, he is not compelled to release one of them, unless he receives the entire amount that is due to him.
20 Idem libro sexagesimo tertio ad edictum. Cum convenit, ut is, qui ad refectionem aedificii credidit, de pensionibus iure pignoris ipse creditum recipiat, etiam actiones utiles adversus inquilinos accipiet cautionis exemplo, quam debitor creditori pignori dedit.
20 The Same, On the Edict, Book LXIII. When it is agreed that a party who has lent money for the repair of a house shall receive from the rents, by way of pledge, the money which was loaned, he also is entitled to an equitable action against the tenants; just as in the case of security which the debtor has given to the creditor by way of pledge.
21 Idem libro septuagesimo tertio ad edictum. Si inter colonum et procuratorem meum convenerit de pignore vel ratam habente me conventionem vel mandante, quasi inter me et colonum meum convenisse videatur. 1Si debitor servum, quem a non domino bona fide emerat et pigneravit, teneat, Servianae locus est et, si adversus eum agat creditor, doli replicatione exceptionem elidet: et ita Iulianus ait, et habet rationem. 2Quidquid pignori commodi sive incommodi fortuito accessit, id ad debitorem pertinet. 3Si res pignerata non restituatur, lis adversus possessorem erit aestimanda, sed utique aliter adversus ipsum debitorem, aliter adversus quemvis possessorem: nam adversus debitorem non pluris quam quanti debet, quia non pluris interest, adversus ceteros possessores etiam pluris, et quod amplius debito consecutus creditor fuerit, restituere debet debitori pigneraticia actione.
21 The Same, On the Edict, Book LXXIII. If an agreement is made between a tenant and my agent with reference to a pledge, and I ratify the agreement, or direct it to be made; it is held that it is entered into between the tenant and myself. 1Where a debtor purchases in good faith a slave from some one who is not his master, and pledges him, and retains possession of him, there is ground for the Servian Action; and if the creditor proceeds against him, he can meet the exception by a reply on the ground of fraud. This was the opinion of Julianus, and it is reasonable. 2Any other advantage or disadvantage accidentally arising with reference to the pledge must be enjoyed, or sustained by the debtor. 3If the property pledged is not returned, damages must be assessed in court against the possessor; but it is evident that the amount will not be the same where the proceeding is instituted against the debtor, as where this is done against any other possessor; for, so far as the debtor is concerned, a creditor cannot collect more than the former owes, because he has no greater interest, but from other possessors he can recover the value of the pledge over and above the amount of the debt, and he must return the same to the debtor, if an action on pledge is brought against him.
22 Modestinus libro septimo differentiarum. Si Titio, qui rem meam ignorante me creditori suo pignori obligaverit, heres exstitero, ex postfacto pignus directo quidem non convalescit, sed utilis pigneraticia dabitur creditori.
22 Modestinus, Differences, Book VII. Where anyone, without my knowledge, pledges my property to Titius, his creditor, and I become the heir of Titius, the pledge, which indeed was not valid at first, does not immediately become so, but an equitable action on pledge will be granted to the creditor.
24 Idem libro quinto regularum. In quorum finibus emere quis prohibetur, pignus accipere non prohibetur.
24 The Same, Rules, Book V. Where anyone is forbidden to purchase property within certain limits, he is not prohibited from receiving such property in pledge.
25 Idem libro octavo regularum. Cum vitiose vel inutiliter contractus pignoris intercedat, retentioni locus non est, nec si bona creditoris ad fiscum pertineant.
25 The Same, Opinions, Book VIII. Where the contract for a pledge is void or worthless, there is no ground for the retention of the pledge by the creditor, not even if the property of the latter belongs to the Treasury.
26 Idem libro quarto responsorum. Fideiussor impetravit a potestate, ut et ante quam solveret pignora ipse possideat quasi satisfacturus creditoribus, nec satisfecit: modo heres debitoris paratus est solvere creditoribus: quaero, an pignora fideiussor restituere cogendus sit. Modestinus respondit cogendum esse. 1Pater Seio emancipato filio facile persuasit, ut, quia mutuam quantitatem acciperet a Septicio creditore, chirographum perscriberet sua manu filius eius, quod ipse impeditus esset scribere, sub commemoratione domus ad filium pertinentis pignori dandae: quaerebatur, an Seius inter cetera bona etiam hanc domum iure optimo possidere possit, cum patris se hereditate abstinuerit, nec metuiri ex hoc solo, quod mandante patre manu sua perscripsit instrumentum chirographi, cum neque consensum suum accomodaverat patri aut signo suo aut alia scriptura. Modestinus respondit: cum sua manu pignori domum suam futuram Seius scripserat, consensum ei obligationi dedisse manifestum est. 2Lucius Titius praedia et mancipia quae in praediis erant obligavit: heredes eius praediis inter se divisis illis mancipiis defunctis alia substituerunt: creditor postea praedia cum mancipiis distraxit. quaeritur, an ipsa mancipia, quae sunt modo in praediis constituta, hoc est in hypothecis, emptor vindicare recte possit. Modestinus respondit, si neque pignerata sunt ipsa mancipia neque ex pigneratis ancillis nata, minime creditoribus obligata esse.
26 The Same, Opinions, Book IV. A surety obtained permission from the court that, before he paid the debt, he could obtain possession of the pledges, provided he satisfied the creditors. He did not satisfy them, and then the heir of the debtor offered to pay the creditors. I ask whether the surety can be compelled to return the pledges; and Modestinus answered that he can be compelled to do so. 1A father easily persuaded his emancipated son, Seius, who has borrowed a sum of money from Septicius, to write an acknowledgment of indebtedness with his own hand, because he himself was unable to do so at the time, for the purpose of giving a house belonging to his said son by way of pledge to his creditor. The question arose whether Seius could legally retain possession of this house with his other property, since he had renounced the estate of his father, and could be interfered with for the sole reason that he had written the said document with his own hand, by the direction of his father, as he did not give his consent to his father either under his own seal or by any other statement in writing. Modestinus answered that when Seius wrote with his own hand that his house would be hypothecated, it was evident that he gave his consent to the obligation. 2Lucius Titius hypothecated certain lands and the slaves that were attached to them. His heirs having divided the lands between them, substituted other slaves for those who died. The creditor afterwards sold the land together with the slaves; and the question arose whether the purchaser could properly bring an action to recover the slaves which had recently been placed upon the land. Modestinus answered that if the slaves were not themselves pledged, and were not the offspring of female slaves who had been encumbered, they were, by no means, bound to the creditor.
27 Marcellus libro quinto digestorum. Servum, quem quis pignori dederat, ex levissima offensa vinxit, mox solvit, et quia debito non satisfaciebat, creditor minoris servum vendidit: an aliqua actio creditori in debitorem constituenda sit, quia crediti ipsius actio non sufficit ad id quod deest persequendum? quid si eum interfecisset aut eluscasset? ubi quidem interfecisset, ad exhibendum tenetur: ubi autem eluscasset, quasi damni iniuriae dabimus actionem ad quantum interest, quod debilitando aut vinciendo persecutionem pignoris exinanierit. fingamus nullam crediti nomine actionem esse, quia forte causa ceciderat: non existimo indignam rem animadversione et auxilio praetoris. Ulpianus notat: si, ut creditori noceret, vinxit, tenebitur, si merentem, non tenebitur.
27 Marcellus, Digest, Book V. A certain man gave a slave in pledge, and then placed him in chains for some trifling offence, and afterwards released him; and, because the debtor did not pay the debt, the creditor sold the slave for a lower price than he was worth when pledged. Can an action be brought by the creditor against the debtor because the suit on the loan was not sufficient to enable him to recover the deficiency? What if the debtor should have killed or blinded the slave? If he had killed him, he would be bound to produce him in court, but if he had blinded him, we should grant an action for malicious injury to the amount of the interest of the creditor; because by disabling or confining the slave the debtor had diminished the value of the pledge. Let us suppose that no action will lie on the ground of a loan, for the reason that the case has been lost. I do not think that the matter is unworthy of the attention and assistance of the Prætor. Ulpianus says, in a note, that if the debtor put the slave in chains in order to injure the creditor, he will be liable; but if he did so because he deserved punishment, he will not be.
28 Paulus libro tertio quaestionum. Si legati condicionalis relicti filio familias pater ab herede rem propriam eius pignori accepit et mortuo patre vel emancipato filio condicio legati exstiterit, incipit filio legatum deberi et neque pater potest pignus vindicare neque filius, qui nunc habere coepisset actionem nec ex praecedente tempore potest quicquam iuris habere in pignore, sicut in fideiussore dicitur.
28 Paulus, Questions, Book III. Where a legacy was left to a son under paternal control on a certain condition, his father received his own property from the heir by way of pledge. The father being dead, or the son emancipated, and the condition upon which the legacy was based having been fulfilled, the legacy becomes due to the son. The father could not legally bring an action to recover the pledge, nor could the son, who had now begun proceedings for that purpose, do so; nor could he have any right to the pledge which was acquired during the preceding time; just as has been stated in the case of a surety.
29 Idem libro quinto responsorum. Paulus respondit generalem quidem conventionem sufficere ad obligationem pignorum: sed ea, quae ex bonis defuncti non fuerunt, sed postea ab herede eius ex alia causa adquisita sunt, vindicari non posse a creditore testatoris. 1Si mancipia in causam pignoris ceciderunt, ea quoque, quae ex his nata sunt, eodem iure habenda sunt. quod tamen diximus etiam adgnata teneri, sive specialiter de his convenerit sive non, ita procedit, si dominium eorum ad eum pervenit qui obligavit vel heredem eius: ceterum si apud alium dominum pepererint, non erunt obligata. 2Domus pignori data exusta est eamque aream emit Lucius Titius et exstruxit: quaesitum est de iure pignoris. Paulus respondit pignoris persecutionem perseverare et ideo ius soli superficiem secutam videri, id est cum iure pignoris: sed bona fide possessores non aliter cogendos creditoribus aedificium restituere, quam sumptus in exstructione erogatos, quatenus pretiosior res facta est, reciperent. 3Si sciente et consentiente domino servus, ut omnia bona domini pignori obligata essent, convenit, ipsum quoque qui cavit obligatum esse pignoris iure.
29 The Same, Opinions, Book V. Paulus was of the opinion that a general agreement covering all the property of the debtor was sufficient to establish the obligation of pledge; but that such property as was not included in that of the deceased, but was afterwards acquired by the heir in some other manner, could not be recovered in an action by a creditor of the testator. 1Where female slaves are pledged, the children born of them are also considered to be encumbered. Still, what we have stated with reference to their children being liable, whether an express agreement was made with reference to them or not, only applies where their ownership is acquired by the person who encumbered them, or to his heir. If, however, the children were born while the female slaves were in the possession of another master, no liability will attach to them under the pledge. 2A house which was given in pledge was burned; Lucius Titius purchased the ground on which it had stood, and erected a building thereon. The question arose as to what became of the pledge? Paulus answered that the right to the pledge still remained, and therefore the right of the soil was held to follow the usufruct; that is to say, so far as the right of pledge was concerned; but the bona fide possessors will not be compelled to surrender the house, unless the builder should receive the expenses incurred in its construction, to the extent that the property was rendered more valuable. 3Where a slave, with the knowledge and consent of his master, enters into an agreement that all the property of the latter shall be hypothecated, the slave himself, who made the contract, will form part of the property pledged.
30 Idem libro sexto responsorum. Periculum pignorum nominis venditi ad emptorem pertinere, si tamen probetur eas res obligatas fuisse.
30 The Same, Opinions, Book VI. The risk of a claim secured by pledge which is sold by the creditor, must be assumed by the purchaser, if the former proves that the property was actually encumbered.
31 Scaevola libro primo responsorum. Lex vectigali fundo dicta erat, ut, si post certum temporis vectigal solutum non esset, is fundus ad dominum redeat: postea is fundus a possessore pignori datus est: quaesitum est, an recte pignori datus est. respondit, si pecunia intercessit, pignus esse. 1Item quaesiit, si, cum in exsolutione vectigalis tam debitor quam creditor cessassent et propterea pronuntiatum esset fundum secundum legem domini esse, cuius potior causa esset. respondit, si ut proponeretur vectigali non soluto iure suo dominus usus esset, etiam pignoris ius evanuisse.
31 Scævola, Opinions, Book I. The condition under which certain land subject to the payment of rent to the State was, that if, after a certain time, the rent should not be paid, the land would revert to the owner. It was afterwards given in pledge by the possessor, and the question arose whether this could legally be done? The answer was that the pledge was good where the payment of money was involved. 1It was also asked where the debtor, as well as the creditor, were in default for the payment of the rent, and for this reason a judicial decree had been rendered that the land belonged to the owner in compliance with the terms of the contract, whose position was preferable? The answer was that, according to the facts stated, as the rent had been paid, the owner might avail himself of his privilege, and the right to the pledge was extinguished.
32 Idem libro quinto responsorum. Debitor pactus est, ut quaecumque in praedia pignori data inducta invecta importata ibi nata paratave essent, pignori essent: eorum praediorum pars sine colonis fuit eaque actori suo colenda debitor ita tradidit adsignatis et servis culturae necessariis: quaeritur, an et Stichus vilicus et ceteri servi ad culturam missi et Stichi vicarii obligati essent. respondit eos dumtaxat, qui hoc animo a domino inducti essent, ut ibi perpetuo essent, non temporis causa accomodarentur, obligatos.
32 The Same, Opinions, Book V. A debtor agreed that everything belonging to his land and everything added to it, placed upon it, brought to it, born upon it, or derived from it, should be encumbered. A portion of the said land was without tenants, and the debtor, for this reason, gave it to his steward to be cultivated, and furnished him at the same time with the slaves necessary for that purpose. The question arises, whether the slave, Stichus, who was the steward, and the other slaves designated for the cultivation of the land, as well as the underslaves of Stichus, were encumbered. The answer was that only those who were brought there with the intention of the master that they should remain permanently, and not such as were employed temporarily, were subject to the pledge.
33 Tryphoninus libro octavo disputationum. Is qui promissit tibi aut Titio solutum quidem Titio repetere non potest, sed pignus ei datum et ante solutionem recipit.
33 Tryphoninus, Disputations, Book VIII. Where anyone promises to pay either you or Titius, he cannot recover what he has paid to Titius; but if he has given him a pledge, and the latter received it before payment, he can recover it.
34 Scaevola libro vicesimo septimo digestorum. Cum tabernam debitor creditori pignori dederit, quaesitum est, utrum eo facto nihil egerit an tabernae appellatione merces, quae in ea erant, obligasse videatur? et si eas merces per tempora distraxerit et alias comparaverit easque in eam tabernam intulerit et decesserit, an omnia quae ibi deprehenduntur creditor hypothecaria actione petere possit, cum et mercium species mutatae sint et res aliae illatae? respondit: ea, quae mortis tempore debitoris in taberna inventa sunt, pignori obligata esse videntur. 1Idem quaesiit, cum epistula talis emissa sit: ‘Δανεισάμενος παρὰ σοῦ δηνάρια πεντακόσια παρεκάλεσά σε μὴ βεβαιωτὴν ἀλλ’ ὑποθήκην παρ ἐμοῦ λαβεῖν· οἶδας γὰρ ἀκριβῶς, ὅτι καὶ ἡ ταβέρνα καὶ οἱ δοῦλοί μου οὐδενὶ κατέχονται ἢ σοὶ καὶ ὡς εὐσχήμονι ἀνθρώπῳ ἐπίστευσασ’: an pignus contractum sit an vero ea epistula nullius momenti sit, cum sine die et consule sit. respondit, cum convenisse de pignoribus videtur, non idcirco obligationem pignorum cessare, quod dies et consules additi vel tabulae signatae non sint. 2Creditor pignori accepit a debitore quidquid in bonis habet habiturusve esset: quaesitum est, an corpora pecuniae, quam idem debitor ab alio mutuam accepit, cum in bonis eius facta sint, obligata creditori pignoris esse coeperint. respondit coepisse.
34 Scævola, Digest, Book XXVII. Where a debtor gave a shop in pledge to his creditor, the question arose whether the transaction was void, or whether it should be held that under the designation of “shop” all of the property contained therein was pledged. And if the party should sell the said merchandise, from time to time, and purchase other goods and place them in said shop, and then should die, could the creditor recover by an hypothecary action everything found there, as the merchandise had been changed, and other articles substituted? The answer was that whatever was found in the shop at the time of the death of the debtor was held to have been pledged. 1It was also asked, where a letter, such as the following, was sent, namely: “When I borrowed five hundred denarii of you, I requested you not to take a surety but to accept a pledge from me, for you know absolutely and with certainty that my shop and my slaves are not encumbered to anyone else but yourself, and that you have confidence in me as an honest man.” Is the obligation of a pledge incurred? Or is this letter of no force, because it has no date, and no reference to the consul? The answer was that, as an agreement with reference to pledges seems to have been made, the obligation derived from a pledge is not void, merely for the reason that the date and the name of the consul do not appear, and no seals are attached to the document. 2A creditor accepted from a debtor, by way of pledge, all the property which he had or might have subsequently. The question arose whether the money which the said debtor had borrowed from the other party, as it was included in his property, would be bound to the creditor by way of pledge? The answer was that it would.
35 Labeo libro primo pithanon a Paulo epitomatorum. Si insula, quam tibi ex pacto convento licuit vendere, combusta est, deinde a debitore suo restituta, idem in nova insula iuris habes.
35 Labeo, Probabilities of the Epitomes, by Paulus, Book I. If a house which you have a right to sell under the terms of a contract of pledge is consumed by fire, and is afterwards rebuilt by your debtor, you will have the right with reference to the new building.