Quae res pignori vel hypothecae datae olbigari non possunt
(What property cannot legally be pledged or hypothecated.)
1 Marcianus libro singulari ad formulam hypothecariam. Pupillus sine tutoris auctoritate hypothecam dare non potest. 1Si filius familias pro alio rem peculiarem obligaverit vel servus, dicendum est eam non teneri, licet liberam peculii sui administrationem habeant: sicut nec donare eis conceditur: non enim usquequaque habent liberam administrationem. facti tamen est quaestio, si quaeratur, quousque eis permissum videatur peculium administrare. 2Eam rem, quam quis emere non potest, quia commercium eius non est, iure pignoris accipere non potest, ut divus Pius Claudio Saturnino rescripsit. quid ergo, si praedium quis litigiosum pignori acceperit, an exceptione summovendus sit? et Octavenus putabat etiam in pignoribus locum habere exceptionem: quod ait Scaevola libro tertio variarum quaestionum procedere, ut in rebus mobilibus exceptio locum habeat.
1 Marcianus, On the Hypothecary Formula. A ward cannot hypothecate property without the authority of his guardian. 1Where a son under paternal control, or a slave, encumbers property belonging to his peculium for another person, it must be said that the property is not liable even though he may have the free management of his peculium, just as such persons are not allowed to give away their peculium; for neither of them has unrestricted management of his property. This, however, involves a question of fact, as to how far each of them seems to have been permitted to manage his peculium. 2The Divine Pius stated in a Rescript addressed to Claudius Saturninus, that any property which a party cannot purchase because it is not an object of commerce, cannot be taken in pledge. But what if any one should receive by way of pledge land, the title to which is in litigation, would he be barred by an exception? Octavenus was of the opinion that an exception would be available even in a case of pledge. Scævola says, in the Third Book of Various Questions, that this is the method of procedure, as an exception is available wherever the property, the title to which is in dispute, is movable.
2 Gaius libro singulari de formula hypothecaria. Si alius pro muliere quae intercessit dederit hypothecam, aut pro filio familias cui contra senatus consultum creditum est, an his succurritur, quaeritur. et in eo quidem, qui pro muliere obligavit rem suam, facilius dicetur succurri ei, sicuti fideiussori huius mulieris eadem datur exceptio. sed et in eo, qui pro filio familias rem obligavit, eadem dicenda erunt, quae tractantur et in fideiussore eius.
2 Gaius, On the Hypothecary Formula. If anyone hypothecates property in behalf of a woman who has become surety for another, or in behalf of a son subject to paternal control to whom money has been lent in violation of the Decree of the Senate, the question arises, is he entitled to relief? In the case where he encumbered his own property for the woman, it can readily be said that he is entitled to relief, just as an exception is granted to the surety of such a woman. Where, however, the party hypothecated his property in behalf of a son under paternal control, the same rules must be laid down which apply to the surety of a son under such circumstances.
3 Paulus libro tertio quaestionum. Aristo Neratio Prisco scripsit: etiamsi ita contractum sit, ut antecedens dimitteretur, non aliter in ius pignoris succedet, nisi convenerit, ut sibi eadem res esset obligata: neque enim in ius primi succedere debet, qui ipse nihil convenit de pignore: quo casu emptoris causa melior efficietur. denique si antiquior creditor de pignore vendendo cum debitore pactum interposuit, posterior autem creditor de distrahendo omisit non per oblivionem, sed cum hoc ageretur, ne posset vendere, videamus, an dici possit huc usque transire ad eum ius prioris, ut distrahere pignus huic liceat. quod admittendum existimo: saepe enim quod quis ex sua persona non habet, hoc per extraneum habere potest.
3 Paulus, Questions, Book III. Aristo wrote to Neratius Priscus that even where a contract was made with a party to whom money was loaned to be paid to another on behalf of the creditor, he would not succeed to the right of pledge, unless he expressly agreed that the same property should be encumbered to him; for the second creditor should not succeed to the rights of the first, who himself made no agreement with reference to a pledge; and, in this instance, the position of the purchaser becomes preferable. Finally, if the first creditor contracted with the debtor with reference to the sale of the pledge, and the second one neglected to secure the same privilege of sale, not through forgetfulness, but because it was understood that the pledge could not be sold; let us see if the right of the first creditor will pass to the second so as to permit him to sell the pledge. I think that this should be admitted, for it often happens that a person can claim by means of a third party something to which he is not personally entitled.
4 Idem libro quinto responsorum. Titius cum mutuam pecuniam accipere vellet a Maevio, cavit ei et quasdam res hypothecae nomine dare destinavit: deinde postquam quasdam ex his rebus vendidisset, accepit pecuniam: quaesitum est, an et prius res venditae creditori tenerentur. respondit, cum in potestate fuerit debitoris post cautionem interpositam pecuniam non accipere, eo tempore pignoris obligationem contractam videri, quo pecunia numerata est, et ideo inspiciendum, quas res in bonis debitor numeratae pecuniae tempore habuerit.
4 The Same, Opinions, Book V. Titius, when he was about to borrow money from Mævius, executed an undertaking and indicated certain property to be given by way of pledge, and then, after he had sold some of the said property, he received the money. The question arose whether the property sold was liable to the creditor? The answer was that, since it was in the power of the debtor, after security had been given, not to receive the money, the obligation appeared to have been contracted with reference to the pledge at the time when the money was paid; and therefore the property which the debtor had in his possession when the money was paid should be taken into account.
5 Idem libro quinto sententiarum. Creditor, qui sciens filium familias a parente pignori accepit, relegatur.
5 The Same, Sentences, Book V. A creditor who knowingly accepts a son under parental control as a pledge from his father shall be sentenced to relegation.