Quibus modis pignus vel hypotheca solvitur
(In what ways the lien on property pledged or hypothecated is released.)
1 Papinianus libro undecimo responsorum. Debitoris absentis amicus negotia gessit et pignora citra emptionem pecunia sua liberavit: ius pristinum domino restitutum videtur. igitur qui negotium gessit, utilem Servianam dari sibi non recte desiderabit: si tamen possideat, exceptione doli defenditur. 1Cum venditor numerata sibi parte pretii praedium quod venierat pignori accepisset ac postea residuum pretium emptori litteris ad eum missis donasset, eoque defuncto donationem quibusdam modis inutilem esse constabat. iure pignoris fiscum frustra petere praedium, qui successerat in locum venditoris, apparuit, cuius pignoris solutum esse pactum prima voluntate donationis constabat, quoniam inutilem pecuniae donationem lex facit, cui non est locus in pignore liberando. 2Defensor absentis cautionem iudicatum solvi praestitit: in dominum iudicio postea translato fideiussores ob rem iudicatam quos defensor dedit non tenebuntur nec pignora quae dederunt.
1 Papinianus, Opinions, Book XI. The friend of an absent debtor took charge of his business, and, with his own money, released the pledges without their having been offered for sale. It is held that the owner was restored to his former condition, and therefore the party who transacted his business cannot justly ask that he shall be granted a prætorian action under the Lex Servia. If, however, he is in possession of the property which was pledged, he can protect himself by an exception on the ground of bad faith. 1Where a vendor sold a tract of land, and received it by way of pledge as security for a portion of the purchase-money, and afterwards presented the remainder of the price to the purchaser by a letter sent to him, the vendor having died, it was decided that a donation made in this way was void. The Treasury, which succeeded to the vendor, appeared as claimant, but was not permitted to bring suit for the land on the ground that it had been pledged, because it was held that the lien on it had been released by the will of the party who made the donation, as the law makes the donation of money void where there is no ground for the release of a pledge. 2A party who appeared in defence of another who was absent, gave an undertaking that he would execute the judgment. The conduct of the case having been afterwards transferred to the principal party himself, the sureties given by him who appeared for the defence to insure the execution of the judgment, will not be liable, nor will the pledges which they gave be liable either.
2 Gaius libro nono ad edictum provinciale. Si creditor Serviana actione pignus a possessore petierit et possessor litis aestimationem obtulerit et ab eo debitor rem vindicet, non aliter hoc facere concedetur, nisi prius ei debitum offerat.
2 Gaius, On the Provincial Edict, Book IX. If a creditor should bring suit to recover a pledge from the possessor under the Servian Action, and the possessor should obtain an appraisement of the property in court, and the debtor brings an action against him for the recovery of the property; he will not be permitted to do this, unless he first pays what is owing to the creditor.
3 Ulpianus libro octavo disputationum. Si res distracta fuerit sic, nisi intra certum diem meliorem condicionem invenisset, fueritque tradita et forte emptor, antequam melior condicio offeretur, hanc rem pignori dedisset, Marcellus libro quinto digestorum ait finiri pignus, si melior condicio fuerit allata, quamquam, ubi sic res distracta est, nisi emptori displicuisset, pignus finiri non putet.
3 Ulpianus, Disputations, Book VIII. Where property has been sold under the condition that, unless a better offer is made for it, the sale shall stand, and the property is delivered, and the purchaser, before the time for the offer of a better price has passed, pledges the said property, Marcellus says in the Fifth Book of the Digest that the right to the pledge is extinguished, if better terms should be offered; although where the property is sold on condition that it will please the purchaser, he does not think that the right to the pledge is extinguished.
4 Idem libro septuagesimo tertio ad edictum. Si debitor, cuius res pignori obligatae erant, servum quem emerat redhibuerit, an desinat Servianae locus esse? et magis est, ne desinat, nisi ex voluntate creditoris hoc factum est. 1Si in venditione pignoris consenserit creditor vel ut debitor hanc rem permutet vel donet vel in dotem det, dicendum erit pignus liberari, nisi salva causa pignoris sui consensit vel venditioni vel ceteris: nam solent multi salva causa pignoris sui consentire. sed si ipse vendiderit creditor, sic tamen venditionem fecit, ne discederet a pignore, nisi ei satisfiat, dicendum erit exceptionem ei non nocere. sed et si non concesserat pignus venumdari, sed ratam habuit venditionem, idem erit probandum. 2Belle quaeritur, si forte venditio rei specialiter obligatae non valeat, an nocere haec res creditori debeat quod consensit, ut puta si qua ratio iuris venditionem impediat? dicendum est pignus valere.
4 The Same, On the Edict, Book LXXIII. Where a debtor, all of whose property was pledged, restores as unsound a slave that he had purchased; does the Servian Action cease to be available? The better opinion is that it does not, unless this has been done with the consent of the creditor. 1Where a creditor consents to the sale of a pledge, or that the debtor may exchange the property, donate it, or give it by way of dowry, it must be said that the pledge is released, unless he consented to the sale, or to other things, with the exception of the property pledged; for many creditors are accustomed to give their consent with this reservation. Where, however, the creditor himself sells the property, with the understanding that he will not release the pledge unless he is satisfied; it must be held that an exception will not prejudice him. But if he does not consent that the pledge shall be sold, but ratifies the sale after it has been made, the same opinion should be adopted. 2A nice question arises in the case of a sale of property especially encumbered: whether it is valid, or whether the transaction should prejudice the creditor, because he gave his consent; for instance, where some principle of law prevents the sale. It must be held that the sale will be valid.
5 Marcianus libro singulari ad formulam hypothecariam. Solvitur hypotheca et si ab ea discedatur aut paciscatur creditor, ne pecuniam petat: nisi si quis dicat pactum interpositum esse, ut a persona non petatur. et quid si hoc actum sit, cum forte alius hypothecam possidebit? sed cum pactum conventum exceptionem perpetuam pariat, eadem et in hoc casu possunt dici, ut et ab hypotheca discedatur. 1Si paciscatur creditor, ne intra annum pecuniam petat, intellegitur de hypotheca quoque idem pactus esse. 2Si convenerit, ut pro hypotheca fideiussor daretur, et datus sit, satisfactum videbitur, ut hypotheca liberetur. aliud est, si ius obligationis vendiderit creditor et pecuniam acceperit: tunc enim manent omnes obligationes integrae, quia pretii loco id accipitur, non solutionis nomine. 3Satisfactum esse creditori intellegitur et si iusiurandum delatum datum est hypothecae non esse rem obligatam.
5 Marcianus, On the Hypothecary Formula. Property subject to hypothecation is released where the creditor either renounces his right, or agrees that he will not claim the money; unless it is alleged that an agreement has been made that the debt shall not be collected personally from the debtor. But what course should be pursued if another person happens to be in possession of the property hypothecated? Where, however, an agreement gives rise to a perpetual exception, it can also be said in this case that the party has renounced his right to the property hypothecated. 1If the creditor should consent not to demand the money within a year, it is understood that the agreement also applies to the property hypothecated. 2Where it is agreed between the parties that a surety shall be furnished instead of an hypothecation, and this is done, it will be held that satisfaction is given to the creditor, and that the lien on the property hypothecated is released. The case is different where the creditor sells his right to the claim and receives the money; for, in this instance, all the obligations remain unimpaired, because the money is received as the price of the claim, and not by way of payment. 3It is understood that the creditor has been satisfied if an oath has been tendered, and the party swears that the property was not hypothecated.
6 Ulpianus libro septuagesimo tertio ad edictum. Item liberatur pignus, sive solutum est debitum sive eo nomine satisfactum est. sed et si tempore finitum pignus est, idem dicere debemus, vel si qua ratione obligatio eius finita est. 1Qui paratus est solvere, merito pignus videtur liberasse: qui vero non solvere, sed satisfacere paratus est, in diversa causa est. ergo satisfecisse prodest, quia sibi imputare debet creditor, qui satisfactionem admisit vice solutionis: at qui non admittit satisfactionem, sed solutionem desiderat, culpandus non est. 2In satisdatione autem non utimur Atilicini sententia, qui putabat, si satisdetur alicui certae pecuniae, recedere eum a pignoribus debere.
6 Ulpianus, On the Edict, Book LXXIII. A pledge is also released where the debt is either paid, or the creditor is satisfied with reference to it. Moreover, we must say that the same rule applies where the pledge is released by lapse of time, or the obligation is extinguished in any manner whatever. 1Where the party is ready to pay, there is good reason to assume that the pledge has been released; but the case is different where he is not prepared to pay, but is willing to satisfy his creditors in some other way. It is, therefore, advantageous to the debtor to have satisfied his creditor, because the latter must blame himself if he accepts satisfaction in lieu of payment. He, however, is not to be blamed who declines to accept any other satisfaction, but demands payment. 2With reference to security, we do not adopt the opinion of Atilicinus, who held that if a debtor gave anyone security for money loaned, the latter should be considered to have released his pledges.
7 Gaius libro singulari ad formulam hypothecariam. Si consensit venditioni creditor, liberatur hypotheca: sed in his pupilli consensus non debet aliter ratus haberi, quam si praesente tutore auctore consenserit aut etiam ipse tutor, scilicet si commodum aliquid vel satis ei fieri ex eo iudex aestimaverit. 1Videbimus, si procurator omnium bonorum consensit vel servus actor, cui et solvi potest et in id praepositus est, an teneat consensus eorum. et dicendum est non posse, nisi specialiter hoc eis mandatum est. 2Sed si cum debitoris procuratore convenit, ne sit res obligata, dicendum est id debitori per doli exceptionem prodesse: cum autem cum servo eius convenerit, per ipsam pacti exceptionem conventi debet. 3Si convenit de parte pro indiviso alienanda, si certa res est quae venit, potest dici de reliqua parte ab initio agi oportere nec obstat exceptio. 4Illud tenendum est, si quis communis rei partem pro indiviso dederit hypothecae, divisione facta cum socio non utique eam partem creditori obligatam esse, quae ei obtingit qui pignori dedit, sed utriusque pars pro indiviso pro parte dimidia manebit obligata.
7 Gaius, On the Hypothecary Formula. Where a creditor consents to the sale of the property hypothecated, the lien on the latter is released. In such instances, however, the consent of a ward should not be considered unless he has given it by the authority of his guardian, who was present, or unless the guardian himself consented; provided the judge thinks that any advantage will be gained, or the claim be satisfied, by the sale of the property. 1Let us see if a general agent, or a slave who has the management of his master’s affairs, to whom payment can be made and who has been appointed for that purpose, can consent. It must be held that his consent is not sufficient, unless he has been expressly authorized to act. 2Again, where an agreement is made with the agent of the debtor that certain property should not be encumbered, it must be held that the debtor can avail himself of an exception on the ground of fraud. But when an agreement of this kind is made with his slave, he can plead an exception based upon the agreement itself. 3If it should be agreed between the parties that half of the undivided property pledged shall be alienated, and the property involved is certain, it can be said that proceedings must be instituted with reference to the remaining portion in the beginning, and that an exception cannot be interposed to prevent it. 4It must be held that where anyone hypothecates his undivided share of property held in common, and a division of the same is made with his joint-owner, not merely that portion which falls to him who gave it in pledge is encumbered, but half of the share of each joint-owner is subject to the lien.
8 Marcianus libro singulari ad formulam hypothecariam. Sicut de re corporali extincta, ita et usu fructu exstincto pignus hypothecave perit. 1Creditor, ne pignori hypothecaeve sit res, pacisci potest: et ideo si heredi pactus fuerit, ei quoque proderit pactum, cui restituit hereditatem ex senatus consulto Trebelliano. 2Si procurator debitoris in rem suam sit, non puto dubitari debere, quin pactum noceat creditori. itemque si a parte creditoris procurator in rem suam exstiterit, paciscendo inutilem sibi faciet hypothecariam actionem, in tantum, ut putem recte dici et dominis litis hoc casu nocere hanc exceptionem. 3Si convenerit, ne pars dimidia pro indiviso pignori sit, quaecumque fundi eius pars a quolibet possessore petatur, dimidia non recte petetur. 4Si plures dederint pro indiviso et cum uno creditor paciscatur, ne hypothecae sit, deinde ab eo petat, etiamsi hic cum quo pactus est solidum fundum possideat, pro indiviso quia de parte convenisset, non repellit eum a toto. 5An pacisci possint filius familias et servus, ne res pignori sit, quam peculiariter hypothecam acceperint et habent liberam administrationem, videamus, an quemadmodum donare non possunt, ita nec pacisci ne pignori sit possint. sed dicendum est, ut concedere possint, scilicet si pretium pro pactione accipiant, quasi vendant. 6Si voluntate creditoris fundus alienatus est, inverecunde applicari sibi eum creditor desiderat, si tamen effectus sit secutus venditionis: nam si non venierit, non est satis ad repellendum creditorem, quod voluit venire. 7Supervacuum est quaerere agrum specialiter hypothecae datum permissu creditoris venisse, si ipse debitor rem possideat: nisi quod potest fieri, ut debitor permissu creditoris vendiderit, deinde postea bona fide redemerit ab eodem vel ab alio, ad quem per successionem ea res pertinere coepisset, aut si ipse debitor emptori heres exstiterit: verumtamen cum pecunia soluta non sit, doli mali suspicio inerit translata ad praesens tempus, ut possit creditor replicationem doli mali obicere. 8Illud videamus, si Titius debitor voluntate creditoris sui vendiderit Maevio vel ei, a quo Maevius emerit, et postea Maevius Titio heres exstiterit et creditor ab eo petat, quid iuris sit. sed iniquum est auferri ei rem a creditore, qui non successionis iure, sed alio modo rem nactus est. potest tamen dici, cum Titii dolus in re versaretur, ne creditor a possessore pecuniam recipiat, iniquissimum esse ludificari eum. 9Quod si is fundus a Maevio alicui obligatus possideatur, cui nondum satisfactum erit, tunc rursus aequum erit excipi ‘si non voluntate creditoris veniit’: licet enim dolus malus debitoris interveniat qui non solvit, tamen secundus creditor qui pignori accepit potior est. 10Tutius tamen est, si debitor a creditore petat, ut ei permittat pignus vendere, quo magis satisfaciat, ante cautionem accipere ab eo, qui rem empturus erit, ut pretium rei venditae usque ad summam debiti creditori solvatur. 11Venditionis autem appellationem generaliter accipere debemus, ut et si legare permisit, valeat quod concessit: quod ita intellegemus, ut, si legatum repudiatum fuerit, convalescat pignus. 12Si debitor vendiderit rem nec tradiderit, an non repellatur creditor, quasi adhuc res in bonis sit debitoris, an vero, cum teneatur ex empto, pignus exstinguatur? quod et magis est. sed quid si pretium venditor consecutus non sit nec paratus sit emptor dare? tantundem potest dici. 13Sed si permiserit creditor vendere, debitor vero donaverit, an exceptione illum summoveat? an facti sit magis quaestio, numquid ideo veniri voluit, ut pretio accepto ipsi quoque res expediat? quo casu non nocebit consensus. quodsi in dotem dederit, vendidisse in hoc casu recte videtur propter onera matrimonii. in contrarium, si concessit donare et vendiderit debitor, repelletur creditor, nisi si quis dicat ideo concessisse donari, quod amicus erat creditori is cui donabatur. 14Quod si concesserit decem vendere, ille quinque vendiderit, dicendum est non esse repellendum creditorem: in contrarium non erit quaerendum, quin recte vendit, si pluris vendiderit, quam concessit creditor. 15Non videtur autem consensisse creditor, si sciente eo debitor rem vendiderit, cum ideo passus est veniri, quod sciebat ubique pignus sibi durare. sed si subscripserit forte in tabulis emptionis, consensisse videtur, nisi manifeste appareat deceptum esse. quod observari oportet et si sine scriptis consenserit. 16Si debitori concessum sit et heres eius vendiderit, potest facti quaestio esse, quid intellexit creditor. sed recte venisse dicendum est: hae enim suptilitates ab iudicibus non admittuntur. 17Si debitor forte concessa venditione desierit possidere et novus possessor vendiderit, an duret pignus, quasi personae permiserit creditor? quod et magis est: nam si novo possessori, non debitori a quo hypothecam accepit, concessit creditor vendere, dicendum est nocere ei exceptionem. 18Sed si intra annum aut biennium consenserit creditor vendere, post hoc tempus vendendo non aufert pignus creditori. 19Si creditor hypothecaria usus a possessore litis aestimationem consecutus fuerit et a debitore petat debitum, puto doli mali exceptionem ei obstaturam.
8 Marcianus, On the Hypothecary Formula. Just as property, as well as its usufruct, ceases to exist, so also is the right of pledge or hypothecation extinguished for the same reason. 1A creditor can agree that the property encumbered shall no longer be subject to pledge or hypothecation, and, therefore, if this agreement was made with the heir, it will also benefit him to whom the estate is delivered under the terms of the Trebellian Decree of the Senate. 2Where the agent of the debtor enters into an agreement of this kind with reference to his property, I do not think it can be doubted that the agreement will prejudice the creditor. And, also, if an agent, acting in his own behalf, appears for the creditor, and makes a contract, he will render the hypothecary action void to such an extent that I think it can be rightly held that, in this instance, the exception will prejudice the case of the principal. 3If it should be agreed between the parties that the undivided half of the property in question should cease to be liable by way of pledge, and any portion whatever of the land referred to should be claimed in an action against any possessor whomsoever, suit can only be brought for half of the same. 4Where several joint-owners of one piece of property pledge their undivided shares in the same, and the creditor agrees with one of them that his share shall not be hypothecated, and he afterwards brings suit for it, even if he with whom he made the agreement is in possession of the entire undivided tract of land, because the creditor made an agreement with reference to a portion of the same, he cannot be excluded from proceeding against the whole of it. 5Let us consider whether a son under paternal control or a slave who has the free management of his peculium can make an agreement with a debtor that property pledged shall be released, which property they received as being specially hypothecated. Or, since they cannot give away their peculium, are they also prohibited from agreeing that property pledged to them shall not be released? It must be held that they can make such an agreement, provided they received a consideration for doing so, just as if they had sold the property pledged. 6If the land which was encumbered is sold with the consent of the creditor, the latter cannot honestly claim that it is still liable for the debt, if the sale is effected; for if it is not concluded, the creditor will not be deprived of his rights, merely because he gave his consent that the property should be sold. 7It is superfluous to inquire whether a tract of land specially hypothecated was sold with the consent of the creditor, if the debtor had possession of the property at the time; unless it might happen that the debtor sold it with the permission of the creditor, and then afterwards redeemed it in good faith from the purchaser, or someone else to whom the property had passed by the right of succession; even if the debtor himself should have become the heir of the purchaser. Still, if the money was not paid, a suspicion of bad faith will arise, which will extend to the present time, so that the creditor will have a right to interpose a reply on the ground of fraud. 8Let us examine the following case. If Titius, who was a debtor, should sell property which was pledged to Mævius, with the consent of his creditor, or to someone else from whom Mævius purchased it, and afterwards Mævius should become the heir of Titius, and the creditor should proceed to collect the debt from him, what is the law? It would be unjust for the purchaser to be deprived of the property by the creditor, as he obtained it, not by the right of succession, but in another way. It can, however, be said that as Titius was guilty of bad faith in the matter, by preventing the creditor from collecting the money from the possessor, it is very unjust that he should be made game of in this manner. 9If, however, the land in the possession of Mævius should be encumbered by him to anyone whose claim had not yet been satisfied, an exception can then be properly interposed on the ground that the property was not sold with the consent of the creditor; for although the debtor was guilty of bad faith in not making payment, still, the second creditor, who received the property in pledge, should be preferred. 10It is the safer plan, however, where a debtor requests his creditor to permit him to sell the pledge in order that he may the more readily pay him, to compel the prospective purchaser to give an undertaking to pay the creditor the price of the property sold, to the amount of the debt. 11We should understand the term “sale,” in a general sense, so that if the creditor permits the debtor to bequeath the property pledged, what he has granted may be valid; and this must be understood in such a way that if the legacy should be rejected, the pledge will still remain in force. 12Where a debtor sells property, but has not yet delivered it, shall the creditor be prevented from bringing an action on the ground that the property still forms part of the possessions of the debtor; or, indeed, since he is liable to an action on purchase, is the right to the pledge extinguished? The latter is the better opinion. But what if the vendor has not received the price, and the purchaser is not ready to pay it? In this instance the same can be said. 13If, however, the creditor permitted the property to be sold, but the debtor gave it away; will he be barred by an exception? Or is this rather a question of fact, he having consented that the property should be sold, in order that the price having been paid, the transaction would be an advantage to him? In this instance, his consent should not prejudice him. But, if he gave the property by way of dowry, he will very properly be held to have sold it on account of the burdens of matrimony. On the other hand, if the creditor permitted him to give away the property, and the debtor sells it, the creditor will be barred from prosecuting his claim; unless it may be said that he permitted a gift to be made because the party to whom the property was given was a friend of the creditor. 14If the creditor gave his consent for the property to be sold for ten aurei, and the debtor should sell it for fifteen, it must be held that the creditor is not prevented from prosecuting his claim. On the other hand, there is no question that he sold it legally, if he obtained more by the transaction than the creditor permitted him to sell it for. 15The creditor will not be held to have given his consent if the debtor should sell the property with his knowledge; as he only suffered him to do so because he was aware that his right to the pledge would be preserved under all circumstances. If, however, he signed the bill of sale, he will be held to have given his consent, unless it is perfectly evident that he was deceived. This rule should also be observed where he gave his consent without signing any document. 16Where permission to sell was granted the debtor, and his heir sold the property, a question of fact may arise as to what was the intention of the creditor. It must be said that the sale was properly made, for these subtleties are not considered by the courts. 17Where a debtor having obtained permission to sell the property pledged ceases to be in possession of the same, and a new possessor sells it, will the right to the pledge continue to exist, just as if the creditor had personally given permission to the debtor? This is the better opinion, for if the creditor had given permission to the new possessor to sell the property, and had not given it to the debtor by whom it was hypothecated to him, it must be held that he will be barred by an exception. 18If, however, the creditor should consent for the property to be sold within a year, or within two years, and it should be sold after that time; the creditor will not be deprived of his right to the pledge. 19Where a creditor has availed himself of the hypothecary action, and has recovered damages from the possessor, and afterwards claims the debt from the debtor; I think that he can be barred by an exception on the ground of fraud.
9 Modestinus libro quarto responsorum. Titius Sempronio fundum pignori dedit et eundem fundum postea Gaio Seio pignori dedit, atque ita idem Titius Sempronio et Gaio Seio fundum eundem in assem vendidit, quibus pignori ante dederat in solidum singulis. quaero, an venditione interposita ius pignoris exstinctum sit ac per hoc ius solum emptionis apud ambos permanserit. Modestinus respondit dominium ad eos de quibus quaeritur emptionis iure pertinere: cum consensum mutuo venditioni dedisse proponantur, invicem pigneraticiam actionem eos non habere. 1Titius Seio pecuniam sub pignore fundi dederat: qui fundus cum esset rei publicae ante obligatus, secundus creditor pecuniam rei publicae eam solvit: sed Maevius exstitit, qui dicebat ante rem publicam sibi fundum obligatum fuisse: inveniebatur autem Maevius instrumento cautionis cum re publica facto a Seio interfuisse et subscripsisse, quo caverat Seius fundum nulli alii esse obligatum: quaero, an actio aliqua in rem Maevio competere potest. Modestinus respondit pignus, cui is de quo quaeritur consensit, minime eum retinere posse.
9 Modestinus, Opinions, Book IV. Titius pledged a tract of land to Sempronius, and afterwards pledged it to Gaius Seius; and then Titius sold the identical land to the said Sempronius and Gaius Seius in its entirety, to each of whom he had formerly pledged it as a whole. I ask whether the right of pledge was extinguished through the sale having taken place, or if, on this account, only title by purchase remains in both creditors? Modestinus answered that, by the right of purchase, the ownership vests in the parties mentioned; since, according to the facts stated, both of them had consented to the sale, but that they would not have the right of action on pledge against one another. 1Titius loaned money to Seius on a pledge of land, the said land having been previously encumbered to the State; the second creditor paid the money due to the State, but Mævius appeared and asserted that the land had been mortgaged to him before it had been encumbered to the State. It was, however, ascertained that Mævius had been present and had signed the undertaking executed by Seius to the government, by which instrument Seius guaranteed that the land was not encumbered to anyone else. I ask whether any action with reference to the property can be brought by Mævius. Modestinus answered that he could, by no means, retain any right to the pledge in question, after he had consented to the above mentioned transaction.
10 Paulus libro tertio quaestionum. Voluntate creditoris pignus debitor vendidit et postea placuit inter eum et emptorem, ut a venditione discederent. ius pignorum salvum erit creditori: nam sicut debitori, ita et creditori pristinum ius restituitur, neque omni modo creditor pignus remittit, sed ita demum, si emptor rem retineat nec reddat venditori. et ideo si iudicio quoque accepto venditor absolutus sit vel quia non tradebat in id quod interest condemnatus, salvum fore pignus creditori dicendum est: haec enim accidere potuissent, etiamsi non voluntate creditoris vendidisset. 1Creditor quoque si pignus distraxit et ex venditione recessum fuerit vel homo redhibitus, dominium ad debitorem revertitur. idemque est in omnibus, quibus concessum est rem alienam vendere: non enim quia dominium transferunt, ideo ab emptore ius recipiunt: sed in pristinam causam res redit resoluta venditione.
10 Paulus, Questions, Book III. A debtor sold a pledge with the consent of his creditor, and afterwards it was agreed between him and the purchaser that the sale should be rescinded. The right to the pledge remained unimpaired with the creditor, for just as the former rights were restored to the debtor, so also were they restored to the creditor. For the creditor did not absolutely release his claim to the pledge, but only to the extent that the purchaser should retain the property, and not return it to the vendor. Therefore, if in the course of judicial proceedings, the vendor should be discharged, or if judgment should be rendered against him to the amount of the purchaser’s interest, because he did not deliver the property, it must be held that the right of the creditor to the pledge will remain unimpaired; for this may happen even where the property was not sold with the consent of the creditor. 1Where, also, a creditor sells a pledge, and the sale is rescinded, or the slave which was the object of it is returned as unsound, the ownership reverts to the debtor. The same rule applies in all cases in which permission is given to sell property belonging to another, for the parties do not receive their rights from the hands of the purchaser, merely because they have transferred the ownership, but the property returns to its former condition, when the sale is rescinded.
11 Idem libro quarto responsorum. Lucius Titius cum esset uxori suae Gaiae Seiae debitor sub pignore sive hypotheca praediorum, eadem praedia cum uxore sua Seiae Septiciae communis filiae nomine Sempronio marito eius futuro in dotem dedit: 1postea defuncto Lucio Titio Septicia filia abstinuit se hereditate paterna: quaero, an mater eius hypothecam persequi possit. Paulus respondit pignoris quidem obligationem praediorum Gaiam Seiam, quae viro pro filia communi in dotem eadem danti consensit, cum communis filiae nomine darentur, remississe videri, obligationem autem personalem perseverasse: sed adversus eam, quae patris hereditate se abstinuit, actionem non esse dandam.
11 The Same, Opinions, Book IV. Lucius Titius was indebted to his wife, Gaia Seia, for money loaned on a pledge, or on land which was hypothecated; and, together with his wife, he gave the same land by way of dowry to Sempronius, who was about to marry Seia Septitia, their daughter. 1Lucius Titius, having died, his daughter, Septitia, declined to accept the estate of her father, and I ask whether her mother could claim the property which was hypothecated to her? Paulus answered that Gaia Seia was held to have released the obligation of the pledged land which she had consented that her husband should give as dowry to their daughter, when the said property was given in behalf of the said daughter, but that the personal liability continued to exist; the action, however, could not be granted against her who had refused to accept her father’s estate.
12 Idem libro quinto responsorum. Paulus respondit Sempronium antiquiorem creditorem consentientem, cum debitor eandem rem tertio creditori obligaret, ius suum pignoris remississe videri, non etiam tertium in locum eius successisse, et ideo medii creditoris meliorem causam effectam. idem observandum est et si res publica tertio loco crediderit. 1Qui pignoris iure rem persequuntur, a vindicatione rei eos removeri solere, si qualiscumque possessor offerre vellet: neque enim debet quaeri de iure possessoris, cum ius petitoris removeatur soluto pignore.
12 The Same, Opinions, Book V. Paulus gave it as his opinion that where Sempronius, a first creditor, consented that the debtor should encumber the same property pledged to him to a third creditor, he is held to have released his right to the pledge, but that the third creditor was not subrogated to him, and therefore the position of the second creditor was improved. The same rule should be observed where the Government lends money as a third creditor. 1Where anyone prosecutes his claim to property by the right of pledge, it is usual for him to be barred from an action for the recovery of the property pledged, where the possessor makes him a tender of the amount of his claim; for no inquiry should be made with reference to the title of the possessor, when the right of the plaintiff is extinguished by the release of the pledge.
13 Tryphoninus libro octavo disputationum. Si deferente creditore iuravit debitor se dare non oportere, pignus liberatur, quia perinde habetur, atque si iudicio absolutus esset: nam et si a iudice quamvis per iniuriam absolutus sit debitor, tamen pignus liberatur.
13 Tryphoninus, Disputations, Book VIII. Where a debtor, after the oath has been tendered by his creditor, swears that he should not be obliged to pay, the pledge is released, because this proceeding has the same effect as if the debtor had been discharged from liability in court, for if he has been discharged by the judge, even though this was done unjustly, the pledge will, nevertheless, be released.
14 Labeo libro quinto posteriorum a Iavoleno epitomatorum. Cum colono tibi convenit, ut invecta importata pignori essent, donec merces tibi soluta aut satisfactum esset: deinde mercedis nomine fideiussorem a colono accepisti. satisfactum tibi videri existimo et ideo illata pignori esse desisse.
14 Labeo, Later Epitomes by Javolenus, Book V. Where it is agreed upon between you and your tenant that whatever property he brings upon your land shall be considered pledged until the rent is paid to you, or you are satisfied in some other way, and you then accept a surety from the tenant for the payment of the rent, I think that you are satisfied, and therefore that the personal property brought on your land by the tenant ceases to be encumbered.
15 Scaevola libro sexto digestorum. Primi creditoris, qui pignori praedia acceperat, et posterioris, cui quidam ex isdem fundis dati erant, ad eandem personam hereditas devenerat: debitor offerebat, quantum a posteriore creditore mutuatus fuerat. respondit cogendum accipere salvo iure pignoris prioris contractus.
15 Scævola, Digest, Book VI. The estate of a first creditor who had received certain land by way of security, and those of a second one to whom also some of the land had been mortgaged, passed by inheritance to the same person. The debtor offered to pay to the said heir the amount which he had borrowed from the second creditor. The opinion was given that he should be compelled to accept the money, his right to the pledge under the first contract remaining unimpaired.