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.

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.

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.

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.

The Same, On the Edict, Book LXXIII. Ad Dig. 20,1,21 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 73, Note 12.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. 2Ad Dig. 20,1,21,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 382, Note 11.Any 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.

Ad Dig. 20,2,3ROHGE, Bd. 6 (1872), S. 281: Pfandrecht des Vermiethers an den eingebrachten zum Verkaufe bestimmten Waaren des Miethers. Zeitweise und dauernde Bestimmung der Verwendung.Ulpianus, On the Edict, Book LXXIII. Neratius thinks that where a warehouse is leased, whether the agreement refers to other things or only to the space occupied, a tacit agreement exists with reference to whatever is placed therein, and that the rule also applies in this instance; which is correct.

Ulpianus, On the Edict, Book LXXIII. Although, in the case of urban estates, it is customary to understand that a tacit agreement was entered into to the effect that the property which is brought or placed in the house is liable, just as if an express contract had been made with reference thereto; it is certain that a pledge of this kind does not affect the freedom of a slave. This opinion Pomponius approves, for he says that it does not, in any way, hinder manumission, where the pledge is liable for the rent.

The Same, On the Edict, Book LXXIII. Hence, the money of the second creditor insures the safety of the entire pledge. This is also the case where money is lent for the support of the sailors, without which the ship could not safely arrive at its destination. 1Moreover, where anyone has lent money on merchandise pledged to himself either for its preservation or to defray the expenses of transportation, he will be preferred, even though he may be a second creditor; for the expenses of transportation are a prior lien. 2Ad Dig. 20,4,6,2ROHGE, Bd. 6 (1872), S. 281: Pfandrecht des Vermiethers an den eingebrachten zum Verkaufe bestimmten Waaren des Miethers. Zeitweise und dauernde Bestimmung der Verwendung.The same rule applies where the rent of a warehouse, or of land, or of transportation of merchandise by beasts of burden is due; for, under such circumstances, this creditor will be preferred.

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. 1Ad Dig. 20,6,4,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 249, Note 10.Where 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.

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.

Ulpianus, On the Edict, Book XXXVII. Anything which a wife gives to her husband, or a husband to his wife, is held by him or her as its possessor.

The Same, On the Edict, Book LXXIII. The same rule should be adopted. And if he releases a pledge, or pays any person for the purpose of defrauding his creditors:

Ad Dig. 42,8,10ROHGE, Bd. 10 (1874), S. 248: Der particeps fraudis debitoris haftet den Gläubigern auf den vollen Ersatz des ihnen Entzogenen, ohne Rücksicht darauf, ob er es noch besitzt.Ulpianus, On the Edict, Book LXXIII. The Prætor says: “Where Lucius Titius, with your privity and to your advantage, has disposed of any property for the purpose of defrauding his creditors, so that an action under my Edict will lie against him for the property in question, when no more than a year has elapsed, as an action with reference to said property can be brought, you must grant restitution, after proper cause has been shown; and even if you were not aware of the fact, I will grant an action in factum.” 1Ad Dig. 42,8,10,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 463, Note 25.When anything is done for the purpose of defrauding creditors, it is only set aside where fraud actually results, that is to say, where the creditors whom the person intended to defraud have sold his property. If, however, he has satisfied the claims of those whom he intended to defraud, and has obligated himself to other creditors, or if he has simply paid those whom he intended to defraud, and afterwards become indebted to others, annulment will not take place; but if he satisfied the claims of the first ones whom he intended to defraud by paying them the money of the others whom he had no intention of defrauding, Marcellus says that there will be ground for the annulment of the transaction. This distinction is mentioned in a Rescript of the Emperors Severus and Antoninus, and is recognized in our present practice. 2Where the Prætor says, “aware of the fact,” we must understand this to mean that I know that you are committing a fraud; for if I merely know that you have creditors, it will not be sufficient to render me liable to an action in factum, for I must have participated in the fraud. 3If anyone is not a participant in a fraud, and still, at the time of the sale of the debtor’s property, should be summoned by the creditors and notified by them in the presence of witnesses not to purchase the property, will he be liable to an action in factum if he should do so? The better opinion is that he will be liable, for anyone who is notified not to purchase in the presence of witnesses, and does so, is not free from fraud. 4It is, however, otherwise where anyone knows that another has creditors, and makes an absolute contract with him, without being aware of the fraud; for he is not considered to be liable to this action. 5The Prætor says, “aware of the fact,” that is to say, he is meant against whom this action can be brought. But what if the guardian of a ward was aware of the fraud, and his ward was not? Let us see whether there will be ground for an action based upon the knowledge of the guardian, and whether the same rule will apply to the curator of an insane person, or a minor? I think that the knowledge of the guardian or the curator will only injure the ward or the minor to the amount of property which comes into their hands. 6It should also be noted that, where it is alleged that a sale of property made for the purpose of defrauding creditors can be set aside, if the creditors are the same, even if one of them is of the number of those who have been defrauded (whether he is the only one remaining, or the claims of the others along with his have been satisfied), it must be held that there will still be ground for this action. 7It is certain that it can be brought, even if the contracting party knew that one of the creditors had been defrauded, although he was not aware that this was also the case with the others. 8But what if he who was supposed to have been defrauded has been paid; will he be liable to an action for the reason that the remaining creditors have not been the victims of fraud? I think that this opinion should be adopted. And if anyone, for the purpose of avoiding an action, should say, “I tender what is due to him whom I know to be a creditor,” he should not be heard. 9Ad Dig. 42,8,10,9Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 463, Note 25.If the person intending to commit fraud has an heir, and the property of the latter is sold by his creditors, as this has no reference to the property in question, this action will not lie. 10Ad Dig. 42,8,10,10Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 463, Note 25.If a son, who” has the right to reject an estate, should commit some act for the purpose of defrauding the creditors, and obtain complete restitution because he interfered in the affairs of the estate, or if even a voluntary heir should commit a fraudulent act for the same purpose, and is entitled to complete restitution on account of his age, or for any other good reason, it must be said that an equitable action can” be brought against him. The same rule applies to a slave who is a necessary heir. Labeo, however, says that this rule should be adopted with an exception, for if the creditors sell the property of an estate, and the necessary heirs commit any act with reference to it during the absence, or with the consent of the creditors, the fraudulent act of both parties, that is to say, of the testator and his slaves, will be revoked. If, however, the creditors permitted the necessary heir to act, and had faith in him, or, tempted by the prospect of a high rate of interest, or for some other reason, were induced to trust him, it must be held that any sale of the property made by the testator ought not to be set aside. 11Ad Dig. 42,8,10,11Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 463, Note 12.If a minor, under the age of puberty, becomes the heir of his father, and dies, and his property is sold by his creditors after a separation has been obtained, any fraudulent sale made by the ward, or by his guardian or curator can be set aside. 12When a debt is due to me within a certain time, and the person intending to commit a fraud pays it before it is due, it must be said that the benefit which I have obtained from being paid in advance will afford ground for an action in factum, for the Prætor understands that the fraud was committed with reference to the time. 13Ad Dig. 42,8,10,13ROHGE, Bd. 15 (1875), Nr. 20, S. 51: Anfechtung der datio in solutum mit der actio Pauliana.Where a creditor has not been paid, but has received a pledge as security for an old claim, he will be liable to this action; as has been frequently set forth in constitutions. 14If a woman, with a view to defrauding her creditors, marries one of her debtors, and releases him from his obligation for the purpose of obtaining the amount as dowry, in fraud of her creditors, this action will lie; and, by means of it, all the money which her husband owed can be collected. The woman will not be entitled to bring suit to recover her dowry, for the dowry was constituted in fraud of her creditors; and this is absolutely certain, and has been frequently promulgated in constitutions. The effect of the action will be to reestablish unimpaired the stipulation from which her husband had been released. 15Ad Dig. 42,8,10,15Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 463, Note 12.By means of this action an usufruct, as well as a stipulation in the following terms, “Do you promise to pay ten aurei every year?” can be enforced. 16Ad Dig. 42,8,10,16Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 463, Note 12.If I pursue and arrest a debtor of mine who has several creditors, and had absconded, and I recover the money which he has stolen, and take from him what belongs to me, it was the opinion of Julianus that it made a great deal of difference whether this was done before the creditors of the debtor were placed in possession of his property, or afterwards. If it was done before, an action in factum will not lie; if it was done afterwards, there will be ground for the action. 17If the property of a deceased person has been adjudged to anyone, by the Constitution of the Divine Marcus, it must be held that for the purpose of preserving freedom this action will not lie; for he to whom it was adjudged succeeds to the estate with the understanding that whatever was done by the deceased was valid. 18The year during which the action in factum must be brought is reckoned from the day of the sale of the property. 19By means of this action, the property must be restored, but, of course, with any charges imposed upon it. 20The income derived from the property, not only that which has been collected, but also what could have been collected by the person guilty of fraud, is included. This rule, however, is capable of modification, for any expenses which have been incurred should be deducted, as he cannot be compelled by the decision of the court to restore the property, before he has been reimbursed for his necessary expenses. This rule should also be adopted where any other person has incurred expense with the consent of the sureties and the creditors. 21I think that the better opinion is that the offspring of a slave is included in this action. 22Ad Dig. 42,8,10,22ROHGE, Bd. 13 (1874), Nr. 122, S. 381: Besitz als Voraussetzung der actio Pauliana.Moreover, generally speaking, it should be noted that by this action everything should be restored to its former condition, whether it consists of property or of obligations, so that whatever may have been done is set aside, just as if no release had been made. In consequence of this, any profit which would have been obtained in the meantime by the debtor, if no release had been given, must be returned; or if interest, which was not included in the stipulation, was not paid; or if the contract was of such a nature that interest could be collected under it, even if it was not agreed upon. 23If the obligation was conditional or had reference to a certain time, it must be re-established with the condition or the time. If, however, it was of such a character that the time upon which it was dependent had elapsed, it can be said that restitution could be asked for within the time which remains, for the discharge of the obligation, without waiting until the year had expired. 24This action can be brought after the year has elapsed, where any property which has come into the hands of him who is the object of it is involved; for the Prætor thought that it would be unjust to permit him to have any benefit who had profited by the fraud, and therefore he decided that he should be deprived of all gain. Therefore, whether the party in question himself committed the fraud, or someone else profited by it, the action can be brought with reference to. whatever has come into his hands, or if he has acted fraudulently to avoid acquiring it. 25This action is granted in favor of the heir and other successors, and against the heir and persons of this kind.

Ulpianus, On the Edict, Book LXXIII. The Prætor says: “I forbid force to be employed to prevent your tenant from leaving, and taking with him the slave in question, if the latter does not constitute a part of the property which, in accordance with the agreement between yourself and the plaintiff, should be held by way of pledge to secure the rent; whether the said property has been taken or brought inta your house, born there, or made there; but if he forms part of the same, I forbid you to prevent your tenant from taking him away with him, when he departs; provided he has paid you the rent out of said property, or has furnished you security for it, or you are to blame for its not having been paid.” 1This interdict was introduced for the benefit of a lessee who wishes to depart after having paid his rent. It does not lie in favor of a tenant on a farm. 2Relief can also be given to a lessee by extraordinary proceedings, and therefore this interdict is not frequently employed. 3Still, it will lie in favor of one who has a gratuitous lodging. 4If the rent is not yet due, Labeo says that this interdict cannot be employed, unless the tenant is ready to pay it. Hence, if he has paid it for half the year, and owes it for the other half, he cannot have recourse to the interdict unless he pays the rent for the remaining six months. This, however, is only the case where a special agreement was made when the house was rented, providing that the lessee should not be permitted to leave before the end of the year, or before a specified time has elapsed. The same rule applies where anyone rents a house for several years, and the term has not yet expired; for where property is pledged for the entire amount of the rent, the result will be that the interdict will not be available, unless the articles pledged have been released. 5It must, however, be noted that the Prætor does not require the property to belong to the lessee, nor that it should have been expressly pledged, but that it must be brought into the house as pledged. Hence this interdict will apply, even if the property belongs to another, if it has been brought into the house for the purpose of being pledged, and is such as cannot be given in pledge. If it has not been brought in for that purpose it cannot be retained by the lessor. 6This interdict is perpetual, and is granted for and against heirs.