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owner must in many cases have caused no small inconvenience, and detracted from the value of this form of security. Of course the debtor was entitled to any surplus of the purchase money after payment of the debt.
The latest and most refined form of pledge is hypotheca, in which there was no conveyance of either ownership or possession; it was effected by a bare formless agreement between the debtor and creditor, that certain specific property of the former should be liable in full for his debt to the latter, who should be entitled to sell in default of payment within a prescribed time : 'contrahitur hypotheca per pactum conventum, cum quis pac i sea tur, ut res eius propter aliquam obligationem sint hypothecae nomine obligatae: nec ad rem pertinet, quibus fit verbis' Dig. 20. t. 4. Such an agreement, in itself, was inoperative to create rights either real or personal: it was, however, enforced by the praetor, who treated the right of sale as a ius in re aliena, of which the creditor could not be deprived by any subsequent act of the debtor, and which he could successfully assert (by remedies of his own introduction) against any other person whatsoever, whether the creditor, his successor, alienee, or trustee in bankruptcy. The steps by which this praetorian innovation reached its full development are these. It was first introduced in the joint interest of landlord and tenant farmer, in order to enable the latter to pledge his farming stock as security for his rent, a purpose for which pignus was not conveniently applicable: subsequently it came to be recognised as a universal mode of pledge, of use between debtors and creditors of every kind, though the rights of the latter, in cases other than that of landlord and tenant, were protected by remedies differing slightly in form and name from those then employed: for these, and the relation between them, reference should be made to Bk. iv. 6. 7, ib. 15. 3 inf., and the notes on both passages.
Hypotheca possessed great advantages over the earlier forms of pledge, of which fiducia was quite obsolete in the time of Justinian. The pledgor was never deprived of the use and possession of his property, and yet the creditor was absolutely secured. The class of pledgable objects was largely augmented: money could now be lent on the security of things not yet in existence, e. g. future crops and expectations (' et quae nondum sunt, futura tamen sunt, hypothecae dari possunt, ut fructus pendentes, partus ancillae, fetus pecorum' Dig. 20. 1. 15), or of mere incorporeal rights, real and personal (Dig. ib. 9. 1; ib. 11. 2; Dig. 13. 7. 18. pr.). Moreover it became possible to create a general mortgage, which was done by statute in favour of many classes of persons: e. g. of a wife, or other person who gave a dos, over the property of her husband, to secure its return, and of pupils over that of their guardians. So too the landlord of a house had a tacit hypothec over things 'invecta and illata,' as security for his rent: 'eo iure utimur, ut quae in praedia urbana inducta illata sunt, pignori esse credantur, quasi id tacite convenerit: in rusticis praediis contra observatur' Dig. 20. 2. 4. pr. : and the lessor of agricultural land had the same implied right over the crops: 'in praediis rusticis fructus, qui ibi nascuntnr, tacite intelleguntur pignori esse domino fundi locati, etsi nominatim id non convenerit' Dig. ib. 7. pr. Lastly should be noticed the new power of pledging the same property to several persons in succession, though to- do this without notice to prior pledgees rendered the debtor liable to a charge of stellionatus, Dig. 13. 7. 37. 1. Hence, too, questions of collision and priority among competing pledgees, which occupy so large a space in modern Roman law: a subject, however, too wide to be touched upon here.
One result of the general use of hypotheca was the extension of its rules and remedies to pignus. In the time of Ulpian the right of sale had become an essential and inherent part of every pignus: 'etsi non convenerit de distrahendo pignore, hoc tamen iure utimur, ut liceat distrahere, si modo non convenit ne liceat. Ubi vero convenit ne distraheretur, creditor, si distraxerit, furti obligatur, nisi ei ter fuerit denuntiatum ut solvat, et cessaverit' Dig. 13. 7. 4. The remedies again were the same, whether the pledge was effected by pignus or hypotheca: so that in Justinian's time (as he remarks, Bk. iv. 6. 7 inf.), there was but one surviving point of difference between them: if possession of the object pledged passed to the creditor, it was called pignus, if not, hypotheca; cf. Dig. 20. 1. 5. 1 (Marcianus): 'inter pignus et hypothecam tantum nominis sonus differt.' The enumeration of pignus among the iura in re aliena is thus accounted for: it is a right in the property of another, sensu Romano, only qua hypotheca.
The modes in which the right was extinguished require a brief notice. It ceased to exist with the destruction of the object pledged, Dig. 20. 6. 8. pr.: it might be released, without affecting the debt which it secured, and that either by legacy or agreement inter vivos, Dig. ib. 4. 1; ib. 9. 3: and under certain circumstances it could be destroyed or affected by usucapio or limitation of actions: see Dig. 41. 3. 44. 5; Cod. 7. 36. 1; 8. 30. 2. But as a general rule the right of pledge ceases to exist only along with the principal debt: for the ways in which this might occur see Bk. iii. 29 inf. and notes. As to the exercise of the right of sale in particular it should be observed, (1) that the creditor cannot sell until the day fixed for payment has passed; (2) he must give notice to the debtor of his intention to sell, and Justinian even enacted (Cod. 8. 34. 3. 1) that he should be unable to sell until two years had elapsed from notice so given; (3) neither pledgor nor pledgee can become the purchaser; (4) the debtor is entitled to any surplus from the proceeds of the sale after satisfaction of the debt. If no one could be found to purchase at a reasonable price, the pledgee could in Justinian's time (by a kind of reintroduction of the lex commissoria, Cod. 8. 34) petition the Emperor to adjudge him the property in full ownership: but even such adjudication was not final, the debtor being still entitled to redeem within two years from its date.
Possession must be conceived as distinct from ownership or dominium. In most cases, of course, the two are conjoined: the owner has possession of his property. Often, however, they are separated: the landlord owns the soil which his tenant possesses: his solicitor has possession of the title-deeds to his estates: the finder of property possesses it, though another is its owner: and numberless other cases will at once occur in which the owner and the possessor of a thing are different persons. But (it may be argued) though this is so, yet the relation of a person to a thing which he possesses is immaterial for purposes of law: the law recognises no rights less than that of ownership or its fragments. Because I happen to have found a bank note, and then lose it again, I cannot recover it from the second finder: possession in itself is not a legal right at all. If this were the case, law-books would be spared one of their most difficult chapters; but, as a matter of fact, all legal systems treat possession, under certain circumstances, as a right, distinct from and independent of ownership, and guarantee it protection. It remains to see what, under Roman law, those circumstances are.
Mere possession, in itself, is no right at all. A person 'merely' possesses who has the physical power of dealing with a tangible object to the exclusion of every one else, and is aware of such power. Of such a relation between person and thing, by itself, the law takes no notice; but being the foundation of all legally recognised possession it requires to be carefully noted. Very frequently it is called naturalis possessio (e.g. Dig. 41. 2.1. 1), but it is also denoted by the expressions, custodia (Dig. 36. 4. 5. pr.), in possessione esse (Bk. iv. 15. 5 inf.), tenere (Dig. 41. 2. 24), naturaliter possidere (Dig. lb. 12. 1). We shall call it uniformly Detention. For examples of persons who had only Detention, as distinct from possession proper (e. g. the slave, filiusfamilias, agent, borrower, lessee, and depositary) reference may be made to Mr. Poste's Gaius, pp. 641-645. The idea of Detention is limited to certain classes of objects. Nothing can be 'detained' (and therefore, as we shall see, possessed) which is not corporeal; hence no one can stand in this relation to a mere right (p. 209 supr.). The right to interdicts, however, was grounded upon a disturbance in some unlawful manner of the exercise of ownership, and the exercise of other rights, as well as that of ownership, can be unlawfully disturbed; so that it seemed only logical that here too unwarranted interference should be guarded against by the same remedies. Accordingly, the enjoyment of iura in re aliena was protected by possessory interdicts; they were deemed to be quasi-possessed ('iuris quasi possessio' Dig. 8. 5. 10, 'possessionem vel corporis vel iuris' Dig. 43. 26. 2. 3). The expression, as Savigny remarks, is an improper extension of analogical language; quasi possessio indicates the exercise of a ius in re aliena, being related to the latter in the same way as possession stricto sensu is to dominium. Nor is it possible to 'detain ' an object which, though corporeal, is indeterminate, such as an uncertain portion of a thing. Finally, the idea of detention being that of exclusive physical control, we have the rule 'plures eandem rem in solidum possidere non possunt;' i. e. if we read that a previously existing possession (and a fortiori detention) still continues, no new possession (and a fortiori detention) can possibly have commenced; and conversely, if the law recognises a new possession, the previous possession must have ceased to exist.
When to this Detention is superadded a further (mental) element, it becomes Possession, an interest protected by special legal remedies, viz. interdicts. That mental element is the intention, on the part of the detainer, of dealing with the thing detained as owner; of exercising over it, on his own behalf, the rights which an owner exercises on his. This intention is usually called the animus domini or sibi habendi; the phrase does not occur in the authorities, the nearest approach to it being Theophilus' nipnaQai «m T6 fy>xn 8*<"rofowor «ar»X«<". It should carefully be marked, that it is an intention; it has nothing to do with a belief that one is owner (opinio or cogitatio domini), for the possessing thief or robber is as capable of the animus domini as the most innocent possessor, and is as fully entitled to the protection of interdicts as the latter; 'adversus extraneos vitiosa possessio prodesse solet' Dig. 41. 2. 53. In other words, possession is independent of bona fides: 'it is possession, whether iusta or iuiusta;' the ius possessionis, the right involved in possession, the right protected by interdicts, is quite distinct from and independent of the ius possidendi, or right to possess, which belongs not to the law of possession, but of ownership.
Possession, then, as a legal right, consists of two elements, deten