pledge), but such a traditio is not necessary. What is essential for § 59. giving rise to a right of pledge, is not the transfer of possession as such, but merely the agreement to hypothecate (ut res hypothecae sit). L. 9 § 2 D. de pign. act. (13, 7) (ULPIAN.): Proprie pignus dicimus, quod ad creditorem transit, hypothecam, cum non transit, nec possessio, ad creditorem. L. 5 § 1 D. de pign. (20, 1) (MARCIAN.): Inter pignus autem et hypothecam tantum nominis sonus differt. II. The Rules of Law concerning Pledges. A right of pledge originates: (1) in ordinary cases, either in an agreement (pignus conventionale), or in a testamentary disposition (pignus testamentarium); (2) in extraordinary cases, either in a statute (like the hypotheca in favour of the claims of the fiscus over the entire estate of persons indebted to it, or the hypotheca in favour of the claims of persons letting houses over the invecta et illata, i. e. the furniture, of their tenants so-called pignus tacitum or legale), or in the seizure of a debtor's property in the course of a judicial execution (pignus judiciale). A case of pledge (pignus) of the old type, where the creditor obtains actual control, or mere detention, of a thing by way of security for his claim, without any right of sale or real right of action, occurs, when the praetor, with a view to giving a creditor provisional security for his claims, grants him 'missio in possessionem' against such of the debtor's property as he (the creditor) has an interest in (pignus praetorium). A right of pledge entitles the pledgee: (1) to have possession of the thing; (2) to realize the value of the thing for the purpose of satisfying his claim (which he does, as a rule, by selling it). As to the right of possession (which is protected either by a petitory action, viz. the actio in rem hypothecaria, or by possessory remedies, viz. the possessory interdicts), where the thing is actually delivered to the pledgee in pledge, it arises at once on the delivery; in cases of a mere hypotheca, however, the right does not arise until it becomes § 59. necessary for the creditor to assert his right to realize the value of the thing. As to this latter right (the right of sale), it never arises till the claim is due, and the debtor, in spite of notice, or judgment, remains in default. Having carried out the sale, the creditor pays himself out of the proceeds. If the amount realized is in excess of his claim, he must restore such surplus ('hyperocha ') to the debtor (§ 66). The so-called 'lex commissoria' (foreclosure clause), by which it was agreed that in case of non-payment the pledgee should become ipso jure owner (v. note 2), was declared void by a law of the Emperor Constantine. In case of necessity, however, where a sale was impracticable, the court could, on the petition of the pledgee, adjudge him the ownership of the thing at a certain valuation ('impetratio dominii'). The hyperocha in such a case would be the excess of the assessed value over the amount of the debt secured by the pledge. 'Antichresis' is the name given to an arrangement between pledgor and pledgee by which the pledgee not only obtains possession together with a right of sale, but also the right to take all the fruits and profits yielded by the thing, such fruits and profits to be accepted in lieu of interest. The owner of the pledge may transfer his ownership to a third party, but the pledge-right, already granted to the creditor, holds of course equally good against the new owner. In the same way the owner may pledge the same thing to several persons in succession. Successive rights of pledge of this kind may also be created by statute. In such cases no pledgee is entitled to exercise his right of pledge till the prior pledgee has been satisfied. Priority is determined, on principle, by reference to the time when the several rights were respectively created (prior tempore potior est jure)—a principle which was not however adhered to by Roman law in cases of so-called 'privileged' rights of pledge, such as existed, for instance, in favour of the claims of the fiscus for public dues. A right of pledge is extinguished, as soon as the debt is paid, or the creditor obtains satisfaction by realizing the value of the pledge (by sale). But it is a rule that till the entire debt has been discharged, the whole pledge remains liable for the unpaid balance (pignoris causa est individua). If a prior pledgee exercises his right of sale, subsequent rights of pledge are thereby destroyed. The § 59. object of these rights having been done away with, the pledgees are, in lieu thereof, entitled to the hyperocha, which the preceding pledgee is accordingly bound to hand over. L. I C. si antiquior creditor (8, 20) (ALEXANDER): Si vendidit is qui ante pignus accepit, persecutio tibi hypothecaria superesse non potest. § 60. CHAPTER III. THE LAW OF OBLIGATIONS. I. THE CONCEPTION AND CONTENTS OF AN OBLIGATION. § 60. The Conception of an Obligation (Obligatory Right). AN obligatory right, within the meaning of Roman private law of the classical period, is a right to require another person to do some act which is reducible to a money value. It is invariably directed against a determinate person, viz. the debitor, or debtor. Ownership may be asserted against all the world, but an obligation can only be asserted against, say, the vendor, if it arises from a sale, or the person who lets, if it arises from a contract of letting and hiring, and so forth. Obligatory rights are rights which only operate relatively, viz. as against the person of the debtor. The obligation which rests on the debtor does not imply subordination. This is what constitutes the difference between obligations, on the one hand, and family rights and the rights of public officials, on the other. Family rights and public rights produce subordination. An obligation leaves the debtor free as against the creditor. Both the parties are equal. The creditor cannot force the debtor, by any private act, to fulfil his obligation. Such force can only be applied by the state, at the suit of the creditor. Inasmuch as an obligation neither implies, nor is intended to imply, subordination, it is confined to acts which are reducible to a money value. Obligations are not designed to create any general control over all the acts of the debtor. A debtor can, in the last resort, rid himself of every obligation by sacrificing a corresponding § 60. L. 3 D. de O. et A. (44, 7) (PAULUS): Obligationum substantia L. 9 § 2 D. de statu lib. (40, 7) (ULPIAN.): Ea enim in obliga- § 61. Plurality of Debtors and Creditors. Just as several persons may be co-owners in respect of the same § 81. thing (p. 228), so several persons may be co-debtors or co-creditors in respect of the same obligation ('correal obligation'). Co-debtors are called 'plures rei promittendi' (passive correal obligation). Co-creditors are called 'plures rei stipulandi' (active correal obligation). And just as co-ownership means the common ownership of several persons in the same undivided thing, so correal obligation means the common liability or right of several persons in respect of the same undivided act. Suretyship (fidejussio, § 67 I, 3) is an example of a correal obligation. The surety and the principal debtor are both liable for the whole of the same debt. Besides suretyship, the most important source of correal obligations are joint agreements in which the joint liability or right of all is expressly provided for1. For example: A joint agreement as such (e. g. the joint hire of a room, a joint loan, &c.) only operates to make each of the joint parties liable, or entitled, pro parte. The result, therefore, is the creation of a series of rights or liabilities, each of which exists in respect of part of the obligation only, and has nothing in common with the others. A joint agreement does not give rise to a correal obligation, unless it is, at the same time, expressly provided that all the joint parties shall be liable for, or entitled to, |