A case of pledge (pignus) of the old type, where the creditor § 72. 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' in respect of the property in which he (the creditor) is interested (pignus praetorium). A right of pledge entitles the pledgee (1) to possess the thing pledged; (2) to realize its value (by sale, as a rule) for the purpose of satisfying his claim. As regards the right to possess (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 to possess does not arise until it becomes necessary for the creditor to assert his other right, his right, namely, to realize the value of the thing pledged. 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 rest re the surplus (hyperocha) to the debtor (§ 79 I. d). The so-called 'lex commissoria,' or 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-the 'impetratio dominii'-adjudge him the ownership of the thing at a certain valuation with a view to satisfying his claim. 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 the pledgor and the pledgee by which the latter 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 by him in lieu of interest. The owner of the pledge may transfer his ownership to a third § 72. party, but of course the right of pledge already created in favour of the creditor continues to hold good as against the new owner. In the same way the owner may pledge the identical thing to several persons in succession. Successive rights of pledge of this kind may also arise by virtue of a statute. No one of several successive pledgees 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 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 settled, 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 object to which these subsequent rights related having thus been done away with, the pledgees are entitled, in lieu of it, to claim the hyperocha, which the prior 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. CHAPTER III. THE LAW OF OBLIGATIONS. I. THE CONception and Contents of an Obligation. § 73. The Conception of an Obligation (Obligatory Right). An obligatory right*, within the meaning of the Roman private § 73. 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 obliga' on can only be asserted against, say, the vendor, if it arises from a sale, the lessor, 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 main point to be observed is that an obligatory right consists, as such, in the fact that a definite other person (the debtor) is bound to do something. Where a real right of mine gives rise to a duty on the part of my opponent—as where my right as owner entitles me to require him to deliver up a thing-such duty can only be regarded as the consequence of my right, whereas in the case of an obligatory right the duty, or obligation, of the debtor constitutes the whole of my right. An obligatory right is simply and solely a right to require a definite other person (the debtor) to act in a particular way. * As to this term, see supra, p. 326, Translator's note. § 78. The right of the creditor manifests itself in the obligation of the debtor, but this obligation does not imply subordination. Therein lies 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, personal subjection, a power of one will to coerce another will. An obligation leaves the debtor free as against his creditor. The debtor is the equal of the creditor. The latter cannot force the debtor, by any private act of his own, to fulfil the obligation. Force can only be applied for that purpose by the state at the suit of the creditor. Inasmuch as an obligation neither implies, nor is intended to imply, subordination, it is confined, according to Roman law, to acts which are reducible to a money value. Obligations are not designed to create any general right of control over all the acts of the debtor. A debtor can, in the last resort, rid himself of every obligation by sacrificing a corresponding portion of his property for the purpose of indemnifying his adversary. An obligation means a deduction, not from a man's liberty, but only from his property. L. 3 pr. D. de O. et A. (44, 7) (PAULUS): Obligationum substantia non in eo consistit ut aliquod corpus nostrum aut servitutem nostram faciat, sed ut alium nobis adstringat ad dandum aliquid vel faciendum vel praestandum. L. 9 § 2 D. de statu lib. (40, 7) (ULPIAN.): Ea enim in obligatione consistere quae pecunia lui praestarique possunt. 874. Plurality of Debtors and Creditors. § 74. Just as several persons may be co-owners in respect of the same thing (p. 323), so several persons may be co-debtors or co-creditors in respect of the same obligation. We have then a case of what is called 'correal obligation.' Where there are several co-debtorsplures rei promittendi-the correal obligation is said to be 'passive'; where there are several co-creditors-plures rei stipulandithe correal obligation is said to be' active.' And just as co-ownership means the common ownership of several persons in the same undivided thing, so correal obligation means the common liability § 74. or right of several persons in respect of the same undivided act. Suretyship (fidejussio, § 80 I. 3) is an example of a correal obligation. The surety and the principal debtor are both liable-the former, however, only as accessory debtor-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 for'. For example: A and B jointly hire a room, or jointly accept a loan or a commodatum, &c., and agree, at the same time, that they shall both be liable for the whole debt, liable, that is, for the whole rent, the whole loan, the restoration of the whole commodatum, &c. The result is a passive correal obligation. Or again: A and B, being co-owners of a house, let their house jointly (or give a loan jointly, &c.), and agree, at the same time, that each of them shall be entitled to recover the whole of what is due under the obligation. The result is an active correal obligation. In all these cases the intention is not to enable the A joint agreement as such (e.g. the joint hire of a room, a joint loan, &c.) only operates in Roman law 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 expressly provides that all the joint parties shall be liable for, or entitled to, the whole. The usual means of creating a correal obligation among the Romans was a joint stipulatio by two or more persons in respect of the same act, the act, namely, which was the object of the obligation. Cp. the passage cited infra, p. 386, pr. I. de duobus reis 3, 16. It is for this reason that correal debtors were called duo pluresve rei promittendi, and correal creditors duo pluresve rei stipulandi. The following are further instances of correal obligation. Argentarii socii (i.e. the ostensible partners in a banking business) are correal debtors or creditors in respect of contracts concluded by each individual socius. Co-owners of a slave, or of an animal that has done damage, VOW. |