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tection, a new form of real security, called pignus, came into existence, the transaction consisting in mere delivery (traditio) of possession of the object (as distinct from its ownership) from debtor to creditor, with the understanding that the possession should be redelivered on payment of the debt: 'pignus est, quod propter rem creditam obligatur, cuiusque rei possessionem solum ad tempus consequitur creditor, dominium penes debitorem est' Isidor. orig. 5. 25,
proprie pignus dicimus, quod ad creditorem transit, hypothecam, cum non transit, nec possessio, ad creditorem' Dig. 13. 7. 9. 2. In origin perhaps pignus was regarded less as a form of security than as a device by which the debtor, being deprived of the possession and enjoyment of property, would be strongly induced to make every effort to discharge his liability as soon as possible. This conjecture is strengthened by the fact that a right of sale was not incidental to a pignus, as such; if the creditor had it at all, it was only by express agreement (Bk. ii. 8. i supr. from Gaius ii. 64), and to sell it without such right was theft in law: 'si is qui pignori rem accepit, cum de vendendo pignore nihil convenisset, vendidit .... furti se obligat' Dig. 47. 2. 74. As a matter of common right, the creditor was entitled only to retain possession of the object pledged; he might not use it: 'si pignore creditor utatur, furti tenetur' Dig. ib. 54; cf. Bk. iv. 1. 6 inf.: but where the object was a fruitbearing thing, it was often agreed that the pledgee should be entitled to the fruits in lieu of interest: the pignus was then called specifically antichresis.
Pignus then, in itself, is not a ius in re aliena. The sole right which the pledgee could assert against the world was the right of possession, and this is never treated as a ius in re aliena by the Roman jurists. The right of sale, as has been observed, rested only upon specific agreement: and even where it had been stipulated for the system had grave flaws. No object could be pledged in this manner which could not be possessed. In relation to some other species of property pignus was no real security at all: even if the pledgee were in possession of a praedium Italicum, the pledgor could mancipate it to a third person (the transaction not being required to be on the land, Gaius i. 121), who could recover it by real action. Lastly, if the pledgee proposed to exercise his right of sale, he could give no better title than he had himself: all that he could transfer to the vendee was possession. This, it is true, would in time be converted by usucapio into dominium, and in the meanwhile the possessor would be sufficiently protected by the actio Publiciana (Bk. iv. 6. 4 and notes inf.); but the inability of a pledgee to make a good title as 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 paciscatur, ut res eius propter aliquam obligationem sint hypothecae nomine obligatae : nec ad rem pertinet, quibus fit verbis' Dig. 20. 1. 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. I; ib. II. 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 nascuntur, 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. I; 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.
· EXCURSUS III.
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. I. I), 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. ib. 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 ;