BOOK III. Pt. I. Ch. 1. the pledge served for nothing more than an indirect means of pressure upon the debtor, not as a mode of satisfaction for the creditor); later on it was admitted even in the absence of such agreement, and indeed where there was an agreement to the contrary, as especial requisite of the contract of Pledge."-The a Sup., Paul. pledgor is protected in his possession by the possessory interdicts. Isid. orig. v. 25, § 22: Pignus est quod propter rem creditam obligatur, cuius rei possessionem solam ad tempus consequitur creditor, dominium penes debitorem est." Iavol. Si is qui pignori rem accepit, cum de vendendo pignore nihil convenisset, vendidit, . . furti se obligat.-D. 47, 2, 74 (73).3 Gai. ii. § 64-voluntate debitoris intelligitur pignus alienari, qui olim pactus est, ut liceret creditori pignus vendere, si pecunia non solvatur.3 Ulp. Sed et si 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 (debitori) nisi ei ter fuerit denuntiatum, ut solvat, et cessaverit.-D. 13, 7, 4.* 1 A pawn is an obligation entered into by reason of property consigned, the possession alone of which is for a time obtained by the creditor; the ownership is with the debtor. 2 If he that took property in pledge has sold it, when no agreement had been made for the sale of the pledge, . . . he makes himself liable for a theft. ... 3 -the pledge is considered as alienated by the consent of the debtor, who afore agreed that the creditor might sell the pledge if the money were not paid. But even if no agreement has been made concerning the sale of the pledge, yet the rule that we employ is, that there may be a sale, provided there has been no agreement to preclude it; but where it has been agreed that it should not be sold, if the creditor sell, he makes himself liable (to the debtor) for a theft, unless notice to pay have been thrice given to the debtor, and he has delayed. ii. 13, 5. • D. 16, 3, 17, I; 41, 3, 16. BOOK III. Pt. 1. Ch. I. 8. 409, and Bell, s. vv. The increased requirements of commerce led finally to the development of the legal institution of HYPOTHECA, i.e., a ius pignoris originated by a merely informal contract, without transfer of possession, and protected by a Praetorian in rem actio. Gai. Contrahitur hypotheca per factum conventum, cum quis paciscatur, ut res eius propter aliquam obligationem sint hypothecae nomine obligatae; nec ad rem pertinet, quibus fit verbis. -1. 4, D. de pign. 20, 1, 4.' I, Ulp. Proprie dicimus . . . hypothecam, cum non transit nec possessio ad creditorem.-D. 13, 7, 9, 2.2 This was at first recognised and accorded legal protection by the Praetor in the mortgage of the inventory a See Paterson, (invecta et illata)" of the lessee of agricultural land to the lessor, where the employment of the fiducia or of the pignus appeared impossible or impracticable (interdictum Salvianum; later on, the in rem actio Serviana). Cato de re rust. c. 146: 6 -Donicum solutum erit aut ita satisdatum erit, quae in fundo illata erunt, pignori sunto. Ne quid eorum de fundo deportato; si quid deportaverit domini esto.'c. 149 Donicum pecuniam satisfecerit, pecus et familia, quae illic erit, pignori sunto." Gai. iv. § 147 Interdictum quod appellatur Salvianum adipiscendae possessionis causa comparatum est, eoque utitur dominus fundi de rebus. 1 A mortgage is contracted by compact, when a man engages that his property shall by reason of some obligation be liable by way of mortgage; and it matters not in what words it is done. "We rightly speak of a mortgage when not even possession passes to the creditor. 3 'Until discharge or security given, let such things as have been placed on the farm be in pledge. He shall remove none of them from the farm; if he remove aught, it shall belong to the owner.''Until he shall have discharged the amount, the cattle and household that may be there shall be in pledge.' coloni, quas is pro mercedibus fundi pignori But it was therefore progressively extended to all remaining cases of the merely contractual as well as tacit pledge (actio quasi Serviana s. hypothecaria). The same real action which was meant for the protection of the 'hypotheca' was then also allowed to the pledgee, since an hypothecary contract is contained in every pawn; and accordingly Pignus and Hypotheca were placed on the same footing. Ser Inst. iv. 6, § 7: Item Serviana et quasi Ser- Marcian. Inter pignus et hypothecam tantum nominis sonus differt.-1. 5, § 1, D. de pign.3 Whilst therefore the development of the hypotheca 1 The so called interdictum Salvianum has been provided for the obtaining of possession, and it is employed by the owner of a farm in respect of the property of the tenant which the latter has engaged should be security for the rent of the farm. 2 The Servian and quasi-Servian (also called the hypothecarian) actions likewise derive their origin from the Praetor's own jurisdiction. Now a person avails himself of the Servian action in respect of property of a tenant which by pledge-right is held by him as security for rent; whilst the quasi-Servian action is that whereby creditors sue for things pledged or mortgaged. There is no difference between a pledge and a mortgage, so far as the hypothecarian action is concerned; for the property which by agreement between creditor and debtor has to answer for the debt is in either case designated by this term. 3 Between Pledge and Hypothec there is no other difference than that of the name. BOOK III. Pt. 1. Ch. 1. a Pt. 1. Ch. I. BOOK III. raised the ius pignoris in things in general to a jus in re aliena, it on the other hand made this right, as a non-real one, also applicable to incorporeal portions of property (e.g., claims), with which hitherto real security could not be given. § 114. § 101. PRE-REQUISITES AND ORIGIN OF THE Every pledge-right supposes a claim-although one merely natural "—of the person entitled to the pledge (the pledge creditor) whose accessorium it is; but another can also on behalf of the debtor mortgage his property to the creditor of such. Marcian. Res hypothecae dari posse sciendum est pro quacumque obligatione, sive mutua pecunia datur sive dos sive emptio vel venditio contrahatur vel etiam locatio et conductio vel mandatum, et sive pura est obligatio vel in diem vel sub condicione, et sive in praesenti contractu sive etiam praecedat; sed et futurae obligationis nomine dari possunt, . . . et vel pro civili obligatione vel honoraria vel tantum naturali. Dare autem quis hypothecam potest sive pro sua obligatione sive pro aliena.-1. 5 pr., § 2, D. h. t. (= de pign. 20, 1).' As object of the pledge, or pledge-right, can be Gai. Et quae nondum sunt, futura tamen sunt, hypothecae dari possunt, ut fructus pen 1 It should be known that property can be given by mortgage for whatever obligation, whether a loan be given, or a dowry, or a purchase and sale contracted, or a letting and hiring, or a commission, and whether the obligation be absolute, or temporal, or conditional; and whether as embodied in the contract, or as preceding it; but mortgages can also be given for future obligations . . . and even for a civil, or a magisterial, or only a natural obligation. Now a man can give a mortgage either for his own obligation, or for another man's. dentes, partus ancillae, fetus pecorum.-1. 15 1 (2) Not only such, but in general, all alienable proprietary rights, transferable, that is at least as regards exercise, e.g., usufruct, claims; since also in respect of these a right of sale obtains in favour of the creditor. Id.: Quod emptionem venditionemque recipit, etiam pignerationem recipere potest.-1. 9, § I eod.2 Marcian. Ususfructus an possit pignori hypothecaeve dari, quaesitum est, sive dominus proprietatis convenerit, sive ille qui solum usumfructum habet. Et scribit Papinianus tuendum creditorem, et si velit cum creditore proprietarius agere 'non esse ei ius uti frui invito se,' tali exceptione eum praetor tuebitur 'si non inter creditorem et eum, ad quem ususfructus pertinet, convenerit, ut ususfructus pignori sit'; nam et cum emptorem ususfructus tuetur praetor, cur non et creditorem tuebitur? Eadem ratione et debitori obiicietur exceptio.-1. 11, § 2 eod.3 Paul. Si convenerit, ut nomen debitoris mei pignori tibi sit, tuenda est a praetore haec con And things can be mortgaged which do not exist, but will do so, as hanging fruits, the children of a woman-slave, the offspring of cattle. That which admits of being purchased and sold can also be the object of a pledge. 3 Whether a usufruct can be pledged or mortgaged has been matter of doubt, no matter whether agreement have been made by the ground owner or by him who has the mere usufruct. Pap. writes that the creditor should be protected, and if the ground owner wish by action against him to assert that such person has no right to the usufruct against his will,' the Praetor shall protect him by the plea, 'unless an agreement has been made between the creditor and him to whom the usafruct belongs, that the usufruct shall be pledged.' For if the Praetor protect the purchaser of the usufruct, why shall he not also protect the creditor? Upon the same ground will the plea be urged against the debtor also. BOOK III. Pt. 1. Ch. 1. |