§ 57. deteriorate the property; (3) he must give his landlord notice of his intention to dispose of his rights as perpetual lessee so that the landlord may, if he choose, exercise his right of pre-emption (jus protimiseos). If the emphyteuta fail in any of these duties, e. g. if his rent be three years in arrear, the landlord (dominus emphyteuseos) may deprive him of his rights as perpetual lessee (right of eviction). As compared with servitudes, there are two points which distin guish emphyteusis: (1) the emphyteuta stands, not only economically, but, in the main, also legally in the position of an owner; emphyteusis therefore confers a considerably wider range of rights than the servitudes; it is intended to take the place of ownership; (2) emphyteusis is heritable and alienable. As distinguished from a lessee for a short term of years, who has merely an obligatory right against the lessor, the emphyteuta has a real right in his land available against everybody. § 3 I. de loc. et conduct. (3, 24): Adeo autem familiaritatem aliquam inter se habere videntur emptio et venditio, item. locatio et conductio, ut in quibusdam causis quaeri soleat, utrum emptio et venditio contrahatur, an locatio et conductio? Ut ecce de praediis, quae perpetuo quibusdam fruenda traduntur, id est, ut quamdiu pensio sive reditus pro his domino praestetur, neque ipsi conductori, neque heredi ejus cuive conductor heresve ejus id praedium vendiderit, aut donaverit, aut dotis nomine dederit, aliove quo modo alienaverit, auferre liceat. Sed talis contractus, quia inter veteres dubitabatur, et a quibusdam locatio, a quibusdam venditio existimabatur, lex Zenoniana lata est, quae emphyteuseos contractui propriam statuit naturam, neque ad locationem, neque ad venditionem inclinantem, sed suis pactionibus fulciendam. § 58. § 58. Superficies. Superficies stands to houses in the same relation as emphyteusis to agricultural land. Superficies, in Roman law, is a perpetual lease of building land, subject to the payment of annual rent § 58. (solarium). On this land the superficiary erects a house. He builds it with his own materials. By the rules of accession, therefore, the ownership of the house vests in the owner of the soil (superficies solo cedit). A superficiary, however, has a real right, for himself and his heirs, to live in the house and exercise the rights of an owner therein for the specified term of years (say, ninetynine years) or for ever, as the case may be. Hence the legal position of the superficiary is the same as that of the emphyteuta. Like the emphyteuta he has the same remedies as an owner (in the form of actiones utiles), and his possession is expressly protected by the interdictum de superficie. He is entitled to execute repairs and alterations in the house, provided he does not deteriorate the property. He has the control of the house, and has therefore, together with the essential rights of an owner, the juristic possession of the house (corpus and animus) in the same way as though he were owner thereof1. The remarks made above (at the end of § 57) in reference to emphyteusis are equally applicable to the difference between superficies and servitudes, on the one hand, and letting and hiring, on the other hand. The legal recognition of superficies is based on the praetorian law. L. 1 pr. D. de sup. (43, 18): Ait praetor: UTI EX LEGE 1 Degenkolb, Platzrecht u. Miete (1867). $ 59. $59. Pledge. A right of pledge is a real right which enables the person entitled to secure payment of a claim through the medium of a thing. I. History of Pledges. In early Roman law, a right of pledge, in the proper sense of the term, i. e. in the sense as we have just defined it, was unknown. It is true there were certain juristic acts the economic result of which was the creation of a pledge, in other words, the securing of a claim by means of a thing. But there was no juristic act whose formal object it was to create a right of pledge over a thing. 1. Fiducia. If a person wished to obtain credit by giving his creditor security for his claim, he might effect his purpose by mancipating a thing to the creditor, i. e. by conveying to him, by an imaginaria venditio nummo uno (sup. pp. 33, 34) the ownership of the thing, subject, however, to an understanding that as soon as he (the debtor) discharged his liability, the creditor should reconvey the thing to him. The mancipatio was a mancipatio on trust, it was the 'fiducia' which we have already described (p. 34). In this transaction the position of the creditor was safe enough. He was the owner of the thing, and was therefore, in strict law, entitled to deal with it as he liked. He might, for instance, sell it in satisfaction of his claim, if the debtor defaulted. But, on the other hand, the position of the debtor was unsatisfactory. Even though he duly paid his debt, he could never be sure of recovering the property he had parted with as a security for his debt. The creditor might, meanwhile, have alienated it, given it away, sold it, or exchanged it. True, the creditor was, in such cases, bound to compensate him, but as regards the third party who had acquired the property, the debtor had no remedy, for the third party was full and lawful owner of the thing. Thus the debtor could only obtain compensation, but not the thing itself. What he wanted was a real right to claim restoration of his property, which should be available against any third party into whose posses sion his property might come1. But the drawback of the transaction, § 59. as regards the debtor, was precisely this that he had parted with the ownership which would have given him the real right he wanted. It was for this reason that a second method of giving creditors security for their claims came into use, to wit, pignus. 2. Pignus. It was open to the debtor to transfer the thing, which was intended to serve as the creditor's security, by mere traditio in such a way as to confer on the creditor, not the ownership of the thing (not even the bonitary ownership), but simply the actual control, the complete actual control (the juristic possession) of the thing. Such a relation, ship was called 'pignus.' Here the debtor's position was satisfactory enough. He retained his ownership and, with it, a real right to recover his property from any one who obtained possession of it. As soon as he paid his debt, no one had a right to withhold the thing from him. But the position of the creditor was most unsatisfactory. True, he had actual possession of the thing, and the praetor protected his possession by means of the possessory interdicts. But he had no real right in the thing, and could not, therefore, make use of the ordinary in rem actio against third parties. And, worst of all, he had no right to dispose of the thing with a view to satisfying his claim. Even though his debtor were in default, he could not sell the thing and recoup himself out of the proceeds. And if the debtor preferred leaving the thing with the creditor to paying his debt, the pignus was of no use to the creditor at all. The problem therefore was to find a transaction under which, though the debtor retained the ownership of the thing, and, with it, a real right to recover it from third parties, the creditor should nevertheless acquire a right in the thing, the The possibility of usureceptio (p. 241, n. 1), which presupposed possession on the part of the debtor, afforded but scant protection. Hence it was sometimes agreed that, in default of payment, the ownership in the pignus should (by way of penalty) pass to the creditor (lex commissoria.) The so-called 'pactum venditionis,' on the other hand (i. e. the T agreement by which the creditor was § 59. right, namely, if necessity arose, to realize its value for the purpose of satisfying his claim, in a word, a right of pledge, in the true sense of the term. This problem was solved with the aid of the praetorian edict. 3. Hypotheca. The debtor could enter into an agreement with the creditor (without either mancipatio or traditio) that certain things belonging to him (the debtor) should serve the creditor as a 'hypotheca,' i. e. should serve as a means of satisfying the creditor's claim, if he (the debtor) failed to pay. Such a relation was called 'hypotheca.' Both the name and the nature of hypotheca were derived from Greek law. Under the old Roman law such an agreement was totally void. The praetor, however, made it valid—in the first instance, in cases where tenant-farmers had 'hypothecated' their farming-stock (invecta et illata) to their landlords. In such circumstances the praetor enabled the creditor to obtain possession of the things pledged by granting him the so-called 'interdictum Salvianum,' as well as an ordinary legal remedy called the 'actio Serviana.' The same protection was then extended to any person to whom property had been hypothecated by another ('actio quasi Serviana' or 'actio in rem hypothecaria). Thus, according to the praetorian law, a hypotheca gave the creditor, in the first place, a real right of action, which enabled him, on non-payment of the debt, to obtain possession of the thing hypothecated; and, in the second place, it gave him a right of sale, i. e. a right to realize the value of the thing for the purpose of satisfying his claim. Thus the creditor had all the rights he required, and, conversely, the interests of the debtor were protected by the fact that he retained his ownership and, with it, the real right to recover his property from any third party into whose hands it might come. A genuine right of pledge had thus been developed. The hypothecary agreement was now an agreement whose object it was, formally as well as practically, to create a right of disposing of a thing not one's own, to create, in a word, a right of pledge. Of course an agreement of hypotheca may be accompanied by the traditio of the thing into the possession of the creditor ('pignus,' |