The Ancient Library

Scanned text contains errors.


to the contrary, but such sale did not affect the right of the pledgee. (Dig. 13. tit. 7. s. 18. §.2.) If the pledger sold a movable thing that was pig-nerated, or that was specially hypothecated, with­out the knowledge and consent of the creditor, he was guilty of furtura. (Dig. 47. tit. *2. s. 19. §6, and s. 68. pr.) If the pledger at the time of a pignus being given was not the owner of the thing, but had the possession of it, he could still acquire the property of the thing by nsucapion, for the pledging was not an interruption of the usucapio. [ possess 10.]

The creditor could keep possession of a pigner-ated thing till his demand was fully satisfied, and he could maintain his right to the possession against any other person who obtained possession of the thing. He could also pledge the thing that was pledged to him ; that is, he could transfer the pledge. (Dig. 20. tit. 1. s. 13. § 2.) He had also the right, in case his demand was not satisfied at the time agreed on, to sell the thing and satisfy his demands out of the proceeds (jus distwhendi sive vendendi pignus}. (Cod. 8. tit. 27 (28).) This power of sale might be qualified by the terms of the agreement ; but a creditor could not be de-

o *

prived of all power of sale ; nor co\ild he be com­pelled to exercise his power of sale. Gains, (ii., G4) illustrates the maxim that he who was not th,e owner of a thing, could in some cases sell it, by the example of the pledgee selling a. thing pledged ; but he properly refers the act of sale to the. will of the debtor, as expressed in the agreement of pledging ; and thus in legal eftect^ it is the debtor who sells by means of his agent,, the- creditor. An agreement that a pledge should be forfeited in case the demand was not paid at the time agreed on, was originally very common ; but it was declared by Constantine, a. d. 326, to be illegal. [commis-8OR.IA lex.] In case of a sale the- creditor, ac­cording to the later law, must give the debtor notice of his intention to sell, and after such notice he must wait two years before he could legally make a sale. If any thing remained over after satisfying the creditor,, it vras his duty to give it to the debtor ; and if the price was insufficient to satisfy the creditor's demand, his debtor was still his debtor for the remainder. If no purchaser at a reasonable price could be found, the- creditor might become the purchaser, but still the debtor had a right to redeem the thing within two years on condition of fully satisfying the creditor. (Cod. «.. tit. 84. s. 3.)

If there were several creditors to whom a thing-was pledged which was insufficient to satisfy them all, he whose pledge was prior in time had a pre­ference over the rest (potior est in piynore qui prim credidit pecuniam et accepit hi/potkecamf Dig. 20. tit. 4. s. 11). There were some exceptions to this rule ; for instance, when a subsequent pledgee had lent his money to save the pledged thing from de­struction, he had a preference over a prior pledgee. (Dig. 20. tit. 4. s. 5, 6.) This, rule has been adopted in the English Law as to money lent an ships and secured by bottomry bonds.

Certain hypothecae, both tacitae and founded on contract, had a preference or priority (privileyium) over all other claims. The Fiscus had a preference in respect of its claims ; the wife in respect of her dos ; the lender of money for the repair or restoration of a building ; a pupillus with whose money a thing had been bought. Of those hypo-


thecae which were founded on contract, the fol­lowing were privileged: the hypothecae. of those who had lent money for the purchase of an im­movable thing, or of a shop, or for the building, maintaining, or improving of a house, &tf., arid had contracted for an hypotheca on the thing ; there was also the hypotheca which the seller of an immovable thing reserved by contract until he Avas paid the purchase-money. Of these claimants, the Fiscus came first ; then the wife in respect of her dos; and then the other privileged creditors, ac­cording to their priority in point of time.

In the case of unprivileged creditors, the ge­neral rule as already observed was, that priority ia time gave priority of right. But an hypotheca which could be proved by a writing executed in a certain public form (instrumentum puUice con-fectum\ or which was proved by the signatures of three reputable persons (instrumentum quasi puhlice eonfectiwi)) had a priority over all thosa which could not be so proved. If several hypo­thecae of the same kind were of the same date, he who was in possession of the thing had a priority.

The creditor who had foy any reason the priority o-ver the rest, was intitled to be satisfied to the full amount of his claim out of the proceeds of the thing pledged. A subsequent creditor could ob­tain the rights of a prior creditor in several ways. If he furnished the debtor with money to. pay off the debt, on the condition of standing in his place,, and the money was actually paid to the prior creditor, the subsequent creditor stepped into tho place- of the prior creditor. (Dig. 20. tit. 3. s. 3.) Also, if he purchased the thing on the condition that the purchase-money should go^ to satisfy a prior creditor, he thereby stepped into his place. A subsequent creditor could also, without the con­sent either of a prior creditor or of the debtor, pay off a prior creditor, and stand in his place to. the amount of the sum so paid. This arrangement, however,, did not affect the rights .of an inter­mediate pledgee. (Dig. 20. tit. 4. s. 16.)

The creditor had an actio hypathecaria or pig-noraticia in, respect of the pledge against every person who. was in possession of it and had not a better right than hip-self. This right of action existed indifferently- in the case of Pignus and Hypotheca. The Kypothecaria actio was designed to give effect to the right of the pledgee, and con­sequently for the delivery of the hypothecated, thing or the payment of the debt. A creditor what had a Pignus, had also a right to the Interdictunv retinendae et recuperandae possessionis, if he was disturbed in his possession.

The pledgee was bound to restore a pignus on payment of the debt for which it had been given ; and up to that time he was bound to take proper care of it. On payment of the; debt, he might be sued in an actio pignoraticia by the pledger, for the restoration of the thing, and for any damage that it had sustained through his neglect. The remedy of the pledgee against the pledger for his proper costs and charges in respect of the pledge, and for any dolu-s or culpa on the part of the pledger relating thereto, was by an actio pigna-raticia eontraria.

The pledge was extinguished if the thing perished, for the loss was the owner's; it was also extinguished if the thing was changed so as na longer to be the same, as if a man should have all the timber in a merchant's }rard as a security, and

3 n 3

About | First | English Index | Classified Index | Latin Index | Greek Index



page #  
Search this site
All non-public domain material, including introductions, markup, and OCR © 2005 Tim Spalding.
Ancient Library was developed and hosted by Tim Spalding of