pignus

pignus, ŏris and ĕris (old form in plur.: pignosa pignora eodem modo quo valesii, auselii ... dicebantur, Fest. p. 213 Müll.), n. [root pac-, of pango; cf. paciscor], a pledge, gage, pawn, security, mortgage (of persons as well as things).

• I Lit.: opponere se pigneri, Plaut. Ps. 1, 1, 85 (87): ager oppositus est pignori, Ter. Phorm. 661: servus, quem hic reliqueram Pignus pro me, Plaut. Capt. 5, 1, 19 (940): quo facto pignore animos centurionum devinxit, Caes. B. C. 1, 39: rem alicujus pignori accipere, Tac. H. 3, 65: pignora apud se deposita persequi et vindicare, Paul. Sent. 5, 26, 4: sub pignoribus mutuas pecunias accipere, Dig. 13, 7, 12: habere aliquid pignori, ib. 20, 4, 2: liberare pignus a creditore, ib. 20, 4, 4: pignoribus cavere alicui, ib. 43, 3, 2: aurum pignori apud aliquem ponere, ib. 13, 7, 27: viginti milia faenus pignoribus positis, income from mortgages, Juv. 9, 141.—Esp., of the security for the payment of his fine, which was taken by the consul of a senator who failed to attend in the Senate: pignus auferre, Cic. de Or. 3, 1, 4: pignoribus terreri, Crass. ib.; so, senatores pignoribus cogere, Cic. Phil. 1, 5, 12: pignora capere, Liv. 3, 38, 12; of hostages, id. 33, 22: marium pignora, male hostages, Suet. Aug. 21: pignus praetorium, the security which the praetor took as a guarantee for the preservation of a thing when he put it in the possession of a creditor, or fidei commissarius, Dig. 13, 7, 26; 41, 5, 12.—
• • • 2 Esp., in phrases.
    • • • α Pignus capere, to take a pledge or security for payment: certis verbis pignus capiebatur, Gai. Inst. 4, 29; 26 al.—
        • β Pignora capere, to issue execution, make seizure of property: Vettium, pignoribus captis, cojecit in carcerem, Suet. Caes. 17: eorum, qui debita confessi sunt, pignora capi et distrahi possunt, Paul. Sent. 5, 5 A, 4: per vim debitoris sui pignora, cum non haberet obligata, capere, id. ib. 5, 26, 4.—
        • γ Pignoris capio, a proceeding by which the summary collection of certain debts was secured, Gai. Inst. 4, 26 (v. Sandars ad Just. Inst. introd. § 96).—
  • B Transf.
  • • 1 The object of a wager, a wager, stake: da pignus, ni ea sit filia, lay a wager, bet, Plaut. Ep. 5, 2, 34 (699); so id. ib. 36 (701): cum illo dare, id. Bacch. 4, 9, 133 (1057): pignore certare cum aliquo, Verg. E. 3, 31: quovis pignore contendere, to lay any wager, bet any thing, Cat. 44, 4: et quaerit posito pignore vincat uter, Ov. A. A. 1, 168: in quodvis pignus vocare, ni, etc., Gell. 5, 4, 2: ponere pignus cum aliquo de re aliquā, Val. Max. 4, 3, 3.—
    • 2 A contract in which security is given, Dig. 13, 7, 1; 20, 6, 3.—
• II Trop.
• • A A pledge, token, assurance, proof: magnum pignus ab eo rei publicae datum, se, etc., Cic. Phil. 1, 2, 4: pignora voluntatis, id. Cael. 32, 78: injuriae, id. Phil. 13, 3, 6: societatis, Tac. H. 4, 61: sceleris, id. ib. 4, 57: imperii, id. ib. 3, 72: reconciliatae gratiae pignus, Curt. 6, 7, 35: pignora da, genitor, per quae tua vera propago Credar, sure tokens, Ov. M. 2, 38; 5, 247; 7, 497: in vultu pignora mentis habet, id. A. A. 2, 378: digito pignus fortasse dedisti, i.e. a ring, Juv. 6, 27.—
  • B Concr.
  • • 1 Children, parents, brothers and sisters, relatives, as pledges of love (only after the Aug. period): nunc tibi commendo communia pignora, natos, Prop. 4 (5), 11, 73; Ov. M. 11, 543: prolemque gemellam Pignora bina dedi, id. H. 6, 121: tot natos natasque et pignora cara nepotes, id. M. 3, 134: ascita pignora, Stat. S. 2, 1, 86: pignora conjugum ac liberorum, Liv. 2, 1, 5: obsecratio illa judicum, per carissima pignora, utique, si et reo sint liberi, conjux, parentes, utilis erit, Quint. 6, 1, 33: habens filiam, uxorem, nepotem, sorores, interque tot pignora veros amicos, Plin. Ep. 1, 12, 3; Tac. A. 12, 2: proxima pignora, id. ib. 15, 36: ne in conjugem, in familiam, in cetera pignora ejus saeviret, id. ib. 16, 26; id. G. 7: frangi aspectu pignorum suorum, id. Agr. 38.—Hence, in gen.,
    • 2 Any thing especially valuable or dear: si quis post pignera tanta Pompeio locus est, Luc. 7, 376.—
    • 3 Poet. transf., a graft, scion, Pall. Insit. 109.

pīgnus, oris u. eris, n., das bedungene Pfand, Unterpfand, Faustpfand (hingegen arrabo = der Kaufschilling, s. Hieron. in epist. ad Ephes. 1, 1, 14), I) eig.: A) im allg.: pignori dare servum, praedium, ICt.: pignori esse, verpfändet sein, Curt.: pignori opponere, verpfänden, se, Plaut., od. agrum, Ter.: pignori accipere, sich als Hypothek verschreiben lassen, Tac.: pignus capere, Tac. u. ICt.: alci pignus capere togae, die T. abpfänden, Plaut.: capere rem pignori, ICt., pignoris iure, ICt. – als Zwangsmittel für die Senatoren zur Teilnahme an den Senatssitzungen usw., pignera capere, Liv. 3, 38, 12: pignora auferre, Cic. de or. 3, 4: pignoribus cogere senatores, Cic. Phil. 1, 12. – B) insbes.: 1) die Geisel, sine pignore, Liv.: pignora marium, männliche Geiseln, Suet.: equites pignora pacis, G. (Unterfänder) für den Fr., Liv. – 2) der Betrag der Wette, pignore contendere, certare, wetten, Catull. u. Verg.: so auch pignus ponere, Ov.: pignus ponere cum alqo de alqo (auf jmd.), Val. Max.: pignus ponere, an etc., Val. Max. – 3) ein Kontrakt mit Unterpfand, ICt. – 4) von Gatten, Kindern u. Enkeln = Unterpfänder der Liebe, Ov. u.a. (Plur. pignera, v. einem Kinde, Stat. Ach. 1, 127. Lucan. 5, 473): mit Genet., pignera coniugum ac liberorum, Liv.: so auch von Eltern, Geschwistern, Anverwandten, Quint. u. Plin. ep.: übtr., von eingepfropften Zweigen od. Pfropfreisern, Pallad. – II) bildl., das Pfand, Unterpfand = der Beweis, das sichere Kennzeichen, voluntatis, iniuriae, Cic.: dare pignus magnum, Cic.: nullum erga me benevolentiae pignus atque indicium omisistis, Curt.: pignus est m. Infin., est et hoc ipsum melioris ingenii pignus, non corrumpi bonitate eius, Sen. contr. 2. praef. §. 4.

pignus [CL] 1 pledge, security; b (w. ref. to pledge of money or property); c (w. gen.) guarantee of (also transf.). d (of the Holy Spirit; w. ref. to II Cor. i 22, v 5, Eph. i 14). ~us, wed vel alæned feoh Ælf. Gl. 115; suo jam statuto haeredi Guillelmo ‥ ~ore cavit. ‥ fidem sacramento confirmaturum Heraldum ei destinavit W. Poit. I 41; hic tanquam ~us daturus ad nuptias vel suas oblaturus primitias Gosc. Edith 43; pignus, -oris filiorum, -us, eris aliarum rerum Osb. Glouc. Deriv. 446.  b indigenti cuidam pecuniam meam erogavi et quoddam molendinum ejus pro ~ore recepi Ord. Vit. VIII 17 p. 373; 1254 quod ‥ possit ‥ pingnus super ‥ Gastonem capere pro dampnis illis RGasc I 325b; numquid bonus socius reputatur qui suum ~us [ME: wed] ponit in Judaismo ut socium suum liberet? AncrR 155; 1403 pro capcione ~oris, iiij d. Ac. Durh. 455; 1432 prestetur mutuum ‥ sub reali et suciente ~ore StatOx 250; 1457 habet j ollam eneam unius Stephani K. in ~ore pro v s. Wills Dublin 2.  c rivis ‥ suavis soporis ~us praetendentibus Gildas EB 3; pignera pacis Aldh. VirgV 1557; Ceolfridus ‥ / devoti affectus pignora mitto mei (Vers. Ceolfridi) Hist. Abb. Jarrow 37; in ~us promissionis inplendae ‥ filiam suam Christo consecrandam ‥ assignavit Bede HE II 9 p. 99; 795 (12c) hanc elemosinam ‥ pro pignore Christianae fidei ‥ offero Deo CS 265; fidei ~us dederat cui juveni, se nulli unquam nupturam nisi ipsi Gosc. Transl. Mild. 37; xeniolum in perpetui ~us amoris deposuit W. Malm. GP II 82; hoc ‥ ~us dilectionis sue ‥ Jesus nobis reliquit Bald. Cant. Serm. 4. 20. 407; in ~us vitae et immortalitatis J. Ford Serm. 117. 11.  d paracletus ‥ ~us promissae hereditatis Aldh. Met. 2 p. 67; ~us ‥ Spiritus Sanctus est, qui nobis veram securitatem prestat in conjunctione timoris et sancte spei Bald. Cant. Serm. 16. 35. 489; tu ad spirituales invitata nuptias, sponsum suscipis datum a Patre, purgationem a Filio, ~us amoris a Spiritu Sancto Ailr. Inst. Inclus. 31. 2 (appl. to offspring): a (w. natus in apposition or gen.); b (as equivalent of natus); c (w. play on sense 1b). dulcia natorum ~ora Aldh. VirgP 5; amat pater dulcissima ~ora natos Bald. Cant. Serm. 12. 3. 478.  b quo fratrum ~orumque suorum miserandas ‥ poenas cito exitu devitabant Gildas EB 19; si unicum ~us [gl.: i. filius: pignera sunt rerum, ~ora filiorum] ob religionis praerogativam ‥ ab illorum stirpe privaretur Aldh. VirgP 36 p. 280; 10‥ ~us, bearn WW; dilectissimum ~us, uti mos est catholicis, sacro abluunt fonte baptismatis Enc. Emmae II 18; natos ‥ suos sibi rex ‥ commendavit ‥ . ‥ suscepit ‥ Ecgwinis commendata sibi regum ~ora, evidentissima regie circa se dignationis atque dilectionis pignera Dominic V. Ecgwini I 7; Abraham in unici ~oris nece tibi devotus extitit V. Chris. Marky. 79; jam floret Priamus populoso pignore felix, / felix conjugio J. Exon. BT II 1.  c merorem improbo solvit cum fenore / qui prius defuit effuso pignore Walt. Wimb. Carm. 268. 3 (appl. to disciple). quis sit nescimus nisi quod illum de intimis patris Augustini ~oribus fuisse qui tali loco consepeliri meruerit autumamus Gosc. Transl. Aug. 22A. 4 (appl. to saint’s relic, usu. part of body); b (artefact assoc. w. saint). colligunt in scrinia ‥ illa aurea ac gemmea ~ora ‥ rite composita Gosc. Transl. Aug. 18B; quod quatuor episcoporum sacra ~ora continebat Hexham 200; reliquie ‥ sanctorum ‥ ut deceret non recondebantur ‥ . ne sanctorum ~era debito carerent domicilio, feretrum ‥ fieri fecerunt Chr. Battle f. 49v; cum ‥ episcopi ‥ mausoleum quo sacra ~ora condebantur aperuissent Canon. G. Sempr. f. 111; ut promereretur ab abbate Baldewino de ~oribus sancti recipere ‥. quibus susceptis reliquiis (Edm.) NLA II 619.  b ~us sancti ‥ baculi sc. illius fragmen precepit afferri Canon. G. Sempr. f. 157.

pignŭs, (9) ŏris et ĕris, n. , ¶ 1 gage, nantissement : se pignori, agrum pignori opponere Pl. Ps. 87 ; Ter. Phorm. 661, se donner, donner un champ en gage ; pignori accipere Tac. H. 3, 65, recevoir en gage ; pignera capere Liv. 3, 38, 12 ; pignora auferre Cic. de Or. 3, 4, sʼassurer des gages, prendre hypothèque, exiger un cautionnement, cf. Cic. Phil. 1, 12 ¶ 2 [en part.] a) gage, otage : Liv. 28, 34, 9 ; 33, 22, 9 ; 43, 10, 3 ; b) garantie dʼune gageure, enjeu : pignore certare cum aliquo Virg. B. 3, 31, lutter avec qqn en mettant un enjeu ; pignus ponere Ov. Ars 1, 168, poser son enjeu ; c) [poét.] gages de tendresse [= enfants, parents, amis], objets chéris : Ov. M. 11, 543 ; 3, 134 ; Liv. 2, 1, 5 ; Quint. 6, 1, 33 ; Plin. Min. Ep. 1, 12, 3 ; Tac. Ann. 12, 2, etc. ¶ 3 [fig.] garantie : illud pignus libertatis Cic. Phil. 12, 22, [Brutus] ce garant de la liberté, cf. Cic. Att. 1, 19, 3 ; magnum pignus ab eo rei publicæ datum, se velle... Cic. Phil. 1, 4, il avait donné à la république un grand gage (une grande preuve) quʼil voulait...

pignus , oris. n.
當頭。押帳。當。當之物。打賭之憑。妻子。友。憑據。— amoris 愛情之據。Dare pignori 當物。Pignore certare 當物而賭。Ager appositus pignori 當之田。Adscita pignora 諸義子。

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pīgnus oris and eris, n

• PAC-, a pledge, gage, pawn, security, guaranty: ager oppositus est pignori, T.: quo facto pignore animos centurionum devinxit, Cs.: viginti milia faenus pignoribus positis, income from mortgages, Iu.—A levy upon property to secure a fine: adparitores ad pignera capienda (for wilful absence from the Senate), L.—A hostage: simulatae sine ullo pignore deditiones, L.: pacis.—A wager, stake: dic, mecum quo pignore certes, what bet you will make with me, V.: Et quaerit posito pignore vincat uter, O.— Fig., a pledge, token, assurance, proof: magnum pignus ab eo rei p. datum, se, etc.: reconciliatae gratiae, Cu.: Pignera da, per quae Credar, etc., sure tokens, O.: digito pignus fortasse dedisti, i. e. a ring, Iu.—Pledges of love, children: cum pignoribus domus, O.: pignera cara, nepotes, O.: frangi aspectu pignorum suorum, Ta.

PIGNUS

PIGNUS, Athing is said to be pledged to a man when it is made security to him for the satisfaction of some debt or obligation due to him, the creditor acquiring a right in the thing pledged available against third parties as well as against the pledger, though the latter remains owner of the thing. Thus the right of pignus or pledge belongs to the class of jura in re alienâ.

The progress of the Roman law of pledge can be clearly traced. In the law of the Twelve Tables there was no independent right of pledge as distinct from a right of ownership, the only mode of giving security in early times being by a transfer of Quiritarian ownership of the thing to the creditor by mancipation or in jure cessio, on condition of its being re-conveyed when the debt was paid (ut remancipetur, in jure cedatur). [FIDUCIA] The creditor who failed to re-convey when the debt was paid might be sued by a personal action, called actio fiduciae, for breach of faith; but as the debtor had parted with the ownership of the thing, he had no real action against third parties in respect of it. The first step in advance from this clumsy contrivance of a conveyance and a re-conveyance was the establishment of pignus, using this term in its strict sense: pignus was constituted by the simple delivery of a thing to the creditor as security for his debt without conveying the ownership of it to him. The creditor acquired by the delivery legal possession of the thing, being protected by possessory interdicts, but he had no real action (actio in rem) against third parties; moreover he could not dispose of the pignus to obtain satisfaction of his claim, nor could he make use of it while in his possession, but had simply a right of retention. It was a common practice, however, for the parties to a pledge to make a condition, called Lex Commissoria, by which, if the debt was not paid, the thing became the property of the pledgee. It will be seen that this form of security was less advantageous to a creditor than that of a conveyance with a fiducia, and that, on the other hand, it did not interfere so much with the rights of the debtor, since he remained owner of the pignus and was able to vindicate it from any third party.

Ultimately the praetor made a great reform in the law of pledge by allowing a pledge to be constituted by simple agreement (nuda conventio); thus making delivery a matter of option, and by giving an actio in rem to a pledgee without depriving the pledger of his ownership. This change was first instituted to enable a landlord to recover the property (invecta illata) of his farming tenant (colonus) which had been pledged to him for his rent (pro mercedibus fundi), the remedies for this purpose being the interdictum Salvianum [INTERDICTUM] and the actio Serviana in rem. The latter remedy was extended under the name of actio quasi-Serviana or hypothecaria, generally to creditors who had things pignerated or hypothecated to them, whether by delivery or simple agreement. The creditor also acquired the power of selling the thing pledged if his debt was not satisfied.

The term pignus may signify generally a thing pledged in any way, but in a strict sense it means a thing pledged by delivery, hypotheca being the proper term for a thing pledged by mere agreement (Dig. 13, 7, 9.2; Isid. Orig. 5, 25; see also Cic. ad Fam. 13.5. 6). Gaius (Dig. 50, 16, 238) says that pignus is derived from pugnus quia quae pignori dantur, manu traduntur. This is one of several instances of the failure of the Roman jurists when they attempted etymological explanation of words [MUTUUM]. The element of pignus (pig) is contained in the word pa [n ]go (Gr. πήγνυμι) and its cognate forms.

Having traced the history of pledge, we proceed to give some account of the law on the subject as it appears in Justinian's legislation. A right of pledge or mortgage cannot arise or continue unless there is some principal obligation to which it is accessory. The principal obligation may be of any kind, as for money borrowed (mutua pecunia), or for dos, letting and hiring, mandate; it may be conditional or unconditional, for part of a sum of money as well as for the whole (Dig. 20, 1, 5). It could be one not enforceable by action, but only binding naturaliter (Dig. 20, 1, 14.1). [OBLIGATIO. ] The amount for which a pledge was security depended on the agreement: it might be for principal and interest or for either; or it might comprehend principal and interest, and all costs and expenses which the pledgee might be put to on account of the thing pledged (Dig. 13, 17, 8.25). Anything could be the object of pignus which could be an object of commerce (Dig. 20, 1, 9; Dig. 20, 3, quae res pignori vel hypothecae datae obligari non possunt), movable as well as immovable things, even things which are consumed by the use. It might be a thing corporeal or incorporeal, a single thing or an entire property. If a single thing was pledged, the thing with all its increase was the security, as in the case of a piece of land increased by alluvio. If a shop (taberna) was pledged, all the goods in it were pledged; and if some of these were sold and others bought in, and the pledger died, the pledgee's security was the shop and all that it contained at the time of the pledger's death (Dig. 20, 1, 34). If all a man's property was pledged, the pledge comprehended also his future property, unless such property was clearly excepted. A man might also pledge any claim or demand that he had against another. It is to be noticed that the objects of pledge were much extended by the establishment of the principle of hypotheca, since previously only such property could be pledged as was capable of delivery. The act of pledging required no particular form. Nothing more was requisite to establish the validity of a pledge than proof of the agreement of the parties to it. It was called contractus pigneratitius when it was a case of pignus; and pactum hypothecae, when it was a case of hypotheca: in the former case, as we have seen, delivery was necessary. A man might also by his testament make a pignus (Dig. 13, 7, 26). A man could only pledge a thing when he was the owner and had full power of disposing of it. If a man pledged a thing which was not his, he did not make the thing a pignus, but the creditor had the right of bringing an actio Publiciana for its recovery, if the pledger could maintain this action. If the pledger afterwards became owner of the thing, the pledge became a valid one under certain circumstances (Dig. 13, 7, 20; 20, 2, 5: cf. Windscheid, Pandekten, 1.230).

A pignus might be created by law; that is, there was among the Romans an implied hypothec (tacita hypotheca, pignora tacite contracta), which existed not by consent of the parties but by rule of law (ipso jure), in respect of particular kinds of obligations (Dig. 20, 2, In quibus causis pignus vel hypotheca tacite contrahitur). These hypothecae had either for their object some particular things belonging to the debtor--special hypothec; or his entire property, present and future--general hypothec.

The following are instances of special hypothecae:--1. The lessor of a building or land not intended to be used for agricultural purposes had a hypotheca, in respect of his claims arising out of the contract of hiring, on everything which the lessee (inquilinus) brought upon the premises for constant use (invecta et illata). 2. The lessor of agricultural land had an hypotheca on the farm as soon as they were collected by the lessee (colonus) for claims arising from the lease (Dig. 20, 2, 7; 19, 2, 24. From this rule of Roman law the old Scotch law of hypothec seems to have been derived). 3. A person who lent money to repair a ruinous house had an hypotheca on the house for the amount of his money which had been laid out on such repair. (This hypothec was established by a senatusconsultum under the Emperor Marcus.) 4. Pupilli had a hypotheca on things which were bought with their money, but not in their name. (Constitution of Severus and Caracalla.) 5. A legatee had a hypothec on any property which the person charged with the legacy had derived from the estate of the testator.

The following are the cases of general hypothecae:--1. The fiscus had a general hypotheca on the property of its debtors in respect of all claims for penalties. (For the history of the law on this subject, see Dernburg, 1. § § 41, 43.) 2. The Emperor personally and the Empress on goods of their debtors (Dig. 49, 14, 6.1). 3. The husband on the property of him who promised a dos. 4. The wife on the property of her husband for recovery of dos and parapherna in her husband's possession, and in respect of claims arising from donatio propter nuptias. 5. Minors and lunatics on the property of their guardians. 6. Children under certain circumstances against the estates of their father or mother (Windscheid, Pandekten, 51.232). 7. Churches on the property of their emphyteutic tenants for enforcing liabilities on account of waste (Nov. 1, 100.3, 2).

Pignus might be created by a judicial sentence, as for instance by the decree of the praetor giving to a creditor power to take possession of his debtor's property (missio creditoris in bona debitoris); either a single thing or all his property, as the case might be. But the permission or command of the magistratus did not effect a pledge, unless the person actually took possession of the thing. The following are instances:--The immissio damni infecti causcs [DAMNUM INFECTUM]; legatorum servandorum. causa, which had for its object the securing of a legacy which had been left sub conditione or die (Dig. 36, 4); missio ventris nomine in possessionem, when the pregnant widow was allowed to take possession of the inheritance for the protection of a postumus. The right which a person obtained by such immissio was called pignus praetorium. Pignus judiciale was when the judex ordered the goods of a person to be taken as security for the satisfaction of a judgment (ex causa judicati).

The person who had given a pledge was still owner of the thing that was pledged. He could therefore use the thing and enjoy its fructus, if he had not given up possession. But the agreement might be that the creditor should have the use or profit of the thing instead of interest, which kind of contract was called antichresis or mutual use: if there was no agreement as to use, the creditor could not use the thing even if it was in his possession. The pledger could also sell the thing pledged, unless there was some agreement to the contrary, but such sale could not affect the right of the pledgee (Dig. 13, 7, 18.2). If the pledger sold and delivered a movable thing that was pignerated or was specially hypothecated, without the knowledge and consent of the creditor, he was guilty of furtum (Dig. 20, 1, 13, 2; 47, 19, 6; 66, 4). If the pledger at the time of a pignus being given was not the owner of a thing, but had the possession of it, he could still acquire the property of the thing by usucapion, while it was in the possession of the pledgee, for the pledging was not an interruption of the usucapion [POSSESSIO]. The pledgee might either have possession of the thing from the first by delivery, or might have taken possession subsequently on account of the default of the debtor. In either case he was entitled to keep possession till his demand was fully satisfied. For the purpose of obtaining possession of the pledge he had the actio hypothecaria or actio quasi-Serviana against every person who was in possession of it; his right to recover in this action was derived from the title of the person who had pledged the thing to him. If a pledgee could not obtain possession of the thing pledged, or was evicted on account of some defect in the title of the pledger, his only remedy was a personal action against the latter. A creditor who had a pignus had also a right to the interdicta retinendae et recuperandae possessionis. [INTERDICTUM]

A pledgee could pledge the thing that was pledged to him; that is, he could transfer the pignus (Dig. 20, 1, 13.2). In case his demand was not satisfied at the time agreed on, the pledgee had a right to sell the thing and pay himself out of the proceeds (jus distrahendi sive vendendi pignus). (Dig. 20, 5; Cod. 8, 27, 28.) This power of sale might be qualified by the terms of the agreement; but the creditor could not be deprived of all power of sale, nor could he be compelled to exercise his power of sale. Caius (2.64) illustrates the proposition that a person who was not owner of a thing could in some cases alienate it, by the example of the right of a pledgee to sell the thing pledged; but he adds that the right of sale in this case may perhaps be referred to the consent of the debtor or owner, who by entering into a contract of pledge agreed that the pledgee should have such right. In case of a sale the creditor, according to the later law, must give the debtor three separate notices of his intention to sell; and after the last of such notices, he must wait two years before he could legally make a sale. If anything remained over after satisfying the creditor, it was his duty to give it to the debtor; and if the price was insufficient to satisfy the creditor's demand, his debtor was still 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. 8, 34, 3).

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. [COMMISSORIA LEX]

A pledgee who had acquired possession of a pignus was under an obligation to restore it to the pledger on payment of the debt for which it had been given; and up to that time he was bound to take such care of it as a careful person would take. On paymn ent of the debt, he might be sued by the pledger in a personal action called actio pignoratitia, 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 dolus or culpa on the part of the pledger relating thereto, was by an actio pignoratitia contracria.

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 pignore qui prius credidit pecuniam et accepit hypothecam, Dig. 20, 4, 11). There were some exceptions to this rule: for instance, when a subsequent pledgee had lent his money to save the thing pledged from destruction, he had a preference over a prior pledgee (Dig. 20, 4, § § 5, 6). This rule has been adopted in the English law as to money lent on ships and secured by bottomry bonds. Certain hypothecae had a preference or priority (privilegium) over all other claims. Of these claimants, the Fiscus came first in respect of taxes and contracts; then the wife in respect of her dos; and then those who had been put to some expense in repairing or restoring a thing. In the case of unprivileged creditors, the general rule, as already observed, was that priority in time gave priority of right. But a hypotheca which could be proved by a writing executed in a certain public form (instrumentum publice confectum), or which was proved by the signatures of three reputable persons (instrumentum quasi publice confectum), had a priority over all those 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 for any reason the priority over the rest was entitled 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 the place of the prior creditor (Dig. 20, 3, 3). Also if he purchased a 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, 4, 16).

The pledge was extinguished by a release of it on the part of the creditor, also by the destruction of the thing, for the loss was the owner's; it was also extinguished if the thing was changed so as no longer to be the same, and not capable of being restored to its former state (Dig. 13, 7, 18.3); further, it was extinguished by confusio--that is, when the right of ownership and right of pledge were merged in the same person, and lastly by a prescription of ten or twenty years under certain conditions.

(Dig. 20; Cod. 8, 14-35; Gesterding, Die Lehre vore Pfandrecht, &c.; Sintenis, Handbuch des gemeinen Pfandrechts; Bachofen, Das römische Pfandrecht, &c.; Dernburg, Das Pfandrecht nach den Grundsäitzen des heutigen römischen Rechts; Windscheid, Pandekten, § 224, &c.; Puchta, Inst. i. § 246, &c. There is an English treatise entitled The Law of Pledges or Pawns as it was in use among the Romans, &c. by John Ayliffe, London, 1732, &c.)

[E.A.W]

Pignus

In Roman law, a pledge seized by a creditor, or given to him, to secure the performance of an obligation.

I. If given, a contractual relation exists between the pledgor and pledgee (pignori dans, accipiens). The pledgee is bound to restore the pledge when the debt is paid; the pledgor is bound to reimburse the pledgee for necessary outlays. The pledgee had originally no right except to hold the pledge until the debt was paid. Even when the debtor was in default, the creditor could not sell the pledge (pignus distrahere) unless this had been specially agreed. At a later period such an agreement was presumed, and in the final development of the Roman law an agreement that the pledge should not be sold had no effect except that the creditor, before selling, was obliged to give the debtor three warnings (denuntiationes) instead of one. In case the sum realized by the creditor exceeded the amount due him, he was bound to restore the surplus (superfluum, hyperocha) to the pledgor. The pledgee had no right to use the property pledged unless this was specially agreed. If the property yielded fructus (as was the case, for example, with land), and if, as was not uncommon, it was agreed that the creditor should appropriate the yield in lieu of interest on the debt, the contract was termed antichresis.

Originally, the pledgee had no right against third persons. His possession was indeed protected: but if he lost possession, he could not recover as against an honest conveyee or pledgee in possession. The only method of giving him such a right of recovery was to break loose from the conception of pignus and make him owner, with an understanding that when the debt was paid he should reconvey the property to the debtor. This form of pledge (which did not require delivery of possession) was termed fiducia (q. v.). Towards the close of the republican period, however, the law of pignus was so developed as to admit lien without conveyance of ownership or delivery of possession, and to give the pledgee a right of recovery as against third persons. The first step was to recognize that a landlord (locator fundi) might obtain, by contract, a lien (pignus) on all the chattels which his tenant (colonus) brought upon the farm (invecta et illata). When the tenant was in arrears with his rent, summary proceedings were devised to put the landlord in possession (interdictum Salvianum). The next step was to enable the landlord to follow up any such chattels as were removed from the farm. This was done by the actio Serviana. A form of pignus was thus developed which operated in rem, and therefore created a ius in re. The third and last step was to extend the new principle to all contractual pledges, with or without possession. This was done by the actio quasi Serviana. A similar form of lien had been developed in Greece; and at the time of Cicero the term hypotheca was being naturalized among the Romans, and in the early Empire the jurists spoke of the actio quasi Serviana seu hypothecaria. The terms pignus and hypotheca were thenceforth used interchangeably, although the more careful writers restricted pignus to the pledge in possession (which was most frequent in the case of movables) and hypotheca to the pledge without possession.

In the earlier civil law it is probable that only corporeal things could be given pignori. In the later development of the law it was possible to create a lien on almost any property right, even on a right of action or debt (pignus nominis). The right of the pledgee might itself be pledged (pignus pignoris). It was finally recognized that all the assets of an estate might be hypothecated.

Successive hypothecations of the same property were possible. As between the different pledgees, the general rule was prior potior.

II. Pledges might be seized without the consent of the owners. For the pignoris capio of certain favoured creditors in early Roman law, see actio in the Appendix. For the power of the magistrates to enforce obedience to their commands by pignoris capio, see magistratus. Out of the latter power was gradually developed the seizure of property to satisfy judgment (pignus in causa iudicati captum).