3.7.2 Pignus

Pignus or pledge as a form of real security took place when the debtor or a third party delivered the possession of a movable or immovable thing to the creditor as security for the fulfilment of an obligation.

As in this case the creditor or pledgee did not become owner of the object but only its possessor, the debtor or pledgor was in a less disadvantageous position than in fiducia. The transfer of the property in question was accompanied by an agreement (pactum) of the parties that the property would be returned when the debtor paid his debt. This agreement constituted the real contract (contractus re) of pledge, which is more appropriately discussed in the chapter on the law of obligations below.

The creditor’s possession of the object was protected by possessory interdicts against interference by third parties, as well as by the actio Serviana or actio quasi Serviana. By means of the latter action the creditor could claim possession of the object from any person, including the pledgor, who had taken unlawful possession thereof.^{^[545]}

As long as the pledged object remained in the possession of the creditor, the latter was in principle not allowed to use or alienate it unless he and the pledgor had otherwise agreed.^{^[546]} One type of agreement that could be used was the pactum antichreseos or, briefly, antichresis by which the pledgee was permitted to use the object and retain the proceeds thereof for himself as a form of interest on the capital debt.^{^[547]} Furthermore, the parties could agree that if the obligation was not fulfilled by a certain date, the pledgee was entitled to sell the pledged object and discharge the debt out of the proceeds of the sale.^{^[548]} This agreement, known as pactum de distrahendo, evolved during the classical age into a ius distrahendi - an implied right on the part of the pledgee to sell the pledge, if the debt was not paid, even if there had been no agreement.^{^[549]} Under the law of Justinian, however, the sale of the pledged object was permitted only after the debtor had been condemned to payment of the capital debt or after notice had been given to the debtor on three occasions. The pledgee then had to wait for a period of no less than 2 years before he could proceed to the sale.^{^[550]} Finally, the parties could agree that if the principal obligation was not discharged within a prescribed period the pledgee would automatically become owner of the pledged object himself.

However, this agreement (pactum commissorium or lex commissoria) was deemed detrimental to the pledgor's interests since the pledge was, as a rule, more valuable than the amount of the debt. Consequently, Emperor Constantine prohibited this agreement in the fourth century AD.^{^[551]}^{^[552]}

After the discharge or extinction of the debtor's obligation, if the creditor did not voluntarily restore the possession of the property to the pledgor, the latter could claim it by means of a personal action termed the actio pigneraticia. The same action lay against a creditor through whose fault the pledged object was damaged or destroyed. Furthermore, if the pledgor was the owner of the pledged property he could institute the rei vindicatio against any third party in possession of such 277

property.

3.7.3

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

3.7.2 Pignus

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