Actio Serviana and Actiones Pigneraticiae in Personam

From a modern analytical perspective, the conventio pignoris is a hybrid institution. It is within the scope of the law of property, because (certainly since Julian) a proprietary right of pledge could be created nuda conventione.^[781] From Julian onwards, the ‘naked' (nuda) conventio pignoris itself gave rise to an actio in rem (actio Serviana) that could be instituted against third parties in possession of the pledged property.

At the same time the conventio pignoris constituted a contractual relationship between the debtor and the creditor, dealing with their rights and obligations inter se. This contractual relationship was sanctioned by actiones pigneraticiae in personam.^[782] The constitutive elements of pignus as a legal institution are therefore to be found not only in the formula of the actio Serviana (in rem) but also in the formulae of the actiones pigneraticiae (in personam). For this reason, in this section, I will also take the opportunity to say something about the enforcement of the pledge agreement as a contract with the personal actiones pigneraticiae. Like the actio Serviana they illustrate how the jurists were ready to adapt Roman law to the needs of the economic environment.

Pledge of invecta et illata; interdictum Salvianum

The Catonian pledges of invecta et illata can already be characterized as representing a preliminary or intermediate stage of a non-possessory pledge.^[783] In order to strenghten the creditor's position in respect of pledged invecta et illata, legal remedies were developed in late republican law.^[784] ^{^[785] One of these remedies was the interdictum Salvianum. This interdict was a prohibitory interdict directed against the tenant, which allowed the landlord to remove pledged assets from the leased farm or land so that they could be sold by way of execution.^ The landlord would thus be put in the same position as a creditor to whom a straightforward possessory pledge had been granted ab initio.^[786] This makes it pretty obvious that what were, in effect, non-possessory pledges, already gave rise to legal remedies in pre-classical law.}

This may not yet have been the full-fledged pledge as a right in rem of classical law. At least, this would be the only possible conclusion when one assumes that in late republican law the interdictum Salvianum’s only function was to give the landowner a remedy against the tenant (therefore not against third persons)?^[787] However, probably not long after the introduction of this interdict, the actio Serviana was included in the praetor's edict,^[788]'¹¹ perhaps originally exclusively for tenant's pledges, so that in the first century bc at least this form of hybrid non- possessory pledge had evolved into a full-fledged right in rem.

The actio Serviana in the Edictum perpetuum

As a general edictal action available to all pledge creditors, the actio Serviana may have been introduced by Julian in the second century ad, when he drafted the Edictum perpetuum.^[789] ^{^[790] ^[791] Even if one accepts that it was indeed Julian who did so,^M3 the origin of Julian's ‘innovation' may lie in the early classical period preceding him. Soon after its introduction in the first century bc the formula of this actio Serviana may have been adapted to accommodate other creditors than landlords.'^ Out of these incidental grantings of actiones utiles an extra-edictal practice may have evolved of granting an adapted actio Serviana to any pledge creditor against possessors of pledged objects.^[792] This practice culminated in 131 ad in the inclusion of the generalized actio Serviana in the Edictum perpetuum. This edictal actio Serviana had the conventio pignoris as its central element and covered both possessory and non- possessory pledges.}

The classical formula for the actio Serviana—as it was recorded in the Edictum perpetuum—has been reconstructed by Lenel as follows:

Si paret inter Aulum Agerium et Lucium Titium convenisse, ut ea res qua de agitur Aulo Agerio pignori esset propter pecuniam debitam, eamque rem tunc, cum conveniebat, in bonis Lucii Titii fuisse eamque pecuniam neque solutam neque eo nomine satisfactum esse neque per Aulum Agerium stare quo minus solvatur, nisi ea res arbitrio iudicis restituetur, quanti ea res erit, tantam pecuniam iudex Numerium Negidium Aulo Agerio condemnatoTh⁶

If it appears (a1) that it had been agreed between Aulus Agerius and Lucius Titius that the object which is at issue would be pledged to Aulus Agerius (a₂) for money owed, (cQ that that object at the time it was agreed was in the patrimony of Lucius Titius, (a₄) that this money has not been paid nor otherwise satisfaction has been given for this claim and (a₅) it is not because of Aulus Agerius that nothing has been paid, and (a₆) if the object shall not be restored at the award of the judge, (b) do you, judge, condemn Numerius Negidius to Aulus Agerius for so much money as the object will be worth?

The forms of action (formulae) which were the central element of the formulary procedure were formulated and operated as conditional programs: the formula of the actio Serviana did have an ‘if a then b structure.

If it appears that it had been agreed between a creditor and a debtor that an object was pledged (a1) and certain other conditions (a₂₆) were satisfied, then the judge shall condemn the defendant in possession of the pledged object to pay its value to the claimant (b)Th⁷ In Lenel’s reconstruction of the formula of the actio Serviana the conventio pignoris is the central element (convenisse, etc.). This may well represent the original text of the form of action, certainly if one accepts that the actio Serviana was within the scope of the edictum de pac- tis.^14S However, if the traditio originally was an essential element of the granting of the pledge itself, the actio Serviana’s formula could have reflected this: Si paret A^m A^m Lucio Titio rem qua de agitur pignori dedisse... (or pignoris causa tradisse). Parallel to fiducia cum creditore, the granting of a full-fledged right in rem would originally be based on a contractual agreement (conventio pignoris) combined with a proprierary disposition (traditio). In the hypothetical formula reproduced above, this is represented by the phrase pignori dedisse. Originally the expression pignus dare may have related to possessory pledges and refer to the traditio or equivalent acts (e.g., inductio) which were necessary to grant a pledge that was enforceable against third parties with the actio Serviana.^[793] ^{^[794] ^[795] ^[796] Debtor’s actio pigneraticia (directa)
The accessory nature of the right of pledge entailed that upon discharge of the secured debt, it would automatically cease to exist?⁵⁰ The debtor could claim restitution of the pledged object with the rei vindicatio or the actio Publiciana. However, there may have been situations where instituting an ownershipbased real action would be of no avail to the debtor, in particular where the creditor was no longer in possession of the pledged object or it had been destroyed. The debtor would originally be granted an actio in personam—the condictio—against the creditor for the value of the pledged object.^ This condictio may have been the ancestor of a contractual action which was specifically designed and developed by the jurists (formally: the praetor) for sanctioning the conventio pignoris: the actio pigneraticia (directa).¹⁵² The formula of this actio was in factum concepta, based on the fact that the debtor had given an object as a pledge to the creditor: Si rem A^m A^m N^o N^o qua de agitur ob pecuniam debitam pignori dedisse....¹⁵³ The iudex would condemn the creditor to pay the monetary value of the pledged object (quanti ea res erit).^1M What exactly the creditor's standard of liability was for not returning the pledged property is not entirely clear?⁵⁵ Originally this liability may have been confined to cases where the creditor simply refused to return the pledged object or deliberately made this impossible (e.g., by destroying it).
Later this liability for dolus may have been extended to negligence (culpa). Thus, for late classical law Ulpian D. 50.17.23 counts the pledge creditor among those contractual parties who are liable for dolus (wilful default) and culpa (negligence).i5⁶ In another text, however, the same jurist holds that the pledge creditor is also liable for theft (custodia). This extension of liability may have been connected with the origin of a new variant of the actio pigneraticia, with a formula in ius concepta. In all likelihood, in the high classical period a second form of action was designed by the jurists for the debtor's contractual action against the creditor. This was an actio pigneraticia with a formula in ius concepta, which incorporated the concept of bona fides.'⁵⁷ The main advantage of this more flexible formula, which may have been the reason for its origin, was that the ex fide bona clause allowed the iudex to condemn the creditor to return the superfluum to the debtor.i5⁸ The phrase 'quanti ea res erit' of the actio pigneraticia in factum concepta may not have allowed for this. The actio pigneraticia in ius concepta did not oust the actio pigneraticia in factum concepta, which continued to exist alongside the new action. This cannot be explained simply
152 Kaser notices, however, that the debtor's actio pigneraticia has a 'dark prehistory'. Kaser 1982: 229 n 191. Kaser has reconstructed the praetor's edict on the actio pigneraticia (directa) as follows: Quod obpecuniam debitam pignori datum esse dicetur, de eo iudicium dabo.
153 The word dedisse in the actio pigneraticia (directa) may reflect the original possessory nature of pignus, but pignus dare could (certainly later) also designate the granting of (possessory and non- possessory) pledges in general. Kaser 1982: 200.
154 The fact that someone else's property had been pledged also did not prevent that when the secured debt had been discharged, the (non-owning) debtor could institute the actio pigneraticia in order to recover the pledged property from the creditor (Ulp.
D. 13.7.9.4). In other words, the debtor's (civilian or praetorian) ownership (in bonis) of the pledged property was not a requirement for a valid and enforceable conventio pignoris as a contractual relationship. 155 Zimmermann 1990: 225-7.
156 General actions—such as the actio furti and the actio legis aquiliae—remained available to the pledge debtor, although subject to general principles of concurrent actions. For instance, Gai. D. 13.6.18.1 says that where the creditor has damaged the pledged object the debtor shall either have the actio pigneraticia (directa) or the actio legis aquiliae against the creditor.
157 Kaser 1982: 98. 158 Zimmermann 1990: 223.
with reference to Roman traditionalism, which generally preferred the gradual withering away of obsolete institutions above their immediate repeal. The reason for the continuing existence of the actio pigneraticia in factum concepta may have been that it sometimes offered certain advantages. The quanti ea res erit would condemn the creditor to pay the objective value of the pledged property, even if the actual loss of the debtor was much less (e.g., because he did not own the pledged property).^[797] Kaser regards this as a consequence of conservatism, but in a more articulate way. In their consulting practice for private clients and as counsel to praetors and iudices, the jurists had elaborated the contractual relationship between debtor and creditor on the basis of the formula in factum concepta. This ‘rich and dense interlacing of thoughts', which was based on the controversies arising from casuistry, became part of jurisprudence. The jurists held on to this passed-down material, which offered fertile ground for further discussions. They tried to manage with the old form of action and only where this would not be possible would they try to fill gaps with the more elastic and ‘modern' formula in ius concepta.^[798]
Creditor's actio pigneraticia (contraria)
For some time during the classical period the conventio pignoris did not yet have all the attributes which it had later on.
In particular, the creditor may initially not yet have had the actio pigneraticia contraria at his disposal. Instead, he would have relied on non-contractual actions (e.g., actio furti, actio ad exhibendum, actio de dolo) and other remedies (e.g., a lien in the form of a defence against the debtor's (personal or real) action for the return of the pledged objects).i6i A striking case discussed by Labeo is recorded in Pomponius's commentary on Sabinus (D. 13.7.3). A creditor visited the debtor (probably) at his home in order to return the pledged asset, expecting to be paid the money owed. Immediately upon having repossessed the pledged object, the debtor hurled it through a window, where it was caught by an accomplice who absconded with it. According to Labeo the creditor could institute both the actio furti and the actio ad exhibendum against the debtor. According to Pomponius the creditor can also institute the actio pigneraticia contraria. The fact that Labeo does not mention this (obvious) remedy may be an indication that it did not yet exist in his time.¹⁶² Also, in opinions by late classical jurists (Ulpian and Paul), the debtor is held liable for wrongful behaviour with the actio pigneratica (contraria), while this possibility is not mentioned by the early classical jurists (Sabinus and Cassius) to whom they refer, who instead would grant an actio furti or actio de dolo.¹⁶³ The actio pigneraticia contraria would be particularly beneficial to the creditor where the debtor had pledged someone else's property, in the mistaken belief that it was his own. In that event he would not be liable with the actio de dolo. The actio pigneraticia contraria in ius concepta (with the bona fides clause) was much more adapted to cases like this.¹''⁴ The debtor's ignorance did not exempt him from this contractual liability?'⁵ With this action the creditor could claim compensation for the loss of his security interest?'' 6.7}

<< | >>

↑

Source: Verhagen Hendrik L.. Security and Credit in Roman Law: The Historical Evolution of Pignus and Hypotheca. Oxford University Press,2022. — 448 p.. 2022

Actio Serviana and Actiones Pigneraticiae in Personam

More on the topic Actio Serviana and Actiones Pigneraticiae in Personam: