Actio Serviana: Restitution and Valuation (if a1 6, then b)

If the conditions a1 to a₆ of the formula of the actio Serviana were met, the judge (iudex) was instructed by the praetor (as recorded in the litis contestatio) to condemn the defendant to pay ‘what the matter will be worth' (b).

Where all the requirements for the granting of a valid pledge had been met (a1 to a3), the secured debt had not yet been repaid nor any equivalent event (satisfaction, creditor's default) had taken place (a4 and a5), the iudex would first give the defendant the opportunity to give the pledged object back to the claimant (a₆). For cases where the defendant did not restore the pledged object, the jurists have devised an intricate method for the assessment of the amount which the defendant would be condemned to pay the creditor as claimant. In this appendix we will see that the outcome of this valuation process depended on several factors, in particular whether the pledge was possessory or non-possessory and whether the actio Serviana was instituted against the debtor or against a third party in possession of the property. This not always took place on the basis of the pledged object's value (as estimated by the claimant), but would sometimes be determined with reference to the amount of the secured debt. Here, the jurists reached results which reflect the ‘economics' of the different fact patterns.

Restitution

Where the judge concluded that the conditions a1 to a5 of the actio Serviana had been satisfied, pursuant to the clause nisi restituetur in the actio Serviana's formula he would pronounce an arbitrium (a₆) in which he ordered the defendant to restore the pledged object to the claimant. When the defendant complied with this order for restitution and returned the object to the claimant, the procedure would be terminated. A defendant who refused to comply with an order for restitution was referred to with the negative contumax (obstinate).¹ The valuation by the claimant (discussed shortly) is in some texts regarded as punishment for the defendant's contumacia (Paul.

D. 12.3.2; Marcell. D. 12.3.8). All this would put the defendant under pressure to give back the pledged object to the defendant. However, the defendant could not be compelled to surrender the pledged object. He was legally entitled to opt for paying the condemnation and would (if he was a third party in possession of the pledged object) to a considerable degree be protected if the debtor would later institute rei vindicatio proceedings against him.² We do not know how effective the restitution clause was. There are many cases in the Digest in which the defendant did indeed restore the object, but we also encounter texts in which the defendant decided not to do so.³ The judge would then have to condemn him to pay an amount representing ‘what the matter will be worth' (quanti ea res erit). The question then arose how this should be calculated. In case of actiones in rem, this amount was normally based on the value of the object (although, as we will see, in case of pignus this would sometimes be the amount of the secured debt).

In practice, it was left to the claimant himself to determine the value by a declaration on oath (iusiurandum in litem). This would often have provided a stimulus for the defendant to give back the pledged object. Although the average Roman would not commit perjury lightly by excessively overstating the value of the object, a valuation by the claimant himself would often have been on or above the upside of a realistic valuation.^[1414]

Ulp. D. 20.1.21.3: possessory pledge

There are two texts on the meaning of quanti ea res erit—Ulp. D. 20.1.21.3 and Marci. D. 20.1.16.3—which since the Glossa ordinaria in the thirteenth century ad have been said to demonstrate that there was an overt difference of opinion between these two jurists. Wubbe (whom I closely follow here),^[1415] however, has convincingly demonstrated that these texts do not contradict each other, because they are dealing with different situations.

Wubbe’s point of departure is that the creditor’s interest in the pledged property is not in its full value, but rather in its function as collateral for the secured debt. Where the creditor has received the amount of the secured debt, any surplus value of the pledged property is immaterial to him. This is only different when there are special reasons for justifying that the creditor can recover the full value of the pledged property. These special reasons are linked to the special nature of the possessory pledge.⁶

Where a possessory pledge has been created and the creditor has lost possession of the pledged object, the latter can institute the actio Serviana against the person in possession. This person (the defendant) can be either the debtor himself or a third party. Ulpian succinctly sets out how the judge should determine the amount due by a defendant who chose not to return the pledged property to the creditor.

D. 20.1.21.3. Ulpianus libro septuagesimo tertio ad edictum. Si res pignerata non restituatur, lis adversus possessorem erit aestimanda, sed utique aliter adversus ipsum debitorem, aliter adversus quemvis possessorem: nam adversus debitorem non pluris quam quanti debet, quia non pluris interest, adversus ceteros possessores etiam pluris, et quod amplius debito consecutus creditor fuerit, restituere debet debitori pigneraticia actione.

If the pledged property is not handed over, the amount due from the possessor must be assessed, but differently against the debtor and other possessors: against the debtor for nothing more than what he owes, because the (creditor’s) interest is nothing more than that; against others, the assessment can be greater, and if there is a surplus, the creditor must return it to the debtor by the actio pigneraticia.

Where the actio Serviana has been instituted against a third party in possession of the pledged object, the defendant will be condemned to pay the full value of the property. This can be explained with reference to the creditor’s liability towards the debtor for custodia.

This custodia liability entailed that the creditor would have to reimburse the debtor for the full value of the pledged property if it could not be returned to the debtor. Only by allowing the creditor to recover the full value of the pledged property from a third party in possession will it be prevented that the creditor would suffer a loss as a consequence of the defendant’s decision to keep the pledged property. The creditor will receive the full value of the pledged property from the defendant. He can set off his obligation to pass that on to the debtor against the debtor’s obligation to pay the secured debt, so that only the amount of the surplus value will have to be actually paid by the creditor. If, however, the value of pledged property turned out to be less than the secured debt, the outcome of the set-off would be that the debtor would be liable to pay the deficit.^[1416]

All this is different where a possessory pledge has been granted, but full possession of the pledged property has returned to the debtor and the actio Serviana has been instituted against this debtor. The creditor will no longer be liable for custodia, because the property is already with the debtor. Accordingly, in Serviana proceedings instituted against him, the debtor will only be condemned to pay the amount of the secured debt.^[1417] In particular, where there is a surplus value in the pledged property, this would be an economically efficient result. There is no need for the creditor to organize an auction for an execution sale, while the debtor does not afterwards have to sue (with the actio pigneraticia (directa)) the creditor for the superfluum.

Marci. D. 20.1.16.3: non-possessory pledge

Where the pledge was granted as a non-possessory pledge, the creditor was never liable for custodia. His interest in the pledged property is exclusively in its value as collateral. Accordingly, in Serviana proceedings against third parties in possession, the creditor can only recover the amount of the secured debt.

The seemingly contradictory opinions of Ulpian and Marcianus can thus be reconciled. Marcian does not expressly say that his opinion is on a non-possessory pledge. Wubbe has tried to demonstrate, however, that D. 20.1.16.3 only makes sense if it is so interpreted. In my view, it could also be dealing with situations where the pledge was granted as a possessory pledge, but possession of the pledged object was regained by the debtor before the secured debt was repaid. In particular, section (d) reproduced and discussed later in this Appendix appears to indicate that Marci. D. 20.1.16.3 is not so much exclusively dealing with non-possessory pledges, as with Serviana proceedings between creditor and debtor.

This is the opinion of Marcian, which—in imitation of Wubbe—I have subdivided into its successive elements.

D. 20.1.16.3. Marcianus libro singulari ad formulam hypothecariam.

(a) In vindicatione pignoris quaeritur, an rem, de qua actum est, possideat is cum quo actum est. nam si non possideat nec dolo fecerit quo minus possideat, absolvi debet:

(b) si vero possideat et aut pecuniam solvat aut rem restituat, aeque absolvendus est: si vero neutrum horum faciat, condemnatio sequetur.

(c) sed si velit restituere nec possit (forte quod res abest et longe est vel in provinciis), solet cautionibus res explicari: nam si caveret se restituturum, absolvitur.

(d) sin vero dolo quidem desiit possidere, summa autem ope nisus non possit rem ipsam restituere, tanti condemnabitur, quanti actor in litem iuraverit, sicut in ceteris

in rem actionibus: nam si tanti condemnatus esset, quantum deberetur, quid prederai in rem actio, cum et in personam agendo idem consequeretur?

(a) In an action for pledged property, the question arises whether the defendant possesses the thing claimed. If he does not possess it and has not dishonestly disposed of it, he should be held not liable,

(b) similarly if he possesses and either pays or hands over the property. If he does neither, he will be held liable.

(c) If he wants to hand the thing over and cannot (for example, because the property is distant or in the provinces), the matter is usually settled by a deed; for if he makes a formal promise to hand over the property, he is held not liable.

(d) If, however, someone has dishonestly lost possession and cannot hand over the property even with the greatest effort, he will be liable for the value assessed by the plaintiff, as in other actions in rem. For if judgment were confined to the amount owing, what would be the point of an action in rem, since the same result could be achieved by suing in personam?

The text begins by indicating in section (a) against whom the actio Serviana can be instituted: the actual possessor of the pledged property, which can be either the debtor himself or a third party. Section (a) implies that the actio Serviana can also be instituted against a former possessor, if he has disposed of the pledged object in order to escape a condemnation. Section (b) then immediately reaches the heart of the matter. The defendant is presented with a choice: pay the amount of the secured debt (which presupposes that the debtor is the defendant), return the pledged object, or pay the (on account of contumacia increased) value of the pledged object.’ These alternatives were not available where the actio Serviana was instituted by a creditor with a possessory pledge against a third party in possession. The creditor would be liable vis-à-vis the debtor for custodia and his interest would be in the recovery of the full value of the pledged property. In that event the defendant would be treated the same as in other proceedings in rem: either give back the object or pay its value as estimated by the claimant.¹⁰

If one assumes that the defendant’s decision would depend on the economics of the case and would be based on the difference between the pledged object’s value and the amount of the debt, then the relevance of section (c) becomes clear. If the value of the pledged property is less than the amount of the secured debt, the most economical option would be for the defendant to give back the property. But what if at the time of the procedure this cannot take place because the object is ‘distant or in the provinces’? For this scenario, section (c) says that a stipulatio by the defendant, in which he promises to give back the pledged object, is equivalent to actual restitution. This would enable a defendant to opt for restitution and avoid the risk of being ‘punished’ for contumacia. Also, from the perspective of the creditor, this is an economically sensible result. If the pledged object is worth less than the amount of the secured debt, the object will be restored to him. In case of an execution sale, there will be a deficit, but that would have been the case anyhow. If the value of the pledged object exceeds the secured debt and the defendant decides to pay it (rather than restore the pledged object), the creditor is fully satisfied and has no further interest in the pledged property.

Finally, section (d) of Marci. D. 20.1.16.3 deals with an exceptional case and specifies the legal consequences of the fraudulent disposal of the pledged object by the debtor. In this

situation, the defendant will be liable to pay the value of the pledged property, as declared on oath (iusiurandum in litem) by the claimant. This is motivated by Marcian with a rhetorical question: what use would an actio in rem (like the actio Serviana) have if it would be confined to the amount of the secured debt, given the fact that the same amount could be claimed with a personal action? This personal action would be the creditor’s action for payment of the secured debt (e.g., condictio pursuant to mutuum or stipulatio). The answer to that question could simply have been that in the debtor’s insolvency the actio Serviana would give the creditor a preferential position. According to Wubbe, this passage expresses Marcian’s embarrassment caused by an intuitive discomfort with the punitive character of the consequences of the defendant’s contumacia.^[1418]

<< | >>

↑

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: Restitution and Valuation (if a1 6, then b)

More on the topic Actio Serviana: Restitution and Valuation (if a1 6, then b):