Execution of Pignus Nominis

There is a late classical imperial constitution from ad 225, which indicates how the pledge creditor should take recourse against the proceeds obtained with the adapted action.

Alex. C. 8.16.4 Quare si debitor is satis non facit, cui tu credidisti, ille, cuius nomen tibi pignori datum est, nisi ei cui debuit solvit nondum certior a te de obligatione tua factus, utilibus actionibus satis tibi facere usque ad id, quod tibi deberi a creditore eius probaveris, compelletur, quatenus tamen ipse debet.

So if a debtor to whom you have extended credit does not give satisfaction (to you), the person whose account was given to you as a pledge, unless he paid his creditor before learning from you of your obligation (that you had acquired against him), is compelled by analogous action to give satisfaction to you up to the amount that you prove was owed to you by his creditor, but within the amount he himself owes.

This constitution indicates that the pledge creditor's right to demand payment from the debtor of the pledged claim was subject to a double ceiling: it was limited not only to the amount of the pledged claim but also by the amount of the secured debt.^[905] However, not only Pomponius (in Marci. D. 20.1.13.2) but also Paul (D.

Although there are no texts on the multiple pledge of claims in the Corpus iuris civilis, one would expect pledge creditors' rights to take recourse against pledged claims to have been subject to the same principles as would apply to the execution of pledged tangible assets. The first ranking pledge creditor would be exclusively entitled to collect the pledged claims (or sell them) and would be obliged first to pay over the surplus to lower-ranking pledge creditors in accordance with their rank and then pay any remainder to the pledge debtor.4^[907]

Non-monetary claims

The pledge debtor may also have been a creditor of non-monetary claims. In particular, he may have been a purchaser of tangible property (e.g., real estate, slaves, cattle) which had not yet been transferred to him. The corresponding claim against the seller for conveyance of the sold property could also be pledged and it could then also be enforced by the pledge creditor.^{[908] [909] Let us suppose that the pledge debtor had purchased land from Negidius, while agreeing that it would be conveyed after six months. The pledge debtor pledged the claim for conveyance against seller Negidius in order to secure a loan obtained from the pledge creditor. When Negidius, after having been sued by the pledge creditor with an adapted actio Serviana for conveyance, transferred possession of the land to the pledge creditor, the latter would acquire a possessory pledge of the land/1 This possessory pledge could in its turn be executed in accordance with the general execution rules, in particular by auctioning the land.[910] One would expect that if the seller refused to convey the sold property but elected to pay its value instead (condemnatio pecuni­aria), this would be treated in the same way as if the pledge creditor had col­lected a pledged monetary claim: the pledge creditor would apply the collected proceeds in order to discharge the secured debt.}

The adapted action: reconstruction

The actions which pledge creditors could institute in order to demand pay­ment of pledged claims were modelled after the actio Serviana. However, they will also have contained elements of the standard contractual actions included in the praetor's edict for the various types of pledged claims (e.g., condictio, actio ex stipulatu, actio venditi, actio locati).^{[912] [913] Thus, for a pledged claim for the payment of 10,000 sesterces arising under a contract of stipulatio, the formula of this adapted action could hypothetically be reconstructed as follows:}

51 paret inter Aulum Agerium et Lucium Titium convenisse, ut decem, quae Numerium Negidium Lucio Titio dare opportet, Aulo Agerio pignori essent propter pecuniam debitam, eamque pecuniam neque solutam neque eo nomine satisfactum esse neque per Aulum Agerium stare quo minus solva­tur, iudex Numerium Negidium Aulo Agerio decem condemnato, si non paret absolvito.

If it appears (af) that it had been agreed between Aulus Agerius and Lucius Titius that the 10,000 sesterces, (af which Numerius Negidius ought to give Lucius Titius, would be pledged to Aulus Agerius (a₂) for money owed, (a4) that this money has not been paid nor otherwise satisfaction has been given for this claim and it is not because of Aulus Agerius that nothing has been paid, (b’) do you, judge, condemn Numerius Negidius to Aulus Agerius for 10,000 sesterces; if it does not appear you shall absolve him/5

Condition a1 of the original formula has been replaced with condition a’1, in order to reflect the different content of the pledge agreement. Condition a3 of the actio Serviana, that the pledged property should have been in bonis of the debtor, has been deleted from the adapted form of action.

Not only would the pledge creditor Aulus Agerius have to prove that a conventio pignoris had been agreed purporting to pledge the claim for 10,000 sesterces which Lucius Titius had against Numerius Negidius pursu­ant to stipulatio. The formula would also have to reflect that the defendant (Numerius Negidius) would only be condemned if it appeared that he owed 10,000 sesterces to the pledge debtor Lucius Titius. In other words, the for­mula of the adapted action should not only refer to the conventio pignoris and (some of) the other conditions of the actio Serviana (secured debt, solu­tio, satisfactio, and mora creditoris) but should also be subject to the same condition (dare opportet) as would be included if Lucius Titius himself had instituted the condictio against Numerius Negidius.^{[914] [915] This combination of conditions can be called an adapted actio Serviana. According to Selb, how­ever, the actio utilis granted to a creditor in case of a pignus nominis rather is an adaptation of the action with which the pledged claim is enforced (e.g., condictio).57 Also, Smit (elaborately) rejects the characterization of the pledge creditor's action as an adapted actio Serviana.5* What really matters is that this adapted action contains elements of both the actio Serviana and the action of the pledged debt (e.g., condictio). Whether one calls this action an adapted actio Serviana or an adapted condictio would be a matter of indif­ference to the Roman jurists.}

Execution sale of pledged claims

Would the pledge creditor have had the power to sell the pledged claims by way of execution sale?^[916] The sale itself would not be problematic. We have seen that already in the Republic claims were sold. In one of his letters to Atticus, Cicero mentions emptio ab hasta as one of the ways of realizing a claim which was due to him from Caesar.^[917] For pignus in causa iudicati captum the possibility of selling debtors' claims is confirmed by Ulpian.

D. 42.1.15.10. Ulpianus libro tertio de officio consulis. Item quid dicemus? utrum ipsi iudices convenient nomen exigentque id quod debetur et in causam iudicati convertent, an vero vendent nomen, ut pignora corporalia solent? et necesse est, ut quod eis facilius videatur ad rem exsequendam, hoc faciant.

What do we say? Are the judges to enforce the debt and demand what is due to apply it to satisfaction of the judgment, or do they sell the debt as they would sell pledged corporeal things? It must be said that they should adopt the course which, they think, would more easily achieve their object.

Where an attachment has been levied on a claim, the iudices assisting the creditor have a choice: they can either demand payment from the debtor of the pledged claim or they can sell it.^{[918] [919] [920] It is by no means inconceivable that Ulpian's opinion on the execution sale of attached claims served as a prece­dent for conventional pignus nominis, or that they were subject to the same rules. Creditors who by virtue of their (conventional) right of pignus were entitled to demand payment of the pledged claim may also have had the option of selling it, in particular where the pledged claim was not yet due and payable.62}

In comparison with an ordinary sale by the creditor of the sold claim him­self, there is an additional complication here/³ The substitutes for a true assignment—procuratio in rem suam, novation, and delegation—would all require the co-operation of the original creditor as assignor. But when claims are sold by a pledge creditor by way of execution, the pledge debtor may not be willing to co-operate. The pledge creditor could have instituted the actio pigneraticia contraria in order to try to compel the pledge debtor to assign the claim to its purchaser at an execution sale. However, this would be time­consuming and ultimately the pledge debtor could only be condemned to pay money, which would not really help where he was insolvent. Perhaps the pledge creditor was authorized to act instead of the pledge debtor, on the analogy of his power of sale where tangible property was sold by way of execution. The purchaser of the pledged claim may also have been granted an actio utilis against the debtor of the pledged claim, with which this purchaser himself could demand payment.

8.4