Interdictum de Migrando and Interdictum Salvianum

Interdictum de migrando

It is very likely that the interdictum de migrando was introduced in the latter part of the first century bc, but the precise moment is unknown. This must, in any case, have taken place before the reign of Augustus (27 bc), because Labeo commented upon itTh The interdict's scope was confined to urban ten­ancies and was introduced to prevent abuse by the landlord of his right to lock out the defendant.7⁸ The praetor would order the landlord to release assets which were not within the scope of the tenant's pledge or because the rent had been fully paid. As such it is an early example of ‘legislative' interven­tion in order to protect debtors granting security/⁹ This is interesting, also given the fact that—as we will see in later chapters—in the late Republic and much of the classical period the praetor was mainly concerned with expand­ing the scope of the legal institution of pignus and its remedies. Here the prae­tor fixed the exact scope of an already existing remedy/⁰ In the late classical period the interdictum de migrando had lost much of its practical significance because there was a more effective procedure available, which may explain why so few texts on this interdict are included in the Digest/¹

The formula of this interdict (which assumes that the asset pledged as invecta et illata is a male slave (homo)) has been preserved in a late classical fragment:

D.

The praetor says: ‘If the person in question is not one of the objects included in the agreement between you and the plaintiff, according to which things introduced or imported into the dwelling in question, or born or made there, should be a pledge to you for the rent of the dwelling; or if he is included among those things but the rent has been paid to you, or satisfaction given, or if it is your fault that payment has not been made, I forbid the use of force so as to prevent the person who brought him in by way of pledge from tak­ing him away from there.’^{[447] [448]}

The point of reference of the interdict is a pledge agreement in which the landlord and tenant have agreed that assets introduced or imported into the rented premises, or born or made there, are pledged for the rent. Whenever the situation is outside the scope of such agreement, the praetor shall order the landlord to allow the tenant to take away assets which are situated on the premises. Thus, where a slave who happens to be in a rented house at the moment the landlord locks out the tenant clearly was not meant to be pledged (e.g., because he did not live on the premises and was normally employed elsewhere), he has to be released by the landlord/³ When the rent has been paid, the landlord must allow the tenant to take away all his assets which are present on the premises at the end of the lease.

In one of the earliest recorded opinions on pignus we find further refine­ments on the relationship between the interdict and the rent owed by the tenant.

Interdictum Salvianum

In practice it would normally be relatively easy to lock out a tenant from a rented house or apartment. In case of farms and agricultural land this would often be more difficult. In any case, the right to lock out the tenant did not exist in respect of tenant-farmers (coloni). Here, relatively late, a new remedy needed to be invented, pursuant to which the landlord could take possession of invecta et illata. This new remedy was the interdictum Salvianum. It would allow the landlord to take actual possession of the tenant's assets, so as to prevent the tenant from removing them from the premises or for taking recourse against them by way of execution sale. In his Institutes, Gaius gives the following description of the interdictum Salvianum.

Gai. Inst. 4.147. Interdictum quoque, quod appellatur Salvianum, apiscen­dae possessionis causa comparatum est, eoque utitur dominus fundi de rebus coloni, quas is pro mercedibus fundi pignori futuras pepigisset.

The interdict known as Salvian is also for obtaining possession. This is used by a landowner to obtain things pledged by his tenant for future rents.

We do not know exactly when the interdictum Salvianum originated. Cato does not refer to it: the interdictum Salvianum is unlikely to already have existed when De agricultura was written.^[449] In modern literature its origin is said to lie in the second half of the first century bc, not long before the actio Serviana was introduced.^{[450] [451] [452] [453] In the Digest only a few fragments on the interdic­tum Salvianum have been preserved/6}

In modern literature it is highly controversial whether the interdictum Salvianum could only be invoked against the tenant, or whether the landlord could also use it against third parties who were about to remove pledged objects from the land or who were already in possession/⁷ If the scope of the interdictum Salvianum was confined to the contractual relationship between landlord and tenant, for farm tenancies it would have had the same function as the perclusio for urban tenancies, the difference being that the interdict was a legal remedy while perclusio was a self-help one/8 There is a constitution by emperor Gordian from 238 ad which does indeed state that this interdict can only be invoked against ‘the tenant or debtor/⁹ In the Digest title D. 43.33 (De Salviano interdicto) there is, however, an opinion by Julian which implies that the interdictum Salvianum utile could be instituted against the purchaser of a pledged object.

D. 43.33.1 pr. Iulianus libro quadragensimo nono digestorum. Si colonus ancillam in fundo pignoris nomine duxerit et eam vendiderit, quod apud emptorem ex ea natum est, eius adprehendendi gratia utile interdictum reddi oportet.

If a tenant brings a female slave on the farm by way of pledge and sells her, then to acquire possession of what is born to her when she is with the buyer, an adapted interdict (utilis) should be granted.

Where a female slave, who had been subject to a pledge of invecta et illata, was sold and delivered by the tenant, the purchaser could be ordered with the adapted version of the interdict to give back a child born to the slave at the purchaser's. Why would Julian have granted the interdictum Salvianum utile rather than the interdictum Salvianum itself? The most plausible way of reconciling Julian D. 43.33.1 pr. and Gord. C. 8.9.1 is to hold that the imperial constitution is on the interdictum Salvianum itself, while Julian's opinion is on the derivative interdictum Salvianum utile. The interdictum Salvianum directum operated inter partes, while the interdictum Salvianum utile worked

90

erga omnes.

4.5