Origin of the Actio Serviana

One cannot exclude that the actio Serviana originally was closely connected to the interdictum Salvianum and was confined to tenant's pledges, certainly if the interdict operated inter partes only.

It may have been the famous jurist Servius Sulpicius Rufus who—in the first century bc—strengthened the transactional practice of pledging invecta et illata, by creating a new action with which the assets could be recovered from third parties. At the latest, in Hadrian's Edictum perpetuum the standard form of action for tenant's pledges would have been replaced with the generalized formula.^[454] ^{^[455] As a general edictal action available to all pledge creditors, the actio Serviana may thus have been introduced by Julian in the second century ad, when he drafted the Edictum perpetuum. Alternatively, as put forward by Magdelain, the generalized actio Serviana may have found its edictal basis in the edictum de pactis by the first century bc, as the action with which the conventiopignoris could be enforced against both the debtor and third parties. The most plausible interpretation is that the actio Serviana indeed originated in the first century bc as a general remedy, but found its place in a separate edict in the praetor's edict alongside the actio Publiciana.^[456] Invecta et illata
The creditor with a possessory pledge may, already in Cato's time, have been entitled to request the granting of possessory interdicts by which others were restrained from interfering with his possession of the pledged property and institute the actio furti.^[457] Hanard has even argued that the jurisdiction clause in c. 149 of Cato's De agricultura attests the oldest appearance of (what he calls) the action de rebus coloni, which later served as the prototype for the actio Serviana.^[458] For the tenant's pledge of invecta et illata the element of physical control was lacking, which may explain why the actio Serviana may have originally been created for this type of pledge only.
The non-possessory nature of tenant's pledges may have entailed a greater need for creating a legal remedy which would allow the landlord to recover possession from third parties than for ordinary possessory pledges, certainly if the interdictum Salvianum only operated inter partes. One cannot rule out, therefore, that the actio Serviana originally was introduced for tenant's pledges only. Servius Sulpicius Rufus was responsible for much of the Roman law of urban leasehold/^[459] so that it is certainly not impossible that it was this great jurist who did create the actio Serviana specifically for tenant's pledges. An argument supporting the hypothesis that the scope of the actio Serviana was originally confined to tenant's pledges is that in three texts from the Corpus iuris civilis, the general pledge remedy is called actio quasi Serviana, although only one of these texts is from the classical period. Gai. D. 16.1.13.1 speaks of ‘quasi serviana quae et hypothecaria vocatur. The reference to quasi serviana has been explained as it being an extension of the actual actio Serviana, the latter's scope being confined to tenant's pledges. There are other possible explanations, however, for the term actio quasi Serviana. Gaius may have used quasi because of the fact that his opinion concerned an adapted version (utilis) of the actio Serviana, or because he was commenting on the provincial edict and therefore not on the actual actio Serviana of the edict of the praetor urbanus.^[460] Before Gaius, the expression quasi serviana is never attested, not even in texts clearly dealing with other pledges than tenant's pledges.9⁷ Neither did the addition quasi become commonplace after Gaius. The only other texts in the Corpus iuris civilis in which we find it are from Justinian's Institutes?⁸ This work from the sixth century ad was based on Gaius's Institutes and the use of actio quasi Serviana could be explained by the author's reverence for his predecessor Gaius.
Therefore, neither the occurrence of the expression actio quasi Serviana in Gai. D. 16.1.3.1 nor that in Just. Inst. 4.6.7 and 4.6.31 are decisive proof for the hypothesis that the scope of the actio Serviana was originally restricted to tenant's pledges." Pre-Julian Digest texts
The main argument in modern literature in favour of the relatively late evolution of the actio Serviana into a general remedy is that there are no sources mentioning the actio Serviana as a general pledge remedy from before Julian.¹⁰⁰ It is risky, however, to attach too much value to statistical data of this kind.101 The absence of the actio Serviana in the early classical jurists' writings may also simply be a consequence of the relatively limited number of early classical texts (in general and on pignus specifically) which have survived in the Digest. For instance, the interdictum Salvianum (which undoubtedly was introduced in the first century bc) is also not mentioned in Digest texts from Julian's predecessors. The only remedy specifically available for pignus (invecta et illata) that is mentioned expressis verbis by the early classical jurists is the interdictum de migrando.¹⁰² There are, moreover, Digest texts from before Julian which could be interpreted as assuming the existence of a general actio Serviana or an adapted action granted to pledge creditors other than landlords: in particular Octavenus's opinion in Marci. D. 20.3.1.2.10³ Emperor Augustus had issued an edict which provided that any purchase— from a seller not in possession—of property which was the object of litigation (res litigiosa) was void."¹⁴ When the purchaser would institute the rei vindicatio against the possessor, the latter could raise the exceptio rei litigiosae. In D. 20.3.1.2 Marcian mentions the opinion of Octavenus that the scope of this exception should be extended to situations where res litigiosae were pledged. The pledged property was land, so that it could not have concerned a tenant's pledge of invecta et illata.
This could be regarded as an indication that the actio Serviana as a general remedy was recognized before Julian.™⁵ " For a different view, see Krämer 2007: 41.
100 The reference by Celsus in Ulp. D. 20.1.14 to ftersequi pignora must be to the actio Serviana sanctioning a tenant's pledge.
101 Wubbe and Pichonnaz 2003: 219. ^W2 For example, Paul. (Lab.) D. 43.32.1.4.
103 The other text is Cels. D. 46.3.69. See Krämer 2007: 291-8.
104 Fragmenta de iure fisci, Fol. I, nr. 8, FIRA II, 628. See also Gai. Inst. 4.117; Ulp. D. 44.6.1 and 2; Sev.-Ant. C. 8.36.1. See Kaser and Hackl: 1996: 298.
105 In this sense firmly, Manigk 1904: 42. More carefully, Krämer 2007: 293-8. It has also been argued that Octavenus wrote after the Edictum perpetuum (with the generalized actio Serviana) was codified, but this is not the prevailing opinion in modern literature (Krämer 2007: 295-6).
Octavenus was active around the turn from the first to the second century ad.^[461] The case on which he gave his opinion must have been one in which a pledge was created by a debtor who was not in possession of the pledged land. The Augustan edict—as extended to pledge—would apply to situations in which A would grant a pledge to B, while the pledged property was in the possession of C and the subject matter of litigation between A and C. B would then try to obtain possession by instituting an actio in rem against C, against which C could invoke the exceptio rei litigiosae. This actio in rem must have been either the actio Serviana, or—in any case—an adapted version thereof. The security over the land could also have been by way offiducia, but then it would be odd that Marcian included it in a comment on the actio Serviana (hypothecaria).^[462]
In section 6.4 three late republican or early classical texts will be reviewed which appear to recognize a non-possessory pledge long before Julian. One would expect the creditors to whom these rights of pledge were granted to have had either the actio Serviana or an adapted version (actio in factum, actio utilis) at their disposal in order to recover these assets from third parties in possession.10^[463] Even if the actio Serviana was originally confined to tenant's pledges, then perhaps already in the period shortly after its introduction it was extended (through actiones in factum or utiles) to other forms of pledge.™^[464] ^{^[465]} This may have resulted in the actio Serviana having been included in the praetor's edict as a general pledge remedy by the beginning of the classical period.110
Actio Serviana within scope of edictum depactis?
More than fifty years ago the French legal historian Andre Magdelain developed an elegant theory which supported the conclusion that the general actio Serviana originated in the late Republic and that its central element by that time was the conventio pignoris. Magdelain's point of departure is the fact that the praetor's edict contained an edictum de pactis.^[466] According to the classical jurists this edictum de pactis had a limited scope, which was confined to the so-called exceptio pacti conventi.
This defence could be used when instituting an action that would be in violation of an additional agreement (pactum adiectum) or of a promise made in relation to an existing contract (e.g., pactum de non petendo).^[467] It would be odd, however, if the ambitious promise to enforce pacta conventa would as a matter of positive law always have had this limited scope. Moreover, a separate edict on defences would be an anomaly.“^[468] The original purpose of the edict on pacts must have been to make agreements enforceable, which did not fit into one of the pigeonholes of the types of contracts (stipulatio, mutuum, etc.) recognized by the ius civile or sanctioned elsewhere in the praetor's edict. For these reasons Magdelain argues that as the right of pledge was created pursuant to a pactum conventum, it would originally have been within the scope of the edictum de pactis.^[469] Accordingly, a special edict was not necessary for the action with which this pactum conventum—the conventio pignoris—could be enforced: the actio Serviana. In contrast with these special edicts (in which the praetor's promise was immediately followed by the form of action), the general edict was separated from the actions which were based on it. Because of its connection with the interdictum Salvianum, the formula of the actio Serviana found its place in the praetor's edict immediately after this interdict.“^[470] If Magdelain's hypothesis could be proven it would have far-reaching implications for the time of origin of the actio Serviana as the general pledge remedy. Magdelain's theory, if true, would also explain the anomalies that the actio Serviana did not have an introductory edict and that it was part of the same edict as an interdict. In Lenel's reconstruction of the Edictum perpetuum § 265 on the interdictum Salvianum, is immediately followed by § 266 on the actio Serviana.^[471] ^{^[472] ^[473] Combining the formulae of an interdict and an action, two fundamentally different remedies, is an anomaly.“⁷ Another anomaly is that in Lenel's reconstruction the actio Serviana does not have an introductory edict.}
Lenel justifies this by the fact that no trace of an introductory edict can be found in the sources.11⁸ Again, this is problematic as there is no doubt that this action is a creation by the praetor and thus part of the ius honorarium. While actions belonging to the ius civile did not need an introductory edict, because they were long recognized and did not need the praetor's support, actions belonging to the ius honorarium did. Kaser has argued that the interdictum Salvianum itself functioned as the introduction of the subsequent formula of the actio Serviana. This explanation is rightly rejected by Magdelain, and later by Wubbe and Pichonnaz as ‘une these en soi si peu convaincante’^[474] Separate edict for actio Serviana
Inspired by Magdelain's writings, Wubbe and Pichonnaz developed a theory on the origin of the actio Serviana which, on balance, I consider the most plausible one.i^[475] ^{^[476] ^[477] They argue that the actio Serviana is closely related to the actio Publiciana and was introduced in the same period in the first century вс, during the transition from the legisactio procedure to the formulary procedure.^ Wubbe and Pichonnaz suggest that the praetor's edict included a separate edict for the actio Serviana, which could be reconstructed as follows:}
Si quis rem propter pecuniam debitam sibi obligatam petet iudicium dabo.
If someone claims that something has been charged to him for money owed
I will grant an action. 122
This edict could have found its place in the praetor's edict alongside the actio Publiciana, in a section entitled by Lenel: XV—De his quae cuiusque in bonis sunt.¹²³ The replacement of the legisactio procedure with the formulary procedure and the ensuing differentiation of fiducia as full and absolute ownership and pignus as a subordinate real right (ius in re aliena) had the consequence that the pledge creditor did no longer have a specific actio in rem in order to recover pledged objects from third parties in possession. While in case offiducia the creditor would have the ownership-based rei vindicatio to recover the property from third parties, for the creditor to whom a right of pignus was granted the ius civile no longer offered an action.^[478] The general legis actio sacramento in rem was not superseded by a more specific ‘vindicatio pignoris’.^[479] In a number of late classical texts the actio Serviana is called vindicatio pignoris or referred to in terms of (pignus) vindicare.^[480] ^{^[481] ^[482] ^[483] The term vindicatio, however, which is normally used for actions based on the ancient ius civile (rei vindicatio, vindicatio servitutis, vindicatio ususfructus), here denotes the praetorian actio Serviana. The use of this ‘civilian' term may be a reflection of the fact that pignus itself finds its origin in the ancient ius civile rather than in the ius honorarium. Even the praetorian actio Serviana can thus be regarded as the historical descendant of an action rooted in the ius civile: the legis actio sacremento in rem. All actiones in rem ultimately derive not from newly created law by the praetor but from long-standing institutions of the ius civile. 12⁷}
In the legisactio procedure the judge had to decide whether the claimant had to be regarded as owner in relation to the defendant (relative ownership), while in the formulary procedure the judge had to decide whether the claimant was the owner vis-à-vis the whole world (absolute ownership). For possessors in good faith who were in the process of usucapting a thing, this entailed that there was no longer an actio in rem available to them. The gap thus left was filled by introducing the actio Publiciana, which again allowed the judge to decide whether the claimant had to be regarded as the owner in his relationship with the defendant. The actio Serviana did provide a ‘relative protection' of the same kind. When the property had been pledged by someone who was not the civilian owner but a bona fide possessor on the way to usucapio, the actio Serviana could be instituted against any possessor of the property, with the exception of the civilian owner and his successors.^⁸ The right of pledge was a relative right, which was not enforceable against certain superior title holders.12⁹ Operating like this is characteristic of praetorian law and both the actio Publiciana and the actio Serviana are typical examples of it.^[484] For usucaptors a praetor named Publicius created the actio Publiciana, which was modelled after the rei vindicatio. Around the same time (ca. 50 bc) the famous jurist Servius Sulpicius Rufus invented a related remedy for the creditor with a right of pledge: the actio Serviana.^[485] It is tempting to think that this brilliant jurist—Cicero's deeply admired friend—who ‘laid down a basic structure that would not be much altered by the jurisprudence of subsequent centuries',13^[486] ^{^[487] was responsible for one of the last and most significant legal innovations from the late Republic. Would this organizer of Roman law into a ‘new logical and systematic framework'^ have settled for an actio Serviana with a limited scope (invecta et illata) rather than recognizing a general pledge remedy analogous to the actio Publiciana?^[488]}
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Source: Verhagen Hendrik L.. Security and Credit in Roman Law: The Historical Evolution of Pignus and Hypotheca. Oxford University Press,2022. — 448 p.. 2022

Origin of the Actio Serviana

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