Pignus

As noted in the chapter on the law of property, pignus or pledge was a form of real security that was established when a debtor or third party handed over a corporeal thing to the creditor as security for a debt on the understanding that the creditor would return the property when the debt was duly paid.

Pignus was an imperfectly bilateral contract that gave rise to rights and obligations in respect of both the pledgor as well as the pledgee. As long as the pledged object remained in his possession, the pledgee was in principle not allowed to use it unless expressly authorized by the contract.^[712] If he did so in bad faith, he could be found guilty of theft.^[713] Furthermore, if he did not properly exercise care of the object in question and this entailed damage or destruction then pursuant to the law of Justinian the pledgee was liable for dolus and culpa levis in abstracto (in classical law probably also liable for custodia).^{[714] [715]} But the principal obligation of the pledgee pertained to his duty to return the pledged thing in a proper condition as soon as the debt was extinguished. If he failed to do so, the pledgor could claim the return of the thing or damages by means of a personal action known as actio pigneraticia ¹⁵ On the other hand, the pledgee could institute the actio pigneraticia contraria against the pledgor for expenses incurred by him in respect of safekeeping the object or for damages he suffered owing to the mala fides of the pledgor.^[716] If the secured debt was not satisfied, the pledgee was entitled to sell the pledged object. In such case, the pledgor could claim the residue (superfluum) of the selling price if the price exceeded the debt for which the pledge had been given.^[717]

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