Terminology
In the sources the term ‘pignus' (‘pledge') is often used as the generic term for possessory and non-possessory pledges, while the term ‘hypotheca' usually (but by no means always) denotes non-possessory pledges specifically?3 In this book, however, the term ‘hypotheca' will be reserved for non-possessory pledges.
The term ‘charged property' (res obligata) will be used as a general term for all property which serves as collateral, by way of pignus and hypotheca, fiducia cum creditore, and fiscal pledges (privileges). I will use both ‘fiducia cum creditore’ and ‘fiducia’ in order to designate a fiduciary transfer of ownership for security purposes. The debtor who has granted a right of pledge will usually be simply referred to as the ‘debtor' and the creditor to whom it has been granted as the ‘creditor'.[24] However, in particular where it is important to distinguish these parties from other debtors and (‘ordinary', non-secured) creditors, I will use the terms ‘pledge debtor' and ‘pledge creditor'. I will sometimes use the adjective ‘conventional' in order to refer to a right of pledge that is based on a pledge agreement (conventio pignoris) governed by private law. The conventional pledge is thus contrasted with pledges arising by operation of law (e.g., in favour of the fiscus) and security governed by public law. The body of legal rules concerning pignus, hypotheca, and fiducia cum creditore will usually be referred as the ‘law of real security' or ‘law of secured credit', while the rules governing pignus and hypotheca specifically will be referred to as the ‘law of pledge' or ‘law of pignus and hypotheca’.
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