The actio pigneraticia

(a) The formula in factum concepta

Turning our attention back, therefore, to the pledge with possession, we must first of all consider the pledgor's position once the obligation which the pledge was designed to secure had fallen away.

Of course, the pledgor had always been able to avail himself of the rei vindicatio.^[1174] This remedy could be used to claim the object back from any third party, not only from the pledgee. But it involved proof of ownership ex iure Quiritium—often a difficult stumbling block for the pledgor/owner. For the actio Publiciana, on the other hand, his "in bonis esse" was required.^[1175] Where these actions were unavailable, the plaintiff was probably able to resort to the condictio.^[1176] It was from this root that a more specialized contractual remedy came to be developed by the praetors, namely the actio pigneraticia. In the edict it was proposed under the title "De rebus creditis" and in close connection with condictio and actio commodati.²⁴⁷ Like the actio commodati, it initially only had a formula in factum concepta, and has been reconstructed by Lenel as follows:

"Si paret A^ra A^ra № № rem qua de agitur ob pecuniam debitam pignori dedisse eamqua pecuniam solutam esse eove nomine satisfactum esse aut per N^ra N^ra stetisse, quo minus solveretur, eamque rem A° A° redditam non esse, quanti ea res erit, tantam pecuniam index N^ra N^ra A° A° codemnato, si non paret, absolvito."^[1177]

Three comments might be apposite. "Pignori dedisse", in this form of action, still reflects the idea that the pledge had to be handed over. Nevertheless, the actio pigneraticia was also available in cases of non- possessory pledges, where the creditor had subsequently managed to get hold of the object.^[1178] Furthermore, it is not stated in the intentio of the formula that the pledged object had to have belonged to the pledgor.

The actio pigneraticia was therefore applicable even where the pledgor had encumbered someone else's property^[1179]—that is, in a situation where the real right of pledge did not come into existence.^[1180] ^{^[1181]} Finally, still according to the intentio, the action could be brought not only where the underlying debt had been discharged or where the creditor had defaulted, but also where the latter had been (otherwise) "satisfied on that account". When or whether such "satisfaction" had taken place was decided solely from the creditor's own point of view. It did not matter whether he had in actual fact received what was owed to him, or at least an equivalent in value, as long as he regarded himself as satisfied:

"satisfactum autem accipimus, quemadmodum voluit creditor, licet non sit solutum: sive aliis pignoribus sibi caveri voluit, ut ab hoc recedat, sive fideiussoribus sive reo dato sive pretio aliquo vel nuda conventione, nasdtur pigneraticia actio, et generaliter dicendum erit, quotiens recedere voluit creditor a pignore, videri ei satisfactum, si ut ipse voluit sibi cavit, licet in hoc deceptus sit."²⁵’

With this wide and subjectivized interpretation of the term "satisfactum" the Roman lawyers tried to cover all situations in which a need for retention of the security could no longer be taken to exist.

(b) The formula in ins concepta

The formula in factum concepta dates back to the times of the early Republic. As in the case of commodatum, the classical lawyers developed a more flexible alternative in the form of a formula in ius concepta with an "ex bona fide" clause as its essential characteristic. It started off with a demonstratio defining the facts of the case: "Quod A° A° № № mensam argenteam qua de agitur ob pecuniam debitam pignori dedit" and carried on in the normal way: "... quidquid ob earn rem N^m N^m A° A° dare facere oportet ex fide bona, eius iudex N^m N^m A° A° condemnato, si non paret, absolvito.^1,158 Besides allowing the judge to take into consideration whether the pledgee/creditor had complied with the requirements of good faith, ⁹ this formula was much better suited to deal with a specific problem arising after realization of the pledge.

If the creditor did not obtain satisfaction and he thereupon sold the pledged property, the proceeds of this sale might easily exceed the sum of the debt owed to him. It would seem reasonable, under these circumstances, to allow the pledgor to claim superfluum,^[1182] but it is difficult to see how that could have been achieved under the formula in factum concepta. "Quanti ea res erit" refers to the pledged property, for the monetary value of which the judge could (or could not) condemn the defendant. The intentio incerta of the formula in ius concepta left the judge much more freedom; he could condemn in "whatever the defendant ought on that account to give to (or to do for) the plaintiff": be it the pledged property or its value, be it a superrluum after sale.

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

The actio pigneraticia

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