The actio pigneraticia contraria

We have thus far been dealing with the pledgor's (contractual) remedy against the pledgee. However, just like the commodatary and the depositary, the pledgee might have incurred expenses or suffered damages; hence the need for a iudicium contrarium.

"Si necessarias impensas fecerim in servum aut in fundum, quem pignoris causa acceperim, non tantum retentionem, sed etiam contrariam pigneraticiam actionem habebo: finge enim medicis, cum aegrotaret servus, dedisse me pecuniam et eum decessisse, item insulam fulsisse vel refecisse et postea deustam esse, nee habere quod possem retinere."

Originally, a ius retentionis seems to have been available to the pledgee: he did not have to return the pledge until he had been reimbursed for his necessary expenses. But what if there was nothing to retain any more? A slave had been pledged and had fallen sick. The medical bill was paid by the pledgee, but then the slave died. Here a ius retentionis did not help the pledgee as far as recovery of the medical expenses was concerned. Thus he was given the actio pigneraticia contraria.²⁸⁴

Damages, on the other hand, could always be claimed under the provisions of the actio de dolo.^[1190] But it was soon realized that this general remedy was too restricted and thus not able to provide satisfactory protection of the pledgee's reasonable expectations. It was felt especially that the pledgee could expect the pledged property to

³⁹ Inst. Ill. 14. 4: cf. also Ulp. D. 13. 6. 5. 2.

³¹ Inst. Ill. 14. 4: De Robertis. Responsabilite contrattuale, pp. 345 sqq.

³ Cf. e.g. Accursius. gl. Exactam ad. I. 3. 15.

^2K2 Paul. D. 13, 7, 14: "Ea igitur, quae diligens pater familias in suis rebus praestare solet, a creditore exiguntur."

²⁰ Justinian merged pignus and fiducia; it Is therefore often difficult to decide with which of these two forms of security the classical authors in actual fact dealt.

³¹ Cf. further C. 4. 24. 7. 1 (Gord.l.

³⁵ Ulp. D. 13. 7. 36. 1.

belong to the pledgor and not to have been otherwise encumbered. The problems arising from res aliena pignori data vel alii obligata are discussed in a variety of texts; the picture that emerges is that the pledgor seems to have been strictly liable for these legal defects. In Paul. D. 13,7, 16, 1 the position is summed up in the following words:

"Contrariam pigneraticiam creditori actionem competere certum est. proinde si rem alienam vel alii pigneratam vel in publicum obligatam dedit, tenebitur, quamvis et stellionatus crimen committat, sed utrum ita demum, si seit, an et si ignoravit? et quantum ad crimen pertinet, excusat ignorantia: quantum ad contrarium iudicium, ignorantia eum non excusat, ut Marcellus libro sexto digestorum scribit, sed si sciens creditor accipiat vel alienum vel obligatum vel morbosum, contrarium ei non competit. "^{285 [1191] [1192]}

This did not mean, however, that the pledgor would always be liable, regardless of fault, for damages caused to the pledgee. Ulpianus relates an incident where copper was given as a pledge instead of gold:

"Si quis in pignore pro auro aes subiecisset creditori, qualiter teneatur, quaesitum est. in qua specie rectissime Sabinus scribit... si in dando aes subiecisset, turpitur, sed et hic puto pigneraticiam iudicium locum habere, et ita Pomponius

fecisse..

It is clear fraudulent

from the context that Sabinus had been dealing with a manipulation on the part of the pledgor.^[1193] Pomponius seems to have granted the actio pigneraticia contraria under the same circumstances in which Sabinus originally used the actio de dolo.^[1194] In these "aes pro auro" cases,^[1195] the pledgor was liable for dolus in contrahendo.^[1196] Fraudulent behaviour on the part of the pledgor could, however, occur not only in the process of entering into the contract of pledge, but also when the pledge was returned.

"Si quasi recepturus a debitore tuo comminus pecuniam reddidisti ei pignus isque per fenestram id misit excepcuro eo, quem de industria ad id posuerit, Labeo ait furti te agere cum debitore posse et ad exhibendum: et, si agente te contraria pigneraticia excipiat debitor de pignore sibi reddito, replicabitur de dolo at fraude, per quam nee redditum, sed per fallaciam ablatum id intellegitur."^{[1197] [1198]}

The pledgee returns the pledge to his debtor in the expectation that the latter has come to repay the debt. Instead of doing that, the debtor takes the pledge and throws it out of the window. Outside he has posted an accomplice who has been instructed to catch the pledge. The pledgee, according to Pomponius, will succeed with his actio pigneraticia contraria,²⁹³ because even though the debtor might raise the exceptio de pignore sibi reddito (after all, the pledgee has returned the pledge to him), he will be able to counter this exceptio with a replicatio de dolo et fraude.

Instead of actively pursuing his claims against the pledgor by means of the contrarium iudicium, the pledgee could opt to wait and see: if he was sued under the actio pigneraticia, he could avail himself of his ius retentionis and refuse to hand back the pledge until his claims had been satisfied. The Emperor Gordian increased the strength of the pledgee's position by allowing him to retain the pledge even on account of any other claim that he might have against the debtor. On being sued for the return of the pledge, he could avail himself of the exceptio doli for i ■ 294

this purpose.

Besides, the actio furti (possessionis) and the actio ad exhibendum are applicable.

²⁴ C. 8, 26, 1, 2; Enzo Nardi, Studi sulla ritenzione in diritto romana, vol. I (1947), pp. 203 sqq.; cf. also Story, Bailments, pp. 304 sq.