The liability of the pledgee
Once again, one can see here that the debtor's position was fairly weak. If possible, he would rather have tried to discharge his debt and to ask the pledgee to restore the pledge.
To enable him to enforce this request*6H Cf. Ulp. D. 13. 7. 4 and Pomp. D. 13. 7. 5. who both mention a pactum ne veneat. Cf. Kaser, (1979) 47 TR 213 sq.; von Lubtow, Symbotae Taubenschlag, vol. HI, pp. 325 sqq.; Buckland/Stein, pp. 476 sq; Hausmaninger/Selb, p. 237; Honsell/Mayer-Maly/Selb, p. 199: Thomas, TRL, pp. 189 sq., 331; differently Burdesc, op. cit., note 265, pp. 141 sqq.; Frezza, Garanzie, vol. II, pp. 200 sqq. The pledgee had to notify the debtor of his intention to sell the pledge (denuntiatio): C. 8, 27, 4 (Alex.). In post-classical times, three denuntiationes were required: Levy, pp. 187 sq. Justinian comprehensively regulated and reformed the procedure: cf. C. 8, 33, 3 for all details.
28 Cf. Pap. D. 13. 7. 42; Marei. D. 20. 6. 8. 10; Pap. D. 20. 4. 17; C. 8. 27. 20 (Diocl.l; Kaser, Quanti ea res est (1935), pp. 78 sqq.
™ For details see Kaser. (19791 47 TR 212 sq.
271 D. 20. 5. 12. 1; Schwarz. (19541 71 ZSS 147 sqq.
272 Pap. D. 21. 2. 68 pr.; cf. also Paul. D. 20. 5. 10; Burdcse. op. cit.. note 265. pp. 173 sqq.; Frezza. Garan-ie, vol. II. pp. 208 sqq.; Kaser. (19791 47 TR 211 sq.. 224 sq. was, as we have seen, the main purpose of the actio pigneraticia. Of course, this remedy could not necessarily be brought only where the pledge was still in the pledgee's possession, but also where the latter could be held responsible for its loss or destruction. It is, however, very difficult to give a conclusive answer as to what was in actual fact expected of the pledgee in classical law, and how therefore the standard of liability was fixed.[1184] Ulpian D. 50, 17, 23 rates the pledgee among those persons liable for dolus and culpa.
This statement is confirmed by a variety of other fragments.[1185] On the other hand, in Ulp. D. 13, 7, 13, 1 we read the following in connection with the actio pigneraticia:[1186] "Venit autem in hac actione et dolus et culpa, ut in commodato: venit et custodia: vis maior non venit"; and seeing that Justinian tried to abolish the classical custodia liability, the words "venit et custodia" can hardly have been interpolated.[1187] There are writers, however, who have even regarded the various allusions to culpa as interpolated; they consider the pledgee as having been liable for dolus only."[1188] The most likely explanation for the confused state of our sources is that the question was controversial among the classical lawyers. An initial dolus liability was probably extended to cover cases of what we today would call negligence. After the formula in ius concepta with its bonae fidei clause had been introduced, some lawyers seem to have gone even further and advocated custodia liability, perhaps only for certain situations.[1189] Seeing, however, that a pledge is normally agreed upon for the benefit of both parties ("quia pignus utriusque gratia datur, et debitons, quo magis ei pecunia crederetur, et creditons, quo magis ei in tuto sit creditum"),279 the two extreme standards of dolus on the one and custodia on the other end of the spectrum do not really commend themselves as balanced solutions to the problem. Hence we find Justinian opting for culpa liability: "... placuit sufficere, quod ad earn rem custodiendam exactam dihgentiam adhiberet. "28° Thus, to all intents and purposes he settled the question; throughout the ages,281 the pledgee, in terms of the contract of pignus, has consistently been held responsible for culpa (levis).2825.
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