The nature of pignus
"Creditor quoque, qui pignus accepit, re tenetur: qui et ipse de ea ipsa re quam accepit restituenda tenetur."[1170] The fourth of the real contracts was pignus and it entailed the handing over of a thing in order to secure a debt.
Obviously the very same thing had to be restored by the creditor/pledgee to the pledgor once this underlying debt had been discharged (or otherwise extinguished). We can be fairly brief in our discussion; for the most important aspect of pignus was that it gave rise to a ius in rem, a (limited) real right in the property owned by the pledgor. Pignus was (and is) the paradigm of real security and as such it falls outside the ambit of our investigation.[1171] In the present context we are solely concerned with the obligatory side of pignus; for one of the requirements for pledging a thing was that pledgor and pledgee were in agreement about the creation of the pledge. A (formless) contract had to be concluded,[1172] and where in actual fact possession of the pledged property was transferred to the creditor/pledgee, we have the real contract of pignus. This was invariably the case in early law. In classical law, however, it came to be recognized that a right of pledge could be created even though the pledged property remained with the pledgor.[1173] It is clear that in these instances of (purely contractual) pledges without possession the real right pignus was no longer based on the real contract of pignus.2.
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- 12 Adaptedness of Pignus and Hypotheca
- CHAPTER 7 Commodatum, Depositum, Pignus
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