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 p915  Pignus

Article by George Long, M.A., Fellow of Trinity College
on pp915‑918 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

PIGNUS, a pledge or security for a debt or demand, is derived, says Gaius (Dig. 50 tit. 16 s238), from pugnus "quia quae pignori dantur, manu traduntur." This is one of several instances of the failure of the Roman Jurists when they attempted etymological explanation of words. [Mutuum.] The element of pignus (pig) is contained in the word pa(n)g-o, and its cognate forms.

A thing is said to be pledged to a man when it is made a security to him for some debt or demand. It is called, says Ulpian, Pignus when the possession of the thing is given to him to whom it is made a security, and Hypotheca, when it is made a security without being put in his possession (Dig. 13 tit. 7 s9 § 2; Isidor. Orig. V.25; see also Cic. ad Fam. XIII.56). The agreement for pledge which was made without delivery of the  p916 thing by bare agreement (nuda conventio) is properly Hypotheca (Inst. 4 6 §7). The law relating to Pignus and Hypotheca was in all essentials the same. The object of the pledging is that the pledgee shall in case of necessity sell the pledge and pay himself his demand out of the proceeds. The original nature of pledge perhaps was simply the power of holding a debtor's property as a means of compelling him to pay; and a power of sale would be a matter of agreement; but the later Roman jurists viewed a power of sale as a part of the contract of pledge.

A pledge may be given (res hypothecae dari potest) for any obligation, whether money borrowed (mutua pecunia), dos, in a case of buying and selling, letting and hiring, or mandatum; whether the obligatio is conditional or unconditional; for part of a sum of money, as well as for the whole (Dig. 20 tit. 1 s5). Any thing could be the object of pledge which could be an object of sale (Dig. 20 tit. 1 s9; Dig. 20 tit. 3 Quae res pignori vel hypothecae datae obligari non possunt), and it might be a thing corporeal or incorporeal; a single thing or a university of things. If a single thing was pledged, the thing with all its increase was the security, as in the case of a piece of land which was increased by alluvio. If a shop (taberna) was pledged, all the goods in it were pledged, and if some of them were sold and others brought in, and the pledger died, the pledgee's security was the shop and all that it contained at the time of the pledger's death (Dig. 20 tit. 1 s34). If all a man's property was pledged, the pledge comprehended also his future property, unless such property was clearly excepted. A man might also pledge any claim or demand that he had against another, whether it was a debt (nomen) or a thing (corpus) (Dig. 13 tit. 7 s18).

The act of pledging required no particular form, in which respect it resembled contracts made by consensus. Nothing more was requisite to establish the validity of a pledge than proof of the agreement of the parties to it. It was called Contractus pigneratitius, when it was a case of Pignus; and Pactum hypothecae, when it was a case of Hypotheca: in the former case, tradition was necessary. A man might also by his testament make a Pignus (Dig. 13 tit. 7 s26); for the Romans applied the notion of pignus to an annual payment left by way of legacy, and charged or secured on land (Dig.34 tit. 1 s12). The intention of a man to pledge could in any case be deduced either from his words or from any acts which admitted of no other interpretation than an intention to pledge.

A man could only pledge a thing when he was the owner and had full power of disposing of it; but a part owner of a thing could pledge his share. A man could pledge another man's property, if the other consented to the pledge at the time or afterwards; but in either case this must properly be considered the pledge of the owner for the debt of another. If a man pledged a thing, which was not his, and afterwards became the owner of it, the pledge was valid (Dig. 13 tit. 7 s20; 20 tit. 2 s5).

The amount for which a pledge was security depended on the agreement: it might be for principal and interest, or for either; or it might comprehend principal and interest, and all costs and expenses which the pledgee might be put to on account of the thing pledged (Dig. 13 tit. 17 s8, 25). For instance a creditor would be entitled to his necessary expenses concerning a slave or an estate which had been pignorated.

Pignus might be created by a judicial sentence, as for instance the decree of the praetor giving to a creditor power to take possession of his debtor's property (missio creditoris in bona debitoris), either a single thing, or all his property, as the case may be. But the permission or command of the magistratus did not effect a pledge, unless the person actually took possession of the thing. The following are instances:— the inmissio damni infecti causa [Damnum Infectum]: legatorum servandorum causa, which had for its object the securing of a legacy which had been left sub conditione or die (Dig. 36 4): missio ventris in possessionem, when the pregnant widow was allowed to take possession of the inheritance for the protection of a postumus: and the missio rei servandae causa. The right which a person obtained by such Inmissio was called Pignus Praetorium. It was called Pignoris capio, when the Praetor allowed the goods of a person to be taken who was in contempt of the court, or allowed his person to be seized after a judgment given against him (ex causa judicati).

There was also among the Romans a tacita hypotheca, which existed not by consent of the parties, but by rule of law (ipso jure), as a consequence of certain acts or agreements, which were not acts or agreements pertaining to pledging (Dig. 20 tit. 2 In quibus causis pignus vel hypotheca tacite contrahitur). These Hypothecae were general or special. The following are instances of what were General Hypothecae. The Fiscus had a general hypotheca in respect of its claims on the property of the subject, and on the property of its agents or officers: the husband, on the property of him who promised a Dos: and legatees and fideicommissarii in respect of their legacies or fideicommissa, on that portion of the hereditas of him who had to pay the legacies or fideicommissa. There were other cases of general hypothecae.

The following are instances of Special hypothecae:— The lessor of a Praedium urbanum had an hypotheca, in respect of his claims arising out of the contract of hiring, on every thing which the lessee (inquilinus) brought upon the premises for constant use (invecta et illata). The lessor of a Praedium rusticum had an hypotheca on the fruits of the farm as soon as they were collected by the lessee (colonus)º (Dig. 20 tit. 2 s7; 19 tit. 2 s24). A person who lent money to repair a ruinous house, had an hypotheca on the house and the ground on which it stood, provided the money were laid out on it; but there was no hypotheca, if the money was lent to build a house with or to enlarge it or ornament it. Pupilli and minores had an hypotheca on things which were bought with their money.

The person who had given a pledge, was still the owner of the thing that was pledged. He could therefore use the thing, and enjoy its fruits, if he had not given up the possession. But the agreement might be that the creditor should have the use or profit of the thing instead of interest, which kind of contract was called Antichresis or mutual use; and if there was no agreement as to use, the creditor could not use the thing, even if it was in his possession. The pledger could also sell the thing pledged, unless there were some agreement  p917 to the contrary, but such sale did not affect the right of the pledgee (Dig. 13 tit. 7 s18 § 2). If the pledger sold a movable thing that was pignerated, or that was specially hypothecated, without the knowledge and consent of the creditor, he was guilty of furtum. (Dig. 47 tit. 2 s19 § 6, and s68 pr.). If the pledger at the time of a pignus being given was not the owner of the thing, but had the possession of it, he could still acquire the property of the thing by usucapion, for the pledging was not an interruption of the usucapio [Possessio].

The creditor could keep possession of a pignorated thing till his demand was fully satisfied, and he could maintain his right to the possession against any other person who obtained possession of the thing. He could also pledge the thing that was pledged to him; that is, he could transfer the pledge (Dig. 20 tit. 1 s13 § 2). He had also the right, in case of his demand was not satisfied at the time agreed on, to sell the thing and satisfy his demands out of the proceeds (jus distrahendi sive vendendi pignus) (Cod. 8 tit. 27(28)). This power of sale might be qualified by the terms of the agreement; but a creditor could not be deprived of all power of sale; nor could he be compelled to exercise his power of sale. Gaius (II.64) illustrates the maxim that he who was not the owner of a thing, could in some cases sell it, by the example of a pledgee selling a thing pledged; but he properly refers the act of sale to the will of the debtor, as expressed in the agreement of pledging; and thus in legal effect, it is the debtor who sells by means of his agent, the creditor. An agreement that a pledge should be forfeited in case the demand was not paid at the time agreed on, was originally very common; but it was declared by Constantine, A.D. 326, to be illegal. [Commissoria Lex]. In case of a sale the creditor, according to the later law, must give the debtor notice of his intention to sell, and after such notice he must wait two years before he could legally make a sale. If any thing remained over after satisfying the creditor, it was his duty to give it to the debtor; and if the price was insufficient to satisfy the creditor's demand, his debtor was still his debtor for the remainder. If no purchaser at a reasonable price could be found, the creditor might become the purchaser, but still the debtor had a right to redeem the thing within two years on condition of fully satisfying the creditor (Cod.8 tit. 34 s3).

If there were several creditors to whom a thing was pledged which was insufficient to satisfy them all, he whose pledge was prior in time had a preference over the rest (potior est in pignore qui prius credidit pecuniam et accepit hypothecam, Dig. 20 tit. 4 s11). There were some exceptions to this rule; for instance, when a subsequent pledgee had lent his money to save the pledged thing from destruction, he had a preference over a prior pledgee (Dig. 20 tit. 4 s5, 6). This rule has been adopted in the English Law as to money lent on ships and secured by bottomry bonds.

Certain hypothecae, but tacitae and founded on contract, had a preference or priority (privilegium) over all other claims. The Fiscus had a preference in respect of its claims; the wife in respect of her dos; the lender of money for the repair or restoration of a building; a pupillus with whose money a thing had been bought. Of these hypothecae which were founded on contract, the following were privileged: the hypothecae of those who had lent money for the purchase of an immovable thing, or of a shop, or for the building, maintaining, or improving of a house, &c., and had contracted for an hypotheca on the thing; there was also the hypotheca which the seller of an immovable thing reserved by contract until he was paid the purchase-money. Of these claimants, the Fiscus came first; then the wife in respect of her dos; and then the other privileged creditors, according to their priority in point of time.

In the case of unprivileged creditors, the general rule as already observed was, that priority in time gave priority of right. But an hypotheca which could be proved by a writing executed in a certain public form (instrumentum publice confectum), or which was proved by the signatures of three reputable persons (instrumentum quasi publice confectum), had a priority over all those which could not be so proved. If several hypothecae of the same kind were of the same date, he who was in possession of the thing had priority.

The creditor who had for any reason the priority over the rest, was intitled to be satisfied to the full amount of his claim out of the proceeds of the thing pledged. A subsequent creditor could obtain the rights of a prior creditor in several ways. If he furnished the debtor with money to pay off the debt, on the condition of standing in his place, and the money was actually paid to the prior creditor, the subsequent creditor stepped into the place of the prior creditor (Dig. 20 tit. 3 s3). Also, if he purchased the thing on the condition that the purchase-money should go to satisfy a prior creditor, he thereby stepped into his place. A subsequent creditor could also, without the consent either of a prior creditor or of the debtor, pay off a prior creditor, and stand in his place to the amount of the sum so paid. This arrangement, however, did not affect the rights of an intermediate pledgee (Dig. 20 tit. 4 s16).

The creditor had an actio hypothecaria or pignoraticia in respect of the pledge against every person who was in possession of it and had not a better right than himself. This right of action existed indifferently in the case of Pignus and Hypotheca. The hypothecaria actio was designed to give effect to the right of the pledgee, and consequently for the delivery of the hypothecated thing or the payment of the debt. A creditor who had a Pignus, had also a right to the Interdictum retinendae et recuperandae possessionis, if he was disturbed in his possession.

The pledgee was bound to restore a pignus on payment of the debt for which it had been given; and up to that time he was bound to take proper care of it. On payment of the debt, he might be sued in an actio pignoraticia by the pledger, for the restoration of the thing, and for any damage that it had sustained through his neglect. The remedy of the pledgee against the pledger for his proper costs and charges in respect of the pledge, and for any dolus or culpa on the part of the pledger relating thereto, was by an actio pignoraticia contraria.

The pledge was extinguished if the thing perished, for the loss was the owner's; it was also extinguished if the thing was changed so as no longer to be the same, as if a man should have all the timber in a merchant's yard as a security, and  p918 the timber should be used in building a ship (Dig. 13 tit. 7 s18 § 3); if there was confusio, as when the pledgee became the owner of the thing that was pledged. It was also extinguished by the payment of the debt; and in some other ways.

The law of pledge at Rome was principally founded on the Edict. Originally the only mode of giving security was by a transfer of the Quiritarian owner­ship of the thing by a Mancipatio or In jure cessio, if it was a Res Mancipi, on the condition of its being re-conveyed, when the debt was paid (sub lege remancipationis or sub fiducia). [Fiducia.] Afterwards a thing was given to the creditor with the condition that he might sell it in case his demand was not satisfied: there was no transfer of the owner­ship. But so long as the creditor could not protect his possession by legal means, this was a very insufficient security. Ultimately the Praetor gave a creditor a right of action (actio in rem) under the name Serviana actio for the recovery of the property of a colonus which was his security for his rent (pro mercedibus fundi); and this right of action was extended under the name of quasi Serviana or hypothecaria generally to creditors who had things pignerated or hypothecated to them (Inst. 4 tit. 6 s7). As to the Interdictum Salvianum, see Interdictum.

The progress of pledge in the Roman system was from the clumsy contrivance of a conveyance and reconveyance of the owner­ship, to the delivery (traditio) of anything without a conveyance and upon an agreement that it should be a security (pignus), and finally to the simple Pactum hypothecae, in which case there was no delivery, and all that the creditor got, was a right to have some particular thing of the debtor subject to be sold to pay his debt. The hypotheca was the last stage in the development of the Roman law of Pledge. It gave facilities for pledging beyond what existed when the Pignus was only in use, because things could be hypothecated without a transfer of owner­ship or a giving of possession, such as mere rights of action, debts, and the like. In act, Pawn or Pledge under the form of Hypotheca was perfected by the Romans, and there is nothing to add to it.

The Roman Law of Pledge has many points of resemblance to the English Law, but more is comprehended under the Roman Law of Pledge than the English Law of Pledge, including in that term Mortage. Many of the things comprehended in the Roman Law of Pledge belong to the English Law of Lien and to other divisions of English Law which are not included under Pledge or Mortgage.

(Dig. 20 tit. 1, 2, 3, &c.; Cod. 8 tit. 14‑35; Gaius, II.59‑61; Dig. 13 tit. 7, and Cod.4 24 De Pignoraticia Actione vel contra; Puchta, Inst. I. § 246, &c.; there is an English treatise intitled "The Law of Pledges or Pawns as it was in use among the Romans, &c., by John Ayliffe, London, 1732," which appears to contain all that can be said, but the author's method of treating the subject is not perspicuous.)

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