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Summary Roman Law 271 Notes
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Extensive notes and summaries on the examinable material in Roman Law 271
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4.5 PIGNUS (“PLEDGE”) SELF-STUDY 2018REFER BACK TO REAL SECURITY UNDER THE LAW OF THINGS. QUESTIONS IN TESTS AND EXAMS USUALLY FOCUS ON
PIGNUS AS FORM OF REAL SECURITY.
PLEDGOR PLEDGEE
Pignus or pledge was a real contract in terms whereof the pledgee had to return the
thing handed over to him as security for the repayment of a debt to the pledgor in
certain circumstances. (Remember the contract of pledge was only concluded once
the res was handed to the pledgee)
The need here was for security. We already saw that personal security was effected
through suretyship – fideiussio. Real security was established through pignus/pledge.
- Elements:
The elements of pignus were
1. Consensus
2. Datio – the handing over of a thing
* The type of res could be movable or immovable (any corporeal thing) – NB!
The Romans did not know mortgage.
* The type of possession was legally protected possession or possessio – thus
the pledgee did not become the owner but did have possessory interdicts at
his disposal – i.e. was able to protect his possession.
3. The third element was the purpose of the transaction
* The purpose was to serve as security for an existing debt.
* The res (thing given in pledge) had to be returned when the debt was
satisfied.
- Origin
This brings us to the origin of pignus. Pignus developed out of the praetorian law
and was later recognized by the ius civile.
- Nature of the legal relationships
What was the nature of the legal relationships?
, 1. Firstly, pignus was imperfectly bilateral/reciprocal.
2. Secondly, pignus was also bona fidei (fairness / good faith had to be taken into
account).
3. Thirdly, pignus established a limited real right.
- Duties of the pledgee
What were the duties of the pledgee (the party receiving something as security for
the repayment of a debt)?
1. Firstly, the duty of care:
It is possible that initially the duty of care was custodia. However, in classical
law the position was clearer – the duty of care (sometimes called the standard
of liability) was culpa (levis in abstracto) – the transaction was to the benefit of
both parties; the debtor (pledgor) receives a loan and the creditor (pledgee)
receives security.
2. The second duty of the pledgee was not to use the thing given as security. If the
pledgee did use the res, the use amounted to furtum usus – which lead to the
pledgee being held liable for all damages even that caused by vis maior.
3. Thirdly, the pledgee had a duty to return the res and fruits to the pledgor when
payment was made or when the debt was satisfied in some other manner.
What happen if the debtor defaulted on the loan? In this case the pledgee had
the right to sell the res (the pledged property); the pledgee had to give the
superfluum (that which is left once the debt is settled – see law of things) back
to the pledgor.
The remedy of the pledgor to enforce the pledgee’s duties was the actio pigneraticia
(directa).
- Duties of the pledgor (person handing over the res to serve as security for
repayment of a debt)
1. Firstly, the pledgor had a duty to reimburse the pledgee for necessary expenses
incurred in the maintenance of the pledged object.
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