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thing by bare agreement (nuda conventio) is properly Hypotheca. (Inst. 4. tit. (5. § 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 pro- ‘ ceeds. 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 hypoikecae dan potest) for any obligation, whether money borrowed (mutua pecunia), dos, in a case of buying and selling, letting and hiring, or mandattim ; whether the obligatio is conditional or unconditional ; for part of a sum of money, as well as for the whole. (Dig. 20. tit. 1. s. 5.) Any thing could be the object of pledge which could be an object of sale (Dig. 20. tit. 1. s. 9 ; 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 (ialernct) 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. s. 34.) 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. s. 18.)
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. s. 26) ; for the Romans applied the notion of pigrius to an annual payment left by way of legacy, and charged or secured on land. (Dig. 34. tit. L s. 12.) 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 liis, and afterwards became the owner of it, the pledge was valid. (Dig. 13. tit. 7. s. 20; 20. tit. 2. s. 5.)
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. s. 8, 25.) For
instance a creditor would be entitled to his necessary, expenses concerning a slave or an estate which had been pignerated.
Pignus might be created by a judicial sentence, as for instance by the decree of the praetor giving to a creditor power to take possession of his debtor’s property (missio creditoris in bona debitor is), either a single thing, or all his property, as the case might be. But the permission or command of the magistrates did not effect a pledge, unless the person actually took possession of the thing. The following are instances : — the immissio darani infecti causa [damnum infectum]: legatoruin servan-dorum causa, which had for its object the securing of a legacy which had been left sub conditione or die (Dig. 36. tit. 4) : missio ventris in posses-sionem, 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 Immissio 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 jadicati).
There was also among the Romans a tacita hypotheca, which existed not by consent of the parties, but by rule of law (ipsojure)^ as a consequence of certain acts or agreements, which were not acts or agreements pertaining to pledging. (Dig. 20. tit. 2. In qmbus causis pignus vel hypo-* t/teca tacite conlrahittir.) 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 fidei-commissa, on that portion of the hereditas of him who had to pay the legacies or h’dciconnnissa. 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 el illatct). The lessor of a Praedium rusticum had an hypotheca on the fruits of the farm as soon as they were collected by the lessee (colouus). (Dig. 20. tit. 2. s. 7; 19. tit. 2. s. 24.) 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 monev.
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The person who- had given a pledge, was still the owner of the thing that was pledged. lie 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
