PLEDGE (Roman). This word formerly denoted a person who was a security for another ; but it now denotes a thing which is a security, and generally for a debt.
The chief rules of English law as to mortgaging and pledging are derived from the Roman law, in which however there is no distinction among pledges, dependent on the nature of the thing pledged, whether it was a thing moveable or immoveable, corporeal or incorporeal; and a thing could not be the subject of pledge unless it could be the subject of buying and selling, for the power of selling a pledge was an im portant part of the creditor's security. A man might pledge a thing either for his own or another person's debt. The terms used in the Roman law to express pledging, and also the thing pledged, are Pignus and Hypotheca. It is properly hypotheca, where there is a bare agree ment (nuda eonventio) that a thing shall be a security to a creditor for a debt, and the thing remains in the possession of the debtor. The word hypotheca (livaite-o) is Greek, and denotes a thing subjected to a claim or demand. When the thing was delivered to the creditor, it was called Pignus (laid., Orig.,' v., c. 25) ; and as moveable things would for obvious reasons be most frequently delivered, a notion got established among some Roman lawyers, aided by an absurd etymology (pignus appellatum h pugno, Dig.; 50, tit. 16, s. 238), that the term pignus was applicable only to a pledge of moveable things ; and this notion has also prevailed in modern times. The true etymology of pignus seems to be the same as that of pactum. It is generally said that hypotheca corresponds to the English mortgage, and pignus to pawn or pledge; but this is not the case. No ownership was trans ferred by the Roman hypotheca. The term hypothecation in English law is still used to express the mortgage of a ship or its cargo.
After the time agreed on for payment was passed, the creditor had the right of selling the pledge and of retaining his debt out of the produce of the sale. If the produce of the sale was not sufficient to discharge the debt, be had a personal action against the debtor for the remainder. Originally perhaps he could only have this right of sale by express contract, but subsequently the right to sell (jus distrabendi sive vendendi) was an essential part of the contract of pledge. Though the creditor was not the owner of the thing (dominus), still he could transfer ownership to the purchaser, a doctrine that is only intelligible on the supposition that he sold it as the attorney or agent of the debtor. But the creditor could only sell the thing in respect of the
debt for which the thing was pledged, and not in respect of other debts due to him from the debtor, though he might apparently retain the surplus of the sale in his hands as a satisfaction for such other debts. The power of sale was to be exercised pursuant to the terms of the contract; and when there was no agreement as to the form and manner of sale, the law prescribed the mode of proceeding, which the creditor was bound to observe strictly. It was once usual to insert in the contract of pledge a Lex Commissoria, that is, a condition by virtue of which the thing pledged became the absolute property of the creditor, if the money was not paid at the time agreed on. But by a constitution of Constantine (' Cod.', viii., tit. 35) it was forbidden to insert such a clause in the contract. If anything remained over after satisfying the creditor, it belonged to the debtor.
As the pledger remained the owner of the thing pledged, he could of course sell it, but the purchaser took it subject to the pledge. The creditor who was in possession of a pledge was answerable for any damage that betel it owing to dolus or culpa, that is, fraud or neglect, but he was not answerable for unavoidable loss.
A pledge was determined in various ways ; by the destruction of the thing, by the creditor releasing the debtor, by the debtor paying the debt, and in other ways. When the debtor offered the money to his creditor, he was entitled to have the pledge restored to him. This might be obtained by an actio pignoraticia, which was an actio in personam, and also lay for damages done to or sustained by the thing, or for the surplus of the money if the pledge had been sold by the creditor. The creditor had a contraria pignoraticia actio against the debtor for expenses incurred as to the pledge, for any fraud in the matter of the pledge, as passing off base for better metal, and in some other cases.
The Roman law of pledges has been treated by various writers at length. A compendious view of it is contained in Brinkman'., ' Institutionee Julia Romani,' Sleavici, 1522; in Mares°IL • Lehrbuch der Inatit. des Rom. Roelites; Leipzig, 1830; anti in Ayliffe's ' law of l'ketrees or Pawns,' London, 1732.