ficiem secutam videri, i.e. cum iure pignoris : BOOK III. Pt. I. Ch. 1. (2) By confusio,'a i.e., coalescence in the same Merger. person of the pledge-right and the ownership; but under certain circumstances the owner can make the pledge available by way of action and exceptio, where the pledge-right gives him better security as regards the thing than the proprietary right; as for instance, in relation to other pawnees; in which case also a pledge-right is possible without a claim. cf. § 102. Iul. Si rem alienam bona fide emeris et mihi pignori dederis, . . . deinde me dominus heredem instituerit, desinit pignus esse.-D. 13, 7, 29.2 с Imp. Alex.: Si potiores creditores pecunia tua dimissi sunt, quibus obligata fuit possessio, quam emisse te dicis, ita ut pretium perveniret ad Sc. a debitore. eosdem priores creditores, in ius eorum successisti et contra eos, qui infirmiores illis fuerunt, iusta defensione te tueri potes.-C. 8, 18 (19), 3.3 1 A house given as security was burnt down, and L. T. bought the site, and built thereon: a question arose conconcerning the pledge-right. Paul. gave as his opinion that the pledge could still be followed, and that therefore what was built upon the ground was considered to pass with it, that is, with the pledge-right; that possessors in good faith can, however, be obliged to restore the building to creditors only upon condition that they recover their outlay upon the structure, to the extent of the increase effected in the value. 2 If in good faith you have purchased a thing belonging to another, and have pledged it to me, . . . and afterwards the owner institutes me as heir, the pledge ceases to exist. ... 3 If the previous creditors have been paid with your money, to whom a possession was pledged which you allege you have purchased, so that the purchase-money came to the hands of the same earlier creditors, you have succeeded to their place, and can protect yourself with a legal defence against such as were in a weaker position than they. BOOK III. Pt. I. Ch. I. a Cf. D. 46, 3, 49. (3) By the complete cancelling of the mortgagedebt, whether by payment (solutio), or by other satisfaction of the creditor (satisfactio)." Ulp. Item liberatur pignus, sive solutum est debitum sive eo nomine satisfactum est.—1. 6 pr., D. h. t.1 Id. Omnis pecunia exsoluta esse debet aut eo nomine satisfactum esse, ut nascatur pigneraticia actio. Satisfactum autem accipimus, quemadmodum voluit creditor, licet non sit solutum, . . . sive reo dato, sive pretio aliquo vel nuda conventione.-1. 9, § 3, D. de pign. act.2 Id. Qui pignori plures res accepit, non cogitur unam liberare, nisi accepto universo, quantum debetur.-1. 19, D. de pign." (4) By contract of release (remissio pignoris), which may even be tacit. Id.: Si in venditione pignoris consenserit creditor, vel ut debitor hanc rem permutet vel donet vel in dotem det, dicendum erit pignus liberari, nisi salva causa pignoris sui consensit vel venditioni vel ceteris.-1. 4, § 1, D. h. t. Et generaliter dicendum est, quotiens recedere 1 Moreover the pledge is extinguished if the debt have been paid, or security given in that behalf. The whole claim must have been cleared off, or security given in that behalf, for the action of Pledge to arise. Now by security given we understand, in the way desired by the creditor, although payment may not have been made. . . whether by surety found, or by some purchase-money, or by bare agreement. 3 He that has taken several things in pledge cannot be made to release a single one, save as he has received the whole of his debt. If the creditor has agreed to the sale of the pledge, or that the debtor should change the property so pledged, present it, or give it as a dowry, the pledge must be said to be discharged, unless he has consented either to the sale thereof, or the like, without prejudice to his pledge-right. voluit creditor a pignore, videri ei satisfactum. cit. 1. 9, § 3.' BOOK III. Pt. I. Ch. I. (5) By sale on the part of the pawnee entitled." a § 102, ad init. (6) By Limitation. (a) If the owner or usucapion possessor of the thing pledged has had the continued possession of such thing ten years 'inter praesentes,' twenty years 'inter absentes,' without knowing of the ius pignoris, this is extinguished (usucapio libertatis). Pap. Persecutio pignoris usucapione rei Imp. Gord. Diuturnum silentium longi temporis praescriptione corroboratum creditoribus pignus persequentibus inefficacem actionem constituit, praeterquam si debitores vel qui in iura eorum successerunt, oblagatae rei possessioni incumbant.-C. 7, 36, 1.3 (3) The actio hypothecaria falls under prescription against the debtor and subsequent pledgecreditors in forty, against other possessors of the pledge in thirty, years; on the other hand, prescription of the claim under the pledge leaves the pledgeright intact. Id. Intelligere debes vincula pignoris durare personali actione summota.-C. 8, 30 (31), 2.* 1 And in general it must be stated that, whenever the creditor has cared to relax his hold upon the pledge, satisfaction would seem to have been rendered to him. 2 The following of the pledge is not destroyed by usucapion of the property. Long-standing silence, supported by regular limitation, renders nugatory the action for creditors taking proceedings for their pledge, unless the debtors, or those who have entered into their rights, command possession of the security. Be it known that, although the personal action is extinguished, the obligations of the pledge still subsist. BOOK III. Pt. I. Ch. II. " Best, but imperfectly, ex pressed in the language of Engl. Law by 'promisor' and ' promisee :' cf. Holl. p. 196 Forbearance. • Inst. iii. 13 pr.—Cf. ‘Anct. Law,' pp. 323-4. 4 Cf. § 105, and Holl. p. 181. Cf. Macleod, Theory and Practice of CHAPTER II. LAW OF Obligations. TIT. I.-NATURE OF OBLIGATIONS. $104. ESSENCE OF OBLIGATIO. OBLIGATIO is that legal relation between two persons by virtue of which the one, called 'debitor s. reus debendi,' is bound to the other, or creditor s. reus credendi,' for a definite PERFORMANCE of something bearing a pecuniary value, whereby the 'creditor' has, accordingly, a right to an act (facere, or non-facere) by the 'debitor,' has a CLAIM (actio, also called obligatio) to it.c Paul. Obligationum substantia non in eo consistit, ut aliquod corpus nostrum aut servitutem nostram faciat, sed ut alium nobis obstringat ad dandum aliquid vel faciendum vel praestandum.d 1. 3 pr. D. de O. et A. 44, 7. Gai. Creditorum appellatione non hi tantum accipiuntur, qui pecuniam crediderunt, sed omnes, quibus ex qualibet causa debetur:-ut si cui ex empto vel ex locato vel ex alio ullo contractu debetur; sed et si ex delicto debeatur, mihi videtur posse creditoris loco accipi.-D. 50, 16, 1. II (Gai.), and 1. 12 (Ulp.)* Mod. Debitor intelligitur is, a quo invito exigi pecunia potest.-1. 108 eod.3 1 The essence of an obligation does not consist in its making any material object our property, or a servitude ours, but in its binding another person to grant something, or to do or make good something in our favour. 2 Under the designation 'creditors' are understood not only Banking, p. 81. those who have lent money, but all to whom a debt is owing from whatever cause :-for example, if a debt be owing to any man from a purchase, or from a hiring, or upon the ground of any other contract; but even if it be owing upon a delict, it appears to me he can be regarded as a creditor. 3 By 'debtor' is understood a person from whom money-can be exacted against his will. Octavenus . . . ea in obligatione consistere, quae pecunia lui praestarique possunt.-D. 40, 7, 9, 2.1 As regards the declaration of will contained in the acceptance of an obligatio, and besides, the object of performance, reference must be made to the universal principles of law which avail for legal transactions in general." Every obligatio is annexed to two definite subjects, from which it cannot be severed, since the object of the obligatio is an act that springs from individual determination. OBJECT OF OBLIGATIONS. $105. GENERAL VIEW. с BOOK III. I't. I. Ch. 11. S$ 18, IC. § 144 Cf. Sav. 'Sysand note on tem,' v. p. 516, d Ibid. p. 589. The performance constituting the object of obligation can either lie in dare,' i.e., transfer of property, or origination of a servitude; or in 'facere,' that is, in other action or forbearance (obligationes dandifaciendi). The 'praestare'd which is mentioned be- P. 589. sides in the sources-of questionable meaning, per- Ibid. iv. 101, haps merely pleonastic-falls under the category of note; v. 599. 'facere,' and comprehends responsibility for those modifications which the original content of the obligation experiences from acts of the debtor or outward influences; for instance, the obligation to pay damages, and in general, any obligation for satisfaction, even in respect of 'obligationes ex delicto.' Paul. Stipulationum quaedam in dando, quaedam in faciendo consistunt.-1. 2 pr., de V. O. 45, 1.2 Non solum res in stipulatum deduci possunt, 1 Octav. (used to say) . . . that the object of an obligatiou is that which can be redeemed and replaced by money. Some stipulations consist of giving, some of doing. |