BOOK III. Pt. 1. Ch. I. fruendo? See Anct. Superficiario-i.c. qui in alieno solo superficiem ita habet, ut certam pensionem praestetpraetor causa cognita in rem actionem pollicetur. —D. 6, 1, 73, 1.-1. 75 (Paul., Ulp.).1 Is autem, in cuius solo superficies est, utique non indiget utili actione, sed habet in rem, qualem habet de solo; plane si adversus superficiarium velit vindicare, dicendum est exceptione utendum in factum data.-1. 1, § 4, h. t. A Lease is in itself only an obligatory relation, but the lessees of public lands (agri vectigales) had by Praetorian Law a 'real' right of use, which was transmissible, in the lands let to them, which upon due discharge of the ground-rent (vectigal) was protected a Interdictum de by interdicts," and by an in rem actio against third loco publico persons as well as the lessor. The right of the agri vectigalis was next, in the later imperial Law, blended with the right of Emphyteusis, which from the third Law,' pp. 299, century came up and was customary in the eastern part of the Empire, and was an hereditary or long lease of uncultivated imperial and fiscal lands, intended to promote their cultivation. The name Emphyteusis was transferred to all grants of civic, municipal, ecclesiastical and private lands; and the contract of hereditary lease was declared by an ordinance of Zeno to be a peculiar contract, alike different from Lease neither by violence, nor covertly, nor upon sufferance the one from the other, to hinder such enjoyment, I forbid violence; if any other action shall be asked for concerning a tenement, I will grant it after inquiry into the matter.' 1 To the superficiary, i.e., the person who possesses a tenement upon ground belonging to another in such way as to pay a fixed sum for it, the Praetor promises a real action upon investigation of the matter. 2 Now the person upon whose ground the tenement is does not at all need an analogous action, but he has the same real action as in respect of the ground. Certainly if he desire to bring the proprietary action against the lessee, we must state that the latter will have to employ a plea granted in factum. and Purchase, which point earlier on had been subject Book III. of dispute. The Emphyteuta has juristic possession of the land and can dispose of it as owner, only that he may not deteriorate it, has to pay the taxes charged upon it, and is in particular obliged to pay the owner an hereditary rent (canon, pensio), in default of payment of which for three years, the owner can dispossess the Emphyteuta (right of ejectment). If the Emphyteuta alienates his right, the owner has a right of preemption. Agri civitatum vectigales vocantur, qui in Gai. iii. § 145: —in quibusdam causis quaeri (solet), utrum emptio et venditio contrahatur, an locatio et conductio: veluti si qua res in perpetuum locata sit, quod evenit in praediis. municipum, quae ea lege locantur, ut quamdiu id vectigal praestetur, neque ipsi conductori neque heredi eius praedium auferatur; sed magis placuit locationem conductionemque esse.* 1 The lands of civic communities are called stipendiary which are leased in perpetuity, i.e., upon the condition that as long as a tax is paid for them, so long neither they themselves who have taken such lease nor their successors shall be deprived of them.-§ They that have taken a lease of the perpetual enjoyment of estates from a corporation, although not becoming owners, it is held possess the real action against the corporation itself, yet only if they discharge the rent. In some cases it is a matter of doubt whether a contract of buying and selling or of letting and hiring is made. For example, if any property has been leased in perpetuity, as happens Pt. I. Ch. I. Iust. iii. 24, § 3-lex Zenoniana lata est, quae emphyteuseos contractui propriam statuit naturam neque ad locationem neque ad venditionem inclinantem, sed suis pactionibus fulciendam.1 LAW OF PLEDGE." § 100. NATURE AND HISTORY OF THE PLEDGE-right. The ius pignoris is that right in a thing owned by another which belongs to a creditor, providing security for his claim, by virtue of which he can upon nonperformance sell such thing, and can reimburse himself out of the purchase-money. It is essentially distinguished from the other iura in re aliena by the fact that (1) it assures to the person entitled a merely transitory, partial control over the thing without right of user-or the privilege of transferring the ownership by sale of the thing-with the full exercise of which it is itself extinguished; that (2) by the latter step it destroys the proprietary right itself; and that (3) it is an accessory right, i.e., one existing on account of the claim.b The institution of real security of claims by an object of ownership (pledge-right, pignus in the wider sense) mortgaged to the creditor as an eventual means of satisfaction, was by the Roman Law developed in three different stages and forms: interim ownership, juristic possession, ius in re. The oldest form of security is the FIDVCIA, i.e., the in the case of estates of corporations which are leased upon the condition that as long as such rent is paid, the estate shall not be taken away from he lessee himself nor his heir. But the prevailing view is that this is a letting and hiring. 1-the l. Zenoniana was passed, which settled that the contract of emphyteusis had a special character, and did not approximate either to Hiring or to Sale, but should rest on its own agreements. BOOK III. Pt. 1. Ch. 1. a Comp. the liams, Real 'Personal Pro transfer to the creditor of the ownership" of the thing as giving him security, by mancipatio (or in iure cessio), subject to a proviso for remancipatio upon due payment English mortof the debt; whereby the debtor by agreement with gage: see Wilthe creditor (precarium, hire) could retain possession Property,' of the thing. Upon fulfilment of the 'pactum fidu- pt. iv. ch. ii. ; ciae,' the debtor had the 'actio fiduciae,' which en- perty,' p. 62. tailed infamia. In respect of this the 'lex commissoria' was also in use, i.e., the agreement that upon non-payment of the debt the thing, which until then had still formed part of the property of the debtor, should definitely remain in the hands of the creditor as his own. We have already adverted to the 'usureceptio fiduciae.' Gai. ii. §§ 59-60: Adhuc etiam ex aliis causis sciens quisque rem alienam usucapit; nam qui rem alicui fiduciae causa mancipio dederit vel in iure cesserit, si eandem ipse possederit, potest usucapere, anno scilicet etiam soli si sit: quae species usucapionis dicitur usureceptio, quia id quod aliquando habuimus recipimus per usucapionem. § Sed cum fiducia contrahatur aut cum creditore pignoris iure, aut cum amico quo tutius nostrae res apud eum sint, si quidem cum amico contracta sit fiducia, sane omni modo competit usureceptio; si vero cum creditore, soluta quidem pecunia omnimodo competit, nondum vero soluta ita demum competit, si neque conduxerit eam rem a creditore debitor, neque precario rogaverit, ut eam rem possidere liceret: quo casu lucrativa usucapio competit.' 1 A man by usus consciously acquires the property of another by yet other grounds; for he who has transferred a thing to another by mancipation or by surrender in court for a fiduciary purpose, if he himself get possession of the same, can acquire it by usus, and that in one year even if it belong to the soil. This kind of usucapion is called 'retaking by use,' because we take back by usucapion that which we once possessed. § But since a fiduciary contract is made either with a creditor in respect of b § 80. BOOK III. Pt. I. Ch. I. Paul. ii. 13, §§ 2-3: Quidquid creditor per fiduciarium servum quaesivit, sortem debiti minuit. Debitor creditori vendere fiduciam non potest; sed aliis si velit vendere potest, ita ut ex pretio eiusdem pecuniam offerat creditori, atque ita remancipatam sibi rem emptori praestet.—§ 5 : Si inter creditorem et debitorem convenerit ut fiduciam sibi vendere non liceat, non solvente debitore creditor denuntiare ei sollemniter potest et distrahere: nec enim ex tali conventione fiduciae actio nasci potest.' The second form of security is the PIGNVS (pawn), which arises by transfer of the possession of the thing to the creditor under a condition for its re-transfer upon satisfaction of the debt (rem pignori obligare), by which also the creditor originally obtained a merely de facto security. The original of this pledge-right is to be found in the old pignoris capio' (magisterial or Cf. § 192, and private pledge)," sup. § 31. The right of sale in case of default in performance used in ancient time to be granted to the creditor only as derived from special agreement (so that otherwise a pledge, or with a friend in order that our property in his hands should be the better secured; if the fiduciary contract be made with a friend, usureceptio is indeed allowable in any case; but if with a creditor, then, upon payment of the money, it is always allowable; but if the money has not been paid, it only attaches if the debtor has neither hired such property from the creditor, nor asked for possession thereof from him upon sufferance in such cases lucrative usucapion is allowable. 1 Whatever the creditor has acquired through a fiduciary bondman reduces the state of the debt. The debtor cannot sell the pawn to the creditor; but if he so desire, he can sell it to others, in such way as from the purchase-money to tender the amount to the creditor, and so as to have the property reconveyed to himself for conveyance to the purchaser.—If there have been an agreement between the creditor and debtor, that the creditor is to have no power to sell the pawn, then, upon the debtor's default, the creditor can give him formal notice and foreclose; for an action of fiducia cannot arise from such an agreement. |