!!Экзамен зачет 2023 год / The Law of Obligations

we are solely concerned with the obligatory side of pignus; for one of the requirements for pledging a thing was that pledgor and pledgee were in agreement about the creation of the pledge. A (formless) contract had to be concluded,242 and where in actual fact possession of the pledged property was transferred to the creditor/pledgee, we have the real contract of pignus. This was invariably the case in early law. In classical law, however, it came to be recognized that a right of pledge could be created even though the pledged property remained with the pledgor.243 It is clear that in these instances of (purely contractual) pledges without possession the real right pignus was no longer based on the real contract of pignus.

2.The actio pigneraticia

(a)The formula in factum concepta

Turning our attention back, therefore, to the pledge with possession, we must first of all consider the pledgor's position once the obligation which the pledge was designed to secure had fallen away. Of course, the pledgor had always been able to avail himself of the rei vindicatio.244 This remedy could be used to claim the object back from any third party, not only from the pledgee. But it involved proof of ownership ex iure Quiritium—often a difficult stumbling block for the pledgor/owner. For the actio Publiciana, on the other hand, his "in bonis esse" was required.245 Where these actions were unavailable, the plaintiff was probably able to resort to the condictio.246 It was from this root that a more specialized contractual remedy came to be developed by the praetors, namely the actio pigneraticia. In the edict it was proposed under the title "De rebus creditis" and in close connection with condictio and actio commodati.247 Like the actio commodati, it initially only had a formula in factum concepta, and has been reconstructed by Lenel as follows:

"Si paret Am Am № № rem qua de agitur ob pecuniam debitam pignori dedisse eamqua pecuniam solutam esse eove nomine satisfactum esse aut per Nm Nm

"Reconstructing the Roman Law of Real Security", (1961—62) 36 Tulane LR 29 sqq.; Paolo

Frezza, Legaranzie detle obligazioni, vol. II: Legaranzie reali (1963); Kaser, RPr I, p. 463 sqq.; idem, "Studien zum romischen Pfandrecht", (1976) 44 TR 233 sqq.

242On the conventio pignoris Max Kaser, "Besitzpfand und 'besitzloses' Pfand" (1979) 45 SDHI 29 sqq.

243For details, sec Kaser, (1979) 45 SDHI 1 sqq.

244Cf. Kaser, (1976) 44 TR 262 sq.

245For details, see, most recently, Max Kaser, "Nochmals zu 'in bonis habere'", in: Huldigingsbundel Paul van Warmelo (1984), pp. 144 sqq.; Hans Ankum, Marjolijn van GesseUde Roo, Eric Pool, "Die verschiedenen Bedeutungen des Ausdrucks in bonis alicuius esse/in bonis habere im klassischen romischen Recht", (1987) 104 ZSS 238 sqq. and (1988) 105 ZSS 334 sqq.

246Max Kaser, "Studien zum romischen Pfandrecht II", (1979) 47 TR 229, 234.

247Lenel, EP, pp. 231 sqq., 254 sqq.

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stctisse, quo minus solveretur, eamque rem A° A° redditam non esse, quanti ea res erit, tantam pecuniam iudex Nm Nm A° A° codemnato, si non paret, absolvito."248

Three comments might be apposite. "Pignori dedisse", in this form of action, still reflects the idea that the pledge had to be handed over. Nevertheless, the actio pigneraticia was also available in cases of nonpossessory pledges, where the creditor had subsequently managed to get hold of the object.249 Furthermore, it is not stated in the intentio of the formula that the pledged object had to have belonged to the pledgor. The actio pigneraticia was therefore applicable even where the pledgor had encumbered someone else's property250—that is, in a situation where the real right of pledge did not come into existence.251 Finally, still according to the intentio, the action could be brought not only where the underlying debt had been discharged or where the creditor had defaulted, but also where the latter had been (otherwise) "satisfied on that account". When or whether such "satisfaction" had taken place was decided solely from the creditor's own point of view. It did not matter whether he had in actual fact received what was owed to him, or at least an equivalent in value, as long as he regarded himself as satisfied:

"satisfactum autem accipimus, quemadmodum voluit creditor, licet non sit solutum: sive aliis pignoribus sibi caveri voluit, ut ab hoc recedat, sive fideiussoribus sive reo dato sive pretio aliquo vel nuda conventione, nasdtur pigneraticia actio, et generaliter dicendum crit, quotiens recedere voluit creditor a pignore, videri ei satisfactum, si ut ipse voluit sibi cavit, licet in hoc deceptus sit."252

With this wide and subjectivized interpretation of the term "satisfactum" the Roman lawyers tried to cover all situations in which a need for retention of the security could no longer be taken to exist.

(b) The formula in ius concepta

The formula in factum concepta dates back to the times of the early Republic. As in the case of commodatum, the classical lawyers developed a more flexible alternative in the form of a formula in ius concepta with an "ex bona fide" clause as its essential characteristic. It started off with a demonstratio defining the facts of the case: "Quod A° A° № № mensam argenteam qua de agitur ob pecuniam debitam pignori dedit" and carried on in the normal way: ". . . quidquid ob earn rem Nm Nm A° A° dare facere oportet ex fide bona, eius iudex Nm Nm

248EP, p. 255.

249Kaser, (1979) 45 SDHI 5 sq.

5 Ulp. D. 13, 7, 9, 4: "Is quoque, qui rem alienam pignori dedit, soluta pecunia potest pigneraticia experiri." Cf. further e.g. Ulp. D. 21, 2, 38; Paul. D. 13, 7, 16, 1; Marci. D. 13, 7, 32; C. 8, 15, 6 (Diocl.).

TR 201 sqq.

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A° A° condemnato, si non paret, absolvito."158 Besides allowing the judge to take into consideration whether the pledgee/creditor had complied with the requirements of good faith,159 this formula was much better suited to deal with a specific problem arising after realization of the pledge. If the creditor did not obtain satisfaction and he thereupon sold the pledged property, the proceeds of this sale might easily exceed the sum of the debt owed to him. It would seem reasonable, under these circumstances, to allow the pledgor to claim superfluum,160 but it is difficult to see how that could have been achieved under the formula in factum concepta. "Quanti ea res erit" refers to the pledged property, for the monetary value of which the judge could (or could not) condemn the defendant. The intentio incerta of the formula in ius concepta left the judge much more freedom; he could condemn in "whatever the defendant ought on that account to give to (or to do for) the plaintiff": be it the pledged property or its value, be it a superrluum after sale.

3. The consequences of non-redemption of the pledge

But was the creditor actually allowed to sell the pledge? In early Roman law the pledged property seems to have been forfeited if it was not redeemed in time (by way of payment of the underlying debt, for example).161 In those days one did not yet distinguish between various types of real rights, and the position of the pledgee was conceived in terms of (part) ownership of the property.162 Forfeiture merely meant that the pledgee became fully and solely entitled to the thing. Of course, under these circumstances he was perfectly free to sell it. Once, however, the pledgee's position had begun to be conceptualized as ius in re aliena, the situation was no longer that straightforward. Ownership vested in the pledgor and it did, of course, not pass to the pledgee simply by virtue of the fact that the underlying debt had not been discharged, or that the pledgee/creditor had not otherwise been satisfied. Thus, the somewhat strange and hybrid situation could arise that the pledgee was entitled to keep the pledge indefinitely without,

158Cf. Kaser, (1979) 47 TR 221. This formula was probably not contained in the edict. According to Rene Robaye, "Sanction judiciaire du contrat de gage en droit romain classique", (1987) 34 RIDA 309 sqq., the actio in ius concepta is of post-classical origin.

159For a discussion of cases in which the in factum formula did not lead to satisfactory

results and a more flexible instrument was needed, cf. Kaser, (1979) 47 TR 216 sqq.

16(1 C. 8, 27, 20 (Diocl.); cf. e.g. Ulrich von Lubtow, "Catos leges venditioni et locationi

dictae", in: Symbolae Raphael! Taubenschlag, vol. Ill (1957), pp. 329 sqq.

161 Cf. A. Manigk, RE, 20, 1 (1941), col. 1248 sqq.; von Lubtow, Symbolae Taubenschlag, vol. III, pp. 314 sqq.; Kaser, (1976) 44 TR 244 sqq.; but see, for example, Frezza, Garanzie, vol. II, pp. 82 sqq.

163 Kaser, (1976) 44 TR 254 sqq.; but see, for instance, Gyorgy Diosdi, Ownership in Ancient and Predassical Roman Law (1970), pp. 118 sqq.; Gerhard Schlichting, Die

Ver?igungsbeschrankung des Verpfanders im klassischen romischen Recht (1973), pp. 124 sqq.

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however, being able to use it as a means of obtaining satisfaction.258 In order to avoid this anomaly, the parties had to come to some arrangement regarding the consequences of non-redemption of the pledge as part of their conventio pignoris. Thus, for instance, they could agree on a conditional transfer of ownership on the basis of either sale259 or datio in solutum.260 If the debt remained undischarged, the pledgee was to be taken to have bought the pledge or to have received and accepted it in lieu of fulfilment.261 Such clauses represent the contractual variant of the old forfeiture regime, and it is obvious that they are problematic and dangerous. If the pledge was valuable, the creditor would try to insist on their inclusion in the contract, and the debtor, hard pressed for money and overoptimistic as far as his ability to repay was concerned, was usually not in a position to resist these pressures. The Roman lawyers, therefore, tried in various ways to mitigate the effect of these forfeiture clauses, in order to protect the pledgor;262 in post-classical times, such clauses fell foul of Constantine's prohibition of leges commissoriae263 and were regarded as invalid.264 Alternatively, the conventio pignoris could contain a pactum de vendendo: the pledgee should be authorized to obtain satisfaction by selling the pledge.265 From the time of the later Republic this was what the parties regularly agreed upon;266 by the days of the Severan Emperors, the sale of pledges had become so common267 that, even

25H "Bewahrungspfand": Kaser, (1976) 44 TR 253 sq.; idem, RPr I, p. 461, n. 11. A creditor, incidentally, who used the pledged property without the permission of the pledgor, committed theft (Gai. D. 47, 2, 55 pr.). Frequently, however, the parties agreed that the creditor keep the proceeds of the pledged property in lieu of interest; this was known as avjC\pr\aic (Marci. D. 20, 1, 11, 1). For details, sec Alfred Manigk, Giaubigerbefriedigutig durch Nutzung (1910); Kaser, (1979)45 SDHI80 sqq.; Henryk Kupiszewski, "Antichrese und Nutzpfand in den Papyri", in: juris Professio, Festgabe fur Max Kaser (1986), pp. 133 sqq.; Honsell/Mayer-Maly/Selb, pp. 202 sqq.

klassischen und im nachklassischen Recht", in: Studien im romischen Recht (1973), pp. 137 sqq.

263CT 3, 2, 1; d. also C. 8, 34, 3.

264Peters, Studien, supra note 261 , pp. 161 sqq. However, the pledgee could obtain rescission of the clause only if he was prepared to pay off his debt. This considerably impaired the protective effect of Constantine's provision. Cf. Levy, Obligationenrecht, p. 192. As far as modern law is concerned, see 1229 BGB: "An agreement made before the existence of the right to sell, by which the ownership of the thing falls to the pledgee or is transferred

to him, in case he does not, or does not in one time, receive satisfaction, is void."

6S Alberto Burdese, Lex commissoria e ius vendendi nella fiducia e ne! pignus (1949), pp. 131

sqq.; von Lubtow, Symbolae Taubenschlag, vol. Ill, pp. 321 sqq.; Frezza, Garanzie, vol. II, pp. 200 sqq.; Kaser, (1979) 47 TR 210 sqq. As far as the transfer of ownership is concerned, cf. Gai. II, 64; also Ulp. D. 13, 7, 4 and Ulp. D. 41, 1, 46.

266 Apart from that, the pledgor (regularly?) appears to have undertaken not to alienate the object that had been given as a pledge. Cf. Marci. D. 20, 5, 7, 2 and, for details, Schlichting, op. cit., note 257, pp. 9 sqq., 27 sqq.; Kaser, (1976) 44 TR 233 sqq., 282 sqq.;

Honsell/Mayer-Maly/Selb, p. 202.

267 Cf. e.g. C. 4, 24, 4 ("pactum vulgare").

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without any special agreement to that effect, the authority to sell was taken to be part of the contractual arrangement of the parties.268 If the purchase price exceeded the amount of the secured debt, it was now the pledgor who was generally taken to be entitled to such a surplus.264 The proceeds of the sale had taken the place of the pledge and afforded satisfaction to the extent that the pledgee deserved to be satisfied: up to the amount of the secured debt. Appreciation of the fact that the pledgee was not necessarily entitled to the full value of the pledge entailed another change of perspective: if necessary, the pledgee had to be forced to do what was now no longer only in his own but also in the pledgor's interest, and it could therefore no longer be left to his discretion to decide whether he wanted to sell the property or not. Our oldest testimony for this change of perspective is contained in D. 13, 7, 6 pr., where Atilicinus is reported to have advocated, albeit only "ex causa" and not as a general rule, that "cogendum creditorem esse ad vendendum . . .: quid enim si multo minus sit quod debeatur et hodie pluris venire possit pignus quam postea?"270 Once the pledgee/creditor had obtained the purchase price, the debt was regarded as discharged. Complications could, however, arise, if the pledge had not belonged to the pledgor. Here, the pledgee was not able to transfer ownership to the purchaser and was therefore still exposed to liability for eviction. Under these circumstances, as Tryphoninus puts it, "in suspenso haberi liberationem".271 In order to avoid this, the pledgee usually requested the pledgor to authorize him to sell the pledge subject to a pactum de non praestanda evictione:272 the purchaser of the pledge was then asked to renounce his rights arising from the contract of sale in case of legal defects; this, of course, he did only against a reasonable reduction of the purchase price, which, in turn, reduced the pledgor's chances of receiving a substantial superfluum.

4. The liability of the pledgee

Once again, one can see here that the debtor's position was fairly weak. If possible, he would rather have tried to discharge his debt and to ask the pledgee to restore the pledge. To enable him to enforce this request

26H Cf. Ulp. D. 13, 7, 4 and Pomp. D. 13. 7, 5, who both mention a pactum ne veneat. Cf. Kaser, (1979) 47 TR 213 sq.; von Lubtow, Symbotae Taubenschlag, vol. HI, pp. 325 sqq.; Buckland/Stein, pp. 476 sq; Hausmaninger/Selb, p. 237; Honsell/Mayer-Maly/Selb, p. 199: Thomas, TRL, pp. 189 sq., 331; differently Burdesc, op. cit., note 265, pp. 141 sqq.; Frezza, Garanzie, vol. II, pp. 200 sqq. The pledgee had to notify the debtor of his intention to sell the pledge (denuntiatio): C. 8, 27, 4 (Alex.). In post-classical times, three denuntiationes were required: Levy, pp. 187 sq. Justinian comprehensively regulated and reformed the

procedure: cf. C. 8, 33, 3 for all details.

269 Cf. Pap. D. 13, 7, 42; Marci. D. 20, 6, 8, 10; Pap. D. 20, 4, 17; C. 8, 27, 20 (Diocl.); Kaser, Quanti ea res est (1935), pp. 78 sqq.

270For details see Kaser, (1979) 47 TR 212 sq.

271D. 20, 5, 12, 1; Schwarz, (1954) 71 ZSS 147 sqq.

272Pap. D. 21, 2, 68 pr.; cf. also Paul. D. 20, 5, 10; Burdcse, op. cit., note 265, pp. 173

sqq.; Frezza, Garanzie, vol. II, pp. 208 sqq.; Kaser, (1979) 47 TR 211 sq. , 224 sq.

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was, as we have seen, the main purpose of the actio pigneraticia. Of course, this remedy could not necessarily be brought only where the pledge was still in the pledgee's possession, but also where the latter could be held responsible for its loss or destruction. It is, however, very difficult to give a conclusive answer as to what was in actual fact expected of the pledgee in classical law, and how therefore the standard of liability was fixed.273 Ulpian D. 50, 17, 23 rates the pledgee among those persons liable for dolus and culpa. This statement is confirmed by a variety of other fragments.274 On the other hand, in Ulp. D. 13, 7, 13, 1 we read the following in connection with the actio pigneraticia:275 "Venit autem in hac actione et dolus et culpa, ut in commodato: venit et custodia: vis maior non venit"; and seeing that Justinian tried to abolish the classical custodia liability, the words "venit et custodia" can hardly have been interpolated.276 There are writers, however, who have even regarded the various allusions to culpa as interpolated; they consider the pledgee as having been liable for dolus only.277 The most likely explanation for the confused state of our sources is that the question was controversial among the classical lawyers. An initial dolus liability was probably extended to cover cases of what we today would call negligence. After the formula in ius concepta with its bonae fidei clause had been introduced, some lawyers seem to have gone even further and advocated custodia liability, perhaps only for certain situations.278 Seeing, however, that a pledge is normally agreed upon

273Cf. Arangio-Ruiz, Responsabilite contrattuale, pp. 138 sqq.; Luzzatto, op. cit., note 53, pp. 233 sqq.; Alvaro d'Ors, "Observaciones sobre el 'edictum de rebus creditis'". (1953) 19

SDHI 196 sqq.; Norr, (1956) 73 ZSS 84 sqq.; Frezza, Caranzie, vol. II, pp. 241 sqq.; Kaser (1979) 46 SDHI 70 sqq.; idem, " 'Furtum pignons' und 'furtum fiduciac1", (1982) 99 ZSS 249 sqq.; Hans Ankum, "La responsabilita del creditore pignoratizio nel dineto romano classico", in: Stndi in onare di Amaido Biscardi. vol. IV (1983), pp. 587 sqq.; Laura Rota, "Contrast! dottrinari e ipotesi di studio in tema di responsabilita del creditore pignoratizio", in: Studi in onore di Arnaldo Biscardi, vol. V (1984), pp. 329 sqq.; Robaye, (1987) 34 RIDA 311 sqq. On the closely related question of who could bring the actio furti (and thus receive duplum: the pledgee/creditor—on account of his custodia liability or for some other reason—or the pledgor as owner), cf. the recent contributions by Hans Ankum, "Furtum pignons und furtum fiduciae im klassischen romischen Recht". (1979) 26 RIDA 127 sqq. (1980) 27 RIDA 95 sqq.; J.A.C. Thomas, "Furtum pignons: a commentary on the commentaries", in: Studi in onore di Cesare Sanfilippo, vol. I (1982), pp. 585 sqq.; G.C.j.J. van den Bergh, "Custodiae and turtum pignoris", in: Studi in onore di Cesare San?iippo, vol. I

(1982), pp. 601 sqq.; Kaser, (1982) 99 ZSS 249 sqq.; most recently cf. Rene Robaye,

L'obligation de garde. Essai sur la responsabilite contractuelle en droit romain, (1988).

274 Ulp. D. 13, 6, 5, 2; Paul. D. 13, 7, 30 (on this text Watson, Obligations, pp. 182 sqq.); Pap. D. 20, 1, 2: Ulp. D. 44, 4, 4, 8; Ulp. D. 47, 2, 14, 6.

~7r> Differently Bertha Bergsma-van Krimpen, "Eine neue Interpretation von D. 13, 7,

13", (1979) 26 RIDA 163 sqq.

276 Cf. also Ulp. D. 47, 2, 14, 16; C. 8, 13, 19 (Diocl.).

2/ 7 Cf. Franz Haymann, "Textkritische Studien zum romischen Obligationenrecht", (1919) 40 ZSS 213 sqq.

278 For custodia liability as the general rule in classical law, cf. especially Ankum, Studi Biscardi, vol. IV, pp. 587 sqq.; at least for late classical law now also Kaser, (1982) 99 ZSS 249 sqq.; cf. also Rota, Studi Biscardi, vol. V, pp. 329 sqq. Contra, most recently, Robaye, (1987) 34 RIDA 311 sqq., 321 sqq.

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for the benefit of both parties ("quia pignus utriusque gratia datur, et debitons, quo magis ei pecunia crederetur, et creditons, quo magis ei in tuto sit creditum"),279 the two extreme standards of dolus on the one and custodia on the other end of the spectrum do not really commend themselves as balanced solutions to the problem. Hence we find Justinian opting for culpa liability: ". . . placuit sufficere, quod ad earn rem custodiendam exactam dihgentiam adhiberet. "28° Thus, to all intents and purposes he settled the question; throughout the ages,281 the pledgee, in terms of the contract of pignus, has consistently been held responsible for culpa (levis).282

5. The actio pigncraticia contraria

We have thus far been dealing with the pledgor's (contractual) remedy against the pledgee. However, just like the commodatary and the depositary, the pledgee might have incurred expenses or suffered damages; hence the need for a iudicium contrarium. As far as expenses were concerned, we can obtain the necessary information from Pomp. D. 13, 7, 8 pr. (even though this text may well have dealt originally with fiducia):203

"Si necessarias impensas fecerim in servum aut in fundum, quem pignoris causa acccperim, non tantum retentionem, sed etiam contrariam pigneraticiam actionem habebo: finge enim medicis, cum aegrotaret servus, dcdisse me pecuniam et eum decessisse, item insulam fulsisse vel refecisse et postea deustam esse, nee habere quod possem retinere."

Originally, a ius retentionis seems to have been available to the pledgee: he did not have to return the pledge until he had been reimbursed for his necessary expenses. But what if there was nothing to retain any more? A slave had been pledged and had fallen sick. The medical bill was paid by the pledgee, but then the slave died. Here a ius retentionis did not help the pledgee as far as recovery of the medical expenses was concerned. Thus he was given the actio pigneraticia contraria.284

Damages, on the other hand, could always be claimed under the provisions of the actio de dolo.285 But it was soon realized that this general remedy was too restricted and thus not able to provide satisfactory protection of the pledgee's reasonable expectations. It was felt especially that the pledgee could expect the pledged property to

279Inst. Ill, 14, 4; cf. also Ulp. D. 13, 6, 5, 2.

280Inst. Ill, 14, 4; De Robertis, Responsabilite contrattuale, pp. 345 sqq.

281Cf. e.g. Accursius, gl. Exactam ad. I. 3, 15, 4; Vinnius, Institutiones, Lib. Ill, Tit. XV, 4; Grotius, Inleiding, III, VIII, 4; Pothier, Traite de S'hypotheke, ch. IV (DM nantissement), III; Windscheid/Kipp, p. 382; Story, Bailments, p. 332.

2K2 Paul. D. 13, 7, 14: "Ea igitur, quae diligens pater familias in suis rebus praestare solet, a creditore exiguntur."

283Justinian merged pignus and fiducia; it Is therefore often difficult to decide with which of these two forms of security the classical authors in actual fact dealt.

284Cf. further C. 4, 24, 7, 1 (Gord.).

285Ulp. D. 13, 7, 36, 1.

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belong to the pledgor and not to have been otherwise encumbered. The problems arising from res aliena pignori data vel alii obligata are discussed in a variety of texts; the picture that emerges is that the pledgor seems to have been strictly liable for these legal defects. In Paul. D. 13, 7, 16, 1 the position is summed up in the following words:

"Contrariam pigneraticiam creditori actionem competcre certum est. proinde si rem alienam vel alii pigneratam vel in publicum obligatam dedit, tenebitur, quamvis et stcllionatus crimen committat. sed utrum ita demum, si seit, an et si ignoravit? et quantum ad crimen pertinet, excusat ignorantia: quantum ad contrarium iudicium, ignorantia eum non excusat, ut Marcellus libro sexto digestorum scribit. sed si sciens creditor accipiat vel alicnum vel obligatum vel morbosum, contrarium ei non competit. "286

This did not mean, however, that the pledgor would always be liable, regardless of fault, for damages caused to the pledgee. Ulpianus relates an incident where copper was given as a pledge instead of gold:

"Si quis in pignore pro auro aes subiecisset creditori, qualiter teneatur, quaesitum est. in qua specie rectissime Sabinus scribit . . . si in dando aes subiecisset, turpitur

fecisse. . . , sed et hic puto pigneraticiam iudicium locum habere, et ita Pomponius scribit. "2H7

It is clear from the context that Sabinus had been dealing with a fraudulent manipulation on the part of the pledgor.288 Pomponius seems to have granted the actio pigneraticia contraria under the same circumstances in which Sabinus originally used the actio de dolo.289 In these "aes pro auro" cases,290 the pledgor was liable for dolus in contrahendo.291 Fraudulent behaviour on the part of the pledgor could, however, occur not only in the process of entering into the contract of pledge, but also when the pledge was returned.

"Si quasi recepturus a debitore tuo comminus pecuniam reddidisti ei pignus isque per fenestram id misit excepcuro eo, quem de industria ad id posuerit, Labeo ait furti te agere cum debitore posse et ad exhibendum: et, si agente te contraria pigneraticia excipiat debitor de pignore sibi reddito, replicabitur de dolo at fraude, per quam nee redditum, sed per fallaciam ablatum id intellegitur."292

The pledgee returns the pledge to his debtor in the expectation that the latter has come to repay the debt. Instead of doing that, the debtor takes the pledge and throws it out of the window. Outside he has posted an accomplice who has been instructed to catch the pledge. The pledgee, according to Pomponius, will succeed with his actio pigneraticia

286 Cf. further Ulp. D. 13, 7, 9 pr.; Marci. D. 13, 7, 32; C. 8, 15, 6 (Diocl.); Schwarz, (1954) 71 ZSS I42 sqq.; Stein, Fault, pp. 128 sqq.; Kaser, (1979) 47 TR 223 sqq.

287Ulp. D. 13, 7, 36 pr.

288Schwarz, (1954) 71 ZSS 136; Stein, Fault, pp. 137 sq.

The actio de dolo has probably been cut out by the compilers; Ulpian originally wrote this text in the course of a commentary on the actio de dolo (11 ad ed.).

290Cf. also Ulp. D. 13, 7, 1, 2.

291Cf. further Paul. D. 46, 1, 54.

293 Pomp. D. 13, 7, 3. On this text Schwarz, (1954) 71 ZSS 160 sq. and especially Kascr, (1979) 47 TR 227 sq., vindicating it for classical law against a variety of interpolation hypotheses (e.g. Frezza, Garanzie, vol. I, p. 295; d'Ors, (1953) 19 SDHI 191).

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contraria,293 because even though the debtor might raise the exceptio de pignore sibi reddito (after all, the pledgee has returned the pledge to him), he will be able to counter this exceptio with a replicatio de dolo et fraude.

Instead of actively pursuing his claims against the pledgor by means of the contrarium iudicium, the pledgee could opt to wait and see: if he was sued under the actio pigneraticia, he could avail himself of his ius retentionis and refuse to hand back the pledge until his claims had been satisfied. The Emperor Gordian increased the strength of the pledgee's position by allowing him to retain the pledge even on account of any other claim that he might have against the debtor. On being sued for the return of the pledge, he could avail himself of the exceptio doli for this purpose.294

293Besides, the actio furti (possessionis) and the actio ad exhibcndum are applicable.

294C. 8, 26, 1, 2; Enzo Nardi, Studi sulla ritenzione in diritto romana, vol. I (1947), pp. 203 sqq.; cf. also Story, Bailments, pp. 304 sq.

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Emptio venditio I

I.THE BINDING NATURE OF CONSENSUAL SALE

1.Consensus

The development of the consensual contracts generally, and of the rules relating to the contract of sale in particular, is one of the most remarkable achievements of Roman jurisprudence. The Roman law of sale has provided us with the basic tools for our modern analysis of this economically most important of contracts, and it has invariably shaped our way of thinking about sale, irrespective of whether certain individual rules were preserved or rejected. Even where modern legislators have chosen not to follow the example of Roman law, the latter provides the background against which to evaluate such a decision and to appreciate its implications. Thus, the Roman law of sale has been emphatically described as "the most fruitful subject in Roman law for the English law-student";1 and one could apply this statement with even greater justification to the English law student's Continental or South African counterpart.

The contract of sale (emptio venditio) was purely consensual. The sole basis for the respective obligations to deliver the goods and to pay the purchase price was the agreement between seller and purchaser. No form was needed, no witnesses had to be present, no rei interventio was required.

2.The question of arrha

(a)Arrha confirmatoria

Nor was the handing over of an arrha necessary in order to make the contract binding. Arrha is an object (in Rome, usually a ring2 or a sum of money) given, upon entering into a contract, as an earnest.3 The historical analysis of this institution is a favourite topic of discussion, especially amongst English romanists;4 the disputes, however, rage mainly around the developments in the law of the Roman Republic and of Justinian, whereas the situation in classical law is relatively clear.

1De Zulueta, Sale, p. III.

2Cf. Ulp. D. 14, 3, 5, 15; Ulp. D. 19, 1, 11, 6; on the history of arrha, see Pringsheim, Sale, pp. 335 sqq.

3The German term "Draufgabe" is misleading in view of what is set out infra, note 8. The term "Handgeld" (Windscheid/Kipp, § 325) is more apposite.

4For a recent overview, see M. McAuley, "One Thousand Years of Arra", (1977) 25

McGitl LJ 693 sqq.

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