Page:Bury J B The Cambridge Medieval History Vol 2 1913.djvu/121

Rh be applied to all kinds of property, movable and immovable, near or distant, specific or general, corporal or incoporeal (such as investments). And the creditor was not responsible, as he was in the case of pignus, for the care and safekeeping of the object. In other respects the law which applied to the one applied to the other. A written contract was not necessary, if the contract could be proved otherwise.

Tacit pledges were recognised in some cases. Thus the law treated as pledged to the lessor for the rent, without any distinct agreement, whatever was brought into a house by the lessee with the intention of its staying there. A lodger's things were deemed to be pledged only for his own rent. In farms the fruits were held to be pledged, but not other things except by agreement. One who supplied money for reconstructing a house in Rome had the house thereby pledged to him; and for taxes or any debt to the Crown (fiscus) a person's whole property was so treated: guardians' and curators' property is in the same position as security to their wards; husband's as security to the wife for her dowry (531); and what an heir gets from testator is security to the legatees and trust-heirs; what a fiduciary legatee gets is security to the legatee by trust.

Any clause in a pledge-agreement which provided for forfeiture of the pledged property in default of due payment of the loan (Lex commissoria) was forbidden by Constantine. But the right of sale for non-payment of debt was, in the absence of contrary agreement, deemed inherent in pledge. It had however to be exercised with due formality after public notice and the lapse of two years from the time when formal application had been made to the debtor or from the judgment of the Court. Then if no sale was effected, the creditor could after further time and fresh notice petition the Emperor for permission to retain the thing as his own. If the value of the pledge did not equal the amount of the debt, the creditor could proceed against the debtor for the balance; if its value was more, the debtor was entitled to the surplus. Where the creditor was allowed to retain the thing as his own, Justinian allowed a still further period of two years in which the debtor could claim it back on payment of the debt and all creditor's expenses (530).

(fidejussores) were frequently given and were applicable to any contract, formal or informal, and even to enforce a merely natural obligation, as a debt due from a slave to his master. Sureties were bound by stipulation. If there were more than one, each was liable for the whole for which the debtor was liable, but Hadrian decided that a surety making application for the concession should be sued only for his share, provided another surety was solvent. The creditor had the option of suing the debtor or one of the sureties, and, if not satisfied, then the other; but this was modified by Justinian (535), who enacted that the debtor should be first sued if he were there, and that if he were not, time should be given to the sureties to fetch him; if he could not be