Page:Harvard Law Review Volume 10.djvu/99

73 A BRIEF SURVEY OF EQUITY JURISDICTION. 73 It is a great mistake, however, to suppose that there is no longer any occasion for real obligations, or that they have ceased to exist. On the contrary, many of the reasons for their existence are as strong as they ever were, and accordingly they are still in daily use. I. Although a creditor, when he has obtained a judgment against his debtor upon a personal obligation, is entitled to have the same satisfied out of the debtor's property, yet a personal obligation of itself gives the creditor no right as against the debtor's property, nor does it at all limit the debtor's power over his property; and consequently it gives a creditor no priority over other creditors of the same debtor. In short, it is only in one event that a personal obligation is a satisfactory security to a creditor, namely, that of the debtor's being solvent, and so remaining till the debt is paid. If, therefore, a creditor wishes to secure the payment of his debt, irrespective of the debtor's solvency, he must obtain some other security than a personal obligation, namely, a security upon prop- erty, either of the debtor or of some third person. Moreover, there are only two ways of accomplishing this object ; namely, first, by transferring the ownership of the property to the creditor, or to some other person for his benefit ; secondly, by creating an obliga- tion upon the property in the creditor's favor. The second of these modes was the one exclusively used by the Romans in the later periods of their history, and is the one, generally at least, used by the modern nations of continental Europe, while in Eng- land and with us both are used. The Romans had two ways of creating the obligation, namely, first, by the delivery of the property to the creditor, to be held by him till the debt was paid (^pignus) ; secondly, by a mere agreement between the owner of the property and the creditor, the property remaining in the possession of its owner (Jiypotheca). Originally, possession of the property by the creditor was indispensable, and so the pignus alone existed ; but, at a later period, the parties to the transaction were permitted to choose between a pigmis and a hypotheca. So long as the pignus was alone in use, it is obvious that the obligation could be created only by the act of the parties, as they alone could change the pos- session of the property. But when the step had been taken of permitting the mere agreement of the parties to be substituted for a change of possession, it was another easy step for the law, when- ever it saw fit, to substitute its own will for the agreement of the parties ; and hence hypothecations came to be divisible into such