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PIGNUS pledge Flashcards

(31 cards)

1
Q

pignus/pledge

A

a contract in which goods or property are given as security for a debt or obligation

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2
Q

pledgee/creditor

A

the right of pledge gives the pledgee a right to another’s property, it entitles the pledgee to satisfy his claim against the debtor from the proceeds of the pledged property if the debtor fails to pay on the due date of the secured debt

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3
Q

aim of pledge

A

secure a claim the creditor has against the debtor, if he fails to pay the creditor is entitled to enforce the pledge and keep as much of the proceeds as is needed to satisfy the debt

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4
Q

types of pledges

A

contractual pledge
judicial pledge
statutory pledge

–> non-possessory pledge/lien
–> possessory pledge

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5
Q

non-possessory pledge/lien

A

pledger retains possession of the pledged property

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6
Q

possessory pledge

A

pledges property is handed over into custody of the pledgee

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7
Q

fideiussio

A

personal guarantee
guarantor’s promise provides additional security for the creditor’s claim, this leads to the creation of an obligatory claim against the guarantor (not a real right)
when debtor fails to pay on the due date, creditor has choice of suing the debtor/demanding his money from guarantor

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8
Q

fiducia cum creditore

A

transfer of ownership of one of the debtor’s assets to the creditor. if the debtor fails to pay on the due date, the creditor is obliged to return the right of ownership to the original owner
secured debtor has actio fiduciae directa
secured creditor has actio fiduciae contraria

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9
Q

real contract

A

contract that comes into existence upon delivery of its object (datio), rather than by mere consensus between the parties

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10
Q

right of pledge

A

right in rem secures the pledgee’s claim against the debtor
right created when they agree that the creditor’s claim is to be secured (conventio pignoris)

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11
Q

contract of a pledge

A

real contract between pledger and pledgee which specifies the contractual obligations between them
it comes into being upon delivery of the pledged property

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12
Q

requirement of a pledge as a right in rem

A
  1. existence of a valid
    monetary claim against the debtor which is to be secured
  2. the pledger’s ownership or authorisation to dispose of the pledged property (bonitarian sufficient) –> nemo plus iuris
  3. agreement between pledger and pledgee that the pledged property serves to secure the crediotr’s claim against the debtor –> CONVENTIO PIGNORIS
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13
Q

actio pigneratica in rem

A

if the debtor fails to pay on the due date, the secured creditor may bring this claim for possession of the pledged property and then enforce the pledge (non-possessory pledge)

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14
Q

legal remedies

A

once the debt is due and the debtor fails to pay the secured creditor can demand the pledged property from whoever is in possession, and when the creditor has lost possession of a possessory pledge and want to regain it (actio in rem)
–> ACTIO PIGNERATICIA IN REM
–> VINDICATIO PIGNORIS

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15
Q

exceptio pigneraticia

A

in the case of possessory pledge, the secured creditor can defend himself against the pledger’s rei vindicatio

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16
Q

interdicutum salvianum

A

if a leaseholder has explicitly pledged the moveable property he has brought onto the leasehold to the lessor, the lessor has this interdict to gain possession of these assets for the first time

17
Q

actio pignoris

A

in the case of non-possessory pledges, no real contract initially exists, it is only when the pledger hands over the pledged property to the pledgee or when the pledgee obtains possession of the pledged property by this claim that a real contract comes into existence

18
Q

actio pigneraticia in personam directa

A

the pledger may assert these claims against the pledgee

19
Q

actio pigneraticia in personam contraria

A

to assert his rights arising from the contract of pledge, the secured creditor has this claim
can claim even if the pledger has delivered an item of property to him but has given him no property right in the asset

20
Q

res aliena pignori data

A

if the parties enter into a conventio pignoris concerning property in which the pledger has neither ownership nor authority of disposition, the pledgee does not obtain a valid right of pledge
the pledgee’s position heals if the pledger at a later date acquires ownership

21
Q

actio pigneratica in rem utilis

A

when pledgee becomes right in rem to the pledged property after the pledger has acquired ownership

22
Q

termination of the right of pledge prior to enforcement

A
  1. when the secured debt ceases to exist (when debt paied, debt acquitted)
  2. secured creditor can waive his right of pledge
23
Q

indivisa est pignoris causa

A

if several items of property have been pledged, the secured creditor retains a right of pledge on all of them as long as the secured debt continues to exist –> principle of undivided liability of pledges

24
Q

blanket lien

A

grants a creditor the right to claim a security interest in all of a debtor’s future/present assets
excluded: items not usually given as individual pledges (household items, personal effects, clothing, slaves)

25
pignus tacitum/tacit liens
implicitly grant the other party a non-possessory right of pledge eg. tenant of apartment is assumed to have granted the landlord a right of lien over the assets he has brought into the apartment matter of ius dispositivum
26
invecta illata
the landlord of an apartment is assumed to have been tacitly granted a right of lien over the moveable assets the tenant has brought into the apartment (if has at least bonitarian ownership) landlord may impound the tenant's property without bringung court claim
27
interdictum de migrando
if the tenant moves he may demand the return of his impounded property
28
statutory liens
rights of pledge which result directly from statutes or from the law as a whole
29
priority of rights of pledge
order od seniority of multiple rights of pledge os determines by the order of their creation --> principle of priority: prior tempore, potior iure
30
exceptio rei sibi ante pigneratae
senior pledger may assert the priority of his right against the junior pledgee's vindicatio pignoris by this claim
31
exceptions from the principle of priority
1. sometimes broken by statutory provisions 2. priority is given to a right of pledge intended to secure a claim arising from a loan that has been taken out to maintain or improve the pledged property 3. if the debtor takes out a new loan to pay back an old one for the purpose of debt restructuring, the new creditor succeeds in rank of the old one