PIGNUS pledge Flashcards
(31 cards)
pignus/pledge
a contract in which goods or property are given as security for a debt or obligation
pledgee/creditor
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
aim of pledge
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
types of pledges
contractual pledge
judicial pledge
statutory pledge
–> non-possessory pledge/lien
–> possessory pledge
non-possessory pledge/lien
pledger retains possession of the pledged property
possessory pledge
pledges property is handed over into custody of the pledgee
fideiussio
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
fiducia cum creditore
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
real contract
contract that comes into existence upon delivery of its object (datio), rather than by mere consensus between the parties
right of pledge
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)
contract of a pledge
real contract between pledger and pledgee which specifies the contractual obligations between them
it comes into being upon delivery of the pledged property
requirement of a pledge as a right in rem
- existence of a valid
monetary claim against the debtor which is to be secured - the pledger’s ownership or authorisation to dispose of the pledged property (bonitarian sufficient) –> nemo plus iuris
- agreement between pledger and pledgee that the pledged property serves to secure the crediotr’s claim against the debtor –> CONVENTIO PIGNORIS
actio pigneratica in rem
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)
legal remedies
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
exceptio pigneraticia
in the case of possessory pledge, the secured creditor can defend himself against the pledger’s rei vindicatio
interdicutum salvianum
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
actio pignoris
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
actio pigneraticia in personam directa
the pledger may assert these claims against the pledgee
actio pigneraticia in personam contraria
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
res aliena pignori data
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
actio pigneratica in rem utilis
when pledgee becomes right in rem to the pledged property after the pledger has acquired ownership
termination of the right of pledge prior to enforcement
- when the secured debt ceases to exist (when debt paied, debt acquitted)
- secured creditor can waive his right of pledge
indivisa est pignoris causa
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
blanket lien
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)