PIGNUS pledge

Question 1

pignus/pledge

Answer 1

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

Question 2

pledgee/creditor

Answer 2

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

Question 3

aim of pledge

Answer 3

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

Question 4

types of pledges

Answer 4

contractual pledge
judicial pledge
statutory pledge

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

Question 5

non-possessory pledge/lien

Answer 5

pledger retains possession of the pledged property

Question 6

possessory pledge

Answer 6

pledges property is handed over into custody of the pledgee

Question 7

fideiussio

Answer 7

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

Question 8

fiducia cum creditore

Answer 8

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

Question 9

real contract

Answer 9

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

Question 10

right of pledge

Answer 10

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)

Question 11

contract of a pledge

Answer 11

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

Question 12

requirement of a pledge as a right in rem

Answer 12

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

Question 13

actio pigneratica in rem

Answer 13

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)

Question 14

legal remedies

Answer 14

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

Question 15

exceptio pigneraticia

Answer 15

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

Question 16

interdicutum salvianum

Answer 16

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

Question 17

actio pignoris

Answer 17

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

Question 18

actio pigneraticia in personam directa

Answer 18

the pledger may assert these claims against the pledgee

Question 19

actio pigneraticia in personam contraria

Answer 19

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

Question 20

res aliena pignori data

Answer 20

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

Question 21

actio pigneratica in rem utilis

Answer 21

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

Question 22

termination of the right of pledge prior to enforcement

Answer 22

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

Question 23

indivisa est pignoris causa

Answer 23

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

Question 24

blanket lien

Answer 24

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)

Question 25

pignus tacitum/tacit liens

Answer 25

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

Question 26

invecta illata

Answer 26

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

Question 27

interdictum de migrando

Answer 27

if the tenant moves he may demand the return of his impounded property

Question 28

statutory liens

Answer 28

rights of pledge which result directly from statutes or from the law as a whole

Question 29

priority of rights of pledge

Answer 29

order od seniority of multiple rights of pledge os determines by the order of their creation --> principle of priority: prior tempore, potior iure

Question 30

exceptio rei sibi ante pigneratae

Answer 30

senior pledger may assert the priority of his right against the junior pledgee's vindicatio pignoris by this claim

Question 31

exceptions from the principle of priority

Answer 31

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