[GAIUS libro singulari de formula hypothecaria. ] §20.1.15.prEt quae nondum sunt, futura tamen sunt, hypothecae dari possunt, ut fructus pendentes, partus ancillae, fetus pecorum et ea quae nascuntur sint hypothecae obligata: idque seruandum est, siue dominus fundi conuenerit aut de usu fructu aut de his quae nascuntur siue is, qui usum fructum habet, sicut Iulianus scribit.
[GAIUS, in his single book on the Hypothecary Formula.] And things which do not yet exist, but will exist in the future, can be given as a pledge, so that pending fruits, the offspring of a female slave, the young of cattle, and those things which are born may be bound by hypotheca; and this must be observed, whether the owner of the land has agreed either concerning the usufruct or concerning those things which are born, or he who has the usufruct, as Julian writes.
§20.1.15.1Quod dicitur creditorem probare debere, cum conueniebat, rem in bonis debitoris fuisse, ad eam conuentionem pertinet, quae specialiter facta est, non ad illam, quae cottidie inseri solet cautionibus, ut specialiter rebus hypothecae nomine datis cetera etiam bona teneantur debitoris, quae nunc habet et quae postea adquisierit, perinde atque si specialiter hae res fuissent obligatae.
What is said, that the creditor must prove that the thing was in the property of the debtor when the agreement was made, pertains to that agreement which was made specifically, not to that which is customarily inserted daily in securities, to the effect that, besides the things given specifically under the name of hypotheca, the other goods of the debtor which he now has and which he shall later acquire should also be bound, just as if these things had been specifically pledged.
§20.1.15.2Qui res suas iam obligauerint et alii secundo obligant creditori, ut effugiant periculum, quod solent pati qui saepius easdem res obligant, praedicere solent alii nulli rem obligatam esse quam forte Lucio Titio, ut in id quod excedit priorem obligationem res sit obligata, ut sit pignori hypothecaeue id quod pluris est: aut solidum, cum primo debito liberata res fuerit? de quo uidendum est, utrum hoc ita se habeat, si et conueniat, an et si simpliciter conuenerit de eo quod excedit ut sit hypothecae? et solida res inesse conuentioni uidetur, cum a primo creditore fuerit liberata, an adhuc pars? sed illud magis est, quod prius diximus.
Those who have already pledged their things and pledge them to another creditor in the second place, in order to escape the danger which those who pledge the same things too often are accustomed to suffer, are accustomed to declare beforehand that the thing is pledged to no other than, for example, Lucius Titius, so that the thing may be pledged for that which exceeds the prior obligation, so that what is of greater value may be for a pledge or hypotheca; or the whole thing, when the thing has been released from the first debt? Concerning which it must be seen whether this is so if it is also agreed, or even if it is simply agreed concerning that which exceeds, that it should be for hypotheca? And does the whole thing seem to be included in the agreement when it has been released by the first creditor, or still a part? But that which we said first is more correct.