[MARCIANUS libro singulari ad formulam hypothecariam. ] §20.1.16.prSi fundus hypothecae datus sit, deinde alluuione maior factus est, totus obligabitur.
[MARCIANUS, in his single book on the Hypothecary Formula.] If a tract of land has been given as a hypotheca, and thereafter has been made larger by alluvion, the whole of it will be bound.
§20.1.16.1Si nesciente domino res eius hypothecae data sit, deinde postea dominus ratum habuerit, dicendum est hoc ipsum, quod ratum habet, uoluisse eum retro recurrere ratihabitionem ad illud tempus, quo conuenit.
If his property has been given as a hypotheca without the owner's knowledge, and thereafter the owner has ratified it, it must be said that by this very fact of ratifying, he wished the ratification to relate back to the time when the agreement was made.
uoluntas autem fere eorum demum seruabitur, qui et pignori dare possunt.
However, generally only the will of those who are also able to give a pledge will be observed.
§20.1.16.2Si res hypothecae data postea mutata fuerit, aeque hypothecaria actio competit, ueluti de domo data hypothecae et horto facta: item si de loco conuenit et domus facta sit: item de loco dato, deinde uineis in eo positis.
If a thing given as a hypotheca has subsequently been changed, the hypothecary action is equally available; for example, in the case of a house given as a hypotheca and turned into a garden; likewise, if the agreement was made concerning a plot of land and a house has been built on it; likewise, concerning a plot of land given, and thereafter vineyards planted on it.
§20.1.16.3In uindicatione pignoris quaeritur, an rem, de qua actum est, possideat is cum quo actum est.
In the claim for a pledge, it is asked whether the person against whom the action is brought possesses the thing in question.
nam si non possideat nec dolo fecerit quo minus possideat, absolui debet: si uero possideat et aut pecuniam soluat aut rem restituat, aeque absoluendus est: si uero neutrum horum faciat, condemnatio sequetur.
For if he does not possess it and did not act with malice to avoid possessing it, he ought to be acquitted; but if he does possess it and either pays the money or restores the thing, he is equally to be acquitted; but if he does neither of these, condemnation will follow.
sed si uelit restituere nec possit (forte quod res abest et longe est uel in prouinciis), solet cautionibus res explicari: nam si caueret se restituturum, absoluitur.
But if he wishes to restore it but cannot (perchance because the thing is absent and far away, or in the provinces), the matter is customarily resolved by giving securities; for if he gives security that he will restore it, he is acquitted.
sin uero dolo quidem desiit possidere, summa autem ope nisus non possit rem ipsam restituere, tanti condemnabitur, quanti actor in litem iurauerit, sicut in ceteris in rem actionibus: nam si tanti condemnatus esset, quantum deberetur, quid proderat in rem actio, cum et in personam agendo idem consequeretur?
But if indeed he ceased to possess through malice, and yet despite striving with the utmost effort cannot restore the thing itself, he will be condemned for as much as the plaintiff shall have sworn to in the suit, as in other actions in rem; for if he were condemned for only as much as was owed, what would the action in rem profit, since he would obtain the same by bringing an action in personam?
§20.1.16.4Interdum etiam de fructibus arbitrari debet iudex, ut, ex quo lis inchoata sit, ex eo tempore etiam fructibus condemnet.
Sometimes the judge also ought to make an award concerning the fruits, so that from the time the suit was commenced, he may also condemn for the fruits from that time.
quid enim si minoris sit praedium, quam debetur? nam de antecedentibus fructibus nihil potest pronuntiare, nisi exstent et res non sufficit.
For what if the estate is worth less than what is owed? For concerning the preceding fruits he can pronounce nothing, unless they are still in existence and the property is not sufficient.
§20.1.16.5Creditor hypothecam sibi per sententiam ad iudicatam quemadmodum habiturus sit, quaeritur: nam dominium eius uindicare non potest.
It is asked how a creditor is to hold a hypotheca adjudged to him by a judgment; for he cannot vindicate its ownership.
sed hypothecaria agere potest, et si exceptio obicietur a possessore rei iudicatae, replicet: 'si secundum me iudicatum non est'.
But he can bring a hypothecary action, and if a defense of res judicata is raised by the possessor, he should reply: 'unless it was not judged in my favor'.
§20.1.16.6Si pluris condemnatus sit debitor non restituendo pignus, quam computatio sortis et usurarum faciebat, an, si tantum soluerit, quantum debebat, exoneretur hypotheca? quod ego quantum quidem ad subtilitatem legis et auctoritatem sententiae non probo: semel enim causa transire uidetur ad condemnationem et inde pecunia deberi: sed humanius est non amplius eum, quam quod re uera debet, dando hypothecam liberare.
If the debtor is condemned to pay more for not restoring the pledge than the calculation of principal and interest amounted to, is the hypotheca released if he pays only as much as he owed? As to this, indeed, with respect to the strictness of the law and the authority of the judgment, I do not approve; for once the cause of action seems to pass into a judgment debt and money is owed therefrom; but it is more humane that he should release the hypotheca by giving no more than what he actually owes.
§20.1.16.7Aliena res utiliter potest obligari sub condicione, si debitoris facta fuerit.
Another's property can be effectively bound under the condition, 'if it should become the property of the debtor'.
§20.1.16.8Si duo pariter de hypotheca paciscantur, in quantum quisque obligatam hypothecam habeat, utrum pro quantitate debiti an pro partibus dimidiis, quaeritur.
If two persons contract equally for a hypotheca, it is asked to what extent each has the hypotheca bound to him, whether in proportion to the amount of the debt or for equal halves.
et magis est, ut pro quantitate debiti pignus habeant obligatum.
And it is more correct that they have the pledge bound in proportion to the amount of the debt.
sed uterque, si cum possessore agat, quemadmodum? utrum de parte quisque an de toto, quasi utrique in solidum res obligata sit? quod erit dicendum, si eodem die pignus utrique datum est separatim: sed si simul illi et illi, si hoc actum est, uterque recte in solidum aget, si minus, unusquisque pro parte.
But if both bring an action against the possessor, how? Whether each for a part or for the whole, as if the thing were bound to both for the whole? This must be said if the pledge was given to each separately on the same day; but if to this one and that one at the same time, if this was agreed, each will correctly sue for the whole, but if not, each for his part.
§20.1.16.9Potest ita fieri pignoris datio hypothecaeue, ut, si intra certum tempus non sit soluta pecunia, iure emptoris possideat rem iusto pretio tunc aestimandam: hoc enim casu uidetur quodammodo condicionalis esse uenditio.
A pledge or hypotheca may be given in such a way that, if the money is not paid within a certain time, he may possess the thing by right of a buyer at a fair price to be estimated at that time; for in this case, the sale seems to be in a manner conditional.
et ita diuus Seuerus et Antoninus rescripserunt.
And so the divine Severus and Antoninus wrote in a rescript.