[IDEM libro quinto responsorum. ] §20.3.4.prTitius cum mutuam pecuniam accipere uellet a Maeuio, cauit ei et quasdam res hypothecae nomine dare destinauit: deinde postquam quasdam ex his rebus uendidisset, accepit pecuniam: quaesitum est, an et prius res uenditae creditori tenerentur.
[THE SAME, in his fifth book of Responses.] When Titius wished to receive a mutual loan of money from Maevius, he gave him a security and intended to give certain things by way of hypothecation; then, after he had sold some of these things, he received the money. The question arose whether the things sold beforehand were also bound to the creditor.
respondit, cum in potestate fuerit debitoris post cautionem interpositam pecuniam non accipere, eo tempore pignoris obligationem contractam uideri, quo pecunia numerata est, et ideo inspiciendum, quas res in bonis debitor numeratae pecuniae tempore habuerit.
He replied that, since it was within the power of the debtor not to receive the money after the security had been given, the obligation of pledge is deemed to have been contracted at that time when the money was paid; and therefore it must be inspected what property the debtor had in his assets at the time the money was paid.