[AFRICANUS libro octauo quaestionum. ] §20.4.9.prQui balneum ex calendis proximis conduxerat, pactus erat, ut homo Eros pignori locatori esset, donec mercedes soluerentur: idem ante calendas Iulias eundem Erotem alii ob pecuniam creditam pignori dedit.
[AFRICANUS, in his eighth book of questions.] A person who had hired a public bath from the next Kalends had agreed that the slave Eros should be a pledge to the landlord until the rent was paid. This same person, before the Calends of July, gave the same Eros as a pledge to another for money lent.
consultus, an aduersus hunc creditorem petentem Erotem locatorem praetor tueri deberet, respondit debere: licet enim eo tempore homo pignori datus esset, quo nondum quicquam pro conductione deberetur, quoniam tamen iam tunc in ea causa Eros esse coepisset, ut inuito locatore ius pignoris in eo solui non posset, potiorem eius causam habendam. plius
Having been consulted whether the praetor ought to protect the landlord against this creditor who was claiming Eros, he answered that he ought to; for although at the time the slave was given as a pledge, nothing was yet owed for the hire, nevertheless, since even then Eros had begun to be in such a legal position that the right of pledge over him could not be dissolved against the landlord's will, the landlord's position must be held to be stronger.
§20.4.9.1etiam sub condicione creditorem tuendum putabat aduersus eum, cui postea quicquam deberi coeperit, si modo non ea condicio sit, quae inuito debitore impleri non possit.
Furthermore, he thought that a creditor under a condition should also be protected against one to whom a debt subsequently began to be owed, provided that the condition is not of such a nature that it cannot be fulfilled against the debtor's will.
§20.4.9.2Sed et si heres ob ea legata, quae sub condicione data erant, de pignore rei suae conuenisset et postea eadem ipsa pignora ob pecuniam creditam pignori dedit ac post condicio legatorum exstitit, hic quoque tuendum eum, cui prius pignus datum esset, existimauit.
But also, if an heir had agreed to the pledging of his own property for legacies given under a condition, and subsequently gave these same pledges to another for money lent, and afterwards the condition of the legacies was fulfilled, he thought that here too the person to whom the pledge was first given should be protected.
§20.4.9.3Titia praedium alienum Titio pignori dedit, post Maeuio: deinde domina eius pignoris facta marito suo in dotem aestimatum dedit.
Titia gave another person's estate as a pledge to Titius, and afterwards to Maevius; subsequently, having become the owner of that pledge, she gave it to her husband as an appraised dowry.
si Titio soluta sit pecunia, non ideo magis Maeuii pignus conualescere placebat.
Even if the money was paid to Titius, it was held that Maevius's pledge did not thereby become any more valid.
tunc enim priore dimisso sequentis confirmatur pignus, cum res in bonis debitoris inueniatur: in proposito autem maritus emptoris loco est: atque ideo, quia neque tunc cum Maeuio obligaretur neque cum Titio solueretur in bonis mulieris fuerit, nullum tempus inueniri, quo pignus Maeuii conualescere possit.
For the pledge of a subsequent creditor is confirmed upon the discharge of the prior one only when the thing is found among the debtor's assets; but in the present case, the husband is in the position of a buyer. And therefore, since the property was neither among the woman's assets when she became obligated to Maevius, nor when the debt was paid to Titius, no time can be found at which Maevius's pledge could become valid.
haec tamen ita, si bona fide in dotem aestimatum praedium maritus accepit, id est si ignorauit Maeuio obligatum esse.
This, however, is so only if the husband accepted the appraised estate as a dowry in good faith, that is, if he did not know that it was pledged to Maevius.