[TRYPHONINUS libro octauo disputationum. ] §20.5.12.prRescriptum est ab imperatore libellos agente Papiniano creditorem a debitore pignus emere posse, quia in dominio manet debitoris.
[TRYPHONINUS from the eighth book of Disputations.] A rescript was issued by the Emperor, when Papinian was in charge of petitions, stating that a creditor can buy a pledge from his debtor, because it remains in the ownership of the debtor.
§20.5.12.1Si aliena res pignori data fuerit et creditor eam uendiderit, uideamus, an pretium quod percepit creditor liberet debitorem personali actione pecuniae creditae.
If the property of another has been given as a pledge and the creditor has sold it, let us see whether the price which the creditor received releases the debtor from the personal action for the money lent.
quod uere responderetur, si ea lege uendidit, ne euictionis nomine obligaretur, quia ex contractu et qualiquali obligatione a debitore interposita certe ex occasione eius redactum id pretium aequius proficeret debitori, quam creditoris lucro cederet.
To this it would be correctly answered that he is released, if he sold it on the condition that he should not be liable on the ground of eviction; because, arising from the contract and whatever kind of obligation interposed by the debtor, the price recovered on that occasion would certainly more equitably benefit the debtor than turn to the profit of the creditor.
sed quantum quidem ad creditorem debitor liberatur: quantum uero ad dominum rei, si necdum pignus euictum est, uel ad emptorem post euictionem ipsi debitor utili actione tenetur, ne ex aliena iactura sibi lucrum adquirat.
But as far as the creditor is concerned, the debtor is indeed released; whereas, as far as the owner of the property is concerned (if the pledge has not yet been evicted), or as far as the buyer is concerned after eviction, the debtor himself is liable to them by a useful action, lest he acquire profit for himself from another's loss.
nam et si maiores fructus forte petens a possessore creditor abstulit, uniuersos in quantitatem debitam accepto ferre debebit: et cum per iniuriam iudicis domino rem, quae debitoris non fuisset, abstulisset creditor quasi obligatam sibi, et quaereretur, an soluto debito restitui eam oporteret debitori, Scaeuola noster restituendam probauit.
For even if the creditor, perhaps claiming greater fruits, has taken them from the possessor, he will be obliged to apply all of them to the amount of the debt. And when, through the error of a judge, the creditor had taken from the owner a thing which had not belonged to the debtor, as if it had been pledged to him, and it was asked whether, upon payment of the debt, it ought to be restored to the debtor, our Scaevola ruled that it must be restored.
quod si non ita uendidit, ut certum sit omnimodo apud eum pretium remansurum, uerum obligatus est ad id restituendum, arbitror interim quidem nihil a debitore peti posse, sed in suspenso haberi liberationem: uerum si actione ex empto conuentus praestitisset creditor emptori, debitum persequi eum a debitore posse, quia apparuit non esse liberatum.
But if he did not sell it on such terms that it is certain that the price will remain with him in any event, but is under an obligation to restore it, I think that in the meantime nothing can be demanded from the debtor, but that the release is held in suspense; but if the creditor, having been sued by the action on purchase, had paid the buyer, he can pursue the debt from the debtor, because it has become apparent that the debtor was not released.