[MARCIANUS libro singulari ad formulam hypothecariam. ] §20.6.5.prSoluitur hypotheca et si ab ea discedatur aut paciscatur creditor, ne pecuniam petat: nisi si quis dicat pactum interpositum esse, ut a persona non petatur.
[MARCIANUS, in his single book on the Formula for a Mortgage.] A mortgage is also released if it is departed from, or if the creditor agrees not to demand the money; unless someone should say that the agreement was interposed so that it should not be demanded from the person.
et quid si hoc actum sit, cum forte alius hypothecam possidebit? sed cum pactum conuentum exceptionem perpetuam pariat, eadem et in hoc casu possunt dici, ut et ab hypotheca discedatur.
And what if this was done when, perchance, another person will possess the mortgage? But since an agreed pact produces a perpetual exception, the same can be said in this case also, so that there is a departure from the mortgage as well.
§20.6.5.1Si paciscatur creditor, ne intra annum pecuniam petat, intellegitur de hypotheca quoque idem pactus esse.
If a creditor agrees not to demand the money within a year, he is understood to have agreed the same concerning the mortgage as well.
§20.6.5.2Si conuenerit, ut pro hypotheca fideiussor daretur, et datus sit, satisfactum uidebitur, ut hypotheca liberetur.
If it has been agreed that a surety should be given instead of the mortgage, and he has been given, satisfaction will seem to have been made, so that the mortgage is released.
aliud est, si ius obligationis uendiderit creditor et pecuniam acceperit: tunc enim manent omnes obligationes integrae, quia pretii loco id accipitur, non solutionis nomine.
It is otherwise if the creditor has sold the right of the obligation and received the money; for then all obligations remain intact, because this is received in place of a price, not by way of payment.
§20.6.5.3Satisfactum esse creditori intellegitur et si iusiurandum delatum datum est hypothecae non esse rem obligatam.
It is understood that satisfaction has been made to the creditor also if, an oath having been tendered, it was sworn that the thing was not bound to a mortgage.