[MARCIANUS libro singulari ad formulam hypothecariam. ] §20.6.8.9Quod si is fundus a Maeuio alicui obligatus possideatur, cui nondum satisfactum erit, tunc rursus aequum erit excipi 'si non uoluntate creditoris ueniit': licet enim dolus malus debitoris interueniat qui non soluit, tamen secundus creditor qui pignori accepit potior est.
But if that land is possessed having been obligated by Maevius to someone, to whom satisfaction has not yet been made, then again it will be equitable that the exception be pleaded, "unless it was sold with the consent of the creditor"; for although the fraud of the debtor who does not pay intervenes, nevertheless the second creditor who received it as a pledge is in a stronger position.
§20.6.8.10Tutius tamen est, si debitor a creditore petat, ut ei permittat pignus uendere, quo magis satisfaciat, ante cautionem accipere ab eo, qui rem empturus erit, ut pretium rei uenditae usque ad summam debiti creditori soluatur.
It is safer, however, if the debtor asks the creditor to permit him to sell the pledge so that he may the better satisfy him, to receive a security beforehand from the person who is about to buy the property, to the effect that the price of the sold property, up to the amount of the debt, shall be paid to the creditor.
§20.6.8.11Uenditionis autem appellationem generaliter accipere debemus, ut et si legare permisit, ualeat quod concessit: quod ita intellegemus, ut, si legatum repudiatum fuerit, conualescat pignus.
Moreover, we ought to interpret the term "sale" broadly, so that even if the creditor permitted the debtor to bequeath the thing, what he conceded is valid; which we shall understand in such a way that, if the legacy is repudiated, the pledge recovers its force.
§20.6.8.12Si debitor uendiderit rem nec tradiderit, an non repellatur creditor, quasi adhuc res in bonis sit debitoris, an uero, cum teneatur ex empto, pignus exstinguatur? quod et magis est.
If the debtor has sold the thing but has not delivered it, is the creditor not repelled, on the ground that the thing is still among the assets of the debtor, or rather, since the debtor is bound by the action on purchase, is the pledge extinguished? The latter is the better opinion.
sed quid si pretium uenditor consecutus non sit nec paratus sit emptor dare? tantundem potest dici.
But what if the seller has not obtained the price, nor is the buyer ready to pay it? The same can be said.
§20.6.8.13Sed si permiserit creditor uendere, debitor uero donauerit, an exceptione illum summoueat? an facti sit magis quaestio, numquid ideo ueniri uoluit, ut pretio accepto ipsi quoque res expediat? quo casu non nocebit consensus.
But if the creditor permitted a sale, but the debtor made a donation, does the recipient bar him by the exception? Or is it rather a question of fact, whether the creditor wished it to be sold for the reason that, once the price was received, the matter would also be settled to his advantage? In that case, the consent will not be prejudicial to him.
quodsi in dotem dederit, uendidisse in hoc casu recte uidetur propter onera matrimonii.
But if the debtor gave it as a dowry, he is rightly deemed in this case to have sold it, because of the burdens of marriage.
in contrarium, si concessit donare et uendiderit debitor, repelletur creditor, nisi si quis dicat ideo concessisse donari, quod amicus erat creditori is cui donabatur.
On the contrary, if the creditor permitted a donation and the debtor sold it, the creditor will be repelled, unless someone should argue that he had permitted the donation for the reason that the recipient of the donation was a friend of the creditor.
§20.6.8.14Quod si concesserit decem uendere, ille quinque uendiderit, dicendum est non esse repellendum creditorem: in contrarium non erit quaerendum, quin recte uendit, si pluris uendiderit, quam concessit creditor.
But if the creditor permitted a sale for ten, and the debtor sold for five, it must be said that the creditor is not to be repelled. On the contrary, there is no question that the debtor sells rightly if he has sold for more than the creditor permitted.
§20.6.8.15Non uidetur autem consensisse creditor, si sciente eo debitor rem uendiderit, cum ideo passus est ueniri, quod sciebat ubique pignus sibi durare.
Moreover, the creditor is not deemed to have consented if the debtor sold the thing with his knowledge, since he tolerated its sale for the reason that he knew his pledge would persist everywhere.
sed si subscripserit forte in tabulis emptionis, consensisse uidetur, nisi manifeste appareat deceptum esse. quod obseruari oportet et si sine scriptis consenserit.
But if he should happen to have signed the purchase tablets, he is deemed to have consented, unless it clearly appears that he was deceived; which must also be observed if he consented without writing.
§20.6.8.16Si debitori concessum sit et heres eius uendiderit, potest facti quaestio esse, quid intellexit creditor.
If permission was granted to the debtor and his heir sold it, it can be a question of fact what the creditor intended.
sed recte uenisse dicendum est: hae enim suptilitates ab iudicibus non admittuntur.
But it must be said that it was sold rightly; for such subtleties are not admitted by judges.
§20.6.8.17Si debitor forte concessa uenditione desierit possidere et nouus possessor uendiderit, an duret pignus, quasi personae permiserit creditor? quod et magis est: nam si nouo possessori, non debitori a quo hypothecam accepit, concessit creditor uendere, dicendum est nocere ei exceptionem.
If the debtor, after permission to sell was granted, should happen to cease to possess and a new possessor sells, does the pledge persist, on the ground that the creditor granted the permission to a specific person? This is the better opinion. For if the creditor permitted the new possessor to sell, and not the debtor from whom he received the hypothec, it must be said that the exception prejudices him.
§20.6.8.18Sed si intra annum aut biennium consenserit creditor uendere, post hoc tempus uendendo non aufert pignus creditori.
But if the creditor consented to a sale within a year or two years, by selling after this time one does not deprive the creditor of the pledge.
§20.6.8.19Si creditor hypothecaria usus a possessore litis aestimationem consecutus fuerit et a debitore petat debitum, puto doli mali exceptionem ei obstaturam.
If the creditor, having employed the hypothecary action, has obtained the valuation of the suit from the possessor, and then sues the debtor for the debt, I think that the exception of fraud will block him.