Pledges and Mortgages

Pledges and mortgages are certain securities for the payment of debts.

At first, they could not be claimed as real rights. Afterwards, the law considered them as such.

Pledges properly regard moveable subjects, and mortgages immoveable. If a pledge be not redeemed at a certain time, it is forfeited.

People in bad circumstances are naturally slothful. The negligence of Romans debtors led to the lex commissaria which empowered the creditor to:

• seize the pledge, and
• return the overplus.

By the English law, if no day be named, the pledge falls to the pawntaker on the death of the pawner. In immoveables, lands are mortgaged but not delivered.

In case of failure, they are forfeited.

The Roman law and ours are much the same on this head.

If payment is not made within some few months after demand, the creditor adjudges the land for the whole sum and the penalty incurred.

But his property is not secure without long possession because the proprietor has a power of redeeming it within a reasonable time.

But upon redemption, there is much trouble in examining old accounts and the like.

The law has made 20 years the stated time in England for redeeming mortgages.

Hypothecs are another kind of pledges really arising from contract.

These are made real rights by the civil law.

By them anciently, the landlord was empowered to detain the tenant’s furniture and stock if he turned bankrupt, and could claim them a quocumque possessore.

This arose from the practice of keeping tenants by steel-bow. In this practice, the whole farming stock was the landlord’s.

At present the landlord has only a right of preference. We do not have so many hypothecs as the Romans had.

All pledges are naturally personal rights, and are only made real by the civil law.