CHAPTER XIII - Special Cases (cont.)

Summary

SERVUS PIGNERATICIVS.

The law concerning a pledged slave derives some peculiarities from the fact that, while on the one hand the rights acquired by the pledge creditor are slight (being essentially no more than the right to hold the slave without deriving profit from him), on the other hand the institution is only a praetorian modification of the old fiduciary mancipation, under which the creditor became owner. Many of the texts in the Digest which now speak of pignus were originally written of fiducia, and the compilers have not always succeeded in making the changes so as to produce a neat result.

A pledged slave is still in bonis debitoris, and thus a legacy of my slaves includes those I have pledged, but not those pledged to me. The debtor retains the actio servi corrupti. The pledged slave is treated for the purpose of the Sc. Silanianum in all respects as if he had not been pledged. But there are many respects in which the creditor's interest comes effectively into play.

If the pledge creditor kills the slave, the debtor has the actio Aquilia against him, or, if he prefers, he may bring the action on the contract. If on the other hand the debtor kills the slave, the creditor has not the actio Aquilia, even utilis, but is given an actio in factum. If the slave is killed by a third party, the pledger has the actio Aquilia, and the creditor is allowed an actio utilis, because in view of possible insolvency of the debtor he has an interesse.