III. The actio utilis in case of pignus nominis

I Pignus nominis

A veteran who had been called to service again asked emperor Alexander Severus if a nomen, i.e. a claim against a third person, could be pledged, and if so, how such a security was exercised. The imperial chancery responded in the name of the emperor at the 28^th of February in the year 225:

C. 8,16(17),4 (a. 225).

Imp. Alexander A. … evocato. Nomen quoque debitoris pignerari et generaliter et specialiter posse pridem placuit. quare si debitor is satis non facit, cui tu credidisti, ille, cuius nomen tibi pignori datum est, nisi ei cui debuit solvit nondum certior a te de obligatione tua factus, utilibus actionibus satis tibi facere usque ad id, quod tibi deberi a creditore eius probaveris, compelletur, quatenus tamen ipse debet.

Emp. Alexander, to …, a veteran again called to service. A claim can also be pledged both generally and specifically, as was long ago decided. If the debtor to whom you extended credit does not give you satisfaction, the debtor of the claim pledged is compelled – unless he paid his creditor while he was not yet informed by you of your claim – with actiones utiles to give satisfaction to you, up to what you prove is owed to you by his creditor, as far as he himself still is indebted the said amount.

According to this rescriptum, pledge of a claim had been accepted before. It speaks of actiones utiles granted to the pledgee, which he could use to demand performance from the debtor of the claim pledged. If a claim for money was concerned, the pledgee was only able to collect the amount his debtor, i.e. the pledgor, was due under the claim that had been secured by the pledge. The pledgee had to set off the received amount of money against the claim secured by the pledge. He thus took recourse against the proceeds to satisfy the claim secured by the pledge. If the object of the claim pledged was not a sum of money, but a tangible, then the pledgee obtained the tangible pignoris loco, that is to say as a pledge. In that case, pledge of a claim entailed a future right of pledge on a tangible^[1]).

D. 13,7,18pr.

Paulus libro vicensimo nono ad edictum. Si convenerit, ut nomen debitoris mei pignori tibi sit, tuenda est a praetore haec conventio, ut et te in exigenda pecunia et debitorem adversus me, si cum eo experiar, tueatur. ergo si id nomen pecuniarium fuerit, exactam pecuniam tecum pensabis, si vero corporis alicuius, id quod acceperis erit tibi pignoris loco.

Paul, Edict XXIX. Suppose that it is agreed that my claim shall be your pledge. That agreement is to be respected by the praetor in such a way that assistance should be given to you in claiming the money and to my debtor if I should go against him. Thus, if the claim promised money, you will set off its money proceeds to your own claim, and if it promised a tangible of some kind, whatever you get you will hold as a pledge.

Pledge of a claim required a pledge agreement between pledgor and pledgee. Subsequently, notice of the pledge to the debtor led to the debtor being unable to discharge his obligation by paying his creditor, i.e. the pledgor. The pledgee could collect the claim by means of the actio utilis that was given to him by the praetor. In classical Roman law, someone did not ask himself the question whether he had a right, but whether an action was available to bring his case to court. An actio utilis was an analogous action, i.e. an action shaped after the example of an already existing action, called the direct action^[2]). The Roman jurists sometimes even used the expression actio ad exemplum to clarify after the example of which action the actio utilis had been formulated^[3]). The praetor could give an actio utilis if a condition of the existing action was not met. The availability of an actio utilis meant that the new case was treated analogously to the case in which the direct action was available. The analogy with this action ensured that the actio utilis fit the Roman legal system, which was expanded because of the availability of such a new remedy^[4]).

II Pignus nominis: the actio Serviana as actio utilis?

The prevailing doctrine with regard to the actio utilis in case of pignus nominis is that this actio utilis was formulated after the example of the actio Serviana^[5]). The actio Serviana was the action available to the pledgee of a tangible. Kaser believed that the formula of this action was flexible: it did not matter whether a claim had been pledged or a tangible^[6]). According to Lenel, the formula of the actio Serviana read:

Si paret inter Aulum Agerium et Lucium Titium convenisse, ut ea res qua de agitur Aulo Agerio pignori esset propter pecuniam debitam, eamque rem tunc, cum conveniebat, in bonis Lucii Titii fuisse eamque pecuniam neque solutam neque eo nomine satisfactum esse neque per Aulum Agerium stare quo minus sol vatur, nisi ea res arbitrio iudicis restituetur, quanti ea res erit, tantam pecuniam iudex Numerium Negidium Aulo Agerio, condemna, si non paret, absolve^[7]).

If it should appear that Aulus Agerius and Lucius Titius have agreed that the thing which it concerns should serve as a pledge to Aulus Agerius because of a money debt, and that this thing was an asset of Lucius Titius at the moment when the agreement was made, and that this money was neither paid nor given satisfaction for, and that it was not due to Aulus Agerius that it was not paid, then, unless this thing has been returned on the ground of an interlocutory judgement, you, judge, must condemn Numerius Negidius in favour of Aulus Agerius to the value of the thing; if it does not appear so, absolve him.

In Kaser’s view, in case of a pledge of a claim, the praetor supplemented convenisse, ut… with the object that had been pledged^[8]). According to Kaser the rest of the formula corresponded to that of the actio Serviana. He gave some examples, such as the formula of the actio utilis that in his opinion would have been used in case a claim based on a contract of deposit had been pledged^[9]).

Si paret inter Aulum Agerium et Lucium Titium convenisse, ut mensa argentea, quam Lucius Titius apud Numerium Negidium deposuit, Aulo Agerio pignori esset propter pecuniam debitam, eamque pecuniam neque solutam neque eo nomine satisfactum esse neque per Aulum Agerium stare quo minus solvatur, eamque mensam dolo malo Numerii Negidii redditam non esse, quanti ea res erit, tantam pecuniam iudex Numerium Negidium Aulo Agerio, condemna, si non paret, absolve.

If it should appear that Aulus Agerius and Lucius Titius have agreed that a silver table, which Lucius Titius deposited with Numerius Negidius should serve as a pledge to Aulus Agerius because of a money claim, and that this money was neither paid nor given satisfaction for, and that it was not due to Aulus Agerius that it has not been paid, and that this table has not been returned by malice on the part of Numerius Negidius, then you, judge, must condemn Numerius Negidius in favour of Aulus Agerius to the value of the thing; if it does not appear so, absolve him.

Unfortunately, Kaser’s example does not seem to concern the pledge of a claim based on a contract of deposit. Kaser merged the formula of the actio Serviana in such a way with the actio depositi (forumula in factum concepta) that the parties in his example merely agreed to a table, a tangible, to serve as pledge. The formula is therefore about pledge of a tangible, i.e. the table that had been deposited with Numerius Negidius. It does not concern the pledge of a claim and thus it is not a case of pignus nominis. The same is true for other examples given by Kaser, showing that – contrary to his belief – it is not easy to adapt the formula of the Serviana to fit a case of pignus nominis. For instance, Kaser’s formula concerning the pledge of a condictio certae pecuniae is also about pledge of the res debitae instead of pledge of the claim. The parties agreed to the pledge of ten (perhaps aurei): Si paret inter Aulum Agerium et Lucium Titium convenisse, ut decem, quae Numerium Negidium Lucio Titio dare oportet, Aulo Agerio pignori esset propter pecuniam debitam eamque pecuniam …^[10]).

In my opinion, the praetor did not shape the actio utilis of the pledgee after the actio Serviana. Firstly, the object of the actio Serviana was very different from that of the actio utilis in case of pignus nominis. The pledgee of a claim did not institute the actio utilis to obtain possession of the pledged property like the pledgee of a tangible did with the actio Serviana^[11]). The actio utilis could not concern possession of the item pledged, because possession of a claim was impossible in Roman law^[12]). The pledgee brought the actio utilis to collect the claim pledged^[13]). Such a fundamental difference between the object of the direct action, i.e. the Serviana, and the analogous action did not fit the characteristics of the actiones utiles in Roman law. An actio utilis was given to achieve the unachievable: a person who did not meet the conditions of the direct action, could use the actio utilis to get what a person who did meet the conditions of the direct action could by instituting the direct action. The existence of an actio utilis meant a failure to meet the requirements of the direct action no longer stood in the way. For instance, the actiones utiles that were shaped after the actio legis Aquiliae could be used to claim compensation in cases that did not meet the requirements of the Lex Aquilia, e.g. an usufructuary could claim compensation by way of an actio utilis, whereas under the Lex Aquilia only an owner was entitled to an action^[14]). The scope of the statute was thus extended by means of the actiones utiles, that is compensation came within the reach of persons whose case was not covered by the statute itself. The same was, for example, true in case an injury or death was not inflicted by the direct physical action of a defendant, which was a condition of the Lex Aquilia^[15]). Gaius explained that in such a case an actio utilis was to be used to claim compensation, for example if an animal or slave had been starved to death^[16]). Another example that shows that the object of the analogous action was the same as that of the direct action, is the actio utilis granted to an assignee. An assignee used an actio utilis to claim what the assignor could have claimed with the direct action^[17]).

Secondly, the actio Serviana was a real action^[18]). The actio utilis that was given to the pledgee in case of pignus nominis could not be a real action, because the pledgee had no – what we would call – real right: the pledgee did not assert that a thing was his or that he had a real right to any object. On the contrary, the pledgee instituted the action against the debtor of the claim that had been pledged to him because the debtor was under an obligation to give something, to do something, or to perform some service on the basis of the claim that had been pledged. The actio utilis must therefore have been a personal action^[19]). In fact, not even the pledgor himself had a real action against the debtor at his disposal. All he had was a personal action and therefore all the pledgee could have was a personal action. Papinian’s warning applies in full here: Non plus habere creditor potest, quam habet qui pignus dedit^[20]). Besides, the pledgee did not need a real action, because this actio utilis allowed him to do just what he wanted, namely to realize his security.

Because of the personal nature of the actio utilis in case of pignus nominis, it is not surprising that the formula of this actio utilis does not fit into the pattern of the real actions, like the actio Serviana. In contrast to the pledgee of a claim, a pledgee of a tangible had the real actio Serviana, which they could bring against anyone who possessed the pledged thing. The formula of the actio Serviana showed its real character. The intentio, for instance, lacked the name of the defendant and the action contained the clausula arbitraria which lead to an acquittal if the tangible pledged was handed over to the pledgee in the course of the procedure. Moreover, the pledgee of a tangible could bring the action against any possessor of the thing pledged. The actio Serviana was thus very different from the actio utilis in case of pignus nominis. For one thing, this actio utilis could not contain the clausula arbitraria, because it did not concern the handing over of a tangible, but the rendering of a performance^[21]). Moreover, it was unthinkable that the defendant was not named until the condemnatio, as in the real actio Serviana: the claim pledged had to be specified before the condemnatio and this required naming the creditor and the debtor. Furthermore, the condemnatio of the actio Serviana would have been very different from that of the actio utilis. The judge would condemn the defendant in the Serviana to the value of the pledged tangible^[22]). Such a condemnation was appropriate to a real action. By contrast, the actio utilis was designed to render performance from the debtor of the claim pledged. If this claim concerned payment of an amount of money, the judge would condemn the defendant to paying the money. If it concerned giving or doing something, the judge valued this performance at an amount of money, because all condemnations in Roman law were condemnations to paying an amount of money^[23]). Finally, the other remedies which the pledgee had at his disposal differed from those pertinent to the real actio Serviana. The pledgee of a claim could not, for instance, bring the actio ad exhibendum^[24]).

According to Kaser, the praetor adapted the actio Serviana in such a way that in the case of pignus nominis, the pledgee was given a personal actio Serviana^[25]). However, I do not know any analogous action that differed from the direct action in such a way that it changed from a real to a personal action. Kaser asserted to know such a case, namely the action of a lower-ranking pledgee who claimed the superfluum from a higher-ranking pledgee. The superfluum was what remained after the higher-ranking pledgee had sold the pledged property and set off the proceeds of the sale against the claim that had been secured by the pledge. The lower-ranking pledgee should get the surplus^[26]). Kaser argued that the lower-ranking pledgee had the actio Serviana utilis and in personam to claim the superfluum^[27]).

The gloss already asked the question which action the lower-ranking pledgee had to claim the superfluum^[28]). Different answers were given to this question over the centuries^[29]). In my view, the lower-ranking pledgee was given an action that was shaped after the action the pledgor would otherwise have had to claim the surplus, that is the actio pigneraticia directa. The lower-ranking pledgee, it seems, replaced the pledgor who would have received the surplus if the property had not been pledged a second time^[30]). That the pledgor would have had the pigneraticia to claim the superfluum is clear from a constitution by emperor Diocletian: his chancery answered in 294 a certain Sabinus, who had asked through which action the surplus could be obtained, that it was through the pigneraticia^[31]). The emperor emphasized that this was a personal action. In case of a property that had been pledged multiple times, a lower-ranking pledgee needed the pigneraticia to claim the superfluum instead of the pledgor. The lower-ranking pledgee could not have the actio pigneraticia itself, because there was no pledge agreement between both pledgees. However, the praetor could grant him this action utilis^[32]).

I believe the lower-ranking pledgee used the actio pigneraticia utilis to claim the superfluum and not the actio Serviana utilis, which Kaser proposed, because a constitution of Emperor Alexander Severus shows that the lower-ranking pledgee no longer had the actio Serviana after the sale by the higher-ranking pledgee^[33]). This remark would have been futile, if the actio Serviana was given as actio utilis to demand payment of the superfluum. Moreover, it was not this real action that was used to claim the superfluum, but the personal actio pigneraticia. After all, the possibility to claim the superfluum was based on the pledge agreement, not on a real right. Furthermore, the actio Serviana did not suit the need of the lower-ranking pledgee, because it aimed at acquiring possession of the pledged property^[34]). The pledge was extinguished by the sale and all that was left for the lower-ranking pledgee was a claim to receive the superfluum. Besides, the lower-ranking pledgee needed an action that would result not only in being paid the superfluum, but also, for example, enable him to hold the higher-ranking pledgee accountable, for instance if he had sold the pledged property for a price too low. If there had been no lower-ranking pledgee, this problem would have been the pledgor’s, who would have been able to sue the pledgee with the actio pigneraticia directa after the foreclosure sale. The pigneraticia was also the action the lower-ranking pledgee would have had if the superfluum had been paid to the pledgor by the higher-ranking pledgee, for example because the higher-ranking pledgee did not know the property had been pledged another time^[35]). If the pledgor had received the superfluum instead, the lower-ranking pledgee could claim it by instituting the actio pigneraticia contraria^[36]).

All in all, I believe that Kaser wrongly used the example of the lower-ranking pledgee claiming the superfluum to support his theory that the actio Serviana could be a personal action if it was given utilis, because it seems unlikely that the lower-ranking pledgee was given the actio Serviana as actio utilis to claim the surplus. The actio utilis that would have been given to the lower-ranking pledgee is therefore not a case in which a real action was changed into a personal action if it was given as actio utilis. Because of the vast differences with the Serviana that I discussed before, I do not think that the praetor shaped the actio utilis in case of pignus nominis after the Serviana. I think the praetor had another action at his disposal to change into an actio utilis which suited the case of pignus nominis better.

III Pignus nominis: the actio directa as actio utilis

I am of the opinion that the actio utilis of the pledgee to whom a claim had been pledged was shaped after the action that the pledgor would have had against his debtor if he himself collected the claim in his capacity as creditor^[37]). I believe the praetor took the formula of this action and adapted it to suit the pledge agreement. For instance, if a stipulatio concerning an incertum had been pledged, the praetor adapted the actio ex stipulatu in order to enable the pledgee to enforce performance from the debtor^[38]). Likewise, the pledgee would be granted the actio venditi or the actio empti in an adapted form if the claim pledged was based on an agreement of sale.

The advantage of an actio utilis shaped this way would have been that the formula of the actio given to the pledgee contained the same clauses as the action the pledgor would have had in his capacity as creditor against the debtor of the claim pledged. These clauses were present in the formula of the specific action. For example, the actio ex stipulatu contained the proviso that the claim was due^[39]). Kaser’s reconstruction of the formula of the actio utilis in a case where a claim based on a stipulation had been pledged lacked this clause^[40]). Another example is the clausula bonae fidei. It would have been important that the provisions in the formula of the direct action were present in the actio utilis, because it ought not to have made a difference to the debtor whether the claim was collected by his creditor, i.e. the pledgor, or by the pledgee.

The praetor could adapt the direct action by a technique which he used more often in actiones utiles: he would replace a party that featured in the direct action with the person in whose interest the actio utilis had been given. In German, this is called Subjektumstellung^[41]). The praetor used this technique, for example, in the actio Rutiliana, which served to enable someone who had purchased the estate of a bankrupt debtor, the bonorum emptor, to bring actions pertaining to the estate. Gaius explained that the bonorum emptor was given actiones utiles: he derived the intentio from the person whose estate he bought, whereas the condemnatio was in favour of the bonorum emptor, meaning that the defendant had to pay the bonorum emptor what he owed the person whose estate had been sold e.g. on the basis of a contract^[42]).

The praetor used the same technique to formulate an action that could be used against a person who was not liable under the direct action, in other words, an action to successfully claim performance from a person other than the debtor in the direct action. The person who was under an obligation to pay and who would have been condemned to pay if the applicant had sued using the direct action was exchanged for another in the condemnatio of the actio utilis^[43]). Cases in which this change took place are the actio institoria and the actio exercitoria^[44]). Both actions are known as actiones adiecticiae qualitatis, because these actions did not create a new obligation or a new claim, but made it possible to obtain payment of a claim from someone who had appointed the debtor to a specific position^[45]). The actio exercitoria made it possible for a person who had a claim against a ship’s captain to litigate against the owner of the ship^[46]). The actio institoria could be brought by a person who had entered into a contract with a manager against the person who had appointed the manager, e.g. the owner of a business. The manager was liable, but the owner could be sued directly by the actio institoria^[47]). The praetor adjusted the formula of the direct action in such a way that the owner was condemned, if the plaintiff could prove his case. The intentio contained both the name of the manager and that of his boss in the case of an actio institoria, because it encompassed the appointment of the manager^[48]).

Lenel reconstructed the formula of the actio institoria in case of a contract of sale between a manager and a plaintiff^[49]). In his example the manager ran an inn and had sold olive oil to the plaintiff, who could institute the actio institoria ex empto:

Quod Aulus Agerius de Lucio Titio, cum is a Numerio Negidio tabernae instructae praepositus esset, eius rei nomine decem pondo olei emit, qua de re agitur, quidquid ob eam rem Lucium Titium Aulo Augerio dare facere oportet ex fide bona, eius iudex Numerium Negidium Aulo Agerio condemnato si non paret absolvito^[50]).

As for the alleged fact that Aulus Agerius has purchased from Lucius Titius, who has been placed in charge of an inn by Numerius Negidius, ten pounds of olive oil, which is the case here concerned, the judge must condemn Numerius Negidius in favour of Aulus Agerius to anything that Lucius Titius ought to give or do to Aulus Agerius because of this matter in accordance with good faith; if it does not appear so, absolve him.

A comparison between the formula of the actio institoria ex empto and the formula of the actio empti shows that they are almost identical^[51]). In fact, they are so identical that Ulpian felt justified to simply speak of liability on the basis of the actio empti^[52]). Lenel reconstructed the aforementioned formula of the actio institoria by putting himself in the position of the praetor. Regarding a Digest fragment in which the institor was a slave, he wrote:

“Er will den dominus aus den Geschäften des institor haftbar machen, so haftbar machen, wie der institor selbst haftbar ist oder sein würde, wenn er kein Sklave wäre. War es nicht das nächste und natürlichste, daβ er an der aus diesen Geschäften abflieβenden Formel nur so viel änderte, als sein Zweck es erforderte, daβ er, soweit irgend möglich, es vermied, aus den mit so überlegter Feinheit konstruierten Formelgebäuden, an deren Interpretation sich das gesamte Kontraktsrecht anlehnte, wesentliche Bausteine herauszunehmen? Wurde er nicht mit zwingender Notwendigkeit auf unser Schema hingedrängt, das den Judex unter Benutzung der für den betreffenden Fall gegebenen Formelworte anweist, zu untersuchen, was der institor schulde oder schulden würde, und darauf dann den dominus zu kondemnieren?”^[53]).

Lenel emphasized the consistency of the legal system. Formulating one specific actio institoria could endanger this consistency. The actio institoria had to contain the same clauses as the action the plaintiff would otherwise have had against the manager because an actio institoria did not change the clauses of the action, it only enabled the plaintiff to sue the owner, instead of the manager. The praetor could achieve this by merely adapting the action the plaintiff would otherwise have had against the manager. This solution ensured the consistency of the legal system: the action and thus its interpretation remained where it belonged in the “mit so überlegter Feinheit konstruierten Formelgebäuden”^[54]).

In my opinion, the praetor could apply the same technique in formulating the actio utilis in case of pignus nominis, because the condemnation was in favour of a different party from the creditor mentioned in the intentio. I will explain why it seems less probable that the praetor would have used a different technique instead, such as inserting a fiction in the formula. The praetor used a fiction in various other actiones utiles, which are therefore known as actiones ficticiae^[55]). Such an action might direct the judge to base his verdict on the fiction as if one of the parties involved were a Roman citizen^[56]). Another example is the actio Publiciana which contains the fiction that a prescription period had expired, therefore enabling a possessor to claim a thing as if he already were the owner^[57]). However, a fiction in the actio utilis in case of pignus nominis, was impossible, because a fiction did not allow the plaintiff to provide proof of the actual relation between the parties if this was what was feigned to be existing already. The praetor could not assume in the formula that the pledgee was the creditor or heir of the creditor and simultaneously demand proof of e.g. the pledge agreement in the formula. Consider, for example, a fiction that would have told the judge to treat the pledgee as if he were the creditor, or heir of the creditor. The praetor could only assume that the pledgee was the creditor, or heir of the creditor, if the pledgee had already proven his position, i.e. if he had provided evidence of both the pledge and his claim that was secured by the pledge. This would not have happened in iure, because the praetor examined the plaintiff’s claim only to a limited extent. He denied the plaintiff the action if it was unquestionably clear that the claim was unfounded, for example because he was aware that the plaintiff intentionally misrepresented the facts^[58]). The formula of the actio utilis therefore had to indicate the evidence had to be presented to the private judge during the second stage of the proceedings, apud iudicem, e.g. his position as creditor and the pledge agreement. The praetor would have worded the formula in such a way that proof of, for example, the pledge had to be given apud iudicem. Kaser rightly wrote:

“Wollte man das Element der Verpfändung als Voraussetzung der Kondemnation nicht in die Formel aufnehmen, dann hätte auch hier der Prätor in iure von Amtswegen das wirksame Pfandverhältnis nachprüfen und die Erteilung der actio utilis von dem Ergebnis dieser Prüfung abhängig machen müssen. Eine solche prätorische Untersuchung, die häufig nicht anders als beim Erbschafts- oder Forderungskauf eine genaue und umständliche Beweisprüfung forderte, wäre aber über die regelmässige Funktion des Prätors hinausgegangen“^[59]).

A fiction that assumed the claimant was a creditor, or heir of the creditor would not fit in such a formula, because it would be contradictory to feign the claimant’s position on the one hand, whilst on the other hand demand proof of this position. The fictions that were used in the formulae ficticiae we know of did not obstruct the formulae encompassing the factual evidence that had to be provided apud iudicem. For example, the fiction that one of the parties was a Roman citizen only enabled that person to litigate under Roman law. It did not assume that the claimant was e.g. a creditor. The fiction that one of the parties was a Roman citizen did not concern the facts of the case at hand and therefore did not prevent the formula describing the necessary facts to be given as evidence. Likewise, the fiction encompassed in the actio Publiciana did not stop the plaintiff from proving his position. The fiction only concerned the expiration of the period that led to acquisitive prescription^[60]). The formula ficticia brought by the bonorum emptor assumed the purchaser was the heir^[61]). The assumption that the bonorum emptor was the heir, was justified by the fact that the praetor did not need proof of his position because it was the praetor himself who had appointed the bonorum emptor^[62]). The praetor presumably used this fiction, if the bankrupt had died: if the bankrupt was still alive, the praetor most probably used the aforementioned actio Rutiliana^[63]).

Proof of a number of elements would have been essential if the pledgee wished to claim performance from the debtor of the claim pledged. Firstly, the pledgee had to prove the existence of the claim pledged, like the creditor would have had to proof the existence of the claim if he had sued the debtor himself. Secondly, the pledgee had to give evidence of the pignus nominis, i.e. that the claim had been pledged to him. Thirdly, the pledgee had to demonstrate a number of aspects with regard to the claim that had been secured by the pignus nominis. The pledgee was only allowed to exercise his pledge if this claim had not been paid, nor that satisfaction had been given in another way^[64]). Moreover, I think the pledgee was not allowed to be in default, as was also required by the actio Serviana in case a tangible had been pledged^[65]).

Bearing these elements in mind, I will reconstruct the formula of the actio utilis using the terminology found in our sources. In case of pignus nominis, they speak of a pledge of the nomen debitoris. For instance, the constitution of Alexander Severus began with the words: Nomen quoque debitoris pignerari, and Paul said: Si convenerit, ut nomen debitoris mei pignori tibi sit^[66]).

I will reconstruct the formula of the actio utilis that would have been awarded to the pledgee in the following imaginary case. Titius had sold a slave to Numerius. Titius had not yet been paid, in other words: he had a claim against Numerius for payment of the purchase price of the slave, i.e. ten thousand sesterces. Titius then borrowed nine thousand sesterces from Aulus. Titius and Aulus agreed that Titius’s claim against Numerius was pledged to Aulus to secure Aulus’s claim. When Titius failed to fulfill his obligation to Aulus, Aulus wanted to collect the claim that had been pledged to him. He went to the praetor to get the appropriate action against Numerius. The praetor would have given him an actio utilis that enabled him to collect payment of the purchase price that Numerius owed Titius.

In my opinion, the formula of this actio utilis, i.e. in case a claim from a contract of sale, emptio venditio, had been pledged, would have been:

X iudex esto.

Si paret Titium Numerio Negidio mensam argenteam sestertiorum x milia vendidisse et inter Aulum Agerium et Titium convenisse, ut id nomen Aulo Agerio pignori esset ob ix milia sestertiorum debita Aulo Agerio a Titio eaque ix milia neque soluta neque eo nomine satisfactum esse neque per Aulum Agerium stare quo minus solvatur, quidquid Numerius Negidius Titio dare facere oportet ex fide bona, usque ad id, quod Aulo Agerio a Titio debeatur, iudex, Numerium Negidium Aulo Agerio condemna, si non paret, absolve.

X be judge.

If it should appear that Titius sold a silver table to Numerius Negidius for the price of ten thousand sesterces and that Aulus Agerius and Titius have agreed that this claim of Titius would serve Aulus Agerius as a pledge, because of nine thousand sesterces owed by Titius to Aulus Agerius, and that this nine thousand have not been paid, nor given satisfaction for, and that it is not Aulus Agerius’s fault that payment has not been made, then you, judge, must condemn Numerius Negidius in favour of Aulus Agerius to anything that Numerius Negidius ought to give or do to Titius in accordance with good faith up to the amount Titius owes Aulus Agerius; If it does not appear so, absolve him.

The core of this reconstruction is the formula of the actio venditi. The formula of this action was:

Quod Aulus Agerius Numerio Negidio hominem qua de re agitur vendidit, quidquid ob eam rem Numerium Negidium Aulo Agerio dare facere oportet ex fide bona, eius iudex Numerium Negidium Aulo Agerio condemna, si non paret, absolve^[67]).

As for the alleged fact that Aulus Agerius has sold the slave here concerned to Numerius Negidius: you, judge, must condemn Numerius Negidius in favour of Aulus Agerius to anything that Numerius Negidius ought to give or do to Aulus Agerius because of this matter in accordance with good faith; if it does not appear so, absolve him.

I have adapted this formula using the same technique as the praetor used in e.g. the actio Rutiliana and the actio institoria. Like in those cases, I think the praetor changed the direct action in such a way that the person in favour of whom the judge had to condemn the defendant was not the same as the person who appeared in the intentio. The condemnatio was in the name of the pledgee.

I then completed the formula by adding a few elements that follow from the constitution of Alexander Severus, C. 8,16(17),4: the pledgee was told that the debtor of the claim that had been pledged to him was compelled with actiones utiles to give satisfaction usque ad id, quod tibi deberi a creditore eius probaveris^[68]). Thus, according to this constitution, the pledgee had to prove what was owed to him on the basis of the debt that had been secured by the pledge and he could only collect the claim that had been pledged to him up to the amount his debtor, i.e. the pledgor, owed him^[69]). I have wondered why the pledgee was not allowed to collect more than was owed to him by the pledgor, because the claim that had been pledged to him had been pledged in its entirety. Moreover, the debtor of the claim that had been pledged would have had to make more effort to pay his debt in full if the debtor of the claim that had been pledged owed a higher amount to the pledgor than the pledgor owed to the pledgee: in that case, the debtor first had to pay the pledgee up to the amount that the pledgor owed the pledgee and then he had to pay the rest of his debt to his creditor, i.e. the pledgor. However, the advantage of this limitation would have been that the pledgee did not receive more than he was entitled to. It was not in the interest of the pledgor to allow the pledgee to collect the entire claim, because if that were the case, the pledgor would have to obtain the surplus from the pledgee, which could proof to be impossible, for instance, if the pledgee went bankrupt. The praetor protected the pledgor against this risk by allowing the pledgee to collect the claim that had been pledged only up to the amount that the pledgor owed him^[70]). The aforementioned constitution of Diocletian thus shows that the actio utilis did not only take the interests of the pledgee into account: the interests of the pledgor were secured by demanding proof not only of the pledge, but also by limiting the amount that the pledgee could collect to the amount that his debtor, i.e. the pledgor, owed him on the basis of the claim that had been secured by the pledge^[71]).

Regarding the elements the formula thus had to contain with regards to the claim that had been secured by the pledge, the praetor could easily draw a parallel between pledge of a claim and pledge of a tangible, given the fact that the actio utilis required proof that the claim secured by the pledge had not been paid, like in case of the actio Serviana. The praetor could therefore copy this condition from the Serviana, probably even adding that no satisfaction had been given otherwise and that the pledgee was not in default in relation to his debtor, i.e. the pledgor. In contrast to Kaser’s formula, the resemblance of my reconstruction to the actio Serviana ends here, thus avoiding the problems Kaser’s formulae posed. Like I explained, I think the praetor did not use the Serviana, but the direct action that the pledgor would have had against his debtor as his starting point and adapted that. The personal nature of the direct action suited the actio utilis as opposed to the real nature of the Serviana. Moreover, using the direct action ensured that the clauses of the action were contained in the actio utilis if the pledgee collected the claim, instead of the creditor who had pledged his claim. The technique that I used in my reconstruction did not only fit the modus operandi of the praetor in other actiones utiles, but it also guaranteed that the actio utilis fit the legal system and it assured its consistency.

IV Pignus nominis and assignment

The actio utilis given in case of pignus nominis fitted the system in yet another way. There were other cases where the praetor used actiones utiles to give effect to an agreement intending that a claim that was due to one party could be collected by another if certain conditions were met. The praetor did not only protect such an agreement in case of pignus nominis, but also in cases that we would refer to as assignment in modern day law. In Roman law, claims could not be transferred like tangibles could^[72]). Gaius suggested novation: a creditor could order his debtor to bind himself to the assignee by way of a stipulatio^[73]). In case of novation, there was no transfer of the claim: the old obligation was extinguished and a new obligation arose, which enabled the assignee to successfully sue the debtor in his own name. Instead, an assignor could grant a mandate appointing the assignee as procurator in rem suam in order to enable him to collect the claim. Such a mandate made the assignee a representative of the assignor, as the assignee claimed in the name of the assignor^[74]). This did not always provide a solution, which led the praetor to give an actio utilis to the assignee to collect the assigned claim in a number of cases. The assignee could bring the actio utilis in his own name. The first time the praetor granted such an action was triggered by the senatusconsultum Trebellianum, dated 56 or 57 AD^[75]). He gave it to someone to whom a deceased’s estate, had to be conveyed on the basis of a fideicommissum. After this, actiones utiles were granted in more cases of assignment^[76]). For instance, a purchaser of a claim could bring an actio utilis to sue the debtor of the assigned claim for payment^[77]).

An important difference with our modern-day assignment is that under the Roman ius civile the assignor kept his position: He was not replaced by the assignee in the obligation as is the case in modern law. The obligation between the assignor and the debtor continued to exist, thus the action of the assignor was not transferred to the assignee: the assignor still had the direct action at his disposal^[78]). He remained the creditor under the ius civile, but the praetor ensured that the debtor could not discharge his obligation by paying the assignor if the debtor had been notified of the assignment^[79]). The debtor was given an exception, which he could use against the assignor^[80]). If he did not use this exception, but knowingly paid the assignor, then this payment did not discharge the debtor vis-à-vis the assignee^[81]). Simultaneously, the praetor gave the assignee an actio utilis. He became the creditor under the ius honorarium as the praetor ensured through procedural means that he received the proceeds of the assigned claim.

To a certain extent, the same happened in case of pignus nominis. The emperor Diocletian wrote the following to one Manasea concerning a case in which a cautio, i.e. a bond, had been pledged^[82]). To pledge a cautio was to pledge a claim, of which the written declaration served as evidence^[83]).

C. 4,39,7 [date unknown]

Impp. Diocletianus et Maximianus AA. Manaseae. Postquam eo decursum est, ut cautiones quoque debitorum pignori darentur, ordinarium visum est, ut post nominis venditionem utiles emptori, sic (ut responsum est) vel ipsi creditori postulanti dandas actiones^[84]).

The emperors Diocletian and Maximian, Augusti, to Manasea. After it was settled that bonds of debts could be pledged too, it is considered a normal rule that, just like after the sale of a claim, actiones utiles will be granted to the creditor, if he so demands (as has already been decided).

Pledge of a claim had partly the same legal effects as assignment in Roman law. Like in the event of assignment, the pledgor remained the creditor under the ius civile, but the praetor gave an actio utilis to someone other than the creditor under the ius civile to claim performance to give effect to an agreement intending that a claim that was due to one party could be collected by another if certain conditions were met. Like the assignee, the pledgee obtained an independent position vis-à-vis the debtor of the claim pledged thanks to the actio utilis. For example, once the debtor had been given notice of the pledge, he could only discharge his obligation by paying the pledgee. In this respect, the actio utilis, which the praetor granted the pledgee, led to a creditor under the ius honorarium alongside the creditor under the ius civile. The pledgor remained creditor under the ius civile, but the ius honorarium ensured that the debtor could only discharge his obligation by paying the pledgee.

However, pledge of a claim was not the same as assignment, if only because the intention of the parties to the pledge agreement was not to transfer the claim. Parties solely agreed to create a security interest. The economic purpose of the pledge agreement, i.e. the intention of the parties was taken into account by the praetor. The pledgee could, for example, only collect the claim that had been pledged to him up to the amount the pledgor owed him under the claim that had been secured by the pledge^[85]). Moreover, the proceeds did not become the property of the pledgee, as was the case with assignment. If a money claim was concerned, the pledgee had to set off the collected amount with the claim, that had been secured by the pledge. If the object of the claim that had been pledged was not a sum of money, but a tangible, then the pledgee obtained the tangible by way of pledge^[86]). The pledgee thus did not take the place of the creditor to the same extent as the assignee took his place. The powers of the pledgee were limited by the nature of the pledge. He was only, as Dernburg wrote, “Pfandgläubiger”, i.e. pledge creditor^[87]).

The actions and exceptions awarded by the praetor determined the relation between the parties to the pledge agreement and the debtor of the claim that had been pledged. The ius honorarium was a flexible instrument that gave the praetor the opportunity to award the pledgee only the powers that were necessary to give effect to the pledge agreement. The praetor understood the economic purpose of the pledge agreement and shaped the legal remedies accordingly. He thereby used a technique that ensured that the actio utilis fit the system. In our modern legal terminology, we would say that the praetor created a security right using the procedural approach that is so characteristic of the Roman legal system.