Actio Serviana

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The actio Serviana , later also: actio pigneratitia (in rem) ( Latin : pignus = pledge; derived from pangere = to attach) and actio hypothecaria , also known as vindicatio pignoris since the late classical period, was a real praetoric pledge of ancient Roman law .

With it, the lessor of a property was able to both acquire ownership of the property brought in by the lessee for the first time and to sue for a pledge that was later lost. The real effect of the lien is particularly clear from the fact that the lessor could also demand the pledge from third parties. The complaint was created by the republican lawyer Servius Sulpicius Rufus in the 1st century BC. Chr.

The agricultural leasing of land was usually accompanied by pledging agreements, according to which the lessee had to grant the lessor direct authorization to access the property (invecta illata) he brought in . On the other hand, a prohibitive “ interdictum salvanium ” imposed on the tenant not to prevent the lessor from accessing the property, although it is disputed whether the interdict also applied to third parties.

The legislative action was to be distinguished from the actio Publiciana , by means of which property could be protected on the basis of an inheritance . The actio Serviana was later extended to other pledging cases, such as the mortgage . In order to express equality, it was henceforth referred to as actio quasi Serviana (equality clause ). The sources also reproduce other terms such as actio pigneratitia in rem , actio hypothecaria and vindicatio pignoris .

Proprie pignus dicimus, quod ad creditorem transit, hypothecam, cum non transit nec possessio ad creditorem.

" We call pignus in the true sense of the word that which passes to the creditor , we speak of hypotheca when ownership does not pass to the creditor."

- Ulpian : D. 13, 7, 9, 2.

literature

Individual evidence

  1. ↑ Paulus , Digest 12,6,13.
  2. ↑ Max Kaser : Roman legal sources and applied legal method. In: Research on Roman Law. Volume 36. Verlag Böhlau, Vienna, Cologne, Graz, 1986. ISBN 3-205-05001-0 . P. 108 f .; 321 ff. (The “vindicatio pignoris” between “ius civile” and “ius praetorium”).
  3. ^ Heinrich Honsell : Roman law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , p. 78 f.
  4. ↑ Scaevola , Digest 13,7,43 pr .; Paul, Digest 20: 1, 28.
  5. ↑ a b c Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , p. 186.
  6. ↑ The text passage is corrupted, as can be seen from the nec , which occurs only once ; for the necessary interpolation see Gerd Krämer: The non-possessory lien. Developments in the Roman Republic and in the Early Principate . Böhlau, Vienna / Cologne / Weimar 2007, p. 27 f. with note 33.