IUS DISTRAHENDI ET LEX COMMISSORIA IN ROMAN LAW OF PLEDGE
IUS DISTRAHENDI ET LEX COMMISSORIA IN ROMAN LAW OF PLEDGE

Summary/Abstract: The article deals with the two different situations regulated by the Roman law in case the pledged res was not returned to the debtor because he had not fulfilled the obligation assumed. Along with the lex commissoria, another mean of ensuring direct satisfaction of the creditor upon the maturity of the unpaid debt was the distractio pignorum, whose regime had undergone a progressive historical evolution from the pactum of sale to the tacit ius distrahendi. The author concludes that it is not possible to confirm with certainty whether the lex commissoria or the ius distrahendi came into use first in Roman law but he considers on the base of the analysis of the sources that most probably lex commissoria was older. Regarding the pledge contracts, the difficulty was great because the creditor only had possession or the right to possession of the pledged thing, of which the debtor remained the owner in all respects, and consequently, the alienation of the pledge would had conflicted with the general principle. On the other hand lex commissoria was a forfeiture clause that pledge agreements frequently contained in the late Republic and early Principate. In the article are examined the two species of lex commissoria – transfer of sold property under the resolutive condition of non payment of the price and the transfer of ownership of pledged property under the suspensive condition.

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