1Marcianus, On the Hypothecary Formula. A ward cannot hypothecate property without the authority of his guardian. 1Where a son under paternal control, or a slave, encumbers property belonging to his peculium for another person, it must be said that the property is not liable even though he may have the free management of his peculium, just as such persons are not allowed to give away their peculium; for neither of them has unrestricted management of his property. This, however, involves a question of fact, as to how far each of them seems to have been permitted to manage his peculium. 2The Divine Pius stated in a Rescript addressed to Claudius Saturninus, that any property which a party cannot purchase because it is not an object of commerce, cannot be taken in pledge. But what if any one should receive by way of pledge land, the title to which is in litigation, would he be barred by an exception? Octavenus was of the opinion that an exception would be available even in a case of pledge. Scævola says, in the Third Book of Various Questions, that this is the method of procedure, as an exception is available wherever the property, the title to which is in dispute, is movable.

2Gaius, On the Hypothecary Formula. If anyone hypothecates property in behalf of a woman who has become surety for another, or in behalf of a son subject to paternal control to whom money has been lent in violation of the Decree of the Senate, the question arises, is he entitled to relief? In the case where he encumbered his own property for the woman, it can readily be said that he is entitled to relief, just as an exception is granted to the surety of such a woman. Where, however, the party hypothecated his property in behalf of a son under paternal control, the same rules must be laid down which apply to the surety of a son under such circumstances.

3Ad Dig. 20,3,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 233b, Noten 4, 10.Paulus, Questions, Book III. Aristo wrote to Neratius Priscus that even where a contract was made with a party to whom money was loaned to be paid to another on behalf of the creditor, he would not succeed to the right of pledge, unless he expressly agreed that the same property should be encumbered to him; for the second creditor should not succeed to the rights of the first, who himself made no agreement with reference to a pledge; and, in this instance, the position of the purchaser becomes preferable. Finally, if the first creditor contracted with the debtor with reference to the sale of the pledge, and the second one neglected to secure the same privilege of sale, not through forgetfulness, but because it was understood that the pledge could not be sold; let us see if the right of the first creditor will pass to the second so as to permit him to sell the pledge. I think that this should be admitted, for it often happens that a person can claim by means of a third party something to which he is not personally entitled.

4The Same, Opinions, Book V. Titius, when he was about to borrow money from Mævius, executed an undertaking and indicated certain property to be given by way of pledge, and then, after he had sold some of the said property, he received the money. The question arose whether the property sold was liable to the creditor? The answer was that, since it was in the power of the debtor, after security had been given, not to receive the money, the obligation appeared to have been contracted with reference to the pledge at the time when the money was paid; and therefore the property which the debtor had in his possession when the money was paid should be taken into account.

5The Same, Sentences, Book V. A creditor who knowingly accepts a son under parental control as a pledge from his father shall be sentenced to relegation.