Gaius, On the Hypothecary Formula. Hypothecation is contracted by means of an informal agreement, where a party consents that his property shall be encumbered under a mortgage on account of some obligation. It does not matter in what terms the agreement is stated, as is the case in obligations contracted by the consent of the parties; and hence, if it is agreed without an instrument in writing that property shall be hypothecated, and this can be proved, the property will be bound to the extent of the agreement. Documents are drawn up with reference to these matters to enable the intention of the parties to be the more easily established, and what was agreed to is valid without them if it can be proved, just as a marriage is valid although there may be no written evidence of the same.

Gaius, On the Hypothecary Formula. Ad Dig. 20,1,15 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 230, Note 10.Property which is not yet in existence but which will come into existence hereafter, can be hypothecated, as for instance, fruits on the trees, the offspring of a female slave, the increase of flocks, and other things which may be produced, are subject to hypothecation. The same rule should be observed whether the owner of land makes an agreement either with reference to the usufruct of the same, or concerning anything which may come into existence thereon, or whether he who has the usufruct does so; as Julianus stated. 1When it is stated that the creditor must prove that the article in question was included in the effects of the debtor when the contract was made, this refers to an agreement expressly entered into, and not to the one which it is usual to insert into undertakings every day; namely, that where certain property has been specifically hypothecated, whatever else now remains in possession of the debtor, or whatever he may hereafter acquire, shall be liable; just as if the said property had been explicitly encumbered. 2Where parties who have already encumbered their property also bind themselves to a second creditor, in order that the risk may be avoided which those are accustomed to run who hypothecate the same thing several times, it is usual for them to provide that the property is hypothecated to no one else except Lucius Titius, for instance; and that it is liable to such an extent that the encumbrance will exceed the prior obligation, so that it will be pledged to the amount of the excess, or for the entire amount, when the property is released from the lien for the first debt. In this instance, it should be considered whether the property is thus encumbered if such an agreement has been made, or whether it has been simply agreed that only the surplus shall be subject to hypothecation. It is presumed that the entire property is included in the agreement after it has been released by the first creditor. Is there not still a portion of the same encumbered? The opinion which we have first stated is the better one.

Gaius, 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.

Gaius, On the Hypothecary Formula. In the case of a pledge, the creditor who first lent the money and accepted the hypothecation, is to be preferred; even though the debtor had previously agreed with another that if he borrowed money from him the same property should be bound, even if he subsequently did receive the money from him; for notwithstanding he had previously agreed to do so, he was not obliged to take the money. 1Ad Dig. 20,4,11,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 91, Note 1.Let us see whether the same principle applies where a stipulation is made under a condition, and a mortgage executed; and, while the transaction was pending, another creditor made a loan absolutely, and received the same hypothecated property as security; and then, if the condition of the first stipulation should be fulfilled, will the creditor who afterwards lent money be entitled to the preference? I fear, however, that another view must be taken in this instance; for, when the condition has once been complied with, the result will be that it will have the same effect as if no condition was prescribed at the time the stipulation was entered into. This is the better opinion. 2Ad Dig. 20,4,11,2ROHGE, Bd. 6 (1872), S. 281: Pfandrecht des Vermiethers an den eingebrachten zum Verkaufe bestimmten Waaren des Miethers. Zeitweise und dauernde Bestimmung der Verwendung.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 242, Note 9; Bd. I, § 239, Note 2.Where a tenant agrees that everything brought upon the land or originating therein shall be pledged, and, before bringing anything there, he hypothecates his property to another, and then brings it upon the land, that creditor will be preferred who absolutely and expressly received the pledge; for the reason that the property is not liable under the first agreement, but under that where it is brought upon the land, which was done in the later transaction. 3Ad Dig. 20,4,11,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 230, Note 10.When a contract is made with reference to the hypothecation of property to come into existence hereafter, as, for instance, with reference to the offspring of a female slave; the question arises whether the slave was included in the property of the debtor at the time of the execution of the contract; and with reference to crops, where it is agreed that they shall be subject to pledge, it also should be ascertained whether the land or the right of usufruct belonged to the debtor when the agreement was entered into. 4Where the second creditor is ready to pay the first one what is owing to him, let us see whether he will be entitled to the Hypothecary Action, if the first creditor refuses to accept the money. We hold that the action cannot be brought by the first creditor, since he was responsible for the money not having been paid.

Gaius, On the Hypothecary Formula. Where a creditor consents to the sale of the property hypothecated, the lien on the latter is released. In such instances, however, the consent of a ward should not be considered unless he has given it by the authority of his guardian, who was present, or unless the guardian himself consented; provided the judge thinks that any advantage will be gained, or the claim be satisfied, by the sale of the property. 1Let us see if a general agent, or a slave who has the management of his master’s affairs, to whom payment can be made and who has been appointed for that purpose, can consent. It must be held that his consent is not sufficient, unless he has been expressly authorized to act. 2Again, where an agreement is made with the agent of the debtor that certain property should not be encumbered, it must be held that the debtor can avail himself of an exception on the ground of fraud. But when an agreement of this kind is made with his slave, he can plead an exception based upon the agreement itself. 3If it should be agreed between the parties that half of the undivided property pledged shall be alienated, and the property involved is certain, it can be said that proceedings must be instituted with reference to the remaining portion in the beginning, and that an exception cannot be interposed to prevent it. 4It must be held that where anyone hypothecates his undivided share of property held in common, and a division of the same is made with his joint-owner, not merely that portion which falls to him who gave it in pledge is encumbered, but half of the share of each joint-owner is subject to the lien.

Gaius, On the Hypothecary Formula. Where property is hypothecated, it does not matter in what terms this may be effected, as in the case in those obligations which are contracted by consent. Therefore, if it is agreed that property shall be hypothecated without this being done in writing, and this can be proved, the property with reference to which the agreement was made will be encumbered; for written instruments are drawn up in these matters in order that what has been agreed upon may be more easily established. The transaction will be valid, however, without them, if the evidence is forthcoming; just as marriage is valid where testimony exists without any written instruments having been executed.