Roman precedents for the right of retention of the pledge.

Abstract

The origin of the right of retention of the pledge, by which the creditor of pledge can make it extensive to other unsecured credits contracted with the same debtor (article 1866.2 CC), is found in a Rescript of the Emperor Gordian III of the year 239. Apart from other problems posed by gordiana regulation is particularly interested in the present work the aspect related to their legal nature, on which the doctrine having has not reached a consensus situation, in the absence of a nexus of connection between the thing retained and credits which it guarantees, i.e. debitum cum re iunctum. Analysis detailed of different sources and particularly from two separate texts of the Digest of Justinian, respectively attributed to Ulpian (Dig. 13, 7, 4) and Paulo (Dig. 20, 3, 3), they disagree about the ius distrahendi or ius vendendi of the creditor of pledge, leads us to conclude that the most successful qualification for the gordiana norm object of this study is that to pignus, so definitely we have called pignus gordianum, highlighting the peculiarity of the figure as at time of Gordian III pignus and retentio agree on his content..