Zum Klagsziel der actio pigneraticia in personam contraria in D. 13,7,9pr.

Abstract

In D. 13,7,9pr. (Ulp. 28 ad ed.) a debtor, who has handed over a res aliena as pledge to a creditor, will be sued with the iudicium contrarium. Whereas most handbooks of Roman law understand the aim of the actio pigneraticia contraria as the debtor’s duty to replace the res aliena by a new pledge, owned by the debtor, the sources do not necessarily lead to this conclusion. From the procedural perspective and the condemnatio pecuniaria of classical Roman law (instead of specific performance) this solution seems to be problematic and may have been developed under in any case influence of Justinianic law. Also on the basis of the concept of pignus as obligatio re contracta, it is submitted that the debtor’s obligation could only have concerned the alien thing itself; beside this, the aim of the actio contraria was compensation for the creditor’s damages.