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LEXEY RUDAKOV* Seizure of Property as a Mean of Judgment Execution (pignus in causa iudicati captum) The present paper discusses a lien created by the seizure of property in form of pignoris capio as a one of the means of judgments execution according to postclassical Roman law. The main sources for this topic are Digest, Theodosian and Justinian Codes. Pignoris capio traditionally considers as a claim in the frame of the ancient legisactional legal process. According to Gaius formulary trial replaced legis actio during the II-I B.C. (Gai. IV.30). But it does not mean that pignoris capio as legal regulation ceased to exist. Moreover it was actively used both in civil and public law1. And in the Justinians codification we can see pignoris capio as a highly systematized legal instrument. Pignoris capio became a universal legal instrument of obligations discharge both in the public and private law. In the sphere of public law during the Late Roman Empire seizure of pledge was commonly used against insolvent debtors of fiscus. Even special titles were devoted to this subject as in Theodosian as in Justinian Codes2. It is well known that pignoris capio was used as enforcement measure towards the debtors of state from the earliest times. During the period of Republic and Early Empire tax farmers were empowered by such authorities as
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Alexey Rudakov post-graduate student in the Centre of Roman law history and the European legal systems, Institute of General History, Russian Academy of Sciences and Academical State University of Humanities, Moscow, Russia. 1 For more details see: .. pignoris capio IV . // . Ius Antiquum. 2008. 2 (22). . 99-101. 2 C.Th. 11.9: De distrahendis pignoribus, quae tributorum causa tenentur (The sale of pledges which are held for the payment of tribute); C. 10.21: De capiendis et distrahendis pignoribus tributorum causa (Concerning the seizure and sale of pledges on account of taxes). 1

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they were the main collectors of taxes. Publicans held the rights for seizure of property as the contract of tax farming was conclude not between private persons but with the state. Moreover, this was always an agreement of publican with the all Roman people3. According to this, debtor of the state considered as the debtor of the Roman people that actually gave to manceps the right of pignoris capio as an administrative measure as he was a representative of all citizens. In private law mostly widespread was the seizure of pledge to enforce a judgment - pignus in causa iudicati captum4. The scholars notice that the main principles of pignoris capio implementation in the postclassical law remained the same like in the ancient times5. Moreover, most probably that non-execution of judgment treated like disobedience to magistrate and pignoris capio remained the administrative method of all magistrates decisions ensuring. And like in previous periods of roman history pignoris capio was closely connected with the imposition of penalty. At least formula pignus aut/et multa was constant during the several centuries of the roman history and was widely used both in private and public law6. Judicial magistrates and their offices obtained the right of property seizure according to their jurisdiction. The basis of pignus in causa iudicati captum was an ancient legal institute and the scholars have no doubt in this7. It should be noticed that concerning the period of Republic our sources do not provide us with sufficient information about the methods of distrained property selling. On the
.. (D. 44. 7. 52) // . Ius antiquum. 2007. 2 (20). . 19-20. 4 Historiography of the subject consists only of four works: Fleischman M. Das pignus in causa judicati captum. Breslau, 1896; Dienstag P. Die rechtliche Natur des pignus in causa judicati captum. Mnchen, 1908; Litewski W. Pignus in causa iudicati captum // Studia et documenta historiae et iuris. 40. 1974. P. 205-302; Wolf-Rdiger von der Fecht Die Forderungspfndung im Rmischen Recht. Kln, 1999. 5 For example see: Street T.A. The Theory and Development of Common-Law Actions. Washington. 1999. P. 281. 6 D. 25.4.1.3: pignoraque eius capienda et distrahenda, si contemnat, vel multis coercenda. (if she refuses, her property shall be taken in execution, and sold, or she shall be punished by a fine.) 7 Dienstag P. Die rechtliche Natur des pignus in causa judicati captum. Mnchen, 1908. S.24 ff; Wolf-Rudiger von der F. Die Forderungspfandung im Romischen Recht: der Vollstreckungszugriff auf Forderungen im Rahmen des pignus in causa iudicati captum und des Fiskalrechts der romischen Kaiserzeit. Kln. 1999. S.52.
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other hand, post-classical legal texts contain complete information concerning this point. Apparently, pignoris capio was used as the method of judgments execution even in Early Empire time however the majority of emperors constitutions dedicated to this question date back to the beginning of the 3d century A.D. and in these regulations several times was stated that emperors had focused their attention on this topic before8. So the procedure of pignus in causa iudicati captum was formed in the 2nd beginning of 3rd century A.D. The most detailed it was described in the 1st title of the 42nd book of the Digest (Concerning res judicata and the effect of decisions, and interlocutory decrees) and in the 22nd title of the 8th book of the Justinianian Code (If any property is seized to enforce a judgment)9. In legal sources the procedure used by magistrates most completely was described in the rescript of the emperor Antoninus Pius (138-161 A.D) and in several constitutions of his successors10. German scholar F. Wolf-Rudiger considers that exactly by the rescript of Antoninus Pius pignus in causa iudicati captum was established11. But anyway this emperor did not invent something new but only adapted ancient legal instrument for the sphere of judgment execution. Thereby the total system of legal regulations concerning the question of judgment execution came to us mostly in the frame of emperors legislation system. According to Ulpianus, who referred to aforementioned rescript of Antoninus Pius, officials appointed judges or arbitrators and authorized the execution of the
For example: . 8.22.1: Imp. Antoninus A. (28 iul. 213, Roma) Gabinio. Res ob causam iudicati eius iussu, cui ius iubendi fuit, pignoris iure teneri ac distrahi posse saepe rescriptum est (It has been stated by rescript that property may be seized, as a pledge, and sold, to enforce a judgment, by order of the judge who has jurisdiction, for the authority of the one ordering the seizure takes the place of a just obligation under a contract). Moreover roman classical lawyers Ulpianus and Callistratus referred to rescript of emperor Antoninus Pius ruled in the middle of the 2nd century A.D. 9 C. 8.22 Si in causa iudicati pignus captum sit; D. 42.1: De re iudicata et de effectu sententiarum et de interlocutionibus. 10 Roby H.J. Roman Private Law in the Times of Cicero and of the Antonines. Cambridge, 1902. Vol. 2. P. 440. 11 Wolf-Rudiger von der F. Die Forderungspfandung im Romischen Recht: der Vollstreckungszugriff auf Forderungen im Rahmen des pignus in causa iudicati captum und des Fiskalrechts der romischen Kaiserzeit. Kln. 1999. S.52.
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judgments rendered by them12. These magistrates at last determined the time and the method of execution13. Emperor Antoninus Pius in aforementioned rescript stated that: Time for payment should be granted to those who admit that they owe a debt, or who are required to pay by a judgment, and the time should be such as appears to be sufficient in accordance with their means. If they do not make payment within the time granted in the beginning, or after it has been prolonged, their property can be levied on and sold, if they do not satisfy the claim or the judgment within two months; and if anything remains out of the price, it shall be returned to him whose property was taken in execution14.
D. 42.1.15 pr: A divo Pio rescriptum est magistratibus populi Romani, ut iudicum a se datorum vel arbitrorum sententiam exsequantur hi qui eos dederunt. (It was stated by the Divine Pius in a Rescript addressed to the magistrates of the Roman people, that those who appoint judges or arbitrators must authorize the execution of the judgments rendered by them.) 13 D. 42.1.2: (Ulpianus libro sexto ad edictum.) Qui pro tribunali cognoscit, non semper tempus iudicati servat, sed nonnumquam artat, nonnumquam prorogat pro causae qualitate et quantitate vel personarum obsequio vel contumacia. (The magistrate having jurisdiction of a suit does not always observe the time prescribed by law, for sometimes he shortens, and sometimes he extends it, dependent upon the nature of the case, the amount of property in dispute, or the obedience or obstinacy of the parties). 14 D. 42.1.31: (Callistratus libro secundo cognitionum.) Debitoribus non tantum petentibus dies ad solvendum dandi sunt, sed et prorogandi, si res exigat: si qui tamen per contumaciam magis, quam quia non possint explicare pecuniam, differant solutionem, pignoribus captis compellendi sunt ad satisfaciendum ex forma, quam Cassio proconsuli divus Pius in haec verba rescripsit: 'His, qui fatebuntur debere aut ex re iudicata necesse habebunt reddere, tempus ad solvendum detur, quod sufficere pro facultate cuiusque videbitur: eorum, qui intra diem vel ab initio datum vel ex ea causa postea prorogatum sibi non reddiderint, pignora capi eaque, si intra duos menses non solverint, vendantur: si quid ex pretiis supersit, reddatur ei, cuius pignora vendita erant. (Callistratus, Judicial Inquiries, Book II. Time for payment should not only be granted to debtors who request it, but it should also be prolonged, if circumstances demand it. Where, however, anyone defers payment, rather through obstinacy than because he cannot obtain the money, he should be compelled to pay by taking his property in execution to satisfy the claim, according to the following rule which the Divine Pius prescribed to the Proconsul Cassius, namely, "Time for payment should be granted to those who admit that they owe a debt, or who are required to pay by a judgment, and the time should be such as appears to be sufficient in accordance with their means. If they do not make payment within the time granted in the beginning, or after it has been prolonged, their property can be levied on and sold, if they do not satisfy the claim or the judgment within two months; and if anything remains out of the price, it shall be returned to him whose property was taken in execution."). See also . 8.22.1: Imp. Antoninus A. (28 iul. 213, Roma) Gabinio.
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Thereby it is obvious from the text of the emperors rescript quoted by Callistratus that the term of payment was determined individually according to property status of defendant. Apparently the time of payment could be extended if defeated party collaborated with officials and took all possible measures to execute the judgment as soon as it could be possible, but some objective reasons did not allow resolving the debt in time. In other hand if the insolvent debtor deliberately delayed the payment and maintained resistance, officials could cut off the time for judgment execution and could use seizure of pledges to enforce the judgment execution. If this measure appeared ineffective the pledge should be sold out in two months. Funds after the selling of distrained property were used to satisfy the judgment but if anything remains out of the price, it should be returned to the person whose property was taken in execution. As a special feature of seized property sale Ulpian marked that down payment was unacceptable. So the buyer should provide full amount of payment for acquired property15. It was especially marked that the pledged property should be sold by the official staff of the judge who makes the order and not by the man who asks that the judgment to be enforced16. If no purchaser for the property taken in execution could be found ownership of it was usually assigned to the creditor. According to Ulpian: If property taken in execution does not find a purchaser it shall be adjudged to him in whose favor the decision against the party who lost the case was rendered. The property is adjudged to him in proportion to the
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D. 42.1.15.7: Nec iniuria adficietur: oportet enim res captas pignori et distractas praesenti pecunia distrahi, non sic, ut post tempus pecunia solvatur. (And besides suffers no wrong: as it is necessary for property taken in execution and sold to be paid for in cash, and not that the money shall be paid after a certain time). 16 C. 8.22.2 pr: Imp. Alexander A. (26 apr. 223) Valeriano. Cum in causa iudicati aliqua res pignori capitur, per officium eius qui ita decrevit venumdari solet, non per eum, qui iudicatum fieri postulavit. (When property is levied on by reason of a judgment, it is usually sold by the official staff of the judge who makes the order, not by the man who asks that the judgment be enforced.) 5

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amount which is due, for if the creditor prefers to accept it in satisfaction of his claim he must be content with it, and the Rescript states that he cannot demand any more than he is entitled to; because, if he is content with the property taken in execution, he is considered as having made an agreement for the satisfaction of his claim17. So in another words, if the creditor preferred to accept the property in satisfaction of his claim, according to Ulpians opinion, he could not demand any more than he was entitled to; because, if he was content with the property taken in execution, he is considered as having made an agreement for the satisfaction of his claim. And even if the cost of pledge was less than the amount of the debt, creditor could not demand remained indebtedness to recover the balance. Apparently such variant considered as an exceptional measure. The point is that in rescripts of emperors Caracalla and Gordianus III was specified that it was prohibited to put the creditor in ownership because property levied to enforce judgment should be sold out on the pubic auction. In the both rescripts stated that this measure could be applicable not only in case when no purchaser for the property taken in execution could be found for a long time according to some objective circumstances, but also in case if debtor unduly hindered from the selling of levied property through some trickery18. But it is necessary to mention that the debtor was always admitted to
D. 42.1.15.3: Si pignora, quae capta sunt, emptorem non inveniant, rescriptum est ab imperatore nostro et divo patre eius, ut addicantur ipsi, cui quis condemnatus est, addicantur autem utique ea quantitate quae debetur. nam si creditor maluerit pignora in creditum possidere isque esse contentus, rescriptura est non posse eum quod amplius sibi debetur petere, quia velut pacto transegisse de credito videtur, qui contentus fuit pignora possidere, nec posse eum in quantitatem certam pignora tenere et superfluum petere. (If property taken in execution does not find a purchaser, it was stated in a Rescript by our Emperor and his Divine Father that it shall be adjudged to him in whose favor the decision against the party who lost the case was rendered. The property is adjudged to him in proportion to the amount which is due, for if the creditor prefers to accept it in satisfaction of his claim he must be content with it, and the Rescript states that he cannot demand any more than he is entitled to; because, if he is content with the property taken in execution, he is considered as having made an agreement for the satisfaction of his claim; nor can he say that he held the property in pledge for a certain amount and bring an action to recover the balance.) 18 C. 8.22.3: Imp. Gordianus A. (13 aug. 239) Antigono. In causa iudicati pignora ex auctoritate praesidis capta potius distrahi quam iure dominii possideri consuerunt. si tamen per calliditatem condemnati emptor inveniri non potest, tunc auctoritate principis dominium creditori addici
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redeem the pledge by the bidding of appropriate price. Of course it could be done only before the selling of the property19. It was appointed to seize movable property and agricultural cattle at first, then immovable assets and only after that obligations20. But in practice this scheme was rather more complicated and had several another variants that made non-execution of judgment quite impossible. In other words, if there was no opportunity to seize as a pledge aforementioned items, any other kind of income could be levied, for example even revenues from the awards21. Moreover if the debtors money was deposited with bankers or just with anyone for safe-keeping or placed in a chest it could be still seized as pledge (D. 42.1.15.11-12). Even promissory note could

solet. (Property levied on, to enforce a judgment, by the authority of the president, is generally sold rather than seized to be held by right of ownership. But if no purchaser can be found through trickery of the judgment debtor, ownership of the property is usually assigned to the creditor by authority of the emperor). See also C. 7.53.2: Imp. Anioninus A. Maximo. Si causam iudicati non novasti, rem iudicatam praeses provinciae etiam pignoribus captis ac distractis ad emolumentum perduci iubebit. (If there has been no novation of the judgment, the president of the province will order it to be satisfied by seizure and sale of pledges.) 19 C. 8.22.2.1: Imp. Alexander A. (26 apr. 223) Valeriano. Et si alio emptore non existente, vel existente quidem, sed non dignum pretium offerente is cui iudicatus satis non fecit ad licitationem secundum constituta fuerit admissus, cuiuslibet alterius vice ex officio emere debet. (If there is no other purchaser, or if there is one, but he does not offer any satisfactory price, the judgment creditor whom fails to pay, may, when, according to an order, he is admitted to the bidding, buy from the official staff, the same as anyone else.) 20 D. 42.1.15.2: In venditione itaque pignorum captorum facienda primo quidem res mobiles et animales pignori capi iubent, mox distrahi: quarum pretium si suffecerit, bene est. Si non suffecerit, etiam soli pignora capi iubent et distrahi. Quod si nulla moventia sint, a pignoribus soli initium faciunt: sic denique interloqui solent, si moventia non sint, ut soli quoque capiantur: nam a pignoribus soli initium faciendum non est. Quod si nec quae soli sunt sufficiant vel nulla sint soli pignora, tunc pervenietur etiam ad iura. exsequuntur itaque rem iudicatam praesides isto modo. (Hence, in the judicial sale of anything which has been taken in execution, movable property, such as animals, must first be sold. If the price of this is sufficient to satisfy the claim, well and good; if it is not, then the real property should be ordered to be taken in execution and sold. Where, however, there is no movable property, the land must be levied upon and sold, in the beginning. Courts are accustomed to decide that, if there is no movable property, the land must be taken into execution, for it is not usual in the beginning to take the land. If the land is not sufficient to pay the debt, or the debtor has none, then any credits which he may have are taken in execution and sold. It is thus that the Governors of provinces execute judgment.) 21 D. 42.1.40: (Papinianus Libro decimo responsorum) Commodis praemiorum, quae propter coronas sacras praestantur, condemnato placuit interdici et eam pecuniam iure pignoris in causam iudicati capi. (It has been established that a party against whom a judgment has been rendered shall be deprived of the advantages attaching to the rewards given on account of the sacred crowns won in public contests, and that this money can be taken in execution for the satisfaction of the judgment.) 7

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become a subject of execution22. In case debtor had not any property full responsibility rested with his guarantors, companions, patron, father, husband etc. Variety of opportunities for collection were provided and that was quite the same as in public law where was complicated system of responsibilities as well. And it was rather efficient defense of Roman society against possible financial losses. But it is necessary to mention that there were several exceptions. One of that was military stipendia from these funds it was prohibited for officials to seize the pledge23. Court officials were responsible by their own property for the safekeeping of the seized pledges24. And if this property was returned to the owner defective, he could bring an action according to lex Aquilia25. By the first paragraph of the Lex Aquilia it is provided that, "Where anyone unlawfully kills a male or female slave
D. 42.1.15.8: Sic quoque iudices exsequentur iudicatum, ut nomina iure pignoris capiant, si nihil aliud sit quod capi possit: posse enim nomen iure pignoris capi imperator noster rescripsit. (Magistrates can also execute a judgment by taking the claims of the debtor, if there is nothing else subject to execution, for our Emperor stated in a Rescript that a promissory note could be taken in execution.) The same was stated later in the rescript of emperor Gordianus III: C. 7.53.5: Imp. Gordianus A. (13 oct. 242) Amando. Etiam nomen debitoris in causa iudicati capi posse ignotum non est. (Magistrates can also execute a judgment by taking the claims of the debtor, if there is nothing else subject to execution, for our Emperor stated in a Rescript that a promissory note could be taken in execution). 23 C. 7.53.4: Imp. Antoninus A. (3 jun. 216) Marcello mil. Stipendia retineri propterea, quod condemnatus es, non patietur praeses provinciae, cum rem iudicatam possit aliis rationibus exsequi. (The president of the province will not allow your salary to be detained to satisfy a judgment against you, so long as he is able to compel it to be satisfied by some other method). 24 For more details see: . Lex Aquilia // . Ius antiquum. 2007. 1 (19). . 37 44. 25 D. 9.2.29.7: Magistratus municipales, si damnum iniuria dederint, posse Aquilia teneri. Nam et cum pecudes aliquis pignori cepisset et fame eas necavisset, dum non patitur te eis cibaria adferre, in factum actio danda est. Item si dum putat se ex lege capere pignus, non ex lege ceperit et res tritas corruptasque reddat, dicitur legem Aquiliam locum habere: quod dicendum est et si ex lege pignus cepit. Si quid tamen magistratus adversus resistentem violentius fecerit, non tenebitur Aquilia: nam et cum pignori servum cepisset et ille se suspenderit, nulla datur actio. (Municipal magistrates who have committed wrongful damage can be held liable under the Lex Aquilia; for where any of them has taken cattle of yours in execution, and allows them to die of hunger, by not permitting you to give them food an action in factum should be granted. Moreover, where he thinks that he is levying an execution in accordance with law, but does not actually do so, and restores the property worn out and ruined, it is held that the Lex Aquilia will apply; and this, indeed, can also be stated where the execution was levied in compliance with the law. Where, however, a magistrate committed violence against a party who was resisting, he would not be liable under the Lex Aquilia, for when one took a slave in execution and the latter hanged himself, no action was granted.)
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belonging to another, or a quadruped included in the class of cattle, let him be required to pay a sum equal to the greatest value that the same was worth during the past year26". If the matter concerned any other kind of property except slaves or cattle magistrate should be compelled to pay the amount to the owner equal to the market value within the preceding thirty days27. It was specially stressed in Digest, Theodosian and Justinian Codes that property seizure considered unlawful if judgment had not been rendered heretofore. In rescript of emperors Septimius Severus and Caracalla addressed to Justin, directly stated that seizure of the pledges and its further sale was unlawful if it was processed before the render of judgment (C. 7.53.1). In connection with this Ulpian considered that Property which has been taken in execution and sold can be recovered, if this was done without a judgment having been previously rendered28. The only possible exception when the trial could be carried out in the absence of defendant and the judgment could be rendered when the plaintiff was fiscus. Paulus claimed that the presence of all the parties interested was obligatory otherwise the judgment would only take effect with reference to those who were present. If the parties who had been repeatedly summoned neglected to defend their cause before the Fiscus, they were liable to an action on judgment. This is understood to be the case where, having been notified several times, they refused to appear. And after that court officials on the lawful basis could execute judgment with help of pignoris capio29.
D. 9.2.2: (pr. Gai. 7 ad ed . provinc.) Lege Aquilia capite primo cavetur: ut qui servum servamve alienum alienamve quadrupedemve pecudem iniuria occiderit, quanti id in eo anno plurimi fuit, tantum aes dare domino damnas esto. (It is provided by the first section of the Lex Aquilia that, "Where anyone unlawfully kills a male or female slave belonging to another, or a quadruped included in the class of cattle, let him be required to pay a sum equal to the greatest value that the same was worth during the past year".) 27 D. 9.2.27.5: (Ulpianus 18 ad ed.) Tertio autem capite ait eadem lex Aquilia: ceterarum rerum praeter hominem et pecudem occisos si quis alteri damnum faxit, quod usserit fregerit ruperit iniuria, quanti ea res erit in diebus triginta proximis, tantum aes domino dare damnas esto (In the third Section the Lex Aquilia says, "If anyone damages the property of another except by killing slaves or cattle, whatever the value of the property burned, broken to pieces, or injured, was, within the preceding thirty days; the party must be compelled to pay the amount to the owner of the same".) 28 D. 42.1.58: (Ulpianus libro septimo disputationum.) Si, cum nulla sententia praecessisset, capta sunt et distracta pignora, possunt revocari. 29 D. 42.1.47: (Paulus libro quinto sententiarum.) De unoquoque negotio praesentibus omnibus, quos causa contingit, iudicari oportet: aliter enim iudicatum tantum inter praesentes tenet. 1. Qui
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So according to analysis of all aforementioned sources we can definitely assert that in the time of Late Roman Empire pignoris capio was efficient and universal method of judgments execution. Seizure of debtors property was used during the whole history of the Roman and Early Byzantine Empire. Moreover the whole procedure was elaborated in details by the classical roman lawyers and in emperors legislation as well. Because of this pignoris capio was universal legal instrument and it was efficient both in private and public law. And what was the secret of pignoris capio efficiency as the method of judgments execution? The main reason is that the majority of agreements in the Ancient Rome were ensured by the property of the parties and by their guarantees. On the basis of this court magistrate had always a clear idea whose property should be levied and by what means the whole procedure should be processed. And pignus in causa iudicati captum was one of the mean of this principle realization.

apud fiscum causam defendere saepius conventi neglexerint, rebus iudicatis subiciendi sunt. Quod eo apparet, si saepe conventi praesentiam suam facere noluerint. (In every case judgment must be rendered in the presence of all the parties interested, otherwise it will only take effect with reference to those who are present. (1) Where parties who have been repeatedly summoned neglect to defend their cause before the Treasury, they are liable to an action on judgment. This is understood to be the case where, having been notified several times, they refused to appear.) 10