VI. La contribution romano-canonique à la distinction entre le gage et l'hypothèque (XIIe—XIVe siècle)

Abstract

In Roman law the institute hypotheca evolved as aresult of procedural modification of the pignus !. even though both sureties were distinct, Marcianus stated that they were different only by the sound of their names. Medieval jurisprudence since the XIIth century referred to Justinian compilations to develop distinct and proper qualifications for hypotheca and pignus . In doing so the legists interpreted Roman law with their scholastic methodology and looked for decisive elements of distinction between pignus and hypotheca . Concerned with questions of legal concepts they searched for the philologic origin of pignus and assimilated hypotheca with suppositio . Moreover, they looked into the procedural and terminologic origin of the hypothecaria actio , namely the creditor's action. At this point they also explained the Roman law mechanism of dispossession. In the course of these debates the traditio got special importance and proper designations - as opposed to improper definitions - emerged. Distancing themselves from Roman law the Glossators derived the legal essence of pignus and hypotheca from linguistic arguments. In doing so they combined pignus with res mobilis and hypotheca with res immobilis . The canonists took part in these debates and furthered their diffusion. Proper qualifications of pignus and hypotheca were useful for the pontifical efforts to limit alienation of ecclesiastical objects and to fight usury.