Title XXI: On Pledges and Other Securities

Latin source headnote: Property of a church ought not to be pledged except from necessity and for a reasonable cause.

From the Council of Reims.

Let no priest presume to give a chalice, paten, altar cloth, priestly vestment, or ecclesiastical book as a pledge to an innkeeper, merchant, or any layman or woman, unless the most just necessity presses, [because so great is the sanctity of the sacred ministry, etc.]

Latin source headnote: A free man cannot be pledged.

Gregory III, to the Bishop of Exeter.

The bearer of the present letters, [Cosmas the Syrian, reported that he contracted a debt in the business he conducted, which, with many others and his tears attesting it, we believed to be true. And because he owed one hundred and fifty solidi, I wished his creditors to agree upon something with him,] because also the law holds that a free man is not to be detained for a debt, even if property that can be assigned for the debt is lacking. Therefore the creditors, etc.

Latin source headnote: If a rector of a church obligated property of the church for his own act, his heir is compelled to redeem the property and restore it to the church.

Alexander III, to the Bishop of Exeter.

We received from the intimation of the bearer of the present letters that Alexander, formerly priest of the church of Offiton, pledged a [certain] silver chalice and half of one breviary of that church for his own necessity, and, overtaken by death, did not recover them. Hence, because it is unworthy that its property, and especially things assigned to sacred ministries, ought thus to perish from the same church, by apostolic writings we command your fraternity that, if what is asserted is true, you diligently admonish and compel his son Walter, who is said to obtain a right from succession to his patrimony, to recover those things and restore them to the aforesaid church. But if he is unwilling to do this, do not delay to restrain him with the bond of anathema.

Latin source headnote: If a usurer buys a thing under an agreement that after a time he will restore it to the seller, receiving something beyond the principal, but with its fruits computed toward it, the contract is adjudged a loan at interest.

Innocent III, to G., Our Subdeacon, and P., Canon of Pisa.

We believe you to flourish with that gift of knowledge by which you clearly know what the law is concerning that about which you wished to consult us. Nevertheless, because you petitioned to be instructed by our response, lest decision of the business be prolonged under expectation of that response, we thought that we should answer you by the present letters. Indeed, you intimated to us by your letters that, when we thought that the cause disputed between H. and B., sons of G. de Cosa, on one side, and G., daughter of Tebert, and her heirs on the other, concerning certain lands pledged to the aforesaid persons for twenty-three pounds, should be committed to you, giving you a mandate by our letters that you take care, by the penalty promulgated against usurers in the Lateran Council, to compel G. herself and her heirs to restore to the complainants the vineyards and whatever they had received from them beyond the principal, you took care to cite the parties so that you might proceed in the aforesaid business according to our mandate. And when they were constituted in your presence, it was proposed before you on behalf of the aforesaid G. and her heirs that the lands that H. and B. sought from them were not obligated as a pledge but sold purely, as was contained more fully in the instrument drawn up therefrom. But the aforesaid H., on behalf of himself and his brother, firmly asserted that the lands were not sold purely but obligated as a pledge, since such a condition had been added to the aforesaid sale: if from the time of the contract until the next two years the purchase displeased the aforesaid T., G., father of H., ought from then until one year to give twenty-six pounds, with the fruits received computed in them, as he firmly asserted was contained in the same instrument. But because, as you indicated in the same letters, you doubt whether it is a pure and absolute sale or the aforesaid contract ought to be adjudged a pledge, you petitioned to be instructed by our letters. But we answer your consultation in this manner: whatever the intention of the contracting parties was, and although from the form of the contract the sale appears not conditional but pure, even if it can be dissolved by a condition, nevertheless from the two things that were expressed in the agreement—namely, that the fruits received ought to be counted in payment of the money, and that sixty solidi ought to be paid beyond the sum received—a strong presumption arises against the purchaser himself, especially since he has been accustomed to practice usury and commit the fraud of usury. [Given at Ferentino, on the fifth day before the Nones of July. 1203.]

Latin source headnote: A woman proceeds for her dowry against anyone detaining the husband's goods.

The same, to the Bishop of Aquino.

We received from the letters of your fraternity that, when we thought that the cause disputed between R. of [Saint] George and the woman A. [of Saint] Germano should be committed to you, when for almost two years you had endeavored that the cause be ended by agreement, but the parties did not acquiesce, after summoning prudent men and examining more diligently the merits of the aforesaid cause, you thought, by the counsel of prudent men, that the same business should be remitted to our presence, especially for this reason: that it appeared specially to pertain to royal judgment. Indeed, it was clearly proved that, after an offense was committed by the husband of the aforesaid woman and he sought flight, both the husband's brother, namely, the aforesaid R., and the woman herself, although less justly, were captured by R., then Count of Caserta and royal justiciar; and that at his mandate all the goods of the offender were sold, and money [was] paid to the merchant who had been wounded by the husband of the said woman and despoiled of his own goods. But the sale of those goods was made through the aforesaid R., although at the mandate of the aforesaid justiciar. Yet certain possessions of that man remained with the same R., the woman's brother-in-law, which that R. retained at the mandate of the court, after paying money for them to the aforesaid merchant, because, as he says, no other purchaser existed on account of the smallness of the possessions. But the woman's party firmly alleged that, since a dowry is preferred to all creditors, and all the husband's goods were obligated to that woman on account of her dowry, since the woman was not culpable in this, she ought not to lose her dowry; on this account she insistently sought that the valuation of the dowry be restored to her, or that by virtue of the delegation she be inducted into the possessions that had belonged to her husband, asserting that her husband's fault ought in no way by law to harm her. But the man's party answered to the contrary that he was not bound [to her] to answer in any way concerning these things, because nothing had been sold from the goods of the woman's husband by his will or authority, but the fisc had caused them to be seized and commanded them to be sold, which he also proved by the assertion of witnesses. Indeed, when the woman's party said that some possessions of her husband remained that had not been sold, and petitioned to be satisfied from them, you diligently inquired of each party how great the sum of money was that had been paid to the merchant, and from the confession of each it was established to you that immovables up to twenty-four ounces of gold had been alienated. But the aforesaid R. said that he had added eighteen [ounces] to those twenty-four ounces and completed for the merchant the number of forty-two ounces of gold. The aforesaid R. also alleged that, since there were five sons of one father and all succeeded to the paternal goods, when the whole inheritance had been valued, nothing came to the husband of that woman from the paternal inheritance worth beyond twenty-four ounces of gold.

But because the same cause remitted to us was not sufficiently instructed, nor was it established to us whether the woman had given as dowry the ten pounds of tarins that she sought, or whether R. himself possessed anything from the goods pertaining to his brother, the husband of the aforesaid woman; nor could we have insisted upon examination of the cause, both because, as you say, allegations and proofs had been renounced in your presence, and because suitable and sufficient respondents had not come to our presence: we thought that the same cause should be remitted to your examination. By apostolic [writings we command you] that, if it is established to you from the things proposed and proved in your presence that the woman gave to the man as dowry what she says and that the aforesaid R. possesses some of his brother's goods—since much favor is owed to women in recovering dowries, and it is also provided in law that a woman ought not to remain without dowry on account of the wrongdoing of her husband, since the husband's goods are also tacitly obligated to the woman for her dowry and have passed with their burden to any possessor—you condemn the aforesaid R., appeal being removed, to restitution of the dowry to that woman to the extent that he is known to possess goods of his aforesaid brother. [Given at Rome at Saint Peter's, on the second day before the Ides of February. 1205.]

Latin source headnote: If the creditor, or one who has a cause from him, has received so many fruits from the pledge that the principal has been satisfied, the pledge ought to be restored to the debtor.

The same, to R. of Montefortino.

When you moved a question in our presence against the noble man G., a citizen of Anagni, concerning certain possessions that formerly L. de Saul, your father, had obligated for a certain quantity of money and the heirs of that creditor had pledged to the aforesaid G., we appointed for you and him as auditor our beloved son P. de Saron., our subdeacon and chaplain. Therefore, constituted in our presence, you lawfully proved that the possessions themselves had been obligated by title of pledge, and that so much had been received from their proceeds, both by that G. and by others who held them from the time when they were obligated, that the fruits could be equated with the principal. We therefore, attending that in such matters receipt of the fruits accrues toward payment of the principal, since according to the canonical sanctions the fruits ought to be restored and computed toward the principal, and also considering that the possessions themselves had already wholly exhausted the entire burden and annulled the debt, by the counsel of our brothers decreed that they were to be restored to you, and caused you to be inducted into corporal possession through our messenger.

Latin source headnote: If one who pledged his property under an agreement of a forfeiture clause and swore not to contravene was justly impeded from redeeming it within the appointed day, he will be able to redeem it after the day.

The same.

It became known to us from the signification of our beloved son R., a citizen of Pisa, that, when he had pledged his house with a garden to G., a citizen of Pisa, for two hundred and fifty pounds, and had promised under oath that, unless he recovered the house itself within the term appointed between them, he would not thereafter trouble the same creditor concerning it, within the appointed time he remitted counted money to the creditor through a certain and faithful messenger, as it appeared to him. Acting unfaithfully, that messenger did not pay it as had been enjoined upon him, and afterward the same R., captured and detained by the emperor, could not satisfy the said G. as he ought. Now, restored by God's grace to his former liberty, he is prepared to return the money to the creditor, although the latter wholly refused [to receive it,] because it was not paid to him at the appointed term. Therefore, since an agreement of a forfeiture clause is disapproved in pledges, and the aforesaid R., insofar as it lay with him, fulfilled the debt of his oath, since through one whom he hoped to be a certain [and faithful] messenger he remitted the money at the appointed term, but, while detained in imperial captivity, could not satisfy the creditor, by authority of the present letters we command your discretion that, if it is thus, you compel by ecclesiastical censure, after previous admonition and with the obstacle of contradiction and appeal removed, the aforesaid creditor to be content with his principal, with the revenues of the aforesaid pledge computed toward it, and to resign that house and garden to the aforesaid R., every delay being set aside, notwithstanding such an agreement or oath. [Given at the Lateran. 1198.]

Latin source headnote: A usufructuary gives security that he will enjoy immovable things with their substance preserved, and, when the usufruct has ended, restores the money and valuation of movables that are consumed by use.

Gregory IX.

Since it is established that the woman I., wife of Ogerius, succeeded her son as to usufruct in goods whose ownership is known to pertain to the woman M., wife of C., we command that you compel her by ecclesiastical censure to exhibit suitable security that, according to the judgment of a good man, she will use and enjoy immovable things that are not consumed by use with the substance of the things preserved; but that she will restore at her death to the said woman or her heirs the money, if she had or shall have any, and the valuation of goods that are consumed by use and were found in the inheritance.