Pignus

Roman pledge law provided for the pledgee two types of action to enforce his pledge related rights. Personal contractual action against the pledgor (debtor) and real action against any possessor of pledge. Consecutive plurality of pledgees was constructed alternatively as a conditional pledge of the whole thing or as a pledge of the surplus money (superfluum) after the sale of the thing by first pledgee. The nature of subsequent creditor’s action regarding the latter is questioned in this article. Real action was not applicable against the first creditor since the surplus was not a part of the debtor’s estate until he accepts the money. Personal action is questionable for absence of any obligation or convention between two creditors. Dogmatic correct solution for this problem in the system of Roman law should be the concept of the pledge of obligation, utilizing the duty of first pledgee after the sale to refund surplus to the debtor. Therefore second creditor could use personal actio utilis against the vendor to acquire the surplus; this action was designed as a conjunction of actio pigneraticia in personam directa and actio Serviana.

The means of real securities are often applied in the collateral law in order to maintain confidence in the basic debt relations which form a large field of commercial life. In Islamic law, the means of real securities in debt relations which are discussed for securing of rights of credit are pledge, sales incarceration (hakku’l-haps), mortgage and sale-for-repurchase (bye-al-Wufa). The means of real securities which emerge later than personal securities based on the debit of third person or the borrower constitute the final stage of the collateral law. In Islamic Law, the means of real securities while on the one hand secure creditor’s rights; on the other hand provide easier credit which is needed. For the prevention of loss of rights in debt relations which has a complex structure, the means of real securities perform an important function. Repayment of debt both qualitatively and quantitatively without any absence can become possible with the means of real securities.
This study aims to examine the means of real securities in Islamic law which provide the security of credit rights and are naturally associated with commodity/goods. The subject of the study has been addressed in a comparative way taking into the consideration the literature of the four major jurisprudence schools and the legal regulations of other jurisdictions which are related to the means of real securities.
Key Words: Islamic Law, Real Securities, Debt, Pignus

The second part of the 19th Century, marked by the differentiation in the German historical school, has brought an intensified research in the sources of classical Roman law and the consequent endeavors to purify it from Tribonianisms. In the course of these developments one institute - fiducia, has emerged attracting special interest. Completely replaced in Corpus Iuris Civilis, by pignus and hypotheca in its form of real security, as a preclassical and classical institute it presented a true challenge for scholarly research. Burdened by the lack of coherent and complete sources, most of the existent from non-legal literature, it was the object of speculations and many dogmative constructions, remaining as such even today.
One of the key problems in defining its elements relates to the manner of payment, the satisfaction of the creditor after the debt was due. In the historical development, the dispute revolves about two questions. The first is marked by the clash of two antithetical groups of scholars defending either “Bewahrung” or “Verfall” theory - on the primary form of fiduciary’s authority. The second is the natural continuation into the classical age - on the position and the modalities of ius vendendi. The interpretation of evidence and analysis of other arguments in the paper will show the favorability of “Verfall” theories and also its compliance with the evolution of pactum de vendendo into tacita conditio of negotium.
In line with these remarks, the second part of the paper will investigate the parallels which exist in the contemporary Croatian law. In the regulation of the Law of Property and the Law of Enforcement, two approaches are visible as well. One is relying on the experience of German Sicherungsübereignung, with unconditional transfer of property and prevailing interests of creditors stressed by the possibility of forfeiture (final acquisition of the ownership by creditor), and the other emphasizing its subordination to the rules of pledge and conditional transfer with mandatory sale of the object of fiducia. Both the advantages and the shortcomings of every approach are analyzed, in the end with the proposal of synthetic perspective, taking into the account both scholar and pragmatical, business, considerations. The conclusion is that without the possibility of forfeiture (Verfall) fiducia is superfluous. Regarding its creation in the form of Sicherungsübereignung to overcome the ban of non-possessory pledge on chattels in Germany the gap has been long closed. Furthermore, the closure was brought on the issue of publicity of the security on the movables by the enactment of Law on Registry of the court and notary security interests over movables and rights. Thus, also observing the comparative experiences, the attempt has been made, safekeeping the important elements of Roman fiducia, to adjust it to the modern needs while at the same time use the possibilities of land registration for the protection of weaker side.