Apledge is abailment thatconveystitle to property owned by a debtor (thepledgor) to acreditor (thepledgee) to secure repayment for somedebt or obligation and to the mutual benefit of both parties.[1][2] The term is also used to denote theproperty which constitutes the security.[3] The pledge is a type ofsecurity interest.[4][5] Pledge is thepignus ofRoman law, from which most of the modern European-basedlaw on the subject is derived, but is generally a feature of even the most basic legal systems.[3] A pledge ofpersonal property is known as apawn.
The pledgee has the right of selling the pledge if the pledgor fails to make payment at the stipulated time. No title to a third party purchaser is guaranteed following a wrongful sale except in the case of property passing by delivery, such as money or negotiable securities. In all other cases, persons must show that they are abona fide purchaser, for (good) value, without notice (BFP). In the case of some types of property as defined on the detailed laws of the jurisdiction, such a new possessor (BFP) must have first consulted (before purchase) revealing no other ownership and then made a public notice or registered their title in a court-recognized register before the pledgor.[3]
In earlier medieval law, especially in Germanic law, two types of pledge existed, being eitherpossessory (cf.Old Englishwed,Old Frenchgage,Old High Germanwetti,Latinpignus depositum), i.e., delivered from the outset, ornonpossessory (cf. OEbād, OFrnam, nant, OHGpfant, Lpignus oppositum), i.e., distrained on the maturity date, and the latter essentially gave rise to the legal principle ofdistraint. This distinction still remains in some systems, e.g. Frenchgage vs.nantissement and Dutchvuistpand vs.stil pand. Token (symbolic) reciprocal pledges were commonly incorporated into formal ceremonies as a way of solidifying agreements and other transactions. A pledge ofreal property which allowed the use and occupation of the pledged property, in lieu ofinterest on theloan, used to be called anantichresis, but contemporary law of mostcivil law jurisdictions only allowshypothec as the solesecurity interest applicable to real estate and (in some cases) marine vessels (ship hypothec), while allowing only pledges (but not hypothec) of othercollaterals, including corporeal movables other than marine vessels, as well assecurities andintangible assets such asintellectual property rights.
Therefore, a pledge incivil law jurisdictions typically corresponds in common law jurisdictions to any possessory or a nonpossessorylien, excluding mortgage or other lien related to property covered exclusively by ahypothec, namelyreal estate and (in some jurisdictions) a marine vessel (ship hypothec).
In English law, the pledge is in the possession of the pledgee, as opposed to a nonpossessorylien or amortgage.[3] Another difference between Roman and English law is that certain things (e.g. apparel, furniture and instruments of tillage) could not be pledged in Roman law, while there is no such restriction in English law. In the case of a pledge, a special property passes to the pledgee, sufficient to enable him to maintain an action against a wrongdoer, but the general property, that is the property subject to the pledge, remains in the pledgor. As the pledge is for the benefit of both parties, the pledgee is bound to exercise only ordinary care over the pledge.[3] After a wrongful sale by a pledgee (such as if the pledgor has been keeping to his payment schedule and will have the right to redeem the goods if continuing to do so), the pledgor cannot recover the pledge/the value of the pledge without a tender of (full payment of) the amount due (secured under the pledge). That contrasts with the generallaw of mortgages, which allows most mortgagors to sustain a cause of action (sue) on a wrongful sale to restore the property into their qualified ownership if they bring any payment arrears up to date plus reasonable debt collection and legal costs of the creditor.[3]
Thelaws of Scotland andof the United States generally agree with that of England as to pledges. The main difference is that in Scotland and inLouisiana, a pledge can be sold only with judicial authority. In some theUS states, thecommon law as it existed apart from theFactors Acts is still followed, but in others, the factor has a more-or-less restricted power to give a title by pledge.[3]
One or more of the preceding sentences incorporates text from a publication now in thepublic domain: Chisholm, Hugh, ed. (1911). "Pledge".Encyclopædia Britannica. Vol. 21 (11th ed.). Cambridge University Press. p. 835.| International | |
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