oa Fundamina : A Journal of Legal History - Codex 8 26(27) 1 : the forgotten text
In C 8 26(27) 1 Emperor Gordianus decreed that the pledgee's retention right over the pledged thing applied to both the secured and unsecured debts of the pledgor. This retention right was enforced by the exceptio doli. If the pledgor should claim for return of the pledge after payment of the secured debt, but other unsecured debts were outstanding, the pledgee could raise the exceptio doli until the latter debts had been paid. Voet shows that this rule was received in Roman-Dutch law. It was also adopted in the law of the Cape Colony and in the Transvaal. However, in the Bank of Lisbon case, no mention was made of the Codex text, Voet, the Cape law nor Smith v Farrelly's Trustee; and it is submitted that abrogation of the exceptio doli effectively abolished the pledgee's retention right.
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