Resumen de La contribution romano-canonique à la distinction entre le gageet l' hypothèque ( XIIe - XIVe siècle )
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.
