Page:Harvard Law Review Volume 10.djvu/353

327 THE PLEDGE-IDEA. 327 cannot compel him; he looks exclusively to the res for payment; it is a provisional payment. Hence: ^. the pledgee cannot sue the pledgor, inasmuch as the res is his payment; b. the pledgee has no redress if the res perishes by accident; c. the pledgee has no redress if at the maturity of the period the res has become less in value than the original claim, or on being sold leaves a deficit. 2. The pledgee, while thus having the detriment arising from the res being a payment, has also the advantage ; for on default the res becomes his in 'toto, i. e., he is not bound to restore the surplus value. B. Along with these features, but not peculiar to this trans- action, is another, whose steps of development have to be noted in order to distinguish them from the preceding features, and to explain later problems, i. e., the feature of defect of absolute title, due to the fact that the transfer of the res^ being provisional only, lacked the atiflassung or final abandonment of right by the pledgor. Even after default at the time appointed for redemp- tion, the pledgee's title still has this defect; and while the other features are passing into their later stages, we here find the pledgee successfully endeavoring to remedy this defect; it is this process that has to be carefully distinguished from the others. To take up the evidence. A., a. No personal action for the pledgee against the pledgor.^ In the first place, the documents usually do not (as our modern ones do) mention any obligation of debt as arising from or accom- panying it;^ e. g. "we have pledged the manor of Blackacre for 100 marks." Furthermore, the early documents expressly speak of the transaction as a " payment," i. e. extinction of a claim.^ Finally, some laws particularly mention the pledge's inability to treat the claim as surviving.* Strong light is also thrown by the 1 Meibom, 274 ff. ; Heusler, II, 132, 133 ; Kohler, 99, 100, 137. 2 Meibom, 276. rum. . . castrum. . . pro 1000 marcis obligavimus" (Meibom, 278); "pro ipsa causa solidus tantus in pagalia mihi dare debueras, quos et in praesenti per wadio tuo visas es trattsolsisse" (Wodon, 122) ; "per suum vvadium ipsas res. . . reddidit" (Id. 108), and of course the phrases "per wadium meum componere " and "cum uno wadio emendare" >vere common ones for the process of payment by wadium; "ducentas libras Hoiiandenses ad [doteni] dicte Aleidis promisimus conferendas, et pro solutione dicte pecunie eidem obligavimus decimas segetum et minutas decimas" (Kohler, 52; this is as late as 1269). him not the sum which he claims, but he has a pledge from me [for it],' . . . the former
 * "Cum in solutionem dictarum 5oomarcarum . . . turn in recompensatiouem damno-
 * " When one man sues another for a sum of money and the other answers, * I deny