Page:Harvard Law Review Volume 10.djvu/359

333 THE PLEDGE-IDEA, 333 even in the late Middle Ages long after a fully developed system of debt had arisen ; and even in the last century it was necessary in some of the codes in Germany to declare that the loss of the res did not deprive the creditor of his claim.^ B. a. Along with the features of the development just de- scribed, there are also constantly mingled certain other phenom- ena that have to be carefully separated and accounted for. They are the product of the limited nature of the pledgee's property right in the res after default, and their transition stages are the result of his eflfort to make that right absolute. The key to their 1 The primitive doctrine above explained (i^), that the creditor could not recover even though the rwhad accidentally perished, would probably never have been doubted by scholars as an historical fact if it had not been for the concurrent primitive doctrine that the pledgee was, as bailee, absolutely responsible even for accidental loss. These two doctrines were sometimes, in the legal records, merged into a rule of thumb which has been misinterpreted by some scholars. It can best be explained by taking the troublesome Sachsenspiegel passages. This first says (III, 5, § 4), that the pledgee- bailee is absolutely liable: " Svat man aver deme manne liet [lets] oder sat [pledges], dat sal he [the bailee] unverderft wederbringen, oder gelden na sime werde." Then it makes an exception (§ 5) for animals pledged : " Stirft aver en perd oder ve, binnen sattunge, ane jenes scult [without the pledgee's fault], bewiset he dat und darn he dar sin recht to dun, he ne gilt es nicht." So much as to his liability as bailee to the pledgor offering to redeem. But suppose the pledgor does not redeem, and the pledgee claims the debt (which he would try to do if the res were lost) ; this the law next calls to mind: "He hevet aver verlorn sine gelt, dar it ime vorstunt." Thus, there is an alleviation made for him from his generic liability as bailee to a redeem- ing pledgor; but the forfeit idea — i. e. as regards his claim against the pledgor — is strictly maintained. The oath of innocence which he takes has to do only with his getting the benefit of the former, and does not affect the latter at all. In the later Magdeburg law the situation is thus described: " der schade ir beide schade sein"; i. e. the res is at the risk of the pledgor so far as he is a bailor, and is at the risk of the pledgee so far as he has taken it, in lieu of his claim as a pledge. The distinction in Sweden (Amira, I, 213) and elsewhere by which " both bear the loss " (i. e. the pledgor can hold the pledgee by an offer to redeem) if the res has been burned with the pledgee's own goods, though he must replace it if it is stolen, involves a modification of the pledgee's bailee-liability, and does not affect his loss of his claim against the pledgor, which it assumes as unquestioned. It is thus useless to lay down simply the proposition (as certain earlier scholars did) that in pledges the "risk" primitively was, or was not, the pledgee's; only by taking the above distinction can the situation be accurately described. The two situa- tions may arise separately ; for it is only when the perished res was worth more than the debt that the pledgor will ever offer to redeem and thus raise the question of the pledgee's liability as bailee ; while if the res was worth less, the pledgor will not try to redeem and the pledgee will try to make the pledgor pay, and will thus raise the single question of the nature of the pledge-transaction. Stobbe (Vertr. 260) and Meibom (367) have fully explained, in substantial harmony, the correct significance of the passages ; Heusler (II, 203) expresses the same conclu- sion briefly.