Page:Harvard Law Review Volume 10.djvu/361

335 THE PLEDGE-IDEA, 335 pledgor.^ This defect prevents him from doing as he pleases with the res ; usually, he pleases to sell ; hence he must get a good right to sell. Furthermore, the process of curing this defect of title after de- fault must be distinguished from the process of reducing to a term the unlimited period for redemption which the pledgor had if no period had been expressed for redemption. The wette without any fixed period was (primitively at least) as common, if not commoner than the other,^ and in such case the right of redemption might go on through generations.^ This, too, the tribe of pledgees were interested in changing. But notice that two steps would here be necessary: first, a period must be supplied for redeeming, and then the situation is as if there had been a limit originally; but, next, after a default at maturity of the period, the defect of title also remained, and this, too, had to be remedied, as in the general case above described. c^. This being so, it is easy to see that the sale of the res, about which so much is said in the earlier sources, has nothing whatever in common with our modern compulsory sale. It is simply an incident, and the commonest, in the pledgee's efforts to cure the defect in his title by cutting off the pledgor's outstanding right and thus curing the lack of auflassung. Let us examine the unmistakable marks of this. ( 1 ) He is always spoken of as asking for or receiving a *' liber- tatem vetidendi " or " distrakendi " ; i. e., he wants to sell, and some obstacle to a sale has been removed.'* (2) In the stage reached by some of the laws, the permission to realize is confined to a re-pledge by the pledgee for the amount of his claim, and a sale by him is expressly disallowed.^ Another stage is represented by laws permitting the sale only where a re- 1 Heusler, II, 141 : " If any doubt could exist on this point, it would be removed by the fact that the documents in a satzuug never speak of res ignore ; that the laws always place setzen and aujlassen in antithesis, using the former for pledge-giving, the latter for ownership-transfers ; that the land-registers were classed into libri restgnationutn and libri impignorationum ; and that after a sale the regular entry is * coram considibus resignavit' which is wholly lacking for pledges." 2 Neumann, 192. 8 Meibom, 380; Amira, II, § 22 ; hence the proverb, " versatz verjShret nicht." 331 ; Kohler, 7 flf. ; Weisl, 25, 39, ^i, Aniira, I, 213. ' E. g. : " [When the pledgee wants to realize on default,] daz [the res' sol er dem andern ansagen [notify], und wann der daz nit zu lossen hat, so soUer daz nit hocher versetzen als urn sein schult, aber verkaufen soil ers nit " (Kohler, 1 1).
 * "Potest venumdare de licentia" is another phrase. See instances in Meibom,