Page:Harvard Law Review Volume 10.djvu/363

337 THE PLEDGE-IDEA. 337 mitted to sell after notice. But this was merely the superficial feature ; the process was in essence a making the title absolute, and the sale was simply the use which would generally be made of the res when the title became absolute. (4) That the cut-off proceedings had in essence nothing to do with sale, and in particular that the sale had nothing to do with any duty to restore the surplus to the pledgor (our modern idea, which is apt to be associated with this older process), is further clearly seen from the facts that {a) the pledgee was allowed to employ the cut-off process, and to get permission to sell or to keep, long before he was compelled to restore the surplus,^ and (^), conversely, the duty of restoring the surplus, when that stage is reached, is found even where the pledgee keeps the res, and quite independent of sale by him.^ a" . This proceeding, then, by means of aufbietttng and mittere in bannum, supplied the defect of title which arose from the lack of the aujlassung, resignation or " release " element. But why could not this be supplied by the pledgor himself ? It could be. It might be done by actual aiijlassnng ox resignatio after default;^ but this was rare, of course, being dependent on the pledgor's good will. Instead of this the customary method came to be the embodiment of an aiiflassnng clause in the original document, — 1 E. g. in Lubeck, as late as 1325, he might sell without accounting for the sur- plus: Meibom, 332; see also Amira, I, 203. A custom of Noyon, in 1181, shows clearly the process:*' Siquis terram vel domum in vadimonio posuerit, vel aliquid aliud, et determinato tempore non reddiderit [paid], ille qui vadimonium habet, si voluerit illud assignare sivi et ad se trahere, judices et scabinos illuc adducat, et si post infra quindecim dies redemptum non fuerit, perpetuo sibi jure possident " (Kohler. 138). 2 E.g. in Freiber, it was provided by law " doch das dieses pfand geschatzt sey durch das gerichte, und die besserung an dem das guth gewest [i.e. pledgor] geweiset werde" (Meibom, 338). So for an express clause in a document of 1077 in Salerno: " Et si ipsi tari [golden money] minime nobis [pledgee] retdere potueritde propria sua causa, et illut nobis dandum venerit, atjungamus [hand over] ei pretium a super [over and above] ipsi tari, sicut ipsa rebus abpretiata fuerit per doctos omines et deum timentes, et firma nobis carta emtionis secundum legem facta et cum pena obligata" (Kohler, 88); on default the pledgee is to restore the surplus "quanto tres justi homi- nis existimaverit," and the pledgor is to execute a deed of sale (Id. 86). See also Amira, I, 205. In many laws the pledgee is expressly s. id to have his choice between keeping the res and selling it: Weisl, 69; Stobbe, Priv. 623. 627; Amira, I, 205; II, § 22. et statute die cum memorata pecunia solvere proposui; cum vero prefixus dies ad- venisset et abbas argentum mihi dudum datum requisisset, minime illud recompensare valens, predium abbati in perpetuam possessionis institutam obtuli." 45
 * Heusler gives an example (II, 139) : " Predium meum abbati pro C marcis exposal