Page:Harvard Law Review Volume 10.djvu/367

341 THE PLEDGE-IDEA. 341 understand the form which, by their collision, they gave to the transaction and the problem as it came before modern Germanic courts. II. The Pledge without Creditor's Possession, Neither etymology nor usage furnishes us in our language with terms exactly expressing the antithesis between the giving and the not giving of possession of the res to the pledgee; for the pur- poses of discussion, however, it is necessary to have a term that implies merely this antithesis ; and accordingly the word '* hypo- thec" will be here employed as indicating a pledge of which the custody is not given to the pledgee, but is retained by the pledgor. The problem, of course, is to ascertain why that form of the transaction was in a given case chosen instead of the other, — to account for its existence as a distinct legal expedient. Not until we have learned this shall we be able to interpret and to harmonize its peculiarities, whatever they may be, and to understand its develop- ment. Now the dominant theory, particularly since Albrecht and von Meibom, has been, that in Germanic law the hypothec was a later (*' neue Satzung") and an independent development; that when the primitive remedial expedient of self-redress (as a source of creditor's satisfaction) had developed into a system of regulated judicial execution for debt, the creditor found it natural to avoid the necessity of appealing to legal proceedings by securing before- hand from the debtor a consent to such a levy in case of default, the object of the transaction being the gaining of a right on his part to cause a sale of the property on default, and to take the proceeds sufficient to satisfy his debt. The theory of Brunner^ and of Franken^ (though only briefly explained) is slightly different, in that it posits a more direct historical connection between the process of judicial execution and the institution of hypothec; but the essential notion of the expedient in both theories is the same. The marked feature assigned to the hypothec (though they do not clearly bring out the antithesis between the " new " and the " old " satzung) is that it is a specific lien created by the debtor for the ultimate purpose of obtaining proceeds for the creditor by a sale (in Franken's phrase, " nach dem Verkauf zielend "). This notion 1 1880: Rechtsg. dcr Rom. und Germ. Urkunde, 194: "cine aus der missio in ban- num hervorgegangene amstrechtliche Verpfandungsform jUngeren Aufsprungs." 2 1879: Franzosisches Pfandrecht, 7: "Der Gerichtsbann ist die Wurzel der Im- mubilar-Execution, und damit aucli der neuern Satzung."