Page:Harvard Law Review Volume 10.djvu/370

344 344 HARVARD LAW REVIEW, b. The pledge without creditor's possession is found quite as early as the other form ; ^ which indicates that it cannot have made its first appearance through the development of the missio in banniLin. c. The documents indicate its nature to be simply that of a post- poned or contingent wed? This characteristic is the key to its origin, and will be explained later; it is enough here to note that the primitive transaction does not show signs of being complicated by the phrases of judicial process ; it merely creates a present wed for the creditor, as payment against a loss which he may suffer, the debtor keeping possession until the issue is ascertained ; and if it turns out that the pledgee does suffer the loss, he takes the res like any other zved? In some laws a transfer to take effect in future was not valid unless the transferee first had a present gewere vested in him for a year and a day ; but just as actual transfer of gewere could here be avoided in such ordinary sales or gifts (i. e. with reservation of a of personal suretyship is no more to be looked to as the source of our "pledge " doc- trines than is the process of nam for the Germanic doctrines of wed and pfand. It should be added that as most hypothecs were of realty, and as pfand was chiefly applied to personalty, the hypothec is almost always (except in kistenpfand) dealt with in mediaeval Germanic law in the terms 7ved, satz, satzunif; and thus there is ample evidence from etymology that the hypothec is quite distinct historically from the proc- ess of execution, independently of whether we are able or not to account for the use oi pfand. Nevertheless, that use, though confusing, seems quite capable of explanation in the above manner. 1 Stobbe, Priv. 272; Ileusler, II, § 104; Amira, I. 216. Kohler, 24, gives a capitula as early as 866, dealing with it. 2 A Scandinavian example (Amira, II, § 23) : After selling a piece of land with warranty: "That this sale may be more firm and trustworthy, J. [the seller] has put us [the buyer] his farm of five acres, in M., in full liability, so that we are to take it if the above piece of land should be sued away from us." Germanic examples : After selling a mill and engaging to get the lord's consent to the sale: "quod si negli- gentia vel culpa prepediti non fecerimus, curias duas in M. ecclesiae loco molendini contulimus perpetuo possidenda" (Heusler, II, 145, also 152); after stating a debt: deliberandum ad suprascriptum terminum eo hordine et racione ut supra legitur, tunc tribuat tibi potestas accedere et introniittere sive ad proprium dominare ipsa vestra pignora, et tamquam legitimum documentum possidere, nullo vobis homine contradi- cente " (Kohler, 353) ; " Nos. . . siibpignoramus curiam nostram. . ., et si in solu- cione. . . negligentes extitimus,. . . immediate, cum ipsis [creditors] placuerit,. . . accipiant ^vy^gxox2i nostra" (Meibom, 227, 261). 8 As Heusler expresses it (II, 145) : *■' Satzung with a vesting of gewere in the creditor and satzung without transfer oi gewere bear the same relation to each other as traditiones a die praesente and traditiottes post obitum. Just as the latter are in nature and purport legally similar transactions, so the two types of satzung reveal themselves as one and the same."
 * Predictam autem villam tibi obligo et in pignore pono, ut si minime fecero te ad