Page:Harvard Law Review Volume 10.djvu/371

345 THE PLEDGE-IDEA. 345 life estate) by the transferor's paying a rent, nominal or substan- tial, in recognition of the transferee's ^£'7£/^;'^, so the same expedient was resorted to in hypothecs ; ^ and so far as in later law the same end could be obtained in other cases by simply handing over a sealed deed drawn before a court officer, or by making an entry on the court records, it was also done for hypothecs.^ d. The unmistakable marks of the forfeit idea, which we have seen to belong to the ordinary wed, are found also in this form. In the first place, the res, if default occurs, in primitive times, pays the pledgee regardless of its deficiency of value, and the pledgor cannot be looked to for the deficit;^ while (as we saw above) the later law finds this departed from, and the debtor made liable for the deficit.* In the next place, the res was forfeited, in the sense that the creditor took the whole, without any duty to return the surplus,^ — as in the ordinary wed or satzting; but here, too, the later law gets gradually away from this, and we find a valuation and return of the surplus.^ As before, in the ordinary wed, the 1 Heusler, II, 147; the pledgee of a res intended as contingent payment for a breach of vvarranty is given " gewerschafft zu rechtem furpfand,"but until default he is merely to *' ab dem fiirpfand jahrlich zu nutz und gewer rechter pfandschafft nemen ein hun." 2 Heusler, II, 147 ; Bav. Landr. : " Wer dem andern pfant untwurt, und daz pfant dannoch in seiner gewalt beleibt, ... da sol er im brief iiber geben mit sigel": Meibom, 49. Hence the custom of merely handing over title deeds to the pledgee as a form of hyopthec: Heusler, II, 146; which lasted in Regensburg till 1813: Stobbe, Priv. 274; and is found in other countries as well. Moreover, so far as an ordinary transfer of land was required to involve a formal transaction before the assembly or court (Heusler, II, 100), just so far would this contingent pledge transfer require the same, and hence historically the origin in some regions of registration as necessary to the validity of hypothecs : Weisl, 42, 50 ; Stobbe, 287 ; so far as this persisted later and was extended, in the absence of a general transfer-registration, reasons of policy could have induced this special survival. indescribable evidences of the equivalency-idea run through the documents, which give the reader a clear impression of the identity of the rued idea in both. advanced or later stage). shows how the auflassung or commissoria clause was used to dispense with the duty of restoration which the later law ordinarily placed on the pledgee ; upon default, the pledgees "cum placuerit, immediate accipient subpignora nostra, facientes cum hiis omnibus, secundum formam proprietatis tituli, quitquit ipsis videbitur expedire " ; again, dominare in vestra potestate " (Kohler, 85). In Norway, the different stages appear very distinctly; the pledgee takes the whole res in forfeit, unless there is a special agreement that he is to take the equivalent of his claim only ; in the next stage, he is 46
 * Stobbe, Priv. 276-278; Amira, I, 216; II, 23. Moreover, the same general but
 * Stobbe, lb. ; Amira, lb. (in the first passage, the Wisby law represents the more
 * Stobbe, lb. ; Amira, lb. ; Meibom, 435.
 * Stobbe, Meibom, Amira, ubi supra. A clause from a document in Meibom, 261,262,
 * ' Si non redederemus . . . licentia aveatis tu aut tuos heredes supradicta terra avire et