Page:Harvard Law Review Volume 10.djvu/372

346 34<5 HARVARD LAW REVIEW, latter development — the pledgee's duty to restore the surplus — comes before the former, — the pledgor's liability for the deficit.^ Parallel with this development of the forfeit-idea went also, of course, the development of the pledgee's efforts to cure the defect of his title, as already described for the ordinary w^<af with pledgee's possession ; the pledgee on default was allowed to take proceedings to cut off the pledgor's right,^ and he could also attain the same end by inserting in advance an auflassung or resignatio clause (Jex commissoria) ; ^ and this, too, the law afterwards struck at (as already explained) by compelling (not merely permitting) him to sell or re-pledge, in order that he should not by forfeiture of the res evade his duty of restoring the surplus value.^ The presence of these marked features of the forfeit-idea and its development seems to dispose conclusively of the ** anweisung von executions- gegenstanden " theory, — the theory that the original notion of the hypothec form was the securing of a lien on a res to be sold to get proceeds ; as well as of the other theory, that originally by the missio in banniim regis the property was sold and the debt paid out of the proceeds. e. The pledgee obtained a title to the res, good against third per- sons. This, if true, militates strongly against the theory that the to take the exact equivalent of his claim, unless by specialagreement he may take the whole. In Iceland an intermediate stage appears, in which he is to take double the amount of his claim, by measuring off for himself the land required, according to a valuation of the neighbors, — unless other creditors would suffer owing to the debtor's insolvency, in which case he takes only the exact equivalent ; in the later law, he takes always the exact amount only. 1 Stobbe, Amira, ubi supra. This is neatly to be seen in the laws mentioned by Stobbe; in some of them the stage of handing over the surplus is not yet reached; but in most of them a sale is to be made and the surplus handed over; within this latter group, however, are still some which do not require the pledgor to make up a deficit. So in Amira's records, the Wisby law, representing the later stages, requires the pledgee to restore the surplus, and the pledgor to make good any deficit; but an earlier text of the Hamburg law, on which the Wisby law was founded, does not con- tain a clause making the latter requirement. 2 Stobbe, Priv. 276; the pledgee usually summoned the pledgor three times, and then the court gave him the ownership. 8 Some examples have already been given in the last note but one. It is worth noticing that a common form was one which (as we shall see) had formerly been used and much discussed in Roman law ; the pledgor describes the transaction as a pledge, and declares that on default the res shall belong to the creditor as by sale, and gives the requisite auflassung in advance : " A resignavit R. hereditatem . . . pro 50 marcis . . . tytulo pignoris, usque ad instauc festum nativitatis Domini ; si tunc argentum sibi non solverit, tunc dictam hereditatem j'usto emtionis tytulo obtinebit " (Meibom, 435 ; 1327 A. D.).
 * For Scandinavia, see Amira, I, 216.