Page:Harvard Law Review Volume 10.djvu/373

347 THE PLEDGE-IDEA, 347 debtor has merely promised the creditor a general right of levy and sale on default which he would otherwise either not have at all or have only by legal proceedings. This, if true, is more in har- mony with the notion that the specific res is now the creditor's, subject to the contingency of default. That the pledgee did obtain a right good against third persons (e. g. to whom the pledgor might wrongfully transfer the res in the interim) seems clear, though it has been much disputed.^ Moreover, a hypothec 1 Heusler, II, 149; Amira, I, 216; II, § 23 (Iceland), 27 (Norway); Meibom, 428; Kohler, 22; Schulte, 500. Commonly this was specifically provided for by a clause; thus, for a ship : " Posuit navem suam pro 26 marcis, ita quod nee ipsam ven- dere poterit nee exponere [second pledge], nisi prius dicti denarii sunt per soluti" (Meibom, 412); so in the Codex Cavensis : " Non habeamus potestatem per nulli modi nee bindere nee donare ncque per nulla rationem ubique ipso dare " (Kohler, 23, 85). It has been suggested by Stobbe (Priv. 275) that this clause was intended to remove a doubt as to the existence of a property-right in the pledgee, and thus pro- tect his interest; but this seems unsound, not only because the laws show explicit recognition of the right (see infra), but because (as Heusler points out, II, 149) this would not be an effective way of removing the doubt. Heusler's reason, however, (that the pledgor, having the gewerc^ could effectively employ it improperly were it not for this clause), does not seem more satisfactory ; a better reason seems to be the simple one that, since the pledgor could effectively transfer the gewere, and since the pledgee (having agreed to treat the res as the equivalent of his claim on default) would ordinarily have no further claim for payment against the pledgor, and hence no redress at all in case of alienation followed by the buyer's year-and-day ^'^<'W<f;r, he nat- urally tried to protect himself by a special agreement from the pledgor not to transfer it; which would thus give the pledgee a claim for indemnity against the pledgor if he did. The pledgor's alienation was also often expressly prohibited by law (a law of 1658, quoted Kohler, 23: " Es soil niemand gUthere verkaufen noch verwenden die der stadt oder jemand anders zum pfande stehen, er thate es dann mil des raihs erlaubnuss oder mit willen sein biirgen und desjenigen den si unterpfandlich hafften, bey der busse eines neuen schockes") ; the purpose being here, not to save the ]Medgee from losing (for he would not), but to save purchasers from being defrauded ; so also in Sweden (Amira, II, § 23). That the law, quite apart from contract clauses, recognized the pledgee's right as pledgee to pursue the property though alienated is seen by the numerous provisions declaring that this pledgee's right should last no longer than a year and a day ; this was because the purchaser's gewere after that time would protect him, — as indeed it would against any ordinary claimant (Heusler, II, 103, 149), whence the entirely nor- mal nature of the creditor-pledgee's property appears still further; thus: " Verkaufet eyn man synen huf, und vorreycht [transfers] den vor gerichte, den hof mogen des mannes schuldigere [creditors] nicht bekummern [obtain by hypothec], is sen sy [unless] dass der man, ee her den hof vorreychte, gelobit [promifiedj hette vor gerichte dy schult zu bezulen und hette sicli verpflichet und pelobit by syme sygen [seal] ; wo daz geschege, so mochten die schuldigere den hof wol bekummem, und die ufreychungc [transfer] by [within] jare und by tagc widersprechin " (Weisl, 49); "Si quis rem suam obligaverit [hypothec] cuicunque, et denuo illam alteri vendiderit, et emptor ipsam, ante faciem ejus cui obligata fuerit, anno uno expleto possederit, valeat movere; quoniam neglecteri ejus rite de; utabitur, quod emptorem infra tot spatium exinde