Page:Harvard Law Review Volume 10.djvu/375

Rh (3) Liability of a debtor to a surety for possible default; (4) Liability of a guardian on account of an infant's revocation of a sale at majority, of a husband for a wife's claim of dower in property sold, and the like. In such cases, as Heusler remarks, "it would be unreasonable to make a satzung which would transfer the enjoyment of the property immediately to the creditor, for that would be wholly unnecessary and quite beyond what the creditor could have any pretext for demanding." The res was to be the wed, if there should be a default; but as there might not be any default, it was enough assurance for him to have the res legally dedicated in advance to cover that default, while remaining in the meantime in the obligor's hands. This explanation is not only a priori wholly natural and harmonious with the forfeit idea; but it is corroborated by the circumstance that the hypothec-documents of the Middle Ages are commonly given for just such contingent liabilities, and those that are not may be explained as belonging to a later stage. A further consistency and probability appears in the fact that, in this law as in others, the first hypothecs which the law establishes independently of agreement seem to be that of the landlord for rent and that of the wife for the return of the dos, i. e. purely contingent defaults; and it seems entirely probable that these first came into this recognition by having been universally provided for by agreement, and finally received as settled custom.