Page:Harvard Law Review Volume 10.djvu/416

390 390 HARVARD LAW REVIEW. and with more or less mingling of terms. In a contemporary's words : — " Is tamen usus loquendi est laicorum, qui inter nomen venditiqnis, ubi immobilia cum pacto retrovendendi vendentur et inter nomen pigno- rationis, non faciunt differentiam." ^ The summing up of Heusler seems incontrovertible: "The satz:ings in its essential nature a conditional sale; . . . they are merely differing modalities, such as are often found in the law, without thereby marking any difference of institution." ^ b. But this identity of essence, in that both transactions leave the transferor with a right, but no duty, to redeem, was not incon- sistent with minor differences of legal effect, which might furnish a motive for choice between them. Were there such differences? (i) Term of redemption. There was apparently no difference here. The wedW. no fixed term might be redeemed indefinitely in the future, as we have already seen, except where a custom or law had come in time to establish a limit; and the same appears to be true of the right to repurchase.^ Apparently, however, the 1 Zasius, writing in 1590, quoted Meibom, 7. So also the constant use and modern perpetuation in pledge-terms of redimo, re- demptio, shows how, even in the payment which released a pledge, the idea of " buying back" was originally a natural one (Meibom, 265; Heusler, II, 138). Again, the phrases of pledge and sale are frequently found coupled in a way that indicates the absence of any necessity for or habit of discrimination ; thus, " weddeschalte vtxkopen" and " vvedder/^^<? verpatiden " occur (Meibom, 266) ; a castle is sold for repurchase, and the document continues, "and sie woUen uns das Schloss, und was ihnen damit ver- setzt ist, wieder zu kanfen geben," etc. (Heusler, II, 138); so in Latin, " Hec cartula vendicionis pignus est posita " (Kohler, 357). So, too, in phrases purporting to enumer- ate the possible ways of creating pledge-incumbrances : *' Alle die gute die von uns ver- chumbert, versetzet, oder auf einen widerchauf verchauffet, sint " ; " quae inventa fuerint impignorata vel sub spe redemptionis vendita " (Meibom, 360). There was the same interchangeability in Scandinavian custom (Amira, I, 218 ff. ; II, §§ 22, 69). In Ice- land the development of the sale-form was marked. There were two varieties, with reference to time of redemption, — seljd til stefun, sale till term, and seljd til mala, sale till resale, i. e. for an indefinite period. There was also a peculiar form in some laws, known 2& forsolumala, which the buyer had also the right to compel the seller to buy back, i. e. to treat the original advance as a debt; this was equivalent to the later form of the pledge, and was used in its stead. 2 II, 137. This quality completes the demonstration, if anything is needed, that the primitive nature of the wed'xs that of a provisional discharge of the claim, leaving the debtor with no duty to pay or redeem. ^ Amira, II, § 69. In Scandinavia this perpetual redeemability was cut down by successive steps ; 15 and 20 years were the periods prescribed by some laws, and some- times the limit could be kept open by a public notification of the claim. A distinction also existed in favor of stamtngiit^ or inherited land, which has an important bearing later. In Germany the authorities accessible do not mention the existence of such limits ; but they can hardly be doubted.