Page:Harvard Law Review Volume 10.djvu/417

391 THE PLEDGE-IDEA. 39I indefinite term in the latter was in practice more frequent, — a circumstance whose bearing will be seen later. (2) Validity of third persons' rights. A res in the transferee's hands was equally safe, as regards the transferor, whether given in wed or by sale for repurchase. There was no aiiflassutig in either (see infra) ; and hence the seller's right, in the sale for repurchase, was not a mere personal one against the buyer, but involved a property right to redeem in the hands of a transferee from the buyer.^ The later use of the atiflassungy however, would seem to have destroyed this right in both alike. (3) Accessory nature of the wed. As the accessory or col- lateral-security function of the wed developed, there would of course be a difference between that and a sale for repurchase, in that along with the former a debt would independently coexist. But this could not affect the choice for the creditor, for he then would and did simply take a separate instrument of debt along with the sale-document, so that if he chose he could pursue the debtor on that claim without availing himself of the res. (4) Necessity of aicflassimg or resignatio. If the sale for re- purchase involved an aiiflassimg, this would furnish a decided motive for the creditor's choice. But it seems clear that originally the aiijiassiing was wanting in the sale for repurchase, just as it was in the wed ; the theory of the transaction, as well as the actual forms of the documents, show this.^ Later, when the aiijlassimg was resorted to in the wed in order to give the creditor absolute title without going into court, and thus to evade the duty of restor- ing the surplus (as already explained,) the same practice appears in the sale for repurchase.^ Just here came an opening for a 1 Heusler, II, 139. Meibom, 359, is contra ; but does not take notice of the lack of atiflassung. The modern law, till the new Code, took a middle position : Motive zum biirg. Gesetzb., Ill, 451. Heusler seems to believe that the pledgee's sale to a third person would be wholly unlawful, without express permission, but that in the sale for repurchase the right to sell was usually given, subject to the original seller's right to buy back from the third person ; so that the latter afforded a better expedient where the pledgee wished the means of speedy realization by resale (II, 140). But this seems reducible to a question of whether the permission to resell was given more frequently in the latter than in the former, and there seems to be no evidence that it was. 2 Heusler, II, 138. . . a J. et J. filiis N. .. . ix. virgas agri. . . comparavit [bought] ...» quas ad manus A. resignaverunt ; graciose est adjectum quod si infra viii. annos restituere poterint quantitatem pecuniae pretaxatam, ... A. arbitrio et favore vendendi predictis fratribus stare debebit."
 * lb. 139. Neumann, 191, has a typical form, from Cod. Dipl. Siles., IV, 298 : " A.