Page:Harvard Law Review Volume 10.djvu/419

393 THE PLEDGE-IDEA. 393 tivated In entirety by the family members; ^ in which the consent of all the heirs (even where genuine entirety does not exist) is requisite for a sale down to the latter Middle Ages; in which these heirs, till a still later period, have at least a right to buy back; and in which the alienation of land on execution to pay debts is the last step taken in that type of process. It is, moreover, a community in which bankruptcy brings a social stigma of a quality impossible for us to appreciate; in which it ruins the family, and makes " broken " men of its members. The stress which forces to pledge the family estate and to resort to the money lender is the last stage short of bankruptcy ; ^ and it is a stage which the family does not wish publicly to acknowledge that it has reached. The transac- tion, then, which will raise the needed money, will leave the way open for a winning back of the family inheritance when its fortunes have been regained, and will at the same time avoid the stigma of being forced by a pecuniary need, is the transaction which will commend itself as the desirable one, wherever it is by means of the family inheritance that the money is to be raised. Such a transaction is the sale for repurchase. Moreover, two circum- stances combine to favor it. In the first place, the aid will be sought by the debtor, if possible, from some more prosperous branch of the same family, because that will seem to the world a more natural transaction, because the buyer will take less advan- tage of the family need, and because, since they have only a spes redemptionisy the term within which repurchase can be made must be as long as possible. In the next place, such a person will be more likely to be willing to buy on terms of indefinite repur- chase, because he will advance the money less from the desire to forfeit the land ultimately than from a wish to help his relatives over a time of distress. Where such a situation exists, then — the family inheritance the only means of raising the money, and a relative or friend indifferent as to the term of repurchase, — the sale for repurchase will always be chosen. Three circumstances tend to show that this was in fact the motive for choice. First, the highest development of that form of transaction was reached in the communities — viz. West Scan- dinavia — where the mobilility of land-capital was least, and where 1 Heusler, I, § 50. 2 " Nu kummet eyn man deme erbe [land] ist anisturben, unde spricht her, ' sy beuoligtt, und meynet, erbe tzu verkummeni * " (Kulm. R. Lib. IV, § 88, quoted by Weisl, 44).