Page:Harvard Law Review Volume 10.djvu/420

394 394 HARVARD LAW REVIEW, the primitive integrity of the family estate was maintained long- est and strongest; and it was smallest in the communities — viz. France — where the opposite conditions prevailed. Secondly, occa- sional passages show that this was in truth the motive for such transactions.^ Thirdly, the process of the compulsory cutting-off of the transferor's outstanding right of redemption in case of an indefinite term, which we find fully recognized in the earliest Scan- dinavian records, was much later in being reached for the ordinary sale for repurchase, and in the Middle Ages is not reached at all for the staninigiit or family-inheritance, which could be redeemed indefinitely at an era when a limit of twenty years was legally fixed for the repurchase of other lands,^ — indicating that the sale for repurchase must have been the pecuHar and legally favored rescrt of distressed families at a time when their redemption-right for an ordinary pledge could have been cut off in a limited time. Such, then, seems the probable early motive for a choice, in cer- tain conditions, of the sale for repurchase as against the pledge. 3. In later times, this motive would prabably grow less. But by the later Middle Ages a new reason of preference, for the creditor at least, had sprung up. When the main mark of the collateral- security idea in a pledge — the restoration of the surplus — had become sanctioned by custom, and when the creditor, after finding that an aiiflassu^ig-cXdiUSQ in advance would enable him to evade coming into court and restoring the surplus, was after all being compelled to come into court and perform this duty, in spite of the auJlassimg-cXdiXxsQ (or lex commissoria) — say, in the 1400's and early 1500's, — he now found, or thought that he had found, an ark of refuge in the sale-for-repurchase form of transaction. This was not on its face a pledge, i. e. there was no principal debt to form a standard of liability and to determine whether anything or how much should be returned as a surplus, and hence there was no reason to say that the value retained by him on default of redemp- 1 For example, in the Gotlandslage (Amira, I, 209) we read : " When necessity begins to compel to alienate the land for the maintenance of the family before all the children are of age, there shall be transferred {festa) the share of each, but not by perpetual sale {fastu seiia)." In mediaeval Japanese deeds a common phrase at the opening is : " This land has been owned by my ancestors for many generations ; but now, owing to pressmg need, it is transferred to the present purchaser for a price " (Wigmore's Notes to Dr. Simmons' Land Tenure, etc., Trans. Asiat. Soc. Jap., XVIII, 163). It is, indeed, by an observation of the clear facts of feudal society in that community that the writer has come to believe that a similar explanation is to be found for the kauf auf wiederkau/m the Germanic Middle Ages. 2 Amira, II, § 69.