Page:Harvard Law Review Volume 10.djvu/421

395 THE PLEDGE-IDEA, 395 tion should be scaled down ; that is to say, if the transaction had been in reality a sale and not the covering of a debt. The process of defeating the creditor in his new attempt, by altering the form of the transaction, to evade the law of pledge became, as we know, a notable feature of English mortgage law. The German law solved the problem in its own way;^ but it is enough to note here the part which the kauf atifwiederkauf^Xdiy^dy in its relation to the pledge, in the later medieval law, and the form in which history presented the problem to modern law. One thing only remains to notice. The kazif auf wiederkaiif is the natural and chief type of the sale form as distinguished from the pledge form. But there is a subsidiary form, which, as Brun- ner has pointed out,^ must be distinguished, — the sale on condition subsequent. This form was particularly popular in Lombardy,^ and also in England. In one variety, it merely requires the re- turn of the carta, or deed, on payment of the sum.* In another, it provides that the deed shall be null, and, sometimes and inci- dentally, returned.^ The legal difference seems to be simply that in the kauf auf wiederkaiif the revesting of title on redemption requires a new and distinct transfer, while in the other form the act of payment ipso facto revests the title. Brunner has sug- 1 Whether a transaction is to be treated as a genuine sale for repurchase or a giv- ing of collateral security only is to depend, according to the Motive of the new Code (II, 340), on the circumstances of each case. In the Gewerbe-Ordnung, regulating the trade of pawnbroking, it is provided (§§ 34, 38) that "the professional purchase of personalty with reservation of the right to repurchase shall be treated as a business of pawnbroking." 2 Rechtsg. Urk. 194. 8 Kohler, 40, 94 ; Heusler, II, 136. Natigerius vel siJos heredes fecit sanacioneni de suprascripti denarii. . ., reddere debet Dadolo vel suos heredes ista cartula rasa sub pena dupli " ; then a liybrid clause not invaria1)ly present : " et si . . . non fecit sanacionem . . ., deinde in antea ista cartula vendicionis firma et stabile permaneat sub pena dupli " (Kohler, 357). venditionis quam in vobis amisit de petia una de terra, capsatam et taliatam tit in se nullum obtineat robur''^ ; again, " [After a sale clause], Ista carta facta est eo tenore : si ego . . . vobis . . . parati fuerimus ad dandum, . . de argento [amount and date] . . ., quod sit [carta] inanis" (Val de Lievre, 29, 33; in the Italian practice, this passage commonly formed a separate document from " ista carta " of sale) ; " Ista ven- ditionis carta, nomine pignoris, tali tenore facta est quod qualicumque die ab hodie usque ad duos proximos annos A. reddiderit fratribus solidos mille, tunc ista venditio et carta resolvatur, reddatur, et nihil valeat" (Heusler, II, 136). There were other varieties also, some of which more or less distinctly referred to the transaction as " pignus."
 * "Fecit Natigerius . . . cartulam vendicionis in manu Dadolo . . . si predicto
 * " Promitte . . . quod si P. . . . sanationem [debiti] fecerit,r^a'<:/rt//j si r^r/aw ///«/»