Page:Harvard Law Review Volume 10.djvu/425

399 THE PLEDGE-IDEA, 399 fixed rent to pay the principal sum. Here, also, as just suggested, the fictitious increase of the principal might enable the pledgee to secure in reality both principal and interest. But, apart from this,^ the purpose of the pledging of a rent was not regularly, perhaps not even usually, to pay the principal sum ; it was constantly used, on the contrary, merely to supply the interest, while leaving the principal sum standing for later redemption by a payment indepen- dent of the rent.^ That is, the equivalency was between the rent and the interest, not the rent and the principal sum regarded as payable by instalments. ^ In the cases, then, where the entire profit or a rent charge is to be applied to the principal without mention of interest, there is not necessarily a new variety of pledge; the notion of abschlag is merely employed to evade the prohibition of interest (where that prevailed), and the transaction may be in fact essentially the same. 3. In the mere methods of abschlag^ then, or in the fact of its use, there is nothing essentially different in the theory of the pledge. It is the res that represents the principal sum, as ever. The view of Franken,^ that the satzung with pledgee's use and an abschlag is essentially a mere transfer of use or usufruct, is there- fore not a necessary consequence of the abschlag feature in itself. But there are further indications, of a positive and not merely a negative bearing, that the provision for abschlag is merely an incidental feature in the growth of the ordinary wed pledge. (i) In the first place, we find the abschlag treated in the docu- ments on the same footing as other provisos, such as the pledgee's duty to restore surplus, or his claim for deficit.^ That is, at certain stages of the development (as already explained) towards the pure shall continue till the whole sum is paid. Here, obviously, the last 50 pounds might be purely fictitious, so that the " alles abslahen," even of the entire income, might be made to pay the real debt and a good interest also. 1 " Decimam vinearum [naming pledgor] in vadimonium posuit pro XV^"* solidis [naming pledgee], tali facto ut quando [pledgor] XV'°=» solidos reddere vellet, decimam libere recuperaret " (Kohler, 95, also 105). The nature of the transaction is clearly brought out by such agreements as these : For 50 marks capital, a rent of 5 marks is granted, and " as soon as we the pledgor pay 25 marks, the rent to the extent of 2 pounds is released to us " (Kohler, 243, also 107). 2 His book deals with French law, but he seems evidently of the opinion (142, 186, and elsewhere) that his conclusions are also valid for the pure Germanic law. 8 Thus : "uns;erechent, ind up yre kost, wynnonge, ind verluyst'^ (Kohler, 133) ; " nee computare nee respondere nobis tenebitur" (Id.); a provision for non-accounting for profits, followed by a provision for restoring on default the surplus value of the res (Id. 88).