Page:Harvard Law Review Volume 10.djvu/428

402 402 HARVARD LAW REVIEW. by accident or has deteriorated. According to the Mishna, the pledgee was as bailee responsible for all loss (including theft or destruction) short of the act of God or an enemy, or other inevitable loss, i. e. a stage somewhat beyond that of the primitive Germanic law.^ Here as there, the inability of the pledgee to recover his debt after a loss of the pledge might perhaps be attributable to his liability as bailee, but for two circumstances; viz., that the pledgee loses his whole claim (and not merely the value of the res), and that the equivalency of the res and the claim are expressly predicated.^ 2. No duty of the pledgee to restore the surplus. This also is perfectly clear as the starting-point of the Jewish law; but as most of the passages deal with it in connection with the hypothec and the aiiflassimg-cXdiUSQy we may postpone it for a moment. 3. The atiflassimg-cldiXxsQ or forfeiture-clause (/or commissorid) was evidently resorted to in the same way as in Germanic law. 1 R., Ill, xxxiv, 23, 357, 377 (Baba Metzia, 5, 80 ff., 93). There were three degrees of responsibility: (i) bailee without pay {schomer htnam); (2) bailee for pay [schotner sakhar, with whom usually ranked the sokher or hirer) ; (3) gratuitous borrower {schoel). The first was responsible only for loss by fault; the second, for loss as above limited ; the third, for all loss. 2 At the time of the Ghemara, Rabbi Eliezer advanced the proposition (Baba Metzia, 357) that the pledgee should be put in the first class, i. e. on proving himself not in fault, he " might demand payment of the debt." But on the opposite side, R. Akiba claimed (R., Ill, 366) : " The debtor may say, * Your loan was merely on this pledge ; if the pledge is lost, your money is lost ' "; i. e. R. Akiba was for standing by the older Mishna rule. But R. Eliezer was willing to concede that, " if that pledge was given after the loan was made," then " if the pledge was lost, the money was lost," for there the equivalency would be perhaps clearer. Still another distinction was tried ; R. Samuel had illustrated the Mishna rule by saying : " If a person lends to another 1,000 zoiizes on a res, and the res is lost, the claim is lost, in spite of the excess of value [of the claim] " ; and the later rabbis now attempt to refine away the Mishna rule by suggesting that it applies only where the res is more valuable than the claim, and not where the loss of the res still leaves, if set off, a deficit in the claim ; i. e. they were advancing the notion which we have already seen carried out in the later Germanic law. There is one passage looking the other way (R., Ill, 161, Baba Metzia, 34), in which it is disputed whether the pledgee, by taking an oath that the loss is not his fault, may recover the deficit from the debtor; this is easily explained as rej^resenting a later stage of discussion, when R. Eliezer's view had prevailed. An illustration of the primitive principle is found in the discussion and affirmative settlement (R., Ill, 23 t, Baba Metzia, 48) of the proposition that a debt larger than the res in value is extinguished in the schmitah or seventh year (according to Deut. xv, 1-6: " At the end of every seven years . . . every creditor that lendeth aught unto his neigh- bor shall release it ; he shall not exact it, etc.") ; the very question is evidently a prod- uct of a new collateral-security idea ; for if originally the debt had been treated as surviving the pledge-transaction, it would as of course be extinguished in the schmitah ; the question's discussion in the Talmud times shows that the idea of the debt as inde- pendent of the pledge was then novel, and hence the applicability of the schmitah rule had just occurred to the minds of the rabbis.