Page:Harvard Law Review Volume 10.djvu/429

403 THE PLEDGE-IDEA. 403 The primitive notion of the pledge apparently allowed the pledgor, as in Germanic law, to redeem without Hmit of time.^ But pledgees resorted to a form which seems to have exactly the same significance as the auJiassung-c.iSQy and this was, in the Mishna era, lawful : — r "If a man lends money to another on his field, and says to him, 'If you do not pay me the debt three years from now, the field shall belong to me,' in this case the field belongs to the creditor, if the debtor does not pay. This was the ruling of Baithous, son of Zonin, with the assent of all the doctors of the law." ^ By the time of the Ghemara, a later stage of opinion had been reached, and the view that the pledgee should be compelled to re- store the surplus, or — what was almost the same — allow the pledgor to redeem in spite of the forfeiture-clause, was being advanced and had almost prevailed.^ We see here ample evidence that ori- ginally the res went in whole to the pledgee as an equivalent or forfeit, without regard to the surplus; that when the duty to re- store the surplus was recognized, the pledgee's method of evasion was to employ a forfeiture-clause ; and that finally the duty to restore emerges again successfully in opposition to this clause. II. The hypothec, or pledge without pledgee's possession. The discussions of the rabbis show clearly enough that the hypothec was no different institution from the pledge, but was merely a postponed pledge, bearing all the peculiar marks of the forfeit-idea, and show the same stages of development. 1 The custom of the district of Nehardea was to preserve the right of redemption forever, though a limitation to twelve months was claimed ; the Ghemara decided (Rabbinowicz, III, i66, Baba Metzia, 35) that the custom was right, except that it should not apply to purchasers from the pledgee. We see here the process, found in Germanic law, of an originally unlimited redemption, cut down later in order to give the pledgee the power of disposal. 2 R., Ill, 277 (Baba Metzia, 65). Another form, already seen in Germanic law, pro- vided that the pledgee should, on default at maturity, be regarded as buying the les from the pledgor for the amount of the claim ; but by the time of the Ghemara this also was disputed as improper (R., 279, Baba Metzia, 65). 8 Citations in preceding note. The Ghemara discuss this passage of the Mishna, and their opinions are divided. One distinction proposed was that the rule should not apply if the agreement was made after the loan given ; but " Rab Nahaman said that, even though making it only then, the creditor could obtain the whole field." Yet, " later, Rab Nahaman changed his opinion, and said that, even if he makes the agree- ment at the time of the loan, the creditor does not get the field." The opinion of Nahaman was the weightiest of the time, and the great majority agreed with him. The doctrine of asmachta, or usurious gain, as here applied to this transaction, is said by Mayer (§ 196) to have been first invoked by the Babylonian school in the 400's; indicating the relative lateness of the resort to it, here as elsewhere.