Page:Harvard Law Review Volume 10.djvu/430

404 404 HARVARD LAW REVIEW. 1. The regular form of the hypothec was that of a postponed pledge: '* If I do not pay the debt of [naming the sum] in one year, my field shall belong to you." ^ 2. In the hypothec, as in the pledge (as we found in Germanic law), the marked incidents equally prevail of the pledgor's non- liability for a deficit, in case of destruction or deterioration, and the pledgee's non-responsibility for return of the surplus. In the stage of the Ghemara discussions, we find these primitive features being disputed and effaced, in the direction both of the pledgor's deficit-liabiHty,^ and of the pledgee's duty to forego the surplus- value.^ 1 R., Ill, 267, 277, 282 (Baba Metzia, 63, 65, 66) ; I, 370 (Khetouboth, 43). More- over, the deodand rules show the same unity of idea. The deodand (or forfeiture of a harm-causing animal, etc., leaving the owner quit), as is well known, was as marked a feature of primitive Jewish law (Exodus, xxi, 28) as it was of Germanic, Greek, Roman, and others. The Jews divided such animals into two classes (R., II, 49, 54, 164, Baba Kama, 16, 18, 36) ; tham was the animal mansuetce nature injuring for the first time ; pionad wdiS the animal by nature dangerous ; for a thani's injury, the owner paid only one half the damage and with the body of the tham only ; for the tnonaiTs, the whole, and was personally liable for it. The former was called " paying by migoiipho,^'' i. e. by the body of the animal, i. e. as by wed ox forfeit. Now the significant thing is that the injured person's claim in the former case is spoken of and treated as a hypothec; if the ox died or was killed, the injured person is without redress beyond the carcass- value, although he suffers a loss in the diminishing of " the value of his hypothec"; moreover, in the former case (of the tham), if the animal was sold, the claimant could seize it in the buyer's hands (as we shall see he could do for a hypothec) ; in the latter case, he could not follow it. That the hypothec was peculiarly employed for contingent defaults maybe assumed from the circumstances that it was used to secure the wife's dos, and that the ordinary pledge with re-lease to the pledgor (R., Ill, 290, Baba Metzia, 68) co-existed. '^ " If a man binds his field by hypothec to his creditor, and this field is destroyed by a flood. Ami Schapirnaah said, in the name of Rabbi Johanan [i. e. as a disciple quot- ing or speaking for his master], that the creditor cannot pay himself from other goods of the debtor " ; but Rab Nahaman would allow this result only where the debtor had expressly said, " I pay you out of this hypothec only " ; [i. e. only in case of express agreement, — a later stage already noticed in the Germanic law] ; Rabban Simon would allow it only for a wife's hypothec for her dos (R., I, 368, Gbitin, 41). But the first opinion is elsewhere sanctioned (R., I, 54, Betzah, 4). The same primitive notion is betrayed in the rule (R., I, 183, Khetouboth, 56) that the res on which the husband gave a hypothec for the dos received could not be movables, for they might deteriorate in value ; it must consist in immovables, unless the husband would guarantee the value of the movables. In other words, the risk of deterioration was on the hypothecary, in the absence of express agreement. The custom of appraising the dos at the time of giving a hj'pothec for it (R., 192, Khetouboth, 66) is one found in other laws, and seems to be based on the notion that the res then set out as the equivalent of the dos is the absolute and sole resort of the hypothecary, at whose risk it deteriorates in value. 3 R., II, 383 (Baba Kama, 96) ; III, 64, 75, 310, 448 (Baba Metzia, 14, 15, 72, no). The original notion evidently prevailing up to the time of the discussions here re-