Page:Harvard Law Review Volume 10.djvu/431

405 THE PLEDGE-IDEA, 405 3. The pledgee could follow the hypothec in the hands of a third person, whether buyer or second pledgee.^ 4. When a hypothec had been given, other creditors apparently could not seize it nor a second hypothec be given upon the same res? III. Sale for re-purchase. This form was apparently under- stood,^ and was apparently available for evading the pledgee's duty to restore the surplus; but we are without any evidence as to its history, nor are there any documents to reveal the exact difiference of terms and form between this and the real pledge. IV. Reckoning of profits (Vifgage). The Jewish rules on this subject do not clearly appear; but as we know that, until the rabbis' disapproval of the keeping of profits on industrial and commercial transactions, the pledgee must have kept all the fruits, and as such profit {abakaribith) is in the Talmud still not abso- lutely prohibited except by the opinions of some, we are entitled to infer that the features of the Jewish law were the ordinary ones of a progress from an unlimited enjoyment of fruits by the pledgee to the final duty to restore the excess over a fair gain.* corded was that the creditor took from the debtor the whole of the hypothecated res on default, and therefore (since, as we shall see, he could follow a hypothec into a purchaser's hands) from a purchaser also. The questions that were now discussed were: (i) whether he could take improvements also, or must pay for them; (2) whether growing crops were improvements ; (3) whether the buyer could demand a piece of land, instead of money, for the improvements. The better opinion was that he could take the improvements also without paying for them ; though an apparently later distinction, made by some, would allow him to do this only where the debt was greater in value than the res alone. But that the buyer could pay off the creditor and keep the land was never agreed to : " the buyer cannot keep the field against the credi- tor's will, for the creditor takes it as his hypothec " ; though the contrary view was occasionally advanced (apparently howefer for land taken on execution only, and not for a genuine document-hypothec). Moreover, in all cases, apart from the question of paying for improvements, the relative value of the debt and of the res was treated as immaterial. It was even discussed (R., I, 265, Khetouboth, 92) whether the creditor who went to seize the res in the hands of the purchaser could be forced to accept instead the payment of his claim by the debtor. The custom of marking out the limits of a land-hypothec beforehand (R., Ill, 64, Baba Metzia, 14) was apparently due to the principle that the creditor obtained not merely a lien for a certain value but a right to a specific res. 1 See the citations of the preceding note. But this, as in Germanic law, was not true of movables (R., II, 32, 51, Baba Kama, 12, 33; R., IV, 145, Baba Bathra, 44). 2 R., II, 164, Baba Kama, 36. « R., Ill, 280, Baba Metzia, 65. tation as the command of Jesus of Nazareth, " ^aviiCfrt fx-q^lv dy(Trl(oyT(s.'^ It is enough to say that the original prohibition of gain by mere lending was in the Pentateuch 54
 * The Jewish laws of usury have been the subject of as much difference of interpre-