Page:Harvard Law Review Volume 10.djvu/435

409 THE PLEDGE-IDEA. 409 This force to the forfeiture-clause was given as late as 1783 in the Shogunate courts.^ But in a discussion towards the end of the century 2 the injustice was noted of forfeiting land excessively- greater in value than the debt, though the document was still re- garded as controlling; while by the early 1800's we find it settled that, on the bankruptcy of a debtor, a pledge must be sold and the surplus handed over to the second creditor.^ The modern point of view had probably been reached by the Shogunate courts in this century, though we have no record of it, and though the local customs still show the old idea continuing in full force at the Restoration. But in the hypothec, to which we now turn, the result had long been reached. II. The hypothec amply appears to have been originally of a piece with the pledge.^ Moreover, the notion seems to have been precisely that of a contingent pledge.^ The form was: " If I de- fault in payment, the land shall be transferred to you as pledge,"^ a special deed of forfeiture [or release] must be given to the creditor by the pledgor. If now a pledgor demands the privilege of redeeming land long before forfeited, but for which a release-deed has never been given, what should be the decision ? " An- swer : " The land is not to be treated as the absolute property of the creditor, and may be redeemed; because, if no release-deed has been given, it is not an absolute for- feiture, in spite of the clause that the land should be forfeited and in spite of the lapse of time." But in 1733 i^^-) ^^ ^^^ ^^ Supreme Court refusing to allow a redemption after default where the nagare-ciW^t. exists in the original deed of pledge ; and in a later document (ib.) we find a clause that the pledgee should own forever on default treated as sufficient to cut off redemption. Where neither clause nor release-deed existed, the legal ten-year limit would apply (ib.). 1 VI, c. IV, § 2, MS. 2 VI, c. IV, § 3, MS. 8 lb., for Osaka, by 1790 ; III, 75, 209, for elsewhere, a little later. in the next place, the terra shichi alone was used in several old-fashioned provinces, even where the pledgor retained possession: II, 102, Wakasa; 104, Sado, Idzumo, Hoki ; 107, Sanuki; 109, Hizen ; no, Higo ; 92, Settsu. ^ In the term kaki-ire (often used for short, instead of kaki-ire-shichi), ire is " put," " place " ; the ire being the generic verb, as in shichi-ire ; German setzen^ Greek rie-rtfii, Latin ponere. The kaki is now written with the ideograph for " write," and on its face would mean the written document or register-entry. But a document or entry was equally customary for the ordinary shichi (II, 2 if .) ; and there would be no reason whatever for distinguishing the former as "written." Now kaki also means (in an- other ideograph) "hang," "suspend"; and as the common people go much more by the spoken word and the syllabary than by the ideograph (which is like our Latin- derived word), it is perfectly possible for the original word to have become mis-written. Moreover, in Yamato, the oldest and most classic province, we find the customary term (II, 91) to be kari-kakitsuke-kaye^ meaning exactly " provisional " or " contingent alteration of the register." • VI, c. IV, § 3, MS.
 * In the first place, the word was originally the same, i. e. kaki-ire-shichi (II, 91, 93) ;