Page:Harvard Law Review Volume 10.djvu/436

410 410 HARVARD LAW REVIEW. or, " If I fail to pay at the appointed time, the property is to be yours, and is to be transferred to your name on the register " ; ^ the latter employing the later forfeiture-clause.^ It is clear that the original usage, as seen surviving in a few places,^ was to forfeit absolutely on default, without regard to surplus. But a later stage is the more common one recorded, in which the property on de- fault is sold and the creditor paid out of the proceeds.* The records of customs do not throw much light on the corresponding development of the pledgor's duty to pay the deficit; but the single express mention of the subject^ reveals the pledgee's duty to restore the surplus already reached while the pledgor's deficit- liability is still unrecognized, — as in Germanic law. In the judicial precedents of the Shogunate the same stages of develop- ment are represented.^ It thus appears that, both in the Shogun- ate judicial rules and in the local customs, the idea of collateral security had developed much faster for the hypothec than for the pledge ; ^ and the extent of this recognition may be judged from 1 VI, c. IV, § I, MS. 2 Here, too, as in the ordinary pledge, appears the same necessity for curing the defect of title by special quitclaim clause or deed; thus (II, iii, Higo) : "It is a regular stipulation in instruments of hypothec that the debtor shall make no objection if on default at the end of the term the creditor assumes possession of the property " ; {II, 103, Echigo) : *' In case of default the land becomes forfeit, and an instrument of forfeiture is delivered to the creditor by the debtor, the former thus obtaining com- plete and perfect ownership of the land"; so also II, 93, Owari. The legal cut-off;^ after a certain period, is also found : II, 106. ^ II, TOO, Shimotsuke ; lor, Rikuzen ; 103, Echigo; 106, Aki ; iii, Satsuma. said that either forfeiture or sale takes place according to agreement, i. e. an interven- ing stage of development); 106, Suwo; 107, Kii; 108, lyo. 6 II, 107, Kii. feited on default, and no account rendered; but in subsequent regulations (ib,, § 3) there is to be no forfeiture in the hypothec. The theory of the transaction is well shown by a lengthy controversy over the question whether the hypothec-r^j of an absconding bankrupt (a criminal) could be confiscated to the State as the defaulter's property, or whether the pledgee could claim it as forfeited; in 1751, and later, it is confiscated, on the former theory (ib., §1), sold, and the government-fine and taxes paid out of the proceeds, the pledgee getting his claim out of the remainder so far as suffi- cient (ib., dated 1840) ; though the special custom of Osaka was there allowed to prevail, by which the res was handed over to the pledgee on the theory that it was his, not the pledgor's (ib., § i, as late as 1837). J It is for this reason that we find much said in the precedents about the pledge with re-lease (VI, c. IV, § i, 2, MS.). When pledgees found that the forfeit-idea was disap- pearing, to their disadvantage, in the kakiire-shichi, they began to attain their purpose by taking an ordinary shichi and then giving a lease {kosaku) back, leaving the pledgor in possession ; this was sanctioned. Then they merely put a lease-clause in the origi-
 * II, 93, Ise ; 100, Iwaki, Iwashiro ; 102, Echizen, Echu ; 104, Tango (where it is
 * • As late as 1729, in house hypothec at least (VI, c. IV, § i, MS.), the res was for-