Page:Harvard Law Review Volume 10.djvu/440

414 414 HARVARD LAW REVIEW. money is not paid at. . . then the house which the debtor lives in shall be the pledge of the creditor till payment " ; or, " if, etc., then the slaves are to be delivered to the creditor in full payment, in place of {kuum^ 50 mina of silver."^ Again, the general hypothec (" all that he possesses, both in town and country"), which was in frequent use,^ the generic phrase being the same, seems to have been commonest for purely contingent claims.^ The characteristic prohibition of a second hypothec also appears;* and the peculiar expedient thus required in obtaining a second loan (to be noted later in Greece) is in common use.^ We have practically no evi- dence as to the risk of deterioration and the duty to restore a sur- plus ; but it is difficult to believe that there was any duty of either sort.^ Moreover, though the ordinary deed of sale or exchange regularly contained a quitclaim or aufiassimg clause,^ it seems totally lacking in the pledge, — strongly indicating, since the tool (as used in other communities) for cutting off the redemption- right and surplus-duty was at hand and known to them, that their failure to use it must have been because the rules of pledge did not freely. It may be asserted to be the distinctive earmark of the hypothec, and is found as follows : R. 524, No. 158; 430, No. 90; 445, No. 2; 454, No. 16; 455; 521, No. 90; 528; 519, No. 118; 519. In four documents it also occurs with the above described " rent-interest " clause ; but in two of these (R. 512, No. 22 ; 514, No. 167) it is clear that one res was given in pledge, and the other in hypothec (or a general hypothec) for the rest of the debt or additional security, so that both the clauses would appear in the document;. in the third document (508, No. 36) a gap exists, which probably contained a general hypothec; in the fourth (527), no explanation of the discrepancy suggests itself. In Peiser, 218, the clause occurs (as often above) in a general hypothec. 1 R. 524, No. 158; 528. 2 Examples in R. 430, No. 90; 436, No. 156; 445, No. 2; 450, No. 95; 454, No. 16; 521, No. 90; 519, No. 118; Meissner, 9; Peiser, 218. 8 M. Kevillout speaks of it as often used for sureties and joint obligors (521) ; and his documents show it in use for the wife's dos, e. g. 345, No. 154. ^ Thus (R. 439, No. 114), one who has given a house in pledge for 3 minas has a new lender advance him another mina on the same house ; but in order to accomplish it, the second lender gives the pledgor the amount of both loans ; the latter pays off the first lender, who then transfers the house to. the second lender; so also K. 366, No. 75. That credits and pledges were freely transferable, see R. 45. 6 E. g. one document for a debt of 34 cor of dates and 13 shekels of silver pledges a slave, to be on default the " entire equivalent " of these sums ; and in all the docu- ments of Revillout there is no mention of restoring a surplus or exacting a deficit. In Peiser, 218, a clause provides that the crop is to be sold, and the debt paid out of them ; but this is a solitary instance, and the original text may not mean quite as much. ^ R. II ; 423, No. 170. There was not a literal quitclaim; the seller promised if he reclaimed to pay ten times the price ; and the purpose was to bar his claim.
 * Note 3, p. 413, supra.