Page:Harvard Law Review Volume 10.djvu/374

348 HARVARD LAW REVIEW. of personalty was also allowable ; ^ though perhaps not until a late period.^ f. The debtor who gave a hypothec could not, by primitive law during its life give another one to a third person.^ This is a nota- ble feature of other systems of law," and it seems to be explainable on only one theory, viz. that since the res has been dedicated specifically as contingent payment for a possible default, and since (as we have just seen) the creditor-pledgee obtains a title to it pursuable in the hands of a third person, and since on default the pledgee will obtain the whole res as the equivalent of his claim, regardless of any surplus value that may exist, it is impossible to conceive of any other creditor as having a concurrent interest in that res. In short, this well-proven rule is not only consistent with, but is the inevitable consequence of the fundamental forfeit-idea in the wed or satzimg. 2. The hypothec, then, being originally in legal nature nothing but a form of wed or satzung in which the pledgee was not given possession, what were the circumstances to which this form of satzung s^ov( be appropriate? Why and when would this form be used instead of the other ? The answer has already been pointed out, viz., wherever the existence of a claim is not yet cer- tain, i. e. a default is only contingent. The chief cases of this sort, as enumerated by Heusler (147) are: (i) Warranty of title in a sale of land; (2) Rent from a lessee or other rent-grantor; appellare contempsit" (Kohler, 24) ; " Si quis cautionem fecit et non ei obligaverit . . . [not specifically, but merely hypothecating his whole estate, then if one res is sold to a third person,] habeat ipse qui eas emit ; nam si obligatae fuerint nominativae [specifi- cally], non eas possit vindere, dum ipsam cautionem non sanaverit [paid]"; then the commentary to this edict warningly adds : " ita obliget, ' ut eas ies donee redimantur, alienare non possit, creditori proprias factas, si statuto tempore redemptae non fuerint,' " (Val de Lievre, 206,) i. e. the res must be expressly declared to be the credi- tor's (" proprias") in case of a general hypothec. 1 Meibom, 411, 415; Neumann, 197. But it was not known in Sweden: Amira, I, 216. 2 Heusler, II, 201. » Meibom, 429; Stobbe, Priv. 274, 283; Amira, II, § 23 (in Iceland the pledgee might take possession immediately upon the pledgor's transferring to the third per- son); Kohler, 23. A later but transitional stage is seen in the rule that a second could be given only for the surplus-amount over the first; but as soon as the forfeit- idea disappears, and the pure notion of collateral security becomes established, it is perceived that any number of creditors are welcome to take their chances with the res, even though their united claims exceed its value; and so we find (Stobbe, 283) the codifications of the 1500's providing expressly that additional hypothecs are allowable.