Page:Harvard Law Review Volume 10.djvu/422

396 HARVARD LAW REVIEW. gested^ that the reason why the latter became popular in Eng- land was that the ordinary pledgee did not have the possessory action; but this does not explain the choice between the two varieties of the sale-form; and more satisfactory reasons might be found, which it would be out of place to discuss here. It is enough to note that this variety of sale-form, which later appealed to the creditor as a means to evade the pledge law, was early popular in Lombardy. IV. Tod-saizung ; or^ reckoning Profits against Capital. I. When the primitive notion of w^<^-payment prevailed, and was natural, no one thought of asking what became of the profits of the thing handed over. The gewere, or possession, of the pledgee gave them to him, just as the pledgor would have taken them by the same token. There is thus no question of " reckon- ing " the profits, or any part of them, against the capital, any more than there is of restoring a surplus; the pledgee simply takes the wed as a provisional substitute for what he would otherwise have had absolutely. But several circumstances later combine to raise the question. First, the notion comes forward of the debt as inde- pendently subsisting as a standard of the creditor's right. Secondly, pecuniary capital comes to be accumulated and used professionally and systematically, and its gains come to be thought of as meas- urable ; so that what a debtor can borrow money for is capable of fairly accurate estimation. Thirdly, with the increase of infeuda- tion, the multiplication of subtenancy and rent charges, and the systematization of taxation, land-values — in terms of rentals and the like — come to be more definite and fixed. All these combine to make the debtor understand the gain that a pledgee can secure merely by collecting the profits of land pledged, and to make him feel that he can afiford to demand terms of the creditor as to the Kmit of this profit. In a given case, then, he may now demand that the profits received above a certain amount shall go to his benefit, — i. e. shall be used to reduce the capital sum for which the land is a substitute. It is in this stage that we find, say, the middle mediaeval law, i. e. there shall be a reckoning of profits against the claim only so far as is expressly agreed.^ In other words, tod-satziing is not a primitive form of satznng. 1 Pol. Sci. Quart., 1896, XI, 541 : " It [the ordinary pledge of realty] became im- practicable in England and had no future there, because the gagee did not have the possessory action." ^ Amira, I,, 20i ; II, § 22; Heusler, I, 143; Meibom, 375, 399.