Page:Harvard Law Review Volume 10.djvu/426

400 HARVARD LAW REVIEW, idea of collateral security, these matters had to be expressly pro- vided for, and, along with these, the notion of " reckoning " sur- plus fruits on the capital, which was equally a step towards the collateral security idea, was treated in a perfectly natural way as one of the germane matters to be settled beforehand. So also a forfeiture-clause (the mark of the forfeit-idea) will be found side by side with a clause dealing with the ahschlag} (2) Just as the forfeit-idea was got away from by agreements that the pledgee should not keep a surplus, and the pledgor should pay the deficit, the one being in a sense the complement of the other, so the abschlag-di^x^Qvcv^x^X.^ which did away with the exces- sive profits otherwise to be made by the pledgee, had its comple- ment in the shape of an agreement by the pledgor to make up any deficiency of the fruits below a certain rate.^ In other words, the notion that there should be a limit of interest-profits, beyond which the pledgee could not keep them with fairness, could not be reached without reaching also the notion that a deficiency below that rate should be made up to him by the pledgor. (3) Except for the case of rent (above explained), the pledge is of the reSy not the fruits ; and in all the minor and indescribable features of phrase the pervading spirit of the documents is that of the ordinary wed. Looking at the satzung with abschlag, or todsatzungy then, in the light of the general notion of wed or satzung, it seems to be nothing more than the ordinary satzuitg with a feature represent- ing the progress towards the idea of collateral security, i. e. with a limitation upon the pledgee's rights, based on the notion that the principal debt and its interest form the standard of claim, for the sake of which the res is to him merely a collateral security, and beyond which he should keep nothing. The duty of the pledgee to return the surplus of the r^j-value above the principal sum is of 1 " Impignoravimus tibi . . . , et fades de istavinea quid de fructum exieritquicquid facere valueris, usque in tercio anno, et si a tercio anno non potest adinplere ipsum precium in ipsa convencione, ipsa vinea permaneat . . ." (Kohler, 91, also 87). 2 Thus : " Impignoro vobis curtilem unum [describing it] pro solidis XV, eo tenore ut tandiu predicte ecclesie monachi ipsum curtilem teneant, donee ipsum debitum persolutum est ; ita tamen ut singulis annis tres modios et dimidium de vino eis reddatnr [i. e. as interest-fruits], et si in ipsa vinea tantitm non habtierit, ex meo alio tatitum fersolvam" (Kohler, 91); " impignoramus vobis . . . ut tamdiu teneatis vos banc terram quamdiu reddamus vobis hoc pretium ; et ipso anno quo hec terra non reddiderit fructum, nos persolvamus vobis umim modium vini'* (Id. 92) ; a pledge for 700 marks, with 70 marks annually as a first charge on the fruits for interest, and other charges up to 250 marks ; if more is yielded, a reckoning upon the capital; if less, the pledgor will make it up (Id. 106, also 116).