Page:Harvard Law Review Volume 10.djvu/358

332 HARVARD LAW REVIEW. to obtain a res much in excess of his claim, and hence the case of a surplus was forced oftener than the reverse case upon the com- munity's thoughts; and, secondly, the fairness of the pledgee's returning the surplus could be worked out on the theory merely of the pledgor's right to redeem (i. e. if he had paid cash to re- deem, he would have got back this surplus value ; hence, why not assume a redemption per rem ipsam, and give back the surplus, leaving the pledgee no worse?), while the pledgor's duty to make up a deficit could not be appreciated until the independent sur- vival of an obligation, alongside of the pledge, had been fully recognized in thought. These four features, then, just described, seem to mark as clearly as anything can the theory of the transaction of ved, wette^ satzung, as that of a redeemable forfeit or provisional payment. In all four there is a gradual change to the notion of modern times which looks on the debt as continuing in full force, and the res as handed over purely as an auxiliary resource for the creditor.^ We are not to seek in the law of pledge itself for the reasons of the change. The change came about as soon as the community recognized credit widely and developed varieties of obligation and forms of action for them ; but this was an independent process. As soon as there were many ways of creating a principal debt, and of enforcing it without a wette, then it could be seen that the wette need only be collateral and not substitutive. But this would take time to see, and meanwhile the old traditional rules of wette would persist by mere inertia. Thus it is that we find some of them 1 It should be noted here, as to the feature i a above, that the views of Heusler and von Amira differ. Tlie view of the latter (I. 206) is that after receiving the ved the creditor has no claim {forderungsrecht) of any kind left against the debtor ; and this is also the doctrine of von Meibom (274). The former thus answers it, and states his own view (II, 133) : "It is here overlooked that the ffand% only a potential [eventu- elles] equivalent for the debtor's performance, i. e. is given on the condition that pay- ment do not ensue. But this assumes in itself the survival of the creditor's claim. . . . It does not alter the matter that he cannot bring an action for payment; the reason that he cannot is, not that he no longer has a claim, but that he has already in hand his potential means of satisfaction, and thus can of course no longer demand that which already he has provisionally received." Kohler (99, 100) takes the same view. The solution of this difference seems to be that each lays stress on a different stage of development. In the primitive notion of wette, there is no more of a surviving debt or obligation than there is to-day in our bet with stakes ; but in the course of develop- ment the independent survival of the debt becomes more and more emphasized ; and one of these stages of transition (and an early one) might undoubtedly be expressed in the language of Heusler, though the view of von Amira more accurately represents the primitive stage.