Page:Harvard Law Review Volume 10.djvu/427

THE PLEDGE-IDEA. 401 a piece with his duty to return the surplus of the profits above the interest-rate, and the stages of development are similar and almost parallel. Wherever legislation has allowed the pledge without abschlag to survive, it is only on the theory that the pledgee will also have the risk of a deficiency or total lack of fruits, and hence should have the chance of profit along with the risk of loss. Wherever, too, we find historically a reckoning of all the profits upon the capital, without allowance for interest, we are to suppose that it is merely an attempt to evade the canonical prohibition against taking interest, and not that it is a separate type of pledge. To suppose that, as a customary thing, and apart from casual cases of friendship, loans will be made with no charge at all for interest, and that there could be a type of pledge based on that theory, is to suppose moral impossibilities. In short, but for the interest- prohibition, and the effort to evade it, there would have been practically no resort to that particular and extreme form of the abschlag-xdSi^d.cQVi?- 2. Jewish Law.^ I. From the point of view of etymology, the translators give us no material assistance. We do find, however, in unmistakable clearness, the chief marks of the forfeit-idea. I. No claim by the pledge for deficit where the res has perished 1 A conclusion corroborated by the fact that this form of "reckoning" (i. e. *' toiiUs les despuelles [profits] . . . sunt rabatues de la dette "), constantly insisted on in France (Franken, § 8), where the usury-ban was in force, never came to be the law in Germany or Scandinavia, where the usury-ban had little or, no force (Neumann, 72, 183-194; Stobbe, Priv. 270 ; Endemann, II, 339; Amira, I, 201, 661 ; II, 800). 2 In the Jewish law there is often a special opportunity to note the different stages of a doctrine, because the law itself is preserved in three distinct stages, viz. the Pen- tateuch, the Mishna (a kind of codified customary of not later than 300 A. D.), and the Ghemara (a body of commentaries on the Mishna, the commentaries of the Jerusalem school being collected about 400 A. D., and of the Babylon school about 500 A. D.). The opinions of the early rabbis formed the Mishna ; and this again was developed by constant discussion into the body of commentaries called the Ghemara, which purports simply to record the results of one or two centuries of discussion. Moreover, the Jewish law shares with the Roman, the English, and the Japanese the feature of having been developed largely through the discussion of cases and principles and the citation of precedents, — an indication of what may be called the juristic instinct. References: 1866, Mayer, Die Rechte der Israeliten, Athener, und Romer ; 1893, I^loch, Der Vertrag nach Mosaisch-Talmudischer Rccht ; 1888, Schwab, Talmud de Jerusalem ; i860, Rabbinowicz, Legislation Civile du Thalmud. The last two are translations of the Talmud, and are the only satisfactory sources. The citations of the Talmud will here be given from R.ibbinowicz. by volume and page, with the additional citation of the folio of the original books (I3aba Metzia, etc ) as marked in Rabbinowicz.