Page:Harvard Law Review Volume 10.djvu/439

THE PLEDGE-IDEA. 413 sistent with a relatively primitive set of ideas. A few marks of these may be observed. The generic term, in the first place, for pledge and hypothec, was the same, — maskanu} Furthermore, the 7'es is always said to be " in place of" {kuum) the thing owed.^ The form of the hypothec ^ is that of a suspended pledge: '* If the by comparison of these can a few generalizations be reached. References are as follows : — 1877, Documents juridiques de I'Assyrie et de la Chaldee, Oppert et Menant (" Chaldea " will here be used as including Chaldea-Babylon, and the later Assyria- Nineveh) ; 1893, Beitrage zum babylonischen Privatrecht, Meissner ; 1896, Samm- •lung V. Ass. u. Bab. Texte, B. IV, Texte jurist, u. gesch. Inhalts, Peiser; 1886, Les Obligations en droit egyptien, Eugene Revillout ; Appendix (paged continuously), Le droit de la Chaldee, Victor' Revillout. The last work is the most useful, because it contains the greater part of the pertinent documents. The reference here will be to " R.," followed by the page, and by the number of the original document (as cited by M. Victor Revillout), from M. Strassmeyer's edition (untranslated) of the British Museum collection; where no number is added, the document is usually an unpub- lished one of the Louvre. The comments of the learned brothers Revillout are unfor- tunately here of no service, as they have not studied the documents from the present point of view. Moreover, their work is of very different value ; for the first above mentioned neglects usually to cite the source of the original text, and gives most of his space to adulation of the Egyptian law and speculation as to its influence upon the Greek and Roman law. The work of Oppert and Menant is to some extent untrustworthy ; e. g. it translates htibidli as pigmis, while the word certainly means only " interest." Meissner has only a few pledge-documents. There are other trans- lated collections, but they seem to have nothing useful. Nothing will here be attempted for the law of Egypt ; for, in spite of the greater abundance of general material for the student of institutions, the published pledge- documents are as yet few. 1 See the documents in Revillout, infra ; Peiser, 176, 184, 202, 218, 223. Oppert and Menant, in a Chaldean phrase-book, wrongly translate hubulli zs, pignus (20, 22) j their tnanzazanu (14, 22) is evidently an erroneous decipherment of maskanu; another word, buhi (35, 138), probably means "loan," and their rendering seems unsafe. 5J As almost every document in Revillout shows. 3 The phrase ina pant (" ^ sa face ") seems to indicate possession, and when said of the creditor, his possession, i.e. a pledge proper: R. 429, No. 176; 452; 366, No. 75 ; 435, No. 26 (" until the creditor receives the money, . . . the house shall be ina pant") ; 436, No. 156; 452 ; 508, No. 36; 509, No. 135. For the hypothec, insatgil or ttisaggil, "confide," sometimes occurs with kutim : R. 345, No. 154; 347, No. 55. That kniim was equally used for hypothec and pledge proper appears from its use with, e. g. the hypothec for a wife's dos : R. 345, No. 154. — The distinctive mark of the pledge proper seems to be the clause : " There is no rent for the house, and no interest on the money," which assumes the pledgor to be using the money and the pledgee to be using the house; it occurs as follows: R. 435, No. 26; 440, No. 114; 454, No. 16; 504, No. 26; 507, No, 59; 509, No. 135; 510, No. 68; 514, No. 114; Peiser, 203, 223. On the other hand, the hypothec is characterized by a clause for- bidding a second hypothec : " No other possessor shall put his hand on the res till the creditor receives his money." This phrase cannot apply to the pledgee's possession (i. e. forbidding him to alienate), because, as we shall see, the pledgee could transfer 55