4l6 HARVARD LAW REVIEW, value of the res only;^ while in the other three systems the loss of the res leaves the debt still existing.^ There is no direct evidence as to a duty of surplus-restoration ; but the pledgee's title did not become absolute /^r j^ on default, and we find that a judicial order was necessary to make a sale by him valid,^ and also that the for- feiture-clause and the sale-for-repurchase {bye-al-wufd) was well known as an expedient for evading this necessity;^ so that we can scarcely doubt that it was used to evade the surplus-restoration, at least in those systems in which the pledgor was liable for a deficit, and especially as we do there hear of a prohibition of the forfeiture-clause.^ The hypothec was employed, the same generic term being used ;^ and a second hypothec was unlawful^ The matter of the pledgee's accounting for profits is confused by the strict prohibition (similar to that in Jewish law) of interest of any kind ; and no clear indications appear.^ 7. Hindu Law.^ A few significant features are ascertainable, (i) There are many passages in the Sutras discussing the loss of the res as affecting geeree) ; 1885, Kohler, Zeitsch. f. vergl. Rechtsw., VI, 208, Islamitische Obligationen- und Pfandrecht ; i860, Tornauw, Le Droit Musulman ; 1886, Nauphal, Cours du Droit Musulman, Part I ; 1882, Van den Berg, Minhadj At-Talibin. 1 Kohler, 222 ; but Baillie (807) and Tornauw (172) speak of the risk as unqualified. 2 Van den Berg, I, 431 ; Kohler, 222. 8 Kohler, 226 ; Tornauw, 172 ; Van den Berg, I, 431 ; they do not agree in the precise mode of stating this.
- Baillie, 807; Kohler, 227 ; Tornauw, 172.
^ Van den Berg, I, 431.
- Tornauw, 129. Kohler, 227, thinks it does not exist ; but Tornauw particularly
repudiates this fallacy. The form of a lease back to the pledgor was also known : Tornauw, 170; Van den Berg, I, 431. ' Van den Berg, ib. ; Kohler, 227 ; Tornauw, 175, semble. ^ See Kohler, 225. ^ The Hindu sources are chiefly one Sutra (Vishnu) or book of the law, and five Sas- tras, or commentaries on Sutras; the references are to the following editions : Vishnu, Jolly, in Sacred Books of the East, vol. VII ; Gautama, Biihler, ib., vol. II ; Manu, Biihler, ib., vol. XXV; Narada, Jolly, ib., vol. XXIII ; Brihaspati, id., ib. ; Yajnavalkya, Roer and Montrion, 1859; the first two represent 100-300 A.D., the others 500-600 A.D. There are also a few translated commentaries (usually mere collections of earlier pas- sages from the above different schools) of early modern times : 1863, Vivada Chintan- rani, tr. by Vachaspati Misra ( 1420 circa) ; 1865, Vyvahara Mayukha, tr. by Nilakamtha Bhatta {1400-1600). The drawbacks in this field are: (i) the sources are almost exclusively brief passages from the primitive books, with no comments or documents ; (2) the translators seldom furnish the technical words of the vernacular, so that no testing of their work or independent judgment is possible ; (3) the curt and obscure terms of the vernacular often make the translation a mere choice of hypotheses, and
