326 HARVARD LAW REVIEW. culties, and the French, as involving an acquaintance with the Roman. ^ Germanic and Scandinavian Law.^ I. The Forfeit Idea, in general. If the idea above described was that which marked the transac- tion of primitive times, — the idea of forfeit or provisional satis- faction, — what would be some of the legal consequences in the relations of the two parties? Certain main features would surely be found. A. I. If the pledgor chooses not to pay (redeem), the pledgee 1 Until Heusler, the true significance of the Germanic pledge law, in spite of much research and discus'sion, seems not to have been appreciated. In 1867, von Meibom had established the chief data so as to clear away most previous errors of fact; but he saw in the transaction only an " exchange," and this prevented him from understand- ing the complete relation of the facts and their historical changes, and it particularly misled him as to the hypothec. In 1882, von Amira clearly worked out the chief data for Swedish Scandinavia. But Heusler (in his Institutionen, 1886) was the first to advance the forfeit-theory for Germanic law, and to state all its bearings, and his analysis (though accompanied by little evidence) is irresistible in its plausibility and its harmony with the evidence elsewhere abundant. The statement in the following pages is substantially an adaptation of Heusler's theory; though the mode of pres- entation is different., and his theory is not to be held responsible for all the arguments here advanced in its support (especially as to the relation between the allflass^lng-Q■^i^%Q and the evasion of the duty to restore the surplus, which does not seem to have at- tracted his attention). Almost all of the passages quoted in illustration have been culled for the present purpose from earlier publications whose authors knew nothing of the forfeit-theory. In 1895, von Amira (in his second volume), writing in the light of Heusler's pub- lished view, found it amply confirmed and proved it to be the key to the West Scandi- navian development. But outside of these two fields, the forfeit-idea as the key to the history of the pledge idea seems never to have been advanced for any system of law, not even for the Roman ; and it will be the purpose of a later article to test its validity for other systems. 2 The references that follow are to these works: %ii,Stobbe, Deutsches Vertrags- recht; 1875, I^-» Deutsches Privatrecht, II. i ; 1865, Neumann^ Geschichte des Wuchers in Deutschland ; 1867, ?:^. /T/if/^i^w, Deutsches Pfandrecht ; 1867, ^t;-^w, Pro- zess der Lex Salica (tr. Thevenin) ; 1875, ^^ ■> ^^echt der Eheschliessung ; 1873, Schidte, Lehrb. der Deutsches Reichs- und Rechtsgeschichte ; 1874, Endemann^ Roman.- Kanon. Wirthsch.- u. Rechtslehre [really. Die Wucherlehre] ; 1877, Val de Lievre, Launegild und Wadia; 1879, Franken^ Franzoaisches Pfandrecht im Mittelalter; 1880, iffr«;z«^r, Rechtsgeschichte der Romischen und Germanischen Urkenden; 1892, Id., Deutsche Rechtsgeschichte; 1881, Weisl, Deutsches Pfandrecht bis zur Reception; 1882, Kohler, Pfandrechtliche Forschungen ; 1883, Esmein, £tudes sur les Contrats dans le tr^s-ancien droit fran9ais; 1885-86, Heusler, Institutionen des Deutschen Privatrechts ; 1893, IVodon, La P'orme et la Garantic dans les contrats francs; 1882-95, ^- Amira, Nordgermanisches Obligationenrecht : I. Altschwedisches R.j II. Westnordisches R.
