THE PLEDGE-IDEA, 329 The progress to the later stage, in which the liability is recog- nized as independent of the pledge, came through express contract, i. e. if there had been an express promise (^gelobet) of liability, the res became merely collateral to that.^ I. b. No claim for the pledgee if the res perishes by accident. This feature was long a matter of dispute ; but the work of Mei- bom and of Heusler has explained all the difficulties, and settled beyond a doubt the question of fact.^ The fact is equally clear in Scandinavian law.^ This rule points clearly to the notion that the res is a provisional payment. If the pledgee had been merely compelled to deduct its value from his claim, this result might well have been explainable on some theory of a counter-liability on his part as bailee of the res. But the treatment of the res and his claim as equivalent shows clearly how the res is regarded as meas- uring the claim as representing it, as having in effect paid it by forming the sole resort of the pledgee for satisfaction.* y. The next stage is reached by the aid of an express contract ; 1 In the later records, the independent survival of the debt is of course fully recog- nized, although this does not necessarily indicate that the creditor could look to the pledgor personally. Roughly, there are three stages: (i) to pay oH, per wadium com- ponere, the pure forfeit-idea, and no notion of debt survival; {2) to pay provisionally, the debt surviving, but the res being the creditor's sole resort for payment ; (3) to secure in a purely collateral way. See />ost. 2 Significant passages ; Sachsenspiegel, III, 5, § 5 : " [If a pledged animal dies without the creditor's fault, the creditor] ne gilt es nicht ; he hevet aber verloren sein gelt, dar it inie vor stund, [for it stood in its place to him] " ; Prague Rechtsb. 166 : " Er gilt sein nicht ; er hat ober verloren sein gelt "; Ledebach Privil. : [If a pledged house burns down,] si vero domum suam redificare [sc. pledgor] non voluerit, quod remansit de igni cum possessione dat illi cujus vadimonium prius fuerat, et sic se absoluat; creditor postea, quantumcumque debiti superest, nihil aniplius ab eo extorquere^ secundum nostram justitiam,/f7jj//" (Schulte, 500) ; Statuta Susatica : " . . . relinquet creditor! reliquias incendii vel ruine et fundum pro pignore, sic creditor nil amplius potest petere" (Kohler, 114). The passages are collected in Meibom, 283, 426 ; Kohler, 19, 111-115; Heusler, II, 202; Weisl, 61; Stobbe, Vertr. 263-5. "Ein Haus, ein Brand " was a proverb implying that the risk of fire was on the pledgee : Chaisemartin, Proverbes et Maximes du droit germanique, 223 (1891). For an explanation of the difference between this risk of loss of his claim through provisional payment and the creditor's burden of risk as a bailee, see post.
- Amira, I, 213; II, § 22.
- This notion occasionally finds express mention in the documents: "Verloren se
[pledgee] aver edder ere ammechtlude dat slot [castle] van wanheude edder van unlukke, des god nichl en wille, so scholden se ere gheld in deme slote unde toe dat slot verloren hebben " (Kohler, 114) ; in another document the pledgor promises to help the pledgee recover the castle if he should be spoiled of it, but if the castle should not be recovered, "so scholet ze [pledgee] dat ghelt verloren hebben, dar id en vore satet was van uns, unde vor dcr scholet ze dar nene nod umme liden " (Kohler, 114). 44
