330 HARVARD LAW REVIEW. i. e. the pledgee can claim nothing, unless the debtor has otherwise promised (in the common phrases, " ere vorwort ne sy anders," " ire gelovede ne stunde [settle] den anders "). This is the first step towards getting away from the primitive rule; the step being taken, of course, at different times in different communities.^ y^ . Finally, that which at first needed to be expressly provided for in the contract becomes the general rule without express pro- vision, and the accidental loss of the res does not bar the pledgee's action.2 When we appreciate how natural and established in earlier times the notion was that the creditor could claim nothing though the res perished, we see how necessary it was for later law- givers and custom-records to mention expressly that the claim could be maintained ; and we are the more willing to concede that wherever, in a legal literature of scanty sources, we find such an express mention of the modern rule, it indicates that there was a time when the contrary principle prevailed. I. c. No claim for a deficit. If at the time for redemption the res is not redeemed, and proves deficient in value, by deterioration or otherwise, the pledgee has no redress; the res is his forfeit, and he cannot look beyond it for payment.^ The significance of this rule for the forfeit idea seems clear. d. Here, also, the next stage towards the modern rule is reached through an express promise to pay the deficit; and it is this stage that is best represented in the town laws and cus- tomaries of the late Middle Ages.'* 1 The just-quoted passage from the Prague Rechtsbuch ends: "jr gelubde stee zwissen in den andere"; so also the Sachsenspiegel passage, "ire gelovede stunde den anders." A clause in a document of 1334 reads : "Wore ouch daz se [creditor] das . . . hus verloren in unseme . . . dinste, so solde wir [debtor] en er phenninge weder geben" (Stobbe, Vertr. 269). The passages are collected in the following places: Weisl, 61; Meibom, 290; Stobbe, Vertr. 269; Heusler, II, 204; Kohler, 115, 315; and for Scandinavia, in Amira, I, 213; II, § 22. 2 Meibom, 290 ; Stobbe, Priv. 625, Vertr. 256. In this stage by express agreement the risk is often thrown back on the pledgee ; thus : " and if any harm comes to the castle [pledged,] of whatever sort it be, that shall they [pledgee] not demand of us [pledgor] or our successors, . . . nor have any claim or action therefore against us in any way" (document of 1435, Kohler, 332). 3 Liibeck Stadtrecht : " Brickt eme ock, dat is des schade deme dat erve vorpandet is [But if it falls short for him, that is the loss of him to whom the land is pledged] " (Stobbe, Vertr. 261). The passages are collected in the following places: Meibom, 280; Weisl, 61 ; Schulte, 500; Stobbe, Priv. 271, 623 ; Vertr. 260; Neumann, 202 ; and for Scandinavia, 'Amira, I, 213; II, § 22.
- Example of a special clause (Hesse, 1248) : "eo pacto, ut si quiddefuerit in predic-
tis, . . . supplere plenarie teneamur " (Meibom, 295) ; of a judicial decision : " Gebricht
