THE PLEDGE-IDEA. 331 c Later still we find the next step taken, and the law expressly authorizes pledgees to collect the deficit from their pledgors.^ 2. a. No return of surplus by the pledgee. If the res is really a forfeit, standing for and in place of the claim, the pledgee gets the benefit as well as the detriment, and if, when the pledgor fails to redeem, the res is worth more than he would have needed to pay for redeeming, the pledgee cannot be looked to for the surplus ; and this is equally true whether the res is merely kept by the pledgee or is sold and turned into money.^ a! . The transition comes first through a contract clause requiring restoration of the surplus;'^ and, a! then this settles into the fixed custom.* It seems (where careful chronological tracing is possible) to have come first for personal property.^ Moreover, the notion (2 a) that the pledgee need not restore the surplus seems (often or usually) to have suft"ered the change earlier than the correlative notion (i c) that the pledgor need not pay the deficit;^ perhaps the explanation of this is, first, that the pledgee usually took care ihme aber etwas daran, er soil es missen ; es were dan dass ihme seine voile bezahlung gelobet und zugesagt worden " (Stobbe, Priv. 624) ; of a popular customary (Sachsen- spiegel, later form) : *' If the debtor acknowledges that he has promised [gelobet] along with the pledge, the creditor shall be helped out [by payment] over and above the pledge if it falls short ; if the debtor affirms that he has not promised along with the pledge [to pay the deficit], the Jew must rest content with his pledge " (Meibom, 282). For collections of passages, see the citations of the preceding note. 1 See the same citations. The development is neatly seen in the successive re- visions (quoted Meibom, 424) of the Hamburg Stadtrecht. The text of 1270 read: " Umbreke erne ok wat, de schade is syn "; while the revision of 1292 left it, " Unt- breke eme och wat, dhat sea eme dhe volden des dat goet oder dai erve was" 2 This we notice most clearly in the form of the judgment which the creditor (as explained later) obtained. There is no talk of returning the surplus value ; it is simply ordered that " he take the pledge to his own use and be from the other man quit and free " ; it is his forfeit, and its value is immaterial. The authorities are found in Mei- bom, 330 ; Heusler, II, 204 ; Schulte, 500 ; Stobbe, Priv. 270, 627 ; Vertr. 260 ; Koh- ler, 137 ; and for Scandinavia, Amira, I, 203, 213; II, § 22. 8 Example of a document clause (Hesse, 1248) : " eo pacto, ut . . . si quid super- est, aut restituat," etc. (Meibom, 295); for other passages, see the citations of the preceding note.
- Liibeck Stadtrecht : " Wat dat erve [land] mer gelt, wan dit it vervolget [for-
feited] is, dat schal he ime wedder geven " (Stobbe, Vertr. 261) ; Ditmars Landrecht, 1 541 A. D. : " Wunneth he averst mit darumme, also he gelaveth heft; dat overighe gheldt schall he dem rechten sackwolt wedergeven " (Neumann, 202). In the Stadt- recht of Frieberg we see another shade of transition : " Was die pfant tfezzer suit, wi si sten, daz mag he behalden ; he mac iz ouch widergeben ob er wil" (Weisl). For authorities, see those of the preceding note, and Neumann, 204; Weisl, 25, 39.
- Amira, I, 203, 213.
- Amira, I, 205, 213 ; II, § 22 ; Stobbe, Vertr. 260 ; Meibom, 331.
