334 HARVARD LAW REVIEW. explanation is the part played by the atiflassimg (resignatio, abdi- catio, ** se exitum dicere ") of the Germanic law. It is enough to call to mind that the Germanic notion of a complete transfer of a property-right involved three distinct elements, — the sale or tra- ditto, the gewere or investitura, and the verzicht, uplaten, werpitio^ dewerpitio, atiflassung, resigiiatio. The first two dealt with the transfer of possession or control over the res, and were later sym- bolically merged in a transaction which was in effect single, and is sufficiently indicated by the one word traditio. The third, how- ever, remained essentially separate ; it signified the final and com- plete abandonment of all right or interest in the res. One would, for example, give traditio equally in a sale, a life-estate, a pledge ; but in the first there would also be auflasstmg, in the last two there would not^ To the Anglo-American lawyer the idea pre- sents no difficulty, for it is already familiar to him throughout the history of his own law; it is in essence and in historical con- tinuity the remittere and quietum clamare of the I200's and the "release" and quitclaim" of later times.^ The significance and historical importance of the idea can easily be understood by those who have read the articles of Professor Ames on Disseisin.^ Now, when the primitive Germanic pledgor defaulted, the pledgee was not hampered by any question of a duty to appraise or sell the res and hand back the surplus value ; on the contrary, the res, so far as it was now his, came to him as a whole and undiminished. But the res was not his absolutely ; that was his difficulty. It was not that he had a duty to sell ; such a notion was then unthought of; it was that he had not the right to sell. He had only a de- fective title to give, and even if he disposed of that, the ultimate possessor might (in the case of personalty) hold the res success- fully against the pledgor by the doctrine of hand muss hand wahren,^ and then the pledgor might come against the pledgee for wrongfully disposing of the goods. The fact that the pledgor was in default by not redeeming at the due time did not help the matter; the trouble was that a defect existed in the very property- right of the pledgee, i. e. he had never had an atiflassimg from the 1 " Aujlassung" was sometimes used by older German scholars in a sense inclusive of traditio. The true doctrines of Germanic law, in particular the significance of auf- lassung, are here assumed to be those established by Heusler in his " Gewere," and expounded in their latest form in his " Institutionen," II, §§ 92-94. 2 Pollock and Maitland, Hist. Eng. Law, II, 9a 8 3 Harvard Law Review.
- Heusler, II, 10, 212.
