340 HARVARD LAW REVIEW. now, after he had found out another way of curing that defect, and was using it to abuse a principle of justice that had grown up in the meantime, he came into court compulsorily to be made to do justice ; the two situations being wholly distinct.^ This, then, is the stage at which the pledge transaction emerges into what we call modern history. All through the 1500's the German customary laws were forbidding this evasion.^ Already before this time the sea-laws of Wisby, with their advanced com- mercial ideas, had taken the same step.^ The same period finds the English courts occupied with the same undertaking. The im- perial prohibition of the lex commissoria in Roman law, which has served as the theme of much fruitless discussion, is nothing more nor less than the same feature in the development of another legal system. The indigenous working out of the process in Germany was probably stopped by the reception of Roman law, which had long ago settled upon its solution of the problem.* The details of its working out in England cannot be examined here. For the form in which the problem was presented to modern law, then, we were indebted to two distinct principles, operating to- gether to cause confusion and misinterpretation in the modern student's mind. First (A) the forfeit notion which had primitively prevailed, and had then given way to the notion of collateral secu- rity; and, next (B), the necessity of a resignatio or aujiasstmgy which left a defect in the pledgee's title, and led him to strive to cure it, and revealed to him, in curing it, a way of evading the other principle ; so that it became necessary for the law, in main- taining the former principle, to deal with that form of the latter through which the abuse was perpetrated. Only by keeping clear the history and separate workings of these two principles can we 1 So that such a provision for sale or forfeiture as the following, which would fairly represent in its terms one of the earlier mediaeval town laws, exists on modern statute books for wholly different reasons; Code Civil, art. 2078: " Le creancier ne pent, k defaut de paiement, disposer du gage; sauf a lui a faire ordonner en justice que ce gage lui demeurera en parement et jusqu'^ due concurrence d'apres une estimation faite par experts, ou qu'il sera vendu aux eucheres." 2 See examples in Stobbe, Priv. 270, 627. 8 Amira, I. 213.
- The Roman law brought with it into Germany the prohibition of the lex commis-
soria or forfeiture-clause, and the prohibition still prevails, upon the theory that it enables the creditor unjustly "to obtain extraordinary profits" (Motive zum biirgerl. Gesetzb., 1888, III, 680, 820). As late as 1881 the courts were called upon to say that the Imperial law of 1867, abolishing the usury prohibition, did not abolish the lex com- missoria prohibition ( Vierhaus, Sammlung kleinerer privatr. Reichsgesetze, 303, n. 4).
