(3) Liability of a debtor to a surety for possible default; (4) Liability of a guardian on account of an infant's revocation of a sale at majority, of a husband for a wife's claim of dower in property sold, and the like. In such cases, as Heusler remarks, "it would be unreasonable to make a satzung which would transfer the enjoyment of the property immediately to the creditor, for that would be wholly unnecessary and quite beyond what the creditor could have any pretext for demanding." The res was to be the wed, if there should be a default; but as there might not be any default, it was enough assurance for him to have the res legally dedicated in advance to cover that default, while remaining in the meantime in the obligor's hands. This explanation is not only a priori wholly natural and harmonious with the forfeit idea; but it is corroborated by the circumstance that the hypothec-documents of the Middle Ages are commonly given for just such contingent liabilities,[1] and those that are not may be explained as belonging to a later stage. A further consistency and probability appears in the fact that, in this law[2] as in others, the first hypothecs which the law establishes independently of agreement seem to be that of the landlord for rent and that of the wife for the return of the dos, i. e. purely contingent defaults; and it seems entirely probable that these first came into this recognition by having been universally provided for by agreement, and finally received as settled custom.[3]
- ↑ Thévenin, Textes relatifs aux institutions privées, I, no. 22 (for a guaranty of rent); Amira, I, 639 (relatives of S., who injured a monastery, agree to give their land to the monks in perpetuo, "if the said S. does them harm again"); II, § 27 (by a husband giving the wife a hypothec on the husband's other land as security for the dos, which was returnable on divorce or death; by a guardian for dealings with the ward's property; by a debtor to a surety on a debt; but chiefly by a grantor to the grantee as security against a failure of title or a defect of area).
- ↑ Amira, II, § 28.
- ↑ Another piece of evidence of minor consequence (but worth while noticing because it reappears in Roman law) is this. The debtor could keep possession (since that was what was desired) of the res by giving the ordinary wed with livery to the pledgee, and then receiving it back on lease (Neumann, 197; Amira, II, 246). Now for ordinary claims, already due, this would have been amply sufficient; the creditor took the res in payment, and reaped a profit by letting the pledgor cultivate as tenant, just as he might have done to a third person. With this expedient as a possible one, there would have been no motive for resorting to the hypothec form as above described; i e. if mere possession by the debtor was the object, based on convenience or on the creditor's confidence in the debtor, or on some other motive than the one above stated, why was not the livery-pledge with lease back to the pledgor the simple and sufficient method? This method clearly was understood, and yet it was not commonly resorted to. The theory of contingent default is the only one that explains the presence side by side of these two modes of debtor's possession-pledge; for clearly
