392 HARVARD LAW REVIEW. decided choice between the two forms ; for, as we have seen, the later mediaeval and early modern law set itself to nullify this eva- sion of the pledgee's duty by requiring him to come to court for forceclosure of the pledge, and to sell and to hand over the surplus, in spite of such a forfeiture-clause; and by calling the transaction a sale he might escape this supervision. This choice, however, was essentially a result of the later law, and will be noticed again; it throws no light on the original reasons for choice. (5) Evasion of the interest-prohibition. As this prohibition did not obtain much strength until, say, the 1200's,^ it is obvious that it could not have affected the original choice. Moreover, as it was only slightly in vogue in Germanic regions,^ and practically not at all in Scandinavia, ^ while thoroughly accepted in France, and as the sale for repurchase attained its highest development in Iceland and was least common in France, the choice of the sale for repurchase had clearly in its essence nothing to do with the canonical interest-prohibition. Finally, that prohibition in terms brought also, where it was actually enforced, the evasive sale for repurchase under its ban; so that there was little reason to prefer it as a method of evasion. There were, then, apparently, no legal effects of the one or the other form, in the beginning, which could motivate any choice for either, by debtor or by creditor. Were there, then, any other circumstances to explain that choice? 2. The descriptive phrase in a passage above quoted, '* sub spe redemtionis vendita," will perhaps best introduce us to the theory that will be here suggested. We are dealing primitively, it must be remembered, with a community in which the sale, and much more the pledge, of the family estate is all against the grain.* It is a community in which the land is often held and cul- i 1877, Darif, Le Pret ^ Interet, 129, 140 {placing the date at 1200+) ; 1891, Gold- schmidt, Handelsrechts, I, 140: "Unfounded in many respects is the oft-repeated assertion that modern commercial law only very gradually threw off the fetters of the canonical principle ; . . . not once was the Church able to enforce practically its pro- hibition of interest ; ... in the secular courts the prohibition did not come to be applied until the middle of the 14th century." Thus the opinion of Endemann (II, 339) and Neumann (186 ff.), that the interest-prohibition was the source of the resort to the sale for repurchase, seems inapplicable to earlier times. 2 Neumann, 72, 183-194; Stobbe, Priv. 270; Endemann, II, 341. ^ Amira, I, 2or, 661 ; II, 8oo.
- See the exposition by Fustel de Coulanges of the religious and moral repugnance
primitively prevailing against the transfer of land-property : 1891, Nouvelles Re- cherches, 78.
