THE PLEDGE-IDEA, . 407 the pledgor not liable for a deficit, and the pledgee not bound to restore the surplus — are clearly seen, and the stages of progress are distinguishable. 1. In the translated records there seem to be only three instances of the former rule; but they justify the conclusion that it originally prevailed generally ; ^ and there are evidences that, in some places at least, it had been departed from by express clause.^ 2. The presence and the persistence of the latter principle ap- pears on almost every page of the records.^ In later times we hear of the use of a clause providing that the pledgee shall restore the surplus ; * and in the hypothec (as we shall see) this principle had become a fairly regular rule of law. 3. The use of the atiflassiing to assist the creditor is shown with great fulness in the records, and offers an unmistakable and re- markable similarity to the Germanic law. We do not know enough about the history of property-law in Japan to be able to analyze the elements of a transfer-transaction, and the universal employment of written documents for the purpose has tended to obscure the original elements. But we do know that for a perpetual and abso- lute sale of land a quitclaim-clause, similar in phrase and in pur- unfortunately no closer indication than chapter and section can here be given ; for a list of the chapters and their titles, see p. 13 of the Introduction, Part I, to the " Mate- rials." There are also references to Simmons, Notes on Land Tenure, etc., edited and annotated by the present writer, in Trans. As. Soc. Jap., XVIII, 37. 1 II, 113, Echu : " If the article pledged is lost or destroyed by flood, fire, theft, or other unforeseen event, the pledgee is not liable to make compensation, nor the debtor to pay the debt"; III, Sect. Ill, c. V, § 2, MS., Regulations, undated, for the pawn- brokers' guild ; in case of fire or robbery, it is to be the " loss of both " (ryo-son) ; but of destruction by rats or insects, the pledgor's loss (i. e. as we saw for the same phrase in the Sachsenspiegel, the pledgor is told that he cannot hold the pledgee to his absolute liability, but it is assumed as clear that the pledgee has no claim on the pledgor) ; VI, c. IV, § 3, MS., a regulation of the early 1700's, that on the flight of a bankrupt or criminal pledgor, the res was sold by the authorities, and the loss, if there was a deficit, was the pledgee's. 2 We find agreement-clauses (II, 102, Echizen ; 113, Suwo) limiting the pledgee's liability for " calamity of Heaven " [fen-sat), and we may infer that a corresponding change in the pledgor's liability was also thus effected. 8 II, 91 ff. The frequent phrase for realty is : " On default, the property is for- feited," without any mention of restoration of the surplus. We find, in 1744, a Shogu- nate ruling (VI, c. IV, § 2, MS.) even going so far as to return a part-payment, where a final default had occurred, and to let the pledgee take the land in forfeiture. For personalty, the rule seems to have persisted till very late: II, 112, Kai ; 113, Echu, Idzumo, Suwo (these last three are of the most old-fashioned provinces); III, Sect. Ill, c. V, § 2, MS., regulation of the pawnbrokers' guild.
- Vr, c. IV, § 3, MS., clause providing for return of mashi-kin (surplus), date uncer-
tain ; another similar document, dated 1827.
