408 HARVARD LAW REVIEW. pose to that of the Germanic law, was common, and was perhaps essential to convey complete title.^ Moreover, the primitive stage of the law, for a pledge, was that it was indefinitely redeemable.^ The pledgee, of course, strove to obtain the cut- ting off of this right; and accordingly we find the next stage represented by the rule^ (obtaining probably in the majority of provinces) that, when ten years had elapsed after default, redemp- tion was cut off. That this result primitively involved some such process as the German aufbietung or offering-about, already de- scribed, is almost certain from the occasional mention of this process as surviving,* and that the process involved the idea of curing a defect of title appears from the fact that a final entry is usually mentioned as being made in the title-register.^ Mean- while, however, the pledgee had found out that by means of an auflassung in advance the cut-off could be accomplished without legal proceedings. The pledgor's clause explicitly appears as a quitclaim.^ A discussion arose in the Shogunate courts, in the 1700's, which neatly brings out the nature of the process as that of curing a defect of title; the dispute was whether it was enough to put such a clause in the deed of pledge, or whether a special document of release must be additionally given by the pledgor.'^ 1 Thus, for a sale in perpetuity (II, 43, Iwami) : " Neither I nor my descendants may hereafter raise objection to this transfer"; so also II, 98 Hida ; a typical document of the same sort is also given in VI, c. II, § 2, MS. 2 Such a custom survived in many places : II, 93, Ise (" there is no permanent for- feiture"); 100, Iwashiro ; loi, Uzen ; 107, Avva ("an old custom permits redemption at any time within several tens of years"). 8 II, 92, Settsu : " The usual term is one year; but the instrument remains valid for ten years ; if at the end of that time the debt remains unpaid, the property becomes the creditor's forever"; so also 95, Totomi; 96, Kai ; 98, 100, Shinano; 105, Harima; 109, Chikugo. The ten-year limit is laid down by the Shogunate in a regulation of 1779 (VI, c. II, § 2, MS.) ; but it also appears as early as 1721 (Simmons, 214, Appendix).
- II, 109, Buzen, where the pledgor is twice summoned, and then the final entry of
transfer is made on the register ; compare also the frequent custom (II, c. Ill, pp. 13 ff.) of offering about to the villagers, in case of an intended sale, to cut off their preferential right to purchase. 6 E. g., II, 108, lyo. 6 VI, c. IV, § 2, MS.: "I shall never make any claim to the contrary"; ib. § 3: " The land shall be delivered to you on default, and I shall make no objection." This is the regular phrase. ■^ The common form of the pledge-document contained no forfeiture itagare-Qix%Q (see e. g. II, 99) ; and in 1729 we find the following question submitted to the Shogunate judges (VI, c. IV, § 2, MS.) : " It is the custom in Totomi provinces for the pledge-docu- ment to contain the area of the land, the amount borrowed, the term of repayment, and clauses that the land will be returned if the money is then paid, and if it is not paid, the land will be absolutely forfeited ; and when the default occurs and forfeiture is to ensue,
