THE PLEDGE-IDEA. 411 the circumstance that in some provinces the hypothec was the only form used.^ The significant rule that there could not be a second hypothec on the same res seems to have been everywhere in force.^ III. Sale for re-purchase.^ The primitive and peculiar function of this transaction, as already explained for Germanic law, seems to have been the preservation of the chance to regain family- property sold in time of need to those who were not disposed to exact harsh terms of forfeiture. The evidence for this view is to be found rather in the traits of the community than in the docu- ments, and one can only refer to the general flavor of the customs for the source of the impression.* Ordinary lenders, however, would not here resort much to the sale for re-purchase for the purpose of securing an immediate cut-off on default, for the sim- ple reason that they could still usually attain that end, in the stage in which the law comes to us, by the forfeiture-clause in a genuine pledge.^ nal pledge-deed ; this was at first treated as void, and the transaction as kakiire ; but later (perhaps till 1840) it was allowed as valid and effective to prevent the res from being treated as kakiire. 1 11,94, Mikawa; 93, Ise ; 97, Omi ; 100, Iwaki ; 102, Oshima ; iii, Iki, Hyuga. Moreover, as in Germanic history, the hypothec alone is found, in some districts, in towns : II, 108, and elsewhere. 2 II, 4, Omi, Iwashiro, Rikuchu ; 6, Echigo, Kii, lyo ; 7, Tsushima; 103, Echigo ; 109, Bugo ; VI, c. IV, § 3, MS. ; Simmons, 192, Kyoto. The hypothec by deposit of title-deeds was not uncommon : II, 3, 95, and elsewhere. 2 The terms were : Nenki-uri (term-of-years sale) ; kane-ari nenki uriwa (sale with return if I have money within the term); ariai-uri (happen-to-have-[money] sale); honimono-kayeshi (original-r<?i- return).
- II, c. I, II, VI, VIII. One passage (II, 20) mentions, as a peculiar variety of sale,
the " sale of patrimony" {mei-seki-uri), " usually made by a seller who wishes to procure a further advance." One strong piece of evidence, however, is the fact that there was allowed (as in Scandinavia) an unlimited period for thus buying back, at an era when the above-described limit of ten years was in full force for cutting off the redemption of a genuine pledge : II, 5, Echizen ; 18, Ise (" no matter how many years pass by") ; 30, Uzen (" perpetual privilege") ; 109, Buzen ; 20, Mikawa (" even though many tens of years elapse before he claims it " ; yet custom fixes 61 years as the limit) ; 107, Awa (" several tens of years "). 6 They did, however, employ it for that purpose in certain regions ; for in the hypothec, as above pointed out, the lender must (in this century certainly) restore the surplus, while in the pledge with possession he usually need not ; thus the lender would avoid the hypothec, and take a sale on a short term of re-purchase, in a region where the hypothec had become the only form of pledge ; and so in many regions we find it recorded that " pledge goes by the name of ' sale for a term of years'": (II, 109, Buzen, Hizen, Bugo; in, Iki; 102, Echizen, Kaga; 103, Echigo; 104. Hoki ; 107, Kii, Awa; in some places, it is interesting to note, the resale-agreement was in a
