412 HARVARD LAW REVIEW. IV. The pledgee appears originally as taking all the profits of the land in his possession without accounting; while the hypothec appears as accompanied by ordinary money-interest only.^ About 1736 the Shogunate officials seem to have required an accounting for the surplus over the legal rate of 15%, leaving the deficit to be at the pledgee's risk;^ but the customs above cited indicate that this rule was but little enforced. It is enough to note, however, that the transaction is always a type of shichi^ and not a transfer of the use of the land or any other different institution ; we are merely dealing, as in Germanic law, with one of the features of the law's attempts to prevent undue profits by the pledgee ; ^ and the coinci- dence of the late persistence of his non-responsibility alike for surplus capital and for surplus fruits indicates the connection of the two matters. 4. Chaldean Law.* We know that the Chaldean civilization was a mercantile one, and that commerce was highly developed ; and yet all this is con- separate document, as in Lombardy : II, 103, Echigo ; 104, Hoki).. It does not appear that the law had reached the stage in which this evasion was struck at by the authorities. There was also a contrary mode of evasion, i.e. a resort to the pledge-form for the purpose of evading the prohibition of perpetual alienation which for economic reasons was attempted by some of the feudal lords ; it was the very forfeiture-feature of the pledge which enabled the buyer to attain his purpose equally well by a short-term pledge: II, 25, 26, 27, 28, 30, 33, 39, 40, 42, no. So in France, we shall see the pledge used to evade the feudal fee due from every sale. Both these cases it is well to note, for they warn us to search for the reasons for a certain form, and they show how a form undesirable for one purpose may under certain conditions become desirable for another purpose. 1 II, 92, 95, 96, 97, 98, 104, 105, 106, 107, 108, no, III. Thus, in Iwami (105): " The creditor [in pledges] takes possession of the land and obtains a profit by culti- vating it himself, so that no interest is paid; at the end of the term the debtor may redeem by paying the principal. In hypothecs, the ownership remains in the debtor, so that the interest is to be paid in money, and on redemption both principal and interest -are paid." 2 VI, c. IV, § 2, MS. ; for the legal rate, see III, 298. 8 Yet in other ways the attainment of undue profits was struck at ; thus, by 1779, the practice of leasing back one half the land to the pledgor while having him bear the whole of the taxes (known as zan-chi), and of leasing back all the land and having him pay part or all of the taxes (known as hanrai-no) , were forbidden (VI, c. II, § 2, MS.) ; and these are mentioned as forbidden in the customs of the Restoration (II, 99). 4 Different features of development are represented with different fulness in dif- ferent systems of law. In the Chaldean system we find only a few points represented in the sources hitherto accessible, and these are such as befit primitive stages of the law. The sources are here exclusively documents (as we should call them), and only
