ble feature of other systems of law, and it seems to be explainable on only one theory, viz. that since the res has been dedicated specifically as contingent payment for a possible default, and since (as we have just seen) the creditor-pledgee obtains a title to it pursuable in the hands of a third person, and since. on default the pledgee will obtain the whole res as the equivalent of his claim, regardless of any surplus value that may exist, it is impossible to conceive of any other creditor as having a concurrent interest in that res. In short, this well-proven rule is not only consistent with, but is the inevitable consequence of the fundamental forfeit-idea in the wed or satzung.

2. The hypothec then, being originally in legal nature nothing but a form of wed or satzung in which the pledgee was not given possession, what were the circumstances to which this form of satzung would be appropriate? Why and when would this form be used instead of the other? The answer has already been pointed out, viz. wherever the existence of a claim is not yet certain, i.e. a default is only contingent. The chief cases of this sort, as enumerated by Heusler (147) are: (1) Warranty of title in a sale of land; (2) Rent from a lessee or other rent-grantor; (3) Liability of a debtor to a surety for possible default; (4) Liability of a guardian on account of an infant's revocation of a sale at majority, of a husband for a wife's claim of dower in property sold, and the like. In such cases, as Heusler remarks, "it would be unreasonable to make a satzung which would transfer the enjoyment of the property immediately to the creditor, for that would be wholly unnecessary and quite beyond what the creditor could have any pretext for demanding." The res was to be the wed, if there should be a default; but as there might not be any default, it was enough assurance for him to have the res legally dedicated in advance to cover that default, while remaining in the meantime in the obligor's hands. This explanation is a priori wholly natural and harmonious with the forfeit idea....

any number of creditors are welcome to take their chances with the res, even though their united claims exceed its value; and so we find (Stobbe, 283) the codifications of the 1500's providing expressly that additional hypothecs are allowable.

i [In later chapters of the original work, the author traces a corresponding development in Egyptian, Babylonian, Jewish, Japanese, Greek, and Roman law.]

CHAPTER XXVI

SURETYSHIP 1

1. Suretyship originally meant the giving of a hostage, the debtor being released by a new debtor, either at once or when the need arose. Not until later did suretyship change its character so that it implied an addition to the debtor's credit instead of an attachment of the person.

The principle of giving pledge of a hostage is based on the idea Lof representability, one person being considered as fitted as another to assume the liability for the debt and thus to satisfy the creditor. This applied not only to obligatory relations of an economic kind, but also to penal obligations, a surety taking the place of the guilty subject. Here, too, we find the idea of equivalence, resting on the view which at that time dominated criminal justice, and did not necessarily connect the punishment with the perpetrator, but even extended it to other persons.

2. To act as surety was considered the special duty of the members of the family; this was an outgrowth of the earlier idea of the collective liability of the family. While formerly, by virtue of the law, the family was liable for the individual, the later form reversed this, so that the individual took upon himself the liability for other members of his family.

3. Suretyship does not, of course, aim at subjecting the surety to the debtor's difficulties; rather, it is understood that he is to be released by the debtor's doing what is necessary to satisfy the creditor either economically or by undergoing the penalty. Not to protect the surety against liability was a reprehensible breach of faith, and whoever was guilty of it not only incurred the blame of society, but the surety was allowed to proceed against him rigorously. At first, this so-called recourse developed within the family, and the State paid little attention to it originally; because

1 [Reprinted, by permission, from JOSEF KOHLER, "Philosophy of Law," (Albrecht's trans.), Boston Book Company, 1914 (Philosophy of Law Series, Vol. XII).]

the family kept order in its own circle, and of its own accord revenged all negligences and failures on the part of its members to perform their duty.

4. Suretyship was a liability of the person. It was not a trade obligation but a personal intervention for another; hence the principle that suretyship expires with the surety; it is not handed on to the heirs.

5. But this leads to serious evils, for the debtor is freed from the creditor by virtue of the suretyship, and then the creditor loses the surety also.

Of necessity, then, the rule developed, that in such cases the debtor must produce a new surety, or must again offer himself, and this brings about a far-reaching change in the institution. As long as obligations existed only for a short time, this condition of affairs either did not occur at all, or had no effect deep enough to influence the institution to any considerable extent. But, when long-continued obligatory relations arose, it was necessary to provide for the creditor in the way mentioned; and this gave rise to the rule, that by procuring a surety the principal debtor is indeed freed, but not completely; he must again become answerable if the guaranty of the surety fails. This conditional, further liability of the debtor gradually grew to be unconditional; and so it came to be that both the debtor and the surety were liable to the creditora condition that would have been impossible, according to the views held in earlier times; for then the principle was maintained: one debt, one debtor. Gradually the debtor's liability became so conspicuous that some systems of law have forced the surety entirely into the background; so that he is answerable only if the debtor fails in some way to perform. What is called the beneficium excussionis, according to which the surety may require that the creditor first proceed against the debtor and resort to the surety only if this attempt is unsuccessful, is a very meager institution and one that discourages credit, for it makes the creditor's security unstable. The security of credit requires not only full, but also easy satisfaction to the creditor; in order that credit may be easily obtainable, it is necessary not only that the creditor be paid, but also that he attain his object quickly and without trouble. Hence the idea, that appeared in Germany in the Middle Ages, that the surety may require the creditor to proceed punctually against the principal debtor, so that the latter may not become insolvent and thus cast the burden on the surety, is entirely at variance with the meaning of the institution

The only proper

and deprives it of a great part of its value. course, in such a case, is to allow the surety to proceed against the debtor, and to leave it to him, whether he will do so; so that the debtor may be compelled to give the surety security, or to release him (either by finding another surety or in some other way).

CHAPTER XXVII

EVOLUTION OF THE LAW OF CONTRACT

SECTION I

THE FIDES COMMANDMENT1

THE BELIEF IN Ζεὺς πίστιος (DIUS FIDIUS)

THE belief in two powers gods and the spirits of ancestors who stand in a certain contrast to each other, is the basis of the ancient Aryan system. Among the south Aryan tribes, the worship of the "parentes" of the first three grades [father, grandfather, and great grand-father] differed in a peculiar manner from the general cult of more distant ancestors, especially famous heroes. Out of this, the Greeks and the Latins developed the precept of obedience to the fatherland. A fourth idea has been annexed to this cult-aid to fellow-creatures needing protection, who if despised have the power of the curse. According to the ancient fundamental ideas, sacrifices are made to these four powers. The commandments to honor them are religious. These four commandments are unmistakably found in ancient Roman "fas." In contrast to them are the five moral injunctions-[physical and moral cleanliness, not to defame, not to inflict physical injury, not to steal, and not to lie.]

Four peoples which will be more closely considered here, have a clear connection with these five moral precepts the Indians, Iranians, Greeks, and Latins. But in the use of these precepts, these peoples finally drew far apart. The seeds of these five rules already lay in the first religious commandments: one must

1 [By Dr. B. W. LEIST, Professor of Law at the University of Jena. Translated from "Alt-Arisches Jus Civile," Erste Abtheilung, Jena, 1892 (pp. 420-450), by Albert Kocourek. The translator is glad to acknowledge the use, for purposes of comparison, of a preliminary translation of the same material, courteously made at his request, by Mr. H. R. Juergensen of Chicago, a former student of law at the University of Munich." The present translator, however, is solely responsible for whatever may have missed the mark in the rendering now made.]