Page:Harvard Law Review Volume 10.djvu/439

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THE PLEDGE-IDEA.
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sistent with a relatively primitive set of ideas. A few marks of these may be observed. The generic term, in the first place, for pledge and hypothec, was the same,—maskanu.[1] Furthermore, the res is always said to be "in place of" (kuum) the thing owed.[2] The form of the hypothec[3] is that of a suspended pledge: "If the

    by comparison of these can a few generalizations be reached. References are as follows:—

    1877, Documents juridiques de l'Assyrie et de la Chaldée, Oppert et Menant ("Chaldea" will here be used as including Chaldea-Babylon, and the later Assyria-Nineveh); 1893, Beiträge zum babylonischen Privatrecht, Meissner; 1896, Sammlung V. Ass. u. Bab. Texte, B. IV, Texte jurist, u. gesch. Inhalts, Peiser; 1886, Les Obligations en droit égyptien, Eugène Révillout; Appendix (paged continuously), Le droit de la Chaldée, Victor Révillout. The last work is the most useful, because it contains the greater part of the pertinent documents. The reference here will be to "R.," followed by the page, and by the number of the original document (as cited by M. Victor Révillout), from M. Strassmeyer's edition (untranslated) of the British Museum collection; where no number is added, the document is usually an unpublished one of the Louvre. The comments of the learned brothers Révillout are unfortunately here of no service, as they have not studied the documents from the present point of view. Moreover, their work is of very different value; for the first above mentioned neglects usually to cite the source of the original text, and gives most of his space to adulation of the Egyptian law and speculation as to its influence upon the Greek and Roman law. The work of Oppert and Menant is to some extent untrustworthy; e. g. it translates hubulli as pignus, while the word certainly means only "interest." Meissner has only a few pledge-documents. There are other translated collections, but they seem to have nothing useful.
    Nothing will here be attempted for the law of Egypt; for, in spite of the greater abundance of general material for the student of institutions, the published pledge-documents are as yet few.

  1. ↑ See the documents in Révillout, infra; Peiser, 176, 184, 202, 218, 223. Oppert and Menant, in a Chaldean phrase-book, wrongly translate hubulli is, pignus (20, 22); their manzazanu (14, 22) is evidently an erroneous decipherment of maskanu; another word, buhi (35, 138), probably means "loan," and their rendering seems unsafe.
  2. ↑ As almost every document in Révillout shows.
  3. ↑ The phrase ina pani ("à sa face") seems to indicate possession, and when said of the creditor, his possession, i.e. a pledge proper: R. 429, No. 176; 452; 366, No. 75; 435, No. 26 ("until the creditor receives the money, . . . the house shall be ina pani"); 436, No. 156; 452; 508, No. 36; 509, No. 135. For the hypothec, insatgil or tusaggil, "confide," sometimes occurs with kuum: R. 345, No. 154; 347, No. 55. That kuum was equally used for hypothec and pledge proper appears from its use with, e. g. the hypothec for a wife's dos: R. 345, No. 154.—The distinctive mark of the pledge proper seems to be the clause: "There is no rent for the house, and no interest on the money," which assumes the pledgor to be using the money and the pledgee to be using the house; it occurs as follows: R. 435, No. 26; 440, No. 114; 454, No. 16; 504, No. 26; 507, No, 59; 509, No. 135; 510, No. 68; 514, No. 114; Peiser, 203, 223. On the other hand, the hypothec is characterized by a clause forbidding a second hypothec: "No other possessor shall put his hand on the res till the creditor receives his money." This phrase cannot apply to the pledgee's possession (i. e. forbidding him to alienate), because, as we shall see, the pledgee could transfer

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