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94 U. Pa. L. Rev. 94 (1945-1946)
Story of the Mortgage Retold

handle is hein.journals/pnlr94 and id is 104 raw text is: THE STORY OF THE MORTGAGE RETOLD By JAcoB 3. RABINOWITZt In their History of English Law, Pollock and Maitland speak of the Glanvillian and Bractonian mortgages as representing two dis- tinct stages in the development of the English law of mortgages.1 On the basis of an obscure passage in Glanvill they concluded that, at the time when Glanvill's treatise was written, a forfeiture of gaged land by the gagor, in case of failure on his part to pay the mortgage debt on the due date, could be validly effected by an appropriate provision to that effect in the mortgage agreement, and that in the absence of such a pro- vision the gagee could enforce a forfeiture by a proceeding in court. The Glanvillian mortgage was, according to Pollock and Maitland, one in which a forfeiture was either expressed or implied, and in the latter case the gagee had to have recourse to what we might call a foreclosure proceeding in order to enforce a forfeiture. The Bractonian mort- gage, they assert, took the form of a lease for a definite period of time, with a provision that upon failure on the part of the gagor to pay the debt at the end of the period fixed in the mortgage instrument the land was to become the property of the gagee absolutely. As to the classical English mortgage in the form of an absolute conveyance with a condition subsequent, Pollock and Maitland are apparently of the opinion that it came to the fore in the fourteenth cen- tury only, by reason of the fact that the lawyers of that time found it difficult to square the notion of a term of years swelling into a fee with their ideas of seisin.2 The writer proposes to show that neither in the twelfth nor in the thirteenth century could a forfeiture be effected either by agreement between the parties or by a proceeding in court, as in the so-called Glan- villian mortgage ; that a term of years could not be converted into a fee by nonpayment of the mortgage debt, as in the so-called Bractonian mortgage ; that Pollock and Maitland failed to take fully into account a very potent influence upon the development of English law during the period under discussion, namely the influence of Hebrew law and legal t B. S., 1929, Columbia University; M. A., 1931, LL. B., 1937, New York Univer- sity. Member of the New York Bar. Former member of the legal staff of the Depart- ment of Investigation, City of New York. Author: Some Remarks on the Evasion of the Usury Laws in the Middle Ages (1943) 37 HARVARD THEOLOGICAL REVIEw 49; The Origin of the Common Law Warranty of Real Property and of the Inchoate Right of Dower (1944) 30 CORN. L. Q. 77; The Common Law Mortgage and the Conditional Bond (1943) 92 U. OF PA. L. REv. 179. I. 2 POLLOCK AND MAITLAND, HIsTORY OF ENGLISH LAW (2d ed. 1898) 119-122. 2. 2 id. at 122-3.

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