Verse 8.143 [Pledges (ādhi)]

Sanskrit text, Unicode transliteration and English translation by Ganganath Jha:

न त्वेवाधौ सोपकारे कौसीदीं वृद्धिमाप्नुयात् ।
न चाधेः कालसंरोधात्निसर्गोऽस्ति न विक्रयः ॥ १४३ ॥

na tvevādhau sopakāre kausīdīṃ vṛddhimāpnuyāt |
na cādheḥ kālasaṃrodhātnisargo'sti na vikrayaḥ || 143 ||

But when there is profitable pledge, he shall receive no interest on the loan; and there shall be neither transference nor sale of the pledge, merely by the lapse of time.—(143)

 

Medhātithi’s commentary (manubhāṣya):

Money-lending is done in various forms—with pledge as well as without pledge. Pledge also is of two kinds—to be used and to be kept. That to be used is again of two kinds—(a) that in which the profit consists in some form of product of the pledged article and (b) that which is used as it stands; the milch cow belongs to the former class, and wrought gold, etc., to the latter.

What is said here regarding the case ‘when there is profitable pledge’ refers to the pledge to be used.

The ‘profitable pledge’ is of various kinds, such as the milch cow, fields, gardens and so forth.

While such a pledge is being used by the money-lender, ‘he shall receive no interest,’ such as that laid down in the foregoing verses—‘on the loan.’ That is, he who is deriving a profit from the pledge shall receive no other kind of interest.

In the case of the pledge to be kept also, ‘merely by the lapse of time,’—simply because a longtime has elapsed,—even becoming doable of its former size, and the pledge remains unredeemed,—‘there shall be neither transference nor selling.’ ‘Transference’ consists in the article being duly made over to another person. Even though already doubled, the principal, even on the transference of the pledge, shall continue to grow: as is going to be declared later on—‘sakṛdāhṛta,’ etc. ‘Selling’ is well known. This also shall not be done.

“What then is to be done in such cases?”

The man shall continue to use (derive proñt from) the pledge, till the principal has become doubled and repaid; when it shall be redeemed. When the doubled principal has been repaid, the pledge ‘to be used’ shall cease to be used, and that ‘to be kept’ shall be returned. The pledge ‘to be used’ shall remain with the creditor till the debt is repaid,—unless there is some damage. If there is some damage done, and the creditor somehow has become too poor, having no other property except that pledged article, then, having waited for some time, he shall report it to the king and sell the article; and from the sale-proceeds he shall take an amount which is just the double of his principal, and hand over to a middle-man the balance for being paid over to the debtor.

“But it is declared that—‘if on the principal having been doubled, the pledge is not redeemed, it becomes lost (forfeited)’ (Yājñavalkya, Vyavahāra, 58)”

This we are going to explain. As a matter of fact, this ‘forfeiture’ or ‘loss’ does.not mean that the former owner entirely loses his ownership, and the person having it acquires ownership over it. For when there can be no ‘transference or sale,’ what sort of ‘ownership’ would the man acquire? Hence, by virtue of the said prohibition of ‘transference or sale,’ the ‘loss’ or ‘forfeiture’ must he taken to mean that the creditor who may have ceased to use it becomes entitled to use it again. Or the term ‘loss’ may he taken as referring to such things as clothes and the like, which naturally become ‘lost’ (perished) by using; and which cannot continue to be used even when they have lost their original form,—in the manner in which lands and other such things can continue to be. It is in this sense that the Smṛti has to be explained.

In fact, the term ‘loss’ has been used in the figurative sense, of permitting the use of it; while the prohibition of ‘transference and sale’ must be taken in its literal sense; as this latter is not capable of being understood in a figurative sense. It is in this sense that, we have another Smṛti text to the effect that ‘there shall be no selling or handing over of pledges, etc., etc.’ What is spoken of as ‘handing over’ in this text is the same as ‘transference,’ as is clear from its being mentioned along with ‘sale,’—both of them being similar in certain respects.—(143)

 

Explanatory notes by Ganganath Jha

“According to Medhātithi Govindarāja and Nārāyaṇa, the last clause refers to pledges which are not used; but Kullūka objects that this is contrary to the common practice of the Śiṣṭas; and Rāghavānanda refers to Yājñavalkya, 2.48. where it is clearly stated that beneficial pledges only are never lost, while those which are merely kept are lost when the original debt is doubled by unpaid interest.”—Buhler.

The first part of this verse is quoted in Vivādaratnākara (p. 23), which explains ‘sopakāre’ as ‘what is used or enjoyed’;—in Aparārka (p. 659);—in Vivādacintāmaṇi (p. 15), which explains ‘sopakāre’ as ‘used’ or ‘enjoyed,’ and the mere fact of the thing having been used deprives the creditor of the interest, and if, through some act of the creditor, the article mortgaged loses its usefulness, the interest ceases;—in Kṛtyakalpataru (70a);—and in Vīramitrodaya (Vyavahāra, 95a).

 

Comparative notes by various authors

(verses 8.143-144)

Gautama (12-32).—‘A loan secured by a pledge that is used by the creditor bears no interest.’

Viṣṇu (6.5).—‘If the pledge is used, interest becomes forfeited.’

Nārada (l.125-229).—‘A pledge is of two kinds—one to be kept, and one for use. It must be preserved in the same condition in which it was given; otherwise, the pledgee loses interest...... A pledge must not be used forcibly; by so using it, the pledgee forfeits the interest due to him. That foolish person who uses a pledge without the authority of the owner, shall lose one half of his interest, as a compensation for such use. If a pledge for use has been given, the creditor must not take interest due on the loan.’

Bṛhaspati (11.18 et seq.).—‘Should the creditor, actuated by avarice, use a pledge before interest has ceased to accrue on the loan, or before the stipulated period has expired, such use shall be stopped. The pledge has to be kept carefully, like a deposit; interest becomes forfeited in the event of its being damaged. If the pledge is used and rendered worthless, the principal itself becomes forfeited; if a very valuable pledge be spoilt, the creditor must satisfy the pledger.’

Yājñavalkya (2.59).—‘There is no interest payable, if a pledge given as deposit is used, or if a pledge given for use is destroyed; if it is spoilt or lost, it should be replaced; except when such loss has been due to an act of god or the King.’

Vyāsa (Aparārka, p. 659).—‘If the pledge in the form of gold and the like, has been destroyed by the fault of the creditor, the debtor shall pay the principal along with the interest accrued, and the creditor shall be made to pay the value of the pledge to the debtor.’

Kātyāyana (Do.).—‘If the pledgee makes use of the pledge without authorisation, he shall pay the price of such use; or else, he shall forfeit the interest.’

Arthaśāstra (p. 3).—‘The man who uses the pledge should pay the price of such use; also a fine of 12 paṇas; if, by such use, the pledge becomes lost or spoilt, the user should replace it, and also be fined 21 paṇas; so also when the pledge becomes lost in any other way. A pledge given for use should not be allowed to be destroyed; nor in this case should any interest accrue; if it is given for mere keeping and not for use, then interest shall accrue.’