Chapter 1 - Determination of Forms of Agreement and Legal Disputes

[Sanskrit text for this chapter is available]

Summary: Determination of Forms of Agreement; Determination of Legal Disputes.

In the cities of saṅgrahaṇa,^[1] droṇamukha,^[1] and sthānīya,^[1] and at places where districts meet, three members acquainted with Sacred Law (dharmasthas^[2]) and three ministers of the king (amātyas) shall carry on the administration of justice.^[3]

(Valid and Invalid Transactions)

They shall hold as void agreements (vyavahāra) entered into in seclusion, inside the houses, in the dead of night, in forests, in secret, or with fraud.^[4]

The proposer and the accessory shall be punished with the first amercement;^[5] the witnesses (śrotṛ=voluntary hearers) shall each be punished with half of the above fine; and accepters shall suffer the loss they may have sustained.

But agreements entered into within the hearing of others, as well as those not otherwise condemnable shall be valid.

Those agreements which relate to the division of inheritance, sealed or unsealed deposits, or marriage; or those in which are concerned women who are either afflicted with disease or who do not stir out; as well as those entered into by persons who are not known to be of unsound mind shall be valid though they might be entered into inside houses.

Transactions relating to robbery, dud, marriage, or the execution of the king’s order, as well as agreements entered into by persons who usually do their business during the first part of the night shall be valid though they might be done at night.

With regard to those persons who live most part of their life in forests, whether as merchants, cowherds, hermits, hunters, or spies, their agreements though entered into in forests shall be valid.

If fraudulent agreements, only such shall be valid as are entered into by spies.

Agreements entered into by members of any association among themselves shall be valid though entered into in private.

Such agreements (i.e. those entered into in seclusion, etc.) except as detailed above shall be void.

So also agreements entered into by dependent or unauthorised persons, such as a father’s mother, a son, a father having a son, an outcast brother, the youngest brother of a family of undivided interests, a wife having her husband or son, a slave;, a hired labourer, any person who is too young or too old to carry on business, a convict (abhiśasta), a cripple, or an afflicted person, shall not be valid. But it would be otherwise if he were authorised.^[6]

Even agreements entered into_: by an authorised person shall be void if he was at the time (of making the agreements) under provocation, anxiety, or intoxication, or if he was a lunatic or a convicted person.

In all these cases, the proposer, his accessory, and witnesses shall each be punished as specified above.

But such agreements as are entered into in person by any one with others of his own community in suitable place and time are valid, provided the circumstances, the nature, the description, and the qualities of the case are credible.

Of several agreements entered into by a single man with the exception of orders (ādeśa=probably a bill of exchange) and hypothecations, the last in the series should be given credit to.^[7] Thus the determination of the forms of agreement.

(The Trial)

The year, the season, the month, the fortnight (pakṣa), the date, the nature and place of the deed, the amount of the debt as well as the country, the residence, the caste, the gotra, the name and occupation of both the plaintiff and the defendant both of whom must be fit to sue and defend (kṛtasamarthāvasthayoḥ), having been registered first, the statements of the parties shall be taken down in such order as is required by the case. These statements shall then be thoroughly scrutinised.

(The Offence of Parokta)

Leaving out the question at issue, either of the parties takes resort to another; his previous statement is not consistent with his subsequent one; he insists on the necessity of considering the opinion of a third person, though it is not worthy of any such consideration; having commenced to answer the question at issue, he breaks off at once, even though he is ordered to continue;^[8] he introduces questions other than those specified by himself; he withdraws his own statement; he does not accept what his own witnesses have deposed to; and he holds secret conversation with his witnesses where he ought not to do so.

These constitute the offence of parokta.^[9]

(Punishment for Parokta)

Fine for parokta is five times the amount (paroktadaṇḍa pañcabandha).^[10]

Fine for self-assertion (svayamvādi=asserting without evidence) is ten times the amount (daśabandha). ^[11]

(Payments for Witnesses)

Fees for witnesses (puruṣabhṛti) shall cover one-eighth of a paṇa (aṣṭāṅga). Provision proportional to the amount sued for may also be made for the expenses incurred by witnesses in their journey. The defeated party shall pay these two kinds of costs.

(Counter suits)

In cases other than duel, robbery, as well as disputes among merchants or trade-guilds, the defendant shall file no countercase against the plaintiff. Nor can there be a countercase Tor the defendant.^[12]

(Adjournments)

The plaintiff shall (“rejoin”) reply soon after the defendant has answered the questions at issue. Else he shall be guilty of parokta, for the plaintiff knows the determining factors of the case. But the defendant does not do so.^[13] The defendant may be allowed three or seven nights to prepare his defence. If he is not ready with his defence within that time, he shall be punished with a fine ranging from 3 to 12 paṇas. If he does not answer even after three fortnights, he shall be fined for parokta, and the plaintiff shall recover out of the defendant’s property the amount of the case. But if the plaintiff sues for a mere return of gratitude (pratyupakaraṇa),^[14] then no (decree shall be passed).

The same punishment shall be meted out to such of the defendants as fail.

If the plaintiff runs away, he shall (also) be guilty of parokta. If he fails to substantiate his case against a dead or diseased defendant, he shall pay a fine and perform work (like a slave) under the orders of the defendant, as determined by the witnesses. If he proves his case, he may be permitted to take possession of the property hypothecated to him.

But if he is not a Brāhman, he may, on his failure to prove his case, be caused to perform such ceremonials as drive out demons (rakṣoghna rakṣitaka).

* In virtue of his power to uphold the observance of the respective duties of the four castes and of the four divisions of religious life, and in virtue of his power to guard against the violation of the Dharmas, the king is the fountain of justice (dharmapravartaka).^[15]

* Sacred law (dharma), evidence (vyavahāra), history (caritra), and edicts of kings (rājaśāsana) are the four legs of Law. Of these four in order, the later is superior to the one previously named.^[16]

* Dharma is eternal truth holding its sway over the world;^[17] vyavahāra, evidence, is in witnesses; caritra, history, is to be found in the tradition (saṅgraha) of the people; and the order of kings is what is called śāsana.^[18]

* As the duty of a king consists in protecting his subjects with justice, its observance leads him to heaven. He who does not protect his people or upsets the social order wields his royal sceptre (daṇḍa) in vain.

* It is power and power (daṇḍa) alone which, only when exercised by the king with impartiality and in proportion to guilt, either over his son or his enemy, maintains both this world and the next.^[19]

* The king who administers justice in accordance with sacred law (dharma), evidence (vyavahāra), history (saṃsthā), and edicts of kings (nyāya), which is the fourth, will be able to conquer the whole world bounded by the four quarters (caturantām mahī).

* Whenever there is disagreement between history and sacred law or between evidence and sacred law, then the matter shall be settled in accordance with sacred law.

* But whenever sacred law (śāstra) is in conflict with rational law (dharmanyāya=king’s law), then reason shall be held authoritative; for there the original text (on which the sacred law has been based) is not available.^[20]

* Self-assertion (svayaṃvāda) on the part of either of the parties has often been found faulty. Examination (anuyoga), honesty (ārjava), evidence (hetu) and asseveration by oath (śapatha)—these alone can enable a man to win his cause.

* Whenever, by means of the deposition of witnesses, statements of either of the parties are found contradictory, and whenever the cause of either of the parties is found through the king’s spies to be false, then the decree shall be passed against that party.

[Thus ends Chapter I, “Determination of Forms of Agreement; Determination of Legal Disputes,” in Book III, “Concerning Law” of the Arthaśāstra of Kauṭilya. End of the fifty-eighth chapter from the beginning.]

Footnotes and references:

[1]:

See Chapter I, Book II.

[2]:

udges were called themists in ancient Greece ; see Maine’s Ancient Law, Chapter I.

[3]:

Compare Bṛhaspati and Kātyāyana.

[4]:

N. 1, 1,43; Y. 2, 31, 32.

[5]:

A fine ranging from 48 to 96 panas is called first amercement; from 200 to 500 panas, the middlemost; and from 500 to 1,000 paṇas the highest amercement. See Chapter XVII, Book III.

[6]:

Compare N. 1, 26-42, Y. 2, 32-23.

[7]:

Yag. II, 23.

[8]:

Having commenced to answer the question at issue, he takes up another useless or irrelevant question.—Manuscript of the Arthaśāstra, No. 335, Royal Library, Munich.

[9]:

N. I. 24, 56, 60; M. 8, 53-55.

[10]:

See footnote on “Pañcabandha and Daśabandha,” Chapters XI and XIII, Book III. The T.M. Com. interprets Pañcabandha as one-fifth.

[11]:

See footnote on “Pañcabandha and Daśabandha,” Chapters XI and XIII, Book III. T M. Com. makes it one-tenth.

[12]:

Y. 2,9, 10; N. I, 1, 55.

[13]:

N. pp. 14, 18; M. 8, 55.

[14]:

For a return of subsistence and help given.—Munich Manuscript.

[15]:

The original passages here, as at the end of each chapter, are in śloka form. Such metrical passages are marked with an asterisk in the translation except in the first two books.

[16]:

Compare Jolly’s translation of Nārada’s Introduction.

[17]:

In truth lies Dharma.—Munich Manuscript.

[18]:

N. 1, 10, 11.

[19]:

M. 8, 18, 19.

[20]:

“Dharmaśāstra is more authoritative than Arthaśāstra.” Y. 2, 21; see also N. 1, 39, 40.