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Explanatory notes by Ganganath Jha:

The first half of this verse is quoted in Vivādaratnākara (p. 57), which adds that ‘darśanaprātibhāvya’ includes the surety for trust also [this is clear from Yājñavalkya, 254, where both are put on the same footing] — the second half is quoted on p. 43 where ‘dānapratibhū’ is explained as ‘the surety who had promised I shall pay,’ — and ‘dāyādān’ as ‘sons.’

(1) ‘Darśana-pratibhū’ is the person standing surety with the promise ‘I shall produce this man when required’; — (2) Pratyayapratibhū is one who says ‘give him the loan on my trust’; — (3) Dānapratibhū’ — who says ‘give him the loan, which, if he does not pay, I shall pay.’

The verse is quoted in Kṛtyakalpataru (74a and 76b).

Comparative notes by various authors:

(verses 8.159-162)

See Comparative notes for Verse 8.159.

VERSE 8.161

Section XXVIII - Sureties (pratibhū)

अदातरि पुनर्दाता विज्ञातप्रकृतावृणम् ।
पश्चात् प्रतिभुवि प्रेते परीप्सेत् केन हेतुना ॥१६१॥

adātari punardātā vijñātaprakṛtāvṛṇam |
paścāt pratibhuvi prete parīpset kena hetunā ||161||

“By what means then would the creditor seek to obtain his dues, in the event of the death of the surety other than that for ‘payment,’ whose character is fully known?” — (161)

Medhātithi’s commentary (manubhāṣya):

Having raised a question by means of the present verse, the Author answers it in the next verse: and the grounds for doubt are expressed by means of the two words ‘other than that for payment’ and ‘whose character is fully known’; — the three words with the locative ending — ‘adātari,’ ‘pratibhuvi’ and ‘vijñātaprakṛtau’ being construed together.

‘By what means would the Creditor seek to obtain his dues?’ — Should he seek to obtain it entirely by his own operations? Or should he also urge the surety’s son?

“Why should there be any such doubt, when it has been distinctly asserted that in the case of the death of sureties other than that for payment, the sous shall not be liable? — what connection then can the sons have with such dues?” The doubt arises because the surety is one ‘whose character is fully known’; which means that it is fully known that the man had received payment for becoming ‘surety ’; and this fact, being known, might give rise to the idea that his sons should be liable; since it is possible that the amount paid to the surety was for the purpose of paying off the debt in question.

The particle ‘punaḥ,’ ‘then,’ serves to distinguish the present from the preceding verse; the meaning being — ‘if the liability falls upon the sons of the surety for payment only, then in the case of the death of one who is surety not for payment, from whom would the creditor, after his death, seek to obtain his dues?’

The rest has been already explained.

‘Parīpsā’ is seeking to obtain. — (101)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 43), which takes it as putting the question which is answered in the next verse. It adds the following notes: — ‘Adā tari’, i.e., a surety other than the one for payment (i.e., the surety for appearance and the surety for trust), — being ‘vijñātoprakṛti’ — i.e., being known to have stood surety after having received something in pledge from the debtor; and thus having its character fully known; — if such a surety dies , — ‘kena hetunā’ — by what means — is the ‘dātā’ — the man who advanced the loan, the creditor, — to receive back the debt? The work goes on to quote Halāyudha as explaining the term ‘vijñatoprakṛti’as ‘being known that he became the lagnaka (?) on receiving a pledge’, and regarding the verse as denying the creditor’s right to receive payment from the surety’s heirs on his death. But remarks that the net result of both explanations is the same.

This verse is quoted in Kṛtyakalpataru (74a), which has the following notes: — ‘Adātari’, a surety other than Dānapratibhū, — ‘dātā’, the creditor, — ‘vijñātoprakṛti’, one whose solvency is well known.

Comparative notes by various authors:

(verses 8.159-162)

See Comparative notes for Verse 8.159.

VERSE 8.162

Section XXVIII - Sureties (pratibhū)

निरादिष्टधनश्चेत् तु प्रतिभूः स्यादलन्धनः ।
स्वधनादेव तद् दद्यान्निरादिष्ट इति स्थितिः ॥१६२॥

nirādiṣṭadhanaścet tu pratibhūḥ syādalandhanaḥ |
svadhanādeva tad dadyānnirādiṣṭa iti sthitiḥ ||162||

If the surety were one to whom money had been made over and who had enough money, — then he to whom it had been made over shall pay it out ok his own property; such is the settled rule. — (162)

Medhātithi’s commentary (manubhāṣya):

If the surety is one who is ‘Nirādiṣṭadhanaḥ,’ a person to whom money has been handed over by the debtor, with the instruction — ‘In the event of my being unable to pay, you will please clear oil the debt with this,’ — and hence ‘alandhanaḥ,’ having ‘enough money’; — i.e., who had made over to him money sufficient to pay off the whole amount due to the creditor-then he should be made to pay. But if the amount made ever to him was small, while the amount of the debt is large, then he should not be made to pay.

This verse supplies the answer to the question in the preceding verse.

Though the money had been made over to the surety, yet it is the son who is to be made to pay out as of his own property (the surety having died). Hence the words should be construed to mean ‘the son of the surety to whom money had been made over’; as it is the son that forms the subject-matter of the context; as for the surety himself, his liability would follow from the mere fact of his being a ‘surety.’

‘Such is the settled rule,’ — ordinance deduced from the scriptures.

What is intended having been already expressed by the term ‘alandhanaḥ,’ ‘who had enough money,’ — the addition of the term ‘nirādiṣṭadhanaḥ,’ ‘to whom money had been made over,’ is due to the fact of the treatise being a metrical one (which admits of superfluous words and expressions). — (162)

Explanatory notes by Ganganath Jha:

‘Alandhanaḥ’ — Qualifies the surety (Medhātithi, Govindarāja and Nārāyaṇa); — it qualifies the surety’s heir (Rāghavānanda); — Nandana reads ‘alakṣitaḥ’ and explains it as ‘if the surety who received the money is not found.’

This verse is quoted in Vivādaratnākara (p. 48), as providing the answer to the question put in the preceding verse. It adds the following explanation: — If the surety, to whom money had been handed over (nirādiṣṭa) by the debtor, is ‘alandhanaḥ’, — i.e., he has really got the money, — then, on his death, the ‘nirādiṣṭaḥ’ — i.e., the son of the surety to whom money had been handed over — should pay the debt out of his own property. The term ‘nirādiṣṭaḥ’ is applied figuratively to the son.

It is quoted in Kṛtyakalpataru (74a), which has the following notes: — ‘Nirādiṣṭadhana’, is the surety to whom enough money had been handed over by the creditor, to cover the amount of surety involved, — ‘alandhanaḥ’, possessed of sufficient property, — the second ‘nirādiṣṭa’ stands for the son of the person who had stood surety and has since died; the meaning being that the son should make good the debt for which his father had stood surety.

Comparative notes by various authors:

(verses 8.159-162)

See Comparative notes for Verse 8.159.

VERSE 8.163 [Contracts, when invalid]

Section XXIX - Contracts, when invalid

मत्तोन्मत्तार्ताध्यधीनैर्बालेन स्थविरेण वा ।
असम्बद्धकृतश्चैव व्यवहारो न सिध्यति ॥१६३॥

mattonmattārtādhyadhīnairbālena sthavireṇa vā |
asambaddhakṛtaścaiva vyavahāro na sidhyati ||163||

A transaction is not valid when effected by one who is drunk, or insane, or distressed, or wholly dependent, or minor, or senile, or unauthorised — (163)

Medhātithi’s commentary (manubhāṣya):

The term ‘vyavahāra’ is synonymous to ‘kārya,’ which stands for all such transactions as gifts, deposits, sales and so forth, as also the documents supporting these; — all this is ‘not valid’; i.e., even though it has been done, it is as good as undone.

‘Drunk’ and ‘insane’; — these terms have been already explained before.

‘Distressed,’ — suffering the pangs caused by the loss of wealth or relatives; as also one who apprehends an imminent danger.

‘Drunk’ and the other terms being used in their literal sense, the situation spoken of here is applicable only so long as the men are actually under the influence of ‘drink’ and other conditions.

What is mentioned here is only by way of illustration; and it stands for ‘any man who is not quite in his senses.’ To this end it has been declared — ‘Business should be done with a man when he is in his senses; as when he is not under his senses, he is not master of himself, and this invalidates the transaction.’ A man is said to be ‘not in his senses’ when his mind is perturbed and he is incapable of understanding his business. This has been thus described — ‘men beset with lust and anger, or distraction or dangers and vices, as also those under the influence of love or hatred are said to be ‘not in their senses’ (Nārada, 1.41). In this text, the first line has to be treated as a double compound term ‘kāma’ to ‘vyasana’ for one copulative compound, and this with the participal adjective ‘pīḍita’ forms the Instrumental Determinative Compound, in accordance with Pāṇini, 2.1.32; hence the man excluded is one who is actually suffering from the mentioned distractions. Thus the man who is ‘beset with lust’ is always hankering after the embraces of the woman he loves; — the man who is preoccupied with gambling or other similar things is said to be ‘beset with distractions.’

Such persons as have been enumerated here, — even though they be real owners of the property concerned in the transaction, — are not in a position to grasp the real nature of ‘ownership’ or ‘surety’ or such other details of a transaction; and as such their action cannot he regarded as valid. And the reason for this lies in the fact that having had their minds preoccupied by other things, they cannot clearly grasp what they are saying, when, on being asked by some one, they may say — ‘give this to such and such a man,’ or that ‘I have promised to be surety for such an amount, or for such an object,’ and so forth. In fact they accept anything that the man asks for, being desirous as he is of getting rid of the man whose presence is an obstacle to what may be engaging attention at the time — and they say ‘you go, I shall do all that you say,’ and thus place themselves entirely under the control of another person. This is what is meant by what has been said above regarding the man being ‘not master of himself’; and the meaning is that ‘just as the action of the man who is not master of himself is not valid, so also is the action of one who, though master of himself, is under the influences mentioned’; and just as the man who is not master of himself cannot make use of what is his own, so also the man who is overpowered by lust and other things is unable to understand the details of the transaction and discriminate between its advantages and disadvantages; and in this sense he is ‘not master of himself.’

‘Distressed’ (in Nārada’s text) has been already explained. Though the terms ‘abhiyukta,’ ‘distracted’ and ‘ārta’ (distressed) denote the qualified person, yet in the context in which they occur they have to be taken as standing for the qualities of ‘distraction’ and ‘distress’ (these being construed with ‘pīḍita,’ ‘beset with’ ‘vices’ — arising from lust, anger and other causes, such as hunting and the like.

Any man who is devoting his entire attention to any matter is said to be ‘beset with distraction or vice’; as also is the person who, though not actually engaged in any pet vice, is rapt in expounding its virtues.

Or (with a view to retain the literal meaning of the terms ‘abhiyukta’ and ‘ārta’), the two terms ‘Kama’ (‘lust’) and ‘krodha’ (‘anger’) may be taken as standing for the ‘lustful’ and the ‘angry’; and in this case the participial adjective ‘pīḍita,’ ‘beset with,’ would be compounded with the copulative compound formed of only ‘danger’ and ‘vice’; the other terms of the compound standing by themselves.

‘Those under the influence of’ — i.e., overpowered by — ‘love and hatred’; — ‘Love’ means attachment to a person regarded as his own; when a man regards another as his own, — even though he be not actually related to him, — then, whenever he comes to think of him, or whenever anything good happens to him, he has a feeling of satisfaction; this is what constitutes ‘love.’ The reverse of this is ‘hatred’; when a man is regarded as one’s enemy, there is a feeling of satisfaction when anything wrong happens to him. Such is the nature of ‘love’ and ‘hatred.’

Under everyone of the conditions described, the man’s mind is perturbed, and unable to be fixed, even for a moment, upon the business in hand. People under such conditions say pne thing and do another. It is only when men are in this condition that they are really ‘not in their senses.’ Otherwise (if the words were taken in their literal sense), in as much as all men are (more or less) ‘beset with lust, etc., or ‘distressed’ by old age, or some disease of the eyes or of the head, — all would have to be regarded as ‘not in his senses’; and the ‘wholly dependent’ Born Slave, the son and the disciple and the wife would not be so regarded (even though, as ‘not master of themselves,’ these also have been declared to be persons whose transaction is not valid). Though literally the Born Slave alone is ‘wholly dependent,’ yet since this latter term has been taken to be indicative of ‘those who are not master of themselves,’ the son, the disciple and the wife all become included under this same category.

Anything that these persons do, in the shape of making gifts out of their own property and the like, after having obtained the permission of their master, is quite valid. Says Nārada (1.39.40) — ‘The transaction entered into by a minor, or by one who is not master of himself, is declared to be as good as undone’; and again, — ‘The Disciple is not master of himself, as it is the teacher in whom the character of the master rests; wives and sons and all such dependents as the slave and the like, are also not master of themselves; the master being the householder himself on whom the property has devolved from bis ancestors.’ (Nārada, 1.33.34.)

“What is said regarding wives not being masters of their property and husbands alone being the masters, cannot be right; since property being common to both, how can the husband alone, without the concurrence of his wife, he entitled to enter into such transactions as gifts, sales and the like?”

This has been already explained, by the following text of Nārada (1.26) — ‘All that is done by women is invalid, except in times of distress.’

Further, Nārada (1.42), having mentioned the ‘eldest members of the family,’ goes on to add that ‘it is only when the transaction of selling is entered into by him that it is valid’; and what is said here in regard to ‘selling’ applies to all transactions relating to property in general. So that, just as in the case of the junior male members of the family, so in the case of the female members also, ‘dependence’ means ‘absence of control’; and ‘ownership’ would be incompatible with this ‘dependence’; because ‘dependence’ denotes subjection to the control of others, i.e., acting up to the wishes of other persons. Thus then, if the ‘dependent’ person is incapable of making use of any property except in accordance with the wish of another person, what sort of ‘ownership’ would belong to him or her? It may he argued that ‘ownership’ and ‘dependence’ would be quite compatible, as in the case of the minor, — in the sense that while he is not fit to enter into any such transactions as gift, sale or pledge, yet he is at full liberty to spend the property upon himself; for his own enjoyment he is quite free to make use of it any way he chooses; while to the other transactions he would be entitled only after he has reached majority. But even this could not be possible in the case of women, who are never free from ‘subjection’ or ‘dependence’; as says Manu (5.147). — ‘Be she a minor, or a full-grown woman, or an elderly lady, the woman, by herself, shall not enter into any transaction; such is the settled law.’ It is for this reason that in the case of women, ‘ownership’ and ‘subjection’ have been held to be incompatible.

This ‘subjection’ of women however does not mean that women are not to make use of their property; all that is meant is that they are not to make improper use of it, in the shape of indiscriminate gifts or sale. So that what is meant by saying that ‘women are dependent upon others’ is that by themselves they are incapable of judging what would be beneficial for themselves, or what person deserves a gift of gold or land, or to whom a daughter should be given in marriage; or from whom a certain article should be purchased, or to whom something should be sold and so forth. It is for this reason that at the time that they are executing a bond or some such deed, it is necessary that they should obtain the sanction of their husband or some such relative; because if the business were done by herself alone, it would be open to her to say — ‘I know nothing about this, — I was cheated by you’; if, on the other hand, the sanction of the husband and the relations has been previously obtained, what could she say? It is in view of this that it has been declared — ‘Transactions entered into by women also are valid, if they are sanctioned by the husband, or by the son, in the absence of the husband, or by the king, in the absence of both husband and son.’

Too much of ‘subjection’ also has been qualified — ‘when permitted, she is fully capable of spending and selling.’ But what is meant by this is that, she is to be permitted to spend money for the up-bringing of children and other such matters, but never to alienate the ownership entirely.

Further, the declaration — ‘she shall be confined, or abandoned in presence of the family’ (Manu, 9.83) — also indicates that there is ‘subjection’ only of women, not of men; since even in the case of the outcast, it has been laid down that people should await the completion of the necessary expiatory rites.

It is in accordance with this view that, even in times of direct distress, there is to be no selling of male slaves.

Thus, so far as ‘subjection’ or ‘dependence’ is concerned, its exact nature as pertaining to the wife, the son, the disciple and the slave, is dependent upon the nature of the man’s ownership over each of these. And as the ownership over the family property rests exclusively in the master of the house, the wife has no right to perforin even sacrifices out of that property, except with her husband’s permission.

“We find that there are two declarations — (a) ‘on the death of the husband, the woman continues to live under her sons’; and again (b) ‘so long as his parents are alive, the man shall remain subject to them, even though he may have become old,’ — which latter places the son totally under subjection; so that these two texts are naturally contradictory.”

There is no contradiction: what is said in (b) is that ‘the son shall remain under his mother, during his minority’; and the subjection of the mother to the son [asserted in (a) ] means that he is to guard his mother’s property against dangers from thieves and others. And what is meant by the son’s subjection to his father refers to the state in which the son lives with the father and has not set up a separate household. When he has set up a separate household and acquired his own property, then ‘the son shall be treated as a friend, after the age of sixteen years’; which means that he is entirely master of himself.

The ‘minor’ referred to in the text is one who is below sixteen years of age, and has not entered business.

‘Senile’ — who has lost his memory and liecome incapable of transacting business. Though it is possible for such a man to be in his senses at times, yet his acts cannot be valid, since there can be no certainty regarding the condition of his mind. When however the old man’s wife is carefully looking after his affairs, if a certain act has been done with her sanction, it is to be regarded as valid.

‘Asambaddhakṛtaḥ’ — ‘effected by one who is unauthorised.’ — If a man transacts business on behalf of another person, without being authorised by him, — and he is neither his father nor brother, — it is not open to him to say — ‘this man owes a hundred to Devadatta.’ But when a number of brothers do business in common, and are equally entitled and capable of doing it, — if any one of them sells cattle or other property, or pledges a house or some such property, the transaction is quite valid.

The term ‘vyavahāra’ in the present text stands for all kinds of business, though from the context it would be restricted to debt-transactions only. — (163)

Comparative notes by various authors:

Yājñavalkya (2.31, 32). — ‘The King shall set aside transactions effected either forcibly or under pressure; as also those effected by women, or during night, or within the house, or outside the village, or by enemies. A transaction is not valid when effected by one who is mad or drunk or distressed or in trouble, or an infant, or frightened and so forth, — as also what has been brought up by a person not related to either party.’

Nārada (1.26, 29, 31, 39-41). — ‘The sages declare that the transactions of a woman have no validity; specially, gift, hypothecation, sale of a house or a field. The transactions of a slave are declared invalid, unless they have been sanctioned by his master. A youth who, though independent, has not yet arrived at years of discretion, is not capable of contracting valid debts. If a boy, or one who possesses no independence, transacts anything, it is declared an invalid transaction by persons acquainted with the law. That also which an independent person does, who has lost control over his actions, is declared an invalid transaction. Those persons are declared to have lost control over their actions who are actuated by love or anger, or tormented, or oppressed by fear or misfortune, or biassed by friendship or hatred’

Nārada (Aparārka, p. 638). — ‘Any transaction that has been effected by women, or at night, or outside the village, or inside a house, or at night, should have to he ratified again.’

Bṛhaspati (8.22, 23). — ‘A document executed by a mad man, an idiot, an infant, one who has absconded through fear of the King, a bashful person, or one tormented by fear, — is not invalidated (by failure to produce its author). — But as a rule a document executed by a dying person, or enemy, one oppressed with fear, a suffering person, a woman, one intoxicated or distressed by a calamity, or at night, by fraud or by force, — does not hold good.’

VERSE 8.164

Section XXIX - Contracts, when invalid

सत्या न भाषा भवति यद्यपि स्यात् प्रतिष्ठिता ।
बहिश्चेद् भाष्यते धर्मात्नियताद् व्यवहारिकात् ॥१६४॥

satyā na bhāṣā bhavati yadyapi syāt pratiṣṭhitā |
bahiśced bhāṣyate dharmātniyatād vyavahārikāt ||164||

No contract, even though substantiated, is valid, if what is contracted for is contrary to law or to established custom. — (161)

Medhātithi’s commentary (manubhāṣya):

Words expressive of something to be done is called ‘Bhāṣā,’ ‘contract’ in general; and what is there laid down should be done.

“Is it meant that no contract is valid?”

No; that only which is ‘contrary to law,’ — that is regarded as ‘contrary to law,’ ‘illegal,’ which is opposed to practice sanctioned by the scriptures; e.g., interest more than five per cent., the selling of wives and children, the giving away of one’s entire hereditary property and so forth.

‘Even though fully substantiated,’ — i.e., reduced to writing, or pledged by a surety, and so forth; — it is ‘not valid’

‘Custom’ — practice sanctioned by usage; — ‘established’ — long-standing, not modern.

This verse is supplementary to what has gone in the preceding verse, regarding the invalidity of gifts and other transactions effected by dependent persons and by persons not in their senses and so forth. — (164)

Explanatory notes by Ganganath Jha:

This verse is quoted in Kṛtyakalpataru (65b), which adds the following explanation: — An agreement, even though formally put in writing, has no legal force, if it is contrary to the laws and customs prevalent among business-men; and such an agreement cannot be enforced, — such agreement, for instance, as where a man who has children agrees to bequeath all his property to a stranger.

It is quoted also in Vīramitrodaya (Vyavahāra, 21b and 39b), which has the following notes — ‘Pratiṣṭhita’, free from the defect of being impossible and unknown and so forth, — ‘bhāṣā’, proposition, statement, — is not ‘satya,’ accepted by the king or the court, — ‘that statement which is contrary to all rules of business, even though it be established by evidence, oral and documentary, should not be accepted’; e.g., the statement that ‘this man has promised his entire property to me’, — when the man concerned is one who has got sons and oilier successors.

Comparative notes by various authors:

Viṣṇu (7.11). — ‘That instrument is termed proof which is not adverse to peculiar local usages, which detines clearly the nature of the pledge given, and is free, from confusion in the arrangement of t he subject-matter and in the succession of the syllables.’

Nārada (1.136). — ‘That, document is said to be valid which is not adverse, to the custom of the country, the contents of which answer to the rules regarding pledges and other kinds of security and which is consistent in import and language.’

VERSE 8.165

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