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Section XXIX - Contracts, when invalid

योगाधमनविक्रीतं योगदानप्रतिग्रहम् ।
यत्र वाऽप्युपधिं पश्येत् तत् सर्वं विनिवर्तयेत् ॥१६५॥

yogādhamanavikrītaṃ yogadānapratigraham |
yatra vā'pyupadhiṃ paśyet tat sarvaṃ vinivartayet ||165||

Fraudulent mortgages and sales, fraudelent gifts and acceptances, as also all wherein he detects fraud — he shall nullify. — (165)

Medhātithi’s commentary (manubhāṣya):

‘Fraud’ is deceit; when a certain thing has been mortgaged fraudulently, — i.e., when it is found that it has been done in an improper manner, — then the king shall ‘nullify it’. A debtor, on being pressed by the creditor, may say ‘I have nothing’; — on which the latter may say, ‘you have a cultivated field, a barren plot, a house, give me these.’ In view of the possibility of this demand, the debtor mortgages his property beforehand, to a friend or relative, so that when the demand is actually made, he says — ‘all this is already mortgaged.’ In this case, even though the mortgage-bond may be there, it is easily perceived that there is no real mortgagee in the case; for if there were a real mortgagee, how could it he possible for the property to be still enjoyed by the alleged mortgager? In such a case, having found the mortgage to be fraudulent, the king should nullify it and make the debtor surrender to the creditor all his cultivated field and other property.

Similarly in a case whore the man has acquired a property in one form, but transferred it to another in another form, — this also is a ‘fraudulent transaction’; and in this case, when the fraud has been detected, the debtor should be made to execute another transfer-deed in the right form.

So also in the case of sales and other transactions. When a person sells a high-priced article, but does not receive its price from the buyer, but has declared to him ‘I have sold this, it is yours,’ — then after sometime, it is not open to him to say ‘I have not sold it, it is mine.’ In fact any rescission of sale cannot be permitted after the lapse of ten days; nor when the sale has been effected by a trustworthy person. That a certain selling-transaction has been fraudulent is to be ascertained, when it is found that either on account of some defect in the article sold, or some other cause, the article sold does not serve the purposes that it was alleged to be able to servo, or is found incapable of being treasured as a valuable thing (?).

‘Fraudulent gift and acceptance’; — though the act of giving involves that of accepting also, and hence the one would have implied the other, — neither being possible without the other, — yet the text has mentioned both, for the purpose of filling up the metre. Or such mention was necessary, as otherwise, if only one act were mentioned, the resultant penalty would fall upon the doer of that act only, and not on that of the other, on the ground of this latter not having been directly mentioned. Hence, in order to indicate that the penalty should be inflicted upon the giver and the receiver both, both the acts have had to be mentioned.

“In that case, on the same grounds, in the case of the acts of ‘fraudulent mortgage and sale’ also, the other party to the transaction, — the doer of the act of buying for instance — should have been mentioned.”

It is not absolutely necessary to do so; since the requisite information is supplied by other Smṛti-texts; and since all the Smṛti-texts treat of a common subject, they can always be taken as one conglomerate whole.

E.g., when a thing is owned by two persons, if one of them, after having made a compact with the receiver, makes the other partner make the gift to him, — this is a ease of ‘fraudulent gift and acceptance.’ The compound ‘dānapratigraham’ is treated as singular, because ‘dāna’ and ‘pratigraha’ together form a copulative compound.

‘All wherein he detects fraud.’ — ‘Fraud’ means deceit. Even apart from the acts that have been specified, there are various kinds of fraudulent transactions. For instance, on being pressed by his creditor, a debtor approaches a wealthy person with the appeal — ‘until yon agree to stand surety for me, I shall not leave you’; — whereupon the wealthy man makes a secret compact with the creditor — ‘accept mo as the man’s surety, and during all this time I shall go on tormenting him, he has done me much wrong, I am standing surety for him only for the purpose of tormenting him, and I shall not be liable to pay anything on his account’; — thereupon the creditor says openly to the debtor, — ‘If you cannot produce a man who will stand surety for you, nor do you propose to liquidate the debt by manual labour or such other means, then your property must be forfeited’; — being thus pressed he approaches the aforesaid wealthy person, who however says — ‘I have never before had any business-transaction with him’; but he later on says again, ‘all right, I shall be your surety’; and the debtor also, in view of the trouble in store for him, accepts it.

What is said here should be taken as applying to all such transactions as relate to trades and crafts and so forth It is only by way of illustration that the acts of ‘gift, mortgage, and sale’ have been specially mentioned. The meaning thus is that whatever transaction the king finds out to be fraudulent, ‘he shall nullify’; even though it has been effected, he shall declare it to be not-affected, cancelled, shall not regard it as valid, — and he shall also punish both parties to the transaction. — (165)

Explanatory notes by Ganganath Jha:

This verse is quoted in Parāśaramādhava (Vyavahāra, p. 162), which explains ‘Yoga’ as ‘obtain another’s property, without any right to it, by means of begging and such other means’, — ‘ādhamana’ as ‘pledge’; — and the compound ‘Yogādhamanam’ as ‘Yoge ādhamanam’, ‘pledging of what does not rightly belong to one.’

It is quoted in Vyavahāramayūkha (p. 90), which explains ‘Yoga’ as ‘fraud’; and adds that the king shall nullify every transaction in connection with which he detects some fraud; — in Kṛtyakalpataru (65b) which explains ‘upadhī’ as fraud, — ‘yogā’ as ‘deceit’; — and in Vīramitrodaya (Vyavahāra, 39b), which has the following notes: — ‘Ādhamana’ is pledge, — ‘yoga’ is deceit, — ‘upādhi’ is fraud; — and adds that all fraudulent transactions are null and void.

Comparative notes by various authors:

Viṣṇu (7.7). — ‘A fraudulent document makes no evidence.’

Yājñavalkya (2.89). — ‘A document written in one's own hand, even when not attested by witnesses, is to be accepted as evidence, except when it has been obtained by force or fraud.’

Kātyāyana (Aparārka, p. 686). — ‘A document becomes nullified by the defect of witnesses, or of the scribe, as also by reason of fraud on the part of the creditor.’

Yama (Parāśaramādhava-Vyavahara, p. 162). — ‘What is given under force, or enjoyed forcibly, or made to be written forcibly, — all transcations effected under force, Manu has declared to be fit for being nullified.’

Nārada (1.137). — ‘A document is invalid which has been executed by a person intoxicated, by one charged with a crime, by a woman, or by a child, or that which has been caused to be written by forcible means, by intimidation, or by deception.’

Bṛhaspati (8.21, 23). — ‘Forgery may be found out by internal evidence and legitimate titles...... A document executed by fraud, or by force, does not. hold good.’

VERSE 8.166

Section XXIX - Contracts, when invalid

ग्रहीता यदि नष्टः स्यात् कुटुम्बार्थे कृतो व्ययः ।
दातव्यं बान्धवैस्तत् स्यात् प्रविभक्तैरपि स्वतः ॥१६६॥

grahītā yadi naṣṭaḥ syāt kuṭumbārthe kṛto vyayaḥ |
dātavyaṃ bāndhavaistat syāt pravibhaktairapi svataḥ ||166||

When the borrower is lost, and the expenditure was incurred by the family, the debt is to be paid by the relatives out of their own property, even though these may have been separated. — (166)

Medhātithi’s commentary (manubhāṣya):

It has been declared that the debt is to be repaid by the man by whom it was contracted, and in his absence by his son or grandson, and in the absence of those hitter, by any one who inherits his property; and from this it would seem that no one else was liable in any circumstances. It is in view of this that the author adds the present verse.

If the man who contracted the debt is ‘lost’ — i.e., dead or gone abroad, ‘and the expenditure was incurred by the family,’ — then that debt ‘is to be paid by bis relatives’; i.e., by his brother or nephew or uncle, etc., — ‘even though these may have been separated’ — i.e., had divided their property; — ‘svataḥ,’ i.e., out of their own property.

The debt that has been contracted by one among several brothers 1ms to be repaid out of the common household, specially if there has been no division among them. To this end we have the declaration -1 The debt that has been contracted by an unseparated uncle or brother, or by the mother, for the sake of the family, all this is to be paid out of the common property, so that from among the undivided members of a family, if any one has contracted a debt for the sake of the family, it should be paid by all other members, — brother, uncle, nephew or cousin; but not so, if the debt contracted was not for the use of the family.’ The term ‘unseparated’ implies that debt for the use of the whole family is generally contracted only by such persons; for people who have become separated are never found to be contracting debts for the maintenance of families other than their own.

‘Even though these may hare been separated’; — the term ‘even’ implies that it has to be paid of course by those who are not separated. If it so happens that from among separated brothers, one goes abroad, without making any provision for his family, and another, being of a magnanimous temperament, takes upon himself the burden of maintaining his family during his absence — then the absentee should, on his return, repay any debts that his separated brother or uncle may have contracted on behalf of his family. — (166)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 53), which adds the term ‘svataḥ’, which means ‘out of their own property’, and implies that in a case where even among divided co-sharers, if one has contracted a debt for the purpose of the maintenance of all co-sharers, and he, for some reason or other, such as death and so forth, is unable to repay it — then the debt should be paid by all the other co-sharers.

It is quoted in Aparārka (p. 647); — in Smṛtitattva (II, p. 178), which explains ‘svātaḥ’ as ‘from his own property;’ — in Kṛtyakalpataru (76a); — and in Vīramitrodaya (Vyavahāra, 110a), which says that the explanation given by the ‘Vṛttikāra’ is that ‘when a man who borrowed the money goes away or dies, and the money was spent by him for his family, then the debt is to be repaid even by such of his collaterals as may have been living separately from him’, — what to say, regarding those who might have been living with him. It demurs to this explanation and quotes the explanation of the ‘Mahābhāṣya’ as that separated collaterals, like the uncle and so forth, should repay the debt out of their own property.

Comparative notes by various authors:

(verses 8.166-167)

Yājñavalkya (2.45, 46). — ‘Any debt that may have been contracted for the benefit of the family, on the death or during the absence of the master of the house, by such members as have not become divided, shall be paid by all those who inherit the property. But the woman shall not pay the debt contracted by her husband or son; nor the father, the debt contracted by the son, — except when the debt is one that has been contracted for the benefit of the family.’

Nārada (1, 2, 3, 10-18). — ‘The father being dead, it is incumbent on the sons to pay his debt, each according to his share, if they are divided; if they are not divided, the debt must be discharged by that son who becomes the manager of the family-estate. That debt which has been contracted by an undivided paternal uncle, brother, or mother, for the benefit of the household, must be discharged wholly by the heirs. A father may not pay the debt of his son; but the son must pay the debt contracted by his father; excepting those that may have been contracted from love or anger, or for spirituous liquor, games or bailments. Such debts of a son as have been contracted by him by his father's orders, or for the maintenance of the family, or in a precarious situation, — must be paid by the father. What has been spent for the household by a pupil, apprentice, slave, woman, menial, or agent, must he paid by the head of the household. When the debtor is dead, and the expense has been incurred for the benefit of the family, the debt must he paid by his relations, — even though they he separated from him in interests. The father, uncle, or eldest brother, having gone abroad, the son (or nephew or younger brother) is not bound to pay his debt before the lapse of twenty years. Every single coparcener is liable for debts contracted by another coparcener, if they were contracted while the coparceners wore all alive and undivided. But after their death, the son of one is not hound to pay the debt of another. The wife need not pay the debt contracted by her husband, nor one contracted by her son, except if it had been promised by her, or contracted in common with her husband. A sonless widow, and one enjoined by her dying husband (to pay his debt), must pay it. Or it may be paid by one who inherits the estate — liability for debts going with the right of succession. A debt contracted by the wife shall never hind the husband, unless it had been contracted at a time when the husband was in distress. Household expenses are indispensably necessary.’

Bṛhaspati (11. 49-52). The father’s debt, on being proved, must he paid by the sons as if it were their own; the grand-father’s debts must be paid by his son’s sons, without interest; but the son of the grandson need not pay it. When a debt has been incurred for the benefit of the household, by an uncle, brother, son, wife, slave, pupil or dependant, it must be paid by the head of the family. Sons shall not be made to pay a debt incurred by their father for wine, for losses at play, for idle gifts, for promises made under the influence of love or hate, or for suretyship; nor the balance of a lino or toll. The liability for debts devolves on the successor to the estate, when the son is involved in calamity.’

Viṣṇu (6.27-39). — ‘If he who contracted the debt should die, or become a renunciate, or remain abroad for twenty years, — that debt shall be discharged by his sons or grandsons; — but not by remoter descendants against their will. He who takes the assets of a man, leaving or not leaving male issue, must pay the sum due by him; and so mush he who has the care of the widow left by one who had no assets. A woman shall not be compelled to pay the debt of her husband or son; nor the husband or the son, the debt of his wife or mother; nor the father, that of his son. A debt contracted by parceners shall be paid by any one of them that may be alive; and so shall the debt of the father be paid by any one of the brothers, before partition; but after partition, they shall pay severally, according to their shares of the inheritance. A debt contracted by the wife of a herdsman, wine-distiller, public-dancer, washer or hunter shall be discharged by the husband.... The house-holder must pay that debt which may have been contracted by any person, for the behoof of the family.’

Katyāyana (Vivādaratnakara, pp. 50 and 54). — ‘If the father is an invalid, even though alive, — or if he has been away from the country for twenty years, — the debts contracted by him should be paid by his sons. The debt contracted by the family, either during illness, or during a calamity, or in connection with the daughter’s marriage, or a Śrāddha, should be paid by the head of the family.’

VERSE 8.167

Section XXIX - Contracts, when invalid

कुटुम्बार्थेऽध्यधीनोऽपि व्यवहारं यमाचरेत् ।
स्वदेशे वा विदेशे वा तं ज्यायान्न विचालयेत् ॥१६७॥

kuṭumbārthe'dhyadhīno'pi vyavahāraṃ yamācaret |
svadeśe vā videśe vā taṃ jyāyānna vicālayet ||167||

Should even a servant effect a transaction for the sake of the family, — the master, whether in his own country or abroad, should not repudiate it. — (167)

Medhātithi’s commentary (manubhāṣya):

To say nothing of the brother and other relatives: ‘for the sake of the family,’ if even a servant should ‘effect a transaction,’ — in the form of selling clothes or such things, of contracting debts and doing other kinds of business relating to the proper looking after and cultivation of fields and barren lands, — the master of the house, whether in his own country or abroad, on coming to know of it, ‘shall not repudiate it’; i.e, without thinking over it, he should approve it as properly done. The pronouns ‘that,’ and ‘what,’ refer to what is done relating to such fields and agricultural business as may he spoilt.

Others have taken this verse as a hortatory supplement to the foregoing verse, and not as an injunction.

But this is not right; as we find no grounds for taking it as a mere hortatory supplement.

It might be argued that what has been said in verse 163, regarding the ‘transaction effected by the drunk, the insane, the servant, etc.,’ as being done by persons not master of themselves, makes it clear that the transaction effected by the servant cannot he valid.

But this must refer to the cases where the master is present on the spot, and not otherwise; as in that case the family would he in the risk of being ruined. Hence during the master’s absence, what is done by the servant by the maintenance of the family must he regarded as valid (167)

Explanatory notes by Ganganath Jha:

‘Adhyadhīnaḥ’ — ‘Servant’ (Medhātithi and Nārāyaṇa); — ‘slave’ (Kullūka); — ‘Youngest brother and one in some such position (Rāghavānanda).

This verse is quoted in Smṛtitattva (II, p. 232) as indicating the necessary character of the maintaining of the family; — in Vivādaratnākara (p. 55), which explains ‘Ādhyadhīna’ as ‘servants and others,’ and ‘jyāyān’ as ‘the master’; — in Parāśaramādhava (Vyavahāra, p. 164), to the effect that a debt cannot be repudiated if it has been contracted for the support of the family, even if it may have been contracted by a dependant without the master’s permission; — in Kṛtyakalpataru (76b), which explains ‘adhyadhīnaḥ’ as ‘the slave and the like — and in Vīramitrodaya (Vyavahāra, 40a), which explains ‘adhyadhīnaḥ’ as ‘son, nephew, slaves and so forth.’

Comparative notes by various authors:

(verses 8.166-167)

See Comparative notes for Verse 8.166.

VERSE 8.168

Section XXIX - Contracts, when invalid

बलाद् दत्तं बलाद् भुक्तं बलाद् यच्चापि लेखितम् ।
सर्वान् बलकृतानर्थानकृतान् मनुरब्रवीत् ॥१६८॥

balād dattaṃ balād bhuktaṃ balād yaccāpi lekhitam |
sarvān balakṛtānarthānakṛtān manurabravīt ||168||

What is given by force, what is ennjoyed by force, what has been caused to be written by force, — all thansactions effected by force Manu has declared to be void. — (168)

Medhātithi’s commentary (manubhāṣya):

Just as what is done by minors and by persons who are not their own masters, or who are not in their senses, and what is done fraudulently, is not valid, so also is everything that is done by force. The sense of the present injunction thus is that ‘all transactions effected by force should be rescinded’; and ‘what is given,’ ‘what is enjoyed’ and ‘what is caused to be written’ have been mentioned only as examples.

‘What is given by force,’ — e.g., when useless fields and farms are given for purposes of cultivation: or when money is forcibly advanced on interest.: — all this being forced upon people who are not desirous of being burdened with such sifts, while they are at their own house (and have not gone to seek for them); and it is done on the strength of an ordinary bond (without witness, etc.).

‘All’ — i.e., the transactions similar to those mentioned.

Though this matter has been already dealt with under verse CLXV where all ‘fraudulent sales and mortgages, etc.’

are declared to be invalid, yet the two verses have been added for the purpose of including ‘fraud’ and ‘force’ also among the invalidating causes. Peculiar is the style adopted by Manu. All that is meant is that ‘transactions effected by persons who are drunk or insane or distressed, or minor or senile, and also those done by fraud or force, are not valid; — they are never valid or binding.’ — (168)

Explanatory notes by Ganganath Jha:

This verse is quoted in Smṛtitattva (II, p. 231); — in Kṛtyakalpataru (65b); — and in Vīramitrodaya (Vyavahāra, 39b and 60a).

Comparative notes by various authors:

[See the texts under 165.]

Viṣṇu (7.6). — ‘A document, if it has been caused to be written by force, makes no evidence.’

VERSE 8.169 [The Royal dues and the King’s duty regarding them]

Section XXX - The Royal dues and the King’s duty regarding them

त्रयः परार्थे क्लिश्यन्ति साक्षिणः प्रतिभूः कुलम् ।
चत्वारस्तूपचीयन्ते विप्र आढ्यो वणिङ्नृपः ॥१६९॥

trayaḥ parārthe kliśyanti sākṣiṇaḥ pratibhūḥ kulam |
catvārastūpacīyante vipra āḍhyo vaṇiṅnṛpaḥ ||169||

Three persons suffer for the sake of others: witnesses, surety and the judge: while four persons prosper: the brāhmaṇa, the affluent, the merchant and the king. — (169)

Medhātithi’s commentary (manubhāṣya):

It is only on being requested by another person that the witness, the surety and the Judge should either appear as a witness, stand surety or investigate case’s, — and not forcibly (thrusting themselves); hence if these persons should volunteer to do it, their action has no validity.

Or, the meaning may he that ‘these persons undergo suffering for doing the work of other persons, — and they have not. the slightest selfish motive, — hence they should not ho forced to do the work.’

The Brāhmaṇa and the rest, on the other hand, ‘prosper,’ being approached by others, lienee, the Brāhmaṇa also should not he forced, against his will, to accept a gift.

Or, the meaning may be that — ‘the prosperity of the Brāhmaṇa is for the good of others,’ — his action therefore is always for the sake of others, and not for his own, — hence in his case gifts and acceptances should not he rescinded.’ There is a popular saying to the effect that ‘a gift by force is condemned,’ but this does not mean that one should not make a person make gifts to others; the ‘force’ in this case (which is condemned) is ‘importunate begging.’

Similarly the ‘affluent,’ the rich man who makes a living by money-lending, should not be forced by such expostulations as — ‘why does this man advance money on interest to other persons and not to me?’

Or, the meaning may be that ‘no loan shall he forced upon an unwilling spendthrift; — as it is only when money is lent at the request of the other party that the money-lender prospers, and not when he forces the loan upon him, since such forcing is forbidden by law.’

Similarly, ‘the merchant,’ like the money-lender, carries on his business only with a view to add to his wealth. The ‘merchant’ is one who lives by buying and selling.

‘King’ — prospers only when receiving lines imposed upon persons charged before him, — and not by forcing or encouraging such suits and charges. To this end there is the declaration that ‘the king shall not encourage law-suits.’

The case of the ‘Brāhmaṇa’ and the rest has been cited only for the purpose of illustrating what is enjoined regarding the duty of the king.

Or, the whole of the present verse, as also the next, is meant to be illustrative of the entire section. — (169)

Explanatory notes by Ganganath Jha:

‘Kulam’ — ‘Judge’ (Kullūka and Govindarāja) — ‘undivided family’ (Nārāyaṇa and Rāghavānanda); — ‘member of a family’ (Nandana, who is misrepresented by Hopkins, who wrongly translates ‘Kulīnaḥ’ (?) as friend ).

VERSE 8.170

Section XXX - The Royal dues and the King’s duty regarding them

अनादेयं नाददीत परिक्षीणोऽपि पार्थिवः ।
न चादेयं समृद्धोऽपि सूक्ष्ममप्यर्थमुत्सृजेत् ॥१७०॥

anādeyaṃ nādadīta parikṣīṇo'pi pārthivaḥ |
na cādeyaṃ samṛddho'pi sūkṣmamapyarthamutsṛjet ||170||

Even though reduced (in circumstances), the King shall not take what ought not to be taken; and even though affluent, he shall not relinquish what ought to be taken, be it ever so small. — (170)

Medhātithi’s commentary (manubhāṣya):

Excepting his legal dues, in the shape of taxes, tines and duties, all that belongs to the citizens is ‘what ought not to be taken’ by the king, even though his treasury may have become depleted. But what is legally his due, — by reason of his arranging for the security of their life and property-even a pice of that he shall not relinquish. Since it has been laid down that — ‘the King shall increase his treasury in the manner of the ant-hill.’ — (170)

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