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Published: Fri, 02 Feb 2018
Vyavahara the ancient indian law system
During ancient times when people were DHARMA abiding and truthful there existed neither hatred nor envy nor any legal disputes arose, DHARMA was obeyed voluntarily. As the practice of DHARMA declined law suits or VYAVAHARA were invented and the King was entrusted with the power to decide law suits as he had the sanction of DHARMA to enforce obedience to, and to order punishment for disobedience of DHARMA.
When the violations of DHARMA became frequent, the society invented the machinery and procedure for enforcement of law. This situation leads to the necessity of codification. Consequently law regulating civil rights and liabilities and law declaring offences and prescribing penalties on all important matters were codified and arranged topic wise from time to time by eminent authors.
Etymologically, VI means ‘various’ AVA means ‘doubts’ and HARA means ‘removing’. Therefore the term VYAVAHARA means, ‘removing of various doubts’.
VYAVAHARA means proceedings in a court of law between two parties in which the violation of DHARMA is established by effort.
The word VYAVAHARA also means a ‘legal proceeding’. This term is in vogue even to this day. The branch or division of law which regulated the rights and liabilities of parties in a legal proceeding was therefore called VYAVAHARAPADA. This corresponds in modern times to an enactment on a particular topic. From very ancient times the disputes or laws have been arranged under eighteen topics.
The eighteen topics of VYAVAHARA are:-
DISPUTE BETWEEN MASTER AND SERVANT
OFFENCE BY VIOLENCE
DUTIES OF HUSBAND AND WIFE
PAYMENT OF DEBTS
SALE WITHOUT OWNERSHIP
JOINT UNDERTAKINGS (PARTNERSHIP)
RESUMPTION OF GIFT
PAYMENT OF WAGES
VIOLATION OF CONVENTION OF GUILDS AND CORPORATION
SALE AND PURCHASE
BETTING AND GAMBLING
The writers didn’t make any distinction between civil wrongs and criminal wrongs but later writers divided these eighteen topics into two branches. These two branches of Vyavahara- one arising out of wealth and the other out of violence. Fourteen of them arise out of wealth and the remaining four out of violence.
Fourteen topics arising out of wealth are:-
Concerns of a partnerships
Non-payment of wages
Disobedience of contracts
Sale without ownership
Revocation of sale and purchase
Breach of agreements
Law between husband and wife
Law of inheritance
Gambling with dice
The four topics arising out of injury are:-
Robbery, dacoity and murder
Adultery and rape
Apart from eighteen major topics, law had been laid down on a variety of subjects under the heading ‘miscellaneous matters’. Out of these some belong to the civil branch and others to the criminal branch of law. These have been classified and given separately as ‘civil miscellaneous’ and ‘criminal miscellaneous’ at the end of the civil and criminal topics respectively.
In this research I will be confining my scope to the law of contracts prevailing during the ancient times as compared to the Indian contracts act 1972 and the crimes of violence as compared to the Indian Penal Code.
RULES REGUALTING CONTRACTS (SAMAYA NIYAMAHA)
There was no independent topic of general law of contracts. The topics of debt, deposits, sale without ownership, mortgages and gifts were contractual in nature. The rules regulating contracts during the ancient time were very similar to the system followed even today.
The rules laid down shows the transparency of the judicial system during that time. Some of the rules relating to Contracts are as follows:
Persons competent to contract:
The rules clearly states that a contract entered by an insane or intoxicated person, a dependent, a minor or a very old person or by a person not authorized by the party on whose behalf he entered into the contract, is invalid. It also states that a convict is incompetent to contract. But a minor according to the laws is someone who has not attained the age of 16 years.
Restriction on dependents:
The rule states that a person even after becoming a major is incompetent to contract if he was a dependant. For this purpose ‘dependents’ was defined specifically. Kautilya gives a specific list of dependents. They are father’s mother, a son whose father is alive, a father whose son has become karta of the family, an outcast brother, younger brother of an undivided family, a woman whose husband or son is alive, a slave and a hired laborer.
Contract entered into by others not binding on women:
A woman should pay the debt incurred by her along with her husband or son or a debt incurred by herself but she is not liable to pay other kinds of debt. For example if the debt is incurred by the husband even along with his wife consent for immoral purposes, the wife is not liable to pay the debt.
Contracts made without understanding capacity:
A transaction entered into by a person who is intoxicated or insane or afflicted with disease or in distress etc shall not be upheld.
The Contracts would become invalid in certain cases
Contract against public interest.
Contracts opposed to law.
Contracts without free consent invalid.
Consideration implied for a valid contract:
The rules set out above are silent on the question of necessity of consideration. However it is significant that they insist on the existence of free consent and the absence of force, fraud and the like, which imply that consideration was necessary to create a valid contract, as normally no one would enter into a contract without consideration, unless the same was brought about by the existence of one or more of the vitiating circumstances.
Forfeiture of earnest money and further liability for breach of contract:
Where there is a failure to perform a contract even though an earnest had been given by one party, then the king should make the other party who is in default pay double of earnest. The purpose of taking an earnest is to make the party suffer the loss of it when he does not abide by the agreement.
New contract supersedes old one:
If a creditor or debtor revokes a previous agreement and makes another contract of the same description, in which a greater or lesser amount is stated, it is termed an alteration of a transaction.
Comparable provisions of the Indian Contracts Act, 1872
It is interesting to note that that the above general rules of contract laid down in the ancient law system are similar to those incorporated in section 11, 19 and 23 of the Indian Contract Act. Section 11 of the Contract Act lays down that a person to be competent to contract must be a major and of sound mind and not disabled under any law for the time being in force.
Section 14 lays down that contracts entered into under coercion or undue influence, or caused by fraud, misrepresentation or mistake, are not contracts entered into by free consent. Such contracts are voidable as laid down in the Act.
Section 23 states that any agreement entered into, the object of which is unlawful, is invalid. The illustration given under section 23 of the Contracts Act is similar to the one given by Medhatithi. That illustration states that an agreement by A to let her daughter for hire to B for concubinage is illegal and invalid as the object is immoral. On comparison we find the striking similarity between the latest law and the ancient law as to general principles required for bringing into existence a valid contract and the circumstances which vitiate the validity of a Contract.
Another important criterion for creating a valid contract under the Contract Act is the existence of consideration. This rule is mentioned in the ancient law and it says that existence of consideration as a condition for creating a valid contract.
The provision, which renders an earlier contract unenforceable when altered by a subsequent contract, is similar to section 62 of the Contract Act which prescribes that the effect of novation, recession or alteration of a contract is that the earlier contract becomes unenforceable.
On basic principles, such as competence of persons to enter into contract, and validity and enforceablilty of contracts, we find the provisions made in the ancient laws are more less in consonance with those incorporated in the Contract Act.
RULES REGUALTING CRIMES OF VIOLENCE (SAHASAM)
Whatever act done by force is called SAHASAM or heinous offence. (‘SAHASA’ means force)
The title explains that all offences committed by the use of force were classified under the heading SAHASA.
Robbing in the presence of guards or carrying away things by force is SAHASA of this kind, while mere theft is said to be a concealed act.
An analysis of the acts treated as offences under SAHASA shows that while the act of taking away property belonging to a person stealthily, without violence, came under STEYA (theft), every type of deprivation or loss caused to immovable property by the use of force came under the offence SAHASA.
Criminal assault on a woman was considered as an offence equal in magnitude to murder.
The offence of SAHASA was classified under three grades depending on the gravity of the offence:
Lowest: Destroying, reviling, disfiguring fruits, roots, water sources, agricultural implements and the like, by use of force, is SAHASA of the lowest level.
Middle: Taking away forcibly or after inflicting injury, clothes, cattle, food, household utensils and the like is SAHASA of the middle degree.
Highest: Manslaughter, by whatever means, indecent assault on woman and any other Injury affecting life is called SAHASA of the highest degree.
PUNISHMENT FOR SAHASA
Any person who is found guilty of having committed the offence of SAHASA must be punished in proportion to the gravity of the offence, subject to the condition that the minimum penalty shall be as follows:
For SAHASA of the lowest degree- fine not less than 100 panas.
For SAHASA of the middle degree- fine not less than 500 panas.
For SAHASA of the highest degree- fine not less than 1000 panas and corporal punishments including amputation of that limb with which the offence was committed, confiscation of entire property, banishment from the town and branding on the body with an appropriate mark of the offence.
The above penalty prescribed has to be inflicted on the person found guilty of the offence irrespective of his caste, except in that a corporal punishment should not be inflicted on a Brahmana. Instead, a Brahmana offender shall be punished by way of shaving his head, branding him on the forehead with the mark of the crime of which he had been convicted and parading him on an ass.
Punishment for manslaughter which was considered to be the worst form of violence was death by all means and their property was also confiscated.
When several people together beat a person and kill him, the guilt of causing death shall be fixed on him who strikes the fatal blow. Others who had assisted the commission of offence are also guilty and will be given suitable punishments.
A person who is convicted of an offence of the highest degree shall not be allowed to mix in society after the penalty is imposed. Other abettors may be allowed to mix with society after having been punished.
Penal liability personal for causing death intentionally for example a father is not liable for an offence of SAHASA committed by his son. An owner of an animal is not liable for punishment for any injury caused to another by the animal unless it was prompted by the owner to cause injury.
Punishment for abetment of SAHASA i.e. a person who causes the commission of a SAHASA shall be subjected to double the punishment and the person who causes it by bribing shall be punished fourfold.
Lighter penalty for offence committed out of negligence. He who forcibly occupies a house, a tank, a garden or a field, shall be fined 500 panas. A fine of 200 panas shall be imposed if the same act was committed out of negligence or by mistake.
Certain offences to be punished in the same manner as SAHASA. The offences specified are:-
Breaking into a house
Causing harm to neighbors
Abandoning one’s parents, sons, brother or sister
Sexual intercourse with a widow
Making counterfeit coins or false weights and measures
Quacks giving medicines
Right to self defense
Laws relating to Assault
Injury to the limbs of another, inflicted with one’s hand, foot, or with weapon or otherwise, or defiling him with ashes or the like, constitutes the offence of Dandaparushya (assault). ‘Danda’ means the object used for committing the offence and ‘Parushya’ means inimical behavior.
Definition: – The offence of Dandaparushya is committed when a person raises his hand to strike another or when he actually strikes another man or animal with a view to cause pain.
Classification of Dandaparushya:
The law classifies this offence into three categories:
Light: Raising of hand or weapon threatening to strike.
Middle: Actually making an attack (striking).
Highest: Causing injury
The various acts constituting the offence of Dandaparushya are illustrated by the law:
Raising hand to strike
Spitting on another
Holding the hair of another
Striking and causing pain
Injuring the limbs
Injuring cattle and other domestic animals
Holding one’s hand or foot
Pulling the leg, hair, clothes etc
Causing pain without shedding blood
Causing injury to eye
Causing injury by which blood comes out
Throwing impure substance on the body of another
Punishment of Dandaparushya:
Punishment for the offence of assault varied according to the gravity of the particular type of act committed as also the status and caste of the offender and the victim.
The punishment for causing hurt consisted of heavier fines and also in certain cases corporal punishment, depending on the gravity of the offence committed.
When after an altercation has commenced and both the parties become excited, he who restraints himself is respected and the one who proceeds to assault is to be punished.
When both are equally blameworthy, equal punishments shall be inflicted on them.
Corporal punishment shall be inflicted when the offence committed is against one’s teacher, preceptor or king.
He who causes bodily injuries to another shall pay the fine imposed and shall also pay the incidental expenses.
Comparable provisions in the INDIAN PENAL CODE:
Crimes of violence (Sahasam):
Whatever act is done by the use of force is called Sahasam or heinous offence. (‘Shasha’ means force)
The title explains that all offences committed by the use of force were classified under the heading Sahasa (acts of violence)
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