History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.532

v4.c63.532

Our writers do not set out with an analysis of the conception of contract in general. They had before them the ancient 18 titles of law, many of which related to various kinds of contracts and therefore they take up one title after another, in the order contained in Manu or in Nārada (as the Sm. C. II. p. 206 expressly says). But it is not to be supposed that they did not evolve certain general principles about contracts. They do say a good deal about the competence of persons to enter into contracts, about fraud vitiating all contracts, about damages for breach of contract &c. Similarly the dharmaśāstras do not lay down a general Code of rules applicable to all transfers of immovable property, nor do they treat of transfers by way of sale, mortgage or gift in separate sections. What they have to say on these transfers is tacked on to some *vyavahārapada* e. g. they speak about sales and exchanges of land under asvāmi-vikraya and sīmāvivāda, about gifts under dattāpradānika and about mortgages under ṛṇādāna. As this work has to represent what the ancient law was like the same arrangement has been followed here. Similarly the law of crimes is not to be found in one place. It is scattered under different titles of law such as vākpāruṣya, daṇḍapāruṣya, sāhasa, strīsaṅgrahaṇa and steya; nor is there a complete analysis of intention or motive or of the right of private defence, although all these subjects are briefly dealt with in the smṛtis in different places.