History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.533

v4.c63.533

A great deal has been said by ancient writers about what persons are competent to enter into transactions (vyavahāra) The Arthaśāstra (in III. 1)⁶⁶¹ has a lengthy disquisition on it. Briefly, it holds that dependent persons, minors, extremely old people, those charged with grave sins, *sannyāsins*, persons who are devoid of a limb and those who are addicted to vices (like drinking and whoring) are incompetent and agreements made with such people are invalid. Among dependent people Kauṭilya mentions a son when the father is alive (and manages the affairs), a father when he has a son (who manages the family affairs), a brother who has left the family, a younger brother whose share has not been separated, a woman whose husband or son is alive, a slave or a hired servant. He states that these may enter into binding agreements if those on whom they are dependent authorize them to do so. He further says that contracts made by persons that are at the time of making them intoxicated or are under the influence of wrath or are distressed or are of unsound mind or under duress (imprisoned or confined) are invalid. Yāj. (II. 31-32) concisely puts down the same propositions by saying that all transactions brought about by force or fraud should be declared (by the king) to be unenforceable, so also those entered into by women or the other persons specified above or entered into at night, or in the interior of the house or outside the town or village (in a forest &c.) or with one's enemy or by persons unconnected with or unauthorized by the persons who are to be bound by them.⁶⁶² Manu (VIII. 165 and 168) also declares that all transactions (such as sale, mortgage, gift) brought about by force or fraud are null and void. Nār. IV. 26-42 treat this subject⁶⁶³ exhaustively. Some of Narada's dicta are interesting. He says: 'in this world three are independent viz. the king, the Vedic teacher and the head of the house in his own house (32). Wives, sons and slaves are not independent; the head of the house has independent power as to what belongs to him by inheritance (34).' Kāt. (497) also prescribes that one should not give a loan to women, minors or slaves. When the texts say that women are incompetent to make contracts, what is meant is that they cannot make contracts binding on their husbands or family or against the family property. Women are not inherently incompetent to deal with their own separate property except that the husband has some control (these matters will be discussed at length later on under strīdhana). Another proposition laid down by Yāj. II 23, Nār. IV. 97, Kāt. (517) and others⁶⁶⁴ is that in all transactions relating to a debt or any other title of law the last act is the deciding factor; but in the cases of gift, pledge or purchase each prior transaction (of gift &c.) is of superior efficacy to the succeeding one.⁶⁶⁵