Studies in Ancient Hindu Polity (Based on the Arthashastra of Kautilya), Vol. I c14.s1.39

c14.s1.39

Now we turn to the legality of the object (उक्त) and consideration (वेतन) of a contract. The object and consideration must be legal, and be such as can be upheld by a law court according to equity and good conscience. In the case of a contract in which one party tries to take undue advantage of the other, the court will interfere in favour of the party who is at a disadvantage. A concrete example given in the Arthaśāstra will make it clear. If a person who is being carried away by flood, or is caught in a fire, or is in danger from wild animals, be rescued on his promise to give to his rescuer not only the whole of his property but also his sons, wife and himself as slaves, the proposer cannot be made to perform his promise, it being opposed to all justice and common sense, and therefore illegal.¹ The rescuer can realize only as much as is fixed by experts (क्रमशः) appointed by the law courts. Similarly, in the instance given of a contract with a public woman, improper demand made by her from her paramour or vice versa cannot succeed; the court does not support any such demand. Likewise, it will be seen from the passages already quoted that the general rule is that उपलिखित, i.e. fraudulent contracts, are void, but an exception is made in favour of the spies appointed by Government. They can in their capacity as spies achieve their object by fraudulent contracts and are not penalized for the fraud they commit. It seems to me that cases like the following are contemplated by this rule: A spy, for instance, makes friends with a person whom he suspects to be a thief, and gradually insinuating himself into his confidence, proposes to buy the goods he has stolen. After taking possession of the stolen goods, the spy refuses to pay the value promised and puts the machinery of the law against him instead. In such a case the law court punishes the thief, but it cannot punish the spy as well for the fraud he has committed; neither can the thief bring a suit against the spy on the same ground. Thus the law softens its rigour and legalizes an evil to suppress a greater evil.¹