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Studies in Ancient Hindu Polity (Based on the Arthashastra of Kautilya), Vol. I c14.s4: § 4.—Deposit, Etc

Studies in Ancient Hindu Polity (Based on the Arthaśāstra of Kauṭilya), Vol. I c14.s4

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English

Contents

§ 4.—Deposit, Etc

c14.s4.1

The next item for our consideration in connexion with contract is the law relating to deposits.

c14.s4.2

There were two kinds of deposit, viz.:—

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(i) Sealed (उपनिवि) and

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(ii) Open (निक्षेप).

c14.s4.5

A *sealed deposit*, according to Yâjñavalkya, is an article enclosed in a box under seal which the owner delivers into the hands of the depositary without saying anything as to its nature.² An *open deposit* is not put under any cover, and the nature, quality, form, etc., of the article deposited are known to the depositary at the time of making the deposit.

c14.s4.6

² Yâjñ., II, 66 (M. N. Dutt's ed.); also Nârada, II, 5 (S. B. E.). Bṛihaspati, XII, 3 (S. B. E.), runs thus: "When a chattel enclosed in a cover and marked with a seal is deposited without describing its nature or quantity and without showing it, it is termed an *aupanidhika* deposit."

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The rules as to sealed deposits apply *mutatis mutandis* to open deposits, and *vice versa*.

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The acceptance of deposit is gratuitous, but the depositary is responsible for its safe custody. If he puts it to his own use, he has to pay a compensation (भोगवेतन) fixed according to the circumstances of the case, in addition to a fine of 12 paṇas. If use by the depositary or his carelessness diminishes the value of the article deposited, the loss has to be made good and the fine doubled. If it be either pledged, sold or wasted by him, a fine¹ is imposed; if exchanged

c14.s4.9

¹ The fine is चतुर्गुणपणम्. I have already pointed out the difficulty of giving a meaning to पणम् consistent with its use in other passages, *e.g.* that at p. 176, Arthaśāstra.

c14.s4.10

the Mitākṣarā should be noticed: "‘Nārada cited in the Mitākṣarā’: When a thing is deposited under seal, without mentioning its quantity, if its kind and form be unknown, it is considered an *upanidhi*; but the wise call a specified deposit *nikshepa*.

c14.s4.11

"‘If its kind and form be unknown’: if the depositary know not whether it be gold or silver or what. ‘Under seal’: secured by a private knot to prevent its being taken by another person, or secured by the impression of a seal on which particular letters are engraved; when a thing is so deposited, the bailment of it is *upanidhi*. A specified deposit (or the bailment of a thing of which the quantity, kind and form are mentioned) the wise call *nikshepa*."

c14.s4.12

or wilfully destroyed, its value is realized from the depositary. He is, however, exempted from liability if the deposit is lost, destroyed or damaged through no laches on his part, *e.g.*¹ by the ravages of hostile kings, wild tribes, or other invaders; by *vis major* such as flood or fire; or, during transit at sea, by the ship sinking or being plundered by pirates.

c14.s4.13

¹ प्रेतव्यसनगतं वा नोपनिधिमभ्याभवेत् ॥ (p. 178, *ibid.*). This passage most probably contemplates the destruction of the deposit along with the property of the depositary, in which case neither the deposit nor compensation can be demanded from him by the depositor. This meaning of the passage enables us to distinguish the case from those of destruction of the deposit by *vis major*, etc., at p. 177, which also excuse the depositary from all liability. The interpretation of the passage, viz. "When the depositary is either dead or involved in calamities, the deposit shall not be sued for," is opposed to all reason and justice; for, should not the heirs who get possession of the deposit along with other articles of the deceased, or the depositary himself though involved in calamity, be held responsible for the return of the deposit? For a parallel to the meaning that seems to me more reasonable, *vide* Nârada as quoted in Colebrooke, i, 282: "What is lost together with the property of the bailee is lost to the bailor; so if it be lost by the act of God or of the king, unless there was a fraudulent act on the depositary."

c14.s4.14

The deposit must always be returned to the actual depositor; otherwise the depositary is answerable.² If the depositary denies having received the deposit, the antecedent circumstances are examined; moreover, Kauṭilya by way of example mentions a few dodges which are employed in such cases to find out the truth, and which are similar to those enjoined by Manu. These artifices are meant for the protection of unwary people against the wiles of dishonest depositaries. The artisans, says Kauṭilya, are a class of this sort. They are very clumsy and incautious in their dealings, and make deposits without any evidence, documentary or otherwise. It is for such people specially that the aforesaid procedure is meant. Manu prescribes that "on failure of witnesses, let the judge actually deposit gold with the defendant under some pretext or other, through spies of suitable age and appearance, and afterwards demand it back. If the defendant restore it in the manner and shape in which it was bailed, there is nothing of that description in his hands for which others accuse him. But if he restore not that gold, as he ought, to those spies, then he shall be compelled by force to restore both the deposits."¹ The honesty of the bailee in the second transaction is taken as an index of his integrity in the first. This is the key to the various means mentioned by Kauṭilya for testing the honesty of the bailee. When a defendant denies having received an open deposit, for which there is no evidence, the plaintiff, with the sanction of the judge, takes a few men to the house of the depositary, stations them in a secret part of the house, but within hearing, and then goes to the bailee as if alone; and in the course of conversation with him tries to make him say the truth. The plaintiff may very likely succeed in the attempt, for the bailee does not know that he is being overheard by other people who will bear witness against him. If he unwarily says anything that may favour the plaintiff in his claim, the judge uses it when deposed to by the witnesses.

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² *Cf.* Manu, VIII, 185.

c14.s4.16

¹ Manu, VIII, 182-184.

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Another method used to elicit the truth is to employ a spy, who, in the guise of an old, diseased merchant, appears before the defendant depositary as if after a long journey through a forest, or in the middle of his professional tour, and seeks as a measure of relief to leave with him his chattels secretly marked. After some time he sends his brother or son to take back the articles. If they are returned quietly, the bailee proves himself honest; if not returned, he is found guilty in this as well as in the previous transaction and visited with the punishment prescribed for theft.

c14.s4.18

A third trick employed for the same purpose is that of a spy, in the guise of a respectable gentleman bent on renouncing the world, leaving an article in the hands of the defendant bailee. After a while he returns and claims it. If it is not returned, the bailee is punished as above.

c14.s4.19

Similarly, a spy may pretend to be a simpleton, and at night represent to the defendant bailee that for fear of being arrested on suspicion by a police officer for carrying an article through the streets, he wishes to leave it with him. Accordingly, he leaves it in his custody. But, in spite of this precaution, a police officer (who seems also to be employed to help him in this artifice) arrests him and puts him in *hâjat*, whence he demands the deposit back. If the bailee restores it, well and good; otherwise, he is punished.

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In these cases the chain of transactions by which the article in dispute passed into the defendant's possession, the validity of those transactions, and the social and financial position of the plaintiff are carefully examined.

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These artifices, it seems, were more frequently needed for cases of open deposit than for those of sealed deposit, the reason being that open deposits were often made in a hurry, the depositor having hardly any time or opportunity for taking precautions as to witnesses, etc.¹

c14.s4.22

¹ The materials for this part of the section have been drawn from Bk. III, pp. 177, 178, 180, 181, except where otherwise indicated.

Pledge (आधि)

c14.s4.t1.1

Kauṭilya does not expressly mention the rules to be followed when the article pledged is used, sold, pledged, lost or misappropriated, but leaves them to be inferred from the allied rules laid down in connexion with deposit. If the pledge be coupled with the condition that it will be used by the pledgee, then the pledgor can release it at any time he likes, and no interest is charged. In other cases the time is limited, and the interest accrues due for the period. A pledgee who refuses to return the pledge when duly demanded back by the pledgor is fined 12 paṇas. If the latter goes to release the pledge at a time when the former is away from home, he can redeem it by paying the money to the elders of the village;¹ or the then value of the pledge being ascertained, it may be left where it is, and interest ceases to accumulate.² If there be an apprehension that the pledge may depreciate, it may be sold, with the permission of the court, in the presence of the superintendents of pledges (प्राधिपाल), or of special Government officers (for whom, see infra³), or in the presence of the pledgor alone.

c14.s4.t1.2

¹ *Cf.* Yājñ., II, 63.

c14.s4.t1.3

² Yājñ., II, 64.

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³ प्राधिपालकः, *lit.* officers who provided against loss or destruction.

Mortgage

c14.s4.t2.1

A piece of mortgaged immoveable property may be of two kinds, viz. (i) yielding income without any labour, (ii) yielding income after labour being spent on it. When the money lent, as well as its interest, has been realized from the income of the mortgaged property, it shall be returned to the mortgagor with its value undiminished. If the mortgagee enjoys the mortgaged property without the sanction of the mortgagor, then it shall be returned with compensation for such enjoyment, after the capital lent is realized.¹

c14.s4.t2.2

¹ Cf. Yâjñ., II, 68, p. 178, Arthaśâstra.

c14.s4.t2.3

The rest of the incidents of mortgage are like those of deposit, with the necessary modifications. As regards the mortgage of lands, the restriction is that the revenue-paying lands can be mortgaged only to holders of such lands, and Brahmadeya (i.e. given away to Brâhmaṇs) lands only to owners of similar lands.²

c14.s4.t2.4

² Bk. III, p. 171.

Âdeśa (bill of exchange), etc

c14.s4.t3.1

Two other forms of contract next engage our attention, viz. Âdeśa (আদেশ) and Anvâdhi (অনব্যাধি). An âdeśa is literally an order, and it seems to mean an order to a third person to pay up a sum of money on behalf of the sender of the order. It is akin to a modern bill of exchange in its simplest form. Anvâdhi is, as Kātyāyana puts it, “ a bailment for delivery.”¹ Its incidents, according to Kauṭilya, are as follows:—If a person entrusted by a merchant with an article for delivery to a third person does not reach the destined place, is robbed on the way by thieves, breaks the article or abandons it, the merchant shall not be responsible; nor the kinsmen of the carrier if he dies on the way. Kauṭilya does not expressly mention other incidents of these two forms of contract, but leaves them to be inferred from those of deposit.

c14.s4.t3.2

¹ Colebrooke, vol. i, p. 278. “Kātyāyana: ‘When a thing is bailed with these directions, viz. deliver this, as by my desire, to such a man when he shall demand it for his own business, it is called anvādhi.’”

c14.s4.t3.3

In loan for use (याचितक)² and hire (अवक्रीतक), the article which forms the subject of the transaction has to be returned to the owner in the state in which it was received; but if it be lost or destroyed by lapse of time, by flood, fire or rough transit, by being confiscated by the State or stolen by thieves, it need not be made good.³

c14.s4.t3.4

² Vide Colebrooke, vol. i, p. 278; for fine prescribed for not returning article hired or borrowed, vide Bk. III, p. 198, Arthaśāstra.

c14.s4.t3.5

³ Bk. III, Arthaśāstra, p. 198, adds: “When a person does not return at the required time or place the property that has been hired or borrowed, pledged or deposited, he is fined 12 paṇas.”

c14.s4.t3.6

The rules of *open deposit* apply to these two forms of contract as far as possible.

Contract of service

c14.s4.t4.1

People near at hand should be called to witness the nature of the contract between a master and a servant. The wages fixed by mutual agreement shall be paid to the servant, but if no such wages have been fixed, then it will be in proportion to the time spent and the quality and quantity of the work done. If the wages be not settled, a cultivator shall generally obtain one-tenth of the crops grown by his labour, a herdsman one-tenth of the butter clarified by him, and a commercial agent one-tenth of the business transacted by him.¹

c14.s4.t4.2

¹ Bk. III, p. 183, Arthaśāstra.

c14.s4.t4.3

Artisans, artists, musicians, physicians, buffoons, etc., shall each get wages like others of his profession, or such wages as will be fixed by experts on evidence adduced. If no evidence be produced, it will be in proportion to the work performed. Fines are imposed for non-payment of wages, as also for denial of wages due.²

c14.s4.t4.4

² Ibid., p. 184.

c14.s4.t4.5

A servant neglecting or not doing work for which he has been paid is fined 12 paṇas. When incapable of working, or refusing to work on the ground that he is diseased, distressed or that the work is servile, he may get exemption, or take leave to have the work performed by a substitute whose wages will be in proportion to work done by him.¹ An employer refusing to accept the work duly performed by a workman, as also an employee not doing the work for which he has been engaged, is fined 12 paṇas, and the latter must never desert his work for a more lucrative job elsewhere. If an employer does not accept the services of a workman who according to contract presents himself for it, the latter will be deemed to have done his full duty. This is the view of some legal authorities, but Kauṭilya differs from them, and holds that wages should be given only for work actually performed and not for that left completely unfinished. If, however, the employer works the labourer ever so little and then unreasonably dismisses him, the unfinished work will be looked upon as finished and wages calculated accordingly. Variations of time or place are sufficient grounds for the annulment of a contract for service, and any work in excess of what is contracted for goes for nothing.

c14.s4.t4.6

¹ Lines 1 and 2, p. 185 of the text, seem to be defective.

c14.s4.t4.7

These rules also apply to workmen who have formed themselves into an association, with this difference that a grace of seven days is allowed them after the fixed period, after which they can have the work done by substitutes. Without the leave of the employer, they must never leave anything in the place of work or remove anything therefrom; for the former offence the fine is 12 paṇas, and for the latter 24. The members of an association may each receive the wages agreed to by him, or may divide the total wages earned by them all equally among themselves.¹

c14.s4.t4.8

¹ For the above, *vide* Bk. III, pp. 184, 185, Arthaśāstra.

c14.s4.t4.9

An agricultural labourer refusing to work for the person by whom he has been called from a different place, is fined twice the amount of his wages, and double the price of food and drink with which he may be provided. If he has been called for work in connexion with a sacrificial performance, he is fined twice his wages on his refusal to work. The fines thus realized go to the village fund.¹

c14.s4.t4.10

¹ Bk. III, p. 178, *ibid.*

c14.s4.t4.11

*Partnership.*

c14.s4.t4.12

(a) Traders or cultivators who engage in work after joining partnership shall apportion among themselves the profits, after the performance of the work in hand and before entering on a fresh one. The performance of work by a substitute does not abate the share of profit due to a partner. The traders shall have shares of profit of the partnership business immediately after the commodities in stock are sold out. The losses sustained by the goods during transmission are to be borne by the partners equally.

c14.s4.t4.13

A partner deserting his work is fined 12 paṇas, for he cannot withdraw from the business at will after it has been commenced. Theft committed by a partner for the first time should be pardoned and his dues paid; but a second such offence, as also his second untimely withdrawal, causes his expulsion from partnership. In grave offences, he is, in addition, treated as a criminal.

c14.s4.t4.14

The shares of profits of the partners may be equal or otherwise, according to contract among themselves.¹

c14.s4.t4.15

¹ For the above, *vide* Bk. III, pp. 185, 186, Arthaśāstra.

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(b) Priests officiating at a sacrifice shall share their earnings equally or as agreed to, over and above what may be specially due to each for his portion of work.

c14.s4.t4.17

In sacrifices like Agniṣṭoma :—

c14.s4.t4.18

A priest dying after the rite of Consecration is entitled to one-fifth of what he would have received for his full work.

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A priest dying after the rite of Soma-purchase is entitled to one-fourth of what he would have received for his full work.

c14.s4.t4.20

A priest dying between the rite of Madhya-mopasat and end of that of Pravargyodvāsana is entitled to one-third of what he would have received for his full work.

c14.s4.t4.21

A priest dying after the rite of Maya is entitled to one-half of what he would have received for his full work.

c14.s4.t4.22

A priest dying after the rite of Prātaḥsavana (libation of Soma during Sutya ceremony) is entitled to three-fourths of what he would have received for his full work.

c14.s4.t4.23

A priest dying after the rite of Madhyandina is entitled to the whole share, for by that time the sacrificial fees are all paid.

c14.s4.t4.24

In every sacrifice except Bṛhaspatisavana the sacrificial fee is paid.

c14.s4.t4.25

The above rules also apply to the fees paid during the series of sacrificial days called Ahargaṇa.

c14.s4.t4.26

During the ten days immediately following the death of an officiating priest, his work is performed either by those who are given their dues from the remnants of the offerings after the share of the deceased is paid, or by those who enjoyed his confidence.¹

c14.s4.t4.27

¹ The time-limit is ten days, because the near relatives of the deceased remain in mourning during the period. They continue the work after the lapse of the period.

c14.s4.t4.28

The death of the sacrificer himself must not put an untimely stop to the sacrifice: the priests are bound to finish it. The desertion of a priest or a sacrificer, one by the other, is punished with the first amercement. If the priest be a Brāhmaṇa who does not maintain a perpetual sacred fire, he is fined 100 paṇas, while the head priest and the sacrificer are each fined 1000 paṇas for such offence.

c14.s4.t4.29

As a sacrifice is defiled if an officiating priest happens to be the husband of a Śûdra wife, a thief, spirit-drinker, Brâhmaṇ-slayer, violator of teacher's bed, or receiver of condemned gifts, it is no offence to dispense with his services.¹

c14.s4.t4.30

¹ For the above, *vide* Bk. III, p. 186, Arthaśâstra.

Contracts of common interest

c14.s4.t5.1

If preparations are made for a public entertainment, an individual may help it up at will, either by subscription or otherwise; but in case he does not join it, then he and his dependents lose the right of enjoying it. Seeing or hearing stealthily at the place of entertainment is punishable with fines.²

c14.s4.t5.2

² Bk. III, p. 178, Arthaśâstra.

Cites (7)