A Study on the Civil Contract in Yuan Dynasty
|Course||History of Ancient China|
|Keywords||Transaction Identity Contract Civil Execution mechanism Civil laworder Yuan Dynasty|
The so-called "contract" in this paper refers to the written agreement of mutual interestsand identity arrangements between two or more parties based on relatively equal relationshipin the traditional Chinese. Contract, contract relationship and contract system are closelyrelated with the order. Contract is an important way to plan social relations, the developmentof contract relationship helps create free, equal, and harmonious society, and the contractsystem is the system environment of people’s contract environment and the important supportof contract order and social order. This paper, on the basis of a large amount of contractdocuments and historical literature, tries to define the appearance, system and features of thecontract relationship of Yuan Dynasty from the point of view of social order.In the Yuan Dynasty’s land sales contract, in addition to the several necessary factorssuch as the contract owner, the area, location, price and payment of the transaction subject,some details concerning the rights and obligations are needed to be defined, such as whetherthe subject is shared with others, the right ownership of the appendages of the land on saleand the payment of contract. The declaration and responsibility guarantee regarding that nodefects exist in the ownership of the farmhouse on sale is extremely important content incontract of land business in Yuan Dynasty. The legal perfections and restrictions regardingthe land sales contracts in Yuan Dynasty externally and macroscopically are embodied in thelawful adjustments of land sales contracts in Yuan Dynasty, such as the restriction of the tradesubject qualification of the young and widow, the control of the emerging of small-sizedindustries of those bigwigs and monks, the prohibition of the sale of ancestors’ cemetery,grave and trees. At the same time, the contract-signing and implementation procedures oftransactions of lawful farmhouse sales are specified. In addition, certain standardization andadjustment are made regarding the lawful form of farmhouse sales contract and the rightallocation of the parties concerned.Land tenancy and house lease is the contract relationship of the farmhouse owner’stransfer of the right to own, use, and manage the farmhouse. Restriction regulations of theobligations to pay the rent are the main content of the tenancy in the folk books of YuanDynasty. Dai-sige’s land lease contract unearthed in Heishui City is basically equivalent tothe lease contract except the fact that the article of the guarantee’s payment is not available.The content of the continuity, execution, change and cancellation of the lease contract isalways embodied in the folk business. For the purpose of alleviating social contradictions andstabilizing social order, the Yuan Dynasty government carried out compulsory intervention to the rent rate of folk rent contract relations, but it is very difficult to implement the regulationto the letter.The guarantee articles of agreeing on the interest rate, interest-paying mode, the agreeddeadline date, or debt obligation are mainly included in Yuan Dynasty’s lending contractdocuments, in addition to the name and address of the creditors, loan types and quota. In thecredit lending, the third person guarantee clause of the contract is an indispensable element.The guarantee’s obligation of Yuan Dynasty includes: the guarantor should bear theresponsibility for paying back the loans on condition that the debtor is at large or unable toreturn the loan before the deadline. Co-influenced by social structure, cultural tradition,ethical ideologies, and legal system, a constraining mechanism is established in order toensure the execution of the right for the loan in the guarantor-based loan contract by means ofcertain contract responsibility of the guarantors under certain conditions in spite of the factthat in practice guarantors generally don’t carry out their obligations to pay back the loan.While Yuan government issued restrictions to interest rate and quota, but high-interest loansof all kinds still exist. The involvement of bigwigs and officials into loan activities makes iteasy that the contract relationship is neither free nor equivalent, and is even misused but thefreedom of contract is not restricted, so their contract relationship is recognized, permitted,and protected. Different features and tendencies have been embodied in the nationalcompulsory interventions to folk private loans in Yuan Dynasty, that is, no inventionmeasures of large-scale and unconditional exemption of private loans are carried out, and atmost, interest is exempted. This reflects that the legal concept of the private rightsconsciousness is heightened in Yuan Dynasty compared to Tang and Song dynasties.There exists a written agreement in Chinese traditional society to materialize of hisidentity by means of a contract or transfer his identity wholly or partially with compensation,which is called identity contract in this paper and whose core is achieve the transfer of hisidentity and right by means of a contract. During the period of Yuan Dynasty, due to specificreasons and times background, the phenomenon of all kinds of legal and illegal populationtransactions of Tang and Song Dynasties is more prominent. The transaction contracts ofslave girls and maidservants are no different from those of farmhouses and horses and cows.The form of mortgage is usually adopted in the folk transactions of relatives, and theshouldering of unexpected responsibilities should be specified in the written contract inaddition to the mortgage price and redemption. The forms of mortgage employment,mortgage marriage, and mortgage sale are often adopted in the folk sales of relatives.Concubine agreement and contract marriage certificate are the models of indirect and obscure population transactions by means of marriage."Mortgage" refers to the fact that themortgagee should offer the mortgage money while the mortgagor can redeem the person afterpaying back the original mortgage money. Employment means that the employer should offerthe price, and it is needless to redeem the employee."Mortgage employment" has both thefeatures of "mortgage" and "employment". The identity right is transferred and allocatedbetween the extent of "sale" and "employment". In the employment contract relationship ofthe Yuan Dynasty, the period of employment contract is longer with outstanding personalfeature and generalized range of the obligations."Personal employment" reflects thesubordination relationship between the employer and the employee. In the short-termemployment relationship such as hiring a person for transportation, obligation range is limitedto definitely-arranged concrete work, and is manifested as simple labor commodity exchangerelationship without identity.The standardization, management, and adjudication of relevant disputes of the country tocontract relationship are the formal mechanism to establish the contract order. But because ofthe roughness and limitations of legislation of traditional contract, its role is extremely limited.A large number of civil contract relationships have been in a state of normal operation, whichmaintains economic and life order of the folk society. The important fundamental key lies inthe mechanism of the participation of the third party in the folk contract relationship. On theother hand, the article of breaking off a contract in Yuan Dynasty’s contract relationship is aself-execution mechanism to maintain the contract order, which exists in all kinds of othertypes of the contractual relationships widely with the exception of land sales contract.The contract relationships in Yuan Dynasty are diversified, by which, to a great extent,the folk social order is established and maintained. But, the contract of Yuan Dynasty ispractical for the sake of meeting the demand to coordinate the social and economicrelationships, and complicated contract rights and obligations are not involved. Accordingly,contract customs and practices are, to a great extent, the main existence forms of the contractsystem in Yuan Dynasty. Formal contract law is not systematic, nor does it have its owntheory.In the case of the relationship between national law and folk contract, national lawregards the acknowledgement of folk private agreement as the basic principle, and regardsnon-violation of relevant laws and regulations and harmlessness to social order and politicaldomination as its limit. The main purpose of the national adjustment is to strengthen theeconomic infrastructure and political ruling of the national political power, stabilize and coordinate social order. The spirit of the law is it is based on the theory of power unlike themodern contract law which is based on the theory of rights.In the case of the status and effect of contract relationship, some contract relationships arein fact in a state that ranges from being legal and illegal, and its effect is often in a state ofuncertainty. But even the effect of a legal contract is not necessarily established or inevitablefor the reason that the government is still likely to make a decision to cancel or change itseffect for the sake of maintaining the rule foundation and social order. This reflects that thefoundation of the contract law in Yuan Dynasty is the power-oriented order concept ratherthan rights-oriented order concept. Conflict and tension, to a certain extent, exist in therelationship between folk contract and national law. But it is reflected that the effect of thecontract is determined and recognized by the national law. The interaction and consistencybetween them is determined by the consistency the function of the contract and the state tomaintain social order.While we have a good knowledge of the civil law order type and the formationmechanism, we cannot ignore the influence of social structure on the contract relationship.Traditionally China is agricultural society and patriarchal society. The feature ofacquaintances society and relations society is the important foundation upon which informalmechanisms such as public opinion are playing a role to adjust social contract relationship.On the other hand, equality and freedom of contract relationship in the essence can’t beachieved for the reason that people living in the social class framework can not get rid of theinfluence of political power and political privilege, nor can they get rid of the economiccontrol of economic power group.