Carl Clausewitz - The Strategy of Warfare – Boxed Set

Debts contracted from each other by either a husband or wife, either a son or a father, or by any one among brothers of undivided interests shall be irrecoverable.

Cultivators or government servants shall not be caught hold of for debts while they are engaged in their duties (or at work).

A wife, though she has (not) heard of the debt (pratisrávaní), shall not be caught hold of for the debt contracted by her husband, excepting in the case of herdsmen and joint cultivators (gopálakárdhasítikebhyah). But a husband may be caught for the debt contracted by his wife. If it is admitted that a man fled the country without providing for the debt contracted by his wife, the highest amercement shall be meted out; if not admitted, witnesses shall be depended upon.

(Witnesses.)

It is obligatory to produce three witnesses who are reliable, honest and respected. At least two witnesses acceptable to the parties are necessary; never one witness in the case of debts.

Wife's brothers, copartners, prisoners (ábaddha), creditors, debtors, enemies, maintained persons, or persons once punished by the Government shall not be taken as witnesses. Likewise persons legally unfit to carry on transactions, the king, persons learned in the Vedas, persons depending for their maintenance on villages (grámabhritaka), lepers, persons suffering from bodily erruptions, outcast persons, persons of mean avocation, the blind, the deaf, the dumb, egotistic persons, females, or government servants shall not be taken as witnesses excepting in the case of transactions in one's own community. In dispute concerning assault, theft, or abduction, persons other than wife's brothers, enemies, and co-partners, can be witnesses. In secret dealings, a single woman or a single man who has stealthily heard or seen them can be a witness, with the exception of the king or an ascetic. On the side of prosecution masters against servants, priests or teachers against their disciples, and parents against their sons can be witnesses (nigrahanasákshyam kuryuh); Persons other than these may also be witnesses in criminal cases. If the above persons (masters and servants, etc.) sue each other (parasparábhiyoge), they shall be punished with the highest amercement. Creditors guilty of parokta shall pay a fine of 10 times the amount (dasabandha) but if incapable to pay so much, they shall at least pay five times the amount sued for (panchabandham); thus the section on witnesses is dealt with.

(Taking oaths.)

Witness shall be taken before Bráhmans, vessels of water and fire. A Bráhman witness shall be told ‘Tell the truth’; a Kshatriya or a Vaisya witness shall be told thus:--‘If thou utterest falsehood, thou, do not attain the fruit of thy sacrificial and charitable deeds; but having broken the array of thy enemies in war, thou, do go a beggar with a skull in thy hand.’

A Súdra witness thus:--‘Whatever thy merits are, in thy former birth or after thy death, shall they go to the king and whatever sins the king may have committed, shall they go to thee, if thou utterest falsehood; fines also shall be levied on thee, for facts as they have been heard or seen will certainly be subsequently revealed.’

If in the course of seven nights, witnesses are found to have unanimously made a false consert among themselves, a fine of 12 panas shall be levied. If they are thus found in the course of three fortnights, they shall pay the amount sued for (abhiyogam dadyuh).

If witnesses differ, judgment may be given in accordance with the statements of a majority of pure and respectable witnesses; or the mean of their statements may be followed; or the amount under dispute may be taken by the king. If witnesses give testimony for a less amount, the plaintiff shall pay a fine proportional to the increased amount; if they attest to a greater amount, the excess shall go to the king. In cases where the plaintiff proves himself stupid, or where bad hearing (on the part of witnesses at the time of the transaction) or bad writing is the cause of difficulty, or where the debtor is dead, the evidence of witnesses alone shall be depended on (sákshipratyayameva syát).

"Only," say the followers of Usanas, "in those cases where witnesses prove themselves to have been stupid or senseless and where the investigation of the place, time or nature of the transaction is of no avail, the three amercements shall be levied."

"False witnesses," say the followers of Manu, "shall be fined ten times the amount which, no matter whether it is true or false, they cause to be lost."

"If," say the followers of Brihaspati, "owing to their having been stupid, they render a case suspicious, they shall be tortured to death."

"No" says Kautilya:--It is the truth that witnesses have to hear (when they are called to attest to any transaction); if they have not minded it, they shall be fined 24 panas; if they have attested to a false case (without scrutinising), they shall be fined half of the above fine.

Parties shall themselves produce witnesses who are not far removed either by time or place; witnesses who are very far removed either by time or place; witnesses who are very far, or who will not, stir out, shall be made to present themselves by the order of the judges.

[Thus ends Chapter XI, “Recovery of debts” in Book III, “Concerning Law” of the Arthasástra of Kautilya. End of the sixty-eighth chapter from the beginning.]

Table of Contents

THE rules concerning debts shall also apply to deposits. Whenever forts or country parts are destroyed by enemies or wild tribes; whenever villages, merchants, or herds of cattle are subjected to the inroads of invaders; whenever the kingdom itself is destroyed; whenever extensive fires or floods bring about entire destruction of villages, or partly destroy immovable properties, movable properties having been rescued before; whenever the spread of fire or rush of floods is so sudden that even movable properties could not be removed; or whenever a ship laden with commodities is either sunk or plundered (by pirates); deposits lost in any of the above ways shall not be reclaimed. The depositary who has made use of the deposit for his own comfort shall not only pay a compensation (bhogavetanam) to be fixed after considering the circumstances of the place and time but also a fine of 12 panas. Not only shall any loss in the value of the deposit, due to its use, be made good, but a fine of 24 panas also be paid. Deposits damaged or lost in any way shall also be made good. When the depositary is either dead or involved in calamities, the deposit shall not be sued for. If the deposit is either mortgaged or sold or lost, the depositary shall not only restore four times its value, but pay a fine of five times the stipulated value (pancbabandho dandah). If the deposit is exchanged for a similar one (by the depositary), or lost in any other way, its value shall be paid.

(Pledges.)

The same rules shall hold good in the case of pledges whenever they are lost, used up, sold, mortgaged, or misappropriated.

A pledge, if productive, i.e. (a usufructory mortgage), shall never be lost to the debtor (nádhissopakárassídet), nor shall any interest on the debt be charged; but if unproductive (i.e., hypothecation), it may be lost, and interest on the debt shall accumulate. The pledgee who does not re-convey the pledge when the debtor is ready for it shall be fined 12 panas.

In the absence of the creditor or mediator (prayojahásannidhána), the amount of the debt may be kept in the custody of the elders of the village and the debtor may have the pledged property redeemed; or with its value fixed at the time and with no interest chargeable for the future, the pledge may be left where it is. When there is any rise in the value of the pledge or when it is apprehended that it may be depriciated or lost in the near future, the pledgee may, with permission from the judges (dharmasthas), or on the evidence furnished by the officer in charge of pledges (ádhipálapratyayo vá), sell the pledge either in the presence of the debtor or under the presidency of experts who can see whether such apprehension is justified.