TRADITIONAL CONTRACT LAW IN JAPAN AND CHINA
D.F.Henderson and P.M.Torbert
A. INTRODUCTION
1. Common tradition of China and Japan. - In traditional China and Japan written agreements were
used extensively in commercial transactions and in social relations. These were not mere oral
agreements that inevitably cemented even illiterate societies together and made social life possible.
Farmers and merchants in a variety of recurring transactions developed standardized forms to
reduce routine agreements to writing. Many of these agreements were formally witnessed by
relatives, signed by sureties, and sealed by local officials, who often retained copies for the group
records and for future reference in case of trouble. Much of this popular practice constituted a
means of social governance, beneath the level of official or legal concern (infra s. 7, 8).
We limit our treatment of traditional China and Japan to the Ch'ing (1644- I9II) and Tokugawa
(1603-1868) periods, respectively, I and focus on the fully developed practices toward the middle of
the 19th century. As the mature practices of the traditional regimes, these practices provided the
context for the 20th-century receptions of legal codes from EUROPE that created a new law of
contract. The diversity in transactions from place to place in both countries is such that we can deal
only with major themes and dominant practices. Both China and Japan have had long literate
traditions, and much which could be learned from voluminous primary sources (documented
agreements) is still unstudied and unknown. Likewise, aspects of commercial and official practice
are still controversial among the few pioneering scholars interested.
Japan has shared much of China's unique literate culture. Chinese ideographs, dating from many
centuries before Christ, were borrowed in the early centuries after Christ for use in the Japanese
system of writing. An extensive reception of the T'ang (619-906) codes (ritsury8) from China was
undertaken in the 700's by the Japanese imperial court, then situated at Nara. Next came neoConfucian ideas of family and governance; these too were adapted to Japanese social and political
life, along with wet rice culture and literature, art, and strands of other philosophies and religions.
Even during Japan's isolation in the Tokugawa period, Chinese influence was felt in the shogunate
and in daimyo domains.2 So, despite significant differences, the two traditions share a common
Chinese core, a core evident in their uses of agreements. This distinctive and time-tested cultural
core persisted and, in the late 19th and early 20th centuries, conditioned the reception of contract
law from the EUROPEAN codes. Contemporary observers assess the lingering effects of tradition
in various ways, but nearly all recognize the importance of tradition in understanding the present
day scene.
2. Problems of comparability. - How to relate the traditional social uses of agreements from a wholly
different era and culture to the WESTERN legal institution of contract is a question both difficult and
subtle. J Unthinking reification of our latter-day WESTERN legalisms and seeking their inchoate
forms in early China and Japan or using the terms of justiciable law to discuss Chinese or Japanese
administration of justice are bound to be more confusing than edifying.
If we are to understand clearly the functioning of traditional Chinese and Japanese agreements in
their own milieu, we must focus more directly on local formulations of the place and period. Once
the indigenous formulation is grasped, the difficulty remains of describing it without distortion with
English words colored by another conceptual world. Many major conceptual dichotomies, which
routinely (even subconsciously) structure our current legal analysis were not operative in the Ch'ing
or Tokugawa "legal" thinking (e.g.law/morals, law/administration; administrative/judicial; public
law/private law; right/duty; criminal/civil; and procedural/substantive). It is critically important to
understand why these classifications were not central to Chinese or Japanese political thought.
Clearing away our own conceptual impediments is a rather backhanded methodology for
addressing China and Japan, but is better than the past habit of not doing so.
In both China and Japan shallow government (authoritarian but not totalitarian) was not only a fact
but a preferred policy; some observers would add that this form of govern_ ment had its own merits.
Buttressed by orthodox neo-Confucianism, rulers maintained public order in exchange for popular
support through taxes. Unlike the ENGLISH royalty and the common law, these regimes did not
seek to expand their control to include popular transactions or private disputes. These were left to
morality and cnstom; families, clans, guilds, and villages were encouraged to mind their own affairs
socially below the level of central governance, all in accordance with strict Confucian moral duties,
well known in the entire populace. This "delegation" of much popular governance to intimate circles
whose members knew and cared about each other had merits, not the least of which were minimal
bureaucratic intervention and relative ease of fact-finding.
In the governance of these societies, there was only administration (as opposed to justiciable law);
the "individual" was not an object of that administration (or administrative "law"). Individuals did not
think in terms of imperial or shogunal "right", which is a WESTERN legalism; group leaders were
objects of central administration as heads of the family, village, or other groups. But these leaders
had no rights vis-a-vis their superiors; they had only duties to superiors and authority over their
groups. As an old Chinese proverb has it: The rulers have law, the folk have agreements.
"Contract" 4 is a WESTERN legalism, a creature of our justiciable, private law system dependent on
separation of courts (and judges) from administration. Modern justiciable law implies substantive
civil rules which confer rights enforceable in lawsuits brought by individual plaintiffs in courts that
are independent from the administration and are presided over by professional, neutral judges;
guided by law, they observe procedural requisites, screen evidence, find facts, and render legally
correct judgments. These judgments are subject to appeal and grant remedies (specific
performance, damages, or the like) that are enforced by the state (again on plaintiff's motion) if not
performed voluntarily. All this is largely alien to traditional China and Japan prior to 1900.
When Chinese officials heard a dispute over an agreement, they saw it largely in terms of
administrative concerns and criminal implications. The same was true of Tokugawa officials who
heard such disuptes only in case of diversity of jurisdiction or conflicts between local authorities
(infra s. 16). Otherwise, officialdom had no interest in intervening, and stood rather aloof. In
contemplating this comparative lack of most of the legal apparatus of justidable contract, we should
remind ourselves that, even here and now, lawyers usually take their justiciable law much more
seriously than do their contracting clients. The parties to an agreement are, prospectively at least,
performance-minded and interested in a sustained relationship. They are impatient with the implicit
negativism of clever clauses and the lawyer's emphasis on prospective victories in court.
Similarities in the Chinese and the Japanese traditions should not obscure the differences; there
were differences, important ones. So to give proper attention to these distinctive features, we
describe Chinese and Japanese legal cultures and institutions related to contract separately,
beginning with japan, which, by r843 may have, through its formulary system, come closer than
China to WESTERN contract. Salient comparative points are considered at the end of this
subchapter (infra s. 38-40).
B. CONTRACT PRACTICES IN TOKUGA W A JAPAN
i. The Fundamentals of the System of justice
3. The Tokugawa regime as a context for contract. - The peculiar features of the shogun's regime
shaped the administration of justice and the use of agreement in Tokugawa society. The regime,
based on a rice economy was a highly complex, isolated, feudal system under a symbolic imperial
court. The shogunate power rested upon four key policies: (r) monopolization of the prestige of the
Imperial Court in Kyoto; (2) control of the daimyo; 5 (3) prevention of internal intrigue; and (4)
isolation to minimize the threat of foreign influence.
Long before the leaders of the Tokugawa became the de facto rulers of Japan (r600- r868), the
dualism of an emperor formally reigning in Kyoto while a shogun, as the emperor's chief military
officer, actually ruled from Ed06 (or elsewhere), had become a pattern of Japanese government. In
Edo, there were two distinctive features of Tokugawa centralized feudalism not generally found in
mature EUROPEAN feudalism: (1) garrisoned vassals (retainers of the shogun and of the daimyo)
were all permanently withdrawn from the land and garrisoned in castletowns and thus were, like
bureaucrats, dependent on stipends payable in rice; (2) the thousands of villages (mura) 7 of the
countryside became the smallest units of enfeoffment to warriors in both the shogun's and the
daimyo's lands. This meant that the villagers, disarmed but alone on the land, were not feudally
organized within the village. They were allowed to govern themselves to a considerable degree so
long as taxes were paid, order maintained, and crimes suppressed.
Bearing in mind that the shogun's direct holdings (not allotted to tenants; demesne in ENGLISH
terms) was only about one seventh of the country and that the shogun, as well as the 260 daimyo,
left most matters of village governance to the villages themselves, where roughly 85 percent of the
populace resided, the shogunal system seems to us today extraordinarily decentralized. Central
administration was both spotty and shallow in its bite, though wholly adequate to maintain
Tokugawa power and dominance, since only the two-sworded warriors garrisoned in the castletown
had weapons.
A third major feature of the regime must be highlighted because of its eventual impact on the use of
agreements in commerce. The shogun controlled the major cities interspersed throughout the four
main islands.8 In addition, several of the daimyos' castletowns were significant outlying commercial
centers of about 100000 people 9 These urban centers of government, filled with garrisoned
retainers, soon began to nurture a thriving internal commerce conducted by two status-groups of
increasing importance: merchants and artisans. In all, about IS percent of the population was urban
(S percent warriors; 10 percent merchant/artisan). With the growth of a money economy, many
merchants had become wealthy by the 19th century from substantial dealings involving agreements
among themselves and with the warriors, who by this time had largely turned into governing
bureaucrats. 10
Orthodox neo-Confucian philosophy inspired shogunal regulations that shaped the whole
administrative system into a system of castes in descending order of Confucian merit: warrior,
farmer, artisan and merchant. Ironically, agreements could sometimes be made in the later period
whereby a merchant bought warrior privileges and status.
Likewise the autonomous villages used agreements extensively in intramural dealings, and indeed
in intramural governance. It is convenient, therefore, to distinguish between exchange contracts,
involving commercial transactions, and cooperative contracts, involving communal agreements. 11
We shall deal separately with villagers' agreements and merchants' town-agreements because of
differences in content, function, and modes of enforcement.
But first it is useful to characterize (in modern legal terms, inept though they be) the overall
administrative system as a context for these contractual practices; in doing so, we address: (I) the
village practice in the shogun's own domain (demesne), about one seventh of the rice lands; (2) the
shogun's practice in overseeing conflicts of daimyo jurisdiction in diversity cases; and (3)
commercial practices primarily as found in Edo and Osaka. In the largely commercial practice in
Edo and Osaka, the shogunate developed a formulary system for commercial petitions of special
interest to contract; this system is explored infra (s. 16-23). Internal administration of justice within
the daimyos' domains is not considered; the subject has been little studied as yet and practices
were, in any case, too numerous and diverse to deal with here.
4. Characterization of the legal system. - Decentralization of the administration of justice was not so
much a result of power balances between shogun and daimyo (or between local deputies, daikan,
12 and villages in the demesne), as a policy preference of the shogunate, which preferred not to be
burdened with affairs within the daimyo fief or between villagers intramurally. The position was,
implicitly, that these entities should and could manage their own affairs, once the overlord's taxes
(or services) were dispatched to him. In WESTERN terms, the jurisdiction ran with the daimyos'
lands. True to feudal conception, the law-of-the-Iand was the land law. However, the shogun did not
cherish the ambition, so pivotal in the common law growth of medieval ENGLAND, that the ruler's
writ run throughout the entire land. Shogunal law dealt only with feudal fief holders (and in the
demesne, only with headmen of the villages through the shogun's deputies). Though the
penetration of shogunal administrative fiat was shallow, it was entirely effective for maintenance of
power; for two and a half centuries the regime was comfortable with this balance between
government and society.
In view of this balance, individuals' private claims against each other were mere social concerns;
the government in effect had no private law, because individuals had no claim as a matter of right no power to bring a suit and control its prosecution before the shogunate. Indeed, the shogun had
no separate judiciary, only officials (bugyo) who handled administrative matters and police
functions; these same officials also handled private claims in the limited instances enumerated
above, but as a matter of grace, not right. When individuals' claims were heard they were handled
administratively, without appeal, and only if the petition fitted within a formulary system devised and
administered by clerks. These formulas blurred all substantive and procedural distinctions; the decision as to procedures also determined the remedy (infra s.21). Though a distinction between
officially-initiated proceedings (gimmimono, criminal) and plaintiff-initiated proceedings (deiri-mono,
civil) was recognized by the officials (bugyo), civil matters often lapsed into criminal treatment and
wound up with the imposition of penalties on the defendant and, indeed, upon the plaintiff, if he
were found to have misbehaved. Conversely, lesser crimes could be, and often were, resolved by
civil settlement.
Orthodox Tokugawa political philosophy was an adaptation of neo-Confucian thought. The
philosophy coalesced law and morals. The lord ruled as a wise and moral exemplar; subordinates
had no rights but superiors had moral duties to treat subordinates rightly. In such a system, law had
a role only in cases of culpable failure of morality: law was exclusively penal law to deal with moral
failures of duty, not to vindicate rights from below at the behest of the populace. Penal law was, of
course, always imposed from above; prosecuting witnesses were at most auxiliary. Law did not
mediate between equals, nor punish a wayward official except when invoked by his superior.
Confucianists did not believe with Lord Acton that "power corrupts, and absolute power corrupts
absolutely." 13 They believed rather with Plato that virtue and wisdom should and did rule, among
naturally unequal people.
Is then contract a viable topic in a village context bereft of justiciable law and without a judiciary or
bar to assist plaintiffs in enforcing rights under private law? Actually, village agreements and their
uses provide interesting analogues well worth reviewing because, from all we can determine in
retrospect, these agreements seem to have been socially quite effective without law. Town
agreements also had an importance in commercial life quite beyond legalities, but commercial
claims arising from town agreements were, by the mid-19th century, thrust upward for shogunal
treatment. Had the regime not collapsed perhaps an indigenous law of contract would have
emerged.
ii. Non-Justiciable Agreements in Village and Town
5. The village as a context for agreements.
Containing fully 85 percent of the nearly 30 mio. japanese, the rural, rice-producing village (mura)
was first a community.14 Villages were numerous and small, each with a few hundred people. Each
was comprised of families, their houses, fields, and irrigation systems. The village - usually the
smallest unit of enfeoffment 15 - was a peculiarly basic, self-contained and, to a considerable
extent, autonomous 16 unit of the society, of the economy, and of feudal administration. The
headman (nanushi) was invariably literate; he kept prescribed and remarkably detailed records and
registries of people, land, production, and taxes.17
Explicit policy and meticulous registries severely restricted, both free movement and social mobility
between farmer, merchant, and warrior statuses. Village ingress and egress were limited by
shogunal regulations - designed to keep taxpayers at the task of raising tax rice, by the village itself,
and by the scarcity of tillable land. These factors rendered the villages exclusive, stratified groups in
which typically (or ideally from the standpoint of overlords' policy) families, generation after
generation, lived out their lives working in the same place with the same neighbors and associates.
Such conditions led to a sociality and sociability inconceivable in more mobile circumstances. By
the same token, these conditions made intramural agreements serious social commitments, and
rendered fact-finding in case of breach a relatively simple matter among people who knew each
other and all of one's dealings.
6. Shogunal restrictions on village contracts. Later in the Edo period, the role ofland and rice
diminished somewhat due to increasing social and economic intercourse. The use of money and
cash cropping spawned village commerce and caused more tenant farming; the extended family, as
a unit of rice culture and source of labor, was disintegrating under pressure of growing market
forces and magnetism of urban centers. IS But the early dependence of the shogun on the rice tax
paid in kind and on rice as a measure of wealth and power had led to several shogunal policies that
even in the 19th century continued to influence the form and substance of village agreements. E.g.
the standard unit of enfeoffment (within the han) remained the village whose integrity was thus
preserved. Standard documents developed to embody these enfeoffments. Farmers were prohibited from migrating off the land and from selling it.I9 But land was in fact not infrequently sold,
usually under dire circumstances; standardized documents 20 developed to implement fictitious
loan/mortgage/default devices to enable owners to evade the prohibitions by alienating land through
foreclosures. Shogunal prohibitions on the sale of persons 21 and initial limitations on the lengths of
service for servants 22 shaped the terms of employment agreements.23 Farmers were officially
encouraged to be frugal, which surely to a degree restricted trade in luxury items. Though
discouraged from engaging in other activities, farmers in fact did escape to town, later in some
numbers, in response to wage opportunities and labor demands of the towns and cities.
Banishment was a major penalty and banished convicts became one source of contract labor in the
cities.
7. Village governance and autonomy. - The overlord's regulations, if precise and intensive in tax
and criminal matters at the village level, were not intended to reach the farmers' transactions among
themselves; the village was to care for its own and see that its members performed their duties to
each other in accordance with the village's own rules and customs. Not only was the village
competent, it was required by overlord law to regulate through its own headman and elders its
internal affairs and dealings between villagers.24 Much of this self-regulation was embodied in
agreements. The fundamental principle of autonomy (in the sense of the village's independence)
thus profoundly affected the uses and functions of agreements. In case of breach, the principle left
the obligee with only social enforcement by villagers. In the event of dispute, settlements were in
their turn embodied in similar agreements. Agreements of these sorts became a common means of
governance.
The system discouraged civil petitions to superior authority above the village level. This
discouragement flowed from the overlord, as well as from the villagers themselves. When a petition
to the shogunate for relief did occur, it seldom went beyond the first instance (deputy); as a result,
the deputy was the first, as well as final, "court" of appeal for villagers. Disputes reaching official
channels outside the villages were limited to three types: (1) village suing village, (2) a petitioner
from one village against a defendant in another village, or (3) intramural disputes that became
forceful disturbances uncontainable in the village and thus were thrust upon the deputies.
Sometimes disputing villagers had different overlords (the so-called diversity cases); such cases
went directly to Edo (or Osaka) on endorsement of the deputy or overlord.
This brief sketch helps one to understand the context and use of formal agreements in the villages,
containing 85 percent of the population. Of course, all rural villages were not the same. In the late
Edo period, each had its own customs 25 and some, especially in the vicinities of Osaka 26 and
Edo, had their own commercial activities of some scope, transcending village borders. Many
villages had special problems, internal and external, arising from their special history, location, size
and social composition?7
8. Village agreements as intramural governance. - Some Tokugawa village agreements were used
to document simple deals - sales, loans, and employment - between villagers. But others were
multiparty instruments for cooperation and governance or village management. Written and filed
with the village officials in standard form and phraseology, they were a formal type of social
communication - a way to integrate purposes, or organize efforts, to store information and to
achieve understanding. This kind of consensus had an efficacy attainable only because of the
peculiar nature and role of the village in the polity described above (supra s. 5).
As noted, the overlords generally denied the villagers access to the courts for enforcement of
private or civil law, except in egregious cases verified by the headman's seal; 28 in diversity cases,
verification by the overlord's agents was required as well. Such petitions as there were to higher
authority would have been first subjected to intramural or inter-mural conciliation efforts. Village
sanctions such as ostracism 29 might even be used against uncooperative parties, in an effort to
obtain agreements to settle. Or, reverse tactics might be used by threatening to bring a suit, in order
to bring an opponent in line. 30
Consensual governance in the village took several forms. Some agreements had a constitutional
importance. E.g. several agreements J1 are known that determine, in a constitutive sense, the
method of selection and the powers of
the headman. Others J2 redefine official duties and rights of the village members. Intervillage
agreements, related to commons or boundaries (or related taxes), can also be regarded as constitutive in a broad sense. JJ Only when consensual solution failed were village boundaries set by
superior authority. 34
Many legislative 35 functions were also carried out by this sort of documented consent, e.g.
regulation of transport 36 and use of commons. 37 Budgeting anti auditing problems were also
handled by agreements, 38 as were fiscal difficulties encountered by the village in financing tax
payments 39 or village expenses.40 Village agreements were also used to finance social welfare
and relief measures in a variety of circumstances 41 and sometimes even to refinance village
temples42
In the judicial sphere (conciliation and dispute settlement), agreements played an even more
important role in governance; settlements negotiated by village mediators and documented by
agreement (wabij8 and sumikuchi shaman) for future guidance resolved intramural conflicts to such
an extent that shogunal intervention was quite secondary.43 Even after shogunal intervention,
official conciliation and consensual settlements were the rule in "court" as well. 44 These in "court"
settlements were documented by formal agreements.45 Even the infrequent judgments (saikyiJ)
took the form of an agreement accepted, however reluctantly, and sealed by both parties and their
functionaries.46 Even criminal matters were compromised by agreements (presumably illegally) at
the village level and kept thus from becoming a dreadful public matter with the overlords47
9. Transactional agreements in the village. Alongside cooperative agreements and their role in
village governance, formal agreements were, of course, common in routine transactions between
villagers. As noted above (s. 8), they often followed standardized forms gradually imposed by the
shogun's formulary system for enforcing claims. Most basic were agricultural agreements
concerning water rights, 48 land mortgages (or sales),49 employment, 50 boundaries, 51 right-ofway, 52 use of commons,53 and land leases. 54 The most frequent forms of the later commercial
agreements were loan agreements with interest, either unsecured or secured by pledges,
mortgages or other collateraI.55 Other loan agreements (e.g. for disaster relief or from a temple)
bore no interest.56 Employment agreements were standardized and formal; they provided
guarantors for servants, who were often hired out on extended terms for wages paid in advance to
the servant's superior (or parent) in distress57
In family relations, formal agreements governed matters such as dowry, succession to the headship
of the house, retirement, adoptions (common to preserve a "house" from dying out) and marriage
arrangements between the I bride's and the bridegroom's houses. 58
It is important to remember that villagers seldom dealt with strangers, at least without mutually
known go-betweens as guarantors. Continual discussing, communicating, and reporting of
transactions within a well-acquainted, small, circumscribed, immobile group generally resulted in a
village consensus - a means of governance and a way of life. From working with village documents
and vicariously experiencing the underlying activities one has a sense of profound internal social
(as opposed to overriding legal) efficacy in the process. Village problems were such face-to-face
personal matters and their solutions so consensual that, when describing the process, one almost
instinctively puts the ENGLISH legal terms in quotes to alert newcomers to the obvious lack in
Tokugawa times of justiciable law, which modern WESTERN lawyers live and breathe.
10. Draftsmanship. - To induce performance and avoid disputes arising out of village agreements,
much ingenuity was shown in drafting and documentation; a special effort was made by creditors to
create devices for self-help 59 or to provide for substitute performance in case the debtor defaulted
for inability to pay. The essential facts of transactions were acknowledged, attested and recorded to
avoid inconsistent assertions later. Proof problems were not only reduced by the documented
agreement itself but also by the fact that the parties, their go-betweens, witnesses, sureties, and
officials all knew each other and most of each other's property and dealings. If the debtor later could
not payor perform, then there were usually third parties indisputably obligated as guarantors, and
they too were constrained by the same communal pressures to perform, if possible.6O Indeed, the
outstanding feature of legal draftsmanship, clear from these Tokugawa village documents
themselves, is the skill with which such devices were employed, perhaps because external legal
remedies were thought to be undesirable, or were unavailing.
11. Social enforcement in the village. - Almost all contract enforcement thus occurred in the village,
and it was not legal enforcement in lawyers' usage. Enforcement was rather through psychological
and communal pressure, and by conciliation of the sort that, in the past at least, anthropologists
have dealt with more comfortably than lawyers.61
Amicable settlement by conciliation would depend on finding what, short of full performance, would
be acceptable to the creditor and within the future capabilities of the embarrassed debtor. If the
debtor were dishonest, tricky or mean, the village might punish him by a kind of customary
ostracism or the like.62 Village sanctions were very serious for the immobile villager in the confines
of his little community.6] The sanction lent a solemnity to promises, which contract can scarcely
match in a society of mobile individuals dealing often with relative strangers with full rights to move
away from the problem, or to commit a breach and wait to be ordered by a judge to pay damages.
But the parties were not left to their sole devices; within the village, the households and five-mangroups (neighbor organizations) through their spokesmen as well as the village officials (sanyaku)
became involved before a dispute burst the bounds of the village. Indeed overlord policy throughout
japan encouraged the village through its elders and headman to settle disputes. Most disputes were
settled by negotiation and conciliation (atsukai) and then documented by agreements.64
Only rarely was internal conflict irresolvable by the village and its mediators. Such cases had
administrative and criminal import, so petitions from villagers went to the local deputy, 65 duly
verified by the headman. Deputies were under the authority of the Finance Commission in Edo, but
again claims did not go beyond the deputy, unless there was a disturbance, 66 or a dispute in which
the parties were villages not located in the same deputy's territory.67
iii. Non-justiciable Agreements in Tokugawa Guilds
12. The context of town agreements. - Another Tokugawa setting for formal agreements was
urban.68 Throughout the Tokugawa period towns and cities were constantly growing centers of
commercial activity. Most of the major towns were castletowns (jokamachi), which served as seats
of feudal government of the shogun 69 or major daimyo 70 During two and a half centuries of
peace, these towns, originally military and governmental centers, gradually spawned their own
commerce; soon they contained about 15 percent of the population, mostly retained warriors
(samurai) and merchants (sh8nin). The samurai were the ruling class with elite status. The
merchants, though low in status, became wealthy and powerful by providing for samurai needs as
well as their own7I
13. Nature of town agreements. - Many kinds of sophisticated transactions grew out of this
commerce; these were often quite different in device and substance from older village agreements
dealing with land, rice, irrigation, water, boundaries and the likeJ2 Especially in Edo and Osaka, the
transactions embodied in town agreements were often large scale and could be concerned with
every aspect of money, commerce, transport, employment, service, or construction. Usually the
parties were both merchants, but many transactions were inter-status with e.g. merchants dealing
with warriors.73
Many nominal farmers 74 became involved in urban commerce as it spread to the countryside,
especially around the major hubs of Edo and Osaka. Merchants' activities provided the impetus for
the numerous money suits (kanekuji, infra s. 17) which were developed for enforcement of business
claims. These commercial dealings and the relevant jurisdictional rules were so intricate that official
enforcement actions were required for these transactions more frequently than for village
agreements grounded in communal agriculture. Often parties to money agreements had little social
contact with each other: enforcement support of a higher authority provided a surrogate for
communal sanctions. Hence money suits became very numerous and clogged the shogun's offices.
14. Merchant organizations (guilds). - By the 19th century, merchants had organized each trade rice, wine, timber, and the like - into guilds (kabunakama). In both Osaka and Edo the trading
practices of these guilds were highly developed.75 Guilds were important in the informal
enforcement of agreements because they regulated each trade with autonomous rules and (like the
rural village) could exclude members. The guilds were also licensed monopolies and could confine
dealings in their trade to members. Thus, petitions to the shogunate by one member merchant
against another were normally quite unnecessary; a complaint to the guild was sufficient to obtain
satisfaction from a wayward fellow member. Credit agreements were accordingly often either oral or
notes recorded in the seller's daily journals and sealed by the creditor.
15. Enforcement of agreements by guilds. Agreements, especially between merchants, were
enforced by intra-guild discipline of great efficacy. Each guild specialized in a given product or
products and operated as a monopoly with licensing authority. All dealers in a product were
required to join the appropriate guild and conform to its rules. A clap of the hands consummated a
deal, and to renege on an obligation was commercial suicide. The guilds became numerous and
were much regulated by the shogunate.
The commercial disputes that reached the shogunal offices 76 generally did not, therefore, arise
from inter-merchant dealings but rather from dealings between commercialized farmers and
merchants, between merchants (lenders) and warriors (borrowers) or between parties from different
villages or different wards within the cities. As noted above (supra s. 2) the latter suits (between
parties from different jurisdictions) were diversity suits (shihai chigai), so called because the parties,
being under the jurisdiction of different offices, could not rely on the usual intramural, intra-guild, or
intra-fief processes to resolve their disputes. From the early 18th century, these disputes in
increasing numbers were brought as money suits (kanekuji) to the shogunal offices in Edo and
Osaka. They furnished the impetus for growth of such contract law as the Tokugawa shogunate had
before the code reception at the end of the 19th century.
iv. Agreements Enforceable in the Shogunate
16. Shogunaljurisdiction in village cases. - The three features of the immensely complex system of
Tokugawa administrative jurisdiction (shihai) 77 described above (s. 3) give us an inkling of contract
enforcement from the bottom up as it would have appeared to the Tokugawa villager or townsman.
For, of course, a contract right implies the possibility of enforcement on the motion of the obligee.
First, the shogunate, interested primarily in public power relations, preferred not to assume the
function of adjudicating contract disputes among the folk, whether villagers or townsmen. Even in
the limited areas in which the shogunate was required to settle such disputes diversity cases and
demesne cases that had escalated into disturbances of the peace -, adjudication was seen as a
dispensation of grace, rather than as a doing of right between the parties. Indeed, officials
characteristically acted primarily as mediators in the early stages of proceedings and accordingly
normally produced a compromised result. This deliberate decentralization of the shogunate's justice
contrasts sharply, as already noted, with the expansion of the King'sjustice and common law in
ENGLAND.
Second, jurisdiction ran with the land in Tokugawa feudalism. Exclusive judicial authority to decide
all civil disputes arising between parties within a single overlord's fief, of which there were hundreds
in a land the size of California, was rigorously delegated to the fief holder himself (i.e. the daimyo,
the hatamoto, etc.) with no right of appeal. In sum, the shogun eschewed disputes within the fiefs,
as well as intramural disputes within his demesne.
Third, even within the shogun's demesne (in a sense the largest fief, i.e. one seventh of Japan) , the
deputy's office in the countryside - but not the Edo Commissions or Conference Chamber - was the
court of first and last resort; no appeal from a deputy's decision was provided in civil disputes
among villagers. The same deputy system seems to have prevailed within most larger daimyo
domains as well, but little is known concretely about proceedings in either shogunal or daimyo
deputy offices.7g All we know is that little evidence of appeals of civil cases has been found.
The villagers' court of first and last resort was the deputy's office, so that claims were kept away
from Edo. There are two qualifications: (1) in case of a deputy's malfeasance, petitions to Edo were
authorized and a Plaint Box 79 was installed in Edo to receive them; (2) illegal appeals (0550) were
thrust upon higher officials in Edo frequently enough to evoke official proclamations inveighing
against them. Heavy penalties were prescribed for illegal appeals, but often not imposed.8o
In the later years of the Tokugawa period, villagers increasingly had dealings and disputes with
parties from villages in a different deputy's or a different overlord's territory. These disputes, arising
all over Japan, were settled by the shogunate in accordance with fixed rules, mostly in Edo, but also
in the Osaka and Kyoto Commissions.81
The Edo Conference Chamber (hy6josho),82 comprised of the members (bugy6) 8J of the three
commissions (Town Commission, Finance Commission, and Temple and Shrine Commission), was
the highest organ in the administration of justice, and was authorized to handle straddling diversity
cases where no single overlord had power over all the villagers and townsmen involved. In the
handling of these cases we find much refinement of procedural rules and the nearest equivalent to
adjudication in contract enforcement.
Added to the diversity suits originating in villages in the countryside or in towns was a large volume
of Edo claims, brought by merchants, that were handled by the Town Commission. Similar
commercial claims in large number went to other town commissions, notably the Osaka
Commission, which, not surprisingly, had somewhat different enforcement measures which were
more helpful to creditors.84 In many ways, these Osaka commercial suits represented the highest
refinement in traditional Japanese contract. Later Edo practices drew upon Osaka models in an
effort by the shogunate to stabilize credit and encourage the circulation of money in order to
maintain trade.85
17. Hierarchy of documented claim categories. What were the main requirements that had to be
met to obtain enforcement in money suits? Emphasis must first be placed on the requirement of a
formal writing documenting the claims.86 The Edo offices peremptorily sidestepped the difficulties
of deciding oral claims, with their characteristically conflicting testimony, even though there was no
exclusion of oral defenses once a properly documented claim was presented. Confrontation of the
parties was required so that each side's story would be heard, whenever preliminary settlement
talks proved unsuccessful. 87
When a claim was properly documented, the shogunate used an intricate formulary system to
determine the methods of handling the claim and the remedies to be accorded. In a hierarchy of
broad categories claims were ranked in descending importance according to the weight shogunal
policy placed on their official protection:
(I) Land and water suits (ronsho); 88 (2) main suits (honkuji); (3) money suits (kanekuji); (4) mutual
affairs (nakamagoto). 89
None of these categories reflects a contract! tort distinction. Intentionally inflicted harm and
negligent harm were both recognizable by the penal law.
Land suits (ronsho) were given preferential handling and employed the most effective remedies
because of their feudal significance relating to tenure and rice taxes. But land suits are not central
to contract. Most contract claims justiciable in Tokugawa times fell into either the category of main
suits or of money suits; the distinction between the two categories is significant.
18. Remedial distinctions between main and money suits. - The chief differences in remedies
accorded to main suits as opposed to money suits were as follows:
(1) The most important difference was that judgments in money suits ordered payment by limited
money (kirigane) installments over an extended period after judgment; in main suits, stricter lumpsum payment of a judgment was ordered on a day certain, and execution (shindaikagiri) followed on
default.
(2) In a money suit the Commission's initial endorsement (accepting a petition) instructed the
parties first to conciliate among themselves out of court, rather than going immediately to trial to
validate the right to recover. Endorsements for a main suit ordinarily did not order out-of-court
conciliation, 90 though the clerks in the Commission mediated constantly when the parties were
before them. Since endorsement accepted a petition for processing, it was essential to determine at
the time of acceptance whether a main suit or a money suit was involved as preliminary out-of-court
conciliation had to be ordered for main suits.
(3) Compromise and withdrawal of a pending suit could be done upon the petitioner's request and
under his seal in a money suit; both parties had to seal a main suit settlement.
(4) The occasionally issued private settlement decrees (aitai sumashi-rei), which declared a
moratorium on official enforcement, were available only for money claims.
(5) Dates at court for handling the two categories were different.
Three characteristics of money suits made them less effective than main suits: the pressure to
settle before trial, the dilatory payment schedule even after winning a judgment, and the occasional
moratoriums during which the courts were ordered not to accept and enforce any money claims
incurred prior to a certain date. The terms of moratoriums differed; moratoriums were decreed in
1661, 1682, 1685, 1702, 1719, 1746, 1789 and 1842.91 A moratorium must have had a devastating
effect on the creditors thus denied relief, as well as a serious impact on credit and commercial
activity generally thereafter.
19. Contents of main suits or money suits. - For contract law, we need to know both the substantive
rules used to separate the category of contract claims called main suits from the category called
money suits,92 and the two lists of standardized transactions that in official practice were classified,
one list as main suits and the other as money suits. Essentially, claims were handled as money
suits if they included, besides principal, a claim for interest. But it was not quite that simple,
because certain unsecured claims were money claims, even when no interest was charged. In fact,
some authority suggests that historically the lack of security may have been the most essential
element of a money suit.93 Secured claims (without interest) were, however, always main suits.
Taken as a whole, this complex of Tokugawa rules and remedies for enforcement of documented
agreements was a sort of formulary system which had reached a mature form by the 18th century.
Interestingly, enforcement of executory promises at COMMON LAW (as opposed to CANON LAW
or MANORIAL LAW) was not routine until nearly the 17th century. As Sir Henry Maine put it, ". . .
substantive law has at first the look of being gradually secreted in the interstices of procedure." 94 It
is hard to imagine a better example than Tokugawa contracts of the conceptual inadequacies of the
procedural/substantive classification in attempting to analyze early legal growth. Are these largely
administrative rules separating main from money suits substantive or procedural? Do they tell us
what contracts are enforceable, or do they, instead, tell us how claims are enforced?
20. Specific transactions classified as main or money suits. - By setting up two contract categories
and providing much weaker remedies for one of them (money suits), the shogunate could
legislatively favor certain interests over others by simply placing them into the category of main
suits. The distinction between main and money suits seems to have begun with the Mutual
Settlement Decree of 1702; a clear division emerged between 1706- 1719. However, the distinction
is not specifically discussed in the leading Tokugawa compilation of regulations, the Kujikata
Osadamegaki (1742); it reached its mature form only in 1767 when lists of main suits and money
suits were embodied in a Conference Chamber resolution.95
By 1767 there were 23 forms of main suits; i.e. specific claims flowed from 23 stereotyped, strictly
defined transactions (such as land pledges, land owner's share of a crop, wage money, and the
like). There were 30 forms of money suits all based on money past due. Each form involved a
defined claim that arose out of a stereotyped transaction. Claims were entitled to hearings by
procedures differing in adequacy of protection (the remedies), depending on the category in which
the claim was placed.
Additions to, and some shifting between, the two lists of claims occurred as late as 1843, perhaps
even later, but we need not trace those details here. The significant point is that in the precise
definitions distinguishing these 50-odd classes of claims, as well as in the bright line between the
categories of main and money suits, lay much of the substantive refinements of Tokugawa contract
law. The precision of definition came, in part, from the need to classify the transaction involved in a
petition in order to take the first step in handling it, namely, placing the endorsement on the back
(uragaki), which would require conciliation, if it were a money suit, but would not require conciliation
if it were a main suit. Endorsement was in a sense jurisdictional, and conciliation was administrative; neither qualifies as modern adjudication. The required elements of some of the 50-odd suits
are difficult to ascertain in the primary materials that remain today. It will be a great advance when
actual documented agreements are found, classified and published corresponding to the full spread
of the main, and money suits.96
21. Preliminary examination and endorsement:- .A preliminary proceeding - the examination of-the-
petition (meyasu-tadashi) - determined whether the petition and the required documented
agreement (shamon) were sufficient to support a right to sue (soken), and, where appropriate,
classified the suit to determine the grade of procedures to be followed. Although the judge (bugya)
was primarily an administrator, the examination was done by clerks (tomeyaku) ex parte before the
petition was accepted. The clerks checked such formal aspects as the name, identity and residence
of the plaintiff and defendant, the classification of the cause of action in the formulary system
(kujimei), and approvals of local officials. Errors of form in the petition could ordinarily be corrected
by the petitioner without serious loss.
The crux of the examination was the scrutiny of the contract document itself because enforceability
depended, as noted (supra s. I8), on a properly drafted, sealed and witnessed document. The
petition would not be accepted at all, nor the defendant summoned, without this ex parte
determination that the document was proper and embodied one of the listed claims in the formulary
system; moreover, only after the document of agreement was examined could the clerks decide
whether it presented a main suit or money suit and make the endorsement that would determine its
treatment procedurally during trial. Much ingenuity was, understandably, displayed in drafting
documents and petitions of the period in efforts to make money claims look like main claims in order
to get better remedies.
22. Moratoriums on filing of money suits. _ As noted, many otherwise valid documents embodying
money claims were periodically denied enforcement (toriagenai) by the shogun's Mutual Settlement
Decree_. In such cases, the parties were encouraged to work out a private settlement instead of
suing. Since these decrees only applied to certain money suits, the examination-of-the-petition
(supra s. 2I) had the additional function of screening out claims subject to the periodic moratoriums.
The same may be said of so-called mutual affairs (nakamagoto), which were excluded in the
Kujikata Osadamegaki (1742) from the list of justiciable contracts, even though they were indeed
claims for payment promised.
The examination-of-the-petition is stressed because it explains much of the concern for proper
documentation of contracts and the careful attention given in the late Tokugawa period to standard
forms found in copy books for drafting certain types of agreements so they could be enforced.
There simply was no con tract in a justiciable sense unless it fitted the formulary and was embodied
in a document, correctly drafted, sealed and preserved. Some consider the contract document only
a condition to the right to sue, not a condition to the substantive right; others have viewed the document as essential to the creation of both the right and the remedy.97 The same distinction is made
between the right and the remedy in the case of money suits barred from the courts by the Mutual
Settlement Decree; the underlying claim was said to be still valid, though unenforceable.
Although lawyers sometimes say, there is no "right without a remedy", the distinction had some
legal meaning because the shogunate ordered would-be plaintiffs and defendants to settle privately
claims declared unacceptable in court. Indeed, criminal penalties were imposed on defendants who
intentionally delayed settling.98 So, presumably, if the claims were settled and the settlement paid
to the creditor, the payments would be regarded as a discharge of
an obligation. The debtor could not claim a return of the payment based on an argument in the
nature of "unjust enrichment" because, even if not actionable, the underlying promise was deemed
valid in substance.
23. Basic ambivalence of shogunate toward contract. - The policies that underlie these measures
are not entirely clear.99 Most basic, it seems, was the fact that shogunate administration of justice,
which began as a minimal assertion of authority to protect its new power structure, saw its chief
legal concerns in criminal law and taxation to sustain the new regime. Given the thin distribution of
Tokugawa personnel throughout the whole of Japan, it would have been sheer unenforceable
pretension for the shogun to presume to replace, in daily dealings, the village customs with rules
issued from, and enforced in, the Edo administrative offices, except in selected instances. As noted
(supra s. 4), the shogunate seems to have had little interest in expanding coverage into what we
would call private law.
If this is a fair statement of the situation, then the shogunate's expectation that the villages and
guilds would follow their own customs and handle their own civil disputes, so long as taxes were
paid, may be understood as more of a necessity than a policy. But actually, the shogunate seemed
to have preferred its limited scope and to have rationalized the policy of minimal governance in
terms of neo-Confucian virtue. Private promises had a moral quality based not only on mutual
voluntary acts (aitai) but on interpersonal trust (jitsui); accordingly, problems of nonperformance
should be handled on the same moral basis without involving the officials.100 From this position
flowed also the specific principle that the shogun's offices took cognizance of contract suits strictly
as an avocation (yogi), and as a matter of grace, 101 not because the parties had a right to a "dayincourt". This attitude is expressed in the plaintiffs' honorific phraseology in the Edo pleadings
(osorenagara, etc.).
But views respecting the motivations of Edo contract policy differ sharply. Ishii Ryosuke has made a
persuasive case that simple shogunal hostility to money claims (seen by some scholars as flowing
from "feudal" impulse to penalize merchants and favor warriors) is not the whole answer, 102
especially in the reforms of 1843 and later. Warrior concerns did, however, influence the 1843
reforms; warriors were not required to pay judgments against themselves in a lump sum, but were
permitted to continue the prior practice of paying money judgments in installments.
While the neo-Confucian shogunate did find some money dealings morally inappropriate for
warriors (e.g., mujinkin), the same transactions were recognized as not improper (not criminally
prohibited) for commoners - merchants and farmers. These claims were valid and should be settled,
but privately. Indeed, if the debtor intentionally repudiated his obligation when he could pay, relying
on the plaintiff's inability to sue, the shogunate prescribed criminal penalties, 10] even though it
would not accept the suit for civil enforcement because a Mutual Settlement Decree was in force.
If this was the general philosophy, then the policies of rejecting money claims on occasion (and
generally refusing to accept mutual affairs) may be explained simply as measures to improve the
administration of other types of claims. The flood of money suits was rejected at the shogunate
level so that agriculturally based claims (main suits) could be more effectively handled. The decrees
were thus used to solve the problem of congestion. Some interesting statistics tend to support the
view that avoiding congestion was a main motive. In 1782, e.g. there were 4263 suits (kuji) in the
two Osaka town commissioners offices, and in Edo the town commissioners handled, in 1718, a
total of 33037 suitS.'O4 Such a large number of adversary claims in the Edo commissions suggest
the view that the decrees rejecting money claims were issued, at least in part, to address an unmanageable backlog of filings. The argument is plausible, therefore, that the shogunate did not
intend to use its power affirmatively in derogation of commercial interests; indeed, the 1843 reform
sought to shore up credit and commercial confidence. 101
This theory does not explain the choice of money claims alone for wholesale rejection. In all
probability, the answer here is that money claims were increasing and had become so numerous
that statistically the other claims were insignificant. At the same time, there is much to support the
view that main suits were favored, in part, because neo-Confucian social theory viewed money suits
as based on trust, not law.
This view deserves serious consideration, at least as a partial explanation of these important, if still
somewhat obscure, legislative measures affecting contracts running throughout the latter half of the
Edo period. Some weight is added to the position by the drastic and then abortive reforms in 1842
and 1843. These sought to secure credit and stabilize commerce to encourage circulation of
money. Besides abolishing the guilds, judgments in money suits were freed from the old dilatory
and toothless installment payments (kirigane) schedules. Instead, future judgments were to order
lump-sum payments on a day certain; the larger the payment the more time given to the due date.
But the guilds were soon partially reinstated, and the r_form measures from the outset excluded
claims against warriors. Thus, this last great reform before the shogunate collapsed proved quite
feckless, especially the action against the guilds. The reform was a recognition of the importance of
commerce, of credit in commerce, and indeed of contract and judicial enforcement. 106 But, it took
good care as well of the warriors. On balance, the view that the shogunate's contract enforcement
policy was motivated entirely by hostility to merchants has proven too simplistic and historians are
now advancing more complex and nuanced theories.
C. CONTRACT PRACTICES IN CH'ING CHINA
24. The nature of the Ch'ing state and society determined the role of contract during this period.
The political and social structure of China was a legacy of the longest continuous civilization in
history. True to Chinese tradition, Ch'ing China was not a nation, but an empire.1O7 The extent of
its territory rivaled that of Europe and included large areas inhabited by alien peoples. The
population of China, already large at the beginning of the period, grew enormously and made it the
most populous country in the world. 108 But China's traditions and grandeur masked its many
failings.
Most significant was the shallowness of state control. For economic and political reasons, the
Chinese state, although differing significantly from the Tokugawa feudal regime in japan, reached
the same institutional result: not to impose order on the local community from the outside, but leave
the community to do so through its own means. The system, then, was bureaucratic, centralized,
authoritarian, but superficial and not totalitarian. The vast majority of the people, probably more
than 80 percent of the population, lived in villages (ts'un or hsiang) of 100 families or fewer that
established order in various ways.109 In contrast to japan, villages in China were not the smallest
unit of government. The state bureaucracy reached down only to the district (hsien), which could
include dozens or hundreds of villages. Nor were villages in China the closed enclaves they were in
japan. IIO Chinese peasants were not legally bound to the land or to their ancestral villages,
although economics and family ties often kept them there. Land, except for the banner lands and
imperial estates (which comprised a relatively small portion of the total land), was freely alienable.
111
The cities, as opposed to the villages, were the commercial and bureaucratic centers. State power
extended down from Peking, the political capital, to the municipalities. In fact, the Chinese cities
were always strongholds of the state rather than independent entities. 112 Nevertheless, the state
was generally unwilling to manage directly commercial activities and allowed the merchants to
govern themselves albeit under the watchful eye of the bureaucracy. The merchants were not an
independent interest group that challenged the state. Rather, they saw the state as the major
source of benefits and were more eager to be co-opted by it than to oppose it. II3 The same
attitudes prevailed among those merchants who became large scale manufacturers of silk, tea,
cotton, copper and other products.
In its contract practice, Ch'ing China presents a puzzle. On the one hand, it was the most populous
country in the world; it had the largest urban centers; it enjoyed a higher level of commerce,
industry and technology in many respects than the West through the 18th century.114 The size and
vigor of its economy necessarily called for complex forms of commercial agreements. On the other
hand, these agreements, as in the Japanese practice, were probably not what would be called
enforceable contracts in a modern court. They were agreements often enforceable not by resort to
the state but through other means. Further, no formal law of contract ever developed in what was
perhaps the world's most commercially developed society until the 19th century. ITS These
agreements pose engaging questions for students of comparative contract law.
China's geographical size, the diversity of its population, the vitality of its internal trade, and the lack
of research by historians and legal scholars in contract practices in Ch'ing China make it difficult to
formulate representative conclusions. IT6 Still, we can discern the broad outlines of the contract
practices, if not contract law, particularly for the vast majority living in the rural sector. For the most
part, the description that follows applies in broad terms to all of China, although regional variations
are to a certain extent inevitable. One major regional difference is the role in contract practice of the
clan (or, more precisely, lineage, tsu).117 While the family was the basic and most important unit of
society, the lineage played an important role in dispute resolution and other contract practices. The
role of the lineage, however, was limited largely to southern China. Lineages were not generally
strong in northern China. 118
i. Agreements in Rural Areas
25. Local society as a context for agreements. The delegation - or more properly, the abdication _
of authority to the village level or below promoted the development of institutions to carry out the
role of government at the local level. Among the activities taken over by these nongovernmental
authorities were maintenance of the peace, the enforcement of contracts and the handling of
contractual disputes.119 These institutions were many, but we can classify them into the following:
(1) the lineage; (2) the gentry (shen-shih); (3) the village elders (ch'ilao); (4) the village constable (tipao); (5) the pao-chia system; and (6) the middleman (chungjen).
(1) The Lineage. - In contrast to japan, the lineage (a group of people descended from a common
ancestor) played an extremely important role in the local society of southern China. Encompassing
at times thousands of people, it acted as a government for its members, establishing in many cases
rules for the conduct of affairs (including prohibitions on certain types of transactions) and meting
out justice in cases under its jurisdiction (mainly family-related matters).120 In some cases the
lineage established contract forms and practices for the most common transactions, such as sales
of land.121 If members of the lineage encountered disputes concerning agreements they executed
with third parties, the lineage elders from both sides were often the forum for resolving them. For
transactions among lineage members, such as household property divisions and sales of real
estate disguised as intra-family gifts or other types of transactions, the lineage elders served
normally as the forum of first and last resort. The law recognized the authority of the elders,
allowing them to impose punishments, including corporal punishment, upon members of the
lineage. 122 The jurisdiction of the lineage elders, however, was in most cases nonexclusive.
Parties to a contract could also look to the other mediation and enforcement institutions noted
below for assistance in the case of dispute.
(2) The Gentry. _ The local elite of Ch'ing China were the gentry, a group of degree-holders who
exercised both political and economic functions in the local rural community. 12J They provided
leadership and financial support for government-sponsored public welfare activities, such as public
works, educational institutions, and neo-Confucian rituals. They also owned substantial land
holdings and represented the interests of landlords at the village level. Their economic interests
reinforced the authority given them by the government and neoConfucian ideology, but made them
less than neutral and just arbiters of contractual disputes. The younger and less affluent among the
gentry served as scribes or "litigation tricksters", assisting peasants or others in drafting agreements
or petitions to the local magistrate to resolve contract disputes.124
(3) The village elders were a broader group, but often overlapped with the lineage elders and the
gentry. They were the more senior and respected persons in a village whose advice was sought on
matters of importance to the villagers.125 They did not necessarily have to be leaders of their
lineages, to be literati or to be landlords, although they probably often were. Rather, their authority
stemmed from the villagers' respect of them. The district magistrate reinforced this authority by
often referring cases brought directly to him back to the village elders for resolution by them.126
The village elders were probably a more common agency of contractual enforcement and dispute
resolution in North China where lineage ties were weaker.
(4) The village constable was the nexus between the district magistrate's office and the
village.127 Appointed by the district magistrate, the constable did not receive a salary, although he
was responsible to the magistrate and therefore represented the interests of the state. But the
constable, as a local resident, also represented the interests of the village vis-a-vis the district
magistrate. The duties of the constable included local peacekeeping and assisting the magistrate in
tax collection, arresting criminal suspects and investigating suspicious deaths. He was more active
in criminal, than contractual matters and was not generally involved in settling disputes, but could
participate as part of his peacekeeping duties in these activities. 128
(5) The pao-chia system was a collective responsibility organization which in theory encompassed
the entire countryside.129 It was a hierarchical structure in the form of a pyramid, starting at the
bottom with many units of ten families and rising through decimal units to one unit at the top that
included a thousand families. At each level leaders were appointed to oversee the fulfillment by the
units of their duties. The system placed on families the obligation to detect and report suspicious
persons or behavior and imposed collective responsibility for any failure in fulfilling it. Administration
of the system required the establishment of a registration system that recorded the names of all
persons in a household, the destinations of those leaving the household and the origin of those
persons joining it. The system, then, served as a means of keeping the state informed of
movements of people and assisting it in keeping the peace. Unlike the system of local control in
Japan, however, it did not prevent the movement of peasants from the village. Nor could it, for the
organization was more rhetoric than reality.130 It was never fully implemented and seems to have
had only sporadic success in achieving its goals of preventing disorder through surveillance and
early detection of suspicious persons. The imposition on the pao-chia of additional responsibilities
for tax collection during the 19th century hastened its decline and eventual demise.
(6) The middleman was an indispensable element of almost any contract in Ch'ing China. This was
not a requirement of the nationwide written legal code of the time, the Ch'ing Code (infra s. 33).
Rather, the use of the middleman was an unwritten rule of contract practice. Agreements regarding
real estate, the sale of products, employment, betrothal, partnerships and many others almost
uniformly bore the signature of the middleman.131
The function of the middleman was in the first instance to increase the potential market for the
goods and services.']2 He did this by enabling a party to reach a larger pool of potential contract
partners than it would have been able to by itself. Other roles played by the middleman were those
of witness, enforcer and guarantor bf the agreement. It was convenient to have the middleman, who
brought the parties together, also act in these other roles as well, but the middleman did not always
fulfill these other functions. In many cases other persons were specifically identified in the agreements as "witnesses" or "guarantors".
These other functions of the middleman were the key to his role in dispute resolution. If a dispute
concerning the interpretation of the agreement occurred, the parties' first resort was to the
middleman. 133 He would have knowledge of the background to the agreement and the
understanding of the parties at the time of its signing. No conflict of interest was perceived in this
situation. The middleman was not thought of as the representative of only one of the parties, but as
the representative of both. 134 For these reasons, he was the most appropriate person for the
parties to turn to for a resolution of contractual disputes. A party that disagreed with the
middleman's opinion would have difficulty finding other for a to which to appeal unless he could
show that the middleman's opinion was the result of factors extraneous to the dispute.
The middleman was an important, but not sufficient, element in resolving contractual disputes and
assisting in the enforcement of agreements in Ch'ing China. In some cases, the middleman had
passed away by the time a dispute arose or other persons acted as witnesses or guarantors. The
middleman, although not present in every instance, was one of a number of mechanisms available
to a party in Ch'ing China to strengthen the force of the obligations imposed on the other party by
virtue of a written agreement.
26. Types of agreements. - The agreements employed in rural Ch'ing China were of two types:
those of exchange and those of cooperation. Exchange contracts were those that involved two main
parties as well as a middleman, witnesses or guarantors and related to sales, loans, adoption,
pawn, guarantee and other transactions. They concerned the exchange of resources, often money,
and included the archetypal isolated commercial transaction as well as family-related transactions.
Cooperative agreements had multiple parties and were used to coordinate their efforts for a
common purpose over a relatively long period of time. The matters governed by these agreements
included purely private matters, such as partnerships, cooperative irrigation associations, family
property divisions and small rotating credit associations, as well as quasi-governmental or selfgovernance issues. 135 The parties to these agreements had a common focus of interest or
orientation that was the subject of the agreement, e.g. the need for irrigation of crops, the necessity
of dividing the family property, or imposing order in the village. 136 They all delineated the
obligations assumed by the parties, but did not always state the benefits or rights enjoyed. These
agreements often did not have middlemen, witnesses or guarantors, probably because in multiple
party agreements other parties to the contract could fulfill the role of fact finder or arbiter of
disputes. In some cases, these agreements expressly stipulated the penalties for violation of the
agreement, but in any case it was expected that the imposition of penalties or the enforcement of
the agreement would be done by the parties themselves or a person designated in the agreement,
rather than by the government.
27. Draftsmanship. - The agreements generally followed standard patterns. They were apparently
drafted on the basis of form books and, although regional variations in forms of agreements
occurred, in most cases the documents were quite similar. 137 The most distinctive aspect of the
agreements was the ingenuity shown in devising methods for self-help or self-enforcement. 138 We
noted above the presence of the middleman, witness or guarantor as one means of selfenforcement. Another common method employed was a down payment that could serve as
liquidated damages or provide for substitute performance. The reason for these stipulations for selfhelp was that it was cheaper and easier than the formal mechanisms of the state. 139
28. Cooperative agreements as self-governance. _ Cooperative agreements were a method of
self-governance in the rural community. They were drawn up and signed by the leaders, the elders
or gentry as the representatives of the village. 140 Although the picture is not entirely clear, it
appears that the village itself was a recognized legal entity that could own and dispose of property.
141 In many cases, this entity assumed the form of a lineage estate in those villages composed of
people from a common lineage, or a temple fund in other villages. In some villages of the former
type, the lineage's written rules took the place of the written contracts and were the basis for selfgovernance. 142 In some cases, agreements covering the whole village had only a narrow function,
such as the crop-watching associations of north China. 143
In general, these cooperative self-governance agreements were not full charters establishing a
constitution for village self-government. Instead, they were more commonly legislative or judicial in
nature. They addressed specific issues of economics and security that directly affected the
livelihood of the villagers. They included e.g. mutual pledges to raise the alarm and to cooperate in
seizing persons stealing crops from the field, not to damage the dikes, not to allow chickens in the
fields, not to cut down trees, not to cause trouble and to fine anyone who did. 144 The village not
only set its own rules over these matters, it also exercised the power of enforcement. The
agreements authorized the villagers to impose fines in both civil and criminal cases, but stated
clearly that where the offender would not pay the fine, the matter was to be handed over to the
district magistrate's office. '45 Further, the Ch'ing Code stipulated that cases involving serious
crimes, such as homicide, were not to be settled privately (i.e. with out the participation of officials)
but had to be reported to the magistrate. 146
ii. Agreements in Urban Areas
29. The urban background. - Agreements were also widely used in urban centers. Cities in Ch'ing
China developed largely along the lines set by the evolution of China's major municipalities in
earlier times. In fact, they may not have been as large as the cities of the Tang or Sung period.147
No city in Ch'ing times seems to have had a population of over one million. 148 This is not to say
that significant urban development did not occur in Ch'ing times. The rapid growth of Shanghai in
the 19th century is one good example. 149
Obviously, the cities differed from the villages in a number of respects, but it would be unwise to
overemphasize them. As opposed to Europe, and perhaps Japan, there was no sharp distinction
between urban and rural civilizations in China. 150 The structure of the cities may have exhibited a
variety and complexity not known in the villages, but the means of contractual enforcement and
dispute resolution were based on similar principles. It seems likely that the execution of agreements
was more frequent as one moved from village to market town to city. Any increase in the volume of
contracts, however, did not cause major changes in the nature of their form, execution or
enforcement. 30. Urban institutions related to agreements.
The institutions in the cities that were essential to the system of contract resembled those of the
countryside, but differed significantly in two respects. First, the lineage organization was weak in the
urban areas, and did not playa significant role in contract practice there. Secondly, the guilds and
native-place or regional associations were very important in urban areas.
(I) Guilds (kung-50). - Ch'ing guilds developed with the mercantile expansion starting in late Ming
times. ISI They had reached full maturity by the middle of the 19th century when they began to
change significantly in response to internal economic disruption or to WESTERN models of
commercial associations. They were generally composed of merchants or craftsmen engaged in a
single industry. The industries included the cloth, tea, pork, tobacco, and leather industries as well
as services such as carpentry, brokerage, wholesaling and retailing.152 Typically the leadership of
the guild was entrusted to a group of leaders that could vary from two to 30 persons who were
initially chosen to serve for a term of one year but could serve many consecutive terms. Like the
village communities, the guilds were closely connected with the local temples, often the site of guild
meetings.153
The primary function of the guild was to protect the economic livelihood of its members and provide
a basis for mutual aid activities. The guild was foremost an instrument to establish and protect the
monopoly in its industry. It did this through restrictions on competition, fines on members employing
non-guild members, protection of the guild's trade secrets, or exercise of a monopoly over supplies
of key raw materials.154 In addition to these functions, the guilds also helped to preserve order in
some cases, fighting fires and policing neighborhoods.
(2) Native-place associations (hui-kuan). The guilds were closely associated with another
organization that was essential to the urban contract background, the native-place associations
based on common place of origin, like the German Landsmannschaften. The associations were a
means of self-governance for their members much as the guilds were for theirs. As is common in
urban centers everywhere, the number of nonnatives in Ch'ing cities was significant. In some cases,
they outnumbered natives by ten to one.155 The number of associations in a major city could thus
be quite large. In Peking e.g. there were almost 600 such native-place associations.156 Nativeplace loyalties and a desire for support and protection away from home were the stimuli for the
organization of these associations. Since occupation often correlated with native place in Ch'ing
China (e.g. tea and cloth merchants were from Anhwei, porcelain dealers from Kiangsi), these
native-place associations often approximated or merged with guilds.157
(3) Gentry. - In urban centers the gentry fulfilled much the same role as in the countryside. The
gentry's functions expanded to fill the gap left by the state's abdication of local governance. In the
19th century, local officials, considering the assistance the gentry could offer in keeping order in a
time of turmoil, requested them to take over aspects of local governance.158 From one or two
specialized functions, such as assisting with grain shipments or water control, the gentry extended
their activities to more general acts of public welfare such as charities, fire fighting, policing and
street cleaning.
31. Types of urban agreements. - Although urban agreements were very numerous, they are
relatively unstudied. Nevertheless, the broad outlines of these agreements are clear. Like the
village agreements, they were not covered by a written contract law or regularly adjudicated in what
we would call a court of law. In the cities, as in the countryside, unofficial mechanisms were
employed instead.
The urban agreements, like those in the countryside, included both exchange and cooperative
types, but more attention has focused on the former. Exchange agreements existed in many forms,
but have been characterized as of three basic styles. 159 The first consisted of documents called
ch'i-yueh (deeds) or simply ch'i that were used for sales of real and personal property, loans,
employment and other transactions. The second types, called p'iao (certificates), were short
standard form contracts that were issued in large numbers and were freely transferable. These
were employed for pawn tickets, privately issued silver or gold certificates, bills of ex change and
other transactions. ](,D The third type, the tan (document), was a memorandum or receipt. Its
principal purpose was to give proof of payment or notice of delivery. It included general invoices,
payment receipts, warehouse receipts or evidence of an obligation to be performed in the future.
Most sales agreements between merchants took the form of a tan. These terse documents could
probably be understood only by those used to dealing with them on a professional basis. In some
cases, they did not state the quality of the goods sold, when or where delivery would be made,
which party was to bear transportation costs or indicate when risk of loss shifted or what was the
seller's liability for delay in delivery. These terms were not written into the document, but were
imposed by the local commercial practice of the time. Indeed, their very absence implies that they
were so familiar to the parties that they did not have to be put in the contract itself. 161
The distinctive aspect of these agreements, however, was not their brevity or the complexity of
implied terms, but the ingenuity shown in drafting documents that would be self-enforcing.162 For
this reason the contract rules were relatively simple; they referred to objective acts rather than
abstract principles and permitted contractual terms providing for self-enforcement mechanisms. Of
these features the most important was the last. The self-enforcement mechanisms were similar to
those used in the rural contracts and included prepaid deposits, simultaneous performance, thirdparty guarantors, and middlemen. 163
32. Enforcement of agreements by urban institutions. - As in the countryside, state control in the city
did not extend down to the enforcement of most agreements. The enforcement of contracts and
related disputes was in many cases handled by the institutions noted above (s. 30). This is not to
say, however, that the state was entirely unconcerned or uninvolved. Rather, there was probably an
increase in state intervention versus local self-governance as one moved up the administrative and
economic hierarchy.
Of the urban institutions noted above, the guilds are best known for their role in enforcing contracts
and resolving disputes. They handled most effectively conflicts between guild members, but could
also hear matters involving a member and a non-member. In resolving disputes, the guilds applied
customary commercial practices to reach decisions and enforced them through coercive measures
such as fines or boycotts. In some cases, the offender was required to hold a feast, thus allowing
him to regain "face" by acting as the host of the banquet.'64 The native-place associations and
gentry also acted to enforce contracts and resolve disputes, but their role is not well documented.
The middleman also handled many disputes in the first instance. In cities, brokers licensed by the
state served as middlemen and as witnesses, mediators and guarantors in many commercial
transactions.'65 The middleman was not only someone familiar with the facts of the transaction, but
one who had his own commercial reputation and "face" involved in any contract to which he was a
party. Rather than develop an impersonal market enforced through a formal legal system, Ch'ing
China improvised a chain of personal guarantors to provide the necessary security for commercial
activities. 166
iii. The Law of Agreements
33. The types of contract law. - It has often been said that Ch'ing China had no contract law.'67 If
what is meant by law is a nationwide set of written rules promulgated by the state, then this
statement is largely correct. The Ch'ing Code was, like its predecessors, primarily criminal in its
orientation.168 Only a very small percentage of its statutes related to what are generally recognized
as civil matters. This is not to say that the Ch'ing Code completely ignored contracts, but it does
mean that in Ch'ing China there never evolved a contract law, i.e. a uniform written system of rules
developed to handle the formation, interpretation and enforcement of agreements.
Indeed, contract law did exist in Ch'ing China if we expand the understanding of law to encompass
other national and provincial statutes or regulations, local unwritten customary law, written village
and clan rules, and the terms of individual agreements. All these constituted elements of Ch'ing
contract law because disputes relating to agreements were handled by reference to them and they
thus were the bases for varying degrees of enforceability in accordance with the official or
nonofficial mechanisms noted above. Within this hierarchy of law, the national legislation took
precedence over local custom, which in turn took precedence over village or clan written rules, and
the latter took precedence over the term of the individual contract.169 But national legislation was
sparse while local customary law was abundant. From a modern viewpoint, however, this total body
of contract law was neither systematic nor complete.
The lack of a formalized national contract law was closely related to the failure to distinguish
between civil and criminal matters. The law, as embodied in the Ch'ing Code, was largely what we
would call criminal, i.e. it set forth prohibited conduct and punishments by the state for
violations.170 For the most part it was not concerned with commercial or other so-called "small
matters relating to finance and marriage". The Code's provisions relating to land illustrate this point.
Of the II statutes on this subject, six relate to theft, while five concern administrative aspects of land
management.171 Only one addresses the issue of transfer of interests in land through an
agreement and it imposes criminal punishment on those guilty of fraud, as in remortgaging land
already mortgaged or in refusing to allow redemption of mortgaged land. Thus, violation of a
contract in either of these two ways was a criminal matter.
34. Contract law in the Ch'ing Code. - Although the Ch'ing Code's emphasis was criminal, it did
contain some provisions relating to contracts that reflect contract principles familiar to modern
EUROPEAN legal systems. Contract issues are raised in the statutes concerning division of family
property, sale of land, monopolization of markets and bailment, but are most clearly illuminated in
the stipulations on marriage, or more precisely, the contract of betrothal. 172
The Ch'ing Code required either one of two elements to form a valid betrothal agreement, a writing
(called the marriage document) or the delivery of gifts from the fiance's family to the fiancee's
family. 173 The Code also mentions that where a writing is used it should be drafted through the
efforts of a matchmaker. 174 Formally, the matchmaker does not seem to have been required
where no writing was used, but in practice one seems uniformly to have been employed.
The Code does not explain in any detail what form the marriage document had to take, whether it
had to be signed by the parties, and whether it bore the names of the fiance and fiancee and the
amount of gifts. Nor does it identify what form or what amount the gifts had to take. Finally, it does
not detail the responsibilities of the matchmaker, although it does indicate that the matchmaker
could be punished if the fiance's family sold the fiancee to a third party and the matchmaker knew of
such a plan beforehand.175 The Code also contained a provision on representations in betrothal
agreements that called for the disclosure of certain facts before the conclusion of the agreement.
These facts were whether either the fiance or fiancee was maimed or sick, their ages, whether they
were born by a wife or concubine, and whether they were adopted from relatives or from unrelated
persons.176 Only after these facts were disclosed were the parties to proceed with the matchmaker
to draft the marriage document.
The purpose of these requirements seems obvious. Like the necessity for consideration in
ENGLISH law, 177 the presentation of the gifts was a detriment to the giver that manifested the
seriousness of intent, while the gifts themselves served as physical evidence of the intent. The
marriage document in a similar fashion fulfilled these same purposes. The disclosure requirement is
similar to contract-law stipulations that a contract can only be formed if the parties have reached
agreement and that to do so they must have a common understanding of the object of the contract.
But these requirements were not sufficient to constitute more than part of a complete contract law.
They did not cover such essential issues as remedies for breach by the fiancee or define the
requirements of the marriage document or the gifts. These issues were left to local custom.
35. Contract law in other legislation. - Although rarely, the Ch'ing state did promulgate rules
regarding agreements to address specific problems. One example is an order from the Governor
(hsun-fu) of Fukien Province in 1760.'78 This order required that from then on contracts mortgaging
(tien) land be executed in two originals, while contracts for sales of land be executed in one original.
Since the seller in the latter case gave up his interest in the land, there was no need for him to
retain any document relating to the sale.
In the former case, since the original owner of the land could redeem the land upon the payment of
a certain sum, both parties to the transaction should retain originals of the contract. In addition, the
order appended copies of model contracts that were to be followed in drafting. 179 This order,
although relating to the law of contract, did not alter the rights or obligations of the parties towards
each other. It was more a manifestation of the state's interest in preventing disputes and preserving
order.
36. Contract law in custom. - The single greatest source of contract law in Ch'ing China was local
custom. In some cases, as noted above (s. 33 - 35), the Ch'ing Code or other legislation
established a few general rules that were elaborated and supplemented by local custom. In other
cases, no legislation existed and local custom constituted the entire body of law. Generally, this
customary law was unwritten. The one exception to this was that model contracts were often
documented in handbooks or in other ways that gave a written form to the local customs.180 These
model agreements, although generally similar, varied in accordance with local custom. The clever
drafting of these documents to provide for self-enforcement was most often probably a reflection not
of the ingenuity of the individual middlemen, the scribe or the parties, but of local custom that was
embodied in the form agreements.
We can see the manner in which local customary contract law supplemented the Ch'ing Code in the
rules relating to the betrothal agreement. Local custom followed the Ch'ing Code requirement that
there must be a writing (and a matchmaker) or gifts for a betrothal contract to be valid (supra s. 34).
In many localities a marriage document was prescribed together with gifts, although cases existed
where only one of these elements was necessary to constitute an effective contract.181 Local
custom provided in some detail what the document should be. In some instances, it consisted
merely of cards with printed formulaic words, but otherwise blank. 182 In other areas, the custom
required the documenting of the hour, day, month and year of birth of both the fiance and fiancee,
the names of the parties to the agreement (the makers of the marriage), the name of the matchmaker and the date.18) Often these documents were not signed by the parties themselves. In
cases where gifts were given, however, the nature or amount of the gifts were agreed upon before
they were given or the document completed and in some cases had to be specified in the document
to prevent later disagreement. 184 In some areas, the matchmaker served as a guarantor of the
gifts.'85
iv. Enforcement of Contracts
37. We noted in the preceding sections the informal and self-enforcement mechanisms for
agreements in Ch'ing China. In addition to these self-help measures, the state possessed its own
means for the hearing of contractual disputes and the resolution of disputes relating to them. This
was the district magistrate, the lowest level official in Ch'ing China.
In most societies it seems clear that disputes concerning contracts, including their enforcement, are
generally resolved informally.186 In China, this was especially true because of the various
institutions that existed to help in settling disagreements. Contrary to the practice in Tokugawa
Japan, however, the common people were not prohibited from bringing suits regarding contract
matters to the district magistrate. It is clear that disputes did reach the district magistrate, although
scholarly opinion is divided on the question of how great a role the magistrate played in civil, as
opposed to criminal, cases.187 But there was an "exhaustion of remedies" practice under which a
magistrate might well refuse to hear a contract case if the village elders or others had not given
their decision first.188 On purely commercial matters it seems that the members of a guild would
rarely appeal from a decision by the guild elders because technical issues of commercial practice
were best handled by those most familiar with these customs.
The distinction between formal and informal institutions for the enforcement of contracts may be
deceptive because both, as in Japan, were essentially administrative. The hearing of a case by the
district magistrate was not conducted in accordance with a complex set of procedural rules.
Regulations prescribed the times at which suits could be brought, the written forms for documents,
related fees and some other matters, but no formal detailed procedural rules existed.'89 Many other
aspects of modern justiciable law were also absent. No lawyers represented the parties, there was
no distinction between adjudication and administration, the district magistrate was not a native of
the district and was neither familiar with local custom nor a professional full-time judge; he was primarily an administrator. Judgments were made not so much on the basis of law as on the basis of
equity as perceived by the district magistrate.'90 It appears, therefore, that the proceedings and
results in contract cases were in many respects similar whether they were handled through informal
or formal official means.
It is difficult to know what percentage of contract cases were resolved through informal or formal
means. Undoubtedly many cases did not reach the district magistrate. This was due in part to the
fact that many contract cases were resolved through informal institutions. It was also due in part to
a number of disincentives to litigation in the district magistrate's offices. Principal among these were
the fear of entanglement in a process which could lead to criminal countercharges and over which
the plaintiff lost control after the filing of the initial complaint, and the expenses of litigating a claim,
primarily because of the exactions of the court clerks.191 Surely these problems did cause potential
plaintiffs to consider carefully whether it was worthwhile to bring a complaint concerning a contract
dispute to the district magistrate, but the evidence shows that they certainly did not prevent suits on
such matters from being brought.192
One respect in which the formal and informal enforcement mechanisms exhibited much similarity
was in the nature of their decisions. One might expect that the district magistrate's decision in a
case would carry the coercive force of the state and therefore be more readily enforceable through
resort to force if necessary. Although this may have been true in some cases, the impression one
forms from the evidence available is that this was not necessarily the case.193 The district
magistrate's authority was limited. He could not e.g. order the attachment of assets in satisfaction of
a breach of contract action. 194 Further, the magistrate's decision was often merely a settlement
rather than a judgment.195 The magistrate, realizing his power to enforce a decision was limited
and wishing to enhance its enforceability, often pressured the parties to execute settlement
undertakings in which they agreed to abide by his decision. This practice illustrates that even the
formal judicial system in handling contract disputes relied at times on written agreements between
the parties, an informal self-enforcement mechanism, to assist in enforcing judgments. It also
demonstrates the close relationship between the formal and informal systems of contract enforcement in Ch'ing China due to the shallowness of state control.
D. CONCLUSIONS
38. General comparative remarks. - We have tried here to point out the analogies as well as the
distance between Tokugawa and Ch'ing agreements and the modern lawyer's contract, distance
not only in time and place but in concept and usage as well. While noting the distinction between
agreement and contract (a justiciable agreement), the stress must be put on the importance of
formal written agreements in traditional social organization in these periods, even though there did
not yet exist enforcement agencies identifiable by lawyers as courts.
Elsewhere as well, courts and judges travel a long evolutionary road before they become
specialized and independent enough to be recognized as a judiciary in modern parlance and the
evolutionary process is not uniform nor is the outcome assured. But agreements serve many
functions analogous to contract, and indeed are enforced socially, long before independent courts
evolve to enforce them as contracts. Thus, in Tokugawa and Ch'ing times we find (by application of
our trained conceptual hindsight) much "confusion" of (I) public law and private law, (2) criminal and
civil, (3) administrative and judicial functions, and (4) substantive and procedural law (rights and
remedies), as well as "confusion" of legal and social solutions to daily human problems.
Nevertheless, glimmerings of contract appear in the merchants' cases in the Tokugawa towns,
especially after 1840. No similar Ch'ing development is discernible.
39. japan. - Considering usage in the towns and villages in Tokugawa Japan, five points stand out:
(I) Merchants, relying on credit enforced by the guilds, especially in Osaka, dealt more informally
with a handshake, a sealed ledger entry or simple receipts. (2) Still, in both towns and villages,
agreements were pervasively used in all aspects of life. (3) Many types of agreements were
standardized as to form and meticulously executed so that they could be enforced by social means
within the guilds and towns and villages. And (4), most significantly, they were signed or supervised
by guild or village officials, relatives, and neighbors as custodians, recorders, guarantors and
witnesses. Finally (5), many formal private agreements had a public aspect and were indeed
instruments of such communal consequence that they were in fact methods of consensual
governance, performing something like constitutional, legislative, or judicial functions. Given the
tight interdependence and immobility of Tokugawa villagers, one suspects that social pressure was
enough to enforce the consensual arrangements embodied in the usual multiparty guild or village
agreements. The functioning of agreements in these communal units also shows that they were
quite effective in settling nearly all disputes which arose in the routines of daily life and that they
enjoyed considerable autonomy in managing internal affairs.
Nevertheless, one consequence of communal enforcement of this sort could be to impair the quality
of consent and the nature of agreement. Under communal pressures dispute settlement by
agreement may not in fact be agreeable to the weaker party. Such conciliation may be "didactic"
196 and subtly coercive. It is not just that it is better to settle; but that a failure to do so would bring
adverse consequences for the party unwilling to settle.
In this Tokl1gawa practice of compromise and agreeable governance, there is an analogy to the
"one-sidedness" 197 and adhesion in contemporary contracts. This is important in modern theories
of contract because part of contract's moral merit is in its voluntariness.'98 Without courts and law
to police and enforce volition in the agreements, the moral quality of the process is diluted.
But in Tokugawa Japan there developed gradually an administrative concern with commercial
agreements, which led to the acceptance of certain formulary claims into the shogun's
administration of justice. An inchoate contract law was growing up in the interstices of the
procedures for deciding how or whether to accept (and if so, what kind of), commercial claims for
enforcement in the Edo commissions.
But fascinating as this Japanese evolution of administrative remedies may be, the most important
question regarding the enforcement of Tokugawa agreements was not what documentation might
"stand up in court". Rather, a better question would be, what would stand up between the parties, or
in the guild, or in the town or village. In order to prevent or redress breach, self-enforcement and
social enforcement surely overshadowed as a contract remedy shogunal administration of justice.
In this sense, the aphorism often mouthed by lawyers that "a right without any remedy is a
meaningless scholasticism", 199 was, in a sense, true in Japan, but because of its peculiar "legal
culture", the remedies did not normally come from the courts.
40. China. - Ch'ing China exhibited less administrative concern with commercial agreements than
Tokugawa Japan. As a consequence, China did not develop the complex procedural rules and
related substantive contract law that characterized the Japanese shogunate. Nor did it differentiate
to the extent that Tokugawa Japan did between the informal system of social enforcement of
contracts and the formal system of administrative enforcement. The reasons for these differences
between the two countries, which shared a common literate culture, may lie in the feudal structure
that gave rise to diversity claims in Japan and to the smaller scale in land area and population of
Tokugawa Japan as compared with Ch'ing China. While both countries had significant urban
centers, the merchants and cities seem to have been relatively more important to the country as a
whole in Japan than China. Both countries had shallow governments, but China's government
seems to have had less interest in, and perhaps resources for, establishing a bureaucratic system
to resolve contractual disputes. The most developed form of contract law in Ch'ing statutory law
was that relating to a family matter, betrothal, rather than a commercial transaction between merchants, as in Japan. These differences also may explain to a certain degree the relatively more
successful adoption of WESTERN contract law by Japan during later periods.
(Completed March 1992)
1 For prior practice, see Kakinuma, K6dai keiyakuk6: Nihon Daigaku Hogakkai (ed.), Hoseishigaku no shomondai - Fuse Yaheiji Hakushi k6ki kinen ronbun-shli (Tokyo 1971) 43 -54; Hiramatsu
34; Nakada, Shih6 31 (for ancient teuchi practice).
2 See Henderson, Chinese Legal Studies in Early Eighteenth Century japan - Scholars and
Sources: 30 JAsian Stud. 21 - 56 (1970); and idem, Influences.
3 Some have suggested that, indeed, the very "idea oflaw" was lacking in traditional China;
political and social behavior are said to have resulted from innerpersonal forces of moral derivation,
rather than from external, imposed rules. See Needham; Crane!, La pensee chinoise (Paris 1934)
457; if, Northrup, The Mediational Approval Theory of Law in American Realism: 44 Va.L.Rev. 357359 (1958), seeming to characterize as "law" some of the same things Needham discusses.
4 We shall use "contract" to refer to modern WESTERN usage and "agreement" to refer to nonjusticiable promises. Cj, E. Cerli & Co. v. Cunard S. S. Co., 48 F. 115, II7 (2 Cir. 1931) where Judge
Learned Hand states the distinction in a typical lawyerly fashion: ". . . But an agreement is not a
contract, except as the law says it shall be, and to try to make it one is to pull on one's bootstraps.
Some law must impose the obligation, and the parties have nothing whatever to do with that; no
more than with whether their acts are torts or crimes."
5 Some basic facts may be helpful to nonspecialists. By definition, the daimyo were the shogun's
top layer of vassals each with assessed production capacity of at least IO 000 kaku (about 50000
bushels) of rice. The second layer were bannermen (hatamata), with fiefs (or stipends) of less than
10000 kaku. The daimyo collectively (about 260) held about three fourths of the production capacity
for rice, the shogun, about one seventh, and the bannermen the rest. Thus, rice was the chief
measure of power, and was, initially, a unit of exchange and payment to vassals as well. Only 22
daimyo had sufficient power to be potentially threatening to the shogunate, and only about 120 had
castles. But administratively important is the fact that they all had plenary powers to administer
justice in their fiefs (han). Many of the 5000-odd shogunal bannermen also were enfeoffed lords
with villages of their own, including authority to administer justice. In the complexity of literally
hundreds of feudal jurisdictions, the' shogun had jurisdiction over cases straddling fiefs (i.e. plaintiffs
suing defendants from a different fief), called diversity cases (shihai chigai). In addition, the
shogun's justice also prevailed directly in his demesne (one seventh of japan) and the major cities.
Such was the complexity of the regime. For more details, see Henderson, Conciliation 1 ch. 2 and
4.
6 Edo was the seat of the shogunate (r603-r868); it was renamed Tokyo after the restoration of
the emperor, who moved from Kyoto to reign in Tokyo, occupying the shogun's castle there.
Tokugawa power was based on conquest, and, after victory, the heads of the Tokugawa house
became shoguns and hereditary chiefs of the feudal system for r5 generations. Feudal devices
(fealty and enfeoffment) were used to bind the major military contenders (tozawa daimyo) to the
Tokugawa. The highest levels of conquered potentates (also allied daimyo, called Judai) were thus
structured in a complex system by ties quite similar to mature EUROPEAN feudal institutions,
which, incidentally, were not found in Ch'ing China.
7 There were perhaps r 50 000 of them; see Smith, Land Tax 8.
8 Edo, one of the largest cities of the world in J 800 and the major center of consumption; Osaka,
the primary supply and distribution center; Kyoto, the imperial capital; Nagasaki, the only official
port of access for foreign trade limited to Dutch and Chinese; and others.
9 E.g. Kanazawa, Hakata, Kagoshima and Sendai.
10 Warriors not employed in the administration
had become supernnmeraries, withont battles to fight and often underemployed and underpaid.
11 See Bohannon, Social Anthropology (New York 1963) 155 for the distinction between
contracts of exchange and contracts of cooperation.
12 In the shogun's demesne, there were about 40 deputies, all of bannermen rank; each
administered shogunate rice lands of about 50000 to 100000 koku, five to ten times that of a
minimal daimyo. They were, of course, shogunal agents, not enfeofees.
13 See The Oxford Dictionary of Quotations (ed. 3 Oxford, New York a.o. 1979) I.
14 Village communal governance was more a matter of sociology or social anthropology than law;
agreements were important to its process, as noted in the text. The difficulties of bridging
anthropological "law" and justiciable law have been discussed by the writer before; that analysis
cannot be carried any further here; see Henderson, Conciliation 155-56.
15 Some larger villages were split between two (or sometimes even more) petty feudal lords and
called aikyu-mura. Especially in the Kinai (Izumi, Kawachi, Settsu, Harima and Yamato), aikyu
villages were numerous. A simple description of the village system may be found in Ishii Gaisetsu
399, 440 and 444.
16 The degree of autonomy is controversial. See for the issues, Hayashi (Ode) and Hayashi,
Review of article by Uesugi, Kinsei sompo no seikaku, Minshushi kenkyu (No.7) 22 (1969): 21
Hoseishi kenkyu 226-228 (1971).
17 See pictures and descriptions of tax surveys in Ishii, Edo jidai mampitsu (Tokyo 1959) 32; for
details of the shogun's tax collection system, see Ohira, Edo bakufu daikan no ichi-kosatsu: 36
Hogaku I-55 (1972); also Ishii (supra) 216, 223, 275, 278 (details of the accounting records).
I8 Smith, Origins 173 emphasized the changes in family resources over the long term.
19 Kujikata Osadamegaki II art. 30 (Eng!. trans!. HaI/713). See Takeyasu, Tahata eidai baibai
kinshi-rei to sono igi (Osaka furitsu daigaku keizai kenkyu no. 16 (Osaka 1959); and review by Ishii
Shira: 12 Hoseishi-kenkyu 256-257 (1961).
20 See Haruhara Gentaro; also HaraJuji, Sh6sho 100 n. 2, for citation to Edo-period form books
for drafting proper documents. See also Kaneda, Koyoho no. 7-10.
21 Maki, Jinshin deals with the sale of persons.
22 See idem, Koyo for employment agreements; and see Kujikata Osadamegaki I art. 72 for
repeal of the ten-year limit.
23 See Henderson, Village "Contracts" 149- I 50 for an example of "service" contracts amounting
to a sale of a daughter.
24 See Maeda, Ryoshuho-jo !OI; Fuse, Mura hachibu no sosho: 23 Nihon hogaku no. 3, 376-389
(1955).
25 Many customs for documenting agreements were collated and recorded by travelling survey
teams sent out by the early Meiji government. The surveys were later published. See Takimoto
Seiichi (ed.), Minji [Classified collection of civil customary practices], originally compiled by the
Ministry ofJustice (Shih6sh6) 1877; see also idem (ed.), Shoji [Classified collection of commercial
customary practices], originally compiled in 1883 - 1884. These materials are also found in Nihon
keizai taiten vol. 49 and So. For works in English, see Wigmore (ed.), I (Introduction), II (Contracts Civil Customary Law), IV-A (Contract - Commercial Customary Law). These volumes are based on
work started by Wigmore in 1890 and partially published in 20 Trans.As.Soc.]apan (ser. 1) (1892).
In all, ten volumes were projected for publication by the University of Tokyo Press based on
manuscripts, some of which were edited originally in the 1890'S, others in the 1930'S and early
1940'S under the auspices of the Kokusai Bunka Shink6kai. Only nine were published, because the
Glossary was abandoned.
26 See Kansai Daigaku H6seishi Gakkai and Kansai Daigaku Keizai Gakkai Keizaishi Kenkyushitsu (ed.), Osaka shuhen no sonraku shiryo III (Shomon-shu, mura-yakunin) (Osaka 19s6).
27 See Kamata 122; also Henderson, Village "Contracts" (agreements no. 9, ISA, ISB, 42 and
4S). This is a source book containing 53 translated agreements with auxiliary documents. They
were selected to represent reasonably typical examples of agreements, dealing with 15 types of
village transactions regularly encountered.
28 Ishii Ryosuke suggested in his review of Henderson, Conciliation: 83 H6gaku ky6kai zasshi
1369139° (1966), 2 LJapan 198-224,216 (1968), that the requirement that the headman seal a
villager's petition to the deputy was only to identify the petitioner as registered in the village, not to
make the headman's approval necessary to suit. This may be, but given the acknowledged duty to
conciliate, it amounted in practice to much the same thing.
29 See Maeda, Ry6shuh6-j6 101.
30 Henderson, Village "Contracts", agreement no. 50.
31 Ibidem no. 39, 4° and 41.
32 Ibidem no. 43 and 46.
33 Ibidem no. 2, 68, 8 and 10.
34 Ibidem no. 9.
35 Maeda, Sonpo.
36 Henderson, Village "Contracts", agreement no. 45.
37 Ibidem no. 12.
38 Ibidem no. 42 A and 42 B.
39 Ibidem no. 21 and 23.
40 Ibidem no. 20.
41 Ibidem no. 14, 15, 16 and 22.
42 Ibidem no. 17 and 18.
43 See idem, Conciliation I 128.
44 See ibidem I ch. VI for examples of extensive negotiations, after "trial" started, conducted by the
officials themselves.
45 Henderson, Village "Contracts", agreements no.2, 8, 9, 10, 36, 46 and 48.
46 Nakada, Jitsuroku, esp. the "market case" at 878; and see another example of a "judgment"
(saiky8) in Kukita 192-203.
47 Henderson, Village "Contracts", agreements no. 49 and 50.
48 Ibidem no. I and 2.
49 Ibidem no. 3 -7.
50 Ibidem no. 30, 3 I, and 32.
51 Ibidem no. 8 and 9.
52 Ibidem no. 13.
53 Ibidem no. 12.
54 Ibidem no. 10 and I I.
55 Ibidem no. 19-27.
56 Ibidem no. 14-18.
57 Ibidem no. 32 is such a case; see generally Maki,Koyo.
58 Henderson, Village "Contracts", agreements no. 33-38. See generally Otake.
59 See Hiramatsu 33. See also Kaneda, Keiyaku. Although contracts for creditor's self-help in case
of breach were improper by the late Tokugawa period, such contracts did exist. Haruhara, Kikimimi
'hasannin' monjo: 17 Horitsu no hiroba no. 5, 50-52 (1964). Note the functional similarity of the
witnessing and recording done by the village headman and the modern CIVIL LAW system of
notarial deeds, upon which judgment for a sum certain may be entered without further proof. For the
Japanese provisions, see Koshonin-h6 art. 35 and 36, and CCProc. art. 559560.
60 See Wigmore (ed.) II 6- ro, saying not all sureties (shonin) were actually liable if the principal
debtor defaulted; it depended on the agreement's wording which varied by custom from place to
place. Idem III 20 (no. 14) says sureties are not liable, if the principal is convicted of crime and thus
unable to pay. Ishii Ryosuke VII 325 explains the difference between wit ness and guarantor in
Osaka and Edo.
61 See Henderson, Conciliation I ch. III.
62 Maeda; and Fuse, supra n. 24.
63 Henderson, Village "Contracts", agreement no. 46.
64 Ibidem no. 46, 48 and 50.
65 Concrete studies of deputies' administrative handling of petitions are still scarce; see Kukita I49255. One case (I49) is an interesting example of a dispute over reclaimed land being escalated into
a petition against the headman. Ishii Ryosuke promises treatment of deputy proceedings in his next
volume (IX): idem VIII 1. The most detail on the deputy's handling of cases is found in Hiramatsu,
Kinsei keiji sosh6h6 no kenkyu (Tokyo I960) 460. He deals with administrative and jurisdictional
aspects of criminal proceedings, but, much of the material is relevant to civil matters. See also
Nagayama, Hayakawa daikan (Tokyo 1971, 1929 ed. rcpL); Ishikawa, Edo jidai daikan seido no
kenkyu (Tokyo 1963); and Watanabe (ed.), Hikone-han Setagaya daikan kinjiroku (Tokyo 1961);
Murakami, Edo bakufu no daikan (Tokyo 1970). Voluminous as these studies are, they contain
relatively little on the deputies' dispute resolution functions. Other specific case studies appear here
and there in the journals. Kumazaki, Daikan-k6: Nihon Daigaku Hogakkai (ed.) (supra n. I) 139-161
introduces an Edo-period manuscript, O-daikan yoshO (three manuscript voL) which contains
concrete information on the deputies' handling of cases.
66 The farmer uprisings (hyakusho ikki) have been much studied; most were disturbances directly
protesting deputy administration (i.e. administrative actions) but some involved divisive issues
within the village as well. The pioneer work in English is Borton, Peasant Uprisings in japan of the
Tokugawa Period: 16 Trans.As.Soc. japan 1-230 (1938). Three recent studies are: Nagayama
(preceding note) 584 (instance involving a protest against an official change in the rate by which the
rice tax was converted to money for payment); Wigmore (ed.) I 110; and Kukita 149 case in which
villagers alleged in Edo bribery against the daikan's clerk.
67 Many examples are found in the literature of two villages disputing with each other here and
there, but little effort has been made so far to bring examples together in comprehensive studies of
village disputes. See Nakamura (ed.), Takata hanseishi kenkyu (Tokyo 1971) VI 447 (two fishing
villages before the deputy, Arai). It is nonetheless clear that such intervillage disputes constituted
for deputies one of their most serious "judicial" problems, along with intramural disturbances that
could not be resolved by the usually effective intramural conciliation process.
68 By 1800, Edo was probably larger than any city in Europe; it was a city of consumption in that
each daimyo - as well as thousands of their retainers and of shogunal retainers, together with the
retainers' families -lived there in a kind of hotel existence away from their fiefs and source of
sustenance. Osaka was a huge market that supplied Edo and other places and thus a commercial
entrepot, where daimyo from most ofJapan shipped and stored rice and every other product to be
transshipped to Edo and marketed. This interurban commerce became very active, and called forth
both interurban sailing transport and money exchanges. The coin of Edo was gold; Osaka was
silver, so the money changers (ry6gae) were well developed too.
69 I.e. Edo, Osaka, Kyoto, Nagasaki and others.
70 I.e. Kanazawa, Nagoya, Sendai, Kagoshima and others.
71 In English, see Sheldon, The Rise of the Merchant Class in Tokugawa Japan (New York
1958); Wigmore (ed.) I 83 - 144.
72 Kobayakawa Kingo, Sosh6 529 notes that the typical villagers' (murakata) suit concerned land
(ronsho), while the typical suit brought by townsmen (machikata) concerned money (kanekuji).
Jurisdictional problems typically stood in the way of a rural Tokugawa villager bringing proceedings
to the central Edo offices, where kanekuji constituted the bulk of the case load (see infra text).
73 Many townsmen's suits included farmers or warriors as opponents, of course. For statistics on
the number of cases filed in Edo and Osaka, see Kobayakawa Kingo, Sosh6 8 - 10; see also
Kaneda, Minji.
74 An interesting example of a trading farmer is Nuinosuke, whose suit is written up in detail in
Henderson, Conciliation I ch. 6.
75 For guilds generally, see Miyamoto.
76 See infra s. 17. In English, Henderson, "Contracts" in. Tokugawa Villages: I J.]ap.Stud. 51-90
(1974); and idem, Conciliation I ch. 4-6. In the postwar period until recently, Tokugawa civil litigation
was less studied in Japan than was Tokugawa criminal procedure (see Hiramatsu, supra n. 65).
One reason for this lack of interest may have been the intricate formulary system which includes
both "right and remedy". This conjunction makes it necessary first to study the many standard
transactions (over 50) which were classified as main suits or as money suits. Then all main suits
were handled by special procedures and remedies, while money suits were handled by different
and less effective procedures and remedies. The pioneering study of procedure is Kobayakawa
Kingo, Sosho. For a simple summary ofTokugawa civil procedures, see idem, Saiban. The
pioneering works on the substantive claims is Kaneda, Saiken-h6; and idem, Minji. Kaneda treats
the formulary system as an amalgam of procedural and substantive law, which captures the reality
of the proceedings. See also Ishii Ryosuke, Meyasu. Particularly interesting recent volumes related
to contract disputes are: idem VIII and VII; Harafuji, Keijih6.
77 Kobayakawa Kingo, Sosho is still the most detailed work on the intricacies of jurisdiction in civil
cases. In English, Henderson, Conciliation I ch. IV; the maps there are helpful. For jurisdiction in
crimes, Hiramatsu, supra n. 65.
78 Kumazaki, supra n. 65, contains materials from a
daimyo's deputy.
79 See Kujikata Osadamegaki I art. 8- 12.
80 Three examples are: Kukita 149; Nagayama (supra n. 65) 584; and Wigmore (ed.) I 110.
81 Osaka and Kyoto each had special jurisdiction in cases from four provinces contiguous with
them; Henderson, Conciliation 92 - 97.
82 Ishii Ryosuke VIII 219-260 has a full description
of the Conference Chamber.
83 In Edo litigation the judge (hugyo) was an administrative officer, for whom trial of cases in the
Conference Chamber was but a side duty. However, the Chamber was essentially devoted to
administration of justice. This was a kind of separatiou of executive and judicial powers, but the
same official exercised both. Actually the detailed handling of cases evidence, testimony, records,
searching for applicable precedents and decrees - was done by clerks (tomeyaku, etc.) under the
bugy8. When we use the terms judge, court, and trial, these features of the Edo judiciary must be
borne in mind. There was no independent court or judge in the modern sense.
84 See Ishii Ryo5uke VII 123 and 299 for detailed consideration of these differences in Osaka.
85 See limbo for use of Osaka models in the 1843 reforms in Edo.
86 Harafuji, Keijiho 592-699 gives a detailed analysis of the role of documents in the Edo
proceedings.
87 Ishii Ryo5uke VIII 3 - 219 has a recent summary of steps in a typical proceeding, esp. the
confrontation (taiketsu) 134; in English, Henderson, Conciliation I 6.
88 Kobayakawa Kingo, Sosh6 529 notes that the typical villagers' (murakata) suit was the land
dispute (ronsho), the townsmen's (machikata) the money suit (kanekuji). Edo proceedings, where
kanekuji and diversity cases constituted the bulk of the case load, were not ordinarily available to
the rural villager, because of the jurisdictional arrangements. But ronsho frequently were suits by
one entire village against another from a different jurisdiction; as a diversity case the suit thus
qualified for an Edo hearing.
89 These suits were not accepted for hearing in Edo. Kujikata Osadamegaki II art. 33
("Adjudication in money debt cases. - Where a number of persons are co-signatories of a deed [i.e.
a contract] for the execution of some undertaking, and a suit regarding the division of the profits
amongst the joint signatories is brought by any of them against the others, such a suit is not to be
entertained, being a matter of company adjustment [nakama no koto]": trans!. Hall (part IV) 184 186.) See Kaneda, Nakamagoto. For a precedent in English, see Wigmore (ed.) III 146-154, case
no. 52 (Finance Commission).
90 Ishii Ryosuke says in his review (supra n. 28) that endorsements for both main and money
suits required preliminary conciliation in diversity suits where one party was from Edo as with the
"nanuka uragaki" as prescribed by Kujikata Osadamegaki II art. I ("Endorsement and preliminary
sanctions of plaints. - . . . The endorsement to be made on plaints in the above-named cases
[diversity cases involving an Edo townsman as one party] is to be as follows: Let the villageheadman (na nushi) and the house-heads (iye-nushi) and the punshayets (gonin-gumi) [literally
five-man-groups] of both parties come together and settle the matter in dispute; in case they fail to
reach an amicable settlement, let the parties as aforesaid appear before us within seven days":
trans!. Hall (part IV) 154).
91 See Ishii Ryosuke, Meyasu 81; also Harafuji, Keijih6 809. The 1719 decree was exceptionally
harsh in that it outlawed until 1729 suits on future money claims as well.
92 Kaneda, Saiken-ho, and idem, Minji. Also Ishii Ryosuke VII 363 -426. These are the most
detailed works on types of suits in the formulary system. Also
for main suits, see Kobayakawa
Kingo, Sosh6 543.
93 Ishii Ryosuke VII 12.
94 Maine, Dissertations on Early Law and Custom (1883, repr. Delhi 1985) 389.
95 Minji kanreishu, sosh6 no bu 8 - 8 I (Eng!.: Wigmore (ed.) IX no. 60,121-124).
96 Considerable new detail is found in Ishii Ryosuke VII 363-426 (Edo), 200-292 (Osaka); Nakada,
Tokugawajidai no fudosan tampoh6: 2 Hoseishi ronshli 523 - 560, 524 (1943) for pledges (shiehi)
and mortgages (kakiire); Kobayakawa Kingo, Minji sosh6 for honkuji; Kaneda, Minji for kanekuji.
97 See HaraJuji, Sh6sho 92. He agrees that the document is a prerequisite to a right to sue, but
states that it does not itself give rise to the substantive contract right; the right can subsist without
documentation, even though it may not be enforced.
98 Ishii Ryosuke VII 12 (toriagenai).
99 These policy issues have been discussed recently in Ishii Ryosuke VII 27, and Harafuji, Kinsei
202 and idem, Keijih6 4 - 5, 699.
100 Ishii Ryo5uke VII 26.
101 Harafuji, Sh6sho 200.
102 Ishii Ryosuke VII 27.
103 These penalties were e.g. explicitly provided for in the 1719 Mutual Settlement Decree (which
incidentally was, exceptionally, made applicable to future money claims as well until abolished in
1729); see Ishii Ryosuke VII 18.
104 Kobayakawa Kingo, Sosh6 8 - 10
105 See the policy makers' exchange of views in which Town Commissioner (South) Torii Kai-nokami's view prevailed; see Jimbo 453.
106 For the discussion sparked by Town Commissioner Torii Kai-no-kami in bureaucratic circles in
Edo in 1843, see Tokugawa jidai minji kanreishu, dosan no bu: 192 Shih6 shiry6 13-32 (1935);
Wigmore III A 21-53.
107 See Fairbank 8 -9.
108 For a discussion of China's rapid population
growth from 1700 to 1850, see Ho, Studies on the Population of China, 1368 - 1953 (Cambridge,
Mass. 1959) IOI - 226.
109 Fairbank IO; Hsiao 12-19, 561-563.
110 Hsiao 5; Ch'u, Local Government 2. See also Watt I I - 22. The extent to which Chinese villages
were self-contained units is a subject of debate. For an overview of the debate see Huang 24 - 3 I.
111 Muramatsu Yuji estimates that the banner lands and imperial estates occupied only 0.54
percent of total cultivated land: idem, Shin no naimufu shoen: 12 Hitotsubashi kenkyu nempo
keizaigaku kenkyu 1II8, II (1968).
112 Murphey, The City as a Center of Change Western Europe and China: XLIV Ann.Ass.Am.
Geogr. 349-362, 353-354 (1954). Skinner's view of the city does not deny this fact, but indicates the
importance of the economy in viewing Chinese cities: idem, Cities.
113 Ho, The Ladder of Success in Imperial China (New York 1962) 77; see also Feuerwerker,
China's Early Industrialization (Cambridge, Mass. 1958) 9395, 244.
114 Murphey, The Treaty Ports and China's Modernization: Elvin and Skinner (ed.), The Chinese
City Between Two Worl&s (Stanford, Cal. 1974) 17-71, 23.
115 Fairbank 8 states that at about 1800:"... China's population was over 300 million, almost double
that of Europe including Russia, and it is safe to say that her home market and domestic trade were
also far greater than those of Europe."
116 Chinese scholars oflegal history have concentrated their efforts on criminal law and institutional
history. See e.g. the works of Ch'en; Tai, Fa-chihshih; Hsu, Chung-kuo fa-chih yen-chiu (Taipei
1975); Chang, Ch'ing-tai; idem, Fa-Iii-shih. A few Chinese historians have studied contracts, but in
most cases for the economic and social information they contain. See e.g., Fu, Shang-jen and
idem, Nungts'un. A notable exception is the Japanese scholar Niida Noboru. WESTERN scholars
have generally studied the criminal law. See e.g., Escarra(-Browne) and Bodde and Morris. Recent
scholarship on Ch'ing contract law by Americans consists mainly of the following works: Buxbaum,
Contracts; idem, Status; Cohen, The Role of Contract in Traditional Chinese Social Organization: II
Proceedings of the VIIIth Congress of
Anthropological and Ethnological Sciences (Tokyo
1968) 130-132; Chen and Myers; and Brockman. Major contributions in French and German are by
Hoang and Kroker. For collections of contracts see T8y8 Bunko; Rinji Taiwan kyCtkan ch8sakai
(ed.), ShihO; idem, Keiji. For English translations of contracts, see Chen and Myers, passim; and
Ebrey (ed.), Chinese Civilization and Society (New York 1981) 208-210, 235-236.
117 Baker, Chinese Family and Kinship (New York 1979) 49-70. For a more precise definition of
this Chinese kinship term see Ebrey and Watson (ed.), Kinship Organization in Late Imperial China
IOOO - 1940 (Berkeley 1986) 5 and 8.
118 Baker (preceding note) 13 6 and 154; Freedman, Chinese Lineage and Society (London 1966)
5 - 6;idem, Lineage Organization in Southeastern China (London 1965) 1-2. For a discussion on the
possible reasons for this difference, see Rawski, The Ma Landlords of Yang-chua-kou in late Ch'ing
and Republican China: Ebrey and Watson (ed.) (preceding note) 266-267 and Huang 234-235.
119 Hsiao 261 -271; Ch'u, Local Government 180-185; see also Cohen, Chinese Mediation on the
Eve of Modernization: 54 CaLL.Rev. 1201 - 1226 (1966) and Lubman, Mao and Mediation - Politics
and Dispute Resolution in Communist China: 55 ibidem 1289-1300 (1967).
120 Baker (supra n. 117) 64-65, II3 - II8; Hu, The Common Descent Group in China and Its
Functions (New York 1948) 53-63.
121 See e.g. the forms listed in Ch'en Chou-t'ang (ed.), Hung-shih tsung-p'u (Hangzhou 1982) 116
125. Intra-lineage transfers oEland in some areas used special contract forms; Amakai, Dozokukan
ni okeru furi baikei no kanshu: 18 Mantetsu chosa geppo no. 6, 77-119 (1938).
122 Ch'u, Law 38-40.
123 For definitions of the gentry, see Chang, The
Chinese Gentry (Seattle, Wash. 1967) 3 - 5 I and Ho (supra n. 113) 34-41. The definition adopted
here is that of Ho.
124 Ch'u, Local Government 180-185; Chang (preceding note) 50-70.
125 Hsiao 264-275; Tai, Hsiang-chih 39-40; Zelin, The Rights of Tenants in Mid-Qing SichuanA
Study of Land-Related Lawsuits in the Baxian Archives: 45 .Asian Stud. 499-526,521 (1986). See
also Huang 2}2. By the term "elders" I refer to the informal leadership of the village. Official
leadership was a function of the pao-chia or similar system (infra (5)).
126 Rinji Taiwan kyukan chOsakai (ed.), Shih6 III B 26; Hsin-chu Tan-shui Archives, doc. I I }25-2,
21202-2,21203-1,21203-3,21204-1,22IO5-4, 22209-1,22301-1,22402,22409,22503,2260I.
127 Hsiao 64-66; Sweeten, The Ti-pao's Role in Local Government as Seen in Fukien Christian
"Cases": 3 Ch'ing-shih wen-t'i no. 6, I _27 (1976); Rowe, A Note on Ti-Pao: 3 ibidem no. 8, 79_85
(1977); Saeki, Shindai no kyoyaku chiho ni tsuite-Shindai chiho gyosei hitokusari: 28 Tohogaku
91_IOO (July 1964).
128 Hsiao 64-66. 129 Idem 43-55.
130 Idem 55-67.
131 T8y8 Bunko (ed.) passim; Rinji Taiwan kyukan ch8sakai (ed.), Keijipassim; idem, Shih6 I A
180. For a discussion of different types of middlemen, see Jernigan, China in Law and Commerce
(New York 1905) 234-238.
132 See Doolittle, Social Life of the Chinese II (New York 1895) 135.
133 See Shiga, Family Property 142: Doolittle (preceding note) 137.
134 Generally, the middleman's compensation was split between the parties to the transaction.
Niida Noboru 344-345: Doolittle (supra n.132) 135: Facheng hsueh-she 38-40.
135 Chang and Ran, Ch'ing-tai fu-rung yen-ch'ang ching-ying ch'i-yeh chi-In: 4 Chung-kilo Ii-shih
powu-kuan kuan-k'an 74-81 (1982); Toa Kenkyujo,Shoji ni kansuru kanko chosa hokokusho-goko
no kenkYll (Tokyo 1944) 191 -212; Rinji Taiwan kyukan chosakai (ed.), Keiji passim; Ts'ao, Ho-hui
chih-tu chih yen-chili (Taipei 1980) 12, 25 and 35.
136 Toa Kenkyujo, Rinji Taiwan kyukan chOsakai, Ts' ao, all preceding note. See also Cohen,
House United, House Divided (New York 1976) 9- 10,193 -225.
137 Examples of these form books ar.e noted in Hayes, Specialists and Written Materials in the
Village World: johnson, Nathan and Rawski (ed.), Popular Culture in Late Imperial China (Berkeley
1985) 75III, 86-87.
138 Brockman 83 -84.
139 Idem 128 - 129.
140 See Tai, Hsiang-chih 39-4°, 162- 165.
141 Idem 145.
142 Ibidem.
143 Idem 174- 175; Ssuja hsing-cheng-pu (ed.) III. For a detailed description of these associations
shortly after the Ch'ing dynasty, see Gamble, North China Villages - Social, Political and Economic
Activities Before 1933 (Berkeley, Cal. 1963) 69-103. For examples of many other types of
cooperative agreements in the Ch'ing period see Yu, Te-i-lu (s.l., s.d.)
passim.
144 Tai, Hsiang-chih 145 - 150.
145 Idem 145-147.
146 Hsueh (ed.) '1109; Staunton 415: Phi/astre II 558-559.
147 Skinner, Introduction - Urban Development in Imperial China: idem (ed.), Imperial China 331,29-3°.
148 Ibidem.
149 Murphey (supra n. II4) 20.
150 Mote, The Transformation of Nanking: Skinner (ed.), Imperial China IOI-I53, IO2-IO3: Rowe 89.
151 Golas 555-558.
152 Idem 563; Rowe II6-119, 136-157, 171-176;Negishi, Shanghai no girudo (Tokyo 1951) 95-336.
153 Golas 577-579; Rowe 289-290,331-332.
154 Golas 570; Negishi, Chugoku no girudo (Tokyo 1953) 57-59.
155 Skinner, Introduction - Urban Social Structure in Ch'ing China: Skinner (ed.), Imperial China
538.
156 Idem 539.
157 Golas 563 - 566. In his classic study of these associations Ping-ti Ho emphasized their role in
facilitating interregional economic and social integration: idem, Chung-kilo hui-kuan-shih lun (Taipei
1966) IO2- II4. See also Naquin and Rawski, Chinese Society in the Eighteenth Century (New
Haven 1987) 46-49.
158 Elvin, The Administration of Shanghai. 1905 1914: idem and Skinner (supra n. II4) 239-262,
240242. For the role of the gentry in taxation see Mann, Local Merchants and the Chinese
Bureaucracy. 1750- 1950 (Stanford, Cal. 1987).
159 Brockman IO3 - IO4, and Rinji Taiwan kyukan chosakai (ed.), Shih6 III A 360-363. For
examples of these different types of contracts, see Toa dobunkai, S_ina shagya saran (Tokyo
1906-1907) I 142-163, V\S4-460, 464-465; idem, Shina keizai zensho IV (Osaka 1908-1909) 305412.
160 Brockman 104, and Rinji Taiwan kyukan chosakai (ed.), Shih6 III A 361 - 363.
161 Brockman II2.
162 Idem I I 5, 117, 120, 129.
163 Idem IO7-IO8, 115-117, 120. See also Niida Noboru II 336,341,362,364,369-373,553-563.
164 Van der Sprenkel, Control 618.
165 Idem 620-623. See also Rowe 74.
166 Van der Sprenkel, Control 625.
167 Parker, The Principles of Chinese Law and Equity: XLJ,North China Branch Royal Asiat.Soc.
1043, 15 (1909). See also Meadows, Land Tenure in China: Trans.China Branch Royal Asiat.Soc.
1847/48, 12. A.CD., Notes on Chinese Commercial Law: 2 China Rev. no. 3, 144-148, 144
(1873174); Escarra (-Browne) IO7; Bodde and Morris 4; Brockman 81.
168 Escarra(-Browne) 99-IO4; Bodde and Morris 34,55-60.
169 This rule would have to be true to have any reasonable sense of order in the legal system, but
there may have been exceptions to it at times, particularly in the relationship between the individual
contract and local custom, or village or lineage rules.
170 Escarra, Chinese 252; Lobingier, A Bibliographical Introduction to the Study of Chinese Law:
XLV j.NorthChinaBranchRoyaIAsiat.Soc. 110-123, 122 (1914); Alabaster, Notes 96.
171 Hsueh 265-287; Staunton 94-106; Philastre I 395-489.
172 Parker (supra n. 167) 15. He states: "There is, strictly speaking, no contract law at all except as
touches the supreme contract of marriage." Marriage has been called "the most important
contractUal relationship in Chinese society": Freedman, Rites and Duties, or Chinese Marriage
(London 1967) I 1. See also Buxbaum, Status 210. Contra see Moser, Contract and Ritual in
Traditional Marriage on Taiwan: ZvglRW 76 (1977) 179 - 194, 192. In the discussion in the text the
contract is referred to as the "betrothal" contract to distinguish it from the marriage ceremony.
173 Hsueh 291; Staunton IO7; Philastre I 49I.
174 Hsueh; Staunton; Philastre, all ibidem.
175 Hsueh 3 13; Staunton 123; Philastre I 545.
176 Hsueh 29 I; Staunton IO7; Philastre I 49 I.
177 See this Encyclopedia vol. I p. U-75.
178 Tai-wan yin-hang ching-chi yen-chiu-shih (ed.) III 442.
179 Ibidem 444.
180 See Hayes (supra n. 137) 87.
181 Ssuja hsing-cheng-pu (ed.) II 1417, 1662, 178 I. 182 Idem II 1414, 1493, 1729, 1736.
18) Idem II 1480, 1489.
184 Idem II 13°3, 13°4, 1442, 1799; Alabaster, Commentaries 172- 173.
185 Ssuja hsing-cheng-pu (ed.) II 1306, 1420.
186 Haley, The Myth of the Reluctant Litigant: 4 J-Jap.Stud. 359- 39°, 365 (1978). For Ch'ing China
see Cohen (supra n. 119) 1215-1216.
187 A number of scholars have emphasized the disincentives for litigants to bring disputes to the
magistrate or for the magistrate to hear them: Escarra (-Browne) II, 109; Kraker, The Concept of
Property in Chinese Customary Law: 7 Trans.As.Soc.japan (3d ser.) 123 - 146, 134 (Nov. 1959);
Bodde and Morris 6; Van der Sprenkel, Legal Institutions 78-79,120-123; Brockman 82; Watt 219223; and Moser, Law and Social Change in a Chinese Community (Dobbs Ferry, N.Y 1982) 22-24.
Others have challenged this view by noting evidence that disputes were in fact brought to the
magistrate: Buxbaum, Aspects; Hsiao, Compromise in Imperial China. Parerga: Occasional Papers
on China (Seattle 1979) 3-67, 65; book review Ch'u, 35 Pacific Aff. 396-397 (1962/63). See also
Van der Sprenkel, Control 613; Zelin (supra n. 125) 521-523.
188 Van der Sprenkel, Control 120.
189 Rinji Taiwan kyClkan chosakai (ed.), Shih6 III B
458-477.
190 Watt 219-220; Van del Sprenkel, Legal Institutions 69-70; idem, Control 618; Fan, Fan-shan p'ip'an (s.1. 1894-1897) passim.
191 Van del Sprenkel, Legal Institutions 122; Brockman 92-95.
192 In the 18th century in Fukien it was stated that one-half of the suits resulted from lack of clarity
in the contracts relating to transfers of land rights. Taiwan yin-hang ching-chi yen-chiu-shih (ed.) III
442. For references to significant backlogs of cases see Ocko, I'll Take it All the Way to Beijing Capital Appeals in the Qing: 47 JAsian Stud. no. 2,291-315,3°5-3°6 (1988).
193 Brockman 82-84.
194 Idem 87.
195 A leading JAPANESE scholar, Shiga Shuzo, has characterized the judgments in Ch'ing civil
procedure as "conciliation type judgments" relying on consensual undertakings of the parties
entered into at the urging of the magistrate; idem, Shiho.
196 Henderson, Conciliation I 4.
197 See von Mehren, A General View of Contract: this volume supra ch. 1 (1982) s. 28.
198 This consensual problem in its modern context has been debated, with much diversity of
opinion, in the Supreme Court of Japan: Suzuki v. Ishigaki, SUpLCt. 31 Oct. 1956, Grand Bench,
Minshii 10, 1355-1398; and Nomura v. Yamaki, SUpLCt. 6 July 1960, Grand Bench, Minshii 14,
1657- 1720, reversing Suzuki, supra, in a nine to six opinion. These opinions may be found in
English: Henderson and Haley (ed.), Law and Legal Process in Japan (Seattle, Wash. 1978) 670701. For an appraisal of both cases, see Henderson, Conciliation II 229-234. The issue was raised
whether a prewar, compulsory statutory conciliation (ch8tei) was unconstitutional as it denied the
loser access to the courts under the postwar Japanese Const. art. 32. The decision found
compulsory conciliation illegal under the statute (by the time of the decision already repealed) and
thus avoided a decision on the constitutional point, though in his dissent Justice Kawamura
Matasuke viewed the statute as unconstitutional.
199 Learned Hand in Wood & Se/ick, Inc. v. Compagnie Cenerale Transatlantique, 43 F.2d 941 at
943 (2 Cir. 1930).