8. Sureties

The Minor Law Books (SBE33), by Julius Jolly, [1889], at sacred-texts.com

8. Sureties.

* 117. ¹¹⁷ The guarantee to be offered to a creditor may be twofold: a surety and a pledge. A document and (the deposition of) witnesses are the two modes of proof on which evidence is founded.

* 118. ¹¹⁸ For appearance, for payment, and for honesty, these are the three different purposes for which the three sorts of sureties have been mentioned by the sages.

* 119. ¹¹⁹ If the debtors fail to discharge the debt, or

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if they prove dishonest, the surety (for payment and for honesty) must pay the debt; and (so must the surety for appearance), if he fails to produce the debtor.

120. ¹²⁰ When there is a plurality of sureties, they shall pay each (proportionately), according to agreement. If they were bound severally, the payment shall be made (by any of them), as the creditor pleases.

* 121. ¹²¹ Twice as much as the surety, harassed by the creditor, has given (to the creditor), shall the debtor pay back to the surety.

122. ¹²² By the mode consonant with religion, by legal

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proceedings, by fraud, by the customary mode, and, fifthly, by force, a creditor may recover what he has lent.

* 123. ¹²³ A creditor who tries to recover his loan from the debtor must not be checked by the king, both for secular and religious reasons.

Footnotes

70:117 A surety and a pledge are the two sorts of guarantee for a loan on interest. Documents and witnesses are the two kinds of evidence for each of the four elements, which have to be distinguished in the law of debt, viz. the principal, the interest, the surety, and the pledge. A.

70:118 A surety for appearance is where the debtor denies the debt, and is asked to prove his denial in a court. In that case, he must produce a man, who becomes surety for the debtor's appearance at the time of the trial. A surety for payment is where the creditor, anxious to obtain a loan, produces one or several sureties, who are either jointly or severally bound. A surety for honesty is where the debtor denies having received a certain sum, or declares that he has restored it to the creditor, and is required thereupon to produce a surety for his veracity. A. Yâgñavalkya II, 53; Vishnu VI, 41.

70:119 This paragraph is intended to show that the surety for appearance and the surety for honesty are equally responsible as the p. 71 surety for payment. A. Manu VIII, 158-160; Yâgñavalkya II, 53; Vishnu VI, 41.

71:120 Where a number of sureties have promised each to pay a certain stipulated share of the debt, in case of the debtor's inability to discharge it himself, the liability of each surety does not extend beyond what has been promised by him. Where, however, all the sureties have declared their joint liability for the whole debt, the creditor may enforce payment from any one among them whom he thinks able to satisfy his demand. A. Yâgñavalkya II, 55; Vishnu VI, 42.

71:121 When, however, the surety, anxious to obtain twice the amount of the sum for which he has given security, should pay the sum to the creditor of his own accord, without being pressed to do so by the creditor, the debtor shall pay that sum only to him, and not the double sum. A. Yâgñavalkya II, 56; Vishnu VI, 43.

71:122 Identical with Manu VIII, 49. According to Asahâya, four out of the five modes of recovery of a debt are equivalent to the traditional four means of obtaining success, viz. conciliation, division (bheda), presents, and violence. Thus, 'the mode consonant with religion' means conciliation, i.e. gentle remonstrances. If these should prove of no avail, 'legal proceedings,' or 'division' (bheda), shall be resorted to, i.e. the debtor shall be threatened with a plaint in a court of justice. After that, 'presents' or 'fraud' should be adhibited, i.e. a false hope of fictitious gain shall be held out to the debtor. If this mode also should prove unsuccessful, 'force' or 'violence' p. 72 may be used, by fettering the debtor, or confining him, &c. The fifth mode, called the customary mode (âkarita), consists of fasting. If the creditor himself, or his son, or his servant, takes to fasting it is no offence; or he may confine his own son or threaten to kill him, or seize the property of a stranger, as a compensation. The commentators of the Code of Manu explain the five modes of recovery of a debt much in the same way as Asahâya. 'Fraud,' according to them, is when the creditor borrows money from the debtor under false pretences, or retains a deposit belonging to him. Vyavahâra, generally interpreted by 'legal proceedings,' means, according to Medhâtithi, engaging the debtor in agriculture, trade, or other work, and 'taking the proceeds of his labour.' The 'customary mode' (âkarita) is variously explained as denoting 'fasting,' or 'killing' or 'taking (one's own or the debtor's) family and cattle.' Under the former interpretation, it is identical with the well-known 'sitting in Dharna.' See the translations of Manu, and Jolly, Ind. Schuldrecht, § 7. For an interesting parallel to the custom of Dharna from the Brehon Laws of Ancient Ireland, see Sir H. Maine's Early History of Institutions, p. 297 foll.

72:123 A dishonest debtor who applies to the king for protection against a creditor enforcing his demand shall not be abetted by the king. 'For secular reasons,' i.e. in order not to disturb the established order of society. 'For religious reasons,' i.e. in order not to offend against religious law. A. Nearly identical with Manu VIII, 50. Vishnu VI, 19; Yâgñavalkya II, 40.