18. What Has to be Done in Default of Both Witnesses And Documents

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

18. What has to be done in default of both Witnesses and Documents.

* 235. When, owing to the negligence of the creditor, both a written contract and witnesses are missing, and the opponent denies his obligation, three different methods may be adopted.

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* 236. ²³⁶ A timely reminder, argument, and, thirdly, an oath, these are the measures which a plaintiff should adopt against his adversary.

* 237. ²³⁷ He who does not refute his (adversary's) statements, though he has been reminded again and again, three, or four, or five times, may be compelled to pay the debt in consequence.

* 238. ²³⁸ If the defendant has rejected a demand (to pay), he shall aggress him with arguments relative to place, time, matter, the connexions (existing between the two parties), the amount (of the debt), the contents (of the written contract), and so forth.

* 239. ²³⁹ If arguments also are of no avail, let him cause the defendant to undergo one of the ordeals, by fire, water, proof of virtue, and so forth, (which may seem) appropriate to the place, to the season, and to the strength (of the defendant).

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240. ²⁴⁰ He whom the waters keep below the surface, and whom blazing fire does not burn, is considered to refute the charge. In the opposite case he is deemed guilty.

* 241. Proof by ordeal takes place (if an offence has been committed) in a solitary forest, at night, in the interior of a house, and in the case of a heinous offence, or denial of a deposit.

* 242. ²⁴² (Ordeals) are equally (applicable) in the case of those women, whose morality has been impeached, in cases of theft and robbery, and in all cases of denial of an obligation.

* 243. ²⁴³ Of the gods and Rishis even, the taking of oaths is recorded. Vasishtha took an oath when he was accused of having assumed the shape of an evil spirit.

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* 244. ²⁴⁴ The seven Rishis resolutely took an oath together with Indra in order to clear themselves mutually of suspicion, when each was suspected (by the rest) of having taken lotus fibres.

245. ²⁴⁵ The perpetrator of a wrong action, or of a crime, shall be let off with one half of the punishment due to his offence, if he admits the charge or if he makes his guilt known of his own accord.

246. ²⁴⁶ If, on the other hand, a criminal has cunningly concealed his crime, and is convicted of it, the members of the court of justice will not be satisfied with his conduct, and the punishment inflicted on him shall be specially heavy.

Footnotes

97:236 'A timely reminder,' timely appeals to the debtor and to the witnesses who have attested the loan. 'Argument,' arguing that the sum in dispute has been previously repaid, or the obligation acknowledged by the debtor. Thirdly, he may attack the defendant with an oath or ordeal, such as e.g. by causing him to swear by his own good actions, or to undergo the ordeal of sacred libation, &c. A. The term 'a reminder' is not correctly explained by Asahâya, as the rule under notice refers to those cases where witnesses are missing.

97:237 If a debtor has again and again been addressed by his creditor, saying, 'Thou owest me money,' and the debtor does not deny the correctness of the assertion, he shall be bound to pay the debt. Raghunandana's Vyavahâratattva.

97:238 Asahâya says that the various arguments mentioned in this verse shall be resorted to successively, arguments relative to time having to be proffered when arguments relative to place have failed, and so on.

97:239 The term sapatha denotes both an ordeal and an oath in this place, though some of the commentators deny that sapatha may have the former meaning.

98:240 If a man who is performing the ordeal by water does not rise from water, and if blazing fire, which he is holding in his hand, does not burn him, he is freed from the charge, otherwise he is deemed guilty, i.e. criminal. A. Manu VIII, 115. It does not become quite clear whether the divine tests referred to in this paragraph are identical with the ordeals by water and fire as described further on. See the translations of Manu, and Professor Stenzler's and Dr. E. Schlagintweit's papers on Ordeals in Ancient India.

98:242 Where the conduct of a woman, i.e. her morals, is called into doubt; where theft or robbery is alleged to have been committed; and where anything has been declared false, for all heavy charges in short, this rule regarding the performance of ordeals has been laid down. A.

98:243 243, 244. Manu VIII, 110.

243. The great sage Vasishtha, being suspected of being an evil spirit, took an oath, and was cleared of suspicion thus. A. The story, to which allusion is made in this place, is told by the commentators of the code of Manu. Visvâmitra accused his rival Vasishtha before King Sudâs as having eaten up his hundred sons, in the shape of a Râkshasa (malignant spirit). Vasishtha thereupon exclaimed, 'I will fall dead on the spot if I am a Râkshasa.'

99:244 The story here referred to occurs in the Purânas. The meaning is this: If the great sages even have taken oaths in order to clear themselves from suspicion, how much less should ordinary mortals refrain from taking an oath. A. According to Medhâtithi and Govindarâga, the two earliest commentators of Manu, the seven Rishis had mutually accused one another of the theft of lotus fibres. Indra took an oath when he was suspected with Ahalyâ.

99:245 One who has committed any wrong or sinful act to the detriment of any one whomsoever, or who has become guilty of robbery or other crimes, shall have to suffer one half only of the punishment ordained for his misconduct, if he acknowledges in a court of law the truth of the charge brought against himself by the injured party. The same rule obtains, if he has denounced himself guilty; though no plaint has been lodged against him. A.

99:246 If the perpetrator of a wrong act, or of robbery, &c., denies his guilt, on being examined in a court of justice, and is convicted afterwards by means of an ordeal or of another mode of proof, the assessors of the court will be incensed against and a heavy punishment inflicted on him, as e.g. he will have to pay twice as much as in ordinary cases. Here ends that section of the law of debt which consists of 'Rules for those cases where both documents and witnesses are wanting.' A.