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 neo-Confucian 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 deci-sion 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 pro-hibited 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 consti-tutive 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-of-way, 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-man-groups (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 lump-sum 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 administra-tive; 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 docu-ment 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 "day-incourt". 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 un-manageable 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 (ti-pao); (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 agree-ments 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 self-governance 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 self-enforcement. 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 self-help 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 self-governance. 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 Native-place 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, third-party 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 match-maker 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 pri-marily 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 en-forcement 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 mer-chants, 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.), Hoseishi-gaku 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. 357-359 (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 non-justiciable 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 Kenkyu-shitsu (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 I49-255. 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 village-headman (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-no-kami'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 3-31,29-3°. 148 Ibidem. 149 Murphey (supra n. II4) 20. 150 Mote, The Transformation of Nanking: Skinner (ed.), Imperial China IOI-I53, IO2-IO3: Rowe 8-9. 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) 305-412. 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 219-223; 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'i-p'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) 670-701. 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).