>>Basic principles of Vietnam's ancient laws
Tran Thi Tuyet
State and Law Research Institute
Having adhered to “nhan tri” and the nation’s traditional philosophy, Vietnamese ancient law- makers held that the conclusion and performance of contracts were activities of personal characters. Consequently, they always respected the principle of not interfering in activities of individuals if such activities did not cause social disorder and breach the nation’s fine customs and traditions.
However, this does not mean that Vietnam’s ancient laws did not mind the provisions on civil contracts. On the contrary, the ancient law makers were legally conscious of this matter. In the practical social life, contractual obligations arose and breach of contracts were frequent occurences. Due to this, they could not help preparing for penal and civil remedies and could not help interfering in some essential matters of the social and economic life (such as the contracts on purchase, sale, pledge, lease or lending of valuable assets, particularly land and field) in order to ensure the effect and feasibility of contracts and to protect the interests of contracting parties (naturally the interests of the upper classes).
Therefore, the research into ancient laws on civil contracts must be done through the research into the penal and civil remedies as well as specific provisions of civil legislation found elsewhere in legal documents or even big codes of feudal states of Vietnam. It can be realized that the ancient law provisions on civil contracts were not totally different from those of then Western countries in terms of their contents and forms. First of all, we should enquire into some basic principles of the civil contracts in Vietnamese ancient laws.
1. The principle of freedom in entering into contracts
Based on the confidence in human conducts oriented by “le” and “nghia”, the ancient laws of Vietnam respected the freedom in entering into contracts. Only when the conclusion of contracts infringed upon the nation’s fine customs and traditions or the public order did the laws intervene and was the entering into contracts restricted.
Fine customs and traditions under the ancient laws were matters related to code of behavior and morality in the family and the society as well. They were the protection of the interests of patriarchs (husbands, parents, clan chiefs...), the protection of children, elderlies and disabled persons...), the concern for the conjugal relationship. If any concluded civil contracts infringed upon these areas, they would be considered invalid.
When parents are alive, their children were not allowed to conclude contracts on purchase and sale of family assets without their parents’ consents. The laws strictly forbade and severely punished through penal measures those who signed, knew or witnessed illegal contracts while civil measures were also applied (such as the invalidation of the contracts, reestablishment of status quo) to contracts violating this philosophy of the nation.
Article 378 of Quoc Trieu Hinh Luat (the Penal Code of the Royal Court) stipulated: “Those who stealthily sell their families’ real estate while their parents are still alive shall be subject to 80 canings and two-grade demotion in rank, if they are sons, or 50 canings and one-grade demotion if they are daughters and have to return the money to the buyers and the real estates shall be returned to their parents.... Those who know this but still buy the real estate shall not have their money returned; Those who know the truth but write the contracts or act as witnesses shall be penalized with 50 whippings and one-grade demotion.”
Contrarily, Articles 377 and 379 of Quoc Trieu Hinh Luat protected the personal properties of orphans by stipulating that “widows who remarry and sell the real estate of their children shall be penalized with 50 whippings and have to return the money to the buyers and the land to their children. Those who know such but still buy it shall be penalized with 80 canings and shall not have their money returned but have to return the land to the orphans. Those who write the contracts and act as witnesses shall all be penalized with 60 canings and two-grade demotion. If both parents die, the clan chiefs may manage the real estate for the children. If the clan chiefs sell the children’s real estate without plausible reasons, they shall be penalized with 60 canings, have to return the money to the buyers, to pay a fine equal to the sum returned to the buyers for distribution to the buyers and the children who own the real estates and have to return the real estate to the orphans.”
Article 332 of Hoang Viet Luat Le (Vietnamese Court’s Laws and Practices) stipulated: A husband may marry or sell his adulterous wife to any other man except the adulterer, for it contravenes the fine customs and traditions. If the husband still marries or sells his wife to the adulterer, he and the new husband of his adulterous wife shall be penalized with 80 canings, such wife shall be returned to her parents’ and all wedding presents shall be confiscated for public funds.
The principle of freedom in entering into civil contracts was also restricted in other specific cases such as the contracts on bequeathal of feudal titles to children; the pledge of wives or daughters; usury; trafficking in honest people... (Articles 46, 95, 134, 244, 587... of Hoang Viet Luat Le).
The concept on public order under the ancient laws of Vietnam covers a range of matter wider than fine customs and traditions, which was considerd the foundation of the society and the state and needed to be strictly protected against infringement by any individuals when concluding contracts. The public order was understood from three major aspects: The protection of basic human rights; the protection of political security and social order and the protection of economic stability. Naturally, the contents of this perception should be construed within the monarchical framework.
In the feudal regime, slaves were nothing but the pariah in the society and slavery was but a penal remedy against offenders. Therefore, Vietnam’s ancient laws prohibited individuals for entering into contracts on sale and purchase of slaves.
Article 453 of Quoc Trieu Hinh Luat stipulated: Those who sell persons to work as slaves shall be subject to exile in far-flung districts; those who induce other persons and sell them to work as slaves shall be subject to one-grade lower penalty; if the patriarchs sell their relatives (particularly the youngsters), they shall be subject to a penalty heavier than that imposed on act of selling other persons and have to double the compensation to the victims.
The ancient laws of Vietnam can be cited with many cases of restricting freedom in conclusion of civil contracts, which were considered acts of infringing upon the public order, strictly prohibited and severely punished. Those who sell land to foreigners shall be beheaded (Articles 73 and 74 of Quoc Trieu Hinh Luat); those who sell weapons or explosives to foreigners shall be beheaded. If a small quantity is sold, they would be subject to exile in remote areas; those who sell materials for manufacture of weapons or smuggle foods abroad shall be subject to exile in remote areas (Articles 75 and 76 of Quoc Trieu Hinh Luat). Those who join to set up clandestine associations in order to carry out activities harmful to people shall be severely punished (Article 221 of Hoang Viet Luat Le).
Regarding the protection of economic stability, the law- makers raised the perception of public order to restrict not only the freedom to enter into contracts but also the freedom to refuse entering the contracts. For example, Article 198 of Quoc Trieu Hinh Luat stipulated: “Those who refuse to use chipped coins, ask for high sale prices, or sell goods behind closed doors shall all be subject to rank demotion or public humiliation march for three days. And all such goods shall be confiscated for public funds...”
So, the principle of freedom in entering into civil contracts was recognized by Vietnamese ancient laws, but under certain conditions in order to preserve the nation’s fine customs and traditions and protect the national independence and sovereignty.
2. The principle of voluntariness and equality in entering into civil contracts
Though not being specified in any separate law provisions in the ancient laws like the first principle mentioned above, the principle of voluntariness and equality in entering into civil contracts existed in case laws as clearly seen in the penal remedies of the ancient laws, which strictly prohibited and severely punished the conclusion of civil contracts by persons having no legal capacity or conclusion of civil contracts in deception and coercion.
It can be seen through Article 137 of Hoang Viet Luat Le that the then law-makers gave prominence to the principle of voluntariness and equality:
“If the seller and the buyer fail to reach agreement on the sale of an object and either of them relies vaingloriously on his/her status as the licensed trader or the licensed trader acts in connivance with the other traders to force the purchase or sale of such object for his/her own benefit, or traders act in connivance with licensed traders to deceitfully sell cheap things at high prices or buy valuable things at cheap prices shall be penalized with 80 canings.”
Contracts shall be invalidated if they are signed by force or threats. Articles 355, 357, 77, 584, 638... of Quoc Trieu Hinh Luat and Articles 317, 134... of Hoang Viet Luat Le cited many cases where the signing of contracts had been banned by laws. Those who force other persons to sell land to them at cheap prices, authorities and rulers in districts who harassed or treaded on the neck of people in order to borrow things from them or lend them their own things for high interests shall all be penalized with penal and civil remedies.
The principle of voluntariness and equality between the contracting parties was reflected through their agreement on not only the contents but also the forms of the contracts. Usually for the trading, borrowing, lending or exchange of things of great value (such as land, houses, cattle...), excluding movables and immovables, the contracts had to be made in writing which clearly stated the contents of obligations. For trading in common things of small value and within short periods of time..., the two parties might reach verbal agreement.
3. The principle of civil liability
When contracts were signed on the basis of freedom, voluntariness and equality, the contracting parties had naturally to respect and perform them voluntarily and to bear liability therefor. Laws would intervene only when either party failed to perform or performed improperly the committed obligations.
Vietnamese ancient laws contained many provisions compelling the involved parties to fulfill their voluntarily committed duties. Most of such provisions concern the purchase, sale or mortgage of land and fields or loans, which were the most valuable assets of people in such an agricultural society like Vietnam’s and the contracts on such assets were the most common one in Vietnam then.
Article 356 of Quoc Trieu Hinh Luat stipulated: If a peasant tills the land borrowed from another person and changed about to claim such land as his/her own, he/she shall be penalized with 60 canings and two-grade rank demotion.
Meanwhile, Article 383 of Quoc Trieu Hinh Luat forbade the sale of mortgaged land before such land was redeemed and the money was fully refunded to the mortgagee. It also stipulated: Those who encroach upon other persons’ land shall have to repay twice the area of encroached land to the latter and the law permits the writing of new land deeds suited to the post-encroachment land areas.
According to Article 384 of Quoc Trieu Hinh Luat, peasants were allowed to redeem their mortgaged land within 20 to 30 years. Those mortgagees who refuse to return land to the redeemers or force the mortgagors to redeem land against their wish shall be penalized with 60 canings. If land owners who persist to redeem their mortgaged land when the redeeming time limits have expired, they shall be subject to the same penalty with 60 canings and not be allowed to redeem their land.
On the obligations of the debtors, Article 588 of Quoc Trieu Hinh Luat said: Those who fail to repay their due debts shall be subject to canings. If they deliberately refuse to pay their debts, they shall be subject to two-grade rank demotion and make the compensation doubling the debt amount. Under the ancient laws, the creditors also had to fulfill their commitments voluntarily or compulsorily. Article 589 of Quoc Trieu Hinh Luat stated: If debts are repaid but the creditors deliberately refuse to return the deeds to the debt payers or say the deeds have been lost and do not issue the receipts to the debt payers, they shall be subject to 50 whippings and one-grade demotion. If the creditors have already issued the receipts but still use the deeds to claim their debts for the second time, they shall be penalized with 50 whippings, one-grade demotion and have to compensate the debt-repayers with a sum doubling the debt amount.
For some types of contracts of special importance, the ancient laws actively intervened in order to protect the debtors and the mortgagors against harsh conditions posed by the creditors and mortgagees when the former were in a desperate plight and had to borrow money or mortgage their property.
Regarding loan contracts, the ancient laws prescribed the maximum interest rate of 2.5%/month (according to Quoc Trieu Hinh Luat) or 3%/month (according to Hoang Viet Luat Le). Article 587 of Quoc Trieu Hinh Luat and Article 134 of Hoang Viet Luat Le also stipulated: How many years the loan term may be prolonged, the interest amount must not be equal to the principal amount. If the creditors have already collected money exceeding the prescribed levels, they shall have to return the excess amounts to the borrowers.
For land trading contracts, the ancient laws clearly distinguished the sale and the mortgage. The sold land could not be redeemed while the mortgaged land could be redeemed within 30 years. If the mortgage term was not stated in the contract, this law provision was binding on the two parties when they entered into the contract.
So, the three above-mentioned basic principles for concluding civil contracts under the ancient laws of Vietnam reflected not only the particular historical conditions of the country then but also their similarities in contents and forms with Western legislation as well as modern civil laws.-