>>Basic principles of Vietnam's ancient laws
Tran Thi Tuyet
The State and Law Research Institute
Civil contracts of various types were almost not prescribed concretely, systematically and comprehensively in separate articles and chapters of Vietnam’s ancient laws, but scatteredly and mixedly in different clauses, in different criminal remedies as well as civil measures, aimed mainly to sanction violations of the obligations already committed by the two contracting parties. There were numerous types of civil contract in Vietnam’s ancient law such as trading contracts, leasing contracts, lending contracts, pledge contracts, donation contracts, custody contracts... Yet, in such a highly agri-cultural and feudal society like Vietnam’s then, the three following types of civil contract were considered most important: the sale and purchase contract, the leasing contract and the lending contract.
1. The sale and purchase contracts
In a society based largely on the agricultural economy, land and fields, buffaloes and cows, houses... were regarded as the most important assets of high economic value. Therefore, the ancient laws of Vietnam stipulated that the purchase and sale of such assets had to be effected through contracts.
Usually there were two forms of trading such properties, namely “doan mai” (definite sale and purchase) and “dien mai” (temporary sale).
“Doan mai” was the major form of trading which appeared in the early days of the monarchical state in Vietnam during the Ly dynasty. For this, the ancient laws of Vietnam stipulated: The legal responsibility appears at the time the money is handed over. The purchaser becomes the thing’s owner immediately after he/she hands the money and the seller no longer has any interests from the sold property after he/she receives the money.
In principle, an asset sold by mode of “doan mai” contract could not be redeemed, except for ancestral worshiping land, a special type of property, which could be redeemed under the ancient laws. Article 400 of Quoc Trieu Hinh Luat (The Royal Court’s Penal Law) clearly stated: “The ancestral worshiping land must not be sold illegally despite however poor the children are. If this is denounced by any people, the children shall be charged with the crime of undutifulness. If such land is bought by a relative, his/her money shall not be refunded. If the land is bought by the outsider, the buyer must let the land be redeemed, not trying to retain it.”
The ancient law-makers also anti-cipated some specific cases in order to protect the seller’s interests. Article 87 of Hoang Viet Luat Le (Vietnam’s Royal Laws and Practices) stipulated:
“Where a land selling contract is already made and handed to the buyer, but the buyer has not yet fully paid the money, the ownership must not be considered as having transferred to the buyer and the land shall be taken back and returned to the seller.”
“Dien mai” was also a common form of trading among the population. In 1142, the legislation of the Ly dynasty stipulated that the temporarily sold land or houses could be redeemed in 20 years. This was also prescribed in many parts of the legislation of the Le and Nguyen dynasties, such as Articles 342, 383 and 384 of Quoc Trieu Hinh Luat; paragraph 314 of Hong Duc Thien Chinh Thu; Article 89 of Hoang Viet Luat Le, and many other royal decrees of Nguyen kings, under which the temporarily sold land and fields could be redeemed in 30 years.
True to its legal nature, the “dien mai” contract was but a derivative of the trading contract, which, however, allowed the sellers to redeem their sold properties within the time limit prescribed by law or inscribed in the contract. If such time limit was not specified in the contract, the seller might buy back their sold property within 30 years. That was also what it differed from the mortgage contract.
Usually, there existed among people three customary forms of temporaty sale of land:
a/ The two parties might agree in the contract on the time limit the seller could redeem his/her land. The redemptive money amount was equal to the amount the buyer had spent to buy the land. The money earned from the yields during the use of such land by the buyer was considered the interest on his/her money used for the purchase of the land.
b/ Where the contract clearly stated the time limit for redemption of the land and the seller wished to buy back his/her land before the expiry of such time limit, he/she had to refund the full amount of money received from the buyer and pay a sum of interest to be agreed upon by the two parties. If the land was redeemed after the expiry of mutually agreed time limit, the seller had to pay only the sum of money he/she had received from the buyer, not any interests thereon.
c/ Within a certain period of time agreed upon by the two parties after the temporary sale, the land would naturally be returned to the seller without any sum of redemptive money. In this case, the sale money amount was considered equivalent to the sum of money the buyer earned from yields of such piece of land.
The legislation of the Le and Nguyen dynasties defined clearly which types of land were eligible for “doan mai” or “dien mai” and which were not. The ancient laws provided that land would not be sold in the following cases where:
- It was the public land allotted for use or the rationed land (allotted under the regimes of “quan dien” (land of the army) or “loc dien” (land alloted as bonus) under the Le dynasty), as prescribed in Article 342 of Quoc Trieu Hinh Luat.
- It was the ancestral-worshiping land.
- It was the land owned by other people.
- It was stealthily sold by children without their parents’ consents.
- It was sold by widows when their children were still very young.
The ancient laws also prescribed the obligations of the seller as well as the buyer and forms of “doan mai” and “dien mai” contracts.
The seller was not allowed to “doan mai” (sell definitely) the land which had been “dien mai” (temporarily sold) to other person before it was redeemed. Those who violated this law provision would be penalized with 50 whippings and one-grade virtue demotion while the money would be returned to the “doan mai” buyer (Article 383 Quoc Trieu Hinh Luat). The Nguyen legislation regarded this illegal act as burglary (Article 89 of Hoang Viet Luat Le). After “doan mai”, the seller had to immediately hand over the land to the buyer.
The ancient laws also stipulated the date for land redemption every year, which had to be made before a new crop so as to avoid losses put up by the persons having the land redeemed if they had already started the new crop or were going to harvest the crop. Under such laws, the buyer had to fully refund the money to the seller, not to buy “dien mai” land which was yet redeemed and had to let the seller buy back his/her land as agreed upon in the contract or prescribed by law. Those buyers who deliberately refused to let the sellers redeem their land within the prescribed time limit would be subject to 80 canings, forced to let the sellers buy back their land and to pay interests for the days of late payment. Past the redemption deadline, the buyers were entitled to own the “dien mai” land for good (Article 384 of Quoc Trieu Hinh Luat).
Following are typical forms of “doan mai” (definite sale) and “dien mai” (temporary sale) contracts prescribed by ancient laws of Vietnam:
+ Form of “doan mai” contract:
I am........... and my wife, residing in village........district...….. province........, having a piece of land in area............ bordering on....…... to the West, ....... to the East,..........to the South and..…... to the North. Now being in need of money, we sell this piece of land definitely to Mr....... and his wife......., in the same village, for a sum of 3 “quan” (feudal currency unit of Vietnam, which is equivalent to one hundred former coins). When this contract is made, the two parties have had received their respective shares. This piece of land is my private property. If any fraud is detected I shall bear full responsibility therefor and the buyer has nothing to do with it.
From the date this contract is made, the buyer will receive the land for farming and bequeathal to his children as his private property.
Under the domestic laws, this contract is hereby made as the warrant.
The name of the reign’s year Hong Duc, year.…... month….... day
Signed or fingerprinted
+ Form of “dien mai” contract:
I am......... and my wife, residing in village.........district.…...., province.........., having 6 “sao” (a Vietnamese land measuring unit equivalent to 360 square metres) of land which borders on....... to the West,..…..... to the East,...….. to the South, and on........ to the North. Now being in need of money, we hereby temporarily sell this piece of land to Mr...…. and his wife, for 15 “quan”. When this contract is made, each party has received his own share. This piece of land is my private property. If any fraud is detected, I shall bear full responsibility therefor and the buyer has nothing to do with it. As from the date this contract is made, the buyer shall receive the land for farming. Within a period of 15 years, if the seller has money and requests the redemption of this land, the buyer cannot refuse.
Under the domestic laws, this contract is made as the warrant.
The name of the reign’s year Hong Duc, year....... day........., month.
Signed or fingerprinted
2. Leasing contracts
Vietnam’s ancient laws contained numerous provisions on leasing and hiring, which were, however, classified into two major types: leasing objects and hiring labor. The object leasing might include the lease of moveables (boats, farming and transport cattle...) and the lease of immoveables (mainly land and field).
For the lease of moveable property of little value such as boats, vehicles..., the contracts were usually made verbally. Particularly for moveables of great value and longer leasing terms, which were necessary for agricultural production such as buffaloes, oxen, horses... , the contracts had to be made as required by law. Such a contract had to clearly describe the animal’s shape and strength, the leasing term, price and the two parties’ liability for the leased property.
For the lease of immoveable property, mainly cultivation land, the ancient laws heeded the leasing term and the mode of dividing yields from such land. If the land area was not large and the leasing was short, usually the two parties could enter into a verbal contract. If the land or water area was large and the leasing term was many years long, the leasing contract was usually made in writing. The leasing price was fixed in money or part of the yield from such leased property, depending on the agreement reached between the two parties. When the leasing term expired and the lessee refused to return land or pond and lake, he/she would be penalized with 60 canings and two-grade virtue demotion. If the owner of the leased property presented the leasing contract, the lessee had to make a compensation to the owner, which double the value of the leased pro-perty. In case of the absence of a leasing contract, he/she had to pay the original cost only (Article 356 of Quoc Trieu Hinh Luat).
For cases of land rent being paid in farm produce, the laws provided that when the crop was harvested, the lessee had to invite the lessor to witness it. If the lessee harvested the crop at his/her own will, without informing the owner of the leased land or pond and lake thereof, he/she would be subject to 80 canings and a compensation doubling the value of the yield he/she earned therefrom. If the lessor failed to come though he/she had been informed thereof, the lessee might report such to the local mandarin before harvesting the crop (Article 361 of Quoc Trieu Hinh Luat). In case of a crop failure due to harsh weather, the laws permitted the rent cut.
Though the hiring of housemaids was practiced for long by better-off families in the feudal society of Vietnam, the contracts therefor were not prescribed by the ancient laws of the Le dynasty. Perhaps, due to the structural sustainability of the tradi-tional villages and the high cohesion of the Viet population community, and to the fact that the hiring of labor was nothing special, the relationship between the hirer and the hireling was not too complicated, the ancient law-makers did not worry about it.
Yet, under the Nguyen dynasty, the legislation started adjusting this aspect. Article 282 of Hoang Viet Luat Le emphasized: Laborers are totally different from slave-servants and must be treated like ordinary people. The hired laborers are persons who undertake to do certain work for other persons for a sum of money. When the work is completely done, they become ordinary people but not slave- servant of the employers. So, if the house masters beat and inflicted injury upon them, they shall be penalized.... The hired laborers may sit for meals together with the masters and talks to the masters on an equal footing. They must not do the work of servants. They are totally different from slave-servants from the way they talk to the way they behave towards the masters.
In that spirit, the contract for labor hiring was signed between two equal persons at their own free will. It was totally different from the contract for labor mortgage.
3. Lending contracts
Under the ancient laws of Vietnam, the lending contracts might be made verbally or in writing. If the amount of lent rice or money was not so large, the lending term was short and the creditor had trust in the debtor, the lending was often effected verbally. In cases where the amount of lent rice or money was large, the lending term was long and the creditor did not really trust the debtor, the two parties often signed a lending contract as the warrant and the lender might request the borrower to pledge or mortgage his/her property, or to have guaranty from other persons.
The laws clearly stipulated that regardless of whether it was a verbal or written contract, the debtor had to pay the interest in time as agreed upon. The interest was calculated annually and the maximum interest rate was set by laws in order to ensure the principle of volunta-riness and equality in the conclusion of lending contracts. The legislation of the Le dynasty prescribed the maximum interest rate of 30%/ year while under the Nguyen dynasty’s legislation, it was 32%/year.
When the debt turned due, the debtor had to repay his/her debt to the creditor. Article 588 of Quoc Trieu Hinh Luat stated: “Those who fail to repay their due debts shall be caned. If they deliberately refuse to repay their debts, they shall be subject to two-grade virtue demotion and a compensation doubling the value of their debts”. Meanwhile, under the Nguyen dynasty’s laws, such debtors would be penalized with 10 to 60 canings and had to fulfill all their committed obligations within three months. However, the ancient laws of Vietnam did not impose imprison-ment or death sentence on debtors just only because they could not repay their debts.
Article 590 of Quoc Trieu Hinh Luat and Article 134 of Hoang Viet Luat Le provided that the guarantor had to repay debts for the debtor if the latter was incapable of repaying his/her debt. The laws prescribed three following cases where the guarantor had to repay debt for the debtor:
a/ If the contract did not specify that the guarantor had to repay debt for the debtor while the debtor fled away, the guarantor had to pay the principal.
b/ If the contract stated clearly that the guarantor had to repay debt for the debtor, the former had to repay both the principal and the interests.
c/ Children of the debtor are regarded as the prescribed guarantors. Under the inheritance laws, children were entitled to inherit their parents’ properties; hence, when the parents were in debt, their children had to repay their parents’ debts, both the principal and the interests.
For cases of loans guaranteed with pawned or mortgaged properties, the ancient laws of Vietnam stipulated clearly:
- If the mortgaged property is a moveable, the contract is only made verbally; if it is an immovable, the contract must be made in writing.
- The ownership right over the pawned or mortgaged properties still belongs to the debtors. The creditors are entitled to own and possess them during pawning or mortgaging period. After the debtors repay their debts, the creditors naturally must return the pawned or mortgaged properties to the former who shall not have to redeem them. This totally differs from the “dien mai” (temporary sale) contract under which the ownership right belongs to the buyers till the sellers redeem their proper-ties during the time limit committed or prescribed by law. Sometimes, creditors let the borrowers till the mortgaged land provided that the yields therefrom would be shared or the interests on the loan would be paid.
- If the contract does not specify the time limit for debt repayment, the borrowers shall have to fully repay their debts within 30 years.
- If past the prescribed time limit, the debtors are still unable to repay their debts, they must sell the mortgaged properties to the creditors. And a “doan mai” (definite sale) contract shall be signed in replacement of the mortgage contract after the two parties reach agreement on the selling prices of such land or property.
- During the pawning or mortga-ging period, the creditors shall have to pay the land tax as prescribed in the contracts though the ownership right thereover during such period belongs to the debtors, because to the ancient law-makers, the land tax was levied on the yields harvested from such land.
The ancient laws of Vietnam also contained many provisions protecting the interests of the debtors and compelling the creditors to strictly fulfill their obligations when entering into contracts. This was clearly seen in the Quoc Trieu Hinh Luat.
Article 593 of Quoc Trieu Hinh Luat forbade the majority people to provide loans to people of ethnic minorities by stipulating that the violators of this provisions would be subject to two-grade virtue demotion and their loan money would be remitted into the public fund. Perhaps, the then law-makers feared that the majority people might take advantage of the simplicity and honesty of the ethnic minority people to exploit them, thus adversely affecting the national unity bloc against foreign invasion and harming the confidence of the border people of various ethnic minorities.
Article 638 of Quoc Trieu Hinh Luat forbade mandarins to borrow anything from people or to force them to borrow their own things for high interests.
Creditors were not allowed to collect interests higher than the prescribed levels or to collect interests with the amount larger than the principal regardless of how long the leasing terms might be. The creditors were also not allowed to add the interests to the principal in order to increase their loans for higher interests. (Article 587 of Quoc Trieu Hinh Luat).
The creditors had to return deeds to the debtors when the debts were fully repaid. Where the deeds were lost, the creditors had to issue a written certification of full debt repayment to the debtors. Later, if after issuing such certification they still used the deeds to reclaim their debts once more, the creditors would be subject to 50 whippings, one-grade virtue demotion and a compensation doubling the amount of debt to the debtors who had repaid such debts. (Article 589 of Quoc Trieu Hinh Luat).
When a debt turned due and the debtor could not repay his/her debt, the creditor was not allowed to seize the former’s property at his/her own will. The creditor had to report such to the mandarin and might only take a volume of property equivalent to the debt amount, otherwise he/she would be penalized with 80 canings (Article 591 of Quoc Trieu Hinh Luat). The creditor was also not allowed to detain the debtor’s wife, children and/or relatives to offset his/her debt. If doing so, he would be penalized with 100 canings, had to release the detainees and was not allowed to claim the debt amount (Article 134 of Hoang Viet Luat Le).
The ancient laws also permitted debtors to mortgage themselves or their relatives by working for creditors for given periods. The labor prices for debt deduction was determined according to types of laborers-adult or minor, male or female- and to the duration working for debt deduction, which were all agreed upon in contracts and prescribed by law, as seen in Paragraphs 56 and 306 of Hong Duc Thien Chinh Thu, Article 656 of Quoc Trieu Hinh Luat, and Article 283 of Hoang Viet Luat Le. Article 312 of Quoc Trieu Hinh Luat prohibited the mortgage of one person to many creditors, and the persons mortgaged for debt deduction through their labor had to respect their creditors; if not they would be penalized lighter than the slave-servants but heavier than the ordinary people (Article 480 of Quoc Trieu Hinh Luat).
Meanwhile, the creditors were not allowed to regard the mortgaged persons as their slave-servants and to maltreat them (Article 490 of Quoc Trieu Hinh Luat). When the debtors brought the money to repay their debts, the creditors had to return the mortgaged persons.
Studying some types of civil contract in Vietnam’s ancient laws, we come to realize that they were characterized with the introduction and inteference of legal ideologies of Oriental countries, which were, however, Vietnamized under the historical conditions of the country and bore the particular traits of the Vietnamese nation.-