法制史研究
Online ISSN : 1883-5562
Print ISSN : 0441-2508
ISSN-L : 0441-2508
中国賣買法の沿革
仁井田 陞
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ジャーナル フリー

1951 年 1951 巻 1 号 p. 47-95,en2

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The monograph describes the history of sales contract in China from about the second century B. C. up till the recent years. References were made to the old bills of sale discovered by Stein, Pelliot and Hedin at Tung-huang and Chü-yen, as well as to the latest data accumulated by Japnese scholars through an on-the-spot investigation of the Chinese legal practices.
Until the later days of the Ch'ing dynasty, movable properties were sold against cash payment and.plots of land were transacted in contract re and it.was only in the, modern times that the contract consensu came into practice.
The monogrph also describes how the contracts became effective and how the transaction was conducted. The explanation on the sales of real estate, slaves and cattles are separated from that on the sales of ordinary movable properties, because in the former case compliance with certain formulae was legally required and in the latter case not.
Earnest money was deposited for the purpose of securing fulfilment of the obligation but later it enabled one of the parties concerned to cancel the sales contract, though of course the earnest money was seized by the other party in that case.
The Chinese word "Chüeh-mai _??__??_" (sale) gives the impression as if no condition was attached to sales contracts. But sometimes the deeds of "Chüeh-mai " contained the clause for redemption. And it was a common practice for the seller'to ask the buyer to pay additional money after the full payment was made. This fact indicates that legal relation between the 'buyer and the seller was not established once and, for all but that it was unstable and unsettled. Sales with a clause for redemption were not distinguished from the pledge contract. It was only in the modern times that the difference between a pledge contract and sales with a clause for redemption was brought to clear consciousness.
Various kinds of compensation were promised by the parties of a sales contract in clauses attached to the bill of sales. The compensation was intended for such cases as one of the parties failed to fulfill his obligation or the property sold belonged to the third party. The wording of these clauses became more and more complicated as the history proceeds. This development is connected with the fact that the Chinese people could not rely on the power of the Government to safeguard their right. Much light will be cast on the custom of lao-ch'i _??__??_ (title-deeds) and of requiring a witness or witnesses in concluding a sales contract, if they are viewed from this angle.

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