On"Hanashi-Genin(_??__??__??_)"

in-connection with the law of obligation in the Edo period

Abstract

This is an essay on "Hanashi-Genin" in U-shu Murayama-gun(_??__??__??__??__??_) in the later Edo period. It was usually stipulated in the contract of "Hanashi-Genin" that the Hitonushi (_??__??_, surety, generally the father or the elder brother of the servant) might receive the Minoshi-rokin (_??__??__??_, money advanced on the security of servant's labour) from the master on making an employment contract, and might keep under himself the servant who, properly speaking, should serve the master, and that the Hitonushi might pay back the principal and interest of the Minoshirokin when the term of service was up. This contract had an appearance of the employment contract, but some social-economic historians have demonstrated that it was not the employment contract but one of the moneymaking means of the mercantile-usurious landowners. Yet no one has studied the reason why this contract had to take such a complicated form. In this paper, I have tried to explain the reason from the legal point of view.
The obligation of the Edo period was divided into "Honkuji (_??__??__??_)", "Kanekuji(_??__??__??_)", and "Nakamagoto (_??__??__??_) "-obligation. The creditor of "Honkuji"-obligation might be given various official protections but not allowed to charge any interest. On the other hand, the creditor of "Kanekuji"-obligation might be given few official protections but allowed to charge the interest. This was the reason why those who wanted both official protections and interest make a contract of "Kanekuji"-obligation under the fiction of "Honkuji"-obligation. The contract of "Hanashi-Genin" was just used for the purpose of such a evasion of the law, namely in order to disguise the loan belonged to "Kanekuji"-obligation as the employment belonged to "Honkuji"-obliga-tion. There were many evasions similar to "Hanashi-Genin" not only in Murayama-gun but all over the country.
Of course, Bakufu (_??__??_) and Hans (_??_) prohibited such evasions. With the growth of the economic activities of the mercantile-usurious landowners, however, such prohibitions began to hinder the smooth moneylending. Consequently as a result of the compromise between the feudal lords and the landowners, the practice of "Hanashi-Genin" continued to exist and be sanctioned as a sort of the contract of "Kakiire (_??__??_, institution similar to the mortgage, the debtor of which remained in possession of the property) ".