Land Sales and Land Mortgage in Middle Ages

Abstract

In recent years the subject of Tokusei (Moratorium on Debts) has become a major topic of debate, with attention focusing on the peculiarity of land-holding in Medieval Japan ; i.e. the right of original ownership (honshuken). This paper approaches this problem by comparing the sale with the pawn of land. The main points argued are as follows. The first point made is that while transfers of land ownership in the Middle Ages may be strictly divided into perpetual sales (eitai baibai) and pawn (where the mortgaged land passes into the hands of the lender for the duration of the loan, and which is called ireshichi, honsenkaeshi, and so on.), both forms of transfer are basically the same in function. However, the legal distinction between sale and pawn is valid at the level of ordinary life, but in an extraordinary situation -the prime example of this is a Tokusei Edict, but violation by a third party is another example- this distinction may disappear and a landsale may be treated as a mortgage. In such a case the original owner can assert the right of redemption. The second point made concerns the process whereby the above relation between the sale and the mortgage of land came about. As Kikuchi Yasuaki has pointed out, in ancient society the sale of land functioned as a mortgage with the right of use passing to the "buyer", but as the medieval system of landownership developed, the right of redemption was lost, and the medieval system of "perpetual sale" developed. In ancent society, pawn was not thought of as a form of mortgage, but with the rise of a new urban class of money-lending merchants, it came to be recognised as one form of mortgage. Thus sales retaining the right of redemption came to be thought of as mortgage contracts, and the legal relation between perpetual sales and mortgages, based on the distinction between whether the right of redemption was retained or not, became established sometime around the late Kamakura or Namboku Cho Period.