A Study On The Common Law Of Vadium Mortuum Of Qing Dynasty Based On Estate Contract

Vadium mortuum originated in the Northern Qi Dynasty. At that time, it was called “tie mai”. It was initially a folk habit, after a certain time it become customary law. At the beginning of Tang Dynasty, people followed the legal systems of the Southern an Northern Dynasties, and the average-land system prevailed. As a result,the legitimacy of the vadium mortuum was shaken. From the middle of the Tang Dynasty, the average-land system collapsed, and the land circulation was unstoppable. People pawn their fields more and more often so the government gradually liberalized the restrictions. In the Song Dynasty, folk economy prospered and agriculture, commerce, handicrafts flourished. The government did not restrict land annexation, so the need of pawning of the field was very strong. In view of this,the government the submitted” the Song Code” to regulate it. This was considered the beginning of the culture of vadium mortuum. Vadium mortuum was more developed in Yuan Dynasty, the regulations were rather sound. In Ming and Qing Dynasty, the vadium mortuum finally became law.The estate contracts consisted three kinds: firstly, there are “origin contract”and “transfer contract” as the parties were different; secondly, there are “Tiandi contract” and ”Tianmian contract” as the subject matters were different; thirdly,there are “red contract” and “white contract” as the parties paid the tax or not. The diversification of the estate contracts reflects the diversification of the transactions and mortgages in Qing Dynasty. Studying the The Contract in Chinese Assembly,Economy Contract Documents of Ming and Qing Dynasty, and combined with Research on Civil Customary, the author finds out that there were plenty of vadium mortuum habit in Qing Dynasty, which were not adapted by the State Law, such as the right of preemption, multiple ownership, demand for gap price and redemption without deadline.The right of preemption originated in Middle and Late Tang Dynasty, which was folk habit at that time. It was often misused in Qing Dynasty, so it was notsupported by the government. But studying the estate contracts, it is not difficult to find out that the right of preemption remained among the people. This is because that the right of preemption helps to maintain the patriarchal order and the basic functions of the family-based and mutually beneficial development system.Keywords: Vadium mortuum;Habit of vadium mortuum; the right of preemption;multiple ownership; redemption; gap price.“Redemption” and “Looking for a gap price” is both the character and the weakness of the vadium mortuum. Studying the estate contracts of Qing Dynasty,the author finds out that the way the state law on the price, frequency, time limit was relative stiff, yet in the folk habit, the specific operations were rather flexible. Also this mechanism also refuted the “Inefficiency Theory”, “Unfairness Theory” and the“Dispute Breeding Theory”.Multiple ownership was a folk habit on the basis of permanent tenancy.Multiple ownership was strictly prohibited in Qing Dynasty. But through a lot of researches, the author finds out that there were a lot of subsoil and surfaces in the estate contracts. The reason why multiple ownership gained its popularity is that it can compensate the state law and loose the personal dependency of the land.Another reason is that the self-organization of rural area supported the multiple ownership.