Dear all,
A quick follow-up note with a couple of typos corrected in the passages I cited (for those who care, see below) plus some further references to Sanskrit sources from Ludwig Sternbach,
Juridical Studies in Ancient Indian Law, Part I (MLBD, 1965), pp. 55–58:
9 Vis Major
A. There existed praesumptio juris ac de jure that the depositary
was always responsible for the loss, destruction, or damage
of the object deposited i.e., that he did not exercise the
diligentia
quam suis rebus. Only if the loss, destruction, or damage were
caused by vis major this
praesumptio had not to be applied. This
is clear from Kāty (593) wher[e] we read:
nikṣiptam yasya yat kiṃcit tat prayatnena pālayet,
daiva-rāja-kṛtād anyo vināśas tasya kīrtyate
(Also quoted in SC 179, VyPr 282, VyS 87)
The non-responsibility on the part of the depositary in
case of loss, destruction, or damage of the object deposited
caused by vis major was very clearly regulated in Y (2.66).
We read there na dāpyo 'pahṛtaṃ taṃ tu rāja-daivika-taskaraiḥ
(Also quoted m ViR ad Y 2.68, SC 179, VRK 88,
NrP 24, SV 266, VyPr 281, VyU 80, VyM 85, VT 558,
VyS 87, AP 254.26)
We find here the most typical examples of
vis major, i.e.
the act of king (rājā), the act of God destiny, fate (daiva, deva),
and the act of thieves ( taskara). Every plundering, by the
forces of a king (foreign king), etc.—was an act of king, every
cataclysm (caused by water, fire, etc.)—was an act of God,
and every loss caused by the act of men (robbers, thieves)—
as an act of thieves.
Some sources of law, such as N (II.9), Brh (XII.10)
and Katy, (593/4 ), enumerate as
vis major rājadaiva only,
others, such as Mn (VIII.189) and almost identically N (XII.12)
mention stealing by thieves (caura), destruction of
things by water (jala) or burning by fire (agni). Certainly
this, rather casuistic, enumeration, is Identical with that quoted
above. The most casuistic enumeration of
vis major is
found in K ( 177/ 13–17) were we read "Whenever forts,
or country parts are destroyed by enemies, or wild tribes,
whenever villagers, merchants, 01 herds of cattle are subjected
to the inroads of invaders, whenever the kingdom Itself is destroyed,
whenever extensive fires or floods bring about entire
destruction of v1llages or partly destroy Immovable properties,
movable properties having been rescued before, whenever
the spread of fire, or rush of floods is so sudden that even movable
properties could not be removed, or whenever a ship
laden with commodities is either sunk or plundered (by
pirates), deposits lost in any of the above ways shall not be
reclaimed.” In reality it was not a casuistic enumeration
of cases of vis major, but rather an interpretation of
rājadaiva. [etc.]
Best,
Tim
From: INDOLOGY <indology-bounces@list.indology.info> on behalf of INDOLOGY <indology@list.indology.info>
Reply-To: "Lubin, Tim" <LubinT@wlu.edu>
Date: Wednesday, October 14, 2020 at 6:42 PM
To: Johannes Bronkhorst <johannes.bronkhorst@unil.ch>, Madhav Deshpande <mmdesh@umich.edu>
Cc: INDOLOGY <indology@list.indology.info>
Subject: Re: [INDOLOGY] Six calamities
Dear Madhav, Johannes, et al.
Fire is indeed included (alongside flood/water) as a disaster or (from the point of view of property loss) an “act of God” or “force majeure.” Thus the
Arthaśāstra 4.3.1–2: [1] daivāny aṣṭau mahābhayāni: agnir udakaṃ vyādhir durbhikṣaṃ mūṣikā vyālāḥ sarpā rakṣāṃsi, iti. [2] tebhyo janapadaṃ rakṣet.
“1. There are eight great dangers arising from fate: fire, water, disease, famine, rats, vicious animals, snakes, and demons. 2 He [the king? or his Collector (samāhartṛ]?] should protect the countryside from these.” (trans. Olivelle
2013: 228; see his note on p. 629).”
I seem to recall similar lists in the Nīti literature, though I cannot lay my hand on a particular passage at the moment.
But this sort of list has been received in the Javanese tradition. For example, a manuscript entitled
Aṣṭādaśa Vyavahāra (Perpustakaan Nasional, Jakarta, L. 882) quotes a Sanskrit stanza:
deśabhaṅgabhāyāt tyaktaṃ kr̥taṃ [read: hr̥taṃ] taskarapārthivai[ḥ] |
agnidagdhaṃ jalanodaṁ pañcasadaraṇaṃ smr̥taṃ || ff. 2v2–3 [read: …
pañcasādhāraṇaṃ…]
What is abandoned from fear of destruction of the country, what is seized by thief or prince, what is burnt by fire, [or] what is carried off by water — this is known as “the five common [perils].”
This is glossed in Old Javanese prose (ff. 2v3–3r1):
ka[liṅanya], dr̥vya ikaṅ saṅkeṅ rundahniṅ deśa, kanimitan praṅ katiṅgal ikaṅ deśadr̥vya, tinitipakən salviranya, paśu kunaṁ, dr̥vya pinet iṅ taskāra maliṅ, dr̥vya pinet de saṅ prabhū, katunv iṅ apūy, dr̥vya keli riṅ ve, kahələm kunaṅ,
ika ta sahacihna, tan yogya katəmpuhanā riṁ panaṅgapi, titipan kaləbu riṅ pañcasadharaṇa, ṅa[ranya].
This means: Property that, on account of disorder in the locality, because of war, is abandoned, property of the locality of all types that is placed in trust, or cattle; property taken by a robber [or] thief, property taken by the king,
[property] burnt by fire, property carried off by water or sunken — for things with these characteristics the receiver should not be liable; it is called “a deposit sunk in the five common [perils].”
This classification gets applied in Old Javanese prose format to entrusted goods at various points in the famous lawbook (14th c.-ish?) edited by Jonker (1885):
Kuṭāra Mānava 8 :
dṛve titipan, yen pinet denira saṅ amava bhūmi, yen coloṅən deniṅ maliṅ, yen bahakən deniṅ voṅ, yen katunon, yen keliya riṅ bañu, yen hilaṅa katahurag deniṅ guṅiṅ praṅ, tan vənaṅ iku palakunən denikaṅ atitip, apan kapañcasādhāraṇa arane.
[In the case of] property that has been put on deposit — if it is taken by the ruler, if it be stolen by a thief, if it be robbed by someone, if it is burnt up (katunon) [or] if it be carried away by water, if it disappear by being
scattered in the heat of war — if the depositor asks for it back, he or she has no entitlement [to it], for these are known as “the five common [perils]”
KM 211: riṅ titipan katiṅgal, akāraṇa deniṅ deśa rusak binabak deniṅ voṅ, geger deniṅ ratu apraṅ paḍa ratu, iṅalap iṅ maliṅ, katunon , keli riṅ bañu, tan paṅəlenana kaṅ tinitipan yen maṅkana, pan kapañcasādhāraṇa arane, liṅira
saṅ paṇḍita vruh iṅ āgama.
Regarding a deposit abandoned because of a village destroyed [and] plundered by men, [lost] in tumult on account of a king at war with kings, taken by a thief, burnt up, carried off by water, what was deposited need not be replaced if it
is so, for these are known as “the five common [perils]” according to scholars knowledgeable in scripture.
Likewise KM 95. Cf. Kātyāyana Smṛti 178, 601 and Bṛhaspati Sm. 11.4 for other Sanskrit parallels.
Best,
Tim
Timothy Lubin
Jessie Ball duPont Professor of Religion and Adjunct Professor of Law
204 Tucker Hall
Washington and Lee University
Lexington, Virginia 24450
American Council of Learned Societies fellow, 2020–21
National Endowment for the Humanities fellow, 2020–21
https://lubin.academic.wlu.edu/
http://wlu.academia.edu/TimothyLubin
https://ssrn.com/author=930949
https://dharma.hypotheses.org/people/lubin-timothy
From: INDOLOGY <indology-bounces@list.indology.info> on behalf of INDOLOGY <indology@list.indology.info>
Reply-To: Johannes Bronkhorst <johannes.bronkhorst@unil.ch>
Date: Wednesday, October 14, 2020 at 3:09 PM
To: Madhav Deshpande <mmdesh@umich.edu>
Cc: INDOLOGY <indology@list.indology.info>
Subject: Re: [INDOLOGY] Six calamities
I raise a similar question about the sparsity of epidemics in early literature, in “Plagues and Brahmins” (Zysk felicitation volume, Brill 2021; has just come out).
Johannes Bronkhorst
On 14 Oct 2020, at 19:58, Madhav Deshpande via INDOLOGY <indology@list.indology.info> wrote:
Having experienced terrifying wildfires in California, I wonder why this list of ईतिs did not include something like दावानल. Were such wildfires not that common in ancient India?
Madhav M. Deshpande
Professor Emeritus, Sanskrit and Linguistics
University of Michigan, Ann Arbor, Michigan, USA
Senior Fellow, Oxford Center for Hindu Studies
[Residence: Campbell, California, USA]
On Wed, Oct 14, 2020 at 9:47 AM Christophe Vielle via INDOLOGY <indology@list.indology.info> wrote:
Thank you much, dear Peter, for the reference.
Now I can add the following article by F. Wilhelm in IT, precisely on the topic ("Calamities - a dharma problem?) :
Anyway, the śloka below (also quoted in a commentary to the final stanza of Mālavikāgnimitra, according to Wilhelm) must be earlier than its occurrence in the Kṛtyakalpataru and Vīramitrodaya digests.
bw
Christophe
Le 14 oct. 2020 à 12:05, Peter Wyzlic via INDOLOGY <indology@list.indology.info> a écrit :
Am 14.10.2020 um 11:42 schrieb Christophe Vielle via INDOLOGY:
From which (nīti?)śāstra
could come the following śloka about the six 'īti' :
ativṛṣṭir anāvṛṣṭir mūṣikāḥ śalabhāḥ śukāḥ |
pratyāsannāś ca rājānaḥ ṣaḍ eta ītayaḥ smṛtāḥ ||
PW gives a slightly different version with a reference to Parāśara, according to the Śabdakalpadruma
ativṛṣṭir anāvṛṣṭiḥ śalabhā mūṣikāḥ khagāḥ
pratyāsannāś ca rājānaḥ ṣaḍ eta ītayaḥ smṛtāḥ .. Parāśara im Śkdr.
Hartmut Scharfe in his "The State in Indian Tradition" (Leiden: Brill, 1989, p. 69) refers to Kṛtyakalpataru and Vīramitrodaya. In this list we find: deluge, drought, rats, locusts, parrots and kings that are too near [to their subjects] (and thus able to satisfy their greed). He refers, too, to an older list of calamities in the Arthaśāstra.
Hope it helps,
Peter Wyzlic
--Universität BonnInstitut für Orient- und AsienwissenschaftenBibliothekBrühler Str. 7D-53119 BonnTel.: 0228/73-62436_______________________________________________
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