The principle both in India and in Ireland was that the joint family alone could bind itself by contracts, but that these were only valid if every one of its members assented to the transaction. The head of the family was, in fact, the trusted representative of the others, and was bound by the assent of all and every one of its members; as a father and husband he had uncontrolled authority over their fortunes. This union in one person of dual functions led in practice to this, that his rights of disposing of the whole property were only disputed in the event of his acts being prejudicial to the family interests. According to the commentators of Hindu law, alienation by the head of the family was valid, provided that it was occasioned by necessity. This necessity might be construed in various ways. It was advantageous in a year of famine to sell the joint property in order to provide for the wants of the family; but it was also profitable to arrange ancestral feasts and sacrifices and give presents to the clergy who attended them. Hence endowments for the benefit of the clergy were recognized as a valid ground for alienating the family property by Hindu and ancient Celtic laws. Another cause of free gift arose when the father of a family transferred his rights to one of his near relatives, with the stipulation that he should have maintenance during life, and be sacrificed to after death. In Hindu law it was always understood that the aged were to be supported by the family, but in Irish law this is one of the four express modes of alienating the family property.

Commentators have explained that the origin of this kind of transaction lay in personal insecurity and the impossibility of finding room for the amassed supplies. If a man did not prefer transferring his property to the church on the same conditions, he had no other course open to him except to renounce in favour of one of his near relatives. If he had sons, one of them would undertake the management of the family; but if childless, he might have recourse to more distant relatives. As soon as the transferee accepted, the

VOL. XX. [NEW SERIES]

28

property passed into his hands as manager and the transferor was entitled to maintenance. This gift was conditional, and the non-performance by the son or relative of the obligation he had taken upon himself voided the contract. The father would then return to the former position of master and manager, or would enter into a similar agreement with another relative.

All the above is applicable to one of the more usual kinds of gifts in Ossetia. It is done in favour of a son or a brother, or, when both are wanting, a more distant relative takes it. The causes which give rise to it are not merely old age, but incapacity on the part of the elder to manage the household. Instead of a formal resignation, the co-parceners usually inform him of their wish, and indicate the person who should replace him. This latter in accepting the duties is bound to maintain the donor till his death, supplying him with clothing and everything he may require. If this condition be not complied with, the father has the right to displace the manager and resume his functions as master of the household. The same thing would occur when the donee or transferee has a house of his own and the donor temporarily lives with him. On returning to his own dwellingplace he takes back from his relative all the property which he had previously delivered. When this transaction took place between father and son-in-law, the latter removed to the house of the donor and was called "midgama" (i.e. inner, domestic man). But this only happened if the father had no sons and did not wish to give the property to a more distant relative. The assent of all the family was frequently asked before concluding this kind of agreement. The custom we have described is common not only in Russia, but in Styria and other countries. Wherever it is met with there is never a formal election by a family assembly of the elder, as frequently happens in Servia and generally among the Southern Slavs. It may therefore be regarded as one of those measures taken with the object of retaining the patriarchal character which at first distinguished the joint family, and to prevent its transformation into the 'artel' or the

association founded on common labour with an elective head.1

The starting-point in the history of the joint family is when all the property, both movables as well as immovables, forms a common stock, and all the personal earnings, however acquired, belong to its members its collectively. In this position of affairs the chief alone could make contracts, or, to be more accurate, no transaction affecting either the personal or real property could take place without his authority and consent. "What belongs to many," says the author of the Vivada Chintamani, "may be given with their assent." The beginnings of a joint property with reference to private acquisitions become in course of time considerably modified; the dowry of the wife passes under the absolute control of her husband; everything acquired at odd times ceases to go into the general fund. At a later period the principle is adopted that only what is acquired with the assistance of the family capital belongs rightly to the family, the remainder becoming the property of the individual. The individualization of rights over property leads to the formation of a distinct class of possessions. Yarn over and above what is required for the family remains in the hands of the spinner and her husband, spoils of war in the hands of the captor, wages belong to him who serves, rent to the lessor, etc. The wage earner, who has returned from foreign parts, does not consider himself bound to divide his earnings with the family, but expends them in the purchase of what he requires, sometimes settling on occupied land, which he is the first to cultivate, and thus becomes its owner.3 In this way immovables as well as movables become the objects of self-acquisition, and we see the earliest form of individual

1 The 'artel' is a well-known institution in St. Petersburg, Moscow, and other large cities of Russia. All the work of the foreign houses of business except merely clerical work is performed by artels. The members of these bodies are responsible one for the other, and all losses arising from the dishonesty or negligence of one of the members is payable out of the common funds. See an able pamphlet by M. Luginin, "Les Artels," written for the Cercle St. Simon in Paris.

2 Cf. Hindu Law and Usage, etc., p. 290.

3

Cf. Early Law and Custom, p. 338.

landed property. For the alienation of this allodial' land, as we may call it, there would be none of the difficulties incident to the transfer of family land, because the owner having full dominion over it may sell or give it to whomsoever he pleases, may pledge it on loan or borrow upon it without mortgaging, the mere fact of his recognized ownership being sufficient security to the creditor. The ancient codes are all in favour of the free disposition of selfacquired property by the owner, and mediæval charters and customs take the same view. Ossete law, like that of other Aryan races, draws a distinction between ancestral and selfacquired property as regards its alienation; the first is called 'afidiban' (paternal estate), the second particularly articles valued by the family, such as old swords, guns, copper kettles, are known as 'khazna,' and excluded from the number of things which may be freely alienated. Separate property is derived from personal earnings and occupatio as well as from family partition. The owner of a divided share has an unlimited power over it, and may make any kind of obligation and agreement concerning it. Proofs of this are numerous in any of the sources of ancient and mediæval law, as well as in those customs which regulate transactions of this nature among the Russian peasantry and the Balkhan and Austrian Slavs. Among the Ossetes we of course meet with the same phenomenon. The more frequent partitions which have taken place in recent years are the cause of a growing tendency to barter property in Ossetia, whether movables or immovables; at the same time, contracts multiply and become more diversified. Certain kinds of property, however, remain outside the influence of civil law, and these are not land, but movables, the caldron and hearth chain. This seems strange at first sight, but if we remember that these articles had the same relationship to the family cult as the graves had in ancient Greece and Rome, and that these latter might not be alienated, it will at once be evident why the stamp of infamy was fixed on the man in Ossetia who infringed this prohibition.

Summarizing then the peculiarities of Ossete contract law,