明清中国房地买卖俗例中的习惯权利——以“叹契”为中心的考察

在明清中国围绕民间房地买卖而生发的契约实践中,至少在江南地区的不少地方,曾存在着一类当时通常被称为"叹契"的独特契约形式。这类契约尽管在具体名称上各地稍有差异,但其共同的特征在于,卖主将房地绝卖于他人之后,仍可再向买主索要俗称"叹价"的经济补偿。此类体现绝卖不绝之特征的"叹契",往往构成当时江南地区不少地方的房地买卖全过程之内在组成部分。本文不仅通过对新史料的挖掘与运用,以及与学界已有的研究成果进行对话,就叹契这一契约类型展开讨论,并且还主要借助于欧根.埃利希的一对概念,从法律社会学的角度,对明清时期建立在诸如叹价诉求之类的"不确定的习惯权利"基础上的社会秩序藉以维系数百年之久的司法机制加以探讨。

Customary Right in the Popular Practice of Sales of House and Land during the Ming and Qing China: A Study Centering on the Lamentation Contract

There existed,at least in the Jiangnan region(south of Yangtze River),a unique kind of contract called "lamentation contract(tanqi)" used in the contractual practices of sale of house and land in the Ming and Qing dynasties.Although the specific names of such kind of contract didn’t appear identically in different locations,they shared a common characteristic in the meaning that the seller could ask the buyer for an extra payment known as "lamentation price(tanjia)" even though he had absolutely sold his house or land to the buyer by writing a contract for ostensibly permanent sale of property before.Such "lamentation contract" that symbolized the ostensibly absolute sale was not absolute sale indeed constituted an integral part of the whole processes of sale of house and land in many places of Jiangnan region.This paper aims not only to discuss the lamentation contract comprehensively by engaging in dialogue with the related research and discovering and using new historical materials,but also to explore,from the perspective of legal sociology with the aid of two concepts put forwards by Eugen Ehrlich,the mechanism with which the social order based on the "customary rights of uncertainty" such as the seeking of lamentation price was maintained for hundreds of years during the Ming and Qing dynasties.