“草议”与“议单”：清代江南田宅买卖文书的订立

Draft Agreements and Documents:Concluding Property Contracts in the Jiangnan Region under the Qing

草议是指房地产交易具立正式文契前订立的文书,至迟于康熙十年即已出现,自雍正至光绪年间几乎一直存在,甚至沿用至民国时期。草议可分为条款式和契约式两种,明确交易双方的权利与义务,交代不动产转移的前提或缘由,载明不动产转移的详细事项,具备所有不动产交易文契的基本内容。草议议定的条件在房地产实际交易过程中得到了切实实行。草议不同于未经官方盖印的"白契"那样的"草契",而是买卖双方在房地产交易前由中间人及亲友等事先订立的议单式文契,在正契订立前发生效力,于正契成立后失效;订立时买方会付以预约定金;订立于买主卖主两造同意所议条件之后,作成于正式契约之前,与正契一样具有相应的法律效力,但其效力较正契为弱。草议具有预约性效力,但不表示具有不动产的所有权,而正契具有永久性效力;一般情形下,草议可悔,可以修改,而正契不能修改。

'Draft agreements'(草议 cao yi) referred to documents drawn up before a formal contract for immovable property(real property) was concluded.They were already in existence in the Jiangnan region no later than in the 10^(th) year of Emperor Kangxi's reign and were used thereafter under subsequent reigns and even into the Republican period.Unlike draft contracts such as'white deeds,' which had not been stamped with the official seal,draft agreements for the purchase or sale of land or buildings were based on negotiations involving the middleman,the buyer,the seller,and their relatives.They took effect before the conclusion of the formal contract and became invalid afterwards.The buyer would pay a deposit at the time of the agreement.The pre-contract agreement drawn up by buyer and the seller had a certain legal force,but this was weaker than that of a formal contract.A draft agreement took preliminary effect but did not show ownership,whereas a formal contract took permanent effect.It was generally possible to pull out of or revise a draft agreement,but this was not the case with a formal contract.