Wayo (和与)
Wayo is a legal term used in ancient and medieval Japan. The term, originally meaning the gift, came to have another meaning of settlement (in a lawsuit) in the early Kamakura period and used in both meanings throughout the medieval period.
Origin of the word "wayo"
Wayo is believed to have been read in the Japanese way as "amanahi atafu (amanai ataeru)." This meant that either party provides (ataeru) to the other party, or both parties provide mutually, benefits through amanai (agreement or compromise) between the parties. Both gift and settlement discussed in this section have the nature of providing benefits through agreement or compromise, and this is probably why the term came to have the two meanings later.
Wayo as a legal term is said to be derived from the Article 32 (Article of Hishi Guzai) of Meirei-ritsu (general rule of criminal law) of the Yoro-ritsuryo Code. In this regard, Kozo HIRAYAMA sees the term as the opposite interpretation of "to take something away from someone without getting his/her consent" in the Article, while Takao NAGAMATA has a theory that the term comes from "a person who got something from someone after getting his/her consent shall be considered innocent" in the same Article. This article, however, provide not for wayo, or usual gift, but for obligation to return what was acquired through an illegal transaction (stolen goods).
"Wayo" in the sense of gift
It is believed to be after the cloister government period that the word "wayo" began to be used to mean the gift in general. "Myobojojokanroku" (A Commentary of the Ritsuryo Codes) published in the Kamakura period quotes unknown or lost writings of "Seiji Yoryaku" (Brief Outline of Government) written by KOREMUNE no Masasuke, a lawyer in the mid-Heian period (Sekkanseiji period [regency period]), which present the view that "there is almost no reason to return the territory after "kokorozashi ataeru" to others" as a general rule (prevailing theory). Although the word "kokorozashi ataeru" was used instead of wayo around that time, an idea treated as the prevailing view is similar to the principle concerning wayo in the later period that what one gives to the other as a favor (kokorozashi) cannot be restored (canceled). It is thought when lands and right of an officer governing manors were transferred as a favor in such a manner, the fact of transfer was put in writing for confirmation; nevertheless, conflicts sometimes occurred afterward over the presence of the fact. Therefore, the deed came to emphasize the fact that transfer was made as a favor upon agreement or compromise between the parties, in order to declare cancellation would not be made to the transfer. This movement was linked to the originally unrelated term, "wayo," in the Article 32 of Meirei-ritsu, and then "Hossoshiyosho" (The Essentials for the Judiciary), a collection of ritsuryo law and primary court noble law as well as theories of lawyers, stated "what was transferred based on wayo shall not be restored," which became established in society as a kind of legal maxim of the court noble law P806. However, the view stated in "Hossoshiyosho" that what was transferred in the usual manner based on agreement (i.e., "wayo" in the sense of gift) does not need to be returned contains inconsistencies with Article 32 of Meirei-ritsu which is supposed to be interpreted to mean that stolen goods obtained in an illegal way are required to be returned to the original owner even if the transfer was made upon mutual agreement between the parties. Historians are divided over whether to think such inconsistencies were due to lawyers stretching the interpretation of Meirei-ritsu to adapt it to the reality or to simply think that the decline of the study of codes and advance in hereditary learning led to lowering academic standards and loosening of the ritsuryo law itself, resulting in a situation where the original meaning of the Article was left behind and the inconsistencies were overlooked.
Wayo in the sense of gift, however, is also further divided into two main kinds. One is the gift of property made to the heir for free while the owner is still alive to achieve the same effect as inheritance and the other is the gift made to a third party other than the heir (usually, unrelated person). The latter is specifically referred to as "wayo to others." In the broad sense, donation to shrines and temples is also considered to be wayo to Shinto and Buddhist deities. For the former wayo made to the heir, theory that the transaction could not be canceled under any circumstances was once popular, but in recent years some people say the transaction could be canceled in the case where a descendant committed an unfilial act, such as violating the Descendant Decree. Either way, cancellation of wayo of the former kind was strictly limited, and cancellation of wayo to others of the latter kind was prohibited in any case. In those days when an increasing number of people made gift/donation of territories and right of governing manors, the principle of "wayo," or transfer of rights which cannot be canceled was introduced to ensure the security of title is believed to have helped to decrease the number of lawsuits about title.
"Wayo" in the sense of settlement
On the other hand, it is not necessarily clear exactly when the word "wayo" began to be used to mean the settlement in a lawsuit. But, there was already the case in which wayo, in the sense of gift, was made as a condition for or result of ending a lawsuit in the end of Heian period (e.g., wayo deed between negi [Shinto priests] of Ise-jingu Shrine regarding feudal lordship of Soma-mikuriya [private estate of Soma ranch] ["wayo deed of Akimori ARAKIDA, Gonnegi of Kotai-jingu Shrine, dated July 9, 1167" of "The Kunugi Documents" [included in "Heian Ibun" [Documents of the Heian Period] Volume 7, No. 3425]]. It is thought that based on "wayo" meaning the gift of rights under mutual agreement for settlement in a lawsuit, the word "wayo" was used to mean settlement in a lawsuit (plaintiff's withdrawal of a claim in terms of procedure) itself.
The establishment of the Kamakura bakufu (Japanese feudal government headed by a shogun) strengthened the role of wayo as a means of settling cases. Shogunal retainers who were in a master-servant relationship called "favor and service" with the Kamakura bakufu received from the bakufu the favor which in fact was the territories given, or of which the ownership is guaranteed, by the bakufu and accompanying right of an officer governing manors (refer to the Shiki System). The fact that the retainers made a living from economic rights arising from these territories led to disputes over such rights, resulting in lawsuits against the bakufu. Deployment of jito (land steward appointed by the central military government) to manors and emergence of shinpo-Jito (new estate steward for territories confiscated from the Imperial Court) after the Jokyu War further increased conflicts between a lord of the manor and shogunal retainer who served as jito or between shogunal retainers over shomu (land management) and control of territory. Consequently, in the time of the regent Yasutoki HOJO, the litigation system was implemented and "Goseibai-shikimoku" (code of conduct for samurai) was promulgated with some elements taken from the court noble law. But, the Kamakura bakufu, which was originally a military organization, had neither an adequate system for judicial machinery nor environment in which to create it, and thus had a limited capacity to handle lawsuits and imposed heavy economic burdens on both parties to a suit. As a result, many of the parties involved in lawsuits began to adopt wayo to settle lawsuits quickly, and the Kamakura bakufu also recommended, directly or indirectly, swift settlement of lawsuits through wayo, in order to handle lawsuits quickly. In this way, wayo came to be used as a means of settling and ending lawsuits.
The third party called chunin coordinates conditions for wayo in the sense of settlement during the pre-sentencing stages of a lawsuit (coordination can be made in any stage). People directly concerned with the lawsuit acted as chunin, in principle, and if both parties to a suit lived in the same area, a magnate in the area usually played the part of chunin. When both parties to a suit agreed, wayo deed to the effect that they confirmed each other's intension of agreeing concerning the suit is prepared. Through the wayo deed, the plaintiff promises the defendant to drop the lawsuit. Then, after the plaintiff and defendant sign the wayo deed in duplicate, each of them receives one copy, and the lawsuit is withdrawn, wayo is completed. But, this was the agreement called "private wayo" which was made only between the parties involved and thus was not necessarily enforceable. This means that if sentence was given before the plaintiff dropped the lawsuit, the private wayo was deemed invalid. Given this situation, the private wayo was made legally binding, provided that both the plaintiff and defendant submitted two copies of wayo deed to legal institutions (Kamakura, Rokuhara Tandai [the office of shogunal deputy in Kyoto], and Chinzei-fu [local government office in Kyushu region] in the case of the Kamakura bakufu), a magistrate in charge of the suit placed the certifying seal on the wayo deed after wayo in question was justified as a result of the examination by the legal institutions, and saikyojo (judicial decisions) and gechijo (commands) to show that contents of the wayo deed were approved were issued to the parties to the suit. Legal institutions announced the ending of the relevant suit based on the magistrate's signature affixed to the wayo deed and issuance of saikyojo and gechijo. Wayo authorized by the bakufu was assured by "the crime of violating the command" statutory principle which imposed penalties such as territory seizure on the interested party who violated wayo conditions. Any direct appeal (to a senior official without going through the normal formalities) or another suit filed later was also adjudicated based on the previous wayo deed without any change made to its contents P807. The case where chubun (division) of shitaji (land) and/or jobun (profit), such as shitaji chubun, is performed as a condition for wayo in the conflict between jito and ryoke (virtual proprietor of manor) within the manor (division into 2 or 12 parts) is specifically referred to as wayo chubun.
The ban on wayo to others and spread of wayo in lawsuits
A notable characteristic of the legislation of the Kamakura bakufu, however, was that it put restrictions on wayo in the sense of gift. "Goseibai-shikimoku" widely allowed the cancellation which had been admitted only in a very limited manner in the past, and in particular, cancellation filed by parents against their offspring based on the parental right was admitted almost without limitation. This was based on the bakufu's commitment to maintaining a soryo (heir)-led family oriented relationship among shogunal retainers and their families and retainers (soryo system) and the financial base (territories of shogunal retainers), and was intended to exclude those who disobeyed orders from soryo or parents and who got away from discipline as obstacles to service to the bakufu. It is also in this period that ichigobun, or gift that is effective only during one's lifetime, began to be performed instead of wayo. Wayo to others, however, was not allowed to be canceled by the principle of either court noble law or bukeho (the law system for the samurai society and the military government) out of fear that if permitted, cancellation of wayo to others would destabilize a transactional relationship. From the standpoint of the Kamakura bakufu, however, wayo to others could lead territories of shogunal retainers to be scattered and lost as well as cause a problem that if the fief given to shogunal retainers who had a master-servant relationship with the bakufu as onkyu (rewards from a master to a vassal) was subject to wayo to a third party who was not in the master-servant relationship, the bakufu could not claim back the onkyuchi (land awarded by the lord) in compensation for the breach of obligations, as such third party was not obliged to "serve" in exchange for the "favor." Therefore, the Kamakura bakufu issued an order banning wayo to others itself in 1268 ("Kanto Hyojo Kotogaki" [Itemized Consultation of Kanto Region] of December 26 of the same year [No. 9838 of "Kamakura Ibun" [Documents Remaining from the Kamakura Period] included in "Shinpen Tsuika" [a statute book containing laws and regulations issued by the Kamakura bakufu after the Goseibai-shikimoku]).
But due to the facts that donation to temples and shrines was not completely banned and that other forms of wayo to others were also continuously made even after the ban order was issued after all in consideration of the trade and transfer or as a collateral, the Kamakura bakufu faced difficulties in maintaining the system of gokeninyaku (duty assigned to shogunal retainers). Then the Mongol invasion attempts against Japan worsened the situation, and the Kamakura bakufu was forced to strive to maintain its structure by actively exercising official authority in cooperation with the Imperial Court. Therefore, measures were taken to quickly settle cases, including an incentive measure for wayo based on the issuance of saikyojo and gechijo at a stage before the suit and issuance of decision against one side of the suit on the ground of "refusal of summons," and Einin no Tokuseirei (a debt cancellation order) was issued to more strictly regulate wayo to others and to recover onkyuchi.
Thereafter, conflict continued between the military government which tried to prevent the outflow of onkyuchi by banning wayo to others and introducing the tokuseirei and third parties such as merchants and temples that sought to put themselves under public protection from the tokuseirei and to prepare the wording to counter it, further involving peasants who tried to regain lost land by tokusei ikki (an uprising demanding debt cancellations) in late mediaeval times. In the meantime, the legal procedure to settle lawsuits based on wayo pervaded medieval society.