Before commencing the discussion of the Muscovite Sudebniki, a few words must be said about two other previous Russian law codes, the Pskov Judicial Charter (120 articles compiled between 1397 and 1467) and the Novgorod Judicial Charter (42 articles compiled sometime shortly after Moscow's 1478 annexation of the republic).[190] They represent the best of north-west Russian law of the time, which was considerably more advanced than the contemporary law of Muscovy.
The Pskov Judicial Charter
The Pskov Judicial Charter had its origins in the Russkaia pravda, in laws by rulers Aleksandr (r. 1327-30, 1332-7) and Konstantin (r. 1407-14), in decrees of the popular assembly (veche) and town ruling council (gospoda), and in Pskov customary or common law. It was one of the most important sources of the Muscovite Sudebnik of 1497. In Pskov the transition from dyadic to triadic law was under way, but by no means complete. The transition was evident in the office of the 'police officer, bailiff, guard' (pristav, from the verb pristaviti - to bring, to deliver, to issue an order, to appoint), who had the obligation to investigate criminal offences. The plaintiff was expected to be with him during an investigation, when he was his assistant in prosecuting his case.[191] He represented society, the community and the political authorities who appointed him (the prince and the mayor) when he witnessed agreements, investigated criminal offences, arrested a thief or debtor to enforce appearance in court and when he served as executioner.[192]
If it is accurate to generalise that the Russkaia pravda concentrated on procedural and criminal law, then by contrast one may state in summary that the Pskov statute was concerned primarily with civil norms: contract, property, inheritance and the legal status of the peasant.
Because landownership was almost irrelevant in Kievan Rus', the Pravda hardly distinguished immoveable from moveable property. Apparently urban property conflict resolution was not deemed sufficiently significant to codify. The situation was obviously different in Pskov, where the distinction between immoveable property and moveable property was sanguine.
By the fifteenth century the hereditary estate (votchina) was well established in Pskov. The law distinguished various forms of hereditary estate on the basis of who owned it (princely, monastic, boyaral, clan) and on the basis of how it had come into being (purchase or grant from the ruler). Pskov law theoretically permitted the sale of any property, moveable or immoveable. Land, however, was rarely a commodity in late medieval and early modern Russia because members of the seller's clan had the right to inherit the estate and could buy it back almost without any restrictions. This greatly inhibited the mobilisation of land because the market was suffocated by the redemption restrictions. In Pskov a land sale contract had to specify the last date on which a seller or his heirs could redeem a hereditary estate.[193] This was a modest concession to the market, but fundamentally the interest of the clan triumphed. Even the seller himself could redeem immoveable property unless he foreswore the right to do so in his sale document. The clan also could sue for the return of land willed to outsiders without its consent. Individualism was almost unheard of anywhere in Russia until after the mid-seventeenth century, but property law was just another factor hindering the development of individualism, in this case in the interest of the clan as a collective.
From a legal economic history perspective, an interesting provision allowed the possessor and tiller of land to gain ownership of the property after four or five years. Even if an owner had written documents on such land, he lost it if he did not use it for half a decade.[194] This did not apply to forests, where written documents were supreme. The goal here was to keep agricultural land in production. If an owner failed to do so, he could lose it to someone who would. This provision was frequently resorted to in suits.
The law of Pskov strove to protect the interests of owners. A sale made while drunk was void should either seller or buyer challenge it when sober.[195]A seller had to guarantee that the item being sold was not stolen.[196] Almost astonishingly advanced was the declared right of a buyer to void the transaction if the item was defective.[197] The Russkaia pravda stated that a finder owned whatever he had found, but Pskov legislation provided for the loser to sue the finder, who had to prove that he had not stolen the item in contention.[198] This evolution made sense, because in Kiev documentation was nearly absent and unreliable oral testimony would have had to have been resorted to, whereas Pskov had a much more sophisticated legal climate with the result that the costs of protecting the rights of the owner were bearable.
The Pskov law of contract was the most sophisticated in this period. The Pravda did not know written contracts, all were oral in the presence of witnesses. Pskov, however, prohibited oral contracts for over a rouble.[199] Pskov knew four kinds of contracts: (1) Oral. (2) A written document called a zapis', a copy ofwhich was preserved in the Trinity cathedral archive. Such a document could not be disputed in court. (3) Another written document, the riadnitsa, which was a record of monies paid, loans repaid, filed in the Trinity archive. This also could not be contested. (4) Something called a doska, etymologically probably something written on a tablet or board, but by the fifteenth century a private document not filed in the Trinity archive and something which could be contested at trial.[200] None of this entered mainstream Muscovite law.
Pskov provided a generally favourable legal climate for commerce, not surprising in the most 'Western' of the cities of Rus'. Storage, pawns and loans were all protected.[201] Interest on loans (imanie) was legal and no maximum was prescribed. Disputes were to be litigated before the ruling council (gospoda) of Pskov, which is assigned judicial responsibilities in many of the other articles of the statute.[202]
Labour law was introduced in Pskov. A worker (naimit - 'hireling') explicitly had the right to claim his wages. He was a free man who entered an oral contract with his employer whom he could sue. He also could leave whenever he wanted and get paid for the work done. The worker had to announce publicly his claims against the employer.[203]
Russian inheritance law became more sophisticated in the journey from Kiev to Pskov. In the earlier period wills were oral, and they still could be in Pskov. However, while still vital or on his deathbed in the presence of witnesses, a man could give away any moveable or immoveable property to whomever he wanted and that was a legal transaction.[204] However, written testaments came to be preferred, and they could be secured by depositing a copy in the Trinity cathedral archive. When a wife who owned land died, her widower husband could keep her property until his death or remarriage, at which time it reverted to her family. The same applied for a widow. Relatives could claim the clothes of a deceased wife if the widower remarried or of a deceased husband and the widower or widow was obliged to hand them over. Neither was required to take an oath that there were no more clothes. A widow could claim her moveable property from her father-in-law or brother-in-law and they were obligated to hand it over.[205]
190
Richard Hellie, 'Russian Law From Oleg to Peter the Great', the Foreword in Kaiser's
203