gift. When we are told that “A has given B such and such things,” we do
not know the ground of the gift. “To give for money,” _nadânu ana kaspi_,
is the usual expression for “to sell.” In the older documents _šarâḳu_,
“to present,” often occurs, but has in most cases the derived technical
sense “to dower,” or “give a marriage-portion.” Hence, we are not able to
judge whether what appears as “gift” may not really be “a sale,” or some
payment meant to complete the portioning off of a daughter, on marriage or
taking vows.
(M541) There are, however, a large number of deeds of gift which have
reached us from the Second Babylonian Empire. The characteristic formula
may be taken to be _ina ḫûd libbišu iknukma pâni ušadgil_, “in the joy of
his heart (_i.e._, of his own free will, implying that no consideration
was taken _per contra_) he has sealed and placed at the disposal of.” As a
rule, we may suspect these to be “gifts” to which the recipient had a
right. Thus, mother to son,(564) brother to sister,(565) man to wife and
daughter,(566) mother to daughter,(567) are not free from suspicion. But
when a man gives maintenance to wife and son,(568) brother gives dower to
sister,(569) father-in-law gives son-in-law arrears of his daughter’s
dower,(570) and wherever there is a hint that the “gift” was a _nudunnû_,
or a _šeriḳtu_, we may regard the case as not properly “donation,” but
“dower.”
(M542) The following example shows the limitations on free gift that still
remained in later times.(571) Zêrûtu had married and had a son,
Shâpik-zêri. Then he had an intrigue with Nasikâtum, daughter of the
Sealand scribe, who bore him a son, Balâṭu. He gave Balâṭu a house, but
did not adopt him. After Zêrûtu died, Shâpik-zêri demanded the house as
his father’s heir. The judges gave it to him and also the deed of gift.
(M543) The dedication of land to a temple or of a child to the service of
a god may be considered as examples of free gift; but they are of a nature
deserving separate consideration. We have already noticed some cases of
such donations by the kings. We know from the Code that a father might
dedicate a child as a votary,(572) and he might portion that child; but
this did not bring a free gift to the temple, for the family had the
reversion of the votary’s property.
As a further example of dedication by a private owner, we may take the
following:(573)
(M544)
As temple of the god Lugalla (the king) and his consort Shullat,
Nûr-ilishu, son of Bêl-nada, has dedicated to his god one _SAR_ of
improved land, for his life (salvation), has devoted it to his
god. Pî-sha-Shamash shall be the priest of the temple. Nûr-ilishu
shall lay no claim to the priesthood. The curse of Shamash and of
Sumulâ-ilu be on him who disputes the settlement. Seven witnesses.
This is total alienation. The donor is not making an indirect provision
for himself, but waives all claims to be the chief priest of the temple.
(M545) Here is an example of a dedication of children:(574)
Tablet of Ishtar-ummi and Aḫatâni, daughters of Innabatum.
Innabatum, daughter of Bur-Sin, has dedicated them to Shamash. As
long as Innabatum lives, Ishtar-ummi and Aḫatâni shall support
her, and after Innabatum, their mother [is dead], no one among her
sons, their brothers, shall have any claim on them for anything
whatever. They have sworn by Shamash, Malkat, Marduk, and
Apil-Sin. Fifteen witnesses (of whom the first two are probably
the brothers, the rest females, probably all votaries of Shamash
and members of the convent.)
In another case, a mother dedicates her son to Shamash,(575) with the
stipulation that the son shall support her as long as she lives.
(M546) In Assyrian times we have an example(576) of a dedication of a son
to Ninip, by his mother, with consent of her brothers and their sons. A
father also dedicates his son to Ninip(577) for the well-being of
Ashurbânipal, King of Assyria. This is interesting as showing that the
dedicator acquired merit, which he could transfer to another. Both tablets
are defective. In another case, Aḫi-dalli, the lady governor of one
quarter of Nineveh, purchases a large estate and presents it to some god
“for the health of the king.”(578) Votive tablets giving the presentation
of various articles to some god are common enough at all periods.
(M547) Testamentary devolution of property was not the rule in Assyria or
Babylonia, where the law of inheritance was so firmly fixed that it would
be naturally illegal. As a rule, children did not inherit under their
fathers’ will, but by right. However, the Code allows a father to give his
married or vowed daughter power to leave her property as she will,(579)
and it is probable that he had the same power over at least some of his
property. The very frequent cases of adoption, where the adopted child
becomes heir, on condition of supporting the parent as long as he lives,
and the cases of gift _retento usufructu_, are a sort of testamentary
disposition of property.
This developed with time into something very like testament. But we always
have to bear in mind that conditions may have been understood which are
not actually expressed.
(M548) Some examples from later Babylonian times will serve to illustrate
how near these transactions came to testament. A very interesting case is
where a son, probably childless, if not unmarried, and perhaps not in good
health, gives his father his property. The document is very involved, but
the chief points are these: A married B and they had a daughter C, who
married D. The son of C and D is the testator. He leaves to his father D
all the property which he inherited from A and B, which they had left to
their daughter’s son. It consisted of a house, fields, and slaves. He
leaves it to his father “forever,” only he is to retain the enjoyment of
it as long as he lives. He therefore expects his father to survive
him.(580)
Here is another interesting example:(581)
The division which A made with his sons B and C. The benefice of
dagger-bearer (official slaughterer) in the Ishḫara temple he
assigns to B. The benefice of the shrine of Papsukal in the temple
of Bêlit-shami-erṣiti, situated on the bank of the canal, and the
sown corn-field on the Dubanîtu canal he gave to his younger son
C. All his property out in business he assigned to his mother and
his two sisters. Certain dates in the possession of two of his
debtors he gave to his two sisters. A fugitive slave, not yet
recovered, to his mother and sisters. The house, which by a former
deed he had given to his mother and sisters, shall be theirs
according to the former deed. As long as his mother lives, she
shall enjoy the property formerly assigned her. The benefice of
the dagger-bearership in the temple of Ishḫara, which he had
formerly assigned to his mother, she has freely intrusted to his
son B. As long as she lives, B and C shall live in the house with
her. The income of his mother his sons shall enjoy with her. She
shall give marriage-portions to his sisters, her daughters, from
her own marriage-portion.
This is very like a last will and testament. The man clearly expected to
die shortly. He had married and had two sons, but seems to have lost his
wife. He had evidently brought his mother and sisters to live with him. He
provides for his sons, his mother, and sisters. Evidently his mother is
the guardian of the boys. She is expected to leave the boys all the
property that was his and to dower the sisters from her own fortune.
XXII. Sales
(M549) Alienation of property in perpetuity was a matter for serious
consideration, where all property was as much that of the family as of the
individual. A change of ownership, particularly in the case of land or
house, also directly concerned the neighbors. Hence the deeds of sale are
imposing documents. Whether the object sold was a piece of land, a house,
or a slave, the same general treatment was accorded to it.
(M550) There were the same formalities as in all deeds. First the
purchaser approached the vendor and there was an interchange of ideas,
often through a third party, prolonged over a considerable space of time.
When etiquette had been satisfied and all the preliminary haggling was
over, the parties agreed upon a scribe, who was made acquainted with the
terms of the sale, already verbally agreed upon, and he set down in the
imperishable clay the legal instrument which should bind the parties to
their contract forever.
(M551) Undoubtedly both parties took a copy, and it seems clear that a
third was deposited in the temple archives as a sort of registration of
title. It seems probable that each party sealed the copy held by the
other, but this surmise awaits confirmation. As a rule, the same seal
seems to have been used for all copies, and the witnesses in early times
also affixed their seals. A more exhaustive study must be made before this
can be regarded as certain. Even where duplicates exist in our museums, it
has been usual to publish only one.
(M552) As a rule, the scribe followed a very definite plan. First he made
clear the identity of the property. This was the specification. In the
case of land, neighbors were set down, boundaries given, in some cases the
size of the plot. In each sale the specification is very important. The
personal identity of the parties was usually sufficiently fixed by
appending to their names those of their fathers. In many cases, the office
or rank held by a party is added. Occasionally the name of the
grandfather, or clan-father is added. When either party was a stranger,
his nationality, or city, or tribe, is given. As a rule, the same
information is attached to the names of witnesses. These notes of personal
identity are very valuable, for they furnish means for reconstructing long
genealogies, and they throw much light on the intercourse of varied
peoples. Babylonia seems always to have had a very mixed population.
(M553) Having made it impossible for any mistake to arise as to the
property sold or the parties concerned, the scribe proceeded to guard
against errors regarding the nature of the transaction. The house or other
property “was sold,” “the money paid,” “in full,” and so on. Then he
sought to make it clear that there could be no withdrawal from the
bargain, nor after-claims raised. There was danger that the family might
put in a claim to the property. An illustration of this is a suit brought
to reclaim a house sold, which was the claimant’s reversion—an actual
redemption of ancestral property. From such perils the buyer was protected
by heavy penalties on the seller, who in fact engaged to indemnify him.
(M554) These and many other complicated questions must have long been the
subject of consideration in Babylonian legal circles. As a consequence,
the scribe usually drew up the deed, in set terms, with a formula
consecrated by long use, every turn of which was important.
The following is a good example of the way a scribe drew up a deed of
sale:(582)
(M555)
Tappum, son of Iarbi-ilu, “has bought two _GAN_ of field, in the
Isle, next to the field of Ḥasri-kuttim, and the field of
Sin-abushu, son of Ubar-Ishtar, from Salatum, daughter of Apilia,
the _GI-A-GI_ (?) and has paid its full price in silver. The
business is completed, the contract is valid, his heart is
content. In future, man with man, neither shall take exception. By
the name of Shamash, Marduk, Sin-mubaliṭ and the city of Sippara,
they swore.”
Then follows a list of about twenty witnesses, the names of whose fathers
are also given. Usually the date is added. Here, however, it is either
omitted or has been lost.
(M556) In this particular case the words within quotation marks are
written in Sumerian. The variations are slight as a rule, but enough to
show that the scribe understood what he wrote and could make correct
changes when needful. The use of such a large amount of Sumerian in these
deeds, along with Semitic names and specifications, has often been
compared to the retention of Latin words in the body of legal documents in
European countries, almost to the present day. It will be noted that this
portion constitutes the formal body of the document, and might well have
been kept ready written, blanks being left to fill in the names and
specifications. It is not, however, easy to find proof that this was done
in early times.
(M557) Somewhat later, in the time of the First Dynasty, a number of these
Sumerian words and expressions are replaced by their Semitic equivalent.
Indeed, some deeds are Semitic only. We can by comparison make a fairly
complete study of Sumerian legal terms. To some extent this was already
done by the scribes who drew up the series of phrase-books called _ana
ittišu_. But many new forms occur in these deeds.
(M558) To translate all the contract-tablets would be useless, for all the
deeds of sale are exactly alike, except the names of parties, witness, or
neighbors, and the specification of the property. The repetitions were
necessary, for each deed required an exact statement. But it is
sufficient, having once noted the style of document, to call attention to
the peculiarities of the specifications.
(M559) (M560) Very interesting are the references to earnest money, or the
gift presented to close the bargain. As early as the time of
Manistusu(583) we find not only a price paid, but also a present given to
the seller as a good-will offering. These are of a most varied and
valuable nature.(584) As already pointed out by Meissner,(585) in the
purchase of a slave for four and a half shekels, a little present of
fifteen _ŠE_, or one-twelfth of a shekel, was thus added. Likewise when
another slave and her baby were sold we find that in addition to the price
of eighty-four shekels, one shekel is thrown in as a present.(586) I do
not recall the occurrence of this custom in Assyrian times, but in the
later Babylonian documents it is common. There it is often referred to as
the _atru_, or “over-plus.” Thus we find that in the sale of a house in
the time of Nebuchadrezzar III.,(587) besides the “full agreed price,”
_šîmu gamrûtu_, of half a mina of silver, the buyer gave one shekel of
silver, _kî atri_, “as an addition,” and “a dress for the lady of the
house.” The whole payment thus made of thirty-one shekels was called the
_šibirtu_. So in the time of Darius (?) we find that, in addition to the
full price of three minas, five shekels of silver, the buyer adds, _kî
atri_, six shekels of silver and a dress for the lady of the house, making
three minas, eleven shekels of silver as the _šibirtum_,(588) or simply to
a price of two minas of bright silver he adds two shekels, _kî pî atar_,
making a _šibirtu_ of two minas, two shekels of bright silver.(589)
(M561) Equally interesting are the sums charged as fees to the scribe.
This was paid to him expressly for obtaining the seller’s seal or
nail-mark as a conclusion of the contract.(590) Thus at the end of a deed
of sale of a single male slave, executed by three owners by affixing three
impressions of the same seal, and drawn up by one scribe, we read “Seven
shekels of silver for their seal.” The price was about one hundred and
forty shekels. Thus the scribe received a fee of five per cent. on the
sale price.(591) The ratio was not constant. It might be as low as two per
cent. Thus in the case of a sale of a slave by two owners, who made four
nail-marks in lieu of seals, we read “one mina of bronze for their
nail-marks.” There was but one scribe, and the price was fifty minas of
bronze.(592) Hence we cannot think that this fee was paid for the scribe’s
seal, as some have done. The seal, or nail-mark, was not “the
authenticating subscription by the notary,” but by the seller.
(M562) In Assyrian times the deed of sale was a much longer document. The
same general form is observed, but the document starts with a heading
giving the information that the seller had sealed the document, or, in the
absence of a seal, had impressed his nail-mark. No one but the seller ever
seals or impresses his nail-mark. The seller is usually described as the
_bêlu_, or “legitimate” owner of the property made over. Then first after
the seal, or in a space left for it, comes the specification of the
property. Next it is stated that the buyer has made a bargain and taken
the property for so much. But the bulk of the document is devoted to a
contract that the seller, his representatives, heirs, and assigns, shall
never rescind the sale, or bring any suit to recover possession, under
specified and heavy penalties. The wording of these passages recalls most
strikingly the imprecations of the kings in their charters upon those who,
in after times, should dare to render their gifts inoperative. This grand
style is one of the many indications that for the Assyrian period most of
the deeds we have were drawn up on behalf of the king’s household.
(M563) It is usually stated that the purchase is complete, the full price
paid and delivery of possession made. But in some cases this was a mere
conventional statement, and both payment and delivery were delayed. There
was to be no return of the goods, no turning back from the bargain; the
pleading of a suit of nullity of sale is expressly barred. It is of
interest to notice who were regarded as competent, or likely to take
action to recover the property. Sons, grandsons, brothers, brothers’ sons,
are all named. The enumeration clearly included females of the same
nearness of kinship. Sisters are actually named. All these relatives are
included in the term “his people.” In some cases the _šaknu_, or governor
of the district, is named, especially where slaves are sold, or the estate
involved the transfer of serfs. The _šaknu_ clearly had rights over lands
and slaves within his district. The transfer of property might act
injuriously to his rights. It was usual to stipulate that he had no such
rights. How they had been annulled we do not know. Perhaps by some
previous charter conferring exemption. The _ḫazânu_ also appears to have
had the right to intervene. The country seems to have been split up into
districts which were called on to furnish fifty units, each consisting of
an archer and a spearman or shield-bearer. Hence, the _rab ḫanšâ_, or
“captain of fifty,” was really in command of a hundred men. Whether this
obligation lay on a group of a hundred families or not, it is clear that
the transfer of ownership of land might lead to embarrassment of the
official. Hence, the _rab ḫanšâ_ was likely to intervene also. There was
service on public works also concerned in the matter. Whatever official
was _bêl ilki_, or had right to “the levy,” might intervene. The chief of
a certain district was called a _rab kiṣir_; he was also commander of a
section of the army, and he had the right to intervene. Other officials as
the _šâpiru_, _ḳurbu_, are named, but in all cases the nature of the claim
must have been similar. The object of the buyer was to stipulate that the
seller should hold him exempt from such claims. How this could be done
does not appear.
(M564) The oath to observe the contract made between the parties still
appears, but is not common. As before, these oaths are of interest, for
the light which they throw upon local cults. The gods were invoked as
being the avengers of wrong. The decision of the king was also still
regarded as a source of vengeance, since he was bound to see right done.
(M565) The penalties most commonly invoked were payments to the treasury
of a temple. These were in the nature of forfeits. The sum set down in the
deed rarely bears any exact relation to the value of the property, but is
merely a large amount. Usually, a sum in both silver and gold is stated,
but no relation between the relative worths of the metals can be deduced.
The forfeit might take the form of presenting two or more white horses to
the god. In a few cases, the penalty consisted in the devotion of a child,
usually the eldest son or daughter, to a god. The verb used for “devoting”
a child literally means to “burn.” This seems to point to an earlier
sacrifice of children by fire. But variants show that it was now used in a
more general sense of dedication. The “cedar wood of Ishtar” is named as
the spot where a daughter was to be dedicated. Further, other objects
might be dedicated as a forfeit. A great bow of bronze to Ninip of Kalḫu
is named.
A deterrent penalty was to return the price “tenfold” to the seller. Once
or twice the penalty is “twelvefold.” A further penalty was to pay a
talent of lead to the governor of the city or state. Very curious is the
penalty of being required to eat a mina of some food, possibly a magical
compound, and drink an _agannu_ pot of some drink. That this drink was
taken from a bowl inscribed with magical formulæ seems to be the best way
of reading the signs. The penalty was, therefore, an ordeal. Then, if the
contention was right, the plaintiff would be immune; if he was merely
litigious, perhaps he would be sick or even die.
(M566) Finally, it is often laid down that, if either party (especially
the seller) shall attempt to bring a suit about the property, the judge
shall not hear him, or if he insists, he shall lose the action. Throughout
it is clear that the buyer tries to make the seller contract to waive all
rights to recover his property, but he holds to certain rights of his own.
Thus, in the sale of slaves, a clause is frequently inserted which claims
a hundred days within which to set up a claim to repudiate the purchase,
on the ground that the slave is afflicted with certain diseases, the
_ṣibtu_ and _bennu_, the character of which is not exactly known. Also he
bargains that a blemish may be at any time an excuse for annulling the
bargain. These really amount to demanding a guarantee from the seller that
the slave was free from disease or other undisclosed weakness.(593)
(M567) The later Babylonian tablets do not illustrate much that is of
great interest. They often record the initial verbal discussion. Thus we
find that when A bought of B, some phrase like the following is recorded:
A said thus to B: “Give me thy property and I will give thee so much
silver.” Then we read that “B listened to him and gave A his property and
A gave him so much silver.” It is a curious little touch of
verisimilitude.
(M568) Sales usually were for the full price, or the agreed price, paid
down at once. This is expressly stated. But in the later Babylonian times
we have some examples of deferred payment, which may also have been common
during earlier periods. Thus, a man sold a slave for fifty shekels and
received twenty-five shekels as advance price. The rest was to be paid
later.(594) The payment was probably made soon. Thus we find a lady
selling four female slaves to a certain man and taking a bond of him to
pay four shekels, the balance of the price, on the second of Kislev, a
week later.(595) The interval might be two days only;(596) but sometimes a
much longer period of grace was allowed—as much as two months and seven
days—although the purchase was taken away at once.(597)
(M569) It is occasionally stipulated that if the purchase-money is not
paid by a certain date, the object purchased shall be returned. Thus S,
having sold B some slaves, took a bond of him that, if B did not pay in a
week, he would return them.(598)
(M570) A long retention of the thing purchased—especially when it was
profitable—without payment, was of course a loss to the seller. Hence, we
find the seller of a slave taking a bond of the buyer that, if he did not
pay on the date fixed, he should return the slave and his _mandattu_, or
the income which a slave paid to his master.(599)
(M571) A distinct case of fraud occurs(600) in the sale of a slave
belonging to A by his brother B without A’s knowledge. To make the matter
worse, B had the contract drawn up in A’s name. This was doubtless
represented to be a case of agency, but there is no conclusive evidence.
(M572) One of the earliest inscriptions, the stele of Manistusu, records
the purchase of large estates to form a possession for his son Mesalim,
afterwards King of Kish. The whole inscription is splendidly published in
photogravure in the _Mémoires de la Délégation en Perse_, Tome II., pp.
1-52. It is divided into a number of sections each recording a separate
purchase. One example will suffice as characteristic of all:(601)