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A Death in the Family: Codex Eshnunna 17–18 Revisited

  • Raymond Westbrook

Extract

It gives me great pleasure to dedicate this contribution to a teacher and scholar whose now classic study has done so much to enhance our understanding of the Old Babylonian law-code from Eshnunna.

Codex Eshnunna (CE) 17–18 read as follows:

  • I13. DUMU.LÚ a-na É e-mi-im tir-ha-tam li-bi-il-ma
  • 14. šum-ma i-na ki-la-al-li-in iš-te-en a-na ši-im-tim
  • 15. it-ta-la-ak KÚ.BABBAR a-na be-lí-šu-ma i-ta-a-ar
  • 16. šum-ma i-hu-ús-si-ma a-na É-šu i-ru-ub
  • 17. lu-ú a-hi-za-n[u-u]m [l]u kal-la-tum a-na ši-im-tim it-ta-la-ak
  • 18. ma-la ub-lu ú-ul ú-še-ṣi wa-tar-šu-ma i-le-eq-qé
  • 17. Should the son of a man bring the betrothal payment to the house of the father-in-law, if one of the two dies, the silver shall return to its owner.
  • 18. If he marries her and she enters his house (and) either the marrier or the daughter-in-law dies, as much as he brought he shall not hand over; he shall take its surplus.

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1 The transliteration is of Tablet IM 52614 = Text B in Goetze's edition (A. Goetze, The Laws of Eshnunna, Annual of the American Schools of Oriental Research 31, New Haven, 1956). Text A presents only a garbled version of these two paragraphs, due to an error of homoioteleuton by the scribe.

2 The Laws of Eshnunna, (Jerusalem/Leiden, 2nd ed., 1988) 35.

3 CH 163 contains a complication which does not concern CE, namely the need for the set-off arrangements to take into consideration a custom whereby the betrothal payment had already been returned to the groom upon marriage as a supplement to the dowry. See Van Praag, A., Droit matrimonial assyro-babyIonien, (Amsterdam, 1945) 135–36, and Yaron, supra n. 2, at 176–79.

4 The scholarship is reviewed by Yaron, ibid., at 183–87.

5 E.g., Goetze, supra n. 1, at 62–63; Szlechter, E., Les lois d'Ešnunna, (Paris, 1954) 4748; Yaron, supra n. 2, at 179–80; Westbrook, R., Old Babylonian Marriage Law, Archiv für Orientforschung Beiheft 23, (Horn, 1988) 47.

6 Goetze, supra n. 1, at 63, raises this possibility, but dismisses it as not probable, without further discussion.

7 See e.g. Cardasela, G., Les lois assyriennes, (Paris, 1969) 66–7.

8 Westbrook, supra n. 5, at 47. Van de Mieroop, M., Review of Westbrook, Old Babylonian Marriage Law, (1991) 48Bibliotheca Orientalis Cols. 573–74.

9 Ibid., at 47.

10 Goetze, supra n. 1, at 59–60, originally restored 1.17 as ù(?) a-ah-ha-ru-um(?), an otherwise unattested term which he took to mean “afterwards,” translating “but soon afterward the young woman deceases”. On this interpretation, the paragraph dealt only with the death of the wife, as in CH 163–4. The present reading of 1.17 was proposed by Landsberger, B. (“Jungfräulichkeit,” Symbolae Iuridicae et Historicae Martino David Dedicatae Vol. 2, ed. Ankum, J. et al. ., Leiden 1968, 73) and confirmed by collation by R. Ellis (see Finkelstein, J., “On Some Recent Studies in Cuneiform Law,” (1970) 90 Journal of the American Oriental Society 249 n.39). The legal difficulties that arise due to the new reading have been detailed by Yaron, supra n. 2, at 181–83.

11 It might be argued that on the same grounds the phrase could refer to the bride, since the verb wabalum can be used of her transfer of the dowry, as in CH 156. There is indeed an inference in the protasis to the dowry having been transferred, but it indicates a different verb. The statement ‘she entered his house’ suggests the phrase commonly used in contemporary marriage documents ‘this (dowry) is what A. (bride's father) gave to her and caused to enter the house of B. (groom's father/groom).’ See e.g. BE 6/1 84 (Westbrook, supra n. 5, at 113), CT 8 2a (ibid., at 118–19).

12 Cf. Yaron, supra n. 2, at 183–4, who translates “relinquish” on the same understanding, namely that the subject causes an object to go forth from his possession. Although the verb šuṣûm has many different connotations, this meaning is clearly established in Old Babylonian contexts involving silver or commodities, e.g. AbB 3, 88:15–17: šea-am ma-hi-ra-at i-la-ku13 i-di-ši-im-ma kubabbar i-na bi-ti-i-ka la ú-še20-ṣú-ú “‥give her barley at the going rate but let them not hand over silver from your house…”.

13 Ibid., at 186–87.

14 Ibid., at 189.

15 Ibid., at 91–2.

16 Ibid., at 14–16, 45–7.

17 E.g. BIN 7 173:16–22 (Westbrook, supra n. 5, at 116); VAS 18 114:15–20 (136).

18 Ed. Porten, B. & Yardeni, A., Textbook of Aramaic Documents from Ancient Egypt, Pt. 2: Contracts, (Jerusalem, 1989) 7883.

19 See generally Yaron, , Introduction to The Law of the Aramaic Papyri, (Oxford, 1961) 101107, 114–20; Muffs, J., Studies in the Aramaic Legal Papyri from Elephantine, SDIOAP 8, (Leiden 1969) 173–94; cf. Westbrook, , “The Prohibition on Restoration of Marriage in Dt. 24:1–4,” Studies in Bible, Japhet, S., ed., Scripta Hierosolymitana 31, (Jerusalem, 1986) 399403; Geller, M., “New Sources for the Origins of the Rabbinic Ketubah,” (1978) 49 Hebrew Union College Annual 228–37.

20 The betrothal payment had been included in the dowry, in accordance with the custom already attested in CH 163. See n. 3 above and Geller, supra n. 19, at 227–28.

21 Cowley 15:22–29 (ed. 30–33). A third marriage document, Kraeling 2 (ed. 60–63), does not specify the wife's subsequent fate in its divorce clauses. In the remaining marriage documents from Elephantine the divorce clauses are not preserved.

22 In Cowley 15 and Kraeling 2 there is only payment of divorce money, not loss of the betrothal payment.

23 The reading of this term is disputed and the meaning of the phrase unclear. For a review of the proposals, see Yaron, supra n. 2, at 52–53.

24 qiptum. For a discussion of this term, see Westbrook, Property and the Family in Biblical Law, (Sheffield, 1991) 120–22.

25 The verb waṣabu ‘to add’ is normally personal with the borrower as subject. Accordingly, some commentators have regarded 18A as part of 18, in accordance with Goetze's original division (see esp. Landsberger, supra n. 10, at 73–74). Attempts to see this as the imposition of interest on a payment by one of the parties in 18, however, confuses restitution with loan and produces legally absurd results (see Yaron, , The Laws of Eshnunna, Jerusalem, 1st ed., 1968, 11 n.36). Recently, E. Otto has suggested that the percentages in 18A represent the proportion which the bride's father may deduct for each year of the completed marriage from his repayment of the terhatum (Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (Rom. Abt.) 109(1992)475–81). The rationale for this extraordinary arrangement is said to be the financial benefit to the bride, but on one contingency given in the law the bride is dead. In any event, an impersonal meaning of the verb with the capital sum as its subject, although uncommon, is by no means impossible. It is well attested in Old Babylonian Alalakh in the phrase kaspu šu ul uṣṣab u ul iddarrar ‘this silver will not increase and will not be cancelled’ (e.g. Wiseman, D., The Alalakh Tablets, (London, 1953) no.31:8–9; JCS 8 (1954) 5 no.30:7–9). The same conclusion has been reached, with further Old Babylonian examples, by Yaron in a new study that reached me after this article was in press: “kurrum ṣibtam uṣṣab”, (1993) 83 Zeitschrift für Assyriologie 206–218.

26 For the translation of ana panišu as ‘originally,’ see Rosen, B., “Some Notes on Eshnunna Laws 20 and 21”, (1977) 71 Revue d'Assyriologie 3538.

27 See Korosec, V., “Keilschriftrecht” in Orientalisches Recht, Handbuch der Orientalistik I/3, (Leiden, 1964) 86.

28 Petschow, H., “Zur “Systematik” in den Gesetzen von Eschnunna,” Symbolae Iuridicae et Historicae Martino David Dedicatae, Vol. 2, Ankum, J. et al. , eds. (Leiden, 1968) 135–39.

29 Petschow does initially suggest a wider classification in qualifying the group of paragraphs from 15 apparently to 35 as contract law. It would seem that he regards marriage as a contract, although he avoids using the term in discussing 17–18, preferring to refer to them as ‘Rechtsgeschäfte.’

30 Otto, E., Rechtsgeschichte der Redaktionen im Kodex Ešnunna und im “Bundesbuch”, (Freiburg, 1989) 6166.

31 Supra n. 28, at 135–36. See also idem, “Zur Unwirksamkeit verbotener Rechtsgeschäfte im altbabylonischen Recht”, (1961) 54 Zeitschrift für Assyriologie 197–200.

* M.A. (Oxon.), Ll.M. (Jerusalem), Ph.D. (Yale), Barrister, Professor of Ancient Law, Johns Hopkins University.

A Death in the Family: Codex Eshnunna 17–18 Revisited

  • Raymond Westbrook

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