¹ Bibliographical abbreviations

ANET — Pritchard, J.B. ed., Ancient Near Eastern Texts Relating to the Old Testament (Princeton, 1955).CrossRefGoogle Scholar

Cardascia — Cardascia, G., Les Lois Assyriennes (Paris, 1969).Google Scholar Charna — Charna, S., Hammurabi's Code (Heb.) (Berlin, 1923).Google Scholar

D. & M. — Driver, G.R. and Miles, J.C., The Babylonian Laws (Oxford, 1968).Google Scholar

D. & M. Assyria — Driver, G.R. and Miles, J.C., The Assyrian Laws (Oxford, 1935).Google Scholar

Levanon — Levanon, A., Law Codes from the Ancient Near East (Heb.) (Haifa, 1967).Google Scholar

Mendelsohn — Mendelsohn, J., “The Laws of Eshnunna” (Heb.) (1951) 11 Horeb 157–164.Google Scholar

Neufeld — Neufeld, E., Ancient Hebrew Marriage Laws (London, 1944).Google Scholar

Schorr — Schorr, M., The Assyrian Laws (Heb.) (Warsaw, 1931).Google Scholar

Szlechter — Szlechter, E., “Effets de l'absence (volontaire) en droit assyro-babylonien” (1965) 34 Orient alia 289–311.Google Scholar

Szlechter, Captivity—Szlechter, E., “Effets de la captivite en droit assyro-babylonien” (1963) 57 Revue d'Assyrologie et d'Archeologie Orientate 181–192Google Scholar; (1964) 58 id. 23–35.

Texts — see above.

Van Praag, — Praag, A. Van, Droit Matrimonial assyro-babylonien (Amsterdam, 1945).Google Scholar

Yaron, — Yaron, R., The Laws of Eshnunna (Jerusalem, 1969).Google Scholar

Yaron, J.J.S. — Yaron, R., “Mistake—Occasioned Palingamy” (1974) 25 Journal of Jewish Studies 203–226.CrossRefGoogle Scholar

Translations of Laws of Eshnunna are from Yaron, other Ancient Near Eastern laws, from ANET.

2 This phenomenon, and its many aspects, have been treated by my teacher, Prof.Lieberman, Saul, in his lectures. Also, see his “Roman Legal Institutions in Early Rabbinics and in the Acta Martyrum” (1944) 35 Jewish Quarterly Review 1–55CrossRefGoogle Scholar = Lieberman, S., Texts and Studies (New York, 1974) 57–111.Google Scholar

³ See Cohen, B., Jewish and Roman Law, A Comparative Study (New York, 1966) vol. 1, pp. xi, 13–14.Google Scholar

⁴ Cf. Ginzberg, L., 4 Hamishpat Haivri (Tel Aviv, 1933) 209Google Scholar; B. Cohen, supra n. 3, at xi, xxiv.

⁵ Cf. Ginzberg, supra n. 4, at 210.

⁶ B. Cohen, supra n. 3, at 2. Also see Rabello, M.A., “Patria Potestas in Roman and Jewish Law” (Heb.) (1974) 5 Diné Israel 85, 88, 113.Google Scholar

⁷ 367–374. The majority, however, are concerned with Biblical comparison only, although some emphasis is laid upon Talmudic law—see below. Eisenstadt himself remarks that “the discovery of Hammurabi's Code, the Assyrian Laws and extracts from the Hittite Laws stimulated jurists to seek a comparison of Jewish Law with the Laws of the Ancient Near East, and to begin comparative legal studies in general (Heb.) (p. 24, italics added). Actually, the comparative study of Jewish and Roman law had been going on for quite some time prior to the discovery of Hammurabi's Code (see B. Cohen, supra n. 3, at 6–11). Rakover's, N.A Bibliography of Jewish Law (Jerusalem, 1975)Google Scholar updates and completes Eisenstadt's list. The small number of entries on halakhah and Ancient Near Eastern law (nos. 3397–3442) is clear evidence of the neglect of this field in recent years (my thanks to Dr. Rakover for having sent me these entries whilst the book was still in the press).

⁸ “Babylon in Jewish Law” (1907) 19 Jewish Quarterly Review 109–126.

⁹ “The Laws of Amraphel, King of Shinar” (Heb.) 1 Hamishpat Haivri (Moscow, 1919) 132–161, and 142. Apparently, this was the source for Eisenstein's, J.D. “Laws of Land-Tenancy in Hammurabi's Code and the Laws of Israel in the Mishna” (Heb.) 4 Ozar Yisrael (London, 1924) 294–295.Google Scholar On the basis of the similarities, however, Eisenstein comes to the conclusion that it is necessary to assign a later date to Hammurabi (!)—“for how is it possible that provisions of Hammurabi's Code were in use at the time of the Mishna if we believe that Hammurabi himself lived thousands of years earlier during the period of Abraham?!” Beer, M., in his important work, The Babylonian Amoraim: Aspects of Economic Life (Ramat-Gan, 1974, Heb.)Google Scholar, points out a number of legal comparisons in this area, with Ancient Near Eastern law—see p. 59, n. 114; 63–64, and n. 117; 125, n. 24; 193, n. 114.

¹⁰ 157–158. On “yetziah = divorce”, cf. Muffs, Y., Studies in the Aramaic Legal Papyri from Elephantine (Leiden, 1969) 27, n. 3.Google Scholar

¹¹ History of Jewish Law, Talmudic Period I, Law of Obligation and its Guarantees (Jerusalem, 1939, Heb.) 1, n. 1; (1932) 3 Tarbiz 365; (1934) 5 Tarbiz 129–130. See also Gulak, A., The Development of Jewish Law in the Talmudic Period I, Land Law (Jerusalem, 1929, Heb.) 114–115.Google Scholar

¹² Das Urkundenwesen im Talmud im Lichte der griechisch-aegyptischen Papyri und des griechischen und roemischen Rechts (Jerusalem, 1935).

¹³ E.g., Kutcher, E.Y., “On the Terminology of Documents in Talmudic and Gaonic Literature” (1946) 17 Tarbiz 125–127Google Scholar; (1948) 19 Tarbiz 53–59, 125–128. Levine, B.A., “Mulugu/Melûg: The Origins of a Talmudic Legal Institution” (1968) 88 J. of the Am. Oriental Society, 271–285.CrossRefGoogle Scholar Levine points out (p. 273, n. 9) that attention was first drawn to “melug” by J.N. Epstein. On bills, see Y. Muffs (supra n. 10), Introduction, 1–16, and the bibliography there. On the formula of a power-of-attorney, see Rabinowitz, J.J., (1961) 13 J. of Juristic Papyrology 168–169.Google Scholar

¹⁴ In his book, supra n. 3, at xiv.

¹⁵ Rabinowitz, J.J., Jewish Law, its Influence on the Development of Legal Institutions (New York, 1956).Google Scholar In Rabinowitz's case the explanation might lie in his special interest in material which could indicate the influence of Jewish law on other legal systems, and not vice versa. Instances of the influence of Near Eastern law on the halakhah (e.g., the distinction between a gift inter vivos and that of a dying man in the Nuzi Documents, in his article, supra n. 13, at 165–166) given by him is rather an exception to his approach. Parallel material from Ancient Near Eastern law is occasionally cited by Daikan, P., Criminal Law in Israel and Amongst the Nations in the Past and the Present (Tel Aviv, 1938–1962, Heb.).Google Scholar

¹⁶ “The recent discovery of new sources of Hellenistic and Oriental laws in the papyri has, however, cleared up one important point. Contrary to earlier opinion, it was not Roman law which exerted the greatest influence, but rather the Greco-Egyptian Volksrecht of the Eastern provinces of the Roman Empire. On the other hand, it is quite possible that the undeniable affinity between Greco-Egyptian Volksrecht and the Jewish civil law finds its explanation in their common origin, the cuneiform laws”; A Commentary on the Palestinian Talmud (New York, 1941) xxx. Again in the same work (p. xxxi), he observes: “the Assyro-Babylonian law … traces of that influence are found in the oldest strata of Tannaitic tradition”. H. Albeck refers to Ancient Near Eastern law in several places in his commentary on the Mishna, see e.g., Seder Nashim, 140 (Gittin 4:6) in which the comparison casts light both upon the Mishna and the provisions in Hammurabi's Code. E.E. Urbach has used comparisons with Ancient Near Eastern Law in elucidation of Jewish Law, e.g., in “The Laws Regarding Slavery as a Source for Social History of the Period of the Second Temple, the Mishna and Talmud” (1964) 1 Papers of the Institute of Jewish Studies, London, 1–94 = (1960) 25 Zion (Heb.).

¹⁷ “Neo-Babylonian Law in the Halakhah” (1967) 37 Tarbiz 30–40.

¹⁸ Supra n. 10, at 193–194, and especially, the end of n. 3 and the literature cited therein. On the lexocographical aspect and the contact during the First Temple period, see Muffs' thesis in: (1973) 5 The Journal of the Ancient Near Eastern Society of Columbia University, 287–298. See now Muffs, Y., “Joy and Love as Metaphorical Expressions of Willingness and Spontaneity in Cuneiform, Ancient Hebrew and Related Literatures” in Neusner, J., ed., 3 Christianity, Judaism and Other Greco-Roman Cults, for Morton Smith at Sixty (Leiden, 1975) 1–36Google Scholar, and literature cited in n. 2 there. Muffs remarks: “If one cannot as yet speak of a formal school of Assyriologically oriented Talmudic studies, it would not be rash to say that such a school is clearly beginning to emerge”.

¹⁹ Yaron, R., Tijdschriftrooz Rechtsgeschiedenis, XXX (1963) 62–68.Google Scholar

²⁰ As early as 1903, reference was made, by S.A. Cook, to Yebamoth Ch. 10 in relation to Hammurabi, §§. 133–136 (although his conclusion as to the halakhah is mistaken): The Laws of Moses and Hammurabi (London, 1903) 133, n. 2. L.G. Levy wrote of the Mishna in Yebamot that “a comparison with §. 134 of Hammurabi's Code would not be without interest” (French) La Famille dans l'antiquité israélite (Paris, 1905) 210, n. 2. Neufeld (p. 187, n. 1; emmend according to Levi, loc. cit. n. 1) and Yaron (p. 136) cite various other halakhic sources in relation to the Laws of the Ancient Near East discussed here. At the beginning of his article in J.J.S., which is devoted to the law governing “a woman whose husband went overseas” in halakhic sources, Yaron refers in general terms to Eshnunna, 133 ff., a comparative study not being within the scope of the article in question (Yaron, J.J.S. 203, n. 4; 204, 226). Cf. also Roth, E., “On the Development of the Agunah-Problem”, in I. Goldziher Memorial Volume II, (Jerusalem, 1958, Heb.) 59–82.Google Scholar Roth surveys various provisions of Jewish law from the Bible to present, and mentions Ancient Near Eastern law among the non-Jewish systems also surveyed.

²¹ On this perplexing clause, see below.

²² In the original Hebrew article, a special translation into Hebrew of the pertinent passages was prepared, based upon the standard translations. Subsequently, I had the good fortune of reading the Accadian texts with the kind assistance of Dr. Zvi Abush, who clarified various points for me. These are reflected in the translation of these passages in the Hebrew article.

²³ Eshnunna lay on the eastern bank of the Euphrates (see Yaron, p. 1), and the Laws were compiled in “approximately 1900 B.C.E.”, 5 Encyclopaedia Biblica (Heb.) 591, 594–596. Our presentation is in chronological order; the somewhat surprising fact that they seem to complement and expand each other is, apparently, merely co-incidental.

²⁴ Yaron, 34–35; ANET, 171. The Accadian zaru serves, in addition to its descriptive function, as a technical term in the sense of “divorce” etc., Kutcher, E.Y., “New Aramaic Texts” (1954) 74 J. of the American Oriental Society, 238Google Scholar, and see Rabinowitz, J.J., 2 Encyclopaedia Biblica (Heb.) 552Google Scholar, s.v. gerushin; Jewish Law, 40; Yaron, R. (1957) 4 RIDA 117–119Google Scholar; Mendelsohn (p. 161) refers here to Deuteronomy 24:1–4. Apparently, Szlechter experienced some difficulty with this word since he understood it solely in the descriptive sense, and preferred to translate it as “deserter” (p. 295).

²⁵ “1792–1750 B.C.E.”, Encyclopaedia Biblica, supra n. 24.

²⁶ This is even more pronounced in the Assyrian Laws and is apparently an increasing tendency, and it may not be necessary to attribute each case (of formulation from the woman's perspective) to a specific cause, as in Szlechter, 297–298.

²⁷ See infra, n. 28.

²⁸ This is the opinion of most scholars. See, however, D. & M. II, 53, 215–216: “If a man take himself off”. This translation makes a considerable change in the meaning of the law, and the proofs offered in its favour are not absolutely convincing. On the other hand, the translation: “taken captive” explains the operative legal distinction between §§. 135 and 136.

²⁹ The significance of the Accadian word is “sin” or “punishment”.

³⁰ D. & M., 53: “…before his return…, literally, at his face, before him…”.

³¹ D. & M., 53, add: “literally, her chooser”. There is, however, no basis for explaining it as “he who chooses her” in this case, see loc. cit. at 217.

³² D. & M. II, 52–55; ANET, 171; Levanon, 89.

³³ Approximately 1400–1100 B.C.E.”, Encyclopaedia Biblica, supra n. 24.

³⁴ The jurisdiction for compensation arises from the legality of the second marriage (cf. the attempted leniencies in Talmudic law, cited below, in cases where the second marriage was officially permitted). As in all instances of compensation, there exists no exact equivalence and Miles' observation is somewhat exaggerated, when he says: “This cynical provision throws light on the position of women in Assyria, as it seems that any woman of the same age and station would suffice” (D. & M. Assyria, 257, n. 2).

³⁵ Cf. Szlechter, 309 ff.

³⁶ Also in D. & M. Assyria, this text is translated: “…her husband has made her to dwell apart”. Szlechter's version, however, is more persuasive, since in his opinion, we are dealing with a woman residing in her husband's home, and the present formulation takes into account her husband's absence when the law is applied (292, n. 1).

³⁷ See Cardascia, 187 — ana egli = “abroad”. On the Hebrew sadeh as a geographic reference (hevel eretz) see S. Morag, “The Tiberian Tradition of Biblical Hebrew; Homogenous and Heterogenous Features” (Heb.) (1974) 2 P'rakim. In relation to Eretz Yisrael, situated on the coast, the expression medinat hayam corresponds to “abroad” (see Rashi, beginning of Gittin).

³⁸ On the fundamental obligation to supply one's wife with oil, see Paul, S.M., Studies in the Book of the Covenant in Light of Cuneiform and Biblical Law (Leiden, 1970) 56–60.Google Scholar

³⁹ Dr. Abush suggests: “and has sent her nothing from the field”.

⁴⁰ The Accadian d'na mu-ti-sa ur-ki-e za-ku-at means “to her last husband she will be clean (free)”. On the Accadian zaku, and the Hebrew zakai, see Kutcher, E.Y., (1948) 19 Tarbiz, 125, and n. 5.Google Scholar

⁴¹ ri-ik-sa. See D., & M., Assyria, 253–254Google Scholar; Szlechter, 294, n. 3; 302–305; S. Greengus, , “The Old Babylonian Marriage Contract” (1969) 89 J. of the American Oriental Society, 505–532.CrossRefGoogle Scholar

⁴² D., & M., Assyria, 402–405Google Scholar; ANET, 183–184; Cardasela, 182–184; Levanon, 126.

⁴³ According to the Assyrian Laws (§. 33), a father-in-law also performs the “Levirate marriage”.

⁴⁴ D., & M., Assyria, 412–415Google Scholar; ANET, 183–184; Cardasela, 217–218; Levanon, 128.

⁴⁵ For a discussion on the laws treated here, see D., & M., Assyria, 250–266Google Scholar; D. & M. I, 284–290; Van Praag, 95–100; Yaron, 133–137; Cardasela, 187–191, 219–226; Szlechter. In D. & M. some of the major legal questions are left in a perplexing form, see in particular the question of the validity of the second marriage (287–289).

⁴⁶ See Tosefta, ad. loc. 14:6 ff., ed. S. Lieberman, 53 ff., and S. Lieberman, Tosefta Ki-fshutah VI ad. loc., 175 ff.

⁴⁷ See supra n. 26.

⁴⁸ See Yaron, 135, contra Szlechter, Captivity, 184, n. 5.

⁴⁹ See Hammurabi's Code, §. 177. According to scholarly opinion, almattu is “a once-married woman who has no means of financial support and who is thus in need of special legal protection”. See Cohen's, C. summary in “The ‘Widowed’ City” (1973) 5 J. of the Ancient Near Eastern Society of Columbia University, 76Google Scholar, n. 17, and see Ekhah Rabbati (1:3 on Lam. 1:1): “Like a widow, like a woman whose husband has gone overseas and who intends to return to her”, basing the exegesis on the comparative kaph. This is contrary to Szlechter, , Captivity, 188 and 189 n. 1Google Scholar, according to whom the issue is presumption of death. From the language of the law it would appear that the husband has disappeared, but may still return.

⁵⁰ In order to emphasize the utilitarian nature of the marital bond in Mesopotamian law, Driver and Miles contrasted it with the position in the Common Law of England which is based on the Christian concept of holy sacrament which can never be put aside in order to permit another marriage (D. & M. I, 289–290). The more striking comparison, however, would have been with the laws of the Mishna which are closer in time and geographic area.

⁵¹ Szlechter likewise describes the underlying distinction here as “L'opposition entre ‘absence involontaire’ et ‘absence volontaire’” (p. 290, and n. 2, and see p. 305). Apparently, these cases (capture in battle/rebellion) are the classic ones, and the legislator specified them in the law; he was not, however, concerned with enumerating every single case e.g., flight from creditors. This is the glaring “lacuna”, and Szlechter attempts to infer from the legislator's language that “rebel” and not “captive” is intended (see Yaron, 133–134). Incidentally, it is noteworthy that in Tannaitic sources, the Tanna often cites the two classic cases without specifying the intermediate case (see Fraenkel, J., “Ha Gufa Qasha, Internal Contradictions in Talmudic Literature” (1973) 42 Tarbiz, 266Google Scholar). In the Syriac Nestorian law treated below, the intermediate cases of the husband's disappearance are described. A case of “a woman with two husbands” also appears in the Bible (I Samuel 25:44; II Samuel 3:14–17). In his commentary (Jerusalem, 1956, Heb.) M. Segal states: “And when David fled from his house, Michal returned to her father's house and was considered as having been divorced by her husband” (p. 203, italics added). Although Segal obviously intended no reference to Ancient Near Eastern law, his language is indeed reminiscent of these provisions. Similarly, Smith, H.P., International Critical Commentary, The Books of Samuel (New York, 1929)Google Scholar; Kirkpatrick, A.F., Cambridge Bible, Samuel I (Cambridge, 1894) 207Google Scholar; and Ginzberg's, L. observation: “From the account of David and Michal we also learn that one who rebelled against the king was considered as if dead, and his wife was permitted to remarry” (1933) 4 Hamishpat Haivri, 209Google Scholar, and see Yaron, p. 136 n. 105. Were we to view Saul's act in giving his daughter to another man against the background of Mesopotamian law (and there is no conclusive evidence for this view), it would be David's flight (as it were) which would be significant, and not his marriage with another woman (see Falk, Z., The Divorce Action by the Wife in Jewish Law (Jerusalem, 1973, Heb.) 16–17Google Scholar). In 1979, a study by Z. Ben-Barak appeared, which also compares the case of Michal and David to the Mesopotamian laws under discussion in our study (“The Legal Background to the Restoration of Michal to David” (1979) 30 Supplement to Vetus Testamentum 15–29). In connection with her presentation viewing the entire Michal episode as according to Mesopotamian law, Ben-Barak found it necessary to take David's flight as a legal equivalent of being taken captive: “David is forced against his will to abandon his home and flee for his life, to wander in the desert and go into exile in a foreign land. There appears prima facie a difficulty in comparing David's situation with the main principle of the law: while the Mesopotamian law is concerned with a man who has been taken by an enemy, David is said to have fled himself. We have already emphasized, however, that the law in question is based on a single criterion, namely whether the situation in which the man finds himself was imposed upon him against his will, by force majeure, or whether he created it of his own free will. In the case of David, it is made abundantly clear that his departure was involuntary, by force majeure, to no less an extent than that of a captive” (p. 25). I wish to thank Prof. Ziony Zevit for bringing this article to my attention.

⁵² Concerning the first husband who fled (Hammurabi's Code, §. 136), Miles wrote as follows: “Although she is called his wife and he is called her husband, she is entitled to remain with the second man who is her husband, and the marriage with the first husband is at an end” (D. & M., vol. 1, p. 289; italics added).

⁵³ It is supported by passages in Talmudic literature, and in the Palestinian Talmud. Traditional halakhic writings, however, follow the dialectic interpretation of the later strata of the Babylonian Talmud, see Texts, 323–339, 363–375. It is parenthetically noted that in Mesopotamian law, too, the woman remarries of her own accord, see Hammurabi's Code, §§. 135–136, and §. 29 of Timothy's Syriac Code, below. For scholarly opinion, see Aptowitzer, V., Sitzungsberichte der kaiserlichen Akademie der Wissenschaften in Wien, Philosophisch-historische Klase, 163Google ScholarAbhandlung V (1909), 65 n. 6; Blau, L. in Festschrift Adolf Schwarz (Berlin and Vienna, 1917) 197Google Scholar; Albeck, H., (1938) 9 Tarbiz, 170–171Google Scholar, and his Commentary to the Mishna s.v. “she is permitted to return to him”, and in the addenda, p. 339; also Rabinovitz, Z.W., Sha'are Torath Eretz Israel (Jerusalem, 1940) 354Google Scholar; Lieberman, S., Tosefta Ki-fshutah, VI, 108–110Google Scholar; Halivni, D., Sources and Traditions, (1968, Heb.) 99–100.Google Scholar The fact that “without permission” means “on her own” (i.e., “by one witness without going to court”) is made absolutely clear by the exchange of these two phrases in parallel Tannaitic sources of the Tosefta and Palestinian Talmud, whereas the Babylonian Talmud alone automatically rephrases this as “according to the testimony of witnesses”, see Prof. Lieberman's discussion in Tosefta Ki-fshutah, VI, 108–109.

⁵⁴ “They imposed this law upon her due to similarity to a Biblically prohibited union” (Palestinian Talmud, 10c. beg. ch. X bears comparison).

⁵⁵ “Now it is reasonable that the children by the second husband should be deemed bastards, but why should the subsequent children by the first husband be deemed bastards? She is surely his wife (legally, according to scriptural law!)”, BT 89b. Similarly, “it is quite intelligible that she should require a divorce from the first husband, but why from the second husband? Her relationship to him is legally mere promiscuity (and not marriage).” Cf. Palestinian Talmud, beg. Ch.X.

⁵⁶ See Texts, 277–281; 367–375.

⁵⁷ In Halivni's summary of the scholarly opinions (supra, n. 53): “…And even though the husband returned after her remarriage, she is forbidden by virtue of Rabbinic law to return to him”. Similarly, according to Aptowitzer (supra, n. 53): “…erhält die zweite Ehe den Schein der legitimität” (italics added). Presumably, the idea is similar to that of the gemara, i.e., “the Sages penalized her”.

⁵⁸ See Alon, G., Studies in Jewish History (Tel Aviv, 1957, Heb.) Vol. I, p. 104Google Scholar, n. 64 = ibid., Jews, Judaism and the Classical World, (Jerusalem, 1977), 121, n. 64 and 309–310; Gilat, Y.D., The Teachings of R. Eliezer b. Hyrcanos (Tel Aviv, 1968, Heb.) 31 and n. 73Google Scholar; ibid., Molad (Sivan, 1970, Heb.) 284–288; ibid., Bar-Ilan (Heb.) 7–8 (1970) 128 and n. 56; ibid., Benjamin De Vries Memorial Volume (Jerusalem, 1968, Heb.) 88 and n. 20; Mantel, H., “The Ancient Halakha” (Heb.) (1974) 5 Diné Israel 156, 178Google Scholar; Ginzberg, L., An Unknown Jewish Sect (New York, 1976) 110–111, 125.Google Scholar According to this approach, it could be said that the Mishna reflects here the original law and it is thus not necessary to reconstruct an “Earlier Mishna” on the basis of the gemara (as in Falk, Z., Introduction to Jewish Law in the Second Commonwealth Period (Tel Aviv, 1971, Heb.) 2, 288–289 and n. 85.Google Scholar

⁵⁹ Following Hisda, R. (Yebamoth, 89b)Google Scholar, who derived this principle from the ruling in the Mishna, “the child by the one husband or the other is a bastard”, the implication of the sugya being that this is the plain sense of the Mishna. Likewise, it is the plain meaning of the other Mishnayot and Braitot cited both in this sugya and elsewhere; see Gilat, Y.D., “A Rabbinical Court may Decree the Abrogation of a Law of the Torah” (1970) 7–8 Bar-Ilan, 117–132Google Scholar; Texts, 346–357.

⁶⁰ See Yebamoth, 88b.

⁶¹ “She is not a victim of circumstances beyond her control (anusah), for although the Sages believed one witness in cases involving deserted wives, they did so on the assumption that the woman in question would conduct a thorough investigation into the matter and this woman who obviously did no such thing is to be punished” (Rashi, , Yebamoth, 87bGoogle Scholar, s.v. tetze).

⁶² Bef Habehira Yebamoth, Dikman, S., ed., (Jerusalem, 1962) 315.Google Scholar

⁶³ See Texts, 279.

⁶⁴ Texts, 367–375.

⁶⁵ Texts, 331–335.

⁶⁶ Rab established a number of enactments in matters of family law in order to prevent suffering to the married couple and in particular, to the woman, see Kiddushin 41a, against marriage of a minor girl, or in cases where the husband had not seen the wife previously, and see Kiddushin, 12b.

⁶⁷ By means of a most mechanical type of transfer of material from Yebamoth 117b, see Texts, 336–339.

⁶⁸ See n. 64.

⁶⁹ Sachau, E., Syrische Rechtsbücher, Zweiter Band … Gesetzbuch des Partriarchen Timotheos… (Berlin, 1908).Google Scholar The collection contains 99 sections in the form of questions and responsa, but this is actually an artificial device (as in the Sefer Hamaasim Livne Eretz Israel). (Parenthetically, it would appear that there may be other points of similarity between this work and the Syriac laws). In general, each section opens with the term “shualah” (= she'elah, see Dikdukei Soferim on Taanit, 137, n. ℵ; elsewhere I shall attempt to deal with the relation between this term and the expression “sheilta” at the beginning of each section of the Sheiltot).

⁷⁰ Aptowitzer, V., “The Influence of Jewish Law upon Legal Development in the Christian East” in Asher Gulak and Samuel Klein Memorial Volume (Jerusalem, 1942, Heb.) 223–251Google Scholar, and the bibliography at 227, and in S. Eisenstadt, , Ein Mishpat 374–375.Google Scholar Also see Hamishpat Haivri, Vol. 1 (Tel Aviv, 1926) 164.

⁷¹ = Betrothal agreement. Lit.: conditions, cf. t'naim.

⁷² The Syriac texts were included in Hebrew transcription in the original publication (Heb.) of this article.

⁷³ For example, “three or four years”, towards the beginning of the “answer” seems to be inspired by “for three years” later on.

⁷⁴ Neglecting to send maintenance from his new location is also mentioned in the Mesopotamian law. We suggested above that this distinction (maintenance/lack of maintenance) was secondary, and later in time to the fundamental distinction (unwillingly/willingly), which does not appear here. It is particularly interesting to compare the language here, “she is obliged to keep faith for three years”, with §. 36 of the Assyrian Laws: “she shall wait for her husband for five years, on the advent of the sixth year she may go to live with the man of her choice”.

⁷⁵ Aptowitzer already pointed out that this law contradicts the Nestorian concept of betrothal, even that of Timothy himself (§. 41), which regards the betrothed woman as fully married in respect to the prohibition on adultery (as in Talmudic law). Consequently, the permitting here of the woman to marry another man contradicts another ruling in the very same Code, which forbids such an action (§. 31, see below). His conclusion was that §. 29 came from a different source and, in this respect, he referred to §§. 133–134 of Hammurabi's Code (V. Aptowitzer, Die syrischen Rechtsbücher und das mosaisch-talmudische Recht (supra n. 53) 63). Our contention here is that the contradiction is inherent in §. 29 itself, as a result of the use made by the legislator of the ancient law handed down to him.

⁷⁶ It should also be obvious that there is no connection between this distinction and the one in Mishna Yebamoth between the woman who remarried in her husband's absence, and the woman who was merely betrothed.

⁷⁷ In the Syriac: tub. Cf. tu ba'al … in Halakhot Gedolot Warsaw, 156, col. b. line 2, and 'od, in Sefer Hamaasim lime Eretz Yisrael and in the Palestinian Talmud (Lewin, B.M., (1929) 1 Tarbiz 88Google Scholar, par. 6).

⁷⁸ This point also emerges from the sequence of presentation. Were the whole section to have been written in free style, the order would have been as follows: “1 — the man who married and the woman should be excommunicated for a specified period; 2 — then, if the first husband wishes to take her back, he may do so; 3 — alternatively, if he hates her, he may reject her and marry someone else.

⁷⁹ Aptowitzer also compared this section with §. 135 of Hammurabi's Code (supra, n. 75) 64–65. But, interestingly, in his presentation of the Syriac Code in question, Aptowitzer only cited the sentence ‘he has the right to take his wife back according to the law” (the “kernel”) and omitted the rest! This deprived him of the opportunity to dwell on the complex relationship between §. 32 of Timothy's Code and §. 135 of Hammurabi (the “kernel” being similar to it, and the elaboration in opposition to it).

⁸⁰ Regarding the Syriac law under discussion, Aptowitzer (supra n. 53) notes “Auch nach dem talmudischen Rechte wird im Falle der Heimkehr des Verschollenen die zweite Ehe gesprengt. Darüber sind alle lehrer einig. Hindgegen bezüglich der Wiedervereinigung mit dem ersten Gatten lautet die rezipierte Ansicht vereinend, während einzelne sie unter gewissen Bedingungen gestatten” (p. 65). The reference is to the clause “she is permitted to return to him” in the Mishna. Now, if it was Aptowitzer's intention to point to an interesting parallel, well and good. If, however, he intended to infer influence upon the Syriac law by the Talmud, then, as pointed out in the body of the text, the inference is somewhat far-fetched. In the light of his general approach, however, it would appear that the latter was also his intention here. For indeed, he has written: “…Christian codifiers incorporated Jewish law in their lawbooks … my investigations have resulted in proving that Jewish law was the common source for Henanisho, Timothy, and Jeshubarnum”: (1910–11) N.S. 1 Jewish Quarterly Review 217, 216 and see supra, n. 76. Additional note to p. 533: See Geller, M. J., “New Sources for the Origins of the Rabbinic Ketubah” (1978) 49 HUCA 227–245.Google Scholar