FAMILY DECEASED ESTATE DIVISION AGREEMENTS
FROM OLD BABYLONIAN
LARSA, NIPPUR AND SIPPAR
by
SUSANDRA JACOBA CLAASSENS
submitted in accordance with the requirements for
the degree of
DOCTOR OF LITERATURE AND PHILOSOPHY
in the subject
ANCIENT NEAR EASTERN STUDIES
at the
UNIVERSITY OF SOUTH AFRICA
PROMOTER: PROF PS VERMAAK
NOVEMBER 2012
DECLARATION OF MY OWN WORK
I, Susandra Jacoba Claassens declares that the “Family deceased estate division agreements
from Old Babylonian Larsa, Nippur and Sippar” is my own work and that all the sources that
I have used or quoted have been indicated and acknowledged by means of complete
references.
Signed at Pretoria on the 30th day of April 2013.
_____________________________________
Susandra Jacoba Claassens
i
ABSTRACT
In most cases in a deceased person’s estate, there are problems with co-ownership where
more than one family member inherits the deceased family estate assets. To escape the perils
of co-ownership the beneficiaries consensually agree to divide the inherited communallyshared asset/s. This agreement can take place immediately after the death of the family
estate owner or some time later regarding some or all of the said assets. On the conclusion of
the division agreement, the contractual party who receives the awarded assets enjoys sole
ownership and the other contractual parties by agreement retract their ownership. In a
jurisprudential content analysis of forty-six recorded family deceased division agreements
from Old Babylonian Larsa and Nippur, essential elements are identified which are the
framework and qualification requirements for a family deceased division agreement. Within
this framework the concepts, terms and elements of the agreement are categorised as natural
and incidental elements, which reflect the specific law traditions and choices of contractual
parties and show the unique scribal traditions in the different Old Babylonian city-states of
Larsa, Nippur and Sippar. The aim of the study is to shed a more focused light on the
interpretation of recorded Old Babylonian division agreements and to show that the division
agreement was a successful, timeless, estate administration mechanism and tool to obviate
any undesirable consequences of co-ownership of the bequeathed property.
Keywords:
Ancient Near Eastern Law, Mesopotamian Law, Old Babylonian Law, Cuneiform Studies,
division agreements, redistribution agreements, partition agreements, allotments, inheritance
share, inheritance, co-ownership, preference share, “first-born” share, “heart is satisfied”,
“from straw to gold”, cuneiform agreements, Old Babylonian contracts, Mesopotamian
contracts, methodology
ii
To my son
LOUIS CLAASSENS
Thank you for your patience and unconditional love
iii
ACKNOWLEDGEMENTS
A special thanks to my husband, Pierre van Wyk whose love inspires and encourages me and
constantly reminds me of the final rewards of my labour. Thank you for your kind assistance
in the final editing of the thesis. Thank you for your constant support and encouragement;
lending a shoulder to cry on, especially in the last stages of my thesis.
Thank you to my family and friends, especially my son Louis, for their support through these
years. Words alone cannot express what I owe them for their encouragement and patient
love, which enabled me to complete this thesis.
I am also indebted to Corrie Claassens for the house drawing in the methodology chapter.
Thank you to Professor Fanie Vermaak who not only served as my promoter but also
challenged me throughout my academic program. He guided me through the thesis process,
never accepting less than my best efforts.
iv
LIST OF ABBREVIATIONS
List of abbreviations commonly used by scholars of ancient Near Eastern studies.
Abbreviation
English description
ANE
Ancient Near East/Eastern
CAD
Assyrian Dictionary of the Oriental
Institute of the University of Chicago
ETCSL
Electronic Text Corpus of Sumerian
Literature
OB
Old Babylonia/Babylonian
PSD
Pennsylvania Sumerian Dictionary
Mesopotamian cuneiform collections / law collections / law codes.
Abbreviation
English description
LE
laws of Ešnunna
LH
laws of ammu-r pi
LL
laws of Lipit-Ištar
LU
laws of Ur-Nammu
MAL
Middle Assyrian laws
v
TABLE OF WEIGHTS AND MEASURES
Old Babylonian Units
1 area sar = 1 rod square
1 volume sar = 1 area sar x 1 cubit
1 (ubu) = 50 sar
1 (iku) = 2 ubu = 140 sar
1 (eše) = 6 iku
1 (búr ) = 3 eše
1 (sar) = 6 bur'u
Approximate present-day values
36 m2
18 m3
1800 m2 or 900 m3
3600 m2 or 1800 m3
2.16 ha or 108,000 m3
6.48 ha or 324,000 m3
388.8 ha
(Powell (1987); Robson (2007); http://oracc.museum.upenn.edu/dcinchest/metrology.html.
Cited 29 January 2007).
vi
VOLUME 1
PART A & B
TABLE OF CONTENTS
DECLARATION OF MY OWN WORK ...................................................................................................................I
ABSTRACT ........................................................................................................................................................II
ACKNOWLEDGEMENTS .................................................................................................................................. IV
LIST OF ABBREVIATIONS ................................................................................................................................. V
TABLE OF WEIGHTS AND MEASURES ............................................................................................................. VI
TABLE OF CONTENTS..................................................................................................................................... VII
CHAPTER ONE .................................................................................................................................................. 1
INTRODUCTION ............................................................................................................................................... 1
1.1 BACKGROUND INFORMATION..................................................................................................................... 1
1.1.1
Different terms or expressions assigned to the family division agreement .................................... 1
1.1.2
What is an Old Babylonian family deceased division agreement? An example .............................. 2
1.2
RESEARCH QUESTIONS ............................................................................................................................. 3
1.2.1
What is a division agreement? ....................................................................................................... 4
1.2.2
Uniqueness of the agreement ......................................................................................................... 5
1.2.3
Different law practices and legal traditions .................................................................................... 5
1.2.5
Scribal school traditions: recording of the division agreement ....................................................... 6
1.2.6
Comparison of different division agreements in Old Babylonian Larsa, Sippar and Nippur (new
perspectives?)................................................................................................................................................ 7
1.3 HYPOTHESIS ................................................................................................................................................. 7
1.4 SOURCES .................................................................................................................................................... 10
1.4.1
Primary sources............................................................................................................................. 10
1.4.2
Secondary sources......................................................................................................................... 11
1.5 METHODOLOGY......................................................................................................................................... 13
1.6 DELINEATION OF STUDY ............................................................................................................................ 16
1.7
FRAMEWORK OF THESIS ......................................................................................................................... 17
PART A ........................................................................................................................................................... 21
INTRODUCTORY SECTION: ASPECTS OF OLD BABYLONIAN LIFE ..................................................................... 21
PROLOGUE ..................................................................................................................................................... 21
CHAPTER TWO ............................................................................................................................................... 23
CHARACTERISTICS OF ANCIENT MESOPOTAMIAN (OLD BABYLONIAN) LEGAL TRADITIONS ........................... 23
2.1
INTRODUCTION ...................................................................................................................................... 23
vii
2.2
SOURCES OF PERFORMATIVE LEGAL TRADITIONS .................................................................................. 24
2.3
PROBLEMS WITH INTERPRETATION OF RECORDED LEGAL TRADITIONS TEXTS ...................................... 27
2.4
NATURE AND CHARACTERISTICS OF PERFORMATIVE LEGAL TRADITIONS .............................................. 29
2.4.1
Non-specialisation ........................................................................................................................ 30
2.4.2
Religious impact ............................................................................................................................ 31
2.4.3
Kingship and institutional enforcement ........................................................................................ 34
2.4.4
Social or group orientation ........................................................................................................... 35
2.4.5
Concrete nature of legal acts ........................................................................................................ 39
2.4.6
Status quo/static nature of legal traditions .................................................................................. 41
2.4.7
Openness....................................................................................................................................... 45
2.5
CONCLUSIONS ........................................................................................................................................ 46
CHAPTER THREE ............................................................................................................................................. 51
AGRICULTURAL AND ARCHITECTURAL ASPECTS ............................................................................................. 51
3.1
INTRODUCTION ...................................................................................................................................... 51
3.2
OLD BABYLONIAN CITY LIFE AND LANDSCAPE ........................................................................................ 52
3.2.1
Introduction .................................................................................................................................. 52
3.2.2
Old Babylonian landscape and agricultural factors ...................................................................... 53
3.2.3
Old Babylonian city life and house structures ............................................................................... 55
3.3
PRACTICAL IMPLICATIONS OF FAMILY DECEASED DIVISION AGREEMENTS ............................................ 59
3.4
EXAMPLES OF PRACTICAL IMPLICATIONS OF CITY LIFE AND LANDSCAPE ELEMENTS ............................. 62
3.4.1
Introduction .................................................................................................................................. 62
3.4.2
Division agreement between the brothers Enlil-mansum (eldest brother), Ṭab-balaṭu, Ur-ukuga
and Enlil-glazu ............................................................................................................................................ 62
3.4.3
d
-imguranni, Tarîbum and Anu-pî- Ilabrat (N1) .. 67
3.4.3.1
Background information ..................................................................................................................... 67
3.4.3.2
Outline of paternal assets distributed between beneficiaries ............................................................ 68
3.4.4
Division agreement between the brothers Bêlessunu and Hiššâ u
L2 ................................... 71
3.4.4.1 Background information ............................................................................................................................. 71
3.4.4.2 Outline of paternal assets distributed between beneficiaries of the estate by means of exchange .......... 72
3.4.5
Three recorded division agreements regarding one oral agreement (S11, S12 and S13) ........... 72
3.4.5.1 Background information ............................................................................................................................. 72
3.4.5.2 Outline of paternal estate assets distributed .............................................................................................. 73
3.5
CONCLUSIONS ........................................................................................................................................ 73
CHAPTER FOUR .............................................................................................................................................. 79
OLD BABYLONIAN SCRIBAL SCHOOL TRADITIONS .......................................................................................... 79
4.1
INTRODUCTION ...................................................................................................................................... 79
4.2
RELEVANCE AND MEANING OF RECORDINGS ON OBJECTS IN ANCIENT MESOPOTAMIA ....................... 81
4.3
PRACTICAL AND THEORETICAL MECHANISMS OF FAMILY DECEASED DIVISION AGREEMENT RELATING
TO SCRIBAL SCHOOL TRADITIONS .................................................................................................................... 83
viii
4.4
DEVELOPMENT OF SCRIBAL SCHOOLS .................................................................................................... 88
4.5
DIFFERENT APPROACHES IN THE STUDY OF SCRIBAL SCHOOLS .............................................................. 89
4.5.1
Introduction .................................................................................................................................. 89
4.5.2
Traditional approach.................................................................................................................... 90
4.5.3
Physical tablets rather than the text approach............................................................................. 92
4.5.4
Archaeological evidence ............................................................................................................... 93
4.6
PRACTICAL FUNCTION OF SCRIBAL SCHOOLS ......................................................................................... 96
4.6.1
A
šu ....................................................................................................................................... 96
4.6.2
Student-scribes (male and/or female) .......................................................................................... 97
4.7 SCRIBAL SCHOOLS: NIPPUR AND SIPPAR ................................................................................................... 99
4.7.1 Scribal Schools: Nippur ...................................................................................................................... 99
4.7.2 Scribal Schools: Sippar ..................................................................................................................... 101
4.8 CONCLUSIONS ......................................................................................................................................... 102
PART B ......................................................................................................................................................... 105
CORE SECTION: CONTENT ANALYSIS AND TYPOLOGICAL COMPARISON STUDY OF FAMILY DECEASED
DIVISION AGREEMENTS OF OLD BABYLONIAN LARSA, SIPPAR AND NIPPUR ................................................ 105
PROLOGUE ................................................................................................................................................... 105
CHAPTER FIVE .............................................................................................................................................. 107
ANALYSIS-MODEL ........................................................................................................................................ 107
5.1
INTRODUCTION .................................................................................................................................... 107
5.2
DIFFERENT METHODOLOGICAL APPROACHES ..................................................................................... 110
5.3
PRACTICAL APPLICATION OF A FAMILY DIVISION AGREEMENT IN A DECEASED ESTATE ...................... 117
5.4
MOTIVATION FOR AN ANALYSIS-MODEL .............................................................................................. 120
5.5
ANALYSIS-MODEL OF A DIVISION AGREEMENT .................................................................................... 122
5.5.1 Introduction ..................................................................................................................................... 122
5.5.2 Essential elements ........................................................................................................................... 124
5.5.2.1 E1 Family connection of beneficiaries ....................................................................................................... 124
5.5.2.2 E 2 Deceased estate owner ....................................................................................................................... 125
5.5.2.3 E 3 Estate Assets........................................................................................................................................ 125
5.5.2.4 E 4 Mutual Consent ................................................................................................................................... 126
. .2. E Raiso d’être ....................................................................................................................................... 126
5.5.3 Natural elements of an oral division agreement recorded in a written agreement ....................... 127
5.5.3.1 Nat 1 adoption/support - clause ............................................................................................................... 128
5.5.3.2 Nat 2 bringing in - clause ........................................................................................................................... 128
5.5.3.3 Nat 3 division by lots/in good will - clause ................................................................................................ 128
5.5.3.4 Nat 4 heart is satisfied - clause.................................................................................................................. 129
5.5.3.5 Nat 5 as much as there is/completely divided/from straw to gold - clause .............................................. 129
5.5.3.6 Nat 6 no claim - clause .............................................................................................................................. 129
5.5.3.7 Nat 7 oath in temple/oath - clause ........................................................................................................... 130
ix
5.5.3.8 Nat 8 preference portion - clause ............................................................................................................. 130
5.5.3.9 Nat 9 shares equal - clause........................................................................................................................ 130
5.5.3.10 Nat 10 trust (trustee) - clause ................................................................................................................. 130
5.5.3.11 Nat 11 usufruct - clause .......................................................................................................................... 131
5.5.3.12 Nat 12 witnesses - clause ........................................................................................................................ 131
5.5.4 Incidental elements in a written agreement ................................................................................... 132
5.5.4.1
Written formalities of division agreements ...................................................................................... 133
(i)
I 1 Names of Contractual Parties, rank ................................................................................................... 133
(ii)
I 2 Birth order of brothers ...................................................................................................................... 133
(iii)
I 3 Description of assets: thorough description, value ........................................................................... 133
(iv)
I 4 Special legal terms ............................................................................................................................. 134
(v)
I 5 Oath clause (king/god) ...................................................................................................................... 135
(vi)
I Wit esses’ a es, ra k/fa ily sta di g ........................................................................................... 135
5.5.4.2
Qualities of cuneiform division texts ................................................................................................ 136
(i)
I 7 Language .......................................................................................................................................... 136
(ii)
I 8 Location ............................................................................................................................................. 136
(iii)
I 9 Ta let’s o ditio .............................................................................................................................. 136
(iv)
I 10 Number of copies (agreements) ...................................................................................................... 137
(v)
I 11 Date Formula ................................................................................................................................... 137
(vi)
I 12 Seals impressions ............................................................................................................................ 138
(vii) I 13 Rhythm sequence/special style reflecting scribal school tradition within a certain city-state .......... 139
5.6 OTHER TYPES OF DIVISION AGREEMENTS: DIFFERENT MECHANISMS AND SOLUTIONS ......................... 140
5.6.1
Introduction ................................................................................................................................ 140
5.6.2
Quasi-adoption agreement ......................................................................................................... 141
5.6.3
Dissolution of a partnership ........................................................................................................ 144
5.6.4
Living estate division agreement ................................................................................................ 144
5.7
CONCLUSIONS ...................................................................................................................................... 146
CHAPTER SIX ................................................................................................................................................ 151
TERMS IN DIVISION AGREEMENTS ............................................................................................................... 151
6.1
INTRODUCTION .................................................................................................................................... 151
6.2
ESSENTIAL TERMS IN DIVISION AGREEMENTS ...................................................................................... 153
6.2.1
6.2.1.1
Ba ...................................................................................................................................................... 153
6.2.1.2
Še-ga-ne-ne-ta.................................................................................................................................. 156
6.2.1.3
I-zu-zu ............................................................................................................................................... 158
6.2.2
Inheritance share clause ............................................................................................................. 159
6.2.2.1
Ḫal-la ................................................................................................................................................. 159
6.2.2.2
Zitti .................................................................................................................................................... 160
6.2.3
6.3
Mutual agreement division clause .............................................................................................. 153
Beneficiary clause ....................................................................................................................... 161
6.2.3.1
Ibila ................................................................................................................................................... 161
6.2.3.2
Summary ........................................................................................................................................... 175
REGULAR NATURAL TERMS IN DIVISION AGREEMENTS ....................................................................... 175
x
6.3.1
Bringing in (sale) – clause (Nat 2) ............................................................................................... 175
6.3.2
Division by lots - clause (Nat 3) ................................................................................................... 176
6.3.3
As much as there is - clause (Nat 5) ........................................................................................... 179
6.3.3.1
Ga āru ............................................................................................................................................. 180
6.3.3.2
Ištu ḫurāṣum ..................................................................................................................................... 181
6.3.4
No claim - clause (Nat 6) ............................................................................................................. 182
6.3.5
Oath clause (Nat 7) ..................................................................................................................... 184
6.3.6
Preference portion - clause (Nat 8) ............................................................................................. 186
6.3.7
Equal shares – clause (Nat 9) ...................................................................................................... 191
6.3.8
Witnesses - clause (Nat 12) ....................................................................................................... 192
6.4
NIPPUR: IRREGULAR NATURAL ELEMENTS’ TERMS IN DIVISION AGREEMENTS ................................... 194
6.4.1 Introduction ..................................................................................................................................... 194
6.4.2 Adoption/support - clause (Nat 1) ................................................................................................... 194
6.5
SIPPAR: IRREGULAR NATURAL ELEMENTS’ TERMS IN DIVISION AGREEMENTS .................................... 198
6.5.1
Introduction ................................................................................................................................ 198
6.5.2
Heart is satisfied - clause (Nat 4) ................................................................................................ 198
6.5.3
Trust - clause (Nat 10) ................................................................................................................. 201
6.5.4
Usufruct - clause (Nat 11) ........................................................................................................... 202
6.6
CONCLUSIONS ...................................................................................................................................... 204
CHAPTER SEVEN ........................................................................................................................................... 211
CONTENT ANALYSIS AND TYPOLOGICAL COMPARISON OF ELEMENTS IN FAMILY DECEASED DIVISION
AGREEMENTS IN EACH OF THE CITY-STATES: LARSA, NIPPUR AND SIPPAR .................................................. 211
7.1
INTRODUCTION .................................................................................................................................... 211
7.2
LARSA (TELL SIFR): COMPARISON OF TERMS IN DIVISION AGREEMENTS ............................................. 212
7.2.1
Introduction ................................................................................................................................ 212
7.2.3
Residence and geographical background ................................................................................... 214
7.2.5
Essential elements ...................................................................................................................... 216
7.2.5.1
Introduction ...................................................................................................................................... 216
7.2.5.2
Family connection of contractual parties/co-owners ....................................................................... 216
7.2.5.3
Estate owner/ Benefactor: father / mother /other kinship relationship ........................................ 217
7.2.5.4
Estate assets: fully or partially divided .............................................................................................. 218
7.2.5.5
Mutual Consent ................................................................................................................................ 219
7.2.5.6
Raiso d’être ..................................................................................................................................... 221
7.2.5.7
Summary ........................................................................................................................................... 222
7.2.6
Natural elements ........................................................................................................................ 223
7.2.6.1
Bringing-in (Nat 2) ............................................................................................................................. 226
7.2.6.2
Division by lots (Nat 3) ...................................................................................................................... 227
7.2.6.3
Much as there is (Nat 5) .................................................................................................................... 227
7.2.6.4
No claim (Nat 6) ................................................................................................................................ 228
7.2.6.5
Oath (Nat 7) ...................................................................................................................................... 229
7.2.6.6
Preference portion (Nat 8) ................................................................................................................ 229
xi
7.2.6.7
Equal shares (Nat 9) .......................................................................................................................... 229
7.2.6.8
Witnesses (N12) ................................................................................................................................ 230
7.2.6.9
Summary ........................................................................................................................................... 230
7.2.7
Incidental elements ..................................................................................................................... 231
7.2.7.1
Introduction ...................................................................................................................................... 231
7.2.7.2
Written formalities of division agreements ...................................................................................... 232
(i) Names of contractual parties, rank ............................................................................................................. 232
(ii) Birth order of brothers ............................................................................................................................... 233
(iii) Description of assets: thorough description, value ................................................................................... 233
(iv) Special legal terms ..................................................................................................................................... 235
(v) Oath clause (king/god) ................................................................................................................................ 238
(vi) Witnesses names, rank/family standing .................................................................................................... 239
7.2.7.3
Qualities of cuneiform division texts ................................................................................................ 239
(i) Language...................................................................................................................................................... 239
(ii) Location ...................................................................................................................................................... 240
iii Ta let’s o ditio ...................................................................................................................................... 240
(iv) Number of copies (agreements) ................................................................................................................ 240
(v) Date Formula .............................................................................................................................................. 241
(vi) Seal impressions ........................................................................................................................................ 242
(vii) Rhythmic sequence: essential elements E1-5 and natural elements N1-N12........................................... 243
7.2.7.4
7.3
Summary ........................................................................................................................................... 244
NIPPUR: COMPARISON OF TERMS IN DIVISION AGREEMENTS ............................................................. 247
7.3.1
Introduction ................................................................................................................................ 247
7.3.2
Archaeological background ........................................................................................................ 247
7.3.3
Residence and geographical background ................................................................................... 248
7.3.4
Institutional background ............................................................................................................. 249
7.3.5
Essential elements ...................................................................................................................... 251
7.3.5.1
Introduction ...................................................................................................................................... 251
7.3.5.2
Family connection of contractual parties/co-owners ....................................................................... 251
7.3.5.3
Estate owner: kinship relationship .................................................................................................... 253
7.3.5.4
Estate assets: fully or partially divided .............................................................................................. 254
7.3.5.5
Mutual Consent ................................................................................................................................ 255
7.3.5.6
Raiso d’être ..................................................................................................................................... 256
7.3.5.7
Summary ........................................................................................................................................... 260
7.3.6
Natural elements ........................................................................................................................ 262
7.3.6.1
Introduction ...................................................................................................................................... 262
7.3.6.2
Adoption/support (Nat 1) ................................................................................................................. 263
7.3.6.3
Bringing-in (Nat 2) ............................................................................................................................. 263
7.3.6.4
Division by lots/in good will (Nat 3) .................................................................................................. 264
7.3.6.5
No claim (Nat 6) ................................................................................................................................ 265
7.3.6.6
Oath in temple/oath (Nat 7) ............................................................................................................. 266
7.3.6.7
Preference portion (Nat 8) ............................................................................................................... 266
7.3.6.8
Witnesses (Nat 12) ............................................................................................................................ 268
7.3.6.9
Summary ........................................................................................................................................... 268
xii
7.3.7
Incidental elements ..................................................................................................................... 270
7.3.7.1
Introduction ...................................................................................................................................... 270
7.3.7.2
Written formalities of division agreements ...................................................................................... 271
(i) Names of contractual parties, rank ............................................................................................................. 271
(ii) Birth order of brothers ............................................................................................................................... 272
(iii) Description of assets: thorough description, value ................................................................................... 273
(iv) Special legal terms ..................................................................................................................................... 275
(v) Oath clause (king/god) ................................................................................................................................ 278
(vi) Witnesses names, rank/family standing .................................................................................................... 278
7.3.7.3
Qualities of cuneiform division texts ................................................................................................ 279
(i) Language...................................................................................................................................................... 279
(ii) Location ...................................................................................................................................................... 279
iii Ta let’s o ditio ...................................................................................................................................... 279
(iv) Number of copies (agreements) ................................................................................................................ 280
(v) Date formula ............................................................................................................................................... 280
(vi) Seal impressions ........................................................................................................................................ 282
(vii) Rhythmic sequence: essential elements E1-5, and natural elements N1-N12.......................................... 283
7.3.7.4
7.4
Summary ........................................................................................................................................... 284
SIPPAR: COMPARISON OF TERMS IN DIVISION AGREEMENTS .............................................................. 288
7.4.1
Introduction ................................................................................................................................ 288
7.4.2
Archaeological background ........................................................................................................ 288
7.4.3
Residence and geographical background ................................................................................... 289
7.4.4
Institutional background ............................................................................................................. 290
7.4.5
Essential elements ...................................................................................................................... 290
7.4.5.1
Introduction ...................................................................................................................................... 290
7.4.5.2
Family connection of contractual parties/co-owners ....................................................................... 290
7.4.5.3
Estate owner/ Benefactor: father / mother / other kinship relationship ...................................... 294
7.4.5.4
Estate assets: fully or partially divided .............................................................................................. 295
7.4.5.5
Mutual Consent ................................................................................................................................ 299
7.4.5.6
Raiso d’être ..................................................................................................................................... 302
7.4.5.7
Summary ........................................................................................................................................... 304
7.4.6
Natural elements ........................................................................................................................ 305
7.4.6.1
Introduction ...................................................................................................................................... 305
7.4.6.2
Bringing in (Nat 2) ............................................................................................................................. 306
7.4.6.3
Division by lots/in good will (Nat 3) .................................................................................................. 306
7.4.6.4
Heart is satisfied (Nat 4).................................................................................................................... 306
7.4.6.5
Much as there is, completely divided (Nat 5) ................................................................................... 307
7.4.6.6
No claim (Nat 6) ................................................................................................................................ 310
7.4.6.7
Oath in temple (Nat 7) ...................................................................................................................... 312
7.4.6.8
Equal Shares (Nat 9) .......................................................................................................................... 313
7.4.6.9
Trust/Trustee (Nat 10) ...................................................................................................................... 313
7.4.6.10
Usufruct (Nat 11) ............................................................................................................................. 314
7.4.6.11
Witnesses (Nat 12) ............................................................................................................................ 315
7.4.6.12
Summary ........................................................................................................................................... 315
xiii
7.4.7
Incidental elements ..................................................................................................................... 317
7.4.7.1
Introduction ...................................................................................................................................... 317
7.4.7.2
Written formalities of division agreements ...................................................................................... 317
(i) Names of contractual parties, rank ............................................................................................................. 317
(ii) Birth Order of brothers ............................................................................................................................... 320
(iii) Description of assets: thorough description, value ................................................................................... 320
(iv) Special legal terms ..................................................................................................................................... 324
(v) Oath clause (king/god) ................................................................................................................................ 330
(vi) Witnesses names, rank/family standing .................................................................................................... 332
7.4.7.3
Qualities of cuneiform division texts ................................................................................................ 333
(i) Language...................................................................................................................................................... 333
(ii) Location ...................................................................................................................................................... 333
iii Ta let’s o ditio ...................................................................................................................................... 333
(iv) Number of copies (agreements) ................................................................................................................ 334
(v) Date Formula .............................................................................................................................................. 337
(vi) Seal impressions ........................................................................................................................................ 339
(vii) Rhythmic sequence: essential elements.E1-5 and natural elements N1-N12 .......................................... 340
7.4.7.4
7.5
Summary ........................................................................................................................................... 341
CONCLUSIONS ...................................................................................................................................... 344
CHAPTER EIGHT ........................................................................................................................................... 353
COMPARISON OF FAMILY DECEASED DIVISION AGREEMENTS ACROSS THE CITY-STATES: NIPPUR, SIPPAR
AND LARSA .................................................................................................................................................. 353
8.1
INTRODUCTION .................................................................................................................................... 353
8.2
ESSENTIAL TERMS IN DIVISION AGREEMENTS ...................................................................................... 354
8.2.1
Introduction ................................................................................................................................ 354
8.2.2
Family connection of the contractual parties or co-owners ...................................................... 354
8.2.3
Estate owner/ Benefactor: father/mother/other kinship relationship ...................................... 355
8.2.4
Estate assets: fully or partially divided ....................................................................................... 356
8.2.5
Mutual Consent........................................................................................................................... 356
8.2.6
R
8.2.7
Summary ..................................................................................................................................... 359
8.3
d’ê
............................................................................................................................... 357
NATURAL ELEMENTS ............................................................................................................................ 361
8.3.1
Introduction ................................................................................................................................ 361
8.3.2
Adoption/support (Nat 1) ........................................................................................................... 362
8.3.3
Bringing in (Nat 2) ....................................................................................................................... 362
8.3.4
Division by lots (Nat 3) ................................................................................................................ 363
8.3.5
Heart is satisfied (Nat 4) ............................................................................................................. 363
8.3.6
As much as there is (Nat 5) ......................................................................................................... 364
8.3.7
No claim (Nat 6) .......................................................................................................................... 364
8.3.8
Oath in the temple (Nat 7) .......................................................................................................... 365
8.3.9
Preference portion (Nat 8) .......................................................................................................... 365
xiv
8.3.10
Equal Shares (Nat 9) ............................................................................................................... 365
8.3.11
Trust/Trustee (Nat 10) ........................................................................................................... 366
8.3.12
Usufruct (Nat 11).................................................................................................................... 366
8.3.13
Witnesses (Nat 12) ................................................................................................................. 367
8.3.14
Summary ................................................................................................................................ 368
8.4
INCIDENTAL ELEMENTS ........................................................................................................................ 370
8.4.1
Introduction ................................................................................................................................ 370
8.4.2
Written formalities of division agreements ................................................................................ 371
8.4.2.1
Names of contractual parties, rank ................................................................................................... 371
8.4.2.2
Birth order of brothers (implied/ implicit) ........................................................................................ 371
8.4.2.3
Description of assets: thorough description, value ........................................................................... 371
8.4.2.4
Special legal terms ............................................................................................................................ 372
8.4.2.5
Oath clause (king/god) ...................................................................................................................... 373
8.4.2.6
Witnesses names, rank/family standing ........................................................................................... 373
8.4.3
8.4.3.1
Language ........................................................................................................................................... 374
8.4.3.2
Condition of the tablets .................................................................................................................... 374
8.4.3.3
Number of copies (agreements) ....................................................................................................... 375
8.4.3.4
Date formula ..................................................................................................................................... 375
8.4.3.5
Seal impressions ............................................................................................................................... 375
8.4.4
8.5
Qualities of cuneiform division texts ........................................................................................... 374
Summary ..................................................................................................................................... 375
CONCLUSIONS ...................................................................................................................................... 377
CHAPTER NINE ............................................................................................................................................. 387
FINAL SUMMARY AND CONCLUSIONS ......................................................................................................... 387
9.1
BACKGROUND ...................................................................................................................................... 387
9.2
MAIN FINDINGS .................................................................................................................................... 395
9.2.1 Comparisons of different elements of the said agreements in each of the city-states of Larsa, Nippur
& Sippar..................................................................................................................................................... 395
9.2.1.1
Introduction ...................................................................................................................................... 395
9.2.1.2
Summary of essential elements ........................................................................................................ 395
9.2.1.3
Summary of natural elements .......................................................................................................... 397
9.2.1.4
Summary of incidental elements ...................................................................................................... 399
9.2.2
9.3
Final Findings .............................................................................................................................. 400
SUMMARY OF CONTRIBUTIONS ........................................................................................................... 406
9.3.1
Different perspectives of division agreements in Larsa, Sippar and Nippur ............................... 406
9.3.2
Development of analysis-model .................................................................................................. 406
9.3.3
Analysis-model ......................................................................................................................... 406
9.3.4
Motivation for analysis-model .................................................................................................... 407
9.3.5
Evolutionary stages in practice in the development process of a division agreement................ 408
9.3.6
Practical problems encountered by contractual parties in the conclusion of a agreement ........ 408
9.4
POSSIBILITIES FOR FUTURE STUDY ....................................................................................................... 409
xv
LIST OF ABBREVIATIONS USED IN THE BIBLIOGRAPHY ................................................................................. 411
BIBLIOGRAPHY ............................................................................................................................................. 413
xvi
LIST OF TABLES
Table 1 Allocation of portions ................................................................................................. 65
able
utline of awarded portions of brothers S n-imguranni eldest , ar bum and
nu-
p - Ilabrat .................................................................................................................................. 69
able
utline of awarded portions of brothers B lessunu and išš tum........................... 72
Table 4 utline of awarded portions of brothers Sin-iḳ šam, Ibni-ṣamaš and Irra-nâ ir ...... 73
Table 5 Outline of classification of elements of family deceased division agreement .......... 123
Table 6 Outline of essential elements of all division agreements .......................................... 204
Table 7 Outline of the natural elements of all the division agreements................................. 206
Table 8 Outline of essential elements of Larsa division agreements ..................................... 222
Table 9 Outline of division of assets of Lipit-Ištar, Apil-ilišu, pīl-Sîn and ṣamaš-m gir .. 224
Table 10 Outline of the natural elements of Larsa division agreements................................ 231
Table 11 Outline of the incidental elements of Larsa division agreements ........................... 244
Table 12 Outline of the essential elements of Nippur division agreements .......................... 260
Table 13 Outline of the natural elements of Nippur division agreements ............................. 269
Table 14 Outline of the incidental elements of Nippur division agreements ........................ 285
Table 15 Outline of the essential elements of Sippar division agreements ........................... 304
Table 16 Outline of the natural elements of Sippar division agreements .............................. 316
Table 17 Outline of oath clause in Sippar division agreements............................................. 331
Table 18 Outline of witnesses clause in Sippar division agreements .................................... 332
Table 19 Outline of conditions of Sippar tablets ................................................................... 334
Table 20 Outline of the incidental elements of Sippar division agreements ......................... 342
Table 21 Abridged comparison table: essential elements of all three city-states .................. 345
Table 22 Abridged comparison table: natural elements of all three city-states ..................... 346
Table 23 Abridged comparison table: incidental elements of all three city-states ................ 348
xvii
LIST OF ILLUSTRATIONS (FIGURES)
Figure 1 Framework of thesis .................................................................................................. 18
Figure
Presentation of
ouse I Stone & Stone 1981 1 with researcher’s inclusions of
different portions awarded to the contractual parties ............................................................... 65
Figure 3 Photograph from west of House I (Stone & Stone 1981:21 Plate II) ........................ 66
Figure 4 Schematic outline of field division of brothers S n-imguranni eldest , ar bum and
nu-p -dIlabrat ......................................................................................................................... 70
Figure
Schematic outline of house division of brothers S n-imguranni (eldest), Tarîbum
and Anu-pî-dIlabrat .................................................................................................................. 70
Figure 6 Schematic outline of division of fields of brothers B lessunu and išš tum ........... 71
Figure 7 Schematic outline of division of house of brothers B lessunu and išš tum ........... 71
Figure 8 Schematic outline of texts S11, S12 & S13 family members.................................... 73
Figure 9 Schematic outline house division of brothers in texts S11, S12, S13 ...................... 73
Figure 10 Schematic explanations of division agreement elements as a house ..................... 109
Figure 11 Outline of the evolutionary process of the family deceased division agreement .. 118
Figure 12 Schematic family outline of N5 division agreement ............................................. 258
Figure 13 Schematic outline of philosophy, management of division and scribal school
traditions of Larsa, Nippur and Sippar ................................................................................... 378
Figure 14 Schematic outline of all the elements:differences and similarities ....................... 381
Figure 15 Schematic outline reflecting similarities and differences in accordance with the
analysis-model ....................................................................................................................... 402
xviii
CHAPTER ONE
INTRODUCTION
1.1 BACKGROUND INFORMATION
In the legal corpora of cuneiform texts, the recorded family division agreement in a deceased
estate emerged.1 This division agreement varied in simplicity and complexity, and has not
been fully understood by present-day scholars. Like other textual sources of the Old
Babylonian period, extracting its meaning and purpose was hampered, due to the threedimensional features of its recording on the clay tablet and its interpretational problems. 2 The
background section provides the different terms and/or expressions assigned to a division
agreement, followed by an example of the practical mechanisms regarding a family division
agreement in a deceased estate.
1.1.1
Different terms or expressions assigned to the family division agreement
The terming of this agreement is problematic. This agreement is utilised in the administration
of deceased estates in different countries and law “systems” all over the world, irrespective of
time or place, with the same reason for commencement – namely, the dissolution of coownership and some solutions of dissolution (cf. Appendix K).
In contemporary law, different terms and/or expressions have been assigned. For example, in
South African law this agreement was labelled a family agreement in the nineteenth century,
1
For instance, in South African law, South African jurists have a certain perception of the historical
development of redistribution agreements (for the sake of convenience referred to here as division agreements).
South African jurists consider Roman-Dutch law as the common law source for division agreements.
Interestingly, the mechanisms used in the old Babylonian family deceased division agreement are the same as
those in the “redistribution” agreements in South frica. See Appendix K in volume 2 for a synoptic discussion
of the historical development of the division agreement from Roman-Dutch law to the South African
redistribution (division) agreement, with some remarks regarding the similarities with the old Babylonian
division agreement. The question remains whether these similarities are indicative of a collective consciousness
or of a reception of law, i.e., the application of law rules and principles with a historical connection.
2
Cf. Malul (2002) who discusses writing and refers to the qualities and paradigm of thought in this
medium of communication. According to Malul (2002:38), “Writing is a graphic reflection or representation of
language” as well as a “technical medium of graphic signs and symbols”. Because of this, there is a “loss of
information in all the fine unique qualities of the communication process”. he features lost are “pitch, tone,
color of choice, accompanying conscious and unconscious body language”. ameeuw & Willems 011 16
surmise that the cuneiform tablets are three-dimensional objects on which scribes wrote on all six sides. The
scribes made incisions on the unbaked clay tablet using a triangular-shaped stylus. Horizontal and vertical
wedges on the clay made the signs complex Charpin 010b 7 . “It is the play of shadow and light that makes
the written signs visible, and lighting from the left is necessary if the signs are to be read accurately” Charpin
2010b:7).
1
and is referred to today as a redistribution agreement, as reflected in court cases and
legislation.3 In other countries today, it is categorised as a division-, distribution- or partition
agreement. In Hindu Law, it is considered a partition.4
In addition, in ancient Near Eastern studies, different terms and/or expressions have been
assigned - for example, division agreement, partition agreement, partition or allotment.
The different terms and/or expressions are probably the result of different scholarly influences
on the terminology used in legal systems in different times and places.
For purposes of this thesis, the expression assigned to this agreement is a “division
agreement”, bearing in mind that in any further study or research of the agreement other
scholars may use different terms and/or expressions.5
1.1.2
What is an Old Babylonian family deceased division agreement? An example
What an Old Babylonian family deceased division agreement entails is explained in a
simplified example: An estate owner dies; his estate consists of fields, implements, stock and
slaves. His three sons, as beneficiaries in accordance with their inheritance, each receive a
third share in undivided ownership in the bequeathed property. One son is a merchant,
another a priest, and the youngest a farm manager who assisted his late father on the farm.
The youngest beneficiary wishes to inherit the farm to continue his dream and aspirations as a
farmer. The other two brothers/beneficiaries have no intention of farming. The problem is
how the three beneficiaries will manage co-ownership of the fields, implements, stock and
slaves in three undivided shares. The youngest beneficiary cannot farm for his own pleasure,
as he needs to earn a living.
owever, he is using the other two beneficiaries’ undivided
shares to fulfil his dream of farming. Therefore, sometimes co-ownership is considered as:
“that mother of disagreement and of carelessness”.6
3
Cf. Claassens (2004-2005).
Cf. Mitra (2010:63-133).
5
However, this does not solve the problem of studying it, as reflected in the textual sources of the old
Babylonian Period (including other periods in the ancient Near East). The written agreement inscribed on a clay
tablet and compared to present-day law and succession law was studied with care by not superimposing presentday scientific framework on the framework of the old Babylonian oral legal transactions, especially the
recording thereof and the meaning of the oral and written legal transactions of the old Babylonians. Cf. Malul
(2002).
6
A comment in hindsight by Voet (1955:2.32), a seventeenth century jurist, regarding division agreements:
4
2
For the three beneficiaries to escape the perils of co-ownership, they can sell the asset/s and
divide the proceeds into one-third shares. This will result in the alienation of the corpus of the
asset/s.
Alternatively, they can retain ownership and escape some of the problems of co-ownership by
leasing the asset/s, thereby sharing in the proceeds of the rental income.
As a third option, the brothers/co-owners can decide by means of a division agreement to
award the fields, implements, stock and slaves to the youngest beneficiary who wishes to
continue farming. With the awarding of the farm, the other two brothers can then either
receive other estate asset/s in sole ownership, equal to the monetary value of the farm, which
constitutes an exchange, or they can donate the farm to the youngest sibling. As a third
alternative method of division, the youngest son can “pay” his brothers “out” a sum of money
to the value of the asset/s with which he has been enriched. To accomplish this, he uses his
personal asset/s, money or goods to “purchase” a communally-shared asset. Consequently, the
youngest brother “brings-in” money, or in other words “buys” an asset, of which he becomes
sole owner.
This example reflects some of the dynamics of recorded division agreements in the Old
Babylonian period.
Thus, in essence, through the means of a division agreement the
communally-shared assets are reshuffled by means of a sale, a donation and/or an exchange. 7
It was a practical solution for beneficiaries in a deceased estate, to avert undesirable
consequences and situations of co-ownership resulting from a common inheritance property,
with the aim of enjoying the benefits of sole ownership.
1.2
RESEARCH QUESTIONS
In the ancient Near East, more specifically in Old Babylonian Nippur, Larsa and Sippar, the
division agreement is identified in the legal cuneiform corpus as an agreement between
Voet (1955:2) gives a synoptic outline of the aspects of co-ownership and discusses the named Roman legal
notion of the Judicium Familiae Eriscundae that can be translated in the widest context as the division of a
family estate or inheritance. oday in South frican Law, Voet’s notes on division agreement constitute one of
the South African law sources in division agreements (redistribution agreements). (Cf. Claassens 2004-2005).
7
he concept of “reshuffling” comes from the South frican law case regarding a division agreement,
Klerck, NO v Registrar of Deeds 1950 1 SA 81 (T) wherein the learned judge Clayden notes that there was
“some sort of reshuffle of assets in the estate” with the implementation of a division agreement.
3
beneficiaries/heirs.
The agreement prima facie may appear simple, as illustrated in the
example, that it is a family agreement deriving from a deceased estate and that some division
of inheritance property took place.
However, the agreement contains many particulars,
intrinsic components and mechanisms, with discrepancies in a city-state and across different
city-states, which may unfortunately escape or even elude us. The re-examination of this
agreement has been proven to constitute a complex legal notion. The main questions that
ensued from this re-examination are:
What is a division agreement?
division agreements?
agreement?
factors, as well as family circumstances to overcome?
the chosen city-states (in the recording of the agreement)?
Which components of the agreement make it unique in relation to other prima facie
Where there different law practices and influences of legal traditions utilised in the
Are there in a division agreement practical problems, environmental and architectural
Where there influences by scribal school traditions and any scribal school discrepancies in
Are there new perspectives regarding the parties involved, in the management of
organisation of division processes and mechanisms used by contractual parties in a
deceased family division agreements, in each city-state, and in comparison between the
given city-states?
These questions are outlined in the following main groups, with their sub-categories.
1.2.1 What is a division agreement?
As a complex legal notion, what does this family division agreement from a deceased
estate entail?
connection; and which family members are involved in the agreement?
Does the deceased owner of the estate and the involved parties have a biological family
Are there different stages culminating in a final stage of the conclusion of the agreement?
inheritance, sharing in co-ownership and finally concluding the division agreement?
Does each party have any rights and obligations at any each given stage with receiving the
What is the type of ownership that the involved parties had?
4
What type of ownership over the inheritance does it entail: undivided ownership or
ownership wherein each beneficiary may alienate his/her share at free will?
In the case of the latter, is each involved party allowed to use, transfer or forfeit his/her
share, without the approval or agreement of the other parties? If in the affirmative, and a
party forfeited his/her share in a field, what if it is the best portion of the field and this is
then to the disadvantage of the other parties? Alternatively, how can one party of a group
of three parties practically succeed in selling his/her one-third share of an inherited ox or
slave, without the other two parties also alienating their shares?
Under what circumstances and reasons is the division required?
What are the division agreement’s different components and mechanisms˹
What types of inheritance assets are divided? Which assets are included in the division
agreement only the estate owner’s inheritance to his or her beneficiaries?
Are the
involved parties’ own sole assets allowed to be included in an agreement, to constitute a
buying of an asset?
1.2.2 Uniqueness of the agreement
Are there other types of division agreements in Old Babylonian legal traditions?
has to have, in order to qualify as a division agreement?
Are there specific elements that only a family division agreement from a deceased estate
Are there differences regarding its mechanisms and aims that a family division agreement
from a deceased estate have, to distinguish it from other similar types of division
agreements?
Does each type of agreement reflect different constructions and solutions?
Does each type of division agreement have its own unique specific aim and end result/s?
1.2.3 Different law practices and legal traditions
Were there different legal practices in each city-state and across the city-states?
the parties involved?
How were these legal practices utilised to the benefit of, and in mutual agreement with,
What contractual terms were employed by the involved parties which benefit them all,
thus achieving a fair and equitable deal for each one?
5
1.2.4 Practical problems, environmental and architectural factors, as well as family
circumstances
What practical problems and family circumstances appeared during the lengthy
discussions between the contractual parties?
Did the family situation play any role in influencing the involved parties to devise the
division?
For instance, were there only certain family members allowed or involved in division
agreements? Did the eldest son play a role in the succession rule of receiving a greater
share, even with a division agreement, etcetera?
Did the agricultural and architectural factors and elements have any influence on the
involved parties’ decision to divide the inheritance assets?
For example, how did the involved parties manage to decide to plot out a field in viable
economic pieces?
In the instance of a house where the rooms were divided into smaller “houses”, what if
one room consisted of a bakery (oven and this enhanced the room’s value apart from the
others: how will the parties managed to divide up the house, fairly and equally so that they
all agree to the terms?
1.2.5 Scribal school traditions: recording of the division agreement
What was the influence and extent of scribal school education and traditions in the
recordings of the agreement by the scribe?
Were there patterns of scribal school traditions regarding a city-state, or random
approaches to draw up an agreement, irrespective of form and style, with no or less
influence from the scribe’s scribal school training, except for the scribe’s ability to record
the agreement on a clay tablet?
Were there differences and/or similarities in the scribal school traditions across the city
states that are evident in the scribe’s idiosyncratic style of recording? This includes, for
example: the traditional practices, the influences of the school regarding the description of
the agreed terms, emotional expressions, the scribe’s focus on detail, etc.
6
1.2.6 Comparison of different division agreements in Old Babylonian Larsa, Sippar
and Nippur (new perspectives?)
When looking at a content analysis using a typologically-designed methodology regarding the
agreement between the said city-states, it raises the following questions:
Were there specific procedures involved in each city-state?
Did each city-state exhibit differences regarding its choice of legal practices?
Were there common characteristics present, regarding the implementation of these legal
practices?
Were there some influences and visibility of the multi-sensory communication and
symbolic acts in the recorded division agreements?
Were there in Larsa, Nippur and Sippar differences in their general philosophical outlook:
some form of creativeness in problem-solving,
or traditional and procedural approaches in the problem-solving of the division of
communal shared inheritance?
Regarding the management of the division: were there regional differences in the
contractual parties’ actions in the division?
What can these differences and similarities in a comparison study show us in the final
conclusive results about the division and even about the way of doing things regarding a
division agreement in the chosen Old Babylonian city-states?
1.3 HYPOTHESIS
In the ancient Near East, more specifically in Old Babylonian Nippur, Larsa and Sippar, the
division agreement is identified in the legal cuneiform corpus and considered by scholars as
an agreement between beneficiaries/heirs. Nevertheless, there seems to be more to this
agreement. It appears to be a complex legal notion encompassing intrinsic components,
including a unique organisation of division processes and mechanisms, Therefore, it needs to
be re-examined, to show in a content analysis using a typologically comparison study new
perspectives regarding the parties involved, in their management of practical problems,
implementation of chosen law practices, and influence by scribal school traditions.
The process of the conclusion of a division agreement starts when a benefactor, the estate
7
owner, dies and his family members, as a rule of succession tradition, inherit their inheritance.
This inheritance was bequeathed to a group of beneficiaries or heirs, who became cobeneficiaries regarding a part or the whole of the deceased’s estate assets.
he beneficiary, in
his capacity as co-beneficiary, has certain rights and obligations regarding his/her share in the
inheritance. The beneficiaries as a group were allowed by mutual agreement to use, transfer
or forfeit their inheritance shares.
Subsequently, there was a second stage, in the period after the transfer of the inherited shares
to the beneficiaries, and before the conclusion of the division agreement. In the second stage,
the beneficiaries enjoyed co-ownership of the communally-shared, inherited assets. As coowners they mutually agreed to manage, use and contribute to costs of maintenance, regarding
the communally-shared inheritance. Each has an entitlement to a pro-rata share of the income
from the communally-shared inheritance. One must bear in mind that the beneficiaries, now
co-owners, were related to one another in a kinship group, either by biological or contractual
connection – normally as siblings. During this stage, if they disagreed, it could have affected
their family relationship with each other. Consequently, if the co-owners at any given stage
wished to discontinue their involvement in the communally-shared inheritance, they have one
solution as an option: namely, the conclusion of a division agreement.
In this third stage, during contractual negotiations to conclude the division agreement, the coowners acted as contractual parties. Through lengthy discussions, they needed to agree to
contractual terms that benefited them all, achieving a fair and equitable deal for each one.
Consequently, to escape the perils of co-ownership, the co-owners decided by oral agreement
and through negotiations to “trade” their rights in the inherited assets to a certain extent.
Potentially, by choice between beneficiaries in one agreement, at least one or some of all three
legal constructions occurred: namely, a sale, exchange and donation.
These different
constructions reflected the uniqueness of the solutions of each agreement and served to a
certain extent as indicators of the specific legal practices of a certain city-state, and the special
circumstances of each family involved.
It seems that, apart from this agreement, there were other types of division agreements found
in the dissolution of partnerships, living estate owners’ estates and quasi-adoption
agreements. Prima facie, they function as the same type of agreement, as all of these types of
8
agreements have one characteristic in common: namely, the dissolution of co-ownership.
However, they have different mechanisms and final additional purposes to achieve.
Furthermore, during this division process of negotiations and final agreement, there appeared
legal practices defining the practical procedures taken to divide the communally-shared
inheritance.
These legal practices further assisted in regulating the actions of division,
outlining the formalities, implementation and enforcement of the agreement, including
conditions and provisions, which the contractual parties deemed necessary.
The legal
practices’ differences and similarities, if any, in the practising of the legal traditions in each
city-state in isolation and across the three city-states of Larsa, Nippur and Sippar, are
examined and outlined.
Additionally, these legal rules and practices have to be understood against the background of
the characteristics of ancient Near Eastern legal traditions. These characteristics served as a
reflection and influence on the mechanisms and solutions of Old Babylonian family deceased
division agreements, as a consensual agreement between contractual parties, and gave some
insight into the concept of inheritance law tradition and co-ownership.
Also, recognition is given to the fact that, in the conclusion of the agreement, a human
component was present: the parties had to agree to the division of the communally-shared
assets, though as co-owners in stage two they could not manage to work together. Now in
the third stage, as contractual parties, they were required to work together, finding a way to
agree mutually how to divide the communally-shared assets into economically-viable pieces
of sole ownership. Hence, sole ownership regarding the awarded assets was assigned to the
receiver contractual party, while the other contractual parties alienated their once co-owned
assets to the receiver contractual party. Nevertheless, the communally-held inheritance might
consist of estate assets with sentimental and monetary value, which needed to be alienated, to
receive other asset/s in sole ownership. These estate assets normally consisted of fields,
gardens, houses and/or some moveable property. Agricultural and architectural factors and
elements, together with the family situation, might play a role in influencing the contractual
parties to devise the division.
When the contractual parties finally agreed to the terms, the chosen agreed terms and details
of the contractual parties, or in some cases only one contractual party, regarding the agreed
9
oral family deceased division agreement may be recorded on a clay tablet as documentary
evidence. The significance of recorded Old Babylonian division agreements in the scribal
school traditions and the schools’ practical functions, are explored. However, the greater part
of the oral division agreement pertaining to the background and minute details were not
reflected on the clay tablet; the recording reflected only the scribe’s own idiosyncratic style,
and which agreed terms and details he/she chose to be captured on a clay tablet.
In studying the forty-six division agreements, problems need to be overcome regarding the
interpretation of the clay tablet texts with regard to their intrinsic details. It seems there were
some unique law practices and scribal school traditions in relation to a particular city-state, as
well as between city-states, reflecting different formalities, implementation and enforcement
in the conclusion of agreements.
Consequently, it seems that the recorded details and interpretations regarding the forty-six
division agreements reflect the meaning and consequences of the agreement as a successful,
timeless, estate administration tool. It is shown that the essence of the division agreement was
to find a practical solution for beneficiaries in a deceased estate, in order to avert undesirable
consequences and situations of co-ownership resulting from a common inheritance property,
and to be able to reap the benefits of sole ownership.
1.4 SOURCES
The study revolves mainly around a content analysis of the preserved, written and recorded
division agreements in the three city-states mentioned. This is a study of the primary text
sources in order to reach quantitative and qualitative conclusions. In addition, a literature
review of books and journal articles is undertaken to corroborate and explain aspects of the
family deceased division agreements in the introductory section and in certain parts of the
core section.
1.4.1
Primary sources
The comparative study is typological8 and division agreement texts in Larsa: Charpin (1980)
“ he biblical and/or ancient Near Eastern comparative scholar applying the typological approach uses
evidence from one culture for illuminating another culture and understanding it better, or for demonstrating
certain institutions and underlining certain beliefs and principles” Malul 1990 17 . Cf. Malul (1990) regarding
8
10
and
ndersson
008 ; Nippur
’Callaghan 19 4 , Chiera (1922), Hilprecht (1909), Stone
& Owen (1991); and Sippar: Schorr (1913), Dekiere (1994a, 1994b, 1995), Goetze (1957),
Pinches (1888) and Duncan (1914) are compared in terms of the “analysis-model” design to
place the different components of each agreement into categories for analysis.
Forty-six chosen division agreements of Larsa, Nippur and Sippar originate from different
Old Babylonian time-periods. Larsa consists of ten chosen division agreements from the
Larsa Dynasty during the reigns of Rīm-Sîn I, Rīm-Sîn II until the First Dynasty of Babylon
during the reigns of
ammu-r pi and Samsu-iluna. Nippur’s ten division agreements include
the First Dynasty of Isin under the reign of Damiq-ilīšu, the Larsa Dynasty from Sin-iqišham,
Rīm-Sîn I, Rīm-Sîn II and the First Dynasty of Babylon during the reign of Samsu-iluna.
Lastly, twenty-six division agreements deriving from Old Babylonian Sippar are discussed,
and include the time-period of the Larsa Dynasty during the reign of Sîn-iddinam and the
greater part of texts in the First Dynasty of Babylon during the reigns of
pīl-Sîn, Sîn-
muballi , ammu-r pi, Samsu-iluna and mmī- aduqa.9
1.4.2
Secondary sources
For the terminology10 of the division agreements, the lexicons of Sjöberg (1984); PSD; CAD
and Black, George & Postgate (1999) are used. Some secondary literature and scholarly
contributions are provided, such as Duncan (1914); Magnetti (1979); Porter (2002);
Mendelsohn (1959); Frymer-Kensky (1981); Postgate (1992); Harris (1992); Leemans (1954);
Moldenke (1893); Westbrook (1991) and Schorr (1913).
In the background study of Old Babylonian life pertaining to family deceased division
agreements, secondary literature is used.11 References to scholars regarding the general topics
the typological versus historical approach.
9
ll of the kings’ names are based on the font style used by Frayne 1990 . In Chapter 7 of Part B, the text
agreements reflected in Part C regarding Larsa, Nippur and Sippar are discussed and compared for each citystate. The same primary texts are used in Chapter 8 as a geographical comparison for city-states versus citystates, followed by the final conclusion. Part C serves as a reference. The dates of the reigns of the kings are
reflected in Addendum. For ease of reference the dates are as follows: For ease of reference the dates are as
follows mmī- aduqa (1646-1626), Damiq-ilīšu 1816-1794 Rīm-Sîn I (1822-176 , Rīm-Sîn II (1741-1740),
ammu-r pi 179 -1750), Samsu-iluna (1749-1712), Sîn-muballi (1812-1793), Sin-iqišam 1840-1836) and
Sîn-iddinam (1849-1843).
10
Core section of the thesis, Part B in Chapter 6.
11
Supporting Part B (the core section) and Part C (the reference section), the introductory section, Part A,
consisting of Chapters 2-4, offers a background study of old Babylonian life pertaining to family deceased
division agreements.
11
of discussion in the different chapters are made in footnotes. Emphasis is placed on the
characteristics of ancient Mesopotamian law traditions, the agricultural and architectural life
and landscape, as well as the scribal traditions.
Regarding characteristics of ancient Mesopotamian law traditions, scholars’ views of the
different aspects of law traditions are outlined.12 Characteristics of ancient Mesopotamian
traditions discussed are (1) non-specialisation, (2) religious impact, (3) kingship and
institutional enforcement, (4) group or social orientation, (5) the concrete nature of legal acts,
(6) the status quo/static nature of law traditions and (7) openness.
With regard to (1) non-specialisation, references are made to Myburgh (1985) and Hibbits
(1992). With regard to (2) religious impact, scholarly contributions include Sassoon (2001);
Nel (1994); Zaccagnini (1994); Price (1932); Boecker (1980) and Lemche (1979). Kingship
and institutional enforcement (3) is discussed by Postgate (1992). As far as group or social
orientation (4) is concerned, contributions by Frymer-Kensky (1981); Leemans (1954);
Forster (1995) and Fleishman (2001) are outlined. As regards (5) the concrete nature of legal
acts, scholars such as Hibbits (1992); Smith & Weisstub (1983); Malul (1988); Kruger (1998)
and Sassoon (2001) are discussed. With respect to (6) the status quo/static nature of law
traditions, scholars’ viewpoints are divergent, and include Westbrook’s 1994 scientific
treatise-theory and Renger’s 1979 Rechtskreis-theory, supporting the status quo/static
presence in ancient Mesopotamian law traditions. Commentaries to Westbrook’s viewpoints
are outlined by scholars such as Greengus (1994); Buss (1994); Levinson (1994); Lafont
(1994); Matthews (1994) and Patrick (1994). Lastly, (7) openness is discussed with reference
to Veenhof (2003) and Gelb (1948).
Concerning agricultural and architectural landscape and city life, 13 secondary literature is
presented by Liverani (1996); Harris (1963) (1975); Leick (2001); Gruber (1948); Flannery
(1965); Oats (1990) and Van de Mieroop (1997). Stone & Stone (1981); Stone (1987);
’Callaghan 19 4 ; Charpin 1980 and Schorr 191
explain examples of family division
agreements.
12
13
This is discussed in Chapter 2.
Chapter 3.
12
In the study of scribal traditions,14 secondary sources of scholars on the physical tablets and
typology and the archaeological evidence apply Robson’s
001 categorisation, namely the
traditional studies of scribal training; the recent focus. Kramer (1962); Lukas (1979); Driver
& Miles (1952); Pearce (1995); Meier (1991); Falkenstein (1953) and Sjöberg (1976) outline
the traditional studies of the school life. The studies of scribal schools by Tinney (1998,
1999); Veldhuis (1997; 1997-98; 2000); Delnero (2010) and Gesche (2000) are described.
These scholars focus on physical tablets and not on the texts. Various contributions present
archaeological evidence. Robson (2001) discusses scribal training in Nippur; Charpin (1986)
and Brusasco (1999-2000) discuss scribal training in Ur; Delnero (2010) investigates the
archaeological evidence for scribal education in the Mesopotamian cities of Isin, Kish,
Babylon, and Uruk; Tanret (2002) studies the gala-ma s’s house in Sippar
mm num; and
Stone (1987) studies certain houses and scribal activities in Nippur.
1.5 METHODOLOGY
In the methodology chapter, the different methodological approaches of scholars such as
Goetze (1949); Bottéro (1992); Westbrook (1995); Roth (2001); Jackson (1980); Malul
(1988), (1990) and Hibbits (1992) serve as a background for the newly-developed
methodology, namely the analysis-model.15
In order to study the details, mechanisms and solutions of a prima facie family deceased
division agreement, a specific methodological approach needed to be chosen and devised. An
analysis-model serves as a simplification in the analysis of such agreements, for a specific
methodology is needed to capture this complex legal notion, and then by a typological
comparison compare the forty-six division agreements.16
The developed content analysis17 of the family deceased division agreements of Old
Babylonian Larsa, Nippur and Sippar systematically divides the agreement into groups that
have in common a number of obligatory, essential elements, but that differ in respect of
natural and incidental elements.18
he researcher provides an outline of this model’s
14
Chapter 4.
As discussed in Chapter 5, the analysis-method.
16
Part B, Chapters 6-8, provide an exposition of the analysis-method and comparison study of the forty-six
chosen division agreements.
17
his method is coined an “analysis-model”.
18
Van der Merwe (2007:282-285) discusses present-day contract law definition and application of the
15
13
categories and sub-categories. Reasons for the development of the analysis-model – which
focuses specifically on family deceased division agreements rather than on other types of
division agreements – are furnished from division texts, as well as the relevant discussions of
Stone & Owen (1991), Chiera (1922) and Duncan (1914).
The essential or obligatory elements are the framework and qualification requirements for a
family deceased division agreement. Within this framework the concepts, terms and elements
of the agreement are categorised as natural and incidental elements. Obligatory or essential
elements are the following:
1. Family connection: There exists a family and kinship connection between the beneficiaries
and the estate owner, then in their capacity as co-owners and finally in their capacity as
contractual parties in the conclusion of the agreement.
2. Deceased estate owner: The estate owner left at the time of his death some or all of his
estate assets to more than one beneficiary. A division agreement can be set in place only if
there is a deceased estate owner and more than one beneficiary.
. Estate assets
he estate assets are the deceased estate owner’s assets. With the
devolvement of assets to the beneficiaries, they will become co-owners of the deceased
owner’s assets. hese estate assets can consist of houses, fields, or moveable property, and
include the whole of the estate or part thereof. In some instances assets, excluding the
deceased estate assets, belonging to the beneficiaries/co-owners from their personal estates,
may be brought in to assist with an equalisation or re-shuffling of the bequeathed
communally-shared property.
4. Mutual consent: All the co-owners/contractual parties reach a consensus regarding the
named essentialia, naturalia and incidentalia. These elements are used today “to achieve certainty and economy
of concepts”, and date back to the Middle ges Van der Merwe 007 8 . Essentialia is essential to the
“classification of a contract belonging to a particular class of contract” Van der Merwe 007 82). It is not
required to validate any contract and may be another contract with the absence of some of the essential elements
(Van der Merwe 2007:282-283). The naturalia “help to determine the rights and duties of contracting parties and
the effects and consequences of their contracts” Van der Merwe 007 8 . he incidentalia are “special
requirements” in addition to essentialia and naturalia (Van der Merwe 2007:284). Thus, these are
supplementary or additional terms to the contract (van der Merwe 2007:284). In this study the essentialia,
naturalia and incidentalia terms are not used, however in a certain extent, according to their implicit meaning or
intention in the South African law context.
14
reshuffling of the deceased estate assets for the contract to be legally binding.
5. Raison d’êtr˹: There exists a reason for the conclusion of a division agreement. The
general solutions to absolve the problems with co-ownership normally entail a typical sale,
donation or exchange.
Apart from the obligatory or essential elements and consequences deriving from a division
agreement, there are legal practices forming part of an oral division contract – the named
natural elements. These are set forth by contractual parties via a recorded agreement in
accordance with different law traditions. The natural elements will vary from city-state to
city-state, with the occurrence of some small variations within a city-state. The legal practices
identified as reflected in the clay tablet, were as follows: adoption / support, bringing in /
equal shares, division by lots, “heart is satisfied”, “as much as there is” / completely divided /
“from straw to gold”, no claim, oath in temple / oath, preference portion, sanction clause,
trust (trustee), usufruct and witnesses.
Incidental elements reflect the scribe’s style and scribal traditions written formalities , as
well as the qualities of the recorded division text on a clay tablet. These categories of
incidental elements were placed under two categories: firstly, the written formalities, which
include names of contractual parties, birth order, and description of assets (thorough
description, value), special legal terms, sanction clause (type), oath clause (regarding specific
king / god) and witnesses (regarding names, rank / family standing).
Then the second
category regards the investigation of the qualities that can further be identified in each
division agreement, namely language, location of text, tablet’s condition, copies, date
formula, impressions of seals and the rhythmic sequence / special style reflecting a scribal
school tradition within a certain city-state.
Accordingly, the chosen forty-six agreements in each city-state, Larsa, Nippur and Sippar, are
studied by means of a content analysis and then compared, using Malul’s 1990 1
typological comparison approach. Each city-state’s philosophy and styles of management of
the division of the communal property, as well as scribal school traditions, are investigated
and compared regarding the agreement’s implementation in society, and in particular
15
regarding the contractual parties.19 Thereafter, in addition to this study, a typological
comparison of city-state versus city-state follows.20
Thus, the analysis-model, with a typological comparison, is an attempt to simplify the
analysis of the different components and details of the agreement and to provide a reflection
on the legal practices and scribal traditions in the family deceased division agreements of Old
Babylonian Larsa, Sippar and Nippur.
1.6 DELINEATION OF STUDY
The study of the division agreements is confined to family deceased estate division
agreements in the Old Babylonian city-states of Larsa, Nippur and Sippar. There are division
agreements from other city-states such as Ur, Babylon and Tell Harmal. However, due to
limitations of the scope of the thesis, only some chosen division agreements from Nippur,
Sippar and Larsa are investigated.
In a content analysis of division agreements found in the Old Babylonian period, emphasis is
placed mainly on primary textual sources.21 Forty-six division agreements were chosen from
a corpus of division agreements, of which many of the clay tablets are damaged and some
division agreements of this corpus need to be transliterated.
One problem, however, stems from the limitations of the cuneiform scripts. Clay tablets are
mainly found in Old Babylonian houses as private documents and/or scribal documents. This
results in interpretational problems, because in present-day legal systems jurists are in the
privileged position of the named rule of law, embodied in vast legal corpora of legislation and
reported court cases. Unfortunately, no legal corpora existed in Old Babylonia. Westbrook
(2003:13) explains that the following difficulties with sources may be encountered:
We must also recognize that the document in which the source is now found
would not necessarily have played the same role as in modern law and may
not have been identical with the authoritative source itself.
19
Chapter 7.
Chapter 8.
21
Some of the named cuneiform collections are mentioned; however, the researcher does not consider these
as legal corpora or legislation, but only as having some literary value. Cf. discussion in Claassens (2010).
20
16
Today we resort to written and unwritten sources to gain some insight into Old Babylonian
law traditions. It is common knowledge that textual sources in Old Babylonia are few in
number in certain periods, while vast quantities are found in others. However, even if there
are large numbers of cuneiform scripts, the disadvantage still lies in the fact that written
records are only a reflection of a specific family under certain circumstances and cannot
represent the common law tradition of any given time or place. In every case, there are
explicit and/or implicit special family circumstances that play a role, but unfortunately, in
most of the cases, these are not shown in the written contract. This means that all conclusions
are drawn from the primary records that could be found. It is anticipated that the quantity will
warrant some form of quality that will correctly assist the researcher in her final conclusions.
Although there are some historical (chronological) connections between Larsa, Nippur and
Sippar, the focus of the thesis is a typological study; in other words, this thesis gives priority
to typological rather than historical comparison. In Appendix H, a synoptic chronological
outline is provided and some references are made in the core section regarding an historical
connection, only to substantiate the typological comparison. In Appendix K, some remarks
are made regarding the collective consciousness or legal transplant of the division agreement
from the ancient Near East to present-day law systems. With further studies and discoveries of
more cuneiform division agreements, there could be a possibility of substantiating such an
historical connection between the ancient past and the present.
1.7 FRAMEWORK OF THESIS
The thesis is divided into two volumes.
In Volume One, the thesis is split into two parts, consisting of an introductory part (Part A)
and a core part (Part B). Parts A and B are preceded by a Prologue, giving the reader an
overview of the chapters in the parts, and followed by a Conclusion.
Volume Two serves as a Reference Section (Part C) and consists of Addenda to the thesis.
See (infra) the schematic outline of the thesis.
17
Figure 1 Framework of thesis
Volume One:
In Part A, the introductory part is split into three chapters, namely Chapters 2, 3 and 4. These
chapters outline certain aspects of Old Babylonian life regarding family deceased division
agreements. The purpose of this part is to furnish an introductory view of the Old Babylonian
division agreement discussed in Part B, the core section, and referred to in Part C, the
reference section.
In Chapter 2 the Old Babylonian law tradition is presented in terms of its characteristics,
18
providing perspectives regarding the division agreement as a contract, as well as mentioning
inheritance factors involved in a family deceased division agreement.
Some of the
characteristics of ancient Mesopotamian law traditions in general are outlined, in order to
shed light on the workings and mechanisms of the Old Babylonian division agreements in
particular. These characteristics do not form a numerus clausus and serve as a reflection of
the different dimensions of ancient Mesopotamian law traditions.
In Chapter 3 practical methods in the division of deceased estates are outlined, reflecting
agricultural and architectural elements regarding the division of fields, gardens and houses,
and other assets whereby different ingenious solutions are used in the division of
communally-held assets.
Chapter 4 explains the legal significance of the written division agreements. Our present
understanding of the written medium cannot be applied to the written recordings of Old
Babylonia, since Babylonia, as well as the ancient Near East in general, was a predominantly
pre-literate society. This necessitates a reorientation of the meaning and understanding of the
written word, so as not to superimpose present-day frame of mind in the study of written legal
recordings in Old Babylonian life.
Part B, the core section, consists of Chapters 5, 6, 7 and 8. Family deceased division
agreements, a complex legal notion used in Old Babylonian life and the methodology of this
thesis is explained, secondly regarding the agreements’ terms/terminology; followed by a
typological comparison of the three city-states by way of a content analysis. The chapter
contents are as follows:
Chapter 5 describes and explains the specific methodology and special design structure
devised to manage a content analysis of the family deceased division agreements. The aim
and purpose of the analysis-model is a simplification in the analysis of such agreements.
Chapter 6 explains the different terms, special words and terminology in Old Babylonian
family deceased division agreements. The scribe inscribes the agreed details of the agreement
on a tablet in his own idiosyncratic style and according to the practices of the scribe’s scribal
school training. Some of these terms, special words and terminology are identified and
discussed in this chapter to assist in gaining a better understanding of their meaning employed
19
in the texts in Part C. The purpose is to provide a synoptic understanding of its grammatical
content, mainly found in the different lexicons and, to a lesser extent, in secondary literature.
In Chapters 7 and 8, the forty-six family deceased division agreements from Old Babylonian
Larsa, Sippar and Nippur are studied by means of a content analysis and compared, first,
internally, that is, within each city-state in isolation (Ch. 7), and second, externally, that is,
across the three city-states (Ch. 8).
Chapter 9, the concluding chapter, presents the main findings, a summary of contributions and
possibilities for further study.
Volume Two:
Part C consists of a reference section that contains the primary sources of the forty-six family
deceased division agreement texts.
This section presents the translations, transcriptions,
schematic family outline, schematic outline of the awarded assets, categories outlined in table
format, and sometimes plates and envelopes found.
This is followed by an appendix
containing the index of the contractual parties’ relationship to each other and to the deceased
owner (deceased family member).
Lastly in Part C, the other Addenda include the following: Appendix E, a glossary of names
and terms; Appendix F, an outline of the kings’ list;
ppendix G, a methodology outline of
different city-states: rhythm sequence; Appendix H, a schematic outline of the geographical
and chronological distribution; Appendix I, a table outline of type of contractual parties and
estate owners in texts; Appendix J, a map of the Old Babylonian region, and Appendix K,
legal transplants versus universal applications of division agreements.
Additionally, throughout the thesis, tables and schematic outlines, especially in the core
section of the thesis, serve as visual and conceptual aids to substantiate and illustrate the
intrinsic details and facts of the discussions pertaining to the agreements, in an ordered
overview.
20
PART A
INTRODUCTORY SECTION: ASPECTS OF OLD BABYLONIAN LIFE
PROLOGUE
Part A is an introductory section reflecting some aspects of Old Babylonian life as
background to the discussion and comparison in Part B of the forty-six division agreements
studied. Some reference is made to ancient Mesopotamia and, to a lesser extent, to the
ancient Near East. The Old Babylonian period ca. 2000-1600 BCE takes us to ancient
Mesopotamia; which is part of the ancient Near East. Reference is made to these areas to
reflect a general overview of some aspects of ancient Mesopotamian and ancient Near Eastern
life, which are similar to Old Babylonian life.
In Part A, Chapter 2, the characteristics of Old Babylonian legal traditions are synoptically
outlined, to furnish some insight into Part B, where the core section discusses Old Babylonian
legal division agreements regarding aspects such as inheritance, co-ownership and contract
legal tradition.
In Part A, Chapter 3, a discussion follows on Old Babylonian city life and landscape elements
with reference to their possible influence on and practical consequences for division
agreements, showing how and why contractual parties foresee and overcome practical
problems in altering co-ownership to sole ownership.
In the last chapter of Part A, Chapter 4 special attention is accorded to Old Babylonian scribal
school traditions and the relevance and meaning of written recordings on objects. This serves
as a background to the significance of recorded Old Babylonian division agreements in the
scribal school traditions of the said city-states.
21
22
PART A
ASPECTS OF OLD BABYLONIAN LIFE
CHAPTER TWO
CHARACTERISTICS OF ANCIENT MESOPOTAMIAN (OLD
BABYLONIAN) LEGAL TRADITIONS
“W˹ n˹ed to reinterpret some of the legal transactions we have encountered.
In synesthetic performance cultures, all legal acts we would associate with
on˹ s˹ns˹ may b˹ und˹rstood to also ˹xist in anoth˹r s˹nsory dim˹nsion”
(Hibbits 1992:950).
The cuneiform legal written sources were a recording of the performance of
multi-sensory communication acts with strong symbolic undertones.
Unfortunately, we encounter the limited availability of the recordings
(sources) of ancient Mesopotamian legal traditions today. In addition, our
interpretation of these sources is limited and obscured by our own conscious
and unconscious bias in the study of cuneiform legal recordings. Some of
the characteristics of ancient Mesopotamian legal traditions in general are
outlined towards a better understanding of ancient Mesopotamian legal
traditions and the workings and mechanisms of the Old Babylonian division
agreements. These characteristics do not form a numerus clausus and serve
as a reflection of the different dimensions of ancient Mesopotamian legal
traditions.
2.1
INTRODUCTION
The ancient Near East is widely recognised as the cradle of civilisation; ancient
Mesopotamians as a geographical and cultural group were, as early as 3000 BCE,
intellectually involved in legal issues from which many aspects of present-day law were
derived. The family deceased division agreements examined in this thesis were derived from
the Old Babylonian period, which scholars today recognise as the Mesopotamian period
around 2000-1600 BCE, from which thousands of textual sources were excavated, some being
23
deciphered, translated and discussed in the past century. Accepted by some ancient law
jurists, but not necessarily by lay people, the ancient Near East is “home to the world’s oldest
known law” Westbrook 2003:1; Veenhof 00 1 7 and the ancestor “of the two great
present-day Western legal systems, the Common Law and the Civil Law” Westbrook
2003:1). The legal traditions of the ancient Near East (including Mesopotamia) are, as
Westbrook (2003:2 states “...the product of many societies, with different languages and
cultures, that flourished, declined, and were replaced by others over the course of thousands
of years”.
In this chapter, the sources of Mesopotamian legal traditions in general are given, followed by
an outline of the problems experienced in the interpretation of sources by today’s scholars of
Old Babylonian legal traditions, as part of the ancient Mesopotamian and ancient Near
Eastern legal traditions. These interpretational problems are reflected in the examination of
some aspects of the characteristics of Old Babylonian legal traditions and of ancient
Mesopotamia (ancient Near East), in general. Through this examination, it is evident that
ancient Mesopotamian legal traditions differ largely from present-day law, so that scholars
may easily misunderstand and misread recorded division agreements, consciously or
unconsciously, while keeping today’s legal framework in mind.
The characteristics of ancient Mesopotamian legal traditions serve as a background to the
mechanisms and solutions of Old Babylonian family deceased division agreements, as a
consensual agreement between contractual parties, including the concept of inheritance law
tradition and co-ownership, as reflected in Part B, the core section of the thesis.
The
characteristics do not form a numerus clausus for ancient Mesopotamia (or ancient Near
Eastern) legal traditions.
The characteristics which are outlined are non-specialisation,
religious impact, kingship and institutional enforcement, group or social orientation, concrete
nature of legal acts, status quo/static nature of legal traditions, as well as openness.
2.2 SOURCES OF PERFORMATIVE LEGAL TRADITIONS
Ancient Mesopotamian documents survived in enormous quantities because of the
indestructible nature of the dried and baked clay and are still being excavated, deciphered,
translated and examined by scholars of the ancient Near East. The greatest numbers of these
documents deal with economic issues, sales of lands and school loans. There are also royal
24
inscriptions
kings’ military campaigns and building projects , historical inscriptions,
despatches, private and general letters, myths, proverbs, practice tablets, as well as
mathematical, astronomical and other scientific texts. In addition there are a variety of legal
sources such as a selection of deeds, conveyances, bonds, receipts, accounts and legal
decisions, which we call contracts, decrees, instructions, judicial decisions or court
judgements, lexical texts, transactional records, historiographical documents and literature
(Westbrook 2003:5-6; Veenhof 2003:142-143). In the Old Babylonian period, one source,
named “law collections”, plays a significant role in many present-day scholars’ perceptions
and discussions of the “source” of legal traditions. In the past decades, much debate has been
going on over the function of these law collections.22
Many of the vast numbers of documents of a legal nature still need to be transcribed and/or
translated and discussed. Unfortunately the uneven distribution of these documents over time
and place, as well as the today’s inadequate value placed on the written word in marginally
literate Mesopotamian societies resulted in a distorted perspective on the survey of
Mesopotamian and even ancient Near Eastern legal systems, gained from the study of the
different available sources.
In the early study of ancient Near Eastern legal traditions, Diamond (1935:3-5) points out
those three sources available for the study of early legal traditions, namely:
skilled and accurate observations of authors of the life and laws of ancient people;
written ancient compilations, commonly referred to as “codes” law collections ; and
other legal documents, especially legal transactions.
Westbrook (2003:4) in his study of ancient Near Eastern legal traditions, refers to the term
“source” which has a specific meaning in a historical and legal sense, better defined as
“historical records and as legal authority”.
he first phrase refers to written records, which in
turn serve as “evidence of legal rules and institutions”, while the second refers to written and
unwritten norms derived from court decisions. The validity of both of these views is tested
from different perspectives: the test of the historical point of view is its credibility and that of
22
Cf. discussions and outlines of the function and place of law codes/collections or cuneiform collections of
ancient Mesopotamia in Claassens 010 . hroughout the thesis, the term “law collections” is used, however
the term “cuneiform collections” is preferable. For convenience, due to the general practice by scholars to use
the word “law” in the description-term, the term “law collections” is used.
25
the “jurisprudential” point of view its “authoritativeness” Westbrook 00 4 .
The historical records in Mesopotamian legal traditions are not what we can call extensive for
there are different sources that verify the abundance of Mesopotamian legal traditions for
certain time-periods, whereas in other periods there is an almost entire lack. These documents
are to be found mainly in the Old Babylonian and Neo-Babylonian/Persian period (Westbrook
2003:5). The test for validity in historical documents is credibility. The criterion for testing
is twofold, namely “direct or indirect evidence of legal norms” and “the self-consciousness
with which a source presents the law” Westbrook 00 6 .
he evidence of legal norms
should be viewed carefully for it could be a biased representation of the facts, and as
Westbrook
00 6 opines “the more incidental a value judgment of law in question is to the
purpose of the source, the less it is likely to be biased in its report”.
Furthermore, from a philosophical stance the origins of legal traditions are speculative in the
discussion of different subject matters, and in general ancient Near Eastern, Mesopotamian,
and more specifically Old Babylonian legal traditions (Westbrook 2003:1).
Westbrook (2003:1) optimistically remarks that with the advent of writing the legal traditions
of our ancestors finally gave present-day historians and jurists some glimpse of their
administration of justice. Today it seems that the written word embodied in different kinds of
ancient documents, is unfortunately the only evidence of ancient peoples’ legal institutions
and administration (Westbrook 2003:1).
Veenhof (2003:135) refers to Mesopotamian civilisation including its legal traditions as
“dead” since all that remain are recordings, and no continuous oral traditions exist. Scholars
such as Veenhof (2003:138) consider the Old Babylonian period as useful for providing a
valuable insight into legal traditions due to the vast variety of different transactions
recorded.23 Throughout the ancient Near East, especially from the Old Babylonian period
there are vast amounts of legal documents and/or records excavated, of which many still have
to be transcribed and/or translated. Many of these consist of private transactions between
individuals. These documents do not convey any literate or ideological sentiments; therefore,
they can be considered a reliable source of Mesopotamian legal traditions, although it is only
23
Cf. Roth (1995); Westbrook (2003); etc.
26
a small portion or reflection of the legal practices (Westbrook 2003:11). However, Malul
(1988:449–450) remarks how one needs to bear in mind that the functional goal of written
documents was only to capture the most important details of the agreement. Furthermore, the
symbolic act or the ceremonial details at least were not always pertinent in the documents, but
this does not mean that these acts needed to be written to have any effect or value; they played
a vital role in the performance of the legal traditions regardless (Malul 1988:449).
2.3 PROBLEMS WITH INTERPRETATION OF RECORDED LEGAL TRADITIONS
TEXTS
In this thesis, forty-six chosen division agreements are analysed, to contribute and explore the
phenomenon what the legal experience may have hold for the Old Babylonians. However, the
relevance and interpretation of written sources/documents take place through three “filters”,
the first being recording – because not everything is recorded.
Through archaeological
excavations, we in fact discover the rubbish bins of ancient Babylonians. The second filter is
conservation, and here it is uncertain what survived through ages of erosion and human
intervention. The third is discovery, regarding the importance of the quality and quantity of
excavations, as well as the success rates of archaeologists and their teams, as so many sites
needed to be excavated and explored (Bottéro 2001:24).
Apart from the normal limitations of these three filters, we also examine the three dimensional
cuneiform artefact (Hameeuw & Willems 2011:165) with its unique interpretational problems
when investigating written records regarding their recording, conservation and discovery
(Bottéro 2001:24).
In addition, Mesopotamia and other nations of the ancient Near East offers us “a variety of
practices that offend present-day sensibilities — slavery, polygamy, and (with the qualified
exception of Israel polytheism” Ellickson & horland 1995:328). Thus a society different
from ours can easily be misunderstood. Roth (1998) advocates the re-examination of social
categories. She points out those social categories are accepted without study and re-examines
their context and the context of present-day understanding of social categories. We have our
own assumptions and we need to uncover and re-examine them (Roth 1998:175). Roth (1998;
1987) gives an extensive explanation in her examination of social categories and provides
reasons for the interpretational problems in legal texts and other documents regarding social
27
factors and categories. For instance, considering age as a factor, a person moves through
different stages ranging from that of a baby, child, puberty, early adulthood, middle age and
old age; by means of these stages a person is placed in different categories of status within a
society. Age is one of the factors through which a person functions in society, within certain
expectations of the role such person plays in society. Other factors are gender, kinship
relations, economic and social class. Roth argues that in some cultures these stages were not
strictly determined by chronological age. Also important are the rituals and ceremonies that
provide a clear indication of a person’s social roles and expectations of him/her in a society
(Roth 1998:717).
Additionally, in the ancient Near East, the named “written law” in the present-day perception
of law did not exist (Lemche 1995:1696,1714). Boecker (1980) advocates an avoidance of
using terms from present-day law, interpreting ancient texts in this light. It is important to
remember that when using legal terminology it seldom has precisely the same meaning when
applied in the study of ancient Mesopotamian legal traditions sources (Boecker 1980:18).
Even the simplest of words and terms can lead to mistakes for we can be tempted to read our
own ideas into them (Boecker 1980:18). Boecker (1980:18-19) gives an example of the word
“widow” which in present-day meaning is defined as a woman who was the spouse of her
deceased husband. The concept of a widow in ancient Mesopotamian legal traditions is not
confined to family life. If a widow returned to the house of her parents then she was no
longer regarded as a widow. Only a woman who remains independent of a family and takes
no share of the family property is considered a widow. In general the ancient Babylonian
language contained neither an equivalent for the present-day word “law” nor the phrase to
“observe the law” or “sentenced according to section x of law y”. Regarding the terms “law”,
“book of laws”, “lawgiver”, “code” and “codification” these have no ancient Near Eastern
equivalent and must be put in quotation marks when applied in the study of ancient
Mesopotamian legal traditions (Boecker 1980:56).
here are “obvious reasons” why present-day scholars encounter difficulties of interpretation
as regards other legal systems in relation to their own, for “law is a function of a society, an
instrument as well as a reflection of the modes of social control”.
o understand the law of a
society, we need to understand the different dynamics of society wherein the law functions
(Lemche 1995:1696). The human mind and its experiences are complex. Furthermore, every
culture and its timeline are as unique as its people in all of their complexities. These cannot
28
be analysed all at once: only when we name and analyse human experiences reflected in the
different spheres of civilisations can this gradually lead to a further understanding of cultures
and the enrichment of our own culture.
The legal experience is a multi-dimensional
phenomenon. Mythic, dramatic, rhetorical and philosophical elements play significant roles.
The practice of law reflects the way society analyses itself and projects its image to the world
(Smith & Weisstub 1983:vii).
In addition to their unique problems of discovering, conservation, interpretation and threedimensional appearance,24 written documents also offer a three-dimensional value from an
archaeological perspective because “…they talk of themselves, they reveal and they explain
to us much more deeply, not only material life, but also the thoughts and the feelings of their
vanished authors” Bottéro 199 19 .
s Westbrook
00
points out, today we only have
“a series of snapshots scattered at random in time and place”. The limitations of the written
word regarding the life and law of ancient Mesopotamians and our knowledge thereof lead
Bottéro 199
1 to remark “We have to make do with what we have!”
2.4 NATURE AND CHARACTERISTICS OF PERFORMATIVE LEGAL TRADITIONS
The ancient Mesopotamians, in contrast with current trends of thought, were concrete and not
abstract thinkers and their legal traditions functioned without specialisation; therefore, no
definitions of legal concepts and activities, functions and duties existed.
This is
“performative” legal traditions with elements and characteristics that seem to fall more in the
sphere of Germany's Rechtsethnologie and other indigenous legal systems like the South
African traditional law and customs of indigenous people.25
The characteristics of ancient Mesopotamian traditions, including Old Babylonia are
discussed below, offering a general outlook on the performative legal traditions serving as a
background to the core section of the thesis, and give some insight into the dynamics and
functions of Old Babylonian family deceased division agreements. These characteristics are
not a numerus clausus, but only a reflection and supplement to the understanding of Old
he scribes have the opportunity to write on all six sides of a clay tablet. See ameeuw and Willems’
(2011) discussions of new techniques to read these texts and its impressed sealings, systems and methods
facilitating the reading of texts and sealings impressed on clay tablets.
25
The scope of this thesis does not allow a comparison study between the ancient Near Eastern
“performative” legal traditions with that of the Germany's Rechtsethnologie and other indigenous legal systems
such as the South African customs and traditions of its indigenous people.
24
29
Babylonian thought, in their practice of law.
The characteristics of ancient Babylonian legal traditions discussed are (1) non-specialisation,
(2) religious impact, (3) kingship and institutional enforcement, (4) group or social
orientation, (5) concrete nature of legal acts, (6) status quo/static nature of legal traditions
and (7) openness. These characteristics are intertwined with each other the “separation” of
the characteristics into different headings is a superficial means to emphasise only one
characteristic at a time in the discussion.
Therefore, as a logical consequence some
overlapping of the characteristics will be evident. The characteristics exert a mirror effect on
each other.
Present-day scholars consensually agree that the nature and characteristics of ancient
Mesopotamian law still elude us, because we are bound to the discovering, deciphering and
possibly biased understanding of the only evidence we have of these “dead” civilisations,
namely its written sources.26
The aim is at most to glimpse a reflection of some
characteristics of the ancient Mesopotamian legal traditions, in general.
2.4.1
Non-specialisation
Myburgh (1985:2) refers to specialisation as:
separation, differentiation, classification, delimitation, definition, or
individualisation in respect of time, activity, functions, interests, duties,
knowledge, conceptions, etc., the isolation of ideas or abstraction falling
within the meaning.
In Mesopotamia, civil and criminal proceedings are not kept separate. In present-day law
there is a distinction between the description of delict and that of crime.
Thus, a
specialisation of different categories of law as we know it today did not exist in ancient
Mesopotamia.
In the writing culture of present-day that can physically separate contracts, judgments, and
statutes from their proponents, we consider law to exist apart from, and indeed above, human
individuals.
his attitude is perhaps best captured in the aspirational phrase “a government of
26
Cf. Westbrook (2003); Renger (1979); Hibbits (1992); Oppenheim (1964); Bottéro et al (2000); Sassoon
(2001); Zaccagnini (1994); etc.
30
laws and not of men”
Mesopotamia.
ibbits 199 9 6 .
owever, this is not the philosophy in ancient
The aim in Mesopotamian legal traditions is harmony, to establish and
maintain the kittam u mīšaram.27 Its purpose is not to specialise, not to isolate ideas, not to
define and individualise legal traditions into concepts of abstraction and separation. Law was
intertwined with the everyday life of ancient Mesopotamians.
The Mesopotamian legal
traditions were performed. It consequently differs profoundly from present-day western legal
systems.
When viewing a Mesopotamian contract/agreement we see a “performative
contract”. It is “not an object, but a routine of words and gestures”. This means a witness is a
“phenomenon seen and heard”. Law is “something that is done”
ibbits 199 9 9 .
Therefore, although there are procedures, rituals and ceremonies in ancient Mesopotamia; one
finds no specialisation, abstraction of principles, or the removal of law practice from a
society, through the isolating stylistic medium of the written word, as it exists in the law of
today.
2.4.2
Religious impact
Religion was intrinsically connected and intertwined with the performance of legal traditions.
Owing to the dynamic nature of the legal traditions, the legal performances were full of
mnemonic expressions.28
Religion was an integral part of society and legal tradition. Fundamentally, the ancient Near
East's government and judicial system was based on a theocracy, usually embodied in the
local or regional ruler, who was considered a representative of the patron god, or was
semi-deified himself (Bottéro et al 2000:57,61).
The ancient Mesopotamians were created to serve their gods; the latter being superior to them
regarding all aspects of life and the supreme beings in justice and reasonableness. The human
beings were the gods’ servants, workers and domestic employees.
he king had the duty to
be the shepherd, to govern the land by exercising perfect administration (Bottéro et al
2000:57,61; Olivier 1978:287-323).
See discussion by Olivier (1978:269-270) where the expression sar mīšarum is utilised to reflect a certain
attitude of the king and show a concern for certain aspects of justice, for instance, the king “who loves right and
justice”, “he who loves justice and upholds truth”, “the one who guards truth and who loves justice, who gives
help, who comes to the aid of the weak and is preoccupied with good deeds”.
28
See discussions by Hibbits (1992); Malul (1987a; 1987b; 1988); Kruger (1998); Hillers (1990).
27
31
Scholars have viewed the various meanings of the many “law” terms in terms of different
approaches. Sassoon (2001:145) investigates the grammar structure of the word nìg-si-sá,
while Olivier (1978) and Nel (1994) discusses religious symbolism and its influence on terms,
and Lemche (1979) focuses on social ideology as part of the term mīšarum or nìg-si-sá.29
Zaccagnini (1994) warns one not to overemphasise the religious aspects in the study of
Mesopotamian legal traditions, as well as the relevance of monarchical ideology.
According to Mesopotamian recordings, the mīšarum or nìg-si-sá was derived from classical
Sumerian period until the late Babylonian time-period. The phrase si-sa or mīsari is also part
of a name of the god of justice, Si-sa of Lagaš Price 19
17 . Other gods in the Sumerian
period that carried out the functions of justice and legal traditions were Gu-silim, Ningirsu
and Nanše who played a prominent role in the exercise of justice during the Gudea period
(Price 1932:178). In the Sumerian period, the gods who function prominently as the gods of
justice were the writers’ gods Nisaba and ani Price 19
177-178).
The term nìg-si-sá literally means “equal fingers”, or may be freely translated as “even
handed”. It also refers to the “notion of equality, fairness or justice” Sassoon 001 14 .30
Nel (1994:3) refers to the principles of justice and the gods who control the cosmos in relation
to this. The word mīšarum is used with the sun god ṣamaš, the judge of the kings and
humankind. He is the god who establishes truth and justice (Olivier 1978:256-259; Nel
1994:3). The sun god is the light of all living things, while this light is the symbol of justice
Nel 1994
. Zaccagnini 1994 67 avers that the “supreme ideals of justice and equity are
the chief prerogatives of the sun god ṣamaš Sumerian: Utu ”.
In one hymn to the god, ṣamaš illustrated the god as the protector of law/legal traditions. The
hymn reads:
You imprison the unjust judge; you punish the one who accepts bribes and
29
Cf. discussions by Olivier (1978:267-287).
Scholars such as Frymer-Kensky (1980); Parisi (2001:82-124); Sassoon (2001:145) and Diamond
(1951:153) discuss the concept of compensation and retribution in circumstances when there are strife within the
community. These scholars examined the principle lex talionis also known as “legal symmetry”. he principle
is described by Frymer-Kensky 1980 0 as “...the fundamental principle applied in both systems: those guilty
of physical assault suffer the same harm which they first inflicted, and those guilty of false accusation or false
witness receive the penalty that would have accrued to the accused had he been found guilty”.
30
32
acts unjustly. The one who accepts no bribes, who intercedes for the weak,
is pleasing to ṣamaš and gains long life. he prudent judge who passes
just judgement will (even) complete a palace; he shall dwell in a royal court
(Boecker 1980:54).
Although the sun god is only one of the gods in the Mesopotamian pantheon, he is still “a
constant point of reference for the strong desire of a true and durable social order” (Nel
1994:6).
The sun-god is the great shepherd and “punishes those who cause grief and
oppression”
livier 1978
7.
The world was controlled by order, the structure of which was justice (mīšarum), prescribed
for all living things. The sun god and moon god were constant activities of mīšarum, and
protected it (Nel 1994:6).
The king, as the earthly representative of the gods, was responsible to establish order in
accordance with the idealistic principle of the mīšarum (Olivier 1978:256-259, 287-288). The
term and principle mīšarum u kittum not only refer to the sun god ṣamaš, but also to the other
main gods such as Sin, Enlil, Marduk and Ištar (Nel 1994:7).
Lemche (1979:15) opines that a social ideology was an inherent part of the term mīšarum and
that this act of mīšarum is referred to in the law collections such as
ammu-r pi L
, Ur-
Nammu LU and Ešnunna LE , and in the majority of instructions by the kings, such as the
instruction of King mmī- aduqa.
Some kings gave themselves the title of sar mīšarum – king of justice – such as King
ammu-r pi in the Old Babylonian period. Furthermore, it was stipulated that mīšarum
should be bestowed on the land and that there were periods of šanat mīšarum, the year of
justice Lemche 1979 1 . For instance, referring to King Lipit Ištar an inscription in his
temple wall says that he was a divine, humble shepherd, husbandman, a king, captivated by
the heart of the goddess and established justice. The inscription reads:
he divine Lipit Ištar,
the humble shepherd of Nippur,
the faithful husbandman of Ur,
who does not change the face of Eridu,
a king befitting Erech,
the king of Isin
33
the king of Sumer and Akkad (North and South Babylonia),
who captivated the heart of the goddess
Ininni Ištar ,
am I.
When justice in Sumer and Akkad he had
established,
he temple of justice he built (Sprunger 1985:18 fn. 1).
Zaccagnini (1994:265) advocates that although there is a strong presence of a religious
element in Mesopotamian legal traditions, it should best be seen in a necessary perspective as
part of a complex entity.31 The scribes in their capacity as writers, were responsible for
capturing the high and noble ideals of justice; and written records are an “extremely valuable
conduit” of “people's discontent, humiliation, and desperation” Zaccagnini 1994 8 -283).
Zaccagnini (1994:282- 8
believes that the ancient Mesopotamians “as servants of the
gods...obtain justice by applying the will of the gods to their current circumstances”
(Zaccagnini 1994:282).
2.4.3
Kingship and institutional enforcement
Kingship and institutional enforcement are now discussed, together with a reflection on social
and group orientation, as characteristics of ancient Mesopotamian/Old Babylonian legal
traditions.
The king act as a mediator between different social groups and between deities and human
beings (Selz 2007:276).32 he king as “righteous shepherd”, for instance King
ammu-r pi,
mentions that he looks after his people’s welfare Selz 007 76-277; Olivier 1978:287).
Postgate (1992:275) considers the Mesopotamian judicial institutions as having carried out
four major tasks namely:
to settle disputes between individuals and groups;
31
For instance the presence of the oath clause in the division agreements of all three the city-states and the
oath ritual in the temple as stated in three of the Sippar division agreements. Cf. Part C, volume 2.
32
Cf. livier’s 1978 discussion of the mīšarum especially regarding cancellation of debts, the remittance
of arrears and taxes and “freedom” of people in different old Babylonian city-states. Olivier (1978:287-288)
states that there are different terms expressing that the king acted as shepherd over his people. The people is the
subjects of the gods and the king; and the king is a subject of the gods. The king is responsible to look after his
servants/people. Also the king is the legislator and judge; and in this position responsible for making just
decisions (Olivier 1978:289-296).
34
to enforce their decisions and inflict punishment on those who offended against society as
a whole (i.e. in present-day terms, criminals);
to administer certain enactments of the government; and
to act as an agency, in authenticating official records of certain acts as legally valid.
here was a “pyramid of authorities” consisting of a level of local councils, judges, and the
courts and king (Postgate 1992:275).
Written recordings did not play the same role as present-day law; in the application of
Mesopotamian law rules by the “pyramid”, or their application in normal everyday activities
in Mesopotamia. In Mesopotamia there was no use for a legislative body, as it exists today.
It would have been a hindrance to administration, because there was a smoothly operating
power system where the patron decided what was right and wrong. The only one who could
intrude on the patron's right was the king, “a patron of an even higher standing”. The king
seemed to interfere only if his own interests were at stake. Ancient civilisations needed only a
general attitude towards what they considered justice (Lemche 1995:1714). When one is
viewing the social and group orientation (infra) in ancient civilisations it seems that, the
members of this society although based on a kingship ideology, were mindful of establishing
harmony between each other, in a specific social group/setting.
2.4.4
Social or group orientation
Mesopotamian society was socially orientated in the sense that emphasis was placed on the
interests of the group. The opinions of scholars in general are, that the family was an integral
part of society, and was represented by the family head. In their dealings with order and
harmony, the ancient Mesopotamians were group orientated, while personal status and honour
played an important role.
Maintaining good relationships was important in the Old
Babylonian family life. An Old Babylonian proverb states, “if there be strife in the abode of
relations, there is eating of uncleanness in the place of purity” Langdon 191
191
1 . Langdon
1 interprets this as “strife in a family is compared to defiling a holy place with filth
and calumny”.
Within the group orientation, kinship relationships play a role.
Frymer-Kensky (1981)
stresses the importance of the latter, and examines the social role of each person in his or her
35
particular juridical relationship position in the family, as an integral part of the latter.
Leemans (1954) adopts different emphases, considering the role of the individual within the
kinship relationship from an economic perspective. Forster (1995) opines that there is a
difference in the geographical setting of northern and southern Mesopotamia regarding social
kinship relationships, albeit a family orientation or focus on individual rights of co-ownership.
Fleishman (2001) regards kinship relations as sometimes extending further than only a
biological connection, also including an adoptive status.
These approaches show how differently kinship relationships can be explored, and reflect the
existence of different layers of meanings of such relationships, with respect to ancient
Mesopotamian legal traditions and their obligations.
Frymer-Kensky (1981:209) contends that kinship relationship is in contrast with patronage,
which falls outside the sphere of kinship. She places “social relationships of patriarchal
narratives” “in context with the named fundamental legal traditions and cultural framework of
Mesopotamia”. Her view is that Mesopotamian legal collections were “apparently scholarly
and jurisprudential rather than statutory”, considering them as compiled “legal-type cases”,
with the purpose of reflecting “ideal legal principles” Frymer-Kensky 1981:209). The items
frequently reflected in these collections are not recorded, because of their frequency of
occurrence, for instance “pregnant women usually knows enough to keep out of fights and
miscarriages are rarely caused by a blow – but rather because they illustrate well the principle
involved” Frymer-Kensky 1981 10 . Law collections have value for they provide “some
insight into the fundamental legal principles of these societies”.
owever, these collections
were “groups of law-as-it-ought-to-be” and gave preference to the mentioned “large
assortment of humble documents of law as it was practiced daily”.
he said “documents of
law” embodied in different types of cuneiform sources are more difficult to study due to their
“numbers and organization”.
Notwithstanding, they furnish a helpful reflection of the
patriarchal relationships in a family for “you can see the family” Frymer-Kensky 1981:210).
In the large extended family, the sons live in one house: the principles governing the structure
of the family are that it is “patripotestal in authority” and “partrilineal in descent”.
his
entails that the father contracts his daughter’s marriage and seemingly “disposes” of her as he
chooses. The father provides his sons with wives through lengthy negotiations and contracts.
The daughter-in-law leaves her family, goes to a new one and becomes part of them. Hence,
36
a “transfer of membership” took place
Frymer-Kensky 1981:210).
Frymer-Kensky
(1981:210) considers the bond between father-in-law and daughter-in-law as a “very strong
one” and goes as far as to refer to it as the “strongest new legal relationship created by this
marriage”.
here is the following pattern the brothers for an unknown reason keep the land
for a period of time and so do not immediately divide the inheritance or otherwise but
“maintain corporate ownership of the productive land” Frymer-Kensky 1981:210-211).
Before this can occur, however, the brothers provide for the payment of dowries of unmarried
sisters, and a bridal payment for younger brothers: all this happens while they still hold
communally-shared ownership and before a division of the property has occurred.
Frymer-Kensky 1981 41 considers the terms “first-born, brother, sister, father” to have a
“particular juridical relationship” which occurs by contract or by birth for “people adopt
others as brothers, brothers adopt each other as sons, and brothers adopt women as sisters…
he designation of an individual as ‘first-born’ can also be a matter of choice”.
On the other hand Leemans (1986:22) examines the economic life of a family in the Old
Babylonian period; in most of his analyses he makes references to division agreements of a
family deceased estate, and in his conclusion avers that there “are no traces of any
organisational framework” in which a family operates.
e states that the family members
acted as private individuals, and goes as far as considering that the family members “maintain
each other in the most restricted form”, where two or more family members will act in their
“common interest”. However, they will do so living on their own, on either a “contractual
basis” or on an “undivided estate”, earn their own income and keep their portion “intact”. In
case of “certain rights” he is of the view that these may have “another origin”, such as for
“reasons of justice”.
Leemans (1986:15), in his investigation of a family in the Old Babylonian period commences
with a distinction of the nuclear family in anthropological terms: a married man and woman
and their children who lived together as a unit (in the first instance). An extended family is
defined as a “group together in one organisational framework” or a number of nuclear
families with an ancestor connecting all the descendants (second and third instance).
Leemans’ 1986 1 -16) approach is to consider if a family plays a role in economic life and
the “criteria” they use to bind themselves and each other by contract or obligations. Usually a
paterfamilias binds the immediate family members in a legal transaction by obligation/s.
37
Therefore, the question of the extended family members (as named in the second instance)
arises; to answer this question he examines real estate transactions (Leemans 1986:16).
Leemans (1986:16) makes the assumption that although members of an extended family live
together in a house and in different rooms as in the case of an undivided ownership, it does
not mean that they act as an economic unit. The family members have the option to go as
they please and even to claim the division of communally held property. Leemans (1986:16)
examines the Ur III period and mentions that although little is known about private property,
in this period, the economic activities were more often reserved to the palace and temples.
Although there are certain legal cases regarding houses and fields, there is no reference to
liabilities arising between family members. The beneficiaries could divide the communally
held inheritance, while in the case discussed by Owen (1980) regarding the status of a widow,
it seems that she too is entitled to a part of the estate. Subsequently an “evolution” took place
in the Old Babylonian period where “private enterprise and private property” significantly
increased in number. The families were wealthy based on the number of houses and fields
they owned, although these were smallholdings and cheap prices were paid where the
holdings were the same as their neighbours (Leemans 1986:17).
Foster (1995:442) is of the opinion that as a complication, stressing the multiple layers of
differences in a geographical setting, northern Babylonian documents indicated an extended
family ownership, while in the south the documents showed “individual and nuclear family
holdings”.
e does not consider the “individual or nuclear ownership” of the south of
Babylonia as a remnant of older “communal ownership patterns”, but suggests that it was a
“foreign and rather marginal” development in the south among the ruling class Forster
1995:442).
Fleishman (2001:93) states that kinship relations extended further than only a biological
connection and included an adoptive status. This view raises difficulties due to the absence of
any biological ties; the question arises of what to do when there is strife. The Mesopotamian
tradition especially made provision for this. After analysing Old Babylonian legal sources
Fleishman (2001:93-97) states that a parent was not permitted to cancel, without lawful cause,
the legal tie between himself and his natural or adopted child by means of the declaration,
“you are not my son,” or “you are not my daughter”. Severe sanctions were imposed on a
parent who uprooted his child from his house. The most common sanction in accordance with
38
scholastic-legal texts and adoption documents is a sanction clause allowing for the forfeiture
of the parent’s property. These formulae and others, such as “you are not my father” or “you
are not my mother”, appear verbatim in adoption documents, marriage contracts, and deeds
for the acquisition of slaves. The aim of such formulae was to mark the exact moment of the
alteration in the legal status of the two parties concerned (Fleishman 2001:97).
Notwithstanding the different meanings, group orientation was an important aspect of cultural
life and a characteristic of ancient Mesopotamian legal traditions. In the concluding chapter
the components and debate regarding the influence and role of kinship and institutional
enforcement, including group orientation and patriarchal authority versus individual rights,
are discussed based on a study of forty-six division agreements.
2.4.5
Concrete nature of legal acts
Legal acts were performed; therefore, Mesopotamian legal traditions can be considered
dynamic. Hibbits (1992:910-911 quotes the English law historian Frederic Maitland “So
long as law is unwritten, it must be dramatized and acted. Justice must assume a picturesque
garb or she will not be seen”.
Owing to the concrete nature of ancient Mesopotamian legal traditions, for example
evidential value is attached to material objects, like the grasping of the hem. The concrete
aspect of this legal act means that writing was of less importance and did not support the legal
act as a whole. Written documents were a reflection of a legal situation that took place, and
normally did not have evidential value.33
The concepts of ancient legal traditions receive their meaning directly in terms of a sensed
experience. Factual principles, rather than the western mode of abstract conceptions, are
applied (Smith & Weisstub 1983:17). The ancient people of Mesopotamia did not organise
experience in terms of highly abstract concepts and categories and its legal traditions reflect a
“law of empirically known psychologically sensed wrongs” Smith & Weisstub 198 17 .
The theoretically conceived rights and duties have no existence in the material world of the
senses; for example the contract is not a contract but a set of transactions (Smith & Weisstub
1983:20).
33
Cf. discussions by Hibbits (1992); Malul (1988).
39
The performances of legal traditions were through symbolism and “multi-sensory
communication” (Hibbits 1992; Malul 1988).
Hibbits (1992:950) stresses that “we need to reinterpret some of the legal transactions we
have encountered. In synesthetic performance cultures, all legal acts we would associate
with one sense may be understood to also exist in another sensory dimension”.
Malul (2002:22) pleads for the study of all the “aspects and expressions of the human mind
and spirit”. Malul is of the opinion that we must look deeper – it is not so much the “cultures
of ear” versus “cultures of eye”, “but rather between different configurations and modes of
operation of the human sensorium, by different cultures”. In using our sensory apparatus we
are employing an “analytic mode of thinking” where we “tend to be disjunctive in terms of
letting each sense play its own role without being interactively affected by the other senses”
(Malul 2002:31).
Kruger (1998:141) considers non-verbal communication as an unspoken unwritten medium;
these were in some instances more important than written and verbal communication.
Communication acts illustrate the “state of affairs” while the symbolic acts show the “change
of affairs”. According to Kruger (1998:146), with reference to Malul (1988) regarding his
identification of the symbolic act, a distinction must be made between acts or gestures,
serving as a means of communication and those, which entail symbolic acts.
Furthermore, as regards communication, there is a difference between “information” and
“communication”, for some performances may be information, others communication, while
some are enacted on purpose, and others not (Kruger 1998:144).
Examples of concrete acts are, for instance, the striking of someone on the forehead to make
an accusation against him, which was considered “a forceful way of making a legal claim”
and to symbolically and literally “place spoken charges upon the accused's head”.
ence, the
spoken word had a tactile quality to it. The same principle is evident when taking an oath
while drinking and eating.
ere the participants are “swallowing the vow, causing it to
become literally a part of the oath-taker and thus a physical danger to him should it ever be
dishonoured”
ibbits 199
0.
40
Performance is personal. Unlike writing, which can exist apart from the writer, performance
that depends on the use and synthesis of such media as speech, gesture, and touch requires the
on-going, live participation of a human actor. In a culture where little if anything can be
looked upon in written words, no significant knowledge passes without personal action.
Without the performer, there is no performance. In this environment, individuals quickly
come to associate what is performed with who is performing. Information is dependent of the
status or reputation of the human individual presenting it. The objective appreciation of a
message is inevitably entangled with a subjective appreciation of its messenger (Hibbits
1992:956).
The ancient Mesopotamians by means of their multi-sensory communication established a
sensible way of preserving information: they used this communication medium as a “hook
from which the thread of memory [could] hang”. So perhaps one ancient Mesopotamian
might not remember hearing something, but he could remember something, seeing and/or
feeling and/or smelling and/or tasting it (Hibbits 1992:951). Recordings are there to be “held
in living memory taught by the old, learnt by the young, recited regularly and updated in
intervals” Sassoon 001 19 . Developing the faculty of memory had the advantage that not
everything had to be noted down and remembered.
“Exercising the memory not only
preserved their knowledge but kept their memories virile” Sassoon 001 0 .
2.4.6
Status quo/static nature of legal traditions
Maintaining the status quo was important and practically achievable due to the openness and
public nature of the performance of legal traditions.34
Some scholars consider ancient Near Eastern legal traditions to be a “single Rechtskreis”.
his means that the “values, rules and customs” are considered to be uniformly the same, as
well as generally accepted in a particular time-frame and geographical setting, and cognisant
of the different status of people (Renger 1979:67). This is also the viewpoint of Westbrook
(1994) who refers to the legal traditions as static; however, some scholars (infra) criticise this
viewpoint.
Renger (1979:68-69) opines that there are several Rechtskreise in Mesopotamia during the
34
Cf. Hibbits (1992) and Westbrook (1995).
41
Old Babylonian period. e believes that they “differentiated horizontally i.e. representing the
various regions of Mesopotamia), but also vertically (i.e. representing the various segments of
the Old Babylonian society ”.
here are according to him different sets of values, rules and
customs in “small self-contained villages as opposed to those living in urban centres”.
e
makes the assumption that the “state tries to exercise increasingly more influence over the
individual self-contained village community”. herefore
... a conflict between the two value systems is unavoidable. Such conflicts
are not unusual. Even today examples can easily be found in the societies of
many Third World developing nations. Whereas the community seeks
solutions preserving its own peaceful personal interrelations, the state tends
to use coercive and deterrent force to serve its (often different) interests and
goals (Renger 1979:68-69).
Westbrook (1994:16) has a different approach to the same conclusion and theorises a common
scientific tradition, wherein he looks at the differential between casuistic and apodictic laws.
Casuistic laws begin with the word “if”, while apodictic are identified with a direct command.
These laws differ in their forms, source and character.
Westbrook stated that the Sumerian-Akkadian society developed legal traditions through
scribal tablets (1994:21). He considers the cuneiform legal traditions as static and adds that
there is continuation as proved by the named law collections, with a few “discrepancies”
(Westbrook 1994:22). Westbrook investigates the reasons for the casuistic form being the
dominant form and not a natural source of the law. Decisions were based on each case study
and not on a hypothetical case (Westbrook 1994:29). The named inscriptions issued by the
king were a direct and general order (Westbrook 1994:30).
The named law collections are not a total reflection of the legal system or area of legal
traditions; therefore it is dangerous to argue that if the law collections do not mention
something it did not exist in the legal traditions Westbrook 1994
.
he casuistic “laws”
could as a result of their form not provide for every circumstance and therefore usually a
generalisation, consisting of only one case, was specifically mentioned (Westbrook 1994:2223).
Scholars such as Greengus (1994), Buss (1994), Levinson (1994) Lafont (1994), Matthews
(1994) and Patrick 1994 were invited to comment on Westbrook’s (1994) viewpoint and
42
responded as follows:
Greengus (1994) comments on two points made by Westbrook, firstly the static element of the
Mesopotamian and ancient Near Eastern legal traditions, and secondly questions whether the
omissions are maybe emphasised too strongly.
e questions whether Westbrook’s proof is
sufficient for one to believe that a cultural domination of cuneiform law over the whole of the
“local law” was possible Greengus 1994 8 .
Greengus (1994:85) does not agree with Westbrook that there is a static law in the ancient
Near East. The written collections were incomplete and they could have had an educational
function; however, they were one of the many sources of law (Greengus 1994:85). Greengus
(1994:86) opines that written law was incidental: certain principles were taught by, copied
and recopied unto clay tablets in the scribal schools, reflecting idealism in the educational
documents. The hard road had to be followed, wherein each subject relating to law had to be
investigated with appropriate data, to assess whether there were similarities (Greengus
1994:87).
Buss (1994:89) agrees that the law collections are not the same as legislation in present-day
terms. He criticises Westbrook for not examining whether the collection was part of the
natural or positivistic law. Buss (1994:89) further argues that Westbrook sees the collections
as academic documents without explaining what he means by this, as “academic document”
has two possible meanings. The first is that the document may describe law as if it really
exists, while the second is that it is an appropriate form of the law. In the first instance this
refers to positivism and how it functions in the law of today, whereas in the other it is part of
natural law - how the law should operate.
e believes that Westbrook‘s statements are more
closely connected to natural law, which is why the law collections are not reflected in
cuneiform documents. Otherwise, as in the case of the positivistic application of law, the
paragraphs or principles would be mentioned on a general basis in cuneiform documents
(Buss 1994:89).
Levinson (1994:54) states that Westbrook, who concentrates on law paragraphs, omits the
religious and literary framework wherein these were written. Levinson (1994:54) states
further that it is uncertain whether the combination of law and framework is original or
secondary.
43
Lafont’s 1994 97 main criticism against Westbrook’s theory is that the diverse historical
milieu of the ancient Near East cannot be forced into one “rigid scheme”. Lafont 1994 97
summarises the main points of Westbrook’s argument for a common law tradition, on the
basis of his reference, to the named law collections (law codes), as follows:
The law seems to be a text derived from a law-making institution, which was applicable to
all the people of the ancient Near East for an uncertain period.
The law collections were real law rules, which the king promulgated through the
instructions of the gods, which were intended to be permanent, making references to
curses as reflected in the epilogues of the law collections.
The timeless dimensions of the law collections implied that the legal texts existed
continuously.
The content of the provisions of the law collections were secondary, in the investigation
to define it.
Lafont (1994:97) concludes, in light of this, that the named mīšarum inscriptions are not legal
principles, but an activity of the king. Its contents are temporary and retroactive, applying
only to subject matters it regulates or describes, mostly for social and or economic reasons.
he inscriptions are “canonised” by the transfer of the contents through time, which increases
the reforming value of the inscriptions (Lafont 1994:97).
Matthews (1994:120) does not agree that the ancient Near Eastern law was static, since he
believes that there was some development, however slow. The law would change and adapt
to changing economic, social and life circumstances, to comply with the needs of society
(Matthews 1994:120).
Patrick (1994:152) contends that Westbrook replaced one evolutionary model with another.
He argues that Westbrook mistakenly thinks that Biblical and ancient Near Eastern law
contained primitive and reconstructive layers within the texts. Patrick (1994:153) believes
that all the legal documents in the ancient Near East displayed a relatively advanced stage of
development and in opposite to this, Westbrook theorises a cultural experience of sociopolitical and intellectual stagnation.
Westbrook envisages an evolution within the law
collections and therefore uses an evolutionary concept; however presenting the ancient Near
East as politically and culturally the same, static, means that when studying the legal
44
documents over different times and places, they too will present the same thinking and
doctrines (Patrick 1994:153).
The researcher considers that the attempt to categorise the law traditions of the ancient Near
East in one common tradition must be applied with caution. It seems that the status quo was
important in so far to promote certainty between kinship relationships, however these rules or
law traditions do differ in different time-periods and places in the ancient Near East.
Unfortunately, Westbrook did not qualify the components of the common tradition theory and
maybe then, less resistance would have been shown against his theory (cf. Claassens
2002:139-140).
2.4.7
Openness
Only the necessary facts were recorded on a clay tablet. Veenhof (2003:147) refers to this as
similar to bookkeeping; therefore the function of written legal documents was only to record
those transactions that had implications for the persons involved and who had access to
“scribal expertise”.
Oaths took place in public: also in the temple.35 The practice was detected in other law
transactions as well; and Veenhof
00
transactions for “proof of public interest”.
1 assumes that “professionals” were part of the
e contends that officials served as “publicity
witnesses”, but their functions and aims are not clear.
e is unsure if these officials were paid
to act like the “public notaries” of today Veenhof 00 147 .
Driving a peg or nail in the foundations of a building was a custom especially with respect to
temples, which acted as a symbol that the building was the property of the god: a later
inscription on it followed and the same procedures were followed for houses (Veenhof
2003:148).
Gelb (1948) examines a clay nail from the Old Babylonian period of King
ammu-r pi.
he
Akkadian word for nail is sikkatum: these nails are made from clay, wood (see the Sumerian
word GI-KAK = sikkatum), or metal. In terms of the pre-Sargonic inscriptions from Telloh
and Old Babylonian texts from Susa, nails were driven into the wall. This was done after the
35
Cf. the three division texts in Part C of Sippar S20, S25 and S26 (volume 2).
45
transfer of property. It is a symbolic act symbolising the “fixing and making known” of a
change of ownership (Gelb 1948:267). Nails and cones were also used in the building of
public places of royalty. Later in time, these were a symbol for “commemorating the erection
of an edifice by a certain person” for instance the clay nail of
ammu-r pi describing the
construction of the wall of Sippar. By that act, it was publically proclaimed that the king had
built the wall for the sun god ṣamaš. Gelb (1948) advocates that these nails and cones had the
same functions as in present-day public commemoration structures.
Openness as a characteristic of ancient Near Eastern law tradition is also found in the
operation of a litigation process. In a litigation text derived from Old Babylonian Tell
Harmal, light is shed on the details of a once concluded division agreement (Ellis 1974:148149). This also demonstrates the importance of the presence of oral witnesses in agreements.
The litigation text is an elementary recording of a dispute between Ilšu-na ir and Ipquša.
Probably the two brothers, Ilšu-na ir and Ilšu-ibbišu, partook in a division agreement of their
father’s paternal estate.
owever, they did not record their agreement, or the measurements
of the fields were uncertain, or dubiously recorded. Whatever the case may be, in this dispute
resolving the division of a field of unknown dimensions, the solution required certain
“knowledge” from the other brother, Ilšu-ibbišu, or anyone else in the gate of Belgašer. It
probably meant that the previous agreement had been concluded at the gate, and they
witnessed how the field was equally divided. In the settlement agreement between the
disputing parties, the terms and measurements of the field’s division were not recorded. This
was probably not necessary, for not only were an oath and witnesses involved, but also,
importantly, a sanction clause with a heavy fine was in place: should a claimant later dispute
this agreement, he had to pay five minas of silver (cf. Ellis 1974:148-149 regarding the
outline of this text, following with her discussions).
2.5 CONCLUSIONS
The communication mediums of the marginalised literate members of Old Babylonian society
were more important than the written word, in contrast with present-day law and the way in
which today’s society in a predominantly literate world would perceive law and its practical
function. The limitation of the main study of cuneiform documents - and, for that matter,
cuneiform law - lay in the limitations of cuneiform clay tablets (Westbrook 2003:1). In
addition, law experience is a multi-dimensional phenomenon. The practice of law reflects the
46
way society analyses itself and projects its image to the world (Smith & Weisstub 1983:vii).
Subsequently, the Mesopotamian society is different from ours and can be easily
misunderstood.
Roth (1998; 1987) advocates the re-examination of social categories emphasising
interpretational problems in legal texts and other documents regarding social factors and
categories. A person functions differently in society within certain expectations in his/her
role and position, influenced by factors such as age, gender, kinship relations, economic and
social class. Boecker (1980) stresses the caution of using terms from present-day law in
interpreting ancient texts in this light.
Furthermore, Westbrook
00
points out that today we only have “a series of snapshots
scattered at random in time and place”. In our recognition of those sources available in
ancient Babylonia, after negotiating the filters of discovering, preservation and decipherment,
we must re-orient ourselves in the world of multi-sensory communication, a world of
performance legal traditions of which the written medium is a subordinate medium in the
transmission and preservation of legal traditions.
However, as Bottéro (1992:21)
optimistically remarks, “We have to make do with what we have!”
With this as background, some of the characteristics of Old Babylonian legal tradition were
outlined. They are not a numerus clausus, but only a reflection and supplement to the
understanding of Old Babylonian thought in its practice of legal traditions. They give some
insight into the dynamics and functions of Old Babylonian family deceased division
agreements.
The characteristics are a logical consequence, with some overlapping and exerting a mirror
effect on each other. They are non-specialisation, religious impact, kingship and institutional
enforcement, group or social orientation, concrete nature of legal acts, status quo/static nature
of legal traditions and openness.
Non-specialisation indicates that legal traditions, rules and institutions were not specialised;
therefore, the legal traditions were not defined in concepts of abstraction and separation.
Legal traditions were intertwined with everyday life. When examining a Mesopotamian
contract, we do not perceive the abstract principles of a law contract but rather those of a
47
performative legal traditions’ contract.
Religious impact considers the fact that religion was intrinsically connected to the
performance of legal traditions and society. Religion influenced the meanings of the different
“law” terms with different approaches. Terms such as mīšarum or nìg-si-sá mean “equality,
fairness or justice”; however, the religious principles governing this and the gods in which the
Mesopotamians believed, played a significant role in enhancing the meaning of the terms.
For example, ṣamaš Sumerian Utu) meant order and justice. Based on these terms, a
structure of order was created with the king as the earthly representative of the gods. The
scribes in their capacity as writers were responsible for capturing the high and noble ideals of
justice, and written records are an “extremely valuable conduit” of “people's discontent,
humiliation, and desperation”
Zaccagnini 1994 8 -283).
Zaccagnini (1994:282-283)
believes that the ancient Mesopotamians “as servants of the gods... obtain justice by applying
the will of the gods to their current circumstances” Zaccagnini 1994 8 .
Kingship and institutional enforcement play a distinct and integral role in society and in the
application and implementation of Old Babylonian legal traditions and different relationships
in Old Babylonian society. Mesopotamian judicial institutions carried out the tasks to settle
disputes between individuals and groups; enforce their decisions and inflict punishment on
those who offended against society as a whole (i.e. in present-day terms, criminals);
administer certain enactments of the government; and act as an agency in authenticating
official records of certain acts as legally valid. The king seemed to interfere only if his own
interests were at stake.
Ancient civilisations needed only a general attitude towards what
they considered justice (Lemche 1995:1714). The aim in Mesopotamian law traditions is
harmony.
Social and group orientation is based on a kinship ideology and the interests of the group,
together with the importance of maintaining good relationships. Mesopotamian society was
socially orientated in the sense that emphasis was placed on the interests of the group. In their
dealings with order and harmony, the ancient Mesopotamians were group orientated while
personal status and honour played an important role. Maintaining good relationships was
important in the Old Babylonian family life. Kinship relationships played a role. FrymerKensky (1981) stresses the importance of the latter and examines the social role of each
person in his or her particular juridical relationship position in the family as an integral part of
48
the latter. Leemans (1986) shows the difference in the geographical setting of northern and
southern Mesopotamia regarding social kinship relationships, albeit a family orientation or
focus on individual rights of co-ownership. Fleishman (2001) regards kinship relations as
sometimes extending further than just a biological connection, also including an adoptive
status. Different kinship relationships can be explored and reflect the existence of different
layers of meanings of such relationships, with respect to ancient Mesopotamian legal
traditions and their obligations.
Another characteristic is the concrete nature of legal acts. Legal traditions were performed
and this concreteness supports the legal act as a whole. Written work is only a reflection of a
legal situation. Written documents were normally a reflection of a legal situation that took
place, and normally did not serve as evidence. The concrete aspect of this legal practice
means that writing was less important and did not support the legal act as a whole. Ancient
law received its meaning directly in terms of a sensed experience. Factual principles, rather
than the western mode of abstract conceptions, are applied (Smith & Weisstub 1983:17). The
performance of legal traditions was through symbolism and “multi-sensory communication”
(cf. Hibbits 1992; Malul 1988; Kruger 1998:141).
As a further characteristic, the status quo/static nature of legal traditions was important and
practically achievable due to the openness and public nature of different legal acts and
agreements (cf. discussions by Hibbits 1992; Westbrook 1995). Some scholars such as
Renger (1979) and Westbrook (1994) consider ancient Near Eastern law traditions to be static
of nature, whereas others such as Greengus (1994), Buss (1994), Levinson (1994) Lafont
(1994), Matthews (1994) and Patrick (1994) advance various arguments with different
emphases in disagreeing with this statement.
Openness as a characteristic indicates the public nature of the oaths, witnesses and legal acts.
These characteristics are present in the performance of a performance contract such as a
family deceased division agreement. Only the necessary facts were recorded on a clay tablet.
Veenhof (2003:147) refers to this as similar to bookkeeping; therefore, the function of written
legal documents was only to record those transactions that had implications for the persons
involved and who had access to “scribal expertise”.
aths took place in public and also in the
temple. Witnesses played a significant important role in the remembrance of details of legal
acts performed in front of them.
49
The outline of some of the characteristics is to give, in general, a reflection on the features and
qualities of ancient Mesopotamian legal traditions. As different subjects are investigated and
ancient Mesopotamian life and customs are studied on the basis of existing and newlydiscovered excavations of cuneiform tablets and their decipherment, new insights regarding
certain city-states and time-periods will probably emerge.
50
PART A
ASPECTS OF OLD BABYLONIAN LIFE
CHAPTER THREE
AGRICULTURAL AND ARCHITECTURAL ASPECTS
“The most remarkable innovation in Mesopotamian civilisation is urbanism.
The idea of the city as a heterogeneous, complex, messy, constantly changing
but ultimately viable concept for human society was a Mesopotamian
invention”
(Leick 2001:xviii).
In the city-states of Old Babylonian Larsa, Nippur and Sippar there were
certain legal practices and unique circumstances between family members,
which influenced legal decision-making. These practices, together with the
type of communally-held assets, against a background of architectural and
agricultural elements, played a role in the final consensus between
contractual parties. Furthermore, the contractual parties’ means also
determined which solutions and mechanisms were used to divide the
communally-inherited assets, thereby enabling the change from coownership to sole-ownership.
3.1 INTRODUCTION
Agricultural and architectural factors and elements, together with each unique situation in a
family, play a quintessential role and influence how co-beneficiaries, now contractual parties,
ingeniously devise the division of a communally-shared inheritance property.
In this chapter, the Old Babylonian city life and landscape elements, with their possible
influence on division agreements, are introduced.
The practical implications of family deceased division agreements are outlined to explain the
51
challenges that practical problems present in the implementation of a division agreement.
In addition, some examples of texts from Old Babylonian Larsa, Nippur and Sippar are
provided to complement the discussion on the ways and methods of dividing the communallyshared assets of contractual parties against the background of Old Babylonia city life and
landscape.
3.2 OLD BABYLONIAN CITY LIFE AND LANDSCAPE
3.2.1
Introduction
As regards to explorations, excavations, investigations and discussions during the 19th
century BCE regarding the rural and city landscape of the immediate ancient Near East,
limited information was mainly influenced by two stories which offered a “strong mythical
flavour and appeal”. Firstly, there was the story of the Tower of Babel as a “metaphor for a
town” and secondly, the Garden of Eden as a “metaphor for the countryside”.
These
metaphors “characterized” the elements of rise and fall. The Tower of Babel gave rise to the
element of the city as “unfinished and abandoned” and the Garden of Eden as “closed for
humankind” Liverani 1996 1-2).
Scholars in the 19th century CE found ruins instead of houses, and a desert instead of a
garden, and thus the early approaches of scholars were covered in a shroud of negativity.
Their explorations, excavations and investigations from the second half of the 19th century
BCE show later a different picture, though (Liverani 1996:2).36 Later years’ discussions37
Cf. Liverani’s 1996 approach to the Mesopotamian landscape from “late-Uruk” documents to NeoBabylonian documents.
37
Some of the following contributions are outline regarding old Babylonian city life and landscape, which
include specific topics and/or an overview. Ellis (1977) regarding an agricultural administrative archive;
Ellickson & Thorland (1995) did an overall study on land law (traditions) in Mesopotamia, Egypt and Israel and
Earl (2000) discusses archaeology, property and prehistory. Stol (1995) investigates various expressions of old
Babylonian cattle and Stol (1998) studies old Babylonian fields found in texts. Graef (2002) examines an
account of the redistribution of land to soldiers in late old Babylonian Sippar- mn num, which is another kind
of division agreement. Gruber (1948) discusses irrigation and land use in Mesopotamia. Harris (1963) is wellknown for her contributions regarding Sippar especially: in this regard she investigates the organisation and
administration of the cloister in Babylonia. Cf. arris 197 wherein she discusses old Babylonian Sippar’s
social and economic institutions that influence the city life of Sippar, especially regarding the temple and palace.
Leemans (1954) proposed a different approach to the legal and economic records from the kingdom of Larsa and
asserts that he does not consider communally-shared property as significant as had been argued, adding that the
focus was more on private ownership and the choice of individuals. Renger (1979) discusses private ownership
and its interaction with the temple, palace and private business in the Old Babylonian period. Renger (1979)
expresses the opinion that although private property did exist, it was not a dominant enterprise. Leick (2001)
36
52
focused on different aspects of landscape and city life. These discussion by scholars were
more productive, owing to the availability and aid of textual and archaeological sources, of
which many thousands of uncovered clay tablets are still to be transcribed, and/or translated
and discussed by scholars.38
3.2.2
Old Babylonian landscape and agricultural factors
Gruber (1948:69) divide the “ancient man’s” natural world into four basic elements namely
earth, fire, water and air, of which water is “the ever-moving, the fluidity of all things”. In
cultural development, these elements play a fundamental role. Thus, the “control of natural
water resources and the utilization of water” for agricultural purposes were just as important
as the discovery of fire (Gruber 1948:70).39
furnishes a summary and condensed account of the invention of the city in Mesopotamia and different citystates, focussing on some of the latter, while Van de Mieroop (1997) discusses the Mesopotamian city and
society in an overview referring to politics, economy, social life and the culture of the city, which he considers as
“urbanism”. Mellink (1983) offers a summarised account of archaeology in Asia Minor. Oats (1990) examines
innovations in mud-brick and its decorative and structural techniques in Mesopotamia. Oppenheim (1965)
investigates “Royal Gardens in Mesopotamia”. Renger (1995) gives an account of institutional, communal and
individual ownership or possession of arable land in ancient Mesopotamia from the end of the fourth to the end
of the first millennium. Slansky (2000) advocates a new approach to the classification, historiography and
monumental authority of the Babylonian “narûs (kudurrus ”. Speiser (1956) investigates the “‘Coming’ and
‘Going’ at th˹ City Gat˹”. Steinkeller (1981) explains the renting of fields in early Mesopotamia and the
development of the concept of “interest” in Sumerian. Stol (1982) discusses state and private business in the
land of Larsa and made a contribution in his collected volume of work (1976) regarding the chronology,
geography, political and social organization of old Babylonia. Stone & Stone (1981) examine the patterns of
residence in old Babylonian Nippur, while Stone & Owen (1991) in their discussion of adoption agreements of
Old Babylonian Nippur and the archive of Mannum-mešu-li ur investigated the residence patterns of the city
and rural landscape. Zagarell (1986) examines the nature of late prehistoric and early historic Mesopotamian
trade and society in question and the modes of production characterising Mesopotamia in an economic evolution,
contributing to the growth of the early Mesopotamian city-states. Various scholars remark on his opinions. One
suggestion is that the temple/palace (the latter in the earlier stage seems to have served both functions) occupied
a large share in the development of trade, exchange, and long-distance networks.
38
For instance Liverani (1996:20) is of the opinion that the temple and family properties still co-exist in the
old Babylonian period.
owever, there are considerably more private documents than “public” records.
higher concentration of adoption, inheritance, rents and sales agreements occurs (Liverani 1996:20). According
to Liverani 1996 0 when one looks at the division agreements, there is a “process of progressive cumulative
partition of the fields into strips”.
39
Scholars have made various contributions regarding the agriculture of the ancient Near East. Wilkinson
(1990) describes an in-depth look at soil development and early land use in the Jazira Region, where he discusses
soil types, fertility and land use, soil development over time and the development of land use over a period in the
Jazira Region, as well as land-use intensity and carrying capacity. Wilkinson (1994) in his discussion of
“structure and dynamics of dry-farming states in Upper Mesopotamia” stated that “insufficient emphasis has
been placed upon the role of animal production or nomadic pastoralism” due to the type of field evidence used
such as field scatters, radial hollows, and movement of cereals, which all relate to cultivation. “By defining
both the intensity and the limits of the ‘sown’ lands it should be possible to sketch, albeit by default, the
important pastoral component of early states” Wilkinson 1994 04 .
e furnished data and calculations,
following the pioneering studies of ancient settlement patterns in Mesopotamia. Hunt (1995) discusses
Wilkinson’s article 1994 on dry farming in upper Mesopotamia and comments that still to be answered is at
what stage humans want to eat well and increase their consumption of animal products, once they have produced
a sufficient grain surplus. The grain surplus could also be produced to supply to the elite; questions arise about
53
Today, the lower valleys of the Euphrates and Tigris rivers of ancient Mesopotamia are
known for their dry and barren desert an “experimental station” controls the water flow. As
long as the forested areas received adequate rainfall, the food supply was secured through
hunting, fishing and collecting (Gruber 1948:70). As the forests and animals diminished over
time, the populace had to resort to horticulture. For this a good supply of water was needed
which were obtained from the existing rivers and their branches. Regarding the water needs
of ancient Mesopotamia, an ancient Greek historian, Herodotus, in his travellings to these
regions observed the following:
Very little rain falls in the land of Assyria, and thus little is what nourishes, the
root of the crop; but it is in its watering from the river that the corn (sitos) crop
wins its ripeness and the bread grain comes into being. It is not as in Egypt;
where the river itself rises over the fields; in Babylon the watering is done by
hand-operated swing beams. For all the Babylonian country, as in the case of
Egypt is cut up with canals… f all the lands that we know, this is for the most
fertile for Demeter’s crop Herodotus i:193, cited by Moorey 1999:1).
Controlling and taming the Tigris and Euphrates rivers became essential for the survival of
the communities around them and this process assisted in “building the social fabric” of the
inhabitants (Gruber 1948:70;
ruška 007 6-58).40 It was suggested by scholars that the
Mesopotamian cities were built on the branches of the rivers for transportation and commerce
purposes, although closer studies of archaeological evidence revealed that some of the cities,
for instance Uruk, were not situated in an area with a marsh or shallow lagoon (Gruber
1948:71). Gruber opines that an “isolated island” was developed through water drainage,
because some of the first settlers built their huts on stilts to gain better access to the supply of
fish in the rivers. He mentions that through these draining techniques, water was removed.
He refers to this process as “extensive ditch works” Gruber 1948 70-71).41
the “non-agricultural households” and whether they are “non-agricultural artisans exchanging for grain or rent
collectors” unt 199 90 . Cf. Jones (1952) regarding some previous studies done in ancient Mesopotamian
agriculture and more recent contributions by Zeder (1991), Cowan & Watson (1992) and Miller & Wetterstrom
(2000).
40
Cf. Rowton (1967) with a discussion of “water rights at an ‘international’ level” regarding a dispute over
water rights between an old Babylonian King Rīm-Sîn of Larsa and the king of a neighbouring state, probably
the king of Ešnunna Rowton 1967 68-271). He investigates some texts, especially a Larsa document, to
establish which officials were responsible for the silt removal: it seems that those who possessed large holdings
along the canal were responsible for this laborious task (Rowton 1967:272).
41
However, Gruber (1948:72-73) states that he did not know how the valley was irrigated and refers to the
Sumerians (4000-3000 BCE) as the first group who made use of irrigation canals. A thousand years later in the
dynastic period we encounter written records, which refer to the construction of canals, which the king
proclaims, should be repaired and new ones dug for his political advancement. It is suggested that the quantity
of water drained from one city to another could be the cause of feuds between the cities, where one city was in a
54
Furthermore, Flannery (1965)42 argues that regarding “agriculture and grazing potential”
Mesopotamia are divided into four environmental zones, namely the alluvial plain of
Mesopotamia, the steppe land of Assyria, the woodland belt of the Zagros Mountains and the
edge of the high central plateau of Iran (Flannery 1965:1247). Previous scholars seem to
consider these zones as a “cultural and natural area”, a region characterised by a “certain flora
and fauna and exploited by a certain group of inhabitants who knew it particularly well”.
Flannery (1965:1255) criticises this viewpoint and states that there is no evidence that this
was due to the “brilliant invention” of a group or “product of a single environmental zone”. It
is more likely that there was a “long process of changing ecological relationships between
groups of men (living at varying altitudes and in different environmental settings) and the
locally available plants and animals which they had been exploiting on a shifting, seasonal
basis” (Flannery 1965:1255).43
3.2.3
Old Babylonian city life and house structures
Cities in the Old Babylonian world view were important, for each city was seen as the
property of a certain great god who guide its citizens in their destiny and gave them
protection. The inhabitants were identified in the textual records as coming from a specific
city (Crawford 2007:82). Even in Sippar, the contractual parties in some of the division
agreements swore an oath to their city.
It is difficult to gain clear insight in the nature of city life44 so we have to resort to some
position to drain or interfere with the water supply of the other city (Gruber 1948:72-73). Jacobsen & Adams
(1958) opine in their contribution that the progressive changes in soil salinity and sedimentations contributed to
the deterioration of ancient civilizations. They stress that most of the settlements were small villages and that the
dominant political centres were more towns than cities, because of the combination of sail salinity and
maintenance requirements of the channels (Jacobson & Adams 1958:1252-1258). Cf. Helbaek (1960).
42
Flannery (1965) placed a different emphasis on the region from that of Gruber (1948). Cf. Zarins (1990)
who discusses the origins of pastoral nomads and contends that the presence of the term early in the historical
record, indicates that the pastoral settled continuum described for the later third and second millennia BCE, was
already established by ca. 2900 BCE. Cf. Moore (1982) who provides a new approach to the model for the
development of agriculture and sedentary life in the ancient Near East and proposed a model based on
archaeological and other evidence acquired mainly during the 1960s, regarding the question of agricultural
origins in the ancient Near East. He advocates new directions of enquiry for future research in the formation of
agricultural societies in the ancient Near East. He opines that humankind enjoyed a “symbiotic relationship”
with certain of the animal species as far as the Middle Palaeolithic time-period and that “hunter-gatherers were
familiar with hundreds of species of plants and knew how to process them. They not only regularly harvested
but also deliberately sowed them” Moore 198
7.
43
he Sumerian composition of the “farmer’s instruction”, also “Georgica Sumerica” or “farmer
lamanac” as discussed by Civil (1994:1-6 gives some insight of an “plougman instructions on farming”,
which include sowing, harvesting and transport of grain.
44
Cf. Müller (1940) who discusses different types of houses found in Mesopotamia and makes wide
55
guesswork based on translated texts. For Postgate (1992:76) in a city-state, there seems to be
a “sense of the busy hum of men”; he refers to a literary text from the “Curse on
kkad the
city in its hey-day”
So that the warehouses would be provisioned,
Those dwellings would be founded in that city,
That its people would eat splendid food,
That its people would drink splendid beverages,
That those bathed (for holidays) would rejoice in the courtyards,
That the people would throng the places of celebration,
Those acquaintances would dine together,
Those foreigners would cruise about like unusual birds in the sky,
That (even) Marhaši would be re-entered on the (tribute) rolls,
That monkeys, mighty elephants, water buffalo, exotic animals,
Would jostle each other in the public squares…
Holy Inanna did not sleep
(Postgate 1992:78).
The household of ancient Mesopotamia45 is considered a “critical level of cultural and social
activity”.46 Apart from sustaining itself, it contributes to the labour and/or services of other
households by exchanging and trading commodities with them (Matthews 2003:169). With
geographical and temporal comparisons, which include Egypt, Arabia, Cyprus, Crete, Anatolia etc. regarding
different rooms found in houses. Yoffee (1988) examines texts in the Ashmolean Museum at Oxford. Cf.
Donbaz & Yoffee (1986). Yoffee (1988) discusses a family archive from the village of Dilbat regarding the
nature of house and land sales at Dilbat, and examines the interior remodelling and re-building of houses at
Dilbat, within the large scope of ethnoarcheological studies, on the correlation of residential architecture, with
the size and nature of household compositions. Yoffee (1995) also examines work done in recent years
regarding the political economy of the earliest Mesopotamian states, which includes the organisation of the
temple and palace estates. Evidence shows “that local systems of power and authority coexisted with and often
resisted centralised governments” Yoffee 199 81 . Social institutions and individuals play an important role
as political forces. Cf. wherein Yoffee (1979) reviews foundations on which archaeologists have based their
concepts of social evolution. A critical test of the assumptions of “evolutionism” is therefore provided by case
studies of Mesopotamian civilisation in which materials from both pre-literate and literate times are examined.
Steadman (1996) outlines recent trends in the archaeology of architecture (mainly domestic in nature), including
current work in household archaeology and spatial patterning analysis of architectural remains, and discusses the
new models and methodologies generated to interpret these remains. The main areas covered in this review
include the New World, Mesoamerica in particular, and Europe with a general focuses on recent work in the
ancient Near East. Steadman (1996) contends that the archaeology of architecture is a multidisciplinary field,
requiring researchers as anthropologists, geographers, architects, and linguists, etc. He applauds the
“interaction” of these fields of specialities. Oppenheim (1964:109-142) affords a sound insight into the city life
and urbanism of ancient Mesopotamia, in particular the old Babylonian period.
45
Cf. Matthews’s 00 169-182) synoptic outline of archaeological studies carried out by archaeologists
such as Roaf on houses of the Ubaid-period (2003:170-171); Stone & Stone (1981) regarding early second
millennium houses at Nippur (Matthews 2003:171-174; Stone 1987 ; Matthews and Postgate‘s analysis of
sediments and deposits at Abu Salabikh and procedures (Matthews 2003:174-176; Postgate 1990b ; Brusacsco’s
study of old Babylonian houses at Ur (Matthews 2003:176-178 and Wattenmaker’s household economics of
later third millennium Mesopotamian town (Matthews 2003:178-179).
46
Steadman 1996
states that household archaeology is important, for “households embody and
underlie the organization of a society at its most basic level; they can therefore serve as sensitive indicators of
evolutionary change in social organization”.
56
the studying of the architecture of houses in ancient Mesopotamia, it “reflects the social needs
of its inhabitants and as such is a sensitive indicator not only of variations in wealth but also
of variations in social organisation” (Stone & Stone 1981:19).47 Stone & Stone (1981:19)
apply this to structures and texts that were excavated during the Old Babylonian Nippur era.
Two of the texts originated from House F and six texts from House I. These texts reflect
interesting points, such as social needs, inheritance and family structure.
Architectural
modifications were made to achieve this (Stone & Stone 1981:19-20).48
However, the area known as Mesopotamia was an unsuitable locality to erect buildings due to
the following reasons: it had an alluvial plain, while there were no suitable building materials
present, except for the mud deposits that were obtained from the Euphrates and Tigris rivers.49
These mud deposits were used to produce sun-dried bricks for private and public buildings.50
Zettler 00 hopes for a continuation of efforts to “meld” archaeological and written sources, stressing
that texts are “inherently biased” and only refer to a certain group of a society, namely the very rich or “urbane
elites”. herefore, archaeologically, artefacts may “‘flesh out’ or enrich textual data and add new dimensions to
text-based historical reconstructions” Zettler 00 9 . On the one hand, there is the Mesopotamian society
founded on “highly productive irrigation and dry farming agriculture, with animals ─ primarily sheep and
goat─husbandry and the exploitation of wild animals in more marginal areas. On the other hand there are
lexical, literary, and legal and administrative/economic texts providing a wealth of data on subsistence activities”
(Zettler 2003:29). The canonical lexical series HAR-ra = hubullu includes lists of trees, reeds and reed objects,
domestic and wild animals, plants, fish and birds, beer, barley and its products, honey and other foodstuffs
(Oppenheim 1964:247; Zettler 2003:29). Postgate (1988) postulated several possible explanations for lack of
fruit in Isin-Larsa/Old Babylonia, stating that maybe it was no longer grown or imported due to the deterioration
in the administration of irrigation, or a wrong reflection of the situation was given in textual records. This
demonstrates deeper understanding of Mesopotamian irrigations systems. The question, as provoked by the
Sumerian term nag-ku5. The nag-ku5 is a lateral reservoir or pond to which excess floodwaters could be
diverted. In southern Mesopotamia, the floods of the Tigris and Euphrates came at the time of the spring harvests
and so posed distinct challenges for farmers. Though not the nag-ku5’s primary function, once the floods had
subsided, stored excesses could be used for irrigation (Civil 1994:132-34). As Postgate (1988:ix) notes, nag-ku5
does not correspond to any elements of the traditional irrigation system so, perhaps we have to reckon with a
somewhat ancient irrigated landscape or perhaps one even radically different from that of today.
48
Stone 1987
looks at “textual, archaeological and architectural data” and more specifically, “the
linkage of textual information … derived from artefacts and architectural plans of house and street patterns”.
Stone (1987:2) states that no proper assessment has been made of Mesopotamian residential areas and the
following questions remain which she explores in her thesis namely “What was the basic residential unit˹ ow
large were these units? What was the basis for their composition? What was the relationship between large
institutions and such residential areas? How were the different units separated from one another? What common
features were to be seen in all such units˹ Were residential units grouped into large quarters˹” Stone 1987
offered an insightful examination of the named neighbourhoods of ancient Old Babylonian Nippur. She extended
arris’s (1975) research on the gagûm gathered from Isin-Larsa and Old Babylonian texts, which were occupied
by the nadītum of Sippar, and states that it is “clearly a specialized residential area, one reserved for a
particularly secluded group” with an overseer, a hazannum who was a kind of “chief magistrate, mayor,
burgomaster, headman” Stone 1987 5).
49
Cf. discussions by Moorey (1999). He reflects on surveys on archaeological evidence for craft and
craftsmanship in the ancient Near East from 8000-300 BCE. From pages 333-364, Moorey (1999) discusses
various building materials, brickmaking, decorative techniques in mud brick layouts and different brickworks.
50
Wiseman (1972) made an interesting contribution in discussing a small tablet BM38217 and theorises
whether the plan on the clay tablet represents an actual building or is an “ideal” school exercise drawn up by an
architect. He also refers to a study of twenty-one ground plans of buildings listed and illustrated by Heinrich and
Seidl, which show that in the early old-Babylonian period, the walls were thick and doorways were marked by
47
57
There were also a scarcity of energy supplies51 so baked bricks were used only for drains,
damp courses, bathroom floors and courtyard pavements. Bitumen obtained from Hit on the
Euphrates, served as mortar in construction (Moorey 1999:335). It had the special quality of
being waterproof. Reeds and ribs of palm fronds were used for the roof and ceilings, and
other temporary structures (Frankfort 1950:98).
ats 1990 88 studied texts on the “rectangular mould-made bricks of standard size” and
mentions that they were “common building material” in the ancient Near East which are still
in use today.52
For the purposes of this study, regarding the division of the house into different sections, the
characteristics of this building material are useful as it is renowned for its “adaptability and
ease of construction”
ats 1990 89 .
herefore, houses could be “readily cut [up] and
shaped such as the insertion of a new doorway, niche or window”. No skills were required for
the erection of more simple structures.
Plenty of sunshine was required for the “drying process”. The earth (mud) was readily
available in great quantities, the same was not true for water and straw. Great quantities of
water were needed, especially for mixing plaster, so this could have been a difficulty. The
availability of straw depended on the harvest of the previous year, so this too could have
presented a problem (Oats 1990:389).
The researcher believes that the problems mentioned above could pose difficulties for the
construction of huge buildings and temples, but lesser for the renovation and alteration of a
house to suit the needs of the contractual parties in the division of the house, into different
clear openings. There are some indications of the purpose or size of the buildings (Wiseman 1972:145). He
argues that although it could be an outline by an architect of a “yet unidentified public building”, “the unusually
large building in the court and the lateral chamber may show that this too is a scribal essay made in the course of
his education as a surveyor.” He makes reference to scribes that work in the field and conduct other surveys and
he also refers to the named “land-registrar” šassukku) who although not called a “scribe”, is listed “after the
various types of specialist scribes in lexical lists” and according to him “belonged to the ld Babylonian
educated classes” Wiseman 197 146 . He also contends that the “land-registrar himself might work under a
high administrative official (zazakku) who until Old Babylonian times was listed high up in the hierarchy of
scribes and, though primarily occupied in assessing taxes on real estate, was engaged in survey work” Wiseman
1972:147).
51
Fuel was used to melt bitumen and mix to it with mineral and vegetable mixtures (Moorey 1999:334).
52
Its composition consists of soil, chopped straw and water which were “shovelled and trodden into a
consistent mixture” forming bricks in an “open mould” and laid out in the sun to dry. The mortar was made of
the same composition, but was “more plastic” for it was not “exposed to the drying process” ats 1990 88 .
58
sections.
Regarding the city life: the streets were narrow, which provided protection from the elements,
such as the sun and dust from the desert winds. The city’s streets were mostly crooked and
the dead ends were closed off by gates, creating an isolated community. Some streets even
had names (Van de Mieroop 1997:79).
The houses were close to each other, similarly assisting in protection against heat and dust
(Van de Mieroop 1997:81). The layouts of rooms differed; however, two basic variants
occurred: “a set of rooms merged together in an agglutinative pattern” and a courtyard with
surrounding rooms, accessed only by the courtyard, which assisted against the heat during the
day and the cold at night. There were almost no outside windows, and very thick brick inner
and outer walls, making the rooms small, which necessitated that domestic activities took
place in the courtyard. Second storeys did not exist in the south of Mesopotamia, although in
the north there is some evidence of them and scholars assume that inhabitants slept on the
roof (Van de Mieroop 1997:81).
3.3 PRACTICAL IMPLICATIONS OF FAMILY DECEASED DIVISION AGREEMENTS
The beneficiaries devised some form of co-operation within a family discussion, as well as
some practical reasoning to facilitate the shift from co-ownership to sole ownership, regarding
some or all of the communally held inherited assets.
The researcher suggests that in a complicated estate containing garden/s, field/s, house/s,
stock, slaves and household goods, the procedure probably first included the compilation of
an inventory. Each asset’s value was calculated, perhaps with some offerings made to the
deceased parent.53 Prima facie, the procedure looks elementary and easily manageable, but
53
According to Bayliss (1973:119) from the evidence of a few curse formulae kudurrus inscriptions
referring to a beneficiary of the deceased estate and specific terminology, it seems that funerary cult duties are
closely connected with the inheritance process, for instance “May Ninurta deprive him of an heir, a pourer of
water”; “May Ninurta make him forfeit his heir, his pourer of water”; “May Ninurta cause him not to acquire
an heir, a pourer of water” Bayliss 197 1 1 .
owever, this “special ceremonial role of the eldest son” in the
ld Babylonian period “cannot conclusively be connected with the funerary cult”. She suggested that the
“funerary cult was a mechanism both for the perpetuation of the identity of an individual after his death and for
the alleviation of tensions, anxiety and guilt experienced on the death of a relative”. Bayliss (1973:121)
concludes that probably there would be “moral pressure” on sons who succeeded their fathers. In no popular or
royal cults are there “any direct link with inheritance or with a special role of the eldest son in inheritance”
(Bayliss 1973:125). Postgate (1992:98-99) states that in early dynastic times until the Old Babylonian period
59
the needs of the contractual parties, and the elements of the Old Babylonian architectural
layout and agricultural landscape, could cause such a division to be complex, which is not
always noticeable in the details of the recorded family deceased division agreement.
For instance in the division agreements of Nippur54 as well as in one of Larsa,55 an award was
made to the eldest brother, which meant that a certain percentage of the preference portion
first had to be set aside before the actual division could take place;56 thereafter the assets
could be apportioned evenly among the contractual parties.
In some Larsa,57 Nippur58 and Sippar59 agreements lots were drawn60 and the portions were
allocated as sole ownership to the persuasive contractual party.
Where one contractual party received more value in terms of its assets than the others, the
parties could agree to bring in additional assets or money to equalise the division, in exact
value portions (in-an-an-búr).61 In other agreements, the values and assets were not divided
up into equal portions; thus, a kind of donation took place, while in yet other agreements an
equal division of assets took place, which showed that an exchange had taken place.
The sale (“bringing in”), donation and/or exchange mechanisms in the agreements are the
solutions that the parties used to alter co-ownership of the communally-shared inheritance to
sole ownership: in each agreement, one or all of these solutions could be applied, regarding all
or some of the communally held inherited assets.
there was a common practice of burying the dead in the house; it seems in the early periods this is the reason
why the eldest son inherited the house. However, regarding this aspect of the religion, cult and offerings there
are no references in the Old Babylonian period, although personal gods exist and references are made to them in
old Babylonian conversational greetings (Postgate 1992:99).
54
Cf. N1, N2, N6, N8, N9 and N10 (6 of the 10 agreements) Part C Nippur (gišbanšur zag-gú-lá síb-ta
mu-nam-šeš-gal-šè).
55
Cf. L10 Part C Larsa (1 of the 10 agreements).
56
No preference portion is found in the 26 texts of Sippar.
57
Cf. L5, (giššub-ba) L6 (išqu), L8 (išqu), L10 (giššub-ba). This is found in 4 of the 10 agreements. Note
Part C Larsa (giššub-ba/ išqu).
58
Cf. N1, N2, N4, N5, N7, N8, N9, N10. This element is found in 8 of the 10 agreements. Note Part C
Nippur (gišsub-ba-ta in-ba-eš or variants).
59
Cf. one of the 26 agreements S26 in Part C Sippar (tu-ba-ti-šu).
60
Cf. the discussion by Kitz (2000) regarding her review of undivided inheritance and lot casting in the
Book of Joshua of the Bible wherein she makes a comparison between an old Babylonian Nippur case study and
the significance it has for the interpretation of the Book of Joshua.
61
Cf. N1-N9. This element is found in 9 of the 10 agreements. Note Part C Nippur. Cf. Larsa texts: L3, L4,
L6, L7, L8, L9 of Part C Larsa. Cf. one text from Sippar S22 in Part C Sippar.
60
The researcher proposes the following practical realities the contractual parties may
encountered during the negotiation process to divide the communally-shared property. It was
a well-known practice among farmers throughout the world to gain a good knowledge of the
potential value of land on which they wanted to farm. After all, a capital investment had to be
made before any benefits of their labour could be expected.62 In ancient Mesopotamia, the
farmers had to manage on areas, which were mostly small with limited inputs of resources,
and could produce only enough food to meet the needs of their families. Mesopotamians
depended on the Tigris and Euphrates rivers for farming.63 The silt left over from the
flooding of these rivers made the soil fertile. Irrigation produced an extra supply of food.
Therefore, a “good” farmer would have known the soil type and the type of farming and
organisation required. The only profitable way to farm on fields and gardens was sound
economical farming and usage. Furthermore, good co-operation and a mindfulness of all the
beneficiaries’ needs as contractual parties were essential when plotting out units of assets, to
ensure that each party received an equal economic and monetary benefit, when becoming a
sole owner through the casting of lots. Doing so had the advantage that in decision making
each participant purposefully, but with good intent, agrees on the proper appropriation of each
section, as any party could end up with any divided portion. Thus, the whole process of the
division of communally-shared inheritance entailed more than casting a few lots.
In instances of fields, gardens and houses, the co-operation became complex. The fields and
gardens in these agreements were first plotted out into different sections. Even if the property
looked distributable, this was not necessarily the case; for fields and gardens in different areas
had different agricultural, monetary, usage and other values. Due to ground formations and
geographical structures some areas in a field or garden were better suited to a certain kind of
cultivation, whereas some areas were “poorer” or of lesser value than others.
Chernoff 199 investigates ell Ifšar’s farming community in the first millennium regarding society’s
influences on farmers' planting strategies. his author opines, “orchard crops and field crops require different
capital investments and different patterns of management” Chernoff 199
18-219). See also Bogaard (2005)
discussion on “Garden agriculture and the nature of early farming in Europe and the ancient Near East”.
ruška 007 8-61) gives a summarised account of the type of labour and capital investments made on arable
soil and the continous preparation of fields. nimals were utilised in a “soil-preparation technology” using a
variety of different implements, human- and animal labour ruška 007 60-61).
63
With regard to the importance of agriculture in old Babylonia to make a good living an old Babylonian
proverb states that “ he strong man lives from the price of his hire, but the weak lives from the price of his
children” Langdon 191
. Langdon (1912:223) avers that this points to the “frailty and helplessness of
man compared with the fertility and independence of nature”. The agricultural difficulties encountered in
producing and maintaining a harvest meant that only a “strong man” could manage to survive financially and
avoid the harsh reality of “sell[ing] their children to obtain food to eat”. his entails that the “strong man” must
produce food from the fields and gardens, but cannot consume what he produces. He must sell it and live from
his earnings (Langdon 1912:223).
62
61
As regards movable property such as slaves and wooden objects, the division would have
been simpler. An easier assessment of the values could be made, and in circumstances where
the values were more or less the same and there were a number of assets, it was easier to give
each beneficiary an asset.
3.4 EXAMPLES OF PRACTICAL IMPLICATIONS OF CITY LIFE AND LANDSCAPE
ELEMENTS
3.4.1
Introduction
Examples are synoptically outlined regarding six division agreements from Nippur, Sippar
and Larsa.
From Nippur, two agreements are described. One division agreement is discussed by Stone &
Stone (1981) and Stone (1987). This division agreement is examined together with later sales
agreements reflecting a change of ownership and some residential patterns of Nippur. The
other agreement from Nippur is text N1, from Part C, under the heading Nippur.
Regarding Larsa text L2 from Part C, under the heading Larsa is examined.
The Sippar texts S11, S12 and S13 under Part C, under the heading Sippar is also discussed.
These are practical examples illustrating some of the dynamics of the practical application of
Old Babylonian landscape and residential structures in the implementation of a family
deceased division agreement.
3.4.2 Division agreement between the brothers Enlil-mansum (eldest brother), abbala u, Ur-ukuga and Enlil-glazu
In their discussions, Stone & Stone (1981) and Stone (1987) express the opinion that
architectural modifications can be observed by studying this “inheritance text/agreement” and
several sales agreements. After the subdivision of the assets stemming from the inheritance
division agreement, over time each brother sold his property, after which certain houses
(and/or sections thereof) were again subdivided, sold, and resold.64
64
The term for house property was é-dù-a. Sometimes it is translated as a “house”, but there is more to this
62
According to Stone & Stone (1981:24) with the named “inheritance text, N- 94” it seems
there was a family deceased division agreement. Unfortunately, the text was not made
available. Stone & Stone (1981:24) describe the division as follows:
Inheritance: Ilu-naši divides 88 gin house between his sons, with Enlilmansum receiving 31 gin, and ab-bala u, Ur-dukuga and Enlil-glazu
receiving 19 gin each (Si 9/4/20, 1742 BCE, Published Findspot: TA
178K).
Stone (1987:65-67) also discusses House I and its architectural observations, and in the study
concludes that this division agreement was recorded in 1742 BCE after the death of the father.
Stone & Stone (1981) provides a unique investigation of the property by studying the
residence patterns of certain houses and their transactions.
House I, which is of importance for this discussion, was the house of the deceased father who
had four sons. When looking at the time-frame, the sons and their father lived together as an
extended family at the time of the father's death. Therefore, at their father's death and the
division of the house, they acquired ownership, as seen through evidence of sales agreements,
and had the opportunity to sell their property as a unit on its own. Stone & Stone (1981:26)
believe they still shared and maintained ownership of their shares.65
The researcher partially agrees with Stone & Stone (1981:26) that this was the property of an
extended family and the father was the head of the household. Everything changed after the
father’s death.
division agreement was concluded between all four of the brothers wherein
the common property inherited from their deceased father’s estate was divided into separate
agreed portions. In this instance, the rooms were divided among the brothers. Then after the
term. Stone & Stone (1981:26) argued that this term's translation is at best a “roofed floor space” for the
following reasons. Wooden items such as doors, ladders and locks add to the value of property. They argued
further that today in southern Iraq the wooden roof beams constitute a “significant and valuable part of the
house”. The é-dù-a were only small areas. Therefore the é-dù-a were only floor areas with a roof; areas such as
courtyards and walls were not considered as part of the é-dù-a (Stone & Stone 1981:26).
65
his type of “ownership” which Stone & Stone 1981 propose is the same as in the early Roman and
early Classical Period, and to a certain extent the old Germanic legal tradition. In early Roman law the right in
terms of which more than one person is an owner of something was known as the community ercto non cito, that
is, co-ownership between heirs (beneficiaries) and in the case of brotherhood (consortium). The consortium was
“an imitation of the community of co-heirs and the forerunner of a partnership” Kaser 1984 1 . Sharing
common features with this concept was the Germanic “joint hands”, the Gesamthand. Common owners do not
possess an undivided share in the common property although they can dispose of their portion of the property,
mathematically calculated. It seems that the owners have a “mutual trust”, and each common owner could
dispose of his mathematical share, but the whole of the corpus of the property could only be disposed of by all of
them, in agreement (Kaser 1984:123).
63
conclusion of the division agreement the first and third sons, according to Stone & Stone
(1981:24-25) “have little use for this property” and alienated their property to the other two
brothers. Only two brothers were left with their separately owned properties and one of these
brothers sold his property to an outsider, leaving only one brother (of the four original
owners still with a property share in his late father’s house Stone & Stone 1981:24-25; Stone
1987:65). Thus the three brothers, including the eldest brother who received the greater share
went into separate sales agreements, regarding their newly acquired awarded portions as per
the agreed division agreement.66
Therefore, according to the text 3N-T94 the house is divided between the sons Enlil-mansum,
ab-bala u, Ur-dukuga and Enlil-glazu. Ilu-naši was the father and testator; on his death, the
sons divided the estate. The eldest son Enlil-mansum received a greater portion. Stone &
Stone (1981:21) refer to the preference portion and mention that it is usually 10%. In
accordance with the diagram copied from Stone & Stone (1981:21), some information is
added to explain the architectural structure, and social and inheritance agreements, as follows:
The total measurement of the paternal house, which is divided among the brothers, is eightyeight (88) gin (Stone & Stone 1981:21). See the table (infra) reflecting the portion allocated
to the eldest son Enlil-mansum of a total of 35.17% which is larger than the different
percentages of apportionments to the other brothers. The one son Ur-dukuga receives only
16.86%. Two brothers receive 24.62% and 23.56% respectively. This division makes it
difficult to ascertain what percentage of the eldest brother’s portion was his allocated portion
of inheritance, or his preference share.
brother’s portion of
By rough calculations, it seems that the eldest
.17% shows an average of 1.61% as the agreed allocated residue
portion, and possibly an average of 13.55% as the preference portion. The one brother Urdukuga who only received 16.86% represents an interesting division in the sense of the
unequal portions’ percentages. Upon closer inspection of the house structure, it seems the best
the contractual parties could manage to do, with the division of the house, into separate
portions of sole ownership.
Cf. table 4 Stone & Stone 1981 4 , named the “catalogue of texts relating to house I” outlining six
transactions read together with table 14 “house I transactions” in Stone 1987 66 .
66
64
Table 1 Allocation of portions
Brothers (sons of Ilu-naši)
Enlil-mansum
157
173
ab-bala u
178
185
Enlil-glazu
152a
Ur-dukuga
179a
179b
155
m2
Agreement
m2
18.36
% portion
12.75
24.42
8.8
16.86
12.3
23.56
35.17
8.1
10.26
7.29
5.46
8.8
2.7
3.75
5.85
52.21
100.00
Figure 2 Presentation of House I (Stone & Stone 1981:21) with researcher’s inclusions of different portions
awarded to the contractual parties
65
Figure 3 Photograph from west of House I (Stone & Stone 1981:21 Plate II)
67
Stone & Stone (1981:24) state that at first, ten percent of the entire estate is divided as a
“preference portion” to the eldest son, and then the remainder of the estate is “divided
exactly” between the beneficiaries.
hey opine that each beneficiary would receive a “room
or rooms since houses do not lend themselves to exact division”. They suggest that the
preference portion was first awarded, then the eldest’s “regular share”, after which the others
received their share. For the “purpose of apportionment”, they consider the houses as “linear
or circular strings of rooms” which were divided “in order of descending age” Stone & Stone
1981:24). According to them, there was some “assignment of rooms” where the eldest son
receives his portion first, and then the others receive theirs. However, there are no references
to the descending birth order of sons in the texts themselves and Stone & Stone (1981) made
their observations in terms of the outline of the rooms. Also, in other Nippur texts, discussed
later in this study in Part B and C, there is a preference share (natural element 8) in Nippur
that sometimes specifically mentions an eldest son.
In other texts as explained in discussions later in this chapter, there seems to have been a
degree of rebuilding of the common property in some instances, to necessitate a division;
67
Note this photograph from the west, as well as the arrows which show the locations of the stubs of the
wall, separating 152a from 152b (Stone & Stone 1981:21 Plate II).
66
extra compensation was noted expressly as compensation for the rebuilding.
In a particular house, in this case study there was a bakery – an oven, which caused that part
of the house to be of greater monetary and usage value – and that part of the house was
allocated to the eldest as part of his preference share. In text N1 (infra) Part C Nippur, there
was also a bakery which the eldest son received.
3.4.3 Division agreement between the brothers Sîn-imguranni, Tarîbum and Anu-pîIlabrat (N1)
d
3.4.3.1 Background information
This is a recorded division agreement captured on clay - between three brothers: Sînimguranni (the eldest), Tarîbum and Anu-pî-Ilabrat wherein they divided by mutual
agreement (as may be observed in line 12 of text, N1) their communally-shared inheritance,
inherited from their deceased father’s, Sîn-Iriš’s, estate. Sîn-imguranni is the eldest brother,
as shown in lines 4 and 14 of the N1 text. The division of all the awarded assets to the
contractual parties is reflected on this tablet.
Detailed descriptions and measurements of assets referring to the neighbouring properties of
the parties are reflected in the text. There are witnesses present of whom the scribe is one.
The contractual parties agreed that they will not in future lay claim to each other’s assets. No
penalty is mentioned. However, if there is a claim the claimant must be heard by the king.
Seals were made for this agreement, their impressions appeared before the ala lines. For this
occasion, the seal is engraved with the names of all three brothers. The oath is “heard” by the
king, but his name is not mentioned.68
In this division agreement the elements in-na-an-búr clause, rule of preference portion of the
eldest brother (gišbanšur zag-gú-lá síb-ta mu-nam-šeš-gal-šè) and casting of lots (gisšub-bata in-ba-eš) are included. The in-na-an-búr clause is used to balance the value of each
deceased estate asset awarded to a beneficiary as a quid pro quo in relation to other
beneficiaries’ awarded assets, in an ingenious conjunction with the rule of the preference
portion of the eldest brother (gišbanšur zag-gú-lá síb-ta mu-nam-šeš-gal-šè) and the casting
68
Cf. Part C regarding three Sippar texts S20, S25 and S26 wherein an oath occurs in the temple.
67
of lots (gisšub-ba-ta in-ba-eš). Owing to the presence of this clause, the division of the
separate assets is more or less equal. In most cases, this
gis
šub-ba-ta in-ba-eš clause was
present together with the šeš-a-ne-ne-ra in-na-an-búr clause.
3.4.3.2 Outline of paternal assets distributed between beneficiaries
The outline of the division of the communally-shared
inheritance assets between the
beneficiaries must be read in conjunction with the text and graphic outlines of the fields and
house (infra).
Upon a division agreement, it seems that the contractual parties firstly divided complex estate
assets consisting of fields, gardens, a house, slaves, wooden objects and some money brought
in for a dowry, in order to estimate the apportionment of a certain percentage as the
preference portion to the eldest.
After the said apportionment, the contractual parties
consensually agreed to plot out the fields, gardens and house into separate sections so as to
facilitate, by means of a casting of lots, an equal division of shares in the sole ownership. It is
evident from the outline that the brothers ingeniously divided the property of co-ownership
into pieces, which could be economically viable, and to achieve these, different solutions of
donation, exchange and sale were used.
Lengthy discussions would have taken place to facilitate an agreement for the meticulous
estimation of the portions of sole ownership and thereafter to divide the communally held
estate assets by the casting of lots. This outline reflects some of the dynamics of recorded
division agreements in Old Babylonian Nippur.
68
Table 2
utline of awarded portions of brothers Sîn-imguranni (eldest), ar bu
Solution
Preference
portion
Donation
Exchange
Exchange
Donation
Sîn-imguranni
(eldest brother)
17 1/4 gin improved real
estate
1 ubu and 20 sar fields of
Gula region
10 sar fields of Gula region
1 tray of honour
2
/3 sar and 1/2 gin improved
real estate
1 iku and 10 sar of fields
Gula region
1 iku of fields of Gula
region
10 1/3 gin improved real
estate, a “bakery”
30 sar fields Gula region
Tarîbum
(brother)
Anu-pî- Ilabrat
(brother)
5
5
/6 sar and 1/6 gin
improved real estate
1 iku and 10 sar fields
of Gula region
1 iku and 10 sar of
fields of Gula region
30 sar fields Gula
region
1 door spruce wood of 1 door spruce wood of
Exchange
entrance of papahhum
palace
Bringing in 1 dibba door,- whose value
of
money is 5/6 of a silver shekel
/Sale
1 tray
1 tray
Exchange
1
1
/3 household possessions
/3
household
Exchange
possessions
Bringing in
of
money
/Sale
Exchange
and nu-p - Ilabrat
/6 sar and 5/6 gin
improved real estate
1 iku and 10 sar
fields of Gula region
1 iku and 10 sar of
fields of Gula region
30 sar fields Gula
region
1 door spruce wood
of entrance of house
1 tray
1
/3
household
possessions
“6 silver shekels, by
reason of the surplus
of the house and the
work put in on the
house, Taribum has
paid in balance to
Anu-pi-dIlabrat. By
reason of Anu-pid
Ilabrat's having no
wife, the debt of his
father's house he does
not share” see Part
C, text N1).
69
Figure 4 Sche atic outline of field di ision of brothers: Sîn-imguranni (eldest), ar bu
and nu-p -dIlabrat
Figure 5 Sche atic outline of house di ision of brothers: Sîn-imguranni (eldest), Tarîbum and Anu-pîd
Ilabrat
70
3.4.4 Division agreement between the brothers Bêlessunu and Hiššâtu
(L2)
3.4.4.1 Background information
This is a division agreement of an unknown paternal estate between two brothers Bêlessunu
and
išš tum regarding the awarded divided assets of both brothers recorded in the Rīm-Sîn-
period. It seems that the whole estate is divided, including an already built house, some wood
and an orchard.
No slaves are mentioned.
Both brothers’ divided awarded assets are
reflected. Reference is made to “as much as there was”-clause, as follows “movable ground,
orchard, furniture, goods and liquidities as much as there was, who belonged to their father,
they divided”.
išš tum
(son/brother)
Orchard
Awiyatum
of
Bêlessunu
son/brother
30 sar orchard palm trees with
13 1/3 sar open area (beside of
orchard Awiyatum)
30 sar orchard palm trees with 13
1
/3 sar open area (beside of orchard
išš tum)
(30 x 36m2; 13 x 36m2 + 12m2 =
1560 m2)
(30 x 36m2; 13 x 36m2 + 12m2 =
1560 m2)
Figure 6 Sche atic outline of di ision of fields of brothers Bêlessunu and Hiššâtu
House of
Apil-Sin
5/6 sar 20 še of built house 1/2
sar (with) a door in veins of
palm (and) a door out of wood
of a palm tree, (5/6 x 36m2 =
30m2 & 20 še + 18 = 48 ) (next
house of Apil-Sin)
5/6 sar 20 še of built house 1/2 sar
(with) a door in veins of palm
(and) a door out of wood of a
palm tree, (5/6 x 36m2 = 30m2 &
20 še + 18 = 48)
(next to house of išš tum
Figure 7 Sche atic outline of di ision of house of brothers Bêlessunu and Hiššâtu
71
3.4.4.2 Outline of paternal assets distributed between beneficiaries of the estate by means of
exchange
Through the means of exchange an exactly equal division of awarded assets was reached.
Table 3 Outline of awarded portions of brothers: Bêlessunu and Hiššâtu
Solution
Bêlessunu
Hiššâtu
5
5
/6 sar 20 še of built house
Exchange /6 sar 20 še of built house
1
1
Exchange /2 sar (with) a door in veins of palm /2 sar (with) a door out of palm tree
(and) a door out of palm tree wood
wood
Exchange 30 sar of orchard of palm trees
(with) 13 1/3 sar of open area
30 sar of orchard of palm trees
(with) 13 1/3 sar of open area
In this agreement, the beneficiaries use the division agreement as a method and unique
arrangement, to re-allocate and trade their rights in the communally-shared
inherited
property.
3.4.5 Three recorded division agreements regarding one oral agreement (S11, S12 and
S13)
3.4.5.1 Background information
The three texts from Sippar, that are S11, S12 and S13 included:
S11, only the agreed portion of Sin-iḳ šam in the division agreement of the paternal estate
between Sin-iḳ šam, Ibni-ṣamaš and Irra-n ir;
S12, only the recorded agreed portion of Ibni-ṣamaš in the division agreement of the
paternal estate between Sin-iḳ šam, Ibni-ṣamaš and Irra-n ir; and
S13, only the recorded agreed portion of Irra-n ir in the division agreement of the
paternal estate between Sin-iḳ šam, Ibni-ṣamaš and Irra-n ir.
These agreements were recorded in the 12th reign of King Sin-mubalit. All the texts were
concise recordings, and each brother kept his copy of the agreement as proof of his agreed
divided portion of sole ownership.
72
Father: unknown
brother (S11):
brother (S12):
brother (S13):
Sin-iḳ šam
Ibni-ṣamaš
Irra-nâ ir
Figure 8 Schematic outline of texts S11, S12 & S13 family members
Brother (Si 1):
Sin-iḳ šam
1 sar farmed house
property, and of
plot without house
Field of
Pu ur-Sīn
Brother (Si 2):
Ibni-ṣamaš
1 sar farmed house
property, and of
plot without house
House of
Ištar-ummaša
Brother (Si 3):
Irra-nâ ir
1 sar farmed house
property, and of
plot without house
House of
Ubar-rija
Figure 9 Schematic outline house division of brothers in texts S11, S12, S13
3.4.5.2 Outline of paternal estate assets distributed
The beneficiaries as contractual parties consensually agreed to divide the different assets of
their deceased family member’s estate. The three brothers received the same assets in more or
less equal portions by means of exchange or barter.
Table 4
Sin-iḳ ša
utline of awarded portions of brothers: Sin-iḳ ša , Ibni-Ša aš and Irra-nâṣir
(Si 1)
1 sar farmed house property,
and of plot without house
Ibni-Ša aš (Si 2)
Irra-nâṣir (Si 3)
1 sar farmed house property
1 sar of plot with house and
of plot without house
3.5 CONCLUSIONS
The maintenance of the house and household and its subsequent preservation with regard to
its inheritance shares were important, especially the sustainability and profit of each core
73
household. The latter were not easily achieved, as the environment of ancient Mesopotamia
was predominantly hostile and the inhabitants relied mainly on artificial water channels, as
well as the fortune of favourable environmental factors, to assist in sustaining life and
agricultural needs.
The building and re-building of residential structures, although elementary, was not that easy,
as no suitable building materials were readily available, except for the mud deposits that could
be obtained from the Euphrates and Tigris rivers to produce mud bricks baked by the sun.
For purposes of sustaining life after acquiring the property, the existing agricultural and
architectural problems, needs and elements could make a division complex. In a case where
the beneficiaries of communally-shared assets could not share ownership, they had to receive
awarded portions and/or assets to sustain each individual and his/her core family unit in such
a way that the family unit could still make a profit and/or at least sustain itself.
In such circumstances, the contractual parties would devise a dividing-up of the communallyshared property into different portions of sole-ownership. The contractual parties used a sale
(“bringing in”), donation and/or exchange as solutions, which the parties used to alter coownership of the communally-shared inheritance to sole ownership: in each agreement, one or
all of these solutions could be applied regarding all or some of the communally-held inherited
assets.
During negotiations prior to the final agreed conclusion of the contract and implementation of
solutions, certain factors needed to be taken into account, and the success of the final division
was subject to certain knowledge and abilities of the contractual parties.
Firstly, a good knowledge of the potential value of land was needed, for a capital investment
had to be made before any benefits of their labour could be expected. The majority of Old
Babylonian farmers managed their farms on small areas with limited inputs of resources. A
successful farmer would know the soil type and the type of farming and organisation required
for sound economical farming and usage.
Furthermore, the family deceased division agreement was a mutual one, so that good
co-operation and mindfulness of all the beneficiaries was essential.
An ingenious
74
construction of a division of complex estate assets consisting of field/s, garden/s, house/s,
slave/s and wooden objects was essential to establish a mutual agreement that was agreeable
and profitable for all parties concerned.
In practice, probably the fields and gardens in these agreements were first plotted out into
different sections. Due to ground formations and geographical structures, some areas in a
field or garden were better suited to a certain kind of cultivation, whereas some areas were
“poorer” or of lesser value than others.
Reflecting on the practical realities encountered by contractual parties in such an agreement,
some examples are synoptically outlined regarding chosen Old Babylonian division
agreements from Nippur (2 clay tablets), Larsa (1 clay tablet) and Sippar (3 clay tablets
regarding one agreement).
From a Nippur division agreement text and the investigation of
ouse I’s residential patterns
and some transactions, Stone & Stone (1981) and Stone (1987) discussed the property of an
extended family from Nippur. The family members concluded a division agreement together
with later sales agreements reflecting a change in ownership, and also some residential
patterns.
fter the father’s death, a division agreement was concluded between all four of the
brothers, wherein the common property inherited from their deceased father’s estate was
divided into separate agreed portions. In this instance, rooms of the house of the father were
divided among the brothers. Three brothers, including the eldest brother who received the
greater share, went into separate sales agreements, regarding their newly-acquired, awarded
portions as per the agreed division agreement.
With the conclusion of the division agreement there seems to have been a degree of rebuilding
of the common property, in some instances, to necessitate a division; extra compensation was
noted expressly as compensation for the rebuilding. In a particular house in this case study,
there was a bakery – an oven, which caused that part of the house to be of greater monetary
and usage value. The eldest son received the bakery. This was also the case, regarding a
bakery, in another Nippur text, N1 (infra) Part C Nippur.
Text N1 from Nippur (see also Part C) is a division agreement captured on clay between three
brothers: Sîn-imguranni (the eldest), Tarîbum and Anu-pî-Labret, wherein they divided by
75
mutual agreement, their communally-shared inheritance, inherited from their deceased
father’s, Sîn-Irish’s, estate.
utlines were drawn in this chapter to assist the reader with some
insight into the apportionment of the fields and house of Text N1. The brothers divided the
property of co-ownership into pieces, which could be economically viable, and to achieve
these different solutions of donation, exchange and “bringing in” were used.
Upon this division agreement, it seems that the contractual parties firstly divided complex
estate assets consisting of fields, gardens, a house, slaves, wooden objects and some money
brought in for a dowry, in order to estimate the apportionment of a certain percentage as the
preference portion to the eldest.
After the said apportionment, the contractual parties
consensually agreed to plot out the fields, gardens and house into separate sections to
facilitate, by means of a casting of lots, a division of shares in the sole ownership.
From the Old Babylonian city-state of Larsa, another division agreement, L2 (see Part C), is
discussed. This is a division agreement from an unknown paternal estate, agreed upon
between two brothers, Bêlessunu and išš tum, regarding the awarded, divided assets of both
brothers. It seems that the whole estate is divided, including an already-built house, some
wood objects and an orchard. No slaves were included in the text. Both brothers’ divided,
awarded assets are reflected by means of exchange: an exactly equal division of awarded
assets was reached.
Lastly, the three texts, S11, S12 and S13 from Sippar (see Part C), form part of one oral
division agreement of the paternal estate between Sin-iḳ šam, Ibni-ṣamaš and Irra-nâ ir. The
scribe recorded the oral agreement in three separate clay tablets, reflecting each of the three
brothers’ individual agreed divided portions. S11 is the agreed portion of Sin-iḳ šam; S12,
the recorded agreed portion of Ibni-ṣamaš; and S1 , the recorded agreed portion of Irra-nâ ir.
The division of the paternal estate inheritance took place by means of dividing the property
into portions of sole ownership. Three brothers received the same assets in equal portions,
and to enjoy the benefits of sole ownership.
These six division agreements show that the contractual parties managed to divide complex
estate assets consisting of fields, gardens, houses, slaves and wooden objects by using
mechanisms such as exchange, money brought in from sales and donations. The mechanisms
76
are supported by different legal practices, such as a preference portion and casting of lots.
Each family situation, as well as architectural and agricultural landscape factors play
important roles in the conclusion of a division agreement.
Consequently, the contractual parties managed to devise some form of co-operation within a
family discussion and to facilitate practical reasoning to change co-ownership to sole
ownership, regarding some or all of the communally-held inherited assets, using certain legal
practices in each unique situation.
77
78
PART A
ASPECTS OF OLD BABYLONIAN LIFE
CHAPTER FOUR
OLD BABYLONIAN SCRIBAL SCHOOL TRADITIONS
“Th˹ mann˹r in which I am using it now, in writing these words, the
manner in which the author of a book, or a papyrus or a hewn
inscription has to use it, is a very far-fetched and derivative function of
language. In this, language becomes a condensed piece of reflection, a
record of fact or thought. In its primitive uses, language functions as a
link in concerted human activity, as a piece of human behaviour. It is a
mod˹ o˺ action and not an instrum˹nt o˺ r˹˺l˹ction”
(Malul 2002:35 quoted Malinowski).
Our understanding of today’s written medium is not the same as the written
recordings of Old Babylonia, for that and the ancient Near East in general
was a predominantly pre-literate society.
Old Babylonian division
agreements took place orally through negotiations and final consensus,
while sometimes scribes on tablets recorded certain details of the oral
agreements.
his took place by the operation of “performance” legal
traditions through multi-sensory communication and symbolism. The
studying of Old Babylonian (and ancient Near Eastern) written records in
terms of different approaches and perspectives in textual and archaeological
sources may assist in a better understanding of the operation of Old
Babylonian agreements, captured by scribes in a written form.
4.1 INTRODUCTION
The primary source of an Old Babylonian family deceased division agreement is a written
summarised recording of its details on a clay tablet. Therefore, our conception of this
79
agreement is confined to a three-dimensional artefact69 whose details were captured by a
scribe at his/her own discretion, at a specific time and place. However, it is still a complex
agreement wherein possibly lengthy negotiations took place, with a final consensus reached
between the family contractual parties.
In this chapter, a reflection is undertaken on the relevance and meaning of predominantly
pre-literate ancient Mesopotamian society’s communication mediums regarding our possible
misunderstanding of the written mediums of Old Babylonia.
In addition, the practical and theoretical mechanisms of a family division agreement relating
to scribal schools are outlined, wherein the recorded agreement’s limitation to selected
information is explained.
Consideration is given to Old Babylonian scribal schools and its scribes to understand the
unique nature of the recording of the details of a family deceased division agreement. In so
doing, the scribe made it possible for us to gain some insight into and knowledge of this
agreement; however, it is only through the scribe’s perception of what is important regarding
certain facts, as well as details supplied at his/ her discretion and governed by his/ her scribal
school tradition and training.
Subsequently, the development and practical function of scribal schools are discussed, which
includes an introduction to the lexical and grammatical texts called ana ittišu and different
kinds of scribes.
Furthermore, an outline is provided of the different approaches in the study of scribal school
tablets, according to Robson’s
001 categorisation: namely, the traditional approach of
scribal training, the recent focus by scholars on the physical tablets and typology as well as its
archaeological evidence.70
69
See discussion by Hameeuw & Willems (2011) regarding the introduction of new visualisation techniques
focusing on systems and methods facilitating the reading of texts and seals impressed on clay tablets.
70
In this chapter, references in footnotes allude to today’s application of contract law principles and today’s
scribes (scribae or notaries’ functions in the drafting of contracts. he rationale is to give an insight into our
understanding of the legal principles of a contract and to emphasise our possible different mind-sets regarding
ideas and concepts of the application of such principles and the role of a drafter of a contract in contrast with the
named Mesopotamian contract legal traditions and the role of the scribes.
80
Thereafter, some notes on the scribal schools of Nippur and Sippar are presented.
4.2 RELEVANCE AND MEANING OF RECORDINGS ON OBJECTS IN ANCIENT
MESOPOTAMIA
The existence of scribal schools in ancient Mesopotamia captures the imagination and interest
of present-day scholars who study it from different angles as organised centres of learning.
Present-day scholars consider certain aspects to be similar to our education system and share
the opinion that ancient scribal schools directly influenced the literate world of ancient
Mesopotamia, which today is generally thought to be a predominantly pre-literate society
(Pearce 1995:2265-2278).71 However, the multi-sensory and symbolic communication in
ancient Mesopotamia necessitated our reorientation of present-day meaning and
understanding of the written word, in prevention of superimposing present-day frame of mind
in the study of Old Mesopotamian written records.72
In a dominantly literary society of today, Hibbits (1992:874) advocates that present-day
writing “preserves the details of our thoughts and experiences against the shortcomings of our
memories”. Writing as a communication medium today is “portable” and has almost no
geographical boundaries due to the fact that we communicate over distances to others we
cannot see or even speak to. Writing is “duplicable and durable” and serves to make “contact
with many people over different lifespans”.
It has reproductive qualities, for as a
communication medium in its original form it has a good chance of survival depending on the
material on which the data is captured.73 Writing has also “conditioned our vocabulary”
(Hibbits 1992:874).
Although Mesopotamia was predominantly, a pre-literate society there is evidence of a good “recordkeeping system” to support the temple business and other commercial business activities which became more
complex as the population grew. Thousands of the named commercial records were excavated which include
receipts, disbursements, inventories, loans, division agreements, leases, partnership agreements, partnership
dissolutions and guarantees (Keister 1963:371-372). Keister (1963) examined these named commercial records
found in temples and private businesses. He made special reference to debt records, rentals or leases and
expenditure accounts, and showed that even in their variety they have more or less the same order of information
captured on the clay tablet (Keister 1963:372-376).
72
Powell (1981:419-440) re-evaluated the origins of cuneiform (well-known established date: 3000 BCE),
the direction of script, the manner of use of stylus and tablet; and the role of cuneiform in literacy in the
introduction of the alphabet. Powell 1981 4 6 concluded that “ he inescapable conclusion is that the
introduction of the alphabet, by itself, has had little effect upon reduction of functional illiteracy, and thus, its
importance in the history of human development has been overestimated, whereas that of cuneiform has
probably been underestimated”.
73
The material of the written media varied. In most cases (and only possibly because it survived the
ravages of time) the written records were incised on clay tablets. Other materials included leather, papyrus,
stone, metal, ivory, wood wax boards, etc. (Pearce 1995:2269-2270).
71
81
The qualities of present-day written media are applicable to a certain extent to the written
recordings in ancient Mesopotamia. The ancient scribes painstakingly copied and recopied
information on clay tablets. Different styles and terminology from Old Babylonian city-state
to city-state were used, in accordance with scribal school traditions and legal practices.74
However, the largely pre-literate ancient Mesopotamian society differs to a certain extent
from our predominantly literate society, where writing “shapes our lives”
ibbits 199 874 .
Ancient Mesopotamia as a mainly illiterate society relied on multi-sensory75 and symbolic
communication76 sometimes embedded in the written word captured on a clay tablet.
Hibbits (1992) strongly advises that we must reorient ourselves in the study of pre-literate and
marginally literate societies, such as the ancient Near East, and set aside our own ideas of
legal expression.
We must “divorce” ourselves away from the said multi-sensory
communication and symbolic acts, to consider it as “additional” to the written documents
available for interpretation. In the practice of symbolic acts, recitations of ritualised formulas
in ancient Mesopotamia were common, such as the cutting of the hem of a woman's garment
in a divorce (Greengus 1995:475). Greengus (1995:475) and other scholars believed that
these ritualised formulas were derived from earlier times before the invention of writing. 77
Symbolic acts surpassed their original function and “show their deeper function as dramatic
and decisive legal acts that were required to be carried out in the presence of witnesses and
the community” (Greengus 1995:475).
These qualities demonstrate that the legal traditions of ancient Mesopotamia were performed,
so that in all of our interpretations of scribal school traditions or our reflection on problems of
interpretation, the performance78 of law must never be forgotten (Hibbits 1992:874).
Although sensory input and multi-sensory communication form an intrinsic part of the
74
Cf. discussions in Chapter 6 (Terms) and Chapters 7 & 8 (Comparisons) regarding the conclusions
reached about the scribal school traditions under the headings of natural- and incidental elements.
75
Communicator medium involving all of the senses to convey a message. Hibbits (1992) coined the term.
76
Symbolic communication means an act or gesture which must be performable and performed; it is
executed intentionally and solemnly, in an appropriate context, for a limited span of time, and it must symbolised
a legal result which differs from its manifest physical result (Malul 1988:20).
77
Discussions of the qualities of multi-sensory communication by Hibbits (1992); Malul (1987a; 1987b;
1988; 1991; 1991-1992; 2002); Kruger (1998); Gruber (1980) and Barakat (1969) regarding symbolism reveal
different perspectives in the analysis of the performance legal tradition of the ancient Near East and the
applicable old Babylonian legal traditions.
78
Performative legal actions and other forms of acts which are performed as a play in front of society, using
all the senses to transfer and remember the messages and acts. Cf. Hibbits (1992).
82
performance legal traditions, it is unfortunately not always possible to detect these important,
quintessential elements for there are seldom direct references to them, and only bits and
pieces are mentioned in the written records.79 The distorted mirror80 effect provided by
recorded legal transactions is all that is available to gain some insight into and understanding
of the relevance of written legal recordings in Old Babylonian life. Unfortunately, our
understanding is sometimes likely to be bias and partial, because of the scarcity and sporadic
discovery of cuneiform sources and the different aspects of Old Babylonian life and legal
traditions, which needed to be re-examined by present-day scholars. It is only through
constant studying, debating, discovering and translation of more cuneiform records in years to
come that we can, hopefully, reach a better understanding and a more accurate reflection of
the relevance of written recordings of Old Babylonian life and its legal traditions.
4.3 PRACTICAL AND THEORETICAL MECHANISMS OF FAMILY DECEASED
DIVISION AGREEMENT RELATING TO SCRIBAL SCHOOL TRADITIONS
When a family member is deceased and bequeaths an estate to his or her family members,
these family members become the co-beneficiaries of some or all of the deceased estate
assets.
For a certain period of time: days, months or even years after receiving the
inheritance, these co-beneficiaries share as co-owners in the enjoyment of the communally
held asset/s.
When they decide not to share co-ownership as co-owners, they become
contractual parties in their negotiations to divide the communally held inherited assets into
portions of sole-ownership. In these circumstances when family members finally decide to
conclude orally a division agreement, certain terms and details of the agreement are
sometimes captured on a clay tablet.81 For this, the services of a scribe82 are obtained, or one
79
Apart from symbolism in legal studies, scholars could also focus more on iconography to explain certain
aspects of old Babylonian life. Cf. Nijhowne (2003) who looks at the iconography of images and wording of
certain groups in Old Babylonian and Kassite glyptic and theorises accordingly regarding the variations in terms
of political and religious events.
80
Cf. Oppenheim (1964:283ff) who refers to legal documents as a mirror.
81
Usually one record of the written ancient Near Eastern (Mesopotamian) transaction was kept and left in
the keeping of the party who won the lawsuit or the one to whom the money was paid out (Greengus 1995:475).
This document was placed in a clay envelope: on its surface, a summarised version was written (Greengus
1995:475).
82
Scribes, scribae, transcribers and notaries through time have more or less had the same functions. Cf.
Pearce (1995:2273) who considers Mesopotamian scribes as notaries, as well as witnesses. Ready (2002:1-19)
gave an insightful synoptic historical outline of scribes or notaries, who from the Roman Period were public
officials, and scribae who acted as copiers and transcribers. Later their technical knowledge and skill played an
important part in public and private matters. These scribes were engaged in various drafting of documents
(Ready 2002:1). Today these scribes are officers of law depending on the rules of the state to draft certain
documents including wills, testamentary documents, conveyance of real and personal property and powers of
attorney. heir duties also include the “authenticating” of a drafted document under their signature and official
83
of the contractual parties83 draws up the orally-concluded agreement on a tablet.84
It is an open question as to what the specific detailed background of a consensual agreement
entails, as in most cases only some of the information is recorded on a clay document. 85 We
can only gather from the essential elements present in a recorded agreement, qualifying an
agreement as a division agreement, the following:
the contractual parties were closely related,
the divided assets were part of a deceased family estate; and
there was a deceased family estate owner,
consensus was reached between the contractual parties to move from co-ownership to
sole-ownership, regarding some or all of the assets.
Sometimes more than this is reflected, which may include recordings of unique legal practices
present in a division agreement, categorised as natural elements. Still, Old Babylonian legal
documents were protocols and most of the time only recordings of “elementary” findings and
facts recorded either by the choice of the contractual parties and/or scribe. Possibly many or
sometimes all of the important legal practices and facts were not recorded.86
seal (Ready 2002:21). A notary is considered a reserved legal activity (Ready 2002:22). Cf. Elliot (1969:1) who
states that a notary in South African law is a public officer appointed by the Supreme Court and by statute
required to be an admitted attorney (lawyer). Today in South Africa according to statute, after passing his/her
examinations, a candidate notary apply to the Supreme Court for an appointment as an officer of the court
(notary). The candidate notary already have been permitted to practise as an attorney (Van der Merwe 2001:67). A notary has a duty to apply skill, care and diligence in the drafting of documents, the verification of the
identity and capacity of contractual parties, and the fulfilment of a client’s instructions Elliot 1969
. An
attorney who is also a notary who undertakes any drafting work, which is not notarial work, is still expected to
exercise the same degree of skill as a notary in a “high tradition of honesty and reliability” and may be held
liable for damages in breach of the tradition and skill required of a notary (Elliot 1969:1-2).
83
In the case of an individual who was not a scribe by profession the context of a written ancient Near
Eastern agreement was direct and informal. Reference was then made to such a person. Cf. Greengus (1995). It
seems that professional scribes (cf. Part C case studies’ texts outline wrote the majority of division agreements.
84
Epstein (2008) is a practical guide for drafters of contracts of today and he discusses drafting suggestions
and techniques (2008:224-244). Drafting a contract today is considered an “art that requires skill and foresight”
and the parties’ intention must be clearly stated to prevent disputes in the future Epstein 008
. he use of
proper and plain language as well as avoiding ambiguity is advisable (Epstein 2008:226-227). Epstein
(2008:228) suggests that drafters of today use a model from books and consult other contracts, when preparing a
contract, remembering that there is “no perfect contract” and that drafters “need to pick the best from a variety of
sources to suit needs”, together with using computer software, and bearing in mind the role of the Internet in
drafting and communication.
85
Written records served as a summary of findings and legal actions were written in the third person. Legal
documents served as “formal records of legally valid transactions which took place in an oral or non-literate
context”. s with some “important” declarations or statements in legal documents, these are sometimes quoted
in the first person (Greengus 1995:475).
86
Cf. Saggs (2000
who states that the written recordings are characteristic of “very condensed
84
Veenhof (2003:147) opines that there are several reasons why recordings are made of oral
transactions. One is the importance of transactions; others may include the important status of
contractual parties and/or the availability of “scribal expertise”.
he recordings were almost
similar to bookkeeping and as in bookkeeping only certain division agreement facts were
inscribed on the clay tablet, such as the location, size and type of properties, witnesses and
even actions of contractual parties.87
Oppenheim (1964:25) regarding recordings comments:
…their diction is terse, abbreviated, and full of mysterious technical terms.
It is a delicate and difficult task to establish the meanings of terms that, in
the course of time, often underwent subtle changes and to reconstruct their
institutional and economic background. Yet only by doing so can one hope
to infuse some life into the strictly formalistic style of ledgers, lists, and
receipts.
In addition, to consider recorded Old Babylonian and in general ancient Near Eastern
agreements, as similar to recorded contracts of today, would jeopardise qualitative analysis
and conclusions about the legal practices of Old Babylonia. The capturing of data on a clay
tablet is in contrast with the written contracts of today,88 where the drafter of a contract today
would at best capture all the terms89 of an agreement.90
phraseology and are full of technical words upon which the exact sense turns but which scholars at present
understand only approximately”. Cf. discussion by Vermaak (1991) wherein he advocates that the “ancient
texts” should be interpreted within their “own contexts, genres and purposes” Vermaak 1991:86). Cf. also
Charpin’s 010a; 010b) discussion of writing, law and kingship in old Babylonian Mesopotamia wherein he
gives new perspectives on the relationships of cuneiform writing in old Babylonian society.
87
Private ancient Near Eastern legal documents consist of “an objective description of the transaction”,
witnesses, date formula, seals of some of the witnesses and contractual parties (Westbrook 2003:362).
88
Today the specialisation in contracts are regulated by different fields of law, such as employment law,
consumer law, land law and commercial law; however most scholars agree there is at least a “general law of
contract” Stone 008 1 -18).
89
Although an oral agreement can be used in present-day contract law, it is not advisable - for the oral
agreement, terms must be proved. Oral contractual agreements take place on a daily basis; however the more
complex a contract and its terms are, the more likely the parties will include all the terms in a written contract
(Stone 2008:249). Furthermore, in present-day law oral agreements are permitted although there are a few
statutory provisions which require a written agreement, for instance in South African law a family deceased
division (redistribution) agreement involving immovable property, and also contracts involving alienation of
property, etc. In a dispute today regarding the terms of a contract the courts look further than a “meeting of the
minds” to clarify the details of an agreement (Stone 2008:33). Present-day courts have an “objective approach”
and make assessments based on reasonable person perspectives as to what was said and done regarding the
terms of the agreement (Stone 2008:33-34). It can be assumed from the legal cases of the ancient Near East that
a similar approach was followed due to the decisions made by the judges in accordance with the few details
provided in their written court records.
90
Regarding the construction of the contract in present-day contract law, appropriate language use is
essential to establish the meaning of clauses (Stone 2008:260). Here the named parole evidence rule can be used
where contractual parties can argue that a certain part of the written agreement is pro non scripto or the
interpretation is such as to consider it inconsistent with its normal meaning. Therefore, drafters (lawyers) are
85
Furthermore, if an Old Babylonian agreement reflecting legal practices (natural elements) is
found, it is fortuitous as some quality analysis can then be made, but scholars are always
cognisant that the documents in hand are protocols; scattered pieces of information of oral
division agreements.91
At least some remnants are available, notwithstanding the Old Babylonian communication
mediums, stemming from a predominately oral society, based on multi-sensory
communication and symbolism.
However, the information and structure of a written
agreement to a certain extent differ from the scribal practices of scribal schools in city-states.
In each city-state there are discrepancies due to the time-period and scribal schools; however
the majority of practices and rules governing the structure and legal principles of specific
agreements in a city-state are more or less the same, with some legal and scribal practices
specific to a city-state.92
Generally, the details mentioned below are mostly included in the agreement/protocol. These
details however depend on various factors, such as the city-state’s scribal school traditions
with some discrepancies, scribal school practices, the specific circumstances of each case and
the details chosen by the scribe:93
Names of the parties and the relationship between them by a statement of their own
standing within their family;
Name and standing of the deceased estate owner;
Description of property awarded to each contractual party;
trained to draw up a contract of which the terms are clear and explicit towards the terms and obligations of the
contractual parties (Stone 2008:261). One of the few exceptions to the rule is where a party can prove that not
all the terms of the contract are intended to be concluded by the agreement: for instance the sale of a horse could
actually be just a receipt, not meant to be a sales agreement per se (Stone 2008:261). The named contra
proferentum rule is used in contracts to limit the effect of exclusion clauses where a contractual party uses very
precise wording to avoid liability. This rule is applied to a contractual party who is also the drafter of the
contract. It is effectively used in insurance contracts and contracts concluding with liability or negligence
exclusions (Stone 2008:297-301).
91
In later chapters, problems with the interpretation of old Babylonian protocols will become more evident.
For instance, questions as to what extent were the named preference share involved: was it the decision of the
head of the family only, or was there pressure from society to designate how to devolve the assets in a city-state?
92
Cf. Part B, Chapters 7 & 8 regarding comparisons of the different division agreements especially
discussions of the natural- and incidental elements of the different city-states of Larsa, Nippur and Sippar.
93
Cf. outline of incidental elements in Part B, Chapter 5 about methodological approach and Chapter 7 & 8
regarding comparisons in and between city-states. The average ancient Mesopotamian written law record
consists of a formalised summary of the proceedings accompanied by a recording of the date, names of witnesses
and oaths (if any) taken, together with the names of the judges presiding in the case of lawsuits (Greengus
1995:475).
86
Witnesses94 present and in most instances their names, as well as status, and sometimes
also their profession, together with witness seals;95
Name of the scribe, sometimes including his seal;96
Sometimes the “date” of the attestation of the oral agreement;97
Contracted parties who swore an oath, mostly indicative of the time and place of the
agreement, usually by the name of the reigning king and god or gods of the city or
“personal” god or city-state (as appear in the Sippar texts);
Usually parties stated that they would not make further claims.
Present-day scholars do not fully understood these and many other details of the agreements
for we have no conclusive written evidence of all of the oral family division agreements.
It also seems that after a division agreement and the discontinuance of co-ownership the
brothers/sisters
and/or
cousins/nephews
(co-beneficiaries/owners)
now
function
as
94
Witnesses in present-day law are accorded a different value from that in old Babylonian Larsa, Sippar
and Nippur. In present-day law, it is not in general an imperative to have witnesses included in the agreement
(Sharrock 2007:112). However, in South Africa and western countries it is a requirement in some documents
such as wills. Witnesses in present-day contracts play a role regarding the “authenticity” of the contractual
party’s signature when that party’s signature is later disputed Sharrock 007 11 . In the ancient Near East a
scribe and witnesses would seal the written transaction and envelope together with the signatories (Greengus
1995:475). In present-day law, the signatures of the contractual parties are sometimes obligatory, although in
the majority of documents the date and place are not required, but considered useful (Sharrock 2007:112). Cf.
Van der Merwe (2007:152-162) regarding the requirement today that, with exceptional cases, in the statute there
is no stipulation that a contract be written as a prerequisite formality; however “commonly” today a written
contract with signatories is required (Van der Merwe 2007:153). Thus, the value and function of an ancient Near
Eastern witness differs profoundly from present-day witnesses. Present-day witnesses authenticate the identity
of the signatory and do not play a part in the testimony of the terms and facts of the agreement. In the ancient
Near East the agreement is performed in front of the witnesses who witness the terms and conditions, together
with the scribe, who can then testify to the terms and conditions of the agreement, especially those terms and
conditions not included in the written record. One interesting similarity between the court in the ancient Near
East and present-day court is the “court assistant” who is a lower-level royal official, or sometimes a soldier,
who serves as a present-day bailiff to escort unwilling parties to the hearing and enforce judicial directives and
decisions (Greengus 1995:475).
95
The parties and witnesses sealed the document by stamping their seals on the surface (Greengus
1995:475).
96
In the middle Babylonian period, those documents, which lacked seals, had impressions on them, made
by the use of fingernails on the hems of garments and placed next to their names. Originally, it seemed that the
witnesses were predominantly male, but in the old Babylonian period women served also as witnesses. In the
Neo-Babylonian period, it seems that women could not serve as witnesses, but their presence at the proceedings
was noted. Notwithstanding, these women in all periods could own, buy and sell assets in a full contractual
capacity, although in the Neo-Babylonian period only via a male relative. Slaves appeared as witnesses or
contracting parties at Nuzi in the Neo-Assyrian and Neo-Babylonian documents (Greengus 1995:475).
97
he date when the oral division agreement was recorded and witnessed is referred to as a “date formula”,
for unlike our “date-system” the old Babylonian ancient Near Eastern) dates were reflected and considered as a
formula. There are variations of dates regarding the names and numbers; however some division agreements
contained a year name date formula. In the year date formula of a division agreement the king had normally done
something significant. Cf. in this regard Westenholz (1974) and Horsnell (1977) who observed to clarify the
grammar and syntax of the Sumerian year names. Cf. Cohen’s 199 discussions of the cultic calendars.
87
independent core family units. However, there could be some other assets where they retain
co-ownership, due to the receipt of a communally-shared inheritance and still, to a certain
extent, maintain the deceased family member’s estate, thus managing the family assets as a
family or even a type of “partnership” .98
4.4 DEVELOPMENT OF SCRIBAL SCHOOLS
In the Mesopotamian period known as the Ur III period, large amounts of inventories
consisting of legal documents, court decisions, as well as palace and administrative
documents were excavated. Even in the later periods, during the first four hundred years of
the second millennium BCE, a vast number of contracts, agreements, sales, wills and other
legal documents involving private individuals, as well as a large group of official letters, were
excavated (Kramer 1962:302). In this period, the Akkadian scribes made copies of Sumerian
literary and lexical documents, although Sumerian gradually became obsolete as a spoken
language.
Mathematical documents, law codes or law collections,99 and “thousands of commercial
letters and business transactions” were excavated from the
ssyrian settlements in central
Anatolia, as were numerous letters and administrative documents in the rest of Syria. These
“give some idea of the ethnic groupings and social structure of the lands to the west of
Mesopotamia” Kramer 196 :301). Large collections of literature were accumulated during
King
ammu-r pi’s reign, in the Old Babylonian period especially at Nippur, Ur and Kish
(Lukas 1979:306). These tablets stem from a wider area. They are believed to be part of
school exercises, as many duplicate texts were found with incomplete copies (Millard
198 144 . Compositions include the
trakhasis Epic, Law Collection of
ammu-r pi L
and poems (e.g. return of Ninurta to Nippur) (Millard 1982:145). Apart from the written
98
Cf. in this regard Greengus (1995) and the contrasting view of Leemans (1986). In Part A, Chapter 2 the
discussion of the characteristics of Mesopotamian legal traditions with special reference to the kinship
relationship outlines different opinions of the obligations of a kinship relationships against the contractual ability
of members of a family based on free will and bargaining.
99
Cf. Claassens (2010) regarding the position and application of the named law codes, or law collections,
or cuneiform collections, such as the law collection of ammu-r pi (LH), as a source in the study of
Mesopotamian law traditions. Claassens (2010:461) argues: “The generic classification of the named cuneiform
collections of Mesopotamia as ‘law codes’ encompasses a certain meaning, which may obscure and confuse the
recent debate concerning whether these collections are an authentic source of Mesopotamian legal traditions
regarding which different theories had already developed. The cuneiform collections of ancient Mesopotamia
are not a singular body of authoritative law but consist of different meanings extended over long periods with
social, political, economic and ethnic differences”. Cf Roth’s 199 discussions of the different layers of
meanings of these collections in her valuable contribution to the translations of a selection of law collections and
other cuneiform law and/or scribal texts.
88
documents, which an edubba-master could use in oral, written or a combination of oral and
written teaching methods, there is also a documented oral tradition of poems, songs, wisdom
literature and stories (ša pi u
āni) (Lukas 1979:318; Charpin 2010b:25-26).
Our understanding of Sumerian, the scribal school system’s method of teaching and
curriculum is gleaned from these textbooks and the essays writing about school life in the first
half of the second millennium. It is in these practice tablets of the pupils that we discover the
curriculum spectrum from the “sorry scratches of the ‘first grader’ to the elegantly made signs
of the advanced student about to become a ‘graduate’” Kramer 196
07 .
4.5 DIFFERENT APPROACHES IN THE STUDY OF SCRIBAL SCHOOLS
4.5.1
Introduction
Various scholars over the past years have provided insight into ancient Mesopotamian scribal
education from different perspectives, especially from the early second millennium and the
Old Babylonian period. The reason for this, according to Delnero (2010
, is the “abundant
evidence of scribal training”.
The traditional approach was that the edubba-school was perceived as a kind of formal
education institution for training scribes, very similar to a formal school/university in presentday context. This approach is nowadays criticised by scholars such as Robson (2001) and
Delnero
010 , to name a few, as an “idealised account” of how scribes were trained.
Robson (2001) presents different approaches, while Delnero (2010) adds emphasis on the
typology of tablets as a possible new way of looking at them. Delnero (2010:53) considers
the study of tablet typology as a “productive approach”, together with the study of text in an
archaeological context.
Robson (2001:39) distinguished between three approaches in the understanding of
Mesopotamian schooling, namely the traditional approach, the study of physical aspects of
tablets and archaeological evidence.
89
4.5.2 Traditional approach
The first approach to scribal training derived mainly from Kramer and other scholars’
description of Old Babylonian school life where Kramer (1962) focuses on the interpretation
of second millennium Sumerian school texts (see also Volk 1996; 2000). Stories describe Old
Babylonian school life (Kramer 1962:301-314;100 Robson 2001:39). Together with Kramer
(1951), scholars such as Falkenstein (1953) and Sjöberg (1976) gave well-known accounts of
a Sumerian school, named the edubba, focussing on a discussion of Sumerian literary
composition in a Sumerian scribal school.
Kramer (1962:302), adopting a cultural anthropological stance, stated that in the Ur III period
of a Sumerian school the edubba or tablet-house as it is known in Sumerian “developed into a
centre of learning and scholarship”. For example in ancient Shuruppak, “school textbooks”
dated ca.
00 BCE were excavated, which consist of “lists of goods, animals, artefacts and a
varied assortment of words and phrases” Kramer 196
ccording to Kramer 196
07 .
07 the scribal schools were situated in “every important city in
Sumer”, while in the last half of the third millennium the “school system matured and
flourished”. Vast amounts of clay tablets from this period were excavated and scribes could
be placed in a hierarchical order of junior and senior scribes, royal and temple scribes. It
seems that certain scribes were “highly specialized for particular categories of administrative
activities” and were “leading officials in state and government” Kramer 196
07 .
Apart from scribes in the services of the palace and temples, there were those “who devoted
their lives to teaching and learning” Kramer 196
08 . The majority of them came from the
wealthy sector of society: families who could afford training for their children (more
especially their sons), as the education and training process was lengthy and expensive.
Kramer (1962:301-314) sketches an idealistic life of a school-boy where he starts early to
Kramer (1962:38-41 refers to the story of a schoolboy who can do nothing right “ he door monitor
said , ‘Why did you go out without my say-so˹’ e beat me. he jug monitor, ‘Why did you take [water or
beer] without my say-so˹’ e beat me. he Sumerian monitor, ‘You spoke in kkadian!’ e beat me. My
teacher, ‘Your handwriting is not at all good!’ e beat me.” Also in Edubba D, outlined by Civil (1985:70), a
boy boasted about how good he was at his work “I really know my scribal knowledge; I don’t get stuck at
anything! My teacher shows me a certain sign; I add one or two more from memory! Now I have been here for
the stipulated time I can cope with Sumerian, scribal work, archiving, accounting, calculation! I can even hold a
conversation in Sumerian! senior heard him and respond drily ‘If that is so, Sumerian must be keeping its
secrets from you’” Cf. Kramer 1949:199-215 first translation and discussion of the text; George 2005:2).
100
90
school and studies at night, thus attending school “from sunrise to sunset” Kramer 196
11 .
He refers to a study carried out by Schneider, who found that the fathers of scribes stemmed
from certain sectors of society. These sectors included for example governors, city fathers,
ambassadors, temple administrators, military officers, sea captains, senior tax officials, priests
of various sorts, managers, supervisors, foremen, scribes, archivists and accountants – in
short, the “wealthier citizens of an urban community” Kramer 196
08 .
Kramer (1962) makes assumptions from the school texts that the curriculum of a scribal
school consists of two categories, namely:
“semi-scientific and scholarly” with the aim being to teach a school-son to write
Sumerian, and;
an instruction text based on a “primarily of linguistic classification” wherein the
Sumerian language was classified into “groups of related words and phrases”, which the
pupils had to copy and memorize.
Texts excavated comprise of long lists of names of trees, reeds, animals, countries, cities,
stones, mathematical tables and grammatical texts Kramer 196
09 .
he “literary and
creative” side of the curriculum consisted “primarily of studying, copying and imitating the
large and diversified group of literary compositions” and also included hymns, lamentations,
proverbs, fables and essays (Kramer 1962:309-310).
These cuneiform documents are invaluable in understanding the Sumerian and Akkadian
“way of life their social structure, economic interests, legal practices, literary efforts,
religious attitudes, and world view” Kramer 196
and
0 . This author argues that Sumerians
kkadians live together in the third and early second century BCE and that therefore “a
great deal of cultural borrowing and interchange” took place Kramer 196
Robson
0 .
001 9 criticises Kramer’s approach as being “very stylized and even an
exaggerated picture of scribal schooling” that does not give a “realistic representation”.
Robson
001 9 argues that in terms of realism the study gives “a very generalized image
which does not acknowledge chronological change or geographical variation; or the role of
individual anomaly or innovation in the educational process”. Furthermore, the stories used
91
by Kramer101 “tell us nothing about the physical environment of scribal schools” Robson
2001:39).
George (2005:1) critically discusses the edubba, the ancient Mesopotamian school, in
“literature and reality”.
his author considers that the named “edubba-literature” refers to the
Old Babylonian literature of Sumerian literary compositions, which give a description of the
scribal school.
he syllabus included “complicated and progressively difficult corpus of sign-
lists, lexical texts and literary compositions” and was excavated mainly at Nippur, Ur, Isin,
Uruk and other sites. According to George (2005:1), Kramer (1949) and Civil (1985) this
only provide interesting discussions about the scribal school.
4.5.3
Physical tablets rather than the text approach
The second approach is adopted mainly by Tinney (1998; 1999), Veldhuis (1997; 1997-98;
2000), Delnero (2010) and Gesche (2000). They focus on physical tablets, not on texts, and
emphasise the multi-textual tablet “as a by-product of an educational process”. Robson
001 40 is of the view that this approach gives “major insights into our understanding of
ancient Mesopotamian schooling”.
Delnero102 (2010:54-55) states that when tablets are classified into different types, new insight
is gained into the function of scribal exercises.
ogether with the studying of “physical
characteristics and other formal features”, one can differentiate between texts and exercises,
copied in the elementary phase, and tablets from later stages, as well as the types of methods
that scribes used (Delnero 2010:54-55).
Veldhuis (1997) studied Type II tablets and compiled the elementary scribal curriculum of
Old Babylonian Nippur. He focused also on the Old Babylonian lists of trees and wooden
objects in Nippur (see Veldhuis 1997:7-10). Veldhuis (1997:63) identified four phases of
learning in the schools of which phase four (the last phase consists of “model contracts and
Cf. Robson’s 001 detailed comments on Volk under the heading archaeological evidence infra. She
criticises Volk’s opinion that the é-dub-ba-a was “the house that distributes -ba tablets” or “house in which
tablets are distributed”. She contends it was a school and a house (Robson 2001:44 fn.10).
102
Cf. Delnero (2010:53-69) regarding a synoptic discussion of the typology of the different types of tablets,
revealing from material evidence how the scribes trained. He uses Civil’s four basic types of tablets from Nippur
and opines that it can be applied to the types found at Ur, Susa, Sippar, Uruk, Kish and other places where old
Babylonian tablets were found. The extent of this thesis does not permit a detailed study of the methods of
scribal training or discussion of different approaches.
101
92
proverbs”.103 The researcher opines that the scribe, in the last phase of his/her education and
training, was trained in the drafting of division agreements, amongst other agreements and
proverbs.104
Veldhuis (1997:147) theorises that Old Babylonian scribes “wanted a more complicated
system and so created it”.
he reason for this was to “create a realm of high-status
knowledge”. Veldhuis 1997 8 -8
suggests that in a Nippur scribal school the “lack of
attention to Akkadian and the overdose of high-brow Sumerian” showed that the “Sumerian
language and tradition as completely as possible was considered to be all important”.
e
concedes that a student, although “introduced to the technique of writing”, was
quintessentially “introduced to the heritage of Sumerian writing and Sumerian poetics”
(Veldhuis 1997:83).
4.5.4
Archaeological evidence
The third approach comprises a focus on the archaeological evidence; various contributions
were made in this respect. For instance, Robson (2001) discusses scribal training in Nippur;
Charpin (1986) and Brusasco (1999-2000) discuss scribal training in Ur. Delnero (2010)
made a synthesis of the archaeological evidence for scribal education in the Mesopotamian
cities of Isin, Kish, Babylon and Uruk; Tanret (2002) studied the gala-ma s’s house in Sippar
mm num; and Stone 1987 investigates certain houses and scribal activities in Nippur.
Veldhuis 1997 6 reflects the following in a table format. “Phase 1 writing techniques which include
elementary exercises (exercises in sign forms (single wedges); syllable alphabet B (sign forms), tu-ta-ti (syllabic
values) and lists of personal names (e.g. dinana-t˹š): basic Akkadian and Sumerian. Phase 2: thematic noun lists,
the named fore-runners to UR5-RA = hubullu which include lists of trees and wooden objects; lists of reeds,
vessels, leathers, and metal objects; lists of animals and meats; lists of stones, plants, fish, birds, and garments;
lists of geographical names and terms, and stars and lists of foodstuffs. Phase 3: advanced lists (of which the
order is uncertain) which include metrological lists and tables; Proto-Ea (Sumerian readings of signs); Proto-Lu
(thematic-acrographic: occupations, kinship terms, etc.); Proto-Izi; Proto-Kagal (acrographic: ordered by initial
sign(s); Nigga; Proto-Diri (compound signs) and multiplication and reciprocal tables. Phase 4: introductory
Sumerian which includes model contracts Sumerian sentences and proverbs literary Sumerian .”
104
he researcher further theorises that the scribe’s training in model contracts and adverbs shows that with
successful completion of the training, the scribe probably mastered and proved insight of the following:
• an understanding and insight in difficult terms and conditions of the agreement between contractual parties,
• an ability to record in clear, specific, and focused details, the “meeting of minds” of the contractual parties by
recording down the “essential” and “natural terms”, the contractual parties agreed to,
• an ability to sequence logically, by chronology, the events and terms of the agreement,
• an understanding of the whole design of the agreement’s details, terms and conditions, before recording it on
a clay tablet; reflecting at least the most important details of the agreement; and
• an ability to put related provisions together (cohesion).
Some of the division agreements, especially from Nippur show these types of abilities and training (cf. Chapters
7-8). However, the open question is: if in instances of insufficient detail of the recordings - were it due to a
specific school tradition; lack of scribe’s commitment to record the details; or the influence of a predominantly
oral society, in which the written word was less important than the performance of the legal act/agreement?
103
93
The traditionally-inclined commentators who study scribal schools, including Kramer (1949),
Civil (1985), Falkenstein (1953), Gadd (1956) and Landsberger (1958), suggest that the
edduba as an “institution of education” ended at the end of the Old Babylonian period, and in
the named ‘post-Old Babylonian period’ was reserved for private schooling George 00 :3).
George (2005:3) argues that if attention is given to archaeological sources of the Old
Babylonian period there are contradictions to this viewpoint.
It seems that the edubba was not an academic institution as much as these scholars wanted it
to be and George (2005:3) corroborates his viewpoint by referencing three case studies. The
first case study is House F in Area TA at Nippur, excavated by Carl Haines and Donald
McCown in 1951–2; studied in detail by Stone (1987:56-9); Charpin (1990:4-7) and dated
during the reign of king Samsu-iluna. In a certain room 205, fourteen hundred cuneiform
tablets and fragments were excavated of which most were used as landfill. These texts
included mostly literary compositions and school exercises. The other two case studies were
of houses at Ur, excavated by Sir Leonard Woolley (excavation seasons of 1922-34) where
forty tablets were found; and the case study of two Old Babylonian dwelling-houses named
No. 7 Quiet Street and No. 1 Broad Street (George 2005:3).
Charpin (1986:419-86) also studied the two houses and argues that House F in Area TA at
Nippur, was the private dwelling-house of a literate person from the priestly class. According
to him No. 7 Quiet Street was a place of “modest” scribal education. Nevertheless, probably
not No. 1 Broad Street, “for the tablets that were built into the fabric of its floors may have
come from elsewhere”. Although it seems that House F, No. 7 Quiet Street and others like
them functioned as places of schooling. Elsewhere for example at Isin and Tell Harmal a
scribal school “was a small-scale occupation run by private individuals and not by the state”.
This view, according to Charpin (1986) and George (2005), is more generally accepted.
George
00 4 writes, “the houses of the Old Babylonian scholar-teachers were sizeable
residences in good neighbourhood”, and were not “institutional buildings housing large-scale
educational establishments”.
In an attempt to understand the confusion, George (2005:5) states that the edubba literature
was “old” when used in the syllabus and derived from an institutionalised scribal tradition,
which was at its highest point in the Ur III period at places such as Nippur and Ur. “ hese
institutions were very probably an innovation of this dynasty made to satisfy the growing
94
bureaucracy’s demand for scribes that could not be met by the small-scale operations of the
private sector”.
e refers to the sentiments of King Shulgi using expressions such as é-gé-
tug-nissaba-mul, “ ouse of Wisdom of Starry Nissaba”, and ki-úmun, “Place of Learning”
(George 2005:5).
George
00 6 argues, “the é-dub-ba-a of the edubba-literature was an architectural as well
as an institutional reality.”
e adds, “in contrast to the Old Babylonian schools described
earlier, we can suppose that these grand imperial schools occupied purpose-built
accommodation, whether whole buildings or complexes of rooms.” Thus, this tradition was
only passed on to private dwellings in good neighbourhoods of the Old Babylonian period.
Children (two or three boys – their sons or relatives) were taught one at a time (George
2005:6).
ccordingly, George’s
00
studies indicate the possibility that Old Babylonian scribes
were trained in small groups in private houses and not in large institutional buildings, like
present-day schools, as was previously assumed by scholars.
Robson
001 40 examines “the archaeology and cuneiform tablets of one scribal school”,
the so called “ ouse F” which was in existence in Nippur during the early reign of King
Samsu-iluna, where thousands of tablet fragments were excavated from the site (Robson
2001:39-40). Robson (2001:40 fn.
mentions that “ ouse F” and other houses were studied
by McCown and Haines (1967:64-66) and Stone (1987:56-59) while reviews regarding their
studies were carried out by Charpin (1989-90) and Postgate (1990a) and Van Driel (1990)
(Robson 2001:40).
Robson
001 44 refers to “ ouse F” as a school and a house. She mentions that the
Sumerian word for edduba means “tablet house” after the
kkadian bīt uppim). Robson
refers to Volk, who was of the opinion that the edduba was “the house that distributes -ba)
tablets” or “house in which tablets are distributed” Robson 001 44 fn. 10). However, due
to “the huge numbers of literary and scholarly tablets” she holds the view that it was a school
and a house; furthermore, there were tablets built in the floors, walls and furniture and there
were a “large number of joins between rooms and across substrata” which according to her
“implies” that the tablets found were a “homogeneous group”. She is further of the opinion
that these tablets do not come from elsewhere due to the fact that when she was examining the
95
“household furnishings” there was “a large storage jar filled with small pots” and “other
smaller boxes” which were “built of whole tablets plastered over, and was found filled with
tablet fragments and clay”.
ll of these boxes functioned as “recycling bins, into which old
tablets could be thrown for soaking, reshaping and re-using”.
were also found in other houses, for example that in Sippar
hese named “recycling bins”
mn num (Robson 2001:44; cf.
Wilcke (2000) who surveyed the house).
Robson identifies the named “ ype II tablets” as the “most useful for recovering information
about the educational curriculum”.
he obverse of the tablet contains the lesson from which
the student used to learn, while on the left is the teacher’s lesson and the right side, the “poor
copy” that the students who wrote, used to rewrite the lesson Robson 001 4 .
Robson (2001:48) opines that when comparing the tablets found in Nippur in general with
those of House F it seems that the order of the school curricula differs, although the content
seems to be the same. According to her Sumerian literature was the main subject of the “postelementary-education” Robson 001 6 . It is important to note that although there was no
“standard curriculum” in Nippur, there was “a common fund or shared compositions upon
which individual teachers drew according to personal taste or pedagogical preference”
(Robson 2001:62).
In House F the teaching of Sumerian, dominated scribal education
(Robson 2001:62). The curriculum of House F was mainly written in Sumerian and according
to Robson it seems that these Old Babylonian schools in Nippur “were deliberately
traditionalist, continuing to promulgate Sumerian while most administrative, business and
legal documents were already written in kkadian” Robson 001 60 .
4.6 PRACTICAL FUNCTION OF SCRIBAL SCHOOLS
4.6.1
na ittišu
The scribes played a prominent role in the development of Mesopotamian culture. 105 The
tupšarru
106
(scribe) acquired extended knowledge and skills.107 Many of the documents
105
Cf. Pearce (1995:2270-2277) on the scribal school curriculum and scribal profession.
The earlier Sumerian word for a scribe was umbisag, and later dub-sar (Lukas 1979:307).
107
A reference has been found regarding a dispute between two writers, showing the snobbery and
overzealousness of the members of this profession towards each other regarding their skill and knowledge:
“What do you mean; I am not a scribe like you˹ When you write a document, it makes no sense. When you write
a letter, it is illegible. You go to divide an estate, but you are unable to divide it. For when you go to survey a
106
96
contain “legal” information, which serves as exercises in part of the school curriculum.
scribe who specialised in legal studies would, as a writer, be a copier at court or a writer for a
judge (Lukas 1979:317).108
There were important lexical and grammatical texts called ana ittišu, referring to the opening
words of a book (Driver & Miles 1952:25). These were exercises written in Sumerian with
legal material as their basis (Westbrook 2003:363). These ana ittišu were copied in the
edubba109 and Sumerian and Akkadian translations were studied (Lukas 1979:317). There
were two different types of ana ittišu texts, namely model court cases used for academic
purposes and legal exercises from law collections (or cuneiform collections),110 contracts and
legal phrases (Westbrook 2003:363).
The well-known murder case of Isin was copied
numerous times (Lukas 1979:317).111 These documents are considered by scholars such as
Driver & Miles (1952:25) to be important in the interpretation of the said law collections and
other legal documents. Unfortunately the copies are full of mistakes and ambiguity and some
caution must be exercised in the interpretation thereof (Driver & Miles 1956:26).
4.6.2
Student-scribes (male and/or female)
The students in scribal schools were mainly males (boys) and members of the upper class,
although there was evidence of some female scribes (Pearce 1995:2265).
Meier (1991:541) asserts that it was difficult to identify female scribes in the earlier period as
field, you are unable to hold the tape and the measuring rod; the pegs of the field you cannot drive in; you are not
able to figure out the sense… you do not know how to arbitrate between the contesting parties. You aggravate
struggle among brothers…. When you do multiplication, your work is full of errors…” Lukas 1979
.
108
Cf. discussion by Visicato (2000) regarding the earlier scribes of Mesopotamia and their role in society.
109
The Sumerian word for School was edubba or é-dub-ba-a and in Akkadian bīt-tuppi, literally translated
as “tablet-house” Lukas 1979 09 . The scholars or students (demu edubba) refer to each other as colleagues
(gimeaas, kinātu).
he pupil was called “school-son” and the alumnus “the school-son of the days past”
(Kramer 1962:308). The headmaster was adda edubba (master), while the adda edubba’s assistant was šešgal
or older brother (Lukas 1979:312-313). According to Kramer (1962:308) one of his duties was to write tablets
for the “school-son” to copy, which he would then examine, and also listen to the reciting of the lessons. The
head of the Sumerian school was the ummia which Kramer called the “expert” or “professor”, also called the
school-father. here were other members of the school called “the man in charge of drawing”, “the man in
charge of Sumerian” and “monitors in charge of attendance and special proctors responsible for discipline”
(Kramer 1962:308). Cf. Veldhuis (1997:24-25) and Veldhuis (1997-1998:44) who made contributions regarding
the outline of the scribal school curriculum.
110
Cf. Claassens (2010).
111
Cf. Roth (1998) regarding her interpretation of the Nippur murder trial and her analysis of this model
court exercise wherein she examines the gender assumptions in legal documents. Roth (1998:183) argues that
although men and women’s “interactions” are different in law, caution should be exercised with “constructs of
gender” in the study of Mesopotamian legal traditions.
97
there were no Sumerian gender markings and a scribe was only described as a dub-sar.
Owing to Akkadian influences the sal (sal-dub-sar) determinative for female scribes was
introduced, but not constantly applied. In the Old Babylonian period even a certain Ištarummi refers to herself as dub-sar, while some other female scribes used the feminine
determinative. Furthermore, scribes were not identified in letters (Meier 1991:541). We can
ascertain that there were female scribes in the Old Babylonian period, because there were
studies of fourteen female scribes in the city of Sippar and evidence in other places such as
the Mari Palace (Meier 1991 4 . Pearce 199
66 mentioned that there were “notable
exceptions”, where women acted as scribes, especially in Sippar, at the cloister, where they
recorded transactions, for the members of the cloister. Harris (1963:138-139) identified eight
nadītums in Sippar who acted as scribes, of which, she considered one to be industrious in her
work as a scribe.
The deity of the Mesopotamian scribe in the late period was the male god Nabu, whereas in
the earlier period the female goddess Nidaba was the overseer of scribes and their craft.112
Nidaba was the scribe ( upšarratu ) at the gathering of the gods, also the chief scribe (dubsar kalam-ma) of Anu and depicted as a scribe holding a stylus and a tablet to compose a
text. King Shulgi states in a text “I am a wise scribe of Nisaba Nidaba ” Meier 1991 4 .
Meier (1991:544) opines that this presence of a goddess of writing, licenses the inclusion of
women as female scribes and even instructors, although there was a limitation in numbers in
relation to men, due to the “substantial investment in terms of education and who require
commitments of trust as alternatives in a male-dominated arena” Meier 1991 47 .
he status of scribes is uncertain, although there are “generous statements” that the scribes
Kramer (1962:313- 14 mentions a scribe who “with joy in his heart” speaks the following words to a
schoolboy after the latter’s father ordered the servants to do the following to the school teacher pour fragrant oil
over him, dress him in a garment, give him extra money and put a ring on his hand: “Young fellow, because
you hated not my words, neglected them not, may you complete the scribal art from beginning to end. Because
you gave me everything without stint, paid me a salary larger than my efforts (deserve), (and) have honored me,
may Nidaba, the queen of guardian angels, be your guardian angel; may your pointed stylus write well for you;
may your exercises contain no faults. Of your brothers, may you be their leader; of your friends, may you be
their chief; may you rank the highest among the schoolboys, satisfy all who walk to and fro in the palaces. Little
fellow, you know (your) father, I am second to him; that homage be paid to you, that you be blessed, may the
god of your father bring this about with firm hand; he will bring prayer and supplication to Nidaba your queen,
as if it were a matter for your good. Thus, when you put a kindly hand on the . . . of the teacher, (and) on the
forehead of the ‘big brother,’ then your young comrades will show you favor. You have carried out well the
school's activities; you are a man of learning. You have exalted Nidaba, the queen of learning. O Nidaba,
praise!”
112
98
were “members of privileged elite who might look with contempt on their fellow citizens”.
Meier refers to Parpola’s opinion that scribes receive respect to an extent, which may “not
necessarily lead to leisure and surplus wealth” Meier 1991 44 .
4.7 SCRIBAL SCHOOLS: NIPPUR AND SIPPAR
4.7.1 Scribal Schools: Nippur
Nippur is sometimes considered by scholars as “a town of academics, a Mesopotamian
xford or Cambridge” and Leick
001 14
goes so far as to refer to it as a city that owns a
“reputation as much for intellectual snobbery as for erudition in obscure disciplines”.
There are a vast number of clay tablets reflecting scribal school traditions in the ancient
Babylonian period; the school curriculum allowed for a diversity of subjects to choose from
for specialisation in professions (Leick 2001:162-163). There were different stages in Nippur
scribal schools, and apart from the more elementary stages of the basic handling of a tablet
and writing with a stylus, there were also a vast number of syllabuses such as the ABC,
musical values, pronunciation, and then later in the curriculum, lexical texts and mathematics
(Leick 2001:162). More advanced subjects such as the anu ittišu - a “compendium of law
and legal phraseology” - learning to “compose a public inscription for a stele”, royal
inscriptions, and so forth were taught (Leick 2001:163).
Nippur had a reputation for “learning and literary” activities. It seems that there was a degree
of snobbery in Nippur regarding the predominant use of Sumerian in texts. For instance the
story in an edubba text, where a doctor from Isin cured a man from Nippur. The grateful
patient invited the doctor to dine and feast with him, giving him directions (Leick 2001:163).
s the doctor follows his client’s directions, he reaches Nippur and asks a gardening woman
for further directions. When the doctor asks her for directions, she answers him in Sumerian
and the doctor believes that she has cursed him. The tale ends with the woman thinking.
“What a fool he is! (the doctor) The students ought to get together and chase him out of the
Great Gate with their practice tablets!”
hus, Leick concludes that the story wants us to
“believe” that “even a vegetable seller spoke Sumerian” Leick
001 164 .
Robertson
(1992:127 opines that “Nippur represented a primordial, yet living, symbol of Sumerian
identity, a continuing reminder of the underlying shared culture and tradition that was
99
inherent in the term ‘Sumer’”.
Leick
001 16
states that “an unusually complex collection of written material” was
unearthed mostly in Sumerian. There were numerous scribal schools until King Samsuiluna’s reign, when something catastrophic happened and the Nippur population declined.
he named “ ablet”
ill excavated 60,000 cuneiform tablets with a rich variety of Sumerian
literature, including the Sumerian Great Flood story.
his hill is considered a “campus for
student scribes and teachers” Bertman 00 28).113
During the Old Babylonian period, Sumerian survived as the written language in religious
texts, literature and legal documents, although not spoken (Postgate 1977:97). Sumerian as a
written medium were compared by scholars such as Postgate (1977:98) and Leick (2001:28);
the same as Latin was for the medieval western world. Although Sumerian had become
obsolete as a spoken language, it was still used as a written one.
The on-going debate concerning the time of the discontinuation of the Sumerian language
increased the role of scribal schools as a learning institution (Woods 2006:11-12). For Woods
(2006:1
it seems that schools were such institutions; however they still had a “functional
sense of a scribal curriculum and through this a vast number of Sumerian literature in
thousands of exercise tablets emerged as by-products of scribal training” Woods 006 12).
e added that there was an oral component in training whereby students were “instructed and
drilled orally” by means of dialogues.
of Sumerian and Akkadian.
he language of instruction was Sumerian or a mixture
Sumerian was even spoken in the schools in normal
communication as part of the “scholarly milieu” Woods 006 11 . The majority of writings
were in Akkadian, although the language of learning was Sumerian. The children had to
master the Sumerian language and even a proverb stated: dub-sar eme-gir15 nu-mu-un-zu-a
a-na-àm dub-sar e-ne, translated as “ scribe who knows no Sumerian, what sort of scribe is
he” George 00
; Woods 2006:12-18).
Michalowski (2000:178) avers that we cannot simply ask the usual question “when did the
language cease to be spoken˹” or, as some would prefer to phrase it “when was it no longer
113
Owing to this vast amount of clay tablets reflecting the scribal school tradition and curriculum in the Old
Babylonian period it seems that it was possible to choose a diversity of subjects for specialisation in different
professions (Leick 2001:162-163).
100
understood in vernacular conversation?”
Michalowski
000 178 concludes, “...this is
obviously a complex matter that requires several different modes of investigation”. It is
therefore better not to ask this question, but continue to investigate the “various lives” of
Sumerian language (Michalowski 2000:198; Michalowski 2006).
In ancient Mesopotamia, however, the long life of written Sumerian and its coexistence with
written
kkadian “guaranteed the preservation and expansion of these cultural elements,
albeit within limited social circles”.
ence, “Sumerian was a movable feast” Michalowski
2000:198).
4.7.2 Scribal Schools: Sippar
Tanret (2004:34) uses the references of a few scribes from the textual sources of Old
Babylonian Sippar to discuss the workdays and scribal activity of Old Babylonian Sippar.
These texts originate from the archive of galama s Inanna-mansum and his son Ur-Utu of
ancient Sippar- mn num. For instance, ṣumum-li i was a scribe for eighteen years, while
according to anret
004 4 he was “the best attested scribe of the Old Babylonian period”.
He uses the title dub-sar or du-mu-é-dub-ba-a. The galama s hired these scribes to draw
up contracts, wherein they are the creditor or lessor, but not the seller or debtor; thus only the
contracting party effecting the alienation (Tanret 2004:34-35).
While observing the scribes’ work and the extent of the archives at Sippar, Tanret wished to
establish the workload of a single scribe and concluded that as maximum maximo rum a text
was inscribed every two and a half day. Therefore, he suggests that ṣumum-li i would have
worked for other archive owners as well (Tanret 2004:35). There were scribes who filled in
and completed ṣumum-li i’s work and thus wrote for the galama s, when ṣumum-li i was
not available (Tanret 2004:43).
Tanret (2004:43) further observed the Ur-Utu archive, with the aim to identify the teacher and
to see if there were other professional duties, which a scribe performed besides writing. He
examined the archaeological and textual remains in the courtyard of the galama s’s house,
which consisted of a “building made of large bricks, built in the floor and protruding from it”.
There were some school exercises and purified clay, which may constitute evidence of scribal
training. It seems there was “no general or repeated training but the education of one single
101
person” and that whoever was educated here was part of the household: this was not a school
situation where an apprentice and a master are moving from one house to another (Tanret
2004:43).
From the dating of the exercises the learner was taught by a professional, as well as his father,
for approximately nine to twelve years (Tanret 2004:43). Scribes were therefore not only
used for their services of attestation, but also as teachers, and because of this dual function
they were assigned different titles (Tanret 2004:44).
4.8 CONCLUSIONS
When reflecting on the written significance of a family deceased division agreement in Old
Babylonian society, caution must be applied in the interpretation so as not to superimpose
present-day concepts of written agreements - their importance, relevance and functions - onto
Old Babylonian written agreements.
In ancient Babylonia, multi-sensory and symbolic communications, as well as recitations of
ritualised formulas, were all applied in a performance act. These forms of communication
surpassed their original function and they retain a deeper dramatic function of meaning and
performance. Unfortunately, it is not always possible for the scholar of today to detect these
important, quintessential elements of performance and their deeper meanings in the cuneiform
texts. This leaves the scholar of today with a distorted mirror interpretation of the cuneiform
division agreement written recordings.
Two important aspects in the interpretation of the cuneiform texts came to the fore. Firstly,
the scribe on a clay tablet recorded the agreed oral terms of the contractual parties. Secondly,
consideration is given to the scribal tradition’s functionality and importance in the recording
of an oral agreement.
The family deceased division agreement, as a special genre of division agreement and legal
act, emerged with its own terms and details from an oral agreement between family members
to an agreement captured on a clay tablet. When studying a clay tablet, the question remains
as to what the specific detailed background of a consensual agreement entails. Even with the
recording of such an agreement, it is still only a protocol and mostly a recording of
102
“elementary” findings and facts.
Essential elements can be identified as prerequisite
requirements for an oral and recorded agreement qualifying as a specific agreement: a family
deceased division agreement.
The essential elements are the following: closely-related
contractual parties, deceased family estate owner, divided assets part of a deceased family
estate; and consensus between the contractual parties, to move from co-ownership to soleownership, regarding some or all of the assets.
Sometimes more than this is reflected in the cuneiform text, which may include recordings of
unique legal practices present in a division agreement, categorised in this thesis as natural
elements. However, the reflection of legal practices (natural elements) is a fortunate bonus,
especially in a largely oral society based on multi-sensory communication and symbolism as
in ancient Mesopotamia, including Old Babylonia.
Furthermore, in the city-states different styles and terminology were used in accordance with
scribal school traditions of each city-state. However the following are generally included in
the agreement/protocol: namely, names of the parties and their relationship to each other,
name and standing of the deceased estate owner, description of property awarded to each
contractual party, witnesses present (names/status/profession/seals/name of the scribe , “date”
of attestation of the oral agreement, an oath by the name of the reigning king and god or gods
and, in most of the agreements, a non-contest confirmation.
In addition, with the studying of tablets and influence of scribal schools, scholars of today
adopt different perspectives. Traditionally, the focus fell on ancient Mesopotamian scribal
education where scholars investigated school life. The focus today is placed primarily on a
combination of studying the tablets together with their typological aspects - that is, the
physical aspects as well as the archaeological evidence.
Kramer (1951), Falkenstein (1953) and Sjöberg (1976) who gave well-known accounts of a
Sumerian school, named the edubba, focusing on a discussion of Sumerian literary
composition in a Sumerian scribal school, hold the traditionalist approach. This includes
important lexical and grammatical texts and exercises written in Sumerian with legal material
as their basis (Westbrook 2003:363; Driver & Miles 1952:25). In the edubba, the ana ittišu
were copied and its Sumerian and Akkadian translations studied (Lukas 1979:317).
The second approach is adopted mainly by Tinney (1998, 1999), Veldhuis (1997; 1997-98;
103
2000), Delnero (2010) and Gesche (2000). They focus on physical tablets studying “physical
characteristics and other formal features”, whereby one can differentiate between texts and
exercises copied in the elementary phase, and tablets from later stages, as well as the types of
methods.
The third approach comprises a focus on the archaeological evidence: Robson (2001)
discusses scribal training in Nippur; Charpin (1986) and Brusasco (1999-2000) discuss scribal
training in Ur. Charpin (1986:419–86) and George (2005:3) opine that the overall study of
the houses and the edubba literature found at House F in Area TA, No.7 Quiet Street and No.
1 Broad Street at Nippur show that the edubba was not a formal academic institution in the
sense of a present-day university, although private scribal school training took place.
By studying houses and archives, scholars established that scribal schools existed in citystates such as Old Babylonian Nippur and Sippar. Scholars sometimes consider Nippur as “a
town of academics, a Mesopotamian
xford or Cambridge”. There were different stages in
Nippur scribal schools and the school curriculum allowed for a diversity of subjects. Nippur’s
reputation for “learning and literary” activities contributes to the city-state’s special attributes,
where also Sumerian survived as the written language in religious texts, literature and legal
documents, although not spoken. Tanret (2004:34) uses the references of a few scribes from
the textual sources of Old Babylonian Sippar to discuss the workdays and scribal activity of
Old Babylonian Sippar, focusing on the Ur-Utu archive. Tanret (2004:44) concluded that
scribes were used for their services of attestation, and they also acted as teachers. For each
function, different titles were assigned to them.
The scribes from the different scribal schools were members of a privileged élite and received
respect from society. In their painstaking copying and recopying of information on clay
tablets, they guaranteed the preservation and continuance of legal practices through scribal
school traditions and the written communication mediums of Sumerian and Akkadian.
However, scholars of today should constantly reorient themselves towards a better
understanding of the dynamics and concepts of Old Babylonian written agreements and the
written significance of the tablets.
104
PART B
CORE SECTION: CONTENT ANALYSIS AND TYPOLOGICAL
COMPARISON STUDY OF FAMILY DECEASED DIVISION
AGREEMENTS OF OLD BABYLONIAN LARSA, SIPPAR AND NIPPUR
PROLOGUE
The aim of the core section is to offer some reflection on a complex legal notion used in
ancient Babylonian life as a successful, timeless,114 estate administration tool, to obviate any
undesirable consequences of co-ownership of bequeathed property in the Old Babylonian
city-states of Larsa, Nippur, and Sippar.
In Chapter 5 of Part B, special attention is accorded to a methodology-design, named the
analysis-model, for the content analysis and study of family deceased division agreements.
The essential elements of a family deceased division agreement are firstly identified; and
within this framework other aspects and elements of the recorded agreement are secondly
categorised and studied by means of different groups. These are as the natural and incidental
elements, and its subcategories, to reflect new perspectives regarding the division agreement’s
meaning, purpose and spirit in ancient Babylonian urban existence.
The purpose of Chapter 6 of Part B is to provide an exposition of certain terms present in the
texts.
In Chapter 7, the agreements in each city-state, Larsa, Nippur and Sippar, are discussed on the
basis of a content analysis and compared. Thereafter, in addition to this study, a typological
comparison of city-state vs. city-state follows in Chapter 8, and some final conclusions are
reached.
114
The division agreement is an agreement found in different countries and different legal systems with the
same reason for commencement namely the dissolution of co-ownership and same solutions of dissolution. Cf.
in this regard Chapter 1, Introduction in volume 1 and Appendix K in volume 2.
105
106
PART B
CONTENT ANALYSIS AND TYPOLOGICAL COMPARISON STUDY
CHAPTER FIVE
ANALYSIS-MODEL
Through a jurisprudence content analysis using a typologically-designed
methodology, the family deceased division agreement in Old Babylonian
Larsa, Nippur and Sippar has been systematically categorised, outlined and
studied within a framework of pre-requisite essential elements, together
with other two categories of elements, namely natural and incidental
elements, mirroring new perspectives regarding the agreement’s meaning,
purpose and spirit. This specification of categories by the separation of
components and details of the agreement is named the analysis-model. The
categorisation of these components and details of the agreement is due to
practical and logical consequences, flowing from the written agreement
concerning its legal practices and scribal traditions. The aim and purpose of
the analysis-model is a simplification in the analysis of such agreements.
5.1 INTRODUCTION
In this chapter, special attention will be accorded to a developed methodology based on a
typological approach115 in the study of family deceased division agreements of Old
Babylonian Larsa, Nippur and Sippar, wherein the agreement is systematically divided into
groups within a framework of a group of obligatory, essential elements. Within these groups,
certain components and details of the agreement are identified.
The family deceased division agreement is a complex legal notion; hence, the aim and
purpose of the methodology is to simplify the analysis of Old Babylonian division
agreements. The method is named the analysis-model.
115
Cf. Malul (1990) and Beteille (1990). Beteile (1990:2260) refers to Dumont who regards his work as a
“typifying” approach, as opposed to the “classifying” approach of Barth, Berreman and others. ccording to
Dumont, the named classifying approach derives from the natural sciences. The typifying approach is a
“comprehensive approach” keeping the whole of society in mind while studying it. “Underlying all this is a very
strong assumption of the organic unity of a civilisation”. Cf. Malul’s 1990 discussions of the two approaches
in the study of ancient Near Eastern sources: namely, historical and typological comparisons under the
subheading “Different methodology approaches” in this chapter.
107
The specification structure of the methodology approach in the content analysis of the named
type of agreement is explained by the following illustrative example. Consider such an
agreement as a “house”.116 This needs essential building materials (elements) to qualify as a
house. These essential elements are present in an oral agreement and are subsequently
reflected in the recorded agreement. When the basic building materials (elements) are all
present, the “house” or agreement is completed.
However, not every house nor, in this instance, every division agreement is the same. The
structure of the “house” or agreement may differ in accordance with legal practices and
preferences of contractual parties, regarding agreed terms and conditions of the agreement.
For instance, the house can have a patio, or be a double storey or have a garage attached to it.
These are termed the natural elements, which are the legal practices governing an agreement
by choice of the contractual parties and/or city-state.117
Finally, in the recording of an oral agreement by a scribe, the agreement is “decorated”, like
the interior and exterior decorations of a house, which are called the incidental elements.118
The house decorations may include the choice of type of windows, the colour of the paint,
etcetera. In a family deceased division agreement the scribe, in accordance with the scribal
tradition in a given city-state and possibly a given period, uses different techniques and styles
“decorations” to capture the orally-agreed division agreement on a clay tablet.
Note infra the illustrative example of the “house”/family deceased division agreement.
Within the framework of essential elements of such an agreement, one group, namely the named natural
elements, is outlined: the legal practices of the different old Babylonian city-states of Larsa, Nippur and Sippar
as reflected in forty-six division agreements. These legal practices are included in this group, for they are
explicitly mentioned in the recorded agreement and their absence or presence will not affect the essential
elements needed for the agreement to qualify as a division agreement.
118
The second category consisting of incidental elements is divided into two categories: namely, the written
formalities of the agreements and the qualities of the texts. The incidental elements partly reflect practices of the
different scribal school traditions and partly constitute a barometer of the quality of agreement used in the
analysis.
116
117
108
Figure 10 Schematic explanations of division agreement elements as a house
In this chapter, the methodological approaches of Goetze (1949); Bottéro (1992); Westbrook
(1995); Roth (2001); Jackson (1980); Malul (1988; 1990) and Hibbits (1992) are outlined,
regarding their study of ancient Near East “legal” textual sources.
Following the practical application of a family division agreement as background for the
analysis-model, the motivation for the design of a specific method, in applying the content
analysis of the said agreements is given, in order to simplify the study of this complex legal
notion and its details.
109
Thereafter, the group structures used in the analysis of Old Babylonian division agreements
are explained, which include the details and reasons for the different categories of elements
present in an oral and recorded agreement.
The contents of a division agreement are
classified within two main groups: namely, the essential and natural elements reflecting the
oral agreement between the parties, and incidental elements found in the written division
agreement as a result of scribal traditions, using a table as a schematic example and guide.
Finally, the differences between the family deased division agreement and other types of
division agreements, are given.
5.2 DIFFERENT METHODOLOGICAL APPROACHES
Scholars developed methodologies in the study of legal textual sources119 of the ancient Near
East120 from the first excavations, transcriptions and translations and onwards, during which
Delitzch in 190 presents presentations of comparisons between the Bible and Babylon, titled “Babel und
Bibel” Malul 1990 8; Larsen 199 96-97). This saw the beginning of a period where scholars, until recently
made comparisons between the Bible and the ancient near East in the study of ancient near Eastern textual
sources. Goetze (1949) classified the study of such sources into different developing phases which afford a
useful insight into the development of the study of these sources. Thereafter scholars still persisted with a
comparison between the ancient near East and the Bible. Cf. for instance Diamond (1933; 1951) regarding his
discussion of the named “primitive law”; Driver & Miles 19 ; 1975) regarding the named Babylonian and
Assyrian Laws published from the 19 0’s; Mendenhall 19 4 and Boecker 1980 . Bottéro 199 explained
that western civilization’s scholars were strongly influenced by Christianity and ellenism. ellenism is the
belief of the perceived “miracle of the Greek civilization” the presumption that ancient Greeks created culture
from nothing: “...many scholars are still more or less consciously indoctrinated by this amazing idea and do not
feel any urge to investigate beyond the superhuman Greeks in the direction of the ‘Barbarians’” (Bottéro
1992:27-28). Regarding Christianity, the Bible is still frequently considered as the “absolute truth” and “oldest
book on earth” written under “inspiration of God”. Bottéro 199 7 states “...many of our contemporaries
undoubtedly still do not think, to search beyond what it tells us about our oldest ancestors of the Israelite branch
– not to mention what it says about the very beginning of time”. Malul (1990:5) states that “ the
disproportionate greater weight given to the Old Testament as a result of this inherent dichotomy between it and
its surrounding world, has led to the creation of erroneous conceptions, and to scholars’ approaching their
subject-manner with tendentiousness and a priori notions.” Malul (1990; 1988) and Jackson (1968; 1983; 1984)
in their comparisons between ancient Mesopotamian sources and the Bible emphasise the importance of making
such comparisons with caution. See also Larsen’s 199 10 –106) similar comments. Contributions that are
more recent are Westbrook (2003), as editor in a two-book volume of ancient Near Eastern law; Sassoon (2001);
and Versteeg (2000).
120
Various studies were undertaken in the field of ancient Near Eastern legal traditions within different
periods (although in some areas they still mainly represent pioneer work). Some valuable contributions by
scholars in the different fields have been made, stemming from the study of a variety of subjects and numerous
scholarly areas, of which a great deal is still to be examined, in terms of available and translated texts in the
ancient Near Eastern legal sources. Wilcke (2000) studies the early Dynastic and Sargonic periods of law.
Steinkeller (1989) investigates sale documents of the Ur III period. In the old Babylonian period the following –
some of many – contributions were made: Schorr (1913) examines old Babylonian civil procedure law, while
Westbrook (a qualified lawyer) undertook some studies in old Babylonian marriage legal tradition. He is also the
editor of a two-volume work of ancient Near Eastern law (which hopefully in years to come will contain further
contributions). Cf. Westbrook (2003). Skaist (1994) examined old Babylonian loan contracts outlining different
loan types and individual formulas. Skaist (1994) investigates whether interest charged was calculated on an
annual basis, or was added to the principal amount of the loan’s duration, and it seems that when the loan was
119
110
the results and conclusions subsequently varied.121
Methodologies developed by some scholars are now synoptically discussed, namely Goetze
(1949); Westbrook (1995); Roth (2001);122 Bottéro (1992); Jackson (1980);123 Malul (1988;
1990; 2002) and Hibbits (1992).
due, the full amount of the interest was then calculated. Westbrook & Jasnow (2001) examine security for debt.
Roth contributed especially to marriage and gender laws and the named law collections. For instance, see Roth
(1999) regarding the priestess, the prostitute and the tavern in relation to LH paragraph 110, and (1995) where
she makes general comparisons between Mesopotamian legal traditions and the law collection of ammu-r pi
(LH). Concerning the texts in the Neo Babylonian period, Roth (1992) makes notes regarding the material
composition of the Neo-Babylonian dowry; earlier Roth (1987) investigates age at marriage and the household in
a study of Neo-Babylonian and Neo-Assyrian forms. Stone & Owen (1991) research certain chosen case studies
of adoption in Old Babylonian Nippur and the Archive of Mannum-mešu-li ur.
121
In the study of present-day law different methodologies are applied, and this may influence the way
certain aspects of the ancient Near Eastern legal traditions are interpretated by ancient Near Eastern scholars, and
ancient legal (jurisprudence) scholars, resulting in different emphases on different aspects of ancient Near
Eastern law traditions. Cf. the approaches by Morrison (1997), Van Reenen (1996), Thomas (1989), Watson
(1978; 1995; 1996). Morrison (1997:2) contends that in the past western jurisprudence was dominated by legal
positivism with “contrasting approaches” deriving from legal realism and natural law. Morrison (1997) looks at
such positivism’s influence on present-day jurisprudence and on law in present-day practice. He considers legal
positivism as a label for a set of related approaches to law, which have dominated western jurisprudence in the
last 150 years (Morrison 1997:4). The mechanism for legal positivism was to recognise law within the question
what is “valid” and what is not. The focus was thus: what is law? (Morrison 1997:3) He maintains that there is
another question, namely, what law “ought” to be. e considers that “Law is not some stable or essential transhistorical phenomenon, but differently constituted empirical phenomena in varying socio-historical locations”
(Morrison 1997:5). Morrison (1997:2) advocates for a more flexible approach, wherein we look at the
awareness of quality, understand different methodologies, and ask the reasons for what law is and why it is
necessary to ask and answer it. He states that this approach is not without difficulties, for a major problem to
resolve is that of contextuality, where we ask the question of what is law, but forget to put it into context. We ask
the question in the absence of its “particular social and historical circumstances”. e opines, “It seems we are
invited to wonder endlessly in an intellectual labyrinth. Soon however we are forced to return to the basic
question. Is law a single phenomenon – or is there a range of different phenomena which are loosely grouped
together under the label ‘law’˹” Morrison 1997
Thomas (1989:279) states: “Moreover, it might emerge that
man [sic], his needs, problems, conflicts have remained virtually the same through history, and that the number
of mechanisms to answer these needs and solve his problems and conflicts is rather limited”. Thomas (1989:279)
investigates the usefulness of legal history for contemporary law, and makes a selection of the following “direct
immediate utility” and “indirect long-term utility”. he said “direct immediate utility is an isolationistic
approach where law is studied in isolation detached from its environment”. On the other hand, there is indirect
long-term utility, which is a “systematic chronological description of past law”, and an “objective” historical
description of a legal topic. Law is an “aspect of life in a society”. A disadvantage of direct utility is that
scholars “only look for what they want to find”, whereas in indirect long term utility scholars attempt to give the
most of the construction of the past (Thomas 1989:280). Not only do legal historians tend to overestimate the
objective truthfulness of their sources, but they have also disregarded their own subjectivity, and pretend to
reproduce the law of the past as it really was (Thomas 1989:282). “Since law is a reflection of society, it cannot
be studied and properly understood in isolation, but must be approached as an integral part of society” homas
1989:277- 78 . We must look at “economic, political, ideological, social and other factors which influenced the
law”, and limited the field of study and place of time (Thomas 1989:278). Van Reenen (1996:39) investigates
comparative legal methodology and points out that various methodological approaches have been formed and
framed the “ambits of the philosophical frameworks” determine “comparative methods or techniques”. He
reminds one of the modern and postmodern trends in the philosophy of science (Van Reenen 1996:40). He
discusses Popper’s critical rationalism Van Reenen 1996 40-41 , Kuhn’s concept of the paradigm Van Reenen
1996:42), Frankfurt Neo-Marxism and Critical Theory (Van Reenen 1996:42), critical philosophy of science
Van Reenen 1996 4 and abermas’s theory of emancipation Van Reenen 1996 44 .
122
Cf. also Roth (1987; 1991-1993; 1995; 1998; 2001).
123
Cf. also Jackson (1968; 1972; 1980).
111
Goetze (1949:117) considers any study of “relationships” fraught with difficulties. Identical
conditions may lead to parallel, but nevertheless independent results. Moreover, in the field
of law, the possibilities for variation are limited, particularly when political and economic
conditions are similar. In such circumstances interdependence can be proved only by very
specific coincidences; general similarities are not enough. He confirms that laws are simply
one aspect of society and must always be understood and studied against its background.
Greater insights are necessary in social and ethnic structures (Goetze 1949:119).
One of the many sources of Old Babylonian law traditions are the named law collections.
Scholars have different opinions of their place and function, and developed different
methodologies to study these cuneiform texts.
In his discussion of the purpose of L , one of a “group” of Old Babylonian law collections,
Bottéro 199
argues that the word “code” is wrongly used. He examines the grammatical
form and style of the sections of LH, and considers it to have a different purpose as a “law
code” Bottéro 199 161 . Doing so, he introduces his scientific treatise theory and refers to
law collections, such as LH, as such treatises (Bottéro 1992:177). Using LH as an example,
he discusses what the aim of this treatise would consequently have been, and regards
Mesopotamian law not as an embodiment of statements, but as a reflection of the spirit of
justice (Bottéro 1992:182).
This is captured in the principles of mīšarum and kittum.
Together these are read with dīnāt mīšarum which comprises just decisions made by the king;
therefore it is his duty to create and uphold justice (Bottéro 1992:182-183). In this theory, he
advances the opinion that LH is not a code; it is a product of a scribal school, intended to
glorify the king with a political character envisioned to uphold justice (Bottéro 1992:183).124
Westbrook (1995) also expresses the view that law collections were scientific theses; however
he speculates that these were practically orientated in assisting the judges/kings in their
rulings by providing different cases. Bottéro (1992) agrees to some extent with Westbrook;
however, he emphasises that the collections mainly comprised of propaganda in favour of the
king.
Roth (2001) focuses on the said case-method; she argues that social categories may exert a
124
Cf. Bottéro (1992) and Westbrook (1990; 2003:14-17; 1995). They place different emphases on how and
why the kings and judges used these scientific theses.
112
direct influence on the interpretation of ancient Mesopotamian documents.125
Roth
(2001:250) disputes methodologies used by Westbrook (2000) and Bottéro (1992):
In response, then, I challenge the assumption of a primacy of
generalizations over individual cases, and assert rather the independence as
well as the independent value of the law collections and the law case.
As an alternative methodology, she recommends the said case-method used in American law,
medical and business schools; where firstly similarities are identified between the case
studies; after which the “rule of law” “inherent” to a first case is examined and made
“applicable” to a second one Roth 001
.
According to Roth (2001:248) thousands of years before the American schools, the
Mesopotamian scribal schools (é-dub-ba-a) used this method, wherein students of the é-dubba-a obtained education, by studying examples from different areas, such as lexical texts,
proverbs, literary compositions, “scientific treatises”, as well as a vast amount of law
literature. The basis of her theory is that legal documents such as contracts and law decisions
furnish a set of circumstances wherein the parties must solve a specific problem (Roth
2001:248).126
Jackson (1980) proposes cognitive analysis, a method also used in psychiatric studies. He
investigates the drafting of legal documents, and considers these in analogy with the cognitive
abilities of a child. Although a universal application of these abilities does not exist, there are
a variety of “sensori-motor and prelogical stages” Jackson 1980
0 .127 The first is at seven
years old, representing the stage of “concrete intellectual acts” Jackson 1980:350); thereafter
at the age of eleven or twelve, that of abstract intellectual acts are reached. These stages
accord the theory, an “evolutionary character”, for they are built on each other (Jackson
125
Roth (1998; 1987) explores social categories in ancient Near Eastern civilizations. She examines the
general principles of the named lex talionis and other sections of the law collections of ammu-r pi (Roth
1995:24-25). In her discussion of social categories, she believes that there are different layers of meanings to
discover within a document, which is considered a “historic artefact” Roth 199 7 .
126
Roth 001
enquires “Is it possible, then, to get beyond ‘the facts’ presented in a Mesopotamian
case and at ‘the law’˹ Indeed, it is possible to infer from some of the more detailed cases (and law provisions)
certain guidelines by which ‘the law’ operates, and certain social and legal norms to which the people of a
particular time and place aspire. But when we look at our cases only in an effort to find ‘the law’, we may miss
the opportunity to find anything else. I suggest here another way of reading cases: as a narrative”.
127
Cf. Jackson 1980 discussion of Piaget’s theory of cognitive development’s four development stages.
The scope of this thesis does not permit for the discussion of these stages in detail, and application to cuneiform
documents and scribal school traditions; as well as criticisms against Piaget’s theory and possible application of
Jackson’s (1980) theories to the scribal school traditions.
113
1980:351). These different stages do not suggest that the drafter of a document was a child,
or experienced an intellectual handicap (Jackson 1980:352). Only in relation to legal drafting
did the drafter “[achieve] his capacity to that particular level”, while there are other areas
where the drafter could possibly be capable of abstract thinking (Jackson 1980:352).
Malul (1988) reflects on symbolism, while Hibbits (1992) examines multi-sensory
communication in his study of ancient Near Eastern sources.128 Malul (1988:20) defines
symbolic acts as follows:
A symbolic act is an act or gesture, which must be performable and
performed, is executed intentionally and solemnly, in an appropriate
context, for a limited span of time, and it must symbolize a legal result
which differs from its manifest physical result.
Hibbits (1992) in his discussion of the said multi-sensory communication, refers to society as
a “performance culture” which serves as a “vehicle for remedying these rather basic
deficiencies in the legal literature”
ibbits 199 88 . Information is distributed by different
mediums of speech (Hibbits 1992:883-4).129
The secret of social survival is memory. Information must be remembered
by the individuals who hear, see, feel, or savor it, so that they can retell it or
recreate it later, and thereby pass it on to others and to the next generation
(Hibbits 1992:951).
The legal acts in performance culture and law tradition is one which “…is not so much said,
sung, gestured, or felt as it is holistically performed”
ibbits 199 94 . Therefore Hibbits
(1992:955) advises that instead of concentrating only on one medium “…we must take care to
consider the totality of verbal and nonverbal information in any given performative legal
transaction”.
The performance of ancient Near Eastern legal traditions (pre-literate societies) is personal
128
Cf. Gruber (1980) who made a study of aspects of non-verbal communication in the ancient Near East,
and focuses especially on the ebrews’ non-communicative forms of emotions of anger, sadness and happiness.
Kruger (1998:141) offers the named non-verbal communication as a non-spoken unwritten medium, which is as
important as the written verbal communication. Cf. Barakat (1969) regarding discussions of gesture systems.
129
[E]very medium implicated becomes a hook from which the thread of memory can hang. Someone might
not immediately remember hearing something, but they might remember seeing or feeling it . . . if several
different media are used to transmit exactly the same message, the power of that message as a whole is
reinforced to the point where the audience may be overwhelmed with sensory input” (Hibbits 1992:883-4).
114
and unlike writing in general; our law cannot exist separate from the drafter. This
performative legal traditions and communication of it “depend on the use and synthesis of
such media as speech, gesture, and touch” and necessitate the “ongoing, live participation of a
human actor”
ibbits 199 9 1 .
According to Malul (1988) and Hibbits (1992), in applying the tenets of legal symbolism and
multi-sensory communication, a holistic approach in the study of ancient near Eastern
performance legal tradition is necessary. Malul (2002:21) observes:
Current scholarship tends to interpret ancient specimens of writing along the
same conceptual lines that it applies, when interpreting modern specimens
of writing, implying that the concept of writing carried in the ancient mind
the same conceptual weight as it is articulated in our modern frame of
reference.
Malul (2002:21) argues that in our “text-orientated” approach in the study of culture, “the
special qualities of our ancient source-material”, which do not fall into the ambit of this
orientation, are now “ignored”.
nthropologists gave these approaches a name
“ethnocentrism” as opposed to “graphocentrism” Malul
001:21).130 Malul (2002:29)
mentions ethnocentrism and its dangers, using an example referring to Singer who pointed out
the generalization in the view that ancient culture, just as in our culture “would be veered in a
few classical and highly esteemed works of literature and philosophy”. Malul comments
humorously that this meant that every learned person would be:
...strolling around in the cities, streets, and alleys with tablets of ‘masterpieces’
under their arms, going to the local library to exchange them for other
‘masterpieces’ to be read at leisure times... They might also have exchanged
such works among themselves and probably discussed, perhaps on Saturday
evenings, gatherings and cultural meetings, the contents of such works and
debated their meanings and message.
Malul (2002) again advocates the holistic approach to the study of cultures and a multi-
130
Hibbits (1992:955) argues that pre-literate or marginally literate societies (e.g. the old Babylonians), have
almost no experience with writing as a communication medium in the same sense and influence as the written
medium of today, and that for them “through media embracing the entire sensory spectrum, they express their
legal meanings in myriad permutations of sound, gesture, touch, and savor. Resisting the temptations of
‘graphocentrism’ on the one hand, and the siren song of orality on the other, we need to reorient our study of preliterate and marginally literate legal expression, to take all these forms of communication into account”.
115
disciplinary approach.131 He refers in his preface to a scholar in molecular biology, who
become a practising Tibetan monk, in order to escape the “extreme specialization and focus
on tiny details” found in western science, and who advocates “the whole picture”-outlook.132
Malul (2002:5) emphasises that the “human senses … are the key to understanding the
epistemology of a certain culture”. In every culture, there are “different configurations of the
human sensorium”. If we are not aware of this in our study of a given culture, there is “a real
danger of imposing our frame of reference on a completely alien subject-matter” Malul
2002:6).
Recent trends in present-day science reflect that of “the scientific world”, and therefore we
“need to look at matters from a holistic, three-dimensional, and dynamic point of view,
applying multi-disciplinary glasses” (Malul 2002:19).
Malul (1990) offers two approaches in the study of ancient Near Eastern sources, namely
historical- and typological comparisons. The former is a method employed where there is a
historical connection of the common tradition between societies (Malul 1990:13).
Typological comparison is applied to societies that are geographically and chronologically
distant, lacking historical connection (Malul 1990:14). The aim of the first approach is to
discover a historical connection between cultures, while the second is a study of the different
Malul (2002) asserts that he devised such an approach and outlook in his book titled “Knowledge, Control
& Sex”.
e “encountered tremendous difficulties”, and he stated that “time and again felt that the project
undertaken may be too pretentious” Malul 00 ix . His book was about the “idea of knowledge” as one of the
three fields which he analysed. This concept of knowledge is the idea of cognitive knowledge and knowing
“which should be central in the study of the interaction between man and his surroundings”. Questions to be
asked are “ ow do we know and perceive the world of phenomena on which we live˹ What are the means or
apparatuses [sic] by which we come to know this world? What phenomena of this world are we actually able to
perceive, and what phenomena are beyond our perception, and what are the factors dictating this differentiation?
Are the perceptions and knowledge of a certain person the same as those to another person of the same social or
cultural group˹ Is a certain social or cultural group’s epistemic load comparable or common to that of another
social or cultural group? Do people of different social and cultural groups perceive the same world of
phenomena [sic] similarly, or does each group see matters from its own idiosyncratic angle? Is there finally, any
such ‘world of phenomena’ out there waiting to be perceived and apprehended, even in different ways, by
different individuals, or different social and cultural groups, or perhaps all is the product of our mind, or at least
of the interaction between our sensorial apparatus and the outside world˹” Malul 00 4 .
132
Morrison (1997); Van Reenen (1996); Thomas (1989) and Watson (1996) in their studies of law, acclaim
a universal approach. They warn against an isolationist one which ignores the rest of society’s aspects. hese
scholars tend to agree that there is a named universal or collective conscience towards the application of
principles to law. Watson (1996) goes so far as to explain that the named transplantation of law is not so much a
concrete decision of lawmakers, but more a natural or incidental and even a universal collective conscience of
humans towards law. The outlook of theoreticians of law is in sharp contrast with that of practitioners, where
lawyers and advocates in their daily dealings with the law tend to isolate law, by focusing on the principles and
look out for authoritative sources, that indubitably suit their clients’ needs.
131
116
forms of society, to create a theoretical model for the study of universal human social
phenomena (Malul 1990:15). Malul (1990:17) explains:
The biblical and/or ancient Near Eastern comparative scholar applying the
typological approach uses evidence from one culture for illuminating
another culture and understanding it better, or for demonstrating certain
institutions and underlining certain beliefs and principles.
These methodologies each propose different ways to investigate ancient Near Eastern textual
sources. At the end, it is the scholar’s prerogative to decide which methodology is sound and
suitable enough to provide answers to a thesis statement and which is appropriate for different
techniques applicable in the study of chosen textual sources, keeping Malul’s (1990:160)
advice in mind:
Every scholar, adhering closely to clear methodological criteria, may put the
comparative method and also the results of other scholars’ comparative
studies to objective tests, without his hands becoming entangled in
apologetic and pseudorthdox tendencies which have no place in scientific
research.
In this thesis, Malul’s 1990 1
typological comparison approach is used by employing a
typological comparison of city-state versus city-state.133 The city-states’ philosophy and
styles of management of the division of the communally property, as well as the influences of
scribal school traditions is investigated and compared regarding the agreements’
implementation in society.
his also includes the agreement’s consequences for the family
members involved in the agreement, including the family members’ own approach to the
agreement.
5.3 PRACTICAL APPLICATION OF A FAMILY DIVISION AGREEMENT IN A
DECEASED ESTATE
In the best of times, as regards communally-shared property, peace in a family (or partnership
of co-ownership) is maintained. As is frequently the case in life, matters are not always
simplistic; because of the nature of co-ownership in undivided shares, impractical and/or
133
In the thesis the analysis-method is developed as later in this chapter outlined and its components
explained. The analysis-method is a content analysis of the chosen forty-six agreements in each city-state of
Larsa, Nippur and Sippar. After analysing the division agreements on the hand of this method, the typological
comparison followed.
117
undesirable situations may compel the need for its dissolution.
The dissolution of co-
ownership held in communally inherited asset/s received from a family member’s deceased
estate, is affected by means of a family deceased division agreement. See schematic format
(infra) explaining the evolutionary, different stages to reach the final stage of the conclusion
of such an agreement.
Figure 11 Outline of the evolutionary process of the family deceased division agreement
118
Stage one: In a kinship group, where the owner of an estate makes bequests to his or her
beneficiaries, on his or her death more than one beneficiary is appointed, in equal shares, over
one or more assets in the deceased estate. A defined bequeathed fraction of an estate is left to
each chosen beneficiary. As a practical outcome, the beneficiary becomes a co-beneficiary in
undivided shares of the bequeathed property, in proportion to his or her share. These
beneficiaries are closely related in a family kinship relationship, by either biological
relationship or a contractual relationship by means of an adoption.
Stage two: The co-beneficiaries now become co-owners and as “partners”, they manage,
enjoy and use co-ownership of the property. At the best of times, peace is maintained;
however, at the worst of times, due to various factors, the co-beneficiaries may decide it is
essential to discontinue their co-ownership.
Stage three: In this stage, as a consequence of possible conflicts or uneasiness as regards the
sharing in the communally-shared assets, the co-owners decide to divide some or all of the
originally received inherited assets, and by so doing alter co-ownership to sole ownership,
regarding some or all of the communally-shared assets. This is more easily said than done,
for the co-owners who now become contractual parties must consensually agree to divide the
communally held property, which possibly has monetary and/or sentimental value. There are
possible practical problems owing to the agricultural and architectural factors. Keeping all
these implications in mind, on the final conclusion of the agreement, each contractual party
will forfeit ownership of a certain asset or assets in order to gain sole ownership of another
asset and/or assets. In other words, some “trading” of the assets has taken place.
Lengthy negotiations generally ensue whereby these contractual parties, still in kinship
relation, consensually agree to divide the assets.
Factors that may influence the outcome of the division are unique family circumstances, the
specific nature of the assets; and legal traditions and -practices. The parties will use different
mechanisms to divide, by means of a sale, donation or exchange, the communally-shared
asset/s, wherein they consensually trade their rights as co-owners in the communally
asset/s.134
In contemporary South frican law the division agreement, named the “redistribution” agreement, can
utilise the finalisation of the administration of a deceased estate. The mechanisms used in the old Babylonian
134
119
The family deceased division agreement is a complex legal notion encompassing many
components, mechanisms and details that sometimes prima facie may appear simple, whereas
in a lengthy agreement containing many particulars, the intrinsic components and mechanisms
can unfortunately escape or elude us.135 A specific methodology is needed to capture this
complex legal notion.
5.4 MOTIVATION FOR AN ANALYSIS-MODEL
An analysis-model was designed to simplify and overcome problems, with the aim of
identifying the categories and sub-categories of certain prerequisite requirements, legal
practices and scribal school practices, as well as the intrinsic details of the agreement. The
important aims of the developed analysis-model are the following:
The division agreement is a complex legal notion: potentially, by choice between
beneficiaries in one agreement, at least one or some of all three legal constructions can occur,
namely a sale, exchange and donation. These different constructions reflect the uniqueness of
the solutions of each agreement and serve to a certain extent as indicators of the special
circumstances of each family involved.
These aspects and differences can better be
identified, if basic requirements for each type of division agreement are outlined through an
analysis-model. A category for these basic requirements are created, named the essential
elements.
Keeping in mind that the details in the division agreements such as different assets awarded to
different contractual parties under certain conditions, varying solutions and special conditions,
unique to a division agreement, in turn may reflect the legal practices and scribal traditions of
family deceased division agreement are the same as those in the “redistribution” agreement in South frica. In a
South African law report, the learned judge Dowling referred to a sale, donation and exchange as “vehicles of
redistribution”, and said that “some sort of reshuffle of assets” in the estate took place with a redistribution
agreement (Klerck v Registrar of Deeds 1950 1 SA 626 T 630-631). The scope of the thesis does not permit a
discussion regarding the possible reception or transmission of a division agreement from the ancient Near East to
Roman and Roman Dutch law, and then South African law. However, this is still an open question which could
be investigated in a further study. See Appendix K (in volume 2), regarding the development of the
“redistribution” agreement in the minds of the majority of contemporary South African jurists.
135
The following definition of an old Babylonian division agreement captures the essence of the family
deceased division agreement. An old Babylonian family deceased division agreement is a consensual family
agreement between close members in ‘n kinship group, wherein they consensual agree to the dissolution of
co-ownership to sole-ownership, regarding the estate owner’s estate assets; and through means of a sale
(“bringing in” of assets), donation and exchange, devolve the bequeathed assets among the cobeneficiaries/owners, who as a result thereof are contractual parties; and with the conclusion of the agreement
sole-owners of the agreed portion or assets of the once held communally-shared estate assets.
120
a city-state. If one only reads each agreement without systematically outlining and dissecting
the different components ˗ the dissimilar legal practices, choices made by the contractual
parties and scribal school practices in each agreement ˗ may elude one.
In addition, in the division agreements from Larsa, Nippur and Sippar, different legal
practices and scribal traditions exist in each city-state and to a lesser instance between timeperiods, which makes a comparison study difficult. There are in one city-state alone various
sequences of legal practices and aspects of a division agreement, which can only be identified
by analysing and categorising the smaller details of each agreement.
Therefore, two categories were created, termed the natural and incidental elements.
In the first, the natural elements reflect the legal practices, which are the choices of the
contractual parties pertaining the terms and conditions of the agreement.
In the other, the incidental elements reflect the scribe’s style and scribal traditions, as well
as the quality of the tablet itself being studied.
The methodology can also be used with other Old Babylonian agreements such as sale or
adoption agreements, to identify and outline what elements are to be classified into different
groups, with the overall understanding that there are certain essential requirements and
elements present to qualify as a particular agreement. Within this framework, other aspects of
a legal notion can be systematically grouped, such as the identification of the elements and
terms chosen by the contractual parties, and governed by legal traditions; as well as a specific
scribal tradition and scribal writing styles.
Generally, the categorising of parts and aspects of a family deceased division agreement in an
analysis-model, assists in a more thoroughly comparative typological study, of forty six
family deceased division agreements within the city-states of Old Babylonia Larsa, Nippur
and Sippar.
121
5.5 ANALYSIS-MODEL OF A DIVISION AGREEMENT
5.5.1 Introduction
Old Babylonian society was predominantly an oral one.136 A distinction is made between oral
and recorded division agreements, keeping in mind that writing and recording did not have the
same value as today.137
We are limited to just a few cuneiform division agreement texts, in which we can prima facie
recognise beneficiaries in their different status positions in the kinship group. The
beneficiaries, as co-owners orally agreed to a division of a late family benefactor’s assets,
wholly or partly, in order to secure sole ownership regarding certain communally inherited
assets. The capturing of the agreement on a clay tablet is only a recording, which is threedimensional138 in reality, and “snapshots” of an oral agreement, where a scribe has chosen to
decide which details, may or may not be included in the recording.
For a holistic overview of the schematic ordering of these agreements’ contents, see infra, the
table outline of the classification of the details and elements of a family deceased division
agreement.
136
Malul (2002:47) reflects on the function of the written word in the ancient Near East. Malul (2002:46)
contended that it does not have the same meaning and definition for us; for, there it was perceived as a magical
object. The seals, for instance, were an object and not an “object outside themselves”. Seals also have a magical
effect Malul 00 47 . e argues that the problem occurs where “[ ]hinking in the framework of a writing
mind-set we apply our set of codes and cues and sift the ancient evidence through it, thus ultimately seeing our
own reflection rather that the ancient and alien culture” Malul 00
.
137
Malul 00 6 observes that today “language has become a conceptual abstract tool for articulating
thought, and in certain contexts the call for extreme objectivity seem to have drained it of its performance
qualities. In short, language has become a medium of reflection rather than a reflection of action” Malul
2002:36).
138
Cf. discussion by Hameeuw & Willems (2011). They opine that the cuneiform tablets are
three-dimensional objects on which scribes write on all six sides (Hameeu & Willems 2011:165).
122
Table 5 Outline of classification of elements of family deceased division agreement
Division agreement of a deceased family member’s estate
Oral division agreement reflected in recording on Recorded division agreement
tablet
Essential
elements
(Basic
requirements /
“to be a
house”
Natural elements
Incidental elements
(Legal tradition practices/
“type of structure of house”
(Written formalities of the agreements &
qualities of the texts/“decorations of
house”
Written formalities of agreements
E 1 Family
Nat 1 Adoption/support
I 1 Names of contractual parties, rank
Nat 2 Bringing in
I 2 Birth order of brothers
Nat 3 Division by lots/in good will
I 3 Description of awards/assets
Nat 4 Heart is satisfied
I 4 Special legal terms
E 5 Raison
Nat 5 “as much as there is”/
I 5 Oath clause (king/god)
d’êtr˹
“completely divided”/“from straw
I 6 Witnesses names, rank/family
to gold”
standing
Nat 6 No claim
Qualities of texts
connection:
beneficiaries
E 2 Deceased
Estate owner
E 3 Estate
assets
E 4 Mutual
consent
Nat 7 Oath in temple/oath
Nat 8 Preference portion
I 7 Language
Nat 9 Shares: equal clause
I 8 Location
Nat 10 Trust (trustee)
I 9 ablet’s condition
Nat 11 Usufruct
I 10 Number of copies
Nat 12 Witnesses
I 11 Date formula
I 12 Seals impressions
I 13 Rhythm sequence/special style
reflecting scribal school traditions
123
With the essential division agreement, there exist essential elements or basic requirements, as
mentioned. Natural elements are identified which are chosen by the contractual parties
through tradition and practice, orally-concluded and recorded in writing. This reflects the
social and unique practices of contractual parties who concluded this agreement in the given
period and city-states.
The incidental elements encompass the uniqueness of different scribal practices. It is possible
that some practices could also occur with oral division agreements such as the presence of
witnesses, and an oath-taking procedure, although the majority of the incidental elements
mentioned are mainly classified as written division agreements and reflecting scribal school
traditions in a said city-state.
5.5.2 Essential elements
The contractual parties choose to create certain obligations: every kind of contract contains
stereotyped or typical elements that establish it as being a certain type. These are called the
essential elements of the contract.139
The said elements present to classify an agreement/contract as a division agreement are the
following: family connection of beneficiaries, deceased estate owner, estate assets, mutual
consent and raison d’êtr˹ of the agreement.
These elements are synoptically discussed as follows:
5.5.2.1 E1 Family connection of beneficiaries
The beneficiaries or co-owners are in a familial connection with each other and are the
appointed beneficiaries of the estate owner’s assets.140
The contractual parties were the
intestate (family members) or testate (testamentary appointed) beneficiaries of the deceased
Essentialia negotii is Latin for “essential aspects” or “basic terms” and is a legal term used in contracts at
present. It denotes the minimum contents of a contract in order for it to be held effective and legally binding. In
this regard, the phrase the “essential elements” refers to the specific elements needed to qualify the agreement as
a division agreement in order to prevent confusion with other agreements that appear prima facie also to be a
division agreement, but have different results and mechanisms in place. Cf. De Wet en van Wyk (1992:129)
regarding South African discussion of essential elements of a contract.
140
See Appendix I (in volume 2) regarding a holistic outline of the contractual parties reflecting the amount
of brothers, sisters, nephews/uncles and other relationships, in all forty six agreements, specifically in the three
city-states of Larsa, Nippur and Sippar.
139
124
estate owner’s estate.
hese contractual parties are in general brothers,141 under certain
circumstances a sister or sisters, who is/are usually a priestess or priestesses,142 while in a few
texts they are nephews and uncles; in one text there were a stepfather who adopted his
stepdaughter.143
5.5.2.2 E 2 Deceased estate owner
The deceased estate owner144 is most frequently the father,145 sometimes the mother146 or
both parents.147 he deceased estate owner’s relation to beneficiaries is at least that of kinship.
The family assets are bequeathed to family members, either biological or adoptive.
5.5.2.3 E 3 Estate Assets
The deceased estate owner left an estate to his or her beneficiaries consisting of different
assets, which are in most cases immovable property. The agreement deals fully or partly with
these assets. The Old Babylonian division agreement is a recording of the agreement but
unfortunately, in certain texts it is mentioned only that the “estate” is divided among the
beneficiaries.
In most of the texts discussed in Part B and C, some details of the oral agreement are
reflected. However in relation to the present-day division agreement and for purposes of
studying the Old Babylonian agreement, many details and background information regarding
the negotiations, circumstances which led to the ancient Babylonian agreement and its finer
141
Brothers as the only contractual parties are mentioned as follows: in 10 texts of Larsa (6 texts): L2, L3,
L4, L5, L6, L10; in 10 texts of Nippur 6 texts N1, N , N6, N7, N8, N10 and 1 texts in Sippar’s 6 S1, S ,
S8, S11, S12, S13, S14, S18, S22, S23, S24, S26.
142
Sister/s who is/are one or more of the contractual parties are found as follows: in 10 texts of Larsa (three
texts): L1, L7, L8; in ten texts of Nippur none (except for a daughter as an adoptee and natural daughter) N4 and
in Sippar’s 6 texts 11 texts S , S , S6, S7, S9, S10, S1 , S16, S17, S19, S 0.
143
Nephews and or uncles who comprise one or more of the contractual parties are mentioned as follows: in
10 texts of Larsa one text L9; in 10 texts of Nippur three texts N , N , N9; in Sippar’s 6 texts three texts
S4, S21, S25.
144
See Appendix I (in volume 2) regarding a holistic outline of the deceased estate owner/s as either the
father or mother or father and mother, which appear in the forty-six agreements in the city-states of Larsa,
Nippur and Sippar.
145
A deceased father who is the only estate owner is alluded to: in ten texts from Larsa (eight): L1, L2, L3,
L4, L , L6, L9, L10; in 10 from Nippur 9 texts N1, N , N , N , N6, N7, N8, N9, N10 and in Sippar’s 6 texts
(21 texts S1, S2, S4, S5, S8, S9, S11, S12, S13, S14, S15, S16, S18, S19 S20, S21, S22, S23, S24, S25, S26.
146
A deceased mother who is the only estate owner is mentioned: in none of the ten texts from Larsa; in 10
texts of Nippur 1 text N4 and in Sippar’s 6 texts 4 texts S , S6, S7, S10.
147
A deceased father and a deceased mother who are estate owners are to be found: in 10 texts from Larsa (2
texts L8 & L9; in none of the 10 texts of Nippur and one in Sippar’s 6 texts S17.
125
details are omitted on the written clay record. It is also unknown whether the whole of the
estate was divided, or only certain assets where the parties were experiencing difficulties with
co-ownership. In most of the Old Babylonian Larsa, Nippur and Sippar texts different terms
implying the whole of the estate, for example “as much as there is”, “the division is finished”
and “from straw to gold”, could lead to the interpretation that all of the communally held
inheritance property was divided between the beneficiaries.148
In a few instances where awarded estate assets are described, a distinction can be made
between estate assets and money, or goods brought in.149 Estate assets are the assets of the
benefactor, the estate owner. The “bringing in” (sale) of money or goods is an estate
administration tool, for only the estate assets of the benefactor are transferred to the rightful
beneficiaries of the estate. Thus, the “bringing in” of property or money, entails the property
of someone other than the estate owner, with the only aim being to allow the beneficiaries to
reach mutual consensus in an equal division of agreed assets, and therefore to equate the
assets awarded to all the beneficiaries to reach a more or less equal distribution of soleownership.
5.5.2.4 E 4 Mutual Consent
The beneficiaries mutually agree to the terms through symbolic expressions, oaths, and most
times, in the presence of witnesses in order to emphasise the seriousness and binding
consequences of the terms of the agreement. Different terms are evident in Larsa, Sippar and
Nippur.150
5.5.2.5 E 5 Raison d’êtr˹
In the Old Babylonian period, there are three main methods to dissolve co-ownership in the
common property; namely an a typical sale, donation and exchange.151 To a certain extent a
148
This is discussed under the natural elements Nat 2.
The named “bringing in” is classified as a natural element. See Nat 1.
150
See discussion of these terms in Chapter 6 – Terms.
151
The division agreement probably took place through argumentation, wherein each party would attempt to
maximize her or his own benefit. When a division agreement is concluded between beneficiaries there exists a
conflict of interest among the beneficiaries, or there are burdensome circumstances afflicted by law traditions
such as the first-born share. However, Leemans (1954:15-18) argues that in old Babylonian families they did not
act as an economic unit in the sense of a “organizational framework”, and each family member acted by contract
in accordance with his free will and was not subjected to obligations. This is a radical statement deriving from
an analysis of a few division agreements, without taking into account the greater corpus of Babylonian legal
149
126
modification of the original instructions or will of the benefactor occurs, where instead of a
proportionate share in an asset or assets, the beneficiaries, now the co-owners, agree to
transfer asset/assets only to one beneficiary. Some reshuffling of assets have taken place. In
other words by agreement, through a typical sale, donation or exchange, the co-owners concur
that certain beneficiaries alienate their share in the common property, where one of the
beneficiaries acquires all the shares of the inheritance property and enjoys the fruits of sole
ownership of asset/assets.152
How and when co-ownership is dissolved, necessitates innovative solutions. Originality lies
in the problem-solving of the impractical and undesirable circumstances, which differ in each
given family situation. Also, to be taken in account by the contractual parties wishing to
reach a mutual agreement, are the special nature of the assets in their re-allocation, bringing in
of goods or cash,153 and possible equalising of the division of the assets.154
5.5.3 Natural elements of an oral division agreement recorded in a written agreement
The said natural elements of the division contract are natural consequences deriving from a
division agreement through practice and law. They are not easily noticeable and accessible
due to the overwhelming application of oral, rather than written laws and traditions in Old
Babylonia. However, the division agreements do seem to operate in a historical-cultural
framework. Owing to some consequences deriving from contractual agreements in general,
such elements can occur and are part of contractual terms that are expressly or tacitly included
documents. The rationale of his viewpoint lies in the statement that no trace of liabilities occurs between
members in the fulfilment of customs such as the first-born-share (Leemans 1954:18). Notwithstanding,
Leemans (1954:16) mentions the well-known case of the Ur III widow published by Owen, wherein she
received her right to inheritance after her brother in-law “unlawfully” took it away from her, and cf. wen’s
(1980) contribution to the text. In Leemans’ 19 4:22) conclusion he refers to aspects of such a case as simply
“reasons of justice”.
152
See discussion by Claassens (2004-2005) regarding the present-day South African division
(redistribution) agreements.
153
See section 38 of the named law collections of Ešnunna, wherein Leemans (1954) translates it as follows:
“If, in a group of brothers, one will sell his share, and his brother wants to buy it, he the latter shall fully pay
the average of (what) another (pays)”. Leemans (1954:21) provides the interpretation that this was a transaction
between brothers, where a brother wants to sell his share because it is “not big enough for living in” also, on its
own the unit will not “yield a reasonable price”. he “law” “rectifies” this “injustice” and now an average price
must be paid. Roth 199 6 translates this as “If, in a partnership, one intends to sell his share and his partner
wishes to buy, he shall match any outside offer”. Leemans (1954:16) did not consider the possibility that coownership may be problematic. It seems as if he contended that with a communally-shared inheritance, where
the beneficiaries have their say as regarding their own share, and can lease it out without the consent of the other
co-owners (Leemans 1954:16).
154
It is an open question whether the change of ownership in old Babylonian agreements was done by the
same sentiments of present-day western societies, which tend to be capitalistic and which are centred on gaining
a bargain, as well as on competition.
127
by co-owners. Some of the terms are similar and others differ in the three city-states, as
discussed later in the thesis.155
The natural elements comprising the choices from law and practice in Old Babylonian Larsa,
Nippur and Sippar are identified as follows: Nat 1 adoption/support, Nat 2 bringing in/equal
shares, Nat 3 division by lots/in good will, Nat 4 heart is satisfied, Nat 5 as much as there
is/completely divided/from straw to gold, Nat 6 no claim, Nat 7 oath in temple/oath, Nat 8
preference portion, Nat 9 sanction clause, Nat 10 trust (trustee), Nat 11 usufruct, Nat 12
witnesses.
5.5.3.1 Nat 1 adoption/support - clause
This element in the forty-six texts occurs only in Nippur, N4. The adoption clause structure is
included as a natural element of a division agreement due to the special structure of the
specific agreement N4. Adoption156 agreements in Old Babylonia do contain division clauses
although the motivation of the agreement is not entirely the same as with a family deceased
division agreement, namely only the change of co-ownership to sole-ownership.
5.5.3.2 Nat 2 bringing in - clause
One of the mechanisms for contractual parties, to implement a division of communally held
assets, is by a sale, wherein one of the parties brings in money, or in other words “buys” an
asset, of which he or she becomes sole owner.157 These “bringing in” or sale of an asset, can
include something of monetary value: such as silver; or a physical asset: such as a slave or
part of a house. The receiver party uses his or her personal asset/s, money or goods to
“purchase” a communally held asset.158
5.5.3.3 Nat 3 division by lots/in good will - clause
In some of the agreements, especially in Nippur and Larsa, the contractual parties plot out
See the comparisons’ chapters, Chapter 7 and 8.
Cf. Obermark (1992) and Stone & Owen (1991) who discuss various old Babylonian adoption agreements
and quasi-adoption contracts.
157
See at Larsa L4, L6, L7; Nippur N1-N6 and N8 & N9, and Sippar S17.
158
The búr clause states that one contractual party will pay equally to his brother/s. In Sjöberg
(1984:191,193-194) bur2 as a verb under the heading E number 4 denotes “to pay in exchange; to compensate”.
In the old Babylonian period these refer to “ B exchange and partition documents” Sjöberg 1984 19 .
155
156
128
different sections of the communally held assets, and by agreement draw or cast lots,
distributing by this means the divided awarded assets of sole ownership.159
5.5.3.4 Nat 4 heart is satisfied - clause
In some agreements from Sippar, the parties will state that their hearts are satisfied, reflecting
the symbolism, and non-verbal communication in Old Babylonian legal traditions.160 This
term is discussed in Chapter 6 (Terms).
5.5.3.5 Nat 5 as much as there is/completely divided/from straw to gold - clause
These terms reflect the whole of the communally held inherited assets, which are divided
among co-beneficiaries, who as contractual parties agree to the total division of the assets. In
Larsa,161 but mainly in Sippar,162 different terms are used to reflect the division of the total
estate. However, the mechanism of the division of the total estate stay the same. In other
words the division entails the division of all of the inheritance assets received from the family
benefactor’s estate. The co-beneficiaries as co-owners, had to share their co-ownership, but at
a particular stage decided by consensual agreement to divide all of the communally held
assets into portions of sole-ownership. These terms are more comprehensively discussed in
Chapter 6 (Terms).
5.5.3.6 Nat 6 no claim - clause
This term is one of the more frequently represented terms, and reflects the only kind of
enforceable term in the family deceased division contract. 163 Thus in the majority of the texts
we find that the contractual parties, who are also family members, confirm that they will not
159
See Larsa L5, L6, L8, L10; Nippur N1, N2, N4, N5, N7, N8, N9, N10 and Sippar S26. See also
discussion by Kitz (2000) regarding division by lots in the Book of Joshua.
160
See Sippar S1, S3, S5, S7, S8, S23.
161
See Larsa L2, L4, L7, L10.
162
Sippar S1-S9, S11-14, S16-20, S22-25.
163
In Tell Harmal only two texts were found containing a sanctions clause. Ellis (1974:136-140) translates
and briefly discusses discrepancies and differences in this agreement as part of her discussion of five texts, of
which this one is shown as “ ext B”. It was a division agreement in the reign of Ibalpiel II year 10, between
Ipiq-Amurru and Ana-ṣamaš-bala i. In line 19 the contractual parties stated “should a claimant arise, he shall
pay minas of silver” ma-na kù-babbar ì-lal-e). The other case is a text also from Tell Harmal where Ellis
(1974:140-142) translates and briefly discusses discrepancies and differences of this agreement as part of her
discussion of five texts, of which this one is shown as “ ext D”. It is a division agreement between Nannamansum, Warhum-magir and Imgil-Sin. In Line 19 (4 ma-na kù-babbar ì-lal-e) – “Should a claimant raise a
claim, he will pay 4 minas of silver”.
129
lodge a complaint in the future against another. In Chapter 6 (Terms), the term is
comprehensively discussed.
5.5.3.7 Nat 7 oath in temple/oath - clause
References to oaths do occur in the majority of the texts, normally naming a god and/or king,
and sometimes in Sippar, on oath naming the city.
Apart from the normal oath, which the contractual parties swear to, there are additional
provisions in three Sippar agreements, showing a symbolic multi-sensory act where
contractual parties actively involved themselves, to emphasise and conclude the division
agreement.164
5.5.3.8 Nat 8 preference portion - clause
Concerning this natural element, the contractual parties as co-owners of the inherited
communally-shared properties, consensually agree that their brother receives, as a preferential
share, more than they do, and after this portion is allocated to him, the rest of the
communally-shared property decided upon is plotted out in portions, whereby each received
sole ownership.165 In Chapter 6 (Terms), the term is comprehensively discussed.
5.5.3.9 Nat 9 shares equal - clause
This natural element shows that the contractual parties mutually agree to divide the
communally-shared assets into equal parts. Usually this is accompanied by the provision that
the portion is divided by a casting of lots.166 This term is discussed in Chapter 6 (Terms).
5.5.3.10 Nat 10 trust (trustee) - clause
A clause regarding the trustee can be found in Sippar text S25. The contractual parties agree
regarding certain properties, that they will administer these together; on closer inspection, the
164
For instance, see in this regard Sippar texts, namely S5, S25 and S26.
Normally accompanied with the term gišbanšur zà-gu-la: a table zaggula (some scholars translate it as
a first-born share or preference share or primogeniture rule). See Nippur N1, N2, N6, N8, N9 and N10, and in
Larsa one text: L10.
166
See Larsa L3, L6, L7, L8, L9, Nippur and Sippar.
165
130
conclusion can be reached that this is a trustee-construction.167 This term is discussed in
Chapter 6 (Terms).
5.5.3.11 Nat 11 usufruct - clause
This natural element occurs in the Sippar texts.168 In the text, the rights and duties of the
usufructuary and bare dominium owner must be interpreted. Usually after some interpretation
of the context of the text, the usufructuary’s rights to use and enjoy the profits and rights, as
well as conditions are evident.169 In most cases, a usufruct is established by the provision that
the bare dominium owners, usually the brothers or son of the usufructuary, have the
obligation to look after the female family member (usufructuary), regarding some or all of the
assets. In Sippar, the usufruct is used to provide a family member, usually a female, with
some food and clothes. This places an extra burden financially and personally on such an
owner. By practical implication, the bare dominium owners not only have to maintain the
property, they must also make it sufficiently profitable for themselves, as well as for
remunerating the usufructuary in accordance with the agreement. In most agreements, there is
a provision that if the bare dominium owners forsake their duty, the usufructuary can appoint
someone else to look after the property. In such a case it seems that the brothers are owners,
subject to the condition that they must support the usufructuary in their capacity as bare
dominium owners; however if they neglect this duty they forfeit their ownership.
5.5.3.12 Nat 12 witnesses - clause
In almost all of the forty-six division agreement texts, a witnesses clause is present. If this is
not the case, it is due to a damaged tablet. Witnesses in these recordings together with the
parties, testify to the details of the agreement (Veenhof 2003:147). Their appearance, and
names, were of the utmost importance, because if a dispute occurs, these witnesses must
testify to the details. Thus, their function is nonetheless much wider than that of attestation.
They are actively involved in the application of the performance legal traditions in the
division of the assets into sole ownership.
167
See S25: The devices of the father's house, which (yet) emerge, belong to them together. The fief of the
father's house they will administer together.
168
See Sippar S5, S17 and S19.
169
See discussion of the texts in Chapter 6 (Terms).
131
5.5.4 Incidental elements in a written agreement170
The uniqueness of different scribal practices is evident in the written division agreement;
however parties can choose to include these practices in the contract, and these practices do
not form part of the basic requirements to classify a contract as a family deceased division
agreement.
The written formalities of a recorded division agreement are not a prerequisite in this respect.
A recorded agreement in the Old Babylonian period does not have the same value as the oral
agreement, which is also, why witnesses are present.
Documentary evidence was not
necessary, for there was the performance of the oral agreement between the contractual
parties and witnesses, to corroborate the details of the oral agreement. In most cases in the
recorded agreement, the description is not precise, and sometimes there is only a synoptic
reference to household goods, field, house, and etcetera. In a few instances, there are detailed
descriptions of the slaves and the houses, in situ.171
Most times the services of a scribe were obtained, although in a few texts one of the
contractual parties wrote down, or summarised the orally stated consensual agreement. In the
latter cases, the information and structure of the written agreement differs from the practices
of the different scribal schools. In the case of an individual, not part of a formal scribal
school, the context of the written agreement was more direct and informal.
Thus, incidental elements are aspects of the written formalities and qualities of division
agreements recorded by scribal school practices influenced by region, language differences,
social, economic and architectural conditions.
Incidental elements may be categorised into written formalities of the agreements and the
qualities of the texts. The outline is as follows:
Under written formalities, the following aspects are investigated, namely: names of
contractual parties, birth order, and description of assets (thorough description, value), special
legal terms, sanction clause (type), oath clause (regarding specific king/god) and witnesses
Abbreviated as “I” in numerical sequence of equal value to one another.
In present-day law practices, the drafter’s painstakingly noting down the description of the assets and this
have an evidential value for each agreement.
170
171
132
(regarding names, rank/family standing).
As regards to the recorded division texts, the following qualities were emphasized: language,
location of text, tablet’s condition, copies, date formula, impressions of seals and the rhythmic
sequence/special style reflecting a scribal school traditions within a certain city-state.
5.5.4.1 Written formalities of division agreements
(i) I 1 Names of Contractual Parties, rank
In the written agreement, normally the names of the parties, their relationship with each other
and their standing within their family, for example son or daughter of x, are stated. The
names may suggest some insight as to whether they were Semitic, Sumerian and Akkadian. In
the Nippur texts, which were predominately written in Sumerian, the names of the contractual
parties and witnesses were Semitic.
(ii)
I 2 Birth order of brothers
Sometimes the ranking order in the family was given. In most of the texts this occurs for a
reason, for instance in the preference-share clause, where the oldest son received a
preferential portion of the deceased parent’s estate; although sometimes, while there was a
preferential share, the ranking was not given.
(iii)
I 3 Description of assets: thorough description, value
In certain texts in the city-states of Nippur especially, as well as some in Sippar and Larsa,
the property was described in detail. In most of the texts, only the more valuable items are
mentioned such as immovable property, and slaves.
In the Sippar texts, the majority of the estates were fully divided, due to the typical term,
“from straw to gold”; and in Larsa and Nippur, “as much as there is” and the “division is
finished”, which may reflect a total division of the whole of the communally held estate.
133
Weights172 or size173 formed part of Mesopotamian economic transactions.174 The minas of
shekels were “weight-metrological terms” (Powell 1996:226).175 Powell (1996:226) argues
that there was no evidence in cuneiform texts of “symbolic or representational monies”.176 In
some of the division texts, the amount of shekels is given with the size of assets. However,
silver money played a less important role than agriculture productivity (Renger 2007:195).
Other objects and substances included cows, sheep, asses, slaves, household utensils and any
corporeal objects. In the division agreements, these commodities were used as a “bringing in”
of goods to equalize the value.177
(iv)
I 4 Special legal terms178
Certain terminologies or phrases are present, although they more or less form part of the
natural elements and written requirements of the agreement. Particular phrases are unique to
the agreement, and therefore make it easier for a reader of cuneiform texts to identify the
agreement from other texts, while regional differences occur. In some of the written
agreements, we come across these special practices of symbolic gestures. These are common
among other agreements, as well as social-, economic-, and business situations and
transactions. Unfortunately, we can only find some glimpses of these practices in the written
sources. With each text, these special terminology and phrases are mentioned. This
“Coins” ─ monetary items such as minas and shekels.
Grain.
174
Cf. Renger (2007:187-197) regarding a general outline of the economy of ancient Mesopotamia. The
ancient Mesopotamian economy was based on agriculture together with animal husbandry. In addition, the
manufacturing and production of crafted goods were secondary important (Renger 2007:187).
175
According to Powell (1996:226) old Mesopotamian economic transactions were all about weighing and
measuring (Powell 1996:226).
176
Powell (1996) believes that the “substance-oriented character of the monetary system” called for the
“remarkable long-term stability of prices in ncient Mesopotamia”. ther factors also caused this stability. This
“fundamentally hierarchical” society resisted change, and was “essentially hostile to innovation”. Furthermore,
most people were poor, and owing to cheap labour, received low wages which caused prices to stabilise. There
were other materials which functioned as money that were arranged in order of value such as barley, lead,
copper/bronze, tin, silver and gold (Powell 1996:227). Importantly, money and goods were not part of the
monetary system. The preference for what was used depended on such settings as time and place; for example
grain displays greater “value fluctuations” ─ due to seasonal changes, as well as the agricultural economy and its
needs. Barley was more “cheap, local money”. As regards silver, both parties were in the possession of weights
and balances (Powell 1996:229). Powell noted the absence of specifications of quality (Powell 1996:230). It
seems that quality was probably difficult to prove; however he believed the parties knew how to distinguish it,
but did not bother to write this down, for it was maybe too obvious (Powell 1996:230-234).
177
According to Powell (1996:228), movables in transactions were probably more often used. In instances
of cheaper commodities the directly exchange of commodities were often used, instead of the medium of
exchange of goods, by for example, money.
178
See discussion of terms in Chapter 6 (Terms).
172
173
134
determines the legally binding nature of the contract, which is substantiated and validated by
certain factors and formalities of symbolic terms and gestures.
(v) I 5 Oath clause (king/god)
In most of the division texts, the contracted parties swore an oath. The oath clause179 in most
instances occupies a special position in the text, after the sanction and provision clauses and
before the date clause and witnesses.
The details of the oath are indicative of the time and place of the agreement, for the parties
swore by the name of the reigning king and/or the gods of the city and/or even to their citystate. In some instances where the king was deified, only his name was used. In most cases,
the parties would only swear to certain gods. In some agreements, copies were made for the
same contractual parties pertaining only to their agreed division of the property; each
agreement would refer to its own different gods, to which the parties swore an oath. Each
city-state’s scribal school used its own formula or specific wording.180
Oaths were considered part of the “normal contract procedure”, and found in several legal
texts throughout the ancient Near East.
The oath was present in most of the division
agreements.
(vi)
I 6 Witnesses’ names, rank/family standing
There were normally witnesses present; their names were mentioned as well as their seals.181
Certain persons acted as witnesses to the division agreement and their presence was verified
by noting their names, and in most instances their rank or status appeared on the document. In
some texts the professions of some of the witnesses such as the dub-sar and bur-sal’s were
179
The oath in a private document usually consists only of an oath before a god or, in exceptional cases in
Sippar, in the temple. See texts S25 & S26. In the named political documents or treatises, the oath possesses a
different added characteristic, which includes loyalty to the king, an obligation to act against rebels and a curse
for treaty breakers (Weinfeld 1976:380). Weinfeld (1976) undertook an in-depth investigation regarding these
oaths, and opines that in the treaties and loyalty oath of the ancient near East, there are similarities. Cf. Mercer
(1913).
180
Oath references are also found in many of the named collections such as Ur Nammu, Ešnunnu, Lipit Ištar,
ammu-r pi, Middle Assyrian (Magnetti 1979:2).
181
In contrast with ancient Mesopotamia in contemporary law the contractual party’s signature is only an
authentication of the signature and identity of the signatory (Sharrock 2007:112).
135
given, probably to distinguish that these were the scribe and seal maker of the recorded
agreement. In some Nippur texts the priest’s profession was also given. In each city-state the
scribal tradition negates if the Sumerian term igi or Akkadian term ma ar were used which is
translated as “before”.
he words igi and ma ar are designated before each witness name.
The birth order-ranking and sometimes even a profession held by the witness is mentioned.
5.5.4.2 Qualities of cuneiform division texts
(i) I 7 Language
Akkadian and/or Sumerian were used depending on the scribal traditions of Larsa, Sippar and
Nippur. 182 In the Nippur texts, Sumerian was employed. In Sippar, predominantly Akkadian
was used with some Sumerian words and terms. In Larsa the tablets was predominantly
written in Akkadian. Thus the analysis of the languages can assist in identifying the terms
used in the different city-states.
(ii)
I 8 Location
In most of the cases, as a combination of the language, terms, date formula, and
archaeological evidence, the location of the text can be established.
(iii) I 9 ablet’s condition
An important feature of the quality of the discussed text, concerns are whether it is in good
condition and not damaged. If damaged, it is necessary to assess to what degree, for this
could seriously impair the quality of the text captured on the tablet, and hinder proper
182
Speculation and debate are evident amongst scholars regarding the beginning and ending of Sumerian and
the co-existence of Sumerian with Akkadian languages. Michalowksi (2006:159-160,171,177-178) opines that
Sumerian as a language does not have one life, but several lives and several endings. According to him there is
only speculation regarding the origins of the people called Sumerian, their language and the death of their
language Sumerian. Furthermore, he argues that it is problematic to associate languages with different groupings,
and thereby “create labels” and “mentally constructed” “nations”, for these do not exist in the earlier recorded
Mesopotamian history Michalowkski 006 1 9 . Sumerian had a “long and complex life as a literary vehicle”
(Michalowkski 2006:160). He opposes comparisons of Sumerian with the use of Latin in European Middle Ages
and considers it “too simplistic and often misleading”. It is better to refer to the history of Sanskrit, as described
by Pollock (2001 & 2003) He does not consider the Sumerian written history as gradual evolution, but
“punctuated equilibrium” Michalowski 006 160 . Michalowkski 006 171 contends that, “If we accept a
historical chasm between the written language, with its own complex history, and whatever vernaculars were
once used in the land, the issue of the death of Sumerian has to be seen in a new light, since we must ask
ourselves what exactly died and when”.
136
interpretation of this text.
Furthermore, the physical characteristics of the tablet are indicative of the scribal school
tradition, regarding certain types of documents or contracts. These characteristics may
include:
written on the reverse and obverse,
tablet is slender or round,
tablet: sealed, and
existence of any free spaces,
tablet’s width and height ratio ,
tablet accompanied by an envelope.
(iv) I 10 Number of copies (agreements)
In some instances, especially in Sippar, and some agreements in Nippur, each contractual
party received his or her own copy of the agreement, regarding his or her agreed division of
the parental estate assets. In Larsa, all awarded divided assets of the contractual parties were
reflected on a clay tablet.
(v) I 11 Date Formula
In some scribal practices, especially in Nippur and Sippar, a date formula occured which
usually entails a significant event in the king’s regal year, and assists in the chronological
placing of the text. For example, certain small discrepancies in Nippur occured with respect
to the time period between the Larsa Dynasty and the First Dynasty. Hence these assist in
determining the chronological placing of the text, and the scribal tradition of the city-state.
The dating of recordings are, in accordance with Horsnell (1977), divided in two groups of
dating by numbers and that of names. Dating by names is possible either from the mention of
a high official, or the description of an event. In the division agreements it is the latter. This
is termed a year-name system, the sentence being the “name” (mu) of the year, and was
usually written in Sumerian (Horsnell 1977:277).
Horsnell (1977:283) investigated the
137
grammar and syntax of year-names and came to the conclusion that with very few exceptions,
the year-names must be translated actively.183 He states that they:
…were originally promulgated to commemorate the actions of the king. he
king is conceptually the cause of the event described and as such he is the
grammatical subject of the year-name statement. Consequently, the yearnames on the promulgation tablets and their secondary copies commence
mu RN lugal-e with the agentive -e and have clear transitive-preterite forms
of the verbs. Variants necessitating a transitive-active interpretation can be
found for the majority of the year-names of the dynasty (Horsnell 1977:283284).
The year-name statement is therefore best translates: “The year: RN did such-and-such”
(Horsnell 1977:285).
(vi)
I 12 Seals impressions
In some texts, there were seal impressions. Sometimes the seal impressions were made on the
side of the tablet and in other instances underneath the text. In Old Babylonian Nippur (N1),
there is an example of a special seal made for the conclusion of the written division
agreement.
Blocher (2001:144) states that the Old Babylonian seal impressions were a “highly
individualized object”.184 However, regarding two aspects there were no room for choice,
which were the way the seals were rolled on the tablets, and the compulsory sealing of the
tablet or case (Blocher 2001:144-145).185
Malul (2002:47) opines that seals served to identify “instruments of their owners” and were
considered as “magical instruments attesting to the veracity of the document and to the
binding of the person to its contents”. Other features of the seals are that documents in the
ancient Near East “were sealed before being written”; seals were not personal and were
Cf. Cohen’s 199 discussions of year-names.
Werr (1986:461) analyses Old Babylonian cylinder seal designs from old Babylonia Sippar and studied
the impressions on dated tablets from archives and sites with stratified levels. He also studied those from Tell
Harmal and Tell el-Dhibai, in the Diyala region northeast of Babylonia (Werr 1986:462). He states that “well
carved and beautifully executed seals” belonged to the old Babylonian period Werr 1986 46 .
185
The scope of this thesis does not allow for a study of the different seal impressions of the division
agreements in the city-states of Larsa, Nippur and Sippar. However, in light of individualism shown in seal
impressions, a further study may shed more light on the different individualised practices.
183
184
138
commonly borrowed and exchanged, since the names on the sealed tablet do not necessarily
match the seal impressions. Malul
00 47 contends that therefore the “seal owner was not
important”, and notes that a substitute for a seal could include finger nails and the hem of a
garment,186 which points to the “basically magical nature of the act of sealing”.
After the conclusion of a business transaction such as a sale, “seal designs are mostly known
from the impressions of cylinder seals, which were rolled on clay tablets, probably by the
scribe”.
s a general practice it is the seller’s seal the party alienating the goods whose seal
was placed on the tablet, as well as those of witnesses to the transaction. As a rule, these seals
were also placed on the seller’s clay envelope of a tablet; on that envelope, the text of the
tablet was duplicated (Werr 1986:461). Werr (1986:461) identifies “two styles” of seal
impressions in Sippar, of which one has “an exceptionally rich repertory and delicate
engraving”.
Unfortunately, the majority of seals do not have an inscription, so it is sometimes difficult to
make an estimate of the date of the tablet. Among those who are inscribed, only one or two
gods, and the seal owner’s name were mentioned. In cases were the seal owner “calls himself
the servant of a historically known ruler”, we can then manage to estimate the date. However,
other information on the tablet may assist us, as for instance where the date is mentioned (the
year name), usually on legal documents (Werr 1986:461).
(vii) I 13 Rhythm sequence/special style reflecting scribal school tradition within a certain
city-state
In each city-state there was a differentiation of sequences in the appearance of essential- and
natural elements, affected by the choice of the scribe who inscribed the oral agreement on the
clay tablet. In this respect there seem to be specific scribal school practice patterns of style,
with some exceptions. See Appendix G for a discussion and table format outline of these
sequences in the said city-states, and Appendix H reflecting schematic outlines of
geographical and chronological distribution of sequence patterns in the said city-states.
186
See also Malul (1988:291-309,451; 1991).
139
5.6 OTHER TYPES OF DIVISION AGREEMENTS: DIFFERENT MECHANISMS AND
SOLUTIONS
5.6.1
Introduction
Distinction is made between this agreement and other division agreements, for each type of
division agreement has its own unique specific aim and end-result/s establish by consensual
agreement by the contractual parties. For instance, regarding a family deceased division
agreement, there are similar agreements, such as a quasi-division agreement in an adoption
agreement,187 a living estate owner’s division agreement between his future beneficiaries188
and dissolution of partnership189 in Old Babylonia, which prima facie is similar.
The similarities of these types of agreements emerge when a scholar has to distinguish a
division agreement from other legal constructions such as sale, donation, and exchange
etcetera. The division agreements all include one specific term, namely that the contractual
parties mutually agree to the terms of the agreement.
Specific terms used by the Old
Babylonian scribes from the city-states Larsa, Nippur and Sippar were the Sumerian terms ba
187
See a Nippur text in Stone & Owen (1991:43-44), text ARN 45.
See an agreement excavated from Nippur and as translated by Edward Chiera (1922:104). The language
is Sumerian. It is an agreement between Warad-dSin and Nur-dṣamaš, to which the father, wil-ili, is also a
party. The agreement is one of the legal administrative documents found in Nippur - mainly from the Isin and
Larsa Dynasties, during the reign of king Damiḳ-ilišu.
he measurements are 7. inches in length x 4.4 inches
in width x 2.2 inches thickness of an unbaked tablet (Chiera 1922:104). The text is number 16 from the catalogue
of the Babylonian section CBS 10894 (Chiera 1922:54- . Chiera 19
4 named this text as “a father
divides his property among his children on condition that they provide for his substance”.
he obverse
contained a document with the terminology present of a mutual agreement concluded between the contractual
parties. Chiera (1922:40 fn 1,55) pointed out that if it had not been for the first two lines that began with the
description of division agreed upon, we could have considered it to be an adoption agreement. However it seems
that the text is not an adoption agreement, nor is it a deceased division agreement, nor a will. The father of the
paternal estate was still alive during the making of the agreement; unlike the deceased division the children
concluded an agreement with their father regarding their shares, to become the ultimate owners at the time of his
death. In a will, the father can later decide to alter his intentions; however here he binds himself by agreement to
deliver the estate assets to his sons, on condition that his sons maintain him. (Theoretically in South African law
terms the agreement could be classified or understood as a donatio mortis causa-construction.) More
specifically, the living estate owner donates his assets to each of his sons while in the second half of the
preserved agreement the sons will pay to their father, Awil-ili, monthly alimony and substance of oil, as well as
an annual amount of silver for sustenance. If the sons do not pay the sustenance, then each son will forfeit “his
heirship”. hey will finally receive ownership of the property, at the time of their father’s death, if they have
succeeded in maintaining their father, as per agreement. The aim of the agreement was twofold: firstly, to
allocate the estate assets to the future heirs of the estate owner’s estate during his lifetime. Secondly, the two
sons were required to pay their father maintenance as a provision to inherit the assets as beneficiaries (heirs) at
the time of his death and become owners of them. In practice it seems that the brothers took control of the assets
to assist them in maintaining their aging father, although they were by agreement not considered rightful owners;
ownership would only become actual if they adhered to the agreement.
189
See a Sippar text from Duncan (1914:188-189) which is a partnership agreement between rib-Sin and
Nūr-ṣamaš with the terms mi-it- a-ri-iš i-zu-zu-ma, “where they agree to equally divide” the communally-shared
assets. Also Cf. Schorr (1913:224- 78 . he same term, “in mutual agreement”, še-ga-ne-ne-ta is also
predominantly use in the dissolution of the partnership.
188
140
and še-ga-ne-ne-ta and the Akkadian term i-zu-zu. Another similarity is that the contractual
parties with each division agreement have at least one similar aim, namely the dissolution of
co-ownership.
The following discussion reflects the nature and differentiation of each type of agreement
regarding its solutions and end-results.
The comparison shows that the quasi-adoption
agreement, family agreement from a living estate, and partnership agreement, each entails
more than only the dissolution of co-ownership as found with the family division agreement
from a deceased estate, discussed above.190
5.6.2
Quasi-adoption agreement
The named quasi adoption agreements display elements that are similar to those in other
division agreements. The motivation for the quasi adoption agreement is not only to divide
the communally owned assets by altering it to sole ownership, in order to escape the perils of
co-ownership; other reasons play a specific role in the conclusion of the adoption agreement,
which includes the adoption of a future beneficiary for the adopted parent’s estate.191 These
quasi adoption agreements consist of the division agreement of a living estate owner
containing an adoption-clause.192
190
The length of this paper does not permit the detailed discussion of each type of division agreement.
Further investigation of these agreements, and a more detailed investigation of each kind of agreement structure,
aim and function, may reflect complicated legal practices, and show the provision of different solutions to
problems and impractical circumstances within the family and business milieu.
191
The basic meaning of Sumerian ba-da-an-ri is “to adopt”. See Pennsylvania Sumerian Dictionary
http://psd.museum.upenn.edu/epsd/nepsd-frame.htm. Cited 5 February 2012, in unknown Babylonian texts:
nam-dumu-ni-šè ba-da-an-ri BE 06/2, 24 5; nam-ibila-ni-šè ba-an-da-[ri] BE 06/2, 28 3; u4nam-ibila-ni-šè
ba-an-da-ri-a BE 06/2, 28 4.
192
Two examples from Nippur contain the term še-ga-ne-ne ta “in mutual agreement”. One example is a
family deceased division agreement from one text in Stone & Owen (1991:68-69), text OECT 8 16, which is a
recorded division agreement between an adopted father Ibbi-Enlil and his adopted sons Mannum-mešu-li ur,
Namaršu-lumur, Ninurta-muštal and Munawirum See N10 .
nother Nippur text from Stone & wen
(1991:40-41), text TIM 4 14, is an agreement in the estate of living parent ṣumman, which includes an adoption
agreement between adopted father, ṣumman and adopted son Ur-dukuga, and division agreement between
adopted son Ur-dukuga and his daughter A assunu containing an appendix to the agreement – a usufruct to a
person of unknown status: Luliya. See Chapter 6 (Terms) under the heading adoption agreement, paragraph 6.4.
See also a recorded quasi-adoption agreement between ab-bala u and mother Beltiya between the parents and
abil-a i, an adopted son Ninurta-gamil, and natural son (preferential share). The text in Stone & Owen (1991:
47-48), BE 6/2 57, is translated and published as follows “ ab-bala u son of Etel-pi-ṣamaš and Beltiya his wife
have adopted abil-a i as their son. They will divide equally by lots house, field, and household property – all
that there is – after Ninurta-gamil the eldest son has taken his preference portion. Ninurta-gamil his brother will
not make a claim against the tablet of heirship of Aplum the gala or the temple offices, fields, house, and
orchards of abil-a i. If ab-bala u and Beltiya his wife say to abil-a i their son, ‘You are not our son,’ they
will pay ½ mina of silver. And if abil-a i says to ab-bala u and Beltiya, ‘You are not my father, you are not
my mother,’ they will shave him and place a slave mark on him and give him for silver”.
141
Obermark (1992) and Stone & Owen (1991) discuss various Old Babylonian adoption
agreements and quasi-adoption contracts, considering the quasi-adoption agreement as part of
the corpus of adoption agreements.
An example of such an agreement is from Old Babylonian Nippur in Stone & Owen
(1991:43-44), text ARN 45, and reads as follows:
Damiq-ilišu son of Iddinya has adopted Ilum-gamil the eldest brother, Mare etim his brother, and Ilšu-bani his brother as his heirs. They will divide
equally, by casting lots, the house, field, (and) orchard – all that there is of
the property of Damiq-ilišu. If Damiq-ilišu says to Ilum-gamil, Mar-e etim,
and Ilšu-bani his sons, ‘You are not my sons’, he will forfeit the property of
his father [ ]. If Ilum-gamil, Mar-e etim, and Ilšu-bani say to Damiq-ilišu
[their father], ‘You are not my father’, [they will pay] 1/2 mina of silver. In
mutual agreement they have sworn in the name of the king.
Another Nippur text from Stone & Owen (1991:40-41) is an agreement in the estate of living
parent ṣumman, which includes an adoption agreement between adopted father, ṣumman and
adopted son Ur-dukuga, and a division agreement between adopted son Ur-dukuga and his
daughter
assunu containing an appendix to the agreement – a usufruct or fideicommissum
to a person of unknown status: Luliya.
The differences between division agreements of a living estate owner in an adoption
agreement (identified as quasi-adoption contracts) and those of a deceased owner are as
follows:
In the division of property in a deceased estate, a division agreement is concluded only
between the beneficiaries of the deceased estate owner, who is generally the late father/
mother or in some instances the deceased brother or uncle.
In the named quasi-adoption contracts a division of property occurs, when the estate
owner is living and he or she, in contrast to the deceased estate agreement, is one of the
contractual parties to the agreement. The estate owner adopts a third party and usually the
adoptee becomes a contractual party. The contractual parties of quasi-adoption contracts
are the living estate owner, appointed future beneficiaries of the estate, and adopted
kinship members. However, the living estate owner plays a very important role in
142
negotiations and in some agreements the estate owner’s suggestions are instructive.
Although one similar end-result in division agreements of a deceased estate and living
estate owner occurs where co-ownership through unique mechanisms of sale, exchange
and donation is altered to sole ownership, a different end-result in the quasi-adoption
contracts includes an adoption, generally with a fideicommissum193 or usufruct194
construction.195
A quasi-adoption agreement is neither in its essence a deceased division agreement nor an
adoption agreement. The quasi-adoption and deceased division agreements have in common
the change of co-ownership to sole ownership. However, the quasi-adoption and adoption
agreements have in common an adoption clause, while the estate owner is still living.
193
A fideicommissum is a legal institution applied in Roman law for several centuries and still in use in some
contemporary Western law systems. It derives from the Latin word fides (trust) and committere (to commit),
meaning that something is committed to one's trust. For the purposes of this thesis, it means a benefit awarded to
a beneficiary, subject to the obligation of awarding it to another. Cf. Kaser (1984:381-386). In South African
law, in terms of a fideicommissum the fiduciary will acquire a vested right in the property while, if the
fidecommissaries failed to acquire the property, the property will revert to the fiduciaurius. In contrast, a usufruct
differs to an extent in the sense that a usufructuary can never acquire a vested right in the corpus of the property
and will only receive the fruits of the property. Hence, one must establish who will become the owner and what
the limitations of this ownership are. If the beneficiary becomes the owner, it is a fideicommissum. If the
beneficiary becomes an owner subject to the use and enjoyment of “an intermediate beneficiary” then a usufruct
will receive the fruits of the property for his or her own purposes; see De Waal & Schoeman-Malan in “Law of
Succession” 008 167 .
194
A usufruct is a legal institution and term from Roman law and in use today in some Western law systems.
It derives from the Latin word usufructus, meaning, and “using the fruit” of land. For purposes of this thesis, it
means the right to enjoy the use of another’s property for a specific time period, even extending up to a lifetime,
as long as the said property is maintained in reasonable order. Cf. Kaser (1984:148-152). In South African law,
a usufruct is a “personal servitude giving the usufructuary a limited real right to use another person's property
and to take its fruits with the obligation to return the property eventually to the owner, having preserved its
substantial quality”. ccording to De Waal & Schoeman 008 166 , the rationale for this legal institution is to
make provision for the usufructuary to receive income for a certain period. The usufructuary is not the owner
while during the period of the usufruct the owner cannot use, enjoy or take the fruits of the property (De Waal &
Schoeman-Malan (2008:166).
195
Other Roman law constructions now being used in contemporary law can assist in finding a definition for
these Mesopotamian legal institutions. The application of these law constructions should be applied with
caution: which are in this article usus (use) and habitatio (dwelling). They are personal servitudes in terms of
which beneficiaries are granted the right to use a property within certain limitations or to live on it. Cf. De Waal
& Schoeman-Malan (2008:168). With a usus, not only the beneficiary but also the members of his or her
household are granted the right to use the property and can enjoy its fruits insofar as these provide for the
beneficiaries’ maintenance needs, not insofar as to gain profit. he corpus of the property must stay intact; see
Van der Merwe et al (2007:521-523). Habitatio is the granting of the right to the beneficiary and his or her
family to live, for instance, on the property; additionally he or she can rent the property and live somewhere else
(Van der Merwe et al 2007:523-524).
143
5.6.3 Dissolution of a partnership
The same instance occurs in the dissolution of a partnership of which the aim and rationale of
a change of co-ownership to sole-ownership is different from that of a family deceased
division agreement.
Here the contractual parties and partners were mostly not family
members and the partnership was established and maintained for business purposes. For
different reasons the partners do not wish to continue their partnership and they agree to its
dissolution employing the same term of “mutual agreement”. The reason and nature of coownership differs from the deceased and living estate family division agreement and quasiadoption agreement respectively.
In the Sippar text from Duncan (1914:188-189) is a partnership agreement between rib-Sin
and Nūr-ṣamaš.
he text reads as follows from lines 1-17:
rib-Sin and Nūr-ṣamaš conducted a business on a partnership basis, and then
entered into the temple of Šamaš and made their reckoning, and the money,
debts, female and male slaves, what of the way as well as within the city, they
equally divided, and the settled up their business. That in regard to money,
male and female slaves, and debts, what of the way as well as within the city,
from chaff to gold, one will not bring suit against the other, they have invoked
the name of ṣamaš, Aja, Marduk, and ammuarabi. Lines 18-34 (witnesses).
Before Awil-ilim, etc.
5.6.4
Living estate division agreement
In the division agreement of a living estate owner’s estate the agreement is a family
agreement. When the dissolution of co-ownership is agreed upon, the estate owner is still
living (as in the instance of the quasi adoption agreement) and he or she plays an important
role in the instruction regarding the division of the estate assets. This is in contrast with the
deceased division agreement and similar to a quasi-adoption agreement with the further endresult that a fideicommissum- or usufruct construction forms part of the consensual
agreement’s provisions.
In a Nippur example from Stone & Owen, text BE 6/2 (1991:51-52) the text is a recorded
division agreement between the living parents Awiliya and Narumtum with their sons, IbbiEnlil, Ilšu-ibnišu and Ilima-abi.
144
It seems that the sons conditionally received the assets of the paternal estate, as
heirs/beneficiaries of their mother, Narumtum.
Exactly when the sons will conditionally receive the assets, as heirs/beneficiaries, is not clear:
whether at the time of the death of their father or during his lifetime. It seems that the
property probably devolved upon the sons at the time of the father’s death, whereby the sons
in exchange for the property’s use, give to their mother Naramtum, certain rations.
The sons by agreement received the paternal estate assets on condition that they give to their
mother an exact proportion. Thus it does not matter how much the property produced, the
exact portions must be met; otherwise as a sanction the sons will forfeit the property.
Furthermore their mother cannot receive more than the exact proportion; thus she does not
have unlimited right of possession over the fruits of the assets. She does not control the
property; however it seems that she is an owner of the property regarding only certain rights
of entitlement. She received some sort of predetermined maintenance to be delivered by her
sons during her lifetime. This is a unique legal institution.196 She and her sons are owners;
however, they and she have different rights, though limited, especially for her (Chiera
1922:104 also translates the text). The translated text reads:
Awilya son of Warad-Sin has married Naramtum daughter of Sinatum. Awiliya
has given Ibbi-Enlil their heir and eldest son, Ilšu-ibnišu his brother, and Ilimaabi their brother to Naramtum his wife as heirs.
To Ibbi-Enlil the heir and eldest son, to Ilšu-ibnišu his brother, and to Ilima-abi
their brother, house, field orchard, male and female slaves, and household
goods.
Awiliya their father, after the eldest son has taken his preference portion, will
divide by lot among them equally.
If wiliya says to Naramtum his wife, ‘You are not my wife’, he will pay ½
mina of silver.
If Naramtum says to Awiliya her husband, ‘You are not my husband’, he will
shave her and place a slave mark on her and giver her for silver.
If Ibbi-Enlil, Ilšu-ibnišu, and Ilima-abi his brothers say to Naramrum their
mother, ‘You are not our mother’, they will forfeit the property of Awiliya their
father.
If Narumtum says to Ibbi-Enlil, Ilšu-ibnišu and Ilima-abi her sons, ‘You are not
196
This can be considered either a fideicommissum or a usufruct construction. See Chapter 6, under the
heading Sippar, usufruct-clause, and previous footnotes in this section. The scope of this thesis does not allow
for the study of this legal institution, however further studies may shed more light on the dynamics of this legal
institution on the lives of the contractual parties in a division agreement.
145
my sons’, Naramtum will [
] the property of Awiliya her husband. [
]
heirship [ ].
Ibbi-Enlil [the heir and eldest] son, Ilšu-ibnišu, and Ilima-abi his brothers will
provide [an annual ration of] 2 gur 2 pi of barley, 6 mina [of wool, and x sila
of] oil to Naramtum their mother.
Any heir who fails to provide the barley, wool, and oil rations will forfeit his
father’s property. In mutual agreement they have sworn in the name of the king
(Stone & Owen 1991:51-52).
5.7
CONCLUSIONS
In the study of legal textual sources in the ancient Near East, different methodologies and
different approaches were developed. In order to study the intrinsic details of prima facie
family deceased division agreements, a specific methodological approach needed to be chosen
and/or devised.
From the various scholars’ methodologies, Malul’s 1990 one methodology approach, the
typological comparison, is of special interest for this thesis. Malul (1990) offers two
approaches in the study of ancient Near Eastern sources: namely, historical and typological
comparisons. The former is a method employed where there is a historical connection
between the common tradition in those societies (Malul 1990:13). The aim is to discover an
historical connection between cultures. For purposes of this thesis, the typological comparison
is important and this comparison is applied to societies that are geographically and
chronologically distant, lacking historical connection (Malul 1990:14). Its aim is the study of
the different forms of society to create a theoretical model for the study of universal human
social phenomena (Malul 1990:15).
With this in mind, an analysis-model was designed to simplify and overcome problems, with
the aim of identifying the categories and sub-categories of certain prerequisite requirements,
legal practices and scribal school practices, as well as the intrinsic details of the agreement,
without getting lost in the details and interpretations thereof. Hence, the aim and purpose of
the methodology is to simplify the analysis of Old Babylonian division agreements.
To explain the analysis-model, a concrete example was devised, namely that of a house. For
it to be identified as such, certain qualities must be present such as the walls, roof, door and
windows. With respect to the family deceased agreements, these pre-requisite qualities are
named essential elements. The said elements present to classify an agreement/contract as a
146
division agreement are the following: family connection of beneficiaries, deceased estate
owner, estate assets, mutual consent and raison d’êtr˹ of the agreement.
Next are the named natural elements. Not every house looks the same; in this instance, not
every family deceased division agreement does, either. Some houses may have a patio, or be a
double storey.
The same with the natural elements of the family deceased division
agreements. Hence, the status and the obligations of the beneficiaries and consequently the
terms of the agreement, as incorporated in the different legal practices in Old Babylonian citystates, make each division agreement unique in a given city-state and family circumstances.
The said natural elements of the division contract are natural consequences deriving from a
division agreement through practice and law. They are not always easily noticeable and
accessible, due to the overwhelming application of oral, rather than written, legal traditions in
Old Babylonia.
The natural elements comprising the choices from law and practice in Old Babylonian Larsa,
Nippur and Sippar are identified as follows: Nat 1 adoption/support, Nat 2 bringing in/equal
shares, Nat 3 division by lots/in good will, Nat 4 heart is satisfied, Nat 5 as much as there
is/completely divided/from straw to gold, Nat 6 no claim, Nat 7 oath in temple/oath, Nat 8
preference portion, Nat 9 sanction clause, Nat 10 trust (trustee), Nat 11 usufruct and Nat 12
witnesses.
Finally, there are the incidental elements. Most of the time, the services of a scribe were
obtained, although in a few texts one of the contractual parties wrote down, or summarised the
orally-stated consensual agreement. Thus, incidental elements are aspects of the written
formalities and qualities of division agreements recorded by scribal school practices
influenced by region, language differences, social, economic and architectural conditions.
These consisted of different scribal practices, which included certain written formalities and
qualities of the recorded division agreement. In the case of the house-example, various
interior and exterior decorations may be added to a house ˗ for instance, the choice of
windows, the colour of the paint, etc.
Incidental elements may be categorised into written formalities of the agreements, and the
147
qualities of the texts. The outline is as follows: under the category written formalities, the
following aspects are investigated, namely: names of contractual parties, birth order, and
description of assets (thorough description, value), special legal terms, sanction clause (type),
oath clause (regarding specific king/god) and witnesses (regarding names, rank/family
standing). The following qualities of the division texts were emphasised: language, location
of text, condition of tablet, copies, date formula, impressions of seals and the rhythmic
sequence/special style reflecting a scribal school tradition within a certain city-state.
Additionally, from an all-inclusive stance there are various evolutionary stages of a family
deceased division agreement, which culminate in the final stage, the conclusion of the
agreement. The result of the consensual family deceased division agreement is the dissolution
of co-ownership. During the final stage, the agreement itself is a complex legal notion and
potentially, by choice between contractual parties in one agreement, at least one or some of all
three legal constructions can occur: namely, a sale, an exchange and a donation.
However, there are similar agreements such as quasi-division, adoption, living estate owner
division, and dissolution of partnerships, which display different unique purposes and various
mechanisms and outcomes. This necessitates the complex details of the family deceased
division agreement to be identified.
All of these types of division agreements have one specific term present: namely, that the
contractual parties mutually agree to the terms of the agreement, with specific terms, namely
the Akkadian i-zu-zu and Sumerian term ba and še-ga-ne-ne-ta. Another identified similarity
is that the contractual parties with each division agreement have at least one similar aim in
mind: namely, the dissolution of co-ownership.
By contrast, the division agreement has three potential legal notions as mechanisms for
dissolution of ownership: namely, a sale, a donation and an exchange. This agreement is
furthermore per se different from a stand-alone sale-, donation- and exchange- agreement.
A methodology, the analysis-model is used to delineate these agreements from deceased
family estate agreements, by identifying which elements exist only in a family deceased
division agreement and in the quasi-adoption agreements, dissolution of a partnership and
living estate division agreement.
148
In essence, the division agreement remains the practical solution of dealing with beneficiaries
of an estate, to obviate the undesirable consequences and situations of co-ownership in the
common bequeathed property.
New perspectives pertaining to the meaning, consequences
and spirit of the division agreements in Old Babylonian city-states may emerge as a result of
the application of the analysis-model, in the interpretation of Old Babylonian division
agreements.
149
150
PART B
CONTENT ANALYSIS AND TYPOLOGICAL COMPARISON STUDY
CHAPTER SIX
TERMS IN DIVISION AGREEMENTS
“...th˹ gr˹at trans˺ormation o˺ M˹sopotamian writing...wh˹n it w˹nt ˺rom a
simple writing of things to the writing of words and sounds. It was no longer
directly connected only to concrete things, but to words, to the spoken
language, and in that way it became able to reproduce that language – in
other words, to cease being purely an evocative mnemonic device and became
a system just as clearly and distinctly meaningful as the language itself:
writing was able to fix and materialize language in all its extraordinary
capabiliti˹s”
(Bottéro et al 2000:24).
In the recorded family deceased division agreements of Old Babylonian
Larsa, Nippur and Sippar, certain terms are reflected in the recording of the
agreement, as a result of the choices made by the parties and Old
Babylonian legal practices. The scribe, of his own choosing, inscribes terms
in recording an orally-concluded transaction and by implication reflects the
scribal school practices in these three city-states. Some of these terms are
identified and discussed in this chapter, to assist in gaining a better
understanding of the meaning of the terms employed in the texts in Part C.
he purpose is to provide a synoptic understanding of the terms’
grammatical content, mainly found in the different lexicons and, to a lesser
extent, in secondary literature.
6.1 INTRODUCTION
A contract between individuals in the legal milieu is not implemented in the same manner as
legislation and legal norms, because contracting parties within a framework of different legal
practices decide which practices they will follow, and under what conditions, if any. There is
consequently ample room available for contractual parties to decide by mutual agreement
151
how, when and what terms they want to agree to. In this chapter, some of these terms are
synoptically discussed pertaining to their meaning and grammatical content, utilising lexicons
and, to a lesser extent, secondary literature.
This chapter is divided into two main parts: namely, the essential terms and the natural terms
of such an agreement.197
In the first part, certain terms are outlined, to assist in the identification of essential elements
that constitute the basic requirements for an agreement to be a family deceased division
agreement. They are the mutual agreement clause, inheritance clause and beneficiary clause.
In the mutual agreement clause, the Sumerian terms ba, še-ga-ne-ne-ta, and Akkadian term izu-zu (zâzu(m)) are discussed. In terms of the inheritance clause heading, the meaning of the
Sumerian term
al-ha and the Akkadian term zittu(m) is outlined. With respect to the
beneficiary clause, the term ibila is explained.
In the second part, the natural elements are outlined, which are the legal practices of the
division agreement. A distinction is made between regular natural elements, and irregular
natural elements regarding certain legal practices.
Under the heading regular natural elements, certain natural elements are discussed, which
occur in all or most of the said city-states. These natural elements are “bringing in” (Nat 2),
division by lots (Nat 3), “as much as there is” (Nat 5), no claim (Nat 6), an oath (Nat 7), a
preference portion (Nat 8), “equal shares” (Nat 9), and witnesses (Nat 12).
Under the heading irregular natural elements, there is only one legal practice to be found in a
family deceased division agreement of Nippur: namely, the adoption/support clause (Nat 1).
In Sippar the following legal practices are identified namely, a “heart is satisfied” clause Nat
4), a trust clause (Nat 10) and a usufruct clause (Nat 11).
197
The structure and nature of the termed essential and natural elements are discussed in Chapter 5, the
analysis-model chapter.
152
6.2 ESSENTIAL TERMS IN DIVISION AGREEMENTS
6.2.1
Mutual agreement division clause
6.2.1.1 Ba
In Sjöberg (1984:2-4,5.6) the denotations of the term ba, under the heading D and written ba
and be6 description, applicable to the translations in Part C of the family deceased division
agreements, are as follows: under heading number 1, it means “to allot, to distribute, to give”
and heading number 4 “to divided up, to share”. Under the heading 1.1.
“estates,
inheritances” (Reiner 1965: CAD B,D3-4) in the Old Babylonian period, the expression ala
ba-a nu-un-gá-gá-ne, signifies they shall not contest the share (which is already given out),
from LL paragraph 31:9.198
Under the heading .1. “to divide up, to share” in the said period Reiner 1965:CAD B,D6)
the following are found:
In the paragraphs of LL,199 the term ba is reflected in the division of an estate, wherein the
beneficiaries agree to the division, i.e. to divide or to share.
In LL, paragraph 22:6-7200 ibila-gin7-nam é ì-ba-e-ne, which means, “they are
beneficiaries (beneficiaries), they will share the estate”.
In LL, paragraph 24:11-13201 níg-gur11-ad-da-ne-ne téš-a-sì-ga-bi ì-ba-e-ne, which
translates, as “the children of the second wife shall divide the property of their father
equally” Roth 199
1.
Roth 199
translates paragraph 1 as follows “If a father, during his lifetime, gives his favoured son
a gift for which he writes a sealed document, after the father has died the heirs (ibila) shall divide (ì-ba-en-ne)
the (remaining) paternal estate; they will not contest the share ( a-la) which was allotted, they will not
repudiate”.
199
LL is the abbreviation for the “law collections of cuneiform collection of Lipit Ištar”, also known as the
“law code of Lipit Ištar”.
200
Roth (199 0 translates paragraph
as follows “If, during a father’s lifetime, his daughter becomes an
ugbabtu, a nadītum, or a qadištu, they her brothers shall divide the estate considering her as equal heir”.
201
Roth (1995:30-31) translates paragraph 24 as follows “If the second wife whom he marries bears him a
child, the dowry which she brought from her paternal home shall belong only to her children; the children of the
first-ranking wife and the children of the second wife shall divide the property of their father equally”.
198
153
And in the paragraph of LL 25:12-14202 dumu-gemé-ke4 dumu-lugal-a-na-ra é[nu]-unda-ba-e, which translates as, “the child of the former slave girl will not share the estate
with the child of the former master”.
In another paragraph of LL 31:6-8 (See fn. 198) egir ad-da úš-a-t[a] ibila-e-ne é-ad-da ìba-e-ne, which translates as, “after the father is dead the beneficiaries will divide up the
father’s estate”.
In YOS 8 169:9-10: é-a níg-gur11-bi ì-ba-e-ne - “they will divide up the possession of the
house”.
In Jean Tell Sifr 5 reverse sidelines 3-4, one also observes in lines 8-9, kiri6 níg-gur11 ù
giš-šu-kár a-na gál-la ì-ba-e-ne
giš
šub-ba ì-šub-bu-ne, which translates as “houses,
orchards, valuables, and equipment, as much as there is – they will divide it up, they will
cast lots”.
In the following texts, the beneficiaries or heirs divide the estate; the main terms še-ga-ne-neta (by mutual agreement),
giš
šub-ba-ta (casting of lots), in-ba-eš (divide up) and ibila
(heirs/beneficiaries) are present:
In PBS 8/1 99 reverse iii 10-12 the term ba reflects in the text as follows: ibila-PN-ke4-ne
giš
šub-ba-ta in-ba-eš, which translates as “PN’s heirs divided up the estate by casting of
lots”.
In TIM 4, 2:30; UM 29-13-230:14 one finds the following: še-ga-ne-ne-ta in-ba-(e)-eš:
“they divided it up by mutual agreement” and in IM 4 1 80-82; TIM 4 4:36. In TIM 4
8:26 še-ga-ne-ne-ta giššub-ba-ta in-ba-eš.
In UM 55-21-240:3-6; 9-12;15-16 as follows: še-ga-ne-ne-ta téš-a-sì-ga-bi ì-ba-e-ne: “by
mutual agreement, they will divide it up equally”.
Roth 199 1 translates paragraph
as follows “If a man marries a wife and she bears him a child and
the child lives and a slave woman also bears a child to her master, the father shall free the slave woman and her
children; the children of the slave woman will not divide the estate with the children of the master”.
202
154
In the PSD,203 the root word ba means, “allot”. This occurs in the texts from the periods
Early Dynastic IIIb, Old Akkadian, Lagash II, Ur III, Early Old Babylonian, Old Babylonian
and unknown periods. The written ba means “to divide into shares, share, halve; to allot”.
The Akkadian equivalent is qiāšu; zâzu; and other Akkadian terms: qiāšu “to give, present”
and zâzu “to divide”. There are sixty-three distinct forms of this term. In the reference to the
different texts where this term occurs, it means “to divide into shares, share, halve” that form
the base “ba”. The PSD204 website provides references, as well as transcriptions of certain
texts. Under the heading number 1, its meaning is “to divide into shares, share, halve”. The
texts where this term occurs are:
LEX/Old Babylonian/Kish íb-ta-ba-ba-e MSL SS 1, 106 o i 1.
LEX/Old Babylonian/Nippur [[ba]] BA-E = za-a-zu OB Diri Nippur Seg.9, 44.
LEX/Old Babylonian/Sippar [[ba]] za-[a-zu-um] MSL 14, 122-127 09 611; [[ba]] qí-a[šu-um].
LEX/Old Babylonian/unknown [[ba-e]] BA-E za-a-zu-um OB Diri Oxford 589.
C Seg.2, 109.
SAOC 44, 11 16; ì-ba-e-ne SAOC 44, 11 5.
LEX/Old Babylonian/unknown lú igi úš-a ba = ša i-na-šu da-ma ma-li-a lú-azlag B and
ELA/Early Old Babylonian/Nippur è-ba-e-ne SAOC 44, 11 11; téš-a sì-ga-bi ì-ba-[e-ne]
ELA/Early Old Babylonian/unknown ba murgú BIN 09, 182 2; [...] x ba BIN 09, 324 4;
[x] ba [lugal] BIN 10, 009 8; ba x kar x BIN 10, 068 7; 6 (diš) ARAD2-èr-ra lú kas4
banšur-šè ba BIN 10, 078 5; NE x x ba x NI gi!? BIN 10, 189 1.
gis
ELA/Old Babylonian/Nippur in-ba-[e-ne] OB Contracts, pl.G7 no.70 2; ì-ba-e-ne ARN
045 11.
ELA/Old Babylonian/unclear še-ga-ne-ne-ta geš-šub-ba-[ta in-ba]-eš MC 3, 51 44.
unknown/Old Babylonian/unknown saĝ še ba = ma-hi-ir ip-ri MSLSSI, 17-27 ii 20; saĝ
nu še ba = la ma-hi-ir <ip-ri> MSLSSI, 17-27 ii 21; [[ba]] za-za-u2 MSL 09, 124-137 ix
573; [[ba]] qi2-a-šum MSL 09, 124-137 ix 574.
unknown/Old Babylonian/Nippur še-ga-ne-ne-ta in-ba-e-eš SAOC 44, 31 25.
unknown/Old Babylonian/unknown še-ba ì-ba ù siki-ba in-na-an-[kal] TIM 04, 13 23;
203
The Pennsylvania Sumerian Dictionary. http://psd.museum.upenn.edu/epsd/nepsd-frame.html. Cited 5
February 2012.
204
Pennsylvania Sumerian Dictionary. http://psd.museum.upenn.edu/epsd/nepsd-frame.htm. Cited 5
February 2012.
155
še-ba [ì]-ba ù siki-ba TIM 04, 13 3; lú lú-ù-ra in-ši-[ba] SAOC 44, 86 4.
unknown/unknown/Nippur [tèš-bi in]-ba-e-eš N 0968 17.
6.2.1.2
Š˹-ga-ne-ne-ta
In the PSD205 the Sumerian root word šeg means agree; this source refers to sixty-two Old
Babylonian texts where it occurs. The written še denotes “to agree, be in agreement; to
obey”. In
kkadian the word is magāru. References to this root are mainly found in Larsa
and Nippur. The other Sumerian root šega (written word še-ga) means agreement. It is
encountered during the early Old Babylonian and the Old Babylonian period. In Akkadian, it
is mitgurtu, meaning agreement.
Distinct forms are attested, namely še-ga-ne-ne-ta, with the base še-ga and morpheme,
anene-ta, which according to the PSD206 website occurs in fifteen texts, and še-ga-ne-ne,
with the base še-ga and morphology anene, which occurs in one text.
In the reference to the different texts where this term occurs, it denotes “agreement”, from the
base “šega”. The PSD207 website furnishes references and transcriptions of certain texts.
These texts are not translated, but from the transcriptions, the researcher has identified some
types of division agreements; these follow:
From Early Old Babylonian/Nippur še-ga-ne-ne-ta SAOC 44 11 15208 and SAOC 44, 11 9
are both identified, by the researcher, as quasi-adoption agreements, with an adoption and
division clause.
205
The Pennsylvania Sumerian Dictionary. http://psd.museum.upenn.edu/epsd/nepsd-frame.html. Cited 5
February 2012.
206
Pennsylvania Sumerian Dictionary. http://psd.museum.upenn.edu/epsd/nepsd-frame.htm. Cited 5
February 2012.
207
Pennsylvania Sumerian Dictionary. http://psd.museum.upenn.edu/epsd/nepsd-frame.htm. Cited 5
February 2012.
208
SAOC 44 11 15 is a recorded quasi-adoption (division) agreement relating to the estate of an adoptive
father Ipqu-Damu, and adoptive mother Tappiya, and adopted sons, Enlil-abi and ṣamaš-šemi; including an
adoption and division clause. he text is translated as follows “[Ipqu-Damu] has adopted [Enlil-abi son of
Ninurta–abi, and ṣamaš-šemi] as his beneficiaries. hey will divide by casting lots the inheritance [of house and
field – all that there is – after] ṣamaš-šemi has received [his preference portion]. If [ṣamaš-šemi] and [Enlil-abi]
say to and (sic) [Ipqu-Damu, ‘You are not our] father,’ [they will pay] 1/3 mina of silver, and if erasure ṣamaššemi and Enlil-abi say to and (sic appiya their mother, ‘You are not our mother’ they will pay 1/3 mina of
silver. Ipqu-Damu their father and his beneficiaries, however many there may be, have written this tablet in
mutual agreement”. his is a Nippur text from Stone & Owen (1991:46-47).
156
In the Old Babylonian/Nippur the term is found in the following texts:
In the text OB Contracts D7 no. 29 15, which is an agreement of the type being discussed,
the term še-ga-ne-ne-ta is reflected. In the damaged text ARN 037 28 the term še-ga-nene dub in-na-[an-sar-eš] occurs as a quasi-adoption agreement with an adoption and
division clause.
The text ARN 045 26209 is in a good condition, recording the term še-ga-ne-ne-[ta], and
the text is a quasi-adoption agreement containing an adoption and division clause.
In an unknown/Old Babylonian/text SAOC 44, 86 3 še-ga-ne-ne[ta] is found a division
agreement, although owing to the damaged text and scribal omissions, one cannot assess
what kind of division agreement it is.
BE 06/2, 24 29 še-ga-ne-ne-ta is a quasi-adoption agreement, containing an adoption and
division clause, while BE 06/2, 28 28,210 using the term še-ga-ne-ne-ta, is a quasi division
agreement including an adoption clause.
In the text BE 06/2 48 33211 containing the term še-ga-ne-ne-ta, is found an agreement
between living parents who divide their estates between their children, subject by means
of a usufruct or lifelong interest.
In the text OECT 08, 11 8212 is a quasi-adoption agreement, including division- and
adoption clauses using the term še-ga-ne-ne-ta.
The following texts in which the term appears comply with the essential elements of a family
209
Recorded quasi-adoption (division) agreement of paternal estate of Iddinya wherein a brother, Damiqilišu, adopted his brothers Ilum-gamil, Mar-e etim, Ilšu-bani and concluded a division agreement. See Chapter
5, under the heading quasi-adoption division agreements.
210
This is a Nippur quasi-adoption division agreement between the adopted father Iquša and his adopted
son Ea-tayyar and biological son Ea-tarum including an adoption clause and a usufruct clause in favour of the
father. See Chapter 5, under the heading quasi-adoption division agreements.
211
See Chapter 5, the methodology chapter. This is a complicated recorded Nippur division agreement
between the living parents Awiliya and Narumtum with their sons, Ibbi-Enlil, Ilšu-ibnišu and Ilima-abi. It seems
that the sons conditionally received the assets of the paternal estate, as beneficiaries of their mother, Narumtum.
Translated and published by Stone & Owen (1991:51-52).
212
The text is a recorded division agreement between adopted father Ibbi-Enlil and his adopted sons
Mannum-mešu-li ur, Namaršu-lumur, Ninurta-muštal and Munawirum. See N10: Nippur text from Stone &
Owen (1991:68-69) no. 31, OECT 8 11, collated by Stone & Owen (1991:50-51).
157
deceased division agreement, and contain some natural elements (legal practices). Especially
the two terms evident to go along, namely še-ga-ne-ne-ta and geš-šub-ba-[ta in-ba]-eš.
These texts are the following:
In MC 3, 51 44 the terms še-ga-ne-ne-ta geš-šub-ba-[ta in-ba]-eš, and in an
unknown/Old Babylonian/Nippur text SAOC 44, 31 25 še-ga-ne-ne-ta in-ba-e-eš
together with a share awarded to a first-born, which when translated, is identified as a
family deceased division agreement.
The text SAOC 44, 42 21 še-ga-ne-ne-ta (še-ga-ne-ne-ta; geš-šub-ba-ta in-ba-e-eš;
giš
banšur-zag-gu-lá) offers a good example of such an agreement.
In text OECT 08, 17 46 še-ga-ne-ne-ta geš-šub-ba-ta in-ba-e-eš is an example of such an
agreement, between brothers regarding the division of the deceased paternal estate.
See text N7 where the text is discussed and elements outlined.
In an unknown Nippur text, N 0968 16, še-ga-ne-ne-ta and this is an example of a family
deceased division agreement.
In N1, N2, N3, N5, N7, N8 and N10 the contractual parties concur in mutual agreement, and
have divided the inheritance by using the term še-ga-ne-ne-ta. In the following Nippur texts,
examples are to be found:
N1 Reverse line 12: še-ga-ne-ne-ta.
N2 Line 22: [še-ga-ne-ne]-ta.
N3 Line 15: še-ga-ne-ne-ta in-ba-eš – “by mutual agreement they have divided the estate
in lots”.
6.2.1.3 I-zu-zu
This term derives from zīsu (zēzu), an adjective which means undivided (held in communallyshared
ownership), also ziztu or zâzu which translates as “divided the shares”. See
Oppenheim (1961: CAD Z,149). Black, George & Postgate (1999:446) refer to zâzu(m),
158
which denotes: to divide or get a share. It is also used in the text-cases of property and estate.
Alternately, the term means: distribute or become separate, distributed or divided. Other
Akkadian words used are: zīzum, zīzūtum, zittu, zīztu, zūzu, zūzam, zūzâ, zā’izānu, zā’iztum,
zu’uzu, zu’uztu, muza’iztu.
This term occurs in Larsa and Sippar, for instance:
In L3, see lines 5-6: mi-it-ha-ri-iš i-zu-uz4-zu, which may be translated that they (the
contractual parties) agreed to the division and divide the estate equally.
are finished.
division).
S1, line 7: i-zu-zu-šu-um zi-zu ga-am-ru – they (the contractual parties) have shared, they
S2, line 2: i-zu-uz-zu – they (the contractual parties) have divided (and agreed to the
In S24, see line 16: i-zu-zu zi-zu ga-am-ru – they (the contractual parties) have agreed to
the division and the division is finished.
6.2.2
Inheritance share clause
6.2.2.1
al-la
In the PSD213 the root word al, means divide and occurs in EC IIIB, Ur III and the Old
Babylonian period. The written terms are al-ha; a-la; al which is translated as “to divide,
deal out, distribute; to open; a secret; to pour away; to sieve; to slink, crawl away; a
qualification of grain”. In Akkadian the words are: barû, halālu, nazālu, petû, pirištu, zâzu,
šahālu.
Thirty-four distinct forms in the PSD214 have been identified, one of which is applicable and
is shown under heading number 1, which is: “to divide, deal out or distribute”.
This term occurs in texts from all three of Larsa, Nippur and Sippar, for instance:
In Larsa:
213
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February 2012.
214
Pennsylvania Sumerian Dictionary http://psd.museum.upenn.edu/epsd/nepsd-frame.htm. Cited 5 February
2012.
159
L1: Line 5: a-la [mi-ig-ra-at-dENZ]U - is the inheritance share of Migrat-Sîn, L1: Line
11: a-la u-bar- dEN-ZU - is the inheritance share of Urban-Sîn and L1: Line 18: a-la ì-
lí-sukkal - is the inheritance share of dIlî-sukkallum.
L2: Line 9: a-la be-le-sú-nu - is the inheritance share of Bêlessunu.
In Nippur:
N1: Obverse 14, 22, Reverse 8: a-la-la – is the inheritance portion of X.
N4: line A8 & B9: a-la-ba – is the inheritance portion.
In Sippar:
S3: a-la ša-at-da-a lukur d utu - is the inheritance share of ṣa-at-da nadītum of ṣamaš.
S4 Line 5: a-la dṣEṣ-KI-ma-an-[sum] – is the inheritance share of dṣeškimansum.
6.2.2.2 Zitti
Black, George & Postgate (1999:449) refer to the Akkadian term ziti as zittu(m) or zīzātu(m);
also zinātu, means share (Sumerian equivalent: a-la, a-la-ba or a-lá). This denotes the
portion of the estate, other assets, the division, or the total to be divided.
In Oppenheim (1961:CAD Z, zittu 1 a, volume 21:139,146,147), the Akkadian term zittu is
outlined. It is a under headings 1 and 4, explained as follows. Under heading 1, it denotes a
share of an inheritance, or an income; while under heading 4 it is the totality of assets of an
inheritance or the division of an inheritance.
Under this heading 1, there are several
references in the Old Babylonian period of which some are discussed:
LH215 paragraph 166:69 a
ū izuzzu, which translates “divide the estate”, and zittišu
which means “inheritance share”.216
L is the abbreviation for the “law collections or cuneiform collection of ammu-r pi”, also known as
the “law code of ammu-r pi”. In other paragraphs of LH 165, 167, 168, 169, 171, 172, 173 and 174 there are
different inheritance case studies.
216
Roth (1995:112-113) translates paragraph 166 as follows: “If a man provides wives for his eligible sons,
but does not provide a wife for his youngest son, when the brothers divide the estate (a ū izuzzu) after the
father goes to his fate, they shall establish the silver value of the bride wealth for their young unmarried brother
from the property of the paternal estate, in addition to his inheritance share (zittišu), and thereby enable him to
215
160
LH paragraph 178:83 the inheritance share zittiša is reflected.
Under heading 4 the term is identified as the totality of assets of an inheritance and the
division of an inheritance.
LH paragraph 170:59 the term zi-it-tim occurs in the context of aplum mār īrtim ina zi-ittim inassaqma ileqqi and translates as: the oldest son, (if he is) the son of the first wife,
(has the right to select his share) from the totality of the assets of the inheritance (see also
TCL 1 104:26).
This term occurs only in Sippar, and not in Nippur and Larsa. For instance in some Sippar
texts:
S5: Lines 4: zitti I-din-dAdad - is the share of Iddin-Adad.
S6: Line 4: zitti - is the inheritance share.
S13: Line 5: zitti ìr-ra-na-ṣir - is the inheritance portion of Irra-n ir.
6.2.3
Beneficiary clause
In this section, discussion of the term ibila follows: this include discussions of variants,
meanings and implications pertaining division agreements.
6.2.3.1 Ibila
In the beneficiary clause, we find the Sumerian word ibila. In the PSD,217 this word ibila is
translated as heir (beneficiary). The word is found in texts from the Early Dynastic IIIb, Old
Akkadian, Lagash II, Ur III, Early Old Babylonian, Old Babylonian, Middle Babylonian and
an unknown period. The written Sumerian words are ibila, ì-bú-la, ibilá and ì-bi-lu. The
Akkadian version is: aplu.
obtain a wife”. Cf. also N1 where in an old Babylonian Nippur family deceased division agreement the brothers
agree to give something to the youngest brother in the conclusion of the division agreement for the same reasons.
217
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February 2012.
161
Fourteen distinct forms have been identified. The first one, “heir” is outlined. In the PSD218,
it is noted as being found in the following texts, with the following word-context, namely:
In Old Babylonian Nippur: ibila (DUMU-NITA) OB Nippur Lu 358a and [[ibila]]
DUMU-NITA2 = ap-lum OB Diri Nippur Seg.6, 23;
In Middle Babylonian/Nippur ibila UM 29-13-771 1 and
In Old Babylonian/unknown [[ibila]] = = TUR-Uṣ = ap-lum OB Diri "Oxford" 442;
In the unknown period ibila CBS 01862 o ii 10.
They are all nominated beneficiaries.
Then:
In Old Babylonian/Nippur ù ibila ni- eš OB Contracts, pl. A3 no. 3 13;
In Old Babylonian/Nippur u4 kúr-šè Ì-lí-sukkal ù ibila-[a-ni] OB Contracts, pl. C6-7 no.
21 11;
ù ibila-a-ni [a-na me-a-bi] OB Contracts, pl. E7 no. 39 5;
ù ibila-a-ni a-na me-a-bi MC 3, 33 16;
ù ibila-ne-ne a-na me-a-bi MC 3, 37 13 and
ù ibila-[a-ni a-na me-a-bi] OB Contracts, pl. E3 no. 32 14;
Old Babylonian/unclear ù ibila-ne-ne a-na me-a-bi MC 3, 47 14;
ù ibila-a-ni MC 3, 48 14;
ù ibila-a-ni [a-na me-a-bi] MC 3, 46 14.
The property is awarded to the beneficiary as described.
Furthermore:
In the text MC 3, 51 43 ibila [dnuska-á]-mah-ke4-ne reflects a family deceased division
agreement and beneficiary (heir), appointed by the term ibila;
appointed with some description of property given;
218
ELA/Old Babylonian/unknown ù ibila-a-ni a-na-[me-a-bi] CBS 07194 17. Beneficiary
In Old Babylonian/Nippur ibila na-bi-den-líl-ke4-ne SAOC 44, 31 24 is to be found a
Pennsylvania
February 2012.
Sumerian Dictionary. http://psd.museum.upenn.edu/epsd/nepsd-frame.htm. Cited 5
162
family deceased division agreement, with the terms ibila la-ma-ša-ta SAOC 44, 37 11; u4
kúr-šè ibila la-ma-ša SAOC 44, 37 16. Old Babylonian ù ibila na-me TIM 04, 18 16; ù
ibila-ne-ne a-na me-a-bi TIM 04, 54 12; ù [ibila-a-ni] a-na me-a-[bi] SAOC 44, 88 13,
where appointed adoption beneficiaries (heirs) are mentioned; and
In unknown/Nippur ibila dnin-líl-zi-mu-ke4-ne N 0968 5; da é ibila dnin-líl-zi-mu-ke4ne N 0968 7;
a-la-ba ibila den-líl-za-e-me-en-e-ne-ke4 N 0968 8, where appointed
beneficiaries (heirs) are mentioned.
In all the city-states (Larsa, Nippur and Sippar) this term, ibila occurs. In this thesis and
discussions regarding inheritances, the option was either to refer to “beneficiaries” or to
“heirs”.219 Both convey, for the purposes of this study, the same meaning; hence, the word
“beneficiary” is used in this thesis.
he word “heirs” derives from early Roman law. It developed in its meaning and application.
Today the word is still in use in most of the legal systems of the world. Today there may be a
superficial use of legal words or terms, to translate it from Sumerian and Akkadian into our
language, and consequently, a possible misunderstanding of the meaning of the word/term, in
the light of the importance of Roman law’s influence in some of the present-day legal
systems. Notwithstanding this, we can look at early Roman law, and the mechanisms of its
terminology and legal institutions, and re-evaluate the Akkadian and Sumerian texts, using
that framework of mind. It is logical that whenever we reflect on another culture, we do it
from our own perspective and worldview.
In the early Roman law, the named “community of heirs” was the mechanism of inheritance,
which consists of sui heredes, who as a family unit work together as a “co-operative body
with equal rights”. This co-operative body, a consortium, was called ercto non cito, and it
was “probably a relationship in the family law rather than a mere community of property”.
General definition of inheritance the researcher’s own definition): Inheritance is a practice laid down by
social norms, rules of authority and/or a disposition by the deceased, in accordance with his or her choice, either
written or orally, by which the assets or part of the assets of the deceased, at the time of his/her death must
devolve upon the heirs or beneficiaries who receive ownership fully or partly, for a certain period of time, or for
their own disposal as the owner of the whole or a part of communally-shared property. Inheritance thus goes
hand in hand either solely with private ownership, or communally-shared property, that forms part of a family
estate, and is the property of the family under certain rules and conditions, which either entails that the testator/
deceased possess the ultimate power to devolve the property to others or, by way of a society’s rules and norms,
ownership accrues under certain circumstances within a certain group or to a specific person.
219
163
The name ercto non cito derives from erctum ciere, which means “to request the partition”; in
a grammar contest it denotes the opposite, which is “when the partition is not requested”
(Kaser 1984:367). The sui heredes were all free persons, and were all the family heirs who
would inherit the estate at the time of the death of the estate owner. Although in the early
Roman times, the families remained in one community of heirs, called the consortium, until
partition. At later times, the family unit, at the time of the death of the owner of the estate
(paterfamilias), broke up into “many familiae”.
Each of their shares was calculated in
accordance with stems (stripes). One stem could include the children, and his wife, who
could share equally in the inheritance (Kaser 1984:331, 337).
Today we only encounter the remnants of the Roman law’s word “heirs”, which does not
convey the same meaning, although it displays a long development through the ages, with
discrepancies in meaning and application. When a Western scholar uses the word “heir”, it
entails the following definition:
An heir inherits the entire inheritance, a proportional part of it, a particular part
of it or the residue of the inheritance. A testator may nominate only one heir or
he may nominate several heirs. The heir may qualify to benefit regardless of
whether succession takes place in terms of a will, the intestate succession or
whether it takes place in terms of an antenuptial contract, as long as he inherits
the whole, the residue, a proportion or a particular part of the inheritance (De
Waal & Schoeman-Malan 2008:132).
With regards to Mesopotamia, Postgate (1992 96 opines, when discussing “inheritance
documents” in ancient Mesopotamia (which in context seems to refer to division agreements),
that property rights were “usually vested in the simple family unit”.
e assumes that the
underlying principle is the “patrilineal system” whereby inheritance by male offspring of the
deceased took place (Postgate 1992:96-97). However, there are “two major modifications of
male succession rule”. One modification is concerning the daughter of the estate owner,
namely a donation to her, during her lifetime, not accounted for in a division. The other
modification referring to a dowry and the support of a priestess (Postgate 1992:97). The
status, obligations and roles of these women differ, as contractual parties and beneficiaries,
under the circumstances of “modifications” to the rule.
hus in Old Babylonia, the term ibila
includes different heirs/beneficiaries, and their obligations in a family deceased division
agreement.
164
hese “modifications” to the general rule of male succession, are now outlined. Special
attention is given to the sisters and their different roles regarding their status in the family and
Babylonian life.220
In the following Old Babylonian family deceased division agreements from Larsa and Sippar,
the sisters of the contractual parties and/or daughters of the deceased owner are contractual
parties to the agreement, namely:
Larsa:
In L1, L7, L8 sisters (it is unknown whether they were priestesses) are contractual parties,
comprising three of the ten agreements of Larsa.
Sippar:
In Sippar, in eleven of the twenty-six agreements the sisters are contractual parties. The texts
are S3 (nadītum of ṣamaš , S5 (kulmašītum), S6 (ḳadištim), S7 (qadištu), S9 sister, S10
(ḳadištim) and a ṣamaš priestess, S1 (zêrmašîtu-priestess), S16 sister, S17 (sal-me priestess
of ṣamaš , S19 (sal-me priestess of ṣamaš and S20 (sal-me priestess of ṣamaš).
Beneficiaries of inheritances in general, also include amat (servant), almattum (widow) as
well as the group of priestesses, namely nadītum, kulmašītu, ugbabtu and qadištu, zêrmašîtu
etcetera. These women, owing to their specific role and status, will inherit and conclude an
agreement with their brothers and/or sons in different ways. In this instance, regarding a
nadītum, see a letter from a nadītum at Sippar, which reads:
(I swear) by my lady, with my hands clasped, until recently I had not heard
the wording of my tablet, and indeed up till now my tablet was deposited
with my…Since my father went to his fate, my brothers have not given my
dowry on the tablet. Now the word is – let us speak frankly – that a nadītum
whose brothers do not maintain her may give her inheritance where she will.
In L the paragraphs dealing with priestesses’ rights are 178, 179, 180, 181, 182 and 183. Cf. Jackson
(2008:118-122) regarding the paragraphs in the different law collections dealing with property, inheritance and
adoption; especially from page 119 wherein he discusses the inheritance of a dowry in the different law
collections, mainly L , LL, M L and L, as well as widows’ and children’s rights, on pages 1 0-122. On
pages 122-124 he discusses adoption in relation to inheritances and makes a comparative study between LH, LE,
LL and HL.
220
165
I will appeal to the judges (Postgate 1992:98).
In this letter reflecting the Sippar practice in division agreements 221 and other agreements,
there are an explicit consensual contractual provision between a priestess sister and other
siblings (obligors) regarding her maintenance rights. By agreement, the obligors, usually
brothers, contractually agree to provide their priestess sister with maintenance support. They
subsequently have a heavy financial burden placed upon them in the compliance with their
contractual duty.
The aim of the contractual maintenance provision is to promote the
well-being of the priestess sister to the subsequent disadvantage of the obligors. The only
positive outcome for the obligors is that after a lifetime of compliance with maintenance
support to their sister, they receive the dominium-property free from constraint, at the time of
her death. It is an open question what the rationale for the institution of the priestess is,
including the obligation of her brothers to support her: is it a reflection of a religious ideal or
serves as a function for the preservation of family capital?
Stol (1995:107) considers that the religious idea of a nadītum can be explained in terms of the
existence of cloisters in the Old Babylonian period, rather than an economic motive to
preserve the family capital. Rich, even royal families sent their daughters to this cloister to
pray and make sacrifices on behalf of their relatives, as we can conclude from their letters
(Stol 1995:108).
owever, there are large parts of the archives of the cloister of ṣamaš and
Aya in Sippar where it is evident that the nadītum owned houses, fields, orchards and have
tenants.
Some nadītum possessed large estates with a steward looking after them and
numerous staff working for them (Stol 1995:139).222
Conversely, Harris (1975:306) opines that the nadītum played an important role in the
economic life, and enter into various business transactions. This was part of the rest of the
economic milieu of the Old Babylonian period where private individuals own great portions
of property, and the nadītum were mainly from prominent wealthy members of society,
owning private property.
arris 197
07 suggests that for the “interest” of the wealthy
221
See texts S5, S17 and S19 of Sippar, Part C.
Cf. Harris (1975:302-312, 315-324) for detail explanations of the function and role of the nadītums who
live in “special groups” and with this have “some special relationship to a certain deity”. he nadītums of
ṣamaš live in a cloister, who was surrounded by walls, and nadītums had “limited contact” with others outside of
the cloister (Harris 1975:302-303). This cloister or gagûm existed even in the pre-old Babylonian period and the
term gagûm, corresponds with the words “place of hiding” or “detention” arris 197 0 -304). The houses
were situated within walls surrounding the complex; and include houses of the nadītums, cloister officials, other
cloistered women; as well as certain staff such as female weavers employed by the cloister (Harris 1975:304).
222
166
families, the nadītum institution were used to “prevent the diffusion of their wealth which
occurred when a girl married and took her dowry to another family”. The rationale for the
nadītum institution lies therein that when a nadītum enters the gagûm, she receives her dowry
as support and at her death her dowry will return to her biological family, preventing thus the
property of her family to go to her husband’s family
arris 197
07 .223 Regarding the
religious mind-set of the nadītum, Harris (1975:307-308) opines that the nadītum’s father-in
law and mother-in-law is the god/goddess, and to substantiates her statement she refers to a
nadītum’s letter stating “may my Lord ṣamaš and my Lady
ja keep you well”.
In addition, to a woman’s position as beneficiary and/or contractual party, Greengus
(2001:264) refers to a court case from Old Babylonian Sippar MHET 2, 4,393 and comments
that sometimes “personal and sympathetic feelings” occur. MHET 2,4,393 is a court record
where there is a division of eighteen ikû of fields, originally the property of Warad-Sin who
bequeathed it to his daughter ṣat-Aja. She sold part of the property consisting of three ikû,
and the remainder of fifteen ikû was left to the daughters of her three brothers. Prior to
transfer, ṣat-Aja died and one of her brothers Sin-gamil, was the beneficiary of the property in
terms of inheritance legal tradition; however he took “pity” on the daughters, and stated that
fifteen ikû was too small to support all three women, so he would support his own daughter.
Furthermore, Sin-gamil decided to support his nieces by allocating an additional five ikû to
them (Greengus 2001:264).
Nevertheless, a “less considerate” family is depicted in the court case of the document MHET
2,4,459. In this case, a brother sustained his nadītum sister for an extended period, by working
in the fields and orchards that formed part of her dowry, which he held on her behalf. On his
death, his four sons who “starved her for two years”, inherited these properties.
The
sister/nadītum asked for relief from the judges, who interrogated the nephews, and decided to
give her full control and management over her property during her lifetime (Greengus
2001:264).
A nadītum tends to live longer. This was due to secluded living conditions, for society was
often plagued by periodic epidemics; and also as a result of her celibacy, she was not
The nadītum (Sumerian lukur) priestesses were not allowed to have children, although they were allowed
to married (Harris 1975:305-306).
223
167
subjected to the complications of childbirth. This in return was problematic for her support,
for both her family and herself must support her. Her other siblings lifespans were shorter,
and generally it was the responsibility of her biological brother/s to provide her with support.
If she was not supported for whatever reason, her obligors may in certain circumstances
forfeit their inherited share in the property, or the nadītum may secured her financial position
by adoption. Often the adoptee is unrelated. This adoption agreement serves as her support
during her lifetime, and in return the adoptee becomes the heir/beneficiary of her deceased
estate; or in case of a slave, the slave earned his or her freedom (Harris 1975:309).
Regarding the other types of priestesses, Westenholz (1989:245-265) discusses the story of
Tamar in the Old Testament together with the meanings of the words qĕdēša, qadištu and
sacred prostitution in Mesopotamia.224 The root qdš appears in a noun form in Mesopotamia
in the feminine qadištu/qaššatu/qašdatu, and refers only to women of a certain status, of
which the meaning takes different emphases (Westenholz 1989:250).
Westenholz (1989:251) states that the qadištu-women, together with “other classes” such as
“the nadītum, kulmašītum, ugbabtu” were “regulated by codes”; these classes “were organized
into special groups, each having a special relationship to a male deity, and whose sexuality
was controlled by celibacy or marriage”.
n the other hand the “classes” of the arimtu,
šam atu and kezertu” were “not regulated by the codes”, and “had a special relationship to a
female deity and whose sexuality was unregulated” (Westenholz 1989:251).
Westenholz (1989:252) illustrates the different functions of the qadištu by referring to certain
sources.225 She derived a generalised opinion from the “Old Babylonian legal texts” that they
could own property, marry, bear children and act in a nursing capacity. 226 She refers to a
Westenholz (1989:250-251) refers to the qadištu in the context of the Tamar story of the OT and cites
Benno Landsberger’s Die Serie ana ittišu VII iii7ff. The translation of this text is as follows: “Afterward he took
a qadištu in from the street; because of his love for her, he married her even though; she was a qadištu-woman.
The qadištu-woman took in a child from the street. At the breast with human milk, [she nursed him]”.
Westenholz (1989:251) concluded from this passage that the qadištu-women came from the street, and in this
society was out of bounds for “organized households”. hough she contended that the function of the qadištu
must be defined, however that a clear definition seems to be a difficult in terms of the available data. It seems
that priestesses functions differ in “period and area” Westenholz 1989 1 .
225
Cf. discussion by Harris (1975:328-332). The qadištu was not cloiseterd, they were allowed to marry and
to have children, and although it seems that some remain unmarried and maintain their own households (Harris
1975:329).
226
Harris (1975:303) discusses the financial position of one qadištu. This is text S7, which is a recorded
division agreement of the parental estate of Rîbam-ilî and an agreement between Erištum, a qadištu priestess and
her sister Apíltasà. Especially line 7: nin-a-ni i-zu-zu which translates as “the sisters agreed to the division”.
224
168
certain Inbatum in Nippur from the Isin-Larsa period that “has her own domicile and personal
household”.
hey appear in the “state ration lists” while in Larsa, King Sîn-iddinam forbade
the installation of the qadištu-women “in the place of the gods”. In a certain Mari text a
qaššatu, (as by form of a qadištu) in a census of women, a distinction was made between an
amat (servant), almattum (widow) and a qadištu-woman. Westenholz contends that the
amat women “were under the control and authority of a man, with the exception of one who
is under the control of qadištu-women”. It seems that the almattum and qadištu-women227
are “apparently under their own control and authority” (Westenholz 1989:252).228
These various women have different rules applied to them, although their roles and positions
in ancient Mesopotamia were not always certain. Some scholarly opinions held that their
purpose were to serve in the continuation of the patronage estate, however this is an overall
debating issue.229
Thus the qadištu may enter into a division agreement. Harris (1975:330) opines that because the qadištu Erištum
received only a small house of 1 sar, this “reflects the fact that these women were not from wealthy families, as
were many of the other classes of women”.
227
Difficulties have arisen from perceptions deriving from the remarks of Herodotus in his “Historia”
(1.199) and Strabo in his “Geography” (16.1.20), and others whom Westenholz (1989:261) considers
“considerably biased”. For instance, authors refer to erodotus who biases remark the followings a “Babylonian
woman, who once in her life has to offer herself to a stranger for money in the temple of phrodite”. Scholars’
other definitions include “a priestess whose caring for the gods included offering them sexual services” and “a
lay-woman who participated in organized, ritual sexual activities” Westenholz 1989 61 . The misconception
of the role and definition of the different classes, stems also from the “ ebraic or Judean view towards ancient
Babylon in the world of the ld estament…through numerous references to Babylon, both in the historical and
in the literary texts” Westenholz 1989 64 . Westenholz 1989 6 concluded with the remark “It is the
Greeks and their denigration of the female sex, and of barbarians that caused them to lump together the negative
attributes of both groups in their description of Babylon and its cultic rites”. When one considers our own
definition and perception of prostitution, the “Oxford English Dictionary” defines it as “the action of
prostituting or condition of being prostituted…the offering of the body to indiscriminate lewdness for hire”
(Westenholz 1989:261). Some scholars, such as Fisher 1976 and Lerner 1986 attempt to “differentiate ‘cultic
sexual service’ from ‘commercial prostitution’; the former discriminating and without payment, and the latter
indiscriminate and with payment” Westenholz 1989 262). Westenholz (1989:262) believes that in
Mesopotamia, there was a group that fitted the commercial prostitution-genre. This includes that of the arimtu,
who usually work in the tavern. Westenholz 1989 6 believes that “controlled coitus within the sacred sphere
is not prostitution”, and does not constitutes “ritual promiscuity”, and therefore the qadištu were not sacred
prostitutes.
228
Westenholz (1989:252) gives an example from the Old Babylonian literary texts, in the Atra-hasis
Babylonian Flood story “…let the midwife rejoice in the house of the qadištu-woman where the pregnant wife
gives birth” and concludes that the qadištu-woman seems to “live alone in a special hut where she presided over
childbirth and wet-nursing”. She makes the further remark that the midwife will attend to the pregnant woman’s
“physical needs” giving birth, whereas the qadištu-women fulfil the function of the “spiritual requirements of the
birthing” Westenholz 1989 252). Westenholz (1989:253) refers to the Old Babylonian hymn of Adad in the
composition of “The Contest between the Tamarisk and the Palm” where the Palm “entreats”: “Come let us go,
I and you, to the city of Kish… fter the qadištu-woman has sprinkled water, she takes […] and then worships
and holds a festival”. Westenholz (1989:253) contends that the qadištu-woman therefore performed a “ritual
function, perhaps in a purification ceremony in Old Babylonian Kish”. Cf. Westenholz (1990).
229
Cf. Frymer-Kensky’s contributions in “Reading the Women of the Bible: A New Interpretation of Their
Stories” 00 , “Patriarchal Family Relationships and Near Eastern Law” 1981 and her 1998) introduction
to the compilation of essays on “Gender and Law in the Hebrew Bible and the Ancient Near East”.
169
Regarding the continuation of the patronage estate, Ben-Barak (1980) refers to an Old
Babylonian text from Nippur, which reads “If a man dies and he has no sons, his unmarried
daughters shall become heirs”. According to Ben-Barak (1980:23), this situation seems to be
an “accepted practice”.
However, in Old Babylonian litigation texts it seems that the continuation of the patronage
estate was not an established settlement, and that the patronage home could be sold to another
party, by choice of the father. Furthermore, numerous documents consisting of wills and
family deceased division agreements have been found. In them, it seems that the “normal”
intestate succession is not always followed. Here are some examples that depart from the rule
mentioned.
In this regard, see an inheritance text deriving from Mari in the Old Babylonian period,
wherein the testator set out the adoption of a boy and the inheritance of his estate:
This text TCL XXXIV no. 1, ARMT VIII, no. 1 reads as follows:
Yahatti-el is the son of Hillalum and Alitum. He shall rejoice in their joys
(5) and commiserate in their miseries. Should Hillalum, his father, and
Alitum, his mother (ever) say to their son Yahatti-el ‘You are not our son’,
(10) they shall forfeit house and belongings. Should Yahatti-el say to
Hillalum, his father, and to Alitum, his mother 1 ‘You are not my father;
you are not my mother’, they shall have him shaved, and shall send him for
money. (As for) Hillalum and (20) Alitum – regardless of how many sons
they shall have acquired – Yahatti-el is primary heir, and shall take a double
share of the estate of Hillalum, his father. (25) His younger brothers shall
divide (the remainder) in equal shares. Whichever (among the brothers)
shall contest (this) against him, will (be deemed to) have eaten the taboo of
ṣamaš, Itur-Mer, ṣamašhi-Adad, and Yasmah-Adad, (30) and shall pay
Contributions were also made by Eugene Fisher 1976 in “Cultic Prostitution in the Ancient Near East: A
Reassessment”; Gerda Lerner 1986 in “The Origin of Prostitution in Ancient Mesopotamia”; Zainab Bahrani
(2001), etcetera. These scholars differ in their focus, object of inquiry, and methods that include literary analysis
versus historical reconstruction. In examining gender, they investigate class, ethnicity, and Jewish nationalism,
using comparative perspectives and postcolonial and cultural theories. See also Matthews 1998 in “Gender and
Law in the Hebrew Bible and the Ancient Near East”. his is a compilation of ten essays on issues of gender
and law. Matthews (2003:19-25) advocates developed methodologies and refer to recent developments in
feminist and gender archaeology which now received more attention. The new development approaches focus
on certain “concepts and constructions of women, sex and gender in historical and art historical terms”.
Matthews 00
notes that the aim is not so much to emphasize woman’s role in society, but to point out the
different interpretation of “masculinist approaches” and a new look in the human relationships and roles in
Mesopotamia, using a holistic approach. Matthews (2003) concluded that textual sources cannot alone solve
ambiguities and interpretive difficulties associated with understanding historical periods, and if combined with
archaeological data, can have better results.
170
three and one-third minas of silver, the penalty in a capital case. Eighteen
witnesses. Month of Hibirtum, 28th day; eponymy of Asqudum (Pritchard
1955:545).
Litigation over inheritance in the Old Babylonian period is evident in Text A: CT II, 47
translated by Schorr VAB v no. 261 and Text B CT XLV, No 18 HG III no. 708.
Text A: CT II 47 as transcribed and translated by Schorr in VAB no. 261 reads as follows:
Concerning a house plot of 1/3-sar in area within the cloister, adjoining the
house of Lamassi the hierodule, the full share of a jointly held prior estate
which Amat-ṣamaš daughter of Supapum (5) had bequeathed to her
(adopted) daughter, the (natural) daughter of Sin-eribam, Nidnusha and
ṣamaš-apili, sons of Iddinu-nim (10) brought suit against the daughter of
Sineribam, stating thus ‘Amat-ṣamaš did not bequeath to you any house
whatever, and executed no document in your favour; upon her death, you
yourself drew up (such a document)’, (15) that is what they stated. They
(i.e., the litigants) pleaded before Sumu-Akshak. For (the purpose of
hearing the testimony of her i.e., the defendant’s male and female
witnesses, the Standard of ṣamaš, the Saw of ṣamaš, and (20) the Serpent of
Ishara entered the cloister. Her male and female witnesses having (25)
testified that she had, while still alive, bequeathed (to the defendant) the
house and drawn up the document, the judges proceeded with the case; the
judge(s) pronounced the penalty to be imposed upon them (i.e., the
plaintiffs); the judge(s) cast...upon them (30) Nidnusha, ṣamaš-apili, and the
brothers of Amat-ṣamaš – as many as there may be who held joint shares in
the earlier (estate) – may not re-institute suit against the daughter of Sineribam. If any among the brothers of Amat-ṣamaš – as many as may be
counted – should (again) (35) institute suit, since their case has been
terminated, it is they (i.e., the plaintiffs) who will be held responsible. A
legal case before ṣamaš. Names of three or four judges (Pritchard
1955:543).
In addition, text B CT XLV no. 18 as transcribed and translated by Schorr in HG III no. 708
reads as follows:
(Beginning lost)...(After) [Nidnusha and ṣamaš-apil]i, his brother, [the sons
of] Iddinunim had instituted suit, (and) the judges tried the case in the
temple of ṣamaš, (and) (5) drew up a non-contestable document in favour of
Lamassi, Beltani, Iltani, and the daughter of Sin-eribam, Nidnusha son of
Iddinunim once again filed suit. Sumu-Akshak the burgomaster of Sippar
(10) and the judges of Sippar implemented judicial process: Because he had
again filed suit in face of a duly executed non-contestable document, they
(i.e., the authorities) shaved half his head hair, (15) pierced his nose,
extended his arm(s) (and) marched him around the city. His contest and suit
are terminated. Never again shall (20) Nidnusha son of Iddinunim bring suit
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against Lamassi, the votary of ṣamaš, daughter of Puzur-Akshak, Beltani,
the votary of ṣamaš, daughter of Manium, Iltani, the votary of ṣamaš,
daughter of Irra-gamil, and the daughter of Sin-eribam, with respect to
anything which Amat-ṣamaš, the votary of ṣamaš, daughter of Supapum
had (25) bequeathed to them, from chaff to gold. e may not plead ‘I have
forgotten this’. Nor shall the brothers of Amat-ṣamaš, as many as there may
be, bring suit against them. Because Nidnusha (30) has terminated their
case, Nidnusha will be held responsible for their (future) contest and suit.
They swore the oath by ṣamaš, Marduk, Sinmuballit, and the city of Sippar.
Names of witnesses (mostly destroyed) (Pritchard 1955:544).
Text B seems to revolve around another case, but the judges, in the light of their sentence in
the previous case and the evidence, lay down that as per the first instance, the plaintiff did not
succeed in proving that his allegations were severely penalised. It seems that in this case,
Amat-ṣamaš bequeathed certain goods to Lamassi, Beltani, Iltani, and the daughter of
Sin-eribam. Just as in tablet A, which concerned a house plot bequeathed to the daughter of
Sin-eribam, the will was again contested: this time only by one brother, after the decision of
the court was that he could not file suit again. As with the case in the first instance, the
plaintiff was unsuccessful in proving his claim and was severely punished. Furthermore, any
other brother was forbidden to file suit against these four women: Lamassi, Beltani, Iltani, and
the daughter of Sin-eribam.
A will was found in Ugarit RS 8.145; herein the testator, bequeathed a large estate to his wife
and it seems that he delegated his powers of appointment, for choosing the ultimate
beneficiary (heir) of the estate, to his wife. She could choose which of the sons would inherit
the estate. The testator made these provisions to prevent his sons from contesting the content
of the will, and “abusing their mother” by instituting a huge fine and the forfeiture of the
estate with the symbolic words, uttered by the testator, “he shall set his cloak upon the door
bolt, and shall depart into the street”. Furthermore, the sons must win their mother’s goodwill
so that they could become the ultimate beneficiaries of the estate. The text reads:
s of this day, before witnesses, Yarimanu spoke as follows ‘Now
therefore, (5) whatever I possess (and) that which Bidawe acquired together
with me (to wit): my large cattle, my small cattle, my asses, my male slaves,
my female slaves, my bronze bowls, bronze kettles, (10) bronze jugs,
baskets, the field of Bin-Harasina (bordering upon the Raˈabani stream – I
have bequeathed to Bidawe, my wife. And now therefore, my two sons (15)
– Yatlinu, the elder, and Yanhamu, the younger – whichever of them shall
bring a lawsuit against Bidawe, or shall abuse Bidawe, (20) their mother,
shall pay 500 shekels of silver to the king; he shall set his cloak upon the
172
doorbolt, and shall depart into the street. But whichever of them (25) shall
have paid respect to Bidawe, his mother – to that one will she bequeath
(the possessions)’. Five witnesses and the name of the scribe. (Pritchard
1955:546).
In an Old Babylonian Nippur quasi-adoption agreement, a mutual agreement is concluded
regarding the division of the paternal estate of an adopted father Ilšu-bani, and his newly
wedded wife Mu additum, together with her biological children from a previous husband of
Mu additum.
hese children are now adopted by Ilšu-bani: Ninurta-muballi , illi-Ištar and
Girni-iša, and provisions are made regarding the division of the estate. The text reads thus:
Ilšu-bani has married Mu additum. Ilšu-bani has (taken) from Mu additum
(as his heirs/sons) Ninurta-muballi , illi-Ištar, and Girni-iša, the sons of
Mu additum. An x-sar house plot next to the house of Ipqu-Damu son of
Naram-Sin and next to the house of Ili-iddinam son of Lumur-ili; an x-iku
field plot with standing plants, beside the plot of Ipquša son of Sin-magir;
an x-sar orchard plot with standing trees, (property of) the palace, in the [
]-na irrigation district, beside (the plot of) Iddatum son of Bur-[ ]; [an x-iku]
10-sar orchard plot with trees standing, by the canal [ ], beside (the plot of)
Ili-ippalsa son of [ ] and beside the plot of Ipquša son of Sin-magir; an xsar orchard plot in front of the meadow, in the Nanga irrigation district,
beside (the plot of) Ili-ippalsa and beside the plot of Ipquša son of Sinmagir – (all this) he has turned over to Mu additum his wife, Ninurtamuballi , illi-Ištar, and Girni-iša. fter Ninurta-muballi the eldest brother
has taken his preference portion, they will divide it equally by casting lots.
If Mu additum says to Ilšu-bani her husband and (if) Ninurta-muballi her
son, illi-Ištar, and Girni-iša say, ‘You are not my husband, you are not my
father’, they will forfeit house, field, and orchard property. nd if Ilšu-bani
says to [Mu additum] his wife and to Ninurta-muballi , [ illi-Ištar], and
Girni-iša, ‘You are not [my sons]’, he will forfeit [house, field, and orchard
property. In mutual agreement] they have sworn in the name of the king
(Stone & Owen 1991:52-53, PBS 8/2 155).
The text can be divided in terms of the following important clauses:
Adoption clause (See Nat 1): Ilšu-bani married Mu additum. Ilšu-bani has (taken) from
Mu additum as his heirs/sons Ninurta-muballi ,
illi-Ištar, and Girni-iša; the sons of
Mu additum.
Other: proper description of assets (See I 3): An x-sar house plot (located) next to the
house of Ipqu-Damu son of Naram-Sin and (located) next to the house of Ili-iddinam son
of Lumur-ili; an x-iku field plot with standing plants, (located) beside the plot of Ipquša
173
son of Sin-magir; an x-sar orchard plot with standing trees, (property of) the palace, in the
[ ]-na irrigation district, beside (the plot of) Iddatum son of Bur-[ ]; [an x-iku] 10-sar
orchard plot with trees standing, by the canal [ ], (located) beside (the plot of) Ili-ippalsa
son of [
] and (located) beside the plot of Ipquša son of Sin-magir; an x-sar orchard
plot in front of the meadow, in the Nanga irrigation district, (located) beside (the plot of)
Ili-ippalsa and (located) beside the plot of Ipquša son of Sin-magir.
Division and casting of lots clause (See Nat 3): (all this) he has turned over to
Mu additum his wife, Ninurta-muballi , illi-Ištar, and Girni-iša.
fter Ninurta-muballi
the eldest brother has taken his preference portion, they will divide it equally by casting
lots.
Sanction clause: If Mu additum says to Ilšu-bani her husband and (if) Ninurta-muballi
her son, illi-Ištar, and Girni-iša say, ‘You are not my husband, you are not my father’,
they will forfeit house, field, and orchard property.
nd if Ilšu-bani says to [Mu additum]
his wife and to Ninurta-muballi , [ illi-Ištar], and Girni-iša, ‘You are not [my sons]’, he
will forfeit house, field, and orchard property.
Agreement (See E 4): še-ga-ne-ne ta – they are all in mutual agreement
Oath clause (See Nat 7): they have sworn in the name of the king.
Hence, while the continuation of the patronage estate through the male succession line was a
general practice in certain circumstances, it was not an established settlement. Some departing
from the general rule took place, for example:
adoption, which may include slave/s and stepchildren,
testamentary powers of delegation given to a wife, to appoint later beneficiaries. With this
preventing the sons from contesting the content of the will, and “abusing their mother”.
contractual capacity of women in certain instances, to make their own wills and owing
their own property. It seems that in certain instances the property’s value, motivate the
contesting of a will’s validity.
duty to support a sister, which would place a extra burden on the patronage estate and may
lessen the value of the estate. Sometimes with non-compliance of support, the patronage
174
estate was forfeited.
It seems that reasonableness, caring and concerning for the welfare of women, and even
stepchildren, were sometimes factor/s in the inheritance law traditions.
6.2.3.2 Summary
In conclusion the ibila, if translated as heirs/beneficiaries, are not necessarily only the natural
sons of the deceased father, excluding the daughters and stepchildren. Varying time-periods
and places, as well as family, social and economic circumstances, may apply different rules of
succession regarding the continuation of the paternal estate, or the transfer of the family estate
property to adoptees, daughters and sons in different juridical relationships.
6.3
REGULAR NATURAL TERMS IN DIVISION AGREEMENTS
6.3.1
Bringing in (sale) – clause (Nat 2)
The búr clause states that one contractual party will pay equally to his brother/s.
In Sjöberg (1984:191,193-194) búr as a verb, under the heading E, number 4, denotes “to pay
in exchange, to compensate”. he description applicable to the translations in Part C, and a
family deceased division agreement are as follows:
In the Old Babylonian period, these refer to “ B exchange and partition documents” Sjöberg
1984:193):
mu é é-e nu-ub-da-sá-a x gín x še kù-babbar PN1 PN2-ra in-na-an-búr translates as
“because house for house had not the equivalent (values) (in-na-an-bur2), PN1 paid PN x
shekels, x grains of shekels”, TIM 4 1, PBS 8/2, OECT 8 18, BE 6/2.
Another example is, 6 gín kù-babbar mu diri-é-a ù á-kúš (-ù)-é-a PN1-ke4 PN2-ra inna-an-búr, translates as “PN1 has paid PN2 6 shekels of silver for the balance (in-na-anbúr of the house and the expenditure of work for the house”, TIM 4 4.
The “bringing in” term is reflected mainly in the Nippur texts N1-6, 8 & 9; the term variant
usually contained in the text is: šeš-a-ne-ne-ra in-na-an-búr, “he paid in balance to his
brothers”. The búr term was not mentioned in the Larsa and Sippar texts, however in 30% of
175
the Larsa texts and 3.8% of the Sippar texts, in context, the “bringing-in” practice, occurred.
6.3.2
Division by lots - clause (Nat 3)
Division by lots is denoted by two different terms, namely the Sumerian term
giš
šub-ba-ta,
which mostly also collocates, with the terms še-ga-ne-ne-ta (in mutual agreement) and in-baeš (to divide). This occurs mainly in Nippur N1,2,4,5,7,8,9,10 and one text in Sippar S26 as
shown in Part C. There are two of the ten texts of Larsa in Part C wherein this term was used,
namely L5 and L10. In two other texts the other derivative in Akkadian is used, namely isqu
in L6 and L8.
Firstly, the term for division by lots, from the Sumerian word, is discussed namely giššub-bata:
In PSD230 it is given as ĝeššub [LOT] (32x: Ur III, Old Babylonian) writing as ĝeššub, meaning
“lot, share” with the kkadian version isqu. Eleven distinct forms are attested:
ĝeš
šub, ĝeššub-
ba-ta, giššub-ba-zu, ĝeššub-ba, ĝiššub-ba-za, ĝeššub-e, mu-šub-ba ĝeššub-bi, ĝiššub-ba-ĝá, ĝiššub-ba-ni and ĝeššub-zu-šè.
Under heading number 1, the term is translated as “lot, share”.231 This term is reflected in the
following Old Babylonian text in accordance with PSD; and the researcher have arrived at a
definition regarding which type of division agreement it entails, namely:
ELA/Old Babylonian/Nippur [geš]-šub-ba šu ba-an-ti-eš CBS 02295 6 is an family
deceased division agreement between brothers.
ELA/Old Babylonian/unclear še-ga-ne-ne-ta geš-šub-ba-[ta in-ba]-eš MC 3, 51 44 is a
family deceased division agreement, containing a preference portion, wherein a few
allocations were made regarding temple offices. There are a number of Nippur family
deceased division agreements, wherein such allocations were made, regarding the holding
of such offices, for certain periods of time (cf. Nippur texts in Part C).
230
Pennsylvania Sumerian Dictionary. http://psd.museum.upenn.edu/epsd/nepsd-frame.htm. Cited 5
February 2012.
231
See also ETCSL: ĝiš-šub-ba=lot.
176
Unknown/Old Babylonian/Nippur geš-šub-ba-ta in-[dab-bé-eš] SAOC 44, 35 11 is a
family deceased division agreement including an inheritance share–clause, a-la-ba.
Unknown/Old Babylonian/unknown geš-šub-ba-ta in-ba-e-eš SAOC 44, 42 22 is a
family deceased division agreement containing the inheritance share a-la-ba, wherein
the eldest son receives a preference portion
giš
banšur-zag-gu-lá, reading with še-ga-ne-
ne-ta, the clause of mutual agreement.
še-ga-ne-ne-ta geš-šub-ba-ta in-ba-e-eš OECT 08, 17 46 is a family deceased division
agreement wherein the two brothers by means of the inheritance share clause,
a-la
mutually agree to a division by lots.
The Akkadian variant isqu translates as “lot; share” and is now discussed:
The Akkadian term isqu is in Oppenheim (1960:CAD I,198-199,202) outlined. It is a subject,
and under heading 1, may be explained as follows: (išqu, ˹šqu) it is a lot, which as a device
determines a selection cast by the beneficiaries. During the Old Babylonian period, it is
distinguished in the texts by the following contexts and terms:
ì-ba-e-ne-gišsub-ba ì-š[ub-b]u-ne translates as “they made the division of the property
and cast the lots (to distribute)”, Jean Tell Sifr 5:9; and
še-ga-ne-ne-ta
giš
šub-ba-ta in-ba-eš which translates as “they made the division
according to mutual agreement by (casting of lots”, PBS 8/1, PBS 8/2, OECT 8 17, BIN
7 71.
In addition, there are the Akkadian variants namely ina mitgurtišunu is-qá-am iddûma (Jean
Tell Sifr 44); also ina mitgurtišunu ina is-qí-im ilqû translates as “the sons of PN have,
according to mutual agreement, taken (their described shares) by (casting lots” (Oppenheim
1960:CAD I,202). According to Oppenheim (1960: CAD I,202) “the semantic range of the
term isqu is conditioned by the Akkadian, as well as by the Sumerian background”.
The terms reflect different ways regarding the assignments of the objects. In the Akkadian
variant when looking at ussuqu under ˹sēqu, it “refers to the aspect of an assigned object”.
177
With the Sumerian variant, the term
giš
šub-ba refers to the casting of a lot, which is literally
wood, and this “indicates the way in which these assignments were made, either in fact or in
theory”.
here is a “nuance of fate” in the Sumerian proverb giššub ús-sa-ab, which translates
as “accept your lot”.232
In a few text examples, as reflected in Part C, the term is given as follows:
In Larsa:
L5 casting of lots, TS 6 (BM 33159) Line 15: giššub-ba ì-šub-bu-ne-eš.
L6 Line 46 - i-na mi-it-gu-ur-ti-šu-nu is-qá-am i-/du-ú-ma - by mutual agreement, they
have agreed to the division by casting of lots (division by lots - išqu).
L8 Line 25-26: i-na mi-it-gu-ur-ti-šu-nu o-i-na is-qí-im i-zu-ú-zu –o - by mutual agreement
in equal parts, they carried out the division by casting lots (Larsa išqu).
L10 TS 5 (BM 33180): Line 23-24: é kiri6 nì-ga ù giššu-kár a-na gál-la ì-ba-e-ne
giššub-ba ì-šub-bu-ne - they divided the house, orchard, movable property and furniture
as much as there was, and by casting of lots. This is twice mentioned together with each
brother’s awarded divided assets. Line 11 - TS 5 (BM 33180): ì-ba-e-ne giššub-ba ìsu[b*-b]u*-ne - by casting of lots (two times in the text)
gis
šub-ba-ta in-ba-eš u4-kúr-šè
lú-lú-ra – they have divided by lot and in the future brother against brother will not claim
against another.
In Nippur:
N1: Reverse line 13
gis
šub-ba-ta in-ba-eš u4-kúr-šè lú-lú-ra - the parties’ state that they
have divided by lot.
232
N2: they have divided up by lots. (Sumerian variant)
Pennsylvania
February 2012.
giš
šub-ba-ta in-ba-eš. Line 22: [še-
Sumerian Dictionary. http://psd.museum.upenn.edu/epsd/nepsd-frame.htm. Cited 5
178
ga-ne-ne]-ta giššub-ba-ta in-ba-eš.
N4, C6: ur-a-sì-ga-bi in-ba-eš - the parties agree they have divided into equal parts
(Sumerian variant).
N5: ni-ba-e-ne – line C2 (Sumerian variant).
N7: šu-ri-a-bi in-ba-e-eš and
giš
šub-ba-ta in-ba-e-eš - lines 46, šu-ri-a-bi in-ba-e-eš.
Line 19 and 41 - with every share of a brother, and again, when parties mutually agree to
division, at the end of the agreement, in line 46: še-ga-ne-ne-ta - they mutually agree.
Kitz (2000) investigates the same Akkadian texts, and compares them with Joshua chapters
13-19 of the Bible.
She contends “lot casting legally dissolved the state of undivided
inheritance and that there are certain similarities between the Mesopotamian texts and
procedure of Joshua chapters 13-19, signifying a borrowing and influence towards each other”
(Kitz 2000:618).
6.3.3
As much as there is - clause (Nat 5)
This clause contains different terms, all of which indicate that there is a finality and
completeness regarding all of the assets involved, with small discrepancies in variants and
meanings.
Gamāru, signifying completeness and finality, encompasses all of the assets involved, and if
read together with the usual clause, they agree to divide. In addition, ištu urāṣum, also
denotes the same concept. However, here a symbolic note is identified, mainly occurring in
Sippar: a spectrum ranging “from straw to gold”. This constitutes to include the smallest
item, although this smallest item is essential, for straw is an important building material
ingredient, to the most precious item, which is gold.
hese terms’ meanings in the C D and PSD are explained below
179
6.3.3.1 Gamāru
Gamāru in CAD volume 5 G is identified as completeness, finality and it is an subject
(Oppenheim 1956a:CAD 5, 24-25).
The verb form of gamāru under heading number one is referred to as “bring to an end” which
includes “to annihilate, to use up, to spend, to settle, to encompass, to control, to possess in
full and to finish an activity” (Oppenheim 1956a:CAD 5, 24-25).
Texts in Sippar offering examples of this term are:
S9: Case (BM 92585 A) = Case of CT 8 16a
Line 26: zi-zu ga [am-ru-um bu]- ru -ú-ma - they agreed to division and finished the
division.
Tablet (BM 92585) = CT 8 16 a
Line 25: zi-zu ga-ab-ru-um bu-ru-ma - they divide the estate and finished the division.
Case (BM 92585 A) = Case of CT 8 16a
Line 27: iš-tu pí [e a-di] guškin - “from straw to gold”.
Tablet (BM 92585) = CT 8 16 a
Line 26: iš-tu pi-e a-di guškin - “from straw to gold”.
S6: Line 7-8 nin-a-ni i-zu-zu zi-za ga-am-ra - the ladies agree to the division, the division
is finished. Line 9: iš-tu bi-e a-di urâṣim - from the straw up to the gold.
S3: Tablet (BM 82425) Line 29-30 zi-zu ga-am-ru ma-la-ma- ṣú-ú zi-ta-šu-nu ga-me-irtam - they have divided, the division is finished. Case (BM 82425 A) Lines 16-19: a- di
guškin zi-zu ga -[am-ru] i -zu-uz-zu-ú iš-tu pí-e a-di guškin [zi-zu ga-am-ru ma-la
ma-ṣú-ú] zi -ta-šu-nu ga-m˹ -[er]-tam il-te- qú-ú [li-ba]- šu -nu ṭú - ub
ud -[kúr-šè
a- u-um a-na a- i-im] - from straw to gold, the division is finished, brother against
brother will not raise a claim against another and their hearts are satisfied, from straw to
gold.
180
6.3.3.2 Ištu urāṣum
he term translates as “from straw chaff to gold”. In Oppenheim (1956b: CAD
, 6) under
the heading urāṣu, it is translated as gold with special qualities to it, including as material,
varieties, economic use, figurative use, in pharmacopoeia, etcetera (Oppenheim 1956b:CAD
6, 245). It is outlined as a symbol of valuable property and occurs in the Old Babylonian legal
documents, only as ištu pî adi KÙ-GI zīzu gamru, from chaff (straw) to gold: they agree to a
division of the property and settle the matter. Another variant is ištu pîm ana u-rā-ṣí-im
(Oppenheim 1956b:CAD 6, 247).
Duncan (1914:177) discussed the term from “chaff to gold”: iš-tu bi-e a-di urâṣim and
transcribed it as iš-tu bi-e a-di urâṣi. According to Duncan (1914:177) it was previously
thought to mean “from mouth to gold”; in other words, through oral agreement the transaction
was settled by payment. It now seems that the word bi-e is from the word pū which means
not mouth but “threshed straw” chaff. The expression chaff to gold refers to, “from the least
valuable to the most valuable”; thus complete division of all the property has been made. In
the following texts in Part C, these terms occur as examples, namely:
In Larsa:
L2: Lines 18-20: é kiri6 giškár nì-šu-gal nì-gá-gál-la ša ad-da-ne ì-ba-e-ne - movable
ground, orchard, furniture, goods and liquidities as much as there was, which belonged to
their father, and they divided [these].
L4: Line 41-42: é
giš
kiri6 sag-gemé sag-arad [nì]-ga-ra é-da-da-[e-ne] a-na gál-àm -
house, garden, female and male slaves, estate of their father’s house as much as is extant
(there were)
L7: wa-ar-ki a-la é-ad-a ni-šu-nu ú-sà-ni-qú-ú-ma é-ad-da a-ni ma-la ma-ṣú-ú i-na
mi-it-gur-ti-šu-nu i-zu-zu - after they had established the respective shares of the house of
their father, by mutual agreement they divided the house of their father, as much as there
was.
L10: TS 5 (BM 33180): Lines 10-11: é kiri6 nì-ga [ù
giš
šu-kár a-na gál-la] ì-ba-e-ne
181
gi š
[ šub-ba ì-sub-bu-ne] - they divided the house, orchard, goods and furniture as much as
there was. “Casting of lots” is referred to twice in the text.
Examples in Sippar are:
In S2, line 7: iš-tu pí-[e] a-di guškin - “from straw to gold” they have divided.
In S22, tablet (BM 16813) Line 27: [zi-zu ga-am-ru iš]-tu pí-e - the division is finished;
from straw. Reading together with line 28: [a-di guškin a- u-um] a-na a- i-im - to gold;
brother to brother. Reading together with Case (BM 16813 A) Line 28: iš-tu pí-e a-di
guškin - “from straw to gold”.
S24, lines 15-17 i-zu-zu zi-zu ga-am-ru – they have agree to the division and the division
is finished; line 18: iš-tu pi-e a-di uraṣi - from the straw to the gold.
6.3.4
No claim - clause (Nat 6)
Variant: inim nu-um-gá-gá-a (shall not raise any claim); Another variant: šeš-a-ne-ne baani-ib-ge4-ge4-ne (his brothers shall not raise claims against him).
In the no claim clause, we find the word inim, which translates as “word” in the PSD. In the
PSD233 it is found in texts from: Early Dynastic IIIb, Old Akkadian, Lagash II, Ur III, and Old
Babylonian. It is written as inim; e-ne-èg “word”; “matter of affairs ”. he kkadian variant
is amatu. See also inim bala [converse], inim gi[answer], inim gin [confirm], inim ĝal
[sue], inim ĝar [sue], inim hulu [insult], inim sig [express], inim šar [discuss]. Seventy-one
forms have been attested and must be read together with other terms, in context.
Another word is gi, which translates in the PSD as “turn”, and is found in the texts from the
periods Early Dynastic IIIa, Early Dynastic IIIb, Old Akkadian, Lagash II, Ur III, Early Old
Babylonian, Old Babylonian and unknown.234 The written word: gi4; gi, means “to turn,
return; to go around; to change status; to return (with claims in a legal case); to go back (on
an agreement ”.
he
kkadian variants are lamû; târu. See also a gi [deflower], ad gi
233
Pennsylvania Sumerian Dictionary. http://psd.museum.upenn.edu/epsd/nepsd-frame.html. Cited 5
February 2012.
234
Pennsylvania Sumerian Dictionary. http://psd.museum.upenn.edu/epsd/nepsd-frame.htm. Cited 5
February 2012.
182
[advise], inim gi [answer], sa gi [prepare], saĝ gi [block], šeg gi [make noise], šu gi [repay],
šu gi [repeat], zi gi [on good terms].
In this context, gi means 1. to turn, return. Examples are Old Babylonian/unknown mu-a u4
[...-kam nu-gi4-gi4-ne] SAOC 44, 86 2; u4 kúr-še lú lú-ù nu-gi4-[gi4-ne] SAOC 44, 86 5; kibi-šè bí-in-gi4-a UET 5, 125 28; nu-mu-un-gi4-gi4-dè UET 5, 150 16; lugal-e an-ta íb-gi4
UET 5, 203 9; nu-mu-un-gi4-gi4-dè YOS 05, 135 14.
Other meanings include: 2. to go around, 3. to change status, 4. to return (with claims in a
legal case), 5. to go back (on an agreement). The Akkadian variants are: lamû “to surround”;
târu “to turn, return”. See ETCSL: gi4=to return.
Examples from Part C texts are:
In Larsa:
L1 Line 19 ugu-ni nì-na-me-en - that there will be no complaint against the other.
brother will not lodge a claim against another.
brother will not raise a word and come back.
L5 TS 6 (BM 33159) Line 16: u4-kúr-šè šeš šeš-ra inim-ma nu-gá-gá – brother against
L6 Line 48: u4-kúr-šè u4-nu-me-a-ka
šeš šeš-ra inim nu-gá-gá - brother against
L8 Line 26: nu-mu-un-da-bal-e - they will not claim against each other.
shall not alter.
L9 Lines 23: a-la ša i-zu-zu la–i-in-nu-u2-ma - the inheritance which they divided they
L10 Lines 25-27: u4-kúr-šè Idingir-šu-ellat-sú-k[e4] Ia-ba-a-a-ra šeš-a-ni inim nu-umgá-gá - in the future, Ilšu-ellassu will not make a complaint against his brother Abaya.
In Nippur:
N1, N4, N5, N7 and N9 the contractual parties agree that they will not raise any claims
against another.
In Sippar:
183
S2 Line 8: zi-zu a-na a- u-la-ap-dutu ú-ul i-ra-ga/-mu - at a future time one brother
against the other shall not make a claim.
S6 Line 10: a-na a- a-tum ú-ul i-ra-ga-am – brother to brother will not complain against
one another.
6.3.5
Oath clause (Nat 7)
In PSD235 the word pàd translates as “find” and is used in the texts from the periods Old
Akkadian, Lagash II, Ur III, Early Old Babylonian, Old Babylonian, Middle Babylonian,
unknown. Writing as pàd, which also translates as “to find, discover; to name, nominate”.
The Akkadian variants are atû “to find, discover”; nabû “to name”.
Examples from the Old Babylonian period are:
unknown/Old Babylonian/Nippur mu lugal téš-bi in-pà-dè-eš SAOC 44, 31 27.
unknown/Old Babylonian/unknown mu lugal-[la téš-bi in-pà] SAOC 44, 86 3.
dub ul-pà SAOC 44, 41 9.
in-pà#-dè#-[eš] SAOC 44, 86 7.
mu en-dinanna diš-bi-èr-ra máš-e Ì-pà TLB 5, 02 10.
unknown/unknown/Nippur mu# lugal téš-bi in-pà-dè-eš N 0968 18.
Magnetti (1979:8) is of the opinion that the philosophical outlook of the people of the ancient
Near East was influenced by beliefs in the supernatural, so that religion became “an important
aid in the administration of justice”. A further qualification to the oath is the mentioned
“promissory oath” made by witnesses. he aim according to Magnetti (1979:23) was either to
reassert that the truth had been told, or to “strengthen a statement previously made”.
aths
were considered part of the “normal contract procedure” found in several legal texts
throughout the ancient Near East. They seem not to occur in all contracts and the assumption
is that this supernatural control is not necessary over all “actions of men”. When used, it was
for providing an “added assurance” in the conditions of agreement Magnetti 1979 8 .
Oath references are found in many of the named law collections such as LU, LE, LL, LH and
235
Pennsylvania Sumerian Dictionary. http://psd.museum.upenn.edu/epsd/nepsd-frame.html. Cited 5
February 2012.
184
MAL (Magnetti 1979:2).
Porter (2002:4) mentions that in Mesopotamian texts, without referring to which ones, there
are certain terms such as “god of the family” and “god of the house” which need to be
differentiated. The family god is the personal god and there is a connection with the family's
“place of origin”; these gods are worshipped in “shrines outside the house” whereas the so
called “household god is the ancestor who transmits inheritable property, and it is in this light
that cultic installations in houses and tombs in Nippur, for example, and Old Babylonian Ur,
are to be interpreted”.236
In some of the texts cited as examples in Part C the oath is reflected in context as follows:
In Larsa:
L1 Line 19- 20: mu dnanna dutu ù ri-im- dEN-ZU lugal-e in-pàd- eš - they have
sworn by S n, ṣamaš and King Rîm-Sîn.
L5 TS 6 (BM 33159) Lines 17: mu lugal-bi in-pàd – they swore by the king
Porter 00 4 refers to van der oorn where distinctions were made between “god of the family” and
“god of the house”. he family's place of origins is associated with these gods. he “god of the house”
comprises of the ancestors. he “god of the house” is situated in the house on a pedestal or table. hese shrines
are associated with the “inhumations in and below houses”. ccording to Porter 00 4 “ here is a close and
complex relationship between mortuary rituals and practices, the inheritance both of position of family head and
property, the presence of household shrines, and the concept of ancestors to be observed in the documentation of
greater Mesopotamia”. Caution should be exercised at different sites regarding these mortuary practices and
inheritances. For instance there is a different emphasis on the ideals underpinning mortuary rituals at Ebla and
Mari (Porter 2002:5-6 ; although the “ideal vision of society was construed” the reality was different Porter
2002:6). For instance, at Mari, there exists an “ideal tribal unity” Porter 00
. t Ebla there are “restricted,
perhaps fictive, genealogical and descent structures, and kinship took place in dynastic succession” Porter
2002:6). erritory plays an important part as a form of “social identify”, which determines the rights to the land
and serves as “coherence and integration of group membership” (Porter 2002:7); therefore ancestor burials
“demarcate the territorial and social boundaries of the group” Porter 00 1 . Power is kept in the hands of a
few Porter 00 1 ; through “ancestor traditions were created an ideal image of a socially unified group in the
descent-based linkages, real or fictive, through which members of society conceived themselves as connected,
and are manifest in the symbolism of burial practices” Porter 00 1-2). Porter (2002:24-25) is of the opinion,
although considering it “speculative”, that occupation, the use of the river area, the interaction of groups
produced a “identity crisis” and “social self-consciousness and territorial delineation, conflicts over resources”;
hence “the political function of the tribe becomes most visible when the tribe confronts the outside world”
(Porter 2002:24-25). Porter used the main mound outside ell Banat to illustrate this. First the mound was “a
place of purely mortuary function”, which then changed to “a more centralized and formalized polity, elaborated
in a series of stages”. here were, first, only “ritual centres” around the burials, which were sufficient to “define
and sustain group identity”. In the second stage, the “ritual and administrative structures” become “elaborate”.
The establishment of power in the hands of a single line of descent becomes evident (Porter 2002:26). A
“network of personal and political ties centred around the palace-temple, where the elite are in the centre and
society was in kinship groups” occurs Porter 00 7 . he third stage “is characterized by atomization and
involution of institutions with a commensurate depersonalization and intensified stratification of group relatives”
(Porter 2002:27).
236
185
L8 Line 27-28: mu sa-am-su-i-lu-na lugal-e in-pàd-meš – they sworn by King Samsuiluna
In Nippur:
N3 Line 16: mu lugal-bi in-pà(d)-dé-eš – by the name of the king they have sworn.
In Sippar:
S1 Sworn by the gods Marduk, ṣamaš and
nnunitum and also the city of Sippar. Lines
14-17: [niš ilu] šamaš ilumarduk an-nu-ni-tum ù alusippar ki ni-pà(d)-deeš.
Different gods are named in the oaths, especially in the Larsa and Nippur’s deceased division
agreements, but sometimes omitted in the Nippur texts. The role of the gods and their
influence as an aid in enforcing contracts may reflect to an extent the purpose of an oath, and
the overall meaning of the supernatural role in inheritance legal traditions, and the said
agreements.237
6.3.6
Preference portion - clause (Nat 8)
The preference portion, or privileged portion, or right of first-born share, denotes the situation
where the eldest son receives an extra portion or percentage of the estate assets, before the
division of the deceased paternal estate takes place.
The use of the terms
giš
banšur and/or zaggulá and/or síb-ta are read together with mu-nam-
šeš-gal-šè.
In the PSD238 the root word banšur means table, and this occurs in the texts during the
237
The scope of the thesis does not allow for the discussion of this hypothesis, although further research may
reflect better insight into the role of the oath or rationale for the absence thereof in certain cuneiform agreements.
Another question is, how were the obligations of the provisions of the agreement enforced, for in some
agreements (cf. Part C) there were no sanction clause; however only an oath clause. Did religion play any role in
the enforcement of obligations? Or were there other factors in place such as kinship relations, or a combination
of other factors/characteristics of the legal traditions? Cf. in this regard Chapter 2, Characteristics of ancient
Mesopotamian Legal Traditions.
238
Pennsylvania Sumerian Dictionary. http://psd.museum.upenn.edu/epsd/nepsd-frame.html. Cited 5
February 2012.
186
periods ED IIIa, ED IIIb, Old Akkadian, Ur III, Early Old Babylonian and Old Babylonian).
Also the written words: banšur,
|URU×IGI| means “table”.
he
ĝeš
banšur, banšúr,
ĝeš
banšúr, banšúr,
ĝeš
banšùr, banšurx
kkadian variant is paššūru. Another variant is banšur
zaggula, denoting table, which can be found in Old Babylonian texts. The terms are written as
ĝeš
banšur-zag-gu-la,
ĝeš
banšur-zag-gú-lá, meaning “a cultic table”; while the
kkadian
variant is paššūr sakkî. Also found is banšurzagĝara which translates as table from the Old
Babylonian period. It is written as
ĝeš
banšur-zag-ĝar-ra meaning “a cultic table”; the
Akkadian variant is paššūr aširti.
In some of the texts provided as examples in Part C the preference share-term is reflected in
context as follows:
In Larsa:
L10: TS 5 (BM 33180): Line 20 1 gišbanšur zà-gu-la - a table (one) zaggula (first-born
share).
In Nippur:
N5: Line A3 1
giš
banšur zag-gú-lá sib-ta nam-šeš-gal-lá-šú – 1 zaggula bowl: as the
privilege of the elder brother.
N6: Col 1:16 1
giš
banšur zag-gú-lá sib-ta mu-nam-šeš-gal-la-šú - 1 zaggula bowl, the
privilege of the elder brother.
In Alalakh, just as in Nuzi and Ugarit, there is textual evidence that the father can move away
from the rule of first-born share, and appoint a “first-born” as an beneficiary to his estate
(Mendelsohn 1959:38-39). This in effect means, that the newly appointed eldest son, at the
time of his father’s death, is in a privileged position; in Assyria, Nuzi, Ugarit and Alalakh he
could receive a double portion (Mendelsohn 1959:39).
Mendelsohn (1959:39) is of the opinion that there are no documents from the Ur III period,
which state that the first-born son received a higher status than others; only in the Isin-Larsa
period was mention made of an eldest brother, in Sumerian: šeš-gal; in Akkadian a um rabûm
who received the “additional share”, Sumerian síb-ta; in Akkadian elâtum. According to him
187
some Larsa texts indicate also a larger share, sometimes double (Mendelsohn 1959:39).
Preferential status also occurs in southern- and northern Babylonia. Mendelsohn (1959:40)
mentions that LL and LH refer to such status and of equal partition (24 by LL and 65, 167 and
170 by LH).
he preference rule originates from the “semi-nomadic and predominantly
agricultural societies”, where the eldest son was placed “second in rank” in the family (father
the head), and the eldest received “special prerogatives”. Due to changes in the economic
structures of cities in the Neo-Sumerian and First Babylonian Dynasty, the eldest son's role
was reduced; in documents from Ur III and LH. However, Mendelsohn (1959:40) maintains
that in “the less industrialized and commercial communities of Nuzi, Middle
ssyria, Syria
the old custom of according a privileged status to the first-born son remained in force”.
Frymer-Kensky considers the terms first-born, brother, sister, and father - to have a
“particular juridical relationship which may be entered into by contract as well as by birth”
People adopt others as brothers, brothers adopt each other as sons, brothers
adopt women as sisters, and the designation of an individual as “first-born”
can also be a matter of choice (Frymer-Kensky 1981:214).
The eldest son received a preferential share; the continuation of family patronage in a
patronage household was an important institution, pertaining to inheriting an estate. The
underlying principle, the primogeniture (first born-share) mentioned, prevailed. In cases
where a situation occurred in the ancient Near East, where only a daughter as the principle
heir/beneficiary survived, the father could be undermined. In the ancient Near East, not to be
succeeded by sons was considered “unnatural, or ill-omened”. According to Ben-Barak
(1980:22) there are no “explicit laws or statements of principles in the sources, and the only
evidence available is from different places at different periods”, pertaining to the first-born
share principle.
In Sumer the Ensi Gudea of Lagaš states that when the father has no son, the daughter is then
the beneficiary of her father’s estate. According to Ben-Barak (1980:22), the Ensi Gudea
declared in these statements the “ideal aspirations of society”, however Ben Barak opines that
this is only an exception to the rule, and that the daughter usually does not inherit her father’s
estate.
188
Postgate (1992:98-99) mentions that, depending on the custom of a city, an eldest son may
receive more than an equal share.
Furthermore, in Nippur the eldest son had “certain
privileges and duties” Postgate 1992:98). Temple offices seem to be passed on to the eldest
son, and he had first claim on the house.239 Postgate (1992:98) opines that sometimes a house
would be too small to divide, and it would be a “practical consequence” to stay in the same
household.
As a different approach, Harris (1992:622) argues that to gain a degree of insight into
Mesopotamian life, especially its “emotional content”, is not easy for there are no diaries or
memoirs. What we are left with to analyse are scattered literature sources. She examines
some epics and myths, who according to her “incorporate ideals and stereotypes are far
different from the realities of human life”. This, she argues, must be read together with legal
texts, which include inheritance, adoption and lawsuits, in order to shed light on
Mesopotamian life. She theorises that Mesopotamian society was based on inequalities of
age, sexual and status (Harris 1992:622).
Harris (1992:622) believes that in Mesopotamia, due to the fact that it was an agricultural
society,
“social
continuity
rested
upon
inheritance”.
It
entails
“complex
relationships”…“including affection and exploitation” which “must have been at the centre of
family life”.
She differentiates between two “inheritance divisions” one is an “equal
division, in which all male heirs divided the estate equally”, while the other is the preference
share of the eldest brother.
She believes that “fraternal tension” was caused by this
preference rule, because the head of the family, the father, exercised total control over the
estate for life.
he sons could possibly receive something during their father’s lifetime, for
instance as a result of marriage, apart from their expected inheritance. This could mean that
one child might be “favoured” at the expense of another. Therefore, considering age as a
factor of inequality,
arris 199 6 9 investigates myths; and how these “appear to mitigate
generational tensions by countering the idealization of the elderly and old age, focusing
instead on the injustices perpetrated by the old against the young”. According to her there is
constant tension between the new and the old gods, which usually illustrates conflicts between
cities as a result of these gods.
he myths she considers are “multi-dimensional and ….
mirror human tensions which are thereby dissipated or at least reflected upon” (Harris
239
See later in this part and in Part C, in the Nippur texts. The edadi-ship allocations were significant assets
for allocation in the Nippur family deceased division agreement.
189
1992:629).
Postgate (1992:99) asserts that the reason the eldest son receives the house, stems from his
duty to build a house beneath ancestral tombs. Death creates ancestors, and there were
“specific processes” and burial practices or rituals, through which the deceased became “new
social persona” (Porter 2002:8).240
Porter241 (2002:156) explains that death and actions
connected to it extended from the funeral, burial and other mortuary practices, such as
“maintenance, commemoration and veneration”, which as a collective group were “highly
ritualized”, from the rituals arose “strong ideological” and “social meaning”. Through all of
these mortuary practices “complex representations of society, world views and religious
beliefs”242 are reflected and mirrored. She is of the opinion that “the dead are central to the
production of social order, and the way the dead are treated is indicative of the concerns of, or
even threats to, that order” Porter 00 1 6 . She considers ancestors as “instrumental in the
transmission of rights, obligations, and especially resources regarding communal and
individual property over time” Porter 00 1 7 .243
Furthermore, Leemans (1986:18) opines that the eldest son’s share as a forum in division
agreements in the South of Babylonia, constitutes a double one and although it expresses a
“special right and responsibility”, there are “no traces” of any liabilities that the family
member incurs; therefore his conclusion together with the rest of his arguments is, that there
is an organisational framework where that family functions as an economic unit, and that each
member in the family acted on his own accord and by contract (Leemans 1986:15-22).
The researcher considers the preference rule as one of the many legal practices, which were a
matter of choice. In a city-state such as Nippur, it seems to be an important means for the
continuation of the patronage estate, although the researcher does not agree that this is the
overall principle applied in all of the city-states and time-periods. The corpus of inheritance
240
Cf. Postgate (1944:99-101) regarding this history of ancestral tombs from early dynastic times. He also
states, like Porter (2002), that the Old Babylonian sources are silent regarding these private cults except for
personal deities. Kin based groups had their own gods, the latter being also a “statement of identity with a social
group as the worship of a city god” Postgate 1944:101).
241
Porter (2002:1-36) examines the role of ancestors in Syria during the third millennium but refers to other
nations and periods of the ancient Near East.
242
In the Banat society the dead constitute a very specific category of social being, and not just in the third
millennium northern Mesopotamia. They become through their new identity an ancestor with a purpose (Porter
2002:166).
243
In certain cultures such as Nuzi the main beneficiary (heir) is responsible for the ritual practices and
maintaining of rituals, which in turn is connected to inheriting the family property (Porter 2002:157).
190
documents in a said city-state and time-period, should first be investigated before such an
assumption can be made. See also the heading “beneficiaries” regarding the position of
daughters and the heading “adoption clause” where the estate owner, on a contractual basis,
can deviate from the “normal” succession rules.
6.3.7
Equal shares – clause (Nat 9)
In Reiner (1977:CAD M 2, 132), under mit āriš as an adverb, the term is defined. It is
explained as follows under heading 1: “each one of two or more persons, objects etcetera,
enumerated to the same extent or degree”.
In the legal context it is found in context with the following texts:
In CH 165:149244 the context of the text reads: ina makkūr bīt abim mi-it- ā-ri-iš izuzzu
which translates as “they the brothers take equal shares of the possessions of the paternal
estate”. The terms mi-it- ā-ri-iš izuzzu are usually referred to together in a text, to indicate an
equal distribution or division. In the Sumerian formulation, we find téš-a-sè-ga-bi ì-ba-e-ne.
In some of the texts cited as examples in Part C the “equal shares”-term is reflected in context
as follows:
In Larsa:
L7: Line 15-18: ú-sà-ni-qú-ú-ma é-ad-da a-ni ma-la ma-ṣú-ú i-na mi-it-gur-ti-šu-nu i-zuzu - after they had established the respective shares of the house of their father, by mutual
agreement in equal parts they divided the house of their father “as much as there was”.
L8: Reverse lines 21-22: pa5 a-ta-ap i-ba-aš-šu-ú ana a-la ú-ul o-ša-ki-in mi-it-ha-ri-iš
i-ša-at-tu - the branch of the channel, which forms part of the paternal estate, is not
included in the division: it will be replaced by equal division. Line 23-24: i-na mi-it-guur-ti-šu-nu i-na is-qí-im i-zu-ú-zu - by mutual agreement in equal parts, they carried out
Roth 199 11 translates paragraph 16 as follows “If a man awards by sealed contract a field, orchard,
or house to his favourite heir, when the brothers divide the estate after the father goes to his fate, he (the
favourite son) shall take the gift which the father gave to him and apart from that gift they shall equally divide
(mit āriš the property of the paternal estate”.
244
191
the division by casting lots. (Larsa, Akkadian variant for lots išqu).
L9: Lines 20-22:
a-la Li-pi2-it-E2-a ša i-na mi-it-gur-ti-šu- nu it-ti a - i-šu i-zu-zu - the
inheritance of Lipit-Ea, which he divided with his brothers in mutual agreement (in equal
parts – not so translated by Andersson 2008:13-22). Also ša i-na mi-it-gur-ti-šu- nu it-ti
a - i-šu i-zu-zu, the inheritance which they divided they shall not alter and a-la ša i-zuzu la –i-in-nu-ú-ma.
In Sippar:
S22: Tablet (BM 16813) Line 26: mi-it- a-ri-iš i-zu-zu - they divided equally and agree to
the division.
6.3.8 Witnesses - clause (Nat 12)
In the PSD245 the root word igi means face, in front of; translated as “before”. This term
occurs in the texts from the periods Early Dynastic IIIa, Early Dynastic IIIb, Old Akkadian,
Lagash II, Ur III, Early Old Babylonian, Old Babylonian, uncertain and unknown (periods).
The term is written as igi; i-bí; igì; i-gi, meaning “first, earlier; front; face” and the kkadian
variant as ma rum; pānû. In the Akkadian variant mahrum refers to “first, former, earlier”
and qudmu to “front side ”.
In Reiner (1977:CAD M Part 1), ma ru number 2, volume 10:105,106 the term ma ru is
defined. In heading/number 2 it is used as a preposition and means “before, in the presence,
in front of (persons, objects, staples) with, under the responsibility of, in the direction of, in
front of”.
The Sumerian equivalent is igi; this Akkadian word is shown as ma- ar. Thus, when one
reads together both variants found in the division agreements, the witnesses appear in the
presence of the contractual parties. They witness the proceedings and must afterwards testify.
See in this regard, Oppenheim (1961:CAD Z, 146), regarding the totality of the assets of an
inheritance. A division agreement was concluded between the contractual parties, following
245
Pennsylvania Sumerian Dictionary. http://psd.museum.upenn.edu/epsd/nepsd-frame.html. Cited 5
February 2012.
192
with a sales agreement. A dispute ensued between them. The one contractual party informed
the judges about a claim brought against the other party. Cognizance was taken regarding the
contents of the tablet concerning the inheritance assets. The one contractual party declared as
follows “ fter this earlier tablet concerning the inheritance was made out to PN2 in a definite
way, and there are witnesses who know about the later division of the inheritance – summon
them!”. From this text, it seems that the witnesses’ function was different from that in
present-day law.246 In ancient Mesopotamia, the witnesses witness all of the proceedings and
oral content of the agreement, and can testify regarding the contents and proceedings of the
legal acts. The correct translations for igi or ma ar are “before”/“in front”.
The case infra also illustrates the importance of witnesses. The selling of the house probably
occurred a long time previously, for the house was seemingly bought by the father of the
claimant Iqishuni, who claimed the house as part of an inheritance from his father. It seems
that the sons of the buyer were not aware of the situation, and only on their father’s death
realised that the house was not his property. It can be argued that the buyer only had to prove,
by oath and through witnesses, the legitimacy of an oral agreement of sale, to establish
rightful ownership.
The text translated by V Scheil reads as follows:
Concerning the house which Abi-ili sold at full price to Kuk-adar (in the
time of the viceroy) Temti-raptash and Kuduzulush the burgomaster, (5)
Puzur-Teppuna, son of Abili-ili, and his heirs, rose up in litigation against
Iqishuni (son of Kuk- dar , declaring thus ‘ ur father’s house was not
sold to your father; (10) your tablet is forged’. Many men were present, and,
acting as a court, imposed upon Iqishuni the oath by the god. In the temple
of Innanna Iqishuni (15) pronounced the oath saying ‘Thou, O Innanna,
knowest that I did not fabricate a forged document and that my father
bequeathed this tablet to me.’ Iqishuni having thus sworn, (20) they cleared
for him (his title to) the house. (21-47) Names of witnesses. (48ff) In the
presence of these 34 witnesses Iqishuni took the oath in the temple of
Inanna; Puzur-Teppuna [and his heirs] caused him to take the oath [...] (and)
they (the judges) cleared (for him title to) the house (Pritchard 1955:545).
246
See discussion of witnesses function in the law of today in contrast with ancient Mesopotamia (ancient
Near Eastern) legal traditions in Chapter 4 – Old Babylonian Scribal School Traditions.
193
6.4 NIPPUR: IRREGULAR
AGREEMENTS
NA UR L
ELEMEN S’
TERMS
IN
DIVISION
6.4.1 Introduction
An adoption clause is a natural elements clause, which occurs only in Nippur, which is an
anomaly in a family deceased division agreement.
This normally occurs in a division
agreement while the estate owner is still alive; the owner together with the children and
adopted child agree to the division of the agreement, normally subject to a usufruct- or trustee
clause.
6.4.2 Adoption/support - clause (Nat 1)
In the Nippur text N4, an adoption/support clause is part of a family deceased division
agreement containing the term. The basic meaning of Sumerian ba-da-an-ri is “to adopt”.247
For instance in context regarding the text number 23, and part of collection M.I.O, CBM 1917
(Hilprecht 1909:21) is 1/3 nam Na-ra-am-tum ama Mi-gir-dEn-lil Nar-ru-ub-tum dumusal Mi-gir-dEn-lil ú Ur-dPa-bil-sag-gá egir dam-a-na-ka, which translates as a third of the
fortune (or object of exchange) of Naramtum, mother of Migir-Enlil; Narubtum, daughter of
Migir-Enlil and Ur-Pabilsagga, whom he has adopted.248 Migir-Ellil died and her estate
devolved among her beneficiaries. Two contractual parties, Narubtum and Ur-Pabilsagga
concluded their oral division agreement regarding co-ownership of the inheritance property in
a recorded agreement. It seems that the contractual party, Narubtum, was the deceased’s
biological daughter. The other party, Ur-Pabilsagga’s, relationship to the deceased is
unknown. Interesting to note is that Ur-Pabilsagga receives with Narubtum, in equal parts,
divided portions of the deceased’s estate, and because the búr clause was applied, a field was
247
Cf. Pennsylvania Sumerian Dictionary. http://psd.museum.upenn.edu/epsd/nepsd-frame.html. Cited 5
February 2012., in unknown Babylonian texts: nam-dumu-ni-šè ba-da-an-ri BE 06/2, 24 5; nam-ibila-ni-še
ba-an-da#-[ri] BE 06/2, 28 3; u4 nam-ibila-ni-še ba-an-da-ri-a BE 06/2, 28 4.
248
“1/3 sar 5 gin of built house, on one side adjoining the house of Babbar and Enlil; 40 sar of upland
garden, which slopes down into the marsh before it(?), the side of the garden adjoining Ellitum; Ali-a usha, the
maid-slave; Iškur-rim-ili, the man-slave; inheritance portion of Narubtum, daughter of Migir-Ellil; 1/3 sar 5 gin
of built house, on one side adjoining the house of Ibku-Damu, 40 sar of upland garden, which slopes down into
the marsh before it(?), the side of the garden adjoining Ibkuatum; 1½ acres of usû field, (additional) payment for
Iškur-rim-ili, the man-slave; Dumqi-Ištar, the maid-slave; Taribum, the manslave; inheritance portion of
Ur-Pabilsagga, a third of the fortune (or object of exchange) of Naramtum, mother of Migir-Enlil; Narubtum,
daughter of Migir-Enlil and Ur-Pabilsagga, whom he has adopted as beneficiary (heir) after the death of his wife,
have divided into equal parts. In future neither shall have power to revoke this agreement. By the name of the
king they both have sworn” (Note Part C - N4).
194
brought in to equalise the value of the property for each party. A complicated situation occurs
where Ur-Pabilsagga adopted Narubtum and both of them receive in equal parts a one-third
portion of an inheritance deriving from the deceased’s mother’s estate. Could Ur-Pabilsagga
be the husband who married the deceased after she was widowed, or could he be the
deceased’s brother or even her son˹
Frymer-Kensky (1981:211) mentions that terms such as son, brother and eldest son are not
there only for “biological referents”, but “define special juridical relationships”, and that these
relationships can be “created artificially through various types of adoption and
specification”.249
In addition, Moldenke (1893:110-112) refers to an adoption text which reflects how a certain
son on his father’s wishes, married a certain woman, who seems to be unable to bear children
(barren). This son now wants to adopt his stepson. His father does not wish to consent. His
father made a will wherein he stated, that if his son did not have a legitimate and natural son,
his son will adopt his brother. Thus, meaning that his son with no natural son, must made his
brother the heir/beneficiary of his estate and not his stepson. If the childless son does not
want to adopt his brother, the choice of adoption must fall on the childless brother’s sister.
Unfortunately, the end of the tablet is broken and we do not therefore know the final result.250
In other types of adoption agreements, the quasi-adoption agreements, new juridical
relationships are also defined. These agreements do contain a division clause, but unlike the
adoption clause of natural elements in family deceased division agreements, these agreements
are concluded between the family members and a living estate owner. Apart from this single
exception at Nippur, this agreement is between the brothers; and the estate owner is
249
In LH the following paragraphs apply to an adoption, namely 185, 186, 187, 188, 189, 190, 191, 192 and
193.
Text translated by Moldenke (1893:111) as follows: “1 Belkasir, the son of Nadinu, the son of Saggillai,
2 to Nadinu, his father, the son of Ziria, the son of Saggillai, 3 spoke: To the house of the adopted sons thou didst
send me, and Zunnâ, 4 I took to wife; but a son or a daughter she bore (me) not: Belusat, 5 the son of Zunnâ, the
son of my wife, whom unto, 6 Nikudu, the son of Nûrsin, her former husband, 7 she bore, as my adopted son I
will take: 8 verily he shall be my son. At (the writing of) the tablet concerning his adoption, 9 thou shalt be
present. Our rights of income and our possessions. 10 As many as they may be, with seal write over to him, 11
Verily our adopted son shall he be Nadinu, to the word (which), 12 Belkasir, his son had spoken, did not give his
assent. (Then) Nadinu, 13 that for eternal days no one else should seize, 14 (his) rights of income and his
services, wrote out a tablet”. bout 1 lines are missing). For the continuation of the text see Zeitschrift fiir
Assyriologie III, pp. 366- 68. . “ 0 Nergal…. the son of Saggillai , 1 L bashi, the son of Dumuk, the son of
Saggillai, 32 the scribe Mardukbelzir, the son of Shûla, 33 the son of Usuramatbel. Babylon, in the month
Shabatu, on the 15th day, 34 in the 9th year of Nabonidus, King of Babylon”.
250
195
predeceased.
Two examples of quasi-adoption agreements from Old Babylonian Nippur are briefly
described, together with their terminology regarding important terms and clauses.
The division agreement of the living paternal estate of ṣumman this agreement includes an
adoption agreement between adopted father, ṣumman and adopted son Ur-dukuga, and a
division agreement between adopted son, Ur-dukuga and his daughter A assunu, with an
appendix to the agreement – usufruct/life interest to a person of unknown status: Luliya. The
text reads:
ṣumman his father had adopted Ur-dukuga son of ṣumman as their sic
son.
If in future Ur-dukuga says to ṣumman his father,
‘You are not my father’,
he will forfeit all houses, fields, and orchards and pay 1/3 mina of silver.
nd if in future ṣumman says to Ur-dukuga his son,
‘You are not my son’,
he will forfeit all houses, fields and orchards and pay 1/3 mina of silver.
With A assunu
the daughter of Ur-dukuga
by mutual agreement
they have divided it up by casting lots.
Thus have they sworn in the name of the king.
[7 witnesses.]
Ur-dukuga has given to Luliya 4 pi of grain annually, 3 sila of oil, and 1/4
(shekel?) of silver’s worth of wool Stone & Owen 1991:40-41, TIM 4 14).
The text can be divided in terms of the following important clauses:
Adoption clause (Nat 1): Father adopts son: ṣumman adopted Ur-dukuga son of ṣumman
as their (sic) son. – thus possibly also includes the mother/wife who receives the lifelong
interest.
Sanction clause: Here the sanctions are the same (differing from other agreements where
sanctions, if the father does not comply, are less severe than with the son) tukun-bi u4 kúršè (If in future) the son or father said to each other, ‘You are not my son or you are not my
father’, then both will forfeit all houses, fields, and orchards and pay 1/3 mina of silver.
ad-da-mu nu-me-en ba-an-na-du11 - he will forfeit.
196
Division agreement clause: by mutual agreement še-ga-ne-ne-ta.
Casting of lots clause: they have divided it up by casting lots. giššub-ba-ta in-ba-eš.
Oath clause: Thus have they sworn in the name of the king. mu lugal-bi in-pà-dè.
Usufruct- clause: Ur-dukuga has given to Luliya 4 pi of grain annually, 3 sila of oil, and
1
/4 shekel˹ of silver’s worth of wool.
Another example is evident in a Nippur quasi-adoption agreement, concerning the paternal
estate of Iquša living , apportioned between the father, his adopted son Ea-tayyar, and
biological son Ea-tarum, containing an adoption clause and a life interest clause in favour of
the father. It reads:
Iquša son of Dingir-kuta has adopted Ea-tayyar son of KU-[ ] as his heir.
On the day of the adoption, Ea-tayyar repaid the 4-gur grain debt of Ipquša
his father.
During Ipquša’s, life
Ea-turam the son by his wife
and Ea-tayyar the son by adoption
have made a new division of inheritance shares.
A 15-gin house plot next to that of Ipqu-Ea the son of Dingir-kuta,
a 1 iku field plot in the Enlil-gara field next to that of Ipqu-Ea, one-half of
whatever household property there is – (the above is the inheritance) share
of Ea-turam.
A 15 gin house plot next to that of Ea-turam his brother,
a 1 iku field plot in the Enlil-gara field next to that of Ea-turam his brother,
one half of whatever household property there is – (the above is the
inheritance) share of Ea-tayyar his brother.
Ea-turam and Ea-tayyar will each provide to Ipquša their father gur 2 pi
of barley, 3 mina of wool, and 3 sila of oil, paid annually.
Whichever heir fails to make this provision for him will lose his heirship.
Together they have sworn in the name of the king (Stone & Owen 1991:4142 BE 6/2 28).
The text can be divided as regards the following important clauses:
Adoption clause: Iquša son of Dingir-kuta has adopted Ea-tayyar son of KU-[ ] as his
beneficiary.
197
Sanction clause: Whichever beneficiary fails to make this provision for him will lose his
heirship. in-na-ab-kal-la-ge-ne, ibila lú nu-mu-na-ab-kal-la-ge, nam-ibila-ni-ta ba-raè-dè.
Division agreement clause: During Ipquša’s life and adoption - a new division of
inheritance shares by mutual agreement: še-ga-ne-ne-ta and
a-la in-ne-en-ba: have
made a new division of inheritance shares.
Casting of lots clause: None.
Oath clause: Thus have they sworn in the name of the king. mu lugal-bi in-pà-dè-eš.
Usufruct- clause: will each provide to Ipquša their father
gur 2 pi of barley, 3 mina of
wool, and 3 sila of oil, paid annually.
Other: On the day of the adoption, Ea-tayyar repaid the 4-gur grain debt of Ipquša his
father.
6.5
SIPPAR: IRREGULAR
AGREEMENTS
6.5.1
NA UR L
ELEMEN S’
ERMS
IN
DIVISION
Introduction
In Sippar, there are three natural elements clauses, which are as follows: Nat 4 the heart is
satisfied clause, Nat 10 trustee clause, and Nat 11 usufruct clause. The heart is satisfied clause
occurs in Sippar as well as in Tell Harmal.251 The trustee- and usufruct clauses are irregular
clauses.
6.5.2
Heart is satisfied - clause (Nat 4)
The hearts satisfied clause consists of the term li-ba-šu-nu-ú ṭà-ab which translates that their
251
Ellis (1974) translates and discusses four division agreements from Tell Harmal. The texts are not part of
the scope of this thesis. For instance the kings under whose reigns the agreements are concluded are different,
and the researcher decided not to include Ešnunna as part of this comparison study. However, the phenomenon
of the term, the “hearts are satisfied” which occurs in both the Sippar and ell armal texts, could be explored in
a further study.
198
hearts are satisfied.
In Sippar examples of these texts are:
S5 Lines 6: zi-zu gam-ru li-ba-šu-nu à-ab ú-ul i-tu-ru-ú-ma - they have divided, they have
gone through with it, and their hearts are satisfied.
In S7 Tablet (BM 92658) = CT 6 42b Line 8: zi-za ga-am-ra iš-tu pí-e - the division is
finished and their hearts are satisfied.
S8 Line 7: li-ba-šu ṭú-ub - their hearts are satisfied.
This constitutes an example of legal symbolism and expression; Westbrook (1991) refers
critically to Muffs’ (1969:30-83, 140-141) and Yaron’s (1970:408-416) statements of the
meaning of this expression and advanced a number of interpretations.
Muffs (1969) considers the expression as a receipt, as well as a quitclaim whereby the parties
concern have decided and committed to a particular course of action. It seems that this
expression is found in a sale (30-35), a named settlement of litigation (including a division of
inheritance to form part of this group) (51-56) and a receipt of a bride price (63-77).252
Yaron (1970:409) theorises that the expression is used in an agreement between parties to
confirm the existence of an obligation and the acknowledment that no future claims will be in
the future raised against one another.
Westbrook (1991:219) advises the expression prima facie as “utterly superfluous”.
He
continues by explaining his remark that the expression “...is unnecessary both as a receipt
(since it frequently follows an express statement that the receiver has been paid) and as a
quitclaim (since it frequently precedes an express statement that no claims may be made)”.
Westbrook (1991:220) points out that Muffs considers it as full and final settlement – hence
no further claim may be instituted against the other party.
252
Cf Greenfield’s 1976 14- 1
review of Muffs’ 1969 contribution.
199
Westbrook (1991:220) also refers to another text document wherein this expression has been
found, namely a named “simple receipt”, B P 7 “A has received from his brothers B and C
10 shekels of silver that were assigned to him in his inheritance-share document. His heart is
satisfied.
e will not contest it again. [ ath, witnesses]” Westbrook 1991
0.
Another example of a family deceased division agreement is found in BAP 101 which
Westbrook summarized as follows:
(1-4)[Dimensions and location of property], (5-8) the inheritance share of A
that he divided with B and C, (8-12) it is completely divided; his inheritance
share is complete; his heart is satisfied; he shall not raise claims (13-16)
[Oath,etc] (Westbrook 1991:220 fn. 9).
Westbrook’s interpretation is that “...the only right relinquished, is that which forms the
subject of the no-contest clause. i.e., not to challenge receipt of the money due in the
inheritance tablet”.
1991
However, this analysis is only viable, according to Westbrook
0 , if Muffs’ analysis is used.
Westbrook 1991
meaning”.
1 mentions Yarons’s interpretations as imparting a “simpler, universal
The expression constitutes a receipt.
o Westbrook it seems that Yaron’s
statement denies that the different phrases found in different legal documents perform various
functions and he criticises that such a position is “not doable”.
he phrase “had a simple, but distinct and very important purpose” Westbrook 1991
.
The expression is one of “emotional satisfaction” and is “purely empirical”. It is regarded as
a “conclusive evidence clause” Westbrook 1991
. The person declaring that his/her
heart is satisfied, asserts his or her satisfaction “not with the calculations concerning division
of property or measurement of land, but with an oath taken as to those calculations – is barred
from subsequently questioning their accuracy” Westbrook 1991:223). With respect to an
example regarding division of property in AP14 which Westbrook provides, lines 4-7 run as
follows:
(4-7) ...Then an oath was imposed upon you and you swore to me
concerning them (i.e., the property) by the goddess Sati, and my heart was
satisfied with that oath that you took for me concerning those goods of
yours; and I hereby remove myself from you from this day forever. I will
200
not be able to sue you.... (Westbrook 1991:222 fn. 22).
In this regard, see also LH paragraph 178 regarding an unmarried priestess and her brothers’
agreement, that she must relinquish her inheritance share to her brothers, who quid pro quo
gave her an income in the form of grain, oil and wool. Westbrook explains the paragraph as
follows “they shall give her grain, oil and wool like the value of her inheritance-share and
satisfy her heart” and contends further that if they do not fulfil this to satisfy her heart, she has
the option of giving her property to a farmer, or receiving the full income. In this phrase the
onus is on the brothers to prove that the grain, wool and oil were given to their sister;
therefore the onus is not on her to prove that the portions received were not a quid pro quo as
regards her inheritance share given to her brothers (Westbrook 1991:224).
6.5.3
Trust - clause (Nat 10)
In Sippar family deceased division agreements, S5, S19 and S25 in part C a trust clause was
incorporated as part of the terms of the agreement.
For instance in text S25, Schorr (1913:269-270) expresses the opinion that the text is a
recorded division agreement concerning the deceased estate of Awîl-Adad between WaradSin, Sin-idinnam, Ilî-bani and their nephew, Ina-Êulmaš-zêr, son of their late brother Ilî-bani,
during the reign of King Ammi-saduga (Schorr 1913:269-271).253
Ina-Êulmaš-zêr their
nephew receives by a division agreement, a house property. It appears that the fruits accrued
from the house property belong to all the beneficiaries together, which they administer
together as a kind of fief, or a trust construction. The trustees have fiduciary obligations to
manage and oversee the trust property to the advantage of the beneficiaries’ enjoyment
thereof.
ne can deduce that the brothers, as “trustees” over their nephew’s house goods,
bear the fiduciary obligation to manage the property to the advantage of the nephew. The
oldest beneficiary has taken, in the presence of his co-beneficiaries, the ceremony oath with
the emblem of the Ellil.
The text reads as follows:
31/2 Sar Ki. Gál property, belonging to 10 Sar Ki Gál property in Sippar253
Sippar text, S25 is from Schorr (1913:269-271). The text is transcribed and translated by Schorr (in
German with the researcher’s translation in English.
201
Amnâ-num which was bought by Sin-nadin-šumi, next to the house of the
Bittetum the sal-me priestess of ṣamaš, the sister of his father, and next the
house of the Sin-idinnam […] of which it is a front side of the main square,
second front side the undeveloped land of the ministry officials is […] is the
inheritance share of Ina-Êulmaš-zêr, son of the Ilî-bani, the son of her
brother whom he has received (in the division) with Warad-Sin and Sinidinnam, the children of Awîl-Adad, the brothers of his father, as an
inheritance share. They have divided, they are ready. Their heart is
satisfied. The devices of the father's house which (yet) emerge belong to
them together. The fief of the father's house they will administer together.
After concerning all acquired ownership of Awîl-Adad, their father, WaradSin, compared with Sin-idinnam [and Ina-Êulmaš-zêr], the children of the
Awîl-Adad the emblem of the Ellil, in the sanctum of the god, and have
cleaned themselves, they have sworn that they will not in the future claim
against another, by ṣamaš, Marduk and King Ammî-saduga. In the year in
which King Ammi-saduga built at the mouth of the Euphrates the great wall
(Schorr 1913:269-271).
6.5.4
Usufruct - clause (Nat 11)
A usufruct is a legal institution and term deriving from Roman law and is used today in some
western legal systems. It derives from the Latin word usufructus, meaning “using the fruit”
of land.254 For purposes of this thesis, it means the right to enjoy the use of another’s property
for a specific time-period, even extending up to a lifetime, as long as the said property is
maintained in reasonable order.255
In a usufruct clause, there are no specific terms and the context of the text is important to
arrive at an interpretation of a usufruct-construction.
LH, paragraph 178:83 is a lengthy one, explaining the position of a certain priestess regarding
her dowry, what she may do with the estate, and an outline of provisions made to her by her
brothers, on the death of her father, regarding food, oil and clothing allowances. If the
brothers do not comply she can rent the property to any tenant she pleases, who must then
provide her with the income from the property. Implicitly she will enjoy the use of the field
and orchard, but she is not allowed to sell or alienate it, for the inheritance belongs to her
brothers.
In Roman law and contemporary law, this is almost the same as a usufruct-
construction, where the brothers are the dominium owners of the property and the sister the
usufructuary. The sister enjoys the use and income of the fields and orchards; however, she
254
255
Cf. Chapter , under the heading “usufruct”.
Cf. Kaser (1984:148-152).
202
cannot alienate the property and her brothers must comply in giving her the income (read
together with LH paragraphs 180-183 regarding the priestess’s privileged position as regards
the inheritance in relationship with the rest of her family, especially her brothers).256
In the Sippar, this clause occurs in the following three texts:
In S5 an exchange took place. It seems from the context in the text that the sister, a
kulmašītu priestess, receives the house as a usufruct, and one brother as per agreement
becomes the bare dominium owner.
In another Sippar text, S17, it seems a usufruct clause was implemented by the contractual
parties, the brothers and a priestess sister, regarding their predeceased parents’ estate
assets. It seems from the context of the text that Awât-Aja, sal-me priestess of ṣamaš,
had a usufruct regarding certain assets from her mother; after her mother, and thereafter
their sister’s death, the three brothers would receive full ownership. The researcher opines
that the three brothers and sister concluded a division agreement, only in regards to the
division of Mâr-ir itim, one brother’s awarded divided assets.
he usual terms that they
have shared are listed, and the contractual parties agree that the division (regarding Mârir itim’s division is complete - from the straw up to the gold, and that no one will
complain against the other. Then an additional agreement was recorded regarding the
awarded divided assets of their sister, Awât-Aja, sal-me priestess of ṣamaš, and the
inheritance of Bêliznu, their mother.
Text S19. The text is a recorded division agreement between three brothers Lipit-Ištar, IbiSin, Sin-mâgir, and their sister, Lamâzî, and also the children of a (probably deceased)
brother Ilušu-ibišu, namely Sin-idinnam and R š-ṣamaš. Schorr (1913:258) interpreted
lines 14-15 to signify that the sister’s inheritance, due to her status and occupation as a
priestess, remains the property of the brothers, and at the time of her death becomes the
common property of the brothers or their successors. Practically it seems that the awarded
asset of inheritance of the sister, serves to her advantage as a lifelong usufruct. See in this
regard the translation: “Also the inheritance of Lamâzî, which belongs to her as sal-me
priestess of ṣamaš, their sister, to them together”; with the text: ù ap-lu-ut la-ma-zi sal-me
256
Cf. Kaser (1984:148-152).
203
ilušamaš a- a-ti-šu-nu ša bi-ri-šu-nu.
6.6
CONCLUSIONS
This evidence of contractual terms appears to indicate that each term conveys a specific
meaning for the parties. The recorded contract is unfortunately only a snapshot of facts and
legal practices, related to a few individuals in a given time and place, reflecting the manner
and terms of a specific agreement, which they consensually agree to.
he term’s context may
direct the reader to its possible meaning; however, the context should be kept in mind to
establish firstly, the type of agreement and, secondly, what and how the contractual parties
devise the provisions of the contract, considering each provision on its own and thereafter
reading all the provisions as a whole text.
In this chapter, the different terms were discussed and categorised within the context of an
analysis-model. In consideration of the discussion, a tablet outline format (infra) illustrates
the conclusion remarks of each term within its type of element-category, which include the
essential terms and regular natural terms. Lastly, some remarks on the irregular natural
elements-terms are given.
The table (infra) indicates the important terms of the essential elements, as inscribed by the
scribes on clay tablets.
Table 6 Outline of essential elements of all division agreements
Essential elements in all three city-states
Mutually
ba
agree
divide
še-ga-ne-ne-ta
or
share (allot)
Inheritance
share
a-la
inheritance
zâzu
to to agree, be in to
agreement
divide
used together with
geš-šub-ba-ta
(casting
of
lots), ibila (beneficiaries)
ziti
share
share of
Beneficiary
ibila
share
beneficiary
204
One essential element of a division agreement held that the contractually parties mutually
agreed to all the terms of the agreement. Certain terms are used which prove that consensus
was reached. The Sumerian term ba is reflected in the division of an estate wherein the
beneficiaries agree to the division, i.e. to divide or to share. Other Sumerian terms usually
used together are Sumerian terms še-ga-ne-ne-ta (by mutual agreement), giššub-ba-ta (casting
of lots), in-ba-eš (divide up) and ibila (heirs/beneficiaries) which are present.
In the PSD,257 the root word ba means, “allot”. he
kkadian equivalent is qiāšu; zâzu; and
other Akkadian terms: qiāšu “to give, present” and zâzu “to divide”. In the PSD258 the root
word šeg means agree. The written še denotes “to agree, be in agreement; to obey”. A
problem with the categorisation of agreements can occur with the term še-ga-ne-ne-ta, which
also occurs in quasi-adoption agreements with an adoption and division clause.
In a few texts when the beneficiaries or heirs divide the estate, the main terms še-ga-ne-ne-ta
(by mutual agreement),
giš
šub-ba-ta (casting of lots), in-ba-eš (divide up) and ibila
(heirs/beneficiaries) are all present in one text. In a few texts, the terms še-ga-ne-ne-ta and
geš-šub-ba-[ta in-ba]-eš both occur together, in one line of the text.
The Akkadian term zīsu (zēzu) is an adjective that means undivided (held in joint ownership),
also ziztu or zâzu which translates as “divided the shares” (Oppenheim 1961:CAD Z, 149).
Black, George & Postgate (1999:446) refer to zâzu(m) which denotes to divide, get a share,
also used in the text-cases of property and estate. Alternatively, the term means: “distribute or
become separate, distributed or divided”.
Another important term in division agreements is the inheritance share clause, which denotes
two terms: the Sumerain a-la and Akkadian term zitti. In the PSD259 the root word al
means divide. The written terms are al-ha; a-la; al.
Black, George & Postgate (1999:449) refer to ziti as zittu(m) or zīzātu(m); also zinātu which
means share (Sumerian equivalent a-la, a-la-ba or a-lá). This denotes the portion of the
estate, other assets, the division and the total to be divided.
257
The Pennsylvania Sumerian Dictionary. http://psd.museum.upenn.edu/epsd/nepsd-frame.html. Cited 5
February 2012.
258
The Pennsylvania Sumerian Dictionary. http://psd.museum.upenn.edu/epsd/nepsd-frame.html. Cited 5
February 2012.
259
Pennsylvania Sumerian Dictionary. http://psd.museum.upenn.edu/epsd/nepsd-frame.html. Cited 5
February 2012.
205
In some of the division agreements in all three of the city-states, the beneficiary clause is
found, namely ibila. In this thesis and discussions regarding inheritances, the option was
either to refer to “beneficiaries” or to “heirs”. Both convey, for the purposes of this study, the
same meaning; hence, the word “beneficiary” is used in this thesis.
he word “heirs” derives
from early Roman law.
The ibila, when translated as heirs/beneficiaries, are not necessarily only the sons of the
deceased father, excluding the daughters. In some texts, daughters may inherit, and some
inheritances were subject to the preference rule, with respect to the eldest son. Thus, with
varying time-periods and places, as well as family, social and economic circumstances,
different rules of succession may apply regarding the continuation of the paternal estate, or
the transfer of the family estate property to adoptees, daughters and sons in different juridical
relationships.
See the table outline (infra) regarding the natural terms in division agreements, which denote
the legal practices in all three the city-states.
Table 7 Outline of the natural elements of all the division agreements
Natural elements in all three city-states: regular occurrence in all three city-states
Bringing in
búr-clause
(Nat 2):
give in balance to X
Division by lots
giš
šub-ba-ta
isqu
(Nat 3)
casting of lots
casting of lots
“as
gamāru
ištu urāṣum
uch as there
is” clause
completeness, all of the from straw up to gold
(Nat 5)
assets
No claim clause
inim nu-um-gá-gá-a
(Nat 6)
shall not raise any claims brother against brother will not claim
(speak a word)
Oath clause
pàd
(Nat 7)
to name (in the name of X)
šeš-a-ne-ne ba-ani-ib-ge4-ge4-ne
against one another
206
banšur and/or zag-gú-lá and/or síb-ta are reading together with mu-
Preference portion
gis
(Nat 8)
nam-šeš-gal-šè
(ceremonial) table, a cultic table: privilege/firstborn-share; eldest
brother
Equal shares
mi-it-ha-ri-iš
(Nat 9)
enumerated to the same extent or degree
Witnesses clause
igi
(Nat 12):
face, in front of
“Bringing in” (Nat 2): In the division texts, the búr clause was used, and states that one
contractual party will pay equally to his brother/s. This term is reflected mainly in the Nippur
texts N1-6, 8 & 9; the term variant usually contained in the text is: šeš-a-ne-ne-ra in-na-anbúr - “he paid in balance to his brothers”.
Division by lots (Nat 3): is denoted by two different terms, namely the Sumerian term giššubba-ta, which mostly also collocates with the terms še-ga-ne-ne-ta (in mutual agreement) and
in-ba-eš (to divide). The term ĝeš-šub translated as “lot, share”. The Akkadian variant isqu
translates as “lot; share”. This occurs mainly in Nippur and one text in Sippar. In two other
Larsa texts, the other derivative in Akkadian is used, namely isqu.
The clause “as much as there is” (Nat 5), contains different terms, all of which indicate that
there is a finality and completeness regarding all of the assets involved, with small
discrepancies in variants and meanings.
Gamāru, signifying completeness and finality, encompasses all of the assets involved and if
read together with the usual clause, they agree to divide ištu urāṣum, also denoting the same
concept ištu urāṣum.
he term translates as “from straw chaff to gold”.
No claim clause (Nat 6) the variant: inim nu-um-gá-gá-a (shall not raise any claim); another
variant: šeš-a-ne-ne ba-ani-ib-ge4-ge4-ne (his brothers shall not raise claims against him).
Oath clause (Nat 7) in the PSD,260 the Sumerian word pad translates as “find” and is used in
260
Pennsylvania Sumerian Dictionary. http://psd.museum.upenn.edu/epsd/nepsd-frame.html. Cited 5
207
the texts in different periods. It is also written as pàd, which also translates as “to find,
discover; to name, nominate”.
he
kkadian variants are atû “to find; discover”; nabû “to
name”. Different kings and gods are named in the oaths, especially in the Larsa and Nippur
deceased division agreements, but sometimes omitted in the Nippur texts (in Sippar, even the
city itself). The role of the gods and their influence as an aid in enforcing contracts may
reflect to an extent the purpose of an oath, and the overall meaning of the supernatural role in
inheritance legal traditions and the said agreements.
Preference portion (Nat 8) or privileged portion or right of primogeniture (first born-share)
denotes the situation where the eldest son receives an extra portion or percentage of the estate
assets, before the division of the deceased paternal estate takes place. The use of the terms
banšur and/or zag-gú-lá and/or síb-ta are read together with mu-nam-šeš-gal-šè.
gis
Equal shares mi-it-ha-ri-iš (Nat 9): In Reiner (1977: CAD M 2, 132), under mit āriš as an
adverb, the term is defined. It is explained as follows under heading 1: each one of two or
more persons, objects etcetera, enumerated to the same extent or degree.
Witnesses clause (Nat 12): in the PSD261 the root word igi means face or in front of.
The
terms are written as igi; i-bí; igì; i-gi. The Akkadian variant mahrum refers to “first, former,
earlier” and qudmu to “front side ”.
In addition, in the different city-states, there were certain exclusive legal practices reflected in
terms only used in such a city-state.
One irregular natural element term is an adoption clause, which occurs only in one Nippur
text. This is an anomaly in a family deceased division agreement. It normally occurs in a
division agreement while the estate owner is still alive; the owner together with the children
and adopted child agree to the division of the agreement, normally subject to a usufruct or
trustee clause. In the Nippur text N4, an adoption/support clause is part of a family deceased
division agreement containing the term. The basic meaning of Sumerian ba-da-an-ri is “to
adopt”.
February 2012.
261
Pennsylvania Sumerian Dictionary. http://psd.museum.upenn.edu/epsd/nepsd-frame.html. Cited 5
February 2012
208
In Sippar there are three irregular natural elements clauses: namely, Nat 4 the “heart is
satisfied” clause, Nat 10 trustee clause and Nat 11 usufruct clause.
The “heart satisfied” clause consists of the term li-ba-šu-nu-ú ṭà-ab which translates that their
hearts are satisfied.
In a Sippar family deceased division agreement, S5, S19 and S25 in Part C, a trust clause was
incorporated as part of the terms of the agreement. One can deduce that the brothers, as
“trustees” over their nephew’s house goods, bear the fiduciary obligation to manage the
property to the advantage of the nephew.
In Sippar text S5, S17 and S19, the contractual parties implemented a usufruct clause. The
contractual parties were brothers and a priestess sister, with regard to their predeceased
parent/s’ estate assets. With a usufruct, brothers are the dominium owners of the property,
and the sister is the usufructuary. The sister enjoys the use and income of the fields and
orchards; however, she cannot alienate the property and her brothers must comply in giving
her the income.
Each term’s meaning, in context of the text, laid bare the responsibility of the scribe.
he
scribe took due care in his or her articulation of the agreed-upon terms and responsibilities of
the contractual parties, unto a clay tablet. For this, the scribe would carefully choose his/her
words under the influence of his/her scribal school tradition. Keeping in mind that this kind
of agreement, as shown with the different legal practices such as a trust, usufruct, preferential
share and “bringing in”, can have lifelong consequences for the contractual parties concerned,
regarding their rights and obligations towards one another, and other parties as per the agreed
terms of the agreement.
209
210
PART B
CONTENT ANALYSIS AND COMPARISON STUDY
CHAPTER SEVEN
CONTENT ANALYSIS AND TYPOLOGICAL COMPARISON OF
ELEMENTS IN FAMILY DECEASED DIVISION AGREEMENTS IN
EACH OF THE CITY-STATES: LARSA, NIPPUR AND SIPPAR
“The more incidental a value judgment of law in question is to the purpose of
the source, the less it is likely to be biased in its report”
(Westbrook 2003:6).
Forty-six family deceased division agreements are identified and chosen
from Old Babylonian Larsa, Sippar and Nippur. These agreements are
compared in a jurisprudential content analysis, named the analysis-model.
Each family deceased division agreement is systematically categorised,
outlined and studied within a framework of prerequisite essential elements,
together with two other categories of elements, namely natural and
incidental elements. The differences and similarities of the agreements
studied in this framework of categories and sub-categories in a city-state are
then compared with each other in only the given city-state. This
methodology is an attempt to simplify the analysis of the different
components and details of the agreement and to provide a reflection on the
law practices and scribal traditions in the family deceased division
agreements of Old Babylonian Larsa, Sippar and Nippur.
7.1 INTRODUCTION
Each Old Babylonian city-state, namely Larsa, Nippur and Sippar, is individually analysed in
terms of an analysis-model as discussed in Chapter 5. Firstly, with the aid of a content
analysis, it is determined if the chosen text constitutes a family deceased division
agreement.262 Then the details of the agreement, regarding the categories of natural and
262
The scope of this thesis does not allow the detailed outline of the backgrounds. However, a detailed study
of one city-state at a time, in relation to its division agreements and other legal agreements, will in a further
211
incidental elements, are studied and compared within the specific category and city-state to
reflect some of the important law practices and scribal traditions. This content analysis and
comparison chapter is congruent with the reference chapters in Part C.263 As reflected in the
methodology chapter, the different categories of elements and their sub-categories each have a
number, in order to assess the texts and their details in Part C more easily.264
7.2 LARSA (TELL SIFR): COMPARISON OF TERMS IN DIVISION AGREEMENTS
7.2.1
Introduction
Larsa265 (Sumerian logogram: UD-UNUGKI, read Larsamki UD-AB. Also arar, ararama,
ararma, larsa, larsam) was an important city of ancient Sumer, the centre of the cult of the
sungod Utu. Larag, as stated by the Sumerian king list, “Larag” L -RA-AKki) was one of
the five cities to “exercise kingship” in the legendary antediluvian era.266
Some notes on Larsa’s archaeological-, residential and geographical-, as well as institutional
backgrounds are given. Following with a content analysis and comparison study of the
different elements-categories.
7.2.2 Archaeological background
Larsa was an ancient site covered by the ruins of Senkara, in the southern part of the land,
first known as Sumer and later as Babylonia. Important information about this ancient site
was derived from the named “Loftus’ Travels and Researches in Chaldaea and Susiana
(1857)” of which the tablets are kept in the British Museum. Several illicit diggings occurred
study give good insight in archaeological, residence, geographical and institutional backgrounds.
263
In Part C, each city-state’s family deceased division agreements is referred to with a specific number,
namely “L” stands for Larsa, “N” for Nippur and “S” refers to Sippar.
264
Part C consists of the following divisions, namely source, family outline, outline of estate assets (in some
instances), translations with their transcriptions, followed by a table format outline of the prerequisite essential,
as well as natural- and incidental elements of each division agreement in a certain city-state.
265
The root is larsa(m); that is, like the city uri(m), it ends in a final “m” which appears only if it is
followed by a grammatical particle beginning with a vowel. The etymology of the word is still unknown, but
even in the oldest Sumerian texts it is treated as a Sumerian word. This, however, is no proof of its Sumerian
origin. The equation of the form zararma with larsa(imn) in the syllabaries does not prove that the former is
Sumerian, while the latter is Akkadian; there is some probability that both forms represent variant dialectal
pronunciations of the same word. As for the final - m a of the writing zararma, this “long” writing, involving
the addition of a seemingly unjustified vowel to the root, is not uncharacteristic of syllabary material; the latter
are for fish, oil, and especially tax payments in silver (Kramer 1943:133).
266
See PSD and Black et al (2006); ETCSL; The Sumerian King List.
212
at the site and vast numbers of cuneiform tablets which consist mainly of contracts and letters
are now located in the Louvre and Yale University. Contract documents kept at the Louvre
have been studied and published by the French scholar, Charles F. Jean; but the Yale
Babylonian collection, which “covers a wide range of activities and extends over most of the
period of the Larsa dynasty, that synchronizes with the First Dynasty of Babylon”, has
remained largely unpublished. Faust studied one hundred and seventy-six selected contract
tablets. All except three, were from the reign of Rīm-S n. Rīm-Sîn is considered to have
been the last independent ruler of Larsa, until the King
ammu-r pi of Babylon usurped his
kingdom (Kramer 1943:133).
William Loftus first excavated the site of Tell es-Senkereh, then known as Senkara, in 1850 in
less than a month. Loftus is remembered for his pioneer excavations at Susa and Warka, and
one of his “remarkable single discoveries were made in
pril, 18 4 at
ell Sifr in Iraq”
(Moorey 1971:61). Moorey (1971:61) opines that Tell Sifr, is a mound visible among other
large mounds from Senkara across the ancient canal, Shatt al Kara. Before its discovery by
scholars, it had “already been honey-combed by a notorious group of clandestine excavators
searching for gold in Parthian graves”. It was after them that the site was named “Sifr”, “after
the numerous copper objects they discovered there, much no doubt to their chagrin” Moorey
1971:61).
In the early years of archaeology, the focus was on obtaining museum specimens rather than
scientific data. Loftus recovered some building bricks of Nebuchadnezzar II of the NeoBabylonian Empire, which enabled the site’s identification as the ancient city of Larsa. Much
of the effort exerted by Loftus was focused on the temple of ṣamaš, rebuilt by
Nebuchadnezzar II. Inscriptions of Burna-Buriash II of the Kassite dynasty of Babylon, and
ammu-r pi of the First Babylonian Dynasty were also found.267 Walter Andrae briefly
worked at Larsa in 1903. Edgar James Banks inspected the site in 1905. He found the site
prone to widespread looting by the local population.268
The first scientific excavation of Tell es-Senkereh occurred in 1933, with the work of Andre
Parrot. Parrot worked at the location again in 1967.
In 1969 and 1970, Jean-Claude
267
See William Loftus (1857) regarding his Travels and researches in Chaldæa and Susiana; with an account
of excavations at Warka, the Erech of Nimrod, and Shúsh, Shushan the Palace of Esther, in 1849-52.
268
Cf. Banks (1905:389-392).
213
Margueron excavated Larsa. Between 1976 and 1991, an expedition of the “Delegation
Archaeologic Francaise et Irak”, led by Huot, excavated Tell es-Senkereh for thirteen
seasons. The brief excavations conducted in Larsa in 1933 by André Parrot revealed a
ziggurat, a temple to the sun god, and a palace of Nur-Adad (ca. 1865- 1850 BCE), as well as
many tombs and other remains of the Neo-Babylonian and Seleucid periods.269
7.2.3
Residence and geographical background
Old Babylonian Larsa grew powerful, but it never accumulated a large territory area.
Evidence from a French survey indicated that Larsa was one of the important cities in south
Mesopotamia, and consisted of an area of about 190 hectares at the beginning of King
ammu-r pi’s reign (Crawford 2007:82). The city of Larsa as many other city-states were
walled, and the city had five gates. As with other Old Babylonian city-states, relations
between town and the countryside were close. Many inhabitants worked at the outskirts of
their settlements (Crawford 2007:82).
There were cultivated gardens, orchards and
plantations. The roads unite religious and administrative areas, including the main temple of
Ebabbar and a ziggurat (Crawford 2007:83).
In the early Babylonian period, Larsa’s power grew steadily, although it continued to wage a
power struggle with Isin. Both tried in vain to gain control over Nippur (Knapp 1988:138).
t its peak, under King Rīm-Sîn I, Larsa together with Ešnunna and Babylon developed as
three powerful Amorite states. Like the other two states, Larsa had ten to fifteen kings in
alliance with it, as revealed by a letter written to Zimri-Lim of Mari (Knapp 1988:145, 148149). During the reigns of Warad-ṣin and Rīm-ṣin, the kingdom of Larsa was large, although
temporarily, and even include the region of Nippur as far as east of the Tigris river (Leemans
1954:1).
After the defeat of Rīm-ṣin I by ammu-r pi of Babylon, Larsa became a minor site.270 Later
in the ancient Babylonian period, in King Samsu-iluna’s 10th regal year, Larsa was largely
deserted (Oppenheim 1964:407-408).271
Cf. Parrot 19
in his “Villes enfouies”. lso Parrot’s 19
“Trois campagnes de fouilles en
Mésopotamie” and “Les fouilles de Larsa, Syria” 1968).
270
exts L1, L , L and L4 are from the Rīm-S n I period, text L from the Rīm-Sîn II period, and L6 & L7
from the ammu-r pi period.
271
Two texts L8 and L9 are from the Samsu-iluna period.
269
214
7.2.4 Institutional background (religion)
he god ṣamaš (Sumerian name is Utu) was the primary god (Andersson 2008:13) in Larsa.
In the letter from King Sîn-iddinam to the god Utu, the distress of Larsa and the importance of
the role of the god for the city, were clearly noted.272
In Old Babylonian Larsa during the reign of king Warad-ṣin, the temple played an integral
role in the economy. The temple personnel supervised the economic distributions, its assets
and preparation of offerings.
However, later the influence and power of the temple
diminished and the citizens were more responsible for the flow of income to the temple. This
had an influence on the temple offices to such an extent, that even in the division agreements,
some provisions were made for the occupation of temple offices for certain short periods and
these offices could be leased and sold (Goddeeris 2007:201).
Some of the limited records available, are the Old Babylonian archive of Shep-Sîn during the
period of
ammu-r pi Goddeeris 2007:202,206-207). With the study of this archive, there
seems to be a period in which individuals, in their economic activities and dealings, had some
kind of “franchise”. Those were to the advantage of the temple, for they diminished personal
management costs, by carrying the economic risks in their position as entrepreneurs. These
entrepreneurs have different names, and one was for instance named the ‘overseer of
merchants’ (Goddeeris 2007:206).
272
The text (translation by Black et al [2006], ETCSL the Temple Hymns) reads as follows: Lines 1-5: Say
to Utu my lord, the exalted judge of heaven and earth, who cares for the Land, who renders verdicts; just god,
who loves to keep man alive, who heeds entreaty, who extends mercy, who knows ... compassion, who loves
justice, who selects honesty, ..: Lines 9-11 ... just god, prince who determines all the fates, my lord, father of the
black-headed: this is what Sîn-iddinam, king of Larsa, your servant, says: Lines12-20 Distress has been caused
in your city Larsa, which you have chosen in your heart. The broad squares where days have been passed in
merriment have been reduced to (1 ms. has instead: are left (?) in) silence. Your commendable troops who were
assembled have been annihilated (?) like reeds from a reed fence splitting apart. Your young men have been
harvested like barley at the due time; they have been picked and have been plucked like ripened fruit (?). The
people have been smashed like terracotta figurines; they (?) have perished all together. An evil storm took away
the little ones from the laps (?) of their mothers. The people ...; their appearance has been (?) changed.
Overwhelming troops have been set loose, ... the Land ... like flour. O youthful Utu, like an enemy you stand
aside from your city Larsa. Lines 34-44 O youthful Utu, for that reason look favourably upon your city Larsa!
Say " las!" for your city! Say " las for the sanctuary!”...Extend sympathetic compassion to Larsa! ake heed of
the causes of distress, and make ... leave ... Larsa! Remove ... and distress from its midst (?) (1 ms. has instead:
within Larsa)! ... the frightful (?) ... in Larsa, so that ... may escape the clutches of death. ... may its seed be
great! May ... sing your praises! (Electronic Text Corpus of Sumerian Literature.
http://etcsl.orinst.ox.ac.uk/section3/tr3205.htm). Cited: 23 January 2012).
215
7.2.5
Essential elements
7.2.5.1 Introduction
The essential elements, or basic requirements, must be present for an agreement to be
categorised as a division agreement.273
7.2.5.2 Family connection of contractual parties/co-owners
The ten family deceased division agreements, were each an agreement between family
members. In most of the Larsa texts, the brothers were the contractual parties, and only in a
few texts other family members, of whom the majority are sisters, were included as
contractual parties to the particular agreement/contract. The family connection outline is thus:
In L1, a family connection exists between a sister and two brothers where they agreed to a
recorded division of the paternal estate.274
In L2, a family connection of the contractual parties occurred and reflected a division of
the father’s deceased estate between his sons.275
In L3, there is an indication of a family connection between the contractual parties who
were brothers, and an interpretation of the text shows that it was a parental estate of either
the mother or the father.276
In L4, a family connection existed between four brothers.277
In L5, the contractual parties seem to be brothers, due to the terms: brother against brother
will not raise a word against another.278
273
See table 21 in the conclusions-section of this chapter to understand the logical flow of the essential
elements of Larsa.
274
Children: Migrat-dSîn, Ubar-dSîn and Ì-lí-sukkal. Connection implied in no-claim section: see Part C.
275
The brothers are named B lessunu and išš tum. Connection implied in text - see Part C.
276
The brothers are referred to as Sîn-imgur and Sasiya. Referred to as children of X (dumu- eš)
277
The four brothers are named ṣamaš-m gir, pīl-Sîn, Apil-ilišu and Lipit-Ištar. Leemans (1954:37) refers
to the one brother ṣamaš-m gir as the eldest; however, there is no indication in the text to substantiate his
viewpoint. See discussion infra under heading “natural elements”. See connection implied in no-claim section
and “as much as there is”-section: Part C.
278
See this line implied in text: u4-kúr-šè šeš šeš-ra inim-ma nu-gá-gá. The four brothers are named
216
In L6, a family connection existed between five brothers as contractual parties to the
division of the paternal estate.279
In L7 and in text L8 the contractual parties of the agreement, which was concluded in two
parts, were between family members and in this text, it was a division agreement of the
paternal estate between a sister and her two brothers.280
In text L8, the children of text L7, again concluded a division agreement where some of
their children received the awarded divided assets in the previous king’s year (reign of
King Samsu-iluna’s 4th regal year).281
Text L9 is a division agreement of an unknown paternal or maternal estate between three
family members regarding one family member’s282 awarded divided assets.283
In L10, a family connection exists between two brothers by the birth order of the eldest
and youngest brother.284
7.2.5.3 Estate owner/ Benefactor: father / mother /other kinship relationship
In L1, L2, L3 and L4285 as well as in L , L6, L9 and L10 the father’s estate was divided;
however his name is not mentioned.
In text L7, although it is mentioned in the text that the father’s estate was divided, his name
was not mentioned. Therefore, the estate owners could have been the father and/or the mother.
The same instance applies to L8, where it seems that the brothers were predeceased, because
Buzazum, Iâ and Ludlul-Sîn and Abî- âbum.
The five brothers are named Idin-ṣamaš, Ir bam-Sîn, Ibbi-Ilabrat, Ilî-nâ ir and Mâr-Ir itim. See
conncetion implied in no-claim section of text: Part C.
280
The contractual parties are Minani, Ubar-Sîn and Ilî-sukkallum regarding the awarded divided assets of
all three children. See connection implied in “as much as there is”- section of the text in Part C.
281
This is a recorded division agreement between Ilî-sukkallum’s sons w l-ilî and illi-Eštar, Minanum
(child of Migrat-Sîn) and Ubar-S n’s sons Idin-ṣamaš and his brothers. The division agreement of the estates is
possibly between the sister Migrat-Sîn and her nephews. Reference to connection in text in the inheritance
portion-section of the text. See the term: dumu- eš (children of X).
282
Lipit-Ea.
283
The family connection is through the term a - i-šu (line 22) also meaning nephews and cousins
(Andersson 2008:15 fn. 44). Thus each contractual party is either a brother or cousin or nephew.
284
Ilšu-ellassu (older brother) and Abaya, the younger brother. Using term: šeš bàn-da (younger brother).
285
No name of the father is given, although the reference is to his estate as can be concluded in nì]-ga-ra éda-da-[e-ne] a-na gál-àm - estate of their father’s house as much as is extant.
279
217
their children inherited, where only one sibling/sister inherits also with them.
7.2.5.4 Estate assets: fully or partially divided
In the context of each text an assessment could be made, to a certain extent, on whether all or
some of the inherited estate assets were divided and awarded to the different contractual
parties, according to a division agreement. Such an assessment follows:
In L1, most of the valuable assets were divided and the said assets were: a house, a
garden, slaves and house objects, as well as all three children’s awarded divided shares.
In L2 valuable assets such as a built house, wood and an orchard were divided, although
no slaves were mentioned. Reference was made to “as much as there was” as follows
“movable ground, orchard, furniture, goods and liquidities as much as there was, which
belonged to their father, they divided”. The conclusion could be reached that all of the
inheritance assets were divided by agreement.
In L3, unfortunately, the text is damaged and reference is only made to a garden, although
both brothers’ divided shares were recorded.
In L4, all of the valuable estate was divided in response to the words: “estate of their
father’s house as much as is extant” and the words included “house, garden, female and
male slaves, estate of their father’s house as much as is extant, they [have divided] into
equal parts”.
In L5, only the awarded shares of immovable property were mentioned.
In L6 in the context of the text, the whole of the deceased parent’s estate was divided
regarding all six brothers’ agreed awarded assets.
In L7, the divided shares of certain immovable properties were mentioned in the text. The
references “they divided the house of their father” and “as much as there is” were
included, and it seems from the context that the whole of the paternal estate was divided.
218
In L8 in the context of the text, all of the inheritance assets were divided, although only
certain immovable properties were mentioned.
The L9 text refers to a partial division, regarding only the recording of the share of LipitEa’s awarded divided assets, which consisted of gardens, houses, and also mentioned
wooden objects, in lines four and five, as well as oiled picket door(s) and picket doors. No
slaves were mentioned in the text.
In L10, either the whole of the estate was divided, or there were many assets of value,
which included a house, garden, and furniture, and both brothers’ divided portions were
reflected in the texts.
7.2.5.5 Mutual Consent
The beneficiaries of the deceased paternal estate in the conclusion of a family deceased
division agreement, must agree to the terms and conditions of the agreement and the terms:
“they carry out the division” or “they divide” or “they agree to” or “they mutually agree” to
the division of the inheritance, with different awarded portions for each party. The mutual
consent terms occur in their contextual and grammatical structures as follows:
In text L1, the term zi-i-zu is present and meant that they carried out the division or they
agreed to the division. This is read together with the terms šeš ki šeš ugu-ni nì-na-me-en,
which meant that there would be no complaint against the other.
In L2, in line 20: ì-ba-e-ne translates as “they divided” and line 9 a-la be-le, which is the
inheritance share of X. In line 17 reverse: a-la hi-iš is the inheritance share of X. All
this shows in context (with other essential elements) that the beneficiaries of the estate
were contractual parties to a family deceased division agreement and that they consented
to the agreement.
In L3, see lines 5-6: mi-it-ha-ri-iš i-zu-uz4-zu of which the translation means: that they
agreed to the division and divided the estate equally.
In L4, see line 43 ur-sè-ga-bi [ì-ba-e]-ne which is translates as: they [have divided] into
219
equal parts. Also lines 13, 22, 30 and 40:
a-la: inheritance share of X (before each
brother’s awarded share and line 43 ur-sè-ga-bi [ì-ba-e]-ne - they have divided into
equal parts. All the parties in the context of the text show a mutual consent by the
contractual parties for the conclusion of a family deceased division agreement.
In the text see L5 TS 6 (BM 33159) ( line 14 reverse) the term é-a-ni ba-bé-e-eš translates
as “they agreed to the division of the houses”. Read together with TS 6 (BM 33159) (lines
4, 8 & 13) a-la of X translates as the inheritance share of X.
In L6 the terms ba and i-zu-zu in line 47, a-la é-da-da-a-ni ì-ba-a-ne translate as “they
shared paternal succession” read together with line 46, i-na mi-it-gu-ur-ti-šu-nu is-qá-am
i-/du-ú-ma and translates as: “by mutual agreement in equal parts, they have agreed to the
division”.
In L7, in lines 3, 6, 19 and 13, the term a-la translates as: “an inheritance share”, and
read together with lines 15-18: ú-sà-ni-qú-ú-ma é-ad-da*a-ni ma-la ma-ṣú-ú i-na mi-itgur-ti-šu-nu i*-zu*-zu*, which translates as: “after they had established the respective
shares of the ‘house of their father’, by mutual agreement in equal parts they divided the
‘house of their father’, ‘as much as there is’”.
his indicates a mutual consent by the
contractual parties as family members and beneficiaries of their father’s estate.
Text L8, lines 23-35 translates as: the “branch of channel, which exists, is not put in
division: they will be supplied there with equality”. “By mutual agreement, they carried
out the division by casting of lots”. In lines 4, 8, 10, 11, 19, 21 reverse and line 24
references are made to an inheritance share, and also to the position of that share on the
property described, indicating a consensual agreement by contractual parties, partaking in
a family deceased division agreement.
In the text of L9 the following reflects the context of a mutual agreement, namely: line 20:
a-la, which is the inheritance share of; lines 21-22: ša i-na mi-it-gur-ti-šu- nu it-ti a - išu i-zu-zu, which translates as “which he divided with his brothers in mutual agreement”;
line 23: a-la ša i-zu-zu la -i-in-nu-u2-ma, which translates as “the inheritance which they
divided they shall not alter”.
220
In L10 a consensual agreement is evident from the following lines, namely: in TS 5 (BM
33180), lines 23-24: é kiri6 nì-ga ù giššu-kár a-na gál-la ì-ba-e-ne giššub-ba ì-šub-bu-ne,
which translate as “they divided house, orchard, movable property and furniture as much
as there was, and by casting of lots”.
his was mentioned twice together with each
brother’s awarded divided assets. See TS 5 (BM 33180), line 9: [ a-l]a a-ba-a šeš bàn-da
“(such is) the inheritance share of Abaya, the younger brother”. See lines 21-22: a-la
dingir-šu-ellat-sú šeš-gal ù da-diri-ni5-šè “ such is the share of Ilšu-ellassu, the older
I
brother, like his brother”.
7.2.5.6 Raison d’êtr˹
In the Larsa texts, an exchange was predominantly utilised as a mechanism for the division of
the communally estate assets. To a lesser extent “bringing in” or a sale was used as a
mechanism for a division.
These mechanisms constituted the discontinuation of co-
ownership, and the change to sole-ownership regarding certain assets or portions of assets.
The texts wherein an exchange or a variation thereof occurred are thus:
In texts L1 and L3 an exchange occurred, in L2 an exchange occurred with a quid pro quo
equal division and text L4 consisted of an exchange with a “bringing in” (sale).
In text L5, an exchange by means of a casting of lots occurred, although the awarded
assets of each contractual party did not constitute an equal division.
In L6, the text consists of an exchange together with the mechanism of a “bringing in”.
In text L7, an exchange was used, although no exact proportions of divided shares were
instituted. In this text, it seems that the whole of the estate was divided, and it seems that
only certain properties were mentioned in the text. Caution must be exercised, however,
not to conclude that no quid pro quo division occurred, regarding all of the paternal estate
assets.
The text of L8, constituted an exchange and a casting of lots whereby 4 ½ iku 30 sar of
field was equally divided. Furthermore, the contractual parties agreed that a branch of a
channel did not form part of the division, which possibly meant that co-ownership
regarding that asset was retained, and the rest of the agreed portion, that is, 4 ½ iku 30
221
sar of field was awarded to the different groups in equal parts, by the casting of lots.
In text L9, an exchange took place, and one brother’s awarded divided portion was
reflected in the recording.
In L10 an exchange, with no “bringing in”, was agreed upon, although it is the only text in
Larsa where the parties agreed to a preference portion. To manage this, the exchange and
preference portion were divided by a casting of lots.
7.2.5.7 Summary
There are specific terms or words in the texts that reflect essential elements, and also so that
in some instances, conclusions can be drawn from the context of the texts. In all ten of the
division agreements of Larsa, the essential elements are present and thus we could reach the
conclusion, that the agreements were family division agreements of family members’
deceased estates. With a number of the elements, such as the family connection and family
relationship, some interpretational problems occurred; however, in context there was a family
connection present in all ten of the family deceased division agreements.
See table (infra) regarding a synoptic comparison of the different essential elements of Old
Babylonian Larsa.
Table 8 Outline of essential elements of Larsa division agreements
LARSA
Division agreement of a deceased family member’s estate
Oral division agreement reflected in recording on tablet
Essential elements:
Basic require ents “to be a house”
“building aterials” for a house e.g. walls, roof, windows, door
Brothers and sisters.
Family
connection
Father’s estate, one text mother or father’s estate; and in one other text uncle.
Deceased
estate owner
Estate assets Whole of the estate is divided:
many valuable assets,
variety of assets.
zi-i-zu (Akkadian) and ì-ba-e-ne (Sumerian).
Mutual
consent
Mechanisms: exchanges and donations; lesser extent: “bringing in”.
Raison
Supported by: casting of lots and equal division of the estate.
d’être
222
Family connection: The ten such agreements were each an agreement between family
members. In most of the Larsa texts, the brothers were contractual parties; only in a few texts
other family members, of whom the majority were sisters, were included as contractual parties
of the particular agreement/contract.
Deceased estate owner: In eight of the ten texts, the deceased father’s estate was divided. One
text was the mother or father’s estate, and the other text, the uncle was the deceased owner of
the estate.
Estate assets: In Larsa, it seems that in the majority of the texts, either the whole of the estate
was divided, or there were many valuable assets, which included a variety of assets such as a
house, a garden and furniture.
Mutual consent: The mutual consent terms occurred in their contextual and grammatical
structure as two main terms, namely zi-i-zu and ì-ba-e-ne.
Raison d’êtr˹: In the Larsa texts exchanges and donations, predominantly, and to a lesser
extent “bringing in” were utilised as mechanisms for the division of communally estate assets,
supported in a few texts by a casting of lots and in some texts by the equal division of the
estate.
Thus, all the essential elements of a family deceased division agreement are present in the
Larsa texts as shown in Part C under texts L1-L10.
7.2.6
Natural elements
Natural consequences are derived from a division agreement through practice and law. In the
Larsa texts, these natural consequences were: Nat 2, “bringing in”; Nat 3, division by lots
giš
šub-ba/išqu; Nat 5, “much as there is”; Nat 6, no claim; Nat 7, an oath; Nat 8, a preference
clause; Nat 9, equal shares mi-it-ha-ri-iš; and Nat 12, witnesses.286
There were two practices, which are not discussed separately. One was a natural element with
Leeman’s 19 4 interpretation of the preference rule, and the other was a reference made in
286
See table 21 in the conclusions-section of this chapter to understand the logical flow of the natural
elements of Larsa.
223
one text relating to a royal edict.
Regarding the preference rule, Leemans (1954:37) opines that in Larsa the preferential share
of the son applied when he “as a rule” inherited twice the value of the estate: this instance
correlates with the text reflected in L4.287 He considers the slaves which one of the brothers,
ṣamaš-m gir, “inherited” as the “double” share. It does not seem to be a logical assumption as
the other assets awarded to him, did not constitute a “double share”. However, to substantiate
his claim, Leemans argues that clause 42-4 “does not invalidate this assumption”. Clause
42-43 refers to the agreement between the brothers and states that “estate of their father’s
house as much is extant; they [have divided in to equal parts]”. His arguments are that they
inherited a “division in equal parts mit ariš i-zuzu ” in equal lots. Furthermore, that “
his
apparent contradiction may be met by the suggestion that the double portion of the eldest son
actually consisted of two equal lots.” The researcher does not agree. In this regard, see, the
table outline of the division of the awarded assets below.
Table 9 Outline of division of assets of Lipit-Ištar, Apil-ilišu, pīl-Sîn and Ša aš- āgir
Lipit-Ištar
22/3
(?)
Apil-ilišu
pīl-Sîn
Ša aš- āgir
with 31/2 sar with house 21/2 sar with house [… sar with house
sar
house built on it,
built on it,
built on it,
built on it,
36 sar of garden, 10
36 sar of garden
36 sar of garden, 10
[…sar of] garden,
sar [of fallow],
10 sar of fallow at sar of fallow at
x sar open site,
the town…,
½ iku 30 sar of
1
Mulū
l- […sar of fallow at
l-]Mulū ˹ ,
/2 iku 30 sar of ½ iku 30 sar of […iku
garden at the town…, garden at l-Uru…,
garden at l-Rabiu,
1
1 slavegirl ṣumman- [1
slavegirl
Ištar- 1 slavegirl Sarbitum,
l -Ištar,
damqat,
1 slave Ipku-[Sîn(?),
1 slave
b-… ,
1 slave Anida (?
x
sar]
of
garden l-Rabiu,
slavegirl
Nanâ-
gamilat,
1 slavegirl
1 slavegirl Bil um [1] slavegirl A tum
Taraiatum,
(?),
(?),
1 slave Warad-Kabta, [1]
slavegirl
U…-
1 slave Abium-kīma- Ištar,
ili,
1 slavegirl Ku..tum,
287
See L4 (Larsa), Part C regarding the text transcription and translation with table outline of the different
elements in the text.
224
Lipit-Ištar
Apil-ilišu
pīl-Sîn
Ša aš- āgir
1 slave Ili-unn ni,
1 slave Ili-muš zibi,
1 slave ṣamaš- zir,
1 slave Iškur- egal.
and ½ mina of silver
and 5/6 mina of silver
as compensation for
as compensation for
the house.
the house.
ṣamaš-m gir’s share is shown in lines 1-13, but due to the damaged tablet in these lines, it is
unsure which assets were awarded to him in terms of value. Furthermore, there is no
indication in the text that ṣamaš-m gir was the eldest son. It seems this is Leemans’ own
assumption; he provided no validation thereof. The awarded divided assets consisted of
houses, gardens, fallow fields and slaves. Three brothers Lipit-Ištar,
m gir received more slaves in relation to one brother,
pīl-Sîn and ṣamaš-
pil-ilišu ṣamaš-m gir received six
more slaves (total eight), pīl-Sîn two more slaves (total four) and Lipit-Ištar two more slaves
(total four). This unequal division was only in regards to the slaves. There was a “bringing
in” clause of a certain amount of silver, as compensation for the houses, where the brothers
pīl-Sîn and Lipit-Ištar, received less in terms of the amount of the house in the divided
awarded parts; and were compensated in accordance to the unequal division of the awarded
parts of the house. Leemans (1954) omitted to reference thereto.
Another natural element appears in text L3.288 This is a division agreement of a possible
paternal or maternal estate between the brothers Sîn-imgur and Sasiya regarding the awarded
divided assets of both brothers. The text was recorded in the Rīm-Sîn-period in his 34th year
of his reign. A unique contractual inclusion is that of a reference which was made to a royal
edict, probably issued by King Rīm-Sîn. It is transcribed as [ki]ri[I6 ...] [m]a-la [a-na ṣi-imd]a*-at* and translated as “the garden of PN as far as one made some leave according to the
royal Edict”. Here it is evident again, the same as in the other agreements, that only the
necessary information required to remind the contractual parties of an agreement, was
included as terms in a written form. Again one can only speculate as to why and to what
extent this garden was related to an unknown royal edict.
288
See L3 (Larsa), Part C regarding the text transcription and translation with table outline of the different
elements in the text.
225
7.2.6.1 Bringing-in (Nat 2)289
For the purposes of equalising the value of the portions of estate assets, divided and awarded
to each of the contractual parties, a typical sale could take place where the parties concur by
agreement to “bring-in” or “buy” awarded assets to compensate any of the contractual parties
who received fewer assets or portions in value.
In the texts L1, L2, L3, L5, L7, L9 and L10 there is no “bringing in” clause.
In the following texts, the “bringing in” clause is reflected: in each of these agreements, there
are unique circumstances.
The different agreements with such unique terms and their
contexts are thus:
In text L4 the following “bringing in” of assets took place: 5/6 mina of silver as
compensation for the house regarding the awarded divided share of the 2 1/2 sar house of
X1.290 In another provision, 1/2 mina of silver was offered as compensation for the house,
regarding the awarded divided share of the 22/3 (?) sar house of X2.291 The parties
concluded that they had divided the assets into equal parts.292
In L6, a slave named Luštamar-ṣamaš, was brought in as compensation (ina têlîtīšu); as
additionally received.293
In L8, the “branch of a channel”, which forms part of the paternal estate, was not included
in the division: it would be replaced by an equal division.294 This is not technically a
“bringing in”. It seems that in order for the division to occur equally, this branch of a
channel was excluded from the division. Thus, it appears that, at least for a while, until
another agreement could be reached, the contractual parties’ co-ownership regarding the
channel was maintained. However, at a later stage they might have finally reached a
consensus on whether to divide the channel into different portions.
289
Term búr.
Line 21: ù 5/6 ma-na kù-babbar ta-ap-pi-la-at bi-tim.
291
Line 39 ú ½ ma-na kù-babbar ta-[ap-pi-la-at bi-tim].
292
Line 43: [ ]-x ur-sè-ga-bi [ì-ba-e]-ne.
293
Lines 14-18: 10 gur še 2 gín kù-babbar 2 (ban) 1/3 ba-an zíz 1 sag-ìr lu-uš-ta-mar-dutu mu-ni-e oša
i-na ti-li-ti-šu a-na e-li-a-ti-šu il-qú-ú ha-la i-ri-ba-am-dEN-ZU.
294
Reverse, lines 21-23: pa5a-ta-ap+ i-ba-aš-šu-ú ana ha-la ú-ul o-ša-ki-in–o mi-it-ha-ri-iš o-i-ša-at-tu –o.
290
226
7.2.6.2 Division by lots (Nat 3)295
The division of an estate by lots is a practical means to constitute an equal and fair
distribution of the assets.
In texts L1-L4, L7 and L9, no division by lots took place. In the following texts, this practical
manner is used, thus:
In L5, the parties agreed to a casting of lots using the Sumerian variant of giššub-ba ìšub-bu-ne-eš.
In L6 and L8, the contractual parties mutually agreed to an equal division: it was executed
by the casting of lots using the Akkadian variant išqu.296
In L10, the contractual parties concurred with the division of the house, orchard, movable
property and furniture as much as there was, and by the casting of lots. This was
mentioned twice together with each brother’s awarded divided assets.297
7.2.6.3 Much as there is (Nat 5)298
The “much as there is” clause refers to an estate that was totally divided. Texts L1, L3, L5,
L6, L8 and L9 do not mention a “much as there is” clause. In the following four of the ten
texts this clause occurs, namely:
In text L2, movable ground, an orchard, furniture, goods and liquidities as much as there
was, which belonged to their father, they divided.299
In L4 assets such as a house, a garden, female and male slaves, and the estate of their
father’s house are mentioned together with the clause “as much as is extant”.300
Terms: giššub-ba or išqu.
In L6, line 46 - i-na mi-it-gu-ur-ti-šu-nu is-qá-am i-/du-ú-ma; and lots: išqu. L8, line 24-25: i-na mi-itgu-ur-ti-šu-nu o-i-na is-qí-im i-zu-ú-zu.
297
TS 5 (BM 33180), line 23-24: é kiri6 nì-ga ù giššu-kár a-na gál-la ì-ba-e-ne giššub-ba ì-šub-bu-ne.
Line 11 - TS 5 (BM 33180): ì-ba-e-ne giššub-ba ì-su[b*-b]u*-ne.
298
Terms gamāru, ištu, gál-àm.
299
Lines 18-20: o- é kiri6 giškár nì-šu-gal* nì*-gá*-gál-la ša ad-da-ne – ì-ba-e-ne.
300
Lines 41-42: é giškiri6 sag-gemé sag-arad [nì]-ga-ra é-da-da-[e-ne] a-na gál-àm.
295
296
227
In the text L7, the agreement provides that, after they had established the respective shares
of the “house of their father”, by mutual agreement they divided the “house of their
father” “as much as there is”.301
Text L10 mentions that they divided the house, an orchard, goods and furniture as much
as there was, together with a twice-mentioned casting of lots clause.302
7.2.6.4 No claim (Nat 6)303
The no claim clause is one of the normal clauses in all the division agreements. In Larsa, this
clause was utilised with variants signifying almost the same, but with the exception of one
text, namely L3 that does not reflect this clause at all. The clauses with their variants
(transcriptions referred to in footnotes) are thus:
In L1, the parties state that there would be no complaint against the other.304
In L2, Charpin (1980:212) refers to a “clause of non-claim 18a only ”; however, he does
not include it in his transcription and translation.
In L4, the parties provide that the one and the other will not change it.305
L5 states that brother against brother will not lodge a claim against another.306
L6 also states that brother against brother will not raise a word and come back.307
L7 also states that no future claims will be made in a non-contested clause.308
In L8, the parties agree that they will not claim against each other.309
In L9, the parties agree that the inheritance, which they divided, they shall not alter.310
In L10, the parties state that in the future, the one brother will not make a complaint
against his brother.311
301
wa-ar-ki ha-la é-ad-a*ni-šu-nu ú-sà-ni-qú-ú-ma é-ad-da*a-ni ma-la ma-ṣú-ú i-na mi-it-gur-ti-šu-nu
i*-zu*-zu*.
302
TS 5 (BM 33180), lines 10-11 - é kiri6 giššu-kár a-na gál-la ì-ba-e-ne giššub-ba ì-su[b*-b]u*-ne.
303
Terms : inim nu-um-gá-gá-a or the variant šeš-a-ne-ne ba-ani-ib-ge4-ge4-ne.
304
Line 19 ugu-ni nì-na-me-en.
305
Line 44: [šeš-še]š-ra nu-ub-[ta-ba]l-e.
306
TS 6 (BM 33159), line 16: u4-kúr-šè šeš šeš-ra inim-ma nu-gá-gá.
307
Line 48: u4-kúr-šè u4-nu-me-a-ka šeš šeš-ra inim nu-gá-gá.
308
Line 18 bis u4-kúr-šè nu-mu-un-da-bal- eš.
309
Line 26 : nu-mu-un-da-bal-e.
310
Line 23: a-la ša i-zu-zu la –i-in-nu-u2-ma.
311
u4-kúr-šè dingir-šu-ellat-sú-k[e4] a-ba-a-a-ra šeš-a-ni inim nu-um-gá-gá.
228
7.2.6.5 Oath (Nat 7)312
In Larsa, the normal oath clause occurred and was reflected under the incidental elements
heading. The other set of oaths, which include ceremonial rituals, did not occur in Larsa, but
only in Sippar in three texts, namely S20, S25 and S26.
7.2.6.6 Preference portion (Nat 8)313
From texts L1-L9, no reference is made to a preference portion. Only text L10 TS 5 (BM
33180), in line 20 states: one gišbanšur zà-gu-la - a table zaggula (first-born share).
7.2.6.7 Equal shares (Nat 9)314
In six of the ten texts this clause occurs, namely:
In L3: they divide in equal parts.315
In L4, line 43: they [have divided] into equal parts.316
In L6: by mutual agreement in equal parts, they have agreed to the division.317
In L7 after they had established the respective shares of the “house of their father”, by
mutual agreement in equal parts they divided the “house of their father” and “as much as
there is”.318
In L8: “the branch of a channel, which forms part of the paternal estate, is not included in
the division: it will be replaced by an equal division. By mutual agreement in equal parts,
they carried out the division by casting lots”. (Larsa išqu).319
312
Term pàd.
Term gisbanšur.
314
Term mit āriš.
315
Lines 5-6: mi-it-ha-ri-iš i-zu-uz4-zu.
316
Line 43: [ ]-x ur-sè-ga-bi [ì-ba-e]-ne.
317
Line 46: i-na mi-it-gu-ur-ti-šu-nu is-qá-am i-/du-ú-ma.
318
Lines 15-18: ú-sà-ni-qú-ú-ma é-ad-da*a-ni ma-la ma-ṣú-ú i-na mi-it-gur-ti-šu-nu i*-zu*-zu*.
319
Lines 21-24: pa5a-ta-ap+ i-ba-aš-šu-ú ana a-la ú-ul ša-ki-in mi-it-ha-ri-iš i-ša-at-tu i-na mi-it-gu-ur-tišu-nu i-na is-qí-im i-zu-ú-zu.
313
229
In L9, lines 20-24: the inheritance of Lipit-Ea, which he divided with his brothers in
mutual agreement (in equal parts).320
7.2.6.8 Witnesses (N12)321
In all ten of the Larsa texts, witnesses were recorded as being present, by utilising the term
“igi”.
7.2.6.9 Summary
All the texts, except for L3, include the following natural elements, namely: no claim (Nat 6),
an oath (Nat 7) and witnesses (Nat 12). Regarding the other texts:
three texts refer to “bringing in” (Nat 2);
four texts to a division by lots (Nat 3);
while the majority of six texts refer to equal shares (Nat 9).
and four texts to “as much as there is” (Nat 5);
Only one text refers to the preference share.
See table outline (infra) regarding a synoptic comparison of the different natural elements of
Old Babylonian Larsa.
Reverse, lines 21-23: pa 5a-ta-ap+ i-ba-aš-šu-ú ana ha-la ú-ul ša-ki-in–o mi-it-ha-ri-iš i-ša-at-tu - and
Line 25-26: i-na mi-it-gu-ur-ti-šu-nu i-na is-qí-im i-zu-ú-zu.
321
Term igi or ma ar or in one Sippar text: pan.
320
230
Table 10 Outline of the natural elements of Larsa division agreements
LARSA
Division agreement of a deceased family member’s estate
Oral division agreement reflected in recording on tablet
Natural elements: 10 texts
Legal tradition practices
”type of structure of house” e.g. double-storey house, patio
Nat 1
None.
Adoption/support
Nat 2
Three texts: L4, L6, L8 (30%). (búr-term)
Bringing in
Nat 3
Four texts (40%):
Division by lots
L5: giššub-ba ì-šub-bu-ne-eš,
L6 & L8: Akkadian variant išqu,
L10: twice mentioned with each brother’s awarded divided assets.
Nat 4
None.
Heart is satisfied
Nat 5
Four texts: L2, L4, L7, L10 (40%). Terms: nì-gá-gál-la and gál-àm.
as much as there
is/completely
divided
Nat 6
Nine texts except for L3 (90%). Terms used: inim nu-um-gá-gá-a (shall
No claim
not raise any claim); Another variant: šeš-a-ne-ne ba-ani-ib-ge4-ge4-ne
(his brothers shall not raise claims against him).
Nat 7
Oath in temple: None.
Oath in
Oath in all 10 texts (100%).
temple/oath
Nat 8
One text: L10 (10%). gisbanšur and/or zaggulá.
Preference
portion
Nat 9
Six texts: L3, L4, L6, L7, L8, L9 (60%). Mit āriš-term.
Shares: equal
clause
Nat 10
None.
Trust (trustee)
Nat 11
None.
Usufruct
Nat 12
All ten texts (100%).
Witnesses
7.2.7
Incidental elements
7.2.7.1 Introduction
In this category, we find the uniqueness of different scribal practices reflected in the written
division agreement; however, parties could choose to include these practices in the contract
231
and they did not form part of the basic requirements to qualify a contract as a division
agreement.322
Under the written formalities of division agreements, the following aspects were investigated:
names of contractual parties, birth order, descriptions of assets (thorough description, value),
special legal terms, sanction clause (type), oath clause (king/god) and witnesses (names,
rank/family standing).
Regarding the qualities of division texts, the following were emphasised, namely: language,
location of text, tablet’s condition, copies, date formulas, seal impressions and the rhythmic
sequence/special style.
7.2.7.2 Written formalities of division agreements
(i) Names of contractual parties, rank
In the written agreement certain aspects were normally present, that is, the names of the
parties and their relationship to each other, and their standing within their family, for example
son or daughter of X. The names could usually give some insight as to whether it was a
Semitic, Sumerian or Akkadian name. Outlines of the names in the Larsa texts are as follows:
In L1 the names of the contractual parties were mentioned, namely Migrat-dSîn, Ubard
Sîn, and Ì-lí-sukkal.
In L2, the names of the brothers B lessunu and išš tum were inscribed.
In L3, the brothers named Sasiya and Sîn-imgur were mentioned.
In L4, the names of the brothers, but not those of the estate owner, were mentioned,
namely: Lipit-Ištar, pīl-Sîn, Apil-ilišu and ṣamaš-m gir.
In L5, the brothers were called Buzazum, Iâ and Ludlul-Sîn and Abî- bum in an
322
See table 21 in the conclusions-section of this chapter to understand the logical flow of the incidental
elements of Larsa.
232
unknown paternal estate.
In L6, the brothers were named Idin-ṣamaš, Ir bam-Sîn, Ibbi-Ilabrat, Ilî-n ir and M rIr itim.
L7 is a division agreement of the paternal estate between the siblings, named Minani,
Ubar-Sîn and Ilî-sukkallum regarding the awarded divided assets of all three children.
he father’s name was not mentioned.
L8 is a division agreement of the deceased Ilî-sukkallum and his children called Awîl-ilî
and illi-Eštar, Migrat-Sîn (child of Minanum); and Ubar-S n’s sons Idin-ṣamaš and his
brothers.
In L9, there was a family connection, although the term ahhu could also mean nephews or
cousins
(Andersson 2008:15 fn. 44).
Thus, the beneficiary was either a
brother/cousin/nephew. However, they were unnamed and the brother/cousin/nephew, as
well as the paternal estate owner is unknown.323
In L10 two brothers were named; Ilšu-ellassu, the eldest brother and Abaya, the younger
brother.
(ii) Birth order of brothers
Sometimes in the texts the ranking order in the family was given. This normally occurs in
texts for a reason, such as for instance, the termed gišbanšur zaggulá clause, where the eldest
son received a preference portion of the deceased parent’s estate.
In texts L1-L9, no preference portion was mentioned; only in text L10, reference was made to
birth order, as well as to a gišbanšur zaggulá clause (preference share clause).
(iii) Description of assets: thorough description, value
323
Lines 20- 23: the inheritance of Lipit-Ea, which he divided with his brothers in mutual agreement. ala
Li-pi2-it-E2-a ša i-na mi-it-gur-ti-šu- nu it-ti a - i-šu i-zu-zu a-la ša i-zu-zu la -i-in-nu-ú-ma).
233
This include aspects of the description of the property, which include the following:
description of the type of unit, extent of the unit, boundaries of the unit, description of the
beacons marking the unit, description of the position on, or in relation to the unit and any
servitude feature present. Examples in the Larsa texts are as follows:
In L1, the description and extent of the units, as well as the position on, or in relation to
the units were stated as, for example: [X] iku of orchard beside Migrat-Sîn; a slave named
Warad-ilîya, 1 sar of built house beside the inheritance share of Migrat-Sîn; 2 doors of
house and attic, 1 table, and a slave named Gula-ummî.
In L2 references to the description, extent and boundaries of the units were, for example:
5/6 sar 20 še of built house; 1/2 sar (with) a door in veins of palm (and) a door out of
wooden of palm tree (wood); (located) beside the ground of Ilum-n ir; and 30 sar of
orchard of palm trees (with) 13 1/3 sar of open area, at the side of the orchard of išš tum.
In L3, the description of the unit was stated as only a garden, the garden of Ipqušu.
In L4 the description and extent of the units, as well as the position on, or in relation to the
units, were noted as, for example: [… sar with house built on it, confining to the house of]
Lu-…, […sar of] garden, […sar of fallow at
l-Mulū ˹ , 1 slavegirl Nan -gamilat by
name, 21/2 sar with house built on it, confining to the house of Nindar-taii r, 6 sar of
garden, 10 sar of fallow land at l-Mulū, and 1/2 iku 30 sar of garden at l-Rabiu.
In L5, the description and extent of the unit, as well as the position on, or in relation to the
unit, was noted as, for example: 1/3 sar 3 1/3 gín of house in ruins beside the house of LuNin-Urima and beside Buzazum.
In L6 the description and extent of the units, as well as the position on, or in relation to the
units were stated as, for example: 1 iku of field next to the field of ṣulgire-padda, beside
ṣamšiya;
še of built house, beside the ground of Irîbam-Sîn; 1 door of attic out of
wooden of palm tree (wood); 10 barley gur; 2 silver shekels.
In L7 the description and extent of the units, as well as the position on, or in relation to the
234
units, were stated as, for example: 1 1/3 sar of built house, beside brother Ubar-Sîn, having
for the short side the ground of Sîn-asûm and the street; 5/6 sar of built house, beside the
store of […] and beside the share of Minani child of Migrat-Sîn, having for side runs (on
the one hand) the street and (on the other hand) the ground of Sîn-asûm.
In L8 the description, extent and boundaries of the units, as well as the position on, or in
relation to the units, were noted as, for example: 4 1/2 iku 30 sar of field, alongside IdinS n son of ṣahuza; 4 1/2 iku 30 sar of field in the territory Gula, beside the share of
Minanum son of Migrat-Sîn; beside the inheritance share of Idin-ṣamaš and his brothers,
son of Ubar-Sîn.
In L9 the description, extent and boundaries in relation to the units were provided, for
example: lines 15-17: 3600 m2 garlic garden in Larsa; 3600 m2 garden, next to (the
property of) Eridu-liwwir in Badtibira; 2628 m2 garden in the township of Idi-ilumma
next to (the property of) Eridu-liwwir in Badtibira). Some of the gardens and plots only
refer to the extent of the unit, though.
In L10 the description and extent of the units, as well as the description of the beacons
marking the units, and the position on the units were noted as, for example TS 5a (BM
33180a) lines 1-5: ½ iku of planted orchard of trees, beside the orchard of Ubarrum; 18
gín of developed site (with) carried it principal part, beside the ground pertaining to
Sâsiya; (emoluments) of 3½ days per annum in the temple of Gula; and lines 7-8: a slavewoman Waqartum by name; and a table of luxury.
(iv) Special legal terms
In L1, the following special legal terms are present:
Line 5: a-la [mi-ig-ra-at-dENZ]U* - is the inheritance share of Mig-rat-Sîn
Line 11 : a-la u-bar- dEN-ZU - is the inheritance share of Urban-Sîn.
Line 18: a-la ì-lí-sukkal - is the inheritance share of dIlî-sukkallum.
Line 19: zi-i-zu šeš ki šeš ugu-ni nì-na-me-en - they carried out the division; that there
will be no complaint of the parties regarding the division against another.
235
In L2 special legal terms that are mentioned are:
Line 9: a-la be-le-sú-nu - is the inheritance share of Bêlessunu.
Line 17R: a-la hi-iš-ša-tum - is the inheritance share of išš tum.
Lines 18-20: é kiri6 giškár nì-šu-gal* nì*-gá*-gál-la ša ad-da-ne ì-ba-e-ne - movable
ground, orchard, furniture, goods and liquidities as much as there was in the estate, who
belonged to their father, they divided.
Line 20: ì-ba-e-ne - they divided.
In L3, the following special term is present:
Lines 5-6: mi-it-ha-ri-iš i-zu-uz4-zu - they agreed to the division and divide the estate
equally.
In L4 the special legal terms applicable are:
Lines 13, 22, 30 and 40: a-la - inheritance share of (before each brother awarded share).
Line 21: ù 5/6 ma-na kù-babbar ta-ap-pi-la-at bi-tim - and 5/6
mina of silver as
compensation for the house.
Line 39: ú
½
ma-na kù-babbar ta-[ap-pi-la-at bi-tim] - and ½ mina of silver as
com[pensation for the house].
Lines 41-42: é
giš
kiri6 sag-gemé sag-arad [nì]-ga-ra é-da-da-[e-ne] a-na gál-àm -
house, garden, female and male slaves, estate of their father’s house as much as is extant.
Line 43: ur-sè-ga-bi [ì-ba-e]-ne - they [have divided the estate] into equal parts.
Line 44: [šeš-še]š-ra nu-ub-[ta-ba]l-e - that the one brother and the other brother will not
change it.
In L5 the special legal terms present are:
TS 6 (BM 33159) lines 4, 8 and 13 with each inheritance share: a-la – inheritance share
of X.
TS 6 (BM 33159) line 14R: é-a-ni ba-bé-e-eš – they agree to the division of the houses.
TS 6 (BM 33159) line 15: giššub-ba ì-šub-bu-ne-eš – casting of lots.
TS 6 (BM 33159) line 16: u4-kúr-šè šeš šeš-ra inim-ma nu-gá-gá – brother against
brother will not lodge a claim against another.
In L6, the following special legal terms occur in the text:
236
Lines 9, 18, 25, 33, 39 and 45: a-la - inheritance share of X.
Line 47: a-la é-da-da-a-ni ì-ba-a-ne - they shared paternal succession.
Line 46: i-na mi-it-gu-ur-ti-šu-nu is-qá-am i-/du-ú-ma - by mutual agreement, they have
agreed to the division.
Line 48: u4-kúr-šè u4-nu-me-a-ka
šeš šeš-ra inim nu-gá-gá - brother against brother
will not raise a word and come back.
In L7 the special term is:
Lines: 19-21: mu dnanna dutu damar-utu ù ha-am-mu-ra-pí lugal in-pàd- eš – sworn
by Nanna, ṣamaš and King ammu-r pi .
In L8, the following special legal terms are present:
Lines 4, 8, 10, 11, 19, 21R and 24 mentioned this term to refer to the inheritance share and
also with reference to the position of the share of property described: a-la
Lines 23-25: pa5a-ta-ap+ i-ba-aš-šu-ú ana a-la ú-ul o-ša-ki-in–mi-it-ha-ri-iš o-i-ša-at-tu –o
i-na mi-it-gu-ur-ti-šu-nu o-i-na is-qí-im i-zu-ú-zu –o - the branch of a channel which forms
part of the paternal estate but is not included in the division: it will replaced by an equal
division. (co-ownership?) By mutual agreement, they carried out the division by casting
lots.
Line 26: nu-mu-un-da-bal-e - they will not claim against each other.
In L9 the special legal terms are:
Line 20: ala Li-pi2-it-E2-a - the inheritance share of Lipit-Ea.
Lines 21-22: ša i-na mi-it-gur-ti-šu- nu it-ti a - i-šu i-zu-zu - which he divided with his
brothers, in mutual agreement.
Line 23: a-la ša i-zu-zu la –i-in-nu-u2-ma - the inheritance which they divided, they shall
not alter.
In L10, TS 5 (BM 33180) the special legal terms are:
Line 9: [ a-l]a a-ba-a šeš bàn-da - (such is) the inheritance share of Abaya, the younger
brother.
Line 10: é kiri6
giš
šu-kár a-na gál-la - they divided the house, orchard, goods and
furniture as much as there was.
237
Line 11: ì-ba-e-ne giššub-ba ì-su[b*-b]u*-ne - by casting of lots.
Lines 21-22: a-la Idingir-šu-ellat-sú šeš-gal ù da-diri-ni5-šè - such is the share of Ilšuellassu, the older brother, like his brother.
Line 20: 1 gišbanšur zà-gu-la – preference share
Lines 23-24: é kiri6 nì-ga ù
giš
šu-kár a-na gál-la ì-ba-e-ne
giš
šub-ba ì-šub-bu-ne - they
divided house, orchard, movable property and furniture as much as there was, and by
casting of lots.
Lines 25-27: u4-kúr-šè Idingir-šu-ellat-sú-k[e4] Ia-ba-a-a-ra šeš-a-ni and inim nu-umgá-gá - in the future, Ilšu-ellassu will not make a complaint against his brother Abaya.
(v) Oath clause (king/god)
The following oath clauses appeared in all ten of the Larsa texts. In these texts the parties
swore by the king of the day, that is, Rīm-Sîn,
ammu-r pi or Samsu-iluna and in some
instances by the god/gods S n, ṣamaš, Nanna or Marduk. Each text was different, depending
on the king and gods named in it. It is unknown whether this choice was made by scribe,
and/or that of the contractual parties. In all the Larsa texts, except one, the contractual
parties’ agreed portions were all recorded in one text only. Therefore, if it were the choice of
the parties as to which king and/or gods to name, then that became the choice of all the
contractual parties.
324
325
326
327
328
329
330
L1, lines 19- 20: they have sworn by S n, ṣamaš and King Rīm-Sîn.324
L2, line 1 they have sworn by S n, ṣamaš and King Rīm-Sîn.325
L3, line 7: they sworn by S n, ṣamaš and the king.326
L4, lines 45-46: they have sworn by Nanna, ṣamaš and Rīm-Sîn, the king.327
In L5, TS 6 (BM 33159) line 17: they swore by the king.328
In L6, lines 49-51: they swore by Nanna, ṣamaš and ammu-r pi.329
In L7, lines 19- 1 sworn by Nanna, ṣamaš and King ammu-r pi.330
In L8, lines 27-28: sworn by King Samsu-iluna.331
mu dnanna dutu ù ri-im- dEN-ZU lugal-e in-pàd- eš.
mu dnanna dutu ù ri-im-dEN-ZU lugal-e in-pàd.
mu lugal-bi in-[pàd].
[mu dNan]na dUtu [ù Ri-i]m-dSìn lugal [in]-pà(?)-[dè] eš.
mu lugal-bi in-pàd.
nu-mu-un-da-bal-e mu dnanna dut[u dam]ar-utu ù ha-am-mu-ra-[pí lugal] in-pàd- eš.
mu dnanna dutu damar-utu ù ha-am-mu-ra-pí lugal in-pàd- eš.
238
In L9, line 24: they swore by the names of Nanna, ṣamaš, Marduk and Samsu-iluna.332
In L10, TS 5 (BM 33180), line 28: they have sworn by the king.333
(vi) Witnesses names, rank/family standing
The witnesses with their rank and standing were given thus:
L1 named the witnesses and their statuses son of X , and the scribe’s name and
profession (dub-sar) appear.
In L3 the name of the witness appears.
merchant (dam-kara) appear (the text was mostly damaged).
In L2, the names of witnesses and their statuses (son of X) are mentioned.
In L4 the name of the witness and his status (son of X), as well as profession as a
L5 indicated the name of the witness.
name and profession (dub-sar).
L6 provided the name of the witness, status of witness (son of X), as well as the scribe’s
L7 noted the names of witnesses and their statuses (son of X). Scribe’s name and
profession (dub-sar) is mentioned.
L8 likewise noted the names of witnesses and their statuses (son of X).
In L9, lines reverse 1-16 the names and family relationships are mentioned – son of X.
Professions are also mentioned: Ilšu-ibnīšu, the surveyor and Puzir-Nazi, the builder.334
L10 also provided the names of witnesses and their statuses (son of X) (Text badly
damaged). Scribe’s name and profession dub-sar) is mentioned.
7.2.7.3 Qualities of cuneiform division texts
(i) Language
L1, L2 and L9 were written in Akkadian and Sumerian – words such as a-la, dumu, and
mu sa-am-su-i-lu-na lugal-e in-pàd- eš.
mu dNanna(šeš-ki) dŠa aš(utu) dMarduk(amar-utu) u3 Sa-am-su-i-lu-na.
333
mu lugal-bi in-pà-dè-eš.
334
The mentioning of the surveyor and builder, leave the open question that they as witnesses could have
had some knowledge of measuring the structures of the fields, gardens, and houses, mentioned in the agreement.
Maybe if needed they could have testify to the portions allocations and measurements of the divided assets?
331
332
239
so forth.
L3, L4, L5, L4, L5, L6, L7, L8 and L10 were written in Sumerian.
(ii) Location
All the texts originated from Larsa.
(iii)
ablet’s condition
The conditions of the Larsa tablets are thus:
In L1, tablet TS 19a (BM 33286 + 33295) is not in a good condition, because parts of the
texts have been omitted. There is no printed copy on the shelf and the inscription on the
envelope is illegible. The second tablet is also not in a satisfactory condition. According to
Charpin (1980:213), regarding the seals there were no imprints found on the tablet or on
the envelope.
In L3 there were texts omitted due to a damaged tablet.
With L5 and L6, some texts were omitted.
In L8 again, some texts were omitted due to the bad condition of the tablets.
could not be established whose share it was.
In L2, the tablet was not in a satisfactory condition, because some texts were omitted.
In L4, some texts were omitted due to the bad condition of the tablets.
With L7, the tablet was not in a good condition, so texts were omitted in some places.
In L9 parts of the document were omitted, and line 3 was especially problematic as it
Text L10 had various parts of the text omitted due to damage.
(iv) Number of copies (agreements)
For all the texts, only one copy was created and it seems that all the contractual parties’
agreed portions were recorded in this particular text.
240
(v) Date Formula
The date formula in the Larsa texts is thus:
L1 The month Simanu (See Cohen 1993)
Line 30-31: in the year he dug the canal of Euphrates.
“Year Rīm-S n built the great city wall of Iškun-ṣamaš on the bank of the Euphrates”.335
Sigrist (1990:41-42) translated the year name as “year he built the wall of Iškun-ṣamaš
located on the bank of the Euphrates”. Rīm-Sîn 10th regal year).
L2 Line 35: in the year in which Kisurra was seized (20th regal year of Rîm-Sîn)336
See also Sigrist (1990:48-49 “year he annexed Kisurra to Larsa and with the help of the
mighty weapon given to him by Enlil destroyed Durum”.
L3 Month of Kin-Inanna u4 […].337 The festival was held in honor of the goddess Inanna.
Cohen (1993:105) opines that the main cultic activies were held in the temple where
offerings of grain and cattle were made to the goddess Inanna. Lines 15-17: year 5 he
seized Isin (year 34).338 Sigrist (1988:59-60 refers to the king’s 0th reign year and
translated the year name as follows “year the true shepherd Rīm-Sîn with the help of the
mighty weapon of An, Enlil and Enki had Isin, the royal place, and its inhabitants whose
life he spared taken, and he made great his fame”.
In L4, the date is not legible due to the damaged tablets.
L5 Month of Kin-Inanna.339 TS 6 (BM 33159) Lines 26-27: In the year in which he built
the temple of Enki in Ur and the temple of Ninenimma. Rīm-Sîn II regal year 8: year in
which Rīm-Sîn) built the temple of Enki in Ur and the temple of Ninenimma in
335
(Old Babylonian Date Formulae) http://cdli.ucla.edu/tools/yearnames/HTML/T10K10.htm Cited 2
February 2012.
336
(Old Babylonian Date Formulae) http://cdli.ucla.edu/tools/yearnames/HTML/T10K10.htm Cited 2
February 2012.
337
See Cohen (1993:104-106, 227) regarding his detailed discussion of Kin-Inanna.
338
(Old Babylonian Date Formulae) http://cdli.ucla.edu/tools/yearnames/HTML/T10K10.htm Cited 2
February 2012
339
See Cohen (1993:104-106, 227) regarding his discussion of Kin-Inanna.
241
Enimmar.340 See also Sigrist (1991:40-41) “year Rīm-Sîn the king had built the temple of
Enki in Ur and the temple of Ninenimma in Enimmar”.
L6 In the month of the process of grain, on the 4th day. še-gur10-ku5 is unknown in the
calendar, however see the discussion of Cohen (1993:123) regarding the terms še and ku5
and possible meaning as “to processs grain”. At the end of tablet mu + é-me-te-ur-saggá mu-un-gibil-lá u6!-nir ki-tuš-mah
za-ba4-ba4 dinanna “in the year in which he
d
restored (the temple) Emeteursag and built the ziggurat, the magnificent dwelling place of
Zababa and Inanna”. It was the 36th regal year of king ammu-r pi from Babylon.341
L7 The following clause is present: mu ha-am-mu-ra-pí lugal bád!-gal-kar-ra-dutu muun-dù-a. It translates as: in the year in which king
ammu-r pi built the great wall of
Kar-ṣamaš. Year 42 of King ammu-r pi’s regal year.342
L8 In the month gišapin-du8-a, (the month the seed-plow is let go), the 4th day.343 Lines
38-41:
“in the year in which king Samsu-iluna dug the Samsu-iluna-canal brings
abundance. (Year in which (Samsu-iluna) dug the Eden-canal (called Samsu-iluna-),
canal brings abundance – regal year 4 b)”.344
L9 The following clause is present: lines 19: [mu Samsu-iluna lugal-e…] - [Month, Date,
Year X Samsu-iluna].
In L10, the date is not legible due to the damaged tablets.
(vi) Seal impressions
In all the texts, seal impressions were present, except for L10 where the seal is unknown. See
Part C regarding the seals. The seals are unfortunately not in a satisfactory condition, and
340
(Old Babylonian Date Formulae)
February 2012.
341
(Old Babylonian Date Formulae)
February 2012.
342
(Old Babylonian Date Formulae)
February 2012.
343
See discussion by Cohen (1993:97).
344
(Old Babylonian Date Formulae)
February 2012.
http://cdli.ucla.edu/tools/yearnames/HTML/T10K10.htm Cited 2
http://cdli.ucla.edu/tools/yearnames/HTML/T12K6.htm Cited 2
http://cdli.ucla.edu/tools/yearnames/HTML/T12K6.htm Cited 2
http://cdli.ucla.edu/tools/yearnames/HTML/T12K7.htm. Cited 2
242
some present-day translaters did not copy them properly. However, in L4 and L9 the names of
some of the witnesses are evident together with their statuses (son or servant of X).
(vii) Rhythmic sequence: essential elements E1-5 and natural elements N1-N12
The essential elements comprise the following outline with the following texts (see Appendix
G):
Larsa seq E.1 - Estate owner: deceased father (DF), contractual party: brothers (B) (Larsa
seq E.1: DF:B). In this regard, the following texts contain this sequence: texts L2 (Rīmṣin I ; L3 (Rīm-ṣin I ; L4 (Rīm-ṣin I ; L5 (Rīm-ṣin II and L6
ammu-r pi (L10
undated).
Larsa seq E.2 - Estate owner: deceased father (DF), contractual party: sister/s (S) and
brother/s (B) (Larsa seq E.2:DF;S,B). Only text L1 (Rīm-Sîn I).
Larsa seq E.3: Estate owner: deceased father (DF) and deceased mother (DM), contractual
party: sister/s (S) and brother/s (B) (Larsa seq E.3:DF,DM:S,B). Two texts reflect the
sequence, namely texts L7 ( ammu-r pi) and L8 (Samsu-iluna).
Larsa seq E.4: Complex family relationships – combination of 1-3 (Larsa seq
E.4:complex).
Only one text, L9 (E4:compDF:B,N) (Samsu-iluna), reflects this
combination of a deceased father, brother and nephew as contractual parties.
With the natural elements all the texts, except L3, comprise of Nat 6, 7 and 12 (Nat 6; no
claim; Nat 7 an oath; Nat 12 witnesses). L3 only has an oath- and a witness clause.
The natural elements presented in the texts with variations are: Nat 2 “bringing in”; Nat 3
division by lots; Nat 5 “much as there is”; Nat 6 no claim; Nat 7 an oath, Nat 8 a preference
portion; Nat 9 “equal shares”; and Nat 12 witnesses.
Larsa seq 1 Nat: 2,5,6,7,9,12: (Nat 2 “bringing in”; Nat 3 division by lots; Nat 5 “much as
there is”; Nat 6 no claim; Nat 7 an oath; Nat 9 “equal shares”; Nat 12 witnesses): The
243
elements occur in texts L4 and L7.
Larsa seq 2 Nat: others: (Nat 2 “bringing in”; Nat 3 division by lots; Nat 9 “shares equal”;
Nat 5 “much as there is”; Nat 6 no claim; Nat 7 an oath; Nat 8 a preference portion; Nat
12 witnesses). The elements occur as follows in the texts: L1 (Nat 6,7,12); L2 (Nat
5,6,7,12); L3 (Nat 7,9,12); L5 (Nat 3,6,7,12); L6 (Nat 2,3,6,7,9,12); L8 (Nat 2,3,6,7,9,12);
L9 (Nat 6,7,9,12); L10 (Nat 3,5,6,7,8,12).
7.2.7.4 Summary
See table outline (infra) regarding a synoptic comparison of the different incidental elements
of Old Babylonian Larsa.
Table 11 Outline of the incidental elements of Larsa division agreements
LARSA
Division agreement of a deceased family member’s estate
Recorded division agreement
Incidental elements:
“exterior and interior decorations” of the “house”
e.g. paint colour combinations, type of windows and doors,
floor tiles, carpets, house lights
Written formalities of agreements
I 1 Names of
Names of the contractual parties and their relationship to each other were
contractual
mentioned in each text.
parties, rank
I 2 Birth order of
brothers
I 3 Description
of awards/assets
I 4 Special legal
terms
Only in text L10, reference was made to birth order as a result of the
existence of the gišbanšur zaggulá clause, the preferential share-clause.
There were fairly good descriptions of the properties with description of
their boundaries in relation to the unit.
a-la: is the inheritance share of X.
é kiri6 giškár nì-šu-gal* nì*-gá*-gál-la ša ad-da-ne ì-ba-e-ne movable ground, orchard, furniture, goods and liquidities as much as there
was, who belonged to their father, they divided.
ì-ba-e-ne - they divided.
ur-sè-ga-bi [ì-ba-e]-ne - they [have divided the estate] into equal parts.
mi-it-ha-ri-iš i-zu-uz4-zu - they agreed to the division and divides the
estate equally.
giš
banšur zà-gu-la 1 gišbanšur tur – preference portion.
ma-na kù-babbar ta-ap-pi-la-at bi-tim - and 5/6 mina of silver as
compensation for the house.
u4-kúr-šè šeš šeš-ra inim-ma nu-gá-gá – brother against brother will not
lodge a claim against another.
é-a-ni ba-bé-e-eš – they agreed to the division of the houses.
244
giš
I 5 Oath clause
(king/god)
I 6 Witnesses
names,
rank/family
standing
šub-ba ì-šub-bu-ne-eš – casting of lots.
mu dnanna dutu damar-utu ù ha-am-mu-ra-pí lugal in-pàd- eš – oath
clause.
King and gods: Kings: Rīm-Sîn, ammu-r pi or Samsu-iluna.
Some instances by the god/gods S n, ṣamaš, Nanna or Marduk.
Witnesses with their rank and standing e.g. (son of X).
L4: four merchants mentioned.
L6, L7 and L10: scribe mentioned.
L9, professions were mentioned: Ilšu-ibnīšu, the surveyor and Puzir-Nazi,
the builder.
Qualities of texts
I 7 Language
L1, L2 and L9 were written in Akkadian and Sumerian.
Remainder of the texts in Sumerian.
I 8 Location
Larsa.
I 9 ablet’s
Fairly good conditions in the majority of texts. There are a few omitted
lines in some tablets due to damage and erosion.
condition
I 10 Number of
The entire agreement was recorded on one tablet.
copies
I 11
Date formulas in all of the texts, except for L10.
Date formula
I 12 Seals
Seal impressions in all of the texts, except for L10.
impressions
I 13 Rhythm
See Appendix G.
sequence
The names of the contractual parties were mentioned in all of the texts.
In texts, L1-L9 there was no preference portion mentioned; only in text L10, reference was
made to the birth order, as well as to a gišbanšur zaggulá clause (preference clause).
In the Larsa texts, regarding the description of the assets in some texts, only the more valuable
items that were divided were mentioned, such as immovable property and slaves. In the
majority of the texts, the following assets were described: namely the description of the unit,
the extent of the unit, and the position on, or in relation to a unit. In terms of movable
property, a description was furnished to identify the asset, for example, two doors.
In Larsa, special terminology regarding different legal practices in the texts, were thus: a-la the inheritance share of X, ì-ba-e-ne - they divided, u4-kúr-šè šeš šeš-ra inim-ma nu-gá-gá –
brother against brother will not lodge a claim against another, and mu - the oath clause.
245
The oath clauses appeared in all ten of the Larsa texts. In these texts, they swore by the king
of the day, that is, by Rīm-Sîn,
ammu-r pi or Samsu-iluna, and in some instances by the
gods Sîn and/or ṣamaš and/or Nanna and/or Marduk. Each text was different, depending on
the king and gods named in it. It is unknown whether this was the choice of the scribe and/or
the contractual parties. In all the Larsa texts, except one, the contractual parties’ agreed
portions were recorded in one text only. Therefore, if it were the choice of the parties which
king and/or gods to name, then that became the choice of all the contractual parties.
In three texts, the name of the witness and status (son of X), as well as the scribe’s name and
his profession (dub-sar) appeared. In four of the texts, the names of witnesses and their
statuses (son of X) were mentioned, and in two texts only the names of the witnesses were
recorded and in one text, L9, the names and family relationships are mentioned – son of X.
Professions were also mentioned in the following manner: Ilšu-ibnīšu, the surveyor and PuzirNazi, the builder.
In three texts, the written language was Akkadian and Sumerian, while the rest of the texts
were written in Sumerian.
In all of the texts, only one copy was created, it therefore appears, that all the contractual
parties’ agreed portions, were recorded in this particular text.
Unfortunately, the majority of the tablets were damaged, but some assessment could still be
formed from the details and types of contracts.
There were unique conventions applicable in Larsa for scribal traditions, especially regarding
the names of the contractual parties, description of the assets, special legal terms, the oath
clause, witnesses, the language which is predominantly Sumerian, the recording of the
agreement that was only in one copy, the presence of a date formula, as well as some seal
impressions.
246
7.3
7.3.1
NIPPUR: COMPARISON OF TERMS IN DIVISION AGREEMENTS
Introduction
Nippur, the ancient city called Niffer today, lies near the city of Diwaniyah. To reach Nippur
in the 1880’s, it was necessary to travel by boat; however in the Mesopotamian period, the
city was situated next to the Euphrates River, and linked with Sippar in the north and
Shuruppak in the south (Leick 2001:141).
In this section some notes on Nippur’s archaeological-, residential and geographical-, as well
as institutional backgrounds are given. Following with a content analysis and comparison
study of the different elements-categories in this city-state.
7.3.2
Archaeological background
Austen Layard began with excavations in Nippur in 1851; however, he was forced to
discontinue working due to the extreme climatic conditions (Leick 2001:141). The University
of Pennsylvania in
merica were interested in the area in the 1880’s, sending Peters who
commenced with his first season in 1887, and delivered 17 000 tablets to the university (Leick
2001:142).
In 1899, the German Assyriologist, Hilprecht, completed only one season on the site; and
after claiming to have discovered the Temple Library of Nippur, he published the book
“Exploration in Bible Land” in 190 .
here was controversy over not only his “position at
Pennsylvania’s museum”, but also around the ownership of the clay tablets shipped to
America (Leick 2001:142). In addition, from the start of the excavations, problems ensued.
Although there was some careful planning done, numerous problems arose during the
excavations: the funds were inadequate, and the local situation around Nippur was unsafe due
to unfriendly tribal relations. The temperature was high, and the sandstorms “often parch the
human skin with the heart of a furnace” (Postgate 1977:44). The tablets from these 1899-1900
Pennsylvania expeditions, were divided between the Museums of Istanbul, Jena and
Philadelphia (Westenholz 1975:1).345 The state of the Old Babylonian texts were better
preserved, than the Sumerian texts, and it was probably due to better quality of clay used for
Cf. Zettler (1992:325-336) regarding the “behind the scenes” discussion of the history of the University
of Pennsylvania and University museum’s contributions in the excavations at Nippur.
345
247
the tablets (Westenholz 1975:1).
Gibson (1992:33) opines that it is almost impossible to retract “statistically valid collection
[from] the Nippur site” for the sand covered the whole area more than three quarters. There
were more than 400 dumps left by the Pennsylvania expedition in 1890’s and recent
excavations, since 1948.
Unfortunately, at the outbreak of World War I, all plans for excavation ceased; only in 1948
did Chicago
riental Institute of the university, “in temporary collaboration with
Pennsylvania University”, recommenced excavations. These excavations lasted for nineteen
seasons, from 1948 until 1990 (Leick 2001:142).
7.3.3
Residence and geographical background
One of the best-preserved ancient maps of a Mesopotamian city was that of the city of Nippur,
which according to Van de Mieroop (1997:63), was recorded around 1300 BCE.
The
fragmentary map included the city wall, its gates, course of the Euphrates river, subsidiary
canals and temples. This helps present-day scholars to assess how other Mesopotamian cities
would have looked like, although the total layout of this Nippur map was incomplete due to
corrosion damage (Van de Mieroop 1997:64).
Nippur was inhabited from the Ubaid period (5000 BCE), and reached its peak in the Ur III
period (Leick 2001:143; Gibson 1992:41).
During intervals in the Isin-Larsa and Old
Babylonian period, “the city shrank in size…the entire southern mound became deserted”
(Gibson 1992:42).
In King’s
ammu-r pi ninth year, Rīm-Sîn II of Larsa took control. Samsu-iluna regained
the city, but only for a short period.
Samsu-iluna managed to revived the city by re-
establishing the water supply. According to Leick (2001:143), with Nippur as an example, it
is evident that a “Mesopotamian town depended on the fluctuations of the river course”.
ccording to Leick
001 14 , the “behaviour” of the Euphrates River regulated the “fate of
Nippur” and other cities alongside the river. he Euphrates changed its course through time
(Leick 2001:145-146 .
“human” environment was created by extensive early irrigation on
the southern alluvial plain of Mesopotamia: for millennia, these geographical areas were
248
plagued with wind and water erosion (Brandt 1990:67).
In Samsu-iluna’s 8th year, the king of the Sealands, Ilima-ilu, conquered Nippur. The water
supply could not be attained once Nippur was abandoned, a year later after the conquest and
only in the Kassite period it regained its residence (Stone 1987:26-28). Gibson (1992:42) also
considers the large scale abandonment because of the shortage of water supply. Complete
abandonment at Nippur occurred at about 1720 BCE (Stone 1987:26).346
7.3.4
Institutional background
Leick
001 14
opines that Nippur’s role in the “southern city-states and centralized
kingdoms is unusual” for it “was never a seat of government but derived its prestige from a
position of neutrality, and its potential for legitimizing hegemony over the whole country”.
She considers Nippur to be “a town of academics, a Mesopotamian
xford or Cambridge”
and made the statement that it had a “reputation as much for intellectual snobbery as for
erudition in obscure disciplines” Leick 001 14 .
Although, Nippur “never possessed a ruling dynasty of its own”, the city-state managed to
maintain “political neutrality, while acting as a religious centre to which other cities and rulers
turned” Bertman 2003:27).
With the excavation of the mounds by archaeologists, the residential quarters of the Old
Babylonian period “clearly showed the fluctuation of wealth and population density” Leick
2001:143). The named “scribal quarter” delivered tablets of high quality from private houses.
Numerous tablets from the Old Babylonian period were discovered from the reigns of its
kings. When the Old Babylonian King Rīm-ṣin conquered Isin, a thirty year peaceful period
began for Nippur.
owever, during this king’s reign there were still “inequalities and
imbalances in the social system” Stone 1987
. There were lesser private transactions
recorded during the reign of Rīm-Sîn; in relation to those in the reign of
ammu-r pi. Private
economic activities heightened in King’s ammu-r pi reign Stone 1987 6 .
Ekur or “Mountain
ouse”, was the god Enlil’s temple, and the most important temple of the
god (Bertman 2003:27).347 Another significant temple was that of the god Enlil’s daughter,
346
347
Cf. discussion by Gibson (1992:33-53) of a sketch of Nippur’s settlement history.
Cf. discussion by Lambert (1992) regarding the position during the old Babylonian period of Enlil the
249
Inanna (Bertman 2003: 28). The gods in Nippur, as in the other cities, played a major role,
and the inhabitants of the cities were “thought to depend entirely on the benevolence and
active protection of the city gods” Leick 001 146 . he main gods of Nippur were Enlil,
Ninurta and Inanna (cf. Leick 2001:151-158). Like its god Enlil, Nippur was known for “the
place where decisions were made and promulgated”. This was a divine, and human assembly
(Lieberman 1992:129). As a result it became a “centre of law expertise” and an educational
centre (scribal schools) (Lieberman 1992:134).
Nippur was also well-known for its huge agricultural holdings around the temples, with
occupations filled to accommodate the temples’ economic activities.
here were a large
number of labourers and field workers, gardeners, and temple personnel such as singers,
musicians, exorcists, diviners and specialists in different cultic practices (Leick 2001:159).
Leick (2001:159) opines, “religious titles were linked to the political state of Nippur”. Nippur
had several temples and albeit, they were “prosperous or influential”, Leick (2001:158) opines
that they had a “large number of personnel” and therefore that there were an “unusually high
concentration of literate persons” in Nippur.
he division texts described the allocation of
temple offices: in Nippur, these offices “were enumerated according to status, either by
usufruct of temple lands, which could be leased, or ration, some of them large enough to be
further distributed, some to cover subsistence needs”. The temple offices could be inherited,
offered by the king and temple authorities, and acquired by adoption by an official who
bequeath the office to his adoptee beneficiary of his deceased estate, by means of an
inheritance (Leick 2001:159).
Only a small temple archive was excavated dating from the Isin-Larsa and early Old
Babylonian periods. What could be gathered from the tablets was “a form of bookkeeping
which listed incoming and outgoing offerings and rations expenditures”. It seems that the
deities received offerings of food and items, which were “redistributed” to the temple
personnel. It was a complex calculation of distribution, and there must have been a “central
authority” Leick 001 160 .
“lord of the lands”, who was also the god of the city Nippur, in relation to the exalted Marduk “lord of the
heaven and earth/netherworld and god of the city of Babylon (Lambert 1992:125). Lambert (1992:119-126)
illustrates that Enlil’s supreme position in the Sumerian pantheon, who was the god who make important
decisions, loses his political power as the god of Nippur, in the third millennium BCE, to that of the god Marduk
and the city-state Babylon.
250
The temples with their economic activities, and the great estates of Nippur with their
dependants and workers, all required a complex and efficient administration; the demand for
“decision” by specialists in oracles and legal matters, and the “liturgy of the gods” with its
songs, hymns, incantation, literary works, and so forth, all depended on the scribal services
(Leick 2001:160).
7.3.5
Essential elements
7.3.5.1 Introduction
The essential elements (basic requirements) must be present for an agreement to be
categorised as a division agreement. In the Nippur texts N1-10, Part C, these elements are
present in the division agreements implicitly by means of specific terms, while in a few
instances conclusions could be drawn indirectly from the context of the agreement.348
7.3.5.2 Family connection of contractual parties/co-owners
The division agreement must be an agreement between family members. In most of the
Nippur texts, the brothers were contractual parties; only in a few texts were other family
members included as contractual parties to the contract. The family connection outline is
thus:
In N1, three brothers349 were contractual parties to a division agreement.350
In N2, possibly, a nephew and an uncle351 were contractual parties to a division
contract.352
348
See table 21 in the conclusions-section of this chapter to understand the logical flow of the essential
elements of Nippur.
349
d
Sîn-imguranni (eldest), Tarîbum and Anu-pî- Ilabrat, the sons of the deceased father, Sîn-îriš. Terms
used are šeš-gal (oldest brother), šeš-a-ni (his brother) in the inheritance portion-section and ibila (heirs). See
Part C, N1.
350
This is a division agreement between three brothers Sîn-imguranni (eldest), Tarîbum and Anu-pî- Ilabrat
wherein they divided by mutual agreement (line 12) their communally held inheritance, inherited from their
deceased father’s estate, Sîn-îriš. Sîn-imguranni was the eldest brother as shown in lines 4 and 14. The
contractual parties agreed in one document to the whole division of the paternal estate ’Callaghan 19 4 1 7 .
351
Ududu, the son of the elder brother and Ninib-rim-ili, the nephew. See the term use: dumu-šeš-gal (son
of the elder brother) in Part C of text N2.
352
The text is a division agreement between Ududu, the son of an elder brother (line 6) and Ninib-rim-ili.
No implicit reference in the text was made to Ninib-rim-ili as a brother or uncle; however in the context of the
text there seems to be a family link. It could be an agreement between brothers, cousins or an agreement between
251
In N3, the deceased father353 and his sons, as brothers, agreed to the division of an estate.
In N4 the daughter354 and an unknown party to the deceased (possibly the stepfather of the
daughter and spouse of the deceased’s wife , who by agreement adopted the daughter as
beneficiary to his estate, were contractual parties to the division agreement.
In N5, there were two estates involved.355 The first estate was that of the predeceased
father356 of the deceased older brother,357 and his younger brother.358 This younger brother
was a contractual party along with the deceased brother’s son.359 The second estate was
the estate of the deceased older brother,360 who died – presumably after or simultaneously
with his predeceased father.
he deceased brother’s son together with the deceased’s
younger brother, inherited this estate: the estate of the predeceased father/brother and
grandfather/father form part of the terms of this division agreement. For some unknown
reason the estate of the first deceased was not divided between the brothers; now, after the
one brother’s death, his property and his inheritance deriving from the deceased’s father,
form part of this division agreement.
In N6, four brothers361 were involved in a division agreement. Only one contractual
a nephew and an uncle. It seems more likely from the context of the text that it is a division agreement between a
son of the eldest brother and a younger brother, or in other words an agreement between a nephew and an uncle.
In other Nippur texts, the son of the predeceased brother usually concluded a division agreement with his uncle,
the brother of his predeceased father. See in this regard texts N2, N4 and N9.
353
Lugal-azida (father) and his sons NinIB-nirgal and Rim-Ištar brothers . See terms used in Part C, N3:
šeš-a-ni (his brother) and ibila (heirs of X).
354
Narubtum (daughter, dumu-sal) and Ur-Pabilsagga (unknown party, possibly stepfather).
355
Schematic outline of the family :
Enlil-mansi. Terms used in texts are : son of (dumu) and children of (dumu- eš). See Part C.
Ina-Ekur-rabi.
358
Sin-išmeani.
359
Igi-šag.
360
Ina-Ekur-rabi
361
Sons of their unnamed father, the elder brother Ur-Duazagga, and others: are Ellil-1ušag, Ur-DUN-PA-ea,
Nannar-ara-mungin. Terms used are elder brother (šeš-gal-la), his brother (šeš-a-ni), etc. See Part C.
356
357
252
party’s share, that is, the share of the elder brother,362 was recorded in this text. Unlike the
other Nippur recorded agreements, this transaction reflects only one brother’s share, even
though Poebel refers to the text as the “division of an inheritance among four brothers”
(Hilprecht 1909:23). From the context of the text, it seems that there were four brothers
involved. However, three brothers were directly mentioned in the “bringing in”, by means
of a payment to one of the brothers. Reference to the brothers was also made in the
description of the recorded brother’s share. It seems there was a division agreement
between the brothers in the paternal estate, due to the presence of the zaggula bowl in
Column 15 – where the text mentions “the privilege of the elder brother”.
In N7, two brothers363 were contractual parties in the assets of their father’s estate.
In N8, brothers364 were contracted in a division agreement of the deceased estate assets in
their father’s365 estate.
N9 was a recorded division agreement366 between an uncle367 and his nephews.368
In N10, two brothers369 were contracted in a division agreement in their father’s estate.
7.3.5.3 Estate owner: kinship relationship
362
363
364
365
In N1,370 N3,371 N8372 and N10,373 the deceased father’s estate was divided.
Ur-Duazagga.
The eldest brother, Nanna-meša and younger brother dda-kala. Term šeš-gal (eldest son). See Part C
Ninurta-muštal probably the eldest , Namaršu-lumur & Muna-wirum.
Ibbi-Enlil.
366
367
368
369
370
371
Ili-awili.
Ibbi-Enlil and Nanna-aya. See terms used in Part C.
The eldest brother Mannum-mešu-li ur and younger brother Munawiru. See terms used in Part C.
Sîn- riš.
Lugal-azida.
253
In N , N6 and N7 an unnamed deceased father’s estate was divided.
In N4, two estates of a mother and grandmother were divided.
N5 was a division agreement in two deceased estates, the first being that of a predeceased
father, and the second partly that of the deceased older brother, who died presumably after
or simultaneously with his predeceased father.
In N9, the estates of a predeceased father and brother were divided.
7.3.5.4 Estate assets: fully or partially divided
In the context of each text an assessment could be made, to a certain extent, on whether all or
some of the inherited estate assets were divided and awarded to the different contractual
parties, according to a division agreement. Such an assessment follows:
In N1, it seems that all the estate assets, movable and immovable property were described
in the text.
In N2, different assets were described. The whole of the estate was probably divided and
consists of various estate assets, namely: the office of the anointing-priest of the goddess
Ninlil, and the office of the purshumu, with an irrigated field for sustenance, and another
irrigated field and constructed house, garment, fifteen shekels in money, zaggula bowl,
itgurtu-instruments, beds, chairs and male slaves. No mention was made of the “bringing
in” of goods or cash.
In N3 only a house and money were divided. In the text, no movable property was
mentioned, such as house goods.
In N4 houses, upland gardens, maid-slaves, man-slaves, and property, for example “1½
acres of usû field for additional payment for Ishkur-rim-ili, the man-slave” were
mentioned. Each party was awarded a male and female slave, however one contractual
party374 received a male slave375 who was worth more than the other slaves. An additional
field was brought in as payment for that slave. The words used in the text were: ki-búr-
372
373
374
375
Ibbi-Enlil.
Nuska-ama .
Narubtum.
Ishkur-rim-ili.
254
ru.376
dditionally, the parties agreed that a third of the grandmother’s fortune should be
part of the agreement. It is uncertain what this fortune consisted of.
In N5 items such as a house, field and garden, furniture, the “bringing in” of six shekels of
silver and held the office of a priest of Enlil for six months per year were reflected in the
division agreement.
In N6 items such as fields, a garden, a house, an office, a door, a beam, furniture, a bowl
and food of the kala office were agreed upon in the division agreement.
In N7 the estate seemed to be fully divided containing a variety of assets, including
custodianships, a house, and movables such as doors, fields, a wagon wheel, boards and a
chair.
In N8, it is not clear if the whole of the estate was involved. In the agreement, the text
only mentioned the edadi-ship and stipulated that the inheritance be divided by casting
lots.
In N9, the assets were not mentioned in detail, but it seems that the inheritance estate
assets were fully divided.
The tablet of text N10 was badly damaged and therefore a proper assessment could not be
made of the type and quantity of the divided awarded assets, although it seems that the
valuable assets were distributed by agreement, which included various custodianships of
gates and temples, one ceremonial family table which was the preference portion of the
eldest brother, a house property and a house plot.
7.3.5.5 Mutual Consent
The term šega from še-ga-ne-ne-ta, which means agreement is a common term used to reflect
the mutual agreement, reached between the contractual parties. This mutual consent term
occurred as follows:
The named búr clause is also reflected in exchange documents where the parties’ aim is a quid pro quo
division of the assets.
376
255
In N1, N2, N3, N5, N7, N8 and N10 the contractual parties concurred in mutual
agreements, and divided the inheritance by using the term še-ga-ne-ne-ta.
In N4, the parties implicitly mutually agree to an equal division. The contractual parties
only stated that they had divided the estate into equal parts, and in the future, neither party
would have the power to revoke this agreement.
Text N6 does not mention a mutual agreement; however, the text is damaged and thus a
proper conclusion could not be reached.
In N9, the mutual agreement was implicitly mentioned. However, the terms a-la and ba
were present and translated in context as “the brother of their father has been given (his)
inheritance portion”. This should be read together with: will be divided equally by lot .377
7.3.5.6 Raison d’êtr˹
The mechanisms – an exchange, sale (“bringing in”) and donation, constituted the
discontinuation of co-ownership and the change to sole-ownership regarding certain assets or
portions of assets, and the variation thereof occurred, are thus:
In N1, the unique solutions found in the division agreements were those where the
deceased estate assets were divided in meticulous equal portions of sole ownership. The
deceased father’s estate was divided by paying attention to the in-na-an-búr clause, and
balancing the value of each deceased estate asset awarded to a beneficiary, as a quid pro
quo in conjunction with the rule of preference-portion, of the eldest brother (gišbanšur
zag-gú-lá síb-ta mu-nam-šeš-gal-šè) and the casting of lots (giššub-ba-ta in-ba-eš).
In N2, the terms še-ga-ne-ne-ta
giš
šub-ba-ta in-ba-eš, translate as they mutually agree to
a division by lots. In this text, there was a division of the inheritance between the brothers
Ududu and
dNinib-rim-ili
to change their communally-shared inheritance to sole
ownership. It is impossible to assess if this was a quid pro quo division. Ududu received
Column 3, line 9-10 : šeš ad-da-ne-ne a-la-ba in-ne-en-ba; and column 3, line 19: téš-a síg-ga-bi inba-eš-a.
377
256
far less assets in relation to his brother dNinib-rim-ili. The awarded assets of the second
contractual party, Ninib-rim-ili, were evaluated by an unknown person, although it seems
that the contractual parties were in mutual agreement with the whole division and by
implication, this included the valuation of the assets. The awarded assets of Ududu, were
not valued. The brother, Ninib-rim-ili, was the only party who received cash. There were
only two items, which the contractual parties received in equal parts. No monetary value
was placed on these items, maybe because they both received the same kind of item?
Though, although both contractual parties received an irrigated field, only the field
of
Ninib-rim-ili, was valued. Furthermore, Ududu received the office of the anointing
priest of the goddess Ninlil, and the office of the purshumu, together with one irrigated
field for its sustenance. According to Chiera (1922:53), certain fields, attached to the
temple-offices, were paid as remuneration or a part thereof. dNinib-rim-ili’s awarded field
was not connected with the priesthood. In addition to the field, dNinib-rim-ili received, a
house which was also valued. In line 4, one zaggula bowl was awarded to Ududu whose
assets were not valued.378 Chiera refers to Poebel who stated that the presence of the
zaggula bowl, “nearly always” indicates the existence of a preference portion for the
eldest brother (Chiera 1922:53). The awarded zaggula bowl, together with the fields, that
could be considered as a salary from the priesthood, could maybe strengthen the argument
that the receiver, Ududu, was awarded more valuable property than his brother.
In N3, a quid pro quo agreement between brothers was concluded. Each brother received
the same assets, consisting of houses and seven shekels of silver for each party. The
division of the assets were equal in value.
In N4, the one contractual party379 received more immovable property than the other. A
slave was then awarded to one of the contractual parties380 by means of a búr clause,
where the receiver had to pay for receiving the slave, to equalise the value of the awarded
assets to all of the contractual parties.
The division agreement in N5 was an agreement between Igi-šag and his uncle, who was
the younger brother of Igi-šag’s father. Two estates were involved. See schematic outline
378
379
380
Line 4: I gišbanšur zag-gu-lá gišliš - one zaggula bowl.
Ur-Pabilsagga.
Narubtum.
257
of the family (infra).
Figure 12 Schematic family outline of N5 division agreement
Poebel is of the opinion that this text is of “special interest”. It recorded a “division
already effected” where the enumerated heterogeneous portions of the two beneficiaries,
nephew and uncle, were to balance each other, and include a “future division” regarding
the rest of the inheritance, which the parties stated with the phrase: ni-ba-e-ne “they shall
divide” (Hilprecht 1909:25). The text does not provide background information on why
the parties wanted to conclude a division agreement. Normally, it seems that a division of
the assets occurred at the time of the death of the estate owner:
in this case the
grandfather or father. It seems in this case that a division occurred later, but no reason
was given for the delay. Either it could have been due to the sudden death of the brother,
or that the two brothers were content with co-ownership, so that only at the time of death
of one brother, the surviving brother and nephew, the son of the deceased brother, wishes
to conclude an agreement to escape the perils of co-ownership. Different elements are in
place here; however it is still a typical Nippur agreement, contracted with elements
present, such as the preference rule (gišbansur zag-gú-lá) in section A of the text, and a
“bringing in” clause (in-na-an-búr) before the inheritance share clause in Part B of the
text, regarding the uncle who had to receive money in order to rectify an unequal division.
In Part, C there is a quid pro quo division of the estate assets. Thus, the text was neatly
divided into three parts, of which the first part of the tablet is accompanied by a division
line. The first381 and second382 parts consisted of the assets derived from the inheritances
381
In the first section, the preference rule was applied and awarded to the son of the deceased oldest brother.
In this section, the son by agreement, received one sar built house and three acres of dabta field, which
according to the second section seems to be part of the predeceased father’s estate, and which should have been
divided by the two brothers; however for some reason this did not occur. It could have been that the two
brothers were co-owners, or that the deceased brother died a sudden death before an agreement could be
finalised. In order for the son of the deceased brother to receive the house and land, deriving from their
predeceased father’s estate, the surviving brother and his nephew agreed that the nephew had to pay six shekels
258
of both estates. In the last section, the parties dealt with the assets of the deceased
brother’s estate, since every contractual party received half of each asset, including
furniture, a house, a garden and a field. Interesting to note is that in sections 1 and 2,
regarding the inheritances of both estates, the parties clearly described and provided the
dimensions of the assets, but in the last section, pertaining to the estate of the deceased
elder brother, no clear descriptions were given.383
In N6, a reshuffling of estate assets were involved, where the preference rule was applied,
and an exchange, together with some quid pro quo division took place, by paying some of
the brothers for their received share. The eldest brother received, as part of his preference
portion, two shekels of silver from the purchase price of a slave and a fourth (of a shekel)
of silver for a unknown ring (text was damaged), which one brother384 paid him. There
was a 5½ gan of “great reed” field awarded to the eldest recorded party, as an equivalent
of a built house. The office of the pashishu of the temple of Ninsun, was also awarded to
the eldest as an equivalent of the usû field.
The eldest brother paid for a female slave,
whose value in money was 11 shekels.
In N7, a quid pro quo-division of a more or less equal division of the estate assets took
place. Although the eldest brother was identified, no preferential share was awarded to
him. Further, the contractual parties divided the shares of a certain orchard up into lots.
In N8, a reshuffle of the inheritance estate assets took place in order to shift from coownership to sole ownership. The contractual parties were in mutual agreement and
divided the inheritance by casting lots.
of silver to his uncle including the priest’s office .
382
In the second section, the uncle received two sar of built house, two and one-thirds of waste ground and
nine gan of dabta field. his seems to derive from the uncle’s predeceased father’s estate. In section , the búr
clause was present.
383
Poebel differentiates between the agreements of Nippur, Larsa (Tell Sifr) and Sippar. He opines that in
Nippur in certain instances, the contractual parties acquired fixed shares by agreement in advance of a future
division that would still occur. The same applied to the agreements of Larsa (Tell Sifr). In Sippar, an interesting
division was effected. By agreement, the beneficiaries received deeds, and the portions of the contracting parties
were allotted. The following provision was thus made at Sippar, however, it was the custom to furnish the
beneficiaries with deeds, in which the portions of all persons participating in the division were not put down, but
only the portion of the person for whom the document was drawn up, followed by an addition like this “all this,
the inheritance of X, which he divided with Y, Z, etc., his brothers, has been definitively allotted. The property
which later shall turn up, they shall divide into equal parts” ilprecht 1909 7 .
384
Ellil-lushag.
259
In N9 the text states that the “heir of Sin-iqišam, the father being Ili-awili, the brother of
their father has been allotted his inheritance portion. So that in future neither Ibbi-Enlil
nor Nanna-aya would raise a claim against the heirship of Ili-awili, they swore in the
name of the king. According to the sealed tablet of the division (of inheritance), the items
of Ili-awili and those of Sin-šemi will be divided equally by lot”.
In N10 the term še-ga-ne-ne-ta appears. Stone & Owen (1991:87-89) did not translate this
term fully and it seems that the various custodianships, the preference portion, house
property and house plot were divided by mutual agreement and by lots between the
brothers using the terms še-ga-ne-ne-ta gišsub-ba-[ta in-ba]-eš.
7.3.5.7 Summary
The essential elements of a division agreement are present in all of the ten division
agreements of Old Babylonian Nippur.
See table outline (infra) regarding a synoptic comparison of the different essential elements of
Old Babylonian Nippur.
Table 12 Outline of the essential elements of Nippur division agreements
NIPPUR
Di ision agree ent of a deceased fa ily e ber’s estate
Oral division agreement reflected in recording on tablet
Essential elements:
Basic require ents “to be a house”
“building aterials” for a house e.g. walls, roof, windows, door
Family
Brothers, nephew and an uncle, daughter/granddaughter.
connection
Deceased
Deceased father’s estate elementary division).
estate owner Two estate properties are divided among family members (complex division).
Estate assets Whole of the estate is divided, varieties of assets, mostly involving edadi-ship.
Mutual
še-ga-ne-ne ta (Sumerian).
consent
Raison d’êtr˹ Mechanisms: exchange and “bringing in”, sometimes donation (small scale).
Supported by: in-na-an-búr: balancing the value of each deceased estate asset
awarded to a beneficiary as a quid pro quo in conjunction with the rule of
preference-portion of the eldest brother (gišbanšur zag-gú-lá síb-ta mu-namšeš-gal-šè) and the casting of lots (giššub-ba-ta in-ba-eš).
Family connection: In six of the ten texts (N1, N3, N6, N7, N8 and N10), only brothers are
260
involved in the division of the estate of their deceased father. In N2, the contractual parties
are brothers or a nephew and an uncle. In N4, as an anomaly in the agreement of the Old
Babylonian Nippur division texts, the estates of women are divided, and the contractual
parties are the daughter/granddaughter of the deceased, and the husband of the deceased
woman. This agreement contained a unique clause, namely an adoption agreement between
the contractual parties, wherein the stepfather adopted the daughter/granddaughter of the
deceased.
Deceased estate owner: In N5, two deceased estates are involved in the division agreement of
the deceased father and eldest brother. The contractual parties are the nephew and uncle. In
N9, two estates of the deceased father and brother are also involved in a division agreement:
the contractual parties are brothers and nephews. Thus, there seem to be two different types
of estate division: an elementary one noted in most of the texts, where only the deceased
father’s estate is divided, and then a more complex division of deceased estates, where two
estate properties are divided among family members. Only four of the ten Nippur texts
reflected the characteristics of a complex division.
In all the texts, family members are involved, except for an anomaly situation in text N4. In
this text, the parties, although not related by blood, concurred by means of an adoption
agreement at the death of the adopted father that the adopted daughter would receive her
inheritance deriving from the estates of her mother and grandmother.
Estate assets: In nine of the ten estates there are varieties of assets, mostly involving edadiship, where it was only mentioned in one estate, namely in N8. Thus, it seems that for each of
the nine estates, the whole of the estate is divided.
Mutual consent: In seven of the ten estates, the term še-ga-ne-ne ta (in mutual agreement) is
mentioned explicitly, but in the other three texts (N4, N8 and N9), it could be ascertained
from the context, that the parties mutually agreed to an agreement.
Raison d’êtr˹: In the ten Nippur texts, the mechanisms for the division of the estates, rested in
the exchange, together with the “bringing in” mechanism. Using these mechanisms in the
division agreements, the deceased estate assets are divided into equal portions of sole
ownership. The deceased parent’s estate is divided by paying attention to the in-na-an-búr
261
clause, balancing the value of each deceased estate asset awarded to a beneficiary as a quid
pro quo, in conjunction with normally the rule of preference-portion of the eldest brother
(gišbanšur zag-gú-lá síb-ta mu-nam-šeš-gal-šè), and the casting of lots (giššub-ba-ta in-baeš). Notwithstanding the efforts to devise an equal division, there are some instances where a
donation is used as a mechanism for division. However, dividing an estate with complex
assets is difficult, and donations are occasionally made, but only on a small scale. It is
evident from the “bringing in” mechanism, that the parties are striving to achieve an equal
division of property. Not an easy task, considering that the preference share is devised in
seven of the ten agreements.
It is concluded that in all ten of the texts the basic requirements needed for the agreement to
comply with the essential elements of a family deceased division agreement were present, if
not implicit.
7.3.6
Natural elements
7.3.6.1 Introduction
Natural consequences derived from division agreements through practice and law.
The
following terms were utilised under the Nippur texts, namely the adoption clause (Nat 1),
bringing in (Nat 2), division by lots (Nat 3), no claim (Nat 6), an oath (Nat 7), a preference
portion (Nat 8) and witnesses (Nat 12).385
The gisbanšur/ zag-gú-lá síb-ta mu-nam-šeš-gal-šè clause reflected the privileged portion of
the eldest brother. The clause
banšur/ zag-gú-lá meant “a cultic table”; while síb-ta
gis
denoted an “additional share”. The gisšub-ba-ta in-ba-eš clause referred to a division by lots
where the parties agreed to the division. Owing to the presence of this clause, the divisions of
the different assets were more or less equal.
The gisšub-ba-ta in-ba-eš clause was present in most cases with the šeš-a-ne-ne-ra in-na-anbúr clause. The búr clause stated that one contractual party would pay in balance to his
brother/s.
385
See table 21 in the conclusions-section of this chapter to understand the logical flow of the natural
elements of Nippur.
262
7.3.6.2 Adoption/support (Nat 1)
The adoption clause was implemented only in one text, that is, N4. This clause is present in
the division of two deceased estates. There are anomalies present, namely two deceased
women’s
estates
were
divided
and
the
division
agreement
is
between
the
daughter/granddaughter and presumably her stepfather.386
In the adoption clause of text N4, Ur-Pabilsagga adopted Narubtum and both of them received
a house and slaves. Ur-Pabilsagga received a field and an additional (búr clause) slave.387
7.3.6.3 Bringing-in (Nat 2)388
Texts N3, N7, N9 and N10 contained no búr clause. Six of the ten texts consisted of one or
more “bringing in” clauses with different meanings. The majority were used to equalise the
values of the awarded assets. Examples in the Nippur texts are thus:
In N1, see the clause, which translated as “1 tray he paid in balance to his brothers”.389
The third brother, Anu-pî- Ilabrat, was not married at the time of his father’s death. For
purposes to remunerate him, for his ter atu
not received in the paternal estate, the
brothers agreed that he would not share in the responsibilities of the debt of the paternal
estate.
’Callaghan 19 4 141 refers to LH paragraph 166,390 where a division of the
paternal estate occurred between the beneficiaries and sons of the deceased. In a case
where a “minor” son had not taken a wife yet, the other brothers would set aside a portion
of money as a “purchase price” (ter atu ) in order to secure a wife for the minor son in
the future. In the text (lines 9-10), no money was set aside, although the third brother who
did not have a wife, would not be held responsible for the debts of the paternal estate.
This,
’Callaghan 19 4 141 considers a “practical procedure”. Other “bringing in”
clauses in N1 are: six silver shekels, by reason of the surplus of the house391 and the work
386
It seems that Ur-Pabilsagga is the husband who married the deceased after she was widowed or could be
the deceased’s brother; or even the son C -4: ú Ur-dPa-bil-sag-gá egir dam-a-na-ka).
387
See C3-4: ú Ur-dPa-bil-sag-gá egir dam-a-na-ka nam-ibila-ni-šú ba-da-an-ri-a.
388
Term búr.
389
šeš-a-ne-ne-ra in-na-an-búr - line 13.
390
Paragraph 166 translated by King (Avalon Project. Code of Hammurabi) http://avalon.law.yale.edu /
ancient/ hamframe.asp. Cited 26 January 2011: If a man take wives for his son, but take no wife for his minor
son, and if then he die: if the sons divide the estate, they shall set aside besides his portion the money for the
“purchase price” for the minor brother who had taken no wife as yet, and secured a wife for him.
391
Reverse, lines 1 -2 ù á-kúš-Ù é-a Ta-ri-bu-um-ke4 IAnu-pî-dIlabra-ra in-na-an-búr.
263
put in on the house, Tarîbum has paid in balance to Anu-pi-dIlabrat.392
In text, N2 there was a division of the inheritance, in order to move from communally
ownership to sole ownership.393 It is impossible to assess if this was a quid pro quo
division. In addition to a field, Ninib-rim-ili received a house, which was also valued.
In text N4, Ur-Pabilsagga and Narubtum received the divided portions of the deceased’s
estate in equal parts, because the búr clause was applied, where a field was brought into
the estate to equalise the value of the property for each party.
In N5 the búr clause was applied stating that the one contractual party took in addition to
his inheritance a certain asset, and that the contractual parties shall divide the estate into
equal parts.394
Text N6 states that one contractual party would pay the other.395
In text N8 there was no specific búr clause term, although there was an add-on of
property to equalise the division in lines 11-13: regarding the share of Namaršu-lumur
which includes “the edadi-ship of Enlil and Ninlil for 20 days annually (the custodianship)
of the Craftsmen’s gate for 1 1/2 days annually; because the temple offices were not
sufficient, the custodianship of the Duku gate for 1 days annually was added ”.
7.3.6.4 Division by lots/in good will (Nat 3)396
This clause occurred in eight of the ten texts (except in N3 and N6) of the Nippur family
deceased division agreements, their meanings follow:
In text N1, the parties stated that: they have divided by lot,
397
as well as in text N2: they
Reverse, line 13 šeš-a-ne-ne-ra in-na-an-búr - he paid in balance to his brothers.
[še-ga-ne-ne]-ta giššub-ba-ta in-ba-eš - division by lots.
394
in-na-an-búr – line B13: taken in addition to his inheritance and ni-ba-e-ne – line C2: they shall divide
into equal parts.
395
in-na-an-búr clause: dEn-lil-lù-shag-ge in-na-a[n-búr]: Col 2:22. (Ellil-lushag has paid him (búr
clause).
396
Terms: giššub-ba or išqu.
397
Reverse, line 13 gisšub-ba-ta in-ba-eš u4-kúr-šè lú-lú-ra.
392
393
264
have divided by lots.398 (Sumerian variant)
In N4, the parties concurred that they have divided into equal parts.399 Also in N5.400
(Both texts’ terms written with the Sumerian variant).
In N7, the contractual parties stated that with every share of a brother, when parties
mutually agreed to a division at the end of an agreement and again later in the text, they
mutually accepted the agreement as a division by lots.401 (Sumerian variant)
In N8, the parties mutually agreed to the casting of lots.402 (Sumerian variant)
N9 stated that according to the sealed tablet of the division (of inheritance), the items of
the contractual parties were divided equally by lot.403 (Sumerian variant)
In N10, the contractual parties concluded a division according to their agreement. Stone &
Owen (1991:87-89) should also have translated it as: they have divided the estate by
casting lots.404 (Sumerian variant)
7.3.6.5 No claim (Nat 6)405
In N2, N3, N6, N8 and N10 there were no claim clauses.
The claim clause occurred in the following texts:
In text N1, the contractual parties stated that: in the future one man against the other shall
not raise any claim.406
In N4, the text reflected the clause: in future neither shall have power to revoke this
šub-ba-ta in-ba-eš Line 22: [še-ga-ne-ne]-ta giššub-ba-ta in-ba-eš.
ur-a-sì-ga-bi in-ba-eš: C4 - have divided into equal parts.
400
ni-ba-e-ne – line C2.
401
N7 šu-ri-a-bi in-ba-e-eš and giššub-ba-ta in-ba-e-eš.
giš
šub-ba-ta in-ba-e-eš – line 46, šu-ri-a-bi in-ba-e-eš –lines 20 and 42 – with every share of a brother and
again when parties mutually agree to division at the end of the agreement in line 46 še-ga-ne-ne-ta – line 46
mutually agree.
402
They agree by lots: giššub-ba-ta in-ba-eš, line 0 inheritance up by casting lots…by heirs ibila).
403
kišib a-la-ba kišib sag-ta nì-nam ì-lí-a-wi-li ù nì-nam denzu-š˹-mi-ke4 téš-a síg-ga-bi in-ba-eš-a – C3
lines 16-19.
404
giš
šub-ba-ta in-ba-eš and še-ga-ne-ne-ta gišsub-ba-[ta in-ba]-eš: line 44.
405
Terms : inim nu-um-gá-gá-a or the variant šeš-a-ne-ne ba-ani-ib-ge4-ge4-ne.
406
Observe, lines 13-14 u4-kúr-šè lú-lú-ra inim nu-um-gá-gá-a.
398
giš
399
265
agreement.407
In N5, the contractual parties concurred that: in future neither shall have power to revoke
the agreement.408
In text N7 the contractual parties’ stated that” in future each will not make a claim against
the other.409
In text N9, the contractual parties also stated that: neither shall raise a claim against the
awarded portion of another contractual party.410
7.3.6.6 Oath in temple/oath (Nat 7411)
The normal set of oaths, usually found at the end of agreements, was reflected in the Nippur
texts, except in N6 (due to damaged text), N8 and N10. In the texts N1-N5, N7 and N9 the
oath clauses occurred with an oath sworn by the king, using the term: mu lugal-bi téš-bi-pàdè-eš.412
7.3.6.7 Preference portion (Nat 8)413
This term indicating a preference portion occurred in seven of the ten texts. In three texts,
namely in N3, N4 and N7, this clause was not present. In the other seven texts, the eldest
son’s extra or privileged portion was mentioned. In one of the seven, that is, in N8, the term
gišbanšur zaggulá was found, although the term síb-ta garzá a-na-me-bi occurred in line 5,
which translated as “the preference portion of whatever temple offices there are”. Examples in
the Nippur texts are thus:
In N1 zaggulá síb-ta mu-nam-šeš-gal-šè the preference portion of the eldest brother was
mentioned.
his portion is calculated by
’Callaghan (1954:137) to be one tenth of the
paternal estate.414
Column C, line 6 ŭ-kúr-šú lù-lù-ra nu-gí-gí-dé.
Colum D, line 1: ŭ-kúr-shú lù-ù-ra nu-gí-gí-dé.
409
Line 47: u4 kúr-šè lú-ù-ra inim nu-um-gá-gá-a.
410
Lines 11-13: u4 kúr-šè i-bi-den-líl ù dnanna-a-a nam-ibila ì-lí-a-wi-li-šè.
411
Term pàd.
412
The other set of oaths, which included ceremonial rituals, did not occur in the Larsa texts, but only in
three texts of Sippar, namely S20, S25 and S26.
413
Term gisbanšur.
414
Observe, lines 5, 8 and 9 mention – privileged portion - síb-ta-na. Observe 4: mu-nam-šeš-gal-šè -right
of primogeniture (zag-gú-lá síb-ta mu-nam-šeš-gal-šè) privileged portion by right of primogeniture and (dSînim-gur-ra-an-ni šeš-gal) of Sîn-imguranni, the oldest brother.
407
408
266
In N2, one zaggula bowl awarded to Ududu, son of the elder brother, as part of other
assets was mentioned. The text implicitly mention which assets were described in the line
giš
banšur zaggulá.415 The texts also implicitly mention which assets formed part of the
gišbanšur zaggulá award.
In N5 the term
giš
banšur zaggulá sib-ta, derived from the inheritance of the predeceased
father/grandfather of the contractual parties and implied that the eldest son received his
preference portion.416
Text N6 reads gišbanšur zaggulá sib-ta nam-šeš-gal-lá-šú: together with other clauses of
zaggula and in-na-an-búr. Translated together in context it meant that the eldest brother
received his preference share and that there was also a “bringing in”. Therefore, both
mechanisms came into play when the parties agreed to a division.417
Text N8 reflects
giš
banšur zaggulá, and the term síb-ta garzá a-na-me-bi, which
translates to: the eldest son receives a preference portion, and another preference portion
of whatever temple offices there are.418
Text N9 shows the terms
giš
banšur zaggulá síb-ta nam-šeš-gal-la-šè. When translated
this means that a preference portion is allotted to the eldest son and that all the above is
the inheritance portion of X, the eldest brother. There are two different preference
portions. The one portion regards the uncle, probably of the deceased’s younger brother;
and the other regards the son of the predeceased brother.419
Text N10 reflects the terms
giš
banšur zaggulá 1
giš
banšur zà-gu-la síb-ta nam-šeš-gal.
As in the other texts, this text also includes a preference share (ceremonial table) of the
eldest brother in line 11:1.
415
giš
416
giš
banšur zaggulá (zaggula bowl), Line 4: 1 gišbanšur zag-gu-lá gišliš.
banšur zag-gú-lá sib-ta nam-šeš-gal-lá-šú – line A3: one zaggula bowl: as the privilege of the elder
brother.
giš
banšur zag-gú-lá sib-ta nam-šeš-gal-lá-šú: Col 1:15-16 - 1 zaggula bowl the privilege of the elder
brother. X in-na-a[n-búr]: Col 2:22 - X has paid him (búr clause).
418
giš
banšur-zag-gu-lá, although the term síb-ta garzá a-na-me-bi: line 5 - the preference portion of
whatever temple offices there are.
419
síb-ta nam-šeš-gal-la-šè: C1 line 16 - (the above) from the portion allotted to the eldest son. And line 6:
ús-a-du síb-ta-na – line 8 of C2: (all the above being the inheritance) portion of Ibbi-Enlil the eldest brother.
417
267
7.3.6.8 Witnesses (Nat 12)420
In eight of the ten texts, it could be established that witnesses were recorded. Unfortunately,
in making the transcriptions some scholars tend to omit the witness clause. In six of the
agreements we could properly assess that the term igi was used, namely in N1, N2, N7-N10.
In text N3 and N4, it is unsure whether witnesses were recorded. In texts N5 and N6, we
could not assess what the clause looked like, however it is assumed that there is a witness
clause present on the clay tablet.
7.3.6.9 Summary
See table outline (infra) regarding a synoptic comparison of the different natural elements of
Old Babylonian Nippur.
420
Term igi or ma ar or in one Sippar text, pan.
268
Table 13 Outline of the natural elements of Nippur division agreements
NIPPUR
Division agreement of a deceased family member’s estate
Oral division agreement reflected in recording on tablet
Natural elements:
Legal tradition practices
”type of structure of house” e.g. double-storey house, patio
Nat 1
N4 (10)
Adoption/support
Nat 2
Six of the ten texts (60%)
Bringing in
However N3, N7, N9 and N10 contain no búr clause.
Nat 3
Occurs in eight of the ten texts (80%):
Division by
In text N1, N2, N7, N8, N9 & N10 divided by lot (Sumerian variant).
lots/in good will In N4, N5 divided into equal parts (Sumerian variant).
Nat 4
None
Heart is satisfied
Nat 5
None.
as much as there
is/from straw to
gold
Nat 6
The claim clause occurs in the following texts (50%): N1, N4, N5, N7 &
No claim
N9.
Nat 7
Oath in
temple/oath
Nat 8
Preference
portion
Nat 9
Shares: equal
clause
Nat 10
Trust (trustee)
Nat 11
Usufruct
Nat 12
Witnesses
The normal set of oaths, usually found at the end of agreements, is
reflected in the Nippur texts, except in N6 (due to damaged text), N8 and
N10 (70%).
This term indicating a preference portion occurs in seven of the ten texts
(70%).
None.
None.
None.
All of the texts.
In Old Babylonian Nippur, the family deceased division agreement was an arrangement by
beneficiaries to change from co-ownership to sole-ownership, by re-allocating and trading
their rights in the inherited deceased estate assets. Unique solutions were found in the said
agreements where deceased estate assets were divided into meticulous equal portions of sole
ownership. These solutions included the in-na-an-búr clause, balancing the value of each
deceased estate asset awarded to a beneficiary as a quid pro quo, in conjunction with the rule
269
of a preference-portion to the eldest brother (gišbanšur zaggulá síb-ta mu-nam-šeš-gal-šè),
and the casting of lots (giššub-ba-ta in-ba-eš). The terms usually encountered in other
agreements, with a few exceptions, generally occurred here, namely the clauses of no claim
(Nat 6), an oath (Nat 7) and witnesses (Nat 12). An anomaly was found in one text (N1)
containing an adoption clause.
The contractual parties reshuffled the estate assets through different mechanisms such as
barter, donation, and “bringing in” or selling the assets among each other, the aim being to
escape the problems of co-ownership and enjoy the fruits of sole ownership. The reasons and
mechanisms were unique to each contract; however, each division agreement set one or more
of these mechanisms in place. The status of the beneficiaries, and the obligations the
beneficiaries had towards the rest of the kinship group, formed the basis of the terms of the
agreement.
7.3.7
Incidental elements
7.3.7.1 Introduction
In this category, we find the uniqueness of different scribal practices, reflected in the written
division agreement; however, parties could choose to include them in their contracts, and they
did not form part of the basic requirements to qualify a contract as a division agreement.421
Under written formalities of division agreements, the following aspects are investigated,
namely: names of contractual parties, birth order, and description of assets (thorough
description, value), special legal terms, sanction clause (type), oath clause (king/god) and
witnesses (names, rank/family standing).
With the qualities of division texts, the following were emphasised, namely: language,
location of text, tablet’s condition, copies, date formulas, seal impressions and the rhythmic
sequence/special style.
421
See table 21 in the conclusions-section of this chapter to understand the logical flow of the incidental
elements of Nippur.
270
7.3.7.2 Written formalities of division agreements
(i) Names of contractual parties, rank
Outlines of the names in the Nippur texts are as follows:
In N1 three brothers: dSîn-imguranni (eldest), Tarîbum and Anu-pî-dIlabrat and their
deceased father, dSîn-îrish, were mentioned.
In N2 Ududu’s status was mentioned, however dNinib-rim-ili’s status was not mentioned.
In N3, the names Rim-Ištar and NinIB-nirgal were furnished, although regarding the
second brother, line 12 referred to “the inheritance portion of Rim Ištar, his brother”. Line
1 states “the sons of Lugal-azida”.
herefore, we could establish that the contractual
parties were brothers, and that they were the sons of Lugal-azida.
In N4, two estates of the deceased Migir-Ellil and Naramtum were mentioned. One was
the deceased maternal estate - the mother of Narubtum - while the other was the deceased
estate of the grandmother of the one beneficiary and contractual party, Narubtum. The
daughter, Narubtum, and Ur-Pabilsagga, a party unknown to the deceased, who now by
agreement adopted the co-party as his beneficiary, were mentioned.
In N5, Igi-shag, the son of the older deceased brother, and his uncle, Sin-išmeani, the
younger brother of the deceased were mentioned.
In N6, four brothers were named: the eldest brother Ur-Duazagga and the others: Ellil1ushag, Ur-DUN-PA-ea and Nannar-ara-mungin.
Regarding text N7, the names of the contractual parties were furnished without reference
to their status, although the statuses of the witnesses were mentioned.
he father’s name
was not mentioned.
In N8, the names of the brothers Ninurta-muštal, Namaršu-lumur and Muna-wirum and
their father Ibbi-Enlil were referenced. No status was mentioned.
271
In N9, the text was a recorded division agreement between the uncle and eldest brother Iliawili, and the children of Sin-šemi, nephews of Ili-awili, namely Ibbi-Enlil and Nannaaya.
In N10, the eldest brother Mannum-mešu-li u and his younger brother Munawiru were
mentioned.
(ii) Birth order of brothers
Sometimes the ranking order in the family was provided. This normally occurred in texts for
a reason, for example in the instance of the named gišbanšur zaggula clause, where the
oldest son received a preference portion of the deceased parent’s estate. In the ten Nippur
texts the presence or absences of the birth rankings were thus:
In N1,dSîn-imguranni was the eldest brother as shown in lines 4 and 14.422
In N2, there was an uncertain family relationship.
division of the estate assets were equal.
In text N3, no birth order was mentioned and no preference portions were allotted. The
In N4 there was no need for a birth order, because there was only one child, the daughter,
and she, together with her stepfather as her adopted father, were contractual parties to the
agreement.
predeceased father/grandfather of the contractual parties.
In N5, reference was made to a zaggula bowl, derived from the inheritance of the
In N6, the text referred to a zaggula bowl which meant “the privilege of the elder
brother”.
Text N7 mentioned the eldest son in line 23, although there was no preference portion
clause.
Text N8 referred to the preference portion of Ninurta-muštal, thus implying that he was
the eldest son. In other Nippur texts, the eldest son received the preference portion. In this
text, no reference was made to such a gišbanšur-zag-gu-lá. See only the reference (line 5)
to síb-ta garzá a-na-me-bi.
422
(zag-gú-lá síb-ta mu-nam-šeš-gal-šè) (is the) privileged portion by right of primogeniture and (dSîn-imgur-ra-an-ni šeš-gal) of Sîn-imguranni, the oldest brother.
272
In N9, a birth order was implied. See síb-ta nam-šeš-gal-la-šè – line C1, 16, which
translated as “ the above from the portion allotted to the eldest son”.
In N10, there was a birth order in the text which reflected as 1
giš
banšur zaggulá síb-ta
nam-šeš-gal, and translated to: the preference portion of the eldest son.
(iii) Description of assets: thorough description, value
In the texts, the description of the assets differed, depending on the scribal traditions. In one
instance, the property’s description was not reflected in the text. In other texts, only the more
valuable items were referred to as divided, such as immovable property and slaves.
Depending on the scribal tradition, the following outline of the property, goods and
specifically immovable property were reflected which included: the description, extent and
boundaries of the unit: the description of the beacons marking the unit: the position of, or in
relation to the unit; and, any servitude present. Examples in the Nippur texts are thus:
In N1, a detailed description and measurements of assets referring to neighbouring
properties and natural boundaries were included. The exact amount was in iku, ubu and
sar.
In N2 only an elementary description was given. For instance, reference was made to the
type of office, but without a time-period. In terms of the fields, no description in situ or
measures were mentioned, but the purpose of the fields was given. Movable property
referred to the type of movables, for example, a male slave, two beds and two chairs.
In N3 the houses were well described, which included: the description of the house
(old/new built), the extent of the unit (one sar), and the boundaries of the unit regarding
its position (e.g. one side adjoining the house of X). Money was mentioned by supplying
the amount, for example, seven shekels.
In N4, the description of the unit, extent of the unit, boundaries of the unit, position on or
in relation to the unit were present, for example: 40 sar of upland garden, which slopes
down into the marsh in front of it, the side of the garden adjoining Ellitum; 1/3 sar 5 gin
of built house, on one side adjoining the house of Babbar and Enlil. Description of
273
movables: e.g. name and type of slave: Ali-a usha, the maid-slave.
In N5, the property was specified, provided measurements and descriptions of where the
property was situated, regarding the inheritance of the predeceased father and not the
deceased brother’s estate. According to Poebel, it seems that houses were “mechanically
dissected into as many pieces of equal size, as, it seems, was desirable”
1909:25).
ilprecht
He remarks in a footnote (Hilprecht 1909:26 fn. 1) that the structure of the
Babylonian house consisted of sun-dried bricks, with a roof constructed of beams, and
was easily assembled; boundary walls between the houses could be erected.
The
description of the boundaries of the unit, was provided, for example, two sar of built
house, on one side adjoining the house of Igi-shag, from which one goes out by one
(common) exit; 3 acres of dabta land, on one side adjoining the house of the son of Sallû;
typical Nippur priesthood description, for example: the office of a priest of Enlil for six
months per year and its 36 acres of field for livelihood; description of money: 6 shekels of
silver.
N6 provided: A description of the unit, the extent of the unit, its boundaries, its position
on or in relation to a unit, for example: ½ gan of “great reed” field as equivalent to the
built house, lengthwise adjoining Elali, his uncle. Or of movable property, e.g.: Ištarna rari, the female slave, her value in money is 11 shekels.
In text N7, there were different assets in the division of the estate: immovable and
movable properties (although no slaves), and custodianship. With the immovable
properties the measurements in value and location were provided, for example, a 11/3-sar
house plot next to the house of X, its exit to the street, a 3-sar plot of unimproved
residential property next to the house of Muni-kiengi. Regarding the movable property,
the property was mentioned and sometimes a short indication of the location in situ was
provided, for example, 1 door of small boards in the courtyard; 2 wagon wheels. With
respect to custodianship, the place or object of the custodianship and the number of days
were stated, for example, the custodianship of the Usida-gate for 221/2 days annually.
In N8, the assets were described in much detail: edadi-ship – type and days, for example,
the custodianship of the Craftsmen’s gate for 1 1/2 days annually; the custodianship of the
274
Duku gate for 12 days annually.
In text N9, different assets were mentioned and described in accordance with their type.
Regarding the house, the surface measures and vicinity of the person’s property were
provided, for example, ½ sar 6 gin of a house plot next to that of his brother; ½ iku 22
sar of a field plot (in the) Uzza (irrigation district) adjacent to that of his brother; ½ iku 30
sar of a field plot (in the) Girtabale canal (irrigation district). Regarding custodianship, the
type of custodianship and the period that the position was held were mentioned, for
example, the custodianship of the Ningagia gate for six days annually.
Text N10, like the other text provided a full and proper description of the different assets,
which consisted of custodianship, a house property and a house plot: The house property
was not described, but its measurements were given. The house plot was described in
situ, and its value was given. With custodianship, the text mentioned the type and duration
of the official occupancy.
(iv) Special legal terms
Particular phrases are unique to the agreement and make it easy for a reader of cuneiform
texts to identify the agreement from other texts. In Nippur, the particular phrases in the texts
are thus:
In N1 the following special legal terms were present:
Reverse 12: še-ga-ne-ne-ta - in mutual agreement.
Observe 14, 22, Reverse 8: a-la-la - the inheritance portion of X.
Observe 13, Reverse 2: búr - in balance.
Observe 4: mu-nam-šeš-gal-šè - right of primogeniture (first-born share).
In N2 special legal terms that are mentioned are:
Line 4: I gišbanšur-zag-gu-lá - one zaggula bowl.
Lines 7, 21: a-la-ba - portion of X.
Line 22: še-ga-ne-ne-ta - (by mutual agreement) they have divided from the possession.
Line 22: giššub-ba-ta in-ba-eš - (division by lots) not translated by Chiera (1922).
275
Line 23: mu lugal-bi in-pá igi - (before) witnesses.
In N3 the following special legal terms were present:
Lines 6, 12: a-la-ba - inheritance portion.
Line 15: še-ga-ne-ne-ta in-ba-eš - by mutual agreement they have divided.
Line 16: mu lugal-bi in-pá(d)-dé-eš - by the name of the king they have sworn.
In N4 the special legal terms applicable are:
Lines A8 & B9: a-la-ba - inheritance portion (before each a separation line)s
Line B: ki-búr-ru - (additional) payment for X.
Line C4 ur-a-sì-ga-bi in-ba-eš - have divided into equal parts.
Lines C3-4 ú Ur-dPa-bil-sag-gá egir dam-a-na-ka nam-ibila-ni-shú ba-da-an-ri-a - and
Ur-Pabilsagga, whom he has adopted as beneficiary, after the death of his wife.
In N5 the special legal terms present are:
Line A3:
giš
banšur zag-gú-lá sib-ta nam-šeš-gal-lá-šú - one zaggula bowl as the
privilege of the elder brother.
Line B13: a-la-ba –in-na-an-búr - taken in addition to his inheritance.
Line C2: ni-ba-e-ne - they shall divide into equal parts.
Line D1: ŭ-kúr-šú lù-ù-ra nu-gí-gí-dé - in future neither shall have power to revoke the
agreement.
Line D2: še-ga-ne-ne-ta - mutually agree.
Line D2: mu lugal-bi in-pá(d)-dé-eš - mutually they have sworn by the name of the king.
In N6 the following special legal terms occur in the text:
Column 1 lines 15-16: 1
giš
banšur zag-gú-lá sib-ta mu-nam-šeš-gal-la-šú - zaggula
bowl as the privilege of the elder brother.
Column 2 lines 17 & 25: a-la-ba - inheritance of X.
Column 2 line 22: dEn-lil-lù-shag-ge in-na-a[n-búr] - Ellil-lushag has paid him (búr
clause).
In N7 the special legal terms are:
Line 47: u4 kúr-šè lú-ù-ra inim nu-um-gá-gá-a - in future each will not make a claim
276
against the other.
Line 48: mu lugal-bi téš-bi-pà-dè-eš - they have sworn in the name of the king.
Lines 20 & 42:
giš
šub-ba-ta in-ba-e-eš, šu-ri-a-bi in-ba-e-eš - with every share of a
brother and again when parties mutually agree to division at the end of the agreement in
Line 46: še-ga-ne-ne-ta - mutually agree to.
Lines 23 & 45: a-la-ba - after the division of assets with each brother.
In N8 the special legal terms are:
Line 5: síb-ta garzá a-na-me-bi - the preference portion of whatever temple offices there
are.
Lines 8,14, 18:
a-la-ba - inheritance share of X.
Line 10: ibila [ib]-ni den-líl-ke4-ne - beneficiaries of Ibbi-Enlil.
Line 20: še-ga-ne-ne-ta - mutual agreement.
Line 20: gišsub-ba-ta in-ba-e-eš - and have divided (the inheritance) up, by casting of
lots.
Last section of text: igi - before (witnesses).
In N9 the following special legal terms occur in the text:
Line 6: síb-ta nam-šeš-gal-la-šè - (the above) form the portion allotted to the eldest son.
Line 8 of C2: ús-a-du síb-ta-na - (all the above being the inheritance) portion X.
C2, line 10: a-la-ba - inheritance portion of X.
C3, line 6 and line 10: ibila X šeš ad-da-ne-ne; a-la-ba in-ne-en-ba u4 kúr-šè i-bi-denlíl ù dnanna-a-a and C3 7-8 nam-ibila - beneficiary of X.
C3, line 15: mu lugal-bi in-pà-dè-eš - in the name of the king they swore.
C3, lines 16-19: kišib a-la-ba kišib sag-ta nì-nam ì-lí-a-wi-li ù nì-nam denzu-š˹-mi-ke4
téš-a síg-ga-bi in-ba-eš-a - according to the sealed tablet of the division (of inheritance),
the items of Ili-awili and the items of Sin-šemi will be divided equally by lot.
C3, line 19: téš-a síg-ga-bi in-ba-eš-a - will be divided equally by lot.
In N10 the special legal terms applicable are:
Line 11:
giš
banšur zà-gu-la síb-ta nam-šeš-gal - ceremonial table is the preference
portion of the eldest brother.
Lines 27 & 42: a-la-ba - inheritance share of X.
Line 43: ibila dnuska-á- a -ke4-ne - beneficiaries of X.
277
Line 44: še-ga-ne-ne-ta
giš
sub-ba-ta in-ba-eš - divided according to their agreement and
they have divided up by casting lots.
Line 44: še-ga-ne-ne-ta - they agreed to the agreement.
(v) Oath clause (king/god)
In text N6, no oath clause was present, due to the text damaged. Texts N8 and N10 no oath
clause is mentioned. The rest of the texts indicate that the parties swore an oath in the name
of the king.
(vi) Witnesses names, rank/family standing
N1, N7, N8, N9 and N10 noted witnesses with their statuses. The last two witnesses were the
dub-sar, the scribe; and, the bur-gal, the seal engraver. The texts regarding witnesses were
as follows:
In N1, there were eight witnesses present. The scribe (dub-sar) and seal engraver (burgul) were also witnesses and were mentioned last (see also texts N9 and N10). In this
text, the seals of the contractual parties were especially made for this agreement. The
witness’s status was given, for example, son of X.
In N2 the text was damaged; however there were witnesses present, with a list of their
priest-offices.
made available with the transcription.
could not be verified.
dub-sar was mentioned. In N8, a soldier as witness was mentioned.
In N3, N4 and N5 there were witnesses present; however the list was unfortunately not
In N6, it seems that there were witnesses present; however the text was damaged so this
In N7 and N8, there were six witnesses and their statuses were mentioned. At the end the
In N9 there were more or less eight witnesses present (text damaged) with their statuses
mentioned, including a dub-sar and bur-gul at the end of the witness list. Also included
is a overseer (ugula) as witness.
In N10 there were five witnesses mentioned with their statuses, including a dub-sar and
bur-gul at the end of the witness list.
278
7.3.7.3 Qualities of cuneiform division texts
(i) Language
The language in texts N1-N9 is Sumerian whereas in text N10 also Sumerian, with some parts
in Akkadian.
(ii) Location
All the texts originated from Nippur.
(iii)
ablet’s condition
The conditions of the Nippur tablets are thus:
Tablet N1 is in good condition and complete and although it is slightly damaged, the
damaged part is still easily readable. The measurements are 10.7 inches in length and 5.2
inches wide. The signs are neatly incised in the clay.
N2 is not in a good condition, slightly damaged on the observe side and damaged on
several lines on the reverse side of the tablet. The measurements are 12.2 inches in length
x 5.8 inches in width x 2.8 inches thickness of an unbaked tablet.
N3 is a well-preserved slightly baked, blackish grey cuneiform tablet; 9.35 inches x 4.8
inches x 3 inches.
With respect to N4, the tablet is baked and reddish brown with darker spots; 10.4 inches x
5.9 inches x 3 inches with seal impressions. It is in a fair condition, except for the obverse
side at the end of the tablet where there is some damage.
With N5, the left edge of the obverse side is, according to Poebel, either “pressed or
scratched”, while the rest is well preserved. It is lightly baked and blackish brown. There
are seal impressions, that is, BEF collection 7016 from Nippur, on the tablet.
279
Regarding N6, the tablet is fragmented and unbaked with seal impressions; 17 inches x
8.5 inches x 4.35 inches.
N7, N8 and N9 are in a good condition, while N10 is not. N10 is damaged and therefore
large sections of the text are destroyed.
(iv) Number of copies (agreements)
All of the ten Nippur recorded family deceased division agreements revealed only one copy
for the whole recording of the agreement, although N6 seems to be a recorded transaction
reflecting only one brother’s share, while Hilprecht (1909:23) refers to this text as a “division
of an inheritance among four brothers”.
(v) Date formula
The date formulas in the Nippur texts are thus:
In N1 the document was dated with the month and year of the king’s reign. According to
’Callaghan 19 4 1 9 , this adds up to the 6th year of Rîm-Sîn.
In N2 no translation of the date formula was provided. he researcher’s translation is: in
the year, after the year in which Damiq-ilīšu built for Utu, his beloved house/temple
named ‘Judge of Land’. Thus, it is dated in Damiq-ilīšu’s 9th regal year.
d
423
di-ku5-kalam-ma é ki-ag2-ga-ni utu-ra mu-dù-a.
u uś-sa é-
Sigrist (1988:40) translated as
“year after the year in which Damiq-ilīšu built for Utu, his beloved temple called
Edikukalamma / ouse judge of the land”.
In N3 there was a date formula, although it was not transcribed or translated.
In N4 the text was written during the reign of Samsu-iluna, 4th year and 10 months
(Hilprecht: 1909:20). Date formula was not included in text’s transcription.
423
(Old Babylonian Date Formulae) http://cdli.ucla.edu/wiki/doku.php/damiq-ilishu. Cited 2 February 2012.
280
In N5, the text was recorded during the reign of king Samsu-iluna in his 13th year and 12th
month (Hilprecht 1909:150). Unfortunately the date formula was not published together
with the transcription and text translation.
In N6, The date of the tablet: reign of Samsu-iluna in his 6th year and 6th month (Hilprecht
1909:23-24).The date formula was not published, together with the transcription and
translation of the tablet.
N7 contained a date formula; however Stone & Owen (1991:56-59) did not translate it.
The researcher translation is: in the month of the process of grain. The term še-gur10-ku5
was unknown in the calendar, however see discussion of Cohen (1993:123) regarding the
terms še and ku5 and possible meaning as “to process grain”. Furthermore see: lines 5557: mu den-zu-i-qi-ša-am lugal ala
guškin ala
kù-babbar dutu-ra mu-un-na-an-
ku4. These lines were also not translated. The translation by the researcher is: in the year
king Sîn-iqīšam brought into the temple of ṣamaš statues in silver and in gold. Thus, it
was the 3th year of Sîn-iqišam. mu den-zu-i-qíša-am bàd gal larsaki-ma ba-dù11 alan kùbabbar 1 alan kù-sig17 é-dutu-šè i-ni-in-ku4-re. Translation by the CDLI- website is:
“Year Sîn-iqišam built the great city wall of Larsa and brought into the temple of ṣamaš
eleven statues in silver and one in gold”.424
Sigrist (1990:28-29) reflected the 3th
yearname of the 3th reign of Sîn-iqišam as follows “Year he had the great wall of Larsa
built and had 11 statutes of silver and 1 statue of gold brought in the temple of ṣamaš”.
In N8 Stone & Owen (1991:65-67) did not translate the date formula. he researcher’s
translation is: in the month of the ab-è festival, 25th day; in the year the king Rīm-Sîn in
which Ninma raised greatly in the Kiš temple, the foundation of heaven and earth.
Regarding the month formula, see the discussion by Cohen (1993:117-118) of the ab-è
festival at Nippur. The transcription of the year name was as follows: mu ri-im-den-zu
lugal-e dnin- a -e é-kèški temen an-ki-bi-da-ta. he researcher’s translation is: in the
year the king Rīm-Sîn in which Ninma raised greatly in the Kiš temple, the foundation of
heaven and earth. Thus, this is from the reign of King Rīm-Sîn II, his 3rd year (Larsa). See
also the CDLI website’s transcription and translation mu dnin-mah-e é keški temen an
ki-bi-da-ta nam-lugal kala
kiš gél-la-šè gal-bi-ta ba-an-íl-la lí kúr lú hul-gál kur-
424
(Old Babylonian Date Formulae) http://cdli.ucla.edu/tools/yearnames/HTML/T10K10.htm Cited 2
February 2012.
281
kur-šè gaba-bi nu gi4-a. “Year in which Ninma raised greatly in the Kiš temple, the
foundation of heaven and earth, Rīm-Sîn) to kingship over the land, (king) having no
enemy, no hostile (king), opposing him in all foreign lands”.425 See also Sigrist (1990:62):
“Year Nima elevated Rīm-S n to the kingship over all”.
In N9, there was a date formula, although the text was damaged.426 The date-clause was
not translated by Stone & Owen (1991). Some part of the decipherable text is translated
by the researcher as follows:
Regarding the month formula: in the month when
lamps/braziers were lit. See discussion by Cohen (1993:100-104). Regarding the year
name: in the year of king Samsu-iluna. (following some omitted text transcription).
N10 contained a date formula.427 This date formula was not translated by Stone & Owen
(1991) and some of the text was omitted due to tablet damage. The translation by the
researcher is: in the month Sim nu, in the year of king Samsu-iluna (following some
omitted text transcription). See discussion by Cohen (1993:314-315) regarding the month
date.
(vi) Seal impressions
The seal impressions in the Nippur texts were thus:
In text N1 seals were especially made for this agreement; the seal impression was located
before the ala lines. For this occasion the seal was engraved with the names of all three
brothers that were present.
--- -------- SEAL ---------1 Sîn-imguranni
2 Tarîbum
3 Anu-pî-dIlabrat
4 the sons of dSîn- riš
As regards to N2, N3, N, N5 and N6, the translaters mentioned a seal, although it was not
425
(Old Babylonian Date Formulae) http://cdli.ucla.edu/tools/yearnames/HTML/T10K10.htm Cited 2
February 2012.
426
[iti] ne-ne-gar [mu sa]-am-su-i-lu-na lugal [ ]x.
427
iti sig4-a mu sa-am-su-[i-lu-na lugal] á-kal uš-r[a ].
282
included in the transcription and translation.
In N7 the seals stated the beneficiaries’ ibila) names.428
In N8, the seal also referred to the ibila, beneficiaries. 429
In text, N9 there was also a seal mentioning the ibila, beneficiaries.430
In N10 the beneficiaries’ names and statuses sons of were engraved on the seal431
(vii) Rhythmic sequence: essential elements E1-5, and natural elements N1-N12
In six of the ten agreements, the deceased father and brothers appeared in the texts as
contractual parties. Regarding the sequences above, the elements reflected in the text were
thus (see Appendix G):432
Nippur seq E.1- Estate owner: deceased father (DF), contractual party: brothers (B). See
texts N7 (Sin-iqišham , N1 Rīm-ṣin I , N8 Rīm-ṣin II , N
Samsu-iluna ), N6 (Samsu-
iluna ), N10 (Samsu-iluna )
Nippur seq E.4 - Complex family relationships – combination of 1-3. The complex family
relationships were as follows: namely N2 (Damiq-ilīšu as DF B; N5 (Samsu-iluna ) as
DF,DGF:U,N; N9 (Samsu-iluna ) as DF:B,N,U and N4 (undated) as DM,DGM:SF,D.
The natural elements of Nippur followed different sequences in each text. The predominant
elements in certain Nippur texts were: Nat 2 “bringing in”; Nat 3 division by lots; Nat 7 an
oath and Nat 12 witnesses.
All the texts except N3, N6, N7, N8, N10, had Nat , ,7,1
428
d
429
d
Nat
“bringing in”; Nat 3
nanna-me-ša4 ad-da-kal-la ibila lú-dba-ú.
nin-urta-mu-uš-ta-al na-ma-ar-šu-lu-mu-ur mu-na-wi-ru-[um] ibila-šu.
430
i-bi-den-líl dnanna-a-a ibila denzu-i-qí-ša-am.
431
ma-an-nu-um-me-šu-li-ṣur dumu a-wi-li-ya mu-na-wi-[ru-um] dumu dnuska-[á-ma ].
432
Abbreviations: B brother, CP contractual party, DO deceased owner, F father, M mother, N nephew, P
priestess, PB predeceased brother, S son, U uncle.
283
division by lots; Nat 7 oath; Nat 12 witnesses). The element occurred in the following texts:
N1,N2,N4,N5,and N9.
Nippur seq Nat 1 : 2,3,6,7,8,12: (Nat 2 “bringing in”; Nat 3 divided by lots; Nat 6 no claim;
Nat 7 oath; Nat 8 preference portion; Nat 12 witnesses) and occurred in the texts N2 and N5.
Nippur seq Nat:2 different sequences : Predominately : 2,3,7,and 12
(Nat 2 “bringing in”; Nat 3 division by lots; Nat 7 oath; Nat 12 witnesses and predominately
the elements Nat 6 no claim & Nat 8 preference portion). The elements occurred in the texts:
N1 (Nat 2,3,6,7,8,12); N3 (Nat 7,12); N4 (Nat 1,2,3,6,7,12); N6 (Nat 2,8,12) ; N7 (Nat
3,6,7,12); N8 (Nat 2,3,8,12); N9 (Nat 3,6,7,8,12) and N10 (Nat 3,8,12).
7.3.7.4 Summary
See table outline (infra) regarding a synoptic comparison of the different incidental elements
of Old Babylonian Nippur.
284
Table 14 Outline of the incidental elements of Nippur division agreements
NIPPUR
Division agreement of a deceased family member’s estate
Recorded division agreement
Incidental elements:
“exterior and interior decorations” of the “house”
e.g. paint colour combinations, type of windows and doors,
floor tiles, carpets, house lights
Written formalities of agreements
I1
The names of the contractual parties were mentioned in all of the ten
Names of
texts.
contractual
parties, rank
I2
Birth order of
brothers
I3
Description of
awards/assets
Birth order ranking was prominent. This scribal school style normally
occurred in the instance of the said gišbanšur zag-gu-lá clause, where the
oldest son received a preference portion of the deceased parent’s estate.
Birth order was evident in seven of the ten Nippur texts.
Detailed descriptions and measurements of assets referring to
neighbouring properties and natural boundaries were included and
detailed descriptions of movable properties.
I4
Special legal
terms
še-ga-ne-ne-ta - by mutual agreement
še-ga-ne-ne-ta in-ba-eš - by mutual agreement they have divided.
a-la-la - inheritance portion of X.
nam-ibila - beneficiary of X.
giš
banšur-zag-gu-lá - zaggula bowl.
ús-a-du síb-ta-na – (all the above being the inheritance) portion of X.
ur-a-sì-ga-bi in-ba-eš - have divided into equal parts.
ki-búr-ru - (additional) payment for.
búr - in balance; mu-nam-šeš-gal-šè - right of primogeniture
giš
šub-ba-ta in-ba-eš – (division by lots)
mu lugal-bi in-pá – they have sworn by the king.
ŭ-kúr-šú lù-ù-ra nu-gí-gí-dé: in the future neither shall have power to
revoke the agreement.
ni-ba-e-ne: they shall divide into equal parts.
síb-ta garzá a-na-me-bi: the preference portion of whatever temple.
offices there are; ibila: the beneficiaries (heirs) of X.
I5
Oath clause
(king/god)
Oath clause in seven of the ten texts. The parties sworn an oath in the
name of the king.
I6
Witnesses
names,
rank/family
standing
In N1, N7, N8, N9 and N10 there were witnesses and their statuses were
mentioned. The last two witnesses were the dub-sar, the scribe; and, the
bur-gal, the seal engraver. In text N1 the scribe and seal engraver were
also witnesses and were mentioned last in the list of witnesses. In N2
priests were as witnesses mentioned. In N8, a soldier and in N9 a
overseer were present as witnesses.
285
Qualities of texts
I 7 Language
The language is Sumerian in texts N1 – 9 whereas in text N10 it is
Sumerian with some parts in Akkadian.
I 8 Location
Nippur
I 9 ablet’s
condition
The majority of the texts were in a good condition.
I 10 Number of
copies
Reflected only one copy of the completely recording of the agreement.
I 11 Date
formula
The date formula occurred in all ten of the Nippur texts
I 12 Seals
impressions
Seal impressions were pressed on all of the clay tablets and in text N1
seals were specially made for the agreement.
I 13 Rhythm
sequence/special
style reflecting
scribal school
traditions
See Appendix G.
In all ten of the Nippur texts, the names of the contractual parties were revealed.
In Nippur, the birth order ranking was prominent. This scribal school style normally occurred
in the instance of the said gišbanšur zag-gu-lá clause, where the oldest son received a
preference portion of the deceased parent’s estate. Birth order was evident in seven of the ten
Nippur texts.
In Nippur texts, detailed descriptions and measurements of assets referring to neighbouring
properties and natural boundaries were included. Money was described by stipulating the
amount; and movables described regarding their type: e.g. name and type of slave.
The main special legal terms were še-ga-ne-ne-ta - in mutual agreement;
a-la-la - the
inheritance portion of; búr - in balance; mu-nam-šeš-gal-šè - right of first-born share; mu
lugal-bi in-pá - they have sworn an oath; ŭ-kúr-šú lù-ù-ra nu-gí-gí-dé: in future neither
shall have power to revoke the agreement; ni-ba-e-ne: they shall divide into equal parts; síbta garzá a-na-me-bi: the preference portion of whatever temple offices there were; and ibila:
the beneficiaries (heirs) of X.
286
There was an oath clause in seven of the ten texts. The parties sworn an oath in the name of
the king.
In N1, N7, N8, N9 and N10 witnesses were present, and their statuses were mentioned. The
last two witnesses were the dub-sar, the scribe; and the bur-gal, the seal engraver. In text N1
the scribe and seal engraver were also witnesses, and were mentioned last (See also texts N9
and N10). Other professions mentioned were a soldier, an overseer and priests.
The language was Sumerian in texts N1 – 9 whereas in text N10, Sumerian with some parts in
Akkadian.
The majority of the texts were in a good condition.
In all ten Nippur recorded family deceased division agreements, only one copy reflected the
complete recording of the agreement.
The date formula occurred in all ten of the Nippur texts.
Seal impressions were pressed on all of the clay tablets, and in text N1 seals were especially
made for the agreement.
The scribal tradition illustrated the reason for Nippur’s reputation as “a town of academics, a
Mesopotamian Oxford or Cambridge” with snobbery attached to the use of Sumerian as the
predominant written language (Leick 2001:143). The division agreement recordings were
neatly written by scribes, and included in the document were predominantly the names,
statuses of the parties, their birth order, a careful lengthy description of the assets, elaborate
special legal terms, and the majority of the texts included the presence of a sanction, an oath
clause, witnesses, seals, and in some texts a date formula.
287
7.4 SIPPAR: COMPARISON OF TERMS IN DIVISION AGREEMENTS
7.4.1
Introduction
In the past scholars considered Sippar as a town surrounded by several areas/suburbs, and
these suburbs were indicated by a predicate such as Sippar-rabûm, Sippar ša
nnunītum,
Sippar ša ṣamaš, Sippar- rim, Sippar-dūrim, Sippar Ja rurum, Sippar mn num.433 Charpin
solved the problem of the different confusing predicates by grouping all the names
chronologically. These different Sippars only changed their names during the Old Babylonian
period. Two tells were identified, namely Tell ed-D r and
consists of Sippar-rabûm, Sippar ša
nnunītum, Sippar
ell
bu
abba.
ell ed-D r
mn num and Sippar-dūrim. Tell
bu abba consists of Sippar ša ṣamaš, Sippar Ja rurum, Sippar- rim Goddeeris 00
.
Some notes on the archaeological-, residential and geographical-, as well as institutional
backgrounds are given of this city-state. Following with a content analysis and comparison
study of the different elements-categories of Old Babylonian Sippar’s division texts.
7.4.2
Archaeological background
The two tells, Tell Abu Habba and Tell ed-D r, were from the second half of the 19th century
intensively excavated. These two tells formed the twin city of Sippar (Goddeeris 2002:34).
Thousands of cuneiform tablets were unearthed, although some were unfortunately crumbled
or badly damaged, reason being: scribes baked the tablets in ovens instead of, as Bertman
00
0 ironically put it, “relied” on ṣamaš to dry them.
Scheil excavated Tell Abu Habba in 1894 on behalf of the Ottoman government (Goddeeris
00
7 . he Iraqi’s in 1941, excavated for one season at Tell ed-D r.
Belgian team has
done some investigations of the remains of Tell ed-D r between 1970 and 1989. he wellSee arris’ 197 10-14) discussions. The following articles of Harris provide insight in the lives, social
background, family relationships, business transactions of the nadītum priestesses, including some references to
other types of priestesses from Sippar. Harris (1961) outlines the nadītum, and their rights in the so named LH.
Harris (1962) presents some bibliographical notes of some of the nadītum priestesses, Harris
(1961,1963,1964,1968,1969) discusses the nadītum women in general and gives a general overview of the
organisation and administration of the cloister. Some general notes on kinship and inheritance is given by Harris
(1976), in addition to notes on slave names in Harris (1977). Harris (1989) gives an overview article on the
named independent women in ancient Mesopotamia, with some responses from other scholars.
433
288
known archive of Ur-Utu was excavated by them (Goddeeris 2002:38). Some excavations
were done in the 1970’s by Iraqi archaeologists at Tell Abu Habba (Goddeeris 2002:39).
Harris collected material from Sippar, and this mainly contributed to her book “Ancient
Sippar” in 1975. She summarised the information with some individual problems, which she
address in various academic journal articles (Goddeeris 2002:40).
According to Greengus (2001:257), the volumes by Dekiere434 regarding texts in Part C of
this thesis, are part of the Mesopotamian History, and Environment publication projects of the
University of Gent, and consist of six volumes. These volumes are part of an excavation at
ancient Sippar- mn num, situated close to ell bu abbah.
7.4.3
Residence and geographical background
Harris (1975:1) opines that the history of the pre-Old Babylonian era still wait for further
study, however what we know is that the earlier part of the Old Babylonian period, commonly
refer to as the Isin-Larsa period, were “marked by unrest”. When King
ammu-r pi, an
Amorite ruler came in power, Babylon and other city-states thrive, and under his rule the
provincial cities were reunited and “effectively controlled” by the city-state Babylon (Harris
1975:1).
ammu-r pi even called himself the “organizer of Sippar”
arris 197 7 .
Sippar was divided into two cities and is sometimes referred to as the twin cities. One is
called Sippar and the other, close by, Sippar- mn num today
inhabitants worshipped the goddess
nnunitum.
Sippar
ell ed-Der), where the
mn num is known for the
discovery of two thousand cuneiform tablets from the house of the goddess’s chief singer of
dirges, named Ur-Utu. The building was destroyed by fire: the heat baked the tablets and so
preserved them (Bertman 2003:30).
Sippar, the other twin city, was known for the worship of the sun god Utu, so named in
Sumerian and in Akkadian, the god is named ṣamaš. Still, Sippar differed from other citystates for there were a number of towns and settlements “forming a city agglomeration” with
Sippar the “central and principal city”
arris 197 10 .
Greengus (2001:257- 67 discusses Dekiere’s 1994a,1994b & 1995) six volumes, the old Babylonian
calendar Sippar calendar, and refers to new evidence on the local month names and places in the yearly calendar,
which suggests that they are equivalent with those of Nippur.
434
289
7.4.4
Institutional background
The sun god ṣamaš, and his spouse Aia was the main cult centre in Sippar.
The nadītum, a certain priestess group, and other priestesses played an important role in the
legal documents and a great part of the Old Babylonian documents from Sippar, were mainly
limited to wealthy family members of the nadītum and other priestesses classes (Goddeeris
2002:40-42).
he “White emple” was a beautiful building; and it was linked to the gagûm
of the priestesses of ṣamaš.
he nadītum women of ṣamaš were actively involved in a
variety of business transactions (Harris 1975:3). Even one of the kings, King Sîn-muballi ’s
daughter was a nadītum who lived in the cloister in Sippar (Harris 1975:7; Tanret 2010:234236). The priestesses groups were in a unique position in Old Babylonian society. They were
part of the temple, and to a certain extent, part of the more economic advantages of society
(Tanret 2010:227).
7.4.5
Essential elements
7.4.5.1 Introduction
The essential elements (basic requirements) must be present for an agreement to be
categorised as a division agreement. In the Sippar texts N1-26, Part C, these elements were
present in the division agreements, either implicitly by means of specific terms, or in some
instances, a conclusion could be drawn indirectly from the context of the agreement.435
7.4.5.2 Family connection of contractual parties/co-owners
The division agreement must be an agreement between family members. In most of the Sippar
texts, the brothers were contractual parties. There were, however, also a few sisters, in their
status as different types of priestesses, mentioned as contractual parties. The family
connection outline is thus:
S1 was a division agreement between brothers regarding their deceased father’s estate
435
See table 21 in the conclusions-section of this chapter to understand the logical flow of the essential
elements of Sippar.
290
assets.436
S2 was a division agreement between brothers regarding one brother’s437 awarded divided
asset.
In S3, the brothers and a sister, a nadītum priestess, agreed to a division agreement.438
In text S4, the family relationship of the two contractual parties is not clear from the text.
It was included as a family deceased division agreement, because the inheritance share
term a-la was mentioned, which shows that this was the division of an inheritance. The
contractual parties were not brothers; however, they were possibly in a family relationship
due to the division of the inheritance property.439
In S5 the brothers and sister agreed to the division regarding one asset from their father’s
estate, which was awarded to the sister as a possible usufruct.
The sister was a
kulmašītum, a well-known type of priestess.440
In S6 the contractual parties were sisters and also priestesses, one being a qadištu priestess
and the other a ṣamaš priestess. The text was a recorded division agreement concerning
the maternal estate.441 See also S7 and S10.
In S7, the contractual parties are sisters; one is a qadištu priestess.442
Inbuša and his brothers ṣamaš-mušt šir and Ibni-Irra. Their father Idadum’s estate is divided. Term used:
marum˹š (children of X) See Part C.
437
A ulap-dutu. See implied connection in no-claim-clause in Part C.
438
The brothers dSîn-í-din-nam, IdAMAR-UTU-mubali , sister ṣa-at-da naditum of ṣamaš. Terms used are
dumu (son of), dumu-munus (daughter of): see Part C.
439
S4 is an unknown, agreement between dṣeškimansum. and Illisukkal. Their family relationship regarding
one another is not evident from the text.
440
The text was a recorded agreement of the division of the paternal deceased estate of Lamassuya between
brothers Iddin-Adad (bare dominium owner), Awil-Adad, Adayatum and an unnamed sister who was a
kulmašītum, a well-known type of priestess. See term maru (sons of) in Part C.
441
The sisters were Erištum, a qadištu priestess and Amat-ṣamaš, a ṣamaš priestess. The text is a recorded
division agreement of the maternal estate of Rîbam-ilî between the sisters Erištum, a qadištu priestess and Amatṣamaš, a ṣamaš priestess during the reign of King Sinmubalí-i . By agreement Erištum, the qadištu priestess
received one sar of farmed house property. Amat-ṣamaš was appointed as beneficiary of Erištum’s estate
regarding this property and it seems that the awarded house property was only a lifelong usufruct in favour of
Erištum with mat-ṣamaš as the bare dominium owner.
442
Sisters: Erištum, a qadištu priestess and Apíltasà. See term used: nin-a-ni (daughter of) in Part C.
436
291
S8 was an agreement between brothers regarding one brother’s share.443
S9 was an agreement between brothers and a sister.444
In S10, the text was a recorded division agreement between sisters.445
S11, S12 and S13 reflected the recorded division agreement between brothers Sin-iḳ šam,
Ibni-ṣamaš and Irra-n ir. Each agreement was a summary recording of only one
brother’s agreed terms. We are fortunate to have all the copies of the three brothers’
recorded agreements regarding their agreed awarded assets. It is possible that the recorded
transactions were not completed simultaneously, because although there were more or less
similar witnesses, more witnesses were present in the S11 agreement than in the other two
agreements. In S11, thirteen witnesses were present and in the tablets S12 and S13, nine
witnesses were recorded on each tablet. Tablet S11 tablet was probably recorded first;
then, as time progressed, the other two tablets, S12446 and S13 were drawn up,447 and
some of the initial witnesses were absent. The father of the contractual parties was the
estate owner. All three brothers were contractual parties.
S14 was a recorded division agreement between brothers.448
S15 was a division agreement between a zêrmašîtu priestess and her brothers, regarding
the division of their deceased father’s estate.449
ne brother’s share, Ipquša. See no-claim clause and term a- i-šu (brother in Part C).
Brothers and sister, namely the brothers Sîn-magir, Dingir-pisa, Enlilsu, Ibi-enlil and sister Inbuša,
regarding one brother’s share, that of Ibi-enli. See no-claim clause, terms dumu (son of X), šeš-ani in Part C.
445
Regarding S10, the text is a recorded division agreement between sisters Erištum, Mimma and Idinu
regarding the agreed division portion of one of them, Erištum. See also S6 and S7. Connection implied.
446
This is a recorded division agreement between brothers Sin-iḳ šam, Ibni-ṣamaš and Irra-nâ ir and
reflected only one of the three brothers’s agreed awarded assets, namely Ibni-ṣamaš’s divided assets. See noclaim clause in Part C.
447
This is a recorded division agreement between brothers Sin-iḳ šam, Ibni-ṣamaš and Irra-nâ ir during the
reign of Sin-mubalit, reflecting only the one brother’s agreed awarded assets, namely Irra-nâ ir’s division. See
no-claim clause in Part C.
448
Idinam, Munanum and Ú kiidinam regarding the agreed divided share of Munanum in the estate of Sinnia. See term (dumu) son of X in Part C
449
Lamâzi, a zêrmašîtu priestess (mârat –daughter of X) and her brothers regarding the division of their
deceased father’s estate Up -mâgir. he tablet reflected only the priestess’ agreed divided property. Schorr
191
argues that the priestess “hierodule” received the house, a slave and some movables, as her agreed
awarded assets. If she married, however, the awarded property would became part of the income of her dowry,
and at her death it would be given to her brothers. See Part C.
443
444
292
S16 was a division agreement between three brothers and a sister, regarding the whole of
the paternal estate, wherein they divided the communally-shared inherited property into
assets of sole-ownership.450
In S17, brothers and a sister were contractual parties in a division agreement regarding
only one brother’s share.451
In S18, the brothers were contractual parties. The father (name not mentioned) was the
estate owner.452
S19 was a recorded division agreement between three brothers and their sister, and also
the children of probably a deceased brother.453
S20 was a recorded division agreement of the deceased paternal estate of Gaz-Ištar and
living sister’s estate Ilt ni, ṣamaš-priestess between the sister Ilt ni, ṣamaš-priestess and
brothers Warad-ilišu and Sinatum.454
Agreement between three brothers and a sister, namely Nûr-ṣamaš, Il ma-a î, Palatum and umurum
regarding the whole of the paternal estate (a-bi-šu-nu) wherein they divided the communally-shared inherited
property into assets of sole-ownership. See Part C.
451
Brothers and a sister were contractual parties in a division agreement regarding only the one brother’s
share namely Mâr-ir itim. This was a recorded division agreement of the unknown father and maternal estate of
Bêliznu: between the brothers (a -a -šu) and a sister, namely the brothers Mâr-ir itim, Budium, Ilušu-ellâzu
and sister Awât-Aja, sal-me priestess of ṣamaš. For Schorr (1913:260) this was a division agreement between
brothers, and a sister, a ṣamaš priestess, and involved the father’s and mother’s estates. he brothers agreed to a
trained bovine animal, some house devices and slaves, which can be deduced from the context, that the text
formed part of the father’s estate. Then they concluded, that the inheritance after the (late) mother and after the
sister’s death, a priestess who had a usufruct right in the maternal deduction, belonged to all the brothers
together. The researcher is of the opinion that the three brothers and sister concluded a division agreement, and
that in this recorded text only Mâr-ir itim, one brother’s awarded divided assets, were mentioned. After the usual
terms, that they have shared, and the division is finished, from the straw up to the gold, one will not complain
against other; an additional agreement was recorded regarding the awarded divided assets of their sister, AwâtAja, sal-me priestess of ṣamaš, and the inheritance of B liznu, their mother. It seems that Awât-Aja, sal-me
priestess of ṣamaš, had a usufruct lifelong right regarding certain assets from her mother, and after the mother
and thereafter, the sister’s death, the three brothers will receive full ownership. (See Part C for implied
connection from the no-claim clause).
452
his text and the recorded agreement reflected in S19 concerned the one brother’s divided awarded
assets, namely that of Lipit-Ištar’s. S18 was a recorded division agreement between two brothers Lipit-Ištar and
Sin-mâgir regarding Lipit-Ištar’s awarded divided asset. These two brothers undertook further to conclude an
agreement with the remaining brothers. In this agreement, S18 the deceased parent was not mentioned. See
implied connection in no-claim clause in Part C.
453
The text was a recorded division agreement between three brothers (mâr son of X) Lipit-Ištar, Ibi-Sin,
Sin-mâgir and their sister, Lamâzî, and the children (marum˹š) of a probably deceased brother Ilušu-ibišu, namely
Sin-idinnam and R š-ṣamaš. The parental estate of Bunîni was divided between the children. See Part C.
454
Recorded awarded assets of Warad-ilišu, son of the Gaz-Ištar were registered by custom. The one brother
Warad-ilišu, son of the Gaz-Ištar, received by division a house, and it was part of the deduction of the sister
Ilt ni, priestess of the ṣamaš assets. The division agreement was between the brothers and their sister. The
parties are - brother: Warad-ilišu, brother: Sinatum and sister: Ilt ni ṣamaš, who was a priestess. Both brothers
450
293
The text S21 was a recorded division agreement between brothers and possibly a
cousin.455
In S22, brothers divided the estate of their deceased father.456
S23 was a recorded division agreement where brothers were the contractual parties.457
S24 was a recorded division agreement regarding the awarding of the divided asset to one
brother.458
S25 was a recorded division agreement between brothers and their nephew.459
In S26, brothers agreed to a division of their deceased father’s estate.460
7.4.5.3 Estate owner/ Benefactor: father / mother / other kinship relationship
The estate owner in each Sippar division agreement was thus the following:461
In S1 the estate owner was the father Idadum.
In S2 an unknown parent was the estate owner, probably the father.
In S4 an unknown parent was the estate owner, probably the father.
In S3 the mother was Awil-dingir and father Ip ur-Sîn.
In S5 there was also an unnamed sister who was a kulmašītum, regarding her share from
performed a manifestation of an oath in the temple with the emblem of the ṣamaš and with the land register. See
also Sippar text S25 where there was also such a manifestation, using the emblem of Ellil, however. The
contractual parties probably included the sister’s estate in the terms of the agreement to ensure that she would
not devolve her estate to another beneficiary who was not of the brothers’ choosing. (Term used, a i-šu: his
brother, see Part C)
455
Children of X, dumu- eš. See Part C.
456
Brothers (šeš-ani), Part C.
457
d
Utu-šu-zibani, dUtušatum and Ìlí-awilim-rabi. Connection implied in no-claim clause, see Part C.
458
Recorded division agreement between the brothers Rêmu m, Marduk-na ir, Îl-šu-banî, Bêl-banî, Bêl-šunu,
Sig-Anunitu and  ati-šunu regarding the divided asset awarded to the one brother  ati-šunu. Connection
implied in no-claim clause, see Part C.
459
Schorr (1913:269-270) is of the opinion that the text was a recorded division agreement of a deceased
estate of Awîl-Adad between Warad-Sin, Sin-idinnam, Ilî-bani and their nephew, Ina-Êulmaš-zêr, son of their
late brother Ilî-bani during the reign of King Ammi-saduga. Ina-Êulmaš-zêr their nephew received a house
property by a division agreement. See terms used in Part C.
460
Brothers (children of X) Ward-Marduk, Ibni-Marduk and Pazzalum agreed to a division of their deceased
father Warad-Ulmašš tum’s estate. See Part C.
461
See Part C.
294
her father’s estate.
In S6 was the deceased mother Rîbam-il ’s estate.
In S7 the owner was the mother Ribamili.
S8 was regarding the paternal estate.
In S10 an unknown parent was the estate owner, probably the mother.
In S12 the father was the estate owner, although his name was not mentioned.
In S14 the father as the estate owner was named Sin-nia.
In S16 the father, although his name was not mentioned.
In S9 an unknown parent was the estate owner, probably the father.
In S11 it was the deceased father’s estate; however his name was not mentioned.
In S13 the father was the estate owner, although his name was not mentioned in the text.
In S15 the estate owner was implied: Upî-mâgir, the father.
In S17 the deceased father and living mother were the estate owners and a special
provision was agreed upon regarding the sister’s awarded divided assets.
In S18 the father, although no name in this recorded text.
S19 was the parental estate of Bunîni, the father.
In S20 the combined estate of the father Gaz-Ištar and the sister, an Ilt ni ṣamaš-priestess,
who were the estate owners. The father was probably deceased and the sister was still
alive.
In S22 the father was the estate owner.
In S21, the father, dAMAR-UTU-na ir.
In S23 an unnamed father was the estate owner.
In S25 it were the estates of the father and great grandfather, Awîl-Adad.
In S24 it was either the father or mother’s estate probably the father .
In S26 it was the estate of the father, Warad-Ulmašš tum.
7.4.5.4 Estate assets: fully or partially divided
In the context of each text an assessment could be made, to a certain extent, on whether all or
some of the inherited estate assets were divided and awarded to the different contractual
parties according to a division agreement.462 Such an assessment follows:
462
See Part C.
295
S1 was a partial division of the paternal estate, because only one brother’s share, namely
that of Inbuša, was divided.
In S2 only a house was included in the division, although the statement “from straw to
gold” gives the assumption that the whole estate was divided and only the most important
immovable property was specified.
In S3 a house, a field and a garden were mentioned, so it seems like a partial division,
because only the sister’s awarded divided share was recorded.
In S4, only a field was mentioned.
In S5, only the sister’s share awarded to her brother, Iddin-Adad, was recorded, regarding
a certain house (with measurements and the position next to neighbours indicated with
their names).
In S6 only one sar farmed house was mentioned. However, the term “from straw up to
gold” was used, and it could be concluded that either this was the only asset awarded to
the sister, or that this was the essential important awarded asset of the estate.
In S7 only one sar built-house and female worker of dUtu were mentioned, although the
statement “from straw to gold” gives the impression that the whole of the estate was
divided and only the most important immovable property was specified.
In S8 only one brother’s share in terms of a house and a bakery was noted; however the
sequential phrase “from straw to gold” was used.
In S9, one brother’s agreed division share was recorded.
In S10, one sar built house regarding one sister’s share was noted.
In S11, although in each contract only one sar house property with plot and /or without a
house were agreed upon, there could have been other assets, such as movables which were
296
not mentioned in any of the three texts, and which the brothers chose to share in a coownership. However, the term used, from “chaff (straw) to gold”, suggested that the
whole of the paternal estate was divided.
S12 was a recording pertaining to only one of the three brothers’ agreed awarded assets.
The house property was included. No movables were mentioned in the agreement.
However, the contractual parties concluded that everything in the estate was divided using
the term: “from straw up to gold” is divided. Maybe the movables were not considered by
the contractual parties as “significant enough”, and were therefore not referenced.
In S13, the recorded agreed portion of only one of the three brothers: a plot with a house
and a plot without a house were the assets awarded to him.
Some movables were
probably involved, although they were not mentioned; however, the contractual parties
concluded that everything in the estate was divided using the term: “from straw up to
gold” is divided. See line 9: iš-tu bi-e a-di urâṣim - from straw up to gold.
S14 recorded an exchanges of houses between the brothers.
S1 the agreed estate assets awarded to the sister consist of ⅓ sar built house, 1 slave
woman called Alî-abî and some movables including a bed and a chair. The whole estate
was not divided in this recorded agreement; there were other recordings reflecting the rest
of the paternal estate assets and the agreed awarded assets of the brothers.
In S16 the whole of the paternal estate was divided, and no description of the assets was
provided.
In S17 it seems that most of the estate assets regarding one brother’s awarded assets were
included in the recorded agreement, because different assets were divided – including a
house, household goods, utensils and an animal. In addition, the term “from straw up to
gold” was included in the text by the contractual parties.
In S18 the paternal estate assets were partially divided regarding one brother’s awarded
assets.
297
In S19 only a portion of the estate was divided, because this agreement pertained only to
the asset division of two of the family members.
S20 mentions only a house and all the contents of the father’s house, as well as that of the
sister, Iltâni. The assets, thus, seem to include the whole estate or at least those properties
worth mentioning for some reason; albeit personally and/or financially: 55/6 sar 8 gìn
farmed house (55/6 sar 8 gìn é-dù-a).
In S21, a house, fields, silver and some movable property regarding the inheritance share
of one brother/nephew were recorded.
In S22, only the share of one brother was divided, and the assets consisted of fields,
houses and slaves and some movable property.
In S23 most of the valuable assets were recorded, which consisted of 2/3 sar built house, 2
oxen with a head worker and female head worker, Il-qi.
In S24, the estate assets included a field, a house and some movable property; however
only those assets regarding the awarded divided portion of one brother. Thus, only a
portion of the estate which was divided, was recorded in the agreement.
In S25 the properties, 31/2 sar ki-gál property and was recorded regarding the awarded
divided asset of the nephew. The household goods were subject to a fief (trust), which
was not described in the text. It seems that the whole of the estate, except for the fief over
the household goods, was divided according to lines 26-29: ul- aš-zêr] mârû
eš
a-wi-[il-
ilu
adad] ú-ub-bi-[bu] Ukur-Šû. After all the acquisitions, Awîl-Adad took possession.
owever, agreements regarding the brothers’ division could have been concluded, but
were not reflected here. The “straw to gold” clause was not present in the text.
In S26, only slaves were mentioned and the following clauses appeared: “what WaradMarduk, the platoon leader (?), their brother, has acquired from his own power he has
allotted in good will to Ibni-Marduk and Pazzalum, his brothers”.
298
7.4.5.5 Mutual Consent
The mutual consent terms occurred in their contextual and grammatical structures as follows:
In S1 there was mutual consent as seen in Line 7: i-zu-zu-šu-um zi-zu ga-am-ru - they
have shared, they were finished.
In S2 again, mutual consent as noted in Line 2: i-zu-uz-zu - they have divided (agree to the
division).
In S3, consent has been given as seen on both tablets in Lines 6 and 7 - zi-zu ga -[am-ru]
i -zu-uz-zu-ú –they agree to the division and the division is finished.
In S4, line 8: i-zu-zu zi- zu - they agree to the division, and line 9: ga-am-ru - the division
is finished.
In S5, lines 6-7 the clauses appeared: zi-zu gam-ru li-ba-šu-nu ṭà-ab ú-ul i-tu-ru-ú-ma they have divided, they have gone through with it, their hearts are satisfied.
In S6, lines 7-8 the following clause appeared: nin-a-ni i-zu-zu zi-za ga-am-ra - the ladies
agree to the division, the division is finished.
S7 Case (BM 92658 A = Case of CT 6 42b)
Line 7: i-zu-zu zi-za ga-am-ra - agree to the division, the division is finished.
Tablet (BM 92658) = CT 6 42b Line 7: nin-a-ni i-zu-zu - the sisters agreed to the division.
In text S8 see line 5: ša it-ti a- i-šu i-zu-zu - the brothers agreed to the division.
Line 6: zi-zu ga-me-er-ma - the division is made, the division is completed.
In text S9 see case (BM 92585 A) = case of CT 8 16a
Line 26: zi-zu ga [am-ru-um bu]- ru -ú-ma - they agreed to division and finished the
division.
Tablet (BM 92585) = CT 8 16 a Line 25: zi-zu ga-ab-ru-um bu-ru-ma – they divided the
estate and finished the division.
299
In S10 the term: i-zu-za was recorded on the tablet and case.
In S11, the following terminology strengthened the mutual consent:
Line 9: iš-tu bi-e a-di urâṣim - from straw/chaff up to gold.
Line 10: zi-zu-ú ga-am-rum - the division is completed.
Line 12: ú-ul i-ra-ga-am - brother against brother will not raise a complaint against
another.
S12, line 9: zi(!)-zu-ú - the division is completed.
S13, line 10: zi(!)-zu-ú ga-a-rum - the division is completed.
S14, line 9: i-zu-zu zi-zu ga-am-ru - they divided, they shared, and the division is finished.
In S15, no mention was made of a mutual consent. The text referred only to an inheritance
share (Line 6 zitti), followed by an oath clause. Other recorded texts reflected the
brothers’ awarded assets, and if they are read together, then mutual consent was implicit.
In text S16, line 5: zi-zu - where the party agreed to the division of the estate as read
together with lines 5-6: iš(!)-tu bi-i a-na urâṣim - from straw up to gold; and lines 7-8:
a- u-um a-na a- i-[im] ú-ul i-ra-[ga-am] - brother against brother will not raise a claim
against each other.
In text S17, line 14: i-zu-zu zi-zu ga-am-ru – they have shared and they are finished.
In text S18, line 13: zi-zu ga-am-ra - they have shared, they are finished.
In text S19, line 16: zi-zu ga-am-ru - they have shared, they are finished. Together with
the other translated terms: they have shared, they are finished. From straw up to gold and
no one will raise a complaint against the other.
In text S20, i-zu-zu is mentioned in a few instances, that is, in lines 8, 10 and 11 – they
have agreed to divide.
300
In text S21, tablet (BM 82452), line 2 : i-zu- uz […] - agreed to the division.
Case (BM 82453) line 17: i-zu- zu […] - they agree to the division.
In S22, tablet (BM 16813) see the following terms:
Line 24: i-zu-zu – they agree to the division.
Line 25: bi-ta-am ù ba-ši-it é-a-ba - property regarding the house.
Line 26: mi-it- a-ri-iš i-zu-zu - they divided equally and agree to the division.
Line 27: [zi-zu ga-am-ru iš]-tu pí-e - the division is finished from straw.
Case (BM 16813 A)
Line 26: mi-it- a-ri-iš i-zu-zu – they agree to the division.
Line 27: zi-zu ga-am-ru - the division is finished.
Only the share of one brother was divided. The awarded assets consisted of fields, houses
and slaves and some movable property.
In S23 see the text as follows:
Case (BM92659 A) = Case of CT 6 31 b
Line 10 zi-zu ga-am-ra-am – they agree and the division is finished.
Line 9 a- i-šu-nu i-zu-zu- brothers agree to the division.
Tablet (BM 92659)
Line 10 dumu- eš zu-za-nu-um - the sons (siblings), they agree to divide.
Line 12 i-zu-zu zi-zu ga-am-ra-am - they agree to the division, the division is finished.
In S24, see line 16: i-zu-zu zi-zu ga-am-ru – they have agreed to the division and the
division is finished.463
Pinches’ 1888 61 free translation is as follows “Free rendering of her essential part of the contract:
Three acres of a field in the province of Tarbani, (and) part of an acre of a field, the property of Âḫḫati-šunu,
(situated) beside the field of Âmat-ṣamaš, daughter of Libit-Nanâ, and beside the field of Bêl-šunu, one end
(being) the river Euphrates, and the other the aqueduct. Two-thirds of a furlong (and) 5 zu (?), (with) the house
(in) Sippar, 11/2 - furlong with the house in arbani, 1 ox, 1 young sheep, and 1 'ikuše-stone-all this property
together (?), which is in the possession of Sig-Anunitu, Bêl-šunu, B l-banî, Îl-šu-banî, Rêmum, and Marduknaṣir, she (Â ati-šunu has sold, and they have paid the complete price. They are content-from the word to the
gold (that is, with regard to the agreement or contract, and with regard to the money and everything else) at no
future time shall (the buyers and the seller) have any claim against each other. They have invoked the spirit of
ṣamaš, a, Marduk, and Samsu-iluna, the king (Pinches 1888:61). It should be noted that the text was translated
in 1888; information was only gathered in the following year regarding the grammar and lexicon of Sumerian.
Thus, the researcher has translated the text, alongside Pinches’ transcription, with a few changes: see Part C,
S24. Pinches (1888:61) considers the text as part of the group “technically known as case-tablets” which he
considers “tablets with envelopes moulded around them after they had been inscribed, the envelope then
receiving also the same inscription.”… “In many cases both the tablet and its envelope are impressed with the
cylinder-seals of one or more of the contracting parties or the witnesses. In the present instance it is the envelope
463
301
In text S25 see line 14: i-zu-zu – they have divided and line 15: zi-zu ga-am-ru – they have
shared, they are finished.
In text S26 see line 14: i-zu-zu – they agreed to divide.
7.4.5.6 Raison d’êtr˹
The texts wherein an exchange or a variation thereof occurred are thus:
In S1 and S2, there was an exchange of goods, but no details were provided.
In text S3, an exchange took place where the sister received some immovable property
such as built houses and the innermost platform rooms.
In S4, there was an exchange of goods, but no details were provided.
In S5, an exchange took place, because it seems from the text that the sister received the
house as a usufruct and one brother became the bare dominium owner, as per agreement.
In text S6 an exchange- and inheritance clause appeared, regarding only one of the two
sisters’ awarded estate assets.
In S7, S8 and S9 there were exchanges recorded.
In S10 there was an exchange regarding one sister’s share.
S11, S12 and S13 were concise recordings; each brother kept his copy of the agreement as
proof of his agreed divided portion of sole ownership with its exchanges and reshuffling
of assets.
In S14, an exchange took place.
only that is impressed with seals, the tablet itself not having space for any.”… “ he seals on the envelope,
however, are especially good.” Pinches (1888:61) opines that it is a sale of land, “and presents some very
interesting features.” The researcher does not agree due to the term i-zu-zu i zu which means that the parties
mutually agreed divide and not as Pinches (1888:61) translates in line 16 as “they have paid the complete price”.
302
In S15 the house, slave and movables were awarded to the daughter/sister, on condition
that if she, as a priestess, married and her husband at the time of her death took possession
of the house and slave, then her estate would forfeit the ownership of the mentioned
property and it would devolve to her brothers.
In S16, there was a reshuffling of the deceased paternal estate assets bequeathed to the
beneficiaries of the deceased estate.
In S17, a usufruct and an exchange took place.
In S18, an exchange took place following an agreement between only two brothers; they
vouched for the other brothers who will join them later in a recorded agreement regarding
their agreed divided assets.
In S19 like in S16, we encounter a description of the assets awarded to one brother, LipitIštar. In this agreement lines 12-13, Schorr (1913:258) mentioned that the brother died and
his estate were represented by the deceased brother’s two sons.
Schorr 191
8
interpreted lines 14-15 as signifying that due to their sister’s status and occupation as
priestess, her awarded assets remained the property of her brothers. It seems that she had
a lifelong usufruct of her inheritance.
In S20 and S21, an exchange took place.
In S22 only the share of one brother was divided – assets consisted of fields, houses and
slaves and some movable property, and it seems that a reshuffling of assets took place.
In S23, an exchange took place.
In S24 and S26 there was an exchange regarding one asset.
In S25, there was a trust created in the agreement.
303
7.4.5.7 Summary
All of the essential elements of a family deceased division agreement are present in the Sippar
texts as shown in Part C under texts S1-S26. There were specific terms or words reflecting
these elements and in some instances, conclusions are drawn from the context in the texts.
See table outline (infra) regarding a synoptic comparison of the different essential elements of
Old Babylonian Sippar.
Table 15 Outline of the essential elements of Sippar division agreements
SIPPAR
Di ision agree ent of a deceased fa ily e ber’s estate
Oral division agreement reflected in recording on tablet
Essential elements:
Basic require ents “to be a house”
“building aterials” for a house e.g. walls, roof, windows, door
Brothers, sisters (some priestesses).
Family
connection
Father and in some texts mother’s estate; one text both parents’ estates.
Deceased
estate owner
Estate assets Whole of the estate divided.
terms: “from straw to gold” and “as much as there is”,
description of a variety of assets including houses, fields, slaves and other
movable property.
i-zu-zu (Akkadian).
Mutual
consent
Mechanisms: mainly an exchange, then a few instances of “bringing in” and
Raison
donation. Supported by: the casting of lots.
d’être
Family connection: All twenty-six division agreements of Sippar are family division
agreements of family members’ deceased estates. With some of the elements omitted, such as
the family connection and family relationship, certain interpretational problems occurred;
however there is still a family connection present in all of the twenty six division agreements
of the family deceased division agreements. In Sippar, in eleven of twenty-six agreements,
the contractual parties are sisters, while in nine of those, the priestess sisters partake in an
agreement. In four of the twenty-six agreements, the paternal mother is a deceased owner,
usually in the role of a priestess.
Deceased estate owner: The deceased estate owner is the late father in twenty-one texts; in
only three texts is the late mother’s estate divided. In one text, both parents’ estates are
304
divided.
Estate assets: In the majority of the agreements, only one contractual party’s awarded assets
are reflected in an agreement. However, taking into account terms such as “from straw to
gold” and “as much as there is”; as well as the description of a variety of assets including
houses, fields, slaves and other movable property it seems that the whole of the estate was
divided.
Mutual consent: The contractual parties mutually agreed to the division of the inheritance
assets by predominantly using the Akkadian term i-zu-zu.
Raison d’êtr˹: In Sippar, the mechanism for a division agreement is mainly an exchange
supported in one instance by a casting of lots. In one text, a “bringing in” also occurred
together with an exchange of assets. Only in one instance was there an equal share clause.
When examining the divisions in the majority of the texts, it seems that there was no equal
division of assets and there seems to be a donation utilised as a mechanism of division.
7.4.6
Natural elements
7.4.6.1 Introduction
Natural consequences were derived from division agreements through practice and law. Only
the following terms are used:464
Nat 2: “bringing in” (búr) (one text, S17).
Nat 3: “division by lots” (giššub-ba) (one text, S26).
Nat 4: “heart is satisfied” (li-ba-šu-nu ṭâb ab) (S1, 3, 5, 7, 8 and 23) .
Nat 5: “completely divided” (ga-am-ru/ištu) (all the texts except S10, S15, S21 and S26).
Nat 6: “no claim” (except S4, S10, S15, S25).
Nat 7: an oath (all texts).
Nat 9: “equal shares” (mi-it-ha-ri-iš) (one text S22).
Nat 10: trust/trustee (one text, S25).
464
See table 21 in the conclusions-section of this chapter to understand the logical flow of the natural
elements of Sippar.
305
Nat 11: usufruct (S5, S17, S19).
Nat 12: witnesses (all texts) ma ar/igi/pan.
7.4.6.2 Bringing in (Nat 2)465
In S1 – S16, S18, S19-S26 no “bringing in” clause was present.
Only in one text, namely S17, could we derive from the context that 5 shekels of silver were
offered as an equivalent for the house. See Lines 6-7: ki-ma 5 šiḳil k[aspim] ša bîtam a-pa-li
- 5 shekels of silver as an equivalent for the house.
7.4.6.3 Division by lots/in good will (Nat 3)466
In S1 - S25 no division by lots clause was recorded.
nly in one text, S 6, do we note from the context that “Warad-Marduk, the platoon leader
(?), their brother, has acquired from his own power he has allotted in good will to IbniMarduk and Pazzalum, his brothers”.467
7.4.6.4 Heart is satisfied (Nat 4)468
In Sippar the particular phrase “heart is satisfied” was unique to the agreement and made it
easy for a reader of cuneiform texts to identify the agreement from other texts. In Sippar, the
particular phrase in the texts is thus:
In text S1, line 8: “their hearts are satisfied”(li-ba-šu-nu ṭâb ab).
In S3 the parties state, “their hearts are satisfied” and further that “from straw to gold” and
also, “the division is finished, brother against brother will not raise a claim against another
and their heart is satisfied”.469
465
Term búr.
Terms: giššub-ba or išqu.
467
Lines 10 – 14: i-na e-mu-uḳ ra-ma-ni-šu ir-šu-ú-ma a-na ib-ni-ilumarduk ù pa-az-za-lum a - i-šu i-na tuba-ti-šu i-zu-zu.
468
li-ba-šu-nu ṭâb ab.
469
Tablet (BM 82425), line 31 il-te-qú-ú li-ba-šu-nu ṭú-ub - and their hearts are satisfied
Case (BM 82425 A) Lines 16-19: a- di guškin zi-zu ga -[am-ru] i -zu-uz-zu-ú iš-tu pí-e a-di guškin [zi-zu
466
306
In S5, the contractual parties state that “they have divided, they have gone through with it,
and their hearts are satisfied”.470
In S7, the text reads “the division is finished and their hearts are satisfied” and again later
“their hearts are satisfied”.471
In S8, on the tablet the text reads, “the division is finished and their hearts are
satisfied”.472
In S23 on the case, the text reads, “their hearts are satisfied”.
n the tablet, the text reads
in three instances “their hearts are satisfied”.473
In S24, line 17: li-ib-ba-šu-nu ṭa-ab - their hearts are satisfied.
In S25, line 16: li-ib-ba-šu-nu tâbab - their hearts are satisfied.
In S2, S4, S6, S9-S22, and S26 the phrase does not occur.
7.4.6.5 Much as there is, completely divided (Nat 5)474
S10, 15, 21 and S26 do not have “as much as there is”; a complete division clause. In the
following text, this clause occurred with its variants:
In text S1, line 7: i-zu-zu-šu-um zi-zu ga-am-ru - they have shared, they are finished.
In S2, the contractual line 7: iš-tu pí-[e] a-di guškin - “from straw to gold” they have
ga-am-ru ma-la ma-ṣú-ú] zi -ta-šu-nu ga-m˹ -[er]-tam il-te- qú-ú [li-ba]- šu -nu ṭú - ub ud -[kúr-šè a- uum a-na a- i-im] - “from straw to gold”, the division is finished, brother against brother will not raise a claim
against another and their hearts are satisfied.
470
S5 Lines 6-7: zi-zu gam-ru li-ba-šu-nu ṭà-ab ú-ul i-tu-ru-ú-ma - they have divided, they have gone
through with it, their hearts are satisfied.
471
In S7 Tablet (BM 92658) = CT 6 42b Line 8: zi-za ga-am-ra iš-tu pí-e - the division is finished and their
hearts are satisfied. S8 Line 7: li-ba-šu ṭú-ub - their hearts are satisfied.
472
In S8 Tablet (BM 92658) = CT 6 42b Line 8: zi-za ga-am-ra iš-tu pí-e - the division is finished and their
hearts are satisfied.
473
In S23Case (BM92659 A) = Case of CT 6 31 b, line 11 li-ib-ba-šu-nu ṭà-ab - their hearts are satisfied
Tablet (BM 92659) Line 13 li-ib-ba-šu-nu ṭà-ab - their hearts are satisfied, S24 line 17: li-ib-ba-šu-nu ṭà-ab “their hearts are satisfied”, S25 Line 16: li-ib-ba-šu-nu tâbab – their hearts are satisfied.
474
Terms gamāru, ištu, gál-àm.
307
divided.
In S3 on the Tablet (BM 82425) in the text and on the case we read: the division is
finished, brother against brother will not raise a claim against another and their hearts are
satisfied.475
S4, line 9: ga-am-ru - the division is finished.
S5, lines 6-7: zi-zu gam-ru li-ba-šu-nu ṭà-ab ú-ul i-tu-ru-ú-ma - they have divided, they
have gone through with it, their hearts are satisfied.
In S6 the text states: the ladies agree to the division, the division is finished.476
In S7 on the case, the text reflects: i-zu-zu zi-za ga-am-ra - agree to the division, the
division is finished and on the tablet zi-za ga-am-ra iš-tu pí-e - the division is finished and
their hearts are satisfied. “From straw to gold”.477
In text S8, in line 6: zi-zu ga-me-er-ma - the division is made, the division is completed.
In S9, the text reads on the case “they agree to division and finished the division”. On the
tablet “they divide the estate and finished the division. “From straw to gold”.478
S11, line 9: iš-tu bi-e a-di urâṣim - from straw up to the gold.
S3 Tablet (BM 82425), lines 29-30 zi-zu ga-am-ru ma-la-ma- ṣú-ú zi-ta-šu-nu ga-me-ir-tam - they have
divided, the division is finished. Case (BM 82425 A), lines 16-19: a- di guškin zi-zu ga -[am-ru] i -zu-uz-zuú iš-tu pí-e a-di guškin [zi-zu ga-am-ru ma-la ma-ṣú-ú] zi -ta-šu-nu ga-m˹ -[er]-tam il-te- qú-ú [li-ba]- šu nu ṭú - ub ud -[kúr-šè ¬a- u-um a-na a- i-im] - “from straw to gold”, the division is finished, brother against
brother will not raise a claim against another and their hearts are satisfied; from straw to gold.
476
S6 Line 7-8 nin-a-ni i-zu-zu zi-za ga-am-ra - the ladies agree to the division, the division is finished. Line
7-8 nin-a-ni i-zu-zu zi-za ga-am-ra - the ladies agree to the division, the division is finished. Line 9: iš-tu bi-e adi urâṣim - from straw up to the gold.
477
S7 Case (BM 92658 A = Case of CT 6 42b Line 8: iš-tu pí-e a-di guškin - “from straw to gold”
Tablet (BM 92658) = CT 6 42b Line 9: a-di guškin a- a-tum - “from straw to gold”
Case (BM 92658 A = Case of CT 6 42b Line 7: i-zu-zu zi-za ga-am-ra – they agree to the division, the division
is finished. Tablet (BM 92658) = CT 6 42b Line 8: zi-za ga-am-ra iš-tu pí-e - the division is finished and their
hearts are satisfied.
478
S9 Case (BM 92585 A) = Case of CT 8 16a Line 26: zi-zu ga [am-ru-um bu]- ru -ú-ma - they agree to
division and finished the division. Tablet (BM 92585) = CT 8 16 a Line 25: zi-zu ga-ab-ru-um bu-ru-ma - they
divide the estate and finished the division. Case (BM 92585 A) = Case of CT 8 16a Line 27: iš-tu pí [e a-di]
guškin - “from straw to gold”. Tablet (BM 92585) = CT 8 16 a Line 26: iš-tu pi!-e a-di guškin - “from straw to
gold”.
475
308
Line 10: zi-zu-ú ga-am-rum - the division is completed.
S12, line 9: zi(!)-zu-ú - the division is completed.
Line 10: iš-tu bi-e a-di urâṣim - from straw up to gold.
S13, line 10: zi(!)-zu-ú ga-a-rum - the division is completed.
S14, line 9: i-zu-zu zi-zu ga-am-ru - they divided, they shared, and the division is finished.
S16, lines 5-6: iš(!)-tu bi-i a-na urâṣim - from straw up to gold.
S17, line 9: iš-tu bi-e a-di urâṣim - from the straw up to gold.
Line 14: i-zu-zu zi-zu ga-am-ru - they have shared, they are finished.
S18, line 13: zi-zu ga-am-ra - they have shared, they are finished.
S19, line 16: zi-zu ga-am-ru – they have shared, they are finished.
Line 17: iš-tu bi-e a-di urâṣim - from straw up to gold.
S18, line 13: zi-zu ga-am-ra - they have shared, they are finished.
S19, line 16: zi-zu ga-am-ru - they have shared, they are finished.
S20, lines 11: zi-zu ga-am-ru iš-tu bi-e - they have shared, they are finished.
Line 12: a-di urâṣim a- u-um a-na a- i-im - from straw up to gold.
In S22 the tablet reads: “the division is finished from straw, and later, the division is
finished”.
Furthermore: “ he division is finished from straw…to gold, brother to
brother”. 479
S22 Tablet (BM 16813) Line 27: [zi-zu ga-am-ru iš]-tu pí-e - the division is finished; from straw
Case (BM 16813 A) Line 27: zi-zu ga-am-ru - the division is finished
Tablet (BM 16813) Line 27: [zi-zu ga-am-ru iš]-tu pí-e - the division is finished from straw; line 28: [a-di
guškin a- u-um] a-na a- i-im - to gold; brother to brother. Case (BM 16813 A) Line 28: iš-tu pí-e a-di guškin “from straw to gold”.
479
309
In S
on the case and tablet the text reads “they agree to the division, the division is
finished”. Also, has agreed to the division and the division is finished. “From straw to
gold”.480
S25, line 15: zi-zu ga-am-ru – they have shared, they are finished.
7.4.6.6 No claim (Nat 6)481
The texts S4, S10, S15 and S25 had a no claim clause.
The following texts reflected this clause with its different variants, namely:
S1, lines 9-12: ṣamaš-mustêsir and Ibni-Irra will not complain and come back [and not
sue the children of Idadum, against Inbuša, their brother].482
S2, line 5: they will not complain and come back, at a future time one brother against the
other shall not make a claim.483
S3: brother against brother will not raise a claim against another. And “from straw to
gold”, the division is finished, brother against brother will not raise a claim against
another and their hearts are satisfied.484
S5, line 7 - ú-ul i-tu-ru-ú-ma – no one will come back.
S6, line 10: a-na a- a-tum ú-ul i-ra-ga-am - will not complain one against other.
480
S23 Case (BM92659 A) = Case of CT 6 31 b Line 10 zi-zu ga-am-ra-am. Tablet (BM 92659) Line 12 izu-zu zi-zu ga-am-ra-am - they agree to the division, the division is finished. S24, lines 15-17 i-zu-zu zi-zu gaam-ru – they have agree to the division and the division is finished; line 18: iš-tu pi-e a-di uraṣi - from the
straw to the gold. S25, line 15 : zi-zu ga-am-ru – they have shared, they are finished.
481
Terms : inim nu-um-gá-gá-a or the variant šeš-a-ne-ne ba-ani-ib-ge4-ge4-ne.
482
S1, line 9-12 : [ú]-ul i-tu-ru-ú-ma iluša-maš-mu-uš-te-š˹-ir [ù ib]-ni-ilu ì[r-ra mârûm˹š i-da-du-um a-na
in-bu-ša a- i-šu-nu ú-ul i-ra-ga-mu].
483
S2, Line 5: ú-ul i-ta-ar-ma - they will not complain and come back; Line 8: zi-zu a-na a- u-la-a˃ -dutu
ú-ul i-ra-ga/-mu - at a future time one brother against the other shall not make a claim.
484
S3 Tablet (BM 82425) Line 32 ud-kúr-šè a- u-um a-na a- i-im - brother against brother will not raise a
claim against another. Case (BM 82425 A) Lines 16-19: a- di guškin zi-zu ga -[am-ru] i -zu-uz-zu-ú iš-tu píe a-di guškin [zi-zu ga-am-ru ma-la ma-ṣú-ú] zi -ta-šu-nu ga-m˹ -[er]-tam il-te- qú-ú [li-ba]- šu -nu ṭú ub ud .[kúr-šè ¬a- u-um a-na a- i-im] - from straw to gold, the division is finished, brother against brother
will not raise a claim against another and their hearts are satisfied.
310
S7 Case (BM 92658 A = Case of CT 6 42b)
Line 9: a- a-tum a-na a- a-tim - sister to sister will not come back.
Line 10: ú-ul i-ra-ga-am - they will not raise a word against each other.
Tablet (BM 92658) = CT 6 42b
Line 10: a-na a- a-tim ú-ul i-ra-ga-am - they will not come back.
S8: they will not come back, brother against brother, shall not come back and make a
claim against each other.485
S9 Case (BM 92585 A) = Case of CT 8 16a Tablet
Line 28: a- u-[um a-na a- i-im] ú -ul e-ra-ga-am - brother to brother will not come
back.
Tablet (BM 92585) = CT 8 16 a, line 27: a- u-um a-na a- i-im ú-ul inim gá-gá-a - brother
to brother will not come back.
S11, line 12: ú-ul i-ra-ga-am - brother against brother will not raise a complaint against
another.
S12, line 12: a- u-um a-na a- i-im ú-ul i-ra-ga-am - brother against brother will not raise
a complaint against another.
S13, lines 11-12: a- u-um a-na a- i-im ú-ul i-ra-ga-am - brother against brother will not
raise a complaint against another.
S14, line 10: ud-kúr-šè a- u-um a-na a- i-im - brother to brother they will not return.
Line 11: ú-ul i-ra-ga-am - they will not lay a word against each other.
S16 lines 7-8: a- u-um a-na a- i-[im] ú-ul i-ra-[ga-am] - brother against brother will not
raise a claim against each other.
S17, lines 16-17: a- u-um a-na a- i-im ú-ul i-ra-ga-am - one will not complain against
485
S8, line 8: ú-ul i-ta-ar-ma - they will not come back; line 10: a- u-um a-na a- i-im - brother against
brother; line 11: ú-ul i-ra-ga-am - shall not come back and make a claim against each other.
311
other.
S18, lines 14-15: a- u a-na a- i ú-ul i-ra-ga-am - one against the other will not raise
complaint.
S19, lines 18-19: a- u-um a-na a- i-im ú-ul i-ra-ga-am – no one will raise a claim against
another.
S20, line 13: ù-ul i-ra-ga-am - one will not complain against other.
S21, line 3: [ud]-kúr-šè lú-lú-ú?-ra - brother to brother.
Line 4: iunim nu-um-gá-gá-a - will not speak a word against each other.
S22, Tablet (BM 16813)
Line 29: [ú-ul i-ra-gu]-um […] - they will not raise a word.
Case (BM 16813 A), line 29: a- u-um a-na a- i-im ú-ul i-ra-gu-um - brother to brother
will not raise a word.
S23, Case (BM92659 A) = Case of CT 6 31 b
Lines 12-13 ud-kúr-šè a- u-um a-na a- i-im ú-ul i-ra-gu- mu - in the future brother
against brother will not raise a claim.
S24, lines 19-20: ana matima a- u-um a-na a- a-im la iragamu - in future brother against
brother will not have a claim against another.
S26, line 26: ú-ul i-ra-ag-ga-mu - brother to brother will not come back to raise a
complaint.
7.4.6.7 Oath in temple (Nat 7)486
he other “normal” oath, which also occured in Nippur and Larsa texts, involved instances
where the contractual parties sworn to the gods, the reigning king and sometimes in Sippar
486
Term pàd.
312
even to the city itself. See in this regard the incidental elements.
In Sippar, an oath occurred in the temple in three of the texts, S20, S25 and S26, which
included ceremonial rituals. The contractual parties cleansed themselves during a ritual. In
one text there was a ceremony wherein the agreement was also register in a land register.
S20 was a recorded division agreement of the deceased paternal estate of Gaz-Ištar and
the estate of a living sister, Ilt ni, a ṣamaš-priestess. The agreement was between the
sister Iltâni and her brothers, Warad-ilišu and Sinatum. The awarded assets of Waradilišu, son of Gaz-Ištar are registered by custom. One brother, Warad-ilišu, received a
house by division and it was part of the deduction of the sister Ilt ni’s assets. Together
with the normal oath clause - By ṣamaš, ja, Marduk and ammu-rapi they have sworn –
this translates as: “Both brothers performed a ceremony of an oath in the temple with the
emblem of Sin and with the land register of ṣamaš” (See also Sippar texts S25 and S26
where there is a similar ceremony, but using the emblem of Ellil).
In the interpretation of text S25, Schorr opines (1913:269- 270) that the text was a
recorded agreement of the division of the deceased estate of Awîl-Adad between WaradSin, Sin-idinnam, Ilî-bani and their nephew, Ina-Êulmaš-zêr, son of their late brother Ilîbani, during the reign of King Ammi-saduga. The oldest beneficiary has performed,
before his co-beneficiaries, an oath with the emblem of the Ellil. Some of the ceremonial
rituals completed, were mentioned in this text.
7.4.6.8 Equal Shares (Nat 9)487
Only in one text, S25 in line 20, the term mi-it- a-ri-iš was recorded.
7.4.6.9 Trust/Trustee (Nat 10)
In Sippar, the particular condition agreed by the contractual parties of a trust-construction was
unique to the agreement and made it easy for a reader of cuneiform texts to identify the
agreement from other texts. In Sippar, the particular condition agreed by the contractual
parties in the text is thus:
487
Term mit āriš.
313
In S25, it was stated that the income accrued from the father’s house belonged to them
together, and that they would administer this fief of the father's house (Schorr 1913:269- 270).
It seems that the fief was more a feoffee in its uses; in present-day law, it could be considered
the obligations the trustees of a trust have towards the trust assets (trust-construction). In this
instance, the trustees have a fiduciary obligation to manage and oversee the trust property to
the advantage of the beneficiaries’ enjoyment thereof.
ne can deduce that the brothers, as
“trustees” over their nephew’s house goods, beared the fiduciary obligation to manage the
property to their nephew’s advantage.
7.4.6.10 Usufruct (Nat 11)
In Sippar, the particular condition agreed by the contractual parties of a usufruct-construction
was unique to the agreement and made it easy for a reader of cuneiform texts to identify the
agreement from other texts. In Sippar, the particular condition agreed by the contractual
parties in the texts is thus:
In S5, an exchange took place. It seems from this text that the sister received the house as
a usufruct and her brothers, as per agreement, became the bare dominium owners. Goetze
19 7 1
refers to the text as a “division of the estate of a kulmašītum, between her
brothers” and argues that this is the same as paragraph 181 of C , which stated “If a
father dedicates a nadītum, a qadištu, or a kulmašītum to the deity without providing her
with a dowry – if afterwards the father goes to his fate she shall receive as her share of the
goods of the paternal estate her one-third share and shall have the usufruct of it as long as
she lives. What she leaves belongs to her brothers”. Goetze (1957:16) expresses the view
that there were also tablets for the other two brothers.
In S17, an additional agreement was recorded regarding the awarded divided assets of the
sister, Awât-Aja, sal-me priestess of ṣamaš, and the inheritance of Bêliznu, the mother.
Awât-Aja, sal-me priestess of ṣamaš, has a usufruct lifelong right regarding certain
assets received from her mother’s estate. It is concluded that after the mother and sister’s
death these assets would fall back into the possession of the three brothers. See lines 18 21: ap-lu-ut Iawât-iluaja sal-me ilušamaš ù ap-lu-ut Ibe-li-zu-nu um-mi-[šu-nu] ša awâtiluaja sal-me ilušamaš za-ab-ta-at ša bi-ri-šu-nu-ma.
314
In S19, Schorr (1913:256) interpreted lines 14-15 as signifying that the sister’s
inheritance, due to her status and occupation as a priestess, remained the property of the
brothers and at the time of her death became the common property of the brothers or their
successors. Practically, it seems that the awarded asset of inheritance of the sister served
to her advantage as a lifelong usufruct. Due to the sister’s status and occupation as
priestess, her awarded assets remained the property of her brothers and she only had a
lifelong usufruct.
7.4.6.11 Witnesses (Nat 12)488
In all twenty-six of the Sippar texts witnesses were recorded as present, by utilising the terms
igi or ma ar or pan, which occur as follow:
In S1 it is uncertain if the term igi or ma ar is used.
In S2, S3, S4, S7, S8, S9, S10, S14, S21, S22-23: igi.
In S5, S6, S11: ma ar.
In S12: ma ar. Fewer witnesses – same names as reflected in the other two recorded
transactions of brothers in S11 and S13; however, in this tablet there were fewer
witnesses.
were the same witnesses as in S11 and S12.
In S13 ma ar. Fewer witnesses than in the other two recorded transactions, although they
In S15-20, S25 and S26: ma ar.
And only in the one text in S24 the term pan was utilised.
7.4.6.12 Summary
See table outline (infra) regarding a synoptic comparison of the different natural elements of
Old Babylonian Sippar.
488
Term igi or ma ar or in one Sippar text: pan.
315
Table 16 Outline of the natural elements of Sippar division agreements
SIPPAR
Division agreement of a deceased family member’s estate
Oral division agreement reflected in recording on tablet
Natural elements:
Legal tradition practices
”type of structure of house” e.g. double-storey house, patio
Nat 1
None.
Adoption/support
Nat 2
One text, S17 (3.8%).
Bringing in
giš
šub-ba in only one text, S26 (3.8%).
Nat 3
Division by
lots/in good will
Nat 4
In 8 texts S1, S3, S5, S7, S8, S23, S24, S25 (30.7%).
“Heart is
satisfied”
Nat 5
In 84% of the texts except for 4 of the 26 texts: S10, S15, S21 and S26.
“as much as
there is”/“from
straw to gold”
Nat 6
In 84% of the texts, except for 4 of the 26 texts S4, S10, S15, S25.
No claim
Nat 7
All 26 texts (100%) the normal oath.
Oath in
In three texts the oath in the temple (11.5%).
temple/oath
Nat 8
None.
Preference
portion
Nat 9
One text S22 (3.8%).
Shares: equal
clause
Nat 10
One text, S25 (3.8%).
Trust (trustee)
Nat 11
Three texts S5, S17, S19 (11.5%).
Usufruct
Nat 12
All the texts are witnesses (all texts) ma ar/igi/pan (100%).
Witnesses
In Sippar there were a wide variety of legal practices, although certain legal practices were
more present in the following natural elements: Nat 4, a heart is satisfied (S1,3,5,7,8,23); Nat
5, completely divided ga-am-ru/ištu (all of the texts except S10, S15, S21 and S26); and Nat
11, usufruct (S5, S17, S19). Two symbolic expressions were used, namely the “heart is
satisfied” and “from straw to gold” (See terms in Chapter 6).
316
The three legal practices Nat 6, no claim (except S4, S10, S15, S25); Nat 7, an oath (all texts)
as well as three ceremonial oaths in a temple, and Nat 12, witnesses (all texts) ma ar/igi/pan
were normal legal practices found in other city-states too, and were used in the majority of
the Sippar texts.
Legal practices that were not often used, seemed like exceptions and were governed by
unique family circumstances, which were: Nat 2, “bringing in” (one text S17); Nat 3,
“division by lots” (one text S26); Nat 9, “equal shares” (one text S22); and Nat 10,
trust/trustee (one text S25).
7.4.7
Incidental elements
7.4.7.1 Introduction
In this category, we find the uniqueness of different scribal practices reflected in the written
division agreement; however, parties could choose to include the scribal traditions in their
contracts and they did not form part of the basic requirements to qualify a contract as a
division agreement.489
Under written formalities of division agreements the following aspects were investigated,
namely: names of contractual parties, birth order, descriptions of assets (thorough description,
value), special legal terms, a sanction clause (type), an oath clause (king/god) and witnesses
(names, rank/family standing).
As regards the qualities of division texts, the following were emphasised, namely: language,
location of text, tablet’s condition, copies, date formula, seal impressions and the rhythmic
sequence/special style.
7.4.7.2 Written formalities of division agreements
(i) Names of contractual parties, rank
In the written agreements certain aspects were present – normally the names of the parties and
489
See table 21 in the conclusions-section of this chapter to understand the logical flow of the incidental
elements of Sippar.
317
their relationship to each other, and their standing within their family, for example son or
daughter of X. The names could furnish some insight as to whether it was a Semitic,
Sumerian or Akkadian text. It occurred in the texts as follows:
In S1 the contractual parties names mentioned were mârûm˹š i-da-du-um (children of x),
in-bu-ša a- i-šu-nu (brothers of X).
S2 mentions only the name of one brother whose divided awarded asset was reflected in
the text.
In S3 reference was made to brothers and a sister. The brothers dSîn-í-din-nam, IdAMARUTU-mubali , sister ṣa-at-da, naditum of ṣamaš.
In S4 only reference to a “son of X”.
S reflected only the words the “share of their sister, the kulmašītu”. he names of the
brothers and their father’s names, but not their sister’s were mentioned in the text.
he
names of the brothers were Iddin-Adad (bare dominium owner), Awil-Adad, Adayatum
and an unnamed sister who was a kulmašītu.
In S6 the names of Erištum – sister and priestess (qadištu) and Amat-ṣamaš – sister and
priestess were mentioned.
In S7 the text mentioned only the names of the sister, who was a priestess.
In S8 the text mentioned only the brother who received his share. His father was not
mentioned.
In S9 the names of contractual parties were mentioned but there was no mention of the
son of X.
In S10 the sisters, Erištum, Mimma and Idinu were mentioned, regarding the agreed
division portion of one sister, Erištum.
318
In S11, S12 and S13 names were mentioned and the text implies that the contractual
parties were brothers, namely brother (Si 1): Sin-iḳ šam, brother Si
Ibni-ṣamaš,
brother (Si 3): Irra-n ir.
S14 mentions son of X, regarding one brother, whose share was divided in this text.
S15 mentioned only one party – the daughter; but a son, Sin-gâmil, was implied in the
description of the location of the inherited house.
In S16 the names of the contractual parties were mentioned, namely Nûr-ṣamaš, Il maa , Palatum, umurum.
he text implied that they were the siblings of their father in line
4 of the text: mi-im-ma ša a-bi-š[u-nu].
In S17, the father’s name was not mentioned. he names that were, those of the brothers,
mother and sister. Bêliznu: mother, Mâr-ir itim brother, Budium brother, Ilušu-ellâzu:
brother. Sister/ sal-me priestess of ṣamaš
w t-Aja.
In S18 the full names were given, see the text “Lipit Ištar, his brother which he received
by division with Sin-m gir”.
S19 the contractual parties were Lipit-Ištar, son of the Bun ni and his sister Lam z , salme priestess of ṣamaš. Reference was made to Sin-mâgir and Ibi-Sin, the children of the
Bunîni, and Sin-idinnam and R š-ṣamaš, the children of Ilušu-ibišu, their brother.
S20 Warad-ilišu, son of the Gaz-Ištar, Ilt ni, priestess of the ṣamaš, his sister and
Sinatum, their brother.
S21 only mentioned the contractual party who received his share. See Tablet (BM 82452)
and Case: Children of dAMAR-UTU-na -[ṣir a- i-šu] - brothers.
S22 mentioned the names, and the status of the parties.
In S23 the names were mentioned.
d
Utu-šu-zibani, dUtušatum and Ìlí-awilim-rabi were
319
brothers.
S24 mentioned the names of the contractual parties.
S25 the following names were mentioned, namely: Warad-Sin, Sin-idinnam, Ilî-bani and
the nephew, Ina-Êulmaš-zêr, son of their brother, Ilî-bani, who was probably predeceased.
In S26, the contractual parties Ward-Marduk, Ibni-Marduk and Pazzalum mentioned they
were the children m rûmeš of Warad-Ulmašš tum.
(ii) Birth Order of brothers
Sometimes the ranking order in the family was furnished. This normally occured in texts for
a reason as in the instance of the named
giš
banšur zaggulá clause, where the oldest son
received a preference portion from the deceased parent’s estate. In Sippar texts there were no
birth order rankings of the contractual parties.
(iii) Description of assets: thorough description, value
In the texts, depending on the scribal tradition, the descriptions of the assets differed. For
instance, where a contractual party wrote the agreement, the property was not described. In
certain texts in the city-states of Nippur especially, and some in Sippar, the property was
accurately noted and discussed in detail. In some texts, only the more valuable items were
mentioned as divided, such as immovable property and slaves. The descriptions in the Sippar
tablets were thus:
S1 referred to the immovable property’s location and extent, for example, 1/3 (?) sar 5 gìn
built house, near the house of the Bûrija and Bazâ, and reference was also made to
movable property, regarding the type and numbers: 1 ox; 1 cow.
S2 only described the type of property: a house and its location, for example, house of X;
its first end of X.
320
S3 provided a description of the unit, the extent and boundaries of the unit and the
position on, or in relation to the unit, for example: 1 ½ sar innermost room platform next
to the house of Núr-dutu-iš and next to the house of Mu í-im of dSîn-ibniš.
In S4 the description and position on, or in relation to the unit were given: 1 iku field,
with/by ṣašukusatum, Next to Balaliki, and next to field of Ìlísukkal.
In S5, the description and position of the unit were provided: 2/3 sar 8 1/3 gín house, Lines
2-4: beside the house of Adayatum and beside the house of Etelliya.
S6 provided a description in situ - one sar farmed house property near the house of
B laḳum around and near Awîl-Nannar.
S7 only described the type of house and its location and mentioned the slave. For
example, see line Tablet (BM 92658) = CT 6 42b 1 sar built-house next to the house of
Belakum and house of Lušeški. Female worker of dUtu to the sister Apíltasà.
In S8 the extent of the house and its position was outlined, for example, 1/3 sar 3 2/3 gín 5
built house next to the house of X “regarding the bakery possessions or accessories”.
S9 provided a description, the position on, or in relation to the unit, and various
immovable properties (fields and houses) and slaves. The unit, type of property and next
to person’s name were mentioned, as well as the name of the slave, for example, 1.3 iku
total field which belonged to Dihatanim, next to the field of Inbuša his sister, etc. and 1
slave named Sinapseram.
S10 only stated the type of property and extent on the tablet and case: 1 sar farmed house
(built house).
In S11 a house and a plot without a house were mentioned. The parties concluded that the
whole of the estate was divided, and used the terms from straw up to gold to emphasise
this. The house and the plot without a house were described according to their location
followed by the name of the neighbour, and some description as to where the exit of the
321
property was, for example 1 sar farmed house property, with plot without a house, near
the house of Ibni-ṣamaš.
In S1 the property was described regarding location and place of exit; the neighbour’s
name was also given, for example 1 sar farmed house property, near the house of Siniḳ šam; and near the house of Ištar-ummaša.
In S13 the property was described regarding location and place of exit, while the
neighbour’s name was also mentioned, for example, “a sar of plot with house and of plot
without house, on the one side adjoining the house of Ubar-rija and on the other side
adjoining the field of Pu ur-Sin – the second exit towards the street”. It seems that the
whole estate was divided due to the terms translated as “from the straw up to the gold and,
the division is completed”, although no movables were mentioned.
S14 provided the description and the position on, or in relation to the unit, for example 5/6
sar 8 1/3 gín house next to the house of Alikum. Also, next to the house of dUtu-dingir
next to Ìr-dutu next to the house of Sina ir, and next to the house of Ú kidinam his
brother.
S1 provided an elementary description of assets and location, for example ⅓ sar farmed
house property, near the house of Sin-gâmil, (her) brother, 1 slave Alî-abî with name, 1
finished (?) bed, 1 skipper chair.
In S16 no assests were described regarding the location, size and type.
S17 provided a proper description of assets, namely: the mentioning of slaves by name:
ṣamaš-na rar and Nin.Gal-ummî, a bovine animal; a description of utensils: a hand mill
for fine flour, wooden … instead of
shekels of silver as an equivalent for the house ˹ a
wooden wagon …, a bed with two chairs and a warehouse pot.
S18 provided a full description regarding the immovable property: 3 5/6 sar 2½ gin farmed
house property. However, the location was not mentioned. Naming of slaves (Lûmurgimil-ṣamaš, Warad-Eru’a, Kanišu,
ar bum, Lû-šalim-bašti, I rupani and
šra-tum322
ummî). Short description of movables: 7 doors, 2 mirror precious stones, 1 hand mill for
fine flour, 2 oil pans, 1 stone ešitu .
S19 included immovable property and mentioned some movables, for example 2 sar
house property, building (?), near the house of Sin-erîbam, son Warad-ilišu; its front
extended (surpasses) to the street; named slaves, and one named slave who escaped. The
sister’s division of property was not specified. S19 only mentioned “ lso the inheritance
of the Lamâzî, which belonged to her as sal-me priestess of ṣamaš, their sister”.
S20 provided a good, full description regarding the immovable property by mentioning
the sar and location. Although there was no mention of the type of movables, it did
specify details, by including everything that was in the houses of the two estate owners.
S21 gave a description, and the position on, or in relation to the unit, and any servitude
feature present. Mention was only made of the unit of the property.
S22 provided a description and the position on, or in relation to the unit, and any servitude
feature present.
In S23 most of the valuable assets were recorded, which consisted of 2/3 sar built house, 2
oxen with a head worker and female head worker Il-qi. The description and the position
on, or in relation to the unit were provided.
S24 gave a description of the unit and its extent and boundaries: 3 acres, a field of the
province of Tarbani (and) part of one-acre, a field, share of  ati-šunu beside the field of
Âmat-ṣamaš, daughter of Libit-Nanâ and beside the field of Bêl-šunu, its first end the
river Euphrates and its second end the aqueduct. It also specified the type of movable
property, for example 1 ox, 1 young bull. Some household goods, which were subjected to
a fief, were not described in the text.
S26 only described the slaves – the name of the slave, for example, lines 1: 1 slave Anumgâmil with her children was. The text then referred only to all the assets acquired by one
beneficiary, but did not specify them.
323
(iv) Special legal terms
In S1 the following special legal terms are present:
Line 7: i-zu-zu-šu-um zi-zu ga-am-ru - they have shared, they are finished.
Line 8: li-ba-šu-nu ṭâbab - their hearts are satisfied.
Lines 9-12: [ú]-ul i-tu-ru-ú-ma
ilu
ša-maš-mu-uš-te-š˹-ir [ù ib] -ni-ilu ì[r-ra mârûm˹š i-da-
du-um a-na in-bu-ša a- i-šu-nu ú-ul i-ra-ga-mu] - ṣamaš -mustêsir and Ibni-Irra, will not
complain and come back [and not sue the children of Idadum, against Inbuša, their
brother].
In S2 special legal terms are:
Line 2: i-zu-uz-zu - they have divided.
Line 5: ú-ul i-ta-ar-ma - they will not complain and come back.
Line 7: iš-tu pí-[ e] a-di guškin - from straw to gold they have divided.
Line 8: zi-zu a-na a- u-la-ap -dutu ú-ul i-ra-ga/-mu - at a future time one brother against
the other shall not make a claim.
In S3 the special legal terms applicable are:
a-la ša-at-da-a lukur d utu - inheritance share of ṣat-da naditu of ṣamaš.
iš-tu pí-e a-di guškin - from straw to gold.
zi-zu ga -[am-ru] i -zu-uz-zu-ú – they agree, the division was finished.
In S4 the following special legal terms are present:
Line 5: a-la dṣEṣ-KI-ma-an-[sum] - share of dṣeškimansum.
Line 8: i-zu-zu zi- zu - they agreed to the division.
Line 9: ga-am-ru - the division was finished.
In S5 the special legal terms present were:
Lines 1: zi-ti a- a-ti-šu-nu kulmašītum - share of their sister, the kulmašītum.
Line 4: zitti I-din-dAdad - (is) the share of Iddin-Adad.
Line 5: iš-tu pé a-di urāṣim - from the chaff to the gold.
Lines 6-7: zi-zu gam-ru li-ba-šu-nu ṭà-ab ú-ul i-tu-ru-ú-ma - they have divided, they have
gone through with it, and their hearts are satisfied.
324
Lines 8-10: 1A-wi-il-dAdad ù A-da-ia-tum mārū Lam-mas-su-ia a-na I-din-dAdad a- i-šunu ú-ul i-ra-ga-mu - and (that) Awil-Adad and Adayatum, the sons of Lamassuya, will not
raise claims against, Iddin-Adad, their brother.
In S6 the special legal terms were:
Line 4: zitti – inheritance share.
Lines 7-8: nin-a-ni i-zu-zu zi-za ga-am-ra - the ladies agreed to the division, the division
is completed.
Line 9: a-di urâṣim a- a-tum – from the straw up to the gold.
Line 10: a-na a- a-tum ú-ul i-ra-ga-am - will not complain one against other.
Line 11: a-pil-ta-ša amat-ilu-šamaš Nin-Ni -her hereditary daughter is Amat-ṣamaš, her
sister.
In S7 the following special legal terms were present:
In the Case (BM 92658 A = Case of CT 6 42b)
Line 7: i-zu-zu zi-za ga-am-ra - agree to the division, the division is completed.
Line 8: iš-tu pí-e a-di guškin - from straw to gold.
Line 9: a- a-tum a-na a- a-tim - sister to sister will not come back.
Line 10: ú-ul i-ra-ga-am - they will not raise a word against each other.
In Tablet (BM 92658) = CT 6 42b
Line 7: nin-a-ni i-zu-zu - the sisters agreed to the division.
Line 8: zi-za ga-am-ra iš-tu pí-e - the division is completed and their hearts were satisfied.
Line 9: a-di guškin a- a-tum - from straw to gold.
Line 10: a-na a- a-tim ú-ul i-ra-ga-am - they will not come back.
In S8 the following special legal terms were present:
Line 4: a-la ip-qú-ša - is the share of Ipquša.
Line 5: ša it-ti a- i-šu i-zu-zu - the brothers agreed to the division.
Line 6: zi-zu ga-me-er-ma - the division was made, the division is completed.
Line 7: li-ba-šu ṭú-ub - their hearts are satisfied.
Line 8: ú-ul i-ta-ar-ma - they will not come back.
Line 10: a- u-um a-na a- i-im - brother against brother.
Line 11: ú-ul i-ra-ga-am - shall not come back and make a claim against each other.
325
In S9 the special legal terms applicable are:
In Case (BM 92585 A) = Case of CT 8 16a Tablet
Line 25: a-la i-[bi-den]-líl ša it-ti a - i-šu i-zu-zu - inheritance share of Ibi-enlil, and the
brothers agreed to the division.
Line 26: zi-zu ga [am-ru-um bu]- ru -ú-ma - they agreed to the division and completed
the division.
Line 27:iš-tu pí [e a-di] guškin - from straw to gold.
Line 28: a- u-[um a-na a- i-im] ú -ul e-ra-ga-am - brother to brother will not come
back
Tablet (BM 92585) = CT 8 16 a.
Line 24 Rev: a-la i-bi-den-líl ša i-tí a- i-šu i-zu-zu - inheritance share of Ibi-enlil and the
brothers agreed to the division
Line 25: zi-zu ga-ab-ru-um bu-ru-ma - they divided the estate and completed the division.
Line 26: iš-tu pi!-e a-di guškin - from straw to gold.
Line 27: a- u-um a-na a- i-im ú-ul inim gá-gá-a - brother to brother will not come back.
In S10 the following special term is present:
Tablet i-zu-za ù […] and case i-zu-za
In S11 the special legal terms applicable are:
Line 9: iš-tu bi-e a-di urâṣim - from the straw up to the gold.
Line 10: zi-zu-ú ga-am-rum - the division is completed.
Line 12: ú-ul i-ra-ga-am - brother against brother will not raise a complaint against
another.
In S12 the special legal terms present are:
Lines 6-9: zitti ib-ni-ilušamaš ša itti sin-i-ḳi-ša-am ù ìr-ra-na-ṣir i-zu-ú-zu - is the
inheritance share of Ibni-ṣamaš, Sin-iḳ šam and Irra-n ir.
Line 10: iš-tu bi-e a-di urâṣim - from the straw up to the gold.
Line 9: zi(!)-zu-ú - the division is completed.
Line 12: a- u-um a-na a- i-im ú-ul i-ra-ga-am - brother against brother will not raise a
complaint against another.
326
In S13 the following special legal terms occured in the text:
Line 5: zitti ìr-ra-na-ṣir - is the inheritance portion of Irra-nâṣir.
Lines 6, 8: ša itti sin-i-ḳi-ša-am ù ib-ni-ilušamaš i-zu-ú-zu - which he received by division
with Sin-iḳîšam and Ibni-Šamaš.
Line 9: iš-tu bi-e a-di urâṣim - from the straw up to the gold.
Line 10: zi(!)-zu-ú ga-a-rum - the division is completed.
Lines 11-12: a- u-um a-na a- i-im ú-ul i-ra-ga-am - brother against brother will not raise
a complaint against another.
In S14 the special legal terms present are:
Line 7: a-la mu-na-nu-um dumu dEN-ZU-ni-ia -is the share of Munanum, son Sin-nia.
Line 8 ša ki ú ki-i-din-nam šeš-a-ni - with Idinam his brother.
Line 9: i-zu-zu zi-zu ga-am-ru - they divided, they shared, the division is completed.
Line 10: ud-kúr-šè a- u-um a-na a- i-im - brother to brother they will not return.
Line 11: ú-ul i-ra-ga-am - they will not lay a word against each other.
In S15 the following special term is present:
Line 6: zitti la-ma-zi zêrmašitim - is the inheritance share of Lamâzi, the zêrmašîtu
priestess.
In S16 the special legal terms are:
Line 5: zi-zu - divided.
Line 5-6: iš(!)-tu bi-i a-na urâṣim - from the straw up to the gold.
Line 7-8: a- u-um a-na a- i-[im] ú-ul i-ra-[ga-am] - brother against brother will not raise
a claim against each other.
In S17 special legal terms that were mentioned are:
Lines 6-7: ki-ma 5 šiḳil k[aspim] ša bîtam a-pa-li - five shekels of silver as an equivalent
for the house.
Line 11: zitti mâr-ir-ṣi tim [mâr warad-ìr-ra - inheritance share of Mâr-ir itim.
Line 14: i-zu-zu zi-zu ga-am-ru - they have shared, they are finished.
Lines 15: iš-tu bi-e a-di urâṣim - from the straw up to the gold.
Lines 16-17: a- u-um a-na a- i-im ú-ul i-ra-ga-am - one will not complain against other.
327
In S18 the special legal terms present are:
Lines 11-12: zitti li-bi-it-íštar [a- i-šu] ša
ilu
sín-ma-gir i-zu-zu-šu - it is the share of the
inheritance of the Lipit Ištar, [of his brother] which Sin-mâgir to him has assigned.
Line 13: zi-zu ga-am-ra - they have shared, they are finished.
Line 14-15: a- u a-na a- i ú-ul i-ra-ga-am - one against the other will not raise
complaint.
Lines 16-17: a-na a- i-šu-nu ša i-la-ku-ni i-za-zu - they answer for their brothers who will
(still come).
In S19 the special legal terms are:
Line 17: iš-tu bi-e a-di urâṣim - from the straw up to the gold.
Lines 18-19: a- u-um a-na a- i-im ú-ul i-ra-ga-am - one will not raise a complaint against
another.
Line 16: zi-zu ga-am-ru - they have shared, they are finished.
Line 9: zitti - share of X.
In S20 the following special legal terms are present:
Lines 8, 10, 11: i-zu-zu-ú - they have divided (shared).
Line 9: zitti – inheritance share of X.
Line 10: ša itti si-na-tum a- i-šu i-zu-zu - which he got with the division with Sinatum, his
brother, as an inheritance share.
Line 11: zi-zu ga-am-ru iš-tu bi-e - they have shared, they are finished.
Line 12: a-di urâṣim a- u-um a-na a- i-im - from the straw up to the gold.
Line 13: ù-ul i-ra-ga-am - one will not complain against the other.
Lines 14-16: niš
ilu
šamaš
ilu
aja
ilu
mar-duk ù a-am-mu-ra-bi in-pá(d)-de
eš
- by ṣamaš,
ja, Marduk und ammurapi they have sworn.
In S21 the special legal terms applicable are:
Tablet (BM 82452)
Line 2: i-zu- uz […] - agreed to the division.
Line 3: [ud]-kúr-šè lú-lú-ú-ra - brother to brother.
Line 4: iuni
nu-um-gá-gá-a - will not speak a word against each other.
Case (BM 82453)
328
Line 12: a-la šu-ì-lí-šu […] - inheritance share of ṣu-ì-lí-šu.
Line 17:i-zu- zu […] - they agree to the division.
In S22 the special legal terms applicable are:
Tablet (BM 16813)
Line 19: [ a-la diškur]-zi-mu - inheritance share of Iškur-zi-mu.
Line 24: i-zu-zu - …… - agree to the division.
Line 25: bi-ta-am ù ba-ši-it é-a-ba - property regarding the house.
Line 26: mi-it- a-ri-iš i-zu-zu - they divided equally and agreed to the division.
Line 27: [zi-zu ga-am-ru iš]-tu pí-e - the division is completed from straw.
Line 28: [a-di guškin a- u-um] a-na a- i-im - to gold brother to brother.
Line 29: [ú-ul i-ra-gu] -um […] - they will not raise a word.
Case (BM 16813 A)
Line 19:
a-la diškur-zi-mu – the inheritance share of Iskur-zi-mu.
Line 24: i-zu-zu – they agreed to the division.
Line 25: bi-ta-am ù ba -ši-it é-a-ba - property regarding the house.
Line 26: mi-it- a-ri-iš i-zu-zu – they agreed to the division.
Line 27: zi-zu ga-am-ru - the division is completed.
Line 28: iš-tu pí-e a-di guškin - from straw to gold.
Line 29: a- u-um a-na a- i-im ú-ul i-ra-gu-um - brother to brother will not raise a word.
In S23 special legal terms that were mentioned are:
Case (BM92659)
Line 8: a-la - inheritance share (awarded divided share).
Line 11: li-ib-ba-šu-nu ṭà-ab - their hearts are satisfied.
Line 13: li-ib-ba-šu-nu ṭà-ab - their hearts are satisfied.
Line 10: zi-zu ga-am-ra-am; and line 12: i-zu-zu zi-zu ga-am-ra-am - they agree to the
division and the division is completed.
Case (BM92659 A) = Case of CT 6 31 b
Lines 12-13: ud-kúr-šè a- u-um a-na a- i-im ú-ul i-ra-gu- mu - in the future brother
against brother will not raise a claim.
In S24 the special legal terms applicable are:
Line 16: i-zu-zu zi-zu ga-am-ru - has agreed to the division and the division is completed.
329
Line 17: li-ib-ba-šu-nu ṭa-ab - their hearts are satisfied.
Line 18: iš-tu pi-e a-di uraṣi - from the straw to the gold
Lines 19-20: ana matima a- u-um a-na a- a-im la iragamu - in future brother against
brother will not have a claim against another.
In S25 the special legal terms are:
Line 10: ziti - share of
Line 14: i-zu-zu - they have divided.
Line 15: zi-zu ga-am-ru - they have shared, they are finished.
Line 16: li-ib-ba-šu-nu tâbab - their hearts are satisfied.
Line 21: iš-tu a-na mi-im-ma mar-ši-it - after concerning all acquisition possession of…
Lines 26-29: ul-maš-zêr] mârûm˹š a-wi-[il-iluadad] ú-ub-bi-[bu] Ukur-Šû – “after
concerning all acquisition possessions of the Awîl-Adad, her father, and the emblem of
the Ellil, in the sanctum of her God Warad-Sin, [you] the elder brother compared with
Sin-idinnam [and Ina-Êulmaš-zêr], the children of the Awîl- dad, has cleansed himself”.
Line 29: a- u a-na a-[ i la ra-ga-]mi-im – (brother to brother) will not raise claims.
In S26 the special legal terms are:
Lines 2, 4, 6 zitti - inheritance share of X.
Line 14: i-zu-zu - they agreed to divide.
Line 26: ú-ul i-ra-ag-ga-mu - brother to brother will not come back to raise a complaint.
(v) Oath clause (king/god)
In Sippar, there were two different sets of oaths. One set appeared at the end of the agreement
where the parties swore to gods or a reigning king and, specifically in Sippar, to the city itself.
The second set consisted of a ceremony. It is referred to under the natural elements heading,
as a legal practice option. This ceremonial oath occured in three texts only. In the normal
oaths, the texts in which they were reflected, were as follow in the table format:
330
Table 17 Outline of oath clause in Sippar division agreements
Sippar oath clause
S1
█
S2
█
█
█
S3
Text damaged
█
S4
█
S5
█
█
S6
█
█
S7
█
█
█
█
█
█
█
S8
█
█
S9
█
█
█
S10
█
█
█
S11
█
█
S12
█
█
█
█
S13
█
█
█
█
█
█
S14
█
S15
█
█
S16
█
█
█
S17
█
█
█
S18
█
█
They answer/vouch for their brothers who still have to come
S19
█
█
█
█
S20
█
█
█
█
S21
█
█
S22
█
█
█
S23
█
█
█
█
S25
█
█
█
S26
█
█
█
S24
Damaged
partis
Sippar
Sînmuballiṭ
Annunitu
m-Sippar
pīl-Sîn
Ammîsaduga
█
Marduk
Ša aš/
Utu
pīl-Sîn
Amartu
Aja
Text
City
Samsuiiluna
King
ammurāpi
God
█
331
(vi) Witnesses names, rank/family standing
The texts regarding witnesses were as follows outline in the table (infra):
Table 18 Outline of witnesses clause in Sippar division agreements
?
█
Profession
ṭupšarrum
dub-sar
Scribe
pan
dumu
pan
?
Status: Son of X
mar
Names
ma ar
Before
igi
Text
█
S1
?
S2
█
█
█
-
S3
█
█
█
priestess
S4
█
█
-
-
S5
█
█
█
-
S6
█
█
█
-
█
█
S7
█
S8
█
█
S9
█
█
-
S10
█
█
-
█
█
█
█
█
-
S12
█
█
█
-
S13
█
█
█
-
█
█
-
█
S15
█
█
S16
█
█
S17
█
█
█
-
S18
█
█
█
-
S19
█
█
█
█
-
S20
█
█
█
█
-
S21
█
█
-
█
█
-
S22
S23
█
lawcommissioner
-
S11
S14
Damaged text
Sippar witnesses clause
█
█
█
S24
-
█
█
█
S25
█
█
█
█
S26
█
█
█
█
-
332
7.4.7.3 Qualities of cuneiform division texts
(i) Language
The language in texts S1-S11, S14-2 are Akkadian and Sumerian, and S12 and S13 in
Akkadian.
(ii) Location
All the texts originated from Sippar
(iii)
ablet’s condition
The conditions of the Sippar tablets are outline as follow in the table (infra):
333
Table 19 Outline of conditions of Sippar tablets
Text
Good
No omissions
Sippar tablet’s condition
Fairly good
Not good
Few lines omitted
Lines omitted
█
S1
█
S2
█
S3
█
S4
█
S5
█
S6
█
S7
S8
█
S9
█
S10
█
S11
█
S12
█
S13
█
█
S14
S15
█
S16
█
█
S17
S18
█
S19
█
S20
█
S21
█
S22
█
S23
█
S24
█
█
S25
S26
Damaged tablet
█
(iv) Number of copies (agreements)
In S1 there was only one agreement, and only one brother’s share was recorded in this
text, namely that of Inbuša.
334
S2 only contained one agreement, dealing with one brother’s awarded divided asset.
S3 had more than one agreement, although only one could be found.
S4 only contained one agreement.
S5 only had one preserved copy; however, since this division agreement only dealt with
one sibling’s divided property, there must have been more than one agreement.
S6 only contained one agreement; the division concerned one of the two sister’s divided
awarded shares.
S7 included probably more than one agreement, but this agreement dealt with only one
sister’s share.
S8 included more than one agreement, but this agreement dealt with only one brother’s
share.
S9 had more than one copy of the agreement, but reference is only made to one brother’s
agreed divided share.
S10 had more than one agreement. See text number S7.
S11, S12 and S13 included three agreements of each brothers’ division. Thus one
agreement for each brother, who each agreed to an awarded share of sole ownership as
recorded on three separate tablets, regarding a division of their father’s estate.
S14 had probably more than one agreement, but only one brother’s share was mentioned
in this text.
S1
included more than one agreement, but only the sister’s awarded assets are
mentioned.
335
S16 had one agreement reflecting all the divided awarded assets, because all the children
agreed to the division of their deceased father’s estate.
S17 contained one agreement. However, this division agreement concerned only one of
the three brother’s awarded assets, as well as the inclusion of a provision regarding their
sister’s usufruct over certain assets received from their mother, of which the brothers were
the bare dominium owners.
S18 contained one agreement, because the brothers/sons agreed to the division of their
deceased father’s estate reflecting all the divided awarded assets.
S19 had only one copy regarding the specific division.
S20 contained one agreement, because the children of the late father and the living
priestess sister agreed to the division of the estates reflecting all the divided awarded
assets.
S21 had more than one agreement, but only one brother’s share was mentioned in this
text.
S22 contained one agreement, because all the children agreed to the division of their
deceased father’s estate reflecting all the divided awarded assets.
S23 had more than one copy, but only one brother’s share is divided in this text.
S24 only contained one copy; however, the division concerned only one asset and one
brother’s awarded divided asset.
S25 only had one copy, although only the nephew’s share to be awarded to him was
mentioned and the household goods were to be administered and maintained by the
brothers as trustees.
S26 mentioned one agreement, because all the children agreed to the division of their
336
deceased father’s estate reflecting all the divided awarded assets.
(v) Date Formula
The date formula in the Sippar texts is thus:
S1-S3, S5, S7, S8 and S9: no date formula was provided due to damaged text
S10 and S23 showed no date formula.
S4: date formulas were present, despite damaged text.
S6: no date formula. However, from the oath clause it can be gathered that this text was
recorded on a clay tablet during the reign of Sinmuba-lí-i . mu íd-{d}tu-tu-hé-gál muun-ba-al. Year (Sîn-muballi dug the canal called ‘Tutu-hegal / Tutu is abundance’.490
S11, S12 and S13, last line: in the year when the canal of Tutu- egal was dug. This was in
Sîn-muballi ’s 1
th
regnal year (Babylon).
S14: Present: U.E 27
u
utu diškur-ra - year after ṣamaš and
d
dad. This was in Sîn-
muballi ’s 19 regal year. Also translated as: year after the year the daises of ṣamaš and
th
Adad.491
S15: The following clause was present: lines 29-30:
u a-mu-ra-bi nig-si(!)-di gar-ra -
in the year, in which king ammu-r pi a mercy act ˹ has remitted. This was in
r pi’s nd regal year Babylon . Also translated as: year in which
ammu-
ammu-r pi the king
established justice or released of forced labour in his land.492
S16, line 17:
u íd
a-am-mu-ra-bi: in the year
ammu-r pi dug the canal called
490
(Old Babylonian Date Formulae) http://cdli.ucla.edu/tools/yearnames/HTML/T12K5.htm. Cited 2
February 2012.
491
(Old Babylonian Date Formulae) http://cdli.ucla.edu/tools/yearnames/HTML/T12K5.htm. Cited 2
February 2012.
492
(Old Babylonian Date Formulae) http://cdli.ucla.edu/tools/yearnames/HTML/T12K6.htm. Cited 2
February 2012
337
‘ ammu-rabi-hegal’. This was in
bi-hé-gál: year
ammu-r pi’s 9th regal year. mu íd-ha-am-mu-ra-
ammu-r pi dug the canal called
ammu-rabi-hegal /
ammu-r pi is
abundance’.493
S17, lines 31 & 32: wara šabâṭim [ûm 10kam] šattum nâr ti-ši-it- iluellil-lá(l) - year of the
ammu-r pi of Babylon’s 4th regal year: mu íd-
channel Tisît-Ellil. This was during
d
en-líl: year the canal of Enlil (was dug).494
S18, line 28: mu ugnim nim-ma[ki] - year of the army of Elam. This was in the 30th regal
year of
ammu-r pi. The year-formula is translated as: year
ammu-r pi the king, the
mighty, the beloved of Marduk, drove away with the supreme power of the great gods, the
army of Elam who had gathered from the border of Marhaszi, Subartu, Gutium, upliaš
Ešnunna and Malgium who had came up in multitudes, and having defeated them in one
campaign, he ( ammu-r pi) secured the foundations of Sumer and Akkad.495
S19: in month Abum, the 22nd day.496 Lines 32-34: mu bád ma-riki ù mà-al-gí-aki muun-gul-gul: in the year in which the walls of Mari and Malgûm were destroyed. This was
in
ammu-r pi from Babylon’s
ath regal year. Also translated as: year in which
ammu-r pi the king by the orders of An and Enlil destroyed the city walls of Mari and
Malgium.497
S20, line 31: in ṣab um, around, in the year in which the wall was destroyed of Mari.
This was in ammu-r pi of Babylon’s
Mari and Malgium”.
b regal year. Stated as “the year the city walls of
498
S21: regarding the month formula - in the month of the du6-kù festival, the 14th day.499
Regarding the year name: on tablet (BM 82452) lines 18-19: mu ki-lugal-gub ur-sag íd
493
(Old Babylonian Date Formulae) http://cdli.ucla.edu/tools/yearnames/HTML/T12K6.htm. Cited 2
February 2012.
494
(Old Babylonian Date Formulae) http://cdli.ucla.edu/tools/yearnames/HTML/T12K6.htm. Cited 2
February 2012.
495
(Old Babylonian Date Formulae) http://cdli.ucla.edu/tools/yearnames/GLOSSAR/T10K07Y08.htm. Cited
2 February 2012
496
Cf. Cohen (1993).
497
(Old Babylonian Date Formulae) http://cdli.ucla.edu/tools/yearnames/HTML/T12K6.htm. Cited 2
February 2012
498
(Old Babylonian Date Formulae) http://cdli.ucla.edu/tools/yearnames/HTML/T12K6.htm. Cited 2
February 2012
499
See discussion by Cohen (1993:109).
338
sìla didli bi – in the year the king made representation of a mountain which bring plenty.
This was in the 8th year of Samsu-iluna of Babylon. Also translated as: year in which
Samsu-iluna the king made royal plateforms in copper with representations of a mountain
and streams which bring plenty and abundance and fixed their place for the marvel (of the
people) in the large courtyard of the Eturkalama in front of An and Inanna.500
S22: regarding the month formula - in the month of ṣe-kin-tar, the 30th day.501 Regarding
the year name - in the year King Samsu-iluna. Tablet (BM 16813), lines 3-4: year in
which Samsu-iluna the king restored the ziggurat, the magnificent dwelling place of
Zababa and Inanna. This was recorded during King Samsu-iluna’s
nd regal year. Also
translated as: year in which Samsu-iluna the king restored the ziggurat, the magnificent
dwelling place of Zababa and Inanna, and its 16 statues.502
S24: date formulas were present, but the text was omitted and the formulas could not
properly be determined.
S25: in the year in which King Ammi-saduga built at the mouth of the Euphrates the great
wall, i.e. during King Ammi-saduga in his 11bth reign.503 Also translated as: year in
which mmī- aduqa, the king, built the great wall, rising like a mountain on the mouth of
the Euphrates.
S26: in the year, in which King Ammî-saduga, at the exalted command of ṣamaš, his
king, dug a canal and called it Ammî-saduga.504 This was recorded during Ammi-saduga
16th reign. Also translated as: year (Ammî-saduga) dug, at the exalted command of
Szamasz / Marduk his king, dug a canal and called it ‘Ammî-saduga, provides abundance
for the people’.
(vi) Seal impressions
500
(Old Babylonian Date Formulae) See http://cdli.ucla.edu/tools/yearnames/HTML/T12K7.htm. Cited
February 2012
501
Cf. discussion by Cohen (1993:54-55).
502
(Old Babylonian Date Formulae) http://cdli.ucla.edu/tools/yearnames/HTML/T12K7.htm. Cited
February 2012.
503
(Old Babylonian Date Formulae) http://cdli.ucla.edu/tools/yearnames/HTML/T12K10.htm. Cited
February 2012.
504
(Old Babylonian Date Formulae) http://cdli.ucla.edu/tools/yearnames/HTML/T12K10.htm. Cited
February 2012.
2
2
2
2
339
The seal impressions in the Sippar texts were thus:
S1, S2, S6 and S9 display no seal impressions, as the tablets were damaged.
to be none.
S4: A damaged tablet.
S7: There are seals on Case (BM 92658 A = Case of CT 6 42b.
S10-S16; S18, S23, S24 and S26 bear unknown seals, whereas on tablet S25 there seem
S3: Seals are unknown.
S5: A seal is present; however, it is unknown.
S8: Uninscribed seals are present.
S19: Seals are present.
S17: A seal with the contractual parties’ names on it is present.
S20: Seals of the contractual parties are present.
seen.
S21: There are seals, although broken and in some instances only traces of a seal can be
S22: Seals are present.
(vii) Rhythmic sequence: essential elements.E1-5 and natural elements N1-N12
The essential elements comprise the following outline with the following texts (see Appendix
G):505
Sippar seq E.1 - Estate owner: deceased father (DF), contractual party: brothers (B)*. See
in this regard the following texts and in brackets in which king’s reign the recording was
done, namely: S1 (Sîn-iddinam); S2 ( pīl-Sîn); S8 (Sîn-muballi ); S11 (Sîn-muballi );
S12 (Sîn-muballi ); S13 (Sîn-muballi ); S14 (Sîn-muballi ); S18 ( ammu-r pi); S22
(Samsu-iluna); S23 (Samsu-iluna); S24 (Samsu-iluna); S25 (Samsu-iluna) and S27
( mmī- aduqa).
Sippar seq E.2 - Estate owner: deceased father (DF), contractual party: sister/s (S) and
brother/s (B)*. See the following texts S5 ( pīl-Sîn); S9 (Sîn-muballi ); S15 ( ammu-
505
Abbreviations: B brother, CP contractual party, DO deceased owner, F father, M mother, N nephew, P
priestess, PB predeceased brother, S son, U uncle.
340
r pi); S16 ( ammu-r pi) and S20 ( ammu-r pi).
Sippar seq E.3 - Estate owner: deceased father (DF) and deceased mother (DM),
contractual party: sister/s (S) and brother/s (B). See the following texts S3 ( pīl-Sîn) and
S17 ( ammu-r pi).
Sippar seq E.4 - Complex family relationships – combination of 1-3. This complex family
relationship combination is reflected as follows in the following texts: S4 ( pīl-Sîn) as
DF:N?; S6 (Sîn-muballi ) as DM:PS; S7 (Sîn-muballi ) as DM:PS; S10 (Sîn-muballi ) as
DM?:S*1; S19 ( ammu-r pi) as DF:N,PS,B,S*1; S21 (Samsu-iluna) as DF:B,N and S26
( mmī- aduqa) as DF:B,N.
The natural elements sequences are divided into the following groups:
Sippar seq Nat 1: 4,5,6,7,12 (Nat 4 heart is satisfied; Nat 5 completely divided; Nat 6 no
claim; Nat 7 oath; Nat 12 witnesses), the elements occur in texts: S1, S3, S5, S7, S8, S23 and
S24.
Sippar seq Nat 2: 5,6,7 and 12 (Nat 5 completely divided; Nat 6 no claim; Nat 7 oath; Nat 12
witnesses), the elements occur in texts: S2, S9, S11, S12, S13, S14, S16, S18, S20.
Sippar seq Nat3compl: in the combinations of 2, 3, 4, 5, 6, 7, 10, 11 and 12, in which Nat 7
(an oath) and Nat 12 (witnesses) are predominantly and Nat 5 (completely divide) and Nat 6
(no claim) occur. The elements occur in texts as follows: S4 (Nat 5,7,12); S6 (Nat
5,6,7,11,12); S10 (Nat 7,12); S15 (Nat 7,12); S17 (Nat 2,5,6,7,11,12); S19 (Nat 5,6,7,11,12);
S21 Nat 6,7,12; S22 (Nat 5,6,7,9,12); S25 (Nat 5,7,10,12) and S26 (Nat 3,6,7,12).
7.4.7.4 Summary
See table outline (infra) regarding a synoptic comparison of the different incidental elements
of Old Babylonian Sippar.
341
Table 20 Outline of the incidental elements of Sippar division agreements
SIPPAR
Division agreement of a deceased family member’s estate
Recorded division agreement
Incidental elements:
“exterior and interior decorations” of the “house”
e.g. paint colour combinations, type of windows and doors,
floor tiles, carpets, house lights
Written formalities of agreements
I1
The names of the parties and their relationship to each other.
Names of
contractual
parties, rank
I2
Birth order of
brothers
No birth order rankings of the contractual parties.
I3
Description of
awards/assets
Property was accurately noted and discussed in detail. In some texts, only
the more valuable items were mentioned as divided such as immovable
property and slaves.
I4
Special legal
terms
I5
Oath clause
(king/god)
zu-zu-šu-um zi-zu ga-am-ru - they have shared, they are finished.
li-ba-šu-nu ṭâbab - their hearts are satisfied.
[ú]-ul i-tu-ru-ú-ma - will not complain and come back.
a-la - inheritance share of X.
zitti - share of X.
niš in-pá(d)-de eš by X, X they have sworn.
In Sippar, there are two different sets of oaths, namely:
Normal oath clause,
Ceremony-clause.
I6
Witnesses
Names of witnesses without status and the sometimes name of the scribe.
Professions include: priestess and law commissioner.
I 7 Language
I 8 Location
I 9 ablet’s
condition
I 10 Number of
copies
I 11 Date
formula
I 12 Seals
impressions
I 13 Rhythm
sequence/
Qualities of texts
The language in texts S1-S11, S14-26 are Akkadian and Sumerian and in
S12 and S13 written in Akkadian.
Sippar.
Majority fairly good with a few texts which are damaged.
In 65%: one copy except for S8, S9, S10, S11, S12, S13, S15, S21 and
S23.
Date formulas in majority of the texts.
In 84% texts except for the damaged texts S1, S2, S6 and S9, which
display seal impressions.
See Appendix G.
342
The names of the contractual parties were largely reflected in the Sippar documents.
There were no birth orders, probably because it seemed unnecessary, as there were no
noticeable preference portion practices in the agreement.
The description of the property is limited to only the information necessary to identify the
assets. In a few texts, however, there were some descriptions although still not elaborate.
There were specific terms used in the Sippar texts, expecially the two symbolic expressions
of: “heart is satisfied”, and in a few texts, “from straw to gold”.
The oath clauses, as well as the witness clause, are clauses that were always included in the
Sippar texts, but the types of gods, which were sworn, differ. As regards Sippar, the city was
also sworn to. Thus, in a few texts the oath was to one or two gods, the reigning king and the
city itself. In other texts, only the gods and the king were sworn to or in any variant of: gods,
and/or king, and/or city of Sippar.
In contrast with the other city-states, there are three texts depicting a ceremonial oath
procedure in a temple.
In all of the texts, witness clauses were recorded; however, there are different variants. The
main being: names of witnesses without their statuses, or the name of the scribe (ṭupšarrum),
names of witnesses with their statuses (son [dumu] of X), names of witnesses with their
statuses (son [dumu] of X and with a scribe [dub-sar]), and witnesses with their names and
statuses (son mâr of X).
The language was predominately Akkadian with a few Sumerian words.
Some of the tablets are damaged, although the most important details of the agreements could
still be assessed.
An exception in the Sippar texts was the practice of reflecting only one contractual party’s
agreed awarded assets, in one recorded clay tablet; by implication the other brothers’ agreed
portions were recorded on separate clay tablets. A good example of this practice can be seen
343
in S11, S12 and S1 , where the three brothers’ awarded portions were reflected, each in a
separate recording.
Most of the twenty-six agreements contain a date formula and seal impressions are present.
7.5
CONCLUSIONS
The chosen forty-six division agreements are individually compared to each other as part of a
group in each city-state. It is established that all forty-six agreements are family division
agreements from a deceased estate and that there are certain law practices and scribal school
traditions that are predominantly part of each city-state, with some discrepancies.
In the abridged comparison tablets (infra), an outline is given of the essential elements, then
the natural elements and, lastly, the incidental elements. This serves as an aid to give the
reader an overall view of the different elements of which the magnitude of its information
may leave the reader lost in detail.
In the abridged table comparison of the essential elements, it is evident that all twenty-six
division agreements qualify as family division agreements from a deceased estate. However,
in each city-state there are unique characteristics of the type of family connection, the
identity of the deceased estate owner, the different terminologies used with the term “mutual
consent” and some differences in the method of the division.
344
Table 21 Abridged comparison table: essential elements of all three city-states
Division agreement of a deceased family member’s estate
Oral division agreement reflected in recording on tablet
Essential elements:
Basic require ents “to be a house”
“building aterials” for a house e.g. walls, roof, windows, door
Family
connection
Deceased
estate
owner
Estate
assets
Mutual
consent
Raison
d’être
LARSA
Brothers and sisters.
NIPPUR
Brothers, nephew and an
uncle, daughter /
granddaughter.
Father’s estate, one text Father’s estate
mother
or
father’s (elementary division)
estate; and in one other Two estate properties
text: uncle.
were divided among
family members
(complex division).
Whole of the estate is Whole of the estate is
divided:
divided:
many valuable
varieties of assets,
assets,
mostly involving
edadi-ship.
variety of assets.
zi-i-zu (Akkadian) and ìba-e-ne (Sumerian).
Means: exchanges and
donations; lesser extent:
“bringing in”.
Supported by: casting of
lots and equal division
of the estate.
še-ga-ne-ne ta and ba
(Sumerian).
Means: exchange and
“bringing in”, sometimes
donation (small scale).
Supported by: in-na-anbúr: balancing the value
of each deceased estate
asset awarded to a
beneficiary as a quid pro
quo in conjunction with
the rule of preferenceportion (gišbanšur zaggú-lá síb-ta mu-namšeš-gal-šè)
and
the
giš
casting of lots ( šub-bata in-ba-eš).
SIPPAR
Brothers, sisters (some
of whom are different
kind of priestesses).
Father and in some texts
mother’s estate; one
text both parents’
estates.
Whole of the estate is
divided:
terms such as “from
straw to gold”, and
“as much as there
is”,
description of a
variety of assets
including houses,
fields, slaves and
other movable
property .
i-zu-zu (Akkadian).
Means:
mainly
an
exchange, “bringing in”
donation.
Supported by: casting of
lots.
345
In the abridged table (infra), comparison of natural elements represents the law practices in
the each city-state. Some of the law practices are inclusive to a particular city-state. For
instance, in Sippar the law practices of a trust, usufruct, oath in the temple and the symbolic
expressions of “from straw up to gold” and “their heart is satisfied”. In Nippur, there is the
predominant preference rule together with the division by lots and “bringing in”. Larsa have a
predominantly “division in equal parts”-statement.
Table 22 Abridged comparison table: natural elements of all three city-states
Division agreement of a deceased family member’s estate
Oral division agreement reflected in recording on tablet
Natural elements: texts
Law tradition practices
”type of structure of house” e.g. double-storey house, patio
Nat 1
Adoption/support
Nat 2
Bringing in
LARSA
None.
NIPPUR
N4 (10).
Three texts: L4, L6,
L8 (30%).
Six of the ten texts (60%) One text, S17
However N3, N7, N9 and (3.8%).
N10 contain no búr
clause.
Occurs in eight of the ten giššub-ba in only
one text, S26
texts (80%).
(3.8%).
Nat 3
Four texts (40%):
Division by lots/in L5 giššub-ba ì-šubgood will
bu-ne-eš
L6 & L8 Akkadian
variant išqu.
L10 as much as there
was, and by the
casting of lots.
Mentioned twice
together with each
brother’s awarded
divided assets.
Nat 4
None.
Heart is satisfied
Nat 5
Four texts: L2, L4,
“as much as there is”/ L7, L10 (40%).
“completely divided”/
“from straw to gold”
Nat 6
Nine texts except for
No claim
L3 (90%).
SIPPAR
None.
None.
8 Texts (30.7%).
None.
In 84% of the texts
except for 4 of the
26 texts: S10, S15,
S21 and S26.
In 84% of the texts,
except for 4 of the
26 texts S4, S10,
S15, S25.
The claim clause occurs
in the following texts
(50%).
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Division agreement of a deceased family member’s estate
Oral division agreement reflected in recording on tablet
Natural elements: texts
Law tradition practices
”type of structure of house” e.g. double-storey house, patio
NIPPUR
The normal set of oaths,
usually found at the end
of agreements, is
reflected in the Nippur
texts, except in N6 (due
to damaged text), N8 and
N10 (70%).
One text: L10 (10%). Seven of the ten texts
(70%).
Six texts: L3, L4, L6, None.
L7, L8, L9 (60%).
SIPPAR
All 26 texts (100%)
normal oath.
In 3 texts oath in
temple (11.5%).
Nat 10
Trust (trustee)
None.
None.
One text, S25
(3.8%).
Nat 11
Usufruct
None.
None.
Three texts S5,
S17, S19 (11.5%).
Nat 12
Witnesses
All ten texts (100%). All of the ten texts
(100%).
Nat 7
Oath in temple/oath
Nat 8
Preference portion
Nat 9
Shares: equal clause
LARSA
Oath in temple: None
Oath in all 10 texts
(100%).
None.
One text S22
(3.8%).
All the texts are
witnesses (all texts)
ma ar/igi/pan
(100%).
The incidental elements explaining the scribal school practices of the different city-states are
outlined in the abridged table (infra), regarding firstly the written requirements and then a
comparison of the qualities of the texts reflecting each city-state’s differences and similarities.
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Table 23 Abridged comparison table: incidental elements of all three city-states
Division agreement of a deceased family member’s estate
Recorded division agreement
Incidental elements:
“exterior and interior decorations” of the “house”
e.g. paint colour combinations, type of windows and doors,
floor tiles, carpets, house lights
LARSA
Written formalities of agreements
I1
Names of the contractual
parties and their
Names of
contractual
relationship to each other
were mentioned in each
parties, rank
text.
I2
Only in text L10 (10%).
Birth order of
brothers
I3
There are fairly good
Description of descriptions of the
awards/assets properties with
description of their
boundaries in relation to
the unit.
I4
Special legal
terms
NIPPUR
SIPPAR
The names of the
contractual parties are
mentioned in all of the
ten texts.
The names of the parties
and their relationship to
each other were
mentioned.
Birth order ranking is
prominent (70%).
No birth order rankings
of the contractual
parties.
Detailed descriptions
and measurements of
assets referring to
neighbouring properties
and natural boundaries
are included and
detailed descriptions of
movable properties.
ì-ba-e-ne - they divided. ni-ba-e-ne: they shall
mi-it-ha-ri-iš i-zu-uz4-zu divide into equal parts
- they agreed to the
še-ga-ne-ne-ta in-ba-eš
division and divided the - by mutual agreement
estate equally.
have divided.
ur-sè-ga-bi [ì-ba-e]-ne they [have divided the
a-la-la - the
estate] into equal parts.
inheritance portion of
é-a-ni ba-bé-e-eš – they
agree to the division of
ur-a-sì-ga-bi in-ba-eš the houses.
have divided into equal
a-la: is the inheritance parts.
share of
nam-ibila: - The
beneficiary of X.
giš
giš
banšur zà-gu-la 1
banšur-zag-gu-lá IV
giš
giš
banšur tur –
liš - one zaggula
preference portion
bowl.
ús-a-du síb-ta-na –: all
the above being the
inheritance portion X.
síb-ta garzá a-na-mebi: the preference
Property was accurately
noted and discussed in
detail. In some texts,
only the more valuable
items were mentioned as
divided such as
immovable property and
slaves.
zu-zu-šu-um zi-zu gaam-ru - they have
shared, they are
finished.
zitti - share of
a-la - inheritance share
of
zi-zu ga-ab-ru-um buru-ma - they divide the
estate and finished the
division.
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Division agreement of a deceased family member’s estate
Recorded division agreement
Incidental elements:
“exterior and interior decorations” of the “house”
e.g. paint colour combinations, type of windows and doors,
floor tiles, carpets, house lights
LARSA
NIPPUR
SIPPAR
portion of whatever
temple offices there are;
and ibila: the
beneficiaries (heirs) of
X.
búr - in balance; munam-šeš-gal-šè - right
of primogeniture
ki-búr-ru - (additional)
payment for.
giš
šub-ba ì-šub-bu-ne-eš giššub-ba-ta in-ba-eš –
casting by lots
- casting of lots.
i-na mi-it-gu-ur-ti-šu-nui-na is-qí-im i-zu-ú-zu –By mutual agreement in
equal parts, they carried
out the division by
casting lots. (Larsa išqu).
ma-na kù-babbar ta-appi-la-at bi-tim - and 5/6
mina of silver as
compensation for the
house.
šeš-a-ne-ne ba-ani-ibu4-kúr-šè šeš šeš-ra
ge4-ge4-ne his brothers a-na a- a-tum ú-ul i-rainim-ma nu-gá-gá –
shall not raise any
ga-am – brother to
brother against brother
claims against him.
brother will not
will not lodge a claim
complain against one
against another.
mu lugal-bi in-pá ŭanother.
mu (names of gods and kúr-šú lù-ù-ra nu-gígí-dé: In future neither niš... in-pá(d)-de eš
king) in-pàd- eš
by... they have sworn
shall have power to
revoke the agreement
é kiri6 giškár nì-šu-gal*
nì*-gá*-gál-la ša adda-ne ì-ba-e-ne movable ground,
orchard, furniture, goods
and liquidities as much
as there was, which
belonged to their father,
they divided.
iš-tu pí [e a-di] guškin
- “from straw to gold”.
li-ba-šu-nu ṭâbab - their
hearts are satisfied
349
Division agreement of a deceased family member’s estate
Recorded division agreement
Incidental elements:
“exterior and interior decorations” of the “house”
e.g. paint colour combinations, type of windows and doors,
floor tiles, carpets, house lights
I5
Oath clause
(king/god)
I6
Witnesses’
names,
rank/family
standing
LARSA
King and gods:
Kings Rīm-Sîn,
ammu-r pi or Samsuiluna
Some instances by the
god/gods S n, ṣamaš,
Nanna or Marduk.
NIPPUR
Oath clause in 70% of
the texts. The parties
swore an oath in the
name of the king.
SIPPAR
In Sippar, there are two
different sets of oaths.
One set: at end of
agreement: oath to gods
or a reigning king and,
specifically in Sippar, to
the city itself.
The second set: in text,
a ceremony. It is
referred to under the
natural elements
heading, as a legal
practice option. Occurs
only in three texts.
The witnesses with their
rank and standing e.g.
(son of X).
Professions mentioned:
merchant, surveyor and
builder.
In N1, N7, N8, N9 and
N10 the witnesses’
names and their statuses
are mentioned.
Professions mentioned:
scribe, seal engraver,
soldier and overseer.
Names of witnesses
without status and
sometimes the name of
the scribe. Professions
mentioned are priestess
and law-commissioner.
Qualities of texts
LARSA
I 7 Language L1, L2 and L9 are
written in Akkadian and
Sumerian
Remainder of the texts in
Sumerian.
I 8 Location
Larsa
I9
Fairly good conditions
ablet’s
all of the tablets with a
condition
few omitted lines due to
damaged tablets.
I 10
100% of all the
Number of
agreements were
copies
recorded on one tablet.
I 11 Date
formula
NIPPUR
The language is
Sumerian in texts N1 –
9, whereas in text N10 it
is Sumerian with some
parts in Akkadian.
Nippur
The majority of the texts
are in a good condition.
SIPPAR
The language in texts
S1-S11, S14-2 are
Akkadian and Sumerian
and in S12 and S13
written in Akkadian.
Sippar
Majority fairly good
condition with a few
texts which are
damaged.
100% reflect only one
In 65%: one copy
copy of the complete
except for S8, S9, S10,
recording of the
S11, S12, S13, S15, S21
agreement.
and S23.
Date formulas in all of
The date formula occurs Date formulas in
the texts, except for L10. in all ten of the Nippur majority of the texts.
texts.
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Division agreement of a deceased family member’s estate
Recorded division agreement
Incidental elements:
“exterior and interior decorations” of the “house”
e.g. paint colour combinations, type of windows and doors,
floor tiles, carpets, house lights
I 12 Seals
impressions
I 13 Rhythm
sequence
LARSA
Seal impressions in all of
the texts, except for L10
(90%).
See Appendix G.
NIPPUR
Seal impressions were
pressed on all of the
clay tablets. In text N1
seals were especially
made for the agreement.
(100%).
See Appendix G.
SIPPAR
In 84% of texts, except
for the damaged texts
S1, S2, S6 and S9 which
display seal
impressions.
See Appendix G.
The details of the Larsa L1-L10, Nippur N1-N10 and Sippar S1-S26 texts as reflected in Part
C, outline the essential, natural and incidental elements, presented by means of specific terms
and clauses within the context of each agreement, to constitute each agreement as a family
deceased division agreement with their unique law practices and scribal school traditions.
In the next chapter, a comparative study between all three of the city-states is undertaken,
reflecting on all these categories and sub-categories. The focus is an in-depth comparison of
the attributes in the drafting of division agreements between the different city-states.
351
352
PART B
CONTENT ANALYSIS AND TYPOLOGICAL COMPARISON STUDY
CHAPTER EIGHT
COMPARISON OF FAMILY DECEASED DIVISION AGREEMENTS
ACROSS THE CITY-STATES: NIPPUR, SIPPAR AND LARSA
“Perhaps there is no limit to the stories we can tell? In addition, accepting
that our stories cannot be reduced to one master-story may seem like failure
to som˹ who n˹˹d th˹ com˺ort o˺ an answ˹r to li˺˹’s qu˹stions. Conversely,
however, accepting that we are destined to offer interpretations and
reinterpretations also implies that being human has to do with continual
change, with events and projects, with dialogue and interpretation... and with
the need to construct structures of orientation; hence the law”
(Morrison 1997:14).
In a jurisprudential content analysis of the recorded Old Babylonian division
agreements, unique legal practices and scribal traditions in the Old
Babylonian city-states of Larsa, Nippur and Sippar came forth. Each citystate has its own philosophy and styles of management of the division of the
communal property, as well as scribal school traditions. Notwithstanding
the differences, some similarities exist, including the basic requirements
named as essential elements signifying a certain type of agreement to be a
family division agreement from a deceased estate.
8.1 INTRODUCTION
In this chapter, a comparison is made of forty-six chosen division agreements in three
city-states: namely, ten texts from Larsa, ten from Nippur and twenty-six from Sippar. By
means of the analysis-model, the details of the agreements are arranged in different categories
of basic requirements termed essential elements, a category for the legal practices, known as
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natural elements and, finally, a category identified as incidental elements for the various
scribal school traditions whose components govern the recording of the agreement.
This chapter considers the discussion and outline of the comparison of elements in Chapter 7,
as well as offering comparisons between the said three Old Babylonian city-states.
8.2 ESSENTIAL TERMS IN DIVISION AGREEMENTS
8.2.1
Introduction
The essential elements, which are the basic requirements, are those necessary to classify an
agreement as a division agreement. These elements have already been established in Chapter
7, and all forty-six agreements comply in this respect.506 This chapter outlines the differences
and similarities between Old Babylonian Larsa, Nippur and Sippar.507
8.2.2 Family connection of the contractual parties or co-owners
In Larsa, Nippur and Sippar, the family deceased division agreement is an agreement between
family members, usually brothers, as contractual parties.
In six of the ten Larsa texts, brothers are contractual parties, while in only a few texts other
family members, of whom the majority are sisters, are included as contractual parties in the
particular agreement.
In Sippar, in twelve of the twenty-six texts, brothers are contractual parties in the family
deceased division agreement.
In Nippur, in six of the ten agreements the brothers agree to a division agreement. As a rule
in Nippur, no sister is a contractual party, although in one text a daughter of the deceased
owner is.
506
See Chapter 7 in the footnotes, as well as Part C of the discussion and outline of the different elements
which a scribe in each text used, in the scribe’s expression of the different terminologies reflecting a family
connection, type of estate owner, description of estate assets, mutual consent and reasons for the division.
507
See figure 14 in the conclusions-section of this chapter to understand the logical flow of the differences
and similarities of the essential elements of Larsa, Nippur and Sippar.
354
In Larsa, in three texts sisters are contractual parties while in Sippar, in eleven of the twentysix Sippar texts a sister is a contractual party in a division agreement. The majority of these
sisters hold the title of priestess; in each text, the unique relationship with the family was
portrayed in the manner of limited rights over or the type of division of the estate assets.
Texts S3, S5, S6 (usufruct), S7, S10, S15, S17 (usufruct), S19 (usufruct) and S20 refer to
situations where the different priestesses were contractual parties, including nadītum of
ṣamaš, sal-me priestess of ṣamaš, ḳadištim, qadištu priestess and a sister, ḳadištim priestess
and a sister who is a ṣamaš priestess. In the other texts S9 and S16, the contractual parties are
identified only as sisters.
In the Sippar, Larsa and Nippur texts, other members of the family are also contractual
parties, although these are an exception to the rule. In the succeeding Nippur texts the other
family members are: in N2, brothers or a nephew and an uncle; in N5, nephew and uncle; in
N9, brothers and nephews; in N4, the parties, although not of blood relationship, agree by
means of an adoption agreement that at the death of the father, his adopted daughter will
receive her inheritance from his estate. In Larsa, in text L9, a nephew/cousin is nominated.
In Sippar S4, possible nephews, in S21, brothers, a nephew and uncle and in S25, nephew and
brothers are contractual parties.
8.2.3
Estate owner/ Benefactor: father/mother/other kinship relationship
In eight of the ten texts of Larsa, the deceased father’s estate is divided; in two texts, both
parents’ deceased estates are included in the agreement, where sisters are also the contractual
parties. In the Larsa texts, there is no instance in which a deceased woman’s estate alone is
divided.
In Sippar, the late father is the deceased estate owner in twenty-one texts whereas the late
mother’s estate is referred to in only five Sippar texts. In two Sippar texts, S17 and S3, both
parents’ estates are divided wherein a sal-me priestess of ṣamaš in text S17 and and in text S3
a nadītum priestess of ṣamaš are contractual parties. In three Sippar texts, where the mother
is the only deceased owner, it is an agreement concluded between women only, all of whom
are priestesses. In text S6, a ḳadištim priestess and a sister, a ṣamaš priestess, are identified
and in S7, a qadištu priestess and a sister are contracting parties. In S10, a ḳadištim priestess
and her sisters are contractual parties to the agreement. In conclusion, thus in Sippar we found
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texts where only a deceased mother’s estate is divided, and in these instances, all the
contractual parties are priestesses.
In Nippur there seem to be two different types of estate division: initially an elementary
division is found in most of the texts where only the deceased father’s estate is divided, but
followed by a more complex division of the deceased estate where two deceased estates are
divided. In the latter instances, the deceased father and his predeceased brothers (uncles)
appear in texts N5 and in N9 of the estates of a deceased father and his predeceased brother
(uncle and father). In one Nippur text, N4, the estate owners were a mother and grandmother.
However, in Nippur a mother is not generally regarded as a deceased owner.
8.2.4
Estate assets: fully or partially divided
In the Larsa texts, most of the valuable assets are divided, although there are some variations
to the assets.
In Nippur, in nine of the ten estates there were vast estates and varieties of assets mentioned,
mostly involving edadi-ship (custodianship). In one estate, N8, only the edadi-ship was
mentioned. In all nine of the estates, it seems that the whole of the each estate was divided. In
most of the Nippur estates, the edadi-ships were important assets awarded to contractual
parties.
In Sippar, references to the assets are more elementary. Unlike Nippur, in most of the texts
there is not an elaborate description of the assets. In the majority of the recordings the only
one recorded was a text of only one of the contractual parties’ awarded share in the
agreement.
lthough there are symbolic terms present, such “as straw to gold” and “as much
as there is”, these indicate the possibility that everything of value from very minor to very
expensive were divided. The conclusion can be drawn that other recordings of the other
brothers’ shares did exist, although these have not been discovered in excavations.
8.2.5
Mutual Consent
The beneficiaries of the deceased paternal estate agree to the terms and conditions of the
agreement. The terms used are: “they carry out the division” or “they agree to” or “they
356
mutually agree’ or “they divide”. This express a mutual agreement by the contractual parties
to the division of the inheritance in different portions awarded to each other using different
terms, which however, in context, have the same meaning.
In Larsa, the inherited estate assets are divided by division agreement and awarded to the
different contractual parties by the presence of the terms zi-i-zu and ì-ba-e-ne, which translate
as “they (agree to) divided”.
In Sippar, the term i-zu-uz-zu is used.
In Nippur, as regards seven of ten estates the term še-ga-ne-ne ta “in mutual agreement” was
mentioned, although in the other three texts N4, N8 and N9 it can be ascertained from the
context that the parties reached a mutual agreement. In Nippur the term šega deriving from
še-ga-ne-ne-ta which means agreement, and reflecting the mutual agreement reached between
the contractual parties. In N1, N2, N3, N5, N7, N8 and N10 the contractual parties agree in
mutual agreement and have divided the inheritance up by using the term še-ga-ne-ne-ta.
8.2.6
Raison d’être
In the Larsa texts, exchange is predominantly utilised as a method to divide the inheritance
assets. In these texts exchange or a variation, involving exchange occurs most frequently.
This means that sometimes this exchange process is intertwined with a casting of lots, as well
as some assets being brought in. The mechanism of exchange was still however the dominant
practice and was legally supported by dividing the estate into equal shares. This method of
settling in equal shares is mentioned in six of the ten Larsa texts. Only one Larsa text
mentions a preference portion rule. Consequently, on the basis of evidence presented by this
limited corpus, it is concluded that the preference portion is not a significant legal practice in
Larsa and that the overall mechanism for division is exchange in equal parts, with donation
being implied, to wind-up an estate, in instances where a precise division cannot be achieved.
Donation, as mechanism for a division, is an instrument to manage the final winding up of an
estate. It is used to allocate those portions that cannot be equally distributed due to practical
restraints, such as agricultural and architectural factors. The parties then consensually agree
that with regard to some assets, some contractual parties will receive more than others will.
357
In contrast, in the Nippur texts solutions that are more specific are found in the division
agreements where the deceased estate assets are divided in equal portions of sole ownership.
Here, unlike Larsa and Sippar, the preference portion named a zaggula bowl, was
predominately used in seven of the ten texts. This demonstrates that in Nippur the preference
portion was an important legal practice in contrast to that of Larsa where it is referred to in
only one out of the ten texts with no occurrence of this legal practice being found in Sippar.
In Nippur, the deceased father’s estate is divided by attention being given to the in-na-an-búr
clause. This is the “bringing in” or the balancing of the value of each estate asset, awarded to
a beneficiary as a quid pro quo, in conjunction with the rule of preference-portion to the eldest
brother (gišbanšur zag-gú-lá síb-ta mu-nam-šeš-gal-šè) and casting or casting of lots (giššubba-ta in-ba-eš). The “bringing in” mechanism was used in six of the ten texts together with
that of exchange.
In the rest of the four texts, exchange was used together and was
predominately supported by the casting of lots. Donation as a mechanism also took place only
as a support mechanism. Overall, in the Nippur texts there are more even distributions of
portions in the division agreements.
In Sippar, the mechanism for a division was primarily one of exchange, with one example of
“bringing in”. Exchange was supported by minor practices such as usufruct, a trust and
casting of lots. In Sippar, donation occurred as a supplement to exchange.
In conclusion, it can be seen that in Larsa the main mechanism for division is exchange. In
Nippur exchange dominates in the majority of the texts, showing the use of the “bringing in”
mechanism together with exchange to achieve a more even distribution of portions. In Sippar,
the main mechanism of division is exchange with only one example of “bringing in”.
In all three of the city-states donation was used as a third mechanism. This can be noticed
when analysing the specific delineation of awarded assets and portions of an asset. The
purpose of a donation is only to achieve the final winding-up of the division of the estate and
can therefore be regarded as a practical mechanism in doing so. (See in this regard, Chapter 3
regarding the agricultural and architectural challenges of a division agreement.)
“Bringing in”, donation and exchange are three mechanisms interchangeably used in the
execution of a division of communally inherited assets in a family deceased division
agreement.
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8.2.7
Summary
All of the essential elements of a family deceased division agreement are present in the texts.
There are specific terms or words reflecting these elements and in some instances,
conclusions are drawn from the context in the texts.
In most of the texts, brothers are the contractual parties. In a few instances in Sippar and
Larsa, sisters are contractual parties. In Sippar, with respect to the greater part of the texts,
sisters in their capacity as contractual parties were also described as priestesses and in each
instance, she is portrayed as having a unique relationship with her brothers and/or sisters. In
Nippur a sister does not emerge as a contractual party, although in one exception the text
refers to a daughter as a contractual party.
In the Sippar, Larsa and Nippur texts, other members of the family, such as a nephew and an
uncle, are contractual parties; however, this only occurs in exceptional cases.
The estate owner is usually the deceased father. In exceptional cases other family members
are the estate owners; the mother is the alternative estate owner in the majority of Sippar and
Larsa texts. In Nippur, as opposed to Larsa and Sippar, a mother as a rule is not a deceased
owner (except for one anomaly). In Larsa, the deceased father’s estate is divided while in
two texts both parents’ deceased estates are involved; however, there are no texts in Larsa
where only a deceased woman’s mother’s estate is divided. In Sippar in three texts, the
mother is the only deceased owner; but in such instances, the agreement is concluded between
women (daughters of the deceased) who are all priestesses and sisters to each other.
In Nippur two different types of estate divisions of an estate owner occur: the first, where the
father is the deceased owner, is basic, followed by a more complex example of division of the
estate of the father and his brother (uncle), or nephews in the case where the uncle has
predeceased them.
In Larsa and Nippur, vast estates and varieties of assets are included in the divisions. In
Nippur particularly, the scribes use elaborate descriptions of the assets, which makes it easier
to conclude that all the valuable estates, mostly the whole of the communally inheritance
assets, were divided. In Nippur, the edadi-ship is an important inclusion. In Sippar although
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the references to the assets are minimal, there are terms such as “from straw to gold” and “as
much as there is” in some of the texts, indicating that the communally-shared inheritance was
divided.
The contractual parties consensually agree to the division; each city-state has its
predominantly utilised terms: Larsa employs the Akkadian and Sumerian variants zi-i-zu and
ì-ba-e-ne, in Nippur a Sumerian variant: še-ga-ne-ne ta is used; and in Sippar an Akkadian
variant: i-zu-uz-zu is preferred.
The predominant mechanism for a division is exchange; in addition to this and depending on
the legal traditions, there is support of other legal practices to assist in the given practice.
In Nippur, the emphasis is placed more on a precise division of portions and on the further
complication of the predominantly preferred rule. The practical requirements for the overall
use of the “bringing in” clause and the “division by lots” to manage a winding up of an estate
are reflected in the Nippur texts.
Larsa’s divisions are less precise and are principally an exchange of assets. In Larsa, the
exchange is supported by a minimal amount of “bringing in” and casting of lots. There is,
however, an emphasis in the texts that the division took place with equal shares to balance out
this impracticality. Regarding Larsa, it can thus be said that its philosophy and way of
dividing the estates are more in line with those of Nippur.
Sippar used the instrument of exchange as an elementary way of dividing the estate. By
“elementary” it is meant that in only one text the “bringing in” clause, and in one other text
the casting (division) of lots, is used. In Sippar, exchange is utilised together with a wider
range of legal practices. These are more focused to ensure harmony was established and a
few of the legal practices are symbolic in nature. The symbolic acts and terms assist in the
analysis of the type of assets used and rights assigned to the new owners in the division, as
well as the formalities of the conclusion of the contract. Examples of this include “their heart
is satisfied”, “from straw up to gold”, “as much as there is”, no claim-clause, a special oath
ceremony and a witness-clause, along with two anomalies: firstly the use of a usufruct in three
texts and secondly the implementation of a trust.
360
In Nippur, Larsa and in Sippar the concept of donation occurs. It is used as a supplementary
mechanism for division of the assets and/or awarded portions and is readily identified when a
precise division of assets and/or portions thereof do not occur and it is then utilised to assist in
the final winding-up of the estate.
8.3
NATURAL ELEMENTS
Natural consequences result from division agreements through practice and law.
The
contractual parties can choose which legal practices they prefer to incorporate in the
agreement. This choice depends on the unique circumstances and possible factors such as
family circumstances (preference rule and sister as priestess), practical challenges due to
agricultural and architectural elements, as well as economic use and personal preferences.
8.3.1
Introduction
The natural elements indicate the different legal practices and options contractual parties can
use to manage the division of the communally-shared inheritance. The variety of options
regarding legal practices used in Old Babylonian Larsa, Nippur and Sippar include the
following:508
Mechanisms of the division: “bringing in”, Nat 2.
Practical procedure to manage a division: “division by lots” or “casting of lots”, Nat 3.
Symbolic expression: “heart is satisfied”, Nat 4; “completely divided” and “from straw to
gold”, Nat 5.
Formalities, implementation and enforcement of the agreement: no claim, Nat 6; oath Nat
7, and witnesses, Nat 12.
Additional conditions and provisions: adoption, Nat 1; preference portion, Nat 8; “equal
shares”, Nat 9; trustee Nat 10, and usufruct Nat 11.
The differences and similarities between various legal practices of Larsa, Nippur and Sippar
508
See Chapter 6 (Terms), Chapter 7, as well as Part C of the discussion and outline of the different legal
practices which a scribe in each text used, in the scribe’s expression of the different terminologies reflecting the
different legal practices.
361
with regard to family deceased division agreements are outlined and compared in this
section.509
8.3.2
Adoption/support (Nat 1)
The adoption support clause as an additional provision occurs only in one text in Nippur N4,
and is therefore an exception to the rule.
8.3.3
Bringing in (Nat 2)510
As a mechanism for division, the purpose of the “bringing in” clause is to equalise the values
of the portions of estate assets divided and awarded to each of the contractual parties. It is an
a typical sale and takes place where the parties by agreement “bring in” or “buy” an asset/s to
compensate one or more of them. This is due to one or more of the contractual parties
receiving a greater amount of assets or portions in value.
In the three Larsa texts, one text indicates that some silver is brought in to compensate for a
house (L5), while in another (L6), a slave is brought in and in the last (L8), the contractual
parties agree that a certain “branch of channel” will later be brought in. In seven of the ten
Larsa texts, the “bringing in” clause is not used.
In Nippur the opposite occurs: “bringing in” is the dominant mechanism used in seven of the
ten texts. Different types of assets, according to each circumstance, were used to equalise the
values of the awarded assets. It ranges in texts from: something a brother must pay in
balancing his share from his brothers, through to a recompense not to share in the estate’s
debt, through to one party’s silver shekels being brought in for a house where more is
received by another and as compensation for house renovations by one contractual party
(probably for repairs done to said house preparatory to dividing it up). In most cases either
money or a field was brought in.
In Sippar, “bringing in” was not a rule and only in one of the twenty six texts, namely S17, it
is used in an instance where one party contractual gives 5 shekels of silver to another as an
509
See figure 14 in the conclusions-section of this chapter to understand the logical flow of the differences
and similarities of the natural elements of Larsa, Nippur and Sippar.
510
Term búr.
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equivalent value for a house received.
8.3.4
Division by lots (Nat 3)511
The division of an estate by lots is a practical means to constitute an equal and fair
distribution of the division. The different assets are segmented into different portions. Lots
are drawn, and the respective portions are allocated as sole ownership to the awarded
contractual party. Drawing or casting of lots has the advantage that in decision-making each
participant willingly and with good intent agrees on the proper appropriation of each portion
or asset, as any of the parties may end up with a particular portion. Thus it may be said that
the whole process of the division of communally-shared inheritance, entails more than the
random throwing or casting of a few lots.
This practical procedure occurs in only four Larsa texts: L5, L6, L8 and L10, as a means to
manage a division. In six out of ten Larsa texts there is no division by lots.
In Nippur however, this practical clause is used in eight of the ten (except N3 and N6) family
deceased division agreements.
In Sippar in texts S1 - S25 no division by lots clauses occur. It is not a normal practice in
Sippar: in only one text (S26), which is itself an interpretation, a division by lots occurs.
It can thus be concluded from the texts that in Sippar, division by lots is not the norm while in
Larsa, it is used to some extent and in Nippur this practical means of dividing the estate’s
portions is frequently used.
8.3.5
Heart is satisfied (Nat 4)512
This is a symbolic expression and is present in only the Sippar texts. The term can be found
in six of the twenty-six agreements of Sippar and is read together with other terms for its
understanding of context and to underline the satisfaction of the parties regarding the division
of the portions and/or assets of the communally inherited assets.
511
512
Terms: giššub-ba or išqu.
Term: li-ba-šu-nu ṭâb ab.
363
As much as there is (Nat 5)513
8.3.6
The “as much as there is” clause, is found in only Larsa and Sippar. It is a symbolic
expression and indicates the extent of the division of the inheritance assets.
This term and its different variants are not found in the ten Nippur texts.
In Larsa this clause occurs in four of the ten texts, usually provided with a description of the
assets and a general description of the furniture, goods and estate of the father’s house
together with the term “as much as there is”.
In Sippar, another descriptive grammatical term is used with a different emphasis. At the
conclusion of the division of assets among the contractual parties, everything due to be shared
is now divided: all of the communally inherited assets have been allocated to the contractual
parties. This sometimes occurs alone or on its own combined with the term “from straw to
gold”.
he term “from straw to gold” is a unique symbolic expression found in only the
Sippar texts. It means that all the assets from those with insignificant value to those of high
value have been included in the division.
8.3.7
No claim (Nat 6)514
The no claim-clause is one of the formalities, implementations and enforcements of the
agreement and one of the general clauses used in the majority of division agreements found in
the Larsa, Nippur and Sippar texts.
In Larsa, this clause is used in nine of the ten texts with variants, all having almost the same
meaning. Only one Larsa text, L3, does not reflect the clause. The parties, in general terms,
state that there will be no complaint against the other.
In fifty percent of the Nippur texts, the term is used as an enforcement of the agreement.
In Sippar, this term is found in twenty two of the twenty six texts, with only four of the
twenty six agreements not recording a no claim-clause.
513
514
Terms: gamāru, ištu, gál-àm.
Terms : inim nu-um-gá-gá-a or the variant šeš-a-ne-ne ba-ani-ib-ge4-ge4-ne.
364
8.3.8
Oath in the temple (Nat 7)
The oath clause is read together with the no claim and witness clauses, as one of the
formalities, implementations and enforcements of the division agreement.
Additionally, in Sippar, an “oath in the temple” clause consisting of ceremonial rituals is
present in three texts: S20, S25 and S26, The contractual parties cleanse themselves in a ritual
and in one text, as well as the ceremony ritual, the division agreement is registered in a land
register.
8.3.9
Preference portion (Nat 8)515
The preference portion is one of the additional conditions and provisions apart from the
adoption (Nat 1), trustee (Nat 10) and usufruct (Nat 11).
In Sippar this legal practice does not occur in any of the twenty six texts.
In Larsa from texts L1-L10, only one text (L10) mentions a gišbanšur zaggulá: a table
zaggula (first-born share).
In Nippur, this term and provision are present in the majority of the texts i.e. seven of the ten.
This clause is not present in Nippur texts N3, N4 and N7.
The preference portion is a legal practice generally used in Nippur, less in Larsa and not at all
in Sippar.
8.3.10 Equal Shares (Nat 9)516
The “equal shares” clause is one of the additional conditions and provisions used as a choice
in a division agreement.
In Nippur, this term is not reflected in any of the ten Nippur division texts.
515
516
Term gisbanšur.
Term mit āriš.
365
In Sippar, this provision only appears in one text (S25) where the term mi-it- a-ri-iš is present
and is not reflected in the other Sippar twenty-five agreements.
In Larsa, this clause occurs in six of the ten Larsa texts where the contractual parties agree to
the division of the estate in equal parts.
Thus, the equal share legal practice is a term that occurs predominantly in Larsa.
8.3.11 Trust/Trustee (Nat 10)
The trustee clause is one of the additional conditions and provisions and is present only once
in a Sippar text (S25) where it is stated that the income accrued from the father's house belong
to them together and that they will administer the property.
8.3.12 Usufruct (Nat 11)
In Sippar as an additional condition and provision in the same instance as an adoption (Nat 1),
preference portion (Nat 8) and trustee (Nat 10), the usufruct is an option used by contractual
parties. This option is only used in Sippar, in three of the twenty six texts. In all three texts
the sister is a usufructuary and her brothers are bare dominium owners. In S5, the sister is a
kulmašītu in a division agreement between her brothers; and in S17 and S19, her occupation
as a sal-me priestess, are described. This additional condition is used together with the
mechanism to institute a division by an exchange of assets/portions.
The special role of the priestess comes into play, and by utilising a usufruct certain built-in
precautionary mechanisms were employed to protect the sister and give more obligations to
the brother/s.
As an additional consequence all contractual parties in the given city-states wish to enter in a
division agreement, for as co-owners they do not want to share in the co-ownership of the
communally-shared inheritance. Nevertheless, in the case of a chosen usufruct over a
dominium property, the contractual parties agree to retain co-ownership over some of the
property, and to manage this property as a lifelong commitment to the advantage of the
designated person, usually their sister. This lifelong commitment ensure that the contractual
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parties must peacefully and successful manage and utilise the property, or they may forfeit
ownership over property. In such instance, forfeiting ownership could also mean losing their
investment of their own capital to maintain the property.
No provision was made in Nippur and Larsa regarding a usufruct/maintenance rights over
communally-shared immovable property. In Nippur and Larsa, the contractual parties
concluded that with the division of the assets, the assets are divided in portions of
sole-ownership. They consequently create a new beginning (tabula rasa), as sole owners,
regarding their new acquired allocations of the once communally-shared inheritance.517
8.3.13 Witnesses (Nat 12)518
The witnesses clause (Nat 12) is one of the formalities, implementations and enforcements of
the division agreement, together with the no claim (Nat 6) and oath (Nat 7) clauses.
In Larsa, in all of the ten texts, witnesses are recorded as presence, with the Sumerian variant
for meaning “before” igi being used.
In Nippur, it seems that in all ten texts there are witnesses recorded as being present.
Unfortunately, in the process of transcription some scholars tend to omit the witnesses clause.
In six of the agreements we can properly assess that the term igi is used, namely in N1, N2,
N7-N10. In texts N3 and N4, it is unclear if there were witnesses recorded. In texts N5 and 6
the clause cannot be accurately assessed.
In all of the Sippar texts there are witnesses present, with Akkadian and Sumerian variants for
the term meaning “before” in one text the term pan is used; in twelve texts igi, while in the
rest of the texts ma ar is employed.
517
The scope of this thesis does not allow for a detailed discussion of the rights, privileges and obligations of
the contractual parties. However, a future study may shed more light on the consequences of a usufruct for the
contractual parties and their sister, as well as detailed study of the usufruct construction. In addition, the study
may include their possible needs, reflect complex family relationships and family contractual obligations in old
Babylonian Sippar.
518
Term igi or ma ar or in one Sippar text: pan.
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8.3.14 Summary
In the legal practices, an undisclosed category of twelve legal practices, termed natural
elements, indicates that, these practices serve as options for the contractual parties to choose
from in the ancient Babylonian city-states of Larsa, Nippur and Sippar. These serve as
mechanisms, procedures, formalities, implementation and enforcement, as well as conditions
and provisions of the division agreement. A summary of the following comparisons ensues:
The adoption/support clause (Nat 1) occurs only in one Nippur text.
The “bringing in” clause (Nat 2) is present in the majority of the Nippur texts, in some of the
Larsa texts and in only one Sippar text.
The division by lots clause (Nat 3) is a general practice in Nippur, with some presence in the
Larsa texts, and only one occurrence in the Sippar texts.
In Nippur, the preference portion (Nat 8) is a normal occurrence in the majority of the texts,
with one occurrence in the Larsa texts, but makes no appearance in the Sippar texts.
The “as much as there is” clause (Nat 5) occurs only in the six of the ten Larsa and the
majority of the Sippar texts in which they are utilised together with, or as an alternative to the
symbolic expression of “from straw to gold”.
The “equal shares” clause (Nat 9) occur in only a few Larsa texts, with one occurrence in
Sippar texts, and none in those of Nippur.
The “no claim” clause (Nat 6) is a general one, which occurs in ninety percent of the Larsa
texts, fifty percent of the Nippur texts, and in the majority of the Sippar texts.
The “heart is satisfied” (Nat 4), trust (Nat 10), usufruct (Nat 11) and oath in the temple (Nat
7) clauses only occur in Sippar. The general oath is present in the majority of all the texts in
the city-states.
The incorporated trust and usufruct in Sippar division agreements, show the willingness of
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contractual parties to agree to lifelong commitments, in a situation where the parties wish to
changed some of their co-ownership to assets of sole ownership. With these constructions,
the contractual parties are committed in the future to peacefully manage the property, or they
may forfeit their ownership. Nippur and Larsa took to a clean-slate (tabula rasa) approach.
Thus with the conclusion of the agreement, the communally-shared assets were change in
portions of sole-ownership for each party concerned, to start a new beginning of sole
ownership.
The witnesses’ clause (Nat 12) is present in almost all of the texts, but for unknown reasons it
is sometimes omitted by the translators, or else the tablet may have been damaged. From the
texts it can accordingly be regarded as a normal practice in Old Babylonian division
agreements that witnesses are present at the conclusion of the terms and conditions of division
agreement, to provide testimony and assistance in possible disputes.
The terminology
employed to describe the witnesses has divergent Akkadian and Sumerian variants that
convey the same meaning i.e. that these witnesses appear in front of (or before) the
contractual parties. The contractual parties see them, and they are therefore presence during
the conclusion of the agreement proceedings.
In conclusion, Larsa demonstrates something of both of Sippar and Nippur’s main traditions
and philosophies, in the conclusion and recording of a family deceased division agreement.
Sippar and Nippur resemble each other less in this regard.
Nippur, as the “traditionalists” follows a strict practical tradition in their dealing with legal
acts and recordings, and probably life itself, captured in all of the customs and ways of
society.
In the Nippur division agreements, there were no reliance on statements of equal
portions (predominantly found in Larsa) or symbolic expressions (found in Larsa and Sippar),
but rather on the implementation of practical traditions and procedures. In their practical and
traditional mind-set, they solve problems of segmentation of portions and final division by
using the traditional casting of lots, in alternative or together the traditional “bringing in”
mechanism to make sure that there is an equalisation of values; together sometimes, with the
legal practice of awarding of a certain percentage to the eldest brother.
Sippar, the “innovators” focuses less on detail and more on relationships and the innovation in
problem-solving in the means to divide communally-shared estate assets in portions of sole369
ownership. The contractual parties and scribes of Sippar are interested in an expressive,
symbolic approach of attending to matters. The scribes were focus on a bigger picture
orientation in their recordings of the agreed terms by the contractual parties. They use
emotion expression in their recordings to show the passionate intent and symbolic
communication of legal acts. There is also a wider range of options available in Sippar.
Sippar agreements employ variations, which accommodate special circumstances and
protection of rights. The parties can decide in accordance with their circumstances what
terms and conditions to use.
Larsa, are the “practical idealists” and uphold a combination of traditional practices and some
of Sippar’s innovations in problem-solving with the division of assets. In Larsa to accomplish
a division, the contractual parties show both an appreciation for a division in more or less
equal portions as shown in Nippur; however using some of the symbolic expressions of
Sippar.
8.4
8.4.1
INCIDENTAL ELEMENTS
Introduction
In this category, we find the uniqueness of different scribal practices reflected in the written
division agreement; however, parties could choose to include such practices in the contract
and such practices did not form part of the basic requirements to qualify a contract as a
division agreement.
Written formalities of division agreements investigate the following aspects: names of the
contractual parties, birth order, descriptions of assets (thorough description, value), special
legal terms, sanction clause (type), oath clause (king/god) and witnesses (names, rank/family
standing).
In division texts, the following qualities were emphasised language, location of text, tablet’s
condition, copies, date formula, seal impressions and the rhythm sequence/special style.
The similarities and differences of the scribal practices regarding the detail, aspects, elements
and terms of the Larsa, Nippur and Sippar division agreements are outlined here, together
370
with an indication of the qualities of these texts.519
8.4.2
Written formalities of division agreements
8.4.2.1 Names of contractual parties, rank
In the Nippur texts, which were customarily written in Sumerian, the names of the contractual
parties and witnesses were predominately Semitic.
In all ten texts, the names of the
contractual parties are shown. In Larsa, the names of the contractual parties are mentioned.
The names of the contractual parties are mostly reflected in the Sippar documents.
8.4.2.2 Birth order of brothers (implied/ implicit)
The birth ranking order normally occurs in texts in the presence of the gišbanšur zag-gu-lá
clause where the oldest son receives a preference portion of the deceased parent’s estate.
In Larsa in the texts, L1-L9 there is no preference portion and no reference to birth order
ranking. Only in the Larsa text L10 is there any reference to birth order, as well as to a
giš
banšur zaggulá clause (preference clause).
However, in Nippur, where the preference share is a dominant clause, birth order ranking is
prominent. This scribal school style of the said gišbanšur zaggulá clause means that the
oldest son receives a preference portion of the deceased parent’s estate. Birth order is evident
in seven of the ten Nippur texts.
In Sippar, there are no birth order references; this is probably due to their being unnecessary
as there are no “preference portion” practices in the Sippar agreements.
8.4.2.3 Description of assets: thorough description, value
Depending upon the scribal tradition in the different texts the description of the assets differs
accordingly.
519
See figure 14 in the conclusions-section of this chapter to understand the logical flow of the differences
and similarities of the incidental elements of Larsa, Nippur and Sippar.
371
In Larsa, the property was discussed properly and in detail. In the majority of the texts the
following particulars of the assets were evident, namely: description of unit, extent of unit and
position on or in relation to the unit. In some texts, only the more valuable items were
mentioned to identify them.
In Nippur a detailed description and measurements of assets, references to neighbouring
properties and natural boundaries are included. Money is described by giving the amount.
Moveable assets are described: e.g. name and type of slave.
In some Sippar texts a description of the assets was mentioned to identify them, for instance a
certain type of immovable property such as a house, or movable property items such as slaves
and doors. In a few Sippar texts, descriptions are more detailed given, although in a far less
elaborate manner than those of Larsa, and especially Nippur.
8.4.2.4 Special legal terms
In Larsa the significant special legal terms subjected to the different legal practices’ unique
terms and applicable to each agreement are: a-la - the inheritance share of X; ì-ba-e-ne or izu-zu - they divided; u4-kúr-šè šeš šeš-ra inim-ma nu-gá-gá – brother against brother will
not lodge a claim against another; and mu - an oath clause.
In Nippur the key special legal terms are: še-ga-ne-ne-ta - in mutual agreement;
a-la-la -
the inheritance share of X; búr - in balance; mu-nam-šeš-gal-šè - right of primogeniture;
mu lugal-bi in-pá; ŭ-kúr-šú lù-ù-ra nu-gí-gí-dé - in future neither shall have power to
revoke the agreement; ni-ba-e-ne - they shall divide into equal parts; síb-ta garzá a-na-me-bi
- the preference portion of whatever temple offices there are; and ibila - beneficiaries (heirs)
of X.
Specific terms particularly used in Sippar are the two symbolic expressions of “heart is
satisfied” and “from straw to gold”. erms usually present in the Sippar texts are i-zu-zu-šuum zi-zu ga-am-ru - they have shared, they are finished; li-ba-šu-nu ṭâbab - their hearts are
satisfied; ú-ul i-ta-ar-ma - they will not complain and come back; iš-tu pí-e a-di guškin “from straw to gold”; ga-am-ru - the division is finished; and
a-la or zitti - inheritance
share of X.
372
8.4.2.5 Oath clause (king/god)
In Sippar, there are two different types of oaths. The general type is the same as which is
found in Nippur and Larsa, where the parties swore an oath to an entity or a deity. 520 The
other type of oath occurring is a ceremonial oath in a temple.
In Sippar as regards a general oath, the parties swore to gods, the reigning king and, only in
Sippar, to Sippar the city itself.
In Larsa, the oath clauses appear in all ten of the Larsa texts. In these they swore by the king
of the day, for instance Rīm-Sîn, ammu-r pi and Samsu-iluna; and in some instances by the
god/gods S n, ṣamaš, Nanna, Marduk.
The general oath in Nippur is different from Larsa and Sippar for in only seven of the ten
texts is an oath clause found: the oath, which is sworn to the king, mu lugal-bi téš-bi-pà-dèeš.
It is unknown if the detail of the oath is the choice by the scribe and/or that of the contractual
parties. If it is the decision of the parties which king and/or gods to name, then it is most
likely the choice of all of the contractual parties or of the contractual party whose only
awarded division is inscribed on the clay tablet.
8.4.2.6 Witnesses names, rank/family standing
In Larsa, in three texts, the name of the witness and status son of X , the scribe’s name and
profession (dub-sar) also appear. In four of the texts the name of witnesses and status (son of
X) occur, in two texts only the name of the witness and in one text L9, the names and family
relationships are mentioned, e.g. son of X. In L4 four merchants were mentioned. Text L9
mentions the following: Ilšu-ibnīšu, a surveyor and Puzir-Nazi, a builder. This pose the
question of whether this surveyor and builder have some knowledge of the measurements of
structures of the fields, gardens and houses mentioned in the agreement.
In Nippur, in texts N1, N7, N8, N9 and N10, there are witnesses whose status is mentioned.
520
An entity would represent the city-state; a ruler - the king. A deity represents a certain god.
373
At the end, the last two witnesses are the dub-sar, a scribe and the bur-gal, a seal engraver.
In one text N1 a scribe and seal engraver are witnesses and are mentioned last (see texts N9
and N10). In this text, the seals of the contractual parties were especially made for this
agreement. Other texts’ transcription and/or translation only indicate that there are witnesses
present. Other professions mentioned include a priest, soldier and overseer.
In Sippar in all of the texts, witness clauses were recorded containing different language
variants meaning “before”.
he clause includes names of witnesses without status and the
name of a scribe (tupšarrum), names of witnesses with status (son (dumu) of X), names of
witnesses with status (son (dumu) of X) with a scribe (dub-sar) and witnesses with their
names and status (son mâr of X). Also professions such as priestess (lukur) and law
commissioner are mentioned in the Sippar texts, as witnesses.
8.4.3
Qualities of cuneiform division texts
8.4.3.1 Language
In Larsa, three texts are written in Akkadian and Sumerian, the remainder solely in Sumerian.
Nippur texts reveal that Sumerian is the language predominantly used in texts N1 – 9, but in
text N10 Sumerian is used with some parts being written in Akkadian.
In Sippar, the language is predominantly Akkadian, with a few Sumerian words.
8.4.3.2 Condition of the tablets
In Larsa, the tablets’ condition in many of the texts is not good; however, the important
details of the agreement can for the most part be assessed.
In Nippur, most of the tablets are in a reasonably good condition.
In Sippar, some of the tablets are damaged, although it is possible to assess the most
important details of the agreements.
374
8.4.3.3 Number of copies (agreements)
In Larsa there is only one copy of each of the texts; it seems that all the agreed portions of the
contractual parties were recorded on each tablet.
In Nippur, all ten Nippur recorded family deceased division agreements suggest only one
copy and the recording of the entire agreement.
On the other hand, in Sippar an exception occurs in practice: generally only one contractual
party’s agreed awarded assets are evidenced in one recorded clay tablet; by implication this
meant the other brothers had probably caused their agreed portion to be recorded in a separate
clay tablet. An excellent example is S11, S12 and S13 regarding the three brothers whose
awarded portions are reflected in three separate recordings.
8.4.3.4 Date formula
In the Larsa and Nippur texts the date formula is present in all of the texts. In Sippar most of
the twenty six agreements contain a date formula.
8.4.3.5 Seal impressions
In Larsa in all of the texts there are seal impressions, except for that of L10.
All ten Nippur texts have seal impressions. Text N1 seals are made for a division agreement
and the impression occurs before the ala lines. The seal is cut specifically for this occasion
and has the names of all three brothers present.
In Sippar some texts display seal impressions.
8.4.4
Summary
With regard to the incidental elements found in the given agreements from the said city-states,
analysis of them allows them to be categorised into two main groups, namely: written
formalities of division agreements and qualities of the texts reflecting scribal school
traditions. Comparisons of these are summarised as follows:
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With regards to the written formalities of the division agreement, thus:
In the Nippur, Larsa and Sippar texts the names of the contractual parties are made
known; some of the names are Sumerian, Akkadian and, in Nippur, Semitic.
he scribes’ choice to include the birth ranking order normally occurs in texts where the
gišbanšur zaggulá clause is present. In Nippur, the preference share is the dominant
clause, as birth-ranking order is indicated or implied, because of use of the term. In
Sippar, there is no birth ranking indication and in Larsa, it is an uncommon term used only
in one text together with the preference share.
In Sippar, the description of the property is limited to the information necessary to identify
the assets only. In Larsa, the property was in the main properly described and discussed in
detail with merely a few texts having less detail. In Nippur the scribes once more
demonstrate a proper description of the assets.
In Larsa, Nippur and Sippar there are definite scribal traditions regarding the oath
procedures although the exact extent of the contractual parties’ role in the choice of the
god and king and even of such reference as mentioning the city Sippar itself is an open
question. For instance, in Nippur, the parties were only sworn in the name of the king. In
Sippar the oath clauses contained variations with regard to certain gods and the reigning
king, or only the gods and/or the city. In Larsa, the contractual parties were sworn to
different gods and the reigning king.
The witness clause is a general clause in a division agreement and scribal tradition reflects
the different styles as regards the name, status and professions of the witnesses, together
with the mentioning of the scribe’s name, the seal engraver, the surveyor, builder and
some other professions. In Larsa the name of the witness and status (son of X), the
scribe’s name and profession dub-sar), together with the professions of a merchant,
surveyor and a builder are recorded. These are the only professions named in the witness
clause. In Nippur, mention is made of witnesses with status, namely the dub-sar, a scribe
and bur-gal, a seal engraver. Also in the Nippur texts, professions were named of a priest,
soldier and overseer. In Sippar one comes across names of witnesses without status and
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the name of a scribe (ṭupšarrum), names of witnesses with status (son [dumu] of X),
names of witnesses with status (son [dumu] of X) together with a scribe (dub-sar) and of
witnesses with their names and status (son mâr of X). Also professions such as priestess
(lukur) and law commissioner are mentioned in the Sippar texts, as witnesses.
In Larsa, some of the texts are written in Akkadian and Sumerian while the rest are in
Sumerian. In Nippur, the language predominantly used is Sumerian, and in Sippar it is
predominantly Akkadian.
he tablets’ condition ranges from bad to fair to good, but the important details of the
agreement can mostly be gauged.
In the Larsa and Nippur only one copy of the texts is made; therefore the complete
division agreement is reflected in a written form on the tablet. Sippar is the exception and
here, in a few texts the practice is to reflect only one contractual party’s agreed awarded
assets on a single recorded clay tablet; by implication this meant the other brothers most
probably had the details of their agreed portion recorded on a separate clay tablet.
8.5
Date formula and seal impressions are found in the majority of the texts.
CONCLUSIONS
From the comparisons studied in this chapter, it is evident that, with regards to the essential,
natural and incidental elements in the cities of Nippur and Sippar, their philosophical outlook
and means of division, as well as scribal school practices, in completing a family deceased
division agreement vary in similarities and differences. See the schematic outline (infra)
reflecting these similarities and differences.
377
Figure 13 Schematic outline of philosophy, management of division and scribal school traditions of Larsa,
Nippur and Sippar
In Larsa, contractual parties and scribes have a “practical-idealistic” outlook, Nippur were
“traditionalists”, and Sippar act as “innovators” regarding their philosophical outlook,
management of division and scribal school traditions. Larsa demonstrates something of both
of the Sippar and Nippur’s main traditions and philosophies in the conclusion and recording
of a family deceased division agreement. Sippar and Nippur resemble each other less in this
regard.
Nippur, as the “traditionalists” in the examination of the legal practices and scribal school
traditions, follow a strict practical tradition. It is about doing the right thing, in a traditional
and practical manner. It is Nippur’s way of dealing with legal acts and recording, and
probably life itself, captured in the customs and ways of society. Nippur texts do not rely on
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statements of equal portions (predominantly found in Larsa) or symbolic expressions (found
in Larsa and Sippar), but rather on the implementation of means of practical traditions and
procedures.
Nippur’s implementation of the division is practical and thorough, not only in the recording of
the agreements, but also in the winding-up of the division. This mind-set begins with solving
problems of segmentation of portions and final division by using the traditional casting of
lots, in alternative or together with the traditional “bringing in” mechanism to make sure that
there is an equalisation of values; and, in addition, with the tradition of the awarding of a
certain percentage to the eldest brother (preference rule).
Sippar, the “innovators”, focus less on detail and more on relationships, as well as
innovations in problem-solving in the means of dividing communally-shared estate assets in
portions of sole-ownership. To this end, every contractual party in six texts (60%) avers that
they are satisfied in their hearts, as the expression is stated. The contractual parties and
scribes of Sippar are interested in an expressive, symbolic approach. The scribes have a
bigger picture orientation in their recordings of the agreed terms by the contractual parties.
They use emotion/symbolic expression in their recordings to show the passionate intent and
symbolic communication of legal acts. There is also a wider range of options available in
Sippar. Sippar agreements employ variations, which accommodate special circumstances and
protection of rights. The parties can decide in accordance with their circumstances what
terms and conditions to use.
Larsa, the “practical idealists”, uphold a combination of Nippur’s traditional practices and
some of Sippar’s innovations in problem-solving with the division of assets. In Larsa, to
accomplish a division, the contractual parties show both an appreciation for a division in more
or less equal portions as shown in Nippur; however, they use the symbolic expressions of
Sippar in the recording of the agreed terms.
In the application of the analysis-model, dealing with the categorisation of different aspects of
the division agreements, in categories of elements, the schematic outline (infra) illustrates the
differences and similarities of the details, as well as the characteristic of these agreements in
each city-state.
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Keeping in mind the following common characteristics, which occur in all three of the citystates, namely:
Essential elements: all of the elements to qualify an agreement as a family division
agreement from a deceased estate
Natural elements (legal practices) representing the formalities, implementation and
enforcement of the agreement:
o No claim clause
o Witnesses clause
o Oath clause
Incidental elements (scribal school practices)
o Name of the contractual parties and mostly relationship to each other
o Date formula
o Seal impressions
In the schematic outline (infra), Larsa represents the orange circle, Nippur the blue circle and
Sippar the pink circle. Where the circles cross each other, it represents the common features
and characteristics that two city-states have in common with each other.
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Figure 14 Schematic outline of all the elements:differences and similarities
381
Notwithstanding a few similarities between two cities, (i.e. Larsa and Nippur; Larsa and
Sippar) there are a few differences between all three of the city-states.
With regard to the essential elements, in all of the division texts in the city-states, brothers
were as a rule the contractual parties. In Nippur, on the one hand, women are not included in
the agreements and in Sippar, on the other hand, women are included as contractual parties,
with Larsa in-between. In Nippur brothers play a significant role: where a more complex
division agreement arises in a few texts, due to the predeceased brother, the role of the
extended family is expanded to include that of an uncle and nephews. However, these are the
exceptions to the rule, even in Nippur.
Concerning the natural elements - the variety of options regarding legal practices used in Old
Babylonian Larsa, Nippur and Sippar include the following:
Mechanisms of the division: “bringing in”, Nat 2 (predominantly Nippur and Larsa).
Practical procedure to manage a division: division by lots, Nat 3 (Nippur and Larsa)
Symbolic expressions: “heart is satisfied” Nat 4 (Sippar), completely divided (Larsa
and Sippar) and “from straw to gold” Nat 5 (Sippar).
Formalities, implementation and enforcement of the agreement: no claim Nat 6, oath
Nat 7 and witnesses Nat 12 (Nippur, Sippar and Larsa).
Additional conditions and provisions: adoption Nat 1 (Nippur), preference portion Nat
8 (Nippur and Larsa), “equal shares” Nat 9 (Larsa and Sippar), trustee Nat 10 (Sippar)
and usufruct Nat 11 (Sippar).
he contractual parties’ decision to conclude an agreement was influenced by family
circumstances (for example, the preference rule and sister/priestess as contractual party),
practical challenges due to agricultural and architectural elements, as well as economic use
and personal preferences.
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Regarding Sippar’s management of division in one text, a “bringing in” is used, in another the
division of lots, and in yet another text a trust is established; while in three texts the rights of
daughters are looked after in the establishment of a usufruct. In the majority of the texts,
exchange is used as a mechanism for division. The contractual parties assert in the contract
that the division is finished and that “from straw to gold” everything is included; in one text,
the division is carried out in equal shares. These options compensate for the lack of proper
description of assets, as well as the practical mechanism and procedures used in Nippur.
Thus, in Sippar, the contractual parties manage to use a wide range of different legal practices
beyond those employed in Larsa and Nippur without the exercise of the preference share; the
brothers in Sippar inherit in equal shares.
The symbolic expressions are unique to Sippar, where terminology such as “heart is satisfied”
and “from straw to gold” are included in the agreement.
here is no strict adherence to
traditional practices. The sons can inherit equally; the daughters are sometimes included as
beneficiaries and limited rights regarding the assets of the priestesses (sisters/contractual
parties) are settled. The estate owner may be a father or a mother. The property is described
only in sufficient detail to make the assets identifiable, and the extent of description differs in
the texts. There is, however, apart from the general oath, yet another symbolic gesture in the
legal act of concluding the agreement. In three texts, the ceremonial cleansing in the temple
is included in the record; nonetheless, this is again not a general practice. It can be concluded
that in Sippar, divisions were approached in a manner that would maintain harmony, and each
agreement was considered on its own merits, while trying to manage to conclude an
agreement that suited every contractual party’s needs.
The Larsa texts reveal its traditions and philosophy of the implementation of a division
agreement as falling in between those of Nippur and Sippar, with some predisposition to the
side of Nippur. As in the case of Nippur, the texts in Larsa are practical and some traditional
procedures occur. Here, a sister is a contractual party. As an estate owner, the woman is
included in an agreement together with her husband, the father of the contractual parties who
are her sons. No Larsa texts show the woman alone as the estate owner.
he Larsa texts’
descriptive assets reflect qualities of both Nippur and Sippar. They are more descriptive than
those of Sippar, but do not replicate the same quality as Nippur.
The “bringing in” clause and the division of lots assist in a practical equal division and appear
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in the Larsa texts, but to a lesser extent. Larsa has some similarities to Sippar with regard to
the appearance of the symbolic expression “as much as there is”.
dditionally, the symbolic
expression as a Larsa term is the statement by contractual parties that the division is
concluded in equal shares, emphasising the importance of fairness. In Larsa the divisions are
less practically instituted than in Nippur, for in a fewer texts than Nippur, the division clause
and “bringing in” clause were used. In Larsa, there is a tradition of the practical division of
estates: however, this exists to a lesser extent than in Nippur. In Larsa to some extent
symbolism occurs, such as appears in Sippar, although to a lesser extent, and this plays a
performance role in the implementation of the legal and scribal traditions.
Concerning the scribal school practices, Nippur appears to have a strong Sumerian scribal
school tradition. This illustrates the reason for the reputation of Nippur as “a town of
academics, a Mesopotamian xford or Cambridge”, with snobbery due to the use of Sumerian
as the predominant written language (Leick 2001:143).
The recordings of the division
agreements, neatly carried out by scribes and included in the documents, are primarily the
names, status of the parties, their birth order, fine, lengthy descriptions of the assets,
containing elaborate special legal terms, with the majority of texts evidencing the presence of
sanctions, oath clauses, witnesses and seals.
Nippur’s management of division Nippur devises through tradition certain legal practices
which ensure that the division is exact and precise, through scribal traditions, trained scribes
who precisely record agreed terms, reflecting thorough description of the property and its
boundaries and reflecting the agreed terms. In the ten agreements, no usufruct or trust is
found. No provision is made for a sister, regarding maintenance rights over communallyshared, inherited, immovable property. Through the means of the division, the contractual
parties from Nippur in their tradition-practical mind-set, devised a division that serves as a
clean-slate start (tabula rasa). The Nippur family members who were once co-owners,
wished to discontinue sharing in co-ownership and now finally as contractual parties agreed to
the division of the asset in meticulous portions, so that they can make a new beginning, as
sole owners regarding their acquired portions. In Nippur, the aim of the manner of the
division is being effective, meticulous and to devise a great degree of certainty for all the
contractual parties concerned.
In Sippar, in contrast to Nippur, women are included in the agreements irrespective of
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whether they are contractual parties, as regards an estate owner. Here, the special role of the
priestess comes into play, and it seems that by utilising a usufruct, certain built-in
precautionary mechanisms to protect the sister and give more obligation to the brother/s, were
employed. There are also agreements where the estate owners are women: in such cases, all
contractual parties are women and priestesses.
In Sippar also, contractual parties wish to enter in a division agreement, for as co-owners they
do not want to share ownership any more. Unfortunately, although with certain property they
have their own portions with other assets, yet again they agree not only to retain coownership, but also agree to manage it as a lifelong commitment, to the advantage of the
designated person, usually their sister. By agreement, in such instance the obligors, usually
brothers, contractually agree to provide their priestess sister with maintenance support. They
subsequently have a heavy financial burden placed upon them in compliance with their
contractual duty. This lifelong commitment ensures that these contractual parties must find a
peaceful way of managing the property, or they can forfeit ownership, in which they probably
invest some capital (from their own funds), to maintain it and to ensure good interest.
Larsa, however, uses the two opposite styles of Nippur and Sippar in each given text to the
advantage of the contractual parties. In the ten chosen Larsa texts, no trust and usufruct, thus
no lifelong commitment-terms were found. In Larsa, the contractual parties are less inclined
to use lifelong commitments and statements in establishing future legal obligations. They do
use the word “equal share” and say that the estate is “completely divided”, thus are less
inclined than Nippur to use legal practices to divide the portions meticulously into exact
portions.
s regards the terminology, in particular the term of mutual consent, Nippur’s terms are
expressed in a Sumerian variant; Sippar’s is an
kkadian variant and Larsa interchangeably
uses Sumerian and Akkadian.
Despite all the differences and similarities in the forty-six Babylonian division agreements
from Larsa, Nippur and Sippar, the division agreement was a successful, enduring estate
administration mechanism and tool that obviated the undesirable consequences of coownership of the bequeathed property.
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CHAPTER NINE
FINAL SUMMARY AND CONCLUSIONS
9.1 BACKGROUND
The family deceased division agreement emerged from lengthy family discussions. The result
for the contractual parties was to avoid problems of co-ownership and to act as a solution to
establish sole ownership. The agreement contains many particulars, intrinsic components and
mechanisms for division, including a unique organisation of division process.
Although this agreement derived from different periods of ancient Mesopotamia, it is
classified in a specific genre type, which is a family agreement, emerging from the deceased
estate of a family member, where the family members mutually agree as contractual parties to
certain agreed provisions.
In an introductory section, Part A - Aspects of Old Babylonian life - serves as background
information.
The characteristics of Old Babylonian legal traditions were synoptically outlined in Chapter 2
in the introductory Part A, to serve as a background to the mechanisms and solutions of Old
Babylonian family deceased division agreements. Cuneiform law’s interpretations are mainly
limited in cuneiform clay tablets. In addition, legal experience itself is a multi-dimensional
phenomenon (Westbrook 2003:1). The practice of law reflects the way society analyses itself
and projects its image to the world (Smith & Weisstub 1983:vii).
Subsequently,
Mesopotamian society can easily be misunderstood by the scholars of today. Roth (1998,
1987) advocated the re-examination of social categories. She opines that a person functions
differently in society within certain expectations in their role and position, influenced by
factors such as age, gender, economic and social class. However, Boecker (1980) stresses
that caution must be taken in using present-day terms in ancient legal text terminologies.
Westbrook
00
states that we only have a “series of snapshots” to assist us, then after
negotiating the filters of discovery, preservation and decipherment, we have to make our
interpretation with what we have (Bottéro 1992:21).
387
With this as background, the characteristics of Old Babylonian legal traditions were
introduced. The characteristics are not a numerus clausus and the aim of identifying these
characteristics is to give some insight into the dynamics and functions of Old Babylonian
family deceased division agreements.
These characteristics consist of some overlapping and exert a mirror effect on each other.
They include non-specialisation, religious impact, kingship and institutional enforcement,
group or social orientation, the concrete nature of legal acts, status quo/static nature of legal
traditions and openness.
Non-specialisation shows that a Mesopotamian contract was not perceived with abstract
principles of the law contract, but rather it was identified with performance acts. Rules,
traditions and institutions were not specialised.
The performance of legal traditions in society was connected with the religious impact on all
performance acts in agreements and actions.
Kingship and institutional enforcement existed in the case of disputes and then, in order to
enforce, decisions were made.
Social and group orientation ensured the maintenance of good relationships. Society was
socially orientated and the emphasis was placed on the interest of the group (Frymer-Kensky
1981).
Legal traditions were performed and legal acts were of a concrete nature. The performance of
legal traditions was through symbolism and multi-sensory communication (Hibbits 1992;
Malul 1988; Kruger 1998).
Some scholars were of the opinion that the Old Babylonian legal traditions were of static
nature (Westbrook 1994 & Renger 1977), while others do not agree with various different
emphases on different aspects (Greengus 1994; Buss 1994; Levinson 1994; Lafont 1994;
Matthews 1994 and Patrick 1994).
The openness characteristic indicates the public nature of the conclusion of the agreement 388
for instance, the public nature of the oath and witnesses.
Further study of ancient Mesopotamian life, customs and law will bring more insight
regarding the characteristics of Old Babylonian legal traditions.
As part of the introductory chapters, Chapter 3 referred to Old Babylonian city life and
landscape elements, with their possible influence on practical consequences for division
agreements. Agricultural and architectural factors and elements, together with each unique
situation in a family, obliged contractual parties to foresee and overcome practical problems
in altering co-ownership to sole ownership.
Practical implications of family deceased division agreements were outlined to explain these
challenges and to show that the agreement necessitated good co-operation and mindfulness of
all the beneficiaries. An ingenious construction of the division of complex estate assets was
managed and the reality was that the contractual parties had to conclude an agreement which
was not only agreeable but also profitable for all parties concerned.
Six case studies illustrated the ways of solving practical and theoretical problems. In one case
study, a Nippur division agreement was discussed by Stone & Stone (1981) and Stone (1987)
where four brothers agreed to a division agreement regarding communally-shared property
derived from their deceased father’s estate.
s in the case with other division agreements,
some rebuilding of the common properly would have taken place. The building and rebuilding of residential structures, although elementary, can only be obtained by readilyavailable, suitable building material such as the mud deposits from the Euphrates and the
Tigris.
Some good cooperation was needed between the contractual parties. In text N1, outlines were
drawn to assist the reading of a bigger picture perspective of the apportionment of the
communally-shared fields and house of all three brothers.
Here we noted how this
communally-shared property received as an inheritance from their father’s estate needed to be
divided into economically-viable pieces.
Not only did the parties have to agree using
different solutions of donation, exchange and “bringing in”, but they also first made an
apportionment, because of a Nippur legal tradition practice, to allocate a certain percentage to
the eldest as his firstborn share. Then the contractual parties consensually agreed to plot out
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the fields, gardens and house in separate sections. Equally, good knowledge of the potential
of the fields was needed for, after the division, each of these brothers needed to make his own
capital investment in order to receive good returns, get the capital back and make a good
living. The brothers had to know the type of soil and type of farming and organisation needed
in each piece of allotted land, regarding its economic viability. Ground formations and
geographical structures make a field and garden in certain areas of poorer or of lesser value.
In addition, especially in Nippur, the legal practice of casting lots necessitated the parties to
allot the land in pieces and afterwards cast lots from which each contractual party could
receive any allotted part.
The practice ensured that during the plotting out of the
communally-shared property into pieces, they would make sure that every piece was
economically viable.
In a Larsa division agreement L2, the two brothers agreed to the division of a built house,
some wood and an orchard, using the same factors just mentioned. The two brothers divided
the estate into exact portions, showing good cooperation among contractual parties who
mutually agreed to a division, whereas as co-owners they could not manage to agree regarding
the communally-shared properly.
The same instance occurred in Sippar in texts S11, S12 and S13 where three clay tablets
representing each brother’s share derived from only one orally-agreed division agreement.
Here the contractual parties through barter and practical reasoning changed co-ownership to
sole ownership.
In Chapter 4 of Part A, the significance of recorded Old Babylonian division agreements in
the scribal school traditions of the said city-states was outlined. In an Old Babylonian
agreement, a scribe influenced by his or her scribal school tradition captures only certain
terms and details of the agreements on clay tablets. Babylonian society is a marginalised
literary society. Written documents did not have the same value as today. Furthermore, every
act was performed in a multi-sensory communication act, strengthening not only the message
to be remembered, but binding the contractual parties in a performance act using all of the
senses, symbolic gestures and expressions to transfer information and acts in a performance.
Within the multi-sensory, symbolic communications and recitations of ritualised formulas, a
dramatic meaning and performance of legal acts was retained.
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Interpretation of a division agreement is limited, for it is only a concise recording of what was
orally concluded; and reflected the insight, frame of mind, methodology and choice of the
scribe. The scribe, of his own choosing, inscribes terms in a recording of a concluded oral
transaction and by deduction, mirrors the different scribal school practices in the three citystates.
In the study of the scribal school practices, traditionally the focus fell on well-known accounts
of the Sumerian school, named the edubba, wherein scholars such as Kramer (1951),
Falkenstein (1953) and Sjöberg (1976) focus on the Sumerian literary compositions, studying
the lexicon, grammatical texts and school life.
Later, other approaches emerged where scholars such as Tinney (1998; 1999); Veldhuis
(1997; 1997-1998; 2000); Delnero
010
characteristics and other formal features”.
and Gesche
000
study the “physical
ere we can note the difference in types of texts
from an elementary phase to a more advanced phase, of which the drafting of a division
agreement is part of the curriculum in a scribe’s education.
The third approach is a focus on archaeological evidence by scholars such as Robson (2001);
Charpin (1986); Brusasco (1999-2000) and George (2003), reflecting on evidence that the Old
Babylonian scribal schools were not present-day universities, but private scribal schools in
which only a few scribes received their training at any given time. Although these were
smaller schools, being a trained scribe made such a person part of an élite and earned respect
from his/her society. In these scribal schools, the scribes were trained to painstakingly copy
and recopy information, preserving some information for the contractual parties concerned
and safeguarding information which today might assist us in some way to learn more about
the life and legal practices of Old Babylonian Sippar, Larsa and Nippur (as well as other citystates). Nevertheless, one must bear in mind the problems with interpretations and written
significance of the recording of an oral agreement’s terms by a scribe.
In Part B, the core section offered some reflections on the complex legal notion of a family
deceased division agreement from a deceased estate.
Firstly, in Chapter 5, special attention is accorded to a methodology-design for the study of
forty-six division agreements from Old Babylonian Larsa, Nippur and Sippar. In the study of
391
legal textual sources in the ancient Near East, different methodologies and different
approaches are developed.
In a jurisprudential content analysis of these recorded Old Babylonian division agreements, an
analysis-model approach of different categories of essential, natural and incidental elements
was undertaken. Specific legal traditions and the choices of contractual parties in a city-state,
reflect unique legal practices and scribal traditions in the given city-states. An analysis-model
was designed to simplify and overcome problems, with the aim of identifying the categories
and sub-categories of certain prerequisite requirements, legal practices and scribal school
practices, as well as the intrinsic details of the agreement.
This was done also to prevent getting lost in the details thereof in similar agreements such as
quasi-division, adoption, living estate owner division and dissolution of partnerships, which
display different unique purposes and various mechanisms and outcomes. This necessitates
the identification of the complex details of the family deceased division agreement. All of
these types of division agreements have one specific term present: namely, that the
contractual parties mutually agree to the terms of the agreement, with specific terms, namely
the Akkadian i-zu-zu and Sumerian term ba and se-ga-ne-ne-ta. Another identified similarity
is that the contractual parties with each division agreement have at least one similar aim in
mind: namely, the dissolution of co-ownership. By contrast, the division agreement has three
potential legal notions as mechanisms for dissolution of ownership: namely, a sale, donation
and exchange.
This agreement is furthermore per se different from a stand-alone sale,
donation and exchange agreement.
Thus, the analysis-model used to delineate these
agreements from deceased family estate agreements, by identifying which elements exist only
in a family deceased division agreement and in the quasi-adoption agreements, dissolution of
a partnership and living estate division agreement.
In order to compare the intrinsic details of prima facie family deceased division agreements
through a content analysis, a specific methodological approach needed to be chosen and/or
devised. Malul’s 1990 one methodology approach is the typological comparison. For
purposes of this thesis, the typological comparison is important and this comparison applied
to societies that were geographically and chronologically distant, lacking historical connection
(Malul 1990:14). Its aim is a study of the different forms of society, to create a theoretical
model for the study of a universal, human, social phenomenon (Malul 1990:15).
392
In Chapter 6 of Part B, there follows an exposition of certain terms present in the texts. The
recorded evidence of contractual terms indicates that each term reflects a specific meaning for
the contractual parties. The denotation of the word can direct the reader to the possible
meaning of the word. However, the context should be kept in mind to establish the type of
agreement in terms of what and how the contractual parties devise the provisions of the
contract, by studying each provision on its own and then reading all the provisions together as
a holistic text.
With the identification of essential elements that constitute the basic requirements for an
agreement to be a family deceased division agreement, a few terms were identified. They are
the mutual agreement clause, inheritance clause and beneficiary clause.
The mutual
agreement clause includes the terms ba (divide or to share allot), še-ga-ne-ne-ta (to agree, be
in agreement), and i-zu-zu (zâzu(m) zâzu (to divide) It is used together with geš-šub-ba-ta
(casting of lots), ibila (beneficiaries) and a-la (inheritance share).
In terms of the inheritance clause, the Sumerian term al-ha and the Akkadian term zittu(m)
are outlined and translated as “inheritance share”. With respect to the beneficiary clause, the
term ibila, meaning beneficiary or heir, is explained.
Some regular natural elements occur respectively in the three city-states, namely:
“bringing in” (Nat 2): búr clause - give in balance to X;
“division by lots” of “casting of lots” (Nat 3): giššub-ba-ta and isqu
“as much as there is” (Nat 5): gamāru, ištu, gál-àm, gamāru – also means completeness,
all of the assets; and the term “from straw up to gold”.
“no claim” (Nat 6): inim nu-um-gá-gá-a - shall not raise any claims (speak a word) and
šeš-a-ne-ne ba-ani-ib-ge4-ge4-ne - brother against brother will not claim against one
another.
an oath (Nat 7): pàd - to name (in the name of X).
preference portion (Nat 8):
banšur and/or zaggulá and/or síb-ta are reading together
gis
with mu-nam-šeš-gal-šè - (ceremonial) table, a cultic table: privilege/firstborn-share;
eldest brother
“equal shares” (Nat 9): mi-it-ha-ri-iš - enumerated to the same extent or degree.
393
witnesses (Nat 12): igi or ma ar - means literally face (before).
In irregular natural elements, only certain terms were accentuated, such as only one legal
practice to be found in a family deceased division agreement of Nippur, namely the
adoption/support clause (Nat 1).
In Sippar, the following legal practices are identified:
namely, a “heart is satisfied” clause (Nat 4), a trust clause (Nat 10) and a usufruct clause (Nat
11).
Each term’s meaning, in the context of the text, laid bare the responsibility of the scribe. The
scribe took due care in his or her articulation of the agreed-upon terms and responsibilities of
the contractual parties, onto a clay tablet. For this, the scribe would carefully choose his/her
words under the influence of his/her scribal school tradition. One must bear in mind that this
kind of agreement, as shown with the different legal practices such as a trust, usufruct,
preferential share and “bringing in”, can have lifelong consequences for the contractual
parties concerned, regarding their rights and obligations towards one another and other parties
as per the agreed terms of the agreement.
By means of this approach in Chapter 7, the agreements in each city-state were discussed and
compared. It is established that all forty-six agreements are family division agreements from
a deceased estate and that there are certain legal practices and scribal school traditions that are
predominantly part of each city-state, with some discrepancies.
In addition to this comparison, a geographical comparison of city-state vs. city-state followed
in Chapter 8. Each city-state has a different philosophical outlook and means of division; as
well as scribal school practices, in completing a family deceased division agreement there is a
variety of similarities and differences.
In Larsa, contractual parties and scribes have a
“practical-idealistic” outlook, Nippur were “traditionalists” and Sippar act as “innovators”
regarding their philosophical outlook, management of division and scribal school traditions.
Larsa demonstrates something of both of the Sippar and Nippur’s main traditions and
philosophies in the conclusion and recording of a family deceased division agreement. Sippar
and Nippur resemble each other less in this regard.
Some of the main findings from Chapters 7 and 8 are now abridged in the “main findings” of
this chapter.
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9.2 MAIN FINDINGS
9.2.1 Comparisons of different elements of the said agreements in each of the city-states
of Larsa, Nippur & Sippar
9.2.1.1 Introduction
Forty-six family deceased division agreements are identified and chosen from Old Babylonian
Larsa, Sippar and Nippur.
These agreements are compared in a jurisprudence content
analysis, using a typological design methodology, known as an analysis-model.
Each particular agreement is systematically categorised, outlined and studied within a
framework of prerequisite essential elements, together with two other categories of elements:
namely, natural and incidental elements.
The differences and similarities between the
agreements studied in this framework of categories and sub-categories in a city-state are
compared. The conclusions based on the three types of elements are as follows:
9.2.1.2 Summary of essential elements
All of the essential elements are present in the texts. There are specific terms or words
reflecting these elements and, in some instances, conclusions are drawn from the context in
the texts.
In most of the texts, brothers are the contractual parties. In a few instances in Sippar and
Larsa, sisters are. In the majority of the Sippar texts, where sisters are recorded as contractual
parties, they were also priestesses and in each text are shown to have a unique relationship
with her/their brothers and/or sisters. In Nippur, no sisters are recorded as contractual parties,
although in one exception a daughter is recorded as such.
In the Sippar, Larsa and Nippur texts, other members of the family, such as the nephew of an
uncle, are contractual parties; however, these instances occur only in exceptional cases.
The father is usually the recorded estate owner. In exceptional cases, other family members
are the estate owners, with the majority of alternative estate owners in Sippar and Larsa being
the mother. In Nippur, a mother, as a rule, is not recorded as a deceased owner. In Larsa, the
records refer mostly to divisions of fathers’ estates but in two texts both parents’ estates are
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involved; there are no texts in Larsa where only a woman’s the mother’s estate is divided.
In Sippar, only three texts record a division of the mother’s estate and in only two texts the
mother’s and father’s estates together. In three texts, the mother is the only owner; although
in such instances the agreement is concluded between women (daughters of the deceased)
who are all priestesses and sisters to each other.
In Nippur, two different types of estate divisions with an estate owner occur. The first is
straightforward where the father is the estate owner. The other is more complex, showing
records of divisions of the estates of both the father and/or his brother (uncle).
In Larsa and Nippur, vast estates and varieties of assets are included in the divisions. In
Nippur particularly, the scribes use elaborate description of the assets, making it easier to
conclude that all the valuable estates, including the entirety of the communally-inherited
assets, were divided between beneficiaries.
In Nippur, edadi-ships are an important
inclusion. In Sippar, although the references to the assets are elementary, there are terms such
as “from straw to gold” and “as much as there is” in some of the texts, indicating that the
communally-shared inheritance was divided.
The consensual agreements by the contractual parties in each city-state reflect the
predominant terms used there: Larsa made use of the Akkadian and Sumerian variants zi-i-zu
and ì-ba-e-ne; in Nippur a Sumerian variant, še-ga-ne-ne ta, appears and in Sippar, an
Akkadian variant, i-zu-uz-zu, can be found.
The mechanisms for a division are mainly those of exchange although, depending on the
preferred legal traditions, there is support of other legal practices to assist in the given
practice. For instance, in Nippur the emphasis frequently focuses on a specific division of
portions, with the additional option to make use of the predominant preference rule of that
city-state. This reflects a practical need for the overall use of the “bringing in” clause and
division by lots to manage a division equally.
Larsa’s estate divisions are less precise and are predominantly managed by an exchange of
assets, with the said exchange being supported by a small minority of actions relating to
“bringing in” and casting of lots. There is an emphasis in the texts that the division took place
with equal shares as a means of compensating for this lack of precision. Thus, with regard to
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its philosophy and way of estate division, Larsa can be said to be more in line with Nippur.
Sippar adopts a more elementary approach to estate division, using the mechanism of
exchange: in only one text is the “bringing in” clause recorded, while in one other the casting
of lots is used. In Sippar, exchange is used together with a wider range of legal practices.
These are more focused on making sure that harmony was established between the
beneficiaries, the nature of a few of the practices being shown as symbolic. The symbolic
acts and terms assist in the analysis of the type of assets used and rights assigned to the new
owners in the division, as well as the formalities of the conclusion of the contract. Examples
of these are expressions such as, “their heart is satisfied”, “from straw up to gold” and “as
much as there is”. Additionally, the no claim clause, the special oath ceremony and the
witness clause, as well as two anomalies - namely, the use of a usufruct in three texts and the
implementation of a trust - are used.
In Nippur, Larsa and in Sippar, donation is used as a supplementary mechanism for the
division of the assets and/or awarded portions; it is readily noticeable when a precise division
of assets and/or portions thereof do not occur. Donation is then used to assist in the final
winding-up of the estate.
9.2.1.3 Summary of natural elements
In the legal practices reflecting a category of twelve elements, these practices are options for
the contractual parties in Old Babylonian Larsa, Nippur and Sippar to choose. The legal
practices serve as mechanisms, procedures, formalities, implementation and enforcement, as
well as conditions and provisions of the division agreement. A summary follows:
The adoption/support clause (Nat 1) occurs only in one Nippur text.
The “bringing in” clause (Nat 2) is present in the majority of the Nippur texts, in some of
those from Larsa and in one Sippar text.
The “division by lots” clause (Nat 3) is a general practice in Nippur, appearing sometimes in
the Larsa texts, with only one occurrence in the Sippar texts.
In Nippur, the preference portion (Nat 8) is a normal occurrence in the majority of the texts,
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with one occurrence in the Larsa texts, but does not appear in those of Sippar.
he phrase, “as much as there is” Nat
, occurs only in six of the ten Larsa texts and in the
majority of the Sippar texts where it occurs alone or together with another symbolic
expression, “from straw to gold”.
The equal shares (Nat 9) occur in Larsa in only a few texts, with one occurrence in Sippar and
none in Nippur.
The no claim (Nat 6) clause is a general one, which occurs in ninety percent of the Larsa
texts, fifty percent of those in Nippur and in the majority of the Sippar texts.
he “heart is satisfied” Nat 4 , trust Nat 10 , usufruct Nat 11 and oath in the temple Nat
7) clauses only occur in Sippar, although the general oath is present in the majority of all the
texts in the three city-states.
In Sippar with the usufruct and trustee, there is a variation from the normal raison d’êtr˹ for a
division agreement which entails the dissolution of ownership. In such cases in a division
agreement, only certain communally-held property was changed into sole ownership, while
with other assets the contractual parties agreed to retain co-owners, and to manage a lifelong
commitment to the advantage of a designated person, usually their sister. By agreement, the
obligors, usually brothers, contractually agreed to provide their priestess sister with
maintenance support. They subsequently had a heavy financial burden placed upon them in
the compliance with their contractual duty.
This lifelong commitment ensured that the
contractual parties had to find a peaceful way of managing the property or they could forfeit
ownership in which they had probably invested some capital (from their own funds) to
maintain it and to ensure good interest.
Nippur devises through tradition certain legal practices that ensure that the division is exact
and precise, through scribal traditions and trained scribes who precisely record agreed terms
reflecting a thorough description of the property and its boundaries, as well as reflecting the
agreed terms. In the ten agreements, no usufruct or trust is found. No provision is made for a
sister regarding maintenance rights over communally-inherited immovable property. Through
the means of the division, the contractual parties from Nippur in their tradition-practical
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mind-set devised a division that served as a clean-slate start (tabula rasa).
Larsa, however, used the two opposite styles of Nippur and Sippar in each given text to the
advantage of the contractual parties. In the ten chosen Larsa texts, no trust or usufruct, thus
no lifelong commitment-terms, were found.
hey do use the word “equal share” and say that
the estate is “completely divided”, thus are less inclined than Nippur to use traditional legal
practices to divide the portions meticulously into exact portions.
The concept of witnesses (Nat 12) is recorded in almost all of the texts: if not reflected, it is
sometimes omitted for unknown reasons by the scribe. Alternatively, it is possible that the
tablet is damaged. It is thus a normal practice in Old Babylonian division agreements that
witnesses are present at the conclusion of the terms and conditions of the text to render
testimony and assistance in possible disputes. The terminology describing the witnesses
employs both Akkadian and Sumerian variants with the same meaning, in which it is
indicated that these witnesses appear in front of the contractual parties. They are actually
seen by the contractual parties and it is concluded that they are therefore present during the
proceedings at the conclusion of the agreements.
9.2.1.4 Summary of incidental elements
In the analysis of the forty-six deceased family division agreements from Old Babylonian
Larsa, Nippur and Sippar, the incidental elements are categorised into two main groups:
namely, written formalities and qualities of the texts, which reflect scribal school traditions.
The comparisons are summarised as follows:
Written formalities of division agreements:
In the Nippur, Larsa and Sippar texts, the names of the contractual parties are shown with
some names being Sumerian, Akkadian and, in Nippur, even Semitic.
he scribe’s choice to include the birth ranking order normally occurs in texts where the
gišbanšur zaggulá clause is present. In Nippur, the preference share is the dominant clause
by which birth ranking order is indicated or implied. In Sippar, no birth ranking is indicated;
in Larsa, it is an uncommon term, found in only one text indicated by the preference share.
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In Sippar, the description of the property is limited to that information necessary for
identification of the assets only. In Larsa, the property was discussed thoroughly and in
detail, with an only a few texts containing less detail. In Nippur, however, the scribes
demonstrate a careful description of the assets.
In the three city-states, there are definite scribal traditions regarding the oath procedure. It is
an open question, nevertheless, as to what extent the contractual parties play a role in the
choice of the god or king or even in reference to the mentioning of the city Sippar themselves.
For instance, in Nippur, the parties only swore oaths in the name of the king. In Sippar, the
oath clauses pertained only to certain gods and the reigning king or only to the gods and/or the
city. In Larsa, the contractual parties swore oaths to different gods and the reigning king.
The witness clause is a general clause in a division agreement and scribal tradition reflecting
the name, status and professions of the witnesses, together with the mention of the name of
the scribe, seal engraver, merchant, law commissioner, soldier, overseer, priest, priestess,
surveyor and the builder. In Larsa, the name of the witness and his status (son of X), the
scribe’s name and profession dub-sar) and the professions of a merchant, surveyor and a
builder are mentioned. These are the only professions named in the witness clause. In
Nippur, there are witnesses whose status is mentioned along with that of the dub-sar, a scribe
and bur-gal, a seal engraver, which include a priest, soldier and overseer. In Sippar, names of
witnesses without status, the name of the scribe (ṭupšarrum), names of witnesses with status
(son (dumu) of X) only, names of witnesses with status (son (dumu) of X) along with a
scribe (dub-sar) and witnesses with their names and status (son mâr of X) and daughter are
referred to. Also professions such as priestess (lukur) and law commissioner are mentioned in
the Sippar texts, as witnesses.
The qualities of the texts are discussed in the previous chapters and the discussion gives some
insight into the different scribal school traditions of the city-states.
9.2.2
Final Findings
It is evident that with regard to the essential, natural and incidental elements, the cities of
Nippur and Sippar follow some instances of different scribal traditions and that they differ in
their general philosophical outlook, as well as exhibiting differences regarding their choice of
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the application of legal practices in the conclusion of an agreement of the type studied. Larsa
has some commonalities with regard to Nippur and Sippar’s main traditions and philosophy in
the conclusion and recording of such an agreement. Overall, Larsa and Nippur demonstrate
more similarities, whereas Nippur and Sippar have less in common.
Larsa were “practical-idealists”, Nippur “traditionalists” and Sippar act as “innovators”. The
schematic outline (infra) illustrates the differences and similarities of the details characteristic
of these agreements in each city-state.
The following common characteristics occur in all three of the city-states, namely:
Essential elements: all of the elements to qualify the agreement as a family division
agreement from a deceased estate
Natural elements (legal practices) representing the formalities, implementation and
enforcement of the agreement:
o No claim clause
o Witnesses clause
o Oath clause
Incidental elements (scribal school practices)
o Name of the contractual parties and mostly relationship to each other
o Date formula
o Seal impressions
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Figure 15 Schematic outline reflecting similarities and differences in accordance with the analysis-model
402
Notwithstanding a few similarities between two cities, (i.e. Larsa and Nippur; Larsa and
Sippar) there are a few differences between all three of the city-states.
Nippur’s strictly practical tradition is reflected in its legal practices and scribal traditions. In
the given agreements, they do not rely on statements of equal portions (predominantly
existent in Larsa) nor on symbolic expressions (which occur in Larsa and Sippar). They rely
predominantly on the implementation of practical traditional mechanisms and procedures.
The implementation of the Nippur division agreement is practical and thorough, not only in
the recording of the agreements, but also in their winding-up. This mind-set is already
demonstrated in the practical problem-solving approach to complications encountered in the
segmentation of portions and final division. In the Nippur texts, practical procedures are
used, such as the casting of lots and the “bringing in” mechanism to make sure there is an
equalisation of values. The preference share is predominantly made use of in the Nippur
texts, reflecting a specific Nippur tradition.
With regard to the essential elements, in the identification of essential elements of such an
agreement, it is evident from the division texts in each of the city-states that, as a rule,
brothers generally act as contractual parties. In Nippur, the role of the brothers is significant:
with more complex division agreements, the role of the extended family is also included with
reference to uncle and nephews. These are, however, the exceptions to the rule.
In Sippar, in some instances women are included as contractual parties and to a lesser extent
in Larsa. In Sippar, women are named as estate owners and in Larsa they are portrayed as
estate owners in conjunction with their husbands, not as individual estate owners.
As regards terminology, in particular the term indicating mutual consent, Nippur uses a
Sumerian variant, Sippar, an Akkadian and Larsa uses both Sumerian and Akkadian variants
of terminology.
When examining the natural and incidental elements, Nippur has a strong Sumerian scribal
school tradition, which explains its reputation for snobbery (Leick 2001:143). The recordings
of the division agreements are neatly carried out by scribes. Included in the document are the
names, status of the parties, their birth order, good lengthy descriptions of the assets, and
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special legal terms are elaborated, with a majority of the texts indicating the presence of
sanctions, oath clauses, witnesses and seals.
Sippar, on the other hand, focuses less on details and more on relationships between the
beneficiaries and the establishment of harmony, with the emphasis on symbolic expressions in
the texts. There is a wider range of options used in Sippar, with agreements having variations
to accommodate special circumstances and the protection of rights. The parties can decide
what terms and conditions to use in accordance with their circumstances. In one text a
“bringing in” is used, in another the division of lots, in yet another a trust is established and in
three texts the rights of daughters are looked after in the establishment of usufructs. In the
majority of the texts, exchange is used as a mechanism for division. The contractual parties
only state in the contract that the division is finished “from straw to gold” everything is
included. In one text, the division is carried out using equal shares. These mechanisms and
expressions compensate for the lack of detailed description of the assets, the practical
mechanisms and procedures as used in Nippur. In Sippar, the contractual parties utilise a
wider range of different legal practices, more than are used in Nippur and Larsa. The only
inclusion in Larsa and Nippur, which is not included in Sippar, is the preference share, which
is made use of particularly in Nippur. In Sippar, the tradition seems to be that the brothers
inherit in equal shares. In contrast with Nippur, however, the texts indicate that the sisters
from Sippar acquire rights in property.
In Sippar, women have a special place in the agreements, are allowed to be contractual
parties, and in one recorded instance, an estate owner. The priestesses are included in the
majority of the texts involving female beneficiaries. In some texts, a priestess is also a
contractual party, a usufruct is agreed upon where some built-in precautionary mechanisms
are established to protect her, and additional obligations are given to her brother/s to look
after her. There are also agreements where the estate owners are women: in such cases, all
beneficiary contractual parties are women and priestesses. The estate owners may be either a
father or a mother.
he symbolic expressions are unique to Sippar, making use of expressions such as “the heart
that is satisfied” and “from straw to gold” in the agreement. Unlike Nippur, in Sippar there is
no strict adherence to traditional practices.
404
Property in the Sippar texts is described only to the degree needed to make the assets
identifiable; the extent of the descriptions differs in the texts. Apart from the general oath,
another symbolic gesture is noted as part of concluding the agreement: in three texts, the
ceremonial cleansing in the temple is included; nevertheless, this is not regarded as a general
practice. It again seems to point to the Sippar ethos of maintaining harmony while looking at
each agreement on its own merits.
The Larsa texts, in similar vein to the Nippur texts, point to those city-states’ predisposition to
practicality, although Larsa exhibits this tendency to a lesser extent, devising a more precise
and equal division of portions. As in the Sippar texts, the sisters are included as a contractual
party and the woman is included as an estate owner in an agreement, together with her
husband, the father of the contractual parties who are her sons. There are no Larsa texts
which portray the woman as solely an estate owner.
In the Larsa texts, the quality of asset description can be placed somewhere between those of
Nippur and Sippar. They are more descriptive than those of Sippar, while less so than those
of Nippur.
The “bringing in” clause and the division of lots to assist in a practical equal division exist in
the Larsa texts, although to a lesser extent than in those of Nippur.
Similarities in the Larsa and Sippar texts regarding the symbolic expression of “as much as
there is” have been found. Additionally, a symbolic expression, predominantly a Larsa term,
is the statement by contractual parties that the division is concluded in equal shares,
emphasising the importance of fairness in that city-state. On the other hand, there are fewer
Larsa texts using the division and “bringing in” clauses than are found in the Nippur texts.
While the tradition of a practical approach to the division of estates is found in the Larsa texts,
it exists to a lesser extent than is indicated in the Nippur texts. Symbolism plays a role in the
implementation of the legal and scribal traditions in Sippar, and in Larsa, but once again, it
does so to a lesser extent in Larsa than in Sippar.
In terms of the comparison of differences and similarities in these agreements, it can be said
that the division agreement was used as a successful, timeless estate administration
405
mechanism and tool, obviating undesirable consequences of co-ownership of bequeathed
property.
9.3 SUMMARY OF CONTRIBUTIONS
9.3.1
Different perspectives of division agreements in Larsa, Sippar and Nippur
The details of the Larsa texts (L1-L10), Nippur texts (N1-N10) and Sippar texts (S1-26), as
reflected in Parts B and C, are outlined using the concepts of essential, natural and incidental
elements by means of specific terms and clauses; they illustrate different perspectives
regarding their legal practices and scribal school traditions.
9.3.2
Development of analysis-model
The family deceased division agreement is a complex legal notion, with the aim and purpose
of the methodology being to simplify the study of its content analysis. An example using the
concept of a house was developed to assist in explaining the different categorisation of
elements.
The analysis-model described can be used for analysing other ancient Babylonian agreements
such as sale and adoption agreements; as well as other types of division agreements. This
model serves to identify and outline what elements are to be classified in different groups
within the overall framework of certain essential requirements and elements being present to
qualify as a particular agreement. Within this framework, other aspects of a legal notion can
be systematically grouped, such as the identification of the elements and terms chosen by the
contractual parties and which are governed by legal traditions and may display a specific
scribal tradition and scribal writing style.
9.3.3
Analysis-model
An illustrative example is given to explain the methodology. The concept of a house is used
to describe the family division agreement which needed essential building materials (essential
elements) to qualify as a house. These elements are present in an oral agreement and are
reflected in the recorded agreement. When the basic building materials (essential elements)
are all present, the “house” or agreement is identified.
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Not every house nor, in this instance, every division agreement is the same. The structure of
the “house” or agreement may differ in accordance with different legal practices and
preferences of contractual parties regarding the agreed terms and conditions. For instance, the
house can have a patio, or be a double storey or have a garage attached to it. These are known
as the “natural elements”, which refer to the legal practices, which govern an agreement by
virtue of the choice of the contractual parties and/or city-state.
Finally, in the recording of an oral agreement by a scribe, the agreement is “decorated” as the
interior and exterior of a house might be: this process is called the “incidental elements”.
he
decorations may, for instance, include the choice of type of windows and the colour of the
paint. In a family deceased division agreement, the scribe, in accordance with the particular
scribal tradition in a given city (and possibly, time), would use different techniques and styles
“decorations” to capture the oral agreement on a clay tablet.
9.3.4
Motivation for analysis-model
In analysing and studying such agreements, an analysis-model has been developed, the
motivation for which is as follows:
The division agreement is a complex legal notion and potentially, if chosen by beneficiaries in
one agreement, at least one or some of all three legal constructs can occur: namely, a sale,
exchange and donation. These differing constructs reflect the uniqueness of the solutions of
each agreement and to a certain extent serve as an indicator of the specific legal practices of a
certain city-state and special circumstances of each family involved.
he “basic requirements” of the family deceased division agreement are identified to
differentiate them from other types of agreements. There are, for instance, similar agreements
such as a quasi-division agreement in an adoption agreement (quasi-adoption agreement), a
living estate owner’s division agreement between his future beneficiaries and the dissolution
of a partnership in Old Babylonia, which, prima facie, is similar. A methodology is used to
delineate these agreements from other deceased family estate agreements by identifying
which elements exist only in a division agreement.
407
9.3.5
Evolutionary stages in practice in the development process of a division
agreement
A practical example is given of the aspects of the evolutionary process of the said agreement.
This is done as a description of stages. The motivation for this is to avoid the use of too much
jargon - namely, co-beneficiaries, co-owners and contractual parties - with the resulting
possibility of confusing the reader.
Apart from the practical motivation, a technical
explanation is given of the evolutionary process from the receiving of inheritance to the
conclusion of the family deceased division agreement in the different stages.
The division agreement can be categorised into three stages: from the receiving of the
inheritance by co-beneficiaries until the conclusion of a family deceased division agreement
between the contractual parties.
The first stage deals with the estate bequests made to beneficiaries within a kinship group, in
which more than one beneficiary receives an inheritance in equal undivided shares, from one
or more asset/s of a deceased estate. In this way, the beneficiary becomes a co-beneficiary in
undivided shares of the bequeathed property in proportion to his or her share.
In the second stage, the co-beneficiaries become co-owners and as “partners”, they manage,
enjoy and use co-ownership of the property.
The third stage starts when, owing to possible struggles or unease regarding the sharing of the
communally-shared assets, the co-owners subsequently decide to divide some or all of the
originally-received inherited assets. Co-ownership then becomes sole-ownership, regarding
some or all of the communally-shared assets. To achieve this, the contractual parties must
consensually agree to divide the communally-held property.
9.3.6 Practical problems encountered by contractual parties in the conclusion of a
agreement
The practical realities encountered by contractual parties in devising such an agreement are
explained, as well as the importance for beneficiaries to develop co-operation within a family
discussion and use practical reasoning to facilitate the change of co-ownership to sole
ownership regarding some or all of the communally-held inherited assets. Such an agreement
408
is not as straightforward as it appears in its concise recorded form.
Apart from the practical procedures and application of legal practices, it is stressed that in Old
Babylonia the existing agricultural and architectural problems, needs and elements could have
made such a division complex. This emphasises the ingenious construction of a division of
complex estate assets that may consist of fields, gardens, house, slaves and wooden objects,
which must take place in order to satisfy all parties.
9.4
POSSIBILITIES FOR FUTURE STUDY
The division agreements of Old Babylonian Larsa, Sippar and Nippur are the samples
studied in this thesis, but only with regard to certain chosen agreements.
As new
agreements are discovered, further information may indicate other practices, and more
discrepancies, similarities and differences may become known. A comparative study
could reveal new insights based on other Babylonian city-states such as Tell Harmal,
Babylon and Ur Additionally, comparative studies of other periods, as far back as the Ur
III, Late Babylonian and even the Neo-Babylonian period, have found recordings of
division agreements in the legal corpus in these periods. A comparison study between the
periods might reflect, for instance, new insights in the possible development of the
division agreement or support some scholars (Renger 1977; Westbrook 1994; Wells &
Magdalene 2009a; 2009b) who argue for the static nature of ancient Near Eastern legal
traditions.
Each legal practice element captured in the natural elements and in incidental elements of
scribal school traditional practices would represent a study on its own. Various aspects of
each of these discrete elements require further study. For instance, investigating the
limited rights of implementation of usufructs in Sippar; the priestesses and their rights as
created in a division agreement; and the rights and role of women, especially their
relationships to their families with regard to division agreements, particularly in Sippar
and Larsa.
Cognitive studies of all types of division agreements in ancient Babylonian different citystates, especially those of Larsa, Nippur and Sippar may show differences of philosophical
outlook in the application and mechanisms of legal practices.
409
The characteristics of ancient Mesopotamian traditions in this thesis are not a numerous
clausus, constitute only a reflection, and supplement an understanding of Old Babylonian
thought in the practice of legal traditions. The identification of further characteristics of
ancient Mesopotamian legal traditions may add new insights into the different legal
practices, legal constructions and recordings.
When examining the application of inheritance rules or the discretion of the testator
regarding his wishes for the beneficiaries of the estate, one must be vigilant to avoid,
consciously or unconsciously, western notions or bias. In any society there are cultural
phenomena, factors and underpinnings, unseen and unrecognised, which play an important
role in the understanding of social and family institutions, such as inheritance and its
implications for individuals, the group and social structures. Factors such as gender, race,
age, sexuality, social standing and marital status all played a significant role in
determining who could inherit and how a person inherited (Roth 1998; 1987; FrymerKensky 1981; Boecker 1980). A further study, focused only on the different group and
social structures reflected in a family deceased division agreement, might afford a better
understanding of the dynamics of Old Babylonian family life.
Investigation into the possible historical (chronological) connections between Nippur and
Sippar and other city-states, including time-periods, could substantiate such an historical
connection. Detailed study of different case studies from different periods might show
similarities in the investigation of division agreements in the ancient Near East and its
possible connection with today’s redistribution division agreements (cf. Appendix K).
410
LIST OF ABBREVIATIONS USED IN THE BIBLIOGRAPHY
AA
ArchAnz Archäologischer Anzeiger. Jahrb. des deutsch.
AfO
Archiv für Orientforschung
AJA
American Journal of Archaeology
ALER
American Law and Economics Review
Am.J.Comp.L.
American Journal of Comparative Law
ANES
Ancient Near Eastern Studies (J B Pritchard) 1955
ARA
Annual Review of Anthropology
Arch
Archaeology
AS
Assyriological Studies
ASJ
Acta Sumerologica
BA
Biblical Archaeologist
BASOR
Bulletin of the American Schools of Oriental Research
BiOR
Bibliotheca Orientalis
Chi.-Kent.L.Rev.
Chicago-Kent Law Review
Comp Stud Soc Hist
Comparative Studies in Society and History
Emory L.J.
Emory Law Journal
Hist Educ Q
History of Education Quarterly
Int’l J.L. & Psychiatry
International Journal of Law and Psychiatry
Ir. Jur.
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Iraq
Iraq, London (British School of Archaeology in Iraq)
Israel L.Rev.
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JAOS
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JESHO
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JNES
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JSS
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Proc Am Phil Soc
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SALJ
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Stell LR
Stellenbosch Law Review
VT
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WA
World Archaeology
ZA
Zeitschrift für Assyriologie
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Doctoral thesis: D Litt et Phil. University of South Africa. Title: Family deceased estate division agreements from old Babylonian Larsa, Nippur and Sippar (Volumes 1 & 2)
2012
In most cases in a deceased person’s estate, there are problems with co-ownership where more than one family member inherits the deceased family estate assets. To escape the perils of co-ownership the beneficiaries consensually agree to divide the inherited communallyshared asset/s. This agreement can take place immediately after the death of the family estate owner or some time later regarding some or all of the said assets. On the conclusion of the division agreement, the contractual party who receives the awarded assets enjoys sole ownership and the other contractual parties by agreement retract their ownership. In a jurisprudential content analysis of forty-six recorded family deceased division agreements from Old Babylonian Larsa and Nippur, essential elements are identified which are the framework and qualification requirements for a family deceased division agreement. Within this framework the concepts, terms and elements of the agreement are categorised as natural and incidental elements, which reflect the specific law traditions and choices of contractual parties and show the unique scribal traditions in the different Old Babylonian city-states of Larsa, Nippur and Sippar. The aim of the study is to shed a more focused light on the interpretation of recorded Old Babylonian division agreements and to show that the division agreement was a successful, timeless, estate administration mechanism and tool to obviate any undesirable consequences of co-ownership of the bequeathed property....Read more
