Things and Contracts
During their first settlement of the land, the Hebrew tribes were pastoral people, owning “oxen and asses, flocks and manservants and maidservants” (Genesis 32:6) and acquiring their first immovable property. In order to be able to move easily, the family lived mainly in tents and did not possess many movables. Even at this early stage, however, everyday goods must have been recognized as personal property, while rights of water as well as grazing and burial grounds belonged to the group as a whole.
Immovables were acquired from the native population by conquest or by treaty (Genesis 48:22). The conquerors installed themselves in houses that they had not built and took possession of fields and orchards that they had not planted (Deuteronomy 6:10–11). Some of the real property was purchased from its former owners by peaceful negotiation (Genesis 23; 33:19), while other lands were acquired by colonization (Joshua 17:18).
The earliest settlement was an open land, while the cities were mainly held by the Canaanite population. Land ownership was still vested in the tribal group, division among the different families taking place only gradually. However, in the course of time most of the property had been allotted to the “houses of fathers,” i.e., to small family groups. The law speaks of the landmarks “which they of old time have set in your inheritance,” and considers the family share as an inheritance “that the Lord your God gives you to possess it” (Deuteronomy 19:14).1
As usual among peasant people, the ideal was “every man under his vine and under his fig-tree” (1 Kings 5:5), preserving the inheritance of his fathers (1 Kings 21:3). However, this individualism was moderated by the ancient idea of the land being God’s inheritance: “The land shall not be sold in perpetuity, for the land is mine, for you are strangers and sojourners with me” (Leviticus 25:23). The rules of Jubilee and of redemption were, in fact, intended to preserve the ideas of divine ownership and of the common tenancy of the family with regard to any single plot of land.2
The full system of common property was preserved in some circles, such as the Rechabite family and the prophet-disciples. Similar remnants of this concept are found in the rule of the levirate, which mentions “brothers dwelling together” (Deuteronomy 25:5), i.e., living in an undivided household and, perhaps, in the division by lot of certain lands (Psalm 16:5–6; Proverbs 1:14; Micah 2:5).
Meanwhile many of the Canaanite cities had passed into Israelite hands and the property within the city walls was divided amongst the new town dwellers. Except for the Levitical cities, which upheld the tribal tradition, the rules of Jubilee and of redemption did not apply in the cities. Instead, there existed only a limited right of redemption exercisable within one year of the date of sale (Leviticus 25:29).
Even in the open country, however, those provisions soon became obsolete, so that transfers of land were made without any limitation based on the rules of Jubilee and redemption. This is the background to Naboth’s reaction toward Ahab’s offer to buy his vineyard (1 Kings 21:2). Under the monarchy it became possible to acquire large estates and to have them cultivated by slaves and hired workers. Poor farmers were often forced to mortgage their holdings, to sell them, and even to suffer their own or their children’s enslavement. By the time of the first prophets, real as well as personal property changed hands frequently and capital was concentrated in the hands of the few (Isaiah 5:8; Micah 2:2).3
A better division of wealth was restored after the destruction of the kingdoms of Israel and Judah and the settlement of the exiles in Babylonia. The family structure probably became more rigid and was the basis of the new settlement in Judaea. Unfortunately, the scarcity of food again endangered the small farmers, until the Mosaic law was reintroduced by Ezra in order to safeguard the economic and social peace.4
We have mentioned on several occasions the restrictions imposed upon the owner of property in order to protect the family rights or to preserve the divine ownership of land. The rule of redemption, for instance, allowed the seller of realty to buy back the land at its original price and created a corresponding right of preemption in favor of his next of kin (Leviticus 25:25–28; Ruth 4:1–17; Jeremiah 32:7).5 Where daughters had inherited their father’s estate, they were barred from marriage outside the tribe. The restriction upon their choice was the result of the family’s rights in the deceased man’s property and of the corresponding restrictions upon the alienation of such property (Numbers 36).
The peasant was not allowed to use the fruits of his fields to the full extent, but had to leave part of them to the poor (Leviticus 19:9–10; 23:22; Deuteronomy 24:19–21). He had also to grant a certain portion to the wayfarer (Deuteronomy 23:24–25). These rights were based on the divine ownership of all property.
Other servitudes could be created by the owner himself. According to Leviticus 27, for example, vows could be made not only concerning goods, but also as to their monetary value. The obligation to give the sanctuary the money value of the chattel, instead of the object itself, seems to have been conceived as a kind of charge in rem.
The idea of the divine ownership of land together with the remnants of the tribal structure formed the basis of the regulations concerning sabbatical years. A Hebrew slave could not be kept in bondage for longer than six years, unless he had expressly agreed to remain a slave (Exodus 21:2–6). The period of emancipation was exactly six years from the beginning of servitude, no general year of liberation being known.6
Full ownership of land, on the other hand, was limited by a fixed and general sabbatical year, in which the right to enjoy the fruits of the land belonged to the poor and even to the beasts of the field (Exodus 23:10–11). The law dealt mainly with inherited rather than acquired property and created a simultaneous period of rest throughout the country, similar to the seventh day (Leviticus 25:1–7).
Deuteronomy 15:1–6 introduced the rule canceling debts during the sabbatical year. Unlike the rule concerning the liberation of slaves, the period was not made running from the time of the individual loan, so as to form a kind of limitation of seven years. The seventh year was one for all debtors, even for those whose liability had been created a short while before.7
Besides the sabbatical year, there also existed a Jubilee year every fifty years. The Jubilee was a further illustration of the belief in the divine ownership of all property (Leviticus 25:8–34). The owner was not to cultivate his field during this year but to leave its produce for the poor. Moreover, all land acquired otherwise than by inheritance reverted back to the original owner, the only exception were lands dedicated to the sanctuary and sold by the priest to a third party (Leviticus 27:16–21). Likewise, Hebrew slaves were liberated by the Jubilee, the assumption being that they had not been freed in the seventh year. There could be two reasons for this discrepancy between the rules of the Jubilee and of the seventh year: the law of Exodus 21:2–6 was perhaps unknown at the time of Leviticus 25:10, or, and this is more probable, the former rule was not obeyed.8
All these restrictions on ownership date from an early period, when tribal concepts were still operative.9 In the course of the settlement, their application was restricted. Urban houses became the full property of the purchaser after the lapse of the one-year period of redemption. Under the monarchy, the ancient rules were no longer in force, with the result that Zedekiah had to arrange a special release of Hebrew slaves (Jeremiah 34:8–16).10 Even Nehemiah 5:1–13 still shows the absence of a fixed system of emancipation of slaves and cancellation of debts. It is doubtful whether the rules were applied during the second commonwealth.11
Ancient Hebrew society did not have much use for agreements and contracts. A person willing to make a binding promise would give it a religious basis by attaching an oath to it. God himself was thus involved in the agreement, both as a witness to the undertaking and as a judge in case of its violation.12 The greater part of rights and duties was founded upon the rules of kinship, while obligations between members of different clans were mainly the result of wrongful acts.
Apart from simple barter contracts befitting the undeveloped economy of the pre-monarchical period, there did not exist many types of legal transactions. The family usually produced all the goods needed and sales of land were confined to cases of extreme poverty.
In the course of the social stratification that took place under the monarchy, opportunity arose for the development of commerce. However, even this was not an appropriate background for the creation of legal rules. Merchandise sold at the gates of the city consisted mainly of food (e.g., 2 Kings 7:1) and perhaps clothes, while the import of goods was the monopoly of the Canaanite traders (Proverbs 31:24; Isaiah 23:8). Some of the more lucrative items were subjects of a royal monopoly (1 Kings 9:26; 22:49), agencies being given to royal merchants in the surrounding states (1 Kings 20:34).
As shown by the archives of the Murashu family, the Babylonian exile brought the Jews into contact with the well-developed economy of a world power. Jewish merchants were engaged in various transactions regarding finance and realty.13 However, Judaea itself did not develop beyond the limits of an agrarian economy. Besides the various artisans, mention is made of Jewish merchants (Nehemiah 3:32), and of foreign tradesmen selling food (Nehemiah 10:32; 13:16, 20).
While Hebrew law did not develop many provisions with regard to contracts, the possibility of creating legal relations by way of covenant existed from the oldest times. In intertribal relations, as well as in alliances between kings, the covenant form was used to establish a quasi kinship between equals or to secure the obedience of a vassal toward his overlord.
The form used in concluding such pacts was indeed common to various peoples in the ancient Orient, and the best records are found in Hittite sources of the fifteenth–thirteenth centuries.14 According to the analysis made by V. Korošec,15 the treaty texts may be divided into six parts: the preamble mentioning the name of the king making the covenant, the historical prologue describing the past benefits conferred by the king on the vassals, the obligations imposed upon the vassal, provisions demanding the deposit of the text in the temple and its periodic reading in public, the list of divine witnesses (sometimes: heaven and earth) and, finally, the curses and blessings forming the sanction in case of breach.
Similar forms seem to have been in use among the Hebrews.16 Moreover, in the patriarchal age the parties used to kill an animal as a sign of the punishment to befall the person who broke the covenant. This was also the custom among the tribes of Mari and among the Greeks and Romans.17 The pact was concluded in the presence of witnesses and sometimes a stone pile or pillar was erected as a memorial. With the introduction of writing, an inscription was added to the stone; finally, the treaty was recorded in a written deed.
While originally the covenant united the parties in all respects, in later sources it is sometimes shown as having a partial effect only. Malachi 2:14 calls matrimony a covenant between the spouses, and Jeremiah 34:15 even uses the term for an exceptional occurrence “proclaiming liberty each to his neighbour and you made a covenant before me.” The covenant, thus, became a form similar to the oath, both being sacred ceremonies adapted to legal purposes.18 It was often expressed by a handshake representing, perhaps, the union between the contracting parties (Isaiah 45:1; 2 Chronicles 30:8; Ezra 10:19; Lamentations 5:6; Ezekiel 17:18).19 The covenant form, as well as the oath, was especially useful where the contract was executory on both sides, so that there existed no tangible object that could be transferred.
Moving along the caravan routes of the Fertile Crescent, the patriarchs had much opportunity to engage in commerce (Genesis 34:10; 42:34).20 The ancient form of trade was that of barter, whereby commodities were exchanged without any need for formality. The most common contract was perhaps the exchange of cattle (Leviticus 27:10), where both parties performed simultaneously. Contracts of labor, though of an executory character, where still understood as a kind of barter, the salary being given in exchange for the work done (Numbers 18:21, 31). In Ruth 4:7 transactions were no longer limited to pure exchanges, but “redeeming and exchanging” were symbolized by rendering a fictitious consideration. If the text described the delivery of the seller’s sandal to the purchaser, part performance on his part was indicated, while the same act, if done by the purchaser, symbolized the payment of the price (Amos 2:6; 8:6).
Where the sale concerned an immaterial object, such as the birthright of Esau, confirmation was made by oath to conclude the contract (Genesis 25:33).21
The value of commodities was originally expressed in units of cattle and sheep, which formed the major part of a person’s wealth. The term miqneh, therefore, meant both cattle and possession and rosh had the sense of capital as well as of head (of an animal). This was perhaps also the original meaning of qesiṭah (Genesis 33:19; Targum Onqelos at Genesis 33:19) and of rabbinical qeren denoting horn and capital. A similar duplicity of meaning existed in the Akkadian qaqqādu (head and capital sum) and the Sumerian MSh (goats and interest), as well as in the Roman pecus and pecunia.22
At the same time rare metal was also used as a means of valuing a commodity to be transferred. The price was determined by reference to a given weight of silver, so that the verb shaqal had the meaning of paying as well as of weighing, and the sheqel became both a unit of money and a measure of weight. While, originally, the silver used for payment was of an unknown shape, there appeared in Judaea under the Persian occupation various coins named darics or drachmas. The former was coined under the reign of Darius; the latter was a Greek coin also current in Palestine.
A purchase of land by Abraham is described in Genesis 23.23 This passage relating the transfer of the cave of Machpelah mentions all the legal elements in use during the patriarchal age among Israel’s neighbors. After the preliminary negotiations had been completed in public near the city gate, the price of the property was agreed upon between the parties. By the payment in full of “four hundred sheqel of silver according to the weights current among the merchants,” the property—described by the name of its former owner, its situation, and its fixtures—was said to have passed “as a possession” to the purchaser in the presence of the citizens as witnesses. No mention is made of a written contract as was usual at the time in Babylonia.24 Indeed, writing, at least for secular purposes, may have been unknown in the tribal age; it is not mentioned among the first inventions of mankind (Genesis 4:21–22). The art was ascribed to God, who had taught it to his people in connection with the transmission of the law (Exodus 32:16). This was also the tradition among other peoples.25
In the same fashion, a dispute over water rights was settled orally by a formal payment of the price in the presence of witnesses (Genesis 21:30). The act is called ‘edah, i.e., it is in itself a testimony of the payer’s right, without any need for further evidence.
A case of redemption and subsequent release of rights is described in a similar form in Ruth 4:1–10. The transaction was concluded in “the days when the judges ruled”; i.e., in the premonarchical period. Having cited the kinsman before ten of the elders of the city, Boaz stated the facts on which the right of preemption over the piece of land concerned was based. The man expressed his willingness to take advantage of this right, whereupon Boaz informed him of the obligation connected therewith, viz., the acquisition of the widow together with the property. The release resulting from this legal information was another oral contract made between the two parties in the presence of witnesses. Here, too, a formal act took place at the invitation of the transferor (the drawing of the shoe), followed by an assertion of ownership on the part of the transferee.26 The people present were called by the transferee to witness the act and the declaration, and they accepted this task. However, the whole act was again called a “testimony,” meaning the formal gesture preceding the documents of transfer.
Besides the “Deed of the Covenant” (Exodus 24:7), which was necessary to define intertribal or international relations, the law also recognized a “Deed of Divorce” (Deuteronomy 24:1). In this case, it seems, a formal act including a declaration in the presence of witnesses was not an adequate safeguard for the woman, since she usually left the place in order to settle somewhere else. The husband, therefore, was obliged to record the release of his power over her in a written instrument.27
With the greater mobility of property during the monarchical period and the reception of commercial usages from abroad, the written testimony became an important part of transfer formalities. The te’udah in Isaiah 8:16 had already the meaning of a document and its preparation formed the major part of the land transfer described in Jeremiah 32:6–14.
The text still distinguished between the act of acquisition, the payment of the price, the writing of the deed, the sealing, the appointment of witnesses, the weighing of the silver, and the preservation of the deed. Moreover, the text of the deed seems to have consisted of an assertion of ownership on the part of the purchaser, rather than a transfer of rights by the seller, for the deed was prepared by the purchaser.28 This form was indeed similar to the Assyro-Babylonian style of documents, speaking from the point of view of the purchaser, debtor, lessee, bridegroom—respectively.29 The papyri from Elephantine, on the other hand, were made by the transferor and formed his written declaration in favor of the transferee or consisted of a dialogue.30
Hebrew society, being pastoral and agrarian, but never really commercial, did not develop fixed price cataloges for various commodities.31 The seller was, however, warned not to overcharge the purchaser (Leviticus 25:14).32
Hebrew law recognized the lending of money or food as a kind of charity toward kinsmen rather than as a form of investment bearing interest. The debtor was poor, the next of kin was asked to help him gratuitously and to release his claim in the seventh year. No interest might be taken, unless the borrower was a foreigner (Exodus 22:24; Leviticus 25:35–38; Deuteronomy 15:1–11; 23:20–21).33
This law, however, was often violated, especially after the stratification and economic transformation of Hebrew society under the monarchy. As shown by the documents of the Murashu family,34 the Babylonian exilics had become acquainted with banking operations. The Egyptian Jews described in the Aramaic papyri also engaged in small loans for interest, and the same practice is mentioned in the sources from Judaea (Nehemiah 5:1–13; Proverbs 28:8; Ezekiel 18:8–9; 22:12).35
Where the debt was not paid on time, liability attached to the person of the debtor. Exodus 22:25 asks the creditor not to put pressure on the debtor (1 Samuel 22:2) and Deuteronomy 15:2 provides for his release in the seventh year.36 There is no express rule providing the debtor’s surrender into slavery. Exodus 22:23 merely rules on the sale of a thief who cannot restore the stolen goods. However, while the latter was liable to be sold to a third person, the ordinary debtor, it seems, was seized by the creditor and made to pay his debt by laboring for him (Proverbs 22:7).
The law did, indeed, deal with the case where a person had sold himself into slavery and it provided for his liberation in the seventh year (Exodus 21:2–4; Leviticus 25:39; Deuteronomy 15:12–18). In theory, there is a difference between the sale of the debtor by himself in satisfaction of the debt and his physical attachment by the creditor. In practice, however, the two cases are not dissimilar, the debtor’s consent in the former instance being rather fictitious (Amos 2:6; 8:6).37
Payment could also be secured by the delivery of a pledge, to be kept by the creditor until the satisfaction of the debt.38 Genesis 38:18 speaks of the signet, the cord, and the staff of a debtor, while Exodus 21:7 and Isaiah 50:1 show him surrendering his child.39 The various forms of real security are also described in the complaint of the poor under Nehemiah:
Our sons and our daughters we are many (mortgaging?) to get grain and keep alive. . . . We are mortgaging our fields, our vineyards and our houses to get grain because of the famine. . . . We have borrowed money for the king’s tax upon our fields and our vineyards. Now our flesh is as the flesh of our brethren, our children are as their children; yet we are forcing our sons and our daughters to be slaves and some of our daughters have already been enslaved; but it is not in our power to help it, for other men have our fields and our vineyards. (Nehemiah 5:2–5)
In most cases the pledge was probably agreed on when the debt became due rather than at the date of the contract, though the ordinary loan was given for an indefinite period. The Aramaic papyri included the creditor’s right of distress in the original acknowledgment, but they also deferred the execution of this right until the loan became mature.40
Dependents could be surrendered by the debtor in the same way as goods. The seizure of children is mentioned in 2 Kings 4:1, while Exodus 21:7 and Isaiah 50:1 speak of their sale, the latter expressly mentioning the satisfaction of debt. No corresponding right existed with regard to the debtor’s wife, who seems to have been immune from delivery as a pledge and from seizure.41
Even without the debtor’s consent, the creditor could levy distress upon his estate. Exodus 22:26–27 and Deuteronomy 24:6, 10–13, 17 show the creditor seizing property in order to compel the debtor to pay; the law merely demanded the adoption of a humane attitude when this right was executed. 2 Kings 4:1 assumes the seizure of the debtor’s sons without mentioning the recourse to a court. They were probably put to work until the debt was paid off. According to the law against interest, the work had to be credited to capital rather than to interest.42
Another form of personal security for one’s own undertaking was the wager. 2 Kings 18:23 and Isaiah 36:8 use the reflexive form of the verb pledge to describe the creation of personal liability for a certain promise. Both parties pledge themselves for the result of their bet, which is treated as an obligation of the loser in favor of the winner.
Suretyship for the safe custody of a given person must have been recognized by Hebrew law at an early date. The story of Judah and Benjamin describes the guarantee of a trustee for the safe return of a person given into his care (Genesis 43:9). 1 Kings 20:39 refers to a similar situation. In both cases the surety received a person and made himself liable for this person’s reappearance. On failing to fulfil his promise, the surety became personally responsible, but under the second arrangement, he could redeem himself by payment of a liquidated penalty. Biblical sources do not show this form of suretyship as being used to guarantee the appearance of a debtor.
The children mentioned in the complaint made to Nehemiah were sureties personally delivered into the creditor’s possession. Similarly, a person could be held hostage by an overlord in order to guarantee the faithfulness of his vassal (2 Kings 14:14); he was then liable to be killed or enslaved for a breach of promise.43
The main form of surety developed during the monarchy. At that time Hebrew society became divided into rich landowners and a considerable proletariat and there was more use than before of financial transactions. Suretyship, then, must have become an important means of guaranteeing the repayment of loans. While no examples can be found of the promise of a debtor’s appearance, there exist various passages showing guarantees of payment (Proverbs 20:16; 22:26–27; Ben Sira 8:13; 29:19).44
Reference is made in these passages to the obligation of the surety. This obligation could concern the redemption price for the surety’s person, but more probably it was the result of the assumption of the principal debt by the surety.
A solemn declaration of the surety is mentioned in Genesis 43:9 and Proverbs 6:1–5. The formula was accompanied by a gesture, similar to the Roman and medieval fidei datio or dextera. By inserting his hand into the creditor’s palm, the surety symbolized his entry into the latter’s power and, probably, his intervention in favor of the debtor. A corresponding gesture took place perhaps between the surety and the debtor. Besides the meaning of submission, the handclasp also symbolized the bond created between the two persons.45
The sanctions against the defaulting surety mentioned in Proverbs 20:16 and 22:26 concerned only his property, not his person. The debtor, on the other hand, was described in Proverbs 22:7 as the creditor’s slave and was shown even as late as the time of Mishnah Baba Batra 10:8 to be seized in distress.
Usually, the surety was freed from his liability by payment of the debt. According to Proverbs 6:3 he could also be released by the creditor ex gratia.
In Biblical, as in other laws, co-ownership within the family preceded commercial partnership. The “brothers sitting together” (Deuteronomy 25:5) carried on their common affairs and were responsible for each other.46 Such a relationship was based on the ties of blood; it could, however, be extended to more distant kinsman or even to confederates in a tribal covenant.
This relationship differs from a modern partnership in that it was not limited to a particular business. It formed rather an overall grouping of the people concerned for all needs and purposes. On the other hand, people sometimes united for a definite commercial purpose, also using the form of the covenant to make the agreement binding on both parties.
Leviticus 6:2 mentions, among the various forms of converting another person’s goods for one’s own use, a case in which “a man sins and commits a breach of faith against God by deceiving his neighbor in a matter of . . . putting of the hand.” According to the Septuagint this should be translated by koinonia, while Philo, De Specialibus Legibus 4:32, thinks of the handshakes as the means whereby a partnership was created. Both refer to a breach of trust between partners treated as a religious and civil offense. The gesture of the hand, indeed, symbolized the consent of mind as well as the joining of action.
Similar to the Phoenician trading syndicate, the ḥubur was the joint enterprise of the kings of Judah and Israel: “After this, Jehoshaphat king of Judah joined (‘ethabar) Ahaziah king of Israel, who did wickedly. He joined him (wayeḥaberehu ‘imo) in building ships to go to Tarshish, and they built the ships in Eṣion geber” (2 Chronicles 20:35–36). A partnership between fishermen is perhaps mentioned in Job 40:30 (41:6 KJV), while Septuagint Proverbs 21:9; 25:24 give the meaning of a joint enterprise to the Hebrew beyt ḥaver (also Proverbs 1:14).47
A special type of partnership was marriage, being a covenant between the spouses for life. Malachi 2:14 explains the solemnity of the act as follows: “She is your companion (ḥavertekha) and your wife by covenant.” A marriage alliance between two kings is described in Daniel 11:6 by the term hitḥaber. The handshake included in the marriage ceremony described in Tobit 7:13 may also have been a symbolic expression of companionship.48
The various guilds, such as the sons of the prophets (e.g., 1 Kings 20:35), the family of the scribes, the family of the linen workers, the goldsmiths, and the perfumers (1 Chronicles 2:55; 4:21; Nehemiah 3:8) were other forms of corporations created by covenant. Every such union must either have been in possession of a special statute to regulate its common business or else its affairs were governed by accepted custom. It was presided over by a “father” (1 Chronicles 2:55) enjoying a kind of potestas over the members and apprentices.49
Wherever a group was called to act there arose the need to create some form of agency. The earliest use of this institution, it seems, was for cultic purposes. The “head of a father’s house” or of a clan would sacrifice on behalf of his dependents as well as on his own behalf; later the Aaronic priesthood adopted a similar function in the national framework.
Agency, therefore, developed within the sanctuary as a means of mediation between God and the nation at large. As the priest’s ordination was called milu’im (literally: filling) and the person performing the installation ceremony described as “filling their hands” (e.g., Exodus 28:41; Judges 17:5), the existence of a form similar to the Roman mandatum50 may be presumed. The person conducting the ordination used, perhaps, to put some holy tool into the priest’s hand; another possibility is the mere placing of the former’s hand into that of the latter. A person could volunteer for divine service, which was then known as “filling of one’s hands for God” (Exodus 32:29; 2 Chronicles 29:31).
Because of the primitive economy that existed in Israel until the end of the monarchy, there was no incentive for the application of these forms to private laws. Where a slave of a filius-familias acted as agent, there was no need for a legal ceremony between him and his principal; a mere promise was sufficient. An example of this form of agency is the commission of Abraham’s servant to acquire a wife for Isaac (Genesis 24).
In the pastoral and agrarian society of ancient Israel there was little demand or market for hired labor. The hireling in most cases was a poor foreigner lacking a plot of land of his own (Exodus 12:45; Leviticus 22:10; Deuteronomy 24:14; 1 Samuel 2:5). The contract could be made for a day (Deuteronomy 24:14), a year (Leviticus 25:50, 53; Isaiah 16:14; 21:16), or even longer (Genesis 29:18; Deuteronomy 15:18).
The need for hired workers seems to have arisen mainly at harvest time (Ruth 2:3). The work of shepherding was mostly done by members of the household, but sometimes also by independent contractors (Genesis 31:38–39; Exodus 22:9; Amos 3:12).51
Owing to these workers’ lowly status, various laws were necessary for their protection. The employer was forbidden to withhold their wages (Leviticus 19:13; Deuteronomy 24:14) or to violate any other right belonging to them (Jeremiah 22:13; Malachi 3:5). No standard wages, however, were mentioned in Hebrew law, as contracts of hire were exceptional and fixed rates of pay had not yet been established.52
The law did not include provisions defining the duty of the hired worker, apart from the duty of custody implied in contracts of deposit. Exodus 22:7–14 distinguishes between three cases: the deposit of money or goods, the pasturing of cattle, and the borrowing of a beast. The bailee of the first category was bound to restore the chattel but was not obliged to preserve it in good condition. If he claimed that the chattel had been stolen from him and that he could not therefore restore it, the matter was referred to an ordeal; if the bailee was found to have been dishonest, a double penalty was inflicted upon him.53
The shepherd was treated more severely and could not claim theft as an exemption from liability. He was, in fact, bound to attend constantly to the herd and was freed from the duty of restitution only if he could prove that the loss was caused by beasts of prey (1 Samuel 17:34; Amos 3:12).54 Sometimes even absolute liability attached to a contract of pasturage, especially where the wages were paid in kind and the agreement took the form of a lease of cattle (Genesis 31:38–40).55
Full liability was also imposed on the borrower, who was responsible for the borrowed beast’s injury or death. Only where the owner of the animal was present at the time of injury, did the loss fall upon him. In such a case the assumption was that the damage was unavoidable.
Exodus 22:14 continues: “If it be hire, it comes into the wages.” The meaning of this sentence is not free from doubt. According to the usual interpretation, damage caused to a hired object was not to be borne by the hirer; this risk was included in the payment of the price. The provision does not, however, exclude the borrower from all forms of responsibility, for then the price would have been prohibitive. Only the obligation to make good injuries and death caused during the use of the hired animal was excluded.56
Contracts of deposit and shepherding, being of rather an informal character, were not, originally, embodied in a written document. Under the influence of Babylonian law, however, postexilic Jewish sources mention deeds of deposit and perhaps also of pasturage (Tobit 5:3; 1 Enoch 89:62–63).
A greater measure of responsibility than that of the hired worker was placed upon the independent contractor. Craftsmen were needed for skilled work, such as the building of the temple or the carrying out of its repairs. No control was exercised over the execution of their work. They were trusted with regard to the quantity of building material needed, they could keep surpluses for themselves and they received exceptional wages. These rights were perhaps due to the efforts of the guilds and to the social importance.57
Leases of land and of buildings are not dealt with in biblical legislation. Both during the tribal age and under the early kings, the contrast between rich and poor had not yet developed to the degree known, for instance, in Babylonia.58 Genesis 47:20–26 ascribes to Egypt the system of royal grants of land on condition that one fifth of the land’s income was paid to the Crown. Similarly, the town of êiqlag was given to David by the Philistines as feudal estate. No such arrangement is mentioned, however, in Israel proper.
The nearest approach to the feudal system was the concept of the divine ownership of land, as represented, for instance, in the rule of Jubilee. The fields, vineyards, and olive orchards given by the king to his servants (1 Samuel 8:14) may also have been feudal grants.
As a result of the economic changes that took place between the ninth and eighth centuries there arose a landed aristocracy as opposed to the mass of landless town dwellers. It was at this time that the first leases of realty may have been contracted in Israel according to Babylonian examples.59
1. Compare Friedrich Horst, Gottes Recht: Gesammelte Studien zum Recht im Alten Testament (Munich: Kaiser, 1961), 203ff.; similar ideas existed, as mentioned above, in Babylonia, Greece, and Rome.
2. Compare Marmorstein, Palestine Exploration Quarterly 85 (1953): 111ff.: Henry, Palestine Exploration Quarterly 86 (1954): 5ff.; Roland de Vaux, Ancient Israel: Its Life and Institutions, trans. John McHugh (London: Darton, 1961), 251–56; Christopher R. North, Sociology of the Biblical Jubilee (Rome: Pontifical Biblical Institute, 1954).
3. Compare Ephraim Neufeld, “Emergence of a Royal-Urban Society,” Hebrew Union College Annual 31 (1960), 31–53.
4. On the whole chapter, see also de Vaux, Ancient Israel, 254; Chaim Z. Hirschberg, “Property” (in Hebrew), in Encyclopaedia Miqra’it (Jerusalem: Bialik, 1950), 1:209; Jacob J. Rabinowitz, “Redemption for the Land” (in Hebrew), in Encyclopaedia Miqra’it, 2:394; Samuel E. Loewenstamm, “Jubilee” (in Hebrew), in Encyclopaedia Miqra’it, 3:578; Albrecht Alt, Kleine Schriften zur Geschichte des Volkes Israel (Munich: Beck, 1953–59), 3:348–72.
5. Johannes Pedersen, Israel: Its Life and Culture (London: Oxford University Press, 1926–40), 1–2:84ff.; David Daube, Studies in Biblical Law (Cambridge: Cambridge University Press, 1947), 39ff.; Rabinowitz, “Redemption for the Land,” 2:394; de Vaux, Ancient Israel, 254; Ze’ev W. Falk, “Mutual Obligation in the Ketubah,” Journal of Jewish Studies 8 (1957): 216; Ephraim Neufeld, “Ius Redemptionis in Ancient Hebrew Law,” Revue Internationale des Droits de l’Antiquité 8 (1961): 32. For the right of preemption, compare Codex Eshnunna 39.
6. Compare Martin David, “The Manumission of Slaves under Zedekiah: A Contribution to the Laws about the Hebrew Slaves,” Oudtestamentische Studien 5 (1948): 63–79; Robert North, Sociology of the Biblical Jubilee (Rome: Pontifical Biblical Institute, 1954).
7. Extraordinary cancellation of debts was introduced by various Babylonian rulers; compare the law described by Fritz R. Kraus, Ein Edikt des Königs Ammi Saduqa (Leiden: Brill, 1958); North, Sociology of the Biblical Jubilee, and de Vaux, Ancient Israel, 254.
8. Compare the discussion in Sifra ad Leviticus 25:10 and North, Sociology of the Biblical Jubilee.
9. For Nuzian parallels, see Levi, Eretz Israel 5 (1959): 21–22; compare Loewenstamm, “Jubilee,” 3:578; de Vaux, Ancient Israel, 267; Horst, Gottes Recht, 213ff.
10. Compare Neufeld, “Emergence of a Royal-Urban Society,” 31ff.
11. Sifra ad Leviticus 25:10; but see Efraim E. Urbach, Zion 25 (1960): 143ff.
12. Compare Horst, Gottes Recht, 292ff.
13. Guillaume Cardascia, Les Archives des Murashû (Paris: Imprimerie Nationale, 1951). Various transactions, though not on a commercial scale, are found also among the papyri of Elephantine; compare Reuven Yaron, Introduction to the Law of Aramaic Papyri (Oxford: Clarendon, 1961).
14. Compare, for instance, the treaties between the Hittite kings and the kings of Ugarit in Jean Nougayrol, Le Palais Royal d’Ugarit IV: Textes Accadiens des Archives Sud (Paris: Klincksieck, 1956), 43, 51, 65.
15. Viktor Korošec, Hethitische Staatsverträge (Leipzig: Weicher, 1931).
16. George E. Mendenhall, “Covenant Forms in Israelite Traditions,” Biblical Archaeologist 17 (1954): 50ff.; George E. Mendenhall, “Puppy and Lettuce in Northwest-Semitic Covenant Making,” Bulletin of the American Schools of Oriental Research 133 (1954): 26–30; J. C. L. Gibson, “Light from Mari on the Patriarchs,” Journal of Semitic Studies 7 (1962): 46; Charles F. Fensham, “Clauses of Protection in Hittite Vassal-Treaties and the Old Testament,” Vetus Testamentum 13 (1963): 133–43; Julien Harvey, “Le Rib-Pattern, Requisitoire prophetique sur la rupture de l’alliance,” Biblica 43 (1962): 172–96. On anointing as a form of covenanting, see Ernst Kutsch, “Salbung als Rechtsakt,” Beiheft zur Zeitschrift für die alttestamentliche Wissenschaft 87 (1963). See also p. 136.
17. Elijah S. Hartum, “Covenant” (in Hebrew), in Encyclopaedia Miqra’it, 2:347; Abraham Malamat, “Curse” (in Hebrew), in Encyclopaedia Miqra’it, 4:575; Yehoshua M. Grintz, Zion 26 (1961): 69–84; Charles F. Fensham, “Maledictions and Benedictions in Ancient Near Eastern Vassal-Treaties and the Old Testament,” Zeitschrift für die alttestamentliche Wissenschaft 74 (1962): 1–8.
18. Compare the same process in Egyptian law: Erwin Seidl, Einführung in die ägyptische Rechtsgeschichte bis zum Ende des neuen Reiches (Glückstadt: Augustin, 1951), 49.
19. Ze’ev W. Falk, “Gestures Expressing Affirmation,” Journal of Semitic Studies 4 (1959): 268; Ze’ev W. Falk, “Zum jüdischen BŸrgschaftsrecht,” Revue Internationale des Droits de l’Antiquité 10 (1963): 49–53.
20. Cyrus H. Gordon, “Abraham and the Merchants of Ur,” Journal of Near Eastern Studies 17 (1958): 28–31; W. F. Albright, “Abram the Hebrew,” Bulletin of the American Schools of Oriental Research 163 (1962): 36–54; see, however, Speiser, Bulletin of the American Schools of Oriental Research 164 (1961): 23–28.
21. Compare David Daube, Cambridge Law Journal 8 (1942): 70f.; Ephraim Neufeld, Ancient Hebrew Marriage Laws (London: Longmans, 1944), 263–64; Daube, Studies in Biblical Law, 195–96.
22. Compare de Vaux, Ancient Israel, 313–14; Godfrey R. Driver and John C. Miles, The Babylonian Laws (Oxford: Clarendon, 1952–55), 1:174; Karl Friedrich Thormann, Der doppelte Ursprung der Mancipatio (Munich: Beck, 1943), 119, 155 (denying the use of cattle as money).
23. Compare Manfred R. Lehmann, “Abraham’s Purchase of Machpelah and Hittite Law,” Bulletin of the American Schools of Oriental Research 129 (1953): 15–18; B. Perrin, “Trois textes bibliques sur les techniques d’acquisition,” Revue Historique de Droit Français et Etranger 41 (1963): 5–19.
24. Compare Codex Hammurabi 7, and Yaron, Introduction, 79ff.; Evans, “‘Coming’ and ‘Going,'” Bulletin of the American Schools of Oriental Research 150 (1958): 32.
25. De Vaux, Ancient Israel, 82; Falk, “Mutual Obligation in the Ketubah,” 215.
26. For a comparison to the Roman mancipatio, see Jacob J. Rabinowitz, Jewish Law: Its Influence on the Development of Legal Institutions (New York: Bloch, 1956), 7ff.
27. Originally, divorce may also have been effected orally, see Hosea 2:4; compare de Vaux, Ancient Israel, 60; see p. 136, and Mekhilta ad Exodus 18:2.
28. Unless Jeremiah wrote the deed on behalf of the seller.
29. Mariano San Nicolo, Beiträge zur Rechtsgeschichte im Bereiche der keilschriftlichen Rechtsquellen (Oslo: Aschehoug, 1931), 156. Compare p. 140.
30. Yaron, Introduction, 10, 79.
31. Compare Codex Eshnunna 1–4; Ephraim Neufeld, The Hittite Laws (London: Luzac, 1951), 176B–186.
32. Abraham Friemann, “Deceit” (in Hebrew), in Encyclopaedia Miqra’it, 1:149; on transfers of land, see also Melamed, Tarbiz 14 (1942): 11–18; Jacob J. Rabinowitz, “Lords” (in Hebrew), in Encyclopaedia Miqra’it, 2:295; Assaf Jubilee Vol. (Jerusalem: 1953), 433–34; de Vaux, Ancient Israel, 256–59.
33. For the release of interest in cases of disaster, compare Codex Hammurabi 48.
34. See pp. 3, 88, above.
35. Compare Arthur E. Cowley, ed. and trans., Aramaic Papyri of the Fifth Century B.C. (Oxford: Clarendon, 1923), 29–35; Yaron, Introduction, 93ff.; Siegfried Stein, “Jewish Law on Interest,” Historia Judaica 17 (1955): 3ff.; Jacob J. Rabinowitz, “Away Beyond” (in Hebrew), in Encyclopaedia Miqra’it, 2:813; de Vaux, Ancient Israel, 260; Ephraim Neufeld, “The Rate of Interest and the Text of Nehemiah 5:11,” Jewish Quarterly Review 44 (1953): 194–204; Ephraim Neufeld, “The Prohibitions against Loans at Interest in Ancient Hebrew Laws,” Hebrew Union College Annual 26 (1955): 355–412.
36. See pp. 86–97, above.
37. Compare Codex Hammurabi 117–19; Driver and Miles, Babylonian Laws, 1:216–17; Guttman, Dünaburg Volume (Jerusalem, 1950), 68ff. (denying the existence of bondage for debts); Rabinowitz, Jewish Law, 15–16; Neufeld, “Ius Redemptionis,” 29ff.; Ze’ev W. Falk, “Zum jüdischen Handelsrecht,” 11–19.
38. On the law of pledges, see Ephraim Neufeld, “Inalienability of Mobile and Immobile Pledges in the Laws of the Bible,” Revue Internationale des Droits de l’Antiquité 9 (1962): 33–34.
39. Compare Codex Hammurabi 49–52, 117–19; Middle Assyrian Laws A48.
40. Cowley, Aramaic Papyri, 29–32; Emil G. Kraeling, The Brooklyn Museum Aramaic Papyri (New Haven: Yale University Press, 1953), 11; R. Halevy, Tarbiz 27 (1958): 31–38; de Vaux, Ancient Israel, 261; Yaron, Introduction, 96; Falk, “Zum jüdischen Bürgschaftsrecht,” 43–44.
41. Compare Codex Hammurabi 151–52; Driver and Miles, Babylonian Laws, 1:216. Compare the Talmudic belief in the responsibility of a man’s wife and children for his vows, Babylonian Talmud Šabbat 32b.
42. For the rules of distress levied on persons, compare Codex Eshnunna 22–24; and on distress in general, see Codex Hammurabi 113–19.
43. For Assyrian parallels, see Samuel E. Loewenstamm, “Hostage” (in Hebrew), in Encyclopaedia Miqra’it, 2:179.
44. De Vaux, Ancient Israel, 264; Neufeld, “Ius Redemptionis,” 39ff.; Falk, “Zum jüdischen Bürgschaftsrecht,” 43ff.
45. Falk, “Zum jüdischen Bürgschaftsrecht,” and Falk, “Gestures Expressing Affirmation,” 268.
46. Abraham Freimann, “Brothers” (in Hebrew), in Encyclopaedia Miqra’it, 1:189; Driver and Miles, Babylonian Laws, 1:186ff.; Codex Eshnunna 38; Middle Assyrian Laws A25.
47. Compare Samuel E. Loewenstamm, “House of Association” (in Hebrew), in Encyclopaedia Miqra’it, 2:72; Albright, Studies Presented to D. M. Robinson 1:229ff.; Malamat, “Mari and the Bible,” Journal of American Oriental Society 82 (1962): 145.
48. The term partnership appears also in the Judaean marriage deed cited in Palestinian Ketubbot 7:7, 31c; compare Ze’ev W. Falk, Marriage and Divorce (in Hebrew) (Jerusalem: Mifʾal ha-shikhpul, 1961), 87, 89; see also p. 144.
49. Compare Klein, Zion 2 (1927): 9; de Vaux, Ancient Israel, 119–21.
50. Derived from manus and dare, see Max Kaser, Das römische Privatrecht (Munich: Beck, 1955–59), 1:481. For the Hebrew “filling of hands,” see Manachem Haran, “Hand-Filling” (in Hebrew), in Encyclopaedia Miqra’it, 4:1049; de Vaux, Ancient Israel, 2:197. Compare also the parallel expression in the Mari texts.
51. Another form of hired labor was prostitution, mentioned in various biblical sources; see Samuel E. Loewenstamm, “Harlots” (in Hebrew), in Encyclopaedia Miqra’it, 1:793; Samuel E. Loewenstamm, “Prostitution” (in Hebrew), in Encyclopaedia Miqra’it, 2:935; compare Genesis 30:16. On the Babylonian law of labor, see J. G. Lautner, Altbabylonishe Personenmiete und Erntearbeiterverträge, vol. 1 of Studia et Documenta ad Iura Orientis Antiqui Pertinentia (Leiden: Brill, 1936).
52. Compare Codex Eshnunna 7–11; Codex Hammurabi 257–58, 273–74; Neufeld, Hittite Laws, 150ff.; de Vaux, Ancient Israel, 118. See, however, “Wages for man and wages for beast” (Zechariah 13:10).
53. Compare Codex Eshnunna 36–37; Codex Hammurabi 124–26.
54. Compare Codex Hammurabi 253–67.
55. Compare Sibylle von Bolla-Kotek, Untersuchungen zur Tiermiete und Viehpacht im Altertum (Munich: Beck, 1940): 168; Ze’ev W. Falk “The Expression ‘Iron Sheep’ in the Talmud” (in Hebrew), Tarbiz 26 (1957): 287–91.
56. Compare Codex Lipit Ishtar 34–37; Codex Hammurabi 244–49; Neufeld, Hittite Laws, 75–76. On the Hebrew law of deposit and shepherding, see Karel, Tarbiz 7 (1936): 258; Cohen, Revue Internationale des Droits de l’Antiquité 2 (1949): 133ff.; David Daube, “Rechtsgedanken in den Erzählung des Pentateuchs,” Beihefte zur Zeitschrift für die alttestamentliche Wissenschaft 77 (1958): 32.
57. Samuel Abramski, “Insult” (in Hebrew), in Encyclopaedia Miqra’it, 3:304; Samuel Yeivin, “Work” (in Hebrew), in Encyclopaedia Miqra’it, 4:990; Ze’ev W. Falk, “The Inheritance of the Daughter and the Widow in the Miqra and in the Talmud” (in Hebrew), Tarbiz 28 (1959): 251; de Vaux, Ancient Israel, 119–20.
58. Compare Codex Lipit Ishtar 8; Codex Hammurabi 26ff., 42–47, 60–65; Samuel E. Loewenstamm, “Renter of Land” (in Hebrew), in Encyclopaedia Miqra’it, 3:124.
59. Compare San Nicolo, Beiträge, 230ff.; de Vaux, Ancient Israel, 251ff.; Loewenstamm, “Renter of Land”; see also Amos 5:11, which seems to refer to rents paid in kind.