Jewish and Roman Law - Comparative Study 9781463206604

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Jewish and Roman Law

A Comparative Study

By

Boaz Cohen

Introduction by

Natalie B. Dohrmann

gp 2018

Jewish and Roman Law

Judaism in Context

21 Series Editors 5LYND8OPHU 3KLOOLS$FNHUPDQ/LHEHUPDQ¬ (OLVKHYD&DUOHEDFK -RQDWKDQ-DFREV 1DRPL.ROWXQ)URPP :'DYLG1HOVRQ /LHYH7HXJHOV

-XGDLVPLQ&RQWH[W}provides a platform for scholarly research focusing on therelations between Jews, Judaism, and Jewish culture and other peoples, religions, andcultures among whom Jews have lived and flourished, from ancient times through the 21st}century. The series includes monographs as well as edited collections.}

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2018

ISBN 978-1-4632-0660-4

ISSN 1935-6978

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Printed in the United States of America

TABLE OF CONTENTS Volume 1 Table of Contents ................................................................................................................ v Introduction to This Edition by Natalie B. Dohrmann .............................................. vii Biography: Boaz Cohen (1899–1968) .................................................................... vii Contents .................................................................................................................... viii Methodology ................................................................................................................ x Cohen and the Study of the Rabbis ...................................................................... xiii Conclusions ................................................................................................................ xv Preface ................................................................................................................................ xix Introduction ....................................................................................................................... xxi A. General Part I. The Relationship of Jewish to Roman Law II. Letter and Spirit in Jewish and Roman Law III. Letter and Spirit in the New Testament IV. Law and Ethics

1 31 58 65

B. Law of Persons V. Law of Persons VI. Civil Bondage VII. Peculium VIII. Betrothal IX. Dowry X. Divorce

122 159 179 279 348 377

Volume 2 C. Law of Things XI. Contrectatio XII. Antichresis XIII. Possession XIV. Specificatio XV. Traditio Clavium XVI. Ususfructus XVII. Causation XVIII. Acceptilatio in Jewish Law

409 433 457 472 538 557 578 610

v

vi

JEWISH AND ROMAN LAW XIX. “Juedisches Hehlerrecht” in Jewish Law

615

D. Law of Actions XX. Self-Help XXI. Arbitration XXII. The Testimonial Oath XXIII. Testimonial Compulsion

624 651 710 734

Addenda Corrigenda Postscript General Index Index of Passages Index of Latin Terms Index of Greek Terms Index of Hebrew and Aramaic Terms Index of Hebrew and Aramaic Terms in Transliteration Index of Arabic Terms Index of Oriental Terms

755 805 831 882 887 889 893

Hebrew Section: 1 (On The Minor) '/#:!# ':3! &6rvo ) .

David was

extolled by the historical- writers . for his · exemplary dispensation of j ustice, I I 2

In order to combine law with j u stice the principle of equity came

into being.n 3

Equity is based on an understanding of the inten t of

Declamation , cf. ZSS., 4 1 , p. 23 and Lanfranchi , Il Diritto nei Retori Romani, Milan, 1 938, p. 143, note 7. uo Similarly, Aristotle said that civil society was founded not merely to preserve the lives of its members, but that they might live well. · Politics, 1 1 1 .9 (1 280a) , cf. also Maimonides, Moreh, 1 .42 , and l l l.28, ill•,c? N ? NlnN?N nN? :s: , which lbn Tibbon rendered m•,on 'l'JlJ J1pn . This phrase in turn corresponds to- the term "civil society, " for the latter, cf. Hegel, Philosophy of R-ight, Oxford , 1 949, p. X, and p. 122 ff. m As a pun ishment for their sins, God left them to follow their own ideas, which they eventually ascribed to Him, cf. Ps. 8 1 : 1 3 , Spinoza's observation applies to this passage of Ezekiel, " I f they (i. e. , the J ews) desire anything, they say that God inclines their hearts thereto, " Tractatus Theologico-Politicus, London , 1 868 , p. 33. For Spi noza's; own interpretation of this baffling statement of Ezekiel , cf. loc. cit. , p. 3 10, and Montesquieu , Esprit des Lois, XIX.2 1 . The rabbis too were puzzled by this verse, cf. e . g. , Ex. Rab. 30. 18. ma Similarly Cicero extols the laws of the XI I Tables precisely for sum ma aequitas, cf. De Re Publica, I l .36, 6 1 . Tacitus designates the laws of the X I I Tables as finis aequi juris, cf. A nnals, I I I . 2 7 . m I I Sam . 8 : 1 5 , cf. Sanh . 6 b . King Solomon when he was i n Gibeon , prayed to God that he be given wisdom to dispense law and j usti�e, �!lWO l}OW? )'::11"1, I · Kings 3 :9 ff., and his req uest was granted . For th is incident, cf. Hildegard Lew y, A rchiv Orientalni, vol . XV I I I , no. 3 , 1 9 50 (Hrozny A nniversary Volume, part I V ) , p. 33 1-332 . HJ The Greek E1T'LELKELa, the Roman aequitas, and the English equity are not synonymous, but have a basic notion in common , cf. Austin, Lectures on Juris­ prudence, 1 8 7 3 , I I , pp. 634 ff., Seagle, The Quest for Law, 1 94 1 , pp. 1 80 ff. , 432-433 , Diamond, Prim-it·ive Law, pp. 348-349, and F. W. Maitland , Equity, A lso the Forms of Actions at Common Law, Cambridge, 1920, and Hazeltine, "The Early History of English Equity, " in Essays on Legal History, edited by Vinogradoff, 1 9 1 3 . For E7rLELKE�, cf. Heinz-Horst Schrey, " Die .W iedergeburt des Naturrechts, " Theo­ logische Rundschau, 1 9 ( 1 95 1 ) , 2 8-29, and for aequitas, cf. E. M . Meyers, "Le Con flit entre l 'equite et la loi chez Jes premiers glossateurs , " Ttjdschrijt voor Rechtsgeschiede­ nis, _ 1 7 ( 1 94 1 ) , 1 1 7-1 35, and B eseler, Juristische Miniaturen, Leipzig, 1 929, p. 6 1 .

LETTER AND SPIRIT IN JEWISH AND ROMAN LAW

49

the law.n 4 In Scripture we recognize three terms which correspond to equity, each stressing a particular aspect. First ,,w,,:, n s and the plural form c,,rv,,:, n6 are derived from ,w,n 7 to make straight,n 8 to rectify. It is l ikely that this meaning of equity became attached to ,,w•o because it denoted the rectification of the unevenness of the law , engen'dered by the application of the stri.ct law. Secondly, the term noN �!lwo n 9 the j udgment of truth, 1 2 0 signifies laws which are truly j ust and morally right, in contradistinO the law of peace, 1 21 views the end 122 of law specifically to be · the preservation of peace 123 in behalf of which a relaxation of the strict law is sometimes necessary. Isaiah portrays the future j udicial activicy of the Messiah as one in which equity plays the most sig­ nifican:t role, "And he shall not j udge after the sight of his eyes. 1 2 4 ◄ I Kings 3 : 1 1 , Prov. 2 :9 and 2 8 :5. s Isa. 1 1 :4 and Mal. 2 :6, where 111U'l.l is rendered by aequitas. n 6 I n Babylo.n ian Jaw, Misarum (equity) i s opposed t o Kettum . (firm, strict Jaw) , cf. Koschaker, Revue Historique de Droit Franr;ais, 1935, pp. 424-42 5 , and Price, J A O S, 52 ( 1 932), p . 1 74. For equity in Islamic law, cf. Santillana, Istituzioni di Diritto Musulmano · Malichitto, I , Rome, 1 92 6, pp. 70-73 . f'7 Cf. Deut. 6. 18, ::i1t;1;i1 ·w1•;i n•t11v1 from which the rabbis derived certain rules of equity. Jerome translates this phrase by placitum est et bonum, perhaps he was thinking of the Roman -rule incorporated in D. I .4. 1 . l. Quad principi placuit, legis habet v·igorem, (cf. _Steinwenter, St·udi Bonfante, I I .423, note 1 1 ) . Anyway ::i1t;1;ii ,w•;, does correspond to the Roman bonum et aeguum, cf. note 105. 118 Cf. Isa. 40 :5. In Prov. 1 1 :5 there is :;i.n allusion to the fact that the j ustice o( the upright is attained by the rectification of his path . u9 Ps. 1 9 : 1 0, Prov. 2 1 : 14 , .Ezek. 1 8 :8, Zech . 7 :9. For Ps. 1 9 : 1 0 , cf. Rash i to 'Ab. Zarah 4b, s. v. nl.lN 1::1 ::in:::i N? J'i. Note that Mishpat . in Micah 3 :8 is rendered by the Targum as a Jaw of truth, t;11:Vpi J'i. Observe also that the spirit of God is in apposition to l�w and strength , i111::Jll t;l:lt/17.l 'i1 m , . m C f . also Mal, 2.6 and Cicero, D e Legibus, H . 1 1 , u t perspicuum esse possit in ipso nomine legis interpretando inesse vim et sententiam iusti et veri legendi. On law and truth, cf. Hirzel, Themis, Dike und l'erwandtes, 1 907, p. 1 14, n. 4 and pp. 4 1 5-4 1 6. m Zech. 8 :1 6. The rabbis explain it as arbitration, because, as they pu t i t, C1?tll J'N t;l:lt/17.l tll'ill c1po::1 N?;i , Sanh . 6b. Strict law is .. often incompatible with peace, cf. the remark of Steinwenter, " Nicht den_ Strafrichter sondern den Friedens- und Schiedrichter fordert die alte Zeit," cf. _ Die Streitbeendigung durch Urteil, Schieds­ spruch und Vergleich nach Griechischem Rechte, 1925, p. 29, note 1 . m Cf. Pou nd, "The End o f Law as developed i n J uristic Thought, " in Harvard Law Review 2 7 ( 1 9 1 4 ) , p. 605 . · ••J The rabbis deriv�d their regulations 017 111 •:iii 'l:lC, from Prov. 3 : 1 7 , cf. Git. 59b and Yer. Ket. IX.4 (33a), cf. also Blackstone, Commentaries on the Laws of England, I . 349. 12� Isa. 1 l :3-4, cf. Ibn Ezra , ad lac., a nd San h . 6b, mN1, l'l'lltll ;io N? N p•,1;, 1? J'N •. A j udge who suspects that the witnesses are lying should not render a decision on the basis of their evidence, C'i'YC c•,v;ii ? •Nm ,cN• N? lil ;ic1,c NliTIII ] 'i::l l)i1'tll J"i? J'lC 11

11

50

J EWISH AND ROMAIN LAW

Neither decide after the hearing of his ears , but with j ustice shall he j udge the poor , and decide with equity fot the meek of the land . " We have already noted b�fore that the phra$e spirit of the law r,gwo n,, is Biblical , and the term letter of the law ;,iin;i 10 niN is rabbinic. Suffice it to say that the phrase spirit of the law has left its mark in rabbinic phraseology. There is a statement, that one who violates an oral pact , acts contrary to the spirh of rabbinical law n,, l'N ilO'i1 ;,nu C'O:>n .125 The same phrase is used with respect to a person who bequeathes all his property to stran�ers, and thereb)' disinherits his children. 1 26 The an tithesis between letter and spirit does not form one of the rules of classical Jewish hermeneutics, yet it does figure prominently in the in terpretation of the rabbis. The general rule is to follow the letter, and only in exceptional cases the spirit of the law. 1 2 6a R. I shmael reported three instances where the traditional interpretation deviated from the letter of the law, 12 7 Nipo n::ipiy i1:>?i1 mo,po i1tv?tv.::i and three examples where he himself interpreted the law according to the spiri t128 ?tvo r o::, w,,, ?NS,Otv' 'i i1'i1tv c,,::i, i1tv?tvo ,nN m . R. J udah maintained that one who translated Scripture literally, in opposition to the authorized Aramaic version , misrepresented the sense , and he who paraphrased it is as blameworthy as a blasphemer1 2 9 pi o!l clino;, pn,n ipt11 ,:i,c l;, •n c•,v ,1m,::i ,,,n ,,,p Ni'l'1 u:mnt-t (Shebu . 30b-3 1a). I n Roman law, a magistrate or one presiding in a criminal case who allows false testimony to be presented by which an innocent person may be prosecuted or coi:ivicted, is liable under the Cornelian law relating to assassins and poisoners. Lege Cornel.ia de sicariis et veneficis tenetur, . . . quive, cum magistratus esset publicove iudicio praesset, operam dedisset, quo qu·is falsu'm indicium profiteretur, ut quis innocens conveniretur condem­ naretur (D. 48.8 . 1 pr. ) . 1 2s B . M. 48a, cf. also M . Sheb. X.9, T. Sheb. V I I I . 1 1 and parallels, Num. Rab. X.8 (ed. Vilna, f. 38c) . This reminds one of t�e Roll\lan rule, nuda pactio obligationem no·n parit, D. 1 1 . 14. 7.4, cf. M . . Roberti, "L'influenza cristiana neUo svolgimento storico dei patti nudi," in Christianismo e Diritto Romano, Milan, i935, pp. 87ff. 126 B. B. V I I I .5. 126 a The principle formulated by the Amoraim, 1�1111.!l •i•p N1'1' Nipcn j'N, Shah. 63a, represented also the opinion of the Tannaim, cf. B oaiz Cohen, "Towards a Philosophy of Jewish Law," in Conservative Judaism, vol. VI, np. 1 , 'pp. 7-9. In Islam too every rule must be taken in its literal meaning (Zahir) u�iless there is an indication to the contrary, on the authority of the Prophet, or tbe consensus of the scholars, cf. Schacht, The Origins of Muhammadan Jurispruq,ence, p. 56, and Goldziher, Die Zahiriten, p. 1 2 2 . The Moslem Fikh always strove, to use the words of Goldziher, "den schroffen Buchstaben des Gesetzes bah XI I . 15, pp. 1 1 2-1 13. According to Philo ( Cherub. 10 and Vita Mosis 1 1 1 .8 as well as Midrash Tadshe, ed. Epstein, p. 15) the two cherubim represent goodness and authority, or what the rabbis call justice and mercy, i. e. Din and Rabamim ; cf. Sifre Deut. 26 and Cohn, Die Werke Philos, I, 1 909, pp. 1 9-20, Ginzberg, Legends, VI , 44, note 241 , Wolfson , Philo, I , 224, I I , 136, and Zucker, R. Mubashshir's Critique of R. Saadya , 1955, p. 1 18, note 295. Cf. also l;Iagigah 14a. 1 4 1 Such as Tsedakah, Mesharim and Mishpat Emet. The thought conveyed by this phrase is the same as that expressed by Seneca : "Hand down your opinion, then , 0 judge ; state who seems to you to say what is truest, and not who says what is absolutely true. For to do that is as far beyond ou r ken - as truth itself." (Moral Epistles, 65. 10 ) . Cf. the Rabbinic saying : "A judge decides in accordance with the truth as he sees it," Sanhedrin 6b and parallels. 1 1s For example, in Ex. 18.20 and Deut. 6. 1 8. 1 6 1 Cf. Boaz Cohen , "Letter and Spirit in Jewish and Roman Law," op. cit. , pp. 130-131, and Strack, Commentary on Matthew, p . 341. Whether a Beth Din must alway$ , enforce a rule iq accordance with equity, see Isserles in 'J;Joshen ha-Mishpat, 12.2 and Pitb,e Teshubah, ad loc. 1 11

1 2

98

JEWISH AND ROMAN LAW

action, where one party stands to gain, and the other party is in no hazard of losing anything, the latter is constrained to yield on the grounds of equity, and may not insist on the Sodomic principle of strict law. 1 1 1 According to an ancient rabbinic inter­ pretation, the people of wicked Sodom 1 7 8 committed injustice by insisting strictly upon their rights without regard to a feeling for fairness. 1 1 11 Justice is also furthered by the introduction of the principle of judicial discretion. It gives an opportunity to the judge to exercise j udgment in pronouncing a decision and in imposing a penalty in accordance with the circumstances of the case which adherence to an arbitrary ruling would not permit. 1 8 0 Justice is also promoted by the infusion of moral principles into the law, such as that man is innocent until he is proved guilty,1 81 or that man can not be made to incriminate himself. 1 82 The principle of individual responsibility for crime and sin established by .the prophets, rules out the possibility of guilt by association.IB3 1 11

Baba Batra 12b. With regard to the application of this principle to J.lalitsah, cf. Sheyare Korban to P. Yebamot IV. 1 2 , s. fl. Mahu . . For the Talmudic maxim; "The one profits while the other loses nothing," cf. also a similar notion in Cicero, De Officiis, 1 . 16.52, and Daube, Forms of Roman Legislation, 1956, p. 62 . 1 78 Abot V.10. 1 1, Sanhedrin 109b. i a o Ketubot 94b , cf. Lampronti, s. fl, Shuda di-Dayane, pp. 100b-10 1a. Gaius enumerates various bonae fidei actions where the iudex appears to have discretion (libera potestas) in deciding. Among them are actions on deposit (depositi) , cf. Gaius IV.6 1-62 . Note also Inst. of Justinian, IV.6.30 and Ferrini, 0pere, I I , 408. Now libera potestas is not j udicial ·power, but judicial discretion, which is the power expressed by the courts to determine questions to which no strict rule is applicable. Similarly in Talmudic Law, judicial discretion is allowed in actions on deposit, cf. Ketubot 85b. 181 Ex. 23.7 and Deut. 1 7 .4, 6. For the Stoic view, cf. Bury, History of the Roman Empire, New York, 1 893, p. 5 2 7 . The presumption of innocence came into the common Law from the Roman law via the canon law, cf. Corpus Juris, vol. 40, p. 1 245 , note 1 7b . 1 82 Cf. Sanhedrin 25a, Enzyklopedia Talmudit (Hebrew) , I , 255-2 5 7 . Lam­ pron ti , Pab,ad Yitsbak, I , Lyck, 1 87 1 , ff. 1 2 7b-128a, and Hezekiah Medini, Sdei }Jemed, 1 . 24-28. 1 83 Cf. Jer. 3 1 .29 and Ezek. 18.2. "Often even a whole city· suffers for a bad man who sins, " cf. Hesiod , Works and Days, 240.

LAW AND ETHICS IN LIGHT OF JEWISH TRADITION

99

Cases of doubt should be resolved .in favor of the accused.IB• A person may not benefit from a sinful or illegal act. 1 8s ·Many interpretations of the rabbis which apparently are a deviation from the letter of the Biblical law, were undoubtedly animated by ethical considerations. Granted a society with a just legal order and a fair administra­ tion of the laws, an ideal situation which has seldom if ever prevailed, there still would be an excess of cruelty, suffering and injustice. For the law can not prohibit many things it disap­ proves, which makes it possible for a wily man to be vile without violating the letter of the law. 1 86 For a legal system attempting a total implementation of the idea of justice, would of necessity lead to the risk of an insufferable state of tyranny. I B 7 Consequently, a wide margin is open fpr injuries without legal redress. The law enforces the payment of a stipulated wage, but it does not enforce a just wage. The law compels a man to deliver what he has contracted to sell, but does not 'ordinarily institute a fair price. 1 8 8 In Jewish law overreaching in case of sale, 1 8 9 invalidates the purchase, a rule which was adopted by the Romans from Jewish law and known as laesio enormis. 1 9 0 The law punishes physical affronts1 1>1 but not insults. 1 92 Slander is 114 Cf. Baba Kamma 46a. 18s Cf. M. l;lallah 1 1.7 and my "Betrothal in Jewish and Roman Law," in Proceedings of the A merican A cademy for Jewish Research, XVIII (1949) , 102, note 191. This corresponds in part to the Roman doctrine of unjust enrich­ ment, for which see Z. S. S. , 71 (1954), 563 . . 116 Nal;imanides to Lev. 19.2. Laws are like spider's webs, they hold the weak and delicate who are caught in their meshes, but are torn to pieces by the rich and powerful (Plutarch, Solon, V.2). 1 8 7 Paulsen, System of Ethics, p. 633. 181 Cf. de Francisci, "Justum Pretium" in Studi in onore di Ugo Enrico Paoli, Florence, 1955, pp. 2 1 1-218. 11 , Baba Metsia 4.3. 1'° Cf. Volterra, Diritto Romano e Diritti Orientali, 1937, p. 225. Cf. also R. Dekkers, La Lisi.on 'P.norme, Paris, 1937. 1 91 B aba Kamma 8.1. 1 92 F or Bosket Debarim, cf. Tur and Beth Joseph to l;loshen Mishpat 1 end, (ed. Vilna, f. 4b). A scholar who does not avenge insults, but who harbors resentments like Nal;iash, King of the Ammonites, is no true scholar, cf. Yoma 22b-23a, Shabbat 63a and Bacher, Die A gada der Palitstinensischen A moriter,

1 00

JEWISH AND ROMAN LAW

punished but there are subtle ways of ruining the reputation of a man, for which no penal formula can be found. Nor does the law compel a man to give every one the honor which is due to him. 1 93 -The rabbinic pronouncements about honoring our fellow men are merely moral maxims without sanctions. 1 94 The law punishes assault and battery,1 95 whereas causing annoyance, arousing anger or grief - or exploiting another are unpunishable offences. The statement in the gospels1 96 "but I· say unto you, that whosoever is angry with his brother without cause shall be in danger of judgment," 1 1>7 can only refer to moral judgment. While adultery is · punishable, tale bearing or intriguing, by which families · are disrupted, are not chastised. Stealing, in a legal sense is not only taking some one's property without his intelligent consent, 1 9 8 but also using x 99 false measures and I (1892), 1 20, n. 6. In Kiddushin 28a it is said : If one calls his neighbor "wicked" the latter may privately avenge himself. Cf. also Ta'anit 7b, where it is stated when it is permitted to call his fellow "wicked." 1 _ 93 Cf. Abot 1 1 . 10. Cf. also M. Naudet, De la Noblesse et des recompenses de l'honneur chez les Romains, 1863 . i 94· The rabbis wistfully observed : " Courtesans adorn one another, how much more must scholars be regardful of one another's honor" (Shabbat 34a), and Plato noticed that there is honor among thieves (Republic, 35 1 C) . Cf. Cicero, D e O.lficiis, 1 1 . 1 1 , 40. i 9s Baba Kamma 8. 1 . 1 '6 M att. 5.22, cf. also Strack and Billerbeck, Kommentar, I, 282 •. 1 ,1 The phrase �voxos fo·Tcu TD KpLue, reminds one of veniat in iudicium in Digest 16.3. 1 .42, for which, cf. A. Magdelain, Les Actions Civiles, Paris, 1954, p. 3 1 , note 3. The use of �voxos is indirectly influenced by Aristotle, Rhetoric, 2.2.27 (1380a) ,ca.t Tous EPa.PTLovs TOVTo,s Evoxovs PTa.s E?r:>? 1l ON1 p.i:-t:> llt1;'1 '1i1 ' n p . . Cf. also Me­ kilta Mish patim 8, ed. Horovitz, p. 275 . Similarly, in ' Roman Law it is as­ s umed that an eighth month foetus will not live, cf. Sentences of Paul IV. 9 . 5 . and Aulus Gellius I I I , 16. , Savigny, System des heutigen Romischen Rechts, I I , p. 392 , note 1 , and p. 403 et seq. and Leist, Graco-italische Rechtsgeschichte, Jena, 1 8 84, p. 37.

L AW OF PERSONS

tot,,

133

i,iv�,i1 ,o,� p;vorv · , li1:i? i1?n.l? K? ,,:i::i P'� □i1'ltv P inK �::iM, ,�,, ,::J ')l?D rvon, ,jwi1i i1?ril, (8: K. VI I I 2 ) . According to the Talmud the con troversy bet\Yeen the sages and R. Simon turns upon the interpretation of the verb ,,, to give birth to . The sages main­ tained that ,, ,,,,, means "being born in the natural way , " whereas R . Simon held t�at the term comprehended be1ng born even as a result of a Caesarian section . I n a statement quoted from Ulpian in D . 2 8 . 2 . 1 2 we read : When it is said that the birth of a child breaks a will , the term birth must be understood to apply also where it was born by an operation . For in this case it breaks a will , provided it is born with patern al control. Quad dicitu r filium natum rumperc testamentum , natum accipe et si exsecto ventre editus sit, nam et hie rumpit scilicH si nascatur in pcitestate . We see here that natum includes one born by a Caesarian , 3 0a j ust as R. Simon understood the term ,,n . At this point I should like to draw attention to some interestin g parallels between Jewish and Roman: Law w_i th regard t o the status of children born of irregular marriages. As is well known , Scripture has proscribed certain unions between the sexes but nowhere indicates what would be the condition of the issue of such prohibited marriages. However in the M ishn ah (�iddushin 1 1 1 , 1 2) four basic principles are laid down with respect to this situation . ( 1 ) If the marriage is valid and sinless, the children born of such a uni�n follow the status of the father. l ' tvnp fl''fl' c,po I;,:, 3 oa

A similar view is presupposed in Digest 6.2 . 1 1 .5 . Idem est et si ex par t u partus est e t s i n o n natus, sed post mortem matris exsecto ventre eius extractus est. The same rule (concerning a Publician action) applies in a case of the child of the offspring (of a female slave,) even if it was not born, but after the death of its mother was extracted from her womb by a Caesarean opera­ tion. In keeping with this statement is the following rule in Digest 50. 1 6 . 14 1 . Etiam ea mulier cum moreretur creditur filium habere quae exciso utero edere possit. A woman , when moribund , is considered to have had a child if it is taken from her by means of a Caesarean operation. However, the opinion of Paulus in Digest 50 . 16 . 132 . 1 seems to be at variance with the above. There we read Falsum est earn peperisse, cui mortuae filius exsectus est. It is false to say that a woman has brought forth a child, if the offspring has been re­ moved from the mother by a Caesarean operation after the latter's death.

1 34

JE WISH AND ROMAN LAW

1:i.:i, ri�tvJtv ri•,�,rv•, :,,, , m:,:, ,r ill' t-tl i:, m int-t 7,1:, ,,m :,i,:,.y 1•�, ,�,rv• ,, ,,,, . ( 2 ) I f the marriage is valid but sinfu l , e . g. where a priest marries a divorcee , the children born of such a union follow the status of the inferior paren t. ,,,:, :,i•:,.y rv,, rrv,,p rv•rv c:iipo I:,:, riiroo �,•,ii lil:,, :,�1 , m il!Vl il ,,,l 1:i.:i, ilJO?� ,r 1 P �, cm�:, ,n� 7,,il il)' m, (3) If the marriage is invalid , . because the parties to the marriage can have no conubium with one another, because it is an incestuous relationship , then the children are illegitimate . ilT'�l iroo 71:,,:, T!Vlip Cl' inN l:,y :,I:, IV' · ?:it-t l'tt'l7p l'?S, ii? l'N!V '0 ?.:il :,im:iiv m•,yjj l:,:,o r,n� ,y t-t::lil m . (4 ) I f the marriage i s invalid because the mother can never have conubium, then the children follow the mother , e. g. if a Jew marries a Gentile woman 3 0b or a slave girl , 3 0 c :,I:, l'NIV '0 ',:,i r,• i:,Jl :,n�tv, ,,, m ilt'Nl :,mo:, ,,m prv,,p C' inN ,, N?l ,,,, N? .

,�,iv•,

I n Roman law , in de Statu Liberorum , on the status of children we find the same four basic principles , if we make allowances for certain deviation s in the Roman law due to the different family set-up . ( 1 ) Child ren born o f a _justum matrimonium are in the power of the father. As Ulpian (V. 1 ) notes : In potestate sunt liberi paren tum ex j usto m�trimonio nati . Here j ustum matrimonium3 1 In the year 388 C. E. the Emperors Valentinian, Theodosius, and Arcad i us, prohibited marriage between Jew and Christian and imposed the penalty for adultery for such union , cf. Theodosian Code. I X . 7 . 5 . , and Code of Justinian l . 9. 5 . 3o o N atronai Gaon held that a child born of a female slave and her Jewish master was legitimate. Cf. Lewin, C'll�l1"1 ,�,� to Yebamot, p. 38. Noteworthy is that a similar rule exists in Moslem Law. Cf. Wel lhausen, " Die Ehe bei den Arabern, " Nachrichten von der K. G. d. W. zu Gottingen, 1 893 , p. 440, and Juynbol l , Handbuch des islamischen Gesetzes, p. 236. 3 1 Ulpian (V 2 ) remarks further : J ustum matrimonium est, si inter eos, qui nu ptias conu bium sit ; Similarly Gaius (I 56) observes if a Roman citizen cont racts wedlock with a RomaIJ. lady, or a La,.tin, or a peregrina with whom he has conubium , the children take the status of the father. (Liberi patris condicionem sequantur) which is exactly equivalent to ,:m, inN 7',1;, i',1;,, the child follows the status of the father. 3ob

LAW OF PERSONS

135

corresponds to i1i1 :1v l'N1 l'rv,,p W'W c:n po ��- Incidentally it may be observed that the Hebrew term- rw,,p us� to S1gnify betrothal connotes also conubium / narnely the legai capacity to enter into marriage . . CoIIubium est · uxorem j ure ducendae facultas (Ul­ pian 5.3) . For the rule holds in Jewish as well as in, Roman law that one may not become betrothed to a person one may not marry. (D. 2 3 , 2 .38) . (2) Roman law held that in certain marriages the children followed the status of the inferior parent , e. g. the child born of ah alien father and of a Roman mother. This was in accordance with the Lex M i_nicia . Quoniam lex Minicia, ex alterutro pere­ grino natum , deterioris parentis condicionem sequi j ubet. 3 2 (3) If any one takes for a wife , a woman whom he has no legal right to marry, he contracts an incestuous marriage, his children are not subject to his authority, and are illegitimate, as if conceived in promiscuous intercourse. Si quis tam , quam n on licet, uxorem duxerit, incestum matrimonium contrahit, ideoque liberi in potestate ej us non fiunt , sad quasi vulgo concepti spurii sunt (Ulpian 5 :7) .33 (4) Slaves possess no· conubium34 and consequently a child born of a free person and a slave follows the status of the slave mother. Cum servis nullum est conubium (Ulpian 5 . 5 ) and elsewhere we read . Ex libero et ancilla servus, quoniam , cum his casibus conubia non sunt , partus sequitur matrem (Ulpian 5 . 9) . Now any one who studies the rules o n this subj ect i n Gaius 32

Ul pian (V, 8) cf. also the similar' rule in Gaius I 78, where the defective text is conj ectured to read : is qu idem peregrina parentis condicionem se­ quantur, ed . Zulueta , Oxford 1 946, p. 24. 3 J Gaius (L 64) writes : Ergo, si qu is nefarias atque incestas nuptias con• traxerit, neque uxorem habere videtur neque liberos . The phrase neque uxorem habere corresponds to the Talmudic formula 7 • 0.!lin 7•rz,,i,p J'tt. 3 4 Cf. Sententia Pauli X I X 6 . Inter servos matrimonium con trahi non potest, contubemium potest. Cf. also Code of Justinian V 5.3 ; I n the Digest (I 5 . 24.) we find the general principle that "Lex naturae haec est, qui nascitur sine legitimo matrimonio matrem sequatur nisi lex specialis aliud inducit. On the general concept of conubium, cf. Corbett, The Roman Law of Marriage, Oxford, 1 930, p. 24 ff.

136

JEWISH AND ROMAN LAW

and Ulpian will realize that the Roman l egislation is 1. n fini tely more complicated than the comparatively simple formulation of. the M ishnah of Kiddushin j ust cited . Nevertheless in spi te of the concept of citizenship and family setup peculiar to the Romans and not found among the Jews the four lead ing principles gov­ erning the status of children are almost the same, when we compare them . ( 1 ) ;i,,�:i; l'N1 rrvnp IV'tv 01po corresponds to the j ustum matrimonium . In Jewish law the rule is i:,r., inN 7,1;-, i?1i1 . In Roman law the corresponding regulation is Liberi patris con­ dicionem sequantur. (2) cmm inN 7',m ,',m ;i,,�y tv'1 l'tv17p tv' tv o,po corresponds to the case in Roman law of the marriage of an alien to a Roman woman in which case the child follows deterioris parentis con ­ dicionem . (3) \Vhat is considered as iroo in J ewish law corresponds to the spurii in Roman law , namely one born of an incestum matri­ monium . (m'iYii 1 0 nnN ?;t; N::li1) . (4) I n Jewish law, children of cl; sl ave girl , follow the mother ' s status ilmo:, i?1it and si milarly i n Roman law w e read partus sequitu r matrem. While the l\,f ish nah u nequivocally lays down the rule con ­ cerning the status o f a child whose mother i s Gentile o r a slave and whose father is J ewish , (�idd ushin 1 1 1 , 1 2 ) we find con tra­ d ictory statements in the same la,w-book with reference to the legitimacy of the offspring when the father is Gentile or slave and the mother is J ewish. 35 According to one view, the offspring i s a bastard (Yebamot VI l , 7 ) 3 6 whereas from �iddushin I I l , 1 2 one is en titled to infer that i t is not illegitimate. This con troversy is brought into the open in Tosefta �iddushin IV, 1 6 where we read p 1,vorv · , .,roo m ' ii1 1:::1 ,,,',,il, ?Nirz,,, n� ?3) ,�:::irz,, '1l il?;t; 1,:::1,,n, it1 iy ,,o,N i1i10'NtV iltvNO t-t?N ,roo pNrv ,roo pt-t ,o,N iry�N

,:i

,:i

,�:i; ,

n,:, .

Js According to Gaius ( I 82) the child of a female slave and a free man is born a slave by the rule of the jus gentium, while on the other hand , the child of a free woman _and a slave is born free. J 6 As was noted by the Yerushal mi ad hoc, and Babli, 70a.

LAW OF PE RSONS

137

The Amoraim , who could not help being awa re o f _ this Tan ­ naitic dispute , sought to explain it as a consequence of the con ­ flicting views ent�rtained on the definition of bastard ('i roo) . As is well known , there are three widely divergent views on this point. R . Simon of Teman 37 held that a bastard is the offspring of a union which makes the parties thereto l iabl e to extirpation . According to R . Akiba , the offspring is a bastard even if the union made the parties thereto liable o n ly to the violation of a negative precept, while accord ing to R. J osh ua, onl y if the union made the parties liable to capital punishment . (Yebamot IV, 1 3 ) . The M ishnah then add s that the practice fo1 lmvs the opinion of R. Simon of Teman . Nevertheless , it seems that the compiler of the Mishnah was vacillating on this rule. For whereas the view of R. Simon is clearly presupposed in l):iddushin I I I , 1 2 ,1 8 Yebamot X , 3 _follows the view of R . Akiba , as was noted i n Yeh. 92a. · Now the union o f a Gentile or slave v;·ith a Jewess constitutes the violation of a mere negative precept , and con­ sequently it would appear that R. Akiba39 would mai ntai n that the offspring of such a un ion is a bastard , whereas R. Simon of Teman and R. Joshua would regard it as legitimate. HO\vevcr, R. Yohanan suggested that even Rabbi Simon of Teman would admit , in this instance, that the child is il_legitimate , because there could be no valid marriage between the parties i:J>'1 'll t,t:,-, 'O"'I n,r,, ,::, ,:,.,,n::, l'to1'1p ,:,:,. ' DDl'l ��i p'::, (Yeb . 446) The Talmu� finds Rabbi Yo.b anan's interpretation objectionable because of a baraita which implies the contrary. (Yeh. 45 a) In three Tannaitic texts where the anonymous authority main­ tained that the offspring is a ,roo , individual Tannaim upheld the opposite view, namely R. Simon b. J udah in the name of R. Simon b. Yohai (Yer. !):id. I I l , 1 2 ) R. Simon b. J udah (Yeb. 45a) , and R. Simon b . E'l iezer (T. !):id . IV, 1 6) . As for R . Meir 1 This is also the opinion of R. Eleazar, Tosefta Yebamot I 10, and the three Tannaim mentioned below, cf. also T. Yeb. II.2, R. Simon b. Menasya also agreed with R. Simon of Teman, cf. M . Hag. I . 7 and Tosafot Hag. 9b 37

s. v. 1�:i . 33

As was already remarked by Tosafot ,B:iddushin 66b s. v. �:, and Yeb. 49a s. v. i,v�rv. J9 Kiddushin 75b.

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JEWISH AND ROMAN LAW

his view may definitely be derived from the baraita in Yeh ; 99a that the offspring is a iroo . Note that the anonymous state­ ment in the baraita (Yer. �id. I I l , 1 2) is taken for granted by the amoraim as the opinion of R. Meir. With respect to Rabbi 1 two opposing views are given (Yeh. 45a) , most likely because the Mishnah contains two contradictory opinions as to the defi­ nition of ,roo . Thus far we have set forth ' the opinion of the Tannaim on the subj ect as they are actually preserved in the Tannaitic saurces. However, the Talmud was sorely perplexed as to R. Ishmael 's stand on the subj ect , as no clear-cut statement of his on this point was known to it. Nevertheless, it tried to deduce his view from a ruling of his which had some bearing on the subj ect . For R. Ishmael4 0 maintained that sexual commerce between a Genti le or a slave with a Jewess disqualified the latter from marrying a priest. ili?O!ltl) ?t-titv• n� ,y, i1'1?i1 ,s,, mi1:m ?SJ N::Jtl) ,::::iyi '1l? l 'lO rrvnl, nm,,R i1? tv' tv 'O i1? rt-t yir, ;-,tl),,l, i1lo,t-t i1'i1n •:, 1;-i:, n::::i, 'Jll) l 'W1 1'l1 mlo',N ,, p t-tw ,Jyi •u t-t�' , 4 1 or if she is a li1-' n::::i , to return to her father's house 4 2 (Yer. Yeb . VI I ,6) The Talmud originally assumed that R. I shmael held that the offspring was a iroo but in view of R. Ishmael 's statement j ust cited it ret1 acted its opinion . (�id. 75b) On the other hand , it is an unchallenged assumption in the Talm.ud that R. Akiba holds such offspring to be illegitimate . (�id . 7 S b , 7 6a) From the Y erushalmi we learn in no uncertain terms that R. Ishrnael4 3 Th is statement was transmitted by Rabbi Yol)anan. Cf. !$:id . 7 5 b Yeb . 45a, 68b, Sotah 26b, and cf. simi l. a r statement in Yer . Yeb . VI I 6 . In Roman Law a woman suffers capitis deminutis maxima if she had intercourse with another person's slave against the will and warning of the owner, quibus invitis et denuntiantibus [dominis] cum servis eorum co­ ierint (Gaius I , 1 60) . 4 0 Which means that she is no longer permitted to partake of Terumah . ◄ J The reading in the parallel passage Yer. Git. I 4 which ascribes the passage to R. Eleazar is incorrect (the Pene Mosheh notwithstanding) for the fol ­ lowing reason ; if we attribute this view to R. Eleazar, he will be contra­ dicting h imself, for R. Eleazar was of the opinion that • oo N?� , rob J'N i111Y ,, o•N 1,10Nrv as was noted by the Babli, E:id . 7 Sb. The reason why R. Eleazar held n•n,:, Nlll' N? •m:, n, rr,o Nil!' N? •m:, n•n1:, Nil!' N? , roo (T. !$:id . V 1-2 , Babli 75b) was simply because they were not careful about consan40

41

1 39

LAW OF PERSONS

was of the opinion that the child born of a J ewess and a Gentile or a slave �s a ,roo as we read cw:J pm' • , p?,o!l lil ilO 'J!>O c;n,:, ,roo '"T?iil ?N,tll' n:J ?V N:Jil- i:Jyi 'iJ ciwo ?Nyow, �:J, (Yeh : VU . 6) . This view was preserved in the Babli (�id . 75b) where , according to one reading , the tradition was transmitted by Rabin in the name of R. I;liyya b. Abba in the name of R. Yobarian ?t-tS,Ott" ' i l i1 c,',, o.E> . C'Ji1:, c;;:J iyo�JW 1:P J il:,i 1 i1 lW it-t ' i'J C'm:, i:J0 . 4 5 Conse­ quen tly they are all of tain ted descent. Thus far we have set forth the views of the Tannaim on the subj ect as the Amoraim unders Lood them . Now we shall see now the Arnoraim felt on this matter. First, what was R. Yo}J.anan 's position in this con troversy ? I n Yer. �id . I I I . 1 2 we have the explicit statement ,roo 7?1i1 l ' iON lil'1il1 tv' p? tll' ii pm' ' i and in Y eb . 45a · we read : \\Then they came before R. Ami h e said to them , R . Yobanan , R . Eleazar , and R. Hanina all held that ,roo 7?1 i1. -1 6 Secon d l y , how did R . Yobanan decide ,roo ,,m in face of the contrad ictory anonymous M ish nah s ? I t is clear from Babli Yeb . 7 0a that h e accepted M . Yeb . VI I . 7 as authori tative , as may be i n ferred from the following observation 47 • , , , , ?"N ,,,,., ,:1;;, p.:i,, �o'n ,,,:,N l'iN, ,::i.,no ,roo tv' iot-ti ;; " i:, l No:, pm' although l\J. �id . I I I . 1 2 clearly implies that a ,roo is one born · of mn, ,:, ':l"n which is not the case of a child born of a gen tile father. R . Yobanan defended his view on the ground that ' 07 ri,r,, ,:, ':l"n:, r tlliip j il:l ' O:m 11':, . . . C'i10 ':,:,;, (Yeb . 44b45a) . Consequently , we can see in wh at dilemma R . Y o}J.anan found himself when he was con fronted with the problem of accepting proselytes from Palmyra inasmuch as many of its inhabitants intermarried with J ews. (Yeh. 1 6a-b) In accordance

,,,:i

,,

tot,,

guineou s marriages as Rabba bar Abbahu pointed ou t ntot-to i ll.lO, l ii l n H T.l i l l.l l.l )i1J ,:i,vm nH (Kid . 7 6a ) cf. also B uch ler, Schwartz Festsckrift, p. 147 , note 5 . · , 44 Cf. also the statement of Rab Dimi (l}:id . 7Sa-b) ' J , :, ;ii, 1:J O ' H V rJtll ' ' ,

, N,w' n J ,v N:ii1 ,:iv,

,oN, l'IJ'P>' · ◄s Cf. the stat�en t in o•m:, r,:,oo l l . 7 ed. Higger p. 66) il.lH� ,�VT.ltv' ' i Iilill.lO p !:1 0 ' l !:1 0 J ' 1' 0H i1 0 'l!:101 rn, •nno 1 ' i1 p,� ' 1 ' l . Accord ing t o another M S. , , r ol.l , , , ;,

, , :, J

the text reads n l 1TT.l0 ' lD O which is less correct. 46 Cf. als� Yer. �id . I I I 1 2 . He gave a similar decision for the people of Gebal , cf. Yeb . 46a. ◄ 1 Cf. Yeh. 7 0a.

1 40

J EW ISH AND ROMAN LAW

with his principle 1Too ,r,,;i he decided ,,o,no CJ' iJ 1'?:lpo p�. However when he was faced with the statement in Mishnah Niddah V l l . 3 , he was forced to admit that this passage implies that p roselytes may be acce p ted from Palmyra : C'?:lpo nio,� mu ,,o,n.o CJ' iJ , but he d id not change his opin ion on the subj ect ,4 8 as far as practical law was involved . I t was universally accepted by all the Tannaim and the Amoraim that the child born of a Jewess and a Gentile or a slave , had the status of a J ew , and the source of the rule was traced to a Biblical verse as we read : �,p i.ON '�nr 1::i 11yoro • , cw,o pn,, i"N n',:iJ;i 10 �::i;i 7J::i rt-ti 7J::i ,,,p n,,�,ro, o 7J::i , ,n�o 7J::i nN ,,c, ,:, m::i N, t-t 71::i ,,,p . 49 Therefore , the discussion centered upon the problem whether the child was legitimate 50 or not . 51 Throughout the ...\moraic period , the question caused a division among the scholars un til it was finally decided that the child was legiti­ mate.52 vVhile ,ve h ave translated the Hebrew word ir7.JO by bastard , as the English translators o f Scripture have done, i t should be remembered that the terms are far from bei ng equivalent. The ◄8 As the Talmud assumes (Yeh . 16b) il'? N1'::l. O N?1 nNr N0'n •:,.1 . It is true that an attempt is made to refu te this assum p tion by the argument 1'N Nni i!ltl/0 cno:, ;,:, I;, ;, pn1 • , but the objection is not convincing. First, as Tosafot ad Joe . s. v. 'N110N remark, 11cc tv• •1::i. 01 m/J?N '!l::i. Jop? t-tl' i mt Non o N::l'N1 l"l/N 1-1cn o 7,, 0 Non o 7;,1 ;i•c,11:-t 'NC c1p0 l;,:,o 1::l.l/1 •1:,l0. Secondly , the principle illtvC cn o:, il:l?il was not an absolute rule, cf. Boaz Cohen , Misknah and Tosefta,

p. 1 3 . With regard to the question concerning the acceptance of proselytes from Palmyra, cL Chajes, Rivista Israelitica, I, 1904, pp. 1 76-1 77 and n?tv;i , XIV, . pp. 549-550. 49 Cf. Yeb . 2 3a, and parallels cited by the C'l'll n!,, to Yeh. 1 7a and I>:id . 68a . For the apparent exception, cf. Aptowitzer HUCA V. 266 note 14, cf. also Acts 1 6 . 1�3. s• For if the ch ild were not considered Jewish, then there would be no question of its illegitimacy as Tosafot Yeh . 23a s. v. 1::i. op remark mirb.t) J 'N1 • 1:il? . s 1 Cf. Yer. Yeb. IV. 15, I>:id . I I I 1 2 , 1 ::i., citvo 10N n,m, 1::i. Jll/Otv • , , l'l/N iT?iO!l wm, ;i::i.pl i!l'l'n CNt/J i1110 1tlJ::). ,,,M ?N1rP' n::i. ? ll lt�Jtp i::il7l 1 1l 'MP J::1 lll/0t/J illlil::l ?. s 2 Yeb. 45b. In Yer. I>:id. I I I 1 2 we read �nz,n, N''tvl · n,1• •:ii cy p? o 1m1' •::i.i ,rv:, ,,,,n 10n , ,, n 1::ili . For the geographical location of 1Jl1 Nnon cf. Saul Lieberman , JQR, N. S . , 36 ( 1946), p. 354, note 1 89 .

LAW OF PERSONS

141

English term bastard sign ifies one who is born out o f v,,ed lock , 5 2 n the vulgo conceptus in Roman Law . Blackstone , ( 1 7 2 3- 1 7 80) in fact , cites the statem ent of Paulus from the Digest ( 1 1 .4 . 5 ) as the so urce for this view , Pater est quern n uptiae demonstrant. 33 He proudly asserted that the En glish Law is superior to the Roman law because in the former, a bastard can never be divested of his illegitimacy , whereas in the latter and in canon lav.· , 5 � the subseq uen t marriage of the parents wipes out the stain and strain of illegitimacy. The French jurist Domat ( 1 62 5- 1696) in his discussion of legitimacy , observes as follows : " Les enfan ts legitimes sont ceux qui naissent d 'un marriage legitiment contracte , et les batard s sont ceux qui naissent hors d ' u n marriage legitime . " 55 \\That is most intere�ting is the sources he gives as authorities for th i s law , namely , t h e Digest , 1 . 5 . 2 3 , the Vulgate D e u t . 2 3 . 2 , and a n Ordonnance d e Charles VI. 1 3 8 6 , which h e ci tes in ful l . The passage in the Digest informs us that they are said to be born in promiscuity who cannot point to their father , or if they can , then he is their father unlawfully, and are therefore called spurii. 5 6 With regard to the Vulgate , he quotes the follm.\'ing : " Non ingredietur mamzer , hoc est , de scorto 57 natus 5 8 in ecclesiam s 2a For the later Jewish law concerning children born out of wedl ock, cf. Eben ha-Ezer, 1.9, (gloss of Isserles) and IV.26, 28, 3 1 -3 3 . 53 Commentaries o n the Laws of England, London , 1 82 5 , vol. I , p. 4-16 . For this passage from D. I I . 4. 5 , cf. Vi!. Fuchs, Die Rechtsvermutung der ehelichen Vaterschajt nach romischen und neueren Recht, Vienna, 1 880, and Windscheidt, Lehrbuch des Pandektenrechts, 9 th ed . Fran kfurt a /M . , 1906, vol. I, p . 2 5 2 , note 1 . · 54 L . c. p . 454, he refers to Institutes of J u stinian I . 1 0, 1 3 , and to Decreta l :;; 1 4 t . 17, c. I . c f . also R. Genestral, Histoire de la Legitimation des Enfants Naturels en Droit Canonique, Paris, 1 905 , p, 93 et seq . 55 Les Loix Civiles dans leur ordre naturel. Livre Preliminaire I I . 1 .3 , e d. Paris 1 7 7 7 p. 9. 5 6 Vulgo concepti dicuntur qui patrem demonstrare non possunt vel qui possunt quidem, sed eum habent, quern habere non l icet qui et spu r i i ap­ pel lantur, 1rap a ,,-�v l.lKos Evlwv KaAElra-L µ7Jrpo!,°EVO'i, cf. also Lipsius, l. c. , p. 4 7 5 note 20. I t is in teresting to note that Philo uses the term vo0os exactly as Pollux does. Speaking of the mixed multitude that accompanied the legitimate J ews out of Egypt he remarks : 't)t upon law . 93 M . Bekorot VI I I , 1 . 96 Wi th regard to the proselyte it is said that : nirt-t? ,m nt-t ;,irum :::i1r,:,;i t-t:::i ;;im:::iru m �o;; ?:i:::i . lv.fekilta, ed . Lauterbach , I, 1 2 8 . This applies with few exceptions to the freed slave in contrast to a slave who was required to per­ form only such n,�I:) which a woman was obliged to do, I:Iag. 4a ; cf. Rashi to B. K. 1 5a and Yeb . 4 7 b . 9 7 T . Ber. V , 1 5 . 9 8 T . R. H . IV, 1 . 100 99 T . Meg. I I , 7 . Sifra (ed . Weiss), f. 38�. 101 M . Zeb. I I , 1 , Sifra, f. 7 8 d . 93

,,mu

1 50

JEWISH AND ROM A N LAW

leaning on a sacrifice , 1° 1 and liftin g the sacrifice 1 0 3 I f a slave took a Nazirite vow during his period of servitude , and it ,vas disallowed by his master ( n::i y � 1Di1 ) , the slave goes free and must com p lete his vow. 1 0 4 Freedmen are re q uired to give the Shekel 10 5 and the surcharge I06 p ::i� p but do not make the avowal , as they have no share in the land. 1 0 7 Freedmen are q ualified to act as j udges in actions involving money matters, but are not eligible to try capital offenses , for only p riests , Levites and I sraelites , who can marry their daugh­ ters into p riestly families may so function. 1 08 Whether he is eli g ible to bear testimony concerning the ap p earance of the New M oon is a matter of dispute among the scholars. 1 09 A freedman may not testify with re g ard to certain matters which he witnessed while he was still a slave . n o T he general rule is that the property of a freedman , who dies without issue , after he secured h is freedom , belongs to the first person who seizes it.rn The law governing kidnap ping covers also the freedman . He suffers capital p unishment if he com mits the crime 1 and if he is the victim , the offender , p a y s the extreme penalty . m With regard to damages , the general rule is that the freedman T . Men. X , 1 3 . Sijra. f. 39c.l. 1 04 M . Naz. IX , 1 , as Maimonides explains this passa ge in his commentar y u pon the Mishnah and in Hilkot Nazirut I I . 18. The text of this passage of the Mish nah possessed b y Maimonides is the same as that of the Cambrid ge , Parma and B udapest MSS of the Mishnah and the Munich MS of the Talmud. R. Abraham b. David , who read in his text 1mi 1 1J c•',wo m ,•n', N� 'l ,-,:i y ', i!l;; challen ged Maimoq ides' interp retation . The Meiri and the Tosafot had the same text a s R. :-\braham b. David. 10 s S hek. I , 3. 106 Shek. I , 7 . 10 1 M a'aser. Sheni , V , 14. 108 Sanh. IV , 2 , but cL Tosafot San h . 36b , s . v. �,n . 109 R. H. I , 7. u o Ket. 2 8 b Tosefta I l l 3 ; R. J o b anan b . Beroka dis p utes this rule. , , m T. B. B . VII , 1. Isaac \Veil's assertion that this rule was borrowed from Roman law is bold and un p roven , cf. his Le Proselytisme cl1e;; les Ju i:fs, Stras­ bourg , 1 880 , p p . 76-7 7 . lH T . B K . VI I I , 1 . 10• 103

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151

is obliged to make restitution for the inj uries committed while he was a slave . nJ If a freed slave or a proselyte married to a freedman a proselyte received an i nj ury from a person while pregnant and suffered a miscarriage , and her husband died , then no compensation is awarded . 11 4 · lf the pregnant freedwoman received the inj uries after th e death of her husband , there are two opinions on the subj ect whether she is entitled to damages or not. us If a woman became pregnant while she was a slave and after she was emancipated she received inj uries and suffered a miscarriage , the damages are awarded to the freedwoman / 1 6 An ox that kil led a proselyte or a freed slave is put to death , but the owner of the animal is exempt from paying ransom i!itJ for the deceased . n1 What w as the position of the freedman in J ewish society apart from his legals tatus ? We have little data in the sources on this point. From Jos�phus we learn of a certain Thallus, a freed man , who loaned a million drachmas to Agrippa ! 1 18 and elsewhere he n3 B. K. V I I I , 1 . I n Roman law if a slave stole something from his owner he is not liable to an action, . : . . Hence th e question, if the slave should be disposed of or manumi tted, would he be liable to th e action for furtum then? It is held that he would not. Uncle est quaesitum, si fuerit alienatus vel manu­ missus, an furti actione teneatur, et placet non teneri (D. 47. 2. 1 7 . 1 ) . n4 B'. K . V , 4 , cf. also the baraita i n B . K . 49a, 42a, T . B . K . IX, 2 0 and Mekilta di R. Simon, p. 1 29 which practical ly repeats the Mishnah with regard to this point. ns B araita in B. K. 49b. This point of law formed a subj ect of controversy between Rabbah and R. I;Iisda. I ncidental ly from this barai ta we learn that the same rule applies if a Jewish woman was married to a proselyte for the fundamen tal rule is , v::i, m,,, •oi . Mekilta to Ex. 2 1 .22 (ed . Lauterbach I I I . 66) . 116 Maimonides, p• ro, ?:lln, IV, 4. While there is no explicit Tannaitic state­ ment to this effect, Mai monides was j usti fied in inferring it from the general rule. ?V:l r,, , p, •11-1, 1-11 ;,111 •o ,v:::i , ·n . Yer. B . K. V, 6. (Sa) as the Maggid Mishnah ad Joe. pointed out. He might also have had in mind the statement in }.1ekilta di R. Siriion, p. 130. ,�,, ;,1111-1;, ?V.:l , , , y n •111• 11llN:, ioNJ ;,�, 1:::, CN :,l;,t1,1 N1i1 ,,,., ', y:i i1? )'N CN1 ? Y :l ' m,,, 1 0,111 . This rule need not be limited to the case where the hu sband was dead. This view of Maimonides is at variance wi th the opinion expressed in Tosafot B. K. 42b, s. v. ;in•;, where we read : i1J'J ] 1 iN ? llli c1?:, ?V:l? ) 'Ni ;,n�iV i111Y:::I i11:lVnltV N'::i•i:, 101 ? l'N1 . m T. B . K. IV, 6 . u s A nt. 1 8. 6 . 4 c f . Sch urer, Geschichte,. I I I , 3rd e d . 1 898, p. 36 and 368-369.

1 52

J E WISH AND ROMAN LAW

speaks of freedmen and freedwomen . n 9 In Acts VI . 9 there is a reference to the Synagoga Libertinornum which • migh t have comprised a congregation of freed s_l aves. 1 20 Of the ten family stocks that return ed from Babylonia to Palestine in the time of Ezra , the freed slave is men tioned i n the sixth group.m With regard to the rule whether it was allO\ved to m anumit a slave in vi ew of Lev. 2 5 . 4 6 , n:i>1n CJi1:l CJ�,:Y� , we find a controversy among the Tannai m . R. I shmael decl ared it permitted , whereas R . Akiba adhering to the literal mean ing of the text , held that i t w as prohibited . 1 22 R . J ose the Galilean also agreed ,vi th R . Akiba, but mad e an exception in the case where th e child of a priest was confused with that of a slave , in which case it ,\:-as perm itted for them to manumit one another when they grew up. 1 2 3 So d id R. Gamliel take the stricter view as one may gather from the following i ncident. Shortly after R. Gamliel accidentally blinded his slave Tebi , he happened to meet R. Joshua and told him rather gl eefully : " Do you know that my slave Tebi is becoming free because I blind ed hi m ? " To which R. Joshua replied that it could not be done without witnesses having been present . n4 R. Eliezer entered into a syn agogue and , failing to find there the quorum of ten men needed for religious services , he forthu 9 Wars , I . 30 , 1-2 and 1 .3 1 . 1 and Ant. , XVI I .6. 1 . In Yeb. 97b there is mention of the freed sons of Yudan , the female slave . 1 •• Cf. Schurer, l. c., vol . I I , 3rd . ed. p. 43 1 note 6 , and Foakes J ackson and Lake , '[he Beginnings of Christianity , London , 1 93 3 , vol . IV , p p . 67-68 , where a ful l d iscussion or' this matter with l iterature is g iven. m In J,:id . iOa , R . I:I isda finds al lusion to this fact in Ezra V I . 2 1 wh ich refers to the celebration of the Passover b y the p riests , the Levites , the I srael ites. □ il'? V Y iNil "1l nN01c:10 ', i:alil ',:,1 , This latter p hrase is su pp osed to include both p rosely tes and freed slaves. In Yer. �i d . IV. 1 ( 65b ) this verse is ex p lained to refer to p rosel y tes only, whereas the freed slaves are alluded to in Ezra I l . 5 8 , and Neh . VI I . 60 ilO?/ll •1:a v •J:a1 □'l'nl;'i ? :::, . With regard to the .1 0',w •i:a y , cf. Yeb. 1 6 b and Tosafot. I. c. , s. v. NO?i.!'::J and Yeb. 24b. For c:•:::,',p •,:i v cf. T. �i d . V , 2 and Ket . 1 4a . m Sotah 3b. 1 :>:i Yer. Yeb. X I , 6. 124 B . K. 74b cf. Yer. Ket. I I I 10 ( 28a ) . Yer. Shebuot V , end ( 36c) where i t i s stated that he struck o u t one o f h i s teeth.

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153

with manumitted his slave. us '\Nhile the strict law seems actually to have prohibited the freeing of slaves, it appears that the rabbis took advantage of every loop-hole in the law in order to set them free. Among the Romans, as we shall see presently, there was the tendency to prohibit manumission . I n Roman law, the status of the freedman underwent many changes from the early period 126 to the time of J ustinian. In ancient times the condition of the libertinus was little different from that of the slave ,127 and his status was perpetual . By the fifth and sixth century A U C it was limited to the second generation and afterwards to the first, The grandson of the former slave was born free, 128 and this was the case of any child of a free father. 1 29 A freedman became a Roman citizen if he had been manumitted when he was not more than thirty years of age, was owned by his master ex j ure Quiritium , and was set free in one of the three ways provided for by the law, otherwise 13

s Git. 38b, Ber. 47b. With regard to the manumission in ecclesiis, cf. Schurer, Geschichte , vol. I I I , 3rd. ed. , p. 53 ; Deissmann, Lig ht from the A ncient East, revised ed. , p. 32 1 et seq. ; Buckland, The Roman Law of Slavery , p. 44945 1 ; and Pernice, "Zurn romischen Sacralrech te, " in Sitzungsberichte d. K. P. A . d. W. zu Berlin, 1886 I I . , p. 1 202, note 5. 126 For the freedman in Roman law, cf. the surveys in the standard text­ books,, and the article by Steinwenter, Libertini in Pauly-Wissowa, Real­ Encyclopiidie , vol. 25 ( 1 926), p. 104-1 10 to the literature cited there, cf. also Duff, Freedmen in the Early Roman Empire, Oxford , 1928 ; Mommsen, Romi­ sches Staatsrecht, Leipzig 1 887, I I I , 420-45 7 ; and M. L. Strack, " Die Frei­ gelassenen .in ihrer Bedeutung fur die Gesellschaft in der Antike, " in Histori­ sche Zeitschrift , vol . 1 1 2 ( 1 9 1 3 ) , p. 1 ff. For the freedman in Greek law, cf. Thalheim, Freigelassene in Pauly-Wissowa, Real-Encyclopiidie, vol. 13 ( 1 9 1 0) , pp. 95-99. 12 1 Cicero, ad. Quint. , I . 1 ; cf. Declareuil, Rome the Law-giver , New York, 1 926, p. 134, note 2 . 128 A ccording to Deut. 23.9, the third generation of the Edomites and Egyptians was admitted , to the Jewish fold ; cf. also Buckland, Textbook of Roman Law, 2nd ed. , Cambridge, 1932, p. 88, note 1 . n9 Cf. Declareuil , l. c. , p. 1 3 5 , Quintilian, VII 3 :2 7 contrasts the freedman with the person who is assigned to a creditor for debt and is resto,ed to liberty , Servus, cum manumittitur fit libertinus, addictus recepta li bertate ingenuus . Cf. also I I I 6.25 and V lO, 60. This is exactly the difference between a freed Canaanite slave (i,nitvo ,:ii,) and a Hebrew bondman who becomes free.

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J EWISH AND ROMAN LAW

he became only ,, Lati n . 1 3 0 ·'{ct a freedman could not hold _ magistracies nor vote in · the comitia µnder the empire . 13 1 The patron had certain rights in and obligations to his former slave. 13 Libertini had full control over their children and could make a valid will 1 3 3 and be appointed as witn�sses to a will. The freed person , in certain respects with regard rn matrimony, was re­ garded as on the same . low plane as actors. 1 3 4 The general rule was th at freed persons could marry free born persons with the exception of senators and their children . 13 5 A Sena tor could marry a freedwoman only with the consent of the Emperor. 1 3 6 _ Otherwise it was prohibited to a Senator or to his children to the fourth generation _ to marry a freed person. If such a marriage took place it was void ( nuptiae non erunt) . 1 3 7 Similarly, a Senator may not marry a woman convicted of a criminal offence 1 3 8 (damnatum publico iudicio) for example, adultery. 139 If a man of senatorial rank takes a freedwoman as h is wife , although legally she may not be his wife, her status is such that she will become his legal wife , if he loses his ran k . 1 4 0 If the daugh ter of a senator is a prostitu te , an actress , or guilty of a criminal offence , she may marry a freedman . 14 1 I f a freedwoman posing as a free born person marries a Senator, she can derive no advantage from 2

1

Cf. Cicero, Topica, I I 10, Gaius, Institutes, I 1 7, \V. H. Rattigan, A Treatise on the Law of Persons , London 1 87 3 , p. 1 44- 1 5 2 . 1, 1 M ommsen , Romisches Staatsrecht, I I I , 440. 1 J• Cf. Buckland, Textbook of Roman Law, 2nd ed . Cambridge 1932, pp. 8090 ; Greenidge, Roman Public Life, London 190 1 , pp. 144- 1 45 ; S. Brassloff, Sozialpolitische Motive in der Romischen Rechtsentwicklung, Vienna 1 93 3 , p. 32 ff. , 63 ff. ; and Taubenschlag, The Law of Greco-Roman Egypt, New York 1 944, p. 76, note 2., and Monier, Manuel de Droit Romain, I , 1 945 , p. 240. 1 JJ Cf. Taubenschlag, l. c., p. 1 50 and p. 1 5 1 note 4. 1 34 Cf. Digest, 2 3 . 2 , 42 . 1 ; 2 3 . 2 .44 pr and 2 3 . 2 .47. i3s Cf. D. 23.2.23. Before the time of Augustus, marriage between freed­ men and freeborn were prohibited, Livy, 39. 1 9 cites one exception, cf. Cuq. Manuel p. 10 1 , note 3 . 1J 6 Cf. D . 2 3 . 2 .3 1 . I37 Cf. D . 23.2 .42 and 23.2 .44 pr and they cannot inherit each other as they have violated the Lex Julia Papia et Poppaea (Ulpian 1 6 . 2 ) . 1 3s Cf. D. 2 3 . 2 .43 . 1 0 . 1 39 Cf. D. 23.2.43 . 1 2 . I4 o C f. D . 2 3 . 2 . 2 7 . I4I Cf. D. 2 3 . 2 .4 7 . 3°

LAW OF P E RSONS

1 55

her doing so , as it is void (quia ex dote nullum lucrum habet quae nulla est) . 1 4 2 In the time of Augustus , the practice of manumitting slaves became so widespread that it was necessary to take ]egal steps to curb it. 1 43 While a number of freed persons became famous and distinguished , such as Livius And ronicus, Terence , and Verrius Flaccu s , on e of the most learned men who wrote in Latin , the manumitted slaves had a deteriorating effect upon the Roman citizens. r44 In the time of Hadrian , by virtue of a rescript issued by him , a freedman who had obtained _ the right to wear the gold ring was considered as free born . 1 45 The emperor would grant freed­ men , usually with the consent of the patrons , by virtue of an ex post facto juris, the rights of ingenui, so that they were in the same position as men born free. 1 4 6 In the time of Justinian the jus annulorum was bestowed upon all freed persons alike . 1 47 In conclusion , if it be asked what is the significance of the parallels adduced in this brief study, I should like to answer by paraphrasing some of the remarks of Professor Koschaker in his lecture Forschungen und Ergebnisse in den Keilschriftlichen Rechtsquellen,14 8 in which .h e made the following points. First, striking similarities may be explained by the application of the ·principle of Elementar- und Viilkergedankens, propounded by Adolf Bastian . According to his theory , peoples on the same cultural , economic and social level , in different parts of the world 4 C f. D. 2 3 .2.58. 1 43 Cf. Diony sius of Halicarnassus , IV , 2 3 , and Carcopino , Daily L1fe in p A ncient Rome, New Haven 1940 , p . 60, and 295 note 38. 1 44 Cf. W. W. Fowler , Social Life at Rome in the A ge of Cicero, New York 1909, p p . 2 2 8 . There is a view that Gaius , the author of the Institutes is identical with the freedman, Gaius Laelius Felix , but it has not been accepted , cf. Muirhead , Historical Introduction to the Private Law of Rome, 3rd ed . London , 1 9 1 6 , p . 4 1 8 . Tiro , a freedman and friend of Cicero , was an accomp­ lished man of letters , and edited three books of Cicero 's j ests , cf. Q uintilian , Int , Or. V I . 3 . 5 . 1 4s D. 40. 10. 1 6 , Fr. Vat. 226. 146 In such a case , the patron could not succeed to the estate of the freed­ man , cf. D. 40. 1 1 .2 , cf. also D. 38.2.3 , and Taubenschla g , l. c. , p. 140 note 1 2 . 1 47 Novels, 78. 1 and 2 . 1 4 8 Zeitschrift der Savigny Stiftung, 49 ( 1 929 ) p . 1 9 1 ff. , 1 2

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and in d i fferen t epuchs, ten d to develop similar or ide ntical legal institutions due to the fact that people on the same plane of culture are animated by similar drives. The net result of this phenomenon is the appearance of typical and atypical factors in the developmen t of law. Secondly, while a given system of j urisprudence can only be properly understood by studying its own sources and resources, an alogies from other systems will be useful in reinforcing the understanding of a given legal institution , ru le , or lm\· , by viewing them from aspects hitherto unnoticed . Thirdly , there is the i11con trovcrtible fact of Eastern influence u pon Roman Law since Constan tin e . While 1-I i tteis labored successfully to c:\:hibit th e Greek and Hellenistic sources of this in fl uence , the oriental clements of Hellenistic l aw have not yet been fully d istinguished. 1 4 9 One can , says Koschaker , "accept the oriental origin of donatio propter nupt?'.as, the arrha sponsalica and admit oriental influences in the treatment of the concubinate in l ate Rom an Law . " However , i t i s our feclins- that there was a n interchange of legal ideas , 1 5 0 between J ews an d Roman s , u nacknowledged of q 9 At Berytu s was fou nded the celebra ted school of Law i n the second cen­ tur y , wh ich played a prominent rol e i n i:he development of j u ridical doctrine under the Empire, cf. Col linet, Histo ire de l'Ecole de Droit de Beyrouth, Paris 1 92 5 . Beiru t bein g not too far from Caesarea, it was not impossible for the rabbis to have been in contact with Law students from that school . " I n proportion " says Cumont, "as the 1·us civitatis was gran ted to an increasing number of Syrians, the application of Roman Law among populations hitherto governed by Greek laws or native cus toms, mul tiplied the questions that had to be settled , both those concerning the laws dealing with the famil y and with inheritance and th ose concerning obl igation. Rome had found in the East a highly developed Hellen istic law, which , in the Cities, served as the ru le for judicial practice, and a wel l perfected system of compu lsory registration of deeds in the official an d carefully kept arch ives xpr,µaTUl'T*pia. It is still a matter of controversy how far Roman civil law , whi c, h in theory applied to all citizens, was substitu ted for the Hellenistic law that was a legacy from the Seleucid monarchy, and how far the latter was modi fied by it or whether on th e con trary the latter modi fied the former . . . . In Law then there was give and take between Rome and Syria. " (cf. Cambridge A ncien,t History, XI 1 936, pp. 626-62 7 . 1 s° For the extensive acquaintance of the rabbis with th e Roman institutions of public law, cf. Rapoport l'''O 7 1 :., Prague 1 8 5 2 , ::\1 . Sachs, Beitrage zur

LAW O F PERSONS

1 57

course on both sides, even in classical times that the present state of research has as yet not revealed . The influence was subtle and indirect but none the less real . The rabbis were living in no intellectual ghetto , and were susceptible to the ideas current in the Greco-Roman world . The numerous discussions between the J ewish and Roman sages recorded in the Talmud , 1 s 1 are evidence of a great deal of intellectual rel ations between learned Jews and pagans,1 5 2 which must have had a sdmulating effect upon their j uridical thinking r 53 along lines that represented a departure that has as yet not been delineated . Sprach- und A lterthumsforschung , vol . 1-1 1 , Berl in 1 852- 1 85 4 ; J . Furst, Glossarium Graeco- Hebraeum oder der Griechische Wiirterschatz der Judischen Midraschwerke. Ein Beitrag zur Kultur- und A ltertumskunde. Strassburg, 1890 (cf. review by Steinschneider. Deutsche Literaturzeitung, 1892, and R E J, XX I . 307, XX I I I . 1 29, 1 5 1 . ) ; Ziegler, Die Konigsgleichnisse des Midrasch) beleuchtet durch die romische Kaiserzeit, B reslau , 1903 (cf. Z.j.H.B . VI I . 1 7 ; and Lieberman , " Roman Legal I nstitu tions i n Early Rabbinics and i n the Acta Martyrum" in JQR , N. S. XXXV. 19-l-l, pp. 1 -5 7 . 1 1 s Hellenistic Roman in fluence u pon Judaism i n prac tically every area of thought is almost universall y admitted by the a u thorities in this field . To mention a few ; Freudenthal, Hellenistische Studien ; Joel , Blicke in die Reli­ gionsgeschichte ; Bergmann, Judische A pologetik im Neutestamentlichen Zeit ­ alter ; and Lieberman, Greek in Jewish Palestine. 1 s• Several distingu ished scholars such as M it teis (Reichsrecht und Volks­ recht, 1 89 1 , p. 1 94) , Kruger (Quellen und Geschichte des rom ischen Rechts, 2nd ed . , p. 1 5 3 and 393 note 7) , and Kub l er (Pauly Wissowa Real-Encyclo­ padie, vol . IA p. 398, and Geschichte des Romischen R.echts, Leipzig 1 9 2 5 , p. 426, note 1 2 ) , assert that there was a school of Roman Law in Caesarea in Palestine since the third century. If it were so, it wou l d explain the famil iarity of the rabbis with Roman Law. But there seems to be here a pal pable confusion with Beirut, for Kubler 's reference to Gregory Thaumatu rgus, Panegyricus in Originem 5 (ed.- Koetschau , Leipzig 1 894, p . 1 3 ) makes no mention of Caesarea but only of Beiru t. For J ews in Beirut, cf. Schurer, Geschichte, I (4th ed . ) , p . 39 1 , 560, 5 9 0 a n d J uster, Les Juifs dans l'Empire Romain I , 1 9 , note 4. t53 The rabbis were fully conversant with the Volksrecht of the empire not merely ou t of pure curiosity, but for prac tical reasons, e . g. in order to be able to try a case where one of the parties to the dispu te \\.- as a Gen tile (cf. B. K. 1 1 3 b ; Sifre Deut. 16 (ed . Finkelstein, pp. 26-2 7 ) , or to adj udicate an action where both parties, being non Jewish, submitted vol u ntarily to the j urisdic tion of a Jewish court, cf. T. B . K. IV, 2 ; Yer. B. K. IV.3 ; .Mekilta, Mish patim (ed. Lauterbach ) 1 1 1 , 2 . Concerning the j u risdiction of J ewish courts in the early centuries of the Christian era, cf. 1'1. G. JV. J. , I , 245 ; Casse l , Juden-

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Henri , Berr r 54 has called .attention to the enormous influence exercised by great individuals upon the development of Roman Law . It was they who transformed the Law of Custom into a Science of Law. The magistrates at Rome formulated , adapted , corrected , extended and interpreted the Laws. The j urists or­ ganized and classified the means by which every legal problem could be brought to a sol ution . This applies with equal force to the Tannaim and Amoraini who were both magistrates and j u rists . I t was they who expounded , expanded and transmuted the Pentateuchal law into a theoretical and applied science of · law . I t may be truly said of the rabbis of the Talmud , that they resembled " the Roman j urists who were admirable casuists and admittec neither a priori theses nor cumbersome generalizations , relying on their subtle genius to discover in each case the ade­ quate or, as they called it, the 'elegans' solution . " 1 5 5

gcschichte, p. 5, note 54 ; Boaz Cohen , in R E J, 92 ( 1 9 .3 2 ) , pp. 1 5 7 - 1 5 8 and

J. Q. R. , >i. S., 34 ( 1 944) , p . 4 1 7 ; and the la test d i scu ssion by L. Wenger in

.:lfiscellanea Giovanni �lfercati, V, 1 94 6 , p. 5 73 ff . The statement of R. Tarfo n , tha t it is prohibited t o su bmit t o th e j ur isdiction of Gentile courts n , � • , m: ::i • i :, J � ti) even when their decisions coincid e with tha t of J ewish law, i n d icates his awareness of the simi larities between J ewish and n o n -J ewish l a w in c : vi l matters. (Git. 88b) F o r r11' ill� = a"(op o., meaning cou rt of j u s tice, c f . c\cts 1 6 . 1 9 and Foakes Jackson and Lake, The Beginnings of Chr istianity, I , p . 1 94. 1 s4 Cf . his foreword to Declareuil , Rome the Law-Chier, New York, 1 92 6 , p . XIV. 1 5 5 Cf. Declareuil . Le Quatricme Cent enaire de Cujas , 19 2 2 , p . 9 , cf. also th e remark of I hering " Man preist den Sch arfsinn u n cl die Consequcnz dcr rom­ ischen J u risten, aber damit ist ga r wenig gewonnen . Dieselbe Eig-en schaft findet sich in nich t minderm Grade, viellei c h t mit ei ner noch sch arfcren Spitze i n der talmu dischen J ur i spruden z . " (Geist des romischen Rechts, I , 4th ed. , Leipsic , 1 87 8 , p . 1 7 . )

CIVIL BONDAGE IN J E WISH AND ROMAN LAW

¼rhile the ancient Romans were cognizant of the fact that parallels to some of their l egal insti tutions existed among the laws of other peoples , yet they were rarely impel1ed to take note of them , if one may concl ude from the scant alJusions to them in their extan t j u ridical wri tings. The references by Gai us to the analogy to the patria potestas among the Galatian s, and to the laws of guardian ship among the Bithynians (Institutes I. 5 5 , 1 93 ) are ,d ismissed by some scholars as a gloss. r The Jews , because of their exal ted conception of the origin of their law, had even less occasion to pay attention to correspondences or contrasts between their statutes and enactments and those of their neighbors. Nevertheless, instances of such compari3ons are preserved in the old' sources. The M ish n ah {Sanhedrin VI I . 3 ) speaks explicitly of the resemblance between J ewish and Roman methods of beheading criminals. 2 Some Palestin ian Amoraim remarked on the divergence between J ewish and Roman rules on sale in connection with their interpretation 1

Cf. F. Sch u l z , Principles of Ronvin L'lw , Oxford 1 93 6 , p. 3 3 note S , R . Tau ben schla g , The L 'l w of Greco-Rom1n Egypt i n the Light of the Pupyri, New York , pp 9 7-98 , E. Vol terra , D iritta Rom zno e D iritto 01i:m t .ili, B J l o 6 n a 1 93 7 , p. 1 3 6 , b u t cf. als::> M u irhead , Historie1,l Intro:iuction to the Prii•1te L iw of Rome, Lon don 1 9 1 6 , p . 2 5 note 1 3 , and S. Pcr.:izzi , IstituJioni di D iritto Rom1no I , Rome 1 92 8 , p . 5 1 0 note 1 . � Cf. Ul p ian D . 48. 1 9 . 8 . 1 Vita adimitur , u t p u ta s i damnat u r a l i q u is , u t g l a d io i n eum animadvertitur , s::!d anim adverti g ladio o p ortet , non sec u r i ve l t e l o fust i v e l l a q u eo vel q uo a l i o m o d o . For the use of an ima dvertere i n connection w i t h a d eath s�ntence c f . Momms�n , Str Jjrecht, p. 9 1 1 . O th er references to t !1e Roman p ract ice are cited b y Str:ick , S mhedrin- 1lf1 kkoth, Lei p zi g 1 9 1 0 , pp . 23-24 , Krauss , Mishnah Sa 1 hedrin- Ma ikoth ( e d . Beer ) , Giess�n 1933 , p p . 2 1 3-2 1 4 , and Lieberman , J . Q . R . N . S . XX XV, 1 944 , p. 3 7 note 243 .

1 59

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of the law concerning the fi rst born of an an imal pu rchased by a Jew from a Gen tile (Bekorot 1 3 a) . However, i t is only in modern times, that more determined e fforts were made to ex­ plore the relations between J ewish and Roman law , as a con ­ sequence of a growing sen se of the sign ifi cance of the stud y of comparative law. 3 I n the present essay , we mean to d iscuss only those aspects of the institution of civil bondage among the J ews and the Romans, which a rc instructive either for their resemblances or their con trasts. To forestall misapprehension , may I indicate , at the very inception of this study, the specia l sense in which bondage is used here in opposit ion to slavery. A bondman is a legal person capable of rights and obligations but bourid by law to render service to another, whereas a slave is the absol ute property of the master, possessed as chattel , or owned as a thing. Bondage may subsist under many forms , 4 the chief difference between slavery, pure and proper, and bondage, consists in the status, t reatmen t, and duration of service . Slavery and bondage are found in many l egal syste ms, 5 and have even existed side by sid e from time immemorial . When serfdom was fi rst establ ished in the feudal era, the two types of servitude co-existed in every part of Europe , al though subsequen tly bondage· �as the only type of servi tude known , u n til negro chattel slave ry was intro­ d uced in the sixteenth century. Under the English l aw the vil lein was a lega l person possessing certain l egal righ ts , no matter what the services were that he rendered . I n the Ameri can colonies too , the white persons who were subj ected to involun tary service for years also possessed legal rights and were d is tinct from slaves. C f . B o a z Cohen , The Relationship of Jewish to Roman Law J . Q . R . N. S. ( 1 94-.!) 2 6 7-280, 409�424, and Vol terra, Diritto Romano, p. et seq . , p. 2 5 5 et seq . 4 Cf. also index s . v. Bondage and Slavery i n Rostovtzeff, Sociat and Econ­ omic History of the Hellenistic World, Oxford 194 1 . 5 I n many Greek states a form o f bondage existed which was sharpl y dis­ tinguished i n law from domestic slavery, cf. G. R. Morrow, Plato's Law of Slavery in its Relation to Greek Law, Urbana 1933 p. 1 9 ff. 3

·xxx1v

17

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161

I n the ancient Hebrew polity, the difference between slavery and bondage was clearly established . For foreigners only could be p ressed in to service as slaves (Lev. 2 5 :46) , whereas Hebrews were held as bondmen (Lev. 25 :39 et seq . ) . Similarly, in the Roman lega l system , slavery was marked off from bondage. According to the Roman conception , slavery was an institution of jus Gentium ( C aius, Institutes I . 5 2 ) whereas bondage was d erived from the · ancient jus civile. The notion that slavery was a Jus Gentium wou ld have been repudiated by Resh Lakish who espoused the view that Gen tiles were in terdicted from hold ing slaves by Scrip tural Lav.·. 6 The rabbis, who d rew a sh arp d istinction between a Hebrew bond man and a foreign slave were astonish ed t h at the Pen tateuch design ated the former also by the te rm i.JV . A s we read in the Jf ekilta : 7 mnpn �N iN ,:iv i.Jl,' im-tip i1iim, m i:, �Y , ,:iy ,.:iy i1Jpn ,:, � ·n p,r:i c::mzh i.Jl,' . Simil arly, the type of Roman bo n d man , who was d escribed as a person in mancipio , was frequ ently referred to by Gaius as being in servi loco. 8 There was a controversy among the Tan naim \vhethcr a proselyte could be ad m i t ted to the status of a bondman on the sam e terms as a H ebrc w . 9 Among the Romans .ordin arily on l y a Roman citizen was capable of becom i n g­ a bondman b u t a Roman historian reports that i n t h e 6th cen­ tury A. U . C. the Latins were accustomed to give their chi l d ren to Roman citizens in mancip£mn i n ord er to become ci'i.Jes rom.ani 6 Cf. Lev . 2 5 :45 ;i,:, N1 1:JY 1ipn Oi'l!.J which he i n terpreted to mea n O'll p o n �,, nro nr which wa s fu rther elabora t ed t o sign ify 1 :l1 l ? ;irr., iH o•i1 p o;i �,, (Git 3 8a ) . Cf. a l so Esther Rabba h ;,n•m, 3 . 1 Ed . Lau terbach I I I , 4 , cf. also t h e j udiciou s remarks o n t h i s pa ssage by Prof. Lieberman in , :i o n • , p X I I . 63-64. 8 Cf. Cu q , Afa nuel des Institutions Juridiques des Roma ins, Pa ris 1 9 1 7 , p. 84 note 3 , and P. Bon fa n ty , Corso d·i D z'.ritto Romano, I, Rome 1925 , p. 137 n o te 5. 9 Cf. Mekilta e d . Horovi tz, p. 248, ed . Friedmann, f. 75a a n d B . lVl . 7 1 a . According to the Tan naim, a h ermaphrod ite cou ld not become a bond m a n c f . T. B i k . I I , 7 . I n Roman law, t h e ru les concern i n g the hermaphrod ite are extremely scantj.,. As a gen e ral i:;rinciple the h e rma p h rodite wa s con sidued to be male or female, in acco rdance with the sex that predominated in it (Diiest 1, 5 . 1 0) . This test was applied with respect to his quali fications to testify in case of a will (Digest 20, 5 . 1 5 . 1 ) , and . h i s powe r to appoin t a pos t­ humous heir (Digest 28, 2 . 6.2) .

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when they were liberated .Io Consequen tly esse in mancipio was not only a Roman rule but also a Latin privilege. In Jewish law, no J ew could ever be red uced to a mere slave , no matter how long his ten ure I I and no matter wh at crimes he committed ,12 whereas among the Romans a citizen could become a slave not only as a resul t of being ca ptured but al so for violating certain laws,13 in which case h e wou ld have to be sold abroad . I 4 In Roman j u risprudence the slave was denominated servus ,1 5 whereas persons who were held in civil bondage had no partic­ ular designation. 16 In early Roman law, the commission of a theft , insolvency in debt, and . the entrance into the status of esse in mancipio created the condition of civil bondage . Thus in the X I I Tables 1 7 we read " B ut in the case of all the thieves caught in the act , the B oard of Ten ordained that, if they were l1ond men , they Liberos suos q u i busq uibus Romanis in earn condicionem ut manumi t­ tere n tur manci pio dabant libertinique cives essent, Livy 4 1 .8. 1 0, cf. also Schmidt, Das Hauskind in Mancipt'.o, Leipzig 1 879, p. 3 and Kniep, Gai Institutionum Cmnmentarius I Jena 1 9 1 1 , p. 1 87 . n Accord i n g t o Ex. 2 2 :6 t h e l/�il 1::ll/ was t o serve h i s master forever but the later authorities u n d erstood the verse to refer to the J u b ilee . Cf. M . Kid . I . 2 and Josephu s Ant . 4, 8, 2 8 . I n Egypt , various forms of bondage were trans­ formed by certain private transactions into regu lar slavery, cf. Rostovtzeff, Soci1l and Economic History, vol . I I I , p. 1394, note 1 1 9 . 12 In later times a question was asked whether a J ew, who bought a Jewish captive, could sel l h im to some one else as a Gentile slave, cf. Responsa of Duran r�rvn I I . 2 7 and Samuel Gaon c•,rv• c•i:,Dwz, Salonica 1 733 no. 50. �J Cf. Buckland , Roman Law of Slavery, Cambridge 1908, p. 40 1 ff. ; for the sale into slavery in Greek law as a punishment for certain offenses, cf. G. R. Morrow, Pla to's D:rw of Slavery, p. 23 note 2 1 . r4 Whether a Roman citizen cou ld be sold as· a slave i n Rome i n ancient times is a moot point, cf. B uckland , Textbook of Rom:in Law, Cambridge· 1932 , p. 620, note 4, J . El l u l , Etude sur l 'Evolution et la nature Juridique du Ma ncipium, clordeaux 1 936, p . 9 1 , and Levy-Bruh! , Quelques Problemes du lres ancien Droit Romain , Paris 193 4 , p . 2 1 ff. and Roby, Roman Pri7.!ate Law, Cambridge, 1902, vol . I I , 428, note 2. rs For the nomenclature concerning slaves, cf. Buckland , Slavery, pp. 8-9. 16 Cuq , Manuel, p. 8 4 note 3 . 1 In this essay, the Loeb classics edition o f the 1 2 tables edited b y Warming­ ton is always u sed . Prof. Adolph Berger in his length y article s. v. Tabula i n Pauly-Wissowa, Real-Encyclopadie published in 1 932 gives a thorough •

0

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should be flogged and adjudged to the person against whom the theft had been committed , provided the malefactors had com­ mitted it by day and had not defended themselves with a weapon. " 18 I t is not quite clear whether the thief became a slave in some manner or was in the position of an adiucatus who had been seized by a creditor by manus iniectio. In a.ncien t Hebrew sources we find that a convicted thief who did not have the means to make restitution, was sold in to bondage (Ex. 22 :2) . In connection with this law, Josephus 1 1> writes "Let him who has stolen cattle pay fourfold , and fivefold for an ox. If he is too poor to pay the fine20 imposed upon him , let him be a servant to whom he was adj udged to pay. " Since neither Scriptures nor the rabbis give the slightest hint that the thief is to be, delivered to the victim of his crime, it is very plausible that . Josephus is interpreting Jewish law in order to bring it into harmony with the Roman rule j ust cited. The statement of Josephus that the thief is to be sold , if he cannot pay the fine, is · at variance with the Halakah which declared 1?'!>�:i �,, ,n:m:i . Again J osephus21 observes that King Herod 's enactment that · housebreakers22 (ro,xwpvxo,) be ej ected out analysis of the various rules in the Twelve Tables with full citations to the latest literature on the subject. 18 VI I I . 14, p . 485. Ex ceteris autem manifestis furibus liberos verberari addicique iusserunt ei cui furtum factum est si modo id luc i fecissent neque se telo defendissent, cf. also Gaius, Institutes I I I . 1 89, Ellul, Etude sur Man­ cipium, p. 70. 1 9 Ant 4.8.27. 2 ° Kid. 1 8a, cf. also \Vey!, Die judischen Strafgesetze bei Flavius Josephus, Berlin 1900, p. 1 2 1 note 16. Philo, however, agrees with Josephus on this point, cf. Spec. Leg. IV (Heiheman's translation I I . 249). 21 A nt. 16. 1 . 1 cf. also Olitzki, Der juedische Sklave n:1ch Josephus und der Halachah, Magazin fur die Wissenschaft des Judentums VI 1889, p. 75. 23 Cf. Gulak, ,m'7p 1 !> 0 , Tel Aviv 1937, p . . 132-135. The term TOLXWPVX.OS while it appears in Plato's Laws 83 1e does not seem to be used in the papyri since it is not recorded by Preisigke in his Worterbuch or Taubenschlag in his Greco-Roman Law. Cf. Bonner and Smith, The A dministration of Justice from Homer to A ristotle, Chicago, 1 908, I I 285. According to the Syrian Roman Law-book, . a house-breaker is liable to one of three punishments, death, exile, or payment of damages, according to what he deserves; cf. Bruns and Sachau, Syrisch-Roemisches Rechtsbuch, Leipzig, 1880 . (A rahir- vPri:1ion

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of his kingdom and sold as slaves to foreigners is n ot in con ­ sonance with Jewish law wh ich ordained " th a t t h e th ief sha l l restore fo urfold (he'XEVO'V ,y ap o( 110µ0, TE'rp a1r'X aJ 1.:)r, and appealed to R. Ami to redeem him, the rabbi was inclined to heed him, but was cautioned against it, because the man was an apostate7s (,o,wo ) . In another case , a J ew who sol,d himself to be a gladiator was helped by R. Abbahu to gain his freedom, because the rabbi had learned that the man took this step ou t of dire necessity7 6 ;,ws, ,,,n 'J!>O . Neither could a woman sell herself77 or her daughter78 into bondage, nor could she pos­ sess a Hebrew bondman. 19 13 Cf. Kidushin l. c., for: a similar rule in Roman Law concerning the son , cf. above note 60. 74 M. Git. IV. 9. The children were to tie redeemed after their father 's c.lemise. 15 Git. 46b-47a , cf. also Jastrow, REJ, XVI I ( 1 888) , pp. 308-3 10. 16 Yer. Git. IV, 9 . The Palestinian Amoraim qual ify the Mishnah by remark­ ing that if a person sold h imself only once he may be redeemed but if he sold himself as a glad iator even once, he may not be redeemed, c,,,,, 10:!.l) i:,o CNl imN J'11D J'N nnN DVD l?'DN. The Romans shared with the Palestinians their odium for the glad iators. In Roman law hired glad iators (auctorati) were held in l ight esteem. Accord ing to one source they may not give evidence i n a law suit ( CoUatio 9, 2 . 2 ) , for other disquali fica tions of auctorati in Roman Law, cf. Cuq. Manuet, p. 85-86, and Girard , Manuel, p. 1 36-1 07. Prof. Lieberman called my atte a tion to Fuerst, Glossa.rium Graeco-Hebraeum, Strassbu rg 1 890, p. 1 3 1 s. v. ,,,, who noted the parallel between the state­ men t 'P'l'l"i iltul)) ,,,, J'N, Beresh ith Rabba 96 (ed . Theodor-A!beck 1 200) and Leges Sccul p. 1 96. The latter was republ ished i n Bruns and Sachau, Syrisch­ Roemisches Rechtsbuch , Leipzig 1 880, Syriac text, p. 7, cf. also the note by Bru n s p. 1 90. Gladia torial con tests were prohibited by Constan tine in 325 C. E., cf. Code 1 1 , 43 ; 1 . Cf. Hohen lohe, Einftuss des Christentums auf das Corpus Juris Ci11ilis, p. 53. I n old Spanish Law a· person who figh ts wi th a wild beast for a reward can not act as an advocate for another except i n special cases. Las Siete Partidas I I I , 6 :4 . 11 Mekilta, ed . Horovi tz , p. 2 5 5 . 7 6 C f . Mek-ilta, I . c. , and M . Sotah i l l , 8. 1 9 Cf. Baba Me�ia, 7 1a .

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\iVi th regard to the legal status of the Hebrew bondIW;tn during his period of service, there are scant hints in the early sources. In five instances the Tannaim imply that the legal relation between the bondman and his master resembles the situation between adult children and their father, in contrast to the relation existing between minor children and their father or Gentile slaves and their master. 80 The bondman could own property 81 and to all intents and purposes he enj oyed all the privileges of a free person , with the exception that he could marry a Canaanite bondwoman , 82 or a woman half-S!lave. 82a The Hebrew bondman was not owned by his master. 83 Accord­ ingly a man may not slaughter a paschal lamb for his Hebrew bondman without his consent. 84 A man may deposit an article of food through the agency of his bondman to establish a ficti­ tious partnership with his neighbor in order to be able to carry from his courtyard into the alley on the Sabbath , which he could not do through a Gentile slave. 85 Similarly a man , in collusion with his bondman , may evade the payment of the added Fifth when redeeming the Second Tithe, which he would not be allowed to accomplish with a Gentile slave. 86 If a man wounded a Hebrew bondman , he was liable on all the counts, excepting loss of time, i f it was his own slave.87 If his eye or tooth were knocked out ao M . Maaser Sheni IV, 4, Erubin V I I , 6, Baba Me�ia I, 5, Arakin VI I I , 4-5 . T. Pesahim VI I , 4. 81 Cf. Lev. 2 5 :49. Th ings found by a bondman belonged to him. M. B. M. I, 5 , 82 Cf. Kid. 14b, and Ginzberg I. c. p. _99 ff., note also the inference from the baraita Kid . 15a i!', ,',;:i 1•::i 0,,::1 1•::i ,::i, v •i::iv ,::iv . The statement of Raba ( Kid. 16a and parallels) •up um •i::iv i::111 is at variance with the Tannaitic conception of Hebrew bondage, cf. also Tos. Kid . 1 9a s. v. n,', 0::i who remarks pip,', ', •l •ilp 1Dtl l'N • ,::iv ,::iv , i!'tli!' ,·::i •oi• • , ,::iop,, cf. also Kahn, 1. c., p. 80, note - 1 , and Winter , p . 1 5 , note 4, p. 16, note 1 . Baa Cf. Keritot 1 1 a , a n d Sifra t o Lev. 19 :20. ed . Weiss, f . 89c. 83 As is evident from M. Arakin VI I I , 5 Cl'N c•i::i!,li! uinDrv1 ,,::iv • • • c• ,n on , , 111 1l'NW c•,n,.) ciN l 'NW 1'0,n,0. 84 T. Pes. VI I , 4. as M. Erubin VI I , 6. 86 M . Maaser Sheni IV, 4. s1 M . Baba Kamma VI I I , 3 . T. B. K. IX, 2 1 .

,::i,

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by hi!; master, he recovered the damages but served out his term , unlike the Gentile slave. 88 In Rqman la.w the status of a person held in mancipio8 9 was inferior and much more complicated than the Hebrew bond­ man 's. The former suffered a loss of civil status known as capf,tis deminutio minima90 (Gaius I , 1 62) but was capable of civil wedlock although the patria potestas was ip. abeyance (Gaius I , 1 35) ; with regard to the children born in mancipio, the law underwent a chc).nge. According to the earlier rule, the children were also in servitude, but in later law, if born after the first mancipation they were in a state .of suspense. 9 1 The person in mancipio was assimilated to a slave (servi loco est) in certain respects and accordingly suffered the same dis­ advantages, although he was not .considered to be in the pos­ session of his master. 92 He could not acquire anything by in jure cessio (Gaius I I , 96) , nor make any valid stipulation (Gaius . I I I , 1 04) , nor be an adstipulator (Gaius I I I , 1 14) , nor take as heir or legatee under the will of the person to whom he is man­ cipated unless he is enfranchised by such will 93 (Gaius I, 1 23) , but he could be a necessarius heres (Gaius I I , 1 60) , and was released from bondage in the same manner as a slave (Gaius I, 138-1 39) . Because of the Roman concept of agency whereby a person could act as a representative of another person only 88 Cf. Mekilta, o•�DWTJ, ed. Horovitz, p. 256-257, Kiddushin 1 6a and Geiger, Urschrift, Breslau 1857, p. 1 87. 89 For the difference between in mancipio esse and in causa mancipii cf. Steinwenter in Pauly Wissowa, Re1 l-En cyclopaedie 1 vol . XIV, col . 1011, Desserteaux, Capitis Deminutio I, 245 and Ellul, Etude sur le Mancipium p. 86, note. 90 Cf. Desserteaux I. c., vol. I, 40, and Ellul, p. 85 et seq. 9 1 Cf. Cuq, Manu �l des institutions Juridi1,ues des Rom1ins 1 p. 84, Kniep, Gai Institutionum Commentarius I, p. 233-235 . 92 Gaius I I , 90 quia ipsas non possidemus. For the complex doctrine of possession in Roman law, cf. Dernburg, System des Roemischen Rechts, Berlin I (8th ed. ) , 2 9 1 et seq. Girard, Manuel de Droit Rom1in 1 p. 2 78 et seq . Sohm­ Mitteis-Wenger, Geschichte und System des Roemischen Privatrechts, M iinchen . 1924, p. 268 ff. and Perozzi , Istituzion e di Diritto Romano I , 842 et seq. 93 Cf. the Talmudic statement ,m�:> ,, J'N::l ,,,, ,�l, Kiddushin 23a.

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if he was in inferior status to his principal ;94 for example, if he were his slave, or was subject to his potestas, manus, or manci­ pium (Gaius I I , 95) the person in mancipio, unlike a free per­ son, 95 could acquire for his master. Yet it was only ownership (proprietas) 9 6 that he could obtain for his master, ·but it was doubtful whether he · could procure possession97 for him. Obliga­ tions could be assumed by the per,5on in bondage (Gaius I I I , 1 63) and he could be sued for inherited debts l ike a woman going into manus9 8 (Gaius IV, 80) . An action for inj ury will be avail­ able for dishonorable treatment for a person in mancipio (Gaius I , 1 4 1 ) which wilI not lie with regard to a slave (Gaius IV, 80) . With respect to the treatment of a person in bondage, we read in the rabbinic sources, that he is not required to perform the menial services that devolve upon a slave, 99 although he was obliged to work longer than a hired person. 1 00 It was the duty of the master to furnish him with the same kind of food that he partook of, and to grant him sleeping quarters as com­ fortable as he enjoyed. 101 Philo remarks that the Hebrew legisla­ tion concerning the Hebrew bondman breathes kindness and humanity throughout. 103 �µEpOT'f}S Ka l cf,iX.av0pw1r,a. \Vhile 94 For the R0man Law of agency, cf. M itteis, Roemisches Privatrecht, p. 203 ff. , and Sohm- M itteis-Wenger, Geschichte und System des Roemischen Privatrechts, p. 244 ff. 9s Cf. Digest 45 . 1 . 126.2, per liberam personam nobis adqu iri nihil potest. Cf. Soh m-M itteis-\Venger, I. c . , p. 245. 96 For proprietas = domin ium cf. Dernburg, I . c., p. 3 19 et seq . , and also Digest 22, 1 .38. 10. Si possessicpem naturalem revocem , proprietas mea manet, videamus de fructibus et q uidem in deposito et commodoto fructus q uoque praestandi sunt, sicut diximus. 97 Cf. Gaiu s I I , 90. An autem possessio adquiratur, quaeri solet, cf. also Gaius I I I , 103 and Digest 4 1 . 1 .53. 98 Cf. for this passage, Desserteaux Capitis Deminutio I , 2 7 1 et seq . , Buck­ land , Textbook on Roman Law, p. 399, note 10, and Sch lesinger, Zeitschrijt . fuer Rechtsgeschichte VI I I , 50. 99 MekiUa (ed . Friedmann ) , f. 7 5a-b . IOO Cf. the baraita Kidd ushin 15a, N? N ,:ny U'N i•.:,111 ,,:iv ,•�,iv ,::nv i1JIV!) •:, ;i,,,::i 1•::ii oi•::i 1•::i ,::i,v •i::iv ,:iv 01'::i, Sifre, Deut. 1 23 (ed . Finkelstein , p. 1 8 1 ) and Yer. Kid. 59d. 10 1 Kiddushin 20a. 102 Spec. Leg. II, 79. Th e word humanitas is an original Roman creation

CIVIL BONDAGE IN J EWISH - AN D ROM AN LAW

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the consequences of the conception of humanity on Roman legal theory and practice were far reaching,. it was not overly displayed with respect to the person in mancipio and it was only in later times that more humane treatment was accorded to him by law. 1 03 With regard to the release from bondage, Jewish law provided that a Hebrew servant gained h is freedom by the completion of six years of service, with the coming of the J ubilee year, by self-redemption 104 and by a writ,1°5 in contrast to a Gentile slave who was manumitted as a result of money being paid to the master,1°6 by a writ,1°7 or as a consequence of suffering damage to the principal parts of ·h is body at. the hand of his master. 1 0 8 In Roman law the individual in mancipio was released from servitude by any of the ways in which a slave was manumitted , by testament,1°9 the vindicta no and the census m (Gaius I , 1 38) , Jhering was originally of the view, which he subsequently modi­ fied, ·that all persons in bondage, except those subjected to it and When David prayed "Teach me thy statutes 7•ph •J-,1:)� (Ps. 1 19.68) and I will occupy myself with thy statutes continually -,•l:)n 7•pn:1 i1S,IIIN1 (Ps. 1 19. 1 1 7) he was invoking divine aid, among other things - so the rabbis tell us - to be spared the embarrassment of being unable to answer effectively arguments pertaining to J ewish law in disp utes with Gentiles. yi�il 'l:11:) 'll?�111• �l:)fV ,� Ci1'l'V? rtJ1:l •n��l:)ll C:l'rtJi1? 'l'Nl ill:)"!Nil nim>llll:)1:)1, Sifre Num. 1 1 9, ed. Horo­ witz, p .. 143. It is needless to point out that this is a literary arti fice used to project into the past, . conditions contemporary with the preachers, in this case, most likely it is the first or second century C. E. 1 ° Cf. Voigt, Jus Naturale, II, Leipzig 1858, p. 784, note 886a. Es kann nach

v,,,

A lie dem irgend welchen Zweifel nicht unterliegen , dass ein des Hebriiischen kundiger Jurist aus der Mischnah wertvolles Material fiir das romische Privat­ recht gewinnen kann, ja die eigene Durchsicht der Uebersetzung des Surenhusius Juhrt darauf hin , dass bei A bfassung der Mischnah die Werke von Pandecten­ juristen benutzt wurden. 11 Cf. Buckland, Harvard Law Review, 54 ( 194 1), p. 1 275. Koschaker, Europa itnd das Romisclie Recht, p. 79, note 3 , Wenger, in Osterr. Zeitschrift fur ojfentliches Recht, vol. I , ( 1947) , 241-253 and D 'Entreves, Natural Law ,

1951 , p. 1 7 .

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tudes of peculium 12 in Jewish and Roman Law. The term peculium1 3 is derived from pecus , cattle as in early times prop­ erty primarily consisted of live stock. Similarly, fee , in English feudal law, which designates an estate in land is derived from the Old High German Jehu,14 signifying property in the shape of animals. The modern German equivalent is Vieh. The etymology1 5 of the term sets forth the root upon which the word is formed , which in this case , is something concrete , as cattle. 16 A hasty review of the use of the word in literary sources and j uridical texts , will reveal that the word has. assumed a more abstract significance , such as property in general with a variety of nuances. The different factors which bring about a change in the original content of words, are well known to the students of language. 1 1 With regard to the term peculiitm , the 12 For the literature on Peculium in Roman Law, cf. W. von Uxkull in Pauly-Wissowa, 19 ( 1 938), pp. 1 3-16. Later literature - is cited in the course of this article. For the latest discussion of PecuUum, cf. E. Balogh , A daptation of Law to Economic Conditions according to Roman Law in A tti del Congresso lnternazionale di Diritto Romano e di Storia del Diritto, Vol. I I , M ilano 1 95 1 , p . 269 et seq . 1 J Cf; Micolier, Pecule et capacite Patrimoniale, Lyon 1 932, p. 65, note 46. 14 Grimm , Deutsche Rechtsalterthiimer, Leipzig, 1 899, 4th ed. , vol. I I , 98-99 . . 1 s C icero observes that many arguments are developed from . a word by etymology. Multa igitur in disputando notatione eliciuntur ex verbo ( Topica V I I I .3�) . Quintilian tells us, that etymology is of the utmost use, whenever the word under discussion needs interpretation . Haec habet aliquando usum

n ecessarium, quotiens interpretation e res, de qua quaeritur, eget (Institutio Oratoria I . 6, 28) . Cf. also E. R. Curti us, · Etymologie als Denkform, in his Europiiische Literatur und Lateinisches Mittelalter, Bern , 1 948; pp.· 488-492. 16 The English word cattle meant originally personal property and is synon­ ymous with chattel, with which it is cognate. Cattle signifying live stock, is its secondary meaning. Cattle is derived from capitalis. Capital is used in

medieval times in the sense of principal sum of money. Under the feudal system, the application was limited to movable property, and in �nglis� it was iden ti fied with "beast held in possession " which was its most frequent use after 1 500, cf. Oxford English Dictionary, I I , 1 89-1 90. Chaucer uses catel in the sense of property, and note that Purvey renders i1?llo in I Chron. 29.3 by my proper .catel. As for the H ebrew mpc meaning possessions and cattle, cf. Haupt, Hebraica I I I , 1 886, p. 1 09. ' 7 Cf. Whitney, Science of Language, pp. 76 ff. Breal, Essai de Semantique, pp. 106 ff.

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two leading rules which govern its change in meaning , are the principles of extension and restriction. The primitive or early significance of the word is stretched and expanded to embrace a larger scope of meaning and at times it is applied in a narrow sense , suffers a contraction in meaning and is confined to a specific or particular use. In tb.e literary contexts, peculium is employed in the e�­ tended sense of property in general. Thus a character in the comedy of Plautus is made to say "Even the shepherd that pastures other people's . sheep has some of his own : Etiam,

opilio qui pascit , mater, alienas ovis, aliquam habet peculiarem. 1 8

Note that in the Tal mud (B . M. Sb) the general principle , that a shepherd is disqual ified to act as witness ,,o!) ils,i, cno applies only to one who tends his own flocks. Perhaps peculiarem is introduced here with respect to sheep in a unconscious allusion to its primitive meaning. Cicero 1 9 too uses the term in its broad sense, when he says : Is there any doubt about the slavery of people, · who because of their covetousness for property (cupiditate peculii) 20 refuse no condition of the harshest servitude. Then too , peculium is employed in a more restricted sense , signifying money laid aside or saved up. The famous j urist Proculus21 reports that "he has heard folks of the country22 relate that money wi thout pfJculium is very easily lost, meaning by the term peculium what is put aside for safe keeping :

audisse se rusticos senes ita dicentes pecuniam sine peculio fragilem esse, peculium appellant6S, quod praesidii causa seponerretur. "

And Seneca2 3 uses the word much in the same way. In juridical contexts and sources the term peculium is further limited in its meaning , and primarily signifies the property of 18

Cf. Plautus, A sinoria, 1 1 1 . 1 , 539-540, ed. Loeb Classics, p. 180. Cf. Paradoxa Stoicorum, V.38, ed. Loeb Classics, p. 29 1 . There seems to be a play on peculium and slavery. 2 ° Cf. Sallust, Bellum Catalinae, X.3, who uses the phrase pecunio cupido. 21 Cf. D. 32. 1 . 79 . 1 . 22 This reminds one o f the case of a n aged moneylender, who lived i n a little village near Jerusalem, ·whose practice with regard to writing out bonds of indebtedness in his own hand became the acceptable practice, M. Eduyot I l .3. 21 Benef. V I I .4.4. 19

PECULIUM IN J EWISH AND ROMAN LAW

] 83

persons in potestas as that of a slave or chitd , 24 and ·this is its most usual meaning in legal· texts. Thus the slave Leonidas boasts as follows "And as for the money I have laid by, it can­ not be counted. Nee potest peculium enumerari. 25 And Ulpian lays down the rule : If a contract is made with a filius familias or a slave, who is under the age of puberty, the action on the peculium is given against the father or master, if the peculium of these persons has been enriched. 26 The term peculium as applied to the property of the son in potestas is further specialized in its meaning. What is given by the parents or relatives to one who is serving in the army, or a son under parental control has himself obtained while in the army is termed peculium castrensis. 21 The peculium quasi castrense was applied to earnings by certain public officers. Constantine decreed that all the Palatines shall hold as peculium castrense all the property which they acquired through their thrift or by donations from him (vel si parsimonia propria quaesierint vel donis nostris fuerint consecuti ut castrense peculium habere praecipimus. 28 Then , the property given by the father to his daughter, is known as peculium. Papinian reports the following · decision. A father who gave certain slaves to his daughter, who was under his control , and did not deprive her of her peculium, when he emancipated her, is held to have perfected the dona­ tion by his subsequent act. Pater; qui filiae, quam habuit in potestate, mancipio donavit, et peculium emancipatae non ademit, ex post facto donationem videbitur perfecisse. 29 We are here re­ minded of the rule in Ket. IX.9, which reads : If a father gave For they cannot really possess anything of their own, cf. Gaius I I .87, D. 41 . 1 . 10 ,pr. and the parallels in Mandry, Das gemeine Familien:guterrecht, Tiibingen, 187 1 , I , p. 6. 2 s Plautus, Asinoria, II .498, ed. Loeb Classics, p. 176. 26 D. 1 5. 1 . 1 .4. 2 1 Cf. D. 49. 1 7 . 1 1 . 2 8 Cf. C. 1 2.30. 1 , G. G. Archi, In Tema de peculio quasi castrensis in Studi Besti I , Milano 1 939, pp. 1 1 7-136, and Studia et Documenta Historiae et Juris VI, 1940, p. 199. 2 9 D. 39.5.3 1 .2. On this passage, cf. Berger, Seminar, vol. VII , 1949, p. 53, note 14 ; cf. also Frag. Vat. 255. 24

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J EW ISH A N D RO M A N LAW

his son , who is a minor, in marriage, the marriage settlement is legal MO"i' i7n:i,n:, since on this tondition he kept her as his w ife , i70, , i' p mo �yrv that is to say she is en ti tled to her mar­ riage settlement, if she is divorced after the husband became of age and had consummated the marriage �'1Ji7WO i7' � Y �:::itv .3° Again it is from fapinian that we learn that property given to the husband in the name of his wife which was not part of the dowry was also designated as pe.culium . . Spedes extra dotem matre fi.liae nomine viro . . . sed peculium a dote distinguetur.31 The h istorian Sueto nius3 2 relates that the Emperor Tiberi us deprived h is wife Julia of the peculium granted her . by her father , and of her yearly allowance under the color of the ob­ servance of the ius publicum, 33 since Augustus made no provi­ sion for these in his will. Ulpian34 has . preserved the following bit of information , namely, that the Gauls designate the parapherna as peculium. Ceterum si .res dentur in ea, quae Graeci 1rap aq,epva dicunt quae­ que Galli peculium appellant. Now in Roman law , parapherna, Js Cf. Yer. Ket. IX. 10, and 1:iip ,,,w ad loc. , T. Ket. IX. 7, p. 2 7 2 , cf. D . 23.3.24, dowry out o f peculium. For the phrase i17.J" P�. cf. M . Ket. I I I . 5 , and V I I . 2 , 4. For the betrothal of mi riors, cf. also S. Bialoblocki, Materialien zum islamischen , und judischen Eherecht, Giessen , 1928, pp. 30-33. 3x D . 39.5. 3 1 . 1 , cf. Frag. Vat. 254, and Pernice, Labeo, I, 380 ff. for Peculium and Dos. 3 2 Tiberius 50. 1 , sed et peculio concesso a patre praebitisque annuis fraudavit, Jo

per speciem publici iuris, quod nihil de his Aug1tstus testamento cavisset. JJ For the use of the term ius publicum here as common law, cf. l\fommse·n , Romisches Staatsrecht, I , 2nd ed. , Leipzig 1 8 76, p . 3 , note 1 , i n the sense of "das von der Gemeinde ausgehende Recht." 34 Cf. D. 23.3.9.3. On this passage, cf. Sohm- Mitteis-Wenger, Institutionen des Romischen Rechts, p . . 5 1 3 , note 2 , and Arangio- Ruiz, in Scritti Ferrini, Milan 1946, pp. 105-106, Perozzi, Scritti Giuridi"i, vol . I , Milano 1 948, p. 34. For the interpolations, cf. Levy and Rabel , Index Interpolationum, ad loc. , and Jors- K-unkel-Wenger, Romisches Recht, 3rd ed . , p. 283, note 3 .

. JS In Athenian law, this term does not occur, cf. Beauchet, I . 284, note 3 , and Lipsius, Das Attische Recht, p. 492 , note 7 8 . For the papyri, cf. Castelli, ! . '11"apa Oln, I I .94. 8 4 For the term plagiarium as a literary thief, cf. Martial , I . 53 .9. The Ancient Athenians had no notion of li terary property, cf. Beauchet, I l l , p. 3 , note 1 . According t o Roman Law, i f one wrote a poem, a history, or an oration on the paper or the parchment of another, it belonged to the owner of the paper. ( I nstitutes of J ustinian 2. 1 .33) but the law is silen·t with respect to property in productions of the mind. Cf. also H. L. Pinner, The World ll/ Books in Classical Antiquity, Leiden , 1 948, pp; 38-39. " Neither with us" writes Blackstone in England hath there been (tlll very lately) any final determination upon the right of authors at the common law". Commen­ taries on the Laws of England, London, 1 825, vol. 1 1 , 406, cf. also J ung, Law of Theft. I n Jewish law since the sixteenth century thet;e has been some protection to writers. Thus in the approbation ;,1.).:> 0i! to Elijah Levita's ,,n:i, ed. Rome, 1 5 1 8, there is a threat of excommunication, if any one would dare to reprint it within the next ten years, cf. Perles, Beitriige zur Geschichte der Hebriiischen und A ramiiisclten Studien, p. 202 , note 1 , and Jewish Encyclopedia, 1 1 . 27. 8 5 Lauterbach (Mekilta, 1 1 1 . 1 07-107) wrongly translated lt3ll:ll� n:m as "acquires merit" ; i'T:m here is a legal term, which denotes - in contradistinc­ tion to ;mp which designates acquisition by purchase - acquisition by inheritance, gift, or in any other way except by purchase, cf. Boaz Cohen , "An Essay on Possession in Jewish Law, " in the Proceedings of the American A cademy for Jewish Research, VI , 1 935, p. 13 2 . 86 Cf. Revue Historique de Droit Francais, 2 1 , 1 897, p. 622.

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It is noteworthy that another interpretation of R. Joshua hen Kor ha 8 7 on the verse n,o,;v c,,;v, y,�m t-t:i ,,,, 7,ii1 ,,, is to be found in Jerome's commentary on Eccl. Commenting upon the verse (Eccl. 1 .4) , One generation passeth away, and another generation cometh, and the earth abideth forever, R. Joshua hen Korha 8 8 observes that it is strange that the earth endures but that man passes away, in view of the fact that the world was created for man iiii1 ,,:iw:::i .�i:iJ yit-t but since man , unlike the world , disobeys the laws o f God , h e i s dissolved. U'NW 'i' in 8 9 yit-tm ;,,,:i t-tm i1":::ip;, ,w ,,,p!ln:i ,o,v ,,,p!ln:::i n,o,y t-t'i1tv ,,, i1,i:::i U'N ii"::lpi1 ,w On the same verse Jerome makes the following remark : Quid hac vanius vanitate, quam terram manere, quae hominum causa facta est, et hominem ipsum, terrae dominitm, tam repente in pulverem dissolvi? With respect to the peculium of a wife , there is an interesting remark in the Midrash. 90 The school of R. Shila told _the p arable of an efficient woman , i1iw:, iiWN whose husband before leaving on a journey, left her a little merchandise, and a little money for expenses. Upon his return , she said to him : Consider what you have left me, and how much I have saved and how much I have added to what you gave me. J'iot-t t,t',,w 'i ':Ji i1?:V::J N::JW 1,,:, l"liN'�' �vo, Cl'�.Eln �VO i1,s,:i i1, n'JiiW iiitv:, i1WN? Ci1'?:V 7' 'l"l!lOiil Cli 7' 'l"l?lO i101 ,, nm;, i10 i1Ni ,, i1iON . In another Agadic passage, 9 1 R. Simon b. Y ohai , wishing to stress the importance of accumulating learning by studying a certain portion every day, cites the parable of two brothers, who econ­ omized money out of the father's allowance (c'?lOO i'i1tv) ; one

,:v

,;v

�,tot

8 1 As was first noted by Delitzsch, cf. Bacher, Agada der Tannaiten, I I , 3 19, note 2. 88 Cf. Eccl. Rabbah to 1 .4. 8 9 In Sifre Deut. 47 (ed. Finkelstein, p. 107) this passage reads ll'll)ll) 'D?1 C?lV ?W ,,,,, o Ci1'?ll ciptm i1J'll) Ci!'WVO, For the term C?lll ?ll) , ,,,, o (cf. Gen. R. 32, 1 1 , ed. Theodor-Albeck, p. 294) reminds one of K6 1'?:lpO. Again we read if one inj ures the children of others , if they are under age , he should set aside the money damages as a trust fund for them95 Cli1? i1tv3)' CJ'J�P . . . Cl' inN ?IV 1'mJ.::ii ,,l:l.::l ,.::i,n;, i1?UO. And from another passage we learn , if a son appeared to have kept separate accounts during his father's lifetime , the profits he has made belong to him , 9 6 1':lN "n.::i p,,n i1Nil!V 1:1 ,o�3)? ?J' O ?POW i10 . Consequently, we see that the term Segullah answers in most respects to the term peculium. Up to this point we have discussyd the philological aspect of the term peculium and its Hebrew counterpart Segullah. We now mean to demonstrate that certain phases of the j uridical concept tied up with peculium have their analogies in Jewish Law , and we purpose to indicate the principal resemblances and differences of this legal notion as it was developed by the Jewish and Roman j urists. 92

11.1.

Here "11ll:7' is used in the same sense as nm.::,,,i, c•,pro J'Eliii:0 M. Shekalim

9J Cf. Ekah Rabbah 1 . 5 2 JNll: , i, mp, t,l•oi i0v He saved u p and bought some sheep. Perhaps there is an unconscious allusion to the original meaning of Segullah, cf. Feuchtwanger, Zeitschrift fur Assyriologie V, 1 890, p. 93 , and the passage in Plautus, ovem tibi dabo peculiarem (Mercator 3 . 1 . 2 7 ) . I n Genesis Rabbah 3 9 . 3 (ed. Theodor-Albeck, p . 366) we read with reference to Abraham c•::1,� c•rov0, niii:0 ,lo7' i1'i1 l�P Nli1W ivro. For a similar remark with regard to J acob cf. Exodus Rabbah 1 .4. 94 B . B. S l a and b. 9s B. l(. 87b. 96 Yer. B. B . IX.3 ( 1 7a) .

JEWISH AND ROM AN LAW

198

Now that we have shown that Segullah corresponds to pecu­ lium, let us see how the legal notions underlying this institution affected Jewish and Roman law, with respect to the right of slaves, minors, and women to hold and administer property . What Aristotle9 7 says about Greek society was true also of the ancient Hebrew and Roman economy. "The primary and smallest parts of the . household are master and slave, husband and wife, father and children" -rrpwra OE Kat EAa.xiura µeprJ

�

' � "'\

'

' ' uEO"Tr6 T'f'JS Kat. uOUI\OS Kat. 1r6ens Kat.' al\oxos, ., '\ ' Kat.' -rraTrJP Ot.KLas Kat TEKva.

Among the Romans , slaves, minors, women, 97a and persons in civil bondage , were designated as persons in aliena potestate. Gaius tells us that persons in our power such as our children, or our slaves can own nothing ipse enim qui in potestate nostra est, nihil suum h(i.bere potest ( I I 87) ,9 8 and what property a woman in manus had , becomes her husband's, sive quam in inanum ut uxorem recep�rimus, eius res ad nos transeunt ( I I 98) . From the statement of ·Papinian it is quite clear that those who are under the control of others can hold property as peculium, but they cannot possess it, because possession is n0t only a matter of fact, but also one of law. Qui in aliena potestate sunt, rem peculi­

arem tenere possunt, habere possidere non possunt, quia possessio non tantum corporis, sed et iuris est. 99

In Jewish law too, it is perfectly natural to expect that the property rights of slaves, 99 a women, and minors to be different from those who are sui iuris. In view of the fact that the laws on this subj ect changed in the course of time , we shall attempt 9 7 Cf. Politics I .2. 1 (Loeb Classics ed. , p. 1 3 ) and Beauchet, Histoire du Droit prive de la Republique A thenienne, 1 1 .393, note 2. 97a Philus asks " Cur enim pecuniam non habeat mulier? Cf. Cicero, De Re Publica 1 1 1 . 17. 1 0. 98 Cf. Mandry, Das Gemeine Familiengiiterrecht, I , Tiibingen 1 87 1 , p. 9 et seq. and Taubenschlag, Z. S.S. 50, p . 156 et seq . 99 D.41 .2.49. 1 cf. Pernice, Labeo, I . 1 24, Micolier 1. c., p. 548, note 29 and 549, · note 30, Riccobono, Zur Terminologie der Besitzverhiiltnisse in Z.S.S.3 1

(19 10), p. 325. 99a Cf. Gulak, Tarbiz, I, no. 4, pp. 20-26 and his article Rechtsvergleichende Studien zu Talmud und Papyri in. Etudes de Papyrologie, vol. I, Cairo. The latter is known to me only from Z.S.S. 54 ( 1 934 ) , p. 361 .

PECULIUM IN JEWISH AND ROMAN LAW

1 99

to �race the transformation of the rules from the Biblical period , through the Second Commonwealth , the period of the Tannaim and Amoraim as far as the sources allow. The changing rules on this theme are more than of a passing interest, because they reveal the attitude of ancient society towards the disinherited and underprivileged. Now a study of peculium is an investigation in the law of property. 100 It is of capital importance to remember that dominium or ownership of property was never absolute or un­ limited and that society always laid down restrictions upon a person as to what he can do with his property. Hence there are inferior and limited modes of ownership. Furthermore , ownership involves the problems of the acquisition , the holding and the disposal of property. · Scripture does not tell us much concerning the property rights of persons in aliena potestate, but from the scanty rules on the subject we may make some general deductions. As for the daughter, the father had the right to sell her in civil bondage in order to realize some money (Ex. 2 1 . 7 ) , to confirm or annul her vows or oaths of abstinence ,IOI while she was still unmarried iT':IN M'::l ;r, ,,l7l::l (Num. 30.4-6) . He gave her in marriage · (Deut. 2 2 . 1 6) and received the M ohar. If she were seduced or violated the fines were paid to the father (Ex. 2 1 . 1 6 and Deut. 2 2 . 29) . I f at the ti me of the marriage the bridegroom falsely slandered his bride on the score of unchastity , the mulct went to the father (Deut. 2 2 . 19) . After the daughter was married , she passed into the potestas of her husband , for vows or oaths of abstinence could be confirmed or annulled by him (Num. 3 0. 14) . As for the son , the father could give his bondwoman tp him as wife (Ex. 2 1 .9) . Extreme disrespect for the parents wan r1nted the death penalty for the son (Ex. 2 1 . 1 5 , 1 7) . If the son Jed a wanton life in disobedience of his parents' wishes , the parents brought him before the elders of the city with their complaint. 100 101

Pernice, Labeo, I.38 1 . Cf. Robertson Smith, The Religion of the Semites, .3rd ed., p. 48 1 ff.

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The son was summarily put to death by stoning (Deut. 2 1 . 1 82 1 ) . 102 Sons and daughters were given as slaves in payment for debts (Neh. 5 . 5 ) . In the light of these facts it is logical to imagine that minors or wives had a limited right to prop­ erty.103 As for slaves, it may not be amiss to recall , that slavery was merely an insignificant episode in the Hebrew economy, and con­ sequently the rules concerning them too are relatively scanty. Among the Romans, on the other hand , the number of slaves was immense, and the problem of the slave's property rights embroiled the Roman j urists in well nigh endless discussions. 104 Now among the returning exiles in the time of Ezra, 105 we find an average of one slave to every five or six persons. In later times, when Judea was practically a colony of Rome, the number of slaves was much reduced. For tbe chief source of slaves was the capture of prisoners of war, 106 and a country whic.h is m no position to wage war must carry on with a minimum of slaves. While the slave himself was considered, from one angle, as property which could be transmitted as an inheritance (Lev . . 2 5 .46) , it is quite clear that the slave was not entirely debarred from holding private possessions of his own. Thus the slave of Saul had with him a quarter of a shekel of silver which he was ready to put at the disposal of his master. 10 7 Ziba the slave of 102 In Roman Law a father may bring a recalcitrant son before the Pro­ consul for severe reproof : comminari etiam et terr ere filium a parte oblatum qui non ut oportet conversari dicatur, poterit de plano. Cf. D.I. 16.9.3. 103 Women and slaves received no portion in the land of Canaan when it was divided, cf. Sifre, Num. 119 ed. Horowitz, p. 142. 10 4 N ote that Book XV with four titles and Book XXXI I I Title 8 of the Digest deal exclusively with this topic, as well as countless rules which are scattered throughout the Corpus Juris Civilis . . ,os According to Ezra 2.64-65 and Neh. 7.67 there were 7,337 slaves among the 42,360 returning exiles. 106 From Num. 3 1 .19 it would seem that a prisoner of war had to comply with certain requirements of J ewish law, so Nahmanides, but cf. Rashi ad l oc., and lbn Ezra who says c:m;:::i J:>1llli1 ,1::i::,:, ,1:::i11::i. 10 1 Cf. 1 Samuel 9.8.

PECULIUM IN J EWISH AND ROMAN LAW

20 1

Saul possessed an estate of his own / 08 and some twenty sub­ slaves.1 09 That this should be so , should not be considered as passing strange , for in ancient Hebrew society, the slave was counted in some respects as a member of the family. One of the terms in Scripture for family is 11 ' :1 1 1 0 and a slave · is termed a 11':l ,,',, (Gen . 14. 1 4 and 1 7 . 1 2) as well as 11':J p m (Gen. 1 5 .3) . The 11':J ,,,, is one born in the household and is contrasted with one who is purchased i:i o:, mpo (Gen. 1 7 . 1 2) . Consequently, the slave shared in the cult, 1 1 2 was circumcized , partook of the sacred Cf. 2 Samuel 1 6.4 and 1 9.30. For Saadia's comment upon the latter, cf. Boaz Cohen, Quotations from Saadia's A rabic Commentary on the Bible from Two Manuscripts of Abraham ben Solomon in Proceedings of the American Academy for Jewish Research, 1943 , . pp. 7-8, and Yoma 22b, Yerushalmi , I I . (4a) Ps-Jerome to 2 Samuel 19.27. ro9 Cf. 2 , Samuel 19. 1 8, Yebamot 62a, and H . Erman, Servus Vicarius, Lausanne 1 896, p. 394-97, who points out that subslaves are found also among the Egyptians, Persians and Greeks. 110 I n Greek law olKla corresponds more closely t o the Roman fa milia than olKos, cf. Beauchet, 1 . 1 9-20, 1 1 .394, note � and Westrup, Introduction to Early Roman Law, 1 1 1 . 1 939, 1 48. I n Babylonian Law also the word "bitu", house signi fied the ancestral estate, cf. Johns, Babylonian and Assyrian Laws, Contracts and Letters, 1 904, p. 1 84. m The Targ. Jonathan ad Joe . , translates the term by •n•::i J"I Ol1!l i::i, the administrator of my household , similarly also the Targ. Onkelos. This reminds one of the Libera administratio peculii in Roman taw, cf. E. Alber­ tario, Studi di Diritto Romano, I, 1 933, p. 1 37-1 56. Elsewhere, Eliezer is termed his major domo ,n,;:i Jpr servum seniorem domus (Gen. 24.2 ) . I n Talmudic literature n • ::i 1 ::i some times denotes a n intimate friend, as in Abot 1 . 5 , or royal slave or imperial servant, cf. Ziegler, Konigsgleichnisse im Talmud und Midrasch, p . 2 14 ff. and Ben Yehudah, -Dictionary s. v. n•::i 1::i. In M . Shebuot VI I . 8, Ben Bayyit designates one o f the heirs, who administers the estate after the father's death. m Cf. Bertholet, Die Stellung der Israeliten und der Juden zu den Fremden, p. 56. Whether slaves among Arabs could possess property, cf. W. R. Smith, Kinship in Early A rabia, p. 97. I n M uslim Law, what a slave earns belongs to the master ; the slave must give dowry to the female slave, but the dowry belongs to the owner, since a slave as such , cannot acquire property. Cf. J uynboll , Encyclopedia of Islam, 1 . 1 7, and Syed Ameer Ali, The Personal Law of the Mohammedans, p . 3 7 ff. On the earnings of a slave, cf. E. Bussi, Principi di Diritto Musulmano, Milano 1 943, pp. 83-84, and J ose Lopez Ortiz, Derecho Musulmano, Barcelona 1932, p. 1 48. Since a slave could own 108

202

JEWISH AND ROM AN LAW

heave offering if his . master was a priest, and was obliged to rest on the Sabbath according to Biblical law. Accordingly, it need awaken little surprise , that a slave inherited his master if he died without issue (Gen . 1 5 .3 and Prov. 1 7.2) . An instance is recorded of a slave who was married to his· master's daughter, most likely in order to inherit the property (I Chron. 2.34) . There is an ancient saying, "Emancipate your slave and marry off your daughter" (Pesahim 1 1 3a) which reflects the anxiety of the hopeless father over the possible fate of his daughter and property. En passant, it may be remarked that the position of the slave in the ancient Hebrew economy which was primarily pastoral II 3 and agricultural , was much better than that of his counterpart in ancient Babylonian or Roman society, where commerce played a dominant role. The multiple functions ful­ filled by the slaves in the Roman system , call. to mind the mani­ fold duties performed by the slaves · in the ancient Babylonian polity. 1 1 4 It is noteworthy that the Essenes or Therapeutae possessed no slaves for they deemed the possession of slaves to and inconsistent with · the be contrary . to nature 1rapa equality of all hum;m beings.us natural

cpvuw

no property, the owner had to bring the sacri fices for him, Al-Nawawi , Commentary on the Sahih of Muslim, I I I , p. V quoted by Goldziher, Die Zahariten, Leipzig 1884, p. 58. On peculium (vindish) in Sassanidian Law, cf. C. Bartholomae, Zum Sassanidischen Recht, I, Heidelberg, 1 9 1 8, pp. 46-47, and Pagliaro in Archives d' Histoire du droit Oriental, I I I , 1 948, p. 2 1 3 . u3 The Hebrews i n captivity i n Egypt had cattle of their own and prob­ ably other possessions, cf. Ex. 9.4 ; 10. 1 0 ; 24.2 6 ; Ex. 9.20-2 1 mentions the cattle and possessions of Pharaoh's slaves. In Ex. 1 1 .2 the Israelites bor­ rowed vessels from the Egyptians. n4 For peculium among the Babylonians, cf. I. Mendelson, Slavery in the Ancient Near East, New York 1949, pp. 66-74. Meissner, Beitrage zurn Altbabylonischen Privatrecht, p. 6, and Alte Orient, VI I. 1 , pp. 8 ff. According to Revillout, the peculium of slaves played an important role in Babylonia cf. Les Obligations en droit egyptien, 57-58 ; he considers the various dis­ positions of the praetor to be borrowed from· Babylonian law, 1. c., p. LXI I I-LXIV. For peculiitm in Athenian Law, cf. Beauchet, I I .444 ff. , in Greco-Egyptian Law, cf. Taubenschlag, The Law of Greco-Roman-Egypt, p. 65 ff., and A. Segre, Byzantion, XVll .402 ff. us Cf. Philo, De Vita Contemplativa, ed. Conybeare, pp. 1 09- 1 10, and

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203

In the Vulgate , various terms are used to render the Hebrew equivalent for slave. Thus vernaculus n6 is used for 11'::l 1::i (Gen . 1 5 .3) as well as for 11'::l ,,�, (Jer. 2 . 14) where we read : Numquid servus est Israel aut vernaculus? Familia is once employed to translate 11':l 'l:l (Eccl . 2 . 7) Possedi servos et ancillos multamque familiam habui. Now in the Roman concept of familia slaves are included , for the term originally denoted the servile property and thral ls of a master. n 7 The Roman slave also participated in the cult of his master r r 8 and was to rest on the festivaI .n 9 The Greek slave too took part in the cult. 120 The Septuagint trans­ lates n':i l:l (Gen . 1 5 .3) by olKo')'EV�s which is a technical term in Greek law. 1 21 During the Second Commonwealth , persons in aliena potestate Josephus, Ant. 18. 1 . 5 . We find R. J ohanan humane in his treatment of slaves while he was severe in some of his rulings concerning them, Git. 1 2b, cf. Heinemann, Philons Jiidische Bildung, p. 338, note 2. For Cicero's incon­ sistency with regard to slaves, cf. Schulz, Principles of Roman Law, p. 2 1 5-2 16. Cf. also Beseler, Juristische Miniaturen, Leipzig, 1929, pp. 1 4- 1 5. 116 In Roman sources, they are also called vernae, cf. Marquardt, Privat­ leben der Rihner, 1 . 1 63. For Gen. 1 5 .3, Et ecce vernaculus meus heres meus erit, cf. Perozzi, Istituzioni di Diritto Romano, I , 1 928, p. 241 , note 2 and Ferrini, Capacita giuridica presso gli ebrei, p. 10 quoted by him 1. c. For heres; cf. Angelo Segre, Richerche di diritto ereditario romano, Roma, 1930, p. 26, Micolier, p. 4 1 , note 18 and W. Kamps in Archives d' Histoire du droit Orientale, I I I , p. 237-297. n1 Cf. Digest 32. 1 . 79. 1 si chorus aut familia legetur, where familia denotes a host of slaves, cf. also familia domum D. 1 5.3.3. 1 and D.50 . 1 6. 195 ; for familia, cf. Mitteis, Romisches Privatrecht, 79 ff. J hering, Geist des Romischen Rechts, I I , 1 61, note 2 1 4, and Giffard, Precis de Droit Romain, I , 1 938, p . 202, note 2 . 118 Cf. A. Houdroy, Le Droit Municipale De la Condition et de l'Adminis­ tration des villes chez -les Romains, Paris, 1876, p. 12 et seq ., J hering, Geist des Romischen Rechts, I I , 1 6 1 , note 2 14, Declareuil, Rome the Law Giver, New York, 192 6, p . 1 26, M icolier, Pecule et Capacite Patrimoniale, Lyon, 1932, p. 2 7 , note 45, and Westerman, Pauly-Wissowa, Su pplement vol. VI, 1 935, pp. 993-944. A slave could offer sacrifices, cf. J hering, Geist, I I , 177, note 253. 1 1 9 Cf. Cicero, De Legibus, 1 1. 1 2 and Wallon, Histoire de l'esclavage dans l'antiquite, Paris, 1879, I I , 2 1 2 . 120 Beauchet, 1 1 .424. 121 Beauchet, 1 1 .404, Busolt, Griechisclie Staatskunde, 3rd ed., Munich, 1920, I , p. 27.5, note 4.

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did possess some property as is indicated by the rule that the Shekel contribution is · accepted from the slave , · as it is from women and minors,1 22 but he and they are not liable for the surcharge (p:i,,p) . With respect to the use of the surcharge (KoXXu{3ov) 123 several views were current. According to Simeon ben Azzai , it was given to the money changers 1 2 4 as compensation for the loss incurred in changing the Shekalim. Other scholars opined that it was employed in one form or another in connection with the Temple. 1 25 Consequently the slaves could contribute the Shekel jointly (u:,r,nro, ) 126 in contradistinction to two free men who were joint heirs and divided the estate . If these becoine jointholders of property again , they could not corttribute . the shekel jointly without giving the surcharge. 1 2 7 · Women and slaves may vow to give to the temple their worth , or that of another person 128 or the valuation 12 9 of another person , but M . Shekalim 1.5, Sifre Zuta, p. 280. a Cf. Madden, Jewish Coinage, p. 241 . K6A}\U{3os and KoAAv/3ur-r*s are used as early as Pollux. I I I.84, cf. Beauchet, Histoire de droit prive, IV, 115 , note 1. Caillemer, Lettre de Change, p. 7-9. 1 24 The Hebrew term 'ln?HV corresponds to rpa.1retlr11s which is the regular term in Greek Law, cf. Beauchet, IV. 100, note 3 and M itteis, Trapezitika in Z.S.S. 19 ( 1898) , 198-260. In the Gospels sometimes KOAAv{3unns is used , e. g. Matthew 21. 12, and sometimes rpa1ret,r*s, e. g. Matthew 25 . 27. On money changers, cf. also E. Lambert in R.E.J., 5 1 (1906), 2 1 7-244 ; 52, 24-42 and H. I . Marrou, Histoire de l'.Education dans l'antiquite, Paris, 1948, p. 86, note 19 and Gulak, Tarbiz 1 1 . 154-1 74. 12s T. Shek 1 .8. 12 6 Sifre Zuta, p. 280, Yalkut I. 745. 12 1 M. Shekalim 1 . 7 . 128 One who vows ''ll 'll?!3 •0, must pay that person's market value as a slave pitv::i i:,0Ji1 "T::lll:, ,rmt 1•0tv, however if a person dedicates himself to the sanctuary l C"ll rv•,pnrv Nli1 1:,1 he is required only to give his market value as a slave ,,,_,, N?N tv'"Ti'i1 N?tv for as Rashi noted, a free person cannot be dedicated to the temple in the sense that he can be sold for his true value for we cannot estimate the real value of a free person ) 'iln J::1? c•o, tv' •.::,1, cf. Git. 39a. Minors could not vow, because l'lll, Oil? J'Ntll 'l!ll:) and not because they had no money. 12 9 As fixed by the law in Lev. 2 7. 1 ff., the Romans considered such vows as an Iberian custom, cf. Dio Cass. LXXX.20, and Goodenough, Jewish Courts in Egypt, p. 45. Ulpian informs us that sons under paternal control or a slave can not bind himself, without the authority of the father or his 122

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minors cannot vow to give the worth or valuation of another person win . . . c,:,,3n �, ,:i� c,:,,vo, CJ'ii.'Ji c,,,u c,;:iv, CJ'to:l nv; CJi1:l l'Nto ':i�o c,:,,,3.70 N?i l' i;u N, . . . 1�p, m�,w. The Mishnah 1 3 0 clearly . presupposes that women and slaves have money at their d isposal with which to pay their vows. 1 3 1 The Tosefta1 3 2 adds , in these days, if- the women or slaves are in possession of property, then we collect from them , otherwise we write a deed for it, and we recover the money subsequently. However, the fact that libations may not be brought from donations of proselytes, women or slaves, does not imply that they do not own property, for they are excluded from this duty, only because Scrip�ure is add ressing expressly ?Nito' 'l:l the sons of I srael. 133 With -regard to deposits, there is a rule in Jewish law1 3 4 pro­ hibiting one from accepting things in deposit from women , slaves , or children presumably because they are. not their own property. 1 3 5 Nevertheless if such a deposit was made, the object should be returned to the maker of the deposit, if it were a woman or slave. With respect to minors, 1 3 6 the rule is that the master. Filius enim familias vel servus sive patris dominive auctoritate voto non obligantur. D.50. 1 2 .2. 1 . This passage may be interpolated, cf. Arangio­ Ruiz, Istituzioni di Diritto Romano, 7th ed. Naples, 1949, p. 357, note 3 and Pernice, Zum Romischen Sakralrechte in Sitzu ngsbericlite der Berliner A kademie der Wissenschajten 1886, I I , 1 1 73 ff. For votive offerings, cf. A. de Marchi, Il Culto di Roma A ntica I, 2 7 1 ff. and Rouse, Greek Votive Offerings. 1 3° Arakin I. 1 . 1 3 1 The view of Rashi that the woman pays after her divorce, or the slave after his emancipation, and the opinion of Tosafot (Arakin 2a s. v. c,rvl) that our Mishnah deals with a case where the wife or the slave received money on condition that the husband or master has no part in it reflects the later interpretation of the law. 1 2 3 Araldn 1 .4. 133 Num. 1 5 .2, cf. Sifre Zuta, ed. Horowitz, p. 280, Yalkut I . 745. Here ?Nitll• 'l:J is taken in the narrower sense of sons of Israel, i. e. the males. 1 34 B. B. 5 1 b-52a, T. B. K. X l . 1 , Yerushalmi IX.9. 1 3S The reason is, as Rashi points out, because there is a suspicion that these three classes of persons might pave come into possession of the property illegally, and by accepting them one is more or less encouraging illegal traffic i11':JV ,,:::1,v ,,, V"D? 1lON1 which is morally reprehensible, and it dis­ courages the offenders from returning the objects to their rightful owners. 13 6 Tosafot B. B. 52a s. v. ?:Ip assumes that the property came into posses­ sion of the minor as a result that it was lost property found by him.

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value of the deposit should be invested in their name (,, iltvl)' il?UO) ,I 37 In the contingency where the persons who made the deposit died, then the object goes to the husband, master, or heirs respectively. The Amoraim understood il?UO ,, iltvl)' as the conversion of the money into capital, of which the children would enjoy the fruits, while they are minors, and would be able to dispose of the capital when they reach their majority. The Amoraim suggested date palms, or a scroll of the law 1 3 8 as a suitable form of investment. 1 39 Now in Roman law a slave or filius Jamilias could freely make a deposit and as Ulpian 1 40 informs us the depositary should, as a matter of right, and good faith, return it to the slave . Quod

servus deposuit, is apud quem depositum est servo rectissime reddet ex bona fide, provided as Sabinus says "that there should be no

cause for the depositary to think that the master was unwilling for the property to be returned to the slave" nee ulla causa intervenit, quare putare possit dominum reddi nolle. Then Ulpian continues, If, however, the slave had previously been guilty of theft, and the depositary was ignorant of the fact , or thought the master was willing to have the property delivered, he will be released from liability, sed et si ante eius rei furtum fecerat servus,

si tamen ignoravit is apud quem deposuit vel credidit dominum non invitum fore huius solutionis, 'libera1'i potest. Where an actio depositi is available, it is the ma�ter of the slave who brings the action. 1 4 1 In case of a filius familias Julian and Marcellus held that he himself could sue on deposit , filium Jamilias depositi recte agere. 1 42

Among the ten classes of people that are enumerated who do not receive Terumah at the threshing ffoor, but whose portion 37 R. Samuel hen Meir B . B . 52a explains i1 ? 1lO as ,�,�. 38 R. Samuel hen Meir B . B . I. c. C"P 1ip;i1 mi•:i •i;i i:::i ,,o,', . The scroll represents the capital , the use of the scroll for studying represents the fruits. The i1Wtl 'l!l Y. B. K. IX. 7 explains i1 ? 1lo as the l'lO"P Jip. 13 9 Maimonides (pip£> VI I . 10) incorporates both views, cf. i1ltlltl i•lo, ad loc. For a similar principle among the Greeks, cf. Beauchet, Droit Prive, I I I , p. 1 74, note 1 . 1 4° D . 1 6.3 . 1 1 , cf. Micolier, p. 5 1 5 , note 3 . 1 1 • D. 1 6.3 . 1 . 1 7 , 28-33. 1 4 2 D . l 6.:U 9, but cf. M icol ier, 650-65 1 . 1

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is sent to their homes ,14 3 are minors,144 women and slaves. In case of the distribution of the tithes for the poor1 45 (')V irvvo ) the women receive their portion first. That a woman possessed independent property of her own during this period may be deduced from the following rules. If a woman vowed to be Nazirite , she could set apart her own cattle for the sacrifice.1 4 6 As the wife of a priest . she could purchase slaves that may eat of the heave-offering. 1 47 She could donate and bring a meal offering (c'tvJ nmo) . 1 4 8 With regard to obligatory sacrifices, the rule is that a rich man 1 49 may bring a poor man's offering in behalf of his son or daµ.ghter who are minors,1 50 or his slaves, and so enable them to eat of the sacrifices after they have been cured of leprosy. R. Judah required that he bring a rich man's offering in behalf of his wife , 1 5 1 and for whatever offering she was liable. In other words , the kind of sacrifice the husband brings in behalf of his wife should correspond to his economic status. If a man throws a bill of divorce to his wife and it fell to the ground , if it happens to be in her premises, such as her home or courtyard, she is divorced . 1 5 2 The basis for this rule is an old interpretation of Deut . 24. 2 which reads : "and he shall put it 143

T. Terumah X . 1 8 , Yebamot 99a, Yer. Yeh. XLS, T. Peah IV.4. For the minor, cf. Tosafot Yeh. 99b, s. v. ,,�,. . x4s Yeh. 100a Rashi explains that 'Jll iw310 is distributed in the house, R. Tam poin ts out that sometimes it is given in the house and sometimes at the threshing floor, cf. Tosafot s. v. iru311.J. 1 6 4 M. Nazir IV.4. 1 7 4 Yeh. 66a. In Baba Metsia 71a there is a controversy among the scholars, whether a woman may purchase male slaves, cf. D. 1 5 . 1 .3.2. Parvi autem 1

44

refert, servus quis masculi an muleris fuerit : nam de peculio et mulier con­ venietur. 48

M. Menahot V.3 . M. Negaim XIV. 1 2 . 1 0 s If they are poor, showing that they could own property. ' 5 1 Bertinoro remarks um:, ,nru�. R. Nissim to Nedarim 35b, following the Amoraic interpretation, observes that no wife is rich for all her property belongs to her hu.sband i1nli'W i10 ',:, •ii1tu i1i'tull �•m �, ? l/:l i1? tu'tu i1tu� ';,:,ru i1?l/:l i1Ji' i1ill�. Yet he must bring a rich man's offering if he is wealthy, cf . also Nazir 24.a, B . M. 104a, Tosefta Ket. IV. 1 1 , p . 42 5 . 1 s2 M . Git. VII I . 1 . 1

1 49

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in her hand ". How do we know if he put it on her roof, courtyard or enclosure (IIJ'Dip) that it is valid? Scripture says "he shall put it in her hand , wherever he puts it.I 53 Had Scripture written , in her hand he shall put it, we would be obliged to take the verse literally. In any event, it is clearly indicated that a woman owns her own property . . According to R. Jose ben Judah , a rebellious son iliio, ,,,o 1 ::i was punished as such only i f h e stole from his father and mother.I 5 4 According to a view transmitted in the name of R. Meir, a woman may redeem the second tithes without giving an additional fifth if she is redeeming the tithes with her own money: 1 s s A wife's property ordinarily could be increased by gifts as may be inferred from the M ishnah, 1 5 6 which deals with an exceptional case. If a man , who prohibited his son-in-law under vow from deriving any benefit from him , wishes to bestow a gift upon his daughter, he may do so in the following manner without infring­ ing upon his vow. When he gives the money to his daughter he says to her : This money is given to you under two conditions , first, that your husband should have no right over it, either to use it, or to dispose of it, even with permission (Nil' N,rv Jii:i mrv, 7,31:i, ) . Secondly, whatever transactions you make with the money, should be the result of your order or suggestion (ts87'D::l ts1mnm nNtvU nNtv i!O N,N) . Since the husband is prohib-

,::i,::i,

Git. 77b. s◄ M. Sanh. VI l l .3 . 1 s5 Kid . 24a, and T. Maaser Sheni IV.4. 1 56 M . Nedarim Xl.8. 1 s1 Cf. Shebuot V I I . 5 , B . B . 52b n•::iil 71n::i nmm nNtvll N'iltv iltuNil 1:11. 1 8 s The reading in the Cambridge and Parma M SS. is nNtvU nNtv ilO N? N 7•g::i nlnm. The Budapest M S. reads 7 • g ::i mnil mtrv ilOl N ? N . The , in ilOl i s crossed out. In the first edition o f Yer. Kid. 1 .3 (60a) the reading is ilO N ? N 7 'D? mnu muv whereas Yer. Git. VI I l . 1 (49b) reads n m m nNtoll nNtv il O N ? N 7•g::i there is no doubt that the latter · i s the correct reading. While 7'5':l is found only once in the Mishnah it is probably in fluenced by Deut. 2 3 . 24 7'D:l ni,l itvN:> il::i,l • • • n•rvyi and is used in contradistinction to 7':J ?Y in M. Ned. Xl .4. For 7•D::i , cf. Gen. 4 1 .40 •oy I;, ::, pto• 7 'D ? y which - the Vulgate translates et ad tui oris imperium cunctus populus obediet. Note that the Vulgate uses imperium which is a �oman technical term for the highest authority cf. D.1.2 1 . 5. 1 ; D . 1 1 . 1 .3 , and Mommsen, Romisches Staatsrecht, I. 2nd ed. , p. 22 et seq . i53 1

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ited by vow to derive any benefit from his father-in-law, the use of the gifts of his wife from her father, after the vow was made , on his orders how to administer the money, would be a clear evasion of the vow. From this M ishnah , we may infer , that in cases where no vows interfere , a father may freely bestow gifts upon his daughter, without any conditions , and the property belongs to her. That a slave had possessions of his own is evident from the fact that he could bring his own paschal lamb / 59 · and could purchase subslaves (vicarii) 1 60 and if the slave belonged to the priest, the vicarii would be permitted to eat the heave-offering (:io,,n ) . According to R. J udah the Patriarch , the slave could purchase his freedom with his own money, as we read in a baraita : 1 6 1 I f one dedicates his estate to the Temple , tv'ipo;, C'i:1>7 li1::l ,,m ,,o:,J the temple treasurers (l' i::lTli1) are not per­ mitted to emancipate them , 1 62 but they may sell them to others and the latter may emancipate them. R. Judah the Patriarch says : I am of the opinion that the slave can purchase his own freedom. 1 6 3 , , ,,:,,o:, Nmtv 'l!lO N�,,, ,0�>7 'Oi 1nu N,il � lit . 164 1s9

M . Pesahim VI I I.2. Yeh. 66a, Yer. Yeh. VI l . 1 . Sifra to Lev. 22. 1 2, cf. Melamed, •ro,,c •?:::i::i ,10,n:::i C'Nll1il ,ro i!:,?il, p. 29l and Tosafot Yeb. 66a s. v. c•,:::iv1. An allusion to the vicarius is found in Kid. 22b. For the children of Israel shall be my servants (Lev. 25.55) but not servants unto servants c•,:::iv, c•,:::iv N?l. For the servus servorum Dei of the Canon Law, cf. H. Erman, Servus Vicarius, L'Esclave de l'esclave romain. Extrait du Recueil publie par la Faculte de droit de l'Universite de Lausanne, pp. 408-409. For Vicarii among the Hebrews, cf. 1. c., pp. 395-396. 161 Git. 38b, for a similar controversy, where slaves are under the jurisdic­ tion of a guardian (01.!l11!:1'.!lN = e1rlrpo7ros), cf. Git. 52a,· T. Ter. 1 . 1 0 and cf. Tosafot Git. 38b s. v. J'N. 162 Even if the slave wishes to purchase his freedom, because as Rashi says, the temple does not . own the body of the slaves roipil? 'llp l.!lll J'N •inrv for they were dedicated only as far as their money value was concerned 1•0,, N?N 1ro•ipi1 N?ro. T his distinction reminds one of D.2 1 .2.2 L2 where the corpus and money value of the slave are contrasted cum igitur neque corpus 160

neque pecunia emptori absit. 163

In Roman law, too, a slave could purchase his freedom, as early as the t_ime of Plautus, cf. Wallon, Histoire de l'Esclavage dans l';! ntiquite, 2nd ed., Paris, 1879, I I . 209, Pernice, Labeo, 1 . 1 24, note SO; and E. Weiss, Institu­ tionen des romischen Privatrechts, 1 949, p. 83, note 59 . . 164 Rashi says, ,,:,,,.,:, NlilfO 'l.!lC just as he can sell the slave to others, so he

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With regard to minors, we learn that what was owing to them was generally set aside in their behalf as a special fund · (i1?1lO) . Thus we read if a minor said to a stranger, Feed me with the tithes from the portion that is due to me, then he may do it for the sake of public policy (C?1S,il 11pn ')!>�) . If the stranger were under obligation to maintain him, or if the minor was earning his keep, he maintains the minor with his own money and sets aside the money of the minor as a fund (i1?1lO) . 1 6s With regard to a deposit, we mentioned above , that it was not permissible to receive something on deposit from him, but if it had been received from him, the object is not returned , but its equivalent in money is set up as a fund (i1?1lO) . In case where inj ury was inflicted by the father upon his son , according to one authority, the father would be obliged to set aside a fund (i1?1lO) for the son equal to the sum of damages he suffered . · If a stranger inflicted inj ury upon �hildren under age , be it male or female, they would be entitled to compensation which would be set aside as a fund (i1?1l0) . 1 66 Consequently we see that i1?1lO in these legal sources denotes a private fund which is set up for the minor from his earnings, from a deposit that was returned to him , or from money he received as compensation for damages he had suffered. The money thus µsually came from strangers,1 6 7 but a case is mentioned where it was given by the father. can sell him to himself, p•,!l 7 ,, N?1 i::>1.)l;)l npi, 7,, Cln•rv ,::1,::11. It is quite clear that the view of R. J udah represents the older halakah . . What is inost interesting is that the baraita says, "the slave gives his money value" assum­ ing that the slave has money of his own. According to a view of R. Akiba reported by R. Shimon, a slave who is emancipated by ·money, is freed from servitude, but her subsequent marriage is valid in the sense of a contubernium . It is a kind of irregular and incomplete emancipation 9 0:;;, J'N1 · ;,::i 11.)ll ,caw ;i::i 11.)ll (Git. 39b) . 1 6s Tosefta Terumah 1 . 1 3. 166 B . K. 87b, cf. also Rashi to Ket. 43a bottom, Tosafot Ket. 40b, s. v. 'N,. For Segullah, cf. Rashi to B. K. 84a. For injury to a slave in Greek law, cf. Lipsius, Das Attische Recht, p. 793. 16 7' Rashi speaks of the money inherited by a daughter under age from her maternal grandfather as forming part of the i1?1lO (Ket. 46b) , and it was from her i1?llO that a daughter could redeem herself if she were captured, Ket. 47a s. v. N�'i'l NO':>. Cf. also Nimuke J oseph to B. B. I II, no. 182.

PECU 1.I U M IN J EW ISH AND RO M AN LAW

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The significance of Segullah is . that it is the- minor's personal property, and when the father dies it is not shared by the other children . According to the Amoraim, the money which is con­ stituted as Segullah is converted into property of which the minor enjoys the usufruct while he is under age , and presumably the capital is his when he reaches his maj ority. While we h ave thus far dealt with Segullah in connection with a minor, the notion of Segullah is embodied in a rule concerning a consortium . 168 Before coming to the main point we must make a few preliminary observations upon this institution . According .to the Mishnah , 169 if some of the sons in an undivided estate improved the property, the. benefits are shared by all in common , unless they specifically indicate that they wished to divide the inheritance , in which case the impQrvements belong exclusively to them 1FJ�3)? in':ltvi1 CJ'?.:>iNi 1'tvi3) iJN ,,;, N:lN n'mtv ;io ,�, . If one of the heirs in an undivided estate , was appointed as a tax farmer, or manager (o' �'O?i!lN = E1r1,µEArJT�s) , I7o the question arose whether his coheirs were entitled to a share in his profits. In a case where R. Samuel ben N ah man was forced to be a m�mber of the {3ov)vl, ('?i:l? rtJ!)MJ) , R. Ami , a Palestinian Amora of the third century was asked by his coheirs to give a decision in that case . 1 71 This rule recalls to one's mind the opinion of Papinian 1 72 that For consortium in Roman law, cf. E. Levy, in Z. S. S. 54 ( 1934), 2 7 6 ff., Koschaker, "Fratriarchat, Hausgemeinschaft und M utterrecht" in Zeitschrift fur Assyriologie, N. F., vol. 7, 68 ff. Westrup, Introduction to Early Roman Law, 1 1 .56 ff. J ors-Kunkel-Wimger, Romisches Recht, 3rd ed. , p. 240 , note 2 , Wieacker, Societas Hausgemeinschaft Erwerbsgesellschajt, 1 936, p. 1 53 ff., D. Daube, Juridical Review 62 ( 1 950) , pp. 7 1-9 1 . J uster, Les Juijs dans L'Empire Romain, 1 1 .47 and E. Szlechter, Le Contract de Societe, Paris, 1 947, p. 1 69 ff. 1 1° Tosefta Baba Batra X.4. 16 9 Baba Batra IX.3. 1 1 1 Yerushalmi Baba Batra X.4. As a member of the {3ovX� he was respon­ sible for the taxes to be collected from the community, consequently it was a liability to serve on the local council. No wonder R. Johanan exclaimed 7,1::ll ?V:l 1,,, il'il' 71,•::,m ct-t. For his other remark ,1:1!>'i1? n,111,, J'?::l1p '?1::l7J (Yer. M . K. 1 1 .8 1 b, Sanh. V I I I .26b ) , cf. D.2 7 . 1 where a whole title is devoted to the instances where one may seek to be excused from the com­ pulsory and onerous duty of guardianship. For {3ouX� cf. the references and literature cited in Encyclopedia Judaica, IV. 1 1 88-1 190. 1 12. D. 1 0.2.20. 5 . 168

,,,::i,

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if one of the sons administered any office after the death of the father, the heirs of the latter will not be liable for any obliga­ tions incurred with reference to said offices (sed qua munera post mortem. patris suscepit ab hi.s heredis patris soluti sunt) and note also the discussion of Neratius 1 73 anent the liability of coheirs for the expenses of one of the sons who acted as an O."fWVo0fr'Y}s , director of games , after the death of his father and before the partition of the etate. In anoth.er baraita ,1 74 we find the following regulation . I f one of the brothers, as heir of an undivided estate was managing its affairs , and produced dee_ds of sale , nmN (wv�) and bonds of i ndebtednes? (m,�ro) in his own name , with the claim that they were res,uft of the property he inherited from his maternal grandfather, his claim would be valid against his half-brothers , in case . the. coheirs had previously agreed to their separate a�counts for maintenance. (1no,y:i J'pi,n) . For in this instance , we ass�ine that one brother was very thrifty (fO'P ,no,yo ,o,N) and sav�d up enough money to acquire property of his own. This ruling is very close in principle to that of anothe.r opinion transmitted , by Papinian . 1 75 Where brothers retain undivided the . estates of their parents. in, order to share the profits and losses of the same , any acquisition which they obtain from any other source does not belong to the common fund. si Jratres

parentium indivisas hereditates ideo retinuerunt, ut emolumen.tum ac damnum · in his .commune sentirent, quod aliunde quaesierint in commune non redigetur.

In the light of the foregoing regulations we shall better

D. 10.2.20. 7. B. B. 52a, cf. also Hoshen Mishpat 52. For Y'-''i', cf. also Tosefta Peah I.V .3 Jil� l'lnm l'�opr.,. ·For •m� = WP?] as a deed of sale of a slave, cf. Pesikta Rabbati 1 39b, ed. Friedmann and Ekah Rabbah I.38, ed. Wilna, which records the following parable : In case of fire in the kirig's palace some rush tci plunder silver, scime gold, but the slave is seeking his deed of sale, ,�w •mm, iri order to make sure tha't it will be destroyed and thus erase proof of his slavery. For WP?] meaning · deed of sale of a slave, cf. Westerman, Upon Slavery in Ptolemaic Egypt, New York, 1 929, p. 10, note 13, an·d Pauly­ Wissowa, XVI I I . 1 , s. v . . WP?], Pringsheim, Greek Law of Sale, p. 92, note 3. 1 1s D. 1 7.2.52.6. 1

13

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understand the decision of R. Arni , r 7 1> pertaining to the matter ·of Segullah , R. Ami ,"177 most likeiy, merely transmitting a very early view, held th�t a son who kept separate accounts during 'the life time of his father, was entitled to whatever profits he made ; which constituted a private fund ,,?N ,,n:::i p,,n · i1i:-tiJtv p 10��, ?l'O ?l' OW i10. Consequently , his brothers ; · could not claim any share in the profits as members of the consortimn (l"J'::li1 r,oum ) . 1 7 8 We have assumed that the rules cited hitherto reflect the law prevailing during the latter part of the second commonwealth, that is before 70 C. E. \Ve felt j ustified in our conjecture because many of these rules regulate_ duties pertain­ ing to the temple or priests , or are civil regulations which are more in keeping with Biblical legislation . While the references to ·segullah in · Tannaitic sources are scanty, there can be no doubt that the institution of Segullah was far-reaching and old. It is hardly likely that the Tannaim would have invented this term. The reason for the paucity of allusions to Segullah in later times is the result of some im­ portant changes in the structure of the Jewish family life. I n B iblical times and later, as we have seen , slaves ,vere not an important element in the family ·organization , and to have deprived them of all property rights would have seriously inter­ fered with their usefulness. Women brought in· property · as dowry, naturally, but there was no precedent for prohibiting 16 , Yer. B . B . IX.3. ( 1 7a) cf. Daiches ad loc. I n Yerushalmi, l . c . , there is a report of two cases concerni ng an u n­ divided . estate, an erctum non citUrm (to use the quaint phrase of G,;llius, I .9. 12) in which R. Ami was asked to render a decision. In the first, o�e of the heirs became a barber (i!l o i•.::ivn•N) and the coheirs wished to share the pro fits. Whereupon R. Ami brushed aside their clai m with the observation " I f one of the brothers finds something, can the others claim a share iri.. it? " I n the second case, one of the · coheirs became a manager ,(Nnl n'�II!' p!ll) . R. Ami rejected the claim of the, coheirs with the ironical .r,ema�k, " Suppose your · brother made heaps of money in robbery, would you be entitled to a share ? " For a close parallel , cf, the statement of Ulpian in D . 1 7.2.53 . 1 1 8 For n•:lil n oi!ln, cf. B . B . 1 3 7b, literally the possessio�s of the house, i . e., the family estate. The Tannaitic term for consortium is J':>n1tui1 pnNi1, i. e . , brothers who are partners, cf. M. Erubin 6.7, Shekalim I . 7 , Baba Batra ,9.4, d. also pn�• ,m, , s. v. p,,n, c•�,, c•nN, I .43-44. 1

1 77

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them from owning independent property of their own. As for children , both sons .and daughters, · it may be assumed that in early times, they were si1bject to the potestas of the father, until they married. They were freed from his power if he died before their marriage. Consequently there is no term for minor in the Bible. Thus Ex. 2 1 . 28-32 which lays down the law con­ cerning an ox which gores persons to death, discusses them in the following order : ( 1 ) If it gores a man or woman (2) son or daughter, (3) a slave. A son or daughter might have reached maturity and still be subject to the father's authority. To deprive them of all property rights would also work an un­ necessary hardship. Consequently, the custom arose to vest the woman, the slave, or minor with property rights which enabled them · to form a private fund of their own known as Segullah. The meager references to Segullah in halakic sources are ample testimony to the fact that the institution disappeared in the beginning of the Tannaitic era for intelligible reasons. As for children·, the rabbis fixed the age of 1 2 for females and 1 3 for the males as the period when they attained their maj ority and were responsible for their acts. 1 79 . Consequently it was not so important for them to possess property rights as heretofore . As for slaves, they began to play a diminishing role in the Jewish economy and because of their notorious dishonesty and imm6rality180 their property . rights were severely curtailed. As for the women, we find that her property was more and more subjected to the control of her husband , for the sake of domestic bliss and familY. harmony. Now Papinian� 81 is the authority for the statement that 1 19

M. Niddah, VP. 1 1 . For the minor in Jewish law, cf. Low, Lebensalter, Szegedin, 1875 , p. 139 et seq. and Lebendiger, J. Q. R., N. S., vols. VI , 459-490, VI I , 89-:-1 1 1 , 145- 1 74. For the minor in Roman law, cf. Weiss, Institutionen des romischen Privatrechts, 2nd ed., p. 480, note 100. Justinian t�lls us that the ancients judged of puberty in males not only by their years but also by the development of their bodies. Pubertatem autem veteres quidem

non solum ex annis, sed etiam ex habitu corporis in masculis aestimari volebant. Institutes, I . 2 2 pr,, cf. also Accarias, Precis de Droit Romain, 4th ed. , p. 204. and Rein, Privatrecht der Romer, 1858, p. 1 49. 18

° C f. Git. 1 3a. Cf. above note 99.

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persons in aliena potestate can hold property as peculium, but cannot own it de jure. Now by persons in aliena potestate are included the filius or filia familias, itxor in manu, the slave and persons in civil bondage (in mancipio) . However, the sources, 1 82 j uridical and literary , only refer to peculium of the filius or filia familias , and the slave both male and female. To remove confusion it will be necessary to realize that the Roman filius familias is not commensurate with the minor in Jewish law . As we have j ust noted , in J ewish law , a person attains majority at puberty, which was fixed at · 1 2 and 13 years , for a female and male respectively, and was then completely liberated from the control of the father. A person born of a justum matri­ monium became a filius familias and was subj ect to the potestas of his father, as long as the latter was living, no matter how old he himself was,1 8 3 even if he himself became a father or grandfather. The filius familias was only freed from potestas by the death of his father or by formal emancipation . Persons under 1 2 and 1 4 , depending on whether they are females or males , are termed impubes. 1 8 4 If a person under puberty is stti iuris he is usually termed a piepillus 18s for his 182

Cf. Mandry, Familienguterrecht 1 1 .39 ff., Micolier, Pe.cute, p. 8, note 2 , b u t cf. Hunter, Roman Law, p. 292. 18J Thus D . 1 5 . 3 . 7 . 5 , deals with a .case where a filius familias borrowed money and gave it as · a dowry to his daughter. In M. B. M ; 1 . 5 , it is stated that lost property, if found by minors,· belong to the father, if found by children who reached majority belong to the · finder. Upon this statement R. J ohanan, a Palestinian Amora of the third century remarked that in this passage, minor means a person supported by his father even if he has reached puberty J �P mr 1':lN 1n',rv ',31 7,00, i,,,l and a child who is not supported by his father al though he is u nder puberty, is considered an adult, Jn',rv ', 31 7100 ll'Nl l � P ',m ll"II 1 '::JN, B. M. 1 2b. 184 Cf. Accarias, Precis de Dtoit Romain , 4th ed . , pp. -203-204, J crs- Kunkel­ Wenger, Romisches Recht, 3rd ed . , p. 87 . 18s The Vulgate translates c,n, b y pupillus, cf. e. g. Lev. 22.22 and Deut. 1 6. 14, whereas the Septuagin t renders it by opcj,o.vos. The Latin term for .orphan is orbus. In D.4.3 . 1 3 . 1 Labeo observes : I think that a pupillus can be sued on the ground of his own fraud, if he has almost reached the age of puberty, especially if he were enriched by the act. Ego arbitror et suo dolo conveni.endum, si proxinms pubertaU est, maxime si locupletior ex hoc factus est. The proxim1ts pubertati recalls the fll'Ni, 71cc,;i N',!l10, a child near the age of

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affairs must be managed by a guardian known as tutor. 186 A person reaches his maj ority in Roman law at the age of 2 5. 1 81 Hence a minor is one between the age of 1 2 and 2 5 . 188 If the minor is sui iuris he was subject to a guardian known as curator

minoris.189

Consequently , the impubes filius familias 19 0 would be the closest approximation to the minor in Jewish law, but the Roman pater familias would still have much more power over his children then the Jewish father over his children under puberty. Although the filius familias is not the exact counterpart of the minor1 9 1 (1r:,p) in Jewish law, they both are subject to the pote.stas of the father in varying degrees, and consequently it will not be amiss to make comparisons between members of the Roman family with their opposites in the Jewish family. In Tannaitic and Amoraic times, the tendency was mainly to restrict the right of the persons in alieni iuris, as we indicated puberty, cf. Temurah 2b, 29b. An impubes in potestate is sometimes termed a pupillus, cf. Accarias, Precis, I , 319, note 1. 186 D. 50.16.239, cf. also Solazzi, Curator impuberis. Pedius is of the opinion that a pupillus could have a peculium, pupillum autem tam filium quam servum peculium habere posse (D. 1 5 . 1 .7.3) . He further says that owners who are under puberty are still held liable under ttieir peculium, impuberes dominos de peculio obligari (D. 1 5. 1 .3.3) , cf. also Micolier, Pecule, p. 274, note 14. According to Pernice (Labeo, I . 1 2 1-122) only older sons, but not sons who were minors could have peculium during the republican period. 181 D. 48. 5 . 1 6.6. Cf. S. Solazzi, La minore eta, Rome, 1 9 13. 188 Paulus tells us that if a slave or filius jamilias defrauded a minor (minorem circumscripserit) the father or the master should be ordered to make restitution of whatever came into his hands, and whatever he did secure possessions of, he should furnish out of the peculium (ex peculio eorum praestare) D. 4.4.24.3, cf. Cicero, De Officiis I I I . 1 5.61 who speaks of circumscriptio adulescentium lege Plaetoria, and also D. 44. 1 .7. 1 . 1 8 9 Cf. Lenel, " Die Cura Minorum der klassischen Zeit" i n Z . S. S. 35 (191 5) . 1 9° Ulpian remarks : Si cum impubere filio familias vel servo contractum sit,

ita dabitur in dominum vel patrem de pecu,lio, si locupletius eorum peculium factitm est. D . 1 5 . 1. 1 .4) Mandry (Gemeinqegilterrecht I I .36) cites Plautus to the effect that even four year olds had peculium.

191 For the age of majority in Athenian law, cf. Beauchet I I . 103 ff. Tauben­ schlag remarks that the minors, in a numqer of documents, are not termed acpfjX,t but are described by the paraphrase OUOE7rW c)I) TWV ETWV, cf. s. s. 37 (1916), p. 195.

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above. This will be clearly seen in the following rules regulating their earnings, allowances, finding of lost property, gifts , com­ pensation for injury, purchase and sale of property , loans, agency, and guardianship. The most important source of income in ancient times for the mass of people was undoubtedly what one earned from manual labor o,,, i1WSJO. Let us see what the laws on this sub­ ject were for the persons alieni iuris in Jewish law. As for the son who is a minor, there are no rules in Tannaitic sources and presumably what he earned 1 92 belonged to himself. According to R. Meir and R. Judah it was merely a moral obligation for the father to support one 's minor sons. 1 93 However at the Synod in Usha a law was passed making it a legal obligation to sup­ port one's sons and daughters while they were under age. 1 94 The earnings (i1'1' muvo) of a girl under twelve and a half years belonged without question to the father. 1 95 Rab maintained that this law was Biblical in origin (:itt? n:ii1 i1WSJOW l'JO) for Scripture says, if a man sells his daughter as a bondwoman, just as the earnings of a bondwoman belongs to her master, similarly, the earnings of a da1 -1:iter are her father's. 1 11 6 If a daughter earned some money, and her father died while she was still a minor and before she could collect it, then it goes to the brothers. 1 97 The question was raised pertaining to the earnings of a young orphan daughter who is being maintained from the estate of her brothers which they inherited from the father 1 98 (m, r,m n:i '0? i1''1' ilWSJO pntti1 10) which occasioned a controversy among the Amoraim. Rab was of the· opinion that the earnings be­ longed to the girl, whereas R. Sheshet held it belonged to the brothers. With respect to the wife, the bare fact that her husband was 192 According to Tosafot B. M . 92b s. v. N? the earnings belong to the father only according to rabb inical law, 1'::IN? ,,:)tVl lPP nN•is:0 i1li'1 p::i,,o,, cf. also Hoshen Mishpat, 2 70.2. i93 Ket. 49a. 1 9 ◄ Ket. 49b, Yer. Ket. IV.8. 19 s 1 96 Ket. IV.4, Niddah V.7. Ket. 47a. •91 Ket. IV . 1 . r 9B Ket. 43a, cf. Tosafot I . c. , s . v. n:::i.

21 8

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entitled to her earnings is indisputable. 1 99 The husband shares his wife's earnings in return for fulfilling the Biblical obligation that compels him to support his wife, 20 0 in order to lighten, so to speak, the burdens of matrimony. A similar motivation is presupposed in the rule reported to Ulpian : " Equity requires that the profits of the dowry shall belong to the husband, sinc e he bears the burdens of matrimony, it is but right that he sho uld receive the profits. 201 The rule as laid down in the M ishnah sets forth the minimum share of the wife's earnings he is entitled to, in return for the minimum amount of sustenance he i� required to furnish her. It is understood that the law governing this quasi mutual assistance pact was largely determined by the economic and soc ial status of the parties to the marriage contract202 C' i:Ji i'TO:J '!)? ?:,ii ,::i,:,o::,, ?:JN ?Ni1ll':J1l) 'l3):J c, ,,oN. This rule in turn gave rise to the problem as to the surplus earnings of the wife (imo or iT!)i}lil) , i. e. if she earned above and beyond the minimum required by law203 ,m, ;i:,N?O i11ll3Jl1 CN c, o:,n ii? ipo!)rv ilOO . However , instead of formulating the general rule on this point, we are presented with disputations of the

,,,::i:,

Ket. IV.4, VI . 1 . ° Cf. Ket. 58b where the baraita i s correctly emended il!Vl/7.l ilpn N7.l'N nmrl:l nnn n•,,. The original reading in Ket. 47b il'1' il!Vl/7.l nnn nm r7.l 1lpn is impossible for two reasons. First the obligation to support a wife is Biblical , being derived either from n,t-trv or ilnl1V (Ex. 2 1 . 10), cf. Ket. 47b and Boaz Cohen, "On the Theme of Betrothal in Jewish Law," p. 1 18, note 292, in Proceedings of the American Academy for Jewish Research, vol. XVI I I , 1 949. Secondly, there is no mention in Rabbinic sources that n•i• ilrt,tS,7.) is Biblical which seems to be presupposed in the statement, ;,,,, illVS/7.l nnn nmr7.l upn. The emendation given in Ket. 59a, n•i• illVS/7.l ;n,7.) nnn mmc llpn N7.l'N is also an unhappy one, nor does the statement l"l:1'14 cmvc M•i• l"l!Vl/1' , • • u•pn represent the original motivation of the rule. 201 Dotis fructum ad maritum pertinere debere aequitas suggerit : cum enim ipse onera matrimonii subeat, aequum est eum etiamfructus percipere. D. 23.3 . 1 .7 pr. For the interpolations, cf. Levy and Rahel's Index ad loc. For the onera matrimonii, cf. Czyhlarz, Das romische Dotalrecht, 1870, p. 1 5 et seq. and H. Cuntz, Vergleich der Rechte des Ehemannes an der Dos mit den Rechten des Vaters am peculium adventitium regulare, Greifswald, 1 897. 202 Ket. V.9. 20J As Rashi phrases it, Ket. 65b, cf. Resh Lakish 's statement wen ,ni0:1 1•1•,, 1•v';, o, Yer. Ket. V.S, Ned. XI .4. 1 99

20

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scholars on several cases whence this rule may be deduced. Need­ less to say, these statements of the law gave the Amoraim much opportunity for , casuistry. We intend to express the historical view point. With regard to the surplus earnings of the wife, there are two controversies which appertain partly to the domain of sacred law (res sacrae) . If a man dedicates to the temple the surplus earnings of his wife (imo) R. Meir deems them sacred , R . J oharian Ha-Sandlar says they are · not sacred. 204 I t i s quite clear that the issue between the scholars centers on the ques­ tion to whom . the surplus belongs. R. Meir holding it is the husband's, hence he could dedicate it, whereas R. Johanan Ha-Sandlar was of the view that it belongs to the wife , an d consequently he could not dedicate it. 20s While this controversy deals directly with the problem of surplus, there is another dispute where this question is in­ directly involved. If a woman says to her husband, I prohibit you under vow (clip) 206 to benefit from any of my earnings, he need not annul the vow. R. Akiba says he should annul it, for she may earn above and beyond the minimum to which he is entitled ,, 'ittiil ,n, ,,,31 .,,,31n ttorv. R. Johanan hen Nuri held that he should annul it, because he may divorce her and will , because of her vow, be prohibited from remarrying her. 201 Now the first Tanna holds that since the surplus belongs to the husband hence he need not annul the vow. R. Akiba is of the view that the surplus belongs to the wife, and since she is prohibiting her husband from everything she earns this might i nclude the surplus also. 208 R. Johanan ben Nuri too was of the opinion that the surplus belongs to the husband (i,rv) but the

v�

M. Ket. V.4. s This interpretation is presupposed. in Yer. Ket. V.S, where we read : n,rv ,c,H ,,ilOi1 pn,, •,, ,,rv ,01H i•HI.) •,. We have emended the text slightly in accordance with the parallel passage in Yer. Ned. XI.4. 6 For Olli', cf. Cook, North Semitic Inscriptions, Oxford, 1903, pp. 33-4 . 1 M. Ned. XI.4. s Cf. Ket. 66a and M. Ned. Xl .4 and as the Yerushalmi, I. c., explains i1D1:l ll'N 1?'Nl l:l'C i1D1:> Nli1 c•y',o 'i1 ,y n,11117',c ;,,,, i1tlll)C nioNtll:l N:l ':li ,ctt ilOHi1 JC i1li1l N�l.)ll in,• iltlll/M Nl.)111 Ni"Ml.)tl) . 204

20

20 20

20

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J EWISH AND ROMAN LAW

reason he requires him to annul the vow, because her vow would take . effect after their divorce , and this might give his wife an opportunity to take advantage of him, or as the Yerushalmi 20 puts it ,,rn, iiiiot-t iilPii iiW1lC ct-tw n)7ii'W 7,ncw nwilo t-tm, in�'Jpo J:JN ,, • With regard to surplus earnings of the wife, which were the results of special efforts on her part, R. Johanan declares that R. Akiba would hold that it belongs to her, whereas the scholars would dispute this point. 2 However, if the husband gives his wife more than she needs for her maintenance the surplus belongs to him ?9:J? nmro ,mo but the worn out garments belong to her iiWN? mt-t?J ,mo.m A new rule reported by Raba2 was laid down that a person may refuse to abide by a law made especially for his benefit, ,, 1'901W , r 1u:, C'o:,n mpn::i 'fV!)t-t ,� ,r.J,t-tii . It was in harmony with this principle that Rab declared that a woman may say to her husband, I do not wish to be maintained by you , and I do not wish to give you my earnings21 3 iiWN ii?i:,, nw,v 'J'N1 n'JH'J 'l'N ii?)7:J? ,c, , . Rab would accordingly interpret M . Ket. V.4 as follows : If a man dedicates his wife's earnings to the Temple she still has the right of maintenance out of her earnings, either because he cannot support her (n'lH'l i1l'NW::l) or he could maintain her (n'm'lJ ) but she refuses. 4 Resh Lakish on the other hand , attributes to R. Meir, the view that a husband may compel a wife to give him her earnings ii'i' iiW)70 ?)7 ii.e,i:,', ',,:,,w 7mo and be supported by her. There is also a view · that the husband may say to his wife : keep - your earnings, but support yourself" provided she earns enough to live on. 2 1 5 As for the earnings of a slave, every thing that he naturally 9

10

12

21

Ned., 1. c. ° Ket. 66a, cf. Tosafot, 1. c., s. v. Ni11. Ket. 65b. Ket. 83a and parallels. 3 Ket. 58b, cf. also Tosafot Ket. 59a, s. v. NCtv. In the Middle ages it was not uncommon for wives to make business their career, in which the law held that the profits belonged solely to them, cf. Beer Heteb to Eben Ha­ Ezer 80. 1, note 1 , who cites the Responsa of ti•,nc, part I I , Hoshen Mishpat 87. 4 Cf. Tosafot Ket. 58b, s. v. 'NC and Tosefta Araki1,1 IIl.8. s Ket. 70a-b, Git. 12a, and Tosafot Ket. 47b s. v. ilp•n. 209 21

211

212 21

21

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produces belongs to his master, for whom he works without pay21 6 Still there is a sense in which one may speak of the earnings of a slave. Thus a master may say to his slave , " Keep your wages for your work"and "support yourself " j'1' i1tt'VO N� j'nmro, and he is permitted to do so even if his wages are in­ sufficient to maintain himself (Np:,o N?:11) . The same rule would apply to a slave who was exiled to a city of refuge for having committed involuntary homicide . 2 1 M However if this slave earned more than he needed for his keep , then the surplus (i1.!:>1Vi1) goes to the master. However in times of drought if a master makes such a pact with his slaves , R. Simon ben Gamliel holds that he has to give him adequate maintenace ('lOJi:,) or emancipate him. Whereas the sages were of the view that the master could make the same arrangements as in normal times , for people who have mercy on free men will have pity on slaves. 21 1 If one dedicates his slave to the temple , he continues working and supports himself out of his earnings , for the master only intended to present the value of the slave to the sanctuary21 8 (,,o, N?N W'1Pi1 N?W) . I f one dedicates the hands of his slave (i,:iy ,,, ) to the temple , Rab says , then the slave must borrow money to maintain himself, continue working and pay back his loan , 2 1 9 s,ii:,, mu,v, ?:>iN, m,, ,:i>-m imN . 216 As he was the property of his master •up um, cf. Maimonides o•,:::iy IX. 5-6. A similar rule is found in the old Spanish Law : Todas las cosas que el siervo ganare par qualqu·ier manera que las gane, deben seer de su senor, cf. Las Siete Partidas, IV. 2 1 , 7, ed. by Gorgorio Lopez, Paris, 1 847. n6a Cf. Gulak, Tarbiz, I , no. 4, p. 2 6. 21 1 Git. 12a. R. Johanan remarks that if one cuts off the hand of a slave belonging to another, the damages for the loss of work and medical expenses are paid to the master, and the slave is supported by charity, Git. 1 2b. Ulpian says if the master had cared for the slave who had been wounded by himself, he is indebted to his master for the expenses incurred. Sed et si a se vulneratum servum dominus curaverit, sumptum nomine debitorem eum domino puto ef­ fectum, D. 1 5 . 1 .9.7. 218 This is the view in a baraita in Git. 38b, Rab holds that in this case the slave goes free, cf. Tosafot Git. 1 2a, s. v. ioN. 21 9 G it. 12a. According to another statement of Rab in Git. 1 2b, if one dedicates the hands of a slave to the Temple, he may continue to work and support himself out of his wages, cf. also Maimonides (Hilkot Arakin Vl . 1 9)

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R. J eremiah 2 2 0 raised the question , Suppose some one dedicates the earnings of his slave (rr:iv ,,, iTWVO ) who happened to be a hunter, to the temple. The answer was as follows : If one dedicates his slave to the temple, he is sacred , but his wages are not (l' � ,n ,,,, iT1V3)01 rv,,p t-tiiT) i. e. the master must give his value to the temple ; and the slave continues to work and to support himself. If he dedicates the earnings (ii:is, ,,, iTW3)0) of the slave, the latter is not dedicated but his earnings belong to the temple. 22 1 rv,piT ,,,, mvs,o, p � ,n t-tm. 2 2 1 a Under these circumstances , the likelihood that the slave could save up any money for himself was very slight, but the possibility need not be ruled out. It is perfectly natural , that the sons, slaves and wives should receive allowances in view of the fact that they could not keep their earnings. In cases of wealthy families where each member could possess a home of his own , a nice legal problem was created in connection with the ritual of Erub. Thus the Mishnah 222 lays down the rule that if several brothers ate at their father's table, but slept in their own houses, within the same courtyard, each of them requires a separate Erub. I t is quite clear, a s the Talmud recognized, that the underlying principle is that the person living in a separate domicile required a special Erub. Now what constitutes a separate domicile with respect to Erub ? Rab223 held that the place where one eats his and l"!lll/1;) en, ad loc. The nv ,,,l,, cites a responsum or R. Meir of Rothenburg to the scholars of Lunel. 220 Yer. Ket. V. 5. 221 Tosefta Ara.kin 1 1 1.8. ma If one dedicates his property to the sanctuary, the clothing of his wife and sons are not included ,,l:::i m o::,:::i N?1 uiwN m o::,:::i ,, l'N • • • 1•0::,J nN w•,pl;)i1 (M. Arakin V I . 5 ) . For clothing as part of the peculium of the slave, cf. Pomponius, D. 1 5. 1 . 2 5 and Marcianus D. 1 5 . 1 .40. For clothing as part of the peculium of the filius familias, cf. D. 15.3. 19. 222 Eru bin VI . 7. 223 Erubin 72b-73a, R. Jonah knew of the controversy between Rab and Samuel on this issue, but had no certain tradition as to which scholar was the author of which view, in ? N11;)1l11 :Ji J'l?DnN ,,,N m1• •, N'i1 1:::i•N ;,,,, ip• v Ni. ,,,N J Nci Ni icN JNC 1•vi• N?i i1l'lll cipc:::i icN ,n, Jn'!I cipc:::i icN, Yer. Erubin VI . 1 ; 01£> has been · correctly explained by Jastrow in his Dictionary s. v. oi!l , cf. . Bickerman's forthcoming article, "The Maxim of Antigonos of Socha, " in the Harvard Theological Review.

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meals is his domicile (Nm, cipo) , whereas Samuel was of the opinion that the place where one sleeps determines one's domicile (m'? cipo) . Rab accordingly explained the M ishnah as referring to a case where the sons received allowances (oi!:I '?:ipc,) from the father but ate in their homes. The M ishnah passes over in silence the problem where the wives and slaves receive allowances. This question is taken up in the baraita and forms a subject of dispute between two scholars. The case in question concerns a man who has five wives and five slaves receiving allowances from him (oi!> C'?:ipc) , and each living in a separate dwelling, but within the same court. R. Judah beR Bathyra held that the wives did not need a special Erub, whereas the slaves did , R. Judah hen Baba said the rule is vice versa. The principle in dispute between the two i llustrious scholars centers on the question whether a slave is more attached to the domidle of his master224 than a wife is to that of her husband. While the question of domicile in this context is used in a limited sense, to determine a ritual law, still it may not be out of place to recall several rules concerning domicile in Roman Law which determine the larger and more important problem of citizenship, which curiously parallel and contrast some of the Jewish rules. In Roman la,1ir a freedman , but not a slave pos­ 1 sesses the privilege of domicile. 22 s Ulpian makes it clear that a son under paternal control can have a domicile226 and furthermore he can establish it, not only where his father has his, but any­ where else. 2 27 And from Papinian we learn that the mere posses­ sion of a house in another town does not create a d0micile.:22 s In ancient times a welcome source for the acquisition of property was the finding of lost goods, which were not returnable to the original owner. 229 Now the general rule as set forth in 22s 4 Cf. Rashi, Er. 73a, i•inN J'Jflll:)l Jl'Ntll, Cf. D.50. 1 .22 pr. Placet etiam filios familias domicilium habere posse. D. 50. 1 .3 . 22 1 No n utique ibi, ubi pater habuit, sed ubicumque ipse domicilium con­ stituit, D. 50. 1 .4. 228 Sola domus possessio, quae in aliena civitate comparatur, domicilium non facit, D. 50. 1 7. 13. 22

226

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D ue to the frequency of brigandage and wars the people would hide their

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the Mishnah is as follows. What is found by a man's son or daughter that are minors, or by his male or female gentile slaves, or by his wife, belong to him (i?rz, ,,� •i;,) . 23° With regard to the title the minor possessed to goods found by him, the Mishnah records the following. The law of theft applies, in the interest of peace (c,,w •:,i, 'J!)O) to objects found by the minor, R. Jose maintained that it was statutory theft (i10) ?U) . 2 3 1 This is in harmony with his view that a minor could acquire things according to Biblical law (i1":lf i1'? l1'N l � P Ni'l"1iNi0) 23 2 and hence he held that if a man was working in the field of another, either as a mere laborer or as a sharecropper, his son and his wife may pick up the gleanings. I n the Talmud the principal discussion centers on the origin and reasons for the rules of the M ishnah. With respect to the son there were two opinions. Samuel 23 3 explained the view of the M ishnah was that the son had no right to acquire lost objects even according to Biblical law (Nn",iNiO il'!Q!)J? il":lT i1'? 11' ? l �P) because when a young son finds something he picks it up with the intention of bringing it without delay to his father (i1S,!l1.:l!l1 ,,,::i inNo u•Ni i•::iN ?�N n�•,o i1N�ioro) . According to R. Yohanan , things in the soil , cf. the statement of Samuel , Money is only safe when hidden in the ground, vp,p::i N'N i,,,Otll tin, l 'N c•D6:::J, B. M. 42a. With respect to the rules concerning lost property, there is comparatively little in Roman law, cf. H�rzen in S. Pinneles, Questions de Droit Romain, Paris, 191 1 , pp, 39-46. For treasure trove, cf. Buckland, Textbook of Roman Law, 2nd ed. , pp. 2 1 8-22 1 and G . Hill, Treasure-Trove The Law and Practice of A ntiquity. London, s. a. 2 3" Cf. B. M . 1.5, Ket. IV.4 and Niddah V.7 . , 23 1 Git. V.8. The first Tanna maintained that it is theft according to rabbinical enactment in the interest of peace. Whereas R. J ose seems to hold that it is of Biblical origin. R. Hisda however, was of the opinion that even R. Jose considered it a rabbinical statute cn•i::i,o 111:)l , rl , Git. 61a and parallels. For the term Breach of the king's peace, cf. Pollock and Maitland, History of English Law, vol. I , p . 22. 232 This interpretation deviates from the view expressed by R. Hisda, who was forced to explain cn•i::i,1:) 110l , ll because he felt that R. J ose would otherwise be contradicting man y statements in the Mishnah, or as Tosafot B. M . 1 2a, s. v. 'N p ut it 1 1,n piDii 1 •p1D, I11'ltllO i10:::JN •01• •:ii l''D N' Nonoo, 1':JN ,,:::, J :J ,, n1'ltll0 in,,:,,, ,::i pni1 j? 1!l:J 'I1"0i 'ltl.' 1tllVO n:::,oo,,. 2 33 Cf. B . M . 1 2a and Tosafot I. c., s. v. l;,Nu:,rv. ,

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the rule was instituted by the rabbis in · order to prevent the creation of hard feelings between the father and the son who was continually supported by him (il:i,� ciwc) . Consequently, R. Johanan interpreted minor l �i' in this context as a son who was supported by his father, no matter what his age (?� 7100, ,,,l l�i' mr ,,:i� 1n,w) . 2 3 4 Likewise with respect to the daughter under age the view is expressed that what she finds must be given over to the father in order to prevent ill feelings between them (il:i,t-t ciwc) . 23 5 R. Zaccai of Alexandria2 3 6 posed the following question : Sup­ pose a daughter inherited a field from her maternal grandfather, and in it was discovered a treasure-trove (none il?!lJtv ilt-t,�o il,w) . Is the treasure-trove considered like the finding of any other lost obj ect , and therefore would belong to the father , or is it regarded as usufruct (n,,,!l n',,:,t,t:, ) in which case it would belong to the daughter. 2 3 7 However, what an orphan girl under age finds belongs to herself, although she is being maintained by the estate of the deceased. 23 8 While the scholars agreed that the rule requiring a woman to hand over found obj ects to her husband2 39 was rabbinical , they differed as to the reason. One view was that it aimed at prevent­ ing · bad feelings between the husband and wife , (tot?, ,:J,il ,:, Cf. B. M. 12b, a similar view is attributed to R. J ohanan in Yer. Ket. Vl . 1 , B. M. l.5, 1,1t1 1MN'�1.) li1':::lN, 1''1!>� 1'i1 ,:::iN li1':::lN' 1''1!>� ll'Nlll:::l • . 23 5 Ketubot 47a, Tosafot Ket. 46b, s. v. 'N.::)I says that the rule is rabbinical i1:::l'N C1!llr.) and has no Biblical sanction, Rashi to B. M. 12a s. v. in:::i, 1l:::l ntt•�I.), states that it is Biblical and is derived from the verse i1':::lN n•:::i n•,i�ll:::l which is interpreted n•:::iN, c•iil)l M:::llll ,.::). This view of Rashi is rejected by Tosafot B . M. 1 2b, s. v. •:ii in the following passage, ,,11 iT.::)11.)0 i1l'N1 nil)l ,,•!>N i!n:::i, N1iTi1i iT'ill)l:::l :::i•n.::), Clll/1.) tui'!>lll ,.Ill,:) N,,, • • • iT:::l'N C1fllr.) iT':::lN' i!MN'�I:) i1':IN 1n,ru :::i•n.::), Nli! c•iil nrui!>iT:::l. 236 Cf. Yer. Ket. IV.6. 2 7 3 For the Roman law concerning the finding of a treasure by persons in aliena potestate, cf. D.41 . 1 .63 pr. For usufruct, cf. my forthcoming Hebrew article on "Usufruct in J ewish and Roman Law," in the Jubilee Volume in 23 4

Honor of Prof. Simcha Assaf. 23 8

Ket. 43a. Whether a wife was required to give her husband an object found by her is a matter of controversy between R. Akiba and the scholars as is recorded in a baraita in Ket . 6Sb-66a. 2

39

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i1:l'N ii? 'ii1n) ,24° R: Jose held that the rule s�ught to circumvent the machinations of a shrewd wife who might stealthily take some of her husband's goods and allege that she has found them (N'il ilN'�r., nir.,it-ti n,s,:i ,o.:,J nni:ir., t-tnn N?tu) although she would not be able to claim them as gifts as it would be bruited abroad (i1N'�r.,', tot�,, ,,p l'Ni ·mnr.,', tot�,, ,,p) . 241 Now objects found by a gentile slave belong to his master, in contradistinction to the Hebrew bondman or bondwoman who may retain for themselves whatever they find. R. J ohanan explained the reason as follows : In case of the bondmen , the master cannot change the nature of the work they are supposed to do for him , whereas he can also do so in case of gentile slaves. 2 4 2 The question was raised : Suppose a slave picked up a lost object and said, I am doing it with the intention of acquiring it for myself and not my master il.:,rt-ttu ,,, ',s, ir.,t-ti i1N'�r.)il nt-t il':llil ,:i, t-t?i 'JN il:l does he or his master acquire it ? After some discussion the conclusion is reached by R. Zera that it belongs to the master a fortiori if one compares the slave's rights with that of the wife ir.,it-t nt-t int-t ns,ir., n.:,r.:, N'i1tu ct-t nr., N'il ptu ',.:, t-t?i ,:is,il il.:,r 1.:,tu ',.:, tot? ns,,T.) il.:,r.:, t-tiiltu 1,,.:, n,s,:i il.:,r iltuNil n.:,r j1.:,p . The Talmud assumes2 43 that lost objects found by a Hebrew bond woman under age2 44 belong to her father if he is living. This is contrary to the express wording of the Mishnah ('iil Jil?tlJ ,,t-t) .24 5 Another grateful source of income were gifts. Now let us turn

,:i,

,,.,�SJ

B. M. 12b, Yeb. 90b, Tosafot Ket. 66a, s. v. nnr:t 1 l't:1, R. Haggai (Yer. B. M. I.S, Ket. VI . 1 ) says practically the same thing nr,r,p citoz:i. 2◄ 1 Yer. B . M. 1.5, Ket. Vl . 1 . Tosafot Kid. 24a have a different reading in Yer. Ket. VI, which they quote c•::iinr ::imn NIJto il?}'::l? iltoNil nr:t'l'I:) itt:1 'J.!llJ 'MNl'IJ i!N'l'I:) iz:ir:tn,, 2 42 Yer. 1. c., Rashi (B. M . 12a) gives as the reason the fact that the pos­ sessor of Gentile slaves actually owns their bodies n•z:i,,v ,, •up i.!lll '1ilto cn,mnm ::i•n:::,,:i. For the Roman law concerning treasures found by slaves, cf. D. 4 1 . 1.63. 1-3, Buckland, Slavery, p. 343, Salkowski, Sklavenerwerb, p. 120. 2 43 B. M. 1 2a. 2 44 A Hebrew bondwoman can only be a minor, for she automatically goes free when she reaches her majority (Kid. 1.2) . 24s B. M . I.5. 24 °

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our attention to this method of acquisition with respect to the persons in aliena potestate. In the Mishnah 2 46 the rule is laid down that one may acquire gifts in behalf of a minor (l�i'i, l'::n). Since a minor has no power (1' ) to acquire gifts for himself , the rabbis enacted that others may receive them in his behalf. 247 In amoraic times there was an extension of the law in favor of minors. Thus Raba ruled that a minor may acquire gifts for himself (,0�5,1', n:m ) , if he were intelligent enough to throw away a pebble, but keep a nut, when it was given to him.2 48 But while he could acquire gifts, he still was not able to transfer gifts to another person. Hence R. Zera249 advised that a person should not present a Lulab to a minor on the first day of Tabernacles, because he himself has performed the ritual, otherwise he will find himself in a position of using a Lulab that is not his own, for a minor can acquire a gift, but can not transfer it250 ('li'O Npu•, �lp N', '1li'N 'li') . With respect to gifts to a wife, the Tannaitic sources do not mention them directly. What the Tannaic law was, may be deduced from the following rule in the Mishnah, 2s 1 which deals with a special case where a father wishes to bestow a gift of money upon his married daughter but it so . happens that his son-in-law is forbidden by vow to derive any benefit from , him (im,no i1Nli1 ,,,on) . In this case he may say to his daughter : This money is given to you as a gift on condition that your husband shall have no right over it, and that whatever trans­ actions you make with it be at your order 7, C'l1Ml 1?Ni'T n,5,10;, ,,n 1'!:l:l mrm, m�11m nNw i10 N?N 1n:i mw, 7,,5,1:::i, Ni'!' N?W ,:i,:i, mnc:i . 46 B. B. IX.7. 2 47 Cf. Samuel b. Meir, B . B. 156b, who also explains R. Joshua's view ?lil? ,.p iioN Ji!!p? to the effect that one may acquire a gift for a minor on the basis of the principle ,.l!>::1 N?tv ciN? )':ll, cf. also Tosafot, I. c., s. v. ]':Jr who explain R. Joshua to say l�P-� )':l r pt-t. 24 8 Git. 65a, cf. Tosafot, I. c., s. v. ,,,�, who noticed the contradiction between Raba's statement and the Mishnah, and furnish two solutions )'n::io J"N1 J'!>'?n J'lp::i 'Cl 'N JN:,o nin!>::i cm,, ,·,, cf. also Yer. Erubin VII .6. 24 9 Sukkah 46b, cf. Tosafot Git. 39a, s. v. c•l�p. 2 5° As Rashi, I. c. , says Nli1 nv, ,::i lN?"T, he has not reached the age of dis­ cretion. •51 Ned. XI.8 . 2

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Rab maintains that the father may give his daughter money only on the terms expressed in the Mishnah , whereas Samuel held that the gift is valid even if he makes the condition that she may do with the money whatsoever she pleases2s 2 iPN i?'!>N ?V:1 1ii1n' mp N? '!LIV '�inw i1P . From this passage, R. Zera2s3 deduced that R. Meir held the view i1?l7:I i':l i1� i' . There are three instances in Tannaitic sources which seemed to imply that the wife had independent property of her own , in contradiction to the principle what a woman acquires belongs to her husband (i1?l7:I mp i11L'N i1mp!L1 i1P) but the Amoraim ex­ plained that the wife received the money as a gift on condition that her husband have no control over it2 54 ?V i1? iPNi in� 'JP�i li1:I nilL'i 1'?V::l? l'NIL' mo. First there is the case of the woman who took the Nazirite vow and set aside sacrifices from her own property. 2 55 Secondly, R. Jose ben R. Judah says, that a rebel­ lious son is not punished in the summary way indicated in Scripture unless he stole from his father and his mother. 2 56 This passage shows that a wife could have property of her own. Thirdly, there is a rule transmitted in the name of R. Meir2 57 that a woman may redeem the second tithes without giving an additional' fifth , if she is redeeming the tithes with her own money (i1'i'i i1L1370, i1i'i 'TH::l N?Ni) which is evidence that a woman can acquire property of her own. 2 s 8 If the husband presented his wife with real estate, the gift is absolute and the husband has no right to the fruits. This view goes back to Rab and R. J ohanan and was considered as a fixed rule in the time of Raba. 2 59 If a stranger presents a gift to a Ned. 88a,' cl. Maimonides, ;in :,r, 111. 14. Cf. Ned. 88b, Yer. Ned. XI .8, Yer. Kid. 1.3. 5◄ For the meaning of ,,, cf. Yer. Git. VI II.1, ,�,N 1,:, nN np•1 ?NVOtv' •, 'ln 1mrv,0 Ji•o me N?N np? ,,,,, •:,1 Jll1N ,v, ,,,0. The Talmud explains in Kid. 24a that the money was given to the woman with specific purpose to redeem the tithes. 55 Nazir 24b, Yerushalmi IV.4. 5 6 Cf. M. Sanhedrin VIIl.3, and Babli 7 1a. 2 57 Kid. 24a, Tosefta, Maaser Sheni IV.4. 58 Cf. R. Tam (Tosafot, Kid. 24b, s. v. �?N) who changes the reading of the text. 59 Baba Batra 5 1b, cf. also Tosafot, I. c., s. v. mno:::i, who explain why 2 2

2

2

5

53

2

2

2

2

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,:i, ,,:,

married woman , the principal belongs to her , but the h usband enj oys the fruits· il!V�il ilri:ir 1:19 ,, i':19 ,,�o , ,, :::ll ?V 9� m ,,.e:, 11?':iN N?N i1'?V l'NtV iiiio ii?V:J ii:ir • 260 I t is this rule which is variously formulated as il?V:1 ,,:, iitVN i' 261 or iiri J ptV iiO ii?V:::l mp iitVN 262 or ii?V:1 N?:::i ii!VN? l ' J P l'N 263 or ii?V:::l ii:> T il!VN ii!1:> T . 2 64 With respect to the right of slaves to receive gifts , there is a controversy among the Tannaim . According to an ancient rule a slave can acquire his freedom (iO�V 11N mip) on the payment of money. 265 The question is who pays the money. R. Meir says other people pay the money directly to the master ('i' ?V 90:,:::i O' inN) for ·should the slave give the money it is as if he were transferring from his left hand to his right hand (NiiltV 'JE>O U'O'? i?NOIVO unu:, ) . 266 The sages say the slave can give the money himself to the master (iO�V ,,, ?V J:J O.:i::i) provided that he received the money from others. I t would : appear from the Mishnah that the dispute between R. Meir and · the scholars turned on the point whether a slave can acquire gifts independently from his master or not, as the Talmud 267 observed. Are we to assume that R. M eir holds that a slave acquires nothing apart from his master j ust as a woman acquires nothing apart from her husband ,:ii N?::l i::lV? l 'JP l' N il?V.:J N?.:J il!VN? 7'Jp l'Ni and the maj ority of scholars held that they could, However' there is another Tannaitic tradition that may be contemporary with the Mishnah , or may be later; which

,:i,:i

R. I lish objected to Raba's statement that the husband present to the wife the place where the Get was so that she may acquire it, cf. also Tosafot Kiddushin 24a, and Eben ha-Ezer 8 5 . 7 . If a man gave a gift in common to his wife and another man, it is valid, cf. Hoshen Mishpat 243, Beer Heteb, note 1 5 . For the Roman law, when a person gave a gift to a man intended for his wife, cf. D . 24. 1 .3 . 1 3 and D. 24. 1 .4. 260 Y er. Ket. VI . 1 . Maimonides, i1":ll, I I I . 1 2 , Tosafot Kiddushin 24.a I n Roman law, a slave could not give a gift to the wife of his owner, since he belongs (iure subjectus) to the master D. 24. 1 .3.3. 261 Ned. 88b. 262 Git. 77a, Naz. 24b, Sanh. 7 1a. 26a Kid. 23b. 2 64 Y er. Ket. V I . 1 , Kid. I . 1 . 26� M. Kid. I . 3 . 266 T . Kid. 1 .6 , cf. Yer. Kid. I . 3 . 2 61 Kid. 23b.

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modifies and supplements the opinion of the sages. According to one recension of this tradition , the gift to a slave is only valid if it is given to him with the specific purpose that he be redeemed ioN'i . Whereas another with it 268 ,:i N?N m,.E>, rmv, 7':, 1'Nll,I mo recension has it, that the gift is valid, even if given to him merely on condition that his master have no control over it269 (Nil ,o,N lil.:1 n,ll), 7:i ,, Nil' N?ll,I ilr �c:, 7':,) . I t is quite clear that the controversy between the Babylonian scholar R. Sheshet and the Palestinian scholar R. Eleazar, is based on the supplementary Tannaitic tradition available to them. R. Sheshet attributed to the sages the view that a gift made to the slave on condition that the master have no control over it, (i:i n,ll), 7:::i,, l'NW mo ?V) which is identical with the view reported in the Yerushalmi. 2 7 0 Whereas R. Eleazar, who main­ tained that in the opinion of the sages, a gift of money to a slave was valid only if made on the specific condition that he go free, mi'n? ,:::i t,t�r,ll,I mo ':,3.7 was following the view of the Tosefta. 2 1 1 R. Jeremiah asked the question, Suppose the master gave money to a third party on condition that he redeem the slave , would the slave go free under those circumstances (,:i,, int-to N? imt? ,:i,o Nil) ? To this R. Zera replied that even under these conditions the slave acquires his liberty (inN? ,:::i,o ,,,.E>t-t ) . The law would exclude the case where the master gave the slave money2 1 2 to redeem himself (,o�v, ,:::i,o N'�,c iilo). If a proselyte dies without heirsm and leaves behind an estate including slaves under age, there is a dispute as to the disposi­ tion of the slaves. According to one view, since the estate and

,v ,,

6s T. Kid. 1 .6, cf. also the reading of Ibn Adret. • 69 Yer. Kid. 1 .3. 2 1° Kid . 1 . 3 , cf. Rubin, Das Talmudische Recht, I , 1920, p. 1 16, note 18, and Gulak, Tarbiz, I , no. 4, pp. 24-25 . Under the old Visigothic law, a slave could not redeem himself with his own money because it belongs to the master, cf. Visigothic Code V.4.16. 2 11 Kid. 1 . 6, cf. also Maimonides c•,:iv V.2. Cf. also R. Hai Gaon's explana­ tion (i:Joo, npo, ch. V, ed. Vienna, 1800, f. 12b-13a) 7tt•�l'tv me ?V H mnc 7',•;i ni, 1n', ;,:i 7tt•�1•1 , r mno 7:i, np•w •,:J ,01?:J ni,•n', 7:1,. 2 1 2 Cf. Yer. Kid. 1 .3, as it is correctly explained by R. David Frankel ad loc. m Git. 39a. 2

PECULIUM IN J EWISH AND ROMAN LAW

23 1

the slave become derelict property (ip!>i1) ,2 14 they acquire their own freedom (p iih 'J::J 1'-'�37 up) , whereas Abba Saul says, the person who takes possession of them first, acquires them p' rnr.,n 1n::i i1::)T 1 n::i . 275 If one bestows a gift upon a slave without any qualifying clause , it belongs to the master. 2 16 With regard to compensation for inj uries inflicted upon children , Scripturem rules that damages awarded for rape or seduction go to the father, but it is silent with respect to other kinds of inj ury. The M ishnah 2 78 lays down the rule that if minors are wounded the person who inflicted the inj ury, is liable. However if they inflicted inj ury upon others, they are not answerable. Now in case minors are inj ured the M ishnah does not state to whom the damages are paid . With regard ·to this point there is a controversy among the Tannaim in the baraitot. 279 If the inj ury were inflicted by the father, according to one authority, the father would be obliged to set aside a fund (n',uc, ) for the son equal to · the damages , if the son were inj ured ; 280 in the case of a daughter, no compensation would be necessary. Another authority maintained , that even in the case of a son no damages were available. I f a stranger inflicted inj ury upon children who were minors both son or daughter were entitled to compensation which would be set aside as a fund (ii',uo) . According to another view , in case of the daughter , the money goes directly to the father. 2 81 In view of the silence of the M ishnah , R. Eleazar 14 Cf. Ned. 43a ;ur,r:,.:::, ipDi! and Boaz Coh!;!n, 'N,.,11;,i •i:ivn r,.!)fl/1.):l tll1N'1 ip!li! in ,Niw• m,,,.,i, w,p10 •v,,., m,Do r:i1p' !,�,w;, New York, 1950, p. 98. 2 1s For he holds CCl'l7' n,:,rl;, ,, Ci!? l'H P'l!:li'- For the case of R. Judah of India, who was a proselyte, and left behind 'a slave under age, cf. Kid. 22b, and Tosafot, l. c., 24a, s. v. N:J'Nl. 2 16 Maimonides illn!)l ii".::)! 111 . 1 2. 2 11 Cf. above, p. 155. 2 1 8 B. K. VIII.4. 279 Tosefta B. K., IX.8 and Yer. Ket. IV. 1 (28) are in an unsatisfactory state as far as the text is concerned as was already noted by Nahmanides' nu:in,,., to B. K., ch. IX. David Pardo emends the text. 280 As Rashi well says, ,,,,., Hlr.m, ii'? •.:::,r N, u:i,. 281 R. Johanan who remarked i1l7'l'!l l?'DN would most likely agree with his view. For the meaning of V l'D = ilV'l'D, cf. Sanh . .Hb, B. K. 93a, 'lV�Dl 'l.:::)il 2

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asked Rab his opinion concerning the rule if a girl under age were inj"ured by a stranger. To this Rab replied that Scripture gave the father merely the rights to profits that accrued to her while she was still a minor c, ,,l'l n:iw N?N :lN? i1i,m, i1n:,r N? 282 indicating thereby that the damages should be awarded to the daughter. The patent contradiction between Rab and the baraitot283 was solved by Abaye who maintained that Rab admitted that the part of the damages which compensated for loss of work n:ito belonged to the father. With regard to the wife it is stated that as long as she is married, she does not pay any damages if she inflicted any damages, but is required to make good, if she is divorced. 284 As for the slave , the M ishnah rules that if a man wounded a slave belonging to another, he is liable on five counts , R. Judah says, he is excused from paying damages for indignity nw,:i to the person of a slave. The damages, naturally, are paid to the master. 285 If a slave committed damage he is not liable, but when he is emancipated he is answerable for his previous delicts.:i86 With regard to the noxal liability of slave there is an old contro­ versy between the Sadducees and Pharisees. 28 1

,:i,:1

a

,,r:i!l? mo ?V and B . K. 84a, jm c,po::i i:17ll: 11,,, Vll:!l nnn :17 :i:!l, and . Rashi and Ibn Ezra 2 1 .25. The Talmudic view on this subject is well stated by Maimon­ ides, Hobel U-Mazik, IV. 14, and in Hoshen Mishpat, 424.6-7. 282 Resh Lakish too subscribed to this view, cf. also Tosafot B. K. 8 7b, S. V . ii'? ic�. 283 The Amoraim (B. K. 8 7b) made a valiant attempt to reconcile the two baraitot which naturally represent two entirely different viewpoints. 284 M. B. K. VII I .4. 2 8s M . B. K. VIII.3, cf. Nid. 47a, ilntvi:i •c, •m ,, ii? ::l'il', il'liON::i p,:i ?Niorv. The Jewish law took a more humane standpoint upon the infliction of inj uries upon slaves than the Roman law, for the latter, cf. Gaius I I l .222, Institutes of Justinian IV.4.3, and B uckland, Roman Law of Slavery, pp. 79-82. 2 s6 B . K. VI I I .4. If a man says to a woman or slave go and steal for me, he is not liable, although the woman and the slave are not answerable, cf. B. M . 10b. Ulpian remarks that i f a son o r a slave commit theft, there i s a actio on the peculium, as it would be wrong for the master or father to be enriched by the theft with impunity (quia iniquisimum est ex furto servi dominum lucupletari impun e) D. 1 5. 1 .3 . 1 2 , cf. also von Tuhr, A ctio de in rem verso, 1895, p. 1 62 and M icolier, Pecule, p. 694 ff. 281 M. Yadayim IV.7, cf. Holscher, Der Sadduziiismus, pp. 30-3 1 . Finkel-

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The Sadducees say. We cry out against you , O · ye Pharisees ; for you say "If m y ox o r m y ass have done a n inj ury, they are liable , but if my male or female slave have done an inj ury they are exempt, now if in the case of my ox or my ass concerning which there is no commandment that I am required to perform (r,i,�6 Ci1::1 .::J"n 'J'Ntv) yet I am responsible for the inj ury they do , how much more must I be answerable for the inj ury , my male and female slave do , since I am obliged to perform certain positive commandments (n,�o Ci1::1 :i n n 'JNtv) 288 with reference to them. To which they replied , No. How can you compare my ox or my ass which have no understanding (nv, Ci1? 1 'Ntv) 289 with my male or female slave which have understanding (nv, Ci1? rv•w) for if I provoke hitn to anger he may go and set fire to another's stack of corn , it is I that must make restitution . 29° Now the question arises, can women , slaves or minors sell anything , in view of their limited rights in property. According to the M ishnah 29 1 it is permitted' to purchase from women woolen garments in Judah and linen garments in Galilee 292 and

stein in Harvard Theological Review, vol. 22, pp. 220-222, B elkin, Philo and the Oral Law, p. 9 1 , Revel in Horeb, vol. IV, nos. 1-2, 1937, p. 2. 288 T he phrase n,�o cn:i :l"n with the use of the prepositional pronoun and the accusative is quite unusual, but cf. Kid. 29a, ,',,o', u:i:i :i"n :iNn. The meaning of the Mishnah is that with respect to the slave there are certain positive comm'a ndments one is obliged to perform, such as to circumcize the male slave, or to immerse the female slave, whereas there is no corresponding commandment with regard to animals, cf. also ,N,ru' niN!ln and m1,mt mruo on this passage. 28 9 Note Ulpian's parallel observation in D . 9. 1 . 1 .3, nee enim potest animal iniuria fecisse, quod sensu caret, cf. 'Wylie in Studi Riccobono IV.48 1 , note 10, and Biondi, in B. I. D. R. 36 (1928), 99-126. 2 9° For the noxal liability of slaves, Buckland, Roman Law of Slavery, pp. 98 ff. and F. de Visscher, Le Regime Romain de la Noxalite, 1 947, pp. 195 ff. Papinian remarks, Sed saepe fit, ut ignorante domino incipiat minui servi peculium, velute cum damnum domino dat servus aut furtum facit, D. 15. 1 .4.3, cf. Micolier, Pecule, p. 1 78, note 4. 2 9 1 B. K. X.9. For the Greek law, cf. A. Balabanoff, Untersuchungen zur Geschaftsfiihigkeit der griechischen Frau, Leipzig, 1 905, and Volterra, Diritto romano, p. 226, note 2. 2 92 i1 i1i1':1 ,o� ,',:, is omitted in the Yerushalmi and Maimonides, M:l'll, VI.4, whereas T. B. K. XI.5 omits ',,1n:i 1nru!l ,',:,.

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calves of Sharon , 293 however, if the vendors say294 that they should be kept concealed it is prohibited ,,ot-t l 'C�il? ,,ct-tw 1,,.::,, . In a baraita295 other articles are mentioned. Abba Saul says a woman may sell things up to four or five denars in order to make a bonnet . for her head il�t-ti? ii�.:, n,wy':, , ,.::, . 2 96 Charity collectors may purchase 297 from women in small but not in large amounts. One may purchase from the wives298 of the · oil pro­ ducers, olives and oil in large but not in sma1 1 quantity. R. Simon hen Gamliel says one may buy olives from women during the midfestival 131,c:l 2 99 in upper Galilee, 3 °0 for some times a man is embarrassed to sell it at the door of his house, 30 1 so he gives it to his wife to sell. Once when Rabina3 02 came to Mehuza30 3 the women of the town placed before him golden chains and necklaces: So he . accepted it from them. When Raba Tosfa'ah asked him, Does not the law prohibit charity collectors from taking large presents from women ? He responded : to the folks of Mehuza it is a trifle as they are so wealthy. The title to property brought in by a married woman is always vested in her, and the husband merely has the right to usufruct. Similarly , if after her marriage she came into posses­ sion of money (C'O:il ii? i?Dl) or of fruits already plucked (n, i, D ypipil 10 l'Wi?nil) or of old slaves, the slaves and fruit are to be sold and land is to be bought, of which the husband enj oys the usufruct (n,i'D ,:i,t-t t-tim ypip lil:l np? ' ) . 304 Cf. Maimonides, i1:l'll, Vl.4. Cf. Boaz Cohen, "The So-Called Jiidisches Hehlerrecht in the Light of Jewish Law," in Historia Judaica, IV, 1942, pp. 145-1 53. 2 9s B. K. 1 19a, T. B. K. XI.5. 2 96 R ashi explains i'T!l:, as a veil ( 'l'V�) , but in Shah. 57b ,c� ?to MD:, he defines it as a woolen cap. 29 7 1'np1,. The Tosefta reads l'?�ll, and Maimonides, C"lV rmnc, 7 : 1 2 reads 1'np1,. 298 W e follow Rashi here who explains Ji'T'tul JC ]'np1,. 299 In T. ' B. K. XI. 7 J1'?Vi1 ';,,';,l:i ,v,c:i is. omitted. Some read �v,o:i instead of ,v10:i, cf. c•iD1c •p,,p,, ad loc. Jo Rashi says that olive oil was expensive in Upper Galilee. Jox: The Tosefta reads store, nun. J0 •· Who acted as a collector of charities. 3o4 M. Ket: VI l l .3, 5 . JoJ A city noted for its wealth. 2 93

2 94

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The law giving the husband the right of usufruct in his wife's property , gradually led to the rule prohibiting the wife from selling such property, otherwise, the purpose of the original law would have been defeated. The questions which were debated with vehemence in the academies were the following. Could a fiance exercise a veto over the sale of property acquired by his fiancee during their plighted troth . Beth Hillel held that she should not dispose of such property, but if she did , the sale was valid . 3 05 The scholars of the academy reasoned , as reported by R. Judah , that the Beth Hillel were too lenient, in view of the cogency of the argument : ' ' I f a man possesses a woman , should he not also possess her property" (il:l f' th iltoN::l il:ln ?'N1il C'O:ll::l) . 306 That is, how could Beth Hillel sanction the sale of the -property even as a fait accompli. To this R. Gamliel replied , as it is, we were reluctant to go as far as we did with respect to the rights of the husband over his wife 's property, and now you would embarass us further (cnNto N?N C'to1:l 1lN C'to,niT ?V C'lto'il Z'IN ll'1,V c,1,;:i1,;:i.o) , a01 R. Gamliel was of the opinion that if a woman acquired property before she was married , and disposed of it after she was married , her transaction . was valid , R. Hananah ben Akabiah reported , that the same objection was raised to R. Gamliel 's opinion as to Beth Hillel's view , and that R. Gamliel gave the . same answer. In any event, the prohibition of a woman to sell the property was reluctantly introduced by the rabbis, and only 3os M . Ket. Vl l l . 1 . For a case of il�'nn::,� and i:iv•i:i in Roman law, there · i s a good example in the Sentences of Paulus, I I . 19.2, Eorum qui in potestate

patris sunt sine voluntate eius matrimonia iure non contrahuntur, sed contracta non solvuntur, for this passage, cf. Accarias, Precis de Droit romain, I , 4th ed. , 243, note 3. The phrase in potestate patris corresponds exactly to :INil mw, :i ,

cf. M . Ket. IV. S, a n d il':IN n,rvi:i, Sanh. S la. 3°6 In a baraita the argument was , r "l N ;c,:i ni::,o , r intuN m ,nwN m �'Ni il ; r, :i ili::,o (Ket. 78b) . 3°7 According to a baraita the following answer was given : a man should have a right over his wife's property si.nce he has a right to property found by her, her earnings, and the right to annul her vows, which he does not possess with respect to his fiancee (Ket. 78b) . For here it is evident that the law prohibiting a woman to sell her property is later than the law giving the husband the righ t over her earnings and fou nd objects.

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gradually did the rabbis limit her rights. Consequently a �us­ band cannot claim title by usucapio (i!prn ) to the property of his wife , 3 08 nor a wife to the property of her husband, 3 °9 nor a father to the property of his son , nor a son to the property of his father. 3 10 With respect to sale by slaves and minors the M ishnah makes no allusion . However the Tosefta3 n lays down the following rules : One may not purchase wine , oil , flour3 12 and fruits from women, slaves or children (C'J�p) . Maimonides3 13 formulates the principle in the following manner : One may p·u rchase from women , slaves and minors only such things which are presum. . . ably their own , which they obtained with the consent of the owner (c'?3':li! nv,o li!?W lilW 1nprnw c'i:i, N?N) . It is permitted to buy from a son or a slave .who sells in the market place3 1 4 cno np'? ,mo piw:i ,�iorv ,:ivn p, piw:i i:,ow p:i . Presumably they would not dispose of wares in public without authorization or if did not belong to them. If a son or a slave transacts busi­ ness (1nm NWU) with the money of the father or . master, the profits belong to the father or master. 3 1 5 A son or a slave who J 08

M. Baba B atra 1 1 1 .3 . Since the husband is ordinarily entitled to eat the fruits, and even if he renounced his rights, his wife would allow him pi:, �,w. 3o9 Even if he designated one parcel' of land for her maintenance and she enjoyed the fruit of another piece of land for three years. J 1° For they are in the place of guardians to one another. However, if the son is no longer in the service of the father, or the wife is divorced, the rule does not apply, anci they are like any one else c,� ',:, lil '1i1. On the relations between parents and children in Byzantine Law, cf. A. P. Christo­ philopoulos, OXECTEtS 'YOPEWP Kai 'TEKPWP Kara. 'TO /3vran,ov o lKa,ov. Athens, 1 946, and Seidl , in Studia et Documenta Historiae et Juris, XV, 1 949, pp. 346-7. Jn B. K. Xl.5 with slight changes in B. K. 1 1 9a. 3ii Rashi explains that these products are usually sold by men, and women are usually not delegated to sell them, hence we suspect that it may be stolen from the husband. 313 Genebah VI.4. 3 1 4 T. B. K. X I . 7 . The j uxtaposition of son and . slave reminds one of similar juxtapositions of filius familias and servus which are so frequent in the Digest. M aimonides 31.s T. B. K. Xl . 2 , cf. Gulak, Tarbiz, I , no. 4, pp. 2 1-'-22 . (i!i•.:ic 30.2) writes : If a slave purchases, sells, or bestows -a gift, or a gift was given to him, the master has the option (illP?l/il ?l' 11,�il i•) to con firm the

,�rv:,

PECULIUM IN JEWISH AND ROMAW. -1.-A W

is eating in the home of his father or his master, may cut off (y�ip) a piece of bread (m,,i!>) and give it to the son or slave of his friend, without feeling any compunctions about stealing from the master of the house, this practice is sanctioned by custom (um 1:> ttJ ) . 3 16 So far we have been discussing the ethics of making transac­ tions with a minor, but are they valid from a legal standpoint ? The Mishnah3 1 7 expressed the law i n simple and terse form. The purchase and sale of movable property made by children are valid (l' � r,� r,o:i i:,oo 1 i:,oo, npo 1 npo n,r,iy.E>i1 ) . To this the Tosefta3 18 adds, but the rule does not apply to immovable property. In the Talmud several questions are rais�d regarding this rule. First, how old are· the children m�,Y.E>i1 ?3 1 9 To this there are three views, R. J udah said : n,r,iy.E> refers to children of six or seven years, R. Kahana · said , seven or eight, and in a baraita, the view was expressed nine · or ten. The Talmud concludes that these authorities do not differ, for it depends upon the intelligence of the individual child. J 2 Secondly, R. Johanan3 2 1 0

acts of a slave, (i•rvvo C"p?) in which case they are valid, otherwise his acts are invalid. The master may confirm or repudiate his acts by a mere state­ ment, and does not require to execute a symbolical kinyan, ,:::i,:::i c•i:::i,:::i, c,,.:i ll0.0 nup, ,,,� ill'Nl 1, r,:::io 11:t J11Ni1 C"pCrv Nli1. 3 16 T . B. K. X I .4. Slaves could sell the remains of a banquet for profit, i;f. Duff, Freedmen in the Early Roman Empire, p. 1 6. 3 1 � Git. V.7. 3 18 Git. V. (1 1 1.)3, p. 328. R . Si_mon hen Gamliel adds N?N n,r,1s,D i ioN N? i111i1::l. 3 1 9 The Yerushalmi (Git. V.8) gives the etymology of n,r,1S,Di1. as N"iD but read N"1D = ?raLo lov. The Aruch (ed. Kohut) Vl.388 renders it N•i•E> (?ratOEs) C'lt,p c•is,ll C'l::l ' •!> and so Steinschneider, Fremdsprachliche Elemente im neuhebri:iischen, p. 22. · For th� us�: of the term in legal texts, cf. Beauchet, I I I , 506-507, and Marro4, Histoire de i'Education dans l'Antiquite, p. 148, note 1 . J astrow incorrectly derives n,r,1s, D from t,lD talker:s, this reminds one of Gaius' statement, · Pupillus licet ex quo fari coeperit, recte stipulari potest, ·. D. 45. 1 . 1 41.2. 3 20 Git. 59a. In Yer. Git. V.9 explains ni�lVD as nv, ,:::i rv•rv pun. 3 21 This is also found in Yer. Git. V.8, Maiµionides (;,i•.:ic 29. 1 ) paraphrases R. Johanan's view as follows : According to Biblical law, the sale and purchase effected by a minor are invalid, but the scholars enacted that a minor may make a valid transaction in order to maintain himself l�Pi1 i1'i1'fll llpn c•o.:in ,,,n •i.:i ·c ,wo J'C"P i•rvvo, 1nm ttrvll.

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voiced the opinion that the rabbis expressly legalized these transactions of the minor , because of situations where he might be on his own, and would be at his wit's end to support himself (i"n ,,.:, c,rv0) . The . latest Babylonian Amoraim3 22 decided also that a gift of his inter vivos or morNs causa was also valid . But a slave could not make a will, nor transmit any property to his son as an inheritance. 3 2 3 R. Haninah 3 2 4 remarked that according to the customs of the world (c,,v:irv lim:i) 3 2 5 a slave may not make a will (o,a0r,Kr,) but only a freeman may do so.J 26 If a master borrowed from his slave, and then emancipated him, or a husband from his wife and then divorced her they 10 m, have no right to claim it back32 7 iitvili iitv�ii 10 ,,,nrv, c,,.:i Jii? 1'�. According to Rashi, the theory underlying this rule is that this . transaction was no bona fide loan , although the master wrote a bond of indebtedness and secured his property against the loan , because the man merely wished to discover how much

,,,31

,:ivii

3 22 Abaye was still undecided on this point. In Yer. Git. V.9 we read that every one agrees that the gift of a minor is invalid, lll'H mnl.) W'H in• •:, il.)HllV c•l.):,n ,,:i, iJlnl.) t�i' mnc l'Hl illnl.), cf. also Shebuot 42a, ci',:, l�i' m•m l'H. For the rules concerning sales by minor in later Jewish law, cf. Hoshen Mishpat 235.1 et seq. , for slaves, 235.24 , and for women, Eben ha-Ezer, 85 and 90. 32 3 Cf. ps. Rashi to Nazir 61 b mplll i'!I.) ',:,, Ci'l'l:i', w•iii'l', ;,', m n,,n::i !l'HIIJ ,g', ,::i, mp ,:i v, and Tosafot, 1. c., s. v. 'H observe ,, Jn'lW inH ,:iv w•,,I.) !'HIV 11.):,!l) ,n,H ;mp 1l'Nlll ,::i nllVi ,:i,, !'HIV nl0 ',31 illnD::i. 3 2◄ Cf. Yelamdenu quoted in Yalkut 1 . 1 57 . 325 In this passage c',1 31:iw li'!il::i i s equivalent to ius gentium. . 26 T 3 he first part of this observation by a Palestinian scholar of the 3rd century betrays familiarity with the knowledge of a Roman rule. For Pom­ ponius (D. 2 8. 1 . 1 6 pr. ) informs us that Filius familias servus alienus . . • testamentum facere non possunt and similarly, to the same effect, Modestinus says (D. 28. 1 . 1 9) of the filius familias and the servus that "testamenti faciendi facultatem non habuerit." This rule was incorporated in the Canon Law which reads : Servus testamentum facere non potest, and Servus enim testamenti paginam condere non potest, c. 5 . C. 1 3 qu 2 , ed. J . H. Boehmer, Halle Magdeburg, 1 747 , I . p. 612, cf. also the Decretals of St. lvo XVI . 1 1 1 ausu temerario molitus fuerit condere paginam testamenti, cujus omne peculium ecclesiastico iuri legibus non du.bitetur obstrictum (Migne, Patrologia Latina, vol . 1 61 , p. 936) . 3 2 7 B . B . 5 1 a, cf. also Ket. 28a and Gulak, Tarbiz, vol . I , no. 4, pp. 22-2 3 .

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money the slave or the wife were absconding ("i?l? p'iONi citllo 'V:li Nm ' 1H) . It is an incontrovertible fact that a person will avoid at all costs the bitter experience of becoming a borrower (in?O tll'N? in? ,:iv il'IZl!)J t,,,,IZI, i1'? Nn'J N?i) . Neither did he have the intention to return to the lender after the emancipa­ tion or divorce. M aimonides3 28 was of the view, that -all property of the slave was automatically his master's, whereas all the money in the possession of the wife is assumed to be the husband's unless she can prove it is part of her dowry (N'JiiJ) . R. Solomon ibn Adret maintained that if the money which was lent was not hidden (l'Jio� P'NIZI rnyc) then the borrower was obliged to pay back the loan , for by making this loan , he acknowledged that it was their property.32 9 This right of property carries with it a correlative right to act as an agent of some sort where money transactions are in­ volved. I n two cases of religious law, slaves and minors are . barred from acting as agents (i1:>TC) in which they would· play a fictitious part in order to facilitate a religious transaction or a ritual matter on the ground that their hand would be like his hand , i. e. they are an extension of the personality of the father or the master ,,,:, li'lll 'l!)C . The first case deals with second tithes ('llll illlyc) . According to Jewish . law, a man who redeems his second tithes must give an additional fifth , 33 0 whereas one who is not the owner is exempt from this burden. Now this rule may be bypassed if the owner of the tithes gives some money to his adult children , Hebrew bondman or bondwoman , as a gift in order to redeem the second tithes (nr 'llll illlyc i1i!)i ,,N .n,yc 7''il) . However he can not use this subterfuge by giving the money to his children who are. minors, to his Gentile slaves , male or female , because their hand is like his hand (,,,:, li'W 'l.EJC ) . 33 1 Whether his wife J• 8

Malveh we-Loweh, I l .8. Quoted by Vidal Tolosa to Malveh we-Lowek I l .8, cf. also Abraham di Baton, ad loc., and Bezalel Ashkenazi to B. B. 5 1a. 33o Cf. Lev. 27.3 1 , Sifra ad loc., M. Maaser Sheni IV.3, Tosefta IV. 1 . 3 3x M. Maaser Sheni IV.4. J• 9

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may be utilized in this transaction ·as a go-between , is a matter of dispute among the scholars.JJ 2 The second case is purely a ritual matter. In Jewish law carrying in an alley on the Sabbath is prohibited. But this rule can be circumvented if the residents of houses belonging to the same alley contribute j ointly to a meal shared in common on the Sabbath, in which the alley is, by a legal fiction, con­ sidered their j oint property. 333 The ritual requirement can be simplified to the point where only one of the occupants of the alley sets down a jar on the ground containing some food and says : This belongs to all the residents of the alley. Now this person may designate his own adult son or daughter, his Hebrew bondman . or woman, or , his wife33 4 to act in his behalf (il:> ro ) 33 s but he cannot designate in this capacity his children under age , or a Gentile slave, since their hand is like his hand33 6 ('J!HJ ,,,:, Ji'W) . Tosef ta, Maaser Sheni IV.4, Kid. 24a. M . Erubin VI I l .6. 33 4 The person so designated obtains possession of the food by lifting i t up just a little above the ground imv 1, ::, fit-ti! JI;) 1il':lll;), cf. the baraita in Erubin 80a and Tosefta I X (VI ) , p. 148. Rab J udah maintains that the food is lifted up one handbreath, cf. Erubin 79b and Tosafot,, 1. c. , s. v. 7 •,� and parallels, who point out that this rule is an exception. 335 The term il::>11:) as is used here in the special sense of acquiring something by grant in behalf of another, in other words, this is a form of agency where the agent acquires the thing from the principal for the bene fit of another, Rashi to Er. 79b in explanation of il-'11:) says, 1,::, OIV? i::i i::, r, ,r n•::in ,,::ip Ji!? il;)it-ti •i::il;) •J::i, and Tosafot Baba Batra 1 56b, s. v. 1•::>1 observe as follows, il"-'11 P'-' il"-' 1 ,, rv• n•?rv 'Wit) •�I;), J�I;) n,n,1,rv cy�o. In Roman law, the rule was j ust the opposite, originally a free person could not act as an agen t, but only for the sake of public policy was such a practice accepted, cf. Sentences of Paul V.2.2. Per liberas personas, g_uae in potestae nostra non sunt, adg_uiri nobis 33 2

333

nikil potest. Sed procuratorem adg_uiri nobis possessionem posse utilitatis causa receptum est. Cf. also Gaius, I I .95. Note that adg_uire nobis potest embraces the idea of i!::>ro whereas utilitatis causa is the equivalent for c,iy;i 1ipn.

This means that they are in his power. Note that i n Roman literary sources manus is used to designate the power of the paterfamilias over his wife, children or slaves, cf. Micolier, 36, note 5. The term ,,,.::, J1'tv 'l!lO was suggested by the rule which originally required that chattel be acquired by putting it into the hand, cf. Lev. 2 5 . 1 4 or if you purchase from the hand of your neighbor. While this verse applies to land it is noteworthy that Resh Lakish found in 33 6

PECULIUM IN JEWISH AND ROMAN LAW

24 1

The maxim ,,,:, ,,,w .')!)C is used also to justify a man acting in behalf of his children. Thus a baraita337 rules that a rilan may arrange an Erub for his children under age, and for his slaves33 8 with or without their consent or knowledge (�?fl.I 1':l 1nlJ,? 1':l Jnl),?), because their hand is like his hand. 339 It is necessary to bear in mind that the maxim "for their hand is like his hand" is applied in the Mishnah , only with reference to children and slaves, but there is no indication of the full implications of this rule. In Jewish law a borrower is liable for the object from the moment it reached his premises. However, if the lender chose to send the borrowed object , such as a cow through his or the borrower's son, slave or agent, and it died before it reached the borrower, the latter is exempt from liability, unless the borrower expressly asked him to send it, or expressly approved of the lender sending it through these persons. (M . Baba Metsiah VI I I.3) . From this passage, which deals with civil law, it appears that the son or slave may act as an agent. Note that the son and slave are used in apposition to agent. The same principle applies when the object is being returned. If the borrower returns the cow through any one of the persons just mentioned, he is liable for all damages until it reached the lender, unless the latter expressly asked him to send it through these particular persons or expressly approved of them. this verse an intimation, that chattel ,,', i•c Mlplit ,::i, is acquired by it::>'1!10 =

tradit-io. Note that Florentinus explained that slaves are termed mancipia because they are seized from the enemy by the hand, quod ab hostibus manu capiuntur, (D. 1 . 5.4.3), cf. Accarias, Precis de Droit Romain, I, p. 89, note 3.

For the notion that a ·relationship of power is associated with the laying on of the hand, cf. M . David, Symbolae van Oven, Leyden, 1 946, ·pp. 242-243. For Manus, cf. also Jhering, Geist des romischen Rechts, II, 1 64, note 223. 33 7 Erubin 82b. 3 3 8 Tosafot, Erubin 82b, s. v. 'l!l0 says that the formula ii•:, 1i•rt1 'l!l0 refers only to slaves, but cf. Tosafot B. M . 1 2a, s. v. •� and 13a, s. v. •:ii who cor­ rectly observe that the Mishnah presupposes the maxim i•::i� i•::, 1::i ,,, the hand of the son is like the hand of the father. 3J9 In the parallel text in T. Erubin IX. (VI ) 1 1 , p. 1 49, ,,,::, 1i•ro 'l!ll:) is omitted. For a similar law, with regard to the Paschal lamb, cf. T. Pes. VII.4. In B. M. V I I.6, another principle is involved .

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In Roman faw we. find two decisions reported by Ulpian that are remarkably identical in principle with that of the Mishnah. The first reads . as follows. 3 4° But if the borrowed article is lost while it is being returned , and the lender had ordered the person who should return it, then the risk will be the lender's, but if the borrower committed it to some one whom he .selected then -he will be· also responsible to me for negligence , if he received it on his own account, and Paulus adds, because he did not choose a suitable person who �ould deliver it safely,

sed et si dum refertur periit, si quidem ego mandaveram per quem remitteret, periculttm meum erit: si vero ipse cui voluit commisit, aeque culpam mihi praestabit, si sui causa accepit, qui34 1 non tam idoneum hominem elegerit., ut recte id perferri possit;

From another ruling transmitted by Ulpian 3 411 we learn as follows : A slave who was sent by the lender to demand back the article which had been loaned , ran away after he received it. If his master had orderep that it be given to him, he must bear the loss , but if he sent the slave to inform the borrower to retulih the article lent, the borrower · will be liable , Com­

modatam· rem missus qui repeteret cum recepisset, aufugit. si dominus ei dari iusserat, domino perit: si commonendi causa miserat ut · referretur res commodata, ei qui commodatus est.

An exception to this principle , but not in contradiction to it, is the case reported by J ulianus3 4 3 where the -b orrower took the utmost pains to send it through a most suitable slave and an accident happened , where we rea.d as follows : If a borrower gave silver to his slave to return it to the lender, and the slave was so reliable , that no one would believe that the latter would be deceived , and evil persons got possession of it, it will be the lender's loss. A rg,entum commodatitm si' tam idoneo servo meo tr�didissem ad te . perferenduin, ut non debuerit quis aestimare

futurum, ut a quisdam malis hominibus deciperetur, tuum, non meum detrimentum erit, si id mali homines 'intercepissent. 34° 341

342

3 43

D. 13. 6 . 10. 1. Cf. Paulus, D.- 13.6. 1 1 who also_ uses the phrase tam idoneus homo. Paulus, . D. 13.6. 1 2, D. 13.6.20.

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Guardians in some respects resemble agents343a because they act in behalf of other persons. The Tailnaim ruled . that a court should · not take the initiative (il?'nn:,,) and appoint women , slaves or minors as guardians (l'!n,��.EI� ;= E1rlTpo1rot) but if the father had appointed any of them in that capacity during his life time, the court should confirm the appointment. 344 The reason given by Rashi is that women are not accustomed to take the trouble to manage the affairs properly, slaves could not be trusted, and minors because they lack the necessary intelligence. As for the Roman law, GaiusJ4s tells - us that persons under the age puberty (inpuberes) should be in tutelage is the law everywhere (omnium civitatium iure) and that there is scarcely any country that does not recognize the right of a parent to appoint a testamentary tutor to his children under puberty testamento tutorem dare. The Emperor Antoninus wrote to Epaphroditus in 2 1 4 C. E. 3 4 6 If your patron's children are of such an age that their affairs should be administered by guard­ ians, be sure to appear before the Praetor, and give him the names of those for whom guardians ought to be appointed , and if you fail to do so, you will run the risk of being punished for your neglect of duty to your patron (si cessaveris obsequii deserti

periculum subeas) . 3 47

Women, we are informed by Gaius, are excluded from guardi-

343a C f. Neratius' observation Et tutor pupillo pupillae similiter ut procurator emendo nomine pupilli pupillae proprietatem illis adquirit etiam ignorantibus.

D. 41 . 1 . 1 3. 1 . 3◄ 4 Git. 52a, T. Terumah 1 . 1 1 , T. Baba Batra VI I l . 1 7 . In the Tosefta, minors are omitted, cf. also Gulak, Tarbiz, vol. I I , p. 246, and Tcherikover, c•,�0:i c•iii'!'l'T, Jerusalem, 1 945, p. 146. 34 S Gaius, I. 189, cf. Galatians 4. 1 . Now I say that the heir (KA11povoµos) as long as he is a child (v�mos lunv) differeth nothing from a servant, though he be lord ·of all, but he is under tutors and governors (inro E7rt-rprnrovs Eu-rl Ka.l olKovoµovs), until the time appointed for the father. For this passage, cf. Deissman, Light from the East, p. 3 1 9. For Philo's view on this subject, cf. Goodenough, Jewish Courts in A lexandria, pp. 70-7 1 , and Belkin, Philo, pp. 9 1 , 92, note 1 1 . For brl-rpoios, cf. P. De Francisci, 'E1rl-rpo1ros vel Kovpa-rop nel libro Siro-Romano, Saggi, I . 3 ◄ 6 C. V. 3 1 .2. 3 ◄ 7 Cf. Buckland, Text Book of Roman Law, 2nd ed., p. 142 , note 2.

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anship, because it is generally an office whose duties are exer­ cised by men . · Tutela plerumque virile officium est, 34 8 and Neratius qualifies this rule when he observes that they can obtain guardianship of thei� children through an express applica­ tion to the emperor, (nisi a principe filiorum tutelam specialiter

postulent) . 349

As for a slave, Ulpian says, that one belonging to another can be appointed a guardian, where it is stated that he shall act as one if he becomes free. And even if the slave be appointed without any condition, the acquisition of his freedom is held to be a condition upon which his appointment depends. Serous

alienus ita dari tutor potest 'si liber erit tutor esto. ' quin immo et si pure datus sit, videtur inesse haec condicio 'cum liber erit. 'Jso

A son under paternal control can definitely be appointed a guardian as we learn from Ulpian who says that where a filius familias .is appointed guardian by the praetor, and his father agrees to the appointment, he should be held liable for the entire amount, but if he does not agree, he will be liable only for the amount of the peculium. Si filius familias tutor a prae­

tore datus sit, si quide1J1, pater tutelam agnovit, in solidum debet teneri, si non adgnovit, dumtaxat de peculio.Js1

On the . basis . of various Tannaitic statements anent the alieni iuris, the Amoraim formulated several maxims, which if taken, in their very literalness went beyond the intentions of the Tannaim and as a consequence much discussion was excited when these principles were juxtaposed with the M ishriah . In order to comprehend adequately the implication of a maxim it will be necessary to bear in mind that a legal maxim is a phrase embodying a legal idea in ·a succinct form without being an authentic or complete expression of the law, 35 2 as was observed by Paulus (D . 50. 1 7 . 1 ) Reiula est' quae rem quae est

breviter enarrat. Non ex regula ius sumatur, sed ex iure quod 348

D. 26. 1 .16.1. D. 26. 1 .18. 35° D. 26.2. 104 , cf. also C. V. 28.5, and D. 26.2.22 and D. 26.2.28. 1 . 35 1 D . 26.1.7. 35 2 Cf. F. Pollock, A First Book of Jurisprudence, London, 1929, 6th ed. , p. 235. Jhering, Geist des Romischen Rechts, 4th ed. , 1.28:-31 . 349

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est regula fiat. 353 A maxim . is a concise statement of the · 1aw as it is. The law is not derived from the maxim, but the maxim is deduced from the law. One of the maxims is, whatever the slave acquires, belongs to the master. This maxim is identical with that Gaius, Servus, qui in · potestate alterius est, nihil · s uum -habere · potest (I I . 8 7), or as J ustinian 353a put it, quidcumque per servum acquiritur id dominus acquiritur. Js'4 The ruling of R. Meir in the Mishnah (Kid. I . 3) that a slave can· be emancipated by money only if it is given · by a third party ·to the master led to the belief on the part of some amoraim that he held the view that whatever possessions a ,slave · possessed belonged to his master. · This maxim was differ­ . ently formu1ated in the different sources. In Kid. 23b , the ;anioraim phrase it as ,:iy? 1':li' l'� or ,:i, . 'Jpi i:IY ' JP, It is· implied in the Mishhah (Pesahim VI II .2) that the slave �ould slaughter his own paschal lamb. The Talmud · asks in surprise, how is this possible ,::i, mp ,:iy mpw i10 (Pesahim 88b) : What a slave possesses belongs to his master. ·· Abaye solved the contradiction by explaining that the slave goes to the shepherd with whom the master is in the habit of dealing, who is glad to do the master a favor (i1':ii, �n:ipr,::i i1'' �n,:i,) . The shepherd gives the slave a gift of an animal op condition that his master does not own it (i:i mw, ,:i,, l'�tv mo ':,y li1"J'O , ,n · ii'? 'J,POi ) . The Palestinian Talmud speaks of R. Meir holding the view

,:i, �,::i

Cf. Schulz, History of Roman Legal Science, p. 67, note 2, for legal maxims, cf. Brugi, "Le Regulae juris dei giurecohsulte Romani , " in Studi in onore di G. del Vecchio, 1 930, I, 29 ff. 3s3a Institutes, 1; 8. 1 , cf. note 483. 3 S4 In American Law, the possession of the slave was the possession of the master, and any property acquired by the former belonged to the latter and a slave could acquire no rights u nder a deed which either a court of law or equity could enforce ( Corpus Juris, vol. 58, p. 757). The American law of African slavery was a system of customary law, which resembled tha.t of. t_he Roman rather than the villeinage of the ancient common · Iaw, and the courts have looked to the Roman rather than to the old common law of England for rules applicable to it, for African slavery never existed in Great Britain, by the common law, by statute or by the law of nations ( Corpus Juris; I. c., p. 746) . 3 s3

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J EWISH AND ROMAN LAW

that the possessions of the slave are his masters ,,:, i::131 ,, ,:i, .355 This principle is also presupposed although not explicitly ex­ pressed in connection with the following ruling in the Mishnah (Terumah VI I .2) . If a man feeds his slaves with Terumah, he must pay the principal , but not the additional fifth. Upon this statement the Yerushalmi35 6 comments as follows : If before the master had the opportunity to pay the principal , the slave was emancipated, then the latter pays all, or if. he had property given to him with the condition that his master has no control over it, then he pays immediately ,, w, ,1nu ,,nnrvlrv ,v c,w, P'!)Oil N? 7nu lil::1 niru, l'Ntu c;o:,l . The view that the possessions of a slave belong to his master is exploited in several Agadic passages in the Talmud. According to a legendary narrative, 357 various nations appealed to Alexander the Great, to compose their disputes with Israel. Among them were the Africans, who laid claim on the basis of Scripture to the . land · of Canaan , as direct descendants of Canaan, as their lawful territory, from which they have been dislodged by Israel. This argument was successfully met by Gebihah ben Pesisah who also cited Scripture in defence. "Cursed be Canaan, a servant of servants shall he be unto his brethren� " Now if a slave acquires property, does it not belong to him who owns the slave, 35 8 and in view of this rule, it is we who have claims against you for many years of service owing to us. · , :iv C'o:,l mprv ,:131 ,m,::iv N?tu C'lfD ilC:, N?N ,,v N?1 '0? C'O:,li 'C? . According . to another version ,359 Gebihah argued even more ironically in the following fashion. May not a master dispose of a slave as he pleases ? To which the emperor replied , Yes ; then

,::i,,

355 Ket. VI . 1 , Ned. Xl.8, and Git. VI I I . 1 . 356 Terumah VII.2. 357 Cf. Sanhedrin 91a, Bereshit Rabbah 61. 7 (ed. Theodor-Albeck, pp. 666667) and Megillat Taanit (ed. Lichtenstein, H. U. C. A. VI I I-IX, p. 329) . Hans Lewy, in his article, "Ein Rechtsstreit um den Boden Palastinas im Alterum," in M. G. W. J. 77 (1933) , p. 89 et seq. has made a critical study of this legend ; cf. also Aptowitzer, R. E. J. 82, 1926, pp. 279 ff. 35 8 Sanh. 91a, cf. also rules of Ulpian, XIX.20. Si servus alterius irv bonis, alterius ex iure Quiritium sit, ex omnibus causis adquirit ei, iuius in .Vonis est. 359 Beteshit Rabbah 6 1 . 7.

PECULIUM IN JEWISH AND ROMAN LAW

24 7

continued Gebihah , now since Scripture stigmatizes · Canaan as a slave then the land of Canaan is ours, and they (i. e . our opponents) are your slaves as far as we are concerned 'l,1N :i,n:, i!C icN J'il ii'? ,cN ii�,, Niilll) ilC ,,:iv, ilW,V · C1N pN 71:,c;r 7?bi1 'l,1N? C'1:lV Ci!, U?tv fiNil 'iii . ; . JVJ:, i, iN . In a third version , 3 60 the argument presented by the brave advocate of the Jews became even more subtle . arid legalistic , " I s there such a thing as a law partially abrogated and partially in force ?3 6 1 Now if Scripture has decreed that this land should belong to Canaan , it has abrogated that faw by designating that Canaan should be a slave , for does not the property of a slave belong to him who owns him . Furthermore we a.re entitled to compensation for the fruits3 62 you enj oyed for all those years.· yiN ;,,m::i ::i,n:, cN, c,, p ,n�pc, ,ra:::i ,n�pcro , ,, irl to' ,:,, lil? icN c, o:,J m;,ro ,:iv ,,nN, il'il' c,,::iv ,:iv lVJ:, ,,,N ili,n:::i :i,n:, 'iii lVJ:, c,:,,,� ·cnN, mN,:in C'ltoil 1:,:, cn,:,Nro ,, N?i 'C ,w c,o:,J , 'D ,ro ,:iv C'ltoil 1mN 1:,:,c i:,ro u, m?Vil? . While these pretended discussions may be merely echos' of accusations against the Jews by pagan readers of Scripture in Alexandria, the adroit answers of the Jewish advocate reveals his resourcefulness in meeting his opponents on legal grounds that were intelligible to the heathens of that age. This legal principle was utilized by Resh Lakish , in a sermon of his attacking the belief of some backsliding Jews, who claimed that Israel was absolved from obeying God 's -commandments, since they were sold to Nebuchadnezzar, . j ust as a slave who is sold , has no duties to his former master3.6 3 · nwk, ,:ii ii:,cro ,:iv 36o Megillat Taanit, 1. c., p. 329 . . 3 61 D. 9.2 . 1 pr. informs us that the Lex Aquilia partially abrogated (dero­ gavit) the preceding laws concerning wrongful damage to property,. Derogavit is defined in Ulpian I . 3 and D . 50. 1 6 . 102 . . Gebihah is evidently not basing his argument on classical Roman Law, cf. also Kruger, Geschichte der Quellen und Literatur des Romischen Rechts, 2nd ed. , p. 2 2 . 3 62 Cf. C. 3 . 3 2 . 2 2 . Certum est mala fide possessores omnes fructus ·solere cum

ipsa re praestare, bona fide vero extantes, post litis autem contestationem uni­ versos, cf. Daube, " The Restoration of Fruits by t�e Bona Fide Possessor" in the Cambridge Law Journal, 1 945, p. 31 et seq. and Jars-Kunkel-Wenger, Romisches Recht, 3rd ed . 1 949, p. 1 4 1 , note 15 and p. 407. 363

Sanhedrin 1 05a.

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c,1,.:, m 1,s, m1, IV' c,1,::, ii1,s,:i nrviJrv. In answer to this argument Resh Lakish cited the Biblical verse to prove that Nebuchad­ nezzar himself is - the slave of God ,3 64 and hence Israel is still subject to God 's jurisdiction, in aGcordance with the principle, that if a slave acquires something, it belongs to the master. ,o, t;J'c:>l ,,:h ,:iv c'c:>l mprv ,:iv. In a fanciful legend , 3 6 5 the motive of which was obviously to j ustify the value of the study of the obsolete laws of sacrifices, there is a description of an imaginary conversation between Haman and M ordecai, when. the former found the latter teaching his disciples certain laws and practices concerning the sacrificial meal offering366 p:i,1, ii�'OP n,.:,1,n li'11, ,,no. Whereupon Haman in a fit of dejection exclaimed : A handful of flour used in the sacrificial meal offering has offset ten thousand silver talents of mine, with which I believed I had purchased the Jews. To which Mordecai replied : 0 villain, the possessions of a slave belong to his master. 3 67 The next maxim formulated by the amoraim was whatever was c1.cquired by the woman belonged to the husband i'll'lJp!V i'IO i'l1,s,:i mp i'lfVN. This rule, which was also variously phrased, was most likely derived froin M . Nedarim Xl .8 and was attributed to R. Meir by R. Zera3 68 undoubtedly because the former was considered to be the author of the view that whatever the slave possesses belongs to the master. These two maxims were organically connected, albeit it was recognized that there was a difference between the property rights of the woman and the slave. In the Palestinian Talmud it is assumed that R. YaimaiJ 6 9 364 Cf. J er. 43. 10. 36s Megillah 1 6a, cf. Tosafot Sanhedrin 5 1b, s. v. Nn•ruo, Nn:,', ;,, J ustinian also appreciated the fact that obsolete law has its values, cf. Schulz, History of Roman Legal Scienc.e, 1 946 , p. 284. 366 Rashi, I. c. , explains the reason as i1'i1 J O'l:1 i111v i11111Vl ul' ',rv ll'l l' ::l 1t1i1, ,o,v;, l1!>1ln Cl' Nli!. J61 Cf. Deut. Rabbah I . 1 7 (ed. Horeb) . When Esau asked Jacob for a blessing, he was told that it would not avail , as Jacob was blessed to be his master ; and a slave and all his belongings are his master's ,; rv•ru no ',:,1 i::i v n Ci! ll'lliN ?IV N?. J68 Cf. Ned. 88b. 3 69 Yer. Gittin VIII . 1 .

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too followed the view of R. Meir (1'NO • ,� 'Nl' •, N'l'1N1) in advo­ cating the view that the acquisitions of a woman belong to her husband (n,y:i ,,� i1WN- i' ) .37.0 However, Rabbah in the name of R. Sheshet remarked that all scholars held that a woman could not possess property independently from her husband l'l P l'N n,v:i N�:i i1WN� 37z and seemingly this opinion was the prevalent one in amoraic times. In the Babylonian Talmud the maxim, usually cited as n,y:i mp i1WN nmpw i10 372 is actually quoted by · R. Ilish in a dis­ cussion with Raba (Git. 7 7 b) . Otherwise it is quoted anon­ ymously. The Talmud presupposes that several Amoraim were familiar with it, namely the Palestinian scholars R.- Jose b. Hanina (Sanh. 7 1 a) , R. Eleazar, and the school of R. Yannai (Git. 7 7a) ; and the Babylonian scholars , Raba, R. Ilish (Git. 7 7b) , a:nd R. Papa (Naz. 24b) . I t is fo be expected that the Amoraim were to find this maxim to be .in direct collision with a number of Tannaitic statements. Thus the statement of R. Jose ben J udah tha;t a rebellious son (n,,o, ,,,o p) was not punished as such unless he stole both from his father and mother (M . Sanh. 8.3) was questioned by the Talmud. 3 73 How can he steal from his mother, does not what a woman acquires belong to her husband ? To this, R. Jose b. Ha_n ina of Caesarea374 replied : He stole part of the meal prepared for his parents 10N�1 ,,:iN� m�ion n,13,700 and since the husband is required to support his wife, she is, so to say, part owner of the food. According to another view, he stole money which was specially set aside for the meal of his father and mothenoN,i ,,.:iN� m.:m,n i1i13)0 'OiO. This latter opinion coincided with R. Hoshaya's view375 that the rebellious son is only respon37° Cf. also Yer. Kid. 1 .3, Yer. Ned. Xl.8 (read R. Zera instead of i•N) i'NO ,,, ::ll J:'JN 1'N0 ,,� n::>,�J '0� and Yer. Ket. VI . 1 , mi•.E> nl;,•::,N N?N i1'?V J'Ntv n,,o i1?V::1 n::, r i1tvNi1 nn::, r, in Kid. 23b, an anon­ ymous authority also attributes this view to R. Meir. m Kid. 23b. 37• Cf. Epstein, Jewish Marriage Contract, pp. 1 1 2-1 1 3 . 3 73 Sanh. 7 1 a. 374 On this scholar, cf. Z uri, p,opo Nl'ln '01' • ,, Jerusalem, 1 926. 37S Yer. Sanh . V I I I .3 .

,:i , ::i.

,v

,::i., ,,::, ,:iv ,, i•::i.v

,•::i.

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J EWISH AND ROM AN LAW

sible if he steals money and expends it in a wasteful manner ,r,r,ru :ml'W In the Yerushalmi , 3 7 6 too , the question was raised : Does not everything that the mother possesses belong to the father 1':lN ,rvo tot? iot-t, W'W i!O ,:,, ? To this R. Jose b. R. Bun replied, that he stole from the money that was given her to prepare the meal n,::iv, 1',, , , il:lOJ Miili pmo ::im ,,,ru . Another ruling which seemed to be at variance with this maxim was the following : If a man · threw a bill of divorce to his wife, and it fell on the ground while she was on the premises, such as her home or courtyard, then the divorce is final pi, m nru,uo ,r ,,ii ili'�n 7,n::i 1 N i!M'::i 7,n::i N'm ,nruN, � l (Git. 8. 1 ) . Again the Talmud is provoked to ask (Git. 7 7a) how can the wife own a courtyard ? Does not what a woman acquires, belong to her husband ?377 R. Eleazar harmonized the inconsistency by predi­ cating that the M ishnah deals with a case where the husband stipulates in writing even after the marriage that he will have no part of her property 7'0:)J:l '' l'N c,,::i,, l'i ii? ::im:,::i. The Talmud deemed R. Eleazar's interpretation unsatisfactory because such a stipulation would be illegal. Consequently an explanation from the school of R. Y annai was offered. According to it, the Mishnah presupposes the case where the written stipulation was made while the woman was still betrothed (i101iN i1i1V1 ii? :irn:,:i) . Raba held that i t was unnecessary to stipulate, and still the act would be legal. This he j ustified on the principle that her bill of divorce and her courtyard came to her simultaneously inN:, l'N:l i!i�n, il�l. We assume by a sort of legal fiction that at the same instant of time when he threw the bill of divorce on the premises to grant her freedom, ownership of the courtyard was restored to her, and consequently the Get fell on property that belonged to the wife, which made the act legal without a stip­ ulation. This legal fiction is inherent in the fact that a woman is

mvo

,v mvo

,v.

Yer. Sanh. VI II.4, cf. Rabbinowitz, ad loc., who suggested to read l'il'-r for 1•-ri•-r. 377 Rashi, ad loc., remarks, that he acquired it as far as the usufruct is con­ cerned, and hence the bill of divorce is considered to be still on the premises of the husband. A similar view is found in Yer. Git. VI I I . 1 . 376

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divorced by receiving the Get in her hand although the latter actually belongs to her husband (? y:i ii'? t-t')P tot ? '0 ii,, ,�tot) . B ut here too, at the same moment he puts the bill of divorce into her hand, her hand, i. e. her capacity to acquire is restored to her. Rabina found Raba's reasoning faulty, inasmuch as the hand of a woman never belonged to her husband , he merely had the right to her earnings. R. Ashi observed that Raba based his interpretation upon the analogy with the slave . According to R. Meir, the slave became emancipated when he received into his hand the bill of manumission from the master, although the hand of the slave is like the hand of the master (, :iv ,, , :i, ,,:, ) . Hence we must assume that at the same instant the slave receives the letter of manumission, his hand is restored to him, namely , his right to acquire things, and similarly in the case of the wife , when the Get fell on her premises , her ownership of it returned to her simultaneously with his grant of freedom to her from the bonds of matrimony. According to the Talmud (Git. 7 7b) Raba first enunciated the principle of ,nt-t:, l't-t:1 ii,,, il�l in connection with the following case. A seriously sick man (yio :1':>W) had a bill of divorce written for his wife late Friday afternoon, and did not have the oppor­ tunity to deliver it to her. On the morrow, on the Sabbath day, he became critically ill (t-to?y ii'? i:l' pn) . Since it was not allowed to handle and deliver the Get on the Sabbath, 37 8 Raba , whose advice was solicited , suggested that the husband convey to the wife the title to the place where the writ of divorce was lying , which she could acquire by means of Hazakah e.g. by closing and opening of the door of the room where the Get was. R. Ilish, who was present when Raba gave these instructions, questioned the wisdom of this advice and cited the maxim, what the wife acquires , belongs to her husband. Raba became embarrassed , but it turned out that the woman was merely betrothed. Later the Talmud remarks , that Raba first enunciated the principle ili�n, il�l ,nt-t:, l't-t:i in connection with this case . J 78

Cf. Tosafot Git. 77b, s. v. �•r•ni and s. v. iTO, Orah Hayyim 524.2, Lieber­ man , c•lirvN, nu,o,n, 1 . 1 1 1 .

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In the Yerushalmi379 the question is posed : How can the Tanna speak of her garden or courtyard seeing that they are subject to the husband for the usufruct mi'D n?':>N? to'N? l'i:ll7itoo P'N ? R. Yohanan380 in the name of R. Yannai explained that the Mishnah takes for granted that the husband stipulated in writing that he had no claim on the property. 3 81 R. Isaac b . Hakolah reported the view of R. Hoshaiah that the husband did not make a stipulation, and still the divorce was legal , because the right of usufruct of ·the husband does not make him the owner of his wife's premises3 82 'i' 1,y 1',0Ni p:ii:, i1'3)toii1 ':!iii n?':>N? to'N? l'i:,.37,wo 1i1tv l"VN i1�l i1n:>r N'i'T n,31:i i':> i1tvNi1 i' l'Ntv 7'0:>J:l l'N c',:iii l'i i1? :,.n:, N? 1?'!)N rni'E> . The Mishnah3 83 · discusses the rule concerning the disposal of cattle set aside by a woman Nazirite, after her husband had annulled the vow. The Talmud is surprised at the statement i1l'l'i1 i1?tv CN if the cattle were hers. Do not the acquisitions of a wife belong to her husband ? R. Papa3 84 observed that the wife economized the money out of the allowance given by her husband (i1n0'3JO i1�0'Pll)) . According to another view, some one gave the woman money on condition that her husband have no control over it. 3 8s A similar view is expressed in the Yerushalmi3 86 inN i1? 1mru:i 1i1:l mw, 7,1,31:,.1, Ni1' N?rv mo ?3) i'T? ioNi i'TlMO. Another opinion is m Yer. Git. V I I I . 1 . ° Cf. the correct reading i n Tosafot Git. 77b, s. v . i!l.l, 381 This agrees with the view of R. Eleazar in the Babli. 382 We have adopted the emendation of David Frankel in his commentary , ad Joe. However, the Yerushalmi finds that R. Yannai's view difficult for even R. Meir, who held that the slave's hand is the master's hand, was of the opinion that the slave could receive the bil l of emancipation from his master, ,�•l i!::m Nii!l l:li i•.:J i:ll/ ,, Nm i•ttl.l • ,, ';, 31 N'tvpl . The Yerushalmi was not familiar with Raba's answer inN.:J J'N:l ,,,, ,r:n, although Raba's interpretation of the Mishnah, concurs with that of R. Hoshaiah in the Yerushalmi. 3 83 Nazir IV.4. 384 Nazir 24b, ps-Rashi remarked that the husband was away on business , and gave her money through a third party (w•,111) . Tosafot, I. c. , s. v. i!�l.lp111 discusses other difficulties, cf. R. Nissim to Nedarim 88a. Cf. Seneca, Epistles 84 concerning the slave, says that he cheated his stomach i11 order to sell food (ventre fraudato) . J8s Cf. Tosafot N azir 24b, s. v. il.lNl. 3 86 N azir IV.4. 38

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given by R. Mattanyah that the Mishnah deals with a case when the husband appointed his wife an administrator over his property ,,o.::,l n �',w0::1.J 81 Abaye too was of the opinion, that R. M eir held that the possessions of a woman belong to her husband , hence he emends the baraita in Kid. 24a to read that R. Meir disallows a woman to redeem the second tithes of her husband even if she receives money from some one else, for the specific purpose of redeeming them ,wvcn nN ,::1 ,,£,nW mo ',37 n, ictit, me inN n, 'lJ'Ni. To sum up briefly, according to the Amoraim, a woman could possess property of her own in spite of the rule i1WN nmpw no i1?3,':I i1li' in the following instances ( 1 ) if she received a gift on condition that her husband have no control over it, (2) if she economized out of her household expenses, (3) if she were appointed an administrator over his property, (4) if she inher­ ited from her father second tithes, in accordance with R. Meir's view they belong to her. The next maxim which was formulated by the Amoraim was the hand of the slave is like the hand of the master. As is obvious, this maxim was based on the Tannaitic statement ,,,w 'Jmo , which prohibited slaves from acting as agents in certain ritual matters. 3 88 The Tannaim laid down no general principle defining the extent of a slave's power to act as an agent. Hence we find in the M ishnah, that a slave could act as an agent to deliver or return a borrowed object (B . M . 8 . 3 ) . The Amo­ raim found this rule incompatible with their maxim ,,.::, and several attempts were made to reconcile the two rules. 3 Rab 89 suggested that the Mishnah was dealing with a special case where the borrower said to the lender of the animal strike it with a stick and let it come out of your premises ', po:i nw,.::,i'T Nt::in N'iti . Since the animal left the premises at the order of the master, the delivery of the animal by the slave would be a mere physical fact without legal significance.

,v

,:ii ,,.::, ,:iv ,,

,,,.::,

,:i,,

387

,:iv

,,

This calls to mind the libera administratio peculii, see for example D. 46.2.34, D. 1 5 . 1 .48 and D. 2 . 14.28.2, cf. also Biondi, lstituzioni di diritto Romano, Milan, 1946, p. 7 6, note 16. 3 88 Er. VII .6, Maaser Sheni IV.3, cf. above note 1 55 . 389 B . M . 9 9a.

254

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The Palestinian scholars were agitated by the same problem, except that it was stated in positive form. In its comments upon M ishnah Erubin 7 . 6, the Yerushalmi raises the question : Does not this rule prove that a slave can act as an agent in behalf of his master inN? ,:i,, n:,rc i:ivmv nicN N1i1 n,', ? R. Yohanan offered a solution almost verbally in agreement with Rab ii'?NC i1N:li i1? nm, ,, ,c,N:i . R. Zera was inclined to believe on the basis of Erubin . 7 . 6 that a slave was generally barred from acting as an agent inN? ,:i,c n:,,r i:ivn l'Ntv nicN N1i1 . The view was rej ected by the argument that this passage of the M ishnah merely represented the opinion of R. M eir. Since this M ishnah permits a woman to act as an agent, we may well assume, that R. M eir holds the view ,:i, ,,:, ,:iv ,, but rej ects the opinion n,v:i ,,:, i1tvN ,, as R. Meir permits a woman to redeem the second tithes in behalf of her husband. 390 R. Yohanan39 1 ruled that a slave may not be appointed as an agent to receive a bill of divorce from the husband in behalf of his wife, since the slave is not subject to the laws of marriage and divorce l'tviip, l' �l n,,n:i U'Ntv · '!:l? but the slave may act as an agent to receive the bill of emancipation for another slave from his owner, provided it is not his master, too, for in the latter case, the principle of , :i, ,,:, ,:iv ,, would apply. R. Ilish asked of Raba : J92 What is the rule if a man says to his slave go and lend yourself with my cow, Raba responded : the principle i:i� ,, is applicable, and hence the borrower will not be liable for damages, for he has complied with the requirement of i:J'?V:l:l i1?'Ntv . It is as if the presence of the lender was obtained which frees the borrower (Ex. 2 1 . 14) . According to R. Meir, if the intention of the master, to transfer the slave from a class of things that could be owned into the status of a legal person, was to be effected by the conveyance of a letter of manumission it had to be given directly to the slave, ,c�v ,,, , � ,�w:i . 393 Now if it be asked how could one convey

,:i, ,,:,

3 9° 39r

392

J93

Yer. Er. VII.6. Git.' 23b, Yerushalmi 1 1 .6, Eben ha-Ezer, 141 ,31 . B. M . 96a. According to T. Kid. 1 .6, and Yer. Kid. 1 .3, R . Meir held, as was reported

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a deed to a slave who had no legal capacity to receive it ?394 The answer is, that R. Meir entertained the paradoxical notion that at the very moment the deed reached the slave , he became a j uridical person , and became qualified to receive the document which liberated him inN:> ,� c,N::::i ,,,, ,�l . 395 It is true that this natural antimony39 6 involves a logicai fallacy , for we are presup­ posing two events to be happening simultaneously, which should , legally speaking, follow each other, but in the very nature of th ings cannot. Viewed juridically , the conveyance of a deed , bestows rights upon the recipient, only if he is previously qualified to receive the document , which the slave is not, for he is now being freed by the deed. I n any event, this paradoxical doctrine, attributed to R. Meir, is a bold endeavor to transcend the irreconcilable realities of empirical Jaws, so to speak , by means of a legal fiction . Maimonides39 7 sums up in concise fashion the Talmudic law when he writes : Slaves, male or female, may be appointed as

by R. Shimon b. Eleazar, even in case of manumission by deed it had to be conveyed to a third party. In Kid. 23a this is given as R. Shimon's view, cf. Dunner, mmn to Kiddushin, p. 72. For the reading J)tt, cf. Lieberman , c•Jirvtti nu, cm, , p. 82, and Epstein , i'1ll!IIJi1 nou, tti::ir.,, Jerusalem, 1948, pp. 1 0 1 61 0 1 7 , cf. also Rubin I , 1 1 6-1 19. 394 Cf. Rashi, Kid . 23a, s. v. -,ntt::> l'tt:::i, who says ntt ,:::i, tt•�,n N? p•ir.,tt N?l n,:::ip il1 J 'Nl 1nirv11J �li1, and Kid. 23b, s. v. l'�l:::i 1"111 who noted ,:::ipr., U'N ctt mrv,r., �lil N�• 011!11.) l �l. 3 9s Cf. Git. 77b, Kid. 23a, cf. D. I . 1 .4, I nst. I . 5 pr. , nam quamdiu quis in servitute est, manui et potestati suppositus est, manumissus liberatur potestate. On this passage, cf. Wlassak, in Z. S. S., 28, p. 4, note 2 . For the origin of manumission, cf. S. Perozzi , Istituzioni di Diritto Romano, 2nd ed. , 1 928 , 1 .240, note 2. 3 9 6 This paradox o f time was not unlike some of the antinomies of Zeno, cf. Zeller, Die Philosophie der Griechen, I . 59 1 et seq. For legal paradoxes, cf. also Cardozo, Paradoxes of Legal Science, New York, 1928. 3 9 7 Hilkot She1uhin, I I . 1 -2 . On the slave as an agent, cf. also Rubin, Das Talmudische Recht, I, pp. 53 ff. Labeo says that a slave who is sent to distant parts to purchase merchandise and sent it to the master is regarded as an agent (loco institoris habendum) . D. 14.3. 5 . 7 . Persons in aliena potestate could of course transact business, cf. D. 1 4 . 5 , Quod cum eo, qui in aliena potestate­ est, negotium esse dicetur.

,::i,

tt,.,

256

JEWISH AND ROMAN LAW

agents398 in commercial transactions399 since they are possessed of intelligence and are subject to some of the laws, whereas a Gentile may not be appointed for any transaction . The manumission of slaves is implicated in the question of the rights of the slave to own property. According to Lev. 1 9. 204° 0 a slave gains his liberty on his own initiative by self-redemption nn,!ll tot? n,!lm or by a voluntary4° 1 grant of freedom by the master it? 1m N? i11ll!lin which, as the Tannaim interpreted it, had to be accompanied by a _letter of manumission (irarv) . 4°2 The school of R. Yannai taught that only those may be agents who are n•,:i 'J:l which Rashi .explains as those who are circumcised and have entered into the covenant of the law, m�c n•i:i:i ,�:i, c•',inc. The slave is a n•i:i 1:i as may be inferred from the phrase 1'l'll :l tjnC, cf. Yeh. 79a and Rashi to Deut. 29. 10. I f a slave possesses untithed grain (?:itj) which he received as a gift that his master have no control over it, he sets aside the heave offering, for he is required to observe all the ritual laws obligatory upon women. Conse­ quently he s hould b'e able to act as agent to set aside Terumah in behalf of others (Rashi to Gittin 23b, s. v. �n',•c:i �n). 399 Cf. D. 50. 1 7. 1 33. Melior conditio nostra per servos fieri potest, deteriori non potest. For this passage, cf. Savigny, System des romischen Rechts, 1 1 1 .93, note e. This is a precise parallel to the rabbinic maxim �,, i•n,ito 'J1pn', •n,, v ', , Kid. 42b. Whether the act of acquisition by a filius or a slave is to be considered a species of agency or is to be distinguished from it, cf. Mandry, Familiengiiterrecht, I . 134 and the literature cited by him. That a slave may represent his master, cf. Deissman, Light from the A ncient East, 3rd ed. , p. 335. 4oo Cf. Vulgate, et tamen pretio non redempta . . . nee. libertate donata. For the use of redimere in connection with the redemption of slaves, which is quite common in j u ridical texts, cf. e. g. D. 1 7. 1 .8.5 and the Septuagint reads Kal. ai$n1 Xvrpo,s OV AEMrpwra, . . . � �AEV8Ept:1 ) pro­ vided that the money was given to him by others (Ni1't0 ,:i',:i, C'inN ',roe ') O.:>i1) presumably for that purpose , although this fact is not specified in the M ishnah. I n Roman law . there is an institution which may be described as servus suis nummis emptus, which goes back to a rescript of Divi Fratres , 4 1 3 namely Marcus Aurelius and Verus dating between 1 6 1-1 69 C. E. which is supposed to be due to Greek influence . 4 14 The rescript4 1 s provided that if a slave is purchased with his own money, he is in a position to demand his freedom. ls qui suis nummis emitur epistula divorum fratrum ad Urbium Jfaxi­

mum in eam condicionem redigitur, ut libertatem adipiscatur.

I n essence this redemption is a kind of fictitious sale , and a confidential agreement between the purchaser and the slave which must · be made at the beginning of the transaction :4 1 6

ab initio enim hoc agi debet, ut imaginaria fieret emptio et per fidem contractus inter emptorem et servum agatur. 4 12

C .7 .6. 1 .8, cf. Nicolau, Causa Liberalis, Paris, 1933, p. 3 1 6. 4r3 On Divus cf. Alvaro d'Ors Perez Peix, Divus Imperator, Madrid, 1943, reprinted from the A nuario de Historia del Derecho Espanola, vol. XIV. 4 r 4 Cf. Hitzig, Z.S.S. 1 7 ( 1 897), pp. 169-1 70 and Taubenschlag, Der Einftuss der Provinzialrechte auf das Romische Privatrecht in A tti del Congresso inter­ nazionali di Diritto Romano, Paris, I , 1934, p. 286, note 3. 4 1 s D.40. 1 .4 pr. 4 16 D.40. 1 .4.2. Buckland (Slavery, p. 645) says : " I n the case of the sale of servi nummis the purpose is not necessarily express, and the initiative is in the slave. So far as appears, the master receives a full price, and is merely a consenting party, who does not stand to lose anything by the transaction. Whereas in transfer ut manumittatur the transaction is expressly for that purpose, and is initiated by the dominus. "

260

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The money furnished by a slave to the purchaser could come from the peculium which belongs to the vendor, or from some fortunat.e transaction , or .. from the liberality or kindness of a friend , as long as the person who lent his name to the purchase did not spend any of his money. 4 1 7 This form of redemption is inconsistent with R. Meir's view who held that the slave could not give any money he could call his own , to quote the words of Ulpian : cum suos nummos servus habere non possit. It is also incompatible with the view of the sages who envisaged the case where the slave pays the money directly to the master. Abaye and Raba observed that when R. Meir says that a slave can be emancipated if another person gives money for that purpose in his behalf, it is understood that this transaction can be effected without the �onsent of the slave4 18 ms,,c N?W . This is an exception to R. Meir's view. For R. Meir was of the opinion41 9 that if a man ordered his agent to deliver a writ of emancipation to his slave , he may later retract if he so de­ sires, because freedom entails some disadvantages42 0 ,, titm :nn , whereas the sages maintained , that the master could not revoke his order, for it was a favor421 to the slave to obtain his freeD.40. 1 .4. 1 . il'N ttcru ,nv,c N?tu ,,:iv nN ,::i,cil. Kid. 23a, cf. also Yer. Git. I.6 (2d) In Gr�ek law the slave could purchase his liberty with his peculium by agree­ ment with his master, cf. Ingram , Encyclopedia Britannica XXV (1 1 th ed. ) , p . 2 18a. Whether the master can be forced to accept the price of redemp­ tion, or does it of his ·own free will, is a moot point, cf. Beauchet, I. c., I I , 470-47 1. 419 M. Git. 1 . 6, Git. 1 2b, Tosefta 1.5, Yer. I.6 (2d), cf. also Tosafot Git. 1 1 b 2. v. '�'l::l. This reminds one of the odium libertatis, for the latter, cf. Wlassak, Z.S.S. 26; 375. 4 20 R . Samuel b. R. Isaac explains that the grant of freedom to a slave is not an unmixed blessing to him as he no longer may marry a slave girl 'l!>0 n•J�l:J ilnDruc i!i•oD0tv and in general a slave prefers licentiousness to freedom ii'? ttn'l N,'p!>i1::l tti:::iv (Git. 1 3a) , cf. Papinian : Si venditor ab emptore caverit ne serva manumitteretur neve prostituatur, D. 18.7.6. Cf. F. Hayman, Frei­ lassungspflicht und Reurecht, Berlin, 1 905, p: 3. 4 21 In Roman law, liberty is favored above all things. Libertas omnibus rebus favorabilior est. D. 50. 1 7 . 1 22 and its value is limitless, lnfinita aestimatus est libertatis et necessitudinis (D. 50. 1 7. 1 76. 1 ) . Hence in doubtful cases, a decision must be rendered in favor of liberty. Quotiens dubia interpretatio 417 41 8

,,::ir.,

PECULIUM IN JEWISH AND ROMAN LAW

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dom rn,, n, ,:ii ,,, nnn� N�i'tv ,:iv� Nin m:.n because the master could refuse to support his slave422 ,,:iv nN 1n, N?!l) m:,, CNto 'Ntoi. This accorded well with the generally accepted maxim, that one may act to another's advantage in his absence, but not to his disadvantage save in his presence N?to c,N, 1':Hto '£>? l'l!l:J N?N i', l':JM l'N1 l'lfl:J. So far we have attempted to indicate the development of property rights of the sub}ecti in Jewish law, in order to see what a sharp contrast on the whole is presented by the institu­ tion of peculium in Roman society. It goes without saying that peculium itself has had an eventful history which we shall trace in the · most meager outlines. 423 There are hundreds of details with respect to peculium for which there is nothing corresponding in Jewish law, which we deem to be futile even to mention , much less to discuss here. We shall limit ourselves to those aspects therefore of this legal institution which betray parallel modes of legal thinking, or manifest wide divergencies in practical application. Since peculium is primarily a study in the laws of property, it is natural to expect that the economic, political , and social differences between Jewish and Roman society will account for most of the differences between the two systems of jurisprudence in this respect. In early times when Rome was largely an agricultural city, libertatis est, secundum libertatem respondendum erit ( D . 50. 1 7 .20) . The doctrine of favor libertatis has in fluenced many a decision in Roman Law. Relevant to our discussion in the opinion of Scaevola that if manumitted slaves remain for five years in a state of freedom , it would be contrary to the principle of favor libertatis to annul the freedom once it was granted. Servi autem manu­ misi si per quinquennium in libertate morati sunt, semel datam libertatam infirmari contrarium studium favore libertatis est. D.40.4.29. Cf. Index Inter­ polationum ad loc. and also the view of Maecianus D.35.2.32.5. For Favor libertatis, cf. Jean Imbert, Melanges de Visscher, vol . I , 467-8. 422 Cicero, with respect to slaves, remarks : operam exigendam, iusta prae­ benda, they must be required to work, they must be given their dues. De Ojficiis, 1 .41 . 4 23 For the understanding of the history of pecuUum, we are heavily in­ debted to Micolier, Pecule et Capacite Patrimoniale, Lyon 1932, 8 1 4 pp. Cf. the review by Kaser, Z.S.S.54 ( 1 934) , 392-402, and G. Longo, i n Studia et Documenta Historiae at Juris I , 1935, pp. 392-422 .

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there was a rule that persons who are under the control of others could . not possess or own property , 424 As long as the Romans were _ mainly small farmers , this law did not interfere with the economy, as each domus produced the necessary food and articles of prime necessity425 and worked no hardship for slaves were few in number. 426 All this changed in the republican period. The huge con­ quests brought in its wake economic and social transforma. tions, 427 such as the rise of great fortunes, the necessities of commerce , and the increase of slaves. Hence grave incon­ veniences attended the patrimonial incapacity of slaves and of the filius familias. For they . could not engage in transactions nor participate in the commercial life , in their own name or .in the name of the dominus or paterfamilias. The Romans, as a result of the accumulation of vast fortunes, acquired many slaves, ·that were mostly prisoners of war. 42 7a Thousands of persons were kidnapped by pirates and were sold in the slave market at Delos, the center of the slave trade. To them they began to entrust the exploitation of their rural property . 42 8 Consequently, the ius civile which suited the small farmers , was inadequate to meet the requirements of the new economic system. Already in the time of Plautus it was customary4 28a to 42 4

The slave as far as the civil law was concerned had no rights, in spite of the fact that natural law declared all men as equals. Quod attinet ad ius

ci'IJile, servi pro nullis habentur, non ta men et iure naturali, quia, quod ad ius naturale attinet, omnes homines aequales sunt (D.50. 1 7.3 1 ) . Hence a slave

could not participate in the formalities attached to the execution of a will because iuris civilis communionem non habet ·in totum (D.28. 1 .20. 7 ) . However he was subject to the dominica potestas (D.2 1 . 1 . 1 7.10). · 42s Cf. Pliny, Historia Naturalis 18.28. 1 , Wallon, Histoire de l'Esclavage I I . 10. 426 Pliny, 33.6. 10, Valerius Maximus 4.4.8 also 4.4.6. 42 7 Huvelin, Histoire de droit Commercial romain, p. 26. 42 1a Gibbon remarks that the custom of enslaving prisoners of war was extinguished in the thirteenth century, cf. Decline and Fall, Chapter 38, note 97 (vol. II, p. 412 in Modern Library edition) . 428 Louis, Le Travail dans le mon'de Romain, p. 1 62 ; W. S. Davis, Influence of Wealth in Imperial Rome, 205-207 ; Sandys, Companion to Latin Studies, 362-365 ; M unro, Source Book of Roman History, 1 79-192. 42Sa That peculium originated in custom was noted by Savigny, System

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appoint slaves for certain business429 and thus the institution of peculium came spontaneously into being, 43° Peculium was given to the alieni iuris to derive profit from it. Such goods entrusted to him were called peculium profecti­ tium. I t was a quasi patrimonium43 1 which he administered as if it were his own, but de iure it belonged to the dominus or paterfamilias, to whom the peculium returned iure peculii at the death of the slave . 4J i a About 1 00 B . C. E. 43 2 the praetor formulated rules of pro­ cedure which made it possible for a third party who dealt with the alieni iuris, to obtain from the paterfamilias or dominus, payment for what was due to him, since the paterfamilias profited from their commercial affairs. In certain transactions, there was an action de peculio and de in rem verso for the part of debts contracted. Three actions were granted for the entire sum (in solidum) due to the debts of a third party, namely, the actio exercitoria (D. 14. 1 ) institoria (D. 14.3) and quod iussu (D. 1 5 .4) . Now the praetor433 did not define peculium, he merely gave j udicial sanction to a pre-existing institution, and by the remedy actio de peculio, a simple economic arrangement was transmuted into a legal institution.43 4 It was primarily the task of the j urisdes romischen Rechts, I . 77, note a, cf. also Volterra, Sui 'mores' della 'Jamilia' romana in Rendiconti . . . Accademia Nazionale dei Lincei, Serie VI I I , vol.

IV, 1 949, p. 52 1 , note L 4 •9 Wallon I. c., I l . 1 1 9-120. 0° Costa, Il Diritto privato Romano nelle comedie de Plauto. ◄3 1 Cf. D . 1 5 . 1 .5.3, and D.50. 1 6. 182 and Kaser, Z.S.S.54, p. 394, note 2 . As regards ordinary ,Peculium, children and slaves stood on the same footing in certain respects. In classi�al law, the filius familias could institute claims in his own name which the slave could not. Cf. Roby, Roman Private Law, 1 . 66, note 1 . Pernice, Labeo, 1 . 160. Savigny, System des romischen Rechts , I I .99 and Mandry, Gemeinguterrecht, 1 . 200. · 43 xa Cf. the story of Cassius who devoted his son's peculium to Ceres, after he put him to death, Valerius Maximus, V.8.2, cf. Pernice, Labeo, 1 . 124, note 5 1 and Volterra, Il Preteso Tribunale Domestico in Diritto Romano, in Rivista Italiana per le Scienze Giuridiche, vol. I I , 1 948, p. 1 1 1 . 43 • Micolier, Pecule, ·p. 6 1 . 433 I n his edict, D . 1 5. 1 . 1 pr. , and 1 . 434 Vernay, Servius e t son ecole, Lyon , 1909, p. 145.

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consults to define peculium and to answer questions posed by the application of the edict, such as the nature, and origin of peculium, the rights of the paterfamilias, of the persons in potestate, and of the third party in the peculium, and when did an actio de peculio in its various forms lie? The oldest definition of peculium is given by Tubero :435 What the slave has separate and apart from his master's accounts with the permission of the latter, after deducting these from anything which may be due to his master. quod serous domini permissu separatum a rationibus dominicis .habet, deducto unde si quid domino debetur. . This definition as Micolier43 6 suggests, was borrowed from his teacher Servius as is implied in D. 1 5 . 1 .9.3. To this explanation Servius adds : "Where any­ thing is due to those who are in his power" for no one doubts that this also belongs to the master. Hu,ic definitioni Servius adiecit ' ' et si quid his debeatur qui sunt in eius potestate,' ' quoniam hoc quoque domino deberi nemo ambigit. The praetorian reform carried with it several advantage�. The peculium, which gave the slave a certain interest, was more beneficial to the master, than would have been a mere agency (praepositio) . 43 7 For it stimulated the activity of the slave by personal gain and the master was relieved of watching over him. While the praetor remedied the inconvenience of patrimonial incapacity, he did not attempt to allow the peculium to develop into full patrimonial capacity. The institution of peculium grew up as a result of the compromise between two tendencies which have characterized the Roman spirit, a sense of reality and a reverence for tradition. The peculium was formed by a grant from his master, 43 8 and the keeping of separate accounts were indispensible for the efficacy of the concession. 439 The permission of the master was D. 15.1.5.4, cf. Solazzi in Studi Giuridici in onore di Faddp,, 1906, p. 35 1 . Pecule, p. 59. m Juglar, Du Role des Esclaves et des affranchis dans le Commerce, Paris, 435

436

1894, pp. 3, 1 1. 438 While savings were the main source of peculium in the time of Plautus, it is little mentioned in classical j uridical sources, cf. D. 15.1.39, for parsimonia as a source for peculium, cf. Mandry, Gemeindeguterrecht, 1 1 .26. 439 D. 15. 1.4 pr.

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necessary for the constitution of the peculium440 whether it was formed ex re patris or ex re aliena. With regard to the increase of peculium, it seems that from the time of J ulianus it could be augmented ex re alie-na without the concession of the master or paterfamilias, provided that the subjecti did not act in behalf of the former. 44 1 As for the rights the subjecti had over . the . peculium, some acts required special permission , some only general authoriza­ tion. At the time when peculium could come into being only with the consent of the master, or father, no further special authorization was necessary, but from the time of Marcellus, the permit of the paterfamilias was not necessary for the forma­ tion of the peculium, hence the authorization was implicit in the status of the · subjecti or as Micolier puts it, le pecule est cense exister des la naissance ou mise en puissance du subjectus. 442 With regard to the power vested in the subjecti, some texts speak merely of administratio peculii, whereas other sources describe it as libera administratio peculii. Some scholars443 con­ sider these terms as synonymous, whereas others444 held that there was a distinction between these two terms. Now the subjectus could not make a will concerning the peculium even with the express authority of the paterfamilias44 5 unless it was mortis causa donatio44 6 or if they were public slaves they could dispose of half of their peculium by will. 447 They 44° D. 15. 1 .6. Pomponius remarks that whatever the slave acquired without the knowledge of the owner is peculium, if the owner had known it, .he would have permitted it to be in the peculium (verum id quoque, quod ignorante

quidem eo adquisitum sit, tamen, si rescisset, passurus erat esse in peculio. ) Cf. D. 1 5 . 1 .49 pr. For the passage cf. Micolier, Pecitle, p. 2 77 et seq. This

rule reminds one vividly of the principle of m1,c N?rv W1N', Baba Metsiah 2 1b . 44 1 Cf. Micolier, I. c., 2 3 2 e t seq., for a very able and full discussion of these much debated points. 442 Micolier, Pecule, p. 488. 443 Cf. Mandry, Gemeindegilterrecht, II, 103, Micolier, Pecule, 487, note 3. 4 4 4 G, Longo, "11 Concetta classico e il concetto giustinianea di administratio peculii" in A rchivio Giuridico 1 6 (4th series) 1 928, p. 1 84, and Albertario, Studi di Diritto Roman o, I, pp. 139 ff. consider the distinction of Byzantine origin, and that the terms indicated different powers vested in the subjectus. ◄ 4s D. 28. 1 .6. 446 D. 39.6.25. ' 447 Rules of Ulpian, 20. 16.

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could not make gifts4 48 except in special cases449 but could con­ clude loans, 450 sell the res peculiares45 1 pay debts452 and give pledges. 45 J As we have noted above , the slave never owns the peculium but can use it as if he did. Then what is the legal relationship of the dominus or paterfamilias to the peculium. Paulus gives us the following answer : Likewise do we acquire throt�gh a slave, a son who is in our power, particularly with property which form their peculium although we are unaware of the fact as was the opinion of Sabin us, Cassius and Julian , because those · whom we have allowed to possess a peculium, are under­ stood to possess it with our consent. 45 4 However, with respect to the objects acquired by the subjecti for the paterfamilias suo nomine, the possession is �ffected animo suo, corpore alieno, as Paulus again informs us. Possessionem adquirimus et animo et corpore: animo utique nostro, corpore uel nostro uel alieno. sed nudo animo adipisci quidem possessionem non possumus, retinere tamen nudo animo possumus. 4 5s Masters allowed their slaves to acquire property, for they would work better if they entertained the hope of their eventual liberty. The motiyations for manumission were manifold, some times it was an act o( grace from the master to the slave, or a patron's vanity, simple gratitude or benevolence, or for the purpose of easing an irksome situation , or j ust disinterested altruism. The price of an ordinary slave was about 500 drachmae. 45 6 While a slave was permitted to accumulate money in order 44a D. 39.5.7 pr. 44P D. 39.5. 7 . 1 . 45o D. 1 2 . 1 .2.4, cf. Beseler, Beitriige, IV. 126. 451 Cf. D. 44.3. 15.3 and Mandry, Gemeitµieguterrecht, 1 1 .90-92, Micolier, Pecule, 504, note 2 7. 452 D. 12.6.13, cf. Gradenwitz, Natur und Sklave bei der Naturalis Obligatio, p. 34, and Mandry, 1. c. , Il.95, note 1 1 . 453 D. 13.7. 18.4. 454 Cf. D. 41 .2. 1 . 5. 455 Sententia Pauli, V.2 . 1 . 456 Cf. Horace, Satires, I I . 7 .43, and Duff, Freedman in the Early Roman Empire, Oxford, 1 928, pp. 1 6-18.

PECULIUM IN JEWISH AND ROMAN LAW

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to purchase his freedom , 457 such an agreement was not always enforceable at law.4s8 J ulian tells us that if a slave owned in common is ordered to be free on condition that he pay ten aurei, he can pay the sum out of his peculium, no matter in what way he obtained it (ex peculio dare potest, quod quocumque modo adquisitum habuerit) . 4s9 Ulpian4 60 observed that it makes little difference whether the slave offers the money out of his peculium or he received it from some one else , for it is accepted that a slave who pays money out of his peculium will obtain his liberty, (et parvi

refert, de peculio ei offerat an ab alio accepta : receptum est enim , ut servus peculiares quoque nummos dando perveniat ad libertatem) . From Ulpian 4 61 we learn too that if a statuliber should pay

more than he has been ordered , suppose he had been ordered to pay ten and he pays twenty , whether he coun ted the coins ·, or put them in a bag, he will obtain his freedom , and recover the surplus, (et superfluum potest repetere) . An action in jactum 4 62 was granted where a slave promised money for manumission and failed to pay it when he became 4s7 D. 33. 8.8.5 and D. 3 7 . 1 5.3. For payment to receive manumission, cf. B uckland , Roman Law of Slavery, pp. 640-646. Roby , Roman Private Law, 1 .320. 45 8 J olowicz , Historical Introduction to Roman Law, p. 80. 459 D. 40. 7 . 1 3 . 1 , cf. Donatuti , Lo Statulibero, Milan, 1 940 , p . 54, Buckland , Slavery, p . 5 7 8, note 1 . Rotondi , Scritti Giuridici, M ilan, 1922, 1 1 1 .82. For the self-redemption of slaves , cf. Arangio-Ruiz, Persone e Famiglia ncl Diritto dei Papi,ri, Milan , 1 930, p. 7, note 2 . ◄ 60 D . 40. 7.3. 1 , cf. Donatuti , l . c. , p . 238 , and J hering , Geist des romischen Rechts, 1 1 . 1 69. In D. 40. 1 .4. 1 Ulpian argues hypothetically that a slave cannot properly be said to have been purchased with his own money, for a slave cannot have money of his own , (cum suos nummos servus habere non potest) , but if we close our eyes, (conivent-ibus oc1tlis) it may be said that he was bought with his own money, cf. Beseler, Beitrage zur Kritik der romischen Rechtquellen, IV. 1 60 , Arangio-Ruiz , Persone e Famiglia, p. 8 , note 1 , and Taubenschlag , 50 : 1 56 ff. 4 61 D. 40.7.3.6. On this passage, cf. Donatuti , l. c. , pp. 1 6 8-1 69, 2 7 1 . For the rule where a statuliber was captured and ransomed , and had to pay 10,000 sesterces for his liberty , cf. Tryphoninus in D. 49 . 1 5. 1 2 . 1 1 and Donatuti, l. c . , p p. 2 34-5. ◄62 C. 4. 14.3, cf. B uckland, Roman Law of Slavery, p. 690, Text Book of Roman Law, 2nd ed. , p . 86, note 9.

z. s. s.

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If he took his peculium he was liable for an action de for one year as the ma·ster would have been had . he kept it. An enactment of Diocletian4 °3 anno 294 provides that once the master manumitted the slave after he received the money , the freedom can no longer be revoked. Licet accepta pecunia free.

peculio

dominus te manumisit tamen tributa libertas rescindi non potuit.

The implication seems to be that the freedom does not come automatically with the money. Otherwise it is- not clear why the question was raised in the first place. M arcellus4 64 ob�rved that it makes a great deal · of. difference whether one has liberated his slave for money, secured from him, or from a friend of his, or where a some one else's slave becomes his property and pays him a sum of money for his freedom (an ab eo servo, qui cum ·esset alienus in fidem eius

devenit) .

Javolenus465 tells us that an action de in rem verso is not available against one who has liberated a slave for money · he received , because, by granting him his freedom, he is not en­ riched by the money. Q'l!i nummis acceptis servum manumisit,

agi cum eo de in rem verso non potest, quia dando libertatem locupletior466 ex nummis non fit. However, Ulpian adds467 that

if a slave gives his master a sum of money he borrowed from a third party, in order to be freed, this sum is not counted as peculium there is ve-rsio with respect to any excess paid hr the slave over his actual value. Quod si servus domino quantitatem

dederit, ut manumittatur, quam a me mutuam accepit, in peculium quidem hanc quantitatem non computari, in· rem autem videri 4 63

C. 7.16.33.

◄64 D. 37.1 5.3, cf. also Perozzi, Istituzioni di Diritto Romano, 2nd ed., I . 1 65, note 2. 4 6s D. 1 5.3.2 and von Tuhr, Actio de in rem verso zugleich ein Beitrag zur Lehre von Geschitftsfuhrung, Freiburg, 1895, p. 1 78. 466 Cf. Pomponius who remarked : lure nature aequum est neminem cum alterius detrimento et iniuria fieri locupletiorem, D. 50. 1 7 .206, �f. also D. 1 2. 6,14. On unjust enrichment, cf. Cuq, Manuel des Institutions Juridiques des Romains, Paris, 1 9 1 7 , p. 534, note 2 and 3. ◄61 D. 15.3.3 'pr., cf. Buckland, Slavery, p. 180. note 1 .

PECULIUM IN JEWISH AND ROMAN LAW

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versum, si quid plus sit in eo quod servus dedit quam est in servi pretio.

The master who liberated his slave, during his life, not only gives him liberty but also means to live. The slave keeps the peculium, unless he reserves it for himself, 468 but a slave freed by a testament could obtain his peculium only by a formal legacy. 469 The peculium quasi castrense which we have mentioned above 470 is alluded to in several parables in the Midrash. With regard to parables one must be cautious not to take them too literally, 47 1 as they are embellished partly for literary effect, and partly in order to enable the preacher to score his point more effectively, yet we believe there is a sufficient kernel of reality in these parables, to help us get a glimpse of the knowledge of the Roman imperial life by the rabbis. One parable47 2 tells of a king who gave his imperial servant a field as a gift. 473 Since this field was given to him was uncul­ tivated , he improved it and planted a vineyard in it ,,o, ?rvo �,iii! ,::131i1 ,os, �'iltv n,o:, N?N ,, ilm N? mno::i nnN il,rv ,,::131, 1mrv iONi Ci:J i13'�l, ,rn N'iltv mo:, N?N illnl N? ,,,:l i'IO iOt-n iln':ltvin N'iltv mo:, N?N mm N? ,,,:l i!O . Another parable474 takes its cue from a king who had a favored 468 Cf. Vat. Frag. 261 . D. 15.1 .53, D. 23.3.39 and Micolier, Peeule, p. 205, note 4, cf. also Virgil, Eclogues, I.V.33, Nee spes Ubertatis erat, nee eura peculi, cf. F. Stella Maranca, "Il Diritto Romano e !'Opera di Virgilio" in Historia, vol. VI I I , 1930, p. 587. 4 6 9 Cf. Institutes of Justinian, 1 1.20.20 and Accarias, Precis de Droit Romain, I "(4th ed.) , p. · 141 . ◄7° Cf. above, note 28. ◄1 1 Cf. Krauss, review of Ziegler's Kiinigsgleichnisse in the Z . f. H. B . vol. VI I , (1903) , p. 17 where he points out, among other things : "auch bildet das

Wort "Konig" kein eonstitutives Element der Gleiehnisse."

◄7 3 Cf. Sifre Deut. 8 (ed. Finkelstein, p. 16), Yalkut, I, 80 1 . ◄73 Cf. C . 1 2.30. 1 pr., a decree of Constantine and Severus anno 326, ordering all the Palatines to hold as -peculium castrense any property which they may have obtained through their own frugality; or by our donations vel si parsi­ monia propria -q_Uaesierint vel donis nostris fuerint conseeuti. That imperial slaves could hold property of their own, cf. Taubenschlag, Law of Greco­ Roman Egypt, p. 66, note 103. 474 Sifre 1 1 7 and 1 19, ed. Horowitz, p. 135 and p. 143.

270

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servant (n':i 1::1) unto whom he gave a field as a gift. However , the king failed to write a deed, and have it signed, or register it in the official records :475 C"N::,iv:i ,, il?Vil �,, cnn N?i :in:, N?i. Consequently a person came and put in a claim for this field. Whereupon the king said to his servant : Let him who wil l come and claim agq.inst you, for I am now writing a deed, having it signed, and entered into the registry. That imperial servants were appointed managers of the im­ perial domain was known to the rabbis who made use of it in their exegesis. Thus R. Judah4 76 referred to a king who had a favorite servant (M':I 1::1) 4 77 to whom he entrusted the busint�s of his whole domain ,i, il'i1fD il1' ',::, ?V ,�'?tvm . 4 78 Now, that servant went and lent money to people who could furnish sureties for payment (c':iiv ,,, ',37 c,N 'J:I? n,',n, ) ; to one he loaned 50 pieces of gold, to a�other 100 and to still another 200. Finally, the debtors fled. When the king learned of the incident, he was much exercised. Did I make you· a manager over my domain479 to ' bring loss to my property480 (c,:iN', N?N) ? Whereupon the servant replied : I lent the money and I take it upon myself to make good (c?rv? Cil? 'm' inN:ii ) the total amount (?::,il ?V 7,'0VN 'JN) . ◄7s There seems to be a reference to KaTa:ypai::l referred to the nuptial benedictions, Ket. 7b.

286

ro,�

JEWISH A N D ROMAN LAW

28 is commonly used to designate the betrothal of a term free woman ; ,9, is the designation for the betrothal of a Hebrew bondwoman (Ex. 2 1 .8) · and -=,in 29 is the term used to connote the betrothal of a Canaanite slave (Lev. 19. 20) . Whether a divorce was necessary to terminate a betrothal is nowhere specifically stated in Scripture ; but in view of the fact that the parties were termed man and wife, it wou-}d _ seem that it' would be required. When we examine the Tannaitic sources, many new features of the institution of betrothal obtrude them­ selves upon one's notice, which are fascinating to the legal historian . For whenever one studies the development of a legal institution during a given period, one is usually confronted with the following phenomena : · ( 1 ) the ingredients which are retained from before, (2) the principles which are transformed , (3) the introduction of new elements, (4) the discarding of certain features, (5) the reintroduction of old elements which had been dropped. 3 ° What is most intriguing is that curious parallels exist between the Tannaitic law of betrothal and Sponsalia of classical Roman Law, whereas these particular rules are missing both in Biblical and pre-classical Roman Law. The following features in the Tannaitic law of betrothal are either new or show marked deviations from the Biblical law of betrothal. (1) the minimum legal requirements for a legal act of betrothal , (2) Prerequisites for betrothal. (3) Rules con­ cerning the contracting of betrothal. (4) The writing of the Ketubah at the time of betrothal. (5) Betrothal on condition . (6) Rules concerning betrothal by fraud or mistake. .( 7) Be28

For the etymology of 1/Jitt, cf. S. A. Cook, The Laws f Moses p. 78, note 1 . For huruppate in Assyrian, cf. Driver and Miles p. 482 . According to one rabbinic view although not the accepted one, Lev. 19 :20 deals with the be­ tt? c•i1.l1N c•inN trothal of a Gentile bondmaid to a Gentile bondman •::, 'lVl::> ,:iv, no,1tt0i1 M'lVl:J iln!lW::l ill/J!>M N? . Sifra ed . Weiss f. 89c, Keritot 1 1a. On this passage cf. also Selden De Jure Naturali 1655 , p. 639. Cf. Code of Justinian IX.9.23 Servi ob violatum contubernium adulterii accusare non possunt. 3 o As was already noticed by the rabbis, cf. for example, their remarks concerning Habdalah Ber. 33a Yer. V.2 ; concerning the formula ?l"Tlil ?ttil Yoma 69b ; Yer. Ber. VIl.3, on a custom concerning mourning, Sanh . 1 9a, Yer. Ber. III.2. 29

im,,,

BETROTHAL IN JEWISH AND ROMAN LAW

287

trothal by Proxy. (8) Gifts nm'7:io during betrothal. (9) Nego­ tiations before betrothal p:>iiw ( 10) J uridical effects of betrothal. Some of these innovations are not entirely new but represent a transformation of older concepts. As we have j ust seen, the payment of the Mohar to the bride's father, constituted most likely the climax of the act of betrothal in Scriptural times. I n the Post-Biblical era, the betrothal was realized by the performance of an act of acquisition , and the making of a decla­ ration by the bridegroom to the bride in the presence of two witnesses. The consent of both parties, or the consent of the father of the bride, if she were an infant, were legal prerequisites to a valid betrothal . The act consisted either of conveying something to the bride,3 1 even if it be merely of nominal value,3 18 or the presentation of a writ,3 2 or it might well be a single experience of cohabitation33 ,�w:i -=,o:>:i c,:,,, w',w.:i M'JPJ iTWt-tiT iTN,::i:n (Kid . I . 1 ) . Note that the M ishnah says : A woman is J ' Whether a man who betrothed a woman by waiving his payment of a loan due to him from · her, and then giving her a Perutah, acted legally or not , is said to have provoked a controversy as far back as Saul and David. ( San h . 1 9b) Sau l holding t h e view that i1l?Otlt il'npi n�,,!>, n, ,,., and David taking the opposite view, Tosafot (Hag. 1 6a s . v. • oi•) tried to harmonize the statement · of the Yerushalm i that the Semikah controversy was the first of its kind with the legal d ispute between Sau l and David without taking cognizance of the remark of the Tal mud concerning David oipo ? ::>:i ll111'::> n::,,nrv (Sanh. 93 b ) . 3,a This is apparent from the statement o f Beth Hillel who val idated a betrothal even when the bridegroom gave the bride only a Perutah or its equivalent ( M . Kid. 1 . 1 ) . 3• With regard to the writ , cf. baraita in Kid . 9a, Yerushal mi 1 . 1 . Tosefta I .2 . The writ was known as ) ' Oli'tlt ,�rv cf. M. Baba Batra X.4, ) 'rv,,p :in:, (Yer. Git 1 1 1 . 1 [44c ] IV.4, Deut. R. 1 1 1 . 1 2 and c•rvl •rviip ( M . Moed Katan, 1 1 1 . 3 ) . Cf. Gulak , Das Urkundenwesen im Talmttd, Jerusalem 1935, p . 3 6 ff. 33 According to Tosefta Kid . I .3 cohabitation constitutes an act of betrothal if there is intent to that effect. 1•rv1,p o,rv, ntit•:i . Cf. Maimonides n,rv•tit 1 1 1 . 5 , and X. 1 . For the expression nt1t•:i:i1 • . • 1n:i:i 'tit:>! :ititn cf. Yer. Ket . IV.6 and Tosafot Kid . _3 b s. v. :ititn. With regard to the Yebamah the rule is ntit•:i n:i )' izm ,�rv, 9 0::, J'Nl il:l n,o, l . Kid . 14a and paral lels. For iltit•:i:i 1•rv1,p cf . Yer. Yeh. V l . 5 (7c) , X I V . 1 (14b) and Babli Ketubot 73b. With regard to ntit•:i •rviip Rash i remarks (Git. 8 1a) that he must say before witnesses 'l' 1il j•rv,,p oiv, , v,:i , and in Yer. Ber. IX. 14a, we read nviv:i il::>i:i nmv� n,�cn ,::, il?•p:i:i 1 •rv1,p c• ,01t1t w,, il? •:i�, i,V'pno yi n Jl1"tvll , cf. Ratner p . 212, and Boaz Cohen , The Shulhan Aruk as a Guide for Religious Practice, p. 30.

288

JEWISH AND ROMAN LAW

acquired34 in one of three ways. Consequently, betrothal in Tannaitic times was a symbolical form of acquisition . How did this form of betrothal originate ? The Tannaim found an allusion to the threefold method of betrothal in Deut. 24. 1 . 35 However, to the critical student, the proof is ha,r dly Cf. Ruth 4 : 1 0 i1t/JN ,', Wlp I have acquired to be my wife, and in Kid . 6a we read ,', il'llp ntt '1i1 as a formula of betrothal . In ol d Roman law coemptio was one of the ways of establishing a conventio in manum (Gaius, Inst. I . 1 1 0) .'\ccording to Volterra, the idea of marriage by purchase is alien to Roman Law, cf, Diritto Romano e Diritti Orientali 193 7, pp. 1 10-1 1 1 . Rashi Kid . 3b s . v. ilt/JDl N'lP'-'' remarks that a woman is betrothed by money only if she received · it 1•rv1,p lN ;,n•p lN J'lP 11rv', n,,n::i, cf. Git. 82b p•v::i N'?l/!) J'lP, cf. also J. Kohler, Z. V. R. 26 ( 1 9 1 1 ) , 45 6-4•60 and M. Ket. 1.6 and VI l . 8 mv� npc •npc cf. also Colorni , Legge Ebraica e Leggi Locali, Milan 1945 , p . 182, note 2 . 35 Cf. Kid . 4b , Yer. 1 . 1 , Sifre Deut. 268. Note that the Sifre employs the term il? 'l/::1 instead of i1N'::i . The reading in the Sifre and the Yerushalmi is the more original , because the text of the baraita in the Babli has a later addi­ tional phrase ,�rv::i n•lpltv 11:::1 iottn ,�rv::1 mpl J'N J::Jtv i1N':l? il'-', The difficulty with the Tannaitic interpretation is that Deut. 24. 1 refers only to marriage . In Scripture np', regularly signi fies marriage cf. for example, Gen . 24.67. I n Deut. 2 0 . 7 i t i s expressly used in contrast t o betrothal ilt/JN fl/1N itvN fll'Nil •01 il np', N? l and in Ruth 4.13 ·ni, nN rv::i np•i fol lows verse 10 where we · read · ilf/JN •', Wlp, Cf. also Schwartz , MG WJ 45 (190 1 ) , p. 283 ff. However in Talmudic sources l'n,p•? sign fies betrothal , cf. Kid. 2 2a , 50b, Tosafot ad Joe . s . v. N? , 67b, and Yeh . 9 7a i171n i110N c•nip, 71, cf. Tosafot Kid . 4b , s . v . il? l/:ll ; and denotes marriage, e . g. Kid . 14a ilt/JN? ,, ilnp,, il'?l/ N:l' i10:l' where Rashi observes il'nlP'' Jil ilntt•::i and in Sotah 1 2a and parallels iltvl/ C il? ilflll/tv J l' 1!JN:l i1:J'fllli1 J'nip•', . Noteworthy is that Rashi on iln•m i1Nll:'l Kid. 67b remarks as fol lows rrv,,p 1,rv, iln'ill , I n Tobit 7 : 1 2 we read : Have her and lead her away to thy father EXE Kai. a,ra:ya:ye 1rpos rov 1rarEpa. I n classical Greek , EXW mostly without -yvva'i'Ka is used in the sense " to have a wife", cf. Liddell and Scott s. v. EXW, I n Hebrew, the word "to have" is often rendered by the c ircumlocution ', il'il hence the rabbis in conj unction with certain scriptural passages employed the word i1'li1 to signify betrothal o r marriage. Thus with reference to Deu t. 22 :29 i1WN? il'iln 1',, they comment il'lil il:l tv•tv iitllN? (Ket. 29b) . Noteworth y is the rendering of the Greek Kai. a.vrov turai -yvv� and of th e Vulgate et habebit eam uxorem. With respect to Deut. 24.2 inN tv'N? ;,n•m the rabbis make the analogy i1N'll:'? i1'li1 11J•po Kid . Sa Yer. I . 1 . The Septuagint translates the verse as follows : Ka.I. . . . '}'Evera.i avop 2 frEpCf, whereas the Vulgate freely renders the passage : Cumque egressa alterum maritum duxerit. From Deut. 2 5 :5 mm ntvN il'iln N? , r tv'N? illl:lnil Rab derived the rule i1C:l':J J'Oflln rrv,,p J'Ntv by l'.'eading into the verse the statement , r tv'N� i1'li1 il::l il'iln N? cf. Yeb. 13b a nd Yer. I .2c bot . 34

BE�ROTHAL IN JEWISH AND ROMAN LAW

289

convin cing. It seems to be fairly clear that the Tannaitic act of betrothal is a transformation of the Biblical Mohar. 3 6 Whereas the bride price in historical times was paid to the father, in the ,q'annaitic era the money was given to the bride37 or to her father if she were a minor.3 8 In Tannaitic legal parlance, marriage was viewed as a reli­ gious institution which partly impinged upon civil law. 39 In matrimony, the wife became the exclusive possession of her husband in so far as conjugal duties were concerned, and the violation of these sacred vows cons_tituted a maj or religious offence. At the same time, nuptials secured for the husband certain monetary advantages such as the right to the dowry , and inheritance of the wife, if she predeceased her husband . The Tannaim in search for a terni for betrothal that would embrace both concepts, felicitously selected the word 1,w,,p which literally means sanctification. 4 0 In betrothal , the bride The verse in Greek reads : ovK fora, � -yvv� TOD TE0P'T]Koros e�w a.vopl µ� i-y-yltovn, whereas the Latin version reads : uxor defuncti non nube.t alteri. Not real izing the true origin of the rule concerning cohabita tion as a legitimate form of betrothal , the Amoraim were puzzled and raised the query, whether it has the legal significance of marriage or of a mere betrothal Kid . 10a, the same question was raised anent il;)NI;) Yeb. 29b. J 6 This is implied in the Tannaitic remark in Kid. 46a i1WK? ,, 1J,i1/;)' i;,I;) 1 •w1,p U1J 'i1 ;i::,•,�ru, cf. also R. Zera's remark in Yer. Ket. I l l . 1 JnlN n:i•i N? 1:::l?:::l ii111J? N?N :::lll'1::>i1, cf. also Koschaker, A rrha Sponsalicict p. 389. 37 In Egyptian documents of the Ptolemaic period , the marriage contract is between the husband and the woman, and not her father, cf. Huwarrv and 5b s. v. ::1,1 and T. Yeh . XI I I . 2 . s 4 For Roman betrothal , c f . Corbett, The Roman Law of Marriage 1 930, pp. 1-23, Koschaker, A rrha Sponsalicia, 383-4 1 6 and Die Eheformen bei den Indogermanen p. 89 et seq . , Vol terra, Studio I-I I I , and Ricerche and Monier, Manuel Elementaire de Droit Romain , Paris 1947, pp . 2 75-2 7 7 . ss Cf. Erdmann , Die Ehe im. alten Griechenland, 1 934, p . 2 3 2 , note 23 and the literature cited there. Hitzig (Z . S. S. 1 8 , 1 897, p. 1 5 3 ff.) agrees with Hruza and Beauchet whereas Dareste (Revue Historique de droit francais 2 1 , 1 897, p . 624 ff.) bel ieves that they went too far. For betrothal before entering into and living together during military service (as sponsus and sponsa) in legitimate concubinage, cf. C. I . L. VI I I .285 7 , 3065 and P. Meyer, Z . S. S. 1 7 , 1 896, p. 49, note 1 . s6 Aulu s Gellius, Noctes A tticae IV.4. s1

L. c. Is contractus stipulationum sponsionumque dicebatur sponsalia.

On marriage as a contract n•i::i in Bibl ical parlance, cf. Ezek. 16.8, Mal. 2 . 1 4, and Prov. 2 . 1 7 and Low, Gesammelte Schrijten I I I . 2 1 and B uchler, Lewy Fest­ schrijt p . 11 7 . In Ezek. 1 6. 8 and Prov. 2 . 1 7 the term n•i::i is rendered in the Vulgate by pactum. In early Latin sources mulier pacta is employed in place of sponsa or desponsa, cf. E. Costa, Cicerone Giureconsulto, Bologna 1928, I , p. 5 7 , note 4 .

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force, 58 although the texts are not so explicit. Thus Ulpian remarks, moris Juit veteribus stipulari sibi et spondere uxores juturas (D. 23. 1 . 2) and Florentinus defines Sponsalia as mentios9 et repromissio60 nuptiarum Juturarum (D. 2 3 . 1 . 1 ) .

However in classical Roman Law, even if stipulations for a penalty were added , it was held that proceedings could not be · instituted against the party that_ broke the engagement, in­

honestum visum est vinculu poenae matrimonia obstringi sive futura sive iam contracta61 (D. 45.. 1 . 1 34) . Just as in Jewish law

a woman may be betrothed by a writ, 62 a similar custom existed among the Romans. 63 I n early Tannaitic times, it was an established fact, that the 58

Cf. :Corbett, Roman Law of Marriage pp. 1 2-13, and Westru p , Z. V. R. 42, (192 7 ) , pp. 64-67. 5 9 Karlowa suggests to read conventio, cf. Romische Rechtgeschichte, 1 1. 1 7 8 .Perozzi, Istituzioni di Diritto Romano, Rome 1928, I , 354 note 1 and J. Arias Ramos, Derecho Romano, 3rd ed. Madrid , p. 474, note 549. 60 Medieval sources refer to promises made at the time of an engagement to marry. 1•::,1,rzh mn�:li1 mrvv, J'ii:iiru::,i (Eben ha Ezer 50. 6) , cf. Yer. Ber. J l l .1 (6a) ilft!N ,, in•�::i;, J:J ON N?N. R. Tam observed that a promise made by giving the right hand had the full power of a covenant. il'il 1'):> nJl'pn::i ;in�:,.;, n•i::i nin•i::, N'illD en •, iz:,iN, cf. Semag, negative precepts 241 ed. Kopys f. 48d . Cf. also Colorni, Legge Ebraica e Leggi Locali 1945, p. 283, note 29 and A . Ehrmann, Der Handschlag, Bern 1 945 . For Handschlag i n Roman law, cf. Beseler Z. S. S. 49 (1929), 409-10, and Bruck, Die Schenkung auf Todesfall p. 118. From Tertullian we learn that it was the custom for the bridegroom to grasp the right hand of the betrothed non sustinuit dexterae collucationem (De Virginibus Velandis XI) cf. also Erdmann, Die Eke im alten Griechenland p. 231 , note 1 7 . Cf. Tobit 7 : 1 2 (Sinaiticus M S.) Ka.L }..a,{3oµEPOS Tijs XELpos a.vTijs and the Vulgate translation, Et apprehendens dexteram filiae suae, . dextrae Tobiae tradidit, cf. Gulak, Das Urkundenwesen im Talmud, p. 43 and Volterra, Studio I. 78, note 2. 61 Cf. Sohm-Mitteis-Wenger, Institutionen des Romischen Privatrechts , Munich 1933 , p . 508, note 7 . 6 • In case where the betrothal was b y writ, the question arose among the early legal commentators whether the declaration could be dispensed with , cf. Meiri to Kiddushin, ed. Schreiber ; Jerusalem 1942 , pp. 4-5 . 6J D.23.2. 1 8. For references to non-juridical sources, cf. Marquardt, Das Privatleben der Romer, p. 38, note 2 and Voigt, Romische Rechtsgeschichte, I I , . 537, note 27. For a contract of betrothal of a soldier, cf. Taubenschlag,. The Law of Greco-Roman Egypt, New York 1 944, p. 82, note 2 1 and Angelo Segre , in Byzantion XVI, 1944, pp. 566- 69, see also above note 55.

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Ketubah

or marriage contract was written at the time of betro­ thal .64 Similarly it was customary at the time of E"f'YV'YJULS to arrange for the c/>Epvr,. The purpose of the c/>Epvr, 65 was to make ' ' EKELVCf' ' ' ' � LWS , ' '\ '\ ' 1 cu I t, "iva µ'f/' E7r "(EVOLTO p' (l,u a1ra�A«Td.1vorce d'ffi 6 TEU0at. 6 6 I n connection with c/>Epvr, 7 there is an interesting passage68 which reads as follows : If such and such a woman will hate69 such and such husband , and subsequently will not desire his partnership, then she shall take half of her c/>Epvr, 70 N,n l'N

nu,!l n:ioJ ,,nn 72it'num,w:i ,:,.�,n

tot,, it',37::i 'li?!l 1',i1, mJon n,J,',!l

1 ,!) . I n Jewish law, betrothal can take place i n the absence o f the contracting parties, if either or both appoint a proxy , or if the girl is a minor, the agent is designated by the father. 73 It was the duty of the agent to follow the instructions of the principal , otherwise the act would be invalid .74 · However if a proxy failed to carry out his commission , and affianced the woman to himself, the action was held to be legally valid , 75 although the agent was 64 6s

Cf. Buchler, Lewy-Festschrift, pp. 1 22-129. Cf. Lipsius, Das A ttische Recht, p. 472 , 488. 6 6 Isaeus, On the Estate of Pyrrhus, 28. This reminds one vividly of the reason given by the rabbis for the institu tion of the Ketubah, l'l'll:l ;i',p Ni1n N,tv i1N'�1i1?, cf. T. Yeb. I I .4 and parallel passages. 6 7 For the use of the term , cf. Aptowitzer W.Z.K. M. , 24 , ( 1 9 10) , p. 2 1 5 , and Die Syrischen Rechtsbilcher und das mosa1:sch-talmudische Recht, Vienna, 1909, p. 28. Freund, Ehegilterrechte, p . 1 1 , note 3, and E. Weiss, Pfandrecht­ liche Untersuchungen, Beitriige zum romisch�n und hellenischen Pfandrecht, I I , Weimar, 1 9 1 0, p . 1 4 1 . 68 Yer. Ket. VI l . 6 (3 1c) . 69 Cf. Koschaker, Z. A . , 35, ( 1 924) , p, 200, note 2 . 1° Cf. J. N. Epstein, J. J. L. G. , V( 269, note 4 . 7 1 This i s the correct reading a s was pointed out by Prof. Lieberman m:i',;i rz., p. 6 1 . 72 For this reading, cf. Reifmann, Magazin, V I . 1 79, and Lieberman I . c. The reference to marriage as a partnership (mflmtv) does remind one of Modes­ tinus' definition of marriage as a consortium omnis vitae ( D. 23. 2 . 1 ) and Schulz tells us that this definition was evolved after the Greek pattern , cf. Principles of Roman Law, p. 46, note 5 . Monier, li1anuel Elementaire de Droit Romain , 1 947, p. 275, note 2 , and Kubler, Z. S. S. , 1 7, 1 896, p. 364. · 13 M . Kid. I I . 1 , IV.9, T. Kid . 1 1 1 . 7 , IV. 1 . 14 M. Kid. 1 1 .3 , T. Kid . IV. 2 . 7 S M. Kid. I I I . 1 .

.,,, , ,,,

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deemed to be rp.orally reprehensible. 7 6 For this was clearly an example of the abuse of the law. 77 · In Roman law too, as we learn from a statement of Ulpian7 8 there was a provision for the contracting of betrothals by means of a proxy (internuntius) and very often the conditions of mar­ riage79 were settled by the agency of other persons. (et Jere plerumque condiciones interpositis personis expediuntur) . Papinian 80 gives us this interesting opinion. When� a general mandate has been given to a man • by some one to search for a husband for his daughter, (Generali mandato quaere_ndi mariti filiae familias) , it is necessary that the person selected· be intro­ duced to the father who must consent to the marriage before it be legally valid . Ulpian 81 informs us that if a person forwarded a double betro­ thal in the name of another, .he will not be stigmatized with infamy unless that person was in his power. Si quis alieno nomine bina sponsalia constituerit, non notatur, nisi eius nomine constituat, que-m quamve in potestate haberet. In Biblical times, it may be assumed , a father could give his son in marriage at any age. Of Samson , it is told , that he im­ portuned his father to arrange for the nuptials between him and the Philistine girl that pleased him well. 82 However by the Tannaitic period , a change in the law had transpired. The father could not give his son in betrothal, nor a mother her daughter. 83 16

Kid . 58b, T. Yeb . IV.4, n1Noi li1llJ ;,::i li1llll ��N •irov ;,ropro ;,o. F or the theory of the misu se of the law i n Roman j urisprudence, cf. Windscheidt-Kipp, Lehrbuch des Pandektenrechte, 9th ed . , I, § 1 2 1 , note 3, and H. Kreller, Die Theorie des lvlisbrauchs der Rechte in der romischen Rechtslehre , Zeitschrijt fiir auslii.ndisches und internationales Privatrecht, vol . X I , 1 9 3 7 , Su pplemen t vol ume p p . 1 -2 5 . For Islamic Law, c f . M . Fathy, La doctrine musulmane de l'abus des droits ; etude d'histoire jur·idique, Lyon , 19 1 3 . 7 8 D.23. 1 . 1 8 . However i n Greek law, the bridegroom cou ld not perform the E")'")'V'Y/O"LS through an agent, cf. Erdman I. c. , p. 23 1 , note 1 5 . 79 A s a matter o f fact if t h e woman were absent she could b e married by proxy. Mulierem absenti . . . per nuntium posse nubere placet D.23. 2 . 5 . 80 D.23.2 .34. 81 D. 1 1 1 . 2 . 1 3 . 1 . For the latest discussion of Infamy in Roman Law, cf. L. Pommeray, Etudes sur L'Infamie en droit romain, Paris, 1 9 3 7 . 82 J ud . 1 4 . 3 . Cf. also Driver and M i les, Assyrian Laws, p . 1 38, note 1 . 8J T . Kid. 1 1 . 1 . 11

BETROTHAL IN JEWISH AND ROMA N LAW

297

With regard to the marriage of a male under thirteen years of age, 84 there was an increasing tendency to declare it null and void. However, the earlier view was still lenient, a·s may be inferred from the following rule. 85 If a man gave his son in marriage while he was still a minor, the wife had a valid claim to her marriage settlement (Ketubah) since she was married on this condition. This opinion is reflected in a baraita, which apprqved of a father marrying off his children shortly before they became of age (lPiEJ', 7,co) . The later halakah took a decided stand against this view and did not recognize the legality of the marriage of a male under age, as is . shown by the following statutes. If a minor died without children, his wife was exempt from the duty of levirate marriage. 86 If he betrothed a woman , and after reaching his majority, he sent her gifts (nm',:io) as a donatio propter nuptias , the marriage remained invalid. 81 It is this attitude toward the minor that accounts for Rab's severe condemnation of a parent who marries off a son who is under legal age. 88 While the Amoraim89 took no note of t�e discrepancies in the Tannaitic legislation, the medieval legalists were at pains to reconcile the inconsistencies. A Spanish view is represented by M aimonides who declared it a religious duty (c'c.:m n,�c) to give �hildren in marriage shortly before they reach their ma­ jority, but considered it as reprehensible to give a son in marriage before he reaches man 's estate , for sexual commerce with a minor is tantamount to fornication (nm ,c:, mro) . 9° A liberal view was maintained by R. Isaac,9 1 the French scholar. According to him 84 8s

M. Ket. IX.9, cf. also Git. 85a. Sanh . 76b, Yeh. 62b. 8 6 M . Yeb. X.8, bara1ta Yeh. l1 2b. 81 M . Kid. 1 1 .6. 8 8 Sanh . 76b. 8 9 They merely took for granted that the marriage of a male under age is illegal l'Nlrt'l Jl::l1 ll'pn N?i 11:li' Nltu 'NI:), Yeh. 1 1 2h. 9 0 Issure Biah 2 1 :25. Cf. also Sefer Hassidim, no. 1 147, ed . , Berl in, 1 89 1 , p . 291 . 91 Tosafot, Yeh. 96b, s. v . Ntul and Sanh . 76b , s . v. 71Qo. The history of the rule of the marriage- of a minor (Jl:lp) in medieval times would form an interest­ ing chapter in medieval J ewish I.aw, see Eben ha-Ezer I.2 and 43, and the

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while the marriage of a mioor is illegal, yet cohabitation du'ring such a marriage was not sinful nm nt-t'.:J N.:J'rlln N?i in view of M . Ket. IX.9. Furthermore he held it to be meritorious to give a minor son . in marriage. With regard to the betrothal of a female, the rules are quite different from that of a male. A girl may . be given in betrothal from the day she is born. 92 However she must be three years and a day, if the betrothal is by way of i1N'.:J . 93 A father may give his daughter in betrothal without her consent, as long as she is still a i1i}1J i. e. until she has reached twelve and a half years and a day. 94 However a widow or a divorcee even under the age of 1 2 and a half years and a d;ay, who was previously given i n marriage by her father, may betroth h�se'lf without the consent of her father. 95 Any girl who is twelve years and a half and a day (niJi:i) is no longer in patria potestas and can be betrothed only by her own consent.96 In contrast to Jewish law, where a symbolical act is necessary to make a betrothal valid, among the Romans mere consent is sufficient to constitute betrothal. 97 Hence betrothal can take place in the absence of the parties provided they are - aware of the fact or later ratify it.98 For a valid betrothal requires the consent of the contracting. parties. The father is understood many references given by the commentators ad. Joe. tf. also Responsa of R. Samuel di Medina, Eben ha-Ezer, no. 9, and R .. Joshua Isaac of Slonim, VW1i1' n,m no. 20. 9 2 As may be inferred from M . Kid. 1 1 1 .5 , and noticed by R. Mana, Yer. Kid. L c. However R. Hiyya fel t it necessary to state expricitly that an infant girl of one day may be given in betrothal Yer. Kid . I. c. 9J M. Kid . V.4. According to one view, Rebekah was three years old when she married Isaac, cf. the passages cited by Theodor-Albeck to Gen . R. 5 7 . 1 . 94 This is the view of R . Johanan, Resh Lakish holds that this rule i s a matter of controversy between R. Judah and the majority of the scholars, according to the latter, a iliVl could betroth herself without the consent of her father (Kid . 43b) cf. also Tosafot Kid. 44b, s. v. illt,p. 9s M . Ket. IV.2, cf. also M. Yeh. XI l l . 6. 9 6 Kid. 79a. 9 1 Sufficit nudus consensus ad constituenda Sponsalia D.23 . 1 .4 pr. 98 D.23. 1 .5 . Ori" consent, cf. G. d'Ercole, Il consenso degli sposi e la perpetuita del matrimonio nel diritto romano e ·nei Fadri della Chiesa, in Studia et Docu­ menta Historiae et Juris, V, 1939, pp. 1 8-75 .

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299

to consent unless he makes plain his refusal. 99 A son who is under parental control must agree to the betrothal,1° 0 otherwise it does not take place .IOI A girl who does not refuse is considered to have given her consent, she may withhold her assent if the person selected by her father is unworthy or infa11:1ous (si indignum moribus vel turpem . . . eligat) . 102 As for the age limit, betrothal can be made before puberty and after. 103 According to a later view, betrothal could not take place before the parties reached the age of seven. I 0 4 Some general rules governing the contracting of betrothal may be noted. I f a Tumtum (cryptorchis) betrothed a woman, or was betrothed to her the act was valid.I 05 If he married, his wife may eat Terumah, if he were a priest, although he may not.I 06 A hermaphrodite may marry a woman, but not a man. 99

D. 23.1 . 7 . For the principle that silence implies assent, cf. Savigny,

System des heutigen Romischen Rechtes, 1 1 1 .248-252, G. Donatuti, Il Silenzio come man{festazione di volonta in Studi in onore di P. Bonfante, Milan , 1930, IV.459-484 and C. W. Westrup, Family Property and Patria Potestas, 1936, p. 54 , note 2, and for the Medieval Spanish Law, cf. Las Siete Partidas VII ,

34, 23. ·er. also Ket. 73b, :!Nil pu,rz.,•ru mt> ,v :!Nil il"i'tu mo ,v. 100 D.23. 1 . 1 1 . IOI D.23; 1 . 1 3 . 102 D .23. 1 . 1 2 . In the Christian empire, another motive was added, namely, difference of rel igious belief, C.5. 1 ..5 .3, for the Jewish law, cf. Ket. 40b 'N, 1•nru il::no, ,mo, il, iot> •31:i. 10 3 Sentences of Paulus, 2 . 19 . 1 . 10 4 D .23. 1 . 1 4. That this passage is interpolated was pointed out already by Glilck, A usfuhrliche Erlauterung der Pandecten , vol . 2 2 , ( 1 820) , p. 4 1 1 , note 84, cf. also Volterra B . I. D . R. , 40, p . JOO, note 3 . For the in fluence of Greek notions on this rule, cf. Pernice, Labeo, I, p. 2 14, note 3 2 , for the .num ­ ber seven in Roman Law, cf. H . Bodemeyer, Die Zahlen des romischen Rechts , Goettingen, 1 855 , p . 76, et. seq . 10s T . Yeb . 1 1 . 1 , Babli 72a. The amoraim I . c. explain that the betrothal has legal signi ficance to the extent that it requires a Get Nit>in, iON, io•N ll'iON •o N,ipl;, . On the cryptorchis, cf. Preuss, Biblisch-talmudische Medizin , p. 263. My friend Dr. Menny Rapp refers me to Oscar Hertwig, Entwick­ lungsgeschichte des Menschen und der Wirbeltiere, 9th ed. , Jena, 19 10, p. 533 and Gray's A natomy, 24th ed . , Philadelphia, 1 943, p. 1 235, where the medical aspects of this lusus naturae are described . 106 T. Yeb. 1 0. 2 . , Babli 72a, Abaye I . c . explains that the marriage of a Tumtum is valid if he exhibits definite male characteristics nii:>'l 1'"'::itu:, yin:::iz,.

3 00

J EWISH AND ROMAN LAW

According to R. Jose and R. Simon if a hermaphrodite, who was a priest, married the daughter of an Israelite, she may eat Terumah. 107 A man may betroth a woman on the day of death of his parents, but may not marry her - until thirty days of mourning have passed. ioS However, if the father of the groom or the mother of the bride died �fter the wedding banquet had been prepared, the nuptials need not be postponed. 10 9 A man may betroth, but not marry , a woman on Tisha be'ab u0 and on Ho! ha-Moed . m According t o an early halakah, a woman who had been mar­ ried could not remarry, unless a period of three months has elapsed , 1 1 2 in order to prevent the question of doubtful paternity from arising. 11 3 This rule did not apply to betrothal, where no such apprehension might exist. Consequently a woman who had been married might become betrothed, and a woman who 1 M. Yeh. VI I I. 6 . In a baraita Yeb . 53a a different view is ascri bed to R. Jose accord ing to wh ich it is impossible to determine the sex 01l'l1 1"'!lN il:::li'l CN i.:,r CN c•r::,:, n 1:::i 1v• i.:,i1 N?1 Nlil i!Z:,�V 'l!l:::l il'1:::l , cf. also Al phonse Devergie (Medicine Legale, Theori,que et Pratique, 3rd ed . , Paris , 1852 , I, 85-96) who remarks that in most cases the male or the female characteristics predominate , b u t there are cases o n record where it i s impossible t o determine the sex, cf. also L. B . Arey, Developmental A natomy, Philadelphia 1946, 5th ed . pp. 304-306. For the hermaphrod i te in Roman Law, cf. Voigt, Die XII Tafeln, Leipzig, 1883 , 1.253, note 24 and Boaz Cohen , Some Remarks on the Law of Persons in Jewish and Roman Jurisprudence, p . 9, note 2 5 , reprinted from Proceedings , vol . XVI. For the la.ter view concerning the val id ity of the marriage of a hermaphrodite, cf. Tur, Eben ha-Ezer 44. 108 M. K. 23a, Maimonides, Ebel VI.S, Yoreh Deah 392 . The Roman law was even more lenient, cf. D . 3 . 2 . 1 1 pr. Liberorum autem et parent-ium luctus impedimento, nuptiis non est, according to R. Jose a widow may not become b etrothed during the thirty days of mourning, cf. Yeh . 43b, T. Yeh . 6.6. For the importance _of the period of th irty days in Religion and Law, cf. Homeyer, Der Dreissigste, in A bhandfong der Berliner A kademie der Wissenschaften , 1864, pp. 87 ff., and R. Diil l , Triginta Dies in Festschrift Koschaker, I., 1939 , pp. 2 7-4 1 , cf. Grosso , Studia et Documenta Historiae et Juris, VI I I , 1 942, p. 1 72 . 109 Ket. 3a. no Yer. Ket. 1 . 1 . In Yeb . 43a it is said that a betrothal may take place during the week in wh ich Tisha be A b occurs. m M. K . 1 8b. m M . Yeb . IV. 9 where this view is transmitted by R. Judah . 113 Yeb . 42a. For the legal complications that fol lowed the fai l ure to ob ­ serve th is rule, cf. M . Yeb . X I .6 . 10

BETROTHAL IN JEWISH AND ROMAN LAW

30 1

had been betrothed , and was widowed or divorced , might marry without waiting the statutory period . In consequence of the fact that the plain reasoning underlying this law was liable to be misunderstood by the plain people, the rabbis decided to amend the rule. According to the later view accepted at the Academy of Yabneh ,n 4 a waiting period of three months was required in every case where a woman remarries, even if during her marriage she could not have become pregnant because her husband was in prison , or she was barren or sterile, or even if she were only betrothed, and wishes to become betrothed again.ns As for the rules governing the contracting of Sponsalia, the following may be mentioned . A general principle was laid down that one may not betroth a woman whom it was forbidden to marry. n1> A :. man who violated this law was visited with the stigma of infamy.m A guardian may not betroth his ward , nor give her in betrothal to his son.us A Senator was not permitted knowingly with malicious intent (sciens dolo malo) to betroth a freedwoman or a woman whose parents were actors.n9 Some exceptions to the general rules are the following. An officer in the province may betroth a woman , but may not marry her while holding office. 120 If a widow becomes affianced during the period she is mourning for her husband she committed no wrong.m Quae virum eluget intra id tenipus sponsam fuisse non nocet. 1 2 2 Yet she may not marry until the period of mourning n4 Cf. T. Yeh. VI.6 and Babli 42b. ns M. Yeh. IV.9 transmitted as the anonymous view, but seems to coincide with the opinion of R. Meir in T. Yeh. VI.6, and Babli 42b. n6 D.23.2.60.5. 11, D.3.2 .13.4. us D.23 . 1 . 15. Cf. also D.23.2.66. n , D.23. 2 .44 pr. Cf. also D.23 . 1 . 16. 120 D.23.2.38. m D.3.2.10. 1 . R. Judah holds that a woman who had been married, need not wait the period of three months if she wishes to become betrothed nitrn:m, ioitw. R. Jose accepts this opinion with the exception of the widow, who may not become betrothed because of mourning ?1:l'Ni1 'J!>O, M. Yeh. IV. 10, cf. Rasi, Scritti Ferrini, I. Milan, 1947, 393 ff. m The phrase non nocet reminds one of i•o!>i1 N? M . Ber. I.2.

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has passed , for this is customary in order to prevent the question of doubtful paternity12J (turbatio sanguinis) . Augustus/ 24 finding that the spirit of the law (vim legis) was being evaded by betrothal with immature girls, - shortened the duration of betrothals. In a passage attributed to Gaius/ 2 5 it is stated that betrothals may be protracted for j ust and neces­ sary causes from one to four years and even · longer, because of illness of either party, the death of their parents, the accusation of capital crimes, or for long journeys. According · to a law of Valerian 126 in 260 C. E. , a woman . who waited three years in vain for her fiance to marry her, may contract nuptials with some one else . Diocletian 12 7 in a decree issued in 293 C. E. per­ mitted a betrothed woman to repudiate her contract (renuntiari condicioni) and marry some one . else. Constantine128 decreed that if a man fails to wed within two years the girl he promised to marry (suis nuptiis pactus est) , then his fiancee .may contract matrimony with another with impunity, after the lapse of the two years. An interesting problem that vexed the Roman j urists as well as the Babylonian amoraim is the following : What is the status of a couple :who were married without having been previously betrothed. Thus Julianus was asked whether a marriage con­ tracted (nuptiae collatae) before the twelfth year, takes the place of betrothal. Labeo held that if no Sponsalia preceded the deductio in domum, the mere bringing of the woman to the husband 's home could not alter the fact of the absence of betrothals. 1 29 D. 3 .2 . 1 1 . 1 . For turbatio sanguinis, cf. Greenidge, Infamia, pp. 204-205 , cf. also Capitol inus, Marcus Aurelius XX, non decurso luctus tempore, for the Islamic Law, cf. Cook, The Laws of Moses and the Code of Hammurabi, 1903 , p. 168, note 2 , and the statement of Samuel 'ltll ,tu w,1, 1ituNi ,v,1 r:::i rn:::in,, Yeb . 42a. 124 Suetonius, Augustus, 34. 1 2 , cf. Volterra, Ricerche, pp. 96 ff. 1 2s D .23. 1 . 1 7, Volterra (Ricerche, pp. 1 0 1 ff.' has shown that the entire passage is due to a late compiler. 12 6 C.5 . 1 7 . 2 . 12 1 C.5. 1 . 1 . Cf. Taubenschlag, Das Romische Privatrecht zur Zeit Diokletians, Cracow, 1923, p . 234, note 2 . i2s C.5 . 1 . 2 . n9 D.23 . 1 .9. For the Greek law, cf. Beauchet, I . c . I . 1 2 1 note 4. 123

,rv

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This same problem i s discussed b y J ulianus i n connection with - the validity of gifts · between husband and wife. This question is formulated slightly differently. 1 30 If a minor less than twelve years of age has been brought to the home of her so called h usband while she is still of a tender age (si in donium [quasi ] 1 3 1 mariti inmatura sit deducta) and the husband claims , she is only his betrothed , the reply given by Labeo is the same as in the previous case.· ·In the Talmud we find the mention of a very similar case where a couple were married after by-passing the ceremony of betrothal. Thus R. Huna1 J 2- formulated th e principle of i'IJ1p m;,,n i. e. , if a father gave his daughter in mar­ riage preceded by no formality of betrothal ,1 33 the marriage is valid. However this view of R. Huna is generally rejected by the rabbis of the Talmud ; and the later legal writers. In a single instance, the principle was accepted by Rab 1 3 4 who main - · tained -r n,10,e,I;, m,,n rt) ' i. e. i f a high priest married ?- widow, the daughter of a priest, without the formality of betrothal , the nuptials are valid to the extent that the wife becomes disqualified to eat Terumah in her father's house. Similarly Ulpian 1 35 records a view which s�emingly is at variance with the opinion of Labeo. Thus if a girl less than twelve years of age were brought into the house of her husband (in domum deducta) commits adultery and then remains with him after she reached her majority, she cannot be accused of adultery, but she can be accused of being, so to say, betrothed . (quasi

sponsa poterit accusari) .

With regard to conditions, the general rule was laid down to the effect, that if a woman was betrothed on a certain condition , the act was valid provided that the condition was fulfilled . 1 J 6 However, if an element of fraud entered i,n to the formalities of betrothal , the act was illegal . For example if a man betrothed x3 o D.24.1.32.27. '3' Cf. Volterra, Ricerche, p. 1 57. 132 Kid. Sa. i33 Cf. Rashi' to Kid . 3a 1•11n;p c 111,, ;unn, i1':lN i1? i1iOO ON!ll. •34 Yeh. 58a, cf. Tosafot I . c . , s. v. :li. l3S D.48.5. 14.8. •3 6 M . Kid . I I .S, I I I . 2-3, 6, T. Kid . I I l.25.

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a wor,nan with the explicit understanding that he was a towns­ man , and he turned out to be a city dweller, the betrothal had no validity. m Nevertheless, betrothal by mistake was recog­ nized as valid , where a man betrothed a woman under the mistaken impression that she was opulent, and it happened that she was a pauper, the betrothal is legal , for the woman committed no fraud . 1J 8 Sometimes the i nfluence of the statutes of other peoples permeated into Jewish law indirectly. A certain change was introduced into Jewish law as a result of a precedent in foreign law, but the modification was in keeping with the spirit and letter of J ewish law. Let us cite as an example the introduction of the conditional clause in the Ketubah by ,the Alexandrinian Jews. This legal enactment has been discussed often in recent times without attaining an .understanding of its true i mport.1 39 It is true that during the early Tannaitk period it was habi­ tual to have the Ketubah written at the time . of betrothal even though some of the clauses did not go into effect until the time of marriage. 14° But it is obvious also that the Alexandrian Jews did not act in contravention of Scripture otherwise Hillel would not have considered legal the marriage of the man who eloped with the girl who had been previously engaged. The Alex-· andrian Jews realized that Jewish betrothal could not be re­ nounced by either or both parties with comparative impunity as in tpe case of Roman Sponsalia, with which they were un­ doubtedly familiar. 1 41 Hence they resorted to a plan which 1

37 M. Kid . I I .2 , T. Kid . 1 1 .2 . For the Roman concept of fraud, cf. the definition of Servius : Dolum malum Servius quidem ita definiit machinationem quandam alterius decipiendi causa, cum aliud simulatiir et aliud agitur. On the general problem cf. Brejon , Fraus Legis, Rennes 1941 ·a nd S. Solazzi, La Revoca degli atti fraudolenti nel diritto romano, 3rd ed . Naples 1 945 . 13s M . Kid . 1 1 1 .5 , T. 1 1 .5 . 1 39 The best discussion is in Gulak, Urkundenwesen im Talmud, 1935 , pp. 37 ff. 1 4° Cf. Buchler, Lewy Festschrijt, pp. 123 ff. I n Roman Egypt , a dowry was stipulated simultaneously with the Sponsalia, or the celebration of the nup­ tials, cf. Tau benschlag , The Law of Greco-Roman Egypt, p . 95 , note 94. For the Attic law, cf. Erdmann , Die Ehe im alten Griechenland, p. 3 1 5 . · '4' During this period , there probably was only a stipulation of a penalty

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allowed them to retain the formalities of betrothal without suffering its j uridical consequences. They inserted an escape clause into the Ket-ubah which read , "When you come into my house 'n':::l? 'OJ:inw:,I;, you shall be my wife . " 1 4 2 I n Roman and Greek law the "deductio in domum" or "l:.cro.-yEtV '-y vvaiKd." was the term used to denote the beginning of marriage although it was not always a necessary condition of marriage. 1 43 This conditional clause was strictly in consonance with Jewish Law. For we read in M . Kiddushin I I I . 1 " If one said to a woman , 'Be thou betrothed (nrn,po) to me after the lapse of thirty days,' and another came and betrothed her during the thirty days, she is betrothed to the second . " The issue between Hillel and the sages, who were inclined to declare the !econd marriage invalid , was waged over the question of the importance of formalism , namely, the doctrine of strict adherence to pre­ scribed forms in the matter of documents and conveyances·. The sages were disposed to maintain that the second betrothal w�s invalid , because they regarded the conditional clause in the Ketubah as an unauthorized departure from the typical and stereotyped form of marriage contract. J ust as R. M eir con­ sidered a Jewish divorce illegal even when the reference to the civil era m:,,o c,,w was omitted on the ground - that any devia­ tion from the prescribed formula of the Get deprived it of legal force. 1 44 ,roo ,,,,i1 l ' �'l:::l CJ'o:,n ,v:i�w 9:::i�oo mwoi1 ':,:,. Hillel , however, recognized the validity of a document even if it were drawn up in the flexible language of the layman , in in case of breach of promise, and this could be recovered . Later on, even the exaction of the penal ty was considered contra bonos mores and cou ld not be enforced . D .45 . 1 . 1 34. 142 T osef. Ket. IV.9 , Yer. Ket. 4.8, (28d ) , Yeh. 1 5 . 3 , ( 1 4d) ; in Baba lVIetsia 104a, the variant, "\Vhen you come into the H u ppah " is a later reading. The phrase inl'N? '' nN '1i1 is one of the legi timate forms of declarat ion used at the betrothal , Kid . 9a , Tosefta 1 . 1 , cf. also Halevy C'l11ll�1ii m,,,, I, 3, p. 1 03 . 1 4 3 Cf. :M adeleine Rage-Brocard , La Deductio in domum Maritt:, Paris, 1933, B uckland , Textbook of Roman Law, Cambridge 1932 , , p . 1 1 2 , note i , Wol ff , Written and l:nwritten 11forriages, p . 4 i , note 267. E . Levy, Der Hergang der riimischen Ehescheidung, \Veimar, 1925, pp. 68-i 2 and Erdmann, I . c. , pp. 250 ff. 1 4 4 Gittin 80a.

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.disregard of the r,igid conformity required by law}45 (1irv', w,,, �,,,n) . In the Hght of · this explanation , it cannot be said that the Alexandrian Jews were acting contrary to _Scripture nor int�nding to j ustify unfaithfulness after t�e betrothal. The idea of introducing a conditional clause in the Ketubah (Jewish marriage contract) might have come to the Alexandrian Jews from the Egyptians,146 for we have a Greek text which reads " I · have made a contract with the daug4ter of Hesperos ; I will take her home in the month of Mesore. " 1 47 · Already in Biblical times . it was customary for the bride­ groom to bestow gifts upon his bride before the marriage. 1 48 In the Tannaitic epoch the practice well nigh assumed the pro­ portions of an inescapable obligation. (m�o) . 149 Among the masses of the people, the duty to send . betrothal gifts (nm,�o) i4s_ For r,,,.,;i 11w', w,,.,, cf. Sachs, Beitri.ige zur Sprach-und A lte;thumsfor­ schung, Berl in , 1854, I I , 87-89 . I n ear.ly Roman Law, too, formal ism playecl a signal role. Gaius (Institutes IV. 1 1 ) relates· that a man who sued de Vitrbus succis·is when his grapevine had been cut down, was advised t ha t he 1-i ,td to lose_ his case because he should _ have pleaded de a.rboribus succisis· i n harmon y with the general wording of the Twelve Tab les. Cf. A. Fl iniaux , L'action de arboribus succisis in Studi in onore di Bonfante I . Milan 1930, 5 23-547 . For formal ism in Roman Law, cf. especially lhering, Geist des romischen Rechts , I I , 3rd ed . , Leipzig, 1 874 , pp . 470-6 7·6 , Jolowicz , Historical Introditction to the Study of Roman Law, 1939, pp. 42 1 ff., Schulz , History of Roman Legal Science, 24 ff., 75 ff., 13 2 ff . , 293 ff. ; and Lobinger, The Evolution of Roman Law, 1923, p. 1 3 . For the absence of formalism in Islamic Law, c_f. Felix Arin , Recherches R£stor1·ques sur les Operations Usuaires et A leatoires en droit Musulman , Paris,

1909, pp. 1-4 . 1 4 6 Cf. Heinemann, Philons Griechische und Judische Bildung, Breslau , 1932, p . 301 . 1 47 uv"'("'(E"'fpaµµa1. -rfj 1. 'Eu1rEpov 0v"'(a-rpl, µfJ\Xw �E lcro."'(ELV lv -r� MEuop,} µ11vl. , cf. also the discussi9n of this passage in Hans Wolff, Written and Un ­ written Marriages in Hellenistic and Post-classical Roman Law, Haverford , 1 939, pp. 73 ff. 1 48 Cf. Gen . 24.53 and 34. 1 2 , see also Koschaker, Z. S. S. , 33, p. 390, note 2, Neufeld, Ancient Hebrew Marriage Laws, pp. 1 1 3-1 1 7 , Neubauer, Beitri.ige zur Geschichte der biblisch-talmudischen Eheschliessungsrechts, pp. 73-75, and Freund , Zur Geschichte des Eheguterrechtes bei den Semiten , pp. 32-36. 1 49 This is the view of R . Jose, whose opinion prevailed i n Jewish society at the time. R. Judah , who held that it was optional (rnwi) , most likely repre­ sents an older view that was no longer popu lar, cf. Pes. 49a .

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was deemed such a social necessity,1 50 that a law was framed concerning one, who was evidently so hard put, . that he robbed in order to .send gifts to his bride. 1 51 This was, of course, an exceptional case. However, there were two . matters with which Tann aitic legislation on betrothal gifts were · concerned . First, in . view of the fact that the gift at betrothal (l'w,,p iio:, ) could be a mere trifling sum , even a Perutah , considerable sentiment · developed among the people that the giving of betrothal gifts was more than a graceful social practice, but that it possessed legal sig­ nificance.1s2 · In order to disabuse the untutored folk of this notion , the rabbis made it clear that a defective betrothal could not · be cured by the subsequent sending of betrothal gifts.ISJ Secondly, life being what it is, some times betrothal was not followed by matrimony either because of the will of one of the parties, or on account of situations beyond human control . Consequently it was necessary to determine the law concerning the return of these gifts. Without developing a general principle, the Tannaim ruled that in the following four instances the gifts could not be reclaimed by the bridegroom ( 1 ) If the bride­ groom had been entertained at a betrothal . banquet (1nn n113,70) at his prospective father in-law's home, even if he only consumed a denar's worth of food , although his gifts amounted to 10 ,000 denars ; 1 54 the same rule applied if he ate at a banquet such as s R. Gershon (B. B. 146a , s. v. nm, ::io) explains it to mean gifts sent by the bridegroom to the bride the day after the betrothal , and R. Samuel b . Meir repeats the same explanation. The expression nm,::io 1nn;, n,,rv 1•ro1,p ?IV n,nZ)', sounds like a translation of .Morgengabe, for the latter cf. Grimm , Deutsche Recktsalterthumer, 4th ed . , I, 1 899, pp. 6 1 0-6 1 2 , and Koschaker, Rechtsver­ gleichende Studien zur Gesetzgebung Hammurapis, p. 1 72 , note 1 . Cf. also D. 1 6.3.25 which speaks of the father receiving gifts in behalf of his daughter on the day of betrothal or there after (Die sponsalionum aut postea) . 1 1 s .Cf. Tosefta B . K. X.20, p . 368. 15 2 Mitteis called attention to the fact that betrothal gifts among the Greeks were a metamorphosis of the ancient bride price, cf. Reichsreckt und Vnlk.�­ reckt, p. 273. 153 Cf. M . Kiddush in 1 1 . 1 0 and Tosefta IV.4. 1 s4 M. Bapa Batra IX.5. 1 0

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at a 1:m 311:::i?D at his prospective father-in-law's home.m (2) • I f the betrothal gifts were few to b e used while the bride was still in her father's home,1 5b (3) If the btide died before the nuptials could be celebrated, and the gifts were of such nature that she would ordinarily have used them up during her lifetime, the · gifts need not be returned by her father. 1 57 (4) Gifts that are perishable such as comestibles. 1 s 8 In Babylonia, during the fourth century, Rabbah and R . Joseph issued a decree that betrothal gifts known as ,,;no were returnable if the nuptials did not take place. · The 'iilio differed from the nml;,::ic:, in that the former constituted money given in advance to the fiance, during the period of betrothal , which was subsequently entered into the Ketubah . . It approximated the donatio propter nuptias of Justinian. R. Papa made it more explicit by asserting that the ruling extended to the cases where either of . the parties died, or even if the bridegroom refused to venture upon matrimony. 1 s9 T . B . B . X. 1 0 c•inN c•i::i, 11-1 C'l:l •vi::iru crv ?:;,Ni 1•1.m n•::i, nm,::io n,iru;i . ,For this passage, cf. Pardo ad . Joe. who explains c•inN c•i::i, as at another banquet, the phrase is awkward_ . . For 1::i;i vi::iru, cf. M. G. W. J. , 76, ( 1932 ) . 465 ff. , 575 ff. , where the matter is fully discussed. '56 M . B. B . IX.5 and Tosefta B . B . X. 10. In the latter the reading is i1 , I;) n n • ::i ::i 1;i::i· rul;)n1Ui1? 1:i,,rv c•i::i,. The spaced words should be changed lo read i1':lN n•::i::i as Pardo ad. loc. suggested , the phrase n,•::i i•rnn, means, to return personally. x51 T. B . B . X.·1 0 i1"n::i Ji1:l 1Vl;)n11m ', 1:i,,ru c•i::i, i . e. things which ordinarily wear out by continual use such as garments, Pardo quotes the Tur, IUl;)!Vn!V , ,::i•ru iv Ji'l:l. 1 58 B . B. 146a R. Aha Sar ha-Birah , raised the question concerning the return of the betrothal gifts at the synod at Usha and the scholars decided 1':lll l'N n,',::i•, n,•iwv;, nm,::io, cf. also Jacob, Zeitschrift fur vergleichende Rechts­ wissenschaft, 4 1 , pp. 332-3 , and D river and Miles, Assyrian Laws, p. 186. For the name il1':li1 ,w, cf. Bacher, Die A gada der Paliistinensischen A moriier, I , 1 892, p. 58, note 3, Klein ,1-1,iv• y,1-1 ni•pn, C'l11V c•,1;)11tl;), 1924, pp. 75-76. 1 5 9 B. B. l45a, with regard to the meaning of •imc there are two views. First, that it is identical with nm,::io. This is the opinion of R. Gershom , Nahmanides to Gen. 34 : 1 2 , and Ex. 22 : 15 and Joseph ibn Habib to Alfasi on B. B. 145a. According to Nahmanides, Ex. 2 2 . 1 5 ;,;,,I;) is derived from i;,I;) to hasten, because he hastens to give her the gifts. However, Samuel b . Meir, after rejecting the above explanation, suggests that •i;nc refers to the money given in advance to the betrothed woman durin2 the period of beISS

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Rabin the elder in the presence of R. Papa laid down a new rule concerning betrothal gifts • (nm � :io ) . 160 All ·betrothal gifts with the exception of food and beverages are to be returned if either of the parties died, or the bridegroom changed his mind. If the bride refused to be married, then she must -return even a bundle of vegetables she received as a gift. Rabin's new view has thus superseded the earlier Tannaitic opinion, 161 which was based · on the assumption that certain types of .gifts were a pure donatio ante nuptias made out of mere generosity to the bride liberalitatis gratia, 1 62 as the Romans would say. Rabin's interpretation reflected a novel attitude. All betrothal gifts were deemed to be made in anticipation of marriage163 and be­ came void if the nuptials were not celebrated even if no conditrolhal , which was subsequently entered into the Ketubah , Nli1 ,mo, ,,.,,i, tv'l imTJ •ipo •::,;,',1 ,i, Ntvmrv::, il::1111::,::i :in,:, Ni1'tu 1•01,•N •o•::i ilnl,I ;,', o•iporu po 0, accord � ingly, this would be the 200 Zuz pledged to a virgin as 7•n'?1n::i i;,,,., recorded already in a Geonic Ketubah (cf. Gulak, mit:ltvi1 ,�1N, p. 30) . The earliest reference to Mohar in the Ketubah is found in the Assuan Papyri, cf. Cowley. A ramaic Papyri, p. 44, line 4. For the distinction between Mohar and Siblone, cf. also Volterra, Studio, I I I , p. 53, 5 7 . lsserles (Eben ha-Ezer) 9 1 . S says it was not customary to enter into a writ the amount given as nm,::io. Justinian (C.5.3.20 pr. ) explains that donations which were previously called ante­ nuptial gifts, but were not recorded in order to render them ineffective, he ordered the name to be changed to donatio propter nuptias, cf. C. Th. 1 1 1 . 5 . 1 .

Nos etiam inter sponsos quoque a c sponsas omnesque personas eam solam dona­ tion em ex promulgatae legis tempore valere sancimus, quam testificatio actorum secuta est. Gifts between betrothed persons as well as other persons were valid

only if attested by entry in the public records. 160 B. B. 146b. · 1 6 1 This is the view of Maimonides mno, i1"::>l VI. 2 1 which was adopte d by Karo in Eben ha-Ezer 50. 3 . Maimonides was fol lowing the expfanation of Joseph. ibn Migash , 1•n•mo', •rvru,', N::io )':ii, 1::101;, •,:ii:, Pro1,n::1 :Jn::> J'1i1 Oll ::,•::,1 NllN J'n'JnlJ', •nio', J'::111 W1'DIV IVNl'� J"'1i1 •i::ii.:, N'?tv illl • . . 'll? D', N'? l NllN 0::101;, (quoted by the Beth Joseph to Tur. Eben ha�Ezer SO) . 162 C f. D.39.5. 1 . 1 . Maim0nides puts it this way �',N ;,n',rv N?W 3111• ,::i,;,rv ,::1,::1 'll 7 ,, (Hilkot illlllJl i1"::>l Vl.22) . It is interesting to note that Constan­ tine, displeased with the earlier law which decreeJ that a gift to a betrothed woman, is valid even though · the marriage was not celebrated , subjected this practice to new regulations. Theodosian Code I I l .5 . 2 = Code of Justinian

v.�.1s. 16l

As R. Solomon hen Adret observed . . . n'?1rv Nli1 p�il;, n', 1n•, n v , '?v N'? n'?rv ;,oJ::,', nv, ',3,1 quoted by Beth Joseph to Tur I. c., SO.

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tions were attached to the gifts. 164 Perhaps a lowering of the economic conditions of the period contributed to the new juridical interpretation. Among the Romans in classical and post-classical times, it was customary for the betrothed woman 10 5 to receive gifts from the sponsus. The jurisconsults were also required to cope with cases concerning the disposal of betrothal gifts in the event that the nuptials were not celebrated. However · the Roman legisla­ tors were compelled to deal with situations unknown to the rabbis, in consequence of a Roman rule prohibiting gifts between man and wife,1 66 While persons engaged to be married were not subject to this restriction, 167 the jurists found it necessary to lay down certain rulings on the subject, which in · turn produced new and vexing complications. Thus from Modestinus168 we learn that a donation was valid even if it were made � n the day of marriage. Now such a ruling 164

According to R. Samuel ·b. Meir's interpretation al l the gifts were re-. turned only if the bridegroom made stipulations at the time ?V tv1'.!l Ott ?::lt-t J'"ll1t> np,\,::io t-tlt/1 N?1 1•::i1,o nm,::io t-tJro N? ,,,;, ,, 11rn•tv m1', cf. Baba Batra 146b, s. v. nui,::io Similarly Julian observes si hac mente donat sponsus spons�e, ut nuptiis non secutis auferatur, posse repeti, . . . inter eas personas fieri donationem eam, quae sub condicione solvatur. ( D.39.5 . 1. 1 ) . 16s I t was also customary for t h e bride t o send gifts, c f . D.24. 1 . 6 6 p r . b u t it was rare, quod raro accidit, c f . Cuq , Manuel des Institutions Juridiques de Romains, 1 9 1 7 , p. 19 1 , note 6. 1 66 Digest (24. 1 ) entitled De donationibus inter virum et uxorem, is completely devoted to this subject. For the probable existence of the same proh ibition in Greek Law, cf. Beauchet, Histoire du Droit prive de la Republique A tkenienne I I I , 138-139. Of the more recent l ite.rature dealing with th is law, cf. F . Dumont, Les Donations entre Epoux en Droit Romain, Paris, 1928, cf. Kaden , Z. S. S. , 50, 1 930, 61 1-619 and Thayer,· On Gifts Between Man and Wife, Cambridge, 1 929. (Cf. E. Levy, Z. S. S. , 52 :533-535) and L. Aru , Le Dona­ zioni fra Coniugi in Diritto Romano, Padua, 1938. Cf. also Arangio-Ruiz , in Doxa, 1 . 1948, p . 200 and H. Kreller, Romische Rechtsgeschichte, Tiibingen 1948, p. 59. In Jewish Law in spite of the Amoraic principle i11l1N ilmpr., ;io i1?ll.J mp a man could make an absolute gift to his wife , cf. Tosafot Kiddushin 24a, .s. v. •:ii, which . reads ?:>1N ?V::lil l'N1 '10l? ;,nlp lnlON? mno ? l/:li1 Jnl CN mi•!> . 16 1 Fr. Vat. 302, cf. Volterra, Ricerche, 90-94, and Petropoulos, 'Iuropla Ka.l ElG''1'1'YnUELS TOU 'Pwµa.LKOU OLKa.lou, Athens, 1 844 , p. 1 1 08, note 50. 16s D.24. 1 . 2 7 , cf. Dumont, p. 24.

BETROTHAL IN JEWISH AND ROMAN LAW

31 1

called for a legal definition of marriage. Paulus169 felt that a question of the validity of a gift made- on the wedding day was such a delicate matter, that it ought to be submitted to a tribunal for a decision. Cervidius Scaevola, 1 1° the teacher of Paulus, however, rendered two interesting opinions on this point. In one case1 1 1 he held that a gift was valid if it preceded matrimony, the latter was considered to have occurred when the parties yielded their con­ sent, Itaque nisi ante matrimonium contractum, quod consensu intelligetur, donatio facta esset, non valere. Evidence that the donations . were made before the bride was conducted to her husband's home or before ' the marriage contract was signed 1 72 would not by itself, make it an ante-nuptial gift. For these features in the marriage ceremony often occurred after the marriage became legally binding. 1 13 . . In another case, 1 74 he ruled that a gift on the day of nuptials was valid if it were made before the bride passed into the con­ trol of her husband, 1 7 5 and before she received water and fire .from her husband , · priusquam ad eum transiret et priusquam

aqua et igni acciperetur. 1 1 6

Fi::. Vat. 96, Quoque igitur die nupti,arum munus datum proponitur, facilius in iudicio examinari posse tempus donationibus et matrimonii. 1 7° Cf. Kruger, Gesch,ichte der Quellen und Literatur des romischen Rechts, 16 9

1 9 1 2 , p. 2 1 6, note 28. b 1 D.24 . 1 .66 pr. · Cf. Dumont, Donations, p . 23, Thayer, Gifts, p·. 225. Levy, Romische Ehescheidung, pp. 7 2-73 .. -For the use of valere, cf. the in­ structive essay of Hellman , Zur Terminologie der Recht�qu_ellen in der Lehre von der Unwirksamkeit der juristi�c"/ien Tatsachen in Z. S. S. , 23, ( 1 903) , p. 396 , et. seq. 1 12 Cf. Marquardt, Das _Priva_tleben der Romer, 1879, I , 46 , note 4.

m Non attinuisse tempus, an antequam domum deduceretur, donatio facta esset, aut tabularum consignataru_m ,. quae . plerumque -et post contractum matri­ monium fierent. 1 74_ D.24. 1 .66. 1 . Cf. Di Marzo, . Lezioni sul matrimonio romano , 1919, . p. 84. and Albertario, Studi di Diritio Romano, Milan . 1933, vol. I , p. 233.

1s Cf. M . Ket. IV.5 , l'N,rul', ',31:in imu,', oJ:mru ill ::!Nil mru,::i N'il o,w,. The bride received on the wedding day from her husband, water and fire, the most common necessaries. of life, as a symbol of their union. Hence aqua et igni interdicere alicui means to. banish one, to exclude him from civil society. Consequently, in c.lassical law the person _ aga�nst whom J udgment of aquae et ignis interdictio had been rendered, being civilly dead, ceased to 1

1 76

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The Emperor Aurelius111 in a constitution (anno 2 70-2 74) ordained that the validity of a simplex donatio made on the day of matrimony depended upon the place - it was given. If it were delivered in the bride's house, it is a donatio ante nuptias, if it were given in the husband 's home, then it is revocable, for she was already his wife. Further perplexities were set in motion by a ruling pi:-eserveci by Ulpian. 1 78 If a man made a donation to his betrothed to take effect at the time of marriage, then it is illegal. The principle consideration underlying this law seems to be the following. At the moment . when the gift was to come into the woman's possession, it was no longer allowed for her to receive it as she was a married woman. 1 19 As an apparent - exception ·to this ruling we may cite the fol­ lowing two situations. In one case, a man sent a ring which belonged to another, as a gift .to his betrothed. After the mar­ riage he gave her one of his own instead. Paulus180 following Nerva, decided · that the gift of the second ring was valid , be­ cause it was not a new donation, but a confirmation of the old, quia tune factam donationcm confirmare videtur, non novam in­ choare. The theory seems to be that the husband originally intended to give the bride a ring181 of his own ,' but for some be married · i n the Roman legal sense. For full references on this theme, cf. Marquardt, I. c., p. 54, notes 2-3, Roby, Roman Private Law, I , 1902 , pp. 45-46; and Gluck, Ausfuhrliche Erlauterung der Pandekten, 1820, vol . 2 2 , pp. 403 ff. , and Corbett, Roman Law of Marriage, pp. 73-74, cf. also C.5 . 1 7. 1 , and Gibbon, · The Decline and Fall of the Roman Empire, ch. XX, vol . I , p . 667, Qote 1 16 (The Modern Library Edition), and Josephus, Contra A pionem , I I , 2 1 1 . "We must furnish fire, water, and food to all who ask for them." Prof. Bickerman called my attention to Katzenelenson's article in the Russian 'Jewish Encyclopedia s .. v. Karet, vol: IX. 305, where Michaelis is cited as the author of the view that ni:, was a kind of _aquae et ignis interdictio. m C.5.3.6. 1 8 1 D.24. 1 .32.22. A similar rule was laid down by Emperor Gordian C.5:3.4. 1 79 Cf. also Savigny, System des lfeutigen Romischen Rechts, IV, 70, note 6, Thayer, 1. c. , p. 198_18° D. 24. 1 .36. 1 . Cf. Aru , Donazioni, pp. 83-84. 181 For the Roman custom of giving an engagement ring, Thayer I. c . , p. 205, Volterra, Studio, I , 3 1 ff., Koschaker, Die Eheformen bei den Indoger­ manen, p. 90: ' While among the Romans it was usual to wear the ring on the

BETROTHAL IN J EWISH AND ROMAN LAW

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unexplained reason , gave her the ring of some one else as a sort of pledge. 182 In another ins.tance Paulus gives the following decision. 18J If a man gives his fiancee some property as a gift, but the couple were married before sufficient time elapsed for acquiring _the property ,1 8 4 nevertheless, it was held that the usucapio was not interrupted since the possession was transferred without any defect. 185 A new angle is introduced by the following case re­ corded by Ulpian . 186 A gift was given by the sponsa to a certain Titius for his bride before the marriage. However it was de­ livered to her after the celebration of the matrimony. The question whether the gift was to be treated as a .donatio ante nuptias hinged upon the fact whether the husband or the wife had appointed Tjtius as the agent. 187 (si quidem eum interposuit maritus . . . si vero mulier) . If the woman was the mandatory, then the gift was valid. Finally Ulpian 188 reports two cases of gifts during betrothal fourth finger, Marquardt I. c., p. 40, note 6, among the Jews the custom arose to put the ring on the index finger, cf. Responsa, no. 109 of R. Moses M unz, a German rabbi of the 15th century, cf. also Blau , Festschrift A dolf Schwarz, 1 9 1 7 , p. 203 , et seq . and 0. Zallinger, Die Ringgaben bei der Heirat und das Zusammengeben im mittelalterlich-deutschen Recht, Vienna 1 93 1 , (cf. H. Meyer, Z . S. S. germanistische Abteilung, 5 2 , 1 93 2 , pp. 368-3 7 5 ) . 182 The rabbis would have decided just the opposite, to judge from the remark of R. Nahman. If a man said to a woman , "Be betrothed to me with a Minah , " and he gave her a pledge for it, the engagement is invalid , Kid . 8a. i83 D.24. 1 .24. For interpolations, cf. Dumont, 1. c. , pp. 50-52 , Thayer, 1. c . , p. 1 72 . 184 Et antequam per tempus legitimum dominium fuerit adquisitum, coierint . 18s Ni hilo minus procedere temporis suffragium constat, quia altero modo s-ine vitio tradita est possessio. For the term suffragium, cf. Albertario , B . I. D. R. , 40, (1 932 ) , p . 25 1 . 186 D.24. 1 .5 . Cf. Dumont, l . c. , p . 40, note 1 , Thayer, p . 1 36. 18 7 The principle presupposed here is that the husband appointed the agent only to deliver it, whereas the wife appoints the agent to receive it in her qehalf. There is an exact analogy to this principle in Jewish law in connection with the appointment of an agent to deliver a bill of divorce. The husband may only appoint an ag�nt to del iver the Get, whereas the wife commissions him to accept it in her behalf (Git. Vl . 1 ) . 188 C f. D. 24. 1 . 3 2 . 2 7-28 , the difficulties, contradictions and in terpolations

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followed by an illegal marriage. In the first case a man was betrothed to a woman who was a minor, and afterwards mar­ ried her although it was prohibited for him to do so. In such an instance, he ruled that the validity of the gifts during the so­ called betrothals will depend whether the sponsalia preceded the marriage. In the second case, a senator betrothed a freed­ woman and afterward married her, although he is not permitted to contract marriage with her. In this instance he ruled that the betrothal was illegal , and the gifts were to be confiscated by the treasury, sponsalia inprobanda et quasi ab indignis ea quae dor.,,a,ta

sunt ablata fisco vindicari.

There was an early rule189 that if gifts were made after mar­ riage , which was illegal according to Roman custom, such donation was valid , (sed si aliquod impedimentum interveniat, ne sit omnino matrimonium, donatio valebit. However from a later source 1 90 was interpolated the following reasoning. But it is not right that donations of this kind , should be valid , lest the guilty person benefit from his offence, Sed fas non est eas donationes ratas esse, ne melior sit condicio eorum, qui deliquerunt. This calls to mind the rabbinic maxim already found in the M ishnah 1 9 1 i:,roJ tu�,n Ni1' N',ro ,,:, that the sinner should not profit from his sin. Thus far we have been dealing with legal problems that re­ sulted from the law prohibiting gifts between. man and wife. And now we shall turn for a succinct survey of Roman rulings on the disposal of betrothal gifts where the sponsalia did not lead to marriage. Papinian 192 drew a distinction between a simple betrothal gift , known as simplex donatio and that given directly with matrimonial design. adfinitatis contrahendae gratia. in these two passages have been explored by Volterra, B.I.D . R . , 40 :1 56-1 62, further references are given in Dumont, pp. 30-32, Thayer, pp. 200-1 . 189 Cf. D . 24. 1 . 3 . 1 . Cf. Aru , Donazioni, pp. 45-46 . 1 9° Cf. Vol terra, I . c . p . 160. 191 Hal lah 1 1 . 7, Sifre Num. 1 10, ed . , Horovitz, p. 1 15 , Ket. 1 1 a, 36b, cf. also Spinoza's statement: ut ne malis expediat esse malos, quoted by Leo Polak, · Why Justice requires retribution and forbids Capital Pttniskment, p. 2 . 1 9' Frag. Vat. 262 and D.39.5 . 1 . 1 , for the in terpolations, cf. Perozzi, Istituzioni di Diritto Romano, 2nd ed. , I, 36 1 , note 1 , see also Mitteis, Reichsrecht, p. 287, note 1 .

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In case of the former, if marriage did not �nsue, the gift was considered as an unconditional one, in the second case, it was to be returned to the donor if the nuptials faiied to be celebrated through no fault of his. A similar rule is preserved in a text of P�ulus193 where it is stated that a woman who is betrothed to an �fficer, must return the gifts to him. (arris tantummodo reditis) if sh� refuses to marry him, (nuptias contrahere). In 3 1 9, Constantine 1 94 introduced the rule that betrothal gifts must be restored by the party breaking the engagement. In 336, a law1 95 was framed to the following effect. If one of the parties to the betrothal died , then the sponsa or her heirs might retain half of the gifts, provided she has received the betrothal kiss,1 9 6 otherwise she must return all of the gifts. I n 380 there appeared for the first time the institution known as Arrha Sponsalicia. 1 9 7 Under the new arrangement, the gifts 19

3 D.23.2.38. On this passage, cf. Volterra, Studio, 1 . 69, note 2, and Cor­ bett, The Roman Law of Marriage, p. 18, note 3 . 1 94 C. Th . 1 1 1 . 5 , 2 . For a summary o f the laws of betrothal during the reign of Constantine, cf. al so M. Sargenti, Il Diritto Privato nella Legislazione di Constantino, Milan , 1938, pp. 1 14-126, and Clemence Dupont, Les Consti­ tutions de Cons,antine et le droit prive au debut du [Ve Siecle, Lille 1937, pp. 8 1-94. 19s C. Th. I I I .5, 6, C. V.3 . 1 6. 1 9 6 For the legal significance of the kiss of betrothal which is of christian origin , cf. Tamassia, Osculum interveniens, in Rivista Storica Italiana, I I , 1 885, pp. 241-264, Volterra, SJudio,· I, 73-83, and C. W. Westrup, Recherches sur les Formes A ntiques de Mariage dans L'Ancien Droit Romain, Copenhagen, 1943 , p. 20, note 3 , and N. T. Steinlauf, The Kiss in Roman Law, Classical Journal, 41, 1 945 , p. 24 and 37. The reference to Joseph kissing Asenath three times before betrothal is also of christian origin, cf. Joseph and Asenatlt, trans­ l ated by E . W. B rooks, London, 1 938, ch. XIX, p. 59. This is not mentioned in any Jewish source. Cf. Wilnsche, Der Kuss im Talmud imd Midrash, Lewy­ Festschrijt, pp. 76-109, and Low, M. G. W. J. , 65 :253 et. seq. On osculi jus, the right of kissing between relatives of both sexes, cf. Suetonius, Claudius, 2 6 ; for the Jewish Law, cf. Shah. 13a, Eben ha-Ezer 2 1 .7 . For kissing at the conclusion of marriage in medieval German Law, cf. H. Meyer, Die Ehe­ schUessung im Ruodlieb und das Eheschwert, in Z. S. S. , germanistische Ab­ teilung 52, 1932, p. 288, note 1. 1 97 C. Th . 3 . 5 . 10-11 C.5.1 .3, 5.2. 1 . Thus we read : Arris sponsaliorum nomine datis. If-anything has been given as a pledge for (literally in - the name

3 16

JEWISH AND ROMAN LAW

were given as a pledge 1 98 that the promise to marry1 99 will be ful­ filled.200 It had for its purpose the realization of matrimony, j iist as the arrha201 of commercial contracts envisaged the fulfillment of a sale. 202 Unlike the donatio ante nu_ptias, the j uridical effects of the Arrhq, Sponsalicia lasted until the nuptials, if marriage did not follo\v, the arrha was generally returned . However, the ante-nuptial gifts existed during matrimony, and possessed legal significance until the dissolution of the marriage. Arrha Sponsalicia is of oriental origin as is evident from its presence in the Syrian Roman Law Book , and it is a survival of of) betrothal , cf. Kiddushin - 1 .3 , cohabitation for the purpose of (literally in the name of) betrothal (J'llllip c,111, N'illll i!N':J , :i ) . It is true that in Latin nomine means also on account of, for the sake of, but, cf. in dotem D.23.3.9 pr. for the pur-po�e of dowry. For ar;ris sponsaliorum datis, cf. J'llllip 11"1l in Kid . 6a. 19 8 I t is noteworthy that in medieval Jewish law, a pledge given , not to insure a l oan, but to guaranty fu ture promises , is not considered a pledge Jl:111/D 'lil N? i•mm m nra::iil ?Jl N?N ::i,n ?Jl Jl"ll N?II/ 11:1111c, Piske Tosafot Kiddushin , no. 1 3 . i99 This i s the source for the medieval Spanish Law which provides as one of the five ways of betrothal , the giving of someth ing to a woman, with this declaration , I give you ·this as a pledge and I promise to marry you , sil da algune cosa deciendo asi : yo te do estas arras et prometo que casare contigo. (Las Siete Partidas, IV. 1 .2 ) . Cf. also E. F. Regatil lo, El Derecho Matrimonial en las Partidas y en las Decretales in A cta Congressus Iuridici Internationalis, I I I , Rome, 1936, p. 330, et seq . , and Jose Maldonado y Fernandez del Torco in Anuario de Historia del Derecho Espanol, XV, 1 944 , p. 596, et seq . 20 ° Cf. Volterra, Studio, I I , 2 1-2 2, and Arangio-Ruiz, Istituzioni di Diritto Romano, 194 7 , p. 448 , note 1 . 201 It is interesting to note that arrha is the only word of Sem itic origin which became a Roman legal term , cf. Vol terra , Studio, 1 . 38, Zlotni k , Hatoren X, 1923, p. 4 1 , and Symbolae Van Oven, 1946, p. 30, note 2 . 202 Volterra maintains that A rrha and Arrha Sponsalicia are two d iverse institutions, cf. Studio, 1 .40, I l . 3 , note t but cf. Koschaker, Die Eheformen bei den Indogermanen, p. 39, n ote 4. For arrha contracts , cf. Taubensch lag, The Law of Greco-Roman Egypt, pp. 309--3 1 1 , H . Steiner, Datio in Sol-utttm, Munich , 19 14, p . 1 6, note 2 , Collinet, Etudes historiques sur le droit de Justinien, vol . I , pp. 89 ff., Buckland , Textbook of Roman Law, pp. 48 1-482 . Monier, Manuel Jllementaire de Droit Romain, 4th ed . , 1948, vol . I I , pp. 141-2 . Samuel Daiches is of the opinion that the rule regarding arrha (Inst. of Justinian , I I l .23) can be traced back . to the Talmud, cf. his remarks to Israel H . Daiches , Commentary on Yerushalmi Baba Batra, London , 1 9 2 7 , p p . 98-99 .

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the ancient bride price mentioned in the Code of Hammurabi. 203 In so far as the Arrha Sponsalicia is the transformation of the ancient Semitic bride price, it possesses a common origin with the l'W1ip 90:, (betrothal money) of the Mishnah , which is also a metamorphosis of the Biblical Mohar. However, the conception that a pledge, in the strict sense of the word, could even be given as Kiddushin, was strongly repudiated by the rabbis. Thus R. Nahman remarks :204 If one says to a woman : Be betrothed unto me with a Minah , and he left her a pledge to guaranty the sum, the betrothal is invalid, for he gave her no betrothal money and the pledge is revocable. 205 For in Jewish law the l'W1ip 90:, must be an irrevocable gift. 11:iwo ii? n'Ji11 i'IJ0:1 ,, 'Wipt1i1 ii? 10N JN=> l'N 11:,wo lN:J l'N i'IJO nw,,po i'IJ'N i1'?9 . The phrasing of the law seems to imply that R. Nahman was combating a notion has gained currency among the untutored folk. According to one of the provisions of this complicated new law, 206 a penalty of quadruple restitution (quadrupli p oena) was imposed upon the betrothed woman, if she were of age, and declined to carry out her part of the engagement. In 472 , by a constitution of Leo, 207 the penalty for breach of promise was reduced to double restitu­ tion of the arrha. In medieval times, it became a practice among Jews at the time of the preliminary marriage negotiations (1':11iW) for one or both of the parties to give a p�edge to insure the inviolability of the agreement under penalty of a specific sum 208 11:iwo 1rm CN il:m, ':1 ,i rnN CN 10N'W ,,,� 1'.:)1iWilO ,:i ,i rn' N?W ,n, �:iil? ,,,:in, m y:,n 9u:i 1100 i:i:i , i:i :i . It seems most likely that this cus­ tom became prevalent under the influence of medieval Roman Law. Cf. Koschaker, Z. S. S. , 33, p. 387, note 1 and Eheformen, p. 89, note 4 Kid . '8a-b . 20 s Tosafot ad Joe. s. v. illO remark that if the pledge was given as an u ncon ­ ditional gift, the betrothal wou ld be valid. i1I p::nuo::i '? •rvipn;, i1? ioN 'Nii nru,., po, N�'IU!l ,, i1'il' J1::>IUOi11 . 2 o6 C. Th .3.5. 1 1 ; C . 5 . 2 . 1 . 0 Cf. Biondi , Istituzio ni di Dir·itto Romano , 1946, p . 450, note 5 7 . • 1 C.5 . 1 .5 . 208 Cf. Caro, Eben ha-Ezer 50.7 , the Tur and Beth Joseph, 5 0 en d . For betrothal gifts, cf. Abrahams, Jewish Life in tlte Middle A ges, 1 896, p. 1 7 7 , note 4. 203

20 4

318

JEWISH AND ROMAN LAW

An undated Roman law,209 probably of the fifth or sixth cen­ turies limits the commission payable to a marriage· broker (1rpo-· �EV'flT�s) to five percent of the dowry (1rpoL�) or the nuptial gifts (1rpo-yaµ,ala oCJJpEa) with an absolute maximum · of ten

auri librae.

The preliminary negotiations to betrothal, which were cus­ tomary in Biblical times, 210 assumed a more important character in the Tannaitic era. They were invested with a quasi religious significance. Consequently negotiations leading to betrothal were permitted on the Sabbath according to Beth Hillel over against the objections of Beth Shammai,2 1 1 n,pil'nil ?),1 p�,wo n::iw:i oiN'? . From a legal · standpoint it made a difference in certain cases whether the betrothal was preceded by preliminary talks. The following case was a matter of issue between two Tannaim. 212 If a man was proposing to a woman and subse­ quently betrothed her without making the formal declaration , R. Jose held it sufficient , whereas R. Judah required the declara­ tion to be made if the betrothal was to be valid 037 2i:3 i::i,o il'il 21 4,,, ,o,N ,o,, •, .to,'E, N?1 il'!V'l,p . . . il? 1m, il'w,,p . . . 'POV ',37 iltDNil rv,E,', ,,,� ,on� n,,n, In the Amoraic period we find several important changes with regard to the preliminary arrangements for betrothal. First, they were made obligatory under the penalty ot flagella­ tion21 5 and we have two cases where R. Nahman recognized its legal significance. First where a man in his proposal to woman

·,.

209

C.5.1.6. Ulpian relates that brokers are allowed to demand commissions

Proxenetica iure licito petuntur, (D.40.14 . 1 ) but their profession is deemed a degrading one, quod et sordidum (D.40. 14.3 ) . For the Greek practice, cf. Hermann-Blilmner, Griechische Privataltertumer, 1882, p. 261, note 3. For the

Jewish law on the subject, cf. the referer,.ces given in the gloss by Isserles to Eben ha-Ezer 50. 7 and the commentators ad. loc. 21° Cf. above p. 70. m Cf. T. Shah. 16 :22 (p. 1 36) Babli 12a, and 150a. 212 Kid. 6a, cf. the illuminating discussion of Aryeh Leh Yellin in C'l'll il!l' ad Joe. According to Tosafot Ket. 4a s. v. ,::ii-t when R. Jose said to his sister· in-law (7•mnt-t 'l::l •oli!ll •N�) it was merely the engagement (w.)1,31::i 1•:,1i•t11 i-t,N) . 213 For the term ,:iii.), cf. Jud. 14.7. 21 4 For the phrase ,,, it is sufficient, cf. note 97. 21 s This view of Samuel (Yer. Kid. 1 1 1 . 8, 64b). itp,1, J':i,,w 1-t,:1 wipl.)i1 was actually enforced by Rab, (Kid. 12b) •:i,,w N':l ro•,pl.), 1,31 i'lll.)

:1,.

B ETROTHAL IN J EWISH AND ROMAN LAW

319

informed her that he was going to betroth her with a stolen object, and she subsequently accepted it without demur, he considered the betrothal valid . 2 1 6 Secondly, Samuel decided that a woman under age who became betrothed to a man without the consent of her father, required a Get. R. Nahman accepted this opinion in the case where preliminary negotiations were conducted with the father. 2 1 1 The second important innovation instituted in the Amoraic period was a ruling of Rab. 218 Accordi 1:1g to. him, oral stipulations , involving money matters made by the parents of the parties to the marriage, which were followed by a formal betrothal , were legally binding, ,w7pi ,,oy 7:,, 7:, 7r,:i� ,7:,i 7:, 7J:i� 1riu ilriN i10:) ili'ON:i C!Jj?Jil c,,:i,i1 li1 Ji1. This regulation was the result of the influence of the Roman concept of stipulatio as was correctly pointed out by Gulak. 21 9 When these stipulations or conditions were reduced to writing they were termed Nrip' CE> ,,�tv. 220 In Jewish law, since betrothal partook of the character of an inchoate marriage it is not astonishing that certain rules regu­ lating marriage apply also to betrothal. However, betrothal was primarily a preliminary stage to matrimony, in which ample time was given to the bride to prepare her trousseau and to the bridegroom's folks to make arrangements for the wedding feast. Hence, the law, on the one hand , denied the future consorts the privileges of intimacy and immunities appertaining to wedded life, and on the other hand , protected the personal and property 216

Kid. 13a. Kid . 44b . 218 Kid. 9b, Yer. Ket. V. 1 . For gifts made even before betrothal cf. C.5.28. Si ante matrimonium . . . licet ante sponsalia, fundum donavit. 219 y ,::i ir, U I .361-376 , Das Urkundenwesen im Talmud, pp. 45 ff. Gulak overlooked the fact that stipulatio is used in connection with Sponsalia, cf. e. g. D.23 . 1 .2 C.5.3.3. Aulus Gel lius, Noctes A tticae IV. 1.2. 22° Kid. 9b, Rashi I. c. and Ket. 102a, refers to these documents as C'Nll'1 l iterally conditions. Cf. also Tosafot Kid. 63a, s. v. J U:> , cf. Neubauer, Ehe­ schliessungsrecht, p . 180, note 2. It seems that the term was introduced under the influence of medieval Roman law, which may be traced to the similar term condicio used with respect to betrothal , cf. D.23 . 1 . 18. , D.24.2.2, Con­ dicione tua non utor and C.5 . 1 . 1 . For J ':>1i!V in medieval J ewish law , cf. Eben ha-Ezer 50.4-7, 5 1 , and the commentators ad. Joe. For penalties for breaking a n engagement, cf. Tosafot B. M . 66a s. v. 'Z31'lZ31 . 21 1

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rights of the fiancee. If the latter was under age, her father shared the tutelage with the fiancee. Like nuptials, betrothal could be terminated only by the death of one of the parties, or by a formal divorce. 22 1 The Tan­ naim frequently speak of a woman who was widowed or divorced after being merely betrothed 222 (J'01i'Nil 10 iltvilnl 1N n,oiNm). With regard to the formalities attending the severance of the betrothal of a girl under age, ni:s,l , there is a division of opinion. According to one view, the girl or her father may receive the Get. R. J udah says this right is not joint and several ('ntv l'N nnN:> n,:,,r c,,,) , rather the father alone is empowered to accept the bill of divorce. 223 If a girl under legal age, was given in marriage, after her father's death , by her mother or brothers, she may repudiate the marriage before a Beth Din of three and dispense with a bill of divorce, according to the view of the Beth Hillel. The Beth Sha,mmai limit the exercise of this right only during espousals. 224 A betrothal , that was made contingent upon the fulfillment of a certain condition , becomes null and void with the non-per­ formance of the pact. 2 2s When a betrothal was ended by the death of the husband , or by divorce, the fiancee was · entitled to the full marriage settle221

This is implied throughout Tannaitic literature, cf. e. g. M . Ket. 1 .2 , Git. VI I I .9, Yeh . V I .4. For the application of the Herem of R. Gershom to a betrothed woman, cf. Eben ha-Ezer 1 . 10 and Beer Heteb note 2 1 . For the legal effect of a doub�ful betrothal , cf. e. g. M. Kid . I l l . 1 , 7-1 1 , Yeh. I l .6, Tosefta V. 7, XIV.2 . 222 Cf. e . g. M. Ket. V. 1 . 22 3 C f. M. Git. VI.2. 224 M . Yeh . XI I I . 1 . According to another view, the JUU;) may take place in the presence of two persons, cf. Yeh . 107b. The formula of the repudiation contained th e phrase 'nN1 'ON 'J1Wipw J'Wlip::i 'W!>N 'N. T. Yeb. XI I I . 1 , Babli 107b-108a ; R. Judah b . Bathyra was of the opinion that if an orphan under age, who was given in marriage by her mother and brother, became affianced to another, this second betrothal in itself constitutes the renunciation of her first marriage. 22s M. Kid . I I I .2-3 , 5-6� Tosafot was of the opinion that the betrothal to a sterile woman was deemed a nwr:, •w,,p, cf. Yeh. 2b, s. v·. 1N. The later au­ thorities took a stricter view of the matter , cf. Eben ha-Ezer 44.4 and the commentaries on this passage, cf. also Ket. 72 b.

BETROTHAL IN JEWISH AND ROMAN LAW

32 I

ment, that is, the minimum amount of 200 Zuz if she were a virgin otherwise 1 00 Zuz as provided by statute, plus the addi­ tional sum the bridegroom obligated himself to pay (m!:l o,n il:Jm::> ) . According to R. Eleazar hen Azariah , she could only lay claim to the former. 226 If she were under age, the bride's equity belonged to the father. 2 21 If a betrothed woman · had sexual commerce with some one other than her fiancee, it was deemed adultery, and the penalty was death by stoning. 2 28 A man who had sexual relations with a woman betrothed to his father or to his son, is subject to the same penalties as if she were married to his father or son. 229 I f a man was betrothed to a woman and died without issue, she is subject to the Levirate marriage. 23 0 A woman who was. divorced from her first husband and became betrothed to a second, may not remarry her first mate, according to the view of the majority of the scholars. 2 3 1 Nor may a high priest wed a woman whose previous betrothal was ended by the death of her fiancee. 23 2 All these rulings presuppose that betrothal has the same conse­ quences as nuptials. As the purpose of betrothal was to lead the future consorts into matrimony, the following rule became established. It was customary for the fiance some time after the betrothal , to pro­ pose to the woman that she prepare herself for the wedding, which was to take place within a year. Now, if a year passed by from the day the proposal was made, and the couple was not married , because of the man's reluctance or fault, then the fiancee · was entitled to maintenance from the estate of her betrothed . 23 3 According to the earlier law, the betrothed woman , 22 1 M . Ket. V. 1 . M . Ket-. IV. 2 . 228 Deut. 22.24, Sifre Deut. 242, M . Sanh . V I l .4, 9, T. Sanh . X.8, X l l . 2 . 229 M . Sanh . VI l .4. 23° M . Yeb. 1 1 .6, T. Yeb. 1 . 6 . 3 Yeb. l lb , Sifre Deut. 270. 2 3 2 M . Yeb. Vl .4, cf. also Tosefta VI I I .3. 233 M . Ket. V.2 , T. Ket. V.1. From Tobit 7 :1 2 it appears that the consum­ mation of marriage followed directly u pon the betrothal . In Yer. Ket. 1 . 1 , there is a reference t o marriage a t the time of the betrothal m:i1n::1 i1lll,p. For the medieval Byzantine custom, cf. Assaf 0•1ip ?NH:>lll ,1 o•D1i!l? ?::l1'i1 iDo, 1937, p. 169 et seq . 226

2 1

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from this moment on could even eat . Terumah if her fiance were a priest. 234 However, if a daughter of a priest was betrothed to an Israelite, · she was prohibited forthwith to partake of the h eave offering. 235 If a daughter of a priest was betrothed to a priest, under conditions where such betrothal was sinful accord­ ing to Jewish law, then she may not eat Terumah during the period she was affianced. 236 The following rules will demonstrate to what extent betrothal differs from matrimony. During the espousals sexual intimacy is proscribed. 237 However, a plighted woman who had · been warned by her fiance, about undue familiarity with members of the opposite sex, does not undergo the ordeal of waters, but forfeits her marriage settlement. 23 8 A child born to a betrothed woman was deemed spurious (iroo) or according to another view, of doubtful, legitimacy239 ('pmrv) . During this period of plighted faith, the fiance shared with 2 34

M. Ket. V.2-3, T. Ket. V. 1, T. Yeh. X. 1-2 . For a discussion of some of the ambiguities in these passages, cf. Alheck, in ,,w illl/0 i::,r';, 'llilJ y;n p , New York, 1944, pp. 2 1 ff. 2 3s M. Yeb. VI I.5, T. Yeh. IX.3. 236 M . Yeb. VI.3. This view is disputed by R. Eliezer and R. Simon. Al­ though a widow may not be affianced to a high priest, nor a divorcee to an ordinary priest, yet the betrothal , if it took place is valid, but the woman if she is the daughter of a priest is penalized in that she is not permitted to eat Terumah . This type of rule reminds one of the less than perfect law defined by Ulpian, Minus quam perfecta lex est, quae vetat aliquid fieri, et si factum sit, non rescindit, sed poenam injungit, ei qui contra legem fecit. (Rules of Ul pian 1 . 2 , cf. also below note 242 . 237 Cf. Yer. Pes. X.1, Maimonides, !shut X. 1 , "It is not meet for a man who worshippeth God to sleep with his wife before his marriage" Joseph and Asenath, ch . 2 1 , translation of E. W. Brooks, London, 1 9 1 5 , p. 6 1 . This pro­ hibition was generally observed (cf. M. Eduyot IV. 7 , Git. VI I l .9) except in Judah. (M. Yeh. IV.10, Ket. 1.5, T. Ket. 1.4) . In D.24.1.66 . 1 we read of a case of a virgin who was brought to the country home of her fiance, three days before the nu ptials, and stayed in a separate room from her sponsus, ·cf. also Epstein, Sex Laws and Customs in Judaism, 1948, pp. 126 ff. , cf. Yer. Ket. 1 .5 , n,:iivo i10l:Jl i1"l7lllii1 •:ii ?Ill ,n';,::, and for Matthew 1 . 18, cf. H. Koch , A dhuc Virgo, Mariens Jungfrauschaft und Eke i n der altkirchlichen tlberliejerung bis zum Ende des 4. Jahrhunderts, 1929. See also below note 311 . •3 8 M . Sotah IV. 1 , T. Sotah V. 1 . 2 39 Yeh. 69b.

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his future father-in-law the power to annul the vows of his betrothed , provided she were under age. 24° With respect to the property rights of the betrothed woman , the following rules were laid down. 24 1 Property which she in­ herited before her espousals, she may freely dispose of. If she succeeded to an estate after her betrothal , Beth Hillel concedes her the right to sell the property without let or hindrance, whereas Beth Shammai deemed her act valid , only in the case of a fait accompli. 2 42 I t goes without saying that the fiance does not enj oy tlie right to the fruits of her property during betrothal. 2 43 I f a man deposited money with a third party in behalf of his daughter, with the intention that he buy a field or give it as dowry after his death , the agent (lz.>'�lz.>) is obliged to carry out the instructions of the principal , despite the fact that the daugh­ ter importunes the agent to give the money forthwith to her fiance, because she trusts him. 2 44 If a man 's betrothed dies,24 5 he need not mourn over her, and if he is a priest , he may not defile himself by attending her funeral , nor does he inherit her dowry , 246 but if he passed away 2

4° M. Ned. X. 1 . M . Ket. VI I l . 1 . Tosefta VI I I . 1 and· parallels. 24 2 In Talmudic times we find many laws prohibiting certain acts (;il;,•nr,.:,I;, ) in the beginning i . e. before it is done ; however, if they were done, (i:::ii,•i:::i) they are deemed valid, this cal ls to mind the Ulpian's definition of the im­ perfect law. Imperfecta lex est, quae fieri aliquid vetat nee tamen s i factum est , rescindii, qualis est lex Cincia . A lex perfecta annuls the act, cf. the view of Raba 'li11.) N? i•:::ii, CN i•:::il)n N? Nl1., ni iotti Hl1?'0 I;,.:,, Temurah 4b and Tosafot Ket. 29b, s. v. l',,,,n, for the lex perfecta and imperfecta, cf. Rules of Ulpian, beginning. Kruger, Geschichte der Quellen und Literatur des romischen Rechts, 19 1 2 , pp. 2 1 ff. , Buckland , A Text-B ook of Roman Law, 2nd ed . p. 6, note 5 , 243 Yeb . 3 1 b. 2 4 4 M . Ket. V I . 7 , Tosefta Vl.9 and paral lels. 2 4 s Kid . 53a and parallels. The amoraim held that if a betrothed woman died , her fiance was not obliged to pay her funeral expenses ;i:::1111.:, ;ii;, J'N which Rash i explains ;iz,::1,11.:, nnn ;iii::1p, ;i::1,11.:, )'i. In a baraita, Ket. 47b it is stated that a husband is required tci defray the burial costs of his wife because he receives her dowry ;ir,::1,n.:, nnn i1ni1::1p. Rash i and Tosafot I. c. explain Ketubah as refering to dowry N'liil , cf. a similar provision preserved in Sententia Pa1tli 1 . 2 1 . 1 1 , lifaritus id quad in funus uxort:s impend-it ex dote retinere potest. 2 4 6 According to Samuel , if the father has delivered his daughter into the power of her fiance, or his agents ?l/::li1 mw,::1 N'n •i;i ?l/::li1 •m,w, ::lN i1 ,oo and 24 '

324

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while she was affianced to him , she may recover her jointure (il:nn.:,) and may even sell the property that wc"..s security for he r marriage settlement without the consent of the court. 247 A man may not be a witness in a lawsuit in which his fiancee is involved. 248 Whether he may appear in a case where her relatives are the litigants is a moot point among the early legal writers. 249 Nevertheless he may give evidence in behalf of a woman to whom he is merely engaged (N? :l l' J P irv.v N?N ilrv,p N? iJ ' m:>,o:i irv:,.v l '?'lirv io:> -rrv,,p) unless it is a lawsuit where she is pressing monetary claims. 25° A betrothed person was required to perform non-combatant services for the army although he was released from actual combat duty , 25 1 whereas a newly married man was exempt from all military service in a war of aggrandizement during the first year of his marriage. 252 Analogous in some respects to the betrothed woman (i!OiiN) is the woman awaiting levirate marriage2 53 (o:i' n,o,rv) . The latter may not marry an outsider, unless one of the levirs has submitted to the ceremony of Halitsah. From the wording of Scripture, it appears that the consummation of the levirate marriage required no preliminary formalities. 2 54 The rabbis were quite sensitive on this score, 255 and consequently they found an allusion in Scripture, to the act of iONO which should precede the p,Ctual levirate marriage. Thus one text2 56 reads : N:l' ilO:l' ,out p ,r.v,N ':J i . . . ioNoil m iltoN? ,, ilnp,, ilN':lil m il'?.V iltoN? ,, ;,np,, p ir.v,N ,:i,, o.vti ilO i!O:J':J ,,ol l'Ji' m,p ioNon

,,.v

,,.v

she dies before the Huppah is celebrated, her betrothed inherits her dowry . Ket. 48b. 2 48 Sanh. 28b. 241 M. Ket. XI.2 . 2 9 ◄ Beth Joseph on Tur, Hoshen Mishpat, 33. 3 1 . 2 5° Hagahot Asheri, Sanh. I I l .20. 25 1 M . Sotah VI I . 2 , Tosefta VI l .20, 25. 25 2 M . Sotah VII.3, 7, Tosefta VI I l .7, 19. 2 3 .5 Cf. e. g. Sotah IV. 1 . 2 54 Deut. 2 5 . 5 . 255 According t o a rule established by the rabbis, the performance o f the levirate marriage without the preliminary il.)NI.) entailed the penalty of stripes (Yeh. 52a). 25 6 Yer. Yeh. 1 1 .2 .

BETROTHAL IN JEWISH AND ROMAN LAW

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l'J P ;m p iCNcn 'JN · ,,cl l 'J P m,p nwN ,w,,p no nivtt ,w,,p:, N'il ,,n i10:l':1 i1t.)l . Now what exactly is ictto ? The term naturally means oral declaration or promise. It seems that at first the prescribed form of · declaration at the levirate betrothal read as follows : " I , so and so, promise to provide for the due nurture and sup­ port of so and so, my sister-in-law, but the right to dower shall be assigned to her from the estate of her first husband , " (Tosefta Yebamot, I l . 1) . While the Tosefta prescribes · this form , only when the statement was a written one, there can be little doubt that the formula was recited originally when the declaration was oral, at a later period , the it.)Nt.) for some · reason , lost its distinctive character, and was completely assimilated to the ordinary betrothal from which it became indistinguishable, and consequently the ceremony was identical in both cases. 257 What authority did this new ceremony enjoy ? R. Eleazar b. Arak went the full length and ascribed to it legal effects as far reaching as that of an ordinary betrothal . I t may also be assumed that he considered this ceremony to possess Biblical sanction . Thus if a levir performed the levirate betrothal , and subse­ quently gave her a bill of divorce , then Halitsah could be dis­ pensed with2S 8 ;,�,,n n:,,,� i1'i1n Ni, iONO n,>7:i? Wi'l. According to· R. Johanan ,259 authorities as eminent as R. Gamliel , the Beth Shammai , R. Simon , hen Azzai and R. Nehemiah , were all of the opinion that the levirate betrothal produced legal conse­ querices of a significant character; i10l l'JP m,p iONO . His dis­ ciple R. Eleazar260 observed that the j uridical effect of the levirate betrothal , according to the Beth Shammai, was limited i1J1P i1l'N n,�:i n,n,, N?N.

,:i,:i 2

57 Cf. Yeb. 52b, Yer. 1 1 . 1 , V. 1 , and Tosefta 1 1 . 1 . The phrase ,l:lNl:l il::l iltDV is analogous to sponsionem facere, and the English to make a promise. Cf. Magdelain, Essai sur les origines de la sponsio, 1943 , and Diill, Z. S. S. 64, 430 et seq. 2 5 8 Yer. Yeb. I I I .4. According to R. Eleazar (Yeb. 29a) Beth Shammai did not go this far. 2s9 Yeb. S lb, cf. Rashi ::iirun J'jp N?N tvl:lT.) ,11.)l N? . According to Tosafot I. c. s. v. lil?l:l onl y the Beth Shammai were of the opinion that the Ievirate be­ trothal had Biblical sanction. 260 Yeh. 29a.

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This problem vexed the Babylonian amoraim also, Rabbah 261 was debating the significance of 17.lNO according to the view of Beth Shammai. Did it possess the force of marriage or betrothal , if the former, then Huppah was unnecessary, if the latter then it was required. Whereas Raba262 was of the opinion, that levirate betrothal , according to Beth Shammai gave the woman , the positive status of a betrothed woman , and the doubtful position of a married woman itN1Wl p.e,01 it011N 'N71 nrv,s, w•:i'7 17.lNO . At , all events it seems to have been universally held 263 that if a woman, who had been betrothed by a levir, had sexual com­ merce with another man , she was not guilty of adultery whereas an ordinary betrothed woman was. The resemblances and differences between Jewish betrothal and Roman Sponsalia can be most clearly demonstrated in a presentation of their legal effects and consequences, Sponsalia created an affinity which in some respects was similar to that following marriage. Thus Severus very properly says that the term father-in-law, mother-in-law, son-in-law are properly used from the · time of betrothal26 4 (etiam ex sponsalibus adquiri) . A man may not contract a legal marriage with a woman betrothed to his father, although she is not properly his stepmother. 26s Nor may a woman betrothed to a certain person, marry his father although• she is not his daughter-in-law. 266 A man may not marry a, woman whose mother was previously betrothed to him, for she occupied the position of mother-in-law. 267 A prospective father-in-law could not be constrained to . give evidence against his daughter's fiance. 268 A sponsus may bring an action for an injury , for an insult (contumelia) offered to his betrothed is an outrage (iniuria) to hi.rn self. 2 69 If a woman is 262 Yeh. 39a. Yeh. 29h. Ned. 75a, cf. also Sifre Deut. 28.8, Yer. Yeh. I l , 1 , V. 1 , M. Ned. X.6. 2 6◄ D .38. 10.8, cf. also D .38. 10.6 . 1 and Volterra, Ricerche, p. 95. and 1 66. 26s D.23.2 . 1 2 . 1 , cf. Inst. of Justinian 1 . 10.9. 266 D.23.2 . 12.2. 268 D.22.5.5. 261 D.23.2. 14.4. 269 D.47 . 10. 15.24, cf. Volterra, Ricerche, p. 162, and Huvelin, La notion de l'iniuria dans le tres ancien droz'.t romain, pp. 1 0 1 ff. , reprint from Melanges A ppleton, Lyon, 1 903. 261

26J

BETROTHAL IN JEWISH AND ROMAN LAW

3 27

betrothed and marries another, she is charged with infamy. 270 If she is unfaithful during her Sponsalia, she is liable to the penalties of the Lex Julia de Adulteriis. 21 1 The murder of a sponsus or sponsa was considered as parricide within the mean­ ing of the Lex Pompeia. 2 1 2 Betrothal , on the other hand is distinguished from marriage in the following respects. Gifts which are prohibited between man and wife are permissible between betrothed persons. 2 73 There was no mourning for one betrothed. Sponsi nullus luctus est. 2 74 Sponsalia could be ruptured by a mere renunciation con ­ sisting of the formula Condicione tua non utor. 2 1s If a freedwoman , who was betrothed to her patron , notifies him of the repudiation of the contract, she may marry another, even against the will of the patron. 2 7 6 I f the patron has betrothed himself to, or destined himself for some other woman, or has sought marriage with another, he must be considered to desire no longer the freedwoman to be his wife. 2 71 In connection with betrothal a few relevant rules governing dowry may be cited here. If a dowry was promised before betrothal (sponsalibus nondum factis) at a time when the fiancee refused to consider marriage, and subsequently the couple were married , the dowry must be paid. 2 78 If a betrothed woman gives a dowry and does not marry, it is held that the privilege which applies to personal actions, should as a matter of courtesy be 21

D.3.2 . 1 3.3. D.48.5 . 1 4.3, 2 12 D.48.9.3,· sed et novercae et sponsae personae omissae sunt, sententia tamen legis continentur, cf. Mommsen, Romisches Strafrecht, pp. 644-645 , de Visscher, Etudes de Droit Romain, Paris, 193 1 , p. 442 , note 5 . 2 73 Cf. note 167 . 274 D.3.2.9. 1 . 2 1s D.24. 2 . 2 . 2 , cf. also Karlowa, Romische Rechtsgeschichte, I I , 1 79, note 2 . 2 6 1 D.23.2 .45.4. Et ideo invito patrono nuntium sponsa liberta si miserit, cum alio conubium habet, cf. Duff, Freedman in the Early Roman Empire , Oxford, 1928, p . 61 for the rule of marriage between a patron and his freed woman. 2 77 D:24.2 . 1 1.2. The pattern of relationship between the Hebrew master and his bondwoman resembles in some respects that of the Roman patron and his liberta, cf. also Roby, Roman Private Law I .90. 218 D.23.3.58 pr. °

211

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JEWISH AND ROMAN LAW

extended in the case of a dowry, and include a personal action for recovery. 279 With regard to the question whether a sponsus can acquire property intended as a dowry by usucapion , (an sponsus, hoc est qui nondum maritus est, possit rem pro dote -usucapere) , J ulian 28 0 answers that if the fiancee delivered the property with the in ten­ tion (si sponsa sponso ea mente tradident res) that it should belong to her betrothed after the marriage , there will be no usucapion , otherwis1= the property will be his. Gaius281 remarks that the Lex Julia which prohibits a hus­ band from encumbering or alienating his dowry, ought to be more liberally interpreted (plenius interpretanda est) so that the same rule apply to the betrothed . According to Ulpian 282 if a betrothed woman gives a dowry, and the marriage does not follow, (nuptiis renuntiatum est) she can demand back her dowry (dotem condicit) . The same rule applies if a minor under twelve is married , although she cannot be considered a wife. Paulus283 adds, that it is in the public interest that she recover her entire dowry so that she may be able to marry when she becomes of age. With regard to the espousals (,1)7' , w, ,p ) 284 of the Hebrew .

2

.

19 D .23.3. 7 4. Si sponsa dotem dederit nee n1,1,pserit . . . exemplo dotis condic­ tioni favoris ratione privilegium, quod inter personales actiones vertitur, tribui placuit. •So D .4 1 .9. 1 .2. On the problem of the status of the dowry before betrothal , cf. Czyhlarz, Das rom·ische Dotalrecht, pp. 1 4 1-1 5 1 and Albertario, Stuai di Diri.tto Romano, I , 1 933, pp. 3 1 9-336 , who has shown that in classical _law the dotis datio ante nupt-ias immediately became the property of the betrothed , · but title to i t was revoked if marriage failed to ensue, nuptis non secutis. I t was Justinian w h o introduced the rule that the intention of t h e giver was the deciding factor whether title passed to the betrothed even before matrimony. 281 D.23.5 .4. 282 D. 4 2.5 . 1 7 . 1 . For the complications i n this passage, cf. Vol t erra, Ricerche, p. 1 1 8 . 283 D. 4 2.5. 1 8 . Interest enim re·i publicae et hanc sol-idttm consequi, ttl aetate permittente nubere possit, cf. also Yer. Git. V.3 (46d) ?�i1 1i1'tll ,;:, i1l'n 'l:lO i1l�tll'? i1'? V J'�!:>1p and Babli 49b , and Tosafot 1. c. s. v. �:•n c1t110 . •84 A term used by R. Isaac , Kid. 186 . . 28s T he Septuagint translates the term i10� in Ex. 2 1 . i by olKETLS in opposi­ tion to c•i::iv c5o0Xa, and the Vulgate employs the term famula in contrast to

BETROTHAL IN JEWISH AND ROMAN LAW

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bondwoman , (i1' i:1Vi1 i1T.,�) 28s a n umber of interesting points were

made by · the Rabbis. However the discussions were purely on a theoretical level , for the institution of civil bondage had com­

pletely disappeared already before the Babylonian exile. 286 From

the interpretations of the rabbis we learn what aspects of the insti tution of civil bondage had become distasteful to them .

The· Pentateuch lays down four principal -rules concerning

the Hebrew bondwoman , who usually became the concubine

of her master. 28 7

First , if the master, who had designated her

for himself,288 was dissatisfied with her , then he must let her be c•,�!J ancillae, cf. Rengstorf, Theologisches Worterbuch zum Neuen Testament, I . 268 ff. 286 Cf. Kid. 69a , Yer. Shebuot V I l .8, Arakin 32b, and Yer. Git . IV.3. 281 nis,• ,, irvtot (Ex. 2 1 .8) . The Ketib in this .instance happens to be the origi nal reading. Cf. M . David in Outtestamentische Studien , Deel V, Leyden 1948, p. 68, note 18 . . The Vu lgate renders this phrase cui tradita fuerat. Tradere in legal texts is used in connection with a concubine , cf. the statement of Marcel lus, Et si qua se in concubinatu alterius quam patron i tradidisset, matris familias honestatem non habuisse dico. If a woman gives herself up to concu­ binage with some one other than her patron , I say that she does not possess the honor of a mater familias, (D.23 '. 2 .4 1 . 1 ) . In non-legal texts the term tradere is employed in the sense of giving in marriage. A ugustus jilVJ.m suam equiti Romano tradere meditatus ·est. Tacitus, Annales, 4, 40 . . 28' In the versions we have three interpretations of in this verse (Ex. 2 1 .9) . First, it means betrothal . This view is presupposed in the rendering of the Septuagint Ea.JI OE T� vl� Ka,80µ0Ao-y11:l ltlll m . 291 C f. Obadiah Sforno to Ex. 2 1 . 10 cptl? '::C%3'1 ':>'ii N?N C'lVl m::i,;,1;, imtl J'NIV Jil"Pl!>o::i, cf. Yeh. 65a. 292 With regard to the definition of the first term i1'1NlV and the. third i1MllV there are con flicting · traditions in Rabbinic sources, (Ket. 47.b-,-48a Yeru­ shalmi V I I . 5 , Mekilta, ed. Horowitz, • pp. 258-259, Mekilta di R. Shimon , p. 124 : The older view is that which interprets n,Nru as food (mmtl) in the Mekilta di R. Shimon, I. c. i!Ol'1!> ; and ill'\llll as sexual commerce (yiN 7,,) . This view is foreshadowed in the Septuagint, (cf. Frankel, Ueber den Einfluss des pali:istinischen Exegese, Leipzig, 1 85 1 , p. 93) . In an early Greek marriage contract it is specified that the husband is required to maintain, and clothe his wife according to his means, and give his wife what is due her, cf. Niezold , Die Eke in Egypten, 1903, p. 2 ) . Similarly, in the Syriac, and . in the two Targumim. The later view, which explains i1'1NlV as conjugal duties and l'll'\llll meaning food, is found · in the first three rabbinic sources noted above. Cf. Blau, Papyrus und Talmud in gegenseitiger Beleuchtung, 19 1 3, p. 27, note 58. 29 J According to the Mekilta, (ed . Horowitz , p . 259) it refers to verses 8-9, whereas Dil lmann takes it as referring to verse 10, cf. his commentary ad. loc. However, the old Latin version only partly follows the rabbinic tradition .

,,:s,•

,:s,

Quod si aliam sumet sibi ; quae iusta sunt . et vestem et consuetudinem eius non abnegat ei (cf. Ulysse Robert, Pentateuchi Versio Latina Antiquissima , Paris,

188 1 , I, p. 1 7 5 ) . If the text is sound which is not certain , then - the meaning is as follows ; If he take another wife to himself, he shall not. deny her what is due to her, namely her raiment and marital rights. . Interesting is the use of the term consuetudo, which is used in literary texts in a dishonorable sense.

BETROTHAL IN JEWISH AND ROMAN LAW

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While it i s quite clear that the status o f the Hebrew bond­ woman in Biblical times was usually that of a concubine,294 the Tannaim who discussed this legal institution could not but feel strange to the . inferior· social position assigned to the Hebrew bondwoman, and therefore, in order to raise her dignity, be­ stowed upon her the status of a betrothed woman, albeit, an anomalous one. Thus we read :295 How is the ceremony of Yiud (,,v, ) performed ? He says to her in the presence of two persons "You are betrothed unto me296 and henceforth he treats her as However in legal sources it has no derogatory implications, cf. e. g. D.23.2.24. In liberae mulieri consuetudine non concubinatus sed nuptiae intelligendae sunt, and note also D.48.5.35. It is quite cle�r that the author of this translation was o familiar with the Tannaitic view that the husband's duty to support his wif was not Biblical ly ordained, cf. Ket. 47b, ;,•i• i1tvVl.l nnn ;,•nmr.c upn and Yer. Maasrot I I I . 1 and parallels ;,iin ,:ii i1tvN? n,m.c J'N. Strangely enough , the Talmud does not explain how i11Ntv is to be interpreted according to this view. Nahmanides to Ex. 2 1 . 1 0 took i11Ntv to mean itv:i ::nip following R. Joseph in Ket. 48a. However, since the Old Latin version does not translate i11Nltl, it is quite possible that iusta refers to the rights of burial, in which case a slight emendation of the text will be necessary, namely, the deletion of sunt after quae iusta, cf. the use of the term in Plautus ' 'justa facere uxori" (Cistel­ laria 1 .3 .28) and "more regio justa magnifice facere," (Sallust, Jurgutha, 1 1.2). While it is true that according to the baraita (Ket. 47b) burial too is only a rab­ binical enactment, there may well have been an older view that it is Biblical. Cf. Yer. Ket. IV.6 c•:i',:,', ri:i,w,.c intvN Ni1ntv nvi ? V n,v N?tv. The translator took i11Ntv to signify remains = reliquiae, which means also the remains of a deceased person, cf. Ex. 8.3 where 7•niiNtv.tl = dough i� rendered by the Vulgate reliquias ciborum tuorum, cf. Vetus Italica, ed, Saba tier, 1 . 1 77, Paris 1 7 51. 29 ◄ This appears evident from the fact that Scripture uses the indefinite term iv•, cf. also Castello, In tema di Matrimonio e concubinato nel Mondo romano, Milan, 1940, p. 12, note 1 , and Ceci, Le Etimologie dei Giureconsulti Romani Turin, 1892, pp. 95 ff. Cf. also Eben ha-Ezer 26.1 ,,,N in"D CN ?:IN i1 ,,n:i ;,iil.lNi1 Wl?D N.•m • • • i1IVN and the Tur, 1. c. 2 9s Kid . 19b. 296 The Mekilta di R. Shimeon , p. 123, adds the remark "and he need not give her any money as betrothal, J'tviip ;,', 1n•, 7•,ic il'Ni ." Maimonides c•i:iv VI .7 has the additional .formula imN, ,, nN •im . Curiously enough , Rashi explains it as follows 7•mpl.l '} O:J:i '' nivP0 nN •i;, ;,•i::iv;, inl.lN? 11.lN (Kid. 18b s. v. iiv•) , cf. also 12a s. v. iiv•i N'Dii and Kid. 6a where Rashi explains '' nivP0 as follows ;,•,:iv;, i1.CN:i J'tviip 1,w, Ni;,rv ;,iv• itvN 1,rv, . Where the son betroths the bondwoman he says 7•ci::i 7':IN ?:l'ptv '} O:J:l ,, nivPc nN ,,;, (Rashi to Ex. 2 1 .9), cf. Yerushalmi Kid. I.2 'l!l:l i1? icN ;,i.l}"1' Nii1 iic•:, N'Vtviii •, •ln '? ni,l}i'1' nN '1i1 Cl'ltv.

332

J E W ISH AN D ROM AN LAW

a wife and not as a slave. n� ,,n t:l'Jfl1 'J!l::1 n, ion� iw• n,�o ,�,:, lmo n::i JmJ u,�, mfl1'N Jmo n::i mm ,, no,,No MN 'in . ,, nfl1iipo mnE:>tv. The Baraita implies that she is entitled to food , raiment and conj ugal duties as every married woman. 297 Although , legally speaking, she is only betrothed. 298 Furtherm9re, after the bondwoman is betrothed (i11l7"fl10) if one has sexual relations with her, he is guilty of a capital offence and she requires a 299 divorce if she wishes to leave her master. is not ' . However she . considered a fully married woman, for her husband may not inherit her property, nor defile himself at her funeral , if he be a priest, nor annul her vows3 00 unless she underwent the formal ' marriage. 301 Now the betrothal of the bondwoman was con­ sidered an anomalous one from two aspects. First, the bond­ woman could live with the master, and was entitled to mainte­ nance and raiment which was not allowed to the betrothed free woman. Secondly, the manner of betrothal was different. According to the majority opinion , the declaration of betrothal was not accompanied by a gift of money or its equivalent, as it was held that at the time when the master purchased the bondwoman he already expected that the purchase money would cover the eventual future betrothal. 302 R. Jose ben J udah . held that the

,,l''

29 7

This is explicitly said by R . Josiah in the Mekilta (ed . Horowitz, p. 258) a similar view is expressed i n Mekilta di R. Shimon , p. 1 24. •9 8 Like any other Jewish woman, her consent to the betrothal is necessary, Kid . 1 9a, cf. also M ekilta di R. Shimon , p. 1 23 and Yer. Kid . I . 2 . Cf. the remark of Marcianus , Invitam libertam uxorem ducere patronus non potest (D.23.2 .28) . 2 99 i:,l::1 N? N i1N?1' l'Nl y,, n•::1 nn•IJ n•,v l'::l"n niV"t/JIJ n•,::1vn illJN 'J N (Mekilta di R. Shimon , p. 1 24) , cf. also Kid . 1 8a P'V::l Ni:,'l Ni:,'tv!l niv• and Mekilta ed . Horowitz, p . 259. Amram finds the germ for the wife's right to sue for divorce in th is passage, cf. Jewish Law of Divorce, Philadel ph ia 1896, pp. 55-5 6 . JOO il' 11l 1!li1?1 il? Nl.)i:,•,, i1t/J11'? ill'I.) Kj:).!' 1 Kid . 18b. 3° 1 i1!l1n? Ol::Jnt/J iv , Maimonides, c•,::1 v , V.9. 3° 2 As the Yeru shal m i (Kid . I .2) pu ts it c•,,v,, '] O::J yn•l illlrl'Ni i!Vf/JIJ, This opinion comes closer to the view presupposed in Scripture, and is partial l y in accordance with the view o f R. J ose ha-Gal i l i ,v,,, nllJ ? V [ N?K] 1:::llJ' N ? • 01• · , •,::1,. \Ve have adopted here t h e emendation i n t h e text o f t h e Mekilta a s suggested by Geiger, Urschrift, p . 1 88 , c f . also the statemen t o f R . Ishmael nl;')"i'' 'NIV1 1J'N 1-t i n "JN il) " tot�, i11•, mlJ ,v nn;,,ro i::1i1J ::1,n::in piN::l (Mekilta ed. , Horowitz, p. 258) .

,,,,lil

PECULIUM IN JEWISH AND ROMAN LAW

333

master intended n o betrothal at the time of the purchase o f the bondwoman303 and the money then given was solely for her house4old services. H ence, if the ma�ter or his son betrothed her subsequently, he could do so as long as, and by virtue of the fact that she still owed him services equal in value to , not less than , a Perutah.3°4 The Tannaim also envisaged the possibility of a formal mar­ riage of a bondwoman with her master, namely, by the ceremony of spreading his garment over her. 30 5 ,n,',� IV1'!>1V ,,,:, il::l 1il::l::l ili:,io? '�w, U'� :rnv il'?SJ but it is nowhere stated that this was legally required. However, if the master lived with his bond­ woman and did not become betrothed to her, then he may not keep her in his household. 3 o6 There is an old . tradition probably going back to Tannaitic As the Babli says 1ln'l J't01ip', nt? nmwttiil mvc, Kid. 1 8b. Cf. Yer. Kid. I.2 c•iiv"', "J C:> ii? Jnll "J1C:J. In the Babli and the Yeru­ shalmi the legal consequences of these two d ivergent views are elaborated in detail , R . Jose ben Judah probably accepted R. Akiba's view iv•', ;,�, cN iv"l;J (Mekilta, p. 2 5 7 ) that it was not obligatory on the master to betroth the bondwoman. Neither is the law of slander applicable to the betrothed bondwoman, cf. Yer. Ket. IV.4, (28b-c) i1'?N ::iipi-11 •nnp', nttli1 iltl1Ni1 nN ictt i 3°3

3 o4

1',,v,,

�,!) •

Kiddushin 18b, cf. Buchler, Lewy-Festschrift, 1 1 3-1 15 for a ful l discus­ sion of this point. Rashi's observation in Bekorot 34a il'1:JVil i!CN? 11,N n,v•w il'?V 1'.!.ll:> t01'.!.l1 ilNtL'll seems to support our view that, n•',� nc•,!) is marriage and not ,,v• but Rashi thus contradicts his own interpretation in Kid . 18b, as wel l as that of the . Amoraim. If the text of Rashi in Bekorot is sound, we would explain i t as follows : the master performed the i,v• by spreading his garment over her, and subsequently married her, the word ilNtL'll should follow il'?V 1'.!.ll:> tll1'.!.l1 . This is borne out by Rashi's remark to Ex. 2 1 .8 where he explains niv• . N? it0N as follows i!tllN? ,, i!C'l:>il?l i!iv•', ,, il'iltll i . e. it was his duty to perform the ,iv• and then to marry her. Similarly Ibo Ezra and Nahmanides to Ex. 2 1 . 8 seem to imply that while it is h is legal obligation to perform the ,,v•, merely a moral obl igation rests upon the master to marry the betrothed bondwoman. For the spreading of the garment as a symbol of marriage, note that in English law coverture denotes the status of a married woman because she is under the cover or protection of her husband, and she is therefore called a feme-covert. Cf. Biackstone, Commentaries on the Laws of England, London, 1825, I, p. 441 . 3° 6 This i s the view of R . Jonathan hen Eutolmos lill il:J il:Jt/J inNC il:J 1iJ::1::1 ill;J"P' 'Nt01 ll'N Nlil "JN nll::!il �!ltvc:, il:J Jill N?l p•r::i lillC n::i ( Mekilta ed. Horowitz, p. 157) . . 3os

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JEWISH AND ROMAN LAW

times, preserved in the Vulgate, which required . the master to marry his betrothed bondwoman if during her period of service he took another woman for his wife. The text of the Vulgate to Ex. 2 1 . 1 0 reads as follows : Quod si alteram ei acceperit, provi­

devit puellae nuptias, et vestimenta, et pretium pudicitiae non negabit. 3 0 7 It is more than evident that the Latin rea,ding departs

to some. extent from the Massoretic text and deviates quite far from the tradition,al interpretation of this passage. The Vulgate means to say as follows : If a man acquires· a bondwoman , and then she is betrothed to his son 308 and the latter subsequently married another woman , then the son is in duty bound to marry3.09 his bondwoman in order to insure her the equa( and full treat­ ment of a duly wedded wife, to provide her with raiment3 10 and with Mohar3 11 at her: nuptials. There is nothing in the Tannaitic

3°7 In a decree of Constantine 32 1 C . . E . the donatio maritalis is termed a praemium pudicitiae (C.5 . 1 6 . 24. 1 ) which is the closest to pretium pudicitiae, cf. al so Corbett, Roman Law of Marriage, p . 205 , note In ri1eclieval deeds , pretium and praemium are used interchangeably, cf. Du Cange, Glossarium,

l

Niort, 1 886, VI .493 . Cf. below note 3 1 1 .

Sin autem filio suo desponderit eam, juxta morem filiarum Jaciet illi. · The phrase juxta morem reminds one of Ul pian's phrase nam moris fuit veteribus stipulari et spondere sibi uxores futuras (D.23 . 1 . 2 ) . 3°9 The Vulgate took the phrase i1"lNto to mean wife a s i ndeed the rabbis interpret iNto elsewhere in this sense , cf. for example, ,�Nlto intoN N' N i iNto J'N Nli1 7 '�N "lNto (Sifra ed . Weiss f. , 93c) hence providebit puellae nuptias means he shal l arrange to marry the bondwoman . 3 i o The translation vestimenta requires no further comment as it is the l iteral rendering of ;,n, o:, . As a bondwoman was u sual ly poor it was the duty of tlie prospective husband to provide her with a trousseau , cf. also M . Ketu ­ bot V I . S ;io:,c tt, N •n,o:,:::i mo:,N w:::i, i1lO'l:1Nto:i ,31:::i;, iCN' N' ;,�1,31 i10'l:li1, p o!l i1':::IN n•:::i:::i ;,11311 . If the father stipulated no clothing for his daughter, the bride­ groom must provide clothing for the bride even before she is married . .311 The Vulgate translated i1Mllll by pretium pudicitae. Cf. above note 3 0 7 . This Latin phrase is a Hapax Legomenon in the Vu lgate, if the concordance may be trusted. For the pretium pudicitiae in Byzantine law, cf. Taubenschlag , The Law of Greco-Roman Egypt, p. 9 6 , note 9 8 . For the pretium virginitatis in German law, cf. Westermarck , History of Human Marriage, I I .422 . The Vulgate here interpreted ;,nm, in a double sense, first, as a kind of Mohar, m,v in the sense of Deut. 2 2 . 29 mv itoN nnn • • • "lo:, c•wz:in • • • to'Ni1 Jnll . For at the time he betrothed her he gave her no gift, for the 1131• of a bondwoman involved no special )'wi,p "1 0:l . Secondly the verse N' i1nl1 ll . . . ,� np• ninN ON 3° 8

PECULIUM IN JEWISH AND ROMAN LAW

335

sources which i s inconsistent with this interpretation. As a matter of fact, this exposition follows logically from the Tan­ naitic design to elevate the social position of the Hebrew bond­ woman . The Amoraim were puzzled concerning the status of the bondwoman who was betrothed to her master, because she enjoyed certain conjugal rights and privileges denied to an espoused free woman. 3 1 2 They arrived however at the conclusion that ,w, conferred the status of betrothal upon the bond­ woinan . 3 13 By a singular construction of the passage w,'!lW 1,,:, ni:,io? 'NWi il'N :nw i1'?3J ,n,,� they assumed that the spreading of the garment was a form of ,,v, 3 1 4 Since the betrothal of a bondwoman was of an exceptional nature, the amoraim 3 1 5 were divided over the rule whether a father could betroth his son to his bondwoman, if he were a minor, or against his wiIL This right was denied to the father with respect to his son's betrothal to a free woman;

.

,v

l)1l' seemed to remind one of Gen. 3 1 . 50 •m::i C'Wl npn CNi •m::i l"IN mvn CN . Although at the time the bondwoman was married she was no virgin, because she was permitted to . J ive with her mas ter-fiance , she would be entitled to Mohar or (to use the Tannaitic phrase) her Ketubah of 200 zuz as we read in M. Ket. I . 5 ·•J!lD c•,,n::i nm,� 1,v�, ',,::,, il'N c•iv::i N,w i11ii!•::i ,•on ,�N , :nNil i!Dl' in•no Nliltv. I n Judaea, if a bridegroom ate with his bride al l alone i n the home of his prospective father-in-law, there can be no actio virginitatis, since they were together·. by themselves, see also above note 2 3 7 . 3u Cf. Maimonides, mw•N X. 1 , cf. also Meiri t o Kid. ed . Schreiber, p. 1 14 . JIJ Kid . 1 8 b , according to Yerushal mi Kid . 1 .2 R. Jose b . Judah considered ,,v• as betrothal Ji! ;,i,n •w,,p N::li11 J'1ll'' l'''N i11lil' · ,::i •op •:ii ;:::io i::io•o. 3 i4 Kid . I. c,. according to R . Nah man b. Isaac, the spreading of the garment refers to the betrothal of free women, cf. Strashun's remarks I. c. that th is passage is the origin of the custom for the bride to cover herself with a veil , NDU' il , cf. Aaron ha-Kohen of Lune) C"n mniN 1 1 .7 3 . For the spreading of the garment, cf. also l'illDil ed. Berl in, 1 855 , pp. 9 1-92 . 3, 5 R. Yannai held that the father could betroth her to his son who was of age, and with h is consen t ( Kid . 1 9a ) . R. Yohanan was of the view that the father could arrange the ,iv • for his son even if h e were a minor and against his will (Yer. Kid . 1 . 2 ) . R . Lakish shared the view of R. Yannai , according to the Palestinian tradition (Yer. Kid . I . 2 ) but according to the Babli it was R. Lakish who raised the question whether he could arrange the ,,v, for h is minor son (Ki d . 19a ) .

336

JEWISH AND ROMAN LAW

An instance of Egyptian national law316 is to be discerned in the view of a group of scholars in Alexandria, cited · by Philo with reference to seriousness of the crime for violating a betrothed woman. Thus we read :3 1 7 Some consider the crime of v1ro"'(a­ µwv as midway between the corruption of a virgin (cp0op a ) J 18 and adultery (µoixELa.) 3 19 when mutual agreements have affi­ anced the parties beyond all doubt (ifra.v .0µ0Ao"'(latl20 µEv VTrEPE'Y'YV� eune­ (}tB(JXOµevov. (1) Les Juifs dans l' Empire Romain I I, 60, note 2. (2) Das Erbrechtlichte Entwicklung, Berlin, 1 824, I, 143, (3) TscHERNoWITZ in ha-Tekufah, XI 121 , pp . 271 ff. This author has previously dealt with dowry in the Jubilee volume in honor of Sokolow, 1904 pp. 309-328, and in Zei tschrift fii.r Vergleichende Rechtswissenschaft, 29 (1913) 445-473, GULAK, .A ltere Talmudische Parallelen zur Novelle 97 des Kaisers Justian in Z. V. R. 47 (1 933) 241-255, and Das Urkundenwesen im Talmud, 1935, pp. 63-82 has drawn upon the Greek papyri. EPSTEIN, Jewish Marriage Contract, pp. 89-106, gives a brief historical survey; (4) SENECA, Moral Epistles, 89, 1 . (5) MARCUS AURELIUS, Meditatirins, II, 13. Paul too remarks tha t our knowledge is piecemeal : µi,iov; yivdJcn,oµev (1 Cor.

e"

3 48

ya,i

DOWRY IN .JEWISH AND ROMAN LAW

349

As to the definition of the term Dos we learn from Varro (1) the following : Dos, si nuptiarum causa data. : haec Graece 6w·dvrJ : ita enim hoc Siculi. Dowry is called Dos if it is given for the pur.pose of marriage ; this in Greek is dwr:lv'YJ (2) . For thus the Sicilians call it. But Varro does not commit himself as to whether· the dos is given by the husband or by the wife. With respect to the early Teutons, Tacitus (3) tells us : As for dowry, it is not the wife who brings it to the husband, but the husband to the wife (Dotem non uxor ma­ rito, sed uxori maritus otfert) . . . and she herself in turn, brings some piece of armor to her husband ( atque in vicem ipse armorum aliquid viro adfert). This they regard as the strongest bond between them, its sacred mystery, and divine protec­ tion for marriage (hoc maximum vinculum, haec arcana sacra,

hos coniugales deos arbitrantur. However, the term Dos (4) as was used by the Roman

jurists, constitutes the gifts brought in by . the bride for the bridegroom for the purpose of contributing to the upkeep of the marriage, and this became the property of the husband at least as long as the marriage endured. 13. 9) With regard to history, Polybius writes >. (f>oLYBIUs, I 4. 9), cf. also D1xoN, The Human Situa­ tion, New York (1938) p. 379. (1) De Lingua Latina V. 1 75. (2) Liddell and . Scott s. v. for the early use of this term. For dowry in Greek law, cf. H. WOLFF in Traditio IL 1944 pp. 53-65 ; for Graeco-Egyptian law, cf. TAUBENSCHLAG, Graeco- Roman Law of Egypt I. 95-96 and WENGER, Que llen des romischen Rechts, p. 800 note 719 and p. 811 ff. (3) Germania c. 18. For the double meaning of Dos note that Finley maintains that :n:eol� in Demosthenes, against Spudias 41. 3 designates dowry that is given to the husband, whereas in I. 45. 28 it denotes the dowry given to the wife, cf. Studies in Land and Credit in Ancient Athens, p. 243. (4) Cf. D. 23. 3. 1 and MoNIER, Manuel Elementaire de DroU Romain, Paris 1 947, vol. I, p. 290 ff., and JoRs-KuNKEL-WENGER, Romisches Recht, 3rd ed., p. 284 ff. and p. 417. A book on dowry, De Dotibus, of which a few fragments have survived was written by SERVIUS SuLPICIUS (died 43 B. C. E.), cf. KRUE GER, Geschichte der Quellen und Literatur des romischen Rechts, 1912, p. 66. In the Mishnah, the laws about dowry constitute most of Chapter six of the treatise of Ketubot.

350

J EWISH AND ROM A N LAW

While there is no special word for Dowry in ancient Hebrew, it is reasonable to assume that already in Biblical times it was customary for the bride to bring in property at the time of marriage, although it was not required by law. It was probably regarded as gifts in return for the Mohar (1) paid by the bridegroom. It is in this light that we look upon the female slaves brought in by Rebecca at her nuptials, and the gifts bestowed by Laban in behalf of Leah and Rachel at their wedding, the fields of springs given by Caleb to his daughter at her . marriage to Othniel and denoted a blessing (Berakah). An ancient Egyptian custom is reflected in the Scriptural narrative concerning the gift (Shiluhim) ( 2) of the city of Gezer given by Pharaoh on the occasion of the mar­ riage of King Solomon to the Egyptian Princess. It is hardly likely that Shiluhim in this verse is a technical term for dowry. Similarly, in Homer we read that the man purchases the bride from his parents, since an unmarried daughter consti­ tutes a valuable possession which is lost to them. At the same time it was customary to give a dowry (8). According to the Hammurabi Code 159-16 1 , at the com­ pletion of a marriage, the father of the bride made a gift of property by sealed deed called Seriktum which corresponds to Dos, whereas the settlement made by the husband on the wife is termed Nudunum (Hammurabi Code 171-172 and twice in the Assyrian Laws). However, in the Old and Neo­ Babylonian documents, Nudunuriz signifies the gifts bestowed on the bride by her parents, i . e. her dowry. In other words, (1) Mohar actually signifies the bride price which was paid by the bridegroom to the father of the bride. The Septuagint incorrectly translates the Hebrew word Mohar in Gen. 34. 12 and Ex. 22. 1 6-1 7 by tpBQV�, and the Vulgate following suit renders it by Dos. . The Mohar was similar to the Germanic Morgengabe, cf. Gluck, Pandekten, vol. 24, pp. 412-417, and GuLAK, Urkundenwesen, p. 66. For the Arabic Mahr, cf. WELLHA.USEN, Die Ehe bei den Arabern, Nachrichten von der K. G. d. W., zu Gottingen 1893, n ° 1 1 , pp 443-435, and SAN� TILLANA, Istituzioni di Diritto Musulmano Malichita, I. 1926, Rome, pp. 216-220. (2) Cf. GULAK, Urkundenwesen, p. 55, and NEUFELD, Ancient He­ brew Marriage Laws, p. 110. (3) Cf. Od. I. - 277, II. 196, Iliad VI. 395, and IX. 144.

DOWRY IN JEWISH AND ROMAN LAW

35 1

Nudunum in the documents· has the opposite meaning it possesses in the Hammurabi Code (1). The prophet Ezekiel who lived in Babylonia, charged Jerusalem in his allegorical admonition in ironical terms as being contrary to other women. To all harlots gifts are given, but thou hast given thy gifts (Nedanayik) (2) to all thy lovers. His use of the term Nadan in this passage shows familiarity with the term Nudunum in the sense that it was used in the Hammurabi Code. The root meaning of the Babylonian Nudunum, the Aramaic Nedunya (3), the Greek 31:(]olE (4) and q,eev� (5) the Latin Dos ( 6) is gift. In post-exilic times the reference to the custom of giving dowry is more specific, but there still is no special term for this institution. Thus in one of the Assuan Papyri (7), a dis­ tinction seems to be made between two kinds of property brought in by the wife at the time of marriage. One category (1) DRIVER and MILES, Babylonian Laws, pp. 265, 271-2, and CuQ, Eludes sur le Droit Babylonien, Paris 1929, p. 30 note 2, pp. 42-3.

(2) The Septuagint renders this word µia0wµa-ra, the Vulgate has mercedes, and the Aramaic has >, j ust as they do for the Hebrew Ellman in Deut. 23. 19. The ancient versions were based on an old conj ecture rather than on any genuine interpretation. (3) Ketupot 54a, Baba Metsia 74b, Ta'anit 24a, and Rashi, Gen. 31. 15. cf. also KRAuss, Talmudische Archaeo logie, II. 43, and LAM­ PRONTI, Pahad Yitshak, s. v. Nedunya. (4) For the difference between nQol� and q;sev�, cf. BEAUCHET, Histoire du Droit Prive de la Republique Athenienne, I. 255-256, KoscHAKER, Studt Bon/ante, IV, p. 4, notes 6-7, and WOLFF, Tra­ ditio, II. 1 944, p. 54, note 58. (5) The term q;eQv� is found in the Septuagint, also in Joshua 1 6. 10 (with obvious dependence upon the Hebrew I. Kings 9. 16 where Shiluhim is rendered by Rashi as Nedunyah), and 2 Maccabees l. 14. (cf. XENOPHON, Cyrus 8. 5. 19). (6) In the Vulgate, Dos is also used to translate Mohar in Gen. 34. 12 and Ex. 22. 1 7. Similiarly, Shiluhim is translated by dos in I. Kings 9. 1 6. Jerome's translation of 2 Mac. 1. 14 et acciperet pecu­ nias multas dotis nomine, shows acquaintance with Roman law. The Greek has anoawla,. On the other hand, in Gen. 30. 20, Dos is used in a figurative sense, Dotavit me Deus dote bano, which was influenced by the Septuagint '5s'5werJ-rat 6 Oe6, µo, '5we ov uaA.ov Dos is cognate with the Greek '5w, = gift, cf. CzYHLARZ, Das romische Dotalrecht, Giessen, 1 870, p . 1 1 , note 10. (7) COWLEY, Aramaic Papyri, n° 15, and EPSTEIN, Jewish Mar­ riage Contract., p. 94.

352

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is indicated by the phrase > all that she brought in her hand, and the other kind is described as > i.e. her property and her posses­ sion. It is interesting to note that the phrase > is the precursor of the Geonic formula (1) >. Early writers considered dowry as a well established in­ stitution going back to pre-Mosaic times. Thus the author of the Testament of Joseph (18. 4) informs us that Joseph's wife brought in a hundred talents of gold as a dowry (2) . The unknown Greek . translator o f Exodus 18. 1 2 rendered > after he sent her away by the phrase µe-ra -r:iJv neoiua (3). An ancient Jewish tradition states that the daughters-in-law of Naomi renounced their mar­ riage settlement (Ketubah) in favor of their mother-in-law (4) . Pharaoh seized the throne o f Solomon i n behalf o f his widowed daughter who claimed ;tier dowry from the royal estate (5) . The Jewish Hellenistic writers were familiar with the ruse of marrying a goddess for the sake of her dowry. Thus the author of 2 Maccabees 2.14 (6) records th�t Antiochus, on the pretext of marrying the goddess in 'the Temple of Na­ naea, came into the place he and his friends, that they may take a great part of the treasures by the way of dowry. (1) GuLAK, O tsar ha-Shetarot, p. 30, cf. Rashi to Yebamot, 66a, Ket 47a, and B. M. 104b. (2) Cf. REIN, Das Privatrecht der Romer, Leipzig, 1 858, p. 424 note 2, mentions sums as large as 25 and 50 talents given as dowry. (3) Recorded in Field' s Hexapla of Origen, p. 1 1 2. This interpre­ tation is found in the commentary of the twelfth century French commentator, R. Samuel b en Meir, who explains Shiluheha as Ne­ dunya = dowry. Already R. Joshua (died about 130 C. E.) inter­ preted the phrase > as , cf. MeKILTA, ed. HOROWITZ, p. 1 9 0 ; this view is attributed to R. Eleazar in Mekilta di R. · Shimon, p. 86. The Targum Orikelos to Ex. 1 8 . 2 appears to have followed the opinion of R. Joshua. The term neol� does not occur in the Septuagint. (4) Ruth Rabbah II. 1 5 . (5) Koheleth Rabbah IX. 2 . ( 6 ) Moffat remarks : For this diplomatic trick s e e SENEcA's Orat. Suas 1, where Antony agrees to marry Athene for a dowry of a thousand talents. Antio chu s is said to have tried a similar device at Hierapolis in Syria, cf. CHARLES, Apocrypha I. 132.

DOWRY IN JEWISH AND ROMAN LAW

353

In Tannaitic times, dowry was obligatory and regulated by law, and was no longer voluntary and. determined com­ pletely by custom (1) . Still no special term in general use . was coined by the Tannaim to designate dowry (2) . While dowry was a significant incident in marriage, yet it consti­ tuted only part of the financial arrangements (3) concomitant with the nuptials which were included in the Ketubah, (4) i . e. the Marriage Contract. The Ketubah is more than the instrumentum dotale ( 5) of the Roman Law. The Ketupqh incorporated the fixed settlements of the groom upon the bride required by law, the additional amount of settlement voluntarily made by the groom, payable at divorce or at this death, and the dowry or property brought in by the wife which was recorded in the writ and was known as Nikse Tson Barze[, literally iron sheep property. The hus- · band had the right to enj oy the usufruct of this property ( 6) . While the term Ketubah in the Mishnah usually denotes (1) There is no reference to dowry in the Twelve Tables. Among the Rom ans in early times dowry was mostly customary rather than legal, cf. CzYHLARz, Das romische Dotalrech t, p. 1 . (2) Sometimes > i s used t o connote dowry, cf. the baraita in Ke t. 68b. The circumlocution > is another way of describing dowry, cf. Ke t. 47a. The Amoraim used the term q;eevfJ not merely in the sense of dowry, but to include the entire marriage settlement which is meant by Ke tubah, cf. also the phrase > in Pal. Gittin V. 7. (3) Speaking evidently from experience, the rabbis say that prac­ tically every �arriage settlement involves some wrangling, cf. S.HAB­ BAT 1 30a, Tosafot KET. 2a s. v. le-Yorn. (4) Literally, the Writ par excellence. In the Digest, Scriptum is used with respect to a Testament, cf. HEUMANN-SECKEL, Lexikon s. v. Scriptum In C. 5. 15 1 Scriptura is used in apposition to nu­ mera tio in connection with dowry. Thus in a rescript of Severus and Antoninus we read : Do tem numeratio, non scrip tura do lalis ins lrij­ menta facit. For the Scripturae praeconii, cf; Alvaro D' ORs, Ep,i­ grafia Juridica d� la Espa:i a Romana, Madrid 1953, p. 88. (5) This is how Selden translates Ke tubah in his Uxor Hebraii'f.l. (6) Cf. YEB. V I I. 1 . Similar provisions are found in the Hammu­ rabi Code, cf. KOHLER and PEISER, Aus dem Baby lonischen Rech ls­ leben ; for the Greek law cf. BocKH, Staalshaushallung der A thener, II. 50. For Roman law, cf. GLiicK, Pa.ndekten. vol. 25 (1 824) p. 1061 1 8.

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the settlement made by the groom upon the bride, it some­ times signifies the dowry, as for example in Ketubot XI. 1 . Her heirs, namely those who inherit her Ketubah, are obliged to defray the expenses of her funeral. Similarly, in a baraita in Ket. 47b it is stated specifically that the husband must attend to the funeral expenses of his wife in lieu of the fact that he inhrits her Ketubah, i. e. her dowry (1). In Roman Law, in classical times, it was customary that the forma­ tion of a marriage was attested by a writ known as Tabulae nuptiales (2) . Since · the constitution of the dowry was one of its most important elements, this writ came to be known also as the Tabulae dotales, or the instrumentum dotale. While the dowry originally given to the bride by her parents was sometimes represented as a return gift to the husband, directly or indirectly benefiting him, (3) it also served a number of other purposes. It brought the members of the two families into closer contact t') with each other, it tended to cement the union of the two parties, (5) it con­ tributed to the expenses of the j oint household, ( 6) since the husband enj oyed the usufruct (7) of the property, it (1 ) For other sources where Kelubah signifies dowry, cf. B. M. 1 04b, Baba Batra X, 7 Magid Mishneh to !shut 16. 1 . According· to R. Solomon ibn Adret, (Nove llae to Yeh 87b) the term Kelubah in M. Yeb X. 1 includes also the dowry. Hence, the woman who remarried upon the testimony of one witness that her husband was dead and he subsequently reappeared, must divorce both husbands, and forfeits her entire marriage settlement including her dowry. However, a woman who committed adultery, did not forfeit that part of the dowry that was still in existence at the time of the c,rime cf. Ket. 1 00b, and Maimonides , ]shut 24. 6. 1 0. (2) CoRNIL, Droit Romain , Bruxelles 1 921 , p. 586, and WEISS, Institu tionen des romischen Rechts, p. 464 note 59. For pac ta dotalia, cf. CZYHLARZ, [. c. p. 492 ff. (3) WESTERMARCK, History of Human Marriage, I I. 423. _(4) Ke t. 56a. (5) Ket. 47b, 1 02b. (6) Ket. 4. 6. cf. PAULUS D. 23. 3. 56. 1 ]bi dos esse debet, ubi onera matrimon ia sunt and ALBERTARIO, Studi di Diritto Romano, I 1 933, pp. 295-31 6, and JoRs-KUNKEL-WENGER, l. c., p. 284, note 2. (7) DUMONT, Les Revenus de la Dot en Droit romain, in R.H.D., 1 943, p. 1 ff.

DOWRY IN JEWISH AND ROMAN LAW

355

provided a settlement (1) for the wife in case of dissolution of marriage, and last but not least it was often a means of purchasing a husband (2). The institution of the dowry sometimes brought evil in its train, · for human nature being what it is, abuse of the dowry was inevit ableand we find the rabbis reprimanding and warning the person who marries a woman for the sake of money that he will beget undesirable offspring (3) . Jose­ phus (4) also observed that we are commanded, in taking a wife, not to be influenced by the dowry yaµeiv 6e ,i:e,1evei µ� 1t(!Otul 1t(!O, with regard to the custom of bringing the scroll of the- law to the Exilarch. 43 Cf. Kaser, " Mores Maiorum und Gewohnheitsrecht, " in ZSS, , 59, pp. 52 ff., Schwind, Romisches Recht, pp. 23-25, Levy, Die romische Kapital­ strafe, p. 28, and Schonbauer, Die Res Gestae Divi A ugusti, Vienna, 1 946, p. 14, note 5. Cicero (De Domo Sua, 1 7.45) says that the popular courts established by our ancestors (iudicia populi a maioribus constituta) were regulated among other things, to prevent personal _ penalties being inflicted conjointly wit.h financial penatlies, (ut ne poena capitis cum pecunia con­ iungatur) . This is analogous to the Talmudic rule that one is not flogged and required to pay compensation for one and the same crime i1p1? u•t-ti C?IVIJ1 (Ket. 32a) . Azulai points out that this rule does not apply to heavenly punishments, cf. C'l'lJ nm.1 , Leghorn, 1 789, f. 39d. Cicero notes in Part. Orat. 37 that the ancestral customs constitute one of the four sources of Law. Sed propria legis et ea quae scripta sunt et ea quae sine literis aut gentium iure aut maiorum more retinentur. 4ia

,ro

CONCERNING DIVORCE IN · JEWISH AND ROMAN LAW

3 87

Definitions are not common in early law, but in the course of time, the j urist began to feel the need for them. Thus the Roman j urist Gaius delimits44 divorce in the following manner : The word divorce is derived either from diversity of opinion , or because those who dissolve their marriage go different ways. Divo.rtium autem vel a diversitate mentium dictum est vel quia in diversas · partes eunt, qui distrahunt matrimonium. I n Jewish s�urces we do not discover a definition of divorce , but if we may regard the crystallization of a concept into a pithy phrase or sentence, as a definition , it may be well to invoke a sober reflection of Ben Sira 2 5 . 26. If she go not as thou wouldest 4S (literally .according to thy hand) 4 6 cut her off from thy flesh . We may legitimately detect an attempt at definition in Maimonides' statement 47 that the essential clauses of the writ 44 D. 24.2. 1 . 4s The Greek text reads, .El µ:fJ 1ropEvTcu Ka.Ta XELpa. uou o.1ro TWP ua.pKwv a1roTEJJ,E a.irr.rJP, whereas the Latin version has the following : Sin non ambu­

laverit ad manum tuam confudet te in conspectu inimicorum. 46

Cf. the English phrase to walk hand in. hand. I n Moslem law, the term

Talak signifying divorce denotes originally the loosing of the camel from its tether or bond. I n Fath al-Qarib, ed. Van den Berg, Leyden 1894, p. 482 , Talak

as a legal term is defined

C..l(�\ � �

� I a term for the dissoluti�n of the bonds of marriage. For the term Vinculum Matrimonii, cf. A. Esmein, Le Mariage en Droit Canonique, vol . I, Paris 1929, p. 68. Hence the phrase came into English literature. Shakespeare, who uses the term bond of mar­ riage was already preceded by Huloet in 1 552. Note that Blackstone speaks of total divorce a vinculo matrimonii in contrast to a partial one. ( Commen­ taries on the Laws of England, London, 1 825, 1 .439.) Prof. Stephan Kuttner informs me "that the term 'vinculum matrimonii ' is used by Gratian in the Decretum, e. g. in the rubric of c.x;xxII q. 7 c. 1, and is common among the later glossators of canon law, especially in working out the distinction between the separation from bed and board and divorce proper. The termino­ logy remains fl uctuating throughout th e Middle Ages, as authors quoted by Freisen, Geschichte des canonischen Eherechts ; Fahrner, Geschichte der Ehescheidung and others show. There exis ' s to my knowledge no specific study on the terminology (which would be very desirable) . Quite possibly the term in question might be older than the twelfth century. But also the fairly recent book by Portman ( Wesen und Unauftoslichkeit der Ehe . . . bis zum 1 2 . Jahrhundert, 1938) did not go into this. " 47 Hilkot Gerushin 1 . 1 .

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of divorce are that the husband is dismissing his wife from his domicile and is terminating the rights he acquired over her (1l'lP� ni•om nwilw :in:m l'lV n•n•w) . 4 8 In other words,49 divorce puts an end to the relationship of marriage which was inaugurated by a symbolical form of acquisition l'lP namely betrothal, which is accompanied by the formula ,, i1'1li' MN •in (Kid . 6a) or its equivalent, and the deductio in mariti domum, 49 a which is expressed by the recurring phrase inwN nN Ol1,n. The Scriptural name for a bill of divorce49b n,n•,, i!>o embodies in a sense a definition of divorce. For it signifies the severance of relations between husband and wife. The term also preserves some vestige of the notion that in early times some symbolical severance accompanied the dissolution of marriage. As -the nuptials were celebrated by a symbolical act such as the spreading of a garments� (n'?V in•?to tvi•!>w 11•:,) so were they terminated by some symbolical act,5 1 perhaps by the rending of a garment in twain. Driver and Miles call attention5 2 to a text in Old Assyrian 48

Cf. 2 Chron. 1 5 . 16, ni•::u1' ni•on. These two points Maimonides derived from Deut. 24 : 1 . He shall send her from his house and she shall marry another man. The first point nivili is explained in Hilkot Gerushin 1.3-5 but the second U'lp1' ni•o;:,, is not elab­ orated any further. 49a Cf. Kaser, Jura, I. 1950, p. 60 note 5 1 . ◄ Pb This term is rarely used in the Talmud, cf. Shabbat 56a and Sanhedrin 1 1a. · so Cf. Boaz Cohen, "Betrothal in Jewish and Roman Law," in Proc. Am. Ac. Jew. Res., XVI I I , 1 949, p. 1 2 1 . s1 O n Legal Symbolism, cf. Sittl, Die Gebarden der Griechen und Romer, Leipzig 1890, pp. 1 29-147. I n ancient law, formalism played a huge role, in addition to the references given in the Proceedings, XVI I I , p. 94, note 145, cf. the pertinent remarks of G. May, Elements de Droit Romain, 1927, pp. 19-2 2 , Buckland, " Ritual Acts and Words, " in Festschrift Koschaker, I , 1 6-26, K. Polenske, Einfuhrung in die Geschichte des romischen Privatrechts, I , 33 ff., and M . Kaser, Das altromische Jus, 1949, pp. 301 ff. For the absence of formalism in Greek law, cf. Beauchet, Histoire du Droit Prive de la Republique Athenienne, IV.5. s2 The Assyrian Laws, p. 268, note 1 , cf. Gadd, Revue d'Assyriologie, vol. 23, p. 1 1 1 . The common word denoting divorce in Babylonian is ezibum and in Assyrian it is ezabu, cf. Driver and Miles, Assyrian Laws, p. 2 10, note 10, and A. van Praag, Droit Matrimonial Assyro-Babylonien, J>, 200. Traces of this 4P

CONCERNING DIVORCE IN JEWISH AND ROMAN LAW

389

law, that the - husband says on divorcing his wife : I have cut off the fringe of her garment (Bab. zizziktasa abtalaq.) . Grimm 53 refers to an old Germanic custom preserved in the Song of Axel and Valborg that the parties to the divorce seize a linen cloth , which is torn in two so that each retains a part. This seems to be an ecclesiastical custom. According to another source, a part of the belt or apron of the wife is cut at the time of divorce. Among the Karachis of Assam, for instance, man and wife appear before the village elders, state their case, and con­ clude by tearing a betel-leaf into two pieces, a symbolic act indicating that, as the sundered leaf can never reunite, so their own married life is severed for ever. 5 4 From the fact that the Rabbis so strenuously insisted that no cutting of the document take place between the writing and delivery of the Get, it would appear that they obj ected to any kind of cutting lest it be interpreted as symbolical and be con­ fused with some pagan custom. Thus the Talmud 55 asks if one writes a divorce on the horn of a cow, why not cut off the horn and give it to the wife. To which the rabbis reply i1? 1m, :11,:,i m•m, it�'�P it::i•n:, -,o,ncw it? N�' m•m, n::i,n:, N?N "loinc ,c. 6 5 R. Judah insisted that the Get must be written and signed on something not attached to the ground ?Oi!> n,,n, •, w,,n::i ,nc•nn, ,n::i,n:, Nitnw, lest it required cutting. R . Jehudai Gaons1 objected to the cutting off of the margins of a Get after it had been written. The primary purpose of marriage, as conceived by the ancients, was the perpetuation of the species. 57a Indeed, the very first of the 6 1 3 commandments of Scripture is i i!> Be fruitful and 8 5 multiply. Similarly, the Romans say the object of taking a wife

w�1t,1

,v

,::i.,,

term in the sense of divorce are found in Scripture, cf. M::mv l"!ltJN in Isa. 54.6 and 60. 15, cf. also Git. 32b, ::l'lll' N� , • • m �l, and Git. 65b, 'N,_, M::lHll. u Deutsche Rechtsaltertumer, 4th ed. I , 625-627. s 4 Westermarck, History of Human Marriage, 5th ed. I l l , 300. ss Git. 2 1 a-b. · s6 M. Git. II.4. s1 Cf. Lewin, Otsar ha-Geonim to Gittin, I , p. 40. s 1a Cf. C. W. Westrup, Introduction to Early Roman Law, I, 1944, pp. 126-127, 1 3 1 s8 Cf. Yeb. VI.6. N o man may abstain from keeping the law b e "fruitful

390

JEWISH AND ROMAN · LAW

is liberum quaerundum .causa59 or to use the customary phrase · in Athenian marriage contracts60 1ralowv E7r' apbr4? "(Vr,O'lw v . Since marriage was contracted only t o continue the family, it seer:ned j ust that it should be broken if the wife were sterile. Thus the Hammurabi Code § 1 3 8 provided that if a man has divorced his wife , who has not • born him children , he shall pay over to her as much money as was given for her bride-price and the marriage-portion which she brought from her father's home. 61 In the recently discovered laws of Eshnuna , which are older than the Code of Hammurabi , (in article 59) there is a rule that if a· man divorces his wife who has childf'en , the man is expelled from his house and loses his property, but he may live with the second wife he has chosen instead of the one he has divorced . I t is quite obvious that the law disapproves of divorcing a wife with children . But the · sanctions which it· provides lead neces-· sari ly to the dissolution of the marriage. 62 and multiply" (Gen. 1 .28). unless he has already children (c•l:i). Th� later authorides differ as to the definition of children (c•l:i) . The school of Shammai held that it signifies two son·s ; whereas the school of Hillel said it meant a son �nd a· daughter, cf. also Git, 57a, Semag, Positive Precept 49, ed. Kopys, f. 26b. Gellius, (Noc�r;s Atticae I I . 13. 1 ) informs us that the early .writers used liberi in the ,plural number even if a single son or daughter was meant, cf. also Gen; 46.23 c;rv,n 1; 'l:11 . 59 Gellius; Noctes Atticae, IV.3, cf. Wolff, Tijdschrift voor Rechtsgeschiedenis, XX. 1952, p. 2 note 3 and p. 5, note 1 1 . 6° Cf, Fustel de Coulanges, The Ancient City, 1 9 1 6, p. 65, note 1 . Philo put in the mouth of Joseph the following tp.ought; "We children of the Hebrews. follow laws and customs which are especially our own . . . The end we seek in wedlock is not pleasure, but the begetting of lawful children ·&.XXa. -yv11ulwv 1ralowv l ,� i!IVVIV JP:> (Git. 43b) as was 49

not.iced by B uchler. REJ. 48 ( 1904) 1 35-1 36. 5 1 For Palab,u as a technical term i n Assyrian Babylonian documents dealing with pledges, Koschaker, Uber einige Griecliische Urkunden. p. 1 2 , 78-79. and San Nicolo, Oriental-istische Lt'.teratur:eitun.g, 1 93 1 , p. 1 0 1 6 . si Arakin X.3 . 53 Cf. Baraita, Arakin 3 1 a . The view that the case of the sale of a home in a wal led city could involve direct usury is seemingly in conflict with the generall y accepted amoraic conception that usury prohibited by scripture was l imited merely to moneylending proper ill�ll 7,, and not · i.:>o 7 ,,, cf. B. M . 60b, 6 1 b . Accord ing to a view attributed to R . Tam the passage is to be inter­ preted as p:l'ii iliiol n•:::i•i cf. Tosafot B M . 64b. s. v. N,i and Arakin 3 1a !-. v. N'Jnil1 .

cf.

442

JEWISH AND ROMAN LAW

with the creditor that it may be resold only to the former at a specified sum which would yield a profit to the creditor. If the field were to be resold at its actual value, the agreement was c,:m�, il�inrv:, ,, iot-t, ;,,rv ,, 1:,rvr., n,:i ,, prvr., valid5 4 ci:,r.,n ,mo c'nw:i ,,oN ,,,;, c,o,:i ,, t-t?N .

tot,

R. J udah took a more advanced view with regard t o a n anti­ chretic loan on land , for he maintained that a creditor may enjoy the usufruct of a mortgaged field if a conditional convey­ ance of property is made that it become al;:>solute unless it is redeemed before the expiration of three years55 i1WU i1'i1W ' ii1 ',:,,� np,,;,rv 1or:i 9t-t ,o� i11iil' • , . . . i:,o iil,w ,, ;,wv, illO ,,,:in:::i ,mo mi'£l . Since this antichresis was not for the purpose of amortizing the principal , the profits were nothing less than interest. The view of R. J udah presupposes the ruling in the M ishnah 5 6 which permits an agreement whereby a pledge becomes the- prop­ erty of the creditor if the debtor did not redeem it at maturity , for example at the expiration of three years57 , , ioNi m,w ?3) ,m,;, ,,,rv N'i1 '1i1 ,,w N'i1 ' iil C'ltv w,rv 1t-t:,o ,, 1nu i1nN 'tot CN. This M ishnaic law is identical with the Lex Commissoria5 8 which was abolished by Constantine in 326 because of its "asperitas" (Code 8.34.3) and was re-introduced in much modified form by J ustinian (Code 8 . 33 . 3 ) However, R. Judah went one step further, and maintained that if this agreement for foreclosure was made

,v,

�,:i

54 B. M. 65b. Tosafot (I . c. s. v. 1'i1'rv:, ', ) distingu ish between a sale with a contract for repurchase, and a classical mortgage (1:m":>l �m:>rvlJ) . With respect tp the latter only, the creditor or his survivors may redeem the prop­ erty. This is also the rule in English law. 55 B . M. 63a and paral lels . 5 6 M. B . M . V.3 . 57 For the rule concerning the redemption of a pledge within 3 years, cf. D. 1 8 . 1 . 8 1 and on this passage, cf. Rabe l , ZSS. 1907 p . 363 . ss Cf. J . C . Naber, De Lege Commissoria i n Mnemosyne 32, 1 904 p . 8 1 et seq . Arangio-Ruiz, Istituzioni di Diritto Romano, 1947 p. 265, and Wieacker, Lex Commissoria, Freiburg, 1 932. Cf. al so D. 1 8.3.5 and Berger, Die Straf­ klauseln in den Papyrusurkunden p. 1 5 9 .

ANTICHRESiS IN J EWISH AND ROMAN LAW

443

in the form of a venditio condicionalis s9 (i::,o ii1,rv i1t0V ) 60 instead of a direct pledge (i1,rv ',y ii1,,i1) then the creditor was entitled to keep the fruits he enj oyed during the period of the mortgage , if the debt were redeemed at maturity , although such incom� was tantamount to usury .

This startling opinion of R. J udah stirred the amoraim to find a preceden t and a j usti fication for it. Thus R. Yohanan 6r and two other amoraim observed that R. J udah deduced this prin­ cipl e from the generall y accepted rul ing concerning redemption of houses in a walled city i1,m, ·, ,o, i1oin ' 13' 'n:io .

I n the ·Babl i , the opposite opinion is attributed to R. J ohanan , namely that 1\1 . Arakin V I . 3 actually represents the view of R . J udah , without stating explicitly that the underlying principle is ,mo n':Ji:l ,nt-t ,� although it is presupposed . 62 However, the Babylonian Amoraim Samuel 63 and Abaye did

s9 However, in Roman Law, in the absence of a special agreement to the contrary, if a pledge were not paid at a certain time, the creditor could hold possession of the property as a purchaser, and must estimate the pledge at its just price D. 20. 1 . 1 6.9. Weiss, Pfandrer.htliche Untersuchungen p . 50 note 3 . Buckland (Text-Book cm Roman La:w p. 477 note 4 ) says that the words iusto . . . . aestirnandmn are interpolate r,•:::1,:::1 ,n� ,� according to Bibl ical Law. 66 C. IV.32 . 1 7 .

ANTICHRESIS IN JEWISH AND ROMAN LAW

445

law did not dull their sense of the instant need to maintain an adequate system of credit (l'i,, 'l!l:J n?i ?WlM N?to 'i:, B. M . 68a) which was put in j eopardy by the stringent laws against usury. Neither: were they in any mood to shed any of the existing rules. Instead they eagerly seized upon a principle formulated by the · parestinian amora , R. Eleazar, namely, that Biblical usury could be claimed back by the debtor through j udicial proceed­ ings , but no action was available in the case of rabbinical usury ,61 l'l'�i:::i i'TN�,, m'N n,:::i,, p:iN l'l"i::l iTN�,, i'T�i�p n,:i,, . The use of R. Eleazar's maxim , as a guide for practice constituted in itself a minor revolution in law., For the barring of an action in this wide field of law deprived the debtor of protection and eased the tension of the creditor who was chafing under the strict rules against usury. As Celsus68 elegantly observed : An action is . nothing else than the right to try to obtain through j udical proceedings what is one's due. Nihil aliud est actio quam ius

quod sibi debeatur, iudicio persequendi.

Now the rabbis were well aware of the fact that antichresi s involving usury was practiced by the general populace in Baby­ lonia. Rabina thought it important enough to note the basic difference between the Jewish and Persian forms. 69 knl:,torJ ,,m n,',', m,oo 1' 1'rno l'N U'l'i.Ji ;n',o', Mi ?7J l'k'�,o CiT'l' i::li kn":,J k?::i . According to their law, (i. e. the Persian) the court will render j udgm�nt in favor of a creditor against the debtor in case of an an t:ichretic loan if the latter collected the rent of the mortgaged property after the loan was contracted ; although no provision for the reduction of the debt was made, since the profits could be applied to the amortization of the inierest. In our Law (i. e. Jewish Law) in case of an antichretic loan without a stipulation for the reduction of the debt, the court will not afford relief to the debtor who wishes to recover the profits enjoyed by the creditor as it is only indirect usury. 61 The view of R. Johanan l 'l""l:l i!Nii• i"ll'N '7.)l nn:cp n•:li ,, •!)N was rejected as being too radical , and too big a step in the abolition of the enforcement of t he laws against usury, B . M . 6 1 b . 6 8 D. 44 .7. 5 1 . for the literature. o n this passage , cf. Wenger, Institutes of the Roman Law of Procedure, 1 940 p. 1 5 notes 23-24. 69 B. M. 62a-b.

446

J EWISH AND ROMAN LAW

An ancient law-book which has preserved some curious legal usages current in the Orient in the fifth and sixth centuries reports the following practice7 0 " If a man pledges a piece of land to his fellow on the cond ition that he keep the usufruct in lieu of usury the con tract is valid NJ:>WO �yit-t �1::lJ? N1::1J pWOl lN 1 1 ,,,w N!JO::>, Nn'::11 a:i,n NJ!JTiO :l OJ Ny iN, Nn,,y, 1mm':l ,,m Nii1ni NJ!Jr,0� .12 Thus the logic and the swirl of e vents compelled the rabbi s t o reckon with the fermen t and turmoil that wou ld result from a vigorous execution of the law , and its effect upon the public that clamored for some kind of an escape from the vexatious restriction of the law of usury. Consequently, it need occasion us no surprise to find such distinguished amoraim as Rabbah , Raba, Rabina, and R. Ashi, surely j oined in maintaining a laissez-faire attitude73 toward antichresis, provided it en tailed only indirect usury7 4 (n':ii p:it-t) . These a moraim differed amon g themselves primarily on the question as to what con stitutes indirect usury. The amoraic views on this theme precipitated wide divergen cies of opinion among the early legal commen tators , who propounded no less than five principal theories. 75 This is due to the brevity and ambiguity of the amoraic dicta on this very complicated legal phenomenon . Nevertheless we shall endeavor to express succinctly the historical phase an d process aR i t appears to us.

,,,rv

7° Syria n-Roman Law-Book Lex. 99 . 7 1 For as a technical term in Hebrew docu ments, cf. B . B . 1 60b and Yer. Git. IX.50c ,,,:11 C"i' cf. also L . Fischer, Die Urkunden im Talmud Berlin 1 9 1 2 , p. 27 note 3 . 12 In Aramaic ;,,�,, i s �.em r, cf. Targ. Isa 24.2 whereas Targ. t o Prov. 22. 7 has the Syriac form �l.!ll10 and similarly, Sheeltot. Behar no. 1 14. 73 Maimonides, struck by the fact that the amoraim were debating in detail the · antichresis they disapproved of, remarks as follows : ,r mi:,rvr.,w .!l'VN N�lnlV 'IJ , ::, ,,, 1N 'll' 1N mvra::i :,r ;-r• ;-r•tv ,w£>N 1l1N'::IW l/J:, N'i1 !'l':11 p:1N1 N';"T i1110� li1l0il inN r:i , ,i1 !'l':l, p:itt, ' 'Nl;-r i1l'io i1!'11N:l 1:irvr.,1 , Malveh we-Loweh VI l . 5 . Cf. also the statement o f Alfasi ,:iy•,::i N� N ll'H 1!'1'i1' i1�1l ,,o,n:i ;-rNintv ;-r r., ? :i N ? ;,,•nn::,, �:i� quoted b y Bezalel Ashkenazi to B . M . 67a. 74 Maimonides d ivides antichresis into three kinds , one which involves direct usury, the second , indirect usury, and the third is legitimate . 1s Cf. Abraham de Boton mwo en, to Malveh we-Loweh V l .3, Tur, Yoreh Deah 1 72 , Lampron ti, Pahad Yitzhak s. v. �m:,10 0.

,•,rv

ANTICHRESIS IN J EWISH AND ROM AN LAW

44 7

Rabbah was of the following opi nion . I f a debtor pledged his field to a--creditor without any express agreement (;,,', yp N?,) 7 6 the usufruct col lected by the cred itor was con sidered indirect usury. Hence the · debtor could not sue for their return when the debt was. liq uidated . For Rabbah considered an an tichretic loan like a sale with a contract to repu rchase , in which. case the usufruct consumed by the buyer was consid ered indirect usury. Raba77 had some misgivings over Rabbah 's opinion because he ventured too far. H ence Raba ruled as follows NinN:::i Nm:noo NiT iT'J'O P'PDO N? 'D� ',:,N ;,•', p'p',co 'fH ,,v,w ',:,N 'p? oo, . If an an ti­ chretic loan was made on a field , in a locality, where it was customary for the debtor to retain the right of redemption at any time, the court would order, at the petition of the debtor, the creditor to return the pledged estate , when the income he received from it , equaled the principal of the debt. However, if the debtor , through want of due diligence , failed to institute proceedings for the return of the property, until after the credi tor had consumed fruits in excess of the debt, the court will withhold relief for the su�pl us. This is different from the first case where the debtor was vigi lan t as Rashi says 1n'JO U'N1 N1i1 r,,r i1T ?:IN 1 ip ,,:, N?N ,,:iN? . This conforms wel l with an old English legal maxim . Vigilantibus et non dormientibus jura subveniunt. Raba excepted the orphans from the application of the rule of Iaches. 77a R . Ashi discerned a serious i n consistency in Raba's view. H e maintained that even if t h e debtor sued for the return of the property as soon as the revenue from the land equalled the debt , he was not en titled to the property , until he actually payed the debt , 7 8 for the creditor did not in the fi rst place take the profits as a set-off to the debt (1iviD n,,n:::i) . Rashi remarks on this passage, en c, t-t ? N l'l ' ::l i cw, l'l,,,!> ?l:,N? i1'? yp N? ,,,. Maimonides quotes a decision of his teachers which seems to go much beyond even the l iberal view of Rabbah ; namely, even if one mortgaged a field with the express condition that the creditor take the usufruct withou t setting it off against the debt, it is merely indirect usury. (m,, n,l;,o VI . 7) 1 1 B. M. 67a. 77a. For a special provision for orphans in antichretic loans in the Syrian Roman Law, cf. Mani'g k , I . c. p. 72 ff. 7 8 Cf. the statement of Marcianus. I f a creditor has paid the money, he may make use of the action on the pledge, to rec-over the property given in 16

, .,N,

448

JEWISH AND ROMAN LAW

Rabina 79 makes it quite plain that Nn":JJ N?:i Nm:,wr., , i . e. an antichretic loan on land , with no stipulation for the creditor to give annual nominal contribution of the usufruct to the debtor , involves no more than indirect usury, and hence the debtor cannot sue for their return . However, a decision reported by R. Papi, that Rabina ·required the return of the usufruct in the case of a conditional sale with a contract to repurchase ,80 seems to clash with his general theory , 8 x P'.ElN1 :i,ron, Ni:iiy NJ'.::l'i · i':lV Nliil i:i il:ii:, N?i ,,,.e:, . I n the cases j ust enumerated , the rabbis tolerated the practice , and would not enforce the law in favor of the debtor. , H owever, for him who wished to conduct himself with i m movable scruple , Raba ruled a s follows : 82 t-t?N 1;,,:,,J tot? 'P?OO t-t?i t-tinN::i t-tm:,rvr., 'Nil Nn":,J:i . An an tichretic loan on land was perfectly legitimate in those localities where there was a right to redeem the loan at any time, if there was a token ann ual reduction of the debt. Raba's decision may be termed a signal triumph of equity over legal doctrine. As a direct comment upon his statemen t we have the penetrating observation ·of R . Papa and R. Huna b. R. J oshua. 83 According to them, a mortgage on land with the righ t of redem­ tion had only the significance of a chattle mortgage ('?�? �o 1m'J NO?y::i ) to use a phrase of Rashi , since there was only transfer of possession . H owever, in the case where the right of redemption is withheld for a specified ti me , 'P?Or.> N?i Nint-t:t the estate a11rl xp r,il n y w::i, J P.:, 11'::li '1il J 1}1 i.E>il n y w::i, l" Y t-11 •iw il1'il , and the elemen t of u n certaint y must be the conse quence of an act of the credi tor or debtor , and n ot becau se of someth ing beyond their coQ trol Nil' 1-1,w ,n� ,� m w y , m, ,� il1?0 , 1 ::i w•w ,:i, N?N 11 1 ::i,::i inN il :i•wn N? i ,,,,, rv•, n•:i , . Stras h u n (Arakin 3 1 a ) raises the q uest ion that an ord inary case of l oan shou ld also fal l under the ca tegory of 11'::li::l ,nN ,� si nce it w i l l be released h y the Sabbatical year , if it is not pai d before. 10 6 C f. above note 66. 10 1 C . 4.24. 1 . 1 8 P « "{ W "f � = actio is derived from a. ')' ELP to lead before a court , cf. Wenger, Institutes of the Ro man Law of Proce.dute , p . 12 note 4 , for «"{op6. mean i n g , a court of j ustice ; cf. Boaz Cohen , Some Remarks on the Law of Persons in Jewish and Roman Jurisprudence p . 3 7 note 1 53 . 10

456

JEWISH AND ROMAN LAW

the public was forced to fall back on its own resources to discover some device to circumvent the ironclad law against usury. I n Babylonia, i n the Amoraic era , three principal types o f antichresis became prevalent , which met with the .avowed disapproval of the rabbis , but not with their determined resistance, since they branded these practices merely . as · indirect usury, for which there was no remedy · in the halls of the law. Thus Rabbah , disapproved of the practice whereby the creditor tacitly enjoyed the fruits of the land mortgaged to him. This reminds one of the tacit antichresis in Roman law alluded to by Paulus in D igest 20. 2 . 8 cited' above. 1 0 9 .R aba did not allow an action where the creditor had enj oyed revenues from the mortgage beyond the principal , although the debtor had the right of redemption i1')'0 P'P!>O N, '!>ta ?:lN . • . ' p,co, NinN:l Nm:,wo Ni1 , R abina con­ sidered the enjoyment of such profits by the creditor as indirect usury only if the latter failed to give to the debtor a nominal s.um each year. no (Nn" .::n_ N?:l Nm:,wo) . The two forms of antichresis approved of as wholly legitimate · in Babylo.n ia were the antichretic loan known as Nn":,J:l Nm:,ruo and the Mashkanta di Sura.m Both forms- of antichresis consti­ tuted in actuality_ evasions of usury, under the guise of a fictitious sale. The acceptance by the amoraim of these patent subter­ fuges as within the letter of the law, speaks eloquently of the profound compulsion to which they were subjected , in order to secure a stable economy with the free flow of credit. As a mere literary curiosity or coincidence, we wish to under­ score the fact that the term avTtXP'l'/CTLS occurs only four times in all of the ancient legal writings. Once 'in the Greco-Egyptian papyri of the second century , twice by M arcia.nus in the Digest , aJ;J.d once in the Palestinian ·Talmud . Instances of l ater use of the term all go back to the Digest. 1o9 C f. al?ove note 37. ,no Tosafot (Arakin 3 1 a s. v. N'ln:''n ) explains why th is kind of antichresis is not put in the category of direct usury. m The Talmud records several actua,I cases of antichretic loans on l ands, .cf. B . M . · 1 09b Ket 95b, B . . M . 1 1 0a B . B . 32b, and 40b . The Mortgages lasted from between three to ten years . From B. M . l i0a, it is clear that Rabina and_ R. Ash i were familiar with the antich resis of Sura, cf. above note 83 .

POSSESSION IN J EWISH LAW

The purpose of this essay is to give an aper!;U of the doctrine of possession in the Biblical and Tannaitic eras. The treatment of this broad topic will necessarily be in the nature of a general survey rather than a detailed exposition. Perry, by way of introduction to his translation of Savigny's Treatise on Possession, quotes the following from Bentham : "What is it to possess? This appears a very simple question :­ there is none more difficult of resolution, and it is in vain that its solution is sought for in books of law : the difficulty has not even been perceived. It is not, however, a vain speculation of meta­ physics. Everything which is most precious to a man may depend upon this question ; his property, his liberty, his honor, and even his life. Indeed in defense of my possession, I may lawfully . strike, wound, and even kill if necessary. But was the thing in my possession? . . . To prevent perpetual equivocation it is necessary to distinguish between physical and legal possession. We here refer to the former : it does not suppose any law, it existed before there were any laws . . . Legal possession is altogether the work of the law. It is the possession of the right over a thing or over the services of man.'' As soon as the institution of private property develops in a society some sort of notion concerning possession must of neces­ sity arise. 2 We have no clear record that in early historical times in Palestine there existed a system of social organization where goods were held in �ommon. Among some natives it seems that the ·land was considered tribal property but was held in severalty Bloch, Das Mosaisch- Talmudische Besitzrecht, Budapest 1897, has ·no merit at all from a scientific standpoint. Other works on this subject are cited in Eisenstadt's "En Mishpat," Jerusalem 193 1 , p. 283-289. 2 Vinogradoff, Roman Law in Mediaeval Europe, 1909, pp. 74-75. 1

457

458

JEWISH AND ROMAN LAW

by the members of the clan, and cotiid be alienated only by the common consent of the tribal assembly. 3 Thus when Abraham, a foreigner, wanted to purchase a burial plot4 for his wife Sarah, he had to appear before the tribal council (y,t-til 037) at the head of whom was Ep�ro�, in order to obtain a parcel of land. Among the Philistines we find that the chieftain himself, since he was the owner of the land , could alienate- property. In Gen. 20. 15, we read that Abimelech, King of the Philistines, offered Abraham to settle anywhere in his country. 'lBehold, my land. is before thee, dwell where it pleaseth thee." The settlement of the Hebrews in Canaan involved for them a significant change from a pastoral life to an agricultural system. Hitherto they had been herdsmen roaming over vast wilder-nesses, and now ·they gradually commenced to dwell in towns and . vil­ lages, to possess land and cultivate the soil. It was at this time that we may expect that the ancient Hebrew ideas concerning possession and ownership of property began to crystallize into shape. Perhaps we could best illustrate wh at these views were by a brief discussion of the various terms used to denote the acquisi­ tion of property. The oldest expression seems to be the verb rnNil. In the Kai rntot means to hold, to seize, and in the Niphal, to hold or seize for one's self ; hence to acquire possession;s_ · In Arabic �\ means to 3 Amram, Leading Cases of the Bible, pp. 46-47. 4 According to the view of Fustel de Coulanges quoted in Paul Guiraud, La propriete fonciere en Grece, Paris 1893 , pp. 2 ff., private ownership in land owes its origin to ancestor worship. Man's chief interest in acquiring land was for the purpose of possessing family burial grounds in order to continue the rites in honor of his departed forbears. Vinogradoff rightly objects to this hypothesis. In his Outlines of Historical Jurisprudence, Vol. I I , 1922, pp. 206-207, he �ys,· "It requires a more vivid imagination than · it1 generally possessed by scholars nowadayEJ to accept the view that men appropriated fields, not for the sake of the harvest, but because they had buried their parents in some part of the compound. A pasture and a tilled field have their own raison 'd'�tre for men in all ages. " s Cf. the Yiddish proverbial expression -,,::,. rnii:t:, ist eine grosse Tefillah, which corresponds to the Latin legal maxim Beati possidentes; concerning the latter see Pollock, First Book of Jurisprudence, London 191 8, p. 1 88. Solomon Urbino, Okel Moed, ed. Vienna 1881, p. 158 explains the term as follows ni,::ip:i prn,1:)1 c11p1'::i rmu c:iii:tmv '!>1, .

POSSESSION IN JEWISH LAW

459

seize, and is one of the terms signifying to possess. 6 Occupatio in Latin is derived from obcapio. signifying to seize, and the Greek word for property KTr]µaTa i� formed from KTaoµ,aL to get, acquire, and in Old English law, seisin denoted possession. 7 In early time� when there was a superabundance of land avail­ able having no . particular owner, one acquired rights to the property by settling upon it and cultivating it. "The notion of personal property in land , " say� Robertson-Smith, "is a thing that grows up gradually in human society, and is first applied to a man's homestead. Pasture land is common -property, but man acquires rights in the soil by building a house, or by quickening a waste place , i. e. by bringing it under cultivation. Originally, that is, private rights over land · are a mere consequence of rights over what is produced by private- labor upon the land ." 8 I n Gen. 34 the chieftain of Shechem proposed an alliance with the sons of J acob and - offered them land in their midst. "And ye shall dwell and trade ye therein and acquire possession of it . il:J i rnNtli . 9 Similarly in regard to Joseph's brethren it is said : And Israel dwelt in the land of Egypt in Goshen : il::l HMN'i and they acquired possession of it,1 ° i. e. by settling upon it, for according to a previous verse they had received this district as a- gift from Joseph. u While these two illusttatfons refer to the period before the conquest there can be no doubt that this method of acquisition . obtained after the subjugation of Canaan. I n Joshua 2 2 . 9 we are told that the two and a half tribes after having fulfilled their promise to assist their brethren to vanquish Palestine proper returned to Trans-J ordania which is. described as itvN cn rinN yiN n:::i ,rnN) , i. e. to the land that they have acql,1.ired . a s a possess{on . And again after these recalcitrant tribes had provoked· their Cf. Schmidt , Die Occupa.tio im islamischen Recht, Strasburg 1 9 10, p. 1 1 . Maitland and Pollock, History of English Law, Cambridge 1 899 , Vol. I I , p . 29-80. 8 Robertson Smith , Religion of the Semites, London 1 9 1 4 , , pp. 95-96. 9 Verse 10, cf • . Dillman 's Commentary ad. loc. · The rendering of the revised version and the Jewish translation "and get you possession therein" which goes back to lbn Ezra's explanation to Gen. 47:27, ilnnN i1::l up is incorrect, 10 Gen. 47. 2 7. n Gen 4 7. 1 1 . 6

7

460

JEWISH AND ROMAN LAW

brethren across the river by building an altar in their midst,: they . were invited to come to Palestine and acquire ownership of some land there. (Joshua 2 2 . 1 9) .

The noun MnnN was formed from the verb tnNi'T to designate property in land. The appellation mmN gradually lost its etymo­ logical meaning and was applied· to land acquired in other ways, 13 i. e. by purchase or gift, and finally denoted patrimony. Thl.1$ the daughters of Zelophehad ask simply for an minN (Num. 27.4) . 1a This change in meaning was brought about by the fact that in Palestine, land could not be alienated but had to remain in the tribe· or family. True ownership was vested only in patrimony. All land , generally speaking, that was sold, returned to its original owner in the J ubilee year. Without entering into a discussion of the institution of the Jubilee which has exercised the ingenuity·of many investigators, 1 4 attention is merely called to the fact that the difference between possession and ownership is clearly pre­ supposed in Leviticus. For we read in chapter 2 7 . 22 , "If he sanctify unto the Lord a field which he hath bought, which is not of his own field (innnN n,w) . . . In the year of the Jubilee, the field shall return unto him who owns the land. " (nnnN ,, iWN? yiNn) . According to this legal economy, a.purchaser of land was merely a possessor, who was legally bound to restore it to its real owner in the Fiftieth year. Palestine too, was proJ:I!ised to the patriarchs as an nnnN c,,v 1 s or simply as an m,nw6 for they, as strangers in the land could not pretend to ownership of Canaan in their own right.

The second term used to signify �ossession is the verb w,,. The original connotation of this word was to capture, conquer, seize by stratagem, and is undoubtedly connected with nw, , a net. To cite several examples out of many available, iv�r w,,,, nN Gen. 24. 60 ; ,, N? nu:,wrJ r,w,, Hab. 1 . 6 ; w,, 1'Nrnv

,vw

v,,rJ

cf. Sifra (ed. Weiss, 1 10a). nprn:::n ir:,lt/:::i ,c:,:::i n'lPl nnnM i!D. Verse 7, speaks of an n,m nnnM. 1 4 A recent study of this subject was published by a yo ung economist, Eli Ginzberg, in JQR N. S. XXI I , 1932, pp. 364 ff. 1 s cf. Gen. 1 7.8, and 48.4. 16 cf. Lev. 14.34 and Deut. 32.49. 12

13

POSSESSION IN JEWISH LAW

46 1

il nt-t c:,',o Jer. 49. 1 ; rit-t ,w,, c:i,n:J tot? •:, Ps. 44.4 ; rv, n,y Deut. 1 . 2 L Even the noun rv,,, meaning conqueror is employed as for example, nw,,c n:JW'I' 7', N'::lN wi•i1 ,,y in Micah 1 . 1 5 ; and Ci1'l11iW c•w,,,, in Jer. 8. 10. In contradistinction to ?nNil which implies peaceful penetration w,, refers to acquisition by wile or violence. Hence, after Naboth had been done away with by :artifice, Jezebel addressed her husband with the words ni:i) ci:, nN rv, cip (I Kings 2 1 . 1 5) . Some of the Tannaim, struck by the fact that Ahab-' s appropriation of Naboth's vineyard is represented in Hebrew by rv,, assumed that Naboth was his nephew and died without heirs, and consequently the King was his legal successor (Sanhedrin 48b) . On the other hand the Biblical translators were aware of the primitive meaning of w,, . Thus the Septuagint translated nN w,,, . by the verb KaTEKvplevuav to w,• in Num. 2 1 .24, · gain dominion over, and the Vulgate rendered it by possessa est, and Ps. 37.29 yiN ,w,, c•p•,� was rendered in the Targum bv thP words NViN l'lOM' N'P'i�. Later on w,, came to be employed for rightful and peaceful possession , and in poetic _passages it is used to indicate dwelling, cf. e. g. Ps. 37. 1 1 yiN, irv,, C'1lyi ; Isa. 34. 1 1 , ,,!)p, nNp iliwi•i ; Hosea 9.6 Cltvi" rvio•p. Finally, tv1' was further circumscribed in its meaning and merely conrtoted to inherit. In Arabic i!JJJ and in legal texts in Talmudic Hebrew 1 1 w,, is used exclusively to denote inherit. In Latin "heres" signifies heir, and already in Plautus means possessor. In Greek KA:qpbvoµos heir� is used metaphorically by Polybius as possessor of glory, much in the same way as Proverbs 3.35 has 1?Ml' 1:1•0:,n In English, Shakespeare uses inherit to copnote possession, . most likely under the influence of the English version of the Bible. En passant, it may be observed that the Peshitta translates i!:l HMNi1 in Gen. 34. 10 by en:. o�:s:o indicating thereby that the root ni' has also the meaning "to possess. " The various connota­ tions of the verb w,, reflect the diverse ways in which property was acquired in historical times. Interesting for the · meaning embodied in this term is the oft recurring · declaration in the Bible that Palestine was given to

,�,tot

,,:i:,.

1

1 Cf. the Agadic statement in Abot I :5 Ol:i'l rv,,,.

462

JEWISH AND ROM A N LAW

Israel as a inv,,, . Already· Kimhi1 8 was perplexed that Scripture speaks of Palestine as Israel's patrimony and suggests that nrv,,, in this connection means that it was given as a divine benefaction and legacy to Israel, and that they entered upon possession of the land pro herede� It is conceivable that Palestine was in later times spoken of as Israel's heritage because the Hebrews deemed themselves heirs to the patriarchs 1 9 to whom the land was divinely covenanted. On the other hand, a different notion must be pre­ supposed by the pact of Providence with Abraham where it is explicitly stated that Canaan is ceded to him nnrv,� (Gen. 15.7) , and the prophet Ezekiel quotes his contemporaries · as saying fiNi'l nN tvi"'l Ci!i::lN il'il inN (33.24) . The belief that Palestin(was bestowed upon the Hebrews as a nro,,, is of course ancient, and the concept naturally underwent a development in the flow of time. The view entertained by Jephthah (Jud. 1 1 . 24) differed materially from that held by Amos (2 . 10) . In brief, the prophetic doctrine may be formulated as follows : The world in its entirety belonged to the Deity and it was He who allotted Palestine to Israel j ust as He apportioned the land of Seir to Esau's descendants, and assigned to the Amorites and Moabites the territory they possessed (Deut. 2.6, 19) . A similar rabbinic conception is found in the l\ilidrash. 2 0 Hence w,, meant to acquire or enter into possession by virtue of a Divine grant. The notion that w,, used in reference to Palestine 18 To I Kings 2 1 . 1 5 he says itlnD en, nn•ntv '!l? it:I n:::itv•i nrv,,, llll.:> r,1-1:::i 1.:,1 cn,:::ittD mtvi' Cllt ir.,.:, Ci1? N'i1 ? Ni1t) This view is substantiated by Deut. 1 .39 and 19. 1. 1 9 One tradition has it that Palestine was promised to the Patriarchs as well as to their descendants, cf. Gen. 1 5 . 7 ; 1 7. 8 ; 28.4, 13 ; 35 . 1 2 ; 48.4, and Deut. 1 1 .9. Note also .Genesis Rabbah 49.2 (ed. Theodor-Albeck, pp. 499-500) n•:::ipn it)llt 1.:, yit-tn nN •nnl ivir, 'ltv Citi�N? itlnt) yi11tn nN •nm i:::i.:, . Another conception pre­ vailed that Palestine was cov enanted only to the descendants of the patriarchs "for "the iniquity of the Amorite is not yet full" Gen. 15. 1 6, cf. also 1 5 . 1 8, 24. 7, Ex. 32. 13, and Deut. 34.4. The rabbis too, were aware of -this variant · tradition , cf. Genesis Rabbah 41 . 7 (ed. Theodor-Albeck, p. 392) ,, •n,r.,tt 1.:> y,1-1:::i ::1101• rN 'T'i!liil 'llll.:>Ml .i!.:>inr., c•cr.,y ' r iipy •rv.:,', •nD•N n11tlit fit-tn· nN •nm 717,r';, · yit-t:::i n,.:,r Cit? 1t1p:::inr., i•tv.:>ll ,v cf. also Abodah Zarah 53b en, N'i1 i1tv1i' •i.:,r., cn•n1:::i11tc, cf. Aptowitzer, R.E.J ., 82 . 28 1 . 2° Cf Genesis Rabbah 1 .2 il?�l i1�i111::,1 c.:,', mm il�itv::, n•:::ipi1 111ti?c1 c?1l7i1 1 c.:,c. u, mm,

r,rv,,,,.

,rv

POSSESSION IN JEWISH LAW

463

did not strictly mean to inherit was known to the rabbis. For the origin of the legal rule that real estate is acquired by nprn is intimated, according to one authority, in the verse in Deut. 1 1 . 3 1 ;,:i cn:iru,, ;inn� cnw,,, which is explained as follows : ;,o:i ;,:i , w,:i cnru,, , i. e. they acquired ownership of the land by settling upon it. 21 The third term employed to signify possession is ',m and the noun ;,',m . In Arabic and in Sabean inscriptions � means to make a gift. Perhaps this was its original significance in Hebrew. It is not impossible that in Jer. 3 . 1 8 ituN yiNiT ',:s, c:,,n,:iN nN ,n,nm and other similar passages; the verb ',,mit means to bestow as a gift. Likewise in a number of passages ;,',m may mean a gift, e g. Deut. 26. 1 it:l_ n:itu,, itnru,,, ;,',rn 7', 1mJ 7'it?N ';, iwN. 22 By taking it?nl as a gift, the verse is no longer redundant. l\1ostly however, it?nl in its various conj ugations means to possess, cause to possess, to divide into possessions, and finally to inherit. I n general' it?nl seems to have become a synonym for wi, 2 3 • To sum up, in Biblical times, transfer of land generally resulted from purchase , gift or exchange. Wp.en property in land became entailed, we find land reverting to its original owner. The difference between ownership and possession is clearly perceived . For loss of possession of property does not deprive one of owner­ ship of it. Scripture requires that a pledge given as security for a loan, or objects given in custody to a bailee, or other possessions taken away by violence be returned to their rightful owner. Coming dowri to the Tannaitic period, we note a number of changes that have occurred in regard to the law of possession. Thus the Biblical enactment proscribing the alienation of property became a historical memory. On the other hand, the right to acquire property by usucapion is not alluded to in earlier Hebrew legislation. · Due to the unsettled conditions that prevailed in Judaea after 70, the Jewish j urists made a number of concessions in regard to the right of ownership of land. In general , the 21

Kiddushin 26a.

Cf. Genesis Rabbah 44 :23 (ed. Theodor-Albeck, p. 445-446 : it?l,7 7:, tt?H Oil? lnl tt?l • , , C•ll3rJl,7 nit11i, fitt ?Hit11•? Cit? ?'Mlil? ;t•:lpi1 ?Ill lnl,7,:l, 23 cf. Engestrom , Specimen critico-historicum de populis terrae Canaan devotis, Lund 1 737, Part I I , pp. 32-38, who discusses th�se three Biblical terms for possession. 22

'1

464

JEWISH ANO ROMAN LAW

doctrine of possession is more fully developed in this period as is evidenced by a more ample juridical terminology. The general- word for .property is J,:l'O::>l. The Tannaim dis­ tinguished as we are accustomed to do in modern legal systems, between .real and personal property. The former was designated by the circumlocution rn•,nN Ci'l? w•rv c•o:,l while the latter was denoted by the phrase n,•inN c:,I;, l'Ntv c•o::>l . 24 Again they differ­ entiated between goods which had an owner c•,ni•r.,:, c•o:,l (T. B . K . 1 . 1) and ownerless property ,pg:, •o:,l. 2 s It is important to recall that the term ,pDi1 embraces both res nullius, such as wild animals in the state of freedom, actually belonging to no one, and res derelictae, i. e. property which was abandoned w:ith the intention of relinquishing ownership. Possession is disengaged from ownership by the use of diver­ gent terms. Thus an ancient halakah reads nprn:i. �,,,n;, n,w , 2 6__ . i. e., a private individual acquires ownership over property he purchases by taking possession of it. The word designating ownership is n,tl), akin to the late Biblical 1i•wi. The primitive significance of the Aramaic word •tt,1i, is to have power. 21 In Arabic L, ; means to be firm. In Aramaic the term 1•onN which is employed in the sense of possession is derived from 10n meaning strong. In Latin "dominus" designates ownership, while in Russian "wladets :" to possess, can be traced to "vlast, " signify­ ing power. Besides a number of passages · in Tannaitic sources where n,rv, 28 is used to connote ownersjiip, 2 9 there are others where n,w, signifies possession. Th us in Maaser Sheni 1 . 5 , we read ,niw,:i. p•Ntv n,v�n ?V l'��n,J l'N. One may not exchange produce 6£ Maaser Sheni with money which is not in one's possession. This meaning might have insinuated itself into the word because originally the criterion for distinguishing possession .

T.

These two terms are interchangeable with vpip and 1•',�',�0. s cf. also the phrase 0•',31:i en, l'Nltl Pes. 1 18b.

24 2

26

21

Kid. 1 :6.

Lewy, Worterbuch IV, 473b asserts that in Syriac •1t1i means to seize, but I could not find any indication for this statement in the Syriac Dictionaries. 28 In the Mishnah, ownership is also expressed by the preposition i',1t1 e. g. ,,1t1 il•Mltl ,:i-, tD"1pZ) Cl"1N pH Kil. VII :5, and i',1t1 il'Nltl 1""1P0 C"TN l'N, Arakin VII :5 and T. Peah, I l l , 13. 2 , cf. B.B. VII l :7, and Pes. 6b, and T. B.M. VIIl :23.

,::1-,

POSSESSION ,IN JEWISH LAW

465

from ownership was not clearly established. rhus Joseph DuquesneJ 0 has pointed out that a similar _confusion in termi­ nology is found among the Roman lawyers. Professor Ginzberg suggested· to me that we might have before us two words ni1t11 and niwi. In Assyrian tasu signifies to seize, to take, to possess,

and

it may well be that the Hebrew n,�, meaning possession,

is

derived from the same root as the cognate word in Assyrian. However the technical term for possession in Tannaitic . juris­ prudence is nprn. Thus in the ancient Mishnah previously cited nprn::i �,,,.,., nitvi , 3 1 we are informed that chattels are ·acquired by . the purchaser when he takes possession of them. In later Tan­ nai tic parlance t�e expressions n:,'tvt.l (traditio) , i11' oo and i1i1:i.li1 are commonly employed. In the DigestJ 2 too, we read that dominiumque rerum ex naturale possessione coepisse, i. e . . owner­ ship began with . actual. possession. Not only moveable · objects but real estate and slaves were acquired by nprn. 33 I n regard to finding a lost object, the law state� that if one noticed an object upon the .road, and fell upon it, while another came and took hold of it, the latter acquired it n::i n::,r n:i. P' fMi'Ttv nr . 34 Anyone who appropriated the estate of a proselyte after his death, which was regarded as a res n�llius, became its owner. J s If an executor obligated himself to take charge of the estate of orphans he must fulfil his fiduciary relations once he has taken possession of their property. JiT:l imtl;, 1'�,:,, l'N 1'1.l,n' ,o:,l::i ip'tniltvO • • • l'O!>i,�'!JN , 36 Finally, nprn is used to denote usucapion , i. e. uninterrupted possession of land for three years upon which one has a valid claim. 37 En passant we wish to call attention to certain character­ istic peculiarities in the use of the j uridical terms n:,r and mp. As 3o Distinction de la possession et la detention en droit romain, Paris 1 898, p. 5. a• This passage is explained in T. Kid. I :9 as follows : ,ll mp M? 1:1, 1 ,nr1 ?:lM 1 p rnntt1 illltt', 33 41, 2, 1 , English translation by Zulueta, Oxford 1922, p. 47. 33 Kid. I :3, B.B. IV :9. 34 B.M. I :3. 3 S T. Peah I I :10. 3� T. B.B. VIII :12. 31 B.B. III :1.

466

JEWISH AND ROMAN LAW

a general rule it may be stated that i!Jp 3 8 is used to denote pur­ chase, and is employed also in connection with marriage which is formally an act of purchase. 3 9 • Hence we read in the Mishnah I :1 , a woman is acquired in three ways (J1'3j:>J ,1WNi14°) . Similarly we find in N�d. X :6 ,o�v, t-tiiT i1lpW iTWN CN i11.l. 41 When property is acquired in any other way, the _term il:lf is generally employed, e. g. by barter, when commodities are given and taken. withoµ.t the intervention of money. We read in M . Kid. I : 6 , i f one exchanges an object for another, as soon · as one party has taken possession of the one object (n::,r) the other party is obliged to give him the other in exchange. 42 _ It is used also in reference to finding a lm;t object, 43 dividing an inheritance, 44 seizing a res derelicta, 4 5 or receiving a gift, 46 and in cases of doubtful purchases. 47 There are, of course some exceptions, thus a Tannaitic statement reads : ,,t-to ,, . . . 'li?!>? 'li?D inW 'J1Ml ,ou°'n i1lp ioit-t. 4 8 Maimonides in the chapter i!lno, i1"::>r of his code employs n:,r merely to denote the acquisition of derelict property. So much for terminology. Although the Tannaim were not given to formulating legal principles, the latter are undoubtedly presupposed in their j uristic For the term :,n•p', , cf. T. B.M. I X :9. Cf. Westermarck, History of Human Marr-iage, Vol. I I , 5th Edition, New York 1922, pp. 354 ff. 4° For the sake of parallelism, the Mishnah says ntt•� n•lpl i1t.)::l'i1 cf. however Yeh. IV :7 1'nN c•o:,3::i n:m ,no:,.• mt 03,::m • . 4 1 It is rather unusual that in Ket. VI I I :1 the text reads: tt, i'!IUN:l :,:m ',•Nin c•o::,3:,. n::,r•. Perhaps here too :,:,r is used on account of the second .phrase. 42 i•!l•',n:,. m :l"Mnl :,r :,:,riv 1i•::, int-t:1 c,,.,, ilWlllM ',:, T. Kid. I :9 paraphrases the words inN::i C't.)"T iltVllli1 ',:, by the phrase ,t.)ll 'J''"i!• T�e words MIVllli1 ',:, intt::i C'7.)"T means "any object which he evaluated for the purpose of exchange, " cf. the statement in B.M. V :9. ,ll nn,:1n, i:,::, nrvN n,',n t,t', ioit-t ',',n il'il 1::,i c•o, uivl7nru, see also Pes. VII :3 , and Temurah V: 5. Possibly in Kid. I :6 :,:, r is employed because it is in opposition to ::l"Ml'U, 43 B. M. 1 :3, 4. ◄4 B. B . IV :9. Inherited property before it is divided is termed n•::in no•!ln ; Bek. IX, 3 . For this phrase, cf. Jer. 40. 10 and Kid. 26a. 4s T. Maaser Rishon I I I : 1 1 , cf. also M. B. K. I I I :3 ◄6 T. B.B. VI I I : 1 1 , IX:13. 4 1 B. M. VI I I :4, T. VII I :23. ◄ 8 Git. 40b, cf. T. B.B. IX:13. 38

39

,iv

POSSESSION IN JEWISH L AW

467

writings. Thus they do not define the constituent elements of possession. Yet we may infer what their doctrine was, from their statutes concerning property which was abandoned, lost, or taken by superior force: Possession involved the physical control over an object, .whereas ownership continues even after the loss of possession , for it is the legal right to possess an object which is not forfeited as long as the owner means to keep it as his own or as the Roman j urists put it, he has the animus rem sibi habendi. 4 " Consequently when one purposely abandons h is property with the intention. of losing ownership, it becomes a res derelicta. Loss of ownership of an object is brought about by being deprived of possession as well as by a cessation of the will to hold it as one's own. Similarly, the Digest 5 0 informs us . ' 'J ust as no possession can be acquired except by a physical and mental act, so none is lost unless where both acts are reversed. ' ' I n contradistinction to the res dere.Iicta which becomes the property of the first one who seizes it, there are instances where one is constrained to renounce one's · possessions and no one is permitted to claim them. According to Scripture , no leaven may be seen or found in the h