Front Page Titles (by Subject) XXI: DONATIONS AND BEQUESTS - Babylonian and Assyrian Laws, Contracts and Letters
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XXI: DONATIONS AND BEQUESTS - Rev. Claude Hermann Walter Johns, Babylonian and Assyrian Laws, Contracts and Letters 
Babylonian and Assyrian Laws, Contracts and Letters (New York: Charles Scribner’s Sons, 1904).
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DONATIONS AND BEQUESTS
Alienation of propertyAlienation of property might be complete or partial. Of complete alienation we may instance donation, sale, exchange, dedication, testament. The latter was rarely complete in Babylonia. Examples of partial alienation are loan, lease, pladge, deposit.
Importance of the fact of ownershipWe may note as a common mark of all these transactions the care taken to fix and define ownership. The transfer is “from” A to B. In early times the property is usually first stated to belong to A. Then he is often said in Assyrian times to be the bêlu of it, its full and legitimate owner. The new owner had to be satisfied that A was competent to part with it. This is often made clearer by saying, in later times, that no one else has any claim upon it. Hence arise guarantees against defeasor, redemptor, et cetera. This subject of guarantees is most interesting, though often obscure. The investigation of the varied rights which were likely to interfere with freedom of transfer is most important.
Peculiar forms of assignmentsIn certain cases we shall find a sort of hypothecation of property, as when it is assigned as security, but not given up. The possession is not free, but it is not alienated. We have also a donatio retento usufructu, which only gives a reversion of the property. Here also certain rights may be reserved against the ultimate possessor.
Another interesting point is that property may be credited to a man, and set off against other liabilities, so that he may never actually be in possession, but only nominally passing it on to others, and even, eventually, it may come back to the first owner, who may never part with it at all.Restrictions on free gifts
Undoubtedly men were at liberty in daily life to make presents one to another. But the rights of the family were so strong that for the most part all the property of the parents was jealously regarded as tied to the children, or other legal heirs. When a man died, his property was divided according to a rigid law of inheritance. When a woman left her father’s house to be married, the father gave her the share of his goods which fell to her, without waiting until his death to divide his substance. In this case she had nothing further at his death. But the property was not her husband’s, though he and she shared its use; it was entailed to her children. If she had none, it went back to her father’s house: to her brothers, if she had any, or to her father’s other heirs. Unless a man legally adopted his natural sons, they did not inherit. Hence neither man nor woman was wholly free to give. But, hedged about with consents and reservations, donations took place.
The conditions of any giftWe have a great variety of types of donation, not always easy to classify, and often obscure, in some details. The common characteristics are that deeds of gift were duly executed, sealed, and witnessed; and that the consents of the parties, whose expectations were thus diminished, or restricted, had to be obtained.
Establishment of a daughter who became a votaryA daughter might be portioned off for marriage and this involved a gift, which might be treated as a donation, but rather comes under the head of marriage-portion, in the chapter on marriage. Precisely the same portioning took place when the daughter either became a votary or was dedicated to the service of a god. Such gifts may be included here. They usually contain a list of property: sharing houses, land, slaves, jewels, money, clothes, household furniture, even pots of honey or jars of wine. As a rule, in our present state of knowledge, nothing that could pretend to be an accurate translation can be given of the items of such a gift, only a general idea of the nature of the whole. Such a gift, however, evidently set the lady up in an establishment of her own, with all she could require for maintenance and comfort for the rest of her life.
Rights in a gift made by a votaryHere these donations split up into separate classes. The recipient might have only a life interest in her gift, or it might be hers outright. The latter case could not be presumed. The heirs of her parents, “her father’s house,” would maintain their claim at her death, unless they had specially contracted to waive it. Then the clause was inserted that she might “give her sonship to whomever she pleased,” ašar eliša tâbum aplûtsa inadin.1 By “sonship” is meant “heirship.” Such cases do not seem common and are probably to be explained as due to the fact that as a votary she had no legitimate heir. It is important to note that there is no hint that, if she died without heirs, the temple would inherit.
Gifts made by a father to a daughterA modified freedom is allowed by a father who gives his daughter house, land, sheep, slaves, and the like, but limits her power of gift to her brothers. But among them she may “give it to him who loves and serves her.”2 It is assumed that one of her brothers will care for her and manage her estate and be rewarded by the reversion of it. As a rule, it is only a life interest which the recipient has.
A different sort of gift is where the donor reserves to himself a use of the property as long as he lives, or stipulates for a life allowance from it. These are usually accompanied by formal adoption. The recipient is one who has not already a claim to inherit, but undertakes the care or maintenance of the donor. Such gifts are best classed under adoption, even where the fact of adoption is not stated. When a parent makes an arrangement of this kind with a son or daughter, these were possibly adopted by a previous act. At any rate, it seems likely that such a child was either unmarried or again free to wait upon the donor. But whatever the actual state of relationships, we find a mother giving property to a daughter, reserving the use of it as long as she lives.1 Similarly a brother undertakes to give one shekel per annum to his brother. Here the grounds of the undertaking are not stated, but a contract to do this is duly sealed and witnessed.2 Further, maintenence is stipulated for, though the relationship is not stated, nor grounds given. This may not be based upon a gift, but follow the order of some judge, for other reasons.3
Pin-money for a wifeThe husband might settle upon his wife a fixed amount of property. This was frequently done and was called the nudunnu. It might include a house, two maids, clothes, jewelry, and household furniture.4 Here the sons are expressly said to have no claim, she may give it to whoever serves her and “as her heart desires.” Probably she was a second wife without children, and is thus secured a life of comfort and the faithful service of her step-sons. As a rule these gifts are best considered under the head of marriage, but they were also free gifts on the donor’s part. The wife in any case had her right to inherit with her step-sons, if her husband made no such settlement.
Consent of heirs to the disposal of propertyThe consent of the legal heirs of the donor to such alienation of their reversionary rights was needed. Thus in one case, when a man gives his daughter a house, his son appears as the first witness.5 A father and his son give their daughter and sister a house, which she is free to give to her son, “whom she loves.”6 Had the house merely come to her as her share in the usual way, it must have been shared by her sons. If she had none, then her brother would be the next heir. That she can leave it as she will must be a matter of legal instrument. The brother must consent to the exception to the rule.
Donation in AssyriaIn Assyrian times, donation is rarely represented within the group of documents which have reached us. Here is one case:1
The household which Bêl-nâ’id gave to his daughter, Baltêa-abate. A house in Nineveh, before the great gate of the temple of Shamash. (Then come the servants, a šau or head man, a washerman, a šaknu, and others, male and female, in all eleven souls.) Dated the fourteenth of Adar, in the Eponymy of Marduk-shar-uṣur. Nine witnesses.
This may be donation, or adoption, or even a marriage-portion.
At all times, a difficulty arises from the phraseology of the deeds of gift. When we are told that “A has given such and such things,” we do not know the ground of the gift. “To give for money,” nadânu ana kaspi, is the usual expression for “to sell.” In the older documents šarâu, “to present,” often occurs, but has in most cases the derived technical sense “to dower,” or “give a marriage-portion.” Hence, we are not able to judge whether what appears as “gift” may not really be “a sale,” or some payment meant to complete the portioning off of a daughter, on marriage or taking vows.
In the Second Babylonian EmpireThere are, however, a large number of deeds of gift which have reached us from the Second Babylonian Empire. The characteristic formula may be taken to be ina ûd libbišu iknukma pâni ušadgil, “in the joy of his heart (i.e., of his own free will, implying that no consideration was taken per contra) he has sealed and placed at the disposal of.” As a rule, we may suspect these to be “gifts” to which the recipient had a right. Thus, mother to son,1 brother to sister,2 man to wife and daughter,3 mother to daughter,4 are not free from suspicion. But when a man gives maintenance to wife and son,5 brother gives dower to sister,6 father-in-law gives son-in-law arrears of his daughter’s dower,7 and wherever there is a hint that the “gift” was a nudunnû, or a šeritu, we may regard the case as not properly “donation,” but “dower.”
An exampleThe following example shows the limitations on free gift that still remained in later times.8 Zêrûtu had married and had a son, Shâpik-zêri. Then he had an intrigue with Nasikâtum, daughter of the Sealand scribe, who bore him a son, Balâṭu. He gave Balâṭu a house, but did not adopt him. After Zêrûtu died, Shâpik-zêri demanded the house as his father’s heir. The judges gave it to him and also the deed of gift.
DedicationsThe dedication of land to a temple or of a child to the service of a god may be considered as examples of fre gift; but they are of a nature deserving separate consideration. We have already noticed some cases of such donations by the kings. We know from the Code that a father might dedicate a child as a votary,9 and he might portion that child; but this did not bring a free gift to the temple, for the family had the reversion of the votary’s property.
As a further example of dedication by a private owner, we may take the following:10
To the chief priest of a templeAs temple of the god Lugalla (the king) and his consort Shullat, Nûr-ilishu, son of Bêl-nada, has dedicated to his god one sar of improved land, for his life (salvation), has devoted it to his god. Pîsha-Shamash shall be the priest of the temple. Nûr-ilishu shall lay no claim to the priesthood. The curse of Shamash and of Sumulâ-ilu be on him who disputes the settlement. Seven witnesses.
This is total alienation. The donor is not making an indirect provision for himself, but waives all claims to be the chief priest of the temple.
Of children to ShamashHere is an example of a dedication of children:1
Tablet of Ishtar-ummi and Aatâni, daughters of Innabatum. Innabatum, daughter of Bur-Sin, has dedicated them to Shamash. As long as Innabatum lives, Ishtar-ummi and Aatâni shall support her, and after Innabatum, their mother [is dead], no one among her sons, their brothers, shall have any claim on them for anything whatever. They have sworn by Shamash, Malkat, Marduk, and Apil-Sin. Fifteen witnesses (of whom the first two are probably the brothers, the rest females, probably all votaries of Shamash and members of the convent.)
In another case, a mother dedicates her son to Shamash,2 with the stipulation that the son shall support her as long as she lives.
To secure divine favorIn Assyrian times we have an example3 of a dedication of a son to Ninip, by his mother, with consent of her brothers and their sons. A father also dedicates his son to Ninip4 for the well-being of Ashurbânipal, King of Assyria. This is interesting as showing that the dedicator acquired merit, which he could transfer to another. Both tablets are defective. In another case, Ai-dalli, the lady governor of one quarter of Nineveh, purchases a large estate and presents it to some god “for the health of the king.”5 Votive tablets giving the presentation of various articles to some god are common enough at all periods.
Testaments or bequestsTestamentary devolution of property was not the rule in Assyria or Babylonia, where the law of inheritance was so firmly fixed that it would be naturally illegal. As a rule, children did not inherit under their fathers’ will, but by right. However, the Code allows a father to give his married or vowed daughter power to leave her property as she will,1 and it is probable that he had the same power over at least some of his property. The very frequent cases of adoption, where the adopted child becomes heir, on condition of supporting the parent as long as he lives, and the cases of gift retento usufructu, are a sort of testamentary disposition of property.
This developed with time into something very like testament. But we always have to bear in mind that conditions may have been understood which are not actually expressed.
Later Babylonian examplesSome examples from later Babylonian times will serve to illustrate how near these transactions came to testament. A very interesting case is where a son, probably childless, if not unmarried, and perhaps not in good health, gives his father his property. The document is very involved, but the chief points are these: A married and they had a daughter C, who married D. The son of C and D is the testator. He leaves to his father D all the property which he inherited from A and , which they had left to their daughter’s son. It consisted of a house, fields, and slaves. He leaves it to his father “forever,” only he is to retain the enjoyment of it as long as he lives. He therefore expects his father to survive him.2
Here is another interesting example:3
The division which A made with his sons and C. The benefice of dagger-bearer (official slaughterer) in the Ishara temple he assigns to B. The benefice of the shrine of Papsukal in the temple of Bêlit-shami-erṣiti, situated on the bank of the canal, and the sown corn-field on the Dubanîtu canal he gave to his younger son C. All his property out in business he assigned to his mother and his two sisters. Certain dates in the possession of two of his debtors he gave to his two sisters. A fugitive slave, not yet recovered, to his mother and sisters. The house, which by a former deed he had given to his mother and sisters, shall be theirs according to the former deed. As long as his mother lives, she shall enjoy the property formerly assigned her. The benefice of the dagger-bearership in the temple of Ishara, which he had formerly assigned to his mother, she has freely intrusted to his son B. As long as she lives, and C shall live in the house with her. The income of his mother his sons shall enjoy with her. She shall give marriage-portions to his sisters, her daughters, from her own marriage-portion.
This is very like a last will and testament. The man clearly expected to die shortly. He had married and had two sons, but seems to have lost his wife. He had evidently brought his mother and sisters to live with him. He provides for his sons, his mother, and sisters. Evidently his mother is the guardian of the boys. She is expected to leave the boys all the property that was his and to dower the sisters from her own fortune.
[1 ] M. A. P., 7.
[2 ] 675.
[1 ] 39.
[2 ] M. A. P., 6.
[3 ] 324.
[4 ] 2504.
[5 ] 544.
[6 ] 729.
[1 ] , No. 619.
[1 ] , 65.
[2 ] 1098.
[3 ] 334.
[4 ] 368.
[5 ] 113.
[6 ] 258.
[7 ] 348.
[8 ] 109.
[9 ] § f.
[10 ] 704.
[1 ] B3 2183.
[2 ] 349.
[3 ] , 640.
[4 ] , 641.
[5 ] , 643.
[1 ] § .
[2 ] 277.
[3 ] , ii., 20 f.