Front Page Titles (by Subject) XXIV: PLEDGES AND GUARANTEES - Babylonian and Assyrian Laws, Contracts and Letters
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XXIV: PLEDGES AND GUARANTEES - 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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PLEDGES AND GUARANTEES
Pledges given as security in early timesVery little is known about pledges in early times, though Meissner had argued for their existence from certain passages of the series ana ittišu, such as “on account of the interest of his money he shall cause house, field, garden, man-servant, or maid-servant, to stand on deposit”; followed later by, “if he bring back the money he can re-enter his house; if he bring back the money, he can plant his garden again; if he bring back the money, he can stand in his field; if he bring back the money, he can take away his maid; if he bring back the money, one shall return his slave.”1 Consequently the creditor held the pledge in his possession until the loan was returned, when he had to give it back. The pledges here mentioned are antichretic, that is, such that they produce an income or return to the holder, which is a set-off against the interest of his money.
Similarity of this custom to distraintThe Code recognizes the taking of property in satisfaction of a debt.2 But this is rather a process of distraint upon the goods of the debtor, in case of non-payment, than a case of pledge. Since it was usually expected that the property so taken would be returned on payment of the debt, we can hardly distinguish it from pledge. Indeed, where a debtor gave up his wife, child, or slave to work off a debt, we have a case of antichretic pledge for the debt and interest.
The practice in later periodsIn times subsequent to the First Babylonian Dynasty, the pledge is common. As a rule, it is antichretic, such that income or profit derived from the pledge is a fair equivalent for the interest of the loan. The lender acquires the right of enjoying the pledge. As a rule this is assigned him absolutely, so that no account is needed to be kept of interest on one side and profit on the other. If the profit exceeds the interest due, the excess may be returned, or it may be credited towards the discharge of the debt. If the interest exceeds the profit on the pledge, then the amount by which the loan exceeds the capitalized profit must pay interest.
Very frequent in AssyriaIn Assyrian times loans on security are fairly common. Here also we have antichretic loans, where the profit on the pledge was a set-off against the interest of the money. The pledge is expressly stated to be “in lieu of interest.” But it seems that the property was often expected also to extinguish the debt. Or it was merely pledged, as a security, which the creditor would keep in case he could not get his money back. We may illustrate these by examples:1
A loan secured by land and seven slavesThe lady Addati, the šakintu, lends two minas of silver, Carchemish standard, exact sum, to D, the deputy of the chief of the city. In lieu of the two minas of silver, a plot of twelve homers of land in the outskirts of Nineveh, Kurdi-Adadi, his wife and three sons, Kandilânu and his wife, in all seven people, and twelve homers of land, are pledged. On the day that one returns the money, the other shall release the land and people. Dated the first of Marchesvan, bc 694. Ten witnesses.
The point about the phrase, “exact sum,” seems to be that the advance was made without any rebate. Here the security is worth little more than the loan. Its profits would, however, be a good security for the interest of the loan. No time is given for repayment, but the creditor undertakes to accept repayment and release the pledge at any time.
A loan secured by a vineyard and slavesThe lady Indibî lends sixteen minas of silver, royal standard, to D. In the month of Tishri, he shall pay the money in full; if not, interest shall be two shekels per mina monthly. A vineyard in the village of Bêl-aê, next to that of abašu, next to that of Sïbanik, next to that of the chief scribe; also these slaves, Dâri-Bêl, his wife, three sons, and two daughters, along with his household, four fat cows (?); udi-sharrûtu and his daughter; all are pledged as security. If they die or run away, the loss shall be D’s. The day that D shall refund the money, with the interest, his slaves and vineyard shall be released. Dated the ninth of Ab, bc 688. Six witnesses.
A loan secured by a fieldFive homers of land belong to D, in the city Kâr-Au. The lender L gives D two-thirds of a mina of silver. This two-thirds of a mina of silver L shall acquire from the field and when D thus has given L his money back, he shall release the field. Dated the sixteenth of Iyyar, bc 680.
In the following case a maid is assigned outright for a loan. It is doubtful whether this is a sale, or a pledge:3
By the service of a maidIn lieu of money, Bêlit-ittîa, the maid of the šakintu, is assigned to the lady Sinki-Ishtar. As long as she lives, she shall serve her. Dated the fourteenth of Iyyar, bc 652.
By the borrower’s serviceA very similar case occurs in the loan of corn and a cow by the bêl paâti of the Crown Prince, to a certain Nargî of the city of Bamatu. Nargî was to serve the lender for the corn and cow. When his service had become equivalent to the value of the advance, he could go free.4
Antichretic pledge was very common in later Babylonian times. The most typical examples are houses. The lender has a house in pledge.In later Babylonian times by the free use of a house To him it is rent-free until the loan is repaid. Hence the common phrase “rent is nought, interest is nought.” There was then no reckoning made one against the other.1 The creditor might not, however, care to take the pledge in perpetuity against interest of a loan, never repaid. Usually a date was fixed for repayment, at which time the debtor was bound to take back his pledge. Thus a house might be pledged definitely for three years.2
Relations between profits and interestA reckoning might also be made, to check off profit against interest. Thus D pledges a field to L, but on condition that, if in any year the crop is less than will meet the interest due, he shall pay the difference; but if, on the other hand, it be worth more, he shall take the balance.3
Second mortages barredThe value of the pledge might, however, be such that it would outweigh both loan and interest. At any rate, it should be as valuable as the loan. Hence it could not be used as a further pledge to another. There is often a guarantee that the pledge given has not been already pledged, that no other creditor has a lien upon it.
The creditor’s responsibilityIn these cases the creditor enters into possession of the pledge and enjoyment of it. He has some responsibilities towards it. He cannot destroy it, or waste it. As a rule, he assumed full liability for all cases for wear and tear. He also fed and clothed a slave pledged to him. Now and then we find the debtor responsible for clothing the slave pledged by him.4 It is not essential, however, to the idea of pledge that it should come into the possession of the creditor, only it is hypothecated to him. This practice was very common in later Babylonian times.5
Pledges often anticipated and readily transferableSuch pledges give an eventual possession. Something like a reversion occurs in the pledge of a share not yet divided.6 Thus a sum was borrowed on the understanding that if not returned by the proper time, a slave shall be handed over as an antichretic pledge.2 The man who gives a pledge may not be in actual possession of it, but pledges it on the understanding that he will hand it over as soon as it becomes his. Thus bought a slave and her two young children for sixty-five shekels, but before they were handed over, he pledged them for fifty-five shekels. Nine months later he sold them for sixty shekels.3
MortgagesA common case is where the debtor pledges all he has to the creditor, a pledge usually greatly in excess of the value of the loan and its interest for a reasonable term, but remains in possession himself. Hence the creditor has only a right over the pledge, a lien upon it, but no usufruct. For this he had the bond. This also gives only an eventual possession.
The creditor in free use, within his needs, of pledged propertyWe often meet with after-pledge. The creditor, being in possession of the pledge, might traffic in its profits. If he held a house as pledge, he was not bound to live in it, but could sublet it. Hence he might pledge the rent of it. Or he could repay himself his loan by repledging the house to another. He could also pledge the loan which was due to him. This makes a rather complicated case.
Possible complicationsThus L makes an advance a to D and receives a pledge p. He may then pledge both a and p. If these are given to two separate persons, a to A and p to P, then P has a cause for uneasiness. If D comes in and pays up a, he has a right to the pledge p which is in P’s possession. But the money he advanced is not thereby paid to him. Further, A has a right to the money a just paid in by D, which is all that is in evidence. Hence L will have succeeded in getting two sums, and unless he can succeed in realizing his investments of them, is called on to pay both A and P with one amount. Either A or P may suffer. But if L pledges both a and p to one man C, then C is quite independent of the relations of L to D. Now D simply has to pay C and gets his pledge back. C is sure of his money.
Method of securing the holder of a second mortgageSuch a transfer of the responsibility of D from L to C was effected by handing over to C, with the pledge, also D’s bond to L. C now holds this bond, which, with his pledge, D wishes to get back. The following is a complicated case illustrating these points:1 D had a house and pledged it to L, who lived in it. Two others were guarantees that D would repay the loan. The pledge was antichretic, “rent nothing, interest nothing.” Now L wanted money; so he pledged the house to C. But he did not wish to vacate. So he hired it of C, at such a rate that he would repay C’s loan in about five years. It is clear that this house was not good security for C, since D might turn out L at any time by repaying him. L would then owe money to C for which C had no security at all. But L in addition pledged all his own property, his slave, and all his goods in town and country. Further, he not only pledged the house, but handed over D’s bond to him. C thus held the house in after-pledge, and the advance with its security in pledge. He was therefore amply secured, since D must pay him.
Now L died and was succeeded by his son M. L had already paid nearly a third of his debt. M thus owed less interest on the loan still due and was accepted by C as tenant at a lower rent. By this means M really made a small profit to himself. In three years M had paid off the whole sum borrowed by his father, and due from him as heir and executor, so he gave back his father’s bond to C, also D’s bond to L. Now D paid back his loan to M. His bond to L was destroyed. The claim of C on D was annulled, the guarantees of D were free. A final deed of settlement was drawn up, in which C acknowledged that he had no claims on D or M, nor on D’s sureties. He had to say this, because he was not only creditor to M, but as long as he held transferred to him the pledge of D, and the credit of L, he was a creditor with claims on D also. Further, M declares that he has no credit on D.1
The occasion for guaranteesA guarantee arises from certain persons undertaking to fulfil a responsibility which is legally incumbent on another, in case he fails to do so himself; or to secure that he shall fulfil it himself. Thus, guarantees are very frequent at all times, especially in the later Babylonian period, and are of many different kinds.
Guarantees for debtA guarantee for debt was an additional security to the creditor. Of course, the original debtor is the security that the guarantor shall not lose. A good example showing all sides is the following bond for three minas due from D to L. G and W come in and guarantee that D will pay; if not, they will. To protect themselves, they take as a pledge of D some of his people. But D paid and received back his people, so that the bond was returned to D.2 Why D did not give his people as pledge to L direct is not clear. G and W were probably persons of greater credit and perhaps related to D. The guarantor was sometimes called on to pay. Thus G guarantees for D, is called on to pay and D repays him.3 The guarantor was legally protected against the defaulting debtor.4
For appearanceA guarantee for appearance may have been only to come and pay, as when G guarantees the creditor, a temple, that D will come on a fixed date, and pay his debt; or if not, G will himself pay.5 It may be a guarantee that a man will not go away; by which may be meant escape payment, or fail to appear for judgment. This is called a guarantee “for the foot of” the person thus indorsed. The “foot” is said to be in the “hand” of him who demands the guarantee. It often refers to debt. G guarantees for the foot of D, out of the hand of L. If he goes away, G will pay thirty-five gur of dates. Here G is the mother of D.1 So, probably on account of debt, G guarantees for the foot of D, his son-in-law, from the hand of L;2 again, G guarantees for D to L that D will come on a certain day. G. takes the responsibility for all D owes to L, and will pay if D does not come.3 Or, G guarantees for D and E that they will not leave for another place. If they do, he will pay six minas.4
For a witness’s appearanceBut the appearance may be needed for a different purpose. G guarantees to bring a witness to Opis, and give witness against L that one who was guarantee for the foot of someone to L shall return at the right time. If the guarantee shall prove that L was paid, he is free; if not, he is bound to pay.5
D owed L a debt. L ceded this debt to M, but had to guarantee that D will come and pay.6
Joint responsibilitySolidarity is in some cases a form of guarantee. Thus two men D and E owe a debt to L. Each is taken as guarantee for the other that they will pay.7 This is one of the commonest forms of guarantee. The debt could then be recovered in its entirety from either.
Against theft Of full value of property soldAn example of a guarantee against theft is also found.8
A warrant against defects in a slave is very common. The seller warrants that if the slave prove to have certain undisclosed defects, vices, or liabilities, which would detract from his value to the buyer, the seller will indemnify the buyer. This indemnification seems to be effected by a return of the purchase-money and accepting the slave back. But, in some cases, the seller returned part of the purchasemoney according to a fixed scale of allowances. In the sale of an estate, the seller guarantees that he will indemnify the buyer in case of any defect of title to sell, or any lien upon the estate.
Against suits at lawVery common at all times was a personal guarantee not to dispute the compact entered into. In fact, this may always be said to be assumed. The oaths by which parties swore to observe the terms of the compact are a form of this guarantee. The penalties, so prominent in Assyrian times, are voluntary undertakings to forfeit stated sums, if found attempting to go behind the contract.
Of the value of securitiesAs the pledge did not always leave the debtor’s possession, the creditor only had a lien upon it. Hence the giver of the pledge had to guarantee that no creditor had a previous lien upon it. This is also extremely common. A slave pledged for debt might run away. His labor as the offset against the interest was thus annulled. The borrower then becomes liable for the interest lost to the creditor.1
[1 ] M. A. P., p. 9, and notes 1 and 2.
[2 ] §§ , .
[1 ] , No. 58.
[1 ] , No. 66.
[2 ] , Nos. 73, 74.
[3 ] , No. 76.
[4 ] , No. 152.
[1 ] 655.
[2 ] 24.
[3 ] , p. 282 f.
[4 ] 408.
[5 ] 294.
[6 ] 144, 235.
[2 ] Nbn. 655.
[3 ] Nbn. 765, 772, 832.
[1 ] 132, 142, 172.
[1 ] Such is an actual case traced through its phases by Kohler and Peiser.—
[2 ] 319.
[3 ] 310.
[4 ] , ii., p. 73.
[5 ] , p. 6.
[1 ] 147.
[2 ] 342.
[3 ] 86.
[4 ] 83.
[5 ] 366.
[6 ] 119.
[7 ] 133.
[8 ] 93.
[1 ] 431, 434, 39.