Front Page Titles (by Subject) XXVIII: PARTNERSHIP AND POWER OF ATTORNEY - Babylonian and Assyrian Laws, Contracts and Letters
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
XXVIII: PARTNERSHIP AND POWER OF ATTORNEY - 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).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
PARTNERSHIP AND POWER OF ATTORNEY
Partnership in business common from early timesAssociation, or partnership, makes its appearance very early and in a highly developed state. Some forms are very simple, as when two or more men buy or hire a piece of land together. There may, or may not, be any family relationship between the partners. In some cases we learn nothing about the terms of partnership. But where we are able to discern them, they follow the natural course that profits were divided, pro rata, according to the capital contributed. More obscure is the question how far the personal exertions of each partner were pledged to the benefit of the firm. There is a suggestion that some partners were content with furnishing capital, and obtaining a fair return upon it, while the others were actively engaged in the business of the firm. Prolonged study and comparison are, however, needed before all these points can be definitely decided.
Origin of the word for partnerThe name for a “partner” is tappû, and the sign tap serves as ideogram. This sign consists of the two horizontal strokes used to denote “two,” and may have been used to denote “union,” or partnership, and so from its name tap have given rise to the name for “partner.” In the new Babylonian times the ideogram is the sign usually read arrânu, also formed of the two horizontal strokes crossed by two connecting strokes or bonds. There is little doubt that in early times this was read girru, when denoting “business,” undertaken in association. Later the dualism of the partnership was marked by the addition of the dual sign to arrânu. That both arrânu and girru are used as words for “way,” “journey,” “expedition,” may well point to the prominence of the idea of trade journeys with caravans. But partnerships were made with less ambitious aims and confined to holding and sharing in common varied sources of income.
The usual conditionsTo make a partnership, tapputam epêšu,1 it seems that each partner contributed a certain amount of capital, ummânu.2 Yearly accounts were rendered and the profit then shared. This took place by a formal dissolution of partnership, when each partner took his share. This in no way prevented a renewal of partnership. For the satisfaction of the partners sworn declarations as to the property held in common and the profit made were deposed before judicial authorities. These often take the form of a suit by one partner against the other, but it seems that they might be only formal suits to clear up the points at issue and secure a legal settlement.
Always legally definedA considerable number of tablets are drawn up to embody a settlement on dissolution of partnership. Some do not make any reference to a law officer as arbitrator; but all contain a careful setting-forth of each partner’s share and an oath to make no further claim. It is practically certain that these were drawn up with the cognizance of the local law-court.
The Code silentThe Code has nothing to say as to partnership, unless its regulations on the point were embodied in the lost five columns.
A good example of partnership documents is the following:3
Erib-Sin and Nûr-Shamash entered into partnership and came into the temple of Shamash and made their plan. Silver, merchandise, man-servant, and maid-servant, abroad or at home, altogether they shared. Their purpose they realized. Money for money, man-servant and maid-servant, merchandise abroad or at home, from mouth to interest, brother with brother will not dispute. By Shamash and Malkat, by Marduk and ammurabi, they swore. Then follow seventeen witnesses. The document is not dated.
Explanation of the terminologyThe word for plan, ṭêmu, means the basis of partnership, that is, its terms. Here it was “share and share alike.” The phrase babtum, “merchandise,” includes all the material in which they traded, excluding the living agents. The phrase ša arrânim, literally “on the road,” may well have denoted the merchandise not in warehouse, but in circulation. Whether arrânu actually referred to a caravan may be doubtful. We often read of goods ša sui, “on the street,” in the same sense, “out on the market.” If the partners dealt in corn, and had a quantity lent out on interest, that was ša sui. Whether a distinction between ša arrânim and ša sui was kept up is not clear. But if they invested their capital in merchandise which they sent to a distant market for sale, the former phrase would be more appropriate, while if they bought wool to manufacture into cloth or garments and to sell in the bazaars of their own town, ša sui would be more suitable. The gate of the city was a market, and money or goods ša bâbi, “at the gate,” was as we should say “on the market.” In contrast to these phrases, ina libbi alim, “in the midst of the town,” answers to our “in stock.” While the term mitariš literally means “altogether,” “without reservation,” it implies exact equality of share. The amâtu was the “word,” literally, but, applied to business, means the agreement as to their mutual transactions. The completion of that was reached when they took the profits and divided them. It might include the mutual reckoning of profit and loss. The phrase “from mouth to interest” is very idiomatic. The “mouth,” or verbal relationships, included all they said, the terms they agreed upon. The word “interest” here replaces the more usual “gold;” both mean the “profit,” or the balance due to each. Usually we have the words “is complete,” the idea being that no verbal stipulation has been overlooked, no money or profit left out of reckoning.
Evidence of long-established commercial customsAs will be remarked, such pregnant forms of expression evidently presuppose a long course of commercial activity. They can only have arisen as abbreviations of much longer sentences. Clear enough to the users of them, they do not admit of literal rendering, if they are to be intelligible to us. But they are eloquent witnesses of an advanced state of commerce.
In Assyrian literatureTraces of partnership are difficult to find in the Assyrian tablets which have reached us. We must not confuse with partnership the holding in common of property or lands, which may be due to heritage. Two or more brothers may sell their common property, for greater ease of division, but they are not exactly partners.
In later Babylonian times such evidence commonIn the later Babylonian times, as is natural to expect with the larger number of private documents, there is much evidence regarding the many forms of association for business. We have such simple forms as the following:1
One mina which A and have put together for common business. All that it makes is common property.
Two minas each, A and , have as arrânu. All that it makes, in town and country, is in common. Rent of the house to be paid from capital.2
The many varied detailsThey had a house, as shop and warehouse, the rent of which was a charge upon the business. Slaves might be partners with free men, even with their masters. A partner might merely furnish the capital or both might do so, and commit it to the hands of a slave or a free man with which to do business. The slave took his living out of such capital, and the free man received either provisions or a fixed payment. Thus we read:1
Five minas and six hundred and thirty pots of aromatics belong to A and as partners. This stock is given to C, a slave, and D, another slave, with which to do business. Whatever it makes is A and B’s in common. C and D take food and clothing from the profits where they go.
It is not unlikely that each slave was to look after his own master’s interests. For we read:2
Six minas belong to A and and are given to C the slave of as capital. A and share what it makes. A will give another slave D to help C.
Even women entered into business as agents. We read:3
Two-thirds of a mina belonging to A and are given to a free woman with which to trade.
A formal dissolution of partnershipAs in earlier times, the dissolution of partnership usually involved a reference to the law-courts. Thus we have4 a reckoning before judges of two brothers and a third who were in a partnership from the eighth year of Nabopolassar to the eighteenth of Nebuchadrezzar. “The business is dissolved” (girru parat). All the former contracts were broken and shares are assigned to each. The first two brothers were in possession of fifty shekels which were to be divided.
ReckoningsProvisional reckonings were constantly made at frequent intervals, but did not involve dissolution of partnership, nor need to be referred to a law-court.5
Some cases are interesting for additional items of information. Thus we note:1
A manufacturing partnershipTwo partners put in each fifty gur of dates. Whatever it makes is to be in common. They take a house in Borsippa for one year at rent of half a mina. The rent is to be paid out of profits. holds the house and apparently carries on the business. At the end of the year he returns it and all the utensils to A.
It seems likely that he carried on some kind of manufacture. A held the south house, next door. also paid the tithes. A similar case where some manufacture from dates is supposed, is thus stated:2
A lends one hundred gur of dates, fifty gur of corn, sixty large pots, to and C two of his slaves, on a partnership. They are to take in common whatever it makes, in town and country. The venture is to last three years. But, in this case, they are to pay interest two minas per annum. At the end of the three years, the two slaves returned all.
They were given a house for which they paid no rent.
Power of attorney recognized and frequently usedClosely allied with agency is the power of attorney. In the Code3 a son in his father’s house could not contract, buy or sell, or give on deposit, except by power of attorney empowering him to act for his father. The same was true of the slave. The contemporary documents contain many references to business done by agents on the order of their principals.4 The Assyrians also make frequent mention of persons acting as bêl âtâti, having the power of another’s hands, being in fact allowed to act as their attorney or agent. The king was represented in the law-courts by his agent.5 Sometimes the agent was called bêl paâti of the king’s son.6 It even seems to be the case that âtâtu acquired the sense of agency, or business, and bît âtâti came to mean a “shop,” or bazaar. In many cases “agency” was expressed by ša âtâ, “by the hands of.” Aliens had to act through such an agent.1 When three men borrow a quantity of straw, one alone sealed the receipt and bond to repay, and was said to be bêl âtâti ša tibni, “agent for the straw.”2 A female slave was sued for property said to be due from her master, in his absence. A free man, perhaps the judge, was bêl âtâti for the woman that her master would take up the case on his return, and undertook to satisfy the suitor, if she could not do so.3
Protection of the rights of the principalIn later Babylonian times the phrase survived. The commissary acted “with the hand” of his principal. We may take this to be the hand-sign, or seal, representing written authority. It involved a reckoning with his master, and naturally gave rise to a number of delicate questions. If a man bought a house for another, having been commissioned so to do, his principal must of course pay the price. But was he bound to accept his agent’s selection? Could he not demur regarding the price? One of these points at least was dealt with by the later Code. Law A deals with the man who has concluded a purchase for another, without having a power of attorney from him in a sealed deed. If he has had the deed made out in his own name, he is the possessor. Of course, he can sell again to his principal, but he could not do so at a profit. Nor is the principal under any obligation to accept the purchase at the price the agent gave for it. Actual examples are far from rare: A buys a field, crop, date-palms and all, for C and D. This purchase was made on condition that all copies of the transaction be destroyed. The condition was not observed, as we still possess one of them. Later A received from C, one of his principals, about half the price he had paid. But it does not appear that D ever paid his share, and this is why the condition was not carried out. Presumably A and C remained owners of the field.1
Representative actionThere is no limit to the varieties of agency or representative action. At all periods we meet with a brother, usually the eldest, acting for his other brothers. A brother acting with the hand of his brother also occurs in the time of Evil Merodach.2
Power of attorney over fundsThe power of attorney was also given to receive money and give a receipt, under seal.3 Again: A bought some slaves of and paid in full. gave receipt for the money, but did not undertake to deliver the slaves at A’s house. A can send a messenger or agent to take the slaves, and agrees to deliver them to such. Whatever is born or dies from among the slaves is credited to A.4
[1 ] M. A. P., 78.
[2 ] M. A. P., p. 13.
[3 ] 358.
[1 ] Nbn. 199.
[2 ] 88.
[1 ] Nbn. 572.
[2 ] Nbn. 653.
[3 ] Nbn. 652.
[4 ] 116.
[5 ] A. B. P., ii., 59.
[1 ] 280.
[2 ] 395, 396.
[3 ] § .
[4 ] Page 243.
[5 ] , No. 94.
[6 ] , No. 152.
[1 ] , No. 307.
[2 ] , No. 151.
[3 ] , No. 166.
[1 ] Nbn. 132, 133; A. B. P., p. 11.
[2 ] , 13.
[3 ] 386.
[4 ] A. B. P., ii., 34.