SUCCESSION IN ELEPHANTINE AND JEWISH LAW: BROOKLYN MUSEUM ARAMAIC PAPYRUS 2

Journal of Semitic Studies XXVl/z Autumn 1981

SUCCESSION IN ELEPHANTINEAND JEWISH LAW:

BROOKLYN MUSEUMARAMAIC PAPYRUS 2

ISAAC GOTTLIEBBAR ILAN UNIVERSITY

This article deals with the laws of inheritance in the event of thepredecease of a husband or wife who is childless. Though thetopic has been dealt with previously,1 the publication of BMAPz2 in more complete form shows that this document shouldfigure more prominently in any comparative treatment. Wehope to prove that previous assumptions and conclusions mustbe revised in the light of the reconstructed text and our discussionhere. It is specifically lines 10-13 °f BMAP z that interest usmost. These contain a number of erasures; with each successivearticle, some aspect of the reading has been painstakinglyclarified.3 The summation of these analyses may now be seenconveniently in the texts and translations of B. Porten, incollaboration with J.C. Greenfield.4 Nevertheless, though theerasures have been admirably restored, the reasons for theerasures and reformulations, as well as the sense of the originalwording, seem to be more elusive than the readings themselves.

1 L.M. Epstein, The Jewish marriage contract. New York 1927, 121-43';Reuven Yaron, The law of the Elephantine documents [in Hebrew], Jerusalem1961, 82-100, and in the corresponding chapter on succession in the Englishversion, Introduction to the law of the Aramaic papyri, Oxford 1961.

2 E.G. Kraeling, The Brooklyn Museum Aramaic papyri, New Haven 1953,142-9, abbreviated BMAP.

3 The bibliography can be found in Bezalel Porten, "The Aramaicmarriage contract of the handmaiden Tamut" [in Hebrew], in B. Uffen-heimer (ed.), Bible and Jewish history: studies... dedicated to the memory of JacobLiver, Tel Aviv 1971, 321, nn. 1-3. This is the most recent article to dealwith the readings of BMAP 2. Porten's transcription in "Aramaic papyri andparchments", BA xui (1979), 83, takes no note of readings before theerasures.

4 Jews of Elephantine and Arameans ofSyene: Aramaic texts with translation,Jerusalem 1974, 38.

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SUCCESSION IN ELEPHANTINE AND JEWISH LAW

We cite the lines and their translation from the previouslymentioned edition:5

nr w inn -iovbv fta TOT na

nam T » fa jnrr i JOSJ Vaa W V P "fi nan rrns nw pns -nin

f_a f a jnir n josi Vaa IVDJ V*TB m "as nan man pna nr IK "ina -12"i» f3i nan -13

(io)Tomorrow or another day, (11) should Ananiah die(erasure: [Meshullam son of Zaccur, he] has right to half), Tamut,she, has right to all the goods which may be between Anani andTamut. (12) Tomorrow or another day, should Tamut die,Anani, he, he has right (erasure: to half) to all the goods whichmay be between (erasure: between) (13) Tamut and Anani.

Here is a marriage contract drawn between Anani, a freemanat Elephantine, and Meshullam son of Zaccur, master of Tamutthe handmaiden, who is to be given to Anani in marriage. Thereal-life situation behind lines 10-13 1S the predecease of eitherof the parties, Anani the groom or Tamut the bride. This clauseseems to be parallelled by similar stipulations in AP 156 andBMAP 7, the only other complete marriage contracts fromElephantine. We cite the relevant lines:7

AP 15: 17-22

vb mpn 13T131 -linos n w jhnta or ix ina «i7nn"33 ntrVp "n rrnoDB nnnw rrtnotoa p n1? WN «is

ns-iK ••BIK Vs rfr WK n Vai n«pi [-wl can nno« n »i9K1? nspn "at 131 rrnosa man nr IK ina n"?s -20rrvon raxrv in ninox n*?»3 nnoK p nV ^"8 -21

rmpi -22

(17) Tomorrow or another day, should Eshor die having nomale or female child (18) by Miptahiah his wife, Miptahiah, she,has right to the house (19) of Eshor, his goods, his property andall that he has on the face of the whole earth. (20) Tomorrow oranother day, should Miptahiah die having no male or female

5 P. 38. Brackets indicate restoration, underlining indicates legibleerasure. Italics in the translation indicate supralinear additions or erasures.

6 A.E. Cowley, Aramaic papyri of the fifth century B.C., Oxford 1925, 44-},abbreviated, AP.

7 Porten, Jews of Elephantine, 20, 22. BMAP 7 is found on pp. 54, 56.

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child (21) by Eshor her husband, Eshor, he shall inherit fromher her goods (22) and her property.

BMAP 7: 28-30, 34-6.

i nst nai rras ma' [jlm •»"moan niraa nmn [K] *n vnwr nnnw saw hrrl ja n"? vmb napn -29

... In*? i r a T Vai nnronil nnpi •»sV napn h i sW "iai [sa«n;r] man jnM -34

ntnional ranT in Wnz "us rMsra T » JB n1? VPX «35

n1? ["]nn< t -36

(28) And if Ananiah die having no child, male (29) or female, byJehoishma his wife, Jehoishma, she, shall succeed him to hishouse, his goods, (30) his property, his money and everythingwhich he has. (34) And if Jehoishma die not having a child,male or female, (3 5) by Anani her husband, Anani her husband,he, shall inherit from her her money, her goods, her propertyand all (36) that she has.

On the basis of the similarity between the three documents,R. Yaron has concluded that our text probably deals also withthe death of either partner without offspring, though this isnowhere explicit in BMAP 2.8 However, this is not theinterpretation of J. Hoftijzer and P.W. Pestman, who write:"The unmentioned half-shares, in both cases, go to a partywhose share was assured... the children."9

It would seem that Yaron has retracted on this point infavour of Hoftijzer and Pestman, for, in his latest study of theselines, he writes: "To whom goes the other half upon the deathof Anani, the husband, in line 11 ? Either to the children, or -less likely - to Tamut herself."10 We hope to show in this articlethat the clause in BMAP 2: 10-13 refers to predecease withoutchildren, as Yaron originally surmised. We also hope to adducelegal parallels which will explain the clause as it stood before the

8 Yaron, "Aramaic marriage contracts from Elephantine", JSS in (1958),9; idem, The law, 86. See below, p. 203, Addendum.

9 "Hereditary rights as laid down in the marriage contract Krael. 2",BiOr xix (1962), 217. No reference is made to Yaron's view of the clause.Porten, Archives from EJepbantiru, Berkeley 1968, discusses BMAP 2 in detail(pp. 205-11), see especially pp. 210-11, note 59.

10 "Minutiae Aramaicae", JSS xm (1968), 208.

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erasures and the relationship of the original version to the linesafter the scribe's corrections.

In the search for legal parallels to the predecease clauses inBMAP 2, Yaron11 cites Code of Hammurabi paragraph 176,which speaks of the marriage between a slave and a freewoman.Upon the slave's death, the wife and the slave's master share thepossessions. However, the situation is not identical, as Yaronhimself notes,12 for there the couple have children. Further, theCode is silent about inheritance where a husband who is afreeman predeceases and is childless; nor do Egyptian Demoticmarriage documents provide for the right of the childlesssurviving spouse.13

In the case of the predecease of the wife without children,Yaron finds that AP 15 and BMAP 7 differ from Babylonianlaw but are in striking agreement with Talmudic halakah.1* NearEastern law has it that the dowry, in the case of the wife's death,reverts back to her father's house, while the Mishna-and Talmudrule15 that the husband inherits his wife, just as the papyristipulate. However, Yaron points out that the actual Talmudicpractice may have differed from the professed law; the JerusalemTalmud cites a stipulation in the name of Rabbi Yose that theketubbab, i.e. the Talmudic dowry, can, by mutual writtenagreement, revert back to the father of the bride upon the deathof the wife without children.16

Yaron does not mention BMAP 2 at all in the context of theabove discussion. Presumably, he chose to separate this docu-ment from the others because of the unique status of the brideTamut, who remained the slave of Meshullam even after hermarriage to Anani. Also, whereas in AP 15 and BMAP 7 thehusband is said to "inherit", yrtnh his wife, in BMAP 2 he is

11 The law, 88, n. 1.»2 Ibid., 89.13 Porten, Archives from Elephantine, 343.«4 The law, 88-9.15 Mishna, Baba Batra, 8,1: "A woman bequeathes property to her sons, a

wife to her husband... but they do not inherit from them." TB Baba Batra,11 ib : " 'And he shall inherit her' (Num. xxvii. 11) teaches that the husbandis heir to his wife."

16 Jerusalem Talmud, Ketubbot, s sa^n-TJfSfanST p V w o r 'SI "1BK•0-7 iwni vm paa nan n-ax rva1? nm rtrm xrr p a i6a "Said R. Yose,'Those that write "If she should die without children, let that which is hers(what she brought into the marriage) return to her father's house" - this is avalid monetary stipulation.'"

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given "control over", /// their joint possessions. This term /// isused in AP 15 and BMAP 2 to describe the wife's rights whenthe husband predeceases.

As Yaron understands the distinction,17 the husband's rightto the joint property is anchored in the law. In AP 15 andBMAP 7, the document is only declarative, referring, as it were,to the general laws of inheritance. Therefore, the term yrtnh"inherit" is used for the husband. But the right of the wife toher husband's property upon his death hinged not upon thegeneral law but on the stipulation in the document. The rightwas contractual, and this accounts for the term ///, "controlover". But in BMAP 2, Tamut the handmaiden was legally thepossession of Meshullam, and Anani's right to succeed her wasalso based on contract; hence the use of /// in reference to him.

Now that the original reading of BMAP 2 has been establish-ed, this document should be brought back into the discussionof comparative law in the case of predecease without children.For this purpose, certain aspects of the Talmudic tradition willbe detailed below.

Jewish law — the term is used here as inclusive of biblical,Hebrew, and rabbinic traditions - exhibits changes in itsattitude towards inheritance after predecease.18 We have alreadycited the Talmudic ruling that the husband inherits his wife,while noting the contradictory practice cited by Rabbi Yose forthe dowry to return to the father of bride.

There is yet a further development. In a ketubbah found in theCairo Geniza dated 20 January 1082,19 stipulation is made thatupon the death of the wife without issue, half of her dowry is toreturn to her father's house, "in accord with the custom of theinhabitants of Palestine."20 It goes without saying that theremaining half of the dowry went to the husband. This clause,

17 The law, S/, 90.18 There is n o clear example o f predecease without children in the Bible.

However , M . Z . Segal, "The book of Ruth", in Studies in memory of A . Gulakand S. Klein [in Hebrew] , Jerusalem 1942, 12; , makes the point that Naomisucceeded her husband Elimelek upon the death o f their two sons, and Ruthinherited her husband ( w h o was childless) by virtue o f a practice which wasopposed to Talmudic law but identical to the law o f Elephantine. Note ,however, that in Tarbi^ xiv (1943), 78, he published a correction andretraction o f this theory.

19 Published by So lomon Schechter, JQR x m (1900-1), 218-21.20 The translation "inhabitants" is based on J . N . Epstein's reading dbny

instead o f rbny; see n. 23.

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found in other ancient ketubbot as well,21 is taken to be theprecursor of the mediaeval takkanot Sbum22 or of the SephardicToledo enactment.23 Both of these communal codes laid downthe "half-half principle, as we shall call it, as binding evenwhen not explicitly written into the marriage contract.

Full credit for citing the Geniza hetubbab in relation to the"death without issue" clause in the papyri must be given to theTalmudic and Semitic scholar J.N. Epstein in a review ofCowley's Aramaic papyri which appeared in 1908.24 He was alsosensitive to the different legal traditions of Babylonia, Egyptand Palestine on this issue. But Epstein drew the comparisonbetween the Geniza ketubbah and AP 15, which makes thehusband successor to all of his wife's property. How could heknow that the very same word "half, pig, would eventuallyturn up in BMAP 2 (published by Kraeling in 1953) and not bedeciphered until I96I?25

The similarity between the Geniza ketubbah and BMAP 2 onthis point is self-evident. Both incorporate the half-half princi-ple when the wife predeceases the husband. Furthermore, therelation between the clause before the erasures and after26 -when either spouse is appointed to inherit the other in toto — isprecisely the relation between Jewish law as stated in theTalmud and the Jewish practice as evidenced in the Genizaketubbah and in later developments.

Finally, Yaron himself made the point of declarative versuscontractual rights; the rights of Anani are contractual. It shouldbe pointed out that Rabbi Yose's clause is likewise a contractualstipulation, as is the law of the Cairo Geniza ketubbah.^ Only in

21 See A. Gulak, Anthology of contracts [in Hebrew], Jerusalem 1926,for a discussion of this condition and the documents which include it. AlsoL.M. Epstein, The Jewish marriage contract. New York 1927, 139, n. 30.

22 Schechter, JQK xm, 219.23 L.M. Epstein, Contract, 139, n. 30. Part of his argument is invalidated

by J .N. Epstein's reading; see n. 20 above.24 "Notizen zu den jiidisch-aramaischen Papyri von Assuan", JJLG vi

(«9°8)> 359-75-25 R. Yaron, "Notes on Aramaic papyri. 11", JNES xx (1961), 129.26 It should be pointed out that microscopic and ultra-violet tests, as well

as the blank spaces in lines 11-12, all show that the erasures were not made inthe course of writing but after completion of the document, by the samescribe in the original ink. This eliminates the possibility of scribal error as thereason for the erasures. See Porten, "The Aramaic marriage contract", 321.

27 See, however, below, p. 201.

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mediaeval times were these contractual rights incorporated intothe general laws of the community.

In their study of BMAP 2, Hoftijzer and Pestman posed thefollowing questions: "Why is only half of the common propertymentioned in lines 11 and 12 and the other half ignored ? Whatis the connection between the original version of the text andthe present one?"28

The other half is ignored for the same reason that it is notmentioned in the Geniza ketubbah. In both cases it was self-understood that the other half went to the successor named bylaw (Talmudic or Elephantine), i.e. the surviving spouse.Therefore we conclude that the other half in line 11 went toTamut. The remaining half in line 12 went to Meshullam, thelegal analogue of the father of the bride in the Geniza ketubbab.

If the legal options in BMAP 2 and the Geniza ketubbab wereidentical, as we have tried to show, the circumstances of thecases must also have been quite similar. We are therefore forcedto reject Hoftijzer and Pestman's view about who acquires theother half of the property upon the death of Tamut - "it seemsunlikely to be the owner of Tamut."29 We also dispute theiropinion that the children share with Meshullam upon the deathof Anani. We reject their conclusions because they are based onthe assumption that lines 11-13 deal with spouses who leavechildren. This does not seem correct in the light of the accumu-lated parallels. It may be unscholarly to harmonise the papyri andJewish law for the sake of harmony itself. However, acceptingYaron's injunction that "the Aramaic papyri must be treatedwith reserve as evidence for Jewish law"30 is no reason toignore the similarities. Comparison between the two legalsystems can be of mutual benefit to both without implyingorganic connection.

Having shown how our understanding of BMAP 2: 10-13has been influenced by parallels in Jewish law, it remains for usto clarify the developments we have seen in the Jewish systemwith the aid of the Aramaic papyri. J.N. Epstein, in the reviewalready cited, viewed the changes in Jewish law against abackdrop of conflicting legal traditions. The Talmudic law thatthe husband inherits from his wife represents the early Israelitelaw which is preserved in the Elephantine papyri as well. Rabbi

28 BK)r xix, 217.» Ibid.30 JSSm (1957), 39.

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Yose, though cited in the Palestinian Talmud, is actually RabbiAssi, a Babylonian scholar. His proviso that the dowry returnsto the wife's father betrays Babylonian, non-Jewish influence, asexpressed in Code of Hammurabi paragraphs i63-4.3t

The half-half clause of the Geniza ketubbah, according toEpstein, is clearly a case of compromise. He does not elaborate,but there are several ways in which this compromise can beunderstood. The Geniza ketubbah celebrated the marriage of oneNasi David, son of the Nasi Daniel, to a Karaite bride fromPalestine.32 It should be borne in mind that the Karaites neveraccepted the Rabbinic-Talmudic position that the husbandinherits from his wife.33 Thus the underlying law of this ketubbahmay be that the father of the bride inherits in case of herpredecease without children, and the compromise gave thehusband half in accord with the Jewish tradition; or theunderlying law may be the Judaean-Talmudic position that thehusband inherits from his wife, with the concession going in theother direction, i.e. towards Rabbi Yose's stipulation.

In a comprehensive article on laws of succession betweenhusband and wife, Simha Assaf rejects Epstein's theory ofBabylonian influence.34 First, there is no mention of R. Yose'sstipulation in the entire voluminous Babylonian Talmud.Secondly, there is no discussion of it in the subsequentliterature of the Babylonian Geonim. Finally, not a singleBabylonian ketubbah with this stipulation has survived. Assafbelieves that the custom of returning half the dowry to thebride's father is a Palestinian custom which spread to Egypt,

31 "If a seignior acquired a wife and that woman has gone to (her) fatewithout providing him with children, if his father-in-law has then returnedto him the marriage-price... her husband may not lay claim to the dowry ...since her dowry belongs to her father's house." See ANET, 173.

12 J.N. Epstein, "Notizen", 372, calls David "der Exilarch David ausBabylonien", probably to strengthen his thesis that R. Yose's stipulation andthe Geniza ketubbab are of Babylonian origin or influence. Schechter, loc. cit.,points out that we know of Babylonian exilarchs named David and Daniel"and it is only natural that their names should turn up again in the familypedigrees of the Egyptian Nesiim, claiming, like the former, to be descen-dants of the House of David." M.K. Friedman (see next note), p. 177, callsDaniel a "Palestinian Gaon".

33 F r i e d m a n , Jewish marriage contracts in the Palestinian tradition: documentsfrom tbe Cairo Geniza, Univ. of Pennsylvania Ph.D. thesis, 1969, 189.

34 "Various regulations and customs pertaining to the husband assuccessor to his wife" [in Hebrew], Mad'e Hajyahadut 1 (1926), 79-94.

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whose Jewish community was exposed to Palestinian influencein the Geniza period.

M.K. Friedman concurs with Assafs view and presentsevidence that the return of half the dowry to the bride's father"was fairly widespread in Palestine during the Geniza pe-riod."35 He found such a stipulation in nine Palestine Genizamarriage contracts. The stipulation in Nasi David's ketubbabmay therefore have had nothing to do with the fact that his wifewas a Karaite (a point not even noted by Friedman); rather, itwas in keeping with other Rabbanite ketubbot of the period.Friedman wonders whether those Geniza ketubbot he examinedwhich do not contain the half-half clause36 "are to be explainedin that the stipulation had become an assumed agreement, valideven when not written out."37 In other words, whether theclause was declarative or actually contractual. He leans towardsthe "declarative" option, i.e. that the half-half arrangement wasalready part of general law in Palestine in the eleventh century.In this he follows the lead of Assaf, citing the same proofs aswell.3*

The Elephantine half-half clause has bearing on one questionposed by Friedman but not by Assaf: "When the custom tofollow a compromise measure and return only half [instead ofthe whole, as stipulated by R. Yose in the Palestinian Talmud]was instituted we cannot say."39 The erasures and changes inthe relevant clause of BMAP z may show that the compromisearrangement existed side-by-side with a general law grantingrights of succession to husband or wife, as we find in the otherpapyri. In the Geniza period, the compromise may have existedalongside a tradition awarding the entire dowry to the wife'sfather, and was viewed merely as a variation thereof. Thiswould account for the fact that the Egyptian scribes wrote thatthe half-half clause was "in accord with the custom in Palestineas a stated in the Palestinian Talmud".40

In his work on the ketubbab, L.M. Epstein takes the changesin Jewish law an evidence for an evolutionary process ratherthan a conflict of traditions. He sees the original Israelite law as

35 Friedman, op. (it.36 Approximately the same number as those that contain it (ibid.).37 Ibid., 179.38 Assaf, 83, n. 7; Friedman, 179.39 Ibid., 188.• Ibid., 186.

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identical to the Babylonian law: The husband is "never giventhe right of succession to his wife".41 In time, "the husband assuccessor to his wife... made his way to the foremost positionby a series of legal changes."42 There then developed a "countertendency of the law"43 to limit the right of the husband assuccessor. R. Yose's stipulation, according to L.M. Epstein,must be viewed as one of those tendencies. Contrary to J.N.Epstein's analysis, L.M. Epstein sees it as "a Palestiniancustom... it is an attempt to establish a non-Jewish usage abovethe Jewish law ... The origin of this usage should be sought inthe Roman law."44 He presents the law of succession atElephantine, in the event of predecease without children, as thefirst step in the direction of enhancing the rights of the husbandover the bride's father as heir. But he knew only AP 15.45 BMAP2 before the erasures, in our interpretation, awards half thedowry to the slave Tamut's master, the legal analogue of thebride's father. The half-half clause is as problematic for L.M.Epstein's theory as it was for J.N. Epstein's legal history, andfor the same reason: the compromise clause may derive fromeither of two opposite legal traditions of succession and, indeed,seems to have coexisted with both of them. In Elephantine, inthe very same document after the erasures, we find the husbandas sole heir. In the Geniza period, we find the compromiseconsidered "in accord with the custom in Palestine", whichawarded the dowry to the wife's father. Furthermore, thediscovery of the half-half clause at Elephantine and its possibleantecedents raises doubts about L.M. Epstein's theory of aRoman origin for the Palestinian custom cited by R. Yose.46

The differing views on the nature and origins of succession inJewish law highlight the complexity of the issues.47 The

41 Contract, 126.42 Ibid., 125.« Ibid., 136.44 Ibid., 138; s e e n . 28.45 H e calls it "Papyrus G ."46 Boaz Cohen, Jewish and Roman law, N e w York 1966, 1, 336-7: "With

respect t o the disposal o f the dowry, where one o f the spouses predeceasesthe other, Jewish law provides as fo l lows: 'If [the wife dies first] then thehusband succeeds to the dowry. ' In Roman law (Rules o f Ulpian, 6:4-5)'When a w o m a n dies ... the dowry g iven by her father reverts to her {sic); afifth part o f the same for each child she leaves is retained by the husband ... Ifthe father is not l iving, the dowry remains with the h u s b a n d . ' "

47 It is beyond the scope o f this article to consider whether the theory o fborrowing or o f internal evolut ion is the historically true one. Cohen,

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comparison with the law of the papyri enables us to see theproblems in a different light and perhaps even offers someclarifications. This comparison does not imply any directoutgrowth of one system from the other, but confirms the factthat legal traditions in this part of the world were highlysyncretistic.

Addendum (see above, p, 195, note 8)

The argument that the son Pilti (mentioned in 1.13) is the successor toAnani and Tamut is not conclusive. Though he is called Anani's son inBMAP 4, the circumstances of his birth must have put him in an inferiorposition, if indeed he was an inheritor of Anani's. The clause in 1.11-12therefore does not take him into account.

"Concerning divorce in Jewish and Roman law", PAAJK xxi (1952), 3-34.quotes James Bryce, Studies in history and jurisprudence. New York 1901, 123:"The more any department of law lies within the domain of economicinterest, the more do the rules that belong to it tend to become the same in allcountries... The more the element of human emotion enters any departmentof law, as for instance that which deals with the relations of husband andwife... the greater becomes the probability that existing divergenciesbetween the laws of different countries may in that department continue..."The laws of succession would seem to cross both areas of interest.

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SUCCESSION IN ELEPHANTINE AND JEWISH LAW: BROOKLYN MUSEUM ARAMAIC PAPYRUS 2

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