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56

ISSN 1013-8471 Journal for Semitics 22/1 (2013) 56-89

OLD BABYLONIAN NIPPUR SOLUTIONSBETWEEN BENEFICIARIES IN A DECEASED

ESTATE DIVISION AGREEMENT1

Susandra J. Claassens-van Wyk

Department of Biblical and Ancient Studies

University of South Africa

P O Box 392

UNISA 0003

E-mail: [email protected](Received 29/01/2013; Revised 07/05/2013)

ABSTRACT

In Old Babylonian Nippur, the family division agreement from a deceased estateis an arrangement by beneficiaries to change co-ownership to sole ownership byre-allocating and trading their rights to the inherited deceased estate assets. Thisarticle is concerned with some of the unique solutions found in the Nippurdivision agreement where deceased estate assets are divided meticulously intoequal portions of sole ownership. Special attention is given to the in-na-an-búr-clause balancing the value of each deceased estate asset awarded to a beneficiaryas a quid pro quo in conjunction with the rule of preference-portion of the eldestbrother (giš

banšur zag-gú-lá síb-ta mu-nam-šeš-gal-šè) and casting of lots(giššub-ba-ta in-ba-eš).

INTRODUCTION

In the legal corpora of old Babylonian cuneiform texts, the recorded division

agreement in a deceased estate emerged: varied in simplicity, complexity and

solutions, and reduced to limitations of three-dimensional interpretational

perceptions.

2

Today we are left with the challenge of examining and theorising about

1 This article is a revised and updated version of a paper delivered at the South AfricanSociety for Near Eastern Studies (SASNES) congress held at the University of the WesternCape, Bellville, 6 September 2011 and is based on the findings in the author’s unpublisheddoctoral thesis (Claassens 2012 vol. 1 & vol. 2; esp vol. 1:51-71) In this article theSumerian terms are shown in bold font format. Akkadian and Latin terms are reflected initalics format.

2 This agreement is studied in the author’s (Claassens 2012 vol. 1 & 2) unpublished doctoralthesis. Forty-six elective case study texts were investigated from three old Babylonian city-

states: Larsa, Nippur and Sippar. The division agreements studied are texts in Larsa:



Old Babylonian Nippur solutions in a deceased estate division agreement 57

this old Babylonian division agreement captured on clay, which some four thousand

years ago had a special and practical meaning for the socio-economic family life of

Old Babylonian Nippur.3

The process of this agreement starts when a benefactor, the estate owner (usuallythe deceased father) dies, and his co-beneficiaries (usually his sons) experience

undesirable consequences of co-ownership regarding their communally-shared

inheritance. Unique solutions are designed and agreed upon in such a division

agreement. The end result of the agreement is to escape the problems of co-ownership

regarding their communally-shared inheritance and reap the benefits of sole ownership

of the agreed portions. After the conclusion of the oral agreement, some of the

consensual oral provisions of the agreement are incised, in accordance with scribal

traditions and the idiosyncratic style of the scribe, on a clay tablet with or without anenvelope. Today, this recorded agreement is called a recorded family division

agreement from a deceased estate.4

Charpin (1980) and Andersson (2008); Nippur: O’Callaghan (1954), Chiera (1922),Hilprecht (1909), Stone & Owen (1991); and Sippar: Schorr (1913), Dekiere (1994a;1994b; 1995), Goetze (1957), Pinches (1888) and Duncan (1914). These texts werecompared in terms of the “analysis-model” design to place the diff erent components of eachagreement into categories for analysis in Claassens (2012 vols. 1 & 2).

3 Nippur, the ancient city called Niffer today, lies near the city of Diwaniyah. To reachNippur in the 1880s it was necessary to travel by boat; however, in the Mesopotamianperiod, the city was situated next to the Euphrates River, and linked with Sippar in the northand Shuruppak in the south (Leick 2001:141).

4 The naming of this agreement is diverse. The legal notion is found all over the world,irrespective of time, place, and law tradition, custom and system. This agreement has notyet been studied in detail by ancient Near Eastern scholars regarding its theoreticalcomponents, as reflected in this article. When referencing it, scholars have assigneddifferent names to it, e.g., partition agreement, partition, allotment and division agreement(cf. Claassens 2012 vol. 1:1-2, Claassens-van Wyk 2013a:5-7). The case study in thisarticle is based on a division agreement studied by O’Callaghan (1954:137) who refers tothe division agreement as an “inheritance contract”. In South African law the agreement inthe previous century was called a family agreement and it is now referred to as aredistribution agreement, as established by South African court decisions and legislation(cf. Claassens 2004-2005). In other countries today, the name assigned to it is a distributionagreement, partition agreement, or division agreement (Claassens-van Wyk 2013a:5-7). Forpurposes of this article, the name assigned to this Nippur old Babylonian case studyagreement is “division agreement”. In addition, Claassens (2012 vol. 2:451-455) gives asynoptic discussion of the historical development of the division agreement from Roman-Dutch law to the South African redistribution (division) agreement. Claassens (2012 vol.2:455) concluded that there are some similarities with the old Babylonian division

agreement. However, she opines that it is still an open question whether these similarities



58 S.J. Claassens-van Wyk

The article is concerned with unique solutions found in an Old Babylonian Nippur

division agreement where deceased estate assets are divided into equal portions of sole

ownership. It is argued that in an Old Babylonian Nippur division agreement, the

beneficiaries as contractual parties agree to divide the deceased estate assets in equalportions, through practical solutions, within a framework of tradition-rules. The aim of

this agreement was to obviate undesirable consequences and situations of co-

ownership in the commonly-shared inheritance property and to enjoy the fruits of sole

ownership.

Special attention is given to the in-na-an-búr-clause which is used to balance the

value of each deceased estate asset awarded to a beneficiary as a quid pro quo in

relation to other beneficiaries’ awarded assets, and notwithstanding an ingenious

conjunction with the rule of preference-portion of the eldest brother (gišbanšur zag-gú-lá síb-ta mu-nam-šeš-gal-šè) and casting of lots (gisšub-ba-ta in-ba-eš).

In this article, some notes are introduced regarding old Babylonian Nippur’s

scribal school’s traditions. The scribal school’s curriculum, with special reference to

the division agreement, and the use of Sumerian as a written language medium, is

discussed.

Following this there is a summary explanation of what a division agreement and

its processes entail. Then a Nippur old Babylonian case study is presented, which was

a division agreement between three brothers, regarding the division of the

communally-shared assets from their late father, dSîn-îriš’s estate.5 The case study

background information is given. Thereafter, an abridged explanation is given of the

possible practical procedures used in the division process. This is followed by an

outline of practical implications regarding architectural and agricultural challenges,

which the contractual parties might encounter during negotiations, in the facilitation of

an equal division of bequeathed estate assets. Then, certain legal practices used in the

division of the common-shared inheritance are outlined, which include the in-na-an-búr-clause, rule of preference-portion of the eldest brother (giš

banšur zag-gú-lá síb-ta

are indicative of a collective consciousness or of a reception of law, i.e., the application oflaw rules and principles with a historical connection.

5 O’Callaghan (1954:137-143) includes in his article a transcription, translation and theplates of this division agreement, with some commentaries. However, in this article thedivision agreement is studied from a different perspective, by considering the practicalproblems encountered regarding architectural and agricultural challenges; and the solutions,

which brought about the division.




mu-nam-šeš-gal-šè) and casting of lots (gisšub-ba-ta in-ba-eš).6 Lastly, the solutions

are given, which the beneficiaries used in the case study, with their application of the

mechanisms and law practices in Nippur.

Additionally, the explanation of the solutions and mechanisms of this case studyare supplemented by illustrations in figures 2-4, which include an outline of the

houses, fields and specific assets allocated to each beneficiary in the agreement. Also

illustrated is a schematic outline of the family in Figure 1. The case study (Fig. 5) as a

reference is given, which includes the translation, transliteration and its plates (Fig. 6).

NIPPUR AND THE SCRIBAL SCHOOL TRADITION7

The scribal school curriculum

The family referred to in the case study is from Old Babylonian Nippur. Leick

(2001:143) considers Nippur to be “a town of academics, a Mesopotamian Oxford or

Cambridge” and goes so far as to refer to it as a city which owns a “reputation as

much for intellectual snobbery as for erudition in obscure disciplines”.8 This is shown

6 Another nine identified Nippur division agreements are used as supplementation in some ofthe similarities and a few exceptions of a division agreement in Old Babylonian Nippurregarding its practical solutions (cf. Claassens 2012 vol. 2:117-208). Cf., Chiera (1922:15-16, 51-54), Hilprecht (1909:20-21, 23-24, 150) and Stone & Owen (1991:87-89, 56-59, 60-63, 65-67).

7 Regarding the secondary sources of scholars on the physical tablets and typology and thearchaeological evidence cf. Robson’s (2001) categorisation, namely: the traditional studiesof scribal training; the recent focus. Kramer (1962), Lukas (1979), Driver & Miles (1952),Pearce (1995), Meier (1991), Falkenstein (1953) and Sjöberg (1976) outline the traditionalstudies of the school life. Cf. studies of scribal schools by Tinney (1998, 1999), Veldhuis(1997, 1997-98, 2000), Delnero (2010) and Gesche (2000), where these scholars focus onphysical tablets and not on the texts. Various contributions present archaeological evidence:Robson (2001) discusses scribal training in Nippur; Charpin (1986) and Brusasco (1999-2000) discuss scribal training in Ur; Delnero (2010) investigates the archaeologicalevidence for scribal education in the Mesopotamian cities of Isin, Kish, Babylon, and Uruk;Tanret (2002) studies the gala-maḥs’s house in Sippar Ammānum; and Stone (1987) studiescertain houses and scribal activities in Nippur. Cf. Claassens’ (2012 vol. 1:79 -104)discussions regarding the scribal school tradition with some notes on scribal schooltraditions regarding that of the division agreement.

8 It seems there was some snobbery at Nippur regarding the language of Sumerian predominantly used in the text. Leick refers to the “reputation of Nippur’s great learning”which is referred to in an Edubba text where a doctor from Isin cured a man from Nippurand the grateful patient invited the doctor to dine and feast with him, giving him directions

(Leick 2001:163). As he follows the direction and reaches Nippur, he asks a gardening




in the “unusually complex collection of written material”, mostly in Sumerian, which

was unearthed (Leick 2001:162). Even from its so-called “Tablet Hill” 60 000

cuneiform tablets were excavated, with a rich variety of Sumerian literature, including

the Sumerian Great Flood story. The “Tablet Hill” is considered a “campus for studentscribes and teachers” (Bertman 2003:28).9

From this material, it is evident that in Nippur numerous scribal schools called é-

dub-ba (tablet houses) existed, until the old Babylonian king Samsu-iluna’s reign,

when something catastrophic happened and Nippur’s population declined.10

In the Nippur scribal schools there were different stages of education and learning,

from the more elementary stages of basic handling of tablets and writing with the

stylus to a vast amount of “syllabaries” from the ABC, sing values, pronunciation; and

then in the later stages, lexical texts and mathematics (Leick 2001:162). Advancedsubjects such as the anu ittišu, a “compendium of law and legal phraseology”, to learn

to “compose a public inscription for a stele” and royal inscriptions etc. were taught in

these schools (Leick 2001:163).

woman further directions. When the doctor asks directions of her, she answers him inSumerian and the doctor believes that she must have cursed him. The tale ends with, “Whata fool he is! The students ought to get together and chase him out of Great Gate with their

practice tablets!” Thus, concludes Leick, the story wants us to “believe” that “evenvegetable sellers spoke Sumerian” (Leick 2001:164). Therefore, Leick (2001:165)concluded that Nippur had the reputation for “learning and literature”.

9 With this vast amount of clay tablets reflecting scribal school tradition in the OldBabylonian period, the school curriculum offers a diversity of subjects to choose forspecialisation in professions (Leick 2001:162-163). Robson (2001:48) opines that whencomparing the tablets found in Nippur in general with those of House F it seems that theorder of the school curricula differs, although the content seems to be the same. Accordingto her, Sumerian literature was the main subject of the “post -elementary education”

(Robson 2001:62). It is important to note that although there was no “standard curriculum”in Nippur, there was “a common fund or shared compositions upon which individualteachers drew according to personal taste or pedagogical preference” (Robson 2001:62). InHouse F the teaching of Sumerian dominated scribal education (Robson 2001:62). Thecurriculum of House F was mainly written in Sumerian and, according to Robson, it seemsthat these Old Babylonian schools in Nippur “were deliberately traditionalist, continuing topromulgate Sumerian while most administrative, business and legal documents werealready written in Akkadian” (Robson 2001:60).

10 Robson mentions that the Sumerian word for edduba means “tablet house” (after theAkkadian bīt ṭuppim). Robson refers to Volk, who was of the opinion that the edduba was“the house that distributes (-ba) tablets” or “house in which tablets are distributed” (Robson

2001:44 fn. 10).




Veldhuis11 (1997) studied Type II tablets and with this compiled the elementary

scribal curriculum of Old Babylonian Nippur; and Robson (2001:45) identifies the

named “Type II tablets” as the “most useful for recovering information about the

educational curriculum”.12 Veldhuis (1997:63) identified four phases of learning in the schools, of which

phase four (the last phase) consists of “model contracts and proverbs”.13 Claassens

(2012 vol. 1:92) opines that the scribes’ last phase of education and training focuses

on training in the drafting of division agreements, amongst other agreements and

proverbs. Claassens (2012 vol. 1:93 fn. 104) theorised regarding Nippur’s scribe

training in model contracts and proverbs. According to Claassens (2012 vol. 1:93 fn.

104), it seems that with the completion of the scribe’s training, he or she “ probably

mastered and proved insight” in the drafting of the division agreement. These

observations of the scribe’s insight and learned abilities are derived from her study of

ten Old Babylonian Nippur agreements. Claassens (2012 vol. 1:93 fn. 104) proposes

that some of the outcomes of the training might have been:

• an understanding of, and insight into, difficult terms and conditions of the

agreement between contractual parties;

• an ability to record in clear, specific and focused details, the “meeting of minds”

of the contractual parties by recording the “essential”14 and “natural terms”15 that

11 Veldhuis (1997:7-10) focused also on the Old Babylonian lists of trees and wooden objectsin Nippur.

12 The obverse of such tablets contains the lesson from which the students used to learn, whileon the left is the teacher’s lesson and on the right side, the “poor copy” that the studentswho wrote it used in order to rewrite the lesson (Robson 2001:45).

13 Veldhuis (1997:63) reflects the following in a table format: “Phase 1: writing techniqueswhich include elementary exercises (exercises in sign forms, single wedges); syllablealphabet B (sign forms), tu-ta-ti (syllabic values) and lists of personal names (e.g., dinana-teš ): basic Akkadian and Sumerian. Phase 2: thematic noun lists, the named fore-runners toUR5-RA = hubullu which include lists of trees and wooden objects; lists of reeds, vessels,leathers and metal objects; lists of animals and meats; lists of stones, plants, fish, birds andgarments; lists of geographical names and terms, and stars and lists of foodstuffs. Phase 3:advanced lists (of which the order is uncertain) which include metrological lists and tables;Proto-Ea (Sumerian readings of signs); Proto-Lu (thematic-acrographic: occupations,kinship terms, etc.); Proto-Izi; Proto-Kagal (acrographic: ordered by initial sign(s); Nigga;Proto-Diri (compound signs) and multiplication and reciprocal tables. Phase 4: introductorySumerian which includes model contracts (Sumerian sentences) and proverbs (literarySumerian).”

14 The “essential elements” are the prerequisite requirements and elements for an agreement

to constitute a division agreement. Cf. discussions by Claassens-van Wyk (2013b) and




the contractual parties agreed to;

• an ability to sequence logically, by chronology, the events and terms of the

agreement;

• an understanding of the whole design of the agreement’s details, terms andconditions, before recording it on a clay tablet, so that it reflects at least the most

important details of the agreement; and

• an ability to put related provisions together (cohesion).16

Claassens (2012 vol. 1:378) opines that in Nippur a “strict practical tradition” is

followed, where it seems “it is about doing the right thing in a traditional and practical

manner”. The recording of the provisions of the Nippur division agreement were done

“neatly”, with regard to the intrinsic details of the oral agreement of the contractual

parties’ names, status, birth order, comprehensive descriptions of assets, special terms,

non-contest, oath and witnesses clauses with seals. In addition, Veldhuis (1997:147)

theorises that Old Babylonian scribes “wanted a more complicated system and so

created it”. The reason for this was to “create a realm of high-status knowledge”.

The training of the Nippur division agreement in the last stage of a scribal school

shows that a person who acted as a scribe in the drafting of a division agreement

acquired the highest accomplishment of education and that the agreement was

considered to be a sophisticated written document.

Sumerian: the scribal school language

Veldhuis (1997:82-83) suggests that in a Nippur scribal school the “lack of attention

to Akkadian and the overdose of highbrow Sumerian” showed that the “Sumerian

language and tradition as completely as possible was considered to be all-important”.

He concedes that a student, although “introduced to the technique of writing”, was

quintessentially “introduced to the heritage of Sumerian writing and Sumerian

Claassens (2012 vol. 1:216-223). Cf. also Claassens-van Wyk (2013a) explaining thepractical and theoretical mechanisms of a division agreement.

15 The “natural elements” are the law practices the contractual parties choose to use in theiragreed conclusion of the provisions of the division agreement. Cf. discussions byClaassens-van Wyk (2013b) and Claassens (2012 vol. 1 & 2).

16 Claassens (2012 vol. 1:93 fn. 104) concluded with the remarks that: “the open question is:in instances of insufficient detail of the recordings, was it due to a specific school tradition,the lack of the scribe’s commitment to record the details or the influence o f apredominantly oral society, in which the written word was less important than the

performance of the legal act/agreement?”.




poetics” (Veldhuis 1997:83).

Sumerian’s importance extended even during the old Babylonian period, when

Sumerian survived as the written language in religious texts, literature and legal

documents, although not spoken (Postgate 1977:97). Sumerian as a written mediumwas compared by scholars such as Postgate (1977:98) and Leick (2001:28), to the way

that Latin was utilised for the medieval western world. Although Sumerian had

become obsolete as a spoken language, it was still used as a written one.

The on-going debate concerning the time of the discontinuation of the Sumerian

language increased the role of scribal schools as a learning institution (Woods

2006:111-112). For Woods (2006:112), it seems that schools were such institutions;

however, they still had a “functional sense of a scribal curriculum and through this a

vast amount of Sumerian literature in thousands of exercise tablets emerged as a by- product of scribal training”. He added that there was an oral component in training

whereby students were “instructed and drilled orally” by means of dialogues. The

language of instruction was Sumerian or a mixture of Sumerian and Akkadian.

Sumerian was even spoken in the schools in normal communication as part of the

“scholarly milieu” (Woods 2006:112). The majority of writings were in Akkadian,

although the language of learning was Sumerian. The children had to master the

Sumerian language and even a proverb stated dub-sar eme-gir15

nu-mu-un-zu-a a-

na-àm dub-sar e-ne, “a scribe who knows no Sumerian, what sort of scribe is he?”

(George 2005:2, Woods 2006:112-118).

Michalowski (2000:178) avers that we cannot simply ask the usual question:

“When did the language cease to be spoken?” or, as some would prefer to phrase it,

“When was it no longer understood in vernacular conversation?” Michalowski

(2000:178) concludes that “this is obviously a complex matter that req uires several

different modes of investigation”. It is therefore better not to ask this question, but

continue to investigate the “various lives” of the Sumerian language (Michalowski2000:198, Michalowski 2006). In ancient Mesopotamia, however, the long life of

written Sumerian and its coexistence with written Akkadian “guaranteed the

preservation and expansion of these cultural elements, albeit within limited social

circles”. Hence, “Sumerian was a movable feast” (Michalowski 2000:198).




DIVISION AGREEMENT EXPLAINED

The recorded division agreement on a clay tablet reflects only the last stage of the oral

division agreement between the co-owners, who acted in their capacity as contractual

parties. Hence, the division began after the death of the estate owner who had left hisestate to his beneficiaries.

At least from the information on the clay tablet it can sometimes be established

that the estate consisted of estate assets, which might include farm-fields, gardens,

houses, household goods, livestock and slaves. The late estate owner’s beneficiaries

received from their deceased benefactor’s estate an undivided share in ownership in

the bequeathed property. The problem was how to manage co-ownership of the farm-

fields, gardens, houses, household goods, livestock and slaves in undivided shares.

The co-owners would have to mutually agree to the usage, maintenance and profit-

sharing of the communally-shared inherited assets of which they had an equal,

undivided right. They could enjoy the assets together as owners, but no one would

have an exclusive right over the assets. They would acquire the property at the same

time and have the same title as “co-owners” of the communally-shared assets

(Claassens 2012 vol. 1:2).

It seems that harmony regarding co-ownership over some or all of the

communally-shared assets could sometimes be maintained. However, irreconcilableindifferences regarding the equal undivided possessions, usage and/or profit sharing

over the communally-shared assets often occurred. When reconciliation in any

partnership of co-ownership could not be reached, all that was left were the

impractical and undesirable situations caused by co-ownership. That is why Voet

(1955 vol. 2:10 2 2), a seventeenth century jurist, described co-ownership as “that

mother of disagreements and of carelessness” (Claassens 2012 vol. 1:2).17

Something had to be done to resolve the situation and to escape the perils of co-

ownership. For the beneficiaries to escape the perils of co-ownership there were threeoptions available: a sale, a lease, or a division agreement (Claassens 2012 vol. 1:3, 7-

8). The parties could sell some or all of the assets and divide the proceeds in

accordance with their proportionate share. The result would be that they alienated the

17 Voet (1955 vol. 2:10 2 2) gave a synoptic outline of the aspects of co-ownership anddiscusses the so-called Roman legal notion of the judicium familiae eriscundae, which canbe translated, in the widest context, as a division of a family estate or inheritance. Cf.

discussions by Claassens (2012 vol. 2:451-55) and Claassens (2004/2005).




assets to a third party (Claassens 2012 vol. 1:3, 8-9).

Alternatively, the contractual parties could mutually agree to lease some or all of

the assets and share in the proceeds of the rent income. At least they would retain co-

ownership of the property; however, they would not be able to use the property forpersonal use (Claassens 2012 vol. 1:3, 8-9).

Or, they could consent to a division agreement. In such an instance, there were

three main methods used to dissolve co-ownership in the common property: a typical

sale, a donation, or an exchange. With this division, to a certain extent a modification

of the original instructions or will of the benefactor occurred, where instead of a

proportionate share in an asset or assets, the beneficiaries, now the co-owners, agree to

transfer asset/assets only to one beneficiary. Some reshuffling of assets would take

place. In other words, by agreement through a typical sale, donation or exchange, theco-owners concurred that certain beneficiaries alienate their share in the common

property, whereupon one of the beneficiaries acquired all the shares of the inheritance

property, and enjoyed the fruits of sole ownership of the asset/s (Claassens 2012 vol.

1:3, 8-10).

How and when co-ownership was dissolved through a sale (bringing-in), a

donation or an exchange necessitated innovative solutions. Originality in problem

solving as regards impractical and undesirable circumstances occurred as a combined

result of the special nature of the assets in the re-allocation thereof: the bringing-in of

goods or cash, and the equalising of the division of the assets, according to the special

circumstances of each case (Claassens 2012 vol. 1:120-121). In this article, some of

these unique solutions from the old Babylonian Nippur case study are outlined.

In any event, in essence the division agreement was a practical solution sought by

beneficiaries in a deceased estate to obviate undesirable consequences and situations

caused by co-ownership in the common inheritance property, with the aim of enjoying

the fruits of sole ownership (Claassens 2012 vol. 1:3).

THE CASE STUDY

Introduction

This case study is a recorded family division agreement from a deceased estate

captured on clay. O’Callaghan (1954:137-138) transliterated, translated and named




this division agreement “a new inheritance contract from Nippur”.18

The tablets belong to the Collection of James B. Nies (NBC 8935) and are owned

by Yale University. The clay tablet is dated with the month and year of the king’s

reign: twenty-sixth year of Rîm-Sîn after the capture of Isin.19 The clay tablet is in good condition and complete, although certain parts are

slightly damaged, but the damaged parts are easily readable. The measurements are

10.7 centimetres in length and 5.2 centimetres wide. The signs are neatly incised in the

clay (O’Callaghan 1954:137).

In this section, some content information is given of this division agreement and

then the practical procedures in the division process are outlined. Following this are

the challenges the contractual parties need to overcome as background to the

understanding of some important legal practices the parties choose to follow. Lastly,the solutions used in this case-study are discussed.

Background information on terms and conditions of the agreement

The three brothers, Sîn-imguranni (the eldest),20 Tarîbum and Anu-pî- Ilabrat recorded

comprehensively the division of their communally-shared inheritance from their

deceased father’s estate, on to a clay tablet.21 See Figure 1 for the family outline.

Figure 1. Schematic outline of the family

The division of all the awarded assets to the different contractual parties is reflected on

this tablet. All three brothers divided by mutual agreement their communally-shared

inheritance.22 Each brother’s awarded assets are reflected in one section in the

18 Cf. Claassens’ (2012 vol. 2:119-129) unpublished doctoral thesis, which outlines theelements of this case study.

19 According to O’Callaghan (1954:139), this adds up to the fifty-sixth year of Rîm-Sîn.20 Obverse line 12 of the text.21 Figure 5: the text and its translation by O’Callaghan (1954:137-138). Reverse line 12 of the

text.22

Figure 5: as may be observed in reverse line 12 of text.

father’s estate: dSîn-îriš

brother dSîn-imguranni (eldest) brother Tarîbum

brother Anu-pî- Ilabrat




agreement.23 Detailed descriptions and measurements of assets referring to the

neighbouring properties of the parties are reflected in the text.24 There were witnesses

present, and the scribe and the seal engraver of the agreement are included as

witnesses.25 The contractual parties agreed that they would not in future lay claim toeach other’s assets,26 although no penalty is mentioned if one of them did not comply.

If there were a claim, the parties agreed that it must be heard by the king.27 The oath is

“heard” by the king, but his name is not mentioned.28 Seals were made for this

agreement; their impressions appear before the ḫala-lines of the two brothers Tarîbum

and Anu-pî- Ilabrat, signifying the importance of the agreement and the tradition of

excellence in Nippur.

The practical procedure process of a division agreement

In this estate, which contained fields, a house, and household possessions (possibly

stock, slaves and household goods), the procedure probably at first included the

compilation of an inventory. Each asset’s value would be calculated. Drawn-out

family discussions would take place; co-operation and practical reasoning during these

discussions were quintessential. Some offerings would probably have been made to

the deceased benefactor/parent (Claassens 2012 vol. 1:59, 61).29

23 dSîn-imguranni’s (the eldest) portions are reflected in the obverse, lines 1-14. Tarîbum’sportions: obverse 15-22. Anu-pî-dIlabrat’s portions are: obverse 23 and 24 and reverse,lines 1-8.

24 For instance in Figure 5: obverse, line 2: 1 ubu and 20 sar of fields of the Gula regionneighbouring lengthwise on Imgur-dSîn, and line 15: 5 / 6 sar and 4 1 / 6 gin of improved realestate, besides the house of Basa and Nur-ilishu; reverse, line 6: 1 small dibba door.

25 Figure 5: reverse, lines 15-22, especially lines 21 and 22. As later explained the contractualparties for this agreement made a seal and Na-bi-dŠamaš was the seal-engraver.

26 Figure 5: reverse, line 13.27 Figure 5: reverse, line 14.28 Figure 5: reverse, line 14.29 According to Bayliss (1973:119), from the evidence of a few curse formulae kudurrus

inscriptions referring to a beneficiary of the deceased estate and specific terminology, itseems that funerary cult duties are closely connected with the inheritance process, forinstance: “May (Ninurta) deprive him of an heir, a pourer of water”; “May (Ninurta) makehim forfeit his heir, his pourer of water”; “May (Ninurta) cause him not to acquire an heir, a

pourer of water” (Bayliss 1973:121). However, this “special ceremonial role of the eldestson” in the Old Babylonian period “cannot conclusively be connected with the funerarycult”. She suggests that the “funerary cult was a mechanism both for the perpetuation of theidentity of an individual after his death and for the alleviation of tensions, anxiety and guilt

experienced on the death of a relative”. Bayliss (1973:121) concludes that probably there




In Nippur, as in this case study, in the majority of the texts certain percentage of

the assets were awarded to the firstborn (gišbanšur zag-gú-lá síb-ta mu-nam-šeš-gal-

šè); therefore, the contractual parties had to establish the percentage awarded to such a

party and which portion of an asset was applicable (Claassens 2012 vol. 1:267-268;397). Thereafter, different assets would be segmented in different portions to all of the

contractual parties.

Apart from the “preference share”, another practical legal practice in Nippur

shown in this case study occurs in order to overcome a situation where a contractual

party received more value in assets. As a solution, the parties might agree that one or

more would bring in assets or money to equalise the division, in exact value portions

(in-na-an-búr) (Claassens 2012 vol. 1:264-265).

However, the dividing up of the communally shared inheritance necessitated co-operation between the contractual parties which sometimes resulted in difficult and

drawn-out negotiations. The fields in a division agreement were plotted out in

different sections, bearing in mind the agricultural values and needs of the contractual

parties. Concerning the house, sometimes the rooms in the house would avail as a

proportionate share. However, rooms in a communally-shared house could also be

portioned through rebuilding, or using wooden objects such as doors as aids for

segmentation of the communally-shared house into portions of sole ownership.30

The distribution of movable property posed less of a challenge; this was the case if

the collective group of movables such as slaves, wooden objects and livestock were

more or less the same in value and number. In instances of an uneven number and

value, the parties might agree to a bringing-in of an asset to equalise the division or

agree to a donation to one party.

Finally, in Nippur and in this case study, lots were drawn (gisšub-ba-ta in-ba-eš)

and the portions were allocated as sole ownership to the persuasive contractual party.

would be “moral pressure” on sons who succeeded their fathers. In no popular or royal cultsare there “any direct link with inheritance or with a special role of the eldest son ininheritance” (Bayliss 1973:125). Postgate (1992:98-99) states that from early dynastic timesuntil the Old Babylonian period, there was a common practice of burying the dead in thehouse; it seems that in the early periods this is the reason why the eldest son inherited thehouse. However, regarding this aspect of the religion, cult and offerings there are noreferences in the Old Babylonian period, although personal gods exist and references aremade to them in old Babylonian conversational greetings (Postgate 1992:99). Cf. discussionby Porter (2002) passim.

30

Cf. Claassens (2012 vol. 1:55-62).




This served the purpose of a proper appropriation of each section to each party.

After the allotment by lots of the pieces of agreed appropriate assets, the

contractual parties would sometimes record the agreement onto a clay tablet. Some of

the most important terms and conditions of the agreement, which the parties and thescribe considered as such, would be inscribed on a tablet, together with the contractual

parties and/or other involved persons’ seal impressions.

Architectural and agricultural challenges in conclusion of divisionagreement of the estate of the late Sîn- îriš

The architectural and agricultural factors are imbued with a sense of difficulty and

victory with the conclusion of the division agreement by the contractual parties. In this

section, some of these architectural and agricultural problems and challenges areoutlined. This serves as background information to the discussion of the innovations

brought upon the contractual parties to conclude the division agreement by

overcoming these challenges.

Various types of assets are divided into portions of sole-ownership, which include

agricultural portions of fields, architectural structures (e.g., houses), and movables

(e.g., various types of wooden objects, livestock and slaves).

First, the agricultural fields posed special challenges for contractual parties. A

farmer needs to have a good knowledge of the potential value of the field/land on

which he or she wants to farm. After all, a capital investment had to be made before

any benefits could be expected (Claassens 2012 vol. 1:61).31 In the greater time-period

of old Babylonian ancient Mesopotamia, the farmers had to manage on areas which

were mostly small, with limited inputs of resources, and could produce only enough

food to meet the needs of their families. Mesopotamians depended on the Tigris and

Euphrates rivers for farming (Claassens 2012 vol. 1:61).32 The silt left over from the

31 Chernoff (1992) investigates Tell Ifšar’s farming community in the first millenniumregarding society’s influence on farmers’ planting strategies. Chernoff opines, “orchardcrops and field crops require different capital investments and different patterns ofmanagement” (Chernoff 1992:218-219). See also Bogaard’s (2005:177-196) discussion ongarden agriculture and the nature of early farming in Europe and the ancient Near East.Hruška (2007:58-61) gives a summarised account of the type of labour and capitalinvestments made on arable soil and the continuous preparation of fields. Animals wereutilised in “soil- preparation technology” using a variety of different implements, humanand animal labour (Hruška 2007:60-61).

32 With regard to the importance of agriculture in old Babylonia to make a good living, an old

Babylonian proverb states that “The strong man lives from the price of his hire, but the




flooding of these rivers made the soil fertile. Irrigation produced an extra supply of

food. A “good” farmer would have known the soil type, the type of farming and

organisation required; the only profitable way to farm on fields and gardens was sound

economical farming and usage (Claassens 2012 vol. 1:61).Furthermore, good co-operation and a mindfulness of all the beneficiaries’ needs

as contractual parties were essential when plotting out units of assets, to ensure that

each party received an equal economic and monetary benefit when becoming a sole

owner through the casting of lots. Doing so had the advantage that in decision-making,

each participant purposefully, but with good intent, agreed on the proper appropriation

of each section, as any party could end up with any divided portion (Claassens 2012

vol. 1:61).

Thus, the whole process of the division of communally-shared inheritance entailedmore than casting a few lots (Claassens 2012 vol. 1:61). In instances of fields and

gardens, as well as houses, the co-operation was also complex.

In the case of the fields, they were plotted out into different sections. Even if the

property looked distributable, this was not necessarily the case, for fields in different

areas had different agricultural, monetary, usage and other values. Due to ground

formations and geographical structures, some areas in a field were better suited to a

certain kind of cultivation, whereas some areas were “poorer” or of lesser value than

others (Claassens 2012 vol. 1:61).

Regarding the house, to divide a house into sections had its own challenges to

overcome (Stone & Stone 1981:19).33 The term for house property was é-dù-a.

Sometimes it was only translated as a “house”, but regarding its structure there is more

to this term. Stone & Stone (1981:26) argued that this term’s translation is at best

“roofed floor space” for the following reason: wooden items such as doors, ladde rs

and locks add to the value of property. Even today in southern Iraq, the wooden roof

weak lives from the price of his children” (Langdon 1912:223). Langdon (1912:223) aversthat this points to the “frailty and helplessness of man compared with the fertility andindependence of nature”. The agricultural difficulties encountered in producing andmaintaining a harvest meant that only a “strong man” could manage to survive financiallyand avoid the harsh reality of “sell[ing] their children to obtain food to eat”. This meansthat the “strong man” must produce food from the fields and gardens, but cannot consumewhat he produces. He must sell it and live from his earnings (Langdon 1912:223).

33 Stone & Stone (1981:19) are of the opinion that the architecture of houses in ancientMesopotamia “reflects the social needs of its inhabitants and as such is a sensitive indi cator

not only of variations in wealth but of variations in social organization”.




beams are a “significant and valuable part of the house”. The é-dù-a were only small

plots. Therefore, the é-dù-a was only floor areas with a roof, while areas such as

courtyards and walls were not considered é-dù-a and part of the measurement (Stone

& Stone 1981:26). According to Stone & Stone (1981:19), some rebuilding of thehouse was necessary and extra compensation was noted expressly as compensation

and not an asset.34 Modifications can be noticed through division agreements and

several sales agreements (Stone & Stone 1981:19-21). Furthermore, the characteristics

of the building material are useful, as it is renowned for its “adaptability and ease of

construction” (Oats 1990:389).35 Therefore, a house could be “readily cut [up] and

shaped [and] secondary changes of plan such as the insertion of a new doorway, niche

or window are easily accomplished”. No skills were required for the erection of more

simple structures. Plenty of sunshine was required for the “drying process” and

although earth (mud) was readily available in great quantities, the same was not true

for water and straw. Great quantities of water were needed, especially for mixing

plaster, so this could have been a difficulty. The availability of straw depended on the

harvest of the previous year, so this too could have presented a problem (Oats

1990:389).

As regards movable property such as slaves and wooden objects, the division

would have been simpler. An easier assessment of the values could be made, and in

circumstances where the values were more or less the same and there were a number

of assets, it was easier to give each beneficiary an asset more or less the same in value

and number (Claassens 2012 vol. 1:62).

34 However, the area known as Mesopotamia was an unsuitable locality to erect buildings dueto the following reasons: it had an alluvial plain, and there were no suitable buildingmaterials present, except for the mud deposits that were obtained from the Euphrates andTigris Rivers (cf. Moorey 1999). Moorey (1999) reflects on surveys on archaeologicalevidence for craft and craftsmanship in the ancient Near East from 8000-300 BCE. Frompages 333-364, Moorey (1999) discusses various building materials, brick making,decorative techniques in mud brick layouts and different brickworks. These mud depositswere used to produce sun-dried bricks for private and public buildings. There was also ascarcity of energy supplies, so baked bricks were used only for drains, damp courses,bathroom floors and courtyard pavements (Moorey 1999:334). Bitumen obtained from Hiton the Euphrates, served as mortar in construction (Moorey 1999:335). It had the specialquality of being waterproof. Reeds and ribs of palm fronds were used for the roof andceilings, and other temporary structures (Frankfort 1950:98).

35 Oats (1990:388) studied texts on the “rectangular mould-made bricks of standard size” and mentions that they were “common building materials” in the ancient Near East which are

still in use today.




Different legal practices utilised in a Nippur division agreement36

Introduction

Factors that may influence the outcome of the division are unique family

circumstances, the specific nature of the assets and legal tradition practices. The

parties would, during the negotiations, use different mechanisms such as a sale,

donation or exchange to divide and trade their communally-shared asset/s. Thus, they

consensually agreed to trade their rights as co-owners in the communally-shared

asset/s in the inherited property, and in their discretion applied legal practices during

the division process.37

In Old Babylonian Nippur, there were three distinctive legal practices used to

bring about an equal division and to adhere to the region’s practices: in-na-an-búr-clause balancing the value of each deceased estate asset awarded to

a beneficiary as a quid pro quo, with which the contractual party received

something in addition to his inheritance, in order to equalise the division with

other beneficiaries;

the rule of preference-portion of the eldest brother (gišbanšur zag-gú-lá síb-ta mu-

nam-šeš-gal-šè); and

casting of lots (gisšub-ba-ta in-ba-eš).

In this section, attention is given to what these legal practices entail, with somereferences to their meaning and grammatical content, utilising lexicons.38

The in-na-an-búr-clause39

Where one contractual party received more value in terms of assets than the others, the

parties could agree to bring-in additional assets or money to equalise the division, in

36 Cf. Claassens (2012:224-231) and Claassens-van Wyk (2013a; 2013b), in which these legal

practices were categorised in a group named the “natural elements”. Distinction is madebetween essential elements of the agreement which constitute the prerequisite requirementsand elements present in the agreement to comply as a family division agreement from adeceased estate. Two other groups identified were the natural elements, which are the legalpractices, and the incidental elements, which constitute the written formalities of the scribalschool traditions and qualities of the written agreement.

37 In South African law the learned judge Dowling referred to a sale, donation and exchangeas “vehicles of redistribution”, and said that “some sort of reshuffle of assets in the estatewill have taken place” (Klerck v Registrar of Deeds 1950 1 SA 626 T 630-631).

38 Cf. study and conclusions of Claassens (2012 vol. 1 & 2) regarding the divisionagreements.

39

Cf. discussion by Claassens (2012 vol. 1:128, 175).




exact value portions (in-an-an-búr).40 During this legal practice, the contractual

parties agree to “buy” an asset, which results in such a contractual party becoming a

sole-owner of the asset (Claassens 2012 vol. 1:128). Different types of assets are used

to bring about the buying of the assets. However, it is of monetary value and mayinclude money, e.g., silver, or a physical asset, such as a slave or part of a house/field.

The buying of the asset involves the “buyer” using his/her personal assets in the

purchase of the communally-shared inheritance (Claassens 2012 vol. 1:128). The term

búr, in the context of the text, states that one contractual party will pay equally to his

brother/s.

In Sjöberg (1984:191, 193-194), the term búr as a verb, under the heading E,

number 4, denotes “to pay in exchange, to compensate”. In the Old Babylonian period,

these refer to “old Babylonian exchange and partition documents” (Sjöberg

1984:193).41 The “bringing-in” term, as reflected in the Nippur texts, usually in

variants contained in the text, as: šeš-a-ne-ne-ra in-na-an-búr, “he paid in balance to

his brothers” (Claassens 2012 vol. 1:175). Accordingly, in some other division

agreements, the values and assets were not divided up into equal portions; thus, a kind

of donation took place, while in yet other agreements an equal division of assets took

place, which showed that an exchange had taken place (Claassens 2012 vol. 1:175).

40 Cf. Hilprecht (1909:20-21) where Ur-Pabilsagga receives with Narubtum in equal parts thedivided portions of the deceased’s estate, because the búr -clause was applied. A field wasbrought in to equalise the value of the property for each party. Cf. Hilprecht (1909:25-27)regarding the clause, in-na-an-búr – line B13: taken in addition to his inheritance; and theclause, ni-ba-e-ne – line C2 : they shall divide into equal parts. Cf. Hilprecht (1909:23-24)the clauses, in-na-an-búr and dEn-lil-lù-shag-ge in-na-a[n-búr] (col 2: 22) translated asEllil-lushag has paid him. In this text there was an add-on of property to equalise thedivision in lines 11-13, regarding the share of Namaršu-lumur. This was the following: “theedadi-ship of Enlil and Ninlil for 20 days annually (the custodianship) of the Craftsmen’sgate for 121 /

2 days annually; because the temple offices were not sufficient, (the

custodianshi p) of the Duku gate for 12 days annually (was added)”. In another Nippur text(Stone & Owen 1991:60-63) in C3 lines 16-19 the clause is as follows: kišib ḫa-la-ba kišib

sag-ta nì-nam ì-lí-a-wi-li ù nì-nam denzu- še-mi-ke4 téš-a síg-ga-bi in-ba-eš-a. Accordingto the sealed tablet of the division (of inheritance), the items of Ili-awili and the items ofSin-šemi will be divided equally by lot.

41 mu é-e nu-ub-da-sá-a x gín x še kù-babbar PN1 PN2-ra in-na-an-búr translates as“because house for house had not the equivalent (values) (in-na-an-búr2), PN1 paid PN xshekels, x grains of shekels”, TIM 4 1, PBS 8/2, OECT 8 18, BE 6/2. Another example is, 6gín kù-babbar mu diri-é-a ù á-kúš (-ù)-é-a PN1-ke4 PN2-ra in-na-an-búr, translates as“PN1 has paid PN2 6 shekels of silver for the balance (in-na-an-búr) of the house and the

expenditure of work for the house”, TIM 4 4 (Sjöberg 1984:193).




The gišbanšur-zag-gu-lá-clause

The gisbanšur/zag-gú-lá síb-ta mu-nam-šeš-gal-šè-clause reflects the privileged

portion by right of preference share, usually by the eldest brother.42 The termgisbanšur/zag-gú-lá refers to a cultic table. Another term is síb-ta, which means the“additional share “which the eldest son receives.43

This will be done after it is decided which of the assets constitute the firstborn-

share or preferential portion awarded to the eldest brother. In the study of ten texts by

Claassens (2012 vol. 1:267-268), dealing with division agreements, legal tradition in

ancient Nippur seems to predominantly hold that the eldest son receives a firstborn-

share. Some assessment of the values of assets established that the share constitutes

ten per cent of the total of the deceased estate’s assets reflected in the division

agreement. This term occurs in seven of the ten Nippur texts that Claassens (2012 vol.

1, esp. 2012 vol. 2:117-208) studied.44 In the application of this legal tradition, the use

of the scribal school terms is as follows: gisbanšur and/or zaggulá and/or síb-ta which

are read together with mu-nam-šeš-gal-šè.

42 In Chiera (1922:15-16): gišbanšur-zag-gu-lá (zaggula-bowl), line 4: I gišbanšur-zag-gu-lá

IV gišliš - one zaggula-bowl given to Ududu, son of elder brother and part of other assetsmentioned. The text does not explicitly mention which assets is part of the firstborn-share(gišbanšur-zag-gu-lá). Cf. the texts in Hilprecht (1909:25-27), regarding the clausegiš

banšur-zag-gu-lá sib-ta, deriving from the inheritance of the predeceasedfather/grandfather of contractual parties. Line A3: gišbanšur zag-gú-lá sib-ta nam-šeš-gal-lá-šú translated as “one zag-gula bowl: as the privilege of the elder brother”. See anotherNippur text in Hilprecht (1909:23-24), in col 1:15-16: giš

banšur zag-gú-lá sib-ta nam-šeš-gal-lá-šú, translated as “1 zag-gula bowl the privilege of the elder brother”. Also in thesame text, in col 2:22 the following dEn-lil-lù-šag-ge in-na-a[n-búr], translated as Ellil-lushag has paid him (búr -clause). In Stone & Owen (1991:65-67) the giš

banšur-zag-gu-lá-clause does not occur, although the firstborn term síb-ta garzá a-na-me-bi in line 5 istranslated as “the preference portion of whatever temple offices there are”. Also in a text in

Stone & Owen (1991:60-63), in C1 line 16 the clause

giš

banšur-zag-gu-lá síb-ta nam-šeš-gal-la-šè occurs which is translated as “from the portion allotted to the eldest son”; in line6: ús-a-du síb-ta-na; and line 8 of C2: (all the above being the inheritance) portion of Ibbi-Enlil the eldest brother. In another Nippur text, the clause occurs in line 11:1 gišbanšur-zag-gu-lá síb-ta nam-šeš-gal translated as “ceremonial table is the preference portion of theeldest brother” (Stone & Owen 1991:87-89).

43 Cf. Claassens (2012:186-191) regarding discussion of the preference share, with sometextual and secondary references. Cf. Mendelshon (1959), Frymer-Kensky (1981), Postgate(1992), Harris (1992) and Leemans (1986).

44 Also in one Nippur text, in Stone & Owen (1991:65-67) no gišbanšur-zag-gu-lá was used,although the term síb-ta garzá a-na-me-bi in line 5 reflects the preference portion of

whatever temple offices there are (Claassens 2012 vol. 1:267-268).




In the PSD,45 the root word banšur means table, and this occurs in the texts during

the periods Early Dynastic IIIa, Early Dynastic IIIb, Old Akkadian, Ur III, Early Old

Babylonian and Old Babylonian. Also the written words: banšur, ĝešbanšur, banšúr,

ĝešbanšúr, banšúr, ĝešbanšùr, banšurx (URU x IGI) means “table”. The Akkadianvariant is paššūru. Another variant is banšur zaggula, denoting table, which can be

found in Old Babylonian texts. The terms are written as ĝešbanšur-zag-gu-la, ĝeš

banšur-zag-gú-lá, meaning “a cultic table”; while the Akkadian variant is paššūr

sakkî. Also found is banšur zagĝara which translates as table from the Old

Babylonian period. It is written as ĝešbanšur-zag-ĝar-ra meaning “a cultic table”; the

Akkadian variant is paššūr aširti (Claassens 2012 vol. 1:186-187).

Claassens (2012 vol. 1:190) considers the preference rule as a legal practice,

which the contractual parties in Nippur chose to apply. Although it seems that in Nippur, it serves as a construction “for the continuation of the patronage estate”.

Claassens (2012 vol. 1:190) advocates that caution should apply in considering this as

a general practice and that all the documents in a city-state and different time-periods

should reflect this practice as a general rule, before any assumption can be made that it

serves as such.46

The gisšub-ba-ta in-ba-eš -clause

In the Nippur agreements,47 lots were drawn and the portions were allocated as sole

45 Pennsylvania Sumerian Dictionary. http://psd.museum.upenn.edu/epsd/nepsd-frame.html.Accessed 5 February 2012 (Tinney).

46 Cf. discussions by Claassens (2012 vol. 1:190-191) under the heading “beneficiaries”regarding the position of daughters and the heading “adoption clause” where the estateowner, on a contractual basis, can deviate from the “normal” succession rules.

47 The Nippur text in Chiera (1922:15-16) reflects the giššub-ba-ta in-ba-eš-clause in line 22as [še-ga-ne-ne]-ta giššub-ba-ta in-ba-eš and translated as “they agree to divide up bylots”. In Hilprecht (1909:20-21) in C4: ur-a-sì-ga-bi in-ba-eš, translated as “have dividedinto equal parts”. Also in Hilprecht (1909:25-27) in line C2: ni-ba-e-ne, translated as “theyshall divide into equal parts”. In the text of Hilprecht (1909:23-24) in lines 46: šu-ri-a-biin-ba-e-eš and giš

šub-ba-ta in-ba-e-eš – and line 20 & 42 šu-ri-a-bi in-ba-e-eš, translatedas “with every share of a brother” and again “when parties mutually agree to division at theend of the agreement”. Also in line 46, še-ga-ne-ne-ta, translated as, “they mutually agreeto”. Stone & Owen (1991:65-67) in line 20 reflects the clause: giššub-ba-ta in-ba-eš, whichis an inheritance divided by casting lots. Stone & Owen (1991:60-63) show in C3 line 19the clause: giš

šub-ba-ta in-ba-eš téš-a síg-ga-bi in-ba-eš-a, which is translated as “will bedivided equally by lot”. In the text of Stone & Owen (1991:87 -89) in line 44 the clausegiššub-ba-ta in-ba-eš-še-ga-ne-ne-ta gišsub-ba-[ta in-ba]-eš, is translated as “divided

according to their agreement”, although these authors should have translated it as “they

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ownership to the persuasive contractual party.

The gisšub-ba-ta in-ba-eš-clause refers to a division by lots where the parties agree

to the division of the communally-shared property into portions of sole-ownership.

With the presence of this clause, the division of the different assets are divided moreor less equally. This gisšub-ba-ta in-ba-eš-clause is in most cases present together with

the šeš-a-ne-ne-ra in-na-an-búr clause which stated that one contractual party would

pay in the balance to his brother/s (Claassens 2012 vol. 1:176). Furthermore, the

division by lots clause is denoted by two different terms, namely the Sumerian termgiš

šub-ba-ta, which mostly also collocates with the terms še-ga-ne-ne-ta (in mutual

agreement) and in-ba-eš (to divide) (Claassens 2012 vol. 1:176).

The Sumerian term for division by lots, giššub-ba-ta, is reflected in PSD48 and it is

given as ĝeššub [lot] (in Ur III, Old Babylonian) writing as ĝeššub, meaning “lot, share”

with the Akkadian version isqu. Eleven distinct forms are attested: ĝeššub, ĝeš

šub-ba-

ta, ĝiššub-ba-zu, ĝeš

šub-ba, ĝiššub-ba-za, ĝeš

šub-e, mu-šub-ba ĝeššub-bi, ĝiš

šub-ba-ĝá, ĝiš

šub-ba-ni and ĝeššub-zu-šè. Under heading number 1, the term is translated as “lot,

share” (Claassens 2012 vol. 1:176).49 However, the Akkadian variant isqu translates as

“lot; share” in CAD I, isqu A, volume 7 (Oppenheim 1960:198-199, 202). It is a

subject, and under heading 1, may be explained as follows: (išqu, ešqu) it is a lot,

have divided up by casting lots”. 48 Pennsylvania Sumerian Dictionary. http://psd.museum.upenn.edu/epsd/nepsd-frame.htm.

Accessed 5 February 2012 (Tinney).49 This term is reflected in the following Old Babylonian texts in accordance with the

Pennsylvania Sumerian Dictionary at http://psd.museum.upenn.edu/epsd/nepsd-frame.htm,cited 5 February 2012 (Tinney); and Claassens (2012 vol. 1:176) has arrived at a definitionregarding which type of division agreement it entails, namely: Old Babylonian/Nippur[geš

]šub-ba šub a-an-ti-eš CBS 02295 6 is a family deceased division agreement betweenbrothers. Old Babylonian/unclear še-ga-ne-ne-ta geššub-ba-[ta in-ba]-eš MC 3, 51 44 is a

family deceased division agreement, containing a preference portion, wherein a fewallocations were made regarding temple offices. There are a number of Nippur familydeceased division agreements, wherein such allocations were made, regarding the holdingof such offices, for certain periods of time (cf. Nippur texts in Part C). OldBabylonian/Nippur geššub-ba-tain-[dab-bé-eš] SAOC 44, 35 11 is a family deceaseddivision agreement including an inheritance share-clause, ḫa-la-ba. OldBabylonian/unknown geššub-ba-ta in-ba-e-eš SAOC 44, 42 22 is a family deceaseddivision agreement containing the inheritance share ḫa-la-ba, wherein the eldest sonreceives a preference portion giš

banšur-zag-gu-lá,reading with še-ga-ne-ne-ta, the clauseof mutual agreement. še-ga-ne-ne-ta geššub-ba-ta in-ba-e-eš OECT 08, 17 46 is a familydeceased division agreement wherein the two brothers by means of the inheritance share

clause, ḫa-la, mutually agree to a division by lots (Claassens 2012 vol. 1:176).






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which as a device determines a selection cast by the beneficiaries (Claassens 2012 vol.

1:177). The Sumerian and Akkadian variant terms reflect different ways of regarding

the assignment of the objects. In the Akkadian variant, when looking at ussuqu under

esēqu, it “refers to the aspect of an assigned object”. With the Sumerian variant, theterm giš

šub-ba refers to the casting of a lot, which is literally wood, and this “indicates

the way in which these assignments were made, either in fact or in theory” (Claassens

2012 vol. 1:177).50

Solutions presented in the case study

The uniqueness of practical solutions used by contractual parties is shown through this

case study, wherein the contractual parties managed to divide complex estate assets

consisting of fields, a house, household goods and wooden objects by using

mechanisms such as exchange, money brought in from sales, and donations. The

mechanisms were supported by different legal practices, such as a preference portion

and casting of lots. Each family situation, as well as architectural and agricultural

landscape factors played an important role in the conclusion of the division agreement.

In the text, the sons of the deceased inherited various properties, which needed to be

divided. The eldest son’s portion is first recorded, which includes his agreed divided

portions and preference portion.51

In the case study, zag-gú-lá síb-ta mu-nam-šeš-gal-šè denotes the privileged portion by dSîn-imguranni, the eldest brother.52 Note that

the observed lines 4 and 9 mention “privilege” portion – síb-ta-na. In addition, take

note of the reverse line 13 gisšub-ba-ta in-ba-eš u4-kúr-šè lú-lú-ra – they have

divided by lot. A certain percentage of the preference portion first had to be set aside

before the actual division could take place; thereafter the assets could be apportioned

evenly among the contractual parties. O’Callaghan (1954:139) calculates the

50 There is a “nuance of fate” in the Sumerian proverb giššub ús-sa-ab, which translates as“accept your lot” (PSD http://psd.museum.upenn.edu/epsd/nepsd-frame.htm. Accessed 5February 2012 (Tinney); Claassens 2012 vol. 1:178). Kitz (2000) investigates the sameAkkadian texts, and compares them with Joshua Chapters 13-19 of the Bible. She contendsthat “lot casting legally dissolved the state of undivided inheritance and that there arecertain similarities between the Mesopotamian texts and procedure of Joshua Chapters 13-19, signifying a borrowing and influence towards each other”. Cf. also Westbrook(1991:118-141) regarding division agreements in biblical law.

51 See See Figure 4, obverse lines 1-3: 17 1/4 gin improved real estate; 1ubu and 20 sar fieldsof Gula region; 10 sar fields of Gula region and 1 tray of honour.

52 d

Sîn-im-gur-ra-an-ni šeš -gal.




preference portion for the eldest brother to be one tenth of the paternal estate.

Also regarding the possible preference share or donation was a bakery53 – an oven

that constituted the part of the house having a better monetary and usage value which

was allocated to the eldest brother. It was an important family commodity and in thiscase study well-situated for the whole family to use, if the eldest would have allowed

it, which he probably would have in his duty as the eldest of the brothers. 54 In Figure

4, it is clear that apart from this “donation” of the bakery and a smaller portion of the

real estate to the eldest brother, all the other portions of exchange among the brothers

are more or less the same. In Figure 4 the eldest brings-in a 1 dibba door whose value

is calculated as 5/6 of a silver shekel. This could probably be for the bakery section

which was donated to him by the other brothers and the eldest then agreed to pay at

least for the renovations of the divided portion.The second section of the text concerns the portion of the second brother,

Tarîbum. In Figure 4, it is clear that Tarîbum’s and the younger brother Anu-pî-

Ilabrat’s divided portions are equal. This division seems problematical when looking

at Figures 3 and 4 regarding the house and fields divided portions, especially when

taking cognisance also of previous our discussion of the challenges posed by

architecture and agricultural challenges due to, for instance, the house structure and

ground formations, and the value of different pieces of land, as well as the needs of the

parties.

With the division of the youngest son Anu-pî- Ilabrat’s portions, the in-na-an-búr-

clause was also utilised. Furthermore, the third brother, Anu-pî- Ilabrat, was at the

time of his father’s death not married and to remunerate him for his terḥatum not

received in the paternal estate, the brothers agreed that he would not share in the

responsibilities of the debt of the paternal estate. O’Callaghan (1954:141) refers to the

Collections of Hammurabi (Codex) paragraph 16655 where a division of the paternal

estate took place between the heirs and sons of the deceased. In the case when the“minor” son did not take a wife, the other brothers would set aside a portion of money

as a “purchase price” (terḫ atum) in order to secure a wife for the minor son. In the text

53 Obverse line 6.54 See Figure 3 on the right side of the house-outline, between two other portions.55 Paragraph 166 translated by King (http://avalon.law.yale.edu/ancient/hamframe.asp). If a

man take wives for his son, but takes no wife for his minor son, and if then he dies: if thesons divide the estate, they shall set aside besides his portion the money for the “purchase

price” for the minor brother who had taken no wife as yet, and secure a wife for him.




(reverse lines 9-10) money was not set aside, although the third brother who did not

have a wife would not be held responsible for the debts of the paternal estate. This

O’Callaghan (1954:141) considers it as a “practical procedure”.

In this agreement, the beneficiaries of their father’s estate use the divisionagreement as a method and unique arrangement to re-allocate and trade their rights in

the communally-inherited property. Hence, in this case study, co-ownership is

changed to sole ownership, through the meticulous estimation of the portions of sole

ownership, utilising methods of trading by means of barter, donation and sale, proper

appropriation of each section by the casting of lots, while awarding a preference share

to the eldest brother.

SUMMARY

In the old Babylonian Nippur division agreement there are some unique arrangements

by beneficiaries to change co-ownership to sole ownership by re-allocating and trading

their rights in the inherited deceased estate assets.

First, it is shown that the recorded old Babylonian Nippur agreement reflects the

scribal school traditions of its city-state and that Nippur was considered “a town of

academics, a Mesopotamian Oxford or Cambridge” renowned for its “intellectualsnobbery as for erudition in obscure disciplines” (Leick 2001:143). In its scribal

schools called é-dub-ba, the school curriculum consists of different stages of

education and training (Leick 2001:163, Veldhuis 1997:63). In these schools the

training in the drafting of a division agreement was only given in the fourth and last

stage of education (Veldhuis 1997:63). Drafting a division agreement seems to be the

highest accomplishment of education and the agreement was considered a

sophisticated written document.

In addition, Nippur follows a “strict practical tradition” when looking at thequalities of the division agreement as a precise, neat and comprehensive recording of

the intrinsic details of the oral agreement (Claassens 2012 vol. 1:93 fn 104, 378). In

Nippur, it seems that “it is about doing the right thing in a traditional and practical

manner” (Claassens 2012 vol. 1:378).

Nippur’s uniqueness extended further with Sumerian as the written language,

which had the same status as Latin in the medieval western world, notwithstanding

other spoken dialects and languages, of which Akkadian was the main tongue




(Veldhuis 1997:83, Woods 2006:111-112, George 2005:2).

Apart from the important influence of a strict disciplined Nippur scribal school

tradition and its “overdose of highbrow Sumerian,”56 the contractual parties devise

ingenious arrangements for the conclusion of a division agreement. However, thecircumstances and choices regarding these arrangements were imbued with

difficulties.

In an attempt to highlight some practical legal solutions which occur in old

Babylonian Nippur, the article addresses the practical procedures followed by the

parties, as well as the difficulties posed by personal circumstances of the parties, and

architectural and agricultural challenges during the division process. This serves as

background to the discussion of the innovations brought upon the contractual parties

to conclude the division agreement by overcoming these challenges and difficulties.The practical procedure consists of the compilation of an inventory, drawn-out

family discussions, co-operation and practical reasoning, with some offerings to the

deceased parent (Claassens 2012 vol. 1:59, 61). The different assets will be segmented

in different portions, keeping in mind portions allocated as a preference share to the

eldest brother. Lots were drawn as a proper appropriation of each section to each

party. Sometimes, the agreement might be recorded onto a clay tablet.

During this division process, the parties should give recognition of the soil type,

the type of farming and organisation required, for this is the profitable way to farm

(Claassens 2012 vol. 1:61). Good co-operation and a mindfulness of all the parties’

needs should be taken into account. Also, different areas had different agricultural,

monetary, usage and other values. Ground formations and geographical structures in

some areas of a field were better suited to a certain kind of cultivation. Houses needed

to be divided into sections, sometimes rebuilding of the house or houses was necessary

and extra compensation was expressly noted (Stone 1981:19-21, Oats 1990:389).

With this as background, the case-study is introduced of the division agreementbetween three brothers dSîn-imguranni (the eldest), Tarîbum and Anu-pî- Ilabrat who

divide their communally-shared inheritance, from their father, dSîn-îriš’s estate. The

brothers used the mechanisms of a sale (“bringing-in”), donation and/or exchange

mechanisms to alter their co-ownership of the communally-shared inheritance to sole

ownership. They ingeniously constructed a plan to firstly plot out the complex estate

assets consisting of fields, house, household goods and wooden objects and take into

56

Cf. Veldhuis (1997:83).




account some money brought in for a dowry. After the apportionment of the

preference share to the eldest son, the contractual parties consensually agree to award

the different allocated portions by means of the casting of lots. Also in the division

process, the brothers managed to successfully utilise three distinctive legal practices,to bring about an equal division and to adhere to the region’s practices:

• in-na-an-búr-clause balancing the value of each deceased estate asset awarded to

a beneficiary as a quid pro quo, by which the contractual party receives something

in addition to his inheritance in order to equalise the division with other

beneficiaries

• the rule of preference-portion of the eldest brother (gišbanšur zag-gú-lá síb-ta mu-

nam-šeš-gal-šè)

• casting of lots (gisšub-ba-ta in-ba-eš)The practical solutions used by the contractual parties in the division of the

communally-shared inheritance shows that the division agreement was a valuable tool

used in old Babylonia Nippur, to re-allocate communally shared ownership into

precise equal portions of sole-ownership, taking into account the parties’ needs,

architectural and agricultural factors and chosen legal practices and rules.

Figure 2. Schematic outline of the house of late father dSîn-îriš and portions awarded to hissons (Claassens 2012 vol 1:70)




Figure 3 (above). Schematic outline of the fields of late father dSîn-îriš and portions awardedto his sons (Claassens 2012 vol. 1:70)

Figure 4 (below). Outline of paternal assets distributed between beneficiaries of estate bymeans mechanisms of donation, exchange and sale (Claassens 2012 vol. 1:69)

Solution dSîn-imguranni

(eldest brother)

Tarîbum

(brother)

Anu-pî-dIlabrat

(brother) Preferenceportion

17 1/4 gin improved realestate1 ubu and 20 sar fieldsof Gula region10 sar fields of Gularegion1 tray of honour

Donation 2/3 sar and 1/2 gin improved real estate

5/6 sar and 1/6 gin improved real estate

5/6 sar and 5/6 gin improved real estate

Exchange 1 iku and 10 sar of fieldsGula region 1 iku and 10 sar fieldsof Gula region 1 iku and 10 sar fieldsof Gula regionExchange 1 iku of fields of Gula

region1 iku and 10 sar offields of Gula region

1 iku and 10 sar offields of Gula region

Donation“preference”

10 1/3 gin improved realestate, a 'bakery,'

Exchange 30 sar fields Gula region 30 sar fields Gularegion

30 sar fields Gularegion

Exchange 1 door spruce wood ofentrance of papahhum

1 door spruce wood ofpalace

1 door spruce wood ofentrance of house

Bringing-in 1 dibba door,- whose




Solution dSîn-imguranni(eldest brother)

Tarîbum(brother)

Anu-pî-dIlabrat(brother)

of money /Sale

value is 5/6 of a silvershekel

Exchange 1 tray 1 tray 1 trayExchange 1/3 household

possessions1/3 householdpossessions

1/3 householdpossessions

Bringing-inof money

/Sale

“6 silver shekels, byreason of the surplus ofthe house and the workput in on the house,Taribum has paid inbalance to Anu-pi-d

Ilabrat. By reason ofAnu-pi-dIlabrat's havingno wife, the debt of hisfather's house he doesnot share”

Figure 5 (below). Transcription and translation by O’Callaghan (1954:137-138)

Obverse Translation Obverse1 17 1 / 4 gín igi-4-gál é-dù-a da é[Tar-ri] –

bu-um17 1 / 4 gin of improved real estate besidethe house of Tarîbum

2 1 ubu 20 sar a-šà a-gàr gu-la uš-a-du Im-gur-dSîn

1 ubu and 20 sar of fields of the Gula

region neighbouring lengthwise on Imgur-

Sîn,3 10 sar a-šà a-gàr gu-la uš-a-dum Ta-ri-

bu-um10 sar of fields of the Gula regionneighbouring lengthwise on Tarîbum

4 1 g banšur zag-gú-lá síb-ta mu-nam-šeš-gal-šè

1 tray of honour(?) (is the) privilegedportion by right of primogeniture

(preference share);5 / 3 sar 1 / 2 gín é-dù-a da é síb-ta-na / 3 sar and 1 / 2 gin of improved real estatebeside the house of his privileged portion,

6 10 1 / 3 gín [é]- dù-a é im-šu-rin-na da éḥa-la-ba-na

10 1 / 3 gin of improved real estate, a“bakery,” beside the house of this, hisinheritance,

7 1 iku 10 sar a-šà a-gàr gu-la uš-a-du síb-ta-na

1 iku and 10 sar of fields of the Gularegion neighbouring lengthwise on hisprivileged portion,

8 1 iku a-šà a-gàr gu-la uš-a-du Im-gur- 1 iku of fields of the Gula region




dSîn neighbouring lengthwise on Imgur-dSîn,9 30 sar a-šà a-gàr gu-la uš-a-du síb-ta-na 30 sar of fields of the Gula region

neighbouring lengthwise on his privilegedportion,

10 1 g ig mi-rí-za ká-é-pa-paḫ 1 door of spruce(?) wood of the entranceof the papahhum,

11 1 g banšur níg-gú-na é-a igì-gál-bi 1 tray, one third of the householdpossessions,

12 1 g ig-dib-ba kug-bi 1 / 2 gín 1 / 3 gín kù-babbar

1 dibba door,- whose value, / 6 of a silvershekel,

13 šeš-a-ne-ne-ra in-na-an-búr he paid in balance to his brothers-14 ḫa-la-la Sîn-im-gur-ra-an-ni šeš-gal (is) the inheritance portion of Sîn-

imguranni, the oldest brother.

15 / 6 sar 4 gín igi-6-gál é-dù-a / 6 sar and 41

/ 6 gin of improved realestate,16 da é Ba- ṣa-a ù Nu-úr-ì-lí- šu beside the house of Basa and Nur-ilishu,17 1 iku 10 sar a-šà a-gàr gu-la uš-a-du

dSîn-im-gur-ra-an-ni1 iku and 10 sar of fields of the Gularegion neighbouring lengthwise on Sîn-imguranni,

18 1 iku a-šà a-gàr gu-la uš-a-du dSîn-im-gur-ra-an-ni

1 iku of fields of the Gula regionneighbouring lengthwise on Sîn-imguranni,

19 30 sara-šà a-gàr gu-la uš-a-du dSîn-im-gur-ra-an-ni

30 sar of fields of the Gula regionneighbouring lengthwise on Sîn-imguranni,

20 1 g ig mi-ré-za é-gal 1 door of spruce(?) wood of the palace,21 1 g sbanšur níg-gú-na é-a igì-gál-bi

--- -------- SEAL ----------

1 tray, one third of the householdpossessions--- -------- SEAL ----------

22 ḫa-la-ba Ta-ri-bu-um šeš-a-ni (is) the inheritance portion of Tarîbum, hisbrother;

23 / 6 sar / 6 gín é-dù-a da é Ur- Šu-bu-lá / 6 sar and / 6 gin of improved real estate

beside the house of Ur - Shubula,24 6 gín kù-babbar mu-dirig-é-a 6 silver shekels, by reason of the surplus

of the houseReverse Translation Reverse

1 ù á-kúš- é-a Ta-ri-bu-um-ke4 and the work put in on the house, Tarîbum2 Anu-pî- Ilabra-ra in-na-an-búr has paid in balance to Anu- pi- Ilabrat.3 1 iku 10 sar a-šà a-gàr gu-la uš-a-du Ta-

ri-bu-um1 iku and 10 sar of fields of the Gularegion neighbouring lengthwise onTarîbum

4 1 iku sar a-šà a-gàr gu-la uš-a-du Ta-ri- 1 iku of fields of the Gula region




bu-um neighbouring lengthwise on Tarîbum5 30 sar a-šà a-gàr gu-la uš-a-du Ta-ri-bu-

um30 sar of fields of the Gula regionneighbouring lengthwise on Taribum,

6 1 g sig mi-rí-za ká-é 1 g sif-dib-ba tur-ra 1 door of spruce(?) wood of the entrance

of the house, 1 small dibba door,7 g sbanšur níg-gú-na é-a igì-gál-bi

--- -------- SEAL ----------1 tray, one third of the household goods------- -- SEAL ----------

8 ḫa-la-ba Anu-pî-dIlabrat šeš-a-ni (is) the inheritance portion of Anu- pî- Ilabrat, his brother;

9 mu Anu-pî- Ilabratdam nu-un-tug-a by reason of Anu-pi- Ilabrat's having nowife,

10 ur5-ra é ad-da-na-ka nu-ba-e the debt of his father's house he does notshare;

11 šeš-a-ne-ne ba-ani-ib-ge4-ge4-ne his brothers shall not raise claims againsthim.12 ibila Sîn-îriš -ke4-ne še-ga-ne-ne-ta The heirs of Sîn-îriš in mutual agreement

have divided by lot.13 gisšub-ba-ta in-ba-eš u4-kúr-šè lú-lú-ra In the future one man against the other

shall not raise any claim;14 inim nu-um-gá-gá-a mu-lugal-bi in-pà by the then king he has sworn it.15 igi dSîn-e-ri-ba-am dumu Ṣ i-lí-dNin-urta before dSîn-eribam, the son of Silli-

Ninurta;16 igi Ì-lí-i-din-nam šeš-a-ni before Ili-idinnam, his brother;17 igi Ìb-qá-tum dumu A-ba-En-líl-gim before Ibqatum, the son of Aba-Enlil-gim;18 igi Nanna-tum dumu Gìr-ni-ì-sig6 before Nannatum, the son of Girni-isig;19 igi Ša-gi-iš -ki-nu-um dumu E-tè-ia-tum before Šagiš-kinum, the son of Eteiatum;20 igi A-pil- Sîn dumu Migir- Nin-urta before Apīl-Sîn, the son of Migir-Ninurta;212223

igi Na-bi- Šamaš bur-gul igi En-líl-mas-su dub-sar itu ab-è mu ki-26-ús-sa

before Nabi- Šamaš, the seal engraver;before Enlil-massu, the scribe.In the month of Tebetum, the 26th yearsince

24

25

Ri-im- Sîn lugal-e

[Í]-si-inki ba-dib-ba --- -------- SEAL ----------

Rīm- Sîn, the king

captured Isin.--- -------- SEAL ----------

1 Sîn-im-gur-ra-ni2 Ta-ri-bu-um3 Anu-pî-dIlabrat4 dumume dSîn-îriš

Sîn-imguranniTarîbumAnu- pî- Ilabratthe sons of dSîn-îriš




Figure 6. Obverse plate Figure 7. Reverse plate (O’Callaghan 1954:142) (O’Callaghan 1954:143)

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