The civilization of Babylonia and Assyria

Its remains, language, history, religion, commerce, law, art, and literature

by Morris Jastrow | 1915 | 168,585 words

This work attempts to present a study of the unprecedented civilizations that flourished in the Tigris-Euphrates Valley many thousands of years ago. Spreading northward into present-day Turkey and Iran, the land known by the Greeks as Mesopotamia flourished until just before the Christian era....

The two large fields of activity in ancient Babylonia were agriculture and commerce. In the endeavor to regulate on an equitable basis the obligations resting upon those who own and those who rent fields for purposes of cultivation, as in the complications arising from contracts and agreements entered upon by merchants and money lenders, the code is equally explicit. A few extracts from the sections dealing with these phases of activity will suffice to illustrate the principles underlying the regulations.

In renting fields for cultivation, the stipulation was in general (a) a return through a percentage of the yield, according to the size of the property, calculated on an average crop and applying to both fields and date-tree orchards, or (fc) through a division of the yield in terms agreed upon, with further special provisions in the case of virgin fields. The general term of rent was for one year, except in the case of virgin soil where the term was usually for three years. [1]

The code provides that in case the failure of the crop can be traced to the neglect of the tenant, the latter is responsible for the share according to the contract, on the basis of the yield in adjacent fields; and if in addition it is shown that he has not even cultivated the field, he must till and harrow it before returning it to the owner (§ 42-43) . Similarly in the case of a virgin field, rented out for three years, if the tenant neglects to carry out his obligation to till it properly, he must return the field in the fourth year hoed and harrowed, and hand over to the owner a return on the basis of ten Gur for every ten Gan [2] (§ 44).

If, on the other hand, the failure is due to causes beyond his control an inundation or lack of sufficient rain the tenant is not obliged to make any return for that year, and a new contract is made for the ensuing year (§ 48). If, however, an inundation occurs, ruining the produce of the field after the tenant has already paid the share of the crop due to the owner who presumably therefore is entitled to the first yield the tenant must bear the loss (§ 45).

Pasturing sheep in a field without an agreement and without consent of the owner entails as a fine a return of twenty Gur of grain for each ten Gan, or double the amount of the ordinary rate of return for letting out a field for cultivation; and under aggravated circumstances when the owner of the flock deliberately turns his flock into another's field, sixty Gur for each ten Gan, the assumption in the former case being that the sheep strayed into another's field (§ 57-58).

In the case of money obtained as a loan with a field as security, the interest may be paid in the yield or directly according to the usual rate of interest. If the latter is stipulated and the debtor cannot pay cash, then he must pay from the crop at the market rate of its value ; nor can the obligation in either case be avoided if the crop is a failure.

The contract is valid even though it is stipulated that the interest is to be paid in the crop of that year. The basic principle is throughout that agreements must be made in good faith on both sides, and that exemption from obligations can only be claimed if circumstances beyond control arise, and then only if the agreement is of such a character as to justify the assumption that the agreement was not to be kept in such a contingency.

This principle is well illustrated in a series of laws to regulate the relationship between a wholesale merchant and his retail agent who acts as a salesman or negotiator. When the transaction is directly in cash which the agent is to use in mercantile enterprises, the latter is to hand in a 'detailed account, and interest is to be charged according to the length of time for which the money is used (§ 100), [3] In other words it is not an ordinary loan for a stipulated time, for which no special provision need be made, but an agreement with some one acting as the representative of the merchant.

The responsibility rests upon the agent, who takes all risks except that of being robbed. If he swears an oath to this effect, he is free of obligation (§ 103), but failure of the enterprise through any other cause entails a fine of double the amount received (§ 101). This seems hard and it is strange that the law should not have been content with the return of the capital plus the interest.

One suspects that such a provision is a survival of the period when transactions of this kind involved great risks on the part of the merchant who was thus to be protected against fraud by the agent, who could easily pretend not to have been successful. In accord with this we find a fine of threefold the original sum imposed as a fine in case the agent is convicted of fraudulent intent (§106).

On the other hand, the agent is protected against any improper advantage being taken by the merchant by a written account of what he takes on commission grain, wool, oil or anything else and by taking a receipt duly sealed in the presence of witnesses for the money which he returns to the merchant (§ 104), though it is also stipulated that failure to take such a receipt does not oblige the agent to pay it again if he can prove that it has been paid (§ 105) a stipulation which impresses one as a later judicial decision rather than as a logical inference.

If fraudulent intent is proved against the merchant, the latter must refund as the fine six times the amount paid by the agent (§ 107). In case the money is given to an agent as a favor, by which presumably is meant that the agent does not take it as his risk, in case of failure to carry out the enterprise, only the principal need be returned (§ 102).

This stipulation again impresses one as of later origin to obviate the earlier and entirely too severe law which placed all the risks on the agent. In this way the agent could choose the conditions on which toe might act for another, or at all events the opportunity would be afforded of avoiding the consequences of the earlier law, provided an express stipulation was made that the agent received the commission "as a favor" which must be regarded in this instance as a technical term to designate a commission without incurring all the risks in case of failure of the enterprise.

Footnotes and references:

[1]:

See further below pp. 327 and 349.
 

[2]:

A Gur is about 120 litres and a Gan about 6% Ka. or 25 acres. The amount is, therefore, based no doubt on the average yield, 1200 litres for 250 acres, i.e., about twenty per cent, of the total crop.
 

[3]:

There is a large gap just before this paragraph so that the enumeration of paragraphs from this point on is merely approximate.

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