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....

It is interesting to note also the endeavor of the Code to protect the debtor against undue pressure and maltreatment when seized for debt, evidently with a view of counteracting abuses that had crept into practice, and which had given creditors a merciless hold upon those who had been unsuccessful in their enterprises. The general point of view of the Code is still that a man who contracts a debt which he finds himself unable to pay is a criminal, even though free from criminal intent.

He is treated as such in later law codes (down almost to our own days), when debtors could be thrown into prison. No one has the right to incur an obligation which he is not certain of being able to carry out.

At all events if he takes a risk, he must endure the bitterest consequences. Apparently in Hammurapi's days a member of the debtor's household could be seized as a hostage by the creditor and kept as a prisoner in the latter 's house till a settlement was made, or he might seize the debtor's slave or his son, holding him as a hostage ; and if the one so seized dies while a prisoner through natural causes, there is no charge to be brought against the creditor (§ 115).

This was going pretty far, and evidently to prevent the possibilities of foul play, it is provided in what is clearly a later statute, modifying the earlier one, that if it can be shown that the one seized for a man's debt died through blows or other inhuman treatment (as, for example, starvation), then the old lex talionis comes into play, and if the debtor's son is the victim, then the son of the creditor is put to death, and if it is a slave, then one-third mina of silver is imposed as a fine, and the debt is forfeited (§ 116).

An unwarranted seizure for a hostage entails the same fine as in the case of a slave being seized and allowed to die through abuse one-third of a mina of silver (§ 114), but the debt is not forfeited, which shows that even in Hammurapi's code the advantage was always on the side of the stronger, except when fraudulent intent or deliberate injury can be proved.

From this point of view it is as much as could be expected that if a creditor, holding a debt of grain or money against a man, reimburses himself out of the debtor's granary without the latter 's consent, the creditor shall be called to account, return what he has taken, and because of his greed forfeit the total amount of his debt (§ 113).

The aim of the statute is clearly to protect the debtor against a wilful and cruel creditor, who even though he is entitled to what he has taken, commits a crime because not acting by order of the court. The statute implies that the proper procedure is to bring the case before a judge, and to secure an execution to seize the debtor's granary for the amount. It marks a considerable advance thus to insist upon legal procedure, even when there is no question of what is due to the creditor.

In another direction, the Code evidently aims to modify the hard condition of the debtor, who under the primitive view that wife and children are part of a man's chattels, could sell them for debt and, indeed, was in certain cases probably forced to do so. To curb the ancient practice without abolishing the underlying principle, the Code provides that if a man is held for debt and sells his wife, son or daughter or hands them over to the control (sc. of the creditor), he can do so for only three years. In the fourth year their freedom must be given them (§ 117). The provision, evidently made in the interest of the debtor's family, practically changes the legalized sale into an indenture, precisely as the old Hebrew law, desirous of abolishing slavery in so far as it affected members of the group, converts the sale into an indenture of six years. [1]

On the other hand, male or female slaves sold for debt may be further disposed of by the merchant into whose possession they pass. An exception, however, in the further interest of more humanitarian conditions, provides that a maid who has borne children to her master, if sold for debt, is to be ransomed by her master when he is able to do so.

Deposits with any one of gold or silver or anything else must be made in the presence of witnesses and the exact terms stipulated. Accordingly, a claim for a deposit without witnesses and written agreements is invalid. If these conditions are fulfilled, and the one with whom the deposit has been made disputes the claim, a fine of double the amount is imposed on the fraudulent trustee (§ 122-124).

The trustee is responsible for what he receives on deposit, and in case through his neglect, it is stolen or otherwise removed, he must restore the full loss to the original owner, but may reimburse himself if he succeeds in regaining the lost property ( 125) . A supplemental provision covers the case of a false claim on the part of one who has made a deposit, entailing a fine of double the amount of the claim, which must be set forth in detail before a decision is rendered as to its being false or not (§ 126).

Footnotes and references:

[1]:

Above p. 288.

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