17 Oral Establishment of Dowry in Jewish and Roman Law: D'Varim Haniknim Ba'Amira and Dotis Dictio

RANON KATZOFF (BAR ILAN)*

Some of the most insightful pages on the beginnings of the Roman institution of dotis dictio were written over two decades ago by Alan Watson.¹ He pointed to the exceptional character of the institution—unilateral obligation arises from speech without ritual or formality—and to the exceptional circumstances— relations based on “good manners”—that gave rise to it.

Though Roman law spread through the Empire and swept before it local legal systems and practices, with more or less accommodation to them, it appears to have had little impact on Jewish law. In contrast to Greek law, from which important legal institutions were adopted, one is hard put to find a convincing instance of a particular Roman legal institution which became part of Jewish law.² An exceptional instance may be the recognition of mere speech as binding in the constitution of a dowry, known in Hebrew as d’varim haniknim ba’amira, “things acquired by speech”. The two major scholars of the earlier part of this century who addressed the issues of contacts between the Roman and Jewish legal systems, Asher Gulak and Boaz Cohen, both assigned a Roman origin to this Jewish institution. Gulak identified it as stipulatio, though he

* I wish to express my thanks to the Institute for the Study of Jewish Law, the Israel Science Foundation, and the National Endowment for the Humanities for their support of work on this study; and to the University of Michigan and its Department of Classical Studies for the hospitality extended during my stay there while on sabbatical leave. I also thank Professor Shalom Albeck for his comments on a manuscript of this chapter.

¹ Alan Watson, The Law of Persons in the Later Roman Republic (Oxford, 1967) 57—63.

² For the view that Jewish law did not adopt Roman institutions and some speculation as to why that might be the case, see Ranon Katzoff, “Sperber's Dictionary of Greek and Latin Legal Terms in Rabbinic Literature—A Review-Essay”, (1989) 20 Journal for the Study of Judaism 195. raised and immediately rejected the possibility that dotis dictio is involved.^[392] Cohen first followed Gulak,^[393] and later, in a brief paragraph, identified the Jewish institution as deriving from the Roman dotis dictio, but his repeated use there of the verb “stipulate” in a non-Roman sense obscures the point.^[394] In the following I will present briefly the basic texts and rules on d’varim haniknim ba’amira,^[395] suggest that dotis dictio rather than stipulatio be considered as the possible Roman model, and finally question whether any Roman origin should be sought at all.

The talmudic text, as it appears in the Babylonian Talmud (BT), is as follows:

∣jnυ πnκ πnoι ∩â–ˇτ p ? ~∣J3⅛ jnυ πnκ πw =oτ τoκ ⅛n â–ˇτ ton.πτ'oκâ–ˇ â–ˇ'jp>3∏ onoτπ p p.υp — tot∣∕i nos?.pτ p¹ pob [“Rav Gidel said in the name of Rav: [The parents said,] â€?How much do you give your son?’^[396] â€?Such and such’. â€?And^[397] how much do you give your daughter?’ â€?Such and such.’ [If] they proceeded to betroth, they acquired. These are the very things which are acquired by speech [d’varim haniknim ba’amira]”.]

The text appears in three passages of the Babylonian Talmud and, as will be seen, with some variation in one passage of the Palestinian Talmud.

In the Palestinian Talmud (PT), at Ketubot 5.1 (29c), following closely after, though not an integral part of, a discussion of the same issue as in BT Ketubot, involving the same two amoraim, the text is as follows:

3χ7∏ dπdd rota ⅛â–ˇrrc^, xbx,poiD dxπ id pens ⅛sâ–ˇπιz7 dwd t’jd i xτ>â–ˇ37 φπ.∏-∣^,nxâ–ˇ ppi pw ∏∙^,^ιâ–ˇι ^râ–ˇ⅛ι,d^,'∣â–ˇizj xb>x now ιrκ p ? -pâ–ˇ^,? jnυ πnx πod ; pi p ? pâ–ˇ⅛ ]nυ πnx ππd,dd Dizn bn^,ι.Π1JDH J’D FIDT ΓWI^,pW JVD _;pi [“It has been taught, just as the husband can make a marriage settlement [for his wife] so the father can make a marriage settlement [for his daughter], but whereas the husband makes a settlement in writing, the father makes a settle­ment by words [bid’varim],^{9 [399] and only such things as are acquired by speech [d’varim haniknim ba’amira].}

The point of the final words of the text in this version is that the betrothed daughter acquires the rights to whatever the father said he would give her even if that is more than her fair share of her father’s wealth.^[400] This is subsequently emended by the Talmud to read in addition, “and the son as against the other sons”. At this point the substantive content is identical with that of the state­ment as quoted in the BT. This fuller form is then quoted also in the name of Rabbi Yochanan, and followed by the limitation that it applies only in the case of a first marriage, presumably of the child who is a recipient.^[401] Whether the limitation is part of Rabbi Yochanan’s words or by the Talmud is not clear.^[402]

In my translation I have supplemented the text with the more idiomatic “par­ents” as the parties to the dialogue. To be more accurate, however, I should have used “fathers”, for only fathers are meant. The pronouns and the verbs in the dia­logue are all masculine. Though in Hebrew masculine gender of words also serves as the default gender when reference is to persons of both sexes, and the statement could easily be interpreted extensively to include both, that is not the case here. The discussions of the text in the Babylonian Talmud turn on the power of the father to give his minor daughter in marriage and receive the money of kidushin for himself, from which mothers are excluded. Finally, there is con­firmation in a passage of the Tosefta, Ketubot 6.8 (Lieberman): “A man makes a marriage settlement (posek) for his daughter, a woman does not make a marriage settlement for her daughter”. At first sight this is astonishing, for surely, a mother, or anyone else for that matter, can give or promise any gift, and on whatever terms, she wishes to give her daughter on the occasion of her marriage.^[403] Clearly the term for “make a marriage settlement” (posek) is used in a special sense.

Whether the spouses could in Rav’s view also become obligated by mere speech is less clear. Nothing is said explicitly on this point in the BT. However, the comment of Rava in the discussion of Rav’s statement, that Rav’s dictum is understandable in the case of a father of a minor girl because he becomes oblig­ated in return for the value of the money of kidushin, implies that a bride who had achieved majority would also by the same reasoning be able to obligate her­self to the dowry by mere speech since it is she who receives the money of kidushin. The conclusion of the discussion of the BT, that the fathers even of adult spouses become obligated by mere speech in return for the satisfaction of contracting the marriage, could easily be extended to the groom as well. This reasoning is used explicitly of the groom in the PT, however there it is in regard to unilateral obligation by writing, not by speech. On the contrary the PT attaches to Rav’s statement the tanaitic one that “a groom makes a marriage set­tlement in writing”. It is, however, not clear if the statement refers to possibility or requirement, to what is necessary or to what is sufficient. Post-talmudic authorities split on this question, and ultimately the view prevailed that both spouses could obligate themselves by speech.¹⁷

The result of the transaction described may be either the creation of an oblig­ation or transfer of title.¹⁸ The two notions are not as sharply distinguished in Jewish as in Roman law, and both can come under the term niknim, “acquired”.

thanks to Professor Zvi Steinfeld for his help in directing me to the identification of the persons involved.) If the reference by Rabbi Samuel to the authors of the responsum as rabotai, “my teach­ers”, means that he personally studied with them, as Danzig, supra n.10, 62 n.31a, suggests, the authors must be of the early twelfth century. (“Yo’el” in the first line of that note is a slip for “Natan”.) Rabbi Pinchas Halevi Horowitz, Sefer Hamikneh (=Part II of Sefer Hafla’ah), ⁱⁱKuntres Acharon” 51.1 (Offenbach, 1801, repr. Jerusalem, 1975) 374 suggests that compiling the rules put forth on constructive transfers of money of kidushin in BT Kidushin 6b-7a may result in that any­one could become obligated by speech alone in the monetary aspects of a dowry.

¹⁷ Talmudic Encyclopedia, supra n.6, nn.45 and 51. For the ultimately prevailing view, Maimonides, Code, Ishut 23.13; Shulchan Aruch, Even Ha’ezer 51.1. For the contrary view, Me’iri, Kidushin 9b, supra n.8, 68; but cf. Me’iri, Ketubot 102b, supra n.10, 472-3.

¹⁸ B M Lewin, Otzar ha-Geonim VIII: Ketubot, p. 358, §793, drawn from Ittur, s.v. Psikata (Warsaw, 1883, repr. Jerusalem, 1987) p. 132.

¹⁹ Sefer Hamikneh “Kuntres Acharon” 51.1, supra n.16, 374.

²⁰ See, e.g., Geonim (early post-Talmudic authorities) cited by Rabbi Yosef ibn Migash, in Shita Mekubetzet, Ketubot 55a (repr. 1967) p. 7; and in Ritva, Ketubot 102b (Goldstein (ed)) 804 at n.96. See further references in that note. Maimonides, Code, Zchia Umatana 6.17, followed by Shulchan Aruch, Even Ha’ezer 51.1, restricts this to what is in the promissor’s ownership at the time of the promise.

Chronologically, the statements can probably be located in the second and third centuries of this era. Rav and Rabbi Yochanan are both early Amoraim, Rav in the early third century, Rabbi Yochanan somewhat younger. It should be noted that in the PT passage the words “d’varim haniknim ba’amira” appear not as part of the statement of Rav, but in the passage immediately preceding it. The word tani, “it has been taught”, normally introduces a statement of tana’im.^[406] The manner in which the phrase “d’varim haniknim ba’amira” is used, “provided that it is d’varim haniknim ba’amira”, seems to indicate an allu­sion to a known existing, hence tanaitic, institution. This confirms the similar conclusion we should draw from the way the phrase is used in the BT passage, “These are the very d’varim haniknim ba’amira”, that it is an allusion to a known institution. Since Rav is of the first generation of amora’im, the allusion must be to a tanaitic institution. Even if it be argued that the phrase is not part of the quotation of Rav’s words but the comment of the editor of the BT pas­sage, the comment must have been made at an early stage of the editorial process, since the words appear in the identical position every time Rav’s state­ment is quoted in the BT; and considering the use of the phrase in the PT, the balance of probability is that the supposed BT editor in question alluded to a tanaitic institution. Furthermore, now that we have seen that in at least one tanaitic source the term posek in context of betrothal and marriage can bear the specialized meaning of making marriage settlements orally, oral proceedings may lie behind any number of the very frequent uses of the term posek in tanaitic literature.^[407]

Geographically the statements can be placed in the Land of Israel, hence within the bounds of the Roman Empire. Both Rav and Rabbi Yochanan are from there, both had studied in the academy of Rabbi Judah the Prince, though Rav subsequently founded an academy in Babylonia.

It is difficult to say how common the reliance on d’varim haniknim ba’amira was in the talmudic period.^[408] Perhaps an indication of loss of interest in it is that there is very little elaboration of the rules concerning d’varim haniknim ba’amira in the Talmud, except insofar as they are subsumed under rules for posek in general. Even issues which one would expect to be addressed, and are addressed in the context of other similar rules, are not found in the recorded lit­erature until well into the post-talmudic period. For instance, there is no dis­cussion regarding the words amdu v’kidshu, “if they proceeded to betroth”, on whether the betrothal, kidushin, must follow immediately for d’varim haniknim ba’amira to be effective,^[409] although there is such a discussion of the analogous situation in connection with the bequest of a person on his deathbed (BT, Bava Batra 114a-b). Similarly, there is no discussion of the status of these commit­ments during the period between kidushin, betrothal, and nisu’in, marriage, nor if they were made at the nisu’in rather than at the kidushin, despite the other­wise ubiquitous concern with this interim period.^[410] The enigmatic interchange between Ravina and Rav Ashi on whether it is permissible (if that is what is meant) to write up the oral transaction on the grounds that writing entails effects on third parties which may not have been intended in oral proceedings, and the relation of that interchange to the existence of shitrei psikata (BT Ketubot 102b lo nitnu likatev) ^[411] does not change this conclusion.

To summarize so far, statements from the Land of Israel of the second and third centuries describe a dialogue consisting of questions and answers between fathers of spouses on the occasion of betrothal, and probably between spouses as well, in which ownership is transferred and obligation arises by mere speech, without the necessity of writing, or of formal transfer (kinyan).

The Talmud’s characterization of these proceedings as “things acquired by speech” caught the attention of Gulak for its similarity to the Roman doctrine that “verbis obligatio contrahitur ex interrogatione et responsione, cum quid dari fierive nobis stipulamur” [“an obligation by words is contracted by means of a question and an answer when we stipulate that anything shall be given to or done for us”] (G. 3.92; Inst. 3.15pr). “Stipulate” is here used in the technical Roman sense of asking a question of the sort, “Do you promise to give, or do, so-and-so”, to which a congruent affirmative answer must be given. This sort of dialogue consisting of question and answer creates an obligation on the part of the promisor without any further need for writing or formal transfer. Stipulatio, it should be noted, is the only contract included in the category of “verbal con­tracts” in Justinian’s Institutes. Not surprisingly, then, Gulak fixed on stipula­tio as the background for the rabbinic “things acquired by words”.

Several objections, however, immediately arise, some of which Gulak himself addressed in greater or lesser degree. First, the questions in the Jewish dowry dialogue do not match the requirements of the Roman stipulatio. Essential to stipulatio is that all the details of the obligation must be spelled out in the ques­tion, at least by implication. The question in the Jewish dialogue, “How much do you give your son?” fails this elementary requirement. Gulak attempted to ward off this objection by pointing to increasing laxity in the rules concerning stipulatio, but there is no evidence for this particular laxity.

Secondly, it is generally agreed that in the Greek-speaking (or rather Greek- writing) eastern provinces of the Roman Empire documents often contained clauses asserting a stipulatio, but that in fact no oral proceedings actually took place. However, in Gulak’s reconstruction, rabbinic literature insists on oral proceedings but contains not a hint of the recording of a stipulatio in a docu­ment. We are asked, then, to believe that the development in Palestine was opposite to that of the other eastern provinces: elsewhere Greeks did not ask formal questions and merely wrote that they did; the rabbis required formal questions but so far as appears in rabbinic literature did not write thus in their documents.

Thirdly, on Gulak’s thesis that the oral proceedings are stipulatio, why do the rabbis recognize its binding nature only in connection with marriage settle­ments? Any transaction could be stated in terms of stipulatio, yet the rabbis insist that these purely oral proceedings bind only in these particular d’varim haniknim ba’amira, things acquired by speech, i.e. marriage settlements. Gulak averted this objection in two steps. First, he interpreted the sense of the phrase as “providing these exact words are used”, rather than “only such things that are acquired by speech”.²⁷ Gulak’s conviction that the words spoken are purely for­mal stemmed from his understanding that these words were said at the wedding, which is the occasion for formalities, not for substantive negotiation. He failed, however, to take cognizance of the fact that in the talmudic period the kidushin, betrothal, at which this dialogue took place, was not part of the wedding cere­mony, as it indeed has been since the Middle Ages, but occurred much earlier. It was socially the equivalent of the first meeting of the parents of a newly engaged couple customary in some Jewish circles today.

Secondly, having taken the limitation to obligation by speech to be to formal words not to dowry proceedings, Gulak suggested that stipulatio played a greater part in the practice of the Jews of Palestine than is recorded in the Talmud.²⁸ Now, indeed, it has become apparent that at least some Jews in the region were familiar with the stipulation clause by the early second century of this era. Seven Greek documents from the Judaean Desert, written by Jews, con­tain at or near their conclusion stipulation clauses, such as π√στeof consistency of the sense of the word d’varim vanish. D’varim here must mean “things, objects and obligations”, and the phrase as a whole “things that are acquired by speech”.

If, then, any Roman institution stands behind the rabbinic d’varim haniknim ba’amira it is more likely to be dotis dictio.^[413] Amira in the phrase “things acquired by speech (amira)” would thus exactly parallel the Latin dictio.

Of the very few texts mentioning dotis dictio explicitly which survived Justinian’s editors the most important for our purpose are the following: “Dos aut datur aut dicitur aut promittitur. Dotem dicere potest mulier quae nuptura est et debitor mulieris, si iussu eius dicat. Item parens mulieris virilis sexus... velut pater avus paternus” (Ulpian, Regulae 6.1-2 - see FIRA ii 259). [“Dowry is either given, �spoken’, or promised. The woman about to be married can �speak’ a dowry, as can her debtor if he �speaks’ it at her order. So also the woman’s male parent..., to wit her father or paternal grandfather”.]

“Sunt et aliae obligationes, quae nulla praecedenti interrogatione contrahi possunt, id est, ut si mulier sive sponso uxor futura, sive iam marito, dotem dicat. Quod tam de mobilibus rebus, quam de fundis fieri potest. Et non solum in hac obligatione ipsa mulier obligatur, sed et pater eius, et debitor ipsius mulieris, si pecunia, quam illi debe­bat, sponso creditricis ipse debitor in dotem dixerit. Hae tantum tres personae nulla interrogatione praecedente possunt dictione dotis legitime obligari. Aliae vero per­sonae, si pro muliere dotem viro promiserint, communi iure obligari debent, id est, ut et interrogata respondeant, et stipulata promittant”. (Epitome of Gaius 2.9.3)

[“There are [verbal] obligations other [than stipulation], and these can be contracted without a preceding question, such as if a woman �speaks’ a dowry to her fiance or husband. This can be done with moveables as well as with land. Not only the woman herself may be obligated in this type of obligation, but also her father and the debtor of the woman herself, if the debtor himself �speaks’ the money which he owes her to her fiance as dowry. Only these three persons can legally become obligated by the �speaking’ of a dowry with no preceding question. Indeed other persons who promise a man a dowry for a woman ought to be obligated by the regular rules, that is that they respond to questions and promise what was stipulated.”]

In both texts a sharp distinction is drawn between “promising” a dowry according the usual rules concerning unilateral obligations, a procedure avail­able to anyone who wishes to contribute to a dowry, and “speaking” a dowry, that is constituting a dowry by speech alone, without a formal dialogue, a pro­cedure available only to the bride herself, her father and grandfather, and her debtor. The effect of the “speaking” was that the person who “spoke” the dowry was obliged to give the groom as dowry what he said he would, be it land or moveables, such as slaves, clothes or money.^[414] Within Roman law it is peculiar in that, except for the oath of a freedman, it is the only verbal form which is uni­lateral and proceeds from the donor.^[415] How formal or informal this speech was to be is in dispute. Most scholars have taken it to be a solemn declaration which required fixed words, phrased impersonally, that something doti tibi erit (or erunt), “will be your dowry”.^[416] Others, represented today by Alan Watson, hold that the declaration was informal.^[417]

The similarity of dotis dictio to d’varim haniknim ba’amira is obvious. None of the objections that were raised above to the identification of d’varim haniknim ba’amira with stipulatio obtain here, except that on the view that dotis dictio did have fixed words, d’varim haniknim ba’amira fails that require­ment too. Particularly notable is the limitation of the procedure to particular persons. The divergence is easily explainable. D’varim haniknim ba’amira is available to the groom (probably) and to his father but dotis dictio is not, for the obvious reason that in Jewish practice it is customary for the groom and his family to contribute to the dowry but in classical Roman law the possibility is entirely excluded.³⁷ Compare Mishna Ketubot 6.3: “If the bride settled (paska) to give the groom as dowry a thousand dinars, he settles (posek) correspond­ingly fifteen minas ( = 1500 dinars)”, and CJ 5.15.1: “Delivery, not the writing of a document, creates a dowry”.³⁸ On the other hand, dotis dictio is available to the debtor of the bride, and only of the bride, but there is no corresponding rule in connection with d’varim haniknim ba’amira. This Roman rule, in par­ticular the exclusion of the father’s debtor, caused such consternation among romanists that some were moved to deny its existence in classical law.³⁹ An attractive explanation, put forth relatively recently—as these things go—by Carmela Russo Ruggeri, for this apparent anomaly will explain its absence from the analogous Jewish rule as well. The rule, it is suggested, is intended to pro­vide a way for the bride, who in such an instance must ex hypothesi be sui iuris, to get around an uncooperative tutor. Her access to her invested assets becomes easier for the purpose of facilitating her marriage, and thereby incidentally change of tutor as well.⁴⁰ This special arrangement would not have been needed for d’varim haniknim ba’amira since in Jewish law an adult woman is not sub­ject to a guardian at all.

Use of the verb dicere in the context of dowry in writings of Cicero⁴¹ and the younger Pliny⁴² shows that elite Roman society observed these distinctions of the jurists. Two Latin papyri from Egypt of the second century CE show that

³⁷ P.Mich. VII 434 + P.Ryl. IV 612 = FIRA iii 17 (= Corpus Papyrorum Latinorum 208—209 = Chartae Latinae Antiquiores IV 249) may contain an exceptional instance. At line 16 of P.Mich. 434 the husband declares that he has brought in certain property in the vicinity of Philadelphia (“et ipse intulisse se dixit ad vic[um] Philadel[phiam]”). See F De Visscher, “Document sur la donatio ante nuptias”, (1944) 37 Chronique d’Egypte 101. The publication of P.Ryl. 612 precludes the restoration of the line as ad vicem dotis, making the matter somewhat more speculative than thought earlier. The document as a whole is remarkable for containing many non-Roman elements.

³⁸ See further CJ 5.3.1; David Daube, Roman Law: Linguistic, Social and Philosophical Aspects (Edinburgh, 1969) 109—12; Ranon Katzoff, “Donatio ante nuptias and Jewish dowry additions,” in Naphtali Lewis (ed), Papyrology, Yale Classical Studies No. 28 (Cambridge, 1985) 231.

³⁹ Ortega, supra n.32, 107—15, with bibliography.

⁴⁰ Carmela Russo Ruggeri, “Il â€?debitor parentis’ e la â€?dotis dictio’”, (1979) 25 Labeo 39.

⁴¹ e.g., Pro Flacco 86: “Doti, inquit, Valeria pecuniam omnem suam dixerat”. [“ â€?Valeria,’ he says, â€?had settled all her money upon him for a dowry’ ”]—said of the bride herself.

⁴² Epistolae 2.4.2: “cumque... nubenti tibi in dotem centum milia contulerim, praeter eam sum­mam quam pater tuus... dixit”. [“And since... I had contributed 100,000 sesterces towards your dowry when you married in addition to what your father assigned you...”.] Note the change in the verbs used for giving the dowry: dixit, “spoke”, of the father of the bride; but contulerim, “con­ferred, gave” of Pliny, neither father nor creditor of the bride. they were observed by lower levels of society as well, and reached the eastern Mediterranean. In each it is said that a wife dixit deditque, “spoke and gave” a dowry to her husband.^[418]

Similarity of Jewish and Roman law on any matter and the availability of a Roman model for Jewish law would not be sufficient grounds on which to make a case for adoption by Jewish law if the institution could be explained as a nat­ural development within Jewish law.^[419] In this case, however, the institution of d’varim haniknim ba’amira is exceptional, since in Jewish law on the whole transactions require for their effectiveness a transfer, at least constructive, of some object of value or a document.^[420] Indeed it is declared by both the talmudim to be anomalous. In PT Ketubot 5.1 29c Rabbi Hiya bar Yosef finds it extraor­dinary that the father of the groom would become obligated since he, in contrast to the father of the bride, receives nothing in return, and Rabbi Zeira finds it no less extraordinary that the groom could acquire rights to the dowry in the same transaction in which he “acquires” his wife.^[421] In BT Ketubot 102b it is Rava who raises the former of these considerations: “Rav’s statement makes sense if the bride is a minor, for then the father receives a benefit [the money of kidushin, in return for his obligation to the dowry], but not if the bride is an adult [since then the father does not receive the money of kidushin]. Yet, by God, Rav did say that, for otherwise how does the father of the groom become obligated [for

Oral Establishment of Dowry in Jewish and Roman Law 169 certainly no money of kidushin comes to him]”.⁴⁷ The legal source, then, would be original rabbinic legislation, rather than juristic interpretation.⁴⁸ The histor­ical source, however, of the anomalous, and so recognized within the system, institution of d’varim haniknim ba’amira, it may be argued, is the Roman dotis dictio.

However, it is precisely Alan Watson’s perceptive observations on the origin of dotis dictio which give pause to accepting dotis dictio as the origin of d’varim haniknim ba’amira. The Roman dotis dictio, with its lack of formality, devel­oped precisely to give legal effect to what etiquette required. Scenes of betrothal and dotis dictio in Roman comedy show that the correct thing to do was for the father of the bride to declare that he is betrothing his daughter to a man and at the same time state, directly or obliquely, what the dowry would be. Though there may be haggling later, it was not good form for the prospective groom to start by questioning the father of his beloved if the dowry was going to be so- and-so much. This etiquette, though as it happens not dotis dictio itself, is evi­dent in the plays of Plautus.⁴⁹ Both the etiquette and the terminology of dotis dictio are evident in Terence, most strikingly in Heaut. 937:⁵⁰

“Menedemus [the father of the groom]: What dowry shall I say you �spoke’ [dixisse] for my son? Why are you silent?

Chremes [the father of the bride]: Dowry?

Menedemus: That’s what I said.

Chremes: Ah.

Menedemus: Chremes, don’t worry about it if there isn’t any. The dowry doesn’t mat­ter to us.

Chremes: I thought that two talents would be enough considering our means.”

Note the exact parallel to the statement of Rav: “How much do you give your daughter?” “Such-and-such.” In the following lines Chremes insists that the transaction be described so that it seems that all his property will go to his daughter’s dowry at the expense of his son’s expectations. Note again the parallel to the end of Rav’s statement, “she acquired as against the other daughters”.

⁴⁷ The subsequent explanation of the Talmud, by which the parties become obligated in consid­eration of their satisfaction at the transaction itself, even though they may receive no material ben­efit whatever, is said to be characteristic of Rav Ashi, mid-fifth century CE, but not earlier in the BT, though its roots may be traced to earlier Eretz Israel, e.g. the pericope immediately preceding the one under discussion in the PT. See S Friedman, “Hana’a v’kinyan baTalmud”, (1972) 3 Dinei Israel 115 (Hebrew). It is dismissed entirely by Me’iri, Kidushin 9b, supra n.12, 67, who stresses the extraor­dinary character of d’varim haniknim ba’amira. As Professor Albeck points out, even if Friedman’s dating of the Talmud’s explanation is rejected, the explanation still represents the efforts of the rab­bis to put a juristic construction on a practice required by social realities.

⁴⁸ For a strong statement of the position that d’varim haniknim ba’amira was rabbinic original legislation in response to a perceived desire of the community that oral commitments made at betrothal be binding, and not a juristic construction of the will of the specific donor, see Rabbi Yehezkel Landau, Noda Biyeudah, Choshen Mishpat 28, s.v. od ahuvi (Prague, 1776).

⁴⁹ e.g., Aulularia 255; Trinummus 1156.

⁵⁰ cf. Andria 950: “The dowry, Pamphilus, is ten talents”. “I agree”; Alternative ending 20: “So, I betroth my daughter Philumena to you and promise dowry of six talents.”

The fact that dotis dictio is most obvious in Terence, whose plays are direct translations from Greek, should raise the question of whether this institution was Greek. Romanists did raise this question with an eye to whether this viti­ated the value of these passages as evidence for Roman law, or to whether this implied that the institution should be seen as an importation from Greek law. Both questions have been answered in the negative.^[422] However, that does not diminish the usefulness of the passages as evidence of Greek practice. If earlier scholars could dismiss the entire question because no such passage were among the available fragments of Greek New Comedy, that is no longer the case. Passages of Menander and other authors have come to light to confirm that there is no difference between Roman and Greek etiquette in this matter. Three representative examples from different sources may suffice.^[423]

Menander, Dyscolus 842-44: “Well, I betroth my daughter now, young man, to you to produce legitimate children. I add three talents dowry.”

P.Oxy. XXXI 2533.4-6: “I betroth her, my daughter, to you, Moschion, to produce lawful children. The dowry you know yourself.”

Chariton, Callirhoe 8.8.12: “Before you all I and Callirhoe offer our thanks to our friend, Polycharmus. He has shown us true devotion and loyalty, and, if you consent, let us give him my sister as his bride, and for a dowry he shall have a share of the spoils.”

The confidence with which scholars such as Beauchet^[424] and Berger^[425] asserted that dotis dictio had nothing to do with Greek practice flowed from their con­viction that dotis dictio required the pronouncement of fixed formulas, which would be alien to Greek law. However, that does not mean that there was not a completely informal institution in Greek law which otherwise functioned as dotis dictio.

If, then, it be accepted that Greek law recognized the binding nature of an informal promise of dowry even without the benefit of writing,^[426] similar to the Roman institution of dotis dictio, it is not Roman law to which one should look for the background to the Jewish rule on d’varim haniknim ba’amira. Rather, two other possibilities should be considered.

One is that the rule, exceptional in Jewish law, that a promise or transfer of dowry could be effected with neither writing nor formal transfer, may have entered Jewish law from Greek legal practice along with the practice of dowry itself. If so, it must have occurred early in the Hellenistic period, for the shift from brideprice (mohar), the practice in biblical times, to dowry was complete by the time of Shim’on ben Shetach, ca. 100 BCE.^[427]

This would explain the lack of any reference to oral proceedings in the few Jewish marriage documents which survived in the caves of the Judaean desert. In contrast to Roman marriage documents which do refer to previous oral establishment of the dowry,^[428] none of the Greek papyrus marriage documents from Egypt reflect the oral nature of the proceedings which established a dowry, even though Hellenistic comedy and fiction can give us confidence that oral pro­ceedings did indeed sometimes take place. Neither is it ever said explicitly that it is the document per se which brings the dowry into existence. It was simply not thought that it was significant to record whether there were oral proceed­ings before the writing of the legal document or not.

The same may be said of the few Jewish marriage documents which survive from antiquity. In none is there any reference to oral proceedings, nor for that matter to a constitution of the dowry by the fact of writing. The Jewish mar­riage documents, then, do not give evidence one way or another on whether there were oral proceedings, of the sort one would expect from the b’raita, “the father settles by words”. Of course, if there were any transactions of this sort which were deliberately not written, as one could interpret the b’raita, we would have no record of them.

Alternatively, and I think more likely, the rule of d’varim haniknim ba’amira, exceptional as it may be, developed independently in Jewish law, as it did in Greek law and in Roman law, and, we may surmise, for the same reasons. At a betrothal, two families join in a prospective marriage, and “good manners” require that behaviour between them be that which prevails within a single fam­ily, where family goods are distributed by trust and affection and without for­mality. Yet there must be provision for the real possibility that members of the two families will not always get along. Hence the recognition by the jurists of a binding quality to things said in good manners on the occasion of betrothal. Whatever the fathers say at that most delicate occasion as to what they intend to give for the support of the new young couple, they will have to stand by. To paraphrase Alan Watson,^[429] the form of d’varim haniknim ba’amira, odd though it may be as a Jewish creation, is, like dotis dictio, natural in terms of the social circumstances under which it arose.