I. Case Studies

P.Yadin 2 and 3: a Jew amongst Nabataeans

P.Yadin 2 and 3 are two contracts of sale, both in Nabataean Aramaic. They concern the same property that is apparently sold twice by the same vendor but to different purchasers.^[243] Despite a few divergences the general structure of the documents is the same and this has been taken to indicate that the texts were written according to a standard model for an act of sale: ‘...

The vendor, a woman named ’Abi-‘adan, sells a ‘plantation of date palms,' first to a Nabataean named Archelaus, and then to a Jew named Shim‘on, most likely the father of Babatha.^[247] Since the vendor is in both cases a Nabataean, and the purchaser in the first instance as well, it is not odd that the documents were written in Nabataean Aramaic.^[248] In the edition this is remarked on as:

It is of great interest, nonetheless, that a Jew purchased property located in the Nabatean Kingdom from a Nabatean owner, under the provisions of Nabatean law, and that the deed of sale was written and witnessed by Nabateans.^[249]

While ‘property located in the Nabatean Kingdom,' ‘from a Nabatean owner' and ‘written and witnessed by Nabateans' are clearly conclusions derived from the facts as presented in the text, this cannot be said to be the case for ‘under the provisions of Nabatean law.' In fact, the editors do not explain what prompted this conclusion.

In these lines the watering periods belonging to the orchard are designated. In the first instance, P.Yadin 2—the sale to a Nabataean, the watering periods are not specified but merely designated as ‘as is proper.’^[251] In P.Yadin 3 on the other hand, we find that the watering peri­ods are specified: ‘half of one hour on the first day of the week.’ This kind of specification of a period for the watering of the orchard with a day of the week seems to have been based on the Jewish regulation regarding the Sabbath: a period is specified to avoid any possible irrigation on the Sabbath.^[252]

The phrase, used for designation of the watering rights in P.Yadin 2, ‘as is proper,' is used again in lines 7-8/28 of P.Yadin 2 and 8/31 of P.Yadin 3, where it refers to inclusion of ‘everything whatsoever small and large as is proper for him [i.e. the purchaser] regarding these purchases.'^[253] Here the phrase clearly denotes that the sale will encompass everything that is normally regarded as being part of the sale, i.e. to be sold together with the main object. It is not specified to which legal system (what law) this phrase refers. Consequently, the phrase ‘as is proper' refers to a known legal context, a legal framework for the parties in both cases. It is obvi­ous that normally a reference to such a known framework would be suf­ficient. That it is not in the case of the watering rights shows that it was possible to deviate from the general framework by referring to a specific rule or agreement that then replaced the reference to the general frame­work. Following this line of argument, it does not even matter much what kind of law was behind the general legal framework: whether we take this to be specific Nabataean law or more generally a common ori­ental tradition, or perhaps even the common Aramaic tradition.

Consequently, it does not seem to be ‘of great interest' that Shimon purchased the property under the provisions of Nabataean law, but just the opposite: that he got to change certain details of the contract related to his own legal background. This means that the fact that the document is written in Nabataean Aramaic does not necessarily mean that Naba­taean law applied to it (in all its details) or that one has to take references to be references to the Nabataean legal system. In this light it is telling that the specification of water rights by days of the week occurs in three documents by Jews in three different languages: Nabataean-Aramaic, Jewish Aramaic and Greek.^[254] This indicates that it is indeed not the language here, but the reference to law (or custom) that is determina­tive of what law was applicable to the legal act. Even though P.Yadin 2 and 3 were written against the background of Nabataean law, the fact that the purchaser in P.Yadin 3 was a Jew did influence the contents of the contract.

XHev/Se 2 nab, referred to above, has been identified as part of the Salome Komaise archive.^[255] The vendor is a woman named Salome, in line 7 the name Menachem is read. The mother of Salome Komaise, also called Salome, is designated as daughter of Menachem in P.Hever 63 and 64. This means that the document is an act of sale with Salome Kom- aise's mother as vendor. Contrary to the upper version, the lower version is well preserved, but it is damaged in the opening lines. Therefore, we do not know in what way the watering rights were assigned, with ‘as is proper' or with a specific designation. Since the purchaser was a Naba­taean we could assume that specific designation of a day of the week and time would not have been necessary and consequently, would not have been found in this document.

P.Yadin 6: Jews conducting business in Nabataean

The agreement of P.Yadin 6 is made between two Jews: the owner of the land that has to be worked, Yehuda' the son of 'El‘azar, second husband of Babatha, and one Yochana' son of Meshullam.^[256] The document is in Nabataean Aramaic.

Recourse to a Nabataean document, produced in the distinctive Naba­taean cursive, in a case where both parties are Jews (and both witnesses as well), suggests the high degree of business interaction characteristic of the Southern Dead Sea region at the time.^[257]

This remark linking language with business suggests that the use of Nabataean Aramaic is a sign of a more general adjustment to a Naba­taean climate, perhaps to a Nabataean legal background. However, above it was shown that in a document in Nabataean Aramaic, with strong references to Nabataean context, a specific Jewish feature (concerning the water rights) could be incorporated. This means that it is not self- evident that a document in Nabataean Aramaic draws on a Nabataean legal context, or even Nabataean law.^[258] Neither is it self-evident that doc­uments in Nabataean Aramaic cannot feature aspects from Jewish law. P.Yadin 6 is a good example of this.

It has been argued for Nabataean Aramaic in general that it can be recognized and distinguished from, for instance, Jewish Aramaic by its Arabisms, words that can be better related to Arabic than to Aramaic or Hebrew.^[259] This means that the language was influenced by elements other than, for example, Jewish Aramaic. Since P.Yadin 6 is written in Nabataean Aramaic, it would be expected to find Arabisms there. I will discuss the Arabisms mentioned in the commentary of the edition com­menting on their meaning for our understanding of the text in its sup­posed legal context.^[260]

The first Arabism mentioned, lines 4-5, nbbp, is a word that can also be found in P.Yadin 7, a text in Jewish Aramaic.^[261] This means that the use of this Arabism here is not particular for Nabataean Aramaic as con­trasted with Jewish Aramaic, and that it does not necessarily imply that a Nabataean legal context is referred to.

In lines 6-7, which give the ‘duties and compensation of the tenant­manager,' some important words can be linked with an Aramaic-Hebrew background. The indication of assumption of debt or obligation, for instance, 'by, ‘shall be my obligation, shall be on me,’ is said to be ‘a very ancient West Semitic usage that persists in Hebrew, Aramaic and Phoe­nician-Punic.'^[262] There is no mention of a link with Arabic.

The verbal root for ‘to labor,' ‘-m-l (lines 6-7) is said to be ‘common to Aramaic, Hebrew, and Arabic.' Therefore, the link with Arabic is not exclusive, although the example given there comes close to our text here.^[263]

The word JDn found in the same lines could represent a common Arabic term but ‘it is decidedly possible, however, that it is an Aramaic fraction meaning “one-eighth.” '^[264] This means that the link with Arabic is, again, not exclusive.

‘The duties of the manager' as stated in lines 9-10 contain a couple of words which are well attested in early West Semitic sources or in Jew­ish and Christian Aramaic sources. The same applies to words found in lines 11-13 and 14-15.^[265] In my opinion, all of this does not seem to make a convincing case for the strong Arabic flavor of the document. It is precisely those words that refer to what the tenant-manager has to do that seem to indicate a link with Aramaic-Hebrew, rather than with Ara­bic. Consequently, the fact that the document of two Jewish parties was written in Nabataean Aramaic should not be overrated. It seems that the flavour of the document in its choice of words is more Aramaic-Jewish than Nabataean-Arabic after all.

When we consider what the duties of the tenant manager include we see that he is supposed to work the land, providing both the work, that is, his labour, and the seed. In return he is to receive a share. Because the text is damaged at both points where the compensation is mentioned it is uncertain what it was: a share in the crop or in the price of the crop.

It is important to note in this respect that the material collected in m. B. Mesia all seems to be relatively old (i.e. stemming from rabbis who figured early after the destruction of the temple) and thus close to Babatha's own lifetime.^[267] The passages concerned in the present discus­sion of P.Yadin 6 are attributed to Simeon b. Gamaliel, a rabbi who was active in the wake of the Bar Kochba revolt. Consequently, the material can very well be expected to present a faithful picture of actual (and common) practice in Babatha's lifetime.

In the Mishnaic passage it is made clear that what is agreed upon between the parties is binding (such as the product the party is supposed to grow on the field, see m. B. Mesia 9:8). Furthermore, it becomes clear that the person who had to work the field would benefit from specific arrangements. For example, m. B. Mesia 9:2 explains that damage fol­lowing the lack of an element necessary for the produce (for example water for irrigation) is deductible from what the lessee has to bring in, if he has specified in the contract that the result of his efforts depend on the presence of this element. Consequently, a contract can be expected to be specific about the work the worker will have to do and the result that is expected of him. This is exactly what we find in the papyrus text.

The m. B. Mesi‘a tractate is important for our understanding of the papyrus text in another respect, because it is suggested in m. B. Mesi‘a 9:1 that for parts of the arrangements concerning land tenancy local cus­tom was taken into account. The method of reaping the produce is dis­cussed there. Local custom is also mentioned in m. B. Mesi‘a 7:1, where it is said that workers in an area ‘where it is customary not to rise early or work late' cannot be forced to do so. This prevents employers from changing the working conditions of their workers according to their whims. The passage specifically says that ‘all follows the custom of the province.'^[268] This reference to local custom can also be found in m. B. Mesi‘a 7:8, where it is said that ‘watchers of produce eat according to local practice, but not according to the Torah.' This means that here the rules of local practice take precedence over the rules of the Torah: even if local practice would not be in accordance with the Torah it would still be followed.^[269] However, because this rule is incorporated into the corpus of rules in the Mishnah, the reference to local custom is itself a sign of application of Jewish law.

The rule that in certain cases local practice is determinative is incorporated in a corpus of Jewish law and therefore it is itself a rule of Jewish (substantive, positive) law. The same can be found in modern-day international private law, where the law of country A can determine that in specific cases the law of country B will be applied. The rule that says so is itself part of the substantive (positive) law of country A.

In this latter instance of m. B. Mesi‘a 7:8 the word used to refer to local practice is not Amo as seen before, but npbna the Hebrew equivalent of np’bro in the Aramaic texts of P.Yadin 2-3 and 6. This means that the phrase with np’bro can be taken to introduce a reference to a spe­cific custom. In m. B. Mesi‘a 7:8 this is ‘local practice' or literally ‘the practice of the province.' In the specific case of P.Yadin 6, there is also a phrase following np’bro that could further specify the legal context of the document—the law behind it. As mentioned above, np’bro in general refers to a custom that is accepted by all parties. In the present instance, however, there is not merely a reference to a custom, np’hro as such, but there is a reference to what this custom encompasses in this specific instance: ‘as is customary for working...' The line is damaged at that point, but the restoration made by the editors is telling. They read the next word as a verb, a second person singular of the verb to till: ‘and you shall till.'^[270] Consequently the line should be read as ‘according to the customary manner of working “and you shall till.”' There seems to be a reference to a specific rule that was laid down for tilling land. A link with the Hebrew Bible immediately comes to mind as the command­ments there are formulated in this way: ‘you shall' or ‘you shall not.' The Decalogue is of course the best-known example.^[271]

In Deut 22:10 we find the negative commandment: ‘thou shalt not plough with an ox and an ass together.' The verb presents us with the Hebrew parallel of the Aramaic form found in P.Yadin 6.^[272] There might in fact be a reference to a specific rule stemming from a Jewish tradi­tion: the land tenant promises to work the land in accordance to the customary way of working as in ‘thou shalt till...' Because the passage is damaged the exact text of the rule that might be referred to cannot be determined, but I think the context makes it likely that a specific rule was intended. There are two reasons for this.

First of all, the reference to a specific rule is the only explanation for the occurrence of a verb form in second person singular, since the ten­ant manager is addressing the owner of the land and should thus refer to the work that needs to be done in first person singular ‘I will.' This is exactly what happens throughout the text, except for this instance. The verb form immediately following np'bro can in my opinion only refer to a specific rule of law stemming from the Jewish tradition. The assumption that there is a link with a Jewish legal tradition is supported by the fact that all words used for the agricultural activities are Aramaic, related to Hebrew, and not related to Arabic, as one would expect in a Nabataean Aramaic papyrus. I have commented on this above.

Further support for the assumption that the text indeed draws upon local Jewish law can be found in lines 12-13. The editors explain that the meaning of these lines is difficult to grasp. This is mainly because of the combination of verbs that suggest either positive, desired actions or negative, forbidden actions. Consequently we find in line 12 ‘uprooting' and ‘detaching' followed by a negated form of ‘reaping.' The problem for the editors is that ‘reaping' is in itself a positive activity, which should therefore not be forbidden. Why is the tenant expected to uproot and detach (which in the editors' opinion implies destruction of plants) and not reap (which in their opinion implies the positive act of harvesting)? The commentary tries to solve the problem by relating the verb ‘reap­ing' to ‘a destructive act, one to be avoided rather than the productive act of reaping.' q-s-r should then be understood to refer to a negative way of reaping, i.e. ‘cutting down.' Alternatively, there could be a link with Arabic qasara meaning ‘desisting of' which would then logically precede the following pwi ‘and not causing damage.'^[273] Nevertheless, the meaning of q-s-r as ‘to reap' in a positive sense (as a required duty) is the first expected, and also the one attested in the Hebrew Bible in combina­tion with the verb h-r-s thus yielding the combination of ploughing and harvesting.^[274] Such a combination would be quite logical here. Therefore, the meaning of these verbs should be looked for in another direction.

I mentioned above that the Mishnah gives several instances where the obligations of the tenant farmer are linked with local custom, i.e. in which local custom is said to determine what the tenant farmer should or should not do. The example given above from m. B. Mesi‘a 9:1 refers to the way of reaping produce. In this passage it is said that local cus­tom determines in what way produce is harvested. It can apparently be done by either cutting off (q-s-r), uprooting (‘-q-r) or ploughing (h-r-s). In this latter instance, ploughing is used as a method of immediately working the land after the harvest has been taken from it, i.e. ploughing should be understood as ‘ploughing afterwards' and not as a method of reaping the produce in itself.^[275] This means that dependent on local custom, two ways of harvesting could be used, denoted by the verbs q-r and q-s-r. It would therefore not be odd to have a way chosen in the contract. The tenant farmer could then say that he would not harvest by this or that method, but rather using such and such a method. This is exactly what is done in lines 12 and 13. The verb used for the required act is ‘-q-r, strengthened by the verb t-l-s, which renders the same mean­ing: detaching the whole of the plant from the earth, thus together with its roots. The other verb from m. B. Mesia 9:1, q-s-r, cutting off, is used for the unrequired act: the tenant is not supposed to reap the produce by cutting it off. It appears that a choice is made between two ways of har­vesting, either of the entire plant with its roots, or just part of it (by cut­ting it off above the ground). By understanding the verbs in this way it is logical why the verb that normally denotes reaping (in a positive sense) is here negated: this way of harvesting is not acceptable in the present case. Consequently, these lines can be seen as offering further informa­tion on what local custom is to be applicable to the arrangements.

I cannot explain the exact meaning of these lines in another way. If we do not take the verbs to refer to methods of reaping that are rejected and accepted, but as acts that are forbidden or permitted it is difficult to understand how they are to be related to the produce: why is the positive act of reaping forbidden, while acts with a negative sense are allowed or required? The only explanation I could think of is to understand differ­ent objects with the verbs. There are two verbs denoting the uprooting and detaching of something, these activities are desired. The following verbs denote ‘reaping’ and ‘doing damage to (a crop)’ and these are forbidden. The only way to comprehend the meaning of the combination is to take the first two verbs as referring to weeds: it is desirable that the tenant manager uproots and detaches weeds. However, while doing so he is not sup­posed to ‘reap,’ that is, to take out the grain, and not do damage to the crop. We can thus understand why two verbs with the negative sense of destroying what grows are desired while a verb with a positive sense is forbidden. For a connection between the uprooting of weeds and the reaping of grain I refer to the New Testament parable of the land owner who found his land had been infected with weeds by one of his enemies (Matt 13:24-30). His slaves wanted to take the weeds out, but the owner forbade this stating they might take the grain out in the process. Both weeds and grain were supposed to grow together and were to be separated in the day of harvest. This latter situation is clearly not meant by the land owner here: he does want the weeds to be taken out. But the tenant manager has to ensure he does not take the grain out as well. The beginning of line 12 is damaged; I am not sure another object (i.e. weeds) can be expected to have been introduced here. Therefore, I think it is more logical to look for an explanation that fits the legible text. This explanation I find, as explained above, in the different methods of harvesting, that would be an example of a choice of custom to apply to this specific contract.

Specific detailing of the arrangements according to known rules (local custom) could also be the reason for the recurrence of the mention of the reward for the tenant farmer (jDn). This reward was already men­tioned in line 7 and the repetition here in line 11 is a bit unexpected and difficult to account for. If we accept, however, that in line 10 a reference is made to a specific rule of local Jewish law, we can view lines 11-13 (and perhaps also the following lines) as referring to details of that spe­cific custom. Thus we could understand: according to the customary manner of working as in “you shall till.. where the share is one eighth and where such and such a way of harvesting is determined. The follow­ing remarks about not causing damage and not leaving the land unten­ded to in winter can also be linked with this as the Mishnah gives rules for liability in case of damage.^[276]

Following the above reasoning, the papyrus is an example of the applicability of Jewish law on a tenancy agreement, even though this was made up in Nabataean Aramaic. This proves that language is not decisive for the law behind the documents. As shown in other instances above, one has to look at internal evidence (references to law) to deter­mine the applicable law for each individual papyrus.

The end of line 14 presents the beginning of a conditional clause, to be continued in line 15. Line 16 is possibly to be read in conjunction, giv­ing some sort of liability clause. If understood this way, it is difficult to see though, what the tenant manager promises. Comparison with the liability clause in other contracts suggests that the tenant manager here states that the other can make no claims against him, ‘exclusive of what I have paid (or what I have pledged).'^[277] This leaves us with the question of what the tenant could have paid (a deposit/security). The reference to what the tenant pledged might make more sense if we understand this to mean that the tenant is only liable for what he pledged that he would do. If he does not do what he promised (he does damage the crop, he does neglect the land in the winter season) he is liable. However, if dam­age occurs through other circumstances (the weather, external causes), he is not liable. This would turn the liability into a limited liability. This fits well with the picture the Mishnah paints of specific determination of the obligations of the tenant farmer. The example of m. B. Mesia 9:2 was mentioned above, where the tenant farmer is not liable for the damage done if irrigation fails, if the contract specifies that the deal was made dependent on availability of irrigation.^[278]

m. B. Mesia 9:6 determines that in case of disaster (locusts, blight) the tenant farmer is not liable should the disaster have struck the entire province, but he is if the disaster only struck his specific parcel. The last line determines that the tenant farmer can never deduct damage due to natural causes from his payment if the contract was made for money. Consequently, if the tenant farmer is paid for his efforts, he cannot escape liability even if the entire region suffered the same as his parcel of land. In the present case, the contract is based on payment in kind: the tenant farmer will receive part of the produce. Therefore, the last rule stated in m. B. Mesia 9:6 does not seem to apply. This means that liability for damage due to natural causes (insects, weather/climate) was indeed limited.^[279]

If we take line 16 to mean ‘exclusive of what I have paid,' this could mean that the tenant farmer has paid for the lease of the land, and thus that the final line of m. B. Mesia 9:6 is applicable. The reference to ‘what I have paid' would then determine that liability for damage by natural causes could not be excluded. However, this seems to go counter to the meaning of the lines which clearly read that liability is limited, either to the amount of money paid by the tenant farmer or by the obligations he has undertaken. We could then understand the text as follows:

In the first situation, where we read ‘what I have paid' we can regard payment for the lease and liability as being based on the law, which is unlimited even for damage through natural causes. This liability is then limited in the contract by determining that liability will not go beyond what the tenant farmer paid for the lease. Taken this way, the text could show that Jewish law indeed applied to the contract and that the consequences of the general rules (as found in m. B. Mesia 9:6) could be mitigated by making a specific arrangement (limitation of liability to the amount of money paid).

In the second situation where we read ‘what I have pledged,' the clause limits liability by referring to the obligations the worker has specifically undertaken. He cannot be lia­ble for what goes beyond that. In this case, the terms of the contract determine for what results of his work or his negligence the worker will be liable. This fits in with Mishnaic practice, which shows as we have seen in m. B. Mesia 9:2 that liability could be excluded by making specific arrangements in the contract.

In general we can say that m. B. Mesia 9:1-10 makes it clear that specific arrangements in the contract would determine what the parties could expect from each other and that in case arrangements were not made, local custom or practice would prevail.^[280]

P.Yadin 8 and 9: different yet the same^[281]

It is not obvious to relate P.Yadin 8 and 9 with each other as they are dealt with in separate sections in their edition and called by different names. P.Yadin 8, a document in Jewish Aramaic, is designated as a pur­chase contract, P.Yadin 9 as a waiver. This latter designation is followed

I. Newman, “P.Yadin 8: A Correction,” JJS 57 [2006], 330-335). Newman understands P.Yadin 8 as a declaration by the vendor rather than by the purchaser, and compares P.Yadin 9 to P.Yadin 8, assuming both are the same types of document. This latter con­clusion is based on the similarities between the two documents in phraseology, similari­ties which also feature in my discussion. However, I am not sure that I can agree with Newman's suggestion that P.Yadin 8 is a declaration by the vendor. His explanation that a clause of clearance against claims by third parties is difficult to envisage from the view­point of a purchaser sounds like a compelling legal argument to me: indeed, it has to be the party who had ownership who gives clearance as to the validity of the sale towards the party who obtains ownership. Therefore, I would agree with Newman that a clause of clearance would sooner be found in a contract written from the viewpoint of the vendor than in a contract written from the view point of the purchaser. However, the clause declaring satisfaction makes it clear that the person speaking is not expecting anything anymore from the other party (‘you owe me nothing anymore,' line 6). This is logical if we assume that the purchaser is speaking: the reconstruction in Documents II has him declare he has received the animals (objects of the purchase), which would indeed mean that the vendor whom he is addressing does not owe him anything anymore. If we take the vendor to be the declarant as Newman suggests, line 5 would present a difficulty: ‘I have received' seems to be a logical reading, but this would not fit the context of a ven­dor's declaration. We would expect: ‘I have delivered' unless the ‘I have received' would see to the money to be paid by the purchaser. However, line 6 starts with mentioning the donkey (object of the sale mentioned in line 4), not the money. How can the vendor possibly state that the other party does not owe him anything anymore while there is no indication in the document that the money that the vendor is to receive has been delivered to him? (This question remains even if one reconstructs the final words of line 5 as reading ‘you have received'; the vendor would then declare ‘you have received the donkey... and you owe me nothing anymore,' the money is then still missing).

Another problem I discern in Newman's interpretation is connected with the other documents of sale Newman adduces as possible parallels for P.Yadin 8. If I am not mis­taken all of these documents deal with situations in which a sale is described as a future event, not as something that has already taken place. This is in any case true for P.Yadin 2-3 (if the sale of P.Yadin 2 had been immediately effected the sale of P.Yadin 3 would not have been possible) and for P.Yadin 21-22 (the dates have yet to be picked). P.Yadin 8 strongly gives the impression of a sale that has already been completed at least by the handing over of the sale objects. In the context this is logical: the sale objects are animals which can be handed over right away, while in other cases the sale object is an orchard (P.Yadin 2-3) and dates that have yet to be harvested (P.Yadin 21-22). In the context of sale objects that have already been handed over (in Newman's interpretation ‘you have received the donkeys'), it is difficult to see how the declarant can declare that he will be liable if he deviates: his obligation is already met with so how could he possibly deviate from what he has promised to do? This is only possible in a contract like the adduced parallel sale contracts where the sale is to be executed at some future time. It is also pos­sible in my interpretation of P.Yadin 8 as acknowledgement of receipt where the clause about liability for deviation can see to the amount of money the purchaser has to pay. In fact it seems quite logical that the purchaser declares that he has received the objects worth a certain amount of money, while the clause that he will not deviate sees to a future payment of this amount of money.

by a question mark to indicate the designation is a suggestion.⁴⁰ In my opinion it is debatable whether this is a waiver. To make my point I will discuss P.Yadin 8 first.

This papyrus is described as a purchase contract, contrary to P.Yadin 2 and 3 which are described as sales contracts. This contrast seems acceptable to me, since in P.Yadin 2 and 3 the viewpoint of the vendor is taken, while in P.Yadin 8 the purchaser makes a statement focusing on his obligations.

However, I think the word purchase contract is a bit unfortunate as the word contract suggests reciprocity: two parties obliging themselves by a legal act. In the case of sale this is true: one party conveys some­thing, the other pays a price for it. The contract expresses the rights and obligations of both parties. The purchase contract on the other hand presents a situation from a one-party-viewpoint: the purchaser declares he has received his object(s) and is satisfied, he declares he will not ask for more, he declares liability in case he acts contrary to these promises. Yet there is no mention of what the vendor has to do. This means that the purchase contract is not like a contract at all (conveying the sense of reciprocity) but more like a unilateral declaration on the part of one of the parties. Therefore, I would rather style it an acknowledgement of receipt.⁴¹

Consequently, I am not sure that as Newman states ‘life would be much simpler if we could demonstrate that Yehoseph son of Shimon did not buy a donkey and another ani­mal from his brother, but rather sold them to him': as just demonstrated, taking Joseph as the vendor also causes some problems with the interpretation of the clauses present in the extant text. Especially in the light of lines 5 and 6 I believe we should retain the interpretation that Joseph was the purchaser. Following this assumption I understand both P.Yadin 8 and 9 as acknowledgements of receipt. Newman's comparison of the doc­uments and conclusion that they are alike supports my conclusion that the same type of document is at issue (and my observation that documents in Jewish and Nabatean Aramaic should be compared and studied side by side).

I note that Newman makes the observation that ‘both seem to have been issued by or under the auspices of a third party—perhaps some sort of official' (“P.Yadin 8: A Cor­rection,” 335). I refer to my discussion in small print below, of the possible background of this official presence and the reason (not touched upon by Newman) why this official signed in Greek to confirm the deed (Documents II, to which Newman refers, does not accept the signature in P.Yadin 9 as Greek [see n. 58 below], but I believe the traces read like Greek characters, which would make P.Yadin 9 into an exact parallel to P.Yadin 8: declaration with confirmation by an official in Greek; see small print below, 114-115).

⁴⁰See Documents II, 268-269.

⁴¹ I have chosen acknowledgement of receipt instead of receipt as such, since a receipt is often a specific kind of judicial document, for example, in the instances in the Salome Komaise archive (P.Hever 60 and 12). Therefore, the use of the word ‘receipt' could be just as misleading as the use of the word ‘purchase contract.' Acknowledgement of The difference made by the editors between a sales contract and purchase ‘contract’ can be illuminative in this sense that the contracts could be seen as representing different stages of one and the same process. First the vendor expresses himself in a sales con­tract, stating he has received the purchase price and endows the purchaser with full power etc. In a purchase ‘contract,’ the purchaser states that he has received the object of the sale, that he can claim no more from the vendor and that he will be liable if he does so anyway. This means that such a purchase ‘contract’ follows the sale. This does not mean that every sale had to have a purchase contract as well, as in general both a sale and a purchase are valid, even if there were no contract at all. The contract merely serves to record what the obligations of a particular party are and/or what obligations have already been met. However, I think it is significant that we find these two types of contract, the sales contract and the purchase ‘contract’ (or rather the acknowledgement of receipt), in one archive concerning different types of objects. In the sales contract a date orchard is concerned, i.e. real estate, an immoveable, while the purchase ‘contract’ concerns animals, i.e. movables. It could be that this difference determined what kind of contract was written. Just imagine the scene: a person who wants to sell an orchard will meet potential buyers, negotiate, have a contract drawn up and probably hand over the property afterwards. But a person selling a donkey or a cow is in a market place, negoti­ates, hands the animal over and then the other party declares himself satisfied towards him. The so-called purchase ‘contract’ indeed serves as an acknowledgement of receipt: a notice saying that the other party has met with his obligations and no more claims can be made.

P.Yadin 9 is described as a waiver, based on the editors’ observation that ‘this document is not formulated in the usual manner of sales contracts, and may rather represent a waiver of claims pursuant to a sale instead of an actual record of sale.’ The designation ‘waiver’ then denotes that the document contains a unilateral declaration by the vendor.^{[282] [283] The ques­tion is, of course, whether the declaration made in the papyrus text was really made by the vendor. Reading the extant text it is obvious that P.Yadin 9 closely resembles P.Yadin 8: in comparing the two the miss­ing parts in P.Yadin 9 could be filled by looking at P.Yadin 8. Therefore, I would suggest P.Yadin 9 presents us with the same type of contract as P.Yadin 8: a unilateral declaration by the purchaser, i.e. a purchase ‘con­tract,’ or rather (considering the objections raised above to the use of the word contract), an acknowledgement of receipt. This could explain for the editors’ observation quoted above that the document is not ‘formu­lated in the usual manner of sales contracts.’}

Above I remarked that it seems sales contracts were drawn up for real estate and pur­chase ‘contracts' for movables, like the cattle of P.Yadin 8. The object of the sale cannot be found in the extant text of P.Yadin 9, therefore the sale could well have concerned movables. The editors state that ‘it is to be assumed that a parcel of land was sold,' but I do not find evidence for this in the extant text, nor for their assumption that ‘the vendor granted the usual clearance to the purchaser.' The clause they specifically refer to to base their claims on (‘line 6 and following') is the same clause that can be found in P.Yadin 8 where movables (cattle) are concerned and the purchaser declares his satisfaction to the vendor.^[284]

Since the two documents are so alike in their structure and use of standard phrases, I think it is logical to assume they are declarations of the same type, i.e. by the same party (in both cases the purchaser), most likely also concerning the same kind of object of sale (movables).

Perhaps the editors thought of real estate because the amount of money mentioned in the text (twenty sela‘s) is substantially higher than the price paid for the two donkeys in P.Yadin 8 (five sela‘s). However, we do not know whether P.Yadin 9, for example, concerned the purchase of more than two animals, or of animals of a higher value. I further note that in P.Yadin 8 the value of the animals is given as five sela‘s, while there is another amount of money mentioned later on in the text.^[285] Although the word cannot be read properly, the amount given there is in any case not five (the editors give eight, I think ten could be an option).^[286] This means that in the later clauses of the ‘contract,' an amount of money may be mentioned that is not representative for the true value of the transferred object(s) of sale, but rather represents a penalty or a compensation. The clause in P.Yadin 9 that gives the amount is probably such a later clause (connected with liability). Therefore, twenty sela‘s may not be the value of the goods concerned here at all. Consequently, nothing in the extant text determines what the object of the sale was; the structure and use of clauses comparable to P.Yadin 8 suggest it was the same type of contract. This means that the declaring party is the purchaser (and not the vendor), and that the object of sale most likely concerned movables.^[287]

P.Yadin 8 and 9 then present us with two instances of an acknowledge­ment of receipt, a unilateral declaration by one of the parties concern­ing the obligations of the other party towards him. In both cases, one Yoseph is the declaring party and it can be assumed that it is the same man.^[288] Indeed, there is nothing in the text that goes against the assump­tion that both documents were written on the same day. They are in any case written by the same scribe.^[289] I therefore take it that the two documents are two acknowledgements of receipt made up on the same day by the same scribe, apparently completing business matters Yoseph had been involved in. I can imagine him having the acknowledgements written in a sales context (perhaps the market place mentioned above). If this is true, if the two documents indeed represent the same type of document, drawn up on behalf of the same person, one wonders why one of them is in Nabataean Aramaic, the other in Jewish Aramaic. This question is all the more pressing because the documents were written by the same scribe. Could it be that a division between documents in the one or the other language has less substantial implications than has hitherto been assumed? I have already discussed, concerning P.Yadin 2-3, that the assumption that the deal between Abi-‘adan and Shimon in P.Yadin 3 was made ‘under the provisions of Nabataean law'^[290] can­not solely be based on the use of Nabataean Aramaic for the deed, but should receive additional support from what the document actually shows about arrangements. The document, however, does not testify to a clear-cut adherence to Nabataean law but, on the contrary, allows for deviation from general law (‘as is proper') by specific arrangements, related to Jewish law. In the case of P.Yadin 6, there is even stronger evidence that a document in Nabataean Aramaic can refer to a Jewish legal framework. Again this depends on reference to the law behind the document, by such phrases as ‘ as is proper,' ‘as is customary according to...' etc.

If the same person has two documents drawn up on the same day as part of his ongoing business exploits, while the two documents display great similarity in structure and contents, it is unlikely that they would refer to two different legal contexts. Indeed, since they are so alike in their structure and style, it is obvious that they refer to one legal context or perhaps to a common aspect of different (merging) traditions. One type of acknowledgement of receipt was obviously used by this Yoseph, a Jew, to deal with business matters. One type of acknowledgement, nev­ertheless, featured in two different ‘languages' Why was this done, if it did not have any significance for the legal context? I want to suggest that it related to a convention of addressing a party in the most com­mon script (or language). This means that Yoseph can be expected to use Nabataean Aramaic in his dealings with Nabataeans, while he might have used Jewish Aramaic in dealings with fellow Jews. We will come to see that the documents with the strongest Jewish flavour are writ­ten in Jewish Aramaic.^[291] In P.Yadin 8 and 9 we could find an instance of the tendency to use Jewish Aramaic in dealing with fellow Jews: the other party in P.Yadin 8 is a Jew, namely Yoseph's own brother.^[292] The party in P.Yadin 9 cannot be found in the extant text, but if my argument concerning the languages holds true, it must be assumed that he was a Nabataean.^[293] P.Yadin 8 and 9 would then paint us the picture of Jews and Nabataeans conducting business in languages that were familiar to them, or that best suited the context, while the overall legal framework seems to have been the same. This implies that the documents need not refer to Nabataean law specifically but rather to a more general indig­enous tradition or custom.^[294] The example of P.Yadin 8 and 9 shows that even when different languages were used—perhaps to accommodate different business partners—reference was made to this general frame­work. Nevertheless, both types of papyri can make distinctions as to the applicable law for certain arrangements, thereby adding rules of specific law to a framework of general law.^[295]

An interesting detail of P.Yadin 8 is the Greek signature in the last line. In Documents II this signature is apparently attributed to a witness: ‘and a third witness signed in Greek.'^[296] Another suggestion is made however in the special notes in the physical description of the document. Here it is said that ‘the Greek signature may be that of an official who confirmed the deal.'^[297] This raises the question of what kind of an official could be meant here and what his part in the legal act was. The Commentary does not clarify this point. Did the official indeed merely confirm the deal in the sense that he acknowledged the validity of the acknowledgement of receipt? This could be easily envisaged if we keep the market scene suggested above in mind. The animals have been handed over and the purchaser declares himself satisfied. An official who has witnessed the deal, scribbles his signature underneath to give the acknowledgement of receipt official recognition.

Regardless of the exact role of the official in the legal act it is worthwhile to pose the question of why he chose to use Greek. We have to assume he could understand Aramaic, otherwise he could not have understood the deed he was sanctioning. Nev­ertheless, he chose to add his signature in Greek. This is all the more remarkable when one notices that the acknowledgement of receipt was in Jewish Aramaic, as well as all of the signatures, including the signature of the scribe, who signed in Nabataean in other documents.^[298] This latter fact makes the appearance of a Greek signature stand out even more.

The suggestion that an official was concerned leads to the assumption that he used Greek for an official purpose: since he represented the Roman presence in the area or at least had a connection with the Roman government. In that case we have to conclude that the official could read Aramaic but chose to use Greek, the official language, to add his confirmation. This then presents us with an interesting instance for the language issue: Jews drawing up a deed in their own language and having it sanctioned by an official in the official language.

Since I have linked P.Yadin 8 with P.Yadin 9, suggesting that the documents were drawn up on the same day as part of the business transactions of Yoseph, it would be logical to expect a Greek signature in P.Yadin 9 as well (preferably the same signature as in P.Yadin 8). However, the Greek signature of P.Yadin 8 cannot be properly read and for that reason comparison with a signature in P.Yadin 9 would already be extremely difficult. A further problem is the damaged state of the signatures in P.Yadin 9 itself. The

last signature found there, in my opinion, presents us with Greek characters, and I even think that close comparison of the traces found in P.Yadin 8 and 9 leaves room for the idea that the signatures were by the same hand. I point to the remark in Documents II, 269, that the last signature may have been by ‘an official confirming the deed.' The edi­tors take the signature to have been ‘in the Nabataean script' though.^[299]

P.Hever 60 and 12: Aramaic where Greek is expected

P.Yadin 8 and 9 discussed above show that the use of two different types of Aramaic need not imply that the documents refer to different legal frameworks. The same thing could be argued for the use of Aramaic and Greek. An obvious example is provided by the Salome Komaise archive. P.Hever 60 and 12 of that archive present two receipts with virtually the same structure and contents. I refer to the edition where the resemblances are detailed.^[300] The main difference is that in the receipt of P.Hever 60, the tax collectors address the tax payer and ascertain that they have received the amount he had to pay by way of a middle man. The receipt was apparently accordingly kept by this middle man. It ended up in the archive because the middle man was probably Salome Komaise's hus- band.^[301] In P.Hever 12, the tax payer is addressed directly: it was Salome Komaise and she kept the receipt herself. The receipts were written in 125 and 131 respectively, the latter presenting us with a case of a late document in Aramaic. The choice of Greek in P.Hever 60 seems to be obvious: when we look at the Babatha archive we see that by 125 all documents are written in Greek. Opting for Aramaic in P.Hever 12 is unexpected: why was the receipt not written in Greek like the other one? This question presents itself all the more strongly when we consider that the structure of the Aramaic document is very much like the Greek one. The receipt has the dating at the end of the document instead of in the beginning, which is very unusual for documents in Aramaic.^[302] It has further been remarked that the lines making the receipt declaration are exact parallels of the Greek version found in P.Hever 60, the obscure Aramaic 'OT/'O^ rendering Greek τιμή.^[303] This seems to imply that P.Hever 12 and 60 were drawn up according to the same model, or that P.Hever 12 was an Aramaic rendering of a Greek text. This makes it even more difficult to understand why Aramaic was used. In my opinion, it shows that Aramaic could still be used for legal documents. After all, why would anyone bother to make an Aramaic rendering of a Greek model if such a rendering would serve no purpose? Apparently, even though Greek seems to have been preferred as the language for legal documents, Aramaic could still be, and was, used.^[304]

Whether the use of Aramaic could be linked with a custom within a certain group is difficult to say. The first tax collector mentioned styles himself vis-à-vis Salome as ‘your brother,' which could indicate a real blood tie or an affectionate relationship.^[305] In line 6, Levi, Salome's father, is described as 33. This could be understood to designate a common tie, ‘father Levi,'^[306] indicating that he was father both of the tax collector and the tax payer. This inference is induced by the mention of ‘your brother' above. How­ever, the patronymicon of the tax collector concerned shows that he was not a son of Salome's father. Perhaps they were related on the mother's side. This latter assumption could explain the mention of ‘your brother,' but obviously not for the reference to Levi as father of both parties. I think it is safer to assume that the mention of ‘father' refers to Salome, thus to Levi as Salome's father.^[307] From other documents in the archive one can infer that Salome's father died.^[308] Perhaps the tax payment had to do with his death; perhaps Salome paid the taxes in his stead. In paying taxes over the property of her deceased father, Salome could be considered to be paying taxes in his stead. Legally, this would not be correct since the heir is considered to be the new owner of the property from the testator's death onwards. Consequently, it would have been pointless to refer to the property of a deceased person as if it was still his with another person taking care of it and paying taxes over it in his stead. However, it is possible that the situation was con­sidered as such, especially by people who were close to both the deceased and the heir. In this specific situation, one can imagine the tax collector referring to Levi's property as if it were still his and to Salome as acting (as heir?^[309]) on her father's behalf. Considering the vocabulary used to refer to people in this text, vocabulary which draws on more or less affectionate ties between the parties, we can assume that the parties shared a common background, that they were indeed part of one, specific, group. This could have caused the writing of the document in Aramaic. There does not seem to be a difference in the legal framework the Greek and Aramaic receipts refer to.^[310]

P.Yadin 5,17: depositing ‘according to the law of deposit’

This subgroup consists of two papyri, both written in Greek. P.Yadin 5 is the earliest papyrus of the corpus in Greek. In fact, it is hard to explain why it was written in Greek at all. The date, 110 CE, could suggest that the Jews began to use Greek in their legal contracts right after the con­quest of 106. However, later papyri like P.Yadin 6-10 (119-122/125 CE) are all still in Aramaic. This shows that the use of Greek was not self-evident.^[311]

Lewis suggests a restoration for the first word of the legible part of the papyrus: eppqveia, ‘translation.’^[312] This would mean that Greek was not the original language of the document, but that this part of the papyrus contains a Greek translation of an otherwise (probably) Aramaic origi- nal.^[313] In that case this papyrus does not show a transfer from the use of Aramaic to the use of Greek in legal documents, but the prolonged use of Aramaic combined with the introduction of a Greek translation. The question is then of course what the function of this translation was. Is it proof of foreign influence?

The Aramaic papyri that follow (P.Yadin 6-10) do not have a transla­tion of the full text in Greek (at least such a translation has not been recovered), although P.Yadin 8 has a signature in Greek that could be the confirmation of the act by an official.^[314]

I explained in my discussion of P.Yadin 8 above that there does not seem to be a need for a Greek signature there: the document was written in Jewish Aramaic and the signatures of the purchaser, the witnesses and scribe are in this script.^[315] This is significant for the signature of the scribe, since in other documents from the archive he signs in Naba­taean. Thus it appears that all persons involved used the Jewish script and this makes the appearance of a Greek signature all the more remarkable. It was suggested to take this signature to be from an official who confirmed the deed. This is an attractive suggestion, which could denote that Greek was used for official purposes.^[316]

It can then be assumed that the present act was originally made up in Aramaic and translated into Greek. The use of the specific legal term napa0f|Kq at least seems to suggest that the translation was made for a specific legal reason. It is unfortunate that we do not know what the Aramaic original read. The Aramaic counterpart of napa0fKq might have been able to cast an interesting light on the nature of the legal act concerned and the use of several languages for the main text.^[317]

It is in any case clear that the fact that the (recovered part of the) papyrus is in Greek does not in itself mean that there is a breach with the previous papyri; in any case not with their legal orientation. As argued above, indications of the legal background of the papyrus text should foremost be sought in its contents.

The parties concerned are Joseph, son of Joseph, and his nephew Jesus, son of Jesus. Joseph states that he acknowledges that he owes Jesus an amount of money.^[318] Then the word napa0fKq is used (in the accusa­tive case) followed by a row of genitive cases: ‘assets of silver, contracts of debt, investment in factory, value of figs, value of wine, value of dates, value of oil, and of every manner [of thing] small and large, from every­thing which was found [to belong] to your father and me, between me and him.' This phrase makes two things clear: the objects concerned were part of a business and this business belonged to Joseph and Jesus' father (also called Jesus, and the brother of Joseph). The fact that the son is now entitled to these items makes it clear that the partnership between Joseph and Jesus had ended on Jesus' death and that his son Jesus was entitled to the property in his position as his father's rightful heir.^[319] We can easily imagine that the remaining business partner could not simply give the share to the heir: some items could not be divided; some items were not capitalized (like the contracts of debt). The items were part of the business and could not very well be taken from it and given to a third party. Therefore it is sensible—and this is in fact com­mon procedure in similar situations nowadays—to determine the value of the share the heir is entitled to and pay the share to him in money or acknowledge a debt to this amount. The papyrus presents the latter situ- ation.^[320] The use of napa0f|Kq has to be understood in this context. Lewis translates ‘as a deposit of.’ Perhaps it would be better to read, or in any case understand, ‘in the form of a deposit of,’ denoting that the speaker expresses a value in money that is equal to a deposit of the following items. He makes clear that he does not owe the money as such, but that there are items in his care that belong to the other person and together constitute the value he mentions. This was probably done to formalize the relationship between the remaining partner and the heir.

This was necessary since neither Roman nor Jewish law had the heir become partner: the partnership was considered to be personal and consequently it ended with the death of the heir’s testator.^[321] The heir was entitled to the property his testator held in the business and conse­quently he could be considered a creditor of the business. But to what was he entitled: the actual property or a value in money? It would be dif­ficult for the partner to hand over the property and for the heir it might not even be convenient to receive property of that nature. Therefore, it was important for both to formalize their relationship. By the present document the heir gives the property to the partner by way of deposit and is declared to be entitled to the value of the goods expressed in a fixed amount of money. Thus the partner can continue the business and the interests of the heir are secured.^[322]

Lewis made a comparison with Roman soldiers in Egypt, who could not marry during active service but did live with women in long-term relationships. If they received dowries, they called them deposits, sug­gesting that the woman had entrusted them with money for safekeeping. Lewis says this was done ‘to conceal the true nature of the transaction and thereby to circumvent a legal impediment.'^[323] This is true for the example he mentions: dowries are called deposits since a soldier cannot receive a dowry.

Lewis mentions M.Chr. 372 (= Jur.Pap. 22a i.9-10), for a remark by the prefect that ‘we realize that the deposits are dowries.'^[324] See for a discussion of more cases of ‘concealed dowry,' Sara E. Phang, The Marriage of Roman Soldiers (13 B.C.-A.D. 235): Law and Family in the Imperial Army (Leiden: Brill, 2001), 22ff. In all of the cases Phang discusses (from P.Catt. I, III and VI) the return of money to the woman based on the actio depositi is refused, because the matter at issue is said to be a concealed dowry and not a real depositum. Since the woman was not married to the soldier, she could not ask for return of the dowry. Only wives could do so, basing themselves on the actio rei uxoriae, the action of the wife to ask for return of her dowry.

In the present case I find it hard to see what would have to be concealed or what legal impediment is circumvented. It would be better to say that a deposit is used to enable the transfer of money or things in a situa­tion where there is no formal legal relationship between the parties or it would be hard to make such a relationship plausible. In the case of the soldiers it is not logical they would receive money or items with­out a good reason for it. Since the woman is not the wife of the soldier, the receipt of money cannot be related to their relationship (marriage/ dowry). Therefore, the deposit is used to be able to express that money has been received by the man and is owed to the woman without stat­ing for what reason. In the present case the relationship between part­ner and heir is, as explained above, problematic as well. The choice of a deposit arrangement helps to formalize this relationship. In my opin­ion therefore, deposits are used in cases where there is no regular legal foundation for the act and where a relationship between the parties is established or formalized that can provide such a legal foundation.

The value of the share of the deceased partner is determined and explicitly set apart from another debt: an amount of money that has to be paid to the wife of the deceased. She received, as the papyrus stated, the money as ‘wedding money' and had it (held it) ‘against' her hus­band. Wedding money most likely refers to a dowry.^[325] As we shall see in P.Yadin 10, the marriage contract of Babatha and her second husband, the husband acknowledged receipt of the dowry and the obligation to repay it on demand. The dowry was in any case repaid at the death of the husband. Since under Jewish law a wife could not inherit from her hus­band, the dowry had to provide for her. Until the dowry was paid to her by the heir(s), the widow was maintained out of the deceased's estate. Originally, the widow had to be maintained from the estate during her widowhood (thus the arrangement only ended at her remarriage). But in local Judaean custom it became accepted that the maintenance ended when the heir(s) had repaid the dowry.^[326]

It was stated explicitly in marriage contracts that all the property of the husband was pledged to meet the obligation to repay the dowry.^[327] This meant that the wife had a right even to sell the property for main­tenance. Her right to it was established by the marriage contract and needed no further title or proof. The security arrangement can be found in P.Yadin 10, and in P.Yadin 21-22 Babatha actually used her rights to her deceased husband's property by selling crops of groves that had been his.^[328]

In the present case, the right of the widow to the dowry is mentioned explicitly and apparently apart from the debt of the partner to the heir. This makes it in my opinion clear that the husband had put the money of the dowry into his business thus burdening the business with the claims of the wife in case of repayment of the dowry. This means that since the partner-husband died, there were two claims that had to be met with: the claims of the heir to the inheritance (the share of the deceased in the business) and the claim of the widow to her dowry. Both are acknowl­edged. That this is done in two separate statements shows that the claim to the dowry is indeed separate from the claim of the heir(s). This con­firms that the dowry is not part of the inheritance of the deceased. At the death of the husband, the dowry reverted to the wife as her own prop­erty, based on (arrangements in) the marriage contract. All the heirs had to do was actually hand over the property, or pay the sum of money determined in the marriage contract.

It could be debated in whose ownership the dowry is during marriage. If the husband is not entitled to sell, I would accept he does not have ownership, since he does not have power of disposal. It would also depend on what we take to be returned at dissolution of the marriage. If the original property should be returned, this suggests the husband cannot dispose of this property and that implies that he is not the owner (at least not in the usual sense of ownership). It would in such a case be better to say the property is entrusted to him or he is holder of the property. However, if we take the sum of money determined in the contract to denote what has to be returned, it would be easier for the husband to really use the property during marriage (and perhaps even sell it) since he would always be able to return the agreed sum in money. I do not think the discussion is of much importance for the instances in the Babatha archive, though, since we are not concerned there with a situation during marriage, but after the marriage ended (after the husband died).^[329] Even if the husband were considered to be owner during his lifetime, the property would not become part of his inheritance: his power over the property is connected with his position as husband. On his death the wife can claim the property (or the sum of money equal to the dowry) as her own property. A further indication for this is that the claims of the wife are not based on the law of succession (or on a will or gift), but on the marriage arrangements. P.Yadin 5, where the dowry obligation is men­tioned separately from the debt the business owes the heir, supports this view.

A distinction has to be made between the property the wife brought in, the actual dowry, and anything the husband added to that in the marriage contract. In Jewish law, it was usual that the husband promised something to the wife on top of her actual dowry. The so-called ketubba (or marriage settlement) determined the total sum of money that had to be paid to the wife on dissolution of the marriage.^[330] After the death of the husband, the property the wife brought in, the actual dowry, reverted to her as her own prop­erty, while what the deceased husband owed her on top (the ketubba) had to be paid by the heirs. Therefore, the wife can claim her own property back,^[331] while she is at the same time entitled to the amount of money based on the ketubba, which is part of her husband's estate and needs to be paid by the heirs.

It does not seem to be clear whether the marriage contracts drawn up at the time dealt with a dowry as such (and possible addition by the husband) or with a ketubba obligation (for the return of a value in money). For example, in P.Yadin 10 the value of the dowry is determined (four hundred denarii or zuzin), while no actual property is mentioned (like silver, gold, female adornment, household utensils etc.). The Commen­tary mentions: ‘his [the husband's] obligation for the amount of the dowry that the wife is bringing with her in marriage.'^[332] It seems that the property the wife brought with her was expressed in terms of money, thus facilitating a later return.^[333]

The part described as col. ii of fragment a in the textual edition prob­ably contained arrangements for repayment connected with security clauses. Plausible restorations are ‘I will give back,' ‘with certainty' (part of the guarantee clause), ‘twofold.' Most likely this part of the papyrus contained the clause about immediate repayment (a deposit could be demanded back at any time by the depositor) and about liability.^[334]

In any case, there is a clear mention of ‘twofold' to refer to the liability. If the party speaking does not meet his obligations (in casu most likely repayment of the deposit) he has to pay twofold. Lewis already pointed to the fact that retribution in duplum is not attested in papyri from Egypt in the period prior to Roman rule, suggesting that the Romans brought the idea with them, but that does not signify much for the present papy­rus since, as Lewis adds, retribution in duplum is known in Jewish law from Exodus onwards.^[335] This means that the fact that the depositary has to pay twofold can be connected with both laws.^[336]

In Jewish law there are several cases in which property of one person is entrusted to the care of another. There are several types of deposit attached to degrees of liability, one coming close to actual loan. The sys­tem is derived from Biblical rules but developed and extended by the rabbis. It is thus not clear to what extent it was known and used in the time of the present papyrus.^[337] In any case, it is clear that Biblical law knew cases of retribution in duplum.^[338]

In Roman law entrusting an object to another person for safekeep­ing was arranged for by the depositum. There were various types of depositum, for example, depositum irregulars, that was so described because it deviated from the normal rule that the property deposited was returned. Depositum irregulars was used for the deposit of money or in general fungibles. Contrary to the idea with depositum that the prop­erty was only kept and not used (consumed), with depositum irregulare the person entrusted with the depositum consumed the goods or used the money and returned its equivalent. This comes close to the pres­ent transaction where the property is evidently used by the depositary. However, there seems to be a difference between returning the equiva­lent of property and the present case where the value of entrusted prop­erty is estimated and this value in money remains owed. In my opinion, the idea of the arrangement here is not to deposit property with some­one for use and later return the equivalent, but to convert a debt of the amount of that property into a debt in money. As I have explained above, the deposit here helped to formalize the relationship between the parties involved.

Considering the context of the papyrus (the relationship between the parties) it seems more likely that the deposit form was chosen for practi­cal purposes than to assume it was used to specifically connect to Roman law (or legal terminology known from Roman law).^[339] Since the deposit was used to formalize otherwise obscure relationships, this may have induced the parties to style the act a deposit. The retribution in duplum seems to have been due to a Biblical rather than a Roman influence.

Col. ii appears to have contained an addendum (see the word ernypaqif] used in line 14), but it seems it is here not used to add some words to the main text as in P.Yadin 22, but rather to start a sort of short rendering of the main text or a declaration by the parties (compare Lewis, 40. It is in any case clear that this part is followed by the list of witnesses (see col. ii of fragm. b). I think col. i of fragm. b contains information about the exact nature of some of the items encompassed in the partnership between the person speaking and the deceased father of the other party as it is said ‘that we have bought, me and your father' and there is mention of ‘three declarations of debt without written proof.' There are fur­ther sums of money mentioned and there is a reference to future payment of ‘the above mentioned silver' and the division of a courtyard. But what all this exactly means escapes us due to the fragmentary status of the papyrus. Perhaps the debts are mentioned because they had been (until then) ‘without written proof.' By mentioning them here the speaker can give the heir further certainty about financial matters.^[340] It appears that he promises to pay at least some money^[341] and divide property. I am not sure whether this property was part of the depositum. Since the deceased was a brother of the speaker there may have been other undivided property between them (for example an inheritance from their father?) that needed to be divided between the entitled parties.^[342]

I have argued above that the deposit arrangement need not necessarily point to Roman law. Indeed considering the arrangements in the papyrus and the context of other papyri with a thoroughly oriental, in some cases specifically Jewish background, I think it is logical to assume P.Yadin 5 does not draw on a Roman form of deposit. It seems the deposit form was only used to formalize the relationship between the remaining part­ner and the heir, or to convert a debt in property into a debt in money. Consequently, P.Yadin 5 might not be the best example to determine what law was applicable to the deposit. Fortunately, P.Yadin 17 presents us with a deposit as well. Not only has this papyrus suffered less dam­age but arrangements are also made more explicitly, even referring to a specific legal background.

P.Yadin 17 dates to February of the year 128.^[343] Judah, the son of Elazar Khthousion, whom we have met as the land owner in P.Yadin 6, is the declaring party. He acknowledges to Babatha, here explicitly styled his wife,^[344] that he has received from her three hundred denarii ‘on account of a deposit.' The word deposit recurs in the phrase that he will ‘have and owe' the money ‘on deposit,' that Babatha can request ‘the aforesaid denarii of the deposit' and that Judah will be liable ‘in accor­dance with the law of deposit' for a twofold repayment of the deposit.^[345] Thus it is clear, far more than it appears to have been in P.Yadin 5, that there is reference to a defined legal framework. For P.Yadin 5 it could be argued that the deposit was chosen to clarify an obscure legal relation­ship between a former business partner and the heir of his deceased associate. The choice for a deposit instead of an ordinary loan seems to have been dictated rather by circumstances than by a desire to stay within a certain legal framework. Here the situation is clearly different, as the word for deposit is repeated several times and liability is said to be ‘according to the law of deposit.' This infers that there are clear legal rules the parties refer to. The question is of course to what law these rules belonged.

Judah is said to acknowledge something ‘of his own free will and con­sent.' Lewis states that it is hard to determine whether this expression stems from a Roman or a Semitic source. He points to the fact that the Greek word for ‘will' (fieXqoi^) is not found in the papyri from Egypt or Dura, the Egyptian ones use skwv.^[346] The expression found here, there­fore, seems to be a translation of an Aramaic expression THyi JD ‘of my free will, according to my desire.'^[347]

If we accept an Aramaic original, this is apparently translated into Greek by two terms: OeXqoti and ovvevSoKqoii. Although there might not be a particular reason for this, it could have been caused by the lack of a Greek word to adequately convey the meaning of the Aramaic word nip“l. means both ‘desire, will,' in the sense of your will to do

something, and your agreement to it.^[348] In a Hebrew contract the word is used both in its sense of will and agreement/permission.^[349] In this latter case it is used to express the agreement of one of the parties to have another person sign on his behalf. Perhaps the scribe sought to express these different meanings of the word by translating them into two separate Greek words.

The arrangements are pretty clear: Judah acknowledges the receipt of three hundred denarii of Babatha as a deposit. It is said he is to hold them and owe them as a deposit. On Babatha’s request or the request of someone acting through her or for her he will return the denarii ‘of the deposit.’ If he is requested but does not do so, he is liable ‘according to the law of deposit’ for a twofold repayment and damages. He is further said to be ‘answerable to a charge of illegality in such matters.’ Babatha or the person producing the contract on her behalf has the right of execu­tion ‘upon Judah and all his possessions everywhere—both those which he possesses and those which he may validly acquire in addition—in whatever manner the executor may choose to carry out the execution.’

Especially in comparison with P.Yadin 5 there is a strong emphasis on the fact that the act is an act of deposit, as this is said several times in a couple of lines. Furthermore, the phrase ‘according to the law of deposit’ makes it clear that the arrangements made are taken from a set of rules applying to deposit. However, a clear reference to a certain law, with a description (‘according to the law of Moses and the Judaeans’ in P.Yadin 10) or an adjective (‘according to “Greek Hellenistic” custom’ in P.Yadin 18) is not found. Closer consideration of the arrangements’ contents should therefore determine what law of deposit was meant.

The sum put on deposit is said to have been received by Judah, he is to hold and owe it in deposit. On request of the other party he has to return the money. This is fairly general: the idea behind deposit is that the money can be requested to be returned at any time, contrary to loan where there is a fixed period for the loan to last. That another person can act on Babatha’s behalf is not odd either; the phrase ‘through her or for her’ is found in P.Yadin 11 as well.^[350]

Liability is said to be for the double amount of the deposit and dam­ages, Judah is at the same time ‘answerable to a charge of illegality in these matters.' Since it is not completely clear what this could mean, these remarks seem to provide the best clues for identification with rules from a specific law.

In Roman law, the deposit usually concerned goods, not money. This was due to the fact that depositum was originally the transfer of a thing to another party for safekeeping (without any kind of reward), while the thing had to be returned to the owner on request. The essence of deposi­tum was that the thing itself would be returned.^[351] Depositum was a real contract: the legal tie between the parties was established by the hand­ing over of the object.^[352] It was determined that the depositary could not use the thing; doing so would constitute furtum (theft). In early Roman law, based on the law of the Twelve Tables, the only action thus avail­able was the actio furti, the action against a thief. However, as this actio was found to be too strict, the praetor created the actio depositi.^[353] This actio could only be brought in cases where no kind of remuneration was determined. If it was, the act was not depositum, but locatio et con­ductio (contract of letting and hiring).^[354] The lack of remuneration was deemed to be vital for depositum because the entrusting of the object to the depositary benefits the depositor, which goes against him asking for interest (contrary to a loan, where it is not the person supplying the object but the person receiving it that benefits from the act, and remu­neration is justified). In our case we see that there is no remuneration, which sustains the idea of the depositum.

The most important question for a correct interpretation of the situ­ation here is whether we should expect Judah to have used the money. An affirmative answer is the most logical as people usually seek to acquire money to use it. Upon my first reading of the documents from the archive in temporal sequence I was inclined to assume that the deposit of P.Yadin 17 had a direct link with the marriage document of P.Yadin 18. In P.Yadin 17 Judah receives three hundred denarii by way of deposit, in P.Yadin 18, where Judah's daughter Shelamzion is mar­ried off, there is mention of an extra dowry addendum of three hundred denarii. The correspondence in amount and the fact that P.Yadin 17 was written some six weeks before P.Yadin 18 suggested to me that the dowry addendum in P.Yadin 18 was made by the father, Judah, and consisted of the deposited money of P.Yadin 17. However, there is a problem with this interpretation. Although the relationship between the two acts sug­gests itself quite compellingly, the Greek of P.Yadin 18 provides a strong counterargument, as it does not lend itself for the interpretation that the father supplied the three hundred denarii.^[355] Obviously, if we assume that not the father but the groom provided the three hundred dena­rii mentioned in P.Yadin 18, no evident relationship of P.Yadin 18 with P.Yadin 17 needs to exist. Still it is possible to assume, as Satlow does, that Judah used some of the money he acquired by the deposit for the dowry of his daughter (which amounted to two hundred denarii).^[356]

The question of whether we can expect Judah to have used the money and the related question of what this says about ownership of the depos­ited sum, is extra interesting in the light of evidence from Egypt. As shown in several cases above, comparison with Egyptian practice can bring interesting parallels and divergences to light. In her comparison of Babatha's position as widow with that of widows in Egypt, Ann Ellis Hanson discusses P.Yadin 17 as ‘a deposit-loan,' briefly referring in a footnote to ‘a similar marriage practice in early Roman Egypt.'^[357] In the publication she refers to several documents are discussed that consti­tute what the authors describe as ‘marriage loans.'^[358] To summarize their findings in short, the marriage loans are loans between husband and wife, while no formal, written marriage contract exists. The loan has to be returned within a set period of time from the moment that the wife requests return. The loans seem to provide extra security for the wife: divorce was made more difficult because the husband would have to return the loan, which could be substantial. In fact, the authors show that a loan of a relatively low sum was sometimes followed by one of a substantially higher sum, relating this to an initial trial period and later the real marriage. At the end of their article the authors have added an addendum, mentioning P.Yadin 17 and 18, stating that ‘the partial simi­larities... seem to be obvious, but need further study.’^[359] In my assessment the main difficulty in linking this Egyptian practice with P.Yadin 17 (and 18) lies in the fact that the ‘loans’ of P.Yadin 17 (and 18) are related to marriages that are written, that is, entered into by written marriage con­tracts. In the case of P.Yadin 18 the addendum by the groom would have to constitute the marriage loan, which means that the marriage loan is part of the marriage contract. Consequently, I am reluctant to accept that P.Yadin 18 would contain a case of marriage loan, comparable to the Egyptian practice: the extra sum that is provided is provided within the context of a marriage contract. Where P.Yadin 17 is concerned, a marriage contract has been drawn up between the husband and wife concerned (P.Yadin 10). Therefore, the loan cannot provide that much as security as it will have done in the Egyptian context, where, as the authors emphasize, the loans were drawn up for marriages where no marriage contract existed:

The loans, consisting either of money or goods, were not accompanied by written marriage contracts.... In the absence of marriage contracts, the loan agreements became an indirect legal base for such marriages.^[360]

What is interesting, however, is the idea behind the Egyptian practice of the deposit-loan: the loan provided extra security for the wife, in case she is divorced or widowed. For the Egyptian cases the authors have determined explicitly that the husband could use the loans, but ‘the ultimate ownership rested with the woman.’^[361] This observation seems to me most relevant in the present discussion of the interpretation of the deposit, because it indicates that the fact that Judah would prob­ably have used the money does not go against assuming that ownership rested, ultimately, with Babatha. I will come back to this below.

Assuming that Judah could, and did, use the money he received on account of the deposit has immediate implications for understanding to what law of deposit our act refers. As mentioned above, it was the rule under Roman law that money received on deposit could not be used by the depositary. If he did use it, this was even considered as theft. The only exception to this rule was the so-called depositum irregulare, the special form of deposit especially for the deposit of money and consum­ables. One deposited the things with the depositary who used them and returned an equal amount of goods of the same kind or the equivalent amount of money on request. The important thing here is that owner­ship is supposed to pass to the depositary. Therefore, contrary to the real deposit, the depositary in a depositum irregulare becomes the owner of the money. When he uses the money, this is legitimate, as he uses his own property. Therefore, if we are to interpret the depositum of P.Yadin 17 as a depositum irregulare, Judah could use the money. However, this would also mean that Judah had become owner of the money, a fact that seems to be contradicted by other evidence from the archive. To explain this properly a short survey has to be made of the development of depos­itum irregulare in Roman law and its close relationship with mutuum.

A reference to the idea of depositum irregulare might be found in Dig. 16.3.24 (a quote from Papinians book nine of the Quaestiones),^[362] where a case is discussed of a person who deposits a hundred coins with another person. The text is mainly concerned with the question of whether payment of interest is supposed to be part of the deal, but information can also be found about the difference between real deposi­tum and depositum irregulare in the text. It is said that the actio depositi applies when the same coins are to be returned. If, however, the contract serves to denote that the same amount of money will be returned but not necessarily the same coins (i.e. the objects of the depositum) egredi­tur ea res depositi notissimos terminos, ‘the matter exceeds the very well- known limits of a deposit.' This means that in such a case the matter is not considered to be a real depositum.

The odd thing with this passage is that it seems that the author meant to say that interest could be expected in a normal case of depositum, but not with the depositum irregulare. This is peculiar because a real depositum does not offer the depositary the chance of using the object of the depositum. Therefore, it would be unjust to have him pay inter­est. This would make the depositum very unbeneficial for him: he has to take care of an object, keep it and accept liability for its loss while being unable to use it, but having to pay interest for it. In the case of the depositum irregulare on the other hand, where the depositary can use the object (i.e. the money), interest would be far more logical. After all the depositum irregulare is more like a loan (where the borrower also uses the bor­rowed goods). Because of this incongruity it is difficult to understand what Papinian meant to say here. ^[363]

Since Papinian stresses the difference between return of the same coins and return of the same amount of money, it could be inferred that he meant to say that the latter case is more like mutuum (loan for consump­tion).^[364] In this case, the object of the loan was not returned but the same amount of the same kind of goods.

Where mutuum is a loan where the object is not returned itself but the same amount of the same kind of goods, depositum irregulare is a depositum where not the same coins but different coins to the same value of money are returned. It is important to note that with mutuum and depositum irregulare, ownership is transferred to the borrower and the depositary respectively. This is logical since to be able to use the object they need the capacity to dispose. I refer here to Dig. 12.1.9.9, where it is concluded that when a person has deposited money and then gives permission to use it (turning a regular depositum into mutuum) the ownership of the money is transferred by his permission. This means of transferral of ownership rights is called brevi manu: the ownership is transferred to someone who already had the money in his keeping (for the depositum). This means that in the case of the real depositum, the depositary is only in possession of the money, while he does not own it. When the deal is transferred into mutuum, he becomes owner and can act with the money as he pleases.

In this passage, the transferral is thus from depositum to mutuum. While Papinian in Dig. 16.3.24, cited above, does not specifically men­tion the name of the contract in which not the same coins but the same amount of money is returned, Ulpian does so here: he categorizes it under mutuum. This is significant: in the time of Ulpian the deposit that concerned return of the same amount of something and not the exact thing was understood to be a case of mutuum. This makes it likely that Papinian did not know the depositum irregulare as such either. Conse­quently, we can assume that the Roman sources closest in time to our documents took the contract in which the same amount of money was returned to be a sort of mutuum. In that case, it is self-evident (as Ulpian explains in Dig. 12.1.9.9) that ownership passed to the depositary. This latter fact is important for our understanding of P.Yadin 17.

In the case found in P.Yadin 17 we are dealing with a deposit of money. Since it is likely that the depositum saw to the return of the same amount of money (thus resembling mutuum rather than a real depositum), it is comparable to the case mentioned by Papinian in Dig. 16.3.24, cited above.

The question has been raised for Dig. 16.3.24 whether part of it might be an interpolation, that is, a later addition to the original fragment by Papinian. This addition could have been by Ulpian or Paul (both pupils of Papinian) or by Tribonian (an advisor of Justinian, who played a major part in Justinian's codification projects). A later interpolation could mean that the depositum irregulare as referred to was not known to Papinian but was of later date. However, as noted above, the words depositum irregulare are not used in the fragment and one can indeed question whether Papinian (or one of his students) knew of such an insti­tute. Indeed, in Dig. 12.1.9.9, referred to above, Ulpian does not speak of depositum irregulare but rather of mutuum. This idea that the return of the same amount was mutuum (not depositum) could also be behind the phrase ‘egreditur ea res depositi notissimos terminos’, ‘the matter exceeds the very well-known limits of a deposit,' in Dig. 16.3.24. Regardless of the origin of the fragment it is clear that the idea of depositum irregulare as such was not known in the time of the lawyers of the second and even third century whose texts are incorporated in the Digest.

The classical Roman lawyers were content, at first, to make available the standard remedy of condictio and thus to accommodate the new practice within the framework of the established rules of mutuum.^[365]

Later there seems to have been a development towards granting the actio depositi for depositum irregulare as well, which indicates that the depositum irregulare was no longer seen as a form of mutuum, but rec­ognized as a form of depositum. There is controversy as to when this transition occurred: it is in any case clear that the term depositum irregu­lare to denote the special form of depositum where the depositary can use the goods deposited does not occur in the Corpus luris Civilis and was probably developed in later legal discourse.^[366] For the present texts we can assume that return of the same amount instead of the same thing occurred while the phrase egreditur ea res depositi notissimos terminos, ‘the matter exceeds the very well-known limits of a deposit' (Dig. 16.3.24) and the contents of the Ulpian passage cited above (Dig. 12.1.9.9) seem to suggest that it was treated as mutuum. In that case, the act found in P.Yadin 17 would not be a case of depositum but of mutuum. This makes it unlikely that ‘according to the law of deposit' would refer to Roman law.

Phang's study about the marriage of Roman soldiers, already quoted above in connec­tion with the deposit of P.Yadin 5, also touches upon the use of the depositum irregulare in second century Roman law: ‘It is obvious that the prefects denied the actio depositi in order to discourage the soldiers' unions outright, basing the denial on fraus legis. How­ever, it is possible that a conflict of laws and interests may have motivated them to deny the actio depositi itself. The Hellenistic παρακαταθήκη eventually became the Roman depositum irregulare. The use of loan contracts to constitute dowries was perhaps origi­nally an Egyptian custom; it was taken into Greco-Egyptian custom.... Nevertheless, depositum irregulare itself (for banking) was slow to be accepted by the Roman jurists, and the use of the depositum as dowry does not appear in the Roman jurists till around A.D. 200. In the early second century, the Roman prefects may have been unprepared to recognize either depositum irregulare or its use even by civilians to constitute dow- ries.'^[367] This suggestion can support my conclusion given above that it is unlikely that the depositum irregulare as such was known and recognized in Roman law in the time of the papyri under discussion. Therefore, P.Yadin 17 most probably does not refer to Roman law.^[368]

In Roman law the transfer of ownership seems to have been the con­sequence of a depositum irregulare. It is in any case the consequence of mutuum, as we have seen in Dig. 12.1.9.9, discussed above. Conse­quently, if we assume that the early lawyers treated a depositum with return of the same amount instead of the same object as mutuum, it is clear that ownership passed to the depositary. If this has to be assumed as the consequence of the deposit contracted in P.Yadin 17, Judah had indeed become owner of the three hundred denarii. In P.Yadin 21-22, however, Babatha is selling the date crop of orchards that belonged to her (then late) husband Judah. She claims a right to them by referring to her dowry and a debt. Although there is no absolute certainty to this point, I think it is likely this debt was the deposit found in the present papyrus. Upon his death, Judah was found to owe two things to Babatha: her dowry and the money she had put on deposit with him in P.Yadin 17.^[369] A dowry did not pass into the property of the husband; he did not become owner of it.^[370] This is clear as the heirs, who have to pay the dowry to the widow, cannot deduct her maintenance from it. The estate that has to provide the maintenance does not include the dowry. Babatha can sell the crop since it is hers considering her right to the dowry: she is owner of the dowry. Since the debt is mentioned alongside the dowry as a second similar ground for Babatha's right to sell, the debt also has to represent property of Babatha that was in her husband's keeping but that was not his. This is only possible if we assume that the deposit did not pass into Judah's ownership. Therefore, the Roman depositum irregu­lare (or indeed a mutuum construction) would not fit the present case. The arrangement seems to come closer to the Egyptian marriage loan, referred to above, where the husband could use the money but the own­ership of the money ultimately rested with the woman.

The assumption that the reference is not to Roman law is supported by several other elements in the text.

First, there is a retribution in duplum in case of default. Such a retri­bution in duplum could apply to a depositum in Roman law, when the depositum was originally treated according to the strict rules of the law of the Twelve Tables. According to these strict rules, the failure to return the depositum was treated as theft. This was changed later by the praetor, who instituted two kinds of depositum, depositum and depositum neces­sarium. In the latter there was a retribution in duplum in case of default. The praetorian edict is cited in Dig. 16.3.1, part of a longer treatment of depositum. It is decided there that in case of certain circumstances forcing a person to entrust another person with his property this person is liable for twice the value in case of default. This is logical since the depositary could be expected to take more care with objects entrusted to him by necessity on part of the depositor.^[371] Such a case does not seem to be at issue in the papyrus. On the contrary, it might well be that Judah had requested the depositum, to enable him to give money to his daughter on the occasion of her wedding.^[372]

I note that Phang states that ‘if the prefects followed Greco-Egyptian law, the suit for the return of παρακαταθήκη caused the sum to be doubled.'^[373] This means that deposi­tum irregulare could cause a retribution in duplum, if indeed Greco-Egyptian law was followed. In the cases Phang discusses we are of course in an Egyptian realm, therefore, there could very well be this influence of Greco-Egyptian law. In the case of P.Yadin 17 it is more likely to interpret the retribution in duplum in the light of (strict) Roman law. There the sum was only doubled in the case of necessarium, and therefore, I do not think it is likely that the reference in P.Yadin 17 to a retribution in duplum is a clear indication that Roman law is referred to. On the contrary, I think that the retribution in duplum points at an influence of Jewish, or if one prefers, oriental, law, which assumption is strengthened by other elements in the text as I will explain below. I also refer to Klami, who discussed the relationship between παρακαταθήκη and depositum (irreguläre) and concluded that the retribution in duplum is not a feature specific to Roman law but is indeed found in many ancient systems.^[374] He explains that the retribution in duplum in case of depositum necessarium developed from a change in function of the formula. Instead of denoting reasons for liberating the depositary from his liability (because the object could not be returned), the cases of emergency became reasons for the deposi­tor to entrust his property to others, which called for greater demands for care in the safekeeping and therefore more substantial liability.^[375] Consequently, two distinct insti­tutions developed: the real depositum with retribution in simplum and the depositum necessarium with retribution in duplum.

It is interesting that Klami relates the retribution in duplum to the formula κατά τον των παραθηκων νόμον found in papyri, wondering whether this reference to a law of deposit could be a reference to an old institution of retribution in duplum. The meaning of νόμος in this phrase, however, is heavily debated as he shows in quoting the opinions of a number of scholars on the subject.^[376] For the present discussion it is important to note that in one opinion, νόμος is taken to refer to a specific imperial constitution dated to 30-40 CE. This could mean that the reference to ‘law of deposit' in P.Yadin 17 could be a reference to a specific rule of Roman law. It seems doubtful, however, whether νόμος can refer to a specific imperial constitution, in any case at this time. I refer to Klami's discussion and references on page 95. The formula appears late, that is after 86 CE, and Klami concludes (in my opinion justly) that ‘es ist aber wenig glaubhaft dass es die Romer gewesen wären, die so spät eine duplum-Haftung eingeführt hätten.' He thinks it more likely that the retribution in duplum stems from old sources of Roman and Indoeuropean law (like the Codex Hammurabi) while it was later replaced by a gen­eral retribution in simplum. This means that the mention of a retribution in duplum here is not a clear-cut indication for the applicability of Roman law but rather points at an adherence to more general oriental law and perhaps specifically Jewish law, where retri­bution in duplum in the case of depositum is already mentioned in the Biblical sources.^[377] In the context of the whole of arrangements found in P.Yadin 17, it is unlikely that ‘law of deposit' refers to Roman law, see my discussion of ownership above and liability directly below.^[378]

Secondly, if we assume that Roman law was applicable, it is also not clear what ‘damages' refers to or the said claim of illegality. This latter remark could have to do with the idea that a depositary who used the deposit was guilty of furtum, but we have just seen that this was not the case with the depositum irregulare (or mutuum). The idea behind a deposit in money is that the depositary can use the money; indeed Roman law has him become owner of it. Therefore, it is hard to explain what ‘a claim for illegality in these matters' would encompass within a Roman legal context. Generally speaking, a depositary could only be liable for dolus (fraud).

This liability could never be excluded, as appears from Dig. 16.3.1.7: Illud non proba­bis, dolum non esse praestandum si convenerit: nam haec conventio contra bonam fidem contraque bonos mores est et ideo nec sequenda est. ‘If it is agreed that there is to be no liability for fraud, you will not approve it; for this agreement is contrary to good faith and good morals and therefore is not to be followed.'

See Dig. 16.3.1.6: Si convenit, ut in deposito et culpa praestetur, rata est conventio: con­tractus enim legem ex conventione accipiunt. ‘If it is agreed that there is also to be liability for fault with regard to the deposit, the agreement is valid; for contracts take their law (i.e. applicable rules) from the agreement.'^[379] Because the extension to culpa has to be agreed upon, it is obvious that normally a depositum only involved liability for dolus.

See also the latter (and previously omitted) part of Dig. 16.3.1.8: Si vestimenta ser­vanda balneatori data perierunt, si quidem nullam mercedem servandorum vestimento­rum accepit, depositi eum teneri et dolum dumtaxat praestare debere puto; quod si accepit, ex conducto. ‘If clothes given to the keeper of a bath for safekeeping are lost and if the keeper has received no fee for the safekeeping, I think that he is liable in an action on deposit and that he ought to be responsible only for his fraud; but where he has received a fee, he is liable to an action on hire.' 'This latter instance, liability based on the actio locati et conducti, extended liability beyond the mere case of dolus.^[380]

See also the sequel of Inst. 3.14.3 cited above:^[381] Praeterea et is, apud quem res aliqua deponitur, re obligatur et actione depositi, qui et ipse de ea re quam accepit restituenda tenetur. sed is ex eo solo tenetur, si quid dolo commiserit, culpae autem nomine, id est desidiae atque neglegentiae, non tenetur: itaque securus est qui parum diligenter cus­toditam rem furto amisit, quia, qui neglegenti amico rem custodiendam tradit, suae facilitati id imputare debet. ‘Furthermore, a person with whom a thing is deposited is under a real obligation and liable to the deposit action, being liable for the restoration of that which he receives. He is liable, however, only for his fraud; not for non-intentional fault, i e inertia or negligence. Hence a man is safe who loses through theft a thing of which he takes little care, for a person who entrusts his property for safekeeping to a negligent friend must regard the fault as his own.’

There were different opinions as to the question of whether culpa lata (gross fault) was to be equated with dolus and consequently whether liability in depositum extended to culpa lata. In Dig. 16.3.3.32, Nerva is said to have argued thus and Proculus to have gone against it. Celsus, to whom the fragment is ascribed, chose the side of Nerva saying: nam et si quis non ad eum modum quem hominem natura desiderat diligens est, nisi tamen ad suum modum curam in deposito praestat, fraude non caret: nec enim salua fide minorem is quam suis rebus diligentiam praestabit. ‘For even if a person is not careful in the degree required by the nature of man, still, unless he shows in the deposit the care customary with him, he is not free from fraud; for good faith is not maintained if he shows less care than in relation with his own affairs.’^[382]

Liability was limited to dolus, mainly because the depositary kept the deposit with­out receiving any remuneration. Since the act was not profitable for him, liability was limited. In the case of the depositum irregulare, the depositary became owner of the money. In that case he could act with it as if it were his own property. In the end he did have to return the money, but that could not pose a problem: since money is, unlike things, always replaceable, the depositary could not claim that he was unable to return the deposit. Therefore, one can even wonder whether a plea of vis major or casus fortui­tus (force majeure) would have been acceptable: even if the money had been lost due to some cause, the depositary could be expected to return some money (he could not claim that the object was no longer there to be returned). ^[383]

The word παρανομία used in the papyrus text does not express the con­cept of dolus, as it designates a transgression of law, decency or order, thus a violation of current law.^[384] Thus an act can be qualified as an act of παρανομία or a person can be liable concerning a charge of παρανομία (like it is said in P.Yadin 17). This is not the same idea as with dolus or culpa, which are expressions to denote the failure of a person to meet a certain obligation, attributing this failure to a certain cause (the person's intent to go against the contract or his fault/guilt concerning the wrong outcome).

It is interesting to note that παρανομία is not used in Greek poetry but it is in prose, mainly in rhetoric. It is used once in the New Testament, where it denotes a transgres­sion of divine law: 2 Pet 2:16. The word is used to refer to Balaam, a magician referred to in the Hebrew Bible, who was hired to curse the people of Israel but could not do so in the end, see Num 22-24.^[385] For transgression of the law the word ανομία is used more often, which literally means ‘being without the law' thus acting as if no law existed. παρανομία on the other hand expresses more of an explicit will (decision) to go against the law. This applies in particular to Balaam, who set off to curse the people of Israel even though he knew of the God who protected them. Thus his sin is qualified differ­ently, by using another word than is used in the rest of the chapter to denote wicked­ness (for example αδικία, injustice, or άμαρτία, sin). The verb παρανομεΐν is used once in the New Testament as well, in Acts 23:3, where Paul addresses the High Priest who is said to sit ‘according to the law' but to judge ‘contrary to the law.' It is obvious that here divine, Jewish, law is meant. The same use of the verb παρανομεΐν can be found with Flavius Josephus where it is used to denote the transgression of divine law, as in Ant. 11.149, where Ezra condemns the mixed marriages: ‘... Ezra arose and accused them of having broken the law by marrying outside their own nation...'^[386] For transgression of human commandments other words are used as can be seen in Ant. 10.254-256, where people take care not to transgress specific orders of the Persian king.^[387] Thus παρανομία is closely linked with (transgression of) divine law. This could explain the use of the term here: the withholding of the depositum would be a transgression of divine law (as it is given in Exod 22).

It seems that the idea is that the depositary will be liable in person (‘answerable’) to a charge of having acted against the law, that is the basic principles of the depositum. This is logical since the prompt return on request is the heart of the depositum arrangement. Consequently, the charge of illegality has to be seen as a personal charge of going against the law rather than a reference to dolus or the like. From the above it thus appears that the law referred to is not Roman law.

Although it is clear that the reference to the law of deposit is not to Roman law, it remains to be seen whether the described arrangements can be connected with Jewish law. In Jewish law there are several types of deposit. Since in the present case the deposit concerns money and is without remuneration, it seems to come closest to the case of shomer chinnam: a person who accepts money or goods for safekeeping.^[388] In case Judah should use the money—a likely situation and a possibility that is not explicitly excluded in the deed’s text—Judah would be seen as a sho’el, a borrower. The liability for a borrower is much more extensive than for a shomer chinnam, in fact the liability of the sho’el encompasses even inevitable accident, theft or loss.^[389] This means that the money has to be returned under any circumstances. If the sho’el does not return the money he can be considered to have ‘put forth his hand,’ that is embez­zled the property. This means that under Jewish law a depositary of money, like Judah here, is treated as a borrower. The ownership does not pass and the depositary-borrower is in all cases liable for loss or perish­ing of the property concerned. If he does not repay on request, there is a suspicion that he has put forth his hand, that is, has used the money for his own expenses. In such cases, the depositary has to take an oath that he did not put forth his hands. I suggest that this is what is meant by ‘answerable to a charge of illegality,’ of having acted against the law by appropriating the property that was entrusted to him. Since in Roman law ownership passed to the depositary, we can hardly be dealing with a charge of illegality there: furtum (theft) is not possible of something one owns.

In a Roman context the charge of illegality could then only be understood regarding a false plea of vis major, casus fortuitus etc. However, in Roman law the plea of vis major etc. had to do with liability. In case of a successful plea there would be a limited liability or no liability at all. Here it is clear that the depositary is in all cases liable to pay the double value of the deposit plus additional damages. There are no circumstances men­tioned or a possible investigation into his liability. The charge of illegality seems to have been a different matter, apparently related to the depositary’s acts during his charge.

We have two elements here, double liability (retribution in duplum) and a charge of illegality, which better fit the Jewish law background: the depositary is in all cases liable for double payment plus damages while he is also answerable to take the oath on not having put forth his hand. The retribution in duplum is logical since this was required in Jewish law, see Exod 22:2, which specifically treats the matter of deposit. In Roman law, as explained above, retribution in duplum in case of deposi­tum did occur, but not for the depositum irregulare.^[390]

It is then likely that ‘deposit’ here refers to a Jewish institution, with typically Jewish rules. Consequently, the phrase ‘according to the law of deposit’ refers to Jewish law. Yet the Jewish parties in their contracts refer to their own law while leaving out the adjective (they do not say Jewish law).^[391] This implies that they considered their own law to be not just their law, but the law. In such a case, divergences from that law have to be marked, as is the case in P.Yadin 18.^[392]

P.Yadin 17 deviates in this respect from what we have found in P.Yadin 2-3, 6 and 8-9. There reference is made to an unspecified legal back­ground, accepted by all parties, while deviations have to be marked, as in the case of the water rights in P.Yadin 3 and the specific Jewish rules for tending to land in P.Yadin 6 (‘you shall till’). Where there is no speci­fication but a mere np’bro, this seems to refer to the system the parties accept as applicable. This can be Nabataean law as in P.Yadin 2-3, but also Jewish law as in P.Yadin 6. This depends upon context and upon the arrangements made in the text. When two different laws apply to one document (like in the case of P.Yadin 3, Nabataean law and a specific rule of Jewish law or custom) the relationship between the two can be characterized by general-specific: both type of references refer to con­tents and differ only in scope.^[393]

In the case of P.Yadin 17, we can assume that the reference to ‘the law of deposit' serves to denote the law deemed applicable by both parties, which was in the context most likely Jewish law. This latter assumption is supported by the Jewish background of other papyri in the archive, like P.Yadin 23-24, where the order of succession is clearly determined by Jewish law.^[394] This makes it clear that the references to ‘law' in docu­ments from after the conquest were not necessarily to Roman law. On the contrary, the parties can refer to ‘the law' without specifying what law they mean, while it is clear from the contents of the arrangements that they meant Jewish law. However, while the documents show an adher­ence to Jewish law when it comes to the contents of the arrangements, there is also an (albeit marginal) role for Roman law. For we see that even though the document adheres to Jewish law internally, Babatha does act with a guardian.^[395] This appearance of a guardian is an indication that Roman law played a part here, but it cannot be called a reference to law in a strict sense: the presence of the guardian does not indicate the appli­cable law like a phrase ‘as is proper' or ‘according to the law of deposit.'^[396] Therefore, a document like P.Yadin 17 presents us with references to law and indications of the applicable law that are not references to law in the strict sense. This combination of aspects of several legal systems in one and the same document can be found in other documents as well, for instance P.Yadin 21-22 and 23-24 to be discussed below. The relation-

ship between the several laws here cannot be described with general­specific as the appearance of a guardian does not see to contents of the legal act. This means that P.Yadin 17 presents us with a different relation between legal systems within a legal act than the previous acts did. I will come back to this in detail in Chapter 3 below.

The idea that Jewish law is referred to is strengthened by the repeti­tion of the phrase ‘according to the law of deposit' in the Aramaic sub­scription by Judah. Judah at first states that he received the denarii ‘on account of deposit' (rendering Greek ev napa0f|Kq) and then concludes his statement by referring to ‘according to the law of deposit' (render­ing the similar Greek expression in lines 30-31). The word used there for deposit is jnph. This word is also found in P.Yadin 1, a Nabataean Aramaic deed, in an enumeration of items included in a debenture. There are factual items, like land parcels, houses, garden, wool, items of silver and gold, but also rights to things and their proof, like pay­ment, purchase, record, valid document. In this enumeration there is mention of ‘proclamation pertaining to it, and deposits, and penalties.'^[397] The editors assume that the intention is that the property is free of these things, since both proclamation and penalty carry the negative meaning of encumbrance on value.^[398] A proclamation refers to a document used to seize another person's property (comparable to a writ of execution). In this sequence JHpS has to carry the meaning of possibly diminishing the value of the property concerned. The editors explain that no part of the property is deposited with others, that it is under the control of the owner.^[399] It is, however, more logical to argue the other way around: that there are no deposits in the property. The meaning of the enumeration is evidently to express that the property does not look more substantial than it is. If there are writs of execution pertaining to it or penalties out­standing, this could mean that the property turns out to be less valuable than has been assumed. If there are deposits outstanding with other per­sons, like the editors assume, this means that there is money somewhere out there that does belong to the property but is currently not part of it. This would actually denote that the property is more substantial than it appears to be, instead of less. Since the person who deposited retained ownership and could request the property to be returned at any time, outstanding deposits cannot pose a problem. I therefore think what was meant is that there are no deposits in the property, that is, no part of it is a deposit that had to be returned some day.

The use of the word jnph in P.Yadin 1 shows that it was used as a legal term, which did not need clarification. Consequently, it has to refer to a clear institution and, I note, an institution that pre-existed the Roman conquest since P.Yadin 1 is dated to 92-93 CE. Furthermore, if my interpretation given above is correct (jnpS referring to deposits in the property diminishing its value), this proves that in a jnpS construction, ownership did not pass to the depositary. Since this is the situation we find in P.Yadin 17, this strengthens the assumption that ‘law of deposit' refers to indigenous law rather than to Roman law.^[400]

In his Aramaic subscription Judah mentions the deposit twice, once to refer to the receipt of the money and once in the end of his statement, mentioning the above discussed ‘law of deposit.'^[401] The question is to what exactly Judah refers when he mentions this law, for he first states that he will act ‘according to what is written above.' This is usually the way to state that one will stick to the arrangements made in the papy­rus. What then does the addition ‘according to the law of deposit' add? The explanation is most likely to be found in the few words in between Judah's reference to ‘what is written above' and ‘the law of deposit.'^[402] The first two words are usually followed by a noun and then denote exclu­sion. Consequently, we have ‘excluding...' The next word is a verb fol­lowed by the object ‘something.' The editors emend the verb, rendering a meaning of withholding: ‘excluding that I withhold anything.' The phrase then denotes: ‘provided that I do not withhold anything according to the law of deposit.' I think this refers back to the charge of illegality men­tioned explicitly above. As I have explained, there could be a demand for a judiciary oath to have the depositary declare he had not embezzled anything (‘put forth his hand'). Judah declares here that he will stick to the arrangements of the papyrus emphasizing that he will not withhold anything, as the Jewish law of deposit so explicitly requires. The repeti­tion of the phrase here in connection with the specific act of withhold­ing (the charge of illegality) could indicate the legal system referred to is indeed Jewish law.

That there is such a strong emphasis on the legal act concerned and the applicability of a set of fixed rules unto it could in itself denote that we are dealing with Jewish law. As we have seen in the other papyri, the act is not always labeled in the document and in no other case there is a repetition of the rules applicable as we find it here (the repeated refer­ence to the ‘law of deposit'). In Jewish law it was determined regarding deposit/bailment that the parties could deviate from the rules by mutual agreement. I refer to m. B. Mesia 7:10, where it is said: ‘An unpaid bailee may stipulate that he is exempt from [having to take] an oath; and a bor­rower that he is exempt from having to pay compensation, and a paid bailee and a hirer, that they are exempt from [having to take] an oath or from having to pay compensation.' Since it is stated here that they can exempt themselves, it is clear that normally they are liable. But such an opportunity for exemption may have prompted people to exempt themselves frequently, thereby turning normal practice more to accept­ing exemption than liability. In our case, where a substantial amount of money is concerned, the parties might have wanted to emphasize that they did not mean to exempt the depositary, but on the contrary, have him accept liability for both the compensation and the taking of the oath (‘the charge of illegality'). By stressing that they would follow the law of deposit it was made clear that this law indeed governed the parties' relationship and not the arrangements in the document. There­fore, after having said that he will conform to all that is written above, Judah emphasizes that he will withhold or exclude nothing, according to the law of deposit. This may then refer to the actual property (he will not withhold any money) but also to the exemption: he will not exclude anything (compensation and oath) for which he is liable/answerable according to the Jewish law of deposit.

It is interesting to note that in the Babylonian Talmud, b. B. Qam. 107a-b, the four per­sons mentioned above are discussed: the unpaid bailee, the borrower, the paid bailee and the hirer. With respect to the oath that a bailee may have to take it is discussed whether this oath is connected with partial admission. Without going into all the details here it serves to note that there was apparently a controversy regarding the requirement of the oath, in several cases of bailment. In the case of deposit as mentioned in Exod 22:6, ‘money or goods,' it is remarked that ‘a deposit of money might in accordance with B.M. III, 11 amount to an implied mutuum involving all the liabilities of a loan. In other systems of law it is indeed called depositum irregulare for which see Dig. 19,2,31... The phrase in Ex. 22:8 confining the oath to part admission is thus said to be ascribed to dealing exclusively with this depositum irregulare, i.e. with the bailment of money when it became a loan to all intents and purposes...' This quotation supports my reasoning above that the reference to ‘law of deposit' is not to Roman, but to Jewish law. For if it were a reference to Roman law, it would be a case of mutuum in which ownership had passed to the depositary. I have explained above that such a case is unlikely here (regarding Babatha's behaviour in P.Yadin 21-22 and the claims of illegality). On the other hand, the explanation given here in the notes on b. B. Qam. 107a-b makes good sense: the deposit at hand is really a sort of loan, thus with the liability attached to a loan, which in Jewish law included the oath (connected with the charge of illegality: the charge of having put forth the hand, that is, embezzled the property). The reference to Exod 22: 6,8 respectively could denote that these passages were regarded to be conclu­sive when it came to deposits and loans, thus the reference to the ‘law of deposit' may indeed be to these rules, thus to Jewish law.

In lines 16/38-39 we find the phrase ‘in good faith the formal question was asked and it was agreed in reply that this is thus rightly done.' This is a reference to the stipulatio. This phrase clearly refers to the stipulatio as we know it from Roman law, where one of the parties asks the other if he will do what he has obliged himself to and he answers that he does.^[403]

‘In good faith' is an unfortunate translation here: ‘niurei entspricht wiederum dem latein. fide (und nicht bona fide, wie Lewis S. 18 annimmt).'^[404] As niurei in the context of a stipulatio does not refer to good faith (bona fides), but to the element of promising in the stipula­tio itself (fidepromittere), it is logical that in the stipulatio clause niurei is used without an adjective, while we find it with adjective in other contexts as, for instance, in P.Yadin 16 and P.Yadin 28-30. Obviously the reference there is to ‘good faith,' in the sense of bona fides.^[405] The reference to the stipulatio can be found in P.Yadin 17, 18, 20-22 and 37 (= P.Hever 65).

The stipulatio could be used to undertake any obligation. The stipula­tio itself then bound the parties.^[406] In such cases it was deemed sensible to write the act of taking the stipulatio down, to make sure that there was proof of the obligation. The s tipulatio was often also used in combination with codified legal acts, to stress the willingness of the parties to oblige. As we find it here, it denotes that the question belonging to the stipulatio had been made and the answer given.^[407] This explicit notification of the stipulatio is probably a consequence of the role it played in Roman law, where proof of the stipulatio was important in proving that indeed an obligation had been undertaken.

In Roman law one of the parties made the question and the other answered. The verb stipulari was taken to denote only the act of ask­ing the question. The person who did so was called the stipulator. The person answering was the promissor. He was bound by the obligation. Consequently, stipulatio could be understood to be a unilateral contract: only one obligation was created. In a contract like P.Yadin 21-22 where there are mutual obligations undertaken, one could expect both par­ties to make a stipulatio. Indeed this is what we see: there are two sepa­rate deeds in which the party who is obliging himself probably took the stipulatio.

It was determined explicitly that the stipulatio could be used in a language other than Latin, consequently we need not envisage the par­ties here saying the traditional spondesne? spondeo (do you promise? I promise) to one another. Indeed it was determined by Gaius for just these words that they were so particularly Roman that they could only be used by Roman citizens.^[408] Other verbs, like dabis? dabo, promittis? promitto, fidepromittis? fidepromitto, fideiubes? fideiubeo, facies? faciam could be used by all people, but spondesne? spondeo only by Roman citi­zens. In the same passage it is determined that the stipulatio was also valid when made in Greek, if both parties understood Greek.^[409] It is added with some emphasis that this even goes for Roman citizens. This denotes that the language of the stipulatio did not necessarily have to be Latin, but had to be a language that both parties could understand. Non Romans could use the Latin formulae, but not spondesne? spondeo. For the present context we can assume that the stipulatio could be made in Aramaic, since both parties understood that language. In this context see Dig. 45.1.1.6 (Ulp. 48 ad Sab.):

Eadem an alia lingua respondeatur, nihil interest, proinde si quis Latine interrogaverit, respondeatur ei Graece, dummodo congruenter respondea­tur, obligatio constituta est: idem per contrarium. Sed utrum hoc usque ad graecum sermonem tantum protrahimus an vero et ad alium, Poenum forte vel Assyriumvel cuius alterius linguae, dubitari potest. Et scriptura Sabini, sed et verum patitur, ut omnis sermo contineat verborum obligationem, ita tamen, ut uterque alterius linguam intellegat sive per se sive per verum inter­pretem.

Here the obligation is considered to be contracted even when the lan­guage of the question and of the answer are not the same: someone can put the question in Latin and the other can answer in Greek. Whether this is also allowed in other languages can be doubted, but Sabinus accepted that it was possible: for him the rule should be that parties can contract an obligation if they can understand what the other one is asking c.q. answering, whether they can understand the other one's language themselves or use an interpretor. Since the emphasis is clearly on the understandability of question and answer to both parties this passage seems to support my assumption that the stipulatio could be contracted in Aramaic if that was the language both parties understood. Wacke, who discusses this passage in his article about the position of local languages in a Roman legal context, remarks in passing that Assyr­ium could be understood to mean Aramaic.^[410] This remark is especially relevant for our archives, because this interpretation of the passage sup­ports the idea that Aramaic could (and was) accepted in a Roman legal context.^[411]

The occurrence of the stipulatio here is remarkable because the instances in the Babatha archive are actually the earliest appearances of a stipulatio in Greek documents.^[412] This shows there is not an exclusive link between language and law: the use of Greek in other documents did not automatically prompt the reference to the stipulatio there. Even within the Babatha archive we can see that the use of Greek did not immediately bring the reference to the stipulatio in tow: we have seen a deposit in P.Yadin 5 and there are no traces of reference to the stipulatio in the extant text there.^[413] Below it will also be found lacking in P.Yadin 11, a document that records a deal between a Jew and a Roman centu­rion. If reference to a stipulatio could ever be expected to be present, it would be there. However, there is no sign of it, despite the Roman influ­ence found otherwise in this papyrus.^[414]

The phrase here in P.Yadin 17 is more extensive than in the stipulatio clause in, for example, P.Yadin 21-22. It has been noted in an article on P.Yadin 18, which presents the same stipulatio clause as we find here, that the wording resembles the Latin more closely than the wording usually found in later Greek papyri which contain the clause. This could mean, if I understand it correctly, that the later shorter clause was an abbreviated version of a previously used Greek phrase.^[415]

Lewis referred to the situation in Egypt, remarking that ‘the estab­lished view' for Egypt is that ‘an imperial (or more likely) prefectural order introduced the stipulatio into the notarial practice of that prov­ince in A.D. 220.'^[416] This raises the interesting question of whether there was a requirement to include the stipulatio in the province of Arabia as well. All of the papyri that include the stipulatio are relatively late for the archives: P.Yadin 17 and 18 128 CE, P.Yadin 20-22 130, P.Yadin 37 (= P.Hever 65) 131. This could mean that the introduction of the stipula­tio was relatively late.^[417] As to a possible requirement to include a stipu­latio the evidence could be read to imply that an obligation to use the stipulatio clause in contracts was imposed at some time, but we cannot precisely define this moment, since the majority of Greek documents prior to P.Yadin 17 may not have contained a reference to the stipulatio anyway, because of their nature. P.Yadin 23-27 do not contain a refer­ence to the stipulatio either, even though they are later than the ones that do. These documents, P.Yadin 23-27, contain summonses to suits, comparable to what we find in P.Yadin 14 and related 15. P.Yadin 12 and 13 furthermore, cannot be expected to have contained a stipulatio, since they present a copy of an official record and a petition to the governor. Such documents would not need a reference to a stipulatio. This means that the evidence of the Babatha archive is not sufficient to determine a moment in time when a formal obligation to use reference to the stipu­latio may have been introduced in Arabia.

Whether we take the reference to the stipulatio to follow a demand to include it or not, it is in any case clear that the phrase refers to a feature of formal law: it has nothing to do with the contents of the legal act. The clause merely serves to denote that the parties have agreed to the arrangements outlined in the contract. Therefore, the reference to the stipulatio is a reference to a feature of formal Roman law.^[418] Conse­quently, P.Yadin 17 presents us with a clear case of substantive adher­ence to Jewish law and (features of) formal adherence to Roman law.

P.Yadin 11: loan from a Roman centurion⁷

P.Yadin 11 is one of the few documents from the Judaean Desert that are completely in Greek. A comparison with P.Yadin 16 would suggest that P.Yadin 11 is also a copy of a document that did contain an Aramaic subscription. Indeed the lower version has a translation (described as such!) of the declaration by Judah.^{[419] [420] We have already seen in P.Yadin 5 that there the word spppveia ‘translation' might have preceded the entire text, making it into a Greek document by way of translation from an (Aramaic) original. Lewis thinks that there have been two versions of the present papyrus, the recovered one and another ‘with Judah's sig­nature in Aramaic.'[421] This would explain the fact that the document is found among the documents of the debtor, while one would expect it to have remained with the creditor as long as the debt was not repaid. That it was repaid and the document returned seems unlikely as the docu­ment shows no signs of cancellation. In an article about Mur 114, a text that greatly resembles P.Yadin 11, Cotton and Eck remarked on this:}

Warum der Kreditnehmer den Vertrag [Mur 114, JGO] bei sich trug, obwohl er sich beim Kreditgeber befunden haben sollte, solange die Schuld nicht bezahlt war, lässt sich nicht schlüssig beantworten. Veilleicht war dieser Papyrus eine Kopie, obwohl er nicht so aussieht. Die gleiche Frage stellt sich für P.Yadin 11, bei dem es sich gewiss nicht um eine Kopie handelt, da auch die Unterschriften der sieben Zeugen vorhanden sind. Auch ist keines der beiden Dokumente ungültig gemacht.^[422]

Hannah Cotton informed me that she now believes that P.Yadin 11 was a copy anyway, the signatures of the witnesses serving to make the copy authentic. If we assume that indeed a version existed that was in both Aramaic and Greek, we see that none of the documents in the archive were originally drawn up completely in Greek. All original documents apparently contained Aramaic subscriptions and signatures, while cop­ies of documents, like P.Yadin 11 and 16, were completely drawn up in Greek. This had the slightly peculiar consequence, already referred to above, that the documents with the indigenous language in it ended up with the government, or here a Roman centurion, while the copy in Greek ended up with the indigenous party involved, who did not know Greek.^[423]

P.Yadin 11 concerns a loan and in general one can say that a loan and a deposit look alike, since they both encompass entrusting money to another person for a period of time. In the case of a deposit where the depositary can use the money the deposit can even be equated with a loan. Lewis explicitly points at the parallel between P.Yadin 17:7/26-27 ‘to hold and owe to you as deposit' and P.Yadin 11:2-3/14 ‘to hold and owe to you in loan.'^[424] However, with a loan there is usually a fixed date for return of the money, which is not the case with deposit. A loan also encompasses interest as the case of P.Yadin 11 shows.^[425]

The dating does not refer to the establishment of the province,^[426] since the document was written in En-gedi, which was in Judea and not in Arabia.^[427] There seem to have been strong ties between En-gedi and Maoza, even though the villages were situated on different sides of the provincial borders. In the documents we see, for example, that Judah, who is acting here, is described as ‘an En-gedian,' or as being ‘of the village of En-gedi,' while he is also said to be ‘domiciled in Maoza.'^[428] Cotton has concluded that the Jews living in En-gedi and Maoza were part of one Jewish community.^[429] One of the parties is a man named Magonius Valens, a clearly Roman name, and he is designated ‘a centu­rion.' The first person named in the enumeration of witnesses is a Gaius Julius Procles, obviously a Roman and possibly also a soldier. Evidence of a military presence in En-gedi is adduced by the papyrus text itself, since the courtyard (which is described in the papyrus as the object of security connected with the loan) is said to be bordered by tents and a praesidium, a military post.^[430] The presence of the military force has been related with the production of balsam in the area and the attempt by the Jewish community to destroy the balsam during the first revolt in 70 CE.^[431] Lewis already noted that the military presence disappeared between the drawing up of P.Yadin 11 in 124 and the drawing up of P.Yadin 19 in 128.^[432] In this latter papyrus, the same courtyard is men­tioned as in P.Yadin 11 but in the designation of borders, the tents and praesidium are no longer mentioned. Instead of the tents there is said to be an empty space of land. This suggests that the military moved and Cotton noted that the cohors mentioned in P.Yadin 11 was in fact later stationed in Hebron.^[433]

While one of the parties is a Roman centurion, the other one is a Jew: Judah son of Eleazar Khthousion, Babatha's second husband, whom we have encountered in P.Yadin 6 and 17 as well. He declares that he has borrowed an amount of money from the centurion. Considering that Valens held a military position, it is to be expected that he had cash money to his disposal.^[434] It seems logical to me that he had one of his men draw up the document. The line which could have mentioned the scribe is severely damaged; Lewis reads έγράφη δια (‘was written by') in the lacuna and restores the scanty letters that are still legible into the name Justinus. If this reading is correct, Justinus could well have been a Roman soldier.^[435]

The reference to En-gedi as ‘village of Lord Caesar' can be considered part of a Roman influence. En-gedi is mentioned in several other papyri in the archive, but not with this epitheton.^[436] Lewis takes the epitheton to affirm his suggestion that En-gedi and its surroundings had become part of the Roman Emperor's estates after the suppression of the Jew­ish revolt of 70 CE.^[437] Lewis also refers to ‘Hadrianic Petra' in P.Yadin 25. Cotton has discussed the epitheton and its implications, contrasting a merely honourific epitheton (as in ‘Hadrianic Petra') with an epith­eton with substantial implications (as with ‘village of Lord Caesar').^[438] Like Lewis she relates the epitheton to the incorporation of the area into the Emperor's estate, but she does not think that this meant that all the property within the area belonged to the Emperor (was part of his pat­rimonium). She explains that exactly the papyri found in the Babatha archive show that persons did own private property in En-gedi, as can be seen in, for example, P.Yadin 11 and 19. This means that the fact that an area was part of the Emperor's property did not denote that no one could own private property there.^[439]

The amount of money borrowed presents us with an obscurity. In the inner text it is first written as forty denarii, then forty is changed to sixty. In the outer text sixty is written right away. At first sight it would appear that Judah changed his mind and demanded a more substan­tial loan (having forty changed to sixty and having sixty written directly in the lower version). However, it is important to keep in mind that there is evidence that the upper version was written last.^[440] If we read the lower version first and explain the difference with the later upper ver­sion, Lewis' suggestion that ‘there is concealed here a usurious squeeze exerted upon the borrower: he was compelled to sign the note for sixty denarii, but actually received only forty denarii in hand' makes sense. We then have to assume that the scribe had forgotten this in writing the upper version and coincidentally first wrote the true amount of the loan, hastily correcting his mistake. The presence of the correct text immedi­ately beneath should have prevented the scribe from having made such mistakes, yet we shall see that there are differences between the upper and lower versions of the texts again. This could be due to the fact that the upper text was written more hastily and thus less accurately.^[441]

Yet there is another change made in the upper version: the property of Judah and his father is not pledged but only that of Judah.^[442] This is a considerable change as it makes a difference whether the centurion can merely sell off the property of the son or also that of the father as well. Since it is the father's courtyard that is explicitly mentioned as the object of the security arrangement it would be more logical to mention the father's property than that of Judah solely. In my opinion, the combina­tion of a lower amount of money and Judah's property versus a higher amount and the property of both Judah and his father could mean that there was first the intention to borrow just forty denarii, pledging Judah's property for security, while Judah changed his mind and asked for sixty, extending the security arrangement to his father's property as well, eventually having the scribe change the amount in the upper ver­sion. It is of course clear that for this assumption to make any sense one has to assume that the upper version was written first.^[443]

In the lower text the security arrangements entail Judah's property and that of his father. That the latter is included should probably be related to an explicit mention of the object of security (hypothec) in the previ­ous lines. Judah says that he borrows the money under a hypothec of a courtyard he manages for his father. It is explicitly stated that this man­agement encompassed the competence to mortgage and to lease out.^[444] Thus Judah can make arrangements with the property as object, while he is not the owner of the object. The extension in the security clause to his father's property in general suggests, as Lewis already noted, that he was in charge of more of his father's property than just the mentioned court­yard.^[445] The courtyard's abutters are given and the fact that these abutters served to identify the object is beautifully illustrated by the recurrence of the same courtyard in another papyrus to be discussed below.^[446]

It is said in the security arrangement that if Judah fails to repay the loan in due time the other party will have the right to ‘acquire, use, sell and administer the said hypothec.' Lewis relates this enumeration to Aramaic niatbl... Nlpob ‘to buy and to sell.' I note, however, that the Aramaic enumeration continues with ‘to pledge, to bequeath, and to grant as gift, and to do with these purchases all that he wishes.'^[447] This means there is no real equivalent of ‘to use' or ‘to administer,' since there is no mention of use for the good of the party himself. In Aramaic the emphasis is clearly on the power to dispose, declaring that this power is not in any way limited. I note that in P.Yadin 7 the phrase is extended: ‘to buy and to sell and to inherit and to bequeath, and to pledge as security and to grant as gift and to sow and to plant and to build and to remit their payments and to do with them anything that you wish.'^[448] Here one could say that ‘to use' and ‘to administer' are expressed by way of the clause ‘to sow and to plant and to build and to remit their payments.' I agree that here the stress is not solely on the power to dispose, but on the powers of the new owner to use the property for herself as well. Yet the picture painted by the Aramaic and the Greek phrase seems to be different. When one reads the Aramaic, it is clear what is meant: the new owner will have a complete and unlimited power to dispose of the prop­erty or use it himself, to do, as it is summatingly stated at the end of the line, ‘all that he wishes.' In the Greek statement, however, there seems to be more of a development, a phase-like description of what will happen: in case of default the other party can acquire the property, use it, sell it and administer it. Using is the same as administering, expressing that the party can keep the property to himself, while both are the counter­part of selling which denotes that the party can dispose of the property. Selling is of course in itself again the counterpart of acquiring. We see the property transferring into the power of the other party (to acquire) after which it can either stay there or be transferred again. The idea in both the Aramaic and Greek expression may be the same: a complete power for the new owner to either keep the property or dispose of it, but the way in which it is expressed is different. I therefore assume that the expression here can sooner be expected to have a Roman source than be the result of Semitic influence. This is supported by the Roman charac­ter of the document in general and the aforementioned possibility that it was drawn up by a Roman.

Lewis seems to argue the other way around. He does acknowledge that the expression seems to have originated in Latin, but in discussing sources that could provide evidence for this he seems to argue that those sources draw on a Semitic background, thus that the expression came into Latin by way of a Semitic influence.^[449] I do not think this is true. The expressions he mentions (from much later Latin sources) strongly stress the use the new owner can make of the property and thus not the power to dispose of it. In expressions like habere possidere uti frui recte liceat and ut rem habeat teneat possideat utatur fruatur ipse heredesve eius in perpetuum the idea of disposal is absent and consequently, the Latin phrases come closer to the Greek phrase found here than to the cited Aramaic expression. The emphasis is clearly on the ownership of the new owner, on his capacity to have the object, hold it, possess it, use it, enjoy it etc. Even the mention of his heir does not denote disposal but possession that will extend beyond the life of the new owner: it is emphasized that the object will become part of the property (estate) of the new owner and will stay there (by way of his heir even ‘into eternity'). This completely different approach to what was probably considered to be most important when ownership passed on, shows, in my opinion, that the expressions found in the later Latin sources have a clearly Latin and at least an unsemitic origin. The emphasis in the Aramaic expres­sion (and acts) is on the power to dispose.^[450]

In the above I referred to ‘the new owner.' There is a new owner after the right of the centurion to the courtyard has been effected, that is after default by Judah. Ownership passes when the condition given in the arrangement is fulfilled, i.e., when the money borrowed is not duly returned. Consequently, the arrangement could be seen as providing the centurion with a conditional right of ownership to the property (a con­ditional title to it).

One could also take the arrangement to encompass a limited right in rem for the centurion, providing him with a right to execution of the property and reparation for damages from the result of the execution; or take it to be a transaction of pledge. Various types of pledge were possible both in Roman and Jewish law: those in which the object of the pledge stayed in possession of the debtor or was handed over to the creditor. In Roman law, this latter instance is designated with pignus, the other instance, where the object is not handed over, with hypotheca.^[451] In both cases the default of the debtor would allow the creditor to sell the object; this implies that ownership passed at the moment of default.^[452] In Jewish law, the type of pledge in which the object of pledge stays in the debtor's possession is called apoteke, the type in which the object of pledge is transferred to the creditor is called mashkon.^[453] This word means pledge and this type of pledge can be seen as the real pledge, since the transfer of the object of pledge is essential for a real pledge. Apoteke is really a special kind of lien, limited to a certain part of the debtor's assets.^[454] Instead of determining that all the assets will serve for security, a certain part of it could be determined. Because this property remains in the debtor's possession, apoteke is not a real pledge (like mashkon).^[455]

In the present case the object of the security arrangement is a court­yard. It is not clear whether the creditor can be seen as having posses­sion of the courtyard. Since the last lines could be taken to imply that the creditor had rights of lease to the land, one could argue he had pos­session. This would make an eventual pledge a real pledge (mashkon). This is, however, dependent on the interpretation of the last lines, which I will come back to below. The arrangements can also be interpreted as being based on apoteke since the property of Judah (and his father) is the object of security arrangements in general (general lien), while the courtyard is specifically designated as the object of security arrange­ments (specific lien). In that case the act should not be qualified as ‘loan on hypothec' since apoteke is not the same as hypothec.

... apoteke does not create a new charge on the property in question since all the debtor's property is included in the implied, comprehensive charge that comes into existence upon creation of the obligation, but merely serves to restrict an already existing charge to particular assets.^[456]

In the present instance we see that there is a comprehensive charge on all the property, which is not implied but stipulated explicitly in the deal. From this comprehensive charge a specific charge on the courtyard is singled out.^[457] The phrase ‘under hypothec' in the papyrus text could then be understood as ‘with apoteke of...' singling out a specific object for the security arrangements. With apoteke the object stayed in the possession of the debtor. This means that if we accept that the papyrus refers to apoteke the lease to the centurion mentioned in the closing lines cannot be understood as giving him possession of the object. One can indeed wonder whether lease is sufficient to accept that the centu­rion had possession. In any case, the reading ‘to you' designating the lease right of the centurion, could be debated, and therefore there may not have been a lease to the centurion at all. This means that the debtor indeed retained possession of the object of the security arrangements, as it happened with apoteke. Consequently, it is not obvious that uno0fKq refers to a hypothec as it is known in Greek and Roman law.

In both versions there is a lacuna after ‘without.'^[458] Since the line con­cerns the right of the other party to the object of hypothec, it is probably meant to convey that the party could execute his rights without any fur­ther formalities or without the possibility of opposition by the borrower. If this were the first, meaning that execution does not require any fur­ther formality and is thus guaranteed by the document, it would mean that a right granted like this, in a loan, provides a writ of execution. This means that the event of default is in itself enough to have ownership pass to the other party and that he can do with the property as agreed to (in this case acquire, use, sell and administer) without any further formal­ity. This means at the same time that the borrower cannot object to this, since he has lost his rights by way of the default.

Even if the document would not provide a writ of execution in itself, the phrase that the right to acquire etc. is given without the possibility of opposition would lead to the same result: the other party can execute his rights without any further consideration.

In the outer text it is said that the ‘lease which I hereby (?) leased to you' will remain valid.^[459] The question mark indicates that the word ‘hereby' is read by Lewis into a lacuna. The phrase is somewhat obscure since it is not clear what is meant here. What lease is leased to the centurion? Lewis seems to take the lease to refer to the present act, for he says that ‘while this contract is for a loan upon hypothec, in the terminal clause... the document is termed a lease.' (41). I wonder whether this is true. It does not say that the act presented in the document is a lease; it merely says that the lease that is leased to the centurion will remain valid. Since ‘hereby' is added by Lewis, this sentence might as well refer to a prior lease. I can imagine that Judah had leased the property of his father concerned to the centurion; this could also explain for his choice to borrow money from a Roman: he was already into a legal relationship with the centurion.^[460] Judah then decided to borrow money and give the courtyard as security, determining that the lease remained valid.

Another possibility could be to assume that the clause was a general remark stating that leases leased in the past would remain valid. Of the word oot ‘to you' the first letter is a ligature and the last is restored.^[461] Since there is a lacuna right after it I can imagine the letters of the supposed oot need to be read together with this lacuna. It might have been some kind of temporal designation. I do not intend to make any concrete sugges­tions for this; I merely note that it would be more logical from a legal point of view to have a general clause concerning the validity of prior leases, than a clause specifically referring to a lease between the parties. In the latter instance the clause would imply that the centurion would have a valid lease of the courtyard even after he had used his right of execution, thus after the courtyard had become his. This would mean that he would have a valid lease of his own property, which is difficult to imagine.^[462]

Lewis suggests that the clause might have slipped in because the scribe had just writ­ten ‘the standard right-of-execution clause which he had doubtless written many times before in both leases and loans.'^[463] Lewis here seems to think that the scribe somehow confused two things: he was dealing with loan on hypothec, but he wrote a clause on leases. I do not think this needs to be true. When a loan on hypothec is concerned it is always a question of what the effect of execution will be on other rights to the property. Will they end or remain valid? Therefore, it is not at all odd to add a remark on (a) lease(s) to the execution clause in a document of loan on hypothec. This does not mean that the document is a lease, nor does it imply that the lease meant was leased out to the person concerned in the act (in casu the centurion). It merely denotes that, in a case of default and execution, rights to the property based on lease will remain valid. Therefore, the clause fits with the purport of the entire document, regardless of the question of whether the lease concerned was a lease to the centurion (oot) or not.^[464]

One can wonder why there are two different types of documents, deposit and loan, found in the archive, since in Jewish law the depositary (who can be expected to use the deposited goods) is treated like a borrower (sho’el). The main element of the deposit structure, however, was its lack of remuneration. Since there was interest determined in P.Yadin 11, this alone sufficed to exclude the applicability of a deposit there. The situ­ation is different from that in P.Yadin 5, where someone provides the possibility for deposit to help another person out. The depositor will not demand the deposit back, at least not immediately, and he therefore enables the other party to act with the goods concerned. Consequently, the business can be conducted as usual. In the context of P.Yadin 11 we are dealing with a completely different situation. The parties are not fam­ily, they have their own economic interests in the deal. Therefore, a loan, with its more profitable aspects for the lender, is the most logical choice. Deposit and loan were two options for financial dealings, both of which served a certain purpose and could be applicable according to the cir­cumstances. On what regulations the parties based themselves, to what law they referred, should be derived from the descriptions of rights and obligations in the contract, or, if present, from direct references to law. Both in the case of P.Yadin 5 and 11 we have seen that the language used and the legal terms (napa0f|Kq, uno0f|Kq) suggest a connection with a non indigenous legal context while closer examination reveals informa­tion supporting links with indigenous legal arrangements. Both papyri can be argued to have a connection with indigenous law substantively.

P.Yadin 21-22, 23-24: a sale without capacity to dispose?

P.Yadin 21-22 present us with an interesting case, as they represent a sales contract that is written down in two separate documents, each one giving the viewpoint of one of the parties. Consequently, even though sale is a reciprocal act, the documents present us with unilateral declara­tions, in this sense that each document discusses the obligations from the viewpoint of one of the parties. The difference with the ‘purchase contract,' or acknowledgement of receipt, as we have seen it in P.Yadin 8 and 9, becomes clear when we compare the papyri. P.Yadin 21 dis­cusses obligations the purchaser has yet to meet. Consequently, it is not a declaration of satisfaction; it is not an acknowledgement of receipt. On the contrary, P.Yadin 21 appears to be a version of P.Yadin 22, the sale, from the viewpoint of the purchaser. It is noteworthy that the persons, or their viewpoints, are distinguished even to the extent that both con­tracts incorporate the details relevant for one of the parties solely in the document that relates to his viewpoint. The guardian Babatha acts with, for example, is only mentioned in her document (P.Yadin 22:28-29,34), while the guarantor who supports the purchaser is only mentioned in his document (P.Yadin 21:25,35).^[465] It can be argued for the first instance that the guardian need not be mentioned in the purchaser's contract (P.Yadin 21) since Babatha is in that document not acting herself. She is being addressed and therefore a guardian might not have to be men­tioned. In deeds of gift like P.Yadin 19 where a woman is the donee a guardian is not mentioned either.^[466]

But the guarantor, only mentioned in P.Yadin 21, is indeed of impor­tance in both instances: his role is in any case the same. Therefore, the only explanation for his mention in P.Yadin 21 and the lack of it in P.Yadin 22 is that he is solely mentioned by the party who introduces him (the party whom he is supporting; whose side he is on). The legal act is clearly broken down into two parts and accordingly represented in two documents.

The question is whether this had anything to do with an influence of Roman law, of the emptio-venditio (purchase-sale) Lewis mentions in passing.^[467] The sequence of the documents seems to have prompted the suggestion: based on internal evidence Lewis concluded that P.Yadin 21 was written first and thus the purchase ‘contract' precedes the sale ‘con­tract.'^[468] However, the problem with the texts is whether they represent a regular sale.

Babatha can be regarded as entitled to the crop, even though she is not the owner of the orchards: she is said to distrain the properties ‘in lieu of your dowry and debt.'^[469] As the person entitled to the crop Babatha sells the crop to the other party, in this sense that she gives him the right to go to the orchards and pick the dates. Afterwards he will come to her house and weigh out an agreed amount of dates for Babatha, while all that he picks above that amount will be his. It seems that the sale of the dates is in fact more like a share cropping arrangement: the person who works the orchard seeing to the picking of the dates, hands in part of the produce to the person entitled to it, while he keeps another share himself.^[470] Questions about the nature of the agreement had been raised by Isaac:

Is this the sale of a datecrop (thus Lewis), or rather a lease of the right of working the orchard in exchange for a share in the produce? Babatha is to receive dates or money. Who would sell a crop of dates in exchange for dates?^[471]

In a response Lewis maintained that it was a sale:

... there is no question of ‘working the orchard,' but merely of starting in a few days to pick the ripe dates. The buyer would harvest and own the crop, and would pay Babatha a stated return in kind or, failing that, in money. Such sales of ‘standing crops' are numerous in Greek papyri and are still common practice today.^[472]

I was inclined to agree with Lewis that the phraseology of the papy­rus suggests a sale and not a lease. However, some pertinent questions are raised in Radzyner's treatment of P.Yadin 21-22.^[473] Radzyner quotes Isaac and Lewis' response just mentioned and then explains that there are a few problems with Lewis' defense.

First of all,

an examination of Greek documents from Egypt dealing with the sale of crops prior to harvest shows that they do indeed contain elements of lease^[474]

and secondly, there are two versions of Broshi's article that seem to convey different notions. Radzyner explains that in the English version Broshi speaks of a sharecropping arrangement (also referred to above), but in the Hebrew version Isaac used for his argument Broshi appears to describe the ‘buyer' Simon as a lessee and uses the Hebrew root for ‘to lease' four times in his exposition of the contract. As Radzyner observes, ‘this discrepancy highlights the difficulty of pinning down definitions within this legal system.'^[475]

Radzyner also refers to Broshi's explanation of the amount of work involved in harvesting dates constituting ‘about half of the annual labor investment in the plantation. This renders problematic Lewis' assertion that “there is no question of working the orchard” '^[476]

Consequently, the arrangements of P.Yadin 21-22 have to be studied in the light of both lease and sale.

The agreement could be compared to P.Yadin 6, discussed above, where two parties agree to the tending of land and the recompense for it.^[477] There the arrangement is made in that way that the worker will receive a share from the owner, while it was more common to determine that the worker had to give an amount of the produce to the owner.^[478] This is apparently what is determined here in P.Yadin 21-22 for the dates from the orchards. Consequently, even though the act is described as a sale, we could say that the contract deals with work that the other party will do and the recompense he will receive for this. If he does not hand in the share of the dates that is due to the entitled person he will have to pay a fine (expressed as an amount of money per unit of dates). For this payment in cash the guarantor declares his liability. Of course the words for ‘to purchase' and ‘to sell' are used in the text, but it is clear that the object has not been transferred yet. Thus there is a fundamental differ­ence with P.Yadin 2-3 (for the vendor's perspective) and P.Yadin 8 and 9 (for the purchaser's perspective). P.Yadin 21-22 seem to present more of an agreement like P.Yadin 6, about future labor and recompense, than a real sale.

The same line of argument is followed by Radzyner, who points at both the terms for sale and purchase employed in the deeds and the clear reference to an employment agreement as well, referring to the Aramaic deeds P.Yadin 42-46 and the fragments of P.Mur. 24. Both in these fragments and in P.Yadin 21-22

the payment is stated as a quantity of produce which is to be measured and weighed in the presence of the owners according to a standard weight mentioned in the bill. However, the P.Mur. fragments lack any element of warranty or surety, either of the lessee or of the lessor, and also lack speci­fication of the labors to be obligated.^[479]

Radzyner compares the form of the contract, with this combination of aspects of selling and leasing, with contracts from Egypt (Kapnwvcia) and with possible Tannaitic parallels. His conclusion is that the deeds come closest to the Kapnwveia contract, where the element of sale served to give the lessee a better protection. This would indeed explain very well for the fact that Simon is said to buy the crop while in fact the description in the deed makes it clear that he harvests the crop for Babatha, while he will retain part of the crop as compensation for his labor.^[480] At the same time

the Tannaitic halakha recognizes a kind of lessee, whose only duty is to reap or to harvest, and who is treated as a buyer, in terms of sale and pur­chase. That is to say, in Eretz-Israel also we find a relation to that certain kind of lessee for harvest as a kind of buyer, whose level of ownership in the crop is higher than that of other kinds of lessee. The most similar model to that sort of deal in the Jewish sources is a lease contract, to which P.Yadin 21-22 is comparable. The Tannaitic leasing bill reflects Palestinian local practices, not necessarily Jewish. Indeed, the bill which is found in the Tannaitic sources does not contain the terminology of ‘sale’ or ‘pur­chase.’ However, the Tannaitic lease contract is the only source which con­tains an exact parallel to the formulation by which the fruit which Simon received is a compensation for his labor and expenses. Hence in both the linguistic and juristic aspects there is a similarity between P.Yadin 21-22 and a deal of leasing.^[481]

Radzyner’s exposition makes it clear that a type of contract like P.Yadin 21-22 that deals with both selling and leasing resembles both the Egyptian Kapnwveia document and the Tannaitic lease contract. This indicates that the type of document has an oriental origin, which makes a clear link with the Roman emptio-venditio as suggested by Lewis less likely.

In addition to Radzyner s observations I want to look closer at the contents of the act, the same way I did with the other deeds treated in this chapter, to reveal that there some more information can be gleaned as to the law applicable to this document.

The document is written in Greek and contains a stipulatio clause, suggesting that the document was written with a Roman court context in mind (compare to P.Yadin 17). Indeed, while in other cases a dis­pute might have been a theoretical matter, in the situation of P.Yadin 21-22 the documents were written with the possibility of a dispute fully on the parties' minds, as is reflected in the documents' wording. After all, the text makes it very clear that Babatha is selling the crop of an orchard that is not hers, i.e., she is selling property that does not belong to her: P.Yadin 21:11 ‘properties you distrain, as you say, in lieu of...' and P.Yadin 22:9-10: ‘[properties] I distrain in lieu of.'^[482]

I mentioned above that a person could lack the power of disposal, i.e. the power to make a valid legal act concerning a certain object, for example, if he was not the owner of the object.^[483] In this case Babatha sells an object that is not hers and this fact is acknowledged in the act of sale. The fact does not invalidate her as vendor, because it is counterbal­anced by another fact: it is explained that Babatha may not be owner, but that she is nevertheless entitled to sell the produce of the property on basis of specific rights to this property.^[484] These rights are specified as rights based on dowry and on debt.

One can argue whether these are two different rights or the construc­tion should be read as a hendiadys: ‘the debt of your dowry.'^[485] Lewis writes:

Upon the husband's death a Jewish widow was entitled to the return of the amount of money stated in her ketubba (i.e. the dowry plus the bridegroom's promised gifts, if any; cf. V of the General Introduction), or, in lieu thereof, to maintenance at the expense of the deceased husband's estate. Having received neither, Babatha proceeded to take possession of the orchards.^[486]

This seems to imply that Lewis takes the debt to refer to the maintenance owed to Babatha by the heirs: the debt is dowry related. In any case he does not explain what the debt could mean when it is taken to be inde­pendent of the dowry.

I think there is mention of two rights, dowry and debt, which are based on two different contracts that we find in our archive: P.Yadin 10, Babatha's marriage contract, and P.Yadin 17, an act of deposit in which her husband borrows money from Babatha in a deposit construction.^[487]

Babatha bases her right to the crop of the orchards, her right to sell property that is not hers, on her dowry and a debt, that is, on arrange­ments she made with her husband in connection with her marriage to him and a debt he owed her. In this way Babatha explains that she is entitled to sell the produce of the property even if this would nor­mally not be the case. Babatha's rights that are the reason for her unex­pected capacity to sell may have been rooted in Jewish law. There it was determined that a widow was entitled to the return of her dowry and to maintenance from her deceased husband's estate until the return.^[488] All the husband's property was entailed to meet this obligation. This was explicitly determined in the Mishnah, but it is also thought to have been part of Babatha's marriage contract with Judah.^[489] Consequently, when Babatha mentions her dowry it is obvious that she refers to her rights stemming from her ketubba and the fact recounted there that the husband's estate is entailed to meet the obligations he has undertaken towards his wife. Cotton and Greenfield have mentioned in an article that in Egypt

wives were ordered to deposit a copy of their marriage contract in the same public archives in which their husbands' properties were registered in order to warn prospective buyers that these properties were entailed.^[490] Cotton plausibly argued that this registration of property could very well be the registration Besas refers to, in P.Yadin 23-24, where he asks Babatha to prove her right to orchards which are ‘registered in her name.'^[491] This cannot mean ‘registered as her property,' for instance dur­ing the census: Babatha's ownership would then be obvious and there would hardly be a reason for Besas' demand. Therefore, it is likely as Cotton suggested that ‘in the registration' refers to registration in a public archive to indicate that the property was entailed and that the orchards of P.Yadin 23-24 would then be the same ones as those meant in P.Yadin 21-22.^[492]

The reference to an Egyptian context could indicate that the position of the wife towards her husband's estate, based on dowry, was not an exclusive feature of Jewish law. Indeed it seems that Babatha could have made the same claims she is making here, if her marriage contract of P.Yadin 10 had not been a real ketubba, but, for example, a Greek mar­riage deed like P.Yadin 18.^[493] Still, the liability of the groom for return of the dowry with all he owns is in P.Yadin 10 part of a contract that is set in the framework of Jewish law (with the phrase ‘according to the law of Moses and the Judaeans'). Therefore, it can be claimed that Babatha's right to return of the dowry is established under Jewish law,^[494] and con­sequently, that her right to sell Judah's property as recorded in this act is based on a right acquired under Jewish law. This very fact places P.Yadin 21-22 in a framework of Jewish law.^[495]

The debt Babatha mentions might have been the dowry debt; I men­tioned Cotton's interpretation as an hendiadys to mean ‘the debt of your dowry.' Yet the mention of a debt could be taken to point at a distinct, i.e. second, right Babatha had to her husband's estate based on a debt he owed her. This debt might have been the one mentioned in P.Yadin 17. Above I discussed P.Yadin 17 in the light of Roman and Jewish law and showed there is reason to believe the references to ‘law of deposit' in P.Yadin 17 are references to Jewish law.^[496] This means that when ‘debt' here in P.Yadin 21-22 is to be understood as the debt of P.Yadin 17, Babatha bases her right to sell on rights to Judah's property acquired in two different legal acts that are both rooted in Jewish law. Babatha would then be reclaiming the money at the time of Judah's death, that is the moment of the drawing up of these documents, P.Yadin 21-22. At that time, Babatha's position as a widow would require financial arrangements to secure her income. If what Lewis has suggested is true and the heirs did not pay the dowry and the maintenance, Babatha had to resort to sale of crops to ensure her income. This shows that a widow's

rights based on the prior arrangements were indeed of great importance to her.

Roman law did not know the same arrangements for wives and wid­ows as oriental law did. Therefore, Babatha's behaviour would have been out of order, and more importantly she could not validly make the legal act of P.Yadin 21-22. The mention of the arrangements at the heart of her sale, i.e. the explanation of her rights to make the sale despite her lack of ownership of the groves concerned, should therefore be under­stood as an explanation of the applicable law. Even if Babatha does need a guardian, a formal requirement made by Roman law, she is apparently referring to her own legal system where the substance of the matter is concerned.

P.Yadin 21-22 are treated here because they concern an act of sale, or a share cropping agreement, but I could just as well have treated them in combination with P.Yadin 23-24, 25 and 26, which all pres­ent documents that deal with the situation after Judah's death. In this context it is particularly clear to see that the order of succession and the consequences of a person's death were determined by Jewish rather than Roman law.^[497] In P.Yadin 23-24, the guardian of the minor sons of Judah's deceased brother investigates into Babatha's right to part of Judah's estate. It is clear that the man is acting as representative of Judah's heirs. This implies that the sons of Judah's brother are his rightful heirs, even though Judah had a daughter, Shelamzion. Consequently, Roman law does not apply: contrary to Jewish law, Roman law gave female children an equal right to inheritance and therefore under Roman law Shelamzion would have been her father's heir. Since the order of suc­cession here was not Roman, one might expect it required an explana­tion, like the explanation of Babatha's rights to her husband's estate in P.Yadin 21-22. Indeed, we find such an explanation in P.Yadin 24, where it is said that the sons take the place of their father in inheriting Judah's estate, i.e. in being the rightful and legal heirs to Judah's estate.^[498] The importance of the remark is not in the mention of substitution (chil­dren taking the place of a deceased parent), since this was common in most legal systems, but exactly in the mention of the word ‘inheriting.' The children take the place of their father with regards to their right to inherit Judah's estate, i.e. to be his rightful heirs. In that way the remark seeks to explain the order of succession: in the present case the children of the deceased brother of the deceased are the legal heirs (despite the presence of a daughter of the deceased).^[499] This means that the matters at issue were treated from the basic assumption that Jewish law applied to the relationship between the parties, i.e. to the order of succession and the rights certain family members did or did not have.

Yet the presence of this explanation of the order of succession sug­gests that the order followed was not obvious. Apparently, the reference is made to clarify what law should be applied in the present case, or at least what law is behind the case itself. This law is clearly not Roman and can be identified with Jewish law. This means that the explanation of the order of succession does not only indicate that Jewish law was behind the case, but also that the overall context, most probably the context of the court to judge the dispute, was not Jewish. Had the applicability of Jewish law been obvious, an explanation might not have been necessary. The same situation occurs in P.Yadin 21-22 where Babatha explicitly explains why she is entitled to sell dates from orchards she does not own.

A formal aspect of the papyrus that does point at an influence of Roman law can be found in P.Yadin 21:27-28 and 22:29-30, where it reads: ‘the formal question having in good faith been asked and acknowl­edged in reply.' I refer to the detailed discussion of the stipulatio clause above.^[500] In this instance, it would be tempting to assume that there was a demand to include the stipulatio in the acts, since this could explain the fact that two deeds were drawn up pertaining to one legal act in P.Yadin 21-22.^[501] Since stipulatio was a unilateral contract, obliging only

one of the parties, the promissor, it can be imagined that it would be hard to incorporate it into an act where both parties would be bound. This fact might have induced the scribe to write two deeds, having each party take the stipulatio for his own obligation.^[502] Consequently, the two deeds of P.Yadin 21-22 may testify to a Roman influence anyway, although not on the basis of the emptio-venditio as Lewis assumed. Obviously, this Roman influence is only of a formal nature.