IV. Conclusions: What Marriage Documents Can Show Regarding The Development Of (Jewish) Law

The three marriage contracts present in our archives are three completely different types of document, not only written in different languages and employing different terminology, but also implying different legal backgrounds or contexts.

P.Yadin 10 is obviously a real ketubba, incorporating all the clauses that became mandatory in later Mishnaic law. The document can therefore be taken to have a truly Jewish character, which has often been thought to be lacking in numerous other documents from the same archive. Nevertheless, if we question what makes the ketubba of P.Yadin 10 stand out in the company of the other marriage contracts P.Yadin 18 and P.Hever 65, there is no real answer. It is unlikely that a document like P.Yadin 10 was deemed to be constitutive for marriage, while, for instance, P.Yadin 18 and P.Hever 65 could not have had this effect. Especially in the light of the practice of agraphos gamos, valid marriage contracted without written proof, we have to assume that a marriage at the time could be valid whether there was written proof or not. It is important to note in this light, that written proof need not necessarily denote written proof of the formation of marriage. If the spouses later on drew up a contract regulating their financial obligations towards one another, this contract may not mention the formation of marriage and yet provide written proof as to the existence of marriage, thus effectively turning agraphos gamos into egg- raphos gamos.^[1184]

Consequently, we have three types of marriage contracts in our archives: P.Yadin 10, a contract drawn up at the start of the marriage and incorporating the regulations later found in the Mishnah, P.Yadin 18, a contract drawn up at the start of the marriage, but not including these regulations, and P.Hever 65, a contract drawn up at a later stage, that is, applying to an agraphos gamos situation.

It seems that the circumstances dictated at what point a document was drawn up: it is noteworthy that the dowry of P.Yadin 18 is over five times as much as the dowry concerned in P.Hever 65. Consequently, one can argue that in the first case it was wise to arrange for things as soon as possible, that is, right at the start of the marriage. In Babatha's case we can also consider that Judah had been married before (or was perhaps still married) which meant that a contract served to create clarity for all parties involved as to their rights and obligations.

Considering that P.Hever 65 was drawn up at a later stage, its aberrations from the pattern found in P.Yadin 10 are not astonishing. The differences between P.Yadin 10 and 18 are more intriguing, especially if one keeps in mind that the groom of P.Yadin 10 is the father of the bride of P.Yadin 18. However, despite the pronounced differences between the documents it is not necessary to describe P.Yadin 18 as a non-Jewish marriage contract, or a marriage contract in the Hellenistic tradition.

In fact, many elements in the document clearly go against this assumption. As Katzoff pointed out, the reference to Greek Hellenistic custom regarding the maintenance obligation should not be read in the context of Greek contracts: those do not specify a standard for maintenance.^[1185] Furthermore, Lewis pointed out that the term is not attested in documents from the Near East in whatever language and does not occur in the Greek papyri from Egypt.^[1186] This means that the phrase does not connect our document with Greek documents by non-Jews, but, on the contrary, sets it apart. As the phrase occurs in P.Hever 65 as well, we have two occurrences in documents by Jews.^[1187] This suggests that its inclusion should be related to a Jewish legal context. Where Katzoff had already pointed out that Jewish legal arrangements strive for clarity, a reason why such an arrangement could have been included, Lapin adduced a more compelling argument when he pointed out that in Jewish law it was not univocally clear that a father was obliged to support daughters during his lifetime.^[1188] If we assume that this was indeed a disputed matter, it is likely that a specific arrangement to this point was incorporated.

Of course this only makes sense, if the document as a whole should indeed be read in the context of Jewish law. That means that the reference to law pertaining to the entire contract, κατά τους νόμους, should indeed be taken to refer to Jewish law. That this is not specified by an adjective should cause no wonder: in the majority of our documents the references to law do not specify to what law.^[1189] This should be deduced from the situation: in the Nabataean Kingdom general references were to Nabataean law, specific arrangements could refer to Jewish law. Under Roman rule substantive arrangements referred to indigenous law, as can be seen when such arrangements are carefully analysed.^[1190] In P.Yadin 18, drawn up under Roman rule, we can assume that the legal background was indigenous, as in the other documents like the preceding P.Yadin 17. Consequently, the document should not be contrasted with P.Yadin 10.

330.

That the structure of P.Yadin 10 was not followed in P.Yadin 18 should not cause much wonder, I believe, if one takes the legal consequences of P.Yadin 10 into account. As argued in detail above, the legal arguments in the archive that draw on the arrangements in P.Yadin 10 do not show that the specific structure of P.Yadin 10 was essential for the arrangements to be invoked. A good example is Babatha's action to sell the dates (P.Yadin 21-22): this is based on liability for return of the dowry contracted by the husband in the marriage contract. This liability is contracted in other marriage contracts as well, for example Greek marriage contracts from Egypt. Consequently, Babatha could have invoked the same rights had they been written down in a contract like P.Yadin 18. This means that the evidence from the archive shows that the special form of P.Yadin 10 was not necessary from a legal point of view. Rather, this form should be seen as one type of marriage contract available at the time.

However, it should not be seen as the Jewish type of marriage contract as opposed to a non-Jewish type, albeit used by Jews. P.Yadin 18 can, by virtue of its references to law, be placed within the same legal framework as P.Yadin 10. Consequently, the outer appearance of a document, its language, its formulae, should not be decisive in determining the legal background of the document, or the law applicable to it, but one should look primarily at references to law in the documents. In understanding the three forms of marriage contract encountered in the archives as all valid forms of marriage contract under Jewish law at the time, one is confronted with the evidence in the Mishnah that one form of marriage contract, that of the ketubba, was eventually selected as the most desirable form of marriage contract. One cannot claim that it was the only form of marriage contract, as apparently the possibility remained that a ketubba was drawn up, not at the start of the marriage, but at a later stage,^[1191] and the court stipulations applied to marriages even when those stipulations had not been put down in writing.^[1192] One could understand the court stipulations rather as a framework for marital obligations than as a decisive form for a certain type of written contract.^[1193]

It would be interesting to know what part the Roman dominion played in the process of developing written forms for the undertaking of certain obligations. I can imagine that confrontation with Roman jurisdiction forced people to be more explicit about the rules of substantive law they wanted to apply to their contract. Evidence of such a development can be found in the Babatha archive, where the references to law seem to change as time goes by.^[1194] The most intriguing thing about this seems to be that what the rabbis accepted was not always what was common to the general ancient eastern tradition. It has been noted by various scholars that Babatha and her family were well integrated into their social environment: they dealt with Nabataeans, had them for guardians, had contracts drawn up in Nabataean Aramaic and so on.^[1195] Nevertheless, the forces that came to shape what would be exclusively Jewish law were already at work in their lifetime as can be seen from the presence of P.Yadin 10 in the archive.^[1196] Even if one accepts that elements of what was to become Jewish law were common to other oriental systems,^[1197] it cannot be denied that the codification in the Mishnah consciously sought to set certain rules apart and identify them as rules of Jewish law.

Perhaps the presence of several different types of documents of one legal institution (like marriage documents) and the references to law that are sometimes general and sometimes specific can show that a process was working that slowly differentiated rules and formulas that were considered especially Jewish from those that were thought to be general.^[1198]

The consequences of this differentiation and selection are important to note: by selecting a certain type of contract other types were effectively abolished. This is interesting, especially in the light of legal effectiveness, as mentioned above. There is no reason to assume that a contract like P.Yadin 18 could not have had the same legal effect as P.Yadin 10 had where property was concerned. Therefore, the choices made should apparently also be attributed to other considerations than employability and legal effectiveness.

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Source: Oudshoorn Jacobine G.. The Relationship between Roman and Local Law in the Babatha and Salome Komaise Archives. IDC Publishers,2007. — 456 p.. 2007

IV. Conclusions: What Marriage Documents Can Show Regarding The Development Of (Jewish) Law

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