III. P.Hever 65: Salome Komaise’s Document: Premarital Cohabitation or Agraphos Gamos? Structure and most important features of P.Hever 65

P.Hever 65 was originally found with the Babatha archive and published in Lewis' edition of the Greek documents from this archive as P.Yadin 37. It was clear from the start, though, that this document did not belong to the Babatha archive, as it concerned another woman.

The document is drawn up between groom and bride, like P.Yadin 10, but obviously does not resemble this document much otherwise. On the contrary, it seems to come closer to P.Yadin 18, being written in Greek, and containing several comparable clauses, like a promise to feed and clothe the wife and any future children νόμω έλληνικω και έλληνικω τρόπω ‘according to Greek custom and manners' with liability for that maintenance by way of a surety on all he owns.

It is interesting to see that the reference to Greek custom is here repeated and the instance can serve to clarify that in P.Yadin 18 custom is actually meant and not law. The reference is here to both custom and manners, in a phrase with a chiastic structure emphasizing its formulaic nature. That the reference to Greek custom recurs in another marriage contract from the same area and period suggests that it was indeed cus­tomary to indicate what level of maintenance could be expected by refer­ring to a certain custom, manner or indeed lifestyle.^[1157] As discussed in the context of P.Yadin 18 above, in Jewish law it became customary to do so, while in Greek contracts the maintenance obligation was undertaken ‘according to his means.'^[1158] As Lapin discussed, it was not self-evident that the groom contracted liability to maintain his wife and especially any daughters born from the marriage.

By far the most intriguing phrase of P.Hever 65 specifically is, however, to be found in the opening part where it is determined that the groom will ‘live with her as also before this time....'^[1160] If the document is to be understood as a marriage contract denoting the start of the marriage (recall P.Yadin 18, where Shelamzion is described as a virgin when she is given to Judah Cimber), this reference to continuing life together is dif­ficult to grasp. Was the couple actually living together without a formal marriage contract having been drawn up? What did this mean for their relationship before and after the document came into existence?

Premarital cohabitation?

Tal Ilan wrote an article about P.Hever 65 with the title “Premarital Cohabitation in Ancient Judea: the Evidence from the Babatha archive and the Mishnah (Ketubbot 1:4)”.^[1161] The title already indicates what the article sets out to demonstrate: when the Mishnaic requirements are compared with the factual evidence from this papyrus, the suggestion rises that we are here dealing with a case of premarital cohabitation. Nevertheless, it is debatable whether the later requirement that a man is not allowed to keep his wife without a ketubba, if even for one hour, already applied at the time. Several types of marriage documents seem to have been current at the time and a Mishnaic passage says that a woman can be acquired as lawful wife by three things: a sum of money, a written document, cohabitation.^[1162] The essential question here is: do these three have to go together to make up a valid marriage or would any of the three on its own suffice? If the latter is true, the Mishnah itself shows that Ilan's conclusion is not justified: the fact that bride and groom lived together before P.Hever 65 was drawn up cannot constitute premarital cohabitation, since cohabitation naturally causes a marriage tie to come into existence.

As there is no direct evidence that a marriage document was essen­tial for the formation of marriage at the time and in the milieu of our documents (that is, that a marriage contract had constitutive value), it is legitimate to assume that cohabitation could indicate that a mar­riage was contracted. Consequently, a phrase in a written document like ours denoting continuation of life together does not imply ‘premari­tal cohabitation' but rather the opposite: it implies that marriage had already begun when cohabitation began and that is continued in the same manner after the drawing up of the document. Legally, the draw­ing up of this document then only serves to record obligations between the spouses as later evidence, without having a direct bearing upon the marriage as such.

Agraphos gamos

In discussing P.Yadin 37 (= P.Hever 65) Lewis already referred to the term agraphos gamos, unwritten marriage, employed in Greek papyri from Egypt to indicate that a couple lived together as man and wife with­out any written contract.^[1169] They could later on change their unwritten marriage into a written one, eggraphos gamos, by having a deed drawn up. Indeed, we have seen above that frequently deeds were drawn up after a couple had begun living together, often at the time when children were born to them. These deeds arranged for the financial sides of the match, for example, the amount of dowry paid, the return of this pay­ment, or for the children to be heirs to their parents' property.

Close as this parallel may be, however, in 37 the expression “as also before this time” more likely implies that the bride and groom had been living together since the day of their betrothal, in keeping with a Jewish practice of the time when the bride was both an orphan and a minor.^[1171]

As Lewis explains her being an orphan called for the presence of a guardian: normally her father would have been present at the drawing up of the deed. Now that more about Salome Komaise is known from the other documents that have been identified as part of her archive we can gather that Salome Komaise was indeed an orphan, but probably not a minor at the time of her marriage.^[1172] Furthermore the presence of a guardian cannot be explained by the bride's minority either: as Cotton argued, it should be linked with the presence of guardians for women in the other Greek documents from the Judaean desert.^[1173] Therefore, Lewis' argument concerning a Jewish practice behind the continuation of living together obviously cannot be maintained.^[1174]

If Salome Komaise was not a minor and the continuation of life together cannot be connected with Jewish practice, Lewis' first assump­tion comes back to mind: does this document present a case of agraphos gamos turned into eggraphos gamos? This seems likely: the document focuses on pecuniary matters of which the arrangements for the dowry are a substantive part. As Cotton observed concerning other cases, ‘the receipt of a dowry constituted the occasion for drawing up a con­tract...'^[1175] Although the contract caused the marriage to change from agraphos to eggraphos this did not imply anything for the validity of the marriage in its agraphos form:

There was only one type of marriage, and it could be contracted by mere de facto union.

In this context Katzoff observed that

Wolff's point is that there was no ‘institution' ofagraphosgamos. Indeed, the very term is modern. What there was in the society reflected in the Greek papyri from Roman Egypt is a single institution of marriage, and that was usually, but not necessarily, accompanied by a written document.^[1177]

Katzoff then goes on to point out that the idea in Jewish law was about the same: a ketubba need not necessarily be written. He discusses the requirement already referred to repeatedly above that a man may not keep his wife without a ketubba even if it was for but one hour, giving a counter passage, where it is said that a man may keep his wife for two or three years without a ketubba. Ketubba should here be understood in the sense of an obligation of the groom towards his wife of at least 200 zuzin. This means that a man could marry without undertaking a specific financial obligation towards his wife (for example because no exact amount of money was determined), and the marriage would be valid for a couple of years, after which a written document was drawn up anyway.^[1178]

The payments referred to in both P.Hever 65 and P.Yadin 18 do not concern bride price but dowry, payment made by the family of the bride to the groom.^[1179] Katzoff seems to take the two to lead to the same result as he says that the essence of the ketubba is in ‘the obligation of no less than 200 zuz to the wife,' apparently regardless of the fact where the money the man is obliged to return came from (from him, bride price, or from the bride's family, dowry). Katzoff then notes that the amount referred to in P.Hever 65 is too low: it is not 200 zuzin, but 96 denarii.^[1180] This means that even in Katzoff's argument P.Hever 65 is not a docu­ment that could turn a ‘match without a ketubba’ into a ‘match with a ketubba’ or rather a valid marriage according to later normative Jewish law. Of course we can speculate whether the requirements the Mish- nah makes for the amount of the obligation were already fixed, one can imagine they were not. However, on the whole, it seems safer to assume that P.Hever 65 in fact sought to turn (valid) marriage without a contract into (valid) marriage with a written contract, which need not necessarily have been a Jewish practice or be related to the ketubba. As mentioned above it is likely that in the stages before the actual codification of Jew­ish law several ways were accepted to constitute valid marriage: a gift, intercourse and a written document. Gradually apparently the written document as proof of the obligation of the husband towards the wife became essential, and even constitutive, for marriage.

Cotton assumes that in the case of P.Hever 65 the receipt of a dowry called for the drawing up of the document and indeed this seems likely: the document is mainly concerned with this dowry and as Cotton observes, relates the day of drawing up to the day of receipt of the dowry ‘on this present day....’1^[1181] Consequently, we have to assume that groom and bride began their lives together without a dowry having been trans­ferred or perhaps even fully agreed upon, while after a while the dowry was actually transferred and a document to this point drawn up. This need not necessarily imply, as Cotton concludes, that P.Hever 65 is not a marriage contract: Yiftach-Firanko pointed out that there are phrases in the deed that do relate it to other marriage contracts.^[1182] Rather, we should conclude that there are several types of marriage contracts: those that are written at the start of the marriage and also refer to this, like P.Yadin 10 (‘I take you as my wife') and 18 (ekdosis, the bride is described as a virgin), and marriage contracts that are written at a later stage, like P.Hever 65. That the term marriage contract can apply to all, is obvious when we consider the legal effect of the documents: in all cases the doc­ument records the obligations the spouses have towards one another in the context of their marriage. This does not say anything as to the legal act being constitutive for the marriage itself. Indeed, the case of P.Hever 65 suggests that a marriage contract did not necessarily have a constitu­tive value, but that partners could contract a valid marriage without any form of written proof. This is important, I believe, in the light of the find of P.Yadin 10. Despite the fact that this document closely resembles the Misnnaic regulations for the ketubba, there is no indication that a docu­ment like P.Yadin 10 was constitutive for marriage, at the time.

Conclusions: Legal implications of different interpretations

The change from unwritten to written marriage was obviously from a legal point of view made for reasons of establishing written proof of the obligations undertaken by the groom towards his bride. The drawing up of the document did not change the marriage itself, that is, it did not constitute legal validity that had prior been lacking. This means that a document like P.Hever 65 is a marriage document of another nature than the later Jewish ketubba. As Ilan indicated in her treatment of P.Hever 65 in the light of Mishnaic evidence, a ketubba does have con­stitutive value. Without a ketubba the marriage is not valid, even though the couple may cohabitate. In that light P.Hever 65 could present a case of a marriage that was invalid by rabbinic standards: the couple had no ketubba drawn up at the start of their cohabitation. Following this inter­pretation, we have to conclude that the writing of a document at a later stage could not make up for this: a ketubba had to be written at the start of the marriage, or to put it differently, the marriage can only be taken to exist from the moment when a ketubba has been drawn up. This is an essential difference with the change from agraphos to eggraphos gamos, where the marriage has been valid from the start and the writing of the document does not change anything in that respect. Cotton also indi­cated that the drawing up of a document like P.Hever 65 cannot be taken to be the drawing up of a ketubba, therefore it cannot make the marriage valid in a rabbinic legal context.^[1183]

All of this is only relevant if we assume that the regulations pertaining to the ketubba already applied at the time of our documents. The find of P.Yadin 10 and its close resemblance to the later Mishnaic regula­tions suggests that this was the case. However, exactly the presence of those marriage contracts that do not follow these regulations testify to the opposite: there was no demand to have a written contract drawn up at the start of marriage. Rather marriage could be contracted validly without any written proof, as Salome's marriage shows, while a contract dealing with the obligations of the spouses could be drawn up either at the start of the marriage or at a later stage. Which of the two options was chosen, was, I believe, a matter of circumstances. In the case of Babatha, a widow with property of her own, and the case of Shelamzion, a daugh­ter with a substantial dowry, it was probably considered wise to have a contract drawn up right at the start of the marriage. By contrast, the marriage of Salome Komaise seems to have encompassed less property concerns: her dowry with its 96 denarii is considerably less than the 500 denarii dowry of Shelamzion. Therefore, the couple may have decided to postpone the writing of a document until a later moment and have started living together. Whether it was earlier agreed upon that a docu­ment would be drawn up at a certain moment or external circumstances called for it cannot be determined.