I. P.Yadin 10: Babatha’s Document: A Real Ketubba? Structure and most important features of P Yadin 10

The find of P.Yadin 10 caused great excitement among papyrologists and historians and for good reason. The document presents us with a mar­riage contract that follows the structure of many later marriage con­tracts within the Jewish tradition and actually contains several of the clauses that were made mandatory in the Mishnah.^[1015] The next ketubba known to us is dated to 417 CE, which means that the find of P.Yadin 10 actually provided an instance of the same type of contract, which was almost three hundred years younger than the first instance found so far!^[1016] It is in this context important to mention that the later Jewish marriage contracts can be divided into two groups designated as Pal­estinian and Babylonian.

The structure of P.Yadin 10 has been discussed in detail in an article by Yadin, Greenfield and Yardeni, and their discussion is for the main part reproduced in Documents II.^[1020] I will summarize the main points of this discussion, focusing on those features that have a direct relevance for the character of the document as comparable with or distinct from the other two marriage contracts to be discussed below.

The ketubba, to judge by the early ones that have reached us and by literary references, contained the following elements: 1) the date and place of its writing; 2) the names of the groom and bride as part of the groom's decla­ration; 3) the marriage proposal; 4) the promise to give the bride her due; 5) the mandatory ketubba clauses or ‘court stipulations'; 6) the statement that the document will be replaced; and 7) a statement by the groom that he accepts all the above provisions.^[1021]

All of these elements can be found in P.Yadin 10:^[1022]

1) lines 1-2; 2) lines 2-4^[1023]; 3) lines 3-5; 4) lines 6-10; 5) lines 10-16; 6) lines 16-17 and 7) lines 17-18.^[1024]

The first feature that could have pointed at the Jewish character of the document, the placing of the day of the month before the year, cannot be traced, since the lines that contained the date of the document are damaged.^[1025] Lewis set it between 122 and 125.^[1026]

The names of bride and groom are missing as well, but it can be gathered from the rest of the document that the document was indeed drawn up between them.^[1027] I note that this cannot be derived from the statement on the verso of the papyrus: ‘for Babatha daughter of Shimon due from Yehudah son of El‘azar' since such a statement need not neces­sarily denote that the document was actually drawn up between groom and bride. This can be seen in the marriage documents from Elephan­tine, where the document is drawn up between the father (or brother) of the bride and the groom, while the endorsement (the defining line on the outside of the papyrus) states ‘document of wifehood which X [the groom] wrote for Y [the bride].'^[1028] The endorsement thus denotes the real judicial relationship: the document sees to obligations undertaken by the groom towards the bride and not towards her family.^[1029]

The extant text begins in the middle of the marriage proposal (line 4-5) and immediately contains a reference to law, as the groom declares that the bride is to be his wife ‘according to the law of Moses and the Judaeans.' As my discussion of references to law in previous chapters of this study has shown, it is unusual to have an identifying element in the reference to law, indicating what law is meant.^[1030] This makes this refer­ence here in P.Yadin 10 stand out.

Yadin et al. note here that the usual formula was ‘according to the law of Moses and Israel,' a phrase which is used until the present day.^[1031] They also refer to the apocryphal book of Tobit where the groom is said to wed his bride ‘according to the law and decree written in the book of Moses' and to CPJ 128, where ‘the phrase ‘he holds me as a wife accord­ing to the law of the Jews' is reconstructed.'^[1032]

The question is of course whether any special significance should be attached to the use of ‘Judaeans' (’Ê71Ë’) instead of Israel. Yadin et al. note that in later ketubbot one can also find 'Ê71Ë' instead of Israel.^[1033] Whether this should be read as ‘Judaeans' or more generally ‘Jews' is not always clear. The Mishnah gives a reference to ‘according to the law of Moses and Jewish (law),' giving nwin', an adjective to go with m, law.^[1034] In this passage it is determined what conduct goes against ‘the law of Moses' (these regulations can indeed be found in Biblical law) and what conduct goes against ‘Jewish (law)' (here we find things like letting hair hang loose and talking with strangers, or even in general talking too loud). Apparently these latter regulations concerned what was consid­ered (im)proper behaviour for a (married) woman.^[1035] ‘Jewish (law)' then probably referred to Jewish custom, what is accepted among Jews. The wife's conduct should obviously be judged not only on the basis of what the law of Moses determines about this, but also on the basis of what is in general deemed acceptable among Jews. It is needless to say that such an addition leaves room for regional differences in judgment of specific instances of a case of assumed wrong conduct. One can wonder whether the phrase should here not be interpreted in the same way. Do we have to read ‘the law of Moses and, more specifically, of the Judaeans,' that is, ‘the law of Moses, with in addition the specific rules of custom adhered to by Judaeans'? This is obviously relevant in the present case, as the Mishnah records that there was a difference in interpretation between Jews in Judaea and Galilee, concerning the position of the wife after her husband's death.

Part of the proposal is the groom's promise to take the bride into his house and provide her with food and clothes. This general promise is followed by a mention of the amount of money the groom will owe the bride. This amount of money plays an important part in the entire marriage contract, as it recurs in lines 11 and 16. In line 11 the groom declares that he will still owe the bride the ketubba money after he will have redeemed her from a possible captivity. This phrase probably pre­vented the groom from deducting the costs of redemption from the ketubba money.^[1038] In line 16 the groom refers to his heirs who will have to pay the ketubba money to the wife in the event of his death. A reference to the ketubba money has probably also been part of lines 12-13, where the clause concerning male children has been restored: male children inherited their mother's ketubba money at her death.^[1039] Line 18 prob­ably contained a guarantee that the groom would be liable with all he owned for return of the ketubba money. The ketubba money is so essen­tial for the entire arrangement that one could even say that the demand for a ketubba made in the Mishnah does not see so much to the docu­ment (a written agreement) as to the payment of the ketubba money.^[1040] A man may not keep a wife without proper arrangements for the ketubba money, that is, for the payment of it and its eventual return.^[1041]

The main obligation of the husband is formulated as related to the value of the dowry.

The use of the word (translated by ‘rightful allocation') denotes a right to something in general, a right that is granted by law: one could translate ‘together with the legally arranged allocation of food, clothing and conjugal rights.'^[1043] It is clear in what legal system these arrangements can be found, since it has been said the bride will be a wife unto the groom ‘according to the law of Moses and the Judaeans.'

The obligation of the husband is further specified by the phrase ‘the (fitting) sustenance of a free woman.' Free here probably refers to her freeborn status.^[1044] As with the term np’bro we encountered before,^[1045] it is possible to speculate on what was considered to be ‘fitting.' Read in the context of the entire document the standard to be applied here should clearly be a Jewish standard: the entire contract is subjected to ‘the law of Moses and the Judaeans' and the reference to ‘food, clothing and con­jugal rights' goes back directly to a Jewish legal source. Indeed, gen­eral standards were developed to determine what kind of maintenance a wife could demand from her husband as can be seen in m. Ketub. 5:8-9 where amounts of food and items of clothing are specified. 'The Mishnah even determines what conjugal rights a woman had in relation to the profession of her husband, i.e. his possible absence for his business.^[1046] An obligation to feed and clothe the wife are common in marriage con­tracts, but the addition of the conjugal rights seems to me to be a specific Jewish feature.

Lines 10-16 contain the mandatory clauses seeing to redemption from captivity (lines 10-11), provision for male children (12-13), provi­sion for female children (line 14) and provision for wife in case of death husband (line 15). The Mishnah also mentions the ketubba itself, ‘that is the mandatory amount due to the wife in the event of divorce or of her husband's death'^[1048] (mentioned in line 6, 8, 11 and 16) and the pledg­ing clause, ensuring that the husband is liable with all his property for return of the ketubba money (probably part of line 18). Although lines 12-13 and 18 are restored to contain the said clauses, it is remarkable that all clauses found in the Mishnah are present in this single docu­ment. It shows that the demands made in the Mishnah indeed go back to real life practice and that before the demands were written down and codified, people took care to make all of them part of their contracts. This is especially interesting in light of the fact, referred to above, that before the documents from the Judaean Desert were found, no ketubbot containing the Mishnaic clauses were known to us. It is also important in the light of the other marriage contracts found that do not contain these clauses: although the Mishnaic clauses were used in practice, they were not always used.^[1049] That raises the question of why they were or were not used in the documents we are dealing with here.

The ketubba and its legal implications

Often we do not know what the legal implications were of the acts in the documents drawn up, whether loans were duly repaid, whether court cases were won or in what way an inheritance was eventually divided. The Babatha archive provides a welcome deviation from this principle as it shows us in several instances what happened later concerning a certain legal act. There is for instance the case of P.Yadin 27 above, a receipt for maintenance money that seems to show that Babatha lost her case against the guardians which was the subject of P.Yadin 12-15 and indirectly of P.Yadin 28-30.^[1050] P.Yadin 10, Babatha's ketubba, plays an important part in several other documents in the archive, whether this is said in so many words or merely implied by the context. These instances where the marriage contract plays a part in the legal matter at issue, are suited for an investigation of whether the legal implications of the marriage contract found are a consequence of the specific Jew­ish nature of the contract or should be seen in the context of marriage documents in general.

Babatha’s sale of the dates

In Chapter 4, on law of succession, Babatha's position after the death of her husband Judah was discussed: Babatha acted actively concerning parts of his estate, in selling crops of date groves (P.Yadin 21-22), bas­ing her right to do so on her dowry and a debt.^[1051] The dowry obviously refers back to the marriage contract, recorded in P.Yadin 10, while the debt probably sees to the depositum of P.Yadin 17.^[1052] Lewis related the sale specifically to the widow's right to her ketubba money and to main­tenance, both of which should be provided by the heirs.^[1053] The evidence here shows that if the heirs did not provide the maintenance or repaid the ketubba in due time, the widow could actively do something about this. The principle works like hypothec, giving the holder of the right of hypothec a right to execute property to have his claims satisfied. The dowry can therefore be mentioned in the same breath as debt, a con­tract that usually also provided a basis for execution of the property of the debtor if he did not duly repay the borrowed sum. Cotton and Greenfield already noted that wives in Egypt had to register their claims to their husband's estate in the same archives where his rights of owner­ship were registered to warn prospective buyers that the property was encumbered.^[1054] This means that the marriage contract effectively created a lien on the husband's property.^[1055] The Egyptian context of the registra­tion obligation just mentioned already indicates that this effect of the arrangements in the marriage contract was not a special feature of Jew­ish contracts, in fact one can gather that where dowry is an essential part of the marital arrangement repayment of this dowry and surety therefore will be arranged for thoroughly. This is indeed what can be seen in Greek documents from Egypt, in both Aramaic and Greek docu­ments from the Judaean Desert^[1056] and in the Jewish legal sources such as the Mishnah and the Talmud.

It is important to emphasize, however, that there is a feature con­nected with liability that seems to be unique for some of the Jewish doc­uments. As we have seen in P.Yadin 10, the groom did not only oblige himself to repayment of the dowry, but also to maintaining his wife, i.e. feeding and clothing her and giving her her conjugal rights. A cer­tain standard is determined for this; we have seen that this is a Jewish standard in this specific instance. In P.Yadin 18 and P.Hever 65, to be discussed below, we will see that the standard could also be related to another custom or practice. In Greek marriage documents from Egypt it can be explicitly determined that the husband is obliged to maintain his wife ‘according to his means.'^[1057] There are, however, also instances where the husband is said to be liable with all he possesses for the maintenance of his wife. This means that an extra liability is created, comparable to the liability for repayment of the dowry, that rests on the entire property of the husband. Cotton initially noted that this feature is only found in Jewish documents, enumerating four instances: P.Yadin 18, P.Hever 65, XHev/Se Gr. 2 and the much later Ketubba from Cologne.^[1058] Although Cotton later indicated that the clause can also be found in Demotic con­tracts (one of them presenting a close parallel to the clause found in P.Yadin 18),^[1059] it remains remarkable that all three documents containing this clause from the area and period concerned here are Greek docu­ments, not Aramaic ones. It is difficult to determine for these instances from what (legal) source this feature could come and why it was incor­porated in these documents. There is a difference between P.Yadin 18 and P.Hever 65, in that P.Yadin 18 presents the liability clause for main­tenance of the wife, as well as for the repayment of the dowry, while P.Hever 65 only presents us with the first. Since one would assume that liability for repayment of the dowry would be more important than for maintenance the clause probably sees to liability for the dowry as well and is merely loosely (perhaps a bit unfortunately) connected with the previous arrangements.

Babatha’s dispute with Besas

The link with hypothec and surety in general is strengthened by the instance of P.Yadin 23-24. Besas, who represents Judah's heirs, demands that Babatha disclose what right she has to the orchards that are reg­istered in her name. Since Besas denotes that Babatha is holding these properties ‘in possession by force,' it is clear that the matter does not concern property that Babatha owns.^[1060] Besas obviously considers the orchards concerned as the rightful property of the orphans he repre­sents. Since these orphans are the heirs of Babatha's deceased husband, the orchards must concern property that belonged to Judah, but was for some reason registered in Babatha's name. The registration could, as Cotton and Greenfield suggested, refer to registration in public archives of the claim of a wife on her husband's entire property based on the pledging clause in the marriage contract. It could also, as Lewis sug­gested, concern a registration of property the husband bought for the wife during marriage and registered in her name. Ownership reverted to the husband in case of a divorce or to his estate in case of his death.^[1061] Above I indicated that uncertainty about the reason for the registration in Babatha's name might have prompted Besas' summons: in case of reg­istration in the wife's name for the duration of marriage Babatha's rights to the orchards had obviously ended at Judah's death and Besas could register in the orphans' name without any difficulty. However, in case of lien in connection with dowry the heirs would have to pay the dowry first, to have unencumbered property registered in their name.^[1062]

Regarding Babatha's description in P.Yadin 21-22 of her right to sell the crops as being based on her dowry and a debt, we can assume that the registration Besas inquired about was indeed the lien based on the marriage contract. Therefore, we can assume that Babatha could prove her rights by way of the marriage contract.^[1063] As observed above, regis­tration of a lien in favour of the wife on the husband's entire property is known from an Egyptian context.^[1064] This fact proves that liens on prop­erty created by a marriage contract occurred outside a sphere of Jewish law, in documents that were based in other legal systems. Consequently, we have to conclude for the case against Besas that Babatha could have defended her claims with a marriage document that was not necessarily a ketubba.^[1065] Nevertheless, we do have to view the case of P.Yadin 21-22 as a case rooted in Jewish law, not because marriage contracts based in other legal systems would not be able to create a lien on the husband's property, but because the reference to the applicable law in P.Yadin 10 puts this contract within a framework of Jewish law. To put it differently, because P.Yadin 10 declares that the arrangements found there have a basis in Jewish law, the legal acts based on this contract go back on obli­gations acquired on the basis of Jewish law. Therefore, it is not decisive to note that Babatha could have based her claims on Judah's property on a contract drawn up under non-Jewish law as well: the fact is that she is basing them on a contract drawn up under Jewish law, which make her consequent actions actions based on rights acquired on the basis of Jewish law.^[1066]

In P.Yadin 26 it becomes clear that the first wife, Miryam, also con­sidered herself entitled to certain property that belonged to Judah. On what legal act she based her rights is not clear, but Besas might have tried to solve the problem of which wife had claims to what property.^[1067] It is possible he sued Miryam as well: that document would have been in Miryam's archive and could therefore not be known to us.^[1068]

Babatha’s dispute with Miryam

P.Yadin 26 presents us with another court case following the death of Judah, this time between his two wives, Babatha and Miryam. Babatha was the second wife as Judah had a daughter from a previous marriage, Shelamzion. Miryam, who only appears here, was apparently Judah's first wife, and probably the mother of this daughter. Babatha designates Judah as ‘my and your deceased husband.'^[1069] Miryam seems to do the same, but this is not completely certain as part of her statement is dam- aged.^[1070] Whether that dispute implies Judah had divorced Miryam or that he had entered into a bigamous match with Babatha is not clear.^[1071]

Both women claim to have rights to property of the deceased Judah. In the case of Babatha we can assume that these rights were based on her marriage with Judah: Babatha explicitly adduced her marriage contract as the basis for the legal act of sale she made in P.Yadin 21-22. It can be asked what right Miryam can be thought to have had to Judah's prop­erty, as we do not know whether Judah divorced her or not. Katzoff discussed five possibilities when it comes to the claims women could possibly bring: they could be based on intestate succession, testamen­tary succession, succession based on marriage contract, settlements from marriage contract, or simply a misunderstanding concerning per­sonal possessions.^[1072] As I discussed all options in detail in Chapter 4, here I only briefly mention those options that are relevant in the context of a marriage contract.^[1073]

It is rather surprising that Katzoff, in his discussion of the possibility of testamentary succession, did not mention the possibility of a deed of gift. Suppose Judah had made Miryam a gift during their marriage and Miryam now saw herself as entitled to the property concerned in the gift. It might well be that the validity of such a gift was disputed after the husband's death.^[1074] In the case of a wife who was most likely divorced, it could be asked whether the gift could still be valid after a divorce.^[1075] A complication connected with the assumption of a gift is that it is not clear whether the property Babatha alludes to has recently been seized by Miryam or whether she was holding it for a long time, perhaps the entire period after her divorce.^[1076]

Katzoff's third explanation is based on the clause, sometimes found in Greek marriage contracts from Egypt, of mutual succession of the spouses. He notes though that these clauses are not found in the mar­riage contracts from the Judaean Desert (whether Greek or Aramaic). The clause is in any case absent in P.Yadin 10, and it is not found in the Greek marriage contracts P.Yadin 18 and P.Hever 65 either. It therefore seems unlikely that such a clause was behind the present dispute. I also note that it could be disputed whether Miryam could still invoke the clause if she had been divorced by Judah. Since we do not know, how­ever, whether her marriage to Judah should be considered terminated or not, we cannot draw firm conclusions about this.

A clause found in marriage contracts, for example, those from Elephantine, which Kat­zoff does not mention, is a clause determining the consequences of a second marriage, while the first is not terminated yet. The clause is a bit ambiguous since it says that the husband is not allowed to bring in another wife next to the one he is marrying now, but it is at the same time said that if he does so, this will cause the first marriage to end (it will be like a divorce). This would mean that a second marriage would effect divorce. If such a clause had been part of the marriage contract between Miryam and Judah, the clause would probably not have made the match with Babatha invalid, but Miryams own marriage with Judah. Therefore, it does not seem likely she is basing her claims on such a clause.^[1077]

Katzoff suggests as a fourth possibility that Miryam's claim was based on a prior divorce: she might have been promised something which she never received. I think Katzoff is right in remarking here that the claims of the wives in their individual positions, as divorcee and widow, could explain the use of the phrase ‘my and your deceased husband' to refer to Judah. Therefore, we do not necessarily have to accept polygamy behind the conflict.^[1078]

The last possibility Katzoff mentions is that there was a dispute con­cerning what property belonged to which person. He points out that household possessions are often treated as communal by the spouses and then concludes that ‘these sorts of misunderstandings could be enough to account for attempts by each of the former wives to take hold of personal objects leading to the lawsuit in P.Yadin 26.'^[1079]

Katzoff also discussed the question of why, in the latter two cases, Miryam presses her claims after Judah has died, while she could have done so right after the divorce. Fear of Judah or awareness of the weak­ness of her claims could indeed have been a reason, although I think it is more likely to argue, as Katzoff has done himself earlier on in the article, that Miryam held the goods under dispute from the start of her mar­riage, thus that she had never given up on them. Babatha now presses her that she should, even taking the case to court. I argued above that a reason for this could be that Judah's estate did not encompass enough to satisfy Babatha's claims.^[1080]

It seems likely that Babatha tried to get Miryam to give the prop­erty to her, but being unsuccessful in this respect she decided to press charges to have the property given to her.^[1081] She might have resorted to this following the acts of Besas, who summoned Babatha to explain her holding of the orchards belonging to Judah (P.Yadin 23-24). Babatha uses the same strategy: she asks the other party to explain her behaviour, inferring that the grounds for it should be given. Should these grounds be lacking, then the property should be given to the person entitled to it.^[1082]

There are no reasons to assume that Babatha's position was specifi­cally dependent on the Jewish nature of the regulations in her marriage contract: the contract does not contain specific clauses that pertain to conflicting claims after the death of the husband. Nor is there any indi­cation that the conflict of P.Yadin 26 was related to a situation rooted in Jewish law. Therefore, we can assume that Babatha could have pressed the charges against Miryam also if her marriage contract had been drawn up like P.Yadin 18 or P.Hever 65. Of course the same observation made above regarding P.Yadin 21-22 and 23-24 applies here: since P.Yadin 10 determines that the arrangements found there have their basis in Jew­ish law, Babatha's claims based on this marriage contract, such as the ones presumably underlying the case of P.Yadin 26, are claims based on obligations contracted under Jewish law. Therefore, one has to accept that the conflict of P.Yadin 26 has a basis in Jewish law, in any case for as far as Babatha's rights based on her marriage contract of P.Yadin 10 are concerned.

Conclusions

P.Yadin 10 provides us with an early example of a Jewish ketubba, featur­ing the mandatory clauses later codified in Mishnaic law. It is remark­able that, with some restoration, all of these clauses can be found in the document. This seems to indicate that the clauses recorded in the Mish­nah as basic parts of a ketubba were already in use in this set combina­tion in real life practice at the time. Apart from that, other clauses found in the ketubba have a distinct Jewish flavour and can be connected with later regulations in the Mishnah, for example, concerning the provision of food, clothing and the arrangement for the conjugal rights.

The entire contract is put in the light of Jewish law, by declaring that the wife is taken ‘according to the law of Moses and the Judaeans.' ‘Judaeans' should in this context not be read to yield ‘Jews' (or to stand for the more common “Israel”) but as ‘Judaeans,' denoting the specific custom of the Judaeans. That indeed Judaean custom was followed in the document's arrangements can be seen in the maintenance provision: the heirs have to provide maintenance until they have paid the money due to the widow (this in contrast to Galilean custom where the widow was provided with maintenance until she remarried or died). While the reference to ‘the law of Moses and the Judaeans' obviously applies to the entire contract, a separate standard is set for provision for food, clothing and the conjugal rights, speaking of ‘rightful allocation' or ‘allocation that is arranged for by law.' The combination of food, cloth­ing and conjugal rights seems to be specifically Jewish in itself, going back to Exod 21:10. Nevertheless, one cannot understand P.Yadin 10 as evidence for the actual application of Jewish normative law where this specific form of the contract is concerned, since it is obvious that this form of marriage contract was not the only one available at the time. Furthermore, it is clear that the rights a woman had on the basis of such a ketubba were not exclusively connected with the ketubba as such, but can be considered as basic elements of arrangements connected with marriage. To put it differently, it seems that Babatha need not have had a ketubba like this (with this wording, style and contents) to have the same rights she is claiming now. For example liability of the husband for return of the dowry was contracted in Greek marriage contracts as well (such as P.Yadin 18 and P.Hever 65). Consequently, we can argue that Babatha's sale of the dates in P.Yadin 21-22 could have been based on a Greek marriage contract as well. Nevertheless, we should not disregard the meaning of the explicit reference to the applicable law in P.Yadin 10. This reference makes it clear that the liability of the husband con­tracted through this legal deed has its basis in Jewish law (and not in any other law, which also knows this same liability). Consequently, any later acts of the wife-widow that are based on the marriage contract are acts based on rights acquired under Jewish law. This means that one cannot say that Babatha holds the same position as for example a widow from Egypt, but that Babatha here acts on the basis of Jewish law. The example of P.Yadin 10 thus illustrates the importance of references to law for our understanding of the documents' legal context. Even though one can argue that certain elements of contracts can be found in several legal systems, the reference to law places the arrangements in the contract in which this reference occurs firmly within the framework of the law to which the reference refers. Consequently, all legal acts based on this contract are based on rights acquired on the basis of this law. There­fore, to understand the legal context of such a document one need not compare P.Yadin 10 to other contracts, for example from Egypt, to see whether there are common elements, but, in the light of the reference to law in the document itself, should understand the legal arrangements described in P.Yadin 10 as part of Jewish law at the time. This conclu­sion as to P.Yadin 10 is important for understanding the other marriage contracts in the archives, that have been qualified as non-Jewish, and for understanding the development of Jewish law at the time, and the role codification in the Mishnah played in this process.