II. P.Yadin 18: Shelamzion' Document: Jewish vs. Hellenistic? Structure and most important features of P.Yadin 18

As referred to in the discussion of P.Yadin 10,

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.^[1083]

Even a cursory glance at P.Yadin 18, with these features at hand, clarifies that this document cannot be considered a ketubba.

To start with, it is clear that the document does not present an act between groom and bride, but between the father of the bride and the groom. This distinguishes the document from P.Yadin 10 and Jewish ketubbot in general, while it recalls the earlier marriage contracts by Jews from, for example, Elephantine.^[1084]

Furthermore, there is no marriage proposal by the groom, but a state­ment that the father of the bride has given his daughter in marriage to the groom to be his lawful wedded wife. The action is described from the viewpoint of the father of the bride.

In P.Yadin 18 the body of the contract begins with έξέδοτο (lines 33­34) with the bride's father as its subject. This formula, as we know from numerous references in Greek literature and examples in Greek papyri from Egypt, was characteristic of Greek marriage contracts.^[1085]

There is considerable focus on the dowry, its payment and return, in the document, but the way in which this is presented is completely different in wording and style from P.Yadin 10.^[1086]

There are no clauses concerning redemption from captivity or provi­sions for male and female heirs.

There is a statement on liability for return of the dowry, but we have seen above this was not unique for the ketubba.

There is neither a statement on replacement of the contract nor an explicit agreement of the groom to the provisions in the contract. One could argue that the reference to the formal question being asked and answered provides a form of agreement to the deal, but this stipulatio is not a special feature of marriage contracts, but rather a general feature of all kinds of contracts, occurring, for example, also in P.Yadin 17, 20, 21-22.^[1087]

Regarding references to law or a legal context one can immediately note that the phrase ‘according to the law of Moses and the Judaeans’ is conspicuously lacking. Instead we find a general κατά τους νόμους ‘according to the laws.’^[1088] The standard for the lifestyle the husband is to ensure for his wife is defined as έλληνικω νόμω ‘according to Greek custom',^[1089] which seems to present an explicit deviation from the Jew­ish references found in P.Yadin 10. Conjugal rights, by the way, are not mentioned, nor referred to.

We do find liability of the husband for maintenance of his wife with all his possessions, a feature that is found in contemporary Greek mar­riage documents by Jews.^[1090] This feature that connects the document with other documents by Jews seems to contrast with the over all non-Jew- ish impression the document gives. It is any case a completely different document from P.Yadin 10. Lewis suggested that

it is possible, therefore, that we have here in P.Yadin 18 a first evidence of the Hellenizing tendencies of the younger generation of the family.^[1091]

Nevertheless, Lewis noted that the father of the bride in this contract is Judah, the same man who wrote a ketubba in Aramaic for his marriage with Babatha in P.Yadin 10 and added immediately:

But, as Judah followed the Jewish ketubba practice when he took Babatha to wife (P.Yadin 10, in Aramaic), it is altogether likelier that he would have adhered to this tradition in the case of his daughter's marriage.^[1092]

A few lines down, however, Lewis returns to his initial interpretation of the document as altogether different from the marriage document in P.Yadin 10 when he says that

it is also noteworthy that while Babatha's own marriage to Judah only a few years earlier was recorded in an Aramaic ketubbah, this marriage between two members of the younger generation of two rich Jewish families, origi­nally from En Gedi but now living at the southern tip of the Dead Sea, in the Roman province of Arabia, is recorded in Greek and governed in part by Greek rather than Jewish custom.^[1093]

Of course it remains to be questioned what these two facts, the use of the Greek language and the reference to Greek law or custom, mean for the interpretation of the document and its relation to P.Yadin 10, and the Jewish ketubba in general.

Jewish, Hellenistic, or is it?

The article on P.Yadin 18, presenting text, translation and notes by Naphtali Lewis, and the Aramaic subscription by Jonas C. Greenfield, also contains a legal commentary, written by Ranon Katzoff.^[1094] The latter notes ‘the remarkable blend of Roman, Greek and Jewish elements,'^[1095] a feature, one notes, of the entire archive rather than of this document alone. Katzoff distinguishes between these elements by ‘proposing the thesis that although the Roman and Greek are the most obvious superfi­cially, the Jewish elements are in some respects the most fundamental.'^[1096] Having just observed the great discrepancy between P.Yadin 10 and 18 and the obvious lack of much specifically Jewish about P.Yadin 18 one cannot help but be curious how Katzoff will prove his point.

His views were contested by Abraham Wasserstein, in an article that dealt with two distinct issues: the administrative organization in the province of Arabia, and the interpretation of the nature of P.Yadin 18, as a contract concerning Jewish parties but nevertheless written within a wider legal context, as the Greek formulae employed show.^[1097] In this lat­ter instance the document is seen as not only partly governed by Greek custom, but completely subject to ‘Hellenistic' law, understood as the blend of legal traditions in the ancient east. To Wasserstein's objections Katzoff addressed a response in a rejoinder, defending his interpretatio hebraica.^[1098]

Both cases have been argued with zeal and deserve close scrutiny to come to a balanced view of the nature of this document and its relation to other marriage documents (in Aramaic and Greek). For every point under discussion I will present Katzoff's views, Wasserstein's responses, if applicable Katzoff's response from his rejoinder, and then an evalua­tion of the respective views. The references to law in the document's text will be crucial in my discussion, as well as the distinction between sub­stantive and formal law in deciding what system was deemed applicable to this document.

176.

Before the discussion of the various aspects of P.Yadin 18, as a marriage contract (un)comparable to P.Yadin 10, a few words as to the suggestion raised by Wasserstein that P.Yadin 18 was not a marriage contract like P.Yadin 10, but that Judah had a traditional ketubba drawn up for his daughter's marriage, while this Greek document served as an arrange­ment of the financial details of the match. Wasserstein then assumed that a document like P.Yadin 18 was

a further safeguard (additional to the kethubbah) for the pecuniary inter­ests of the bride, enforceable in a non-Jewish secular court. Such an addi­tional safeguard may have been optional or it may even have been required by local law or custom. We have evidence elsewhere in the Roman period of the execution of a religiously sanctioned marriage agreement embody­ing provisions (e.g., pecuniary provisions) in accordance with religiously prescribed practice in addition to another document that had to be regis­tered with secular authority.^[1099]

This statement seems to call for caution in several respects. First of all, even if it would have been practice to have a ketubba drawn up and a document in Greek arranging for financial details of the match, it is not clear that this Greek document was meant to be enforced in a secular court, that is, the court of the Roman governor. We do not have any Greek document related to Babatha's match with Judah, yet it seems that she could adduce evidence based on her marriage contract in the court cases she got caught up in after Judah's death.^[1100] It seems that the provi­sions from the Aramaic ketubba could be the basis for acts by Babatha that would have been recognized by a Roman court. To put it differently, the archive does not provide evidence for the assumption that Aramaic and Greek contracts were meant for different types of courts, especially since the archive only mentions litigation before the court of the Roman governor.^[1101]

Furthermore, it is debatable whether a differentiation between docu­ments of a religious and a secular nature makes any sense in the con­text concerned here.

As we do not have any concrete evidence as to the existence of an Aramaic ketubba for Shelamzions marriage, we should assume that the marriage contract as we have it in P.Yadin 18 was indeed the marriage contract and try to explain for the pronounced differences with P.Yadin 10 from there.

Katzoff begins by listing the Roman elements in the document, which, as I observed above, the document shares with many documents in the archive, for example, consular dating and the use of the stipulatio.^[1103] Kat­zoff does not find these Romanisms surprising as ‘the bridegroom, with a name like Cimber, was presumably a Roman citizen' and ‘it is clear from the other documents in the archive that the family did its court business before the Roman governor in Petra.'^[1104] Katzoff further notes that ‘it is significant that the Romanisms are entirely superficial and do not touch the content of the transaction at all.'^[1105] This is true: to use the legal formulary I applied above, the features (like use of the stipulatio) are formal and not substantive. This means that it is possible to relate them to the Roman court context: a Roman court might demand a number of formal features based on Roman law to be part of the docu­ments used in court cases. However, it is not necessary to relate the use of formal Roman features to possible Roman citizenship of Judah Cim­ber, the groom. After all, these features occur in other documents in the archive where none of the parties is a Roman citizen.

Contrary to the superficial Roman features found by Katzoff, he finds more ‘apparently essential' Roman features conspicuously lacking. The document does not represent a case of tabulae nuptiales, the Roman marriage document, which had, as Katzoff maintains, become custom­ary in Roman law by the second century CE.^[1107] There is no clause present explicitly putting the document under the application of Roman law, such as secundum legem luliam quae de maritandis ordinibus lata est ‘in accordance with the Augustan law on marriage.'^[1108]

Rather, the dominant diplomatics here are Greek. The language is of course Greek, and the document as a whole is part of the Greek tradition of mar­riage documents. Indeed, nearly every phrase in our document appears so frequently in papyri of this type that it would be superfluous to list all parallels. Particularly striking is the similarity of the opening statement of our document to that of one of the earliest Greek documentary papyri (of 311 BCE), P. Elephantine 1 (= M.Chr. 283 = Jur. Pap. 18 = Sel. Pap. I. 1), which most scholars agree presents classical Greek tradition more than any subsequent papyrus.^[1109]

To this point Wasserstein observed:

Katzoff himself remarks that the document stands in the tradition of the Greek marriage contract.... Thus, if this document is what it purports to be, namely a marriage contract, it is certainly not a specifically “Jewish” docu­ment, in the sense of one conforming to the normative Jewish practice of formally registering certain conditions conventionally agreed upon by the parties to a marriage. Nor does it, as Katzoff claims it does, express essen­tially Jewish thinking or “the Jewish context of the document” (p. 240). The document conforms exactly to the pattern of the Greek marriage con­tract as it is known throughout many centuries: ekdosis; dowry (and the groom's acknowledgement of having received it); statement of the duties of proper treatment of wife and children; sanctions envisaged in case of non-fulfilment of obligations. There are no doubt Greek, Roman, and indeed other (e.g., Jewish) elements in this marriage contract. But as a whole, it is simply a document relating to a not untypical local situation which contains, absorbs and reflects a great variety of western (i.e., Greek and Roman) and eastern (Jewish, Nabataean, and other Oriental) ele­ments, some of which have their common origin in very remote antiquity, in some cases as early as the Code of Hammurabi. However, the important and essential point to keep in mind is that in the contract the total situ­ation is called Hellenic. It is important to note that although Roman law was, of course, paramount in the eastern provinces, it existed there not merely as a systematic imitation of legal practice in the rest of the empire. The case made by Mitteis for the long-term survival of local legal forms and institutions in the eastern provinces is too well known to need or bear rehearsing here. Although more recently scholars have criticized and/or refined the conclusions reached by Mitteis, it seems evident that at least until 212 CE local law and custom played an important role in the dispen­sation and administration of justice in the eastern provinces.^[1110]

The question that should be raised within the context of the present study should of course be whether the role of local law and custom can­not be more clearly defined: what was the exact role local law and cus­tom could play within a framework of Roman jurisdiction?

Wasserstein mentions a number of points that make the document fit with a Greek Hellenistic tradition of marriage contracts: ‘ekdosis; dowry (and the groom's acknowledgement of having received it); statement of the duties of proper treatment of wife and children; sanctions envisaged in case of non-fulfilment of obligations.' Katzoff also addressed those points, acknowledging their place in the Greek Hellenistic tradition. The text of P.Yadin 18, he states, connects the handing over of the bride explicitly with the handing over of the dowry: the bride is described as bringing the dowry with her. ‘It thus forms a perfect transition between the two parts of the ekdosis, the giving of the bride and the giving of the dowry.'^[1111] Other elements like the reference to the wife as ‘lawful wife' and a double payment at breach of contract can be found in both P.Yadin 18 and P.Elephantine 1 as well. Terminology for the dowry, though originally taken from the Greek, seems to have been influenced by Roman terminology: Katzoff explains that the use of proix to refer to jewellery and cash money is probably due to the translation of Latin dos with Greek proix.^[1112]

More important than these matters of terminology is the interpreta­tion of the internal evidence for adherence to a certain law. The exedoto formula so widely attested in Greek marriage contracts seems to put the contract within a Greek Hellenistic tradition. There is in any case a clear difference in focus when compared to P.Yadin 10, where the groom addresses the bride and makes her a proposal and promises.

Katzoff explains that in Jewish law the Biblical practice was to have the father of the bride give his daughter to a certain man, thus a handing over of the bride that comes close to what the exedoto formula describes. The Jewish ketubbot, and the regulation for the Jewish ketubba in the Mishnah, show that it was rabbinic practice to have the act conducted between groom and bride, with the groom actually writing the contract for the bride. Katzoff then argues that Biblical practice of ekdosis was maintained in the case of minors and that, if Shelamzion was a minor at the time of her marriage, she might have been married off by her father. The question is of course whether we can assume Shelamzion was a minor at the time of the marriage.

Wasserstein explained that the exedoto formula did not disappear from Egypt and reappear in Judea, like Katzoff argued: it is found in an Egyptian document that is almost contemporary to our text.^[1113] Was­serstein also pointed out that Katzoff himself mentions contemporary documents that contain the formula. Concerning Katzoff's explanation of the exedoto formula from a Jewish point of view, by referring to the Biblical practice of marrying off one's daughter, later continued in the case of minors, Wasserstein argued that there is nothing to indicate that Shelamzion was a minor at the time of the marriage, while information from some documents, for example the gift of P.Yadin 19, strongly sug­gests that this was not the case. I think that in general minority is often too readily adduced to explain deviations in documents, for example, in the case of P.Hever 65. There the continuation of life together has been linked with a marital practice applicable in the case of a minor bride.^[1114] Later finds of documents belonging to this same archive showed that Salome was at the time of her marriage probably not a minor: she had even been married before.^[1115] Consequently, it seems unfounded to relate the use of the exedoto formula in P.Yadin 18 to Jewish marital practice.

On the other hand, it would also not be correct to conclude that the exedoto formula necessarily puts the contract within a Greek Hellenis­tic tradition. In an article on ekdosis in the Judaean Desert documents Yiftach-Firanko argued convincingly that the exedoto formula was used to cover up a pronounced difference between an original marriage con­tract based on ekdosis and the marriage contract as used in the Judaean Desert.^[1116] The original marriage contract based on ekdosis viewed the handing over of the bride as the handing over of the dowry. Because the marriage contract in the Judaean Desert was based on a different kind of financial arrangement, the handing over of the dowry did not neces­sarily include handing over of the bride. Therefore, where the original Greek document could use one and the same mechanism to convey two different things, the Judaean Desert document needs two separate phrases for that. As Yiftach-Firanko phrases it poignantly:

Paradoxically, then, the appearance of the ekdosis-clause of the second- century Judaean Desert may serve as an indication that the marriage recorded in these documents was of non-Greek nature. What we have here is another example of the attempt to formulate in Greek terms and according to the Greek formulaic tradition institutions and customs of non-Greek origin.^[1117]

This means that even if we discard Katzoff's interpretatio hebraica based on presumed minority of the bride, the exedoto clause can still be taken to be evidence of a non-Greek character of the legal act recorded here and thus possibly of an indigenous legal background for the substantive side of the case.

Further internal evidence as to the applicable law can be provided by two references to law/legal context in the document. At first it is said that Shelamzion will be Judah's Cimber's lawful wife ‘for the partnership of marriage according to the laws,' κατά τους νόμους. Katzoff relates this reference to the Jewish formula ‘according to the law of Moses and the Judaeans,' found in P.Yadin 10 and another Aramaic marriage contract from the Judaean Desert.

The Jewish writer of our document thinks at this point a reference to the law is appropriate, and so puts κατά τους νόμους ‘according to the laws,' but since he is writing in Greek for Roman courts, he avoids specifying which laws. ^[1118]

Wasserstein wrote to this point:

The traditional Jewish formula ‘according to the law of Moses and of Israel' (or ‘according to the law of Moses and of the Jews') is absent from our document, while the conventional Greek phrase κατά τους νόμους is found in it (line 39). This is unaccountably taken by Katzoff as evidence for the Jewish character of our document, on the grounds that ‘the Jewish writer of our document thinks at this point a reference to the law is appro­priate, and so puts in κατά τους νόμους “according to the laws”, but since he is writing in Greek for Roman courts, he avoids specifying which laws.' It is hardly necessary to point out that κατά τους νόμους is an ordinary Greek phrase.^[1119]

It seems logical to wonder whether a Jewish writer writing in Greek for Roman courts would not have deemed it necessary to specify the laws he referred to, as these would in such a context not have been obvious. Nevertheless, it is a given fact that in most documents where we find a reference to law, this law is not qualified by an adjective like Jewish, Greek, Roman or the like.^[1120] This suggests that the legal context was con­sidered known, as can also be gathered from expressions like ‘as is befit­ting for...' or ‘as is proper.'^[1121] Seen in this light I think one could argue that ‘according to the laws' could refer to Jewish law, not because of the specific nature of the phrase, but because it put the contract within a known legal tradition.^[1122] That this tradition was local and probably more specifically Jewish law, can be seen in instances like P.Yadin 24 where the explanation of the legal background of the act (the rights Judah's nephews have got to his estate) indicates applicability of Jewish law to the substantive side of the case.

According to Wasserstein, there is a clear indication in the document that the transaction was subjected to Greek law:

And so far from avoiding any mention of specific laws, the groom refers specifically to the έλληννκος νόμος (line 51).^[1123]

However, contrary to Wassersteins interpretation,^[1124] this phrase does not determine the framework of the entire legal act, but only of the mainte­nance clause of which it is a part. One could therefore only go so far as to say that the maintenance arrangements were subjected to ‘Greek law.’^[1125] Furthermore, as Katzoff argued, it is debatable whether νόμος here refers to law; a translation with ‘custom’ seems to be more logical and consis­tent with developments within the use of the word in Greek.^[1126] It is also a matter of speculation whether the expression as it stands, a dative, can denote ‘according to,’ in the sense that would be demanded here. Katzoff is probably right when he argues this is unlikely: after all we have just had κατά τους νόμους in line 39 of the same document. This phrase is clearly meant to convey the meaning of ‘according to the laws.’ Katzoff adds that the lexica give examples of use of the word νόμος with several prepositions, but not as a dative like it is used here.^[1127] This means that έλληνικω νόμω should indeed not be translated as ‘according to Greek law,’ but more like Katzoff suggests ‘in the Hellenic manner’ or ‘in the manner Hellenes consider proper.’ In this interpretation the extent of the phrase should clearly be limited to the maintenance obligation and not be taken to refer to the entire contract.

This explanation of έλληνικω νόμω does not solve all problems, because it can still be asked why a writer of a contract pertaining to a marriage between Jews would want to make part of the contract subject to ‘what the Hellenes consider proper.’ In itself it is not odd that a stan­dard is determined separately, even when the legal context for the entire document is set earlier: we have seen in P.Yadin 10 that the marriage as a whole is said to be conducted ‘according to the law of Moses and the Judaeans,’ while the maintenance is related to a Biblical command­ment and standards ‘as is fitting for a freeborn wife.’ Since the Mish- nah set standards for all three elements contained in the maintenance obligation (food, clothing and conjugal rights), we can infer that the document referred to such generally accepted standards. This would resemble reference to ‘what is proper’ in the Aramaic contracts from the Nabataean Kingdom, discussed in Chapter 2. A reference to what other people deem acceptable like it is written here seems to be a deviation from the principle found earlier.

Furthermore, it is known that in Greek marriage contracts it was not said that the husband would maintain his wife ‘according to Hellenic custom,’ but ‘according to his means.’^[1128] This means that a reference to Greek custom does not stem from the Greek tradition of marriage contracts. Katzoff therefore argues that the explanation of the phrase must come ‘from the Jewish context of the document.’^[1129] Indeed, Jewish marriage contracts can denote that the husband will support the wife ‘according to the custom of Jewish men.’^[1130] Consequently, a reference to what is customary among a certain group of people seems to be con­nected with a Jewish rather than a Greek context. However, the drafter does not say ‘according to the custom of Jewish men,’ but ‘according to Greek/Hellenic custom.’ Katzoff remarks about this:

The Jewish drafter of this document, feeling that a reference to the stan­dard of living of some specific community is required here, translates the thought of ‘according to Jewish custom’ as ‘according to Greek custom.’^[1131]

This is unconvincing: why would a Jewish drafter do this when he could have referred to Jewish standards as well? We know from P.Yadin 10 that phrases of a truly Jewish nature and purport were available. Like Cotton said concerning another phrase in a marriage contract, ‘it is not as though the formula could not be expressed in Greek.’^[1132] It seems that when the drafter wrote Greek, he meant Greek. In his rejoinder Kat­zoff addressed this issue by giving a further explanation of the use of ‘custom' designating an economic standard. The Jewish character of the document would then appear in its desire for objectivity and predict­ability. This means that even though the custom referred to is foreign, the principle to refer to custom and to be specific in general does have a Jewish background.^[1133] Although this argument is quite plausible, a recent article by Hayim Lapin sheds another light on the matter.^[1134]

Lapin addresses the matter of the ‘Greek custom' for maintenance: he argues that it is not self-evident that Jewish law required Jewish men to maintain their families, at least not where daughters were concerned. His discussion shows that the rabbinic sources present different views as to the father's obligation to feed his daughters during his lifetime. Lapin also discusses the obligation to feed one's wife, arguing that under Jew­ish law this obligation stems from the marriage itself (and need not be explicitly articulated in the marriage contract) while in the Greek mar­riage contracts the obligation seems to be related to the dowry. With­out having to go into the details of his survey,^[1135] its importance for the present argument is obvious. P.Yadin 18 presents us with an overall legal framework expressed by κατά τους νόμους and a special reference to a legal background for part of the arrangement, the maintenance obli­gation, expressed with έλληνικω νόμω. As argued above, it is logical to assume that κατά τους νόμους refers to a known legal background, comparable to references to known legal backgrounds in other papyri. As the reference is to the law that determines the substantive side of the cases, and this law is in other instances dealt with in this study local and more specifically Jewish law, we may also assume that it refers to local, Jewish law here. The maintenance clause is explicitly put in another legal framework, that of ‘Greek custom.' In the light of Lapin's observations this could indicate that under Jewish law, without the additional refer­ence to Greek custom, the father would not have been obliged to feed daughters born from the marriage. By adding the reference to Greek custom it is made clear that the husband contracts liability to feed his entire family, including any daughters to be born from the marriage.^[1136]

This interpretation allows for the presence of a reference to ‘Greek cus­tom' in a contract based in Jewish law: the two references are to different legal systems, which are not competitive, but complementary.^[1137]

That the reference to Greek custom recurs in another marriage contract from the same area and period (P.Hever 65, to be discussed below) 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.^[1138] In this context, it is noteworthy that the refer­ence to έλληνικος νόμος is not attested anywhere in the Roman Near East in any language, nor is there ‘a single occurrence of the expression έλληνικος νόμος in all the thousands of published Greek papyri from Egypt.'^[1139] Therefore, a reference to έλληνικος νόμος is specific to these documents by Jews. In the light of Lapin's conclusions about the lack of clarity in Jewish law concerning the maintenance of especially daugh­ters, the inclusion of the clause may therefore very well have been the consequence of the Jewish nature of the contract.

To go back to Katzoff's discussion of P.Yadin 18:

Finally, the most uniquely Jewish (or at any rate, not Greek or Roman) feature is that the husband adds to his wife's dowry. Nothing of this sort appears in Greek papyri before the fourth century CE. In Roman law this is definitely not valid. The Digest contains a passage of Julian to this effect. Later, a constitution of Severus and Caracalla allowed this kind of addi­tion, provided the husband physically gave the dowry addition to the wife and subsequently physically received it back from her. Delivery, not the writing of a document, creates the dowry, remained the rule down to the sixth century. There is some irony in this: after all the trouble taken to make this document superficially acceptable before a Roman court, had the document ever come before a Roman court its provisions might not have been enforced, at least if Roman law was applied. The dowry addi­tion, then, is not Greek or Roman, but it is certainly Jewish. There is an explicit Mishnah requiring just such an addition. This non-Greekness of the dowry arrangement may be what lay behind the idiosyncratic use of prosphora and proix mentioned above.^[1140]

Wasserstein explained that the addition to the dowry estimated by Katzoff as a uniquely Jewish feature, is interpreted differently in dif­ferent Jewish sources, for example, when it comes to the amount.^[1141] More importantly he notes that the addition ‘is primarily reminiscent of the “donatio ante nuptias in dotem redacta.”^[1142] In later sources like, for example, the Syrisch-Roemische Rechtsbuch it is determined that the amount of the donatio is determined by agreement and according to local custom.^[1143] Wasserstein explicitly notes that it is simply not the case that Roman domination had imposed legal uni­formity in such matters in the East; it is therefore supererogatory to ask (Katzoff, p. 242) whether, and in which periods, such a donatio was valid in Roman law.^[1144]

Whether the addition to the dowry is a unique Jewish feature or not is hard to ascertain. Wasserstein is right when he states that it is difficult to determine how strict rules of law were at the time, whether this applies to Mishnaic or Roman law. Wasserstein notes that Roman dominion did not bring legal uniformity to the eastern provinces, which means that all kinds of customs could co-exist. Besides that, the question arises as to whether, even if Roman law would not allow for an addition like this, this would affect a court case like Katzoff thinks it would. In the previous chapters of this study it appeared that the documents were drawn up with Roman formal features in mind, but certainly not with a view to having Roman law applied to them in case of a dispute. Indeed, the internal evidence in the documents shows that they connected the substantive side of the legal act with indigenous law. This means that the internal features of the document, like the donatio, need not corre­spond with external features, like consular dating, use of a stipulatio or of Greek terminology.^[1145]

Indeed, it is only relevant to ask whether a donatio would have been valid in Roman law or not, if we assume that Roman law applied to the substantive side of the cases. Since the evidence presented in previous chapters of this study argues against this, it need not be asked whether the dowry addition would be valid under Roman law, but only whether it would be valid under the law that applies to the substantive side of the case. This law should be derived from references to law in the doc­ument itself. There are two of such references: κατά τους νόμους and έλληνικω νόμω and, as argued above, both refer to a framework of local indigenous law. Therefore, if the dowry addition would have been valid under local law, it would have been accepted by a Roman court (like for example the order of succession presented in P.Yadin 24).

Excursus: was the addition to the dowry provided by the groom or the father of the bride? Upon reading the document for the first time, I had the distinct impression that the addi­tion was not provided by the groom, but by the father of the bride. The previous docu­ment, P.Yadin 17, dated two months before P.Yadin 18, records a depositum, by which Judah the father of the bride borrows three hundred denarii from his wife Babatha. This is the exact sum added to the dowry here. The connection between the legal acts seems obvious: Judah wanted to add a substantial sum to his daughter’s dowry and borrowed the money from Babatha, by way of a deposit construction.^[1146] This would ensure that there was no set time for repayment of the loan, while Babatha would remain entitled to the money and could get it back at any time, but in any case when she would most need it, that is, at Judah’s death. Indeed, we read in P.Yadin 21-22 that Babatha bases her capacity to dispose of crops of orchards that belong to the deceased Judah on her marriage contract and ‘a debt.’^[1147] It is almost inevitable that here the debt of P.Yadin 17 is concerned.^[1148] This interpretation would solve the point of the donation, discussed above: it can be disputed whether a groom was allowed to add to the dowry under Roman law, but the father of the bride could obviously add to the amount of the dowry that was in any case provided by him. Furthermore, this interpretation could even provide a rea­son for the drawing up of this document: it recorded the arrangements pertaining the enlarged dowry. The exedoto formula would then merely explain that the marriage had taken place; ‘lawfully’ would refer to the original marriage indicating that it had been conducted lawfully, perhaps even with a ketubba. I presume it would not have been possible to draw up a second ketubba for this, since the first ketubba was not merely a financial arrangement that could be replaced by a later version if so required.

In this interpretation P.Yadin 18 is not only not a ketubba, but it is not a marriage con­tract in Greek fashion either, but rather a marriage related document, seeing to financial sides of the match that were arranged for at a later stage.

Regarding this interpretation of the addition to the dowry, I was informed that a query was made to Dieter Hagedorn in 1996, proposing that the father of the bride is actually the one supplying the extra three hundred denarii. Hagedorn was of the opinion that the extant Greek does not support this assumption. Therefore, we have to accept that the addition was provided by the groom and have to discuss the legal implications of it in that light.

Katzoff ends his discussion of the document with a suggestion for the origin of the Greek formulas in the document, which has as he claims a Jewish character.

The drafter, I suggest, worked from handbooks of notarial practice. A pro­pos another document from the Babatha archive, Biscardi has collected a considerable body of evidence to suggest that handbooks with formulae or types of documents circulated at this period. Our drafter, then, chose from the models available in those handbooks the clauses with which he could express his essentially Jewish conceptions as to what ought to be a marriage contract in the best Greek form.^[1149]

Wasserstein countered:

It is of course evident that many of the expressions in our documents are identical with, or similar to, expressions known to us from other Greek documents. However, we have no right to assume that substantive provi­sions, constitutive not only of specific obligations but also of the whole legal framework of the contract, should be incorporated into that contract for no reason other than that of arbitrary stylistic choice (exercised by the scribe!) from an unnecessarily hypothesized formulary.^[1150]

Wassersteins argument raises the interesting question of whether the for­mulae used in a document have a mere formulaic value, or whether they, as Wasserstein assumes, are actually ‘substantive provisions, constitutive not only of specific obligations but also of the whole legal framework of the contract.' I agree that when using a fixed formula this formula obviously serves not just to put an obligation into words, but also by being a fixed formula can be seen to be related with the obligation that is being established. I believe the exedoto formula could be such a for­mula, distinguishing the Greek marriage contract (with focus on ekdo- sis) from the Jewish contract (with focus on proposal and promises). I doubt, however, whether one can say that individual provisions can be constitutive for ‘the whole legal framework of the contract.' This prob­ably depends on understanding the nature of a provision and the ques­tion of whether it is exclusive for a certain law or can be found in several systems. I am in any case convinced that Wasserstein is right when he denotes that one cannot maintain that scribes simply copied phrases from books, without investigating what this means for our understand­ing of the legal context of documents.^[1151]

Wasserstein mentions one provision in detail:

We have seen that one such provision is that which establishes the frame­work of law and jurisdiction: έλληνικώ νόμω (line 51); yet Katzoff thinks that the Jewish conception motivating the choice of this formula is “accord­ing to Jewish custom” (pp. 241-242). I submit that this interpretation does not properly take account of the plain meaning of the text before us.^[1152]

Obviously, when the scribe wrote Greek, he meant Greek and the pro­vision should be read like that: ‘in accordance with Greek custom.' Nevertheless, one cannot compare a provision like έλληνικώ νόμω to a formula of a Greek contract like the ekdosis clause. Where one can argue that the ekdosis clause can be indicative of the legal tradition in which the document should be seen, έλληνικώ νόμω is a direct reference to law, not just a formula (especially not in view of the fact as observed by Katzoff that the phrase έλληνικώ νόμω does not appear in Greek mar­riage contracts). Furthermore, it remains to be seen whether this provi­sion is as Wasserstein says a provision ‘which establishes the framework of law and jurisdiction.' It does not refer to the entire contract, but serves to indicate the legal framework for the maintenance clause. In doing so it is a reference to substantive law. If Shelamzion would feel she is not maintained properly, a court would have to investigate what mainte­nance ‘in accordance with Greek custom' would mean and if this kind of maintenance was provided to the wife and children or not. However, jurisdiction has a formal side as well: the question of to what court a person can turn and in what way a case is conducted. Obviously, juris­diction in Arabia was completely in Roman hands: nothing in our docu­ments testifies to the existence of other courts or juridical bodies.^[1153] This means that despite the references to law in the documents, despite the framework they are substantively connected with, a case would always be judged by a Roman court and therefore be subjected to Roman formal demands. It was precisely the discrepancy between what is demanded of a document formally and what is put in it substantively that makes these documents so complicated to understand and connect with concrete laws. This is important to note, as Wasserstein does not seem to make a difference between formal and substantive law, but regards the docu­ment as completely non-Jewish or secular because its formulae come from a Greek tradition. However, this can hardly be maintained in view of for example Yiftach-Firanko’s conclusions to the use of the ekdosis clause: contrary to expectation this need not tie the contract to a Greek- Hellenistic tradition but quite the opposite.

Therefore, one should conclude that the formulae used do not directly indicate to what legal system the document is connected. Rather we should identify the formulae as being parts of either substantive or formal law and then try to determine their meaning for the legal background of the document as a whole. In determining this legal background refer­ences to law should play a crucial part, as they are indicative of the law that is applicable to the substantive side of the case. In P.Yadin 18 both formulae used (such as the ekdosis formula as understood in Yiftach- Firanko's assessment) and the references to law point at adherence to local, more specifically Jewish law. Therefore, P.Yadin 18 is no less a Jew­ish document (in the sense of a document subjected to Jewish substan­tive law) than P.Yadin 10 is, regardless of the pronounced differences between the two.

Conclusions

P.Yadin 18 presents us with a fascinating document, as it seems to con­trast sharply with P.Yadin 10, drawn up by the father of the bride for his own marriage just a few years earlier. Why did Judah marry Babatha in truly Jewish style, with a full-fledged ketubba arranging for the legal details of their match, and did he marry off his daughter with this docu­ment of a completely different nature?

Basically the question seems to come down to what the use of Greek language and diplomatics means for our understanding of the legal con­text of the document. Does a document like P.Yadin 18 connect with a different legal context than, for example, P.Yadin 10? If we assume that P.Yadin 18 is a document additional to a traditional ketubba, as Wasser­stein suggested, the answer would have to be yes. The only way to under­stand why a ketubba would be drawn up and also a Greek document like P.Yadin 18 is to assume that a ketubba and such a Greek document served different purposes, or to put it differently, that a Greek document was needed to reach legal effects a ketubba in itself could not have. Such a conclusion is obviously not supported by the evidence we have from the archive concerning Babatha's ketubba. It seems this ketubba could serve as basis for legal rights and acts without any problem with either the fact that it was written in Aramaic, or based on specifically Jewish law. As observed above, it seems difficult (and most likely anachronistic) to assume that a sort of division into religious and secular documents, enforceable in different contexts, already existed. In addition to this it would be difficult to relate the Aramaic ‘religious' document to a religious court ( jurisdiction) while there is no evidence at all in the archives that there were any kind of local courts that played a part in judging cases. Indeed, it seems that all cases regardless of their nature were judged by the court of the Roman governor. It is in any case my impression of all the documents in the archive that they could have been used in this context. This applies especially to those documents that used the Greek language and adhered to Roman formal features while the law referred to for the substantive side of the cases was obviously indigenous.

In the present case it seems that assuming the presence of a ketubba drawn up prior to our document raises more problems than it solves. On the one hand, it could explain the formula used ‘Judah has given his daughter in marriage... lawfully...' as referring back to the act of having drawn up a ketubba. In that context ‘according to the laws' could refer to Jewish law. However, as noted above, it would be difficult to understand what additional value this document would have, what it could effect that the originally drawn up ketubba could not. It seems safer to assume that there has never been a ketubba and this document was indeed the marriage contract drawn up for Shelamzion's marriage.

From the discussion above it has become clear that although some elements of Katzoff's interpretatio hebraica, such as minority of the bride to explain for the ekdosis, are untenable, there is no reason to state that the document is particularly non-Jewish. The difference with P.Yadin 10 is obvious, but P.Yadin 18 should not just be read against other exam­ples of marriage documents, but be seen in the light of the archive as a whole. Then it can be observed that often the expressions used come close to what we find in Greek documents from Egypt and that the ref­erences to law generally do not use an identifying adjective. What the references to law in the other documents do show, is that documents that use Greek terminology and are adjusted to a Roman court context (for example because they give a stipulatio clause or present a guard­ian of a woman) can refer to local law, where the substantive side of the cases is concerned. There is no reason to assume that this would be different for the marriage contracts. Indeed, P.Yadin 18 testifies to this principle: here we find a marriage document that resembles documents from Egypt, that gives a general reference to the applicable law (κατά τους νόμους) and a more specific indication of what law is applicable to part of the arrangements. If indeed, as Lapin argued, maintenance of daughters was not an uncontested issue in Jewish law at the time, exactly the fact that the document was written against the background of Jew­ish law called for a reference to another custom where this maintenance issue was concerned. The reference to Greek Hellenistic custom is then complementary: it determines for a specific provision in the contract to what custom it adheres, exactly because this custom deviates from the legal framework applicable to the document as a whole. The situation would then be comparable to the situation in documents like P.Yadin 2 and 3 where references to law are made to an unspecified, e.g. generally known, legal context, while deviations are marked by giving an explicit provision. This means that the fact that a reference to Greek Hellenistic custom is found by no means excludes the possibility that this contract is rooted in Jewish law. On the contrary, as Lewis observed, a refer­ence to έλληνικος νόμος is not attested anywhere in the Roman Near East in any language, nor is it found in any of the Greek papyri from Egypt, which strongly suggests that this reference is particular to our documents drawn up by Jews. This makes a direct relationship between the Jewish background of the parties and the use of this clause all the more likely. This means that paradoxically the inclusion of a reference to έλληνικος νόμος actually supports the assumption that the contract as a whole adheres to Jewish (substantive) law.

Likewise Yiftach-Firanko’s study of ekdosis in Greek documents shows that the fact that ekdosis appears in the Greek marriage contracts from the Judaean Desert is not an indication of a Greek Hellenistic background of those contracts, but the opposite: of a local indigenous background. Therefore, it seems safe to conclude that there is no need to oppose P.Yadin 18 to P.Yadin 10, but it is better to view both documents as marriage contracts within a framework of local law. Eventually one of those forms of marriage contracts was accepted as the standard form in Jewish law. In doing so, as Lapin observed, the Mishnah selected from among existing practices to reach the regulations for the marriage con­tract as put down in the tractate Ketubbot.^[1154]