Fraud and Forgery in Old Babylonian Law, in Zeitschrift für Altorientalische und Biblische Rechtsgeschichte

Sonderdruck aus / Electronic Offprint from Zeitschrift für Altorientalische und Biblische Rechtsgeschichte Journal for Ancient Near Eastern and Biblical Law Herausgegeben von Reinhard Achenbach, Hans Neumann und Eckart Otto 22 · 2016 Harrassowitz Verlag · Wiesbaden ZAR erscheint einmal jährlich als refereed journal. Anschriften der Herausgeber: Prof. Dr. Reinhard Achenbach, Westfälische Wilhelms-Universität Münster, Institut für Alttestamentliche Theologie, Evangelisch-Theologische Fakultät, Universitätsstraße 13–17, 48143 Münster, E-Mail: Reinhard.Achenbach@uni-muenster.de Prof. Dr. Hans Neumann, Institut für Altorientalische Philologie und Vorderasiatische Altertumskunde, Universität Münster, Rosenstraße 9, 48143 Münster, E-Mail: neumannh@uni-muenster.de Prof. Dr. Dr. h.c. Eckart Otto (Ludwig-Maximilians-Universität München) Höhen 25, 21635 Jork, E-Mail: Eckart.Otto@t-online.de Beratendes Herausgebergremium: Bob Becking, Joseph Fleishman, Samuel Greengus, Bernard S. Jackson, Michael Jursa, Sophie Lafont, Bernard M. Levinson, Heike Omerzu, Doris Prechel, Karen Radner und David P. Wright Redaktion: Christin Möllenbeck (christin_moellenbeck@gmx.de) Reettakaisa Soia Salo (soia.salo@uni-muenster.de) © Otto Harrassowitz GmbH & Co. KG, Wiesbaden 2017 Die Zeitschrift und alle in ihr enthaltenen Beiträge und Abbildungen sind urheberrechtlich geschützt. Jede Verwertung außerhalb der engen Grenzen des Urheberrechtsgesetzes ist ohne Zustimmung des Verlages unzulässig und strafbar. Das gilt insbesondere für Verviel- fältigungen jeder Art, Übersetzungen, Mikroverilmungen und für die Einspeicherung in elektronische Systeme. Gedruckt auf alterungsbeständigem Papier Druck und Verarbeitung: Memminger MedienCentrum AG Printed in Germany www.harrassowitz-verlag.de ISSN 0948-0587  Inhaltsverzeichnis HOSSEIN BADAMCHI Fraud and Forgery in Old Babylonian Law ................................................................... 1 STEFAN M. MAUL Ein assyrisches Familienarchiv aus dem 14. Jh. v. Chr. und die über 100jährige Geschichte seiner Erforschung ............................................................ 29 MASAMICHI YAMADA RE 6 as a Unique Contract of Caring in Emar .............................................................. 47 NADAV NA’AMAN The Royal Dynasties of Judah and Israel ..................................................................... 59 WALTER J. HOUSTON Doing Justice: The Ideology, Theology and Distribution in the Hebrew Bible of hqdxw fpvm ............................................................................... 75 REINHARD ACHENBACH Lex Sacra and Sabbath in the Pentateuch .................................................................... 101 JONATHAN P. BURNSIDE Why Was Moses Banned From the Promised Land? A Radical Retelling of the Rebellions of Moses (Num 20:2–13 and Exod 2:11–15) ................................... 111 BILL T. ARNOLD Israelite Worship as Envisioned and Prescribed in Deuteronomy 12 ........................... 161 MICHAEL AVIOZ The Law of the Rebellious Son (Deut 21:18–21) according to Josephus .................... 177 RAIK HECKL Ein vollendeter Text für den Surrogat-Tempel. Struktur, Chronologie und Funktion des Pentateuchs im Anschluss an Benno Jacob ..................................... 185 IV Inhaltsverzeichnis DAVID ROTHSTEIN Law, Narrative, and Chronology: Maturity and Adulthood in Jubilees .................................................................................................................... 223 BRUCE WELLS Punishments in the Torah and Their Rationale ........................................................... 245 REZENSIONSAUFSÄTZE BENJAMIN KILCHÖR Priester und Leviten im Alten Testament. Eine kritische Diskussion zweier neuer Monografien ........................................................................ 269 SIMONE PAGANINI Wieviel Synchronie verträgt das Exodusbuch? Oder: Braucht es eine neue Kultur des Kommentierens von biblischen Texten? ................................... ........ 283 DOROTHEA ERBELE-KÜSTER Eine Orientierung im Feld der ethischen Diskurse in und mit dem Alten Testament. Eine Response auf Christian Frevel (Hg.), Mehr als Zehn Worte? ZurBedeutung des Alten Testaments in ethischen Fragen, (QD 273), Freiburg – Basel – Wien (Herder) 2015 ............ ........ 287 REZENSIONEN ANNIK WÜTHRICH Filip Coppens / Jiří Janák / Hana Vymazalová (Hg.), Royal versus Divine Authority Acquisition, Legitimization and Renewal of Power: 7th Symposium on Egyptian Royal Ideology, Prague, June 26–28, 2013 (Königtum, Staat und Gesellschaft früher Hochkulturen 4,4), 2015.................... 295 DOMINIK MARKL Benjamin Kilchör: Mosetora und Jahwetora. Das Verhältnis von Deuteronomium 12–26 zu Exodus, Levitikus und Numeri (BZAR 21), 2015 ............. 300 CHRISTIAN FREVEL Friedhelm Hartenstein / Konrad Schmid (Hg.), Abschied von der Priesterschrift? Zum Stand der Pentateuchdebatte (VWGTh 40), 2015 ....................... 305 Stellenregister ............................................................................................................... 313 Autoren ......................................................................................................................... 319  Fraud and Forgery in Old Babylonian Law Hossein Badamchi (Tehran) A recent comprehensive survey of the ancient Near Eastern law, edited by the late Raymond Westbrook (2003), immediately shows the richness of cuneiform legal sources. It also brings into attention the areas that are yet to be studied. The present study will attempt to study fraud and forgery (i.e., fraud facilitated by forgery) in Old Babylonian law, a much neglected subject that can shed light on the subtleties of crimes against property in the ancient Near East and the (mis-)use of documents. Fraud when it is not accompanied by forgery will be studied in a second paper.1 I.1. In modern law fraud, which will be studied in this paper, is a type of crime against property.2 In fraud the culprit acquires the possession of another person’s property by fraudulent maneuvers. It is different from theft because in fraud the victim is deceived to voluntarily hand over his/her property. Fraud is also different from embezzlement because in the latter the culprit misappropriates another person’s property that is lawfully in his possession. Forgery which is essentially making up false documents will be taken into con- sideration as well. Forgery is usually done as a preparatory step to the commission of some other crimes, most often a crime involving deception (i.e., fraud or embezzlement), which will result in some material advantage (most obviously money or other property transfer- ring) to the forger. Sometimes forgery is also criminalized independently and regardless of whether any other criminal act is realized. In this paper we will collect and study a selection of cases and situations in the cunei- form documents that we would consider fraud and in discussing them we pursue three objectives: first, we will study whether ancient Near Eastern law recognized fraud (if so, what type of fraud) and forgery as criminal actions and subjected them to penal sanctions; second we intend to study the elements or the constituents of these criminal acts and the possibility of formulating a definition based on the cuneiform sources and third, it would be interesting to see if these acts form a separate category in the ancient Near Eastern law. The documents are mainly from the Old Babylonian period, but cuneiform texts from other periods are also taken into consideration for comparative purposes. I.2. The terminology used in the section is of two types (special and general); first, there are special terms: the only special term attested is tāwītum or tā’ītum which means forgery or 1 Acknowledgment: The author is a faculty member in the Department of History, University of Tehran (hbadamchi@ut.ac.ir). I am very grateful to Professors Jerrold S. Cooper, Piotr Streinkeller, Sophie Démare-Lafont and Paul Delnero who all read a previous draft of this paper and offered much help. I remember with gratitude my late professor in Johns Hopkins University, Raymond Westbrook with whom I first read the Edict of Ammisaduqa. 2 For a modern law discussion see Smith and Hogan 2005, 740ff. © Harrassowitz Verlag, Wiesbaden 2017 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. 2 Hossein Badamchi falsification and the verb wu’’ûm means to forge, to falsify. General terms are not limited to fraud and forgery but in legal contexts denote a criminal act in general, and the specific meaning depends on the context; in this category, sarārum means to act dishonestly or falsely; dâsum means to cheat. However, more importantly is the context that demonstrates the criminal aspect of the act. For example, forgery or making up a document is often expressed with šatāru which is a neutral word and simply means to write. Another word pašātu means to erase but the context shows that it refers to partial falsification in a docu- ment. The most important element that shows whether an act is regarded as crime is sanc- tion. Multiple payments or bodily punishments will be considered as determining factors. II.1. In a general classification fraud can be done either through forgery or without forgery. There are two main forms of forgery: in form and in content. Forgery in form can be either total or partial. Total is when the whole document is made up. For example, A makes a debt note to hold B responsible for a payment. Partial forgery is any alteration in an already existing document in order to change the effect of the text. For example, a creditor alters the amount of debt written on a debt note from 2 shekels to 12 shekels. Mesopotamians were aware of the possibility of altering part of a legal document in order to justify a fraudulent claim. The device they invented to prevent this forgery was a clay envelop.3 In order to guarantee the authenticity of legal document the tablet was placed in an envelope of clay on which the entire text of the document itself was repeated, and seals were impressed (Renger 1977, 75f.). Whenever there was a dispute about the content of the document, the unbroken case containing the tablet would have to be taken to the court for investigation. In Old Assyrian this enclosed tablet is called tuppum harmum (CAD s.v. armu; Larsen 1977, 94). This method was not always effective in practice. An Old Babylonian letter records information about a case of forgery in form (AbB 4 15 = TCL 7, 15). A title deed records A as the owner of a certain real estate; B erases the name of A and writes his own name as the owner. Such a forgery is the subject of a case brought before Hammurabi. In AbB 4 15, the Šatammu (a high ranking administrator) had delimited land for Lipit- Ištar, a head soldier. During his absence, a substitute had been hired to take care of Lipit- Ištar’s field, but he had had Lipit-Ištar’s name erased and the field written in his name. This forgery is certainly done in order to falsely claim ownership of the field. The case was proved against the hired substitute, and the king (Hammurabi) gave orders to Šamaš-Hazir to hand over the field to Lipit-Ištar and to send the Šatammu to the king (probably for punishment, if he is involved). Leemans 1968 studied the role of Hammurabi, and by extension the role of the king, in the judicial system. A king could deal with a case presented before him in one of three ways. He tried the case himself and gave final judgment, decided a point of law and 3 Renger (1977, 75) notes that in the first millennium B.C. envelopes were no longer in use: “Instead, two identically worded copies of the contract were issued, sealed and given to the two parties.” Westbrook (1988b, 6) suggests that the use of a case dies out after the reign of Abi-Ešuh. Collon (1997, 18) observes that “Although the use of envelopes declined during the seventeenth century BC, when the tablets themselves began to be sealed, the practice was revived at various periods and some Neo- Assyrian tablets are enclosed in sealed envelopes.” © Harrassowitz Verlag, Wiesbaden 2017 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited.  Fraud and Forgery in Old Babylonian Law 3 referred the case to a royal or local court for a decision on the facts, or referred the case entirely to a royal or local court (see also Dombradi 1996, 215–21). Regarding AbB 4 15, Leemans (1968, 110) observed that “evidently the evidence was produced before the king and he gave the sentence, which Šamaš-Hazir had to execute.” The verb in line 18 is 3rd person plural (ub-ti-ir-ru-šu) and that probably refers to the private party (the plaintiff and his witnesses) who lodged the action and proved the case in the court. It shows the active role of the plaintiff in the procedure.One may ask on whose tablet the forgery was done? There are two possibilities: 1. On the tablet of the absentee, that was probably left in the possession of the substitute; 2. On the tablet of the land recordings of the district; in other words in the public records. The two following texts show that there were such public records: TCL 7 57: 9: “He bought the field, and they recorded it as his subsistence field in the district of PN.” OECT 3 21: 8: “Check to see if that field is recorded in the district of PN in the name of PN2.” Both texts are cited in CAD P, 374 (pilku). II.2. Fraud by forging a will in order to obtain movable property and real estate: A Mesopotamian woman in her old age would normally be taken care of by her husband and/or children (Stol 1998, 85ff.). However, this could not work for the nadītu-women who did not marry and did not have children. Instead these “nuns” could adopt a person (man or woman) as child who would promise to take care of them. In many cases a nadītu adopted a younger nadītu, sometimes her niece, but often unrelated (Harris 1975, 355–57); the nadītu could also adopt a slave (Harris 1975, 347–49). Stol (1998, 97) notes that all examples regarding unmarried women adopting an heir come from the “cloisters” where the childless “nuns” lived. The adopted child would receive a bequest of property at the death of the adoptive mother in return for fulfilling the obligation of support (Harris 1975, 309; Stol 1998, 97–109). The adopted child is aplum/apiltum (inheriting son/daughter) and the prop- erty given to them is aplūtum (inheritance). In CT 2 47, we read about Amat-Šamaš who had no child, and therefore adopted a girl as her daughter and in a testament gave her part of her property consisting of a female slave, real estate and house furniture.4 Amat-Šamaš, daughter of Supapum, was a rich and wealthy “nun”; she appointed four younger “nuns” as daughters and heirs and gave each of them part of her property (Stol 1998, 101, n. 178). This clearly meant to reduce the risk of a breach of contract. The adopted girl in CT 2 47 who was the fourth and last daughter and heir of Amat-Šamaš, daughter of Supapum, is consistently called “the daughter of Sin- eribam” rather than by her own name. Stol (1998, 103) explains that she probably was a young girl and her father was the only name that mattered officially. After the death of Amat-Šamaš, the testator, her brothers who would be her heirs in the absence of the will, claimed against the adopted daughter and accused her of forgery; the statement of the plaintiffs in the court speaks for itself: “They said thus: ‘Amat-Šamaš did not give you anything and she did not write a document for you; but upon her death you wrote it up!’ Thus they spoke.” The act of forgery is expressed by the verb šatārum which simply means “to write” but the contexts shows that it refers to forgery. In this case the 4 The text probably dates from Sin-muballit because Amat-Šamaš lived in this period (Harris 1975, 123). © Harrassowitz Verlag, Wiesbaden 2017 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. 4 Hossein Badamchi adopted daughter had to bring to the court the witnesses before whom the transaction was made. The witnesses were both men and women; fortunately we read that “her male and female witnesses said that while she [i.e., Amat-Šamaš] was alive, she gave the house and wrote the document”. Therefore, the document was confirmed and the accusation was rejected. After this accusation of forgery was rejected, the defendants were ordered not raise such a claim again. In lines 26–28 it is recorded that the judges decided to impose punishment for the false accusation of forgery. Then we read: “A judge threw his garment on him.” Wilcke (1987, 90) suggests that this throwing of the garment over the one due to suffer punishment is an act of mercy that saves the plaintiff from punishment. Throwing the garment may also be interpreted as a punishment, even if it is more humiliating than painful.5 CT 2 47: 29–36 records in detail that the court prohibits the plaintiffs from renewing their claim against the defendant. Not only the two plaintiffs, but also the other brothers of Amat-Šamaš are warned not to sue the adopted girl again. In Lines 35–36, we learn that the reason of extending this warning to the people who are not in the court is that the plaintiffs acted on their behalf. In other words, the absent brothers were legally represented in the court and therefore the court’s decision is binding upon them. In spite of the court’s direct order, we read in another court document, CT 45 18 (Veenker 1974, 9–11), that the same plaintiffs renewed their claim and were rejected again. This time the punishment is harsh and is recorded in detail (CT 45 18: 12–16): aš-šum tup-pa-at la ra-ga-mi-im Because he litigated again after promising šu-zu-bu-ú-ma i-tu-ru-ú-ma not to do so, they will shave off half his ir-gu-mu mu-ut-ta-sú ú-ga-li-bu hair, make a hole in his nose, stretch out ap-pa-šu ip-lu-šu i-di-šu his arms and take him around the city. it-ru-sú uru.ki ú-sa-hi-ru-šu-ma The punishment is clearly of humiliating nature. We also learn from CT 45 18 that the plaintiffs raised claim against all four heirs of Amat-Šamaš regarding the inheritance. We can assume that the claim was similar to the CT 2 47, i.e., questioning the authenticity of the testament. It is worth comparing a Neo-Assyrian letter (KAV 1976), in which we read of the criminal actions of two high ranking officials. The letter writers (from the guild of the oil- pressures) say: “If any oil-presser dies, he [= the corrupt official] writes a forged document which records a debt against him (i.e. the deceased) (ll. 27–28: e-gír-tú ša tup-pi sa-ra-te ina muh-hi-šú i-šá-tar), then he makes claim and takes possession of his house; he then sells his widow.” This is a clear case of forging a document followed by fraudulent legal action based on the forged document to take possession of another man’s property, even his 5 The punishment imposed in CT 2 47 line 28 is not clear. Veenker 1974, 8 suggested the following reading: di.ku5 esír.ra e-li-šu id-di „the judge threw bitumen on him.” For bitumen used in punishment see CAD E, 150 and CAD K, 554b; especially esír.è.a am-ma-am sag.du-sú ik-kap-pár “his head will be smeared with hot bitumen” (TCL 1 237: 23–24). In spite of that, Wilcke 1987, 101–2, reads the line as di.ku5 túg-sú e-li-šu id-di and notes that Veenker’s proposal to read the signs transliterated here as túg- sú as “esír.ra” is ruled out definitely by collation. So we follow Wilcke in our reading. 6 Edited by Postgate 1974, 363–367; See also Fales 1997, for a translation. © Harrassowitz Verlag, Wiesbaden 2017 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited.  Fraud and Forgery in Old Babylonian Law 5 household members! Likewise, the brothers of Amat-Šamaš accused the daughter of Sin- eribam that after the death of their sister the young nadītu forged a testament to fraudulently take possession of the deceased’s property. II.3. Fraud by forging a sale document in order to obtain real estate is the subject of an accusation in another OB trial from Susa. In CT 2 47 we read that the defendant was able to reject the accusation of forgery by bringing the witnesses before whom the transaction had been made. However, having witnesses was not the only way that a person could defend himself against an accusation of forgery. In MDP 24 393, the validity of a sale document has been questioned. The text records that the buyer had purchased a house for “its com- plete price,” which means it was a fair transaction and not subject to redemption. The litiga- tion is in the second generation, between the children of the original contracting parties. The seller’s children, most probably after the death of their father, made a claim against the buyer’s son; the buyer is also dead, as it is understood from the statement of his son in l. 17. The plaintiffs declare in the court as follows (lines 9–10): é.dù.a a-bu-ni a-na a-bi-ka ú-ul id-di-im- Our father did not sell the house to your mi tup-pa-ka ⌈sà⌉-ar-ra-at-mi father. Your document is forged! The text does not say whether the witnesses of the transaction are available. Clearly many years have passed since the original sale was concluded and the seller, the father of the plaintiffs, must be dead. If he was alive there could be no justification for his sons to litigate. If there was any objection he himself should have initiated the litigation. The judges decide to impose an oath on the defendant. Upon performing the oath, he would prove the validity of his tablet and reject the accusation. The defendant successfully took the oath in the temple of Innanna (lines 16–18): at-ta dInnanna lu ti-di O Innanna! You know that I have not tup-pi sà-ar-ti la e-pu-šu made a forged document and my father ù tup-pa an-ni-ta a-bi lu-zi-ba-am-ma indeed left this document for me. The Akkadian sartu means falsehood in general and here qualifies tuppu: false docu- ment. tup-pi sa-ar-ti epēšu (to make a false document) clearly refers to forging a document. The text ends with the names of 34 witnesses which may show the importance of this trial. The 34 witnesses may in fact be the people mentioned lines 11–12, acting as judges and imposing the oath on Iqišuni. Therefore, this trial can be an example of arbitration (S. Lafont 2005). The plaintiffs were forced to accept the judgment, the oath, and the defendant’s ownership of the disputed house. The text does not speak of any punishment for the false accusation of forgery. II.4. Fraud by forgery of seal in order to make false documents: Assyriologists have frequently pointed out that the function of cuneiform legal documents was evidentiary, not dispositive (Renger 1977, 76; Goddeeris 2002, 15). This means that the document only records a legally binding act, but it does not create it. This description, however, does not affect the value of a document from the perspective of procedural law. The evidentiary value of a legal document can be either refutable or irrefutable. In modern law, notarized documents are endowed with irrefutable evidentiary © Harrassowitz Verlag, Wiesbaden 2017 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. 6 Hossein Badamchi value, which means their contents cannot be questioned, by other types of evidence. Petschow (1986, 61) rightly notes that cuneiform legal documents do not have such status. Regarding the forgery of seal we have to first address a preliminary question: was it necessary to forge a seal in order to forge a document? Renger (1977) studied the legal aspects of sealing in ancient Mesopotamia. We draw attention to two of his conclusions (Renger 1977, 79): first is that “sealing was not a mandatory precondition to create a valid legal document.” The second is that, sealing of a tablet by a person “was considered by the society as binding this person to whatever the document was about.” In other words, sealing a legal document was a way to authenticate and to make it valid as an instrument of evi- dence, but it was not the only way. Renger (ibid) notes that there are many legal tablets that bear no seal at all (see also Collon 1997, 17–19). The consequence of this view for our discussion is that a document could be forged either with using a forged seal or without it. Here we will study the fraud by using a forged seal. AbB 11, 90 records a case where someone has denied his seal and the seal of the witnesses who had sealed a legal document. kunukkam baqārum means “to contest a seal” and it clearly refers to questioning the authenticity of the seal. Two partners, Sin-rēmēni and Ibni-Adad, had a dispute between them that ended to a judgment or a settlement. The parties then made a legal document sealed by them and by several witnesses. It is clear that the result was to the favor of Sin- rēmēni because the tablet was given to him. Several years later after the death of Sin- rēmēni, Ibni-Adad denies the settlement and claims that the seals are forged. The letter is written from one of the witnesses (or judges) to another and now it seems that they have to appear in the court to confirm their seals. In another text, TCL 1 157 (Schorr 1913, 393, no. 280), a punishment is imposed on a woman who denied her seal: 47 di.ku5.meš a-wa-ti-šu-nu i-mu-ru-ma The judges decided their case; 48 PN1 nu.gig dumu.sal PN2 and because PN1, the qadištu, the daughter 49 aš-šum na4-kišib-ki-ša ú-ba-aq-qí-ru of PN2, contested her seal, 50 ar-nam i-mi-du-ši they imposed a punishment on her. In Ugarit (RS 16.249) the forgery of the dynastic seal and the subsequent forgery of royal legal documents (namely, titles to property), is called hītu rabû: “the great crime.” RS 16.249 (PRU 3, 96–98):7 15 hi-it-tá gal.meš i-te-ep-[šu] PN 1–3 committed a great crime, 16 na4.kišib mi-hé-er na4.kišib lugal gal they made a seal, a copy of the 17 i-te-ep-šu ù tup-pa-ti great seal of the king, 18 sà-ar-ru-ti i-na lìb-bi and wrote false documents in the center of 19 uru ú-ga-ri-it i-ša-at-tù-ru Ugarit. In this document from Ugarit we read that the culprits committed a great crime, by making a copy of the great seal of the king and writing false tablets in Ugarit. It tells the reason that the culprits forged the royal seal: the forged seal was used to make forged doc- uments. The text continues (in lines 21–22) that the criminals were arrested but the king did 7 Most recently translated in Lackenbacher 2002, 226–227. © Harrassowitz Verlag, Wiesbaden 2017 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited.  Fraud and Forgery in Old Babylonian Law 7 not kill them (lugal la id-du-uk-šu-nu-ti). This shows that the forgery was punishable with death, although the king, perhaps in an act of clemency, decided to send the culprits into exile (Márquez Rowe 2003, 734). G. Boyer in his legal commentary (PRU 3, 283–308), placed great emphasis on the use of royal seal in, among other places, Ugarit’s legal deeds in confirming the validity of the royal donations and especially in preventing any future contestation. This practice obviously invested the transaction with a special solemnity, although other scholars have questioned the necessity of the royal seal in such transactions (Muffs 1992, 152f.). As a rule, the legal documents in ancient Mesopotamia are the records of oral transactions and the documents are written for evidentiary purposes. Leemans (1982, 241) in his detailed research concerning the sealing practices in sale documents, from different Babylonian territorial states, has suggested that for those documents bearing a witness seal, that the documents alone without other evidence, could prove a case only if there was no case against their authenticity. Otherwise, the authenticity and genuineness usually must be proven by the owner of document, i.e. by the buyer of the object, by bringing the contract witnesses (followed by Petschow 1986, 62). We cannot accept this view because in MDP 24 393 we have seen that the authenticity of the document was proven by oath. A document is simply a type of evidence (along with testimony of witnesses, material evidence and confession) and is neither superior nor inferior to other types of evidence. It is the court that in each case decides which evidence is acceptable. The mere fact that documents are forged testifies to the independent evidentiary value of the written records. This explain why the criminal in the above-mentioned Neo-Assyrian text KAV 197, who wanted to fraudulently misappropriate the estate of a deceased, destroyed the adoption tablet of the deceased’s adopted son. In this way, the adopted son who has no evidence to prove his relation to the deceased will not be able to question the fraudulent plaintiff in a court of law. 59 ina é Pap-u-a-su (the corrupt official) entered 60 e-tar-ba ša a-na dumu-u-te iš-šú-šú-u-ni the house of PN and threw the adoption 61 dan-na-su a-na pú ša giš.šar ša Aš-šur document8 of the one whom he had 62 ik-ta-ra-ár adopted (lit. raised to son-ship9), into the wells of Aššur. For the purpose of our study, we may note that whether or not the sealing was an absolute necessity, it is clear that a seal could be used to create deeds of ownership. A seal could create a binding obligation: the legal texts are sealed by the party who undertakes a specific obligation in a given transaction (Steinkeller 1977, 45). That is why we read in several texts that a lost seal has been announced publicly to avoid any consequences. A Sumerian court decision published by Ali 1964, 66–68 is a good example that shows the concern of a seal owner who has lost his seal. The public announcement of the lost seal is to prevent any fraudulent claim against the seal owner. Steinkeller (1977, 48) notes that the text may be related to the genre of the so-called “literary legal decisions,” but he adds that 8 dannatu: valid tablet (CAD D, 90); here it refers to the adoption document. 9 The verb is from našû (after Deller 1987, 185); Postage 1974 and Fales 1997 should be corrected accordingly. © Harrassowitz Verlag, Wiesbaden 2017 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. 8 Hossein Badamchi there are reasons “to believe that this text deals with an actual event which took place in Ur III Nippur” (ibid). The literary nature of the text shows the widespread knowledge of the legal notion involved.10 Here is Ali 1964, 66–68 (Neumann 2004, 17; Kleinerman 2011, 154): 1 kišib mu-sar Ur-dun dam-gàr-ra ú-gu The inscribed seal of Ur-dun, the ba-an-dé merchant, was lost.11 According to the 2 inim-pu-úh-ru-um-ma-ta word of the Assembly, the bailiff blew the 3 niĝir-e sila-sila-a si gù ba-ni-in-ra horn12 in the streets, (so that) no one may 4 lú na-me níg-na-me ugu-na li-bí-in- have any claim against him. tuku PN 1–8 were the witnesses. Another document with similar content from late OB times (published by Klengel 1968) shows the continuity of this idea and the necessity of announcing lost seals. 1 iš-tu iti.zíz.a From the first day of Šabātu (11th month) 2 ud 1 kam the black seal of PN has been lost. 3 na4.kišib-šu gi6 In front of 4 witnesses 4 ša Síl-lí-duraš Date: Ammi-ditana 23, month 11, day 1. 5 ih-li-iq The double dating interestingly shows that the loss has been announced on the same day that the seal was lost or its loss was discovered. The announcement of the lost seal means that afterwards any document certified by the seal is a forgery and will not be binding upon the seal owner. Seals in ancient Mesopotamia, like today, could create obligations and bound people. Therefore, a seal was an attractive target for criminals. Such criminals could either forge a seal and make false document with using the forged seal (RS 16.249); or they could steal or find a seal and make a forged document by using a true seal (understood from Ali 1964 and Klengel 1968). The result would be a forgery in both ways. The topic of false seal is also dealt with in article 18 of the Edict of Ammisadua. The text is fragmentary, but two points are well understood: using a false seal, kunuk la kittim, and that it is punishable with death. We do not know how and for what purpose the false seal was used, but we can reasonably think it is very close to what Bottéro’s reconstruction suggests.13 EA § 18 (Kraus 1984, 180): munus lú kurun2.na ù dam.gàr An ale-wife or a merchant [š]a i-na [k]u-nu-u[k-ki l]a k[i]-it-tim [who uses] a false seal (in order to …) x x x x x x x x x x x i-ma-a-a[t] shall die. 10 Another announcement of a lost seal of non-literary type is published by Hallo 1977, 55. 11 The Sumerian verb is ú-gu dé (halāqum): to disappear, to be lost. 12 “Blowing the horn” is probably to draw people’s attention to the announcement. 13 Bottéro 1992, 180: “The wholesale and retail merchants [who have used] a false seal (in order to certify their “document”), will be put to death”. © Harrassowitz Verlag, Wiesbaden 2017 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited.  Fraud and Forgery in Old Babylonian Law 9 II.5. Forgery of ownership mark (the case of cattle or sheep ownership mark and slave mark): A mark of ownership was a proof of ownership. Therefore, altering the ownership mark was a forgery in form. If one places his own ownership mark on a property that does not belong to him, it is using fraudulent tools to claim property belonging to others. In YOS 8, 1, a shepherd who faced an accusation of stealing sheep, claimed that the sheep in his possession actually belong to him.14 The city elders answered him sarcastically, saying (YOS 8, 1: 25–30): 25 ma-am-[ma-an ši-m]a-at We (i.e., city elders) answered him: 26 Bala-[ĝ u10-nam-hé i]š-ku-un Someone has placed the ownership mark 27 ma-[a]n-nu-u[m s]ipa of Balĝunamhe. What shepherd places the 28 ša u8-udu-hi-a ra-ma-ni-šu ownership mark of the owner of the sheep 29 ši-ma-at be-el u8-udu-hi-a on his own sheep? 15 30 i-ša-ka-nu 31 ki-a-am ni-pu-ul-šu The shepherd refers to his “possession” and applies that as an evidentiary presumption to his ownership. However, for the city elders it is certain that a possessor cannot rely on his possession as an evidentiary assumption when the ownership mark of the sheep belongs to someone else. This explains why the shepherd in CH § 265 had altered the ownership mark of the cattle or sheep in order to misappropriate or sell them. The material element of his crime as described in CH § 265 is a compound one. Altering the ownership mark can be done in two ways: first to make it unintelligible so that it cannot be traced to the owner; second to place a new mark so that he can claim ownership upon selling the animal. The crime of the shepherd in CH § 265 is forgery and embezzlement: He used forgery to embezzle the property that had been given to his care. We also see a case of fraudulent transaction in CH § 265 between the shepherd and the one who purchases the stolen animal from him. The shepherd can sell the stolen animal either by altering the ownership mark, or by claiming that he is the mark holder.16 The ownership mark did not work like a modern title of property through which we get the detailed information, like name and address to identify the owner. It was still possible to identify the owner through it; in case of doubt, it was upon the mark holder to bring witnesses who could identify his mark. This is probably why the shepherd in YOS 8 1 thought that he can claim the sheep in spite of the ownership mark. But Balmunamhe was a well-known business man and even the city elders knew his mark. In a Nuzi text, JEN 672: 40 (cited in CAD Š, III, 10), however, we read that the seller (of the lamb in dispute) was not able to bring witnesses who can identify his ownership mark (lú.meš mudēšu ù ši-in-ta- šu la ubla). 14 Van De Mieroop 1987, 22f.; Wilcke 1992, 72, note 52. 15 CAD R, 304 translates: “Who is the shepherd who marks his own sheep with mark of the sheep’s owner?”. 16 We can also assume a third possibility: that the receiver may be aware of the fact that the cattle are stolen. © Harrassowitz Verlag, Wiesbaden 2017 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. 10 Hossein Badamchi Slaves in Mesopotamia were marked by a mark called abbuttum; it is not clear if this mark was like the ownership mark placed on animals through which one could identify the owner (Driver and Miles 1952, 422), or it was a general sign of slavery.17 In any case, we read of attempts to alter the slave mark of the stolen slaves or fugitives. This forgery was punished most severely. In CH § 226 the barber (gallābum) who alters the slave mark of a slave without proper authorization is penalized by cutting a hand. The barber may commit the forgery on his own initiative, on the request of a fugitive slave or upon the request of the one who abducted the slave. The material act is altering the slave mark of another person’s slave without authoriza- tion and the mental element is the knowledge that the slave belongs to another person. The motive is therefore irrelevant: the material act is simple and neither result nor special intent is required. We observe that this is a unique case where forgery is punished independent from any fraud or other crime. The expression abbuttam gullubum symbolically denotes the act of freeing a slave and abbuttam šakānum means to put a slave mark or to enslave.18 However, in this context abbuttam gullubum means to alter the slave mark either by defacing and shaving off the mark or by putting a new mark. The idea is to conceal the proof of previous ownership. In CH § 227 the situation is different: someone who has abducted a slave deceives (vb. dâsu) the barber to alter the slave mark of a slave that does not belong to him, i.e., to the abductor. The abductor clearly pretends that he is the owner or has proper authorization from the owner. In this case the man who deceives is considered the criminal and suffers two punishments: death penalty and being disposed unburied. Driver and Miles (1952, 424) rightly noticed that the punishment inflicted on the third party (= abductor) consists of death penalty for “stealing” a slave and denial of burial for altering the salve mark. There- fore, the forgery is clearly an aggravating factor for the abduction. We also see a potential case of fraud (by forgery) here: the man probably intends to sell the stolen slave with false slave mark. This will be a case of fraud against the buyer. The deceived barber will be released after taking an oath to confirm that he did not alter the slave mark “knowingly.” The knowledge clearly refers to the criminal intention, i.e., the intention to alter the slave mark of another person’s slave without authorization. The oath formula also provides strong evidence to argue that the criminal intention must be presumed in CH § 226. Here is CH §§ 226–227: 17 The form of the mark is not well understood either. Szlechter (1949, 402) interpreted abbuttum as “tattooing” and translated abbuttam gullubum as “to shave or to remove the tattoo.” This idea was followed by Driver and Miles (1952, 422) based on the comparative insight from NB sources and also because the context of CH §§ 226–227 clearly shows that only a skilled craftsman could remove the mark (and probably to put it as well). However, as E. Reiner (2004, 480) notes, the ‘mainline’ Assyriologists ignored this view. The word abbuttum is translated in CAD as “a characteristic hairstyle of slaves”, in AHW as “eine Haartracht” and in Roth 1997 as “slave hairlock.” Reiner (ibid) recently refers to the comparative material from Greco-Roman antiquity and the NB sources, newly studied by Stolper 1998, and suggests that Szlechter’s interpretation should be taken more seriously. 18 Snell (2001, 81) referring to CH § 226 notes that although “the owner could allow the removal of the mark, but we do not know why one would do so except at the time of manumission.” The answer is cer- tainly fraud! © Harrassowitz Verlag, Wiesbaden 2017 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited.  Fraud and Forgery in Old Babylonian Law 11 šum-ma šu.i If a barber, without the permission of the ba-lum be-el ìr slave’s owner, ab-bu-ti ìr la še-e-em shaves off the slave mark of a slave u-gal-li-ib kišib.lá šu.i šu-a-ti not belonging to him, they shall cut off the i-na-ak-ki-sú hand of that barber. šum-ma a-wi-lum If a man cheats (vb. dâsu) the barber, šu.i i-da-as-ma so that he shaves off the slave mark of a ab-bu-ti ìr la še-e-em ug-da-al-li-ib slave not belonging to him, a-wi-lam šu-a-ti i-du-uk-uk-šu-ma they shall kill that man i-na ká-šu i-ha-al-la-lu-šu and hang him in front of his own door; šu.i i-na i-du-ú the barber shall take the oath: la ú-gal-li-bu i-tam-ma-ma “I did not knowingly shave,” ú-ta-aš-šar and then he shall be released. II.6. Fraud by forging measurement tools: Measures, such as weights, were used in ancient law mainly for two proposes, first to determine the amount of the price of a given lot, and second to separate the object of sale or loan from a larger bulk. The forgery of measurement instruments like stone weights, capacity measurement tools and scales are dealt in details in several cuneiform texts that will be studied presently (for the problem of false measures in the Roman law of sale, see Stein 1955). Weight stones could be forged because they were used as criteria of evaluation. These forged stones were used in order to gain financial profit in an act of fraud. The first text, CH § P, is fragmentary but the reconstruction is very convicting (after Borger 2006, § 73+e). CH § P (Finet 2002: 75, article P): šum-ma dam.gàr še-am ù If a merchant gives a loan of barley or kù.babbar-am a-na silver, hu-bu-ul-li-im id-di-in-ma (if) when he gives the loan i-nu-ma a-na ur5.ra id-di-nu he measures the silver with small stone kù.babbar-am i-[na] weights and measures the barley with ab-ni-im ma-ti-ti[m] ù še-am i-na gišbán small ma-ti-tim id-di-in measurements of capacity ù i-nu-ma im-hu-ru kù.babbar-am [i]-na (or) when he receives (a payment) ab-ni-im [ra-bi-tim] he measures the silver with heavy stone še-a[m i-na gišbán ra-bi-tim] weights and measures the barley with large im-hu-ur dam.gàr šu-ú capacity measurements, i-na m[i-im-ma ša id-di-nu (?)] i-[te-el-li] that merchant will forfeit whatever he gave. The creditor (tamkārum) uses two different standards in giving a loan and receiving a payment: 1.1. In giving a loan of barley: he uses small measurements of capacity. 1.2. In giving a loan of silver: he uses small (or light) stone weights. © Harrassowitz Verlag, Wiesbaden 2017 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. 12 Hossein Badamchi 2.1. In receiving a payment in barley: he uses large measurements of capacity. 2.2. In receiving a payment in silver: he uses large (or heavy) stone weights. The first question is regarding the meaning of ‘large’ and ‘small’ which can either refer to the use of false weights and measures or to an abuse of a dual system of weights and measures. Driver and Miles (1952, 181) rightly note (with caution) that “the evidence is in favor of supposing that the merchant uses weights lighter or heavier than the standards that he professes to use.” The same view applies to the capacity measures (see our justification below). The second question is whether the material element is simple or complex.19 If it is simple, the crime will be considered complete if any of the acts described above have been done. If it is complex, two acts, one of giving and the other of receiving, should be proven. It seems that the material act is simple because in each case there is an element of harm and the debtor is deprived of his property. The punishment is that the creditor will forfeit the original loan that he gave. Considering that the amount that the fraudulent creditor could misappropriate in this way is only a small portion of the loan, forfeiting whatever he gives is clearly of penal character. The oldest attestation of crimes involving measurement tools comes from Iri-kagina’s reform text in which the king records that he issued a debt release decree; the decree also covers the criminals who are in debt slavery because they have been unable to pay the rele- vant penalties. Frayne 2008, 264: xii 13–22: 13 dumu-lagaš.KI As for the citizens of Lagaš – 14 ur5-ra ti-la the one living in debt, 15 gur-gub-ba the one who had set up (a false) gur 16 še-si-ga measure, 17 níg-zuh-a the one who had (fraudulently) filled up 18 saĝ-ĝiš-ra-a the (legal) gur measure with barley, 19 é-ÉŠ-bi the thief,20 20 e-luh the murderer, 21 ama-gi4-bi he cleaned the prison (of them) 22 e-ĝar and established their freedom. The edict cancels the debt caused by two alternative forms of fraud: the falsification of measures and improper weighing and measuring (Steinkeller 1991, 232, note 27). The text demonstrates that from this early time fraud with measurement tools was known and that it was regarded as crime and punishable by law. It interestingly records both fraud and theft that may mean fraud and theft were regarded as separate categories. In a second millennium literary work, called Šamaš Hymn,21 different types of fraudu- lent maneuvers used by merchants are described; honest and dishonest merchants are 19 Driver and Miles (1952, 180) note that the conjunction in l. 19 is equivocal and may be either copulative or disjunctive. 20 After Steinkeller 1991, 232: the one who stole things. 21 The last edition is Lambert 1960, 121–138; it was most recently translated in Foster 2005, 627–635, with previous literature listed in p. 635. © Harrassowitz Verlag, Wiesbaden 2017 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited.  Fraud and Forgery in Old Babylonian Law 13 compared to each other. One is loved by Šamaš and other is not. The dishonest merchant is characterized as follows (lines 107–114): He commits fraud when he holds the balances, he substitutes the stone weights in the bag, thus lowers the … … The merchant who practices trickery as he holds the capacity measure, (the merchant) who lends by medium measure (but) collects by large ones. “The one who substitutes the stone weights in the bag” in l. 108 seems to refer to the question of small and large stone weights already attested in CH § P. We can again ask if it refers to false weights above or below the standard (Driver and Miles 1952, 183) or the reference is to fraud based on double standard. Foster (2005, 631, note 1) thinks that the merchant “buys with heavy standard and pays back with a light one, taking advantage of varying local standards of weights.” First, we should note that in both possibilities, it is a case of fraud; because the buyer is not aware that the seller is using the wrong weights, and therefore, he is cheated: the buyer (i.e., the victim of the fraud) gives more when he gives and receives less, when he receives. Second, the fact that the Mesopotamian sources show numerous examples of determining the type of the measurement (like the measurement of Šamaš or of the palace),22 makes it less probable that a seller could easily cheat the buyer by simply taking advantage of local differences. The idea is that the seller is using a measurement other than the agreed one or the conventional and this is hidden from the buyer. The other text that is relevant to our subject is Šurpu (Reiner 1958; Borger 2000). This text lists the sins that a person may have committed and consequently being afflicted by gods for those sins. So in order to find relief of the affliction the person has to name the sins one by one and perform the ritual purification. In the list of the spells to release the man from the curses arising from the offences committed we read the following: Šurpu 8, 64–67 (Reiner 1958; Borger 2000, 87): 64 ki ma-mit ina gišbán tur-ti Together with the “oath”23 of giving with na-da-nu ina 1 gišbán gal-i ti-e a small capacity measure, but taking with 65 ki ma-mit ina 1 gín tur na-da-nu a large capacity measure. ina 1 gín gal-i ti-e Giving with a small shekel-weight 66 ki ma-mit ina 1 ma.na tur but taking with a large shekel-weight. na-da-nu ina 1 ma.na gal-i ti-e Giving with a small mina-weight 67 ki ma-mit gišzi-ba-nit la ket-ti but taking with a large mina-weight. sa-ba-tú kù.babbar la ket-ti Using am untrue balance24 (or/and) ta-mu-u ti-e taking untrue silver and swearing (it was right). 22 See the references in CAD S, 422f. 23 Oath is the first meaning of the word māmītu, but in this case, as Reiner 1958, 55 noticed, it means something evil which was feared; a curse caused by the sin. 24 The case of fraudulent manipulation of the scale is also mentioned in Šurpu 2, 42: giš zi-ba-nit la ket-ti is-[sa-bat] He used an untrue balance, giš zi-ba-nit ket-ti ul] [is]-[b]at he did not use a true balance. © Harrassowitz Verlag, Wiesbaden 2017 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. 14 Hossein Badamchi In Šamaš Hymn and Šurpu, quoted above, we also read of fraud in handling a scale or a capacity measurement. gišzibānīt la kitti sabātu and gišzibānīta sabātu silipta epēšu clearly refer to two types of fraud, one by using false scale that has been manipulated and the other by fraud in handling a normal scale. Furthermore, sūta sabātu silipta epēšu in comparison to the small and large capacity measures (ina sūtim matītim (gišbán.tur) nadānum, ina sūtim rabītim (gišbán.gal) mahārum) confirms our understanding that the latter refers to false measures and the former to fraud in handling normal measuring tools. In the light of the relatively complete view of the subject we now turn to study another important text, CH § 108. However, CH § 108 is very complicated and its interpretation is difficult. According to Driver and Miles (1952, 202) only two points are certain: “first, the offence is connected with the manner in which the ale-wife obtains payment for her beer; and, second, the penalty for her offence or offences is death by drowning.” Roth (1999, 464) describes the crime of the taverness25 as “devaluing beer”; Roth (1999, 460) adds that the offence involves “taking advantage of seasonal price fluctuations and of those economically unable to weather them.” Westbrook (2003, 422) notes: “LH 108 condemns to drowning a taverness who used heavier weights to increase the amount of grain that her customers paid for beer.”: šum-ma mí.kurun.na a-na šám kaš še If a taverness (sābītum) does not accept la im-ta-har barley for the price of beer, i-na na4 ra-bi-tim kù.babbar im-ta-har ù (the translation of these lines comes after ganba kaš a-na ganba še um-ta-ti the discussion) mí.kurun.na šu-a-ti ú-ka-an-nu-ši-ma They shall prove the case against that a-na me-e i-na-ad-du-ú-ši taverness and they shall cast her into the water. Driver and Miles (1952, 202ff.) raised the possibility that CH § 108 may deal with two crimes in one section: one crime is refusing to accept barley as the price of beer and the second is that the woman “has overcharged her customers in grain for the beer supplied” (ibid, 203). Finet (2002, 79) has followed this interpretation and offered the following translation of CH § 108 (with my translation): 25 ‘Ale-wife’ (Driver and Miles 1952, 202), ‘woman innkeeper’ (Roth 1997), ‘tapster’ (Roth 1999), ‘taverness’ (Westbrook 2003), are all words to translate sābītum. She is a woman who runs a tavern or as proprietor and/or works as bartender or barmaid. Male or female tapsters are known in cuneiform text (Roth 1999, 448). Roth 1999, 446 notes that there is no reason to assume that the premises of these women served as ‘inns’ to accommodate overnight guest; therefore Roth (ibid) admits that ‘woman inn- keeper’ is not a good translation. See also Assante 2002, 31. Finet (2002, 79) notes that the cabaret is not only a bar; it is also small store of retail sale, like so often still current in the Turkish boroughs. © Harrassowitz Verlag, Wiesbaden 2017 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited.  Fraud and Forgery in Old Babylonian Law 15 Si une cabaretière n’a pas voulu recevoir If a taverness does not want to receive d’orge en paiement de bière (mais) a voulu barley as the price of beer, (but) wants to recevoir de l’argent au grand poids, ou (si) receive silver with large weights, or (if) elle a réduit la quantité de bière par rapport she reduced the quantity of beer compared à la quantité d’orge, cette cabaretière on la to the quantity of barley, that taverness convaincra et on la jettera à l’eau. shall be convicted and be thrown into the water. According to Finet (ibid) the first crime is that she refuses the payment in barley and asks/requires a payment of silver at the highest market rate.26And the second crime is that the taverness does not provide sufficient beer for the price that she demands in barley.27 Finet’s understanding of “large/heavy stone weights” as “au plus haut cours” is not convincing, especially in view of the Mesopotamian sources that we already studied in this chapter (CH § P, Šamaš Hymn, and Šurpu). Driver and Miles (1952, 202) say: “The back- ground of § 108, as of many other sections, is unknown and the circumstances which the lawgiver desires to regulate can only be deduced by an effort of imagination from the concise and obscure wording of the text”. If we follow this guidance, there are several possibilities imaginable in the case described in CH § 108: 1. If the taverness measures both the purchase price and the commodity (beer) by using the heavier stone weights, there would be no problem: she sells more beer for more barley. 2. If the taverness receives the barley by capacity measure and gives the beer with heavier weights: there would no problem; it is in fact to the benefit of the customer who receives more beer. 3. If the seller receives the barley with heavier weights and gives the beer with capacity measurement, the buyer is cheated. But this may cause a problem because the seller uses the weight measurement for purchase price and capacity measurement for the sold item. It may make the buyer suspicious. It also does not fit the Mesopotamian convention that barley and beer are measured by capacity measurements and silver by weight. 4. Considering the fact that beer and barely are usually measured by capacity measure- ments, and considering the beginning of the section 108, we suggest that the taverness first refused to accept barley and demanded silver for the purchase price. She then measured the silver by heavier stone weights to get more silver. Then she delivers the beer by capacity measurement. So she has reduced the equivalent amount of beer given for the currency (grain or silver). The material element of the crime is simple: it is to use the heavier stone weights to measure the silver. The fact that the taverness first refused to accept the barley and demanded silver as the price of her beer may be immaterial. Had the buyer initially offered silver, the taverness’ crime would have been the same. The beer too is a typical commodity (a very important one in Mesopotamia) and should be attributed to casuistic nature of our source (namely the Laws of Hammurabi). So CH § 108 reads: 26 “Elle refuse le paiement en orge et exige le paiement en argent au plus haut cours”. 27 “C’est-à-dire, si elle ne fournit pas suffisamment de bière pour le prix qu’elle demande en orge”. © Harrassowitz Verlag, Wiesbaden 2017 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. 16 Hossein Badamchi If a taverness does not accept barley for the price of beer, and receives silver based on heavy stone weights (i.e., heavier than the standard), so reduces the equivalent amount of beer given for the barley (i.e., currency), they shall prove the case against that taverness, and they shall cast her into water. III. 1. Fraud with forgery in content: falsification of a debt document: Forgery in content is more complicated and more difficult to discover because the document is composed by those who in fact have the power to do so. But the composition is based on false assertions. For example, in a sale contract the scribe is bribed to write down the purchase price less than what the contracting parties have agreed on. The seller will seal the contract, but he is unaware that his document contains false information. We witness a case of forgery in content in the Edict of Ammisaduqa §§ 5–6 (Kraus 1984): § 5, A Rs. 12–20, B II 20–22 12 ša še-a[m] ù kù.babbar-am a-na HI.ra Whoever has lent barley or silver mᚠto an Akkadian or an Amorite at interest or 13 ù me-el-qé-tim a-na lú ak-ka-di-i as a melqētum-loan, 14 ù lú a-mu-ur-ri-i id-di-nu-ma (but) in the document which he made out 15 i-na ka-ni-ki-šu ša ú-še-zi-bu has made a falsification by having it drawn 16 ta-i-tam ú-wa-i-ma a-na ši-mi-im up as a purchase-price or a deposit, and he 17 ù ma-as-sa-ar-tim ú-ša-aš-te4-ru (i.e., creditor) has taken interest, he (i.e., 18 ù mᚠil-te-eq-qú-ú lú.meš ši-bi-šu debtor) shall bring his witnesses and shall 19 ú-ub-ba-lu-nim i-na mᚠle-qé-e prove that he took interest. Because he has ú-ba-a[r-ru-šu] falsified his document, his document is 20 aš-šum ka-ni-ik-šu ú-wu-ú [invalid]. ka-ni-i[k-šu he-pí]28 § 6, A Rs. 21–24; B II 23–26 21 lú qá-ia-pa-nu-um a-na é lú ak-ka-di-i The creditor (qayipānum) may not claim 22 ù lú a-mu-ur-ri-i ša i-qí-pu-šu against the Akkadian or the Amorite for 23 ú-ul i-ša-ás-si whatever he has lent him. If he claims, he 24 i-ša-ás-sí-ma i-ma-a-at shall die. Article 5–6 of the Edict of Ammisaduqa involves a case of fraud by forgery in content: the forged document is used to unjustly obtain property. The assumption is that someone has given the private consumer an interest bearing loan of barley or silver. The phrase ana melqētim nadānum is not clear;29 but we understand from the text that melqētum is a type of interest bearing loan and therefore covered by the edict. However, the creditor drew up a sale document30 or a deposit document for the debtor (instead of a proper document of 28 Or: ihheppi, as suggested by Finkelstein 1969, 49, followed in CAD T, 301. 29 According to Greengus (1986, 43f.) melqētum appears to be a kind of “journal entry” loan, administra- tive in origin, not necessarily for interest. See also Greengus 1988, 155. This idea is speculative. 30 Kraus 1984, 205 rightly calls it “Pränumerationskauf” which is sale with payment in advance. © Harrassowitz Verlag, Wiesbaden 2017 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited.  Fraud and Forgery in Old Babylonian Law 17 loan). This act is described as falsification or forgery in content (tāwītum).31 von Soden (AHW) translates wu’’ûm as “fälschen” (to falsify, forge) in p. 1303 and as “falsch kennzeichnen” in p. 1498. The latter expression actually describes the creditor’s act that ‘falsely characterized’ a loan document as a sale or a deposit document. As Kraus (1984, 205) noted, the details of the process are not clear. Kraus (ibid) comments that we do not know whether the creditor was required to write the document or whether it was considered the obligation of the debtor. The writing of a document was not obligatory in ancient law but it was an option that the parties had to use a tablet as an instrument of evidence (Renger 1977, 75–76); the loan document is drafted in order to know the amount to be repaid and the time that the payment is due. We do not know whether the debtor was informed of the creditor’s plans. Kraus (1984, 205) noted that the actual process can be imagined to be one of the following possibilities: 1. The creditor may have deceived the debtor, perhaps by bribing the scribe. 2. By assuming the debtor’s knowledge and his agreement under duress who could only receive the loan under these circumstances. The strategy of the creditor, to have a document of sale or deposit issued for loan, can only serve for the purpose of evading the debt cancellation decree. Article 3 of the Edict formulates a general (but retroactive) law regarding the debt cancellation that cancels all interest bearing loans: Whoever has lent barley or silver to an Akkadian or an Amorite at interest (sibtum) or as a melqētum-loan and has had a tablet drafted – because the king has established equity (mīšarum) for the land, his tablet is broken. He shall not collect the barley or silver according to the tablet. This general law however, has exemptions.32 Article 8 excludes several types of loans from the Edict: An Akkadian or an Amorite who has received barley, silver or goods (bīšum) as a purchase-price, for a business journey (harrānum), for partnership (tappûtum) or a trading venture (tadmiqtum), his tablet shall not be broken. He shall pay according to his contract. Now it becomes clear why the fraudulent creditor attempted to formulate his loan under false titles. Because the transaction ana šīmim nadānum is specifically exempted from the debt cancellation decree in paragraph 8 of the Edict, and because of the nature of a deposit document, the debt cancellation did not apply to it. The reason for forgery of the document could only be the anticipation of a debt cancellation decree for consumption loans. 31 tāwītum or tā’ītum: forgery, falsification; following Finkelstein (1969, 52) we take tāwītum from wu’’ûm (to forge, to falsify) rather than from any verb meaning “to become” (ewûm) or “to speak” (awûm); see also AHW (p. 1498), CAD (T, p. 302) and Hallo 2002. On the contrary, Kraus (1979, 141) takes the verb from ewûm (werden zu), translating uwwûm as “machen zu.” 32 In Van de Mieroop’s words: “those who took loans out of need were freed from repayment, while those borrowed for commercial enterprise were bound by contract” (1992, 118). © Harrassowitz Verlag, Wiesbaden 2017 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. 18 Hossein Badamchi If A Rs. 20 (article 5) is reconstructed correctly and as Kraus (ibid) rightly notes, there is no reason to doubt it, the creditor who attempted to protect himself, from the conse- quences of a debt cancellation decree, cannot benefit from his attempt; because article 5 prescribes that his document is broken (or shall be broken), which means it is void and the debt is not collectable. This has caused great difficulty for Kraus (1984, 205–206). He rightly noticed that the cautious creditor loses the loan in the same way as all the other creditors who issued proper loan document. However, he is not punished. Kraus (1984, 206) thinks that the strategy of the clever creditor did not lead to the desired results because he does not want to give up the interest, which the loan should bring him. Kraus assumes that if the creditor, after proclamation of the debt cancellation decree, was content with the original debt and had not attempted to collect interest, he could save his capital. However, for the transaction that the creditor has inserted in his forged document, in line 17, namely advance payment (in a sale contract) or deposit contract, there is no interest to be paid. Kraus (1984, 206) says it is not clear how one has to imagine the action which is described as “they bring witnesses against him and convict him of taking interest.” Kraus (1984, 206) says that he does not understand the iterative33 (Gtn) in ù sibtam (máš) il-te-eq- qú-ú, in A Rs. 18. Kraus notes (1984, 205) that the iterative ilteqqu is “unerklärlich” for him34; the reason is that for interest loans the interest is only paid once, that is to say at the time of the return. In other words, paying interest in installments is unknown. Therefore, Kraus (1984, 206) asks when has the conviction (i.e., convicting the fraudulent creditor) taken place? It is surely after the edict was issued. Kraus thinks that prior to the decree nothing would have stopped the return of the loan with interest. There is a question, however: how could the creditor claim interest on his debt, if the document that he had is a sale or deposit document? This is a question that Kraus does not take into consideration. Regarding the question of how the conviction took place, Kraus poses two possibilities: 1. That the creditor was convicted only after the interest was paid. Kraus 1984, 206, notes that in this case one would expect information about the return of the interest which the text does not give us. 2. Does that mean during the interest payment? Kraus 1984, 206, notes that this would require preparation to catch the creditor red handed (en flagrant délit), and that he does not know whether such an action was possible, or ever heard of. Kraus (ibid.) says that in any case, as the reasoning of the judgment in A Rs. 20 shows, it was proof of its falsification which led to the breaking of the document, i.e. cancellation of the debt by the decree without recompense. Kraus poses a meaningful question: in this case one may ask why the creditor put the capital and the interest at risk and was not satis- fied with the return of the capital without interest, if he could request this according to his document without risk. 33 A verb aspect expressing repetition of an action. 34 Kraus (1984, 173) translates the verb as: “[er hat] regelmäßig Zinsen genommen”; Finkelstein (1969b, 50): “[the creditor] continued to receive interest”; Finkelstein (1969a, 527): “[the creditor] persisted in taking interest”; Hallo (2000, 263): “and [the creditor] has thus misappropriated interest.” © Harrassowitz Verlag, Wiesbaden 2017 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited.  Fraud and Forgery in Old Babylonian Law 19 The answer is that the creditor could not save his capital after the decree was issued. Kraus causes himself unnecessary difficulties. A creditor in anticipation of a forthcoming debt-release decree (the opening paragraphs of the decree show that the old king took some time to die, leading to speculation about the decree that the new king would traditionally promulgate) styles his loan as a sale or deposit. Proof that it is neither is that he took interest; it is not clear how the creditor took the interest. Finkelstein (1969, 50) suggested that he continued to take interest (in installments, hence the Gtn). But there are two reasons to reject this suggestion: first is that, as Kraus mentioned, payment of interest in install- ments is unknown in the ancient Near Eastern law. Second and the more important one is that how the creditor could force the debtor to pay interest, if all he has is a sale or deposit document? So we suggest35 that the interest had been already added to the capital mentioned in the document in the time when the loan contract was concluded; this is probably the meaning of the not well understood clause in CH gap w36 (Roth 1997, 98): ulû sibātim ana qaqqadim (sag.du) utehhi: “or if he adds37 the interest to the capital.” There are two methods of dis- guising the fact that the interest has been already added to the capital: first, the creditor can deduct the interest from the capital in the beginning. In the second method, the lender adds the interest to the principal and then converts the loan into a fictitious but permissible obli- gation by which he can collect both interest and the capital when the due date comes.38 In both ways, the actual loan will be less than the number written on the document. The first method, however, is more likely because one can say that the lender “has taken his interest.” All this happened before the decree. After the decree, the creditor can simply forget the collection of his loan and save his life. If nevertheless, he initiates an action to collect his debt, as he had planned, he may fall under the crime stipulated in EA § 6. We suggest that the material element of the crime described in EA §§ 5–6 is a complex one: having drafted a false document and claiming the debt based on it. So the material element is complete once the creditor initiates the false claim either through court or by self-help. Kraus (1984, 209) thinks that article 6 is separate from the previous one and that it is a law about debt collection in the most general way.39 He says that this paragraph does not deny the creditor his simple right of claim, but it prevents him from collecting the debt forcibly, with the harsh measure of the ana bīt of the debtor šasûm. Finkelstein (1969, 60) observers that “Kraus is certainly right in taking this phrase [ana bīt PN šasūm] to denote the immediate threat […] of the creditor to exact satisfaction of his 35 After Finkelstein (1969b, 61) who describes EA § 5 in following terms: “Hypothetical instance of fraudulent execution of an interest-bearing loan in the form of a commercial or bailment contract, with interest actually having been paid.” 36 For other opinions, see Driver and Miles 1952, 179. 37 The verb is from tuhhû: to add, CAD !, 80. 38 Greengus 1988, 156, says “The situation in par. 5 is perhaps more as Finkelstein [1969b] (p. 61) described it: the lender added his interest to the principal and then converted his loan into a fictitious but permissible obligation by which he could collect both.” 39 So Finkelstein (1969, 61), following Kraus 1958, describes EA § 6 as: “General statement interdicting foreclosure process (ana bīt NN šasūm) by any kind of creditor (qayapānum) against the person or dependents of the obligee. Death penalty for violation.” © Harrassowitz Verlag, Wiesbaden 2017 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. 20 Hossein Badamchi claim from the debtor’s or obligee’s estate or family by forcible removal of a member of the latter’s family as pawn/hostage (nepētum)”. Finkelstein (1969, 60) acknowledged the difficulty of explaining why such general statement should be inserted between EA §§ 5 and 7, but offered no solution. According to Kraus (ibid) in this paragraph, the law-giver expresses the opinion of the people that the forcible collection of the debt by taking away of the person from the family of the debtor is not permissible, because of the imbalance between the relatively low debts and the high price of the measure. Kraus (ibid) concludes that the death penalty that applies to violating the prohibition might perhaps show the “commoner”40 how much the king wants to protect him from evil oppressors. Kraus thinks that this is rather propagandistic than realistic; as it is often the case, the authority (Obrigkeit) wants to make itself more likable by this paragraph, on the cost of a social class (creditors) who were not well liked among the commoners. As noble as these ideas are, there are three objections to Kraus’ interpretation: 1. There is no doubt as to reality of the mēšarum-acts.41 There is convincing evidence that has proved the practicality and the actual application of the edicts in legal life.42 2. There are numerous texts, from the law collections and from the documents of legal practice that show it was quite common to take hostages from the household of the debtor to force him to pay back his debt. Of course, the maltreatment of the hostage was not allowed, but the legality of the act is most certain (see, for example, CH §§ 114– 115). 3. The opinion of Kraus is not also acceptable for philological reason: ana bīt X šasûm simply means to claim a debt from the debtor.43 It is not about using force to collect the debt or to distrain members of the debtor’s household, which would be separate actions. In any case, we cannot follow Kraus in making a separate paragraph out of article 6.44 We suggest that it belongs to article 5. In article 5, there is no sanction, apart from the loss of loan; one may think that the sanction is “merely for misrepresenting the contract (i.e. presenting the tablet to the judge and asking that it not be broken because it is a sale document). But if the creditor tries to claim (principal or interest) after the decree, then of course he faces a severe punishment.” 40 “dem ‘kleinen Manne’”. 41 Olivier 1984, 107–114; Charpin 2000, 185–211; Kraus 1984, 1–123 is the most detailed study of the reflection of the royal edicts in different types of documents. 42 Van de Mieroop (1992, 118) notes: “The indebtedness of the citizenry to private moneylenders caused their indenture to the creditors. This was not beneficial to the state which required their labor and taxes. Therefore, Ammisaduqa’s edict served his own interests.” We agree with Kraus (1984, 209) that the state intended to make itself more likable by issuing the debt cancelation decree, but Van de Mieroop’s observation reminds us that it should not be regarded as the only motivation. For both these purposes the reality of the edict is necessary. 43 Finkelstein 1967, 127–137 studied the same phrase in the context of marriage law and came close to suggest, in individual cases, the meaning of “to request, claim”, but failed to generalize it. 44 It was Lieberman (1989, 246f.) who in his review of Kraus 1984 first proposed that EA §§ 5 and 6 are to be understood as one section and not two separate articles. © Harrassowitz Verlag, Wiesbaden 2017 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited.  Fraud and Forgery in Old Babylonian Law 21 It seems to us, however, that there is no difference between presenting the tablet to the judge and claiming the debt.45 Presenting the tablet is a stage in the process of claiming a debt. The forgers cannot be allowed to test their forgery in the court to see if they can con- vince the court. Therefore, we suggest the following pattern: – Article 3 is the general decree of debt cancellation. – Article 4 stipulates that if some people, after the proclamation of the decree, have collected any debts already covered by the decree, they shall restore whatever they collected; if not, they shall die.46 – Article 5 extends the debt cancellation decree even to loans that have been falsely for- mulated under other titles. It is a logical extension of the decree that has been expressed for more clarity. Therefore, it is not surprising that there is no punishment. Article 5 im- plies that there is an action/lawsuit involved; in our opinion, it is the debtor who initiated it to cancel his debt-tablet. This is also another reason that the text does not mention the punishment of the creditor. So EA § 5, line 19, may be translated: “he (i.e. debtor) can bring his witnesses and prove that he took interest.” – Article 6 (=5 b) continues the law: if the creditor mentioned in the article 5 tries to collect his debt: he will die. The law does not give him the chance to voluntarily return the money and be pardoned, as it does in ES § 4. The material element of the crime is complex: forging the document and attempting to collect the debt based on the forged document. Conclusion The cases studied here demonstrate that fraud, i.e., obtaining other people’s property by deception, was considered crime and made the culprit liable to punishment. Forgery can be either in form or in content and the formal forgery is either total or partial. Legal docu- ments, seals, ownership mark of cattle and sheep, slave marks, and measurement tools are different objects that can be forged and be used in order to deceive another person in an act of fraud. The case described in CH §§ 226–227 demonstrates the necessity of mental element of the criminal fraud, i.e., criminal intention, the absence of which does not allow the for- mation of the crime. The requirement is revealed in CH §§ 226–227 where the barber shaved the slave mark of a stolen slave but he is acquitted because he did not know the fact that the slave is stolen, due to the deception of a third party who pretended to be the owner (or authorized by the owner). It must be observed that fraud is not a criminal act in general. For example, A purchases a certain amount of barley from B and when he receives the 45 The process of reviewing the tablets, mentioned in AbB 7, 153 (= CT 52, 153), in our opinion, is part of the litigation process (Finkelstein 1965, 233ff). 46 aš-šum i-na la si-ma-an ša-ad-du-ut-ti i-si-ru-ma ú-ša-ad-di-nu. We translate the last part of EA § 4 as follows: “Because he dunned and collected at a time improper for collection, he will return whatever he took through collection.” Finkelstein (1969b, 61) thinks it is about a “coerced premature payment.” However, he has omitted the phrase “i-na la si-ma-an ša-ad-du-ut-ti” in his both translations: 1969a and 1969b. Hallo (2000, 362) translates: “outside the season for collection.” © Harrassowitz Verlag, Wiesbaden 2017 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. 22 Hossein Badamchi barley realizes that the barley is of a lower quality than the sample barley the seller presented to him in the time of transaction; or we read that a merchant complains about the bad quality of textile that he received. These are not criminal frauds because they are not subject to penal sanctions (even though the purchaser may have the right to cancel the transaction). There is only a special type of fraud that is criminal and the determining factor is the infliction of penal sanction. We have argued that fraud by forgery in CT 2 47 and MDP 24 393 are criminal (although there is no sanction in the text) based on the analogy with cases where the penal sanction is evidently imposed for the same acts (for instance, EA § 18 and RS 16.249). One of the most important cases of fraud with forgery is certainly EA § 5; this legislative text also contains the only technical term in this subject. However, according to the current interpretation (Kraus 1958, 1984; Finkelstein 1969b; followed among others by Goddeeris 2002, 389) AS 5 is not a criminal fraud because there is no penal sanction for the case.47 Nevertheless, we have suggested that it records a criminal fraud by arguing that EA §§ 5–6 is in fact one article and therefore death penalty in EA § 6 will be applicable to a case of fraudulent action based on forged document. Therefore, based on cases studied in this essay, we conclude that the actus reus of crim- inal fraud has two main elements: deception and obtaining: the obtaining must be by decep- tion, i.e. there is a requirement of causation. Deception can be by words, conduct or false documents. We have demonstrated that such fraud, for example using false measure tools, is a crime in Mesopotamian law and because the goal of the crime is to obtain unjust prop- erty we are justified to classify it as a crime against property. The following quote from a textbook of modern criminal law deserves attention (Smith and Hogan 2005, 864): The forging of documents in itself rarely brings any advantage to the forger. The forgery is usually done as a preparatory step to the commission of some other crimes, most often a crime involving deception, which will result in some material advantage (most obviously money or other property transferring) to the forger. Considering our study we can also conclude that the forgery of documents as a prepara- tory step to the commission of fraud, i.e. obtaining property by deception, is regarded as an aggravating factor of the subsequent crime in the ancient Near Eastern law (EA §§ 5–6). We also witness that in the case of barber who altered a slave’s ownership mark without authorization the act of forgery is punished regardless of any other crimes that might have happened. However, the available cuneiform sources do not provide us with more examples of forgery as a separate offence. Two trials involving the accusation of forgery (CT 2 47 and MDP 24 393) give us a chance to see how Mesopotamian law dealt with the question of authenticity of legal docu- ments. The first option was to call upon the witnesses in whose presence the documents were made. However, the Susa trial shows that a second option was available if the witnesses were not present. The court could ask the defendant to take a purgatory oath and 47 The invalidation of the tablet is not a criminal sanction but the result of the Royal Decree that applies to the legitimate loan documents as well. © Harrassowitz Verlag, Wiesbaden 2017 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited.  Fraud and Forgery in Old Babylonian Law 23 validate the document merely based on the oath. This testifies to the independent eviden- tiary value of documents. 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