A History of Ancient Near Eastern Law

(Romina) #1
7.2.8 Documents recording the standard contractual forms may also
record a promissory oath by one or both parties. For the most part,
the oath relates to ancillary matters: either special terms not usually
found in that type of contract or (most frequently) a promise not to
deny, contest, or alter the terms of the completed contract in the
future. In the third millennium, oaths are sometimes recorded for
central obligations of the contract, for example, repayment of a loan.
This type of oath disappears in the second millennium, where only
ancillary oaths are recorded. By the first millennium, it is rare to
find any mention of an oath in the records of standard contracts.

7.3 Findings


7.3.1 So far as may be discerned from the limited evidence, a sin-
gle juridical conception of contract prevailed throughout the region,
though manifesting itself in autonomous forms in each society and
period. In that conception, there were two ways of creating a bind-
ing contract:


  1. By a bilateral, oral transaction of a standard type recognized by
    law, for example, sale, hire, or partnership. Its enforceability arose
    from the performance by one party of his obligations (possibly in
    part), which triggered the duty of the other party to fulfill his con-
    tractual promises (i.e., a “real” contract).

  2. By solemn oath, which created a unilateral obligation. Its enforce-
    ability arose from its form, which bound the promisor from the
    moment of his promise. It is not certain how far mutual oaths cre-
    ated mutual obligations, where breach by one side would absolve
    the other from his oath.


7.3.2 Bilateral standard contracts and oaths might be used:



  1. as alternatives, where the parties could choose either a standard
    contract or an oath to create the obligations;

  2. successively, as in the Hittite marriage contract, which could progress
    from an oath-based agreement to a standard contract (based on
    payment of the “bride-price”), with different consequences for breach;

  3. in a complementary manner, where oaths were used in standard
    contracts to secure ancillary obligations;

  4. cumulatively, where oaths were used in standard contracts to secure
    fundamental obligations.


7.3.3 The documentary record gives the impression of a gradual
decline in the use of the oath. Any conclusions, however, should be

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