A History of Ancient Near Eastern Law

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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