7.5.2 The penalties set by the contracts themselves were not confined
to the pecuniary. Even pecuniary penalties could be impossibly high
sums, which leads one to wonder what was the alternative to non-
payment. One definite possibility was slavery, since a party could
agree directly to be sold into slavery as penalty for breach. Other
penalties were mutilation or even death. Again, these are found as
direct penalties for breach: “a peg shall be driven into her mouth
and nose” (Old Sumerian: SRU 43); “his head shall be smeared with
hot pitch” (Old Babylonian: TCL 1 237) “molten lead shall be poured
into his mouth” (AT 28), “he shall put out the eyes of A. and her
children and sell them” (Nuzi: JEN 449), “she shall die by the dag-
ger” (Neo-Babylonian: Roth 5). A character in 1 Kings 20:39 reveals
the link between excessive payments and cruel and unusual punish-
ments: “Your servant went out to battle and a man came up to me
and said: ‘Guard this man; if he goes missing, it is your life for his,
or you will pay a talent of silver.’” While such penalties are not
common and tend to be imposed in situations involving status or
extremes such as war, some are for breach of unexceptional com-
mercial bargains.^45 There is an instinctive inclination to deny that
they were ever applied in practice, but in a world where criminal
penalties could be exceedingly harsh by modern standards, there was
nothing fantastic about the penalties themselves.^46 Rather, it would
appear that the sharp distinction drawn in modern penology between
criminal and contractual liability did not exist. As the king of Israel
expresses it in his uncomforting reply to the guard mentioned above,
who had managed to lose his prisoner in spite of the terrible penalty
threatened (1 Kings 20:40): “This is your sentence: you yourself pro-
nounced it.”(^45) Cf. a penalty clause in Old Babylonian sale documents: “If there is a claimant
(to the property sold), he (seller) shall pay 2 minas of silver or his tongue will be
torn out” (e.g., TIM 5 19).
(^46) Less credible is a cumulative list of the kind found in a Neo-Assyrian sale doc-
ument: “... he shall pay 5 minas of silver and 5 minas of gold to (the god) Adad
of Kurbail, and shall dedicate 7 male and 7 female votaries to Shala, the consort
of Adad. He shall offer 2 white horses at the feet of Assur. He shall eat 1 mina of
carded wool and drink a standard agannu-bowl. They shall strew for him 1 seah of
cress-seed from the gate of Kurbail to the gate of Kalhu and he shall pick it up
with the tip of his tongue and fill their seah-bowl to the brim. He shall repay the
price to its owners tenfold; he shall plead in his lawsuit and not succeed” (CTN 2
15). Clearly, the penalties are in terrorem, but they are of a different order to the
others discussed: they are not inflicted but require action by the party at fault, in
the manner of a forfeit.
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