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JOURNAL FOR THE STUDY OF THE OLD TESTAMENT

SUPPLEMENT SERIES

113

Editors

David J.A. Clines

Philip R. Davies

JSOT Press

Sheffield

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Property and the

Family in Biblical Law

Raymond Westbrook

Journal for the Study of the Old Testament

Supplement Series 113

Copyright © 1991 Sheffield Academic Press

Published by JSOT Press

JSOT Press is an imprint of

Sheffield Academic Press Ltd

The University of Sheffield

343 Fulwood Road

Sheffield S10 3BP

England

Typeset by Sheffield Academic Press

and

Printed on acid-free paper in Great Britain

by Billing & Sons Ltd

Worcester

British Library Cataloguing in Publication Data

Westbrook, Raymond

Property and the family in Biblical law.—(Journal

for the study of the Old Testament. Supplement

series. ISSN 0309-0787; 113)

I. Title II. Series

241.2

ISBN 1-85075-271-0

CONTENTS

Preface

Abbreviations

INTRODUCTION

Chapter 1

PURCHASE OF THE CAVE OF MACHPELAH

Chapter 2

JUBILEE LAWS

Chapter 3

REDEMPTION OF LAND

Chapter 4

THE LAW OF THE BIBLICAL LEVIRATE

Chapter 5

THE PRICE FACTOR IN THE REDEMPTION OF LAND

Chapter 6

UNDIVIDED INHERITANCE

Chapter 7

THE DOWRY

Bibliography

Index of References

Index of Authors

7

9

11

24

36

58

69

90

118

142

165

171

176

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PREFACE

My research in biblical law began within the confines of a law faculty

and it is not surprising therefore that my early papers on the subject

were published in law journals.

Unfortunately, the result has been to put these studies beyond the

knowledge or reach of biblical scholars. A number of students had

therefore suggested that I reprint those articles in a format accessible

to biblical scholarship, and when I put this suggestion to Dr Philip

Davies, Director of the Sheffield Academic Press, he very generously

agreed to their publication by the Press as a single volume of collected

essays.

The present volume contains five previously published essays, all

connected with the theme of family property in biblical law. I have

not attempted to revise them in any way; instead, I have added two

previously unpublished essays on the same theme and an Introduction

that seeks to delineate the general framework of the family and

inheritance law within which the special rules discussed in the

individual chapters operated. I have also updated the bibliography to

include relevant studies published since the original appearance of my

own articles.

Chapters 1-3 first appeared in Volume 6 of the Israel Law Review

for 1971 (pp. 29-38, 209-25, and 367-75, respectively); Chapter 4

appeared in Volume 24 of the Revue Internationale des droits de

I'antiquite (3rd series) for 1977 (pp. 65-87); and Chapter 5 in Volume

32 of the same journal for 1985 (pp. 97-127). Chapter 6 was

presented as a lecture to the Department of Civil Law of the

University of Edinburgh in May 1990, and Chapter 7 was presented as

a paper to the Society of Biblical Literature International Meeting in

Sheffield, England, in August 1988.

The book is, then, a collection of essays rather than a homogeneous

study. I can only hope that any inconvenience felt by the reader as a

result will be outweighed by the convenience of being able to find the

book in the library.

Raymond Westbrook

The Johns Hopkins University

October 1990

8 Property and the Family in Biblical Law

ABBREVIATIONS

AASOR

AB

AnBib

ANET

AOAT

ArOr

BA

BASOR

Bib

BibOr

BO

CBQ

CE

CH

CL

CRAIBL

DBSup

HL

HTR

HUCA

ICC

JAOS

JARCE

JBL

JCS

JEA

JESHO

JJP

JNES

JQR

JSOT

JSS

MAL

NBL

Or

OIL

Annual of the American Schools of Oriental Research

Anchor Bible

Analecta biblica

J.B. Pritchard (ed.), Ancient Near Eastern Texts

Alter Orient und Altes Testament

Archiv orientdlni

Biblical Archaeologist

Bulletin of the American Schools of Oriental Research

Biblica

Biblica et orientalia

Bibliotheca orientalis

Catholic Biblical Quarterly

Codex Eshnunna

Codex Hammurabi

Codex Lipit-Ishtar

Comptes rendus de I'Academic des inscriptions et belles-lettres

Dictionnaire de la Bible, Supplement

Hittite Laws

Havard Theological Review

Hebrew Union College Annual

International Critical Commentary

Journal of the American Oriental Society

Journal of the American Research Centre in Egypt

Journal of Biblical Literature

Journal of Cuneiform Studies

Journal of Egyptian Archaeology

Journal of the Economic and Social History of the Orient

Journal of Juristic Papyrology

Journal of Near Eastern Studies

Jewish Quarterly Review

Journal for the Study of the Old Testament

Journal of Semitic Studies

Middle Assyrian Laws

Neo-Babylonian Laws

Orientalia (Rome)

Old Testament Library

Property and the Family in Biblical Law:

Oudtestamentische Stiidien

Revue d'assyriologie et d'archeologie orientate

Revue biblique

Revue hittite et asiotique

Revue historique de droit

Revue historique de droit fran^ais et Stranger

Revue internationionale des droits de I'antiquite

Studia et Documenta ad lura Orientis Antiqui Pertinentia

Vorderasiatische Bibliothek

Ugarit-Forschungen

Vorderasiatische Bibliothek

Vie spirituelle

Zeitschrift fur Assyriologie

Zeitschriftfur die alttestamentliche Wissenschqft

Publications and editions of cuneiform texts are cited by the abbreviations of the

Chicago Assyrian Dictionary (CAD).

10

OTS

RA

RB

RHA

RHD

RHDFE

RIDA

SDIOAP

UP

VAB

VSpir

ZA

ZAW

INTRODUCTION

In ancient Israel, the principal source of income was not contract, as

in modern society, but property, and the most important property for

these purposes was agricultural land. At the same time, the principal

economic unit was the family, which provided the framework for

exploitation of the land and for distribution of the income from it.

Small wonder then, that the biblical law of property was concerned

less with the efficient use and transfer of a commercial asset than with

protecting the rights of the family to the source of their economic

survival, not only against outsiders but even against individual

members of the family itself.

The following chapters discuss the special rules developed by bibli￾cal law to maintain the link between property and family and to bend

ownership of property to the goal of ensuring the family's continua￾tion. The purpose of this introduction is to explain the context in

which those special rules operated: the nature of biblical law, of the

family as a legal unit, and of ownership, and the normal pattern of

inheritance of family property.

1. Biblical Law

The sources of law in the Bible consist only of isolated fragments, but

fortunately for our understanding of them, the law that they represent

stood in no such isolation. Biblical law was part of a much wider legal

tradition that extended across the whole of the ancient Near East.

Although its roots may be more ancient,1

the availability of written

legal sources from the mid-third millennium onwards enables us to

1. See N. Yoffee, 'Aspects of Mesopotamian Land Sales', American

Anthropologist 90 (1988), pp. 119-30, esp. pp. 127-28, where the pattern of

prehistoric urban settlement in the Jordan valley is linked to legal practices in 2nd

millenium Babylonia.

12 Property and the Family in Biblical Law

trace its diffusion along with that of cuneiform writing, through the

academic traditions of the law codes, through royal edicts and through

the many documents of practice. That biblical law was heir to the

cuneiform traditions can be seen from their reflection not only in the

biblical law codes but in all genres of biblical literature, from wisdom

to narrative. Like all other parties to the tradition, the biblical system

was independent, accepting rules selectively and developing special

ones of its own, but it shared so much of the common conceptions and

practices that even its most parochial norms are thrown into relief

when placed against the background of the surrounding systems. It is a

context constructed from evidence no less fragmentary than the bibli￾cal, and as we shall see in the course of the following chapters, the

biblical sources make no mean contribution themselves to the under￾standing of Sumerian or Ugaritic law.1

2. The Family

The association between family and property permeates the basic

terminology: in Gen. 7.1, God orders Noah, 'Go into the ark, with all

your house...' The word 'house' of course does not refer to bricks

and mortar, but to the members of Noah's family, who are enumer￾ated in v. 7: 'Noah, with his sons, his wife, and his sons' wives...'

The term 'house' therefore describes a patriarchal family, including

married adults and presumably their children, all under the authority

of a single head.

When this unit is referred to objectively, i.e., to include the head, it

is called a 'father's house' (byt'b). Gottwald2

distinguishes between the

true byt 'b of the current head of household, and a larger social unit

such as a tribe or dynasty which is fictitiously conceived as a byt 'b

The latter may carry the name of a founding ancestor, for example,

the tribe of byt Joseph or the dynasty of byt David, or may merely

1. For this 'diffusionist' view of ancient Near East law, see esp. S. Paul, Studies

in the Book of the Covenant in the Light of Cuneiform and Biblical Law (VTSup, 18;

Leiden: Brill, 1970), pp. 99-105 and R. Westbrook, 'The Nature and Origins of the

Twelve Tables', Zeitschrift aer Savigny-Stiftung (Rom. Abt.) 105 (1988), pp. 82-

97. For reservations as to this view, see M. Malul, Review of Westbrook, Studies in

Biblical and Cuneiform Law, Orientalia 59 (1990), p. 86.

2. See N.K. Gottwald, The Tribes of Yahweh (New York: Orbis, 1979),

pp. 285-92, esp. p. 287.

imply it, as in 1 Sam. 2.28 where the reference to God's favour to the

'house of the father' of Eli must be to Eli's ancestor, presumably

Moses.1

In this study we are concerned with the true byt 'b, the living

family. Thus in Gen. 47.12 we are told:

Joseph sustained his father and his brothers and all his father's house with

bread, down to the little ones.

In spite of his importance, Joseph is still not the head of the family,

which is referred to as the house of his father, namely Jacob. But

'house' can have a different connotation. In Gen. 31.14, Laban's

daughters, Rachel and Leah, complain: 'Have we still an inheritance

share in our father's house?' The reference here is clearly not to per￾sons nor to a dwelling but to the family assets under the father's con￾trol. The further dimension of 'house' as inheritable property is

emphasized by the prophet Micah in his protest against the seizure of

family estates (2.2):

They covet fields and seize them,

Houses, and take them away;

They oppress a man and his house,

A person, and his inheritance.

Parallelism forms an important rhetorical device in this verse. The

first parallel is two types of real estate, fields/houses, which are the

object of parallel verbs: seize/take away. Both verbs have technical,

legal meanings. They refer not to simple acts of force but to specific

legal (or illegal) activities. The verb translated 'seize' (gzl) denotes the

acquisition of property by an abuse of authority, either by an official

or by a creditor wrongfully exercising his right of distraint.2

The

verb translated 'take away' (ns') denotes confiscation of property,

often in the context of a royal grant. The king confiscates (ns') land

and re-allocates it (ndn) to a loyal subject.3

1. The question of Eli's ancestry is summarized by P.K. McCarter, / Samuel (AB;

New York: Doubleday, 1980), pp. 91-93. Further confusion is caused by the

Priestly source's occasional use of byt'b as a metaphor for one of the larger units in

order to create pseudo-kinship for the genealogies in the schematic account of Israel's

period in the desert prior to entering the promised land, e.g., Num. 17.16-26; 26.23;

cf. Judg. 10.1 (ibid., pp. 287-90).

2. R. Westbrook, Studies in Biblical and Cuneiform Law (Cahiers de la Revue

Biblique, Paris, 26; 1988), pp. 23-30.

3. J.C. Greenfield, 'NaSu-naddnu and its Congeners', in Essays on the Ancient

Introduction 13

The second parallel presents the house as an abstract family asset

(house/inheritance), and it is the object of a verb with an appropriate

legal meaning. The verb translated 'oppress' ('£<?) refers to the denial

of a person's legal due, as in the case of the day labourer denied his

wages (Deut. 24.14-15).1

What is being denied here is the man's right

to inherit his family estate, his 'house'. The prophet thus shows how

powerful oppressors deprive a family of its ancestral property, con￾fiscating it from one generation and denying the next access to it.

As Stager has shown,2

the 'father's house' represents a socio￾economic reality in Israelite settlement, namely a cluster of dwellings

forming a single household of up to three generations. The term is by

no means confined to Israel, however; its equivalent in Sumerian

(e-a-ba) and Akkadian (bit abirri) has the same three meanings. In

Codex Hammurabi (CH) a man can found his 'house', i.e., family, by

adopting a son (191), and his sons will then inherit the 'property of

the father's house', i.e., of the estate (nfg-ga e-a-ba: 165-7), while a

daughter awaiting marriage still lives in her father's house, i.e., the

dwelling (130).

3. Ownership and its Limits

From the legal point of view, what distinguishes the 'father's house' as

a unit in both Mesopotamia and Israel is the existence of a single head

of household who is the sole owner of the household's assets, notwith￾standing the existence of adult sons, even married and with children,

within the household. The sons will eventually inherit those assets on

their father's death, but until that time their property rights are

merely potential. In Israel, the landlessness of sons during their

father's lifetime is an essential factor in the rationale of the levirate, as

we shall see in Chapters 2 and 4, while from CH 7 we learn that a son,

like a slave, could not sell family property without his father's per￾mission.3

Near East in Memory ofJJ. Finkelstein (Hamden, 1977), pp. 87-91.

1. Westbrook, Studies, pp. 35-38.

2. L.E. Stager, The Archaeology of the Family in Ancient Israel', BASOR 260

(1985), pp. 18-23. Cf. Gottwald, Tribes, pp. 291-92, and C.H.J. de Geus, The

Tribes of Israel (Amsterdam, 1976), pp. 134-35.

3. 'If a man buys or receives from the son or slave of a man silver, gold, a

slave or slave-woman, an ox, a sheep, an ass or anything else without witnesses

14 Property and the Family in Biblical Law