Israelite Law: Property Law
Israelite Law: Property Law
ISRAELITE LAW: PROPERTY LAW
Like Israelite law in general, Israelite property law is marked by a concern for the rights of the individual. In particular an attempt is made, at least in theory, to safeguard the rights of the less fortunate (the poor, widows, orphans, etc.). As will be seen in this article, Israelite property law shares many points of contact, both in actual detail and in terminology, with property laws found elsewhere in the ancient Near East.
Conveyance of Property
As expressed ideally in the laws of the Hebrew Bible, the only transference of property in ancient Israel should be through inheritance. Every Israelite family was allocated a plot of land at the original apportionment, traditionally held to have been in the time of Moses and Joshua (Nm. 26:52–54, 33:54; Jos. 13–22), and it was believed that this ancestral plot should remain, if not in the family's possession, then at least in the possession of the clan. Thus there really should be no sale of land. Theological justification for this point of view is given in Leviticus : "But the land must not be sold beyond reclaim, for the land is Mine; you are but strangers resident with Me" (Lv. 25:23). This view regards God as owner of all property and the Israelites as only temporary tenants who may not buy or sell land. The duty of redemption and the institution of the Jubilee year (for both, see below) tend to corroborate this point of view, as does the complete absence in the Bible of laws concerning the renting of property.
Sale of land
While there is some evidence that this view of the inalienability of property was current in monarchical times (as can be gathered from Naboth's response to Ahab in 1 Kings 21:3), there can be little doubt that the very emergence of the monarchy and the growth of the cities led to sweeping sociological changes as far as land ownership was concerned. Because of debt, many small farmers were forced to sell their farms to a new landed aristocracy. The situation became so serious that by the time of the eighth century the old Israelite society based on the small farmer had been destroyed. This was the situation that attracted the opposition of the prophets who denounced the land-grabbing practices of the new aristocracy. For example, Isaiah complains, "Ah, those who add house to house and join field to field, till there is room for none but you to dwell in the land!" (Is. 5:8). Similarly, Micah condemns those who "covet fields, and seize them; houses and they take them away. They defraud men of their homes, and people of their land" (Mi. 2:2).
Contracts of sale
The Bible records a number of property transactions, including Jacob's purchase of land at Shechem (Gn. 33:18–20), David's purchase of the threshing floor from Araunah (2 Sm. 24:24), Omri's purchase of the hill of Samaria, site of his future capital, from Shemer (1 Kgs. 16:24), and Boaz's purchase of a field from Naomi (Ru. 4:9). Two transactions are recorded in detail: when Abraham purchases the Cave of Machpelah (Gn. 23:3–20) and when Jeremiah, fulfilling his duty as near kinsman, redeems (purchases) the land in Anathoth from his impoverished cousin Hanamel (Jer. 32:6–15). In these two transactions there are elements that conform to standard ancient Near Eastern real estate documents.
In Abraham's purchase, one can discern the strict attention that is paid to ensure that the transaction conforms to all the details of ancient Near Eastern law. Thus, as required by early Mesopotamian law, two stages in the transfer of the property can be seen: payment of the price by the transferee to the transferor and taking possession of the property by the transferee. Hence it is twice said that the field was transferred to Abraham, once after Abraham weighed the silver for Ephron, that is, after payment of the price (Gn. 23:17), and then again after he buried Sarah (Gn. 23:20), that is, after he took possession of the field.
Another reflection of Mesopotamian law may be seen in the passage about Jeremiah's redemption of land that describes in detail the writing of a real estate contract (Jer. 32:6–15). Two copies of the deed of sale are made and witnessed, all "according to rule and law" (Jer. 36:11). Both are kept in the archives, but one is sealed as the official permanent record, and the other is unsealed for consultation when necessary. This reflects the Mesopotamian practice of enclosing a contract in a clay envelope that shows a copy of the same contract on the outside.
Redemption of Hereditary Land and the Jubilee Year
In accordance with the principle, expressed above, of the inalienability of land, a person's patrimony should ideally never be sold. However, should a man, due to economic straits, have to sell his land, then the law provides relief for its retrieval in two ways. First, the debtor's nearest family member is given the option of first refusal to the property (redemption). Second, in the absence of a family redeemer, the property ultimately reverts back to the debtor in the Jubilee year.
Among the Israelites, the redemption of property from indigent family members was regarded not only as a moral obligation but also as a noble form of social action (Lv. 25:25–34). Two examples in the Bible of family members redeeming property (already mentioned) are Jeremiah redeeming his cousin's field at Anathoth (Jer. 32:6–9) and Boaz redeeming the field belonging to Naomi (Ru. 4:1–10). Note that in these cases the land is not restored to the impoverished kinsman but becomes the property of the redeemers. (For a contrary opinion, see Levine, 1983). Under the laws of the Jubilee, however, the land reverts back to the original owner. In both cases, the clan is protected from the alienation (loss) of the property.
The Jubilee year
The law of the Jubilee year (shenat ha-yovel) is set out in Leviticus 25. Three regulations concerning property ought to be mentioned here:
- Anybody who is forced to sell ancestral lands may reclaim them every fiftieth year, pointing to the principle that land cannot be irrevocably sold (Lv. 25:10, 25:13, 25:28).
- Because land cannot be irrevocably sold, what can be sold is only so many harvests (Lv. 25:15–16). Consequently every sale of land becomes a kind of lease for a number of years before the next Jubilee.
- Town houses, other than those belonging to Levites, are not subject to the Jubilee law. If they are not redeemed within one year of purchase, then the seller can never reclaim them (Lv. 25:29–30).
The terminology used to describe property that cannot be reclaimed is tsemitut ("beyond reclaim"), a term that has both semantic (tsamit, "beyond reclaim") and functional parallels in real estate documents from Ugarit in the thirteenth century bce.
The original intention of the Jubilee law is much debated. There are two major schools of thought. One holds that in the Jubilee law the old tribal principle of inalienability of the land was affirmed, but because of the new social realities, the land laws were relaxed. Hence when the new economic order, which was not tied to the land or to patrimony, came into being, irrevocable sales in the cities were permitted (Weinfeld, 1980). The other school believes that the law is a later (postexilic) reworking of the Sabbatical year (on which all agree it is patterned) by the Priestly school. The principle here is that of restitutio in integrum, "a restoration to an original state": The land has to be returned to its original owner and thereby effect a restoration of the structure of Israelite society as it had been divinely ordained in ancient days (Noth, 1977).
Scholars also differ on the question of whether the Jubilee law was ever actually put into effect. The problem is aggravated because of the paucity of references in the rest of the Bible. The Jubilee is not referred to in any historical text, not even in postexilic ones. Outside of Leviticus 25, it is mentioned only in Leviticus 27:17–25 and briefly in Numbers 36:4 and Ezekiel 46:17. The protests of the prophets concerning land monopoly may indicate that the Jubilee law was not observed in preexilic times, and, because Nehemiah makes the people promise to observe the Sabbatical year but says nothing about the Jubilee year (Neh. 10:32), the same may probably be said for postexilic times as well.
Rights of Inheritance
The norm in ancient Israel was that a man's property was inherited by his sons, the firstborn receiving a double share (Dt. 21:15–17). In the event that a man had no sons, the line of inheritance was transferred through a scale of family members: from daughters to brothers to uncles and, ultimately, to the nearest kinsman of the deceased (Nm. 27:8–11). It is noteworthy that there is no provision in this list for a man's widow (see below). While the principle of primogeniture was the rule, there are numerous cases recorded in which the firstborn did not get the preferential share. Indeed, a significant motif in the narrative sections of the Bible is that the younger son eventually supplants the older both in cases where property is concerned (e.g., Ishmael and Isaac, Esau and Jacob, Reuben and Joseph, and Manasseh and Ephraim) and in cases of succession to the throne (e.g., Eliab and David and Adonijah and Solomon).
Rights of daughters
According to Numbers 27:1–11, daughters originally were not eligible to inherit any part of the family estate. Only after the case of the daughters of Zelophehad was provision made for daughters to inherit on a limited basis: They could inherit providing the deceased had no sons (Nm. 27:8) and they married within the clan, so that the patrimony would not be transferred to another tribe (Nm. 36:6–9). There is a reference in the Book of Job to Job's daughters inheriting alongside their brothers (42:15). However, because of the fact that Job is set in a non-Israelite locale, scholars generally do not regard this as standard Israelite practice.
Rights of widows
As already indicated, the line of inheritance in Numbers makes no provision for the widow, not even for the usufruct of her husband's property. This is unusual because in most ancient Near Eastern law collections (e.g., the Code of Hammurabi and Hittite and Assyrian laws) the widow is appropriately provided for. This omission is usually explained by the supposition that it was incumbent on the eldest son, who receives a preferential share of the estate, to provide for his mother and the unmarried female members of the family. It is also pointed out that widows, although not specifically mentioned in the line of inheritance, were provided with some degree of protection in the laws concerning the levirate.
The laws of the levirate state that should a man die without leaving a son, the brother of the deceased must marry the widow. The first child of this marriage is to be considered the heir of the deceased (Dt. 25:6). By this device, the estate of the deceased would be preserved, because his inheritance would pass to the child. However, there are indications that these laws were not widely observed (e.g., in the story of Judah and Tamar; see Gn. 38), and the penalties for nonobservance were insignificant (Dt. 25:7–10, Ru. 4:7–8). There was no incentive other than moral duty for the brother to perform what may well have been regarded as a most onerous and unwelcome task (Davies, 1981). For by assuming the duty, the brother not only lost his claim to his own brother's estate—because if there were no heir, he and his brothers would be next in line (Nm. 27:9)—but in certain cases performance of the levirate could actually be damaging to his own estate (by having to take responsibility for the widow as well as managing his dead brother's land). Performance of the levirate must therefore have been considered a magnanimous act by the brother: He was assuming obligations without necessarily deriving any corresponding benefits.
In the ancient Near East, having an heir was of paramount importance. Should a wife remain childless, her husband could marry another woman. To forestall this, the woman might give her own personal slave to her husband to bear the children for her. Children born of such unions were thought of symbolically as the wife's. Examples of barren women giving maids to their husband include Sarah, who gives Hagar to Abraham (Gn. 16:3), Rachel, who gives Bilhah to Jacob (Gn. 30:3), and even Leah, who, not barren but no longer bearing children, gives Zilpah to Jacob (Gn. 30:9–13). Children of such marriages had the same rights of inheritance as natural children (e.g., Ishmael in Gn. 17:18, 21:10).
Another method that was very common in the ancient Near East, and to which childless couples often resorted, was adoption. Although there are no laws of adoption in the Bible, the institution may underlie some of the patriarchal narratives, for example, in Abraham's complaint that because he was childless, Dammesek Eliezer would inherit from him. (Gn. 15:2–4).
There is as yet no work exclusively dealing with Israelite property laws of ownership and inheritance. Material on this subject can be garnered from general works on Israelite law and institutions. Still the classic among these is the chapter "Economic Life" by Roland de Vaux in his Ancient Israel, vol. 1, Social Institutions, 2d ed. (London, 1965), pp. 164–177. Particularly useful is the survey of Israelite law by S. E. Loewenstamm in his article "Law" in The World History of the Jewish People, edited by Benjamin Mazar, vol. 3, Judges (Tel Aviv, 1971), pp. 231–267.
On specific topics, Edward Neufeld's article "The Emergence of a Royal-Urban Society in Ancient Israel," Hebrew Union College Annual 31 (1960): 31–53, is helpful for understanding the changing economic conditions in Israel at the time of the monarchy. Baruch A. Levine's study "Late Language in the Priestly Source: Some Literary and Historical Observations," in Proceedings of the Eighth World Congress of Jewish Studies …, Bible Studies and Hebrew Language (Jerusalem, 1983), pp. 69–82, deals with the terminology of land tenure. Robert North's Sociology of the Biblical Jubilee (Rome, 1954) is a full-length treatment of most aspects of the Jubilee, which may be supplemented by the relevant sections in Martin Noth's Leviticus (Philadelphia, 1977), pp. 181–193, and in Moshe Weinfeld's Mishpaṭ u-tsedaqah be-Yisraʾel uva-ʿamim (Jerusalem, 1985), pp. 104–106. Articles dealing with different aspects of rights of inheritance are Zafrira Ben-Barak's "Inheritance by Daughters in the Ancient Near East," Journal of Semitic Studies 25 (Spring 1980): 22–33; Eryl W. Davies's "Inheritance Rights and the Hebrew Levirate Marriage," Vetus Testamentum 31 (1981): 138–144, 257–268; and Tikva Frymer-Kensky's "Patriarchal Family Relationships and Near Eastern Law," Biblical Archeologist 44 (Fall 1981): 209–214.
Heltzer, Michael. "About the Property Rights of Women in Ancient Israel." In Shlomo: Studies in Epigraphy, Iconography, History and Archaeology in Honor of Shlomo Moussaieff, edited by Robert Deutsch, pp. 133–138. Tel Aviv-Jaffa, Israel, 2003.
Mbuwayesango, Dora Rudo. "Can Daughters Be Sons? The Daughters of Zelophehad in Patriarchal and Imperial Society." In Relating to the Text: Interdisciplinary and Form-Critical Insights on the Bible, edited by Timothy J. Sandoval and Carleen Mandolfo, pp. 251–262. London, 2003.
Ollenburger, Ben Charles. "Jubilee: 'The Land Is Mine; You Are Aliens and Tenants with Me.'" In Reclaiming the Old Testament: Essays in Honour of Waldemar Janzen, edited by Gordon Zerbe, pp. 208–234. Winnipeg, Man., 2001.
Sicherman, Harvey. "'Foremost in Rank and Foremost in Power:' Conflict over the First-born in Israel." Jewish Bible Quarterly 31 (2003): 17–25.
Westbrook, Raymond. Property and the Family in Biblical Law. Journal for the Study of the Old Testament Supplement Series, no. 113. Sheffield, 1991.
David Marcus (1987)