The Annulment of a ‚Purchase’ Marriage in Exodus 21,7-11
Pages 219 - 231
1 See for a brief re view of traditional scholarship G.C. Chirichigno, Debt-Slavery in Israel and the Ancient Near East, JSOT Supplement Series 141, Sheffield, 1993, 244–246; C. Pressler, Wives and Daughters, Bonds and Free: Views of Women in the Slave Laws of Exodus 21.2-11, in: V.H. Matthews, B.M. Levinson & T. Frymer-Kensky, Gender and Law in the Hebrew Bible and the Ancient Near East, JSOT Supplement Series 262, Sheffield, 1998, (147-172) 148–149.
2 E.g. S.M. Paul, Studies in the Book of the Covenant in the Light of Cuneiform and Biblical Law, Leiden 1970, 53: “The law in Exodus (…) pertains to the sale of a young woman by her father to a purchaser who must ensure her with a marital status”; Chirichigno, Debt-Slavery, 251: “this law should be understood as an attempt to guarantee to a girl who is sold as a wife those rights that were normally afforded to daughters who were married in the customary manner”; Pressler, Wives and Daughters, 149: “A majority of more recent scholars rightly believe that the bondswoman of Exod. 21.7 is excepted from the release because she has been sold for sexual and reproductive purposes”; R. Westbrook, The Female Slave, in: Matthews, Levinson & Frymer-Kensky, Gender and Law, (214-238) 214: “there were special rules for female slaves in respect of their sexuality and reproductive capacity”; N. Lohfink, Fortschreibung? Zur Technik von Rechtsrevisionen im deuteronomistischen Bereich, erörtert an Deuteronomium 12, Ex 21,2-11 und Dtn 15,12-18, in: T. Veijola (Hrsg.), Das Deuteronomium und seine Querbeziehungen, Schriften der Finnischen Exegetischen Gesellschaft 62, Göttingen 1996, (126–171) 156: “einerseits die temporäre Schuldversklavung eines Mannes bezüglich seiner Arbeitskraft, andererseits die nicht zeitlich begrenzte Versklavung eines Mädchens bezüglich (…) seiner Sexualleistung”; an exception to the rule seems to be C. Houtman, Das Bundesbuch: ein Kommentar, Leiden 1997, DMOA 24, Leiden 1997, 88–89, who, on the one hand, accepts that Ex 21,7-11 deals with a concubine, but, on the other hand, is intend to construe a difference in legal status between men and women which was only remedied by Deut 15,12-18: “Innerhalb der Kategorie der Unfreien findet sich eine gleiche Behandlung von Mann und Frau (Ex 21,20.26.32), mit Ausnahme der Sklavin, die Konkubine ist (21,7). Die Ungleichheit von 21,2-11 fehlt in Dtn. 15 in Übereinstimmung mit der Betonung der Gleichheit von Mann und Frau im Deuteronomium”.
3 E.g. Paul, Studies, 53; “she is provided with the protection of marriage for life”; Chirichigno, Debt-Slavery, 254: “the law in vv. 7-11 attempted to protect the rights of an אמה who was sold as a wife or concubine’; Pressler, Wives and Daughters, 147: “the law of the enslaved daughter seek[s] to protect her by setting forth the master's obligations toward her”.
4 Westbrook, The Female Slave, 214: “the rules that governed the condition of female slaves are of particular jurisprudential interest because they arose from a conflict between family law (…) and property law …”.
5 See J. Van Seters, The Law of the Hebrew Slave, ZAW 108, 1996, (534-546) 542–543; idem, A Law Book for the Diaspora: Revision in the Study of the Covenant Code, Oxford 2003, 90–92.
6 The similarities between Ex 21,7-11 and the Nuzi contracts known as tuppi mārtūti ù kallatūti, ‚document of daughtership and daughter-in-lawship’, which arrange the ‚sale’ and adoption of young girls in order to marry the ‚buyer’ or his son, are limited, because Ex 21,7-11 does not refer to adoption, as has been emphasised by Paul, Studies, 53; Van Seters, Hebrew Slave, 542; idem, Law Book, 91, and the Nuzi contracts in all likelihood do not involve a ‚sale’ at all, as has been argued by Westbrook, Female Slave, 218–219.
7 Van Seters, Hebrew Slave, 542–543; idem, Law Book, 91.
8 See for the text and translation Th. Kwasman, Neo-Assyrian Legal Documents in the Kouyunjik Collection of the British Museum, Studia Pohl: Series Major 14, Rome 1988, 145-146, no. 120; see also 151-152, no. 124; 166-167, no. 133. Unfortunately, the chart provided by Kwasman, Neo-Assyrian Legal Documents, xx-xxi, is not entirely accurate as it erroneously omits no. 133, but includes no. 363, 364, 367 in the list of marriage sales.
9 See for the text and translation Kwasman, Neo-Assyrian Legal Documents, 253-254, no. 214; and perhaps also 403, no. 351, which does, unfortunately, not identify the social status of the man for whom the girl is intended.
10 R. Kessler, Die Sklavin als Ehefrau: zur Stellung der ʾĀMĀH, VT 52, 2002, 501–512; see also Van Seters, Law Book, 91-92 with note 45; and Chirichigno, Debt-Slavery, 253-254, who admittedly agrees that the girl is afforded the rights of a full woman and not a concubine, but nevertheless deals with the law in the context of debt-slavery.
11 Pace A. Jepsen, Amah und Schiphchah, VT 8, 1958, (293-297) 293, who rightly emphasised that אמה could refer to a female slave who was married, but in the end concludes: “אמה ist die unfreie Frau, sowohl die Nebenfrau eines Mannes, wie die unfreie Frau eines unfreien Mannes, eines Sklaven”; see also HAL s.v. אמה, ‚Sklavin’ Magd und Konkubine’; Gesenius s.v. אמה, ‚unfreie Frau 1. Sklavin … 2. Nebenfrau’. Pressler, Wives and Daughters, 156 with note 18, introduces the term ‚slave wife’ to distinguish such a woman from a ‚free wife’, but unfortunately blurs the discussion by defining the ‚slave wife’ subsequently as a ‚concubine’: “The differences between a slave wife (or, more, precisely, an enslaved concubine) and a primary (my italics JAW) wife are …”.
12 See Kessler, Sklavin als Ehefrau, 502-503, who refers to the Silwan Tomb Inscription: ‚This is [the tomb of …]iah, the royal steward. Here is no silver or gold - only [his bones] and the bones of his female slave with him …’ (see for the text of the inscription e.g. G.I. Davies, Ancient Hebrew Inscriptions. Corpus and Concordance, Cambridge 1991, no. 4.401).
13 See Kessler, Sklavin als Ehefrau, 504-505, who discusses two seventh century Ammonite seals reading lʿlyh ʾmt ʾhnnʾl, ʿAlyā, female slave of Ḥananʾel (see N. Avigad & B. Sass, Corpus of West Semitic Stamp Seals, Jerusalem 1997, no. 874), and lʿnmwt ʾmt d/rblbs, ‚‘Anamot, female slave of N.N.’ (see Avigad & Sass, Corpus, no. 875), and a seal from fifth century Yehud with the inscription lšlmyt ʾmt ʾlntn …, ‚Shelomit, female slave of Elnathan …’ (see for the text of this seal e.g. Davies, Inscriptions, no. 106.018).
14 Kessler, Sklavin als Ehefrau, 506-507, points to two documents from the so called Ananiah archive from Elephantine from the second half of the fifth century, which record that Ananiah takes a certain Tamet, the ʾmh, female slave’, of Meschallum from Syene, as his one and only wife (see for the text and translation E.G. Kraeling, The Brooklyn Museum Aramaic Papyri. New Documents from the Fifth Century B.C. from the Jewish Colony at Elephantine, New Haven, 1953, 142-143, no. 2: B. Porten & A. Yardeni, Textbook of Aramaic Documents from Ancient Egypt, Volume II Contracts, Winona Lake 1989, 60-63, no. B.3.3), and the release of Ta(pe)met from slavery by Meschallum a full twenty-two years later (see for the text and translation Kraeling, Aramaic Papyri, 180-181, no. 5; Porten & Yardeni, Aramaic Documents, 72-73, no. B.3.6).
15 The conclusion drawn by Kessler, Sklavin als Ehefrau, 509-510, that אמה ‚slave wife’, is the semantic opposite of אשה, ‚free wife’, may, however, not be entirely warranted, as may be clear from the documents from the Ananiah archive in which - as Kessler, Sklavin als Ehefrau, 506, readily admits: “Natürlich könnte Ananiah Tarnet nicht als, seine ‘amah’ bezeichnen. Sie ist die ʾamah eines anderen …” - Ta(pe)met is admittedly the wife of Ananiah, but remains the ‚female slave’ of Meschallum. Ta(pe)met is neither אמה of Meschallum as opposite to his אשה, nor אמה of Ananiah as opposite to his אשה.
16 Pace Westbrook, Female Slave, 229-230: “In my view, marriage of a female slave to her own master is the one situation where marriage and slavery are altogether incompatible: a man cannot be a master and a husband of the same woman at the same time. The reasons derive from the logic of the two institutions”.
17 Pace Pressler, Wives and Concubine, 157-158, who rightly emphasises that אמה elsewhere in the Covenant Code is used in the general sense ‚female slave’, ‚bondswoman’, but without further evidence assumes Ex 21,7-11 to deal with the sale of young women by their father to exploit their sexual and reproductive capacities; see also Chirichigno, Debt-Slavery, 251, who does carefully distinguish between the אמה elsewhere in the Covenant Code and the אמה in Ex 21,7-11, who is being sold as a full wife.
18 See also Van Seters, Law Book, 92; the Old Assyrian marriage contracts are cited by Westbrook, Female Slave, 230-231, who nevertheless fails take them into account in discussing the interpretation and meaning of Ex 21,7-11.
19 See for the text and a paraphrase J. Lewy, On Some Institutions of the Old Assyrian Empire, HUCA 27, 1956, (1-80) 3 with note 7.
20 See for the text and translation Lewy, Institutions, 6–8; see also the translation offered by Westbrook, Female Slave, 231.
21 See Lewy, Institutions, 3-4 with note 8: “in certain cases a woman entitled, like a legitimate wife’, to alimony was denoted not as aššatum but as amtum”, and “there is nothing (…) which, directly or indirectly, characterizes Walawala as an unfree person”, suggesting that the Assyrian traders: “did not and could not accord to their wives the title assatum whenever they were married to an aššatum residing elsewhere (…) or wished to retain the right to marry another woman whom they intended to make their aššatum“; Westbrook, Female Slave, 231-232: “the term amtum refers to a definite legal status”, and: ‚“female slavery’ (…) was legitimate marriage …”.
22 Van Seters, Law Book, 90–93; Kessler, Sklavin als Ehefrau, 507-508, unfortunately, continue to deal with Ex 21,7-11 in fairly traditional terms.
23 See G. Liedke, Gestalt und Bezeichnung alttestamentlicher Rechtssätze: Eine formgeschichtlich-terminologische Studie, WMANT 39, Neukirchen, 1971, 31-34, who demonstrated that different אם- clauses are coordinately dependent upon the same main clause, whereas a ־ואם clause is dependent upon a previous ־אם clause; see also Chirichigno, Debt-Slavery, 197. The model presented by Lohfink, Fortschreibung, 155, distinguishing in Ex 21,2-11 two sets of provisions consisting of a main case introduced by כי and four subcases introduced by ואם/אם, may hardly disprove Liedke's conclusions about a functional distinction between אם and ואם, as has been claimed by B.M. Levinson & M.M. Zahn, Revelation Regained: The Hermeneutics of כי and אם in the Temple Scroll, Dead Sea Discoveries 9, 2002, (295-346) 315-316 with note 67, as the subordinate clauses introduced by ואם in Ex 21,6 and Ex 21,11 clearly present subconditions to the secondary cases presented in Ex 21,5 and Ex 21,10, as is admitted by Lohfink, Fortschreibung, 155 with note 84: “In beiden Gesetzen steuern die Unterfalle am Ende einen Unterfall an. - Genau genommen: einen Unter-Unterfall”; the same seems to hold true for the subordinate clause in Ex 21,9 (see below).
24 So e.g. C.M. Carmichael, The Laws of Deuteronomy, Ithaca and London, 1974, 57-58 with note 7; Kessler, Sklavin als Ehefrau, 507; see also Westbrook, Female Slave, 218-219, who allows for the reading of both the Ketib and the Qere (see below).
25 So e.g. Paul, Studies, 54; Houtman, Bundesbuch, 78, 82 with note 11; Chirichigno, Debt-Slavery, 247–248; Pressler, Wives and Daughters, 158 with note 26; see also Van Seters, Law Book, 90.
26 Carmichael, Laws of Deuteronomy, 57-58 with note 7, indeed prefers reading אשר לא יעדה, who has not designated her for himself (my italics JAW)’, over אישר לו יעדה, ‚who has designated her for himself’, because the Qere would precisely contradict the ruling of Ex 21,11: “where a master must uphold the rights of any concubine he has taken and, if he fails, must release her without payment and not give her to be ransomed as in vs. 8”.
27 Pace Houtman, Bundesbuch, 82: “In jedem Fall wird gemeint sein, daß der Herr, weil die Frau ihre Funktion im Beischlaf nicht erfüllt - gebärt sie ihm keine Kinder oder widersetzt sie sich ihm (…) - die Verbindung zerbrechen will”; Van Seters, Law Book, 90:,If she no longer (my italics JAW) pleases her master who has designated her for himself …’. Chirichigno, Debt-Slavery, 248, argues that “it is unlikely that the family of the girl would have to provide redemption in this case-viz., the girl could no longer be sold as a virgin”.
28 See Paul, Studies, 54, who takes יעד to be a technical term for this type of marriage: “the purchaser [is] guilty of a breach of contract when he does not fulfill his obligation to marry her”; Chirichigno, Debt-Slavery, 248, who similarly takes יעד as technical term for this type of marriage, but emphasises that it does not indicate the actual act of marriage: “the lord breaks his contract to marry the girl”; Pressler, Wives and Daughters, 158; Westbrook, Female Slave, 219: “the purchaser fails to abide by the special purpose of the contract - if he fails either to consummate the assignment himself (qere) or to assign her for concubinage altogether (ketib)”; see also Kessler, Sklavin als Ehefrau, 507, who interprets the Ketib in the same way: “er [soll] sie, wenn er sie keinem ‚bestimmt’, d.h. zur Ehefrau gegeben hat, loskaufen lassen”.
29 K. Budde, Bemerkungen zum Bundesbuch, ZAW 11, 1891, (99-114) 99-104. The objections raised against the emendation of אשר לא יעדה into אשר לא ידעה by Chirichigno, Debt-Slavery, 248: “it is not evident that v. 8 assumes that the marriage has already been consummated (i.e. intercourse has taken place) … That v. 8 does not refer to the consummation of marriage is further demonstrated by the protasis (sic) in the same verse which provides for the redemption of the girl if the contract is broken …”, are incoherent and incomprehensive and rather support than contradict the emendation.
30 For an edition and translation of the Hittite Laws see J. Friedrich, Die hethitischen Gesetze: Transkription, Übersetzung, sprachliche Erläuterungen und vollständiges Wörterverzeichnis, Documenta et Monumenta Orientis Antiqui VII, Leiden, 1959; see also the translations offered by E. Neufeld, The Hittite Laws: translated into English and Hebrew with a Commentary, London 1951; R. Haase, Texte zum hethitischen Recht: Eine Auswahl, Wiesbaden 1984, 18–47; E. von Schuler, Hethitische Rechtsbücher, in: O. Kaiser (Hrsg.), Texte aus der Umwelt des Alten Testaments I/1: Rechtsbücher, Gütersloh, 1982, 96–123; H.A. Hoffner, Hittite Laws, in: M.T. Roth, Law Collections from Mesopotamia and Asia Minor, Writings from the Ancient World 6, Atlanta 1995, 213–247.
31 See also Neufeld, Hittite Laws, 143–146.
32 For recent editions and translations of the Code of Hammurabi see Roth, Law Collections, 71–142; M.E.J. Richardson, Hammurabi,s Laws: Text, Translation and Glossary, The Biblical Seminar 73 - Semitic Texts and Studies 2, Sheffield 200, 28–135; see also the translation offered by R. Borger, Akkadische Rechtsbücher, in: Kaiser, Texte, 39–80.
33 Pace Westbrook, Female Slave, 219 note 13, who argues that: “In order to have legal consequences, his displeasure must have some external manifestation and a concrete act (or omission)”.
34 Pace Van Seters, Law Book, 92-93, who contrasts Ex 21,7-11 with Deut 21,10-14, which deals with a foreign female slave which is a captive of war and becomes the wive of a Hebrew men, and has the right to go free without payment, in case the man is no longer satisfied with her, because he has obtained her for free, and argues that Ex 21,8 conversely awards the husband of the female slave some remuneration, because he has purchased her.
35 Pace Westbrook, Female Slave, 218, who denies the possibility of marriage, because “there is nothing in the terminology to suggest that marriage is meant … when ancient Near Eastern sources wished to indicate that a female was a wife, they did so explicitly, both in the language of formation and dissolution”. The ‚language of formation and dissolution’ in Ex 21,7-11 may, on the contrary, reflect the special nature of the ‚purchase’ marriage; see also Van Seters, Law Book, 92.
36 Pace Pressler, Wives and Daughters, 163: “Redemption and letting go free are ways of speaking about the manumission of slaves, not the divorce of a wife”; Westbrook, Female Slave, 219, who deals with the law in terms of a slave sale, and argues the other way around that a father would normally have the right to redeem his daughter, but loses that right in case her enslavement is for the purpose of concubinage - the right of redemption revives in his eyes only when the purchaser fails to abide by the special conditions of the contract.
37 The interpretation of the final clause of this paragraph is admittedly a matter of debate as may be clear from the translations offered by Friedrich, Hethitischen Gesetze, 27: ‚so kann sie ihm niemand entziehen (?)’; Neufeld, Hittite Laws, 10: ‚no-one shall surrender her’; Haase, Texte, 26: ‚so wird sie (ihm) niemand wegholen (?)’; Von Schuler, Hethitische Rechtsbücher, 102: ‚wird sie niemand herauslassen’ - “D.h. vielleicht, der Frau ihren nunmehrigen sozialen Status entziehen”; H.A. Hoffner, Hittite Laws, 221: ‚no one shall free her from slavery’. The translation and interpretation offered here come close to a suggestion made by Westbrook, Female Slave 225-226 with note 26, who considers the possibility that: “The purpose might be to distinguish a betrothal payment from a loan (my italics JAW), which would allow the recipient (her father?) a right of redemption”.
38 Pace Chirichigno, Debt-Slavery, 250 note 7, who considers the possibility that it may be difficult for a father, who sold his daughter under financial duress, to redeem her, but suggests that the financial loss would only be temporary, since the daughter can be sold to another suitor.
39 Pace Westbrook, Female Slave, 219-220, who deals with the law in terms of a slave sale, and argues that the law prohibits selling the girl abroad as that would violate her right of redemption; Van Seters, Law Book, 92-93, who assumes that the father of the girl is in no position to pay the ransom, and argues that the first buyer must allow the girl to remarry (my italics JAW) someone who does care for her.
40 See Paul, Studies, 54; Chirichigno, Debt-Slavery, 249; Pressler, Wives and Daughters, 158 note 27.
41 Pace Chirichigno, Debt-Slavery, 250, who - in flat contradiction with the syntactic analysis and the scheme he presented on p. 197 - prefers to take Ex 21,9 as an independent subordinate case parallel to Ex 21,8: “viz. from the beginning the lord designates the girl for his son”, as “it is unlikely that the agreement allowed the lord, who was unhappy with the girl, to designate her to his son”; Kessler, Sklavin als Ehefrau, 507.
42 See Houtman, Bundesbuch, 83; Chirichigno, Debt-Slavery, 250; Pressler, Wives and Daughters, 158–159; Westbrook, Female Slave, 236; but see Budde, Bemerkungen, 103: “dass (…) das weitergeben an den Sohn (…) nur solange erlaubt war, als die Gekaufte noch Jungfrau war”; idem, Aus einem Brief von W. Rogerson Smith vom 27.8. 91, ZAW 12, 1892, 162-163, who proposes to read אשר ידעה ‚If she do not please her master when he comes to know her (carnally)’, and adds: “The difficulty on this view is that the father is allowed to transfer the girl to his son. This was of course horrible in the eyes of the later Jews, and to this I ascribe the correction of the text”.
43 Pace Paul, Studies, 55; Chirichigno, Debt-Slavery, 251; Kessler, Sklavin als Ehefrau, 507
44 The parallels cited by Paul, Studies, 55, to support his suggestion, are, as Pressler, Wives and Daughters, 159, rightly argues, all construed with the word ‚city’ or the name of the city in question, and cannot be used to determine the meaning of the absolute בנות in Ex 21,8.
45 See also Pressler, Wives and Daughters, 159.
46 Pace Pressler, Wives and Daughters, 158: “when she is old enough”; Westbrook, Female Slave, 236: “while she waits for his son to come of age”, who assume that the girl is sold as a minor and the law, therefore, envisages an interim period. However, as Kessler, Sklavin als Ehefrau, 507 note 32, observes, the law does not mention such an interim period; see also Van Seters, Law Book, 91: “The [Neo-Assyrian marriage contract] quoted above assumes that as soon as the purchase is completed, the woman becomes the wife of the man for whom she is intended”.
47 Pace Paul, Studies, 52–53; Chirichigno, Debt-Slavery, 246–247; Pressler, Wives and Daughters, 153–154; Westbrook, Female Slave, 218–219.
48 See for the text and translation Lewy, Institutions, 6–8; see also the translation offered by Westbrook, Female Slave, 231.
49 Pace Houtman, Bundesbuch, 85: “In einem ansonsten ‚frauenfreundlichen’ Text ist das Recht auf Geschlechtsverkehr nicht unpassend”.
50 See the textual evidence adduced by Paul, Studies, 56–61; see also Westbrook, Female Slave, 218 note 8: “It is astonishing that the simple identification, supported by copious evidence of a banal formula found throughout the ancient Near East, has still not been universally accepted by scholars”.
51 For a recent edition and translation of the Laws of Lipit-Ishtar see Roth, Law Collections, 23–35; see also the translation offered by H. Lutzmann, Aus den Gesetzen des Königs Lipit Eschtar von Isin, in: Kaiser, Texte, 23–32.
52 Pace Paul, Studies, 56, who down plays the similarities between and Ex 21,10 and § 28 of the Laws of Lipit-Ishtar and § 149 of the Code of Hammurabi, as the latter specifically deal with a diseased wife.
53 See J. Schacht, An Introduction to Islamic Law, Oxford, 1964, 167–168; the Islamic version of the three basic necessities of life is cited by Paul, Studies, 60 note 1, but this does not lead him to reconsider his interpretation of ענה as ‚oil’ in Ex 21,10.
54 Pace Chirichigno, Debt-Slavery, 252-253, who - again in flat contradiction with the syntactic analysis and the scheme he presented on p. 197 - argues that Ex 21,11 is secondary to the three cases presented in 21,8-10, because 21,8-9 lack penalty clauses, but fails so acknowledge that similar provisions in Ex 21,2-4 - and §§ 117-119 of the Code of Hammurabi for that matter — likewise lack penalty clauses.
55 Pace Chirichigno, Debt-Slavery, 252–253; Houtman, Bundesbuch, 85–86.
56 For a recent edition and translation of the Middle Assyrian Laws see Roth, Law Collections, 153–194; see also the translation offered by Borger, Akkadische Rechtsbücher, 80–92.