Alienation of property might be complete or partial. Of complete alienation we may instance donation, sale, exchange, dedication, testament. The latter was rarely complete in Babylonia. Examples of partial alienation are loan, lease, pledge, deposit.

We may note as a common mark of all these transactions the care taken to fix and define ownership. The transfer is “from” A to B. In early times the property is usually first stated to belong to A. Then he is often said in Assyrian times to be the bÊlu of it, its full and legitimate owner. The new owner had to be satisfied that A was competent to part with it. This is often made clearer by saying, in later times, that no one else has any claim upon it. Hence arise guarantees against defeasor, redemptor, et cetera. This subject of guarantees is most interesting, though often obscure. The investigation of the varied rights which were likely to interfere with freedom of transfer is most important.

In certain cases we shall find a sort of hypothecation of property, as when it is assigned as security, but not given up. The possession is not free, but it is not alienated. We have also a donatio retento usufructu, which only gives a reversion of the property. Here also certain rights may be reserved against the ultimate possessor.

Another interesting point is that property may be credited to a man, and set off against other liabilities, so that he [pg 219] may never actually be in possession, but only nominally passing it on to others, and even, eventually, it may come back to the first owner, who may never part with it at all.

Undoubtedly men were at liberty in daily life to make presents one to another. But the rights of the family were so strong that for the most part all the property of the parents was jealously regarded as tied to the children, or other legal heirs. When a man died, his property was divided according to a rigid law of inheritance. When a woman left her father's house to be married, the father gave her the share of his goods which fell to her, without waiting until his death to divide his substance. In this case she had nothing further at his death. But the property was not her husband's, though he and she shared its use; it was entailed to her children. If she had none, it went back to her father's house: to her brothers, if she had any, or to her father's other heirs. Unless a man legally adopted his natural sons, they did not inherit. Hence neither man nor woman was wholly free to give. But, hedged about with consents and reservations, donations took place.

We have a great variety of types of donation, not always easy to classify, and often obscure, in some details. The common characteristics are that deeds of gift were duly executed, sealed, and witnessed; and that the consents of the parties, whose expectations were thus diminished, or restricted, had to be obtained.

A daughter might be portioned off for marriage and this involved a gift, which might be treated as a donation, but rather comes under the head of marriage-portion, in the chapter on marriage. Precisely the same portioning took place when the daughter either became a votary or was dedicated to the service of a god. Such gifts may be included here. They usually contain a list of property: sharing houses, land, slaves, jewels, money, clothes, household furniture, [pg 220] even pots of honey or jars of wine. As a rule, in our present state of knowledge, nothing that could pretend to be an accurate translation can be given of the items of such a gift, only a general idea of the nature of the whole. Such a gift, however, evidently set the lady up in an establishment of her own, with all she could require for maintenance and comfort for the rest of her life.

Here these donations split up into separate classes. The recipient might have only a life interest in her gift, or it might be hers outright. The latter case could not be presumed. The heirs of her parents, “her father's house,” would maintain their claim at her death, unless they had specially contracted to waive it. Then the clause was inserted that she might “give her sonship to whomever she pleased,” aŠar eliŠa tÂbum aplÛtsa inadin.555 By “sonship” is meant “heirship.” Such cases do not seem common and are probably to be explained as due to the fact that as a votary she had no legitimate heir. It is important to note that there is no hint that, if she died without heirs, the temple would inherit.

A modified freedom is allowed by a father who gives his daughter house, land, sheep, slaves, and the like, but limits her power of gift to her brothers. But among them she may “give it to him who loves and serves her.”556 It is assumed that one of her brothers will care for her and manage her estate and be rewarded by the reversion of it. As a rule, it is only a life interest which the recipient has.

A different sort of gift is where the donor reserves to himself a use of the property as long as he lives, or stipulates for a life allowance from it. These are usually accompanied by formal adoption. The recipient is one who has not already a claim to inherit, but undertakes the care or maintenance of the donor. Such gifts are best classed under [pg 221] adoption, even where the fact of adoption is not stated. When a parent makes an arrangement of this kind with a son or daughter, these were possibly adopted by a previous act. At any rate, it seems likely that such a child was either unmarried or again free to wait upon the donor. But whatever the actual state of relationships, we find a mother giving property to a daughter, reserving the use of it as long as she lives.557 Similarly a brother undertakes to give one shekel per annum to his brother. Here the grounds of the undertaking are not stated, but a contract to do this is duly sealed and witnessed.558 Further, maintenance is stipulated for, though the relationship is not stated, nor grounds given. This may not be based upon a gift, but follow the order of some judge, for other reasons.559

The husband might settle upon his wife a fixed amount of property. This was frequently done and was called the nudunnu. It might include a house, two maids, clothes, jewelry, and household furniture.560 Here the sons are expressly said to have no claim, she may give it to whoever serves her and “as her heart desires.” Probably she was a second wife without children, and is thus secured a life of comfort and the faithful service of her step-sons. As a rule these gifts are best considered under the head of marriage, but they were also free gifts on the donor's part. The wife in any case had her right to inherit with her step-sons, if her husband made no such settlement.

The consent of the legal heirs of the donor to such alienation of their reversionary rights was needed. Thus in one case, when a man gives his daughter a house, his son appears as the first witness.561 A father and his son give their daughter and sister a house, which she is free to give to her son, “whom she loves.”562 Had the house merely come to [pg 222] her as her share in the usual way, it must have been shared by her sons. If she had none, then her brother would be the next heir. That she can leave it as she will must be a matter of legal instrument. The brother must consent to the exception to the rule.

In Assyrian times, donation is rarely represented within the group of documents which have reached us. Here is one case:563

This may be donation, or adoption, or even a marriage-portion.

At all times, a difficulty arises from the phraseology of the deeds of gift. When we are told that “A has given B such and such things,” we do not know the ground of the gift. “To give for money,” nadÂnu ana kaspi, is the usual expression for “to sell.” In the older documents ŠarÂ?u, “to present,” often occurs, but has in most cases the derived technical sense “to dower,” or “give a marriage-portion.” Hence, we are not able to judge whether what appears as “gift” may not really be “a sale,” or some payment meant to complete the portioning off of a daughter, on marriage or taking vows.

There are, however, a large number of deeds of gift which have reached us from the Second Babylonian Empire. The characteristic formula may be taken to be ina ?Ûd libbiŠu iknukma pÂni uŠadgil, “in the joy of his heart (i.e., of his own free will, implying that no consideration was taken per contra) he has sealed and placed at the disposal [pg 223] of.” As a rule, we may suspect these to be “gifts” to which the recipient had a right. Thus, mother to son,564 brother to sister,565 man to wife and daughter,566 mother to daughter,567 are not free from suspicion. But when a man gives maintenance to wife and son,568 brother gives dower to sister,569 father-in-law gives son-in-law arrears of his daughter's dower,570 and wherever there is a hint that the “gift” was a nudunnÛ, or a Šeri?tu, we may regard the case as not properly “donation,” but “dower.”

The following example shows the limitations on free gift that still remained in later times.571 ZÊrÛtu had married and had a son, ShÂpik-zÊri. Then he had an intrigue with NasikÂtum, daughter of the Sealand scribe, who bore him a son, BalÂ?u. He gave BalÂ?u a house, but did not adopt him. After ZÊrÛtu died, ShÂpik-zÊri demanded the house as his father's heir. The judges gave it to him and also the deed of gift.

The dedication of land to a temple or of a child to the service of a god may be considered as examples of free gift; but they are of a nature deserving separate consideration. We have already noticed some cases of such donations by the kings. We know from the Code that a father might dedicate a child as a votary,572 and he might portion that child; but this did not bring a free gift to the temple, for the family had the reversion of the votary's property.

As a further example of dedication by a private owner, we may take the following:573