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Covenants, Treaties and Contracts in the Tenach

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Covenants Treaties and Contracts in the Tenach Modern man thinks nothing of it to enter into a contract -- be it for some real estate or a business transaction -- by simply signing a piece of paper. But ancient man did not have it so easy. The contracts and treaties of today are the result of thousands of years of social development, and the forms we use today are derivatives of totally different forms used in ancient days.

We know that the Tenach (Bible) is the source for every human and divine manifestation. "Hafoch bah ve'hafoch ba de'kula bah" -- "Turn it over and over because it contains everything," says Pirkey Avot. However, it is not generally realized that the Tenach is also a history or reference book for institutions that regulate treaties, covenants and contracts. I have researched the whole of the Tenach for indications of such institutions and have found many. Here I wish to survey a few of the main forms found in the Tenach, so that future students can build on these findings.

Functions of Covenants, Treaties and Contracts

The main purpose of an agreement between two parties -- whether between G-d and His people, between an individual and a foreign king, between two nations, or between two individuals -- is to act out the transaction between the two parties that their agreement achieves. There is also a need to make the parties enforce their obligation. And, finally, it is necessary to make the agreement, and the memory of it having taken place, last as long as possible.

Eating and Drinking as Contract Form

The most basic concept of a reciprocal agreement is to make both parties join in a personal bond that they physically act out. If both partake in a meal -- where they both eat and drink from the same dishes -- the body of one of them actually absorbs the body of something that the body of the other party has also consumed. This ties them together insolubly. A clear example of this is the sale by Esau of his firstborn right to Jacob. While on the face of it, the deal was struck when Jacob handed Esau a dish of lentil soup, that was not what gave the deal contractual validity. That was accomplished through a common meal: "And Jacob gave unto Esau bread and a pottage of lentils, and he did eat and drink" (Bereishit 25:34). Perhaps Esau was not aware of the binding character of this common meal, because later -- Bereishit 27:36 -- he says that Jacob "took" or stole the firstborn right.

The amazing aspect of this form of a contract is that it was also used to seal a covenant between G-d and His people: The most sublime phase of the relationship between G-d and the Jewish people is described in Shemot, after the "Book of the Covenant" has handed by Moshe to the nation's leaders, who were allowed to ascend the mountain. There, finally, the Covenant was sealed -- with food and drink: "And upon the nobles of the children of Israel he laid his hand and they beheld G-d and did eat and drink" (Shemot 24:11). Surely the Torah would not tell us, that at that most exalted moment that a human being can reach, Moses and the elders had an urge to still their hunger and their thirst. It was clearly a format for the "contractual" relationship that had just been concluded.

The same practice is found in a political encounter between the Jews and the Gibeonites. This tribe, with impunity, feigned a desire that -- as strangers from a far-off land -- they had come to enter into a covenant with the Jews and therefore had brought bread and wine, in order to close a personal peace treaty: "This our bread we took … these bottles of wine … And Joshua made peace with them and made a covenant with them" (Joshua 12:14). Although the ruse was soon discovered, Joshua honored the peace treaty he had been "conned" into, since it was sealed with a common meal!

A political maneuver involving eating and drinking is reported in the Book of Judges: "Ga'al the son of Eved and his brethren passed through Shekham and the men of Shekham put their confidence in him … and they ate and drank" (Judges 9:26). This eating and drinking sealed a conspiracy against Avimelech, which ended badly.

Sacrificing of Animals

I stated above that there was an urgent need to give a treaty truly binding force. The mechanism used to accomplish this was to include in an agreement a blessing for him who would fulfill his obligation under the treaty and a curse for him who would violate it. In several political treaties between ancient kingdoms preserved on cuneiform tables, there is often listed a number of animals that were ceremoniously slaughtered at the time of the signing of the treaty. The accompanying words were a curse to the effect that anyone violating the treaty would die like these animals, just slaughtered, died. In some cases the number of animals involved was seven.

A close parallel to this practice is found in the treaty between Abraham and Avimelech, the king of the Philistines. Here we find "that Abraham set aside seven ewe lambs of the flock" (Bereishit 21:28). While it is not spelled out, it is very likely that these seven lambs were slaughtered in a significant and legally binding curse ceremony to fortify the treaty between the two. In fact, I have found that the word for "swearing an oath" in Hebrew reflects this very ceremony. "Hishave'a" ("to swear") means, literally, "to take upon oneself the fate of the seven." This definition seems a very strange formulation of the word unless we recognize that it originally referred to the seven animals that were ceremoniously slaughtered by Abraham as a warning to anyone violating his oath. After the ceremony of the seven lambs, the Torah tells us "and they concluded a covenant at Beer Sheva" (Bereishit 21:32) -- a reference to the "seven" ("sheva") animals, but also to the word for "oath" ("shevuah").

Isaac also went to Beer Sheva for the conclusion of the peace agreement with Avimelech. While there is no reference to the seven animals, there is mention of a common meal: "And he (Isaac) prepared a meal for them (Avimelech and his Egyptian chief of staff, Phi-Chol), and they ate and they drank" (Bereishit 26:30).

Cutting Up of an Animal or Person

A variation on the killing of seven animals to strengthen the compliance with a treaty is the covenant concluded through the cutting up of animals. In Bereishit 15:9, 10, the covenant between G-d and Abraham is confirmed through a ceremony in which a heifer, a goat, a ram and a turtledove were cut in half -- possibly the strongest accepted ceremony for establishing a convenant. An echo of this ceremony is found when Jeremiah speaks of those princes of Yehudah and Yerushalayim -- royal stewards, priests and the people in general -- who had violated the covenant with G-d, "which they made before me, when they cut the calf in half and passed between the sections" (Jeremiah 34:19).

A strange episode in the early history of the Jewish people in Israel may be explained through the ceremony analyzed above. In Judges, Chapter 20, a crime is committed in the portion of Benjamin against an unnamed man's wife, who suffers terrible assaults until she dies. Her husband thereupon cuts up her body into 12 pieces and distributes them among all the tribes of Israel to mobilize them into a military action against Benjamin. The message was: Unless you join in my campaign to avenge Benjamin's crimes, you will suffer the fate of this dead flesh.

Passing a Garment

An interesting form of invoking or breaking a covenant is found in a few places by the ceremony of tearing off a piece of a person's garment and passing it on to the other contracting party. In Shmuel 15:27, the prophet Samuel tears off a piece of Saul's garment to demonstrate that G-d's covenant with Saul is abrogated. Something similar happened to Solomon. According to Kings I, 11:30, the prophet Achiya tears a section of Jerobeam's garment into 12 pieces and urges him to take 10 of them to indicate that the kingdom over 10 tribes would be his; it was the confirmation of a covenant concluded with Jerobeam.

This ceremony resembles, of course, the act of Boaz: "And this was the custom in former time in Israel concerning the redeeming and concerning the exchanging, to confirm all manner of transactions: A man pulled off his shoe, and gave it to his neighbor, and this was the manner of attesting in Israel" (Ruth 3:7).

Since a shoe is a symbol of power and control, taking away a shoe means taking away someone's title to land or other property. The act of taking off a shoe is of course also found in the case of the brother-in-law who refuses to marry the widow of his brother: "She is to loose his shoe from his foot" (Devarim 25:9). The ceremony dramatizes the loss of rights by the surviving brother to his dead brother's wife.

Final Form of Commercial Contract

Until now, we have dealt with dramatic, symbolic ceremonies that "acted out" the entering into a covenant or contract, or abrogation thereof. But with commercial and land transaction increasing, Jews adopted more practical, every-day procedures. Jeremiah, Chapter 32, gives us a detailed report on a land transaction shortly before the fall of Jerusalem in 587 BCE. Jeremiah buys land in his native town of Anatot, by producing two contracts, one on top of the other: "Take these contracts, namely of the sealed one and the open one" (Jeremiah 32:14). In the days when clay tablets were used for written texts, one copy of the contract would be written and sealed, and then a case would be placed upon it, on the outside of which the same contract would be written again. The purpose of these "case contracts" was to avoid forgeries. In case of disputes, the judge would break open the outside "case contract" and compare it with the sealed up text on the inside text. The concern to perpetuate the memory and validity of the contract is expressed in Jeremiah 32:14, where the prophet orders the contracts placed in "an earthen vessel that they may be preserved for many days."

This procedure was modified some centuries later, when, instead of clay tablets, Jews would write their contracts on papyrus or parchment. Still the outside and the inside texts of the same contract had to be produced. This resulted in what the Talmud calls the get mequshar, of which several copies among the Dead Sea documents, including from the Bar Kochba period, have been found.

We have thus seen a long line of institutions, ceremonies, and symbols that were used to formalize covenants, treaties and contracts.

Without the many-sided and multifaceted Tenach, we would not have knowledge of the institutions used by our forefathers. Thus the Tenach is a source, in fact a textbook, in a little noticed field -- the history of contracts. My examples should serve students who wish to explore further examples and interpretations.

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