> CIVIL LAW UNDER THE LAWS OF HAMMURABI

When considering those norms of the Laws of Hammurabi, which, according to modern ideas, relate to civil law, we single out their three categories: the right to property, the law of obligations, and family and marriage relations.

> Ownership

During the reign of Hammurabi, private property reached its full development. In Babylon, there were various types of land ownership: there were royal, temple, communal, private lands. The most important source of income for the king was precisely the income from land holdings. During the time of Hammurabi, royal and temple lands were rented out to sharecroppers. The importance of the economy of the royal court was also great in the field of trade and exchange. The reign of Hammurabi was marked by the intensive development of private ownership of land, which was largely facilitated by the expansion of the canal network. Private landownership was different in scope: large landowners used the labor of slaves and farm laborers, small ones cultivated their land themselves. The development of private ownership of land led to the reduction of communal lands, the decline of the community. Land could be freely sold, leased, inherited; the sources do not mention any restrictions on the part of the community.

A special legal regime existed in relation to the property of soldiers (“Ilku property”), as mentioned above.

> Law of Obligations

The Laws of Hammurabi contain a number of articles regulating the lease of land, which obviously played a large role in the land relations of that time. The payment for the rented field was usually equal to one third of the crop. When renting on the terms of returning half of the crop, the leaser was obliged to participate in the costs or in the work of cultivating the field. The garden, which gave more income, was rented out for two-thirds of the crop. The lease was short-term (one or two years). For a longer period, undeveloped land was leased out. The laws of Hammurabi, defining the relationship between the owner of the land and the tenant, contributed to the development of the economy. If the tenant did not cultivate the land taken, then he had to pay the owner of the field based on the volume of the crop grown by the neighbors.

In addition to renting a field, a garden, Hammurabi's laws mention various types of property rent: premises, pets, carts, ships, slaves. The laws establish not only payment for renting things, but also liability in case of loss or destruction of rented property.

The contract of personal employment was widespread. In addition to workers for agricultural work, they hired doctors, veterinarians, builders. The laws of Hammurabi determine the procedure for remuneration of the labor of these persons, as well as responsibility for the results of labor (for example, the responsibility of a doctor in the event of the death of a patient).

The Laws of Hammurabi regulated the loan agreement in some detail. characteristic feature Hammurabi's legislation in this matter is the desire to limit the debtor from the creditor and prevent debt slavery. This is evidenced by the provisions on the maximum term for working off the debt (3 years), limiting the interest charged by the usurer on both cash and natural loans, and the liability of the creditor in the event of the death of the hostage debtor as a result of ill-treatment.

In the conditions of the existence of private property, both in movable and non-movable movable property, a great development was the contract of sale. The sale of the most valuable items (land, buildings, slaves, livestock) was carried out with the conclusion of a written contract (on clay tablets) with witnesses. The seller could only be the owner of the item. The sale of property withdrawn from circulation (for example, ilku property) was considered invalid.

In addition to those named, the Laws of Hammurabi know storage agreements (luggage), partnerships, measures, assignments.

Hammurabi's laws were aware of the obligations of doing harm. Responsibility is borne by the one who causes the death of a slave (the master should give a slave for a slave). The shipbuilder, who sank the ship along with the property entrusted to him for transportation, was obliged to reimburse the cost of all the dead.

> Family law and inheritance

Babylonian Law Law of Hammurabi

Marriage, according to the Laws of Hammurabi, was valid only if there was a written agreement between the groom and the father of the bride. The ransom for the bride could be replaced by many years of working off the groom in favor of the father of the bride. Family relationships built on the dominance of the husband. The betrayal of a wife was severely punished, but the Laws of Hammurabi allow her with the consent of her husband, and the case of such consent to save one's life is especially stipulated.

The wife's childlessness allowed the application of the norm used in the preparation of the marriage contract of the Tegaptilli family, found in the archive among the ruins of the house of a wealthy merchant in Nuzu. There is such a clause in the contract: “If the wife has children, the husband does not have the right to take a second wife. If she does not have children, she herself will choose a concubine for her husband from among the slaves, and she will raise the children born from this union as her own. The act of formally recognizing the son of a slave as the legitimate heir of the family was that the concubine gave birth on her wife's lap. Note that the Laws of Hammurabi still allow a married woman to have her own property, the right to divorce and inheritance.

The rather strong power of the father over the children is manifested in the ability to sell children, to give them as hostages for debts, to cut off the tongue for slandering or insulting parents. However, legislation limits this power. Thus, the father did not have the right to deprive the son of an inheritance if he did not commit a crime.

In the case of childlessness, the Laws of Hammurabi also allow the adoption of children.

The right of inheritance in the Laws of Hammurabi provides for inheritance both by law and by will, the former being the main one. Only by law could the property of the ilku be inherited. Inheritance by will existed only with certain limitations. The heirs were: children, grandchildren, children from a slave concubine, if the father recognized them as his own. At the same time, when inheriting by will, the legal norms of customary law were in effect. In the archive of cuneiform tablets from Nuzu, a will was found in which the father leaves to the eldest son the figurine of the household god and the main share of the inheritance, while other sons have the right to come to the house of the main heir and make sacrifices to the god. These images of domestic gods are also mentioned in the Laws of Hammurabi: a son-in-law who possesses such a statuette, which belonged to his father-in-law, had the right to inherit property on an equal basis with his sons.

General concepts.

1. Ownership.

2. Types of obligations.

3. Marriage and family relations.

4. Types of crimes and punishments.

5. Process.

1. The first codification of the laws of Babylonia, relating to the beginning of the reign of King Hammurabi, has not reached us.

The Laws of Hammurabi known to us were created at the end of this reign.

The collection of laws is engraved on a black basalt pillar. The text of the laws fills both sides of the pillar and is inscribed under the relief, which is placed at the top, on the front side of the pillar, and depicts the king standing in front of the sun god Shamash, the patron of the court. The exposition of laws differs in that it is done in a casuistic form, the texts do not contain general principles, do not have religious and moralizing elements. The text of the collection consists of three parts:

✓ introduction, in which Hammurabi announces that the gods gave him the kingdom so that "the strong do not oppress the weak", and also lists the benefits that they provided to the cities of their state;

✓ 282 articles of laws;

»/ an extensive conclusion.

Sources for compiling the collection were:

customary law;

Sumerian

new legislation.

2. Under King Hammurabi, private ownership of land reached its highest level of development.

In Babylon, the following types of land ownership existed: royal; temple; ✓ community; private.

The royal and temple economy was controlled by the king.

With the development of private ownership of land, communal lands were reduced, and the community declined. Therefore, lands could be freely sold, leased, inherited, there were no restrictions on such transactions by the community.

Large landowners used the labor of slaves and hired workers, small landowners cultivated their land themselves. The land allotments of the soldiers, as well as the property of the soldiers, as stated in question 9 " State structure Babylonia", were subject to a special legal regime.

3, Legislation of Hammurabi known treaties:

property lease; personal recruitment; loan

purchase and sale;

storage;

partnerships;

instructions.

An important role in the land relations of that time is played by the lease of land, therefore, in the Laws of Hammurabi there are a number of articles devoted to the lease - fields, gardens, not yet developed land.

The Laws of Hammurabi mention various types of property rent: premises, domestic animals, ships, carts, slaves. A fee is established for renting things, as well as liability in case of loss or destruction of the rented property.

With the help of a personal employment contract, agricultural workers, doctors, veterinarians, and builders were hired. Laws determine the procedure for remuneration of these persons and their responsibility for the results of their work. A feature of Hammurabi's legislation in relation to a loan agreement (both in cash and in kind) is the desire to protect the debtor from the creditor and prevent debt slavery. The laws regulated the following provisions in detail:

limiting the maximum period of debt repayment to three years; limitation of interest, moneylender;

✓liability of the creditor in the event of the death of the debtor as a result of mistreatment.

The contract of sale was also very common due to the existence of private ownership of movable and immovable property. Purchase and sale was regulated by the following provisions: ✓sale of valuable items (land, buildings, slaves, livestock) was carried out in writing in front of witnesses;

the seller could only be the owner of the thing; ✓The sale of property withdrawn from circulation was considered invalid.

The marriage was concluded on the basis of a written agreement between the future husband and the father of the bride, and was valid only if this agreement was in place.

The husband was the head of the family. A married woman had some legal capacity: she could have her own property, retain the right to the dowry she brought, had the right to divorce, and could inherit after her husband along with her children. However, the rights of the wife were limited: for infidelity (defined in law as adultery), she was severely punished; if she was barren, then the husband was allowed to have a side wife.

As the head of the family, the father had strong power over the children: he could sell children, give them as hostages for his debts, cut off his tongue for slandering his parents.

Although the law recognizes inheritance by testament, the predominant mode of inheritance is inheritance by law. As heirs were: children;

“/ Adopted children (Laws of Hammurabi allow the adoption of children);

✓children from a slave-concubine, if the father recognized them as his own.

The father had no right to disinherit a son who had not committed a crime.

5, The laws of Hammurabi do not give a general concept of a crime and a list of all acts that are recognized as criminal. From the content of codification, three types of crimes can be distinguished:

✓ against the person;

✓ property; ✓against the family.

The crimes against the person laws include reckless killing. There is no mention of premeditated murder. Various types of self-mutilation are considered in detail: damage to the eye, tooth, bone. Separately, the infliction of beatings is noted.

Among the property crimes, the laws call the theft of livestock, slaves. Robbery and harboring slaves are considered crimes other than theft.

The laws consider adultery (unfaithfulness of the wife, and only the wife) and incest as crimes that undermine the foundations of the family. Also criminal were actions that undermined paternal power. The purpose of the punishments provided for by the Laws of Hammurabi was retribution, which determined their types. The main types of punishments were:

the death penalty in various forms - burning, drowning, impalement;

self-mutilating punishments - chopping off a hand, cutting off fingers, tongue, etc.;

✓ fines; exile.

determining the punishment for crimes committed against a person, the legislator was guided by the "principle of talion" - "measure for measure", when the guilty person was assigned the same fate as the victim.

Punishments for property crimes were the death penalty, mutilation, or a fine many times the value of the stolen property. If the fine was not paid, the perpetrator was executed. Crimes that undermine the foundations of the family were also punishable by death (for adultery) or self-mutilation - for example, cutting off the hand of a son who hit his father.

6. Conducting trials in criminal and civil cases was carried out in the same way and began on the complaint of the injured party. Testimonies, oaths, as well as ordeals (for example, a water test regulated by the legislator) served as evidence. According to the rules of procedural law, the judge was obliged to personally examine the case. The judge could not change his decision under the threat of a large fine and deprivation of office without the right to return to it.

A basalt pillar, covered on all sides with cuneiform writing - the oldest set of laws on earth; was compiled in the reign of Hammurabi, king of Babylon, in the 18th century BC. e. Hammurabi himself is depicted at the very top of the pillar. He stands in front of the throne, on which the supreme god of Babylon, Maarduk, sits. In the hands of Hammurabi, a rod is a symbol of judicial power, handed over to the king by God himself. The desire to present laws emanating from God - so they tried to give them great power. The legal code of Hammurabi consists of 282 articles. Completely preserved 247.

For the most common transactions, such as purchase and sale, the Lawyer provides for three conditions for validity: that property is not withdrawn from circulation (for example, ilku - the land of soldiers); that the seller be the real owner of the thing and be able to guarantee the new purchaser against eviction, that is, the claim of the sold thing by its real owner; that the execution of the transaction takes place in the presence of witnesses.

Lack of land (due to population growth and the plunder of communal land) caused an extraordinary spread of rental relations. Lease terms were difficult due to the high demand. The tenant paid the owner a certain share, independent of the harvest: 1/3 or 1/2 of what the field can bring.

The terms of the loan agreement were not the best. %% was 20 per annum for loans and 30 for a grain loan. Taking care of securing the debt, the creditor had the right to demand as a pledge the field cultivated and sown by the debtor. Fulfillment of obligations was indispensable for both parties. Only with their mutual consent was it allowed to "moisten the contract" - to soften the clay on which it was written, to erase the unnecessary, to enter the new.

In the ancient Babylonian family, the husband dominates. He leads the general household of the family; represents it in business relations; he has the right to dispose of his wife and children. In cases of extreme need, the father has the right to sell his children to anyone who wants to buy them. A wife who "dishonors" her husband or "squanders his property" is allowed to be "rejected" and driven out of the house. It is in the power of the husband to leave her in the house in the position of a slave and marry a second time. A childless wife can give her husband a concubine, while remaining the mistress of the house. But the husband in this case has the right to divorce. There are two principles: freedom of divorce for the husband and restriction of the right to divorce for the wife (only three legal grounds for divorce: the husband's adultery; leaving his home and place of residence; unfounded accusation of adultery). The wife has the right: to dispose of her property acquired by her in marriage: received by inheritance, donation, etc.; conclude purchase and sale transactions and loans, make money, acquire land, slaves. The husband was forbidden to squander his wife's property or dispose of it without her consent.

There are two types of inheritance - by law and by will.

The lawyer Hammurabi speaks mainly of legal inheritance. Testamentary liberty is still in its infancy. The father has the right to refuse his son the inheritance, but not arbitrarily, but as a punishment for a "serious sin", and even then with the permission of the judges who are investigating the case. Children inherit equally: sisters receive as much as brothers. The share of the deceased son is received by his children. Adopted children inherit on an equal footing with "legitimate" children. Children adopted from a concubine inherit if the father recognizes them as his own (and only movable property).

Laws of Manu

The laws of Manu consist of 12 chapters and 2685 articles. The main thing in the Laws of Manu is the consolidation of the existing varna system. A feature of the Laws of Manu is the religious coloring of all its provisions.

Ownership . Laws indicate 7 possible ways the emergence of property rights: inheritance, receiving in the form of a gift or find, purchase, conquest, usury, performance of work, as well as receiving alms. Another way of acquiring ownership was the prescription of ownership (10 years). Among the main types of property, the Laws name land (it was royal, communal, private). For misappropriation of someone else's property (someone else's plot of land) a heavy fine was imposed. The Laws of Manu also protect movable property. The most significant of it was: slaves, cattle, inventory.

Commitments . Obligatory relations have received a rather thorough development in the Laws of Manu. Basically, the Laws refer to obligations from contracts, for example, a loan, lease, land lease agreement.

The sale is one of the contracts mentioned in the Laws of Manu. The contract was considered valid if it was made in the presence of witnesses and the owner of the thing had to act as the seller. Within 10 days after the purchase and sale, the transaction could be terminated without any good reason.

Mentioned in the Laws of Manu is a donation contract. The transaction is terminated in the same way as it is concluded.

The laws of Manu also knew the obligations of harm. Damage to property, damage caused by the movement of a wagon around the city is called as a basis for the emergence of such an obligation. At the same time, the perpetrator had to compensate for the damage caused and pay a fine to the king.

Marriage and family relations . Ancient India is characterized by a large patriarchal family. The head of the family is the husband. The laws of Manu define the position of a woman as follows: in childhood she was supposed to be under the rule of her father, in her youth - her husband, after death - under the rule of her sons, for "a woman is never fit for independence." The laws of Manu directly require a wife to honor her husband as a god. A husband could have several wives, divorce his wife. The wife could not leave the family, even if her husband sold her and left her, she continued to be considered his wife. For adultery, the wife was subjected to terrible punishment, up to the death penalty. Inheritance by will ancient Indian law did not know.

Criminal law and process . Among the crimes called the Laws of Manu, in the first place are state ones (serving the enemies of the king, breaking the city wall, city gates). The Laws describe crimes against property and against persons in more detail. Among property crimes, the Laws pay great attention to theft. The measures applied to the thief depended on whether he was detained at the scene of the crime or not, whether the theft was committed during the day or at night. Caught with stolen goods and thieves' tools Laws prescribe execution.

Intentional homicide entailed death penalty. Killing in defense of oneself, protection of women and brahmin (necessary defense) was not punished.

The punishment depended on the affiliation of the perpetrator and the victim to Varna. Among the types of punishment should be called the death penalty (for a Brahmin, it is replaced by shaving the head), self-mutilating punishments (cutting off fingers, hands, feet); fines, exile, imprisonment and more.