representatives of the creditor tell die debtor that the "Gestellungsbürge" shall be "answerable to us" (lēpulniāti) for bringing him back.
The verb katä'um, notwithstanding the meaning of some dériva-
tives in |
other periods |
of Akkadian, |
does not refer to guarantee but |
|
to distraint |
(see below |
IV.3 with note 148). |
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The |
verb |
ka'unum, contrary to the |
translation ("feststehend/ortsbe- |
|
ständig machen") and comments in EL on text 184, does not refer to "Gestellungsbürgschaft,"38 but to "proving" or "confirming" a liability.
2. Guarantor and. Creditor
The frequent expression "to register as guarantor" (see II. 1.1 above) shows that it was customary to record in writing that a particular person was guarantor, and this is reflected in debt-notes (and excerpts from them in memoranda), which mention the name of the guar-
antor ("PN is guarantor"). |
The guarantor accordingly had to seal |
the contract as proof of the |
acceptance of his liability, as is shown |
by the presence of his seal impression on a few debt-notes still encased in envelopes.39 That only a relatively small number of debt-notes (thus far about twenty) mention a guarantor, shows that only a limited number of loans were secured by guarantors right from the beginning. We can only guess why, since the short debt-notes normally tell us nothing about their background. See for a possible explanation the observations made in 1.4 above.
Debt-notes also do not tell us what the liabilities of a guarantor were. This must have been familiar from customary law and they are illustrated by references in judicial records and letters which show that a guarantor had basically two obligations. In the first place, he had to see to it that the debtor was available to the creditor when the debt matured for collecting payment or taking measures against
him if he defaulted. This obligation, called |
"Gestellungsbürgschaft" |
by German scholars, is attested in a group |
of records in which the |
38 This idea has influenced Lutzmann 1976: 26, § 44, where, with an indirect reference to Old Assyrian, its Sumerian equivalent g i η is also, in my opinion incorrectly, claimed for "Gestellungsbürgschaft."
39 Seal impressions of guarantors on A T H E 5 5 : 6 3 7 5;65־;K K S 8; 13; kt 89/k
307.
anything, lie keeps holding me [by the hem of my garment and tries to 'give me for] guarantee'."41
Similar records are 0 3684;42 ICK 1, 86 + 2, 141; EL 238 (see note 33); TPK 1, 171;43 kt a/k 300 (unpubl.); kt 89/k 352 and 419 (both courtesy Y. Kawasaki). The last one reads:
Ilabrat-bani "gave" Šu-Išhara "for guarantee." Ilabrat-bani said: "Tomorrow you shall bring back the man. If you do not bring (him) back, you shall pay to me ten pounds of silver with its interest, which he owes to my father in the City according to his valid debt-note (tuppum harmum), a tablet which belongs to me, my mother and my sister on the basis of my father's testamentary disposition. I went to him (the debtor) for the ten pounds of silver and the interest on it, but he (said): "You, although I do not owe you anything, either in the City
01־ in Anatolia, you hold me by the hem |
of my garment and try to |
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'give me for guarantee.' Bring me proof in |
the presence of these per- |
|
sons here, |
whether my father or I myself are indebted to you. What |
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else can I |
say?'44 |
|
These records are of two types. The first and basic type is a contract, before witnesses, between C and G, starting with the statement that C "gave" D "for guarantee" to G, followed by C's address to G and the latter's acceptance of his liability. It is attested in EL 306, I 478, kt a / k 300, and kt 89/k 352, all of which mention C,45 D and G by name. EL 306 includes the protest of D, who denies his debt and may appeal to the court (end broken), whereas in the other texts D only figures as object. Kt 89/k 419, which does not mention G by name, nor his reaction to C's request,46 probably was a draft, drawn up by C when he intended to approach G, and might have served as the basis for a record comparable to EL 306.
The second type, represented by EL 238, ICK 1, 86+, TPK 1, 171 and Ο 3684, is a deposition. The report on the agreement between C and G occurs in the framework of a testimony given by people who had been "seized" as witnesses by C when he tried to reach
41 |
Read in lines 20ff.: [lá ha-b]u-tá-ak-íu-ni-/ma |
21 \si-ki] |
uk-ta-/[n]a-lu-ni |
23 |
[ú a-nd\ |
|||||||
ία qá-ta-/tim |
[i-ta-na-di-ni] . |
(cf. T C 3, 28:24ff.; |
I C K 2, |
141:29ff.). |
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42 |
Garetö |
1987: 11 Of. |
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43 |
Misunderstood by the editors, see Dercksen |
1997/8: 338, |
but problems |
remain |
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for lines 15ff. and note that |
D is absent and that in line |
13 |
G starts to speak. |
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44 |
Lines 24ff. mahar annén ru'amma |
rmiiam aqabbe. |
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45 |
In I 478 C is the scribe/secretary, who represents |
the |
Assyrian |
authorities, |
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because |
the |
debt is a |
fine |
imposed |
by the City. |
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w |
It |
adds |
a report |
on |
C's |
earlier |
summons of |
D with |
the |
latter's protest. |
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an agreement as recorded in the contracts of type one. This testimony was given when the agreement had been frustrated or D had objected and the case had ended up before a kämm-court. Such a court usually started its proceedings by hearing (recorded) testimonies from those who had witnessed the earlier confrontation. Its final lines state that this testimony was given under oath, because "the kārum (court) had given us for this affair."
According to these records the obligation of the guarantor is "to bring back"47 the debtor, who is occasionally designated as "my
man."48 ft can be taken literally, |
if we assume that the debtor |
stayed |
||
or intended |
to go elsewhere, |
but we can also translate "to turn/hand |
||
over." The |
verb also occurs |
in |
EL 188, where an Anatolian |
guar- |
antor, who had obtained the release of a debtor, since he could only promise payment of half the debt (in two annual instalments), "turned over" (uta'er) the debtor to the son of his (by now dead?) creditor.49 The meaning of ta'urum in our texts cannot have been different from that of abākum, "to bring along" (frequently followed by nadānum, "to hand over, deliver"), current in neo-Babylonian guarantee contracts. Most texts state that "handing over" has to be done "tomorrow"
(unam), but Ο 3684 has "within one month." If we take "tomorrow" literally, the action would have taken place only one day before the due date, which is rather late; hence rather "presently," "in the near future."
Securing the availability of D to C at |
the due date was impor- |
tant because debtors in difficulties might |
try to flee or, more likely |
in a society of overland traders, might (have to) leave on a business journey. In the letter CCT 3, 8b:1315־ a D, who has received goods on consignment (qīptum) from his C, is afraid that the latter "will require a guarantor (ša qātātim) from me when I am to leave on a
journey, which would put me to shame." EL 238, ICK 1, 86+, and |
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kt 89/k 419 show that debtors whom |
a creditor wanted "to give for |
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47 |
EL 238 stresses the duty of the guarantor by writing |
"You shall not |
fail to |
|
bring my man back!" in Assyrian by adding a |
paranomastic |
infinitive to the |
finite |
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verbal form. |
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48 |
Cf. the designation amēlūtī for the debtor |
in texts from Emar. |
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49 |
See for the verb also the damaged record |
EL 297, where an Anatolian |
debtor |
|
asks his guarantor, |
who wants to exercise his right of regress by "turning him over" |
(to the creditor?), |
not to do so, but to take along "his boys" (children, slaves?) |
and to sell them. EL define the verb as "die Verbringung einer Person oder Sache an den eigentlich Berechtigten, namentlich nach Wegfall eines anderen Rechts" (1:273).
guarantee," were actually prevented from leaving. They complain of being "held by their hem'5 (sikki D kcÎulurn) by a creditor who, according to EL 238:5f., will only "release" (waššurum) them if a guarantor
has |
been |
provided |
(ša qātātim sazz.uz.um). |
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While |
in |
nearly |
all |
cases G's |
obligation is |
to |
make |
D |
available |
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for |
payment |
(and |
if he |
fails, to |
pay for |
him), |
EL |
238 |
is |
an excep- |
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tion. Two representatives of C, after D has provided a guarantor,
address |
D as follows (lines 1020־): |
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He (the guarantor to be appointed) shall not be answerable to us for |
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the silver (ana kasfiim lā eppalniāti), |
he shall be answerable to us (only) |
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for |
bringing you back, so that we |
can have you transferred here |
in |
accordance with the verdict of kārum Kanish. Even if you wish to |
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pay us silver 01־ gold, we will not take it, we will bring you to court |
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(niraddekd). |
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As stated above, 1 see no reason to |
consider ša qātātim a specific |
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term for "Gestellungsbürgschaft," but |
this role may be fulfilled by |
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the verb tadānum, "to give, to hand over," with the creditor as sub-
ject. "To hand over a debtor to a guarantor" |
is |
more |
comprehen- |
sive and concrete than "to make a guarantor |
pay for |
the debtor"; |
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it indicates that the guarantor acquires a grip |
on |
the debtor, hence |
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the use in Ο 3684 of "entrusting (paqādum) the debtor to a guarantor." This makes the expression as a whole suitable for "Gestellungsbürgschaft," which implies that the guarantor has power over the
debtor and acts in the interest of |
the creditor, who accordingly |
is |
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the subject of |
the |
action. |
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2.2. Paying for |
the |
debtor |
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Most texts mentioned thus far state |
that the guarantor, if he fails |
to |
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meet his obligation as "Gestellungsbürge" has to pay D's debt. Some do it by quoting the short dialogue between creditor and guarantor,
in which |
the |
latter accepts his liability: "I will pay" (EL |
306:13; kt |
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a/k |
300; |
kt 89/k |
352), "I |
will be responsible |
to you |
(for |
the debt)" |
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(O |
3684:26). |
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Describing |
the |
liability |
of the debtor taken |
over by |
the |
guarantor |
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in some detail—its exact amount, background and written evidence—
was useful in order to prevent later problems. In EL 306 |
the debt |
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is specified as a sum of |
silver |
as recorded in a "valid deed |
(deposi- |
|
tion) of my witnesses," |
in kt |
a/k |
300 a large amount of |
copper, |
qualified as "a balancing payment |
owed at 60% interest," |
in TPK |
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