LEGAL MODELS FOR THE OLD TESTAMENT COVENANTS:
An Issue of Contract or Real Property Law?
Cordell P. Schulten
The covenants set forth in the Old Testament express God’s relationship with his people. A proper apprehension of the formulation of these covenants is, therefore, critical to a thorough understanding of that relationship. Old Testament scholars have focused upon the Hittite suzerain-vassal treaty and the Babylonian royal land grant as cultural contexts in which God expressed his covenants with his people.1 While such scholars as Mendenhall, McCarthy and Weinfeld have analyzed examples of these two legal models in the ancient texts and have applied their respective component parts to explain features of the Old Testament covenants, some have confused the concepts of contract and real property law in the process of their analysis and application. In this paper I contend that applications of both the suzerain-vassal treaty and the royal land grant as models for the Old Testament covenants are better understood in the light of principles of real property law rather than the law of contracts.
Principles of Contract and Real Property Law
Before undertaking an analysis of the treaty and grant models, a brief explanation of the fundamental concepts of and distinctions between contract and real property law will prove helpful. Both contract and property have been foundational virtually to all ordered societies throughout recorded history. While refined over the centuries, the essential rules of both contract and property law have remained for the most part constant. Therefore, even contemporary articulations of these legal themes provide a valid definitional basis for consideration of ancient judicial formulae.
A succinct description of the fundamental elements of contract is set forth in the American Law Institute’s Restatement (Second) of Contracts. "A contract is a promise or a set of promises for the breach of which the law gives a remedy or the performance of which the law in some way recognizes a duty."2 The essence of contract is promise. A legally enforceable contract requires (1) an agreement (i.e. "offer and acceptance" or "a meeting of the minds"), (2) consideration (i.e. something of legal value given in exchange for the promise expressed in the agreement), (3) capacity (i.e. the legal and factual ability of the parties to understand and enter into the agreement), and (4) a legal purpose. Hence, contract presupposes a bargained-for exchange between parties possessing the ability to perform the promise or promises made.
While contract is founded upon promise, property law is based upon right, or more accurately, a bundle of rights. Modern notions of real property law developed from feudal enfeoffment. Blackstone, in his Commentaries on the Laws of England, has stated: "[I]t became a fundamental maxim and necessary principle . . . of our English tenures, ‘that the king is the universal lord and original proprietor of all the lands in his kingdom; and that no man doth or can possess any part of it, but what has mediately or immediately been derived as a gift from him, to be held upon feodal [sic] services.’"3 The grant of rights in the land derived from the sovereignty of the king. The rights granted included title (i.e. ownership), possession, use and alienation (i.e. the ability of the grantee to transfer his rights to others).
Having now a conceptual understanding of the principles of contract and real property law, we may progress to an evaluation of the legal models for covenants in the Old Testament. Since the expressions of covenant are frequently articulated in terms of promise, a tendency to confuse the covenantal relationship with a contractual one can often occur.4 When, however, both the suzerain-vassal treaty and the royal grant models are viewed in the light of the distinguishing aspects of contract vis-a-vis property, there emerges a pattern demonstrating that the covenantal formulations are more closely akin to concepts of real property than to contract law.
The comparison of the Old Testament covenants to ancient treaty formulations is a relatively recent development in Biblical scholarship. In 1954, G.E. Mendenhall was one of the first scholars to analogize the structure of the Sinai covenant with the suzerain-vassal treaties of the Hittites from the fourteenth and thirteenth centuries B.C.5 Mendenhall delineated striking similarities between the six-part treaty formula and both Exodus 19-24 and the entire book of Deuteronomy.6 While this analogy between the treaty model and the Sinai covenant was indeed valid, subsequent scholarship, as represented by the work of D.J. McCarthy, has erroneously extended the treaty model to encompass contract law concepts.7 In response to McCarthy, G.M. Tucker, however, argues that "the OT covenant did not arise in the sphere of Israelite life which required and produced contracts."8
Instead of a contractual agreement, both the OT covenants and the suzerain-vassal treaty are formulated upon the essential element of oath.9 "The covenant between Yahweh and Israel . . . is described as an oath, and the conclusion of that covenant as swearing."10 The parallel between covenant and oath is expressly set forth in Deuteronomy 29:12, ". . . a covenant the Lord is making with you this day and sealing with an oath." Likewise, the suzerain-vassal treaty included an oath section calling upon the gods as witnesses. For example, "Let these [gods] be witnesses to this treaty and to the oaths."11
In contrast to this covenant-oath formulation, contract is not premised upon oath, but merely upon mutual assent to a promise – a meeting of the minds supported by consideration. For example, Genesis 18 reflects the contract concepts of promise of performance or promise of conveyance in Abraham’s purchase of the field of Ephron the Hittite.12 Although the subject matter of this contractual transaction is real property, the structure and form of the agreement recorded in Genesis 18 parallels the pattern of typical Akkadian and Old-Babylonian sale contracts.13 Both the Biblical example and the contract formulations of these ancient cultures demonstrate that the activating principle of contract was mutual agreement rather than oath.
In light of the distinction between covenant-oath and contract-agreement, we may conclude that the suzerain-vassal treaty model for the covenants is not founded upon concepts of contract law. As Tucker further observed, "The covenant, solemnized by a conditional self-curse, did not require witnesses or the apparatus of the court. The contract, on the other hand, was not a sworn statement, but a document – or an oral agreement – witnessed by outside parties."14 Instead of an agreement imposing duties of future performance, both the Old Testament covenants and the treaty model constitute a pledge by the greater to the lesser granting the lesser rights. Thus, having distinguished treaty model for covenant from contract principles, we must look to real property law in order to find a more consistent legal framework in which to understand the Old Testament covenants. The application of property law concepts becomes even more evident as we turn our consideration from the suzerain-vassal treaty to the royal land grant model.
Royal Land Grant
The royal land grant model is principally based upon the Babylonian kudurru documents. Weinfeld noted the contrasts between the grant and treaty models, stating: While the "treaty" constitutes an obligation of the vassal to his master, the suzerain, the "grant" constitutes an obligation of the master to his servant. In the "grant" the curse is directed towards the one who will violate the rights of the king’s vassal, while in the treaty the curse is directed towards the vassal who will violate the rights of the king. In other words, the "grant" serves mainly to protect the rights of the servant while the treaty comes to protect the rights of the master. What is more, while the grant is a reward for loyalty and good deeds already performed, the treaty is an inducement for future loyalty.15
With this distinction in mind, both McCarthy and Weinfeld concluded that the Sinai covenant is modeled upon the treaty and that both the Abrahamic covenant of Genesis 15 and the Davidic covenant of 2 Samuel 7 are formulated according to the grant model.16 But, just as McCarthy had failed to distinguish between treaty and contract, Weinfeld fails to distinguish between "grant" and "promise" when he asserts that "In a . . . grant we find a similarity even in formulating the commitment to keep the promise to the descendants of the loyal servants."17 (emphasis in the original). Rather, the commitment in the grant formulation is better expressed as a commitment to observe faithfully and honor the rights conveyed by the grantor to the grantee and his descendants. Hence, the Prophet Micah proclaimed, "You will be true (`emeth) to Jacob, and show mercy to Abraham, as you pledged on oath to our fathers in days long ago."18
In spite of his technical, legal imprecision, as noted above, Weinfeld correctly states that "the legal formulae expressing the gift of land to Abraham are identical with the legal formulae of conveyance of property in the ancient Near East. Especially instructive in this case are the formulations of conveyance in perpetuity."19 Some scholars have suggested that the royal land grant "may be conceived as reflecting a feudal privilege, much like enfeoffment. . . or else it presupposes a system in which the entire land is considered the king’s property."20 While evidence for both conceptions of grant is present in the ancient legal documents, the ambiguity may have been intended in order to accommodate "both early feudal notions of the relationship between Yahweh and Israel and parallels to notions of ancient Near Eastern property law that had taken hold in Judah."21 Following the model of the kudurru documents and the principles of Babylonian law, the royal grant provides the basis upon which the grantee, Israel, is authorized to take possession of the "given" territory once title (i.e. the right of ownership) has been conveyed by Yahweh as king.22
Unlike a contract for the sale and purchase of real property, as illustrated by Abraham’s transaction with Ephron the Hittite in Genesis 18 and discussed above, "the kudurru was a legal document recording the exchange of property.23 A duplicate tablet was usually made that also registered the legal change of ownership.24 "This tablet was the official title-deed for the new property owner . . . . [T]he kudurru could have been used as legal evidence proving ownership if the tablet was lost or broken. The kudurru-stone also served to place the newly acquired property and attendant rights (e.g. tax or corvee exemptions) under divine sanction and protection by means of the concluding curse formulae in the inscription. So the kudurru confirmed the recipient’s legal title to the land and protected it from encroachment by calling upon the gods as witnesses and invoking their powers of judgment against any transgressor of the grant."25
Applying these concepts of ancient property law to the OT covenants of God with Abraham and David, we may conclude that these covenants conveyed title, possessory and use rights to the grantees and their descendants in perpetuity. These rights were not conditioned upon future performance by the grantees or their descendants. Rather, the entitlement to the benefits was dependent upon the intention and capacity of the grantor. Had contract notions underpinned these covenants then enjoyment of the promised benefits may have been limited to either fulfillment of conditions precedent or avoidance of conditions subsequent by the promisees. A condition precedent is an action that must be undertaken by the promisee before the obligation of the promisor to perform arises. On the other hand, a condition subsequent is the occurrence of a proscribed action by the promisee that releases the obligation of the promisor to perform. Such conditions are not present in property conveyances of title, possessory and use rights in perpetuity.
Finally, although reference to promise in the Abrahamic and Davidic covenants may suggest contract law principles, both of these Old Testament covenants are better understood by analogy to the kudurru grants of property rights. The distinct formulation of these covenants in contrast to the Sinai covenant demonstrates that the royal land grant is the more appropriate model. Unlike the treaty, the royal grant is principally a transfer of real property. Therefore, there is little support for construing either the covenant of Genesis 15 or the covenant of 2 Samuel 7 in terms of contractual obligations arising out of promises and conditions upon performance of those promises. Rather both of these Old Testament covenants are expressed in terms of a conveyance of rights that are granted to the recipients as a consequence of the intention and capacity of the grantor.
The significance of understanding the Old Testament covenants in terms of real property law concepts should not be lightly regarded. Whether modeled after the suzerain-vassal treaty or the royal land grant, the covenants do not merely express promises of future performance. Instead, the covenants are grants by God to his people of rights that provide a basis for both their relationship with God and their fellowman. Rights are not, in the first place, intrinsic. Rather, they are an endowment by the greater to the lesser. Conveyances of property rights, in particular, depend wholly upon the validity and enforceability of the interests of the grantor. The intention and capacity of the grantor determines the transfer of rights to the grantee. In the case of the Old Testament covenants, God is the grantor. His sovereign purpose is the intention that activates the covenant grant. His sovereign reign over all creation constitutes the capacity that enables the covenant grant. Therefore, the rights conveyed by the covenant grant are indefeasible.
1. Theological Dictionary of the Old Testament, vol. 2, pp. 266-269, 270-271.
W. Blackstone. Commentaries on the Laws of England, Oxford, 1698.
A.E. Hill. "The Ebal Ceremony as Hebrew Land Grant?" JETS 31:4 (1988), 399-406.
K.A. Kitchen. Ancient Orient and Old Testament, Inter-Varsity, 1966.
D.J. McCarthy. "Covenant in the Old Testament," CBQ 27 (1965), 217-240.
G.E. Mendenhall. "Covenant Forms in Israelite Tradition," BA 17 (1956), 50-76.
Restatement (Second) of Contracts. American Law Institutes.
Theological Dictionary of the Old Testament.
G.M. Tucker. "Covenant Forms and Contract Forms," VT 15 (1965), 487-503.
M. Weinfeld, "The Covenant of Grant in the Old Testament and in the Ancient Near
East," JAOS 90.2 (1970), 184-203.
M. Weinfeld, "Covenant Terminology," JAOS 93.2 (1973), 182-196.