Professor Marina Rustow’s note: “Having been asked twice now to contribute to the ILB, I’ve been making my way into the corpus of Islamic notarial documents preserved in Cairo Geniza. In the hope of understanding them better, I taught a PhD seminar on them in Fall 2022. Two of my students, Amel Bensalim and Athina Pfeiffer, kindly agreed to share this series of blog-posts with me.”
Numerous deeds, contracts or bills (kutub, sing. kitāb) of sale have survived in the Cairo Geniza, and are identifiable by their opening formula: hādhā mā ishtarā fulān min fulān, “this is what X bought from Y.” The document is written in objective style, from the buyer’s point of view. The use of the perfect tense indicates that the transaction had been completed before the document was drawn up, often in several copies.
Bills of sale were declarative (i.e., non-dispositive) instruments, so were not essential to the sale. Buyers and sellers were nonetheless encouraged to draw up deeds for legal security. The parties would solicit the help of a notary whose expertise in formulary would guarantee the soundness of the instrument.[1]
Jeannette Wakin, Geoffrey Khan and Yūsuf Rāghib have mapped the formulaic sequences in Arabic deeds of sale and their legal meaning:
- basmala
- opening formula identifying the transaction
- identification of the parties
- identification of the property
- price
- validity formula
- constituent acts of the transaction (payment/receipt of price, delivery/receipt of property)
- supplementary clauses (acknowledgements that the parties had seen the property and of other rights included in the sale; separation; warranty; parties witnessing the acknowledgement; date)
- corrections and additions
- witness statements
Khan has also compared the evolution of formulae across time and space.[2]
Outside this historiographic niche, the study of Arabic legal documents has often been consumed by the status of written proof conundrum in Islamic law and whether qāḍīs could use documents to render judgment in a litigation context.[3] Additionally, what we know about the production and use of deeds of sale is based mainly on long-form sources, especially notarial manuals (kutub al-shurūṭ).[4]
This post takes an alternative path, arguing that procedures, notaries, witnesses, and the parties to the transaction all shaped how legal documents came into being, looked, and were consumed through time and space.
Focusing on witness statements, the documents’ physical features and their dates opens up the question of the steps and paperwork needed to complete a sale. Documents of sale could be amended over a long period as new legal events took place. The sequence could extend over several months, mobilizing different genres of legal document. Sales were not restricted to deeds of sale properly so-called. They thus had a long and complex life before litigation occurred.
Additions and embedded documents
Cambridge University Library, Or. 1080 J117 contains multiple documents related to a single house.
The recto contains a deed of sale stating that the Jewish perfumer, Hārūn b. Khulayf b. Hārūn, has purchased a house from Khulayf b. ʿUbayd b. ʿAlī for a total of sixty dīnārs. Seven witnesses’ signature blocks organized in three columns follow the main text. Additional notes appear in the left column.[5]
Hārūn contracted to pay in two installments of thirty dīnārs. When this document was drawn up, he had paid the first installment, and the remainder was due in 482 AH/1082 AD (the day and month are torn away).[6] While the parties had concluded the sale on 28 Shaʿbān 481/November 22, 1088, multiple legal events occurred over the subsequent eleven months to complete the transaction.
Five witnesses had originally signed the deed on the date it was drawn up. But five months later, in Ṣafar 482/April 1089, the seller called in two of them—al-Ḥasan b. ʿAbd Allāh b. Jaʿfar b. al-Ḥasan b. Khalīl and ʿAlī b. ʿAbd al-Malik b. Futūḥ b. Marwān—to witness the receipt of a partial remainder of nineteen dīnārs. The additional testimonies were merged into their original witness statements with the conjunction wa, without repeating their names. However, differences between the handwritings in height, flatness, and angle of the baseline show that different people wrote the subsequent witness-attestations: the witnesses wrote the first statements while the second were written on their behalf by someone else.
Later notes in different handwritings (two required intensive collaborative reading –many thanks to Marina Rustow and Lorenzo Bondioli) in the left column refer to additional payments: seven dīnārs in Rabīʿ(or Jumādā) I 482/May/June (or July/August) 1089, three dīnārs in Rajab 482/September 1089, and one dīnār (no date). The events were recorded on the deed, but no witnesses were called to testify to them.
New legal events pertaining to the same transaction, i.e., partial payments of the remainder, thus did not require drawing up stand-alone documents or rewriting a complete deed: supplementary legal events could be embedded in the original deed. They did not leave similar documentary traces, however. Although the parties deemed it necessary to record in writing the receipts, they did not find it necessary to provide witnesses for all acts. Despite their formulaic stiffness, deeds of sale were malleable objects.
A single sale could, conversely, produce several documents. A separate document was written on the verso after completing the transaction.
One dīnār remained to be paid. A quittance written on 7 Shaʿbān 482/October 20, 1089 confirmed that the seller had received (qabaḍa) the thirty dīnārs remaining of the total price mentioned on the recto.
This addition aligned with al-Ṭaḥāwī’s statement that a quittance should be written upon delivery of the (full) price. However, whereas he recommends that the quittance take the form of a shahāda, here, it takes the form of an acknowledgement (iqrār).[7]
The witness attestation to the iqrār suggests that other stand-alone documents might have been produced during the transaction. The first witness attested to the parties’ acknowledgment on the same date that the iqrār was written, but the second witness testified to the acknowledgement one-and-a-half months earlier. The antedated witness attestation probably came into being with an earlier document, either a stand-alone attestation or a quittance. But the final quittance couldn’t be drawn up on the back of the initial deed until all required testimonies were gathered.
A later legal act
The bumpy life of this document extended to two later transactions. Both postdate the sale by a century, according to Goitein.[8] However the house was transferred from one Jewish family to another, no decisive proof supports his estimation.
The lower part of the verso contains an additional deed, written upside down, in which Abū Sahl b. Ibrāhīm the Jew donated (ṣadaqa) a house to his son Abū l-Ḥasan. The formula (hādhā mā ṣadaqa Abū Sahl b. Ibrāhīm li-bnihi) is problematic as the verb ṣadaqa (or ṣaddaqa?) is unusual in deeds of gift. It is unclear whether Abū Sahl b. Ibrāhīm donated the house to his son in the form of a ṣadaqa or a hiba; both allow for the transfer of immovable objects (here the house) inter vivos. The shurūṭīs make a clear distinction between the two operations in formula. For the ṣadaqa, al-Ṭaḥāwī for instance prescribed hādhā mā taṣaddaqa bi-hi fulān ʿalā fulān, whereas for a hiba: hādhā mā wahaba fulān li-fulān.[9] Here, the scribe mixed the hiba opening formula with the term ṣadaqa. In addition to his unsure handwriting, he didn’t master all the technicalities of Arabic legal formularies.[10]
Since there are no witnesses’ signatures, Goitein thought the document was a draft. But there could be a different explanation: a father and son may not have felt the need for witnesses; trust between family members and a written record of the donation in the form of a deed could have sufficed.
The document indeed stayed in the family. An additional transaction concerns the aforementioned Abū l-Ḥasan’s brother Mūsā b. Abū Sahl, who rented (istaʾjara) part of the same house for twelve dirhams per month for six months from Abū al-Ḥasan. This document bears a witness statement in Arabic from Abū al-Ḥasan, the owner, who wrote the document as revealed by the handwriting, and one in Judeo-Arabic from his brother Mūsā, the renter.
The owner carefully differentiated between the deed of gift and the rental he wrote down. Except for the basmala, the rental right margin is aligned with the earlier iqrār left margin, indented about three centimeters from the deed of gift right margin. Turning the page around in that case marked the passage to a new transaction.
Dots outlining the words that Mūsā was supposed to write in Judeo-Arabic suggest that he was of limited literacy, unable to write his own attestation, and was probably helped by his better-educated brother, who had mastered the rules of writing legal documents—both formulary and layout, including the conventions for writing secondary documents in a smaller text-block than the original ones.
It’s uncertain whether the house one brother rented to the other was the same house initially bought by Hārūn b. Khulayf b. Hārūn on the recto, but it’s likely, since different transactions related to the same object were commonly added on the verso of deeds of sale.[11]
Layout choices on verso
When judicial scribes wrote later documents on the verso related to the same object, they did so in a smaller script in smaller text-blocks, allowing space for additional documents to be written on the same page as well as indicating the hierarchy and the chronology of documents.
T-S Ar.53.70 verso contains an iqrār recording the sale of shares of a house in Rabīʿ I 512/July 1118 by a certain Ibn al-Ṣīnī to Bū ʿAlī b. Farāḥ. Explicitly referring to the deed of sale on the verso, the iqrār states that Ibn al-Ṣīnī had bought this house from Ḥusayn b. Shabāb about four months earlier: aqarra […] Ibn al-Ṣīnī […] wa-huwa al-mushtarī al-musammā bi-bāṭinihi (Ibn al-Ṣīnī […], he being the buyer named on the recto […] acknowledged […]) ; al-duwayra al-maḥdūda al-mawṣūfa bi-bāṭinihi (the small house that is defined and described on the recto).[12]
The cross-references to the primary document “on the recto” (bi-bāṭinihi) emphasize that there is a direct link between the documents, as in CUL Or. 1080 J117.
One reason for these cross-references was to avoid extra repetition of the details of the original deed, such as the description of the house and its boundaries, without impacting the new document’s validity.
The scribe fit the follow-up iqrār into the right side of the page, leaving ample upper, lower, and left margins in case of further transactions. Although the scribe of CUL Or. 1080 J117 centered the quittance on the verso, he left similarly large margins, leaving enough room for the deeds of gift and rental to be written upside down while retaining considerable upper and lower margins.
All in all, later documents were identifiable at first glance.
Sewing on an addition
Additions related to testimonies didn’t always fit on the same sheet. T-S AS 177.637 is a rare example of an additional piece sewn to a deed of sale.
Someone bought some property—the document is too damaged to know its nature—from a woman (al-marʾa) via a broker, Ibrāhīm b. ʿAllān (line 8).
The deed originally bore one signature block. Others could have fit into the now-missing left side. Given that there was enough space left on the deed, why were an additional attestation and a marginal note added by sewing on an additional writing support?
In hunting for reasons why this might be, I searched for anomalies in the document.
The additional witness statement takes the standard form of attestations in deeds of sale, so no anomaly there.
The note in the right margin mentions the buyer and a broker (simsār)—according to Goitein, either a real-estate broker confined to a particular neighborhood, a broker specialized in textiles, or a market crier.[13] Could the simsār be the reason for the anomaly?
Apparently not. Another deed of sale (T-S Ar.38.101) written in Jumādā I 439/Nov. 1047 refers to a broker in the witness block attesting to the “acknowledgement of the seller […] that she received the price mentioned in the deed.” In this case, the seller, the buyer, and the simsār were all present at the same time, or at least had the document in their hands at some point; the testimony and the deed are written on a single piece.
The sewn testimony in T-S AS 177.637 was therefore not the inevitable consequence of a brokerage sale. Rather, there must have been some other reason that the original deed wasn’t available to the additional witness when he signed. The witness could have written his statement before the notary drew up the deed, then left the center of action, leaving the parties with a loose sheet. He could also have signed other copies of the deed brought to him, unable to sign this one which the notary or the parties kept remotely.
T-S AS 177.637 suggests that witnesses did not have to be present to witness the deed in the moment.
Conclusion
Documents of sale record complex histories that can be mapped to reveal how and when people had legal documents written for them. But the sequence of documents can’t always be grasped merely from following the explicit dates or names. One also needs to analyze the document’s physical features, including its handwriting and layout, to hypothesize about missing elements of context, and to read the contemporaneous literary evidence for significance of individual documents in society. This post proposes a path into documents of sale that hopefully can be followed for other kinds of documents. The utility of reading legal documents grouped by genre should not obscure their parallels, or the sometimes porous boundaries between them.
Notes:
[1] This is best expressed by al-Sarakhsī (d. 483) in his Kitāb al-Mabṣūṭ fī l-furūʿ (Beirut, 1989), 30:168. However, it didn’t totally exclude parties from drawing up their own deeds.
[2] Jeannette Wakin, The Function of Documents in Islamic Law: The Chapters on Sales from Ṭaḥāwī’s Kitāb al-shurūṭ al-kabīr (Albany, 1972); Geoffrey Khan, Arabic Legal and Administrative Documents from the Cambridge Genizah Collections (Cambridge, 1993) [henceforth ALAD]; Yūsuf Rāghib, Actes de vente d’esclaves et d’animaux d’Egypte médiévale (Cairo, 2002); Rāghib, Transmission de biens, mariage et répudiation à Uqlūl, village du Fayyoum, au Ve–XIe siècle (Cairo, 2016). I await the publication of Nadia Jamil and Jeremy Johns, Arabic deeds of sale, about Sicilian documents.
[3] Émile Tyan, Le notariat et le régime de la preuve par écrit dans la pratique du droit musulman (Beirut: Faculté de droit de Beyrouth, 1959); Baber Johansen, “Formes de langage et fonctions publiques : Stéréotypes, témoins et offices dans la preuve par l’écrit en droit musulman,” Arabica 44 (1997): 333–76; Christian Müller, “Les actes notariés en droit musulman (VIIIe–XVIe siècles),” Studia Islamica (2022): 1–23. On the dialectic between writing and orality in Islam, see Michael Cook, “The Opponents of the Writing of Tradition in Early Islam,” Arabica 44 (1997): 437-530.
[4] Wakin’s work on al-Ṭaḥāwī’s (d. 321/933) book of sales is fundamental in that respect: Wakin, Function of Documents.
[5] The layout of the witness statements in columns is standard in the Geniza legal documents in Arabic script from the Fatimid period. Deeds of sale from the Fayyūm dating from the fifth/eleventh century regularly display a different organization: testimonies are either listed under the main text (P. Lond. Or. 4684 [2] in Rāghib, Transmission de biens, 28–30, 40) or immediately following it (PUL, Garrett Additional 20.27).
[6] Lacuna at the end of line 13 in place of the exact date.
[7] Al-Ṭaḥāwī, “al-Juzʾ al-awwal min al-buyūʿ min Kitāb al-shurūṭ al-kabīr,” in Function of Documents, ed. Wakin, 85–86. For other stand-alone quittances, see Geoffrey Khan, “An Arabic Legal Document from the Umayyad Period,” Journal of the Royal Asiatic Society 4 (1994): 357–68 and Mathieu Tillier and Naïm Vanthieghem, “Un reçu de paiement pour une vente immobilière à terme,” Chronique d’Egypte 93 (2018): 421–31. According to Khan, “An Arabic Legal Document,” 367, quittances usually took the form of iqrārs in the Fatimid period in Egypt.
[8] S. D. Goitein, A Mediterranean Society: The Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, 6 vols. (Berkeley, 1967–93), 3:479.
[9] Al-Ṭaḥāwī, Kitāb al-Shurūṭ al-ṣaghīr, ed. Rawḥī Ūzjān (Baghdad: Maṭbaʿat al-ʿānī, 1974), 641, 648.
[10] It is unsure whether the donation was part of a strategy to circumvent rules of inheritance, either Islamic or Jewish. But this is beyond the scope of this post.
[11] Gathering different documents related to the same object/people was not particular to sales. It also happened with gifts (Yūsuf Rāghib, Actes de vente, 1:94–100) as well as marriage and divorce (T-S Ar.38.66 ed. Khan, ALAD, n°33).
[12] T-S Ar.53.70. ed. Khan, ALAD, n°5. For other examples, see Khan, ALAD, 9 n.10.
[13] Goitein, A Mediterranean Society, 1:160.
(Suggested Bluebook citation: Athina Pfeiffer, Documents of Sale as Living Objects, Islamic Law Blog (Jan. 31, 2023), https://islamiclaw.blog/2023/01/31/documents-of-sale-as-living-objects/)
(Suggested Chicago citation: Athina Pfeiffer, “Documents of Sale as Living Objects,” Islamic Law Blog, January 31, 2023, https://islamiclaw.blog/2023/01/31/documents-of-sale-as-living-objects/)