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Does Abstracting go back to the beginning of time?
The history of land transfer goes back to the very beginning of civilization, when humans transitioned from hunting and gathering to agriculture. With people settling in one place to grow crops rather than roaming to find food, land took on new importance and ancient land law was born.
Whether it took place thousands of years ago or last Tuesday, every real estate transaction throughout time has carried with it two inherent risks for the purchaser:
– That the seller will breach the contract (either by not ceding the land, trying to reclaim it later, or falsely claiming the purchaser has failed to pay)
– A superior third-party claim will prove the seller never had clear title to sell the land in the first place.
Ancient societies came up with a variety of practices to reduce these two risks for purchasers.
Mass Gatherings and Mass Closings
Between 5,000 and 3,000 B.C., prior to the invention of writing, real estate closings in Mesopotamia were conducted in front of a large number of witnesses. The seller would carry out a number of rituals and symbolic acts relinquishing the land and the purchaser would transfer the closing funds to the seller — all in front of the witnesses.
One such mass closings appears in the Book of Genesis, when Abraham purchases land from a Hittite with the intention of burying his wife there. Because it is intended to be the site of a tomb, he wants a title to the land in perpetuity. The entire town of Hebron attends the ceremony, and the crowd is asked if anyone holds claim to the piece of land — a sort of real-time title search to reduce the risk of a later third-party claim.
Cuneiform Land Sale Documents, Warranties and Clauses
The need to document important transactions like real estate transactions played an important role in the development of writing. The oldest legal document ever discovered, dating from around 3,000 B.C., recorded a land sale in Mesopotamia with pictures.
Later, the Mesopotamians developed a more advanced writing system called cuneiform. Scribes used clay tablets to record land sale documents that included the identities of the parties, a description of the land, the price paid, and the identities of witnesses, which often included the land surveyor.
By the 1600s B.C., the leasing and selling of privately owned land was common in Mesopotamia, and silver or other precious metals were the default medium of exchange. Some sale documents even included warranties against title defects. One such clause required the seller to appear in court to defend the buyer’s title against a third-party claimant. If the third-party won, the warranty called for a nail to be driven through the seller’s mouth. Later versions of the same law only required the seller to provide compensation to the buyer.
For more fascinating information about ancient land practices, check out Ancient Land Law: Mesopotamia, Egypt, Israel from the Yale Law School’s Legal Scholarship Repository.
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