The Code of Hammurabi and the Ukrainian Insurance Law

In modern society, the insurance is an organizational and legal form of the protection of insurable interest of individuals and legal entities.

Refusal of state insurance monopoly and development of the Ukrainian insurance market entail the need for improvement of legal regulation of insurance activity. Achieving this goal is objectively impossible without a thorough study of the history of insurance.

Draws attention to the fact that the study of the history of insurance for a long time was carried out mainly by  academic economists. This led to an analysis of the historical and legal sources exclusively from an economic point of view. Using historical and economic methods in the study of insurance is not always contributed to an adequate understanding of written source of law and sometimes negatively affect the objectivity of scientific results.

So, in the Ukrainian legal scientific literature the Code of Hammurabi is a recognized source of law regulating the primary forms of the insurance. Any monograph or textbook in area of the insurance begins with a reference to the Code of Hammurabi. There are also numerous scientific articles containing references to the Code of Hammurabi in the context of the occurrence of insurance. In general, it is axiomatic argument on the code of Hammurabi as a source containing the norms which regulate insurance.

What is the basis for this argument? This is a well-established and long-standing thesis about joint damages between participants of trade caravans. It is taken for granted that the Code of Hammurabi provided or even required to enter into an agreement between the parties of the trade caravans on sharing losses caused as a result of predatory attacks, theft or loss on the road.

The structure of this thesis is the following: 1) Code of Hammurabi required conclusion of an agreement between the parties of a trade caravan; 2) The agreement provide the sharing of losses between caravan participants; 3) Occurrence of losses as a result of the attacks of robbers, stolen or lost in the way has a probabilistic nature; 4) The probability of loss and the nature of their joint (solidarity) damages are a sign of compensation insurance and hence the insurance.

However, it is surprising that the confession of Code of Hammurabi as source containing signs of legal regulation of the primary forms of insurance, took place without a reference to specific articles of the Code. In other words, the thesis of the existence in the Code of Hammurabi provisions about the agreements between the parties to the trade caravans are not substantiated through the analysis of the content of specific articles of this Code.

Thus, there is a need to analyze the Code of Hammurabi in the context of historical and legal aspects of the emergence of insurance.

The Code of Hammurabi is a source of law which regulates the relations in various spheres of life of slave society. Date of adoption of the code is in the range 1792-1750 BC.

To date, there are 282 articles of the Code of Hammurabi. The purpose of adoption of the Code of Hammurabi, in the words of the tsar-legislator, was the establishment of rights in the state, the proper resolution of disputes, justice for the weak, the widows and orphans.

The Code of Hammurabi provides the legal regulation of these relations: Art. 1-6 - a false accusation, false testimony, change the sentence the judge; Art. 7-14 - theft, return of property, abduction of children; Art. 15-20 - the return of fugitives slaves; Art. 21-25 - robbery; Art. 26-32 - war debt fief’s (Latin: feudum) owners; Art. 33-41 - property relations arising from the fief service; Art. 42-58 - lease of land, responsible for crop failure or destruction of crops; Art. 59-66 - relationships related to gardening; Art. 71, 78 - limit order house provided by fief service, rental housing; Art. 96 - debt repayment movable property; Art. 100-107 - relationships related to trade; Art. 108-111 - sale of alcoholic beverages; Art. 112-119 - improper performance of services, mortgage, debt bondage; Art. 120-125 - Storage; Art. 126 - false statements about the loss of property; Art. 128-164 - marriage and family relations; Art. 165-184 - heritage; Art. 185 - 194 - adoption; Art. 195-214 - causing bodily harm; Art. 215-225 - the provision of health services, the responsibility of the doctor; Art. 226, 227 -  livestock branding responsibility; Art. 228-233 - the responsibility of the builder; Art. 234-240 - shipbuilding, responsible mariners-carrier; Art. 241- 249 - hire oxen, donkeys; Art. 250-252 - the responsibility of the owner of the bull for killing the bull man; Art. 253-277 - the hiring of agricultural workers, shepherd, artisan, carts, the ship; Art. 278-281 - the purchase of slaves; Art. 282 - punishment slave.

It should be noted that the overall analysis of the relationships that are regulated by the Code of Hammurabi provides no basis for concluding that there was any agreements between the parties of the trade caravans.

Given this, it seems appropriate to allocate the Code of Hammurabi articles governing contractual relations. In particular, the Code of Hammurabi articles were settled, in general, such a contractual relationship: Purchase and Sale (Art. 7, 37), Storage (Art. 7, 120, 121), Barter (Art. 41), Lease (Art. 45 , 52, 60) Subleasing (Art. 47), Hiring (Art. 64, 236-238, 257, 258, 261, 273), Rental housing (art. 78), Lending (Art. 66), Loan (Article . 102), Commission (Art. 100), Retail trade (Art. 108), Agency (Art. 112), Pledge (Art. 115), Prenuptial contract (Art. 128, 151), Gift (Art. 150, 165 ), Heritage (Art. 170, 178), Adoption (185), Service (Art. 215), Contractor (Art. 228, 229, 235).

Analysis of the contents of the above articles also indicates the absence of provisions in the Code of Hammurabi aimed at the conclusion of agreements between the parties of the trade caravans.

In addition, the ratio of trade regulated by Articles 100-107 of the Code of Hammurabi, which sets the rules of mutual payments between merchants and traders. Here, attention is attracted by the provisions of Art. 101-103 of the Code of Hammurabi.

For example, in Art. 101 noted that if the trader does not receive profits, then He should return the money received from the merchant in double.  In Art. 102 was assumed that if the trader will receive a loss, He should return the money received from the merchant. In Art. 103 established grounds for exemption from liability trader. If the enemy will take away all that was a trader, the trader says oath before God and be exempt from liability.

Thus, even in the articles of the Code of Hammurabi, aimed at regulating relations in trade, there are no provisions on the joint distribution of losses between participants of trade caravans. On the contrary, in certain cases, a trader or is obliged to return the money or exempted from the obligation to return them. Total (solidarity) the allocation of loss is not provided.

At the same time, systematic analysis of the provisions of the Code of Hammurabi gives reason to conclude that the thesis of the agreements between the parties of a trade caravan on the joint distribution of losses has no logical-semantic connection with the content of articles of the Code of Hammurabi.

The collocation "caravan", "agreement between the parties of a trade caravan", "general distribution losses caused as a result of predatory attacks, theft or loss on the road" - not used in the Code of Hammurabi in principle. The Code of Hammurabi is aimed not just at the joint distribution of the losses, but to be personally liable for the damage caused. Principle Code of Hammurabi is a punishment equal to the offense or the offender is applied just as harmful as the harm caused to themselves (eg, Art. 6, 8, 196, 198, 210 of the Code of Hammurabi).

Further, the terminology and the general level of legislative technique the time of Tsar Hammurabi, in our opinion, is not allowed to create a relatively complex legal construction of the general allocation of loss.

Thus, the analysis of the relevant provisions of the Code of Hammurabi rules leads to the following conclusions: 

1) The Code of Hammurabi has no provisions aimed at the conclusion of agreements between the participants of trade caravans on the joint distribution of losses caused as a result of predatory attacks, theft or loss on the road; 2) The thesis of the existence of the Code of Hammurabi provisions aimed at the conclusion of agreements between the participants of trade caravans on the joint distribution of losses caused as a result of predatory attacks, theft or loss on the road is not justified; 3) The Code of Hammurabi is not a source of legal regulation of primary forms of insurance.