Maimonides and the Merchants. Mark R. Cohen

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СКАЧАТЬ from what [Maimonides] says that it is only permissible when he has nothing to eat. But it is possible that he also permits [a merchant to work] when he has limited assets and wishes to profit by selling, so he will have a surplus of money, for this, too, is tantamount to ‘enough for his livelihood.’” Not just “enough for his livelihood” but “a surplus of money.” Caro understood, as did Maimonides, that earning a livelihood through trade required always keeping ahead of the game, never letting one’s cash reserves run low, never allowing one’s liquid assets to lie fallow. We seem, therefore, to be witness to another instance in which Maimonides, well versed in the ways of commerce and business in general, adjusted the halakha to conform to the entrepreneurial spirit of the post-Talmudic Islamicate economy.

      3.5 Commerce and the Sabbath

      Exemplifying Maimonides’ extension of a rabbinic law written in an agrarian context to fit the world of the Geniza merchants is his treatment of the question of certain types of work that must be avoided on the Sabbath. The Mishna, tractate Shabbat 23:3, states: “One may not hire laborers on the Sabbath, nor may one tell another person to hire laborers for him. One may not walk to the Sabbath limits [teḥum, the maximum distance allowed for a walk from home on the Sabbath] to await nightfall to hire laborers [i.e., to be nearer the place, beyond the limits, where one hires laborers] or to bring in produce, but one may do so to watch [one’s own field, located beyond the limit, immediately upon nightfall], and then he may bring [home] produce with him. Abba Saul stated the general rule: ‘Anything that I am permitted to instruct be done, I am permitted to await nightfall for it’” (i.e., at the Sabbath limits).

      Like the Mishna, the Gemara (Shabbat 150a) situates this ruling in an agricultural context, exemplifying the principle with examples—hiring laborers and transporting produce—that indicate a society invested in farming.

      Maimonides’ approach differs markedly. In Laws of the Sabbath 24:1, he updates the Mishnaic and Talmudic texts to conform more closely to a world in which long-distance trade was widespread.

      Some acts are forbidden on the Sabbath even though they neither resemble nor lead to prohibited work. Why, then, were they forbidden? Because Scripture says, “If thou turn away thy foot because of the Sabbath, from pursuing thy business on My holy day.… And thou shall honor it, not doing thy wonted ways, nor pursuing thy business, nor speaking thereof (Isa. 58:13).” Therefore, one may not walk with one’s goods on the Sabbath or even speak about them, for instance, to speak with one’s partner [shutaf] about what to sell on the morrow, or what to buy, or how to construct a certain house; or what merchandise [seḥora] to take to such-and-such a place. These things and all others like it are forbidden, as it is written, “nor pursuing thy business nor speaking thereof,” which means that speaking [about business] is forbidden, though thinking [about it] is permitted.

      The type of economy assumed by this Maimonidean halakha is not the local and regional agrarian economy of the Talmud but the more wide-ranging commercial economy of the Islamic world. The Mishna speaks about walking the distance to the Sabbath limits in order to wait there to hire agricultural laborers after nightfall, when the Sabbath ended, or to carry produce from there back home. By contrast, Maimonides specifies travel for business (“walk with one’s goods”), a significant nod to the long-distance trade pursued by Jewish (and Muslim) merchants. Then there is his all-important reference to partnership, which, in his time, represented a prominent (though not the primary) method of doing business, especially long-distance trade across the Mediterranean and India routes. This will be discussed in greater detail in Chapters 4 and 5.

      Patently reflecting the agricultural society of the Talmudic era, the Mishna forbids instructing a person to “hire laborers for him.” Characteristic of the Geniza world, Maimonides exemplifies the kinds of verbal exchanges forbidden on the Sabbath with discussions that business partners would be likely to have. Such conversations might include plans for marketing after the Sabbath ended or the geographical scope of the partnership or agency relationship—“what merchandise to take to such-and-such a place”—which was especially important in long-distance commercial ventures, where one person was often stationary and the other did the work. Business collaboration through agency relations (see Chapter 5), unlike partnership, was typically initiated orally, without written contract and without other formalities required by Talmudic law in partnerships. Maimonides, who, we shall see, instituted a significant reform in agency law, takes cognizance of this widespread phenomenon in the halakha under discussion here.

      Unlike the halakha in the Code permitting trade on the intermediate days of a festival (section 3.3 above), this one, regarding the Sabbath, is stricter, in line with the Talmud and the sanctity of the day of rest. We are witness to the codifier’s eye on contemporary economic life and hear a clear warning against the permissive attitude of Jewish merchants, who might be tempted to engage in trade on the Sabbath, or at least plan commercial ventures on the day that was biblically devoted to rest.

      3.6 Commerce and a Husband’s Conjugal Duty

      A dramatic example of Maimonides’ method of updating the halakha for a trading society is a halakha found in chapter 14 of Laws of Marriage (Hilkhot ishut), discussing a husband’s conjugal duty to his wife, a duty stipulated in the Torah (Exod. 21:10) and discussed in the Talmud.

      The underlying rabbinic source, as recognized by the commentators, is the Mishna in Ketubbot 5:6, which establishes a relationship between a husband’s profession and his obligatory conjugal obligation. “If a man vowed to have no intercourse with his wife, the School of Shammai says: [She may consent] for two weeks. And the School of Hillel says: For one week [only]. Disciples [of the Sages] may continue being absent for thirty days against the will [of their wives] while they occupy themselves in the study of the law; and laborers for one week. The conjugal duty of a husband enjoined in the Torah [Exod. 21:10] is: every day for ṭayyalin; twice a week for laborers; once a week for ass-drivers; once every thirty days for camel-drivers; and once every six months for mariners. So R. Eliezer.”²⁶

      Unsurprisingly, the Mishna assumes a noncommercial context. Furthermore, the focus is on persons who work locally (laborers, usually agricultural), or who travel away from their locality temporarily for study (not for trade), or who work in the “transportation industry” (ass-driver, camel-driver, mariners), occupations that necessarily took them away from home for shorter or longer periods of time. Left undefined are the ṭayyalin.

      Maimonides bases his halakha on this Mishna but with significant elaboration. He begins (14:1) by stating as a general rule that a husband’s obligation varies with his physical powers and his occupation. This general statement, a classic example of the “topic sentences” with which Maimonides introduces many chapters in the Code, flows from particular stipulations in the Talmud about the health of a husband or about his occupation, whether he be a tailor, weaver, ass-driver, mariner, or Torah scholar, and the schedule he must keep to in order to fulfill his conjugal duty.

      The conjugal duty enjoined in the Torah depends on each man according to his physical ability and his occupation. In what way? Men who are healthy, leading a comfortable and pleasurable life, who have no occupation to sap their strength, but who rather eat and drink and dwell in their own houses: their conjugal duty is every night. Laborers, like tailors, weavers, and construction workers, etc.: if their work is in the town, their conjugal duty is twice a week, and if their work is in another town, once a week. Ass-drivers: once a week. Camel-drivers: once in six months. Mariners: once in six months. Disciples of scholars: their conjugal duty is once a week, because Torah study saps their strength, and it is the practice of disciples of scholars to have intercourse on Sabbath eve once a week.

      The halakha that follows (14:2) elaborates on the first. Noteworthy СКАЧАТЬ