Maimonides and the Merchants. Mark R. Cohen

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СКАЧАТЬ merchant of the Geniza world.

      A wife may restrain her husband from traveling for commerce [seḥora] unless it is to a nearby place, so that he does not neglect his conjugal duty toward her. Hence he may not travel except with her permission. Similarly, she may restrain him from exchanging one occupation involving a frequent conjugal schedule for one involving an infrequent schedule, as, for example, an ass-driver who seeks to become a camel-driver (the former’s conjugal schedule being once a week and the latter’s once a month) or a camel-driver who seeks to become a mariner (whose requirement is once in six months). Disciples of scholars [talmidei ḥakhamim] may travel away to study Torah without their wives’ permission for as long as two or three years. Similarly, if a man leading a comfortable and pleasurable life becomes a disciple of scholars, his wife may not restrain him at all.

      The key to understanding Maimonides’ inclusion of the traveling merchant at the beginning of this halakha is the undefined ṭayyalin of the Mishna. The rabbis of the Babylonian Talmud had no clear idea what this term meant, except that it connoted people who, unlike the others, live at home and are free from laborious obligations. One rabbi proposed that ṭayyalin are “day students,” who, by nature, study nearby or in the town and can spend every night at home and thus be available sexually to their wives nightly.

      In his Commentary on the Mishna, completed a decade before the Code, Maimonides defines ṭayyalin, with contemporary realia in mind, as “those who live an easy and restful life and do not engage in trade or in doing a service” (alladhīna lā yatjurūna wa-lā yakhdumūna).²⁷ We shall later see (Chapter 5, section 5.12) that the verb yakhdumūna is not part of a hendiadys with yatjurūna; rather, the verb yakhdumūna captures with precision the most common method of commercial cooperation in the Geniza world, called, among other terms, khidma, “service,” a form of agency characterized by reciprocal commercial services. For the present, we may infer from Maimonides’ ruling in the Code—and assume that he himself inferred—that those who do travel for commercial purposes are governed by a different standard, due to the mobile nature of their profession. Maimonides’ understanding of ṭayyalin allows him to implicitly employ the rabbinic hermeneutic device hayoṣe‘ min ha-kelal ha-melammed ‘al ha-kelal (“the exception to the rule that proves the rule”) to teach that, while “a wife may restrain her husband from traveling for commerce [seḥora] unless it is to a nearby place,” he may travel afar if she gives her permission. This wifely permission represented a necessary relaxation of the law in an economy that required merchants to travel great distances to faraway places and for long stretches of time.

      Clearly, however, Jewish wives regularly gave their permission.²⁸ In a clause in a betrothal contract, a bride-to-be promises her groom that, once married, she will allow him to travel whenever he wishes.²⁹ The Geniza and the responsa of Maimonides copiously show that Jewish traders traveled as far as Spain and India and might be away from home and their wives for years at a time. Special arrangements often had to be made, such as allocating money for the wife’s maintenance before departure. Alternatively, a husband might give his wife a conditional divorce document (geṭ ‘al tenai or geṭ zeman), to go into effect after a stipulated period of time should he fail to return.³⁰ With this in hand, she could claim her divorce and be free to remarry.³¹

      Real-life examples from the Geniza reveal how husbands and wives dealt with the hardships of long-distance separation. A legal document from the Geniza stipulates that a husband who intended to travel abroad agree to allocate twenty dirhems per month, namely, five per week, for his wife, plus some wheat. The stipend was to be used to pay his annual poll tax as well as for rent and other household expenses.³² In another case, a woman complains that her husband traveled frequently without leaving her sufficient food. She took an oath refusing to cohabit with him any longer.³³ Another legal document (dated Tammuz 1356 Sel./1045 C.E.)³⁴ reports that a wife and her husband agreed that he could travel until a specific date. He left behind a geṭ, which, if he tarried, she could activate and become divorced.³⁵ Restrictions regarding husbands’ travel were often written into prenuptial agreements, betrothal deeds, and marriage contracts.³⁶

      Sometimes an absentee husband settled down in a new place and asked his wife to join him there, or wished to take a second wife in his new location. Such cases gave rise to legal queries, as illustrated by a question posed to Maimonides, in which he ruled, in accordance with the Talmudic halakha (Shabbat 110a; cf. Mishneh Torah, Hilkhot ishut 13:17), that a wife could be compelled to relocate provided it entailed moving to a place that was similar to where she lived.³⁷

      The case that Maimonides addressed in that responsum, as well as his ruling in Laws of Marriage 14:2, is anticipated in a responsum of R. Isaac Alfasi. It relates the story of a Jewish storekeeper in Jaén who left his hometown for another city in eastern Spain. There he remained for ten years and took a second wife, leaving his first wife an ‘aguna (lit., “anchored” to her marriage). When the first wife demanded that he be fined “the 200 qāsimī dinars customary in Spain since the early days” for taking a second wife, he offered instead either to move his first wife to his new location or to split his time between wife number one in Jaén and wife number two in his new place of residence.

      Alfasi’s ruling displays keen knowledge of how economic realities affected marriage. Since the storekeeper had been a stationary breadwinner in Jaén and therefore unaccustomed to traveling, the Spanish halakhist ruled that he ought not to have gone to another city for business without his wife’s permission, citing the very Mishna in Ketubbot that underlies Maimonides’ above-mentioned halakha. And since the errant husband had taken even further liberty by marrying again (without his wife’s permission), he was obligated to pay the hefty fine.³⁸ Differing from what may be a North African /Andalusian deterrent to husbands taking a second wife without their first wife’s consent, a ketubba clause in vogue in Maimonides’ Egypt when he arrived there permitted a wife on her own initiative to compel her husband to divorce her if she did not approve of his taking a second wife or a concubine.³⁹

      In Maimonides’ time, when travel for business to India was common and husbands often needed to be away for years at a time, wives certainly assented to long periods of separation, a concession to the family breadwinner’s need to travel great distances in pursuit of livelihood. They did not normally insist on the letter of the law regarding their husbands’ conjugal obligation, or demand a conditional divorce in advance. Maimonides’ halakhic rationale about traveling for commerce—“he may not travel except with her permission”—echoes this reality.

      3.7 Commerce and the Impotent Husband

      Rabbinic law allows a woman whose husband is impotent and cannot make her pregnant to demand a divorce after ten years have passed. The basic law in the Talmud (Yevamot 64a) qualifies this, however: if one of them becomes sick or both of them are imprisoned during this period, that time is not counted in the ten years. In other words, the ten years must comprise a period when the couple are actually living together.

      Amplifying the halakha, Maimonides makes room for the specific case of the traveling merchant (Hilkhot ishut 15:11): “If within those ten years he had gone away for commerce [halakh bi-sṭora] or was ill, or she was ill, or both were imprisoned, this time is not included in the ten years.”

      For the instance of commercial travel, Maimonides had some support from the Palestinian Talmud (Yevamot 6:6, Venice edition 7c; also Tosefta Yevamot 8:6), where, to illness and imprisonment, travel to medinat ha-yam is added. As noted earlier, this term in rabbinic literature seems originally to have meant the coastal district of Palestine. But it was taken by post-Talmudic Jews to mean a land “across the sea,” outside the borders of the Land of Israel, synonymous with the phrase ḥuṣ la-areṣ.⁴⁰ СКАЧАТЬ