Maimonides and the Merchants. Mark R. Cohen

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СКАЧАТЬ adhering to norms that were not always consistent with the Talmudic legal system but that had been inscribed in Islamic law during its formative period. The Geonim certainly knew that if they did not accommodate the use of the suftaja, in any dispute concerning this device Jewish merchants would simply resort to Islamic courts, where the commercial instrument was recognized.¹³ Gaonic sanction of the suftaja meant that Jewish merchants could bring litigations involving this financial device before the Jewish beit din, rather than seeking resolution in the court of the Muslim judge. In the wake of the Geonim, the suftaja gained codified status as a valid “custom followed by the merchants” in the Halakhot of R. Isaac Alfasi and, later on, in Maimonides’ own Code, in the name of “my teachers” in al-Andalus.¹⁴

      Other Gaonic adjustments reflect their awareness of the new mercantile economy as well. In a taqqana from the second half of the eighth century, they ruled that widows claiming the money promised them in their marriage contract and payable upon the death of their husbands, as well as general creditors claiming repayment of a debt, could collect what was owed them from the deceased husband’s movable property. The Talmud stipulated that they could place a lien only on his real property. A responsum attributed to an early ninth-century Gaon explains the reason for the taqqana: “Here [in Babylonia], most people [i.e., Jews] do not own land.”¹⁵ The new rule had the dual purpose of protecting women’s postmarital livelihood and keeping credit flowing in an economy that very much depended on credit in the purchase and sale of commodities.

      In conforming Jewish law to the needs of the Islamicate marketplace, the Geonim faced a greater challenge than their Muslim counterparts. The formative period of Islamic law coincided with the Islamicate commercial revolution. In a seminal article, “The Rise of the Near Eastern Bourgeoisie in Early Islamic Times,” S. D. Goitein showed that most of the early Muslim jurists were themselves merchants, or at least au courant with merchant custom.¹⁶ Joseph Schacht had already shown that customary commercial law of pre-Islamic Mecca, echoed in commercial terms in the Qur’ān, entered Islamic law in its formative period.¹⁷ These customs, like the suftaja, were therefore absorbed into Islamic law as early as the eighth century. The most flexible and “liberal” of the law schools (madhhabs) in this respect, the Ḥanafīs, named after their founder, Abū Ḥanifa (d. 767), and, to a lesser extent, other legal schools incorporated these practices into Islamic law as it took shape.¹⁸

      In contrast, the formative period of Jewish law had long passed when the Islamicate commercial revolution arrived. The Geonim had a huge corpus of halakha from the pre-Islamic, Talmudic period to contend with, and this corpus served an agrarian society, not a highly commercialized, monetized society in which long-distance trade and credit figured prominently. Like the examples cited above, they accommodated these transformations through their responsa, through taqqanot (though they seem rarely to have resorted to this halakhic tool), through what they called “the custom of the yeshiva,”¹⁹ and through rulings incorporated into mini-codes, many of which deal with commercial law.

      2.2 “Custom Overrides the Halakha” and Qinyan Siṭumta

      The Geonim had a juristic tool at their disposal that they could deploy when faced with discrepancies between Talmudic law and contemporary merchant practice recognized by Islamic law. This was represented by a rabbinic maxim, minhag mevaṭṭel halakha, “custom overrides the halakha,” analogous to an Islamic legal maxim, al-‘āda muḥakkima, “custom is legally authoritative.”²⁰ The Jewish maxim appears in the Palestinian Talmud.²¹

      The Talmudic precedent for this concession to daily economic affairs occurs in connection with transfer of ownership (Heb., qinyan). Recognizing the necessity for flexibility when buying and selling, the Talmud validates a procedure called siṭumta (meaning “a seal”), which, if it conformed with local custom, could substitute for one of the methods of acquisition dictated by the Talmud, such as physically pulling the object (meshikha) or lifting it up (hagbaha). The example given by the Talmud is wine. The medieval commentator Rashi, thinking of the importance of wine as a commodity in his own time and place in eleventh-century France, explains the notion as follows. When a retailer purchases barrels of wine for his shop from a winemaker, he does not take all of them at once but leaves some in the seller’s wine cellar to be claimed later, as needed. He marks the kegs with a siṭumta to identify them as his own. This procedure signifies proof of purchase and substitutes for “pulling” the object.²² As summed up by R. Solomon b. Adret (Rashba; thirteenth-century Spain), “we learn from this that custom overrides the halakha [minhag mevaṭṭel halakha] as well as in any similar matter. In all monetary matters, one may buy and sell in accordance with custom. Therefore, one may complete a purchase in whatever way it is customary for merchants to do so.”²³ Rashba’s rule echoes, further, an axiom of economic history: mercantile custom typically evolves out of the needs of the marketplace, in contexts connected with trade, rather than in schools of law.²⁴

      2.3 Trade and the “Custom of the Mariners”

      The importance of custom in Jewish economic life is attested in the Talmud in a concession to practice in the surrounding society that was to prove essential for long-distance trade during the Islamic period. I refer to what the rabbis call minhag ha-sappanim, the “custom of the mariners.”

      Classical rabbinic literature, it has been observed, contains a paucity of nautical terms.²⁵ While the Mishna, the Tosefta, and the Talmuds contain occasional discussions of legal issues relating to sea travel, which some have argued represent traces of an indigenous Jewish “admiralty law,”²⁶ these scattered fragments do not bespeak a widespread phenomenon of long-distance trade by ship that would have required detailed halakhic regulation.²⁷ Stories in rabbinic texts about arriving in or traveling to medinat ha-yam, literally, “the land of/by the sea,” apparently originally meant not across the high seas but rather the Mediterranean coastal district of Palestine. Only later did this term assume the meaning of beyond the shores of the Land of Israel, namely, the lands of the Hellenistic diaspora at the eastern end of the Mediterranean.²⁸

      When Jews did travel by ship, for study, to visit family, to find a wife, or occasionally on business, they followed the custom of the mariners, a set of practices devised and put into practice by seafaring people in the society in which Jews lived. Classical rabbinic law mentions this concept once, in the Talmudic tractate Bava Qamma 116b, with a parallel in the Tosefta. Notably, the case regarding sea travel is preceded by an example concerning overland transport by donkey caravan, where the concept of the “custom of the mariners” is replaced by the “custom of the ass-drivers.”

      [1] Our Rabbis taught: If a caravan traveling in the desert was attacked by armed men threatening to plunder it [le-ṭorfah], they reckon [the contribution to be paid by each merchant to buy them off] according to the monetary value [of the goods of each merchant] but not according to the number of souls. But if they hired a guide to go ahead of them, they also reckon [compensation for the loss] according to the number of souls [in the caravan]. They must not deviate from the custom of the ass-drivers.… [2] Our Rabbis taught: If a ship traveling on the sea was hit by a storm threatening to sink it, so that they jettisoned some of the cargo [lit., “lightened its weight”], they reckon [indemnification for the loss] according to the weight of the cargo and not according to its monetary value. They must not deviate from the custom of the mariners.²⁹

      The case in the Talmud recalls the rules of jettison and general average (equalized division among all merchants of responsibility for overall loss through jettison) in the ancient Roman law of the sea. This law was summarized later in Justinian’s Digest (sixth century) and elaborated subsequently in the Nomos Rhodion Nautikos (Rhodian Sea Law), thought to have been compiled between 600 and 800 C.E.³⁰ Boaz Cohen, the eminent scholar of comparative Jewish and Roman law, pointed to the similarity between the maritime law of salvage in СКАЧАТЬ