Maimonides and the Merchants. Mark R. Cohen

remainder of halakha 5:1 prescribes basic rules that had to be followed by an active partner in the absence of written stipulations. Since these were dependent on merchant custom—custom, to underscore again, that was general and not specific to Jews—they did not need to be ratified by the formal Jewish method of qinyan (symbolic confirmation of mutual agreement, typically by grasping either end of a piece of cloth or scarf and similar to a handshake). Rather, as Maimonides closes, “oral agreement alone is sufficient.” One may perhaps see here an allusion to a type of partnership attested in the Geniza, termed mu‘āmala, that could be established without the formal requirements of Talmudic law.⁴⁹

      Seeking a parallel for Maimonides’ ruling in the halakha in question, R. Joseph Caro (Kesef Mishneh ad loc.) quotes Maimonides’ older contemporary R. Isaac b. Abba Mari of Marseilles in southern France, and later of Spain (ca. 1120–ca. 1190). In his digest of laws, Sefer ha-‘iṭṭur, R. Isaac cites a responsum of the Babylonian Gaon Kohen Ṣedeq (Gaon 926–935), stating that an active partner may sell on credit even without the investor’s permission if this is the “way [or custom] of the merchants,” orḥa di-tagarei, an Aramaic locution not found in the Talmud.⁵⁰ Like Arabic ḥukm al-tujjār, the Aramaic phrase describes the very same “custom of the merchants” that both the Geonim and Maimonides acknowledged as the extra-halakhic practice of the merchants.

       2.4.1 Minhag Yadua‘ and the Custom of the Merchants

      A more general and sweeping statement about the importance of the custom of the merchants—though again, not using the literal term—underlies a halakha in the Laws of Sales (Hilkhot mekhira). The halakhot at the end of chapter 26 there deal with local custom with regard to the designation of articles by an established name. Halakha 26:8 states: “It is an important principle in all business dealings that we follow the language of people in that place and [local] custom. In those places, however, where no recognized custom [minhag yadua‘] exists or specific names for objects, but rather some people call this object one thing while others call the same object by another designation, then we do as the Sages have expounded in these chapters.”

      The phrase “recognized custom” (minhag yadua‘) includes one of the adjectives, yadua‘, used by the Geonim when referring to “custom.”⁵¹ Unknown in the Tannaitic and Talmudic corpus, it has the appearance of an Arabism, translating a word like ma‘lūm or ma‘rūf (“known” or “recognized”—the Arabic term for custom is ‘urf).⁵² These words are found together in a formula regarding custom in Islamic law.⁵³ In Maimonides’ language, minhag yadua‘ and minhag ha-medina are functional equivalents, an equivalence that may be Andalusian usage.⁵⁴ Maimonides explains that local custom applies in the present case precisely because every Jew “recognizes” its existence as an alternative to the received halakha.⁵⁵

      * * *

      In commerce, then, two realms existed side by side, according to Maimonides, as to the Geonim. First there was the realm of normative Jewish law (the halakha), as established in the Talmud; second was the realm of commercial custom. Jewish merchants in the Islamic world were thoroughly integrated into the wider commercial economy. In order to make a profit, in order to minimize risk, they were obliged to follow practices shared by all merchants, regardless of religion.

      Under the rabbinic rubric of minhag ha-medina, Maimonides made room in his Code for this custom of the merchants—even if he did not always employ the term—in much the same way that early Islamic lawyers accommodated customs of the merchants in the developing Islamic legal canon during its formative period. Some of Maimonides’ adaptations to accommodate mercantile practice were minimal, entailing no fundamental challenge to basic Talmudic norms. They simply updated Talmudic language to fit the needs of the Islamicate marketplace. Other adaptations, often imperceptible, went further, actually expanding the halakha to fit the custom of the merchants. The most startling of these instances is the creation of an enforcement mechanism for the new economic institution of informal commercial agency (see Chapter 6). On occasion, as we shall see, Maimonides attempted to regulate a legal reform to make it conform with Talmudic norms. The outstanding case of this is his rejection of the Gaonic legal fiction designed to facilitate proxy legal agency in the post-agrarian Islamic world (see Chapter 7).

      Chapter 3

      Updating the Halakha

      3.1 Incorporating Long-Distance Commerce into the Code

      The merchants we hear about in the Talmud operated primarily in local or regional markets connected with local or regional trade.¹ Commerce requiring travel over great distances was rare. The Islamic world, by contrast, knew a clear distinction between local (or regional) trade and long-distance trade, for each of which it had a specific Arabic term, tijāra ḥāḍira and tijāra ghā’iba, respectively.² With the coming of the Islamic conquests, Jews themselves entered long-distance trade for the first time, and in a big way.

      In the Code, Maimonides often expands on Tannaitic (Mishnaic) or Amoraic (Talmudic) rulings, adapting them to the customary practice of the Geniza merchants, especially the world of partnerships and long-distance trade. Examples of this “updating” to be discussed in this chapter come from disparate corners of the halakha: the laws of charity; the laws of ‘eruv; laws concerning rest on the intermediate days of the festival; a halakha about commerce and the Sabbath; regulations concerning a husband’s conjugal duties; and finally, a halakha regarding the impotent husband. These alterations, sprinkled throughout the Code, constitute strong evidence that Maimonides had his eye on the realities of post-Talmudic, Islamicate trade and the custom of the merchants when he compiled the Code. He wrote commerce, especially long-distance trade, into the halakha in places that did not originally deal with that aspect of Jewish economic life. While precedents for some of these modifications can be found in Gaonic or Andalusian writings, taken as a whole they illustrate Maimonides’ original and concerted effort to narrow the distance between law and society in this important domain of human activity, recalling for us Alan Watson’s hypothesis about the possible role of codification in reconciling law with society, as well as Blidstein’s query suggesting the possibility of finding modifications in Jewish commercial law in Maimonides’ Code.

      3.2 Commerce and Charity

      A subtle but typical example, already mentioned in a previous publication, occurs in Maimonides’ laws of charity, Gifts for the Poor (Hilkhot mattenot ‘aniyyim)³ The halakha in question (7:14) states: “If a person travels for commerce [bi-sḥora] to another town and is assessed for [pasqu ‘alav] charity by the inhabitants of the town he went to, he must contribute to the poor of that town. If [the merchant travelers] are many and they are assessed for [pasqu ‘alayhen] charity, they should pay it, and when they leave they should bring the money back with them to provide sustenance for the poor of their own town. If there is a scholar [in the other town], they should give [the money] to him to distribute it as he sees fit.”

      Two Sephardic commentators, whose commentaries surround the Maimonidean text in the standard printed editions—R. David ibn Abi Zimra (Radbaz, d. 1573), chief rabbi of Egypt in the first half of the sixteenth century; and R. Joseph Caro (d. 1575), who lived in Safed, Palestine—found precedent for this halakha in tractate Megilla 27a–b in the Babylonian Talmud. The Talmudic statement there is virtually the same as that of Maimonides, save for the word bi-sḥora, “for commerce.” It does not take much imagination to hear in this gloss an echo of the highly mobile commercial society of the Islamic Mediterranean in which Maimonides lived, a society whose contours are so familiar to us from the legal literature of the Geonim and the Andalusian sages, from the responsa of Maimonides, and, above all, from the Geniza records. The addition of the word bi-sḥora, one example of many such “updates”