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 Living in the post-Talmudic Islamic world, Maimonides understands medinat ha-yam to mean travel abroad for the specific purpose of “commerce” (halakh bi-sḥora). As he does with other halakhot, he wants to make absolutely certain that the concessions for the impotent husband are extended to traveling merchants, a cadre of people represented abundantly in the Geniza documents and in his own responsa.41
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The glosses pertaining to commerce in Maimonides’ Code discussed in this chapter illustrate the codifier’s effort to adjust rabbinic law to conform with the complex trading economy of the Islamic world. While most of these updates do not involve substantive changes in the halakha, they show that Maimonides intended his Code to serve a practical purpose for merchants and especially for judges faced with litigations arising from long-distance commercial ventures. In this, he went beyond his predecessor in Spain, R. Isaac Alfasi, whose abridgment of the Talmud, by dint of its structure and language, hews closer to the classical text, even though in his responsa, he frequently addresses immediate mercantile issues.42 While Maimonides had precedents for some of the adjustments discussed in this chapter, and while it is possible that one of the Geonim, in some responsum or mini-code that has not survived (or surfaced in the Geniza), had interpolated references to “commerce” that were absent in the Talmud, it is nonetheless significant for appraising Maimonides’ contribution that it was he who made the updated law part of the Jewish legal canon.
Chapter 4
Partnership
4.1 Partnership: Shutafut/Sharika/Khulṭa; ‘Isqa; Commenda (Qirāḍ/Muqāraḍa/Muḍāraba)
Long-distance trade in the highly mobile, monetized economy of the Islamicate world required partners and agents. Forms of partnership and agency relations, old and new, came to play a more important role in Jewish economic life.1 In this chapter, I deal with partnerships, Jewish and Islamic. In Chapter 5, I take up the institution of commercial agency.
The old Talmudic institution of joint partnership (Hebrew, shutafut; Arabic, sharika or Khulṭa [“mixing,” i.e., of capital]) was readily available to Jewish merchants. Talmudic partnership is a formal institution, relying on a written contract between the parties, spelling out the nature and terms of their joint business venture, and requiring qinyan, the symbolic act confirming agreement, comparable to the handclasp, the ṣafqa accompanying the contract (‘aqd) concluding a deal in an Islamic court.2 Typically, a partnership entailed the purchase or sale of a commodity or commodities, using money or goods invested jointly by the partners, all of whom shared both losses and gains. As we saw in the previous chapter, Maimonides updated some halakhot regarding partnership to conform with business practices in the Islamicate marketplace.
Another form of commercial collaboration dating from Talmudic antiquity, called ‘isqa in Aramaic (Hebrew, ‘eseq), resembles a “silent partnership.” The invested funds or goods originate with one of the partners only while the other contributes the work. The investment could be misconstrued as a loan, in which the return to the stationary investor looked suspiciously like repayment of principal plus interest, which is forbidden between Jews by biblical law. To avoid the appearance of usury, the rabbis of the Talmud construed this as a partnership with half the investor’s money being considered a deposit and the other half a free loan (Bava Meṣi‘a 104b).3 Of the proceeds from the active party’s business deals, half the profit was considered a product of the loan and accruing to him after repaying the loan amount, and the other half as profit on the investor’s deposit and for the latter’s benefit, after deducting an amount for the active partner’s services. The active partner was held responsible for loss only to the portion of the investor’s deposit.4
Talmudic rules governing business cooperation were compatible with the geographically limited Jewish commerce of the Talmudic period; but in the expanded economy of the Islamic world, with its extensive long-distance trade, Talmudic halakha imposed certain limitations on mercantile arrangements.5 Muslim merchant practice, on the other hand, offered options for commercial collaboration that permitted greater flexibility. Differing from the traditional Jewish joint partnership while sharing some features with the ‘isqa was a form of commercial cooperation popular among Muslim merchants called qirāḍ (also muqāraḍa or muḍāraba). This partnership resembled and bore the advantages of the later, Latin commenda and was likely its model.6 Operating as a kind of mutual loan, one partner “lent” money or goods to the other, who “lent” his work (though he might also invest some capital), returning to the investor an agreed-upon portion of the profit and keeping the rest