party and the investor had not recorded the stipulations in a contract; rather, they had agreed about this orally in front of the active partner’s two brothers, who happened to be his designated heirs.
The traveling merchant sold the investor’s merchandise but failed to deliver the latter’s money as directed. Instead, be purchased other goods with the proceeds and departed for another destination by sea. When the ship on which he was traveling capsized, he lost his life, and only a portion of the goods that he was transporting could be salvaged. The investor demanded that the man’s heirs pay him the entire original capital and all his profits because their brother had violated the conditions agreed to in their presence. Because there was no written contract, the case came before the Jewish court and ultimately was submitted to Maimonides for his opinion. He ruled that the truth about the agreed conditions could be ascertained only by the heirs taking an oath, the typical method of resolving disputes in both the Jewish and the Islamic courts in the absence of third-party testimony.44
The provision in halakha 5:1 about credit and the custom of the merchants reflects problems that could, and often did, arise when partners failed to stipulate whether merchandise could be sold on credit. Islamic schools of law discuss and disagree about whether a partnership contract needs to specifically stipulate permission to trade on credit.45 Gaonic opinions were divided on the matter as well, but the power of merchant custom driving the commercial economy, in which credit was an essential tool, overcame compunctions in the Jewish, as it did in the Islamic, case.46
A responsum of the Babylonian Gaon Samuel b. Ḥofni (d. 1013) relates the story of a merchant-traveler who engaged in credit transactions. His action was challenged by the stationary partner, who claimed that he had not granted the man permission to extend credit to customers. The Gaon supported the active partner’s actions because the man was putting his own money in jeopardy as much as that of his partner and because the stationary partner had not formally stipulated in advance that the other person should not sell on credit. The former, moreover, could not invoke the Talmudic rule expressed in the contract clause, “I sent you for my benefit, not to my detriment,” because the active party was neither an agent nor a paid employee but rather a partner.47
Sale on credit was always potentially problematic because of the effort needed to collect what was due. Understandably, many stationary investors instructed their active partners to avoid such transactions. An example from the Geniza is a partnership contract among four investors in which the single, active partner agreed explicitly not to sell on the basis of “deferred payment” (ṣabr), meaning at a higher price, a way of circumventing the prohibition against taking interest among Jewish coreligionists.48
Maimonides’ ruling on credit transactions in halakha 5:1 acquires particular significance in light of the extensive use of credit in the world of the mobile Geniza traders. In a situation where instructions about credit are not specified, Maimonides rules that everything depends on local merchant custom. The itinerant partner may not “sell on credit except that which it is always the custom to sell on credit—unless [both partners] stipulated this at the outset or [the active partner] acted with the other’s knowledge. If he deviates and acts without the other’s knowledge and afterward tells him, ‘I did such-and-such’ and [the stationary partner] consents to this, then the former is not held liable.”
The 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
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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
