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” in the Code, epitomizes Maimonides’ effort to adapt Jewish law to the medieval Islamicate economy. It is worth noting, too, that Maimonides reverses the order of the discussion in the Talmud, placing an individual traveler before a group, perhaps to focus attention on travel by individual merchants, which was so prevalent in his day and age.
It is likely that Maimonides was familiar with a responsum of R. Naḥshon Gaon (871–879), who lived in Abbasid Iraq, explaining a different Talmudic passage. The Talmud (Bava Batra 8a) quotes a baraita explaining that a visitor who stays in a town for at least thirty days is obligated to contribute to local charity. Naḥshon specifies that this refers to a person who is traveling “for commerce” (bi-sḥora) and who stays at an inn. This describes perfectly the situation of merchants in the Islamic world, who arrived in a town, did their business in the local marketplace, and lodged at an inn (funduq) or caravanserai.4
It is even possible that Maimonides meant to specify that the obligation to give to charity when visiting a foreign city applies only to individuals traveling for commerce5 but not, for instance, to the itinerant poor. According to the Talmud (Giṭṭin 7b), indigents living off charity are themselves obligated to donate at least a small sum to charity. This was an ideal, and Maimonides codifies the Talmudic rule earlier in the same chapter of the Laws of Gifts for the Poor (7:5). But in the Geniza world, huge numbers of indigent travelers from near and distant parts of the Islamic domain and even from Byzantium and Latin Europe traveled from city to city, where, as the Geniza poor lists from Fustat copiously illustrate, they were entered into the local dole and were even expected to defray some fraction of their poll tax.6 It was unrealistic to expect them to contribute to charity as well. Merchant travelers, on the other hand, were financially more able to give, and we may imagine that, when they attended a local synagogue while on a business trip, they were solicited for charity. The Geniza documents for Egypt describe how this so-called pesiqa system worked (the verbal form pasqu is used by Maimonides in the halakha in question): people in the synagogue made pledges either for a general fund or a specific, needy person, often a newcomer to town.7
The term “for commerce” is absent in the epitome of the Talmud compiled by Maimonides’ Andalusian predecessor, R. Isaac Alfasi (d. 1103) (Megilla 8b in the pages in the printed Talmud). R. Asher b. Yeḥiel (Rosh, ca. 1250–1327) similarly omits the addition in his own code (Megilla 4:5). On the other hand, Maimonides’ gloss on the Talmud was accepted by Rosh’s son, Jacob b. Asher (d. 1340 in Toledo, Spain) in his Ṭur (Yoreh De‘a 256), as well as by Joseph Caro in both his commentary on the Ṭur (Beit Yosef, Yoreh De‘a 256:6), and his own code, the Shulḥan ‘Arukh (Yoreh De‘a 256). When Caro chose Maimonides’ updated ruling on the obligation of a traveling merchant to contribute to charity in another town, he put the final stamp of approval on a change that Maimonides, building on a Gaonic precedent, had codified in the twelfth century in an effort to harmonize an ancient halakha with the economic realities of the medieval Islamic world. Per Watson, we may say that he was attempting to bring law and society into greater harmony. The adaptation fit Caro’s own sixteenth-century economic milieu (Safed in his time was a major trading crossroads in Ottoman Palestine), a fact that may have encouraged him to accept Maimonides’ gloss “for commerce.” Normally, Caro followed the ruling of the majority among his three authorities, Alfasi, Maimonides, and Rosh; but in this case, he ignored Alfasi and Rosh, both of whom simply quote the Talmud, and adopted Maimonides’ update instead.
3.3 Commerce and the ‘Eruv
The gloss “commerce” (seḥora) appears in the Code in connection with the Sabbath ‘eruv, a symbolic device meant to enable people to carry items on the day of rest from a private dwelling to the common courtyard (Hebrew, ḥaṣer; Arabic, dār) and between disjoint living units in a common courtyard; or between disjoint courtyards opening onto a common alleyway (Hebrew, mavoi). The rabbinic solution was to symbolically aggregate separate domains into one so that people could move about freely, carrying items outside their private dwellings. This was accomplished by having all neighbors deposit an item of food in one of the living units.
One means of doing this is stipulated in Mishna ‘Eruvin 6:5 (and discussed in the Talmud, ‘Eruvin 71a): “If a householder is a joint owner [shutaf] with his neighbors, with one of them in wine and with the other in wine, they need not prepare an ‘eruv. But if with one it is wine and the other, oil, they must prepare an ‘eruv. R. Simeon says: In neither case do they
