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
* * *
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 for himself. Differing from the Talmudic ‘isqa, however, in the Islamic qirāḍ, the active merchant bore no responsibility whatsoever for financial losses to the stationary partner’s invested capital.7
The Islamic commenda offered distinct advantages in an economy in which investment and long-distance trade comprised such essential elements, and it was accepted at an early stage into Islamic law.8 It encouraged impecunious adventurers to take part in the enterprise, since they took very little personal financial risk, while they could anticipate benefiting from a portion of the profit. And it ensured investors ready access to business collaborators who were willing to do the hard work that they themselves did not wish to, or could not, do—work that usually entailed extensive travel and separation from family for long stretches of time.9 The risk that the active commenda partner took, apart from the usual physical dangers, was limited to the loss of his time and effort and the portion of the profits he had anticipated receiving.
Because of its advantages in long-distance trade, including exemption of the active party from responsibility for loss, the Islamic commenda constituted the most common type of collaboration between Jewish and Muslim merchants.10 Even among themselves, Jews chose to employ the Islamic form of commenda somewhat more often than the Talmudic ‘isqa.11 In such cases, halakhic authorities were constrained, grudgingly, to recognize the reality as well as the fact that Jewish merchants often had recourse to Islamic courts to register such contracts and adjudicate disputes.12 To be constituted in the Jewish court, a muḍāraba contract had to assign some responsibility for loss to the active partner.13 In his role as a Jewish muftī, Maimonides responded to queries involving commenda contracts, which, if they exempted the active party from responsibility for losses, signified what the halakha calls the “dust of usury” (avaq ribbit), a rabbinic concept broadening the usury prohibition in the Bible. For that reason, Maimonides insisted that Jewish traveling merchants be accorded a greater share of the potential profits than the percentage stipulated for the stationary partner in an Islamic commenda.14
Vexingly for the researcher and doubtless for contemporaries as well, the same word, qirāḍ, was used for both the Islamic commenda and the Jewish ‘isqa because of the similarity between the two institutions. Because of the ambiguity, however, sources—Maimonides’ responsa, especially—distinguish the two, calling the former qirāḍ al-goyim, “the qirāḍ of the Gentiles” (meaning Muslims); and the other, qirāḍ be-torat ‘isqa, “qirāḍ according to the Jewish law of ‘isqa.”15
4.2 Partnership Law in the Code
In what follows, I discuss several aspects of partnership and partnership law that Maimonides modified or updated in the Mishneh Torah in order to accommodate the custom of the merchants. Section 4.2.1 deals with a common practice of Geniza merchants to cope with risk by multiplying partnerships. The next section (4.2.2) discusses traveling partners. Section 4.2.3 takes up the question of partnership with a Muslim. The final section (4.2.4) addresses an aspect of partnership
