Maimonides and the Merchants. Mark R. Cohen
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5), unlike partnership, was typically initiated orally, without written contract and without other formalities required by Talmudic law in partnerships. Maimonides, who, we shall see, instituted a significant reform in agency law, takes cognizance of this widespread phenomenon in the halakha under discussion here.
Unlike the halakha in the Code permitting trade on the intermediate days of a festival (section 3.3 above), this one, regarding the Sabbath, is stricter, in line with the Talmud and the sanctity of the day of rest. We are witness to the codifier’s eye on contemporary economic life and hear a clear warning against the permissive attitude of Jewish merchants, who might be tempted to engage in trade on the Sabbath, or at least plan commercial ventures on the day that was biblically devoted to rest.
3.6 Commerce and a Husband’s Conjugal Duty
A dramatic example of Maimonides’ method of updating the halakha for a trading society is a halakha found in chapter 14 of Laws of Marriage (Hilkhot ishut), discussing a husband’s conjugal duty to his wife, a duty stipulated in the Torah (Exod. 21:10) and discussed in the Talmud.
The underlying rabbinic source, as recognized by the commentators, is the Mishna in Ketubbot 5:6, which establishes a relationship between a husband’s profession and his obligatory conjugal obligation. “If a man vowed to have no intercourse with his wife, the School of Shammai says: [She may consent] for two weeks. And the School of Hillel says: For one week [only]. Disciples [of the Sages] may continue being absent for thirty days against the will [of their wives] while they occupy themselves in the study of the law; and laborers for one week. The conjugal duty of a husband enjoined in the Torah [Exod. 21:10] is: every day for ṭayyalin; twice a week for laborers; once a week for ass-drivers; once every thirty days for camel-drivers; and once every six months for mariners. So R. Eliezer.”26
Unsurprisingly, the Mishna assumes a noncommercial context. Furthermore, the focus is on persons who work locally (laborers, usually agricultural), or who travel away from their locality temporarily for study (not for trade), or who work in the “transportation industry” (ass-driver, camel-driver, mariners), occupations that necessarily took them away from home for shorter or longer periods of time. Left undefined are the ṭayyalin.
Maimonides bases his halakha on this Mishna but with significant elaboration. He begins (14:1) by stating as a general rule that a husband’s obligation varies with his physical powers and his occupation. This general statement, a classic example of the “topic sentences” with which Maimonides introduces many chapters in the Code, flows from particular stipulations in the Talmud about the health of a husband or about his occupation, whether he be a tailor, weaver, ass-driver, mariner, or Torah scholar, and the schedule he must keep to in order to fulfill his conjugal duty.
The conjugal duty enjoined in the Torah depends on each man according to his physical ability and his occupation. In what way? Men who are healthy, leading a comfortable and pleasurable life, who have no occupation to sap their strength, but who rather eat and drink and dwell in their own houses: their conjugal duty is every night. Laborers, like tailors, weavers, and construction workers, etc.: if their work is in the town, their conjugal duty is twice a week, and if their work is in another town, once a week. Ass-drivers: once a week. Camel-drivers: once in six months. Mariners: once in six months. Disciples of scholars: their conjugal duty is once a week, because Torah study saps their strength, and it is the practice of disciples of scholars to have intercourse on Sabbath eve once a week.
The halakha that follows (14:2) elaborates on the first. Noteworthy is the fact that it begins by introducing someone who seems not to have been taken into consideration by the Talmud: the long-distance merchant of the Geniza world.
A wife may restrain her husband from traveling for commerce [seḥora] unless it is to a nearby place, so that he does not neglect his conjugal duty toward her. Hence he may not travel except with her permission. Similarly, she may restrain him from exchanging one occupation involving a frequent conjugal schedule for one involving an infrequent schedule, as, for example, an ass-driver who seeks to become a camel-driver (the former’s conjugal schedule being once a week and the latter’s once a month) or a camel-driver who seeks to become a mariner (whose requirement is once in six months). Disciples of scholars [talmidei ḥakhamim] may travel away to study Torah without their wives’ permission for as long as two or three years. Similarly, if a man leading a comfortable and pleasurable life becomes a disciple of scholars, his wife may not restrain him at all.
The key to understanding Maimonides’ inclusion of the traveling merchant at the beginning of this halakha is the undefined ṭayyalin of the Mishna. The rabbis of the Babylonian Talmud had no clear idea what this term meant, except that it connoted people who, unlike the others, live at home and are free from laborious obligations. One rabbi proposed that ṭayyalin are “day students,” who, by nature, study nearby or in the town and can spend every night at home and thus be available sexually to their wives nightly.
In his Commentary on the Mishna, completed a decade before the Code, Maimonides defines ṭayyalin, with contemporary realia in mind, as “those who live an easy and restful life and do not engage in trade or in doing a service” (alladhīna lā yatjurūna wa-lā yakhdumūna).27 We shall later see (Chapter 5, section 5.12) that the verb yakhdumūna is not part of a hendiadys with yatjurūna; rather, the verb yakhdumūna captures with precision the most common method of commercial cooperation in the Geniza world, called, among other terms, khidma, “service,” a form of agency characterized by reciprocal commercial services. For the present, we may infer from Maimonides’ ruling in the Code—and assume that he himself inferred—that those who do travel for commercial purposes are governed by a different standard, due to the mobile nature of their profession. Maimonides’ understanding of ṭayyalin allows him to implicitly employ the rabbinic hermeneutic device hayoṣe‘ min ha-kelal ha-melammed ‘al ha-kelal (“the exception to the rule that proves the rule”) to teach that, while “a wife may restrain her husband from traveling for commerce [seḥora] unless it is to a nearby place,” he may travel afar if she gives her permission. This wifely permission represented a necessary relaxation of the law in an economy that required merchants to travel great distances to faraway places and for long stretches of time.
Clearly, however, Jewish wives regularly gave their permission.28 In a clause in a betrothal contract, a bride-to-be promises her groom that, once married, she will allow him to travel whenever he wishes.29 The Geniza and the responsa of Maimonides copiously show that Jewish traders traveled as far as Spain and India and might be away from home and their wives for years at a time. Special arrangements often had to be made, such as allocating money for the wife’s maintenance before departure. Alternatively, a husband might give his wife a conditional divorce document (geṭ ‘al tenai or geṭ zeman), to go into effect after a stipulated period of time should he fail to return.30 With this in hand, she could claim her divorce and be free to remarry.31
Real-life examples from the Geniza reveal how husbands and wives dealt with the hardships of long-distance separation. A legal document from the Geniza stipulates that a husband who intended to travel abroad agree to allocate twenty dirhems per month, namely, five per week, for his wife, plus some wheat. The stipend was to be used to pay his annual poll tax as well as for rent and other household expenses.32 In another case, a woman complains that her husband traveled frequently without leaving her sufficient food. She took an oath refusing to cohabit with him any longer.33 Another legal document (dated Tammuz 1356 Sel./1045 C.E.)34 reports that a wife and her husband agreed that he could travel until a specific date. He left behind a geṭ, which, if he tarried, she could activate and become divorced.35 Restrictions regarding husbands’ travel were often written into prenuptial agreements, betrothal deeds, and marriage contracts.36
Sometimes an absentee husband settled down in a new place and asked his wife to join him there, or wished to take a second wife in his new location. Such cases gave rise to legal queries, as illustrated by a question posed to Maimonides, in which he ruled,