Halakha and the Custom of the Merchants

      2.1 The Babylonian Geonim and the Custom of the Merchants

      Maimonides’ predecessors, the Babylonian Geonim, were quick to recognize the transformation in Jewish economic life that followed the Islamic conquest and, in particular, the role that merchant custom—some of it inconsistent with Talmudic halakha—played in Jewish business affairs.¹ With unabashed transparency, they introduced modifications in Talmudic law, without having to call upon the Talmudic principle of dina de-malkhuta dina (“the law of the state is law”).²

      A prime example is the order of payment known as the suftaja. Muslim long-distance traders widely employed this fiscal instrument, and Jews themselves may have begun using it as early as the mid-eighth century.³ It is abundantly attested in merchant letters from the Geniza for the eleventh to early thirteenth centuries. In a typical example, person A needed to transfer money to a distant addressee, person C. To avoid the risk of loss of specie, through brigandage, or shipwreck, or other cause, he would send a suftaja in that amount with person B to the addressee, who would cash the suftaja through a local person holding money on behalf of person A. The avoidance of loss due to the danger of transporting specie was considered a benefit to person A, hence a veiled form of interest. For that reason, some Islamic legists objected to the device, and it was problematic for the Geonim as well.⁴

      Queried about the halakhic permissibility of the suftaja,5 an unnamed Gaon authorized its use, even though the Talmud (Bava Qamma 104b) ruled against employing a similar device, called diyoqne (diyuqne), a word taken from the Greek and betraying its origins in the pre-Islamic, Greco-Roman period.⁶ The responsum is significant, not only because it illustrates realistic rabbinic adjustment to economic change but also for its specific use of the term “custom (or law) of the merchants.” “Our halakha [fiqh] does not support the sending of a suftaja, as our rabbis said: ‘One may not send money with a diyoqne, even if witnesses have signed it.’ However, when we saw that people use it in doing business with one another, we began admitting it in court, lest trade among people cease. We sanction it, no more and no less, in accordance with the ‘custom (or law) of the merchants’ [ḥukm al-tujjār]. Such is the law and nothing should be altered in it.”⁷ The occurrence of the concept ḥukm al-tujjār in a Gaonic legal opinion—in a Geniza court record from 1141, it is referred to as al-‘āda bi-Miṣr bayn al-tujjār fī l-sharika, “the custom in Fustat among the merchants concerning partnership”⁸—sanctioning a practice frowned upon by the Talmud but essential in the monetized economy of the Islamic world, is telling. It is reminiscent of the Latin term lex mercatoria, “law merchant,” in medieval Europe, used to describe a body of marketplace customs peculiar to and shared by merchants, and which A. L. Udovitch long ago suggested had a counterpart in what he called “the ‘law merchant’ of the medieval Islamic world.”⁹ Leaving aside the contentious debate about the merchants’ law in Europe—whether such a corpus of laws really existed; and, if it did, where it first appeared; whether these customs originated with merchants or with legislation by the “state”; whether they represented the common, “transnational” practice of merchants everywhere; and how these customs were transplanted from place to place¹⁰—it is clear that the Geonim were aware of and concerned about merchant customs that contradicted Talmudic halakha. Their solution was to let custom override the halakha¹¹ and sanction the suftaja, as they said, “lest trade among people cease.” Saadya Gaon (d. 942) expressed the Gaonic rationale with similar resignation: “In all transactions of the merchants, diyoqna’ot [plural of diyoqne] are not acceptable according to strict law, but the merchants have disregarded [the prohibition] in order to facilitate their transactions.”¹² This comment and the remark “We saw that people use it in doing business with one another,” in the responsum on the suftaja indicate that Jewish merchants followed well-established customs of their economic class, adhering to norms that were not always consistent with the Talmudic legal system but that had been inscribed in Islamic law during its formative period. The Geonim certainly knew that if they did not accommodate the use of the suftaja, in any dispute concerning this device Jewish merchants would simply resort to Islamic courts, where the commercial instrument was recognized.¹³ Gaonic sanction of the suftaja meant that Jewish merchants could bring litigations involving this financial device before the Jewish beit din, rather than seeking resolution in the court of the Muslim judge. In the wake of the Geonim, the suftaja gained codified status as a valid “custom followed by the merchants” in the Halakhot of R. Isaac Alfasi and, later on, in Maimonides’ own Code, in the name of “my teachers” in al-Andalus.¹⁴

      Other Gaonic adjustments reflect their awareness of the new mercantile economy as well. In a taqqana from the second half of the eighth century, they ruled that widows claiming the money promised them in their marriage contract and payable upon the death of their husbands, as well as general creditors claiming repayment of a debt, could collect what was owed them from the deceased husband’s movable property. The Talmud stipulated that they could place a lien only on his real property. A responsum attributed to an early ninth-century Gaon explains the reason for the taqqana: “Here [in Babylonia], most people [i.e., Jews] do not own land.”¹⁵ The new rule had the dual purpose of protecting women’s postmarital livelihood and keeping credit flowing in an economy that very much depended on credit in the purchase and sale of commodities.

      In conforming Jewish law to the needs of the Islamicate marketplace, the Geonim faced a greater challenge than their Muslim counterparts. The formative period of Islamic law coincided with the Islamicate commercial revolution. In a seminal article, “The Rise of the Near Eastern Bourgeoisie in Early Islamic Times,” S. D. Goitein showed that most of the early Muslim jurists were themselves merchants, or at least au courant with merchant custom.¹⁶ Joseph Schacht had already shown that customary commercial law of pre-Islamic Mecca, echoed in commercial terms in the Qur’ān, entered Islamic law in its formative period.¹⁷ These customs, like the suftaja, were therefore absorbed into Islamic law as early as the eighth century. The most flexible and “liberal” of the law schools (madhhabs) in this respect, the Ḥanafīs, named after their founder, Abū Ḥanifa (d. 767), and, to a lesser extent, other legal schools incorporated these practices into Islamic law as it took shape.¹⁸

      In contrast, the formative period of Jewish law had long passed when the Islamicate commercial revolution arrived. The Geonim had a huge corpus of halakha from the pre-Islamic, Talmudic period to contend with, and this corpus served an agrarian society, not a highly commercialized, monetized society in which long-distance trade and credit