Published online by Cambridge University Press: 14 November 2012
Scholars agree that medieval Jewish legal writers responded to “the needs of the times” in making their legal rulings, carefully choosing the legal sources and precedents upon which they relied, rereading or even rejecting those sources in light of their quotidian reality. Particularly in the Geonic Period, as Talmudic norms encountered a geographically expansive community experiencing radical social transformations in the engagement with Islam, as well as rapid economic development concomitant with the rise of the ʿAbbāsids, which urbanized and transformed the economic life of the Jewish community, classical sources of Jewish law faced new pressures. Geonic leaders responded to these pressures by making recourse to the traditional institutions of taqqana (Hebrew, “legislative enactment”) and minhag (Hebrew, “custom”). Therefore, it is widely accepted that the vicissitudes of daily life influenced both the responsa of the Geonim and their contributions to the expanding codificatory literature. On the other hand, the potential influence of Jewish legal norms upon daily life remains an unsettled area in the study of the history of the premodern Jewish community. A paucity of documentary or archaeological evidence complicates this problem, and edited literary texts of various genres remain themselves among the most important witnesses to Jewish life in the period.
1. The manner in which legal writers responded to “the needs of the time” is subtle. The classical discussion in this area is certainly that of Haym Soloveitchik, who focuses on Jewish legal decision making in medieval Europe. Soloveitchik argues that “nothing could be farther from the mind of any religious person, not to mention a man of the Middle Ages, than an attempt of set purpose to align a divine norm with temporal needs.” (Soloveitchik, Haym, “Can Halakhic Texts Talk History?” AJS Review 3 (1978): 174CrossRefGoogle Scholar). However, he points out that “under certain specific conditions, circumstances did play a role (if only mediately) in the birth of ideas.” That social and economic pressures forced legal change within the Jewish community of the medieval Islamic world is noted by Robert Brody, who describes actual legislative innovations on the part of the Geonim of Babylonia in order to accommodate their circumstances; see Brody, Robert, The Geonim of Babylonia and the Shaping of Medieval Jewish Culture (New Haven: Yale University Press, 1998), 62–64Google Scholar. Gideon Libson's study of geonic custom (Libson, Gideon, Jewish and Islamic Law: a Comparative Study of Custom during the Geonic Period, Harvard Series in Islamic Law [Cambridge, MA: Islamic Legal Studies Program of Harvard Law School, 2003], 25ffGoogle Scholar) points out instances in which various Geonim vindicated custom by recourse to biblical sources, even where that custom ran counter to Talmudic law. Libson explains that the modification or suppression of an existing law to accommodate custom would sometimes be effected with a legal sleight of hand: referring to Naṭronai Gaon (middle/late ninth century), Libson writes that “[s]ometimes, to ease the replacement of an earlier law by a custom, he posits a basis other than suggested by other geonim. For example, he attributed the nullification of the ketubbat benin dikhrin to the inability to carry out valid assessments rather than to the increase in dowries providing adequate sustenance for daughters.” (Libson, Jewish and Islamic Law: A Comparative Study of Custom during the Geonic Period, 30) In this case, Naṭronai struck down existing law on procedural grounds in order to vindicate what happened to be a custom. Likewise, Libson writes of Hai Gaon (d.1038), that “he obscures a possible contradiction between the Talmud and custom, interpreting the Talmudic text in such a way as to explain away the contradiction and thus embedding the custom in the law, without intimating that his particular interpretation is in fact guided by custom; he is therefore able, in practice, to reject Talmudic law in favor of custom.” (Libson, Jewish and Islamic Law: a Comparative Study of Custom during the Geonic Period, 33) Although, according to Libson, custom was not generally incorporated into legal decisions through emending the Talmudic text, (Libson, Jewish and Islamic Law, 33). Geonic authorities may have been helped by natural shifts in semantic signifiers from the Rabbinic to the Geonic period, which would have allowed them to align custom with their reading of Talmudic literature. With specific reference to Maimonides, Gerald J. Blidstein asks, “[t]o what degree does Maimonides’ work consciously respond to its time?” (Blidstein, Gerald J., “Where Do We Stand in the Study of Maimonidean Halakhah?” in Studies in Maimonides, ed. Twersky, Isadore [Cambridge, MA: Harvard University Press, 1990], 27Google Scholar) He responds that “… Maimonides’ Code responds to contemporary realities when they can be related to Biblical-Talmudic institutions or, put differently, when they bear on norms found in the traditional literature before him, when they can become part of an interpretative process.” (Blidstein, “Where Do We Stand in the Study of Maimonidean Halakhah?,” 27–28).
2. The term “gaon” refers to the rabbinic authorities of the yeshivot (Hebrew, “academies”) of Babylonia and the Land of Israel, who held sway over Jewry in Islamic lands (that is, numerically, the vast majority of world Jewry) from the sixth century to roughly the middle of the eleventh, following the close of the Babylonian Talmud. For a discussion of this periodization, see Brody, The Geonim of Babylonia and the Shaping of Medieval Jewish Culture, 3–18.
3. For a discussion of the economic transformations that underpinned the urbanization of Jewish life, see Goitein, S. D., Jews and Arabs, their Contacts through the Ages (New York: Schocken Books, 1955; reprint, 1974), 101–5Google Scholar. Brody also sees “the shift from an agrarian to an urbanized, commercial society,” which necessitated some modifications in Jewish law and life (Brody, The Geonim of Babylonia and the Shaping of Medieval Jewish Culture, 63). Norman Stillman discusses the effects of these changes on the economic role of the Jewish community; see Stillman, Norman A., The Jews of Arab Lands: a History and Source Book (Philadelphia: Jewish Publication Society of America, 1979), 29Google Scholar. Marina Rustow carefully distinguishes between the effects of urbanization and westward migration; see Rustow, Marina, Heresy and the Politics of Community: the Jews of the Fatimid Caliphate (Ithaca: Cornell University Press, 2008), 5Google Scholar, and places the latter in the tenth century.
4. Brody (The Geonim of Babylonia and the Shaping of Medieval Jewish Culture, 62–64) and Libson (Libson, Jewish and Islamic Law) both allude to these pressures and the legal developments which they precipitated.
5. For a discussion of the taqqana in the Geonic Period, see Elon, Menachem, Jewish Law: History, Sources, Principles (Philadelphia: Jewish Publication Society, 1994), 643ff.Google Scholar. Brody also discusses legislative enactments of the Geonim in Brody, The Geonim of Babylonia and the Shaping of Medieval Jewish Culture, 62–64.
6. Libson discusses the influence of Islamic law on Jewish law in the Geonic Period in Jewish and Islamic Law: a Comparative Study of Custom during the Geonic Period, making particular reference to custom “as the prime channel through which such influence flowed.” (Libson, Jewish and Islamic Law: a Comparative Study of Custom during the Geonic Period, ix).
7. Brody discusses the responsa literature generally in The Geonim of Babylonia and the Shaping of Medieval Jewish Culture, 185ff..
8. For a general discussion of the codificatory literature of the Geonim, see Elon, Jewish Law: History, Sources, Principles, 1149ff.
9. See pages 7–9 below for a further discussion of the Geniza sources. For an introduction to the Geniza and a brief survey of its contents, see Goitein, S. D., A Mediterranean Society: the Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, 6 vols. (Berkeley: University of California Press, 1967), I:1–28Google Scholar.
10. Throughout this paper, the word “Rabbanite” will be used to refer to the segment of the Jewish community which “considered themselves bound by the accumulating corpus of postbiblical tradition contained in classical rabbinic literature and its commentaries.” (Rustow, Marina, Heresy and the Politics of Community (Ithaca: Cornell University Press, 2008), xvGoogle Scholar) For a discussion of the historiography of the political/religious landscape of the Jewish community of medieval Egypt, see Rustow, Heresy and the Politics of Community, especially pp.xv-xxxiii and 3–35.
11. That Jewish litigants had access to Islamic courts throughout the medieval period is well established: Brody hints at the importance of this access in Babylonian in The Geonim of Babylonia and the Shaping of Medieval Jewish Culture, 62–63; see also Libson, Jewish and Islamic Law: a Comparative Study of Custom during the Geonic Period. As for medieval Egypt, see Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, I:398–402. In fact, Geniza documents do periodically include the phrase “Arabic document” (“kitāb ʿarabī”) which was likely a document from an Islamic court; see, for example, TS 16.138, a partnership dissolution agreement from the rabbinical court in Alexandria dated 1138 CE, for which the partnership itself was just such a document. Further allusions to such documents come from letters and legal documents alike: see TS 13 J 20.26 (a letter from Alexandria, dated 1062 CE), TS 12.134 (from late eleventh/early twelfth century Tyre); Bodl Ms Heb b 3.7 (dated 1232 CE); and Bodl Ms Heb d 66.88 (from Cairo, ca. 1095 CE). As Gil mentions with respect to the latter document (cf. Gil, Moshe, Documents of the Jewish Pious Foundations from the Cairo Geniza (Leiden: Brill, 1976), 219 n.5Google Scholar), not all transactions effected in Muslim courts were treated as valid by Jewish authorities, but the possibility of forum shopping cannot be gainsaid, and these documents attest to it.
12. My dissertation project, Phillip I. Ackerman-Lieberman, “A Partnership Culture: Jewish Economic and Social Life Seen through the Legal Documents of the Cairo Geniza” (Phd diss., Princeton University, 2007), brought to light just such a corpus, editing more than 100 heretofore unpublished legal documents from the Geniza concerning economic partnerships and demonstrating a general correspondence between the partnership relations described in those documents and the typology of partnership established by Maimonides in the Mishneh Torah.
13. Key scholars in the field of “Lawlessness and Economics” include Avinash K. Dixit and Diego Gambetta, who, like Greif, turn to extralegal institutions to govern economic and social behavior. The terms “Gesellschaft” and “Gemeinschaft” are used in this article, despite the fact that they are not used by Greif and his interlocutors, because Greif's discussion of “individualist” and “collectivist” societies blurs what Greif nonetheless seems to understand as the source of group-specific behavioral norms for the Maghribi traders. Although Greif asserts the existence of an “endogenous partition” between the Maghribis and the rest of the society in which they find themselves (Greif, Avner, “Cultural Beliefs and the Organization of Society: a Historical and Theoretical Reflection on Collectivist and Individualist Societies,” Journal of Political Economy 102 : 942CrossRefGoogle Scholar), his use of the term “collectivist” applies to the entire society and actually says nothing about the source of the Maghribis’ specific group norms. I do not intend to argue that no such “endogenous partition” existed, but only that it existed more broadly between Jews and Muslims, as the Jewish court system educated Jewish merchants as to the norms according to which members of the court would encourage Jewish merchants to structure their relationships. Thus, Tönnies’ language of Gesellschaft and Gemeinschaft better points to the central tension that I wish to address in this article.
14. This scholarship will be discussed on pages 9–11 below; the most prominent representative of this view is Avner Greif, who began his studies of these traders in his MA thesis and his PhD dissertation (Avner Greif, “The Organization of Long-Distance Trade” [PhD diss., Northwestern University, 1989]).
15. Although the Mishneh Torah itself does not emerge until the late twelfth century, while many of the Geniza documents and agreements discussed in this article emerged in the eleventh (and, on rare occasion, in the tenth) century, the clarity of Maimonides’ typology of partnership in the Mishneh Torah makes it an attractive yardstick by which to evaluate the implementation of Talmudic norms by the North African Jewish community, which happened to live in and directly before the period of its composition. However, this article will make regular reference to the ninth century Babylonian Halakhot Gedolot and the eleventh century North African Halakhot Rabbati of Isaac Alfasi in order to highlight for the reader the precise precedents to which jurists of the eleventh and early twelfth centuries would have been exposed.
17. Thus, Schacht writes that “[t]he law of contracts and obligations…was ruled by a customary law which respected the main principles and institutions of the sharīʿa, but showed a greater flexibility and adaptability.” (Schacht, Joseph, “The Schools of Law and Later Developments of Jurisprudence,” in Law in the Middle East, ed. Khadduri, Majid and Liebesny, Herbert J. [Washington, D.C.: Middle East Institute, 1955], 77–78Google Scholar).
18. Udovitch, Partnership and Profit in Medieval Islam, 7.
19. Jeanette Wakin discusses another case of this phenomenon, the development of formulary literature in the early Islamic world; she notes that “[w]hile doctrine may have neglected the written instrument, in practice it was indispensable.” (Ṭaḥāwī, Aḥmad ibn Muḥammad and Wakin, Jeanette A., Jāmiʻ al-kabīr fī al-shurūṭ. The Function of Documents in Islamic Law: the Chapters on Sales from Ṭaḥāwī's Kitāb al-shurūṭ al-kabīr. Edited with an introduction and notes by Jeanette A. Wakin (Albany, NY: State University of New York Press, 1972), 9Google Scholar).
20. Goitein explains that “[i]f we exclude the many thousands that are mere scraps of paper, we arrive at the number of about 10,000 items of some length” (Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, I:13); including these “mere scraps,” the total is likely closer to 15,000 (as per Rustow, Rustow, Heresy and the Politics of Community: the Jews of the Fatimid Caliphate, xx). As for the size of the Geniza as a whole, current estimates are in the range of 280,000 pages, though the actual number may well be significantly higher. (cf. Rustow, Heresy and the Politics of Community: the Jews of the Fatimid Caliphate, xx n.3)
21. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, I:10.
22. See, particularly, Appendix C, “Industrial Partnerships”, ibid., pp. 362–367.
23. Goitein, S.D., Letters of Medieval Jewish Traders (Princeton: Princeton University Press, 1974), 141.Google Scholar
24. Goitein explains that “[i]n our book, A Mediterranean Society, we have studied twenty-six contracts of industrial partnership, many of which are nothing but veiled forms of employment…” (Goitein, S.D., “Commercial and Family Partnerships in the Countries of Medieval Islam,” Islamic Studies 3 (1964): 317Google Scholar). By comparison, Letters of Medieval Jewish Traders contained translations of approximately 80 commercial letters, a small fraction of the epistolary corpus that was the primary basis for A Mediterranean Society.
25. Udovitch, Partnership and Profit in Medieval Islam, 257.
27. Udovitch, Abraham L., “Formalism and Informalism in the Social and Economic Institutions of the Medieval Islamic World,” in Individualism and Conformity in Classical Islam, ed. Banani, Amin (Wiesbaden: Harrassowitz, 1977), 64.Google Scholar
28. Cf. Ibid., 78, discussing the eleventh century merchant and communal leader Nahray b. Nissim: “Nahray was thus the nodal point of several networks in a system in which relationships were highly individual and nontransitive.”
29. See, for example, Greif's doctoral dissertation, Greif, “The Organization of Long-Distance Trade.”
32. Udovitch, “Formalism and Informalism in the Social and Economic Institutions of the Medieval Islamic World,” 75.
33. Therefore, “... generations after a Maghribi trader emigrated from the Maghrib, his descendants continued to operate in long-distance trade through the descendants of other Maghribi traders. Evidence of business association between Maghribi traders and non-Maghribi traders (Jewish or Muslim) is rare.” (Greif, “Reputation and Coalitions in Medieval Trade: Evidence on the Maghribi Traders,” 877).
34. Greif, Avner, “Contract Enforceability and Economic Institutions in Early Trade: The Maghribi Traders' Coalition,” American Economic Review 83 (1993): 539.Google Scholar
37. For their study, see Edwards, Jeremy and Ogilvie, Sheilagh, “Contract Enforcement, Institutions and Social Capital: the Maghribi Traders Reappraised,” in CESifo Working Paper #2254 (2008)Google Scholar.
38. Goitein, Letters of Medieval Jewish Traders, 6.
39. See footnote 23 above.
40. The discussion focuses on primary agency appointment; Jewish law does require that an agency appointment document be written when a secondary agent is appointed and for other activities such as acceptance of a divorce decree.
41. Cf. Maimonides, Laws of Agents and Partners, 3:1ff. Likewise, the formularies of Saʿadya Gaon (cf. Ben-Sasson, Menahem, “Fragments from “The Book of Testimony and Documents” of Rabbi Saadiah Gaon,” Shenaton ha-mishpaṭ ha-ʻIvri: shel ha-Makhon le-ḥeqer ha-mishpaṭ ha-ʻIvri, ha-Universiṭa ha-ʻIvrit bi-Yerushalayim 11–12, [1983–1985]Google Scholar) and Hai Gaon (cf. Sherira, Hai ben and Assaf, Simha, Sefer ha-sheṭarot [Jerusalem: Azriel Press, 1930]Google Scholar) do not contain a formula for agency appointment, nor does the twelfth century French Sefer ha-ʿIṭṭur (Mari, Isaac ben Abba and Glanovsky, Meir Jonah, Sefer ha-ʻIṭṭur [Jerusalem: s.n., 1969], 98ff.Google Scholar). The documents from eleventh century Lucena published by Joseph Rivlin reflect a concern with debt collection (cf. Rivlin, Joseph, Shiṭre qehilat al-Yusana: min ha-meʾa ha-aḥat-ʻeśre [Ramat Gan: Hoṣaʾat Universiṭat Bar-Ilan, 1994], 169ff.Google Scholar).
42. Ibn Rushd's material on agency in the Bidāyat al-mujtahid does not even allude to the writing of agency documents (cf. Averroës, Bidāyat al-mujtahid wa-nihāyat al-muqtaṣid, ed. Muḥammad, ʿAbd al-Ḥakīm b., 2 vols. [Cairo: al-Maktaba al-Tawfīqiya, n.d.], II:457–61Google Scholar); nor does the Ḥanafī jurist al-Qudūrī (Quṭlūbughā, al-Qāsim ibn ʻAbd Allāh Ibn, Yūnus, Ḍiyāʾ, and Mays, Khalīl, al-Taṣḥīḥ wa-al-tarjīḥ ʻalá mukhtaṣar al-Qudūrī [Beirut: Dār al-Kutub al-ʻIlmīya, 2002], 272–78Google Scholar). As Wakin points out, early Islamic doctrine eschewed the use of written documents in general (cf. Ṭaḥāwī and Wakin, Jāmiʻ al-kabīr fī al-shurūṭ. The Function of Documents in Islamic Law: the Chapters on Sales from Ṭaḥāwī's Kitāb al-shurūṭ al-kabīr, 4). For Islamic formularies that contain formulae for agency appointment, see Ṣadafī, Aḥmad ibn Mughīth and Sādaba, F. Javier Aguirre, al-Muqniʻ fī ʻilm al-shurūṭ (Madrid: al-Majlis al-Aʻlā lil-Abḥāth al-ʻIlmīya, 1994), 289ff.Google Scholar; and Aḥmad ibn Muḥammad Ṭahāwī and Ūzjān Rawḥī, al-Shurūṭ al-ṣaghīr (Baghdad: Iḥyāʾ al-turāth al-Islāmī, 1974), II:598ff.).
43. Goitein's aforementioned article (cf. footnote 24 above) mentioning 26 partnerships preceded publication of the first volume of his A Mediterranean Society, in which he detailed 27 partnerships.
44. Cf. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, I: Appendix C.
45. See the second volume of my dissertation, Ackerman-Lieberman, “A Partnership Culture: Jewish Economic and Social Life Seen through the Legal Documents of the Cairo Geniza,” for transcriptions and translations of more than 100 heretofore unpublished Geniza documents concerning economic partnerships, including some that were described by Goitein in the aforementioned appendix.
46. Thus, in his aforementioned article “Formalism and Informalism in the Social and Economic Institutions of the Medieval Islamic World,” Udovitch does not mention the word “Jew” once, despite the fact that all of the documents underpinning his conclusions emerge exclusively from the hands of Jews.
47. See the detail in my dissertation, Ackerman-Lieberman, “A Partnership Culture: Jewish Economic and Social Life Seen through the Legal Documents of the Cairo Geniza.”
48. “Partnership” is used here to refer specifically to arrangements whereby both individuals contribute capital and labor to a partnership, whereas “investment partnership” is used here to refer specifically to arrangements whereby one individual contributes capital to a partnership, while the other contributes labor.
49. There are some exceptions to this. For example, Maimonides’ insistence that partners initiate their partnership by placing partnership in a common purse and lifting it up is absent from the Book of Partnership of Samuel b. Ḥofni (d.1034) (cf. Benjamin Manasseh Lewin, “Ginze-qedem: meʾasef madaʻi li-teḳufat ha-geʾonim,” [Haifa: Ginze qedem, 1921], VI:41), although this requirement is maintained by Isaac Alfasi (d.1103) (cf. Isaac ben Abba Mari and Glanovsky, Sefer ha-ʻIṭṭur, s.v. “shituf”).
50. Although the legal documents of the Geniza themselves periodically use (Judeo-)Arabic terminology to refer to these various categories, the categories of agency, partnership, and investment partnership hold in the Geniza documents.
51. Cf. Mishneh Torah, Laws of Agency and Partnership 1:1. As mentioned, the exception to this principle is agency appointment for debt collection, for which Maimonides does require a formal agency appointment (cf. Mishneh Torah, Laws of Agency and Partnership 3:1ff.) and for which the Geniza does provide textual witness (see, for example, ENA NS 50.32 [dated 1050 CE, in Fusṭāṭ]; INA D 55.7 [dated 1115 CE, in al-Maḥalla in the Nile Delta]; TS 8 J 4.7 [dated 1184 CE, in Fusṭāṭ]; and TS NS J 11, which seems to have emerged from the hand of the scribe Ḥalfon b. Manasseh, whose dated documents date from 1100 CE to approximately 1138 CE, and who served the court in Fusṭāṭ).
52. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, I:171.
53. Supporting his statement that the commenda was more common than the ʿisqa, Goitein cites an “express statement to this effect in Maimonides’ Responsa,” which he cites as Responsa Maimonides 91. However, the “express statement” could instead be translated as follows: “The partnerships of most people at this time concerning overseas trade allocate a third of the profit to the workers, according to the tradition of the Muslims.” (Translation mine.) There is no reason to believe that the questioner was restricting himself to, or even concerned with, the trading partnerships of Jews when he laid out this generalization. Alternatively, it is possible that the questioner (unidentified here) came from Fez, which maintained a distinctive local commercial custom identified in a responsum of Sherira Gaon (d.c.1000). (Cf. Ben-Sasson, Menaḥem, Ṣemiḥat ha-qehilla ha-yehudit be-arṣot ha-Islam: Qairavan, 800–1057 (Jerusalem: Hoṣaʾat sefarim Y.L. Magnes, 1996), 93–94Google Scholar, based on a responsum of Sherira Gaon published in Lewin, “Ginze-qedem: meʾasef madaʻi li-teḳufat ha-geʾonim,” V:115–17).
55. See, for example, Responsa Maimonides 32. The phrase qirāḍ (Arabic, “commenda”) is also used in Responsa Maimonides 93, although there the questioner considers the possibility that an arrangement had been formed either as a Muslim commenda or a Jewish ʿisqa. Responsa Maimonides 400 (preserved in Hebrew, rather than Judeo-Arabic) alludes to an agreement formed on the model of ʿisqat ha-goyim.
56. ENA 2727.23a Recto.
57. Islamic law: see Udovitch, Partnership and Profit in Medieval Islam, 170. Jewish law: see Maimonides, Laws of Agents and Partners 7:1 and its Talmudic source in Talmud Bavli Bava Meṣiʿa 68b–69a.
58. Note that many documents are not in a sufficiently good state of repair for any scholar to discern the planned distribution of profits and losses, and others simply leave it out, a problem that equally plagues the epistolary material. However, the following documents do contain detail concerning the distribution of partnership losses: Bodl Ms Heb b 11.2 (dated 1131 CE, in Fusṭāṭ); ENA 2727.23a Recto; Mosseri A 126; Mosseri VII 17; TS 12.108 (date not preserved, from Fusṭāṭ); TS 16.21 (ca. 1140 CE); TS 16.23 (attributable to eleventh century Fusṭāṭ by virtue of the scribe having been Hillel b. Eli); TS 16.87 (dated 1097 CE, in Fusṭāṭ); TS 18 J 1.9 (dated 1160 CE, in Fusṭāṭ); TS 8 J 6.9 (dated 1231 CE); TS AS 147.3 (dated 1213/14, in Fusṭāṭ); TS K 25.153 Verso; TS Misc 28.259 (dated 1095 CE, likely in Fusṭāṭ because of the identification of the scribe as Ḥalfon b. Manasseh); and ULC Or 1080 J 73 (attributable to eleventh century Fusṭāṭ by virtue of the scribe having been Hillel b. Eli).
59. That is, TS 16.23.
60. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, I:176.
61. See note 58 above for a list of a number of such documents.
62. See, for example: TS 13 J 2.5 (dated 1095 CE, in Fusṭāṭ), a release from a commenda (Arabic, “muḍāraba”); or Gottheil-Worrell VII (dated 1151 CE), in which the litigant identifies himself specifically as a party to a commenda and not a “partner” (Arabic, “muqāriḍ lā sharīk”), cited in Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, I:442, n.31.
63. See, for example: Bodl Ms Heb a 3.16 (dated 1139–40 CE, in Fusṭāṭ), although the documents may have been a deed of purchase rather than a partnership agreement in this case; TS 16.138 (dated 1077 CE, in Alexandria); TS NS J 30 (dated 1232 CE, in Minyat Zifta, near Fusṭāṭ), which reveals a court case being brought to the Jewish court, which had already been decided in an Islamic court.
64. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, I:179.
66. See, for example, BM Or 10126.6, discussed subsequently, which reveals the court permitting a loan at interest.
67. For the purposes of this article, “ordinary partnerships” are those for which both partners provide both capital and labor; whereas (as mentioned) “investment partnerships” are those for which only one partner provides capital and the other provides labor.
68. Mishneh Torah, Laws of Agents and Partners 4:1. Note that Alfasi also maintained this requirement (see note 49 above).
69. As pointed out by Ibn Rushd, Shāfiʿī alone declares the “common purse” to be an absolute requirement. (cf. Averroës and Abdul-Rauf, Muhammad, The Distinguished Jurist's Primer: a Translation of Bidāyat al-Mujtahid, 2 vols. (Reading: Garnet, 1994), II:391Google Scholar). Note that the opinion of Ibn Ḥazm accords with that of the Shāfiʿī school in that the investment of the two parties should be physically intermingled until the investment of one party cannot be differentiated from that of the other (cf. ʻAlī ibn Aḥmad Ibn Ḥazm, 994–1064 and Aḥmad Muḥammad Shākir, al-Muḥallā (Cairo: Idārat al-Ṭibāʻa al-Munīrīya, 1928), microform).
70. That is, Bodl Ms Heb a 3.8 (dated 1134 CE, in Fusṭāṭ); ENA NS 17.35 (likely from the first half of the eleventh century, Fusṭāṭ); TS 10 J 7.6 B (dated 1149 CE, likely from Fusṭāṭ); TS 12.464 (dated 1091/2 CE, in Fusṭāṭ); TS 12.710 Verso (dated 987 CE, in Fusṭāṭ); TS 16.168 (dated 1077 CE, in Alexandria); TS 20.21 (dated 1076 CE, in Fusṭāṭ); TS 8 J 11.14 (early thirteenth century CE, in Fusṭāṭ); TS 8 J 32.3 (dated 1162 CE, in Fusṭāṭ); TS Misc 28.263 (dated 1112 CE); and TS NS J 74. ENA NS 13.34 (dated 1208 CE, in Bilbays) is a similar agreement, noting that the partners “brought out the capital…[and] commingled the total”, although it does not mention the “middle” in specific.
71. That is, TS K 25.153 Verso. Bodl Ms Heb b 11.2 is an investment partnership agreement that mentions a purse (“kis”), but in this case the purse is deposited by the investor with the agent rather than lifted up by two partners in an act of initiation.
72. Goldberg, Jessica, “Business, Businessmen and Work in the Medieval Mediterranean: Reconsidering the ‘Maghribi' Traders,” in Social Norms Workshop (Princeton: Princeton University 2008), 17.Google Scholar
73. The Judeo-Arabic term for this sort of partnership is “muʿāmala.” See my dissertation, Ackerman-Lieberman, “A Partnership Culture: Jewish Economic and Social Life Seen through the Legal Documents of the Cairo Geniza”, 128–30, for a discussion of the term muʿāmala in the documents and scholarly attempts to understand this term.
74. Udovitch outlines these differences in Partnership and Profit in Medieval Islam ; see, in particular, 29–39 for the Shāfiʿī view, 119–41 for the Ḥanafī view, and 145–46 for the Mālikī view.
76. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, I:156.
77. See, for example: ENA NS 13.34, in which investment was split 71%/29%, and profits and losses split evenly; ENA NS 17.35, in which investment was split 95%/5%, and profits and losses split evenly; TS 13 J 3.19 (dated 1207 CE, in Fusṭāṭ), in which investment was split 91%/9%, and profits and losses split evenly. See also TS 10 J 27.3 C (dated 1107 CE, in Cairo), in which investment was split 91%/9%, and profits and losses were split 66%/33%.
78. Despite Udovitch's statement that the models of partnership described by these legal schools were too inflexible to be useful for a system of Mediterranean trade in the high middle ages, it is worthwhile noting that it was actually the Mālikī school that held sway in al-Andalus at least through the decline of the Andalusian Umayyad caliphate (cf. Wasserstein, David, The Rise and Fall of the Party-Kings: Politics and Society in Islamic Spain 1002–1086 [Princeton: Princeton University Press, 1985], 174Google Scholar); whereas in Egypt the Ayyūbid regime (1171–1250 CE) was vigorous in supporting the Shāfiʿī school (Lapidus notes that the Ayyūbids appointed only chief qāḍīs of the Shāfiʿī school; cf. Lapidus, Ira M., “Ayyubid Religious Policy and the Development of Schools of Law in Cairo,” in Colloque international sur l'histoire du Caire, ed. Raymond, André [Cairo: Egyptian Book Organisation, 1972])Google Scholar.
79. Maimonides: Laws of Agency and Partnership 5:2; Sarakhsī: Sarakhsī, Muḥammad ibn Aḥmad, Shāfiʻī, Muḥammad Ḥasan Muḥammad Ḥasan Ismāʻīl, and ʻInānī, Kamāl ʻAbd al-ʻAẓīm, Kitāb al-Mabsūṭ (Beirut: Dār al-Kutub al-ʻIlmīya, 2001), XI:188Google Scholar, cited in Udovitch, Partnership and Profit in Medieval Islam, 124, “… If … one of them buys something outside of this specific category, it belongs exclusively to him.”
80. See, for example, the colorful narrative of partnership capital invested and re-invested in Bodl Ms Heb d 66.5 and Bodl Ms Heb c 28.11, discussed in Mark R. Cohen, “A Partnership Gone Bad: A Letter and a Power of Attorney from the Cairo Geniza, 1085,” in Sasson Somekh Festschrift, ed. David Wasserstein and Mahmud Ghanaim (forthcoming).
81. For example, in the manner suggested by TS 13 J 3.19, which stipulates that the partners are to transact in “medicinal commodities.”
82. Thus, the Ḥanafī formulary of Ṭaḥāwī (d.935) records “…whatever types of goods they see fit…” (“…mā raʾyā min anwāʿ ʾl-tijārāt…”, Ṭahāwī and Rawḥī, al-Shurūṭ al-ṣaghīr, 736. Emphasis mine.) See also the Mālikī formulary of Ṭulayṭulī (d.1067) (Ṣadafī and Aguirre Sādaba, al-Muqniʻ fī ʻilm al-shurūṭ, 249), which reads similarly, but even more specifically (“li-yatjurā bi-hā fī sūq kadhā min balad kadhā wa-yataṣarrafān bi-hā fī ʾl-tajr al-madhkūr wa-fīmā ẓahara lahumā min anwāʿ ʾl-tajr,” “in order that the two of them would transact therein in such-and-such a market in such-and-such a place and that the two of them would act independently therein in the aforementioned commerce and in what appears to them of the various types of commerce”). The Shāfiʿī formulary of Nuwayrī (d.1333) reads, “that which the two of them wish and choose from the various sorts of commodities and the various types of merchandise” (Nuwayrī, Aḥmad ibn ʻAbd al-Wahhāb, Nihāyat al-arab fī funūn al-adab, 18 v. in 16; 28 cm. vols. [Cairo: Maṭbaʻat Dār al-Kutub al-Miṣrīya, 1923Google Scholar), IX:186].
83. Including Judah ben Barzillai and Solomon J. Halberstam, Sefer ha-Sheṭarot (Jerusalem, 1966), 116–17, which also includes the phrase, “…whatever God facilitates for us in order to profit…”; and Ben-Sasson, “Fragments from “The Book of Testimony and Documents” of Rabbi Saadiah Gaon,” 206 at l.14, where the Heavens are again invoked. The eleventh century Andalusian Jewish documents published by Joseph Rivlin reveal a similar expansiveness (cf. Rivlin, Shiṭre ḳehilat al-Yusana: min ha-meʾa ha-aḥat-ʻesre 205 at l.5). In short, the Jewish formulae include the word “all” when referring to the types of merchandise, which the Islamic formulae do not, suggesting that the “types of merchandise” to which the Islamic formulae refer are specified, whereas those in the Jewish formulae are not.
84. See Hai ben Sherira and Assaf, Sefer ha-sheṭarot, 33–35. However, it is worthwhile noting that transacting in the presence of one's partner is not the same thing as agreeing ex ante as to the commodities in which one will transact, and such a stipulation would clearly be ridiculous for long-distance traders.
86. See footnote 81 above.
87. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, I:178.
88. Hereafter designated BM Or 10126.6.
89. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, II:334.
90. Mishneh Torah, Laws of the Sanhedrin (the “Great Court”) 23:9.
91. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, II:335.
93. Saḥīḥ Muslim, Kitāb al-Aqḍiyya, ch.4.
95. Rosen, Lawrence, The Anthropology of Justice: Law as Culture in Islamic Society (Cambridge: Cambridge University Press, 1989), 18.Google Scholar
96. David Powers also points to the mediative role of the qāḍī, albeit in extremis: “Mālikī procedural law sometimes made it difficult or impossible for a qāḍī to issue a judgment … [i]n such cases the qāḍī might nevertheless play a key role in the resolution of a dispute by offering his services as a mediator.” (Powers, David S., Law, Society, and Culture in the Maghrib, 1300–1500, Cambridge Studies in Islamic Civilization [Cambridge: Cambridge University Press, 2002], 19CrossRefGoogle Scholar).
97. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, II:338.
98. For example, Mordechai A. Friedman points out that Responsa Maimonides 34 and 45 demonstrate a particularly clear example of this phenomenon.
99. Jurisconsults would often write their responsa at the bottom of the page on which a question had been submitted to them. Thus, the voice of the questioner can at times be identified as distinct from that of the respondent. This conclusion emerged out of a personal communication with Mordechai A. Friedman.
100. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, II:339.
101. Mallat, An Introduction to Middle Eastern Law, 83ff.. Therefore, Mallat seems to believe that the practice of settlement rather than adjudication is a rooted fixture of “Middle Eastern Law” of long duration.
102. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, II:339.
103. See, for example, the analysis of Berachyahu Lifshiz (Lifshitz, Berachyahu, “Compromise,” in Mishpetei Eretz: A Collection of Essays in Halachic Law, ed. Unger, Yaron (Ofra: Mishpetei Eretz Institute for Halacha and Law, 2002)Google Scholar), which concludes from a detailed review of classical rabbinic sources that peshara consists of the parties’ agreement to submit to the judgment of the court (Lifshitz, “Compromise,” 145).
104. See, for example, TS 8 J 4.2b (dated 1026 CE), which points out specifically that the court “intervened with the power of peshara” (“anna yatawassaṭū bi-koaḥ peshara”); TS 18 J 1.23 (dated 1007 CE, in Fusṭāṭ), similarly alluding to “intervention” of elders, though also pointing out that all the parties demonstrated their satisfaction with the “peshara” (“asqaṭa min jamīʿihim bi-ʾl-riḍa bi-hādhahi ʾl-peshara”); ULC Mss Add 3339b (dated 1218 CE, in Bilbays), alluding to “intervention” (“wa-tawassaṭū bi-derekh peshara”); and Westminster College Fragments Cairens 49b (dated 1098 CE, in Fusṭāṭ), which attests to a settlement concerning a load of milk products made “by judgment of peshara” (“wa-istaqarra al-ḥāli baynahumā fī ʿilāwat albān be-din peshara”). See also TS 8 J 8.1 (which can be dated between 1213 and 1233 CE by virtue of the addressee Yehiel b. Eliakim, who serves the court of Abraham Maimonides in Fusṭāṭ in the early thirteenth century), which is not itself a legal document but instead record of a legal inquiry in which the questioner points out that righteous elders had “executed peshara” between a man and his wife (“ve-ʿasu ziqnei yosher peshara benehem”).
105. See, for example, the document formed by the union of ENA 3805.15 and Bodl Ms Heb B 13.38 (dated 1094 CE), which mentions that the “peshara” was implemented by the litigants themselves, without the ruling of a court (“ve-istaqarra baynanā bi-peshara bi-ʾkhtiyārinā min ghayr ḥukmi ḥākimin”; cf. Goitein's analysis of this, Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, III:279-80); and TS 20.32 (dated 1057 CE), which records that the litigants were initially encouraged to engage in “peshara” among themselves (“ki ha-raʾui lakhem she-taʿasu peshara benekhem”).
106. See footnote 103 above.
107. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, II:342.
108. This is not to say that the Jewish court never executed its decision-making power; TS 13 J 3.12 (dated 1165 CE, in Fusṭāṭ) notes that elders “came between them and decided between them” (“dakhalū baynahumā ziqne yosher ve-khosher [ohave shalom] ve-qarraru baynahumā”); and TS 16.333 (dated 1098 CE) contains a similar phrase. See also the documents mentioned in footnote 104 above.
109. This situation changed somewhat with the arrival of the Ayyūbids (1171–1250), who enforced a Sunnī doctrinal orthodoxy with greater fervor (see Chamberlain, Michael Milton, “The Crusader Era and the Ayyūbid Dynasty,” in The Cambridge History of Egypt, Volume 1, ed. Petry, Carl F. [Cambridge: Cambridge University Press, 1998], 232Google Scholar).
110. As mentioned previously, the Qurʾān rejects an evidentiary role for documents in general, but court practice clearly admitted such documents from the early period, as explained by Wakin (see footnote 19 above). Jewish law generally gives legal force to documents.
111. For a further discussion of the role of legal phraseology in scribal practice, see Ackerman-Lieberman, Phillip I., “Legal Writing in Medieval Jewish Cairo,” in ‘From a Sacred Source': Geniza Studies in Honour of Professor Stefan C. Reif, ed. Bhayro, Siam and Outhwaite, Benjamin (Leiden: Brill, 2010), 1–24Google Scholar.
112. See Wakin's discussion of iḥtiyāṭ in Ṭaḥāwī and Wakin, Jāmiʻ al-kabīr fī al-shurūṭ. The Function of Documents in Islamic Law: the Chapters on Sales from Ṭaḥāwī's Kitāb al-shurūṭ al-kabīr, 32ff.
113. Fuller, Lon, “Mediation—Its Forms and Functions,” Southern California Law Review 44 (1971): 308.Google Scholar
114. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, II:334.
115. Fuller, “Mediation—Its Forms and Functions,” 326.
117. Waldman, Ellen, “The Role of Social Norms in Mediation,” Hastings Law Journal 48 (1997): 707.Google Scholar
121. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, II:335.
122. See, for example, the case from Damīra, in Lower Egypt, mentioned by Goitein (Ibid., II:339).
123. Waldman, “The Role of Social Norms in Mediation,” 745.
124. That is, BM Or 10126.6.
125. Waldman, “The Role of Social Norms in Mediation,” 739–40.
126. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, I:256.
127. Belhorn, Scott, “Settling Beyond the Shadow of the Law: How Mediation Can Make the Most of Social Norms,” Ohio State Journal on Dispute Resolution 20 (2005): 1010–11.Google Scholar
128. See note 53 above.
129. Belhorn, “Settling Beyond the Shadow of the Law: How Mediation Can Make the Most of Social Norms,” 1014.
130. Ḥanina, Sherira ben, Sherira, Hai ben, and Alfasi, Isaac ben Jacob, Teshuvot ha-geʾonim: sheʾelot u-teshuvot mi-kama geʾonim uve-yiḥud me-Rav Sherira gaʾon, mi-beno Rav Hai gaʾon umeha-Rav Yiṣḥaq Alfasi, ed. Harkavy, Albert, Kasher, Menaḥem, and Perla, Jeroham Fishel (Jerusalem: Ṣevi Hirsh, 1965), 215, #423Google Scholar. A second Gaonic responsum, published in Nissim Ḥayyim Moses Modaʿi, ed. Shaʿarei Ṣedeq: Teshuvot ha-Geʾonim (Jerusalem: Hoṣaʾat sefarim “Kelal u-Feraṭ,” 1966), 165, concerning the practice of keeping written accounts, refers to “minhagei ha-soḥarim” (Hebrew, “the customs of the traders”), although the latter custom hardly transgresses Talmudic norms.
131. Brody, The Geonim of Babylonia and the Shaping of Medieval Jewish Culture, 62–63.
132. For a discussion of the dating of Halakhot Gedolot, see Ibid., 228ff.
133. ben David Ibn Daud, Abraham, Sefer ha-qabbalah: A Critical Edition with a Translation and Notes of the Book of Tradition, ed. and trans. Cohen, Gerson D. (Philadelphia: Jewish Publication Society of America, 1967), 65–66.Google Scholar
134. Introduction to the Mishneh Torah, trans. Menaḥem Elon (Elon, Jewish Law: History, Sources, Principles, 1184).
135. See Brody, The Geonim of Babylonia and the Shaping of Medieval Jewish Culture, 223ff. for a discussion of the various recensions of Halakhot Gedolot.
136. Halakhot Gedolot, Laws of Circumcision, p.154.
137. Halakhot Gedolot, Laws of Divorce Decrees, p.410.
138. Halakhot Gedolot cites Yehudai a number of times, although these citations may be the result of the close association between a work generally entitled Halakhot of Rav Yehudai Gaon, Halakhot Pesuqot, and Halakhot Gedolot, all of which were codificatory works, rather than to an attempt by Shimʿon Qayyara, the author of Halakhot Gedolot, to reconcile the rulings of Geonic authorities with their Talmudic sources.
139. Maimonides, Moses, Mishna with the Commentary of Moses b. Maimon, ed. Kafaḥ, Yosef (Jerusalem: Mossad ha-Rav Kuk), I:47.Google Scholar
140. Eighth century: Yehudai (cited in Halakhot Rabbati, Yevamot 29b, Bava Qamma 27b); eleventh century: Hai (cited in Halakhot Rabbati, Berakhot 5b ff.; Shabbat 54a, inter alia.).
141. Isaac ben Abba Mari and Glanovsky, Sefer ha-ʻIṭṭur, I42, s.v. “Shituf”.
142. I have been unable to locate the specific responsum of Alfasi to which the ʿIṭṭur alludes. The material from the Book of Partnership of Samuel b. Ḥofni has been published by Lewin in Lewin, “Ginze-qedem: meʾasef madaʻi li-tequfat ha-geʾonim,” VI:41; and Friedlander in Friedländer, Israel, “Fragments of the Book of Partnership of Rabbenu Samuel b. Ḥofni,” in Festschrift zum siebzigsten Geburtstage David Hoffman's, ed. Eppenstein, Simon, Hildesheimer, Meier, and Wohlgemuth, Joseph (Berlin: Louis Lamm, 1914), Hebrew Section, 83–97Google Scholar.
144. See, for example, TS 13 J 26.18, Verso l.24, published in Gil, Moshe, Erets-Yiśraʾel ba-tequfa ha-Muslemit ha-rishona, 634–1099 3vols. (Tel Aviv: Universiṭat Tel-Aviv ṿe-Miśrad ha-Biṭaḥon, 1983), Doc#356, II:661Google Scholar, a letter from the Gaon Daniel b. ʿAzarya to Fusṭāṭ from 1054 or 1055, which mentions the arrival of a “copy of a responsum.”
145. See, for example, BM Or 10599.8, l.2, from the early thirteenth century.
146. See, for example: AIU VII E 119 (probably from the late eleventh century, in Fusṭāṭ and/or Cairo), transcribed, translated, and published in Cohen, Mark R., “The Burdensome Life of a Jewish Physician and Communal Leader,” Jerusalem Studies in Arabic and Islam 16 (1993),Google Scholar 125–136; TS 13 J 21.25, transcribed, translated, and published in Frenkel, M., The Compassionate and the Benevolent: The Leading Elite in the Jewish Community of Alexandria in the Middle Ages (Jerusalem: Yad Ben Ṣevi, 2006), Doc#71, 533–35Google Scholar; and TS 20.133 (from the early thirteenth century, in Alexandria), which records the arrival in Alexandria of legal questions from “a distant land” to Maimonides.
147. Brody, The Geonim of Babylonia and the Shaping of Medieval Jewish Culture, 190.
148. Ben-Sasson discusses the integration of Babylonian scholars’ work into the literary production of the Qayrawānese authorities; Ben-Sasson, Ṣemiḥat ha-qehilla ha-yehudit be-arṣot ha-Islam: Qairavan, 800–1057, 258.
149. Cf. the aforementioned story from Sefer ha-Qabbalah, in which Ibn Daud reports that “… all questions which had formerly been addressed to the academies were now directed to him.” (Ibn Daud, Sefer ha-qabbalah: A Critical Edition with a Translation and Notes of the Book of Tradition, 66).
150. TS 20.133, mentioned in footnote 146 above, suggests that queries were directed to Cairo.
151. See, also, Menaḥem Elon's statement that “Alfasi's work supplanted many books of halakhot written in his own time and even later…” (Elon, Jewish Law: History, Sources, Principles, 1172).
152. Including individuals who served both as merchants and jurists/communal leaders such as Nahray b. Nissim (see Goitein, Letters of Medieval Jewish Traders, 145–46 for a brief précis of the life of Nahray).
153. See Menaḥem Elon's analysis of the statement of the eleventh century Spanish authority Joseph Ibn Megas in Elon, Jewish Law: History, Sources, Principles, 1183: “[r]ecourse to books of halakhot is superior to the research and analysis of the Talmud itself as a means of ascertaining the law…”
154. See the Introduction to the Mishneh Torah, cited by Elon (Ibid., 1185).
155. From Maimonides’ letter to the Alexandrian judge Pinḥas b. Meshullam, cited in Twersky, Isadore, Introduction to the Code of Maimonides (Mishneh Torah) (New Haven: Yale University Press, 1980), 32Google Scholar.
156. Renewals attached to releases: the document formed by the union of fragments TS 16.23 and TS 10 J 5.2; TS Misc 27.4.29 (dated 1093 CE, in Fusṭāṭ). The pattern of contract-release-contract renewal is also suggested by cases in which the renewal appears on a separate document; cf. Bodl Ms Heb a 3.20 (dated 1098 CE, in Fusṭāṭ), ULC Or 1080 J 73, and ENA 4020.2 (dated 1096, likely from Fusṭāṭ because the handwriting seems to be that of the scribe Hillel b. Eli), which reveal three individuals executing releases and subsequently (re-)initiating partnership relations with one another.
157. See, for example, Bodl Ms Heb b 11.2 and TS 16.21.
158. See, for example, Bodl Ms Heb a 3.8; ENA NS 1.90 (dated 1091 CE, in Fusṭāṭ); TS 8 J 32.3 (dated 1162 CE, in Fusṭāṭ); and TS 10 J 4.16 (a fragment that is joined with TS 16.158 and TS 10 J 4.17; dated 1115 CE, in Fusṭāṭ).
159. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, I:179.
160. Although documents executed in the Jewish courts periodically allude to documents “of the Gentiles” (Muslims): cf. TS 13 J 2.24 (dated 1139 CE, in Fusṭāṭ).
161. See, for example, Ben-Sasson, “Fragments from ‘The Book of Testimony and Documents’ of Rabbi Saadiah Gaon,” 262–63.
164. Cf. Talmud Bavli, Sanhedrin 32b.
165. Therefore, the document formula contains the line, “u-badaqna ve-lo eskaḥna li-akhruʿei hi minayhon de-qadim” (“we have searched and not found [reason] to overrule what has preceded”) (Ben-Sasson, “Fragments from “The Book of Testimony and Documents” of Rabbi Saadiah Gaon,” 263 at ll.17–18).
166. Therefore, TS 13 J 2.24 ratifies an agreement made by the parties on their own after they squabbled for an extended period over a document executed in an Islamic court; TS 13 J 2.2 (dated 1094 CE, in Fusṭāṭ) confirms an agreement that seems to have been made among the parties themselves (in this case, merchants in the “House of the Merchants”); as does TS 12.37 (dated 1093 CE). On the other hand, Bodl Ms Heb b 11.9 reveals the mid-eleventh century community leader Judah b. Saʿadya writing to the leader of the community of Ṣahrajt in the Nile Delta, asking the latter to “bring an end to the saga” through ṣulḥ.
168. Udovitch details the “Commenda with Limited and Unlimited Mandate” in Udovitch, Partnership and Profit in Medieval Islam, 204ff.; likewise, Maimonides goes into detail as to the consequences for an agent who trades outside the bounds of his discretion in his Laws of Agency and Partnership, particularly 8:7.
169. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, 155–56. Although bills of lading reveal that shipments as a whole contained commodities of many different sorts, and partnership agreements often give explicit permission to the agent to trade in whatever commodity he sees fit, the legal structures allowing principals to limit their agents are available through both Jewish and Islamic law.
170. Thus Udovitch argues that aspects of the commenda (as understood by Islamic law) point to its economic suitability for long-distance trade; for example, he writes that “[s]ince the commenda was presumably used primarily for long-distance trade, this type of flexibility for the agent was almost a sine qua non for a profitable venture.” (Udovitch, Partnership and Profit in Medieval Islam, 212).
171. Udovitch discusses the Islamic legal sources concerning credit in Udovitch, A.L., “Credit as a Means of Investment in Medieval Islamic Trade,” Journal of the American Oriental Society 87 (1967), 260–264CrossRefGoogle Scholar; surveying the Geniza documents, Goitein points out that “[b]usiness was normally conducted on credit, and to a far higher degree, perhaps, than is the case in our own society.” (Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, I:197).
172. Udovitch, Partnership and Profit in Medieval Islam, 196.
173. That is, transactions with negative expected value would be avoided. If partnership capital were viewed as a stock, then the difference between these two instruments could be described as an embedded at-the-money put option held by the agent, freeing him from liability if the stock decreased in value. The time horizon of long-distance partnerships may have been sufficiently long and the “risk-free” interest rate may have been sufficiently high relative to commodity-price volatility to drive down the value of this option, essentially minimizing actual economic differences between the ʿisqa and the commenda.
174. Udovitch discusses the role of custom in Ḥanafī law in Udovitch, Partnership and Profit in Medieval Islam, 253.