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Chapter 3

Updating 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 need to prepare an ‘eruv.”

Maimonides (Hilkhot ‘eruvin 5:1) retains the structure of the halakha but embellishes it with some revealing changes in the language. “If residents of an alleyway [mavoi] hold some article of food jointly for commercial purposes [shittuf le-‘inyan seḥora], for example, having bought wine, oil, honey, or the like in partnership [shutafut], they need form no additional token joint ownership [shittuf] for the Sabbath but may rely on their commercial joint ownership [shittuf shel seḥora]. The item in which they are partners [shutafin] must be the same type and contained in one vessel, but if one of them is partner [shutaf] with one person in wine and another in oil, or in oil alone but in two separate vessels, they must prepare an additional jointly owned [shittuf] item for the Sabbath [‘eruv].”

These alterations do not occur in any earlier reiteration of the Mishnaic ruling, including Alfasi’s a bridgment of the Talmudot occur in any earlier reiteration of the Mishnaic ruling, including Alfasi’s abridgment of the Talmud. Maimonides’ modifications, considerably elaborating on the Mishna, are steeped in significance. They demonstrate his effort to update classical rabbinic law in the light of the commercial realities of his time.

The rabbinic term for aggregating living units (apartments or whole courtyards) is shittuf, a word that is related to shutafut, “partnership.” Maimonides, who follows the Talmudic commentary and understands the Mishna to refer to the aggregation of multiple courtyards opening onto a common alleyway, infuses the text with the meaning of commercial partnership by adding the word seḥora. He also uses the Hebrew term for commercial partnership, shutafut, to explain how the jointly owned articles of food were acquired. Along the same lines, in his Commentary on the Mishna, Maimonides defines shutaf in ‘Eruvin 6:5 as sharīk, the Arabic term for “partner,” typically applied to commercial or craft partnerships (sharika). To further strengthen the contemporary connotation, he specifies “commercial joint ownership” (shittuf shel seḥora). Finally, he amplifies the Mishna by adding “honey” to the original list, a commodity, in addition to wine and oil, in which, according to the Geniza documents, people in the Mediterranean traded.⁸

I submit that these are not accidental or incidental modifications of the classical rabbinic text. They illustrate Maimonides’ careful choice of language, adapting an ancient halakha to fit the commercial context of the Islamic world in which he lived, a world in which partnership in business was much more common than in Talmudic times. This update, like the one in the Laws of Gifts for the Poor discussed above, is repeated by the later codifier, Jacob b. Asher (Ṭur Oraḥ Ḥayyim 366). He understood Maimonides’ intention to update the halakha and made it even more explicit: “If a householder is a commercial partner with his neighbors [shutaf ‘im shekhenav bi-sḥora], even if with one person in wine and another in oil, he does not need to create a separate ‘eruv, even if they had not formed the partnership for the sake of an ‘eruv, provided it is all in one vessel.”⁹

3.4 Commerce and Work on the Intermediate Days of the Festival (Ḥol Ha-mo‘ed)

An excellent example of how Maimonides builds on Gaonic and Andalusian precedents in an economic matter is to be had by considering the question of work on the intermediate days of a festival (Passover and Sukkot). This issue occupied the attention of the rabbis of the Talmudic period. The Mishna (Mo‘ed Qaṭan 2:4; Mo‘ed Qaṭan 13a in the Talmud) restricts labor on those days to certain types of religious or subsistence economic activity: “It is not permissible to buy houses, slaves, or cattle except for what is needed for the festival, or where the seller has nothing to eat.”

Characteristically, as this and other statements show, the discussion in the Talmud assumes agricultural work (Mo‘ed Qaṭan 12a–b). Further exemplifying subsistence economic activity, it permits a lender to write a contract of debt if a needy person who lacks food asks for a loan, and it allows copying the scriptural text for phylacteries and other ritual objects and selling them if need be for one’s own livelihood (Mo‘ed Qaṭan 18b–19a). An early post-Talmudic compilation comparing Palestinian and Babylonian customs reports that Palestinian Jews did not work on the intermediate days of the festival (ḥol ha-mo‘ed), whereas those in Babylonia did.¹⁰

3.4.1 Gaonic Background

In the increasingly urban setting of early Islamic Iraq, as the Geonim report, most Jews no longer owned land. Archaeology confirms that this was a period of overpopulation in the agricultural lands around the capital of Baghdad and of land flight to the cities.¹¹ R. Naṭronai b. Hilai, Gaon of Sura (ca. 857/58–865/66), presumably reflecting the Babylonian custom just mentioned, extended the permission to work on the intermediate days of the festival to include poor craftsmen who had no choice but to work on those days, even if they had to work in a public place in order to be spotted by potential customers (the question posed to him concerned tailors and sandal makers).¹² Naṭronai also permitted people to engage in trade (seḥora) on the intermediate days of the festival if transacted in the privacy of their houses, since business entails only talking, and he permitted doing business openly, if necessary, to avoid a lost business opportunity. Naṭronaii cites a precedent in the same tractate of the Talmud (Mo‘ed Qaṭan 10b) that allows work on the intermediate days to prevent produce (dates) from going bad, deemed analogous to making a business deal that, if postponed, would entail economic loss—the Talmudic concept of “lost business opportunity,” praqmaṭia ovedet (from Greek pragmateia, “business dealings”) or davar ha-aved.¹³

Elsewhere, Natronai takes cognizance of the expansion of long-distance trade in the Islamic world. He considers a situation where a caravan departs only twice a year and one of them is scheduled to leave on the intermediate days of the festival. The Gaon expands the Talmudic dispensation about copying religious texts and adds that one may write and send a letter with the caravan to accompany merchandise or to convey instructions to a business associate located in a distant city, in order to avoid financial loss or to protect the well-being of his own family.¹⁴ This allowance has all the earmarks of a concession to Jewish merchants. As the Geniza letters abundantly show, long-distance traders relied heavily upon letters reporting the activities of business associates, the progress of consignments of merchandise, and market fluctuations, and they regularly sent written instructions to partners or agents, instructing them about buying and selling and other matters vital to maximizing profits.¹⁵ One of the constant refrains in the letters of Geniza merchants is the complaint that letters have not arrived, causing anxiety. This is true of Muslim business letters as well.¹⁶

3.4.2 Andalusian Background

Merchant labor on the intermediate days of the festival occupies center stage in a fascinating question submitted to the Spanish legist R. Joseph ibn Migash (d. 1141), head of the yeshiva of Lucena, Spain, and teacher of Maimonides’ father. The questioner writes that he had “warned some people not to buy and sell on the [intermediate days of the] festival.” The violators complied by adhering to an even stricter standard, as prescribed by Ibn Migash in his teaching, by refraining from opening their shops or working even to avoid “lost business opportunity” or to meet the basic need for food. “Later,” the questioner writes, “some people arrived from Córdoba and ‘tore down this fence’¹⁷ by permitting buying and selling openly in the marketplaces. When I expressed my astonishment, they deferred in this matter to your excellency, may God exalt you. As a result, God’s name is being profaned in the presence of the Gentiles.”¹⁸

Ibn Migash praises the questioner for encouraging his own townsmen to go beyond the call of religious duty by suspending their economic activities on the intermediate days of the festival. At the same time, he rules that the outsiders from Córdoba should be permitted to trade if it means avoiding lost business opportunity or hunger. He also categorically denies that he had taught that trade on those days was permissible, even in the absence of the extenuating circumstances spelled out in the Talmud.

3.4.3 Maimonides’ Position on Work on the Intermediate Days

Like Naṭronai Gaon and like Ibn Migash, Maimonides addresses the issue of doing business on the intermediate days of the festival in his own responsa. He praises a rabbinic authority in Palestine for proclaiming a ḥerem (excommunication) against anyone working on the intermediate days of the festival (in Palestine, we recall, it was customary to avoid work on all days of the festival, including the intermediate ones). But in the next breath, he qualifies, following the Babylonian Gaon Naṭronai: “If it is a case of a business deal to avoid lost business opportunity, people should engage in business transactions” (yis’u ve-yittenu).¹⁹

Maimonides codified this opinion in the Code. In Hilkhot shevitat yom ṭov (Laws of Repose on a Festival) 7:22, a halakha informed by his own merchant perspective on daily life, he ruled: “One should not engage in trade [seḥora] on the intermediate days of the festival, whether selling or buying. But if it is something that, if postponed, would entail lost business opportunity [davar ha-aved] regarding something that is not always available after the festival, for instance, when ships or caravans have just arrived or are about to depart and people are selling cheap or buying dear—in such cases, a person is permitted to buy or sell (on the intermediate days). One may not, however, buy houses or slaves or cattle except if needed for the festival.”

Maimonides’ intimate knowledge of the realities of long-distance trade stands out boldly in his comments about ships and caravans and how their arrival or departure could affect market prices, an elaboration that goes beyond Naṭronai Gaon’s dispensation for writing letters to business associates. But Maimonides does not, like Naṭronai, restrict business to discussions in the privacy of one’s home. Rather, he resorts to a ruling in the rival Palestinian Talmud that allows doing actual business with a caravan that is arriving and then departing on the intermediate days of a festival to avoid lost business opportunity.²⁰

Notably, too, Maimonides extends Naṭronai’s ruling on caravans to include ships. This is not surprising. Maimonides lived in Fustat, a city intimately linked to commerce in the Mediterranean through the port of Alexandria and with India through the port of Aden and the Indian Ocean. He knew as well as anyone that the arrival and departure of ships was one of the determining factors in marketplace activity, and conceded that merchants needed to be on the spot to take advantage of their movements into and out of the harbor if they were not to forfeit business opportunities.²¹

Two halakhot later, Maimonides sanctions work on the intermediate days of a festival in a different context (Hilkhot shevitat yom ṭov 7:24): “Whatever is forbidden to do on the intermediate days of the festival one may not instruct a Gentile [goy] to do. If he has nothing to eat, he may do whatever is forbidden to do on the intermediate days of the festival to provide enough for his livelihood. Likewise, he may engage in commerce [‘oseh seḥora] to provide enough for his livelihood. It is permissible for a wealthy man to hire a poor man who has nothing to eat to do work that is otherwise forbidden on those days, so he may earn wages with which to provide for his livelihood. Likewise, one may buy things that are not needed for the intermediate days of the festival if the seller is in need and has no food to eat.”

The supposed Talmudic source for the first statement is: “Whatever he may do, he may instruct a Gentile to do, and whatever he may not do, he may not instruct a Gentile to do” (Mo‘ed Qaṭan 12a). The concern with the alleviation of poverty, also present in the Talmudic discourse, had particular immediacy in Maimonides’ Egypt. As I have discussed elsewhere, the Geniza attests to the presence of a large population of poor in the Jewish community of Fustat, local poor as well as transient indigents or needy people seeking to settle down in that charitable community.²² Each week, hundreds of hungry people, locals and foreigners, received a dole of loaves of bread and sometimes wheat as well.²³ The poor received subsidies to help defray the poll tax levied on every healthy, non-Muslim adult male. Geniza letters reveal that Maimonides was personally involved in charity in the community, particularly on behalf of redemption of captives (usually foreigners), the most costly item in the community’s charity budget.²⁴

The statement in 7:24 about protecting the hireling or the store owner from dearth addresses the plight of the “working poor” in Maimonides’ Egypt, who earned meager, subsistence wages and could not afford to sacrifice income for an entire week twice a year (ḥol ha-mo‘ed plus the festival days that precede and follow). Both weeklong Jewish festivals fell within the Mediterranean sailing season, which ran from April through October: the week of Passover in early spring and the week of Sukkot at the dawn of the fall/winter season.²⁵ Noteworthy is the clear allusion to Maimonides’ own “ladder of charity” near the end of the Laws of Gifts for the Poor (10:7), which puts employment of a poor person, entering into partnership with him, giving him a loan, or making an outright gift at the top of the list of commendable methods of charitable giving (“workfare” rather than “welfare,” to invoke anachronistically a political policy of some conservative opponents of government subsidies to the unemployed poor in American politics).

Most significant in terms of Jewish commercial life is the phrase sanctioning commerce: “Likewise, he may engage in commerce [seḥora] to provide enough for his livelihood.” By using the word “likewise” (ve-khen), Maimonides separates this clause from the sentences before and after it that address the needs of the poor and signifies that he is adding something new. Seemingly, according to the codifier, the permission to engage in trade exceeds the Talmudic rationale—the concern that people might starve.

The Geniza merchants, we must remember, were not indigent. For them, the threshold of basic livelihood was higher than the subsistence level assumed by the Talmud in its discussion of work during the festival interlude. The Geniza merchants’ livelihood depended upon doing business continually, with minimal interruption, constantly offsetting losses or potential losses with gains, always keeping their capital moving. Ships delivered and exported goods, and, for merchants, the inability to engage in trade during the full week of each of the two Jewish festivals could cost them dearly, especially because, as Maimonides himself states two halakhot earlier (Hilkhot shevitat yom ṭov 7:22), prices for buying or selling could be at their optimum when ships or caravans arrived. The halakha in question (7:24) follows naturally, therefore, from the earlier one, which explicitly allows transacting business with merchants traveling by ship or by caravan on the intermediate days of the festival and, by implication, in the marketplace itself, not just in the privacy of their homes, as stipulated more conservatively by R. Naṭronai Gaon. Refraining from work on the intermediate days of the festival could truly entail lost business opportunity—praqmaṭia ovedet.

Seemingly, Maimonides does not limit merchants’ activities to corresponding with business associates, as stipulated by Naṭronai Gaon. In his merchant guise, Maimonides knew that traders needed to have direct and immediate access to markets to take advantage of business opportunities and favorable prices that might not be available if they had to wait until after the conclusion of the festival week, especially if caravans or ships were arriving or departing. This reality, more typical of the commercial Islamicate economy than of the agrarian world of the Talmud, called for greater halakhic flexibility. In his rulings on work on the intermediate days of the festival, both in the opinion he addressed to the rabbinic authority in Palestine and in his Code, Maimonides appears to have had in mind the reluctance of Jewish merchants like those of his native Córdoba to take time off from their business affairs for so many consecutive days twice a year. The responsum of Ibn Migash, which Maimonides is likely to have known, describes explicitly the habit of those merchants to engage in buying and selling on the intermediate days. Ibn Migash responds that they should not be barred from doing so if it meant avoiding financial loss. What Maimonides appears to have done in the Code, and to have gone further in this respect than Naṭronai Gaon, is to stretch the definition of praqmaṭia ovedet to accommodate contemporary merchant habits.

Writing three and a half centuries later, R. Joseph Caro seems to have understood Maimonides this way. In his Beit Yosef, he writes (Oraḥ Ḥayyim 539:4): “It seems from what [Maimonides] says that it is only permissible when he has nothing to eat. But it is possible that he also permits [a merchant to work] when he has limited assets and wishes to profit by selling, so he will have a surplus of money, for this, too, is tantamount to ‘enough for his livelihood.’” Not just “enough for his livelihood” but “a surplus of money.” Caro understood, as did Maimonides, that earning a livelihood through trade required always keeping ahead of the game, never letting one’s cash reserves run low, never allowing one’s liquid assets to lie fallow. We seem, therefore, to be witness to another instance in which Maimonides, well versed in the ways of commerce and business in general, adjusted the halakha to conform to the entrepreneurial spirit of the post-Talmudic Islamicate economy.

3.5 Commerce and the Sabbath

Exemplifying Maimonides’ extension of a rabbinic law written in an agrarian context to fit the world of the Geniza merchants is his treatment of the question of certain types of work that must be avoided on the Sabbath. The Mishna, tractate Shabbat 23:3, states: “One may not hire laborers on the Sabbath, nor may one tell another person to hire laborers for him. One may not walk to the Sabbath limits [teḥum, the maximum distance allowed for a walk from home on the Sabbath] to await nightfall to hire laborers [i.e., to be nearer the place, beyond the limits, where one hires laborers] or to bring in produce, but one may do so to watch [one’s own field, located beyond the limit, immediately upon nightfall], and then he may bring [home] produce with him. Abba Saul stated the general rule: ‘Anything that I am permitted to instruct be done, I am permitted to await nightfall for it’” (i.e., at the Sabbath limits).

Like the Mishna, the Gemara (Shabbat 150a) situates this ruling in an agricultural context, exemplifying the principle with examples—hiring laborers and transporting produce—that indicate a society invested in farming.

Maimonides’ approach differs markedly. In Laws of the Sabbath 24:1, he updates the Mishnaic and Talmudic texts to conform more closely to a world in which long-distance trade was widespread.

Some acts are forbidden on the Sabbath even though they neither resemble nor lead to prohibited work. Why, then, were they forbidden? Because Scripture says, “If thou turn away thy foot because of the Sabbath, from pursuing thy business on My holy day.… And thou shall honor it, not doing thy wonted ways, nor pursuing thy business, nor speaking thereof (Isa. 58:13).” Therefore, one may not walk with one’s goods on the Sabbath or even speak about them, for instance, to speak with one’s partner [shutaf] about what to sell on the morrow, or what to buy, or how to construct a certain house; or what merchandise [seḥora] to take to such-and-such a place. These things and all others like it are forbidden, as it is written, “nor pursuing thy business nor speaking thereof,” which means that speaking [about business] is forbidden, though thinking [about it] is permitted.

The type of economy assumed by this Maimonidean halakha is not the local and regional agrarian economy of the Talmud but the more wide-ranging commercial economy of the Islamic world. The Mishna speaks about walking the distance to the Sabbath limits in order to wait there to hire agricultural laborers after nightfall, when the Sabbath ended, or to carry produce from there back home. By contrast, Maimonides specifies travel for business (“walk with one’s goods”), a significant nod to the long-distance trade pursued by Jewish (and Muslim) merchants. Then there is his all-important reference to partnership, which, in his time, represented a prominent (though not the primary) method of doing business, especially long-distance trade across the Mediterranean and India routes. This will be discussed in greater detail in Chapters 4 and 5.

Patently reflecting the agricultural society of the Talmudic era, the Mishna forbids instructing a person to “hire laborers for him.” Characteristic of the Geniza world, Maimonides exemplifies the kinds of verbal exchanges forbidden on the Sabbath with discussions that business partners would be likely to have. Such conversations might include plans for marketing after the Sabbath ended or the geographical scope of the partnership or agency relationship—“what merchandise to take to such-and-such a place”—which was especially important in long-distance commercial ventures, where one person was often stationary and the other did the work. Business collaboration through agency relations (see Chapter 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, in accordance with the Talmudic halakha (Shabbat 110a; cf. Mishneh Torah, Hilkhot ishut 13:17), that a wife could be compelled to relocate provided it entailed moving to a place that was similar to where she lived.³⁷

The case that Maimonides addressed in that responsum, as well as his ruling in Laws of Marriage 14:2, is anticipated in a responsum of R. Isaac Alfasi. It relates the story of a Jewish storekeeper in Jaén who left his hometown for another city in eastern Spain. There he remained for ten years and took a second wife, leaving his first wife an ‘aguna (lit., “anchored” to her marriage). When the first wife demanded that he be fined “the 200 qāsimī dinars customary in Spain since the early days” for taking a second wife, he offered instead either to move his first wife to his new location or to split his time between wife number one in Jaén and wife number two in his new place of residence.

Alfasi’s ruling displays keen knowledge of how economic realities affected marriage. Since the storekeeper had been a stationary breadwinner in Jaén and therefore unaccustomed to traveling, the Spanish halakhist ruled that he ought not to have gone to another city for business without his wife’s permission, citing the very Mishna in Ketubbot that underlies Maimonides’ above-mentioned halakha. And since the errant husband had taken even further liberty by marrying again (without his wife’s permission), he was obligated to pay the hefty fine.³⁸ Differing from what may be a North African /Andalusian deterrent to husbands taking a second wife without their first wife’s consent, a ketubba clause in vogue in Maimonides’ Egypt when he arrived there permitted a wife on her own initiative to compel her husband to divorce her if she did not approve of his taking a second wife or a concubine.³⁹

In Maimonides’ time, when travel for business to India was common and husbands often needed to be away for years at a time, wives certainly assented to long periods of separation, a concession to the family breadwinner’s need to travel great distances in pursuit of livelihood. They did not normally insist on the letter of the law regarding their husbands’ conjugal obligation, or demand a conditional divorce in advance. Maimonides’ halakhic rationale about traveling for commerce—“he may not travel except with her permission”—echoes this reality.

3.7 Commerce and the Impotent Husband

Rabbinic law allows a woman whose husband is impotent and cannot make her pregnant to demand a divorce after ten years have passed. The basic law in the Talmud (Yevamot 64a) qualifies this, however: if one of them becomes sick or both of them are imprisoned during this period, that time is not counted in the ten years. In other words, the ten years must comprise a period when the couple are actually living together.

Amplifying the halakha, Maimonides makes room for the specific case of the traveling merchant (Hilkhot ishut 15:11): “If within those ten years he had gone away for commerce [halakh bi-sṭora] or was ill, or she was ill, or both were imprisoned, this time is not included in the ten years.”

For the instance of commercial travel, Maimonides had some support from the Palestinian Talmud (Yevamot 6:6, Venice edition 7c; also Tosefta Yevamot 8:6), where, to illness and imprisonment, travel to medinat ha-yam is added. As noted earlier, this term in rabbinic literature seems originally to have meant the coastal district of Palestine. But it was taken by post-Talmudic Jews to mean a land “across the sea,” outside the borders of the Land of Israel, synonymous with the phrase ḥuṣ la-areṣ.⁴⁰ Living in the post-Talmudic Islamic world, Maimonides understands medinat ha-yam to mean travel abroad for the specific purpose 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.