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Commercial Law

The 1901 Jewish Encyclopedia

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According to Jewish law persons legally capable of entering into any form of contract are legally capable of making commercial contracts also; but it must not be forgotten that girls reach majority at twelve and boys at thirteen. Three kinds of incapables are barred out: the deaf-mute, the unsound in mind, and the minor. Bondmen are excluded because their possessions as well as their earnings belong to their masters. Married women have not full legal capacity, for they lack the control of their property, and their earnings belong to their husbands. But the authorities recognize the wife that "trades [buys and sells] within the house" with the permission of her husband (Shulḥan 'Aruk, Ḥoshen Mishpaṭ 62, 1); in fact, a woman may marry with the agreement that the husband shall have no interest in her property or its income (Ket. 9:1). Yet the great majority of those women who have carried on trade and industry in Israel, often on a large scale and with marked success, have done so simply in the names and as the agents of their husbands.

Partnership.

There is an Assyrian word used in the Talmud for "partners" (), but in the Mishnah it is applied mainly to joint owners of land. In the Codes it is used both in this sense and in that of "partners" (Maimonides, "Yad," Sheluḥin, passim). It will be seen under see see PARTNERSHIP that its formation is clogged by many doubts and formalities. Of joint-stock companies or trading corporations the Talmud and the Codes show little trace; there were, indeed, societies in Palestine holding their property in common and working for the common profit—the Essenes, for instance—but neither the inclinations nor the purposes of these societies were in any way commercial, and seldom, if ever, did they go to law. Old trading companies may, perhaps, be recognized in the mutual insurance companies mentioned below, or in the caravan () repeatedly spoken of in the Talmud; but nothing is known from that source as to their workings as legal entities.

Maritime Law.

The commonwealth of Israel in its palmiest days troubled itself but very little about ships, and controlled hardly any of the ports on its coast-line. Its maritime trade fell to Phenicians and Philistines. There were, however, in Mishnaic times, Jews who owned trading-vessels; and in the article ALIENATION AND ACQUISITION the mode of making delivery of a vessel () so as to give title to the buyer is discussed.

There is also, in a rather crude form, a law of jettison, or general average. Says a Baraita (B. Ḳ. 116b): "A ship is going along the sea; a squall arises and threatens to sink her, and they lighten her of her burden; then they take account, according to the weight, and not according to the money value; for they should not change from the usages of ship-owners." The reason of this rule is evidently that the owners of goods of small weight in proportion to value have done very little toward overloading the ship. No mention is made of other sacrifices for the common good than actual jettison; and the rule of apportioning the loss by weight rather unjustly relieves the ship-owner from contribution. But other laws on shipping, now generally in force, are not found. Rich Jews in the Middle Ages often owned ships and cargoes; but they of necessity settled disputes about these in the admiralty courts of the sea powers, not before their rabbis; and so no rulings on such disputes in the responsa literature, or in the Jewish Codes, are to be found.

There is but little mention of bills and notes in Jewish law, though it has been shown under Alienation that Abraham ben David was the first to suggest a form of bond with some elements of true negotiability; his idea, however, was not developed by later authorities. In questions of contracts with carriers and contracts of affreightment—that is, for carriage by water—the Talmud knows no special liability of the carrier; he is, like the shepherd, simply a hired keeper (BAILMENTS). On that sort of affreightment known as a "charter party," where a single freighter hires the ship for the voyage, the Talmud (B. M. 79a, b) gives some points which Maimonides repeats in "Yad," Sekirut, 6:4, but with a lack of clearness which indicates that the subject treated did not come up in actual practise.

Marine Insurance.

A Baraita, probably of the second century (B. Ḳ. 116b), contains the principles of marine insurance: "And ship-owners have the right to contract that whosesoever vessel is lost, they will get him another; but if it be lost through his fault [ (variant ; see Rabbinowicz, "Diḳduḳe Soferim" ad loc.)] they do not replace it; if not through his fault, they replace it; and if he has lost his vessel while deviating from proper course, they do not replace it." This is the earliest known passage on insurance. The Justinian Code is silent; and when the Roman republic or empire, as Livy and Suetonius say, agreed to indemnify shippers against loss in case of war or famine, it was not insurance, for there was neither premium nor mutuality.

Another Baraita (B. Ḳ. 116b) approves mutual insurance among ass-drivers (), with this addition: "If he says, 'Give me [the money] and I will watch,' they do not listen to him"; for, as the Gemara explains, one of the considerations of the insurance is that every driver shall stay with the caravan and help to defend it. Note the phrases: "ship-owners have the right," "ass-drivers have the right," to insure. Generally, contracts depending on uncertain future conditions were not favored in Jewish law. Of life or fire insurance the Talmud knows nothing; nor is it cognizant of bottomry and respondentia bonds.

In the Jewish law contracts for hiring service are treated more from the moral than from the commercial standpoint. The subject of apprentices is also unknown to Jewish law, doubtless for the reason that boys are of age at thirteen and may dispose of their own services.

Of commercial remedies only the lien of the party in possession for work done and for advances is recognized in the Talmud, and this incidentally in the discussions on the liability for faulty work of mechanics entrusted with goods (B. Ḳ. 98-102); but there is none of the complication of the subject which has been introduced into modern law.

For the discussion of óther points of commercial law ACCEPTANCE; AGENCY, LAW OF; ALIENATION AND ACQUISITION; BAILMENTS; BROKER; CONTRACT; DEBTOR AND CREDITOR; OVERREACHING; PARTNERSHIP