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Howell NY: , On the need for a formal act to establish an obligation in ancient law, see Brissaud, ibid.
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Philbrick NY: , ff. The Commentary attributed to the Ritva is a 13th century Provencal work of unknown authorship; see R. NY: , introduction, ch. As I learned from Dr. David M. Schaps, the same phenomenon occurs in Spanish: the Latin ending -ta always becomes -da in Spanish. Haim to the effect that the merchant practice was to close a transaction with a handshake — a practice with which he too was no doubt familiar — added that it was known in German as ufshlac. His contemporary, R.
Alexander Suslin Hakohen of Frankfurt thirteenth to fourteenth century , also refers to this practice. Alexander Suslin Hakohen, both of whom lived in Germany at the end of the thirteenth century and the beginning of the fourteenth, we can affirm that 53 The word was commonly used in France in the late 12th century the lifetime of R.
Haim of Paris ; see Grand Larousse, n. See Schirmer, ibid. Haim himself intended to offer a different lexicographic explanation of the word situmta, or whether his intention might have been merely to illustrate the meaning of the term by bringing an example. That is, perhaps R. If so, it is for the latter purpose that he would have referred to the prevailing customs of merchants of his own period and region.
Haim as indeed intending to offer another interpretation of the term situmta. Recall that the Rosh quoted R.
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Only after quoting both authorities did he rule on 59 This constitutes further corroboration of my thesis for which I have argued elsewhere; see n. See H. I plan to address the topic of the handshake in medieval Jewish and German law in another paper. Samuel of Dampierre that the law in question applied to other modes of acquisition that were commonly used by merchants to make purchases. As we saw, this interpretation of the sugya was given by other Early Authorities as well.
Each of these authorities gives the term for acquisition by handshake in his own local language. Their commentaries thus not only offer an interpretation of the talmudic sugya, but also reflect the regional realia of medieval Europe. We can, therefore, draw a definite historical conclusion from these commentaries: the practice of effecting acquisition by means of a handshake was common among merchants in twelfth-century France R. Haim , thirteenth-century Provence pseudo-Ritva , and at the end of the thirteenth and beginning of the fourteenth century in Germany Rosh and R.
Alexander Suslin Hakohen. As stated previously, these testimonies by early halakhic authorities are consistent with what is known to us about merchant customs from other historical sources for the said period. That is, he has not carried out the halakhically-mandated physical act that renders the acquisition of the goods valid. In light of this difficulty, the Ritva upholds an interpretation offered by his teacher, R.
Aaron Halevi Rea ,66 in the name of the his older brother R. Pinehas Halevi of 65 That his intention was to give a second definition of the word is also, for the same reason, implied in the passage from the Commentary attributed to the Ritva, quoted at n. The Ritva writes as follows: Situmta is a kind of coin that has no design on it, and the merchants give it as a token when they buy something. And we say [at the end of the sugya] that in a place where it is customary [to purchase in this way], it effects title, for [the coin] was surely given with the intention of [carrying out] a barter [transaction].
The controversy among the Amoraim, which deals with the case of a locale where there is no established custom with regard to this practice, concerns assessment of the intent of the merchants: is the coin given as actual payment, so that title is not fully effected, but at most the parties become subject to the curse of mi shepara the view of the Rabbis ; or is it given as a token of acquisition through barter, in which case it effects full title the view of R.
The conclusion of the sugya is that wherever it is the customary practice to make purchases in this manner, all agree that it is a valid mode of acquisition.
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On this interpretation, the custom does not confer validity on the said manner of making a purchase as a 67 R. Pinehas taught his younger brother Torah.
However, this identification has been challenged; see Jacob S. Shilo Raphael Jerusalem: , —28, 74a s. KLEINMAN mode of acquisition in its own right, but rather, merely constitutes a declaration that the coin is given for the purpose of barter, that is, to effect full title. In sum, R. Pinehas interprets the sugya as concerned with the purchase of goods by handing over a coin. It seems, therefore, though he does not say this explicitly, that R.
In other words, he explained the Babylonian term situmta — and the entire talmudic sugya — in light of the realia of mid-to-late thirteenth-century Barcelona. Jena: , n. Cambridge: , —82; W. Gordon and O. Robinson, The Institutes of Galius London: , , note to para. Terumat Hadeshen, n. Contracts based on actions such that one of the parties received no consideration were not legally valid. Where there was no material consideration, there had to be some countervailing action, even a lesser one.
Eric Zimmer for this reference. See also Y. The reason for this designation was that earnest money was sometimes dedicated to some religious need, so that the transaction would be granted divine protection. And sometimes the money was used to buy wine, which the parties drank together to mark their agreement; see Brissaud, loc. Ezekiel Landau, Responsa Noda Biyhuda, 2nd ed. KLEINMAN A similar practice, whereby acquisition was effected and contract obligations made binding by payment of arras coins, that is, earnest money, was recognized in medieval Spain.
It is, in fact, still in use in Spanish contracts. Sheshet Perfet Rivash , a fourteenth-century Spanish authority. He quotes a verdict handed down by a Gentile arbitrator, who instructed a husband to renew his ketuba obligation to his wife, specifying a certain sum of money. See A. Later, under the Visigoths and in the Middle Ages in general, the arras was again defined as a donation: donatio propter nuptias.
Documents from Toledo, dated , state that one cannot give his wife arras of more than solidi. Today the custom is still practiced at many Catholic weddings the exception being certain districts of Catalonia. The coins are kept by the groomsmen, that is, young family members who attend the couple during the ceremony, and the bridegroom then gives them to the bride. See J. I am indebted to Prof. Moises Orfali for his help in locating the Spanish sources and translating the quotes from the responsum into Hebrew. Isaac of Dampierre, as quoted by the Rosh,85 R.
Samson of Sens France, twelfth to thirteenth century , in a responsum,86 and R. Abraham Aderet Rashba , Spain, — ,87 in a responsum sent to Marseille. Israel Isserlein, author of Terumat Hadeshen — ,89 and his disciple, R. Moses Halevi Segal Maharam Mintz , c. Johanan ruled: It effects title to the whole purchase. See M. Catane, Recueil des gloses Hebrew , Jerusalem: , The responsum concerns the custom of giving a coin upon concluding a matchmaking agreement, as an act of acquisition relating to the standard fines specified in the matchmaking conditions.
Avitan Jerusalem: , 59, p. Terumat Hadeshen, quoted below. Isserlein and the Maharam Mintz that giving the coin served two functions: it was an act of acquisition, finalizing the transaction between purchaser and vendor; and an advance payment toward payment of the full sum involved. The passage in Terumat Hadeshen is as follows: A Jew who purchased a cow and a goat from a Gentile and did not pull [actualize the purchase by meshikha] but only gave one penny pashut toward the sale.
It does not matter here whether he purchased a large quantity of merchandise with a penny or purchased [something worth] a large sum and gave a small part of the payment, such as a penny, as confirmation of the transaction, the balance being paid later. It will be recalled that R. Pinehas of Barcelona was very likely familiar with the merchant practice of buying goods by giving a coin as earnest money.
The coin used by European merchants to finalize a transaction was an ordinary, current coin, not a blank or planchet. I would argue that R. This calls for explanation. As understood, at least, by the Early Authorities, the sugya of situmta is concerned with the methods for acquiring movable property. However, the Geonim and other Early Authorities understood that he was referring specifically to movable rather than landed property. This is discussed at length in Kleinman , n.
Pinehas therefore emphasized that the situmta was not an ordinary, current coin, but a coin blank, with no inscription or design. His interpretation is the product of two extra-textual factors: the realia of his own time, namely, merchant custom in thirteenth-century Spain, and talmudic law.
It must be kept in mind that we did not receive R. Pinehas, too, to reject it and seek another interpretation. If so, this proves that R. In other words, R. Pinehas may have intended from the start to explain not the meaning of the notion of situmta, but rather the halakhic substance of the sugya, that is, the way in which R. The interpretation he put forward reflects, 93 bBaba Metzia 47b.