Skip to main content

Full text of "The Dependence of the Talmudic Principle of Asmakhta on Babylonian Law"

See other formats


Early Journal Content on JSTOR, Free to Anyone in the World 

This article is one of nearly 500,000 scholarly works digitized and made freely available to everyone in 
the world by JSTOR. 

Known as the Early Journal Content, this set of works include research articles, news, letters, and other 
writings published in more than 200 of the oldest leading academic journals. The works date from the 
mid-seventeenth to the early twentieth centuries. 

We encourage people to read and share the Early Journal Content openly and to tell others that this 
resource exists. People may post this content online or redistribute in any way for non-commercial 

Read more about Early Journal Content at 
journal-content . 

JSTOR is a digital library of academic journals, books, and primary source objects. JSTOR helps people 
discover, use, and build upon a wide range of content through a powerful research and teaching 
platform, and preserves this content for future generations. JSTOR is part of ITHAKA, a not-for-profit 
organization that also includes Ithaka S+R and Portico. For more information about JSTOR, please 



Deopsik College 

The law which governed and regulated the life of the Jew 
in former days is contained in two distinct literatures : Biblical 
literature, especially the five books of Moses, and Talmudic liter- 
ature. In the latter we must distinguish between an elder 
stratum and a younger one. The chief work containing the 
former is known as the Mishnah, a book compiled about 219 
a. d. ; the chief work containing the latter is known as the Baby- 
lonian Gemara, which is a sort of a running commentary to the 
older stratum of law, especially the Mishnah. The most striking 
difference between these two literatures as law is the following. 
The immediate and sole authority for the law in the Bible is God. 
The Bible reads, as we all know: 'And God spoke to Moses say- 
ing, speak to the children of Israel saying,' etc. On the other 
hand, the Talmudic legal literature resembles our own Anglo- 
American law : the immediate authority for a certain law is the 
opinion of this or that judge or jurist. It reads as follows : If 
one does so and so, he should do this, in the opinion of Babbi A ; 
but Babbi B says he should do that ; and sometimes there follows 
the opinion of Babbis C and D. These were not considered as 
the ultimate authority for the laws. As in the Bible, so in the 
Talmudic literature, God is looked upon as the ultimate and sole 
authority. Yet, for various reasons, the Jews could not regard 
the law contained in both literatures as one and the same. Thus, 
the problem arose, what is the relation of the one to the other ? 
After a long struggle, the Mishnah propounded the following 
theory : Moses on Mount Sinai received two bodies of law : the 
Law and a sort of a running commentary to it. He was com- 
manded to write down the former, while the latter was to be 
taught orally. The Law written down is the one we have in the 
five books of Moses ; the other which was intended to be taught 
orally is the one now embodied in the Talmudic literature. 
Thus there were given to the Jews a written law and an oral 

Talmudic Principle of Asmakhta 127 

law, both intrinsically related to each other, both contempora- 
neous with each other, and both possessing the same divine 
authority. This oral law, commonly known as Rabbinic law or 
as Talmudic law, we shall designate as Jewish Law. The older 
stratum in this we shall refer to as Tannaitic Law, because the 
jurists cited are known as Tannaim; the latter we shall call 
Amoraic Law because the jurists cited are known as Amoraim. 1 

One of the outstanding features of Jewish commercial law is 
the principle known as Asmakhta. Its legality was a bone of 
contention among the Jewish jurists for a long time. And 
finally when it was decided in favor of that principle, the doctors 
could not agree as to its application and exposition. "Writes one 
of the famous Rabbis of the Medieval period: 'The scholars of 
former and later generations have fought concerning the prin- 
ciple of Asmakhta — what is the so-called Asmakhta and what 
does it depend upon ; and I have not seen one that agreed with 
his colleague' (Solomon ibn Adrat, Responsa, vol. 1, Resp. 933). 

The following exposition has the merit of, at least, being put 
forth by the latest Jewish Code. 2 An obligation is valid only 
in the case when there could be no question raised as to its bona 
fide nature on the part of its maker. Now there are three kinds 
of obligations in which the question could be raised. They are 
called Asmakhta obligations. 

First, there is the kind of obligation the execution of which 
depends from the very first upon the good-will of persons other 
than the maker. For instance : 

'In the course of studies that I have made in Jewish commercial law, I 
have come to the conclusion that three elements entered into its creation: 
the economic life of the valley of the Euphrates and the business customs of 
the people of that country — the Babylonian element; Biblical laws and the 
Prophetic spirit of the Bible — the Palestinian element; and the formulation 
of the new law as if it were an outgrowth of Biblical law — the element of 
Judaization. "We meet with eases, for instance the institution of inheritance, 
which show no trace of Babylonian influence. But, as a whole, Jewish 
commercial law is the product of a harmonious and thorough-going blending 
of those three elements, though the proportions of the elements vary in the 
different groups of laws. The results of the present paper fall in line with 
this conception of the nature and rise of the law embodied in the Talmudic 
literature, though they do not necessarily presuppose it. 

2 Cf. Moses Isserel's Sosh. Mish. 207. 13. "We do not mean to subscribe 
to this presentation. It is hardly possible to arrange all the cases of 
Asmakhta under three headings (cf. Baba Mes. 67a). 

128 H. S. Linfield 

A commission merchant received money from Ma dominus to buy wine, 
the delivery of which was to be made at a later date when wine would 
be higher in price. The time for delivery arrived but the commission man 
did not deliver the wine. Instead, he brought back the money received 
from his dominus. The latter refused to accept the money; he demanded 
his wine or a sum of money sufficient to buy the same quantity at the 
present market price. Jewish law instructs the courts to render a judg- 
ment in favor of the commission man. (Bab. Baba Mes. 73b.) 

The Jewish jurists give the following legal explanation: — At 
the time of the promise, the commission merchant could not be 
absolutely certain that he would be in a position to fulfil it, since 
the execution depended upon the consent of others : other people 
had to agree to sell him that sort of wine. The obligation was 
thus dependent upon conditions over which the promisor had no 
absolute control. Such an obligation is an Asmakhta and hence 
void (ibid). 

Secondly, there is the kind of an obligation the execution of 
which is indeed in the hands of the maker, but which contains 
an element of exaggeration. For instance: 

A man leases a field to till, and makes the following stipulation: 
'Should I not till it, I hereby agree to pay you the exorbitant sum of 
$1,000.' He did not till the field, and he was willing to pay the owner of 
the field the actual loss that he made him incur, but he refused to pay the 
$1,000. Jewish law instructs the judges to return a verdict in favor of 
the lessee. (Bab. Baba Mes. 104b, Misnah ibid. 9. 3, and Caro Code 207. 

For, the obligation from the very beginning was not bona fide. 

Thirdly, there is the kind of obligation, the execution of which 
is neither in the power of the maker nor in the power of others ; 
it is a case of chance. For instance : 

A says to B, 'I make a bet that so and so will turn out. If I losei, I 
shall pay you a certain sum of money. ' 

In the case before us, it would seem that the bona fide nature of 
the obligation could certainly be attacked. Contrary to all our 
expectations, Jewish Law maintains that such an obligation is 
valid. This is not an Asmakhta-obligation (cf. Bab. Sarihed. 
24b and Tur Hosh. Mish. 207. 7, Caro Code 207. 13). 

Jewish Law claims no Biblical basis for it. Was there any 
certain tradition for this far-reaching legal principle? Let me 
cite further: 

Talmudic Principle of Asmakhta 129 

If one paid off a portion of his debt, the creditor deposited his bill and 
the debtor said to the depository, 'If I shall not have given you the rest 
of my debt between now and a certain day, return the bill to the creditor.' 
The day set arrived, and the debtor had not paid. R. Jose says the 
depository should give the bill of debt to the creditor, but R. Judah says 
he should not give it to him. (Mishnah, Bab. Bat. 10. 5.) 

The Mishnah offers no hint as to the basis underlying the differ- 
ence of opinion between these two authorities. If they knew of 
the principle, we must say that R. Jose does not recognize it, 
while his colleague does. This is really the opinion of the 
Amoraim (Bab. Baba. Bat. 168a). But we must notice the fol- 
lowing : 

He who pledged a house or a field and said to the pledgee, 'If I shall 
not have given payment to you between now and a certain day, I have 
nothing in your hands. ' The set date arrived and the maker did not carry 
out his obligation. His stipulation must be carried out — these are the 
words of R. Jose. Said R. Judah, 'How can the pledgee acquire title to 
something that is not his?' 'Surely he must return the pledge.' (Tose- 
phta Baba Mes. 1. 17.) 

This is also a clear case of Asmakhta as expounded by the Amo- 
raim. But did those Tannaim know of this principle? B. 
Judah says that in our case there is nothing that could transfer 
the object from the possession of one to that of another. What 
does this mean? Does the jurist deny in such a case the very 
existence of a state of contingent ownership, as does the principle 
of Asmakhta? Or does he merely say that the mere fact of the 
pledgor's failure to pay the debt does not convert the state of 
contingent ownership in which the pledge finds itself, into a 
state of ownership vested in the pledgee? Tannaitic Law goes 
on to say that all authorities 3 agree that the following obligation 
is valid: 

Two people laid claim to a house or a field and one said to the other, 
'If I do not come with my substantiating evidence before a certain day, 
I agree to waive my claim.' The day set arrived but he did not present 
his evidence, surely he lost his claim. (Tosephta Bab. Mes. 1. 17b). 

So if we say that Tannaitic Law knew of the principle of 
Asmakhta we must conclude that all agreed that such a case is 

"Read, in the Tosephta 'R. Judah' instead of 'R. Jose.' Evidently a 
copyist misread 'RJ.' 

9 JAOS 40 

130 H. 8. Linfield 

not one of Asmakhta. Now, Amoraic law deals with exactly 
such a case, and there the Amoraim regarded it as a clear case of 
Asmakhta. "We are not interested here in the exposition of these 
Tannaitic laws. 4 Do the Tannaitic sources know of the princi- 
ple of Asmakhta or not? This is the question that concerns us 
here. Later Amoraic teachers assure us that they did. But that 
is not the point; do we have internal evidence that Tannaitic 
law knows of the principle of Asmakhta? It is certain that 
the Tannaim do not speak of this principle as such. More than 
that, even the early Amoraim like Babh, Samuel, E. Johanan, 
etc., do not mention the principle of Asmakhta, although we 
find sometimes that the late Amoraim speak of the principle 
'in the name of certain early Amoraim. 5 And even the later 
Amoraim could not agree as to the legality of the principle. 
One famous judge (E. Nahman) lived long enough to change 
his mind on that subject. Finally, we may notice that even the 
late compilers of the Talmud did not agree as to the extent of 
the legality of the principle. We have at least three 'decisions' 
rendered by them concerning it: 

The law is in accordance with B. Jose's statement that an Asmakhta 
obligation is valid (Bab. Baba Bat. 168a). The law is that an Asmakhta 
obligation is valid provided the failure to carry out the obligation was not 
due to unavoidable causes and provided further that the obligation was 
sanctioned by the 'qinian sudar' and in the presence of a recognized court 
(Bab. Ned. 27b). The law is not in accordance with B. Jose's statement; 
but under all circumstances an Asmakhta obligation is void (Bab. Baba Bat. 

It is perfectly clear that there did not exist a tradition con- 
cerning this principle. And, thus, we come to the conclusion 
that the principle had its origin neither in the Bible nor in 
tradition. This will become even clearer when we cite two or 
three judicial decisions which involved or should have involved 
the principle of Asmakhta. 

* The Jerusalmi states that all agree that when a man hires his son out 
to learn a trade, all Asmakhta obligations are valid; otherwise, continues 
the Jerusalmi naively, people will be unable to make a living (Jer. Git. 
5: 8). Cf.' also Maim., MekMrah, 11. 4, and commentaries. 

•B. Huna (in Bab. Ned. 27a-b) does not mention the principle. Jer. 
mentions B. Abahu (Bab. Bat. 10. 5) and the Bab. mentions later teachers 
who spoke of the principle 'in the name of Bab and B. Johanan, (Baba 
Bat. 168a, Ned. 27b). 

Talmudic Principle of Asmakhta 131 

One deposited his papers with the court and said, 'If I do not come 
with additional evidence within 30 days, I agree that the papers deposited 
should be considered void.' He met with an aeeident and did not come. 
Said B. Euna, the papers deposited are void. . . . But, continues the 
Talmud, is not this a case of an Asmakhta? — and an Asmakhta obligation 
is not binding. Here it is different; the papers were deposited, and 
whenever the object of litigation is deposited, there can be no question of 
Asmakhta. Did we not learn as follows: 'He who paid a portion of his 
debt and the creditor deposited the bill of debt,' etc. And B. Nahman 
said the law is not in accordance with B. Jose's statement in which he 
does not recognize the principle of Asmakhta. Here it is different, since 
he said he agreed that his papers should be considered void. But, the 
Talmud continues, the law is that an Asmakhta obligation is valid pro- 
vided. . . (Bab. Ned. 27a-b.) 

B. Kahana claimed money from Bab Bar Sheba. Said the latter, 'If 
I do not pay you within a certain time, eollect from this wine before 
thee.' B. Papa was of the opinion that an Asmakhta obligation is void 
only in the case of land, since, as a rule, it is not sold; but in the case 
of wine, since there is always a market for it, it is like ready cash. Said 
B. Huna, the son of B. Josua, to B. Papa, 'Thus it was said in the name 
of Babha, "any obligation involving an 'if' is not valid." ' (Bab. Bob. 
Mes. 66b.)« 

This is the earliest statement with reference to the applicability 
of the principle of Asmakhta. The famous late jurist Babha is 
said to be its author. 

In view of the fact that this legal principle is not based on 
the Bible or tradition, and in view of the fact that, as far as 
internal evidence is concerned, it is a product of Jewish jurists 
who lived in Babylonia, a product of Babylonian Jewry, it is 
natural that we should inquire what was the Babylonian law 
and business custom with regard to it. 

There can be no doubt that the Babylonians knew nothing of 
an invalidating principle of Asmakhta. 7 But first of all, we 

"For further instructive examples, cf. Bab. Baba Mes. 104b, 109b, and 

7 Thus from the Old Babylonian law: 'He who breaks the agreement, 
in as much as he has sworn, should pay a certain sum and in addition he 
will have his head covered with hot asphalt' (cf. Hamm. Gesets, 3, p. 223). 
And from the Assyrian period: 'He who breaks the agreement should 
place in the lap of Ninlil 10 minas of silver and 10 minas of gold' [an 
enormous sum] (John, Deeds and Doe., 161). Prom the Neo-Babylonian 
period: 'One rents a house at a rental of five shekels per annum. Both 
parties agree that he who breaks the agreement should pay the other party 
10 shekels' (Camb. 97, see also Dar. 25, and 378, Nbk. 103, Dar. 434, and 
Artax. in BE. vol. 9 by Clay). 

132 H. 8. Linfield 

must notice that the Babylonians had their own conception of 
obligations involving a fine in case of default. 'It seems,' writes 
Prof. Joseph Kohler, 'that a debtor had the right to pay the fine 
in place of the fulfilment of the obligation; the agreement to 
pay a fine was conceived as an alternative obligation' (Aus 
Babyl. Rechtsl. 1, § 6). Now this is just the Jewish view. The 
principle of Asmakhta, in part, simply says this : An agreement 
to pay a fine in case of default is void, unless it is conceived, as 
it was by the Babylonians, as an alternative obligation. 

Then again we must bear in mind that an agreement involving 
a forfeiture clause was sometimes drawn up as follows : 

If on the 29th of Nissan, Marduk-nasir-aplu shall not give 3 minas to 
Bel-ibni, Bel-lu-sulmu and Lu-balat then belong to Bel-ibni the three minas 
as the complete purchase price (Dar. 319. 2, cf. also 309 and Kohler 's note, 
op. tit. 3, p. 33). 

This simply means that at the time the loan is made the creditor 
says to the debtor, 'You will either pay your debt at the date 
stated, or this money that I am now giving you is purchase 
price for the object which you are now handing over to me as a 
pledge. ' This is just what Jewish law requires. The principle of 
Asmakhta says that a debtor can forfeit his pledge only if the 
agreement is made out in a way similar to the above mentioned 
Babylonian contract (VBO^D *Jp). 

We are now in a position to approach the problem before us. 8 
In as much as the Jewish business men followed the common 
law of the land in which they lived, they had no principle of 
Asmakhta. But in the case of an obligation involving a fine in. 
default, they had a peculiar notion; and in the case of a trans- 
action with a forfeiture clause, the contracts were at times 
drawn up according to a certain fixed form. The causes under- 
lying that form do not concern us here. 9 What does concern 
us is that there existed such facts. Some Jewish jurists then 
insisted upon that form, claiming that otherwise the obliga- 
tion would not be binding; while others did not insist upon 

8 No attempt is made here to give a detailed history of the principle 
of Asmakhta. We are here interested in showing its dependence on Baby- 
lonian business and legal customs. 

* Cf . Kohler 's observation quoted above. 

Talmudic Principle of Asmakhta 133 

it. Such a situation was however intolerable to the Jewish 
jurists; they wanted every practice to be fixed and provided 
with a legal basis. The early jurists knew nothing of a principle 
of Asmakhta. Seemingly, they did not progress far in their 
expositions of the existent cases (cf. Tosephta quoted above, 
T^il Hip'' nj33). As time went on, the jurists were more and 
more inclined to favor the existent practices of the land men- 
tioned above. Those, on their surface, involved the question of 
the state of mind of the maker of the obligation. This then 
formed the starting point for discussion in the schools. In the 
course of time, there was evolved a full-fledged theory which 
covered the existing cases and similar ones. The doctors in the 
Babylonian Law Schools then coined for it the technical term 
of Asmakhta, a word unknown not only to Tannaitic Law but 
also foreign to the Palestinian Amoraim. That was all accom- 
plished mainly within the four walls of the law academies. The 
judges and jurists refused to subscribe to it. It was not until 
the time of the famous judge E. Nahman that the judges began 
to pay attention to it. That judge himself, at first refused to 
recognize it, but later reversed his position. A younger con- 
temporary succeeded in bringing forth a clear statement of the 
principle, »Jp K*7 y Xl *?D. And it was a generation later that 
one authority felt justified in claiming that it was a matter of 
daily practice that Asmakhta-obligations are void (Bab. Baba 
Bat. 173b). 10 

Thus the Jewish legal principle of Asmakhta means on the one 
hand the legalization of a few Babylonian practices, and on the 
other hand the extension of its own legal theory to cover all 
other similar cases. 

10 The statement cannot however be taken too literally, for we find that 
the latest editors of the Talmud were not agreed as to its application, as 
stated above.