Y. Kaplan, "Elements of Tort in the Jewish Law of Surety"
(Heb.), Shenaton Ha-Mishpat Ha-Ivri 9-10 (1982-3), 359-396.
Shalom Lerner, Elements of the law of pledges in Jewish Law
(Heb.), l980, Pp. 366 (Hebrew University thesis); see KS 57/3-4 no.
G. Libson, "Fragments from the Sefer Ha'arvut Vehakablanut
of R. Samuel b. Hofni Gaon" (Heb.), Tarbiz 58 (1989), 377-412.
- The article presents some new fragments from R. Samuel b. Hofni's Sefer
Ha'arvut Vehakablanut (Book of Surety). The subjects dealt with
in these fragments are the agreement of the creditor to the proposal of
surety; whether a surety may be given without the consent of the debtor;
whether the surety releases the debtor from responsibility for the debt
and the proper witnessing of the surety. The selections are preceded by
a short introduction which focuses on the relationship between R. Samuel's
treatment of the topic and the Moslem jurisprudence of the period. The author
claims that R. Samuel's work was influenced by Moslem models both in relation
to the substantive law and the literary structure of his work. (D.B.S.)
G. Libson, "Two Sureties: A Comparative Study of Rav Shmuel ben
Hofni Gaon, Maimonides and Analogous Moslem Legal Literature" (Heb.),
Shenaton Hamishpat Ha'ivri 11-12 (1984-1986), 337-392. - The
focus of the article is the situation in which two sureties guarantee a
debt. This situation is not dealt with, except in the most marginal ways,
in Talmudic literature. It is, however, treated at length in the monograph
of R. Shmuel ben Hofni on suretyship in Jewish law, and the article deals
with three aspects of joint suretyship, i.e. cases in which it is legal;
a claim against one of the guarantors only, and relieving one guarantor
of his obligation whilst the second still remains bound by the suretyship.
The author argues that R. Shmuel ben Hofni's treatment of this topic reveals
the influence of Islamic law, especially that of the Hanafi school of Islamic
jurisprudence which was centred in Iraq, close to R. Shmuel ben Hofni's
place of residence. He also compares R. Shmuel ben Hofni's approach with
that of Maimonides, and notes both similarities and differences. It is suggested
that Maimonides was also influenced by Islamic law, but this time, by the
Shaafi school, which was closer to the legal circles familiar to Maimonides.
The influence of Islamic jurisprudence and terminology on R. Shmuel ben
Hofni is also demonstrated, and the claim made that R. Hofni's extensive
use of independent reasoning is based upon the Islamic category of ra'y,
which is one of the four jurisprudential pillars of classical Moslem legal
B. Lifshitz, "On Surety and the Terminology of Undertaking"
(Heb.), Shenaton Hamishpat Ha'ivri 13 (1987), 185-213. - The
significance of the root "arev" is "exchange",
and the original concept of suretyship was based upon the notion that the
guarantor gives up his body in exchange for the debt, should the debtor
not honour his obligation. This linguistic tradition may be detected in
the responsa of the Gaonim. Other terms based upon the notion
of exchange are hamraya and ahrayut. There is yet another
group of terms used with reference to suretyship which are based upon the
idea of cutting (as in a covenant) e.g. psikah, kezizah
and the expression hotseh, which is derived from hetsiah,
i.e. half. The third group of terms dealt with in the article consists of
expressions relating to speech such as amar, dvarim and torah.
D. Piattelli, "Le Garanzie delle Obbligazioni nelle fonti ebraiche
- Osservazioni in margine al problema dell'origine della Ketuba", Mélanges
à la mémoire de Marcel-Henri Prévost (Paris: Presses
Universitaires de France, 1982), 105-122. - The author studies the clause
of the Ketubah, attributed to Shimon ben Shetah, which placed a charge on
the goods of the husband in order to guarantee payment of the mohar,
in the light of the development of marriage contracts and documents of indebtedness.
The theme is developed further in her Concezioni giuridiche e metodi
costruttivi dei giuristi orientali, (Milan: GiuffrË, 1981),: see
"Theory of Law", below. (B.S.J.)
Chaim Povarsky, "The Lien on Property according to Jewish Law"
(Heb), Diné Israel 12 (1984-85), 155-172. - Lien in Jewish
Law differs from other systems wherein it is an inherent result of a debt,
requiring no formal act. P examines the source of Lien, the normative distinctions
between real or movable property, and examines possible explanations for
its efficacy. Seen as an inherent result of a debt, its source may be found
in the notion of a person's property (as opposed to movables) naturally
guaranteeing the loan, due to their being in effect an extension of the
person and the public knowledge of a person's real assets. An alternative
explanation sees it as a separate acquisition, co-existing with the loan
but not organically bound to it. Both concepts emphasize the element of
personal liability attached to the Lien, thus the phenomena of limited liability
for legally created bodies is problematic in Jewish Law. Modern Responsa
offers tentative solutions, seeing "limited company" either as
an extension of powers granted to public bodies, not limited by laws governing
individuals or as the result of specific commitment by shareholders to limit
their personal liability to specifically defined objects, thus creating
a separate object of liability which in effect constitutes the "company".
J. Shapiro, "The Shetar's Effect on English Law: A Law of the
Jews Becomes the Law of the Land", Georgetown Law Journal 71
(1983), 1179-1200. - Shapiro explains in detail the development, in England,
of contractual security interests in realty as derived from Jewish practice.
The development covers the period 1066-1285 A.D. So long as Jews were the
sole source of capital on interest, and profits derived from their transactions
were susceptible to taxation to enrich the royal treasury, the English kings
found it profitable to enforce their liens despite feudal traditions to
the contrary. When Christians were later enabled to charge interest, the
need for Jews as lenders diminished, but the law had become established.
The forms of relief for non-payment of lien-accompanied debt formerly available
only to Jews were now extended to Christian creditors. (D.H.P.)
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