Abstracts

SECURITY

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. 3359.

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 philosophy. (D.B.S.)

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.B.S.)

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". (M.J.P.)

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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