Babylonian Talmud

Rodkinson 1918 — source 10, scan section 2

ing not touching fire on the Sabbath. Among those which are specified in this constitution, the rabbins allow the minister to look over young children by lamp-light but he shall not read himself. The minister is forbidden to read by lamp-light, lest he should trim his lamp ; but he may direct the chil- dren where they should read, because that is quickly done, and there would be no danger of trimming his lamp in their presence, or suffering any of them to do it in his. All these regulations, which some may conceive as minute and frivolous, show a great intimacy with the human heart, and a spirit of profound observation which had been capable of achieving great pur- poses. The owner of an innocent beast only pays half the costs for the mischief incurred. Man is always convict and for all mischief he does he must pay full costs. However, there are casual damages — as when a man pours water accidentally on another man ; or makes a thorn-hedge which annoys his neighbour ; or falling down, and another by stumbling on him incur harm : how such compensations are to be made. He that has a vessel of another's in his keeping, and removes it, but in the removal breaks it, must swear to his own integrity ; i.e., that he had no design to break it. All of- fensive or noisy trades were to be carried on at a certain distance from a town. Where there is an estate, the sons inherit, and the daughters are maintained, but if there is not enough for all, the daughters are maintained and the sons must get their living as they can, or even beg. The contrary to this excellent ordination has been observed in Europe. The second, of which a literal translation follows, was written in Hebrew by Dr. D. H. Farbstein, a counsellor-at-law in Zurich, THE THREE GATES (JURISPRUDENCE), vii Switzerland, in the '' Hashana " (Year-book) for 1900, under the title '* One Cannot Grant that Which is not in Existence." There is no law which has not its reason. Every legal principle is the result of a certain economic and political condition ; it is the product of a certain epoch, aiming to benefit the political and economic life of that his- toric epoch. The legal principle that one cannot grant that which is not yet in exist- ence had its origin in the Hebrew nation and was the product of a certain epoch, and we shall endeavor here to explain the motives which prompted the development of this legal precept. This principle existed also in the laws of other Semitic nations in general, and in the Mahometan laws in particular. It was, however, unknown to the Roman law, as according to the Roman law one could grant that which was not yet in existence, and the sale of an article which existed only in expectation was valid, and even the mere expectation could form the subject- matter of a purchase or sale. The reason of this difference between the Semitic laws in general, and the Jewish laws in particular, and the Roman laws on this point lies, in my judgment, in the prohibition of taking usury. "Thy money shalt thou not give him upon usury, nor lend him thy vic- tuals for increase " [Lev. xxv. 37] is one of the principal Mosaic laws. And as it is prohibited to give money upon usury, so also is it prohibited to raise the price ; as, for instance, if the price of an article is such and such in cash, it is prohibited to raise the price of such article if sold on credit for a certain time, for it is nothing but indirect usury. This law was necessary as long as it was prohibited to give money upon usury ; in our own times, however, when industry and commerce have developed so much, it is very usual to buy and sell things which exist only in expectation. In the time of the Talmudists the one who sold that which was not in existence was not an ordinary merchant, but only one who needed money. For instance, a farmer needed money. He applied to the money-lender for a loan. The money-lender was willing to make the loan, but was kept back by the prohibition to give money on usury. In order to evade this prohibition he bought of the farmer the future products of his farm, paying him only a very low price. The difference between the actual value of the products and the price paid by the lender is nothing but indirect usury. Similar methods are practised even now in those countries where usury is prohibited by the law of the land. The Talmudists, in order to prevent such and similar evasions of the prohibition to take usury, have established the principle that no one can grant that which is not yet in existence ; for the same reason, they also prohibited the fixing of a price upon future products before the market price is established. They were, at the same time, careful in stating that one cannot grant, and not that one cannot buy, affording thereby protection to the grantor only that he may rescind the sale if he elects to do so. We see, then, that the rule that " one cannot grant," etc., was established with the end in view of preventing any evasion of the prohibition to take usury. viii INTRODUCTION : JURISPRUDENCE. In those days commerce was not so developed as it is in our days, nor was money of such established currency as it is now. Nowadays one invests money in merchandise and then sells the merchandise and realizes his money with a profit, which was not so in those days ; and for that reason the taking of usury was prohibited, for money could bring no economic benefit to its owner. But although it was prohibited to grant that which was not yet in exis* tence, still it was allowed to grant that which would bring benefit in the future — as, for instance, to lease land for cultivation — for the substance pro- ducing the benefit is in existence. This distinction between interest (compensation for the use of money) and rent (compensation for the use of an article producing benefit) was drawn also by the Catholic theologians of the middle ages, who also prohib- ited the taking of usury, but permitted the receipt of rent. We, however, cannot fully agree with Dr. Farbstein, for the following reasons : (a) The principal things concerning which this rule was made were marriage and inheritance. If one marries a woman upon the condition that she should become a proselyte, the marriage is null and void, because it is on condition of something which was not yet in existence. The same is the case as regards inheritance — one cannot say to a woman : '* I will leave my estate to the children you may bear." In both these cases, usury cannot be the reason. {b) The rule that a man cannot grant that which is not yet in existence is not an established one by all the sages, for there were many of the most popular — as R. Eliezer b. Jacob, R. Meir, and R. Juhudah the Prince — who held that one might grant that