One of the most precious Hebrew manuscripts at the Bodleian Library is a handwritten draft edition of a section of the legal code Mishneh Torah by Rabbi Moses ben Maimon, known as Maimonides (1135-1204)[1]. The Mishneh Torah was completed in 1180 and consists of a Jewish legal work by subject matter of the entire Talmudic and Gaonic literature of Jewish law. The manuscript, which was recently on display at the Bodleian Library’s Marks of Genius exhibition, has ten leaves[2] and was bought from the Cairo Genizah through the Rev. G. J. Chester in 1890. The Cairo Genizah is a designated room attached to the old Ben Ezra Synagogue in Cairo where discarded pages containing the name of G-d were deposited, to preserve G-d’s name from profanation. It was allowed to accumulate over a period of about a thousand years.
The manuscript[3] contains the Laws of Hire (sechirut) and the Laws of Borrowing and Deposits (Sh-eilah upikadon) and it is clearly a draft copy that was undergoing edits in the text before the final version was completed. As a work in progress, the manuscript offers a rare glimpse into the thinking process of Maimonides in his formulation of the laws.
In this essay, I will analyse an aspect of this manuscript relating to the subject of a borrower and look at an addition in the margin of the manuscript that was later included in the main text of the completed work. The question we will address is: a) What is the significance of this addition to the laws of a borrower. b) What are its implications to other areas of Jewish law. c) What is the source for the addition that does not seem to appear in the work of the Talmud. In addition, I will propose that the marginal note is relevant to the Jewish holiday of Sukkot, inheritance laws and a wedding ceremony.
I Introduction to the sources and discrepancies
II Parallels to Inheritance Laws
III Parallels to Sukkah and Marriage Laws
IV Conclusion
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Part I: Introduction to the sources and discrepancies
The right of a lender to retract a loan
The law in the manuscript pertains to the question of the status of a loan for a particular period of time. If someone borrows an item for a specified period, to what extent does he have ownership of the item during that period? The text of Maimonides regarding this law in the standard printed edition states as follows[4]:
When a person borrows an article or an animal from a colleague without making any stipulation, the lender may require him to return it at any time. If he borrowed it for a set time, once he performs meshichah(drawing near) with it, he acquires it, and the owner may not compel the borrower to return it from his possession until the conclusion of the period for which it was borrowed. Indeed, even if the borrower dies, his heirs are entitled to continue using the borrowed article until the conclusion of the period for which it was lent out.
(Mishneh Torah, Laws of Borrowing and Deposits 1:5)
Source in Talmud
This law implies that the item belongs to the borrower from the time the borrower takes possession of it, after which the borrower is fully liable and the lender no longer has a right to retract the item. This law that limits the right of a lender to retract from the time of possession, as opposed to actual use of the item by the borrower, is based on a law in the Talmud[5], which presents three opinions on the matter:
Rabbi Huna said: One who borrows a hatchet from his fellow for a particular period of time, once he has chopped with it, he has acquired it, and cannot renege on his agreement to lend the tool for the stipulated amount of time, but so long he has not chopped wood with it, he has not acquired it, and the lender can renege on his agreement.
Rabbi Ami said, if one lends a hatchet belonging to the Temple treasury to another person the lender thereby misappropriates that consecrated object according to the benefit of gratitude involved in the lending, the borrower is permitted to chop wood with the hatchet even in the first place (with the full approval of Jewish law).
Rabbi Elazar said: In the manner that the Sages instituted “drawing near” (Meshichah) as a method of acquisition in cases of purchasers, so they instituted “drawing near” (Meshichah) as a method of acquisition in cases of custodians[6].
(Bava Metzia 99a)
The opinion of Maimonides above - that if he borrowed it for a set time, once he performs meshichah (drawing near) with it, he acquires it, and the owner may not compel the borrower to return it from his possession until the conclusion of the period for which it was borrowed – follows the opinion of Rabbi Rabbi Elazar who maintains that as soon as there is “drawing near” (Meshichah) of the items - possession – the lender may no longer retract the loan.
Logic added in text
Based on the third opinion presented above, Maimonides seems perfectly understandable in light if its source as presented in the Talmud. Maimonides, however, out of character, adds a relatively extensive logical deduction for this law that does not appear outright in the work of the Talmud. Maimonides gives the following explanation to the curtailment of the right of the lender to retract for the duration of the loan:
This concept can be appreciated by logical deduction. A purchaser acquires the body of the article he purchases forever in return for the money he gave. The recipient of a present acquires the body of the article he receives forever, although he did not give anything. Similarly, a renter acquires the body of an article for the sake of deriving benefit from it for a limited time in return for the money he gave. And a borrower acquires the body of an article for the sake of deriving benefit from it for a limited time without giving anything. Thus, just as the giver of a present resembles a seller in that he cannot retract his gift forever, so too, a person who lends an article resembles one who hires it out, in that he cannot retract in the midst of the term of the agreement.
(Mishneh Torah, Laws of Borrowing and Deposits 1:5)
What is the source of this logic?
What is the source of Maimonides for this logical deduction? Spanish Rabbi Vidal Tolosa of the 14th century suggests[7] with evident apprehension that perhaps[8] Maimonides is giving his own commentary to the above opinion of Rabbi Elazar in the Talmud that serves as the basis for the law.
The Talmud compares the method of acquisition - ‘drawing near’ - by a borrower to the method of acquisition of a purchaser. This comparison in the Talmud is to explain that just as a seller cannot renege on a sale once the purchaser is in possession of the item, similarly, a lender cannot renege on a loan once the borrower takes possession of the item. The point the Talmud is aiming to make with this comparison is that the borrower need not wait for the item to be actually used, for the right of the lender to be curtailed, but rather as soon as the items is ‘drawn’ in an act of acquisition, the lender cannot renege on the loan.
Maimonides however appears to elaborate on this comparison to explain further why a lender cannot retract a loan in the first place. The logic of Maimonides is that a loan is similar not only to a purchase but also to a gift and hire. Despite the a. lack of payment in a gift and the b. temporary use of a rented item, the person granting the gift and offering the item for hire, respectively, may not retract the items once transferred. In the same way, even though a loan a. does not entail payment by the borrower and b. is only for a temporary period, these features do not impact the substance of the acquisition of the item and the lender may not retract the item for the period of the loan.
While the rationale of Maimonides makes sense, it is hardly a literal reading of the rationale offered by the Talmud. Furthermore, the focus of the argument is quite different to the Talmud. Whereas the Talmud is focusing on the rationale for the onset of the limitation of a lender to renege - why it begins at the time of acquisition, as opposed to its use, Maimonides focuses on the rationale for the status of the loan itself – the inability of a lender to renege all together on a loan once it has been acquired, despite it not being identical to a purchase. It is therefore a stretch to read the lengthy logical reasoning of Maimonides in the text of the Talmud.
Not in the source
Spanish Rabbi Shem Tov ibn Gaon (1283-ca. 1330) argues[9] that the logical reasoning in Maimonides is in fact his own reasoning for the law, and is not based on the Talmud. Shem Tov ibn Gaon further writes that the Gaonic sages agreed with Maimonides’ reasoning. He contends however that this logical reasoning in the middle of a law by Maimonides does not appear in the Talmud.
Marginal note
In the Oxford draft edition of Maimonides’ Mishneh Torah, it is evident that the text of the logical reasoning pertaining to the acquisition of a loan and the limitation of a lender, similar to a gift and hire, was not in the original text. This logic was written in the margin of the manuscript and only later added in the main text for the completed version, as can be seen today in the standard text of Maimonides’ published Mishneh Torah pertaining to this law. The fact that the text first appears as a marginal note and not in the main text alludes to Ibn Gaon’s opinion that the logical deduction cannot not be derived from the Talmud and was therefore not included in the main text when it was first drafted. It was later however added by either Maimonides himself or the son of Maimonides’ Rabbi Avraham ben Harambam or another disciple.
Part II: Parallels to Inheritance Laws
Reason for omitting logical reasoning – a loan does not enjoy full ownership
I would like to argue further that the logical deduction – comparing the acquisition of a loan to a purchase - is problematic. The above reasoning of the law comparing the acquisition of a loan to a gift, and its implication - the inability of the lender to retract the loan upon the acquisition of the loan by the borrower - seems to imply that there is a full acquisition of the borrowed item by the borrower for the duration of the loan. In Jewish law, however, this question is a matter of dispute and resolved that acquiring the body of an article for the sake of deriving benefit from does not enjoy the same degree of full ownership as a purchased item. This view is in fact also the opinion of Maimonides! We will present the dispute in the Talmud regarding the status of ownership of a loan and its decision in Jewish law, including the legal work Mishneh Torah of Maimonides.
Talmud – possession of the right to benefit from a property is not the same as possession of the property itself.
The question of limitation of ownership of an item when it is acquired for the purpose of deriving benefit, as oppose to outright purchase, is a dispute amongst two sages of the Talmud: Rabbi Yochanan maintains that the ownership has the full potency of ownership as a purchase. Rabbi Yochanan maintains the ownership does not have the same potency as a purchase.
The subject of the dispute pertains to a father who wishes to circumvent the laws of inheritance and writes a will in which he transfers ownership of all his property to his favorite son. The father meanwhile, however, while still alive, wishes to enjoy the use of his property. The question addressed in the Talmud[10] is if the father or the son, in the interim, while the father is still living, sells the property. While not advisable, the Talmud stipulates that the father may indeed sell his possessions but must be returned to the son upon his death, as promised in his will. The son also may sell the possessions but the sale only comes into affect once the father passes away, when the son gains ownership.
The difficulty in the Talmud is what if the son sells the possessions but passes away before the father, so the will has not and will seemingly never come into affect. Is the sale valid? The premise to this question is the state of ownership by the father of his possessions in the interim – after the will has been written but not executed. Once the will has been written with the promise to give the land to his son, does the father – by his enjoyment of use of the possessions in the interim - retain full ownership of his possessions – thereby nullifying any sale the son makes, or does he only have limited ownership, thus allowing the son to sell if he so wishes, albeit to take affect only after the father passes away? If the latter, then in this case, even though the son passes away first, the sale still takes affect after the father passes away.
The answer to this question is a dispute between two Talmudic sages. Rabbi Yochanan's position is that the buyer will not have claim to the estate even when the father eventually dies because acquisition of use (kinyan peirot) was powerful enough to prevent such a sale, and the only time he can gain ownership is when the father dies first and his gift to his son is completed. Since the son died, this will never come into effect. Rabbi Shimon ben Lakish rejects this position and rules that the father's acquisition of use (kinyan peirot) cannot be considered potent enough to prevent such a sale from being actualized in favor of the buyer. The sale by the son therefore does come into effect once the father passes away.
Although the general rule is that the law follows the view of Rabbi Yochanan in disputed with Rabbi Shimon ben Lakish, this is one of the three cases cited by the Talmud in which the law is like Rabbi Shimon ben Lakish.
Maimonides
This law is subsequently codified by Maimonides[11]:
When a person has a legal record composed giving property to his son after his death, the body of the property becomes the son's from the time this legal record is composed. The benefit from the property is retained by the father until he dies. Accordingly, the father cannot sell this property, because it has already been given to his son. Nor can the son sell the property, because it is under the father's control. If the father dies and there is produce attached to the ground on this property, it belongs to the son. The rationale is that a person feels a closeness to his son. If the produce has already become detached or it is ready to be harvested, it belongs to the other heirs. If the father transgresses and sells the property, the sale is binding until he dies. When he dies, the son expropriates the property from the purchaser. If there was produce attached to the property, its worth should be evaluated and credited to the purchaser, and the son must pay him for it. If the produce was detached or ready to be harvested, it belongs to the purchaser. If the son transgresses and sells the property, the purchaser does not receive anything until the father dies. If the son sold the property during the father's lifetime, the son died, and then the father dies, the purchaser takes possession of the property when the father dies. The sale of the property by the son is not nullified, because the father possesses only the right to benefit from the property, and possession of the right to benefit from a property is not the same as possession of the property itself.
(Mishneh Torah Zechiya uMattanah 12:13)
It would appear according to the above law that a loan that is only intended to have possession of the right to benefit from the article is not the same as possession of the property itself. This would suggest that the comparison of a borrower to a purchase and a gift does not follow the conclusion in Jewish law.
Part III: Parallels to Sukkah and Marriage Laws
Another source - Sukkah
I would like to propose that there is another source pertaining to the law of a borrower that can help us understand the principle of ownership of a loan, thereby justifying the additional text of Maimonides’ draft. This can be found in the law relating to borrowing a Sukkah on the holiday of Sukkot. There is a dispute in the Talmud whether a person may borrow a Sukkah for the purpose of fulfilling the Mitzvah to eat in a Sukkah during the holiday of Sukkot. The question is centred on the Biblical requirement for a Sukkah to be owned by the person, based on the verse: "The festival of Sukkot you shalt keep for yourself for seven days". The Talmud presents the dispute as follows[12]:
It has been taught: R. Eliezer said: Just as one cannot fulfill his obligation on the first day of the Festival with the lulav belonging to his fellow, since it is written[13], "And you shall take for yourselves on the first day the fruit of goodly trees, branches of palm-trees" i.e., from your own possessions, so too one cannot fulfill his obligation with a Sukkah of his fellow, since it is written[14], "The festival of Sukkot you shalt keep for yourself for seven days" i.e. from your own possession. The sages say: Although they said that one cannot fulfil his obligation on the first day of the Festival with the lulav belonging to his fellow, he may nevertheless fulfill his obligation with the Sukkah of his fellow, since it is written[15], "All that are homeborn in Israel shall dwell in Sukkot" this teaches that all of Israel are fit to sit on one Sukkah. And how do the rabbis interpret the words "for yourself"? It is needed to exclude a stolen [Sukkah]; but as to a borrowed one, It is written, "All that are homeborn."
(Sukkah 27)
Rabbi Shlomo Yitzchaki argues that the permission to use a borrowed Sukkah is not based on the consideration that the requirement of exclusive ownership is suspended due to the verse indicating the idea of all of Israel sitting in a single Sukkah, but on the contrary the ownership of a loan is sufficient for the status of ownership of a Sukkah for the holiday of Sukkot[16]. The reasoning is since the idea that all of Israel shall dwell in a single Sukkah, as implied by Leviticus[17]: "All that are homeborn in Israel shall dwell in a single Sukkah" is possible in three hypothetical ways: each individual takes possession of the Sukkah in turn during Sukkot; collective ownership if each individual pays a certain amount to cover their share of ownership; borrowed from a single owner collectively. As the first two options are impossible and not worth a minimum value of significance to be regarded of value respectively, the third option remains, thereby indicating that a borrowed Sukkah counts as ownership.
Rabbi Schneur Zalman of Liadi similarly argues this in his code of Jewish law[18]:
Even though the Torah states "The festival of Sukkot you shalt keep for yourself for seven days", meaning it should be yours and not of a colleague, nevertheless, a person may fulfill his obligation with a borrowed Sukkah. The reason is since the person enters the Sukkah with permission, it is as if it is his own.
Two explanations for ownership of a loan
Rabbi Solomon ben Judah Aaron Kluger (1783 - 1869) argues the ownership of the Sukkah is for its use, similar to the concept of ‘possession of the right to benefit from a property’, which is not the same as possession of the property itself. However, since there is ownership of the benefit of the Sukkah, that is sufficient for it be considered exclusively ‘yours’ for the use of a Sukkah[19].
Based on this concept of ownership of a borrowed item one can justify the comparison with a purchase. The ownership of the use of the borrowed article is considered complete ownership, albeit not ownership of the principle of the item itself. This is adequate ownership to restrain the lender from retracting the loan until the end of the period of the loan.
Rabbi Menachem M. Schneersohn (1902-1994), known as the Rebbe, argues[20] that the ownership of a borrowed Sukkah may be conceived as total ownership. This is based on the idea that the intention of borrowing a Sukkah is for the purpose of full ownership. This is implied in the Biblical verse[21]: “You shall dwell in Sukkos” – in the same manner you are accustomed to dwell in your home throughout the rest of the year[22]. Based on this definition of a Sukkah, the borrowing of the Sukkah implicitly was with this purpose in mind. This would constitute a loan with the intention of having sole ownership of the Sukkah during the period of the loan, thus fulfilling the requirement of owning a Sukkah.
Wedding ring
The status of acquisition of a loan if articulated that it is for a specific purpose that requires ownership is similar to what is found pertaining to the law of marriage. Jewish law stipulates[23]:
One who borrows an object from his friend and let him know that he wanted to use it to betroth a woman she is betrothed. And if not, she is doubtfully betrothed.
Rabeinu Asher argues that if it was told to the lender that it is being used for the purpose of marriage we presume that ownership of the ring was transferred to the borrower sufficient that it may be used for the purpose of marriage. If there was no notification to the lender that the ring is being used for a marriage, it may still be used for marriage in the event the following four conditions are fulfilled[24]: a. it was borrowed for a specific period of time. b. the lender gave permission to the borrow to lend to a third party. c. the groom notifies the bride that it is a borrowed item. d. the ornamental value is minimally the worth of a low value coin (prutah).
We can derive from the case of the Sukkah and the wedding ring, that a borrowed item for a specified time period and intended to act as an acquisition even for the purpose of its use it still constitutes ownership and restricts the right of the lender to exercise his ownership.
This may explain the reason for Maimonides’ addition in the draft of the Mishneh Torah. Despite the fact that the possession of property for the purpose of benefit from the property is not the same as possession of the property itself the comparison to a gift and a purchase is still a valid comparison, since the acquisition of the article is complete and the lender is curtailed from retracting the loan. This is relevant in the case of a Sukkah when mention is made that it is being used for a Sukkah and a wedding ring borrowed for the purpose of marriage. In both these cases the ownership of the borrowed item constitutes exclusive ownership, even if it is not the ownership of the principle article (the ring or the value of the ring must be repaid) – it still constitutes for all practical purposes ownership, as a purchase and a gift, thus validating a marriage and fulfilling the Mitzvah of sitting in one’s own Sukkah.
Use as ownership
The logic why deriving benefit from an item constitutes full ownership for all practical purposes, event though the principle belongs to the owner, can be understood from the view of Wittgenstein (1889-1951) that language is fixed not by laws so much as by what he calls “forms of life,” referring to the social contexts in which language is used[25]. This can be understood to mean in our context that ownership of an item is defined as ownership when seen in the context of its use. If therefore a person has full use of the item, it constitutes and is defined as ownership even if the principle of the item belongs to the owner.
This can be derived also from the statement in the Talmud that a person without a home to express him or herself as a human being is required to, cannot be defined as a human being. The logic is the same: the ‘forms of life’ of a person constitutes the person. Similarly, the use of an items constitutes the definition of ownership of an item in the context of Jewish law, as explained above.
Part IV: Conclusion
In conclusion, I have argued that the marginal note in Oxford’s draft edition of Maimonides’ Mishneh Torah is a logical deduction that is not directly derived from the Talmud, but serves as a general rationale for the law that limits the rights of a lender and offers full ownership of the borrowed item by the borrower. I have further qualified this by explaining that this ownership is not defined by principle ownership of the object, as Jewish law does not recognize full principle ownership of an item when the item that is being borrowed is only for benefit. Nevertheless, this does not limit the item being defined as being owned during that period by the borrower for all practical purposes. Finally, two examples of this definition of ownership have been presented: the ownership of a borrowed Sukkah when intended for the festival of Sukkot and the borrowing of a wedding ring when intended for a marriage ceremony with a number of conditions attached, as explained above. Despite the absent of principle ownership of a borrowed Sukkah and a borrowed wedding ring, Jewish law recognises the possession of these items as full ownership and therefore permitted to be used in the above contexts. The rationale for this may be understood in the work of the Talmud and Wittgenstein: both present language as ‘forms of life’ that define language as forms as opposed to existential being.
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Footnotes
[4] Mishneh Torah, Laws of Borrowing and Deposits 1:5
[6] This is disputed in the Talmud by Rabbi Huna (Bava Metzia 99a), who maintains that the right of the lender to retract is curtailed only once the borrower actually uses the item. The reason is so work should not be left unfinished (Ritva).
[7] Maggid Mishneh, Sheilah Ufikadon 1:5
[8] The word in Hebrew is ‘uliy’, which means perhaps
[9] Migdal Oz, Sheilah Ufikadon 1:5
[11] Mishneh Torah Zechiya uMattanah 12:13. See also Zechiya uMattanah 10:15
[16] This argument is disputed by Tosafist who claims that the Talmud is in fact suspending the requirement of the need of exclusive ownership of a Sukkah. Avnei Miluim (28:33), Mekor Chaim (448:9), Sha’alot Teshuvot Chasam Sofer (180) also proposes that a borrowed Sukkah is permitted because a Sukkah does not require total ownership, due to the verse "All that are homeborn in Israel shall dwell in a single Sukkah", as long as it is not stolen.
[18] Shulchan Aruch HaRav 637:3
[19] This would appear to suggest a limited ownership of the Sukkah and thereby suggest that a loan similarly can only be considered a partial ownership.
[20] Chidushim Ubiurim B’Shas 2:10
[23] Shulchan Aruch Even Haezer 28:19
[24] Beis Shmuel Even Haezer 28:48
[25] Philosophical Investigations