COMMERCIAL LAW:(Redirected from MERCANTILE LAW.)
According to Jewish law persons legally capable of entering into any form of contract are legally capable of making commercial contracts also; but it must not be forgotten that girls reach majority at twelve and boys at thirteen. Three kinds of incapables are barred out: the deaf-mute, the unsound in mind, and the minor. Bondmen are excluded because their possessions as well as their earnings belong to their masters. Married women have not full legal capacity, for they lack the control of their property, and their earnings belong to their husbands. But the authorities recognize the wife that "trades [buys and sells] within the house" with the permission of her husband (Shulḥan 'Aruk, Ḥoshen Mishpaṭ 62, 1); in fact, a woman may marry with the agreement that the husband shall have no interest in her property or its income (Ket. ix. 1). Yet the great majority of those women who have carried on trade and industry in Israel, often on a large scale and with marked success, have done so simply in the names and as the agents of their husbands.Partnership.
There is an Assyrian word used in the Talmud for "partners" (
The commonwealth of Israel in its palmiest days troubled itself but very little about ships, and controlled hardly any of the ports on its coast-line. Its maritime trade fell to Phenicians and Philistines. There were, however, in Mishnaic times, Jews who owned trading-vessels; and in the article Alienation and Acquisition the mode of making delivery of a vessel (
There is also, in a rather crude form, a law of jettison, or general average. Says a Baraita (B. Ḳ. 116b): "A ship is going along the sea; a squall arises and threatens to sink her, and they lighten her of her burden; then they take account, according to the weight, and not according to the money value; for they should not change from the usages of ship-owners." The reason of this rule is evidently that the owners of goods of small weight in proportion to value have done very little toward overloading the ship. No mention is made of other sacrifices for the common good than actual jettison; and the rule of apportioning the loss by weight rather unjustly relieves the ship-owner from contribution. But other laws on shipping, now generally in force, are not found. Rich Jews in the Middle Ages often owned ships and cargoes; but they of necessity settled disputes about these in the admiralty courts of the sea powers, not before their rabbis; and so no rulings on such disputes in the responsa literature, or in the Jewish Codes, are to be found.
There is but little mention of bills and notes in Jewish law, though it has been shown under Alienation that Abraham ben David was the first to suggest a form of bond with some elements of true negotiability; his idea, however, was not developed by later authorities. In questions of contracts with carriers and contracts of affreightment—that is, for carriage by water—the Talmud knows no special liability of the carrier; he is, like the shepherd, simply a hired keeper (see Bailments). On that sort of affreightment known as a "charter party," where a single freighter hires the ship for the voyage, the Talmud (B. M. 79a, b) gives some points which Maimonides repeats in "Yad," Sekirut, vi. 4, but with a lack of clearness which indicates that the subject treated did not come up in actual practise.Marine Insurance.
A Baraita, probably of the second century (B. Ḳ. 116b), contains the principles of marine insurance: "And ship-owners have the right to contract that whosesoever vessel is lost, they will get him another; but if it be lost through his fault [
Another Baraita (B. Ḳ. 116b) approves mutual insurance among ass-drivers (
In the Jewish law contracts for hiring service are treated more from the moral than from the commercial standpoint. The subject of apprentices is also unknown to Jewish law, doubtless for the reason that boys are of age at thirteen and may dispose of their own services.
Of commercial remedies only the lien of the party in possession for work done and for advances is recognized in the Talmud, and this incidentally in the discussions on the liability for faulty work of mechanics entrusted with goods (B. Ḳ. 98-102); but there is none of the complication of the subject which has been introduced into modern law.