Abstract
The term pistis, in its legal context, refers to various forms of trusts, loans, securities, credits, guarantees, and means of inheritance. One of its uses in Greek Egyptian papyri was interpreted as referring to title-transfer security or to fictitious ownership. This paper adds rabbinic sources from Greco-Roman Palestine to the discussion on pistis. The comparison sheds light on the rabbinic sources, as well as expands our understanding of the use and spread of a Greek legal term and concept in the eastern Roman Empire. It therefore serves as a test case for the importance of rabbinic literature as a source in the study of Greek and Roman legal traditions, supplying new evidence for using this term as referring to fictitious ownership and for its use as referring to title-transfer security. This use of the term pistis changes in the Babylonian Talmud, preserving only echoes of its original meaning.
1 Introduction
The Greek term
One of the uses of the term pistis, which has received vast scholarly attention, is
The Greek word pistis in its legal context, as well as title-transfer securities, are known not only from Greek and Roman legal literature of the first centuries CE, but also from Palestinian sources of the first and second centuries CE. The word itself, pistis, is used in second-century Greek papyri of the Judean desert, primarily as a translation of fides in various forms.
Finding a legal term rooted in Greek or Latin legal cultures in rabbinic literature is not surprising.13 As has already been argued, the rabbinic elite, living in Greco-Roman Palestine, under Roman rule, were acquainted with local Greek legal traditions as well as with Roman laws, at least to a certain extent, in certain fields and roles. Pistis, in either a Greek or Roman version, could therefore have been known to the rabbis of Roman Palestine of the first centuries CE.
The extent to which the rabbinic elite was acquainted with Greek legal traditions and Roman law is, however, still under debate, and with it the question of whether one should discuss direct influence or merely impact of Greek legal traditions and Roman law on Rabbinic halakha.14 These questions add to new attempts at broad syntheses addressing the relationship between the Tannaitic movement and the Greco-Roman Empire.15 Nevertheless, the use of a single legal instrument—pistis—is insufficient for addressing these questions, since even in a case of general light impact, there is always a possibility of individual legal transfers.16
Rather, the purpose of this paper is threefold. First, by focusing on a single legal instrument—pistis—I seek to highlight a methodological point: the importance of rabbinic literature for the study of Greek and Latin legal history in the eastern Roman Empire. Indeed, questions arising from rabbinic sources are often addressed using Greek and Latin sources. In this case I reverse the direction and expand the scope of evidence used in the study of Greek legal traditions and Roman law with rabbinic sources. The documents used so far in the study of pistis are Demotic and Greek papyri from second-century Egypt, along with Roman legal literature. Adding the transliterations of the term pistis and relevant discussions from Tannaitic literature, a corpus of legal discussions close in time and place to the Greek Egyptian papyri will address questions arising from the papyri and expand our understanding of the use of this Greek legal instrument in the eastern Roman Empire. As such, this study will serve as a test case of the importance of rabbinic literature as a source in the study of Greek legal traditions and Roman law.
Second, just as Tannaitic sources shed light on a question arising from the papyri, so will the comparison to the Greek papyri and Roman legal literature offer a new interpretation for two paragraphs in the Tosefta which mention
Third, following the discussion on the use of the term pistis in the first and second centuries in papyri and Tannaitic literature, I will review the transformation of this foreign term in Amoraic literature (rabbinic literature from the third to the fifth centuries), focusing on how the term itself was understood by the Amoraim and later the Savoraim, and what parallel term was used to describe similar legal institutions.
2 Pistis in the Egyptian Papyri and Roman Law
Recently, José Luis Alonso reviewed the history of scholarship regarding
Alonso’s claim can be illustrated from a papyrus from Oxyrhynchus, 161 CE. This papyrus is a collection of several letters regarding fugitives.20 One of these letters refers to a person named Herakleides, whose property should be confiscated. Strategoi are asked to check whether he has other property:
[ἀ ]ν̣αζητῆσαι δὲ καὶ ε̣ [ἴ τινα ἄ ]λλον πόρον κέκ̣τ̣η̣ται παρ ’ἡμεῖν ἐπὶ̣ το̣ῦ̣ ἰ̣δ̣ί̣ο̣υ̣ ὀ̣ν̣ό̣ [μα ]τ̣ [ος ]ἢ ἑτέρων ἐν πίστ̣ [ει
he (the strategos) will check if he (Herakleides) acquired any other means with us, by his own name or by others’ (names) by trust.21
As Alonso argues,22 the phrase
Alonso’s basic claim is convincing: in certain cases, such as this case, pistis refers to fictitious ownership. However, his interpretation of some of the sources may be debatable. His claim that title-transfer securities cannot be found in any of the papyri or any of the Greek sources, even though it exists in close contemporary legal traditions, warrants further investigation. In other words, pistis may refer to fictitious ownership, alongside other uses and meanings. We will therefore divide our discussion according to these definitions: pistis referring to fictitious ownership, and pistis referring to title-transfer security.
3 Fictitious Ownership
Fictitious owners do not appear only in second-century Egyptian papyri, but they are also mentioned in a series of third-century imperial constitutions. Valerian and Gallienus (joint rule 253–260 CE) describe writing purchase documents with a name which is not that of the owner, in order to hide assets in their trust (fides). Such documents are invalid, since the real owner, the purchaser, did not intend to transfer their ownership,24 and continues to retain possession of the property.25 About three decades later, Diocletian and Maximian reiterated these principles in several constitutions. They also objected to such fictitious documents (acta simulata),26 and stated that the provincial governor should rebuff any such claims of ownership on the property.27 They actually bring a case in which they describe attempts by a fictitious owner to gain ownership on a property.28 This approach continues, and is later attested in the fifth-century Syro-Roman Lawbook, which also views fictitious ownerships as invalid.29
One occurrence of the term psts in Tannaitic literature suits this description. According to Tannaitic halakha, a husband has significant financial rights over his wife’s assets and the profits they accrue during their marriage.30 Nevertheless, this does not indicate that women lack legal capacity to manage property, as in certain cases we find evidence of women transferring property or writing wills.31 Tosefta Ketubbot 9:2, when discussing the ways in which a man may limit his own rights to his wife’s property, includes a short paragraph32 that addresses the methods a woman may use to deny her husband access to her assets.
הרוצה להבריח נכסיה מבעלה כותבתן פסטס 33לאחר ,דברי רבן שמעון בן גמליאל ,וחכמים אומרין מסחק הוא בה ,אלא כותבתן במתנה מן היום עד שעה שארצה .34
“One who wishes to shield her assets from her husband, writes them as a
פסטס (psts) to another,” said Rabban Simon son of Gamliel. And the Rabbis say: “He fools her. Rather, she writes them as a gift from this day until I want (it back).”
Tosefta Ketubbot 9:2 presents two opinions. Rabban Simon son of Gamliel suggests that a woman who wishes to shield her assets from her husband’s control should write a
From the context of this paragraph alone we may infer that this psts is a bill which transfers property to another. This transfer, however, does not completely sever the linkage between the woman and her property. First, a complete transfer of ownership will serve the woman if she only seeks to deny her husband access to her property, but not if she seeks to retain access to this property for herself, since it may not enable her to regain her property in the future. In fact, the solution offered by the rabbis addresses this exact problem, suggesting a time-limited gift which may be annulled whenever the woman wishes. Second, as the rabbis claim, the psts is risky, since the person receiving the property by psts may deny the legal action, thus leaving the woman without her property. While it is not clear from this paragraph how he may do so, i.e., whether the psts includes an oral obligation or a specific written paragraph which can be denied, it is clear that the psts refers to a partial or flawed transfer of ownership.
Asher Gulak, followed by Saul Lieberman, identified the psts as
The reason psts was understood as a sale by trust is clear. Gulak, writing in the late 1930s, knew this term from the studies of Mitteis and others, who wrote in the beginning of the twentieth century. However, as Alonso has claimed, documents which were thought to refer to a sale by trust refer, in fact, to fictitious ownership.
Against this background, t. Ketub. 9:2 is clear. Rabban Simon son of Gamliel suggests that the woman write her assets in the name of another person, not in order to actually transfer ownership, but rather as a fictitious owner. During her marriage the property will be registered under the name of this fictitious owner, and thereby be unavailable to her husband, but it does not really belong to this person. It is hers and will revert to her once the marriage ends. In fact, even the expression used by Rabban Simon son of Gamliel, pistis to another (
Furthermore, if a woman registers her property to another as a fictitious owner, it is possible that this person will attempt to take advantage of the situation and seek actual ownership of the property, just as the rabbis warn and Diocletian and Maximian address in their constitutions. The rabbis, in suggesting a gift for a limited period of time, are offering a similar solution, but with a more substantive legal basis. Instead of fictitious ownership, which might put the woman at risk of losing her property, the rabbis suggest a time-limited gift deed. Such a deed gives full ownership of the property to the receiver, but for a limited period of time, and must be returned at her demand. The ownership is therefore real, yet the ability of the new owner to keep the property for himself is significantly limited. The bill he holds explicitly states limitations on his ownership, rather than a fictitious agreement based on trust. As a result, with a gift deed, unlike the psts, the receiver cannot deceive the woman shielding her assets.40
3.1 The Babylonian Interpretation
The interpretation of the Babylonian rabbis seems to indicate that they were not acquainted with the term psts, yet were acquainted with attempts at granting fictitious ownership. A discussion in b. Ketub. 79a cites a baraita41 parallel to t. Ketub. 9:2 in its discussion of the concealer’s bill (
A parallel baraita to t. Ketub. 9:2 is cited here in b. Ketub. 79a as a question responding to the previous discussion, which also refers to wives’ attempts to shield their assets from their husbands and later regain them. According to the previous discussion, one does not give one’s assets to another, yet the baraita indicates that this is actually done, either as a bill of
מיתיבי הרוצה שתבריח נכסיה מבעלה כאיזה צד היא עושה כותבת שטר פסים לאחר דברי רבן שמע׳ בן גמל׳ וחכמ׳ אומ׳ רצה לשחק בה עד שתכתוב לו מהיום ולכשארצה טע ‘דכתבה ליה הכי [הא ]46לא כתבה ליה הכי קננהו [[לוקח ]]47
They raised an objection: one who wants to shield her assets from her husband, what does she do? “She writes a bill of
פסים (psim) to another,” said Rabban Simon son of Gamliel. And the rabbis said: “he wants to fool her, until she writes [the gift] for him ‘from today until [the day] I want.’ ” The reason is that she wrote him in this manner, but if she did not write him in this manner the receiver acquires it.48
The opinions of Rabban Simon son of Gamliel and the rabbis in this baraita are similar to those in t. Ketub. 9:2, and as in the Tosefta, the content of the bill of psim is not detailed, whereas the gift deed contains an explicitly stated stipulation that the gift is valid only until she wants it returned. The (boldfaced) later Aramaic comment on this Hebrew baraita addresses this condition and adds that the woman can only retrieve her assets if her bill contains this explicitly stated condition; if not, the person receiving the bill and the assets retains ownership. In this way, the editorial comment determines that the concealer’s bill, the topic of this discussion, is, in fact, a gift deed rather than a bill of psim, and treats the bill of psim as a gift deed in which this condition is not stipulated. In this way, the unique significance of the institution of Greek fictitious ownership disappears, and it becomes a form of the well-known gift deed.49
This process seems to characterize the discussion of a concealer’s bill in Baba Batra as well. In b. B. Bat. 150b there is no mention of a bill of psim. The discussion of the concealer’s bill treats it as a gift deed, which is therefore required to meet the conditions of any other gift deed, whether given before marriage or replacing a will.50 Likewise, the Babylonian editor compiles a list of five cases of women who have written their assets to others. While the first is a case of a concealer’s bill, the others are all cases of gift deeds given in contemplation of death.51 Through this juxtaposition, the editor positions the concealer’s bill as a form of gift deed, which, beginning in the Tannaitic period, is a well-known halakhic institution.
To conclude, t. Ketub. 9:2 preserves a reference to a Greek legal concept, the pistis, in which a person is given fictitious ownership over property. This fictitious bill is well documented in Greek Egyptian papyri of the second century and is mentioned in imperial constitutions of the third century. This same bill is also mentioned in the Tosefta, of the second century, as a suggestion for a woman who wishes to shield her assets from her husband during their marriage. However, when the Tosefta is cited as a baraita in the Babylonian Talmud, the term psts is misunderstood and interpreted as a gift deed. Attempts at granting fictitious ownership, which is aimed to shield the assets of a married woman, are attested, but under a different name—the bill of the concealer (
4 Title-Transfer Security
Does this mean that either the term pistis as title-transfer security, or the mere concept of title-transfer security, were unknown in Greco-Roman Palestine altogether, or merely that pistis is a polysemous term? Indeed, pistis refers to fictitious ownership in some of the papyri as well as in one instance in the Tosefta. However, pistis may also have other definitions, including title-transfer security. Likewise, title-transfer securities may be described without using the term pistis.
The Tannaitic literature answers the above question clearly. As Asher Gulak noted,52 in t. B. Meṣ. 4:4, in a discussion on conditional sale, the Tosefta states:
המוכר שדה לחבירו ואמ׳ לו …כשתמכרנה מכרה לי בדמים הללו ,אימתי שתרצה אני בא נותן דמה ונוטלה מותר .53
One who sells a field to another and tells him … “When you sell it, sell it to me at this price, whenever you want, I will come pay its price and take it,” this is allowed.
Here, t. B. Meṣ. 4:4 describes the sale of a field which can be returned to the original owner whenever the buyer wishes. Hence, this is not a sale, but rather a loan in which the field serves as a security, by transferring ownership to the creditor. In other words, it is a title-transfer security, which is nevertheless described without using any specific technical term.
It is not surprising to find title-transfer security in the Tosefta, a source from Greco-Roman Palestine of the second and third centuries. Indeed, as Alonso has claimed, to date there is no known parallel in Greek legal sources. However, there is a clear parallel in Roman legal literature. Fiducia54 and specifically fiducia cum creditore (“trust with creditor”), or mancipatio fiducia causa (“sale by trust”) refer to a sale occurring in cases of a loan, as a security for the return of the loan, that is, title-transfer security. The fiducia differs from hypotheca55 and pignus,56 which do not transfer ownership. Pignus, a pledge, was given to the creditor until payment of the debt, although actual ownership over it was not transferred, and hypotheca was a lien, whereby the debtor could retain possession of the asset, but was obligated to surrender it to the creditor if the debt was unpaid.57
The fiducia can be traced to the Republic.58 However, it was gradually replaced by pignus and hypotheca, and by the fifth century CE is no longer found in Roman legal literature.59 In addition, as part of the editing of Roman legal sources in the sixth century, the word fiducia was replaced with the word pignus in cases which originally related to fiducia.60 Nevertheless, while the word fiducia was replaced with the word pignus in legal literature, title-transfer security itself did not completely disappear from the eastern Roman Empire. Rather, it reappears in a few sixth-century Greek and Coptic papyri, albeit without the term
If so, the concept of title-transfer security is known both from rabbinic literature of Greco-Roman Palestine and from classical Roman law, albeit without the term pistis. Does this mean that it may also be found with the term pistis? As Alan Watson has shown, fiducia cum creditore contracts included the formula fide et fiduciae, thus using the Latin equivalent of pistis. One occurrence of the term pistis in Tannaitic literature refers to title-transfer security, not only as a legal concept, but using the transliteration of the Greek term. Tosefta Baba Batra 2:2–3 states:
האוכל שדה מחמת אונו ,ונמצאת אונו שהיא פסולה ,הרי זו אינה חזקה .האוכל שדה בחזקת שהיא שלו והוציא עליו שטר שמכרה לו ושנתנה לו במתנה יתקיים שטר בחותמיו ואם אמ׳ כתבתי שטר ונטלתי מעות שטר פיסטיס הוא בידך הכל הולך אחר חזקה 62
[One] who eats [the fruits of] a field because of ʾono, but the ʾono is found to be invalid, this is not hazaqa.[One] who eats [the fruits of] a field because of a hazaqa that it is his, and he brings out a bill that it was sold to him, and given to him as a gift, the bill will stand by its signers.And if he said, I wrote a bill and took money, you are holding a bill of pistis, it all follows the hazaqa.
The Tosefta mentions two Greek terms for sale documents:
These principles stand in the background of the first and second cases of this Tosefta. In the first case, one enjoys the fruits of a field because it was sold to him. However, if the ʾono—the bill of sale—is found to be invalid, previous enjoyment of the fruits of the field does not constitute ownership by hazaqa. The second case is of one who enjoys the fruits of a field, assuming it is his. However, another claims ownership of this field, presenting a bill of sale or gift from the first person. In this case, the signatures of the witnesses of the bill must be inspected and validated. This validation will determine the ownership over the field.65 If so, the leading principles of these two cases are the priority of a valid bill over hazaqa when determining ownership, and the requirement of a valid claim (
The third case continues the previous case without changing the subject of the sentence, as can be seen from its opening: “and if he said.” In this case, the person enjoying the field supplies an alternative explanation to the bill which is drawn against him. This person agrees that he has written a bill. Furthermore, he adds that he received payment: indeed, he sold the field. However, he claims that the bill is not a regular bill. Rather it is a pistis. As a result, ownership of the field is to be determined by hazaqa rather than by validation of the bill.
If so, how should the term pistis be understood in this case? The person enjoying the field admits he sold the field. Nevertheless, he claims to have a right to enjoy the field he sold, because of the type of bill the plaintiff is holding: it is not a usual bill of sale, but rather a pistis. A title-transfer security suits such a bill, since in such a case the person who is enjoying the field is not a seller but rather a debtor. Even though the field is used as a security and is owned by the buyer, who is actually a creditor, it may still be in the possession of the debtor and he may enjoy its fruits.66
This Tosefta also raises a question regarding the unexpected use of hazaqa. In the case of payment and an actual bill in writing, along with an undenied valid claim, there is no apparent reason for using hazaqa to determine ownership, since hazaqa is used when no such evidence exists, which is not the case here. Furthermore, the pistis in this case could dismantle ownership, despite both sides agreeing that the field was paid for. This leads to the highly unlikely situation in which a person who sold a field and received its value, may then regain the very same field through hazaqa, while the buyer has paid for what he may indeed lose due to hazaqa.
A later version of this Tosefta in a baraita cited in the Babylonian Talmud served some interpreters in resolving this question. In this baraita67 the field is not paid for, whereas in the Tosefta it is paid for. This difference led medieval and modern rabbinic interpreters of the Tosefta to emend the text and claim that in the Tosefta, as well, the field was not paid for. The sale is therefore incomplete and there is room to determine ownership by hazaqa.68 Nevertheless, the Babylonian version is probably secondary, and cannot be used to emend the version of the Tosefta without support from early manuscripts.69
How then should the use of hazaqa in a case of pistis be understood? The use of clearly foreign terminology in this paragraph points to the likely link to a foreign legal institution. Fiducia, and especially fiducia cum creditore, fit the bill, since it is a form of title-transfer security and its bills include the formula fide et fiduciae, the Latin equivalent of the Greek pistis. Moreover, just as the Tosefta tied pistis to hazaqa, so does Gaius tie fiducia to usucapio—continuous use which leads to ownership.70 Gaius, the Roman jurist living in the second century, writes only twice in his Institutes about usureceptio:
Adhuc etiam ex aliis causis sciens quisque rem alienam usucapit. nam qui rem alicui fiduciae causa mancipio dederit uel in iure cesserit, si eandem ipse possederit, potest usucapere, anno scilicet soli si sit. quae species usucapionis dicitur usureceptio, quia id quod aliquando habuimus, recipimus per usucapionem.
Sed cum fiducia contrahitur aut cum creditore pignoris iure aut cum amico, quo tutius nostrae res apud eum essent, siquidem cum amico contracta sit fiducia, sane omni modo competit ususreceptio, si uero cum creditore, soluta quidem pecunia omni modo competit, nondum uero soluta ita demum competit, si neque conduxerit eam rem a creditore debitor, neque precario rogauerit ut eam rem possidere liceret; quo casu lucratiua ususcapio competit.
There are further cases in which a man knowingly acquires the property of another by usucapio. For if a man acquires possession of what he has mancipated or surrendered in iure to another by way of fiducia, he can regain ownership of it by usucapio, and that in one year, even if it be land. This kind of usucapio is called usureceptio, because by the usucapio we recover what we have previously owned.
Now fiducia is contracted either with one’s creditor through the law of pignus, or with a friend for the safer keeping of one’s property in his hands. If the fiducia is contracted with a friend, usureceptio is allowed unconditionally, but if with a creditor, it is allowed unconditionally if the debt has been paid, but if the debt has not yet been paid, then only if the debtor has neither hired the thing from the creditor nor obtained his license to possess it (precarium),71 in that case lucrative usucapio is admitted.72
Gaius later cites this principle, when discussing theft:
item debitor rem quam fiduciae causa creditori mancipauerit aut in iure cesserit, secundum ea quae in superiore commentario rettulimus, sine furto possidere et usucapere potest.
Or again, a debtor may without theft take possession or acquire by usucapio a thing that he has mancipated, or surrendered in iure by way of fiducia to a creditor, as we have related in the preceding book.73
In these paragraphs Gaius details two types of fiducia, with a friend and with a creditor. We will focus on the latter. Fiducia with a creditor (cum creditore) is made in case of a loan. When money is transferred as a loan, the creditor receives ownership of an asset as security, until repayment of the debt. However, according to Gaius, usucapio (continuous use) can create ownership not only after repaying the debt, but even prior to that. That is, the debtor may retain ownership if he continues to use the land even before repaying his debt. This kind of usucapio is called usureceptio. In his third book Gaius cites this passage, and claims that such a case is not theft.
If so, Gaius, when discussing fiducia cum creditore, and the Tosefta, when discussing pistis, add to the principle of title-transfer security another principle: continuous use leading to ownership, even prior to repaying the debt. To be sure, hazaqa is not identical to usucapio and Gaius’ description is not identical with that of the Tosefta, but they are similar. First, while usucapio requires one year, according to most opinions hazaqa requires three years. Only R. Juda (in the previous paragraph in the Tosefta) claims that hazaqa requires only one year in certain cases.74 Second, while both hazaqa and usucapio lead to ownership due to continuous use, they differ regarding the way in which this ownership is created. Hazaqa is used as evidence in a case in which there is no other evidence, but lacks the power to create ownership on its own, whereas usucapio has that power.75 Nevertheless, there is a similar outcome for both—continuous use leads to ownership.
Third, Gaius details two limitations of usureceptio in case of fiducia cum creditore—hiring and precarium. In both cases, the creditor has agreed to possession of the security, with or without paying for this possession. In these cases, usureceptio does not apply. Such limitations are not mentioned in t. B. Bat. 2:2–3 or in the surrounding context. However, the description in the Tosefta and the context of the paragraph reflect an argument between a creditor and a debtor, or a buyer and seller, regarding ownership and enjoyment of the field. Any claim about previously agreed temporary possession such as precarium or hiring does not suit the cases described.
The similarity between fiducia cum creditore according to Gaius and the Tosefta relates, therefore, to the core point of combining title-transfer security and ownership by continuous use. Like the Tosefta, Gaius’s description raises a similar issue: there is no point in transferring ownership as a security, if this ownership can be recovered, not only through payment of the debt but also through usureceptio, and such usureceptio would not be considered theft. Clearly, this vacates the very concept of the security.
The problem with usureceptio in case of fiducia cum creditore seems to have bothered Gaius himself. He tags such a case as lucrative, just as he tagged usucapio pro herede (“usucapio of inheritance”), which he tried to excuse with a historical explanation.76 Such an explanation, however, is not given for usureceptio in case of fiducia cum creditore.77 Likewise, Gaius claims that usureceptio is not theft and discusses it in this context, thus indicating that it could, in fact, be theft.78
Several modern scholars addressed the questions usureceptio in case of fiducia cum creditore raises, especially according to Gaius’ description.79 Felix Wubbe tied these issues to the early understanding of relative ownership and claimed that Gaius preserves remnants of this archaic concept. When ownership is relative rather than absolute, one must have a stronger claim than another over an asset, rather than a complete claim. In this case, after one year, the debtor had a stronger ownership claim than the creditor.80 Alan Watson rejected Wubbe’s explanation, and assumed usureceptio was introduced by jurists, as an expression of the right of possession the debtor had over the asset during the fiducia, before the return of the debt. Nevertheless, there is no evidence to support this assumption.81 Bert Noordraven explained usureceptio in case of fiducia cum creditore in light of fiducia cum amico. There is no problem with usureceptio in the case of fiducia cum amico, because there is no payment of debt. The original owner is simply taking back what he has previously given. Likewise, there is no problem with usureceptio in the case of fiducia cum creditore after paying the dept. On this basis, Noordraven claims, usureceptio was expanded from fiducia cum amico to fiducia cum creditore, despite the problems created in this kind of fiducia.82
These answers address the formation of fiducia cum creditore by contextualizing it within the early development of Roman law, whether within the development of ownership in general, per Wubbe, or within that of fiducia in the writing of Gaius, per Noordraven. Such contextualization naturally cannot be applied to rabbinic sources. Moreover, the rabbinic pistis contradicts the basic concept of hazaqa and its role as evidence rather than a creator of ownership, while the Roman usureceptio does not contradict the basic concept of usucapio. Rather, it only utilizes it in a way which is too lucrative, as phrased by Gaius, to a point which raises questions regarding the feasibility of the transaction. This, together with the use of foreign legal terminology in the Tosefta, points to the possibility that the source of this legal tradition is Greco-Roman, and it was transferred into rabbinic legal literature. The transfer of this legal instrument may explain the obscure use of hazaqa in the rabbinic sources.83
Finding title-transfer securities in rabbinic sources emphasizes two additional points. First, the evidence in the Tosefta demonstrates that, in second- and early third-century Roman Palestine, title-transfer securities were known and probably used not only in the west, as evident from Gaius, but also in the eastern Roman Empire, with or without using Greek legal terminology and relating to a Greco-Roman legal tradition. It is therefore more difficult now to claim that pistis refers only to fictitious ownership and not to title-transfer security, as Alonso claimed. Likewise, it is harder to claim that fiducia disappeared, or was only a part of the western Roman Empire. Rather, it is more likely that the Byzantine evidence of title-transfer security reflects a legal institution which was used in the eastern Roman Empire, possibly even continuously.84
Second, the Roman version of fiducia cum creditore, which includes usureceptio, seems to be the origin of the contemporaneous rabbinic description of pistis, which includes hazaqa. The use of a Greek term—pistis—to describe a Roman legal instrument correlates with the general use of Greek as the language of administration in the Roman East.85 This, however, does not eliminate the possibility that, while the rabbinic description of this institution may reflect a Roman legal instrument, the acquaintance with and use of it, despite its flaws, may be based on a local legal tradition, whether Greek or even Semitic, which is later related to the common Roman legal instrument. In other words, while it seems to be a foreign legal institution, its acceptance may, in fact, be the result of its familiarity, despite its different format.86 Furthermore, the widespread use of this legal instrument may indicate that it may have had early roots in several places, for various reasons that are currently unknown. Its broad use may explain its survival, despite its problematic, and “lucrative” nature. Nevertheless, to date, there is no evidence of such options.
4.1 The Babylonian Interpretation
As we have seen in the case of fictitious ownership, the interpretation of the Babylonian rabbis has demonstrated that they were not acquainted with the term psts, yet were acquainted with attempts at granting fictitious ownership. A review of the use of the term psim (or psis) when referring to title-transfer security will reveal a similar phenomenon. A baraita parallel to t. B. Bat. 2:2–3 is cited in b. B. Bat. 154b and is attributed to Bar Kapara. It is cited as part of a discussion about the evidence required to determine acquisition, and specifically bills which were admitted to by the debtor, but have not yet been authenticated:
תא שמ [א ]שאל רבי שמעון בן לקיש את רבי יוח [נן זו ששנוי ]א במשנת בר קפרא הרי ש [היה אוכל שד ]ה ובא בחזקת שה [יא שלו ]ובא אח [ר וקרא עליו ]87ערער כלימר שלי היא והוציא זה את אונו לומר שמכרתה לי או שנתתה לי במתנה אם אמר איני מכיר בשטר זה מעולם יתקים שטר בחותמי [ו ]אם אמר לו שטר פסיס זה או 88שטר אמנה זה או 89שמכרתיה לך ולא נתתה לי דמים אם יש עדי [ם ]הלך אחר עדים אם לאו הלך אחר [[…ום ]]90השטר 91
Come and listen: Rabbi Simon son of Lakish asked Rabbi Yohanan: that which is taught in the Mishnah of Bar Kapara: One who was enjoying [the fruits of] a field, because of a hazaqa that it is his and another came [and] disputed this, that is [he said] “this is mine.” And [the person enjoying the field] took out his (ʾono) in order to say “you sold it to me or you gave me a gift.” If [the disputer] said: “I never acknowledged this bill,” the bill will be authenticated by those who signed it. If [the disputer said: “this is a bill of psim or bill of amana or I sold it to you, but you did not pay me.” If there are witnesses, follow the witnesses, if not, follow the [[signature]] of the bill.
Three significant differences distinguish this baraita from t. B. Bat. 2:2–3. First, as discussed above, the field is not paid for, whereas in the Tosefta it is paid for. Second, the hazaqa is absent from the baraita and from the discussion on determining ownership in the cases discussed in the baraita. It may have disappeared from the Babylonian baraita simply because of its obscurity. Third, the bill of psis is mentioned in the baraita along with two other distinct options, a bill of amana and sale without payment.
What is, therefore, the bill of psis according to this baraita alone? It cannot refer to an unpaid deed which leads to a need of hazaqa, nor to a bill of amana, since it appears as part of a list of three distinguished options—psis, amana, or unpaid bill. Rather, the psis of this baraita is juxtaposed with the actual bill of sale, the ʾono. Unlike the ʾono, the psis does not refer to any sale or gift, and cannot validate any transfer of ownership as an ʾono can. Nevertheless, it is, somehow, related to such a transfer. Such a description suits the description of fictitious ownership.92
Should this be the interpretation of the bill of psis throughout the Babylonian Talmud, or only in this baraita? In two occasions in the Babylonian Talmud the bill of psim is identified with the bill of amana, using the phrase “a bill of amana and a bill of psim” (
However, the identification of the Greek pistis and the Babylonian amana characterizes only the Amoraic layer. First, a review of the occurrences of the bill of amana and bill of psim in the Babylonian Talmud shows that the bill of amana appears in Tannaitic, Amoraic and Savoraic layers of the Talmud, whereas the bill of psim appears only in citations of Tannaitic or Palestinian Amoraic sources (as in this case),97 but never in Babylonian Amoraic and Savoraic discussions, thus indicating that, just as we have seen previously, the Babylonian rabbis may have not known or used this term.98
Second, the phrase which identifies these two bills—a bill of amana and a bill of psim—draws directly from the Palestinian Talmud. In b. Ketub. 19b the trustworthiness of witnesses who deny their signature is discussed. After citing two Babylonian versions of a midrash on a bill of amana, a midrash attributed to Palestinian rabbis is cited:
במערב׳ משמיה דרב אמרו אם און בידך הרחיקהו זה שטר אמנ׳ ושטר פסים ואל תשכן באהליך [[עולה ]] (ש )אל [[ז ]]ה 99שטר פרוע 100
In the west they said in the name of Rav: “If there is iniquity (ʾawn) with you, remove it”—that is a bill of amana and a bill of psim. “And do not let injustice (ʿawla) reside in your tent”—that is a redeemed bill.
According to this midrash, a bill of amana and a bill of psim are identical or very similar bills. The Babylonian Talmud explicitly attributes this midrash to Palestinian rabbis, and a similar midrash can be found in the parallel discussion on bills of psis and amana in the Palestinian Talmud, as part of a debate on Rav’s opinion regarding the trustworthiness of witnesses when claiming a bill is a bill of amana or positis:
כהדא .״אם און (הרח׳ )בידך הרחיקהו״ זה שטר אמנה ושטר פוסיטיס .״ואל תשכן באוהליך עוולה״ זה שטר פרוע .101
as [this midrash states] “If there is iniquity with you, remove it”—that is a bill of amana and a bill of positis. “And do not let injustice reside in your tent”102—that is a redeemed bill.
According to this midrash the bills of amana and positis are defined as
The relation between a bill of amana and a bill of positis is not clear. Since both bills may be translated as a bill of trust, some claimed that a bill of amana is a glossa translating the foreign term—a bill of positis103—while others claimed that these are two separate types of bill.104 Either way, since the Palestinian Talmud does not repeat these terms elsewhere, at this stage we may only conclude that a bill of positis is related to, or possibly identical to, a bill of amana, and that both are treated negatively.
Whether or not a bill of amana is a glossa in the original Palestinian version, it was already an inherent part of this midrash when encountered by the Babylonian editor. The Babylonian editor cited this midrash, inserting into the Babylonian Talmud a phrase which identifies the bill of psim and bill of amana.105 However, this identification does not suit the occurrences of the bill of psim in the Babylonian Talmud. The Babylonian rabbis do not use the term psim or any of its variations throughout the Amoraic and Savoraic layers of the Talmud. Rather, the rabbis are acquainted with a legal instrument which is similar to the legal concept standing behind the Greek term pistis. Bills which include an oral obligation similar to the oral obligation of title-transfer securities (but also to other obligations) are titled bills of amana, and bills of fictitious ownership of women who sought to shield their assets from their husbands are titled a concealer’s bill (
5 Discussion and Conclusions
This paper sought to understand the use of the term pistis and the use of fictitious ownerships and title-transfer securities in rabbinic literature as a way of understanding their use and spread in the eastern Roman Empire. We focused on the term pistis as it appears in Tannaitic sources in comparison to evidence from the papyri and Roman law, and in surveying its transformation within Amoraic sources. The Tannaitic literature supplied us with two different uses of the term pistis. The first refers to fictitious ownership, thus correlating with Alonso’s definition of
The survey of the Amoraic sources highlighted the difference between them and the Tannaitic sources. The Babylonian Talmud mentions the bill of psim only within direct citations, but there is no indication that the Babylonian rabbis, who lived under Sassanian rule, knew of this Greco-Roman bill, or related to it in any way.107 This led us to two conclusions. First, the unknown bill was interpreted within the structure of well-known bills. In this case, pistis was understood as a form of gift deed.108 Second, while the term pistis was not known to the Babylonian rabbis, both the fictitious ownership and bills similar to title-transfer securities were known to the Babylonian rabbis, albeit under different names.
In recent years, the discussion of the use of Greek terms in rabbinic halakha falls into two scholarly debates. First, the use of foreign legal systems, particularly Greek legal traditions and Roman law, in the study of rabbinic halakha, has recently returned to the scholarly stage, with new ideas and new analyses. Some scholars emphasize the romanization of rabbinic legal discourse, describing the rabbis “as Romans,”109 whereas others warn us from overemphasizing the parallels between Roman and rabbinic legal discourse, calling for a discussion of impact rather than direct influence.110 However, the extent to which the rabbis were influenced by Roman law, or by Greek legal traditions, cannot, and should not, be settled in this paper. Even if the rabbis were a secluded community, there still could be isolated cases in which they knew, and used, legal instruments from other legal traditions in their surroundings. This may simply be a case of a single legal transfer, just as it may be an example of a wider phenomenon of Greco-Roman influence on rabbinic halakha.
Second, the status of Greek legal traditions in the Roman Empire, and the extent to which they were preserved before and after the Antonine Constitution of 212 CE, led to a debate regarding the use of Greek legal traditions versus Roman law in the study of rabbinic halakha and the rabbinic movement.111 In our discussion, the Greek origin is clear, as can be seen from the use of pistis as referring to fictitious ownership. However, the appearance of title-transfer security in Roman law led to a comparison with this legal system. The clear parallel between the Tosefta and Gaius’ Institutes supported this choice, thus indicating that by the second century, the separation between Greek legal traditions and Roman law in Greco-Roman Palestine was not so marked.112
This paper has presented a case study in which not only do Greek and Roman sources shed light on rabbinic sources, but also the reverse: rabbinic sources shed light on the development and spread of a legal concept and contribute to a scholarly debate within the study of the papyri and the history of Roman law. The method used in this paper has shown the significance of rabbinic sources and comparative approaches both for their own study, and as a source for understanding the development of legal concepts in the eastern Roman Empire.
This paper was first presented at the Tzuba Workshop in Jewish Law, September 2021. I wish to thank the participants of the workshop for their insightful comments. Special thanks are due to Prof. Paul du Plessis, Prof. Berachyahu Lifshitz and the anonymous reviewers for their thorough reading and helpful comments, and to Mrs. Sara Tova Brody for her sensitive editing. This research was supported by the Israel Science Foundation (grant no. 1757/18). All errors remain, of course, my own.
All translations are my own unless specified otherwise. All citations of the Babylonian Talmud were retrieved from The Friedberg Genizah Project:
For a survey, discussion and further bibliography, see Morgan, Roman Faith.
See especially Schmitz,
P.Oxy VI 907, following the discussion of Nowak, “Titius heres esto.”
See BGU I 326, which is a translation from Latin to Greek. This papyrus was discussed at length by Watson, “Identity of Sarapio”; Keenan, “Will of Gaius”; Nowak, “Substitution of Heirs”; and Strobel, Testamentsurkunden, who defined it as either a substitute heir or fideicommissum. Other papyri are P.Warr. 1; and P.Giss 35, which was described as fideicommissum by Taubenschlag, Law, 197.
PSI XIII 1325; P.Strasb. IV 277.
Prasis epi lysei reflects a flexible concept of ownership, which led to different definitions of this legal institution. For some of the discussions, see Harris, “Sale not a Sale”; Millett, Lending and Borrowing, 222–224; Thür, “Ownership”; and Harris, “Response.”
Kaser, Roman Private Law, 155–156.
P.Yadin 28; P.Yadin 29; P.Yadin 30 (all ca. 125 CE), and the discussion of Czajkowski, Localized Law, 93–103.
P.Yadin 16; P.Hever 61 (both 127/128 CE). Interestingly, in P.Yadin 16 the scribe attests that the oath is translated into Greek. Since Babatha is the one taking the oath, we may presume the oath was originally in Judean Aramaic, possibly indicating that the term bona fides had an Aramaic form. For further discussion on these land registrations, see Cotton, “Fragments”; Cotton, “Another Fragment”; Czajkowski, “Jewish Attitude.”
The stipulatio clause appears in P.Yadin 17 (21.2.128 CE); 18 (5.4.128 CE); 20 (19.6.130 CE); 21 (11.9.130 CE); 22 (11.9.130 CE); and P.Hev. 65 (7.8.131 CE), all adding the word
For a recent survey of the political developments which led to the romanization of Judea, see Czajkowski, “Law and Romanization.”
For recent discussions and surveys on the relations between the rabbis and the Roman Empire, and further bibliography, see Furstenberg, “Imperialism”; Hezser, “Did Palestinian Rabbis”; Dohrmann, “Ad similitudinem.”
See, e.g., the debatable claim of Furstenberg, “Rabbinic Movement,” who portrayed the rabbinic movement as part of the rise of local legal experts in the eastern Roman Empire, and the convincing responses of Rosen-Zvi, “Rabbis as Nomikoi”; Czajkowski, “Need for Rabbinic Nomikoi”; Dohrmann, “Roman Civil Jurisdiction,” and further bibliography noted there.
See, e.g., Monnickendam, “Exposed Child.”
For a detailed review of scholarship and full bibliography, see Alonso, “One en pistei.” Regarding MChr. 233, the first papyrus claimed to include
Alonso, 158–166.
Alonso, 166–175.
Jördens, “Zur Flucht,” at 347–348; Lewis, “Notationes Legentis.”
P.Oxy. LX 4060 ll. 50–51.
Alonso, “One en pistei,” 167–168.
BGU IV 1047 (after 121 CE):
Epitome Codicis Gregoriani 3.7.1 (259 CE).
Justinian Code 4.50.4 (May 5).
Justinian Code 4.22.2 (April 22, 294 CE).
Epitome Codicis Gregoriani 3.7.2 (May 12, 286 CE); Justinian Code 4.50.5 (290 CE); 5.16.16 (Mar. 10, 291 CE); 4.50.6 (Aug. 19, 293 CE); 4.22.2 (April 22, 294 CE).
Justinian Code 4.50.5 (290 CE); 5.16.16 (Mar. 10, 291).
Syro-Roman Lawbook § 39 (Selb-Kaufhold, 2:62); § 62 (Selb-Kaufhold, 2:80–82). See also their discussion, Selb and Kaufhold, Syrisch-römische Rechtsbuch, 3:98–100, 130–131. Selb and Kaufhold seem to be unaware of the Greek evidence, and the Tosefta, and therefore claim that this Roman ruling does not refer to a Greek practice.
m. Ketub. 8:1; t. Ketub. 8:1. For a full discussion on the expansion of the husband’s control over his wife’s assets, see Satlow, Jewish Marriage, 207–209, and Brody, “Woman.” For a discussion on the versions of this mishnah in the Talmuds, see de Vries, “Early Form,” 369–373; Rosenthal, “Talmudists Jumped,” and the bibliography noted there.
Yaron, Gifts, 138–140. For evidence of women writing wills and contracts, see, e.g., m. B. Bat. 9:7 (also cited in b. Git. 14b–15a; b. B. Bat. 151b); b. B. Bat. 153a; y. Peah 3:7, 17d (Hebrew Academy ed., 94:25); y. B. Bat. 8:6, 16b (Hebrew Academy ed., 1255:42); y. B. Bat. 8:7, 16c (Hebrew Academy ed., 1256:23). For the important role women played in the Roman economy, see Berdowski, “Some Remarks”; Jakab, “Financial Transactions”; Becker, “Roman Women” and further bibliography noted there.
This paragraph is absent from the parallel mishnah, m. Ketub. 9:1. When compared, this paragraph replaces a paragraph discussing a man waiving his rights to his wife’s assets. The paragraphs which follow in the Tosefta refer to the man waiving his rights and are similar to those which follow in the mishnah, indicating that the paragraph regarding a woman who seeks to deny her husband access to her assets is an independent paragraph, which is not part of the mishnaic and toseftan discussion. Regardless of the editing process, the paragraph itself can be dated as a Tannaitic source to the second century or possibly the beginning of the third century. If we accept the attribution to Rabban Simon son of Gamliel, it can be dated to the mid-second century. For dating Rabban Simon son of Gamliel’s presidency, see Safrai, “Nesiut.” For further discussion on this chapter and its relationship to the parallel chapter in the Mishnah, see Brody, Mishnah Ketubbot, 206–211.
MS Erfurt:
Brody, Mishnah Ketubbot, 227. For discussion, see Lieberman, Tosefta Ki-Fshutah, Nashim, 325–326.
For a similar use of this expression, see m. Git. 6:6. Cf. Reines, “Laughter,” at 178–179.
The time-limited gift is mostly discussed with regards to inheritance. See, e.g., Edrei, “Gift”; Milgram, Mesopotamia to Mishnah, 49–65.
Gulak, History, 63 n. 7; Lieberman, Tosefta Ki-Fshutah, Nashim, 325 and more recently Gvaryahu, Lending at Interest, 176–179, who follows the general lines of the earlier scholarship. See also Katzoff, “Sperber’s Dictionary,” at 201, in response to Sperber, Dictionary, 145–146.
P.Oxy LX 4060 (161 CE), as cited above in section 2.
BGU IV 1047 (131 CE).
See Brody, Mishnah Ketubbot, 227, and compare to Lifshitz, Promise, 171–172, who explains this Tosefta in a different way.
Tannaitic source cited in the Talmud. Usually, the baraitot can be distinguished from the Aramaic Amoraic Talmud since they are written in Hebrew.
For another case in which a woman used family members to shield assets, see b. B. Bat. 151a.
b. Ketub. 78b–79a. See especially the glossa added in MS Vat. 130
Rabbi Nahman was of the third generation of the Babylonian Amoraim, see Albeck, Introduction to Talmud, 298–301.
Ben Menahem, “Undisclosed Gift,” at 48.
Glossa in the manuscript.
Glossa in the manuscript.
b. Ketub. 79a according to Geniza fragment Oxford Heb. c. 17/79–80.
This also seems to be the interpretation of later medieval commentators, see for example Rashi on b. Ketub. 79a lemma
Edrei, “Gift.”
b. B. Bat. 151a–151b.
Gulak, “Mortgage,” at 82; Ostersetzer, “Institution of
Lieberman ed. Nezikin, 82.
The main legal source describing fiducia cum creditore during the Empire using these terms is Gaius, Inst. 2.59–61, as discussed below. An additional reference is Gaius, Inst. 2.220. Due to the editing process of the sixth century, other legal sources use other terms, and are therefore debatable, such as Dig. 13.7.6.pr; 13.7.8.4; 13.7.24.1; and 45.3.6. In addition, the fiducia may be mentioned in some fragmentary legal works and non-legal literature, as discussed by Kaser, Roman Private Law § 24, II, 2; § 31, II; Kaser, Privatrecht § 109; Crook, Law and Life, 244–246; Barber, “Fiducia”; Noordraven, Fiduzia, 64–65; Mousourakis, Fundamentals, 177. For fiduciary law in the Roman legal system, see Johnston, “Fiduciary Principles.”
Rabel, “Real Securities”; Goebel, “Reconstructing”; Kaser, Privatrecht § 110; Kaser, Roman Private Law § 31, III; Crook, 246–248; Watson, Law of Obligations, 179–184; Mousourakis, 179–182.
Mousourakis, 178–179; For the identification of fiducia with pignus in early medieval sources, see Sič, “Fiducia and Pignus.”
For the historical development of pignus and hypotheca, see recently Verhagen, Security and Credit.
See Buckland, Text-Book, 431–433, 473–476; Watson, Law of Obligations, 172–179; Goebel, “Reconstructing”; and Philipson, “Debt Security,” who review the different opinions on the history of fiducia.
Kaser, Privatrecht, § 250; Buckland, 431. Kaser and Buckland note an imperial constitution from April 21, 395 CE, preserved in the Theodosian Code 15.14.9, as the last mention of fiducia.
Buckland, 432; Noordraven, Fiduzia.
Stolte, “Fiducia cum creditore.”
Lieberman ed., Nezikin 133.
m. B. Bat. 3:1. See also the debate between R. Judah Ha-Nasi and Rabban Simon son of Gamliel in y. Šebu. 6:2, 37a (Hebrew Academy ed., 1362:14–21), following the correction of Lieberman, On Jerushalmi, 8. For a discussion on hazaqa, see Elon, Jewish Law, 822–828; Zeitlin, “Talmudic Jurisprudence,” at 95–100. Recently, Yair Furstenberg has reviewed the scholarship regarding hazaqa which is used as evidence (
m. B. Bat. 3:3.
The expression
Cf. Lieberman, Tosefta Ki-Fshutah, Nezikin 344. Another optional reading is to argue that the user of the field presents two separate claims. The first is that he wrote a bill and was paid, the second is that the plaintiff is holding a pistis. If these claims are separate, the bill of sale mentioned in the first claim is not the pistis mentioned in the second claim. Rather, the first claim may, indeed, refer to title-transfer security without using the term pistis, whereas the second claim may refer to fictitious ownership, using the term pistis. According to this reading the term pistis does not refer to title-transfer security in any Tannaitic source. While this reading is compelling, there is no linguistic reason to argue that the user of the field refers to two different bills and two different legal claims, rather than arguing that the word “bill” (
b. B. Bat. 154b. See full citation and discussion below.
Emending a Tosefta according to the Babylonian Talmud is a common phenomenon, see Friedman, Tosefta Atiqta, 79–86; Katzoff, “Relationship,” and the review of Mandel, “Tosefta.”
MS Vienna reads “but I did not take money” (
Yaron, “Reflections.” For its historical development, see Watson, Law of Property, 21–61.
Precarium: a gratuitous grant of land which can be terminated immediately, when the grantor wishes, see Dig. 43.26.1.
Gaius, Inst. 2.59–60. Text and translation by Zulueta, Institutes of Gaius, 1:80–81, with minor changes of the translation.
Gaius, Inst. 3.201 (Zulueta, 1:220–221).
t. B. Bat. 2:1 (Lieberman ed., Nezikin, 132).
There is limited scholarly discussion on the relationship between hazaqa and usucapio. Currently, see Cohen, “Possession”; Warhaftig,
Gaius, Inst. 2.55–57.
Wubbe, “Usureceptio,” at 29.
See especially the previous paragraph, Gaius, Inst. 3.200. In this case, a debtor takes his own property from his creditor before paying his debt, and it is considered theft. However, the creditor holds this property as a pignus rather than as a fiducia and Gaius tags this action as theft.
For a recent review and further bibliography, see Vladetic, “Some Remarks”; Verhagen, Security and Credit, 119–121.
Wubbe, “Usureceptio.”
Watson, Law of Property, 41–50.
Noordraven, Fiduzia, 198–202. See also Buckland, Text-Book, 245.
Recently, Furstenberg has pointed to similarities between Gaius and Tannaitic literature. While this case may point to a similar direction, further comparative studies on Gaius and rabbinic literature are required for such a claim, and are out of the scope of this paper. See Furstenberg, “Acquisition.”
See Stolte, “Fiducia cum creditore.”
For a recent review, see Czajkowski and Eckhardt, “Law, Status, Agency,” esp. 7–17. For the unique case of Babatha’s archive, in which the shift to Greek can be dated to 122–124 CE, see Czajkowski, Localized Law, 113–115.
In recent years, cases which were previously identified as Greco-Roman or rabbinic were found to be rooted in earlier Semitic legal traditions. An example of such a case can be seen in Babatha’s Ketubba, which was discussed both in relation to Greek marriage contracts and to Tannaitic evidence, but was eventually found in an Edomite Ostracon from Maresha, 176 BCE, as discussed by Eshel and Kloner, “Aramaic Ostracon.” Nevertheless, to date, in the case of title-transfer security, no such evidence is known to me.
The Geniza fragment is torn here. The reconstruction is based on the other manuscripts and the remnants of letters on the Geniza fragment.
In addition to the Geniza fragment, this is the version of MSS Hamburg 165, Munich 95 and the printed editions.
In the late manuscripts and the printed edition, the
Glossa between the lines. MS Escorial also adds a word between the lines—
b. B. Bat. 154b according to Geniza fragment T-S F 2(1).123 T-S AS 62.876. In most cases I have filled in the torn sections according to MS Hamburg 165. For this choice, see Friedman, Talmud Arukh, text, 64.
See above, n. 66.
b. Ketub. 19b; b. Git. 19b.
See, e.g., the translation of the Septuagint for the word
See, too, Gulak, History, 62 ff., who claims that there is no definition of bill of
b. Ketub. 19b, and especially the discussion of Lifshitz, Promise, 169–170.
The discussion of B. Bat. 154b appears to comprise two separate sections, or two parts of the same discussion. Bar Kapara’s baraita begins the second part. Following it there is a long discussion between R. Yohanan and Reish Lakish, which contradicts the first part. This structure has led some scholars to tag the second part as fictitious, see Weiss, Talmud, 18–19; Weiss, Studies in Talmud, 7–15; Atlas, “Sugya”; Epstein, Introduction, 223–227; and the rejection of Kraemer, Stylistic Charasteristics, 278–285, and Hayman, “Alternative Analysis” as well as the claim of Halivni, who defined the second section as a new and separate discussion, see Halivni, Sources and Traditions, 304–307. In any case, the bill of
b. Ketub. 79a, citing t. Ketub. 9:2; b. Ketub. 19a–b, citing y. Ketub. 2:3, 26b (Hebrew Academy ed. 962:41–48); b. Git. 19b, citing t. Git. 6:2 (Lieberman ed., Nashim 269:11–270:13).
A later hand corrected the manuscript from
MS Vatican 112. Note that this midrash is absent from MS Vatican 113, appearing only as marginalia.
y. Ketub. 2:3, 26b (Hebrew Academy ed., 962:46–48).
Job 11:14, according to the translation of the Jewish Publication Society.
Shaul Lieberman has not discussed this paragraph directly, but he is briefly cited in Rosenthal, Mishna Aboda Zara, vol. 1, 233 and Lifshitz, Promise, 169–170. Lieberman may have based his reading on the rabbinic use of
Sperber, Dictionary, 146, and Moscovitz, “Double Readings,” at 209.
See also b. Git. 19b, citing twice t. Git. 6:2 (Lieberman ed., Nashim 269:11–270:13) regarding invalid bills of get. Both the bill of psim and the bill of amana are not mentioned in the surrounding discussions or in the Tosefta. Rather, the Tosefta mentions an invalid bill (psul—
Alonso did not find the full expression
For other examples, see Monnickendam, “Kiss and Earnest,” at 329. In recent years, the place of Sassanian culture in understanding the Babylonian Talmud has grown, and raised intense scholarly debate. See the introduction to the field, by Secunda, Iranian Talmud.
This phenomenon is common in the Babylonian Talmud and can be witnessed in other halakhic fields. For example, biblical levirate marriage, which does not suit the rabbinic concept of marital union, was structured in the form of betrothal, to suit the known rabbinic model, see Weisberg, Levirate Marriage.
Lapin, Rabbis as Romans.
For a recent survey, see Rosen-Zvi, “In Mishnah” and more recent bibliography noted above (n. 14–15).
For some recent publications, see Lapin, Rabbis as Romans; Ribary, Literary Signals.
For similar conclusions, and a survey of earlier research, see Czajkowski, Localized Law.
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