IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
IN THE COURTS OF THE NATIONS - DataSpace - Princeton ... IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
The Assarraf collection provides a good starting point for understanding why Jews decided to bring their intra-Jewish cases to ‘udūl. 8 As mentioned earlier, approximately 2% of the documents in the Assarraf collection concern intra-Jewish notarial contracts. The majority of these (about two-thirds) are powers of attorney in which one Jew grants another Jew agency to represent him in all legal matters. 9 Often such powers of attorney were drawn up among family members; for instance, on June 21, 1874, Ya‘aqov made his father Shalom his agent. 10 Others were among friends or business associates, such as when Maymon b. Sūsān made Shalom his agent. 11 It is no surprise that Jews drew up such powers of attorney with ‘udūl; if a Jew wanted to represent another Jew in a sharī‘a court, only an Islamic legal document would constitute proof that he had power of attorney to do so. 12 In this case, the services of Jewish and Islamic courts were not competing, since Jews could not use sofrim to draw up intra-Jewish powers of attorney if they wanted a qāḍī to consider these documents valid. Most types of contracts did, however, engender direct competition between sofrim and ‘udūl since both types of notaries provided equivalent services. Even in these cases, Jews sometimes chose notarization in a sharī‘a court. This was especially true for real estate transactions, particularly sales of property. Real estate transactions constituted about 20% of the intra-Jewish documents in the Assarraf collection. 13 Among the other collections I consulted, real estate transactions made up over two-thirds of the intra-Jewish contracts notarized by 8 Since the other intra-Jewish contracts notarized by ‘udūl which I found are not part of larger collections from one family, they cannot inform us about how individuals or families chose this kind of jurisdictional boundary crossing as a general rule. 9 That is, 26 out of a total of 39. 10 TC, File #5, 6 Jumādā I 1291. 11 TC, File #4, 21 Dhū al-Qa‘da 1291. 12 For an intra-Jewish power of attorney outside of the Assarraf collection, see PD, 29 Dhū al-Qa‘da 1305, power of attorney from Avraham b. al-Shaykh Ya‘aqov and his son Moshe. 13 That is, 8 out of 39. 122
‘udūl. 14 Most real estate transactions concerned the sale of property. For instance, on June 16, 1859, Shalom bought a room in a house near the entrance to the millāḥ from Mardūkh b. Hārūn b. Dūkh b. Salīn, his full brother Ḥayim, and their mother Manānū bint Ṣadūq b. Zāzūn for the sum of 375 mithqāls. 15 The Jewess Manānū’s participation in this sale was not atypical; property transactions registered in sharī‘a courts often involved women, sometimes as the sole buyers or sellers. 16 Other types of real estate transactions included buying the usufruct rights on property from other Jews; on July 7, 1913 Ya‘aqov bought the usufruct rights (zīna) to a store in the spice market (ḥānūt al-‘aṭṭārīya) from his uncle, Eliyahu b. Yehudah Assarraf, for 120 silver riyāls. 17 Jews also registered gifts of real estate to other Jews, including to their own family members. In the summer of 1860, a Jewess named Yael bat Meir Pinto gave a small house in the millāḥ of Essaouira to her three children Mas‘ūd, Jawhara, and Ajnina, and notarized the gift in a sharī‘a court. 18 The frequency with which Jews (and Muslims, as discussed below) crossed jurisdictional boundaries regarding real estate transactions suggests that there was something special about landed property. In medieval Egypt, Jews similarly registered real estate transactions in sharī‘a courts more often than other types of contract. Scholars have posited that this was because the Fātimid state required subjects to pay a special tax on transfers of real estate, such that notarizing the bill of sale in a sharī‘a court would also ensure that a record was kept of the tax having been 14 Out of a total of twenty-nine intra-Jewish contracts found in three different archives (the private collection of Paul Dahan, the University of Leiden, and the manuscript collection of Yad Ben Zvi), twenty concerned real estate transactions. 15 TC, File #1, 15 Dhū al-Qa‘da 1275. Five other documents in the Assarraf collection concern the sale of a room or a house. 16 See, e.g., PD, 16 Ramaḍān 1267: YBZ, 13 Jumādā I 1268. 17 TC, File #9, 14 Muḥarram 1313. On zīna, see Milliot, Démembrements du Habous, 57-9. See also G. Baer, “Ḥikr.” 18 PD, 20 Muḥarram 1277. See also the subsequent entry on this document in which one son mortgages his third of the house to another Jew for 500 mithqāls, also registered in a sharī‘a court (on 25 Rajab 1287). 123
- Page 81 and 82: Table 2.1 Types of Entries 2% 2% 2%
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‘udūl. 14 Most real estate transactions concerned the sale of property. For instance, on June 16,<br />
1859, Shalom bought a room in a house near the entrance to the millāḥ from Mardūkh b. Hārūn<br />
b. Dūkh b. Salīn, his full brother Ḥayim, and their mother Manānū bint Ṣadūq b. Zāzūn for the<br />
sum of 375 mithqāls. 15 The Jewess Manānū’s participation in this sale was not atypical; property<br />
transactions registered in sharī‘a courts often involved women, sometimes as the sole buyers or<br />
sellers. 16 Other types of real estate transactions included buying the usufruct rights on property<br />
from other Jews; on July 7, 1913 Ya‘aqov bought the usufruct rights (zīna) to a store in the spice<br />
market (ḥānūt al-‘aṭṭārīya) from his uncle, Eliyahu b. Yehudah Assarraf, for 120 silver riyāls. 17<br />
Jews also registered gifts of real estate to other Jews, including to their own family members. In<br />
the summer of 1860, a Jewess named Yael bat Meir Pinto gave a small house in the millāḥ of<br />
Essaouira to her three children Mas‘ūd, Jawhara, and Ajnina, and notarized the gift in a sharī‘a<br />
court. 18<br />
The frequency with which Jews (and Muslims, as discussed below) crossed jurisdictional<br />
boundaries regarding real estate transactions suggests that there was something special about<br />
landed property. In medieval Egypt, Jews similarly registered real estate transactions in sharī‘a<br />
courts more often than other types of contract. Scholars have posited that this was because the<br />
Fātimid state required subjects to pay a special tax on transfers of real estate, such that notarizing<br />
the bill of sale in a sharī‘a court would also ensure that a record was kept of the tax having been<br />
14<br />
Out of a total of twenty-nine intra-Jewish contracts found in three different archives (the private collection of Paul<br />
Dahan, the University of Leiden, and the manuscript collection of Yad Ben Zvi), twenty concerned real estate<br />
transactions.<br />
15<br />
TC, File #1, 15 Dhū al-Qa‘da 1275. Five other documents in the Assarraf collection concern the sale of a room or<br />
a house.<br />
16<br />
See, e.g., PD, 16 Ramaḍān 1267: YBZ, 13 Jumādā I 1268.<br />
17<br />
TC, File #9, 14 Muḥarram 1313. On zīna, see Milliot, Démembrements du Habous, 57-9. See also G. Baer,<br />
“Ḥikr.”<br />
18<br />
PD, 20 Muḥarram 1277. See also the subsequent entry on this document in which one son mortgages his third of<br />
the house to another Jew for 500 mithqāls, also registered in a sharī‘a court (on 25 Rajab 1287).<br />
123
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