IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...

But what about intra-Jewish lawsuits in sharī‘a (as opposed to Makhzan) courts? Did
these happen, and if so, did they similarly threaten the balance between the two legal orders? In
the one intra-Jewish lawsuit adjudicated in a sharī‘a court which I came across, the qāḍī upheld
the previous ruling of a Jewish court. This lawsuit concerned inheritance, and thus was probably
just the kind of claim about which the Assarraf brothers (and other Jews who registered their
inheritance agreements in sharī‘a courts) were worried. On August 19, 1802, Nathan b. Ḥayim
b. Nathan Māṣānū, a Jew living in the millāḥ of Fez, sued his cousin, Eliyahu b. Manuel b.
Nathan (the same Nathan Māṣānū who was the plaintiff’s grandfather). 49 Nathan (the younger)
had earlier gone to a beit din in order to dispute Eliyahu’s claim to property inherited from their
shared grandfather. The two had reached a settlement by which Nathan would take a fourth of
the jointly-owned synagogue and a fifth of the rest of the property. Nathan, eager to uphold this
settlement 50 —presumably out of a fear that Eliyahu would challenge it in a sharī‘a court—
preemptively brought Eliyahu to a sharī‘a court with the approval of other Jews (who were
probably the rabbinic authorities of Fez, though the document does not specify). 51 He demanded
that Eliyahu acknowledge the previous settlement or otherwise explain his actions. Eliyahu
responded that he had only agreed to the settlement out of fear, implying that it had been invalid
from the start. 52 The presiding qāḍī ruled that Eliyahu had to respect the terms of the settlement
reached in a beit din, quoting the Mālikī jurist Muḥammad b. Muḥammad Ibn ‘Āsim (d.
1426/829 AH). 53
49
YBZ, 287:37, 19 Rabī‘ II 1217.
50
Yurīdu tanaṣṣura al-faṣl.
51
The document explains that “the dhimmīs wrote [a document saying] that [Eliyahu] does not have any [grounds
for a] claim against [Nathan] (fa-kataba lahu ahlu al-dhimmati bi-annahu lā rujū‘a lahu ‘alayhi), and all this is in
the [Hebrew] script of the dhimmīs (kullu dhālika bi-khuṭūṭi ahli al-dhimmati).”
52
‘Alā wajhi al-khawf.
53
Ibn ‘Āsim is the author of Tuḥfat al-ḥukkām fī nukat al-ʿuqūd wa-’l-aḥkām, simply referred to as “al-Tuḥfa” in
our document.
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