Elements of Negotiability in Jewish Law in Medieval Christian Spain

Abstract

Changes in the foundations of the negotiability of deeds took place in Jewish law in Christian Spain towards the end of the thirteenth century and in the fourteenth century. During the twelfth and thirteenth centuries, sages there adopted the legal tradition that had been shaped in Muslim Spain and North Africa in the eleventh and twelfth centuries. This was a direct continuation of the tradition of the Geonim in Babylon of the ninth to the eleventh centuries, and was based on Talmudic law. According to this tradition, a creditor could sell a loan deed, which is a necessary condition for the possibility of developing a negotiable bill, but two other decrees significantly impeded the emergence of the negotiable bill: one was the rule enabling a lender who sold the deed to forgive the debt, and the other was the requirement of a bill of sale in order to transfer ownership of the loan deed. In the kingdom of Catalonia, the famous scholar Rashba stood at the forefront of the changes, blocking the forgiveness of a debt by a lender who sold a deed of the types: "to the lender and to whom he has empowered," and "to lender or bearer." Both deeds resemble the "pay to order" promissory note in English law. However, there is no evidence of modern negotiable instruments, where the transferee as a holder in due course obtains a bill without defects and with almost no direct links to the transferor. Rashba’s and his followers’ position appears consistent with the economic reality in the region of Catalonia and its capital city of Barcelona as a result of the transformation of the kingdom into a Mediterranean empire. Changes in the kingdom of Castile were hesitant and focused on easing the transferability of deeds by adding special clauses. Harosh ruled in the case of a deed "to lender and whom he has empowered" or a deed "to lender or bearer" that the lender/seller can forgive the debt to the borrower after the sale of the deed, rejecting the innovation of Rashba, his contemporary in Catalonia. Thus, the legal tradition in Castile, a powerful landlocked country, failed to make significant progress toward negotiability at that time, perhaps, unlike Catalonia, because of a lack of economic pressure to do so.