Mark Cohen's latest book focuses on the ways in which Maimonides's Mishneh Torah reflects the economic aspects of the society in which he lived, one in which—in contrast with the societies to which the authors of talmudic literature belonged—international trade and large-scale commercial enterprises filled a central role. Although I would count myself among those who tend, in Cohen's words, “to take the great codifier at his word when he insists in the Introduction to the Code and elsewhere that his work was simply a compilation … of rabbinic law up to his time and contained practically nothing new” (141), and would assert that this is an accurate characterization not only of Maimonides's view of himself but of the main thrust of his work, there is no doubt that his code includes some “updating” of talmudic law, an important aspect of which Cohen has revealed. In his opinion, Maimonides was motivated primarily by a desire to enable Jewish courts to deal satisfactorily even with cases not encompassed by earlier Halakhah in order to encourage Jewish merchants to settle their disputes in this framework rather than resorting to Islamic courts; this suggestion is plausible enough, although there is no direct evidence to support it (see inter alia pages 76, 94, and 101).

The centerpiece of the volume is a study of Maimonides's treatment of a unique form of economic collaboration that predominated in the medieval Islamic world. Cohen calls this institution, which has been given various names by other researchers, şuḥba-agency. The essence of the arrangement is that each of two (rarely more) associates undertakes to execute without remuneration any commissions requested by his associate. Scholars who have written on the subject have often stressed the “informal” nature of this arrangement; Cohen, for example, emphasizes the fact that such an arrangement could be created orally, but in fact this was true of “formal” partnership agreements as well.Footnote ¹

In my opinion the most interesting features of this institution, from either an economic or a legal perspective, are two. First, when considered in isolation, each commission executed by one associate on behalf of another appears to be a simple favor or act of friendship; it is only when the larger context is considered that the agent is seen to be compensated by the mutuality of the arrangement. Second, when merchants enter into a partnership they obviously cannot know in advance how much they will gain or lose as a result, but they do know that they are committing certain quantities of capital and labor and can expect to receive a given percentage of the profits or, at worst, to bear a certain percentage of the losses. In contrast, when they create a şuḥba-agency relationship neither partner has a clear idea of the obligations he is undertaking or the benefits he hopes to receive. The commissions he will be expected to perform on behalf of his associate and those that he will expect his associate to perform on his behalf will depend on future market conditions and economic opportunities. Nor was any effort made to set a financial value on the services that each associate performed on behalf of his colleague or to ensure that the exchange of unremunerated services was an equitable one.

Cohen correctly emphasizes that Maimonides, like Saʿadiah Gaon a hundred and fifty years earlier, found a novel way to integrate this new sort of commercial arrangement into existing Halakhah, although it should be noted that neither author dealt explicitly with şuḥba-agency: each of them wrote in terms appropriate to a one-time commission, rather than a long-term and open-ended relationship.Footnote ² Saʿadiah's innovation was to treat the agent as a paid rather than an unpaid bailee; Maimonides's was to enable the merchant who commissioned the agent to impose an oath on him even if he had no specific grounds for suspecting malfeasance and could not advance a claim for a specific amount. These devices deal with different aspects of the relationship between principal and agent; logically speaking, they are independent of each other and it is quite possible that Maimonides accepted Saʿadiah's position and conceivable that Saʿadiah would have accepted Maimonides's as well.Footnote ³

I believe that Cohen overstates the extent to which the classical halakhic system was unable to handle commercial agency on the one hand and the extent to which Maimonides's ruling revolutionized this situation on the other hand. Cohen mentions two leniencies of talmudic law with regard to agents (71), although his presentation is less than clear: an agent is not held responsible for failing to execute his agency or for doing so unsuccessfully, except in what may be regarded as cases of negligence (cf. the accompanying note 6 on p. 178), nor may he be required to take an oath “attesting to the honest execution of his specific mission” when the principal does not advance a specific claim against him. Maimonides's innovation dealt only with the latter issue, and it does not seem to me that his treatment of the business agent as analogous to the ben ha-bayit was a radical step; the fact that some later authorities rejected it (102) proves very little. Furthermore, as Cohen shows (101–2), Hayya Gaon very likely anticipated this “innovation” in his work on the laws of oaths, although his responsum of 1015 (78–79, 101), which Cohen cites as a possible precedent for Maimonides, is irrelevant (albeit I am inclined to agree with Cohen that it deals with a case of agency) as it concerns a specific claim advanced by the principal and the issue with which the responsum grapples is whether written communication can take the place of oral instructions delivered face to face.

Many of the other instances of “updating” discussed by Cohen are, as he himself remarks, halakhically trivial; for example, “inserting a brief reference to commerce, seḥora, where it was missing in the foundational rabbinic text” or—if we accept Cohen's interpretation—the addition of a word to the formulation of a law in order to include the possibility of writing legal documents on paper, which had only become available relatively recently in the Islamic world.Footnote ⁴ Nevertheless these examples are of interest for the evidence they provide of Maimonides's engagement with contemporary reality not only in his responsa, where such engagement was unavoidable, but also in his codificatory activity. As Cohen notes, it would be worthwhile to explore other aspects of Maimonidean Halakhah with regard to their socioeconomic setting, and family law would appear to be a particularly promising area for such an approach (see pp. 206–7, including a substantial communication from Eve Krakowski). We owe a debt of gratitude to Cohen for his thorough exploration of an important area in which Maimonides's engagement with the social and economic realities of his society impacted his halakhic writing, which may also serve as a model for future studies devoted to other such areas.