Mishnah Gittin 1:5

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The validity of legal documents issued by gentile courts
Date: 
200 CE to 220 CE
Place: 
Syria Palaestina
Language: 
Hebrew
Category: 
Jewish
Literary genre: 
Legal text
Title of work: 
Mishnah
Reference: 
Gittin 1:5
Commentary: 

Our passage from the Mishnah addresses the legal acceptability of documents that were validated or deposited in record offices and archives. This topic is particularly important when considering rabbinic attitudes toward non-Jewish legal institutions, specifically Roman archives.

The Hebrew word ‘arkhaot is derived either from the Greek archē that, in this source, may refer to “the authorities” or “the magistrates” (Liddell and Scott, Lexicon, p. 252), or from archeion,defined as: “[T]he government building, in which the official records were kept, hence also archives, and the official records” (Arndt and Gingrich, Lexicon, p. 111). Thus, the Hebrew phrase ‘arkhaot shel goyim denotes non-Jewish archives. Asher Gulak explained that these legal documents were externally issued, then deposited in the official repository (Le-ḥeqer toldot ha-mishpaṭ, p. 54). Gedalia Alon reads this text as a reference to the archive of a Greek city (The History of the Jews, vol. 1, p. 346-347). Similarly, Moshe David Herr understood this source to discuss Roman archives rather than Roman courts. Thus, the sages approve of the archives but not the courts (Roman Rule, p. 45-48). Hanoch Albeck notes that, in this passage, ‘arkhaot shel goyim speaks of a chamber in gentile courts where legal documents are confirmed (The Mishnah, vol. 3, p. 274). A deed of gift from the Judean Desert, written in Greek, includes a pledge to chronicle that transfer of property in the official records upon request of the beneficiary: “And whenever Shelamzious summons the said Judah he will register in with the public authorities (dia dēmosiōn)” (Lewis, The Documents, p. 83-87). A similar statement occurs in another document: “This courtyard I will register for you with the public authorities wherever you wish, you paying the fee” (Lewis, The Documents, p. 88-93). In both instances, Hannah M. Cotton translates the Greek original as “public archives” rather than “public authorities” (“The Rabbis and the Documents,” p. 170). Tannaitic literature includes several appearances of ‘arkhaot,or ‘arkhaot shel goyim, as an institution that Jews would use. For example, Tosefta Avodah Zarah 1:8 states:

ולוקחין מהן בתים שדות וכרמים בהמה עבדים ושפחות מפני שהוא מציל מידן וכותב ומעלה בערכים

And they purchase from them houses, fields, vineyards, cattle, [and] male and female slaves, because he saves [these things] from them, and he writes and deposits (lit: brings up) [the deeds of sale] in the office (Roman archives).

This tosefta instructs Jews to secure their ownership of items purchased from non-Jews by registering such acquisitions in Roman archives or courts (for more on this text, see the commentary on Tosefta Avodah Zarah 1:5-8). In contrast, our mishnah discusses legal documents that may only involve Jewish parties, indicating that Jews relied on these Roman institutions. Moreover, whereas this tosefta focuses on recording transfers of ownership, this mishnah addresses legal documents more broadly. In an anonymous voice, Section A upholds the validity of all legal documents that were brought to or approved in record offices, even though their signatories are not Jewish. This statement demonstrates trust in these Roman institutions. However, this text identifies two exceptions: “writs of women,” namely divorce documents, and manumission writs. Both of these changes in status have implications for lineage within the Jewish community: for example, if declared invalid, a divorce writ would irreparably alter the status of any children of a divorcée and her new partner. We may conclude that Section A articulates confidence in Roman official records, except in cases of divorces and manumission due to their potential impact on personal status and lineage.

Section B cites Rabbi Shimon ben Yohai, a fourth-generation tanna who was active in the middle of the second century. In contrast to the anonymous opinion in Section A, Rabbi Shimon approves all legal documents from ‘arkhaot shel goyim, including of writs of divorce and manumission writs that were confirmed in those institutions. This sage clarifies the documents excluded by earlier sages: those that were prepared by a hedyot – from the Greek idiōtēs: “a private person” (Liddell and Scott, Lexicon, p. 819), or “the private citizen in contrast to the official” or “an untrained man” (Arndt and Gingrich, Lexicon, p. 371). Thereby Rabbi Shimon shows a greater degree of trust in these non-Jewish institutions.

Significantly, Tosefta Gittin 1:4 provides a more elaborate parallel of this mishnah:

A)     כל שטרות העולים בערכאות של גוים אע'פ שחותמיהן גוים. ר' עקיבא מכשיר בכולן וחכמים פוסלי' בגיטי נשים ובשיחרורי עבדים.

B)     אמ' ר' לעזר בר' יוסה. כך אמ' להן לזקנים בצידן. לא נחלקו ר' עקיבא וחכמים על שטרות העולים בערכאות של גוים שאע'פ שחותמיהן גוים שהן כשרין. על מה נחלקו. על שנעשו בהדיוט. שר' עקיבא מכשיר בכולן וחכמים פוסלין בגיטי נשים ובשחרורי עבדים.

C)     רבן שמעון בן גמליאל אומ'. אף גיטי נשים ושחרורי עבדים כשרין במקום שאין ישראל חותם.

A)    All legal documents (shtarot) that are brought to (lit. go up to) the record offices (or courts; ‘erkh’aot from the Greek archē, archeion) of the gentiles, even though those who sign them are gentiles. Rabbi Akiva approves (makhsir) all of them, but the sages disqualify (poslin) writs of divorce (gitey nashim; lit. women’s writs) and of the manumission of slaves (shiḥrurey avadim).

B)    Rabbi Eleazer son of Rabbi Yose said: So he (or they) said to them, to the elders in Sidon(Ztidan): Rabbi Akiva and the sages were not divided over legal documents (shtarot) which are brought to (lit. go up to) the record offices (or courts) of the gentiles: [they agree] that, although those who sign them are gentiles, they are valid (ksherim). [Then] on which [subject] were they divided? On those [legal documents] that were made by a private person (hedyot from the Greek idiōtēs). Rabbi Akiva approves (makhsir) all of them, whereas the sages disqualify (poslin) writs of divorce (gitey nashim; lit. women’s writs) and of the manumission of slaves (shiḥrurey avadim).

C)     Rabban Shimon ben Gamliel says: “Also writs of divorce (gitey nashim; lit. women’s writs) and of the manumission of slaves (shiḥrurey avadim) are valid (ksherim) in a place where there is no Israelite [who can] sign.”

This tosefta opens by presenting the subject being addressed: the status of legal documents from non-Jewish (probably Roman) record offices or courts that were signed by gentiles. Next, the disagreement is stated: Rabbi Akiva – a prominent third-generation tanna who was active in the second century, up to the Bar Kokhba revolt – considers all such documents valid, whereas the sages do not accept writs of divorce or manumission. Section A reflects most of our mishnah:

Mishnah Gittin 1:5

Tosefta Gittin 1:4

A)    כל האשטרות העולים בערכאות שלגוים. אף-על-פי שחותמיהם גוים כשירים. חוץ מגיטי נשים ושחרורי עבדים.

B)     ר' שמעון אומ'. כולם כשירים ...

A)    כל שטרות העולים בערכאות של גוים אע'פ שחותמיהן גוים. ר' עקיבא מכשיר בכולן וחכמים פוסלי' בגיטי נשים ובשיחרורי עבדים.

A)    All legal documents (shtarot) that are brought to (lit. go up to) the record offices (or courts; ‘erkh’aot from the Greek archē, archeion) of the gentiles, even though those who sign them are gentiles – they (the documents) are valid (ksherim). Except for writs of divorce (gitey nashim; lit. women’s writs) and of the manumission of slaves (shiḥrurey ‘avadim).

B)    Rabbi Shimon says: “All of them are valid (ksherim); [those] mentioned (as invalid) are only [those] that were made by a private person (hedyot, from the Greek: idiōtēs).”

A)    All legal documents (shtarot) that are brought to (lit. go up to) the record offices (or courts; ‘erkh’aot from the Greek archē, archeion) of the gentiles, even though those who sign them are gentiles. Rabbi Akiva approves (makhsir) all of them, but the sages disqualify (poslin) writs of divorce (gitey nashim; lit. women’s writs) and of the manumission of slaves (shiḥrurey avadim).

 

However, there are notable differences between these passages: In this tosefta, Rabbi Akiva recognizes all legal documents from non-Jewish record offices and courts; in the Mishnah, this opinion is voiced by Rabbi Shimon ben Yohai. Second, whereas this mishnah opens with a ruling in an anonymous voice followed by Rabbi Shimon’s minority stance, the Tosefta introduces the subject at hand, then presents the positions espoused by the sages and Rabbi Akiva as equal parties in a dispute. These distinctions prompt two questions. First, regarding the relationship between these parallels: does this tosefa elaborate on this mishnah, or does this mishnah offer a more concise version of this tosefta? In his seminal research on the Tosefta and its relationships with the Mishnah, Shamma Friedman considers the Tosefta to be an anthology which includes material that predates and (in some cases, considerably) postdates the Mishnah. Friedman asserts that there is often a “primacy of the Tosefta periscope vis-à-vis its parallel Mishnah,” contending that the Mishnah displays a more intensive editorial process than the Tosefta (Friedman, “The Primacy of Tosefta,” p. 100). Second, does one of these sources have a stronger tendency to validate divorce and manumission writs that were confirmed by non-Jewish institutions? For this second query, let us turn to Sections B and C of this tosefta.

Section B presents a teaching from Rabbi Eleazer son of Rabbi Yose, a fifth-generation tanna who was active in the last third of the second century, to further explain the argument between the sages and Rabbi Akiva. Saul Lieberman posits that Rabbi Eleazer is actually quoting a statement from Rabbi Shimon ben Yohai to the elders of Sidon (Tosefta Ki-Feshutah, Vol. 8, p.786); this reading assumes that our tosefta elaborates on this mishnah. Irrespective of the sage being quoted, Rabbi Eleazer is affirming that Rabbi Akiva and the sages concurred on the validity of legal documents that were confirmed by non-Jewish record offices and courts, without exception. They differed with respect to writs that were executed by private individuals, which the sages prohibited and Rabbi Akiva permitted.

Moreover, this tosefta offers a more extensive treatment of this subject:

Mishnah Gittin 1:5

Tosefta Gittin 1:4

A)    כל האשטרות העולים בערכאות שלגוים. אף-על-פי שחותמיהם גוים כשירים. חוץ מגיטי נשים ושחרורי עבדים.

B)     ר' שמעון אומ'. כולם כשירים לא הוזכרו אלא בזמן שנעשו להדיוט.

A)    כל שטרות העולים בערכאות של גוים אע'פ שחותמיהן גוים. ר' עקיבא מכשיר בכולן וחכמים פוסלי' בגיטי נשים ובשיחרורי עבדים.

B)     אמ' ר' לעזר בר' יוסה. כך אמ' להן לזקנים בצידן. לא נחלקו ר' עקיבא וחכמים על שטרות העולים בערכאות של גוים שאע'פ שחותמיהן גוים שהן כשרין. על מה נחלקו. על שנעשו בהדיוט. שר' עקיבא מכשיר בכולן וחכמים פוסלין בגיטי נשים ובשחרורי עבדים.

All legal documents (shtarot) that were brought to (lit. go up to) the record offices (from the Greek archē, archeion; or courts) of the gentiles, although those who sign them are gentiles – they are valid (ksherim). Except for writs of divorce (gitey nashim; lit. women’s writs) and manumission of slaves (shiḥrurey avadim).

Rabbi Shimon says: “All of them are valid (ksherim).

All legal documents (shtarot) that were brought to (lit. go up to) the record offices (from the Greek archē, archeion; or courts) of the gentiles, although those who sign them are gentiles – Rabbi Akiva approves (makhsir) all of them, but the sages disqualify (poslin) writs of divorce (gitey nashim; lit. women’s writs) and manumission of slaves (shiḥrurey avadim).

 

Those which were mentioned (as invalid) are only those that were made by a private person (from the Greek: idiōtēs).”

Rabbi Eleazer son of Rabbi Yose said: So he (or: they) said to them, to the elders in Sidon(Ztidan): Rabbi Akiva and the sages were not divided over whether the legal documents (shtarot) that were brought to (lit. go up to) the record offices (from the Greek archē, archeion; or courts) of the gentiles, although those who sign them are gentiles, are valid (ksherim). [So] over what [subject] were they divided? On those [legal documents] that were made by a private person (from the Greek: idiōtēs). Rabbi Akiva approved (hekhsir) all of them, whereas the sages disqualify (poslin) writs of divorce (gitey nashim; lit. women’s writs) and manumission of slaves (shiḥrurey avadim).

 

In Section C, this tosefta also includes a teaching by Rabban Shimon ben Gamliel – who was active in the second century, especially after the Bar Kokhba revolt – stating that legal documents are valid even without an Israelite signature. Therefore, the Tosefta seems to place a level of trust in legal documents that were confirmed in non-Jewish institutions – much as Rabbi Akiva approves such writs, not only from established legal institutions, but also from private persons – that goes beyond the Mishnah (at least explicitly).

Regardless of the relationship between these parallels from the Tosefta and the Mishnah, both texts clearly agree that legal documents from these institutions can be trusted. The areas of disagreement focus on divorce and manumission, though prominent voices accept them as well. On the whole, these texts confirm that Jews used Roman record offices (as indicated in the Judean Desert papyri), probably even to document manumission and divorce.

Bibliographical references: 
Cotton, Hannah M., , in Jews in a Graeco-Roman World (ed. Martin Goodman ; Oxford: Clarendon Press, 1998)
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Mishnah Gittin 1:5
Author(s) of this publication: Yael Wilfand
Publishing date: Mon, 09/09/2019 - 11:50
URL: https://www.judaism-and-rome.org/mishnah-gittin-15
Visited: Wed, 03/03/2021 - 16:16

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