Hostname: page-component-cd9895bd7-gvvz8 Total loading time: 0 Render date: 2024-12-27T11:03:29.418Z Has data issue: false hasContentIssue false
  • English
  • Français

Laesio Enormis and the Talmudic Law of Ona'ah*

Published online by Cambridge University Press:  12 February 2016

Daniel Sperber
Get access

Extract

It is well-known that Jewish law forbids ona'ah “overreaching”; that is to say: the act of wronging a person by selling him an article for more than its real (market) value, or, conversely, purchasing from him an article for less than its real value (M. Bava Mezia 3.4, seq.). According to (anonymous—stam) Tannaitic halacha (law), the right to claim against ona'ah was always in the hands of the injured party, and whichever side constituted the injured party (be it the vendor or the purchaser), that side had the right to choose either to declare the transaction void, or to make up, or receive the difference (T. Bava Mezia 4.3). Another view, that of R. Judah (ha-Nasi, flor. c. 170–220), is however recorded. R. Judah states that regardless of which side is the injured party, the choice as to whether to annul the transaction or to settle the difference always lies in the hands of the vendor (B. Bava Mezia 50b, Y. Bava Mezia 4.3). This (minority) view was rejected in the Amoraic period by the great Palestinian scholar R. Johanan (flor. c. 250–79), so that the later halacha follows the anonymous (majority) Tannaitic ruling (Y. Bava Mezia 4.3).

The degree fixed in Tannaitic sources for ona'ah was one-sixth (M. Bava Mezia 4.3, 7; T. Bava Mezia 3.9). That is to say, anything less than one-sixth above or below the market price was not considered ona'ah, and the transaction was valid, while one-sixth or more constituted ona'ah, invalidating the transaction, unless the injured party (stam) or the vendor (R. Judah) agreed to settle the difference.

Type
Articles
Information
Israel Law Review , Volume 8 , Issue 2 , April 1973 , pp. 254 - 274
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1973

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 For a full discussion of the law of ona'ah, see Dickstein, P., “Mehir Zedek ve-Ona'ah” (1926) 1 Ha-Mishpat ha-Ivri 15–55Google Scholar (hereinafter: Dickstein). For a recent summary of the subject, see Shilo's, S. article in Encyclopaedia Judaica, Vol. 12 (Jerusalem, 1971) 1391–95Google Scholar, with bibliography. Add: Guttman, M., Mafteah ha-Talmud Vol. 2 (Budapest, 1917) 105–8Google Scholar; Grünwald, M., Die Übervorteilung im Jüdischen Recht (Berlin, 1933).Google Scholar See also Herzog, I., The Main Institutions of Jewish Law, Vol. I (London, 1936) 112–17Google Scholar, and Vol. II (London 1939) 122–33, 299; see also Melamed, E. Z., “The Development of the Laws of Ona'ah in Mishnaic and Talmudic Sources” (1942) 3 Yavne 35–56Google Scholar and finally Zuri, I. S., Ha-'Ir'urim (Annulment in Law, Avoidance of Contracts) Vol. I (London, 1931) 87–104.Google Scholar

2 Cf., B. Bava Mezia 5 la for Rava's interpretation of R. Judah's statement. See Dickstein, ibid., p. 39.

3 Melamed, see supra n. 1 at pp. 49–50, explains that the introduction of this additional stage was to facilitate trade agreements. According to Palestinian Tannaitic ruling, in case of overreaching, the transaction remained in limbo as it were, until the vendor or the injured party decided what to do, whether to cancel the contract or to settle the difference. This was an unsatisfactory situation which was rectified by the introduction of stage (c) which automatically cancelled the transaction, unless the injured party waived his rights in the matter.

4 Zuri, op. cit. supra n. 1 at p. 98.

5 Delete Rav. See Rabbinovicz, , Variae Lectiones in Mischnam et in Talmud Babylonicum (called Dikdukei Soferim) (hereinafter VL), Bava Mezia, p. 156Google Scholar, notes 2, 3. On the Hasa-Hisda and the two Hisda problems, see Albeck, Ch., Mavo La-Talmu-dim (Tel-Aviv, 1969) p. 289Google Scholar, note 246, and p. 437, note 449; Rabinowitz, Z. W., Sha'are Torath Babel (Jerusalem, 1961) 413.Google Scholar See also the reading in Methibot, ed. Lewin, B. M., (Jerusalem 1933) 69.Google Scholar

6 Most probably this is R. Ami, R. Johanan's disciple (contra VL, ibid.). In B. Gittin 63b we find Rava and R. Nahman sending questions to R. Ami, (see Rabinowitz' remarks on this passage in Sha'are Torath Babel at 359); also in B. Bava Kama 20ab R. Ami is asked by Rav Hisda. (See VL ad. loc.) See Albeck, , Mavo La-Talmudim at 320.Google Scholar

7 This is the earlier Rav Nahman (b. Jacob) who died in 321, as opposed to the later Rav Nahman b. Isaac—usually his name is given in full—who died in 354. See also B. Bava Meda 108a.

8 The Munich Ms. reads: Said Rav Hisda: R. Ami explained.

9 See Rashi's explanation, ad loc. (Rashi=Rabbi Shlomo b. Isaac of Troyes, 1040–1105.)

10 Cf., Tarn's, Rabbenu explanation, B. Bava Mezia 57aGoogle Scholar; Dickstein, p. 46. (Rabbenu Tam=Rabbi Jacob b. Meir, 1100–71. He was Rashi's grandson.)

11 Not in Munich Ms., nor in the parallel sugya in B. Ternura 27b. Since this is not an additional statement, but the original statement upon which R. Jeremiah and R. Jona commented, it should not be prefixed by “and”.

12 As to the relationship of the two parallel sugyot in B. Bava Mezia 57a and in B. Ternura 27a, it would appear that the first half of the Bava Mezia sugya is earlier than the equivalent section in the Termura version, which clearly refers to an already existing sugya: This is good according to him that says “[It refers] to consecrated properties and how much more so to immovable properties.” This is a clear reference to the Bava Mezia sugya, where this argument is first worked out. Note also that in the Temura version there is a slight addition in R. Jeremiah's statement: “And did not R. Jeremiah say: ‘[It refers] to unconsecrated immovables’.” The word unconsecrated is the addition of the redactor of the Ternura version. However, the second half of the Bava Mezia sugya dealing with substitution etc., appears to originate in Temura and to have been later added in to the Bava Mezia sugya. See also the remarks of Dünner, J. H. in his Hagahot (to Temura) 7 (Budapest, 1921) p. 64–65.Google Scholar

13 This is R. Johanan's own statement. (The statement below: “he will answer…” is the redactor's answer according to R. Johanan.) It was not said in connection with R. Simeon b. Lakish's statement, but rather it was later juxtaposed to it by the redactor. Furthermore, it was not originally said in connection with the Mishna in Ketubot 12.4, which indeed contradicts it. On the other hand, the form of the statement “If the bargain were excessive…” shows that it was said in connection with some other text which it wished to modify. But it was not said in connection with the Mishna in Bava Mezia 4.9, since “if the bargain was excessive it has ona'ah”, refers to a statement which dealt with a single item (it), and not the four items mentioned in M. Bava Mezia 4.9 (which would provoke “…they have ona'ah”. This is assuming, of course, our Yerushalmi text is accurate). It remains uncertain what was the original context of this statement. Zuri, Ha-'Ir'urim, op. cit. supra n. 1 at p. 104, writes that “in the Rishonim (early commentators) the reading (in R. Johanan's statement) is plag (half) and not mufleget (excessive)”. He refers to Tosafot in B. Kiddushin 32b (Zuri ibid., note 32). This in order further to demonstrate the close parallels between Jewish and Roman law. However, a careful reading of the Tosafot will show that this is how they interpreted the Yerushalmi, not how they read it. Cf. Methiboth, ed. Lewin, pp. 67–9.

14 The printed ed. reads: “If he redeemed something worth one hundred for two hundred…” However, the Pnei Moshe (of R. Moses Margulies) already very correctly emended (ad loc.) the text to read “two hundred for one hundred”. We are interested primarily in protecting hekdesh from loss by redemption, and not the redeemer from his losses. The next case brought, where someone redeems a donkey for a robe is a clear case in point, since a robe (talit) usually is worth less than a donkey. The printed edition's reading is due to the influence of the Mishna above, where the woman sells “one hundred for two hundred…”

15 These words are missing in the main text of the Leiden Ms., and were added in above the lines. This view may have been so well known—we have seen it was accepted in later times—that it was brought anonymously, stam, while the unaccepted view was cited by name.

16 By R. Ami's time slaves must have been very cheap. Owners found it difficult to support their slaves, and there appears to have been widespread unemployment. R. Ami, himself, was well aware of the slave situation. See Urbach's, E. E. excellent discussion in his definitive article “The Laws Regarding Slaves as a Source for Social History of the Period of the Second Temple, the Mishna and Talmud” in Papers of the Institute of Jewish Studies, London (Jerusalem, 1964) 74–76, 84–86.Google Scholar See also infra n. 25 ad fin. It should further be noted that deeds were normally sold at below their face value. See T. Bava Mezia 4.3.

17 There were two R. Avins (Ravins in the Bavli), a father and son, who both lived in the second half of the fourth cent. Probably it is the earlier R. Avin, of the middle of the fourth century who appears here.

18 See Korban ha-Edah ad loc., (of R. David Fraenkel) contra Pnei Moshe (ad. loc). There are some precedents for the shi'ur of one-third, see Y. Kilaim 7.4, ibid. 8.7 (Y. Pe'a. 8.5). Also R. Tarfon's view in M. Bava Mezia 4.3. As to the shi'ur of one-twelfth, see R. Meir's view in M. Shekalim 1.7. This whole passage remains problematic and puzzling.

19 See the opinion of Nahmanides in his Milhamot to the Rif (Rabbi Isaac Aliasi, 1013–1103), Bava Mezia 32a (Rif's pagination). (Nahmanides, usually called Ramban, Rabbi Moses ben Nahman, 1194–1270.)

20 See Dickstein, p. 45. Melamed, supra n. 1 at p. 53, thinks that this text may be a beraita from Temple times. Also ibid., he suggests tentatively that we read “kema deitamar” (as one word) meaning “as has been stated” rather than the printed version's “de-at armai”, “as you say”.

21 See Gulak, A., Le-Heker Toledot ha-Mishpat ha-Ivri bi-Tekufat ha-Talmud, 1, Dinei Karka'ot (Jerusalem, 1929), 94Google Scholar, n. 3 et seq.

22 See Tosafot to B. Bava Mezia 57a. But cf., Maimonides Mehira 13.8.

23 Melamed, supra n. 1 at p. 51, wishes to demonstrate that in some Tannaitic texts (M. Bava Batra 7.3) we do find the law of ona'ah applied to land. However, there the Mishna discusses a case where the mistake is in the area of land sold, and not in the amount paid for it. Melamed, fully aware of this fact, argues that there is no real distinction between these two types of ona'ah. However, his argument is unconvincing. See also Zuri, op. cit. supra n. 1 at 87.

24 “Ha-Beriha ve-ha-Hazaka” loc. cit. supra n. 1; “Flight and the Talmudic Law of Usucaption” loc. cit. supra n. 1. It should be noted that R. Johanan made further modifications in the general law of ona'ah to the advantage of the seller. See Melamed, loc. cit. supra n. 1 at 43–44 and also note 27 there.

25 This is a brief summary of material examined by the author: (1968) Numismatic Chronicle 83–113; (1966) 56 Journal of Roman Studies 190–5; (1969) L'Antiquité Classique 164–8; (1970) 38 Archiv Orientalni 1–25; (1970) 13 JESHO 1–12; (1971) 14 JESHO 227–52; (1972) 9 Bar-Ilan Annual 290–6; (1972) RIDA; (1972) JESHO; To my reference on the development of the coloriate in (1971) 14 JESHO 231, n. 2, add the following: Thibault, “Le patrocinia vicorum” (1904) 2 Vierteljahrschrift für Social- und Wirtschaftgeschichte 413–20; Gelzer, H., Studien zur Byzantinischen Verwaltung Aegyptens (Leipz. Hist. Abh. 13, 1909)Google Scholar; Hardy, E. R., The Large Estates of Byzantine Egypt (New York, 1931)Google Scholar; Segré, A., “The Byzantine Colonate” (1947) 5 Traditio 103–33.CrossRefGoogle Scholar On the expense and difficulties in keeping slaves by the fourth century, see Segré ibid., p. 108, and cf. supra n. 16. Much of what we describe here is to be found well summarized in Segré ibid., pp. 118–22.

26 Pesikta de Rav Kahana, “U-Lekahtem”, ed. Mandelbaum, , Vol. 2, pp. 402–3Google Scholar; Leviticus Rabba 30.1, (ed. Margulies), 688–89; = Exodus Rabba 47.5; = Canticles Rabba 5.7.

27 Note the fragmentation of R. Johanan's estate, and cf. Jones' remarks in (1953) 43 Journal Roman Studies 52, 57.

28 The continuation there is as follows: When R. Johanan died, his generation cited the following verse concerning him: “If a man would give all the substance of his house for love” (Cant. 8.7)—the love that R. Johanan had for the Torah—“he would be utterly condemned”. But cf. B. Sota 21a, according to which it would appear that he was supported by the Nasi. (Read with the printed text: R. Johanan debei Nesiah, though the Munich Ms. omits the word debei, leaving R. Johanan Nesiah. However, we know of no “prince” by that name.) This was when he was young, for as a youth in Sepphoris, he lived with the Nasi—he was an orphan. (See Hyman, A., Toldoth Tannaim Ve'amoraim (London, 1910) 654–55Google Scholar). However, later in life, when he left Sepphoris for Tiberias, and had to fend fot himself, he sold his properties to support himself.

29 See Lieberman's remarks in (1946) 36 Jewish Quarterly Review 346. The commonness of the sale of patrimonies by the later fourth century is reflected in an interesting change between two versions of one custom. In Y. Kiddushin 1.5 (Y. Ketubot 2.10) we read concerning the institution of the Kezaza: “When a person sold his patrimony his relatives would bring barrels and fill them with parched grains and nuts, and break them before children. And the children would gather them up and say, “So and so has been cut off from his patrimony”. And when he bought it back (literally: returned it), they would do likewise and say, “So and so has returned to his patrimony”. Said R. Jose b. R. Bun (=Avin, flor. Palestine during the later fourth century): So also when a man took a wife who was not suitable…etc.” This custom, which was in practice till the destruction of the Second Temple (70 C.E.) and was well known to the Tannaim (see Gulak, Le-Heker supra n. 21 at pp. 41–42), demonstrates the strong family attachment to their holding. The sale of such a holding outside the family group was seen as a severe affront to the family's dignity and pride. However, in Ruth Rabba 7.11, this text is brought with a slight but significant variations: “Said R. Jose b. Avin: Whosoever sold his field to a non-Jew, his relatives … etc.” According to this version the severity of the deed lay in the fact that the sale was to a non-Jew. Here the statement is in the name of R. Jose b. Avin, whereas in the (original) Yerushalmi text his is merely the addition concerning the unsuitable marriage. Apparently, by R. Jose b. Avin's time, later fourth century, the sale of patrimonies was so common that it would have been difficult for his audience—this version appears in a homiletic rather than legal academic context—to appreciate the gravity of the act. During his time the burning topical issue was the sale of Jewish land to non-Jews. See Sperber, D., “The Transfer of Property from Jew to non-Jew in Amoraic Palestine” (1973) Dinei Israel (about to be published).Google Scholar In order to express his stern condemnation of such acts and to deter his public from them R. Jose b. Avin adapted this earlier text accordingly.

30 Herzog, I., The Main Institutions of Jewish Law, Vol. 1, pp. 115–17Google Scholar, deals with this same problem, but from a slightly differing point of departure. He finds it surprising that in the first place land should ever have been excluded from the law of ona'ah, and that only so late it should have been finally included. He argues that originally “it was not applied to karka' [land] either because there was not a more or less standardized market price for land, or because a transaction in land is generally preceded by considerable negotiation and deliberation and the parties could both have a fair idea of the value at the conclusion of the bargain, and it was therefore their own look-out. [Much as in Roman law, Cod. Theod. 3.1.1., etc., cited in note 1.] At a later date when the sale and purchase of land owing to economic changes became liable to standardization in price and when, owing to altered conditions, commercial and otherwise, bargains in land often came to be transacted rather quickly, the authorities, while reluctant to place karka' altogether on the same level as metaltelin [movables], extended ona'ah to apply to karka' when the overcharging or undercharging was enormous—if it exceeded one-half of the true value”. Contra Dickstein's view. Reasonable though this explanation sounds, on closer analysis it becomes less convincing. Prices were standardized centuries before R. Johanan's time. If the speed with which bargains in land came to be transacted increased, this was, no doubt, a general phenomenon which should have affected Roman as well as Jewish law. Yet apparently it did not. (See Cod. Theod. 3.1.4, 383: “…later should he claim in opposition that he received a smaller price than the property was worth, because he says he was ignorant of the value of the land which he sold, since it was located at a distance, the sale cannot be revoked for that reason. For a person of full age could have known what sort of thing he sold or at what price the thing to be sold could be valued”. Translation, C. Pharr, Princeton, 1952, p. 64). And where Roman law does seem to react, in the rescripts of Diocletian discussed below, it is to protect the seller alone from underselling. See also Melamed's suggestion, op. cit. supra n. 1 at 54.

31 These two rescripts, which go under the (later) title of the law of laesio enormis, are the subject of very considerable controversy among Roman legal historians. The controversy may be categorized into two main schools: (a) those who regard the rescripts as genuine, and from Diocletian's time, and (b) those who regard the law as late, of Justinian's time, and the rescripts as (complete or part) interpolations. The main protagonists of the latter “interpolationist” school are Gradenwitz, , (Interpolationen in den Pandekten (Weidmann, Berlin, 1887) 62Google Scholar and “Interpolazioni e Interpretazioni” (1899) Bolletino del' Istituto del Diritto Romano 3–15 hereinafter BIDR); Thomasius, , ((1921) 31 BIDR 51–87Google Scholar), followed by Albertario, E., (“Justum Pretium e Justa Aestimatio” (1921) 31 BIDR 1Google Scholaret seq., republished in (1936) 3 Studi di Diritto Romano 403–24, opening note); Partsch, , ((1921) 42 Zeitschrift der Savigny—Stiftung Für Rechtgeschichte Romanistische Abteilung 265 n. 1 )Google Scholar; Solazzi, S., ((1921) 31 BIDR 51–87Google Scholar, republished as “L'origine storica della rescissione per 'laesio enormis”, in Scritti di Diritto Romano Vol. 2 (Napoli, 1957) 353–81); Dekkers, R., (La Lésion Enorme (Paris, 1937) )Google Scholar; Volterra, C., (Diritto Romano e Diritti Orientali (Bologna, 1937) 254–56)Google Scholar; Taubenschlag, R., (Opera Minora Vol. 1 (Warsaw, 1951) 174)Google Scholar; Zulueta, R. de, (The Roman Law of Sale (Oxford, 1945) 19–20)Google Scholar; Perozzi, S., (Instituzione de Diritto Romano Vol. 2 (Milan, 1947 ) 276 n. 1 )Google Scholar; Arangio-Ruiz, V. (Instituzioni di Diritto Privato Romano (Roma, 1961) 501)Google Scholar; see also Carelli, E. (“C. 2.36.1 e 3 e l'origine della rescissione per ‘laesio enormis’” (1937) 3 Studia et Documenta Históriáé et Iuris 446–52Google Scholarcontra Albertario). On the other hand, the conservative “anti-interpolationist” school is represented by Monnier, H., ((1900) 24 Nouvelle Revue Historique de Droit Français et Etranger 181–85Google Scholar and “La lésion de plus de moitié dans le vente” in his series “Etudes de Droit Byzantin” ibid. 1895–1900); Monier, R. (Manuel élémentaire de droit romain (5th ed., 1954) 140)Google Scholar; Landucci, L., ((1915–1916) 75 Atti de Instituto Veneto 1189–1255Google Scholar attacked by Andrich, L. in (1919) 73 Giur 3Google Scholar, and most recently by Visky, Karoly, “Appunti sulla origine della lésion enorme” (1961) 12 IURA 40–64Google Scholar agreeing with Monnier, Landucci and also Novitzki).

There is a vast bibliography on the subject which goes far beyond the scope of this study. Briefly, the “interpolationists” claim that this must be a late law, since it is ignored or unknown by a number of post-Diocletion constitutions (Cod. Theod. 3.1.1, of 319, 4 of 383, 7 of 396), (e.g., Zulueta). It is totally alien to basic concepts of “free trade”in classical Roman law (e.g. Dig. 19.2.22.3; 4.4.16.4) (but see Carelli, above, contra Albertario). Hence, it must be a late law, the concept of iustum pretium being the result of Christian influence (Albertario), or that the practical conditions of the later Empire forced jurists to modify Roman law in accordance with Aristotelian economic theory (Partsch). The “traditionalists”, on the other hand, explain that the exceptional circumstances in Diocletian's time forced him—a great legal innovator—to introduce these truly alien rescripts, which were later not used but were ignored, because the exceptional situation (where land was being forced out of the hands of the “faibles” by the “puissants”) later did not obtain and the reasoning underlying the rescripts was not understood (Monnier), or that since Diocletian was dealing with especially hard cases in an exceptional manner, his constitutions were never regarded as embodying a principle of general application, until Justinian gave them statutory sanction by admitting them into his Code: (See Mackintosh's, very balanced discussion in The Roman Law of Sale (1907) Vol. 2 pp. 217–19Google Scholar and Moyle, J. B., The Contract of Sale in Civil Law (Oxford, 1892) 180–88Google Scholar). Monnier's view was accepted by the great French social and economic historian, Lot, F., The End of the Ancient World and the Beginnings of the Middle Ages (New York, 1961) 133Google Scholar (though Lot's formulation there is somewhat inaccurate). See finally Jolowicz's, H. F. penetrating study, “Origin of Laesio Enormis” (1937) 44 Juridical Revue 53–72.Google Scholar

On contemporary “anti-interpolationist” trends in Roman legal scholarship, see Kaser, “Zum heutigen Stand der Interpolazionenforschung”, SZ 69, 1952, pp. 60 ff, and, most recently, Dioski, Gyordy, “P. Oxy. 2102 and PSI 1182”, American Studies in Papyrology, 7 (Proceedings of the Twelfth International Congress of Papyrology), ed. Samuel, D. H., Toronto 1970.Google Scholar

32 (Cf. Cod. Iust. 4.44.1.) There is some difference of opinion as to whether this constitution applies to all things (res), (Poste's view), or merely to land. See Moyle, J.B., Imperatoris Iustiniani Institutiones (Oxford, 5th ed., 1949) 438Google Scholar; Zulueta, , The Roman Law of Sale (Oxford, 1951) 19.Google Scholar The latter view is the more generally accepted one. “There is no textual authority for extending it to sales of other things than land or for applying an analogous principle in favour of the buyer…” (Zulueta, ibid. See also Mackintosh's, discussion in The Roman Law of Sale (1907) Vol. 2, pp. 217–19Google Scholar).

33 On sale under coercion in Palestinian law, see Zuri, op. cit. supra n. 1 at pp. 116–9, and cf. Gulak, A., Yesod ha-Mishpat ha-Ivri, I (Berlin, 1922), p. 80, note 12.Google Scholar

34 Dickstein, especially pp. 33, 47–48. Followed by Cohen, Boaz, Jewish and Roman Law (New York, 1966), p. 99Google Scholar (and Zuri, , Ha-’Ir’urim pp. 103–4Google Scholar). In note 190 ibid., he refers to Volterra (supra n. 31), who, however, speaks of oriental rather than Jewish influence. Since Volterra belongs to the “interpolationist” school (supra n. 31), he secs the influence as later, coming via Christianity. See also Jolowicz, (1942) 49 Juridical Review 72Google Scholar, who accepts the Jewish influence, but, carefully adds “the pressure is really popular not only eastern”.

35 See Baron, , A Social and Religious History of the Jews (New York, 1952) Vol. 2, p. 415Google Scholar, note 32, who takes an extreme stand against Dickstein's suggestion. “This (that R. Johanan's formulation should have influenced Diocletian's decrees) is unlikely. Apart from the improbability of such an almost instantaneous emulation, there are overt differences in the amount of overcharge (100 versus 16.66 percent), Diocletian's main emphasis on land sales specially exempted in Talmudic law, and his desire to protect the seller rather than the purchaser. Once more we should see here unrelated, if similar, attempts to deal with essentially the same problems.” Baron's “refutations” are of no moment. (Apparently he did not actually read Dickstein's article.) With regard to land, which R. Johanan specially brought out of the exemption of Talmudic law, there is no rule of 16.66 percent, only “excessive overreaching”, one-third overreaching, or a half (or double) the price. All these are extremely close to Diocletian's “more than half‘. Jewish law, just as Diocletian's decrees, protected the seller. The “emulation” was not “almost instantaneous”, but there may have been as much as a quarter of a century between them. It is most unlikely that the “similar attempts” were wholly “unrelated”. There were close cultural contacts between Diocletian and the East. He was a legal innovator who drew widely and freely on disparate sources and ideas. He visited Palestine (in 276, 297–8). Jews and non-Jews had some knowledge of each others' systems of law. (See, for example, Lieberman, S., Biblical and other Studies, ed. Altman, A. (Studies and Texts, Cambridge, Mass., 1963) Vol. 1, pp. 132–5Google Scholar, for Palestinian-Jewish knowledge of Roman law. As to Roman knowledge of Jewish law, it should be noted that current scholarly opinion tends to view the problematic Collatio Legum Mosaicarum et Romanarum as a Roman-Jewish compilation of between 294 and 313. See Rabello's, A. M. brief survey of the different views in Encyclopaedia Judaica (Jesalem, 1971) Vol. 5, pp. 734–35Google Scholar, with a bibliography. See also Baron, ibid., p. 431, note 11. See also Rabinowitz, J. J., Jewish Law: Its Influence on the Development of Legal Institutions (New York, 1956), pp. 172–73Google Scholar, note 18, for possible Jewish influence upon C. 18.16 (17), 7 of 315. See further the very significant and, for our purposes, very suggestive remarks of Yaron, R., in his article “Reichsrecht, Volksrecht and Talmud” (1964) 3/11 RIDA 281–98Google Scholar, dealing mainly with the period of Diocletian.) The real differences between R. Johanan's ona'ah for immovables and Roman laesio enormis, which Baron does not mention, are that in Jewish law the choice as to whether to annul the transaction or make good the difference lies with the injured party, and in the case of underselling with the vendor, while in Diocletian's rescripts the choice is the buyer's. Secondly, in R. Johanan's ruling an underselling of one-half (something worth two hundred for one hundred) already caused the transaction to be void, while in Diocletian's rescripts the difference must be more than a half. Finally, Diocletian's rescripts only apply to protecting the vendor from underselling, and not to protecting the purchaser from overcharging (see Zulueta, cited supra n. 31). These differences, to be truly appreciated, must be seen in the complete contexts of Jewish and Roman laws of sale. These variations result from the differing premises in the two systems. However, given these different frameworks, the detailed laws of ona'ah and laesio enormis are very similar. On the relationships between Jewish and Roman law, and the possible influences of the former upon the latter, see Cohen, Boaz, Jewish and Roman Law (New York, 1966), especially pp. 1–30Google Scholar; also Rabinowitz, ibid., pp. 1–16, 164–8. On the problem of parallelism as a result of parallel development or as evidence of borrowing, see Albeck, S., in (1957) 26 Tarbiz 284–5 note 57Google Scholar, and Falk, Z., in (1967) 37 Tarbiz 47Google Scholar, and most recently Jackson, B. (1972) 3/18 RIDA 25–26Google Scholar, note 2, in an article entitled “Foreign Influence in the Early Jewish Law of Theft”, pp. 25–42. As to the channels of legal influence during this period, see Zuri, , Ha'Ir'urim, p. 103.Google Scholar

36 Jolowicz, see supra n. 31, ad fin.

37 See the edition of E.R. Gardner, appended to vol. 5 of Frank's, TenneyAn Economic Survey of Ancient Rome (Baltimore, 1940)Google Scholar, especially the preamble. On the relationship between this edict and the two rescripts, see Visky (1961) 12 IURA 49. It may also be argued that land prices were not included, since they cannot be easily standardized, their variations being so great. However, merely a series of maximum prices could have been worked out for land of varying qualities and uses. (Compare Diocletian's introduction of the iugum unit for taxation purposes.) It should, of course, be borne in mind that not all the edict survives. However, had the land prices been included, we would have expected to find them within the surviving parts of the Edict, near the fruits and vegetables sections. It should further be noted that the prices of slaves (which, no doubt, also varied considerably) do not appear in the Edict, though one might have expected them to appear near the wages section (see supra n. 16). On the other hand, prices of livestock also do not appear. Until it is known what criteria determined which commodities were given maximum prices and which not, such arguments ex silentio cannot be truly convincing. On this last problem see the very revealing study of West, L.C., “Notes on Diocletian's Edict” (1939) 34, Classical Philology 239–45.CrossRefGoogle Scholar