The payment order of Antiquity and the Middle Ages a legal history

785 Pages·2011·4.255 MB·English

by  Geva, Benjamin

The PaymenT Order Of anTiquiTy and
The middle ages
examining the legal history of the order to pay money initiating a funds trans-
fer, the author tracks basic principles of modern law to those that governed the
payment order of antiquity and the middle ages. exploring the legal nature of
the payment order and its underpinning in light of contemporary institutions
and payment mechanisms, the book traces the evolution of money, payment
mechanisms and the law that governs them, from developments in ancient
mesopotamia, ancient greece, rome, and greco-roman egypt, through
medieval europe and post-medieval england. doctrine is examined in Jewish,
islamic, roman, common and civil laws.
investigating such diverse legal systems and doctrines at the intersection of
laws governing bank deposits, obligations, the assignment of debts, and nego-
tiable instruments, the author identifies the common denominator for the evolv-
ing legal principles and speculates on possible reciprocity. at the same time he
challenges the idea of ‘law merchant’ as a mercantile creation.
The book provides an account of the evolution of payment law as a distinct
cohesive body of legal doctrine applicable to funds transfers. it shows how prin-
ciples of law developed in tandem with the evolution of banking and in response
to changing circumstances and proposes a redefinition of ‘law merchant’.
The author points to deposit banking and emerging technologies as embody-
ing a great potential for future non-cash payment system growth. however, he
recommends caution in predicting both the future of deposit banking and the
overall impact of technology. at the same time he expresses confidence in the
durability of legal doctrine to continue to evolve and accommodate future pay-
ment system developments.
Hart Monographs in Transnational and International Law: Volume 6
Volume 5 in the series Hart Monographs in Transnational and
International Law
Hart Monographs in Transnational and International Law
series editor: Craig scott, Professor of law, Osgoode hall law school of york
university, Toronto
The objective of this series is to publish high-quality scholarship in public
international law and private international law, as well as work that adopts
‘transnational law’ as its thematic, theoretical or doctrinal focus. The series
strives to be a leading venue for work of the following sort:
* critical reappraisals of foundational concepts and core doctrinal principles
of both public and private international law, and their operation in practice,
including insights drawn from general legal theory;
* analysis and development of conceptions of ‘transnational law’, including in
relation to the role of unofficial law and informal processes in transnational
regulation and in relation to theories and studies of ‘governance’ in trans-
national spheres; and
* empirical studies of the emergence, evolution and transformation of interna-
tional and/or transnational legal orders, including accounts and explanations
of how law is constructed within different communities of interpretation and
practice.
The series will also be home to monographs that explore the interactions
between the ever-integrating fields of public and private international law. Of
special interest are explorations of the extent to which these interactions are
structured by higher-order principles and policies, on the one hand, and by pol-
itics and the exercise of various forms of power, on the other hand.
The series is open to work not only by law scholars but also by scholars from
cognate disciplines.
Titles in this series
Volume 1: Terrorism and the state: rethinking the rules of state responsibility
Tal Becker
Volume 2: Transnational law and local struggles: mining, Communities and
the World Bank
david szablowski
Volume 3: The institutional Veil in Public and international law: international
Organisations and the law of Treaties
Catherine Brölmann
Volume 4: Between governing and governance: On the emergence, function
and form of europe’s Post-national Constellation
Poul Kjaer
Volume 5: rough Consensus and running Code: a Theory of Transnational
Private law
gralf-Peter Calliess and Peer Zumbansen
Volume 6: The Payment Order of antiquity and the middle ages: a legal history
Benjamin geva
The Payment Order of
antiquity and the
middle ages
a legal history
Benjamin geva
llB, hebrew university, Jerusalem
llm, sJd, harvard university
Professor of law
Osgoode hall law school, york university
Toronto, Ontario, Canada
OXFORD AND PORTLAND OREGON
2011
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© Benjamin geva 2011
Benjamin geva has asserted his right under the Copyright, designs and Patents act 1988,
to be identified as the author of this work.
all rights reserved. no part of this publication may be reproduced, stored in a retrieval system, or
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British library Cataloguing in Publication data
data available
isBn: 978-1-84946-052-1
Typeset by hope services, abingdon
Printed and bound in great Britain by
TJ international ltd, Padstow, Cornwall
dedicated to my wife
Esther
for whose encouragement and support
i am obliged

Preface
The book is a product of a prolonged effort over several years. it would not have
come out but for the help and support of some institutions and individuals who
deserve a special mention. While i assume responsibility for each and every
error my gratitude is given particularly to those listed below.
generous funding for the research was provided by the social science and
humanities research Council of Canada (sshrCC) under its standard
research grants Program. funding was also provided by the Osgoode hall law
school through its research fellowship as well as through its standard research
assistance programmes. The max-Planck institute for Comparative and Private
international law, hamburg, germany also provided funding. most of the
work was carried out at Osgoode hall law school of york university in
Toronto. i spent a year on sabbatical working on the project as an adjunct
Professor and Visiting scholar at northwestern university school of law in
Chicago. i also spent one semester working on the project at new york
university school of law as a senior global research fellow at the hauser
global Visitors Program. i spent shorter periods as a visiting researcher at max-
Planck institute for Comparative and Private international law, hamburg,
germany and at Cambridge university in england where i was a Visiting fellow
at fitzwilliams College and Visitor at the faculty of law. i am grateful to these
institutions for the support they provided.
in my research, i used scholarly sources and authoritative texts and
documents. internet sites were visited and are cited particularly for background
facts which are common knowledge but also for sources which are hard to get in
print. Original documents and sources for the research are in english, french,
german, italian, hebrew, greek, latin, aramaic, demotic, Coptic, ancient
languages of mesopotamia, arabic, law french, Judeo-arabic, flemish, dutch,
and possibly also spanish, Portuguese, Ottoman Turk and perhaps other
languages. from those, unfortunately, i read only english, french, hebrew, law
french and some aramaic. Thus i relied only on original and translated
materials and sources in those languages. my familiarity with the characters of
arabic and, to a much lesser extent, greek, alphabets, was of limited assistance
as well. invaluable help in providing unofficial translations of various documents
and sources and other linguistic assistance was given by ricardo Ben-Oliel
(Professor at haifa university, israel), filippo Valguarnera (at the time a global
research fellow in the hauser Program at new york university), francesco
raspini (at the time at the university of Pisa), William roberds (of the federal
reserve Bank of atlanta), mohammad fadel (of university of Toronto faculty
of law), gina alexandris at Osgoode and at the max-Planck institute for
viii Preface
Comparative and international Private law in hamburg. Charles m dobson, at
the time an Osgoode student, assisted both in translation and research. i thank
them all for their invaluable assistance.
Bernard feintuch has been my patient, informative and inspiring guide with
whom i have been learning Talmud in Toronto for more than 20 years. as of my
sabbatical stay in Chicago during 2005–06, invaluable guidance in Jewish law
has also been provided by Kalman Worch. Osgoode students (as each was at his
respective time) elie Zolty, Joseph salmon, Joseph Juda, and david fenig pro-
vided invaluable research assistance in Talmudic law. my gratitude, accompa-
nied with an apology for anything i might have incorrectly learned, is given to
each one of them.
invaluable research assistance for various parts of the manuscript, at different
stages of the work, was also provided by Osgoode students (as they were at the
respective times) muharem Kianieff, michael rennie and sarah e Templeton.
shameela Chinoy assisted me during the preliminary stages of the research. i
am grateful to them all.
i am obliged to several law librarians who went beyond the call of duty in
assisting me to find, obtain and use the vast amount of research materials required
for the project. special mention was earned by maureen Boyce and her staff at the
interlibrary loan department at Osgoode hall law school, Pegeen g Basset at
northwestern university school of law, and sharon Wang, a reference librarian
at Osgoode. i am also grateful to yemisi dina, nick Pengelley and Tim Knight at
Osgoode, to irene Berkey at northwestern, as well as to david Warrington,
librarian for special Collections at harvard law school.
i am indebted to numerous colleagues who supported me with advice, direc-
tion, encouragement, provision of a good reference, or otherwise. i specifically
mention reinhard Zimmermann of the max-Planck institute for Comparative
and Private international law hamburg, germany, and sir roy goode of
Oxford university in england. Koen Verboven and the late raymond Bogaert,
both of ghent university, Belgium, introduced me to the world of ancient bank-
ing and guided me in researching it. at Cambridge university in england, avihai
shivtiel introduced me to the Cairo Geniza. Åke lönnberg of the international
monetary fund and Charles freedman, formerly of the Bank of Canada and
now of Carlton university, coached me in central banking. all mistakes and
misunderstandings are of course mine. my gratitude is also extended to hal s
scott at harvard, Clayton gillette at new york university, richard hooley at
Cambridge, england, mordechai rabello of hebrew university of Jerusalem in
israel, shalom lerner and amnon altman, both of Bar ilan university in israel,
aldo Petrucci of the university of Pisa in italy, and Oliver remien of the Julius-
maxmillians university of Würzburg, germany. his colleague Jan-Christoph
marschelke, as well as richard stewart of new york university, each provided
me with a forum to present and discuss the project.
my Osgoode colleague Craig scott encouraged me both to apply to sshrCC
for research funding and to submit the manuscript to hart Publishing, Oxford
Preface ix
where i received invaluable support from richard hart himself and his extremely
helpful staff, particularly, rachel Turner, mel hamill, Tom adams and elissa
Connor. laurie Cormack at Osgoode was extremely helpful in providing advice
and help in the preparation of the sshrCC research grant. assistance in
word-processing and formatting of the manuscript was provided at Osgoode by
my administrative assistant, miriam spevack. andrea Battiston assisted me in
the final editing work. i remain obliged to them all.
last but not least, this project would not have seen the light of the day had i
not benefited from the patience, good advice and encouragement of my family,
particularly my wife esther, to whom i dedicate this work.
* * *
as this study is a product of prolonged effort, some parts of the book bear a
resemblance to work previously published by me, albeit possibly in a different
structure. Of particular mention are small parts of two earlier books, Financing
Consumer Sales and Product Defences (Toronto: Carswell, 1984) and Bank
Collections and Payment Transactions (Oxford: Oxford university Press, 2001),
as well as portions of the following articles:
1. ‘equities as to liability on Bills and notes: rights of a holder not in due
Course’ (1980), 5 Canadian Business Law Journal 53.
2. ‘The Concept of Payment mechanism’ (1986), 24 Osgoode Hall Law Journal
1, (reprinted in ross Cranston (ed), Commercial Law 317 (aldershot, hong
Kong, singapore, sydney: dartmouth, 1992), being area 16 of the
international library of essays in law and legal Theory.
3. ‘from Commodity to Currency in ancient history – On Commerce, Tyranny,
and the modern law of money’ (1987), 25 Osgoode Hall Law Journal 115.
4. ‘ The eu Payment services directive: an Outsider’s View’ (2009), 28 Yearbook
of European Law 177, Oxford university Press (eeckhout and Tridimas (eds)).
as well, the following papers, respectively constituting (with some modifica-
tions) chapter four, section 2 of chapter two, and chapter six have been previ-
ously published as part of the ongoing research leading to the publication of
this book:
1. ‘deriving history from law: are Cheques Traceable to the Talmud?’ (2007),
54 Revue Internationale Des Droits de l’Antiquité 27–61 [published at the
end of 2008].
2. ‘The monetary legal Theory under the Talmud’ (2008), 55 Revue
Internationale Des Droits de l’Antiquité 13–38 [published in early 2010].
3. ‘The medieval Hawale: The legal nature of the Suftaj and Other islamic
Payment instruments’, to be published online by the global hauser Program
at new york university school of law.
* * *