Irving Agus, Urban Civilization in Pre-Crusade Europe, vols. 1-2 (New York: Yeshiva, 1965), 224-227; 431-432; 499-507

Below is a responsum of the scholars of Rome of the first half of the twelfth century to the scholars of Paris. Note that the responsum deals with a community ordinance promulgated long before the time of the question--i.e., in the pre-crusade period.

Q. A complained that B was offering him sharp competition in his trade. He therefore demanded that, in accordance with the restrictive [community] ordinance against new settlers, B leave town and stop interfering with his trade. He refused to allow B to encroach upon the exclusive inheritance he, A, had been endowed with by his ancestors. Thus [a long time ago] a restrictive decree had been promulgated [by the members of the community] that no one should be permitted to dwell in this town, and within fifteen miles of the town, except those who already dwelt there at the time, and their male children who would be born to them, but not female children. A asserted: "I am a native of this town; but you are a native of another town. I therefore demand that you no longer earn money in this town, but leave it and go away. For although up to now the above-mentioned decree was waived in your favor, and you were permitted to stay, it was done with my consent? in fact I lent you my inheritance and my family possession until now. Now, however, I no longer want you in town, and the full force of the above-mentioned prohibiting decree is upon you .... "A, however, went too far. Instead of terminating his argument at this point, he continued to quote in his favor the talmudic text (Bava Batra 21b) "a person living in a town may restrain a person from another town [from setting up a competitive business in that town]." B failed to answer A's complaints, but immediately pounced on the talmudic proof [denying that it had any relevance to the case]. A heated discussion on talmudic law developed with great force and fury. At one time A's protagonists proclaimed that the validity of the above-mentioned decree was based on the power of a legally constituted court to annul the property-rights of persons (Yevamot. 89b; Gitin 36b). Eventually the quarrel spread and deepened, until the partisans of one side of the quarrel came with ten scrolls of the Law, took an oath on these scrolls and on the 613 commandments and hurled bans and anathemas at the others. The matter even reached the ears of the head of the government.... Unless a decision were sent, very grave consequences might ensue. Note well that the custom [to restrict settlement in a town to the natives of that town] is prevalent throughout the four Kingdoms of France, Lorraine, Burgundy, and Normandy.

A. Peace is most desirable. Men of great scholarship, especially, should refrain from harsh words and from oaths and anathemas, even when justified. Thus the dispute reached the ears of the government, with the usual sad consequences. We further questioned why you addressed yourselves to us regarding a custom not prevalent among us and about which we have no expert knowledge. Moreover, you should have written us the order of the decree of the early settlers and its wording, exactly as it is stated. If you do not have a written copy of the original decree, you should have consulted the old men of the town, as well as the litigants; and should have sent us written statements bearing their signatures. We would then be in a position to discover the truth. Moreover, you wrote us that the custom was prevalent in France, Lorraine, Burgundy, and Normandy? The scholars of these countries, the teachers of Torah to all Israel, they have an obligation to act as judges among you, and the case should have been resolved in accordance with their decision. They cannot all be your relatives and close friends [and thus inelligible to act as judges]! Your arguments too are very lengthy and your facts interwoven with enormous displays of unusual erudition which only confuse matters .... We note that B admits that the rishonim (early, or first, settlers) promulgated a restrictive decree prohibiting everyone, excepting their own descendants, from settling in the town and within fifteen miles of the town. Although, according to A, no provision was included in the original decree allowing the residents to waive that decree in favor of a particular person, the fact that it was occasionally so waived, proves that such a waiver-clause was included in the original decree. Therefore, since the decree was waived in favor of B, even though it was so waived for a specified length of time only, and since B legitimately lived in that town for twelve months, bought there a dwelling place, and did not intend to return to his former residence, the decree is permanently waived in his favor. For R. Akiba ruled (Nedarim 66a): "a vow that is partially annuled is completely annuled ...." As to your statement that a legally constituted court may annul the property-rights of a person, even in cases to which this principle does apply, it is only operative when the court is originally convened for that very purpose; otherwise it cannot affect the rights of persons who were not consulted. Signed: Solomon b. Abraham; Abraham b. Mattathias; Menahem b. Judah.

a) This responsum was probably written at the beginning of the twelfth century. (See Luzzatto, ibid., p. 109;; S. Buber, introduction to Shibbalei haLeket, p. 9; but especially Hasida's mimeographed edition of the second part of the Shibbalei haLeket, p. 113, where R. Solomon b. Abraham quotes in his responsum the commentary of R. Gershom, and not that of Rashi. Thus, the latter's commentary was still new and not widely accepted. This was the case only at the beginning of the twelfth century.) It contains a clear description of a restrictive decree, later known as Herem haYishub, and informs us that it was well known in France, and that it was prevalent in a number of towns of the above-named four sections of France. It is indeed strange that in the entire literature of the tenth and eleventh centuries we do not have a single mention of the Herem haYishub. Not only did not a single reference from the above-mentioned literature survive to our day, but it seems that it was not even available to the scholars of Paris who most certainly must have made a thorough search for an authoritative decision by R. Kalonymus, R. Meshullam, R. Gershom, R. Joseph Tob-Elem, R. Judah haCohen, and others. The dispute was so sharp that each side must have searched dilligently for authoritative precedents. Our responsum is well preserved, but no mention is made of such precedents. Apparently there were very few disputes involving the Herem haYishub, in our period, although our responsum leaves no room for any doubt that it was current in a number of communities. Either competition was not yet very keen, or the community leaders of the early period knew very well the fundamental legal principle on which the Herem haYishub was based.

b) This legal principle is the same as the one underlying the "law of Maarifa," the decree against forestalling, and "general teilkauf." The first Jews who came to settle in a town, a burg, or a village, had to undertake a long and hard educational campaign. They had to educate all the people to the realization that a merchant colony was a source of wealth and a center of progress and prosperity. A new settlement was made liveable through enormous labor and expense. Thus the first settlers created for themselves a property-right in the opportunities for profit-making offered by that settlement.

CXLIX (Mueller II. no. 205)

A responsum of an unidentified scholar whose name was R. Nathan. (cf. RML no. 193 that speaks of a R. Nathan of Africa; cf. also L. Ginzberg, Genoica, vol. I, p. 29f). The responsum was written at the beginning of the eleventh century, perhaps even earlier. Cf. Hoffmann, no. 24.

Q. In our town there are some who own no vineyards, but who buy grapes from the non-Jews and fill storerooms and vats with such fruit. These men are subject to our tax. There are others who hail from Ketzaot Rota (Rouen ?; cf. Mueller's note ad. loc.), who never before participated with us in the payment of our taxes, but who are now settled among us. They married local women and thus acquired real property through their wives, or through purchase. Both the former and the latter residents, however, refuse to help us [in the payment of the present special tax]; but rely on the protection of the overlord.

A. The law (i.e. Jewish law) requires that you appoint three persons who are specialists in taxation matters, and that these appointees levy the tax on each [resident of your town] in exact proportion to his wealth. Whoever possesses land, the value of that land shall be taken into account. Whoever possesses no vineyards and no real property, but has money with which he trades or buys grapes from the nonJews, that money shall be taken into account [and shall be subject to the tax]. These appointees, however, must follow strictly the custom of your place, i.e. the custom of your forefathers, to levy a certain amount on a person who owned one-hundred-gulden-worth of real property, and a certain [different] amount on a person who owned one-hundred-gulden-worth of merchandise. They (the appointees) cannot change the custom of the early settlers [of your town]; for the sages have ruled that a custom has legal validity.

Should the dealers in merchandise claim that the owners of houses or of land have hidden money, [or] that they trade with merchandise the value of which is unknown, in contrast to themselves who deal in merchandise the value of which is well known, the law requires that a ban (herem) be pronounced against anyone who has any hidden assets, such as coins, merchandise, silver, gold, or vessels, [and does not declare them]. In this manner the above-mentioned three appointees, called Messiliers (cf. Mueller's note ad. loc ), will discover the exact value of the assets owned by each individual. The appointees will then levy the tax in proportion to the amount each person will thus admit to own.

Should the above-mentioned residents fail to act in this manner, and should they persist in relying on the protection of the overlord, as they do according to your letter, they would be guilty of actually retaining robbed money in their possession. To them applies the Scriptural verse: "The spoil of the poor is in your houses (Isaiah, 3, 14.)." They are to be compared to those who withhold a hired man's wages or who defer payment of such wages; for such practices are tantamount to actual robbery. Thus it is stated [in the Talmud, Succot, 29b]: "People eventually lose their possessions for committing the following four wrongs: for withholding a hired man's wages, for deferring payment of such wages, for removing the yoke [of taxation] from their own necks and placing it on the necks of their neighbors, and for rude haughtiness which is the worst of all." Nothing, however, is more serious than robbery. Thus, our sages said: "The doom of the generation of the flood was not sealed until they committed robbery (Sanh. 108a)." They also stated: "He who robs a pennyworth from his friend is as guilty as if he took his life, for Scripture states: 'He taketh away the life of the owners thereof.' (B.K. 119a)." Note, therefore, how severe is the punishment for this crime.

 R. Nathan adds: Those who settled among you and own a dwelling place in your place, are free to sell their wine [even to local customers] and you cannot restrain them from doing so.

CLXII (Mueller I, 21-2; Responsa of Rashi, no. 70)

A Responsum of Rashi.

A. Q. Families quarrelled outrageously, showering abuses and vilifications on one another. The community of Cavaillon heard about it and solemnly pronounced the ban against any member of these families who would continue this shameful practice. One of the families, however, anticipated the action by the community of Cavaillon, and before the latter pronounced its ban the members of that family took an oath not to be bound by the ban of that community; after this action they continued to mouth their abuse. Whereupon, A, a member of the other family, arose and reminded the former that one of their ancestors was once polluted by the waters of apostasy (i.e. was baptized). B, a member of the opposing family, then shouted to A: "Hush, and dare not mention! For a ban was pronounced against such talk!" B, however, did not at the time identify the authority who pronounced that ban. Subsequently, it became known that Rabbenu Gershom had proclaimed that anyone mentioning [a person's previous apostasy] should be under the ban. Whereupon a scholar, S, a member of the group hostile to A's family, ruled that A had thus become enmeshed in a ban pronounced by Rabbenu Gershom; he should therefore remain banned in perpetuity, since a scholar of the stature of Rabbenu Gershom who would thus have the authority to lift the latter's ban, was not to be found in our generation. In support of his ruling, scholar S quoted from the Talmud (M.K. I7a) the case of the student about whom evil reports were circulated and who was banned by Rav Judah. After the latter's death, no one dared lift that ban, for the following reason: "A man of the scholarly stature of Rav Judah is not to be found here."

The others (the members of A's family), however, argue that the name of the great teacher had not been mentioned to them as the author of the above-mentioned ban; [therefore, at the time, they had not known whether or not it was authoritative]; that they had never before heard of that town. Furthermore, even if [in spite of these arguments] A were thus banned, after having repented and after having submitted himself [to punishment], there should be some authoritative body, even nowadays, to lift that ban from him. For the abovementioned great scholar certainly did not intend that a culprit be placed under his ban in perpetuity. "They presented many other arguments; and asked for a reply."

A. I have carefully considered (their) [your] arguments. Some of them are cogent, others are irrelevant, and this is my reply:

Should it become established through the testimony of reliable witnesses who are recognized authorities on this restrictive ordinance of the great teacher (R. Gershom), that he enacted this ordinance with greater rigor and strictness than all other anathemas and restrictive measures customarily enacted in the last generations; that in this enactment he used the awesome term shamta; and that he solemnly prohibited to mention the disgrace [of temporary apostasy] not only to the culprits themselves who eventually returned to Judaism, but even to their descendants; and should it further become established that when A and his family were forewarned, the name of the great teacher [as author of the awesome ban] was mentioned to them, we cannot deal lightly with a ban of Rabbenu Gershom, since in our generation there is no scholar of his great eminence, capable to release a person from such a ban. In that case I would agree with scholar S that if the great teacher directly and personally placed the ban on a certain individual, and the latter remained rebellious, and did not humbly supplicate the teacher to be released from such ban [until the demise of the great teacher], that individual would be banned in perpetuity. Moreover, [even if a person were not directly placed under the ban by R. Gershom himself, but] if the great teacher made a significant change in the formula of the ban, and [contrary to the general custom] used the awesome term shamta, in order to endow this particular ban with much greater strictness than the customary ones, A could never be released from the ban. For all the arguments cited by his supporters could be proven groundless.

Thus, the Tannaitic statement: "He who is banned by [the people of] another town is not to be considered banned in his town (MK I6a)," refers only to a case where the person was banned by the people of the other town because he hurled an insult against their dignity. If, however, he was thus banned "in honor of Heaven" (for religious reasons), if he was banned by a student, he is to be considered banned even by the teacher, and most certainly so even by the people of his town. For "there is no wisdom nor understanding nor counsel against the Lord (Proverbs, 21, 30)," the great [authorities] are equal to the small [when defence of religion is involved]. Most certainly [binding on all, is a ban proclaimed "for the honor of Heaven" by] Rabbenu Gershom, the Light of the Exile, from whose teachings we all derive sustenance. Thus, all the sons of the exile in Germany and Kittim (France, Italy etc.) are the students of his students. For in proclaiming this ban, he was certainly motivated by religious reasons. Thus, we were warned on Sinai: "And ye shall not wrong one another (Leviticus, 25, 17),")," which is interpreted in the Talmud to refer to verbal wrongs. "Thus if a person is a repented sinner, one should not say to him that he remember his former deeds; and if a person is a convert, one should not say to him that he remember the practices of his fathers (B.M. 58b).")."

Now we shall consider your claim that they (the other family) heaped abuse upon you, slandered you by calling you "bastards" and other vilifying terms in spite of the fact that the community of Cavaillon had anathematized anyone indulging in this practice. In order to avoid that anathema the members of that family had earlier taken an oath not to be bound by the restrictive ordinance of the community of Cavaillon; and subsequently, relying on a false ruling that the above-mentioned anathema was not binding on them, since "an oath does not become binding whenever one is already bound by an oath to the contrary (Ned. I8a)," the members of that family transgressed that [perfectly legal] restrictive ordinance. Now, therefore, you cited in your favor the talmudic interpretation of the verse, "Thou shalt not curse a ruler of thy people (Exodus 22, 27)" to the effect that this prohibition applied only when that ruler was solely devoted to the promotion of the interests of "thy people" (B.M. 48b), while your opponents were themselves transgressing a restricting ordinance [and therefore were not to be protected by the ban of R. Gershom]. This, your argument, cannot be sustained! For although the sons (of the repentant apostates) committed grave sins, their fathers (the repentant apostates themselves) were not guilty of these sins; and no one was therefore permitted to vilify them after death (lit. "to tell vilifying tales behind their hearse") for repentance reaches to the very throne of Divine Majesty, and even the genuinely righteous do not stand in the place of high honor reserved for repentant sinners .... Indeed it is true that their sons have sinned. Thus they transgressed the Biblical admonition "and ye shall not wrong one another (Leviticus 25, 17)"; and by taking an oath [not to be bound by the ordinance of the community of Cavaillon] they committed a grave sin; for they thus swore to transgress the tenets of Jewish law which enjoined them to obey the command of their elders, when the latter were intent on constructing fences around the Law and building up deterrents. Firstly they deserve flagellation for taking such an oath, and then, also, for transgressing the ordinance of the community [Cavaillon]; which ordinance was indeed binding on them, in spite of their oath to the contrary. For, although the members of that family lived outside the jurisdiction of the community of Cavaillon, since the latter proclaimed its restrictive ban "for the honor of Heaven," that ban was binding on the former. This fact, however, did not permit A to vilify their fathers (the repentant sinners), who were not guilty of the sins committed by their descendants.

As to your argument that the stature of [the leaders of] our generations is diminishing, as [Rav Hisda] said "our ban has the same strictness as the sharp rebuke [by the leaders] of former generations (M.K. 16a)"; and, furthermore, that [while proclaiming a ban] we do not blow "rams' horns" [as they used to do in ancient times]?that argument is not valid. Thus when the maid of Rabbi Judah the Prince proclaimed: "Let that man be anathema," she did not blow "rams' horns." The sages, nevertheless, honored her ban for three years. It is true the honor (i.e. the authority) of the leaders of our generations, is lesser than that of the leaders of the former generations, to the extent that we are under no obligation to consider the power of the ban to be binding for more than thirty days, and that after that number of days we do release a person from the ban. Nevertheless, as to taking lightly the very manner of releasing a person from a ban, a ban proclaimed by any judge who ever functioned in Israel, is considered by us to be as strict and as severe as one proclaimed by the court of Rav Judah (of Pumbedita, M.K. I7a), and cannot be released except by a judicial authority of similar stature as the one who proclaimed it .... The ruling of the Talmud (M.K. I6a): "When [a court of] three [judges] has declared a ban, other three [judges] may raise it," applies only when the latter three are of the same stature as the first three. Thus this ruling does not contradict the one regarding the ban of the court of Rav Judah.

I do, nevertheless, agree with you that as long as the above-mentioned witnesses did not testify to the effect that the great teacher (R. Gershom) indeed changed the common practice, and added special phases of strictness to his ban, such as using the phrase "banned in perpetuity," or the awesome term shamta, we should assume that the righteous man (R. Gershom) did not intend to place his students of future generations in an embarrassing position. For there is always the probability that a person will lose his temper, and, while overcome by anger, transgress the ban of R. Gershom. The latter knew that among the scholars who would lead the generations after his time, there would be no one of great stature similar to his own; and that no one would then have the authority ever to release that erring person from the ban. Since people would not be able, continuously and at all times, to separate themselves from that person, sooner or later they would all be guilty of transgressing the law. Therefore, even if that righteous roan did state: "Anyone who would transgress that prohibition would be an excommunicate," he merely meant that the erring person's friends and neighbors should treat him as an excommunicate in the manner customary to that generation until he beg forgiveness. He meant that the person be ostracized, that he walk barefoot, and submit to flagellation; and then any ten members of the community would be the deputies of R. Gershom to release him from that ban.

Moreover, even if R. Gershom used the awesome term arur, and it is stated in the Talmud (Shebu. 36a) that the term arur contains the combined strictness of a ban, a curse, and an oath; nevertheless, it is an accepted principle (Ned. 30b) that in the laws governing oaths and vows, words and terms used are to be interpreted in accordance with their meaning in common parlance, and in accordance with the intention of the person who swore the oath, or took the vow. For the binding power of a restrictive ordinance, flows exclusively from the authority who promulgated it; therefore, regardless of the terms he used, any strictness not intended by the banning authority is not included in his ban. Thus it has been the practice in recent generations that all those who enact preventive legislation, as "a fence around the Law," to be binding even on future generations, clearly intend that the power to enforce legislation, to punish offenders, and to release them from the accompanying bans, all be vested with the contemporary judges. This custom prevails in all communities. I, therefore, hold that the righteous one (R. Gershom) did not intend personally to anathematize the offender. He merely meant to order the contemporary leaders of any particular generation to impose on an offender the restrictions of a ban until he be sufficiently punished. Similarly when the Tannaim of the Mishnah ruled: "He who slanders a person by calling him 'a slave', shall be an excommunicate (Kid. 28a)", they did not mean personally to excommunicate the slanderer, for a person personally excommunicated by the Tannaim would most certainly remain banned in perpetuity, but rather, that the judges contemporary with the offender punish him by placing him under the ban....

We must, therefore, consider ourselves the deputies of that righteous man (R. Gershom), and release [the repentant culprits from] that ban. This is similar to the case, related in the Talmud (Hullin I8a), of the butcher who failed to have his slaughtering-knife examined by the local scholar; whereupon he was placed under the ban by that scholar. Eventually, when Rav Ashi released the butcher from the ban, the colleague of Rav Ashi asked him: "Do you pay no regard to the local scholar?" To which Rav Ashi answered: "I was merely that scholar's deputy and acted in his behalf." It is this very principle that [the leaders of] the community act upon when they raise bans and rescind restrictive ordinances enacted by [the leaders of] former generations for they act in accordance with the requirements of their day. The case of Rav Judah (M.K. I7a) is not to be compared to our case; for in the former case the man was personally and directly placed under the ban by Rav Judah, and he should have sought absolution from that scholar himself. His case, therefore, was not assigned to be acted upon by the scholars of the future generations. Our restrictive ordinance, on the other hand, did not originate as a ban placed directly and personally [by R. Gershom] on A. It was merely meant as a deterrent of future transgressions; and therefore was meant to be assigned for action to the scholars of future generations.

Moreover, I do recognize the validity of your argument that when A was forewarned of the existence of the ban, he was not told who was the author of that ban. I do not, however, follow you in deriving the law [that to forewarn a person of the existence of a ban is of no consequence, unless he was also told the identity of the author of that ban] from the type of forewarning required of the witnesses to a capital crime; for that requirement is based on a specific Biblical decree. I do derive it from the phraseology, the custom, and the intention of those [authorities] who nowadays enact restrictive ordinances. Thus they (these authorities) do not intend to punish those persons who are innocent and are ignorant of the very existence of the ordinance. They (these authorities) merely anathematize those who know of the restrictive ordinance but contest it. Thus a person who, while being forewarned, was not told the name of the authority who had enacted the restrictive decree, could not have contested that authority's decree, and therefore was not affected by that authority's ban. For a person is not placed under the ban for contempt of an authority, unless he knows the identity of the authority for whose decree he shows contempt. In our case, too, since A showed no disrespect to the honor of the great teacher (R. Gershom), he could not be affected by the ban of that teacher. Moreover, even if we were going to adopt an especially harsh attitude toward A, we could only treat him as a person under an ordinary ban; but we certainly could not treat him as a person under a direct ban of "the greatest authority in the world," when he did not know that that authority was the author of the decree he transgressed. Furthermore, even if A were fully and properly forewarned by B, such forewarning would have had no validity, since it came from A's opponent in whose words A would have put no trust.