Pagina-afbeeldingen
PDF
ePub

may

behind a long series of intervening occur | distinctness in the two cases. Our men. rences, and not seen as simultaneous or tal development is not only a process of closely connected in the order of succes. retention of the old, it is a process of dission with other events known to be at a placement of the old by the new. The particular distance. A curious instance more interesting or the more exciting the of this illusory effect was supplied not new, the more rapidly does the old tend long since, by the case of the ex-detec- to disappear. Hence the apparent extives, the expiration of whose term of trusion of a recollection by supervening punishment (three years) served as an oc- experiences of unusual impressiveness. casion for the newspapers to recall the Even dream-consciousness seems capable event of their trial and conviction. The of effecting this result, for the incidents news that three years had elapsed since of the preceding evening often appear to this well-remembered occurrence proved be dimmed and thrust further away

after very startling to ourselves, and to a num- a night of exciting dreams. To young ber of our friends, all of us agreeing that children events a year old look much the event did not seem to be at more than further off than to adults, just because a third of its real distance. The news the interval, full of novel impressions papers themselves commented on the from its young world, appears to swell apparent rapidity of the time, and this out, and because the very impressiveness shows pretty plainly that there was some and fascination of these experiences tend cause at work producing a common illu- to obscure the earlier ones and to banish sion.

them further from the present. It is to be added that even when past Enough has perhaps been said to show events are properly attached to those that how much of uncertainty and of selfprecede and succeed them, fluctuations deception enters into the processes of

arise in the estimation of their dis- memory. This much-esteemed faculty, tance in consequence of variations in the valuable and indispensable though it cercharacter of the intervening spaces. In tainly is, can lay no claim to that absoother words, our sense of distance in time lute infallibility which is sometimes said is influenced by our sense of duration. to belong to it. Our individual recollecAccording to Mr. G. J. Romanes, who tion left to itself is liable to a number of has written a very interesting essay on illusions even with regard to fairly recent our “ Consciousness of Time” (Mind, events, and in the case of remote ones it July 1878), the sense of duration depends may be said to err habitually and union two conditions. Time seems long, formly in a greater or less degree. To either when it is crowded with new and speak plainly, we can never be certain on exciting impressions, as on a summer the ground of our personal recollection tour, or when we are dwelling on the fact alone that a distant event happened of its passing, and so are particularly exactly in the way and at the time that conscious of it, as in waiting for a train. we suppose. Nor does there seem to be It seems short when it is comparatively any simple way by mere reflection on empty of exciting experiences, provided the contents of our memory of distinthat the mind does not dwell on its pas- guishing what kinds of recollection are sage. Thus it appears comparatively likely to be illusory. short when we are, busily employed about How, then, it may be asked, can we our ordinary avocations. Hence it hap- ever be certain that we are faithfully repens that events just preceding a time of calling the actual events of the past? unusual excitement and novel experience Given a fairly good, that is, a cultivated look further off than events separated memory, it may be said that in the case by the same interval of comparatively of very recent events we may feel pretty quiet impressions. Last Sunday's ser- certain that, when the conditions of caremon seems much further away after a ful attention at the time were present, a week in Switzerland than after a week of distinct recollection is substantially corcustomary experience at home. Not only rect. Also it is obvious that with respect does an event appear to take up different to all repeated experiences our memories distances because separated from the afford practically safe guides. When present by seemingly unequal intervals ; memory becomes the basis of general the very fact that the one interval has knowledge, as of the truth that the pain been filled with exciting impressions, of indigestion has followed a too copious the other with comparatively quiet ones, indulgence in rich food, there is little serves to give the mental image of the room for an error of memory properly so event a different degree of vividness and I called. On the other hand, when an

event is not repeated in our experience, immovable possessions differed in but forms a unique link in our personal every respect from those applicable to history, the chances of error increase ordinary transactions in portable commodwith the distance of the event, and here ities. Hence there are two distinct sethe best of us will do well to have resort ries of ordinances in the Talmud : the to a process of verification and, if neces- one having reference to the sale and exsary, of correction. That is to say, we change of personal belongings, in which must look beyond our own internal mental are included cattle and produce, the other states to some external facts. Thus the dealing with the acquisition of land and recollections of our early life may often houses. We shalì first explain the be tested by letters written by ourselves former, for the laws therein comprised or our friends at the time, by diaries and seem the more peculiar and interesting. so on. When there is no unerring ob- In a simple transaction between buyer jective record to be found, we may have and seller payment did not complete a recourse to the less satisfactory method legal bargain, binding, and irrevocable. of comparing our recollections with those The receipt of the purchase-money by the of others. By so doing we may reach a vendor was not, according to Jewish law, rough average recollection which shall at an essential part of the contract. To least be free from any personal error. render a transaction complete and irrevoBut even thus we cannot be sure of elimi- cable, one of three customary legal for. nating all error, since there may be a malities was indispensable : the act known cause of illusion acting on all our minds as meschichah, which consisted in the alike, as, for example, the extraordinary purchaser taking into his own domain or nature of the occurrence, which would possession the thing he bought, if only pretty certainly lead to a common exag- for a moment; that termed messirah, or geration of its magnitude, etc., and since, causing the object or animal to move moreover, this process of comparing rec- away from the seller ; and the hagbahah, ollections affords a fine opportunity for the lifting up of the property acquired by that reading back a present preconception the buyer. The performance of any one into the past to which reference has al- of these three acts was necessary to renready been made.

der the transaction valid; and by any one The result of our inquiry is less alarm- of them, and without any payment or even ing than it looks at first sight. Knowl- agreement to pay, the purchaser bound edge is valuable for action, and error is himself to complete the bargain. chiefly hurtful in so far as it misdirects The act was always performed at the conduct. Now, in a general way, we do request of the vendor, who thus renounced not need to act upon a recollection of his rights of ownership and possession. remote single events; our conduct is suf- The meschichah could not be performed ficiently shaped by an accurate recol- in a public street: for in a place common lection of recent single events, together to all the buyer was not considered able with those bundles of recollections of re- to convey to himself and into his own docurring events and sequences of events main the thing sold. The messirah, on which constitute our knowledge of our the other hand, could only take place in a selves and our common knowledge of public street or in a locality which be. the world about us. Nature has done longed to neither the buyer nor the seller. commendably well in endowing us with The hagbahah rendered the transaction the means of cultivating our memories up valid and irrevocable at all times and in all to this point, and we ought not to blame places. One of these three acts was, of her for not giving us powers which would course, practicable in every case. If, for only very rarely prove of any appreciable example, a movable article was bought, it practical service to us.

J. S. was merely necessary for the purchaser

to perform the hagbahah by raising the object, if not too heavy for this purpose. Wherever this was done it clenched the

bargain. If the commodity in question From The Pall Mall Gazette.

was too heavy to lift, and was situated in THE CIVIL CODE OF THE JEWS. the vendor's warehouse, it was only necThe sale and purchase of every descrip- essary to push it outside for a moment tion of property, movable and immovable, if the thing sold was taken to the buyer's was regulated by some very curious en premises, it had of course only to be lef actments. In the first place the laws there in order to satisfy formalities. If affecting the transfer of real estate - i.e. I again, the transaction was in live stock

ment

disposed of in the public market, the pur- quently. According to law, then, it was chase of the animal was completed if the ordained that where the thing sold was buyer, at the request of the owner, per- at a distance, so that the meschichah or formed the messirah, simply touching the other formality could not be observed, a beast in a manner to be seen by any spec- simple exchange was effected.

The tators who happened to be present. In money was paid as agreed upon, and the the case of a sheep or like small animal a buyer gave to the vendor some token of blow with a staff forcible enough to cause his having acquired an irrevocable right it to move a pace or two constituted the to the property sold. messirah.

Noteworthy, too, are the circumstances If the vendor received the money value under which a sale, notwithstanding that of the commodities which he offered for all legal formalities had been properly sale, and one of the three legally indispen- complied with, could be annulled." To sable acts meschichah or messirah or make these understood, it must be hagbahah - was not performed, the agree-pointed out that in Palestine the price of was revocable.

The intending all ordinary commodities was fixed by buyer could demand the return of his officers appointed for the purpose in money, or the vendor could decline to every town and district. The cost of all deliver the goods to the purchaser and prime necessaries and of most articles in force the latter to receive again the general use was readily ascertained. If a amount paid for them. But not without sale had been effected, and an error was penalty. A statement of the circum- subsequently found to have been made in stances could be made by the aggrieved the amount charged for the goods delivparty in the local court of justice. The ered, the law enacted as follows: If the presiding judge then addressed the per- mistake affected a sum equivalent to less son who had withdrawn from his engage than one-sixth of the entire purchasement, saying: “He who punished those money, the transaction held good : whethwho lived when the food was sent to del- er the buyer or the seller was the loser uge the earth, and chastised the genera- there was no remedy. If, however, the tion who were in existence when the vendor had charged one-sixth more than languages were confused at Babel, will the commodity was actually worth, or the also punish him who fails to keep his purchaser had paid one-sixth less than word. This admonition was known as the current rate, the law considered that a the mi schepara, from the two Hebrew species of fraud — ondah had been words with which it commenced. It practised; and the party prejudiced could branded as dishonorable whomsoever in- claim the one-sixth difference. But the curred the censure; and, as in the case transaction could not be declared invalid. of those who acted inequitably and were If, however, the error amounted to more declared “acquitted by the judgment of than one-sixth of the price charged and man but guilty before Heaven," the stig: paid, there was what the Hebrew legists ma was calculated to prove salutary and term bitul mekah : the privilege of annuldeterrent.

ling the sale was accorded to both parties. Of course, in a number of transactions The party who incurred a loss by the barof buying and selling, the regulations of gain could annul it: the other could not the civil code as to the meschichah or invalidate the sale if the injured person messirah or lagbahah would have proved preferred it to hold good, and was willing extremely inconvenient. Take, for in- to forego payment of the sixth of what he stance, the case of a farmer who wished had paid.

This course

a purchaser to sell an ox that was grazing some miles would of course prefer where a consideraoff. In all such cases an expedient in ble rise had taken place in the market accordance with a very ancient custom price of the commodity he had bought. was adopted. It was an old practice Where, however, the sixth in dispute was among the Jews a relic, probably, of claimed, the demand could be resisted; the days of simple barter that a vendor and the whole transaction was rendered received from an intending purchaser a void. All sales wherein the goods were shoe as earnest of the bargain. This found deficient in weight or quantity or rendered the transfer legal and valid. measure, or not as specified by the dealer Boaz gave a shoe to Ruth's nearest of kin in description and quality, were voidable tvhen he acquired the rights and privi- ab initio. The principle caveat emptor leges of the kinsman. In later times, for was unknown to Hebrew jurists. In convenience sake, other things were used every case where a buyer sought to annul for the purpose – a mantle very fre-l a bargain, it had to be done on the same

a

day that it was entered on. The vendor, the money was paid, sufficed to establish however, could claim compensation when the soundness of the title, if, at any subhe had incurred a loss within any reason- sequent date, its validity was disputed. able time afterwards. The reason for Of course the record of the sale itself allowing the dealer an advantage in this would have been equally conclusive. It respect was simple. The buyer could de- was not customary among the Jews to tect his error immediately on arriving at hand down title-deeds from father to son. his home; the merchant, his goods being In fact, such documents as we at present sold, might not discover his mistake and understand them seem to have been unconsequent loss for some days, or until known among the Hebrews. Hence, in making up his accounts. It is curious to many cases where no purchase-money notice that the Talmud forbids persons was paid there would practically be no going about among merchants and dealers proof of title. This would happen when. and inquiring prices, as though they in ever an estate was acquired by inberit. tended to become buyers, when in reality ance or by gift or whenever properties they have no such intention.

were exchanged. In all such cases, howThe foregoing laws have no reference ever. definite and inalienable title was to transactions in immovable property, acquired by the hazakah or taking of land and houses, or slaves or legal docu- possession. In the presence of witnesses ments. The sale of land and houses was the new owner commenced some useful valid and irrevocable (1) upon payment of work on the estate he inherited or re. the whole or, under specified conditions, ceived; he dug a trench or a tank, raised of part of the purchase-money; (2) upon a fence or a boundary wall. In the case acquiring the deed of transfer or title of a house he made a new lintel or a new deeds of the property; (3) by hazakan. door. Any work of a similar kind undertaking possession of the land: 1.c. per- taken in the presence of neighbors who forming some useful work upon it. could subsequently testify to the fact

The laws of hazakalı -prescriptive would suffice. This constituted the haright by virtue of possession, or, as it zakah of acquisition; and was equivalent might nowadays be termed, de facto own- to a public notification that the property ership – had reference among the Jews had finally passed into the possession of to the holding of real estate only, land the new proprietor. and tenements and slaves. They were of Undisputed possession of any immovconsiderable importance in the Hebrew able property for a continuous period of code. Just as the laws of nezakim, or three years constituted the hazakah that damage, determined the conditions under conferred an inalienable right upon the which injury and loss were held to have owner de facto. After that no claimant, been incurred, so the laws of hazakal however just his original pretensions, regulated the prescriptive rights pos- could oust him from the tenement. But sessed by private persons under specified to prevent abuse the validity of the hazacircumstances. The Mischna takes cog- kah was made dependent upon a number nizance of three distinct and different of well-considered provisions. For the forms of hazakah - hazakah as evidence purposes of this ordinance Palestine was of acquisition, hazakah as proof of owner- considered as being divided into three ship, and hazakah as evidence of custom districts — Judea, Perea, and Galilee.

Now, if any person took possession of a The transfer and sale of land and im- field or house in one of these territories movable property were not, for obvious while the rightful owner was absent in reasons, subject to the curious enactments either of the other two, the hazakah was regulating ordinary transactions in porta invalid: the prescriptive right could not ble commodities or personal chattels. at any time or after any interval be urged Payment to the vendor of the purchase. against the equitable claim of the rightful money agreed upon, or the delivery of proprietor. Possession also must have the kinyan deed of transfer - to the been continuous throughout the whole buyer completed a transaction in real term. For fields, houses, and granaries, estate. Whatever the terms agreed to for wine or oil presses, for baths and by the respective parties, whatever the tanks, for slaves, and for fields artificially conditions upon which the business was irrigated or watered by springs, the period arranged, the bargain was valid in law. of possession was three years complete. The production of the written form of In the case of an ordinary field or meadreceipt, or the evidence of two competent ow nourished by rain only, the last quarwitnesses who had been present when I ter of the first year, the whole of the second, and the first quarter of the third | his claim against the owner de facto. In year sufficed to constitute the requisite point of fact the hazakah alone was rehazakah. The cause of the distinction garded as in itself proving that the person here made was that in the former there in possession had come by the property were generally different species of prod. in a perfectly legal manner. His title uce growing, maturing at intervals during was invariably good. The burden of the year. In the latter there could be proof to the contrary was thrown upon one kind of crop only. Now the posses- the new-comer, who, not being in a differsion required by law had to be complete; ent district, had permitted another person that is to say, the produce had to be gath: to enjoy his property for three years withered, not to be cropped but actually stored out protest. To prevent fraudulent at

or user.

an unmistakable act and indication of tempts to take advantage of the law of proprietorship on the part of the holder. hazakah a few additional precautions were In the case of an irrigated field, this adopted. A husband was not allowed to process, to be complete, would necessa- plead the hazakah of three years as evirily take place at different times, and dence of his having acquired by purchase would thus extend throughout the entire or otherwise a title to any property beyear. The hazakah was therefore fixed longing to his wife; nor a wife in respect at three full years in this instance. But of her husband's possessions. A father in the case of a rain-watered field a crop could not urge this prescriptive right could be gathered during the first three when the property belonged originally to months of the year and during the last his son; nor could the son urge it when three. The first year's occupation was an estate of his father was in question. therefore to all intents and purposes In like manner, workmen employed upon legally complete when the produce of the a field, partners in an undertaking, farmlast quarter was gathered; and the third ers, who of course frequently rented land, year was likewise practically over when and guardians, were, in their respective the fruits of the first quarter were cropped. capacities for the time being not perA three years' period was chosen because mitted to rely upon the hazakah. Where one year was necessary in order that every a field had been let for a period of more one in the neighborhood might become than three years, or where (as was cuscognizant of the transfer or sale which tomary in certain districts) a field had had been effected; one year to enable been mortgaged for a certain number of information to reach any person having a years, the mortgagee received instead of claim to the property in question which repayment the right to work land and haranother had taken possession thereof; vest' the produce during that term, the and a third year to permit of a person rightful owner made a declaration during having a claim to the estate to go to the the third year in the presence of two place wherein it was situated and there witnesses that the field was only let or take proceedings to recover his rights. mortgaged as the case might be. In connection with this it may be here The third form of hazakah was that noted that the purchaser of real property urged in support of prescriptive rights by generally insisted upon a deed of sale, virtue of use and custom. Practice based with whát is known among Hebrew jurists upon tradition was extremely congenial as an acharayoth. This was a clause by to the rabbinical mind: hence even the which the vendor bound himself to indem- maxim laid down in the matter of cerenify the buyer if within the prescribed monial and religious ordinances that. a

three years any person came forward with minhag (custom) overrules a din (or posiE a good title to the property in question. tive law). All rights and privileges en

The mere act of holding a property for joyed by individuals without opposition the period of three years was not suf- on the part of their neighbors for a period ficient to render the hazakah valid. The of three years were deemed inviolable. holder was bound to state how he ac- Rights of way, rights of egress, a window quired the right to enter on the property. opened or the light of a neighbor interHe could not, however, be compelled to fered with for the legal period without produce evidence in proof of his asser- any protest, gave the former an hazakah tions as to the origin of such title. He in either of these respects. The privilege might, it is true, be forced to take the could not, however, be claimed in the oath derabbanan in testimony of the truth following instances : where a person had of his statements; but only in the very been accustomed to keep his cattle in the unlikely event of a claimant having bond courtyard of his neighbor or had kept fide pretensions to the property urging fowls' there; or placed his furnace there

« VorigeDoorgaan »