Moses Isserles: Rema

Rema's glosses emended and enhanced the Shulhan Arukh, offering halakhic options for Ashkenazic Jews.

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This basic approach to halakhic decision making had been developed by the spiritual founders of Polish Jewry, Jacob Pollack and Shalom Shakhna, to the extent that they opposed the writing of all codificatory works and would not even preserve copies of their own responsa.

Rema's glosses, in addition to presenting the various opinions and local customs, as well as reflecting his own different criteria for deciding the law, also emend the text of the Shulhan Arukh, particularly where it was clear to Rema that the language of "the author" (mehabber, as Caro is generally referred to in connection with the Shulhan Arukh) had been corrupted by copyists and printers. Sometimes, the glosses interpret and explain the text; at other times, they point out where Caro's rulings are inconsistent.

Enhancements to the Shulhan Arukh

An interesting feature of Rema's glosses is that Rema sometimes added a law, not because it was disputed or because Care did not accept it, but to enhance Shulhan Arukh's comprehensiveness. An example appears at the beginning of Hilkhot Sheluhin [The Laws of Agency] in Shulhan Arukh Hoshen Mishpat.

In order to understand its significance, we first turn to the formulations of this law by Maimonides and the Turim.

Maimonides' Hilkhot Sheluhin ve-Shutafin [Laws of Agency and Partnership] begins as follows:

"If one says to his agent, 'Go and sell land or chattels for me' or 'Buy [land or chattels] for me,' he [the agent] can sell or buy and carry out his agency, and all his acts are effective [to bind the principal]."

In the Turim, however, the formulation is:

"A person's agent is like himself for all matters [and binds the principal], except for the commission of wrongdoing, for the rule is, 'There is no agency for wrongdoing.' Maimonides wrote, "If one says to his agent, 'Go and sell land or chattels for me' or 'Buy [land or chattels] for me,' he [the agent] can sell or buy and carry out his agency, and all his acts are effective."

The Turim thus preceded the concrete example of an agency to sell or buy with a statement of the basic principle of the law of agency that a person's agent is like himself except for an agency to commit wrongdoing, where the applicable principle is: "[When] the words of the teacher and the words of the disciple [conflict] -- which should be obeyed?" In other words, the principal may assume that the agent will obey the words of God (the Teacher), who forbade the commission of the wrong, rather than carry out the words of the principal (the disciple).

In the beginning of Caro's treatment of Hilkhot Sheluhin he omitted the general principle that the Turim supplied and, following Maimonides, began with the concrete case of an agency to sell or buy. Clearly, the omission does not mean that Caro disagreed with the principle; rather, it reflects Caro's policy to be as brief as possible and to follow Maimonides' style.

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Menachem Elon

Justice Menachem Elon has had a long and distinguished career as a legal scholar. He is a retired professor of Jewish Law at the Hebrew University in Jerusalem, and a prolific author on Jewish Law. In 1977 Justice Elon was appointed to the Supreme Court of Israel and served as its Deputy President from 1988 until 1993. He lives in Jerusalem.