Originally published in Journal of Jewish Studies 35:2.
Bernard S. Jackson (ed.), The Jewish Law Annual, Vol. III, Brill, Leiden, 1980, viii, 257 pp. F1.108.
Volume IV of the by now very well-established Jewish Law Annual has appeared, making the present review of Volume III much belated. This volume is the first to be devoted (in Part I) to a symposium on a legal topic-that of “unjust enrichment”, i.e. where A enjoys a benefit from something belonging to B without B suffering any loss. Is A obliged to make payment to B for the benefit A has received? The basic legal problem is why, in the case of A enjoying benefit from B where B does suffer a loss, does the law demand that A should pay for his benefit? Is it because A has gained, and it is right that payment be made for gain, or is it because B has suffered loss, and it is right for A to compensate B for the loss? If the former, then in a case of “unjust enrichment” A is obliged to pay. But if the latter, then there is no obligation to pay since B has suffered no loss. The locus classicus for the problem is tractate Bava Qamma 20a-21a where it is discussed whether A, who has lived rent-free in property belonging to B, the property being vacant at the time not because B has the intention of finding a lessee (if that were the case B would have suffered a loss) but because B is indifferent to renting out the property, has to pay rent. The participants in the symposium approach the matter from various angles, the dogmatic, analytical, historical and comparative.
The contribution by Norman Solomon should especially be noted for its novelty. In this, and in other essays, Solomon calls attention to the work of the Analytical School as taught in the Lithuanian Yeshivot. The members of this school subject the legal discussions in the Talmud and Codes to acute, logical analysis, and while their approach is hardly “scientific”—historical considerations, for example, are largely ignored—yet these methods frequently provide an insight into the real meaning of the debates and discussions. At present, it usually happens to be the case that the scholarly world ignores the achievements of the Yeshiva world and the Yeshiva world returns the compliment. The appearance of Solomon’s essay in the Jewish Law Annual (as well as his studies in the same vein in Dine Yisrael) gives the lie to the contention that “never the twain shall meet”. Solomon surmises that Western analytical methods may have penetrated into the Yeshivot through some of the more widely-read students. Whatever the cause, it does appear that these methods were a kind of counter-blast to the Haskalah which made great inroads into the 19th century Lithuanian Yeshivot. It is notorious that Talmudists of the old school looked askance at these new methods considering them to be a foreign importation. The fiery Talmudist, Rabbi Jacob David Willowski (1845-1913) was fond of denigrating the new methods, in which legal concepts were broken up into their component parts, by referring to them as “chemistry” (see Abraham J. Karp in Perspectives on Jews and Judaism: Essays in Honor of Wolfe Kelman, New York, 1978, pp. 215-237).
Part II of the Annual contains the usual surveys, digests of Rabbinic Responsa, bibliographies on Jewish law and other helpful material for the student of this branch of Jewish learning.