The Shetar’s Effect on English Law

The Shetar’s Effect on English Law

ENGLISH LAW, like the English language, is an amalgam of diverse cultural influences. The legal system may fairly be seen as a composite of discrete elements from disparate sources. After the conquest of 1066, the Normans imposed on the English an efficiently organized social system that crowded out many Anglo-Saxon traditions.[2] The Jews, whom the Normans brought to England,[3] in their turn contributed to the changing English society. The Jews brought a refined system of commercial law: their own form of commerce and a system of rules to facilitate and govern it. These rules made their way into the developing structure of English law.

Several elements of historical Jewish legal practice have been integrated into the English legal system.[4] Notable among these is the written credit agreement—shetar, or starr, as it appears in English documents. The basis of the shetar, or “Jewish Gage,” was a lien on all property (including realty)[5] that has been traced as a source of the modern mortgage[.6] Under Jewish law, the shetar permitted a creditor to proceed against all the goods and land of the defaulting debtor.[7] Both “movable and immovable” property were subject to distraint.[8]

In contrast, the obligation of knight service under Anglo-Norman law barred a land transfer that would have imposed a new tenant (and therefore a different knight owing service) upon the lord.[9] The dominance of personal feudal loyalties equally forbade the attachment of land in satisfaction of a debt; only the debtor’s chattels could be seized.[10] These rules kept feudal obligations intact, assuring that the lord would continue to be served by his own knights. When incorporated into English practice, the notion from Jewish law that debts could be recovered against a loan secured by “all property, movable and immovable” was a weapon of socio-economic change that tore the fabric of feudal society and established the power of liquid wealth in place of land holding.[11]

The Crusades of the twelfth century opened an era of change in feudal England. To obtain funds from Jews, nobles offered their land as collateral.[12] Although the Jews, as aliens, could not hold land in fee simple,[13] they could take security interests of substantial money value[14] That Jews were permitted to hold security interests in land they did not occupy expanded interests in land beyond the traditional tenancies[15] The separation of possessory interest from interest in fee contributed to the decline of the rigid feudal land tenure structure.[16]