Antichresis

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ANTICHRESIS

ANTICHRESIS (ἁντίχρησις) in Greco-Roman law an arrangement whereby a creditor may, under certain conditions, enjoy the use and fruits of property (land or chattels) given to him as security. In talmudic literature, such an arrangement appears under various designations such as mashkanta di-Sura, nakhyata, kiẓuta (see *Loans, *Pledge, *Property, *Usury), while the word antichresis (אנטיכרסיס) itself appears only once in the Talmud (tj bm 6:7, 11a; another passage in tj Git. 4:6, 46a has אנטריס which might be a corruption of antichresis (אנטיכרסיס) – see Epstein, in: Tarbiz, 8 (1937), 316–8). In Greco-Roman sources too, though antichretic transactions must have been widespread, the word antichresis appears only rarely, and it is difficult to ascertain its exact meaning. The glossator Cujacius (Observations 3:35) restricts the term to an arrangement whereby the usufruct is in lieu of interest (in vicem usurarum). A. Manigk, rejecting this narrow definition, argues that in Roman, Assyro-Babylonian, Greco-Egyptian, Syrian, and other laws, arrangements whereby usufruct was granted in partial or total amortization of the principal debt were also included in antichresis: hence Manigk speaks of "amortization-antichresis" as distinct from "interest-antichresis" (F. Stier-Somlo and A. Elster (eds.), Handwoerterbuch der Rechtswissenschaft, 1 (1926), s.v.). By allowing a token deduction from a principal debt, actual interest-antichresis can be made to appear as amortization-antichresis (which is what mashkanta di-Sura or nakhyata really were). This was a means of evading the prohibition of usury. It is thus difficult to say whether the terse statement in the Talmud, which explicitly denounces antichresis as usury, refers to pure interest-antichresis or also to amortization-antichresis of the fictitious kind. The Mishnah discussing it deals with loans on pledge and quotes a saying of Abba Saul allowing amortization-antichresis under certain circumstances ("a poor man's pledge").

In Christian countries in the Middle Ages, when all interest on loans was forbidden, antichresis was linked with the evasion of usury (see C.F. Glueck, Ausfuerliche Erlaeuterung der Pandecten, 14 (1813), 47 ff.). Economically justified interest rates having become permissible, the significance of antichresis faded away and is not found in modern legislation.

bibliography:

A. Gulak, Toledot ha-Mishpat be-Yisra'el bi-Tekufat ha-Talmud, 1 (1939); Ha-Ḥiyyuv ve-Shi'bbudav, 72, 76, 80, 121, 152; B. Cohen, in: Alexander Marx Jubilee Volume (1950), 179–202, reprinted in his Jewish and Roman Law, 2 (1966), 433–56, addenda 784–5; Ehrman, in: Sinai, 54 (1963/64), 177–84.

[Arnost Zvi Ehrman]

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Antichresis

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