Week Three Summary of SBM 2016

This week’s summary is written by Leora Balinsky and Levi Mastrangelo

This week in the SBM our focus was on the halakha of commercial contracts. Specifically, we examined the sugyot in which a party wishes to undo a contract because of unexpected/unintended circumstances and the relevant rishonim thereon. The underlying tension in all of these cases is the desire to have a legal system which allows for the reversal of contracts whose enforcement would have pernicious outcomes without destabilizing the economy by undermining transactional commerce. The following two cases from the Gemara illustrate these competing values:

  1. The Gemara in Bava Batra (קלב ע״א) brings a baraita in which a man’s son goes on a long trip and then the father hears that he’s dead. The father then writes a document designating all of his property to a friend as a gift. Later, the son returns, surprisingly alive. There is a makhloket in the baraita as to whether the friend still receives the property (i.e.–whether the father’s document is still valid). R. Nachman indicates that we poskin like the opinion that invalidates the father’s document on the grounds that, had he known his son was still alive, he would not have promised his property to the friend.
  2. The Gemara in Kiddushin מט: presents a case as follows: A man sells his property with the intention to make aliyah. At the time of the sale, he said nothing about his conditional intent. Rava rules that the sale would stand based on the halakhic principle that he introduces, “דברים שבלב אינם דברים”—unstated thoughts are insignificant.

Much of our time this week was spent fleshing out two of prominent Tosafist Rabbeinu Yitzkhak’s major chiddushim, which, taken together, form a unified theory of contract law with which to navigate the Gemara’s myriad cases.

The first of Rabbeinu Yitzkhak’s chiddushim is brought by tosafot in response to Case B from about (קידושין מט ע״ב ד״ה דברים שבלב) They explain that from the language of the Gemara, it seems that the claim of conditional intent was not effective because it was not expressed explicitly during the transaction, but that in the event that he had stated his intention at the time of the transaction, the transaction would be undone if the conditions were not met. This seems to contradict a Mishnah later in Kiddushin that states that for a conditional statement to hold any weight, one must make a formal conditional claim that makes explicit the converse of one’s claim—e.g. “If X happens, I will do Y. If X does not happen, I will not do Y”—called a double condition (תנאי כפול) How is it then that a simple statement of one’s intention would have been sufficient in Case B?

In response to this problem, Rabbeinu Yizchak posits that we need to make categorical distinctions between three different types of cases:

  1. In which the claimed condition is so peculiar that it can only be substantiated by a formal condition.
  2. In which the claimed condition is sufficiently reasonable that it could be substantiated by circumstantial evidence (e.g. Case B, in which an informal statement was made)
  3. In which the claimed condition was so obvious that it can be substantiated even without circumstantial evidence.

The second chiddush of Rabbeinu Yitzkhak is in establishing the boundaries of the latter category. This chiddush is brought in response to the Gemara in Ketubot (מז ע״ב ד״ה שלא כתב לה), which brings a case in which a woman is divorced or widowed between kiddushin and nissuin. Rebbi Elazar ben Azaria rules that she has no claim to the tosefet ketuba (an optional, negotiated sum of money) because he “only wrote it on condition that the marriage be consummated.” This ruling seems to generate a problematic extrapolation: any person should be able to reverse any transaction in the event of a clearly unpleasant outcome—e.g. “I never would have bought your cow if I had known it would get sick and die within the week”—thus destabilizing transactional commerce. Rabbeinu Yitzkhak solves this problem by introducing risk-benefit analysis: in the cow case, the benefits of owning the cow justify the risk of its untimely death. Contradistinctively, in the Gemara’s case, the benefits of pre-nissuin marriage do not justify the risk of having to pay out the tosefet ketuba. The test for this is whether, had the risk been mentioned at the time of sale, the relevant party would have gone through with the transaction.

One of the key assumptions of Rabbeinu Yitzkhak’s chiddushim is that they are driven by a default assumption that all halakhic commitments function in the same way and can therefore be undone using the same mechanisms. Left unqualified, this assumption would radically destabilize commerce; the Gemara allows people to extricate themselves from a wide array of commitments by claiming unstated conditions. Tosafot (כתובות מז ע״ב ד״ה שלא כתב לה) solves this problem by distinguishing individually contingent commitments—where the economy isn’t put at risk—from transactional commitments.

A fascinating debate emerges between the Maharam miRotenberg and the Ri’az about whether gifts are single-sided or double-sided transactions. The Ri’az (פסקי ריא״ז כתובות פ״יא ד״ה אלמנא ניזונת) takes the position that gifts are single-sided; we don’t care about the intentions of the receiver because he would take the gift under any circumstances. The Maharam miRotenberg, however, contends that the reaction of the receiver is a significant factor in the transaction (חלק ג סימן שטו). He argues that the giver gives the gift in order to improve the disposition of the receiver toward him. Thus, since the receiver would be less pleased if he knew that the gift were conditional, the gift cannot be un-given through an unstated condition.


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