Week Five Summary of SBM 2016

This week’s summary is written by Yehuda Gale and Tzipporah Machlah Klapper

This week we learned teshuvot showing how the ideas we were learning were understood throughout the period of the achronim. Minchat Shlomo (Rabbi Shlomo Zalman Auerbach z”l) begins his discussion of unstated conditions from Tosfot Ketubot 47. Tosfot asks why (if some transactions can be undone through unstated conditions = adaata dehakhi) can’t every person who buys a cow and finds it to be a traifa reverse the transaction? Tosfot answers that we know in such cases that the buyer would wish to enter the transaction even if they were not allowed to make such a condition. Minchat Shlomo explains that this is because he entered the transaction aware that the animal might be a traifa, and therefore accepted the risk. He adds that Tosfot isn’t saying that we need to know for certain that he would have been willing to enter the transaction without this condition; even if we were uncertain of his intentions, we would not reverse the transaction, because his claims about his intentions would be “words of the heart,” which do not have legal significance.

Tosfot also asks why gemara Bava Kamma 110, when exploring the effectiveness of unstated conditions, raises the case of a yevamah whose potential yavam has boils (and seeks to void her original marriage to avoid the relationship), rather than the straightforward case of a woman whose husband develops boils. He answers that in that case, the husband’s intentions matter too, whereas the yevamah’s husband is dead and does not care. He posits this as a general distinction between cases where only one party cares and cases where both do.

The case Tosfot is commenting on allows a husband whose wife died after eirusin but before nisuin to avoid paying any ketubah commitments beyond the mandatory minimum because he “wrote it in only order to marry her”. His answer is therefore puzzling; in that case, shouldn’t her daat matter too?! Mishneh LeMelekh suggests that unstated conditions can be considered even in cases of two-sided daat even against the will of one party as long as there is no loss to that party; returning to the pre-transaction state is not considered a loss.

Netivot HaMishpat writes (as summarized by the Minchat Shlomo) that in a case where one bought wine from one’s fellow to sell elsewhere and then wine prices fell everywhere, the original purchase is void because the seller does not lose – the wine would have gone down in price even if it had been with him. Only in a case where the cow becomes a traifa does he lose, because the seller could otherwise have slaughtered or sold it to others, which could not be done in the case of the wine because the price fell before he wine could have reached its intended destination.

Minchat Shlomo is astounded at this because he believes that Tosfot was only talking about a “davar tzdadi” (possibly: one-sided matter, peripheral matter, unusual matter) like traifa and death, but price fluctuations are a case where people do cost-benefit analyses and accept the risk (as a fundamental element of the transaction). He further objects to the entire idea that getting the money back is a case of no loss, because perhaps the price went up for the object he bought or the value of the currency fell.

The Minchat Shlomo suggests instead that there are two categories of umdena. An umdena gedolah is one where we are absolutely certain that he would not enter the transaction had he thought of this possibility. For instance, cases where money was given over on the presumption of a marriage that was ended prematurely through the death of a spouse are so clear-cut that the recipient of the money’s daat is irrelevant – after all, what reason would a father have to give money to his son-in-law once his daughter is dead? He claims this idea is also found in the Node BeYehuda.

This does not apply to the claim of the Netivot, where the umdena is not as strong.  The presumed objection of the seller therefore prevents the buyer from using an unstated condition to reverse the transaction.

But Netivot also claims that the Buyer cannot reverse the transaction once he has had the potential to derive any benefit from it. Why should this be so? There is no such rule if the condition was stated, and we have just said that the other person’s presumed intent is irrelevant. Similarly, Minchat Shlomo points out, Talmud Bava Kamma should raise its question about a yevamah whose husband died after nisuin but before actual consummation, but Tosafot say that the question applies only between eirusin and nisuin!

Furthermore, in every case where a woman dies after eirusin before completing the marriage,  why should we not say that the marriage is undone retroactively? After all, its only effect was to forbid the husband to marry her close relatives!

Minchat Shlomo responds to these difficulties by presenting a new way of looking at unstated conditions. He argues that they are not actually conditions (tnaim) at all! Conditions must be explicitly and formally stated, and the court’s knowledge of someone’s mindset or intentions cannot constitute a condition. However, when the transaction is incomplete – for example, if the purchaser has had no opportunity to derive benefit from the purchase – the court is entitled to consider the presumed or known intent of the parties.

However, Rabbi Meir of Rothenburg (Maharam) famously argued that while gemara Bava Kamma (as he understood it) concludes that women would rather have a boil-ridden husband than no husband at all, women would rather be alone than be married to apostates. In such cases, we therefore should be able to undo a yevamah’s marriage even if she had already completed the marriage with nisuin. This shows that he believed that even complete things can be affected by unstated conditions.

It follows that according to Netivot, parties in civil cases should be able to claim (kim li) that they follow Maharam, and therefore undo even completed transactions on the basis of strong unstated conditions. Their claim should at least shift the burden of proof in a case, and thus let whoever has possession win. To prevent this result, Minchat Shlomo suggests that one cannot claim unstated conditions when the relevant factors were so plausible that you should have mentioned them explicitly, rather only when the relevant condition is very unlikely.

We next saw the Rosh (Responsa Klal 34 Siman 1), who organizes the cases of reversed transactions in the gemara into three categories of tnai (taken from the Ri): transactions which only an explicit tnai can reverse, transactions which require at least explicit revelation of intentions, and transactions where one’s intentions are so obvious that one does not need to explicitly state them.

The Re’eim (Siman 16) lays out a similar triad: an umdena (legal estimation) which is extremely obvious and therefore not referred to as “words of the heart”, an umdena which is less obvious and requires explicit revelation of intentions, and an umdena which is so weak that it requires a tnai. This is the same as the Rosh, except that he assimilates all unstated conditions to umdena whereas the Rosh assimilates them to tnai.

Re’eim concludes that the ability to make umdenas regarding people’s intentions is no longer extant. We therefore cannot make new umdenas and use them to remove money from people, but we can use those referenced in the gemara and also very obvious ones, i.e. those where there is no other thing it could be.  This position is cited with approval by Responsa Ginat Vradim Choshen Mishpat Klal 5 Siman 1 and Responsa Chacham Tzvi in Siman 135.

The final source we looked at was the Rim (Even HaEzer 25). He defines a “clear umdena” as a condition which, had it been raised at the time of transaction, would have been a deal-breaker. How can we know which conditions would be deal-breakers? Where it is normal for one party to accept the risk, such as in the case of buying an animal even though it might be a traifa, there can be no umdena; we will not presume that this party would have demanded a condition unsupported by the market. But how do we evaluate transactions which do not have a defined market practice for sharing a particular risk?

We put forth two explanations of this. Rabbi Klapper suggested that this explanation is indicative of a game theory model where we envision all conditions that any party would want, remove any that contradict, and then see which party would concede on the remaining ones. In this vision, the chazakot used in the gemara to establish daat are assignations of bargaining power. This has the advantage of explaining all cases in the gemara nicely but may not be a sufficiently predictive principle. Further, there is no one in any historical precedent who states this directly.

The other possibility is that the Rim allows unstated conditions only when those conditions are assumed by the market. Thus, the traifa case is one where the tnai is not normal and therefore the buyer cannot get his money back, but the case of wine losing its value before one has the opportunity to sell it is normal and therefore reversible. This has the advantage of being practical and predictable but does not help us deal with new or unusual cases or circumstances. In this vision, the chazakot in the gemara are statements of market expectations.



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