Category Archives: Summer Beit Midrash

Excerpt from Teshuvah for SBM 2016

by Rabbi Aryeh Klapper

Excerpted from Rabbi Klapper’s SBM 2016 Teshuvah – stay tuned for the full teshuvah and teshuvot from the SBM Fellows!

What are we seeking to achieve as dinei mammonot (halakhic financial law) judges?

In his methodological essay Darkah Shel Torah, R. Eliyahu Bloch of the Telshe Yeshiva contends that dinei mammonot have all the general aims of secular economic regulations, but in addition contain elements with purely transcendent purposes.  Fundamentally, this suggests a utilitarian stance moderated by humble awareness that one cannot know G-d’s purposes in their full depth.

The purposes of secular economic regulation are order, justice, and equity.  Order requires predictability, and favors simplicity; people cannot follow the law if they don’t know or understand what it is.  Order can be just or unjust, equitable or inequitable.

Justice will be defined here as being treated in accordance with objective rules that whose principles are compatible with ethics.  Justice cannot exist in the absence of order.  But justice can lead to inequity, as a rule-based system sometimes cannot account for individuals and individuality, or for unusual specific circumstances.  The catch-22 is that one can lose order and justice if one seeks equity too aggressively.  

The ideal is to develop laws that yield justice and conform to equity the vast majority of the time, so that the need for equitable adjustments is low enough that it does not undermine order.

How can dinei mammonot judges accomplish this?  One key challenge is that they must pasken in ways that both shape and respond to expectations.  The ethical outcome in a financial transaction is often defined as having the parties get what they expected.  But not always!  For example, some transactions are entered into under duress, or in the expectation of bullying or fraud.  

The expectations of contemporary Jews, in both Israel and the United States, are largely shaped by contemporary Western notions of contract law rather than by formal halakhic precedent.  For example, in nonritual matters, parties generally conceive of contracts as self-enacting rather than as dependent on a subsequent giving of consideration, or on a separate maasei kinyan.1  

However, Western law has a host of doctrines (such as those of frustration and impossibility) that enable one to break a contract in light of unconsidered subsequent events.  These doctrines are regularly litigated, even though that litigation rarely succeeds.  This suggests that there is a tension between expectations and the secular law, and perhaps even between intuitive ethics and the secular law.2

Under those circumstances, it seems reasonable to say that where halakhah is not formally bound by dina demalkhuta/secular law (as it would be if the arbitration agreement explicitly required this, or if the parties signed a contract accepting this, and perhaps even if we were dealing with a case that fell within the parties’ range of expected outcomes and the secular law were clear), dinei mammonot should focus on shaping expectations rather than on conforming to them.

On that basis, I suggest that we revisit the question of halakhah’s approach to contractual obligations in light of unconsidered events.

My argument thus far has been that attempts to explain our precedents on the basis of either pure da’at (determination of actual intent) or else formal principles of construction have been unsuccessful.  On the other hand, attempts to explain them on the basis of a set of decision principles that are interlocking, less sweeping, and perhaps less formal, have produced a muddle that is unconvincing and impractical.  

Let me note briefly here three phenomena that to my mind are clear evidence of both muddle and of impracticality.

  1. The claim that a type of evidence applies only to maintain possession but never to transfer it.
  2. The claim that a rule can be applied only in cases addressed explicitly in the Talmud or in cases that are really, really clear (to the judge in a particular case).
  3. The claim that there is enough legitimate controversy about a rule that the party in possession can win the case if its possession agrees with (=asserts קים לי regarding) any of a broad and contradictory variety of understandings of that rule

One may say that in such circumstances, halakhists should simply surrender.  They can argue that there is a mitzvah to submit oneself to the halakhah as it is, however muddled and impractical, while conceding that it would be better were halakhah otherwise; when rabbinic authority is reconstituted, we will make takkanot to improve things.  

We must recognize, however, that such concessions will in practice make batei din unpopular destinations even for the most halakhically committed Jews.  I prefer, therefore, to see whether the halakhah can be reconstituted on the basis of honest interpretations of precedent, and thus the creation of new precedents.  I believe that the language of pesharah kerovah ledin used in the standard halakhic arbitration agreement allows us to be more prescriptive about the law in our decisions than is usual for halakhah.  We can decide in accordance with what the law should be, and thus over time transform ought into is.

I contend that there is an alternative to the da’at, formalist, and hodgepodge approaches presented above.  This alternative is implicit in many past precedents, and some aspects of it have been formulated by great decisores, but I suspect that it has not previously been fully articulated.  For convenience sake I will refer to it as the “ta’aninan” approach.

In a variety of cases, for example when a party is a minor orphan who inherits a claim without personal knowledge of the underlying facts, halakhah permits batei din to interpose legal claims on behalf of that party.  My suggestion is that when dealing with implicit conditions regarding unconsidered events, halakhah’s default setting is to treat all the parties as orphans.  We therefore make on their behalf all the conditions they would have made had they in fact anticipated the events.

Many of these conditions will directly conflict, of course.  We resolve conflicting claims by a game-theory method – we ask first whether party B would have walked away from the transaction rather than accept party A’s condition, and conversely, whether party A would have walked away from the transaction were party B to refuse their condition.  Whichever party would have walked away, wins.

I need to acknowledge that in reality, the parties would likely have negotiated, and agreed on a price for the condition.  This is in principle a fine tool for achieving equity and/or pesharah, and therefore should be available to batei din for those purposes.  However, no use of it is even hinted at in the precedents I have seen.  My sense is that it would generate results that are too subjective and speculative for law, along the lines of נתת דבריך לשיעורין.  

Therefore, I believe that halakhah as such must play the game artificially, with the parties having no options other than accepting a condition or refusing the transaction.

Similarly, each condition must be analyzed independently, even though in actual negotiations they would be bundled or traded for one another.

I note again that this is a mechanism for dealing with the hypothetical, not for figuring out what the parties’ actual intentions were – we are dealing with cases where there were by definition no such intentions.

I also need to mention that Professor Robert Aumann has previously theorized that at least one tanna, Rabbi Natan, thought in game theory modes.  Finally, I need to thank my friend Chava Evans, whose gift to me of Game Theory and the Law many years ago was enormously productive to my thinking.

I also need to make clear an aspect of this theory which may strike some as cheating, or as creating epicycles of its own.  Since this is fundamentally a tool of equity, like ta’aninan, the legal system is not ethically obligated to allow every possible move in the game.  Thus we may “penalize” a player for having acted unethically, or we may bar certain moves because they will have unfortunate general economic consequences for the community.  It particularly allows us to bar moves in some areas of law, such as marriage and divorce, while allowing them in others.  My contention is that the system will remain “elegant” because all allowed moves are evaluated in the same fashion.

Thus far theory.  What I need to do now is explain how the theory works to explain the primary sources on this issue, and according to which secondary sources.  Following that I will – at long last – return to the specific case at hand…


  1. This paragraph owes much to presentation notes generously shared by Professor Chaim Saiman of Villanova Law School.
  2. This paragraph owes much to a presentation by Professor David Phillips of Northeastern University Law School at SBM 2016.  Any errors are of course my responsibility.

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2016 Summer Beit Midrash Shayla

by R’ Aryeh Klapper

After five weeks of learning about Halakhot relating to contracts, the SBM fellows have been posed the following Shayla. Stay tuned for R’ Klapper’s response!

Shulamit Moskowitz Cherchofsky and Ezra Stiebel are a married couple in their early thirties. respectively, a Hebrew teacher and entrepreneur living in small rental quarters in Maalei Adumim.  But they have a dream, embodied in a mortgage (51% paid off!) on a plot and a building permit on an as-yet-unbuilt-up hill in Efrat.

Reality intervenes.  In January 2016, Shulamit is offered a job as a Hebrew teacher in a community Jewish school in Oklahoma City, Oklahoma.  It seems a great opportunity for her, and they begin preparing for the transition.  They plan to arrive on Oklahoma City on August 10, and get in touch with real estate agents immediately, hoping to buy.

First they sell the mortgaged land, to the American Orthodox developer Donald Chevreman, closing on February 28.  Chevreman owns many other lots in the same area, and has been pressing them to sell for several years.   Then Ezra puts in an order for 100 handpainted t-shirts featuring Kevin Durant in his OKC Thunder uniform at $15 each, from the local designer Olga Cassini.

All seems in order until July 4.  On that date, Kevin Durant chooses to sign with the Golden State Warriors.  Within two weeks, Durant’s restaurant in OKC closes, and there is no market at all, certainly in OKC, for T-shirts of him in a Thunder uniform.

Then, on July 28, they receive the news that the school is closing, for lack of funds.

Shulamit and Ezra sue Donald in a local beit din to undo the transaction. and get their land back.  Donald counterclaims that the mere association of his name with their plot of land has raised its value significantly, and that he is at the least entitled to its current market price.  He also asks for ZABLA.  Meanwhile, Olga sues them for payment for the t-shirts, 50 of which she has already made.  An arrangement is made to consolidate the cases in an ad hoc international beit din, and you have been appointed to the panel.

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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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Week Four Summary of SBM 2016

This week’s summary is written by Ariel Kelman and Shira Krinsky

Bava Batra 98a relates two statements of Rava, the second of which reads as follows:

One who accepts wine to travel with it to a faraway market, and before he gets there the price of wine falls – [the one who gave him the wine] accepts the loss.

The case is one where a wine seller gives a barrel of wine to a reseller who will travel to sell the wine for a profit, which will be split between them.

This ruling is mentioned in Rambam Hilkhot Mekhirah 17:5) and Shulchan Arukh Choshen Mishpat 230. Netivot HaMishpat finds this ruling extremely problematic – how could it be that the profits would be split, yet the responsibility for any losses rests with the original wine-seller? This is not the way people actually engage in business!  Furthermore, Rav Moshe Isserles (RMI) makes no comment here, indicating that he agrees, but in Choshen Mishpat 176 he states the following:

One who accepts merchandise to sell it elsewhere and split the profits, and within (alternatively: before) the time of travel, the merchandise loses value here – we evaluate the value of the merchandise [for the purpose of recouping the cost by the original seller] at the time at which the reseller begins travelling, not at the time he received the merchandise.

Netivot argues that we can infer from here that after travel has begun, the merchandise is under the responsibility of the reseller – and therefore price fluctuations do not impact the original seller, who is still entitled to the value of the merchandise as of the time the travel was begun (as long as there is a profit, even if diminished, that is split equally).1 Yet this contradicts the ruling in 230 that so long as the price dropped before the reseller reached the final destination, the original seller is responsible for any price fluctuations, presumably because the wine is still “his.”

To resolve this contradiction, Netivot explains that RMI in 176 is based on Rabbeinu Yerucham’s interpretation of Rava, which he understands to be saying that the time at which transport begins is the determinant.  Before that time, the merchandise is under the jurisdiction of the original owner, who bears the cost of price fluctuation (whether the price goes up or down), while afterwards the two of them share equal responsibility for both gains and losses.

Choshen Mishpat 230, however, is based on Rashbam’s interpretation of Rava.  Rashbam says that Rava is discussing a case of a universal price drop rather than a local one. In the case of  a local price drop, however, the cost of the price fluctuation would be split between the parties.

Netivot builds this up based on the explanation of Tosfot Ktuvot 47b ד״ה שלא כתב לה אלא לכונסה as discussed in Mishneh L’Melekh (Hilchot Zekhiah 6:1). Tosfot explains that one can get out of transactions by claiming an implicit condition only in cases where the transaction was dependent on only one party, such as when dedicating a sacrifice to the Temple. Mishneh L’Melekh adapts this explanation of Tosfot and says that one can annul a contract on the basis of an implicit condition only if the other party will not thereby sustain a loss as a result of the transaction, but rather will merely be restored to the situation that he would have been in had the transaction never been made.   

Netivot then notes an issue – if one can annul a transaction whenever the other party will not thereby be subject to a more severe loss than if the transaction had never occurred, then if one buys a cow that subsequently dies, he should be able to undo the transaction – for if the transaction had not occurred, the seller of the cow would now have a dead cow!? To resolve this problem, he makes a further distinction regarding whether or not the buyer has had the potential to benefit from the transaction. If he has had the potential to benefit from the transaction (e.g. had the cow in his possession for some time), even if he has not actually received any benefit, he is not able to annul the transaction. In Choshen Mishpat 230, where the reseller can by agreement sell the wine only in his market destination, if the price drops before he arrives, he can undo his transaction – leaving the original seller to bear the cost of the price fluctuation. However, when one buys a cow that subsequently dies, once one had the opportunity to gainfully use the cow, one can no longer undo the transaction.

Returning to the original contradiction between the Choshen Mishpat 230 and 176, Netivot attempts to explain why the case of a universal price drop (Rava as understood by the Rashbam and brought in Choshen Mishpat 230) differs from the case of a local price drop (Rava as understood by Rabbeinu Yerucham and brought by RMI in 176). In the case of a universal price drop, undoing the transaction simply places the original seller back where he would have been had the transaction never taken place – with a barrel of wine that had lost value. If there is a local price drop, however, undoing the transaction would indeed place the original seller in a worse position – he could now sell the wine at a higher price in his original location if he had the wine (i.e. if the transaction had not been made). Once the buyer sold the wine for cheaper in the distant market, however, this is no longer a possibility.

Netivot then discusses a practical case that he had ruled on which touches upon this issue. There was a war in a particular country, and the king ordered linen for uniforms in anticipation of enlarging his army. To that end, the king made contracts with many of his subjects. One subject, Reuven, sub-contracts to Shimon for the linen, showing him the contract from the government. Before Shimon fulfills his contract, however, the king loses the war and cancels all of his contracts for linen, resulting in a massive devaluation of linen. Shimon, however, wants to hold Reuven to his contract for all the linen at the original price. Netivot ruled in this case that Reuven did not have to uphold his contract with Shimon, as it is similar to a case of a cow which dies before the buyer has any opportunity to derive benefit from it, in that the buyer had no opportunity to gain from the transaction, and the seller is not placed in a worse position than he would have been had the transaction not been made (as the price drop was universal).

It is interesting to note some of the broader perspectives of the Netivot. For example, while he holds that a loss to one party prevents the other party from undoing a transaction by claiming an implied condition, Netivot does not consider opportunity costs to be losses for this purpose.. While in modern Western contract law, damages can be awarded for a lost opportunity (such as an alternative investment), or expectation damages (ie. requiring the breaching party to put the non-breaching party in the position they would have been had the contract successfully been fulfilled), the Netivot does not recognize such principles (and indeed, they have only been developed in Western law since his time).

The Netivot himself notes an odd outcome of his resolution of the contradiction between the RMI 176 and Shulchan Arukh 230 – the rulings turn out to be based on mutually exclusive explanations of Rava on Bava Batra 98a. The explanation of the Netivot solves the practical contradiction with regard to the law, but the rulings remain mutually exclusive from a textual point of view. This raises methodological issues – to what degree are we bound to provide a consistent understanding of our legal texts? Can we accept all the rulings of several authorities, despite the fact that each would deny the basis (though possibly not the ruling itself) of the other? On the other hand, perhaps we should incorporate the best policies so long as we find appropriate authorities as support, which seems to drive the Netivot’s analysis of the sugya. All the Netivot notes is that both rulings are sound law, and both can therefore be incorporated into our legal system, leaving us to consider any broader implications of his methodological approach.



  1. If there is a loss, as the final resale price has dropped below the worth of the merchandise when the transport was begun (say from 100 to 80), then that loss is split equally – the original owner would get the full 80, as well as 10 from the reseller – thus each loses 10. This is the case referred to by the language of the Netivot, “חל ההיזק על שניהם”. Netivot does not care whether the relevant price fluctuation occurs in the original city or at the point of final sale.



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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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Week Two Summary of SBM 2016

This week’s summary is written by Yoni Zolty and Yakov Ellenbogen

In several places, the Gemara suggests using the claim of “adata dehachi” as a way of retroactively disqualifying a marriage or divorce contract (gittin). Thus, for instance, a husband can claim that when he divorced his wife, the divorce rested on certain conditions he had assumed at that time. While those conditions were unstated at the time of the divorce, the husband now claims that because they failed to materialize the divorce should retroactively be invalidated.

The claim “adata dehachi” allows marriage contracts to conform to the expectations of the respective partners. Marriage partners can now be assured that the legal agreements they form–in this case, a divorce contract–will take into account their conditions and reservations. Thus, for instance, the Gemara in Yevamot 65a presents a case of a man who divorces his wife because he believes that his wife is barren, but would prefer to remain married otherwise. Although, he may not have stated explicitly his assumption and qualification to this divorce document, the claim of “adata dehachi”–that he would not have divorced her had he known that she was able to reproduce–provides him a legal mechanism of expressing his regret and retroactively annulling the divorce. Thus, on the one hand, the advantage to the claim of “adata dehachi” is its ability to allow one to express his unstated qualifications for a divorce document.

However, these qualifications were unstated at the time of the divorce. They may have been implicit and obvious to the husband, but they were not clear to his wife or to the Beit Din. This raises several critical issues. First, there is an epistemological problem–how do we determine what were these implicit conditions? We obviously can’t just take the husband at his word, so how do establish these qualifications? The rishonim discuss determining a person’s implicit conditions based on a presumption of the husband’s motives for the divorce and debate in which scenarios these presumptions are justified; i.e. what type of umdanas (established guesses) can be used?

Moreover, the bigger issue in the sugya is that claims raised at a later date which would retroactively annul a divorce, may have disastrous consequences for the woman and her potential children from a second marriage. The Gemara, astounded with the possible implications, asks whether her children would be mamzeirim (bastards)?

Thus, these two opposite perspectives to the claim of “adata dehachi”–its potential benefits and disadvantages–affect the borders and limits to the claim and determine the situations in which the Gemara, and subsequently, the rishonim, are willing to allow the claim.

These issues may likewise determine whether the claim of “adata dehachi” can be used in other scenarios besides marriage contracts. Can we extend this legal principle to general contract law? In general, the sugyot try limiting the use of “adata dehachi” in gittin as much as possible. The question is whether these limitations would also extend to contract law where there may be more advantages to not requiring all tena’im (conditions) to be stated explicitly and the potential negative consequences may not be as calamitous.

The sugya surrounds four scenarios where a husband divorced his wife and would like to annul the get after discovering that he gave it on false premises:

A. His wife is barren and he later discovers that she is capable of childbirth (Yevamot 65a).

B. His wife is incapable of having regular menstrual periods and she later begins to have regular periods (Nidah 12b).

C. His wife has a “shem ra”–a bad reputation, and he later discovers that her shem ra was baseless (Gitin 45b).

D. He believes his wife is an aiylonit (incapable of undergoing puberty) and she later undergoes puberty

The gemara presents different ways of preventing retroactive annulment of divorce for each of these cases, and it is not clear why these differences need to exist. The rishonim struggle to explain these distinctions and devote much ink explaining why the gemara gave different explanations as to why the divorce remains valid in each situation.

One useful tactic to better understand the distinctions between the above cases suggested by the rishonim is to create a useful theoretical framework to analyze the cases. Rabbi Klapper suggested that there are three ways to categorize information and when one has access to it:

  1. The information is true now and accessible, but you personally are not aware of it
  2. The information is true now but is currently inaccessible and can only be accessed at a later time.
  3. The information is not true now, but will be true later.

Thus, for instance, in the case of the woman who after the divorce begins to have regular periods, the information that she will have regular periods in the future is both inaccessible at the time of the divorce, and is also nonexistent (it will only become true in the future). It therefore belongs properly within category (3).

In contrast, category (2) occurs when the information was true at the moment of the divorce, but was simply inaccessible and unknowable. Thus, if a woman is considered to be infertile but after a divorce has children, this new information was always true (the woman was always fertile), but simply unknowable at the time of divorce.

In category (1) the knowledge was accessible and existent at the time of the divorce, but the husband was not aware of them; for instance, in the case of a husband who does not wish to investigate whether his wife was an aiylonit. The information was accessible–he could have investigated whether she could undergo puberty, he just didn’t put the effort necessary to find out.

This conceptual framework can be used to understand the chilukim suggested by Tosfot (Yevamot 65a s.v. iy ihi) between the cases. In the first case, Tosfot wishes to distinguish between the case where the husband assumed that his wife was incapable of bearing children (case A) and the case where the husband assumes his wife is an aiylonit (case D).

 וי”ל דהתם … כיון דלא חשיב לבדוק יפה בסימני אילונית גמר בדעתו לגרש בכל ענין … אבל הכא אין בידו לבדוק 

Tosfot suggests that in the case of an aiylonit the husband could have investigated whether she was indeed an aiylonit. Had he really wanted to divorce her only if she remained an aiylonit then he should have first checked to verify that she indeed was an aiylonit before divorcing her. The fact that he didn’t check, implies that he in fact reneged on this qualification and was willing to divorce her irrespective of her status as an aiylonit. Conversely, in the case of the woman who is unable to bear children, because the husband had no way of verifying this information, his implied condition is considered valid and can be used to undo the divorce.

The difference between these two cases can be better appreciated by placing them within the categories developed within our conceptual framework. The case of an aiylonit is the type of information which one could have had right now but was too lazy to check–type (1), while the case of a woman unable to bear children is the type of information which was impossible to ascertain at the time (type 2). Tosfot is effectively arguing that information of the type (1) is considered invalid grounds for retroactively dissolving a divorce, while information of type (2) is a valid reason for retroactively undoing a divorce. Since in case A (that of a woman unable to bear children) the divorce can be retroactively annulled, the gemara must give another reason for why the divorce is not retroactively cancelled, namely that ‘[we claim] she has only now been healed [while at the time of the divorce she was indeed unable to have children]’.

Likewise, Tosfot makes a similar distinction between the case of an woman who is unable to bear children (case A) and a woman who has a bad reputation (case C).

 דהכא לא שייך קילקולא דאמרינן השתא הוא דברייתא ובשעה שגירשה לא היתה ראויה אבל בשם רע ונדר ואילונית איכא קלקולא כשנתגלה לבסוף שהשם רע היה שקר ולא היתה אילונית גם מתחלה דאם היתה לא הוה בריאה לעולם ונדר נמי כיון שיכול להפר כאילו לא היה נדר

Tosfot argues that one cannot annul a get in the case of a woman who is unable to bear children because she has undergone a physical change and while she is now capable of giving birth now, she truly was not capable of doing so before the divorce. Conversely, in the case of the woman whose bad reputation is proven to be baseless, even originally the bad reputation was baseless–there was just no way of ascertaining that until the future, and therefore one can annul the get.

Once again, these cases can be placed within our conceptual model. The case of a woman who had undergone a physical change and can now give birth is of type (3). The information that she was able to give birth before the divorce was not only inaccessible but false–she truly was unable to give birth at that time. In contrast, in the case of the woman who is believed to have a bad reputation, the fact that the bad reputation was baseless was always true and therefore is of type (2). Tosfot is thus arguing that information of type (2) is considered valid grounds for divorce while information of type (3) is not. (The reason that the case of the woman who was unable to give birth switched from type 2 to type 3 is because the Gemara changes its assumption about the details of that case. This is related to the gemara’s answer of ‘she has now been healed’ mentioned above.)

Thus, using this conceptual model we were able to explain some of the distinctions that Tosfot makes between the cases. These distinctions are important because they provide guidelines as to when claims of implied conditions are considered valid and for what types of information we allow implied conditions instead of requiring that they be expressed formally and explicitly during a divorce.

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Week One Summary of SBM 2016

This week’s summary is written by Eliav Grossman and Leead Staller

What role do unforeseen occurrences play in the halakhic system of commercial commitments?  We will cast a wide net over this summer, including topics that seem very distant from commercial contracts at first sight.  Since halakhic marriage can be understood as a halakhic contract, Rabbi Klapper hopes that  new perspectives we gain about the response of  halakhic contracts in general to unforseen negative developments will contribute to the development of solutions for agunot.

In this first week of learning, we explored the world of nedarim; verbal commitments that are self-imposed constraints on otherwise permitted behaviors.  More specifically, we explored the processes and parameters through which one can renege on such commitments. To that end, we considered various cases of unforeseen circumstances that allow a neder to be erased.

The Mishnah ( Ned. 9:1) states:

.רבי אליעזר אומר: פותחין לו לאדם בכבוד אביו ואימו; וחכמים אוסרין

.אמר רבי צדוק: עד שפותחין לו בכבוד אביו ואימו, יפתחו לו בכבוד המקום; אם כן, אין נדרים

Rabbi Eliezer says: we give a person an opening [to a vow] by reference to the honor of their father and mother. The Sages forbid doing so.

Said Rabbi Tzadok: Rather than giving an opening through the honor of their father and mother, open with honor of God; If so there would be no vows!

In order to nullify a vow, the vower must express regret at having taken the vow to a rabbi. In cases where the vower wishes to nullify his vow but does not feel regret, a rabbi can attempt to provoke feelings of regret through guided questions. Rabbi Eliezer teaches that a rabbi may prompt someone who has taken a vow to regret his pledge by reminding him how unhappy his parents would be with his wanton oath-taking. The Sages disagree with the acceptability of such a practice. Rabbi Zadok challenges R’ Eliezer’s view, and asserts that a rabbi could, more powerfully, invoke God’s disapproval at such behavior in order to encourage nullification. If God’s displeasure with irresponsible oath-taking is valid grounds for such rabbinic encouragement, though, then all vows are susceptible to erasure! After all–who could resist feelings of regret when told that God frowns upon his supererogatory self-imposed restrictions? Thus, implies the Mishnah, the displeasure of neither God nor parents may be invoked to actuate erasure of the vow.

Given the severity with which we generally consider religious commitments, we can understand why The Sages would be hesitant. Like the Mishnah says, once we adopt a looser standard for vows, it’s a slippery slope until the entire institution of nedarim itself is undermined.

But why would Rabbi Eliezer be lax with the stakes as high as the erasure of the institution of nedarim? Can he really scoff so dismissively at the binding weight of verbal commitments? Indeed, he may well be doing just this. While, intuitively, the idea of disregarding one’s commitments may seem disturbingly dishonest, in this case, we must consider whether nedarim should be thought of as comparable to human contract law in any way. Undoubtedly, it would seem morally and pragmatically problematic for Halakha to allow for one to disregard their word and break their interpersonal commitments. Thus, it must be that the legal system could not allow for all commercial commitments to be easily nullified; otherwise commerce would be chaotic and impossible. That being the case, if Rabbi Eliezer really is unperturbed by the potential erasure of all nedarim, it must be that he does not think of nedarim as comparable in any way to human promises or commercial commitments. Rather, from a legal perspective, the ritual world of nedarim must be viewed as wholly independent from the interpersonal world of commercial law. Thus, Nedarim may not be a useful point of reference for thinking about unexpected circumstances and commercial contracts.

Indeed, such a perspective may emerge from a comment of the Tiferet Yisrael on our Mishnah. The Tiferet Yisrael rejects the idea that one should be bothered by the prospect of the total erasure of all nedarim. Paraphrasing a mishnah from Zavim, the tractate dealing with impure bodily emissions, the Tiferet Yisrael exclaims “Is the existence of nedarim really our responsibility?” In other words, while such a position may indeed wipe nedarim off the map, it’s not the responsibility of the human halakhist to ensure the real world existence of ritual law. Much like we would feel unperturbed by a halakha that renders certain laws of ritual impurity impractical, we should adopt a similar attitude towards the ritual laws of nedarim. This seems predicated upon an assumption that the world of nedarim is just as ritual and removed from interpersonal laws of human commitments as the laws of Zavim and ritual purity are.  

Indeed, several sugyot suggest that there is always a way to undo a neder. For example (b. Ned. 23a):

,מעשה באדם אחד שהדיר את אשתו מלעלות לרגל, ועברה על דעתו ועלתה לרגל

?ובא לפני רבי יוסי. אמר לו: ואילו היית יודע שעוברת על דעתך ועולה לרגל, כלום הידרתה

.אמר לו: לא; והתירו רבי יוסי

A man once said that if his wife were to make the festival pilgrimage [to Jerusalem], he would vow not to allow her to derive any benefit from him [Note–the result of such a vow is that the husband must divorce his wife] ; but she disregarded his wish, and did go.

He went to R. Yose [for absolution of the vow], who said to him, ‘Had you known that she would disregard your wish and make the journey, would you have imposed the vow on her?’

He answered, ‘No,’ and R. Yose absolved him.

Rabbi Yose’s agreement to nullify the vow seems astonishing. After all, did not this man explicitly stipulate that if his wife would go to Jerusalem, he would take a vow and divorce her? How can the man reasonably say that had he known his wife would disregard his threat, he would not have stipulated the very condition which acknowledges the possibility of her going to Jerusalem?! Yet, while some commentators attempt to mitigate the severity of this conclusion, the simplest reading of the Gemara indicates that R. Yose’s nullification of the vow is effective. If this type of nullification works, it would seem that there are no vows that are impervious to nullification. This sugya furthers the impression that nedarim and commercial contracts exist on different planes–such expansive possibilities for nullification would render commercial interaction impossible.

The truth is that even Rabbi Eliezer may have his limits, depending on how one reads the Mishnah. There is an ambiguity as far as who states the last clause quoted above, “if you allow for opening vows by invoking divine disapproval, then you’ll allow for the erasure of all nedarim.” Seeing as this clause is unattributed, one could read it as the continuation, and final thrust, of Rabbi Tzadok’s challenge to Rabbi Eliezer. “If you allow rabbis to invoke parental disapproval, then you must allow for the invocation of divine disapproval. And if you allow that, then you’ll undermine all of nedarim! Thus, one must not allow even the invocation of parental disapproval.” Rambam, in his commentary on the Mishnah, adopts this reading.  

Alternatively, one could read this unattributed statement as being Rabbi Eliezer’s response to Rabbi Tzadok’s challenge. After Rabbi Tzadok challenges that permitting the invocation of parental disapproval must necessarily lead to the permissibility of invoking divine disapproval, R’ Eliezer responds by drawing a line. “While I may allow for the invocation of parental disapproval, I would never allow for the invocation of divine disapproval, as that would undermine all of nedarim.” Rav Ovadiah MiBartenura suggests this reading of the Mishnah. If we adopt this approach, even Rabbi Eliezer can be seen to have limits to his willingness to nullify nedarim– reinforcing the seriousness with which Halakha considers one’s commitments. Thus, the disagreement between the Rambam and Bartenura as to how to read the Mishnah may belie a greater question as to whether it’s even possible to entertain a position within the Halakhic system that is unfazed by the threat of nullifying all vows. In turns, this may reflect upon one’s general attitude towards Halakhic commitments and their severity.

Thus, the discussion in our Mishnah can be seen as revolving around the question of halakha’s willingness to allow for the nullification of previous commitments. The sages in our Mishnah struggle to impose the proper limits on the scope of vow erasure, by arguing about whether to allow vow erasure at the mere remembrance of parental or divine displeasure.  The expansive allowances adopted by some for nullification of nedarim may point to a large gap between the laws of nedarim and those of commercial contracts. Ultimately, this discussion touches upon the larger question of one’s perspective towards halakhic commitments, and the circumstances necessary to justify a reconsideration of those commitments.

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