Obligations, Law of
OBLIGATIONS, LAW OF
This law is concerned with the rights of one person as against those of another (jus in personam), as distinguished from the law of property, which is concerned with a person's rights in a chattel or other property as against the world at large (jus in rem). Unlike Roman law, in Jewish law the mere existence of the obligation automatically creates in favor of the creditor a *lien (shi'bud) over his debtor's property, a real right attaching to the obligation, which for a very long time was regarded as stronger than the personal right afforded by the obligation. The term ḥiyyuv originates in the word ḥov, meaning both the obligation which is imposed on the debtor (e.g., bb 10:6) and the right to which the creditor is entitled (Bik. 3:12; Git. 8:3). However, ḥov generally refers to a pecuniary obligation only, whereas ḥiyyuv has come to be used in a wider sense to include also the duty to perform an act, etc., comparable to the Roman law concept of obligatio.
The two parties to an obligation are the debtor (ḥayyav, bm 12b) – on whom the duty of fulfilling the obligation is imposed – and the creditor (ba'al ḥov) – who has the right to claim that the obligation be fulfilled. The term ba'al ḥov is sometimes used in the sources to describe the debtor as well (see Elon, Ha-Mishpat ha-Ivri., 1, p. 483), which makes it necessary to exercise care in the use of these terms. It may be noted, too, that in Jewish law the term malveh ("lender") and loveh ("borrower") are not invariably used to denote an obligation arising from the transaction of a loan, but also to describe the parties to an obligation arising from any other transaction. This follows from the tendency in Jewish law to express a plain legal norm in concrete terms (e.g., keren, shen, bor, etc.; see *Avot Nezikin; *Mishpat Ivri), and thus the transaction of loan (halva'ah) is used as a concrete illustration of a clear and common obligation (e.g., sections 97–107 of Sh. Ar., Ḥm are grouped under the heading Hilkhot Geviyyat Milveh, even though they are not confined exclusively to the recovery of debts originating from loan) (Elon, Ha-Mishpat ha-Ivri., 1, p. 483).
Creation of the Obligation
As in other legal systems, Jewish law recognizes the creation of obligations in two principal ways:
(1) arising from *contract, whereby one party acquires a claim of right against another which the latter is obliged to honor; and
(2) arising from an act of tort (nezek; see *Torts), whereby the conduct of one party causes another to suffer damage, so that the latter acquires a claim of right against the tortfeasor for indemnification in respect of the damage, which the law obliges the tortfeasor to honor. The first talmudic tractate of the order of *Nezikin, namely Bava Kamma, deals mainly with the laws of obligations arising from tort, i.e., harm inflicted by one man on another's person (e.g., *assault) or property (e.g., *theft and robbery), as well as harm inflicted by means of one man's property (mamon) on the person or property of another. In this case the owner of the property is obliged to compensate the injured party for the damage suffered through his negligence in preventing harm arising by means of his property. The other two tractates, Bava Meẓia and Bava Batra, deal largely with obligations arising from contract. Jewish law distinguishes between the obligations arising from these two different sources, particularly from the point of view of the manner of recovery of the debt on the debtor's failure to make due payment of it in cash or chattels. Thus obligations arising from tort are recoverable from the best of the land (idit), whereas contractual obligations are recoverable only from land of average quality (beinonit), and the *ketubbah obligation from the worst (zibburit; Git. 5:1; see also *Execution, Civil). Roman law, in addition to a similar distinction between obligationes ex contractu and obligationes ex delicto, further subdivides the obligations into those which are quasi-delict and quasi-contract. Although Jewish law also recognizes quasi-contractual obligations, it does not employ the legal fiction of regarding these as arising, as it were, from a contract between the parties (as, e.g., in the case of the negotiorum gestio); the degree of liability imposed on the owner of a field toward one who "goes down to his field" and plants there without permission extends to the latter's expenses and, at most, to the value of the improvement from which the field has benefited (Tosef., Ket. 8:8; bk 10:3; Ket. 80a).
In the case of obligations arising from both contract and tort, the degree of liability is coextensive with the respective objective value of the contractual transaction or with the extent of the loss sustained as a result of the damage inflicted; this liability is called mamon. When the measure of liability does not correspond to the value or loss it is called kenas ("a fine"; e.g., bk 15 a–b and see *Fines). Liability for such a fine may exist:
(1) by the consent of the parties, i.e., their agreement to pay a certain liquidated sum upon breach of the contract; or
(2) by operation of law, i.e., when the law provides for a measure of compensation that does not correspond to the actual loss caused by the act of tort (bk 15a–b).
Such a fine by operation of law can take three possible forms:
(1) the liability exceeds the actual damage (e.g., a thief being liable to pay double and four-or fivefold compensation: see *Theft and Robbery);
(2) the liability is less than the actual damage (e.g., where only half-damages are payable for a shor tam that has gored: see *Avot Nezikin); and
(3) the liability is for a fixed and pre-determined amount (e.g., in the case of defamation of a virgin: Deut. 22:19 and see also 29).
Imperfect (i.e., Unenforceable) Obligations
Jewish law recognizes the existence of two kinds of imperfect obligations. In the first category a legal obligation exists, but the court will provide no remedy for the party seeking its enforcement. Thus in the case of fixed (direct) interest (ribbit keẓuẓah; e.g., 100 are lent so that 120 shall be repaid), which is prohibited by Pentateuchal law, the lender is obliged to return the interest paid, and it may even be reclaimed by the borrower through the court; if, however, the interest is indirect (avakribbit, lit. "dust of interest"), which is forbidden by rabbinical law only, the borrower cannot reclaim the interest in court (bm 61b; Yad, Malveh 6:1; Sh. Ar., yd 161; and see *Usury). Similarly, in all cases which are regarded as robbery according to rabbinical law only – e.g., when a person wins money in a game of chance (which is regarded as unjustified even if the loser consents) – the loser cannot reclaim the money in court (Sanh. 25b; Yad, Gezelah 6:6–16, and other posekim; see Elon, Ha-Mishpat ha-Ivri, 1, p. 194). The second category of imperfect obligations derives from tort; regarding this it was prescribed that "the offender is exempt from the judgments of man but liable to the laws of heaven" (bk 55b), as for example, in the case of a man who bends his neighbor's standing grain toward a fire in such a way that the grain will catch fire if the wind changes or strengthens unexpectedly, although there is no such danger as long as the wind does not alter (bk 55b and codes; see further Law and Morality for obligations carrying a moral or religious sanction only) (see Elon, Ha-Mishpat ha-Ivri, 1, p. 129).
The Personal and Proprietary Aspects of Obligation in Jewish Law
Many ancient systems of law (e.g., Babylonian law, Assyrian law, the laws of Eshnunna) provided for the creditor's being able to secure repayment of his debt by enslaving the debtor or the members of his family (see Elon, Kevod ha-Adam ve-Ḥeruto, pp. 3–8). According to the early Roman "xii Tables" and by means of the legis actio per manus injectionem, the creditor was even afforded the right, after certain preliminary procedures, of putting the defaulting debtor to death and taking his proportionate share of the body if there were several creditors. This "right" was abrogated by the Lex Poetelia and replaced by the possibility of imprisoning the debtor (see *Imprisonment for Debt on the position in Jewish law).
On the other hand, Jewish law did not recognize any form of enslavement of the debtor's person (the bondsmanship referred to in the Bible is confined to two cases: one of the thief who lacks the means to make restitution (Ex. 22:2); the other of a person who voluntarily sells himself on account of utter poverty (Lev. 25:39)). The creditor is strongly adjured to act mercifully toward the borrower and not to take in pledge the latter's basic essentials, nor to enter his house for the purpose of seizing a pledge (Ex. 22:24–26; Deut. 24:6, 10–13). If in practice the law was not always strictly observed and there were cases – due to the influence of surrounding legal customs – of enslavement for debt (ii Kings 4:1; Isa. 50:1, etc), such cases were roundly condemned by the prophets (Amos 2:6; 8:4–6), and it appears that after the sharp reaction of Nehemiah (Neh. 5:1–13) enslavement for debt was abolished in practice as well (Elon, Kevod ha-Adam ve-Ḥeruto, 8–10).
The uncertain personal nature of an obligation in Jewish law led, in the second half of the fourth century, to fundamental differences of opinion on the substance of the borrower's personal liability to repay money to the lender. In the opinion of all scholars, restitution in the case of bailment or robbery constituted a clear legal obligation – since the bailor or the person robbed had a proprietary right in the property concerned. In the case of a loan of money, however, given in the first instance so that it could be used and expended by the borrower, in the opinion of R. Papa, the liability to repay the debt was no more than a religious duty (i.e., it was a mitzvah for a person to fulfill his promise and give effect to his statements (Rashi Ket. 86a)) and not a legal obligation. R. Huna, however, expressed the opinion – which was shared by the majority of the scholars and according to which the halakhah was decided – that the duty of repaying a debt was also a legal obligation. This personal aspect of the obligation is termed shi'bud nafsheih in the Talmud (i.e., pledging personal responsibility; see, e.g., Git. 13b, 49b; bk 40b; bm 94a; bb 173b). From the 11th century onward it seems, it was referred to as shiʾbud ha-guf ("servitude of the person"), a term apparently mentioned for the first time in the statements of Alfasi (quoted in the Resp. Maharam of Rothenburg, ed. Cremona, no. 146, and in greater detail in the statements of Jacob *Tam cited in the commentary of Nissim Gerondi on Rif, to Ket. 85b; see also *Contract).
The impossibility of securing repayment of a debt by enslaving the debtor created a need for the establishment of an adequate security, i.e., by charging the debtor's assets: land was well suited for this purpose since it could not be carried away and was not subject to loss or extinction. Hence the rule that, immediately after a debt was created, the creditor acquired a lien over all the real estate possessed by the debtor in such a manner that the debt afforded the creditor not only a personal right of action against the debtor but also a right in the form of a lien over all his land. Land was accordingly termed "assets bearing responsibility" (nekhasim she-yesh lahem aḥarayut; i.e., guaranteeing the obligation of the debtor; Kid. 1:5; bm 1:6; bb 174a) and recovery therefrom was based on the creditor's charge and not on his right of recourse against the debtor personally. On the other hand, the debtor's chattels, being subject to loss and depreciation, were incapable of "bearing responsibility" for his obligation and were so termed (nekhasim she-ein lahem aḥarayut; Kid. 1:5), and the right of recovery from such assets was based on the creditor's personal right of recourse against the debtor (bk 11b; see also *Lien). The demands of developing commerce resulted in a substantive change in the concept of the contractual obligation in post-talmudic times; from an essentially real or property obligation it became an essentially personal one, with the property aspect subordinate to the personal (see Elon, Ha-Mishpat ha-Ivri, 1, p. 484).
Recovering Payment out of "Encumbered and Alienated" Assets (i.e., in the hands of a third party)
The creditor's above-mentioned lien over his debtor's property did not preclude the debtor from transferring the encumbered assets to a third party, except that any such transfer could be subject to the creditor's right to seize the assets from the transferee when seeking to enforce payment of the debt. At first this right did not extend to the debtor's chattels, since the creditor had no property right in them and his right of recovery from them derived merely from the debtor's personal obligation (see Beit ha-Beḥirah, bb 175b); thus they were beyond the creditor's reach once they had been transferred from the debtor's ownership (Ket. 92a). However, in the course of time, and with the changes in the economic circumstances of Jewish life, this distinction between land and chattels underwent substantial changes. Similarly, the general lien on the debtor's assets gave rise to many problems, concerning both the need to protect trade (takkanot ha-shuk) and the rights of third party purchasers, as well as the question of securing debts for the benefit of creditors, concerning which various *takkanot were enacted at different times (see *Lien).
Verbal and Written Obligations
Jewish law distinguishes between a verbal and a written obligation, termed in the Talmud a milveh be-al peh and a milveh bi-shetar, respectively (bb 175a; see also Sh. Ar., Ḥm 39:1, et al.). Although phrased in the language of loan, these terms are intended to embrace all obligations of whatever origin (see above). The distinction between the two forms of obligation relates to the weight of consequence accorded each one rather than to the substance of the obligation. This finds expression in two main respects:
(1) a written obligation entitles the creditor to recover payment out of the debtor's encumbered assets which are in the hands of a third party, a right unavailable in the case of a mere verbal obligation, since here the obligation or debt has no kol ("voice") and does not provide notice that will put prospective purchasers on their guard;
(2) in the case of a written obligation, a plea by the debtor that he has repaid the debt is not accepted without proof, whereas a plea of this kind is accepted without proof in the case of a verbal obligation (Shevu. 41b; Yad, Malveh 11:1, 15:1; Sh. Ar., Ḥm 70:1, 82:1; see also *Pleas).
The distinction between the two is not characterized by the mere fact of writing or its absence, and the fact that an obligation is recorded in a document does not of itself ensure the application of the special consequences attaching to a milveh bi-shetar. Thus, for example, an undertaking even in the debtor's own handwriting, but not signed by witnesses, will be treated as a milveh be-al peh, since only a properly written, witnessed, and signed obligation carries a "voice" and constitutes notice (bb 175b and codes). Similarly, since a written obligation affects the rights of the parties, it is not considered as such unless it has been drawn up and signed in accordance with the instructions of the parties (bb 40a and codes), and with the prior intention of constituting it a milveh bi-shetar and not simply an aide-memoire (Sh. Ar., Ḥm 61:10). Contrariwise, it is possible that a wholly verbal obligation can be treated as a written one, as in the case of sale of land before witnesses, when the purchaser from whom the land is seized may in turn exact the seller's responsibility to him out of encumbered and alienated assets sold by the latter (bb 41b). So too all verbal obligations claimed through, and upheld by, judgment of the court are treated as obligations by deed (bm 15a) which may be recovered out of encumbered and alienated assets, since in these circumstances they have a "voice" and constitute notice even if they are not evidenced in writing.
The Parties to an Obligation
From various scriptural sources it may be inferred that it is possible that an obligation may subsist toward a person unknown at the time (Josh. 15:16; i Sam. 17:25). This principle is also illustrated in this way: "he who says 'whoever shall bring me the tidings that my wife gave birth to a male child shall receive two hundred; that she gave birth to a female child a maneh'; [then] if she gives birth to a male he shall receive two hundred and if to a female child, he shall receive a maneh" (Tosef., bb 9:5; bb 141b). It was also followed in practice, in the case of a deed granted by the community in respect of the right to collect a tax, in which the name of the grantee was not specified at the time of signature, it being provided that certain communal officials would determine the person to acquire the right (Resp. Rosh no. 13:20).
Plurality of Creditors and Debtors
Both possibilities are allowed for in Jewish law. Most sources indicate that each of the co-debtors is responsible for his proportionate share only; e.g., if they borrow in a common deed (Tosef., bm 1:21), or guarantee a single debt (Tosef., bb 11:15; but cf. Yad, Malveh 25:10 and Sh. Ar., Ḥm 77:3 and commentators). In the same way a judgment of the court against one of the debtors does not of itself render the others liable (Rema, Ḥm 176:25). Some scholars sought to infer from another source that each of the debtors is liable for the whole amount of the debt (R. Yose, tj, Shevu. 5:1, 136a; Piskei ha-Rosh, ad loc., 2); but most of the posekim interpreted this source as prescribing that each of the debtors, in addition to the principal obligation for his proportionate share, is also liable as surety for the remainder of the debt upon default of the other debtors (Yad, Malveh 25:9; Tur and Sh. Ar., Ḥm 77:1, and see also commentators); the halakhah was decided accordingly.
A similar rule prevails with regard to liability for damage jointly caused by several tortfeasors, namely the apportionment of liability according to the degree of participation of each (bk 10b and codes). Opinions are divided in the codes on the question of whether each of the tortfeasors is also liable as surety for the shares of the others (Tur, Ḥm, 410:29 and Sh. Ar., Ḥm 410:37). Similarly, when a debt is owed to a number of creditors jointly, each of them is entitled to his proportionate share. Any one of them may claim payment of the whole amount in circumstances where it can be presumed that he is acting as an agent for his fellow creditors with regard to their shares (Ket. 94a and codes). Where there is no room for this presumption and one creditor wishes to claim recovery of his share alone, two possibilities exist: if the share of each of the creditors is known, each may separately claim his own share, e.g., in the case where a creditor is survived by a number of heirs, each claiming his known share; if the proportionate share owing to each creditor is unknown, none may separately claim recovery but must be joined in his claim by the remaining creditors (Sh. Ar., Ḥm 77:9–10 and Siftei Kohen ad loc., n. 25; Sh. Ar., Ḥm 176:25). This is also the law when the debt derives from tort.
Extinction of Obligation
An obligation is extinguished when it is fulfilled by the debtor, whether voluntarily or under compulsion by way of civil execution. (For the consequences of nonfulfillment of an obligation deriving from tort or contract see *Damages; *Tort; and *Contract.) An obligation also becomes extinguished, even if unfulfilled, when a release is granted by the creditor to the debtor (see *Meḥilah). According to Pentateuchal law, a *Jubilee year terminates certain obligations. *Hillel the Elder and his court instituted the prosbul, whereby the obligation continues to exist and is not wiped out in the seventh year (see also *Loans).
In the State of Israel
The law of obligations in the State of Israel is derived from numerous different sources: Ottoman and mandatory laws, as well as Israel legislation. English common law and equity is a further source of the Israel law of obligation whenever there is a "lacuna" in the existing law (s. 46, Palestine Order in Council, 1922–47). In recent years there has been increasing legislation in this field, showing to a certain extent the influence of Jewish law. (See also *State of Israel, Jewish Law in.) In some of these laws it is stated that the abovementioned section 46 no longer applies to them. See *Contract and Introduction.
The Obligation as an Undertaking
In the framework of the laws of obligations, a distinction is drawn between a statutory obligation (such as a tort) and a contractual obligation. In the framework of the contractual obligation, a distinction should be drawn between an obligation relating to price – consideration for the purchase of an object or a legal right (such as the obligation of the purchaser or the lessee to pay) and an obligation (or undertaking) that a person takes upon himself for his fellow, with no consideration. In the Talmud, we find several examples of such an obligation. Let us mention a few of them:
1. Ketubbah's Increment (tosefet ketubbah): a person undertakes to add to the minimum sum prescribed by law for his wife's kettubah (M. Ket. 5.1; Ket. 54b).
2. Obligation to Pay Maintenance: The undertaking of a person who marries a divorced woman or a widow to maintain her daughter (M. Ket. 11:1; Ket. 101b).
3. Obligation of a Tenant Farmer: The obligation of a tenant farmer, who undertook to work the field, to compensate the owners if he should leave the field untended. This is a type of obligation to pay a fine for violation of contract (m. bm 9:4; bm 104a).
4. Obligation of Bailees: The undertaking of a bailee to deviate from the biblical laws of bailees, for example an unpaid bailee who undertakes to pay even in the case of theft.
5. Guarantee (surety): A guarantor for a loan undertakes to pay the borrower's debt if the borrower does not pay himself (bb 173b, see *Surety).
This undertaking gives rise to a number of questions, some of which have been discussed in other entries, as will be mentioned below.
the mode of execution
A transaction is not concluded by words but by an act of acquisition (bm 49a; Yad, beginning of Hilkhot Mekhirah). What is the law in the case of an obligation: does it require an act of acquisition, and if so – what is the nature of the act? In several places, the gemara requires an act of acquisition in respect to obligations (see bm 58a; 94a; bb 3a). However, from the passage in Ket. 101b, we see that in the case of a person who says to another: "I owe you a certain amount by virtue of a deed," the debt is valid. The rishonim disagree as to the meaning of the passage. Rashi explains that it refers to a new obligation, and Ramban and Rashba interpret the passage as referring to an obligation by virtue of a deed. This is also the approach of Rabbenu Tam (Tos. to Ket. 102a, s.v.aliba). Maimonides, however, says that the reference is to an oral obligation, if it is uttered according to a certain formula in the presence of witnesses (Yad, Mekhirah 11:15). Accordingly, an oral obligation is also possible (see Sh. Ar., Ḥm 40:1), and only a conditional obligation requires an act of acquisition (Siftei Kohen, ibid. 3–4). Keẓot ha-Ḥoshen ad loc., however, explains that Maimonides is referring to an acquisition by way of admission (see: *Admission, *Wills), which is one of the modes of acquisition, when it is said, in terms of an admission: "I am indebted"; however, if the person says, "I undertake," an act of acquisition or a deed is required. The normal form of acquisition in relation to an obligation is kinyan sudar – acquisition by symbolic barter (see *Acquisition).
"the particular benefit."
In several places, the gemara indicates that an obligation is valid following a benefit derived by the obligee. For example, parents-in-law may make a mutual undertaking when they negotiate over what they each will supply for their children's needs, and the gemara states that "these are in the category of things that are acquired orally" because of the mutual benefit of the parties from the union between them (see Ket. 102b). Similarly in the case of the above-mentioned bailee who takes upon himself a liability beyond that specified by law, the gemara cites an opinion, which acquired the status of halakhah, that his obligation is effected without kinyan due to the benefit of the trust that was placed in him (see bm 94a). The same applies in relation to a guarantee: the obligation is valid without an act of acquisition because of the benefit to the effect that the lender relied upon him (bb 173b).
Ritba, one of the great rishonim, extends this idea to other obligations that a person takes upon himself, when he is determined to pay even though there has been no act of acquisition, due to his benefit from the fact that the other person laid out money and relied on him that he would not lose his money. Thus he explains the obligation of an employer to pay the employee if he retracted and caused the latter a loss, even in the absence of a specific contract relating to violation (Nov. Ritba bm 74a.)
Other commentators had recourse to this approach in extending the ambit of obligations. Let us cite a contemporary example. In the case of parents who adopt a child, even if they have not performed an act of acquisition which requires them to maintain him, some authorities obligate them to maintain him by virtue of their benefit in receiving the child (see Teḥumin 15, p. 278).
the contents of the obligation
Is it possible to obligate oneself with respect to all things, or only with respect to a transfer of money in which a charge is placed on the obligee's property? The gemara (bb 3a) explains that a contract made by partners for division in a courtyard is not valid, because it falls within the category of kinyan devarim be-alma – a kinyan over mere words, a promise which has no legal validity, and which does not apply to anything (see Rashi and Rosh ad loc.) At the same time, other sources indicate that an obligation can have validity even when no property is charged, such as a poor groom who undertakes to pay more than the required minimum for his wife's kettubah (marriage deed), even though he has no money. On this basis, some understood that the person making the obligation pledges his body, like a worker who pledges his body to his work (see Tos. to Ket. 54b). On the tension between the in rem element and the in personem element of the obligation, and the transition to the personal aspect, see *Obligations. In any case, according to many opinions, the monetary undertaking is valid, and therefore an undertaking to divorce falls within the category of an oral act of acquisition (Terumat Hadeshen, Pesakim 163; Sema, Ḥm 195:16). Consequently, an undertaking to marry is not valid (Sema, Ḥm 243:12; pdr 4, p. 374, 377). Similarly, a negative undertaking, to desist from an action, is problematic (see Resp. Divrei Ḥayyim 31; pdr 3 p. 336.).
In order to overcome the constraints of the contract, and particularly the problem of oral acts of acquisition, certain bypass routes were devised:
Making the Act Contingent upon a Monetary Obligation
The prospective groom does not undertake to marry, but rather, to pay a sum of money if he should not marry by the set date. Thus, for example, Tashbez (1:94) explains the validity of the undertaking of a husband not to marry a second wife without his (first) wife's approval, even if it should transpire that she is barren. This is not a negative obligation – an obligation not to marry the (second) woman – but rather an undertaking to pay the first wife compensation if he should marry another woman in addition to her. The practice, in a match-making agreement, is to undertake to pay a fine for violation of the agreement, since the agreement to marry is considered to be an oral act of acquisition (Sema, ibid.). This is how the Maggid Mishneh explains the position of Maimonides (Yad, Malveh ve-Loveh 25:14) whereby a guarantor for a body – to bring the debtor to the creditor – actually means only that the person guarantee to pay if he does not produce the debtor. In our times, there are those who propose adopting this approach as a means of exerting pressure on a recalcitrant husband, by means of signing a pre-nuptial agreement, in which the husband does not undertake to divorce, but to pay a large amount of maintenance if he should separate from his wife under certain circumstances (see Naḥalat Shiva 9; Teḥumin 21 pp. 279–339; and see *Ketubbah).
Oath and Ḥerem (excommunication)
Even if a non-monetary obligation is not valid, an oath or vow to the same effect is valid. These are religious undertakings to stand by one's word vis-à-vis Heaven. Therefore, some authorities had recourse to this legal institution in order to validate several kinds of contracts. According to Rema, for example (yd. 264:1), the undertaking of a father to hand over his son to a particular mohel (circumcisor) for circumcision should be strengthened by a ḥerem or a handshake which is similar to an oath. To this day, the practice in Sephardi marriage deeds is that the husband takes upon himself not to marry a second wife without the (first) wife's consent (see Resp. Yabia Omer 7:2). The ḥerem, which is like an oath, was also invoked in relation to a violation of a matchmaking agreement, as mentioned above. Now, a vow or an oath to another must be formulated appropriately, and not in terms of a promise, but if a person promises a contribution to a dedicated fund or to a charity for the poor, even if what he promises does not yet exist, the promise is valid even without an act of acquisition, like an oath (see Yad, Mekhirah 22:17, and Tur, Sh. Ar., Ḥm 212:7–9). A promise to fulfill a mitzvah also is valid by virtue of the laws of vows or oaths (see Rema, yd. 213:2).
obligation by virtue of custom
On the force of custom, see *Custom. Some authorities hold that even a contract which is not binding, such as one secured by an oral kinyan, will be binding if it is acted upon as if binding. Some authorities thus validated the father's undertaking to hand over his son to a particular circumcisor by virtue of custom (see Pitḥei Teshuvah, Ḥm. 201:2 and pdr 6 pp. 315–23). This approach is particularly important in relation to the sale of "a thing which is not concrete." Objects may be sold, but it is not simple to sell rights, and in particular, intangible rights such as the right of passage or right of residence or copyright. Nevertheless, some authorities allowed these transactions by virtue of custom: see Pitḥei Teshuvah (Ḥm 212:1–2).
a public act
The statements of a number of rishonim indicate that a contract, one of the parties to which is a plurality or a public representative, is not bound by the normal rules of Contract law. Not only is an act of acquisition unnecessary, but there are also no other constraints, such as those relating to something which does not yet exist, or an oral kinyan. Therefore, a group that hired a tutor – without any act of kinyan – may not retract (see Resp. Rosh. Nos. 6, 19, 21; Ḥm 204:9; Rema, Ḥm 22:1; 81:1; 163:6). For this reason, the undertaking of a member of the City Council to resign under certain circumstances, despite constituting an oral kinyan, is valid, for it relates to the public (pdr 6, p. 166).
breach of contract
What relief is available to a party injured by breach of contract? In some cases, he is entitled to void the contract (see Sh. Ar., yd. 236:6). According to some authorities, this applies only in the case of breach of a fundamental clause (Taz, ibid. 13), such as a person who purchased goods in order to sell them at a fair, but the seller was late in delivery. There are others who disagree and hold that the criterion is whether the person making the undertaking made his debt contingent upon the fulfillment of this condition, and in that case, he is exempt, even though the other party did not fulfill his obligation as a result of coercion. If this is not the case, however, he must fulfill his obligation (Siftei Kohen on Nekudot ha-Kessef, ibid.).
Specific Performance or Compensation.
What is the relief for breach of contract? If the contract is valid, an obligation exists to execute it. At times, it is difficult to execute, and money may be obtained from the party in breach. Thus, for example, an employer or employee who violates an employment contract will be obligated to pay (monetary compensation to) the injured party, see *Employment. When a person undertook to sell his house to one person but proceeds to sell it to another, then according to some authorities, the sale to the second person is valid, for a real right takes precedence over an obligation, but the seller must pay compensation to the first "buyer" in respect of whom he breached the contract (Netivotha-Mishpat 39:17). There is, however, an opinion whereby the first undertaking prevails (Resp. Mahara Sasson, 133). Indeed, some authorities hold that this obligation falls within the category of an oral kinyan, unless he took upon himself responsibility for the members of the household (Keẓot ha-Ḥoshen 203:2).
If a person says that he will sell his house but did not obligate himself expressly to do so, we are faced with the question that was disputed by the rishonim as to whether acquisition through uttering the words "I will give" is valid. Some authorities hold that it is not valid, and it is only a vague promise (Resp. Rif, Leiter edition 14), and others hold that the contract is valid, because the assessment is that the person intended to obligate himself (Resp. Rashba 1:1003).
With respect to an obligation to make a payment, a charge is placed on the property, and therefore the heir repays the debts of the deceased from that property. However, the Shulhan Arukh rules that the heir also pays up from land that he inherited even if it was not mortgaged during the lifetime of the legator, for "a son stands in place of his father" (see Sh. Ar., Ḥm 107:1; Sema and Be'ur ha-Gra ibid.) There is also a commandment – one which is not forced upon a person – to pay out of movable property that was inherited, by virtue of the law of honoring one's parents. Indeed, the geonim made an enactment whereby a debt could be claimed from movable property, even if the property was not charged to the debt (Shulkhan Arukh, ibid.), and see also the entry: *Succession.
An obligation which was made as a result of coercion, without absolute volition, is not valid (Sema, Ḥm 205:28). However, if consideration was promised by the coercer, some authorities hold that it will be valid (Maharik, no. 118), and others say that it will not be valid (Resp. Ḥemdat Shelomo 13).
"I was not serious."
Sometimes, a person makes an undertaking in the heat of the moment, and he is in something like a situation of coercion, e.g., a person who escapes from prison and reaches the banks of the river, where a barge is moored, and the boatman negotiates with him a higher price than normal: the debtor can later say, "I was not serious." The same applies in relation to a yevamah (a woman obliged to undergo *levirate marriage) whose brother-in-law was corrupt and demanded that she pay him an amount of money in order that he release her: she is entitled to retract her obligation with the same claim (Yev. 106a; Ḥm 264:7). According to some authorities, this applies only when the other person is commanded to act in this way on his behalf; but where there is no commandment, he is obligated to the full extent of his undertaking (Mordekhai on bk 174, and see pdr 14, p. 43). Some authorities hold that if there was an act of acquisition, he cannot say, "I was not serious"; others disagree (see Keẓot ha-Ḥoshen 81:4, and Netivot ha-Mishpat 264:8).
In the case of a person who made an undertaking towards another person, and due to an unusual accident (i.e., a situation of coercion), he cannot uphold his undertaking, some authorities exempt him, as if he had made a condition to that effect (Taz, eh 114:2); others hold that coercion does not constitute grounds for exemption from an obligation, and he is like a borrower who became impoverished, since a charge had already been placed on his property (Avnei Millu'im, ibid. 2).
frustration of contract
In the case of a person who undertook to work, but it became impossible to do so, and he is not able to fulfill his obligation; for example, he undertook to water a field from the river, and the river dried up, or conversely, the river flooded the field by itself, or he undertook to transfer barrels from a ship and the ship sank, several opinions have been voiced on the question of who should bear the loss (see Sh. Ar., Ḥm. 334; and see *Employment).
time in the contract
A continuing contract in which no particular time has been set for execution is a subject of dispute amongst the rishonim. For example, if a person undertakes the maintenance of another person, some authorities hold that he is required to support him as long as he is in need, but others say that he is exempt from his obligation after one year (Rema, Ḥm 60:3).
If no time has been specified for execution of the contract, it must be executed at the first opportunity, e.g., a person who undertakes to maintain his wife's daughter for five years must do so in the first five years (Siftei Kohen, Ḥm 42:19).
[Itamar Warhaftig (2nd ed.)]
L. Auerbach, Das juedische Obligationsrecht, 1 (1870), 159ff.; I.S. Zuri, Mishpat ha-Talmud, 5 (1921); Gulak, Yesodei, 2 (1922), 3–30, 83–88, 105–18; idem, in: Madda'ei ha-Yahadut, 1 (1925/26), 46–48; idem, Toledot ha-Mishpat be-Yisrael bi-Tekufat ha-Talmud, 1 (Ha-Ḥiyyuv ve-Shibudav, 1939), 1–2, 15–52, 88–96; Herzog, Instit, 2 (1939); M. Silberg, Kakh Darko shel Talmud (1961), 71–75. add. bibliography: M. Elon, Kevod ha-Adam ve-Heruto be-Darkhei Hoẓa'ah le-Po'al (2000); idem, Ha-Mishpat ha-Ivri (1988), 1: 69f, 97, 104, 129f., 193, 195f., 327f., 354, 405, 417, 476, 479, 482f., 486f., 487f., 562, 572, 581, 596, 610, 623, 653, 663, 666, 715, 740f., 766; 2:867; idem, Jewish Law (1994), 1:76f., 109, 117, 145f., 217, 219f., 391f., 427; 2:495, 509, 586, 584, 587f., 591f., 593f., 683, 705, 715, 737, 754, 770, 808, 820, 823, 883, 912f., 943; 3:1059; A. Gulak, Ha-Ḥiyyuv ve-Shi'abudav (1939); S. Warhaftig, Dinei Ḥozim ba-Mishpat ha-Ivri (1974); B. Lifshitz, Asmakhta – Ḥiyyuv ve-Kinyan ba-Mishpat ha-Ivri (1988); Y. Bloi, Pitḥei Ḥoshen – (Dinei Kinyanim) (2004), ch. 18; I. Warhaftig, Ha-Hitḥayyevut (2001).