Contracts form obligations between the parties to the contract. Contracts are entered into every moment of every day. Much of the commerce of the world depends upon contracts, whether between nations, such as Israel will supply China with sophisticated electronics on warplanes, or a house painter signing a contract to paint someoneֶs house for a certain amount of money.

A contract of sale differs from a sale in that the contract contemplates that the ownership of the item will pass in the future, while a sale passes ownership at the time it occurs.

In halachah, as in most legal systems, there must be an act that binds the parties to the contract. In some societies, the signing of the contract binds the parties. In halachah, the parties are usually bound by performing a kinyan. (See TT 428) If both parties have undertaken obligations, both have to perform a kinyan. Such as, Reuven will paint Shimonֶs house and Shimon undertakes to pay Reuven $100 for the paint job. Reuven is the obligor to paint the house and Shimon is the obligor to pay the money. Reuven picks up Shimonֶs pen and Shimon picks up Reuvenֶs pen; both are bound.

In halachah there are several exceptions in which the psychological benefit flowing to the obligor may bind him to perform even though a formal act of kinyan has not been performed. These will be discussed commencing in the next lesson.

In halachah, it is not necessary to the validity of a contact that it be in writing. But the better practice, from the point of view of proof in the event of a misunderstanding or dispute, is, that the contract be witnessed and be reduced to writing and signed by witnesses.

In halachah there cannot be a sale of a thing not yet in existence. There may however, be a contract for delivery of things not in existence. Thus, wheat that has not been planted cannot be sold. Reuven says to Shimon, that Reuven sells to Shimon the wheat that Reuven will plant next year. (A contract for wheat futures.) This sale is not valid. There can, however, be a contract whereby Reuven obligates himself to deliver or to sell to Shimon the wheat that Reuven will grow next year.

This distinction occurs in Tosafoth written in the 12th century. (See Tosafoth T. Kethuboth 54b.) Tosafoth asks how a young bridegroom who does not have any money can obligate himself to pay a kethubah for $200 if he divorces his wife, or his estate will pay her $200 if he dies? The answer given is, he (and his estate) is obligated by the bridegroom undertaking an obligation with a kinyan, that is, it is a personal obligation for him to fulfill. The obligor becomes bound if, while performing a kinyan, expresses his obligation in terms of פI hereby obligate myself to deliver.צ Once the obligation has bound by the performance of a kinyan the obligor may not withdraw even if the thing to be delivered is not in existence. (For all intents and purposes the concept of binding contracts as we know it today did not appear in the English common law until Sladesֶ case, around 1602.)

There is a difference of opinion as to whether a person can obligate himself to a person not in existence. For example, obligating oneself to build a house for a person not yet born; פif you will get married and have a child, I will build the child a house.צ There is also a difference of opinion as to whether a person may obligate himself not to do an act; פI hereby undertake not to play for the other team.צ

According to the majority view, partnership agreements are also entered into by the method of kinyan. Each partner obligates himself to perform certain acts on behalf of he partnership and to turn over to the partnership the income earned on behalf of the partnership which income is then to be divided according to the terms of the partnership agreement.

That which has been said regarding things not in existence also applies to things not in the possession of the obligor. There are certain exceptions to a personֶs ability to obligate himself to deliver an object not yet in existence or not in his possession. For example, if a person wants to obligate himself to sell a house or any unique item that he does not own, but which belongs to a third party. His undertaking is of no legal consequence, even if made with a kinyan and using words of obligation, since the possibility exists that the third party will not sell the house or unique item to him. There are those who hold that if the obligor obtains the house then he is obligated to sell it to the obligee. But if the thing that he undertakes to sell is readily available in the marketplace, then the obligation is binding on the obligor.

According to Maimonides, if someone obligates himself to perform or to deliver a thing that is not specific, the obligor is not liable under the contract. For example, if the obligor obligates himself with a kinyan to feed or clothe Reuven for five years, his promise is illusory and not binding. Although the time is specified, the the amount of he food and clothing is not specified, and this is all the more true if the amount of years is not specified. Beth Din, however, will attempt to give meaning to the promise. A few examples, in all of which the obligation was undertaken with the performance of a kinyan by Reuven:

Reuven obligates himself to feed or to provide for all of Shimonֶs need according to his position. Beth Din will appraise the manner to which Shimon was accustomed to eating and living.

If Reuven obligates himself to feed Shimon, then it is inferred that he meant to do so for all of the days of Shimonֶs life, or for at least such time as is necessary.

If Reuven obligates himself to feed Shimon or to give him $100, and he does feed him for a while and then stops. He need not pay Shimon the $100, but need only give him the $100 less the amount of the food that he had already supplied. The intent was to pay Shimon $100 if Reuven did not feed him at all.

Reuven obligates himself to feed Shimon and Shimonֶs wife. After he commences feeding them, Shimonֶs wife dies. Reuven is not obligated to pay Shimon, who is his wifeֶs heir, the money that Reuven would have used to feed the wife had she not died. There is an opinion that if Reuven specified a sum certain to be used for the feeding of Shimonֶs wife and then she died, then Shimon, as her heir, can collect the balance.

Reuven obligates himself to feed Shimon at his table and after some time Reuven dies. The heirs of Reuven must continue to feed Shimon out of the estate. The heirs may insist that Shimon eat at their table.

In all of these cases the promisor obligated himself by performing a kinyan, which made the promise binding. IYH, next week there will be discussed some of the cases in which mere words can effectuate a contract.

Freida Makrov, who read that I am in the business of selling bridges, (see TT 428) asked if I can sell the Manhattan Bridge for her using my kinyan pen. Anyone interested?

The subject matter of this lesson is more fully discussed in Volume 2, Chapter 60 of A Restatement of Rabbinic Civil Law by E. Quint and on sale at local Judaica bookstores.

Address comments to quint@inter.net.il

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