Lesson # 52 (cont. from #51) - Formation of Contracts - Mere words effectuate a contract

In the last lesson, six of the ten cases mentioned in Rabbinic literature where mere words can become binding on the declarant were stated. In this lesson the remaining four cases are discussed. In last week's lesson the six cases demonstrate that there are situations in which the mere declaration together with the hanahah will be sufficient to bind the person making the declaration. In the next four cases, the declaration is binding without even the necessity of hahanah. (In last week's lesson "Hanahah" was translated to refer to the psychological benefit. The psychological benefit that the obligor derives from the agreement is determined by society to make the agreement binding on the party.

[7] Case in which the declarant is bound without any hanaha to him. This case is covered in Lesson 47 (TT429). This is a situation in which the declarant states that he is obligated to someone. For example, Reuven, in the presence of witnesses, states that he owes Shimon $100. There is actually no such debt prior to Reuven's declaration. Reuven, Shimon and the people who hear the declaration know that there is no actual debt extant prior to the declaration. In this case there is ordinarily no hanahah flowing to the declarant. It is because of this that some authorities hold that this admission does not effect an obligation against the debtor without a kinyan. But even these authorities admit that if the declarant states that the debt was already in existence, although there was no such debt, that the declaration is binding on the debtor. Here the new assumed debt becomes binding since a person may do with his property what he pleases. Thus mere words can dispose of his property.

[8] Case in which one of the parties is a community. Mordechai ben Hillel who lived in Germany from 1240 until 1298, was the author of a code of halachah that was greatly relied upon by subsequent codifiers and respondents. His codes appear toward the back of the printed editions of the Talmud. Mordechai was asked whether a community that had engaged a teacher could back out of the agreement prior to the teacher having commenced his work. This appears in Baba Mezia, secondary glosses to Chapter 6, sections 457 and 458. He answered that if the community, or any large group, or representatives thereof, if they are acting on behalf of the group, they may not rescind their oral agreement even if no kinyan was made. In the case of individuals, however, the agreement would not be binding until the teacher has actually commenced work. It would seem that Mordechai's reasoning could be extended so that the teacher also could not rescind the agreement. Mordechai was a student of Rabbi Meir of Rottenberg, as was Asheri, who lived in Germany and then in Spain (1250-1327). Asheri was asked (Responsa, chapter 6, responsum 19) about a taxpayer who had entered into an oral agreement with the city authorities to absolve him from paying some local taxes, since he also paid taxes in another community. Could the community rescind the tax exemption granted to him? Asheri answered that all agreements entered into by a community or its representatives were binding on the community, even if its members had not entered into a formal kinyan. Agreements made by the community are equivalent to their having been written and transmitted to the other side.

[9] Case of the Holy Temple as a party. The Talmud, in the first chapter of Kiddushin describes the methods of transferring property, real or personal. In a Mishna on page 28b, it is stated that the (oral) dedication of property to the Holy Temple is the equivalent of the delivery of the property in the case of an individual. In the case of an individual transfer of ownership takes place with the actual delivery of the property to the beneficiary or buyer, or with the performance of a kinyan, or with a deed for real property. If the beneficiary is the Holy Temple, the declaration is the equivalent of delivery or any of the other methods of transfer used by individuals. The transfer by dedication is effective from individuals to the Holy Temple, but not the other way. The Holy Temple cannot transfer property to individuals with a simple declaration. One theory advanced why the mere declaration is sufficient to transfer ownership to the Holy Temple is that since the Earth is the Lord's (Psalms 24:1) everything is his courtyard to acquire objects for Him.

[10] Case of gifts causa mortis. A gift causa mortis is a gift made by a dying person in contemplation of death. In Gittin 13b, the Talmud teaches that the words of the dying person are to be given effect as if his words had been written down and the writing delivered to the beneficiary, even if no kinyan was made. The reason is that the dying man should not have the anguish of not knowing whether his wishes for the disposition of his property will be followed after his death. This of course applies if the dying person died from the illness for which he is confined. If he died from some other reason, then his gifts are not valid if no kinyan was made. For example, the dying person made a declaration of how to dispose of all of his property and he was then to be moved to the hospital. The ambulance carrying him was involved in an accident and he died as a result of injuries sustained in the accident. The gifts he orally made would not be given effect since he did not die of that illness and there was no kinyan made to transfer his property.

Ownership of the gifts given by the dying individual take effect only after death. Therefore, the dowry of the wife and the maintenance of the widow can be collected from the donees, because at his death his property becomes liable for the dowry of his wife and maintenance. The dying individual can orally retract any of these gifts. He may make a series of gifts of all of his property at 9:00am and at 10:00am he may make a later disposition of his property and his later disposition is followed. He may annul all of the gifts that he has made. If he recovers, all of the gifts that he made by declaration, are null and void. If he makes these gifts on Chol HaMoed, when one cannot ordinarily write, his instructions may be written down, since failure to write them down may cause undue loss to the beneficiaries if the heirs contest the gifts.

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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