In our last lesson we discussed the penalty aspect of asmachtah. The lesson stated: "There is also the penalty event. We discussed one aspect of the penalty event, where the condition is an act solely within the control of the promisor to perform. There are other aspects to this type of asmachtah.

I would like to discuss a related topic, that of gambling obligations. Before setting forth the halachah regarding the enforceability of gambling losses, I would like to set forth a few quotations from Maimonides regarding gambling.

In Laws Dealing with Robbery and Lost Property, chapter 6, he writes:
7. The Sages have prohibited certain courses of conduct as being forms of robbery. If a person does these things, he is considered a robber by the authority of the Rabbis. For example, pigeon fliers [who bet on the outcome of their races] and dice players, losers by their own free will the person is deemed a robber on the authority of the Rabbis. Since he takes the money from the others without doing anything except the game, he is deemed a robber. Similarly if they bet on which animal or bird can run faster and the winner will receive a set amount or make any other similar type of bet, this is forbidden and deemed robbery by the authority of the Rabbis. In Laws of Evidence, chapter 10, law 4, Maimonides writes: A dice player is not qualified [to testify in Beth Din] if he has no other livelihood. Since he does not contribute anything for the welfare of society, the assumption is that he makes his livelihood only from dice playing, which is a form of robbery. This holds true not only for dice players but also for those who gamble with nutshells and pomegranate peels, ...and to those who bet on animal, beasts, or bird racing ...provided that the person has no other occupation.

Assuming that one does gamble, what are the rights of the winner to collect his winnings from the losers? It was stated above that gambling cases may not be asmachtah since the gambler, before beginning the game, has the requisite intent to be bound by his promise to pay the other party on the condition that the other party is the winner. There is an opinion that gambling is not asmachtah if the players, by an act of kinyan, agree that losers shall pay the winners the amount of money lost. If they are playing on credit, that is, they will pay when the entire gambling has been completed as evidenced by a score sheet, or they will pay some time in the future, this is asmachtah and not binding (if no kinyan has been performed). If they are playing on credit, the losers are not obligated to pay the winners even if collateral security has been given by all of the players to ensure that they will pay if they lose. If there is no underlying debt, there is no collateral supported by debt and the right to the security does not exist.

This is not to be confused with a kinyan for the moneys to belong to the winner, since moneys cannot be acquired with a kinyan of handing over a handkerchief. Since the average gambler is little likely to know this distinction gamblers can bind themselves to pay the winners by a handshake. That is equivalent to a handshake in buying and selling in those places where the custom to conclude a sale is by handshake. Or else the handshake may be equivalent to an oath to pay the winner and this is binding even in situations where there is asmachtah. If the players are playing for cash and they place their money on the table and move the money from one to another along the table, this is not asmachtah. The intermingling of the moneys is the equivalent of a kinyan. There is an opinion that holds that the table must belong to all of them to make it binding for the winner to take the win- nings. The majority view, however, is that by all of them playing on this table, they all are deemed to have a share in the table for the purpose of the games. They are deemed partners by the pleasure each derives from playing and sharing his pleasure with the other players.

In those situations where gambling is held to be asmachtah, this holds true even if the players at the outset stated that the winner should acquire the winnings ''as of now."

Reuven sues Shimon for $100. Shimon defends on the grounds that Reuven's claim is for a gambling debt in which the gamblers gambled on credit and therefore it is asmachtah and not collectible. If there are witnesses to support the loser's allegation or if the winner admits this, then judgment will be entered in favor of Shimon.

However, if there are no witnesses to support Shimon's contention and Reuven claims that the debt is from a legitimate business or from a loan, then there are several possibilities. If there are two witnesses who can testify that Shimon admitted to them that he owes Reuven $100 not from a gambling debt, judgment will be rendered in favor of Reuven. If there is one witness who can testify that Shimon admitted to him that he owes Reuven $100 not arising from a gambling debt, Shimon may take a Torah oath and win the case. If there is no person to testify that Shimon had in his presence admitted owing Reuven $100, Shimon will take a hesseth oath and win the lawsuit.

Reuven makes a promise to Shimon that is asmachtah and thus Shimon cannot enforce the promise against Reuven. Shimon asks Reuven to bind himself to the promise by means taking an oath that he will fulfill his promise. Or Shimon may ask Reuven to bind himself with a handshake in those communities where a handshake signifies acceptance of an obligation to fulfill a promise. There is an opinion that such actions make the promise binding on Reuven even though it is asmachtah. The same applies to a document if the promisor writes that he is bound to his promise under the gravity of excommunication and by a Torah oath. The oath binds only the promisor, not his heirs if the promisor dies. If the promisee dies the promise must be kept for the benefit of the promisee's heirs.

If a person vows a gift to charity or to poor persons, even if the promise is asmachtah, he is bound to keep his promise. If the poor person dies, the promisor need not give the gift to his children.

After having read these last few lessons dealing with asmactah, when you hear these words being recited at a wedding toward the end of the reading of the kethubah, I hope you have a better under- standing why those words are included in the kethubah.

The subject matter of this lesson is more fully presented in Volume VI Chapters 207 of"A Restatement of Rabbinic Civil Law" by E. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores. Questions to quint@inter.net.il

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