You are at a wedding, as a guest or as a participant, such a the bride or groom. The kethubah is being read. You don't under- stand too much as to what is being read. Toward the end the reader recites "d'luh k'asmachtah", that is the terms of the kethubah are not to be considered as "asmachtah". What does that mean?

There are many different views by the authorities how to define asmachtah. I have attempted to use definitions and concepts accepted by the majority of authorities.

When there is a promise made by one person to another person, the person making the promise is the promisor and the person to whom the promise is made is the promisee.

(1) One definition of asmachtah is that a person makes a promise or undertakes an obligation conditioned upon the occurrence of an event that he is certain in his own mind will never happen. He does not even remotely anticipate ever having to perform the promise or obligation based on this condition (the "remote event").

(2) Forgiveness of another party's obligation in the event that the remote event occurs might be another form of asmachtah.

(3) Another definition of asmachtah is that the promisor convinces the promisee to rely on his promise on the condition that the promissor makes a certain thing happen, and if it does not happen the promisor will give the promisee a windfall. This latter view is in the nature of a penalty that the promisor will pay to the promisee if the promisor does not perform (the "penalty event").

The definitions are at opposite ends of a person's thinking. Under the first definition, the promisor is almost certain that the condition will not happen and thus he will not have to perform; it is hyperbole. Under the third definition the promisor is almost certain that the condition, the thing he promised, will happen and thus he will not have to pay the penalty.
There are those authorities who define asmachtah as a promise made where the promisor exaggerates the thing he will perform if a condition is not met

In the Talmud there are opposing views as to whether asmachtah effects a transfer or obligation. According to one opinion, if a person makes a binding promise, he must live up to his word if the condition is met. According to a second opinion, asmachtah is not binding since there is lacking the requisite intent of the promisor who is certain that the condition will never happen so that he will never have to perform; without requisite intent to be bound, a promise is not binding. The halachah is that asmachtah is not binding. That is why the clause that the ketubah is not an asmachtah document. This holds true even if the promisor binds himself by a kinyan, and/or witnesses are present when he makes the promise, and/or it is in writing. The question arises as to which promises are considered asmachtah and not binding. Thus if the promisor desires to be relieved of his promise he must prove to Beth Din that his promise is under the rubric of asmachtah and not binding on him.

Let's examine the remote event. Because of many years of inadequate rainfall the level of the Kinneret was quite low as this winter season started. Shimon tells his wealthy neighbor, Reuven, that he heard that if the level of the Kinneret would rise by 5.32 meters to the point of overflowing, that the police would permit certain high speed motor boats to sail the Kinneret. And Shimon said that he wishes he could afford such a speedboat. Shimon said that he thinks that the level of overflowing would be achieved, although all the experts said it could not be done in one year even with continuous rainstorms until the end of the rainy season. Reuven who has also been following the news about the level of the Kinneret knows that no matter how much rain will fall this winter, the level of the Kinneret cannot climb to overflowing. This is the unanimous opinion of all the water engineers at the Israel Meteorological Service. Reuven tells Shimon that if the water reaches the overflowing mark that he, Reuven will buy Shimon a high speed motorboat. For the first time since the keeping of rainfall records, there is continuous rain over the Kinneret each day sixty consecutive days with each day bringing many inches of rain so that with a final freak June rainfall the level of he Kinnert reaches the overflow mark. Shimon now demands that Reuven buy his the speedboat. Reuven defends on the grounds that his promise was made on the assumption that the condition would never be fulfilled, since all the meteorologists said this could not happen. Thus Reuven claims that his promise was asmachtah and not binding. Since all the experts were certain that the Kinneret would not fill up this year, and Reuven was aware of this when he made his promise. The promise is not binding.

There is also the penalty event. The penalty aspect of asmachtah can be divided into three types of acts: acts: (1) the condition is an act solely within the control of the promisor to perform: and (2) the condition is an act beyond the control of the promisor to perform, or even if within the control of the promisor to perform the penalty is exaggerated; and (3) the condition is an act beyond the control of both the promisor and any third party to perform. We shall discuss only (1) in this lesson and (2) and (3) in the next lesson IYH.

(1) A condition dependent upon an act solely within the control of the promisor is generally not asmachtah. The promisor is certain that he will comply with the condition and thus his current intent when he makes the promise is to perform when the condition is met. Even in this situation there are times when the promise is deemed to be without intent. If the promisor's payment to be paid if he fails to perform the condition is a reasonable sum for the damages caused by his nonperformance of the promise, it is considered to be reasonable liquidated damages and will be enforced: it is not in the category of asmachtah. However, if the amount promised by the promisor for his failure to perform the condition is out of proportion to the damages suffered by the promisee, it will be deemed a penalty payment and not enforced since it is asmachtah, under category (3), below.

For example:
(a) The promisor agrees to be a share- cropper on one acre of the promisee's land and to pay the promisee/landlord $30 as rent. This is the normal anticipated rent for an acre of land since it is conditioned upon a crop of about 100 bushels for the acre at a normal price of a dollar for a bushel, and the normal rental is 30 percent. The sharecropper lets the land lie fallow. He must pay the promisee/landlord the $30 even though the land did not produce the 100 bushels.
(b) The promisor promises to give a gift to Reuven and if Reuven dies before the gift is given, to give it to Reuven's son. This is not asmachtah as far as the son is concerned since the giving of the gift is within the control of the promisor. But to whom to give the gift is in the hands of God.
The subject matter of this lesson is more fully presented in Volume VI Chapters 207 of"A Restatement of Rabbinic Civil Law" byE. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores.
Questions to quint@inter.net.il

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