Shabbat Parashat Naso| 5766
Mishpat Ve halacha Be Israel - Part XII - An Act of Acquisition for the Arbitration Agreement - Harav Sinai Levi
We continue the series on the workings of our newly formed beit din
The final paragraph of our arbitration agreement reads as follows: “The sides hereby affirm and admit that they carried out a halachically valid kinyan (act of acquisition or finalization) in an esteemed beit din on all of their obligations in every paragraph of this agreement, in accordance with the seriousness of all conditions and the seriousness of all documents.” We will focus on a few of the phrases in this paragraph and explain why they are needed.
“The sides affirm and admit”- Halachically, one who admits in front of witnesses or with his signature the truth of a certain legal status becomes obligated in the circumstances of the admission. Interestingly, this occurs even if the matter that he admits never occurred. If the situation did not previously exist, the admission creates the legal/halachic circumstances of the situation.
The source of this concept, known as kinyan odita, is the gemara, Bava Batra 149a. Isur Giora wanted to transfer some of his money that was by someone else to his son, but he was unable to do so physically. The solution was raised that he would do an odita. In other words, he admitted in front of witnesses that the money that had been his now belonged to his son. This ostensibly false statement thus became true. In our case, then, even if an act of kinyan did not take place, it is as if it did (see Shulchan Aruch, Choshen Mishpat 40:1 and K’tzot Hachoshen, ad loc.).
“… a halachically valid kinyan”- There are two reasons that a kinyan is needed to confirm the arbitration. One is to confirm the jurisdiction of the arbitration panel (see Shulchan Aruch and Rama, CM 13:2). It is also needed for the expansion of beit din’sauthority, as specified by this arbitration agreement. Although some of the obligations can be created by the kinyan engendered by the document itself, other elements require a kinyan sudar (transfer of a utensil).
“… in an esteemed beit din”- This phrase is designed to give validity to an obligation that one might be able to claim was an asmachta. Asmachta is an obligation or a transaction that a person accepts upon himself under certain conditions that he likely never expected would occur. In this situation, we have reason to doubt if there was sufficient gemirut da’at (resolve) to effect the transaction or obligation. The gemara (Nedarim 27a) says that a kinyan done in front of an esteemed beit din overcomes the problem of asmachta by raising the level of gemirut da’at. It impresses upon the side(s) the reality that the conditions under which he will have to keep his obligation may arise. Some of the provisions of the arbitration agreement, specifically those that may go beyond the letter of the law (see previous articles) may be under the category of asmachta and are remedied in this way.
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