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Shabbat Parashat Acharei Mot Kedoshim 5780

P'ninat Mishpat: Holding Guarantors to their Commitment? part I

(based on ruling 71055 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The plaintiff (=pl) reached a settlement with his wife (=wi) over child support in a beit din as part of an agreement to give a get. Wi’s uncle and aunt (=def) obligated themselves in beit din that if wi would successfully sue to raise the child support, def would pay back to pl the additional sum she was awarded. Beit din gave the obligation the status of a ruling. Wi did sue pl in court, and pl agreed to raise the child support, with the judge giving the agreement the status of a ruling. Pl is now suing def for 31,200 shekels for a few years of additional payments. Def argue that they are exempt for a few reasons: 1. No act of kinyan was made to obligate def, which is necessary because this is not a normal case of a guarantor (i.e., there is no borrower). 2. There was a lack of realization of the likelihood of obligation (asmachta), since def did not know that wi was not bound by the ruling. 3. Furthermore, according to the Rambam, one cannot obligate himself in an open-ended obligation, and one can claim kim li (I follow the minority opinion). 4. The obligation mentions payment in the case where the court rules in wi’s favor, whereas here pl agreed himself to pay.

 

Ruling: All of the specific halachic complaints about the way the obligation was accepted are to be rejected because the obligation was performed in front of beit din as a ruling that upheld a divorce settlement. First of all, there is a rule that beit din does not investigate the proceedings of another beit din (Bava Batra 138b). Therefore, even if there is no mention of a kinyan made in front of the beit din, we will assume that the obligation was done in an effective manner, as that beit din indicates.

The claims of asmachta and a not set amount have to do with a lack of gemirut da’at (informed consent). When such an obligation is done in front of a beit din, one cannot claim a lack of gemirut da’at (see Piskei Din Rabbaniim X, p. 365). Furthermore, since beit din gave the obligation the status of a ruling, the ruling is now a force that can obligate beyond any basic gemirut da’at. Because of the confluence of agreement and ruling, def cannot claim kim li that open-ended obligations are not valid (see Piskei Din Rabbaniim IX, p. 226) because beit din does not have to initiate an obligation, since he accepted it himself as a p’sak.

One of the ways to accept the obligation is situmta – that it is accepted in society that an obligation in court is binding (see Bava Metzia 59a). However, this makes us consider whether the courts would uphold such an agreement, on the grounds that it is immoral or goes against public interest. The issue is that such an agreement may deny a wife the ability to ask for money that it might turn out will have an impact on the couple’s children’s wellbeing.

[We will continue with the point next week of the impact of public interest.]

 
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Nir Rephael ben Rachel Bracha
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