Shabbat Parashat Ki Teitzei| 5770
P’ninat Mishpat: Reneging on a Questionably Performed Divorce Settlement(condensed from Mishpetei Shaul, siman 50)
Case: A couple got divorced after signing a divorce agreement, affirmed by a kinyan sudar, whereby the man (=pl) promised to give the woman (=def) 300 liras a month, linked to the CPI, until the time she will remarry. (This was an unusually generous settlement.) Pl wants to undo the agreement because his financial situation has deteriorated and def’s has improved since the agreement. He notes that a kinyan sudar does not work for the future (after the divorce), as the sudar is returned before the divorce sets the obligation into motion. Although a contract was signed, which usually works as a kinyan based on situmta (accepted practice), since a sudar was specifically done, it shows that they did not intend to use situmta.
Ruling: The gemara (Bava Metzia 10a) gives two reasons why someone who fell upon a non-owned object to acquire it does not succeed, even though being within four amot of it is itself a kinyan. The first is that his action of falling on the object shows that he does not want to acquire it through four amot, which sounds like pl’s line of argument. However, the other answer in the gemara is that it is talking about a case where four amot does not work. Although the Rashba and Ran agree with the first answer, the Shulchan Aruch, Rama, and their major commentaries (Choshen Mishpat 268:1) argue and, in such a case, it is even possible to extract money from a litigant based on the majority opinion (Netivot Hamishpat, Tefisa 20). The Beit Yosef implies that this is not a local ruling, but that halacha rejects the notion that attempting to do one kinyan is a sign that one does not want the other kinyan to work, and this applies to our case. It seems that even the Rashba and Ran were only talking about cases where the effective kinyan for which he might not have intended occurred before the one he later attempted. In this case, the signature on the agreement took place after the kinyan sudar and there is no reason to say that he did not intend for it to effectuate the agreement. Rather, we should rely on the many indications that one has in mind to finalize an agreement in whatever way works.
It is also possible to infer from the agreement’s language that the financial obligation was actually to take place right away (just that the specific payments would take place later). This would enable the kinyan sudar to work. Unless there is explicit mention that the obligation should take effect later, we are to assume that it takes place immediately, and certainly when this enables the kinyan to be effective (see Rama, CM 195:5).
There is an additional reason that the agreement should stand. The agreement was accepted by the beit din as having the standing of a court ruling. That being the case, after the sides agree to accept a ruling, even if it be one of compromise, it is binding as a ruling, not only as a self-imposed obligation. A final reason to consider the agreement binding is that the unusual extent of pl’s obligation is a sign that he agreed to it as a response to def’s agreement to receive the get he wanted to give. Under those circumstances, her receiving of the get obligates him in whatever compensation he promised.
Top of page
Print this page
Send to friend
More articles from this issue:
This edition of Hemdat Yamim is dedicated to the memory of
Yitzchak Eliezer ben
Avraham Mordechai Jacobson
This week’s Hemdat Yamim is dedicated in loving memory of