Shabbat Parashat Mishpatim| 5767
Invalid Document Followed by a Kinyan (Halacha Pesuka’s condensation of Shurat Hadin, vol. I, pg. 301-318)
Case: A couple got divorced after signing a settlement stating: “The sides agree that the ex-husband will pay the ex-wife 800 shekel a month for child support.” The court’s protocol states that following the signing of the document, the husband performed a kinyan sudar (a symbolic act of finalizing an agreement) “on the agreement I signed.” The husband now claims that he is not bound by the agreement because its language of agreeing to payment (as opposed to obligating oneself) is halachically invalid.
Ruling: It would seem that one who signed a standard document that was not written in the form of self-obligation is obligated based on the concept of situmta (based on Beit Yosef, Choshen Mishpat 61in the name of the Rivash). Situmta means that any act which is accepted in a society to effect a transaction is valid for a halachic kinyan even if it is not a halachically prescribed kinyan. However, this logic is insufficient in our case where the obligation is on future payment and not on the transfer of an object in the present. Since there are significant opinions that situmta does not work for future obligations, the husband can say that she has no right to extract money from him.
However, the kinyan sudar that was carried out after the signing of the document does obligate the husband. One proof for this contention is the gemara (Bava Batra 42b) regarding partners who relinquished their rights in a joint venture using language which is generally insufficient. The gemara says that it was valid in their case when they performed a kinyan sudar. Rashi and the Rashbam explain that the kinyan overcomes the faulty language. In contrast, the Rach and Rif say that the kinyan is presumed to be accompanied by a correct use of terminology.
Other important Rishonim, including the Rashba (Shut II, 301) accept Rashi’s approach. The Rashba writes: “… so too in all cases, the kinyan [sudar] strengthens and fixes and includes things in the present or the relinquishing of rights that were not in the [words’] meaning if not for the kinyan.” The Beit Yosef quotes this Rashba without bringing a dissenting opinion in several places (including CM 195). The Rama (CM 212:1) also accepts the Rashba. Although the Sema (37:7) says that there are many who reject the Rashba, there is a long list of poskim who agree [beyond our scope]. Since the author of the Shulchan Aruch and the Rama accept the Rashba, we are able to extract money based on his opinion and do not allow the defendant to say kim li (I can hold on to the money based on the minority opinion).
Thus, due to the kinyan,we reinterpret the husband’s assertion in the document as a personal obligation to supply his children with the sum of money mentioned in the document. Therefore, the obligation should be enforced.
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