The issue of Tliohu and Zevin

I recommend reading the article: The Forced Contract and the Principle of Contractual Justice, a Philosophical Legal Study on the Issue of Tliohu and Zabin:
https://drive.google.com/open?id=1rhbWr_R4jmG3ayJ3ZRsTaaX7s1Egty41

Some of your ideas are there!

I briefly went through his arguments and saw that they were good. But the distinction he makes between two types of justice is too dichotomous. For example, in the legal field, when a contract is annulled due to a lack of substantive justice, it is clear that this is because, in the court's assessment, there was no justice in the termination (such as the employer's position of power). I doubt how far it is really possible to separate the two.
He also links this to libertarianism versus socialism-centralism, and I don't think he is right there either. The debate there is not about the question of contractual and substantive justice, but about the question of whether or not when a person is threatened by a legitimate step (the employer's exercise of power) his judgment is impaired (he could have refused and not accepted the contract/job). In other words, the two approaches can be seen as different applications of contractual justice. My argument is that there is no room for considerations of substantive justice if both parties are sovereign to determine what they want from the contract. Who can tell either of them that he doesn't understand his own interest?
In fact, this was the continuation of my argument in the previous email. If someone threatened me, the weighing of my interests still brought me to agreement, and that is now my interest. This is a challenge to the distinction between contractual justice and substantive justice. Interestingly, he (next to note 24) even brings up the Nozick example I mentioned. Indeed, this example indicates that sometimes we examine the final contract through the manner of its formation (a threat, which is taken in an illegitimate step), and this is the non-differential measure. The substantive measure is the difference, and the difference is the same in both threat/blackmail and temptation/offer. See his discussion on pp. 60-61. Indeed, without him explicitly saying so, his conclusion on pp. 61-2 actually greatly blurs the distinction he was trying to make between the two types of justice (the manner of formation determines the fairness of the contract).
On p. 89-90 He explains the difference between an acquaintance and a gift just as I do. It would be interesting to compare it to Marcel Mauss's classic essay.
Interesting indeed.

I recently came across an interesting Rambam that implies that there is a distinction between coercion of a get and coercion of a seller:
Rambam Hilkot HaRoushin Chapter 2 Halacha 20
If the law provides that he be forced to divorce his wife and he does not want to divorce her, a court of Israel in any place and at any time prepares him until he says, "I want to," and writes the get, and it is a valid get. Likewise, if Gentiles beat him and said to him, "Do what the Israelites tell you," and the Israelites press him with the hands of the Gentiles until he divorces her, then it is valid. And if the Gentiles themselves rape him until he writes it, since the law allows it to be written, then it is a valid get. And why is this divorce not nullified, since it is coercion, whether by Gentiles or by Israel, and coercion is not said except to someone who is pressured and forced to do something that is not required by the Torah to do ***such as someone who was beaten until he sold or gave*** But someone who was attacked by his evil inclination to cancel a mitzvah or commit a transgression and was beaten until he did something that he was obligated to do or until he refrained from something that was forbidden to do, this is not coercion on his part, but rather he forced himself with his evil intention. Therefore, the one who does not want to be expelled because he wants to be from Israel wants to do all the mitzvahs and abstain from transgressions, and his inclination is what he attacked, and since he was beaten until his inclination was exhausted and he said, "I want to," he has already expelled him at his will.

I emphasized the important part with asterisks. Apparently, it means from the emphasized part that he followed and said, "Zevinya Zevini," not "Zevinya Zevini," because in refraining from selling there is no transgression or cancellation of a mitzvah (as opposed to refraining from giving a get). But the Maimonides ruled that it was "Zevinya Zevini." Therefore, I thought that a distinction should be made between a get, where two conditions are required for its validity. One is that there must be a conscious decision, as in any proprietary action (even if it results from rape), and the other is that it must be an action of his own will, meaning that the main motive behind it is his will and not someone else's (and here rape is prohibited, unless it is rape of the evil inclination). Even if there is another distinction, it can be seen from this that there are two levels of sufficient reason for performing an action. Legally, basic reason is sufficient to apply proprietary, but morally, strong reason is required to apply proprietary, and without it it should not be applied. It is possible that legal thinking today is oriented toward minimal moral distortion, and not necessarily toward legal truth, and therefore the law of Taliohu and Zevin seems puzzling to today's jurists.

Very true.

I recently had the opportunity to return to this issue, and I thought it could be explained differently from the Rambam, as follows:

In every decision a person makes, he has considerations for and against. For example, if a person is considering whether to sell his house, and is offered a suitable price for the house, then on the one hand he has a consideration in favor of the sale because he will be able to use the appropriate consideration for his other needs or perhaps move to a larger house. On the other hand, he also has considerations against the sale (for example, if he is very used to his house). When someone applies physical pressure on that seller to convince him to sell, he has essentially added one more consideration in favor of the sale, but it is not the only consideration in favor of the sale, but only what tipped the balance. If this was the only consideration in favor of the sale (for example, in the case where the seller was offered an inappropriate consideration, and then he does not even have a party to sell), then it is a complete rape and the sale is void. But if the sale was based, among other things, on a genuine party's willingness, then it is not a complete rape and therefore the sale is valid. The same is true in the case of a get. If I force a person to give a get illegally, then there is not even a side or consideration in favor of granting the get, and therefore it is complete rape, but where the coercion is lawful, then there is a side here in the will to listen to the words of the sages, and coercion is not the only consideration in the final will to expel.

In the Maimonides' explanation, there is a difference between a get for sale, in that in order for a get to be valid there must be no rape, and coercion by law is not rape but rather a manifestation of the true desire. Whereas in a sale for it to be valid it can also be rape (as long as there is an appropriate consideration). According to my explanation, a get is completely equivalent to a sale, and both can apply even when there is rape. Only the condition for the act to be valid is that there be an appropriate consideration for performing the act (or a side of true desire). In the case of a sale, this is monetary consideration, and in the case of a get, the consideration is the reward for fulfilling the commandment to listen to the words of the sages (or the commandment itself, which is a mitzvah, a mitzvah). This is also a kind of compensation for the act of expulsion and it creates a real will in favor of the expulsion.

I think there are two advantages to my form of explanation:
1. When the Rambam says that coercion in law is not rape but rather the revelation of the true will of the person being forced, there is a fairly obvious urgency in this that every beginning student recognizes. According to my explanation, I am not claiming that the person really wants to expel, but only that he has a will to expel.
2. According to my explanation, there is no distinction between a get and a macer, in other words, this is a simpler explanation (Ockham's razor).

I would love to hear what you think and I hope that I have explained myself correctly.

In principle, this is possible, but I think there is a problem with your explanation. If it is a question of weighing several desires, why does one desire always prevail over the others? We should have measured the strength of the desire to sell versus surrendering to pressure, etc. The sweeping statement that Talyuhu and Zabin Zabinia Zabini is difficult according to your method. On the other hand, Maimonides claims that basically there is a desire to sell and therefore its control does not exceed this difficulty.

Regarding what you said about the Rambam claiming that there is a basic desire to sell. I understood that he actually claims that there is not even a basic desire to sell. I understood this from these words in the Rambam:
“They do not say 'enus' except for someone who is pressured and coerced into doing something that is not required by the Torah to do, such as someone who was beaten until he sold or gave”
That is, he compares selling by force to giving by force – both of which are called rape.

My explanation is actually more in line with what you said about the Rambam. I claim that there is some desire to sell or some desire to expel (and not necessarily that it is the main desire or the one that prevails over the others). As soon as there is some such desire (or “side desire” as I called it above) it is enough for the act to occur. In the case of a forced or unlawful divorce, there is not even such a "willing party".

The question is why is “some will” enough for the sale to take effect?
What I am arguing is that according to Maimonides, for any matter to take effect, there needs to be a full and not partial will. What you quoted is the explanation why in a sale it is considered rape.

Again, I saw that this may depend on a dispute between issues in the Gemara:
Babylonian Talmud, Tractate Bava Batra, page 40, page 1
A fabricated divorce, in Israel – is lawful, and in Akko ” is invalid, and in Akko ” they beat him and say to him: Do what Israel tells you; and what about me? They said: By the way, Onassis, it is a complete and complete divorce! Did Itamar come up, Rav Mesrashia said: A word of Torah is lawful even in Akko, and what is the reason they said that in Akko it is invalid? So that each and every woman would not go around hanging herself in the hand of Akko and expropriating herself from the hand of her husband

Babylonian Talmud, Tractate Gitin, page 5, page 2
Matni’. A fabricated divorce, in Israel – Kosher, and among idolaters, it is invalid; and among idolaters, they beat him and tell him to do what Israel tells you (and it is kosher).
Also, Rabbi Shmuel said: A divorce made in Israel is lawfully kosher, unlawfully invalid and void; and among idolaters, lawfully invalid and void, unlawfully even if the smell of a divorce is not in it. What is your mind? O idolaters, my sons, I will make you kosher! O idolaters, my sons, I will make you kosher! If you do not make you kosher, I will make you kosher! Rav Mesrashia said: A Torah verse: A divorce made among idolaters is lawfully kosher, and what is the reason they said: void? Let not every one go and hang herself in the work of the stars, and deprive herself of her husband's hand. Indeed, unlawfully, even though it has no smell of divorce, and unlawfully it is as if Israel had done, and a nullifier cannot nullify it! Rather, is it a rabbi from the head of the house in the dota? And what is the reason? Legally, in the case of Israel, the dota is exchanged, unlawfully, in the case of Israel, the dota is not exchanged

From the issue in Bava Batra it means that there is no distinction between sale and divorce, and just as in a sale by way of an unification, there is a final and final purchase, so also in a divorce, by way of an unification, there is a final and final sale. But from the issue in Gitin it means that the foundation on which the Gemara relied in Bava is in the dota, and therefore the halakha is not like that, but there is a distinction between gittin and sale, in Gitin for the get to take effect there must be a mitzvah to listen to the words of the Sages.

But I wanted to ask about this regarding the continuation of the issue in the book of Batra, it is written as follows:
Taliva and Kaddish – His sanctification is sanctification. Mr. Bar Rav Ashi said: In a woman, it certainly was not sanctification, he acted improperly, therefore they acted improperly with him and our rabbis confiscated him for his sexual sanctification

And it seems difficult according to the Maimonides, why are his sanctifications sanctification? After all, there is no mitzvah to listen to the words of the Sages regarding the sanctification of a woman by rape. There are excuses that the man can divorce her without cost, and therefore he does not lose. But it is still difficult why someone who raped a woman to sanctify himself, sanctifications are valid and the Sages confiscated them. Sanctifications were not supposed to be valid from the beginning, and there was no need for the Sages to confiscate them (just as forced divorces by wrongdoing do not apply from the beginning).

It is possible that there is a presumption of favoritism in the background, that a woman is always favored. I haven't looked into it enough.

In the famous Rambam's book on divorce laws, Chapter 2, the Rambam explains how a forced divorce is a lawful divorce ('He is not forced by him, but he has forced himself with his evil intention.'). In his words, he explains that one should not compare matters of prohibition with 'one who is pressured and coerced into doing something that is not required by the Torah to do.' An example of this is a sale or gift: 'such as one who was beaten until he sold or gave.'

In my opinion, two questions arise here: 1. After all, even one who was beaten until he sold - the sale is valid; so why does the Rambam distinguish between a forced sale and a forced divorce? 2. How is a sale compared to a gift? After all, in 'Talihu and Yavi' A gift does not take hold.

The simple answer in my opinion to both questions is that according to the Rambam, the basic and great rule is that in the law of things, rape causes nullity, and there is really no fundamental difference between a sale by rape and a gift by rape (indeed, only when certain conditions are met will a sale by torture take hold, in which case it will be possible to say that ”by the way, rape is complete and the purchase”.

Does this seem to be in his honor?

It is clear that the Rambam distinguishes between divorce and purchase and sale. This is explicit in his words. In principle, in a purchase, rape causes nullity, in contrast to a divorce in which there is a mitzvah to listen to the words of the Sages and in which he wants and is not rape (there are explicit endings on coven until he says I want).

But in a purchase, there is a consideration, and therefore it should not be compared to a gift, nor to a divorce. If he sells to his rapist, he still received consideration, and therefore he still ends up buying. Therefore, in a gift and a divorce, there is no consideration (and not as Rabbi Marcel Mauss did in his well-known treatise). Therefore, in principle, divorce is similar to a gift and not to a sale. However, as stated in a divorce, there is a mitzvah and an internal will, and therefore in law it is similar to a purchase and not to a gift.

Hi, your answer came in pieces but I managed to put it together.

I understand each of the three laws (divorce, sale, gift). But my question was why did the Rambam distinguish between divorce and sale and gift, and it is clear that the contrast is explicit in his words.

I will make another attempt, perhaps more precise, and in my opinion the things arise explicitly from the Rambam's words on divorce laws and sale laws (and perhaps that is what you were referring to as well)

1. In divorce, as opposed to sale and gift – there is no rape at all, because of the mitzvah to listen to the words of the sages, etc.

2. On the other hand, in sale and gift, which do not involve the mitzvah, there is rape. Hence the contrast.

3. The general rule is that rape in the law of money causes the act to be nullified because there is an obligation to make a voluntary decision. Therefore, as a gift – the action will be nullified in the event of coercion.

4. However, there are cases in which there is indeed rape, but if certain conditions are met (receiving full consideration, saying I want), it can be said that the rape itself (which exists) caused the will to be fulfilled. Then the action is valid.

Hence, the main thing in property law is the voluntary will to be fulfilled, and not the question of whether there was external or even massive pressure.

Understanding the depth of the matter is important in my opinion, among other things, because of another aspect (not mentioned before), which is the comparison to modern law. I do not believe that in the case of a sale at gunpoint (“to shoot him”?) there will be a judge who will confirm the validity of the sale that was signed in front of the barrel. At the same time, even if there is evidence of the application of massive pressure, the court will have difficulty invalidating a sale when there was full consideration. There is more to think about in this not-so-simple matter.

And I do not understand, as I recall.

Exactly.

I think the difference between halakha and general law is related to a fundamental difference between them that I wrote about once. In halakha, there are no purposeful considerations, and in law, there are, especially in property law. I demonstrated this in the laws of despair of loss and intellectual property.

Perhaps here too, the law is not willing to recognize hanging as a sale because of its implications, but in halakha, if there is a will, there is property regardless of the problems it may create.

It's possible. I don't remember seeing what you said about intellectual property. I saw someone who wrote that the field is not developed at all in Jewish law.

Indeed, true. Until I woke up Deborah…
In the article in the fields I laid the foundations for intellectual property in Halacha, literally from nothing. In my opinion (and in the opinion of Neil Hendel) one of my best. In another article that I mentioned to you, I use it and show differences (and also explain why in Halacha there is a problem defining intellectual property)