Q&A: The Talyuhu Ve-Zavin Issue
The Talyuhu Ve-Zavin Issue
Question
Hello Rabbi,
Last week we studied with the judges the topic of “talyuhu ve-zavin” (Babylonian Talmud, Bava Batra 47b–48a). The Talmud’s reasoning is: “Through the coercion, he resolved and transferred ownership.” It seems to me that I was unable to explain to modern jurists, who are expert in the laws of sale and contracts, how there can be true consent under actual coercion (“they hung him”; torture). This is so even after clarifying the conditions (that the buyer pays the real value; that this is not “talyuhu ve-yahiv”; that there can be prior protest, etc.). And even after explaining Maimonides, regarding a bill of divorce, about the inner Jewish point (Laws of Divorce, chapter 22).
It seems to me that today’s jurist is used to thinking that such a defect turns the consent, which did exist, into consent that is legally invalid. And therefore they view it as though it never existed.
When I asked scholars yesterday, they spoke with me about the possibility of viewing the matter of will as a whole spectrum, and as something that may perhaps depend on timing; one added that later authorities, in interpretation, added the condition of an explicit statement of “I consent”—and thereby the balance was tipped in favor of consent. And perhaps an explanation applies here about ancient, formalist law, as opposed to contemporary law, which is less formalist.
My focused question: do you have an idea how to explain this (“through the coercion, he resolved and accepted”) to a “modern” jurist?
Answer
Hello.
This is quite a painful topic, and in the past I was not a little puzzled by it. I’m not fully immersed in it, so I’ll write off the cuff what occurs to me now.
It seems to me that the usual explanation hangs on the assumption that a person always sells in order to receive payment. That is, without the payment he would not sell (especially with land, the conventional attitude was that a person never sells his land unless he has fallen into distress—but perhaps this is true generally). Now they threaten him, and thereby cause him to want to sell. The hanging/coercion creates the state of distress, and from within that he becomes willing (in order to escape the threat). But, as stated, willingness is always the result of distress, and therefore the fact that I created the distress does not mean there is no willingness here, but at most that the willingness was obtained by improper means.
This reminds me of Robert Nozick’s distinction between seduction and extortion. On the face of it, in both cases you place before a person two options between which there is some difference in utility, and yet seduction is permitted while extortion is forbidden. The explanation is that in seduction you offer a person something beyond what he already has if he does something for you. And if he does not do it, he simply will not receive it. If they give, they receive; if they do not give, they do not receive. That is permitted. But in extortion, one of the two options is illegitimate, because it threatens to take away something that is his. The threatener has no authority to do that. The claim is that the measure of legitimacy is not differential (it is not the gap between the two options that determines it, but the absolute status of each of them). But if you think about it further, in extortion a person does not actually carry out what he threatens; he only threatens to do it. If the threatened person gives in, then the threat merely created a state of distress and did not carry out any illegal act. So in fact one could view this as a legitimate act (legally, not morally of course). Think of the manipulations a buyer or seller uses to persuade someone. I assume that in at least some cases we would surely agree that this may not be moral, but is still legally valid.
In this context people also cite the distinction between two types of coercion, and the common source for this is Maimonides in Laws of the Foundations of the Torah 5:6. According to at least one interpretation, Maimonides distinguishes there between committing a transgression in order to be healed from an illness, and committing a transgression in order to escape a threat. His claim is that if a person worshipped idolatry in order to be healed, he is punished (he is not considered coerced), but if he did so under threat, he is exempt from punishment (although it is still forbidden to do so. For purposes of punishment he is considered coerced). There too the claim is that when a person does something in order to be healed, he is acting for his own interest, and therefore there is no coercion here (even though if he does not commit the transgression he will die of the illness). After all, every human action is done for some interest. When the transgression is committed because of a threat, then he is coerced because he is not doing it for his own interest. You can look at the commentators there (especially Or Sameach and Kovetz Shiurim and others; see the index to Frankel).
This is reasoning similar to what I wrote above, but note that there is no real fit. Here the threat is considered coercion, that is, not an act a person does for his own interest. In the case of talyuhu ve-zavin we see a threat as a kind of distress that creates an interest, and the person who acts under the threat acts for his own interest (and therefore, seemingly, should not be considered coerced). I think there is room to distinguish in several ways, but in any event this illustrates this form of thinking.
So why does this not work in talyuhu ve-yahiv? I think it is because a gift is not a commercial transaction that a person does for the sake of an interest (unlike what the great Rabbi Marcel Mauss wrote in his important booklet, ‘The Gift,’ published by Resling. An interesting difference between the halakhic conception and the philosophical conception of gifts). Therefore there, creating a state of distress does not justify the act unless the price was paid (in which case it is a sale). The reasoning that creating distress validates the act because it creates an interest is relevant only to a sale, which is based on interests, and not to a gift, which is based on social relations.
Discussion on Answer
I skimmed through it briefly from beginning to end and saw that it is good. But the distinction he makes between the two kinds of justice is too dichotomous. For example, in the legal realm, when a contract is voided because of substantive injustice, it is obviously because in the court’s view there was no justice in its formation (for example, the employer’s position of power). I doubt how far one can really separate the two.
He also ties this to libertarianism versus socialism-centralism, and there too I don’t think he is right. The dispute there is not about contractual justice versus substantive justice, but about whether, when a person is threatened by a legitimate step (the exercise of an employer’s power), this impairs his judgment or not (he could have refused and not accepted the contract/job). That is, both approaches can be seen as different applications of contractual justice. My claim 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 one of them that he does not understand his own interest?
In fact, that was the core of my argument in the previous email. If someone threatened me, my balancing of interests still led me to agree, and that is now my interest. This undermines the distinction between contractual justice and substantive justice. It is interesting that he even brings, near note 24, the example of Nozick that I mentioned. And indeed that example shows that sometimes we examine the final contract through the way it came into being (a threat, involving an illegitimate step), and that is the non-differential criterion. The substantive criterion is the gap, and the gap is identical in threat/extortion and in seduction/offer. See his discussion on pp. 60–61. And indeed, without saying so explicitly, his conclusion on pp. 61–62 greatly blurs the difference he tried to make between the two kinds of justice (the way it was formed determines the fairness of the contract).
On pp. 89–90 he explains exactly as I did the difference between a sale and a gift. It would have been worthwhile to compare this to Marcel Mauss’s classic essay.
Indeed interesting.
Recently I came across an interesting Maimonides from which it appears that there is a distinction between coercion of a bill of divorce and coercion of a sale:
Maimonides, Laws of Divorce, chapter 2, law 20:
One for whom the law requires that he be compelled to divorce his wife, and he did not wish to divorce— a Jewish religious court, in every place and at every time, beats him until he says, “I consent,” and writes the bill of divorce, and it is a valid bill of divorce. Likewise, if non-Jews beat him and said to him, “Do what the Jews tell you,” and Jews pressured him through the non-Jews until he divorced, it is valid. But if the non-Jews themselves coerced him until he wrote it, since the law requires that he write it, it is still a disqualified bill of divorce. And why is this bill of divorce not void, seeing that he was coerced, whether by non-Jews or by Jews? Because we only say “coerced” regarding one who is pressured and forced to do something that he is not obligated by the Torah to do—***such as one who was beaten until he sold or gave***. But one whose evil inclination overpowered him to neglect a commandment or commit a transgression, and was beaten until he did something he was obligated to do, or until he distanced himself from something forbidden, is not coerced by others; rather, he coerced himself through his corrupt mindset. Therefore, this one who does not wish to divorce—since he wants to be part of the Jewish people, he wants to perform all the commandments and distance himself from transgressions, and it is only his evil inclination that overpowered him—once he is beaten until his inclination is weakened and he says, “I consent,” he has divorced willingly.
I emphasized with asterisks the important part. Seemingly the emphasized section implies that in talyuhu ve-zavin, the sale is not valid, because refraining from a sale involves neither a transgression nor neglect of a commandment (as opposed to refraining from giving a bill of divorce). But Maimonides ruled that the sale is valid. So I thought one must distinguish with regard to a bill of divorce, where two conditions are required for its validity. One is that there be formed intent, as in every property-transfer act (even if it arises from coercion), and the second is that it be an act done willingly, meaning that the primary motive behind it is his own will and not someone else’s (and here coercion is not allowed, unless it is coercion of the evil inclination). Even if there is another distinction, one can still see from here that there are two levels of sufficient consent for carrying out an act. Legally, basic consent is enough to effect a transfer, but morally, stronger consent is required to effect a transfer, and without it it is not fitting that the transfer take effect. It may be that contemporary legal thinking is aimed at minimizing moral distortion, and not necessarily at legal truth, and therefore the law of talyuhu ve-zavin appears puzzling to today’s jurists.
Very true.
Recently I had occasion to return to this topic, and I thought it could be explained differently from Maimonides, 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 he is offered a fair price for it, then on the one hand he has a consideration in favor of the sale because he will be able to use the proper payment for other needs, or perhaps move to a bigger house. On the other hand, he also has considerations against the sale (for example, if he is very attached to his house). When someone applies physical pressure to that seller so that he will be persuaded to sell, he has essentially added one more consideration in favor of the sale, but that is not the only consideration in favor of the sale; it is merely what tipped the scales. If that were the only consideration in favor of the sale (for example, if the seller had been offered inadequate payment, so that he has no side at all in favor of selling), then this would be complete coercion and the sale would be void. But if the sale was based, among other things, on a side of genuine willingness, then this is not complete coercion, and therefore the sale takes effect. The same applies in the case of a bill of divorce. If I compel a person to give a bill of divorce unlawfully, then there is not even any side or consideration in favor of giving the bill of divorce, and therefore this is complete coercion. But where the coercion is lawful, then there is a side of willingness in wanting to heed the words of the sages, and the coercion is not the only consideration in the final will to divorce.
In Maimonides’ explanation there is a difference between a bill of divorce and a sale: for a bill of divorce to take effect, there may not be coercion, and lawful compulsion is not coercion but a revelation of the true will. Whereas in a sale, for it to take effect, it can also be under coercion (as long as there is fair payment). According to my explanation, a bill of divorce is exactly like a sale, and both can take effect even when there is coercion. It is only that the condition for the act to take effect is that there be fair compensation for performing the act (or a side of genuine willingness). In the case of a sale this is monetary payment, and in the case of a bill of divorce the compensation is the reward for fulfilling the commandment to heed the words of the sages (or the commandment itself, since the reward of a commandment is the commandment). That too is a kind of compensation for the act of divorce, and it creates a side of genuine willingness in favor of the divorce.
I think there are two advantages to my way of explaining it:
1. When Maimonides says that lawful compulsion is not coercion but a revelation of the true will of the person being compelled, there is a fairly obvious strain in that, which every beginner notices. According to my explanation, I am not claiming that the person truly wants to divorce, only that he has some side toward divorcing.
2. According to my explanation there is no distinction between a bill of divorce and a sale, meaning it is a simpler explanation (Occam’s razor).
I’d be glad to hear your opinion, and I hope I explained myself properly.
In principle that is possible, but in my opinion there is a problem in the reasoning of your explanation. If we are talking about a balancing of several desires, why does that one desire always override the others? We should have to measure the strength of the desire to sell against the surrender to pressure, etc. The sweeping determination that in talyuhu ve-zavin the sale is valid is difficult according to your approach. By contrast, Maimonides claims that basically there is a will to sell, and therefore this difficulty does not arise.
Regarding what you said, that Maimonides claims that basically there is a will to sell: I understood that he is actually claiming that there is not even a basic will to sell. I understood that from these words of Maimonides:
“Because we only say ‘coerced’ regarding one who is pressured and forced to do something that he is not obligated by the Torah to do, such as one who was beaten until he sold or gave.”
That is, he compares a coerced sale to a coerced gift—both are called coercion.
Actually, my explanation is more in the direction of what you said about Maimonides. I claim that there is some will to sell or some will to divorce (not necessarily that this is the primary will or the one that overrides the others). Once there is some such will (or a “side of willingness,” as I called it above), that is enough for the act to take effect. In talyuhu ve-yahiv or compulsion regarding a bill of divorce where it is not lawful, there is not even such a “side of willingness.”
The question is why “some will” is enough for the sale to take effect.
What I am claiming is that according to Maimonides, for something to take effect there must be full will, not partial will. What you quoted is his explanation of why in a sale this is considered coercion.
Again I saw that the matter may depend on a dispute between Talmudic passages:
Babylonian Talmud, Bava Batra 48a:
“A bill of divorce obtained by compulsion—in Israel it is valid, and among non-Jews it is invalid. And among non-Jews, they beat him and say to him: Do what the Jew tells you. But why? There too let us say: Through the coercion he resolved and divorces! About that it was stated: Rav Mesharshiya said: By Torah law, even among non-Jews it is valid; and why did they say that among non-Jews it is invalid? So that each and every woman should not go and attach herself to the power of non-Jews and free herself from her husband.”
Babylonian Talmud, Gittin 88b:
“Mishnah: A bill of divorce obtained by compulsion—in Israel it is valid, and among idol worshippers it is invalid; and among idol worshippers, they beat him and say to him: Do what the Jews tell you (and it is valid).
Gemara: Rav Nahman said that Shmuel said: A bill of divorce obtained by compulsion in Israel—if lawfully, it is valid; unlawfully, it is invalid and disqualifies. And among idol worshippers—if lawfully, it is invalid and disqualifies; unlawfully, there is not even the scent of a bill of divorce in it. How can this be? If idol worshippers are fit to compel, then it should even be valid! And if they are not fit to compel, it should not even disqualify! Rav Mesharshiya said: By Torah law, a bill of divorce obtained by compulsion among idol worshippers is valid; and why did they say invalid? So that each and every woman should not go and attach herself to an idol worshipper and free herself from her husband. If so, when unlawful there is not even the scent of a bill of divorce in it—then let unlawful among idol worshippers be like unlawful in Israel, and let it also disqualify! Rather, this statement of Rav Mesharshiya is nonsense. And what is the reason? Lawful compulsion among idol worshippers can be confused with lawful compulsion in Israel; unlawful compulsion among idol worshippers cannot be confused with lawful compulsion in Israel.”
From the passage in Bava Batra it appears that there is no distinction between a sale and divorce, and just as in a sale “through the coercion he resolved and transferred ownership,” so too in divorce “through the coercion he resolved and divorces.” But from the passage in Gittin it appears that the foundation on which the Gemara in Bava Batra relied is nonsense, and therefore the law is not like that; rather there is a distinction between bills of divorce and sales, in that for a bill of divorce to take effect there must be a commandment to heed the words of the sages.
But about this I wanted to ask regarding the continuation of the passage in Bava Batra. It says:
“If he coerced her and betrothed her—his betrothal is valid. Mar bar Rav Ashi said: In the case of a woman, certainly the betrothal is not valid; he acted improperly, therefore the sages acted improperly with him and uprooted his betrothal from him.”
And seemingly this is difficult for Maimonides’ approach: why is his betrothal valid? There is no commandment to heed the words of the sages with respect to betrothing a woman by coercion. Some answer that the husband can divorce her without cost and therefore he loses nothing. But it is still difficult why someone who coerced a woman into becoming betrothed to him—the betrothal takes effect and the sages uprooted it. The betrothal should not have taken effect from the outset, and there should have been no need for the sages to uproot it (just as an unlawfully coerced divorce does not take effect from the outset).
It is possible that in the background there is the presumption that “it is better to sit as two than to sit alone,” that a woman is content with almost any husband. I haven’t looked into it enough.
In the famous Maimonides in Laws of Divorce, chapter 2, Maimonides explains how a coerced bill of divorce is a valid bill of divorce (“He is not coerced by others; rather, he coerced himself through his corrupt mindset”). In the course of his remarks he explains that one should not compare matters of prohibition to “one who is pressured and forced to do something that he is not obligated by the Torah to do.” And his example for this is a sale or a gift: “such as one who was beaten until he sold or gave.”
In my opinion, two questions arise here immediately: 1. After all, one who was beaten until he sold—the sale is still valid; so why does Maimonides contrast a coerced sale with a coerced bill of divorce? 2. How is a sale compared to a gift, when in “talyuhu ve-yahiv” the gift does not take effect?
The simple answer, in my opinion, to both questions is that according to Maimonides the basic and overarching rule is that in monetary law, coercion causes nullification, and there is really no fundamental difference between a coerced sale and a coerced gift (indeed, only when certain conditions are met will a sale under torture take effect, in which case one can say that “through the coercion he resolved and transferred ownership”).
Does this seem right to you?
It is obvious that Maimonides contrasts divorce with commerce. That is explicit in his words. In principle, in commerce coercion causes nullification, unlike divorce where there is a commandment to heed the words of the sages, and within that he does want it and it is not coercion (there are explicit Talmudic passages about “we compel him until he says, ‘I consent’”).
But in commerce there is compensation, and therefore it is not comparable to a gift, nor to divorce. If he sells because of coercion, he still received compensation, and therefore he nonetheless resolves and transfers ownership. That is not so for a gift and divorce, where there is no compensation (and not like Rabbi Marcel Mauss in his famous essay). Therefore, in principle divorce is similar to a gift and not to a sale. But as stated, in divorce there is a commandment and an inner will, and therefore in this respect it comes out similar דווקא to commerce and not to a gift.
Hi, your response arrived in fragments, but I managed to piece it together.
I understand each of the three laws (divorce, sale, gift). But my question was why Maimonides contrasted divorce with sale and gift, and clearly the contrast is explicit in his words.
I’ll make another attempt, perhaps more precise, and in my opinion this emerges explicitly from Maimonides’ words in Laws of Divorce and Laws of Sale (and perhaps this is what you meant as well):
1. In divorce, unlike sale and gift, there is no coercion at all, because of the commandment to heed the words of the sages, etc.
2. By contrast, in sale and gift, where there is no element of commandment, there is coercion. Hence the contrast.
3. The overarching rule is that coercion in monetary law causes the act to be void, because there is a requirement of formed intent done willingly. Therefore in a gift, the act is voided in a case of coercion.
4. However, there are cases in which there is indeed coercion, but when certain conditions are met (receipt of full compensation, saying “I consent”), one can say that the coercion itself (which does exist) caused formed intent. And then the act is valid.
From this it follows that the main thing in monetary law is formed intent done willingly, and not the question whether there was external pressure, even very intense pressure.
Understanding the depth of the matter is important in my opinion for another reason as well (which was not mentioned earlier), namely the comparison to modern law. I do not believe that in a case of a sale under threat of a gun (“talyuhu”?) any judge would uphold the validity of a sale signed facing the barrel. At the same time, even if there is proof of massive pressure, a court will have difficulty invalidating a sale where full compensation was given. There is still more to think about in this not-simple matter.
And as for my own understanding—I have none, as you may recall.
Exactly.
I think the difference between Jewish law and general law is connected to a fundamental difference between them that I once wrote about. In Jewish law there are no purposive considerations, whereas in law there are—especially in property law. I demonstrated this regarding abandonment in lost property and in intellectual property.
Perhaps here too the law is unwilling to recognize hanging/coercion as a sale because of its implications, but in Jewish law, if there is willingness then there is a transfer, regardless of the problems that this may create.
Possibly. I don’t remember seeing your remarks about intellectual property. I saw someone who wrote that the field is not developed at all in Jewish law.
Indeed true. Until Deborah arose…
In an article in Techumin I laid the foundations for intellectual property in Jewish law, literally creating something from nothing. In my opinion (and in Neil Hendel’s opinion), one of my best pieces. In another article I mentioned to you, I use that and show differences (and also explain why in Jewish law there is a problem defining intellectual property).
I recommend reading the article: “The Coerced Contract and the Principle of Contractual Justice: A Philosophical-Legal Inquiry into the Talyuhu Ve-Zavin Issue”:
https://drive.google.com/open?id=1rhbWr_R4jmG3ayJ3ZRsTaaX7s1Egty41
Some of your ideas are there!