Q&A: Stipulating Against What Is Written in the Torah in Monetary Law
Stipulating Against What Is Written in the Torah in Monetary Law
Question
How are you?
It seems to me that you once wrote about this, but I can’t find it: when someone stipulates during the contract that an unpaid bailee will have the liability of a borrower, do we penalize him for that? Apparently not. Does that mean that the Sages understood all monetary law as a default framework?
Answer
Obviously not. One may stipulate from the outset in any contract whatever one wants (freedom of contract). I once saw someone who wanted to argue otherwise, but in my opinion that has no basis and no logic at all. Any person is allowed to give gifts to another.
Rabbi Yechezkel Abramsky argues that the novelty in the laws of bailees is that the Torah penetrated to the depth of a person’s intention and determined that this is what he means unless he indicated otherwise. In other words, the laws of bailees teach us psychological facts. In my opinion there is no need for that, and it is also unlikely that the Torah came to teach facts (if we want to know what people intend, we should check). Another possibility is that the Torah simply establishes a default in order to close the gap in the contract when the parties did not clarify their intention. But that is puzzling, since it could leave this to the legislator, as happens among the Noahides. It seems to me most reasonable to say that the laws of bailees teach us normative-halakhic truths: this is the real / proper obligation. What is truly due in return for payment is liability for theft and loss, and for no payment what is due is exemption. Of course, if a person wants to give gifts and stipulate otherwise, that is his right.
I wrote about this in the following article:
https://mikyab.net/%D7%9B%D7%AA%D7%91%D7%99%D7%9D/%D7%9E%D7%90%D7%9E%D7%A8%D7%99%D7%9D/%D7%91%D7%99%D7%9F-%D7%94%D7%98%D7%A8%D7%99%D7%98%D7%95%D7%A8%D7%99%D7%94-%D7%A9%D7%9C%D7%99-%D7%9C%D7%98%D7%A8%D7%99%D7%98%D7%95%D7%A8%D7%99%D7%94-%D7%A9%D7%9C-%D7%94%D7%96%D7%95%D7%9C%D7%AA-%D7%A2/
Discussion on Answer
I did not understand the claim. What does it mean to “redirect the Torah’s command”? Suppose there were a commandment here—would someone who makes his own bailment contract thereby be fulfilling the commandment of bailees? That sounds far-fetched.
I took a look, and I don’t see what you found in the Sema. The only question there is whether the modified contract requires an act of acquisition or not. I did not see anything there of principle regarding stipulating against what is written in the Torah. By the way, even with bailees there is a stage that can be treated as an act of acquisition (placing the object with him). That doesn’t mean there is no principle in Jewish law of honoring agreements, only that only agreements made through an act of acquisition must be honored.
And the fact that with bailees no act of acquisition is needed when they stipulate may be because there is already an act of acquisition for the regular bailment contract shaped by the Torah, and you only want to modify it rather than apply a different contract. But where there is no contract at all and you want to apply one—there an act of acquisition is required.
As for inheritance, that is a different question, because we indeed do not see it as a contract. A person cannot make a contract about what will happen after his death. That does not seem to me connected to the general discussion of stipulating against what is written in the Torah.
Thank you for the answer.
If one cannot stipulate about what will happen after his death, what is the meaning of the prohibition, “he may not give the birthright to the son of the beloved wife”?
Off the top of my head I see two possibilities:
1. There is no prohibition here, only a determination that it cannot work.
We find in Jewish law several prohibitions that only determine that something cannot take effect (and do not prohibit doing it). According to the view that if one acted, it is ineffective, this is the nature of Torah prohibitions in general. And regarding declaring produce and fields ownerless in the Sabbatical year—if it lapses automatically, what is the prohibition not to do so? And likewise with the remission of debts? Similarly, with a firstborn animal there is a commandment to consecrate it even though it is holy from the womb.
2. There is a prohibition here because one can stipulate regarding inheritance law. In inheritance law there is a special rule that a person can stipulate regarding inheritances so long as he transfers to a legal heir. He cannot transfer an inheritance to someone who is not among his heirs. See Yad Ramah on Bava Batra 130, section 6, and Maimonides, Laws of Inheritance 6:2. This is the rule of Rabbi Yohanan ben Beroka. However, there are contradictions to this in Maimonides (see, for example, Meiri to Bava Batra 126a).
I just now saw an article by Rabbi Rabinovitch that deals exactly with this:
Thank you very much!
If this interests you [in the meantime I saw that you wrote a few things about it at the end of root 14], see Sema on Choshen Mishpat 66, subsection 90. What I learned from his words is that in fact, were it not for the Torah, there would be no laws of bailees, because the Torah does not assume a principle that agreements must be honored. Therefore insurance agreements of the type “if there is negligence, I will pay” require an act of acquisition.
With bailees there is a novelty of the Torah, that the bailee’s undertaking to guard makes him liable for payment. And the ability to stipulate against what is written in the Torah is not the ability to make a different contract—that is trivial—but rather the ability, as it were, to “redirect” God’s command, so that even the private agreement of an unpaid bailee to be like a borrower is based on that same command, and therefore even in this case there is no need to perform an act of acquisition.
I started thinking of the same explanation regarding inheritance too, namely that without the Torah there is no inheritance, because how can a person transfer ownership after his death? The Torah introduced that possibility, except that there it forbade the person to stipulate otherwise, and on the contrary compelled him (according to Nachmanides this is a prohibition: “he may not give the birthright”).
Best regards, Nadav