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Are implicit assumptions binding according to Halacha?
By Dayan Yehonatan D. Hool, Yerushalayim
In this week’s Parasha, the Torah discusses the garments that the Kohanim wore during their service in the Mishkan. The Gemara[1] explains that each of the garments that the Kohanim wore atoned for a different sin. Among them, the Hoshen HaMishpat – the breastplate – atoned for erroneous judgments. The Kli Yakar[2] explains that in every judgment, in addition to the evidence involved, the judge must use his intellect and intuition to come to a just decision. In Torah literature, it is the heart of the Dayan in which the deliberation relating to judgment takes place. It is for this reason that the breastplate, which atoned for erroneous judgment, was worn on the heart.
In fact, in every financial transaction between two or more parties, the intent of each party plays a crucial role. Sometimes, a limiting condition is explicitly expressed, and other times, the transaction may be bound by implicit conditions which are self-understood. In this article we will focus on the halachic principles of conditions, assumptions, and circumstantial evidence.
Tort Law vs. Contract Law
Generally, one’s financial and monetary activities fall into two categories: those involving the actions and intentions of one party, and those involving the actions and intentions of two or more parties. Stealing, causing damage and the like fall under the first category, whereas borrowing, buying and selling and the like fall under the second.
Although there are detailed Halachot for both of these categories, there is a fundamental difference between them. In situations involving an agreement between two parties, the Halacha recognizes that the intentions of the parties play an important part in defining the mutual commitments. The Halacha provides a default position in these cases, but allows much leeway for the two parties to adapt their agreement to fit their needs. For example, the Torah forbids one to overcharge a customer. If the buyer is overcharged more than a sixth of the value of the item being sold, he may invalidate the sale. However, if at the outset the two parties agree that they forgo their rights in this respect, the Halachot of overcharging or underpaying (Ona’ah) do not apply.
Owner is the Ruler of the Asset
The Hazon Yehezkel elucidates this point as follows:
“It is a fundamental rule in the Torah’s financial laws, that a person is the sole master over his financial assets. Neither the law nor the judge can dictate the fate of his money. This is the way of our Holy Torah – ownership belongs solely to the titleholder. This fundamental strand runs through the issues of a person’s financial activities as a red thread runs through a white cloth. An individual is the sole decision-maker over his property and assets, to the full extent of the law.”
Implicit vs. Explicit
How then does one customize an agreement to effectively represent his specific will?
The simplest way to do so is to make an explicit stipulation at the time of action. For example, one who sells an item to his friend, and clearly stipulates that the buyer has no claim if he is overcharged, and the buyer agrees; if indeed the buyer was overcharged, he will have no Halachic recourse.
There are some rules as to how to express a condition in a way that it is effective. One such rule is that a condition must clearly state both possible scenarios (T’nai Kaful), meaning that one must stipulate that if “x” occurs then the sale is valid, and if “x” does not occur then the sale is invalid. Another such rule is that the condition must be expressed prior to the effect (T’nai Kodem L’Maase). These rules are collectively known as “Mishpete HaTena’im” – the rules of stipulations.
Condition Rules in Monetary Matters
While these rules are required for all Kiddushin (marriages) or Gittin (divorces) that are made upon precondition (a practice which has been effectively banned by the later Poskim), when it comes to monetary matters, there is a difference of opinion amongst the Rishonim whether or not these rules apply. Although the Rambam, Rabbenu Tam and the Rosh require these Mishpete HaTena’im for financial transactions too, the Tur[3] quotes the Rashbam and some Ge’onim as ruling that these rules do not apply.
The Netivot HaMishpat[4] cites the ruling of the Ateret Tz’vi (based on the Bet Hillel) that in any monetary transactions that are conditional, Mishpete HaTena’im are not required as long as there was a simple declaration of the condition at the time of the transaction. The Mishpat Shalom explains that the logic behind this is that the Mishpete HaTena’im tend to be complex and difficult to apply. Furthermore, most people are not aware of these rules or of the correct way to use them. Therefore, if we were to insist on these rules, it would make it very difficult to make everyday transactions conditional. Thus the accepted practice has become to rely on the opinion of the Poskim who do not require Mishpete HaTena’im in financial transactions[5].
Nonetheless, in real estate transactions – which generally do have conditions attached – it is customary to write into the contract that all of the conditions and stipulations in the contract are to be enacted in the most effective way possible according to our Sages and monetary Halacha.
“Umdena”: Binding Presumptions
Let us take the concept of conditional transactions further: one may even restrict the effect of a transaction without actually expressing a condition, if there is no doubt in anyone’s mind that one intends to act only upon a specific set of circumstances. If those circumstances were to change in a way that makes the transaction unnecessary or undesirable, then one can retract from it.
One classic example would be the case of a man on his deathbed who gives away all of his possessions to others. He subsequently recovers and returns to his health. Since it was clearly evident that he only gave everything away because he thought that he was going to die – he may take back everything he gave away, even if a valid Kinyan was executed to effect these transactions. Situations such as this, that create presumptions based on what would be clearly evident to all independent observers, are referred to as an “Umdenah”, and are regarded as though there was an explicit stipulation at the time of the transaction (obviously, in order to compel a party to pay or give back money based on an Umdenah, it must be a compelling presumption beyond any doubt).
Common Applications of “Umdena”
Accordingly, sometimes in our daily dealings, an agreement or transaction will include implicit clauses that were not explicitly stated by the parties but are automatically assumed. For example, if everyone in this city/state/country subjects themselves to specific conditions, they are assumed to be agreed upon unless explicitly stated otherwise. Thus, with regard to employer-employee agreements, the local custom is binding unless agreed otherwise. One such implication would be in a case where the local law provides for a severance pay in the event that an employee gets fired, this becomes obligatory in Halacha too, because we assume that both parties to the contract agree to the terms of the employment as defined by local custom, unless they specify otherwise.
Sources:
[1] זבחים פ”ח ע”ב
[2] כ”ח, ט”ו
[3] חו”מ סי’ רמא
[4] סי’ רז סק”א
[5] ע”ע ערוה”ש שם ס”ו