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Renege on an Agreement


Rabbi Moshe Leib Halberstadt

Tishrei 27, 5771
I consult on civil litigation cases that can take years to finalize and therefore I must wait for compensation. In two of these cases the checks from the law firm “bounced” despite the fact that I am paid out of proceeds from successful outcomes. In other words, in both instances I was responsible for creating revenue that covered the cost of my services and though I received checks in payment, the accounts upon which they were drawn did not contain sufficient funds. After nearly a year I am still attempting to collect on one of these cases and G-d willing this will be resolved very soon. I have one pending matter with this individual. Because of non-payment in the aforementioned instances, I would like to renege in my verbal agreement to consult on this final matter. Delayed payment and the difficulty in pursuing payment has caused unnecessary problems for me and my family. A secondary reason is a discernibly growing trend in my advice being ignored--to the peril of the litigant. I have already invested more than a year of work on this final matter and I am troubled about reneging on my word. There is no written contract. Is this a Mechusar Amana or do I have cause to renege from my verbal agreement to consult on this matter? Notes: The other person is not observant and we have no bet din in our region. I am Sephardi.
It is not right to give an answer to this specific question without hearing both sides and all relivant details, like any question that has two parties. (The Talmud Tractate Sanhedrin 7b learns this from the verse: “Hear [disputes] between your brothers and judge” Deuteronomy 1, 16. it is also ruled in Shulchan Aruch Choshen Mishpat 17, 5). Generally speaking we can say that the issue of Mechusar Amanah (breach of faith) is indeed very serious. In Tractate Baba Metzia 48a it says that one who retracts from verbal transactions, the spirit of the Sages is displeased with him. The Nimukei Yosef (29a opening word Itmar and in Darkei Moshe Choshen Mishpat 204, 2) adds that it is called that he is not acting in the ways of the Jewish people. The Perishah (ibid 11) writes on the words of the Tur that a person should keep his word; as it says (Zephaniah 3, 13) "The remnant of Israel shall neither commit injustice nor speak lies". Later on in the Gemara ibid 49a there are who learn this issue from the verse “A just hin” [shall you have] (Leviticus 19, 36) that your “yes” [hen] should be just and your “no” should be just. This is ruled in Shulchan Aruch Choshen Mishpat 204, 7. and in Rema 11. especially that you are a Sephardi and Maran the author of Shulchan Aruch is stringent like the Rambam’s opinion that even when there is a change in the terms such as the rate going up one should not retract (Sema ibid 12). On the other hand there are certainly cases where a person can retract as one can retract even from a transaction that was done with a complete assent in cases of false acqusition. See Rambam, Laws of Sale Chapter 15 and Shulchan Aruch Choshen Mishpat 232 – 234.
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