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Beit Midrash Series P'ninat Mishpat

Chapter 82

The Validity Representatives of the Public

Various Rabbis29 IYAR 5769
593
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Case:
P'ninat Mishpat (575)
Various Rabbis
81 - Mistaken Public Mechila
82 - The Validity Representatives of the Public
83 - Overpricing as a Reason to Nullify a Sale
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Two religious parties taking part in municipal elections agreed to run on a united ticket. The first two seats were supposed to be for representatives of one party (=def), while the third was supposed to be from the other party (=pl). The agreement states that if the list would secure only two seats, each party would seat one representative. That is what happened, and pl demands that one of def’s representatives resign to make room for one of pl’s. Def claims that the agreement was an asmachta (an agreement whose conditions were not envisioned to occur) and is not binding.


Ruling: The Rosh (Shut 6:19) says that the agreements of communal leaders do not require a kinyan to be binding and that all matters that they decide, even orally, are as if they were signed and delivered. The Rama (Choshen Mishpat 163:6) concurs. This applies not only to the community as a whole but even to sub-groups within the communal sphere, including the agreements of trade groups (Shulchan Aruch, Choshen Mishpat 231:27; see Gra ad loc.:12).
In our case, the issue is not that there is a lack of a kinyan but that of an obligation to do something (kinyan devarim), for which even a kinyan is not usually binding. However, the Maharik (181) says that the communal nature of an agreement overcomes the type of impediments that nullify kinyanim, such as davar shelo ba la’olam (an agreement that relates to an object or situation that does not exist at the time of the kinyan). The Rashba (Shut IV, 417) also says that the agreement of people regarding accepting municipal positions is binding even if they made a moda’ah (statement that they agreed only under duress) before witnesses because communal agreement must be upheld, as individuals are subservient to the community. The Mabit (IV, 228) also states that the claim of asmachta is not valid in regard to public matters.
One should point out that even if a given agreement is not technically enforceable according to halachic guidelines, it is still incumbent upon public representatives to honor it. As the Terumat Hadeshen (342) writes: "Regarding anything that the community is involved in, one must follow their minhag, according to the order they follow, according to their needs, for if not ... there will always be quarrels between them. That is why, in the first place, they relinquish their rights one to the other ... and they come to a full decision to follow their minhag, as the Maharam said that partners make kinyanim to each other with words alone without an act of kinyan."
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