YeshivaThe torah world Gateway
Beit Midrash
- Sections
- Chemdat Yamim
- P'ninat Mishpat
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."
P'ninat Mishpat (832)
Various Rabbis
83 - Mistaken Public Mechila
84 - The Validity Representatives of the Public
85 - Overpricing as a Reason to Nullify a Sale
Load More
P'ninat Mishpat P'ninat Mishpat: Undoing a Problematic Partnership – part III
based on ruling 84061 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'ninat Mishpat: Multiple Agreements and Parties – part IV
based on final ruling of 80082 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'ninat Mishpat: A Contractor’s Leaving the Job in the Middle – part III
based on ruling 84013 of the Eretz Hemdah-Gazit Rabbinical Courts
Rabbis in Midrash
Lessons
fast navigation
Shoftim TESHUVA IN COURT OF LAW?
Parshat Shoftim-Chodesh Elul
Why does parshat Shoftim always come out during Elul? This innovative and central explanation is an eye-opener regarding many aspects of Judaism.
The Month of Elul TESHUVA IS THE ANSWER
The month of Elul serves as a vital time for self-reflection and personal accountability to prepare for true repentance.
P'ninat Mishpat P'ninat Mishpat: Realtor’s Fee on Large Commercial Building – part I
(based on ruling 85031 of the Eretz Hemdah-Gazit Rabbinical Courts)
(based on ruling 85031 of the Eretz Hemdah-Gazit Rabbinical Courts)
P'ninat Mishpat Complaints about Contractor’s Work – part II
(based on ruling 83037.1 of the Eretz Hemdah-Gazit Rabbinical Courts)
(based on ruling 83037.1 of the Eretz Hemdah-Gazit Rabbinical Courts)
Chemdat Yamim Moreshet Shaul: The Goal of an Agricultural Yeshiva – part I
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 263 (address at the laying of the cornerstone of the Yeshiva Chakla’it in Kfar Haroeh)
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 263 (address at the laying of the cornerstone of the Yeshiva Chakla’it in Kfar Haroeh)
Chemdat Yamim The Goal of an Agricultural Yeshiva – part II
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 263 (address at the cornerstone laying for the Yeshiva Chakla’it in Kfar Haroeh – 1938)
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 263 (address at the cornerstone laying for the Yeshiva Chakla’it in Kfar Haroeh – 1938)
Re'e NEVER EXTREME EXCEPT ISRAEL
Parshat Re'eh
Judaism is against extremism, so how can we understand the seemingly extreme statements found in our sages in favor of living in the Land of Israel and against living in Chutz laAretz? The article deals with the seeming contradiction between the strength of Free-Will and the strength of being influenced by our surroundings.
Ekev DANCE FOR ISRAEL- FOR YOUR BENEFIT
Parshat Eikev
Description: The 7 Haftarot we read after Tisha B'Av ("Shiva D'Nichemta") surely get us excited that they're coming TRUE, and awaken us to yearn, dance & join the return to Zion! The short article also deals with the problems and solutions facing the American Jewish community as discussed at a recent panel, as well as the question why Jews come from America to Israel to help when we face problems, but Israelis don't come to aid Jews in America when they face anti-Semitism.
P'ninat Mishpat P'ninat Mishpat: Complaints about Contractor’s Work – part II
(based on ruling 83037.1 of the Eretz Hemdah-Gazit Rabbinical Courts)
(based on ruling 83037.1 of the Eretz Hemdah-Gazit Rabbinical Courts)
Chemdat Yamim Moreshet Shaul: Twin Foundations
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 690
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 690
