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Holding Guarantors to their Commitment? – part II


Beit Din Eretz Hemda - Gazit

Iyar 10 5780
Case: The plaintiff (=pl) reached a settlement with his wife (=wi) over child support in a beit din as part of an agreement to give a get. Wi’s uncle and aunt (=def) obligated themselves in beit din that if the wife would successfully sue to raise the child support, def would pay back to pl the additional sum she was awarded. Beit din gave the obligation the status of a ruling. Wi did sue pl in court, and pl agreed to raise the child support, with the judge giving the agreement the status of a ruling. Pl is now suing def for 31,200 shekels for a few years of additional payments. Def argue that they are exempt for a few reasons: 1. No act of kinyan was made to obligate def, which is necessary because this is not a normal case of a guarantor (i.e., there is no borrower). 2. There was a lack of realization of the likelihood of obligation (asmachta), since def did not know that wi was not bound by the ruling. 3. Furthermore, according to the Rambam, one cannot obligate himself in an open-ended obligation, and one can claim kim li (I follow the minority opinion). 4. The obligation mentions payment in the case where the court rules in wi’s favor, whereas here pl agreed himself to pay.

Ruling: [We were in the midst of discussing whether def’s obligation is valid according to the law of the land, considering that it is arguably against the public interest.]

Par. 30 of the Law of Contracts states that a contract whose purpose or content is illegal, immoral, or contradicts public welfare is null. There have been varied rulings in the courts over whether an agreement to compensate a husband whose wife sues for higher child support contradicts public welfare. A summary can be found in Justice Benzion Greenberger’s ruling (BMS 24590/98). He concludes that the assumption is that it damages the welfare of the children, but if the father can prove that it does not negatively affect them, it is valid. In general, if the wife’s obligation is void because of its impact on the children, the guarantors’ obligation should not apply.

In this case, we do not believe that the def’s paying has a negative impact on the couple’s one daughter or on the public, as we will explain. The obligation to reimburse is not upon wi; if def pay, they will not be able to recoup their losses from her. Therefore, wi will not be deterred from suing for child support, and def’s payment will not deprive the daughter of needed funds.

One can argue that indirectly, if an ex-wife knows that her close relatives will have to pay, she will not sue for increased child support. In general, the courts do not factor in indirect effects. Also, this must be weighed against the grave damage caused if we easily strike down agreements made in divorce settlements. First, there is a public interest in agreements being kept. Second, if those negotiating a divorce settlement know that the settlement will not be kept, husbands are less likely to give a get when called for. Also, in this case, specifically, the amount agreed upon for child support, while somewhat low, is not extremely low.

[We will finish off next time with a look at whether the conditions for payment were met.]

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