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Review of Recent Halakhic Periodical Literature

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Review of Recent Halakhic Periodical Literature Hyman Tuchman REVIEW OF RECENT HALAKHIC PERIODICAL LITERATURE SPECIFIC PERFORMANCE ly be pecuniary, through the impo- sition of penalties or an obligation An interesting analysis is made to pay damages by the party which by Dr. Z. Warhaftig in the Chesh- defaulted. But the contract could van-Kislev, 1958 issue of SiTUi of not assure nghts of any sort to the "Specifc Performance of Contracts" object itself with which the contract in Jewish Halakhah as contrasted was concerned, certainly not by with the curent secular law in Is- compelling the part to the contract raeL. Can a part to a contract be to produce the object, to hand over compelled to carr out its provi- the property. Transfer of own- sions, or is a monetary penalty the ership occurs simultaneously with only recourse against the defaulter? the agreement to sell or else the As we know, Israeli law denves contract does not afect in any way to a great extent from English law the fact of ownership:' which was introduced into Palestine In English law however the in- after England obtained possession stitution of "specifc performance" of the country under the mandate. of a contract did develop as part of The author, himseH a learned attor- the doctre of equity which "recog- ney and a member of the Israeli nized that not in every case could a Knesset, states that in the event a monetary payment suffce to com- contract is not honored, most legal pensate the part desirng penorm- systems require only the payment ance of the contract. Neverteless, of a penalty stipulated in advance specifc penormance of a contract or the payment of damages. Thus, remains in theory a remedy second- Roman law and the European sys- ary to that of payment of damages. tems derived from it "recognize "Where payment of damages wil money payments as in fact the only fully compensate the innocent par- means of compensation for non-ful- ty, he cannot request specifc per- fillment of a contract. This attitude, formance:' As a result, specifc per- we are told, stems from the Roman formance as a remedy is left entie- concept of ownership which was al- ly to the judgment and discretion of ways regarded as absolute and un- the judge who decides whether or qualied. "Roman law did not tol- not the contract is of the kind where erate limits on ownership, whether payment of damages will constitute created by contracts or by other ob- compensation in fulL. In contracts ligations. Consequently, the result dealig with the transfer of land, of contractual agreement could on- the court wil "almost always apply 145 TRADITION: A Journal of Orthodox Jewish Thought the principle of specifc perform- ties. To establish validity, Jewish ance:' law requires an act of kinyan, the At first, the courts in Palestine affrmation of the validity of and in Israel, once it gained its inde- the contract by a symbolic act by pendence, attempted to liit the the partes to the contract. English concept of specific performance to and Israeli law too require that a "contracts dealing with the sale of contract must be legally valid if real property and even then only specic performance is to be com- when the contract was legally valid, pelled. The contract must in these where the entire price had already systems be in writing. However, if been paid, and where the purchas- a beginning has already been made er had already taken possession of in carrying out its terms, the con- the purchase; or where a beginnig tract can even be an oral one. had already been made in carng In Jewish law, most authorities out the contract and payment of do not require transfer of the prop- damages did not appear to the court erty to the purchaser at the time the suffcient compensation to the party contract is entered into. In Israel desiring fulfllment of the contract:' too, the Supreme Cour does not re- Later, partcularly after the estab- quire such transfer of the property lishment of the State, Israeli courts as a condition for specific fulfllent no longer insisted on the conditions of the contract. that the purchaser already be in In Jewish law, payment of the possession of the land and that he sales price has no bearng on the va- must have already paid its price in lidity of a request for specific per- full. The courts instead accepted the formance of a contract. "If the con- principle that in contracts involving tract is valid, made so by an appro- land transactions, damages cannot priate kinyan . then the contract equal the loss of the land. is effective and its performance can The Halakhah on the other hand be compelled even if the purchaser recognizes the institution of specifc has so far paid not even a penny of performance as a fundamental con- the purchase price." English and Is- cept of its legal system. In the Tal- raeli law, however, require payment mud, Avodah Zarah 72a, we read by the purchaser of the entire sum of a case of a person who makes a specmed in the contract of sale, be- contract to sell an item to another at for a request for specifc perform- an unspecified time in the future. If ance is to be honored. "The order the contract specifies the price, and compelling performance of a con- it is understood that the sale is inde- tract is designed to complete the pendent of the future wilingness or fulfllment of a contract whose par- unwilingness of the seller to sell his tial performance began with the property, then such a contract is le- payment of the prices specified gally valid and must be carred out therein." (and financial compensation is in- In contrast to other legal systems, suffcient). Jewish law compels Jewish law does not grant "unlimit- specmc performance of a con- ed rights of ownership. Only God tract wherever a valid contract has has unlimited rights. The nghts of been entered into between the par- man as an owner are limited and re- 146 Review of Recent H alakhic Periodic Literature stricted. There are kinds and de- MEDICIES ON PASSOVER grees of ownership. Therefore, it is possible to obligate oneself, by a In the Ha-pardes of Nissan, 1959, contractual agreement, to liit Rabbi 1. B. Ness discusses certain one's exclusive rights of ownership. aspects of the laws of Passover as A mortgage confers property rights they relate to medicines. An indi- in the property to the mortgagee. A vidual whose lie would otherwise self-imposed obligation to sell limits be endangered by his ilness may of in some measure the property rights course use, for medicinal purposes, of theowners.. .. .The expected re- even during Passover, material con- sult of a contract is that it should be taining chametz (Leaven). The performed as is. Only where ths is Torah is a law of life and permits not possible can we substitute com- such deviation where life is jeop- pensation and penalties agreed up- ardised. - on in advance, or the payment of But what is the law with regard damages to which one becomes lia- to a person whose ilness requires ble according to law:' him to use medicines containing It is of interest that in the case of chametz, not to preserve his life but contracts for personal services, such to relieve him of otherwise constant as the performance of labor, specifc pain and bodily distress? The par- performance cannot be compelled. ticular case discussed concerns an "The source of this halakhah is the il person for whom his doctor has principle that 'To Me are the people prescribed certain pils and who of Israel slaves' (Leviticus 25:55) has been using the prescription for and not the slaves of slaves:' There- some period before Passover. fore a worker can abandon a job he Jewish law is quite lenient with has agreed to perform even if non- substances used for medicinal pur- performance should lead to mone- poses. Thus, for a sick person who tary loss. Of course, in such a case, is not in any mortal danger, most the worker may have to pay for the materials forbidden to a healthy damage caused. However, "com- person may be used medicinally. pelling a person to work even in the The only condition to be met is that name of fulflling a contract smacks the substance must not be used or of servitude:' eaten in its customary fashion. (Of This principle is found in English course, as stated, where life is in law too and was first expressed in danger the invalid may be given an English cour in 1890, some any substance in any manner pre- 1700 years after its appearance in scribed by the doctor.) Jewish law. In the United States al- Rabbi Ness states that most tab- so one may not.compel the specifc lets are coated with sugar or choco- performance of a contract dealing late to disguise the taste of the pre- with personal services. This is con- scription itself and that this coating sidered a violation of the 13th is applied to the tablet with a paste Amendment to the Constitution of flour and water. Are medicinal which forbids involuntary servi- tablets in the same category as al- tude. monds coated with sugar, which are forbidden on Passover because the 147 TRADITION: A Journal of Orthodox Jewish Thought coating is applied with a Hour and is produced by a non-kosher crea- water paste? . ture. Royal jelly is not honey, but Rabbi Ness notes that since the rather a natural secretion from the Hour paste on the pils is actually stomach of the bee and should eaten and is tasty, it must be con- therefor fall into the category that sidered a food and should be ad- "all which issues from a forbidden judged chametz.
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