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Oppressive-Exploitative Contracts: A Jewish Law Perspective

Published online by Cambridge University Press:  24 April 2015

Shahar Lifshitz
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Extract

The people of the land have used oppression, and exercised robbery, and have wronged the poor and needy, and have oppressed the stranger unlawfully.

(Ezekiel 22:29)

Ezekiel's lament emphasizes that oppression in general, and especially oppression of the needy and the distressed, is always an extremely immoral and illegal act. In the Bible, “oppression” describes the unilateral taking of another person's property or depriving her of her rights. Yet, sometimes even an apparently voluntary agreement might be oppressive. Preventing oppression, therefore, has became one of the declared aims of contractual doctrine, as in the well-known American doctrine of unconscionability.

Unconscionability and oppression are broad concepts that describe a wide-ranging array of cases and situations. Not surprisingly, therefore, despite the formidable and complex body of legal writing on the unconscionability doctrine, a great deal of ambiguity remains as to its theoretical basis, as well as its practical content.

In this article I seek to enrich the modern Western discussion by analyzing Jewish law doctrine which addresses the issue of oppressive exploitative contracts, an approach which is both unique and to date largely neglected by scholars in the area. This Jewish law doctrine developed in response to a specific kind of oppressive contract, in which a semi-monopolistic party exploits the distress of a needy party in order to demand an above-market price (hereinafter referred to as oppressive-exploitative contracts).

Type
AALS Jewish Law Section Papers
Information
Journal of Law and Religion , Volume 23 , Issue 2 , 2008 , pp. 425 - 453
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2008

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References

1. All Biblical citations are from the RSV.

2. The term “oppression” (oshek) already appears in the Torah, and relates chiefly to the theft or withholding of a hired person's wages; see Deut 24:14: “You shall not oppress a hired servant that is poor and needy.”

3. On the unconscionability doctrine, see Sect. 2-302 of the Uniform Commercial Code [hereinafter U.C.C. § 2-302] and the Restatement (Second) of Contract § 208 (1981). On preventing oppression as an official aim of the doctrine, see the official comments to the Restatement and to the Code.

4. See N.E.C. Technologies Inc. v. Nelson, 478 S.E.2d 769, 771-775 (Ga. 1996). Unconscionability, as set forth in U.C.C. § 2-302 (2005), has been recognized, not as a concept, but as a determination to be made in light of a variety of factors; see also Bishop v. Washington, 480 A.2d 1088, 1094 (Pa. Super. Ct. 1984): “It is impossible to formulate a precise definition of the unconscionability concept.”

5. On the ambiguity surrounding the unconscionability doctrine, see e.g. Marrow, Paul B., Squeezing Subjectivity from the Doctrine of Unconscionability, 53 Clev. St. L. Rev. 187 (2006)Google Scholar; Bridwell, Philip, The Philosophical Dimension of the Doctrine of Unconscionability, 70 U. Chi. L. Rev. 1513 (2003)CrossRefGoogle Scholar.

6. On the differences between the internal and external perspectives in legal research, see Macaulay, Stewart, Friedman, Lawrence M. & Stookey, John, Law & Society: Readings on the Social Study of Law ch. 1 (W.W. Norton & Co. 1995)Google Scholar. On the application of this distinction in the context of studies of Jewish law, see Mautner, Menachem, Equity in Jewish Law, 18 Tel Aviv. U. L. Rev. 639, 648 (1994) (Hebrew)Google Scholar.

7. On the distinction between procedural and substantive arguments, see Leff, Arthur E., Unconscionability and the Code—the Emperor's New Clause, 115 U. Pa. L. Rev 485 (1967)CrossRefGoogle Scholar. Leff's distinction has profoundly influenced the American discourse regarding the doctrines aiming to invalidate flawed contracts in general, and, specifically, the unconscionability doctrine. See infra Sect. I.B.1.

8. Thus, e.g., there is a solid position in Jewish law research that, generally speaking, this legal system does not recognize obligatory contractual commitments. See the extensive discussion in the sources mentioned, infra n. 39. For my response to this position and an explanation of the relevancy of contractual concepts to the type of transactions examined in the current article, despite the weakness of obligatory commitment in Jewish law, see id.

9. On this fear, see Stone, Suzanne L., In Pursuit of the Counter-Text: The Turn to the Jewish Legal Model in Contemporary American Legal Theory, 106 Harv. L. Rev. 813 (1993)CrossRefGoogle Scholar. For fundamental opposition to the attempt to analyze one legal system with the terminology of another, see Raz, Joseph, The Authority of Law: Essays on Law and Morality 84 (Oxford U. Press 1979)CrossRefGoogle Scholar. Englard used these arguments in the past in his critique of Elon's monumental work on Jewish law. See Menachem Elon, Jewish Law: History, Sources, Principles, Pt. I, ch. 3 (B. Auerbach & M.J. Sykes trans., Jewish Publication Socy. Am. 1994). See Englard, Izhak, Research in Jewish Law: Its Nature and Function, in Jewish Law Annual, Supplement 1: Modern Research in Jewish Law 21 (Jackson, Bernard S. ed., Brill Academic Publg. 1980)Google Scholar [hereinafter JLA Supp 1]. For Elon's response, see Menachem Elon, More about Research into Jewish Law, in JLR Supp. 1, supra at 66. There is an extensive scholarly literature on this topic. See e.g. Jackson, Bernard S., Essays in Jewish and Comparative Legal History ch. 1 (Brill Academic Publg. 1975)Google Scholar; Kirschenbaum, Aaron, Towards a Restatement of Jewish Law: The State of Scholarly Research in Jewish Law Today, in Jewish Law Annual, Supplement 2: Jewish Law in Legal History and the Modern World 97 (1980Google Scholar); see also Albeck, Shalom, Law and History in the Research of the Halakhah, in The Law of Property and Contract in the Talmud 13–65 (Dvir Co. LTD 1976) (Hebrew)Google Scholar; Jackson, Bernard S.et al., Halacha and Law, in The Oxford Handbook of Jewish Studies 643–79 (Goodman, M. ed., Oxford U. Press 2002)Google Scholar; Edrei, Arye, Why Teach Jewish Law, 25 Tel Aviv U. L. Rev. 467–487 (2001) (Hebrew)Google Scholar; Radzyner, Amihai, From Dogmatist to Historian: Asher Gulak and the Research on Jewish Law in the Hebrew University, 1925-1940, 43 Jewish Stud. 169–200 (2005–2006) (Hebrew)Google Scholar.

10. On the scholarly methodology guiding this article, see infra n. 37.

11. In this spirit, see Stone, supra n. 9; Friedell, Steven F., Aaron Kirschenbaum on Equity in Jewish Law, 1993 BYU L. Rev. 909, 919 (1993)Google Scholar; for a more sympathetic approach for the possibility of the influence of Jewish law on American law, see Levine, Samuel J., Jewish Legal Theory and American Constitutional Theory: Some Comparisons and Contrasts, 24 Hastings Const. L. Q. 441 (Winter 1997)Google Scholar; Rosenberg, Irene M. & Rosenberg, Yael L., Guilt: Henry Friendly Meets the MahaRaL of Prague, 90 Mich. L. Rev. 604, 614–615 (1991)CrossRefGoogle Scholar. An intensive debate on this issue is being waged in Israel. See e.g. the exchange between Elon and Englard, supra n. 9. For an analysis of this aspect of the controversy, see Sapir, Gidi, Two Learned Scholars among Us, 25 Tel Aviv U. L. Rev. 189 (2001)Google Scholar.

12. For the convenience of readers not familiar with Jewish law sources, the following is a very brief and general survey of the sources cited and discussed in this section. Jewish law consists of the Written Law (the Pentateuch) and the Oral Law. Circa 200 CE Rabbi Judah ha-Nasi redacted a written version of the Oral Law, known as the Mishnah. This work is divided into six orders, each of which is divided into tractates. Although the redaction of the Mishnah was the legal apex of the period known as the Tannaitic (70-220 CE), it does not include all the scholars of the Mishnaic era (the Tannaim). Some of the Tannaitic scholarship not included in the Mishnah was redacted in the composition known as the Tosefta. Other teachings by the Tannaim not included in the Mishnah and the Tosefta are called baraitot; these dicta are cited and constitute the raw material for legal discussion in later texts, mainly the Babylonian and Palestinian Talmuds.

The next three centuries (ca. 200-500 CE) after the Tannaitic period were dominated by scholars called Amoraim (interpreters). At least officially, the Amoraim were subordinate to the authority of the Tannaim, and they often try to support their teachings with the Tannaitic sources, or to reconcile their precepts with these earlier sources. The record of this commentary is the Talmud, of which there are at least two versions: the Palestinian version which, together with the Mishnah, is labeled the Palestinian (or Jerusalem) Talmud; and the Babylonian version (which is much more influential and widespread) that, together with the Mishnah, comprises the Babylonian Talmud.

The post-Talmudic history of Jewish law is divided into three main eras: (1) the Geonic era (from the late 6th century to the first half of the 11th century); (2) the Rishonim (early scholars; from the second half of the 11th century to the middle of the 16th century); and (3) the Ahronim (later scholars; from the late 16th century to the present).

Generally speaking, in this article I make use of three types of works characteristic of all periods of the post-Talmudic writing. The first type includes the commentaries on the Talmud, and the second consists of legal codes that attempt to systematically organize the laws derived from the Talmud. In this article, I will mainly cite the Mishneh Torah (literally, the “repetition of the law”) compiled by Moses Maimonides in the 12th century, and the Shulhan Arukh (the “set table”) by R. Joseph Caro (with the comments of R. Moses Isserles), which is considered by many to end the period of the Rishonim and to be the authoritative codex of Jewish law. The third type is the responsa literature, in which a sage relates to a specific instance that was either brought before him directly, or described in writing.

13. Babylonian Talmud, Bava Kamma 116a (the translations of texts from the Babylonian Talmud generally follow the Soncino ed., I. Epstein trans. & ed., 1961). Unless otherwise stipulated, the references and commentaries to Talmudic tractates relate to the Babylonian Talmud.

14. Id.

15. Id.

16. Id.

17. On the question to what extent the fisherman must base his claim, and the relationship between the loss sustained by the fisherman and the differential between the market to contract price, see infra nn. 69-72.

18. A sughay is a discursive Talmudic unit.

19. bYevamot 106a.

20. bBava Kamma 116a-b.

21. Like the fugitive case, in this discussion, the Talmud uses the wording “his wages in full.”

22. Tosafot, Bava Kamma 116b, s.v. “Lehavi Keruv ve-Durmaskinan la-Holeh.” Tosafot (supplements) are a collection of comments on the Talmud that follow the order of the Talmudic tractates.

23. But see David Ben Solomon Ibn Abi Zimra, She'eilot u-Teshuvot Radbaz vol. 3, 6:2279 (n.p. 1972) (1749), who argues that the discussions in the Talmud also speak of economic distress; the fugitive, for example, had been “imprisoned for a monetary matter.”

24. The analogy between life-and-death situations and economic distress can be supported by the Talmudic discussion of the fugitive (supra n. 13) with its analogy between the case of the fugitive and that of economic distress (honey dripping from jars).

25. See Moses Maimonides, Mishneh Torah, Laws of Robbery and Lost Property 12:6 (H. Klein trans., West Publg. Co. 1954) (1475), who rules:

If one travels with a jar of honey and the other with empty bottles, and the jar of honey cracks and the owner of the bottles says to the other, “I will not catch your honey in my bottles unless you give me half of it—or a third of it—or so many denar,” and the owner of the honey agrees to this and says, “Very well,” the rule is that he is regarded as having spoken in jest and need not give him more than the usual fee, for he has caused the other no loss at all

(infra the “honey jars” example).

26. The simple understanding of the fugitive case is that this is the only ferry at the river available at the time of his pursuit. In contrast, Rabbi David ben Solomon Ibn Abi Zimra (supra n. 23) argues that the fugitive is in distress, even if he could avail himself of the services of another ferry, and even if he were “imprisoned for a monetary matter,” because he was in a hurry in his distress. Significantly, according to Radbaz, this is not an objectively monopolistic situation, but from the subjective viewpoint of the fugitive, the sense of coercion is similar to that experienced by a party facing a monopoly.

27. In the fugitive case, the offer to pay an excessive price presumably comes from the fugitive, but it appears from the context that this proposal is born out of the refusal to act at the regular price. See in this spirit Bezalel ben Abraham Ashkenazi, Shitah Mekubetzet (n.p. 1989) (1762), on Bava Kamma 116a, that relates regarding the fugitive: “Provided that the boatman refused to ferry him for the regular price, until he agreed to pay a gold denar.”

28. As we saw, supra n. 19, the Talmudic discussion is limited to an unsuitable brother-in-law. The law dictates that an unsuitable brother-in-law may not perform yibum for the widow (i.e., marry her). Therefore, the brother-in-law could not argue that the demand for payment in exchange for halitzah results from the need to compensate him for his loss.

29. See Moscovitz, Leib, Talmudic Reasoning: From Casuistics to Conceptualization (Paul Mohr Verlag 2002)Google Scholar.

30. See e.g. Maimonides, supra n. 25, Laws of Robbery and Lost Property 12:7, who summarizes the law and the exception as follows:

Similarly, if one escaping from prison comes to a ferry and says to the ferryman, “Take me across and I will give you a denar,” and he is taken across, the ferryman receives only the usual fee. If, however, there is a fisherman there to whom he says, “Leave your net and take me across,” he must give the fisherman whatever he stipulates. The same rule applies in all similar cases.

31. See e.g. Maimonides, supra n. 25, who applies the jesting rule in cases of economic distress, as well.

32. See Moses Ben Nahman (Nahmanides), Hiddushei ha-Ramban (Novellae on the Talmud) 31 (Yevamot: Or-Olam Com. 1962) (1740), on Yevamot 106.

33. See the case discussed by Bacharach, Jair Hayyim, She'eilot u-Teshuvot Hawat Yair vol. 2, 186 (Kots, Shimon ed., Eked 1997) (1699)Google Scholar.

34. See infra nn. 47-49.

35. See the case brought by Bertinoro, Obadiah, Commentary on the Mishnah (1548–1549), Bekhorot 4:6Google Scholar.

36. See e.g. the case discussed by Solomon Luria, She'eilot u-Teshuvot Maharshal ch. 24-25 (Otzar ha-Sefarim 1969) (1599).

37. At this juncture, I wish to emphasize that in this part, I conducted neither a historical study nor a Talmudic one, but rather a legal study of the chain of halakhic texts from the Talmud to the present. This has dramatic consequences for the type of research and the methodology it employs.

The methodology of this article is deeply influenced by Dworkinian jurisprudence in at least three aspects: First, Dworkin customarily describes the law as a novel composed by a chain of writers, each of whom acts both as an interpreter of his predecessors and as an independent author. See Dworkin, Ronald, How Law Is Like Literature, in A Matter of Principle 146 (Oxford U. Press 1985)Google Scholar. In this spirit, the current article perceives the post-Talmudic literature not as interpretation, in the narrow sense of the term, of the Talmud (although the Babylonian Talmud is regarded as the obligatory founding text of Jewish law), nor as an independent work distinct from the Talmud, but as a continuing link of a legal work in continual formulation. Consequently, this discussion does not focus on a specific period or opinion, it rather attempts to characterize and describe the “plot” as an assemblage suitable to the time in which this study was written.

Second, similar to Dworkin's distinction between rules and principles, this article seeks to portray the system of principles that explain the various rules on which the invalidation of oppressive-exploitative contracts is based, and to locate the mutual relationships between the detailed legal principles and rules. See Dworkin, Ronald, Models of Rules, in Taking Rights Seriously 14–80 (Duckworth & Co. Ltd. 1986)Google Scholar; see also Rawls, John, A Theory of Justice 56–61 (Belknap Press 1971)Google Scholar.

Finally, in line with Dworkin's call to the judge-interpreter to interpret the law in its best light, we aspire to present the position of Jewish law in its best light. Nonetheless, in other ways, the research methodology used in this article somewhat differs from Dworkin's jurisprudential approach. While Dworkin tends to seek a single legal solution or approach that will describe and explain a given legal system, I maintain that, at least regarding Jewish law with its so numerous disagreements and trends, the presentation of such a single position would be pointless. I therefore prefer a pluralistic approach that seeks to cast light on several competing internal streams and to examine the differences between their fundamental conceptions.

38. See supra n. 7.

39. See Deutch, Sinai, Economic Duress in Contracts Law, 2 Bar-Ilan Leg. Stud. 1 (1982) (Hebrew)Google Scholar.

40. On the ona'ah rule, see Caro, Joseph, Shulhan Arukh Hoshen Mishpat 227 (Tal-Man 1978) (1565)Google Scholar. See also in the research literature Levine, Aaron, Onaa and the Operation of the Modern Marketplace, 14 Jewish L. Annual 225 (1993)Google Scholar; Warhaftig, Itamar, Market Value, Prices and Overreaching, 4 Keter 17 (2004) (Hebrew)Google Scholar; Porat, Binyamin, Overreaching—Legal and Ethical Principles, 4 Keter 292 (2004) (Hebrew)Google Scholar.

41. On this interpretation of ona'ah and the rejection of an alternative interpretation that perceives this law as an example of the contract doctrine of mistake, see Levine, supra n. 40; Porat, supra n. 40. Similarly, the law of Rabbi Huna, holding that a sale under duress might be valid if the usual price for such a transaction was paid (“if they [threaten to] hang him and he sells, the sale is valid”—Bava Kamma 62a; Bava Batra 47b; 48a, b) may be understood as reflecting the superiority of the substantive approach to the procedural one. See the extensive discussion in Porat, Binyamin, Coercion and the Principle of Contractual Justice: Jurisprudential Observatio of “Talyuhu ve-Zabin,” 22 Dine Israel 49 (2003) (Hebrew)Google Scholar.

42. See Deutch, supra n. 39. He uses the Hebrew term gemirat ha-da'at.

43. Deutch finds support for this view in the wording of the above Talmudic passages that explain the ability of the exploited party to claim: “I was merely jesting with you.” According to Deutch, this attests to the nonserious nature of the commitment made by the distressed person. Deutch, supra n. 39, at 29.

44. For this reason, Deutch supports his view with the position of Rabbi Joseph Caro, in Caro, supra n. 40, Hoshen Mishpat 264:8, that limits the invalidation of oppressive-exploitative contracts to the instance in which the distressed person's commitment has not been realized. The distinction between the fully executed transaction and the commitment, which Shulan Arukh requires in the context of exploitation contracts is recognized by Jewish law also in the context of the law of duress. See Deutch, Sinai, Gemirat Da'at in Concrete Acts of Acquisition and Commitments in Jewish Law 59–65 (1973) (Hebrew) (unpublished M.A. thesis, Tel Aviv U.)Google Scholar, who connects this distinction with the subject of gemirat ha-da'at. Deutch argues that in a fully executed transaction, a person “finalizes his will” to conduct the transaction despite the coercion. Although I agree that Jewish law in general, and specifically in the context of duress and exploitation, distinguishes between commitments and completed transactions I do not think that this distinction proves that the jesting rule stems from flawed will. I believe that we can think of alternative interpretations of the jesting rule, and yet explain why this law is relevant only to the obligation stage, and not to the final transaction. For example, another explanation of the limitation of the jesting rule to the obligation stage could be the principle of the finality of transactions that forbids reopening transactions that have ended. Additionally, the distinction between the ability to cancel realistic transactions and that of voiding commitments might accord with the positions that stress the inferior status of future obligations in Jewish law (see supra n. 39). This explanation would limit the jesting rule solely to future obligations because of their weak standing in this legal system.

45. On this legal conclusion, see Heller, Aryeh Leib, Ketzot Ha-Hoshen vol. 3, 264Google Scholar:4 (Makhon ha-Rav Frank 1982) (1788-96) (Ketzot Ha-Hoshen is a commentary on Shulhan Arukh).

46. This seems to be the explanation by Yom Tov Ben Abraham Ishbili, Hiddushei ha-Ritba vol. 1 (Novellae on the Talmud) (Yevamot: Mossad Harav Kook 1992) (1787), on Yevamot 106a:

This case is different, for he agreed due to the compulsion. How so? In the case of the unworthy brother-in-law, she was [under duress, for fear of] being chained to him [i.e., being unable to remarry]. And similarly, in the case of the ferry, this was a case of duress, which led him to agree; and a stipulation under duress is accounted as nothing, and only his [regular] wages are coming to him.

47. Ones in Hebrew.

48. See Ishbili, supra n. 46 (Kiddushin: Mossad Harav Kook 1985) (1553), on Kiddushin 8a. See also Ashkenazi, supra n. 27, on Bava Kamma 116a, who states, in the name of Rabbi Menahem Meiri, that the jesting rule applies also in finalized transactions.

49. On the fee of intermediaries, see e.g. Adarbi, Isaac, She'eilot u-Teshuvot Divrei Rivot 396 (n.p. 1989) (1582)Google Scholar; Lev, Joseph, She'eilot u-Teshuvot Mahari Ibn Lev 1:100Google Scholar (photo, repr. 1960) (1587), who discuss the fee of intermediaries in the prism of the jesting rule. The discussion focuses on the gap between the contractual price and what the judge assesses as just compensation for the intermediary's efforts. Cf. Jacob of Lissa, Netivot Ha-Mishpat, Novellae 264:19 (Mishor 1980) (1809), who concentrates on the disparity between the contractual fee and the customary price.

50. See Jehiel, Asher Ben, She'eilot u-Teshuvot Ha-Rosh 64:3Google Scholar (photo, repr. 1954 of 1885 ed.) (1517), who applies the jesting rule to the fee of guarantors.

51. For a discussion of the fees of matchmakers and exorcists in the context of the jesting rule, see R. Moses Isserles's commentary on Caro, Shulhan Arukh, Hoshen Mishpat 264 (printed together with the Shulhan Arukh). Isserles distinguishes between consent to the matchmaker's fee, which has no legal standing unless it corresponds to the proper price, and consent to the exorcist's fee, which is valid in any event. See also Mordecai Ben Hillel, Mordekhai (printed in the standard Talmud editions) (1509) on Bava Kamma 10:172; Hayyim, Elijah Ben, Teshuvot Ha-Ranah ¶ 3, 41 (1960)Google Scholar.

52. In order to resolve the approach that bases the Jewish law jesting rule on a flawed will with the post-Talmudic cases discussed in this part, some recent commentators explain that these cases reflect flawed gemirat ha-da'at as well. For possible support of this view, see Ephraim Navon, Mananeh Efraim, Laws of Hiring 15, p. 67-68 (Moshe Eizenbach 2001), who maintains that elements of distress and even duress exist, at least in the instances of the matchmaker and the exorcist. As I noted, neither the cases nor rabbinical discussions of them focused on this aspect, although they might contain a certain element of lack of choice that joins together with the central issue of contract unfairness.

53. Indeed, some of those who based the jesting rule on the flawed will of the exploited party emphasized the difference between cases which involve distress and other cases in which there is a gap between the contractual price and the market/fair price. See Solomon Cohen, She'eilot u-Teshuvot Maharshakh 2:80 (n.p. 1990) (1586). Cohen discusses the case of a community that hired a rabbi at high wages and wished to cancel the contract with him; see also id. at 1:79, the case of an intermediary. In both cases, Cohen emphasizes that those who base the jesting rule on duress would fully validate agreements with no element of coercion. Cohen, however, also mentions opposing views which focus on the contractual terms and therefore apply this doctrine in instances in which the party's will is not flawed, but the fee is nevertheless not fair.

54. On the claim that the jesting rule is part of the general rule of fairness of contract, see Warhaftig, supra n. 40. Warhaftig suggested different ways of testing contract fairness, such as: (i) a wage that seems proper to the judge, (ii) the objective customary wage, and (iii) the customary wage, while he would also take into account the subjective conditions of the case.

55. According to at least some of the commentators, the possibility of voiding service transactions due to their unfairness was limited to certain transactions in which no concrete acquisition act (which according to Jewish law, symbolizes the finalization of the transaction) is implemented. See e.g. Asher Ben Jehiel, supra n. 50, at 46:3.

56. See e.g. the opinion of Jonathan Ben David of Lunel, Novellae on the Talmud (Bava Kamma: Friedman, S. ed., Feldheim Publisher 1969)Google Scholar on Bava Kamma 116a (this view is cited also in Ashkenazi, supra n. 22, on Bava Kamma 116a, s.v. “Mi,” in the name of Rabbi Jonathan).

57. See supra n. 40.

58. Like some modern approaches that combine procedural and substantive arguments, Jewish law also developed an approach that states that only the combination of one party's distress and an asymmetry between the contractual price and the market price will lead to the voiding of the contract. Such an intermediate approach is taken by Jacob of Lissa, Netivot Ha-Mishpat, Novellae 264:19 (Mishor 1980) (1809), who connects the jesting rule with the general ona'ah rule, but with the former reflecting the interaction between the terms of the contract and the situation of distress.

59. See e.g. Mordecai Ben Hillel, supra n. 51, on Bava Kamma ¶ 174: “The reason is that he [the other party] is in danger and he must rescue him, and take his wages; here, too, one is commanded to bring medicine to the patient.” See also Moses Ben Nahman, supra n. 32, on Yevamot 106a, s.v. “U-de-Amrinan”: “According to one explanation, the reason for the teaching of the baraita is that he must rescue him, on account of [the obligation of] returning a lost article; and for this reason, he is entitled only to the customary price.” See also Menahem Meiri, Beit Ha-Behirah (Makhon ha-Talmud ha-Yisraeli ha-Shalem 1962) (1794), on Yevamot 106a.

60. In the case of the jars of honey (see supra n. 24), the owner of the jars is commanded to offer assistance, by force of the famous Jewish law of “returning a lost article.” See Exod 23:4; and in the Talmud: Bava Metzia 32. See also Besser, Anne C. & Kaplan, Kalman J., The Good Samaritan: Jewish and American Legal Perspectives, 10 J.L. & Religion 197–206 (1993)Google Scholar. In the fugitive and medicines cases (see supra n. 24), the boatman and the laborer, respectively, are duty bound to rescue. According to these commentators, this duty expands the original law of the return of lost property to include human life. In the halitzah case, the brother-in-law is not worthy to be married to the widow, and he therefore is required to perform halitzah and not yibum.

61. On the other hand, these views might allow for the termination of a contract in additional cases in which a person undertakes to do his religious duty, even in the absence of distress. See Mordecai Ben Hillel, supra n. 51, on Sanhedrin, ¶ 704, who links the law of the exploiter with the case of a grandfather (infra the grandfather) who told his son-in-law to study with the latter's son (i.e., the grandfather's grandson), and promised him payment for the teaching. Despite his commitment, the grandfather is exempt from payment. Most of the commentators, however, do not accept this elaboration and think that, even if there is a religious duty to perform the commandment for free, this obligation in itself does not suffice for the legal invalidation of the commitment. See e.g. Samuel, David Ben, Turei Zahav, Yoreh Deah 336:3Google Scholar, who emphasizes that, despite the existence of the religious prohibition, the commitment may not be canceled once it has been given.

62. See in this context the harsh words of Bertinoro, Commentary on the Mishnah, supra n. 35, on Bekhorot 4:6:

I saw a scandal on this matter among the rabbis of Ashkenaz [the Franco-German Jewish center]: the ordained rabbi, the head of the academy, was not ashamed to take ten zehuvim [a large sum of money] for the half an hour of the writing and giving of a single bill of divorce, and two zehuvim, or at the least, one zehuv, to each of the witnesses who signed the bill. As far as I am concerned, he is not a rabbi, but a thief and coercer, because he knows that bills of divorce may be given in his city only with his permission, and the one who must give a bill of divorce is forced to give him all he possesses. (emphasis added).

Note should be paid to the difference between Bertinoro's condemnation of the rabbi's actions, on the one hand, and on the other, the procedural approaches that concentrate on the coercion and the substantive ones that are concerned with the contract terms.

63. While the fugitive case can be based on a commandment in the narrow sense, many authorities had difficulty in locating a parallel commandment in the case of the recalcitrant brother-in-law. In this spirit, see Moses Ben Nahman, supra n. 32, on Yevamot 106a: “For, at any rate, there is no tangible obligation for him to perform halitzah.”

64. See Luria, supra n. 36, at ¶ 25: “This issue of halitzah speaks of those who cannot be compelled to perform [halitzah], for in cases where compulsion is possible, deception is unnecessary.”

65. See Duran, Simeon Ben Zemah, She'eilot u-TeshuvotHa-Tashbez 4:3:20 (1891)Google Scholar:

And in both instances, he is not obligated to act for free, for as regards every commandment that is imposed on the entire world, he need not perform it for free. If, however, one asks for more than what is proper for [this act], this is an improper request, since, in the final analysis, this is his duty.

66. See Solomon Ben Abraham Adret, She'eilot U-Teshuvot Ha-Rashba no. 1240 (1958), who maintains that, ex ante, we may counsel the exploited party to adopt the tactic of “jesting.”

67. See supra n. 60.

68. According to certain interpretations of ona'ah, this law as well might be influenced by the seller's special expenses that led him to sell above the market price. See Levine, supra n. 40, at 248.

69. The Talmud formulates the fisherman's claim subjectively: he could have said to him, “you caused me to lose … a zuz.” See supra nn. 13, 16.

70. For the validation of the contract, even if asymmetry exists between the profit that is denied the fisherman and the contractual price, see Heller, supra n. 45, at 264:2: “But the statements by Rosh [Rabbeinu Asher ben Jehiel] and Ma'adanei Melekh explain in that case that, even if this entails a slight loss, he must be given all that was agreed.”

71. See Jacob of Lissa, supra n. 58, at 264:17: “Whatever he stipulated, even if it appears that he does not profit so greatly; since he could possibly catch in his net the amount of fish equivalent [in value] to the stipulated amount, he [the second party] must pay him the full [stipulated sum].”

72. It might be noted though that, similar to the conclusion drawn from the substantive approaches, Rabbi Moses Isserles permits the fisherman to receive only what he actually lost; and if the contractual price is higher than the sum of the proven loss, he is not entitled to the former. See Ashkenazi, supra n. 56, at 116a: “Rema [Rabbi Moses Isserles], of blessed memory, interpreted this in detail, and this is his wording: […] When he suffers a loss, he is not allowed to take more than what he actually lost.”

73. See Bacharach, supra n. 33, at 186, which considers the shofar blower who was promised a large sum of money for the danger entailed in traveling. Bacharach explains that the dangers of traveling justify a higher than customary fee, and therefore the jesting rule is not applicable.

74. See Moses Ben Nahman, supra n. 32, on Yevamot 106a, who distinguishes between the act of charging an exorbitant price for medicines, which contains all the elements of exploitation with consequent invalidation of the commitment, and the case of a physician who demands a high fee, which is morally justified. In Nahmanides's words “But a physician is entitled to his full fee, because his wisdom was sold to him, and it is worth much money.” See also Caro, supra n. 40, Yore De'a 336:3; but see David Ben Solomon Ibn Abi Zimra, supra n. 23, at 3:556, who maintains that if he is the only physician there, then even according to Nahmanides, we may invalidate this excessive fee.

75. See supra n. 46.

76. See supra nn. 44-45.

77. For the differences between the post-Talmudic periods, see supra n. 12.

78. See Luria, supra n. 36, at ¶¶ 24-25, who discusses a case in which a man became ritually betrothed to a woman, which imposes on her limitations of a married woman, and later agreed to divorce her only for payment. Luria validates the bill of divorce, but invalidates the commitment to pay. He rejects the argument that the man was entitled to demand payment for giving the bill of divorce, “and we should not ask, in the final analysis, why should he give it to her for free, since he does not need this. Rather, this one derived a benefit, but the other sustained no loss; and in such cases, one may be compelled not to act after the manner of Sodom.” See also in an Israeli rabbinical court: A v. B, 89/60, PDR 3, 375:

Although that case speaks of one who deceived, and he [the other party] already exerted himself [i.e., to perform the action], and afterwards he could say: “I was jesting with you,” this certainly is the law ex ante: if we are capable of compelling him, we do so. Since one may be compelled not to act after the manner of Sodom, all that is coming to him is his proper wages. The fact that he [the exploitee] could fulfill his contractual obligation by paying only the regular price is based on [the principle of] “being compelled not to act after the manner of Sodom.”

See also Heller, supra n. 45, at 264:2, who connects the issue of the exploiter with the laws that are derived from “this one derived a benefit, but the other sustained no loss.”

79. See bBava Kamma 20a; infra nn. 81-85.

80. See bBava Batra 12a; infra nn. 86.

81. bBava Kamma 20a.

82. See Cohen, Avinoam, The Development of the “Loss” Element in the Talmudic Sugya “Ze Nehene Ve'ze Lo Hasser” (Legal, Chronological and Literary Analysis), in Te'uda Te'uda X: Studies in Judaica 55 (Tel-Aviv U. Press 1996) (Hebrew)Google Scholar.

83. For an intriguing analysis of the different approaches, see Dagan, Hanoch, Unjust Enrichment: A Study of Private Law and Public Values 114–115 (Cambridge U. Press 1987)Google Scholar. See also Kirschenbaum, A., Equity in Jewish Law: Halakhic Perspectives in Law 185-252 (Ktav Publg. Inc. 1991)Google Scholar. The literature in Hebrew is more extensive. See inter alia, Zeh Neheneh ve-Zeh Lo Haser, 12 Talmudic Ency. 1 (1967) (Hebrew); Blass, Jonathan, Unjust Enrichment including Building and Planting on Another's Property (Hebrew L. Lib. Press 1991) (Hebrew)Google Scholar; Lifshitz, Berachyahu, “This One Derived a Benefit, But the Other Sustained No Loss ”—“Benefit Which Does Not Entail Loss to the Other”?, 37 Ha-Praklit 203 (1987) (Hebrew)Google Scholar; Cohen, Avinoam, “If One Occupies Another's Property without His Permission” (she-lo mi-da'ato)—Even Against His Will? A Literary and Legal Analysis, 20–21Google Scholar Dine Israel 553 (2000-01) (Hebrew).

84. According to one understanding of this approach, without any loss incurred by the benefactor, no obligation is created for the beneficiary since there is insufficient linkage between the benefactor and the benefit. Following this understanding, only loss by the property owner creates the connection between the benefit and the owner's property. For this explanation, see the novella on Bava Batra by Shkop, Simeon Judah, Hiddushei Rabbi Shimon Yehudah Ha-Kohen ¶ 4 (1970)Google Scholar, and its analysis by Lifshitz, supra n. 83, at 206-208. For a similar approach, which indicates that the problem lies with the abstractness of the benefit for the property owner, see id., at 212-213. Another view bases the Talmudic discussion on what we imagine would have been the agreement by the parties to the transaction. See Albeck, Shalom, The Law of Contract and Property in the Talmud 192 ffGoogle Scholar. (Dvir Co. LTD 1976) (Hebrew); and the critique by Lifshitz, supra a 83, at 208-212.

85. For this approach, see Dagan, supra n. 83; Lifshitz, supra n. 83, at 213.

86. This approach was developed mainly by Jacob Joshua Falk, Penei Yehoshua, on Bava Kamma 20a. On a possible connection between “the manner of Sodom” and “this one derived a benefit,” see Lifshitz, supra n. 83, at 213-218. See also Solomon, Norman, Concepts of Zeh Neheneh in the Analytical School, 3 Jewish L. Annual 49 (1980)Google Scholar; Dagan, supra n. 83, at 115-120. For an approach that dissociates these two Talmudic discussions, see Albeck, supra n. 83, at ch. 4. See also the extensive discussion in Kirschenbaum, supra n. 83.

87. The classic example involves two brothers who inherited a plot of land from their father. The general law requires that the exact property holding of each be determined by a lottery. One of the brothers, however, owns a plot adjoining the inheritance, and wishes to create territorial continuity. The “manner of Sodom” rule prevents the other brother from opposing this wish and insisting on the lottery. There is extensive literature on this subject. See e.g. Lichtenstein, A., Towards an Understanding of “Coercion over Sodom Qualities,” 1 Stud. Jewish Themes Contemporary Am. Scholars 362 (1972) (Hebrew)Google Scholar; Shilo, S., Kofin alMidat S'dom: Jewish Law's Concept of Abuse of Rights, 15 Israel L. Rev. 49 (1980)CrossRefGoogle Scholar. On the connection between “the manner of Sodom” and “this one derived a benefit,” see Dagan, supra n. 83, at 114-115.

88. See e.g. the view of Tosafot, Bava Batra 12b, s.v. “Kegon.” Cf. the opinion of Ravyah (Rabbi Eliezer ben Joel of Bonn) cited by Mordecai Ben Hillel, for example, supra n. 51, on Bava Kamma, 2:16, who maintains that the owner may be compelled to allow the use of his property.

89. This is the authoritative ruling: Caro, supra n. 40, at Hoshen Mishpat 363:7.

90. For a thorough discussion of the logic of this exception to “this one derived a benefit,” see the position of Falk, supra n. 86; for a scholarly discussion of these positions, see Lifshitz, supra n. 83. See also Dagan, supra n. 83, at 117.

91. See Dagan, supra n. 83.

92. There nevertheless is a significant difference between the Talmudic discussions. As regards “this one derived a benefit,” it is commonly understood that the ex post exemption for the tenant is conditional on the owner's not having protested, ex ante, at this use of the courtyard. But see Cohen, supra n. 82, who agrees that this is the accepted view among the decisors, but claims that a different conclusion might be indicated by the discussion in the Talmud. In the case of an oppressive-exploitative contract, however, the exemption from paying the excessive price remains in force, even though the exploiter explicitly refused, ex ante, to perform the service at the customary price.

93. A decade ago, Professor Menahem Mautner, a prominent Israeli scholar, described a major difference between Jewish law and liberal secular legal systems. He wrote:

The theology on which Jewish law is founded is completely different from the political theory on which modern Western legal systems are based. Jewish law is a legal system of obligations […] while the political theory on which modern Western legal systems operate is the liberalism that perceives man as the possessor of rights, as the possessor of protected interests, and as one who is entitled to act in an autonomous manner.

On the tension between Jewish law as an obligation legal system, and the American legal system that focuses on the individual's rights, see Cover, Robert M., Obligation: A Jewish Jurisprudence of Social Order, 5 J.L. & Religion 65 (1987)CrossRefGoogle Scholar.

94. Indeed even Hanoch Dagan, after examining the moral conception characteristic of “this one derived a benefit,” argued that this conception accords with the Jewish moral ethos, but is contrary to the emphasis of property rights in the American ethos. Dagan, supra n. 83.

95. See Murphy, Liam, Beneficence, Law, and Liberty: the Case of Required Rescue, 89 Geo L.J. 605, n. 23 (2000–2001)Google Scholar; see also Hyman, David A., Rescue without Law: An Empirical Perspective on the Duty to Rescue, 84 Tex. L. Rev. 653, 655 (2006)Google Scholar: “The common law approach to rescue is straightforward. Absent a limited number of specific exceptions there is no duty of rescue … [and] the no duty rule may prevail in forty-seven of the fifty states.”

96. On the communitarian challenge to liberalism, see e.g. Sandel, Michael J., Liberalism and the Limits of Justice (2d ed., Cambridge U. Press 1998)CrossRefGoogle Scholar; Macintyre, Alasdair C., After Virtue: A Study in Moral Theory (2d ed., U. Notre Dame Press 1994)Google Scholar; The Communitarian Challenge to Liberalism (Paul, Ellen Frankelet al. eds., Cambridge U. Press 1996)Google Scholar. On the aspirations of modern liberal thinkers to incorporate communitarian values within liberal values, see Kymlicka, Will, Liberalism, Community, and Culture (Oxford U. Press 1989)Google Scholar; Galston, William, Liberal Purposes: Goods, Virtues, and Diversity in the Liberal State 79–162 (Cambridge U. Press 1991)CrossRefGoogle Scholar.

97. See Macneil, Ian R., Exchange Revisited: Utility and Social Solidarity, 96 Ethics 567 (1986)CrossRefGoogle Scholar; see also Gordon, Robert W., Macaulay, Macneil, and Discovery of Solidarity and Power in Contract Law, Wis. L. Rev. 565 (1985)Google Scholar. At least some of the communitarians go beyond the value of sharing and even demand altruistic behavior. See Nagel, Thomas, The Possibility of Altruism (Princeton U. Press 1979)CrossRefGoogle Scholar (supporting the moral legitimacy for demanding altruistic behavior). On altruism and individualism in modern contract law, see Kennedy, Duncan, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685, 1713 (1976)CrossRefGoogle Scholar.

98. On the richness of modern contractual law, see Hillman, Robert A., The Richness of Contract Law: An Analysis and Critique of Contemporary Theories of Contract Law (Peczenik, Aleksander & Schauer, Frederick eds., Springer 1997)CrossRefGoogle Scholar.

99. On libertarian theories of contract law in this vein, see Epstein, Richard A., Unconscionability: A Critical Reappraisal, 18 J.L. & Econ. 293 (1975)CrossRefGoogle Scholar.

100. Furthermore, some late twentieth-century contract scholars describe a return to the classical contractual values. See e.g. Murray, J.E. Jr., Contract Theories and the Rise of Neoformalism, 71 Fordham L. Rev. 869 (2002)Google Scholar; but cf. Hillman, Robert, The New Conservatism in Contract Law and the Process of Legal Change, 40 B.C. L. Rev. 879 (1999)Google Scholar.

101. On the penetration of this principle in American law, see the leading article by Summers, R.S., The General Duty of Good Faith: Its Recognition and Conceptualization, 67 Cornell L. Rev. 810 (1982)Google Scholar.

102. See the Restatement (Second) of Contracts § 176 (1981).

103. Unlike the conventional definitions of compulsion that focused on the flawed will of the compelled party, the Restatement (Second) of Contracts § 176 demands the illegitimacy of the threat that resulted in compulsion.

104. On the sharing principle in contract law, see Fried, Charles, Contract As Promise 70-73, 76–79 (Harv. U. Press 1981)Google Scholar.

105. See supra Sect. II.B.

106. On a comprehensive and extensive discussion of the legal, philosophical, and economic possibility of resolving “no duty to rescue” rule and the contractual doctrine that invalidates rescue contracts, see Lifshitz, Shahar, Distress Exploitation Contracts in the Shadow of No Duty to Rescue, 86 N.C. L. Rev. 305 (2008)Google Scholar.

107. See especially id., at Sect. II.B.

108. For a discussion of a similar argument in the context of modern American contract law, see id. at Sect. C.

109. For a fascinating economic analysis of the distinction between a credible threat and a noncredible threat in the context of contract law, see Bar-Gill, Oren & Ben-Shahar, Omri, The Law of Duress and the Economics of Credible Threat, 33 J. Leg. Stud. 391 (2004)CrossRefGoogle Scholar [hereinafter Bar-Gill & Ben-Shahar]; Bar-Gill, Oren & Ben-Shahar, Omri, Credible Coercion, 83 Tex. L. Rev. 717 (2005)Google Scholar. As I will argue in this part, Jewish law, despite its avoidance of economic terminology, arrives at the desired normative conclusions in accordance with an analysis of credibility.

110. See supra n. 72-73.

111. See e.g. Eisenberg, Melvin A., The Bargain Principle and Its Limits, 95 Harv. L. Rev. 741, 754–763 (1982)CrossRefGoogle Scholar.

112. See Moses Ben Nahman, supra n. 32, at 352-353, on Yevamot 106.

113. In an article that, to a certain degree, can be seen as a continuation of the present article, I proposed, inspired by Jewish law, a detailed doctrine governing oppressive-exploitative contracts that I believe American law should adopt. See Lifshitz, supra n. 106.