Business Halacha Daily

Bais Havaad
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Business Halacha Daily is a program with daily 3-5 minute "nuggets" on the topic of the week. They are practical questions that come up related to that topic, with a dayan there to answer and explain the reasoning.

  1. Jul 30

    If Someone Gives a Gift Only Because He Promised to Do So, Is That a Valid Matanah?

    Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Yosef Dovid Josilowsky Question: A man told his new son-in-law that he would give him a silver menorah for Chanukah. As Chanukah approached, he no longer wanted to give the gift, but he gave it anyway because he had already given his word. Can he later claim that the gift was invalid because he was giving it under duress? Answer: If he merely said that he would give the menorah, it would not be considered an oath that requires him to do so. At most, it would be what is called an “unso d’nafshei”, meaning that he pressured himself into giving it against his will so to speak. The Gemara says that “unso d’nafshei” is not sufficient grounds to be mevatel a matanah. The Gemara talks about a case of a man who wanted to marry a woman, and she said that she would only marry him if he gifted her a certain item. Under duress, he agreed to give her that gift. When his children protested, he clandestinely gave the same item to them as a present as well. The Gemara says that his giving it to his children demonstrates that he only gave it to the woman because he felt pressured to do so. Since this is clear from his actions, the matanah is batul. Based on this Gemara, the Rishonim rule that a gift can be invalidated if it is clear from the circumstances that it was only given under duress. Otherwise, the gift is valid even if he was feeling pressured to give it. If the father-in-law had made an oath to give the menorah, there might be grounds to annul the matanah. The halacha is that a get given after someone made a shavuah to give one is not valid. For this reason, we are matir neder before a get is given to ensure that it is not considered to have been given forcibly. However, the Nesivos writes that this only applies to a get, and not to a matanah. The Rambam says that a person needs “ratzon” when giving a get, which means he has to give the get solely because he no longer wants to be married to this woman, and not for any other reason. If he is giving it in order to fulfill his oath, it is invalid. A gift, however, does not need specific ratzon. As long as it is not given as the result of an oness, it is valid. Therefore, a matanah given to fulfill a oath is valid. Other Acharonim disagree and say that a matanah also needs ratzon, just like a get, and if it is given in fulfillment of an oath, it too is not valid.

  2. Jul 29

    Can a Modaah Overturn a Partnership Dissolution Agreement Signed Under Duress? 

    Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Yosef Dovid Josilowsky Question: Two partners want to dissolve their partnership but are unable to come to terms on an agreement. One of them tells the other that if he doesn’t agree to his terms, he will sue him in court. The other partner doesn’t want to waste time and money in court so he agrees to sign, but he is issues a Modaah before signing. Is that mesiras Modaah valid? Answer: This seems to be a case that would be considered a mechira, a forced sale agreement that, without a Modaah, would be valid. The question is if it could be considered a Modaah of a true oness, a real duress which would invalidate it. The early Achronim discuss whether a threat to turn to a secular court is considered a real duress, because we don’t know if the party will seriously take his adversary to court, and even if he does take that course of action, it is far from certain whether he would win or lose in court. On the other hand, we previously mentioned the opinion of the Maharsham, who says that the threat of dragging someone to court and forcing him to spend a lot of money on legal expenses is already a real threat, even if he may ultimately win.  Furthermore, the Maharchash says that if a Modaah is made in reaction to such a threat, the very fact that one party found it necessary to make the Modaah proves that he felt threatened and forced to agree with the settlement. This would demonstrate that the transaction was done under duress and negate it. Accordingly, the best thing to do would be to have the witnesses write exactly what happened and give this over to the bais din. They will then determine, based on the specifics of the case, whether it qualifies as an oness that could overturn the settlement.

  3. Jul 28

    How Can someone Protect Himself From a Modaah? 

    Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Yosef Dovid Josilowsky Question: I want to reach a settlement with someone but I am worried that he will make a Modaah that will invalidate the entire deal. How can I protect myself from someone using the halachos of Modaah to negate a legitimate transaction? Answer: The Mahari ben Lev writes that the way to write an agreement that would be protected from a previous Modaah is to incorporate four things in the document: The party should admit that he made no previous Modaahs.Bittul Modaah: It should be declared that all previous Modaahs are batul and what is said today will override anything from the past. The Rosh rules that bittul Modaah is effective, and even if the Modaah states that it is meant to be mevatel a bittul Modaah, the bittul Modaah can be mevatel that too.The Rambam argues with the Rosh and rules that a bittul Modaah does not work; however, even the Rambam agrees that one can make a declaration that: “Anything I previously said that could be undo this transaction is now batul.” Once one makes this statement, all previous Modaahs are canceled. Therefore, this declaration should also be included in the shtar.The Rashba says that a solution to protect oneself from Modaahs is to invalidate the witnesses on the Modaah by saying that the party admits that any witness on a modaah is [as far as they are concerned] an invalid witness. This solution of invalidating the witnesses should be used in the shtar as well.An additional two ways that are commonly used to work around the power of Modaah in a settlement are as follows: In the agreement, they include a clause that any further disputes must be brought back to the same place where the settlement was made. This would mean that it would be nearly impossible to overturn, as any future complaints must be brought to the same body that issued the settlement.The agreement states that the claimant agrees to a “kabalas daas yachid”, meaning that any halachic opinion that validates the settlement must be adhered to. As we mentioned in a previous segment, the Maharashdam is of the opinion that a settlement cannot be invalidated by a Modaah. According to his opinion, the settlement is certainly valid. If the claimant agreed to abide by any opinion that validates the settlement, he will have to accept the Maharshdam’s view.

  4. Jul 27

    Can One Make A Modaah to Annul a Settlement He Made Under Threat of Being Taken to Secular Court?

    Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Yosef Dovid Josilowsky Questions: Two individuals have a din Torah and the Dayanim rule in accordance with one of the parties. Afterward, the one who lost the din Torah tells the winner privately that if he doesn’t agree to a compromise settlement with him, he will go to a secular court and have the bais din overruled. Under duress, he agrees to the settlement, but before signing, he issues a Modaah that he does not really consent. Will this Modaah negate the settlement? Answer: Since the individual was given a clear ruling from bais din, there is no ambiguity regarding the amount he is entitled to. Therefore, any settlement he agrees to has the status of a matanah, a gift to the other party. Accordingly, a Modaah should definitely work to negate the settlement. In truth, the mere threat to go to court may not always be considered a real oness. Because neither side can be certain that they will win in court, we cannot automatically assume that the threat is serious enough to deem the settlement a forced one. Moreover, generally speaking, overruling the mutually agreed-upon arbitration of a bais din in a secular court is very unlikely.  Having said this, if the person did go to the effort of issuing a Modaah, this indicates that he did feel pressured by the threat of going to court and the Modaah probably would work to cancel the settlement. Additionally, nowadays the expense of being taken to court and having to hire lawyers is in itself a very real threat, even if the outcome is uncertain. The Maharsham writes that even in his times, it had become common for litigants to turn to the secular courts even if they were unsure of the outcome. They did so because they knew that the court system is expensive and time consuming, and they hoped to wear down their adversary until he finally gave in to their demands. Therefore, he says that a threat to go to court could be considered a viable threat and it is certainly something that a Modaah would work for, even in a case of mechirah.

  5. Jul 22

    If a Contractor Raises The Price in The Middle of Construction, Will a Modaah Work to Negate The New Terms?

    Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Yosef Dovid Josilowsky Question: Yankel is building an extension on his house and he hires a contractor to do the job. They agree that Yankel will pay cost price plus 15%. When the job is 75% completed, the contractor tells Yankel that his costs have gone up and he can only finish the work if they raise his rate to 20%. He says that he will not finish the extension unless they sign a new contract with the new terms. After the job is completed, Yankel comes to bais din with a Modaah that says that he was forced to sign the new contract and never really consented to it. Does he have to pay the contractor 15% or 20%? Answer: Bais din will assess whole situation to determine if the Modaah was warranted. It happens to be that, in this case, there is a possibility that no Modaah is needed at all. The halacha is that although a worker is usually allowed to back out of a job in the middle of the work, if it is a “davar ha’avid” (a matter that will cause the employer a large loss), the employer is allowed to trick the worker in order to convince him not to leave. He is permitted to do this by promising to pay him more, even though he has no intention of doing so. If it would be determined that this is a case of a davar ha’avid, Yankel would not be beholden to the new terms, even if he hadn’t been moser Modaah.   On the other hand, there are cases where a worker has a legitimate complaint and is permitted to change the terms of a payment agreement. If that is the case here, he is not asking Yankel for a matanah; rather, this case would be comparable to a case of a sale, where each party is receiving something from the other. As we have said, a forced sale is valid, which would mean that Yankel would be beholden to the new terms and bais din would have to sit down and determine whether a Modaah could work in this instance to prove that he was forced into it. Another factor to consider is that some Acharonim say that a forced sale is only valid if it is an actual sale and not merely a “hischayvus”, where one party obligates himself to give something to the other. As we said, the reason a forced sale is valid is because we assume that the seller really does consent to sell when faced with the threats of the buyer; however, this reason may not apply in the case of a hischayvus, where the seller is not really receiving anything and, therefore, may not really consent. The Chochmas Shlomo uses this idea to explain the Gemara that says that Klal Yisroel has a “modaah rabbah l’ohraysa”, meaning that we can say that we were forced to accept the Torah. Although a forced sale is valid, this is still a good claim because receiving the Torah was a hischayvus, not a sale.

  6. Jul 21

    How Can a Shtar Modaah Work if The Witnesses Don’t Know All of The Facts? 

    Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Yosef Dovid Josilowsky Question: In the last segment, we said that witnesses who sign a Modaah have to know all the details of the situation and must be aware of how the individual is being forced into the transaction, which is why it is not so easy to negate a sale retroactively with a Modaah. What can someone do if he really needs a Modaah but the facts are not so clear to the witnesses? Answer: In a typical case when people arrive to be moser Modaah, even if we cannot be fully aware of the circumstances, we often see some form of evidence that causes suspicion. For example, the individual may have a text message from the other party that says that if he doesn’t accept a settlement, he will be harmed. The reason Modaah was instituted is so that people who are forced into transactions against their will should have some recourse. The inherent problem with such a shtar is that, as a rule, a contract can only be written with the participation of both parties. A Modaah, however, is written by only one party, without the presence of the other. Tosafos explain that in this case, the chochomim enacted a special decree to save people from being forced into deals. The Avnei Choshen says that if the reason for a Modaah applies, but the witnesses don’t know all of the details of the story, a shtar can be written that says explicitly that they saw some form of evidence that indicates that the party may be under duress to make the transaction against his will and, therefore, if this can be clearly proven at a later time, the sale will be negated. The shtar has to be carefully formulated so that it explicitly says that all of the facts have yet to be verified and it, therefore, cannot be used against the other party unless the fact that the individual was forced into the deal can be proven at some point.

  7. Jul 20

    What is a Modaah and How Does it Work?

    Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Yosef Dovid Josilowsky Question: We have stated that a forced sale is valid but the seller has a recourse of being “moser Modaah”. What does that mean? Answer: Being “moser Modaah” literally means to give over a yedia (a piece of knowledge) to witnesses i.e. to let them know what is really happening. The way it is done is that before someone makes a sale, he informs the witnesses that although he will be going through the motions of the sale, in reality, he is being forced into it and does not really consent to it. This declaration defines the sale that will happen later as nonconsensual and invalid. Question: If a seller can proactively arrange for a sale to be invalid by being moser Modaah, does that mean that every sale could be negated in this way? Answer: Rabbeinu Yona states that witnesses cannot sign a Modaah unless they know firsthand what the circumstances are that are forcing him into the agreement. In most cases, it is very difficult for witnesses to be able to say definitively that they know that. As a rule, if the Modaah doesn’t say this, it won’t be able to negate a transaction.

  8. Jul 16

    Is a Forced Settlement of 50 cents on the Dollar Valid? 

    Questions? Comments? We love feedback! Email us at info@baishavaad.org  Rav Dovid Josilowsky Question: I did a lot of business with someone and that person now owes me $100k. When I came to collect, he told me that he is only offering fifty cents on the dollar. He said that if I don’t accept that, he won’t pay anything at all. Is he a gazlan? Answer: Typically, the halacha is that a peshara (compromise) is like a sale in that a forced compromise is valid, just like a forced sale. However, that is only true if both sides agree to compromise because the actual ownership is in doubt. In this case, everyone admits that one party owes the other the full amount, but one side is forced to accept a compromise because the other informed him that he won’t receive anything otherwise. This would be considered a gift, rather than a compromise, and a forced gift is not valid. However, the Maharashdam is of the opinion that even a settlement like this is considered a mechira, rather than a matanah, because the claimant is receiving a benefit from it. He says that if this were not the case, no settlement will ever be enforceable. Even in his case, where a man who was in debtor’s prison for owing money agreed to settle with his own debtor in order to get at least some money from him, he rules that the settlement is valid. As long as the threat of non-payment is serious, the settlement cannot be invalidated even by issuing a Modaah. Although most acharonim rule against the Maharshdam, the question remains if the debtor can say “kim li” in order to allow a settlement to stand. Another consideration would be if the creditor signed a shtar mechillah. Without a Modaah it might be difficult to overturn such a shtar. However, there a Modaah might help because he can use it to demonstrate that he only agreed to the settlement under duress.

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Business Halacha Daily is a program with daily 3-5 minute "nuggets" on the topic of the week. They are practical questions that come up related to that topic, with a dayan there to answer and explain the reasoning.

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  • Creator
    Bais Havaad
  • Years Active
    2020 - 2026
  • Episodes
    984
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