Abstracts

ILLEGALITY

E. Shochetman, "The Assistance of Sinners in Jewish Law" (Heb.), Hamayan 30 (5740), 31-35. - In this article, the author discusses, inter alia, the validity of a contractual obligation to pay wages for the performance of a sinful deed. In principle, such an obligation is valid: the court, however, will use its discretion not to enforce if it feels that such a step is unjustified in the circumstances of the case. An employer who hires a worker to commit a sinful act is nevertheless required to pay his wages, although the court may penalise a labourer and prevent him receiving them. (Y.S.K.)

E. Shochetman, Ma'aseh Haba Ba'averah, Jerusalem, Mosad Harav Kook, 1981, Pp.351. - Dr. Shochetman's book is a detailed and comprehensive study of the Talmudic and Rabbinic sources dealing with the validity of an act tainted by the commission of a transgression against the law. The approach taken is defined as a dogmatic one, i.e. free from all reference to historical development or literary context. Reference to manuscripts, however, would seem to be acceptable even at the cost of contradicting a large number of apparently "dogmatic" views within the halakhah. In fact, one of the major theses in the book is that by rejecting the printed version of a particular psak and accepting the manuscript form, it is possible to discover the correct legal principle involved in the case in question.

The first chapter deals with the one Talmudic sugya in which the issue of illegality is treated in principle, i.e. the dispute between Abaye and Raba in Temurah 4b. On the basis of an extensive analysis of the Commentaries, Dr. Shochetam concludes that the dispute is confined to the effect of transgressions against Biblical injunctions essential to the act in question, and which cannot be rectified by annulling it. Consequently, although the halakhah is decided in accordance with the view of Raba, i.e. that "any act which the Divine law forbids has no legal effect at all", the scope of this ruling is extremely limited. In this light, it is possible to understand the many cases throughout the Talmud in which Raba's ruling would appear to be ignored. All such cases involve either the transgression of a Rabbinic injunction, or non-essential illegality, or a transgression which cannot be rectified by annulling the act. Since the majority of cases fall within this category, it is clear that in general, any legal act done, contrary to the halakhah, will nevertheless be valid. In the second chapter, the question of essential illegality is discussed, and the distinction between Biblical and Rabbinic injunctions is explained in terms of the conceptual difference between the two categories. It is also pointed out that where a Rabbinic enactment specifically provides that any act done contrary to it will be legally invalid, then such an act will indeed be null and void, irrespective of the above-mentioned distinction between Biblical and Rabbinic injunction.

The third chapter deals with non-essential illegality, e.g. the drawing up of a contract of sale on the Sabbath, or selling contrary to a binding oath, and in it, Dr. Shochetman provides numerous illustrations of his thesis that in each act falling within the terms of the dispute between Abaye and Raba, the rule is that illegal acts are both valid and enforceable. The one serious exception to this rule would appear to be a decision of R. Isaac b. Perez cited in the Hagahot HaMordekhai to Shebuot (3:784). According to Dr. Shochetman, however, the printed text of the Hagahot HaMordekhai is erroneous, and an examination of the manuscript (Oxford, Bodleian 6721 Cambridge, Or.71.1) reveals that R. Isaac b. Perez is not in fact challenging the general rule regarding illegal contracts, and his decision is based on entirely different grounds. All reservations on the part of later poskim as to the correctness of the general rule based on the decision ought, therefore, to be disregarded.

In the fourth chapter, the question of fulfilling mitsvot involving the commission of transgressions is considered, and a distinction drawn between essential and non-essential illegality.

The final chapter deals with the issue of illegal contracts, and after a brief reference to the problem of whether or not there is a law of contract in the accepted sense in Jewish law, Dr. Shochetman employs the fundamental distinction between monetary and religious obligations in Jewish law in order to conclude that all contracts, whether real or merely obligatory, will be valid in spite of the commission of an illegal act. The court, however, has a wide discretion not to enforce such a contract, and will not hesitate to use it in the interests of justice and morality.

In his conclusion, Dr. Shochetman mentions the observation made by M. Silberg (Talmudic Law and the Modern State (N.Y., Burning Bush Press, 1973), 75) with respect to the morality of Jewish law in this area. According to Silberg, the absence of any causal connection in Jewish law between the commission of an offence and the voiding of a civil contract results, on occasion, in a morally superior result to that obtained in the Common Law, according to which no court will soil its hands by dealing with any contract tainted by illegality. Whilst the moral indignation of the Common Law penalizes the offending claimant, it also awards a prize to the offending defendant - at least in a case where both parties are in pari delicto - by leaving the sum of goods already transferred, in his hands. In Jewish law, this situation is avoided by leaving the contractual obligation intact, and separating the agreement between the parties from the transgression involved in its performance. This is not the whole picture, however, and, as Dr. Shochetman points out, the discretion of the court to refuse to enforce a contractual obligation for reasons of justice and morality is also an important factor in the morality of Jewish law in this area. The separation of the contractual from the religious elements of an agreement must be complemented by the discretion of the court to refuse enforcement.

In his concluding remarks, Dr. Shochetman also mentions ss.30-31 of the Contracts (General Part) Law, 1973, which grants the court discretion to order the parties to a void contract to fulfil their obligations "if it deems it just to do so." Dr. Shochetman expresses satisfaction at this partial reception of Jewish law by the Israeli legislator (see Elon J.'s remarks in Howard v. Miarah C.A. 311/78, 35(2) P.D. 505), but regrets that it was not complete, i.e. that a contract, "the making, contents or object of which is or are illegal, immoral or contrary to public policy is (still) void."

It is clear, however, that the "other side of the coin" in Jewish law, i.e. the court's discretion to act freely in order to satisfy the claims of justice and morality, is not so readily available to the Israeli bench (see Kitan v. Weiss C.A. 350/77, 33(2) P.D. 785). In this respect, therefore, attention must be paid to the divergent institutional frameworks of Jewish and Israeli law respectively, and great care taken before the solutions of one system are recommended to the other.

The book concludes with five appendices on points of special interest raised in the body of the text, including the question of marriage and divorce against the herem of R. Gershom, and Maimonides' position on the dispute between Abaye and Raba. (D.B.S.)

 

 

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