Abstracts

OBLIGATIONS

Berechyahu Lifschitz, "Mattanah Le-hud - Acquisition and Obligation in Contrast", Diné Israel 12 (1985), 125-155.

B. Lifshitz, Asmakhta - Hiyyuv vekinyan bamishpat ha'ivri (Jerusalem, 1988). - Edit The majority of commentators from Maimonides onwards regard the asmakhta as a problematic relationship on the grounds of lack of mental consensus on the part of the parties to the transaction. Not all the Talmudic sources support this explanation, however, and some are clearly opposed to it. The book describes the various ways in which the commentators attempt to resolve these difficult sources and their inability to explain them away in a satisfactory fashion. The author advances the thesis that the significance of the term "asmakhta" is promise, and the problem, according to pre-Maimonidean sources, is that a mere promise does not possess any binding force in Jewish law. A promise is directed to the future and is therefore without normative significance in the halakhah. This approach emerges quite clearly from Gaonic writings, but was relegated into oblivion in the legal doctrine of the post-Maimonidean Rishonim. According to the Gaonim, therefore, a certain amount of tension exists between the halakhic requirement that a legal act should be immediately binding, and the realities of life which require the suspension of the legal consequences of a particular act to a later date. The laws of conditions, suretyship and exchange reflect the measures adopted by the halakhah to relieve this tension and to bridge the gap between the present and the future. The author deals with these areas of the law from the perspective of this tension, and employs philological and analytical research tools in order to arrive at novel definitions of many legal institutions and the relations between them in this area of Jewish law. All the sources relied upon by the author are cited in the text, and each step in his analysis is explicated with reference to the appropriate source. (D.B.S.)

Abraham Weingort, "Volonté et acte formel dans la structure juridique de l'obligation contractuelle en droit talmudique", Revue historique de droit français et étranger 64/2 (1986), 191-203. - Talmudic law occupies a middle position between consensualism, which dominates the concept of contractual obligation in Roman law, and the "real" character of the contract, as found in both Greek law and other legal systems of antiquity. Certainly, it attaches considerable importance to the formal act (kinyan) as a constitutive element in the obligation. But such an act is not essential when the internal resolve of the contracting parties (gemirat da'at) can independently be made known in a sufficiently clear manner. In the last analysis, the formal act is only one form of expression of the will of the parties - which is itself the primary foundation of contractual obligation. (A.W., trld B.S.J.)

 

 

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