37 Spring-Summer 2017 ntroduction In one of the moving expressions of the concept of "closure" recited at the end of the Yom Kippur service, the worshiper asks that "we cease our oppression." In other words, the worshiper asks God to help him personally, as well as the people of Israel as a group, to entirely stop the practice of oppressing or exploiting others. In the Jewish Bible, the term "oppression" (oshek) usually refers to situations of unilateral taking of property. But in the Israeli legal system, the term is also aimed to describe situations in which a contract, ostensibly based on consent, ultimately reflects oppression and exploitation.1 In this article, I discuss an Israeli legal provision concerning exploitative agreements, and suggest a possible contribution of Jewish law to the interpretation of this provision. I pay special attention to cases in which spouses, mainly men, agree to cooperate with the religious divorce process in exchange for the consent of the other spouse to an exploitative divorce agreement. I. INVALIDATING OPPRESSION BY EXPLOITATIVE CONTRACTS IN ISRAELI LAW A. The Oppression Provision in Israeli Law Article 18 of the Israeli Contracts Law states that a person who enters a contract as a result of distress exploitation, and if the contractual terms are unreasonably different from the customary ones, the person is entitled to cancel the contract. This provision is called “oppression.” The oppression cause of action consists of three components.2 One component deals with the situation of the oppressed, and provides four alternatives: (a) the distress of the party; (b) his mental feebleness; (c) his physical feebleness; and (d) his lack of experience. A second component concerns the behavior of the oppressor, or the exploitation. A third component concerns the terms of the contract, which are unreasonably unfair. The oppression cause of action appears in Chapter 2 of the Contracts Law, and concerns the possibility of cancelling a contract because of a flaw in its formulation. Against the background of the other causes of action in Chapter 2, the oppression cause of action stands out as unique: First, it is customary to consider Chapter 2 of the Contracts Law as focusing on flaws in the will. Based on a description of the oppressed (the first component), it is not at all clear that the will of that party is flawed. Certainly, it is not a case of a flaw in will of an intensity similar to that of other causes of action listed in Chapter 2. Second, it is not clear what the requirement for oppression is: does it have to do with knowledge of the situation of the oppressed? Is potential knowledge sufficient, as stated in Article 14(a) of the Contracts Law (he should have known), or is it necessary for the other party to be the cause of the situation of the oppressed, as manifested in the causes of action of deception and coercion? Ostensibly, the use of the term "oppression" “So that We May Cease the Oppression Wrought by Our Hands”: About Exploitative Contracts and Basic Values in Jewish Law I Shahar Lifshitz Unless an official translation is mentioned, all the translations in this article are the author’s. 1. The Hebrew term oshek may be translated both as oppressive and exploitative. It is quite clear that in the Bible, the reference is to the broader term, "oppression," which embraces more than mere exploitation (a term that has primarily financial implications). It is also quite clear that the Israeli legislator, in its legal provision, aimed at the broader meaning of oppression. In this article, however, I occasionally use the term "exploitation" when referring to strictly contractual matters or to legal provisions outside of Israel. 2. See Civil Appeal 403/80, Sassi v. Kikaon, P.D. 36(a) 762, 766 (Hebrew) (hereinafter, Sassi).
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