39 Spring-Summer 2017 “exploitation” and “oppression” relegated to a declarative status only.9 II. INVALIDATING OPPRESSION BY EXPLOITATIVE CONTRACTS IN JEWISH LAW Similar to Israeli law, Jewish law also addresses the issue of oppressive contracts. In this section I review the main position of Jewish law in this matter. A. The Fugitive Case and the Jesting Rule in the Babylonian Talmud The seminal case in the Babylonian Talmud concerning exploitative contracts addresses the contractual relationship between rescuers and fugitives, or the fugitive case. This case appears twice in the same baraita cited by the Babylonian Talmud, in the Bava Kamma tractate.10 The first part of the baraita states: “If a person running away from prison came to a ferry and said to the boatman, ‘Take a denar [a coin] to ferry me across,’ he would still have to pay him not more than the value of his services.”11 The Talmudic conclusion is that the fugitive’s commitment to pay a denar, which is an excessive fee for this service, is not binding on him. The Talmud calls this law, which exempts the distressed party from honoring his commitment, the “jesting rule.” Following the presentation of the jesting rule, the Talmud contrasts it with the second part of the baraita, which seemingly examines the same case, with a different conclusion: “But if he said to him, ‘Take this denar as your fee for ferrying me across,’ he would have to pay him the sum stipulated in full.”12 That is, in the second case, the contract would be enforced as stated. To resolve the two parts of the baraita, the Talmudic sage Rami bar Hama explains: “[In the second part, the rescuer was] a fisherman catching fish from the sea, in which case he can surely say to him [to the fugitive]: ‘You caused me to lose fish amounting in value to a zuz’.”13 The Talmud distinguishes between a regular boatman earning his living by providing ferry services, and a fisherman who occasionally earns more, using his time to fish. The latter can justifiably demand a higher than usual fee for providing a ferry service. The Talmudic interpretation of the baraita could be described as a rule and an exception: the basic rule cancels a contract in which the distressed person agrees to pay in excess of the regular price. But the exception provides that if the boatman can justify his demand for a higher than usual fee (as could the fisherman, who would have earned more money from fishing during the time that he transported the fugitive), the stipulated price is valid.14 The jesting rule is applied in an entirely different context in a sugyah in the tractate of Yevamot15 about a widow whose husband died childless (“the halitzah discussion”). Jewish law requires either that the deceased husband’s brother (the yabam) marry the widow (the act of levirate marriage or yibum), or that they perform the halitzah, a ceremony that voids the matrimonial bond between the brother-in-law and the widow. After they perform the halitzah, the widow is free to marry as she pleases, but without either yibum or halitzah, she may not remarry. In this case, the Talmud states that the yabam was not a proper match for the widow because of his unsuitability, and could not demand to marry the widow. We may assume that the court would not permit him to do so even if the widow had agreed. In such a case, the only legal option remaining is halitzah; but in this case, the brotherin-law refused to perform this ceremony; and he cannot be compelled by law to do so. Following the court’s counsel, the widow promised to give the brother-in-law a certain sum of money for conducting the ceremony, but later she refused to honor her commitment. The court accepted her decision as legally valid, based on the preceding case of the fugitive and the jesting rule. The Babylonian Talmud contains an additional source (the “medicines” discussion),16 whose content and linguistic style17 have led some commentators to connect it to the fugitive case and to the jesting rule. In this discussion, a laborer is hired to bring medicines to a patient. The Talmud rules that the laborer is entitled to full payment, regardless of whether the patient recovered or died. Tosafot18 explain that the agreed payment was 9. See, for example, Sassi, supra note 2, id. See also Civil Appeal 81/10 Cohen et co. Contractors v. Geda, P.D. 37(4) 635, 641; Shalev, supra note 8, 247; Deutsch, supra note 4, 41. 10. 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 noted, the references and commentaries to Talmudic tractates relate to the Babylonian Talmud. 11. Id. 12. Id. 13. Id. 14. 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. 62-65. 15. Yevamot 106a. 16. Bava Kamma 116a-b. 17. Like the fugitive case, in this discussion, the Talmud uses the wording “his wages in full.” 18. Tosafot, Bava Kamma 116b, s.v. “Lehavi Keruv ve-Durmaskinan la-Holeh.”
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