40 No. 59 JUSTICE higher than was customary, and therefore the commitment could have been cancelled. The laborer is nevertheless entitled to full payment, despite the oppressiveexploitative agreement, because he would likely have earned more in some other task, and we therefore apply the exception to the rule derived from the fugitive case. B. From Cases to Doctrine All the Talmudic discussions that we examined share several characteristic features: 1. Distress In each of these cases, one of the parties is in distress. The type of distress that explicitly appears in the Talmudic discussions is personal: a threat to the life of the fugitive, illness in the medicines discussion, and the inability to remarry in the halitzah case. Although the fundamental discussions did not directly examine19 instances of explicit economic distress,20 the context of the discussions indicates that the Talmud did not distinguish between personal and economic distress, which possibly led most commentators to draw an analogy between the cases delineated in the Talmud and instances of economic distress.21 2. Semi-monopolistic rescuers In all the cases discussed in the Talmud, at the moment of the contract, the only reasonable choice available to the distressed party is to enter into a contractual agreement, although the contracting party is demanding a price far higher than market price for the service. The monopolistic nature of the situation is most distinct in the halitzah case, where the brother-in-law is the only person, by law, who can enable the widow to remarry. Like the fugitive and medicine cases, at the time the contract is made, the distressed party has no other options. Or, we might say, in light of the pressure exerted on her, the widow is not psychologically free to examine other courses of action.22 Therefore, these discussions involve a distressed party that experiences its situation as requiring an agreement with a truly monopolistic party. 3. Unconventional terms in the contract Each of the cases describes a transaction in which the consideration is different from what the market price of such a service or transaction would be in the absence of distress. 4. Exploitation The three conditions we mentioned (a distressed party, a semi-monopolistic supplier, and a price different from the market price) exist in both the standard case of the fugitive ferried by the boatman and in the exceptional case in which the boatman is a fisherman. The Talmud shows that these three conditions do not suffice to create an exploitative contract that can be invalidated: rather, the Talmud requires a fourth condition: a requirement23 that the above-market price be the result of exploitation of the second party’s distress. If the semi-monopolistic supplier can justify his demand for a higher than normal price, i.e., show that it is not merely the result of his ability to exploit the other party’s distress, the contract is valid. 19. But see David Ben Solomon Ibn Abi Zimra, She’eilot u-Teshuvot Radbaz vol. 3, 6:2279 (n.p. 1972) (1749), who argues that the discussions in the Talmud also speak of economic distress; the fugitive, for example, had been “imprisoned for a monetary matter.” 20. The analogy between life-and-death situations and economic distress can be supported by the Talmudic discussion of the fugitive (supra note 10), with its analogy between the case of the fugitive and that of economic distress (honey dripping from jars, below). 21. See Moses ben Maimon (Maimonides)] Maimonides, Mishneh Torah, Laws of Robbery and Lost Property 12:6 (H. Klein trans., West Publishing Co. 1954) (1475), who rules: If one travels with a jar of honey and the other with empty bottles, and the jar of honey cracks and the owner of the bottles says to the other, “I will not catch your honey in my bottles unless you give me half of it—or a third of it—or so many denar,” and the owner of the honey agrees to this and says, “Very well,” the rule is that he is regarded as having spoken in jest and need not give him more than the usual fee, for he has caused the other no loss at all (infra the “honey jars” example). 22. The simple understanding of the fugitive case is that this is the only ferry at the river available at the time of his pursuit. In contrast, Rabbi David ben Solomon ibn Abi Zimra, (supra note 19) argued that the fugitive is in distress, even if he could avail himself of the services of another ferry, and even if he were “imprisoned for a monetary matter,” because he was in a hurry in his distress. According to Radbaz, this is not an objectively monopolistic situation, but from the subjective viewpoint of the fugitive, the sense of coercion is similar to that experienced by a party facing a monopoly. 23. In the fugitive case, the offer to pay an excessive price presumably comes from the fugitive, but it appears from the context that this proposal is born out of the refusal to act at the regular price. See, in this spirit, Bezalel ben AbrahamAshkenazi, Shitah Mekubetzet (n.p. 1989) (1762), on Bava Kamma 116a, which relates regarding the fugitive: “Provided that the boatman refused to ferry him for the regular price, until he agreed to pay a gold denar.”
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