41 Spring-Summer 2017 The medicine and halitzah cases are resolved in the same way.24 Although the Talmud is formulated in a casuistic manner and not as a legal code,25 based on its reasoning, we can properly formulate as legal doctrine the jesting rule, which provides for contracts to be set aside if the following elements are met: (a) personal or economic distress; (b) semi-monopolistic rescuer; (c) above-market price; (d) exploitation. C. The Jesting Rule in the Post-Talmudic Era Interpreting these Talmudic discussions, post-Talmudic Jewish law applied the jesting rule and its exceptions to a broad range of situations,26 such as rescuers who demanded an exaggerated price for saving property that would be lost if it were not saved immediately;27 physicians who took considerable sums for treating patients;28 a shofar blower who feared that the promise of exorbitant payment for his blowing (on the High Holidays) would not be honored;29 matchmakers and mediators who demanded a steep fee from their needy clients;30 a monopolist rabbi who insisted upon an exorbitant payment for writing a bill of divorce;31 and husbands who demanded compensation for agreeing to divorce their wives.32 These discussions reveal heated controversies within Jewish law concerning the theoretical basis for invalidation of oppressive-exploitative contracts, as described in the next section. I also describe their practical influence on the regulation by Jewish law of distress exploitation contracts. III. THE PHILOSOPHY BEHIND THE JEWISH LAW STANCE A. Background: Flawed Free Will and the Unfairness Argument in Jewish Contract Law Modern contract law distinguishes between procedural arguments, which focus on the free will of the parties, and substantive arguments, which are concerned with the fairness of the contractual terms.33 Although there are other important distinctions between modern American and Jewish contract law, the basis for this modern tension can be found in Jewish contract law. One school of thought maintains that the Jewish law approach to contracts is procedural, and seeks to ensure that the transaction reflects the free will of the parties to undertake such a commitment. These approaches view gemirat ha-da’at (the clear expression of one’s free and final will) as the key concept of voluntary transactions in Jewish law. Consequently, claims that there are flaws in contract formation are accepted only if it can be proven that the process of drafting the contract does not reflect the free and final will of the parties.34 In contrast, the principle of ona’ah (price fraud), which enables a party to void the transaction if the price of the good or service is more than one-sixth above market price,35 is an outstanding example of a substantive 24. As we saw, supra note 15, the Talmudic discussion is limited to an unsuitable brother-in-law. The law dictates that an unsuitable brother-in-law may not perform yibum for the widow (i.e., marry her). Therefore, the brother-in-law could not argue that the demand for payment in exchange for halitzah results from the need to compensate him for his loss. 25. See Leib Moscovitz, TALMUDIC REASONING: FROM CASUISTICS TO CONCEPTUALIZATION (Paul Mohr Verlag 2002). 26. See, e.g., Maimonides, supra note 21, Laws of Robbery and Lost Property 12:7, who summarizes the law and the exception as follows: Similarly, if one escaping from prison comes to a ferry and says to the ferryman, “Take me across and I will give you a denar,” and he is taken across, the ferryman receives only the usual fee. If, however, there is a fisherman there to whom he says, “Leave your net and take me across,” he must give the fisherman whatever he stipulates. The same rule applies in all similar cases. 27. See, e.g., Maimonides, supra note 21, who applies the jesting rule in cases of economic distress, as well. 28. See Moses Ben Nahman (Nahmanides), Hiddushei ha-Ramban (Novellae on the Talmud) 31 (Yevamot: Or-Olam Com. 1962) (1740), on Yevamot 106. 29. See the case discussed by Jair Hayyim Bacharach, She’eilot u-Teshuvot Havvat Yair vol. 2, 186 (Shimon Kots ed., Eked 1997) (1699). 30. See infra notes 40-42. 31. See the case brought by Obadiah Bertinoro, Perush al haMishnah (Commentary on the Mishnah) (1548-49), Bekhorot 4:6. 32. See, e.g., the case discussed by Solomon Luria, She’eilot u-Teshuvot Maharshal ch. 24-25 (1969) (1599). 33. See supra note 3. See also the discussion concerning the oppression provision in Israeli law. 34. Deutch, supra note 4. 35. On the ona'ah rule, see Joseph Caro, Shulhan Arukh Hoshen Mishpat 227 (Tal-Man 1978) (1565). See also in the research literature Aaron Levine, Onaa and the Operation of the Modern Marketplace, 14 JEWISH L. ANNUAL 225 (1993); Itamar Warhaftig, Market Value, Prices and Overreaching, 4 KETER 17 (2004) (Hebrew); Binyamin Porat, Overreaching—Legal and Ethical Principles, 4 KETER 292 (2004) (Hebrew).
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