42 No. 59 JUSTICE doctrine.36 Below I show that many discussions of the jesting rule focused on the procedural-substantive tension or, in Jewish law terms, on the distinction between claims of flawed gemirat ha-da’at and the principle of ona’ah. B. The Procedural Perspective: Distress Exploitation and the Demand to Finalize a Serious Commitment (gemirat hada’at) According to Sinai Deutch, the jesting rule in Jewish law is based on a flaw in finalization of the distressed party’s intent.37 According to this approach, which parallels the modern procedural unconscionability argument, a commitment for excessive consideration made in a state of distress cannot function as the party’s final intent,38 and therefore is not binding. Working within this approach, post-Talmudic legal decisors (poskim), like Rabbi Joseph Caro, held that the jesting rule may be overcome by an action that proves that the distressed party’s will is indeed final despite the distress, such as the implementation of a commitment,39 an oath, or a handshake.40 Another procedural approach of Jewish law, suggested by Rabbi Yom Tov ben Abraham Ishbili (Ritba), brings the invalidation of oppressive-exploitative contracts closer to a classic duress argument.41 According to this approach, the problem with a commitment made in a state of distress is not the party’s lack of decisive intent in the obligation it undertook. To the contrary, distressed people seriously intend to honor their undertaking in order to extricate themselves from their distressed state. But because the commitment was made under duress,42 the law does not recognize it as a free-will commitment. Furthermore, as long as the commitment was made under duress, a vow, handshake, or any other means that proves decisive intent, but not free will, cannot validate the contract.43 C. The Substantive Approach: Exploitation and the Review of Contract Fairness In the post-Talmudic period, the jesting rule has been applied by decisors to additional cases where there is a disparity between the proper fee and the stipulated fees for intermediaries,44 guarantors,45 exorcists, and matchmakers.46 This expansion is surprising, because it is not at all clear that the parties in these cases suffer from any tangible distress, and certainly not distress serious enough to impair their free will. Nor is it clear that these cases are indeed monopolistic or semi-monopolistic.47 If the jesting rule focuses on the impaired will of the distressed party, a distinction should have been drawn between these cases and Talmudic discussions in which one could argue that the distressed party’s will is impaired.48 Instead, these cases focus on substantive 36. On this interpretation of ona'ah and the rejection of an alternative interpretation that perceives this law as an example of the contract doctrine of mistake, see Levine, supra note 35. Similarly, the law of Rabbi Huna, holding that a sale under duress might be valid if the usual price for such a transaction was paid (“if they [threaten to] hang him and he sells, the sale is valid”—Bava Kamma 62a; Bava Batra 47b; 48a, b) may be understood as reflecting the superiority of the substantive approach to the procedural one. See the extensive discussion in Benny Porat, Coercion and the Principle of Contractual Justice: Jurisprudential Observation of "Talyuhu ve-Zabin,” 22 DINE ISRAEL 49 (2003) (Hebrew). 37. See Deutch, supra note 4. He uses the Hebrew term gemirat ha-da'at. 38. Deutch, supra note 4, finds support for this view in the wording of the above Talmudic passages, which explains the ability of the exploited party to claim: “I was merely jesting with you.” According to Deutch, this attests to the non-serious nature of the commitment made by the distressed person. 39. For this reason, Deutch supports his view with the position of Rabbi Joseph Caro, in Caro, supra note 35, Hoshen Mishpat 264:8, which limits the invalidation of oppressiveexploitative contracts to the instance in which the distressed person’s commitment has not been executed. 40. On this legal conclusion, see Aryeh Leib Heller, KETZOT HA-HOSHEN vol. 3, 264:4 (1982) (1788-96). 41. This seems to be the explanation by Yom Tov Ben Abraham Ishbili, HIDDUSHEI HA-RITBA vol. 1 (Novellae on the Talmud) (Yevamot: Mossad Harav Kook 1992) (1787), on Yevamot 106a: This case is different, for he agreed because of the compulsion. How so? In the case of the unworthy brotherin-law, she was [under duress, for fear of] being chained to him [i.e., being unable to remarry]. And similarly, in the case of the ferry, this was a case of duress, which led him to agree; and a stipulation under duress is counted as nothing, and only his [regular] wages are coming to him. 42. Ones in Hebrew. 43. See Ishbili, supra note 41 (Kiddushin: Mossad Harav Kook 1985) (1553), on Kiddushin 8a. See also Ashkenazi, supra note 23, on Bava Kamma 116a, who states, in the name of Rabbi Menahem Meiri, that the jesting rule applies also in finalized transactions. 44. On the fee of intermediaries, see, e.g., Isaac Adarbi, She’eilot u-Teshuvot Divrei Rivot 396 (n.p. 1989) (1582); Joseph Lev, She’eilot u-Teshuvot Mahari Ibn Lev 1:100 (photo. repr. 1960) (1587), who discuss the fee of intermediaries through the lens of the jesting rule. The discussion focuses on the gap
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