43 Spring-Summer 2017 contract fairness,49 and the party’s distress and its influence on the finality of its intent plays a secondary role, if any.50 The transition from procedurally flawed free will arguments to fairness review is clearly reflected in the attitudes of commentators who explicitly identify51 the Talmudic jesting rule with the principle of price fraud (ona’ah),52 which invalidates a transaction when an excessive price is charged.53 D. Changing the Focus to the Moral Duties of the Exploiter 1. Exploitation Contracts and the Moral Duty to Aid a Distressed Person Several commentators54 have characterized the Talmudic discussions accepting the jesting rule as cases in which the non-distressed party is committed to aid the distressed person even without an agreement.55 This analysis opens the way for a fresh understanding of the jesting rule and for the regulation of oppressive-exploitative contracts in general. Unlike the procedural approach, with its focus on the free and final will of the distressed party, and the substantive approach, which is concerned with the terms of the contract, this approach focuses on the non-distressed party (the “exploiter”) and his obligation to the distressed party. The argument against the exploiter is that, because the aid to the distressed party is a routine act that he is commanded to perform, he should not demand excessive payment for his actions. This criticism of the exploiter ’s behavior enables us to accept the distressed party’s claim for contract annulment. Basing the jesting rule on the duty to aid a distressed person presumably limits56 this rule to instances of a clearly enforceable legal duty or, at least, to a clear religious commandment to aid the distressed person.57 Close inspection of the post-Talmudic discussion reveals, however, that this approach was applied even where it would have been more suitable to classify the duty to aid a distressed person as a moral duty,58 rather than an enforceable legal duty59 or a religious commandment60 (in the narrow Jewish law sense of the term). This enables us to view the regulation of oppressive-exploitative contracts in Jewish law as an indirect means of legally enforcing moral obligations, even those that could not be directly imposed. This new understanding enables us to comprehend the seemingly puzzling fact that in certain cases (such as that of halitzah), the court was engaged in creating an agreement that it would later invalidate on the grounds of “jesting.”61 According to our interpretation, the court thus circuitously enforced the moral obligation that could not be directly imposed at the outset. 2. Moral Exemptions to the Jesting Rule The moralistic approach of the jesting rule is clearly between the contractual price and what the judge assesses as just compensation for the intermediary’s efforts. Cf. Jacob of Lissa, Netivot Ha-Mishpat, Novellae, 264:19 (1980) (1809), who focuses on the disparity between the contractual fee and the customary price. 45. See Asher Ben Jehiel, She’eilot u-Teshuvot Ha-Rosh 64:3 (photo repr. 1954 of 1885 ed.) (1517), who applies the jesting rule to the fee of guarantors. 46. For a discussion of the fees of matchmakers and exorcists in the context of the jesting rule, see R. Moses Isserles’s commentary on Caro, Shulhan Arukh, Hoshen Mishpat 264. Isserles distinguishes between consent to the matchmaker’s fee, which has no legal standing unless it corresponds to the proper price, and consent to the exorcist’s fee, which is valid in any event. See also Mordecai Ben Hillel, Mordekhai (1509) on Bava Kamma, 10:172; Elijah Ben Hayyim, Teshuvot Ha-Ranah 3. 47. To reconcile the approach that bases the jesting rule in Jewish law on a flawed will with the post-Talmudic cases discussed in this part, some recent commentators explain that these cases reflect flawed gemirat ha-da'at as well. For possible support of this view, see Ephraim Navon, Mananeh Efraim, Laws of Hiring 15, p. 67-68 (Moshe Eizenbach Publisher), who maintains that elements of distress and even duress exist, at least in the instances of the matchmaker and the exorcist. As I noted, neither the cases nor rabbinical discussions of them focused on this aspect, although they may contain a certain element of lack of choice, which joins together with the central issue of contract unfairness. 48. Some of those who based the jesting rule on the flawed will of the exploited party emphasized the difference between cases that involve distress and those in which there is a gap between the contractual price and the market/fair price. See Solomon Cohen, She’eilot u-Teshuvot Maharshakh 2:80 (n.p. 1990) (1586). Cohen discusses the case of a community that hired a rabbi at a high wage and wished to cancel the contract with him; see also id. at 1:79, the case of an intermediary. In both cases, Cohen emphasizes that those who base the jesting rule on duress would fully validate agreements with no element of coercion. Cohen, however, also mentions opposing views, which focus on the contractual terms and therefore apply this doctrine in instances in which the party’s will is not flawed, but the fee is nevertheless not fair. 49. On the claim that the jesting rule is part of the general rule of fairness of contract, see Warhaftig, supra note 35. Warhaftig suggested different ways of testing contract fairness, such as: (a) a wage that seems proper to the judge, (b) the objective customary wage, and (c) the customary wage, with the judge also taking into account the subjective conditions of the case.
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