44 No. 59 JUSTICE superior to both the procedural and substantive approaches in explaining the exceptions to the rule in the Talmud and in the post-Talmudic literature. The procedural and substantive approaches have difficulty explaining the Talmudic distinction between the regular boatman and the fisherman. Each case involves a distressed person. Consequently, how is the other party’s economic opportunity relevant according to the procedural perspective, which focuses on a distressed person’s difficulty in expressing his free and final will regarding the transaction? In principle, one could envision an expansive substantive approach that reviews contract fairness not only by comparing the contractual price with the market price, but also by taking into account the specific circumstances of the parties (such as the loss of alternative profits). Such an approach could explain the distinction between the cases of the fisherman and the regular boatman, because the fisherman will lose potential profit unless the deviation from the market price corresponds to the fisherman’s hypothetical losses.62 The fisherman, however, is not required to objectively prove the claim that he suffered a loss.63 Furthermore, some decisors have ruled that even without a tangible correlation between the loss of alternative profits and the contractual price, the existence of such a loss,64 or even the fisherman’s authentic feeling of lost opportunity, is sufficient to validate the contract.65 If the correlation between the loss of alternative profits and the contract price is irrelevant, and the decision is to rely on the fisherman’s subjective feeling instead of objective data, it is difficult to harmonize these cases with substantive approaches that focus on contract fairness.66 By contrast, our new moral understanding of the Jewish law explains the Talmudic distinction between the regular boatman and the fisherman, showing why that party’s profession is clearly relevant. The boatman who usually ferries passengers at the regular price should view the fugitive’s request to be ferried at the market price as a costless request. Consequently, the demand for an abovemarket price reflects his exploitation of the fugitive’s distress. In the case of the fisherman, however, the contract is enforceable because the steeper fee compensates for the loss of alternative income of the fisherman, and reflects a legitimate desire to avoid loss. The decisors’ refusal to demand a correlation between the loss of alternative profits and the contract price, and their willingness to rely on the fisherman’s subjective feeling instead of objective data, are consistent with a focus on the exploiting party and its moral obligations. If there is a difference between the market price and the fisherman’s loss of alternative profits, or if the fisherman 50. According to at least some commentators, the possibility of voiding service transactions because of their unfairness was limited to certain transactions in which no concrete acquisition act (which according to Jewish law symbolizes the finalization of the transaction) is implemented. See, e.g., Asher Ben Jehiel, supra note 45, at 46:3. 51. See, e.g., the opinion of Jonathan Ben David of Lunel, Novellae on the Talmud (Bava Kamma: S. Friedman ed., 1969) on Bava Kamma 116a (this view is cited also in Ashkenazi, supra note 23, on Bava Kamma 116a, s.v. “Mi,” in the name of Rabbi Jonathan). 52. See supra note 35. 53. Similarly to some modern approaches that combine procedural and substantive arguments, Jewish law also developed an approach stating that only the combination of one party’s distress and an asymmetry between the contractual price and the market price can lead to the voiding of the contract. Such an intermediate approach is taken by Jacob of Lissa, supra note 44, 264:19, who connects the jesting rule with the general ona’ah rule, but with the former reflecting the interaction between the terms of the contract and the situation of distress. 54. See, e.g., Mordecai Ben Hillel, supra note 46, on Bava Kamma ¶ 174: “The reason is that he [the other party] is in danger and he must rescue him, and take his wages; here, too, one is commanded to bring medicine to the patient.” See also Moses Ben Nahman, supra note 28, on Yevamot 106a, s.v. “U-de-Amrinan:” “According to one explanation, the reason for the teaching of the baraita is that he must rescue him, on account of [the obligation of] returning a lost article; and for this reason, he is entitled only to the customary price.” See also Menahem Meiri, Beit Ha-Behirah (Makhon ha-Talmud ha-Yisraeli ha-Shalem 1962) (1794), on Yevamot 106a. 55. In the case of the jars of honey (see supra note 20), the owner of the jars is commanded to offer assistance by force of the well-known Jewish law of “returning a lost article.” See Exod 23:4; and in the Talmud: Bava Metzia 32. See also Anne C. Besser & Kalman J. Kaplan, The Good Samaritan: Jewish and American Legal Perspectives, 10 J.L. & RELIGION 197-206 (1993). In the fugitive and medicines cases (see supra notes 10 & 21), the boatman and the laborer, respectively, are duty bound to rescue. According to these commentators, this duty expands the original law of the return of lost property to include human life. In the halitzah case, the brother-in-law is not worthy to be married to the widow, and he therefore is required to perform halitzah and not yibum. 56. At the same time, these views may allow for the termination of a contract in additional cases in which a person undertakes to do his religious duty, even in the absence
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