45 Spring-Summer 2017 believes this to be so, his refusal to extend aid at the regular price cannot be morally censured. In the absence of such moral censure, the contract cannot be voided. Focusing on the moral assessment of the exploiter ’s behavior and his duty to the distressed person can explain two additional exceptions to the jesting rule that developed in the post-Talmudic literature. First, the jesting rule is not applicable when service is provided in circumstances that increase the cost of the service to the boatman, or if he faces some dangers beyond the usual risk when the situation of distress is absent.67 When the distress of the other party changes the nature of the required service, refusal to provide the service at the market price can no longer be condemned. Without moral censure of the service provider, one cannot speak of exploitation and oppression. Second, the jesting rule does not apply when the supplier has previously invested in skills such as medical studies, which enable him to aid a distressed person better than an average person would be able to. In such cases, the contract price reflects a legitimate demand for compensation for the considerable time needed to acquire special medical knowledge.68 Consequently, the contract is valid. E. Conclusion I have shown how the procedural approach focuses on the exploited party, and on how its distress limits its ability to exercise free will (according to Ritba),69 or to finalize a serious commitment (gemirat da’at) (according to Rabbi Joseph Caro, as understood by Deutsch).70 I have also shown that the substantive approach focuses on contract content, which it seeks to evaluate by the objective criterion of contract fairness. I argued that Jewish law offers an additional, unique view, which bases the invalidation of oppressive-exploitative contracts on a moral examination of the exploiter ’s behavior. The exploiter is morally obligated to aid the distressed, and morally prohibited from gaining from that distress. Demanding above-market terms from a distressed person violates the moral prohibition, and is legally significant: it enables the distressed party to annul its contractual commitment. According to this view, invalidation of the contract is a means to compel the oppressor-exploiter to fulfill his moral duty to the oppressed-exploited. But at times there is no strong ex ante moral duty to aid the distressed person at the regular price, and therefore no moral justification for invalidating the contract. These are cases in which (a) alternative profits may be lost, or the serving party believes that there will be such a loss; (b) the distress changes the type of service or the risk that the service entails; and (c) a prior investment exists in the required skills or the availability of the service provider. of distress. See Mordecai Ben Hillel, supra note 46, on Sanhedrin, ¶ 704, who connects the law of the exploiter with the case of a grandfather (infra the grandfather) who told his son-in-law to study with the latter’s son (i.e., the grandfather’s grandson), and promised him payment for the teaching. Despite his commitment, the grandfather is exempt from payment. Most of the commentators, however, do not accept this elaboration and think that even if there is a religious duty to perform the commandment for free, this obligation in itself does not suffice for the legal invalidation of the commitment. See, e.g., David Ben Samuel, Turei Zahav, Yoreh Deah 336:3, who emphasizes that despite the religious prohibition, the commitment may not be canceled once it has been given. 57. See Bertinoro, supra note 31, on Bekhorot 4:6: “I saw a scandal on this matter among the rabbis of Ashkenaz [the FrancoGerman Jewish center]: the ordained rabbi, the head of the academy, was not ashamed to take ten zehuvim [a large sum of money] for the half an hour of the writing and giving of a single bill of divorce, and two zehuvim, or at the least, one zehuv, payable to each of the witnesses who signed the bill. As far as I am concerned, he is not a rabbi, but a thief and coercer, because he knows that bills of divorce may be given in his city only with his permission, and the one who must give a bill of divorce is forced to give him all he possesses.” Note the difference between Bertinoro’s condemnation of the rabbi’s actions and the procedural approaches that focus on the coercion, and the substantive ones that are concerned with the contract terms. 58. Although the fugitive case can be based on a commandment in the narrow sense, many authorities had difficulty in locating a parallel commandment in the case of the recalcitrant brother-in-law. In this spirit, see Moses Ben Nahman, supra note 28, on Yevamot 106a: “For, at any rate, there is no tangible obligation for him to perform halitzah.” 59. See Luria, supra note 32, at ¶ 25: “This issue of halitzah speaks of those who cannot be compelled to perform [halitzah], for in cases where compulsion is possible, deception is unnecessary.” 60. See Simeon Ben Zemah Duran, She’eilot u-Teshuvot HaTashbez 4:3:20 (1891): “And in both instances, he is not obligated to act for free, for as regards every commandment that is imposed on the entire world, he need not perform it for free. If, however, one asks for more than what is proper for [performing this act], this is an improper request, since, in the final analysis, this is his duty.” 61. See Solomon Ben AbrahamAdret, She’eilot U-Teshuvot HaRashba 1240, who maintains that, ex ante, we may counsel the exploited party to adopt the tactic of “jesting.”
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