46 No. 59 JUSTICE IV. POSSIBLE INFLUENCE OF JEWISH LAW ON ISRAELI LAW IN THE MATTER OF OPPRESSION I believe that the moral approach of Jewish law to the subject can enrich the existing interpretation of the oppression provision in Israeli law by injecting real content in the expression of exploitation and in the moral significance of the cause of action.71 First, similarly to Jewish law, in my opinion, the courts should examine not only the terms of the contract and the flaw in the parties’ will, but also the question of whether there was a moral obligation in the specific case to make a contract, based on customary terms, with someone in distress. Second, from the moral point of view, an objective examination of the price should not suffice to justify the behavior of the oppressor who demanded a wage beyond what is customary, but rather, it should be examined whether it was justified under the given circumstances. Third, the moral point of view makes relevant the questions concerning the intent of the oppressor, his original responsibility for creating the state of distress, and whether he acted in good faith. Finally, contrary to the customary situation, a distinction must be made between types of exploitation. The case of the party who chose not to see the distress of the oppressed is not the same as that of the party that is responsible for the distress in one way or another. The distinction between the types is manifested in the principle of the pendulum: the more exploitative one party is, the smaller the degree of distress and the gap between customary and present terms that are required to enable the cancellation of the contract. If Israeli law were to adopt the approach suggested in this article, it would have a significant implication for painful cases of get blackmail. I mentioned above the case in which the Talmud refused to enforce the commitment of a woman who agreed to pay her brother-in-law to perform halitza, in accordance with the doctrine requiring nullification of contracts that are a product of distress exploitation. Similarly to the case of the dishonest halitza agreement, there are many husbands in Israel who abandon their homes but refuse to divorce their wives. As a result, there are documented cases of extortive agreements, in which the woman waives her property rights to receive a get. Unfortunately for these women, neither civil nor rabbinical courts apply the doctrine of distress exploitation in these cases, and validate agreements in which cruel husbands take advantage of their wives’ distress and exploit them. At least in a portion of these rulings, the courts adopt the commercialcontractual rhetoric, and do not sufficiently apply moral censure to the exploitative behavior of get refusal.72 It may be that this position, adopted by the courts, is 62. According to certain interpretations of ona’ah, this law may also be influenced by the seller’s special expenses, which led him to sell above the market price. See Levine, supra note 35, at 248. 63. The Talmud formulates the fisherman’s claim subjectively: he could have said to him, “you caused me to lose... a zuz.” 64. For the validation of the contract, even if asymmetry exists between the profit that is denied the fisherman and the contractual price, see Heller, supra note 40, at 264:2: “But the statements by Rosh [Rabbeinu Asher ben Jehiel] and Ma'adanei Melekh explain in that case that, even if this entails a slight loss, he must be given all that was agreed.” 65. See Jacob of Lissa, supra note 44, at 264:17: “Whatever he stipulated, even if it appears that he does not profit so greatly; since he could possibly catch in his net the amount of fish equivalent [in value] to the stipulated amount, he [the second party] must pay him the full [stipulated sum].” 66. Note that, similarly to the conclusion drawn from the substantive approaches, Rabbi Moses Isserles permits the fisherman to receive only what he actually lost; if the contractual price is higher than the sum of the proven loss, he is not entitled to the former. See Ashkenazi, supra note 23, at 116a: “Rema [Rabbi Moses Isserles], of blessed memory, interpreted this in detail, and this is his wording: ...When he suffers a loss, he is not allowed to take more than what he actually lost.” 67. See Bacharach, supra note 29, at 186, who considers the shofar blower who was promised a large sum of money for the danger entailed in traveling. Bacharach explains that the dangers of traveling justify a higher than customary fee, and therefore the jesting rule is not applicable. 68. See Moses Ben Nahman, supra note 28, on Yevamot 106a, who distinguishes between the act of charging an exorbitant price for medicines, which contains all the elements of exploitation and consequent invalidation of the commitment, and the case of a physician who demands a high fee, which is morally justified. In Nahmanides’s words “But a physician is entitled to his full fee, because his wisdom was sold to him, and it is worth much money.” See also Caro, supra note 35, Yoreh De'ah 336:3; but see David Ben Solomon, Ibn Abi Zimra, supra note 19, at 3:556, who maintains that if he is the only physician there, even according to Nahmanides, we may invalidate this excessive fee. 69. See supra note 41. 70. See supra note 4. 71. For the argument about the possible influence of Jewish law on the unconscionability provision in American law, see Shahar Lifshitz, Distress Exploitation Contracts in the Shadow of No Duty to Rescue, 86 NORTH CAROLINA L. REV. 315, 346-361 (2008).
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