47 Spring-Summer 2017 72. See, for example, Civil Appeal 5490/92, Pegas v. Pegas, Takdin 94(4) 516, and my critique of the ruling in Shahar Lifshitz, “The regulation of the marital contract in Israeli law: Initial roadmap,” Kiryat Hamishpat 4 271, 298 (2004) (Hebrew). a result of the fear that nullifying such agreements would eliminate the option of get-refused women to obtain a divorce by paying off the recalcitrant husband. According to this approach, as long as religious divorce law does not allow unilateral divorce, the option of purchasing the get in return for an exploitative agreement is the lesser of two evils. A deeper analysis, however, leads to the opposite conclusion: in many cases, the reason behind the refusal to divorce is the potential for blackmail. The knowledge that an oppressive agreement will not be validated would not cause recalcitrant husbands to continue in their refusal. On the contrary, it would nullify the financial incentive in their refusal, as recalcitrant husbands would know that even if they reached an exploitative agreement, it would not be enforced. At a mock trial held at the Faculty of Law of Bar-Ilan University, a panel of judges headed by Supreme Court Justice Neal Hendel, ruled that under certain circumstances, in which the divorce agreement clearly exploits one spouse, the existing law must be reconsidered and such divorce agreements annulled. In light of the above, I am hopeful that in the spirit of Jewish law, the judicial courts in Israel will change their policies and enable the annulment of divorce agreements not only in staged trials, but in trials that have a substantial outcome in the real world as well. V. CONCLUSION: JEWISH LAW AS AN INSPIRATION FOR MODERN LAW Addressing the Jewish law regulation of oppressiveexploitative contracts, I have reviewed the cases discussed in the Talmud and in the post-Talmudic literature, and have formulated a legal doctrine that invalidates oppressive-exploitative contracts. I analyzed the philosophy at the basis of this doctrine. The first two approaches, which are concerned with the flawed will of the contractual party and contract unfairness, parallel the procedural and substantive approaches in modern contract law. The third approach, which is unique to Jewish law, makes a connection between the ex ante moral duty to rescue and ex post contract invalidation. At a deeper level, the article has modeled a cultural encounter between the regulation of oppressiveexploitative agreements in Jewish law and the legal and economic approaches at the basis of modern contract law. This encounter illustrates the benefits that are likely to emerge from comparative work, both for the study of Jewish law and for the researchers and shapers of modern law. On one hand, the analogy with modern conceptions helped uncover a unique approach of Jewish law that has not been considered before; on the other, despite its seeming contradiction with modern economic values and logic, Jewish law, upon deeper inspection, was shown to balance between individual rights, solidarity with the other, and sensitivity to long-range this-worldly consequences. The desire to incorporate individualism, moral solidarity, and utilitarian considerations characterizes new developments in contemporary legal thought. In this sense, the Jewish law doctrine governing oppressive-exploitative contracts may serve as an important and intriguing source of inspiration for modern lawmakers. Finally, the article makes a unique contribution to the current interpretation of the oppression cause of action in Israeli law, especially of the possibility of fighting injustice in divorce settlements, which leads to exploitative agreements. n Professor Shahar Lifshitz is the dean of Faculty of Law, Bar-Ilan University. An earlier version of the analysis was published in Oppressive Contracts: A Jewish Law Perspective, 23 Journal of Law and Religion 425 (2008)
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