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Parshas Bo:
Egyptian Kings and Jewish Contracts
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EGYPTIAN KINGS
AND
JEWISH CONTRACTS
You can find Choshen Mishpat (Jewish monetary law) in the oddest of places. Take this Parsha, for example. In the midst of the plague of darkness, Pharaoh calls Moshe back to the palace and says, “Go! Worship Hashem. Only your sheep and cattle shall remain behind; also your children may go with you.” (Shemos 10:24) The Ohr Hachaim makes the keen observation that Pharaoh’s words seem to be out of order. Logically, Pharaoh should have grouped together the adults and children that were going out of Egypt, and not separate them by mentioning the animals which were remaining in Egypt. He should have said, “Go! Worship Hashem. Also your children may go with you; only your sheep and cattle shall remain behind.” Many commentators make the point that, throughout his dealings with Moshe, Pharaoh was always very careful of what he said and how he said it. Although a number of bad character traits can be attributed to Pharaoh, sloppy speech is not one of them.
The Ohr Hachaim offers an explanation of Pharaoh’s words based on a law in Choshen Mishpat. According to the Torah, one may make a sale, loan, gift, obligation, etc… conditional upon the occurrence of a specified event (the word in Hebrew for ‘condition’ is t’nai, and a conditional transaction is said to be a transaction al t’nai). For instance, a person is waiting to hear whether he was approved for a new car loan. If he gets the loan, he’ll want to sell his old car. According to the laws of Choshen Mishpat, he can sell his old car before he finds out about his loan by making the sale conditional upon approval of his loan application. If his application will be approved, then the sale of his old car will automatically take effect. However, if it will be rejected, then the sale of his old car will be nullified.
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The Talmud (Kiddushin 61a) states that the source in the Torah for this halacha is Moshe Rabbeinu’s reply to the petition of B’nei Gad and B’nei Reuven to be given the newly conquered land on the east side of the Jordan (Bamidbar 32:1-42). Moshe accedes to their request, but makes the deal contingent on their participation in the up-coming war against the inhabitants of Canaan. He makes a t’nai, stating: “If the children of Gad and the children of Reuven will cross the Jordan with you (the rest of the children of Israel) – everyone armed for battle before Hashem, and the Land is conquered before you – [then] you shall give them the land of Gilead as a heritage. But if they do not cross over, armed, with you, then they will take their heritage among you in the land of Canaan.” The Talmud understands B’nei Gad and B’nei Reuven’s agreement with Moshe for the land of Gilead to be an archetype for all valid conditional transactions, and a number of important halachos are learned from a careful study of Moshe Rabbeinu’s wording.
The Talmud points out that Moshe Rabbeinu carefully placed his ‘if statement’ before his ‘then statement.’ He did not say: “You shall give them the land of Gilead as a heritage if they first cross over with the rest of the nation and fight the Canaanim,” but rather, “If they first cross over… then you shall give them the land of Gilead….” From this observation, the Talmud states that a t’nai is only valid if the condition statement is placed before the transaction statement – the ‘if’ before the ‘then.’
The reasoning behind this halacha relates to the keen awareness that the Torah has for the subtleties of speech and what those subtleties indicate about a person’s state of mind. When a deal is negotiated, each party makes a number of requests, demands, and stipulations. Some of them are agreed to and some of them are rejected. The deal is eventually finalized and all that is agreed upon is put into writing. What happens when one side does not honor the contract with regard to one of the points? Is the entire contract null and void or do we say that the point was not that important an issue to the aggrieved party to be a ‘deal-breaker?’
Moshe Rabbeinu’s careful wording of his t’nai teaches us that only when the ‘if statement’ is first and foremost in the mind of the party making the t’nai – only when it is stated first – does the Torah see in that t’nai a deal-breaker. When the transaction statement is verbalized before the condition statement, the Torah sees that ‘slip of the tongue’ as a subtle admission of the speaker’s true feelings about the importance of the condition he has just made. In essence, the person has just said, “It’s important to me, but not that important.”
The Ohr Hachaim uses this halacha to explain that Pharaoh’s words were anything but sloppy. Pharaoh was bargaining with Moshe. He proposed, “Moshe, really I should only agree to let the men go out to worship Hashem (Go! Worship Hashem). This has been my position in the past. But you know what? I’ll be a good guy. If the sheep and cattle stay here (Only your sheep and cattle shall remain behind), then I’ll even let the children go, too (also your children may go with you). How’s that for a deal?” Pharaoh was placing a stipulation on his transaction with Moshe. In Pharaoh’s mind, the condition statement which kept the animals in Egypt was of paramount importance. It was a deal-breaker, and thus, was placed before the transaction statement which allowed the children to leave with the men. Pharaoh was no sloppier in his speech than any other high-stakes negotiator.
This law regarding t’naiim illustrates a very important fact. In Choshen Mishpat, how you say something can make a world of difference. Let’s be blunt. It can cost you a lot of money. Jewish courts of law (batei dinim) can and often do deem contracts unenforceable when they are not worded according to the laws of Choshen Mishpat. Non-compete agreements, wills, leases, employment contracts, partnership agreements all commonly have in them clauses which need to be worded carefully in order to be consistent with Jewish law. Therefore, a contract between two Jewish parties should be reviewed by someone proficient in Choshen Mishpat. Otherwise, there is a distinct possibility that part or all of it will be invalidated if contested in beis din. Although you might be surprised to find Choshen Mishpat being applied to the words of Pharaoh, you should not at all be surprised if you find beis din applying the laws of Choshen Mishpat to the words in your contract. |
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