Prenups VII – Asmachta and Gemiras Daas: The Mind is what Matters

I haven’t written for quite a while (very preoccupied with off-line matters) and, here at the blog, I have a lot of unfinished business. I still haven’t gotten around to Part 2 of my previous post about מכה רעהו בסתר and, as for previous commitments, I haven’t completed the series on Techeiles nor the one on Prenups. 

As far as the mainstream Chareidi media is concerned, two topics have very recently come to the fore. One is the subject of Batei Din and Toanim – are they good for the Jews or bad for the Jews? – as was discussed in a two-part Headlines podcast covering a total of over four hours. This is an intricate and contentious topic that I have been holding in reserve for the right time. Perhaps the time has come.

The other one is…drum roll… “Halachic” Prenups! A recent issue of Mishpacha magazine took it as their feature article. Mishpacha claims that there is growing interest to implement what they call “Halachic” prenups within the Chareidi community. I suppose it’s time to get back to that one.

Interestingly, both of these topics seemed to converge around a young rising star in the world of Chareidi social politics and the new Beis Din that he founded. The young star is Rabbi Avraham Kahan in his role as the founder and spokesman for the New City Vaad HaDin V’Horaah under the guidance of HRH”G Rav Meir Stern, Shlita.

Rabbi Kahan was interviewed for both features. In the Headlines podcast, he told us about some of the revolutionary policies of the New City Beis Din, primarily that of no Toanim and an “oversight” Beis Din. I hope to discuss these policies in future posts. In the Mishpacha feature, he tells us about the efforts of the New City Beis Din to implement some form of Halachic Prenup that is more suited to the Chareidi community.

This is my cue to get back to the Prenups series, because one of the things I wanted to accomplish in my long overdue [possibly] grand finale Prenups post was to move beyond the BDA Prenup and do some comparison shopping. Like, what other Prenup options are out there and how do they match up? From the Mishpacha magazine article, it looks like there is a new contender on the market. More grist for the mill.

More than that, it looks like a whole new organization has been launched to promote Chareidi style prenups. The organization calls itself Yashar Coalition. Their information at this time is quite skimpy. They proudly display short endorsements from three prominent North American poskim and a list of “highlights” of their prenup but not a copy of the prenup itself.

One of the primary halachic battles that all of these prenups need to conquer is the problem of asmachta lo kanya. To date, I haven’t focused on this matter because I generally choose to write about Halachic issues that are overlooked by the mainstream analysts. So I have written about the problems with the waiver and kim li. I did talk about asmachta briefly in one of the more recent posts with regard to the endorsements of Gedolim dating back to 1992. But it needs to be better understood if we want to understand why one Prenup on the “market” is structured differently than the others.

In this post, I do not plan to discuss any proposed Halachic Prenups. That will have to wait. I only want to present an overview on the general Halachic concept of asmachta lo kanya. What is it?

Here goes.

The word asmachta in this context means “good faith” or “confidence” which is another way of saying a “guarantee”. It refers to a common sales pitch where the salesman says, “If you are not satisfied or if you do not get 90 days trouble free usage, you get double the money back.” Halachically, he may really be liable for the principle sale price, but he is certainly not liable for double the price. He only offered double to gain your confidence. Since we assume that he didn’t really mean it, we do not hold him to the extra amount even if he backed up his guarantee with a kinyan (act of transfer)!

Still, this is only one type of case that can fall under the rubric of “asmachta”. The term essentially applies to any scenario that has the following two components:

·         The promised money is not an exchange for tangible goods or services, but rather for something intangible – such as someone else’s confidence, hence the term. But it could be for other intangibles as well, such as for a gamble or a self-imposed penalty for breaking an agreement.

·         The terms of the obligation to pay money is not absolute but based on conditions or uncertainties.

The default rule, before the “exceptions”, is that a kinyan under these circumstances is not binding. Why is it not binding?

Let us first examine what is a binding kinyan and what makes a kinyan work.

A kinyan is an action that finalizes a transaction and passes rights or title to the item(s) being transacted. Briefly, it is the moment a proposed deal becomes a “done deal”.

Let’s make it simple.

Dave has a car, a 2010 Chevy. He is the sole owner or title-holder of the car. This means he has exclusive rights to enjoy the benefits of the car. He also has the exclusive rights to allow another person to temporarily enjoy the benefits while he remains the title-holder and he has the exclusive rights to transfer ownership permanently to another person.

It is now 2019 and Dave wants to liquidate his car for cash. He advertises the car for sale. Sure enough, he gets a call from Sol. Sol comes by and checks out the car and they negotiate a price. They settle on $5000 for the car and they shake hands. A few days later, Sol shows up at Dave’s door with $5000. He puts the money into Dave’s hand and Dave promptly hands him over the keys and his current registration. Sol drives the car out of Dave’s driveway straight over to the DMV and registers the car into his name and drives it home.

Meanwhile, Dave has just finished recounting the $5000 for the fourth time and the home phone rings. It’s Sam. Sam heard that he is selling a 2010 Chevy and he is hungry for one. Before Dave can tell him that the car was sold, Sam offers Dave $6000 for the car. Dave hesitates for a moment and then his cell phone rings. He pushes off Sam and takes the call. It’s his buddy Mort. Mort says he knows how well Dave takes care of his car and it would be perfect for his son-in-law. His daughter is due any day so his son-in-law needs the car like yesterday. He will give him $1000 over his last serious offer.

Understandably, Dave has some misgivings. He calls Sol and tells him, “Listen, I changed my mind about selling you the car. Bring me back my car and I’ll give you back your $5000”. Sol immediately responds, “What do you mean ‘give me back my car’ and ‘you’ll give back your $5000’?? It’s my car. I bought it and paid for it and even registered it into my name. And it’s your $5000. A deal is a deal.” Dave is adamant, “No, it’s my car and I want it back. You can have the $5000 back.” Sol refuses. Dave declares, “This is going to Beis Din!” And it does.

What is going to happen in Beis Din?

Well, as long as the BD is straight and honest (another topic), and both sides tell the exact same story (part of the other topic) as I detailed above, they will certainly send Dave packing. Sol made a clear kinyan on the car. Maybe even more than one. At the moment of the kinyan, title and ownership rights were lifted from Dave and transferred to Sol. It is indeed now Sol’s car and Dave’s money. Sol can unilaterally decide what to do with the car and Dave can unilaterally decide what to do with the money. If Sol agrees to reverse the deal to please Dave, he is welcome to do so. But it is his decision, not Dave’s. Of course, if it were Sol who had misgivings and wanted to reverse the deal and return the car and reclaim the $5000, it would be Dave’s decision whether or not to accommodate Sol. The moment of the kiynan iced the deal. At this point, neither side can unilaterally back out.

So this is the significance of a kinyan. It is the point whereabout neither party can cancel the deal without the agreement of the other side – which would be, in effect, just making a distinct second deal which reverses the first one.

A kinyan means that the deal is irrevocable. From this moment on, one may not unilaterally back out!

But, this also says that a moment before the kinyan, either side may back out!

But there is one more factor which is the key to this post. This is that many poskim define the pivotal point of a kinyan as a display of “gemiras daas” which is an absolute intention of the two parties – the seller to relinquish ownership to the buyer and the buyer to assume ownership. The actions that Chazal determine to be called a kinyan is one that displays such a “gemiras daas” in any given case.

In a typical goods-for-cash transaction, a handshake is not enough because a buyer is not willing to assume risk liability on a mere handshake. This even holds true in the diamond business. Chazal went so far as to nullify a kinyan keseph for the same reason. The buyer is not ready for risk liability as long as the good are not “in his hands”. And so, Chazal ruled that the buyer must physically take control of the goods either by way of lifting it (hagbaha), drawing it away from the domain of the seller into his own (meshicha), and in some cases, “taking the reins” (mesira).

In a case where the goods are located outside of the buyer’s current location and the parties still want to cement the deal, Chazal approved of some substitutes which are meant to simulate an actual kinyan. Those would be a kinyan chatzer, kinyan sudar/chalipin, and kinyan agav.

The main thing is that there should be a clear display of “gemiras daas” on the part of the sides that the transaction is in effect.

This is all very logical when we are dealing with a typical transaction which is a transfer of something tangible for something else tangible. This usually means paying money or providing some other goods or services in exchange for portable goods, real estate, livestock, slaves, or a bride for something else tangible. What we call “something for something”. When the “buyer” takes possession of what he is buying, the seller gets rights to the medium of exchange. The physical kinyan indicates the point of gemiras daas and makes the deal irrevocable.

But what happens if we are offering money or something worth money for something intangible? We are not discussing a marketable service such as calling a repairman, going to a doctor, legal services or just plain hiring a laborer. For all of these, services rendered automatically obligates the recipient to the agreed amount of payment or the market rate. We are discussing something that doesn’t have a clear market value or there is no exchange or just giving something “extra”.

The prime example is any ketuba. On the woman’s side of the deal is nothing more than an undefined commitment: הווה לי לאינתו – be a wife for me. On the man’s side is a bundle of cash which comprises the basic ketuba price – 200 zuz – plus the נדוניא and the “tosefet”. Possibly, the 200 zuz and the נדוניא can be called an exchange and may not require a real kinyan. But the tosefet (not so impressive in Ashkenazy ketubot but can be extravagant in Sefardic ones) is just a bonus for no exchange. What makes the obligations of a ketuba an irrevocable deal?

Likewise, the gemara discusses cases where someone takes upon himself to support his new wife’s existing children for a given amount of time. Other examples are when a person takes upon himself to support an institution or cause or any donation or sponsorship which is pledged “bli neder”. Note, for the moment we are not talking about attaching any conditions on the pledge. No strings attached!

In typical situations where the benefactors are not going to put the money down up front, the recipients may need a guarantee. A potential wife needs to be assured that the husband is irrevocably bound to his financial commitments before she will commit to marry him and the mikvah committee needs to know that the donors will come through before they commit to a contractor. There is nothing physical to exchange or to make a kinyan on. What can we do to cement the obligation and determine “gemiras daas”?

We know that we can indeed create a one-sided, no strings attached monetary obligation or debt. This is called a “hitchayvut”. But the payer can always back out of his obligation unless there is a kinyan to demonstrate “gemiras daas” and make it into a true debt. At that point we look at it as if the payer received a loan from the recipient and is required to repay it as much as any borrower. In actuality, he did not receive any money or anything at all form the recipient, so what facilitates the debt?  

For this, we need to do a simulated kinyan and the primary method is the kinyan sudar (hanky-panky). The recipient (“buyer”) takes a small item such as a handkerchief (sudar), yarmulke, gartel, or a pen and symbolically hands it over to the seller/debtor who hands it right back. This ritual stands in place of a kinyan for the actual goods (which, for a one-sided obligation, do not exist). This is accepted as a show of “gemiras daas” and neither party can unilaterally back out.

We have finally arrived at our key destination. The Asmachta!

All that we have discussed about a one-sided obligation for no tangible exchange applies to a case where the benefactor takes on the obligation unconditionally. He will pay his wife’s ketuba upon termination of the marriage – no ifs, ands or buts. He will support her minor children. Period. He will donate the money to the shul. Period. He will sponsor the student’s scholarship. Period.

There are no strings attached. This is not an asmachta.

But what happens when he offers money on condition that something uncertain occurs?

So we come back to the salesman that offers the buyer double his money back if the buyer is unsatisfied or if the product does not hold up for 90 days. He is essentially making a bet that he prefers not to lose.

This is an asmachta.

Well then, an asmachta can be most any form of gambling or bet. I will pay this money if my number does not come up on the dice or the roulette or if my horse does not place or my team does not win. More legitimate examples are when someone offers their child a prize for getting a good grade or offers his sales team an extra bonus if the sales exceed expectations. “I obligate myself to this amount if you get the good grade or the high sales figure.”

Or, if one promises his wife on the eve of their wedding that if, at some time in the future, the marriage goes sour and is not dissolved promptly, he will pay her an inflated amount of “mezonos” for as long as the marriage is in effect. He is doing this to make her feel comfortable. To obtain her confidence in him.

This is an asmachta. Or, certainly, a candidate for one.

As long as no kinyan was made, the magnanimous gambler/parent/boss/groom does not have to live up to his offer. All agreements are revocable if there was no physical transfer or kinyan. But in the case of a bona fide asmachta, the offer is not binding even if there was a standard kinyan (hanky-panky).

Why not?

Because the uncertainty of the “if” coming to fruition together with the fact that the money is not an exchange for anything tangible indicate that the benefactor did not really commit to his offer. There is a lack of “gemiras daas”.

We are obviously dealing with a situation where the benefactor – salesman/gambler/parent/boss/groom – is backing out of his offer. And this punctuates that fact that he was never committed to it in the first place. So even if a standard kinyan was made, a kinyan that does not indicate “gemiras daas” is not really a kinyan. And so, asmachta lo kanya.

But we know that these types of deals need to be made. Salespeople have to give guarantees to buyers and parents or bosses need to motivate their charges with incentives and some Jewish grooms need to reassure their brides. If the agreements are not binding, they are worthless. What can we do to make them stick?

To solve this, Chazal and our poskim give us some methods of enhancing the kinyan to show a more sincere level of “gemiras daas”.

There are two primary methods discussed in Choshen Mishpat (207) to counteract the problem of asmachta – or the problem of lack of gemiras daas. If you look closer, they are actually two ways of accomplishing the same thing. This is instead of a commitment for a payment to take effect in the future, make the payment take effect right now even if you are not actually paying it.

The first method is to announce at the time of the kinyan sudar (or write into the shtar if there is one) that when the condition is fulfilled, the money is being awarded retroactively as of now – מעכשיו.

The Mechaber (ChM 207:14) explains that “if he did not commit to the transaction, he would not have said ‘as of now’”. This magic word proves to us that the benefactor is committed. Why?

What the benefactor is saying is, “I am prepared to give the money right now. The only reason I need the condition to be fulfilled is to ascertain that the transfer of money is really called for. If a prophet would tell me for certain that the condition will come about, I would fork over the cash on the spot and not even wait for the condition to be fulfilled. But since no one can assure me, it has to wait until showtime.”

This is construed as a show of gemiras daas and ices the commitment. Of course, it helps if we know that the benefactor has the cash on hand.

The Rema requires that, in addition, the kinyan be done in the presence of a “Beit Din chashuv” (a BD that is well versed in the laws of asmachta) or at least to accept that it is done there. The Mechaber recommends this as well but it is not clear if he requires it. To be safe, we always go the extra mile and do like the Rema.

The second method is ye olde “Chachmei Sefarad” trick which is, in effect, a reverse commitment. What happens is that the benefactor first does an unconditional no-strings-attached debt (“hitchayvut”) to the recipient for the amount he is promising. Then, he gets a commitment from the recipient that if the condition for payment is not met, the recipient will forgo the debt of his own free will or allow the benefactor to sue for reimbursement. Again, what the benefactor is doing is committing himself unequivocally to the payment right now and, as such, is displaying clear “gemiras daas”. He adds that this is how all the prenuptial agreements in Sefarad and similar things were done!

The Rema notes that this system always works!

What we have seen so far is that the main problem with an “asmachta” agreement is the lack of gemiras daas. The remedies that are discussed in Shulchan Aruch work because they “restore” the gemiras daas. So the keyword of the day is certainly – gemiras daas.

So what happens if the benefactor made his kinyan with the magic word “מעכשיו” and even actually before a Beit Din chashuv and there is still a question of gemiras daas?

How can this be?

If we go back just a seif or two in Shulchan Aruch to ChM 207:13, there is a very lengthy Rema that introduces us to varying degrees of asmachta. In general, he distinguishes between cases where the fulfillment of the stipulation is in the exclusive control of the payer to where it is in the exclusive control of the recipient and the payer fully expects him to come through on the stipulation, to where it is not in anybody’s control. All of these variations are judged by how much the payer expects for the stipulations to be met and, accordingly, his gemiras daas.

The various scenarios are both very confusing and subject to differing opinions and they open a pandora’s box to many other variations. And if you look at some of the later commentators on this (predominately the Drisha – SM”A – in the Tur Sh”A) and read between the lines, you might come up with a different way to slice the cake. To me, the consensus of the poskim fell along these lines:

·        A scenario where the benefactor wants the stipulation to be met even if he doesn’t expect it. Prime example is the boss who offers a bonus to his sales team for exceeding projected performance. Though he might not expect it, he certainly would like it to happen and has no qualms about surrendering the money if it does. In this case it is very reasonable thatמעכשיו  indicates gemiras daas.

·        A scenario where the benefactor does not want the stipulation to be met but nonetheless, expects it to. Prime example is the gambler. He obviously does not want to lose his money but he knows the odds and he accepts them for the opportunity to gain big if he wins. Here again it is reasonable to say that מעכשיו indicates gemiras daas.

·       The third scenario is what we call a תרתי לריעותא – a double whammy. This is where the benefactor both does not want the stipulation to be met and does not expect it to happen. And the prime example of this is…you guessed it… the BDA prenuptial agreement.

As much as the institution of marriage has deteriorated in the Orthodox community over the past decades, we can still proudly say that the divorce rate is exceptionally low. In the Chareidi communities it is probably hovering about 5% and even among the more liberal Orthodox Jews it is probably no worse than 15%. So even the more modern Orthodox groom thinks he has a better than 85% chance to stay married and he knows himself and [thinks he] knows his kallah and feels very self-assured. It goes without saying that having to actually carry out the prenup is the last thing he ever wants to do.

In a scenario such as this, it is not so reasonable to determine that the benefactor had true gemiras daas even if he signed a document that said מעכשיו and declared a Beit Din chashuv. More so when he is in his disoriented premarital mental state and doesn’t know what an asmachta is in any case.

This double whammy condition is not my own invention. I discussed it in a previous post when we noted that there are even more variations of asmachtas which influence the degree of gemiras daas.

Firstly, I referenced a segment from Reb Shalom Spira’s essay which brought an opinion that מעכשיו  and BD chashuv only helps when there is only one stipulation to the payment. But in a case of multiple conditions to be met, even מעכשיו won’t work. The probable underlying reason is because when there are multiple conditions which reduce the chances of all the stipulations to be met, there is also a reduced gemiras daas.

The second variation that I referenced will was the SM”A in ChM 131:13 sk 25. We know that there is a general dispute in the Rishonim if an unconditional one-sided obligation is binding even when the exact amount of money being pledged is undisclosed. All of the prominent Rishonim except for the Rambam hold that it is indeed binding. Presumably, the underlying reasoning of the Rambam who disqualifies this debt is that, since the person does not know exactly how much money he is committing to, we cannot say that he is committed to the debt even if he made a kinyan. Evidently, the other Rishonim do not see this as a deficiency of gemiras daas.

The Shulchan Aruch (ibid.) is discussing a case of a loan guarantor who obligates himself to cover someone else’s debt where the exact amount of the loan is undetermined. The Shulchan Aruch rules that based on the majority of Rishonim who allow the debt, the guarantor is liable for the undisclosed amount. The SM”A disagrees with the Mechaber and argues that this dispute only applies to an unconditional obligation for an undetermined amount. But a loan guarantor is always obligating himself on condition of non-payment. He says that when there is a stipulation, i.e., asmachta, together with this undisclosed obligation, the major Rishonim will agree with the Rambam to disqualify the debt. (The Shach stands by the Mechaber.)

The SM”A explicitly says that because of the double-whammy, it is too farfetched to assume gemiras daas.  

All told, the issue of asmachta lo kanya is a serious problem that needs to be addressed in a prenuptial agreement that creates one-sided obligations. And the issue is indeed addressed in all the variations and there are different approaches taken.

I hope to be able to do the Consumers Report comparisons in an upcoming post.