Page:Jewish Encyclopedia Volume 2.pdf/254

216 Asmakta Asmodeus

THE JEWISH ENCYCLOPEDIA

non-fulfilment of a certain condition which promise or obligation is not enforceable at law. "An asmakta does not give title," is the principle adopted for the Halakah (B. B. 168k). The reason is that the one who binds himself is presumed to have done

so because he certainly expected that the condition, upon the happening of

Legal Meaning,

which the obligation was to be comwould not happen and, from the nature of the obligation, the law presumes that the serious deliberate intention to be bound by it is plete,

lacking.



An Asmakta may

valid contract if it is to be one and the

done

made

made a perfectly it was intended

be

clear that

manner

in

which

this

may

be

will be set forth hereafter.

Maimonides.is of the opinion that every contract which the condition is expressed by the use of the word "if" (DK), even though reduced to writing and attested, is an Asmakta (Yad ha-Hazakah, Mekirah, xi. 2, 3, 6). The contract takes effect only from the time when the condition is fulfilled and this shows that the obligation was not assumed with serious intent, but that the promise was given only because the promisor certainly hoped that the contract would be nullified by the non-performance of the condition (Shulhan 'Aruk, Hoshen Mishpat, 207, 2). For instance, if A says to B, "I will give you my house if [DX] on a certain day you accompany me to Jerusalem," or "if you bring me a certain thing," in



even though

B

the contract

fulfils his condition,

is

an Asmakta (Mekirah, I.e.). A sells goods to B and receives money on account, and they agree that ifB does not complete the purchase, the earnest-money shall be forfeited to A, and that if A does not deliver the goods, he shall pay double the amount of the earnest-money to B. If void, because

B

is

it is

in default, the earnest-money

forfeited to A, because he already has it in his posses-

Asmakta Not Binding, (B. 51. 48b;

sion;

and

if

A

is

is

in default,

he must

return the earnest-money to the purchaser, but need not give him double the amount, because it is an Asmakta

Mekirah,

xi. 4;

Hoshen Mishpat,

207,

11).

According to Rashi the earnest-money gives the buyer the right to claim an equivalent portion of the goods sold (B. M. 48J). If a tlebtor has paid a portion of the debt, and he and the creditor deposit the instrument of indebtedness ("shetar") in the hands of a third person with this condition: If the debtor does not pay the balance of the debt within a certain specified time, the creditor shall be entitled to possession of the shetar and to the entire amount of the debt, without allowing any credit to the debtor for the amount already paid on account in such case, even though the debtor does not pay within the time specified, the creditor is not entitled to possession of the instrument of indebtedness. Nor is the debtor obliged to pay that portion of the debt which he has already paid because this is an Asmakta, since the debtor is presumed to have consented to the condition only because he was certain that he would be able to pay the money within the time specified (Mish. B. B. x. Mekirah, xi. 5 Hoshen Mish5, opinion of R. Judah The early Talmudists still considered pat, I.e. 12).

—







21©

this a debatable question, but Rab, following the opinion of R. Judah, decided as above (Ned. 27b). As stated above, Maimonides considers that every condition introduced by the word "if" constitutes the contract an Asmakta but later authorities distinguish three classes of conditions (Gloss to Shulhan 'Aruk, Hoshen Mishpat, I.e. 13): (1) If the fulfilment of the condition depends in part, but not entirely, upon him who assumes it, it is an Asmakta as, for instance, if A agrees to purchase goods for B and binds himself that if he does not buy them he will pay B a certain sum. The fulfilment of thiscondition not dependThree ing entirely upon A, he must be preconditions sumed to have known that it might be of Inimpossible for him to buy the goods, validity, because the owner might refuse to sell them to him (B. M. 73b Tosafot to B.



74a, x.v. "Haka, " and to 665, s.v. "Wei"; see also Tos. to Sanh. 24i, s.v. "Kol.") (2) If the fulfilment of the condition depends entirely upon the person who assumes it, and it is not unconscionable.it is not an Asmakta as, for instance, if leases a piece of ground to B, to be farmed on shares so that a definite share of the product shall be turned over to A, and B promises that, if he allows the field to lie fallow, he will pay to the complete value of bis lease, this is no Asmakta because the working of the field lies entirely in his own power, and he has only bound himself to pay the actual damage to resulting from the neglect to till the field (Mish. B. M. ix. 3). If, however, he has bound himself to pay a penalty far exceeding the value of the lease, it is inequitable and will not be enforced

M.



A

A



A

(Hoshen Mishpat. (3)

328,

2).

If the fulfilment of the condition

depends on

chance, the contract is no Asmakta: this is the case in games of chance. But the contract is valid only any loss so far as the amount at stake is concerned exceeding the amount actually staked can not be claimed by the winner (based on Sanh. 24S). Asmakta may be validated (1) by the use of the form "from now on" ("me'akshaw "); (2) by the use of the form "on condition that" Asmakta (" 'al menat ") (3) by actual possesValidated, sion; (4) by judicial act; (5) by the disgrace suffered by one if the other refuses to perform the contract; (6) by a vow, etc. " from now on " (me'akshaw) are (1) If the words used, there is no Asmakta. mortFor instance, if gages his field to B upon condition that if the loan be not repaid within three years, the field shall belong to B " from now on " i.e., from the date of the mortgage then if the money is not repaid, the condition is fulfilled, and, as it is retroactive, B is considered the owner of the field, not from the date of the fulfilling of the condition, but from the date of the mortgage (B. M. 65J, 66* Mekirah, xi. 7; Hoshen Mishpat, 207, 9, 14). If had not intended to enter upon the contract seriously, he would not have expressed his intention by the use of the retroactive words "from now on." (2) The form "on condition that" is the legal equivalent of the form "from now on." According to the opinion of Rabbi Solomon ben Adret, the mere use of the form " on condition that " does not



A

—



A