ט״ו בתמוז ה׳תשע״ז (July 9, 2017)

Bava Batra 168a-b: A Transaction With Inconclusive Consent

When is a business agreement so outlandish that the halakha steps in to limit the possibility of such a deal taking place?

The Mishna on today’s daf describes a case where a borrower pays back part of a loan that he owes, and the lender hands the promissory note to a third party in order to assure the borrower that he will not try to collect the full loan with this note. What will happen if the borrower then tells the third party that if he does not pay off the rest of the loan by a specific date, then the note should be returned to the lender so that he can collect the full value? The Mishna relates that in the event that the loan is not paid in full, Rabbi Yosei rules that the third party should turn the note over to the lender; Rabbi Yehuda holds that he should not.

The Gemara explains that this difference of opinion is a question of whether asmakhta kanya or not.

An asmakhta is a promise or agreement obligating the individual at some point in the future, should a specific event occur. As opposed to ordinary situations of a tenai – a standard agreement, that certainly takes effect – an asmakhta usually is an agreement based on the assumption that the condition will never actually take place. We rule like Rabbi Yehuda, who holds that asmakhta lo kanya – that it does not take effect.

Why does the halakha keep an asmakhta from taking effect?

Rav Se’adya Gaon explains that an asmakhta (a transaction with inconclusive consent) is when the person making the agreement makes an exaggerated offer that goes well beyond what the other party deserves by right, like in our case. Alternatively, an asmakhta is a situation where the promise is based on factors that are out of his control entirely (e.g. gambling). In cases like these the halakha determines that the person could not possibly mean to accept the stated terms, so there is no gemirut da’at – no knowledgeable agreement – which is necessary for the transfer of property to take effect.

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