ASMAKHTA


ASMAKHTA (Aram. אַסְמַכְתָּא; "support," "reliance"), legal term with two connotations in the Talmud.

(1) In rabbinical exegesis it denotes the use of a biblical text merely as a "support" for a halakhah without suggesting that the halakhah is thus actually derived from this exegesis. Thus for the institution of the *prosbul by Hillel for reasons which are explicitly given, the Talmud in addition gives Deuteronomy 15:9 as an asmakhta (TJ, Shev. 10:3, 39c). Its purpose was to give as much pentateuchal authority as possible to a purely rabbinic enactment but it was also used as a mnemotechnical aid (see: Herzog, Instit, 1 (1936), 2; Jastrow, Dict, S.V.).

(2) In civil law asmakhta is an important concept with regard to contracts and acquisition. It applies to such contracts in which one of the parties binds himself to an unreasonable penalty, which presumes that there was a lack of deliberate intention (gemirat da'at) on the part of the person entering into it. As a result the general rule is laid down that "an asmakhta does not give title" (BB 168a). It is only valid if it can be proved that the contract was regarded as binding (semikhat da'at).

Maimonides is of the opinion that every contract, even in writing, introduced by the conditional "if" constitutes an asmakhta and takes effect only from the time that the condition is fulfilled, since the person entering into the condition hopes that its nonfulfillment will nullify it. There is a difference of opinion as to the extent to which asmakhta applied to gambling and other games which depend upon chance. Asmakhta as a legal term is inherently connected with semikhat da'at ("mental reliance") and gemirat da'at ("perfect intention"), both highly significant concepts in the Jewish law of contract and acquisition. The underlying idea is that the validity of an obligation or a transaction depends on the confidence of one party that the other party's intention is serious, deliberate, and final. Semikhat da'at and gemirat da'at are complementary terms not only because most transactions impose reciprocal obligations, but also because, logically, no finality of intention can be presumed on either side as long as there might be reason that confident reliance is lacking on the part of one or the other. The connotation of "reliance" is evident in the word asmakhta from סמךְ, "to lean" (but see Gulak, Yesodei, 1 (1922), 68, especially n. 1) and, in the context of obligations or conveyance, it must originally have meant that in respect of that "reliance" the transaction was somehow problematic; eventually it came to be associated with transactions which were definitely defective in respect of reliance. It is clear that asmakhta, as a legal term, implies the absence of reliance. Thus, Gulak describes it as the absence of gemirat da'at and semikhat da'at (Gulak, loc. cit.). This description is much too wide as an exact definition of asmakhta. Firstly, the lack of gemirat da'at and semikhat da'at would undoubtedly invalidate the transaction, whereas there is a controversy in the Talmud as to whether or not asmakhta invalidates the transaction. Asmakhta must be seen as restricted, therefore, to cases where the question of finality of intention and reliance is debatable. Secondly, the cases in which the Talmud raises the question of asmakhta are all associated with conditional transactions (BM 48b; 66a–b; 109a–b; et al.). More precisely, the conditions visualized are suspensive conditions (conditions precedent) usually introduced simply by the word im ("if") which project the finalization of the obligation into the future in such a way that the obligation is not operative unless and until the condition is fulfilled, in contradiction to resolutive conditions (conditions subsequent) which allow for the immediate operation of the obligation (me-akhshav, "from now"), though the obligation may be reverted if the condition was not fulfilled. In fact, according to Jewish law, an obligation (or conveyance) would, as a rule, be valid only if it was immediately effective, by explicitly stipulating "from now," i.e., by letting the person obligated to take possession of the property in question actually or symbolically perform an act of *acquisition (kinyan), or the like. Maimonides (Yad, Mekhirah, 11, esp. para. 2 and 6) consequently draws the conclusion that all conditional transactions (i.e., not using the standard formulae of a condition such as me-akhshav (from the present moment) and al-menat (on condition that) but merely im (if)) are invalid on account of asmakhta, because the person obligating himself may be relying (samkhah da'ato) on the fact that the condition may not be fulfilled so that he will not be obligated. Since there has been no perfect intention of obligating oneself, the obligation is invalid ab initio, even if the condition were to be fulfilled.

Linking asmakhta with the rule of condition made the post-talmudic authorities introduce the whole range of the theory of condition into the discussion of asmakhta. There are, for example, fine distinctions between different conditions, the fulfillment of which is dependent on the person binding himself, on the other party or on both parties mutually, on a third person or on an accident. Rabbinic literature is replete with arguments showing how these and other distinctions may be of consequence in considering whether or not a certain transaction is defective on account of asmakhta (cf. glosses to Maim. Yad, Mekhirah and to Sh. Ar., ḤM 207). The linking of asmakhta with the problem of conventional penalties is particularly significant – this is emphasized by Solomon b. Abraham Adret (Resp. 1:933). Accordingly, the term asmakhta would be applicable to cases where a person promises to pay a conventional amount as a penalty, should there be a breach of a primary obligation. The validity of such a promise would be dependent on whether or not the penalty was "extravagant and unreasonable" and whether the fulfillment of the condition was dependent on the person binding himself, or on an accident, etc. The points involved here can be illustrated by the case presented in Bava Batra 168a. The Mishnah there speaks of a debtor who, while paying a part of his debt, allows the shetar ("bill of indebtedness") to be left in trust with a third person, with the instruction that the shetar for the full amount be handed to the creditor, in the event of the nonpayment of the balance at a time stipulated. The transaction comprises, in effect, two obligations, one relating to the actual debt (or rather to the outstanding balance) and the second to the payment of the penalty (the full amount of the shetar instead of the balance). It is clear that the minds of the parties were primarily set on the original obligation, whereas reliance and finality of intention may be in doubt over the matter of the penalty. The fulfillment of the condition is dependent on the person binding himself, which is to be viewed as diminishing reliance on the part of the person he is obligated to. In addition, the extravagance of the penalty is a relevant factor, unlike a case discussed in Bava Meẓia 104a–b, where in respect of land farmed on a percentage basis, the tenant obligates himself to pay a penalty if he lets the land lie fallow. Here the penalty is seen as justified, since it compensates the owner of the land for his damages (see: BM 109a, also Tos., Sanh. 24b–25a). There is a striking similarity to the differentiation in English law between "liquidated damages" and "penalty" proper (in terrorem, or extravagant and unconscionable). From the discussion in the Talmud (BB 168a) in the above quoted passage it would appear that such a penalty arrangement is invalid on account of asmakhta; on the other hand, from Nedarim 27b it appears that, if the arrangements were concluded with the due formalities of a kinyan before a recognized court, it is valid.

Thus already in talmudic times, remedies were sought to secure the validity of penalty clauses in practice, even though on principle they were defective because of asmakhta; this problem continued to occupy the post-talmudic authorities. The authorities in medieval Spain devised the following method to evade the pitfalls of asmakhta. A obligates himself to B to pay a penalty of 100 dinars if he does not fulfill a certain obligation on a stipulated day. A document is drawn up whereby A undertakes in absolute terms without a penalty clause to pay B 100 dinars. A separate document is then drawn up whereby B waives his claim to the 100 dinars, on condition that A fulfills his primary obligation on the stipulated day. Both documents are given to a third person to be handed over to A after he fulfills his primary obligation as stipulated, otherwise they are to be handed to B, who can then enforce his claim for 100 dinars on the strength of the first document (Maim. ibid., 18, and see Isserles to Sh. Ar., ḤM 207:16).

It would appear that such arrangements were current in medieval England, at a time when finance was largely controlled by Jews, but later, the obligation to pay a certain amount and the conditional waiver came to be included in one document, now designated as a "conditional bond" (see: J.J. Rabinowitz, EH, S.V. asmakhta and the literature indicated there).

It appears that this device was applied particularly to shiddukhin ("marriage contracts" – see: *Betrothal) in which were included very heavy penalties against breach of promise. The Ashkenazi authorities however tend to the opinion that the rule of asmakhta does not apply at all in this context, since the penalties may justifiably be considered as fair compensation for the damage, insult, and shame caused by a breach of promise (see Tos. to BM 66a; Sanh. 24b–25a and Sh. Ar., ḤM 207, 16). In the discussion whether and under what circumstances asmakhta applied to gambling contracts, the fact that the conditions are mutual and reciprocal is of significance (see: Sanh. 24b and Tos. in loc.). Asmakhta does not apply to a vow to hekdesh (Sh. Ar., YD 258:10); nor to any transaction strengthened by vow, oath, or handshake, even if it would otherwise be defective on account of asmakhta (ḤM 207:19). If A obligates himself unconditionally to B, there can be no question of asmakhta, and the obligation is valid, even if there was no actual justification for the obligation, as "B owed him nothing" (ibid. 20). The implication of this statement is twofold: (a) asmakhta relates to conditional transactions; and (b) although the defect of penalty arrangement is primarily that it is unjustified, lack of justification does not invalidate a promise, if it was absolute and unconditional. In the Jerusalem Talmud asmakhta is designated as iẓẓumin (TJ, BB 10, 17c; Git. 5, 47b).

[Arnost Zvi Ehrman]

Another view explains asmakhta as a promise, having the same meaning as the term "utterance" (devarim). A promise is not binding (BM 66b), although not necessarily for the reason given by Maimonides, namely, the absence of a deliberate and final intention to be obligated thereby (se mikhut da'at). Geonic literature draws a distinction between the two rationales. There are variant understandings of the difference between a binding and non-binding asmakhta, and inconsistent, contradictory explanations of the distinction between them. All these stem from a failure to distinguish between two basic positions: the position that denies any validity to promises as such; and that which views them as faulty due to the absence of full intent to be obligated thereby. A distinction must be made between these two positions. According to the former, the difficulty inherent in the promise can only be resolved by its conversion into a contemporaneous transaction – "from now" (me-akhshav). This is the rationale behind the mode of transaction known as kinyan suddar (acquisition affected through the (symbolic) raising of a small garment – (i.e., symbolic barter); cf. entries on *Contract and *Acquisition (ḥalifin), in which the party's obligation becomes effective immediately upon completion of the (symbolic) act of acquisition, by virtue of the undertaking to bind oneself).

A conditional transaction (of the kind which does not as a rule allow for its immediate validity as a transaction "from now") in which the condition is expressed using the phrase "on condition that," is a particular example of a promise to perform an act in the future.. The problem that arises regarding the absence of semikhut da'at is no more serious than in other cases in which the parties wish to perform an action in the future. To solve this problem, Maimonides proposed (Yad, Hilkhot. Gerushin 9:1–5) using the fixed rules governing "terminology of conditions" (see entry on *Conditions) to indicate a conditional transaction, which begins "now," thereby solving the problem of asmakhta, and remains in effect until the fulfillment of the condition.

[B. Lifshitz (2nd ed.)]

BIBLIOGRAPHY:

Gulak, Yesodei, 1 (1922), 67–75; N. Wahrmann, Die Bedingung (Tenai und Asmakhta) im juedischen Recht (1938); ET, S.V.; B. Cohen, in: H.A. Wolfson Jubilee Volume (1965), 203–32; M. Elon, in: Divrei ha-Congress ha-Olami ha-Revi'i le-Madda'ei ha-Yahadut, 1 (1967), 201ff.; 268–9 (Eng. summ.); idem, in: ILR, 4 (1968), 435; idem, in: Mafteaḥ, 2ff. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat Ha-lvri, (1988), 1:106, 572f.; 2:895, 900f.; H1, 1343, 1532,; idem, Jewish Law (1994), 1:120; 2:584, 706, 1091; 3:1095f.; 4:1604, 1821; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (1986), 2:13–16; B. Lifshitz and E. Shohetman, Mafte'aḥ. ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Askenaz ve-Italyah (1997), 11–14; B. Lifshitz, Promise and Obligation in Jewish Law (1998).


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