ONES


ONES (Heb. אׂנֶס), either (1) compelling a person to act against his will, or (2) the occurrence of an unavoidable event that prevents or obstructs the performance of certain acts, or causes them to occur. Both categories of ones are derived exegetically from the verse in the Pentateuch dealing with ones in the sense of compulsion. With regard to the rape of a betrothed maiden, it states (Deut. 22:26): "But unto the damsel thou shalt do nothing." From this the sages inferred that in all cases of "ones the merciful [Torah] exempts" (Ned. 27a; BK 28b).

Compelling a Person to Act against His Will

CATEGORIES OF ONES OF COMPULSION

Ones of compulsion comprises three categories: the threat of death, physical torture, and financial loss. Compulsion by threat of death or as a result of physical torture is adjudged as ones in all cases (Ket. 33b; see Tos. ad loc.). Financial pressure is not considered as ones in cases of transgression or *issur (acts forbidden by the Torah), but as regards money matters, divorce, or an oath, the authorities differ (see below). The threat of duress (le'enos) counts as ones if the threatener possesses the power to execute the threat himself or through the agency of others (Sh. Ar., ḤM 205:7), but some scholars do not permit the extension of ones to such a threat (Rema, ad loc). If the threat is made to a kinsman, for example, it is generally counted as ones of compulsion (Resp. Rashbash no. 339; Haggahot Mordekhai Git. no. 467; Resp. Bezalel Ashkenazi no. 15), but other scholars differ (Tashbeẓ 1:1; Rema, EH 134:5).

IN COMPULSION TO WRONGDOING

Anyone who commits a transgression through ones is exempt (Tos. to Yev. 54a; Yad, Yesodei ha-Torah 5:4) even from the judgment of heaven (Resp. Ribash 4 and 11). Even though a person commits one of the three transgressions of which it is said that he should choose death rather than commit them, he will not be punished if he acted under duress. He is obliged, however, to expend money to enable himself to escape from a situation where otherwise he would be forced to transgress (Resp. Ribash 387; and see *Penal Law).

IN KIDDUSHIN

If a man was compelled under duress to betroth a woman, some authorities hold that the kiddushin (see *Marriage) is valid (Yad, Ishut 4:1 and Maggid Mishnah ad loc. in the name of Rashba), but others maintain that it is of no effect (Sh. Ar., EH 42:1). Those who hold that the kiddushin is valid base their opinion on the fact that a man can *divorce his wife without her consent (Maggid Mishneh loc. cit.; Beit Shemu'el 42, n. 1) – even after the ban of Rabbenu Gershom prohibiting divorce against the woman's will – should he have been compelled to betroth her under duress (Beit Shemu'el, loc. cit.). If a woman is compelled under duress to be betrothed, the kiddushin is as valid as if she had acted willingly (BB 48b), but nevertheless the rabbis nullified it because of her partner's improper behavior (ibid.; see *Marriage).

IN DIVORCE

A husband divorcing his wife must act freely (Yad, Gerushin 1:1–2), and a divorce given by the husband against his will is divorce under duress and therefore invalid. There are, however, cases in which the court may compel the husband to grant a divorce, and in such cases it is valid (Git. 9:2; see *Divorce). Some authorities are of the opinion that in such cases the husband must say, "I am willing" (Netivot ha-Mishpat, Mishpat ha-Urim 205, n. 1), but others say that if he gives the divorce without making any remark then this is tantamount to saying, "I am willing" (Ḥavvot Ya'ir nos. 55 and 56). Various explanations are given for the validity of this divorce despite its being given under duress. Some explain that just as in a *sale under duress the sale is valid because of the assumption that in the end the seller made up his mind to sell (under certain conditions; see below), this is also the case in a divorce given under duress when compulsion is legally permitted (Tos. to BB 48a); others say that as it is a religious precept to obey the sages, the husband is reconciled to the divorce (Rashbam BB 48a); while others hold that the laws of ones are not applicable to one legally bound to act in a particular way, even though his act results from compulsion (Yad, Gerushin 2:20). Financial duress counts as ones with regard to compulsion to divorce (Resp. Rashba vol. 4 no. 40; Nov. Ritba Kid. 49b S.V. ve-ha), but some authorities disagree and do not regard it as ones (Toledot Adam ve-Ḥavvah, Ḥavvah 24:1).

IN SALE

If a purchaser snatches the property of the seller through giving him the purchase price against his will, then this is an invalid sale. In this case the purchaser is treated as a predator, and he is obliged to restore the article he took as if he were a robber (BK 62a; Yad, Gezelah 1:9; see *Theft and Robbery). In certain circumstances, however, though the seller sells under duress, it is assumed that in the end he agreed to the sale, for he accepted money in consideration of the transferred property. Therefore, if he was given the monetary value of the property for sale and took it into his hands, the sale stands (Sh. Ar., ḤM 205:1). Some hold the sale to be valid only if he took the money at the time of the actual transaction (Yad, Mekhirah 10:1, see Mishneh le-Melekh), while others hold it to be valid even if the money was taken afterward (ibid.). If he was compelled to reduce the price, the sale is void (Sh. Ar., ḤM 205:4), but some scholars disagree (Resp. Maharik 185). If a man is compelled to purchase, the transaction is void and the purchaser may withdraw (Rema ḤM 205:12), but here too there are dissident opinions (Ha-Gra, ibid., n. 32). In the event of the purchaser's becoming reconciled to the sale, the seller is unable to withdraw (Netivot ha-Mishpat, Mishpat ha-Urim 205, n. 18). In the case of a business transaction that resembles a sale, such as a compromise when it is uncertain where the legal right lies, if the compromise is agreed upon under duress, then the same ruling applies as for sale and the compromise prevails (Beit Yosef ḤM 205:16).

IN GIFTS

If a man is compelled to assign a *gift, the gift is void (Rashbam BB 47b). A transaction that resembles a gift, such as a compromise when the litigant would have succeeded at law but was forced to compromise, counts as a gift and the compromise is void (Beit Yosef, loc. cit.). Similarly, an obligation undertaken through an acknowledgment of liability where none exists rates as a gift in regard to ones, and the obligation cannot be enforced (Beit Yosef, loc. cit.).

MODA'AH ("NOTIFICATION")

If the person under duress discloses in advance that the transaction he is about to acquiesce to will be effected against his will and that he has no intention of executing it, the subsequent transaction is void through lack of intent. Such a declaration to witnesses is termed mesirat moda'ah ("making a notification"). The witnesses usually wrote a deed of moda'ah, but this was not imperative (BB 40a–b; ḤM 205). If the seller makes a moda'ah, the sale is void even though he accepts the purchase price (ḤM 205:1). A moda'ah made before a single witness is ineffective even if the compeller admits the duress, for, since the person under duress knows that he cannot prove that he made a moda'ah, he acquiesces in the transaction (Sha'ar Mishpat 46, n. 21). If, however, he made the moda'ah in the presence of two witnesses separately, it is effective (Keneset ha-Gedolah, ḤM 46, Tur no. 36). Where the sale is void because a moda'ah has been made, the purchaser too has the right to withdraw on becoming aware that the seller made a moda'ah prior to the sale (Ḥavvot Ya'ir no. 40).

A deed of moda'ah may not be written in the first instance unless the witnesses know the duress (Sh. Ar., ḤM 205:5), and the witnesses must write "we the witnesses know the ones" (Sh. Ar., ḤM 205:1). If they write that the person concerned made a moda'ah in their presence, although they were unaware of the duress, the transaction will be void if he subsequently proves that there was ones. If witnesses testify to, or write, the moda'ah without knowing the ones, and other witnesses testify to the ones, these are combined and the transaction is void (ibid.). In a case where there is duress but the man under it is not able to make the moda'ah, if witnesses know of the ones, this has the same effect as a moda'ah (Tashbeẓ 2:169; Matteh Shimon 205, Tur no. 39). The deed of moda'ah may be written before or after the transaction, providing the one under duress makes the notification before the transaction (Netivot ha-Mishpat, Mishpat ha-Urim 205 n. 6; Keẓot ha-Ḥoshen 205, n. 1; Haggahot Maimuniyyot, Mekhirah 10:2). If the deed of moda'ah is undated and it is not known whether notification was made before or after the transaction because the witnesses are not available, it is valid and the transaction is void (Rema ḤM 205:9), for since the witnesses knew of the ones it is to be assumed, unless there is evidence to the contrary, that the notification was made beforehand (ibid.). In the case of gifts and similar dealings, such as remission of *debt, the witnesses may write the moda'ah without knowing the ones; the moda'ah will then testify to lack of intent (Tur ḤM 205:12 and Beit Yosef thereto). The authorities differ as to why this should be so, some holding that the moda'ah is effective as regards a gift even without the witnesses' knowledge of the ones, because if there is no ones, why should anyone confer a gift and make a moda'ah? It is therefore assumed that there must be ones. Accordingly, if it is known with certainty that there is no ones, the moda'ah may not be written. Others hold, however, that, in the case of a gift, manifestation of lack of proper intent is effective even without ones (see Gulak, Yesodei, 1 (1922), 61).

If after making the moda'ah the one under duress decides to effect the transaction and cancels his moda'ah, the transaction prevails (Sh. Ar., ḤM 205:11 and Sma thereto). It is possible, however, to make a moda'ah canceling ab initio such a moda'ah and declaring that the cancellation all the time of the transaction will result from ones and lack of intent. Such a notification, called "moda'ah de-moda'ah," cancels the transaction. To make certain that an action was not voided through a moda'ah, it became customary at the time of the transaction to cancel every moda'ah and every moda'ah canceling a moda'ah ad infinitum, or alternatively for the party involved to disqualify the witnesses before whom he made any moda'ah with regard to the transaction at hand, thus making them unfit to testify on his behalf. By these methods the previous moda'ot are voided and the act subsists (ibid.; Beit Yosef ḤM 205:15).

ACTS COUNTING AS ONES

A man who performs an act under an erroneous impression of the facts is described as "forced by his heart"; since his understanding of the case was in error, it is included in ones. This halakhah occurs especially in connection with an oath pledged under a mistaken impression. The one who swore the oath is delivered from it and exempted from offering a sacrifice, since he swore in error (Shevu. 26a; Ned. 25b; Maim. Yad, Shevuot 1:10; see *Mistake). Forgetting rates as ones (BK 26b and Nimmukei Yosef, ad loc.), as does an act performed as the result of an overpowering impulse. Hence, for example, a woman who is forced to have sexual intercourse is regarded as having been raped, even though she yielded willingly during the final stages of the act, since she had not the power to resist to the end because her natural impulse compelled her desire (Yad, Sanhedrin 20:3, Issurei Bi'ah 1:9; Resp. Ḥatam Sofer, EH pt. 1, no. 18). A minor girl who commits *adultery, even willingly, is regarded as acting under duress, since "the seduction of a minor is deemed ones" because she has no will of her own (Yev. 33b, 61b; TJ, Sot. 1:2, 16c). Some hold that adultery committed by a deranged woman also counts as ones (Mishneh le-Melekh, Ishut 11: 8), but others are doubtful about this (see *Rape).

ACTS COUNTING AS VOLUNTARY

A man compelled to incestuous or adulterous intercourse (see *Incest) is guilty of a capital offense, since "an erection can only take place voluntarily" (Yad, Issurei Bi'ah 1:9), but some hold that he is not liable for the death penalty (Maggid Mishneh, ad loc.). Duress arising from the person's own situation, as in the case of a man who sells his property because of financial distress, does not count as ones (Sh. Ar., ḤM 205: 12). Similarly, if the duress was related to some other action and he was compelled to act as a cause of this – e.g., if he was compelled to give money and because he did not have it was compelled to sell – this is not ones (ibid.).

Unavoidable Causes

CATEGORIES OF CAUSES COUNTING AS ONES

The scholars developed a threefold division of the types of ones, a classification which was made especially in connection with the laws of divorce; a somewhat similar one was made in connection with the law of *obligations, particularly with reference to *torts. The three categories relating to divorce (see below) are (1) an ones of common occurrence; (2) an ones neither common nor uncommon; and (3) an uncommon ones.

The classical examples of these are (1) if a man returning home was delayed because the ferry was on the opposite bank of the river and so he could not cross it; (2) illness; and (3) if a man was killed when a house collapsed, or he was bitten by a snake, or devoured by a lion (Tos., Piskei ha-Rosh and Mordekhai to Ket. 2b and 3a and to Git. 73a; Sh. Ar., EH 144:1).

A general ones not arising from human agency is termed makkat medinah ("regional mishap"; BM 9:6). As regards liability in the laws of obligation, the division is made between an absolute ones and one which is relative. In the words of the rishonim, the distinction is between an ones "like theft" and one "like loss." The Talmud (BM 94b) has a dictum that "loss is close to negligence" while "theft is near to ones" (Tos. to BK 27b and to BM 82b).

NONFULFILLMENT OF OBLIGATION RESULTING FROM ONES

A man bears no liability for the nonfulfillment of his obligations if he is prevented from doing so by ones (BK 28b; Ned. 28a), with the exception of the borrower (BM 93a; see *Bailees). It is possible that a tortfeasor too is excluded from this rule, since "man is always liable, whether acting inadvertently or willingly, whether awake or asleep" (BK 2:6), or in another version, "whether acting inadvertently or willingly, accidentally or deliberately" (Sanh. 72a). It has, however, been ruled that there are kinds of ones which exempt even tortfeasors (Tos. to Sanh. 76b). A man accepting liability for every ones is not liable for an uncommon one (Resp. Ribash no. 250; Resp. Moharik no. 7; Sh. Ar., ḤM 225:4).

NONFULFILLMENT OF OBLIGATION BY REASON OF ONES

If a man was to execute an act on certain conditions and his nonfulfillment of these conditions was due to ones, the amoraim differ as to whether the act counts as not having been executed because the condition was not fulfilled, although the nonfulfillment was caused by ones, or whether the act stands since it was ones that prevented fulfillment of the condition (TJ, Git. 7:6, 49c; see Beit Yosef and Baḥ ḤM 21; Siftei Kohen ḤM 21). Some explain the former opinion as follows: The rule is that "the merciful [Torah] exempts in cases of ones" and not that "in cases of ones the merciful [Torah] obligates" the other person. For in what way is he concerned with the ones of the other? His obligation was dependent on the other's fulfillment of the condition, which in fact was not done (Siftei Kohen loc. cit.; Resp. Ḥatam Sofer, ḤM no. 1; for other explanations see the ḤM and Malbushei Yom Tov, Kuntres Mishpetei ha-Tanna'im 2). The halakhah follows the first view (Avnei Millu'im, EH 38:1).

ONES IN DIVORCE

Contrary to the principle "the merciful [Torah] exempts in cases of ones," the rabbinic regulation lays down "accident is no plea in divorce." Hence, if a man says to his wife, "This is your bill of divorce if I do not return by such a date," and he does not come back in time because of ones, the divorce is effective and he is unable to have it set aside on the plea that he was delayed by ones. There were two considerations behind this regulation. If the divorce was regarded as ineffective in a case of ones, a chaste woman, when her husband did not arrive on the stated day, would always consider that an accident might have befallen him, even when his absence was deliberate, and thus would remain unable to remarry. A loose woman, on the other hand, would always claim that her husband's failure to return was not due to ones and would contract a second marriage; then, when subsequently his nonreturn was found to be due to ones, the divorce would be invalid and her children from the second marriage *mamzerim. As a result the rabbis enacted that the divorce must always take effect, even though the husband's failure to return is due to ones, and even though he stands on the other bank of the river and cries aloud, "See I have returned and am not responsible because of ones" (Ket. 2b–3a; Tos. to Ket. 3a; Sh. Ar., EH 144:1). The rishonim ruled that this halakhah applies to ones of common occurrence and to ones neither common nor uncommon, but not at all to uncommon ones (Tos., Piskei ha-Rosh, and Mordekhai to Ket. 2b–3a and to Git. 73a and codes).

ONES ON THE DUE DATE

A man who was obliged to perform an action within a certain period of time and relied on the fact that he still had the time to do it until the end of the period, who was then overtaken by ones at the very end of the period, is regarded as subject to ones (Sh. Ar., OH 108:8 and Magen Avraham thereto n. 11), but others do not consider this ones (Rema YD 232:12).

[Shmuel Shilo]

Moda'ah ("Notification")

The Green case (CA 457/61 Green v. Green, 16 (1) PD 318) concerned a husband who went abroad, left his wife, and for a long period of time refused to give her a get (see *Divorce). The husband finally agreed to give her a get, but only after the wife had waived all her financial claims, including her right to claim child support for their daughter. In addition the wife gave a declaration, on the basis of which the Rabbinical Court gave its decision, that should the husband nevertheless be forced to pay child support for the daughter, the wife would be obliged to reimburse the husband for any sum he paid as child support. The District Court ruled that this declaration was invalid, because the husband was obliged to pay child support for his child, and that the wife's undertaking to waive child support payments for the child, and compensate the husband for any sum he paid in child support was void, and hence the verdict of the Rabbinical Court was void. In the Supreme Court the husband claimed that the District Court should have adjudicated the matter in accordance with Jewish Law, since it concerned child support which, according to the law, must be decided according to Jewish Law (see *Maintenance). Justice Haim Cohn ruled that, even if the matter ought to be decided in accordance with Jewish law, under Jewish Law the wife's agreement was invalid as it was given under duress. Justice Cohn explained the difference between duress in the case of sale – in which one must give "notification" during the course of the sale in order to void it – and duress in a gift, where there is no need to give "notification" at the time of giving the gift, "for one does not follow anything in a gift except the expressed will of the giver, since if he does not want to give it with all his heart, the recipient of the gift has not acquired it" (Maim., Yad, Mekhirah 10:3). In his opinion, the husband's threats to refuse to grant a divorce to his wife if she did not waive all her rights constituted duress (see *Agunah) and, in the instant case the wife had given her husband remission from all his debts to her without receiving anything in return. Hence the wife's waiver should be considered as a gift from the wife to the husband, and, therefore, according to Jewish Law, the wife is entitled to retract her undertaking to her husband.

Justice Moshe Silberg opined that the circumstances of this case involved neither waiver nor a gift, since the wife did in fact receive a return for what she waived. Rather, it involved a compromise, in which both sides waived something, and hence is considered a sale according to Jewish Law. In the case of a sale, as noted, since the wife did not give "notification" when making her declaration of waiving the rights due her from her husband, it was impossible to void her undertakings on the grounds of duress according to Jewish law. Nevertheless, Justice Silberg ruled that in this case Jewish law did not apply, as the matter did not concern the laws of maintenance but an ordinary compensation agreement, governed by civil law, under which the wife's undertakings to her husband are void, since she was forced to sign the agreement for fear that her husband would not grant her a divorce and leave her an agunah.

Duress in Israeli Law

Section 17(a) of the Contracts (General Part) Law, 5733 – 1973, which bears certain similarities to duress in Jewish Law with respect to contracts, provides that "A person who has entered into a contract in consequence of duress – by force or by threats – applied to him by the other party or a person acting on his behalf may rescind the contract." According to this section, there is no need to give "notification" in order to void undertakings given under duress, the circumstance of duress itself constitutes sufficient grounds to entitle the aggrieved party to rescind the contract.

[Menachem Elon (2nd ed.)]

BIBLIOGRAPHY:

Gulak, Yesodei, 1 (1922), 57–62; 2 (1922), 70f.; M. Higger, Intention in Talmudic Law (1927); Herzog, Instit, 1 (1936), 101–7; 2 (1939), 130–2, 240–3, 248–75; ET, 1 (19513), 162–72; 5 (1953), 698–707; Z. Karl, in: Mazkeret Levi… Freund (1953), 29, 45f.; B. Rabinovitz-Teomim, Ḥukkat Mishpat (1957), 182–91; B. Lipkin, in: SinaiSefer Yovel (1958), 394–402; S. Albeck, Pesher Dinei ha-Nezikin ba-Talmud (1965), 175–82; Elon, Mafte'aḥ, 2–4; Sh. Warhaftig, Dinei Avodah ba-Mishpat ha-Ivri, 2 (1969), 721–96, 829–66. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:72, 254, 293, 296, 427, 505, 518, 520, 522, 523, 524, 542, 618, 790ff., 808ff.; idem, Jewish Law (1994), 1:80, 297, 348–349, 353, 521, 615, 630, 633, 636ff., 638, 659, 764, 969ff., 990ff.; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (legal digest), 1 (1986), 2–3; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (legal digest), (1997), 2–3; S. Warhaftig, Dinei Ḥozim ba-Mishpat ha-Ivri (1974), 117–31; S. Deutch, "Hora'at Ha-Oshek be-Ḥof ha-Ḥozim," in: Meḥkarei Mishpat, 2 (1982), 1, 25–32; Enẓiklopedyah Talmudit, S.V. "ones," vol. 1, 162ff.


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