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 Shabbat Parashat Yitro| 5765P’ninat MishpatAn Agreement to Try to Achieve Something for a Friend - Based on Piskei Din - Rabbinical Court of Yerushalayim - vol. II, pp.57-8)
Case: Reuven sold a home to Shimon and obligated himself to try to secure for Shimon access to a storage room in the building. Shimon complained to beit din that Reuven had not completed that obligation. Reuven responded that since he does not have the power to get access to the storage room without the agreement of others, which is not forthcoming, he has no operative, binding responsibilities.
Ruling: The Maharshdam (CM 265) wrote: “That which Reuven, the seller, made a kinyan (act of binding obligation) to get his mother and brother to agree to the sale is a kinyan devarim (agreement to do something abstract) and a kinyan doesn’t apply to such a thing, because the matter depends on someone else and is not within his hands.” The same author (ibid. 411) discussed one who sold a house and obligated himself to remove all complaints about the sale. Here, the Maharashdam says that the seller is required to act to remove the complaints against the sale.
The resolution of the contradiction seems to be as follows. If one obligates himself to obtain someone else’s agreement, that is a non-binding kinyan devarim, as he has no means of ensuring the results. However, an obligation to make an effort is binding, as the effort is within his control.
In a similar vein, the Chavot Yair (128) and Machane Ephrayim (Asmachta, 4) talk about one who promises money if he does not succeed in receiving the agreement of a third party to a given endeavor. They write that he does not normally have to pay for his failure, because the related undertaking was beyond his control. However, he still would be bound by his obligation to make the necessary effort.
On the other hand, the Netivot Hamishpat (60:10) says that one who committed himself to buy a specific property to give to a friend is not bound at all by the agreement, because it is totally out of his control. However, according to our distinction, the Netivot may not argue on the previous opinions. He discussed a case where the obligation was to buy a specific field and that cannot be binding. However, in our case, where he obligated himself to make the efforts, he cannot exempt himself until all reasonable efforts have been exhausted.
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