Shabbat Parashat Vayeishev| 5771
P’ninat Mishpat: Compensation for Preventing the Ability to Travel(condensed from Shurat Hadin, vol. IV, pp. 294-297)
Case: A divorced wife (=def) had beit din issue a restraining order against her ex-husband (=pl) from leaving the country out of fear that he would not continue child support. However, def did not inform pl of the restraining order, and he found out only at the border crossing to Sinai, causing his planned and paid trip to be lost. Since def signed an agreement to pay damages when she did not give him three days warning about such a restraining order, pl is suing for his lost reservation expenses and for the aggravation of having his vacation ruined.
Ruling: While there is a machloket whether one can obligate himself in a sum of money that is not determined at the time of the obligation (the Rambam says one cannot), the Shulchan Aruch (Choshen Mishpat 207:21) says that one can. This is also the practice of the Israeli batei din, even to extract money.
The classic case discussed is when one intends to give a present to his friend, just that it is not clear at the time how much that will come to. However, if the obligation he accepted is to pay for damages or lost opportunities, then other criteria must be met. The Rashba (cited in the Beit Yosef, CM 61) says that a document that obligates one to pay for expense or loss if a borrower does not pay on time is not binding. The Darchei Moshe (CM 61:6) says that the issue is of asmachta (an obligation that one accepts upon himself because he does not think it will ever come to fruition). Thus it would have to have been accompanied by the steps to overcome asmachta. However, the Darchei Moshe is disturbed why asmachta should play a role since the payment is not a penalty but just a way of recovering loss. In a similar case, the gemara (Bava Metzia 104b) says that a sharecropper who says that if he does not work the owner’s field, he will pay as if he had a successful crop, is required to pay. The Bach (ad loc.) and the Shach (61:10) say that when the profit that was withheld was close to certain, the one who obligated himself has to pay, but if there was only a chance of gain, promising to pay for withholding an obligation is not automatically binding. On the other hand, the Sha’ar Mishpat (61:2) asks on the Bach that while withholding a possibility of another’s profit does not alone obligate payment, when he obligates himself to reimbursement, it should not be seen as an exaggerated obligation that is subject to the laws of asmachta.
In the final analysis, since according to many poskim, a promise to pay for withheld gain needs to conform to the laws of overcoming asmachta (which were not carried out in this case), def is exempt from paying for the lost vacation. Regarding actual expenses as a result of the failure to keep a commitment, most poskim agree that one who accepted upon herself should pay, and therefore def must reimburse pl for the actual outlays for the vacation that were lost (see S’ma 61:12 and Netivot ad loc.:12).
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