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Shabbat Parashat Behar 5774

P'ninat Mishpat: Present Due to a Threat

(based around Maharit 4)

Reuven died and Shimon threatened Reuven’s inheritors that he would go to the non-Jewish courts, according to whom he could also be recognized as an inheritor. Under this pressure, Reuven’s inheritors decided to appease Shimon with a monetary settlement. Subsequently, Shimon died, while some of Shimon’s assets were in the hands of Reuven’s inheritors, who now want to seize those assets to recover that which Shimon had taken from them. May they do so?


It is clear that Shimon did not acquire that which Reuven’s inheritors gave him out of fear, as there is no more classical case of oness (extenuating circumstance of unfair pressure) than this. It is true that the Maharik (185) applied in similar cases the idea that a person sometimes threatens more than he is actually planning to do, and so one can claim that Reuven’s inheritors should not have felt that much pressure. However, that was talking about a case where the threat was to do something external from which the person threatening would not have gained. In this case, though, Shimon threatened to go about receiving a portion of Reuven’s estate and that is exactly what he continued doing until he received it under pressure. Even if we compare this case to that of the Maharik, the Maharik does not say conclusively that that which was given under pressure was valid but that it is not clear. In his case, that was sufficient so that the one who received could hold on to what he had. However, in this case, where Reuven’s inheritors are already in possession of the assets in question, it is they who can hold on to them due to doubt.

There is also ample room to disagree with the Maharik (185). The Maharik is based, to a great extent, on the fact that the giver did not make a moda’ah (disclaimer). However, the consensus is that when there are witnesses who are aware of the oness, a moda’ah is not necessary. While the Rosh does not seem to be in agreement, one should realize that the Rosh clearly says in a case where one side gave a present without compensation, a moda’ah is not necessary, if witnesses were aware of the oness. Again, even the Maharik only spoke about a not fully clear oness and treated the matter as a safek. While there is much to argue with on the Maharik, in this case all can agree that Reuven’s inheritors can keep that which is already in their hands.

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