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Shabbat Parashat Behar Bechukotai 5780

P'ninat Mishpat: Holding Guarantors to their Commitment? part III

(based on ruling 71055 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The plaintiff (=pl) reached a settlement with his wife (=wi) over child support in a beit din as part of an agreement to give a get. Wi’s uncle and aunt (=def) obligated themselves in beit din that if wi would successfully sue to raise the child support, def would pay back to pl the additional sum she was awarded. Beit din gave the obligation the status of a ruling. Wi did sue pl in court, and pl agreed to raise the child support, with the judge giving the agreement the status of a ruling. Pl is now suing def for 31,200 shekels for a few years of additional payments. Def argue that they are exempt for a few reasons: 1. No act of kinyan was made to obligate def, which is necessary because this is not a normal case of a guarantor (i.e., there is no borrower). 2. There was a lack of realization of the likelihood of obligation (asmachta), since def did not know that wi was not bound by the ruling. 3. Furthermore, according to the Rambam, one cannot obligate himself in an open-ended obligation, and one can claim kim li (I follow the minority opinion). 4. The obligation mentions payment in the case where the court rules in wi’s favor, whereas here pl agreed himself to pay.


Ruling: [We have seen that the agreement is valid, and now we conclude with the question of whether it was activated.]

Generally, a guarantor is required to pay only after there has been an attempt to receive payment from the debtor. However, this is irrelevant here because the whole nature of the agreement was that the “guarantors” would be obligated to pay instead of wi.

Was the condition for obligation, that the courts obligate pl, fulfilled? The agreement speaks of a ruling by the courts, and in this case, there was an agreement that was recognized by the court as a ruling. In this we agree with def that since the courts would have approved even much higher sums than agreed by pl and wi, such an open-ended obligation was not what def agreed to.

However, the continuation of the agreement is that def are responsible for all of the expenses that come due to wi’s suit. This should include the minimum plausible amount that the courts would have ruled had there not been compromise. To the extent that there is doubt, it is to the detriment of pl, according to the rule that the beneficiary of an agreement has the burden of proof. The smallest amount that the courts give in cases like this is 2,000 shekels a month for one child.

Pl claims that the costs of this litigation should be included in expenses. However, since we posit that this adjudication into the meaning of the agreement is a legitimate one we do not believe that the obligation relates to that type of expense. It only relates to the expenses of wi suing, which wi had said she was not going to do.

[We are not mentioning the final sum because it includes elements of future payments based on various price indexes.]

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