Asmachta

Bava Batra (10:5) | Yisrael Bankier | 5 years ago

The Mishnah (10:5) discusses a case where one partially paid off a loan. Instead of writing a receipt for the payment, they entrusted the loan document with a third party. The borrower told this individual that if he does not pay the remainder of the loan by a specific date, then the loan document can be returned to the lender. In other words, if the remainder is not paid, then the lender will be able to use the document to claim the entire amount. The Mishnah then records the debate regarding what must be done if the time expires. According to R' Yossi, the document must be returned as stipulated. R' Yehuda however argues that the document must remain in the hands of the third party.

The Bartenura explains that the debate is whether an "asmachta" acquires, i.e. whether such a condition is binding. The Bartenura explains that an asmachta is where one makes a commitment dependant on a condition being fulfilled and is certain at the time he will fulfil that condition. Unfortunately however, once the time expires, that condition was not however met.

Putting aside the question of asmacha for the moment, how can R' Yossi maintain that the contact is returned to the lender? Doing so would mean that the lender can claim more money than was lent, which would appear to violate the prohibition of ribbit – charging interest. The Ritva (168a) explains that this case is not one of ribbit since if the remainder was paid as agreed, then the only the value of the loan would have been paid. Consequently, the extra amount being paid in the event that the condition is not fulfilled, is not defined as "agar natar" – a fee paid for borrowing money – and therefore not defined as ribbit.

The Ritva adds that it is must be considered is if it was stipulated that if the time expires, the original money paid would be defined as a gift. If however it was considered as a payment, then the binding nature (shiabudo) of the document would have already been forgone. Once that occurs the contract could no longer be used to claim the loan even if returned.

Returning to our debate regarding an asmachta, the definition above appeared to include any conditions one might place in a contract. What is the difference between an asmachta and a valid condition that is binding in a financial document?

The Ran explains that it if the condition is dependent on his own action that is within his control, then the condition works. An example of this is the sharecropper that stipulates that if he leaves the land fallow, he would need to pay the land owner a percentage of the expected yield. Similarly, if it is dependent on the other party to fulfil, then he obligates himself. An asmachta is when it is dependent on his own action, but it is not fully in his control to fulfil. That would be like our case, where the borrower now does not have the remaining money (see also Bava Metzia 73b).

The Ritva however compiles the principles of how to define an asmachta based on the lessons of his teachers the Ra'ah and Rashba. Unlike the Ran, he explains that in our case, the borrower's stipulation was an exaggeration and understood as being more like a fine for not paying on time. Furthermore, it was other factors (the need to resolve how to manage the partial payment) that drove him to make that condition. Had the borrower been able to resolve the situation without that condition he would not have made it. To be clear, it was not a position the borrower willing took from the outset. Finally, the Ritva adds, much like the Ran above that an asmachta is where the fulfillment is dependant on his action that are not fully in his control.¹

¹ Perhaps the Ritva adds the distinction of the Ran due to a difficultly of the Ran. The Ran cites the opinion of the Rashba that an asmachta is where the person making the condition does not want it to eventuate and it is more like a fine. The Ran however asks that we find that the case of the mesachek be'kubiya (gambler) is not defined as an asmachta despite neither party wanting to lose the bet. The Ran suggests that the Rashba also needs the rational that if the outcome is dependent on something external (in this case, the roll of the dice) then it is similarly not an asmachta. We find that the Ritva, who communicated the principles he received from his teachers, indeed does combine both explanations.

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