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THE DAFYOMI DISCUSSION LIST brought to you by Kollel Iyun Hadaf of Yerushalayim Rosh Kollel: Rabbi Mordecai Kornfeld [EMAIL PROTECTED] [REPLY TO THIS MESSAGE TO DISCUSS THE DAF WITH THE KOLLEL] ________________________________________________________________ General: Contracts Brenda Rich asked: Hi. I wonder if you could help answer this question: Why is the contract between Shylock and Antonio, in The Merchant of Venice, regarding a pound of flesh, an unenforceable contract according to Jewish Law? Thank you for your help. Sincerely, Brenda Rich --------------------------------- The Kollel replies: (a) It seems from your question that you are aware that the question of Shylock's contract has been discussed in the Halachic literature. Noteably, Rav Shlomo Yosef Zevin wrote a Halachic analysis of the contract and included it in his Sefer le'Or ha'Halachah. His conclusion is that the contract - as you wrote - was null and void from the outset. The reason: man has no ownership of his body except to the extent that he is allowed to use it for physical activity. Therefore, Antonio was not able to offer a pound of his flesh as collateral on the loan. It was equivalent to him offering someone else's house as collateral. The Shulchan Aruch haRav (Hilchos Nizkei Guf, 3) says that one is not allowed to physically hurt another person even if they give him permission to do so. The source for this Halachah is a Mishnah (Bava Kama 90), but the author of the Shulchan Aruch haRav adds this reason: because one has no ownership over his body. Rav Zeven builds on this concept to develop a very interesting idea: payments for damaging someone else's body are not compensation, but rather Kofer (atonement) for that body part. In other words, if Reuven puts out Shimon's eye, the Beis Din doesn't compensate Shimon for the loss of his eye (because it doesn't belong to him). Instead, they give him a Kofer payment in place of putting out Reuven's eye. So what would have happened if Shylock and Antonio had come to a proper Beis Din? The Dayanim would have informed Shylock that he has no collateral against his loan, but Antonio would still have to pay Shylock his money. (b) Rav Moshe Sternbuch shared with me, recently, an interesting and related question. A man sold one of his kidneys to someone else for $100,000. He then got a better offer of $120,000. Can he renege on the first sale? Based on the above analysis, it seems that he could because, since the kidney is not his to sell, the original Kinyan didn't take effect. He probably is classified as Chaser Amanah (lacking reliability), but it doesn't seem that he would receive the more serious curse of Mi she'Para. (This is not to say that he is not allowed to receive money for donating his kidney, just that it is not a sellable item like his car). (c) By the way, it is not clear that everyone agrees with Rav Zevin's ruling. The Minchas Chinuch (Mitzvah 48) and the Turei Even (Megilah 27a) both say that a person can give someone else permission to wound them. This would imply that a person has a certain ownership over his body; perhaps he could sell a body part, and perhaps he could make a part of his body collateral. Assuming he could, what now would be Shylock's ruling in Beis Din? Rav Zevin builds a strong case for the idea that if two people make some kind of monetary deal that involves having to do something that is forbidden, the monetary aspect of the deal takes effect and neither party can claim that the deal is null and void because it involves illegal actions. For example, Reuven lends Shimon money with Ribis (interest). Now Reuven decides that he can't possibly take forbidden Ribis from Shimon so he asks for his money back early without Ribis, claiming the deal was made under illegal premises. Shimon can refuse and say "I'm willing to pay the interest; if you don't want to take it that's you're problem". (Of course, if Shimon refuses to pay the Ribis because it is forbidden, then Reuven can demand the money back). Applying this to our case, we would say the following: the collateral was a good collateral, but there were problems involved in collecting it. According to their reading of the bond, it was forbidden to take any blood. Also - even though it is permissible to wound a person with their permission - it may be forbidden to endanger the borrower's life by removing a pound of flesh near his heart. Therefore, the borrower could say to the lender: "I'm willing to let you take the collateral; if you don't want to, that's your problem", and the lender essentially loses his money. Kol Tuv, Rabbi Y. Sigler -- No virus found in this outgoing message. Checked by AVG Free Edition. Version: 7.1.409 / Virus Database: 268.15.15/581 - Release Date: 12/9/2006 _______________________________________________ Daf-discuss mailing list Daf-discuss@shemayisrael.co.il http://mailman.shemayisrael.com/mailman/listinfo/daf-discuss_shemayisrael.co.il