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Rosh Kollel: Rabbi Mordecai Kornfeld
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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
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