Not As An Asmachta?
“An Asmachta [In Beis Din] Does Acquire”
(Nedarim 27b)
Legal contracts drawn according to Torah law often include the statement, “not as an asmachta and not as a tofsei d’shtarei.” People often sign on such a contract without knowing the meaning of these words. We will discuss the meaning of asmachta, and, b’ezras Hashem, when we reach Bava Basra, we will discuss the meaning of tofsei d’shtarei.
Reliance
The word “asmachta” is derived from the word “l’histamech,” which means “to rely.” In our sugya we learn that if a person makes a commitment that he thought he would not be forced to keep, it is not binding by Torah law. The most common example concerns a penalty in a contract for reneging on the contract. When the two parties sign, neither has any intent of reneging. If one party later regrets signing and wishes to renege, he need not pay the penalty since when he first signed he never imagined that he would later have regrets and be forced to pay. Therefore, the clause was not binding. It is considered an “asmachta.” Both parties relied on the presumption that they would not renege.
Current Obligation
Our sugya provides two examples in which a future commitment is legally binding, in contrast to other asmachtos that are not. One is found in the Gemara; the other is in the commentaries of Tosafos and the Ran. The example of Tosafos and the Ran concerns a contract specifying that if either party reneges, he is retroactively obligated to pay a penalty from the time the contract was signed. In contrast to other penalty clauses, this retroactive penalty is binding.
The Rambam (Hilchos Mechira 11:7) explains that when a person commits to a future obligation, we can question whether he was sincere when making the commitment. However, when the obligation is incumbent retroactively from the time the contract was signed, he is certainly sincere. Since the obligation is immediate, it seems more tangible to him. Therefore, he takes it seriously. Some Rishonim argue that this is also called an asmachta, which is not enforceable in beis din (see the Ran).
Commitment In Beis Din
Another kind of asmachta is found in the Gemara itself. The Gemara rules that an asmachta made in beis din must be honored. A person realizes that a commitment made in beis din is serious. Therefore, he fully intends to fulfill it (Ran, s.v. “V’nimtza”).
Not an Asmachta
Since not all contracts are made in beis din, and some Rishonim maintain that retroactive obligations are considered asmachtos which are not binding, a third way of ensuring commitment to future obligations was developed over the course of the generations. By stating explicitly in a contract that a specific obligation is not an asmachta, the undersigned parties become legally bound to fulfill the commitment. No one can claim that he was not sincere in accepting upon himself the obligation.
Conditional Debt
The Rambam (ibid., 11:18) offers another way of ensuring the fulfillment of future obligations: “When the scholars of Spain would make asmachtos, they would make a kinyan to obligate themselves to a certain amount of money. Then, the other party would forgive the debt on condition that the stipulation is fulfilled. If it is not fulfilled, he can then demand payment of the loan.” Since the original obligation is not contingent on any future event, it is not considered an asmachta. Therefore, it is legally binding.
As If It Were In Beis Din
The Rema (C.M. 207:15) offers another option. The two parties can write in the contract that it was signed in the presence of beis din. Although it wasn’t, “the confession of the defendant is equal to 100 witnesses.” He cannot later claim that his obligation was only an asmachta, which is not enforceable (Sma ibid., s.k. 42).