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 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 is when a contract is made and a penalty is imposed for reneging. When the two parties sign the contract, neither has any intent of reneging. If one party later regrets the contract and wishes to renege on it, he need not pay the penalty. When he first signed, he never imagined that he would later regret it and be forced to pay. Therefore, this clause is not binding. It is considered an asmachta. He relied on the presumption that he 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, and the other in the commentaries of Tosafos and the Ran. The example of Tosafos and the Ran concerns a contract specifying that if he reneges, he will retroactively be obligated to a penalty from the time the contract is 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 in that commitment. However, when the obligation is incumbent retroactively from the time the contract is 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 Ran).
Commitment in Beis Din
Another kind of asmachta is found in the Gemara itself. The Gemara rules that an asmachta (future clause) made in Beis Din is obligatory. 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 it is not an asmachta, the undersigned parties become legally bound to fulfill their commitments. No one can then claim that he was not sincere in accepting this 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 (stipulations regarding future events), they would make a kinyan (an act of acquisition) 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 was in Beis Din
The Rema (C.M. 207:15) offers another option. They can write in the contract that it was signed in the presence of Beis Din. Although this is not really true, “the [solitary] confession of the defendant is equal to one hundred witnesses.” In other words, if a person confesses that he owes a person money, Beis Din need no longer clarify the veracity of his statement, for in so doing he has demonstrated his acceptance of the obligation; therefore, he must pay. So too, by confessing that the contract was signed before Beis Din, even where it was not, one obligates himself to the same extent. Therefore, he cannot later claim that his obligation was only an asmachta, which is not enforceable (Sma ibid, s.k. 42).
