The purchase and sale of land under Jewish law can be effected in several ways. It can be achieved by the payment of money, the signing of a document of title, by occupying the land in accordance with the laws of chazakah, or by way of barter, kinyan sudar. A common requirement for all these methods of transfer of land is that the sale is made with the consent of the seller.
Consent, however, is an elastic phrase under Jewish law and can be stretched almost to breaking point.
Thus we find that in certain circumstances, a Get given on pain of prolonged incarceration or other physical punishment is a valid Get. This is the case even though one of the Torah requirements for a valid Get is that it is given with the free will of the husband. But how can it be said that a person who is punished until he gives a Get is doing so of his own free will?
According to the Rambam, the free will of a person is synonymous with that person’s better self, the yetzer hatov. Deep down, a person wants to be close to God and to the rabbis who explain God’s laws. However, the “other person” inside us, the yetzer hara, often takes over and coerces the will of the yetzer hatov. This is what happens, explains the Rambam, when the rabbis, under certain circumstances, order a person to give a Get and he refuses to do so. The court then administers punishment to the yetzer hara within him until it releases the yetzer hatov to do what the Torah and the rabbis command.
A similar concept of forcing a person to do something until he says “I would rather do what you want than incur more pain” exists in the sale of land. If a purchaser coerces a seller, by use of physical or other force, to sell his land to the purchaser for market price, then the sale is a valid sale, or as the Talmud puts it, talyuhu vezavin, zevinei zevinei. The combination of the receipt by the seller of the market price and his statement of consent, even though elicited under duress, are sufficient to constitute a sale. A gift, or a waiver given under similar circumstances, however, would not be a valid because the donor receives no money in return and is financially bereft after the coercion.
The rationale behind all of this is that at the end of the day the “coerced” seller is happy with the money. It is assumed that somewhere in the process, he consented to the deal because there was money in it for him. The seller may however, rebut this assumption. Prior to the coerced sale of land, the seller may lodge a protest, a moda’ah, in the presence of two witnesses, to the effect that he is selling the land under duress and not out of his own free will. This protest, when reduced to writing (it may also be included in the very deed of sale) and signed by the two witnesses, has the effect of voiding the sale.
The power of protest under coercion is great. It is so great that even God’s Torah could not be forced upon us. We had to accept it willingly. We are told that when God gave us His Torah at Mount Sinai, He suspended an enormous barrel – gigit – over the heads of the Jewish people. He said to them, If you accept the Torah, you will survive and if not, I shall drop the barrel on you and crush you all to death. And so the Jewish people chose survival and involuntarily accepted the Torah. But before doing so, they protested that they were accepting it under duress. Had God summoned them to judgment for disregarding his Torah commandments, they could have pleaded, moda’ah rabah pe’oreitah, the Torah was given to me under duress and I do not have to keep it.
Only later, during the days of Mordechai and Esther, did the Jews, after being saved from annihilation, willingly accept the Torah. Clearly, it is important to the Divine Lawgiver that His commandments be voluntarily accepted by Israel rather than involuntarily imposed. Perhaps this is why the Torah does not refer to Shavuot as the day of the giving of the Torah.
