Illegal Deals

By Rabbi Chaim Chazzan

 

Reuven made a deal with a pauper called Shimon that he will reveal to him the name of an unknown philanthropist Levi who gives a substantial sum to every fundraiser who approaches him. However, Reuven stipulated that he will only share that information on the condition that Shimon will give him half of the money that he receives from Levi. Shimon accepted the condition. Is Shimon obligated to keep his word and give half of the money to Reuven?

 

If Shimon claims he never meant it sincerely and only agreed in order to trick Reuven into revealing the name, he is not obligated to keep his word. This is based on the principle known as “meshateh ani boch” – since it is not the norm to sell the name of a philanthropist, Shimon can claim he was fooling around, and he would then be exempt from paying. However, Shimon can only claim “meshateh ani boch” when, at the time, he actually meant to fool Reuven, but not when he intended to sincerely accept Reuven’s condition.

Yet, in truth even if he sincerely accepted the condition and made a formal kinyan, he will nevertheless be exempt from paying. The reason: this case is an example of a ‘halachic vicious cycle’ in which case an obligation cannot take force, and the money therefore remains in Reuven’s hands.

Let us explain:

There is no question that had Levi known of the deal between Reuven and Shimon he would not have given Shimon that amount of money, for his intention was to assist the poor man and not the well-to-do Reuven. Therefore, had Shimon asked a shaila by a rov whether he may solicit from Levi with the intention of giving half to Reuven, the rov would forbid it, since “anan sahadi” (– lit. “we are witnesses,” meaning that the Beis Din are ‘witnesses’ to the obvious fact) that Levi would have never agreed to give the money under these circumstances.

The result would then be that Reuven would have gained nothing from the deal, since Shimon would be prohibited from soliciting the money at all. Hence, Shimon need not give anything to Reuven. For if Shimon must give the money to Reuven, then retroactively Shimon was not permitted to solicit the money, this would obligate him to return the money to Levi. Once he does that, his obligation to Reuven would cease to exist. If in turn the obligation to Reuven is no longer binding he may then solicit.

In other words: If Shimon is obligated to pay Reuven, then he is prohibited to benefit from the information to solicit from Levi. Once it is forbidden for Shimon to solicit, he is not benefiting from Reuven’s information and does not owe him anything. If he doesn’t owe Reuven then he may solicit, but if he solicits he will owe Reuven which will forbid him to solicit, and the circle continues indefinitely.

In summary: Since it is impossible to resolve this issue, the money remains in the hands of Reuven, with no obligation to pay out any money.

Another point: Had Shimon been obligated to pay Reuven for the information, he would be prohibited from soliciting from Levi, which would render the information worthless. Therefore, Shimon may use this information which is of value to him based on the principle of “zeh nehneh vezeh lo chaser” – one is exempt from paying for benefit in a situation that the other party loses nothing. For example if someone used someone else’s property of a type that is not generally rented to others, he is exempt from paying, since he took nothing from the owner.

 

Reprinted with permission from  Lmaan Yishmeu – a project of Mercaz Anash. To see more articles visit Mercazanash.com

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