The Laws of Asmakhta Are Already Written in Our Hearts

Yonah Lavery-Yisraeli

If time is a river, Hazal would say we stand with our backs to its current. We face the downriver past, able to evaluate what has already drifted into view, but oblivious to what swims toward us from the future. When Moses asks to travel into the future to see R. Akiva, G-d tells him, “Turn to what’s behind you.”^[1] This terse, rather mysterious wording makes sense once we understand that the Talmud conceives of our usual state as facing the past – unless the Divine unsticks us, enabling an upriver glance. But in our days, we as a culture seem to have turned our backs on the future in more ways than one. “People change” has become a satisfying explanation for the end of a marriage. A promise to attend a celebration is little more than a proclamation of theoretical support for the celebrant. No previous mishap is too small to dissect in endless ruminating, and no commitment is too large to evade. The forward gaze into the past is relentless, and our relationships pay the price, because to locate interpersonal bonds exclusively in the past is to forever watch them recede. If we cannot fully free ourselves of this posture without divine assistance, at least we can grow our awareness into the peripheries of perception. Metaphorically, we can tune our senses to change in the riverflow as it pushes on our back, and mentally engage with what causes such change. Literally, we can begin to think of the future as something which can and must be monitored in order to deal with it responsibly. We can, for example, use self-awareness to anticipate likely challenges and adjust our stance to meet them. If we are unaccustomed to practicing self-awareness to such an aim, or have been lulled into a permanent state of improvisational despair which leaves no room for decisive planning, well, no matter – we are not without a tutor in the form of rabbinic literature.

The art of understanding when a commitment shifts from soothing words, meant to allay the worries of a listener, into an obligation which we cannot shirk without incurring or inflicting damage, is known in halakhic texts as asmakhta. An asmakhta is the appearance of commitment where it does not actually exist. We might call asmakhtot “precarious agreements,” as their framework harnesses overt consensus with unarticulated or even contrary aspirations from the parties. Such misyoked communication means that while a deal might initially seem valid, closer examination could reveal it has characteristics of an asmakhta, making the deal non-binding. An example from the Gemara is when two people bolster each other’s confidence in a deal which they have struck by committing to a penalty they intend to work to avoid:

One… gives a [monetary] security to their fellow, and says, “If I go back on my word, this security is forfeit to you,” and the other responds, “If I go back on my word, I’ll double the security for you.”^[2]

Whether the security is doubled or lost has no intrinsic impact on the success of the deal the parties really want to make. Rather, each is proving their seriousness to the other – revealing, as they do so, that proof was needed. Because the parties have no actual wish to resort to the mechanism of the security, we say that neither party actually finalized the agreement.^[3]

This is a messy area of Jewish law. That makes it a perfect match for the mess of our lives. Laws of asmakhta will not provide ordinary people with a clear guide for when they have slipped into obligation to one another, given the fact that it is extremely challenging to distill its complex network of material into a quick set of rules. Instead, learning asmakhta gives us language to describe what is already happening when we try to make plans and bring one another into the future. It does this the way that learning Shabbat laws of mitasek (automatic, unconsciously-performed action) and pesik reisha (inevitable consequence, which is considered to impact our motivation whether or not we are aware of it) give us a treasure of nuance for discussing intentionality, and unique tools for interrogating what we really mean to do. It does this the way that laws of migo^[4] give us a powerful lens to examine the way we orient ourselves under stress between truth and lies. Will the laws of asmakhta alone turn us into more accountable people? No, we need the whole Torah for that, and particularly a revival of interest and vernacular fluency in concepts and practices raised in Hoshen Mishpat, i.e. traditional Jewish jurisprudence. But in an age where weary lack of follow-through has become our dismal expectation, learning asmakhta can go some way toward recalibrating our intuition.

To explain how, some background is required. Etymologically, the word asmakhta comes from the root s-m-kh, to support. Berachyahu Lifshitz posits that this is because originally an asmakhta was understood simply as a binding promise; the term refers to the affirmation both parties give to each other to pre-authorize a future transaction.^[5] If so, it was perhaps understood in a new, pejorative sense by rabbinic invalidators of asmakhta, as it is sometimes said to be made merely in order “lehasmikh havero,” to cultivate a general sense of trust in the other person, rather than to craft a reliable joint course of action.^[6] Thus, it shares a certain emotional DNA with pitumei milei, “enticing words” spoken by a seller to coax a nervous buyer into accepting a deal as-is, without explicitly addressing the buyer’s concern in their contract.^[7] In a way, all Halakhah relating to asmakhta wrestles with this central question: how much should we trust a promise? The question is as painful today as it ever was. Unsure of when responsibility is incurred, indeed only vaguely and uneasily aware that responsibility enters the equation at all, in moments of stress we default toward the lowest-energy option, falling back time and time again toward isolation. If we immerse ourselves in the laws of asmakhta, and gain a clearer sense of what is at stake in our agreements with one another, we can elevate ourselves out of this muddy stalemate.

It must be emphasized that the suggestion is not that we use the halakhic framework of asmakhta as a simple heuristic for deciding when we incur blame for wriggling out of our obligations. Rather, we can allow rabbinic literature about asmakhta to socialize us into a wiser way of being. We depend on people in multiple arenas, such as the home, the street, and the workplace or school, to present us with the feedback we need to develop. In a similar way, each stratum of rabbinic literature offers its own distinct community of voices which challenges and supports us into new growth. We know that it would be weird and self-defeating to view our social circles as a mass of dubious information from which we should extract and studiously apply a single “correct” piece of advice, which then can serve as our byword through life. The clever child listens carefully to the crossing-guard, the panhandler, and the shopkeeper alike, not with an eye to universal obedience, but because she knows that only a complicated and varied pool of information can help her through this complicated and varied life. It may seem naive to argue that the way we treat one another can be improved by a Torah study. It may even seem sadly counterfactual. However, when learning is done in full awareness of a current problem, not behind closed doors but in open community, it may be the best hope we have of really changing course. When asked how the Sanhedrin could have prevented the war that broke out following the Pilegesh be-Givah,^[8] Hazal responded:

The Great Sanhedrin, which Moses and Joshua and Pinhas ben Elazar had left behind for [the people], should have gone and tied cords of iron about their hips, and hiked up their clothes above their ankles, and circulated through all the towns in Israel: one day to Lakish, one day to Beit El, one day to Hevron, one day to Jerusalem, and so to all the places in Israel. And they should have taught Israel proper behaviour for a year – or two, or three! – until Israel had settled in the land.^[9]

Although the Sanhedrin had every tool of coercion available for its use, as well as the ability to craft the most lucid and compulsory pesak, the Rabbis see its most powerful tool as that of face-to-face education which socializes as it informs. We, too, live in estranged and unsettled times, and this type of deep, open learning is as available now as it was in days of legend. And it is precisely derekh eretz, proper behavior, which we can set as our goal in learning about asmakhta.

What is rabbinic material on asmakhta like? I would like to take the reader around this village of thought, and to draw out points which illustrate how it is “very close to you, in your mouth and in your heart” (Devarim 30:14), rather than an intimidating pie-in-the-sky Rabbinic abstraction of an abstraction. To avoid getting stuck on a single strain of thought and proclaiming it the most true or false, as well as to avoid redundancy with excellent systemic overviews on the subject, I will begin not with a survey of the literature, but with a sampling of characters: that is, what the form of each rabbinic stratum has to teach us, in analog with the spheres of home, school, etc. mentioned above which act as major sources of socialization. It is striking that the Talmud shares suspicion of the too-tidy scramble for a halakhic bottom line: when it teaches us about asmakhta, the Talmud presents us not with a pat set of rules, but with a series of tableaux about people who have made unstable or precarious agreements.^[10] The narrative form invites us to map these stories against our own experiences, while the overlay of decisions by Hazal as to which agreements were binding provides a checkpoint for our intuition, obliging us to stop and interrogate our own reactions.

From these, medieval and post-medieval rabbis tease out principles, which can be more freely applied to a broader range of scenarios. This is no easy task: “I exhausted myself, and struggled, and found difficulties and debates to be had on each one from every angle,” records Rashba.^[11] Despite the fraught debate on how to describe asmakhta in a complete, universally-applicable way, it is interesting to note that generations of posekim have felt more or less confident about identifying it in the human activity they see around them, i.e. in their responsa. “I’ll know it when I see it” seems to apply here, a saying which indicates that intuition has matured enough to match the complexity of real life, outpacing our middlebrow attempts to turn wise choice-making into a task achievable via checklist. This system-resistant outcome is a validation of the Gemara’s tableaux approach. Yet it would be too easy to call the project of post-Talmudic asmakhta thinking a failure. Rather, each source highlights crucial details, and describes the relationship between the factors involved in commitment-making in fresh and illuminating ways. They are like the blind elephant-feelers of Indian parable, each of whom lays a hand on a different part of the animal and consequently describes it in what are, on the surface, contradictory terms: “Like a snake,” says the one feeling its trunk, and “Like a tree,” says the one feeling its leg. We must become their blind students, listening through their words to envision the live beast they are skillfully handling.

That said, the reader deserves fair warning. In a typical piece dealing with Halakhah from a philosophical angle, it is expected to take something of a softer focus to the material, bringing broader trends and big-picture ideas. But my argument is that we must get in the weeds, because that is precisely the most delightful and informative place for our minds to play. Hopefully we do not need anyone to tell us that learning Torah is good for us. But we often need real examples – be they representative of a rabbinic consensus or not, be they well-known or not – to show us that rabbinic literature is not an intellectual chess game, but a real conversation about issues that already matter. Why should philosophy be fuzzy? Are we perhaps concerned that if we incorporate detail, our grand claims will be belied? If we actually trust that Torah is true, rather than stating so by way of declaring our fealty to a particular social or religious faction, we can trust-fall our way down the twistiest Early Modern summation, or the strangest medieval responsum. When we open our eyes at the bottom, what we will see will be strangely familiar.

So where to begin meeting this raucous crowd of material – or, for that matter, the dubious, half-hearted enterprises of life? From a place of healthy skepticism. “Every ‘if’ fails to complete a deal,” says Rabbah.^[12] He means that when someone says they will do something if X, our default understanding is that they are not really expressing commitment – even granted the named condition is met. Should you invite me to your party at the park, and I say “Yes, if the weather is nice that day,” Rabbah will not be surprised when I fail to show despite fair skies. Indeed, he will tell you that you should not have bothered to bring food on my behalf.

The question, of course, is how to elevate conversations above this nervous dance. It cannot be done by treating asmakhta as a technicality which can be overcome with a matching technicality. If a timid promise flags as a potential asmakhta, an interpersonal problem already exists, whether one steamrolls over it or not. For example, one characteristic of asmakhta is an expressed willingness to accept punishment if a goal is not achieved or a deadline not met. Everyone knows from experience that remembering dramatic promises one has made in the past rarely feel well-considered or even applicable later on, when so much has changed. That reality cannot be circumvented with clever phrasing alone.^[13]

In the illustration given above, your goal as host is not to entrap potential guests in legalities, but to determine who really does intend to come, and create enough accountability between both sides to overcome low energy at the appointed hour. Although sometimes treated as a technicality arising not from life but from a posited overarching logic inherent to second-order halakhic thinking, laws of asmakhta in fact directly address real-life concerns. They are thus on our side; by “us” I mean not one party over the other, but on the side of all people who seek a better way of relating. In the story of the party in the park, they have already been helpful by handing us a warning sign that what seems like agreement may in fact be signaling its opposite. The problem is the manifestation of hesitation now, so its obvious remedy is to address the now. In fact, conditional property transfers can ensure they are not asmakhtot by literally stating that should the specified conditions be fulfilled, the transfer takes place “from now.”^[14]

The technique works because it invites the parties to pay attention to their immediate thoughts and feelings, and resolve on a course of action that feels vivid and real despite its conditionality. An RSVP is an action that indicates that commitment begins “from now,” i.e. from when it is marked and returned. It may be decreasingly effective in proportion to the way in which a modern RSVP fails to bring the respondent into the now; perhaps clicking a box on an online form is too fleeting and insubstantial an experience to make a footprint in our mental present. There may be other scenario-appropriate ways of making the agreement vivid enough to be truly decisive. The Gemara considers a loan where the lender wishes, in the event of default, to acquire a field worth much more than the initial loan. Certainly the air of disproportionate risk, even of penalty, lends the whole exchange the atmosphere of a terrible gamble. Tur^[15] states that asmakhta can be avoided by stating explicitly what is on the line and how: “If you default, I’ll collect this little orchard right here, and nothing else,” say, as opposed to “it will be mine.”^[16] His insight is that by triggering a clear picture in the now, we can better face what we are willing to do and not do. In a similar way, if you are uncertain whether I really mean if I will show up, you might gently probe a few specifics: “I suppose you’ll be coming on the F train?” “Will we be meeting your little one, or are you thinking about finding a babysitter?” If you are the one being prompted to do something, you might use the tool on yourself by picturing the steps involved. The alchemy of imagination turns Rabbah’s evasive “if” into more of a “when,” granting enough mental contact with the proposal to decide more firmly whether or not to commit.

There are other ways I could respond to your invitation that might raise your eyebrows: “If I can find a ride,” perhaps, or more baffling, “If I don’t come, I owe you $5,000.” It becomes uncertain what I am really expressing and to what extent I mean it. Sifting through frameworks created by his thought-ancestors and his colleagues alike, Beit Yosef distills two factors helpful in figuring out when an offer is really an asmakhta: to what extent the condition is in the promiser’s power to achieve, and whether the penalty the promiser stipulates for him or herself seems all out of proportion to the actual issue at hand (guzma).^[17] The role that exaggeration plays is easy to grasp. We already intuit that when someone offers to punish him- or herself extravagantly, a paradoxical diminution is at work: “So sue me!” means “Leave me alone,” and “I know, I’m such a beast” means “But you know that and accept me on some level, don’t you?” Studying asmakhta reminds us that we don’t have to go along with the expected flow of such self-deprecations, but can take them as an opportunity to reroute the conversation in order establish mutual recognition of the problem: “Wait, to me this is serious. Is it also serious to you?”

What is especially salient about Beit Yosef’s analysis is how he treats agency. Thinking about a condition based on total chance as opposed to total choice, he deftly identifies the zone of greatest hesitation as a blend of the two. He picks three Talmudic examples to illustrate the spectrum: for chance, gamblers, to whom all depends on an uncontrollable roll of the dice^[18]; for choice, a sharecropper who offers to penalize himself, should he not work the field, by paying from the best of his land.^[19] The inscrutable middle of the spectrum is represented by someone who accepts money to go buy wine, but doesn’t buy the wine. Does the errand-runner owe more than simply paying back the money which had been given, because of the purchaser’s lost opportunity?

Rav Hama said: “This refers to one who gives money to a friend to buy wine, but he was negligent and didn’t buy it. He pays him back according to the going rate of wine at the port of Zulshafat.” Amemar said, “I mentioned this teaching before Rav Zevid from Nehardea, and he told me that when Rav Hama said ‘wine’ he meant wine in general, but if the errand had concerned a specific type of wine, who could say if that wine would even be available?” [i.e. a genuine opportunity did not necessarily exist to be lost.] Rav Ashi said: “Even regarding wine in general, there is no [additional penalty for failing to complete the task]. What is the reason? Because it’s an asmakhta, and an asmakhta is not a done deal.”^[20]

Thinking this through, Beit Yosef writes that a type of asmakhta occurs when

…something is partially but not wholly in one’s power to do, like in the case of the wine from Zulshafat. Because [the task is] initially partially under his power, he does not completely commit to it, as one figures that there will be wine to sell – but if others don’t want to sell it, he will not be able to purchase it. That is what Tosafot wrote…^[21]

Here, Beit Yosef comes intriguingly near a psychological analog to sefek sefeka, the “double-doubt” which can loosen the strictures of prohibition in a given situation. A gambler is full of one crystal-clear doubt, namely, what the dice will reveal, but knows precisely what he or she is doing and commits anyway. Sharecroppers have many doubts about the extent to which success is possible given a changeable environment, but know that their own effort, and thus the extent of their own professional liability, is under their control. But that space in-between, which depends on both, is deadly to commitment: blaming exterior factors, we might escape responsibility for the interior; blaming interior factors, we escape the expectation that we navigate the exterior. Simply being aware that plans made through this tricky territory have a tendency to fall through can go a long way toward improving our communication, refining our expectations, and increasing our personal accountability.

So far, we have considered aspects of asmakhta which arise from the parties’ conversation. However, venue and third-party oversight have as much of an impact on what we mean when we say something as the particular wording we choose. In Rabbinic literature, this insight is captured by the idea that an asmakhta is binding if made in front of a beit din hashuv – an “important” court. We immediately follow the point that a statement made in front of a judicial panel must be far more deliberately-crafted than one made while waving goodbye on a subway platform, just as we know not to joke about explosions when going through airport security. We intuit that audience impacts sincerity, though perhaps not at a conscious level; studies suggest the number of witnesses or guests at a wedding can impact the quality of a marriage.^[22] The question then becomes what quality of context could undeniably tip the scales – what is considered an important court.

The diversity of opinions among medieval authorities reflect a diversity of instincts we too might feel on the subject, and they are as different from one another as the elephant’s ear from the elephant’s tusk. Rambam^[23] writes that an important court is one composed of judges who received original semikhah, ordination as empowerment, in the land of Israel. With him are Rif^[24] and Baal Ha-Maor, the latter writing, “This is what we have seen, that a court makes no difference, nor do three laypersons. An asmakhta does not become a settled agreement even if a formal act of acquisition has been performed.”^[25] Though I am wary of overreading, Baal Ha-Maor’s phrase “This is what we have seen” is intriguing. The picture, already glimpsed in the bare pesak shared by Rif and Rambam, is one of weary skepticism. No amount of audience pressure can keep people from making foolish overcommitments. These sages would consider audience impact theoretically significant – but only theoretically, in another time and place when truly authoritative judges exist. Otherwise, perhaps the whole conceit has a whiff of bunk science. If I say I will come to your party under a condition, and you call Rabbah himself to come and witness my shoulder-shrugging prevarication, Rambam would tell you not to get your hopes up.

To the Mordechai, what lends importance is officiality: being appointed by the public, or recognized as the most important court in the city.^[26] This is in fact the framework used to illustrate the example of the difference in feeling between a subway platform and an actual courthouse or TSA checkpoint. It is not just about what we think we can trust, as one receiving the promise. It is also about knowing when it is time to smarten up and watch our speech when we are giving a promise. The polished marble floors and stern bench of judges have given us a warning: if we have any reservations, it is time to make them explicit, or else be prepared to stand by our words. There is not much we can do to incorporate the Mordechai’s perspective in our lives. It is incorporated for us, and in those areas of life in which it is true, we cannot resist or encourage it, but can only defer. Somewhat jarringly, the Hagahot Maimoniot writes that it is enough to write in a contract that it was done in an important court, even if everyone knows it was not.^[27] To steelman his position, we can say that it is a testament to how the real target of asmakhta is the mental state of the parties. A literal courthouse may not matter so much as a courthouse state of mind. I have wondered if this state of mind can be so easily conjured in our days. It is one thing to express the seriousness of a situation by invoking an unusually important beit din when that is a thing people have some experience with. It may not be when our batei din, perhaps especially ultra-competent and authoritative ones, are no longer familiar arenas.

The Rosh thinks quite differently. To him, an important court could be composed even of three laypeople, provided they are experts in the law of asmakhta.^[28] It is clear that what makes the audience effective is not their impressive credentials or even their professional ability to lend the exchange an overpowering sense of officialness. Rather, it is their sensitization to the way people give the impression of reliability while evading responsibility. If they were alert to the risk, yet – perhaps having asked a few judicious, clarifying questions – assessed that the parties were sincere, that says something meaningful about the exchange. This is all the more true when the parties have an awareness that their audience of three has expertise in asmakhta, in short, where there is care taken all round to keep ourselves honest. In essence, this is what I suggest we can become for one another by studying asmakhta: not that we study in order to stand in eerie judgment of one another’s commitments, but that by nurturing a nuanced conscientiousness we can act as supports and agents of clarification.

It may seem surprising to think of judicial expertise in this way – as a branch which sweetens the water of our lives, as it were, rather than simply a basis to justify the formal structuring of a community to act in specific ways. But we are conditioned by the ideas that flow all around us. There is a reason that when fluency in Hoshen Mishpat becomes attenuated in a community, or is feared to be on the path to endangerment, rabbis worry not only about technical miscarriages of justice, but about something even more fundamental, though what that is resists easy definition. The Ran, imploring people to look beyond benefits to Jewish law which can be measured with conventional yardsticks of wellbeing, invokes “contact with Divine flow.”^[29] R. Rafael ha-Kohen, writing in 18^th Century Poland, wrote of Hoshen Mishpat as “The very source of our life,” and addressing its attenuation, asked “How shall we earn deliverance from our exile? By what means shall we obtain the favor of God?”^[30] Serious engagement with Hoshen Mishpat refocuses piety on interpersonal responsibility, rather than personal purity. It frames conflict as an opportunity to develop and demonstrate moral excellence. It sets members of a community thinking in terms of what they owe one another and what thresholds of obligation ought to be before they get entangled in a crisis themselves, at which point it is usually too late to think in any terms other than self-interest. This cultural shift is even more important than accessing specific just outcomes. When all of us begin to take asmakhta seriously, absorbing its nuances and debating its interpretations, we begin to create an atmosphere of beit din hashuv, that is, a society that is careful with its promises, and keeps them.

Although every aspect of hilkhot asmakhta has an important resonance for us in our everyday lives – after all, real life is the material from which they are sculpted – one more aspect deserves special attention, particularly in the current cultural moment. That is that something cannot be considered an asmakhta if breaking the agreement inflicts pain. As one, Rishonim agree that although shiddukhim in their days had all the technical hallmarks of asmakhta, nevertheless it is possible to fine the party who breaks the deal.^[31] The reason, according to Rosh, is that reneging is similar to dealing a peer an embarrassing injury, which is punishable by boshet (financial compensation for shame). “Because the retractor shames his fellow, he commits to following through,” writes the Tosafist Rabbeinu Yitzhak, indicating when the stakes are well-known, the parties are forewarned that they must only agree if they really mean it. The discussion has resonance beyond the particular subject of shiddukhim. We are at a time when human connection has become thin and unstable, and the tide of loneliness seems only to rise. The medieval authorities of Ashkenaz^[32] remind us that it is essential to account for the fragility of the heart, and the fragility of the social fabric more generally. Their point is strengthened, not undermined, by the sober second thought of Ketzot Ha-Hoshen.^[33] Responding hundreds of years later, Ketzot reminds us that boshet devarim, that is, humiliating words or actions which have no physical component, is not inherently a crime. A broken engagement can be costly, causing concrete financial loss, but not all upsetting outcomes are precisely in that mold. We must keep our finger to the pulse of what may follow in the wake of our decisions.

All these strategies have a common thread: staying fully alive to what is going on right now. R. Yehoshua Falk HaKohen, author of the commentary Sefer Meirat Einayim on the Hoshen Mishpat section of Shulhan Arukh, brings a disturbing observation from the Rosh: that we often do have some level of awareness when our relationships are going off the rails, but do our best to stick to the social script until the last possible minute. Why? The Rosh imagines that those on the receiving end of pitumei milei (empty promises) tell themselves, “Silence works in my favor, since maybe [the promiser] will be too ashamed to go back on his promise, after time has passed.”^[34] Of course, this denial-based strategy is ineffective. The level of awareness the Rosh is describing is dangerous precisely because it is low enough to be vulnerable to manipulation. In the fog of dilemma, we mistake acts of self-sabotage for acts of survival. In his responsa collection Yabia Omer,^[35] Rav Ovadia Yosef gives us cause to reflect that conditions for self-sabotage occur not only between individuals, but as an individual navigates predatory social institutions. Rav Ovadia addresses the case of a person who purchases a lottery ticket, fully intending to win. Despite knowing deep down that he or she is only going to lose money, hope and desperation temporarily muffle reluctance – without, however, extinguishing it. It is the psychological equivalent of twilight anaesthetic, and is the reason we wake up after a self-inflicted loss with the feeling that we have been robbed.

‎The Tanna R. Meir has a formula for developing awareness past its vulnerable stage: to check any condition on which one relies for whether or not it is “like the conditions of the children of Gad and Reuven.” To be like the children of Gad and Reuven, we need clarity not only on what will happen if the condition is fulfilled, but also on what will happen if it is not fulfilled.^[36] Perhaps it is time to take the honesty and clarity R. Meir prescribes to our daily lives. We can easily picture the effort and inconvenience on our busy schedules if we work to maintain healthy relationships with our fellow Jews. What will happen to us if we do not? Perhaps it seems that cohesion and fellow-feeling will come naturally as antisemitism worsens, or that at least the vogue for purity in ever-splintering subgroups will collapse. But consider that the fighting between Communist and Social Democratic Jews followed them from the streets right into Nazi camps.^[37] Lifshitz notes that one of the first clear turns toward considering asmakhta unreliable comes when the Damascus Document forbids making them with anshei ha-shahat, ruinous people, i.e. immoral outsiders.^[38] It may not be easy to convince ourselves that our future in fact depends on maintaining integrity with members of our Jewish outgroups. But by starting to think deeply about asmakhta, Hoshen Mishpat, and the challenge of relational answerability, we can better meet what flows to toward us from upriver.

[1] Menahot 29b.

[2] Bava Metzia 48b.

[3] Mishneh Torah, Hilkhot Mekhirah 11:4.

[4] A tool to assess the truth of a claim: if a claim avoids using the typical assertions that a well-made, self-serving lie would use, the claim is more likely to be assessed as reliable. The halakhic literature on migo dives deeply into patterns of self-preserving behaviour under stress.

[5] As preserved in the shitah of R. Yose. Berachyahu Lifshitz, “Mahutah Shel Ha-Havtahah be-Mishpat,” in Sefer Gavriela Shelo: Iyunim be-Torat HaHozeh, eds. Yehuda Adar et al. (Tsafririm: 2021), 205, accessible at https://www.academia.edu/112479087/Berachyahu_Lifshitz_The_Essence_of_the_Promise_in_Mishpat_Ivri_in_Aharon_Barak_Yehuda_Adar_and_Efi_Zemach_eds_Essays_on_Contract_Law_and_Theory_In_Honor_of_Gabriela_Shalev_Jerusalem_Nevo_2021_205_232_Hebrew_.

[6] Sanhedrin 24b.

[7] Bava Metzia 66a.

[8] Sefer Shofetim chapter 19.

[9] Tanna de-Eliyahu Rabbah, chapter 11.

[10] See, among others, the gamblers of Sanhedrin 24b, the errand-runner of Bava Metzia 73b, the debtor of Bava Batra 168a, and the time-activated divorce of Nedarim 27b. See also the various deals described in Tosefta Bava Metzia 1:16-17.

[11] Teshuvot Ha-Rashba, Part 1, Section 833.

[12] i.e., is an asmakhta. Bava Metzia 66b.

[13] For a discussion of how this applies to facilitating the giving of bills of divorce, see R. J. David Bleich, Contemporary Halakhic Problems vol. III, part 2, chapter XIV, available at https://tinyurl.com/3bkyfz2j.

[14] Bava Metzia 66b, Shulhan Arukh Hoshen Mishpat 207:14.

[15] Unlike Shulhan Arukh, though followed by Rema.

[16] Tur Hoshen Mishpat 207:9.

[17] Beit Yosef 13 to Tur Hoshen Mishpat 207.

[18] Sanhedrin 25a.

[19] Bava Metzia 104a.

[20] Bava Metzia 73b.

[21] Beit Yosef 13 to Tur Hoshen Mishpat 207. The referenced Tosafot, to Bava Metzia 73, s.v. “Hatam be-yado hakha lav be-yado,” brings up the ephemerality of commercial sales.

[22]  Galena K. Rhoades and Scott M. Stanley, Before “I Do” What Do Premarital Experiences Have to Do with Marital Quality Among Today’s Young Adults?  (Charlottesville, VA: The National Marriage Project at the University of Virginia, 2014),  https://nationalmarriageproject.org/sites/g/files/jsddwu1276/files/2025-06/SOCI221_NMP_BeforeIDoReport.pdf.

[23] Perush Ha-Mishnah on Mishnah Bava Batra 10:5; see analysis of Beit Yosef 19 to Tur Hoshen Mishpat 207.

[24] Hiddushei Ha-Rif to Bava Batra 78a.

[25] “Teshuvot Hakhmei Provintzia,” printed in Shu”t Me-HaRashba Ve-Rabanim Aherim, siman 36; Ephraim Elimelech Urbach, “Mi-Teshuvoteihem shel Hakhmei Provence,” in Mazkeret: Kobetz Torani le-zekher ha-Rav Yitzhak Ayzik ha-Levi Herzog, eds. Shlomo Yosef Zevin and Zorach Warhaftig (Jerusalem: Heichal Shlomo, 5722), 418 note 1.

[26] Cited in Rema to Shulhan Arukh Hoshen Mishpat 207:15.

[27] Ibid.

[28] Hiddushei Ha-Rosh, Bava Batra 10:19.

[29] Derashot Ha-Ran, 11.

[30] Menahem Elon, Jewish Law: History, Sources, Principles, vol 3 (Jewish Publication Society, 1994), 1580.

[31] See Tur Hoshen Mishpat 207:16 and Beit Yosef ad loc.

[32] The concentration of Ashkenazi sources on this topic reflects a general sense in Ashkenaz that conditions were precarious for making shiddukhim for their children. Such precarity was in great part caused by serious financial instability for Jews in Europe. See Rema to Shulhan Arukh Even HaEzer 37:8.

[33] Ketzot Ha-Hoshen to Shulhan Arukh Hoshen Mishpat 207:7.

[34] Sefer Meirat Einayim, s.q. 3 to Shulhan Aruch Hoshen Mishpat 207.

[35] Yabia Omer, Vol. 7, Hoshen Mishpat, Siman 10.

[36] Kiddushin 61a.

[37] Nikolaus Wachsmann, KL: A History of the Nazi Concentration Camps (Farrar, Straus and Giroux, 2016), 130.

[38] Lifshitz, “Mahutah Shel Ha-Havtahah be-Mishpat Ivri,” 7. Note that the author attributes the change to complex economic causation rather than cultural factors.