[Avodah] What would a Torah government look like

[Eli Turkel]

To my mind one of the greatest challenges to a Torah government would
be modern day commerce

A simple example  one makes an electronic reservation by computer for
a hotel room or
plane flight and holds it with a credit card. When one arrives they
refuse to honor their commitment.
Upon screaming they answer that according to halacha a promise to do
some action is not
enforcable and no kinyan was done. Even if one paid in advance money
is not a kinyan.
7 tovei hair doesnt help since one cannot declare a sale without a
kinyan or with a money
kinyan. At best chazal declared some actions like a handshake a kinyan
in some circumstances
but a computer transaction has none of that. With the increased use of
computers and faxes
very little commerce is done in the presence of the two parties. Banks
transfer money between
themselves on an automatic basis without any human intervention. How
can there be
gemirat daat when no human even knows it is happening.

A further problem is davar shelo ba laolam. Many of our transactions
involve future products.
One buys an automobile to be delivered in a month and the car does
even exist yet. Certainly
the futures market would be in trouble. Again a local community has no
right to declare a
davar she lo bah leolam as being valid

Haym Soloveitchik  has an interesting recent article on Raabad. He
points out that
endorsing a check is a transfer of a note of indebtedness, According
to Shmuel one has the right
to forgive a shtar chov. In essence that would make transfers of checks useless.
As he stresses commerce is based on the ease of use. It is of no use
that this is stealing
and one can go to court to collect damages. No one wants to go through that
see for example tosafot of Rash on ketuvot that wonders how one can sell a debt.
Even the status of paper money is debatable. BTW I have discovered
that in Europe nobody
uses checks. Instead things are done by bank transfers which again
present kinyan problems.

Some of these problems such as the status of a corporation on dealt
with by poskim on the
level of ribit or chametz bepesach. These involve issurim and so the
poskim have to make
decisions, frequently lechumra, ie dont use paper money to sell
chametz and dont own stocks
in beer companies over pesach.

I would be interested if there are teshuvot about these issues from a
choshem mishpat view.
Thus there is no issur in selling something that does not exist or
transfering goods without
a kinyan. The difficulty arises only when one wants to enforce the
contract and the other side
refuses. If one looks at most teshuvot on choshem mishpat they involve
issurim or else
relations between neighbors. If someone sells future pork bellies and
loses million of dollars
and refuses to honor the commitment it goes to a secular court and not a bet din

BTW in the article of HS there is a fundamental disagreement between
Haym Soloveitchik and his
critic R. Buchwold. HS believes that it the job of a posek or RY to be
inventive to solve contemporary
choshem mihspat problems and not just issur veheter. The basic thrust
of the article is the
inventiveness of Raavad to do exactly that. R. Buchwold looks at it as
almost a reform jew
chabging halacha due to changed circumstances. HS argues that there is
a basic difference
between Orach Chaim and Yoreh Deah where that approach is discouraged
and Choshen Mishpat
where it is necessary if halacha is to be relevant to modern commerce.

-- 
Eli Turkel