[Avodah] dina demalchuta

[Arie Folger]

While the case for DDD is being eloquently argued and there is hardly
any need for me to add much, there is one point I'd like to raise,
namely the context of the DDD quote from Shemuel in Gittin.

At issue there are contracts written under the auspices of gentile
courts, signed by gentile witnesses, which Shemuel renders kosher on
account of DDD. Now that's not just a matter of saying that gentile
contracts are kosher, because ...

Throughout all generations, Jews have worried, in two respects,
regarding the validity of unusual contracts. One is worrying about
corruption, untruthfulness. Another one is the idea of halakhic
neemanut. These two may look very much alike, but they are not. The
former is something that depends on the situation, while the latter is
the result of how dinim are explained in teh Torah, i.e., hilkhot
'edut, etc.

The gemara distinguishes between extrajudicial contracts, which may
fail on the first ground, and contracts executed under the auspices of
a gentile court, which does NOT fail on the first ground. However,
even a gentile court, however honest it may be, however integer,
however trustworthy, is nonetheless devoid of halakhic neemanut.

So when Shemuel says that gentile contracts executed under aegis of a
court are valid, it means that Reuven can force Shimon to comply with
a shtar signed by Christopher Smith and Jennifer McCoy, despite the
fact that those would never be valid 'eidim in beit din. Does Shmuel
say that such a shtar is valid because benei noa'h nitztavu 'al
hadinin and that is an example of din? No. The Noa'hide argument would
only take us so far, that Noa'hides would be obligated to follow their
rules, but meheikhi teitei that Jews should be subject to that against
the usual halakhic rules? And it is to that that Shemuel says DDD. He
obviously means that because the gentile government decreed such kinds
of contracts binding, that is why we will halakhically consider them
binding, too. Lacking such a government decree, there is no reason
whatsoever to suppose that we would consider the contracts valid.

Rashi does not come to explain that part, but rather to explain why
DDD would not override usual halakha for gittin, too. To that Rashi
says that the Noa'hides are not subject to the Jewish laws of
marriage, as BN marriage follows different rules (there are a number
of ma'hloqot about that, too), and since for gittin there is a
requirement of benei keritut, therefore DDD falls flat in the case of
gittin.

Now we may fruitfully discuss whether gittin is an exception or some
kind of general rule, an issue on which RMB and RZS disagree. Let me
explain.

Shtarot generally come in two flavors, shtarot raaya and starot qiyum
/ 'haleis. A get is clearly of the latter category. But is the shtar
Shmuel considers valid of the latter category, and does DDD even have
the power to create a priori monetary obligations between two Jews, or
does the DDD merely give power to the shtar to function as evidence,
while we suppose that the monetary obligation was created by a bona
fide qinyan?

The former position would rest on ascribing hefqer beit din hefqer
power to the melekh.

I am not sure what the practical difference between the two is. I was
first tempted to say imagine that Shim'on admits that Reuven's shtar
is genuine, but says that the house he sold Reuven was never
transferred through a qinyan (say Reuven was away and couldn't do
'hazaqa). And let's say that Reuven agrees on the latter point. And
let's say that the money was transferred by the bank (transfer of a
shi'abud milve, from Levi owing Reuven to Levi owing Shim' on), so
that there is no qinyan kessef, either. May Shim'on keep the money and
yet keep the house he sold? I don't think so, because at least we'd
say that mishtashei lei, Shim'on benefited from Reuven's wealth and
must provide a counter service. I guess that the difference is whether
Shim'on may still, even weeks after the fact, until Reuven makes a
bona fide qinyan, change his mind and revert the sale.

Anyway, from the above it is quite clear that even without Rashi, just
from teh Gemara, Shemuel is talking about a fairly substantive
legislation, alas one that relates to memonot only. And it
significantly surpasses the power of setting situmta / minhag
hasokherim, as those relate to the terms of a contract and the form of
a qinyan, but neither the validity contract itself nor to creation of
an effective qinyan lacking *any* actual qinyan.


Kol tuv,
-- 
Arie Folger,
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