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Thursday, September 14, 2006

Contracts and the Day of Atonement

I always enjoy teaching Jacob & Youngs v. Kent (a/k/a "The Reading Pipe Case") around Yom Kippur.  Consider Cardozo's pronouncement in the majority opinion:

The willful transgressor must accept the penalty of his transgression. . . .  The transgressor whose default is unintentional and trivial may hope for mercy if he will offer atonement for his wrong.

More generally, Contracts is a great course to ponder on the night Yom Kippur starts, during the Kol Nidre service.  The service is a ceremonial nullification of all promises made during the year.  Here's a Birnbaum translation:

All personal vows we are likely to make, all personal oaths and pledges we are likely to take between this Yom Kippur and the next Yom Kippur, we publicly renounce. Let them all be relinquished and abandoned, null and void, neither firm nor established. Let our personal vows, pledges and oaths be considered neither vows nor pledges nor oaths.

What kind of law can contemplate the routine nullification of promises year after year?  Probably not one based on promissory liability at its core.  If you find yourself bored during services this year, take some Fried or Atiyah into synagogue with you and try to understand the deep meaning of promise nullification.

NOTE: Most assume that the nullification applies only to promises made with oneself or with god, not standard commercial promises made between people (who grow to rely?).

Posted by Ethan Leib on September 14, 2006 at 08:58 AM in Ethan Leib | Permalink


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Jeremy, thanks for the correction. So much for relying on that rabbi!

Posted by: Jeff Lipshaw | Sep 14, 2006 4:57:00 PM

A few more, somewhat desultory thoughts, responding to both Ethan’s and Keith’s posts, as well as comments on both sites (so I'm taking the liberty of posting in both places):

A couple liturgical quibbles on Ethan’s comment to Keith’s post: “The future-directed version of Kol Nidre is actually relatively new” – the change was about 1,000 years ago; and “the note about personal vows to oneself or god was only intended to preempt the anti-semitic response!” – I’d say it certainly has been thus used, and for a long time, and probably for good reason . . . but a big part of it was also to emphasize even to laypeople that it was NOT simply a device to get out of promises: much more had to be done to avoid such vows. For much of the prayer’s history some rabbinical authorities preferred that it not be said, for that and other reasons. (Incidentally, commenting on Jeff’s comment: Kol Nidre thus predates the Spanish Inquisition – it was mentioned as early as the 9th century - but must certainly have been embraced by those subjected to it.)

Last, as a legal matter – and I strongly disavow any expertise in contract law – I wonder, with Jeff, whether such anticipatory nullification really would prevent a reliance claim. If I say to someone, “any agreements or contracts I sign onto in the next year are void” (or, using Keith’s “constructive notice” example of public pronouncement, take out a newspaper ad saying that), and then sign a contract, my intuition is that my signing would nevertheless give reason to rely. I agree with Jeff there, whether the consequent suit for breach were before a court of Jewish or secular law.

Posted by: Jeremy A. Blumenthal | Sep 14, 2006 3:17:19 PM

The historical genesis of the prayer was, I believe, in connection with the forced conversion of Jews into Marranos during the Spanish Inquisition. So literally the penitent is disavowing the oaths and promises of loyalty and adherence to Catholicism, while the penitent practices his (hers I don't know) Judaism in secret as a Marrano.

The question then is why does it retain its liturgical power whether as a statement of morality or as a statement of law? Even as a matter of Jewish law, it cannot be that this prior disavowal constitutes an ante hoc repudiation of all civil contracts - it would write whole tractates of the Talmud out of the law. Were one to defend a breach of contract at a Din Torah, my guess is that interposing the Kol Nidre defense, even before the end of Succot, would not suffice to defeat the contract claim.

So it has to be a statement on the moral force of promise as opposed to the legal status of promise. I take it to mean (and this is the point of the article I have coming out in Law, Culture and the Humanities, as well as the other bookend to that theme, an article - admittedly obscure, see previous - in the Cumberland Law Review) that law as a body has an aspect of non-contradiction (I didn't say it this way, but later discovered J.W. Harris' "Law and Legal Science" in which he did) in which we cannot at the same time have duties and non-duties arising out of the same set of circumstances. But the moral force of promise, whether one sits as promisor or promisee, like the moral force of truth-telling, is far more subtle and mysterious. It is not bound by the principle of non-contradiction vis a vis the law, and may not be bound by the principle of non-contradiction when considered in itself. Are we always morally obliged to fulfill our promises, and, conversely, are we always in the moral right when we insist on another's fulfillment of a promise to which we have a legal entitlement? The prayer says to me: laws and promises are human constructs, and while they often do map on the right, they do not always. The "is" of the promise does not always map onto the "ought" of the promise. The only being for whom that is true is God - and you don't have to accept that there is a God to accept that the rest of us must resign ourselves to the existence of the gap.

Posted by: Jeff Lipshaw | Sep 14, 2006 1:37:24 PM

This is a great post, Ethan. See my comments at http://www.truthonthemarket.com/2006/09/14/law-liturgy/

Posted by: Keith Sharfman | Sep 14, 2006 10:53:52 AM

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