More Discussions for this daf
1. Keeping a "Pasul Sefer Torah" 2. Shtar Amana, Shtar Al Tenai 3. Stipulation
4. Rav Nachman

Dovi Schamroth asked:


I recently had a business question that came up while learning with my chevruta on Kesubos 19a.

Here is the question:

The Gemara on Kesubos 19a asks about Eidim that declare that the Shtar that they signed was really a shtar Amana. Rashi says that a Shtar Amana is a Shtar that states that Reuven lent Shimon 100,000 Shekels but in reality no transaction has taken place yet and Shimon trusts Reuven not to claim the money back until the money is actually lent. ie it is a shtar that mentions a business transaction as having happened which really hasn't yet happened.

The conclusion of Rav Yehudah is that they are not believed since such a document is illegal and assur and the eidim would be testifying that they are reshaim, (and Ein Adam Masim Atzmo Rasha). And such a contract you cannot keep in your house as it falls under the category of "Al Tishkon BeOhalecha Avla"

Another Category of a Shtar on the next amud is a Shtar Al Tnai. Reuven will lend Shimon 100,000 Shekels on condition that Shimon does X. The Gemara Discusses whether the condition is considered part of the Shtar itself. ie, if the condition hasn't yet been fulfulled then the shtar isn't a complete shtar, or whether they are two seperate entities(Shtar Lichud, Tnai Lichud). ie We have a Shtar that is signed and agreed upon but there is another matter of a condition to fulfill before we act on the shtar The nafka mina would be if Reuven sees that Shimon hasn't fulfilled the condition yet and has decided to renege from the deal. If you say that the condition and the Shtar are one then there is no agreement yet, but if you say they are two seperate entities they have a biding agreement and are waiting for Shimon to fulfill the condition (obviously in a limited time) - and Reuven therefore cannot renege.

The halachik conclusion seems that they are two seperate entities. The contract and a condition and Reuven cannot renege from the deal even if the contract hasn't been fulfilled. (I'm assuming that Shimon has the same din that he cannot renege? Am I right?)

These are two types of contracts

Amana - a signed contract saying Reuven lent Shimon money, but actually that is not true yet. This type of contract is Assur

Shtar al Tnai - a contract that is based on Shimon fulfilling a condition and then Reuven will lend him money. They are two seperate entities and neither party can renege if the Shtar is signed.

My Case:

I am signing up with a credit card company in order for customers to pay me via Credit Card. There was one document that was missing from my office that I needed to get from Mas Hachnasa and the CC company needed this document to have the contract go through. My accountant recommended to save time that I sign all the paperwork and then when I get the document the service will commence and only then they will charge me my startup fees. And that is what I did.

After learning this Sugya my chevruta and I were discussing whether such a document might fit into any of these categories. Ie,Amana - I have a signed document and I am trusting them not to charge my account the startup fee until I give them the document. In which case this signing was actually Assur and once it is signed it is considered an Avla and should be terminated or completed quickly.

Or Maybe Al Tnai, I agree on using their service but they will start charging on condition that I fax the document. In which case, if I found a cheaper company before I fax the document, I cannot renege from the deal (I signed the papers) or rather I can't cancel the deal until the startup fee is charged. Ie I am commited. Another option came to front which would bypass the whole CC company and therefore this question is quite Lema'ase.

Often this type of deal is signed where one paperwork is missing but to save the second trip you sign the document. I can recall doing this with many different companies, banks and organizations. Does this fall under any of these categories or is it something different entirely.

Thank you

Dovi Schamroth, Ramat Beit Shemesh, Israel

The Kollel replies:

First of all it should be stressed that our Kollel is not intended as an address for asking practical Halachic questions, and a question like this should be posed to a Rabbi competent in answering on matters of monetary Halachah. However I will try and look at the principles behind this question as they appear from the Gemara.

(1) It seems to me that there is an essential difference between your case and between the Shtar Amanah of the Gemara. In the Gemara the Shtar says that Reuven lent Shimon 1,000 Shekels but in your case it seems to me that even though you signed with the credit company all the forms necessary, nevertheless until you receive the missing document from the Mas Hachnasah neither you or the CC have started doing business together. I am told that it is acceptable to renege from one's business with a CC whenever one wants too, and if this is true there should not be a problem of "Mechusrei Amanah" either (see Bava Metzia 49a that if someone does not fulfil what he said this constitutes a lack of trust). It does not say on any of the forms that you owe anything yet to the CC, as long as you have received no services from them, so the case is not similar to the Shtar Amanah of the Gemara. (Please correct me if I have any of my facts wrong).

(2) In the case of the Shtar Al Tnai, I did not see in the Gemara that Shimon cannot renege from the deal. Rashi 19b DH Tnai writes that Reuvan sold something to Shimon on condition that Shimon should do X. It is true that if Shimon does X then Reuven must fulfil his promise to sell, but it does not say anywhere that Shimon is obligated to do X. Shimon may decide not to do X but if he does not, then Reuven is no longer committed to sell.

Therefore even though the CC will start charging you on condition that you fax the document, I do not see why you have an obligation to fax them the document.

Kesivah u'Chasimah Tovah

D. Bloom