Responsa for Nedarim 54:6
הגיע זמן ולא נתן רבי יוסי אומר יתן ורבי יהודה אומר לא יתן ואמר רב נחמן אמר רבה בר אבוה אמר רב אין הלכה כרבי יוסי דאמר אסמכתא קניא
— Here it is different, because he had deposited his rights.<span class="x" onmousemove="('comment',' Not merely promised them. ');"><sup>6</sup></span>
Teshuvot Maharam
Q. It is the custom of judges to consider as valid conditional transactions classified as asmakhta, and even to enforce the collection of the money-fines stipulated in such transactions, when they were accompanied by a kinyan made before an authoritative court. How can the judges enforce the collection of such money when R. Hai Gaon and R. Hananel ruled that these transactions were invalid? Moreover, occasionally the conditional transaction is not concluded before an authoritative court, but the scribe inserts the phrases: "accompanied by a kinyan, made before an authoritative court", as a mere formality. Why should the signature of two witnesses to such writ suffice? Why not require the signatures of three persons, those of the prominent men of the community?
A. The ruling that a conditional transaction accompanied by a kinyan made before an authoritative court is valid, is based on the weighty opinions of R. Zemah Gaon, Rashi, Rashbam, R. Tam, and Ri, while the opinion of R. Hai Gaon is untenable. As to your second objection, if the scribe was instructed by the contracting party (or parties) to draw up the contract, we assume that he was thus instructed to draw up a valid contract in accordance with accepted custom. Since it is customary to insert the phrase cited above in a conditional contract, the scribe was thus instructed to insert it in the contract, and we interpret such instruction as an admission by the defendant that the transaction had taken place before an authoritative court. Were two other witnesses to testify before us that the writ was drawn up by the undersigned witnesses who recorded an ordinary kinyan made in their presence, as a kinyan made before an authoritative court without their (the latter witnesses) having been instructed to draw up a valid contract, the contract would be void. Lacking such testimony we must rely on the signatures of the two witnesses as proof that the transaction was concluded before an authoritative court; the responsibility for any irregularity must rest upon such witnesses.
This responsum is addressed to "my teacher and relative Rabbi Asher".
SOURCES: Pr. 976; Am II, 107; Tesh. Maim. to kinyan, 4. Cf. Moses Minz, Responsa 11.
A. The ruling that a conditional transaction accompanied by a kinyan made before an authoritative court is valid, is based on the weighty opinions of R. Zemah Gaon, Rashi, Rashbam, R. Tam, and Ri, while the opinion of R. Hai Gaon is untenable. As to your second objection, if the scribe was instructed by the contracting party (or parties) to draw up the contract, we assume that he was thus instructed to draw up a valid contract in accordance with accepted custom. Since it is customary to insert the phrase cited above in a conditional contract, the scribe was thus instructed to insert it in the contract, and we interpret such instruction as an admission by the defendant that the transaction had taken place before an authoritative court. Were two other witnesses to testify before us that the writ was drawn up by the undersigned witnesses who recorded an ordinary kinyan made in their presence, as a kinyan made before an authoritative court without their (the latter witnesses) having been instructed to draw up a valid contract, the contract would be void. Lacking such testimony we must rely on the signatures of the two witnesses as proof that the transaction was concluded before an authoritative court; the responsibility for any irregularity must rest upon such witnesses.
This responsum is addressed to "my teacher and relative Rabbi Asher".
SOURCES: Pr. 976; Am II, 107; Tesh. Maim. to kinyan, 4. Cf. Moses Minz, Responsa 11.
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