Asmakta ( ):

By: Marcus Jastrow , David Werner Amram

A word meaning "support," "reliance" (Ket. 67 a ); hence it is used to designate a Bible text quoted in support of a rabbinical enactment (Ḥul. 64 b ; see Jastrow, "Dict." s.v. ).

Legal Meaning.

In civil law Asmakta (surety) is a contract wherein one of the parties promises without consideration to suffer a certain loss, or obligates himself to pay an unconscionable penalty, upon the fulfilment ornon-fulfilment of a certain condition; which promise or obligation is not enforceable at law. "An asmakta does not give title," is the principle adopted for the Halakah (B. B. 168 a ). The reason is that the one who binds himself is presumed to have done so because he certainly expected that the condition, upon the happening of which the obligation was to be complete, would not happen; and, from the nature of the obligation, the law presumes that the serious deliberate intention to be bound by it is lacking. An Asmakta may be made a perfectly valid contract if it is made clear that it was intended to be one; and the manner in which this may be done will be set forth hereafter.

Maimonides is of the opinion that every contract in which the condition is expressed by the use of the word "if" ( ), even though reduced to writing and attested, is an Asmakta (Yad ha-Ḥazaḳah, Mekirah, xi. 2, 3, 6). The contract takes effect only from the time when the condition is fulfilled; and this shows that the obligation was not assumed with serious intent, but that the promise was given only because the promisor certainly hoped that the contract would be nullified by the non-performance of the condition (ShulḦan 'Aruk, Ḥoshen Mishpaṭ, 207, 2). For instance, if A says to B, "I will give you my house if [ ] on a certain day you accompany me to Jerusalem," or "if you bring me a certain thing," even though B fulfils his condition, the contract is void, because it is an Asmakta (Mekirah, l.c. ).

Asmakta Not Binding.

A sells goods to B and receives money on account, and they agree that if B does not complete the purchase, the earnest-money shall be forfeited to A, and that if A does not deliver the goods, he shall pay double the amount of the earnest-money to B. If B is in default, the earnest-money is forfeited to A, because he already has it in his possession; and if A is in default, he must return the earnest-money to the purchaser, but need not give him double the amount, because it is an Asmakta (B. M. 48 b ; Mekirah, xi. 4; Ḥoshen Hishpaṭ, 207, 11).

According to Rashi the earnest-money gives the buyer the right to claim an equivalent portion of the goods sold (B. M. 48 b ).

If a debtor has paid a portion of the debt, and he and the creditor deposit the instrument of indebtedness ("sheṭar") in the hands of a third person with this condition: If the debtor does not pay the balance of the debt within a certain specified time, the creditor shall be entitled to possession of the sheṭar and to the entire amount of the debt, without allowing any credit to the debtor for the amount already paid on account—in such case, even though the debtor does not pay within the time specified, the creditor is not entitled to possession of the instrument of indebtedness. Nor is the debtor obliged to pay that portion of the debt which he has already paid; because this is an Asmakta, since the debtor is presumed to have consented to the condition only because he was certain that he would be able to pay the money within the time specified (Mish. B. B. x. 5, opinion of R. Judah; Mekirah, xi. 5; Ḥoshen Mishpaṭ, l.c. 12). The early Talmudists still considered this a debatable question, but Rab, following the opinion of R. Judah, decided as above (Ned. 27 b ).

As stated above, Maimonides considers that every condition introduced by the word "if" constitutes the contract an Asmakta; but later authorities distinguish three classes of conditions (Gloss to ShulḦan 'Aruk, Ḥoshen Mishpaṭ, l.c. 13):

Three Conditions of Invalidity.

• (1) If the fulfilment of the condition depends in part, but not entirely, upon him who assumes it, it is an Asmakta; as, for instance, if A agrees to purchase goods for B and binds himself that if he does not buy them he will pay B a certain sum. The fulfilment of this condition not depending entirely upon A, he must be presumed to have known that it might be impossible for him to buy the goods, because the owner might refuse to sell them to him (B. M. 73b; Tosafot to B. M. 74a, s.v. "Haka," and to 66b, s.v. "Wei"; see also Tos. to Sanh. 24b, s.v. "Kol.")
• (2) If the fulfilment of the condition depends entirely upon the person who assumes it, and it is not unconscionable, it is not an Asmakta; as, for instance, if A leases a piece of ground to B, to be farmed on shares so that a definite share of the product shall be turned over to A, and B promises that, if he allows the field to lie fallow, he will pay to A the complete value of his lease, this is no Asmakta; because the working of the field lies entirely in his own power, and he has only bound himself to pay the actual damage to A resulting from the neglect to till the field (Mish. B. M. ix. 3). If, however, he has bound himself to pay a penalty far exceeding the value of the lease, it is inequitable and will not be enforced (Ḥoshen Mishpaṭ, 328, 2).
• (3) If the fulfilment of the condition depends on chance, the contract is no Asmakta: this is the case in games of chance. But the contract is valid only so far as the amount at stake is concerned; any loss exceeding the amount actually staked can not be claimed by the winner (based on Sanh. 24b).

Asmakta Validated.

Asmakta may be validated (1) by the use of the form "from now on" ("me'akshaw"); (2) by the use of the form "on condition that" ("'al menat"); (3) by actual possession; (4) by judicial act; (5) by the disgrace suffered by one if the other refuses to perform the contract; (6) by a vow, etc.

• (1) If the words "from now on" (me'akshaw) are used, there is no Asmakta. For instance, if A mortgages his field to B upon condition that if the loan be not repaid within three years, the field shall belong to B "from now on"—i.e., from the date of the mortgage—then if the money is not repaid, the condition is fulfilled, and, as it is retroactive, B is considered the owner of the field, not from the date of the fulfilling of the condition, but from the date of the mortgage (B. M. 65b, 66b; Mekirah, xi. 7; Ḥoshen Mishpaṭ, 207, 9, 14). If A had not intended to enter upon the contract seriously, he would not have expressed his intention by the use of the retroactive words "from now on."
• (2) The form "on condition that" is the legal equivalent of the form "from now on." According to the opinion of Rabbi Solomon ben Adret, the mere use of the form "on condition that" does notdetermine the question; and he distinguishes the case in which it is used for the purpose of consummating the contract from the case in which it is for the imposition of a penalty for the breach of the contract (Gloss to Ḥoshen Mishpaṭ, l.c.). If A gives his house to B "on condition that" he marry a sister of A, the intention of A is that B shall receive the house only after he has married his sister; and therefore the phrase "on condition that" is equivalent to "from now on," and there is no Asmakta. If A and B are adjoining landowners and A wishes to buy B's land for the purpose of preventing it from falling into the hands of a third person, but B refuses to sell, and, for the purpose of pacifying A, declares that he will not sell his land without first offering it to A, "on condition that" if he breaks this promise he will pay A a certain sum of money, this condition is merely a penalty for breach of promise, and is not like the form "from now on," but is like the form "if," and it is an Asmakta ("Bet Yosef" to Ḥoshen Mishpaṭ, 207, 14; responsa of Solomon ben Adret, Nos. 917 and 1149).
• (3) If the subject of the contract is real estate, and possession of it is taken at the time of the contract, in such case, even if the condition is in the form "if," there is no Asmakta (Mekirah, xi. 3, according to Kesef Mishneh, ad loc.).
• (4) If the contract is concluded with Ḳinyan (ceremony of symbolic seizure) in the presence of a tribunal of three judges learned in the law, and the document is deposited in court on condition that it is to be delivered to the debtor in case the creditor is not able, within a certain specified time, to establish his claim, then there is no Asmakta, no matter how the condition is expressed. Unless the creditor is prevented from appearing within the time fixed, by sickness or some other unavoidable occurrence, the debtor is entitled to delivery of the document (Ned. 27b; Mekirah, xi. 13, 14; Ḥoshen Mishpaṭ, l.c. 15).A case is cited in the Talmud in which two parties had a lawsuit, and A moved the court to grant a continuance of thirty days in order to enable him to bring his proofs. The court suspected that the demand for continuance was merely for delay, and granted it only on condition that A should deposit in court all the documentary evidence which he had, with the understanding that if he did not appear within thirty days, the continuance was to be considered null and void. The thirty days passed, and A did not appear. The question arose as to the legality of the condition made by the court, it being argued that this was an Asmakta, inasmuch as the condition was only accepted by A because he certainly hoped to be able to appear in time. The Talmud answers this problem by saying that in this case, inasmuch as the proofs were deposited in court, the non-fulfilment of the condition was tantamount to a relinquishment of the claim, and there was no Asmakta; and it was established as a general proposition of law that if the contract is concluded with Ḳinyan in the presence of a learned court of three judges, and the creditor is not prevented from fulfilling the condition by an unavoidable occurrence, there is no Asmakta (Ned. 27a, b).
• (5) It is customary to fix certain penalties for breach of contract of marriage. In such cases, even though the penalty is an exceptionally large one, it is not to be considered an Asmakta; and it may be collected by law as damages for the shame suffered by the innocent party, for which no amount may be considered too high. And furthermore, in this case, as in the case of gambling contracts, the conditions are mutual and reciprocal, and hence there is no Asmakta (Ḥoshen Mishpaṭ, l.c. 16).
• (6) A conditional promise strengthened by a vow, an oath, or a hand-clasp is not an Asmakta (ib. 19); hence the rule of Asmakta does not apply where objects are conditionally dedicated to religious or charitable uses, these being considered as vows (ib. 19, gloss; ShulḦan 'Aruk, Yore De'ah, 258, 10).If a contract is an Asmakta, a notice in the deed that "this shall not be considered an Asmakta" is of no effect (Ḥoshen Mishpaṭ, l.c. 18): the substance of the contract determines its legal character, irrespective of what the parties choose to call it.

J. Sr. D. W. A.