Simon Jackson
Legal Advisor to Torah Mitzion
The expression “good faith,” or tom lev as it is called in Hebrew, based on the above Biblical passage, forms a central part of various modern, Israeli laws. The most important of these is the Contracts (General Part) Law, 5733-1973, which states in two separate clauses:
12. “In negotiating a contract, a person shall act in customary manner and in good faith” (be’tom lev).”
39. “An obligation or right arising out of a contract shall be fulfilled or exercised in customary manner and in good faith” (be’tom lev).”
Indeed, the law even goes so far as to extend the duty to act in good faith “also to legal acts other than contracts and to obligations that do not arise out of a contract” (clause 61(a)). And the new draft Civil Code clearly states: “A person shall act in good faith in the use of any right, the execution of any legal act and the performance of any obligation.”
But what does “good faith” actually mean?
We can usually immediately tell when someone has not acted in good faith. Examples include where an insurance company agrees to insure a claimant under certain terms and conditions and later sends him a policy which contains different terms and conditions, which are written in small print, on the assumption that no regular individual will actually bother to read or check them; or where the insured person fails to disclose to the insurance company all the material points on the basis of which the insurer company agrees to insure him. After all, contracts are built on trust between the parties.
Bad Faith – Midat Sedom
“The men of Sedom were wicked and sinners before the Lord, exceedingly so” (Bereshit 13:13). But what exactly was the sin of the “Sodomites” (“Midat Sedom”)? According to the peshat, they were a selfish society with no social justice; they hated any and every act of righteousness and charity to others. In the Prophet Ezekiel’s words: “Behold, this was the sin of Sedom, your sister: She and her daughters [the surrounding cities] had pride, a surfeit of bread and peaceful serenity, but she did not strengthen the hand of the poor and the needy” (16:49).
However, Chazal understood “Midat Sedom” somewhat differently: as an abuse of legal rights and unethical conduct – the precise opposite of the attribute of tom lev. It is likely, teach Chazal, that a society which condones the abuse of an individual’s legal rights will eventually come to adopt invalid legal norms.
The Mishnah in Pirkei Avot (5:10) gives sharp expression to the egoistical conduct characterized by Sedom: “Someone who says: What is mine is mine and what is yours is yours – this is an average character type, but others say this is a characteristic of Sodom (Midat Sedom).” According to the first understanding, such a person is of average disposition – he is doing nothing wrong; he is not benefiting from anyone else’s property. However, according to the second approach, it is a bad trait, akin to that practised by the inhabitants of Sedom, for by preventing others benefiting from one’s own property, one thus avoids the need to show hospitality to the stranger, to the less fortunate, to the poor and to the needy in society.
“This party benefits, but the other party does not lose out”
According to Rav Ovadiah MiBartenura, the problem with the “what’s mine is mine, and what’s yours is yours” approach is that people who keep themselves to themselves become used to such conduct, and will not want others to benefit, even in a situation where they themselves do not lose out!
In an earlier article, I noted that one significant modern-day application of this principle in the State of Israel is the timing for tree trimming by the Jerusalem Municipality (the Iriyah) in preparation for the winter months when storms can cause damage to electricity lines. The Iriyah deliberately carries out the trimming on the days preceding the Sukkot holiday in the fall, thus concomitantly providing schach (thatch/roofing material) for the city’s residents to build their sukkot! This is a prime example of what the Talmud calls: ze nehene ve’ze lo chaser (one party benefits, but the other party does not lose out).
“The courts can enforce to prevent the vice of Sedom”
A person who behaves in an unjustifiably spiteful manner – someone who refuses to help his fellow human being even though he stands to lose nothing by it – may be compelled by the courts to do the right thing: kofin al midat sedom. It is clear that such enforcement is not aimed at the person’s property, but rather at his virtue, in an effort to set him on the proper moral path.
The Talmud, in Masechet Ketubot 103a, relates an incident in which a certain individual (“Reuven”) rented out a mill to his fellow (“Shimon”), in return for which it was agreed that Shimon would mill sufficient grain for Reuven’s household and be exempt from paying any cash rental to Reuven. In the course of time, Reuven grew wealthy and he was able to afford a mill and donkey of his own to provide for the needs of his household. No longer requiring his milling services, Reuven informed Shimon that he must now pay the rent in cash! Shimon refused – arguing that he was entitled to continue milling for Reuven rather than pay him a cash rental, as was originally agreed between them.
The Gemara concludes that Shimon can only continue milling for Reuven where Shimon does not have sufficient milling of his own for the full-time operation of the mill, in which case he is fully entitled to use the time he would otherwise sit idle at the mill to grind grain for Reuven. However, if he does have sufficient milling time for the full-time operation of the mill, even without Reuven’s milling, Shimon can be coerced to pay in cash [even though such payment was not provided for by the original contract], for in refusing he exhibits the wicked traits of the inhabitants of Sedom.
Next Column: When is a person entitled to insist on the literal fulfilment of a contract?
