One of the basic distinctions known to secular civil law is the distinction between promises and contracts. A contract must be honored, and failure to honor a contract can be penalized by law. A promise, however, does not fully bind a person, and breaking a promise draws no legal sanction.
In the present article we will discuss the halachic approach to this fundamental issue. As we will see, although halachah also makes a distinction between a fully binding transaction and a promise or non-binding agreement, Torah law urges a person to keep his word, and strives towards a society in which honesty and integrity are core values.
[Y. P.1] The idea of keeping a promise receives expression in one of Bilam’s blessings: “He took up his parable, and said: Arise, Balak, and hear; give ear unto me, son of Zippor. G-d is not a man, that He should lie; neither the son of man, that He should repent: when He has said, will He not do it? – or when He has spoken, will He not make it good? Behold, I am bidden to bless; and when He has blessed, I cannot call it back” (Bamidbar 23:18-20).
According to a number of commentaries, the meaning of the verse is that Hashem keeps His promises even under circumstances where it is possible (in a legal sense) to retract them. The Radak (Hoshea 11:9), for instance, explains that Hashem keeps His promises to the Avos, even when the sins of future generations justify retracting them.
To what degree do we have to keep our word or our promises? Is there a difference between a promise to children and a promise to adults? Under which circumstances is it proper to break a promise? These questions, among others, are discussed below.[Y. P.2]
Dealings in Good Faith
An obligation to conduct all of one’s dealings in good faith applies to each person. This duty is all the more incumbent in business dealings, where we must ensure that all our dealings are fair and just. The principle is mentioned by the Shulchan Aruch (Orach Chaim 156:1).
Although the question of proper conduct in business certainly includes absolute halachic obligations (such as the prohibition against stealing), it also encompasses norms whose source is not absolute Torah or rabbinic prohibitions, but rather ethical or moral considerations (as will be discussed below).
Chazal write (Shabbos 31a) that the first question that a person is asked upon entering the world of Truth is: “Did you deal in good faith?” Rav Chanoch Teitelbaum, among the leading rabbis of nineteenth century Galicia, explained why this question precedes the questions of being engaged in Torah study and in procreation (Shut Yad Chanoch no. 62):
“The first thing upon which a person stands in judgment is his obligation as a human being, obligations that a person must fulfill based on common sense, and that have applied since the day man was created in the world, as Rav Nissin Gaon has written. The first question is therefore, “Did you deal in good faith?” After this, a person is judged with regard to his obligations as a Jew, somebody whose fathers stood at Sinai – and with regard to this the first question concerns Torah study.”
The obligation to deal justly and fairly is thus paramount in the Jewish tradition. Indeed, the Midrash (Mechilta, Beshalach 1) writes, “Somebody who conducts his business affairs in good faith, and people are content with him – it is as though he has fulfilled the entire Torah.” As we will see below, Torah law includes special mechanisms that are aimed at ensuring that people deal honestly with one another. [Y. P.3]
Good Faith in Gifts
Specifically with regard to keeping promises, we find a discussion in the Gemara (Bava Metzia 49a) concerning somebody who promises his fellow a gift. Rabbi Yochanan is cited as stating that one who promises to give his fellow a gift is able to retract his promise, meaning that he is not monetarily responsible for the consequences of breaking his word. The Gemara proceeds to ask: “Is this not obvious?” – and therefore refines the citation from Rabbi Yochanan: “It is permitted to retract.” [Y. P.4]
However, Rav Papa explains (in the same Gemara) that this refers specifically to the promise of a large gift; for a small gift, the promise must be honored.
The reason for this distinction is the reaction of the prospective recipients. Whereas for a large gift the recipient naturally harbors doubts over whether he will receive the gift, and doesn’t take the promise for granted until he actually receives it, the intended beneficiary of a small gift immediately anticipates the fulfillment of the promise. Because the recipient has faith in the giver’s promise, the promise is a more complete transaction, and it is therefore obligatory to keep one’s word.
The Shulchan Aruch (Choshen Mishpat 204:8) rules in accordance with this distinction, explaining that the obligation to keep one’s word applies to the promise of a small gift.
The precise definition of which gift is considered small and which is large depends on the circumstances of the giver: For a poor individual a gift of $50 may be large, whereas for a millionaire a gift of $1,000 can be considered small.
Source of the Obligation
What is the source for the obligation to keep one’s word?
According to some authorities, the obligation to keep one’s word in the case of a small gift is a full Torah obligation, which is derived from Biblical instruction, “You shall have a just hin” (Vayikra 19:36).
Although the literal meaning of the verse is that one must use correct measures in commerce, the Gemara (Bava Metzia 49a) cites the explanation of a beraisa: “Your ‘yes’ (hein) shall be just, and your ‘no’ shall be just.”
However, other authorities write that the obligation of keeping one’s word is of rabbinic origin (see Ramban and Rosh; Sema 204:12; Tosafos Yom-Tov, end of Shevi’is), and the Torah prohibition applies to somebody who never meant to keep his word.
It is important to note in this context that even with a large gift, where there is no prohibition against retracting, it is forbidden to make a promise where the person has no original intention to keep his word.[Y. P.5]
Promises Without a Recipient
As noted, the obligation to honor one’s promises is a result of the recipient’s reliance upon the promise. Based on this, one may question whether the obligation can apply even to promises made not in the presence of the recipient: if he doesn’t know about the promise, he surely doesn’t rely on it!
In a similar sense, perhaps the obligation should not apply with regard to children, whose reliance is less than that of adults.
The Shulchan Aruch Ha-Rav (Laws of Sales 6) cites an explicit ruling of the Shulchan Aruch (Choshen Mishpat 243:1-2), that the law of keeping promises applies even to a promise made in the absence of the recipient.
Yet, he proceeds to question the rationale behind the ruling (Tziyunim 53), and a number of authorities rule that the obligation does not apply to such promises (see Peri Yitzchak Vol. 1, no. 51; Machaneh Efraim Ona’ah 28) – though many rule that it does (Minchas Pittim 243:2; Betzel Ha-Chochmah 5:160).[Y. P.6]
Promises Made to Children
Quoting from Mahari Algazi, Rav Meir Arik (Minchas Pittim, Choshen Mishpat 204:8) writes that the principle noted above concerning the absence of a recipient applies even to promises made to children: A child lacks daas, and his degree of reliance therefore does not obligate the keeping of promises to him or her.
A similar assertion is made by Rabbi Yosef Chaim Zonnenfeld (Salmas Chaim, Vol. 2, no. 79), who was asked why the Gemara cites a special prohibition of lying to children, for fear of training them to lie (Sukkah 46b). Surely, the regular obligation to keep promises ought to apply?
To this, he responded that: “It seems that the principle of a small gift applies to an adult, and not to a child.”
Yet, there is room to distinguish between the cognition required to perform legal transactions, and the level required for basic reliance. Although a ten-year-old cannot perform a Torah kinyan, it is possible that he nevertheless relies on his father’s promise no less than his thirteen-year-old brother.
Provided the child is older than three or so, one may argue that the prohibition will apply.
Under this assumption, the special prohibition on lying to children can be explained as referring to cases in which the obligation to honor a promise does not apply, such as a large gift, or a situation where there is no reliance on the part of the child.
This debate is particularly relevant for Afikoman promises (gifts promised in exchange for the stolen Afikoman). On account of the special occasion and the unique status of the Afikoman gift, one can assume that children indeed rely on the promise, and the gift should be duly given! [This is aside from the problem of lying to children.]
Keeping One’s Word in Transactions
When the promise in question refers to a sale, rather than a gift, the halachah is more stringent: Because the issue is a sale, it follows that there is no difference between a large and small amount. Even where no kinyan has been made, so that the parties involved can in principle go back on the deal, the Rambam (Mechira 7:8) and Shulchan Aruch (197:7) rule as follows:[Y. P.7]
“Somebody who conducts a business transaction in word alone – it is proper for him to keep his word, even though he did not take any money, and although nothing was written and no collateral exchanged. A buyer or seller who retracts, although he does not receive a curse [which is applied to somebody who backs out after money was exchanged] is considered lacking in faith, and the spirit of the wise is not at ease with him.”
The Rambam is careful with his wording, and stresses that “it is proper” for a person to keep his word, rather than speaking of an actual prohibition – though a number of other rishonim mention that it is forbidden to break one’s word. Nonetheless, the Rambam includes the halachah in his Laws of Sales: Honest dealing is part of the Torah business law.[Y. P.8]
In his Laws of Ethics (Hilchos De’os), the Rambam refers to Torah scholars, and is still more demanding: [Y. P.9]
“A Torah sage must conduct his business dealings with honesty and good faith. When his answer is ‘no’ he says ‘no,’ and when his answer is ‘yes’ he says ‘yes.’
He is stringent with himself in his accounting, gives and yields to others when he buys from them, but is not demanding [about what they owe him].
He pays for his purchases immediately … He accepts obligations in matters of buying and selling for which the Torah does not hold him liable, in order to uphold and not go back on his verbal commitments. If others have obligations to him by law, he grants them an extension and pardons them. He lends and bestows gifts.”
It is therefore certainly proper and just practice to ensure that one always keeps his word in business dealings (see also She’iltos, Vayechi). The Meiri (Bava Metzia 49a) extends this principle even to being faithful to obligations undertaken in one’s thoughts – though he stresses that this applies only to the most pious of the righteous: After having decided in thought to complete a transaction, they stick to their decision even though the other side is unaware of their decision. This of course is a very high level, and few reach it. Yet it remains an ideal of honesty and integrity that we can strive towards.[Y. P.10]
We conclude with the words of Rabbeinu Yonah:
“One who promises something to his fellow must keep his promise … for the other has relied on him, so that breaking the promise is a way of falsehood and is comparable to a person who has broken a covenant, as it is written: ‘The remnant of Israel shall not do wrong, and shall not speak falsehood, and no trickery shall be upon their mouths’ (Tzefaniah 3:13).”
May we walk the ways of the just, and deal faithfully always.