Can someone create a monetary obligation for an unspecified amount? Maimonides addresses this question towards the end of chapter eleven of Hilchot Mechirah (halacha 16):

The following rules apply when a person accepts an obligation on himself that is unlimited in nature. For example, he says: "I obligate myself to feed you..." or "...to clothe you for five years." Even though he affirms his commitment to the recipient with a kinyan,1 [thereby finalizing a transaction], he is not liable. For this resembles a present, and yet there is no specific and known entity that is being given as a present. My masters ruled in this manner.2

According to Maimonides, an individual cannot create an undefined debt (dovar shein lo kitzvah). Since the cost of fulfilling this responsibility is not in the person’s control, we do not consider it to be a bona fide commitment.3

In this article, we will consider two apparent inconsistencies with this ruling of Maimonides. The first comes from the Talmud, and the second comes from elsewhere in Maimonides’ own legal code.

The Difficulty Posed by the Raavad

Rabbi Abraham Ben David, the Raavad, raises the first issue we will discuss. He cites a section of the Talmud that seems to be at odds with Maimonides’ premise that one cannot obligate oneself for an undefined amount. He ends with a cryptic note, “When one ponders intensely, all [will be revealed] in one direction.”4

His objection is based on the Talmud in Tractate Ketubot5 which records a disagreement between Rav Yochanan and Reish Lakish regarding the following case: If someone says to his fellow, “I am obligated to pay you [the sum of] a maneh,”6 according to Rav Yochanan the obligation is binding; according to Reish Lakish, however, this statement does not create any obligation.

This disagreement is qualified by the Talmud as referring to a case of a document that was written as, “I owe so and so x amount,” (i.e., I owe a specific person a specified amount), but the document was not subsequently signed.7 The concern is whether an unsigned and unverified document upon which the obligation was recorded is legally binding. According to Reish Lakish, there is no obligation to pay as a document without a signature is worthless. Rav Yochanan believes otherwise; one is obligated to pay.

A challenge to the position of Reish Lakish is then raised based on the Mishnah that immediately precedes this section of Talmud:

If one marries8 a woman and she stipulates with him that he will feed her daughter [from a previous marriage] for five years, he must feed here for those five years.

Now this, the Talmud asserts, presents a challenge to the view of Reish Lakish that an unsigned undertaking of debt is not binding: “Is [the Mishnah] not referring to a case such as this?9 Namely, one in which the husband offers an unsigned commitment, and yet, the Mishnah rules that the husband must honor this commitment. If indeed the Mishnah is referring to a case of an unsigned document it would constitute a decisive refutation of Reish Lakish’s position, as he believes that an unsigned document is not binding.

The Talmud rejects this explanation of the Mishnah by explaining that the Mishnah is dealing with an entirely different case, known as “documents of stipulation" (shetari pesikisa), which is a type of transaction unique to betrothal (understood here to refer to the first stage of marriage, known as kiddushin or erusin.)10 The two parties (the families of the bride and groom) reach a verbal agreement regarding financial responsibilities for the forthcoming marriage. This agreement is then recorded in a document known as a “document of stipulation.” Even though no formal transaction is enacted, the agreement is still binding on all parties. This Mishnah, therefore, poses no difficulty for Reish Lakish as it is dealing with a different case entirely.

Now, what is important here is that the Talmud only raised the possibility that this Mishnah stands in contradiction to the opinion of Reish Lakish, but not to that of Rav Yochanan. However, Rav Yochanon seems to say that an unsigned obligation is only binding in a case where the amount is specified, e.g. “I am obligated to pay you [the sum of] a maneh.” This position could also be challenged based on the above Mishnah, according to which case the full cost of the obligation remains unspecified, and the agreement by the husband to feed his wife’s daughter for five years is ruled to be binding.11 Yet the Talmud only uses this Mishnah to challenge the view of Reish Lakish.

On these grounds the Raavad concludes that the Talmud believes that in the case of the Mishnah,Rav Yochanan would agree that it would be binding, even though he only articulated a limited obligation. Accordingly, this section of Talmud seems to stand in direct contradiction to the view of Maimonides, who rules that an unspecified debt is not considered a bona fide commitment.

Additionally, when the Talmud asserts that the Mishnah is referring to “documents of stipulation” and not the case of an unsigned document, this seems to only apply to Reish Lakish. Since he believes that one cannot create such an obligation, he is forced to interpret the Mishnah as referring to “documents of stipulation.” According to Rav Yochanan, however, the Mishnah is still referring to the case of one who wrote an unsigned document, rather than the special case of “documents of stipulation” on the occasion of a betrothal. And since the example given in the Mishnah is unspecified, this would mean that, even in ordinary cases, one should be able to create an obligation based on unspecified terms.

This conclusion is problematic for Maimonides (who rules that one cannot create an unspecified obligation) because the final law clearly follows Rav Yochanan. In fact, the halacha immediately preceding the one quoted above12 is actually based on the opinion of Rav Yochanan, so it is clear that Maimonides ruled in accordance with Rav Yochanan. So how can Maimonides, in the very next paragraph, contradict this position by writing that one may not create an undefined obligation?!

The Maggid Mishnah (Rabbi Vidal of Tolosa, who lived in Spain in the 14th century) offers a resolution, which would allow us to reconcile the view of Maimonides with that of Rav Yochanan. He argues that, in truth, this Mishnah would also pose a difficulty to the position of Rav Yochanan. (Namely, that it seems to imply that a person may create an obligation that is undefined, by stating that a person who agrees to feed his stepdaughter for five years must do so, whereas Rav Yochanan seems to imply that only a limited obligation is binding.) The Talmud could well have asked this question on Rav Yochanan. The Talmud would have made the same differentiation it made for Reish Lakish: In the Mishnah, the reason why an unquantifiable obligation can be established is because it refers to a betrothal when “documents of stipulation” are used. The fact that the Talmud does not fully articulate this is not sufficient grounds to conclude that the Talmud actually believes that Rav Yochanan’s ruling should be understood to apply in ordinary cases of monetary obligation.

The Maggid Mishnah explains that there are many examples in the Talmud where a difficulty could be posed against two opposing positions. After querying one position, the Talmud will not always continue to query the second position. This, however, does not mean that one who holds a position that went unquestioned would not accede to a resolution that was provided (if applicable).13

So it turns out that according to the Maggid Mishnah, both Rav Yochanan and Reish Lakish agree that one cannot generally create an unquantifiable obligation, and would both be committed to confining the Mishnah to its exceptional context of betrothal. Only in the case of “documents of stipulation,” are such unspecified debts legally binding. This interpretation of the Mishnah being common to both Rav Yochanan as well as Reish Lakish is at least consistent with Maimonides’ ruling that outside of the exceptional case of betrothal discussed in the Mishnah, a person cannot create such a binding obligation.

An Apparent Contradiction

Rabbi Joseph Karo, author of the Shulchan Aruch (Code of Jewish Law), and also known by the name of his commentary on Mishnah Torah, Kesef Mishnah,points to an additional issue with this section of Maimonides. The very next halacha seems to be at odds with something that Maimonides had written earlier in Hilchot Ishut (Laws of Marriage).

First, let us establish what he writes here in Hilchot Mechira, halacha 17, as follows:

If so [that a person is unable to create an undefined obligation], why is a person who makes a commitment to his wife to provide food for her daughter from a previous marriage obligated to provide for her? Because he made this commitment at the time of their marriage. And the matter resembles entities that are acquired although only a verbal commitment is made.

This halacha, (based on the Mishnah quoted above), states that as long as the commitment takes place “at the time of their marriage,” it is valid. So far this seems to be in line with what we established above, that it refers to “documents of stipulation,” which enact undefined obligations within the context of marriage.14

In the Book of Marriage (Hilchot Ishut), where Maimonides lists the exact same law, he is a little more specific:

When a man marries a woman and makes a commitment to support her daughter for [an explicit number of] years, he is obligated to support her for [all] the years to which he committed himself, provided he made this commitment at the time of the woman's consecration. If, however, he made the commitment [after] the consecration [kiddushin or betrothal were given], the commitment is not binding until he affirms it with an act of contract or composes a document to that effect.

The Kesef Mishnah quotes the Sefer ha-Terumot (authored by Rabbi Shmuel ben Yitzchak Ha-Sardi, a Spanish scholar of the 13th century) who poses the following question: From Hilchot Ishut, it seems clear that if an undefined obligation occurs outside of the process of consecration (kiddushin) then a person could indeed create an obligation for something which does not have a precise scope, provided it is accompanied by a valid act of transaction. However, in the laws of selling (Hilchot Mechira, halacha 15), with which we opened this article, Maimonides writes: “Even though he affirms his commitment to the recipient with a kinyan, thereby finalizing an acquisition, he is not liable.”15 How do these two statements work together!? Do they not contradict each other?

In order to resolve this conundrum, the Kesef Mishnah points out a key difference between these two sources. In Mechirah, Maimonides uses the term marriage (nissuin, which refers to the second and final stage of marriage), implying that this unique type of transaction can be carried out even at this late stage. Whereas in Hilchot Ishut, he explicitly states that this transaction is only valid before the first stage of marriage—the consecration, (known in Hebrew as erusin or kiddushin) has been completed.16

This leads Rabbi Joseph Karo, the Kesef Mishnah, to conclude that there are in fact three categories:

Category one: Before the first stage of marriage which is consecration (kiddushin). At this stage no actual form of acquisition is necessary; a verbal agreement alone (generally transcribed in “documents of stipulation”) is sufficient to obligate oneself for an undefined amount.

Category two: After the act of kiddushin, but before the final stage of marriage (nissuin): At this stage a person does still have the ability to obligate himself for an undefined amount, but only if a formal act of transaction is carried out which finalizes the agreement. A mere verbal agreement, transcribed in “documents of stipulation” is not sufficient.

Category three: Any other time, not in the context of a marriage: Even with a formal act of acquisition, an individual is unable to obligate himself for an undefined amount.

This resolves the apparent contradiction. When Maimonides (in Ishut) writes that if—after the kiddushin—the husband affirms his obligation with a contractual act then the transaction is binding, he is being very specific; only in this case would such a transaction be valid. Outside the context of marriage, a person is unable to obligate himself for an undefined amount, as is clear from the text in Mechirah (the Laws of Selling). However, this still differs from a case of “documents of stipulation,” which takes place before kiddushin and would not need any formal act of contract.

Additionally, in support of this hypothesis is a further point. The language of Maimonides in Mechirah implies—as we have established—that nissuin (the second stage of marriage) is not an exact parallel to the case of kiddushin (the initial stage of marriage), where “documents of stipulation” alone would be sufficient. He describes the transaction that takes place after kiddushin as “resembling” the case of “documents of stipulation,” which implies that he is relating two distinct cases to one another. This is because, in line with the Kesef Mishnah’s analysis, there is a distinction to be drawn between before and after the kiddushin has taken place. Before the kiddushin takes place “documents of stipulation” alone suffice, whereas after kiddushin an actual act of acquisition must take place. The reason why even after kiddushin one may obligate oneself for an unquantifiable amount, though generally one cannot do so, is because it is “resembling” the case of kiddushin since it is still in the context of marriage.17

Does Anyone Agree with the Position of Maimonides?

It would seem that almost all halachic authorities disagree with Maimonides’ position. To quote the Shulchan Aruch, “One who obligates oneself for an undefined amount… according to Maimonides one is not obligated. [However,] all [authorities] who come after him disagree, and [they say that] one would be obligated, and this is what we take on.”18

So, practically it would seem that although Maimonides would invalidate an unspecified obligation as something that is undefined, the law, as codified by the Shulchan Aruch, is that it would indeed be valid. Due to the complexities surrounding the exact status of a check in halacha, whether or not a literal “blank check” would fall into this category remains an open question.19