Judaism and American Law - Part 8

The fourth portion of the Torah that we will consider provides the foundational concept for contract law which is promise, or in the language of the Bible, covenant and vow. In American law, a contract is defined – in the words of my venerable contracts professor at Saint Louis University School of Law, Vincent Immel – as “a promise or a set of promises for the performance of which the law imposes a duty and for the breach of which the law provides a remedy.” Thus, contract arises from promise, and promise is the essential core of covenant in Torah.

God reveals Himself as the promise keeping God. Through the words of Balaam, the would-be prophet of Balak, He declared:

God is not man to be capricious, or mortal to change His mind. Would He speak and not act, Promise and not fulfill? (Numbers 23:19)

Covenant is one of the most prominent features of Torah. It expressed the relationship that God creates with His people. While we might explore numerous passages detailing the nature and scope of covenant, for the purposes of this series, I would like to examine an aspect of promise or vow in Torah that might be easily overlooked.

One essential component of a promise that the law will recognize as a contact is “capacity”, that is, the one who makes the promise must have the legal capacity to enter into the contract. This is most readily apparent when the law imposes a minimum age requirement for the person seeking to enter into a contractual relationship.

An un-emancipated minor does not have the legal capacity to make a promise that will be enforced by the law as a contract. This idea of “capacity to contract” appears in seminal form is Number 30:4-6, as follows:

If a woman makes a vow to the Lord or assumes an obligation while still in her father’s household by reason of her youth, and her father learns of her vow or her self-imposed obligation and offers no objection, all her vows shall stand and every self-imposed obligation shall stand. But if her father restrains her on the day he finds out, none of her vows or self-imposed obligations shall stand; and the Lord will forgive her, since her father restrained her.

Here the youth is un-emancipated since she is still within her father’s household. The passage thus appears to indicate that both her age and her un-emancipated state render her legally incapable of making a promise that will be regarded as an obligatory vow unless her father gives his express or tacit consent.