MEḤILAH

MEḤILAH (Heb. מְחִילָה; "waiver"), the renunciation, repudiation, abandonment, or surrender of some claim, right, or privilege. Meḥilah may be the waiver of a present right or *lien or the waiver of the right to a future increment; in the latter case, it is usually referred to as silluk (tj, Ket. 9:1, 32d; Ket. 83a).

Range of Applicability

Meḥilah cancels any debt, lien, or *obligation regardless of origin. Thus, debts arising out of *loans, *sale, *leasing and hiring, *labor, *partnership, and *surety; liens on *property put up as collateral; obligations originating in *contract or *tort – all are effectively cancelled by meḥilah on the part of the creditor. Nor is the effectiveness of meḥilah curtailed by the form of the obligation; it applies with equal vigor whether the obligation is an oral or written one, whether it is attested to by witnesses or not (Gulak, Yesodei, 2 (1922), 111–4, 162f.).

Silluk, i.e., the waiving of future accretions, however, is only of limited effectiveness. This is due to the general reluctance of Jewish law to grant effective control over things that have as yet not come into existence (davar she-lo ba la-olam; see *Contract). Thus, if, on the one hand, a person possesses a present right, claim, or lien, silluk cannot dissolve it; only meḥilah can do so. If, on the other hand, the future right, claim, or lien is so remote as to have no specific relationship to this particular person, his silluk is equally ineffective since it pertains to davar she-lo ba la-olam. However, if the future right, claim, or lien, although not in existence, has by the operation of circumstances at least achieved a likelihood of accruing to a specific person, then his silluk is effective. Thus, the ability of a man to waive the rights of usufruct in his wife's property depends upon the status of his relationship with her; if he has already married her (nissu'in), his claim on her usufruct is a present one; hence his waiver must be in the form of meḥilah, and his silluk is no longer effective. If he has not entered into the first stage of *marriage (erusin), the usufruct in her property has as yet not come into existence (it is a davar she-lo ba la-olam); hence it is sufficiently remote as to vitiate the effectiveness of either form of waiver, that of meḥilah and that of silluk. If, however, he has entered into the first stage of marriage (erusin) but has not yet consummated the marriage (nissu'in), the right of usufruct, although not yet in existence, has achieved sufficient likelihood of accruing to him as to have endowed him with the power, not of meḥilah, but of silluk (Ket. 83a–84a, and codes).

The effectiveness of silluk with regard to obligations (i.e., rabbinic origin; see *Mishpat Ivri) that have as yet not come into existence is undisputed among the early authorities (*rishonim; see *Authority, Rabbinical). Its effectiveness with regard to obligations which are mi-de-oraita (i.e., biblical origin; see *Mishpat Ivri) that have as yet not come into existence presented these scholars with two major difficulties:

(1) it is an established rule of law that conditions contrary to biblical law are void (bm 7:11).

(2) The Talmud rules that biblical rights of succession, which are mi-de-oraita, such as those of a son to inherit his father's estate (in contradistinction to the right of a husband to inherit his wife, which is mi-de-rabbanan), cannot be waived (cf. Ket. 83a). The first difficulty was overcome by the limitation of the rule to non-monetary conditions on the one hand, and by the limitation of the power of waiver to monetary obligations on the other. The second limitation was overcome by construing mi-de-oraita rights of inheritance as being unique in that they inhere in the heirs even before the death of the owner of the estate; hence silluk, as the waiver of future rights, is impossible (Keẓot ha-Ḥoshen 209 n. 11).

Waiver is limited to rights; it is ineffective as a mode of transfer of real property or of chattel (Rema, ḤM 241:2).

Legal Analysis

It has been pointed out that in the realm of rights, where it is effective, waiver does not constitute a transfer; rather it is mere withdrawal. A creditor who waives his claim does not transfer his right to the debtor and thereby extinguish the claim; on the contrary, he withdraws his right or removes his lien from the debtor and his estate. The effectiveness of meḥilah, therefore, is independent of the wishes of the debtor. Thus, if a creditor waives the debt due to him and the debtor refuses to avail himself of the waiver, the waiver nevertheless takes effect. Had meḥilah been viewed as a kind of transfer, it would have failed to take effect inasmuch as the debtor, as transferee, had declined (cf. Herzog, Instit, 2 (1939), 229). The juridical basis of waiver is the insistence of the law that the obligatory nature of monetary obligations is always dependent upon the will of the party to whom the obligation is due; the suspension of this will, e.g., by waiver, automatically extinguishes the obligation (Maimonides, nov., bb 126b).

Formal Requirements

meḥilah requires no formal mode (meḥilah einah ẓerikhah kinyan; Yad, Mekhirah 5:11 and Ishut 17:19; Tosef to Sanh. 6a, s.v.ẓerikhah). It is effective by parole alone. Some authorities, however, do require a formal kinyan to validate the waiver of a creditor who retains possession of the debtor's promissory note (cf. commentaries to Sh. Ar., Ḥm 12:8; see also *Acquisition). There is no formal requirement that witnesses validate a waiver of indebtedness. The function of witnesses is evidentiary, preventing the creditor from subsequently denying his act of waiver or from alleging that the act was made in jest. For this purpose, the witnesses need not have been formally appointed; their mere presence suffices (Sh. Ar., Ḥm 81:29).

Implied Waiver

Waiver may be express or implied. Thus, the mere declaration of the creditor that the debtor owes him nothing absolves the latter of all obligation; for although he knows that the creditor's statement is incorrect, it is nevertheless construed as an implied waiver (Sh. Ar., Ḥm 75:11; Rema, Ḥm 40:1; but cf. Siftei Kohen, Ḥm 81, n. 72). Asher Gulak has pointed out the similarity between this waiver implied in the creditor's denial of the debtor's indebtedness with the acceptilatio in Roman law. This was an oral form of dissolving obligations by having the debtor ask the creditor, "What I have promised you, have you received it (habesne acceptum)?" and the creditor answering, "I have (habeo)." The effectiveness of the Roman acceptilatio was limited, however, to the dissolution of obligations created by verbal contracts (verbis); it was ineffective in dissolving obligations created by real (re) and written (litteris) contracts. This limitation does not exist in Jewish law where the creditor's declaration of receipt of payment dissolves all obligations, regardless of origin (cf. Gulak, Yesodei, 2 (1922), 112f.). Implied waiver serves as the operational rationale of a number of legal rules. Thus, the rule that monetary conditions contrary to law are valid is justified on the grounds that the parties entering into the agreement governed by said conditions have implicitly waived their (monetary) rights (Rashi, Kid. 19b; see also *Contract). Similarly, the rule that overreaching (*ona'ah) that involves less than one-sixth of the fair price need not be returned to the injured party is explained on the basis of an implied waiver on the part of the latter (Yad, Mekhirah 12:3; cf. Sma., Ḥm 227 n. 2). Again, the lapse of the right of a widow who no longer lives on her husband's estate to collect her ketubbah after 25 years, in localities where written ketubbot are not used, is based upon implied waiver (Ket. 104a; Yad, Ishut 16:23; see also *Limitation of Actions).

Legal Rules Limiting its Effectiveness

Some of the legal rules governing waiver may be summarized as follows:

(1) The power of waiver applies to claims estimable in money (manona ityaḥiv li-meḥilah); it is thus inapplicable to modes of effectuating marriage and divorce (Kid. 7a; Git. 64a).

(2) Waiver need not be made in the presence of the debtor, but the debt does not lapse until the waiver has come to his knowledge (Arukh ha-Shulḥan, Ḥm 241:4; but cf. Herzog, Instit, 2 (1939), 231f.).

(3) If co-debtors are named in one promissory note and the creditor waives the obligation of one of them, the other's obligation remains intact and is actionable (opinion of Sh. Ar., Ḥm 77:6; disputed by *Rema, ad loc.). If the debtors are correal, however, i.e., where each is bound severally to discharge the entire liability, the creditor's waiver of the obligation to one of them cancels the liability of all (ibid.).

(4) A waiver of the lien on an obligation, retaining, however, the obligation itself, must be accomplished by a kinyan in order to be effective (Derishah, Ḥm 111, n. 10).

(5) A creditor may effectively waive part of the obligation, or he may postpone the date of payment by waiving the time stipulated in the *shetar (Sh. Ar., Ḥm 66:24, and Siftei Kohen, ibid., n. 83).

(6) A waiver, in order to be effective, must be related to an object that is definite or to a quantity that is fixed; obligations that are vague, limitless, or unknown are unaffected by meḥilah (Yad, Mekhirah 13:3; Sh. Ar., Ḥm 232:7).

(7) Waiver is ineffective if made through error (see *Mistake; Tos. to bm 66b, s.v.ḥatam; cf. Herzog, Instit, 2 (1939), 299); if made under duress (see *Ones, Tos. to bb 48a, s.v.amar); if made in jest (Yad, Mekhirah 5:13 and Ishut 17:19); and if made by minors and, presumably, by *deaf-mutes and mentally incompetents (bm 22b).

(8) The effectiveness of meḥilah is disputed in cases where the creditor retains possession of the debtor's promissory note or his *pledge, some authorities requiring a formal kinyan to supplement the waiver by parole (Sh. Ar., Ḥm 12:8; 241:2; and commentaries).

bibliography:

I.S. Zuri, Mishpat ha-Talmud, 5 (1921), 25; Gulak, Yesodei, 1 (1922), 159; 2 (1922), 111–4, 162f.; Herzog, Instit, 2 (1939), 115, 132ff., 229–33, 299f.; Elon, Mafte'ah, 123–9.

[Aaron Kirschenbaum]