Question:

What Halachic obligations are created by the formalization of a transaction with a handshake, and when is a handshake considered an oath?

Answer:

1. A. There are actually three different types of handshakes, and each has different Halachic ramifications:

   1. A handshake to formalize an acquisition (Kinyan) and transfer ownership from one party to another, in industries and societies where this is customarily done. For example, in the diamond industry a handshake is commonly used to effect a Kinyan.

   2. A handshake can be used as an oath to obligate one’s self to do something that he is committing himself to. This may be done between two parties, but may also be used to obligate one’s self to do something not related to the person that he is shaking hands with.

   3. A handshake to consummate an agreement with a friend, which obligates both of them to perform certain future commitments that they have made to one another.

2. B. Anytime a handshake is customarily used as an act of acquisition in a sale, once it has been done, both parties are bound by the terms of the sale that they have agreed upon, and neither side is permitted to back out.

   However, since this is an acquisition and not an oath, if one party were to improperly back out, it would not be necessary to have a “Hattaras Shavua”- release from an oath performed by a Bais Din. (1)

3. C. If one of the parties said to the others, “Let’s shake hands that we will stick to the terms of our agreement”, and they did so, their handshake qualifies as an oath, even if no formal Kinyan was done. However, if after agreeing on terms, they shook hands without stipulating anything, this would be an act of Kinyan rather than an oath (in societies where Kinyan is done in this manner). (2)
4. D. A person who raises his hand and says “I shake hands with Heaven (or G-d) that I will do such-and-such”, this is an oath. As a matter of fact, even if he would not actually raise his hand but would use this terminology, it would be an oath. (3)
5. E. If a person declares that he will not eat a certain food item, or do or not do something, and “shakes on it” with his friend, it is considered an oath.

   However. if he says that he will only do so if his friend agrees, and the friend does not, this oath is null and void, and no Hataras Shavua is necessary.

   If the person making the oath does so and stipulates at the time of the handshake that only his friend can release him from the oath- his friend may not do so. Only a qualified Bais Din may release him, and the friend need not serve as one of the judges on the panel. (4)

6. F. Although a Bais Din will generally be less inclined to release a person from an oath unless there are extenuating circumstances, as opposed to a vow which they will release a person from for almost any reason, if they did release a person from such an oath (which came about via a handshake) for non-extenuating reasons, the release is effective. (5)
7. G. A handshake made to consummate an agreement with another party is even more Chamor (grave) than an oath, and a Bais Din may only release a person from such an agreement in the following situation.

   1. If there will be a serious financial loss to one of the parties if he is bound to the agreement.

   2. If the Bais Din is convinced that one of the parties will be totally unable to abide by what he has committed himself to.

   3. If there is a good chance that one of the parties will be forced to transgress laws of the Torah if he is not released from the agreement.

   If one of the above conditions is not present, and Bais Din releases one of the parties from such an agreement, the release is not effective, and the covenant between the two parties remains intact.

8. H. A handshake to consummate an agreement is only effective if the handshake occurred between the two parties directly involved in the agreement. Therefore, if Reuven and Shimon shook hands on an agreement between Reuven and Levi, the agreement does not take effect. However, if Reuven would want to back out he should have a Hattaras Shavua done in Bais Din, since his actions would constitute an oath on his part.
9. I. Examples of a handshake that would consummate an agreement between two parties would be if two people make an agreement to be partners in a business or some aspect of it, or that one will not open a competing business with the other. Also, a handshake on an agreement to live in a certain area, or that one will work for the other, consummates their commitment to each other.

   If a bride and groom make a commitment to get married, only a handshake between the two of them would create a binding covenant between them to actually do so. (Although this would be forbidden because they may not have physical contact before marriage, if they did so it is effective). However, if the groom shakes with the bride’s father, or the bride shakes with the groom’s mother regarding a commitment to marry or to abide by some financial arrangement between the bride and groom, it would not be considered as if a covenant had been made. Even in this case, if one of the parties would wish to reverse themselves they should seek Hattaras Shavua before a competent Bais Din, as we stated above.

Sources:

1) This is stated in the Shulchan Oruch, Choshen Mishpat 201:2, the SM”A there (5), and in Yoreh De’ah (239:2).

(2) This is stated in the Teshuvos Shvus Yaakov (Vol. 3 Ch. 152), and is also quoted by Rabbi Akiva Eiger (Yoreh De’ah 239:2).

(3) Rema in Yorah De’ah (239:2).

(4) Rema there, and in the Shulchan Oruch Yoreh De’ah (228:37 – and in the Shach and Nekudas HaKessef there (98). See also the Shulchan Oruch, Rema, and Shach in Yoreh De’ah 231:1.

(5) Shulchan Oruch and Rema in Yoreh De’ah 239:2, and the Biur HaGr”a there (7). See the Shulchan Oruch and Rema in Yoreh De’ah 228:20 for a discussion as to when must a Bais Din first receive permission from the other party in the handshake before releasing the oath, and when permission is not needed, they merely must inform the other party after the release.

See the Tur and Bais Yosef in Yoreh De’ah (230), the Rema there (203:3), and the Shach there (3) that state that there are some opinions never to release a person from an oath, since the Torah says regarding oaths (Shemos 20:7) “Lo Yinakeh” – G-d will not absolve those who swear in vain. Therefore, those that do preside over such releases may only do so in cases of absolute necessity, or for the sake of a Mitzvah.

Feedback is appreciated! It can be sent to[email protected].

This week’s class is based on a column by Rabbi Tzvi Shpitz, who is an Av Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His Column originally appears in Hebrew in Toda’ah, a weekly publication in Jerusalem. It has been translated and reprinted here with his permission and approval.

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Please Note: The purpose of this column is to make people aware of Choshen Mishpat situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the presence of all parties involved!