Our Gemara on Amud Beis describes a nuanced halacha: though one may not make a condition that contradicts a Torah rule, financial stipulations are a matter of convention and can be reconfigured. However, even so, the language must not undermine or reject the Torah rule—it must simply add a clause, reduction, or increase. For example, overcharging is forbidden in a sale, but one may stipulate the sale on condition that “you have no claim of final exploitation against me.” The buyer then has no claim of exploitation, as it is as though he waives his right to money due him. But if the seller stipulates, “On the condition that there is no prohibition of exploitation in this transaction,” there remains a prohibition of exploitation in that transaction. The subtle difference is that in the latter case, the seller attempts to nullify the existence or validity of the prohibition.

Another example is that one may make a financial stipulation to cease or reduce the responsibility of a watchman or borrower, even if the Torah dictates standard rules of liability. Thus, though a borrower is exempt from liability if the lender joins him in the labor, even for a small activity such as bringing water (Bava Metzia 97a), the lender may pre-stipulate full liability on the borrower’s part.

Ohr Hachaim (Shemos 22:14) raises a question and offers a clever answer based on this rule. God has entrusted us as watchmen to safeguard our souls, and as Gemara Shabbos (152b) says, at the end of our lives, He will ask us to return them to Him in good condition. In other words, if we damage our souls with sin, we will be accountable. Ohr Hachaim asks: since God assists us in life in so many ways, shouldn’t we be able to exempt ourselves from responsibility for our souls by claiming that He, the lender, joined us in the labor? Ohr Hachaim answers that since one may make any stipulation, God already warned and stipulated that we would be fully liable to return the soul undamaged.

Ohr Hachaim offers a second, more theologically complex answer. He says the laws of human courts are designed to achieve general justice and societal order but can never fully adjust to a particular situation. This is why many financial halachos operate on two planes: one may be technically exempt in human court and not subject to legal enforcement, yet still be liable in heavenly court and have a moral obligation. Therefore, the exemption of the lender joining in the labor, along with other rules, might provide accountability and social fairness for the maximum benefit of the maximum number of people. However, God will judge the individual by absolute truth, and only He knows to what degree there is moral responsibility—and you will be accountable for that.

This is not all bad news. Human laws must rely on generalizations and therefore cannot fully capture each person’s subjective circumstances and liabilities. God, however, can determine not just how guilty one is, but also how innocent. Meaning, the punishments described in the Torah are not mandatory but rather maximums. It’s not that one will be punished by kares and early death—it’s that one might be liable to that degree. But God can also discern the nature of our intentions, our personal challenges, and other circumstances, so often the consequences are mitigated.

Translations Courtesy of Sefaria, except when, sometimes, I disagree with the translation

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Rabbi Simcha Feuerman, Rabbi Simcha Feuerman, LCSW-R, DHL is a psychotherapist who works with high conflict couples and families. He can be reached via email at simchafeuerman@gmail.com