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In the United States (and other countries), there is the notion of the freedom to contract. This is the idea that two people of sound mind have the right to enter into any contract with one another that they wish. The law honors this idea, but places limits on it. For example, unconscionable contracts and certain other contracts that violate public-policy ideals are unenforceable; for practical purposes, such contracts are invalid, as if never entered into. (IANAL.)

I'm wondering about the existence of a freedom-to-contract notion in Jewish law. Specifically:

  • Is there a statement of chazal or another authority that, in general, people have the freedom to contract?
  • If so, what's the earliest authority to say so? What major authorities have said so? Citations, please.

(The reason I mention, above, the limits on the freedom to contract is to clarify that I'm not asking whether Jewish law recognizes an absolute freedom to contract, one without limits. I know that that's not the case: the rule of onaa is a counterexample, and commenters on this question have listed more, like the prohibition against gambling. I'm asking, rather, about the notion of the freedom to contract, however limited it may be in practice.)

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The rule of מתנה על מה שכתוב בתורה could be relevant. – Double AA Apr 26 '13 at 19:01
There are certain rules which suggest limits to this idea, which might suggest that, at least, this idea exists. One that comes to mind is the prohibition against gambling, despite the fact that the losing gambler put up his money willingly. Halachah generally assumes that it wasn't really parted with willingly, since the losing gambler thought he would win, which makes the winner a thief. – Seth J Apr 26 '13 at 19:21
Somewhat related: judaism.stackexchange.com/q/15915/5 – Seth J Apr 26 '13 at 19:22
Re: your edit, I got what you were going for the first time; my comment above is to suggest, though I cannot substantiate it (hence, not an answer), that the existence of certain restrictions on the freedom to contract implies a general freedom to contract. – Seth J Apr 30 '13 at 18:41
Google found me this fascinating-looking paper that, I think, addresses your question pretty directly. At a glance, it seems that the answer is something like "no, Halacha recognizes transactions, not contracts," but it's certainly more nuanced than that. As I'm not very strong on legal terminology and concepts, it'd take me at least an hour of careful reading to comprehend the paper well enough to give a confident answer, which I may yet do, but others are welcome to pre-empt. – Isaac Moses May 3 '13 at 15:03
up vote 3 down vote accepted

The concept of "freedom of contract" certainly exists in Jewish Law (with limitations, as you mentioned). The Rambam formulated this concept as follows: "כל תנאי שבממון קיים". He mentions it in numerous places: הלכות אישות, פרק ו, הלכה י, ופרק טז, הלכה ח; הלכות שמיטה ויובל, פרק ט, הלכה י; הלכות מכירה, פרק יג, הלכה ג, ופרק יט, הלכה ח; הלכות שלוחין ושותפין, פרק ב, הלכה ג, ופרק ד, הלכה ג; הלכות מלוה ולוה, פרק יג, הלכה ה, ופרק טו, הלכה ז, ופרק יח, הלכה ב He mentions it in regards to various kinds of contracts, some which run counter to the standard Torah law, and some which give one side to the contract an extreme advantage over the other side to the contract.

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