An Exercise in Futility

However, in May 2022, a federal court in Alaska ruled that the controversial “Canadian Railway” transport arrangement used by American Seafoods Company did, in fact, violate the Jones Act. This is due to the fact that the fish does not actually make any forward progress in its journey. It is just an exercise in futility, as the fish ends up exactly where it started.

In Nedarim (24a), the Gemara discusses a case where Reuven utters a vow that Shimon may not derive any benefit from him, unless Shimon gives Reuven a sizeable present. The Sages rule that Reuven can annul this vow without the aid of hataras nedarim. Reuven can simply declare, “It is as if I received the present” even though he actually received nothing. The Ran explains the logic behind this ruling. Reuven wanted the present because he wanted to improve his own financial situation. When Reuven declares, “It is as if I received the present,” he in essence is declaring that his financial situation already improved. Therefore, the goal behind the vow was already accomplished, even though the exact stipulation was not.

The Rashba, though, offers a different rationale, although his exact position is the subject of much controversy. One simple explanation is that in matters of money or objects one can always say, “It is as if I received the money or object.” If Shimon would have indeed given Reuven the present, it is abundantly clear that Reuven may subsequently return it to Shimon. Therefore, explains the Rashba, what is the point of Shimon actually giving the present to Reuven, only to have Reuven give it back to him? It is an exercise in futility! Let Reuven just declare that it is as if he received the present and gave it back to Shimon. Reuven is in effect saying, “Let’s not, and say we did!”

The Prisha says that this Rashba is the source for a curious halacha of the Rema (695:4). The Rema rules that if one offers mishloach manos to his friend, but his friend declines to accept it, he has nevertheless fulfilled his obligation. The commentators struggle with this halacha. How can it be that he fulfilled his obligation of mishloach manos if he never actually gave anything?! The Prisha explains that it is clear that the recipient of mishloach manos may give his food package back to the giver. Therefore, what then is the point of an exercise in futility, to receive the mishloach manos, only to return it? Let them both stipulate that it is as if the sender gave the mishloach manos and the recipient returned it! The Rashba in Nedarim is thus the source for the Rema’s halacha.

However, the Mishna Berura notes that as a matter of practical halacha, the Pri Chadash and the Chasam Sofer do not accept this ruling of the Rema.

(Perhaps American Seafoods Company and the federal judge were having the same machlokes!)