Our parasha describes how Moshe directed the Jewish people for its historic encounter with Hashem at Mount Sinai: “Moses led the people out of the camp toward God, and they took their places at the foot of the mountain.” (Shemos 19:17) The Hebrew expression can also mean “underneath the mountain.” One interpretation we find in Chazal is that Hashem raised the mountain over their heads and threatened them. (Shabbos 88a)

Rabbi Avdimi bar Ḥama bar Ḥasa said: The verse teaches that the Holy One, Blessed be He, overturned the mountain above the Jews like a tub and said to them: If you accept the Torah, excellent, and if not, there will be your burial. Rav Acḥa bar Yaakov said: From here there is a substantial caveat – a modaah – to the obligation to fulfill the Torah. Rava said: Even so, they again accepted it willingly in the time of Ahasuerus, as it is written: “The Jews ordained, and took upon them, and upon their seed, and upon all such as joined themselves unto them” (Esther 9:27), and he taught: The Jews ordained what they had already taken upon themselves through coercion at Sinai.

Rav Acha bar Yaakov makes reference to a modaah – a legal document that empowers a person to withdraw from a deal due to some compulsion described in the modaah document. The need for this modaah in order to withdraw from a deal shows clearly that the Torah doctrine of duress is different from that of secular law. In secular law, a deal made under duress is typically not binding; a forced agreement is no agreement at all. In Torah law, duress does not automatically nullify an agreement. An agreement to sell under duress, if payment is given, is considered one kind of informed consent. The Talmudic expression (Bava Batra 47b) is “[even if] they hang him and he sells, his sale is a [valid] sale.”

This approach to compulsion is not restricted to a simple sale. The Shulchan Aruch (CM 205:2) rules that a compromise made under compulsion is likewise valid, since each side waives some claims and such a waiver is considered a kind of recompense. In general, the poskim agree that a deal is valid “even if they hang him” applies in any kind of deal where recompense is given.

This principle is still applied in beit din judgments. In recent cases, partners claimed that they were compelled to sell their partnership shares and sought to reacquire these shares. But the dayanim pointed out that even if compulsion could be demonstrated, the sale cannot be nullified because recompense was given. (Piskei Din Rabaniim XIV:143; Piskei Din Yerushalaim Mamonot veYuchsin, 133)

However, halacha does empower the compelled party subsequently to nullify the agreement if he prepares in advance a modaah – notification – explaining the details of the compulsion and expressing the intention of nullifying the agreement as a result. (SA CM 205)

It is easy to see both the fairness and the complications of this option. Secular law attributes immense importance to finality of a judgment, or res judicata. Jewish law is less obsessed with finality. It gives greater scope to retry cases and generally eschews statutes of limitations. But it does acknowledge the importance of trying to reach some settled state of legal rights. The ability of one side to pull a modaah out of its sleeve years after a deal is made injects much uncertainty into business dealings. Hence, modaah is little used nowadays, and its main impact on contemporary Jewish law is that agreements often open with explicit abrogation of any existing modaah by each party.

If we turn from halacha to hashkafa, misunderstanding of this fundamental difference between the Torah and secular law approach to duress also leads to a widespread misunderstanding of Chazal’s message. Under the secular law understanding of duress, Hashem’s threat detracts from the extent of Am Yisrael’s commitment to the Torah. The covenant was made with compulsion and hence is not fully binding. 

According to the Torah understanding, the threat augments the extent of our commitment to Torah. Until the time of Mordechai and Esther, the Jewish people had the ability to abrogate it, yet they never did so. For hundreds of years the people of Israel, by waiving their modaah, were de facto constantly reaffirming their covenant with Hashem.