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Question #1: TREMENDOUSLY APPEALING!

Yehudah presents the following dilemma: “I often feel pressured to pledge to the tzedakah appeals in shul; however, I am afraid that I will forget to pay afterwards. Is there a simple way to avoid creating a problem?”

Question #2: BORROWERS ANONYMOUS

Susan asks: “I often borrow small change from the pushkas that I keep on my window sill, but I am meticulous to return what I borrowed. Am I indeed permitted to borrow from the pushka?”

Question #3: DIVERTING ACTIVITIES

Tamar calls: I have a pushka in the house from an organization with which I have no contact. Instead, I would like to donate the money to my son’s yeshiva, to demonstrate my hakaras hatov.  May I give the money from the pushka to the yeshiva?

Answer:

In order to answer these questions, I first need to explain how a few general concepts affect the laws of tzedakah:

1. NEDER – A VOW

The Torah requires us to fulfill our vows (Bamidbar 30:3), and the consequences of neglecting this obligation are very serious (see Kesubos 72a). To avoid violating this prohibition, it is better to simply do the mitzvah involved without making a vow to commit oneself to its fulfillment (Nedarim 9a). For this reason, concerned people say “bli neder”, whenever stating something that may imply a commitment to perform a good deed. The words bli neder prevent the commitment from becoming a vow, although one is still obligated to fulfill one’s promise; simply, it does not have the stringency of a "vow" (Shu”t Shevet HaLevi 10:156:1; see also Shla’h, Torah SheBe’kesav, Parshas Matos, Derech Chayim). (In this article, I am not going to distinguish between the technical differences that exist between a neder, a vow, and a shavua, an oath; but I will refer, always, to neder.)

TZEDAKAH PLEDGES

Pledging money to tzedakah is a vow that one must fulfill. To quote the Torah:

Motza sifasecha tishmor ve’asisa ka’asher nadarta LaHashem Elokecha nedava asher dibarta bificha. Guard the utterances of your tongue and fulfill that which you vowed to Hashem, your G-d – the vow which you spoke with your mouth. (Devarim 23:24). 

The Gemara rules explicitly that tzedakah is included in the requirements of this verse (Rosh HaShanah 6a). Therefore, one is required min haTorah to redeem a pledge that one made to tzedakah. Because of this law, it is strongly advisable to make charitable commitments bli neder, so that the pledge does not assume the severity of a vow (Shulchan Aruch Yoreh Deah 203:4 and 257:4).

2. BAL TE’ACHEIR – Do not delay paying

This mitzvah prohibits delaying the redemption of a pledge, such as a commitment to offer a korban in the Beis HaMikdash. Expressing a charitable pledge requires one to fulfill it as soon as possible; failure to do so violates the prohibition of bal te’acheir (Devarim 23:22; Rosh HaShanah 6a). The Gemara notes that the requirements of bal te’acheir for a tzedakah pledge are even more exacting than they are concerning other mitzvos, such as korbanos. One who (at the time of the Beis HaMikdash) pledges a korban may wait until the Festivals (Pesach, Shavuos, and Sukkos) to offer them, since he will then be traveling to Yerushalayim anyway. (Technically, he is required to offer the korban the first Yom Tov in order to fulfill his vow, but he does not violate the lo saaseh of bal te’acheir until all three Yomim Tovim have passed.) However, since a pledge to tzedakah can easily be fulfilled as soon as one locates a poor person, one must disburse the funds at the first possible opportunity.

Thus, the mitzvah of bal te’acheir provides another reason why one’s pledges to tzedakah should be made bli neder. If someone pledged tzedakah without specifying bli neder, he/she is obligated to redeem the pledge immediately. However, if one specified that the obligation is bli neder, failing to redeem it immediately does not violate bal te’acheir.

We can now address Yehudah’s concern about responding to tzedakah appeals. His question was that he felt pressured to pledge donations and was concerned that he might forget to pay them. Ideally, he should donate without pledging, or alternatively, he can say that he is pledging with the understanding that he is not making any commitment whatsoever. (Essentially, this is disallowing his pledge.) A less preferable choice is to pledge bli neder, which assures that, should he forget to redeem his pledge, he will not have violated either the prohibition of vows or of bal te’acheir.

BORROWING FROM TZEDAKAH FUNDS

At this point, we will address Susan’s concerns about borrowing from the pushka. Her first question was: May one borrow tzedakah funds for one’s personal use? The following passage of Gemara discusses this issue:

Rabbah bar Avahu stated, “Someone who declares, ‘This sela coin shall go to tzedakah,’ may use it for his own purposes, and then later pay tzedakah a different coin” (Arachin 6a, as explained by Rashi).

Rabbah bar Avahu is teaching that, although pledging a coin to tzedakah creates a charitable vow that one must redeem, one may still use that coin and then replace it. This is true because the tzedakah coin or currency itself does not become invested with sanctity, as a result of the pledge, which would prohibit its use (Rambam, Hilchos Matanos Aniyim 8:5). In essence, declaring “this coin shall go to tzedakah” is equivalent to saying, “I hereby commit myself to donate to tzedakah an amount of money equal to the value of this coin.” The coin remains the donor’s, and he may borrow it and later replace it (see Shulchan Aruch Yoreh Deah 259:1).

The Gemara subsequently teaches that one may borrow the pledged coin only if it was not yet given to the gabbai, the tzedakah treasurer. Once the gabbai receives the money, it is tzedakah property, and one may not borrow it. Under normal circumstances, a treasurer is not authorized to lend or exchange tzedakah funds (Bava Basra 8a; Rambam, Hilchos Matanos Aniyim 8:4). One exception is when the lending or exchanging benefits the recipient of the funds (Arachin 6b; see Pischei Teshuvah, Yoreh Deah 259:4 for another exception).

LIMITED LIABILITY

By the way, the sanction to borrow pledged money is also a liability, since it sometimes makes the person responsible to replace the money if it is stolen (see Choshen Mishpat 301:6). On the other hand, in a case when one may not use tzedakah money, he is not liable in the event of its loss unless he was negligent, for example, forgetting where he put it.

WHO OWNS THE MONEY IN THE PUSHKA?

May Susan borrow from the pushka? According to what we have just learned, this depends on whether the money in the pushka already belongs to the organization or is still Susan’s property. Many authorities debated this question extensively about 150 years ago. The shaylah that spawned this literature is interesting.

HISTORICAL BACKGROUND

For the last few hundred years, many Jewish Diaspora households owned a pushka dedicated to Rabbi Meir Baal HaNes, a fund whose purpose was to provide succor for indigent Jews living in Eretz Yisrael. In a responsum dated Marcheshvan 18, 5626 (1865), Rav Mordechai Eitinga, then rav of Lvov (currently located in western Ukraine), was asked about someone who had accumulated a large sum of money in his Rabbi Meir Baal HaNes pushka and now felt that the local poor had a much greater need for these funds. Could he divert the money to local needs instead of sending it to Eretz Yisrael? Rav Eitinga discusses two issues:

(1) May money pledged to one charitable cause be diverted to a different one?

(2) Do the poor of Eretz Yisrael already own the money in the pushka?

If the answer to the first question is “yes,” and to the second question is “no,” then the money may be diverted to the local indigent. Otherwise, it must be sent to Eretz Yisrael, because each of the terms of the pledge must be absolutely fulfilled, or one is “stealing” money that already belongs to the poor of Eretz Yisroel (Shu”t Maamar Mordechai #15).

Let us follow his analysis.

DIVERTING OR A DIVERSION

Whether one may divert tzedakah money from one individual or organization to another is, indeed, a dispute among early poskim. Why should one be permitted to divert the funds? Explaining this requires that we note a new factor that the Gemara did not discuss. In Rabbah bar Avahu’s case, the donor simply declared, “This coin goes to tzedakah,” without specifying a specific individual or organization. However, what happens if someone holding a wad of hundred dollar bills declares, “I dedicate this money to the Asher Richman Hebrew Academy”? Must he contribute this amount of money to the Richman Academy, or may he afterwards decide to send it to the Pauper Yeshiva? Does halachah require him to honor a pledge to a specific organization or individual, or is he simply required to donate this amount of money to any tzedakah? If indeed the pledge is simply a generic requirement to donate this amount to tzedakah, then it should follow that one may actually contribute the funds to a different charity from what he had originally intended.

13^TH CENTURY CHUTZPAH

Early authorities discuss this question. A major posek of 13^th century Germany, the Mordechai, reports a very unusual din Torah. A pauper claimed that a wealthy individual had promised him a specific amount of money and had not paid it, whereas the rich man denied having ever pledged any money. The poor man contended that the pledge obligated the donor to pay him, and that the case was therefore no different from that of any plaintiff claiming money from a defendant who denies that he owes any. The halachah in such instances is that the defendant is required to swear an oath (shevuas heses) denying the claim. Similarly, the Mordechai (Bava Kamma #172) ruled that the affluent man was required to swear that he had never pledged any money to the pauper! (He does not report whether or not this pauper was subsequently offered a position as Public Relations Director for any major Torah institution.)

The poskim prove from this Mordechai that when one pledges money to an individual tzedakah, the particular tzedakah can demand payment. Otherwise, what claim does the pauper have on the rich man? Even assuming that the rich man pledged him money, this is merely an obligation to give tzedakah, which the affluent man may donate anywhere. If the pauper indeed has a claim, it must follow that a pledge automatically includes a debt to the individual (or cause) specified. Following this line of reasoning, money pledged to one tzedakah cannot be subsequently rerouted to a different one, however legitimate the need (Shach, Choshen Mishpat 87:51; Machanei Efrayim, Hilchos Tzedakah #7).

LOCAL OR ISRAEL?

Although not all authorities accept this position of the Mordechai (cf. Shu”t Maharit #22 and #39), many later authorities do follow his ruling (Ketzos HaChoshen, 87:21). Based on this analysis, most later authorities contend that money placed in a Rabbi Meir Baal HaNes pushka may not be given, instead, to the local poor (Shu”t Maharya HaLevi #49; Shu”t Beis Yitzchak, Orach Chayim #21).

This allows us to answer our third question asked above: “I have a pushka in the house from an organization with which I have no contact. I would like to donate the money instead to my son’s yeshiva, to demonstrate my hakaras hatov.” The answer is that, although supporting the Torah institutions that educate our children is vital, since this money has already been designated for a specific organization, one may not transfer it to a different one.

PUSHKA BORROWERS ANONYMOUS

All of this does not answer Susan’s question as to whether she may borrow money from the pushka. Even if money pledged to one institution cannot be transferred to another, until the money becomes the property of the institution, one may borrow it, as we learned before. Thus, we need to determine whether money in the pushka is already the property of the institution. Do I still have some control over it, and I may therefore borrow it, subject to the above conditions? Or, is it now the property of the tzedakah, and I may not?

This halachah depends on the following: Who owns the pushka? If I own the pushka, then placing money in the pushka requires me to donate it to tzedakah, but it is not yet their property, and I may borrow it. As I mentioned above, this situation may create liability for the funds, should they be stolen.

On the other hand, if the organization assumes that money placed in the pushka belongs to them, then I may not borrow any of that money. The reason for this is that since the pushka is their vessel, money placed inside is equivalent to being given to the gabbai, the tzedakah treasurer (based on Shulchan Aruch Choshen Mishpat 200:3). Most authorities follow this latter interpretation of the halachah.

HABITUAL BORROWERS

Some people are in the habit of borrowing money from the pushkas on a regular basis. Now, after reading my words, they may realize that this practice might be forbidden, depending on the above-mentioned circumstances. Nevertheless, there is a method whereby a person may put money into any pushka and still be able to borrow it afterwards: he should make a condition, in advance, that when he puts money into the pushka, he is not donating it to the institution, but simply pledging it to them. This way, the money is not yet the property of the institution, and one may borrow it. Although this solution will not help for the money already in the pushka, it can be used to avoid this problem in the future.

Some contemporary authorities suggest that someone who usually borrows from the pushka might be considered to have made this condition from the beginning, i.e., that he is not giving the money yet to the tzedakah cause, but only pledging it (Derech Emunah, Matanos Aniyim 7:note 121).

To answer Susan’s question, I would suggest that she make a condition that, henceforth, when she places money in the pushka, she is not donating it to that particular organization at this time. In so doing, she reserves the right to borrow from the pushka, although she also creates for herself responsibility for the money, should it be stolen. She may decide that she is better off curbing her habit of borrowing from the pushka, and make an appointment to join Borrowers Anonymous.

Making change from the pushka that benefits the tzedakah is permitted in any case, such as converting the small change in the pushka to large bills (Tzedakah Umishpat Chapter 8, footnote 25, page 148).

Unfortunately, most people do not realize the complex shaylos that arise from shul appeals and pushkas – hopefully, this article will help repair this breach. May we all always be showered with berachos for contributing generously to tzedakah!

Question #1: THE TALIS EXCHANGE

Dovid asked me the following shaylah: “I placed my talis in shul and, upon returning, discovered that it had been replaced by a similar-looking talis. I left the talis undisturbed, and hung up a sign noting the exchange. Unfortunately, no one responded, and indeed, the owner may not even realize that he has my talis. Should I take his talis home? May I use it, or must I purchase a new one and leave his until he claims it, which may never happen?”

Question #2: THE LAUNDRY EXCHANGE

A laundry returned the correct quantity of items that had been brought in originally; however, the customer, Reuvein, later realized that one sheet was not his. A different customer, Shimon, picked up his items and noticed some things were missing however, the laundry insisted that they had returned whatever he brought. Shimon subsequently discovered that Reuvein had one of Shimon’s missing sheets, and he clearly identified his missing sheet. Reuvein claimed that the sheet was a replacement for his sheet that was lost, and that he is, therefore, not required to return it. Must he return the sheet?

Question #3: THE WEDDING EXCHANGE

Someone attended a wedding with one coat and, mistakenly, returned with a different one. May he use this coat and assume that the other party is agreeable to the exchange? Does this depend on which coat is more valuable?

Question #4: AN UMBRELLA ON THE SUBWAY

On the subway you see a frum, unfamiliar person rush off the car, forgetting her umbrella. May you keep or use the umbrella, knowing that the owner will soon realize her loss?

SHO’EL SHELO MIDAAS

The concern in all these situations is that one is using someone else’s property without permission. This is called sho’el shelo midaas, borrowing without the owner’s knowledge, which is usually halachically equivalent to stealing (Bava Metzia 41a; 43b)! In general, one may not use an item until one receives permission from the owner.

CAN’T I JUST ACCEPT THE TRADE OF THE TWO ITEMS?

Since the loser is wearing my talis, why can’t I simply assume that we have traded taleisim? I’ll keep his talis, and allow him to keep mine. (Although the correct Hebrew plural is taliyos or talisos, I will use the colloquial taleisim.)

Although Dovid may grant permission to the other person to use his talis, can he assume that he has permission to use the other person’s talis? Let us examine a relevant discussion:

EXCHANGED ITEMS AT THE TAILOR

Someone whose clothes were replaced with someone else’s at a tailor may use what he received, until his garment is returned. However, if the exchange transpired at a shiva house or a simcha, he may not use the garment he received, but must hold it until the owner claims his property. What is the difference between the two cases? Rav answered: “I was sitting with my uncle, and he explained to me, ‘Sometimes people tell the tailor to sell the item for them’” (Bava Basra 46a).

We see from this case that if I exchanged a coat with someone else at a simcha or at a shiva, I may not wear the coat, since I am “borrowing” it without permission. The fact that the other person is using my garment, knowingly or unknowingly, does not permit me to use his. Even if the result is that I must purchase a replacement, I may have to do so, even though a perfectly nice garment is sitting unused in my closet, since the garment is not mine.

However, if the exchange happened in a tailor shop, I may use the replacement.

WHAT IS THE DIFFERENCE BETWEEN A TAILOR AND A WEDDING?

Why is the tailor shop different? The Gemara presents a rather cryptic answer to this question: “Sometimes people tell the tailor to sell the item for them.” What does this mean?

The early poskim explain that when the exchange transpired in a repair shop, one may assume that the following situation occurred:

Someone brought a garment to the tailor, asking him to sell it for him. The tailor erred and sold your garment instead, and then paid the money received (minus his sales commission) to the original owner of that garment. When you came to claim your garment, the tailor realized his error, and also realized that he must compensate you for your item, since he probably has no way to retrieve it. However, he had no cash available, so he gave you a replacement instead – the garment that he was supposed to sell (Tur and Sma, Choshen Mishpat 136:1). Since the tailor already paid the original owner for his garment, he now owns it and is fully authorized to give it to you as a replacement for your lost garment. This case is referred to as nischalfu keilim beveis ha’uman (items that were exchanged in a craftsman’s shop).

The next passage in the Gemara’s discussion is now almost self-explanatory:

Rav Chiya, the son of Rav Nachman, explained that the ruling of nischalfu keilim beveis ha’uman applies only if the repairman himself gave you the different garment, but not if his wife or children gave them to you.

Obviously, if the tailor’s wife or child gave you the wrong garment, you cannot assume that this was because of the tailor’s earlier error. It is more likely that they simply mistakenly gave you the wrong garment, which needs to be returned.

Similarly, the following concluding passage of this particular discussion is clear.

Rav Chiya, the son of Rav Nachman, continued: The halacha of nischalfu keilim beveis ha’uman applies only if the repairman told you, “Here is a garment.” However, if he said “Here is your garment,” we assume that he erred, since he is not giving you your garment.

If the tailor had sold your garment in error and is now sheepishly providing you with a replacement, he would not tell you, here is your garment. Therefore, he must have mistakenly given you the wrong garment, and you must return it.

We see clearly that the ruling of nischalfu keilim beveis ha’uman applies only when I can assume that a tailor or other repairman inadvertently sold or disposed of my item and can legitimately offer me the replacement. Otherwise, the situation is comparable to the case of garments exchanged at a simcha, where one may not use the received garment without permission.

Thus, referring back to question #3 above: Someone attended a wedding with one coat and, mistakenly, returned with a different one. May he use this coat and assume that the other party is agreeable to the exchange?

The answer is that we have no basis with which to permit you to use the other person’s coat.

At this point we can analyze Question #2.

A laundry returned to Reuvein the same number of items he had brought them; however, one sheet is not his. Shimon claims to be missing some items, which the laundry denies. Shimon proves that the sheet is his, yet Reuvein claims that the laundry gave it to him as a replacement for what they lost, and that he is therefore not required to return it. Must he return the sheet?

One of the interesting and surprising aspects of this shaylah is that this actual case was asked over 600 years ago!!

Answer: Shimon did not give the sheet to the laundry for them to sell. Therefore, the laundry gave Shimon’s garment to Reuvein without authorization, and he must return it to its rightful owner, even if Reuvein has no other way of being compensated for his loss (Terumas HaDeshen #319). The reason for this is obvious: Laundries do not usually act as agents to sell people’s clothing, and in any case, Shimon clearly denies ever making any such arrangement.

SO, WHAT IS THE STATUS OF THE TALIS?

Let us return to our first original question. Someone took Dovid’s talis and left behind a similar-looking one. The owner has not responded to any of his notices, and Dovid suspects that he does not even realize that an exchange transpired.

Based on the above discussion, it would seem that Dovid has no choice but to treat the talis as unusable and to consider purchasing a new one. However, there is another Gemara discussion that affects our case, so don’t run to the store just yet. Let us examine the following passage:

Shmuel said, “Someone who finds tefillin in the street should estimate their worth and may wear them himself” (Bava Metzia 29b). If the finder has no need for a pair of tefillin, he may sell them and put the money aside for the owner.  The Rosh (Bava Metzia 2:16) rules that the finder may even use the money in the interim.

Shmuel’s statement presents an obvious question:

His ruling seems to contradict the principle that borrowing an item without permission is tantamount to theft. Why can the finder wear (or sell) these tefillin? As we are all aware, one of the Torah’s mitzvos is to return a lost object to its owner (Devorim 22:1-3; Shemos 23:4). How does the Gemara permit the tefillin finder to wear them and not return them to the owner? And, even if we correctly assume that “estimating their worth” means that he is responsible to return the value of the tefillin to their owner, if and when he locates him, why is this case different from the normal obligation to return the actual lost item itself to its owner? Obviously, there must be something about tefillin that permits the finder to keep them and simply repay their estimated value.

Some poskim contend that this ruling applies only to a mitzvah object, such as tefillin, where the owner wants someone else to use them, rather than have them sit unused (Shach 267:16, in explanation of the Rambam, Hilchos Gezeilah 13:14). However, most authorities imply that this ruling applies also to non-mitzvah items, in cases where the owner is satisfied with simply receiving compensation equal to their value (see Tur and Shulchan Aruch, Choshen Mishpat 267:21). The basis for this second opinion is the continuation of the Gemara’s discussion:

TEFILLIN VERSUS SEFORIM

The Gemara asks why someone finding tefillin may wear them, since this ruling appears to contradict a statement that someone who finds books may not use them, but must hold them for the owner. Why are tefillin different from seforim? The Gemara answers that a person wants to get his own books back, whereas he can always purchase new tefillin. This implies that people have no strong attachment to any specific pair of tefillin, whereas they have developed a bond with their own seforim, since they are difficult to replace. From this, one could infer that there is a difference between finding an item that the owner does not mind replacing and finding an item that he does not want to replace, and this would seem to have ramifications for someone who finds a talis, an umbrella, or any other easily replaced item.

Although this seems to be the obvious point of this Gemara, elsewhere the Gemara appears to rule otherwise. If someone found coins placed in a deliberate fashion, the finder may not spend this money and replace it with other coins, but must hold these very specific coins and return them to their owner (Bava Metzia 29b). Obviously, the owner is not concerned about receiving these specific coins, and would be very satisfied with receiving replacement money. Why is it not sufficient to simply return coins of the same value? We see that returning replacement value is not satisfactory, even when it makes no difference to the owner if the particular coins are returned to him, or if he is given others of equal value in their stead.

The answer is that in the case of lost tefillin, two factors must be met before one may use them. In addition to the point mentioned above, a second factor is that a finder who chooses not to use the tefillin but give them back becomes a guardian, who is responsible to care for them. He must then occasionally air them out and ensure that they are kept dry (Rosh, Bava Metzia 2:18). (When a person wears tefillin daily, he automatically airs them out at the same time, which benefits them.) Thus, the owner of the tefillin actually benefits more if the finder sets aside money, since there is now no risk of damage to the tefillin. This is qualitatively different from finding lost coins, which require no care other than storing them in a secure place.

We can therefore extract the following principles:

If taking care of a lost item requires some effort, and also, the owner does not care whether or not the original item is returned to him, the finder may estimate the value of the lost item in order to, eventually, repay this amount. Otherwise, the finder should hold the lost item and await the owner’s return. (There is another case mentioned when the finder sells the lost item for a similar reason, but that case is beyond the scope of this article.)

Having established the rule, let us see which cases fit the rule, and which do not. Clothing does not usually fit this rule, since people are interested in getting back the same garment that they lost. A person is comfortable with his own clothes, and often purchasing something to one’s taste is not a simple matter. Therefore, someone finding a lost garment may not sell it and hold the money for the owner.

ARE UMBRELLAS AND TALEISIM LIKE TEFILLIN?

On the other hand, the average person does not develop a personal attachment to his umbrella and is perfectly satisfied to have a usable replacement umbrella. Similarly, a man is usually not that concerned about his specific talis and is satisfied with a replacement. In addition, both of these items are comparable to tefillin and not to coins, since, if they are never used, they become musty. (Normal use of an umbrella airs it out.) Therefore, someone who locates a lost umbrella may use it after estimating its value.

We are now prepared to answer Question #1 and also Question #4.

First, Question #4: On the subway you see a frum, but unfamiliar person rush off the car, forgetting her umbrella. May you keep or use the umbrella, knowing that the owner will soon realize her loss?

Clearly, she will despair of recovering her umbrella as soon as she realizes her loss. However, one may not pick up the umbrella until after she has realized her loss, and this may happen only some time after she leaves the subway. If you pick it up soon after its having been left, the umbrella is still the property of the person who lost it, and the one picking it up is responsible to return it.

However, a person is usually not concerned about owning his specific umbrella, but is satisfied with money to purchase a replacement. (If indeed, the umbrella that was lost appears to be a designer umbrella, the halacha will be different.) Therefore, even though the owner still owned the umbrella when you found it, you may claim the umbrella as your own, and simply make a mental note how much it is worth. Should you ever meet its owner, and should she prove that the umbrella was hers, you would have to compensate her for it.

And now, our analysis of the opening question, The Talis Exchange

Dovid had placed his talis in shul, and it was replaced by a similar-looking talis. His attempts to alert the owner were unsuccessful, and indeed, the owner may not even notice the exchange. May he use the other talis or must he purchase a new one?

I believe that most men do not feel attached to their particular taleisim, and this case is, therefore, comparable to the tefillin case of the Gemara. Assuming this to be true, someone who finds a lost talis may estimate its value and then either wear it or sell it. Either way, he should record the value of the talis and intend to return it to the owner, should he ever come back for it. (When I first published this article, I received several responses disagreeing with me, contending that most people are more possessive of their taleisim than I felt they were.)

PECULIARITIES

The careful reader may have noted that our discussion is heading to an unusual conclusion. Although the Gemara rules that the owner is less concerned about retrieving his tefillin than retrieving his seforim, today, the opposite is generally true – an owner is usually not concerned about getting back the same sefer, since one can usually purchase it again in a bookstore. (However, the Gemara’s halacha would remain true if he had written notes in the sefer, or for any reason that would give this particular sefer special meaning.)

On the other hand, many people own hand-picked tefillin and want their specific pair back (Minchas Elazar 4:9; see Pischei Choshen, Aveidah 6:ftn23). They may have purchased tefillin whose parshiyos were written by a specific sofer who no longer writes, or made by a specific batim macher who has a long waiting list. Thus, after analyzing the principles of the above-mentioned Gemara, the Minchas Elazar decides the opposite of its conclusion and rules that the original owner gets his tefillin back.

However, an average person is usually satisfied with a replacement pair of tefillin, provided that they are absolutely kosher and of equal halachic quality. Thus, although the principles of the Gemara are infinite, the specific cases that match them change with the specific society in which they occur.

Returning lost items is a beautiful and important mitzvah. As we now see, the details of observing this mitzvah are often very complicated – and can vary from item to item.

Question #1: A CANDID QUESTION!

Chayim calls me on the phone:

“Prior to our marriage, I was taught that one may open cans on Shabbos, provided one does not reuse the can, whereas my wife was taught that this is strictly forbidden. Since I was taught by someone very knowledgeable and observant, there is something inconsistent here that I would like to understand.”

Question #2: DON’T PULL THE RING!

“I was eating at someone’s house for Shabbos where they served soda in cans and opened them. I thought that this desecrates Shabbos, and was uncertain whether I could trust their kashrus. Could I?”

Answer:

Analyzing the laws of Shabbos properly is a very enriching experience. In this article, I will touch on some aspects of the following melachos germane to the issues involved:

(1) Boneh, Construction

(2) Soseir, Destruction

(3) Makeh Bepatish, literally, striking with a hammer

We also need to explain an important principle of the Shabbos laws called mekalkeil – literally, ruining. In general, a melachah activity is prohibited min haTorah only when the direct results are beneficial. An act whose direct result is destructive is not prohibited min haTorah but only miderabbanan. For example, digging a hole in the ground when one needs the earth but is not interested in the hole is considered a destructive activity and therefore prohibited only miderabbanan.  The need to acquire dirt notwithstanding, the dug hole that results is not a positive development, but a negative one. This renders the burrowing mekalkeil and relegates it to a rabbinically prohibited activity. However, digging a hole to plant or to create a posthole is a positive benefit and therefore prohibited min haTorah.

In a similar vein, smashing a barrel to obtain its contents is prohibited only miderabbanan, regardless of the need to obtain the food inside, since the smashed barrel is a negative result.

Boneh

The Torah violation of Boneh includes performing any type of home repair or enhancement, even only a minor repair (Shabbos 102b). Thus, it is prohibited min haTorah to hammer a nail into a wall in order to hang a picture (Rashi, Eruvin 102a s.v. Halachah). Similarly, one may not smooth the dirt floor of a house, because this enhances the “structure” (Shabbos 73b).

Constructing Movable Items

Does the melachah of Boneh apply only to items connected to the ground, or does it also apply to the construction of implements and other movable items?

My desktop dictionary defines “construct” as “to build or form by putting together parts.” Clearly, in English “construct” includes manufacturing implements, just as it includes building on the ground. Do the laws of Shabbos similarly recognize that assembling implements violates this melachah?

The Gemara (Beitzah 10a) cites a debate regarding this question. In halachic conclusion, we find the following basic approaches:

(1) The melachah of Boneh includes only building on the ground and does not include movable items (Rashi, Shabbos 47a s.v. Chayov; Beitzah 11b s.v. De’ein).

(2) Major construction of small movable items is prohibited min haTorah, but minor improvement is not (Tosafos, Shabbos 74b and 102b). What is considered “major construction”? Assembling something in a way that involves strength and skill constitutes Boneh. Therefore, manufacturing implements is prohibited min haTorah, since it involves both strength and skill to do the job properly, whereas making a minor repair to an implement is not included under Boneh.

Large = Connected

According to many authorities, there is another factor to consider: the size of the movable item (Rashi, Eruvin 35a s.v. Umasnisin). In their opinion, one may not perform even a minor repair or enhancement to a utensil so large that one does not usually move it when it is full to capacity. Thus, even a small repair to a refrigerator or a bookcase is prohibited min haTorah according to this opinion, since an item this large is halachically equivalent to something attached to the ground.

Soseir

Soseir, demolishing or razing, is also one of the 39 melachos, since the Jewish people disassembled the Mishkan whenever they moved it from place to place (Shabbos 31b).

Thus, removing something from a structure, such as removing a nail from a wall, or lifting a window or door off its hinges, is prohibited on Shabbos.

Destructive is Constructive?

Many acts of Soseir ruin something, and according to the rule of mekalkeil mentioned above, are prohibited only miderabbanan. Of course, this leads us to ask:

How can Soseir be prohibited min haTorah as one of the 39 melachos; is not demolishing always a destructive act? The answer is that Soseir is prohibited min haTorah when the destruction is constructive, despite the apparent contradiction in terms. The disassembly of the Mishkan was an act of demolition, yet it was constructive, since Hashem wanted the Mishkan (and the Jewish people) to move to a new location. Similarly, demolition of a building is prohibited min haTorah, if the ultimate results are beneficial, such as razing part of a building in order to renovate it, or razing a building in order to build anew on the site. In such cases, the demolition provides an immediate benefit, since it clears the site for the new construction.

In cases where there are no immediate benefits from the demolition, it is still prohibited miderabbanan. Thus, wrecking a house to save someone trapped inside does not involve a Torah prohibition of Soseir, since the act is itself destructive. (The activity is, of course, permitted in any case, because of the life-threatening situation involved.)

The authorities dispute whether someone who destroys something out of anger violates Shabbos min haTorah or only miderabbanan. According to most Rishonim, this incurs only a rabbinic desecration of Shabbos, since there is no positive benefit from the destruction (Pri Megadim 314:11 in Eishel Avraham). Of course, this act is prohibited for a variety of reasons, including bal tashchis (unnecessary destruction) and damaging one’s character development (Shabbos 105b). There is a minority opinion of the Rambam, who holds that wrecking something out of anger incurs a Shabbos violation min haTorah. He rules that performing an act that makes its perpetrator feel better incurs a Torah violation and is not considered mekalkeil, even though the act is extremely damaging both to the object of his wrath and to himself.

Does Soseir apply to Portable Implements?

Having established that Soseir is prohibited min haTorah only when it creates a direct positive result, we now want to understand whether destroying a vessel is included under the melachah of Soseir. Note that I discussed earlier whether the melachah of Boneh applies only to items connected to the ground, or whether it also applies to the construction of movable items. I noted that the Gemara debates this issue, and that the Rishonim provide the following conclusions:

1. Some contend that the melachah of Boneh includes only building on the ground.

2. Others contend that major construction of small movable items is prohibited min haTorah, but a minor improvement is not.

3. Many authorities contend that this previous dispute refers only to small, easy to move implements, but that a large implement is definitely included min haTorah within the melachah of Boneh, even to perform a minor repair or enhancement.

Since Soseir is the opposite of Boneh, if constructing an item constitutes Boneh, according to the opinions above, then destroying it is Soseir.

Makeh Bepatish

Before we analyze the Gemara texts that impact on our original questions, we still need to discuss one other prohibition: the melachah of Makeh Bepatish, which includes a general prohibition of completing items, such as smoothing a surface to finish an item. One aspect of this melachah is that it prohibits making a nice opening in a vessel, such as boring an outlet hole in a storage drum (Shabbos 146a; Rambam, Hilchos Shabbos 10:16). The Gemara teaches that it is prohibited min haTorah to make an opening that is to be used in both directions, whereas making an opening to be used only in one direction is prohibited miderabbanan. As an example of the first type of opening, the Gemara mentions an opening made in a chicken coop, which allows ventilation of its fumes and also allows light and/or air into the coop. Boring an outlet hole in a storage drum, the case I just mentioned above, is a classic example of something prohibited only miderabbanan, since the opening is intended only to remove the product, but not to return it to the vessel. However, creating a new opening that is meant both to remove and return product incurs a Torah prohibition.

The Can Opener

With the principles we have learned, we can now examine the Talmudic sources that directly affect our original questions: May one open a can or other package on Shabbos to obtain its contents?

The Mishnah (Shabbos 146a) permits smashing open a barrel of figs on Shabbos to reach the food inside, provided one does not try to make a proper opening. As I noted earlier, attempting to make a proper opening certainly desecrates Shabbos. The question is whether one can simply break the barrel to reach its figs without attempting to make a nice opening. This Mishnah states that this is permitted.

However, in another discussion (Eruvin 34b) the Gemara rules that one cannot break open a container to obtain the food inside. Since manufacturing a proper vessel, even a small one, is prohibited min haTorah, smashing it remains prohibited even when one is smashing the vessel to obtain food. Although I explained above that this act is mekalkeil and therefore not prohibited min haTorah, it is still prohibited miderabbanan.

If so, how can the Mishnah permit smashing a barrel to obtain its contents?

There are two major approaches to answer this question. Tosafos explains that the Mishnah that permits smashing to obtain food is not referring to a proper vessel, but to one that was previously smashed and then feebly repaired by use of resin as glue. Reconstructing this type of container, known in Aramaic as a mustaki, would not violate a Torah violation of Boneh since it is not considered a proper vessel. As a result, smashing this barrel does not really violate Soseir, and therefore, one may do so in order to obtain the figs. However, the Gemara in Eruvin is dealing with a regular vessel and therefore forbids smashing the vessel to obtain the food inside. This approach of Tosafos is followed by the Shulchan Aruch (Orach Chayim 314:1), who concludes that one may smash open a mustaki to obtain food on Shabbos, but not a proper vessel.

Other authorities distinguish between the two cases in a different way and therefore reach a different halachic conclusion. In their opinion, the Mishnah in Shabbos is describing a small vessel (as defined above) and the Gemara in Eruvin a large one. They conclude that in order to enhance the pleasures of Shabbos, Chazal permitted smashing a small vessel to obtain food, but they prohibited smashing a large vessel. According to this approach, one may smash open any “small” container on Shabbos in order to obtain its contents.

How do we Rule?

The Mishnah Berurah concludes that it is prohibited to smash open even a small vessel to obtain food on Shabbos, following the conclusion of the Shulchan Aruch (Bi’ur Halachah 314:1). Other authorities rule that one should not admonish those who smash vessels to obtain their contents, since this common practice is based on a bona fide opinion (Aruch Hashulchan 314:8). All agree that one may not open the container in a way that creates a nice opening.

However, this approach does not satisfactorily explain those who permit opening cans on Shabbos, since neither of these opinions permits being mekalkeil to obtain food on Shabbos. They only dispute whether one should correct those who do smash small vessels. Is there any basis for those who allow the opening of cans on Shabbos?

Enter Chosalos

There is another basis to permit opening packaging on Shabbos. The Gemara mentions a halachah of chosalos, which are a type of basket made of palm branches (also known as lulavim) in which one places unripe dates to ripen or where one stores dried figs. The Gemara rules that one may rip these chosalos open on Shabbos. The question is why this is not considered destroying a vessel, which we concluded before is prohibited, at least lechatchilah.

The Kolbo explains that chosalos are considered an artificial peel or shell around the dates or figs. The rationale is that the chosal is tafeil, secondary, to the food it contains and therefore it is not considered to be a vessel. Just as one may remove the natural peel or shell of a fruit on Shabbos and it is certainly not making or destroying a vessel, so one may remove an artificial “peel” or “shell” on Shabbos. Thus, anything included under the heading of chosalos may be opened on Shabbos. The Magen Avraham states that the permission to open chosalos does not permit the breaking of a regular vessel.

Can our contemporary packaging be compared to the law of chosalos? To answer this we need to have a clear definition of what defines a regular vessel and what defines chosalos.

Opening Cans

In a lengthy teshuvah on the subject, Rav Moshe Feinstein defines a chosal as any item that is not reused for any other product; everyone disposes of the chosal once its product is used up. A “regular” vessel is one that people reuse for another product. According to this definition of a chosal, even a tin can is a chosal, if everyone disposes of the can after finishing the original contents, and certainly if everyone disposes of the can immediately after opening it. Following this analysis, opening cans on Shabbos does not violate the melachos of Shabbos, since tin cans are not reused for other products. (In Rav Moshe’s teshuvah on the subject, he implies that this halachah is true, even if one returns the original product to the chosal.) Rav Moshe himself concludes at the end of his teshuvah that one should open these packages before Shabbos, explaining that people might misunderstand the laws and mistakenly open packaging that is prohibited. However, in the case of someone who made a sheva berachos or who invited guests and finds, to his embarrassment, that he does not have enough food to serve, he permits having a gentile open the cans and other containers on Shabbos (Shu’t Igros Moshe 1:122; for a similar approach, see Shu’t Chelkas Yaakov 3:8).

On the other hand, other authorities contend that any strong vessel is not considered a chosal.

We must note that in another responsum, Rav Moshe rules that one may not open a milk or juice carton on Shabbos, since this creates a spout (Shu’t Igros Moshe, Orach Chayim 4:78). Why is this not similar to opening a chosal, which Rav Moshe permits? It seems that although he permits opening a chosal on Shabbos, he does not permit opening it in a way that forms a nice opening. (By the way, we should note that, according to what I have just explained, Rav Moshe would prohibit opening cans with pull up rings  since pulling the lid off forms a nice opening.)

Soda Cans

Rav Shelomoh Zalman Auerbach permits opening soda cans on Shabbos (Shulchan Shelomoh 314:7:4). He makes no mention of the concerns voiced in Rav Moshe’s closing paragraphs (that people might err and exceed the perimeters of his leniency) and therefore concludes that even Jews may open them on Shabbos.

On the other hand, the Chazon Ish (Orach Chayim 51:13) contends that opening any cans violates the Torah prohibition of making an opening. He explains two different reasons why opening cans is prohibited min haTorah:

1. The opening is meant to be used both ways: it allows air inside the can to break the vacuum and it allows the product out.

2. Opening a can is like creating a new vessel, since the closed can is useless, and opening it creates a serviceable vessel. Although he acknowledges that few people reuse cans, they can be reused, particularly by resourceful people (Orach Chayim 51:11).

Rav Shelomoh Zalman disputes the rationale that a soda can opening is considered “two-way”, since the entire purpose of allowing the air in is to enable the product to exit. Also, he does not consider the resultant opening a “nice opening”, since it is simply a means of removing the product from the container.

In conclusion, the intent of this article is not to provide a definitive pesak regarding these issues – every person should ask his posek. Our goal is to give people a better understanding of the issues involved and an appreciation of their rav’s ruling, whatever it may be.