You Can’t Take It with You — Moving and Removing Mezuzos

My new book, which includes more fascinating expositions of contemporary halachic issues, is available! Details Next Week YOU CAN’T TAKE IT WITH YOU!   Question #1: “We are moving residences, and I understand that I must leave the mezuzos in my old home. However, they are beautiful, mehudar mezuzos that I would like to use […]

What Happens When We Do Something Wrong?

Since the Aseres Hadibros which include the laws of Shabbos are in Parshas Va’eschanan, we have an opportunity to discuss what happens when we do something wrong on Shabbos.   Question #1: Cholent caper Shimon looks rather sheepish when he asks this shaylah on Shabbos morning: During the night, he tasted the cholent and decided […]

My Vows I Shall Fulfill

It is rather obvious why we are studying this topic this week – since the laws pertaining to vows are the first subject mentioned in Parshas Matos. Question #1: Quiz question Can performing a mitzvah become a liability? Question #2: Is this a "klutz question?" What does it mean that I am doing something "bli […]

Bill’s Saga Or The Power of a Single Word

Several articles of mine relating to the observances of the Three Weeks or the Nine Days are available for reading or downloading on RabbiKaganoff.com Since parshas Pinchas discusses many of the relationships of Hashem and His people, I’ll share with you the following true story: Bill’s Saga Or The Power of a Single Word There […]

The Right Type of Help

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The Numbers Game

Because this article explains some basics of how Torah is taught by Chazal, I think it is appropriate to the week of Shavuos   Question #1: Pie r squared Yanki is supposed to be watching his weight and therefore needs to figure out how many calories are in the pie he beholds. To figure out […]

May I Participate in the Census?

In honor of this week’s Haftarah, I present the following halachic discussion:   Question #1: Counting sheep Why would someone count sheep when he is trying to stay awake?   Question #2: Counting from a list Is it permitted to count people from names on a list?   Question #3: Ki Sissa or Hoshea? The […]

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What is a Temurah?

Question: Two Temurahs

“Why does the Torah mention the mitzvah of temurah twice at the end of this week’s parshah, Bechukosay, once at the beginning of Chapter 27 and again at its end?”

Answer:

The concept of offering korbanos is foreign to us, since, unfortunately, our Beis Hamikdash still remains in ruin and we are neither required nor permitted to offer korbanos anywhere else. Precisely because this topic is so unfamiliar, we should utilize every opportunity to familiarize ourselves with these laws. There are numerous reasons that underscore the importance of this topic, including:

(1) When our Beis Hamikdash is rebuilt — may it be speedily in our days — we will have to know all the laws about offering korbanos.

(2) It is part of the Torah we are required to know, and will also help us better understand this week’s Torah reading.

(3) The concept of uneshalmah parim sefaseinu (Hoshea 14:3), that when we are unable to offer korbanos, our reading and studying these Torah sections fulfills our requirement to offer the korbanos.

(4) There are some very important and little known laws that affect us today. We will soon study them.

What is temurah?

Towards the end of this week’s parshah, the Torah mentions a very unusual concept called temurah. Someone who had consecrated an animal to be his korban subsequently changes his mind and decides to substitute a different animal for the korban. By doing so, he violates the Torah’s prohibitions of lo yachalifenu velo yamir oso, “do not exchange it and do not substitute in its stead.” The Torah teaches that as a result of his declaration, both animals now have the sanctity of that korban (Vayikra 27:10). This means that the declaration succeeded in creating sanctity on the new animal, but failed to remove the sanctity from the original animal. Now, use of either animal for personal benefit is prohibited min hatorah. The animal that attained sanctity because of the second declaration is itself called a temurah (pl., temuros), so the word temurah refers both to the prohibited act and to the animal that is now affected by that act.

What happens to the animal?

What ultimately happens to an animal that has just become a temurah?

Each of the several types of korbanos has specific details as to how it is offered. Consequently, although every temurah animal has sanctity, its status will be determined by the specific korban for which it was dedicated.

Shelamim

One of the most common types of consecrated korbanos is the shelamim, whose name comes from the word shalom, peace. Rashi (Vayikra 3:1) explains two approaches for its name:

(1) The purpose of a shelamim is to bring peace to the world.

(2) The meat of a korban shelamim is divided: most of it is eaten by the owner in Yerushalayim. He may share it with any tahor person he chooses. A portion of the shelamim, the breast meats and the right thigh, is given to the kohen to eat in Yerushalayim and share with whomever he desires. The mizbei’ach (the altar) receives much of the fat of the animal, the kidneys, its diaphragm meat (which butchers often call the “skirt steak”), and a small part of the liver. Thus, “everyone” is made happy by this korban, and it brings peace to the world.

No gender discrimination

Shelamim is unique among the commonly consecrated korbanos in that one may offer an animal of either gender of any of the three types of kosher beheimah (domesticated animal — bovines, sheep or goats) and that there is no age restriction once the animal is seven days old. Of the other three main types of common consecrated korbanos, chatas must be female, whereas both olah and asham must be male. Both chatas and asham have other requirements as far as species, and asham has specific age requirements.

Temuras shelamim

Now that we understand some of the basics of shelamim, our question is what happens to a temuras shelamim. This is the subject of a dispute in the Mishnah (Temurah 17b, 18a), but the halachic conclusion is that a temuras shelamim is treated just as a shelamim. It is offered as a korban and its meat is then divided: part eaten by the kohen and his family, a small part burnt on the mizbei’ach and the majority eaten by its owner.

Temuras olah

The other very common type of consecrated korban is the olah, which is completely burnt on the mizbei’ach. In the case of olah, both the original korban and its temurah are offered in the Beis Hamikdash with all the details of the appropriate halachos observed. In this way, a temuras olah is treated similarly to temuras shelamim.

There is, however, one case when this cannot be done, which is when the temuras olah is a female animal. Since an olah must be male, the female temurah cannot be offered. This creates a very interesting predicament, since the female now has the sanctity of an olah, yet it cannot be offered as such because of its gender.

To resolve this difficulty, the temurah is sent out to pasture temporarily. The plan is that, left to her own devices, she will eventually develop a blemish that invalidates her as a korban. This requires a bit of explanation:

The Torah requires that all animals offered in the Beis Hamikdash be unblemished. There is an extensive list of physical shortcomings that invalidate an animal from being offered as a korban. For example, an animal whose legs are of uneven length is invalid as a korban, even though the animal is otherwise perfectly healthy. Also, an animal that shows evidence of damage, such as a split lip, is invalid as a korban. A blemish is called a moom and an animal bearing such a blemish is called a baal moom.

In the case of most korbanos, a consecrated animal that has become blemished is redeemed with the redemption money used to purchase a replacement korban. After the baal moom korban is redeemed, it may be slaughtered and eaten, but one may not work it.

This is what happens to a female temuras olah. She is sent out to pasture with the hope that she will eventually develop a moom that will invalidate her as a korban. When that happens, she will be redeemed, the redemption money being used to purchase a new korban olah.

It is prohibited min hatorah to blemish a korban intentionally (Rambam, Hilchos Issurei Mizbei’ach 1:7); however, one may release the animal to the pasture in the hope that it becomes blemished.

Temuras chatas

There are other instances when one cannot offer the temurah animal in the Beis Hamikdash. For example, both chatas and asham korbanos are offered to atone for specific sins. If someone creates a temurah of either a chatas or an asham, the temurah has sanctity that will preclude its being used any more by the owner, although it will be invalid for offering in the Beis Hamikdash. Exactly what one does with these animals is discussed by the Gemara and the rishonim but includes too many details to discuss in this article.

Bechor

The temurah of another korban, bechor, has yet a third status. A bechor is a firstborn male animal of a kosher species whose mother is fully owned by a Jew or Jews. An unblemished firstborn male was given to a kohen who brought it as an offering in the Beis Hamikdash. Its meat was eaten by the kohen and his family anywhere in Yerushalayim when they were tahor, and the kohen was able to share it with any tahor person, similar to the laws of a shelamim.

If the bechor is blemished, the halachah is unlike other korbanos, where the blemished animal is redeemed with redemption money that is used to purchase a replacement korban. The owner of a blemished bechor gives the animal to a kohen, who now owns it as his personal property, although he is still forbidden to work the animal and may use it only to slaughter for meat. It is one of the matanos kehunah, the gifts provided to the kohen, so that he can devote himself to his responsibilities as a teacher of the Jewish People. Should the kohen choose to, he may sell it to someone else. There are some other specific laws regarding where it may be slaughtered and how it may be sold, but it may be eaten by anyone, even a person who is tamei.

Temurah of bechor

We have now seen that the korban of bechor is unusual, in that a blemished bechor loses some of its sanctity as a korban and as a result is slaughtered and eaten. The temurah of a bechor, therefore, also has halachic status different from other temuros. The owner gives the temuras bechor to a kohen, who sends the animal to pasture until it develops a blemish, at which point he may slaughter it and consume it (Mishnah Temurah 21a).

Temuras maaser

When the Beis Hamikdash stood, every farmer was required to gather all his newborn kosher animals three times a year and send them though the opening of a pen, one at a time. The farmer counted each animal aloud, and marked each tenth animal exiting the pen with a red mark (Mishnah Bechoros, Chapter 9). This tenth animal has the halachic status of maaser, which is a type of korban. One could not work this animal. Instead, the owner was required to bring it to the Beis Hamikdash, where it was offered as a korban. The owner received most of the meat of this korban, which he was required to eat in Yerushalayim.

This korban shares many halachos with the bechor mentioned above. For example, just as a blemished bechor is not redeemed but is slaughtered and eaten, so too, a blemished maaser is slaughtered and eaten.

There is a difference between the bechor and the maaser, in that the owner is required to give the bechor to a kohen, whereas the maaser he keeps for himself.

There is a similarity between the temurah of bechor and that of maaser in that the temurah is not offered, although it, also, may not be worked, but one waits until it develops a blemish, at which point it can be slaughtered and eaten. In the case of maaser, the owner keeps the animal which he now may eat.

With this information, we can now answer the question asked above:

“Why does the Torah mention the mitzvah of temurah twice at the end of this week’s parshah, once at the beginning of Chapter 27 and again at its end?”

Checking the two pesukim, one will see clearly that the first verse (Vayikra 27:10) is addressing temurah of most korbanos, whereas the second verse (Vayikra 27:33) is addressing the temurah of a maaser animal. As Rashi explains on the latter verse, the halachah of temurah for maaser is different from that of other korbanos, which are usually either offered as a korban or redeemed. Whereas it has the sanctity of a korban, the temurah of a maaser prohibits only working the animal. One awaits its developing a blemish, and then slaughters it for its meat.

Who can make temurah?

A person cannot create a temurah unless he is the owner of a korban. This means that if Jerry walks down the street one day and decides that he wants to substitute a different animal for Yosef’s korban, no temurah has happened. Yosef has to make the temurah for his own korban, or, alternatively, authorize someone to make temurah on his korban.

Who is the “owner” of a korban?

Technically, the person who creates the temurah does not have to be the person who originally declared the animal to be a korban, although temurah can be declared only with the authority of the “owner” of the korban, meaning the person who is to benefit from its offering. If one person declared an animal to be a korban for the benefit of another, it is the beneficiary of the korban who is considered its “owner,” not the donor. Therefore, if the beneficiary of the korban subsequently decided to substitute a different animal, he will violate temurah and both animals will become sanctified, whereas if the donor did so, he did not violate temurah, and only the original animal has the sanctity of the korban. In the latter case, the replacement animal has no sanctity at all and can be worked with or used as one chooses.

Temurah on birds?

The laws of temurah apply only to animal korbanos and not to korbanos of birds or of flour (Mishnah Temurah 13a). Therefore, if someone who has turtledoves set aside for his offerings decided to substitute something, whether a bird, an animal or anything else for the turtledoves, he has not violated the prohibition of creating temurah. Since the declaration was totally ineffective, the original turtledoves will be offered and the substitute animal or bird has no sanctity whatsoever.

Unusual temurah laws

There are several curious aspects to the laws of temurah and sanctifying offerings. One can create a temurah only when the original offering is owned by an individual, but not when it is a communal offering (korban tzibur) or even when it is a korban owned by two or more partners (Mishnah Temurah 13a). Notwithstanding the fact that one cannot make such a temurah, the Rambam (Hilchos Temurah 1:1) rules that one who attempts to substitute an animal for a communal korban violates the Torah’s prohibition and incurs the punishment of malkus. Nevertheless, since the temurah is completely ineffective, the new animal has no sanctity whatsoever. (The original animal is also, of course, not affected, and it is offered as the korban for which it was intended.)

Multiple temurah

Someone can even create several temurah animals at the same time. For example, if the owner tried to remove the sanctity of the original animal by substituting two or more animals in its place, all the new animals become consecrated as korbanos, and the original animal still retains its korban status (Mishnah Temurah 9a).

Negligent temurah

One of the interesting laws of temurah is that someone can create temurah even though he did not intentionally violate the Torah’s prohibition (Temurah 17a; Rambam, Hilchos Temurah 1:2; Tosafos, Temurah 2a s.v. Ha). For example, someone who did not realize that temurah is prohibited will still have created two animals that are holy.

Minor temurah

Here is another unusual aspect to the laws of Temurah. The Gemara teaches that, under certain circumstances, an eleven-year-old girl or a twelve-year-old boy can declare an animal to have the sanctity of a korban, provided that he or she is the owner of the animal (Temurah 2b). This is true even though they are halachically minors and not obligated to observe mitzvos.

The Gemara (2b) discusses whether a minor who can consecrate a korban can also create a temurah. This is highly surprising; a minor cannot violate the prohibition of creating temurah, one would think that he cannot create a temurah either. Evidently, the creation of a temurah is not dependent on violating the prohibition of temurah.

Conclusion

Do we live with a burning desire to see the Beis Hamikdash rebuilt speedily in our days? Studying the halachos of the korbanos should help us develop our sensitivity and desire to see the Beis Hamikdash again in all its glory. May we soon merit seeing the kohanim offering all the korbanos in the Beis Hamikdash in purity and sanctity and Klal Yisrael in our rightful place in Eretz Yisrael as a light unto the nations!



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The Bankrupt Borrower

This week’s parsha, Behar, includes details about being honest in our business dealings. Is declaring bankruptcy to absolve one of one’s debts, considered honest according to halachah?

The Bankrupt Borrower

Mr. Gomel Chessed shares with his rav, Rav Chacham, the following predicament: “I loaned someone money, and I did not hassle him for payment when he told me that things were tough. Recently, I contacted him to ask if he is in any position to pay back. He replied that he was forced into bankruptcy and thereby absolved all his debts. Does he, indeed, no longer owe me for the loan?”

Gomel’s rav explains that although the Gemara and the Shulchan Aruch do not recognize a concept called bankruptcy, there are authorities who contend that, at least in some circumstances, halachah requires that a bankruptcy court’s decision be honored. Gomel is eager to hear the full explanation, so his rav provides him with some background material to read until they make an appointment to discuss the matter at length.

Gomel truly enjoyed researching the topic, and discovered that he also wanted to know all the related subjects. As a result, he became somewhat of an expert on much of the halachic material germane to his question.

Responsibilities of a Borrower

One of the first topics Gomel researched was the extent that a borrower must go to pay his debts. He was surprised to discover how strongly halachah requires someone to repay his debts and to make his payments on time. In addition, it is strictly forbidden to claim that one is unable to pay a debt when he can, and it is similarly forbidden to hide money so that a creditor cannot collect. This is true even if the creditor is very wealthy.

It is forbidden to borrow money that one does not think he will be able to repay. According to some authorities, money borrowed under the false pretense that the borrower intends to repay it is considered stolen, and not borrowed, funds. The halachic ramifications of this distinction are beyond the scope of this article.

If a debtor’s loan is due and he cannot pay, halachah requires that he sell his house, his furniture and his other household items, if necessary, to repay the debt, unless he can convince his creditor to forgive the debt or to wait longer for payment (Graz, Hilchos Halvaah 1:5).

Since the debtor must use whatever money he has available to pay his debt, he is required to trim his expenditures so that he can pay his creditor. Until his debt is repaid, he may not make significant contributions to tzedakah (Sefer Chassidim #454). Furthermore, he may not purchase a lulav and esrog, but instead must fulfill the mitzvah by borrowing from someone else (see Pischei Teshuvah, Choshen Mishpat 97:8). It goes without saying that luxuries and vacations are out. Someone who uses his money to purchase non-essential items when he has an overdue debt demonstrates a lack of understanding of the Torah’s priorities. One who squanders money and therefore is unable to repay his loans is called a rosho (Rambam, Hilchos Malveh 1:3).

Systematic Collection

Having researched how responsible a debtor must be, Gomel next studied the following topic: If a debtor unfortunately owes more money than he can pay, how does the halachah decide that we divide the debtor’s limited financial resources among his creditors?

Gomel discovered that the halachos governing who collects first are highly complicated. He also discovered that, when there are insufficient financial resources to pay all of the person’s debts, halachah views the priorities of who receives, and how much, very differently from civil law. Here are some basic ideas.

The Gemara works with a concept called shibud by which most debts are automatically secured with property that the debtor owned at the time he created the obligation. When this system was followed, if a debtor defaulted on an obligation, a creditor who exhausted all means of collecting directly from the debtor’s holdings could collect these secured debts from real properties that the debtor once owned and had subsequently sold. The system in place allowed that potential purchasers could find out whether a property had a lien on it prior to purchasing it. (This would loosely parallel what we call today a “title search” performed before purchasing property to ascertain that the property is without any liens and that the seller has clear ownership.) The potential lien on all the properties of a debtor encouraged people to pay their debts so that they could sell their properties more easily, and also enabled people to borrow investment capital.

Who Collects First?

Under the Gemara’s shibud system, when there are two or more claims on a property whose value is less than the outstanding debt, the creditor with the earliest claim collects as much as he can, and, after his claim is paid, the creditor with the next earliest claim collects, and so on (Shulchan Aruch, Choshen Mishpat 104:1).

When Gomel asked contemporary halachic authorities if this system is used today, he was told that one would not be able to collect from such properties unless they were mortgaged.

Why did the halachah change?

Since today no one applies the system of the Gemara, the creditor did not expect to be able to collect from any properties after the debtor sells them. As a result, the creditor did not acquire shibud on any of the debtor’s properties (Shu’t Igros Moshe, Choshen Mishpat 2:62).

Bad Talmudic debts

When there is no shibud claim on any properties, then, under the Gemara’s system, the outstanding creditors collect, but not proportional to the amount that each is owed. According to most authorities, we still follow whose claim is earliest. Others rule that everyone is paid equally according to the availability of resources (Shulchan Aruch, Choshen Mishpat 104:13 and Sma). Either approach results in a major difference between the Gemara’s system and the modern approach. Under the modern approach, the court calculates what is the ratio of the available resources to the debt, and pays all creditors a percentage of the debt based on the result.

By now, Gomel has studied much of the Gemara and commentaries on the topic of debt collection, and he has a good idea how bad debt was collected in the time of the Gemara. After reviewing his studies with Rav Chacham, Gomel is ready to understand how and if bankruptcy fits into a halachic system. He soon discovers that he now needs to master a very complicated concept of halachah called dina demalchusa dina.

Dina Demalchusa Dina

In the time of the Gemara, most countries and governments were kingdoms. This meant that the people living in an area recognized one individual to be responsible to maintain law and order within the country and to protect the citizenry from external enemies and greedy neighbors. Without a government, people are in constant danger from the chaos that occurs when there is no respect for a central authority. To quote the Mishnah in Pirkei Avos (3:2), “Pray for the peace of the kingdom, for if people are not afraid of it, one man will swallow another alive.” Anyone who has ever seen or read of the mass looting that transpires when there is a breakdown of authority knows exactly what this means.

The king or government requires an army to protect the country from its external enemies, a police force to uphold law and order, and royal palaces and government offices that are well maintained so that the king’s authority is respected. All this requires funding, and the people realize that they need to pay taxes so that the king and/or government can protect them (see Rashbam, Bava Basra 54b s.v. VeHa’amar). The halachah of dina demalchusa dina recognizes that the king and his properly appointed agents have the right to collect taxes (Nedarim 28a).

Din Melech

When the tribes of Israel approached their prophet, Shmuel, requesting that he appoint a king, Shmuel attempted to dissuade them by noting the tremendous power that a king has. He will draft the most talented sons to till his fields, harvest his crops and perform other services; he will draft their daughters as perfumers, bakers and cooks; and he will raise high taxes (Shmuel I 8:11-18). The Gemara (Sanhedrin 20a) cites a dispute as to whether a Jewish monarch has the extensive authority that Shmuel describes or if Shmuel was simply threatening the people in an attempt to dissuade them from having a king. The Rambam (Hilchos Melachim 4:1) and most authorities rule that the king indeed does have this authority.

Some poskim understand that a non-Jewish king, also, draws his authority based on this concept of din melech. That is, the Torah reserved the rights described by the prophet Shmuel for any monarch. (Even for those who contend that Shmuel was merely threatening the people and that the king does not have this extensive authority, the concept of dina demalchusa dina is still accepted; they simply do not consider the din melech of Shmuel to be the source of the law of dina demalchusa dina.)

Democratic taxes

Although the early authorities discuss dina demalchusa dina primarily in terms of the rights of a king, most later authorities understand that this halachic power exists equally in a democracy (see Shu’t Yechaveh Daas 5:63).

Gomel discovered that the vast majority of halachic authorities regard dina demalchusa dina as a Torah-mandated concept (see Shu’t Dvar Avraham 1:1; Avnei Meluim 28:2; Shu’t Chasam Sofer, Yoreh Deah #314), although there is a minority opinion that contends that dina demalchusa dina was introduced by Chazal (Beis Shemuel, 28:3).

Many authorities rule that a king may not arbitrarily create new taxes; he may only collect that which has been previously established (Ritva, Nedarim 28a; see lengthy list in Encyclopedia Talmudis, Volume 7, page 318, footnote 559). Why is this true? When people appointed the original king to protect them, they accepted certain taxes with which to pay him for his “services.” According to these rishonim, neither this king nor his successors have an arbitrary right to create new taxes or increase taxes without the consent of the governed.

Traffic and safety regulations

Thus far, we have seen that dina demalchusa dina governs the right of the king or the government to collect taxes. Dina demalchusa dina also requires obeying rules of the government, such as the prohibitions against smuggling and counterfeiting. However, dina demalchusa dina goes much further. Some authorities maintain that dina demalchusa dina requires everyone to obey government-created rules that are clearly for the common good (Ramban, Bava Basra 55a). One may argue that this includes traffic laws, and regulations governing sanitation, safety and health. Those who do not agree that dina demalchusa dina extends this far feel that dina demalchusa dina is limited to matters that more directly affect the government (see Maggid Mishnah, Hilchos Malveh 27:1). All opinions agree that dina demalchusa dina applies to matters which breach the authority of the governing parties (Igros Moshe op. cit.). The exact extent to which this is applied practically will affect Gomel’s original question, whether dina demalchusa dina applies to bankruptcy law.

No government influence

What areas of halachah are not subject to dina demalchusa dina?

Dina demalchusa dina does not replace the civil laws of the Torah (the laws of Choshen Mishpat) that govern the relationships between Jews (Shu’t Harashba 3:109, quoted by Beis Yosef, Choshen Mishpat end of Chapter 26; Shach, Choshen Mishpat 73:39). For example, dina demalchusa dina does not affect the laws of inheritance. These laws are governed by the Torah’s laws of yerushah.

Similarly, the laws of damages (nezakin), the laws of shomrim – responsibility for taking care of someone else’s property – and the property laws involved in  marriage are all areas of halachah in which Jews are required to follow the laws of the Torah. Therefore, when a Jew lends an item to another, the laws governing his responsibility are those of the Torah, not the local civil code. This is because it is no infringement on the government’s authority when people make their own arrangements as to how to manage these areas of their lives (Igros Moshe).

Government Influence

On the other hand, there are certain areas of contract law that are heavily influenced by dina demalchusa dina. For example, the laws of employee relations are governed by local custom (Yerushalmi, Bava Metzia 7:1), and these are usually heavily influenced by civil law.

What about Bankruptcy?

As I wrote above, the Gemara and the Shulchan Aruch do not mention any concept of bankruptcy. Gomel began to research if anyone discusses whether or not halachah recognizes the laws of bankruptcy under the laws of dina demalchusa dina. Indeed, he discovered a dispute among great authorities of the late twentieth century whether dina demalchusa dina applies to the laws of bankruptcy. In a responsum, Rav Moshe Feinstein rules

that dina demalchusa dina applies only to matters in which the government takes an interest because they may affect the stability of the country. For example, if the country does not have consistent markets, this could create problems that the government wants to avoid. Therefore, the government has a halachic right under dina demalchusa dina to insist that its laws insuring stable markets are followed.

Rav Moshe concludes that the laws of bankruptcy are within the parameters of dina demalchusa dina, since the government has a right to insist that there be a consistent rule of law applied throughout the country regarding how bad debts are discharged.

In the case brought before Rav Moshe, a company had gone bankrupt, and the directors had paid one of its creditors for his outstanding debt in violation of the bankruptcy rulings. The question was whether the individual was required to return the money that he had been paid because of dina demalchusa dina. Rav Moshe ruled that if the company had already filed for bankruptcy when this money was paid, then the creditor is halachically required to return the money. This is because dina demalchusa dina establishes the regulations how one may pay once one has filed for bankruptcy.

We find responsa from two prominent European authorities, Rav Yitzchak Weiss (Shu’t Minchas Yitzchak 3:134), then the av beis din of Manchester (and later the Gaon Av Beis Din of the Eidah HaChareidis in Yerushalayim), and from Rav Yaakov Breisch of Zurich, Switzerland (Shu’t Chelkas Yaakov 3:160). (It is interesting to note that these two great poskim were mechutanim.) From the limited description of the cases that each responsum contains, it seems that they were asked concerning the same situation:

Reuven advanced Shimon a personal loan, and Shimon subsequently declared bankruptcy. As required by law, Shimon had notified all his creditors, Reuven included, that he had filed for bankruptcy protection and that Reuven had the right to protest the bankruptcy arrangements. Reuven did not protest the bankruptcy proceedings, which ultimately ruled that Shimon was required to pay only thirty cents per dollar owed to his creditors.

Subsequently, Reuven sued Shimon in beis din for the entire loan. Shimon contended that he is not required to pay Reuven any more than the thirty cents to the dollar that the bankruptcy court ruled that he was required to pay. Reuven, the creditor, claimed that he had never forgiven any part of the loan. He claimed that he did not protest the bankruptcy proceedings for several reasons, among them that he was unaware that a personal loan which was not meant for profit is included in bankruptcy proceedings.

The rav who was asked the shaylah referred it to these well-known poskim. They both contend that dina demalchusa dina does not apply to bankruptcy procedures. In their opinion, dina demalchusa dina never supplants an area of halachah where the Torah provides its own guidelines.

They do agree that if there was evidence that Reuven had accepted the court’s ruling, he would no longer be entitled to full payment, because he had been mocheil, forgiven, the balance of the loan. Once someone is mocheil a loan or part of a loan, he cannot afterwards claim it. However, they contend that in the situation at hand, there is no evidence that Reuven was ever mocheil the balance of the loan.

It would seem from Rav Moshe Feinstein’s responsum that he would have ruled differently and contended that once the court declared Shimon bankrupt, Reuven would have been obligated to honor the court’s decision because of dina demalchusa dina.

At this point, Gomel sat down to discuss with Rav Chacham whether his own debtor can claim protection from the balance of his loan because he has declared bankruptcy. According to the Chelkas Yaakov, the Minchas Yitzchak, and other authorities, the debtor has no basis for claiming bankruptcy protection. According to Rav Moshe Feinstein, one would have to check with an attorney whether the debtor’s bankruptcy protects him legally from Gomel’s loan even though Gomel was not informed of the bankruptcy proceedings. Assuming that the bankruptcy proceedings can, indeed, protect the debtor, it would seem that, according to Rav Moshe and some other authorities, the debtor has grounds to his argument.

Conclusion

Lending money is a valuable mitzvah. When someone fulfills the mitzvah of lending money to a fellow Jew, he is not providing a gift, but a loan that he has a right to expect will be repaid. As the Tanna, Rabbi Shimon, notes in the second chapter of Pirkei Avos, “the evil path from which a person should distance himself” can be explained easily in the words of Dovid Hamelech: The wicked borrow and do not repay; whereas the righteous is gracious in his giving. Someone who borrows must always have a plan how he intends to return the funds.

HaRav Abba Berman zt”l, An Appreciation

This Shabbos is the ninth yahrzeit of Rav Abba Berman, zt”l. I decided to send the hesped that I wrote shortly after his passing.

Rav Abba Berman once explained that superficial learning is like watching the hands of a clock move around its dial. In-depth learning, which he felt is the goal of all learning, is like “opening the back of the watch to see what makes it tick.”

What did he mean by this mashal?

The goal of learning is to understand the ideas and concepts of Torah – in its totality, what its “parts” are, and how the parts integrate to produce the result. Rav Abba was vexed by those who gave over ideas without understanding the concepts thoroughly. He devoted himself and his shiurim to develop a deeper and broader understanding of Torah. His yeshiva and the seforim he wrote were called “Iyun HaTalmud” because that is exactly what his goal was; one must strive to understand why the concepts and ideas of Torah are what they are. Even a gezeiras hakasuv, a Torah decree, must be understood, according to Rav Abba, – what exactly is the concept that the Torah is introducing to us, how does it work, and what are its ramifications.

In his own words, his shiurim tried to define the mechanism of how Torah concepts work, to understand what “makes the din tick.”

In the words of a close talmid, “Two people look at and appreciate a beautiful flower. Although both of them appreciate the beauty, one of them may be able to appreciate the subtleties, intricacies and complexities of the flower, compare it to other species and varieties, and savor the subtleties of its fragrance. So, too, Rav Abba taught how to be a Torah connoisseur – how to appreciate the depth and breadth of Torah, how to understand its beauty and ramifications in greater and greater ways.”

With this introduction, we can begin to appreciate the greatness of HaRav Abba Berman zt”l.

AS A YOUTH

He was born on Tu B’Shvat 5679 (January 16, 1919) in Lodz where his father, Rav Shaul Yosef Berman, a talmid of the Chofetz Chaim, was Rosh Yeshiva of Yeshivas Toras Chesed. Rav Abba’s rebbe was his father, whose influence lasted for the rest of his life.

Without any question, Rav Abba was a child prodigy, yet I hesitate to tell the astounding story of his meeting as a six year-old with the Chofetz Chaim. The Chofetz Chaim tested the young child on all of Perek HaMafkid in Gemara Bava Metzia and then gave him a bracha and some advice to his father. However, in a way it is a disservice to relate this story because one might assume that Rav Abba was too brilliant a genius for us to learn from. This was the exactly the opposite of what Rav Abba desired in life, which was to teach people to toil attentively and honestly over a sugya of Gemara with common sense, constantly delving into a deeper understanding of the subject.

At the age of 14 he left Lodz to attend the Mir Yeshiva in Poland. He developed a close relationship with the mashgiach, Rav Yerucham Levovitz zt”l, possibly the greatest mussar personality of his generation. Although Rav Yerucham passed away when Rav Abba was only 17, he always considered himself a talmid of Rav Yerucham, whose world-view he absorbed.

SHANGHAI AND CHIDDUSHEI RABBEINU CHAIM

During the war years, Rav Abba was part of the Mir Yeshiva exile in Shanghai. Although he grew tremendously in learning during his years in Shanghai, those years took a tremendous toll on his health, which affected him the rest of his life. He had prodigious achievements in learning and teaching Torah despite the fact that he always suffered from medical problems that needed constant attention.

In Shanghai, he began developing his distinctive derech halimud (approach to learning). There he became absorbed with the sefer Chiddushei Rabbeinu Chaim HaLevi of Rav Chaim Brisker. Rav Abba drew upon and developed concepts from Rav Chaim and incorporated them into his understanding of the Gemara and Rishonim.

It was known in Shanghai that if you did not understand something in the works of Rav Chaim Brisker, the address to seek was Rav Abba Berman, then known as “Abba Lodzer,” after his birthplace, as was common in that era. In Shanghai he developed into one of the Gedolei Yisroel.

Due to his own profundity, his diligence, and his application, Rav Abba often recognized deeper concepts in the writings of Rav Chaim than others did. He considered himself a disciple of Rav Chaim, because studying Rav Chaim’s sefer deepened his own understanding of the concepts of Shas. One might say that the entire publication of the Chiddushei Rabbeinu Chaim was worthwhile just to make it available to Rav Abba Berman.

ROSH YESHIVA

After the war, Rav Abba joined the Mirrer Yeshiva in Brooklyn, married, and gave chaburahs and said shiurim there. After giving shiurim in Kaminetz and other yeshivos, he then opened his own yeshiva, Iyun HaTalmud, first in Brooklyn, then in Bnei Brak, Far Rockaway, and later in Monsey. In Elul 5739/1979 he moved the Yeshiva back to Eretz Yisroel, to Yerushalayim. Later he moved it to Kiryat Sefer. Although he was offered positions in many yeshivos over the years, he preferred (until his last years) having his own yeshiva where he could alone decide what, how, and where to teach.

He once told a talmid that he had considered naming the Yeshiva “Yeshivas VeHa’er Eineinu B’Sorasecha,” “Open our eyes in Your Torah,” which describes our goal to appreciate Hashem’s Torah in deeper and deeper levels. However, because the name was a bit long, he decided instead to name the Yeshiva “Iyun HaTalmud,” which emphasizes the method — appreciating Hashem’s Torah by utilizing our own efforts to delve into it deeper and deeper. His view was that man accomplishes his greatest purpose on Earth and fulfills ratzon Hashem by learning the concepts of Shas as deeply as he can.

A seasoned Talmud chacham who came to study under Rav Abba found that it took him several years until he could understand Rav Abba’s profound shiur. However, during the same period of time he would regularly attend the chazarah shiur, which reviewed Rav Abba’s shiur in a simplified way, but for years he could not see what the chazarah shiur had to do with the shiur he had heard earlier in the day from the Rosh Yeshiva. After many years of hearing Rav Abba’s shiur, and as the depth of his own learning developed immeasurably, he began to understand Rav Abba’s shiur. After several more years, this Talmud chacham began to give the chazarah shiur, although he relates that it took him approximately six hours to review Rav Abba’s 1¼ hour-long shiur until he felt ready to repeat the shiur! Yet he felt the investment of most of his day extremely worthwhile because that was how he achieved proper understanding of Torah.

A talmid once spent the month of Elul studying in Rav Abba’s yeshiva, but he missed the bekiyus (breadth of Torah knowledge) style of his previous yeshiva. He went to discuss the matter with Rav Nochum Pertzovitz, Rosh Yeshiva of the Mir, who advised him to remain learning in Rav Abba’s yeshiva, saying “What could be greater bekiyus than mastering the basic understanding of Bava Kamma.”

(One should not get the impression that Rav Abba was opposed to bekiyus. Quite the contrary, he himself reviewed Shas and Rishonim until most of it was in front of his eyes. However, Rav Abba viewed bekiyus as the foundation with which to understand Amkus HaTorah, the deep true understanding of Torah, which was his passion.)

To Rav Abba, all of Torah is one contiguous whole. It was anathema to develop an idea that was inconsistent with a principle elsewhere. Quite the contrary, a concept that elucidates one part of Shas might clarify a seemingly unrelated subject. In so doing, he developed his own nomenclature and his own system of understanding.

Rav Abba was a master of saying things punctiliously and was extremely careful in his choice of words when he gave a shiur. He only included a line of logic in a shiur if he was convinced that it was completely accurate. He once remarked to a talmid that he would think through a svara 30 or 40 times before saying it over in a shiur.

Rav Abba used the late commentaries and the published shiurim of the Roshei Yeshiva judiciously. Sometimes he began with their concepts and then developed the idea into a brilliant analysis of the concepts. At other times, he would spare no words in pointing out that he felt the true understanding of the sugya lay elsewhere.

GOALS OF LEARNING

It was not Rav Abba’s goal to have talmidim memorize his shiur; he wanted them to absorb his APPROACH at analyzing the Gemara to its deepest concept.

In the week after his passing, two talmidim were discussing a shiur that one had delivered in the Yeshiva where he is currently a Rav. The Rav mentioned that he had given a shiur based substantially on a shiur printed in one of Rav Abba’s seforim, then added, “Assuming I understood the Rosh Yeshiva correctly.” The other talmid replied, “Either you told over Rav Abba’s torah, or you explained what you thought is the correct understanding of the sugya. The latter is what Rav Abba wanted even more, and is a greater achievement of his goal.”

Rav Abba did not tolerate lazy thinking. One must fully understand what one says. A Talmid chacham interested in joining Kollel Iyun HaTalmud told Rav Abba a shiur that he had delivered in his previous kollel. Rav Abba heard his shiur, and then responded, “If you would learn by me, you would never talk like this.” The kollel scholar was baffled by the response, because the shiur had been well received in his previous kollel. He requested to share with Rav Abba a different shiur he had delivered and received the same response.

Ultimately, Rav Abba accepted this talmid chacham into his kollel. Years later, when he told me the story, he explained, “I thought that I understood what I was saying. But when I began to study under Rav Abba, I realized that this man REALLY knows what he’s talking about – and that I had been totally superficial in my understanding without realizing it. I may not understand him, but I know that he knows what he is talking about. After years of studying under Rav Abba I realized that my whole thought process had changed. Rav Abba taught me how to truly understand what I was learning.”

His talmidim usually spent many years studying in his yeshiva. His yeshiva was always small, but it included a very impressive group of top talmidim, who today are accomplished roshei yeshiva, roshei kollel, magiddei shiur, and dayanim.

HIS IMMERSION IN LEARNING

To say that Rav Abba was a tremendous masmid is not sufficient. It is more appropriate to say that he was totally immersed in learning and that he constantly applied himself to delve deeper and deeper into understanding Shas. He thought in learning constantly — his lips were constantly moving. Presumably, he was constantly thinking of a deeper way to understand the sugya that he was learning at the moment.

MUSSAR

Rav Abba was a true talmid of the mashgiach, Rav Yerucham zt”l, and delved into hashkafah subjects with the same enthusiasm and analysis that he studied halacha and lomdus. He taught how to be deep in one’s hashkafah and how to intensify one’s avodas Hashem. For many years he gave chaburos on emunah, hashkafah, and philosophical subjects on Shabbos afternoon. In his younger years, he also gave musar schmoozen in the Yeshiva. His schmoozen were not fire and brimstone, but shiurim on deep machshavah. He would devote a series of schmoozen to developing one’s thoughts on a specific topic.

He was also readily available and accessible to his talmidim to discuss any topic at all. Although his own world was totally devoted to understanding Shas better, he was a big pikeach in understanding people.

HIS SEFORIM

Five volumes of Rav Abba’s shiurim were published in his lifetime, under the titles Shiurei Moreinu HaGaon Rabbi Abba Berman or Shiurei Iyun HaTalmud. Technically the seforim were authored by his talmidim based on notes and tapes of his weekly shiur klali, but I was told that Rav Abba reviewed the shiurim before publication. This does not include the “blatt shiurim” that he gave, nor is it more than a fraction of the shiurei klali that he delivered, and certainly does not include notes on other parts of Shas. Hopefully, we will be zocheh to see the publication of many more volumes of his shiurim.

One of the five volumes is unique. Although all of his years as Rosh Yeshiva he gave shiurim only on Nashim and Nezikin, his personal favorite seder was Kedoshim. At one time, a chaburah of advanced talmidim in his kollel learned kedoshim, and then he gave chaburos to them on Mesechta Zevachim. One volume of his published chiddushim is taken from these shiurim.

HIS FAMILY

Rav Abba and his Rebbitzen, tichyi, raised a European-type home in the United States at a time when the prevailing environment, even among frum Torah Jews, was highly permissive. His daughters were taught to stand up for him as is correct according to halacha. They were taught to plan their schedules so as not to disturb his learning. They absorbed none of the liberal attitude towards Yiddishkeit of the “frum” world around them — and this is manifest in their own highly notable achievements.

Rav Abba had six daughters. In a humorous moment, Rav Abba once quipped to a talmid, “You get to choose your sons-in-law but not your sons. His six sons-in-law are all tremendous talmidei chachomim, marbitzei Torah, magiddei shiur and roshei yeshiva in yeshivos in America and Eretz Yisroel. Truthfully, his daughters are all n’shei chayil, well-recognized and respected as top mechanchos.

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This Torah Article is Dedicated

Leilui Nishmas
Devorah bas Yaakov ע”ה
Olga Simons
By Her Granddaughter

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