Do I Have to Tell the Truth?

A person must maintain total integrity in all his dealings – after all, we are commanded to act like Hashem in all our deeds, and Hashem’s seal is truth (Shabbos 55a). Furthermore, someone who is meticulously honest and truthful will merit receiving the Presence of the Shechinah.

The Gemara (Sanhedrin 103a) teaches that habitual liars will not merit receiving the Shechinah’s Presence. This is derived from the pasuk, “Dover shekarim lo yikon l’neged einai,” “He who speaks lies shall not remain steadfast in My sight” (Tehillim 101:7). A person who gains nothing from his lies and simply has no regard for telling the truth is included in the “kat shakranim” (pack of liars) who will not merit meeting Hashem (Shaarei Teshuvah 3:181; 186) in the World to Come. This category includes people who fail to keep their word (Shaarei Teshuvah 3:183).

Truth is so important that the Gemara teaches, “Hafoch b’neveilasa v’lo seifoch b’milei,” “Turn over a carcass, and do not turn over your words,” (Pesachim 113a). This means that it is preferable to do unpleasant, malodorous work rather than talk deceitfully.

Therefore the Torah warns, “Midvar sheker tirchak,” “Distance yourself from falsehood,” (Shemos 23:7). Nowhere else does the Torah command that we must “keep distant” from an activity (Sefer HaChinuch #74), which emphasizes how far we must keep from falsehood (Mesilas Yesharim, Chapter 11). Even taking credit for something that one did not do is considered a falsehood (Shaarei Teshuvah 3:184). Similarly, regarding chinuch, we are taught, “Do not promise something to a child without giving it to him, because this teaches him to lie” (Sukkah 46b).

In addition to the halachic requirement of being meticulously honest, there is also a tangible benefit in being known as someone who always tells the truth.  As the Gemara points out, “Someone who lies is not believed even when he tells the truth,” (Sanhedrin 89b).

WHY MAY I MODIFY THE TRUTH?

Notwithstanding how important it is to tell the truth, there are situations where the Torah allows being imprecise to avoid damage. In other words, despite the importance of being truthful, there are other values which the Torah considers even greater. Although, in general, the Torah does not accept that the end justifies the means, and one is normally not permitted to do something wrong in order to accomplish a positive result, digression from the truth is permitted at times, since the alternative may cause greater harm. For example, it is more important to avoid machlokes, embarrassing someone or hurting his feelings or reputation than it is to tell the entire truth (Bava Metzia 23b with Rif and Tosafos). When placed in a situation in which telling the truth will cause one of these negative results, one must find an alternative solution.

Even in these situations, changing the truth should be a last resort. When the situation can be resolved without telling an untruth, one must choose the alternate path. Furthermore, it is preferable to give a truthful answer that omits the harmful information rather than modify the truth (see Chofetz Chayim, Hilchos Rechilus 1:8). However, if there is no choice other than modifying the truth, one is required to do so.

WHEN MAY ONE MODIFY THE TRUTH?

There are five situations when modifying the truth is permitted. They are:

1. SHALOM

One is required to avoid dispute or ill feeling, even if it requires distorting the truth. This includes situations where telling the truth will result in lashon hora. Therefore, if someone is asked, “What did so-and-so say about me?” and the true answer to this question will result in lashon hora or ill feeling, one may not give a complete answer. As mentioned above, it is preferable to answer in a way that is not an outright untruth, such as telling the part of the story that has no negative ramifications. If there is no choice, one must offer a fabrication, rather than telling the truth that includes lashon hora or creates machlokes (Chofetz Chayim, Hilchos Rechilus 1:8).

It should be noted that when there is no way to avoid modifying the truth for the sake of shalom, it is not only permitted, but obligatory (Rif, Bava Metzia 23b).

Here are some examples. Reuven refused to lend Shimon money because he felt that Shimon was a credit risk. (One is not required to lend money if there is valid reason to suspect that it will not be repaid. I discuss the details of this halacha in a different article.) Later, Shimon discovered that Reuven loaned money to someone else and asked Reuven why his (Shimon’s) request was turned down. To avoid hurting Shimon’s feelings or creating machlokes, Reuven may tell him that he had no money available to lend at the time. As mentioned above, this approach should be used only as a last resort. It is preferable for Reuven to change the subject or respond to the answer in a different inoffensive way that is not a fabrication.

For the same reason (to avoid hurting a person’s feelings), it is permitted to praise a person’s performance to make him/her feel good, even if the performance was actually mediocre (Kesuvos 17a). Similarly, if someone purchased a new garment, one should tell the purchaser that it looks great, even if one thinks the opposite.

What happens if someone asks you how her new dress looks because she values your judgment? If the dress does not look nice, and the situation can be modified (such as, the dress can be tailored or exchanged) then one should give appropriate advice. However, if there is no option to do anything with it, you should remark that it looks nice. After all, there are certainly some people who will think it looks nice on her.

2. MODESTY

It is advisable to act humbly and to answer questions modestly. For example, if a Torah scholar is asked how much he knows of Shas (the entire Talmud), he is permitted to say that he is familiar with a few mesechtos (tractates), even though he actually knows the entire Shas thoroughly (Rashi, Bava Metzia 23b). This statement is permitted, even though it implies that he does not know most of Shas and it is, technically, not true. It should be noted that modifying the truth in this situation is not required, but merely permitted (Rif to Bava Metzia 23b; Sefer Hassidim #1061 states that it is preferable not to tell a lie in order to be modest, but instead, to change the subject).

Likewise, one should be careful not to boast or advertise the chesed that one performs. Someone who is asked about his chesed activities should downplay his role and understate his involvement.

If a posek is asked whether he is qualified to answer a certain shaylah, he should answer truthfully, but not boastfully. He can say something like, “There are people who ask me shaylos,” or “Rav so-and-so told me that I may” which, if said in a humble tone of voice, is informative and not boastful. In this situation, underplaying his knowledge is counterproductive, since the person who has a shaylah will not feel comfortable to ask (Tosafos, Bava Metzia 23b s.v. b’mesechta).

Similarly, a person who is heavily involved in chesed projects is permitted to describe his full role in order to encourage other people to be involved as well.

Someone who observes a halachic stringency (a chumrah) must try to keep this a secret. One is even permitted to give a false reason for one’s behavior, rather than explain that he observes a chumrah (see Brachos 53b).

For example, let us say that one follows a particular chumrah and he is invited to attend a simcha where one’s chumrah is not observed. Or alternatively, one is invited to a simcha where one has qualms about the kashrus standard maintained by the hechsher, and therefore one has chosen not to eat there. One should try to hide the fact that one is not eating. If someone else notices that one is not eating, one may explain that he attended another simcha earlier and had already eaten. One may say this even if he did not attend a simcha that night and ate at home, since this statement is true (he has attended other simchos previously). This is better than saying that one’s stomach is upset (when it is not), which is an outright untruth. However, if a person feels that the only excuse he can use is that his stomach is upset, he is permitted to do so.

3. TO SAVE SOMEONE FROM EMBARRASSMENT

If necessary, one may modify the truth to save a person from an embarrassing situation or to protect privacy. Therefore, if someone asks me a question that infringes on my privacy, I may give him an untrue answer, if there is no other way to avoid the situation without being offensive (Bava Metzia 23b). It is usually better to give an untrue answer than to point out that the question was inappropriate, which might embarrass the person who is asking.

Similarly, if I am asked about my own or someone else’s personal habits, I may modify my answer, if the truth could reveal private information that I do not want to divulge (Maharal, Bava Metzia 23b).

One may modify the truth to save oneself from embarrassment, even if he himself caused the uncomfortable situation. For the same reason, if I am asked a question on a Gemara to which I do not know the answer but should, I may reply that I have not learned that Gemara recently, even if I have (Rambam, Hilchos Aveidah 4:13).

Although it is permitted to modify the truth to save oneself from embarrassment, it is not preferred behavior (Orach Meisharim). Of course, the best thing is to know the Gemara adequately enough to answer the question (Kiddushin 30a).

It is forbidden to give an untrue answer if it deceives or causes someone financial harm. In financial matters, one must be absolutely truthful. Therefore, it is prohibited to deny having broken someone’s property to avoid paying for it. It is also prohibited to deny breaking it even if one’s goal is to avoid embarrassment, if this might exempt one from paying for the broken item.

It is forbidden to mislead a person. It is therefore prohibited to tell the boss that one is late to work because of a fictitious traffic tie-up.

There is no heter whatsoever to mislead in Beis Din, even if I am convinced that I am in the right and the other side is misrepresenting the facts. (It is permitted to say that the other side is fabricating information.) Money received through a din Torah because of misrepresentation is stolen money (Urim V’Tumim 34:1). Furthermore, a lawyer or to’en rabbani (rabbinic legal adviser) who suggests that someone withhold information in order to “win the case” violates several serious prohibitions.

4. PROTECTING SOMEONE

One may modify the truth to protect a person from harm or to prevent him from sinning. Again, the halachic principle is that in this instance the end (avoiding sin) justifies the means (altering the facts).

A few examples will clarify what we mean. An unsavory or untrustworthy person asks you where you were a guest last Shabbos, because he wants to invite himself to the same host. Since the results may be detrimental to the potential host, you may tell the "guest" that you ate at home. Early poskim describe the following situation: “If someone is asked how he was received as a guest, he may lie so that the host does not become inundated with more guests than he can afford” (Rashi, Bava Metzia 24a). This does not mean that the guest says that he was ill-treated, which would be lashon hora, but that he should imply that he was treated in a nice, but not spectacular, way (Maharal).

Similarly, if I am asked by someone who is a bad credit risk where he can borrow money, I may tell him that I don’t know, rather than putting potential lenders in an uncomfortable position, or having them lend money to someone when they should not.

It is permitted to modify the truth to prevent someone from sinning. In this context, there is a halacha that many people find surprising. You find yourself in a situation where a person thinks that what he is doing is permitted, but you know that it is definitely forbidden. You know that the perpetrator will not accept your halachic opinion unless you quote it in the name of a well-known posek. It is permitted (but not required) to quote the psak in the name of a well-known posek (even if he said no such thing), in order that the person accept what you say and not sin (Shabbos 115a).

The Gemara records several instances of this ruling. In Rav Yehudah’s house, they used to cut up vegetables on Yom Kippur afternoon so that they would be ready to serve immediately following the fast. (In pre-refrigeration days, vegetables cut up before Yom Kippur could spoil by the end of the fast.) Rav Yehudah noticed that the vegetables were being cut in a way that violated the halacha, but was uncertain whether he would be obeyed. In order to stop the practice, he told them that he had received a letter from Rabbi Yochanan prohibiting it. Several similar stories are told in the Gemara (Eiruvin 51a; Pesachim 27a; Beitzah 20a; see Magen Avraham, Chapter 156).

Under the category of protecting people from undesirable situations, the Gemara tells us a very interesting story about the great tzaddik, Iyov. When he heard about a widow who wanted to remarry, but was not receiving any shidduch suggestions, Iyov would advertise that she was his relative, in order to improve her shidduch prospects (Bava Basra 16a).

If I am asked questions that will lead in an undesirable direction, it is permitted to modify the truth in order to politely cut off the questioning. The Gemara tells us the following story: Alexander the Great (whom the Gemara calls “Alexander the Macedonian”) once met the Talmudic scholars of the Negev and asked them several philosophic questions. When he asked them whether light or darkness was created first, they answered that this question has no answer. The Gemara points out that although a pasuk (Bereishis 1:2-3) clearly states that darkness existed before light, the scholars refrained from answering Alexander to forestall his discussing questions that might lead to blasphemy (Gemara Tamid 32a).

Therefore, if you know that someone may turn the conversation toward a topic that you would not wish to discuss, you should change the subject or say that you do not know the answer to the question.

5. EXAGGERATION

It is permitted to exaggerate, even though the literal meaning of one’s words are inaccurate. So long as one’s intent is clear, this is neither deceptive nor dishonest, but simply an accepted way of expression. Therefore, it is permitted to say that something has happened “millions of times”, since everyone understands that this is an accepted, commonly used exaggeration. Similarly, it is permitted to call a fellow Jew “my brother,” since all Jews are related and, furthermore, we are all brothers in mitzvos. It is also permitted to call a student “my son,” since the pasuk refers to our students as our children (Shabbos 31a).

With a similar line of reasoning, some contemporary poskim justify the widespread practice of printing wedding invitations with a schedule, when everyone knows that the chupah will take place later than the time printed on the invitation. Since it is known that the time on the invitation is earlier than when the simcha will take place, and is intended to give people a sense of approximately when the simcha will actually transpire, this is considered an exaggeration that does not violate the mitzvah of being truthful.

There are a few other instances where one is permitted to say something even though the literal meaning of one’s words is not exactly true. Following a halachic discussion with his disciples, Rabbi Akiva said that the halacha was according to the opinion of one of the students, although it was obvious to all of them that it was otherwise. In the context of the discussion, stating that the halacha was the same as his student’s ruling meant that the student’s reasoning was very solid, and the compliment would encourage the students to study with more enthusiasm (Eiruvin 13a).

An opposite pedagogic usage is found in a different Gemara (Moed Katan 16a). Bar Kappara, one of Rebbe’s disciples, once said something disrespectful about Rebbe. Realizing that he had a halachic responsibility to reprimand Bar Kappara, the next time Bar Kappara came to visit Rebbe, Rebbe told him “Aini makircha mei’olam,” “I have never met you.” Bar Kappara understood that Rebbe did not want to have anything to do with him, as if they had never met. Bar Kappara repented and Rebbe befriended him once again.

However, how could Rebbe make an untruthful statement? Because Bar Kappara understood Rebbe’s intent, this was not regarded as an untruth. Furthermore, Rebbe’s words, “Aini makircha mei’olam,” could also mean, “I do not truly know who you are,” words that are actually very truthful.  Does any one human being ever really know another? (Orach Meisharim). Incidentally, we see that even a statement like this, which was fully understood, should preferably be expressed in a way that has a truthful meaning as well.

CONCLUSION

As we can see, the halachos of telling the truth are far more involved than most people realize.

Those who tell the truth will receive the Presence of the Shechinah. Many special blessings are bestowed on someone who is meticulous about telling the truth only as required by halacha.

Rav Yaakov Kamenetsky was once asked why he lived so long. (We see in Gemara discussions that this is a topic worthy of discussion.) After contemplating the question for a while, Rav Yaakov reluctantly answered, “Probably, in the merit of the fact that I have never told a lie”.

The Gemara tells about the community of Kishuta where everyone was very careful to never lie. In reward for this, none of them ever died prematurely (Sanhedrin 97a).

Why is telling the truth a zechus for longevity?

As mentioned earlier, someone who is meticulously honest and truthful will merit receiving the Shechinah’s Presence. The pasuk in Mishlei (16:15) teaches, “B’or pnei Melech chayim,” “Those who are in the light of the King will live.” Furthermore, Hashem’s brachos rest on those who imitate His ways, and His essence is truth (Sefer HaChinuch #74). Therefore, those who live with meticulous honesty are rewarded to live long productive lives (Orach Meisharim).

May we all merit this reward!

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!

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.

Yonasan, who was originally adopted by non-observant parents, called me with the following shaylah:

“My parents, meaning the couple who adopted me, eventually divorced, and later my father remarried, although there was a halachic problem with his second marriage. My adoptive father was a kohen, and his second wife, Martha, was a divorcee. Recently, my father passed away. My father’s final will, which was drafted when he was ill and very dependent on Martha, was completely different from his previous will, and left virtually all his property to her. Uncle Jack, my adoptive father’s brother, is very upset about the will, believing that this was certainly not my father’s intention, and that it can be overturned in court. This would make me the legal heir to my father’s estate, although halachically, I am not his son. Uncle Jack wants to file a lawsuit over the matter; however, he has no legal recourse to do so, since the civil law does not consider him my father’s heir. May I file a lawsuit to overturn the will?”

This shaylah is indeed as complicated halachically as it sounds, and actually involves three different areas of halacha:

I. Who is the heir?

II. What is the halachic status of a will?

III. May one file the lawsuit in secular court?

In addition, there is a fourth halachic issue that must be addressed, a question of yibum, which I will discuss later.

I will explain each area of halacha mentioned above in order to explain the procedure that I suggested that Yonasan follow.

I. Who is the heir?

Although civil law considers Yonasan the child of his adoptive parents for all matters, including his being their legal heir, the adoption did not make him their biological son. Indeed, the Gemara states that someone who raises a child is considered as if he had given birth to him;^[1] however, the adopted child does not inherit, unless he receives the property as some form of gift, as I will explain.

Thus, although Yonasan is his father’s legal heir (from a civil law perspective, if we ignore the will), halacha does not consider him an heir automatically, unless his father gave him the property in a halachically correct will. Since the existing will made other accommodations, Yonasan receives nothing from his father’s estate halachically, neither as an automatic heir nor as the receiver of gifts through his father’s will. Thus, Yonasan cannot make a financial claim against his stepmother for his father’s estate, since it does not belong to him. If the will is valid, then the property belongs to Martha, his stepmother. If the will is invalid, the property belongs to Uncle Jack.

Why Uncle Jack?

If a man dies without biological children and makes no halachic provisions for his estate, then his closest heir is his father, who, in this case, is already deceased. The next closest relative is any surviving brother. In this case, there is one biological brother of the deceased, Uncle Jack. Thus, he is the halachic heir of Yonasan’s father, and if indeed the will is halachically invalid, the property halachically belongs to him, although he may not be able to take possession of it according to civil law.

Halachically, a woman does not inherit from her husband as next of kin. Instead, the Torah gives her the rights of the kesubah, provides that she may live in her late husband’s house and guarantees her income and support from his property. Martha is entitled to these financial rights if she was halachically married to Yonasan’s father, even if the marriage fell into the category of a halachically prohibited marriage. (One method whereby Martha and Yonasan’s father could have been halachically married in a prohibited marriage would be if they had deceived an Orthodox rabbi, dishonestly getting his agreement to perform their ceremony. There are others.) Thus, if Martha proves that she was halachically married to Yonasan’s father, she will be entitled to this support, even though she was a divorcee and he was a kohen.^[2]

II. Is the will valid?

According to civil law, a person has the right to choose his heirs and thereby to choose to whom he distributes his earthly wealth after passing on. However, according to the Torah, a person does not have the ability to choose his heirs, nor can he arrange to give away property after death. When a man dies, the Torah instructs us how to distribute his assets, through the laws of yerusha.

How can someone leave his property to his adopted child?

There are methods whereby one can transfer his property to his adopted child, or to anyone else, for that matter, who is not a halachic heir. One method is to draw up a will, and then make a kinyan that transfers possession of the bequeathed property to the beneficiary of the will. (I mention this method as a possible illustration, since it does not work in all situations.) This can be done in a way that the person wishing to bequeath his property maintains ownership over it in the meantime and leaves him the right to change his bequest later. Some poskim, albeit a minority, contend that a legally valid will alone constitutes a kinyan. These authorities reason that arranging a legally valid will, knowing that the government will transfer property as a result, is halachically equivalent to making a kinyan.^[3] However, most poskim maintain that a standard civil will is not halachically valid.

Yonasan’s father was not observant and did not have his lawyer make the will halachically valid. (Unfortunately, many observant Jews do not attend to this important matter either. Just as it is important for a person to have a will drawn up, it is important to make sure that it is halachically valid.) Therefore, many poskim would consider Uncle Jack to be the halachic heir of the estate, yet he cannot file a civil suit concerning the property, since he is not an interested party according to civil law. But before we even get to this step in the discussion, we need to discuss whether the Torah permits Yonasan or Uncle Jack to sue in civil court.

III. Arka’os, the prohibition against filing a suit in a secular court.

A Jew may not litigate against a fellow Jew in civil court,^[4] even if both parties agree.^[5] This is known as the prohibition against using arka’os. Someone who uses court systems not sanctioned by the Torah performs a chillul Hashem, a desecration of G-d’s Name, because he demonstrates that he feels that G-d’s Torah cannot resolve his financial matters.^[6] In the words of the Rambam,^[7] “Whoever has his case judged by non-Jewish laws or courts, even if their laws are the same (as the Torah), is a rasha. It is as if he blasphemed and raised his hand against the Torah of Moshe Rabbeinu.”^[8] Someone who brought litigation to a secular court is invalidated from being a chazzan for Yomim Nora’im.^[9] In addition, he will probably transgress the violation of stealing (gezel), since the property he receives is not his according to halacha.

What if the Other Party Refuses to Go to Beis Din?

This problem is, unfortunately, neither uncommon nor recent, and apparently occurred even at the time of the Gemara.^[10] If this happens, the halachically correct procedure is for the plaintiff to have beis din summon the defendant. If the defendant fails to appear in beis din or indicates that he will not appear, the beis din authorizes the plaintiff to sue in civil court.^[11] Under these circumstances, the plaintiff has not violated the prohibition of going to arka’os, since he acted according to halacha.

(It should be noted that even if someone is authorized to sue in civil court, he is only entitled to receive what halacha entitles him. It could happen that the civil court awards him more money than he is entitled to according to halacha. Therefore, he should ask a posek after winning the litigation how much of the award he may keep. The balance he would be required to return to the other party.)

Applying these rules to our case means that Uncle Jack may file a suit in beis din against Martha. Although Uncle Jack would like Yonasan to sue in civil courts, Yonasan may not sue according to halacha for two different reasons:

(1) One may not sue in civil court without permission from beis din.

(2) Yonasan has no halachic grounds to claim his adopted father’s estate since he is halachically not an heir.

Does this mean that this was the end of the case?

No. Yonasan explained to Uncle Jack the halachic background to the shaylah. Uncle Jack feels strongly that Martha took unfair advantage of his ill brother, which is the reason why he and his attorney feel that the will can be easily overturned in civil court. Uncle Jack then asked Yonasan if there is any way that Yonasan could proceed with the claim.

Harsha’ah

Enter harsha’ah, which is the halachic equivalent of a power of attorney, into the picture. A harsha’ah allows someone who is not an interested party in the litigation to sue as if he is an interested party. In this instance, Uncle Jack, as the halachic heir, can authorize Yonasan by means of a harsha’ah to sue Martha in beis din. If Martha ignores the summons or indicates that she will not respond to it, the beis din authorizes Yonasan and Uncle Jack to pursue the matter in civil court. The court will not accept Uncle Jack as a plaintiff against the will, since they do not recognize him as the heir. Although the court does not recognize Uncle Jack’s claim, Yonasan may now sue in civil court, based on the beis din’s authorization. Halachically, the basis of the civil suit is to save Uncle Jack the money that is his, even though neither the civil court nor Uncle Jack himself accepts that the money is his.

At this point in the discussion, Yonasan e-mailed me a further question:

“Dear Rav Kaganoff,

“In the event that my uncle does choose, with permission from a beis din, to sue my father’s widow in civil court, *should* I or merely *may* I act on his behalf?”

Indeed, this is a difficult question. In general, saving someone’s money is a mitzvah, and therefore, if someone sued in beis din and was ignored, it is a mitzvah to help him save his money in civil court, providing that this approach was properly authorized by beis din. This act of chesed is included under the mitzvah of hashavas aveidah, returning a lost object to its proper owner.

In our instance, I was less certain if this is considered hashavas aveidah, since Uncle Jack does not consider the money his and is only planning to give it to Yonasan. Is Yonasan required to assist in helping Uncle Jack claim the money, knowing that Uncle Jack will probably assume that it is Yonasan’s and give it to him? Furthermore, since there might be poskim who feel that the money is legitimately Martha’s, one could certainly rely on their opinions to rule that it is not a requirement for him to be involved in the litigation. Thus, there are two different considerations as to why he may not be considered “saving someone’s money”:

(1) Can you say that he is saving someone else’s money, when that person intends to give it to him?

(2) According to some opinions, the money may not be Uncle Jack’s, but Martha’s. Although he is permitted to follow the opinion that the money is Uncle Jack’s, is he required to?

Another consideration: Chalitzah

At this point in the discussion, I introduced a new topic to Yonasan, that of the mitzvah of chalitzah. This requires some explanation. If a man dies without having biological children, there is a mitzvah for his brother to perform a procedure called chalitzah, which permits the widow to remarry. In addition, the chalitzah is a tremendous tikun neshamah for the departed. The mitzvah applies even if the widow is no longer of child-bearing age, and even if the couple married after she was beyond child-bearing age.

Many people do not realize that, if a couple has adopted children, but no biological children, the mitzvah of chalitzah still applies. Since Yonasan’s father had no biological children, his widow (assuming that they were halachically married, as she claims) is a yevamah, who requires chalitzah from Yonasan’s uncle to permit her to remarry.

I quote my letter to Yonasan:

“If your father’s marriage to his last wife was halachically valid, then there is a requirement/mitzvah for your uncle to perform chalitzah,^[12] even if your father’s widow has no intention of remarrying and is not observant.”

Yonasan replied:

“I’m surprised it didn’t occur to me.  Question, though — even if they did get married with chuppah and kiddushin, she was a grusha, and he a kohen, so the marriage was forbidden.  He claimed to have asked a rabbi, who permitted the marriage on the basis that since he was disabled, he would not be allowed to perform the avodah, even if the Beis HaMikdash was standing. I did not think this is correct [indeed it is not], but I didn’t see any point in making an issue of it.  Was he right?  Assuming that his marriage was halachically unacceptable. Would that in any way impact on chalitzah?"

To which I replied:

“There is absolutely no halachic basis to any of the reasons he told you to permit this marriage. I presume that he mentioned these reasons to relieve his own conscience, and that he never asked a shaylah; halachically, he was prohibited from marrying a divorcee.

“A halacha-abiding rabbi would not perform such a ceremony, unless he was unaware either that your father was a kohen or that his wife was a grusha. However, even if there had been no proper halachic ceremony, they might have been considered married according to halacha, particularly since they considered themselves married. Thus, although this marriage was forbidden, there may be a requirement to perform chalitzah. The mitzvah of chalitzah applies even in the case of a kohen who marries a divorcee.^[13] Is there anyone where they live knowledgeable enough to arrange this for them?”

Yonasan responded to my inquiry:

“There are some very prominent talmidei chachomim living near where both my uncle and my stepmother live.  However, they live a considerable distance from one another. I doubt that the widow is aware of the need for a chalitzah; I also doubt that she’ll object to it if it’s made easy for her. My uncle is, however, totally irreligious. How would I get him to agree to it and to travel the distance involved? He is unlikely to drop everything and fly to where she is to perform what he would see as an unimportant religious ceremony to help out a woman with whom he is upset.  What if he were to appoint someone else as a shaliach over the phone?  Would that be acceptable?”

To which I responded,

“Unfortunately, chalitzah cannot be performed through shelichus (agency). It sounds as if the most likely way for this to happen is to wait until a time that you know that they will be near one another  and then plan carefully how to present it to them. Alternatively, simply mention to them that chalitzah is a big tikun neshamah for your father, whom they both liked (I presume), and ask if they can keep it in mind in future travel plans.

"By the way, the mitzvah is your uncle’s mitzvah to perform, not hers.”

As of this writing, I do not know if Yonasan decided to proceed with the litigation over the will, and I presume that no action has resulted concerning the chalitzah. However, this situation affords us the opportunity to discuss halachos with which many people are unfamiliar, and it provides a tremendous opportunity to make people aware of a number of different mitzvos.

It is important to realize that legal rights and responsibilities are never governed by secular law. A Torah Jew realizes that Hashem’s Torah is all-encompassing, and that halacha directs every aspect of one’s life. Thus, halacha governs all financial aspects of our lives, and one should be careful to ask shaylos about one’s business dealings.

Indeed, through this entire halachic conversation, I was exceedingly impressed by Yonasan’s ability not to be swayed by financial considerations, but to be certain that what he did would be the perfectly correct approach halachically. In fact, he was shortly thereafter awarded a tremendous financial windfall – no doubt, for his adherence to halacha, despite whatever financial temptation existed.

^[1] Megillah 13a; Sanhedrin 19b

^[2] Mishnah Kesubos 100b

^[3] Shu’t Igros Moshe, Even HaEzer 1:104

^[4] Gittin 88b

^[5] Ramban, beginning of Parshas Mishpatim

^[6] Midrash Tanchuma, Mishpatim #3

^[7] Hilchos Sanhedrin 26:7

^[8] See also Rashi’s comments on Shemos 21:1

^[9] Mishnah Berurah 53:82

^[10] Bava Kama 92b, as explained by Rosh

^[11] Shulchan Aruch, Choshen Mishpat 26:2

^[12] Mishnah Yevamos 20a

^[13] Mishnah Yevamos 20a

Does a publisher have rights protecting him so that he has the opportunity to recoup his investment? Assuming that such rights exist, do they apply in all cases, or only if it is a new publication? For how long are his rights protected?

Does the Torah have a concept of intellectual property rights, meaning that someone who creates or invents an item is owner of his invention?

WHAT RIGHTS DOES THE PUBLISHER HAVE?

One of the earliest published responsa on this subject deals with a very interesting sixteenth century case. One of the gedolei Yisrael of the time, the Maharam of Padua, Italy, entered a partnership with a non-Jewish publisher in Venice to produce a new edition of Rambam. Maharam invested a huge amount of time checking and correcting the text for this edition, included notes of his own, and apparently also invested significant amounts of his own money in the undertaking. A competing publisher, also a non-Jew, produced an edition of Rambam (without Maharam’s corrections and notes) at a greatly reduced price, apparently out of spite that Maharam had engaged his competitor. It appears that the second publisher might have been selling the set of Rambam at a loss with the intent to ruin the Maharam financially. The halachic question was whether an individual may purchase the less expensive edition of the second publisher.

The shaylah was referred to the Rama for decision, who ruled that the second publisher’s actions constitute unfair trade practices. Rama prohibited purchasing or selling the competing edition, until the Maharam’s edition was sold out. Realizing that the non-Jewish publisher would not obey his ruling, Rama reinforced his ruling by placing a cherem (decree of excommunication) on anyone selling, buying or abetting the sale of the competing edition (Shu”t Rama #10). This was an effective way of guaranteeing that Jews did not purchase the less expensive (but inferior) edition.

The Rama’s ruling established a precedent. Subsequent to Rama’s ruling, it became common practice for publishers to include in their works a cherem (plural: charamim) from a well-known posek banning the publishing of the same sefer, usually for a period of six to twenty-five years. As a matter of fact, these charamim were the main reason why publishers sought haskamos when they published seforim. The purpose of the haskamah was that they included charamim, to make it financially worthwhile for the publisher to invest the resources necessary to produce the sefer. Thus, these charamim encouraged publishing more seforim and the spread of Torah learning.

Generally, these charamim protecting the publisher’s rights were accepted and obeyed. However, in the early nineteenth century, an interesting dispute arose between the Chasam Sofer, the Rav of Pressburg, and Rav Mordechai Benet, the Rav of Nikolsburg, germane to the production of the famous Roedelheim machzorim. Two competing editions of these machzorim were produced, the first by Wolf Heidenheim, who had invested much time and money gathering and comparing the texts in old editions and manuscripts. A Jewish publishing house located in a different city subsequently published a competing edition. Prior to Heidenheim’s issuing the machzorim, several prominent rabbonim had issued a cherem banning other publishers from competing.

The Chasam Sofer prohibited the second publisher from selling his machzorim and similarly banned people from purchasing them (Shu”t Chasam Sofer, Choshen Mishpat #41, #79). In his opinion, this case is halachically comparable to the edition of Rambam produced by the Maharam Padua.

Rav Benet disagreed, contending that there were several key differences between the cases. In his opinion, it is unnecessary to guarantee publication of machzorim by issuing charamim. Machzorim are a common item, and publishers know that they will profit from producing them. Thus, the entire purpose for which these charamim were created, to guarantee the production of seforim, does not apply. Furthermore, since non-Jewish publishers will certainly produce machzorim, issuing a cherem against competition will benefit the non-Jewish publishers, who will be faced with less competition, more than it will benefit a Jewish publisher, such as Wolf Heidenheim. In addition, Heidenheim’s first edition had already sold out, and charamim traditionally ended when the edition was sold out, assuming that one edition was sufficient to guarantee a publisher sufficient profit to make it worth his while. In addition, Rav Benet questioned whether the system of charamim was still appropriate, once the government had established its own rules and laws of copyright infringement (Shu”t Parashas Mordechai, Choshen Mishpat #7, 8).

The Chasam Sofer countered that since Heidenheim had invested time and money in checking and correcting texts, his business interest should be protected to a greater degree, and that Heidenheim should qualify under a special halachic dispensation allowed for those guaranteeing that Torah texts are accurate (see Kesubos 106a). As a result, the Chasam Sofer contended that Heidenheim’s monopoly should be allowed for the entire twenty-five years decreed in the original cherem, even after he had sold out his first edition.

DOES HALACHA RECOGNIZE INTELLECTUAL PROPERTY AS OWNERSHIP?

This shaylah came to the forefront in the middle of the nineteenth century, also as a result of a din torah. Around 1850, a printer named Yosef Hirsch Balaban published a large-size edition of Shulchan Aruch with major commentaries, accompanied for the first time by the anthologized commentary, Pischei Tshuvah. Balaban was sued in beis din by a printer named Avraham Yosef Madfis who claimed to have purchased exclusive rights to Pischei Tshuvah from its author. (I am uncertain whether "Madfis" was indeed his family name, or whether this referred to his profession.) At the time, Pischei Tshuvah had been printed only once, in a small-size edition, including only the Shulchan Aruch and one other commentary, the Be’er Heiteiv. Madfis claimed that Balaban had violated his (Madfis’s) exclusive ownership rights to Pischei Tshuvah.

The Rav who presided over the din torah, Rav Shmuel Valdberg of Zalkava, ruled in favor of Balaban for the following reason. The original edition of Pischei Tshuvah did not include any statement placing a cherem against someone printing a competing edition. Rav Valdberg contended that this voided any copyright on Pischei Tshuvah. Furthermore, Rav Valdberg included two more reasons to sustain his ruling. One, the original edition of Pischei Tshuvah was no longer available. Thus, even had a cherem banned a competing edition, it would have already expired once the first edition had sold out. Second, even if the first edition was still available for sale, Balaban’s reproducing Pischei Tshuvah as part of a multi-volume set of Shulchan Aruch was not competition for the original edition, where Pischei Tshuvah had been published as a small, presumably inexpensive sefer. Rav Valdberg reasoned that no one interested in purchasing Pischei Tshuvah would likely purchase Balaban’s edition of Shulchan Aruch just for that purpose; instead he would buy the small edition (assuming it was available). Thus, he did not consider Balaban’s edition to be unfair competition for those looking to purchase Pischei Tshuvah.

According to Rav Valdberg’s analysis, the author of Pischei Tshuvah has no greater ownership to his work than someone publishing a different person’s work. His latter two arguments, that the first edition was already sold out and therefore the cherem expired, and that the multi-volume set does not compete with the one volume edition, would both be preempted if we assume that the author retains ownership over his work. Thus, Rav Valdberg did not believe that halacha recognizes intellectual property rights.

The Sho’eil uMeishiv (1:44) took issue with this point. In a letter addressed to Rav Valdberg, which he subsequently published in his own responsa, he contended that the author of a work is its owner. Thus, Pischei Tshuvah retains his rights as author/owner whether or not a cherem was declared against competition. A cherem is to guarantee a publisher enough time to recoup his investment. An author is an owner, not an investor, and maintains ownership over the item produced, which he is entitled to sell, regulate, or contract. This is called intellectual property rights.

Upon reading the Sho’eil uMeishiv’s ruling, Rav Yitzchok Shmelkes, wrote him that he disagreed with Sho’eil uMeishiv’s reasoning (Shu”t Beis Yitzchok, Yoreh Deah 2:75). Beis Yitzchok contends that halacha does not recognize intellectual property rights as inherent ownership. In Beis Yitzchok’s opinion, the author has a right of ownership, but only because it is accepted by government regulation, which is termed dina dimalchusa dina, literally, the law of the government is binding. Although halacha does not usually accept non-Jewish legal regulations, a civil law established for the wellbeing of society is usually accepted. Since intellectual property rights encourage initiative and invention that are in society’s best interests, halacha accepts these ownership rights to the extent that they are recognized by civil law.

There are several key differences between the position of Sho’eil uMeishiv and that of Beis Yitzchok. According to Sho’eil uMeishiv, the ownership of an author exists forever, just as any other property that he owns. Upon his passing, they are inherited by his heirs, just like his other property. However, in Beis Yitzchok’s opinion, the ownership rights extend only according to what is established by government regulation and expire after a number of years. Moreover, in most countries, a copyright is valid only if registered, and it must also be indicated in the published work. Presumably this was not true in the Beis Yitzchok’s place and time, since he applied civil copyright law to Pischei Tshuvah, even though the author had not indicated any copyright in the sefer.

Thus, whether halacha recognizes intellectual property ownership is disputed.

Some authorities rally evidence that the Chofetz Chayim agreed with the Sho’eil uMeishiv’s position. The Chofetz Chayim left specific instructions detailing who owns the publishing rights to his seforim after his passing. He instructed that his seforim on loshon hora could be freely republished, and that Mishnah Berurah may be published by anyone, provided that 4% of its volumes printed are donated to shullen and batei medrash. However, he stipulated that most of his seforim could not be republished without permission of his family members, and that the proceeds from such publication should succor his widow for the rest of her life. Chofetz Chayim’s instructions imply that he considered his ownership to be in perpetuity. Furthermore, Chofetz Chayim did not publish any words of cherem or copyright inside his seforim. Thus, he seems to have presumed ownership over future editions of seforim on the basis of intellectual property (Shu”t Minchas Yitzchok 9:153), although it is possible that he based it on dina dimalchusa dina, following the opinion of Beis Yitzchok.

If one reads the haskamos on sefarim, published from the time of the Rama until the close of the nineteenth century, one notices that this dispute between the Sho’eil uMeishiv and the Beis Yitzchok seems to have been fairly widespread. For example, when the Chavos Yair published his own responsa, all the haskamos allow his copyright rights against someone else publishing his own responsa for a limited period of time. According to the Sho’eil uMeishiv’s opinion, the Chavos Yair should have owned these rights forever!

On the other hand, when a new edition of Shu"t Rivash was published in the 1870′s, it included a very extensive index that included all the places that the Rivash is quoted by the Beis Yosef and other halachic authorities. The edition contained three haskamos: from the Netziv, from Rav Yitzchak Elchanan Spector and from the Malbim. All three include a cherem against anyone publishing the Shu"t Rivash for six years, but explicitly mention that the ownership of the newly created index is the property of the publisher forever and may not be reproduced without his permission. They clearly are recognizing intellectual property rights in halacha.

Thus, we see interesting historical precedent both in favor of and in opposition to whether halacha recognizes intellectual property. Some of these factors are included when debating the role of copyright violation in halacha today.

2. When (at what stage in the developing relationship) is one required to inform about the
issue?

3. Whom one must tell.

I was asked this question recently:

Mrs. Weiss (not her real name) called me to discuss the following sensitive matter:
“I was once treated successfully for a serious disease. My grandmother had the same
illness, yet lived in good health to a ripe old age. The doctors feel that my daughter
should be checked regularly from a fairly young age for this same disease. She is now
entering the shidduchim parsha. Must I reveal this family information to shadchanim
(matchmakers) and/or to the families of potential chassanim, and, if so, at what
point must I disclose this information? I am truly concerned that this could seriously
complicate her shidduch possibilities.”

Although this situation may be atypical, we all have medical, personal, and/or
genealogical issues that we wish to keep private. What information must we reveal while
arranging shidduchim for our children (or for ourselves)? And at what point must we
disclose it?

The prohibitions of Geneivas daas, misleading someone, and Onaah, fraud, apply equally
to shidduchin. However, there are many complicating factors involved in shidduchin, and
therefore we need to explain:

ONAAH — FRAUD

Misrepresenting a product or service in order to make a sale is a form of cheating, such
as painting an item to hide a defect. A modern instance of onaah is insider trading,
which means that someone purchases or sells a stock or commodity because he/she has
information, either positive or negative, about the stock, that is unavailable to the public.
This is dishonest because the other transacting party is unaware of this information which
affects the value of the item they are buying or selling.

In shidduchim the same rule is true: Subject to some exceptions, which I will explain
shortly, one must notify the other party of information that might concern them. Hoping

that no one takes this personally, I will refer to this type of negative information as
an “imperfection.” For example, Mrs. Weiss is inquiring whether the family medical
history is an imperfection that must be revealed.

MEKACH TA’US – INVALIDATING THE MARRIAGE

The most serious ramification of withholding required information about shidduchim,
or worse, of being deceptive, is that this can even result (in certain extreme cases) in a
halachically invalid marriage. (This indeed applies to any contracted arrangement – an
unrevealed serious imperfection brings about a mekach ta’us, because the two parties
never agreed to the arrangement as it indeed exists.)

Here are a few interesting examples:

If someone specifies that his new wife should have no vows (nedarim) and finds that she
is bound by neder to abstain from meat, wine or nice clothes, the kiddushin is annulled
(Kesubos 72b)! A husband wants that he and his wife enjoy life together, and refraining
from these activities may disturb the happiness of their marriage.

OTHER SERIOUS IMPERFECTIONS

To quote the words of the Sefer Chassidim (#507), “When arranging matches for your
children or other family members, do not hide medical issues from the other party to
which they would object enough to decline the shidduch, lest they afterward choose to
annul the marriage. You should also tell them about deficiencies in halachic observances
that are significant enough that the other party would have rejected the marriage.”

CAN’T SMELL

Another example of unrevealed information that invalidates a marriage is a woman’s
failure to notify her future husband that she has no sense of smell, since this flaw
hampers her ability to prepare tasty meals. Similarly, a profession that causes a man’s
body to have a foul odor is sufficient reason to invalidate the marriage (Kesubos 76a).

Withholding information concerning an inability to have children is certainly a mekach
ta’us. In this last situation, a physician who is aware that his patient cannot have children
is required to reveal this information to the other side, even though this violates patient
confidentiality (Shu”t Tzitz Eliezer 16:4). In the situation above, the physician was aware
that the young woman had no uterus, and therefore it was physically impossible for her
to conceive a child. He was also aware that they were hiding this information from the
prospective groom. The same would be true should the male be unable to have children,
since the assumption is that people of childbearing age marry intending to bear offspring
from the marriage.

WHAT MAY ONE HIDE?

What type of information may one withhold?
There are two categories of negative information, imperfections, that one does not need
to reveal. They are information that the other party could find out on one’s own, and
information that is not significant.

KNOWN INFORMATION

A seller is not required to disclose an imperfection in his product that the buyer could
discover on his own. Furthermore, as long as the buyer could have noticed something that
may arouse attention, there is no geneivas daas and no onaah in making the sale (Shu”t
Igros Moshe, Yoreh Deah 1:31).

For example, if someone is selling a house with a drop ceiling, he is not required to notify
the buyer that there was damage above the ceiling, since a drop ceiling in a residence
should arouse attention. Similarly, if the entire neighborhood is susceptible to flooding
basements, the seller does not need to mention that his basement has a severe water
problem. If the buyer asks directly, the seller must answer honestly.

Again, in regard to stock trading: The seller is not required to mention that in the last
recorded quarter the company reported a sharp decline in profits since this information is
readily available to the buyer.

A similar concept is true concerning shidduchim. For example, if the scandalous activities
of a family member are well known in one’s hometown, one need not tell the other party
since this information could be discovered by asking around (Shu”t Panim Meiros 1:35).
Halachically, when the other party asks neighbors for information about this potential
shidduch, the neighbors should share the requested details. This is a topic I intend to
discuss more fully in a future article.

INSIGNIFICANT INFORMATION

A second category of information that need not be revealed includes factors that are
insignificant to the buyer. One is not required to provide an in-depth list of every
shortcoming the merchandise has. Similarly, shidduchim do not require revealing
every possible medical or yichus issue. The Chofetz Chaim (Be’er Mayim Chaim #8 at
end of Hilchos Rechilus) distinguishes between a medical issue one must reveal and
a “weakness,” which one does not. Thus, someone need not reveal minor ailments that
would not disturb the average person.

Of course, it is sometimes difficult to define what constitutes a “minor ailment” and what
constitutes a serious one, and specific rabbinic guidance is usually warranted when one is
in doubt. However, I will present one or two examples of each.

Although I know rabbonim who disagree with this position, I feel that juvenile diabetes
is a malady that must be mentioned, whereas non-life threatening hay fever and similar
allergies may be ignored. On the other hand, an allergy that is so serious that it affects

one’s lifestyle and activities in a major way must be mentioned. My usual litmus test is: If
the issue is significant enough that one might want to hide it, it is usually something that
one should tell.

WHEN TO TELL?

At what point must one reveal a significant “imperfection”?

In most instances, there is no requirement to notify the other party or a shadchan of any
of these imperfections at the time a shidduch is suggested. The Sefer Chassidim, quoted
above, does not mention at what point one must notify the other party of the shortcoming.
Contemporary poskim usually contend that one should reveal this information after the
couple has met a few times; about the time the relationship is beginning to get serious,
but after the two parties have become acquainted and see their overall qualities as an
individual. This is the approach I personally advise in all such situations. There is no
requirement for the parties to tell a shadchan, and in some situations it is prohibited to do
so.

My daughter has a close friend who unfortunately has celiac. She had been told by her
rav that she should reveal this information on the third date. (Let me note that this exact
detail will vary tremendously on the dating approach used in the couple’s circles.) She
was so nervous and concerned how the guy would react, that she was unable to bring
herself to mention it then. Finally, on the fourth date, she was able to get the words out,
to which he reacted nonchalantly, “Oh, so does my brother.” This story has a very happy
ending, since her mother-in-law anyway prepares food that is appropriate.

REJECTION
However, if one knows that the other party will reject the shidduch because of this
imperfection, I would recommend forgoing this shidduch from the outset. For example,
if one knows that a particular family prides itself on a pure pedigree, don’t pursue a
shidduch with them if you know they will ultimately reject it when they discover that
your great-uncle was not observant.

At this point, we can discuss Mrs. Weiss’ shaylah asked above:

“I was once treated successfully for a serious disease. My grandmother had the same
illness, yet lived in good health to a ripe old age. The doctors feel that my daughter
should be checked regularly from a fairly young age for this same disease. She is now
entering the shidduchim parsha. Must I reveal this family information to shadchanim
and/or to the families of potential chassanim, and, if so, at what point must I disclose
this information? I am truly concerned that this could seriously complicate her shidduch
possibilities.”

Most poskim with whom I discussed this shaylah contended that one should reveal
this information to the other side after the couple has gotten to know one another
and is interested in pursuing the relationship. One rov disagreed, contending that

since the problem can be caught early and treated successfully, one need not divulge
this information at all. All opinions agree that one has absolutely no obligation to
mention this information to a shadchan or to anyone who has no personal need for this
information.

Obviously, I cannot possibly discuss the various permutations of these shaylos in an
article, but simply can present the issues. Wishing all much happiness in their marriages
and their children’s marriages!

Question #1: MYSTERY IN THE COATROOM

Our shul has coats, umbrellas and other items that have been sitting in the coatroom for months. We have hung notices asking people to check if they have any clothing there, but many items remain. The shul is now undergoing renovation which will ruin whatever remains. What can we do with the accumulated clothing?

Question #2: ON THE STREETS OF NEW YORK

Walking down a New York street, Suzie’s attention is attracted by a bag, bearing the logo of a seforim store, that is lying on a street corner. Opening the bag, she discovers a sefer that appears to have been purchased from that store and a handmade sweater. What should she do?

Shaylos like these happen to each of us almost daily. What rules govern what to do with found property?

In this week’s parsha the Torah teaches: You shall not see the lost ox or lamb of your brother and ignore them; you shall certainly return them to your brother. If your brother is not nearby or you do not know him, gather the animal into your house and it should stay with you until your brother inquires about it and you shall return it to him. So shall you do to his donkey and to his garment and any other lost item of his that you find; you may not ignore it (Devorim 22:1-3). The Torah here amplifies the mitzvah taught in Parshas Mishpatim where it states: If you will encounter the lost ox or donkey of your enemy, you shall certainly return it to him (Shemos 23:4).

Although the Torah discusses oxen, lambs and donkeys, the rules of lost objects apply equally to our modern shaylos. Assuming that you might be able to identify the owner of an item, you are usually required to pick up a lost item and return it to the owner. However, there are many details about these halachos that affect the shaylos mentioned above.

THE BASIC RULES

When must a finder pick up a lost item in order to return it, and when is retrieving it optional? When must he leave it untouched? When must he attempt to locate the one who lost it and when not? When may he keep a lost item and when not? The first step in understanding these complex rules is to understand the legal concept called ye’ush. Ye’ush is when a person despairs of retrieving his property. Here is an example:

Someone lost something in a place where whoever finds it will probably not return it — for example, in a city where most people do not return lost objects. Since the owner does not expect to recover his property, ye’ush transpires even though the owner could readily identify what was once his possession. In this case, the finder is permitted to keep the found object (Bava Metzia 24a). Why?

Ye’ush is halachically equivalent to relinquishing ownership. Since the owner already accepted the loss, the Torah does not require the finder to return the lost item. However, this applies only if the finder picked up the lost object after ye’ush took place. If the finder picks up the lost item after ye’ush, he is not required to return it, nevertheless, it is still preferable (lifnim mishuras hadin) to return the lost item to the owner (Bava Metzia 24b).

AN IMPORTANT EXCEPTION

Although a finder may keep an item after ye’ush, as I explained above, there is a very important caveat. He may only keep the lost item if he can assume that the owner has already found out about his loss and therefore was me’ya’eish, despaired from recovering it (Bava Metzia 21b-22b). However, if the finder picked up the lost object before ye’ush, he became obligated in the mitzvah of hashavas aveidah, and may not keep the item even after the owner despairs of recovery (Bava Metzia 26b). This is true even if the owner will be me’ya’eish as soon as he becomes aware of his loss. Since the owner is as yet unaware of his loss, he cannot consciously despair and create ye’ush. This situation is called ye’ush shelo midaas, a case where the despair is inevitable, but has not yet transpired.

YE’USH SHELO MIDAAS – “UNKNOWING” YE’USH

One of the debates that initiates many into Gemara study is the dispute between Abaye and Rava regarding ye’ush shelo midaas, a situation in which we know that the owner will be me’ya’eish as soon as he realizes his loss, yet as of this moment, he is probably still unaware of his loss. Abaye contends that ye’ush shelo midaas does not constitute ye’ush, because ye’ush does not make a lost object effectively ownerless until the owner becomes aware of his loss and despairs. Until this happens, the lost property still belongs to the first owner and the finder cannot take possession. Rava argues that ye’ush shelo midaas constitutes ye’ush: since the owner will certainly despair of recovering the property as soon as he realizes his loss, we assume that ye’ush has already transpired and a finder may keep the lost item (Bava Metzia 21b-22b).

How do we rule?

Although in the dozens of disputes between Abaye and Rava, Rava’s opinion usually wins, this is one of the six exceptions where the Gemara rules according to Abaye; ye’ush shelo midaas does not constitute ye’ush. Therefore, one cannot take possession of a lost item unless one can assume that the owner has already discovered his loss and despaired of its recovery.

Here is a practical case:

On the subway you see a frum but unfamiliar person rush off the car, forgetting her umbrella. Clearly, she will be me’ya’eish as soon as she realizes that she is missing her umbrella; nevertheless, according to Abaye you may not keep the umbrella unless you are certain that she has realized her loss before you picked it up. Before that time, the umbrella is still the property of the person who lost it and someone picking it up becomes responsible to try to return it.

How long must you wait to be certain that she discovers her loss? This depends on the circumstances. If the owner left the subway this moment and it is raining, you may assume she realized her loss as soon as she reached the street. However, if it is not raining, or she was transferring to another train, you must wait until it rains to assume that she has realized her loss.

May you leave the umbrella in its place? After all, the Torah states that you may not ignore a lost object.

The answer it that there is no requirement to pick up a lost item if there is no reasonable possibility that you will be able to locate the owner.

Must one abandon the umbrella? Halachically, one may not take possession of the umbrella, but can pick it up for the loser. However, once one picked it up, some poskim contend that one is responsible to hold on to it indefinitely. (In my opinion, one may take the umbrella and use it after following certain procedures which I discussed in the different article.)

We are almost ready to analyze what to do in the case-studies I presented at the beginning of the article. But first we need to explain one more principle.

SIMAN – AN IDENTIFYING MARK

When the Torah required returning a lost object, the Torah was primarily referring to an item bearing an identifying mark (a siman) since the owner may still hope to recover it (Mishnah Bava Metzia 24b). One who finds an object with a siman in a place with a substantial population of observant Jews should assume that the owner was not me’ya’eish. The finder must retrieve the item and return it to its owner. If the finder cannot readily identify the owner, one is required to announce it (Mishnah Bava Metzia 27b).

A siman is something that positively identifies an object as belonging to its owner (Shulchan Aruch Choshen Mishpat 267:4). It must be a feature by which the owner could clearly identify the object as his own, such as a nametag, or an unusual marking or blemish. Color or style of manufacture is not a valid siman (Sma 267:9) since knowing these characteristics do not demonstrate that one is its rightful owner. A siman must be a characteristic that only the owner would know (see Shulchan Aruch Choshen Mishpat 267:12). Therefore, the fact that something is obviously homemade, such as a hand knit sweater or scarf, is in itself regarded as having a siman (see Mishnah Bava Metzia 25a).

When one announces that he has found a lost item, he should not reveal the siman, nor return the item to the person claiming to be its owner unless the claimant reveals knowledge of a valid siman (Bava Metzia 27b).

If a lost item has no siman, the finder is not required to retrieve it since he cannot return it to the owner. Nevertheless, in several instances the finder may not keep the item even though the lost item has no siman, and in some circumstances he should not pick up the lost item. One situation is where the owner does not yet know that he lost it (ye’ush shelo midaas). Since we rule like Abaye that ye’ush shelo midaas is not valid ye’ush, one cannot acquire an item until ye’ush transpires. On the other hand, returning this item to its rightful owner is impossible since the person claiming to be the rightful owner must identify the object with a siman (Bava Metzia 27b). Therefore, it may be better not to pick up an item where the law of ye’ush shelo midaas applies.

DERECH HINUACH

The second instance where the finder may not pick up an item is when the owner intentionally placed the item in a particular place (makom hinuach) and subsequently forgot about it. For example, one finds a coat or umbrella abandoned in a coatroom, or a talis hanging outside the men’s room. In these cases, by removing the item from its place one jeopardizes the owner’s ability to retrieve it since the owner might later remember where he left it and return for it. However, once the finder removed the item, the owner can no longer retrieve it and will thereby suffer a loss. Therefore, the finder should leave the item unhindered (see Bava Metzia 25b).

I once left a sefer, one volume of a multi-volume set, in the coatroom of a wedding hall. Later that day I realized that I had left the sefer behind and I returned for it. Alas, the sefer had disappeared already!! Had the finder of this sefer followed the halacha, I would still possess a complete set of these Mishnayos; instead I need to borrow this volume whenever I need it.

The major exception to this latter case is when the forgotten item will disappear. The Gemara provides an example of this situation: someone found an item that had been placed in a garbage heap that is usually abandoned, but is being cleared away (Bava Metzia 24a). Obviously, the owner is better off if the finder takes the item and announces it, than if he abandons it and it disappears.

But, wait a minute — How will the owner be able to claim the item if it has no siman? Didn’t I mention earlier that one may not return an item unless the owner proves his ownership with an identifying siman?

KNOWLEDGE PROVES OWNERSHIP

The answer is that in this instance the location of the lost item serves as its siman. Since no one but the owner knows where the item was hidden, this information validates his claim (Bava Metzia 22b). Therefore one should take the item and announce it as a lost object.

At this point, we can now analyze the first question raised at the beginning of this article:

Our shul has coats, umbrellas and other items that have been sitting in the coatroom for months. We have hung notices asking people to check if they have any clothing there, but many coats still remain. The shul is now undergoing renovation which will ruin any remaining clothing. What can we do with them?

This case has an obvious solution. Since the renovations will ruin anything remaining in the coatroom, one may certainly remove them and treat them as one would treat any other lost objects. Although under these specific circumstances some poskim permit disposing or keeping these items, most authorities require these items be kept in a secure place in case the owners returning for them. One should place a notice on the bulletin board advising people whom to contact.

At this point, we can discuss our second question at the start of the article:

Walking down a New York street, Suzie notices a bag bearing the logo of a seforim store that contains a handmade sweater and a brand new sefer. What should she do?

As I mentioned above, there is no requirement to return a lost item unless (a) the item has a siman and (b) one found it in a place where the loser thinks people will return it.

Regarding the sefer, if it is brand new, it will probably have no identifying siman. On the other hand, if the sefer is used, it may have a siman. However in this particular case, even a brand new sefer will have a siman, since it was located together with the sweater, which has a siman.

However, in this particular case, Suzie is not required to return the items or attempt to locate the owner since she found them on the streets of New York. As I mentioned above, someone losing an item in a place where most of the population does not return lost objects is me’ya’aish as soon as he realizes his loss. After ye’ush has transpired, there is no requirement to return an item, although it is meritorious to. Thus, Suzie is not required to locate the owner, although it is preferable to do so.

By the way, returning the sefer to the store accomplishes nothing, since the store no longer owns it. However, contacting the store and notifying them that she found the bag is certainly meritorious since the loser may thereby be able to contact her.

May Suzie keep the lost items?

This will depend on whether we can assume that the owner already realized he had lost them. If he has not yet realized, Suzie may not keep them since ye’ush shelo midaas is not valid ye’ush. Even if we were to assume that the owner will eventually give up hope of seeing his property again, Suzie cannot take possession since ye’ush took place only after she picked up the items. Thus, Suzie cannot keep the sefer and sweater unless she is reasonably certain that the owner realized his loss before she picked up the bag.

A REVIEW OF THE BASIC RULES:

We have learned the following basic rules of returning lost items:

I. Someone who finds a lost item that bears a siman, that is, some way that the owner can prove his ownership, must return the item if it was found in a place where most people return lost objects (see Shulchan Aruch Choshen Mishpat 259:3).

II. Someone may ignore a lost item if there is no way that it will be returned to its owner anyway.

III. After the owner of a lost object despairs of recovering the object, we treat it as ownerless.

IV. Something found in a place where most of the population does not return lost objects may be treated as ownerless even if it has a siman.

V. In the last three situations, if the item has a siman, it is preferred, but not required, to return the item.

VI. Someone who picks up an item before the owner was me’ya’eish may not keep it, even if he kept it until we are certain that the owner was me’ya’eish.

VII. One should not touch an item that an owner placed down intentionally unless the item will disappear.

Andy Gross, a businessman who is proud that he is now observing mitzvos, is on time for his appointment. After a brief greeting, I ask him what brings him to my office on this beautiful morning.

“I recently learned that even though the Torah prohibits paying or receiving interest, there is something called a heter iska that legalizes it. How can we legitimize something that the Torah expressly prohibits?”

Indeed, Andy’s question is both insightful and important, and deserves a thorough explanation. Why don’t you join us!

I noted that this week’s parsha discusses the prohibition of interest:

Do not collect interest from him, for you shall fear Hashem and allow your brother to live. Therefore, do not provide him money with interest (Chapter 25:36- 37).

This verse teaches three different mitzvos:

1. Do not collect interest from him. This entails a prohibition on the lender against collecting interest (Bava Metzia 75b).

2. Allow your brother to live. From the words allow your brother to live we derive a positive commandment that one who did collect interest is required to return it (Bava Metzia 62a).

3. Do not provide him money with interest prohibits creating a loan that involves interest, even if the lender never collects it (Bava Metzia 62a). A lender who later collects the interest also violates the first prohibition, and if he subsequently refuses to return it, he violates the positive commandment.

Not only does the lender violate the prohibition against ribbis, but also the borrower, the witnesses, the broker, the co-signer, the scribe who writes up the loan document (Mishnah Bava Metzia 75b), the notary public who notarizes it, and possibly even the attorney who drafts a document that includes provisions for ribbis all violate the laws of ribbis (Bris Yehudah 1:6). Thus, anyone causing the loan to be either finalized or collected violates the Torah’s law.

“The halachos of ribbis are quite complex,” I told Andy. “From my experience, even seasoned Torah scholars sometimes mistakenly violate the prohibition of ribbis. For example, having a margin account at a Jewish owned brokerage, charging a Jewish customer for late payment, or borrowing off someone else’s credit line usually entail violations of ribbis. I even know of Torah institutions that ‘borrow’ the use of someone’s credit card in order to meet their payroll, intending to gradually pay back the interest charges.”

“Why does the last case involve ribbis?” inquired an inquisitive Andy.

“Let me present a case where I was involved. A Torah institution was behind on its payroll, and had no one available from whom to borrow money. The director asked a backer of the institution if the institution could borrow money through his bank credit line.”

“I still do not see any ribbis problem here” replied Andy, “just a chesed that costs him nothing.”

“To whom did the bank lend money?” I asked Andy.

“As far as they are concerned, they are lending money to the backer, since it was his credit line.”

“So from whom did the institution borrow? The bank did not lend to them. Doesn’t this mean that really two loans have taken place: one from the bank to Mr. Chesed, and another from him to the institution? The loan from the bank incurs interest charges that Mr. Chesed is obligated to pay. Who is paying those charges?”

“It would only be fair for the institution to pay them,” responded Andy.

“However, if the institution pays those charges, they are in effect paying more money to Mr. Chesed than they borrowed from him since they are also paying his debt to the bank. This violates ribbis. The fact that the institution pays the bank directly does not mitigate the problem (see Gemara Bava Metzia 71b).”

Andy was noticeably stunned. “I have always thought of interest as a prohibition against usury – or taking advantage of a desperate borrower. Here the ‘usurer’ did not even lend any money, and thought he was doing a tremendous chesed for tzedakah; he did not realize that his assistance caused both of them to violate a serious prohibition!”

“What is even more tragic,” I continued, “is that one can convert most of these prohibited transactions into a heter iska that is perfectly permitted.

WHAT IS A HETER ISKA?

“A heter iska is a halachically approved way of restructuring a loan or debt so that it becomes an investment instead of a loan. This presumes that the investor assumes some element of risk should the business fail, which is one basic difference between an investment and a loan. An investor could potentially lose money, whereas a borrower always remains responsible to pay.

“One is permitted to create a heter iska even when the goal of both parties is only to find a kosher way of creating a transaction that is very similar to an interest- bearing loan (Terumas HaDeshen #302). The words heter iska mean exactly that: performing an allowable business deal that is similar to a prohibited transaction. As we will see, the structure must still allow for an element of risk and loss as accepted by halacha, otherwise it fails the test of being an investment.

“There are several ways of structuring a heter iska, and indeed different situations may call for different types of heter iska. In order to explain how a basic heter iska operates, I must first explain an investment that involve no ribbis, so that we can understand how a heter iska was developed. For the balance of this article, we will no longer refer to “borrowers” and “lenders.” Instead, I will refer to a “managing partner” or “manager” and an “investor.”

Andy interrupts my monologue. “Was heter iska used in earlier generations?”

THE EARLIEST HETER ISKA

“The concept of heter iska is hundreds of years old. The earliest heter iska of which I am aware is suggested by the Terumas HaDeshen (1390- 1460). His case involves Reuven, who wishes to invest in interest-bearing loans to gentile customers, but does not want to take any risk. Shimon, who is an experienced broker of such loans, is willing to take the risk in return for some of the profit on Reuven’s money.

“Reuven wants a guarantee that he will receive back all his capital regardless of what actually happens in the business venture. Essentially, this means that Shimon is borrowing money from Reuven and then lending it out to the gentiles; this would result in a straightforward Torah prohibition of ribbis, since Shimon is paying Reuven a return on the loan. Is there any way that Reuven and Shimon can structure the deal without violating the Torah’s prohibitions against paying and receiving interest?”

At this point, Andy exclaims: “Either this is a loan, and Reuven’s money is protected, or it is an investment, and it is not. How can Reuven have his cake and eat it too!”

“Actually, all the attempts at creating heter iska are attempts to find a balance whereby the investor is fairly secure that his assets are safe, and yet can generate profit.

PIKADON – INVESTING

“Let me explain how a heter iska accomplishes both these goals, by developing a case: Mr. Sweat has a business idea, but he lacks the capital to implement it. He approaches Mr. Bucks for investment capital. If Bucks has sufficient confidence in Sweat’s acumen to build a business, he might decide to invest even without knowing any details about it in the hope that Sweat’s idea will provide handsome profits. None of this involves any ribbis issues since there is no loan and no one is paying to use the other person’s capital. This business venture is called a pikadon.

GUARANTEEING THE INVESTMENT

“Your model is highly theoretical,” Andy points out, “since it assumes that Mr. Bucks invests without much assurance. Few people I know would entrust someone with their money without some type of guarantee.”

“You have hit on a key point – let us see how halacha deals with this. Whenever an investor entrusts someone with funds, the Torah permits him to demand an oath afterwards that the manager was not negligent. Therefore, Bucks may insist that Sweat swears an oath that he was not negligent with the money and also that he reported exactly how much money Bucks is due. The heter iska agreement may even require that Sweat swears this oath by using G-d’s name and while holding a Sefer Torah in front of the entire congregation.”

“That should certainly get Mr. Sweat to sweat,” quipped Andy. “But then again, assuming Mr. Sweat is a frum Jew, is he going to want to swear any oath at all?”

“That is exactly the point that secures Bucks’ bucks, since observant people would rather pay a substantial sum of money to avoid swearing an oath. The heter iska specifies that the manager has the option of swearing the oath and paying only what the investor is entitled. However, the manager has the option of substituting an agreed upon payment for the oath. Since observant Jews would rather pay the fixed return rather than swear an oath, we accomplish that the investor is reasonably secure, although no loan and no ribbis transpired. The result is not a loan, but a cleverly structured investment.”

After waiting a few seconds and absorbing what he just learned, Andy continued:

“Is there anything else I need to know about a heter iska before I use one?”

“I need to explain one other very important detail that people often, unfortunately, overlook. Most forms of heter iska state that the investor paid the manager a specific sum of money, say one dollar, for his time involved in the business venture. It is vitally important that this dollar be actually paid; otherwise there is a ribbis prohibition involved. Yet I know that many people overlook this requirement and do not understand its importance.”

“Could you explain why this is important?”

STANDARD ISKA – A SILENT PARTNERSHIP

“The standard heter iska assumes that the arrangement is half loan and half pikadon. This means that if Mr. Bucks invests $100,000 with Mr. Sweat to open a business, Mr. Bucks and Mr. Sweat become partners in the business because half of the amount is now a $50,000 loan that Mr. Sweat must eventually repay, and the other half is a $50,000 outlay that Mr. Bucks has now invested in a business that Mr. Sweat owns or intends to open. Bucks may receive no profit on the $50,000 loan he extended — if he does, it is prohibited ribbis. However, he may receive as much profit on the investment part of the portfolio as is generated by half the business. As a result, Mr. Bucks and Mr. Sweat are both 50% partners in the business.

RECEIVING PROFIT FROM THE LOAN

“However, there is an interesting problem that we must resolve. Bucks invested a sum with Sweat, for which he received a profit, and he also loaned Sweat money, for which he may not receive any profit. However, the return on the investment was realized only because Mr. Sweat is investing his know how and labor to generate profit for the partnership – know how and labor that Bucks did not pay for. Why is this investment of services not considered payment for Mr. Bucks’ loan, and therefore a ribbis problem?

“Indeed this concern is raised by the Gemara, which presents two methods to resolve the problem.

“The first method is that the investor pays the manager a certain amount for his expertise and effort. As long as both parties agree in advance, we are unconcerned how little (or much) this amount is (Bava Metzia 68b). However, there must be an amount, and it must be actually paid. Even if they agree to a sum as paltry as one dollar, this is an acceptable arrangement, similar to Michael Bloomberg’s accepting one dollar as salary to be mayor of New York.”

“I now understand,” interjected Andy, “why it is so important that this amount be actually paid. If Mr. Sweat receives no compensation for his hard work on behalf of Mr. Bucks’ investment, it demonstrates that he was working because he received a loan, which would be prohibited as ribbis.”

“Precisely,” I replied. “However, there is another way to structure the heter iska so that this is not a problem. This is by having the profit and loss percentages vary. This means that if the business profits, the managing partner makes a larger part of the profit than he loses if there is a loss. For example, in the original deal, let us assume that our silent and managing partners will divide the profits, but in case of loss, our manager is responsible to pay only $30,000. This means that Sweat borrowed only $30,000 and therefore owns only 30% of the business, which should entitle him to only 30% of the profits. The extra 20% of the profits he receives is his salary for managing the business. He is therefore being paid a percentage of Bucks’ profits for his efforts, similar to the way a money manager or financial consultant is often compensated by receiving a percentage of the profits on the funds he manages.

“The heter iska I have seen used by the Jewish owned banks in Israel includes this method. The bank invests 45% in a “business” managed by the mortgage borrower, but the borrower is entitled to 50% of the profits. Thus, he is “paid” five per cent of the bank’s profits for his services in managing the investment.”

“Can you explain to me how the Terumas HaDeshen’s money lender would use a heter iska?” inquired Andy.

“Actually, his heter iska varied slightly from what we use today. Using today’s accepted heter iska, Shimon the manager accepts the money with the understanding that he is borrowing part and managing the balance for Reuven. He is compensated for his efforts according to one of the approaches mentioned above, and agrees in advance to divide the profits. He also agrees that he will swear an oath guaranteeing that he was not negligent in his responsibilities, and the two parties agree that if he subsequently chooses to pay Reuven a certain amount he is absolved of swearing the oath. Thus, Reuven’s return is not interest on a loan, but the amount Shimon had agreed to pay rather than swear how much he actually owes Reuven.

“This approach has been accepted by thousands of halachic authorities as a valid method of receiving a return on one’s investment that looks like interest but is not. The Chofetz Chayim notes that if someone can lend money without compensation, he should certainly do so and not utilize a heter iska, because this is the mitzvah of performing chesed (Ahavas Chesed 2:15). Heter iska is meant for investment situations, and should ideally be limited to them.

“I would like to close by sharing with you a thought from Rav Samson Raphael Hirsch about the reason why the Torah prohibited interest. He notes that if the Torah considered charging interest to be inherently immoral, it would have banned charging interest from non-Jews, and also would have prohibited only the lender and not the borrower. Rather, Rav Hirsch notes, the Torah’s prohibition is to demonstrate that the capital we receive from Hashem is so that we donate tzedakah and provide loans, and thereby fulfill our share in building and maintaining a Torah community. The Torah’s goal in banning the use of capital for interest-paying loans is to direct excess funds to chesed and tzedakah.”

In Parshas Ki Seitzei the Torah instructs “Biyomo sitein s’charo vi’lo sa’avor alav hashemesh,” “On that day (that is, the day the work was completed) you should pay his wage, and the sun shall not set (without him receiving his payment)” (Devarim 24:15). The Torah mentions two mitzvos; a positive mitzvah (mitzvas aseh)

and a negative mitzvah (lo sa’aseh) to guarantee that a worker is paid before sunset of the day that he performed his job. Thus, someone who pays his worker on time fulfills a positive mitzvah, whereas if he neglects to pay him on time and the worker demands payment, he has trangressed a lo sa’aseh.

The Torah gives us a definition of  “on time”- before sunset. This mitzvah is mentioned in Parshas Kedoshim as well. However in Parshas Kedoshim, the Torah presents the mitzvah somewhat differently: “Lo salin peulas sachir itcha ad boker,” “The wages of a worker shall not remain with you until morning” (Vayikra 19:13). Here the Torah requires that the worker be paid before morning, implying that one has the entire night to pay him, rather than being responsible to pay him before the day is over. The two verses appear contradictory, one implying that I must pay my worker before sunset, the other implying that I have until morning.

Chazal resolve this conflict by explaining that there are indeed two deadlines, the end of the day and the end of the night, but that the two p’sukim discuss different cases. The pasuk in Ki Seitzei discusses a worker whose job finished precisely at the end of the night. Such a worker must be paid before the following sunset, which is the first deadline that arrives after he completed his job. However, the pasuk in Kedoshim refers to a worker who completed his job at the end of the day. Such a worker must be paid by morning.

Thus, the two verses together teach that there are two payment deadlines, one at sunset and the other at daybreak. One is obligated to pay his worker before the next deadline that occurs after the job is completed. If the work was completed before the end of the day, he must be paid by sunset. If the work was completed at night, he must be paid before daybreak (Bava Metzia 111a, quoting the Amora, Rav). It should be noted that one violates the lo sa’aseh only in a case where the worker demanded payment and the owner refused to pay. Furthermore, as we will note, there is no violation if it is understood or prearranged that payment will be delayed.

WHAT TYPE OF WORK IS INCLUDED IN THIS MITZVAH?

The Torah was very concerned that a worker should be paid on time. This mitzvah applies not only to an employee but also to a contractor who is hired to perform a specific job; he must be paid by the first deadline after the job is completed. It also applies to someone who works on one’s item on his own premises such as small appliance repairs, dry cleaning, and tailoring. Payment on these items is due by the first deadline after the item is returned (Shulchan Aruch Choshen Mishpat 339:6).

Likewise, someone hired for a specific length of time must be paid by the first deadline after completion of employment. In all these situations if the job was completed (or the item returned) during the day, the worker should be paid by sunset. If the job was completed by night, he should be paid by morning.

This mitzvah applies to all kinds of hired work, whether the worker is a contractor or an employee, permanent or temporary, poor or wealthy, adult or minor. Thus, by paying on the day we receive the service we fulfill the mitzvah of biyomo sitein s’charo, paying a worker on the day he completes a job, as well as fulfilling other mitzvos that will be mentioned later in the article. The following is a partial list of workers included in this mitzvah: automobile and appliance repairmen, babysitters, dentists, dry cleaners, house cleaners, housing contractors, lawn mowers, lawyers, physicians, psychologists, rebbes, teachers, and tutors.

EXAMPLE:

Shimon picked up his garment from the tailor, who asked him for payment. Shimon forgot to bring money to pay the tailor, asking him if he minds waiting a couple of days until Shimon is back in the neighborhood. The tailor answered that his rent is due today and he is short on money. Shimon is obligated min hatorah to make a special trip to pay the tailor today. Of course, his reward for fulfilling the mitzvah is increased many times because of the inconvenience involved.

Similarly, one is required to pay the doctor on the day of the appointment unless other provisions have been prearranged. If I hire a teenager to mow the lawn, I must pay him when he finishes the job. I should not delay payment to a later date because of my convenience.

The employee or hiree must be paid in cash (Tosafos Bava Basra 92b; Shach Choshem Mishpat 336:4) or by check that he can readily convert into check. One may not pay a worker or contractor with merchandize unless this was arranged in advance.

The employer has not fulfilled his mitzvah if he pays with a post-dated check or a check that cannot be immediately cashed (such as, the bank is closed for the day). Again, if the employee is told before hiring that these are the arrangements, then there is no violation.

In keeping with the Torah’s ideas of protecting worker’s rights, it is prohibited to call a repairman knowing that I have no money to pay him without telling him that payment will be delayed (see Ahavas Chesed 1:10:12).

RENTALS

Bal talin also applies to rental arrangements. Thus if I rent an appliance or automobile, I must pay the rent by the sunset or daybreak after the rental is completed.

EXAMPLE:

Leah borrows a wedding dress from a gemach that charges a fee for dry cleaning and other expenses. When she returns the dress, she should pay the gemach before sunset or daybreak, whichever comes first.

SMALL WAGES AND SMALL EMPLOYEES

Even the delay of a wage less than a p’rutah is a violation of bal talin (Ritva Bava Metzia 111b). As mentioned above, I am required to pay a minor on the day he performs a job for me. Thus, if I hire a child to run an errand for me, I must pay him that day (Ahavas Chesed 1:9:5). Furthermore, if I offer a young child a candy to do a job, I am required to pay him the candy the day he did the job.

EXAMPLE:

Reuven asked an eight-year old to buy him an ice cream cone, offering the eight-year old to buy himself a cone at the same time. The grocery had only one cone left. If Reuven takes the cone for himself, he must make sure to buy the child a cone before sunset today. (In this instance, it will not help Reuven if the child says that he does not mind, since a child cannot waive his legal rights.)

Running a large business or being preoccupied is an invalid excuse for not paying on time (Tosafos Bava Metzia 111a s.v. Amar). Furthermore, arranging that someone else pay the workers or contractors does not exempt the owner from responsibility if the agent is remiss. This is because of a halachic principle that one may not assume that an agent carried out a Torah command on my behalf (see Nsiv HaChesed 1:10:25).

WHAT IF I DIDN’T REALIZE I WOULD BE EXPECTED TO PAY THAT DAY?

Unless there was a reason to assume that I was not expected to pay until later, I am responsible to pay the day the work is performed.

EXAMPLE:    

Mr. Siegal enters the doctor’s office and sees a sign on the wall, “Payment is due when service is rendered.” Mr. Siegal had assumed that he would pay when the bill arrives, and he has no money until his next payday. He should inform the receptionist of his inability to pay and request that the doctor be so informed before the appointment.

WHAT IF IT IS ASSUMED THAT THE WORKER IS PAID LATER?

The Gemara (Bava Metzia 111a) discusses the following situation and rules it halachically acceptable. The Jewish merchants of Sura hired workers and paid them at the end of the next market day when the merchants had extra cash. Until market day it was assumed that the merchants would use their available cash to purchase more merchandise (Ritva ad loc.), and the workers were always paid after market day. The Gemara states that these merchants did not violate bal talin since it is assumed that the workers will not be paid until the following market day.

A contemporary analogy is when a business pays its workers on Tuesdays for the week’s work or on the first of the month for the previous month. In these situations, there is no violation of bal talin since this arrangement is assumed.

WHAT IS THE HALACHA IF AN AGENT HIRED THE WORKERS?

The Gemara (Bava Metzia 110b) discusses a case where the foreman hired workers on behalf of the employer, notifying them that he is not responsible for their wages. Subsequently, the wages were delayed. The Gemara states that neither the foreman nor the employer violated bal talin. The foreman did not violate because it was clear that he is not personally obligated to pay the workers. The owner does not violate bal talin since he did not hire the workers himself. Nevertheless, he is still required to pay them on time if possible (Shulchan Aruch Choshen Mishpat 339:7).

WHAT SHOULD I DO IF I MAY NOT BE ABLE TO PAY ON THE DAY DUE?

To avoid violating any Torah mitzvos, the owner should tell the workers before they begin working that he is making a condition that they forgo their right to be paid on time (Nsiv HaChesed 1:10:24).

WHAT SHOULD THE OWNER DO IF HE WILL BE OUT-OF-TOWN ON PAYDAY?

The owner is responsible that his workers are paid on time. If he will be absent when his worker finishes, he must make provisions to pay the workers on time (Ahavas Chesed 1:10:12).

EXAMPLE:

Mrs. Schwartz is taking her child to the doctor and has hired a babysitter to take care of her other young children until her teenaged daughter comes home at 4:00 p.m. Unless Mrs. Schwartz arranges otherwise, she must see that her babysitter is paid before sunset.

There are several ways Mrs. Schwartz can avoid violating the Torah’s law. When hiring the sitter, Mrs. Schwartz can tell her that she is hiring her with the understanding that the sitter waives her right to be paid that day. In this case, if Mrs. Schwartz fails to pay the sitter before sunset, she will not violate any prohibition, although she will have missed the opportunity to perform a mitzvah. Therefore, it is better if Mrs. Schwartz gives her teenaged daughter money to pay the sitter. This way Mrs. Schwartz has fulfilled the mitzvah of paying her worker on time. Optimally, Mrs. Schwartz should do both; that is, she should ask her sitter to waive her right, just in case the sitter is not paid on time, and arrange for her daughter to pay, so Mrs. Schwartz fulfills an extra mitzvah.

If the sitter did not waive her right to be paid before sunset, Mrs. Schwartz must check with her daughter later in the day that she indeed paid the babysitter (see Nsiv HaChesed 1:10:25).

WHAT IF THE OWNER HAS NO MONEY WITH WHICH TO PAY?

Kalman Mandel’s business is running a cash flow problem, and he is running into difficulty paying his contractors. There are several shaylos he should ask his rav.

Kalman has money in a personal bank account. Is he required to pay his contractors with this money, or can he assume that since his business is incorporated that he is only obligated to pay them from his business account?

How much is the business required to liquidate to pay the contractors? How aggressive is the business required to collect its receivables? Am I required to sell merchandize at a lower price?

Some poskim contend that one is required to borrow money in order to pay on time. Chofetz Chayim (Ahavas Chesed 1:9:7) rules that one is required to borrow money to pay one’s workers on time whereas Pischei Tshuva (339:8) and Graz rule that it is the correct thing to do (midas chassidus) but it is not required.

According to Biyur Halacha (242:1), if one does not have enough money both to pay wages due on Friday and to make Shabbos, one is required to pay the wages even if as a result he will not have money for Shabbos. If sunset is approaching, and the owner has not yet paid wages that are due today, he must attend to paying his workers even if he is unable to daven mincha as a result if the workers demand payment.

As we have mentioned before, if the employee does not claim payment or states that he does mind if the payment is delayed, the employer did not violate bal talin. Nevertheless, the payer should still attempt to pay on time and he fulfills a mitzvah by doing so.

It is wrong for the owner to delay paying the worker, forcing him to repeatedly return for payment. These actions violate the mitzvah taught by the pasuk in Mishlei, “Al Tomar li’rei’acha lech va’shoov u’machar e’tein vi’yeish i’tach,” “Do not tell your neighbor ‘Go and come back, I’ll pay you tomorrow,’ when you have the (money) with you” (Mishlei 3:28).

If the employer refuses to pay his worker altogether, he violates the prohibition of “Lo sa’ashok es rei’acha,” “Do not hold back payment due your neighbor” (Vayikra 19:13). If the employee or contracter is needy, the employer violates an additional prohibition “Lo sa’ashok sachir ani v’evyon,” “Do not hold back payment due to a poor or destitute person” (Devarim 24:14).

The Gemara (Bava Metzia 111a) counts a total of seven Biblical mitzvos involved in withholding wages, including gezel, stealing, as well as the above mentioned mitzvos.

WHAT SHOULD THE OWNER DO IF HE IS SHORT ON MONEY?

What should the owner do when he does not have enough money to pay all his employees and contractors? The Chofetz Chayim discusses this exact shaylah in his sefer Ahavas Chesed. He rules that if some of the workers are poor, he should pay them first. If all or none of the workers are poor, he should divide the available funds among them equally.

MAY THE OWNER OFFER EXTRA COMPENSATION FOR DELAYED PAYMENT?

The owner missed his deadline. Feeling bad, he considers compensating his workers by providing them with a bonus for their patience. Unfortunately although he means well, the owner has now incurred a different prohibition because this is considered as paying interest (ribis). Since he is obligated to pay his workers, the amount owed is a debt. The prohibition against interest applies to any debt, even if it did not originate as a loan. Therefore, an employer who delayed paying his workers or contractors cannot offer them compensation for the delay, nor can they charge him a late fee (Shulchan Aruch Yoreh Deah 173:12; Ramah ibid. 176:6).

Similarly, if the owner is tight on cash, he may not offer his workers, contractors or other creditors a bonus if they will wait for payment. This situation might entail a Torah prohibition of ribis (see Bris Yehudah pg. 451 ftn 15). If necessary, he could arrange this with a heter iska, and a rav should be consulted.

THE CONTRACTOR IS OVERCHARGING ME. WILL I VIOLATE BAL TALIN IF I HOLD BACK PAYMENT?

When a person feels he is being overcharged, he usually considers withholding part of the payment until the matter is clarified. If indeed he is correct, this plan is not a problem. However, if he is mistaken and the contractor deserves the total amount, it means that he has violated bal talin by not paying the contractor on time if the contractor demanded payment. For this reason, the Chofetz Chayim suggests always negotiating a price with a contractor or repairman in advance.

SUGGESTION:

If the repairman is uncertain how much the work will cost, tell him (before he starts) that you are stipulating that he waive his right to be paid on time (see Graz Vol. 5 pg. 890 #18). This avoids violating the prohibition of bal talin should a dispute develop between the parties.

If I failed to stipulate this condition in advance and a dispute develops between the contractor and myself, I should discuss with a rav how to proceed. Bear in mind, that if the worker is demanding payment and I am wrong, I might end up violating a serious Torah prohibition by not paying on time.

It is important that people become more familiar with the details of bal talin in order to conduct their business dealings according to halacha. Unfortunately, not everyone realizes the mitzvos that are accomplished by paying workers on time. Apparently, this is not a recent phenomenon. Over a hundred years ago, the Chofetz Chayim decried the fact that otherwise observant people were inattentive in the observance of this mitzvah. He attributed this to ignorance of its details. Hopefully, this article will spur people to learn more about these mitzvos and their great reward.

Each of the following shaylos is an actual case of inter-neighbor altercations that I was asked about or over which I presided. All these cases deal with shaylos about neighbor’s rights within the framework of halacha. What may I do or not do on my property that may infringe on my neighbor’s right to gain full benefit and enjoyment from his property?

Question #1: After moving into a new apartment, my grandmother discovered that her next-door neighbor practices his drums every day. On some days he even has band practice in his house. When we asked the drummer to limit his hours or decrease the volume, he insisted that he has been doing this for years and that this is his livelihood. Grandma finds the noise blasting through the walls highly distressing. Can we force the neighbor to drum elsewhere?

Question #2: Yehudah and Tamar dwell in a semi-detached house. Levi purchased the other side of the house as an investment, and rented it out. A few weeks later, Tamar calls Levi to complain about the objectionable behavior of the new tenants and asks Levi to have them shape up or ship out. Levi meets with his tenants, attempting to explain that their behavior is inappropriate for the neighborhood, but they insist that their behavior is normative. If this continues, do Yehudah and Tamar have the halachic right to insist that Levi terminate the tenants’ lease?

Question #3: There is always such a racket upstairs! I was certain that their kids are roller-blading or playing basketball right over my head, but their mother insists that they are just normal, active children. What may I do to improve the situation?

Question #4: Several years ago, Reuven (who lives on the ground floor) affixed a basketball hoop to the wall of the apartment building and laid out a regulation-sized half-court. Shimon, who now lives directly above Reuven, would like to hang a clothesline outside his window, but as any large item hanging from the clothesline will lie on the hoop and become dirty, he would like Reuven to remove the hoop to a different location. This, of course, will ruin the basketball court.

BACKGROUND TO THE SHAYLOS

Unless local custom dictates otherwise (a concept I will explain shortly), one may use one’s house for normal household use, provided that the said activity does not damage my neighbor’s person or property. “Typical domestic use” includes work done in one’s house to earn a livelihood. For this reason, at the time of the Mishnah, one could use one’s house for simple manufacturing, and people could not necessarily object to a neighbor using his house as a bakery or a cloth dyeing operation, even if the neighbor’s house became uncomfortably warm as a result (Mishnah Bava Basra 20b).

AN EXCEPTION

There is an exception to this general principle a person can object to his neighbor opening a store in his building. Why is a store different from other livelihoods? Because it generates a lot of foot traffic; therefore the neighbor has the halachic right to object to the noise and bustle.

But do people entering and leaving a small household store create more discomfort for the neighbor than the heat of a baker’s oven or a dyeing operation? Perhaps the heat of the oven is more uncomfortable than the traffic of the neighbor’s small store? Why, then, does the Mishnah rules that one can prevent the neighbor running a store, but not a bakery?

The reason is that although the discomfort generated by the store may sometimes be even less than that the heat of the oven, the Mishnah forbade opening the store because its proprietor could sell his wares in the town’s marketplace, which was the primary business location in town. Thus, there was no need to sell merchandise in one’s house, and insisting that a neighbor sell his wares elsewhere did not jeopardize his livelihood. Manufacturing, on the other hand, was generally done in people’s homes (Shu’t Chasam Sofer #92).

What is the halacha when two permissible domestic uses preclude one another? For example, Mr. Upstairs wants to use his house as a warehouse to store grain, whereas Mr. Downstairs wants to use his house as a bakery or a dyeing shop. Both of these uses are considered “typical domestic use,” since both use one’s domicile as a means of earning one’s livelihood. However, the two uses are mutually exclusive, since the heat from the bakery or dye shop will ruin the grain. Therefore, if Mr. Downstairs uses his apartment as a bakery, it will prevent Mr. Upstairs from storing grain in his house. May Mr. Upstairs prevent his neighbor from baking or not?

The Mishnah rules that whoever began his operation first has the right to continue. If Mr. Upstairs began storing grain before Mr. Downstairs opened his bakery, Mr. Downstairs may not open his bakery since he will be damaging Mr. Upstairs’ grain. However, if Mr. Upstairs has not yet begun to store his grain, Mr. Downstairs may open the bakery in his house. Once one neighbor begins using his house for a certain purpose, a second neighbor using his part for another, incompatible purpose is considered as creating damage. But if the second neighbor began first, he in entitled to continue.

WHY DO WE CONSIDER BAKERIES AND DYE FACTORIES “NORMAL HOUSE USES?”

In earlier times of cottage industries, most people making a living from crafts, small manufacturing, or trading used their house as their base of operation. Thus, using your house as a bakery, factory, or warehouse was normal household usage, provided one retailed the wares somewhere else.

DO LOCAL LAW AND CUSTOM AFFECT THESE HALACHOS?

Indeed they do. In general, halachos that involve financial arrangements between two parties are governed by the prevalent local practice. This is called, hakol kiminhag ha’medinah, “everything goes according to local custom.” The rationale of this is that the two parties involved assume that this is what governs their relationships. Therefore people buy or rent a house or apartment assuming that the neighbors will follow the accepted local norm. This is the guiding principle governing neighbor relations.

Therefore, today one may not open a bakery or dyeing operation in a residential building since it violates common practice.

Everything depends on contemporary local custom. Thus, examining the different responsa discussing these issues provides an interesting glimpse into how our forebears’ livelihoods and lives. For example, a Nineteenth Century responsum discusses the following situation:

A man passed on, leaving his large house to his three sons, who divided it into three apartments for themselves. One son opened a bar in his apartment, which was apparently an accepted practice in those days. However, the other brothers wanted him to close it because of the quantity and type of traffic it generated (Shu’t Chasam Sofer, Choshen Mishpat #92). On the other hand, the bartender brother contended that this was his livelihood and as such he is permitted to carry on his livelihood in his residence.

When the rav ruling this issue referred the shaylah to the Chasam Sofer, he discussed whether using your house as a tavern is considered a legitimate domestic use. Superficially it would appear that it is not, just as one may not use one’s house as a store, since it is not considered normal household use when many customers visit a residence. However, the Rav who referred the shaylah noted that it was common practice (in those times) to sell sugar or coffee out of one’s house because this was necessary for people’s livelihood. Even though these situations should also be prohibited according to the Gemara, nonetheless, minhag ha’medinah permitted it, and perhaps this same custom could justify opening a tavern in one’s house. Furthermore, the Rav contended that a tavern is not a business that one can carry out in the town’s marketplace, because a bar has to be a place conducive for people to sit together, relax, and drink.

Chasam Sofer suggests an alternative reason to require the closing of the tavern, based on the nature of the clientele that a tavern generates, but does not rule conclusively that this would provide the other brothers with a legitimate claim to close the tavern. Thus, we see that what would seem highly obvious to us – that it is forbidden to open a tavern in your residence against the wishes of your neighbors, was not obvious to the great poskim who ruled on this issue two hundred years ago. This demonstrates how times change.

THE DRUMMER

We can now try to apply the principles we have learned to the cases we mentioned at the beginning of the article. In our first shaylah, Grandma’s neighbor practices his drums, thus disturbing her. Grandma would like him to limit his hours or decrease the sound, but he insists that he has been doing this for years and that this is his livelihood. Can we force the neighbor to drum elsewhere?

Is drumming in your house an accepted practice? Can one claim that this is a permitted hobby in a residential neighborhood? Can one claim as an additional reason that it is necessary for one’s livelihood?

This would primarily depend on the accepted local custom. If indeed drumming is permitted during daytime hours and the drummer’s activities are legal and accepted according to local ordinance, then Grandma may have no right to prevent him from continuing his activity. However if local custom precludes this activity, one could prevent him from drumming even though it is his livelihood.

Thus, if Grandma moved into a retirement community where one would assume that everything will be nice and quiet, she can certainly insist that her neighbor drum elsewhere. However, in the absence of local custom, what would halacha dictate?

WHAT IS THE HALACHA IF THERE IS NO LOCAL CUSTOM?

In this particular case, the parties involved lived in an area where there is no established practice prohibiting drumming during daytime hours. Grandma’s family wanted to know whether there were halachic grounds to prevent their neighbor from drumming when it greatly distressed her.

From what we have mentioned above, it appears that the drummer has a legitimate claim to use his home for his livelihood. However, this is not always the case, as the following 14^th century responsum indicates:

A weaver had a home-operated business, which utilized a large and noisy loom. Although he had been operating this business for a number of years, his neighbor sued him in beis din to remove the loom from the property because of two claims:

1. The loom was causing damage to their common wall.

2. The wife of the neighbor was ill, and the noise disturbed her.

The Rivash (Shu’t #196) ruled that both claims were legitimate, and that the weaver must remove the loom even though it had been operating for years. He contended that although most people can tolerate this amount of noise, someone who is highly sensitive or ill can legitimately claim that noise injures them, thereby requiring the neighbor to cease the operation (Rama 156:2; see also Rama 155:39).

It is historically noteworthy that the Rivash did not prohibit having a large loom operating in one’s house under all circumstances. On the contrary, the Rivash implies that one could operate such a loom if it did not damage the property nor injure one’s neighbor.

Thus according to the Rivash’s psak, in the case of Grandma’s neighborly drummer, if her health is fragile and she would be ill-effected by the drumming, one could prevent him from drumming.

NOISY NEIGHBORS

We can now examine the background behind Questions #2 and #3 above: The downstairs neighbor finds the noise from the active family above them to be quite intolerable. The upstairs neighbor insists that this is the standard noise of normal, active children. Can downstairs ask beis din to force upstairs to relocate?

Aside from the questions of local custom (minhag ha’medinah) discussed above, we need to clarify something else in this case: Is the upstairs noise unusual, or is it simply the usual bustle produced by a large household, particularly one with children, and is the downstairs neighbor simply extremely sensitive to noise? Does the downstairs neighbor have a valid claim that the upstairs neighbor should be quieter, and if he does, must the upstairs neighbor relocate?

Similarly, question #3 also hinges on whether the neighbor’s noise is abnormal, regardless of who lives next door. If the neighbor is a bit noisy, and the complaining neighbor is merely more sensitive than most people, there are no grounds to require him to terminate the lease or to be unable to renew their lease. On the other hand, if the neighbor is really objectionable, the landlord should terminate their lease on this basis.

The Chazon Ish (Bava Basra 13:11) points out that Rivash’s case discussed involved use of a loom, which although suited to household use according to Chazal’s definition, is not a typical household use. Chazon Ish contends that one may not prevent someone from using his house for a typical household use, even if a neighbor finds the noise level distressful. Thus, someone whose family makes a great deal of noise may continue to do so. Even if a neighbor becomes ill and is intolerable of such noise, he still cannot force the noisy neighbor to move. Therefore, one cannot force a neighbor whose children cry in the middle of the night to move, even if Grandma lived there first. However, you can prevent them from having the kids play ball or rollerblading in the house since these are not typical household uses when you live above someone else.

Rav Tzvi Spitz, a dayan in Yerushalayim, discusses the following case: A family adopted a foster child, and the neighbors complain that the child makes loud noises at all hour of the night, disturbing their rest. The neighbors contend that although it is a mitzvah to take care of a foster child, the foster parents have no right to perform their mitzvah at the neighbors’ expense. The neighbors contend that they have a right to enjoy peace and quiet in their apartments. Can the neighbors force the foster parents to relinquish the foster child or move?

Rav Spitz ruled that since taking care of children is considered the major purpose of a house, the neighbors cannot claim that their rights preclude the rights of someone to raise a child in their house, and furthermore, one cannot distinguish between raising one’s own child or raising someone else’s (Minchas Tzvi 1:10).

HOOP VERSUS CLOTHESLINE

In many places it is standard domestic use to have a clothesline hanging outside your window. In these locations, one has a right to hang a clothesline. On the other hand, is it normal domestic use to hang a basketball hoop? If this is a location where both uses are considered normal, then whoever was there first would have the claim, similar to the Gemara’s case of the bakery and the storage area. If the right to a laundry line is considered normal house use, and the basketball hoop is not, one could argue that the hoop should be taken down to make way for the laundry line.

With a healthy dose of mutual good will, most people should manage to live with their neighbors in peace and tranquility. And in cases of conflict, we must not hesitate to use halacha as our guide, just as we do in all other aspects of our lives.