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

Question #1:

Chaim knows that, as the head of the family, he has the responsibility to care for his wife, Fruma, and their children. He feels that this responsibility obligates him to acquire an adequate amount of life insurance should something chas veshalom happen to him. Fruma’s upbringing was that even discussing this matter can cause bad things to happen. Who is right – Chaim or Fruma?

Question #2:

Miriam calls her rav with a shaylah. "My husband and I would like to buy life insurance, but we’re concerned that it might show a lack of bitachon that Hashem always does what is best for us. Is that correct?"

Question #3:

Tzadok is one of the city’s biggest tzaddikim. He teaches, voluntarily oversees some local tzedakah projects, not to mention his incredibly solid kevi’us itim.  He is a talmid chacham and is raising his own large family. One of the ba’alei batim has offered to purchase a life insurance policy on his behalf, but Tzadok questions whether doing so might jeopardize him, since his family would no longer be dependent on his support. Is his fear founded?

Answer:

At times we have heard someone opposing life insurance –claiming that it reflects a lack of bitachon, or that its acquisition could actually be to one’s detriment. Let us understand what the halachic authorities say about this subject. Indeed, are there halachic or hashkafic concerns about purchasing life insurance? From a Torah perspective, should this practice be encouraged or discouraged ?

The three situations I presented above demonstrate three different issues that poskim discuss when analyzing whether there is a halachic problem in purchasing life insurance. They are:

I. Creating a Devil’s Advocate

The Gemara^[1] states that one should not say something that might cause evil to occur. Al yiftach adam piv l’satan – Do not create an opportunity for Satan to mix in! Is purchasing life insurance not considered encouraging the evil Satan to do something nefarious?

II. In G-d We Trust

If we really believe that Hashem provides for all of our needs, doesn’t purchasing life insurance demonstrate that we are worried about the future and lack trust in Hashem?

III. Succeeding in Divine Judgment

As opposed to a human court, Hashem’s judgment and decisions are perfect, and take all ramifications into consideration. The Heavenly Tribunal will not recall someone unless all the consequences of his disappearance are calculated. Based on this, perhaps purchasing life insurance jeopardizes the insured, since his family is no longer as dependent on his support, thus minimizing the merits he has when judged by the Heavenly Tribunal?

Let’s analyze each one of these issues individually, in order to determine whether or not purchasing life insurance should be allowed or even encouraged.

Issue #1 — Creating a Devil’s Advocate

Al yiftach adam piv l’satan literally translates as, “A person should not open his mouth for Satan.” One should be careful not to say something that might provide Satan with ammunition. The Gemara^[2] applies this rule to forbid a person from saying, “I sinned a lot, but Hashem has not punished me." The admission that one is guilty and deserves punishment gives Satan a chance to prosecute one in the Heavenly Tribunal. According to the Magen Avraham,^[3] the main concern here is that the words "Hashem has not punished me" imply that one anticipates the punishment, although this is clearly not what the speaker intends. However, when Satan prosecutes, he might take the speaker’s words out of context.

The question is whether purchasing life insurance provides Satan with such an opportunity to prosecute.

A different Talmudic discussion implies that it is absolutely permissible to make arrangements for oneself in the event of one’s demise, and that doing so is not considered opening one’s mouth to Satan. The Gemara^[4] discusses whether someone who prepares for himself shrouds (tachrichim) that are four-cornered is required to attach tzitzis to their corners, implying that it is, indeed, permitted to prepare shrouds for oneself. In other words, planning for one’s death does not constitute violating the warning al yiftach adam piv l’satan and does not provide the Satan with any ammunition.

Indeed, this Gemara’s discussion is rallied as a source in the following situation. Maury Bond is lying on his deathbed on a hot Friday afternoon. There is concern that if he dies before Shabbos, his corpse will begin to decompose and smell unpleasant before it can be buried after Shabbos, which would not be a kavod for the departed. (Remember that earlier generations did not have ready access to refrigeration.) The authorities debate whether it is permitted to dig Maury’s grave while he is still breathing, so that, should he die on Friday, he could be buried quickly before Shabbos. Most authorities^[5] permit digging the grave while Maury is still living; the dissenting opinion prohibits this out of concern that Maury might find out that his grave is already dug, which will distress him, and this itself could lead to his premature demise.^[6] However, none of the authorities debating this case is concerned that the efficacy of digging Maury’s grave while he is still alive violates al yiftach adam piv l’satan and provides Satan with the opportunity to clamor for Maury’s swift departure. Some of the authorities who discuss this question explicitly state that it is perfectly acceptable for a healthy person to arrange the digging of his own grave and to prepare his own shrouds, as we see from the above-quoted passage in the Gemara. One highly respected authority expressly approves the practice of purchasing adjacent burial plots for a couple, the fact that at least one member is still alive notwithstanding.^[7]

Thus, we see that it is not considered al yiftach adam piv l’satan when a healthy person makes funeral arrangements for himself, since he is not mentioning his sins and giving Satan any reason to prosecute him. Based on this, several authorities rule that purchasing life insurance is also not a violation of al yiftach adam piv l’satan.^[8]

However, I would like to note that there are two sources from which it seems that al yiftach adam piv l’satan applies in some other cases. In Kesubos 8b, the Gemara states that a person should not make the following declaration, “Many will drink the cup of mourning” because of the concern of al yiftach adam piv l’satan. This source implies that there is concern of al yiftach adam piv l’satan even when one’s statement does not imply that one has sinned and deserves punishment. Similarly, a different Gemara passage states that upon entering the bathhouse (which in those days involved a moderate degree of danger), one should not say “if something goes wrong, my death should atone for my sins” because of al yiftach adam piv l’satan.^[9]

Thus, we need to resolve why the halachic authorities who discuss making shrouds, digging a grave, or purchasing a burial plot for a living person do not prohibit these actions because of the principle of al yiftach adam piv l’satan, even though the statements “many will drink the cup of mourning” and “if something goes wrong, my death should atone for my sins” are prohibited for this reason.

The answer appears to be that these last two cases are a concern only because one is expressing the possibility of one’s passing, which fits the words of Chazal: a person should not say, “I sinned a lot, but Hashem has not punished me." Assuming our solution is correct, arranging plans for one’s demise, including writing one’s will and purchasing life insurance do not violate al yiftach adam piv l’satan, provided that one does not express verbally the possibility of one’s death.

Issue #2: — In G-d We Trust – Exclusively

A Jew is obligated to believe that although he makes an effort to earn his livelihood, parnasah, it is ultimately Hashem alone Who provides it. The question is whether there is a difference between working for one’s daily needs and working to save money for future expenses. Is it a shortcoming in bitachon to save for the future? Does purchasing life insurance imply lack of confidence that Hashem will provide for his family?

To answer these questions, we must first examine the halachic relationship between parnasah and bitachon.

Is there a Dispute in the Mishnah?

The Mishnah quotes two ostensibly dissenting opinions. Rabbi Meir is quoted first as saying: “A person should teach his son a livelihood that is easy (to learn) and free of potential sin. (At the same time, he should) pray to Him Who is the source of all wealth and property. (Always realize that) there is no profession that does not have its vicissitudes. Poverty and wealth are dependent on his merit.” We see that Rabbi Meir advocates teaching one’s child a livelihood, while simultaneously acknowledging that livelihood comes from Hashem and not from our efforts.^[10]

On the other hand, the very same mishnah quotes Rabbi Nehorai as saying, “I abandon all means of livelihood and teach my son only Torah.”

Thus, we appear to have a dispute between two tanna’im as to whether one should take time from teaching one’s son Torah in order to provide him with vocational training. However, this analysis cannot be accurate for the following reason:

The Gemara^[11] teaches that Rabbi Meir was an alternate name for Rabbi Nehorai, because his teaching of Torah produced so much light. (Meir means “He who gives light,” and the word Nehorai also means "light".) How could Rabbi Nehorai disagree with himself?

Resolving the Dispute

One answer to this problem is that Rabbi Nehorai’s statement that he would teach his son nothing but Torah was personal – Rabbi Nehorai himself had no worldly concerns, because he placed complete trust in Hashem. Someone at this level should indeed not teach his son any worldly occupation. However, most people do not reach this level of trust and must provide their son with a livelihood, while emphasizing that parnasah is from Hashem.^[12]

Rav Moshe Feinstein^[13] presents an alternative answer to the contradictory statements of Rabbi Meir. The two statements are discussing different stages of life, one before the son must begin supporting his family, and the other when he has to support his family. Rabbi Nehorai’s statement that “I teach my son only Torah” applies before the son needs parnasah. Until then, he should learn only Torah. The other statement refers to a son who has to earn a living. At that point, his father should teach him a livelihood that involves few halachic challenges and is easy to learn, while at the same time teaching him that his vocation is only hishtadlus, one’s feeble apparent attempt, and that parnasah comes only from Hashem.

There is a halachic difference between the two approaches. According to the first approach, someone with total trust that Hashem will provide for him, even if he makes no hishtadlus, should not make any effort toward parnasah. According to Rav Moshe’s approach, even a person with total trust in Hashem is required to have a livelihood. Rav Moshe brings evidence from several sources that it is inappropriate to rely on miracles for one’s parnasah. Furthermore, he considers having no livelihood as equivalent to relying on miracles.^[14]

On the other hand, Rav Vozner rules,^[15] similarly to the first approach, that a pure baal bitachon is permitted to rely totally on Hashem for parnasah; however, he agrees that this applies only to rare individuals. There are stories about Gedolim, such as Rav Yosef Chayim Sonnenfeld, who made no conventional hishtadlus to attain parnasah. These Gedolim, too, must have had the same opinion as Rav Vozner. According to Rav Moshe’s approach, one may not deliberately adopt such a lifestyle.

Both Rav Moshe and Rav Vozner rule that, generally speaking, people are required to have some type of parnasah, and that it is not a lack of bitachon to do so. Unless he is a great tzaddik, no one should assume that he has sufficient zechuyos (merits) to expect Hashem to provide his parnasah with no hishtadlus whatsoever on his part.

The poskim bring evidence from Tosafos that it is not a shortcoming to make arrangements to take care of one’s financial future. The Gemara^[16] rules that although a father has the halachic ability to marry off his daughter while she is a minor, he is prohibited to do so out of concern that when she grows up, she may not like her husband. In Tosafos’ time, however, underage daughters were married off, which appeared to be a violation of this halacha. Upon what basis was there a practice contrary to the Gemara’s ruling?

Tosafos explains that in his turbulent times (the Baalei Tosafos lived during the period of the Crusades), a man who had sufficient means to provide his daughter with a dowry, should arrange her marriage to someone appropriate. If the father delayed, he risked losing his money, which could have been tantamount to his becoming unable to marry off his daughter. Tosafos does not contend that a person should have bitachon that he will have the means to be able to marry her off later.

Similarly, someone who can purchase life insurance, an annuity, or other means for making his life or the lives of his dependents more secure, may do so.^[17] Bitachon does not require someone to ignore future needs. Bitachon does require that a person realize that everything that happens is under Hashem’s supervision and control.^[18]

What will I eat tomorrow?

But doesn’t this approach violate the statement that “Someone who has (today’s) bread in his basket, and asks, ‘What will I eat tomorrow?’ lacks faith”?^[19] Aren’t Chazal teaching us that someone who plans for tomorrow’s livelihood lacks proper trust in Hashem?

The answer is no. This last passage is discussing people’s beliefs. Everyone must believe that Hashem provides for him and that whatever happens is under His control. One may not say, “What will I eat tomorrow?” thereby ignoring Hashem’s supervision. However, this does not mean that making practical plans for the future is a violation of bitachon, provided one fully realizes that everything comes from Hashem and is dependent on Him.

The Manna

However, there is another passage of Gemara^[20] that may indicate otherwise:

“Rabbi Shimon ben Yochai’s disciples asked him, ‘Why did the manna not fall for the B’nei Yisrael once a year (for the entire year)?’ He answered them, ‘I will give you a parable. A human king once provided his son with support on an annual basis. The son visited his father once a year to receive his allowance. Wanting to see his son more often, the father altered the system and began providing his son with support on a daily basis. Thereafter, his son visited his father every day. Similarly, the head of a large household worried that no manna would fall on the morrow; thus he would pray daily for sustenance.” Doesn’t this Gemara imply that it is better for one’s parnasah to arrive one day at a time than to plan for the future?

The halachic authorities provide two answers to this question that are dependent on the dispute between Rav Vozner and Rav Moshe mentioned earlier. According to Rav Vozner, this Gemara reflects the ideal: a great tzaddik should indeed receive his parnasah one day at a time. However, most people are not at this level of faith and may plan for the future. According to Rav Moshe’s approach, the Gemara means that a person should mentally acknowledge every day that Hashem provides for all his needs; however, he is permitted and required to make hishtadlus, which includes planning for future needs. It should be noted that all the poskim that I have seen discussing this issue rule that purchasing life insurance qualifies as normal hishtadlus.

In this context, it is worthwhile to quote a Midrash that demonstrates the obligation to make hishtadlus. Quoting the pasuk,^[21] “L’ma’an yevorechecha Hashem Elokecha b’chol ma’asecha asher ta’aseh,” “So that Hashem Your G-d will bless you in all your deeds that you will perform,” the Midrash points out that the last two words of the posuk, “asher taaseh,” “that you will perform” are seemingly superfluous, because the Torah already stated, “b’chol ma’asecha,” “in all your deeds.” What is added with the words, “that you will perform?”

The Midrash^[22] explains, “The Torah states, ‘Keep the mitzvos.’ I might think that he should do nothing and expect his parnasah to come automatically? Therefore, the Torah repeats, ‘that you will perform.’ If you work, you will receive blessing, and if you do not work, you will not receive blessing." This Midrash proves that one has a responsibility to earn parnasah.

Issue #3  — Succeeding in Divine Judgment

I have heard people give yet another reason why someone should not purchase life insurance. What happens if a husband does not have the personal merit to guarantee longevity, while his wife and children do have the merit or the mazel (fortune) to live financially secure lives? In a case like this, the husband would live a long productive life as their provider. By purchasing life insurance, which guarantees their sustenance even without his presence, he jeopardizes his life, since his dependents are now provided for should something bad happen to him.

In the one halachic source that I saw mention this concern, the author, Rav Yitzchok Sternhell zt”l, quoted the exact opposite approach in the name of the Shinaver Rav (Rav Yechezkel Shraga Halberstam zt”l, author of Divrei Yechezkel), who was one of the greatest halachic authorities of his day in Galicia. The Shinaver contended that buying life insurance should provide longevity. He argues that since the mazel of the people who own insurance companies is to become wealthy, their mazel will prevail and prevent them from losing money by having to pay out life insurance policies. Thus, purchasing a policy actually rallies mazel to one’s side and does not jeopardize one’s life.^[23]

Another counter-argument runs as follows: If loss of merit is a concern, then there is valid reason to refrain from accumulating any wealth. The family members of a man who ekes out a daily existence are far more dependent on their breadwinner than are the wife and children of a wealthy man, since he will leave them with an appreciable inheritance should something happen to him. Thus, one could argue that accumulating wealth is not in one’s best interest, an approach that does not have too many advocates. I have never seen anyone refrain from accumulating wealth because of this concern, and neither have I seen any halachic authority suggest this as a reason to avoid affluence. Therefore, I conclude that this is not a factor in the question of purchasing life insurance.

Conclusion

In conclusion, I am aware of thirteen written teshuvos^[24] (responsa) on the purchase of life insurance or annuities, written by authorities representing Litvishe, Chassidishe and Sefardic approaches. All thirteen teshuvos permit purchasing life insurance, and some encourage the practice strongly.

Rav Meir Shapiro, the Rosh Yeshivah of Yeshivas Chachmei Lublin, had a very large life insurance policy, even though he unfortunately had no children. His reason was that since fundraising for the yeshiva was completely on his shoulders, he was concerned that in the event of his premature death, the yeshiva would be forced to close. We see that he was not concerned with any of the above issues and felt that purchasing insurance was an appropriate course of action.

May we all be blessed with long years and good health.

^[1] Kesubos 8b

^[2] Berachos 19a

^[3] 239:7

^[4] Menachos 41a

^[5] Beis Yosef, Bach and Gr’a to Yoreh Deah 339; Mishneh LaMelech, Hilchos Aveil 4:5

^[6] Shu’t Rivash #114 as explained by Bach, Yoreh Deah 339

^[7] Shu’t Rivash #114

^[8] Shu’t Be’er Moshe 8:118, quoting Shu’t Lechem Shelomoh by Rav Shelomoh Zalman Ehrenreich, #68; Shu’t Yechaveh Daas 3:85

^[9] Berachos 60a

^[10] Kiddushin 82a

^[11] Eruvin 13b

^[12] Sefer HaMikneh, Kiddushin 82a. See Kochavei Ohr of Rav Yitzchak Blazer (colloquially called Rav Itzele Peterburger, because he once served as the Rav of St. Petersburg), the disciple of Rav Yisrael Salanter, Chapter 11, for a description of the difference between these two types of people.

^[13] Shu’t Igros Moshe, Orach Chayim 2:111; see also Orach Chayim 4:48).

^[14] We should note that Rav Samson Raphael Hirsch also follows this approach numerous times in his commentary on the Torah.

^[15] Shu’t Shevet HaLevi 4:1:2

^[16] Kiddushin 41a

^[17] Shu’t Yechaveh Daas 3:85; Shu’t Kochavei Yitzchak 1:22, both quoting several other authorities.

^[18] Both Shu’t Be’er Moshe 8:118 and Shu’t Teshuvos VeHanhagos 4:325 also reach the same conclusion and bring support to this conclusion from several other Talmudic passages and concepts. To keep this chapter reasonably small I have omitted his proofs. In addition, Shu’t Teshuvos VeHanhagos provides sources that a person cannot selectively apply bitachon to say medical issues. One should be consistent in how he bases his decisions on bitachon. The reader is encouraged to read their responsa on the subject.

^[19] Sotah 48b

^[20] Yoma 76a

^[21] Devarim 14:29

^[22] Midrash Shocher Tov, cited by Shu’t Yechaveh Daas 3:85

^[23] Shu’t Kochavei Yitzchak 1:22

^[24] In addition to the above quoted sources and sources that they quote, see Koveitz Teshuvos 1:19 a letter from Rav Elyashiv to Rav Elya Svei and Rav Malkiel Kotler encouraging Torah institutions to provide their educators with life insurance policies.

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.

Dei Machsoro: the requirement to provide all the needs of a poor person, including luxury items that he became accustomed to when he was in a better financial situation.

Takanas Usha: a rabbinic injunction that prohibits spending more than one-fifth of one’s property on tzedakah or on any other mitzvah, lest one become destitute as a result. According to some opinions, this takanah does not apply to someone who will not become destitute as a result.

Ani Bifanav: when I am aware of a poor person whose needs are not attended.

Ayn Ani Bifanav: when I am not currently aware of a poor person whose needs are not being attended to.

Maaser Kesafim: giving ten percent of one’s moneys to tzedakah. The poskim dispute whether one subtracts household expenses from one’s income before calculating maaser.

The concept of maaser is primarily in the case of ayn ani bifanav, when I fulfill it by putting aside this much money for tzedakah. In a case of ani bifanav I do not fulfill my mitzvah by giving him only ten percent.

A person who distributes maaser kesafim to the poor is blessed with a special guarantee of wealth. This bracha occurs only if one is meticulous at calculating exactly a tenth of one’s income for tzedakah (Shu’t Avkas Rocheil #3). Furthermore, this bracha is fulfilled only if one gives this maaser money to the poor, but if one gives part of it to other causes, there is no guarantee that wealth will follow (see Shu’t Radbaz 3:441). Therefore, although one may use maaser kesafim to buy an aliyah, pay for a “mi’shebeirach,” purchase sefarim that will be used by the tzibur (Taz 249:1) or similar communal needs, it is preferred to earmark maaser kesafim for the needs of the poor (Rama 249:1). Donations to Torah institutions are considered distributions to the poor (Ahavas Chesed 2:19:2), as are hachnasas kallah expenses (to pay wedding and related expenses for a poor groom or bride).

The Chofetz Chayim recommends dividing one’s maaser as follows: two-thirds for distribution to the poor (including local chinuch and tzedakah institutions) and one-third for gemach loan funds that also benefit the poor (Ahavas Chesed 2:18). One should check with one’s local Rav whether this formula should be followed in light of local tzedakah needs.

Chomesh: giving twenty percent of one’s moneys to Tzedakah. This is the optimal level of fulfilling mitzvas tzedakah, whereas setting aside ten percent is considered only “midah beinonis,” an average person’s conduct. Someone who gives a chomesh to tzedakah should first calculate and set aside one tenth, and then a second tenth. This will guarantee that he receives the bracha of wealth mentioned above as well as a lot of extra reward. Furthermore, whereas the first maaser should preferably be given to the poor as mentioned above, the second maaser may be donated to other charitable causes. If possible, the first ten percent should be given to poor talmidei chachamim and Torah institutions (Ahavas Chesed 2:19:3).

Yissachar-Zevulun partnership: An arrangement whereby one person (Zevulun) assumes responsibility to support someone else (Yissachar) so that Yissachar can immerse himself completely in Torah without concern about making a living. In a true Yissachar-Zevulun partnership, Yissachar and Zevulun are complete partners, Yissachar receiving half of the profits of Zevulun’s business while Zevulun receives half of the reward of Yissachar’s learning.

Traveling Ani: One does not have to give a poor person who is traveling from place to place more than a minimum donation (Mishnah Peah 8:7; Shulchan Aruch, Yoreh Deah 250:3,4). However if he is a respected person, one should provide for him appropriately.

HOW MUCH TZEDAKAH SHOULD I BE GIVING?

Based on the above information, we are now ready to determine how much tzedakah I should be giving and to which causes.

Before starting to give regular amounts of tzedakah on an ongoing basis, one should declare that he is following this procedure bli neder, without accepting it as a vow. Also one should say that if one donates more than a chomesh of one’s income to tzedakah in one year, that the extra can be counted as part of the next year’s tzedakah calculation (Ahavas Chesed 2:18:2). The reason for the last condition is because some poskim otherwise require one to begin a new maaser calculation each year even if one gave more than his share the year before.

Preferably, a person should begin by calculating twenty percent of his net moneys for tzedakah purposes (Yerushalmi quoted by Tosafos Kesubos 50a). First, one calculates twenty percent or at least ten percent of one’s cash or cash-equivalent inventory. A newlywed couple should begin with their wedding presents; other people should begin with their accrued savings (assuming that they have not yet given tzedakah). If the couple intends to be in kollel, they should ask a rav whether they should distribute this money to tzedakah or whether they may keep it for their own kollel needs (see Rama, Yoreh Deah 251:3; Shu’t Igros Moshe, Yoreh Deah 2:112).

The Chofetz Chayim suggests that someone who finds it difficult to give away ten percent of his principle should instead set it up as a loan fund (gmach) from which he himself is permitted to borrow if necessary (Ahavas Chesed 2:18).

As mentioned above, the poskim dispute whether one subtracts family living expenses from one’s income before making these tzedakah calculations. Ask your rav for his opinion.

This, in short, is how maaser is calculated. Whenever giving tzedakah, one should do so with a happy countenance and make the poor person feel good (Shulchan Aruch 249:3).

As mentioned last week, someone who has a secure and adequate income may give more than a tenth or a fifth to tzedakah. One is also permitted to give more than twenty percent of one’s income to support Torah study (yeshivos, kollelim, chadorim and talmidei chachamim).
HOW DO I PRIORITIZE MY TZEDAKAH DISTRIBUTION?

FAMILY FIRST

Family comes first. Someone who has destitute relatives or family members studying in yeshiva or kollel, should give them top priority. This includes supporting one’s sons in yeshiva and kollel (Shulchan Aruch, Yoreh Deah 251:3; see also Pischei Tshuvah 249:2).

Someone who cannot meet the financial needs of his own family should spend all his tzedakah funds on their needs (Rama, Yoreh Deah 251:3 and Gra ad loc.).

Community tzedakah funds should not be used to support someone as long as there are family members who can be leaned on for support (Shulchan Aruch, Yoreh Deah 251:4).

CAN I PAY TUITION FROM MAASER FUNDS?

Rav Moshe Feinstein ruled that one should not pay tuition for sons and daughters in elementary school and high school from maaser funds. However, someone who refrains from taking a tuition reduction for which he is eligible may pay the difference from maaser (Shu’t Igros Moshe, Yoreh Deah 2:113; also see Ahavas Chesed 2:19:2). If paying tuition without resorting to maaser funds creates hardship, one should ask a shaylah. Yeshiva gedolah tuition and expenses may be paid from maaser.

HOMETOWN ADVANTAGE

Tzedakah moneys should be distributed locally rather than sent out-of-town (Gemara Bava Metzia 71a). Thus, after meeting one’s family obligations, one should distribute the majority of one’s remaining tzedakah to local community needs. One should make sure to set aside enough money to give a small contribution to each person who comes to the door for a legitimate cause.

When there are limited resources, support of talmidei chachamim precedes non-talmidei chachamim (Shulchan Aruch, Yoreh Deah 251:9). However, supporting local poor people precedes giving to out-of-town talmidei chachamim (Pischei Tshuvah 251:3).

Many poskim contend that out-of-town yeshivos that teach students from one’s city should not be treated as an out-of-town institution since they are educating local children.

I once heard an insightful story about the Chofetz Chayim from my Rosh Yeshivah, Rav Yaakov Ruderman, zt”l. When the Chofetz Chayim was in Vilna, he noticed many poor people from Brisk who had traveled to Vilna for financial help, and when he was in Brisk he noticed poor people there from Vilna. Surprised that the poor were traveling out-of-town for tzedakah, the Chofetz Chayim explained, “The Yetzer Hara tries very hard to stop Jews from keeping mitzvos. However, when it comes to giving tzedakah he has no success, since Jews are such merciful people that they always give. Instead the yetzer hara gets them to fulfill the mitzvah incorrectly. In this case, each city did not fulfill the mitzvah correctly since it did not provide sufficiently for its own poor, thus forcing them to travel for support.”

ERETZ YISROEL VERSUS CHUTZ LA’ARETZ

When distributing tzedakah funds to out-of-town people, those who live in Eretz Yisroel should be given more than those from Chutz La’Aretz (Shulchan Aruch, Yoreh Deah 251:3; see Shach).

LIMITED RESOURCES

One should always give precedence to people who need food over people who need clothing (Gemara Bava Basra 9a; Shulchan Aruch, Yoreh Deah 251:7). Life-threatening emergency situations should be prioritized. In most instances, one should prioritize to provide tzedakah to a needy woman ahead of a man.

IF I HAVE USED UP MY CHOMESH FUNDS…

One should never turn away a poor person empty-handed. If one has no more tzedakah to distribute, give the poor person a token donation “borrowed” from future maaser calculations (see Aruch HaShulchan 249:7) and make extra effort to boost the spirits of the poor person After all, it is very embarrassing to ask for financial help, and more uncomfortable to receive only a token gift in response.

If someone has already distributed his tzedakah requirements, he is not required to answer mail solicitations. (Nevertheless, I personally try to make a token contribution in order to participate, at least minimally, with people involved in a mitzvah [see Mishnah Makos 5b].)

TURNED DOWN

Question: I tell a solicitor at my door that I cannot give more than ten dollars to his worthy cause, and he refuses to accept it. Did I fulfill the mitzvah of tzedakah? Am I required to give him more?

Answer: Assuming that one has faithfully fulfilled the guidelines presented above, he is not required to give more if the solicitor refuses the donation. However, one has not fulfilled the mitzvah of tzedakah since the donation was not accepted (Shu’t Rashba #18; see also Derech Emunah, Hilchos Matanos Aniyim 7:1 in Biyur Halacha; cf. Beis Hillel, Yoreh Deah 248).

THE NEGLIGENT POOR

Question: Am I responsible to help someone who became poor by squandering all his money?

Answer: Rav Moshe Feinstein rules that I am, since he cannot afford essentials at this juncture (Shu’t Igros Moshe, Yoreh Deah 4:37:3).

However, the mitzvah of tzedakah does not require us to make someone wealthy (Gemara Kesubos 67b) by providing him with a lifestyle greater than what he is accustomed to. This reminds me of a family I knew who consistently spent beyond their means and always accumulated debts that they could not repay. I asked a shaylah whether there was a mitzvah of tzedakah to help them. I received a psak that although it would be a chesed to help them, it would not be considered tzedakah. (Incidentally, it is absolutely forbidden to borrow money if one cannot repay it.)

LAST WEEK’S SHAYLOS

I now return to the three shaylos that I raised in the previous article.

Question: There is a knock on my door, and I find myself face-to-face with a stranger holding a letter from the local Vaad HaTzedakah. The letter testifies that he needs surgery but has no medical insurance to pay for it. How much should I give him?

Answer: Although this person desperately needs surgery and medical attention is a high priority, I am not required to make a major contribution to assist him since he is collecting door-to-door for his needs. Of course, if one wishes one can give him a major contribution.

Question: The mailman’s daily delivery includes a solicitation from an internationally renowned yeshivah. How big a check should I place in the return envelope?

Answer: Based on the opinion that out-of-town yeshivos that educate local students have a right to claim that they are servicing a local tzedakah need, this yeshivah should have a right to collect ahead of an out-of-town institution. Thus, one should treat this as an important tzedakah, although the local Torah and tzedakah institutions come first.

Question: My neighbor has been out of work for a while. The family is embarrassed to ask for help, but I know that they are hurting terribly. I can help them discreetly without their discovering the source of the money. How much should I give them?

Answer: Assuming that there is no local tzedakah that can assist him, one should consider this person’s needs high priority. If there is a local tzedakah that will help him, alert the gabbayei tzedakah and figure out a method of helping the needy neighbor without jeopardizing his self-dignity.

The neighbor’s attempt to avoid receiving tzedakah funds is highly meritorious. Chazal say, “Someone who needs to receive tzedakah funds and refrains from accepting will not depart this world without having sufficient means to support others,” (Mishnah Peah 8:9). I know someone who strived to fulfill this concept. After losing his job, he lived very frugally and worked whatever he could find to keep his family from receiving tzedakah. He attests that Hashem supported his family by totally supernatural means. For example, one of his “gifts” from Heaven was a sizeable inheritance from a great-aunt whom he hardly knew!

TESTING HASHEM

It is generally prohibited to “test” Hashem as the Torah states, “Lo senasu es Hashem,” “Do not test Hashem,” (Devarim 6:16). One may not say, “I am performing this mitzvah so that Hashem will reward me by providing me with such-and-such (Sefer Yerayim #361; Chinuch Mitzvah 395, 424; Shu’t Radbaz #882).

However, there is one exception to this rule – one may give maaser kesafim expecting to be blessed with wealth as a reward (Gemara Taanis 9a, as explained by Shu’t Avkas Rocheil #3; Rama, Yoreh Deah 247:4; Sefer Hassidim #144; Ahavas Chesed 2:18. Cf. Shl”a and Yaavetz #3, quoted in Pischei Tshuvah 247:2).

The Gemara relates that after Reish Lakeish’s passing, Rabbi Yochanan encountered his nephew (who was Reish Lakeish’s son). Rabbi Yochanan asked his nephew what he had learned in cheder that day. The nephew replied, “Te’aser kedei shetisasher,” “Give maaser so that you get rich.”

“How do you know?” asked Rabbi Yochanan.

“Go test it,” answered the nephew, who then asked, “but one is not permitted to test Hashem?”

Rabbi Yochanan replied, “I heard from my rebbe, Rabbi Hoshiyah, that this is an exception because of the pasuk in Malachi (3:10), where Hashem begs us to test Him when giving maaser and see for oneself that He opens the windows of heaven and grants blessings until our lips weary of saying ‘Enough!’”

We see from this that it is permitted to declare that I am giving the correct amount of tzedakah and expect that Hashem will reward me with wealth. I know several people who personally attest that this bracha was fulfilled!

One situation involved a man I knew by the name of Michael. Michael was in very difficult financial and personal circumstances and came to ask me advice about giving tzedakah. I suggested that he set aside maaser and use the amount for his family’s own unmet needs. He asked me, “Isn’t this just a game? I am not distributing tzedakah moneys elsewhere anyway!”

I explained to him about the bracha of wealth for someone who sets aside maaser, and that he is following the Torah’s instructions for distributing tzedakah under his circumstances since his family comes first. Then I suggested that he accept, bli neder, to set aside chomesh (as explained above) from any new, unexpected income he receives. I asked him to keep me posted.

A few months later Michael returned. He indeed had put my suggestion into practice and reported that he had paid off all his extensive outstanding debt. Furthermore, his marriage, which had been suffering from the financial strain, was also much improved. “I have only one thing to attribute this success to — making sure that I pay my two maasers to tzedakah accurately. It works like a charm!”

May we all always be showered with brachos for contributing generously to tzedakah!

There is a knock on my door, and I am face-to-face with someone holding a letter from the local Vaad HaTzedakah. The letter introduces him as an individual in need of surgery but without medical insurance to pay for it. How much should I give him?

The mailman’s daily delivery brings a solicitation letter from an internationally reknown yeshivah. How large a check should I place in the return envelope?

My neighbor has been out of work for a while. The family is embarrassed to ask for help, but I know that they are hurting terribly. There is a discreet way of helping them whereby they will never find out the source of the money. How much should I give them?

These are shaylos we face daily. Do we know the halacha guidelines how much to give?

Before we begin to discuss the details of these halachos, we should reflect for a moment on the importance of the mitzvah of giving tzedakah. When we give tzedakah we emulate Hashem’s deeds, since He is constantly giving tzedakah. It is for this reason that “whoever has mercy on the poor, Hashem will have mercy on him” (Shulchan Aruch, Yoreh Deah 247:3; see Gemara Shabbos 151b). When a person listens to the supplication of the poor and gives him tzedakah, Hashem listens to him and provides him with parnasah (Rama Yoreh Deah 247:3). A person should always realize that as much rachmonus as he has on others, Hashem has on him. For this reason, tzedakah tears up any evil decree (Gemara Rosh Hashanah 16b).

In addition, giving tzedakah is rewarded monetarily, so one does not lose by giving tzedakah. As the Rambam teaches us, “No one ever became poor from giving tzedakah nor did anything bad or any harm come from it” (Rambam, Matanos Aniyim 10:2; Shulchan Aruch, Yoreh Deah 247:2). Someone who gives ten percent of his income to tzedakah will be rewarded with wealth. Yitzchak Avinu distributed ten percent of his profits to the poor and was rewarded that he received back one hundred times what he gave (Pirkei D’Rabbi Eliezer #33). How many investments do you know that pay back a 10,000 % return, which is what Yitzchok received!

Before we deal with specific halachic cases, we need to explain some of the concepts of the laws of tzedakah. Because of the complexities and importance of the issues involved, this week’s article will deal primarily with the principles of hilchos tzedakah, whereas next week’s article will focus on practical applications.

HOW MUCH ARE WE REQUIRED TO PROVIDE A NEEDY PERSON?

Once a person qualifies to receive tzedakah (the criteria by which this is determined will be explained IY”H next week), the Torah required us to provide him with his entire needs. What is included in his needs? It certainly includes his basic living necessities of food, adequate clothing, and a proper place to live. It also includes enabling him to get married, including setting up a household with all its necessities (hachnasas kallah). It also includes providing him with whatever he was used to when he was in a better financial situation.

DEI MACHSORO

People find surprising that we are required to provide someone needy with items that other people consider luxuries. This halacha is derived from the following pasuk: “When one of your brethren will be needy … do not harden your heart and do not close your hand from your needy brother. However, open your hand and give him as much as he lacks, whatever he is lacking” (Devarim 15:7,8). The pasuk closes with a very obvious redundancy (“as much as he lacks, whatever he is lacking”). This teaches that we are required to provide him with “as much as he lacks,” in Hebrew “dei machsoro,” even if other people would not be considered “lacking” if they were without this item. This is the source for the famous story where Hillel provided a pauper who came from a wealthy family with a servant to run before him since this was the accepted lifestyle he grew up with (Gemara Kesubos 76b). On the other hand, we are not required to make his wealthy.

What is the difference? If he was once a man of legitimate means and became used to a certain lifestyle, then to him it is poverty to manage on a lower financial level. But I have no responsibility to provide him with a lavish lifestyle that he was never accustomed to.

THE COMMUNITY TZEDAKAH FUND

In earlier generations, every Jewish community had a system of providing for the poor. The community appointed “gabbayei tzedakah” who were empowered to make weekly collections for the local tzedakah needs. These gabbayim evaluated how much each member of the community should give (according to his means), assessed him appropriately, and collected the moneys (Rambam, Matanos Aniyim 9:1; Shulchan Aruch, Yoreh Deah 156:1). Someone who felt the gabbayim had assessed him for more than he could afford could challenge the assessment in a beis din.

One can imagine that the gabbay’s job was not a pleasant one, yet it was absolutely necessary. For this reason, only the finest people were chosen for this job (see Gemara Pesachim 49b; Bava Basra 8b), and also for this reason Chazal say, “Gadol hame’aseh yosair min ha’oseh,” “the one causing others to give tzedakah is greater than the person giving the tzedakah” (Bava Basra 9a).

One of the unfortunate results of being in our galus is that we no longer can enforce the authority of the gabbayei tzedakah. For this reason, tzedakah organizations are dependent on voluntary contributions. The unfortunate result of this situation is that the community’s tzedakah’s needs are never met adequately, and the needy are almost never provided with “dei machsoro.” Thus, those in charge of distributing tzedakah funds are often placed in the unenviable position of having to decide how much to give each individual. Deciding tzedakah priorities with limited resources is a lengthy halacha discussion.

It should be noted that the gabbayei tzedakah were primarily responsible to provide for local tzedakah needs. If someone came from out-of-town requesting tzedakah help, he was provided with only a small contribution (Mishnah Peah 8:7; Shulchan Aruch Yoreh Deah 250:4 and Shach).

IS DEI MACHSORO A COMMUNITY RESPONSIBILITY OR AN INDIVIDUAL’S?

Many poskim contend that dei machsoro is primarily the responsibility of the community’s tzedakah fund (Rama 250:1). Others disagree, contending that the individual still has a responsibility to take care of dei machsoro of the needy (Rambam; Bach). However, when the community is not providing dei machsoro, all agree that the individual is responsible for all the poor person’s needs if he can (Rama). Therefore, if a needy person requests financial help, and I have the financial means to provide whatever he needs, I am required to. (However, if the poor person is soliciting door-to-door, I do not have to give more than a minimal donation, as will be explained later.) Some poskim rule that if providing dei machsoro is more than twenty percent of my net earnings, I am not obligated to provide all his needs, but only twenty percent of my earnings (Rambam, Peirush Hamishnayos Peah 1:1). I will explain shortly how one calculates “earnings.”

“ANI BIFANAV”

Most of the above discussion is describing a case referred to by the poskim as “ani bifanav,” literally, “a poor person is before him.” This means that I am aware that there are poor people whose needs are not fully provided. In our day, we are always in a situation of “ani bifanav,” since we always know of tzedakah organizations that try to provide for the needy but do not have sufficient funding to provide all their needs. However in earlier generations, people did not always have contact with someone who was not provided for. This is referred to as “ayn ani bifanav,” there is no poor person before him. In such a situation, one should still set aside money for distribution to tzedakah.

HOW MUCH SHOULD ONE SET ASIDE IN A CASE OF AYN ANI BIFANAV?

Rambam and Shulchan Aruch rule that one should preferably set aside twenty percent for tzedakah, and that a person who is “midah beinonis,” neither miserly nor overly generous, sets aside ten percent.

SETTING UP A SYSTEM TO GIVE MAASER

The Chofetz Chayim (Ahavas Chesed 2:18) suggests setting up the following system to guarantee that one gives ten or twenty percent of one’s income to tzedakah. Although it involves a bit of bookkeeping, it is definitely worthwhile.

Because of reasons beyond the scope of this article, it is a good idea to state that one is following this practice bli neder. Chofetz Chayim also suggests making a condition that he is entitled to estimate expenses. We will soon see why he makes the second condition.

Whenever one receives income, he calculates what expenses were incurred in earning this money and writes down the amount in his income ledger. In a separate column in his ledger, he subtracts his household expenses.

There is a dispute among poskim whether household expenses can be deducted from income before one calculates maaser. Some poskim rule that one may deduct household expenses from income and only needs to calculate maaser on the net amount that is left (Shu’t Avkas Rocheil #3; Ahavas Chesed 2:18). Others disagree (Aruch HaShulchan 249:7).

In a separate place in the ledger, he calculates all tzedakahs donated, even small amounts placed in a pushkah or at the door. He should certainly include ongoing tzedakah responsibilities, donations to local institutions and tzedakahs.

Periodically make a cheshbon to see whether you gave more or less than maaser. At that time, if one has given less than maaser, put aside the extra money for maaser purposes. In the interim, he may borrow the money for his own needs (Ahavas Chesed 2:18:1).

A BRACHA

Chazal tell us that someone who sets aside a tenth of his income for tzedakah is rewarded with a bracha of wealth. The Gemara even states that one is permitted to test Hashem to see that this bracha is fulfilled, something that is otherwise strictly forbidden (Gemara Taanis 9a). We will discuss next week IY”H how one “tests” Hashem.

IS IT TRUE THAT ONE MAY NOT GIVE OVER A CERTAIN AMOUNT TO TZEDAKAH?

After the destruction of the Second Beis HaMikdash, the Sanhedrin relocated several times and was once situated in a town name Usha. While in Usha, the Sanhedrin made several important takanos (permanent rulings). One of these takanos forbade a person from distributing more than twenty percent of his property to tzedakah lest he himself become needy (Gemara Kesubos 50a). This ruling is referred to as the “Takanas Usha.”

[The Chofetz Chayim (Ahavas Chesed 2:20:5) points out this takanah implies that one should never spend more that twenty percent of one’s savings on any item. (Presumably, one’s residence is an exception.) If Chazal ruled that one may not spend more than twenty percent of one’s property for tzedakah, one certainly should not spend this much for any other purpose. Furthermore, one should be careful to avoid purchasing luxury items, since it is very to become accustomed to an expensive lifestyle. Unfortunately, this sometimes results in having difficulty purchasing the necessities of life, as we often see happen.]

A superficial understanding of the Takanas Usha would lead one to strange (and inaccurate) conclusions. Reading the Takanah literally, it would seem that even a wealthy individual may not give more than one-fifth of his property to tzedakah because he may become a tzedakah case himself. Why should this be so? If he has considerable savings, perhaps so much that he could not figure out how to spend all this money in a lifetime, yet is he not permitted to give away more than twenty percent of what he owns? Surely, this could not be what was intended by the Takanas Usha.

The Chofetz Chayim (Ahavas Chesed 2:20:1,3) explains that this is a misunderstanding of the Takanas Usha. Since the reason for the Takanah was to make sure that someone does not become destitute, it applies only to someone whose income does not provide generously for his family. Someone who has a job or business that provides adequately for his family is permitted to give everything above his needs to tzedakah even if it is more than twenty percent of his income or his holdings.

The following story bears out this ruling. In the days of King Munbaz (one of the Chashmonayim kings) there was a drought, and he distributed the entire royal treasury, accumulated over several generations, to the poor. His family members protested, saying that his predecessors had all increased the wealth of the monarchy, and King Munbaz was disbursing it. Munbaz responded, “My ancestors stored below, and I stored above. They stored their wealth in a place where it could be stolen and I stored in a place from where it cannot be stolen. They stored items that do not reproduce and I stored items that produce profits. They stored money and I stored lives. They stored for others, and I stored for myself” (Gemara Bava Basra 11a). Thus we see that it is permitted for someone wealthy to give away more than twenty percent of his income for tzedakah needs.

There are a few other instances when it is permitted to give more than twenty percent to tzedakah. As mentioned above, one case is where someone’s dei machsoro is greater than twenty percent of my income (Rambam, Matanos Aniyim 7:5; Shulchan Aruch, Yoreh Deah 250:4; Ahavas Chesed 2:19). This is assuming that I can provide dei machsoro without being hard-pressed to take care of my family’s needs. If paying the poor person’s needs will make me hard-pressed to provide for my family, I am not required to pay “dei machsoro.”

YISSACHAR-ZEVULUN PARTNERSHIP

Another case where I am permitted to give away more than twenty percent of my income is if I commit myself to a Yissachar-Zevulun partnership. This means that I commit myself to support someone so that he can learn Torah.

The Tribe of Zevulun provided for all of Yissachar’s financial needs and they become partners. Zevulun provided half his income to Yissachar, and Zevulun received half the reward. In a true Yissachar-Zevulun partnership, the person learning Torah is provided half the profits of the business, and the businessman is provided with half the reward in Olam Haba for the learning (Midrash Rabbah Bamidbar 13:17; Shach Yoreh Deah 246:2). This can be done whether or not one has a business. Thus, the Zevulun partner commits himself to provide far more than twenty percent of his disposable income to support the learning of Yissachar.

The Midrash declares, “Why did Zevulun merit to be the third tribe to offer korbanos at the dedication the mishkan? Because they treated the Torah dearly and spent money lavishly on Yissachar, thus enabling Yissachar to be totally devoted to learning.” As a result, in the course of time, Yissachar produced two hundred heads of the Sanhedrin, and Zevulun was given the credit (Midrash Rabbah, Bamidbar 13:17).

Anytime someone provides money to enable others to learn Torah he receives tremendous reward for the support of Torah learning. The unique feature of a Yissachar-Zevulun relationship is that the profits for the business are also divided equally. However, even if someone is not involved in a formal Yissachar-Zevulun relationship, he may donate over twenty percent of his income to Yeshivos, Chadarim, Kollelim, or talmidei chachamim (Ahavas Chesed 2:20:4).

PIKUACH NEFASHOS

If someone is collecting money for a pikuach nefashos situation, the Takanas Usha does not apply and one may contribute over twenty percent (Aruch HaShulchan 249:5).

OTHER EXCEPTIONS

A person who is terminally ill is permitted to give away tzedakah money without being limited by the Takanas Usha. The Gemara tells us that Mar Ukva, who was known as a big baal tzedakah, knew that he was terminally ill. He asked that he be brought his tzedakah calculations, which amounted to the fantastic sum of 7000 dinarim. His response was “such a small amount prepared for such a long way” and gave away half of what he had left. The Gemara asks, how was he permitted to give away so much to tzedakah, one is not permitted to give away more than a fifth of one’s property to tzedakah? The Gemara answers that the Takanas Usha was established so that one not become needy later in life. However, to give away large sums of money immediately prior to one’s demise is permitted (Gemara Kesubos 67b; Rama, Yoreh Deah 249:1). For this reason, a person is permitted to give away in his will a large percentage of his property to tzedakah. In a previous article we discussed how one does this in a way that is halachically effective.

I HAVE EXCEEDED MY LIMIT

What should I do if my family’s responsibilities are great, and I simply cannot afford to give someone soliciting me significant moneys. I should never turn someone away empty handed. Even if I am not obligated to give him more because I have already exceeded my limit, I should still give him a token contribution. If I have absolutely nothing to give him, then I should make certain to leave him with a positive feeling.

If I am solicited for a donation that is beyond my means, I should tell the solicitor how badly I feel that I cannot give him an appropriate amount, but try to make him feel good and then give him a very small contribution (Yoreh Deah 249:4).

I will continue with the practical applications of tzedakah based on these principles.

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.

Mendel Greenberg has been unable to resolve a matter with one of his suppliers. He has attempted to discuss the matter with him, but the last time he tried, the phone was abruptly slammed down. To his chagrin, Mendel realizes that he has no choice but to sue the supplier. Not knowing how to proceed, he makes an appointment with his rav to discuss what to do.

PROHIBITION OF USING NON-HALACHIC COURTS

After Mendel finishes explaining his predicament, his rav explains that it is absolutely forbidden for a Jew to submit litigation against a fellow Jew in a secular court, even if both parties agree (Gemara Gittin 88b; Rashi and Ramban, beginning of Parshas Mishpatim). This is known as the prohibition against using arka’os, or non-halachic courts. When a person chooses a civil court for one’s litigation instead of the Torah’s system, one implies that one does not believe that the system set up by Hashem is the best one. According to the Midrash, this is a chillul Hashem (Midrash Tanchuma, Mishpatim #3).

Unfortunately, even frum people sometimes assume that legal rights and responsibilities are governed by secular law. A Torah Jew must realize that every aspect of life is directed by Torah – including how one litigates. The true believer in Hashem understands that the only procedures to be followed are those sanctioned by the Torah.

In addition to the severe prohibition against using arka’os, someone who submits litigation to civil court will probably end up stealing by receiving money to which one is not entitled, according to halacha. The fact that a court ruled in the plaintiff’s favor, or that the defendant chose to settle rather than contest the court case, does not permit taking ill-gained money.

“I am well aware of the problem,” says Mendel to his rav. “I personally know frum people who use the civil courts to resolve their matters.”

“Every generation has its nisyonos, its tests, of its resolve to observe Torah,” his rav sighs. “In our grandparents’ generation, it was Shabbos. During our parents’ generation, there were many difficult issues such as tznius, shatnez and proper standards of kashrus. In our generation, I find that one of the weakest areas of proper mitzvah observance is the usage of civil courts.

“Let me share a very recent incident with you,” the rav continued. “Someone hired a frum lawyer to resolve a legal problem. I discovered that the lawyer had filed a lawsuit in civil court. ‘Which rav has permitted filing a civil lawsuit?’ I asked the plaintiff. It turned out that the plaintiff was totally unaware that there was any halachic issue, and had relied on the halachic know-how of the lawyer! I explained the severity of the prohibition involved, and the matter was transferred to a beis din.

“Look how serious this prohibition is,” said the rav, pulling a sefer off the shelf. “Listen to this Rambam: ‘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’” (Hilchos Sanhedrin 26:7).

GOING TO JEWISH JUDGES

“Are Israelis allowed to use their civil courts that employ Jewish judges?” asked Mendel.

The rav pulled another sefer off his bookshelf and began reading the following passage from a sefer of the Chazon Ish:

“‘There is no halachic difference between going to gentile judges and going to Jewish judges who use non-Torah laws. As a matter of fact, it is far worse to go to Jewish judges who have traded away a Torah system for a worthless, empty system. Even if the city residents have accepted this court’s system and authority, their acquiescence has no validity. To force someone to follow this system has the status of stealing from them and of raising one’s hand against the Torah given to us by Moshe Rabbeinu’ (Chazon Ish, Sanhedrin 15:4). The identical ruling was issued by Rav Tzvi Pesach Frank and Rav Yitzchak Herzog.” (See Shu”t Tzitz Eliezer 12:82.

DINA DI’MALCHUSA DINA

“I have often heard that dina di’malchusa dina (secular civil law) determines halacha in business matters; isn’t it so here?” Mendel inquired.

Realizing that Mendel was not questioning his authority, but simply attempting to clarify this confusing issue, his rav gave him a patient reply.

“What you’ve just quoted is an incorrect understanding of dina di’malchusa dina,” he began. “Dina di’malchusa dina requires obeying rules of the government such as paying taxes and obeying traffic and safety regulations, and prohibits us from smuggling and counterfeiting. But it does not replace the civil laws of the Torah (the laws of Choshen Mishpat) that govern relationships between Jews, nor does it supplant the Jew’s responsibility to bring his litigation before a proper beis din.”

“I must say,” continued the rav sadly, “that I find it peculiar that often the same person who quotes dina di’malchusa dina when it does not apply, happily ignores it where it does apply. Interpreting business halachos conveniently without checking it out with a rav is another example of an unfortunate weakness prevalent in our generation.

“But please let me clarify one point,” the rav continued. “When I say that dina di’malchusa dina does not apply in litigation, this should not be confused with the similar concept of minhag hamakom.

“Certain areas of halacha, such as the contract laws for buying and hiring, are governed by the concept of minhag hamakom – that normative business practice determines what is halachically accepted. When a person agrees to a contract, both parties assume that they will be following what is normally done, unless it is specified otherwise. For this reason, the halacha regarding sales and employee rights is often governed by accepted practice. And since normal practice is influenced by civil law, these areas of halacha are influenced by civil law. This is not because halacha recognizes civil law, but because of the influence civil law has on business practice.

“However,” the rav concluded, “it should be noted that certain areas of halacha, such as laws of inheritance, are not affected by secular law at all” (Shu”t Rashba, quoted by Beis Yosef, Choshen Mishpat end of Chapter 26).

“How should I begin the litigation I came here to discuss?” asked Mendel.

TWO KINDS OF BATEI DIN

“There are two kinds of batei din,” replied his rav. “An established beis din or an ad hoc beis din known as ‘zabla.’ Zabla is the acronym for ‘zeh borer lo echod,’ because each party chooses one of the dayanim (judges) who will judge the case, and then those two dayanim choose a third person to join them and form a beis din.”

Mendel realizes that zabla will probably not benefit him, since it is doubtful that the supplier will willingly submit to arbitration of any type. Therefore, he asks his rav how he proceeds to apply for a beis din to hear his case. The rav refers him to the mazkir, the bailiff or representative, of a nearby beis din. The mazkir issues a summons to the supplier to appear before a beis din.

“What do I do if the supplier comes to beis din and then refuses to obey the decision?” Mendel asked the mazkir.

“Every beis din insists that the litigating parties agree to be bound completely by the decision of the beis din they use,” explained the mazkir. “In addition, beis din proceedings are binding in civil law as arbitration agreements. This means that once the parties sign an agreement submitting their litigation to beis din for arbitration, the civil court will uphold the beis din’s decision. If one party subsequently fails to honor the psak of the beis din, the beis din will authorize the use of secular authorities, if necessary, to enforce its ruling.”

Ultimately, the supplier ignored the summons to appear before the beis din, a serious halachic offence in its own right. Halacha requires a Jew to respond to a summons to appear before a beis din. The fact that it is an unpleasant experience is no excuse for not responding.

In the vast majority of cases, the defendant has the right to request that the case be heard in a different beis din or to request that the matter be decided through zabla. However, he is responsible to convey this intent to the mazkir beis din.

WHAT IF THE DEFENDANT REFUSES TO GO TO BEIS DIN?

What does Mendel do? Unfortunately, Mendel’s situation is neither uncommon nor recent, and apparently occurred even at the time of the Gemara (see Bava Kamma 92b, as explained by Rosh). If this happens, the required procedure is to file the case with a beis din. The beis din summons the defendant to appear. If the defendant fails to appear or indicates that he will not appear, the beis din authorizes the plaintiff to sue in secular court (Choshen Mishpat 26:2). Under these circumstances, the plaintiff has not violated the prohibition of going to civil courts since his suit was authorized by beis din.

The usual practice is to issue a summons to the defendant three times before authorizing the plaintiff to sue in secular court (Beis Yosef and Sma to Choshen Mishpat, Chapter 26, citing Rav Sherira Gaon). However, it should be noted that this is the prerogative of the beis din. If the beis din feels that the defendant will not heed an additional summons, they may authorize the plaintiff to sue in civil court after receiving just one rejection. Sometimes, the beis din’s representative might simply phone the defendant to find out if he will honor beis din’s summons.

It should be noted that even if someone gets authorization to go to secular court, he is still not entitled to receive more in the settlement or ruling than he is entitled to according to halacha. Therefore, he should ask a posek how much of the award he is permitted to keep.

WHAT HAPPENED TO MENDEL GREENBERG?

Unfortunately, the supplier did not respond to the summons of the beis din, so the beis din signed a document authorizing Mendel to take his case to civil court. As noted above, going to civil court under these circumstances is permitted once authorized by beis din. Mendel has not made a chillul Hashem since he has demonstrated his desire to have his case adjudicated according to halacha. Here, it is the supplier who refused to be bound by beis din’s authority and has demonstrated his contempt for beis din, halacha and Hashem’s Torah, thereby creating a chillul Hashem.

Mendel chose an attorney he knew from shul to represent his case. When he met with the attorney, he explained all that he had learned about the prohibition against going to arka’os. The attorney himself was aware of Rashi’s statement that it is a tremendous desecration of Hashem’s presence to use civil courts. However, he had assumed that it only referred to courts of idol worshippers.

Now Mendel felt confident that he could convey some of his newly gained knowledge. “My rav told me that it is forbidden to use any secular court, and that a chillul Hashem is involved every time one goes to a court that does not recognize Torah as its law system.”

The lawyer suddenly realized that he had many shaylos of his own.

MAY A LAWYER FILE A LAWSUIT IN CIVIL COURT ON BEHALF OF A JEWISH CLIENT?

This is unfortunately a very common shaylah. A Jewish lawyer representing a Jewish client sues another Jewish client in civil court. May the lawyer file a lawsuit in secular court? Rav Tzvi Pesach Frank ruled that this is absolutely prohibited and that it is a major chillul Hashem to do so.

However, this situation provides the lawyer with a great opportunity to perform a kiddush Hashem. He can explain the advantages of going to beis din to his not-yet-observant client. Firstly, it is far less expensive and usually far more efficient, since most frum communities have batei din where a din torah can be arranged within days.

Of course, an observant Jew should not have to be told extraneous reasons why it is beneficial to go to beis din. For one, the only salient point should be that this is what Hashem wants one to do. Certainly, the reward for following halacha is infinitely greater than anything gained by violating halacha. However, since the non-observant client may not appreciate these considerations, the lawyer may convince the client in a way the client will understand.

MAY ONE TESTIFY IN SECULAR COURT ABOUT A CASE THAT WAS ALREADY DECIDED IN BEIS DIN?

Yes, it is permitted to do. Furthermore, it is permitted and a mitzvah for the dayanim of the beis din themselves to testify in secular court regarding their adjudication. There is a discussion in poskim whether it is a lack of kovod haTorah for the dayanim to testify as witnesses in a secular court. The conclusion is that it is not considered a lack of kovod haTorah as long as the secular court is honest (Shu”t Chasam Sofer, Choshen Mishpat #3).

MAY A LAWYER DEFEND A CLIENT IN CIVIL COURT, OR DOES THIS REQUIRE AUTHORIZATION FROM BEIS DIN?

If a Jew is sued in secular court, it is a mitzvah to defend one to the best of one’s ability, since the plaintiff violated halacha by suing in civil court. There is no need to get authorization from beis din.

IS IT PERMITTED TO SUE A NON-JEW IN CIVIL COURT?

A non-Jew is not required to submit his litigation to beis din. For this reason, a Jew may sue a non-Jew in secular court. Therefore, a lawyer can represent a Jew in his suit against a non-Jew.

MAY LITIGATION BE SUBMITTED TO A NON-JEWISH ARBITRATION BOARD?

There is a dispute among poskim whether one is permitted to submit a case to a non-Jewish arbitration board without authorization from beis din. It seems that Shach (Choshen Mishpat 22:15) and Aruch HaShulchan (22:8) permit this, if the arbitrator bases his decision on common sense and fairness, rather than on a non-Jewish system of law. The Nesivos HaMishpat prohibits using a non-Jewish arbitrator, even in such a circumstance.

Although suing in arka’os is strictly prohibited unless authorized by beis din, Shach and Aruch HaShulchan contend that there is a halachic difference between arbitration that bases its decisions on common sense and a sense of fairness rather than a system of law. In their opinion, arka’os is prohibited because one is substituting a different legal system and procedure for the Torah’s system. However, common sense arbitration is not viewed by anyone as a legal system, but simply as a practical, fair way of resolving conflicts. The Nesivos HaMishpat disagrees, contending that using any system not set up by the Torah constitutes the violation of using arka’os.

In practice, to circumvent this machlokes haposkim, one should summon the defendant to beis din. If he refuses to accept beis din’s authority, the beis din’s permission allows one to submit the matter to an arbitration board as well as a civil court.

WHAT SHOULD A PLAINTIFF DO IF HE LIVES FAR FROM A BEIS DIN?

The mazkir beis din can telephone the defendant explaining that the case must be adjudicated by a beis din. If the defendant accepts this, then the beis din will attempt to facilitate the creation of an ad hoc beis din, similar to a zabla, formed from the most qualified individuals available locally. Under these circumstances, a shaylah should be asked whether one should submit the case to an arbitration board. If the defendant refuses to accept beis din’s authority, beis din will authorize that the case be brought to civil court.

Every profession requires its special halachic expertise. The mortgage broker must be familiar with the laws of ribbis, the psychologist with the laws of loshon hora and the businessman with the laws of ona’ah.. And all of them must remember the rules of avoiding arka’os and taking their litigation to batei din.

The pasuk states, “VaYehi David oseh mishpat utzedakah lichol amo,” “And David performed justice and kindness for all his people” (Shmuel II 8:15). The Gemara (Sanhedrin 6b) comments that this pasuk says something unusual. Justice and kindness are opposites.. If David performed justice, then seemingly he was not performing kindness.

The Gemara answers that a just decree resolving a din Torah performs both justice and kindness; justice for the plaintiff who receives his award, and kindness for the defendant by protecting him against the violation of holding onto stolen property. Thus, by ruling against the defendant, beis din is performing an act of compassion by protecting him from transgression. Careful attention to the rules regarding batei din will stand a person in good stead by guaranteeing that his life is always surrounded by kindness.

Thirty days before Pesach, we begin studying its many and complicated laws. In that “spirit,” I send you this article.

As we all know, a Jew may not own chometz on Pesach, which is included in the Torah’s double prohibition, bal yira’eh and bal yimatzei. Furthermore, the Torah commanded us with a mitzvas aseh, a positive mitzvah, to destroy any chometz left in our possession after midday on Erev Pesach.

According to most poskim, these prohibitions apply both to chometz gamur (pure chometz) and to ta’aroves chometz (chometz mixed into another product). Furthermore, the Torah prohibited benefiting from chometz from midday on Erev Pesach regardless as to whether a Jew or a gentile owns it. Chazal prohibited benefiting from chometz an hour earlier. In addition, Chazal instituted a penalty whereby chometz owned by a Jew during Pesach may never be used. They also required us to search our homes and property the night before Pesach for chometz that we may have forgotten.

Although a Jew may not own chometz on Pesach, there is nothing wrong with his selling his chometz to a gentile before it becomes prohibited. The Mishnah (21a) states explicitly that one may sell chometz to a gentile before Pesach, although this meant that the gentile took the chometz home with him (see Terumas HaDeshen #120). Today when we sell our chometz, we leave it in our homes and we know that the gentile does not intend to use our chometz. Does this sale present us with any halachic issues to resolve?

REASONS TO ARRANGE MECHIRAS CHOMETZ

Before addressing these issues, we should note that there are several valid reasons to arrange a mechiras chometz even if one has no chometz of any value:

1. One is required to rid one’s house and all one’s possessions of chometz. However, some items, such as toasters, mixers, wooden kneading bowls, and flour bins are difficult, if not impossible, to clean. Shulchan Aruch and Rama (442:11) recommend giving wooden kneading bowls and flour bins and the chometz they contain as a gift to a non-Jew before Pesach, with the understanding that the gentile will return them after the holiday.

However, if one does not have such a relationship with a gentile, or if it is inconvenient for the gentile to store these items in his house, one needs to modify the solution so that one does not possess chometz on Pesach. Thus, one can include this chometz and these appliances in the sale of chometz.

One should not sell items that require tevilas keilim (immersing vessels in a mikveh), such as metal or glass appliances, but rent them out instead, since otherwise one will have to immerse them again according to many poskim (Pischei Teshuvah, Yoreh Deah 120:13). Alternatively, one can simply sell the chometz that is attached or inside them, but not the appliances themselves.

2. Someone who owns stocks either directly or through mutual funds and/or retirement programs has another reason to arrange selling his chometz. Although some poskim contend that one may own stocks in a chometz business over Pesach (Rav Moshe Feinstein), most poskim prohibit owning shares on Pesach of a company that owns chometz. They contend that owning part of a corporation that owns chometz is considered as if I own chometz myself (Shu’t Minchas Yitzchok 3:1). Thus, in their opinion, even if someone’s house is completely chometz-free, he should arrange a mechiras chometz to include that which he owns as part of his shares.

3. The Mishnah Berurah mentions an additional reason to sell one’s chometz — to avoid searching for chometz (bedikas chometz) in areas that are difficult to check (433:23) or where one plans to store non-Pesach items (436:32). Many poskim contend that when using the sale to preempt bedikah, the sale should take affect prior to the time of bedikas chometz. This way, when the mitzvah of bedikah takes affect, these areas and their chometz are already under the control and ownership of the gentile.

4. Modern manufacturing creates an additional reason why one should arrange mechiras chometz, since it is difficult to ascertain whether medicines, vitamins, and cosmetic items such as colognes and mouthwashes contain chometz. For this reason, many people perform a standard mechiras chometz even if they destroy all their known chometz and search all the areas they own for chometz.

SOURCES FOR MECHIRAS CHOMETZ

The Mishnah (Pesachim 21a) and Gemara (Pesachim 13a) discuss selling chometz before Pesach in cases that one does not expect to receive the chometz back. In these instances, the sale is fairly easy to arrange: The gentile pays for the chometz (or receives it as a gift) and takes it home with him.

However, in instances where the Jew is expecting to receive the chometz back after Pesach, how does one guarantee that the chometz indeed becomes the property of the non-Jew? Does the Jew’s expectation that he will receive the chometz back undermine the sale? Also, does the gentile really intend to buy the chometz, or does he think that this is all make-believe and that he is not really purchasing it? This would, of course, undermine the purpose of the sale.

The Tosefta provides us with background to these questions:

A Jew is traveling by ship and has with him chometz that he needs to dispose of before Pesach. However, the Jew would like the chometz back after Pesach because there is a dearth of kosher food available. (Apparently, there was no hechsher on that particular ship.) The Jew may sell the chometz to the gentile before Pesach, and then purchase it back afterwards. Alternatively, the Jew may give the chometz to the gentile as a present, provided no conditions are attached. The gentile may then return the present after Pesach (Tosefta Pesachim 2:6). Thus we see that one may sell or give away chometz to a gentile and expect it back without violating any halachos provided the agreement does not require the gentile to give it back.

REMOVING THE CHOMETZ TO THE GENTILE’S PROPERTY

Terumas HaDeshen (#120) also discusses whether you may give your chometz to a gentile as a present that he intends to return to you after Pesach. He permits this, although he stipulates that the gentile must remove the chometz from the Jew’s house (as explained by Bach, Orach Chayim 448).

This condition presents us with a problem in arranging our mechiras chometz. The gentile is willing to cooperate and purchase our chometz, but he does not remove the chometz to his own house. Is there a way to alleviate this problem, or must we forgo selling chometz?

This problem became common when Jews became extensively involved in the ownership of taverns, which was in many places one of the few forms of livelihood open to them. It became common practice to sell the whiskey to a gentile before Pesach even though it remained in the Jew’s tavern (Bach, Orach Chayim Chapter 448). This procedure seems to violate the Terumas HaDeshen’s instructions.

Before we address this question, we must first analyze why the Terumas HaDeshen requires the removal of the chometz from the Jew’s premises.

The poskim present different reasons for this stipulation: In this article, I will present three such approaches. Some authorities suggest that leaving the chometz on the Jew’s property implies that the Jew assumes responsibility for the chometz even though he no longer owns it (Magen Avraham 448:4). The halacha prohibits a Jew from being responsible for a gentile’s chometz during Pesach (Gemara Pesachim 5b; Shulchan Aruch, Orach Chayim 440:1).

Others contend that the sold chometz should be removed from the Jew’s property out of concern that the Jew might eat it by mistake since it was once his (Shu’t Radbaz #240). The halacha is that if the Jew never owned the chometz, he may leave chometz owned by a gentile on his property as long as he places a very noticeable barrier around it (Gemara Pesachim 6a).

The poskim rule that transferring ownership of the area where the chometz is stored to the gentile satisfies both of these concerns (Bach 448). Thus, rather than moving the chometz onto the gentile’s property, we make the property holding the chometz into his property. Therefore, the contract selling the chometz also sells the area where the chometz is located.

If the Jew does not own the area holding the chometz but is renting it, he should rent the area to the non-Jew for Pesach rather than sell it. (To simplify matters, many Rabbonim simply rent areas to begin with, and do not sell the areas to a gentile.) Similarly, in Eretz Yisroel, where the Torah prohibited selling land to a gentile, one should rent his property to a gentile rather than sell it.

There is another approach to explain why the gentile should remove the chometz from the Jew’s property when he buys it. This opinion contends that in order to take possession of the chometz, the gentile must remove it into his property (Chok Yaakov, 448:14). This requires a bit of explanation.

WHAT MAKES A TRANSACTION VALID?

On a daily basis, we buy and sell items from merchants without paying attention when the item changes possession. – That is, at what point does the transaction become valid. Indeed for most of our daily activities, this question is not germane. I go to the supermarket to buy groceries. Does the item become mine when I pick it up to place it into my shopping cart, when I pay for it, or when I pick up the bag to leave the store? The vast majority of times it does not make a difference.

However, sometimes it makes a difference at what point the item becomes mine. If the item accidentally breaks after I paid for it, but before I picked up the bag, is it already mine or not? If the item is indeed already mine, I have no right to ask the merchant to replace it. It makes no difference whether it broke while I was at the store or after I brought it home – in either instance it is incorrect for me to assume that the merchant is responsible to compensate me. Indeed, although the merchant may be willing to replace the item, it is unclear that I may ask him to do so. The merchant may replace the item because he does not want to lose a customer, not because he has any obligation. Thus, this may qualify as coercing someone to give a present that he does not want to, something that is halachically prohibited and morally objectionable.

When selling chometz, it is of paramount importance to determine that the transaction has actually transpired. If the transaction has occurred, then the chometz now belongs to the gentile and there is no violation of bal yira’eh and bal yimatzei on Pesach. However, if the transaction has not taken affect, then the chometz still belongs to the Jew, who will violate bal yira’eh and bal yimatzei.

HOW DOES THE CHOMETZ BECOME PROPERTY OF THE GENTILE?

An item changes ownership when there is an agreement between the parties that is subsequently followed by a maaseh kinyan, an act that transfers ownership. There are many types of maasei kinyan, each appropriate to some transactions and not to others.

Here is an example of an attempt to make a maaseh kinyan that does not work. Reuven wants to purchase a candy, and he decides to draw up a contract for the sale. This written contract does not transfer ownership of the candy to Reuven since it is not a recognized maaseh kinyan for transacting movable items. (Real estate is an example of an item for which a written contract is a maaseh kinyan.) On the other hand, the candy becomes Reuven’s property when he picks it up (assuming that the seller has agreed to the transaction and the two parties have agreed to a price) because this is a maaseh kinyan for movable items.

The poskim dispute what is the maaseh kinyan when purchasing movable items from a gentile, some contending that movable property becomes the buyer’s when he pays for it (Rashi, Bechoros 3b), others contending that it does not become his until he picks it up or takes physical possession in a similar way (Rabbeinu Tam, quoted by Tosafos, Avodah Zarah 71a). If it is a large or heavy item, then it becomes his when he pulls it or causes it to move in some other way, or when it is delivered to his property. Thus the chometz will not become property of the gentile until he takes physical possession.

This presents us with a practical problem. Since the gentile is not bringing the chometz home with him, nor is he picking it up, there is no maaseh kinyan taking place to transfer to him the ownership of the chometz according to Rabbeinu Tam.

Several poskim suggest alternative methods of carrying out the transaction (see Mishnah Berurah 448:17). In some of these methods, one rents to the gentile the places where the chometz is stored.

Since not all poskim accept this method of transacting chometz, we perform several such maasei kinyan in order to guarantee that the chometz indeed becomes the property of the gentile. This concern is one of the reasons why some people refrain from selling chometz gamur and only use the mechirah as a back-up measure. (See Tevuos Shor, Pesachim 21a for another reason why some people refrain from selling chometz gamur.)

We see that conducting a proper mechiras chometz is a complicated procedure, and certainly beyond the halachic skills of the typical layman. Thus, it is inadvisable for a lay person to arrange his own mechiras chometz without a rav’s supervision and advice.

A PRIVATELY ARRANGED SALE

In one of my previous positions, I was the only rav in the vicinity who was arranging mechiras chometz. One member of my shul, an attorney, had not approached me to arrange for the sale of his chometz, which I assumed was an oversight on his part. Wishing to avoid a crisis, I approached him diplomatically to ask whether he had forgotten to take care of mechiras chometz. He replied that he had arranged his own sale with a non-Jewish acquaintance of his, and had indeed drawn up the deed-of-sale himself.

The attorney did not consult with me before he arranged this sale. In all likelihood, the contract he drew up was valid according to civil law, and therefore would be considered a valid mechirah according to some poskim (Masas Binyamin quoted by Magen Avraham 448:4). However, according to many poskim this attempt to sell chometz did not follow the rules that govern mechiras chometz (see Magen Avraham and Machatzis HaShekel). Thus, the attorney had violated bal yira’eh and bal yimatzei according to many opinions.

DIFFERENT TIME ZONES

Shimon is looking forward to his visit with his children in Eretz Yisroel for Pesach. He must make sure to mention this to his rav who is arranging his mechiras chometz. Since the sixth hour of Erev Pesach will arrive for Shimon in Eretz Yisroel many hours before it arrives for his rav in New York, Shimon’s chometz must be sold before the sixth hour of Erev Pesach in Eretz Yisroel, many hours earlier than if he were in America. The rav will make sure that the sale on Shimon’s chometz takes affect earlier than everyone else’s.

CAN I SELL CHOMETZ WITHOUT AUTHORIZATION?

Yosef stored a case of whiskey in my garage and then left for a lengthy vacation. He told me he would be back by Purim. A few days before Pesach, I notice that the whiskey is still in my garage, and I have not heard from Yosef, nor do I know how to reach him. What do I do with his whiskey? Can I arrange mechiras chometz on it without his explicit authorization?

Yehudah’s father, who lives in South Africa, is unfortunately no longer able to care for himself and suffers from dementia. Months ago, Yehudah moved his father into his own home in New York and closed up his father’s house for the time being. Now Yehudah realizes that he has no idea if his father owns any chometz in the house, or where it possibly might be. Can he authorize mechiras chometz on his father’s property without authorization?

The Gemara tells a story that impacts on these shaylos. Someone placed a large sack of chometz with a man named Yochanan the Sofer for safekeeping. On the morning of Erev Pesach, Yochanan went to ask Rebbe whether he should sell the chometz before it becomes prohibited. Rebbe ruled that Yochanan should wait to take action since the owner might still claim his property.

An hour later, Yochanan returned to ask the shaylah again and received the same reply. This happened hourly until the fifth hour, the last time at which he could sell the chometz, at which time Rebbe instructed him to sell the chometz to gentiles in the marketplace (Gemara Pesachim 13a).

There is a question that this Gemara does not address. How could Yochanan sell the chometz, if the owner had not authorized him?

The answer is that although the owner had not authorized Yochanan to sell the chometz, if it will become worthless, he should sell it as a favor for the owner. This is a form of hashavas aveidah, returning a lost object to its owner, since now he will receive some compensation for his chometz and otherwise it will become worthless (Mishnah Berurah 443:11). Similarly, both Yosef and Yehuda would be able to arrange mechiras chometz even though the owner had not authorized them (see Magen Avraham 443:4).

According to Kabbalah, searching for chometz is symbolic of searching within ourselves to locate and remove our own arrogant selves. As we go through the mitzvos of cleaning the house, searching, burning, and selling the chometz, we should also try to focus on the spiritual side of this search and destroy mission.

This article was published originally in the American edition of Yated Neeman.

Although it is a very big mitzvah to lend money, some people are reluctant to do so because they know of loans that were hard to collect. Must I lend someone money if I am not sure it will ever be repaid? What can I do if I loaned money to someone who seemed very honest and sincere, but now that it comes time to repay, he informs me that he is penniless? What may I do and what may I not do to collect my money? How can I guarantee that I get my money back?

Our goal in this article is to answer all these questions.

THE MITZVAH OF LENDING MONEY

The Torah requires us to lend money to a poor Jew who needs it (Rambam, Hilchos Malveh 1:1). This is stated in the pasuk, Im kesef talveh es ami, es he’ani imach, “When you lend money to my people, to the poor person among you” (Shmos 22:24). Chazal explain that the word “im” in this pasuk should not be translated as “If,” which implies that it is optional, but as a commandment, “When you lend…” (Mechilta). The poskim even discuss whether we recite a bracha on this mitzvah just as we recite one on tefillin, mezuzah and other mitzvos (Shu’t HaRashba #18). Although the halacha is that we do not recite a bracha, the mere question shows us the importance of the mitzvah of loaning money.

It is a greater mitzvah to lend someone money, which maintains his self-dignity, than it is to give him tzedakah, which is demeaning (Rambam, Hilchos Malveh 1:1). There is a special bracha from Hashem to people who lend money to the poor.

I should not become upset if a poor person wants to borrow money from me shortly after repaying a previous loan. My attitude should be similar to a storekeeper: “Do I become angry with a repeat customer? Do I feel that he is constantly bothering me?” Similarly, one should not turn people away without a loan, but rather view it as a new opportunity to perform a mitzvah and to receive extra brachos (Ahavas Chesed 1:7).

RICH VERSUS POOR

One should also lend money to wealthy people who need a loan, but this is not as great a mitzvah as lending to the poor.

FAMILY FIRST

Someone with limited available funds who has requests for loans from family members and non-family members, should lend to family members. Similarly, if he must choose whom to lend to, he should lend to a closer family member rather than to a more distant one.

WHAT IF I KNOW THE BORROWER IS A DEADBEAT?

I am not required to lend money if I know that the borrower squanders money and does not repay (Shulchan Aruch, Choshen Mishpat 97:4). It is better not to lend if I know that the borrower will probably not pay back.

THE RESPONSIBILITIES OF THE BORROWER

Someone who borrows money must make sure to pay it back. One may not borrow money that one does not think he will be able to repay. A person who squanders money and therefore does not repay his loans is called a rasha (Rambam Hilchos Malveh 1:3).

The borrower is required to pay his loans on time. If his loan is due and he cannot pay it, he is required to use his household items, if necessary, to pay his debt (Nesivos 86:2=?). Similarly, he may not make significant contributions to tzedakah (Sefer Chassidim #454). He may not purchase a lulav and esrog if he owes money that is due but should borrow one (see Pischei Teshuvah, Choshen Mishpat 97:8). He must use whatever money he has available to pay his debts.

It is strictly forbidden for the borrower to pretend that he does not have money to pay his debts or even to delay paying them if he does have the money, and it is similarly forbidden for him to hide money so that the lender cannot collect. All this is true even if the lender is very wealthy.

COLLECTING BAD DEBTS

Most people who borrow are meticulous to repay their debts and on time. However, it occasionally happens that someone who intended to pay back on time is faced with circumstances that make it difficult for him to repay.

THE PROHIBITION OF BEING A NOSHEH

There is a prohibition in the Torah, Lo sihyeh lo ki’nosheh, “Do not behave to him like a creditor.” Included in this prohibition is that it is forbidden to demand payment from a Jew when you know that he cannot pay (Rambam, Hilchos Malveh 1:2). The lender may not even stand in front of the borrower in a way that might embarrass or intimidate him (Gemara Bava Metzia 75b; Rambam, Hilchos Malveh 1:3).

However, if the lender knows that the borrower has resources that he does not want to sell, such as his house, his car, or his furniture, he may hassle the borrower since the borrower is halachically required to dispose of these properties in order to pay his loan. (See Shulchan Aruch, Choshen Mishpat 97:23 for a list of what items he must sell to pay his debt.) Furthermore, the lender may sue in beis din for the rights to collect these items as payment.

(Technically, it is not the borrower’s responsibility to sell the items and bring the cash to the lender; he may give them to the lender as payment. The lender must then get a beis din or a panel of three experts to evaluate the property he has received. If he needs to hire experts to make the evaluation, the expenses are added to the debt. Of course, the lender and borrower can agree to whatever terms are mutually acceptable without involving expert evaluation, provided that no ribbis [interest] prohibition is created. The vast subject of ribbis is beyond the scope of this article.)

The borrower is often in an unenviable position. He owes money that he would like to pay, but he is overwhelmed with expenses and he simply does not earn enough money to pay all his creditors. He knows he could sell his house or his furniture to pay up, but he really does not want to do that to his family. He should try to appease the lender in whatever way he can – asking him for better terms or for a delay, and he should certainly try to find other sources of income and figure out how to trim his expenses. But he should realize that he is obligated even to sell his household goods to pay off his creditors. Someone who uses his money to purchase items that are not absolutely essential and does not pay back money that is overdue demonstrates a lack of understanding of the Torah’s priorities.

The lender may not enter the borrower’s house to seize collateral or payment. Some poskim contend that the lender may seize property that is not in the borrower’s house or on his person (see Pischei Choshen Vol. 1 pg. 96). There are poskim who contend that if the borrower has the means to pay but isn’t paying, the lender may enter the borrower’s house and take whatever he can (Shu’t Imrei Binah, Dinei Geviyas Chov Chapter 2; Pischei Choshen Vol. 1 pg. 100). One should not rely on this approach without first asking a shaylah.

If the borrower claims that he has absolutely nothing to pay with, the beis din can require him to swear an oath to that effect (Rambam, Hilchos Malveh 2:2).

A lender who feels that the borrower is hiding money or property may not take the law into his own hands, but may file a claim in beis din. If the lender feels that the borrower will not submit to beis din’s authority, he should ask the beis din for authorization to sue in secular courts, but it is forbidden for him to sue in secular court without approval from a beis din.

HOW CAN I GUARANTEE THAT I GET MY MONEY BACK?

It is unpleasant to be owed overdue loans. The lender is entitled to be repaid.

Is there a way that I can lend money and guarantee that I get in back?

First of all, the lender must make sure that he can prove the loan took place. This is actually a halacha forbidding lending out money without witnesses or other proof because of concern that this may cause the borrower to sin by denying that the loan exists (Gemara Bava Metzia 75b).

All of this is only protection against a borrower denying that he borrowed, which is fortunately a rare occurrence. What we want to explore are ways that the lender can fulfill his mitzvah of lending to a needy person, while making sure that the loan does not become permanent.

By the way, one may lend money to a poor person with the understanding that if the borrower defaults, the lender will subtract the sum from his tzedakah-maaser calculation (Pischei Choshen, Volume 1, p. 4).

CO-SIGNERS

The most common method used to guarantee the repayment of a loan is by having someone with reliable finances and reputation co-sign for the loan. In halacha, this person is called an areiv. In common practice, if the borrower defaults, the lender notifies the co-signer that he intends to collect the debt. Usually what happens is that when the lender calls the co-signer, suddenly the borrower shows up at the door with the money.

There are several types of areiv recognized by halacha. The most common type, a standard co-signer, is obligated to pay back the debt, but only after one has attempted to collect from the borrower. If the borrower does not pay because he has no cash, but he has property, the areiv can legitimately claim that he is not responsible to pay. The lender would need to summon the borrower and the areiv to beis din, (probably in separate dinei Torah) in order to begin payment procedures. Most people who lend money prefer to avoid the tediousness this involves.

One can avoid some of this problem by having the co-signer sign as an areiv kablan. This is a stronger type of co-signing, whereby the lender has the right to make the claim against the co-signer without suing the borrower first.

The primary difficulty with this approach is that it might make it difficult for the borrower to receive his loan, since many potential co-signers do not want to commit themselves to be an areiv kablan.

ANOTHER APPROACH

Is there another possibility whereby one can still provide the chesed to the potential borrower and yet guarantee that the money is returned?

Indeed there is. The Chofetz Chayim (Ahavas Chesed 1:8) suggests that if you are concerned that the proposed borrower may default, you can insist on receiving a collateral, a mashkon, to guarantee payment.

Having a loan collateralized is a fairly secure way of guaranteeing that the loan is repaid, but it is not completely hassle-free. There are three drawbacks that might result from using a mashkon to guarantee the repayment of the loan. They are:

1. Responsibility for the mashkon.

2. Evaluation of the mashkon.

3. Converting the mashkon into cash.

1. Responsibility for the mashkon.

When the lender receives the mashkon, he becomes responsible to take care of it. If it is lost or stolen, the value of the collateral will be subtracted from the loan (Shulchan Aruch, Choshen Mishpat 72:2). If the collateral is worth more than the loan, the lender might be required to compensate the borrower for the difference. (See dispute between Shulchan Aruch and Rama ibid.) The creditor is not responsible for the mashkon if it is lost and damaged because of something that halacha considers beyond his responsibility.

2. Evaluation of the mashkon.

When keeping the collateral to collect the debt, the mashkon must be evaluated by a panel of three experts before it can be sold (Shulchan Aruch, Choshen Mishpat 73:15 and Ketzos), or alternatively, sold with the involvement of beis din (Shach), to protect the borrower’s rights. Some creditors find this step tedious.

However, there are methods whereby one can use a mashkon to guarantee a loan and avoid having the mashkon evaluated afterwards.

When arranging the loan, the lender tells the borrower of the following condition: If the loan is not paid when due, the buyer agrees to rely on the lender’s evaluation of its worth (Pischei Choshen, Vol. 1 pg. 145).

An alternative way is for the lender to tell the borrower at the time of the loan: If you do not pay by the day the loan is due, then retroactively this is not a loan but a sale. The collateral becomes mine now for the value of the loan money. This is permitted even if the mashkon is worth far more than the loan without any violation of ribbis (prohibited charging of interest), since retroactively no loan took place but a sale (Shulchan Aruch, Choshen Mishpat 73:17).=

3. Converting the mashkon into cash.

At times, lenders have asked me for a method whereby they can be certain to get their money back, and I have suggested the collateral method. Sometimes I receive the following response: I don’t want to be bothered with selling the mashkon to get my money back. If I think the borrower is a risk, than I would rather not lend to him.

Do we have the same attitude towards other mitzvos we perform? Do we say that we only want to perform mitzvos when they are without complications? Certainly not! However, the yetzer hora convinces us that lending money is a good deed that I need only perform when it is convenient and when I feel like being benevolent, not when it is going to result in a hassle.

SHLEMIEL, THE BORROWER

Nachman once came to me with the following shaylah:

Shlemiel used to borrow money from Nachman regularly, and although Shlemiel always paid back, he often did so long after the due date. Nachman wanted to know what he could do about this situation. He wanted to perform the tremendous mitzvah of lending money, but he wanted his money back in a reasonable time.

I suggested to Nachman that he tell Shlemiel that the loan was available, but only if Shlemiel produced a mashkon and agreed to the above conditions. Since my suggestion, Nachman has been zocheh to fulfill the mitzvah of lending money to Shlemiel many times and not once has a loan been late! Think of how many brachos Nachman has received from Hashem because he is willing to subject himself to the “hassle” of transporting the mashkon to a secure place and being willing to sell it should the need arise!

Why do people view loaning money as an optional “good deed” rather than as a commandment? The Chofetz Chayim (Ahavas Chesed 2:8)= raises this question and mentions several excuses people make to avoid lending money. After listing these reasons, the Chofetz Chayim proceeds to refute each one of them. Simply put, the answer to this question is the old Yiddish expression, Ven Kumt to Gelt, iz an andara velt, “When people deal with their money, they tend to deal with things totally differently.” Truthfully, people find it difficult to part with their money, even temporarily. This is precisely why one receives such immense reward for lending. As Chazal teach us, lifum tzaara agra, “the reward is according to the suffering.”