Some Applications of the Laws of Loshon Hora

This article consists of two original shaylos that I wrote in Hebrew. These teshuvos are in the process of being edited for the next volume of Shu”t Nimla Tal. Both teshuvos are germane to atypical questions I have been asked about the laws of loshon hora. The two questions were:

  1. A therapist requesting guidance concerning what she should or should not say about a couple that she had counseled through a divorce.
  2. Is it loshon hora to tell over something that the person himself is not embarrassed about and does in public? For example, when these is no reason for the other person to know (no to’eles), is it loshon hora to say that someone has extreme political positions that he himself espouses in public? Or, is it loshon hora to say that a woman does not dress according to halacha, when she appears in public this way?

The first responsum is to a question asked by a psychiatric social worker. A couple had become divorced from a marriage in which both parties were unstable. The social worker asking the shaylah, who I happen to know is an excellent therapist, was their marriage therapist. She feels that, although the husband and wife were both at fault for the dissolution of the marriage, the ex-wife is not currently a candidate for future marriage, whereas the ex-husband could handle a future marriage, but only with professional involvement (that is, marital therapy) from the very beginning of the marriage and perhaps even earlier. What may the therapist answer someone who asks her about these individuals for a future marriage? Both members of the former couple have given her authorization to speak freely.

What follows is an approximate rendition of the teshuvah.

Firstly, I want to clarify the ex-husband’s obligations to tell about his marital history to a future prospective mate or to a shadchan.

Until he is dating someone very seriously, he is not obligated to forewarn any woman whom he is dating about his previous difficulties and his need for pre-marital therapy. I advise that he tell a prospective bride after a certain number of dates, say three or four, at a point when the woman can evaluate fairly whether she wants to proceed. However, technically speaking, as long as he notifies her at a time that she can back out without creating a publicly embarrassing situation, he has not violated any halacha. In other words, he is not required to tell her until they are ready to become engaged.

Furthermore, he is under no obligation to tell a shadchan about any shortcomings.

In general, I would not recommend setting him up for a shidduch when it is fairly certain that the other party will back out of the shidduch upon hearing about his shortcomings and the necessity for marriage therapy. However, this is only if the shadchan happens to know about the background; as mentioned above, he is not obligated to tell a shadchan.

If the therapist is asked about his first marriage, she should say that what happened does not concern a different, new marriage. Regarding her assessment that, in a future marriage, the ex-husband should have counseling in advance, it is the ex-husband’s obligation to tell the other party, not the counselor’s. If the counselor is confident that he will follow instructions, both in terms of having therapy early in the relationship and in terms of his notifying the other party that this is necessary, she need not say anything. She is obligated to reveal this information only if she is concerned that the man will not tell.

Regarding the ex-wife, in the situation that happened, she was not emotionally prepared to consider dating for marriage, and therefore there was no issue for the therapist. Had the question been asked, I would have told the therapist that if the young woman is not suitable for marriage, yet is pursuing shidduchin anyway, the therapist is responsible to tell those who call her what she professionally feels. It might be better if she can couch the information in a way that is potentially less damaging for the woman. For example, if she is asked about someone specific, she could say that, from her knowing the woman so intimately through therapy, she does not think that this shidduch should be pursued – that the woman needs a different type of man.

She is not required to reveal any information if she could lose her license or get into legal trouble as a result. Instead, she should say that she cannot discuss the matter for professional reasons or any other answer that is legally acceptable. She should not say something that is not true.

I want to share that the answer to this shaylah may vary significantly depending on the circumstances. There are certainly situations in which I would rule differently. This teshuvah is being discussed here only for general direction, and each particular case must be asked specifically.

The second question:

Is it forbidden to tell someone that a person does not observe certain halachos when the person about whom one is talking is not embarrassed or concerned about others finding out their level of observance? For example, may someone who is from an irreligious background tell someone else how far his family is from observing mitzvos when the person being told has no reason to know? Similarly, is it permitted to mention that a woman dresses immodestly in public when obviously she has no concerns that people know?

There is some interesting background to this question. I know a prominent posek who considers these conversations to be prohibited. I have challenged him on the subject, and believe that they are permitted — subject to certain conditions, such as when revealing the information is not harmful to a third party. An example where this would not be permitted might be a case where revealing the information could be harmful to a grandchild, such as if acceptance to a school or a shidduch might be pre-empted because of the now-public knowledge of a grandparent’s lack of observance. This would be prohibited because the Rambam (Hilchos Dei’os 7:5) states that it is loshon hora to say something that may cause harm to a third party, even when it does not reflect badly on him. (I am not judging whether the school or the potential shidduch policy is correct, or even whether it is halachically acceptable. Indeed, such school policy may be highly reprehensible. I am simply presenting the reality that an innocent party could be harmed because certain information is revealed.)

I have observed prominent poskim following the approach that it is permitted to say this without concerns for the prohibition of loshon hora. Furthermore, I contend that, according to the approach of the rav who rules that this is prohibited and considered loshon hora, someone who is opposed to Chassidim may not say that a person is chassidish; someone opposed to any form of Zionism is prohibited to refer to someone as Zionistic, notwithstanding that the person about whom he is talking is quite proud to be chassidish or Zionistic. The rav who disagrees with me indeed contends that these conversations constitute loshon hora if either the speaker or the listener considers this to be negative. I respectfully disagree and do not consider any of these conversations to be loshon hora.

I want to point out that the dispute here may be getting to a basic definition of what is the nature of the prohibition of loshon hora. It is quite clear from the Rambam’s ruling that the prohibition includes sharing information that may harm someone, even if it is inherently not negative about them. Thus, it is fair to say that the prohibition of loshon hora is the harm it brings upon the person about whom it is said.

In the classic situations of loshon hora, when one shares negative information about a third party that the person being told has no need to know, the loshon hora is the negative feeling about this third party that the listening party now knows. Prior to hearing the loshon hora, he was unaware of this damaging information.

Thus, the dispute between myself and the other rav concerns the following: When the person himself is not at all concerned about people knowing that they have unusual beliefs, or that they believe in something that other people disdain, or that they do not consider certain activities to be within the framework of what they are required to do, can there still be loshon hora to inform someone about this activity or belief. The other rav holds that the person’s being unaware that his approach is mistaken does not change the fact that saying over the information constitutes loshon hora. I believe that I can demonstrate that, should the information not be harmful to a third party, it is not loshon hora when the person himself acts this way in public.

Here is the edited responsum that I sent him:

The Gemara (Arachin 16) states, “Rabbah bar Rav Huna said: Anything stated in the presence of three people is not a violation of loshon hora. This is because your friend has a friend, and his friend has a friend.” Rashi explains the Gemara to mean that, once someone revealed information about himself in the presence of three people, it is not loshon hora to repeat this information to others because the revealer assumes that it will become common knowledge. By revealing it before three people, he has demonstrated that he is not concerned that others will find out. The listeners can assume that they have permission to share this information with others, which, had he not told it in the presence of three people, they would not be able to assume.

From this discussion we see that, once someone declares information about himself in public, he assumes that people will find out, and there is no longer any prohibition of loshon hora. Certainly, it follows that telling what someone does in public cannot involve any loshon hora.

However, a superficial reading of a passage of Gemara (Bava Metzia 58b) might lead one to the opposite conclusion. There the Gemara states that everyone whose misdeeds land him in Gehenna will ultimately be released, with the exception of three categories of sinners. One is someone who embarrasses his fellowman in public; another is someone who calls his fellowman by a derogatory nickname. The Gemara asks why we need two such similar categories – isn’t someone who calls his fellowman by a derogatory nickname simply a subcategory of one who embarrasses his fellowman in public? The Gemara answers that the second category includes a situation in which the person is commonly called in public by the derogatory nickname. Rashi explains that, notwithstanding the fact that he is accustomed to the nickname and is no longer embarrassed by it, someone who intends to embarrass him by calling him by this nickname will not be released from Gehenna.

From this we see that, if one intends to embarrass someone, it is prohibited to say something even when it is well known. However, the Gemara passage implies that it is prohibited only when you speak in his presence and your intention is to embarrass him. In the instance of a woman who does not dress according to halachic standard, or someone who holds unconventional positions, when the person is not present, we have no evidence that informing a third party is prohibited. Furthermore, the discussion in Bava Metzia is not concerned about loshon hora, but of embarrassing someone. Therefore, calling someone by a derogatory nickname is forbidden because the person may be embarrassed. However, when someone is proud of what he is doing, even when the action is wrong according to halacha, there is no violation of loshon hora and presumably no violation of embarrassing them. This is even more so true when it is unclear whether the action is wrong.

Thus, we can reach the following conclusion: If one is trying to embarrass a woman who dresses improperly, it is forbidden to reprove her in public for her inappropriate attire. However, there is no prohibition in mentioning to a third party, when the woman is not present, that she dresses inappropriately, provided one does not exaggerate what she does wrong. Exaggerating would certainly be prohibited because one is spreading untruth about what she does.

Can we demonstrate from the story of Miriam that it is prohibited to say something truthful about a third party, regardless of their concern? After all, Miriam was punished for saying loshon hora about Moshe despite the fact that he was not concerned. She thought she was doing the correct thing, since she was convinced that Moshe was in error. The answer appears to be that what she did was loshon hora precisely because she was wrong. In other words, she thought she was planning an appropriate admonition of Moshe for his wrong activity, but since his actions were correct and she was wrong, this constituted loshon hora, even though her violation was beshogeig, inadvertent.

Thus, when the information qualifies as loshon hora, the prohibition is violated even if one did not realize that it is loshon hora. However, if the party himself acts or speaks in a way that the derogatory information is public knowledge, it is permitted to say it, provided one is not intending to embarrass anyone.

The rav who disputed with me feels that, if indeed the information is negative, even if the person himself does not consider it to be so, this may constitute loshon hora.

We are both in agreement that if the speaker said negative things about himself that might harm relatives or others, it is prohibited to repeat these negative things, as per the above-quoted Rambam.

 

 

Eat Kosher!

In chutz la’aretz, this week parshas Shemini is read, which includes much of the Torah’s discussion regarding which species are kosher. Although in Eretz Yisroel this reading was last week, none of the material in this article is outdated.

Eat Kosher!

Question #1: What’s gnu?

Zoe Oligist asked me: “If the wildebeest chews its cud and has split hooves, which of the ten kosher animals is it?”

Question #2: Food for thought

“Am I required to eat each of the kosher species?”

Question #3:

“Is a tzvi a deer or an antelope? For that matter, what is the difference between a deer and an antelope?”

Question #4:

“Must I check a fish for scales each time I purchase one?”

Introduction:

The Torah discusses which species are kosher and which are not in two places, in parshas Shemini and in parshas Re’eih. In parshas Shemini, the Torah introduces the topic as follows: “Hashem spoke to Moshe and to Aharon, saying to them, ‘Speak to the children of Israel, saying, these are the living things from which you may eat. From the animals that are upon the ground: whichever has a split hoof that is separated completely and ruminates among the animals, those you may eat'” (Vayikra 11:1-3). The Torah then explains that species that possess only one of the two kosher signs are not to be eaten, such as the camel, which chews its cud and has a partially split hoof, but is not kosher, since its hoof is not fully separated (Vayikra 11:4). The Torah then provides the rules governing which sea creatures may be eaten. Following this, it lists which birds we may not eat, and then provides the rules regarding which grasshoppers are kosher and which are not.

Parshas Re’eih includes a review of most of the basic laws of kashrus, including a reiteration of which species of animal, fish and bird are kosher for the Jewish palate. The instructions regarding kosher grasshoppers do not appear in parshas Re’eih, but only in parshas Shemini. In parshas Re’eih, the Torah begins its discussion by listing the ten types of beheimah that are kosher, without mention of their kosher signs until later. To quote the Chumash (Devorim 14:4-5): Zos habeheimah asher tocheilu: shor, seh kesavim, veseh izim, ayil, utzvi, veyachmur, ve’ako, vedishon, use’o, vazamer, “these are the animals that you may eat.” The ten that are listed are the only species of mammal that ruminate and have totally split hooves, indicating that they are kosher.

What are these species? We can readily identify some of them: shor is cattle, kesavim are sheep, and izim are goats. However, from that point, the going gets more confusing, since it is unclear whether ayil is an antelope and tzvi is a deer, or vice versa (see Tosafos, Chullin 59b s.v. Veharei Tzvi). (The difference between antelope and deer is that antelope have permanent horns, whereas deer have antlers, which shed and regrow every year.)

What’s gnu?

At this point, let us address one of our original questions. “Zoe Oligist asked me: ‘If the wildebeest chews its cud and has split hooves, which of the ten kosher animals is it?’”

Although I have invented the name of the questioner, this exact query is, indeed, genuine, and was asked of Rav Yehoseif  Schwartz, a unique gadol and poseik of the early nineteenth century (Responsa Rosh Hashoni #18). Most modern Torah authorities would refrain from providing positive identification of the species mentioned in the Torah, other than the five mentioned above. (See, for example, the translation of Rav Hirsch to our verse.) However, Rav Schwartz concluded that yachmur is the wildebeest, also called a gnu, a variety of large antelope native to central and southern Africa. (Whether you refer to this antelope as wildebeest or gnu depends on whether you prefer to use a name whose linguistic origin is Afrikaans, a language that began as a dialect of seventeenth-century Dutch, or Bantu, a family of languages of the native peoples of south and central Africa. From what I understand, the gnu does not mind being called a wildebeest.) Rav Schwartz based his determination on the following: He writes that he had positively identified the other nine species mentioned by the Torah, and he also knew that the wildebeest, being a ruminant with split hooves, is kosher and not one of those nine. Since he did not know what a yachmur is, and he knew that the wildebeest is kosher, simple deductive logic proved that the wildebeest and the yachmur must be the same creature. (By the way, he cites there, authoritatively, Rav Saadiyah Gaon’s identifying the zamer as the giraffe. Although I have read articles claiming otherwise, giraffes chew their cud and have fully split hooves; thus, they are kosher.)

Personally, I have difficulty with Rabbi Schwartz’s method of identifying the yachmur. According to my primitive research, there are 91 species of antelope known to man, all of which are ruminants and have split hooves. There are also many species of deer, all of which are split-hooved ruminants, and a wide variety of species of sheep and goats. In addition, the entire bovine family, including Western domesticated cattle, Indian zebu cattle, musk oxen, Asian water buffalo, African cape buffalo, European bison (also called the wisent), American bison (colloquially, but somewhat inaccurately, referred to as buffalo), and Himalayan yaks are all ruminants and have split hooves. Clearly, since we have enumerated here many, many times the ten species listed by the Torah as kosher, the Torah must be providing us with categories of kosher animals, not specific species. Or, in more accurate words, the Torah’s categorization of species probably varies considerably from that of the zoologist. Therefore, those venturing on an African safari may consider the gnu to be kosher, without necessarily knowing under which of the seven chayos it is classed.

Food for thought

Let us return to the second of our opening questions: “Am I required to eat each of the kosher species?”

To analyze this question, we need two introductions. The first is to try to understand how to translate the Torah’s word tocheilu. This word can be translated into English as You should eat or as You are to eat or as You may eat. If we translate it You should eat or You are to eat, does this mean that there is a requirement to eat each of the kosher species? The midrash halacha on this pasuk, the Sifra, provides one way of understanding these words. There it states, “This teaches that Moshe held each living creature and showed it to the Bnei Yisroel, instructing them: ‘This tocheilu, and this you may not eat’ (Vayikra 11:2, #62 in the Malbim’s numbering).” I deliberately did not translate the word tocheilu here, so as not to bias our understanding of a later passage of Sifra, which I will mention shortly.

The Ramban, in his commentary to the Sefer Hamitzvos of the Rambam, writes that it cannot mean that the Torah requires that we eat these species. And he is not alone. All halachic authorities dating back more than a thousand years assume that the Torah is not commanding that we eat kosher species. The Ramban notes that it is a machlokes between the Behag, who does not count these four mitzvos, and the Rambam, who does. The Ramban explains that the Rambam understood that one who violates the lo sa’aseh by eating a non-kosher species also violates the aseih. On the other hand, the Behag does not count them because there is no positive mitzvah. The Ramban explains that just as a repeated mitzvah does not get counted twice, repeating it as an aseih does not add to the mitzvah count.

Is it a mitzvah?

There is a dispute among the rishonim whether the mitzvah of tocheilu is counted among the 613 mitzvos. The Rambam, both in his Sefer Hamitzvos (positive mitzvos 149), his work on the listing of the 613 mitzvos, and in the Mishneh Torah, counts tocheilu as one of the mitzvos (Hilchos Ma’achalos Asuros, introduction and 1:1). He counts not only this mitzvah, but also three other mitzvos aseih, one to identify kosher fish, another to identify kosher grasshoppers and a third to identify kosher birds (Rambam positive mitzvos 150-152). According to the Sefer Hachinuch, three of these mitzvos are first mentioned in parshas Shemini and therefore counted there, and the last, identifying kosher birds, is mentioned only in parshas Re’eih.

Actually, the Rambam has strong sources in Chazal for his position, since both the Sifra  (Vayikra 11:4, #69 in the Malbim’s numbering) and the Sifrei (Devorim 14:4, #96 in the Malbim’s numbering) state the following: “‘Osah tocheilu, this you may eat, but you may not eat non-kosher animals.’ This teaches me that this is prohibited because of a mitzvas aseih; how do I know that there is a lo sa’aseh? The Torah teaches, ‘The camel, the rabbit, the hyrax, and the pig – from their flesh you shall not eat.’ This includes only these four species; how do I know that I may not eat other non-kosher species? I derive it logically: If there is a lo sa’aseh prohibiting the consumption of the varieties that possess one indication that they are kosher, certainly those that do not possess either indication… are definitely not kosher.” In conclusion, all non-kosher varieties are prohibited directly from the Torah with a mitzvas aseih, and a lo sa’aseh, by virtue of a kal vachomer.

Notwithstanding the above quotation from the Sifra, most other early authorities who count the 613 mitzvos, including the Baal Halachos Gedolos, Rav Saadiya Gaon, and the Ramban, omit these four mitzvos, apparently because they feel that their inclusion as a positive mitzvah does not add any halachic factors.

In order to understand this dispute better, we need to explain some background to the counting of the 613 mitzvos.

The Sefer Hamitzvos includes the Rambam’s listing and explanation of the 613 mitzvos, but also includes an extensive explanation regarding the rules that govern what is included in their listing. The Rambam explains in his introduction to the Sefer Hamitzvos, that he was planning to write a halachic work that would include all the laws of the entire Torah, but realized that before he began writing this sefer halacha, he first needed to explain extensively what is included in the 613 mitzvos and why. (Indeed, the Rambam did write this work, which is the Mishneh Torah.)

Baal Halachos Gedolos

The Rambam mentions that the accepted counting of the 613 mitzvos, prior to his own Sefer Hamitzvos, was that of the Baal Halachos Gedolos, a halachic work authored by Rav Shimon Kaira in the era of the Geonim. (Although the Behag is often cited as the work of an earlier gaon, Rav Yehudai Gaon, since the Halachos Gedolos quotes Rav Yehudai Gaon many times, he obviously cannot be the author.) Subsequent to the Behag’s list, many other authors followed this list, while others amended it in minor ways. In addition, it spawned many liturgical poems. However, it appears that until the Rambam penned his Sefer Hamitzvos, no one disputed the basic approach that the Behag used to determine what counts as a mitzvah.

Why the Sefer Hamitzvos?

The Rambam writes that he realized that if he listed the mitzvos before each section of his Mishneh Torah according to his own list, he would be disputing an accepted approach to Judaism. Thus, he was in a quandary. On the one hand, his Mishneh Torah would be incomplete without listing the mitzvos involved in each of its sections; on the other hand, people might reject his list of mitzvos, unless he explained its rules and why he disputed what had been, heretofore, accepted. For this reason, the Rambam explains, he wrote the entire Sefer Hamitzvos as an introduction to his Mishneh Torah, in order to explain the rules that determine what counts as a mitzvah and what does not.

What difference does it make whether something is a mitzvah or not?

Although many authors discuss what to include in the count of the 613 mitzvos, it is interesting to note that few of them discuss why it is important to know what are the 613 mitzvos.

On the other hand, the Rambam contends that it is essential to a proper perception of Torah to understand the relationship between the halachos of the Torah and the 613 mitzvos. As part of this understanding, the Rambam describes that he decided to structure the Mishneh Torah according to related mitzvah topics, rather than follow the order of the Mishnah. The Rambam then mentions that he decided to precede each section of the Mishneh Torah with an introduction, in which he would list the mitzvos included in that section.

But does it count?

How does this debate affect kashrus? What we have quoted, until now, appears to be a rather theoretical discussion. How does this affect what I eat? To explain this, we need to examine one of the points that the Rambam makes in his Sefer Hamitzvos.

We will continue this article in two weeks.

 

 

 

May I Enter the Room that I Sold to the Non-Jew

The style of this article is an experiment; it is somewhat different from what I usually send out, and I am looking for feedback from our readers. The article consists of an actual teshuvah that I wrote many years ago and is published in Shu”t Nimla Tal (Orach Chayim, #167), which is available for download on the website RabbiKaganoff.com. (The teshuvah begins on page 214 of the sefer.)

To create this article, the original Hebrew teshuvah was rendered by Google translate, and then edited. I am looking for feedback from our readership whether you enjoyed this style of article, and whether you would like to see it in the future on an occasional or even a regular basis.

The responsum was an answer to an actual question that I was asked:

“A room is rented to a non-Jew because it contains the chometz that was sold to him. Is it permissible to enter the room in order to remove something that was not included in the sale?”

The responsum, which was addressed to a Torah scholar, reads as follows:

The Magen Avraham (472:2) asked a question on the position of the Maharil, who permitted someone to use, in honor of the Seder, a very valuable item, perhaps made of gold or containing precious stones, that had been given by a gentile as collateral on a loan, what I will henceforth call a pawned item. The Magen Avraham questioned how the Maharil permitted the Jew to use the pawned item, when the halacha is that one may not use someone else’s property without permission. Since the Jew is holding the pawned item only to make sure that he can recoup the value of the loan should there be a default, the Magen Avraham assumes that the Jew is not permitted to use the pawned item without the explicit permission of the owner, until the loan is due. At that point, he is permitted to sell it or keep it.

The Magen Avraham answers that we can assume that the non-Jewish owner does not mind if one uses his pawned item only once, and, therefore, one may display the valuable item at the Seder as part of one’s celebration of this very special night.

Let us examine a related passage of Gemara. The end of tractate Avodah Zarah (75b) relates that Rav Ashi immersed a vessel he had received as collateral from a non-Jew, in fulfillment of the mitzvah of tevilas keilim, before using them for food. The Gemara inquires why Rav Ashi immersed the item when there is no  obligation unless the item is owned by a Jew. Was it because Rav Ashi contended that receiving the item as collateral is considered halachically as if the Jew already owns it? In other words, notwithstanding the borrower’s option to redeem it, the lender may assume that since most pawned items are not redeemed, he may already treat it as his property. An alternative position mentioned by the Gemara is that the lender may not assume that an item received as collateral can be treated as his. However, in Rav Ashi’s specific case, there were specific indications from the borrower’s actions that he did not intend to redeem the pawned item, and therefore Rav Ashi assumed that he had already acquired it.

Regarding the conundrum presented by the Gemara, the Shulchan Aruch (Yoreh Deah 120:9) assumes that the issue remained unresolved. He therefore concludes that if the Jewish lender notices any indication that the non-Jewish borrower does not intend to redeem the security, the lender should recite a brocha prior to immersing it. However, if there is no such indication, he should immerse the vessel before using it, but without reciting a brocha, since the borrower may return to redeem the security, in which case it was property of a gentile at the time of the immersion, and there was no requirement to immerse it. Halachically, only an item owned by a Jew requires immersion before use, not an item used by a Jew that is owned by a non-Jew. When there is uncertainty whether one is fulfilling a mitzvah with a certain action, the usual procedure is to perform the mitzvah but without reciting a brocha because of the principle of safek brochos lehakeil.

Returning to the ruling of the Shulchan Aruch, since it is uncertain whether the item requires immersing before use, one should immerse it, but without reciting a brocha.

At this point, this passage of Talmud and the ruling of the Shulchan Aruch present us with a question on the position of the above-quoted Magen Avraham. The Magen Avraham asked on the Maharil’s position how he can permit the lender to display at his Seder the valuable pawned items that he is holding, since one may not use an item without permission, and the lender has no explicit permission to use the collateralized valuables. The Gemara in Avodah Zarah that we just quoted is certainly assuming that Rav Ashi was permitted to use the collateralized item – the only question is whether he should assume that the item is already his property, and therefore he should recite a brocha when he immerses it, or whether he should not recite a brocha, because the property still belongs to the gentile. But no one questions Rav Ashi’s right to use the item.

The Taz (in Yoreh Deah) indeed questions how Rav Ashi could use the security and explains that halacha does not forbid using an item of a non-Jew that is already in your house. In other words, the prohibition not to use an item without permission does not apply to a non-Jew’s property that he is storing in a Jew’s house, whether as collateral or for any other reason.

Based on this above discussion, several halachic authorities (Chok Yaakov; Machatzis Hashekel) dispute the Magen Avraham’s assumption that one may not use collateral owned by a non-Jew without permission. According to these authorities, it would seem that it is permitted to enter the room that you have rented out to the non-Jew in order to use the room for your own purposes.

However, it might be prohibited to enter the room for other reasons, germane to the sale of the chometz. When the Terumas Hadeshen discusses how one should sell one’s chometz to a non-Jew, he states expressly that the chometz should be removed from the house of the Jewish seller. Many authorities question this requirement, noting that the Gemara states that it is permitted to have a non-Jew’s chometz  in one’s house on Pesach, provided that a barrier the height of ten tefachim (about forty inches) is constructed around the chometz, presumably to guarantee that no one mistakenly eat it. Why, then, does the Terumas Hadeshen insist that the chometz sold to the non-Jew be removed from the Jew’s residence?

Most later authorities explain that one is permitted to leave the non-Jew’s chometz in one’s house, provided that he has taken adequate care that no one mistakenly eat it. The reason that the Terumas Hadeshen insisted on removing the chometz from the Jew’s property was because of the technical laws that must be followed in order to change ownership of the chometz  to the non-Jew. However, should one accomplish changing ownership to the gentile without moving it out of your house, you are not required to do so.

One of the standard methods we use of guaranteeing that the sale of our chometz to the gentile is fully valid is to rent to the gentile for the entire holiday the area where the chometz is stored. However, even when one rented to the gentile the area where the chometz is stored, this rental should not preclude the Jew from entering this area for a short period of time. It therefore appears that, should the need develop, it is permitted to enter the room that was rented to the non-Jew.

Wishing everyone a chag kosher vesomayach!!

 

 

Matzoh Shoppers Guide Part II

The Four Questions of Matzoh Purchasing

The First Question Is: On all other nights of the year, we do not check our matzoh and bread, although we sometimes check our flour before we bake with it; on this night of Pesach, we check our matzoh before eating it. For what are we checking?

The Second Question Is: On all other nights of the year, we eat any kind of matzoh; on this night of Pesach, some people eat only hand matzoh, others eat only machine-made matzoh, and still others eat hand matzoh for the bracha and machine matzoh afterwards. What is the basis for these different practices?

The Third Question Is: On all other nights of the year, we prepare our food leisurely; on this night of Pesach, we eat matzoh advertised as special “18-minute matzoh.” But I thought that matzoh dough becomes chometz after 18 minutes, so all matzoh left around longer than 18 minutes before baking should be chometz. So what is special about 18-minute matzoh?

The Fourth Question Is: On all other nights of the year, no guests arrive early in order to “lift up” their food before Yom Tov, but on this night of Pesach, some guests arrive before Yom Tov in order to “lift up” the matzos they intend eating at the Seder. Why do only some of my guests ask me if they can do this?

In last week’s post, we answered the first of these questions. This week we continue…

Let us now answer the second question:

“On this night of Pesach, some people eat only hand matzoh, others eat only machine-made matzoh, and still others eat hand matzoh for the bracha and machine matzoh afterwards. What is the basis for these different practices?”

Although most people today accept the use of machine matzoh for Pesach, it is instructional to understand a major dispute that existed among nineteenth-century poskim over its use. Dozens of renowned poskim and rabbonim became involved in this dispute. Unfortunately, the machlokes over the use of machine matzos became as heated as the temperature of the matzoh ovens, with each side issuing tirades.

Those who opposed the use of machine-made matzoh on Pesach did so because of the following major concerns:

  1. The economic factor: There was concern that introduction of machine matzoh would seriously affect the livelihood of many Jewish poor who were employed kneading and baking matzos.
  2. The chometz factor: There were major concerns about whether the factories’ matzoh met all the above-mentioned halachic requirements. Among the concerns raised were: Is all dough cleaned off the machinery, or does dough stick to the equipment and remain in place for more than eighteen minutes? Does the machinery work the dough constantly, or does it sit after it has begun to be worked?

Apparently, this was a big concern in the early matzoh bakeries. In a teshuvah dated Monday, Erev Rosh Chodesh Nisan 5618 (1858), the Divrei Chayim (Shu’t 1:23) refers to machine matzoh as chometz gamur (unquestionably chometz), based on the way it was produced.

  1. The lishmah factor: Another issue involved in the manufacture of machine matzos is whether it is considered lishmah? Is the intent of the person operating an electrically-powered machine considered as making matzos lishmah? The same issue affects many other halachic questions, such as the spinning of tzitzis threads by machine, the manufacture of leather for tefillin straps and batim, and the making of hide into parchment. Some poskim contend that pushing the button to start a machine is not sufficient to make it lishmah, since the pushing of the button produces only the very first action, and the rest happens on its own and, therefore, is not considered being made lishmah (Shu’t Divrei Chayim 1:23). There is much discussion and dispute about this issue in the poskim (see for example, Shu’t Chesed L’Avraham 2:Orach Chayim:3; Shu’t Maharsham 2:16; Shu’t Achiezer 3:69 at end; Sdei Chemed Vol. 7 pgs. 396-398; Chazon Ish, Orach Chayim 6:10 s.v. vinireh d’ein tzorech; Shu’t Har Tzvi, Orach Chayim #10; Mikra’ei Kodesh, Pesach II pgs. 11-17). It is primarily for this reason that many people today who use machine-made matzoh on Pesach still use hand-made matzoh for the Seder.

It is also curious to note that the initial matzoh machines over which these poskim debated were nothing more than hand-turned rollers that quickly made a large quantity of thin dough into circles, the way a cookie cutter operates. They enabled a fantastic increase in the output of one small factory.

Thirty years after the original dispute, the issue was still heated, as evidenced by the following teshuvah of Rav Yehoshua Trunk of Kutno, widely acknowledged in the latter half of the nineteenth century as the posek hador of Poland.

“On the subject of the new idea brought to knead matzos by machine, G-d forbid that one should follow this practice. Over thirty years ago, all the Gedolei Yisroel in our country prohibited it. At their head were the Av Beis Din of Tshechnov; Rav Yitzchok Meir of Gur (The Chiddushei Rim, the first Gerer Rebbe); and Rav Meir, the Rav of Kalish; all of whom signed the declaration prohibiting their use. Not a single individual was lenient about this matter. I therefore say to our brethren, ‘Do not separate yourselves from your brethren, since all the gedolim in our country prohibited this machine and virtually all the people accepted this prohibition” (Shu’t Yeshu’os Molko, Orach Chayim #43). Thus, it appears that in central Poland, where these gedolim lived, hand matzos were used almost exclusively.

Similarly, in a teshuvah penned in the year 5635 (1895), the Avnei Nezer (Orach Chayim #372), renowned posek and gadol hador a generation later, echoed this sentiment with emphasis. He writes that although he had never seen a matzoh factory, he prohibited eating this matzoh based on the fact that the previous generation’s poskim had prohibited it, quoting Rav Yehoshua of Kutno.

At about the same time that the Avnei Nezer wrote his above-quoted responsum, the Maharsham (Shu’t 2:16) was asked by the Rav of St. Louis, Missouri, Rav Zecharyah Yosef Rosenfeld, about a matzoh machine that took a half hour to prepare the matzoh. Rav Rosenfeld was highly concerned about several problems regarding this machine. The Maharsham ruled that if all the equipment is kept cool and all the other requirements are met, then the matzoh may be used.

In the contemporary world, one can plan and construct a factory for baking matzos in such a way that a minimal amount of dough adheres to equipment, and mashgichim can supervise the swift removal of any dough that sticks to the machinery. Someone who purchases machine-made matzoh is relying on the supervising agency or rabbi to guarantee that the operation runs properly.

Many rabbonim and communities contend that it is preferable to use machine matzos, because one can control the product better – thus, in German communities and in “the old yishuv” in Eretz Yisroel, machine matzos were preferred. Rav Shlomoh Zalman Auerbach,  zt”l, and his brother-in-law, Rav Sholom Shvadron, zt”l, ate only machine matzos on Pesach, as did Rav Yosef Breuer, zt”l, and I have been told of many other gedolim who ate only machine matzos on Pesach.

Among the reasons quoted for favoring machine matzos are:

1) Kneading by hand takes considerably more time before the matzoh is ready for baking. In addition, the dough is likely to warm up considerably by the hands of the kneader, which may lead to it becoming chometz.

2) Hand matzos are of uneven thickness, so that some parts of the matzoh are burnt while other parts may still be incompletely baked; thus, there could be a problem of a matzoh being removed from the oven before it is fully baked.

3) Machine matzos are thinner and thus less susceptible to leavening.

Although the following may be unappetizing, I have witnessed someone leaning over the table, busily kneading the dough for his matzoh, while beads of perspiration are falling into the dough. Aside from the lack of sanitary conditions, there are also kashrus concerns about matzoh produced this way.

On the other hand, many Chassidic circles eat only hand matzos on Pesach, following the long list of Chassidic poskim who strongly opposed machine matzos. In between these two approaches are those who feel that the kashrus of machine matzos is fine or even preferred, but who are concerned about whether matzoh produced by a machine is considered lishmah. To avoid any halachic problem, they use hand matzos at the Seder, but eat machine matzoh the rest of Yom Tov.

At this point, my son, I can answer your Third Question:

On all other nights of the year, we prepare our food leisurely; on this night of Pesach, we eat matzoh advertised as special “18-minute matzoh.” But I thought that matzoh dough becomes chometz after 18 minutes, so all matzoh left around longer than 18 minutes before baking should be chometz. So what is special about 18-minute matzoh?

Ideally, one should stop every matzoh machine every eighteen minutes to guarantee that the equipment is completely clean. However, factory owners feel that this is a non-profitable way to operate a matzoh factory. Thus, the equipment usually runs constantly with the hope that no dough sticks to it and remains from one batch to the next. To avoid this problem, many people who use machine matzoh insist on using only matzoh produced after the equipment was stopped for a thorough cleaning and examination. This matzoh is usually called “eighteen-minute matzoh,” that is, the machine has not been running for eighteen minutes from the last time that it was thoroughly cleaned.

Different hechsherim have different standards – thus, whether some dough remains on the equipment longer than eighteen minutes will depend on how tight the hechsher’s standards are. It is fair to assume that if the factory is not stopped for cleaning every eighteen minutes, some dough remains on the equipment for more than eighteen minutes from one production to the next. However, even if dough was abandoned on the equipment for over 18 minutes, it is batail, nullified, in the final product.

To quote a friend’s recent observation: “I went to a major matzoh bakery a few years ago where they had two runs simultaneously. One was mehadrin, where they stopped the equipment every 16 minutes for cleaning. The other production was constant, and we witnessed piles of dough building up along the sides of the conveyor belt that eventually mixed into the production dough.”

The Fourth Question was basically asking:

“A guest once asked me if he could pick up the matzos on Erev Pesach that he was planning on eating at the Seder. Why did he request this, and why have I never heard of this before?”

The halacha is that to fulfill the mitzvah of eating matzoh, the matzoh must be your property. Thus, one cannot fulfill the mitzvah with stolen matzoh. Some have the practice of being certain that they have paid for their matzoh before Pesach to demonstrate that the matzoh is definitely theirs (based on Mishnah Berurah 454:15).

There is an interesting dispute between poskim as to whether a guest at someone else’s Seder fulfills the mitzvah with matzoh that belongs to the host. Sfas Emes (commentary to Sukkah 35a s.v. beGemara asya) contends that one can fulfill the mitzvah of matzoh only with matzoh that one owns to the extent that one would be able to sell it. Therefore, a host must give to each of his guests their matzoh as a present before they eat or they have not fulfilled the mitzvah. However, the universally accepted practice is to follow the opinion of the Mishnah Berurah (454:15), who states that one fulfills the mitzvah with borrowed matzoh.

May we all be zocheh to eat our matzoh this year together with the Korban Pesach in Yerushalayim.

 

The Matzoh Shoppers Guide

The Four Questions of Matzoh Purchasing

The First Question Is: On all other nights of the year we do not check our matzoh and bread, although we sometimes check our flour before we bake with it; on this night of Pesach we check our matzoh before eating it. For what are we checking?

The Second Question Is: On all other nights of the year we eat any kind of matzoh; on this night of Pesach, some people eat only hand matzoh, others eat only machine-made matzoh, and still others eat hand matzoh for the bracha and machine matzoh afterwards. What is the basis for these different practices?

The Third Question Is: On all other nights of the year we prepare our food in a leisurely manner; on this night of Pesach we eat matzoh advertised as special “18-minute matzoh.” But I thought that matzoh dough becomes chometz after 18 minutes. So what is special about 18-minute matzoh?

The Fourth Question Is: On all other nights of the year, no guests arrive early in order to “lift up” their food before Yom Tov, but on this night of Pesach some guests arrive before Yom Tov in order to “lift up” the matzos they intend on eating at the Seder. Why do only some of my guests ask me if they can do this?

“Father, what is the answer to my four questions?”

“Son, before I answer your excellent questions, hearken to how matzoh is made.”

WE WERE ONCE SLAVES IN EGYPT

Although matzoh is the simplest of products, containing simply flour and water, much detail is involved at every step to process it in a halachically correct way. In addition, halacha requires that the matzoh eaten to fulfill the mitzvah on Seder night must be produced with the intention that it is specially supervised not to become chometz for the purpose of fulfilling the mitzvah. Thus, even if we know by remote-control camera that matzoh was produced 100% kosher for Pesach, but a well-trained team of chimpanzees manufactured it, one cannot use this matzoh to fulfill the mitzvah on Seder night, because it was not produced lishmah. Only adult Jews can produce matzoh lishmah (Shulchan Aruch Orach Chayim 460:1). Therefore, before beginning work each day in a matzoh bakery the workers must say: Kol mah she-ani oseh hayom, hareini oseh lesheim matzos mitzvah, “Everything that I am doing today, I am doing for the sake of producing matzos that will be used for the mitzvah.”

Although the Gemara (Pesachim 40a) discusses preparing matzoh lishmah, it is unclear how early in its production this must be done. We need not plant the wheat for the sake of the mitzvah, since nothing at this stage can make the product chometz-dik. Until the grain can become chometz, there is no need to guard it lishmah from becoming chometz.

The early poskim have three opinions concerning the stage when one must prepare matzoh lisheim matzos mitzvah:

(1) From the time of harvesting, which is usually the earliest time the grain can become chometz.

(2) From the time of grinding, at which time it is more probable that the flour could become chometz. In earlier times, most flour mills were located alongside rivers and used the flow of the river as their power source. Thus, there is great concern that the flour could become wet and begin to leaven.

(3) From the time of kneading, when one must certainly be concerned about the possibility of chimutz (fermentation).

Shulchan Aruch (Orach Chayim 453:4) concludes that it is preferable to guard the wheat lishmah from the time it is harvested, but that it is satisfactory to use wheat that is supervised only from the time it is ground. Other poskim require lishmah from the time of the harvest (Pri Chodosh). Nowadays, shmurah matzoh generally refers to matzoh that was supervised against chimutz from the harvest, and kosher-for-Pesach non-shmurah matzoh is supervised from the time of the grinding.

HARVESTING CONCERNS

Fully-ripe grain can become chometz even while still connected to the ground (Piskei Tosafos, Menachos 208). Thus, in order to guarantee that the grain harvested for matzoh does not become chometz, it is harvested early, before it is fully ripe (Chayei Odom 128:2; Mishnah Berurah 453:22; Bi’ur Halacha to 453:4 s.v. Tov) and when it is dry. Before cutting the wheat, someone checks to see that it has not yet sprouted. Furthermore, we cut the wheat in the afternoon of a dry day to allow the night’s dew to evaporate in the morning. A combine used to harvest shmurah wheat must be clean and dry.

The poskim dispute whether a non-Jew may operate the combine when it harvests the wheat, or whether a Jew must operate it (Sefer Matzos Mitzvah pg. 26). Those who contend that Jew must operate it is because they hold that operating a large combine is technically equivalent to swinging a sickle, and harvesting lishmah requires that someone who is commanded to observe the mitzvah actually cuts the grain.

Sometimes, it seems that life was simpler when people harvested wheat by hand. A friend of mine who was born in the Soviet Union once described how his father used a hand sickle to harvest wheat for matzoh baking. Even today, some people are mehader to use hand-cut flour for their Seder matzos.

After cutting, the wheat must be stored and transported in a way that guarantees that it remains dry (Sdei Chemed, Vol. 7 pg. 383), and one must make sure that it always remains shamur by an observant Jew (Bi’ur Halacha 453:4 s.v. ulipachos). Furthermore, one must be careful to store it a way that it does not become infested by insects. One must also check grain samples for signs of sprouting, which is a chimutz problem (see Rama 453:3). There is a well-established custom that an experienced posek checks the grains before they are ground (Daas Torah to 453:1 s.v. ve’od).

GRINDING THE FLOUR

As mentioned above, most poskim require supervising the grain lishmah from chimutz from the time it is ground into flour, and all matzoh sold today as kosher lePesach is supervised at least from the time it is ground. The mashgichim must verify that the wheat is not soaked before being ground, which is common practice for non-Pesach flour in many places. Furthermore, a mashgiach must carefully inspect the milling equipment to ensure that no non-Passover flour remains in the grinders and filters.

Chazal instituted many halachos to guarantee that the dough does not become chometz prematurely. For example, one should not bake matzoh with freshly-ground flour, but should wait a day or two after the grinding to allow the flour to cool so that it does not leaven too quickly (Shulchan Aruch 453:9). They were also concerned that one should not bag the Pesach flour in old sacks previously used for chometz-dik flour. In many countries, grains are covered with leaves before grinding in order that they be moist when they are ground. This facilitates separating the different parts of the kernel. Of course, this is prohibited for Pesach-dik flour.

SPECIAL WATER: MAYIM SHELANU

Pesach matzoh must be baked exclusively with mayim shelanu, water that remained overnight (Pesachim 42a), a topic that we explored in last week’s article.

KNEADING THE DOUGH

One may not knead matzoh dough in a warm area or in a place exposed to the sun. Similarly, one must cover the windows, so that no sunlight streams through (see Mishnah Berurah 459:2). Furthermore, one must be very careful that the tremendous heat from the oven does not spread to other parts of the bakery, warming dough before it is placed into the oven (Shulchan Aruch 459:1). Thus, a matzoh factory must accommodate that the dough can be transported to the oven quickly, without exposing the kneading area to heat from the oven.

Once the flour and the water are mixed, one must strive to produce the matzoh as quickly as possible (Shulchan Aruch Orach Chayim 459:1). If dough is left un-worked for eighteen minutes, it is regarded as chometz. However, if one works on the dough constantly, we are not concerned if more than eighteen minutes elapses before placing it into the oven. On the other hand, once one begins to work the dough, it warms up and may begin to leaven if left idle. Therefore the Shulchan Aruch (Orach Chayim 459:2) rules that once one begins working with the dough, it becomes chometz immediately if one leaves it idle. Although there are more lenient opinions as to whether the dough becomes chometz immediately, all agree that one must not allow unnecessary delay without working the dough (see Mishnah Berurah 459:18; Bi’ur Halacha ad loc.; Chazon Ish, Orach Chayim 121:16). Thus, practically speaking, it is far more important to work constantly on the dough to ensure that it does not begin to leaven, than to guarantee that it takes less than eighteen minutes from start to finish.

One should not assume that all hand matzoh bakeries have the same standard of kashrus. I once visited a hand matzoh bakery and observed dough sitting on the table ready for baking, without anyone working on it. I think that people paying the kind of money this bakery charges for its finished product should not receive matzoh that is kosher only bedei’evid (after the fact).

It is, of course, a much bigger concern if dough from an earlier batch is not cleaned off hands and equipment, and mixes into later batches. All equipment must be cleaned thoroughly after each batch to make sure this does not happen.

BAKING PROBLEMS

Several problems can occur during the baking of the matzos. If the baker leaves a matzoh in the oven too long it burns, and if he removes it too soon it becomes chometz. If he removes a matzoh from the oven before it is fully baked, he may not return it to the oven to finish (Rama 461:3).

Other problems can occur while matzoh is baking. Two very common problems are that matzoh becomes kefulah (folded) or nefucha (swollen). A matzoh kefulah is one that became folded inside the oven in such a way that the area between the folds is not exposed directly to the flame or heat of the oven. This area does not bake properly, making the matzoh chometz-dik (Rama 461:5). One may not use the folded part of the matzoh nor the area immediately around the fold (Mishnah Berurah 461:28).

A matzoh nefucha is a matzoh that swells up, usually because it was not perforated properly (Rama 461:5). During baking, air trapped inside the matzoh develops a large bubble. If the swollen area is the size of a hazelnut, the matzoh should not be used, whereas if it is smaller it may be used (see Mishnah Berurah 461:34 for a full discussion).

To avoid discovering these problems on Yom Tov, one should check one’s matzos before Yom Tov to ascertain that none of the matzos are kefulah or nefucha. I can personally attest to finding both among matzos that were meant for use at the Seder.

Of course you may ask, “Why didn’t the bakery mashgiach notice these matzos and remove them?” I, too, am very bothered by this question, but nevertheless, I and many other people have found that the matzos one purchases often include kefulos and nefuchos.

Now, my dear son, I am glad you have been so patient, because now I can answer your first question: “On this night of Pesach, we check our matzoh before eating it. What are we looking for?” We are checking that there are no folded matzos, or bubbles in the matzos the size of a hazelnut.

For part II of this article, click here.

 

 

The Mayim Shelanu Saga

Question #1: Who owns it?

Who owns mayim shelanu?

Question #2: Occupation or Preoccupation

“May I do something else while I bake my matzohs?”

Question #3: Mayim shelanu in Montevideo

“I have some experience at baking my own matzohs, and I will be spending Pesach in Uruguay. I intend to bake my own matzohs for the Seder. Must I use mayim shelanu for baking matzohs in the southern hemisphere?”

Answer:

Among the various instructions that the Gemara provides for baking matzoh is a requirement to use mayim shelanu, which should be translated as water that rested. This article will discuss the halachic requirements that Chazal instituted.

Who bakes the matzoh?

In the time of the Gemara, matzohs were baked fresh daily, and we see that the kneading and baking was usually the responsibility of the women of the household. Until fairly recently, this was common practice in many Sefardic communities, but among Ashkenazim, matzoh production has in most places become a commercial enterprise, since at least the nineteenth century. Today, few people bake their own matzohs, although I know people in Eretz Yisroel who still do so.

What is mayim shelanu?

Let us begin by quoting the Gemara that forms the basis of our discussion:

Rabbi Yehudah said, “A woman should knead dough for matzoh only with mayim shelanu.” Rav Masneh taught this in a public lecture in Papunia, a town in Bavel where the spoken language was Aramaic. Rav Masneh quoted Rabbi Yehudah’s exact Hebrew words, mayim shelanu, which can also mean our water. The next day, all the people came to him with their buckets, requesting that Rav Masneh supply them with his water, so that they could bake their matzohs. He then explained to them that he had meant water that rested, this time using the Aramaic words, maya devisu (Pesachim 42a).

The authorities debate whether Rav Masneh was teaching this as part of the traditional Shabbos Hagadol drosha, whose primary halachic purpose is to educate people regarding the details of the laws of Pesach, or whether he was delivering this discourse on Yom Tov. If it was on Yom Tov, why would Rav Masneh have waited until Yom Tov to tell them about an essential practice necessary to bake kosher-for-Pesach matzohs? The probable answer is that Rav Masneh was a visitor in Papunia on Yom Tov and chose to discuss this topic when asked to give a guest lecture.

Why the anecdote?

The rishonim ask why the Gemara needs (or should I say kneads?) to mention the story of Rav Masneh (Yerei’im). They do not answer that it is to teach us to have a sense of humor. What was the purpose of the story? There are several interesting answers to this question, two of which we will discuss at the end of this article.

But first, let us return to the continuation of the passage of Gemara:

“Rava taught in a public lecture: a woman should not knead her dough for matzoh under the sun, nor may she use hot water, even if it was heated only by being exposed to sunlight, nor may she use water that appears to be room temperature, if it was swept out of a water heater whose coals were removed. She should be careful not to ‘raise her hands’ from the oven until she completes making the matzoh,” which is another way of saying that she should remain focused on the matzoh production until it is finished, and certainly not do anything else in the interim (Pesachim 42a).

Occupation or Preoccupation

Thus, we can now answer one of our opening questions: “May I do something else while I bake my matzohs?”

The answer is that one may not.

After the fact

The Gemara then asks what is the halacha if someone made matzoh using water that did not meet the standards mentioned above, and cites a dispute between Mar Zutra and Rav Ashi whether the matzoh may be used. Mar Zutra permitted the matzoh thus prepared, whereas Rav Ashi prohibited it. The halachic authorities rule according to Rav Ashi, that this matzoh may not be used. The authorities then debate whether this ruling applies only to the latter cases — one who kneaded the matzoh outdoors or who used warm water — or does it apply even to someone who kneaded matzoh with water that was not mayim shelanu. Rashi is quoted as having ruled that matzoh prepared with water that was not mayim shelanu is permitted bedei’evid, after the fact, whereas most authorities prohibit this matzoh.

Mayim shelanu wherefore?

Why did Chazal prohibit using water for matzoh baking, unless it rested? The poskim cite two main approaches.

According to Rashi, mayim shelanu is required because, during the winter months, the sun traverses the earth much closer to the earth than it does in the summer. Thus, the areas of the earth in which there are open bodies of water become heated to a much greater degree in the winter than they are in the summer, making the water too warm for baking matzohs. Since Pesach in the northern hemisphere is at the end of the winter, it arrives when outside water is warmer than desired for matzoh baking, until it has had ample time to cool. Since the Gemara mentions specifically that the water was lanu, many authorities maintain that the water must rest in a cool place for a minimum of twelve hours (Gra).

Mayim shelanu in the southern hemisphere

It would seem that, according to Rashi, there is no need for mayim shelanu when making matzoh before Pesach in Argentina, Australia, South Africa and anywhere else in the southern hemisphere, since, in that part of the world, Pesach falls at the end of the summer, not the end of the winter. Similarly, someone baking Pesach matzohs in the summer months in the northern hemisphere would not require mayim shelanu. Although this last piece of information may not be germane to any existing kosher lePesach matzoh bakeries, it will be of interest to those producing matzoh for the grain offerings, the menachos, to be offered in the Beis Hamikdash when it is rebuilt, speedily and in our days, since, with only two exceptions, they may not be chometz.

River water

The rishonim quote that Rashi himself held that mayim shelanu is required only when using water from a spring or a cistern, but not when using water drawn from a river. Some explain that this is because we can assume that it has already had sufficient time to cool (Responsum of Rashi, quoted by Ravyah #485, as explained by Kolbo #48). However, later authorities (Ravyah #485; Shulchan Aruch, Orach Chayim 455:1) do not accept this lenient ruling and require that river water wait several hours before use for baking matzohs.

Here comes the sun!

The second reason for mayim shelanu is that provided by Rav Eliezer of Metz, a disciple of Rabbeinu Tam and the author of Sefer Ye’rei’im, an important early halachic source. The Ye’rei’im explains that one should not use water for matzohs unless it rested, because water drawn at night from underground was heated by the sun, since the sun is on the other side of the earth at night. He rules that water drawn at the very beginning of the night can be used immediately, since it has not yet had opportunity to become hot. This lenience applies to water drawn at the very end of the day, during twilight (bein hashemashos), or at the beginning of the night.

Luck of the draw

Among the major halachic commentaries to the Tur and the Shulchan Aruch, we find three different ways of understanding the Ye’rei’im’s position:

  1. According to the Taz, the Ye’rei’im required that matzohs be baked only with water that was drawn during the evening, as described above. Any water drawn at any other time is considered to have become heated and may no longer be used for matzoh production. The Taz contends that one may not use for baking matzohs any water that was ever known to be hot, even if it was subsequently cooled and allowed to rest. Several other authorities, such as the Hagahos Semaq 222:9, and the Mizrachi, also rule this way (as understood by the Beis Yosef and the Taz.) The reason why we refer to the water as “water that rested overnight” is because usually one needs to draw it at least a day before one will use it, and prior to the night.
  2. According to the Bach’s understanding of the Ye’rei’im, one may never use water drawn at night, but water drawn in the daytime becomes usable after it has been allowed to cool until the following morning.
  3. According to the Beis Yosef’s understanding of the Ye’rei’im, water drawn any time other than twilight becomes permissible for matzoh production after it has been in a cool place overnight. Thus, water drawn at night becomes usable the morning after the following night, whereas water drawn in the daytime becomes usable the following morning.

According to all three opinions, the Ye’rei’im permitted immediate use of water that was drawn in the evening, whereas Rashi required this water to rest overnight. According to Rashi, water drawn in the daytime is acceptable for matzoh production after it has been left for twelve hours in a cool place, whereas according to the Ye’rei’im (as understood by the Beis Yosef and Bach), this water may not be used until the following morning, which is considerably more than 12 hours. The halachic authorities rule that lechatchilah one should draw mayim shelanu in the evening and then wait overnight until one uses it, which is basically following the stringencies of both Rashi and the Ye’rei’im.

This means that one draws water from a spring, well, or river immediately before twilight and leaves it in a cool place for a minimum of one complete night to allow it to cool (Shulchan Aruch Orach Chayim 455:1 and commentaries). One may draw water for several days at one time (Shulchan Aruch 455:1), provided one draws the water immediately before twilight and then stores it in a cool place, although some poskim prefer that the water be drawn freshly each night (Maharil quoted by Ba’er Heiteiv 455:7). The water should not be drawn or stored in a metal vessel since metal conducts heat and warms the water (Magen Avraham 455:9). In addition, the water should not be drawn or stored in a vessel that has been used previously to hold other liquids since some liquid may mix with the water, and this may cause the dough to rise faster than otherwise (Magen Avraham ibid.). Many contemporary poskim discourage using tap water for matzos because of concern that fluoride and other chemicals introduced into the water may cause the dough to rise more quickly (see Mo’adim U’zemanim 3:261). It is important to note that the requirement for mayim shelanu is not only for the matzos eaten at the Seder, but also for all matzos eaten during the entire Pesach.

Rav Masneh’s lecture

At this point, let us return to a previous question: The Gemara tells us the amusing anecdote concerning the misunderstanding that resulted from Rav Masneh’s lecture, where the people misunderstood mayim shelanu to mean Rav Masneh’s water, until he clarified that it meant water that rested overnight.  Why is it important for the Gemara to tell us this story? From the Ye’rei’im onward, many halachic authorities discuss this question, providing a variety of answers. Some explain that Rav Masneh delivered this lecture on Yom Tov, and they infer the following conclusion: If matzoh made without mayim shelanu is prohibited, Rav Masneh would have left the people of Papunia with nothing to eat – they would have had to destroy all the matzoh they had already produced, since it was not made using mayim shelanu, and they would have had nothing to eat the next day either, since they had no water with which to bake. Since the Gemara mentions nothing of the hardship that was imposed by his ruling, we should conclude that the Gemara’s purpose is to teach that mayim shelanu is required only lechatchilah, but, after the fact, matzoh made using water that was not mayim shelanu is permitted (Sefer Ye’rei’im).

Others contend that Rav Masneh taught this as part of the Shabbos Hagadol drosha, and that Pesach that year began on Sunday night. (In our current calendar implemented by Hillel Hanasi, Pesach cannot begin on Sunday night. However, Rav Masneh lived at a time when the central Beis Din still determined the calendar on a monthly basis, and, in that era, Pesach could begin on any day of the week.) On Sunday, the people came to fetch water from Rav Masneh, intending to bake their matzohs in the afternoon. This was the common practice in earlier days – matzohs for the Seder were not baked until the afternoon of Erev Pesach, a practice mentioned in Shulchan Aruch and still practiced by many.

Now that they had no water with which to bake their matzohs, what were they to do for matzohs for the Seder? Since the Gemara does not say that they had a matzoh-less Seder, there are a few options:

  1. As we mentioned above, it could be that mayim shelanu is only a lechatchilah rule, but, after the fact, one who has no mayim shelanu can bake matzohs with room temperature water (Raavyah; Semag).
  2. As long as several hours have elapsed since the water was drawn, it is called mayim shelanu, regardless as to when it was drawn. Thus, having heard Rav Masneh’s ruling, the people immediately drew water and began timing the cooling off period. Towards evening, they baked their matzohs (Ravyah #485), or possibly even in the middle of the Seder!

As we all know, matzoh is made of only two ingredients, kosher-for-Pesach flour and water. Although few of us bake our own matzohs, we now know that there are halachos germane to what water one must use for baking matzohs. This provides some information that enables us to understand what is involved in the kashrus of one of the two ingredients in the manufacture of matzoh.

Baking with Hallel!

While baking matzoh on erev Pesach, there is a custom of singing Hallel with tremendous emotion. The moments that we recite Hallel then, and on Pesach itself, can encapsulate the most fervent experience of His closeness. Reliving Hashem’s miracles rekindles the cognizance of Hashem’s presence. In the merit of joyously performing the mitzvos of Seder night, may we soon see the return of the Divine Presence to Yerushalayim and the rededication of the Beis HaMikdash, and be zocheh to fulfill all of these mitzvos, including the korban Pesach!

 

 

Purim Mishaps, Part II

Question #1: Purim Damage

An inebriated Purim drop-in damaged some property in our house. May we collect damages?

Question #2: Hurt at a Wedding

At a wedding, two people collided, causing one of them to break a leg and lose work time. Is the person who hurt him liable?

Question #3: Purim Dress

Is it permitted for a man to wear a woman’s dress on Purim?

Introduction:

In part I of this article, we discussed whether someone who damaged property in the course of festivities is required to make compensation. We learned that there are sources on this topic dating back to the time of the Beis Hamikdash!

As we noted in the earlier article, early sources in the Mishnah and Gemara discuss whether one is required to pay for harm that occurred in the course of a celebration. According to Rashi’s interpretation, after the completion of the hakafos in the Beis Hamikdash on Hoshanah Rabbah, the adults would grab the lulavim and esrogim from the children and eat the esrogim. Rashi explains that there was no prohibition involved, because this was part of the holiday festivities.

Most, but not all, authorities accept this approach. The Beis Yosef (Orach Chayim 695) quotes some of the sources that excuse the merrymaker from damages, but states that this immunity exists only in communities where this type of rowdy behavior is commonplace. He then notes that in the area in which he lives, this type of raucous celebrating does not exist. Therefore, we understand why he omits any discussion of exempting merrymakers from damages in the Shulchan Aruch. On the other hand, numerous other authorities, predominantly Ashkenazim, exempt a person from paying damages that occur as a result of mitzvah gaiety (e.g., Mordechai, Sukkah 743; Agudah, Sukkah; Terumas Hadeshen 2:210; Yam shel Shelomoh, Bava Kama 5:10). The Rema rules this way in three different places (Orach Chayim 695:2; 696:8; Choshen Mishpat 378:9), and it is accepted subsequently as normative halacha.

Limitations

Notwithstanding the generally accepted approach that a merrymaker is exempt from paying damages, there are exceptions.

Physical injury

Does this exemption of liability apply, even when there is physical injury? The Magen Avraham raises this question and notes that it is the subject of a dispute among halachic authorities. He quotes the Keneses Hagedolah, who rules that one is obligated to pay for physical harm, whereas the Agudah rules that one is not. I noted in the first part of this article that the Terumas Hadeshen appears to agree with the Agudah that one is exempt, even when there is physical injury. His case was someone who used holiday festivities as an excuse to push another person very hard, causing major injury. The Terumas Hadeshen obligated him to pay, because the injury was intentional, but seemed to accept that if the damage had been a result of merrymaking, there would be no obligation to pay.

Why is he exempt?

Until now, we have been talking about whether a merrymaker is excused from financial compensation for damages, and we have discussed sources that exempt him, at least under certain circumstances, and other sources that do not. The next step in our discussion is to understand why he should be exempt. The halachic rule is that odom mu’ad le’olam, a person is always responsible to pay for damage that he causes (Mishnah, Bava Kama 26a). Why is there an exception for a merrymaker?

I have found three halachic approaches that suggest why the person responsible for causing damage is exempt from paying. As we will see, there are practical differences in halacha that result from the different approaches.

  1. Implied mechilah

When people participate in an activity together, there is an implied mechilah that one will not collect damages.

  1. Hefker beis din hefker

In order to not put a damper on people’s celebrating, Chazal exercised their authority of hefker beis din hefker (Bach, Yoreh Deah 182).

  1. Mitzvos are different

There is a special exemption for people participating in a mitzvah.

Not mutually exclusive

We should note that the three reasons we have mentioned are not mutually exclusive. A halachic authority might hold that two or three of the reasons apply. In other words, someone might contend that whenever damage occurs in the course of a simcha shel mitzvah, the party responsible is exempt for any of the reasons provided.

  1. Implied mechilah

One possible reason to exempt the merrymaker from damages is because of a principle that when people participate in an activity together, there is an implied mechilah that one will not collect damages. Here is an early example of such a ruling:

Two people were wrestling. In the course of their bout, one of the combatants knocked the other to the floor and then pounced on him. Unfortunately, his opponent suffered serious permanent injury as a result. The question asked of the Rosh is whether there is an obligation to pay damages.

The Rosh ruled that two people who decide to wrestle agree implicitly that each is mocheil the other for damages that happen as a result of their activity. Therefore, one cannot afterward submit a financial claim for injury (Teshuvos HaRosh #101:6). The Rosh is teaching us a halachic principle that one cannot claim damages that result from an activity that he joined willfully. Similarly, if someone stomps inadvertently on another person’s foot during dancing at a wedding or on Simchas Torah, there is no requirement to pay damages. Everyone knows that, in the course of the dancing in a crowded shul on Simchas Torah or at a wedding, occasionally someone is going to step on your foot. It is quite clear that everyone accepts that this may happen and is mocheil the person responsible. If you want to be certain not to get hurt, don’t participate in the dancing.

Minor damage

Notwithstanding that the logic asserted by the Rosh is undoubtedly true, it cannot be the only reason for the halacha exempting merrymakers from damage, for the following reason: According to Rashi’s understanding of the Mishnah quoted above, adults took the lulavim and esrogim of children, and this was acceptable because it was part of the holiday celebration. Yet, children do not have the halachic ability to be mocheil. Thus, at least according to Rashi, the heter releasing a merrymaker from liability must be based on a different halachic principle.

  1. Hefker beis din hefker

The principle of hefker beis din hefker allows a rabbinic court, or someone with equivalent authority, the halachic ability to forfeit a person’s ownership or claims. In our instance, it means that they rescinded the claimant’s rights to collect for damages that he incurred. The Bach assumes that the reason for exempting a merrymaker from paying damages is because Chazal exercised their authority of hefker beis din hefker in order not to put a damper on people celebrating (Bach, Yoreh Deah 182). In other words, someone may be reluctant to join the dancing at a wedding or on Simchas Torah out of concern that he may inadvertently hurt someone and be liable for damages. In order that people celebrate without reservation, Chazal exempted participants in certain semachos from paying damages.

This approach explains why adults were permitted to commandeer the property of children as part the Sukkos celebration, even though children cannot be mocheil. Although a child’s statement that he forgives someone’s liability to him has no legal status, Chazal have the ability to forfeit such a claim.

  1. Mitzvos are different

Here is yet another explanation why a merrymaker is exempt from paying damages: This is because the merrymaker was performing a mitzvah whose proper fulfillment precludes being as careful about one’s actions as one ordinarily must be. We find a similar idea in the following passage of Gemara (Bava Kama 32a): Someone running through a public area – an action that is otherwise considered unacceptable and liable – is exempt from paying damages if, in his rush to be ready for Shabbos, he collides with another person. Since he is racing for a mitzvah, he is not liable (see Piskei Rid ad locum).

The same approach can be applied to our merrymaker. He will be unable to entertain properly if he is constantly thinking of the legal responsibility that might result from his actions. Therefore, as long as his celebrating is within normally accepted limits, he is exempt from damages that result. Later in this article, I am going to suggest that an early halachic authority, Rav Yehudah Mintz, usually called the Mahari Mintz, held this way.

Hurt at a wedding

At this point, let us examine the second of our opening questions: At a wedding, two people collided, causing one of them to break a leg and lose work time. Is the person who hurt him liable?

According to the Terumas Hadeshen and the Agudah, there is no requirement in this instance to pay damages, since they rule that a merrymaker is exempt from damages even if there was physical injury. In this instance, the Bach would also agree that he is exempt since, although there is physical injury, it is likely to heal, and he rules that as long as no permanent damage resulted, a merrymaker is exempt from making compensation. However, it would seem that the Keneses Hagedolah, who rules that physical injury is not included in this exemption from compensation, would require our merrymaker to pay.

Purim Dress

At this point, we will examine the third question asked above: “Is it permitted for a man to wear a woman’s dress on Purim?”

The Mahari Mintz was one of the greatest halachic authorities of 15th century Ashkenaz. Born in Germany, he was the rav of Padua, Italy, for 47 years, where he founded one of the most famous yeshivos of his era. (To play a bit of Jewish geography, the Maharam Padua, one of the Mahari Mintz’s renowned disciples, who married the Mahari Mintz’s granddaughter and also became his successor, was a cousin of the Rema.)

In a responsum, the Mahari Mintz addresses whether it is permitted for men to wear women’s clothing as part of the Purim celebration and, vice versa, whether a woman may wear men’s clothing. The Mahari Mintz quotes a mechutan of his, Rav Elyakim – whom the Mahari Mintz describes as knowing all areas of Torah and being the greatest halachic authority of his time – as having permitted this. The Mahari Mintz agrees with his mechutan, explaining that the prohibition against wearing other gender clothing is only when one’s interest is to dress or act like the other gender, but not when one’s goal is to celebrate. He quotes as proof an early ruling of the Riva, one of the baalei Tosafos, that all food grabbed by young men in the course of the Purim celebration is not considered stolen, provided that this happened sometime between the reading of the Megillah at night and the end of the Purim seudah (Shu”t Mahari Mintz, end of #16). Thus we see that celebrating Purim can sometimes exempt one from other obligations.

The Bach took great issue with the Mahari Mintz’s ruling permitting the wearing of other gender clothing on Purim. Allow me to quote some of the Bach’s discussion on the subject. “One should note that there is a practice on Purim that men wear women’s clothing, and vice versa, without anyone protesting that this is a violation of halacha. According to what I explained above, wearing clothing of the opposite gender to appear like them is certainly forbidden. Rav Yehudah Mintz already discussed this issue in his responsum, saying that, since their intention is to celebrate Purim, there is no prohibition, similar to the ruling that a man may shave his underarm hair when it is uncomfortable (an act that is usually prohibited, because of the prohibition of men wearing women’s clothing and performing activities that are considered feminine). However, it appears to me that what Rav Yehudah Mintz wrote is inaccurate, since Rabbi Eliezer of Metz [one of the baalei Tosafos, a disciple of Rabbeinu Tam, who lived in the 12th century] wrote explicitly that one may not wear clothing of the other gender in order to enhance the celebration of a choson and kallah… Without any question, had Rabbi Yehudah Mintz seen the words of Rabbi Eliezer of Metz, he would not have written what he did. Rabbi Yehudah Mintz also wrote that, since there is the established heter of grabbing food on Purim and it is not considered theft, similarly, changing clothing [to that of the other gender] is permitted. However, his logic here is erroneous, because in regard to money, there is a halachic rule of hefker beis din hefker… however, the city elders cannot permit something that is prohibited [such as wearing clothing of the other gender]” (Bach, Yoreh Deah 182).

Notwithstanding the Bach’s disagreement, the Rema (Orach Chayim 696:8) rules that it is permitted to wear clothing of the other gender as part of the celebration of Purim, provided that one does so only on the day of Purim itself. (We should note that the Mishnah Berurah and many other late authorities frown on the practice.)

The question that we need to address is, what did Rabbi Yehudah Mintz hold is the reason to exempt a merrymaker from paying for damage that he caused? He could not have held either of the first two reasons we mentioned above, since neither reason would allow someone to celebrate by wearing clothing of the other gender, and Rabbi Yehudah Mintz compares the two practices. Apparently, he understood that the basis for exempting someone from payment is because he was involved in performing a mitzvah (celebrating Purim), and that wearing clothes of the opposite gender is prohibited only when one’s motivation is to look somewhat like the other gender, but not when one is doing so to perform a mitzvah.

Conclusion

In general, we must realize that we should perform Hashem’s mitzvos with much enthusiasm. Although this is an important value, we must also always be careful that our enthusiastic observance of mitzvos does not cause harm. Nevertheless, we now know that there are instances when someone might be exempt from payment for damage he caused while he was performing a mitzvah, particularly when the mitzvah involved celebrating.

 

 

Purim Mishaps

In honor of Parshas Zochor, we will be discussing:

Purim Mishaps

Question #1: Stole a Brocha?

Someone walked into our Purim seudah, helped himself to some kreplach, recited a loud brocha and then disappeared. Should we have answered “amen” to his brocha?

Question #2: Purim Damage

An inebriated Purim drop-in damaged some property in our house. May we collect damages?

Question #3: Hurt at a Wedding

At a wedding, two people collided, causing one of them to break a leg and lose work time. Is the person who hurt him liable?

Introduction

Although we certainly hope that our Purim celebrations do not result in anyone getting hurt, the topic of this week’s article is whether someone is required to pay compensation, should he cause damage in the course of festivities. As we will discover, this is an old question, with sources dating back to the time of the Beis Hamikdash! As always, our discussion is not meant for halachic conclusion – for that we refer the reader to his own rav, dayan or posek. The purpose of our article is to provide educational background.

Early sources in the Mishnah and Gemara discuss whether one is required to pay for harm that transpired in the course of a celebration. Let us begin with an anecdote mentioned in the Mishnah (Sukkah 45a), which states, according to Rashi’s interpretation, that after the completion of the hakafos in the Beis Hamikdash on Hoshanah Rabbah, the adults would grab the lulavim and esrogim from the children and eat the esrogim. Rashi explains that there was no prohibition involved because this was part of the holiday festivities. To quote Rashi’s actual words, Ve’ein badavar lo mishum gezel velo mishum darchei shalom shekein nohagu machmas simcha, “there is no violation of the laws of theft or of darchei shalom, because this practice was part of the celebration.” Rashi’s unusual reference to “theft or darchei shalom” is presumably based on the fact that children who were underage could have acquired their esrogim in one of two ways:

(1) Their fathers could have purchased them, in which case the lulavim and esrogim belong to the children min haTorah, and one would have thought that taking them violates stealing.

(2) The children found the lulavim and esrogim, in which case the violation is because of darchei shalom. (See Mishnah, Gittin 59b, for further discussion on this last point.)

(Those who would like to research this subtopic in more detail should note that the approach is based on the comments of the Kapos Temarim, who disagrees with the view of the Tosafos Yom Tov.

The Kapos Temarim was authored by Rav Moshe ibn Chabib, a distant cousin of the author of the Ein Yaakov [both of them were descendants of the Nimukei Yosef]. Rav Moshe ibn Chabib was born in Salonica about the year 1654, attended yeshivah in Istanbul and was sent to Yerushalayim by Rav Moshe Ya’ish, a businessman in Istanbul, to become a magid shiur of the yeshivah there that Rav Ya’ish supported. As hakaras hatov to his benefactor, for the first three years after his arrival in Yerushalayim, Rav Moshe ibn Chabib sent back to Rav Ya’ish notes from his shiurim in the yeshivah, which he developed into seforim on mesechtos Rosh Hashanah, Yoma, and Sukkah. Rav Ya’ish arranged for these chiddushim to be published in Istanbul.

After three years in Yerushalayim, Rav Moshe Galanti, the first to hold the position called rishon letziyon, passed on, and Rav Moshe ibn Chabib, then only about thirty-five years old, was appointed as his replacement to be the rishon letziyon. This is quite astounding, since there were approximately one hundred great talmidei chachamin at the time in the very small community of Yerushalayim, many of them decades older than he. This underscores his tremendous status as a gaon in learning.

Unfortunately for us, his responsibilities as rishon letziyon apparently precluded his continuing his series on Shas. We do have scattered responsa from him and a monumental work on the laws of gittin. Rav Moshe ibn Chabib served as rishon letziyon until his premature passing at the age of 47.)

Wedding jousting

Tosafos notes that, according to Rashi, the following halacha would result.

“We can learn from here that young men who ride on their horses to greet a chosson and they fight together (probably a jousting match or something similar, performed to entertain the celebrants) – if one of them tears the other’s clothing or injures his horse, they are not liable, because this is the minhag established because of simcha.” In other words, when people are involved in celebration, even should it get somewhat rowdy, the established practice exempts a person from paying damages that may result.

We should note that Tosafos mentions that one young man tore another’s clothing or injured his mount, both of which are instances of property damage – but Tosafos does not discuss whether there is liability in the event of physical injury. We will discuss more on this point shortly.

Tosafos then suggests an alternative way to explain the Mishnah: After the last of the hakafos, the children removed their own lulavim from the hadasim and aravos and began to play with their lulavim and eat their own esrogim (and not that the adults grabbed the children’s lulavim and esrogim). According to this approach, the Mishnah contains no reference to someone taking another person’s property as part of the celebration, and it therefore provides no source that a celebration exempts liability should one damage someone else’s property. However, although the second approach does not provide a source exempting a simcha situation from liability, this does not necessarily mean that those who understand the Mishnah this way require that a celebrant pay damages. It simply means that there is no source from the Mishnah regarding this law.

It is interesting to note that Rashi on the Gemara (46b) cites Tosafos’ approach in explaining the Gemara and disagrees with it on the basis of a Midrash Rabbah that he quotes. This leads to an interesting discussion among the early acharonim.

The Maharam notes that Tosafos does not point out in either place that Rashi himself mentions the other approach and disagrees with it. The Maharam concludes that Tosafos obviously did not have this text in Rashi; he also notes that he found other editions of the Gemara that do not have this Rashi. The Gra similarly states that this text is not part of what Rashi wrote but was written by someone later, and then added to our editions by an errant copyist. However, we should note that these comments are attributed to Rashi’s commentary even in the very earliest printed Shas, the Bomberg edition, printed in Venice in 1521. That would mean that the Maharam and the Gra are noting that this mistake crept into Rashi even earlier, probably before the era of printing.

We find evidence that not all rishonim agree that someone who caused damage while celebrating a simcha is exempt. This disagreement is borne out by a ruling of the Rosh, recorded in the following responsum (Teshuvos Harosh 101:5).

Just muling around

For the occasion of his wedding and sheva brochos, a chosson rented an elegant mule. The rental agreement from the non-Jewish owner included a provision that, if the mule was injured, the renter/chosson would be required to pay not only damages but also a substantial fine, far more than the market value of the animal.

In the course of the merriment, a celebrant who was on horseback playfully chased after the chosson. His steed collided with the chosson’s mule, severely injuring the mule. Subsequently, there was a din Torah concerning payment for the damage to the chosson’s rented mule. (Some friend! And what a way to celebrate your wedding!) The Rosh rules that the friend is obligated to pay the damages for the mule, but he is not obligated to pay the cost of the contractual fine over and above the value of the mule, for reasons unrelated to our discussion.

The Maharshal notes that if a celebrant at a simcha is exempt from damages, the chosson’s friend should have no legal responsibility to make restitution. He therefore concludes that the Rosh disagrees with those who contend that there is an exemption from paying damages caused by mitzvah merriment (Yam shel Shelomoh, Bava Kama 5:10).

Rowdy Ashkenazim

The Beis Yosef (Orach Chayim 695) quotes some of the sources that excuse the merrymaker from damages, but notes that this immunity exists only in communities where this type of rowdy merrymaking is common practice. He then notes that in the area in which he lives, this type of rowdy celebrating does not exist. Therefore, we understand why he omitted any discussion of exempting merrymakers from damages when he wrote the Shulchan Aruch. On the other hand, numerous other authorities, predominantly Ashkenazim, exempt the person from paying damages caused by mitzvah gaiety (e.g., Mordechai, Sukkah 743; Agudah, Sukkah ad locum; Terumas Hadeshen 2:210; Yam shel Shelomoh, Bava Kama 5:10). The Rema rules this way in three different places (Orach Chayim 695:2; 696:8; Choshen Mishpat 378:9), and it is accepted subsequently as normative halacha. (One later authority who disagrees with the Rema is the Yesh Seder Lemishnah, in his commentary to the Mishnah in Sukkah.) Here I will quote one of the places where the Rema cites this law: Young men who ride to greet the chosson and kallah, and damage one another’s property while celebrating, are exempt from paying, since this is the accepted custom. However, if it appears to beis din that this practice needs to be curtailed, it is authorized to require payment.

Limitations

Notwithstanding the generally accepted approach that a merrymaker is exempt from paying damages, there are exceptions. Here is an extreme example, mentioned by the Terumas Hadeshen:

Eliezer claims that Gershom pushed him extremely hard during the Hoshanos and the subsequent impact broke Eliezer’s shoulder blade. Eliezer is now suing Gershom for compensation for his medical expenses, lost work time, and other damages. Gershom retorts that since it happened in the course of the Sukkos celebrations, he is exempt from paying. Testimony was introduced that Gershom’s act was premeditated – he was angry at Eliezer and used the Hoshanos observance as a ruse to disguise his reprehensible intentions. The two men were indeed involved in a serious tiff.

Indeed, although the Torah would require someone who injures someone intentionally to pay not only for the other abovementioned costs, but also for embarrassment and pain, such claims require the authorization of judges who have semicha for these laws in a mesorah that traces itself back to Moshe Rabbeinu. In addition, these claims can be collected only when they can be proven. Nevertheless, the Terumas Hadeshen rules that since the damage was malicious, and Gershom attempted to mask his intentions in a way that he would not be liable, the situation requires punishment beyond what the law would necessarily require (Terumas Hadeshen 2:210).

We should note that the Terumas Hadeshen contends that Gershom is responsible because he intended to injure Eliezer. However, had the injury been unintentional, the Terumas Hadeshen agrees that there would be no financial liability, notwithstanding the fact that there was physical injury and fairly extensive damages. This leads us to our next subtopic.

Physical injury

Does the exemption of liability caused in the course of mitzvah merriment apply even when there is physical injury? The Magen Avraham raises this question, and notes that it is subject to a dispute among halachic authorities. He quotes the Keneses Hagedolah, who rules that one is obligated to pay for physical harm, whereas the Agudah rules that one is not. We also noted above that the Terumas Hadeshen held, like the Agudah, that one is not obligated to pay even in the instance of physical injury, should the cause of damage be the merriment and not someone’s despicable intentions.

A similar question was asked of the Bach. During a wedding meal, one of the celebrants smashed his drinking glass against a wall and the flying glass caused someone serious, permanent injury. Is the glass smasher obligated to compensate for the damages, or is he exempt because of the rule of merrymaking? The Bach cites the dispute about whether a merrymaker is obligated to compensate for physical injuries. He rules that, even according to those who rule that physical injuries are included in the exemption, permanent physical injury is not included (Shu”t Habach #62). This opinion of the Bach is cited by some later authorities (He’aros Rav Boruch Frankel on Shulchan Aruch, Orach Chayim 695; Mishnah Berurah 695:13).

Stole a Brocha

At this point, let us examine the first of our opening questions:

Someone walked into our Purim seudah, helped himself to some kreplach, recited a loud brocha, and then disappeared. Should we have answered “amen” to his brocha?

The halachic question here is that, in general, it is forbidden to recite a brocha on stolen food, and, therefore, one may not answer amen to such a blessing. The question is whether this food is considered stolen.

Some prominent 15th century halachic authorities quote an early ruling of the Riva, one of the baalei Tosafos, that all food grabbed by young men in the course of a Purim celebration is not considered stolen, provided that this happened sometime between the reading of the Megillah at night and the end of the Purim seudah (Terumas Hadeshen 1:110; Shu”t Maharam Mintz, end of #16). The Beis Yosef (Orach Chayim 696) quotes this ruling as normative halacha. As a result, the Mishnah Berurah rules that someone who took food from another person during the Purim celebrations may recite a brocha. Nevertheless, he also quotes the Shelah (quoted by the Elya Rabbah) who frowns on this behavior, stating that anyone concerned about his Judaism should not conduct himself this way. Nevertheless, notwithstanding the conclusion that the Mishnah Berurah applies to this ruling, the halacha remains that, since the individual who helped himself to the kreplach did not steal, he was required to recite a brocha prior to eating it, and the brocha was therefore not recited in vain. The result is that one is required to answer amen to this brocha.

Please click here for Part II of this article. .

 

Salting on Shabbos

 

Question #1: Is this a Bubba Meisah?

“When I was a child, my bubby, a”h, told me that the rav of the shtetl in which she was raised once permitted them to have a gentile kasher meat on Shabbos. Could that possibly be true?”

Question #2: Salting on Yom Tov?

“May one salt vegetables on Yom Tov?”

Question #3: Saltwater at the Seder

“If we forgot to prepare saltwater for the Seder, may we make it on Yom Tov? Does it make any difference this year, when the first night of Pesach falls on Shabbos?”

Question #4: Salting Snow

“May one spread salt outside on Shabbos so that people do not slip?”

Introduction:

Parshas Terumah mentions the construction of the mishkan, which provides the laws of what work may not be performed on Shabbos. We learn from this the 39 melachos involved in building the mishkan that are also the 39 melachos that we may not do on Shabbos.

One of the 39 melachos is me’abeid, tanning. This melachah was performed as part of the construction of the mishkan, because of the need to preserve the hides of the rams and the techashim, whose skins were used for the covering of the ohel mo’ed. The purpose of tanning is to preserve and strengthen hide, and to manufacture leather from it. One of the steps performed while tanning is salting the rawhide, which draws out its moisture. One of the questions that we will be discussing is whether, and to what extent, one may salt food items on Shabbos and Yom Tov. Is this considered similar enough to the melachah of tanning that it is also prohibited?

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

The Gemara’s discussion

Prior to the invention of the freezer, the most practical method of preserving meat for long term use was to pack it heavily in salt. The Gemara (Shabbos 75b) records a dispute between the amora’im, Rabbah bar Rav Huna and Rava, whether salting meat on Shabbos to preserve it is prohibited min haTorah. The dispute between the amora’im was whether this salting, whose purpose is to make the meat last, is comparable to salting hides and therefore included in the Torah’s prohibition. Rabbah bar Rav Huna held that since one’s goal is to preserve the meat, this salting is indeed prohibited min haTorah, whereas Rava held that the melachah of tanning does not apply to food, presumably because this process is considered dissimilar from salting hides to make leather. The goal of tanning a hide is to create strong and permanent leather that will last, perhaps, even for years. Although salting meat to preserve it is for the purpose of making it last, the goals of the two processes are not similar enough to make them comparable – when tanning, one is trying to make leather very tough, which is not the goal of salting meat (see the continuation of the Gemara there).

How do we rule?

Do we paskin according to Rabbah bar Rav Huna, that it is prohibited min haTorah to salt meat in order to preserve it, or according to Rava, that no Torah violation is involved when salting meat? We find that the rishonim dispute how we rule. Whereas the Rambam (Hilchos Shabbos 11:5) concludes that ein ibud ba’ochalin, the melachah of me’abeid does not apply when salting food, other rishonim rule that one can violate Shabbos min haTorah when salting meat to preserve it (Rashba, Toras Habayis 3:3; Piskei Rid, Shabbos 75b; Me’iri, Beitzah 11a). Among the acharonim, we find this dispute repeated, with the Magen Avraham (321:7) siding with the Rambam and contending that ein ibud ba’ochalin, whereas the Elyah Rabbah (321:9) and the Chasam Sofer (Shabbos 75a) rule that packing meat in salt to preserve it is indeed prohibited min haTorah.

There is an interesting difference in practical halachah that results from this dispute.

Accepted halachah prohibits asking a gentile to perform an act on Shabbos that a Jew is prohibited to do min haTorah. (An exception to this rule is to accomodate the needs of someone who is ill, a topic that is beyond the scope of this article [Shulchan Aruch, Orach Chayim 328:17].) However, under certain extenuating situations, such as major financial loss, one may ask a gentile to perform an activity that, were a Jew to do it, would violate only a rabbinic injunction (Shulchan Aruch, Orach Chayim 307:5).

According to the position of the Rambam and the Magen Avraham that packing meat in salt to preserve it does not violate a Torah prohibition, one is permitted to have a gentile preserve the meat, in a situation of major financial loss. However, according to the opinion of the other authorities, one would not be permitted to do so.

Salting korbanos

Prior to placing offerings on the mizbei’ach (the altar), there is a requirement to salt them (Vayikra 2:13). The authorities dispute whether this activity would be considered a melachah on Shabbos. The Rashba* (Menachos 21a) and the Me’iri (Beitzah 11a) rule that this salting qualifies as a melachah, whereas several other commentaries contend that it does not. All agree that since offering the regular daily korbanos and the special Shabbos korbanos supersedes Shabbos, salting these korbanos supersedes Shabbos, similar to the law that a bris milah is sometimes performed on Shabbos. The dispute between the authorities would be applicable to someone who, in error, salted an offering that was not to be offered on Shabbos – did he desecrate Shabbos min haTorah when he salted it?

Kosher salting of meat

Now that we have some background to the laws of salting meat on Shabbos, we can discuss the first question that was raised above:

“When I was a child, my bubby, a”h, told me that the rav of the shtetl in which she was raised once permitted people to have a gentile kasher meat on Shabbos. Could that possibly be true?”

Allow me to provide an introduction: Prior to preparing meat for the table, halachah requires that one salt it to remove the blood. We now need to understand: Would performing this salting on Shabbos be prohibited min haTorah as an extension of the prohibition of salting or tanning leather? In the above-quoted Gemara, Rava rules that it is not. The Gemara subsequently concluded with a comment from a later amora, Rav Ashi, who said that Rabbah bar Rav Huna contended that one violates Shabbos min haTorah only when one is salting meat for the purpose of preserving it, such as when he intends to pack for a lengthy trip. Only this type of salting can possibly be included in the Torah violation of me’abeid. However, salting meat to make it kosher for the Jewish table is certainly not a Torah violation of me’abeid. The Aruch Hashulchan (321:29) explains that salting hides is prohibited min haTorah, because this is one stage in the process of making leather last for a very long time. When kashering meat, one is not trying to have the meat last long; therefore, this is not included in the Torah’s prohibition.

Thus, we see that all opinions in the Gemara conclude that there is no Torah prohibition when salting meat for kashrus purposes. Not being omniscient, I have no idea what were the circumstances at the time that the rav in “bubby’s” shtetl paskined. But the background to the question makes it sound as if that reasonably could actually have happened. Gentiles in the shtetl who assisted in Jewish homes were very familiar with Jewish practices, including how to kasher meat, and they often helped the housewife do so. It is certainly possible that there was an extenuating situation, whereby the local rav permitted instructing a gentile to kasher meat on Shabbos, presumably with someone Jewish overseeing to guarantee that the process was performed correctly. Since kashering meat on Shabbos involves only a rabbinic prohibition, and one may ask a gentile to perform a rabbinic prohibition on Shabbos to avoid a major financial loss, circumstances may have been such that the local rav permitted this.

We should note that there is an opinion that holds that kashering meat on Shabbos might be prohibited min HaTorah for a different reason. This approach contends that kashering meat, which is in order to remove the blood, is similar to squeezing juice out of fruit or milking a cow, both of which are prohibited because they are extracting one substance from a different substance (Rosh Yosef, Shabbos 75b, based on Rambam, Hilchos Shabbos 8:7, 10). It would appear that the rav in “bubby’s” shtetl was not concerned about this opinion, at least not under the circumstances and the fact that a gentile was performing the kashering.

Salting on Yom Tov?

Let us now examine a different question that we mentioned above:

“May one salt vegetables on Yom Tov?” First, let us analyze the Gemara’s discussion about salting vegetables on Shabbos. The Gemara (Shabbos 108b, as explained by Rashi) prohibits salting a few slices of radish at a time on Shabbos, but permits dipping them in salt, one at a time, as one eats them.

Among rishonim, there are different opinions why it is prohibited to salt several radish slices at one time. Rashi explains that this is a rabbinic injunction, because when the slices are placed in salt they begin to undergo a process that is somewhat similar to what salting does to preserve hides. However, dipping a radish in salt as you eat it is not comparable to that injunction.

A second approach to explain why we may not salt radishes on Shabbos is because it looks like you are pickling foods on Shabbos. This is prohibited, because it is considered miderabbanan as a type of cooking on Shabbos (Rambam, Hilchos Shabbos 23:10).

A third approach

We find yet a third approach among the rishonim why it is prohibited to salt foods heavily on Shabbos. The Semag and the Hagahos Semak prohibit salting food on Shabbos because this is considered maaseh chol, an activity that is not in the spirit of Shabbos.

The Rambam, who understands that salting vegetables is prohibited as a type of cooking miderabbanan, needs to explain why pickling is more stringent than cooking directly in the sun, which is permitted on Shabbos (see Shabbos 39a; Shu”t Noda Biyehudah 2: Orach Chayim #23; Shaarei Teshuvah 318:3). It would seem that the difference is that pickling and salting are common food preparation procedures, and were therefore treated more strictly than cooking in the sun, which is not normally done (Nimla Tal, Me’abeid, note 16).

Other veggies

The halachic authorities rule that, although the Gemara mentions specifically that it is prohibited to salt radishes, the law applies to any other vegetable that would commonly be processed or prepared by salting (Taz, Orach Chayim 321:2). Thus, the same prohibition would certainly apply to onions or cucumbers (see Shu”t Shevus Yaakov 2:12).

Ramifications of a dispute

There are several applications in which the dispute among the rishonim as to why one may not salt vegetables on Shabbos results in differences in practical halachah. According to the Rambam, one may not submerge vegetables in vinegar on Shabbos; this would also violate, miderabbanan, the prohibition of cooking on Shabbos (Pri Megadim, Mishbetzos Zahav 321:3). However, according to Rashi, this should be permitted, since placing vegetables into vinegar is not comparable to salting leather (Nimla Tal, Meleches Me’abeid, note 16).

Wine and vinegar blend?

May one mix wine and vinegar on Shabbos? According to Rashi, this is certainly permitted. The Taz (321:3) prohibits it, based on the Rambam, but the Aruch Hashulchan (321:34) disagrees, ruling that pickling is considered comparable to cooking only when pickling a solid item like meat, fish or vegetables, but not when mixing together two liquids.

Not worth its salt

Here is another case that might be dependent on the dispute among rishonim why one may not salt radishes on Shabbos. One has a vegetable that is not usually salted, and one wants to put it in salt on Shabbos and leave it there in order to preserve it. According to the Semag and Rashi, this should be prohibited, either because it is comparable to me’abeid miderabbanan or because it is uvda de’chol. However, according to the Rambam, this might be permitted, because it is not considered a type of cooking, and the rule of ein me’abeid ba’ochalin has no exceptions. In halachic conclusion on this question, the Graz (321:2) prohibits preserving a vegetable in salt on Shabbos, even when it is not usually eaten or preserved this way.

Salting veggies on Yom Tov

One of our opening questions was whether the rabbinic prohibition not to salt radishes and other vegetables applies on Yom Tov, just as it applies on Shabbos. This question is dependent on the dispute between the rishonim that we just raised. According to Rashi, that the prohibition is because it is comparable to tanning, since the melachah of me’abeid is prohibited on Yom Tov, it should similarly be prohibited to salt vegetables on Yom Tov. However, according to the Rambam that the prohibition of salting vegetables on Shabbos is because it is a form of cooking, it should be permitted on Yom Tov, just as cooking is. (The dispute among authorities in this matter is recorded in the Rema, Orach Chayim 510:7).

How do we rule?

Within this dispute among rishonim concerning why one may not salt radishes on Shabbos, what is the halachic conclusion? The Shulchan Aruch, in Orach Chayim 321:2, quotes Rashi’s reason, and yet, in 321:3, he quotes the Rambam’s opinion prohibiting salting radishes, because it is like cooking. It appears that he ruled to be strict and follow the chumros of both opinions. Thus, it would appear that one should follow the stringent approach in the different cases that we have mentioned. This conclusion is consistent with the various rulings of the different acharonim (Pri Megadim, Mishbetzos Zahav 321:3; Mishnah Berurah 321:15; Gra”z 321:2).

Saltwater at the Seder

Let us now examine a different question that we mentioned above:

“If we forgot to prepare saltwater for the Seder, may we make it on Yom Tov? Does it make any difference this year, when the first night of Pesach falls on Shabbos?”

To answer this question, we first need to examine the appropriate passage of Gemara. The Mishnah (Shabbos 108a), as explained by the Gemara (108b), says as follows:

One may not make a large quantity of saltwater on Shabbos, but one may make a small quantity of saltwater, dip your bread into it or add it to your cooked food. Rabbi Yosi disagrees, prohibiting making even a small amount of saltwater on Shabbos.

To answer the question whether one may make saltwater for the Seder on Shabbos, we need to answer two questions:

Do we rule according to Rabbi Yosi or according to the first tanna?

What is considered a “small quantity” of saltwater that the first tanna permits?

How do we rule?

The Gemara in Eiruvin (14b) rules according to the first tanna, and this is the halachic conclusion of virtually all authorities (Rif, Rabbeinu Chananel, Tosafos, Rambam, Semag, Rosh, Tur and Shulchan Aruch. However, the Semak quotes some authorities who ruled according to Rabbi Yosi.)

What is considered a “small quantity” of saltwater that the first tanna permits?

The Ran explains that the amount of saltwater one needs for the dipping of the coming meal. Thus, according to his conclusion, one may make saltwater on Shabbos prior to the start of the Seder, but only as much as one thinks one will need for the one Seder. After Shabbos, one will have to make more saltwater for the second Seder.

Salting snow

And now, time for our last opening question: “May one spread salt outside on Shabbos so that people do not slip?”

Assuming that there is an eruv that permits carrying outside, I see no evidence that there is anything prohibited about spreading salt on the ground to melt the ice. It is therefore permitted. I subsequently discovered that several contemporary authors concur with this conclusion (Shemiras Shabbos Kehilchasah; Orchos Shabbos).

In conclusion

All of the 39 melachos are derived from what was done when building the mishkan. In this case, tanning hides was a necessary step in building the mishkan, and our question is to what extent is salting food comparable to salting and tanning hides.

Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos in order to provide a day of rest. This is incorrect, he points out, because the Torah does not prohibit doing avodah, which connotes hard work, but melachah, which implies purpose and accomplishment. The goal of Shabbos is to emphasize Hashem’s rule as the focus of creation by refraining from our own creative acts (Hirsch Commentary, Shemos 20:11). By refraining from melachah for one day a week, we acknowledge the true Builder of the world and all that it contains.

* It is generally accepted that the author of this commentary to Menachos is not the Rashba, as once thought, but a different rishon.

 

The Halachos of Borrowing

 

Question: Shattered Shield

“A friend left for a few weeks, leaving me the keys for his car and permission to use it whenever I wanted. The first morning, when I went to get the car, I discovered that the windshield had been shattered by a stone or brick. Am I obligated to replace the windshield?”

Introduction:

Answering this question requires that we understand the legal responsibilities of someone who borrows an item. As always, the purpose of our article is not to offer a definitive halachic ruling, but to present background and knowledge. In this instance, as in all cases, a person should address any particular question to his rav or posek. And, since there are probably two parties involved, to resolve a matter amicably, I suggest that the two of you agree on a specific rav or dayan whose expertise you both recognize.

The Basics:

In parshas Mishpatim, the Torah presents three types of shomrim, people who assume responsibility for other people’s property. The Torah shebe’al peh, our Oral Torah, explains that these are the three categories:

  1. A shomer chinam takes care of someone else’s property without any compensation and has no right to use the item. He is responsible to pay if the item was damaged due to his negligence, or if he used it without permission. If there are factual issues that are unresolved, such as determining whether the shomer was negligent, the owner may insist that the shomer swear a shevuah, an oath, to exonerate himself from liability. This last rule, that the owner is not required to accept the shomer’s version of what happened without corroborating evidence, is true also in regard to the other shomrim that we will soon discuss.

In recent history, batei din have been reticent about requiring someone to swear an oath, and therefore a beis din might effect a financial compromise in lieu of an oath.

  1. A shomer sachar is one who takes care of an item and receives financial benefit. He is liable if the item is lost or stolen, but he is not obligated if it became lost or damaged for some reason beyond his control, which includes, for example, armed robbery.
  2. A sho’eil borrows an item, receiving benefit without providing the owner with any compensation. As stated in the Mishnah (Bava Metzia 93a), a sho’eil is obligated to pay for any damage that happens to the item, even if it is completely beyond his control. The obvious reason why this is so is that since the sho’eil received benefit from the item gratis, he must make sure that he returns what he received, paying its full value, if need be.

Notwithstanding this obligation on the part of the borrower, there are two exceptional situations where the item is damaged, stolen or destroyed and the sho’eil is not obligated to make compensation. These are:

  1. Meisah machmas melacha, literally, the item or animal “died” or became damaged in some way as a result of the work for which it was borrowed. We will soon explain the rationale for this. In addition, the borrower is exempt only when he used the item without abusing it.
  2. Be’alav imo, the owner of the borrowed item was in the employ of the borrower at the time of the loan (Mishnah, Bava Metzia 94a).

Verification

As noted above, should there be a question about verifying the facts, whether the circumstances were indeed a case of meisah machmas melacha, the lender may demand that the borrower swear an oath to verify them. Also, if the event occurred in a time and place that there should have been eyewitnesses, the lender may insist that the borrower produce witnesses to verify what happened, rather than be satisfied with an oath.

In this context, the Gemara records the following din Torah (Bava Metzia 97a): A man borrowed a bucket that broke while he was using it. The two parties appeared before Rav Papa to adjudicate whether the borrower was obligated to pay. Rav Papa ruled that this is considered meisah machmas melacha. However, he first asked the borrower to produce witnesses that he did not use the bucket in an unusual fashion, for if he used it in an unusual way, the exemption of meisah machmas melacha would not apply.

Kinyan

There is a basic dispute among the rishonim concerning whether a shomer becomes liable as soon as he agrees to the arrangement (Rosh, Bava Metzia 8:15), or only when he makes a kinyan on the borrowed item (Raavad, quoted by Shitah Mekubetzes, Bava Metzia 98b). Kinyan refers to the act that effects loans, rentals, transfers of ownership of property and other legal agreements. In our situation, this question arises in the event that the borrowed item was left in the shomer’s care, but he never lifted, moved or did anything else that would legally make the item “his.” Some rishonim hold that the shomer becomes responsible only when he performs a kinyan, whereas others hold that he becomes responsible even when no kinyan is performed.

Among the halachic authorities, this matter is disputed by the Shulchan Aruch and the Rema, the latter ruling that a shomer becomes legally responsible as soon as he agrees to the arrangement (Choshen Mishpat 340:4).

In the case of an automobile, driving the car off when someone borrowed it constitutes a kinyan. According to some rishonim, taking possession of the keys is also a kinyan, but this is a minority opinion (see Rashi, Pesachim 4a, as explained by Korban Nesanel).

With this background, let us now examine our opening question:

Shattered Shield

“A friend left for a few weeks, leaving me the keys for his car and permission to use it whenever I wanted. The first morning, when I went to get the car, I discovered that the windshield had been shattered by a stone or brick. Am I obligated to replace the windshield?”

The damage caused here had nothing to do with the sho’eil, but, as we explained before, he is obligated to make compensation even then. However, according to the opinion that a shomer is not obligated until he makes a kinyan on the item, if the borrower did not drive the car, he has not yet become obligated. Thus, he would be exempt from paying for the damages, according to that opinion, which is the way many halachic authorities rule.

Establishing a condition

It is important to note that the system explained above regarding the responsibility of shomrim applies only when the two parties did not establish their own policy. However, if a sho’eil tells the owner that he is not assuming responsibility and the owner agrees, or if a shomer chinam assumes total responsibility, or if any other arrangement is made that both parties accept, that agreement will govern what liability exists (Mishnah, Bava Metzia 94a). Similarly, an agreement may also be made to eliminate any obligation on the shomer to swear an oath to verify the facts (ibid.).

Therefore, if a shomer chinam wants to avoid any potential liability, either to pay or to swear an oath, he should tell the owner that he will gladly watch the item, but that he is assuming no responsibility for the item, even should he be negligent, and that the owner must relinquish his right to have the shomer swear to prove his innocence. A sho’eil may make a similar condition before he borrows the item. However, bear in mind that if the sho’eil does make such a precondition, the owner may refuse to lend him the item. Since the sho’eil is aware of this, he is usually reluctant to make such a precondition. Our article is discussing the halacha that applies when they do not make their own arrangements.

Be’alav imo and Meisah machmas melacha

We mentioned above that a sho’eil is obligated to pay for all damages that happen to the item he borrowed, with the exception of two cases: meisah machmas melacha and be’alav imo. It is interesting to note that these two exemptions are, in one way, complete opposites. The exemption of be’alav imo is expressly mentioned in the Torah and thus fits the halachic category that we call gezeiras hakasuv. In this case, this means that attempts to explain the reason for this law will not affect the halacha. (Although the commentaries present many reasons for be’alav imo, these reasons will not change the halacha – they may qualify under the general heading of lo darshinan ta’ama dikra, we do not derive halachic conclusions based on reasons for mitzvos. Because of space considerations, we will not discuss in this article the topic of darshinan ta’ama dikra and how it relates to be’alav imo.)

On the other hand, since the exemption of meisah machmas melacha is never mentioned in the Torah shebiksav, we assume that the basis for this law is logic. Chazal understood that the sho’eil is not obligated to pay for an item that was damaged as a result of expected use.

The question is why this rule is true when the Torah obligates the borrower to replace the item, even should it be destroyed by a complete accident over which he had no control. The Gemara, when explaining this idea, states very succinctly that the animal was not borrowed for it to have a vacation. There are several ways to understand this statement of the Gemara. I will now present four of them.

Lender’s negligence

Among the halachic authorities, we find several approaches to explain the phenomenon of meisah machmas melacha, and there are differences in practical halacha that result. The Ramban explains that the reason for meisah machmas melacha is because the lender is considered negligent. He should have realized that his object or animal could not withstand the work for which he was lending it! Since he did not check this out, he has no claim on the borrower to replace it (Ramban, Bava Metzia 96b, quoted by Beis Yosef, Choshen Mishpat 340). For ease of presentation, we will refer to this approach as lender’s negligence.

Wear and tear

A second approach is that the person lending an item knows that there will be a certain amount of wear and tear, and he does not expect to be reimbursed for this (Nimukei Yosef, Rosh as explained by Machaneh Efrayim, Hilchos She’eilah Upikadon #4). If the animal or item could not withstand normal use, this is an extension of the wear-and-tear principle.

Mechilas hamash’il

A third reason is that when lending an item, one knows that the item can become damaged while it is being used, and this is included in the mechilah implied by the loan. This approach contends that a sho’eil is exempt when damage occurs as a result of the loan, even when it cannot be attributed to wear and tear. For example, the borrower told the owner that his intent is to take a trip to a certain place, which he did, and while there the animal was stolen (see Ramah, quoted by Tur, Choshen Mishpat #340). Since the owner knew the animal was being borrowed to take it to a specific place, any damage that happens because of that place is included as meisah machmas melacha, according to this third opinion. I will henceforth refer to this approach as mechilas hamash’il, meaning that, in advance, the lender forgives damage that occurs while the item is being used.

Of the three opinions cited so far, only the third exempts the sho’eil from paying when an animal is stolen. The previous two opinions both contend that meisah machmas melacha can include only damage that was a result of normal, expected work. According to the reason of lender’s negligence, the owner was not negligent if the animal was stolen, and, according to the wear and tear reason, the loss from theft was not a result of use.

Mekach ta’us

A fourth approach, mentioned in acharonim, is that when someone borrows an item or animal, he accepts responsibility only because he assumes that it can withstand the work for which he borrowed it. If it is incapable of performing that task, then we assume the borrower never assumed responsibility (Machaneh Efrayim, Hilchos She’eilah Upikadon #4). I will call this approach mekach ta’us, that the implied “contract” of responsibility was never agreed to by both parties.

To simplify our four approaches, they are:

  1. Lender’s negligence: The lender was negligent in not checking the item’s condition before lending it.
  2. Wear and tear: Lending includes the assumption that a borrower is not responsible for normal use.
  3. Mechilas hamash’il: The lender assumes responsibility for damage that resulted from the loan.
  4. Mekach ta’us: The borrower never assumed this responsibility.

Practical differences

Are there practical differences that result from this dispute? Indeed, there are many. Here is an early example: The Tur (Choshen Mishpat 340) quotes a dispute between the early rishonim, the Ramah (Rabbi Meir Abulafia, an early rishon living in Spain, not to be confused with Rabbi Moshe Isserlis, the Rema, who lived in Poland over three hundred years later, whose notes to the Shulchan Aruch we will be quoting shortly) and the Rosh, concerning the following case: Someone borrowed an animal for a specific trip, and the animal was stolen on the trip by armed robbers. The Ramah rules that this is considered meisah machmas melacha and the borrower is not obligated to pay, whereas the Rosh rules that it is not meisah machmas melacha and he is obligated to pay.

A careful study of the way the Tur presents the dispute implies that the Ramah assumes that the lender was mocheil any damages expected to happen as part of the lending (approach #3 above, mechilas hamash’il), whereas the Rosh assumes that the lender is mocheil only on expected wear and tear (approach #2 above, wear and tear). The Ramah appears to understand that any damage that results from the loan is included under meisah machmas melacha. (The approach to explain this dispute is presented by the Machaneh Efrayim.)

How do we rule?

The Shulchan Aruch (Choshen Mishpat 340:3) rules according to the Ramah: When the animal was stolen by armed robbers during the time that it was borrowed, the borrower is exempt from making compensation, because it is considered a case of meisah machmas melacha.

On the other hand, the Rema cites the Rosh’s opinion. The Shach agrees with the halachic conclusion of the Rema in this case, because he feels that the Ramban’s approach (#1 above, which I called lender’s negligence) should be followed, and this approach is in agreement with the Rema’s position in this case.

Playing cat and mouse

The following interesting case is mentioned in the Gemara (Bava Metzia 97a): Someone’s house was infested with mice, and the owner wanted to use an inexpensive, safe and environmentally-friendly way to eliminate the problem. He borrowed a neighbor’s cat to “exterminate” the mice.

Strength in numbers

The Gemara tells us that a very unusual thing happened. The mice gathered together and launched a counterattack on the cat, killing it! The question now was whether the borrower was required to compensate the lender for the deceased cat, and the matter became the subject of one of the most famous dinei Torah in history, presided over by Rav Ashi. The conclusion was that the borrower was exempt from paying, because this is a case of meisah machmas melacha.

Contemporary case

In a contemporary work, I found discussion about the following case: Reuven borrowed a car for a day. While he was driving the car, a child darted into the street in front of the car. Reuven braked, fortunately succeeding in avoiding striking the child. However, a truck behind him was following too closely. The truck hit the car, severely damaging it, and then escaped without providing any identifying information (hit and run) – leaving Reuven with a damaged, borrowed car. To complicate matters, the owner was not carrying collision insurance that would cover the damage. Is Reuven obligated to pay the owner for the damage?

According to the Ramban, approach #1, that meisah machmas melacha is exempt because the lender was negligent, Reuven is certainly obligated to pay. Although the damage was completely accidental, a sho’eil is obligated to compensate for accidental damage that happened while the item is in his care. Meisah machmas melacha does not apply, according to this approach, because the automobile was not deficient in any way.

The same halacha is true according to the Rosh (approach #2), who contends that the law of meisah machmas melacha exempts only wear and tear, which was not the cause for the damage. Furthermore, according to the fourth approach  (mekach ta’us) Reuven is obligated, again, because the automobile was in fine condition when he borrowed it.

However, what is the law according to the third approach, that I called mechilas hamash’il? This approach contends that an owner is mocheil any damage that might result from the loan. A contemporary author that I saw ruled that, according to this opinion, the sho’eil would be exempt from paying in this instance, since the damage happened as a result of the loan (Mishpetei HaTorah 1:35).

Conclusion

As we can see, the laws regarding responsibility for items are very complex and sometimes lead to surprising conclusions. In general, we should be vigilant when we assume responsibility for items belonging to others. A Torah Jew observes his contractual commitments with trust and faith. He certainly realizes that Hashem’s Torah is all-encompassing and directs every aspect of his life, certainly the details of his financial dealings.