The Bankrupt Borrower

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

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

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

Responsibilities of a Borrower

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

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

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

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

Systematic Collection

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

Gomel discovered that the halachos governing who collects first are extremely complicated. He also discovered that in a case where a person’s financial resources are insufficient to cover his debts, halachah views the priorities of who receives, and how much, very differently from civil law. Here are some basic ideas.

The Gemara works with a concept called shi’bud, by which most debts are automatically secured with property that the debtor owned at the time he created the obligation. Under this system, if a debtor defaulted on an obligation, a creditor who exhausted all means of collecting directly from the debtor’s holdings could collect these secured debts from real properties that the debtor had owned at the time of the loan and subsequently sold. The system in place allowed potential purchasers to find out whether a property had a lien on it prior to purchasing it. (This would loosely parallel what we call today a “title search,” performed to ascertain ownership of a property and whether there are any liens on it.) The potential lien on all the properties of a debtor encouraged people to pay their debts so that they could sell their properties more easily, and also enabled people to borrow investment capital.

Who Collects First?

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

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

Why did the halachah change?

Rav Moshe Feinstein explains that since a creditor does not expect to be able to collect from properties that have been sold by the debtor, he does not acquire shi’bud on them (Shu”t Igros Moshe, Choshen Mishpat 2:62).

Bad Talmudic Debts

When there is no shi’bud claim on any properties, under the Gemara’s system, the outstanding creditors collect, but not in proportion to the amount that each is owed. According to most authorities, we still follow the FIFO (first in, first out) rule of paying the earliest claim first, although others rule that everyone is paid equally, according to the availability of resources (Shulchan Aruch, Choshen Mishpat 104:13 and Sm”a).

The latter approach also results in a major difference between the Gemara’s system and the modern approach. Under the modern approach, the court calculates the ratio of available resources to debt, and pays all creditors a percentage of their debt based on the result. According to halachah, if someone owes $500,000 to 50 different people but has only $5,000 with which to pay, and each individual is owed at least $100, then they each collect $100, regardless of the actual amount that each one is owed.

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

Dina Demalchusa Dina

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

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

Din Melech

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

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

Democratic Taxes

Although the early authorities discuss dina demalchusa dina primarily in terms of the rights of a king, most later authorities understand that this halachic power exists, equally, in a democracy (see Shu”t Yechaveh Daas 5:63).

Gomel discovered that the vast majority of halachic authorities regard dina demalchusa dina as a Torah-mandated concept (see Shu”t Dvar Avraham 1:1; Avnei Meluim 28:2; Shu”t Chasam Sofer, Yoreh Deah #314), although  a minority opinion contends that dina demalchusa dina was introduced by Chazal (Beis Shemuel, 28:3).

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

Traffic and Safety Regulations

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

No Government Influence

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

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

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

Government Influence

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

What about Bankruptcy?

As I wrote above, the Gemara and the Shulchan Aruch do not mention the concept of bankruptcy. Gomel began to research if anyone discusses whether halachah recognizes the laws of bankruptcy, under the laws of dina demalchusa dina. Indeed, he discovered a dispute among great twentieth-century authorities regarding whether dina demalchusa dina applies to the laws of bankruptcy. In a responsum, Rav Moshe Feinstein rules that dina demalchusa dina applies only to matters in which the government takes an interest, because they may affect the stability of the country. For example, if the country does not have sound markets, this could create problems that the government wants to avoid. Therefore, the government has a halachic right under dina demalchusa dina to insist that its laws governing stable markets are followed.

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

In the case brought before Rav Moshe, a company had gone bankrupt, and the directors had paid one of its creditors, in violation of the bankruptcy rulings. The question was whether the individual was required to return the money that he had been paid because of the lahachah of dina demalchusa dina.

Rav Moshe ruled that, if the company had already filed for bankruptcy when this money was paid, the creditor is halachically required to return the money. This is because dina demalchusa dina establishes the regulations of how a person or entity that has filed for bankruptcy may pay its debts.

On the other hand, we find responsa from two prominent European authorities, Rav Yitzchak Weiss (Shu”t Minchas Yitzchak 3:134), who was then the av beis din of Manchester (and later the Rosh Av Beis Din of the Eidah HaChareidis in Yerushalayim), and from Rav Yaakov Breisch of Zurich, Switzerland (Shu”t Chelkas Yaakov 3:160). (It is interesting to note that these two great poskim were mechutanim.) From the limited description of the cases that each responsum contains, it seems that they were asked about the same situation:

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

Subsequently, Reuven sued Shimon in beis din for the entire loan. Shimon contended that he was not required to pay Reuven more than the thirty cents to the dollar, as per the bankruptcy court’s ruling. Reuven, the creditor, claimed that he had never forgiven any part of the loan. He argued that he did not protest the bankruptcy proceedings for several reasons, among them that he was unaware that a personal loan without interest is included in bankruptcy proceedings.

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

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

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

At this point, Gomel sat down to discuss with Rav Chacham whether his own debtor could claim protection for the balance of his loan, since he had declared bankruptcy. According to the Chelkas Yaakov, the Minchas Yitzchak, and other authorities, a debtor has no basis for claiming bankruptcy protection. On the other hand, in certain circumstances, Rav Moshe might contend that the debtor need not repay more than the court has ruled.

Conclusion

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




Being a Good Guest

The Halachic Etiquette when Visiting Someone’s House

Many people answered the e-mail I sent out last week including some of my perspectives on the current situation. I apologize personally to each of you who responded for not being able to answer the many communications I have received.

Second of all, there are a number of articles on the laws of the Seder, chometz, kitniyos, Yom Tov, the mourning period of the omer, keeping the second day of Yom Tov and other aspects of Pesach on this website. Try using the search words chometz, kitniyos, matzoh, Pesach, sefirah or Yom Tov for the appropriate topics.

Third of all, I planned this article for the week of Rosh
Chodesh
Nisan way before I realized that most of us will probably not be
able to be guests at other people’s homes for Pesach. The article still has a
lot of value.

Since many of us will be guests at other people’s houses for
the Seder or for some other time during Pesach, it seems like an opportune time
to discuss the laws pertaining to being a guest in someone else’s house.

Some of these rules are fairly self-explanatory. For
example, a guest should not bring another guest with him (Bava Basra 98b).

A guest should feel that whatever the host serves and
prepares is in his honor. The Gemara explains, “What does a good
guest say? How hard the host worked for me! How much meat he brought! How much
wine he served! How many dainty dishes he prepared! And all this he prepared
for me!”

On the other hand, what does a bad guest say? “Did the
host work for me? I ate only one roll and one piece of meat and drank only one
cup of wine. All the work he did was done for his wife and children!”

A STRANGE CONVERSATION

In the context of learning proper etiquette, the Gemara (Pesachim
86b) records the following unusual story. Rav Huna the son of Rav Nosson
visited the house of Rav Nachman bar Yitzchak, where apparently Rav Huna was
not known. His hosts asked Rav Huna, “What is your name,” to which he replied
“Rav Huna.” They then offered him to sit on the couch, although everyone else
was sitting either on the floor or on benches, and the couch was reserved for
special guests. Rav Huna did not decline the honor and sat on the couch.
Subsequently, they brought him a kiddush-sized cup full of wine, which
he immediately accepted and drank in front of them, but he paused once in the
middle of drinking.

Rav Nachman’s household, which included talmidei
chachamim
, felt that Rav Huna’s responses to their invitations were
inappropriate. They proceeded to pepper him with questions about his behavior.
(Since he had identified himself as a talmid chacham, all of his acts
could teach a halachic lesson. However, they felt that he had not acted
correctly; it was therefore appropriate to ask him to explain his behavior.)
The conversation that ensued is the source of many halachos.

“Why did you introduce yourself as ‘Rav Huna?’” they first
asked. Is this an appropriate way to identify oneself?

Rav Huna responded: “That is my name.”

“Why did you sit on the couch, when we offered?” They felt
that it would have been proper for him to refuse the honor, politely, and to
sit on the floor with everyone else (Tosafos).

Rav Huna retorted by quoting the now famous halachic
adage, “Whatever the host asks you to do, you should do (see Mesechta Derech
Eretz Rabbah
6:1).”

The hosts continued, “When we offered you the cup, why did
you accept it the first time we offered it?”

To which Rav Huna replied, “One may refuse a small person,
but one should not refuse the request of a great person.”

The hosts then inquired, “Why did you drink the small cup of
wine we gave you in two gulps, rather than drink it all at once?”

Rav Huna countered, “The earlier authorities taught us that
only a guzzler drinks a whole cup of wine at once, and that arrogant people
drink a cup with three sips. The proper way to drink a cup of wine is in two
swallows (Mesechta Derech Eretz Rabbah 8).”

Finally, his hosts asked, “Why did you not turn your face
when drinking?” in their opinion, a talmid chacham should not eat or
drink in the presence of many people (Gemara and Rashi, Bechoros 44b).
To this Rav Huna replied that only a bride should be so modest; for anyone
else, this is not considered modesty (Rashi, Pesachim 86b).

WHAT DID THEY MEAN?

In the course of this perplexing conversation, Rav Huna
taught his hosts (and us) several halachos germane to proper etiquette
that need to be understood properly. We will now dissect the conversation
between these scholars to understand its underlying lessons.

1. He identified himself as “Rav Huna.” Isn’t this a
conceited way of introducing oneself? Why would Rav Huna, a great Torah scholar
and tzadik, have done this?

The source of this halacha (Nedarim 62a) reads
as follows:

Rava pointed out that two verses seem to contradict one
another. In one verse, Ovadiah says to Eliyahu, Your servant has feared
Hashem from his youth
(Melachim I 18:12), implying that it is appropriate
to make a true statement about one’s spiritual accomplishments. On the other
hand, Mishlei (27:2) declares, Someone else should praise you, but
not your mouth
. Rava explains that the pasuk in Mishlei applies
when there are people present who can notify others that this person is a talmid
chacham
. Since the members of Rav Nachman’s household were unaware that Rav
Huna was a talmid chacham, it was appropriate for him to bring this to
their attention (Meiri; Maharsha). By doing to, he receives the benefits
that he deserves, and people will not be punished for treating him
disrespectfully because they did not realize that he is a talmid chacham (Rosh,
Nedarim
62a).

It is noteworthy that when Rav Huna explained why he had
identified himself as Rav Huna, the Gemara quotes him as saying baal
hashem ani
, which Rashi seems to explain as meaning, this was
always my name
. However, this is not the usual way in either Hebrew or
Aramaic of telling someone one’s name or appellation. Alternatively, the words baal
hashem ani
can be interpreted as meaning, I am well known by that name,
which implies that he was a well-known personage, although he was apparently
unknown by the members of Rav Nachman’s household (see Meiri). Thus, he
was responsible to inform them who he was, so that they not treat him
disrespectfully.

WHY NOT SIT ON THE COUCH?

2. The hosts proceeded to inquire about his next act:

“Why did you sit on the couch when we invited you?” Apparently,
they felt that it was inappropriate for him to sit on the couch, and he should
have politely refused the honor. To this inquiry Rav Huna replied, “Whatever
the host asks you to do, you should do.”

Did the hosts indeed want him to sit in the finest seat in
the house, or were they simply being polite? Is the host’s offer genuine, or
does he really prefer that I refuse the offer? It is not unusual to face this
type of predicament.

Rav Huna answers that when the host’s intent is unclear, one
should assume that his offer is sincere and do as he suggests.

There is a clear exception to this rule. When one suspects
that the host cannot afford his offer and is only making it out of
embarrassment, one should not accept his offer. This is referred to as a seudah
she’ainah maspekes lebaalah,
lit., a meal insufficient for its host (Rambam,
Hilchos Teshuvah
4:4; also see Chullin 7b and Rashi).

DO WHAT THE HOST ASKS

Why should one do whatever the host requests?

Here are two interpretations to explain the reason for this
statement of Chazal:

A. A nonpaying guest should do whatever the host asks him to
do, since this is a form of payment for services rendered. In return for free
accommodations, the guest should reciprocate by performing the tasks and
errands the host requests (Bach, Orach Chayim 170).

In a sense, this parallels the modern practice of presenting
the host with a gift. (One can find halachic sources for this practice
in the Sefer Orach Meisharim 18:2.) The gift reciprocates the host’s
kindness. However, the host often prefers different favors, such as
babysitting, rather than a box of chocolates that his waistline can do without,
or an additional bouquet of flowers that will soon wilt. Therefore, one’s
reciprocation can consist of doing appropriate favors for the host.

In a similar vein, if one has the opportunity to reciprocate
hospitality, one should do so (Orach Meisharim 18:2). However, neither
host nor guest may specify in advance that the hosting will be reciprocal
because of concerns of ribbis, prohibited paying and receiving interest
on a loan (Rema, Orach Chayim 170:13), since the one who hosts first
has, in essence, extended his hospitality as a loan to the other!

A DIFFERENT APPROACH

B. Courtesy dictates that a guest in someone’s house should
respect his host and fulfill his requests as master of the house (Levush).
Rav Huna ruled that not honoring the host’s desire to honor his guest
challenges the host’s authority. By sitting on the couch and accepting the
honor, the guest affirms his host’s authority to honor whomever he wishes in
his home.

In many societies, turning down a host’s offer of a cup of
tea or coffee is considered insulting. If one is unaware of local custom, one
should follow Chazal’s instructions as Rav Huna did.

IF THE HOST HAS DIFFERENT KASHRUS STANDARDS

What happens if the host and the guest interpret the laws of
kashrus in different ways? Must the guest follow the host’s request to
join him for a meal?

If the guest follows a stricter halachic opinion than
the host, the guest should apprise the host. The host may not serve the guest
food that does not meet the guest’s standard, unless the food is obviously
something he may not eat (Shach, Yoreh Deah 119:20). For example, if the
guest observes cholov yisroel fully and the host follows the poskim
who permit unsupervised milk when you can assume that it is cow’s milk, the
host may not cook anything that does not meet the guest’s standards without
telling him. However, he may place food on the table that is obviously not cholov
yisroel
. Similarly, if the guest notifies the host that he uses only food
with a specific hechsher, the host may not serve him food that violates
this standard.

Once a halacha-abiding host knows his guest’s
standards, the guest may assume that the host is accommodating his standards
and may eat whatever is served without further questions (Shach, Yoreh Deah
119:20). This is included in Chazal’s adage, whatever the host asks
you to do, you should do,
since it is offensive to question the host’s
standards. Offending people is always halachically reprehensible, and
certainly when they are doing you a favor.

PERSONAL CHUMROS

On the other hand, if the guest has a personal halachic
stringency that he would rather not divulge, he should not violate his chumrah
and he is not required to divulge it (Shaarei Teshuvah 170:6; Ben
Yehoyada
).

Generally, one should be modest when it comes to any chumrah
(Birkei Yosef, Orach Chayim 170:6). One should also always be aware that
taking on personal chumros may not be a good idea, and one should
discuss the matter with a gadol prior to observing a chumrah.
(See the important discussion on this point in Michtav Mei’Eliyahu Volume
3 pg. 294.)

EXCEPT LEAVE

Our editions of the Gemara Pesachim 86b have two Hebrew
words appended to the end of the statement, whatever the host asks you to
do, you should do.
The additional words are, chutz mi’tzei, except
leave,
and therefore the passage reads, whatever the host asks
you to do, you should do, except leave.
It is unclear if these words are an
authentic part of the text; they are not mentioned in Mesechta Derech Eretz,
the source of the original statement. Some authoritative commentators (Meiri)
take exception to it, and boththe Tur andthe Shulchan
Aruch
omit it. The Meiri reports that these words are an incorrect
textual emendation added by scoffers and should be disregarded.

Nevertheless, other authorities (Bach, Magen Avraham, Ben
Yehoyada
) accept these words as part of the text and grapple with different
possible interpretations.

What does this text mean? I found numerous interpretations
of this text, including six different interpretations in one sefer (Ben
Yehoyada
) alone! Several of these approaches assume that performing
whatever the host requests means reciprocating his favors, the first approach I
mentioned above. According to these approaches, the words chutz mitzei mean
that the guest is not expected to perform any inappropriate activity for the
host. This would include the host asking the guest to run an errand for him
outside the house. Since it is unacceptable to ask someone to run an errand in
a city with which he or she is unfamiliar, the guest may refrain from doing so
(Bach, Orach Chayim 170).

Nevertheless, if the host requests the guest to do something
that he would ordinarily not do because it is beneath his dignity, he should
perform it anyway (Birkei Yosef, Orach Chayim 170:5).

THE STRANGE CONVERSATION

We now revert to explaining the original conversation that
transpired between Rav Huna and his hosts.

3. The hosts continued, “When we offered you the cup, why
did you accept it the first time we offered it?”

To which Rav Huna replied, “One may refuse a small person,
but one should not refuse the request of a great person.”

THE INCONSISTENT ANGELS

This particular rule of etiquette is based on a passage in parshas
Vayeira
. When Avraham Avinu invited the angels to dinner, they immediately
accepted, whereas when his nephew Lot invited them, they initially turned him
down. Only after he begged them repeatedly did they accept his invitation (Breishis
15:1-5, 16:1-3). Why did they accept Avraham’s invitation immediately and
initially turn down Lot’s offer? The Gemara (Bava Metzia 86b)
answers because of this rule — one may refuse a small person, but one
should not refuse a great person.

This halacha has ramifications for other, non-guest
situations. When someone is asked to lead the services in shul (usually
called to daven before the amud), he should initially decline the offer,
as a sign of humility. However, if a great person, such as the rav of
the shul, asks one to lead the services, one should immediately agree.

TWO GULPS?

4. The hosts now inquired, “Why did you drink the small cup
of wine we gave you in two gulps, rather than drink it all at once?”

Rav Huna countered, “The earlier authorities taught us that
only a guzzler drinks a whole cup of wine at once, and arrogant people drink a
cup with three sips. The proper way to drink a cup of wine is in two swallows”
(Mesechta Derech Eretz Rabbah 8).

A reviis-size cup of wine, which is about three
ounces, should be drunk in two sips; not all at once, and not in more than two
sips. It is preferable to drink about half the cup each time, rather than to
drink most of it and leave just a small sip for afterwards (Magen Avraham
170:12). If the cup is smaller, the wine is very sweet, or the person drinking
is very obese, one may drink the entire cup at one time (Pesachim 86b,
as understood by Magen Avraham 170:13). When drinking beer, one may
drink a greater amount in each gulp, since beer is less intoxicating than wine;
and this is certainly true when drinking non-alcoholic beverages (Magen
Avraham
170:13). On the other hand, if the drink is very strong, one may
drink it much more slowly (Aruch Hashulchan 170:9). Thus, it is
appropriate to take small sips of whiskey or other strongly intoxicating
beverages.

TURNING YOUR FACE?

5. Finally, his hosts asked, “Why did you not turn your face
when drinking?” To this, Rav Huna replied that only a bride should be so
modest. What is this exchange about?

A talmid chacham should not eat or drink in the
presence of many people (Gemara and Rashi, Bechoros 44b). The
hosts felt that Rav Huna should not have eaten in their presence without
turning to the side, so that they could not see him eat. Rav Huna held that the
halacha that a talmid chacham should not eat or drink in the
presence of many people does not apply when one is eating a meal together with
other people. However, a bride should not eat in a way that other people see
her eating, even if they are all participating together in a festive meal (Tosafos,
Bechoros
44b s.v. ve’ein). Therefore, Rav Huna replied that only a
bride should be so modest; for anyone else, this is not considered modesty (Rashi,
Pesachim 86b).

The halacha is that one should not eat in the street
or marketplace (Kiddushin 40b); on the other hand, one should not stare
at someone who is eating or at the food that he is eating, because it
embarrasses him or her (Rambam, Hilchos Brachos 7:6; Shulchan Aruch,
Orach Chayim
170:4).

As we see, Chazal had tremendous concern that a
person act appropriately in all circumstances, and even more so when we are a
guest in someone else’s home. Certainly, these are lessons that we should always
apply in our daily lives.




Paying Workers on Time – The Mitzvah of “Bal Talin”

In honor of Yaakov Avinu’s contractual dealings with his
father-in-law, I present:

In parshas Ki Seitzei, the Torah instructs, “Beyomo
sitein secharo ve’lo sa’avor alav hashemesh –
On that day [the day the work
was completed] you should pay his wage, and the sun shall not set [without him
receiving payment]” (Devarim 24:15). The Torah mentions two mitzvos; a
positive mitzvah (mitzvas aseh) and a negative mitzvah (mitzvas lo
sa’aseh
) to guarantee that a worker is paid before sunset of the day
that he performed his job. Thus, someone who pays his worker on time fulfills a
positive mitzvah, whereas if he neglects to pay him on time and the worker
demands payment, he has transgressed a lo sa’aseh.

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

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

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

WHAT TYPE OF WORK IS INCLUDED IN THIS MITZVAH?

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

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

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

EXAMPLE:

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

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

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

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

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

RENTALS

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

EXAMPLE:

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

SMALL WAGES AND SMALL EMPLOYEES

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

EXAMPLE:

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

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

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

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

EXAMPLE:   

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

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

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

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

WHAT IS THE HALACHA IF AN AGENT HIRED THE WORKERS?

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

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

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

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

The owner is responsible for having his workers paid on
time. If he will be absent when his workers finish, he must make provisions to
pay them on time (Ahavas Chesed 1:10:12).

EXAMPLE:

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

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

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

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

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

(1) Is he required to pay his contractors from his own
personal money, or can he assume that, since his business is incorporated, he
is obligated to pay them only from his business account?

(2) How much is the business required to liquidate to
pay the contractors?

(3) How aggressively is the business required to
collect its receivables?

(4) Is he required to sell merchandise at a lower
price? At a loss?

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

According to Biur Halacha (242:1), if one does
not have enough money both to pay wages due on Friday and to make Shabbos, one
is required to pay the wages, even if, as a result, he will not have money for
Shabbos.

Similarly, if sunset is approaching and the owner has
not yet paid wages that are due today, he must attend to paying his workers, if
they are demanding payment, even if the result is that he is unable to daven
mincha.

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

It is wrong for the owner to delay paying the worker,
forcing him to repeatedly return for payment. These actions violate the mitzvah
taught by the pasuk in Mishlei, “Al tomar le’rei’acha lech
vashoov umachar etein ve’yeish itach –
Do not tell your neighbor ‘Go and
come back, I’ll pay you tomorrow,’ when you have [the money] with you” (Mishlei
3:28).

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

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

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

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

MAY THE OWNER OFFER
COMPENSATION FOR DELAYED PAYMENT?

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

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

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

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

SUGGESTION:

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

If this was not stipulated in advance, and a dispute
develops, discuss with a rav or posek how to proceed. Bear in
mind that if the worker is demanding payment and the contracting party is
wrong, he might end up violating a serious Torah prohibition by not paying on
time.

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




Taking Care of the Ill — The Mitzvah of Bikur Cholim Part II

Question #1: Not a doctor

“If the mitzvah of bikur cholim is to see that
the patient’s needs are taken care of, what am I accomplishing by visiting him in
the hospital? I am not a physician, and my inquiring about the patient’s
medical care is probably intrusive and counter-productive.”

Question #2: Is there a rabbi in the house?

“Why do people ask tzaddikim to pray on behalf of
someone who is ill?”

Question #3: Visiting alone

“I was told not to visit a sick person by myself. Is there a
halachic basis for this practice?”

Introduction

The Gemara (Sotah 14a) teaches that we have a mitzvah
to follow in Hashem’s
ways, and that this mitzvah includes the requirement to take care of
the needs of the ill. “Rabbi Chama the son of Rabbi Chanina said, ‘How are we
to understand the words of the Torah: “You should follow Hashem, your
G-d.” How is it possible for a human being to follow the Holy One, blessed is
He, when the verse states that ‘Hashem, your G-d, is a consuming fire?’
Rather, it means that we are to emulate Hashem’s attributes – just as he
dresses the naked… takes care of the sick… consoles the mourners, and buries
the dead, so should we.

Based on a pasuk in parshas Korach, the Gemara
(Nedarim 39b) teaches: “There is an allusion to the mitzvah of bikur
cholim
in the Torah: When Moshe declares ‘If these people (Korach’s party)
will die like most people do, and the destiny of most people will happen to
them, then Hashem did not send me.’ How do we see an allusion to the mitzvah
of bikur cholim in the pasuk? Moshe declared: If these people
will die like most people do – if they will become ill and bedridden and people
will come to inquire about their needs – the people will say ‘Hashem did
not send me.’” Thus, the Gemara cites this week’s parsha as one
of the direct sources in the Torah for the mitzvah of bikur cholim.

Last week, our article was on the topic of bikur cholim
and discussed many of its basic halachos. This article includes a review
of some of the basic laws and concepts of this very special mitzvah, but
will primarily cover details that were not discussed in the previous article.

Every community should have an organization devoted to the
needs of the sick, and it is a tremendous merit to be involved in organizing
and participating in such a wonderful chesed project (Ahavas Chesed 3:3).

What does the word bikur mean?

Although the word “bikur” means “visit” in modern
Hebrew, the original meaning of “bikur” is not “visit” but “examine” or
“check.” The primary responsibility of the mitzvah of bikur cholim is
to check and see what the ill person needs and to do whatever one can to meet
those needs (Toras Ha’adam). Thus, a physician, nurse, nurse’s aide, or
medical clown performs the mitzvah of bikur cholim all day long.
If they regularly have in mind that they are fulfilling what Hashem
wants us to do, they are rewarded for each and every time that they stop in to inquire
about the ill and assist in his care. Each time a person visits an ill person,
he fulfills an additional act of the mitzvah of bikur cholim,
provided that the ill person appreciates the visit. However, one who performs
the same activities while looking at it exclusively as a job, but not as an
opportunity to imitate Hashem’s wondrous deeds, misses the opportunity
to receive all this reward. In addition, constantly recognizing that I am
acting like Hashem and fulfilling His mitzvos makes a tremendous
impression on one’s neshamah.

There are two main aspects of this mitzvah:

I. Taking care of the physical and emotional needs of ill people.

II. Praying for their recovery (Toras Ha’adam, based
on Nedarim 40a).

Taking care of needs

In addition to raising the sick person’s spirits by showing
one’s concern, the visitor should also ascertain that the physical, financial,
and medical needs are properly cared for, as well as other logistical concerns
that may be troubling the patient. Often, well- meaning people make the effort
to visit the sick, but fail to fulfill the mitzvah of bikur cholim
fully, because they fail to check if the choleh needs something (Gesher
Hachayim
).

Visiting a child

The mitzvah of bikur cholim includes visiting a
child who is ill (Yalkut Yosef, Volume 7,page 27). If the child
is accompanied by a parent, one can accomplish all aspects of the mitzvah
by visiting the parent and child in the hospital, seeing that their needs are
being met and praying for the recovery of the child.

Praying

The Beis Yosef (Yoreh Deah 335) writes, “It is
a great mitzvah to visit the ill, since this causes the visitor to pray
on the sick person’s behalf, which revitalizes him. Furthermore, since the
visitor sees the ill person, the visitor checks to see what the ill person
needs.” We see that the Beis Yosef considers praying for the ill an even
greater part of the mitzvah than attending to his needs, since he first
mentions praying and then refers to attending to the other needs as “furthermore.”

The authorities note that someone who visits a sick person
without praying for his recovery fails to fulfill all the requirements of the mitzvah
(Toras Ha’adam; Rema, Yoreh Deah 335:4). Therefore, physicians, nurses,
aides and medical clowns should accustom themselves to pray for their sick
patients in order to fulfill the complete mitzvah of bikur cholim.
A simple method of accomplishing this is to discreetly recite a quick prayer
(such as “Hashem, please heal this person among the other ill Jewish
people [besoch she’ar cholei Yisroel]”) as one leaves the person’s room.
(A doctor in his office can recite the same quick prayer.) When wishing someone
refuah sheleimah, what one is doing is praying on his behalf.

When praying for someone ill, always include a request that
he get well together with the rest of the Jewish ill (Shabbos 12b).

Small illness

The Gemara (Yerushalmi, Brochos 4:4) implies
that one should pray for the healing of even a relatively minor illness. To
quote: “We should assume that any illness carries with it the potential to
become dangerous.”

Just pray?

At this point, let us look at the first of our opening
questions: “If the mitzvah of bikur cholim is to see that the
patient’s needs are taken care of, what am I accomplishing by visiting him in
the hospital? I am not a physician, and my inquiring about the patient’s
medical care is probably intrusive and counter-productive.”

Aside from the advantage in cheering them up, which can
certainly help in their medical care, visiting the patient and seeing him
motivates one to daven harder for his recovery and that Hashem
should give the medical personnel the wisdom to provide the proper treatment (Shu”t
Yechaveh Daas
3:83).

Is there a rabbi in the house?

At this point, let us address the second of our opening
questions: “Why do people ask tzaddikim to pray on behalf of an ill
person?”

Anyone can daven on behalf of an ill person, and
should do so; of course, this includes the ill person himself. The Gemara
teaches that King Chizkiyahu was healed exclusively in the merit of his own
prayer.

Notwithstanding that everyone can and should pray for the
sick, the prayers of a great tzaddik have additional merit and can
accomplish what the prayers of others cannot. The Gemara (Bava Basra
116a) teaches this lesson in the following way: “Whoever has an ill person in
his house should go to a wise man, so that he can pray for mercy on his behalf,
as the verse states, ‘The angels of death are the fury of the King, but a wise
man will atone for it’ (Mishlei 16:14).”

Ben gilo

The Gemara (Nedarim 39b; Bava Metzia
30b) teaches that the most effective person to visit someone ill is one who
qualifies as a ben gilo. The Gemara states that when a ben
gilo
visits someone ill he takes with him 1/60 of the illness. This means
that the ill person is better, but the ben gilo may be affected. What is
the definition of a ben gilo?

Among the authorities, I found three interpretations of the
term.

(1) One approach I found is that a ben gilo shares a
common mazel, meaning that he and the ill person were born under the
same astrological sign (Rosh and Ran, Nedarim 39b; Taz, Yoreh
Deah
335:2).

(2) The Meforeish (Nedarim 39b) defines ben
gilo
as a young person visiting someone young, or an older person visiting
someone in his age range.

(3) The Meiri (Nedarim 39b) defines ben
gilo
as someone whose company the ill person enjoys. The company of someone
the patient enjoys eases the illness, but it also affects the health of the
friend seeing him so ill.

The probable source for the Meiri is a Midrash
Rabbah
(Vayikra 34:1), where it states the following: “Rav Huna
said: ‘Whoever visits the ill removes one sixtieth of his illness.’ They then
asked Rav Huna, ‘Then let sixty people come and visit him, and he’ll leave with
them afterwards for the marketplace, completely cured!’ To this Rav Huna
answered: ‘Sixty people can indeed accomplish this, but only if they love him
as they love themselves!’”

Thus, we see the tremendous value of feeling empathy for the
pain of the ill. (We should note that the Gemara supplies an answer to
the question that was asked of Rav Huna that disputes the answer provided by
the Midrash.)

Brocha for bikur cholim

One of the interesting aspects of the mitzvah of bikur
cholim
is that we do not recite a brocha prior to performing it. Why
not?

There are many approaches to answer this question. I will
here share some approaches mentioned by the early commentaries.

Patient may not want

1. One recites a brocha only prior to fulfilling a mitzvah
which one knows is within his ability to perform. The patient may not want
someone to take care of matters for him, or may not want to be visited. If
indeed, he does not want visitors, someone who visits him does not fulfill any mitzvah
(Shu”t Harashba #18).

Let me explain this approach in a bit more detail. There is
a mitzvah that the ill be treated medically and properly. This is
included under the mitzvah of the Torah of venishmarta me’od
lenafshoseichem
, you should be very careful to take care of your lives (Devorim
4:15). One would perhaps think that, therefore, I should recite a brocha
on visiting the sick, since my goal is to help cure the ill person, and he is
required to seek a cure for his illness. However, this is not sufficient reason
to recite a brocha, since the patient is under no obligation to accept
my offer to help. He may seek his relief elsewhere.

Not uniquely Jewish

2. Some authorities explain why we do not recite a brocha
because the text that we say for birchos hamitzvos is: Asher
kideshanu bemitzvosav,
that He sanctified us with His mitzvos. They
contend that we recite a brocha only when a mitzvah is uniquely
Jewish (see Rokei’ach, quoted in Encyclopedia Talmudis,Volume
IV, column 525). However, non-Jews also take care of the ill, so this mitzvah
does not reflect anything special about the relationship of Hashem to
the Jewish people.

This answer is reinforced by the fact that when fulfilling a
mitzvah that is uniquely theirs, the kohanim recite a brocha
that begins with the words Asher kideshanu bikedushaso shel Aharon, that
He sanctified us with the sanctity of Aharon. This demonstrates that the text
of brochos for mitzvos is because of the unique ability we have
to perform specific commandments that we, as Jewish people or part of the
Jewish people, can perform.

3. Prefer not

Yet another reason cited why we do not recite a brocha
on bikur cholim is because reciting a brocha prior to observing
this mitzvah sounds like we want the situation to exist (Raavad,
quoted by Yalkut Yosef, page 24). We certainly would prefer that there
be no ill people who require medical attention. This reason also explains why
we do not recite a brocha on mitzvos such as nichum aveilim,
consoling the mourners,and tearing keriyah upon hearing of the
passing of a loved one.

4. Not time bound

Some rishonim note that all mitzvos upon which
we recite brochos are those bound by time – meaning that there are times
when we are obligated to observe the mitzvah and times when no
obligation exists (Or Zarua, Birchas Hamotzi #140). Obviously, the mitzvah
of bikur cholim can be fulfilled at any time.

How to visit

The Gemara states that the shechinah rests
above the head of a sick person (Shabbos 12b; Nedarim 40a). For
this reason, it states that someone who visits a sick person should not sit on
a bed, a stool or a chair, but should wrap himself in his talis and sit
on the floor. (The Gemara is referring to the time in history when a talis
was the standard outer garment that a man wore. It does not mean to imply that
one should put on a talis in order to fulfill the mitzvah of
visiting the ill.) Alternatively, he can remain standing during his visit.

However, the Rema (Yoreh Deah 335:3) rules that
when the Gemara prohibits sitting on a bed, a stool or a chair when
visiting someone ill, it was referring to a situation where the patient is
lying on the floor – in such a situation, one should not sit in a position
higher than the shechinah. When the ill person is in a bed, one can sit
on a chair that is no higher than the bed (see Yalkut Yosef, pg 28,
quoting Rav Eliezer Yehudah Valdenberg).

Visiting alone

At this point, let us address the last of our opening
questions: “I was told not to visit a sick person by myself. Is there any halachic
basis for this practice?”

Before answering this question, I will provide a bit of
historical background. Most of the earlier halachic compendia we have
date to the time of the rishonim, about 700-1000 years ago. However, one
of the major halachic works dates back earlier, to the era of the geonim,
who were the roshei yeshiva of the yeshivos in Bavel
(Mesopotomia, in today’s Iraq) and the poskim of all of klal Yisroel for
a period of approximately 400 years prior to the times of the rishonim.

One of the geonim, Rav Acha’i, authored a halachic
work, called the She’iltos, probably the earliest post-Talmudic halachic
compendium. In one of his essays there, he discusses the mitzvah of bikur
cholim
as follows:

“The Jewish people are required to inquire about the
wellbeing of the ill, as Rav Chanina said, ‘How are we to understand the words
of the Torah: “You should follow Hashem, your G-d.” How is it possible
for a human being to follow the Holy One, blessed is He, when the verse
declares that Hashem, your G-d, is a consuming fire?’”

Rav Acha’i continues: “Therefore, one is obligated to go and
inquire about the needs of the ill. And when one goes, one should not go alone,
but with someone else.”

Thus, there is a halachic source for the practice not
to visit the ill alone.

Notwithstanding this ruling of the She’iltos, normative
halachic practice does not follow the opinion of Rav Acha’i.

The Netziv, a Hebrew acronym of Rav Naftali Tzvi
Yehudah Berlin, was the Rosh Yeshiva of the Volozhin Yeshiva in the late
nineteenth century, at the time that it was the preeminent yeshiva in the
world. He authored several monumental works, including highly original
commentaries on the Torah, and on several halachic midrashim: the Sifrei,
the Mechilta, and the Sifra. He also wrote what has become the
standard commentary on the She’iltos of Rav Acha’i. There the Netziv
writes that he is unaware of the source for the She’iltos ruling that
one should not visit the ill by himself, and he is unaware of any other halachic
authority who mentions this.

Among late compendia on the laws of bikur cholim, I
found this question discussed in the Yalkut Yosef, written by the
current Sefardic chief rabbi of Israel, Rav Yitzchak Yosef. Rav Yosef
concludes that, since no other halachic authorities, including the Shulchan
Aruch
, mention a halacha that one should not go alone to visit the
ill, one should observe it only when it will not prevent someone from
fulfilling the mitzvah. In other words, if it will be inconvenient to
visit the ill person with someone else, or the ill person would prefer to be
visited by one individual at a time, or the only other person available may
make the ill person uncomfortable, one should certainly not take along another
person when visiting the sick.

Conclusion

People who fulfill the mitzvah of bikur cholim
are promised tremendous reward in Olam Haba, in addition to many rewards
in this world (Shabbos 127a). In addition to all the obvious reasons for
the mitzvah of bikur cholim, the Kli Yakar, in his
commentary to this week’s parsha (Bamidbar 16:29), offers an
additional reason for fulfilling bikur cholim – to benefit the visitor.
This influences the visitor to think of the importance of doing teshuvah.
And this provides extra merit for the sick person, since he caused someone else
to do teshuvah, even if it was unintentional. May Hashem senda
speedy recovery to all the ill!




Taking Care of the Ill — The Mitzvah of Bikur Cholim

Those of us living in Eretz Yisroel, are reading parshas
Korach
this week, from which the Gemara cites a source for the
mitzvah of bikur cholim. Those living in chutz la’aretz, can
certainly find ample reason to study the laws of bikur cholim this week.

Question #1: “Rabbi,” asked Mr. Greenberg, “My neighbor,
Mrs. Friedman, is having an operation. Is it appropriate for me to visit her?”

Question #2: Does Dr. Strauss fulfill the mitzvah of bikur
cholim
when he makes his hospital rounds?

Question #3: “My sister-in-law is hospitalized for a few
days for a minor procedure. I should really visit her, but I just can’t find
the time. Is it halachically sufficient for me to call her?”

Based on a pasuk in parshas Korach, the Gemara
(Nedarim 39b) teaches: “There is an allusion to the mitzvah of bikur
cholim
in the Torah: When Moshe declares, ‘If these people (Korach’s party)
will die like most people do, and the destiny of most people will happen to
them, then Hashem did not send me.’ How do we see an allusion to the mitzvah
of bikur cholim in the pasuk? Moshe declared: If these people
will die like most people do – if they will become ill and bedridden and people
will come to inquire about their needs (in other words, illness provides an
opportunity for people to fulfill the mitzvah of bikur cholim) – then
people will say ‘Hashem did not send me.’” Thus, the Gemara cites
this week’s parsha as one of the sources in the Torah for the mitzvah
of bikur cholim since Moshe specifically asked that Korach and his party
not die in the manner that most people, where this a chance to achieve this
important mitzvah.

Another allusion to bikur cholim is in the beginning
of Parshas Vayeira, where is says that Hashem visited Avraham
Avinu three days after his Bris Milah. Rashi points out that Hashem
was performing bikur cholim, visiting and providing care for the ill. In
the same way, by taking care of the ill, we fulfill the mitzvah of emulating Hashem’s
ways, in addition to the special mitzvah of bikur cholim (Sotah
14a). Thus, physicians, nurses or other medical professionals should have in
mind before every visit or appointment that they are performing two mitzvos,
one of emulating Hashem, and the other of bikur cholim. Since we
rule that mitzvos tzerichos kavanah, to fulfill a mitzvah requires being
cognizant of that fact, any medical professional gains much merit by being
aware of this every day and all day.

Every community should have an organization devoted to the
needs of the sick, and it is a tremendous merit to be involved in organizing
and participating in such a wonderful chesed project (Ahavas Chesed 3:3).

The Kli Yakar (Bamidbar 16:29) offers an
additional reason for fulfilling bikur cholim to benefit the
visitor. Seeing someone ill influences the visitor to think about the
importance of doing teshuvah. And this influence provides extra merit
for the sick person, since he caused someone else to do teshuvah!

The Gemara (Nedarim 40a) reports that when one
of Rabbi Akiva’s disciples was ill, no one came to check his welfare. Then
Rabbi Akiva entered his dwelling, cleaned it and sprinkled water on the floor
(to prevent dust from rising), and the student exclaimed, “Rabbi Akiva, you have
brought me back to life!” After this experience, Rabbi Akiva taught that
someone who visits the ill is considered to have saved his life!

WHY “BIKUR” CHOLIM?

What does bikur cholim mean?

It is worth noting that although “bikur” means
“visit” in modern Hebrew, the original meaning of “bikur” is not “visit”
but “checking.” In other words, the actual mitzvah of bikur cholim is to
check which of the sick person’s needs have not been attended to (Toras
HaAdam
).

There are two main aspects of this mitzvah:

I. Taking care of the physical and emotional needs of someone who is
ill.

II. Praying for the recovery of the ill person (Toras
HaAdam
, based on Nedarim 40a).

I. TAKING CARE OF PHYSICAL NEEDS

In addition to raising the sick person’s spirits by showing
concern, the visitor should also ensure that the physical, financial, and
medical needs of the ill person are properly being attended to, as well as
other logistical concerns that may be troubling him/her. Often, well-meaning
people make the effort to visit the sick, but fail to fulfill the mitzvah of bikur
cholim
properly, because they fail to take care of the choleh’s
needs (Gesher HaChayim).

Always cheer up the choleh (Gesher HaChayim). 
This is included in attending to his emotional needs.

The visit is to benefit the choleh. In most
circumstances, a visit should be short and not tire out or be uncomfortable for
the ill person. Sometimes the sick person wants to rest, but feels obligated to
converse with a visitor (Aruch HaShulchan, Yoreh Deah 335:4). In such
cases, visitors think they are performing a mitzvah, while, unfortunately, they
are actually doing the opposite. It is important to remember that the entire
focus of bikur cholim is on the sick person’s needs and not on the
visitor’s desire to feel noble or important. I remember my mother, a”h,
having such guests during one of her hospital stays; although she kept hinting
that she wanted to rest, they didn’t catch on and stayed put. They thought they
were performing a kind deed, while, in reality, they were harming a sick person
who desperately needed to rest.

OVERNIGHT CARE

One of the greatest acts of chesed is to stay
overnight with a choleh (Aruch HaShulchan, Yoreh Deah 335:3; Shu’t
Tzitz Eliezer, Volume 5, Ramat Rachel,
#4). A similar act of bikur
cholim
and true chesed is to stay overnight with a hospitalized
child to enable parents to get some proper sleep and keep their family’s life
in order.

A person can fulfill the mitzvah of bikur cholim even
a hundred times a day (Nedarim 39b). If one frequently pops one’s head
into one’s sick child’s bedroom to see how the child is doing, or periodically
drops in to visit a shut-in, one fulfills a separate mitzvah each time, so long
as it does not become burdensome to the choleh. Similarly, a nurse
fulfills the mitzvah of bikur cholim each time he/she checks on a
patient, and, therefore, she should have intent to do this for the sake of
fulfilling the mitzvah.

This applies even if the nurse is paid, because the
proscription against being paid to do a mitzvah applies only to the mitzvah’s
minimum requirement. Once one does more than this minimum, one can be paid for
the extra time one spends. The same certainly applies to someone paid to stay overnight
with a sick patient.

IS THERE AN OPTIMUM TIME OF DAY TO VISIT?

The Gemara states that one should not
visit a sick person during the first quarter of the day, since one usually
looks healthier in the morning and the visitor may not be motivated to pray on
behalf of the ill person. One should also not visit a sick person at the end of
the day, when he looks much sicker and one might give up hope. Therefore, one
should visit an ill person during the middle part of the day (see Nedarim
40a, and Ahavas Chesed 3:3). Rambam offers a different reason for
this halacha, explaining that at other times of the day, visitors might
interfere with the attendants and medical personnel who are taking care of the choleh
(Hilchos Aveil 14:5).

Thus, the ideal time for visiting an ill person is in the
middle of the day, unless he is receiving medical treatment at that time.

Despite the above, the custom is to visit the ill person,
regardless of the time of the day. Why is this so? The Aruch HaShulchan
(Yoreh Deah 335:8) explains that the Gemara’s visiting times are
advisory rather than obligatory. The Gemara is saying that one should
visit the ill person at the time most beneficial for his care, which is usually
the afternoon, either because this does not interfere with medical care or
because it is the best time to detect the patient’s medical status. However,
this is only advice and can be tempered by other practical concerns.

WHAT IF THE ILL PERSON IS RECEIVING SUBSTANDARD CARE?

In this instance, one should try to upgrade the choleh’s care
without agitating him in the process (Gesher HaChayim).

WHOM TO VISIT FIRST

Usually, it is a greater mitzvah to visit a poor choleh
than a wealthy one. This is because there is often no one else to care for the
poor person’s needs (Sefer Chassidim #361). Additionally, he may need
more help because of his lack of finances, and he is more likely to be in
financial distress because of his inability to work (Ahavas Chesed 3:3).

If two people need the same amount of care and one of them
is a talmid chacham, the talmid chacham should be attended to
first (Sefer Chassidim #361). If the talmid chacham is being
attended to adequately and the other person is not, one should first take care of
the other person (Sefer Chassidim #361).

CROSS-GENDER VISITING

Should a man pay a hospital visit to a female non-relative,
or vice versa?

The halacha states that a man may attend to another
man who is suffering from an intestinal disorder, but not to a woman suffering
from such a problem, whereas a woman may attend to either a man or a woman
suffering from an intestinal disorder (Mesechta Sofrim Chapter 12). This
implies that one may attend to the needs of the opposite gender in all other
medical situations (Shach, Yoreh Deah 335:9; Birkei Yosef, Yoreh Deah
335:4; Aruch HaShulchan, Yoreh Deah 335:11 and Shu’t Zakan Aharon
2:76).

There is a famous story of Rav Aryeh Levin, the tzaddik of
Yerushalayim. He was once concerned that a certain widow who had been told not
to fast on Yom Kippur would disobey orders, he personally visited her on Yom
Kippur and boiled water for a cup of tea to ensure that she drank. In this way,
he fulfilled the mitzvah of bikur cholim on Yom Kippur in a unique way (A
Tzaddik in Our Time).

However, some halachic authorities distinguish
between attending to a sick person’s needs, and visiting, contending that
although a woman may usually provide a man’s nursing needs and vice versa,
there is no requirement for a woman to visit an ill man (Shu’t Tzitz
Eliezer, Volume 5, Ramat Rachel,
and Zichron Meir pg. 71 footnote 24
quoting Shu’t Vayaan Avrohom, Yoreh Deah #25 and others).
Other authorities contend that when one can assume that the woman’s medical
needs are provided, a man should not visit her, because of tzniyus concerns
(Shu’t Chelkas Yaakov 3:38:3; Shu’t Tzitz Eliezer, Volume 5,
Ramat Rachel,
#16). Instead, the man should inquire about her welfare and
pray for her. I suggest asking your rav or posek for direction in
these situations.

II. PRAYING FOR THE ILL

The Beis Yosef (Yoreh Deah 335) writes, “It is
a great mitzvah to visit the ill, since this causes the visitor to pray on the
sick person’s behalf, which revitalizes him. Furthermore, since the visitor
sees the ill person, the visitor checks to see what the ill person needs.” We
see that Beis Yosef considers praying for the ill an even greater part of the
mitzvah than attending to his needs, since he first mentions praying and then
refers to attending to the other needs as “furthermore.”

Someone who visits a sick person without praying for his
recovery fails to fulfill all the requirements of the mitzvah (Toras HaAdam;
Rama
335:4). Therefore, physicians, nurses, and aides who perform bikur
cholim
daily should accustom themselves to pray for their sick patients, in
order to fulfill the mitzvah of bikur cholim. A simple method of
accomplishing this is to discreetly recite a quick prayer (such as “Hashem,
please heal this person among the other ill Jewish people [b’soch she’ar
cholei yisrael
]”) as one leaves the person’s room. (A doctor in his office
can recite the same quick prayer.)

MUST ONE PRAY FOR A SICK PERSON BY NAME?

When praying in a sick person’s presence, one does not need
to mention his name, and one may recite the prayer in any language. The Gemara
explains that this is because the Shechinah, the Divine presence, rests
above the choleh’s head (Shabbos 12b). However, when the ill
person is not present, one should pray specifically in Hebrew and should
mention the person’s name (Toras HaAdam; Shulchan Aruch Yoreh Deah
335:5). If one cannot pray in Hebrew, one may do so in English or any other
language except Aramaic (see Taz, Yoreh Deah 335:4).

[Incidentally, since the Shechinah is in the choleh’s
presence, visitors should act in a dignified manner (Shabbos 12b; Shl”a).
This includes both their behavior and their mode of dress.]

Why must one pray in Hebrew when the ill person is not
present? Rashi explains that in such a case, when one prays for an
individual, angels have to transport the prayer to the Divine presence (the Shechinah)
– these angels transport only prayers recited in Hebrew and not those recited
in Aramaic (Rashi, Shabbos 12b s.v. Deshechinah). However,
when praying in the presence of the sick person, one may pray in any language,
since the Shechinah is nearby and the prayer does not require the angels
to transport it on high (Shabbos 12b).

MAY ONE PRAY IN ENGLISH FOR THE ILL?

This explains the difference between Hebrew and Aramaic. What
about other languages? Do the angels “transport” prayer recited in a different
language?

To answer this question, we must first explain why angels do
not transport Aramaic prayers?

The halachic authorities dispute why the angels do
not convey prayers recited in Aramaic. Some contend that angels communicate
only in Hebrew and, furthermore, only convey a prayer that they understand (Tosafos,
Shabbos
12b s.v. She’ayn). According to this approach, the angels convey
only Hebrew prayers. However, other authorities contend that the angels do not
convey Aramaic prayers because they view this language as corrupted Hebrew and
not a real language (Rosh, Berachos 2:2). Similarly, the angels will not
convey a prayer recited in slang or expressed in an undignified way. According
to the latter opinion, the angels will convey a prayer recited in any proper
language, and one may pray in English for an ill person even if he is not
present.

The Shulchan Aruch quotes both opinions, but
considers the first opinion to be the primary approach (Orach Chayim
101:4). However, in Yoreh Deah 335:5, the Shulchan Aruch omits
the second opinion completely. The commentaries on the Shulchan Aruch
raise this point, and conclude that the Shulchan Aruch felt that praying
for an ill person is such a serious matter that one should certainly follow the
more stringent approach and pray only in Hebrew when the choleh is not
present (Taz, Yoreh Deah 335:4). Therefore, one should not pray for an
individual sick person’s needs in any language other than Hebrew. Only if one
is unable to pray in Hebrew, may one rely on the second opinion and pray in any
language other than Aramaic.

DOES ONE FULFILL BIKUR CHOLIM OVER THE TELEPHONE?

To answer this question, let us review the reasons for this
mitzvah and see if a telephone call fulfills them. One reason to visit the ill
is to see if they have any needs that are not being attended to. Although a
phone call might discover this, being physically present at the bedside is
usually a better method of ascertaining what is needed. The second reason one
visits the ill is to motivate the visitor to pray on their behalf. Again,
although one may be motivated by a phone call, it is rarely as effective as a
visit. Furthermore, although a phone call can cheer up the choleh and
make him feel important, a personal visit accomplishes this far more
effectively. Therefore, most aspects of this mitzvah require a personal visit.
However, in cases where one cannot actually visit the choleh, for
example, when a visit is uncomfortable for the patient or unwanted, one should
call (Shu’t Igros Moshe, Yoreh Deah 1:223; Shu’t Chelkas
Yaakov
2:128). Some authorities contend that it is better for a man to
call, rather than visit, a hospitalized or bed-ridden woman who is not a
relative, since it is difficult for an ill person to maintain the appropriate
level of tzniyus (Chelkas Yaakov 3:38:3).

ALWAYS PRAY FOR GOOD HEALTH

A healthy person should daven for continuing good
health, because it is far easier to pray that one remain healthy than to pray
for a cure after one is already ill. This is because a healthy person remains
well so long as no bad judgment is brought against him in the heavenly
tribunal, whereas an ill person needs zechuyos to recover. This latter
instance is not desirable for two reasons — first, the choleh may not
have sufficient zechuyos, and second, even if he does, he will lose some
of his zechuyos in order to get well.

Before taking medicine or undergoing other medical treatment
one should recite a short prayer: “May it be Your will, Hashem my G-d,
that this treatment will heal, for You are a true Healer” (Magen Avraham
230:6; Mishnah Berurah 230:6, based on Berachos 60a).

People who fulfill the mitzvah of bikur cholim are
promised tremendous reward in Olam Haba, in addition to many rewards in
this world (Shabbos 127a). Someone who fulfills the mitzvah of bikur
cholim
properly is considered as if he saved people’s lives and is rewarded
by being spared any severe punishment (Nedarim 40a).

May Hashem send refuah shleimah to all the cholim
of Klal Yisrael!




How Much May I Charge?

Question #1: Overcharged esrog

“My esrog dealer charged me $150 for an esrog. My brother-in-law, who knows the business, told me that he overcharged me, and the esrog is not worth more than $35. Can I get my money back?”

Question #2: Just a little bit

“Am I permitted to charge a little bit above the market price for an item?”

Question #3: Damaged coin

“I noticed that someone tried to scrape off some of the metal on a coin that I have. May I use it?”

Question #4: Expert error

“I purchased a rare coin from a dealer, and he clearly undercharged me. Am I required to tell him about it?”

Answer:

Upon graduation from olam hazeh, the first question asked upon entering the beis din shel maalah, the Heavenly Court, is: “Did you deal honestly with your fellowmen?” (Shabbos 31a). The Aruch Hashulchan (Orach Chayim 156:3) explains that this does not mean, “Did you steal?” or “Were your weights honest?” Someone who violated these laws, whether dealing with Jewish or non-Jewish clientele, qualifies as a rosho gamur. Rather, the Heavenly Court’s inquiries are: “Did you make unjustified claims about the quality of the merchandise that you are selling?” “Did you speak to people softly in your business dealings?” “Did you curse, scream, or act angrily with people?” “Did you realize that all livelihood comes only from Hashem and act within that framework?”

Anytime is ideal to discuss the details of this topic; I chose to do so this week, since the parsha involves an obvious question as to whether Rivkah and Yaakov were permitted to deceive Yitzchok about the brochos.

In parshas Behar, the Torah teaches, Lo sonu ish es amiso (Vayikra 25:17). The word sonu has the same root as the word onaah, the name by which we call this mitzvah. The word onaah is difficult to translate into English, but for the purposes of our article, I will use the word overcharging, although, as we will soon see, onaah also includes situations of underpayment or of misrepresentation. The purpose of this article is to present the basic principles; specific questions should be referred to your own rav or dayan. Just as everyone must have an ongoing relationship with a rav for psak and hadracha, one must also have an ongoing relationship with a dayan who can answer the myriad Choshen Mishpat questions that come up daily.

Three types of onaah

There are three types of overcharging that are included in the prohibition of onaah, all of which involve taking unfair advantage:

(1) Fraud – when the item being sold contains a significant flaw that the seller conceals or otherwise misrepresents.

(2) Overpricing – when one party to the transaction is unaware of the market value of the item.

(3) No recourse – when someone is aware that he is being overcharged, but he has no recourse, because of the circumstances.

I will now explain a bit more about each of these types of onaah.

(1) Fraud

It is prohibited to hide a defect or to misrepresent an item. For example, the Mishnah (Bava Metzia 60a) and the Gemara (ibid. 60b) prohibit selling watered-down products, or painting something to hide a flaw or to make it look newer than it is (Shulchan Aruch, Choshen Mishpat 228:9). One may not add inferior material to a quality product when the purchaser will see only the quality product (Bava Metzia 59b-60a; Shulchan Aruch, Choshen Mishpat 228:10, 11).

Onaah is prohibited not only in sales, but also in other transactions, such as hiring people or contracting work (Shulchan Aruch, Choshen Mishpat 227:35, 36, 16).

Shidduchin

Holding back significant medical, emotional or spiritual issues that could affect a shidduch is also prohibited because of onaah. To quote the words of the Sefer Chassidim (#507): “When arranging matches for your children or other family members, do not hide from the other party medical issues that would have been reason for them to reject the shidduch, lest they afterwards choose to annul the marriage. Similarly, you should tell them about deficiencies in halachic observance significant enough that the other party would have rejected the marriage.”

By the way, there is no halachic requirement to reveal detrimental information to a shadchan, and one is not required to inform the other side before the couple meets. However, it must be told sometime before the shidduch is finalized. This particular topic is more detailed than we can discuss in this article. Indeed, I devoted a different article to this topic, entitled “Can I Keep My Skeletons in the Closet.” There are also other articles on the website that touch on this broad topic, which can be found with the search word shidduch.

Insider trading

Insider trading, meaning buying or selling a commodity or security on the basis of information that is not available to the general public, is now a heavily punished felony in the United States, but was once legal there and is still legal in many countries of the world. Halacha prohibits all forms of insider trading because of onaah, since the insider is taking advantage of the other party.

(2) Overpricing

A second type of onaah is when there is no flaw or other problem with the quality of the item being transacted, but the price paid is greater than the item’s market value. Overcharging of this nature is also prohibited because of onaah.

Over a sixth

When the price, or range of price, of an item can be established, if an item was sold at more than one sixth over the market price, the aggrieved party has a right to return the item for a full refund (Shulchan Aruch, Choshen Mishpat 227:4.) For example, the stores that stock this item sell it for up to $600, and the seller charged the purchaser over $700. In this instance, according to halacha, the purchaser can return the item and get his money back. (There are detailed halachos that govern how much time he has to make this claim.)

One can demand return compensation only when the party did not use the item once he realized that he had been overcharged.

Another case where the item cannot be returned: The aggrieved party realized that he was overcharged, but decided to keep the item anyway. In the interim, the price of the item dropped such that he can now get a much better deal. Since his reason to back out on the deal is not because of the original overcharge, he may not invalidate the original sale (Shulchan Aruch, Choshen Mishpat 227:9).

It is interesting to note that there are authorities who rule that even the aggrieving party can withdraw from the deal when the price was so much off mark. This is because they contend that someone does not agree to a transaction if he knows that the price was so disproportionate to the item’s value (Rema, Choshen Mishpat 227:4.)

One sixth

The halacha is that if the overcharge was by exactly one sixth, the deal holds, but the aggrieved party is entitled to be refunded the overcharge sum (one sixth of what he paid). Thus, if the item was worth $600 and it was sold for $700, the purchaser is entitled to receive $100 back.

Less than a sixth

If the overcharge was less than a sixth, which means that the price was clearly too high but less than a sixth over the market value, the deal is valid, and the aggrieved party is not entitled to any compensation. Thus, if the item was worth $600 and it was sold for $690, the deal remains as is.

Is it permitted?

At this stage, we can address one of our opening questions: “Am I permitted to charge a little bit above the market price for an item?” Granted that the deal will be valid if someone did this, is one permitted to do so lechatchilah?

Indeed, this is an issue that is disputed by the halachic authorities (Tur, Choshen Mishpat 227, quoting Rosh). The Tur explains that min haTorah, overcharging is prohibited if one is aware that this is the case, but Chazal were lenient, because it is difficult for anyone to be this accurate. However, many prominent authorities are of the opinion that it is prohibited to overcharge intentionally, even by a very small amount (Aruch Hashulchan, Choshen Mishpat 227:2).

The Tur concludes that a yarei shamayim, a G-d fearing person, should try to act strictly regarding this law.

The Shulchan Aruch rules that it is uncertain whether it is permitted to overcharge by less than a sixth (Shulchan Aruch, Choshen Mishpat 227:6). Some major authorities conclude that a yarei shamayim should return the difference, even in a case where it amounted to less than a sixth (Sma 227:14).

Furthermore, when the price on a specific item is very exact, because of government regulations or market conditions, even those authorities who are lenient about overcharging a small amount will agree in such a case that it is prohibited to charge any more than the accepted market price (Aruch Hashulchan, Choshen Mishpat 227:3).

Cash fast

Here is a situation in which someone cannot demand return compensation, even though he sold the item at way below its value: A seller needed to raise cash quickly and therefore sold items without checking their proper value. He cannot request his money back by claiming that he was underpaid, because it is clear that, at the time he sold them, he was interested in selling for whatever cash he could get (Shulchan Aruch, Choshen Mishpat 227:9).

All items?

The Mishnah (Bava Metzia 56b) quotes a dispute between tana’im whether the laws of overcharging by more than a sixth apply to items such as sifrei Torah, animals and precious stones. The tanna kamma contends that the laws of onaah apply, including the right to have the item returned, whereas Rabbi Yehudah holds that these laws do not apply to such items. In the case of sifrei Torah, this is because the pricing is difficult to determine, and in the cases of animals and precious stones, because the purchaser may have a special need for this specific animal or stone which makes it worth more to him than the usual market price. For example, this animal has the same strength as an animal the purchaser already owns, making it possible to pair them together in work, or the stone matches well to the specific color and size he is using for a piece of jewelry (Bava Metzia 58b).

Wartime

Although most tana’im disagree, the Gemara (Bava Metzia 58b) adds that Rabbi Yehudah ben Beseira ruled that there is no onaah for selling horses, shields or swords during wartime, because your life might depend on it. I presume that this means that during a war, the value of these items far exceeds their normal market price, and that, therefore, even an inflated price is not considered overcharging. The halacha does not follow the opinion of Rabbi Yehuda ben Beseira. Therefore, should someone be overcharged for the purchase of these materials during wartime, he is not required to pay more than the accepted market price.

Overcharged esrog

At this point, we are in a position to examine our opening question: “My esrog dealer charged me $150 for an esrog. My brother-in-law, who knows the business, told me that he overcharged me, and the esrog is not worth more than $35. Can I get my money back?”

This question is discussed in Shu”t Beis Yitzchak (Orach Chayim 108:4). He explains that the laws of invalidating a transaction because of an overcharge do not apply to an esrog purchased for use on Sukkos, unless the esrog was not kosher. His reason is that an individual has all sorts of reasons why he wants to purchase a specific esrog, and that, therefore, high-end esrogim do not have a definitive price. We could compare this to someone who purchases a painting at auction, and an art expert contends that the purchaser overpaid. The opinion of the expert does not allow the buyer to invalidate his acquisition.

Expert error

At this point, let us return to one of our opening questions: “I purchased a rare coin from a dealer, and he clearly undercharged me. Am I required to tell him about it?”

An expert can also be overcharged or underpaid (Mishnah, Bava Metzia 51a; Shulchan Aruch, Choshen Mishpat 227:14). Therefore, the purchaser is required to point this out to the dealer.

Furthermore, if you know that the price of an item has gone up, but the seller is unaware of this, you are required to let him know (Aruch Hashulchan, Choshen Mishpat 227:1).

Mistaken overcharging

A person who overcharged someone in error is required to bring it to his attention. All the halachos mentioned above of overcharging apply, even if it was unintentional (Pischei Choshen 4:10:ftn #1).

Real estate

The Mishnah (Bava Metzia 56a) states that there is no onaah regarding real estate. This means that the concept of a deal being invalidated when the price is more than a sixth overpriced does not relate to land. Nevertheless, it is prohibited to deceive someone in matters germane to property, such as by withholding information that affects the value of the property or its utility (Sma 227:51, quoting Maharshal; Pischei Teshuvah 227:21, quoting Ramban and Sefer Hachinuch).

Title search

If someone sells a property based on his assumption that proper ownership has been established, which is later legally challenged, the purchaser has a claim to get his money back (Shulchan Aruch, Choshen Mishpat 226:5).

Legal tender

At this point, let us examine another of our opening questions: “I noticed that someone tried to scrape off some of the metal on a coin that I have. May I use it?”

In earlier days, a coin’s value was usually determined by its weight and purity. In today’s world, the value of a coin or other currency is determined predominantly by the market forces germane to that country’s currency, but not by the quality of the individual coin, unless it is damaged to the point that it will no longer be accepted in the marketplace. Therefore, today, it is acceptable to use a damaged coin or bill that the average merchant or the bank will accept (Shulchan Aruch, Choshen Mishpat 226:6). One is even lechatchilah permitted to give someone a damaged coin or bill and hoard the nice-looking ones for himself, since it is not harming the other party in any way (Shulchan Aruch, Choshen Mishpat 227:6 and Sma).

Counterfeit money

However, this is true only when the bill or the coin is damaged, but is still legitimate and legal currency. It is forbidden to use counterfeit money, even if you ended up with it in error. Once you know that the currency you are holding is counterfeit, it is not only forbidden to use it, you are required to destroy it (Shulchan Aruch, Choshen Mishpat 227:18). It would seem to me that it is permitted to turn the counterfeit item over to the authorities for investigation and enforcement.

Calculated profit

According to what we have said until now, a person is obligated to know the market value of a product that he is selling and he will violate onaah if he sells it at a price that is clearly significantly above the market price. This means that one must constantly be aware of the fluctuations in market price of all items he is selling. Is there any way one can avoid having to be constantly aware of the market values of the items he is selling?

Yes, there is. It is permitted, halachically, to do the following: A seller may tell the purchaser, “This is the cost at which I acquired this item, and I add this percentage for my profit margin. Therefore, I arrive at the following price” (Bava Metzia 51b as explained by Rambam, Hilchos Mechirah 13:5; Shulchan Aruch, Choshen Mishpat 227:27).

(3) No recourse

Previously, I mentioned that there is a type of onaah in which a person is aware that he is being overcharged, but that circumstances force him to pay more than he should for the item. There are several examples of this. One is when a business or cartel creates a monopoly and then raises prices because they control the market. Since the halachos germane to this situation are somewhat complicated, I will leave this topic for a different time.

A second situation is when someone has a serious need for a product now – and the seller takes unfair advantage, insisting on a price that is well beyond what the item should fetch. For example, someone needs a medicine and can find it only at a certain place, which decides to increase the price tenfold, simply to gain huge, unfair profit. This is forbidden.

Was the seller wrong?

I once purchased a four volume reprint of an old, very hard-to-read edition of a relatively rare sefer. Subsequently, I discovered that the sefer had been reprinted in a beautiful format, a fact which the bookdealer must surely have known. Had I known that the new edition existed, no doubt that I would have purchased it instead. I will leave my readers with the following question: Was the bookdealer permitted to sell me the old edition without telling me that a new one exists? Does this qualify, halachically, as insider trading or deception, and is it therefore prohibited as onaah?

Conclusion

The Gemara tells us that the great tanna Rabbi Yehoshua, the rebbe of Rabbi Akiva, was asked: “What is the best means to become wealthy?” Rabbi Yehoshua advised that, aside from being very careful in one’s business dealings, the most important factor is to daven to He Who owns all wealth (Niddah 70b). A Jew must realize that Hashem’s Torah and His awareness and supervision of our fate is all-encompassing. Making this realization an integral part of our thinking is the true benchmark of how His kedusha influences our lives.

 

 




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.

 

 




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. .

 




The Mitzvah Snatcher

CHAPTER 1

A QUICK DAVENING

Yankel is in the year of mourning for his father and meticulously fulfills his filial responsibility to “daven in front of the amud.” Finding himself one day at a Mincha minyan in an unfamiliar neighborhood, he races to the amud before anyone else gets a chance. After davening, a nicely dressed gentleman hands Yankel a business card and asks if he can speak to him for a second.

“Are you new in the neighborhood? I don’t believe we have ever met before. My name is Irving Friedman.”

“Mine is Yankel Schwartz. No, I don’t live here. I was just passing through and needed a Mincha minyan.”

“Oh, I would like to make your acquaintance. Could I trouble you for your phone number?”

Not suspecting anything, Yankel provides Irving Friedman with his home, business, and cell phone numbers. Friedman then asks him for his home address, which arouses Yankel’s suspicion. “Why do you want to know?”

“Well, I guess I should be straightforward with you,” Irving continues. “I want you to be aware that you owe me a huge amount of money. You see, I have the chazakah of davening at the amud during this minyan. By grabbing the mitzvah, you stole from me nineteen brachos of the repetition of Shmoneh Esrei and two Kaddeishim, for each of which you owe me ten gold coins. I have made the exact calculation on the back of my business card. If you doubt that you owe me this money, I suggest you discuss the matter with your own rav. Since you look like an ehrliche yid, I assume that you will attempt to pay me before Yom Kippur. However, if that is too difficult, I am willing to discuss a payment plan. You have my phone number on the card.” With this, Irving Friedman (not his real name) got into his car and drove off.

A bit bewildered at this surprising turn of events, Yankel looked at the business card in his hand. The front of the card had Friedman’s name, business address, and the title and logo of his business. On the back, Yankel found the following hand-written calculation:

Invoice:

19 brachos @ 10 gold dinar coins each =                  190 gold dinar coins.

2 kaddeishim @ 10 gold dinar coins each=                 20 gold dinar coins.

Total                                                                            210 gold dinar coins.

Based on my research, these coins are worth between $24 and $200 each, in contemporary dollars (see Shiurei Torah, pg. 302.) This makes a total outstanding debt of between $5,040 and $42,000.

I am willing to accept the lower sum, and I am willing to discuss a payment schedule.

Yours sincerely, I. Friedman

CHAPTER 2

Yankel was shocked. He presumed that Irving Friedman was pulling his leg. Yet, Friedman’s demeanor about the entire matter had been so business-like that it did not seem Friedman was playing a prank on him. “Five grand for one Mincha. He must be kidding!!” was all Yankel could think.

Yankel now realized that his running to the amud was very presumptuous. Usually, one goes to the amud when asked by a gabbai, unless one has a regular chazakah to daven at the amud during that particular minyan. Yankel realized that his enthusiasm to get the amud had clouded his reasonable judgment.

Back in his own shul and on familiar turf, Yankel davened maariv at the amud uneventfully and then noticed his good buddy, Shmuel. Besides being a good friend, Shmuel was more learned than Yankel and would be able to help him sort out what had happened. Yankel told Shmuel about the day’s events and showed him the business card.

“I know that the Gemara talks about charging someone ten gold coins for snatching a mitzvah, but I never heard of someone trying to collect it,” was Shmuel’s surprised reaction.

“Where do you think Friedman got this dollar figure?”

“He has a note on the card quoting ‘Shiurei Torah, pg. 302.’ This is a sefer on the subject of halachic measurements. I don’t have the sefer, but let’s see if the shul has a copy.”

Sure enough, the shul library had a copy of Shiurei Torah by Rav Avrohom Chayim Na’eh, one of the gedolei poskim in Eretz Yisroel about sixty years ago. Shmuel located the chapter where the sefer discusses the halachic sources for determining the value of “ten gold coins,” and indeed, Friedman’s calculations were based on the conclusions of Shiurei Torah.

“What should I do? $5,040 is a lot of money. Do I really owe him this much money because I davened Mincha without checking if someone else had a right to the amud?” Yankel asked his friend.

“Maybe discuss the issue with the Rav.”

CHAPTER 3

Still very disturbed about the matter, Yankel called Rav Cohen to schedule an appointment. By now, he regretted his rash Mincha davening, and realized that it is far more important not to infringe on someone else’s mitzvah than to daven at the amud.

At the appointed time, Yankel arrived at Rav Cohen’s office and explained the whole story, showing him the calculation on the back of the business card.

Rav Cohen noticed a halachic flaw in Mr. Friedman’s argument, but felt that Yankel would benefit more if he found out this information a bit later. The sage knew that this was not the first time that Yankel’s impetuous nature had gotten him into trouble. This situation might help him realize not to be so rash.

Rav Cohen introduced Yankel to the halachic issues involved. “As we know from the Chumash, someone who shechts a bird has a mitzvah of “kisui hadam,” to cover the blood with dirt. The Gemara (Bava Kamma 91b) tells us a story of a shocheit who shechted a bird and then, before he had a chance to fulfill the mitzvah of covering the blood, someone else covered it, thus snatching the mitzvah. The shocheit brought the offending party to a din Torah where the great Tanna Rabban Gamliel presided. Rabban Gamliel ruled that the ‘mitzvah snatcher’ must pay ten gold coins for taking someone else’s mitzvah.”

“But in that case he is being fined for taking away his mitzvah, not for the bracha,” Yankel countered.

“Actually, the Gemara (Chullin 87a) asks exactly this question. The Gemara cites a case where someone grabbed someone else’s right to lead the bensching. In the time of the Gemara, when a group of people bensched together, one person recited the entire bensching aloud, and the others listened attentively and answered amen when he finished each bracha. By hearing the brachos of the person reciting the bensching, they fulfilled their obligation to bensch.

“In this instance, someone else began bensching other than the person who had the right to bensch. The Gemara discusses whether the person who bensched must compensate for one mitzvah, which is ten gold coins, or for four brachos, which is forty coins.”

Yankel, now keenly aware of the difference between ten coins and forty, lets out a sigh.

“How does the Gemara rule?” asked Yankel, hoping that the Gemara would rule in his favor and save him a lot of money. After all, if the Gemara rules that the entire bensching is only one mitzvah, his nineteen snatched brachos, which are only one mitzvah, are worth only ten gold coins. However, if the Gemara rules that he must compensate per bracha, he must pay 190 gold coins. By some quick arithmetic, Yankel figured that this saves him at least $4,500! He had never before realized before how much a Gemara discussion might be worth.

Rav Cohen realized what was going through Yankel’s head. “Well, there are other issues that impact on your case, but …. the Gemara rules that he must pay forty gold coins.”

The ramifications of this ruling were not lost on Yankel. “But what is he paying for? He didn’t take anything.”

“That is a really good question,” responded the Rav patiently. “Rashi (Chullin 87a) explains that the mitzvah snatcher is paying for the reward that he deprived the other person of when the mitzvah was taken away.”

“I didn’t know you could put a price tag on a mitzvah’s reward,” Yankel blurted out. “The reward for a mitzvah is priceless!”

The Rav could not miss this opportunity. “If that is so, then you are really getting a very good bargain.”

“Why?”

“What is worth more, the mitzvos one observes, or the money being paid as compensation?”

“Put that way, I must admit that it is a bargain. But it is still a very expensive bargain!”

Yankel continued. “Are there any other instances of collecting money for someone taking away a mitzvah?”

“The Gemara discusses a din Torah raised by a person whose tree was overhanging a public area and could cause potential damage. Before he could trim the tree, someone else chopped down the problematic branches. The owner placed a claim in beis din against the chopper for snatching his mitzvah. The beis din sided with the owner that his mitzvah was indeed snatched.”

“Shmuel told me that he never heard of anyone collect money for snatched mitzvos. Is there any discussion after the time of the Gemara about collecting for snatched mitzvos?”

Tosafos discusses a case when someone was ‘called up’ for an aliyah, and another person went up for the aliyah instead, thus snatching two brachos away from the person who had a right to them.”

“What chutzpah!” blurted out Yankel. Then, realizing the hypocrisy in his reaction, he added. “I shouldn’t be the one to talk. If I had a little less chutzpah, I wouldn’t have gotten into such hot water.”

“Whatever happened to this aliyah snatcher?” queried Yankel.

“How much do you think he should have paid?” replied the Rav, cunningly waiting for the best time to reveal the rest of the story.

“Well, based on the bensching case where he paid forty coins for four brachos, I would imagine the aliyah snatcher should pay twenty coins for two brachos, one before and one after the aliyah.”

“You are catching on really well,” complimented the Rav.

“Well, if I do end up financially poorer for this experience, at least I should end up a bit wealthier in Torah learning,” concluded Yankel. “But what do the poskim rule?”

Rav Cohen decided it was now time to let Yankel in on the secret. “There is a dispute in this question between Rabbeinu Tam and his nephew, Rabbeinu Yitzchok. Rabbeinu Yitzchok rules exactly like you contended – the aliyah snatcher must pay twenty gold coins. However, Rabbeinu Tam ruled that he is not required to pay at all (Tosafos, Bava Kamma 91b s.v. vichiyavo).”

Yankel was on the edge of his chair. Maybe Rabbeinu Tam would be his savior!

“How did Rabbeinu Tam get him off the hook?” was all Yankel wanted to know.

Rav Cohen leaned toward Yankel, asking him, “Which act earns more reward, reciting a bracha or answering amen?”

“I would assume reciting the bracha,” responded Yankel, “But because of the way you asked the question, I must be wrong.”

“Indeed, the Gemara (Berachos 53b) declares that it is greater to recite amen than to recite the bracha. Rabbeinu Tam understands this to mean that the person who answers amen receives more reward than the person who recites the bracha! He therefore concludes that the person who snatched the aliyah need not pay, since the person who should have received the aliyah would receive even more reward for reciting amen to the bracha. Remember, the compensation is for losing reward, and the aliyah snatcher did not take away any reward.”

“One second,” blurted out Yankel, “The guy who covered the blood also didn’t stop the shocheit from reciting amen. Why did he have to pay?”

“That is a really good question that the later poskim ask. There are two very different approaches to explain why Rabbeinu Tam agrees that the blood coverer must pay the shocheit. Some contend that he recited the bracha in a way that the shocheit did not hear the bracha and that is why he must pay. According to this approach, had the shocheit heard the bracha, he would not collect compensation for losing his mitzvah.

Others contend that the shocheit has two different claims, one for the mitzvah and the other for the bracha. Answering amen provides an even greater reward than reciting the bracha, so the shocheit does not collect for missing the bracha. However, the shocheit still lost the reward for performing the mitzvah, and for this loss he deserves compensation (Sma 382:7; Shach and other commentaries ad loc.).”

“Is this why Shmuel said he never heard of someone trying to collect ten gold coins for a snatched mitzvah?”

“No. Actually, the reason for this is a bit complicated,” began the Rav. “Technically, only a beis din whose members received the original semicha that Moshe Rabbeinu conferred to Yehoshua can enforce a financial claim. Since we no longer have this semicha, this would mean that no one could ever collect damages or a bad debt. To avoid this problem, Chazal instituted that one can collect damages or debts through any beis din. However, Chazal instituted this method of collecting only when a person suffered out-of-pocket losses, as he does in the case of a bad debt or an injury. When someone took another person’s mitzvah, however, although this is a real loss, there was no out-of-pocket loss. The result is that a mitzvah snatcher owes money and should pay it, but there is no way to force him to pay the debt (Tosafos, Bava Kamma 91b s.v. vechiyavo). However, since there is definitely a moral obligation to pay, the aggrieved party is permitted to seize property as payment.”

Yankel nodded, showing that he understood. “In conclusion, according to many opinions, I owe Mr. Friedman a considerable amount of money. Does it make any difference that I was unaware that he had the right to the amud and didn’t know that I could become obligated to pay a huge sum of money?”

“It should not make any difference, since you owe him for taking away his reward, which is something that you did whether you realized it or not.”

“Do I also owe him for the two kaddeishim? These are not brachos,” inquired Yankel.

“It would seem that Mr. Friedman considers them to be mitzvos, and from his perspective he is probably right. It is true that whether one snatched someone else’s bracha or his mitzvah, one is required to pay compensation for his lost reward. However, it is not clear from the poskim whether one must pay for depriving someone of a mitzvah that is not min haTorah (Yam Shel Shelomoh, Bava Kamma 8:60).”

“What about the fact that he said amen to my brachos. Does that get me off the hook? Do we paskin like Rabbeinu Tam?” The hope in Yankel’s voice was very obvious.

“Actually, there is a big dispute among poskim. Many rule like Rabbeinu Tam, but this is certainly not a universally held position (see Shulchan Aruch, Choshen Mishpat 382 and commentaries).”

“What does the Rav paskin in this situation?”

I would suggest that one follow the decision of the Taz (end of Choshen Mishpat 382), who says that you should contact Mr. Friedman and apologize, and offer some compensation (Aruch Hashulchan 382:7).”

Yankel phoned Irving Friedman. After a few pleasantries, he apologized for having taken the “amud” from him that fateful afternoon, and discussed the conversation he had with Rav Cohen. He offered him some financial compensation, but far less than $5000, which Friedman accepted, and that was the last time Yankel “chapped” an amud without asking beforehand.