Is a Will the Halachic Way?

Would Yitzchak (and ultimately klal Yisroel) have been better off had he written up, in advance, a will, clearly determining how he wanted his spiritual and temporal properties to be divided?

Should one write a will?

May one distribute one’s estate differently from the way the Torah instructs?

SHOULD A JEW WRITE A WILL?

Before answering this question, we should clarify what would happen if one left no legally binding will. For example, who becomes the legal guardian of one’s minor children? The law may prescribe a very different solution than what one would want to happen, with potentially catastrophic results. After discovering this possibility, the need to have a will usually becomes obvious.

Another question to resolve is what happens to one’s property if one leaves no will. Each state and country has different laws determining who takes possession of the property of a person who dies without having left a will. One thing is virtually certain: The division followed by a court will not follow halacha. Probate court will almost certainly award part of or the entire estate to someone who is not halachically entitled to it. Since there is no reason to assume that the halachic heirs should want to forgo their rightful ownership, someone will receive property that is not rightfully his or hers.

SOME YERUSHA BASICS

In order to understand why the wrong person ends up with the property, we must first understand who should be the halachic heir. Many people are surprised to discover that halacha distributes inheritance very differently from modern legal procedure.

According to Torah Law, property is bequeathed as follows: Sons or heirs of sons inherit everything, even if there are daughters (Bava Basra 115a). (Yes, this means that a granddaughter who is the daughter of an already deceased son inherits Grandpa’s estate ahead of Grandpa’s own daughter, an anomaly that the Gemara itself notes [Bava Basra 115b].)

If there is more than one son, the father’s bechor, firstborn son, receives a double portion in much of his father’s properties, but not his mother’s. This means that if there are three sons, including the firstborn, the property is divided into four portions, and the firstborn receives two. (Who qualifies as a bechor for these laws, and in which properties he does or does not receive an extra portion, are topics to be dealt with a different time.) If there are no sons or heirs of sons, then the daughters inherit, and if there are no surviving daughters, then their heirs do (Bava Basra 115a). If the deceased left no surviving descendants, the father of the deceased is the beneficiary of the entire estate (Bava Basra 108b). If the father has already passed on, then the paternal brothers inherit; if there are no brothers, their progeny are next in line. If no brothers or offspring survive, then paternal sisters and their children are the heirs. If the deceased’s father has no surviving progeny, then the deceased’s paternal grandfather and his descendants become the beneficiaries, again following the same pattern.

HUSBAND INHERITING

There is one major exception to these rules of yerusha – a husband inherits most assets left by his deceased wife. (Again, I will leave the exceptions for a different time.) This is true even if she has children, and even if her children are from a previous marriage. There are many ramifications of this rule, which can be the subject of a full-length halachic/legal treatise, and certainly reflect a very different hashkafah, perspective, on fiscal decision making than what is politically correct in today’s world.

DAUGHTERS

Although daughters are not heirs when there are sons, minor daughters receive support from their father’s estate. In addition, the estate provides for the wedding and related expenses of all unmarried daughters. Beis Din estimates the amount of these gifts based on the father’s means and how much he provided, while still alive, for the older sisters’ weddings (Kesubos 68a; cf., however, Tosafos, Kesubos 50b).

A widow does not inherit from her husband; instead, her late husband’s assets provide for her, until she shows interest in remarriage. At that time, she may collect her kesubah.

PATRILINEAL RELATIVES

Note that all halachic heirs follow the father’s line and not the mother’s (Bava Basra 108a; Shulchan Aruch Choshen Mishpat 276:4). Thus, if an only child, whose father is also an only child, died, his heir will be a cousin on his paternal side, and not his closer relatives on his mother’s side.

Yankel (not his real name) once asked me the following shaylah: “My half-sister, who is my mother’s daughter, passed on, leaving all her property to her caretaker. The family members are contesting the will, and would like me to join their lawsuit. May I?”

I noted that there is no halachic point in his participating in this litigation, even if Beis Din authorized the suit. Even assuming that the will is indeed worthless, Yankel has no halachic claim to the money, since only relatives on the paternal side have halachic claim to the estate, and he is related on her mother’s side. Therefore, any properties he receives would actually belong to someone else. In this instance, bitachon must teach one that although civil law may consider the property to be yours, the ratzon Hashem is that to keep it is tantamount to stealing!

CHOOSING ONE’S HEIRS

According to civil law, a person may choose his heirs and thereby distribute his earthly wealth after he passes on. However, according to the Torah, a person cannot technically choose his heirs, nor distribute property after his demise. When a man dies, the Torah instructs who owns his assets according to the laws of yerusha presented previously.

If a person cannot create his own heir, does this mean that it is impossible to influence who eventually receives his assets? No, since there are several halachically acceptable methods of transferring property to someone who is not a halachic heir. Most of the methods take affect by creating some form of gift while the benefactor is still alive. Exactly how each method works, and the relative advantages and disadvantages of each approach, is a complex topic, beyond the range of this article. Certainly prior to finalizing a will drafted by an attorney, one should ask one’s rav whether there are any halachic concerns with the will’s goals, and what needs to be added (or changed) to validate it halachically. It is even better to speak to one’s rav before drafting the will for direction on some of the halachic issues involved.

Let us now examine the second question I raised above:

MAY ONE DISTRIBUTE ONE’S ESTATE DIFFERENTLY FROM WHAT THE TORAH INSTRUCTS?

Granted that one can change how one’s estate is to be divided, is it halachically correct to do so? Does the Torah require us to follow its yerusha laws, or are these merely default procedures if someone made no other provisions?

We can answer this question by analyzing the following incident:

Rav Papa was negotiating a shidduch for one of his sons (he had ten) with the daughter of Abba Soraah. When Rav Papa traveled to discuss the dowry Abba Soraah would provide, he was accompanied by Yehudah bar Mareimar, who declined to enter Abba Soraah’s house. Rav Papa invited Yehudah bar Mareimar to join him, but Yehudah bar Mareimar declined the invitation.

Rav Papa then asked Yehudah bar Mareimar, “Why do you not want to join me? Is it because you feel that my negotiating violates Shmuel’s ruling, ‘Do not be among those who transfer inheritance, even from a sinful son to a good one, since one never knows – perhaps the bad son will raise fine children?’” Following Shmuel’s ruling, one should certainly not transfer property to the daughter that rightfully belongs to the son. “However,” continued Rav Papa, “this is not a correct application of Shmuel’s rule, since there is another rabbinic ruling of Rabbi Yochanan quoting Rabbi Shimon ben Yochai that encourages people to provide substantial dowries for their daughters.”

Yehudah bar Mareimar responded, “Indeed Rabbi Yochanan ruled that we encourage men to provide their daughters with dowries — but we do not pressure them to do so” (Kesubos 52b- 53a).

We can derive several principles from this passage:

1. One should provide for one’s daughter in order to encourage her marriage, even when this reduces the amount available for inheritance.

2. One should not pressure someone to provide a substantive dowry for his daughter’s shidduch.

3. Although one can disinherit an heir, Chazal discourage this practice, even if the heir is an evil person, since he may have righteous children who should not be deprived of their just portion. One is certainly discouraged from transferring the inheritance to someone who is not a halachic heir at all.

The Shulchan Aruch codifies this last rule: “The Sages are displeased with someone who gives away his property to others and abandons his heirs, even if they do not treat him properly” (Choshen Mishpat 282:1; note comments of Sm’a, and Shu’t Chasam Sofer, Choshen Mishpat #153).

The authorities dispute whether this prohibition applies only to the testator or includes even others who assist him in transferring the inheritance. According to the Chasam Sofer, a rav who teaches how to transfer inheritance violates this rabbinic prohibition! (Shu’t Chasam Sofer, Choshen Mishpat #153; cf. Shevet HaLevi 4:116, who quotes authorities who disagree.)

 

SHTAR CHATZI ZACHOR

An old custom, dating back hundreds of years, was to draft a shtar chatzi zachor, which provided daughters with half of what their brothers inherit. (The words shtar chatzi zachor mean a document providing half that of a male child.) Several early authorities approve this practice, even though it transfers property from the male heirs, because providing for one’s daughters enhances their chance of finding suitable shidduchin (Shu’t Maharam Mintz #47, quoted by Nachalas Shivah 21:4:2). Although Rabbi Shimon ben Yochai, quoted in the above Gemara, encouraged providing only a dowry for one’s daughter and made no mention of inheritance, these poskim contend that knowing that she will eventually inherit also entices a potential groom. (However, note that Shu’t Maharam Rottenberg #998 disagrees with this approach, implying that he would object to the practice of shtar chatzi zachor.)

CONTEMPORARY PRACTICE

It is now common for wills to provide equally for all children, both sons and daughters, and to ignore the bechor’s double portion. Contemporary poskim suggest that one should follow whatever practice is necessary to avoid a machlokes caused by unrealized expectations, and advise asking a rav for direction (Gesher HaChayim, 1:8; MiDor LeDor pg. 36). Many authorities recommend that one set aside a small amount of property to be divided according to the laws of yerusha (based on Tashbeitz end of 3:147, quoted by Ketzos HaChoshen 282:2).

The Gesher HaChayim records a story of a talmid chacham who wanted his estate divided exactly as the Torah instructs, legally arranging that his bechor should receive a double portion and that only his sons, and not his daughters, receive inheritance. Unfortunately, the result of this distribution was a legacy of machlokes that created a tremendous chillul Hashem. For this reason, the Gesher HaChayim recommends that a person divide his estate among his children in a way that maintains shalom.

ABANDONING HEIRS

Other than the two reasons mentioned above, (1) encouraging daughters’ shidduchin (2) maintaining harmonious relationship among family members, halacha frowns strongly on disinheriting the rightful heirs in favor of those who are not, and disapproves of providing more for one heir at the expense of another (Rashbam, Bava Basra 133b). In order to explain this better, let us examine the following case:

Mr. Rubinstein, who has no children, would like to divide his estate equally among all his nephews and nieces. However, only some of his nephews are his halachic heirs, those who are sons of his brothers. The nephews who are sons of his sisters are not halachic heirs, nor are any of his nieces. If Mr. Rubinstein divides all his property among all his nephews and nieces evenly, he has violated Chazal’s concept of not transferring inheritance, since he has given away his halachic heirs’ portion to those who are not his heirs.

Note that in this case, the two reasons that permit transferring inheritance do not apply. Mr. Rubinstein is not obligated to provide for his nieces’ marriages nor is it likely that limiting his will to his halachic heirs will create a family dispute.

May Mr. Rubinstein give most of his estate to his nieces and sisters’ sons, as long as he bequeaths some according to the laws of yerusha? The halachic authorities debate this question, some maintaining that one may give a large part of one’s estate to those who are not halachic heirs, provided that each heir receives some inheritance. According to this opinion, Mr. Rubinstein may dispose of his property any way he chooses, provided he leaves part of the estate according to the laws of yerusha.

Other authorities prohibit any action that deprives the halachic heirs of their rightful portion (Shu’t Chasam Sofer, Choshen Mishpat #151). Furthermore, it should be noted that the prohibition against transferring inheritance applies even when the heirs are not his sons (see Shu’t Chasam Sofer Choshen Mishpat #151; Aruch HaShulchan, Choshen Mishpat 282:3; Shu’t Shevet HaLevi 4:116).

TZEDAKAH

Is it considered abandoning one’s heirs if one bequeaths sizable amounts of one’s estate to tzedakah?

Some authorities contend that it is not, and one may leave even one’s entire fortune to tzedakah. The reason for this approach is very interesting.

A person has no obligation to acquire assets in order to fulfill the mitzvah of yerusha. Furthermore, one has the right to use up all one’s financial resources, while alive, in any way one chooses and leave nothing to his heirs. After all, as owner of the property he is free to do with it as he sees fit.

Donating tzedakah, reasons the Chasam Sofer, is using money for oneself, since all the merits accrue to the donor. Just as one may use his resources for himself however one chooses, so may one donate all the resources that he will no longer need to tzedakah, without violating the prohibition of transferring inheritance. The Chasam Sofer reasons that this is equivalent to the testator keeping the property for himself, since he receives all the reward for the tzedakah he gives (Shu’t Chasam Sofer, Choshen Mishpat #151). (From this perspective, you can take it with you!!)

However, although some earlier authorities (Rama, Yoreh Deah 249:1) concur with the Chasam Sofer’s conclusions, others contend that one should limit his tzedakah bequests to one third or one half of one’s assets (Rabbi Akiva Eiger ad loc., quoting Sheiltos; Chachmas Odom 144:12). Still others feel that one should not give substantial amounts of tzedakah at the expense of the heirs, unless the heirs are acting inappropriately (Shu’t Maharam Rottenberg #998).

CONCLUSION

It is important to realize that one’s legal rights and responsibilities are not governed by secular law. A Torah Jew understands that Hashem’s Torah is all-encompassing, and that it directs every aspect of one’s life. Thus, one should discuss with one’s rav all aspects of the important shaylah — how to draw one’s will.




Get Rid of the Stuff!

or

The Vanishing Importer and Other Tales

Dovid calls me with following shaylah:
”Several years ago, Yonasan asked permission to store some items in my basement for a few months. The items are still in my basement, and I have no idea where Yonasan now lives. I have tried to contact him without any success. How do I get rid of his stuff? I need the space for other things.”

People have often asked me this or similar questions, where someone ends up with someone else’s unwanted property on their premises. The issue is that two people’s rights are in conflict with one another. On the one hand, Dovid has a right to regain the use of his basement; yet, on the other hand, we cannot ignore Yonasan’s ownership rights.

We will see that although the halachos in these cases are complicated, we will be able to understand some of the rules involved.

In order to answer Dovid’s shaylah, we need to determine several halachic factors:

1. Was Dovid originally responsible for taking care of Yonasan’s items?

2. Assuming he was once responsible, is he still responsible?

3. If we assume that he is no longer responsible, or was never responsible, may he remove the items from his premises? What may he do with them if he removes them?

The Tanna’im (Bava Kamma 47) dispute whether or not granting someone permission to place belongings on my premises makes me automatically a shomer chinam, an unpaid watchman. The Sages contend that when I tell someone that he can place his items in my yard, the unstated assumption is that I am accepting responsibility for the items. If the item is subsequently lost or stolen through the homeowner’s negligence, he must pay for it, even though he was not paid to guard the item. Rebbe disagrees, contending that permitting someone to place items on my property is not equivalent to accepting responsibility for them.

Most halachic authorities conclude that if one offered to store items in his house, he has assumed some level of responsibility, but if he offered to store them in his yard, he has not assumed responsibility (Shach, Choshen Mishpat 291:8; cf., however Machanei Efrayim, Shomrim #4, who rules that he is not responsible in the house either). Thus, when Yonasan placed his items in Dovid’s basement, Dovid became a shomer chinam on those items, and is obligated to pay if he is negligent in taking care of them. As a result, if Dovid left the house unlocked one day and someone entered and stole Yonasan’s property, Dovid would be obligated to compensate Yonasan. By the way, Dovid could avoid this responsibility by simply telling Yonasan that although he may place items in Dovid’s house, Dovid is assuming no responsibility and is not a shomer.

HOW LONG DOES DOVID REMAIN RESPONSIBLE?

In our case, Yonasan asked permission to store his items in Dovid’s house “for a few months.” Assuming that Dovid really believed that Yonasan would remove his items at that time, he is no longer a shomer when the time is over and is no longer responsible for negligent damages (Machanei Efrayim, Shomrim #19). However, this does not mean that Dovid can now remove Yonasan’s items and place them on the street, because that would be considered as damaging Yonasan’s property, which is prohibited.

Let us compare this case to a fascinating anecdote of the Gemara:

THE CASE OF THE HAPLESS LADY

The Gemara (Bava Metzia 101b) relates the following episode. A businessman, whom we will call Mr. Wine, purchased a shipload of kosher wine and could not find a place to store it. When he asked a local woman, Ms. Storage, if he could rent warehouse space, she was initially unwilling to rent him the space, and only agreed after he consented to marry her. After this “marriage of convenience,” Mr. Wine promptly divorced Ms. Storage. She retaliated by selling some of the wine and using the proceeds to hire porters to move the wine into the street. When Mr. Wine summoned Ms. Storage to a din Torah for selling his wine to pay for the portage, Rav Huna, the son of Rav Yehoshua, ruled that since he tricked her into storing his goods, he had no monetary claim against her, and that she indeed had the legal right to remove the wine from her premises at his expense. As we will see, it is unclear whether she could remove the wine from her premises if this would cause the wine to be stolen or damaged.

In the above situation, because Mr. Wine discovered immediately what she had done, he suffered no further loss. Would Ms. Storage have been liable to pay if the wine was stolen before Mr. Wine discovered that it was in the street?

The Rosh rules that although Ms. Storage may remove the wine from her premises, she is liable for any loss that occurs until she notifies Mr. Wine that she has removed the wine. Therefore, the Rama rules that she must notify Mr. Wine before removing his wine from her premises.

Obviously, this ruling places Ms. Storage in an unenviable position if Mr. Wine leaves town and cannot be contacted. Although he tricked her into storing her goods, she cannot remove his items and place them where they may be damaged.

Not all authorities agree with the Rosh’s opinion. The Taz (Choshen Mishpat 319) contends that if someone stored property on your premises without your permission and it is in a place that you need, you may remove his property without being concerned about the loss he suffers as a result. (This is based on his understanding of the Rambam; note that some other poskim interpret the Rambam differently.) According to the Taz’s approach, Ms. Storage could have placed the wine in the street without notifying Mr. Wine, without any financial responsibility or risk. The line of reasoning behind the Taz’s approach is interesting.

The Gemara (Bava Kamma 27b) rules that “avid inish dina linafshei,” a person has the right to protect his own property. Thus if a person or his animal is damaging my property, I may use necessary force to remove him or his animal from my property.

Similarly, the Taz contends that one may remove items placed in my property if I do not want them there. However, Rav Moshe Feinstein (Shu’t Igros Moshe, Choshen Mishpat 2:56) appears to disagree with the Taz, contending that one does not have the right to remove someone else’s property and place it in the street. Rav Moshe’s responsum is in the context of a different, interesting case.

THE CASE OF THE VANISHING IMPORTER

A distributor asked Rav Moshe the following shaylah: “An importer/supplier asked me to store some merchandise for a couple of months and I agreed; but I neglected to get his address and phone number. A year later, the importer returned, very apologetically explaining that he was delayed and thought he would return sooner. In the middle of the conversation, the importer said, ‘I must take care of something. I’ll be back in a few minutes.’ He disappeared once again and has not returned since. It is now months later and I need to make room for my own merchandise. What can I do with his property?”

Rav Moshe compares the distributor’s predicament to the Case of the Hapless Lady. He contends that even in that case, one may not remove the wine to a place where it could be stolen unless one first notifies the owner. He further concludes that if Ms. Storage cannot locate Mr. Wine, she may not move his wine to the street. However, Rav Moshe rules that she could move his wine to an alternative warehouse and sell some of the wine to pay the portage and rent. Similarly, Rav Moshe rules that in the Case of the Vanishing Importer, the distributor may sell some of the importer’s goods to pay the moving costs and rent a different warehouse.

The Pischei Choshen (Hilchos Pikadon:7:ftn6) disagrees with Rav Moshe, contending that instead of selling some of the merchandise to rent storage space, one should sell all of the merchandise and hold the money for the importer’s return. (Certain other details must be followed in carrying out this sale.) Both approaches assume that one may not sell the importer’s merchandise if the distributor has available storage space, but dispute which approach is better if the distributor has no available space. Even though the importer took unfair advantage, the distributor may not treat the importer’s possessions with disregard.

Rav Moshe’s dispute with the Pischei Choshen what to do with the importer’s goods hinges on which of the following two rulings applies in our case. In the Case of the Hapless Lady that we mentioned above, the Rambam rules that although Ms. Storage need not notify Mr. Wine, it is commendable (midas chasidus) for her to inform Beis Din that she will be removing his wine from her premises. The Beis Din then proceeds to sell some of the wine and thereby pay for the portage and storage. Rav Moshe explains that Ms. Storage may do this herself if she wants, but that if she does not want to bother, all she is required to do is to notify Beis Din that she will be removing the wine from her premises. If Mr. Wine cannot be located, either Beis Din or Ms. Storage may remove his wine to a secure warehouse, paying for the portage and storage from the merchandise.

The Pischei Choshen contends that one sells the merchandise to pay rent only when its owner knew he would be paying rent until he returns — therefore he has no major unexpected loss from using an alternative warehouse. However, this is qualitatively different from the Vanishing Importer who may not have realized that he would be paying rent. The Pischei Choshen therefore compares the Case of the Vanishing Importer to a different Talmudic discussion where a shomer is responsible for produce whose owner is unaware that it has begun to spoil. In this case, since the owner will suffer from an unexpected major loss, the shomer sells the items under the supervision of a Beis Din to try salvaging whatever he can, and then the shomer holds the money for the owner until his return (Bava Metzia 38a). (The halacha is that the shomer may borrow the money, obviously interest free, until the owner returns [Shulchan Aruch, Choshen Mishpat 292:19].)

The Pischei Choshen contends that since the distributor is not obligated to store the importer’s items at a loss, and there is no place to store them for free, we are left with two possible courses of action, one of which we will eliminate:

1. Rent a storage facility paid for by gradually selling the merchandise. This will eventually erode the remaining value.

2. Sell the merchandise, thus recouping some value for the importer.

Since we cannot contact the importer, or know when he will return, the Pischei Choshen elects the second option as the correct halachic approach.

In Dovid’s original case, Yonasan had asked him to store his items for a few months, a timetable that passed several years ago. Thus, one can compare his predicament to the case of the Vanishing Importer, which would allow Dovid to follow one of the suggested procedures to save Yonasan from a loss: either to sell some of the property and thereby rent storage space (Rav Moshe’s approach), or to sell it all and hold the money (Pischei Choshen’s approach).

However, this is true only if the loss Yonasan would suffer is because Dovid must have the space available for some other purpose. If Dovid is simply annoyed by the cluttered basement, he has no halachic basis with which to remove Yonasan’s property.

Another complication usually occurs in these situations: If Dovid did not specify the length of time he is lending use of his premises, he is presumably still the shomer of Yonasan’s property and is still liable for any negligence, and certainly would be liable if he damaged the property. This is qualitatively different from the Case of Hapless Lady and the Case of the Vanishing Importer, where the homeowner is not a shomer.

The Pischei Choshen (Hilchos Pikadon:7:ftn5) asks whether in a case like this Dovid is required to be a shomer forever.

I attempted to find a source that would relieve Dovid of his responsibilities in this very common case. I have thus far been unsuccessful. The closest parallel I have found is the following case:

Yehudah agreed to be a shomer on someone’s property; now he wants to leave town and cannot take the item with him. What does he do? The Rambam (Hilchos She’eilah 7:12) rules that agreeing to watch an item does not make you a prisoner in your home; you have a right to leave. What does Yehudah do? He brings the item to Beis Din which then assigns it to the care of a reputable person.

However, this ruling is applicable only if the shomer wants to leave town and can no longer supervise the item. I have found no other halachic source that discusses how one can terminate one’s shmirah of an item when the shomer remains in town, and the owner is unaware that one wants to terminate responsibility.

THE CASE OF THE CARRY-ON LUGGAGE

This leads us to the following shaylah. What is the halacha in the following situation? At the airport gate, you agree to watch someone’s carry-on bag so he can use the comfort facilities. Forty-five minutes later, your plane is boarding, and the bag owner has not reappeared. Must I miss my flight because I agreed to watch his bag? What do I do with the bag?

In this carry-on case, I think one can assume that when someone asks me to watch an item at an airport gate, he knows that I can watch the item for only a brief period of time. If one needs to leave and the bag owner has not returned, I would recommend alerting airport personnel and letting them decide what to do, and at the same time leaving a note where you were sitting. Abandoning the bag will probably cause it to be stolen or impounded and destroyed by airport security, and I suspect that airport Lost and Found is also not a good alternative.

By now, I think we have become convinced of the necessity for clarifying our responsibilities in advance when someone asks us to watch their item or leave something at our house. Of course, realizing the complications that may result should not cause us to reconsider doing chesed for people; simply, we should be certain to do it in such a way that we do not create unnecessary entanglements.




Can You Be Paid for What You Did Not Do?

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

Can you be paid for what you did not do?

From the halachic literature:

Case #I: The Scheming Seamstress

Rivka hired a seamstress, Mrs. Chait, to sew a custom-made gown for her daughter’s wedding. Then, Mrs. Chait realized that she had too many orders and asked a second seamstress, Mrs. Snyder, to make the gown. Although Mrs. Snyder requested a lower fee, Mrs. Chait charged Rivka her higher price, intending to pay Mrs. Snyder the lower wage and keep the difference. Rivka feels she should not pay Mrs. Chait anything, since Mrs. Chait did no work, and that she (Rivka) only needs to pay what Mrs. Snyder charged. Mrs. Snyder would like to receive the full wage Rivka was planning to pay Mrs. Chait. What is the halacha?

Case #II: The Congregations and the Cantors

Congregation Ohavei Kol engaged the renowned Chazzan Shatz to daven Musaf for Yomim Norayim. Subsequently, Congregation Shachein Tov hired him to daven Shacharis at their shul. The chazzan contended that davening Shacharis at Shachein Tov would not have a negative effect on his Musaf at Ohavei Kol. However, after Rosh HaShanah, Ohavei Kol contended that the Chazzan’s Musaf was less melodious than they were expecting, since he was tired from Shacharis, and that he must decline the Shacharis job for Yom Kippur. Chazzan Shatz agreed, in order to not jeopardize his wages from the better-paying Musaf job. However, Shachein Tov was dissatisfied with the last- minute substitute they arranged for Shacharis in their shul on Yom Kippur.

After the High Holidays, the two congregations and the two cantors began some unholy negotiations. Chazzan Shatz contended that both congregations should pay him the agreed amounts, less what the substitute bal Shacharis received. Congregation Ohavei Kol deducted substantially from the chazan’s pay, claiming that they received an inferior Rosh HaShanah Musaf than what they had originally negotiated. Shachein Tov claimed that they should not pay the chazzan anything since he did not fulfill his contract with them, and furthermore, his backing out caused them to have an unsatisfactory Yom Kippur davening. How would you rule if you were the dayan?

Case #III: Is the Gelt Glatt?

The Rav HaMachshir of Glatt Kosher Inc. contacted one of his regular mashgichim, Rabbi Gold, to oversee a special production. With Glatt’s knowledge, Rabbi Gold hired a substitute, Monish Key, to oversee the production. Rabbi Gold subsequently charged Glatt his standard fee, and then paid Mon Key peanuts. Glatt claims that this was not glatt and that Rabbi Gold is not entitled to any more than what Monish received.

ANSWER

All three of these actual cases entail the issue of whether one person can collect wages for work performed by another. As we will see, the exact rules governing these halachos are very subtle and sometimes disputed, and a small variation in circumstances can change the halacha. But first we need to analyze the Gemara involved.

THE CONTRACTOR

The Gemara (Bava Metzia 76a) discusses the following circumstance: A businessman instructed his supervisor to hire day laborers at the rate of three dinarim a day. The supervisor subsequently discovered that the market rate for laborers was more than three dinarim, but he was unable to contact the owner for approval to pay more. The supervisor therefore promised the laborers that he personally guaranteed that they would receive four dinarim. The Gemara concludes that since the supervisor guaranteed the laborers’ wages, he must pay them four dinarim; he then collects from the owner “as much as the owner benefited,” an ambiguous term which then becomes subject of a dispute among the Rishonim. Shulchan Aruch (Choshen Mishpat 332:1) concludes that it means whatever the owner was willing to pay; in his opinion the owner compensates the supervisor only three dinarim per worker, and the supervisor absorbs the difference. However, most poskim rule that “as much as the owner benefited” means the market rate for laborers, since this is what the owner would have been forced to pay, had he hired the workers himself.

The question, now, is what happens if the market rate for laborers is five dinarim per day, and the supervisor convinced them to work for only four? Does the supervisor receive five dinarim per day per laborer, since this is what the owner benefited, or does he receive only four, which was his actual out-of-pocket cost? The Rama concludes that the supervisor receives only what he paid, and no more. Although the owner technically benefited five because of the supervisor’s adept negotiating, the supervisor cannot claim greater compensation than his actual cost (Tur ad loc. quoting Ramah). Thus we see that although the owner should be obligated to pay the supervisor according to the usual value of market labor, which is five, he is not required to pay more than the supervisor actually spent. Thus, the supervisor cannot make a profit by marking up labor for work he did not perform.

At this point, we can now follow the footsteps of the poskim and analyze our first case. Remember our seamstress? Mrs. Chait, the first seamstress, passed work on to Mrs. Snyder, who charged less than Mrs. Chait’s original quote. Mrs. Chait felt that she was entitled to the difference. The client wants to pay the lower fee. Mrs. Snyder, who now discovers that the client was prepared to pay more for the gown, would like to collect the higher fee. Would you like to be the dayan and tell us what to do?

Over hundred years ago, the great Hungarian gadol and posek Rav Meir Arik zt’l discussed this exact case. Rav Arik reasoned that just as the owner reimburses the supervisor only as much as the laborers received, similarly Rivka pays the second seamstress her price and the first seamstress receives no compensation for making the arrangements (Minchas Pitim, Choshen Mishpat Chapter 332, quoted by Pischei Choshen, Sechirus 8:29).

I later discovered that Rav Arik’s ruling is based on an earlier responsum authored by the Mabit (Shu’t Mabit 3:23), who was a Rav in Yerushalayim in the Sixteenth Century. However, there are some significant differences in the Mabit’s original case:

Reuven supplied Shimon with material to weave a garment. Unbeknown to Reuven, Shimon contracted Levi to weave the garment for a lower price and sent Levi the material. Reuven subsequently claims that more material was used than should have been, and he has concerns about Levi’s honesty. He also wants to pay Levi’s lower fee and not Shimon’s higher one. In this case, Shimon violated the trust agreement because Reuven never allowed Shimon to entrust the material to anyone else. This is a halachic violation of the laws of shomrim for which Shimon is liable — if I am entrusted with someone’s property, I may not give the item to someone else to watch in my place. Therefore, Shimon is liable for any losses and damages that might ensue, should the material be lost or stolen. The Mabit also rules that in addition to Shimon’s liability for breach of trust, Reuven is required to pay only the lower wage, since the higher wage is contingent on Shimon performing the work. Reuven is not required to pay the same price to someone else, nor to Shimon, if someone else performed the work. The first tailor is not entitled to any payment for someone else’s labor, as we see from the previously quoted Gemara.

CONTRACTING OUT WORK

In our original case, could Mrs. Chait have simply contracted out the work, and presented it to Rivka without telling her who made it, or how much it cost?

I believe that if Rivka had not supplied the material, then Mrs. Chait could have subcontracted the work, provided she assumes responsibility for the finished product. When I order a garment, my concern is to receive what I ordered and it makes no difference to me who actually produced the garment. Thus, Mrs. Chait could have subcontracted the garment to Mrs. Snyder, and maintained control of her dealing with Rivka. Of course, if she had done this, she would also have been responsible for the finished garment, and would have been responsible for adjustments and alterations to the gown.

A BUILDING CONTRACTOR

Let me explain the difference between subcontracting and Rav Arik’s case with the following common example. When you hire a contractor to perform major renovation work, he usually subcontracts much of the work to other artisans, such as electricians or plumbers. Does your contractor charge you the same price that his subcontractors charge him? Of course not; he marks up the price. How can he mark up his charges when we just said that the supervisor of the Gemara is not entitled to charge extra for the costs of the laborers?

The difference is whether the contractor is still responsible for the work of the subcontractor. In the Gemara’s case, the supervisor is not responsible to repair inferior work performed by the laborers. Similarly, I believe that in Rav Arik’s case, once the second seamstress took over the job, the first seamstress was no longer involved. If the client is unhappy with the job, she will ask Mrs. Snyder to fix it, but has no recourse against Mrs. Chait.

However, if the customer is dissatisfied with the work of a subcontractor, who is responsible to make sure that it is repaired? The contractor. Therefore, the contractor may charge for his involvement and responsibility and mark up the subcontractor’s charges. In essence, the subcontractor is not working for you: he is working for the contractor. In the case of the Gemara, although the supervisor guaranteed the wages, the laborers were working for the business owner, not for the supervisor.

Therefore, if Mrs. Chait is still responsible for the quality of the finished product, she may charge for that part of the responsibility. She may assume total responsibility for the finished product and merely use Mrs. Snyder as her subcontractor. Clearly Rav Arik was not discussing such a case.

A FINDER’S FEE

Could the first seamstress have requested a finder’s fee?

The Gemara (Bava Metzia 63b) mentions the responsibility to pay a broker’s fee to the person who arranges the sale of property or merchandise (Shulchan Aruch, Choshen Mishpat 185:1; Rama 87:39). This is a standard business practice, similar to paying a commission to a stockbroker, real estate agent, or personnel recruiter (sometimes called a “headhunter”). As a matter of fact, this is also the halachic source for paying shadchanus gelt; one pays a shadchan for making the arrangements necessary for the engagement and marriage to transpire. If this is true, why could the first seamstress not have requested a shadchanus fee for arranging that the second seamstress make the gown for the client? In this instance, Mrs. Chait should be entitled to a finder’s fee for referring the business to Mrs. Snyder, yet Rav Arik does not mention this fact. Why not?

I do not know why he does not discuss this possibility, but I would suggest the following: Shadchanus gelt and finder’s fees are chargeable only when they are standard practice. If a certain type of transaction does not usually involve a finder’s fee, one cannot charge it. For this reason, one cannot charge a finder’s fee for referring a visitor to a neighborhood grocery store: although purchasing groceries is a transaction, one does not usually charge for the service of informing a person where to buy a bottle of milk. Similarly, it is not standard practice to charge for referring a person to a tailor or seamstress for the production of a single garment; therefore, it does not warrant a finder’s fee.

THE CONGREGATIONS AND THE CANTORS

We can now examine the legal issues involved in the din Torah mentioned above, where the chazzan booked two different shullen for Yomim Norayim, one for Shacharis and the other for Musaf, and incurred the wrath of both congregations. An actual din Torah ensued in 1896 in Brayulav, Moldavia under very similar circumstances. The shaylah was more interesting because the chazzan involved was the community shocheit, and some members of his community wanted to disqualify him as a shocheit due to the moral turpitude displayed by not keeping his word. (Can you imagine what they would think about our contemporary politicians?) The shocheitchazzan contended that both congregations should pay him as agreed, minus the expense of hiring the additional bal Shacharis for Yom Kippur. Congregation Shachein Tov felt that since he had left them without a chazzan of choice for Yom Kippur, they owed him nothing. The local rav, Rav Shelomoh Mehr, who was asked to rule on the case, referred it to the posek hador, the Maharsham of Brezin, Galicia, for final judgment.

Does Shachein Tov’s claim that the shocheitchazzan is entitled to no financial compensation have validity? The shul claims that the shocheitchazzan’s breach of contract caused them irreparable damage. Both Rav Shelomoh Mehr and the Maharsham concur that the shul did not suffer irreparable damage by the substitution of a mediocre chazzan. Thus, the agreed amount should be prorated based on a calculation as to how much of the fee was for Rosh HaShanah and how much for Yom Kippur, and the chazzan receives compensation appropriate for the Rosh HaShanah davening. Since the substitute chazzan received less for Yom Kippur than the shocheitchazzan would have earned, the shul saved some money as a result. On the other hand, the chazzan’s claim that the shul should simply subtract the substitute’s wage from his fee is inappropriate. Since this would result in his receiving more than the prorated amount for Rosh HaShanah, it would in essence pay the chazzan some compensation for the Yom Kippur davening that he did not perform. Therefore, the difference between what the first chazzan was supposed to receive and what the second chazzan actually did receive reverts back to the shul.

Regarding whether the chazzanshocheit is disqualified in the future as a shocheit for exhibiting moral turpitude, the Maharsham ruled him qualified to continue in his profession as shocheit. Maharsham agreed, in principle, that someone who breaks his word in financial matters has seriously compromised his integrity and is considered mechusar amanah which halachically makes him a rosho, an evil person. The Maharsham implies that this offence is serious enough to warrant dismissal of a shocheit.

However in this case, the shocheit was not mechusar amanah in failing to abide by his agreement, but rather, he overextended himself in a way that he thought he could honor both commitments. Indeed, even if we assume that he could not honor his commitments, his violation was one of negligence, not intent. The chazzanshocheit truly believed that his double commitments were not in conflict with one another, and that he could accomplish both. Furthermore, had he realized that Congregation Ohavei Kol would fire him for davening Shacharis at Shachein Tov, he would never have agreed to daven at Shachein Tov. Therefore, he is considered someone who placed himself negligently in a circumstance where he was forced to forgo one of his agreements. This constitutes sloppy or careless behavior in business dealings, which, although reprehensible, demonstrates bad judgment, not moral turpitude. Bad judgment about one’s financial matters does not disqualify a shocheit or anyone else for that matter.

The Maharsham does not discuss directly how much Congregation Ohavei Kol must pay the chazzan. He implies that Rav Mehr had ruled that they must pay the chazzan in full, and that neither rav accepted the shul’s claim that he had underperformed in his vocal commitments to them, since he had indeed davened all the tefillos contracted.

THE CASE OF THE GLATT GELT

We can now examine the last of the three original shaylos, that of the Glatt Gelt.

The Rav HaMachshir of Glatt Kosher Inc. had hired Rabbi Gold to be his mashgiach, and knew that Rabbi Gold was making a substitution. If Glatt is dealing directly only with the substitute, then this case is parallel to the Gemara’s case of the supervisor and Rav Arik’s case of the seamstress; thus, Rabbi Gold would receive no additional compensation, unless this entitles him to a finder’s fee. However, if Rabbi Gold is still responsible to make sure that someone oversees the production, or he is responsible to train the mashgiach, then he is entitled to compensation for this work. If he chooses to charge Glatt and in turn pay Monish Key, he could argue that Mr. Key is really his employee and not Glatt’s. For example, if the substitute will contact Rabbi Gold if he has a problem, or if some other complication would still involve Rabbi Gold’s responsibility, then Rabbi Gold can claim that he is still in the hire of Glatt Foods, and Mr. Key is his subcontractor. Similarly, if Rabbi Gold is training or instructing Mr. Key for the job, then he may charge for this service.

However, this is permitted only if Glatt Kosher Inc. agrees to allow Rabbi Gold to arrange his own substitute. Otherwise, Glatt Kosher Inc., would assume that Rabbi Gold, their crackerjack field supervisor, is doing all the work himself. It is unacceptable and a serious breach of faith on the part of the field supervisor if he is not the one providing the service for which he is charging and instead arranging a substitute unbeknownst to the hechsher. This is indeed similar to the Mabit’s ruling, cited earlier, that it is deceptive to substitute an artisan without the knowledge of the customer. Although the cases are not 100% parallel, it is certainly true that in kashrus supervision the religiosity, practical expertise, and halachic knowledge of the field supervisor are major factors influencing the quality of work performed. Therefore, the supervisor has no right to arrange substitution without the foreknowledge of the hechsher.

A Torah Jew observes his contractual commitments with trust and faith. He certainly realizes that Hashem’s Torah is all-encompassing and directs every aspect of his life, certainly the details of his livelihood and his financial dealings.

*all names have been changed




When There Is a Will, the Relatives May Complain

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

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

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

I. Who is the heir?

II. What is the halachic status of a will?

III. May one file the lawsuit in secular court?

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

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

I. Who is the heir?

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

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

Why Uncle Jack?

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

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

II. Is the will valid?

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

How can someone leave his property to his adopted child?

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

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

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

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

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

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

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

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

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

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

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

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

Harsha’ah

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

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

“Dear Rav Kaganoff,

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

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

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

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

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

Another consideration: Chalitzah

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

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

I quote my letter to Yonasan:

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

Yonasan replied:

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

To which I replied:

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

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

Yonasan responded to my inquiry:

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

To which I responded,

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

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

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

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

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


[1] Megillah 13a; Sanhedrin 19b

[2] Mishnah Kesubos 100b

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

[4] Gittin 88b

[5] Ramban, beginning of Parshas Mishpatim

[6] Midrash Tanchuma, Mishpatim #3

[7] Hilchos Sanhedrin 26:7

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

[9] Mishnah Berurah 53:82

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

[11] Shulchan Aruch, Choshen Mishpat 26:2

[12] Mishnah Yevamos 20a

[13] Mishnah Yevamos 20a




Life Insurance: To Buy or Not to Buy?

In parshas Va’Yishlach, Yaakov needed to make very important and practical life decisions with major long-term ramifications, when he heard that Esav was approaching with his army of 400 men; these decisions were made based on his halachic and hashkafic background. We also have similar decisions to make. With this introduction, I bring you:

Question #1:

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

Question #2:

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

Question #3:

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

Answer:

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

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

I. Creating a Devil’s Advocate

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

II. In G-d We Trust

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

III. Succeeding in Divine Judgment

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

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

Issue #1 — Creating a Devil’s Advocate

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

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

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

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

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

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

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

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

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

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

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

Is there a Dispute in the Mishnah?

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

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

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

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

Resolving the Dispute

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

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

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

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

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

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

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

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

What will I eat tomorrow?

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

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

The Manna

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

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

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

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

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

Issue #3  — Succeeding in Divine Judgment

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

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

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

Conclusion

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

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

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


[1] Kesubos 8b

[2] Berachos 19a

[3] 239:7

[4] Menachos 41a

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

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

[7] Shu’t Rivash #114

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

[9] Berachos 60a

[10] Kiddushin 82a

[11] Eruvin 13b

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

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

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

[15] Shu’t Shevet HaLevi 4:1:2

[16] Kiddushin 41a

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

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

[19] Sotah 48b

[20] Yoma 76a

[21] Devarim 14:29

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

[23] Shu’t Kochavei Yitzchak 1:22

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




Mystery in the Coatroom and Other Lost Stories or Some Practical Aspects of Hashavas Aveidah

 

Question #1: MYSTERY IN THE COATROOM

clip_image002Our shul has coats, umbrellas and other items that have been sitting in the coatroom for months. We have hung notices asking people to check if they have any clothing there, but many items remain. The shul is now undergoing renovation which will ruin whatever remains. What can we do with the accumulated clothing?

Question #2: ON THE STREETS OF NEW YORK

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

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

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

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

THE BASIC RULES

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

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

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

AN IMPORTANT EXCEPTION

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

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

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

How do we rule?

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

Here is a practical case:

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

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

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

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

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

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

SIMAN – AN IDENTIFYING MARK

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

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

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

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

DERECH HINUACH

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

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

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

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

KNOWLEDGE PROVES OWNERSHIP

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

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

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

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

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

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

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

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

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

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

May Suzie keep the lost items?

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

A REVIEW OF THE BASIC RULES:

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

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

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

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

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

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

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

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




How Do I Distribute My Tzedakah?

clip_image002Let us begin by reviewing the concepts of mitzvas tzedakah that I discussed last article. These concepts include:

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

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

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

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

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

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

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

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

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

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

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

HOW MUCH TZEDAKAH SHOULD I BE GIVING?

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

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

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

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

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

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

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

FAMILY FIRST

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

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

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

CAN I PAY TUITION FROM MAASER FUNDS?

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

HOMETOWN ADVANTAGE

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

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

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

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

ERETZ YISROEL VERSUS CHUTZ LA’ARETZ

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

LIMITED RESOURCES

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

IF I HAVE USED UP MY CHOMESH FUNDS…

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

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

TURNED DOWN

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

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

THE NEGLIGENT POOR

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

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

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

LAST WEEK’S SHAYLOS

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

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

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

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

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

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

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

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

TESTING HASHEM

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

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

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

“How do you know?” asked Rabbi Yochanan.

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

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

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

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

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

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

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




Should I Limit How Much Tzedakah I Give?

This article was originally published in Yated Neeman

clip_image002There is a knock on my door, and I am face-to-face with someone holding a letter from the local Vaad HaTzedakah. The letter introduces him as an individual in need of surgery but without medical insurance to pay for it. How much should I give him?

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

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

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

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

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

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

HOW MUCH ARE WE REQUIRED TO PROVIDE A NEEDY PERSON?

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

DEI MACHSORO

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

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

THE COMMUNITY TZEDAKAH FUND

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

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

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

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

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

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

“ANI BIFANAV”

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

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

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

SETTING UP A SYSTEM TO GIVE MAASER

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

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

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

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

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

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

A BRACHA

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

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

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

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

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

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

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

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

YISSACHAR-ZEVULUN PARTNERSHIP

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

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

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

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

PIKUACH NEFASHOS

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

OTHER EXCEPTIONS

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

I HAVE EXCEEDED MY LIMIT

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

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

See “How Do I Distribute My Tzedakah” for the practical applications of tzedakah based on these principles.




How Does a Heter Iska Work?

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

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

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

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

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

This verse teaches three different mitzvos:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

WHAT IS A HETER ISKA?

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

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

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

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

THE EARLIEST HETER ISKA

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

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

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

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

PIKADON – INVESTING

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

GUARANTEEING THE INVESTMENT

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

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

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

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

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

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

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

“Could you explain why this is important?”

STANDARD ISKA – A SILENT PARTNERSHIP

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

RECEIVING PROFIT FROM THE LOAN

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

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

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

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

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

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

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

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

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

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




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

clip_image002In Parshas Ki Seitzei, the Torah instructs “Biyomo sitein s’charo vi’lo sa’avor alav hashemesh,” “On that day (that is, the day the work was completed) you should pay his wage, and the sun shall not set (without him receiving his payment)” (Devarim 24:15). The Torah mentions two mitzvos; a positive mitzvah (mitzvas aseh)

and a negative mitzvah (lo sa’aseh) to guarantee that a worker is paid before sunset of the day that he performed his job. Thus, someone who pays his worker on time fulfills a positive mitzvah, whereas if he neglects to pay him on time and the worker demands payment, he has 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 in Parshas Kedoshim, the Torah presents the mitzvah somewhat differently: “Lo salin peulas sachir itcha ad boker,” “The wages of a worker shall not remain with you until morning” (Vayikra 19:13). Here the Torah requires that the worker be paid before morning, implying that one has the entire night to pay him, rather than being responsible to pay him before the day is over. The two verses appear contradictory, one implying that I must pay my worker before sunset, the other implying that I have until morning.

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

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

WHAT TYPE OF WORK IS INCLUDED IN THIS MITZVAH?

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

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

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

EXAMPLE:

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

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

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

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

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

RENTALS

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

EXAMPLE:

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

SMALL WAGES AND SMALL EMPLOYEES

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

EXAMPLE:

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

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

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

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

EXAMPLE:

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

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

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

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

WHAT IS THE HALACHA IF AN AGENT HIRED THE WORKERS?

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

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

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

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

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

EXAMPLE:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MAY THE OWNER OFFER EXTRA COMPENSATION FOR DELAYED PAYMENT?

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

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

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

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

SUGGESTION:

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

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

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