Is a Position Inherited?

Question #1: The inherited shofar

“Our shul’s longstanding shofar blower passed on. Are we required to appoint his son, when we would prefer to appoint a different master blaster?”

Question #2: I’d like a change!

“Is there a halachic reason why, in some communities, people hold their appointments on shul and school boards forever, whereas, in other communities, these positions are constantly rotated?”

Question #3: Long live the Rabbi!

“When a rav passes on, does his son have a claim to the position?”

Answer:

In several places, Chazal derive that a son qualified for a communal appointment held by his father inherits the position (Horiyos 11b; Kesubos 103b; Sifrei, Devorim 17:20). To quote the Rambam’s halachic ruling on the topic: When the king, the kohen gadol, or a different appointee dies, we appoint, in his stead, his son or someone else who would inherit from him. Whoever would be first to inherit from him comes first for the position of the deceased, provided he is a valid substitute… the same is true for any appointment in the Jewish people — one who receives it does so for himself and his descendants (Hilchos Klei Hamikdash 4:20).

The Rambam mentions this law a second time,in which he explains in more detail what is meant by saying that the son is a “valid substitute”: whoever has a prior right germane to receive inheritance has a prior right for inheriting the monarchy… not only the kingship, but any other position of authority and any other appointment in Israel is an inheritance for his son and his son’s son, forever, provided that the son fills the place of his father in wisdom and fear of G-d. If he meets the standard in fear of G-d, but not in wisdom, we appoint him and then teach him. However, anyone lacking in fear of G-d, even if he is very wise, is not appointed to any position in Israel (Hilchos Melachim 1:7).

Retiring chazzan

One of the earliest surviving responsa related to this question was penned hundreds of years ago, when the Rashba was asked about the following case (Shu”t HaRashba 1:300). A chazzan/baal keriyah had been serving a community faithfully for 38 years, a position that he inherited from his father, who had inherited the position from his father. The current chazzan’s vision is now somewhat impaired, making it difficult for him to be the baal keriyah, and he has been having his son function as baal keriyah and also as community secretary and scribe, which apparently were other responsibilities included in the position. Some members of the community are dissatisfied with the new arrangements — they feel that the son does not have as nice a voice as his father. They are requesting that either the chazzan fulfill all the requirements of his position, or that he retire and allow the community to hire a new chazzan, who can perform to their specifications. When the community hired this chazzan over a generation before, he was able to perform all his tasks admirably. They are still satisfied with his skills as a chazzan, and they would not request that he step down, as long as he can fulfill his job. However, they feel that they did not hire his replacement, and they are dissatisfied with the son’s voice, which is not as melodious as that of his father.

For his part, the chazzan notes that he has a life contract with the community, which states that no one can take his place at any of his tasks without his permission. Furthermore, he claims that most of the 150 members of the community are willing to have his son help him in the areas that are now difficult for him, whereas only about ten members voice disapproval of the new arrangement. Each of the two sides in the dispute presented its position to the Rashba to rule on the case via correspondence. We are highly grateful that they chose this specific method of dealing with their litigation, because it provides a written record of the case and the Rashba’s detailed decision. Based on what we have seen so far, how would you rule?

The ruling

The Rashba sided with the chazzan for three different reasons:

First, when you hire someone for a position as chazzan, it is self understood that he will occasionally need someone to substitute for him, either because he is ill or needs to be out of town. The Rashba rules that it is within the authority of the chazzan to choose who should serve as his substitute, assuming that he chooses someone who can do an adequate job. (A later authority, the Keneses Hagedolah, notes that there is another requirement – the substitute is G-d-fearing enough to fill the position [quoted by the Mishnah Berurah 53:84].)

Second reason of Rashba

A second reason why the Rashba rules in favor of the chazzan is that the contract states that the community cannot have someone else take his place without his agreement. This implies that the chazzan has the authority, at his option, to choose someone to assist him in carrying out his responsibilities.

The Rashba does not make any distinction between having someone substitute for the chazzan on an occasional basis and having someone assume some of his responsibilities permanently. In both instances, he considers it the right of the chazzan to assign part of this job to someone else, provided the assignee can perform the job adequately. It is not necessary that the substitute or replacement perform the job at the same level as the chazzan himself.

The son’s right

The third reason the Rashba cites is that, should the chazzan no longer be able to fulfill his responsibilities, his son has the right to the position as long as he can perform the job adequately. It is not necessary that the son have a voice as melodious as that of his father, as long as he is G-d fearing enough to fulfill the position. It is, therefore, certainly true that the son has the right to assist the current chazzan ahead of anyone else. Some later authorities rule that the son does not have a right to the position if his voice sounds strange (Magen Avraham 53:32).

To simplify: The Rashba’s first two reasons explain why the chazzan has a right to choose his own replacement, and the third reason explains why the son has the right to assume the chazzan’s responsibilities, ahead of any other candidate.

Choosing someone else

What would the Rashba hold if the different reasons are in conflict – meaning that the son would like to be his father’s replacement, but the father does not want him? The Rashba implies that, should the chazzan want to appoint someone other than his son to help him with his responsibilities, he may do so.

How do we rule?

The Rema (Orach Chayim 53:25) quotes this Rashba, but implies that he limits the right of the chazzan to appointing his son, and does not accept that the chazzan has the right to appoint someone else. The Mishnah Berurah explains as follows: There are indeed two different concepts that explain why the Rashba ruled according to the chazzan. One is that the chazzan has a right to appoint a substitute to assist him on an occasional basis, or to take over for him while he is away or ill. However, it may be that this right is his only when the substitute is temporarily fulfilling one of the chazzan’s responsibilities. It may not follow that the chazzan can appoint someone to replace him permanently in one of his roles. In this instance, that job would pass to the chazzan’s son. In the opinion of the Rema, when a permanent appointment is being made, the son has the right to the position, whereas the Rashba, himself, held that the chazzan has the right to appoint even someone other than his son on a permanent basis to assist him in his responsibilities. We will soon see a possible source for the Rema’s opinion.

Inherited his voice?

Why does the son of a chazzan have the right to inherit his father’s position? After all, when the chazzan died, he made his son into an orphan, not into a chazzan!

However, as we saw above, this halachah is in fact the case for any position in klal Yisroel: A son has the right to his father’s position, as long as he meets the basic requirements for the position.

Can the son sell the position?

To what extent does the son have the right to the position? Can he offer the position to someone else, and if so, can he do so even for payment?

An early authority, the Mordechai (Bava Kama 8:108), quoting a responsum from his rebbe, the Maharam Rottenberg, discusses this exact question. He rules that although a position of authority among the Jewish people is bequeathed to a son, the son does not have any right to give the position to someone else. He compares this to the rights of a kohen or a levi, which also are bequeathed to sons, but cannot be sold or transferred.

This is explained nicely by the Chasam Sofer (Shu”t Orach Chayim #12), who notes that a position, even of king of the Jewish people, is not inherited in the same way that one inherits property. According to the Torah, when a man dies, his sons automatically become the owners of his property. They do not require an authorization of a beis din, a court order, or a formal transfer of title – the property automatically becomes theirs. This is not the case regarding the inheriting of a position. The son does not automatically become king or kohen gadol – he must be appointed to the position. (Those interested in knowing how the kohen gadol is appointed should check the following sources: Tosafos, Zevachim 18a s.v. Hagah; Tosafos, Yoma 12b s.v. Kohein; Tosafos, Megillah 9b s.v. Velo; Aruch Hashulchan Ha’asid,Chapter 23.)

Source for the Rema

This Mordechai might be the source for the above-quoted Rema, who ruled that the chazzan may transfer some of his responsibilities to his son, but cannot appoint someone else instead of his son. The Rema accepted that it is understood that a position of chazzan will require that he occasionally needs someone to substitute, and that the choice of substitute may be left to the chazzan. But the chazzan does not own the position to the extent that he can transfer it to someone else permanently, either completely or partially.

Other reasons

Let us return to the original responsum of the Rashba, in which he ruled that the chazzan has the right to appoint his own substitute. The Rashba contends that, even without a contract, the community cannot replace the chazzan. In a different responsum (Shu”t Harashba 5:283), heprovides several reasons why a chazzan or anyone else in a community position has a right to keep his post. One reason is that halachah recognizes that, once someone has been fulfilling a communal role, he acquires a chazakah, the right of status quo, to keep the position, as long as there is no reason to disqualify him.

The Rashba presents a second reason why an appointee has the right to keep his position: because of darchei shalom. It reduces machlokes when people have an assumption that replacements are not made arbitrarily. Anyone who has lived in a community where this is not common practice can certainly attest to the strife created when a public servant’s contract is not renewed. (However, see Shu”t Maharalnach, quoted by Magen Avraham 53:32.)

A third reason why the person has the right to keep his position is because, if he is replaced, people may think that this was because of malfeasance. Maintaining him in the position protects his personal reputation.

Exceptions

Even the Rashba felt that there can be exceptions to his ruling – in other words, there are some instances in which one may be able to terminate a person’s tenure from a community position without that person having committed a malfeasance. The Rashba notes that there are places in which the recognized custom is that all positions are regularly rotated. In these communities, all appointments, whether salaried or voluntary, are temporary. He explains that since this is an accepted practice in these congregations, the reasons mentioned above why one may not remove someone from a position do not apply. Since everyone knows that his appointment is only temporary, no machlokes should result when a replacement is made. Similarly, no one will assume that an appointee was replaced because of malfeasance.

The later authorities note that this is true only when it is already an established custom in these places that appointments are always temporary and replacements are made at a specified time. However, when it is usual practice that people remain in their positions, one may not remove someone from his position, unless there was malfeasance (Shu”t Chemdas Shelomoh #7and Shu”t Chasam Sofer, Orach Chayim #206, both quoted by Mishnah Berurah 53:86). The Chasam Sofer allows another exception — when it was stipulated at the time of the original appointment that a new negotiation and appointment is necessary to renew the person’s appointment after his term is complete.

I’d like a change!

At this point, we can discuss one of our original questions:

“Is there a halachic reason why, in some communities, people hold their appointments on shul and school boards forever, whereas in other communities, these positions are constantly rotated?”

We now see that there is halachic basis both for the practice that in some communities that people remain in the position of shul or school president for long periods of time, whereas in other communities these positions are rotated on a regular basis.

A major exception?

Although we have noted that a son has a right to inherit his father’s position, several authorities contend that there is a major exception to this rule: a Torah position is not automatically inherited. One of the major advocates of this approach, the Chasam Sofer (Shu”t Chasam Sofer, Orach Chayim #12 and glosses to Orach Chayim end of 53), asked the following question: The Gemara (Yoma 72b) states that the position of kohen meshuach milchamah, the kohen anointed to provide encouragement and announce the halachos to the soldiers of the Jewish army, is not a hereditary position. Why is this position different from all the other appointments that we say are hereditary? The Chasam Sofer answers that there is a difference between positions of authority and religious positions. Positions of authority, such as king, do belong to the son, if he is qualified. However, there is no inheritance of religious positions, unless that is the accepted custom. (A similar view is stated by the Shu”t Maharashdam, Yoreh Deah #85.) The one exception to this rule is the position of kohen gadol, which the Torah says does go to the son, notwithstanding the fact that it is a religious position. Thus, the Rashba’s case in which the son inherits his father’s position as chazzan (a religious position) is only because that was the accepted custom.

The Chasam Sofer rallies support for his approach based on the fact that the positions of nasi and head of the Sanhedrin did not usually pass from father to son, but instead passed to the most qualified scholar. Only the nesi’im from Hillel and onward passed the position from father to son. The Chasam Sofer explains that from the time of Hillel until the Sanhedrin disbanded, the nasi of the Sanhedrin was also viewed as the “king” of the Jewish people, thus making it a position of authority and not merely religious. During this era, the position was bequeathed to the oldest son of the previous nasi, if he was G-d-fearing and enough of a scholar to fulfill his duties. However, prior to this era, the position was viewed only as a religious role and, therefore, it was assigned to the greatest scholar in the Jewish people.

Based on his analysis, the Chasam Sofer concludes that the son of a deceased rav does not automatically have the right to the position. If most of the tzibur does not want him, they have a right to pick any other qualified G-d-fearing Torah scholar who is qualified enough to rule on the community’s needs. They are not required to choose the most qualified talmid chacham for the position. For example, they may choose a person who is a stronger leader over a bigger talmid chacham who does not have the same leadership abilities.

The Chasam Sofer closes his responsum with the following proof to his position: The Midrash, quoted by Rashi, states that when Moshe Rabbeinu asked Hashem to appoint a leader to head the Bnei Yisroel, he wanted his sons to be his replacement. Obviously, his sons had all the qualities that Moshe felt were necessary for the position – otherwise, why would he have thought that they should qualify? Yet, Hashem chose Yehoshua for other reasons. Thus, we see that the position of Torah leader over the Jewish people is not an inherited one.

Conclusion

When the Mishnah Berurah (53:83) discusses this matter, he cites the opinions we have mentioned without ruling on the matter. Thus, an individual congregation will need to ask a shaylah whether a son has the right to father’s position, where there is no established minhag and the community would like to appoint someone else.

Gifts to the Poor

The Gemara tells us that the Torah reading of Sukkos includes references concerning gifts to the poor, to remind people of these mitzvos during harvest season.

Question #1: Leaving in Today’s World

“Is there a requirement to leave leket, shich’cha and pei’ah in your field today?”

Question #2: In Chutz La’Aretz

“I live in chutz la’aretz. Am I required to separate pei’ah on my backyard vegetable patch?”

Question #3: Cluster Alms

“Why do I need to know how a typical cluster of grapes looks?

Introduction

While harvesting grain and other produce, the Torah presents six different mitzvah opportunities to provide for the poor: leket, shich’cha, pei’ah, peret, oleilos, and maaser ani. I discussed several of these mitzvos in a recent article, but did not complete the topic. This article picks up where that one left off.

In parshas Kedoshim, the Torah mentions the mitzvos of pei’ah, leket, peret and oleilos: When you reap the harvest of your land, do not complete harvesting the corner of your field, and the “leket” of your harvest you should not collect. From your vineyard, do not remove the “oleilos,” and the “peret” of your vineyard you should not collect. Leave them for the poor and the stranger (Vayikra 19:9-10). I deliberately did not translate the words leket, oleilos and peret, since they will be explained shortly.

Shich’cha, peret and oleilos are all discussed at the end of parshas Ki Seitzei (Devarim 24:19-21).

Maaser ani is mentioned in parshas Ki Savo (Devarim 26:12)

Two of these mitzvos, pei’ah and leket, are also discussed in parshas Emor (Vayikra 23:22), in the midst of the Torah’s discussion about the festival cycle (parshas hamo’ados): When cutting the harvest of your land, do not complete the reaping of the corner of your field while you are harvesting, and the “leket” of your harvest you should not collect. Leave them for the poor and the stranger. This pasuk is the one included in our Sukkos reading.

Several halachos are quite clear from these pesukim, even without any commentary. The mitzvah is to leave behind these four items: pei’ah, leket, oleilos and peret, and allow the impoverished to help themselves. This implies that the owner may not choose or favor one pauper over another in the distribution of these gifts, and that neither he, nor anyone else, is even permitted to assist one poor person over another. To quote the Mishnah: He who does not allow the poor to collect, or allows one of them to collect but not another, or helps one of them, is stealing from the poor (Pei’ah 5:6).

Shich’cha

The mitzvah of shich’cha is discussed only at the end of parshas Ki Seitzei (Devarim 24:19): When you reap your harvest in your field, and you forget a sheaf in the field, you may not return to get it; it shall be for the stranger, the orphan and the widow, so that Hashem, your G-d, will bless you in all your undertakings. Shich’cha is different from the other four mitzvos we have previously mentioned in one significant way – it applies to produce only as it is brought in from the field, and not any earlier or later (Pei’ah 5:8).  Therefore, small bundles that were forgotten in the field, but where the intention, initially, was to combine them into larger bundles before bringing them in from the field, are not shich’cha (Pei’ah 5:8). This is different from the mitzvos of pei’ah, leket, peret and oleilos, which apply only at the time of the reaping, when the produce is being cut from the earth.

Shich’cha applies only when the owner or his workers forgot one or two bundles (Pei’ah 6:5). If they forgot three or more bundles, the law of shich’cha does not apply – the poor may not take it, and the owner may retrieve it.

Shich’cha applies only if we can assume that the sheaf or sheaves left behind are likely to be completely forgotten.  However, it does not apply if the owner or his worker will remember later that the bundle was left behind, for any of a variety of reasons, such as, it was left in a place that he will remember where it was, or it was much larger than the rest of his sheaves (Rambam, Hilchos Matanos Aniyim 5:17). Another example is when they forgot to harvest from a certain tree, but they will later remember about the tree because it is distinctive, either because it has its own nickname, or it is unusual in some other way or in its location (Pei’ah 7:1-2).

Shich’cha applies also to grapes, as well as to olives and the fruit of other trees (Pei’ah 6:9; 7:1).

What is leket?

To quote the Mishnah: What is leket? That which falls at the time of the cutting… If it is within [the reaper’s] hand or his sickle, it qualifies as leket and belongs to the poor. If it is beyond his hand or his sickle, it belongs to the owner and does not qualify as leket (Pei’ah 4:10). In other words, stalks of grain that were cut by swinging a sickle, but were beyond the hand or the sickle of the harvester, do not qualify as leket, because they were not severed from the ground in the way that grain is usually cut (Bartenura).

Three and over

The law of leket applies only when the reaper dropped one or two stalks at a time, but if he dropped three or more stalks, he may pick up the stalks and add them to his harvest, and the poor people are not permitted to take them (Pei’ah 6:5).

Piled on top of the leket

What is the halacha if the owner of the field or his employees collected the produce of his own harvest and then piled it in an area of the field where the poor people had not yet collected the leket. In this instance, we will no longer be able to ascertain how much leket grain in the field rightfully belongs to the poor, because the reapers’ pile creates a mixture of leket grain that belongs to the poor and non-leket grain that belongs to the owner.

To discourage this from happening, Chazal instituted that the entire bottom layer of the grain pile is considered the property of the poor (Pei’ah 5:1), even when it is impossible that so much grain fell as leket. This ruling is a penalty leveled upon the owner, to make sure that he does not allow such a practice. He should make sure that his workers pile their produce in an area that does not contain any leket.

What are peret and oleilos?

We have not yet explained the other two mitzvos that are taught in the pasuk that I quoted above, peret and oleilos. These two gifts to the poor exist only regarding grapes.

Peret is to a vineyard what leket is to grain. In other words, while picking the grapes, should a single grape or two fall from the hand of the harvester, they must be left for the poor (Pei’ah 6:5; 7:3). However, just as we explained before that three stalks of grain falling together while cutting are not leket, three of more grapes falling at one time are not peret and may be retrieved by the owner.

Oleilos

Oleilos are grapes that did not grow as part of a proper cluster. Ordinarily, a cluster of grapes includes many small bunches that grow off the main stem near the top of the cluster; when the grapes lie upon one another, they create a bulge, appearing a bit like a “shoulder,” near the top of the cluster. In addition, the central stem of typical cluster grows longer than the small bunches that branch off it, which causes some grapes to hang down at the bottom of the cluster. These two features provide a cluster of grapes with its traditional appearance of the widest part near, but not at, the very top, and the bottom being narrowest, where a few grapes hang lower than the rest of the cluster.

Oleilos are when a cluster of grapes grows without a “shoulder” at the top of the cluster and without any grapes of the main stem hanging lower than the rest of the cluster. A bunch of grapes growing without these features may not be harvested by the owner or his workers and is left for the poor (Pei’ah 7:4).

Maaser ani

Regarding maaser ani, the Torah states: When you complete all the tithes of your produce in the third year, the year of the special tithe, make certain to give it to the Levi, the stranger, the orphan and the widow, who will eat it within the gates of your cities and be satisfied (Devarim 26:12).

This pasuk alludes to at least two different tithes, and teaches that the third year has a tithe different from the previous years. In the third year, you must give one maaser, which we call maaser rishon, to the Levi, and a second maaser that is a maaser for the poor (the stranger, the orphan and the widow). This mitzvah, maaser ani, is mentioned also in parshas Re’eih (Devarim 14:28-29).

There is a fundamental difference between maaser ani and the other gifts to the poor. As mentioned above, gifts to the poor are left for them to help themselves. A more agile and industrious poor person can collect a great deal more leket, shich’cha, pei’ah, peret and oleilos than someone who has difficulty getting around. However, the pasuk in parshas Ki Savo states that the owner gives the maaser ani to the poor, meaning that he chooses which poor person will be the lucky recipient.

Answering questions

At this point, we have enough background that we can discuss one of our opening questions.  “I live in chutz la’aretz. Am I required to separate pei’ah on my backyard vegetable patch?” In other words, do any of these mitzvos of matanos la’aniyim apply outside Eretz Yisrael?

Matanos aniyim in chutz la’aretz

Although these mitzvos are halachically categorized as mitzvos hateluyos ba’aretz, agricultural mitzvos, and the general rule is that these mitzvos apply only in Eretz Yisrael (Mishnah Kiddushin 36b), the Gemara (Chullin 137b) mentions that the mitzvah of pei’ah applies in chutz la’aretz as a rabbinic injunction, and the Rambam explains that this includes all matanos aniyim (Hilchos Matanos Aniyim 1:14). We find this applies to several other of the mitzvos hateluyos ba’aretz, including challah, chodosh, terumos and maasros (because of space constraints, the details and definition of these different mitzvos will be discussed in other articles).

Regarding where in chutz la’aretz these mitzvos hateluyos ba’aretz are applied miderabbanan, there are two different sets of rules:

In the case of challah, the mitzvah applies anywhere in chutz la’aretz. Wherever you live, you are obligated to separate challah from a large enough dough.

Regarding terumos and maasros, the requirement to separate them applies only in lands near Eretz YisraelMitzrayim, Amon, and Moav – corresponding to parts of contemporary Egypt, Jordan and the Sinai and Negev deserts. There is no requirement to separate terumos and maasros from produce grown in Europe, anywhere else in Africa, the vast majority of Asia, and certainly not from produce grown in the Americas or Australia.

The question at hand is whether the matanos aniyim have the same halacha that applies to terumos and maasros, and therefore they apply only in lands near Eretz Yisrael, or whether they are treated like challah and apply everywhere. Most authorities conclude that the obligation of matanos aniyim applies only in places near Eretz Yisrael.

At this point, let us focus on the first question that we posed: “Is there a requirement to leave leket, shich’cha and pei’ah in your field today?”

Answering this question correctly requires that we explain another principle. In the earlier article, I mentioned the Mishnah that states that if all of the poor people in a certain place want the pei’ah to be divided evenly among them, rather than being available for each to forage as he best can, the pei’ah is divided evenly among the local poor. We can ask a question: Granted that the local poor people all agree to divide the matanos aniyim equally, however, these gifts do not belong only to them. All poor people, no matter where they live, are entitled to these matanos. If so, how can the people here decide how to divide their local matanos aniyim, without taking into consideration the rights of poor people elsewhere, who are also potential owners of the matanos aniyim?

The answer is that the poor people who are outside this locale have clearly been me’ya’eish, implicitly given up their legal right to the local matanos aniyim (see Bava Metzia 21b). The poskim conclude that in any situation in which the owner can assume that the poor will not come to collect the matanos aniyim that are left in the field, he is permitted to collect and keep them (Derech Emunah, Hilchos Matanos Aniyim 1:62). Therefore, in today’s world where poor people are not traveling to fields to collect their matanos, there is no obligation to leave leket, shich’cha, pei’ah, peret and oleilos.

Conclusion

In our discussion of the mitzvah of shich’cha, we quoted the pasuk that states that someone who observes this mitzvah will have all his undertakings blessed by Hashem. Rashi (Vayikra 5:17) notes the extent of this blessing. After all, the person forgot only one sheaf, yet Hashem blesses all his undertakings. As Rashi expresses it: We see from here that if someone dropped a coin, and a poor person found it and supports himself with it, Hashem provides the loser of the coin with a beracha.

How Does a Heter Iska Work?

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.

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“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 note 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. This 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 does not 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 payroll, and had no one available from whom to borrow. The director asked a backer 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 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 unfortunate,” 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 lender does not lose because the 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 Ha’deshen #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 many hundreds of years old. The earliest heter iska of which I am aware is suggested by the Terumas Ha’deshen (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 lending it to 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. In your words, to try to have his cake and eat it.

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, since Sweat knows how to 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 accurately how much profit Bucks receives. An 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 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 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 also 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, unfortunately, people often 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.”

“Why is this 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 a $50,000 loan that Mr. Sweat must eventually repay, and the other half is a $50,000 outlay that Mr. Bucks has 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 for which Bucks did not pay. Why is this not payment for Mr. Bucks’ loan, and therefore ribbis?

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

“One approach 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 actually be 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 is prohibited ribbis.”

“Precisely. However, there is another way to structure the heter iska to avoid the problem; have 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, our silent and managing partners divide the profits evenly, but in case of loss, our manager is responsible to pay only 30% of the loss, which means that he owns only 30% of the business. 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. Personally, I prefer this type of heter iska, but the type I described previously is perfectly acceptable as long as Mr. Sweat receives some compensation for his effort and know-how.

“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 profits to manage the investment.”

“Can you explain to me how the Terumas Ha’deshen’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 he is 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 so that the capital we receive from Hashem is used for tzedakah and loans, thereby 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.”

The Prohibition of Chanufah

According to some opinions, Yaakov may have been guilty of chanufah in his interactions with Eisav in this week’s parsha. What is chanufah and what did Yaakov do?

Question #1: Financial predicament

“Our yeshivah is in desperate financial shape. The father of one of our students is, himself, not observant, but he is extremely well-connected. If we make him Guest of Honor at our banquet, we can probably bring in many hundreds of thousands of dollars through his business and personal connections. Is there any halachic problem with our doing this?”

Question #2: Communal predicament

“There is an individual in our community who has been very helpful to the frum community but who is not observant. Are we permitted to honor him with an aliyah?”

Question #3: Kiruv predicament

Chani asks: “An old classmate of mine has fallen far from Yiddishkeit, unfortunately, and I believe that I am the only frum friend with whom she still keeps contact. Tragically, she recently became engaged to a non-Jew, and she desperately wants me to attend the engagement party. She knows that I do not approve of this relationship. May I attend, because I am concerned that, should I not show up, she will cut off her last contact with anything Jewish?”

Introduction:

All of the above questions require us to study the Torah’s prohibition against chanufah (sometimes pronounced “chanifah“), a word usually, but somewhat inaccurately, translated as “flattery.” Although the word chanufah in Modern Hebrew means “flattery,” and, indeed, is even occasionally used by Chazal in this sense, the prohibition against chanufah has a different meaning. Chanufah is the deception that occurs when someone encourages the performance of misdeeds, aveiros, or when someone fraudulently misrepresents something as Torah or as acceptable behavior when it is not.

The primary case of chanufah is when someone sees or knows that a person sinned and tells the sinner that he did nothing wrong or, worse still, tells the sinner that the sinful act was the correct thing to do. We can refer to this case as “first degree chanufah,” a sin that has very serious ramifications, as we will soon see. The person who violates the prohibition of chanufah is sometimes called a mechaneif, a chanaf, or a chanfan, all of which are different ways of saying the same thing. The Gemara states that chanafim are one of the four groups of people she’einam mekablei penei hashechinah, who will not be allowed to welcome the Shechinah, Hashem’s Divine Presence (Sotah 42a).

Which prohibition does one violate?

According to many Rishonim (Yerei’im; Ramban’s Torah Commentary to Bamidbar 35:33), there is a specific prohibition of the Torah, one of the 613 mitzvos, called chanufah, which is derived from the words of the Torah, velo sachanifu es ha’aretz (Bamidbar 35:33). Those authorities who do not count chanufah as one of the 613 mitzvos still agree with the prohibitions that we will describe, but categorize its violation under one of the other mitzvos of the Torah.

Why is chanufah prohibited?

Chanufah is prohibited for several reasons. Firstly, we are supposed to encourage people to do Hashem’s Will and to discourage them from violating His wishes and instructions. Chanufah does the opposite: it causes the offender to continue his malevolent ways and dissipates his interest and enthusiasm to do teshuvah. Thus, it harms the sinner even more than anyone else. In addition, chanufah encourages other people to respect and emulate the evildoer’s nefarious deeds. Furthermore, by providing inappropriate value to the misdeed, it also causes chillul Hashem, desecrating Hashem’s Holy Name. Someone who flatters an evildoer demonstrates that he is more concerned not to offend the sinner than he is about being disrespectful to Hashem, which is an even bigger chillul Hashem (Tosafos, Sotah 41b s.v. oso).

Distorting the Torah

There is yet another reason why chanufah is prohibited: because it falsifies the Torah (Shu’t Igros Moshe, Orach Chayim 2:51). The mechanef has told the sinner that what is prohibited is permitted, which, in itself, is a very severe transgression. The Maharshal (Yam shel Shelomoh, Bava Kama 4:9) proves that to falsify or distort the Torah is a sin on the level of yeihareig ve’al ya’avor, for which one is required to give up his life rather than violate it – which means that it is more serious than transgressing almost any of the other mitzvos, and it is certainly more serious than desecrating Shabbos or consuming non-kosher food. Falsifying the Torah is equivalent to denying the entire Torah, which is why one is required to sacrifice one’s life, rather than misrepresent a Torah truth. Thus, the most extreme situation of chanufah, in which one tells a wrongdoer that it is permitted to violate the Torah, includes the serious prohibitions of chillul Hashem and denying the authenticity of the entire Torah.

While some authorities rule that one must endanger oneself rather than violate chanufah (Shaarei Teshuvah, 3:188), others contend that this is not required. According to the second approach, chanufah should not be treated more seriously than Shabbos, kashrus and most other Torah laws that are superseded in a situation of risk to one’s life (see Tosafos, Sotah 41b s.v. kol). Those that disagree understand that chanufah, which includes denying the authenticity of the entire Torah, merits this level of serious consideration (see Igros Moshe).

The story of Agrippas

To demonstrate how serious this prohibition is, the Gemara (Sotah 41b) shares with us the following narrative: King Agrippas (who reigned towards the end of the Second Beis Hamikdash) was an excellent ruler, highly respectful of the Gedolei Torah of his era and committed to the observance and spreading of Torah and mitzvos. Notwithstanding his many good qualities, calling himself “King” over the Jewish people violated halachah, since he was descended from gentile slaves, and the Torah states, lo suchal laseis alecha ish nachri asher lo achicha hu, “You may not place over yourselves a gentile who is not your brother” (Devarim 17:15). Agrippas realized that he was not permitted to be king. When Agrippas reached the words of the Torah where it prohibits appointing a king unless he is native Jewish, his eyes began to tear, for he realized that he, himself, was ruling in violation of this law. At that moment, the Sages present told him, “Don’t worry, Agrippas. You are our brother,” thus approving his reign, in violation of the Torah.

The Gemara says that the leaders of the Jews should have been destroyed for violating chanufah, and, at that moment, many catastrophic occurrences befell the Jewish people and many lives were lost. Granted that Agrippas was concerned about Torah and mitzvos, the halachah still forbade him from being king. Although the Sages were in no position to admonish him, it was forbidden to encourage his misdeed. Instead,they should have remained silent (Tosafos, Sotah 41b s.v. oso), which would have been understood as a respectful disapproval.

Levels of chanufah

Although the most obvious instance of chanufah is telling an evildoer that he has done nothing wrong, any action that encourages sinful deeds is included under the general heading of chanufah. Rabbeinu Yonah, in his monumental work Shaarei Teshuvah (3:187-199), explains that there are nine levels of chanufah. The highest level is, of course, telling an evildoer that his performing a sin is acceptable. The other categories are all instances where the mechanef does not praise the sin itself, but lessens the gravity of the sin in an indirect way. Let us see how this manifests itself.

Praising publicly

Honoring a malefactor violates chanufah, even when the mechanef says nothing to justify the wrongdoer’s misdeeds. Although, in this instance, the mechanef did not overtly encourage or condone the misdeed, praising a sinner as a “good person” implies that the sin is acceptable, which is chanufah.

For example, Shimon, president of the yeshivah, decides to make Mr. Wealthy, whose fortune was made in very scandalous ways, the Guest of Honor at its annual dinner, since Mr. Wealthy’s contacts can certainly help the yeshivah.

Some contemporary authors (Lerei’acha Kamocha, Volume 1, Page 102) contend that one violates the prohibition of chanufah even when the person who sinned is unaware that what he is doing is wrong, such as, he is uneducated about Judaism.

Complimenting a sinner

Another category is someone who praises an evildoer in private, although he is careful not to praise the offender in the presence of other people, so that they are not influenced by his wicked ways. For example, Levi knows that it is chanufah to introduce Mr. Scoundrel publicly as a superior individual, and therefore he is careful not to praise Scoundrel in front of others. However, in private, Levi tells Scoundrel what a great guy he is. This is also chanufah, because the sinner, hearing the flattery, feels no motivation to repent; after all, even Levi thinks he is righteous. The wrongdoer fails to comprehend that he needs to reevaluate his priorities and his deeds, and this error was encouraged by the mechanef.

Failure to protest

Rabbeinu Yonah lists several other categories of chanufah, most of which we will touch on briefly. One type of chanufah is when someone refrains from reprimanding evildoers when he has the opportunity to do so. Another, similar example is that someone who is in a position to protest a misdeed and fails to do so violates chanufah. These last examples of chanufah are all passive, rather than active, yet we see clearly why the lack of protest encourages sin.

Example: A group that calls itself Jewish is backing an initiative that is against what Torah stands for. Failing to protest that this is not Judaism constitutes chanufah.

The halachah requires us to rebuke people whom we see doing something wrong, which is the mitzvah called tochachah. This mitzvah applies only as long as it is possible that the wrongdoer may listen.

Rules of tochachah

The halachah is that a person who is reproving someone for sinful actions must do so in a way that shows that he truly cares about the offender. The Rambam (Hilchos Dei’os 6:7) writes that he should explain that he is helping the offender earn a greater share in olam haba. “One who sees his friend sinning or following a lifestyle that is not good has a mitzvah to influence him to return to the proper way and to inform him that he is harming himself… The one who rebukes must do so privately and in a pleasant manner and soft voice.”

Gad’s next-door neighbor is not observant. To bring the neighbor back to Yiddishkeit, Gad must show sincere care about his neighbor. Once the neighbor feels that Gad truly cares, the neighbor sees the beauty of a frum lifestyle. At this point, Gad can explain to his neighbor how beneficial it is to observe mitzvos.

Tochachah that will be ignored

However, the halachah is that when it is clear that a sinner will ignore reproof, one should not attempt to admonish him, as it says in Mishlei (9, 8): Do not rebuke a scoffer lest he come to hate you; rebuke a wise man and he will love you. To quote the Gemara, Just as it is a mitzvah to say something that will be heeded, it is a mitzvah to refrain from saying something that will be disregarded (Yevamos 65b).

Remaining present

Another type of chanufah is someone who remains present while evildoers sin. For example, Asher is sitting with a group of people who are spreading gossip, speaking loshon hora, using foul language; or, the group includes scoffers who deride Torah and mitzvos. Asher knows that this group will not listen to his admonition, so there is no mitzvah of tochachah. Asher wants to know whether he may remain sitting among them. The answer is that it is prohibited to remain in their presence, because this implies that he agrees with and accepts their behavior. Staying with them encourages the sinners to continue their nefarious activities; they rally support for their evil ways from his ongoing presence. Granted that it may be counterproductive to admonish them, Asher may not remain with them and must “express” his disapproval by removing himself.

Honoring when inappropriate

Still another category of chanufah is someone who is careful not to speak in a flattering way about a wrongdoer, but, in order to maintain peace, he treats the wicked person respectfully, the way one treats a wealthy individual because of his financial success. Although there is a halachic source that one should honor the wealthy (Eruvin 86a), one may not honor the wicked.

After mentioning this category of chanufah, Rabbeinu Yonah limits its application. When the wicked person is in a position of authority, one may demonstrate respect to him in the way that people honor powerful people, out of fear. However, although one may act respectfully, one may not praise the wicked person. Treating him with respect is permitted, since everyone realizes that the evildoer is being treated with honor only because circumstances require it. This is the meaning of the statement of the Gemara: it is permitted to flatter evildoers in this world (Sotah 41b).

Other authorities offer a different explanation of this Gemara, contending that one may flatter a malefactor because not doing so could be dangerous (Shu’t Igros Moshe, Orach Chayim 2:51).

Therefore, if Yissachar finds himself in a position where he must lobby a highly influential Jew who has distanced himself from his people, Yissachar must be careful to know exactly what he may say and what he may not.

An inappropriate appointment

One of Rabbeinu Yonah’s categories requires some explanation, since it does not fit the use of the word flattery, but fits well our definition of chanufah as misrepresenting or falsifying Torah. Rabbeinu Yonah explains that, when a highly-respected personality acts out of self-interest and appoints someone to a rabbinic position for which the appointee is not competent, this appointment meets the criteria for chanufah. Rabbeinu Yonah says that this misrepresents a Torah value because the appointment causes people to trust the appointee in a way that is unwarranted or to rely on his ability to rule on halachah. The result is a hindrance to proper Torah observance and the judicial system. Therefore, if Rabbi Dan appoints his son to a rabbinic position for which the son is not qualified, this constitutes chanufah. All of these qualify as chanufah because the result is a misrepresentation of the real essence of Torah.

At this point, I would like to address the last of the questions asked above:

Chani asks: “An old classmate of mine has fallen far from Yiddishkeit, unfortunately, and I believe that I am the only frum friend with whom she still keeps contact. Tragically, she recently became engaged to a non-Jew, and she desperately wants me to attend the engagement party. She knows that I do not approve of this relationship. May I attend, because I am concerned that, should I not show up, she will cut off her last contact with anything Jewish?”

Chani may not attend the party, since this is clearly endorsing the engagement and allowing the classmate to delude herself into thinking that what she is doing is not that bad.

Rav Moshe’s teshuvah

Having explained the rules of chanufah as categorized by Rabbeinu Yonah, I will present a responsum of Rav Moshe Feinstein (Shu’t Igros Moshe, Orach Chayim 2:51) on the topic. The question pertained to a Jewish community that had received much benefit, both communally and individually, from a Jewish physician who was married to a gentile woman. The community had never given the physician an aliyah to the Torah or any other honor, but the rabbi of the community felt that it would be beneficial to honor the physician with opening and closing the aron kodesh. Rav Moshe notes that, although there are halachic issues involved in giving an aliyah to someone who does not observe Torah, there is no inherent halachic problem with having him open or close the aron kodesh. However, there is a potential halachic issue with whether giving a sinner this honor violates the prohibition against chanufah. Since the individual involved is flagrantly and publicly violating a basic aspect of Torah, honoring him in any way might violate the Torah.

Rav Moshe contends that, from the Gemara’s cases of chanufah, we see that the prohibition of chanufah includes only stating that something is permitted when it indeed is forbidden or praising an evildoer excessively. However, to praise an evildoer for the chesed he performs for the community is permitted. Rav Moshe even permits exaggerating a bit what this individual does in order to assure his future help and cooperation.

As a result, he rules that one may honor the intermarried physician with opening the aron kodesh, since this does not imply that we are accepting his objectionable lifestyle.

Conclusion

Many people feel that complimenting someone for what they have done is polite. We now realize that praising people is not always permissible, and that honoring someone may also not be the correct thing to do. Obviously, questions as to specific applications of this halachah should be referred to a posek.

May I Keep the Skeletons in the Closet?

Or

What Personal Information Must I Divulge?

The Gemara (Zevachim 88b) teaches that the me’il of the kohein gadol atoned for saying loshon hora…

Two sample shaylos I have been asked:

Question #1:

Mrs. Weiss (for obvious reasons, not her real name) calls me to discuss the following sensitive matter:

“I was treated successfully for a serious disease that my grandmother also had. The doctors feel that my daughter is at risk for this same disease. She is now entering the shidduchim parsha. Am I required to reveal this family information to shadchanim and/or potential shidduch partners, and, if so, at what point am I required to reveal this information? I am truly concerned that this could seriously complicate her shidduchim possibilities.”

Question #2:

A prominent talmid chacham is not originally from a frum background. His son, who is well-respected in his yeshiva, was recently involved in a shidduch. At a certain point, the talmid chacham’s family felt responsible to reveal certain significant information: The talmid chacham was not originally Jewish, and he and his Jewish wife did not discover Torah until after this son was born. They disclosed this information to the family of the girl involved, and her family decided to discontinue the shidduch.

He is now inquiring: “Must we disclose this information to future potential shidduchim?”

Although these situations are somewhat atypical, we all have medical, personal, and/or genealogical issues that we want to keep private. What information must we reveal about ourselves while arranging shidduchim for our children (or for ourselves)? And at what point must we disclose it?

What halachic issues are involved?

Before we analyze these cases, we need to elucidate some halachic topics. We can divide the discussion into three subtopics:

I. Emes — Honesty

II. Geneivas daas – Misleading someone

III. Onaah – Fraud

I.  EMES — HONESTY

A person must maintain total integrity in all his dealings – after all, the Torah commands us to emulate Hashem in all our deeds, and His seal is truth (Shabbos 55a). Someone who is meticulously honest will merit receiving the presence of the Shechinah (see Sotah 42a).

One may not be untruthful without any reason, and certainly not when it deceives or causes someone personal or financial harm. For example, one may not deny damaging someone’s property. Similarly, one may not blame fictitious excess traffic for a tardy arrival at work, when it is simply because one left home too late. For the same reason, one may not deceive someone about a shidduch, by misinforming the other party. I will soon explain the details of this halacha.

HONESTY IS NOT ALWAYS THE BEST POLICY

Notwithstanding the responsibility to be straightforward, there are specific situations where the Torah advises one to be imprecise. For example, it is more important to avoid (1) creating machlokes, (2) embarrassing someone, or (3) hurting his feelings or reputation than it is to disclose the entire truth (Bava Metzia 23b with Rif and Tosafos). In situations where a full exposé may cause one of these negative results, one should omit the detrimental information, although it is preferable to avoid fabricating a story (see Chofetz Chayim, Hilchos Rechilus 1:8). If there is no choice, it is preferred even to fabricate a story, rather than embarrass someone or hurt his feelings or reputation. If a correct answer may cause machlokes, one must modify the truth, rather than create ill feeling (Yevamos 65b).

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

II. GENEIVAS DAAS – MISLEADING SOMEONE

Geneivas daas, literally, “stealing a mind,” means creating a false impression – that is, deluding another person’s perception of reality. The Gemara (Chullin 94a) rules asur lignov da’as habri’os, “it is prohibited to steal someone’s mind.” One example of this is someone who acts as a big tzaddik in front of people, but is less halachically meticulous in private (Tosafos, Bechoros 31a s.v. ika). This unwarranted display of righteousness is a form of deception. Another example is a gentile who asked his Jewish landlord to place a mezuzah on his door; Rav Moshe Feinstein prohibited placing an invalid mezuzah on the door, because of geneivas daas (Shu”t Igros Moshe, Yoreh Deah 1:184).

A different type of geneivas daas is misleading someone to feel indebted when this is unwarranted. An example of this is to beg someone to join you for a meal, when you know he will not accept (Chullin 94a, as explained by Orach Meisharim 24:5), and you do not really want to invite him. The invited party feels obligated to reciprocate this false invitation.

Geneivas daas can happen in shidduchim situations, such as by implying that one intends to provide financial support for a yeshiva scholar, when one has no intention or ability to do so, or by implying that one is a big masmid or talmid chacham, when one is not (see Shu”t Chasam Sofer, Even Ha’ezer #82).

III. ONA’AH — FRAUD

Misrepresenting a product or service in order to make a sale is a form of cheating, such as painting an item to hide a defect. A modern instance of ona’ah is insider trading, purchasing or selling a stock or commodity on the basis of information that is unavailable to the public. This is forbidden, unless one notifies the other party of this information.

In shidduchim, the same rule is true: subject to some exceptions that I will explain shortly, one must notify the other party of information that might be of concern, which I will refer to as “blemishes,” although they are not blemishes in the usual sense.

MEKACH TA’US – INVALIDATING THE MARRIAGE

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

Here are a few interesting examples:

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

OTHER SERIOUS BLEMISHES

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

CAN’T SMELL

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

Withholding information concerning inability to have children is certainly a mekach ta’us. In this last situation, a physician who is aware that his patient cannot have children is required to reveal this information to the other side, even though this violates patient confidentiality (Shu”t Tzitz Eliezer 16:4).

WHEN TO TELL?

In most instances, there is no requirement to notify the other party or a shadchan of any of these blemishes at the time that a shidduch is suggested. The Sefer Chassidim that I quoted above does not mention at what point one must notify the other party of the shortcoming. Contemporary poskim I spoke with feel that one should reveal this information after the couple has met a few times, about the time that the relationship is beginning to get serious. There is no requirement for the parties to tell a shadchan.

However, if one knows that the other party will reject the shidduch because of this blemish, I would recommend forgoing this shidduch to begin with. For example, if one knows that a particular family prides itself on a pure pedigree, don’t pursue a shidduch with them if you know that they will ultimately reject it when they discover that your great-uncle was not observant. A very serious blemish, such as the inability to have children, should be discussed in advance, since most people will invalidate a shidduch for this reason.

WHAT MAY ONE HIDE?

What type of information may one withhold?

KNOWN INFORMATION

It is halachically deceitful for a seller to withhold important information that the buyer cannot find out. However, the seller is not required to disclose a problem that the buyer could discover. Furthermore, as long as the buyer could have noticed something that may arouse attention, there is no geneivas daas and no ona’ah in making the sale (Shu”t Igros Moshe, Yoreh Deah 1:31). For example, if someone is selling a house with a drop ceiling, he is not required to notify the buyer that there was damage above the ceiling, since a drop ceiling in a residence arouses attention. Similarly, if the entire neighborhood is susceptible to flooded basements, the seller does not need to mention that his basement has a flooding problem. If the buyer asks directly, the seller must answer honestly (Shu”t Igros Moshe, Yoreh Deah 1:31).

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

INSIGNIFICANT INFORMATION

A second category of information that need not be revealed includes factors that are insignificant to the buyer. One is not required to provide an in-depth list of every shortcoming that the merchandise has. Similarly, shidduchim do not require revealing every possible medical or yichus issue. The Chofetz Chayim distinguishes between a medical issue that one must reveal and a “weakness,” that one need not. Thus, someone need not reveal minor ailments that would not disturb the average person.

Although I know rabbonim who disagree with this position, I feel that juvenile diabetes is a malady that must be mentioned, whereas hay fever and similar allergies may be ignored. If one is uncertain whether a specific medical issue is significant enough to mention, ask a shaylah. My usual litmus test is: if the issue is significant enough that one might want to hide it, it is something that one should tell.

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

“I was treated successfully for a serious disease that my grandmother also had. The doctors feel that my daughter is at risk for this same disease. She is now entering the shidduchim parsha. Am I required to reveal this family information to shadchanim and/or potential shidduch partners, and, if so, at what point am I required to reveal this information? I am truly concerned that this could seriously complicate her shidduchim possibilities.”

Most poskim with whom I discussed the shaylah contended that one should reveal this information to the other side, after the couple has gotten to know one another and is interested in pursuing the relationship. One rav I spoke to disagreed. He contended that since the problem can be caught early and treated successfully, one need not divulge this information at all. All opinions agree that one has absolutely no requirement to mention this information to a shadchan.

Now let us discuss the second case I mentioned earlier:

A prominent talmid chacham was not Jewish at the time that his son was born. Is he required to release this information to future potential shidduchim?

This question takes us into a different area of concern about shidduchim – yichus, a subject of much halachic discussion. Some poskim sometimes permit hiding this type of information, whereas others prohibit this under all circumstances.

This debate centers on the following story. The Gemara discusses whether someone who has a gentile father and a Jewish mother is considered a mamzer who may not marry a Jew or not. The Gemara concludes that he may marry a Jew, and most halachic authorities rule that he is fully Jewish.

Notwithstanding this ruling, the Gemara (Yevamos 45a) records two identical anecdotes where someone whose father was not Jewish was unable to find anyone in the Jewish community willing to marry him. Although it was halachically permitted for him to marry, people considered this yichus issue serious enough that they did not want him marrying their daughters.

He came to the local gadol — in one case, Rav Yehudah, and in the other, Rava — who advised him to find a wife by relocating to a community where no one knows his past.

The question is: If he is required to reveal that his father is not Jewish, what does he gain by relocating – once he reveals his blemish, people will, once again, be uninterested in his marrying into their family!

Several prominent poskim, therefore, conclude that he is not required to reveal his family blemish, since his lineage will not affect his ability to be a good husband (Shu”t Imrei Yosher 2:114:8; Kehillas Yaakov, Yevamos #38 or #44, depending on the edition). Others dispute this conclusion, contending that one must reveal information like this before a shidduch is formalized, and offering different explanations how he would find a match in the new community (Rav E. Y. Valdenberg, quoted by Nishmas Avraham,volume 3, page 26, 251- 252).

Whether the talmid chacham of our second question is required to reveal his family defect depends on this dispute. According to many authorities, there is no requirement to disclose that he was not born Jewish, whereas others disagree.

As I mentioned earlier, almost all of us have shaylos regarding what we are required or not required to disclose about shidduchim. May we all have only nachas from our children and their families!

The Hoop and the Drum – How to be a Good Neighbor

arothman

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

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

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

Question #3: There is always such a racket upstairs! I am certain that their kids are rollerblading or playing basketball right over my head, but their mother insists that they are just normal, active children. What may I do to improve the situation that is halachically acceptable and will not land me in jail?

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

BACKGROUND TO THE SHAYLOS

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

AN EXCEPTION

There is an exception to this general principle: a neighbor may prevent a store from opening in a residential property. Why is a store different from other livelihoods? Because a store generates a lot of foot traffic, a neighbor has the halachic right to prevent the noise and bustle.

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

The reason is that, although the discomfort generated by the store may sometimes be less than the heat of the oven, the Mishnah forbade the store because its proprietor can sell his wares in the marketplace, which, in that era, was the primary business location in town. Since it was unnecessary to sell merchandise in one’s house, insisting that a neighbor sell his wares elsewhere did not jeopardize his livelihood. Manufacturing, on the other hand, was generally done in people’s homes (Shu’t Chasam Sofer #92).

TWO PRECLUDING USES

Of course, we then need to clarify the next issue: What is the halacha when two permissible domestic uses preclude one another? For example, Upstairs wants to use his house as a warehouse to store grain, whereas Downstairs wants to use his house as a bakery. Both of these uses are considered “typical domestic use,” since each is using his domicile as a means of earning his livelihood. However, the two uses are mutually exclusive, since the heat rising from the bakery will ruin the grain. May Upstairs prevent his neighbor from baking?

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

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

In earlier times, most people making a living from crafts, small manufacturing, other cottage industries or trading used their house as their base of operation. Thus, using your house as a bakery, factory, or warehouse was normal household use.

DO LOCAL LAW AND CUSTOM AFFECT THESE HALACHOS?

Indeed they do. In general, halachos that involve financial arrangements between two parties are governed by the prevalent local practice. This is called, hakol keminhag ha’medinah, “everything follows local custom.” The rationale is that the parties assume that local custom governs their relationships, and includes that people buy or rent a house or apartment assuming that they and the neighbors will follow the accepted local norm. Therefore, today one may not open a bakery or dyeing operation in a residential building since it violates common practice.

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

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

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

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

THE DRUMMER

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

Is drumming in your house an accepted practice? Can one claim that this is a permitted hobby in a residential neighborhood? In addition, can one claim that this is necessary for one’s livelihood?

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

Thus, if Grandma moved into a retirement community where one would assume that everything will be nice and quiet, she can certainly insist that her neighbor drum elsewhere.

WHAT IS THE HALACHA IF THERE IS NO LOCAL CUSTOM?

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

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

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

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

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

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

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

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

NOISY NEIGHBORS

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

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

Similarly, question #2 also hinges on whether the neighbor’s noise is abnormal, regardless of who lives next door. If the neighbor is a bit noisy, and the complaining neighbor is merely more sensitive than most people, there are no grounds to require the termination of the lease. On the other hand, if the neighbor is really objectionable, the landlord should terminate their lease on this basis.

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

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

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

HOOP VERSUS CLOTHESLINE

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

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

The Halachos of Book, Wine, and Restaurant Reviews

The entire story of Yosef being sold to Egypt was a result of a “critical review…”

Photo by EmZed from FreeImages

Someone once sent me the following email with the following series of shaylos:

Dear Rabbi Kaganoff,

1. Is a person allowed to write balanced reviews of books? This question concerns hashkafah-type works, halachic works, self-help books, as well as novels.

Obviously, there are many halachic ramifications, including lashon hora, etc. I would specifically like to know if one is allowed to review unfavorably a work that the reviewer finds seriously lacking.

2. May one write reviews of other products, such as wine or restaurants?

3. If a person asks my opinion of a book, a wine, or a restaurant, may I answer truthfully, even if my personal negative opinion may result in the person choosing another product?

With much thanks in advance, Aaron Bernstein

Before I answer Aaron’s question, I must first present the halachos of lashon hora that apply here.

Saying something true that may damage someone’s professional or business reputation, or causes him financial harm, constitutes lashon hora, even when nothing negative is intended.[1] Thus, random schmoozing about the quality of different workmen’s skills, the halachic prowess of different talmidei chachomim, or the quality of education provided by a certain school constitutes lashon hora.

However, when I need certain information, I may ask people who might know. For example, if I need to have some home repairs performed, I may “ask around” what experience other people have had with various professionals. I should tell them why I need to know, and they should tell me only what is relevant to my needs.

Examples:

1. Gilah hired a home-improvement contractor who was skilled and efficient, but inexperienced in certain plumbing work. Ahuva asks Gilah whether the contractor was good. Gilah should reply that he was skilled and efficient, but does Ahuva intend to include any plumbing? If the reply is negative, Gilah should say nothing, since Ahuva understands that if she changes her mind and decides to include plumbing, she should discuss it with Gilah first. If the reply is that there is plumbing to be done, Gilah should tell her that the contractor’s work was excellent and efficient, but that he seemed somewhat inexperienced in plumbing. Gilah should suggest that, perhaps, by now he has the experience, and Ahuva also has the option to ask him to subcontract the plumbing.

2. Yaakov moves to a new neighborhood and asks Michael who the local poskim are. Michael can mention one, some, or all of the local available poskim, but should not mention any disqualifying factors about them, such as, Rabbi X is curt, Rabbi Y is very machmir, or Rabbi Z’s shiurim are unclear. Michael may ask Yaakov what qualities he is looking for in a rav and then make recommendations, based on Yaakov’s answer.

What if I know that the mechanic is dishonest?

Yitzchok and Esther just moved to my neighborhood and mention to me that they are planning to bring their car, which is making an unusual noise, to Gonif’s Service Station. I have found the proprietor of Gonif’s to be very dishonest. May I say something to Yitzchok and Esther?

The halacha is that not only may I say something to them, but I am obligated to do so.[2] This is because I am responsible to make sure that Yitzchok and Esther are not hurt financially by the crooked repair shop. This is included in the mitzvah of lo saamod al dam rei’echa, do not stand by idly while your friend becomes injured.[3]

However, exactly how I impart this information to Yitzchok and Esther depends on the circumstances.

Why is this so?

In any situation where I must protect someone from harm, whether it is a potentially harmful shidduch, damaging chinuch or a bad business deal, there are five rules that govern what I may say:

1. Is it bad?

Be certain that what may transpire (if I do not intercede) is, indeed, bad. Often, one assumes that something is worse than it really is. Later in this article, I will describe a case that appears bad, while halachically it is not considered so. In the case at hand, I am responsible to see that Yitzchok and Esther are not deceived by the repair shop. By warning them, I have fulfilled the first rule.

2. No exaggerating

Do not exaggerate, describing the situation as worse than it is. In this case, even if I need to describe Gonif’s dishonesty (which I can probably avoid, as we will explain later), I should describe only what I personally know, and I must be careful not to embellish or include hearsay.

3. Appropriate motivation

One’s motivation must be to protect the innocent person from harm, not to bring retribution on the person responsible for causing the harm. In our case, this means that my goal is to protect Yitzchok and Esther from harm, not to “get back” at Gonif’s. The reason for this condition is that one violates the prohibition of saying lashon hora if one has evil intent, even in a case when one may otherwise transmit the information.[4]

4. No other choice

Can I accomplish what I need to without saying lashon hora? The answer to this question depends on the situation. What do I need to accomplish? In the case of the crooked repair shop, my goal is that Yitzchok and Esther not be victimized by the shop. I can accomplish this in several different ways, some of which do not require tarnishing the repair shop’s reputation. For example, if Yitzchok and Esther will heed my advice to take their car to “Careful and Honest Repairs” instead, I have no need to tell them that Gonif’s is a dishonest shop. In this instance, I have accomplished my purpose, without mentioning the dishonest acts I have witnessed.

5. Too damaging

Will the result of my sharing the negative information be more harmful to the perpetrator than what he should suffer according to halacha? For example, I know that Reuven’s professional work is sometimes substandard, and I discover that Shimon, who is known to back out on deals he has committed to, contracted Reuven to do work. Although under other circumstances I would not only be permitted, but even required, to notify someone of Reuven’s lack of professional skill, in this situation, I may not notify Shimon, because he may back out on Reuven in a way that contravenes halacha.

When is something not really bad?

In condition #1 above, I mentioned that there are situations that someone considers bad, but which are not considered bad, according to halacha. The background behind this shaylah will impact directly on our original shaylah about reviewing books, wines, and restaurants.

What is an example of this situation?

Chani sees Miriam, who is new in the neighborhood, about to enter a grocery store that Chani knows is expensive. May Chani tell Miriam that groceries in this store might cost more than at the competition? The Chafetz Chayim rules that one may not reveal this information.[5]

Why is it not permitted to save Miriam from overpaying?

The Chafetz Chayim rules that overpaying slightly for an item is not considered a “bad thing,” provided the storekeeper is within the halachic range of what he may charge. (A full explanation of how much the storekeeper may charge is beyond the focus of this article.)

Why is being overcharged not considered being harmed?

Since the storekeeper who charges higher prices is not doing anything halachically wrong, one may not hurt his livelihood by encouraging someone to purchase elsewhere. And if one does, this is lashon hora, which includes hurting someone’s livelihood.

Thus, there is a major difference between a dishonest repair shop and one that is more expensive. It is a mitzvah to steer someone away from a dishonest store, but it is forbidden to steer him away from a Jewish store that charges more, when the store is halachically permitted to do so.

What happens if someone moves to town and asks me where he can find kosher groceries?

You should tell him which local groceries sell kosher products that have the hechsherim he wants. You do not need to supply a complete list of the stores in the neighborhood, but it is permissible to mention only the stores that are less expensive. However, you may not tell him which stores are more expensive.

If someone knows that a third party plans to purchase an item from a store that tends to be expensive, do not say anything. Even though the purchaser could save money by buying elsewhere, the storekeeper is losing from your actions. One should not get involved in saving one person’s money at someone else’s expense.[6] However, if the proprietor of the store is not an observant Jew or not Jewish, you may tell the purchaser that there is a less expensive place to make his purchase.

On the other hand, if the storekeeper is doing something that is halachically prohibited, such as selling defective or misrepresented products, you should warn a person intending to make a purchase there.

Book reviews

With this background, we can now discuss Aaron Bernstein’s first shaylah: “Is a person allowed to write balanced reviews of books?”

What does the review accomplish?

This depends on the type of book being reviewed. Let us begin with one category: Jewish novels.

Why do secular sources review books?

So that people can decide whether they will enjoy the book, and whether they should spend the money to purchase it.

May I do this? What “harm” am I protecting someone from by telling him to avoid purchasing this book? On the other hand, by warning people away from the book, I am hurting the livelihood of those who have invested time and money, intending that this book will provide them parnasah.

This is parallel to the case where one Jewish storeowner, in his desire to make a living, charges a bit more than his competitors. The halacha there is that I may not tell someone to avoid his store, since I am harming the storekeeper. Similarly, I may not tell people to save money by avoiding the purchase of a book. One may, however, publish a review that describes the positive aspects of a book.

Of course, this means that the most standard book reviews and other reviews common in secular circles contravene halachic guidelines. One may include a book review column only if it merely informs people of new publications, but does not provide negative critical review.

However, if a work contains flaws in hashkafah, one is required to refute the author’s mistakes.

Similarly, if a halacha work is flawed, one should write a review to clarify that the work contains errors.

Example:

Many years ago, I was asked by a well-known Jewish publication to review a particular halachic work. When I read the work, I felt it sorely lacking in certain areas — particularly hashkafah, and that it could easily be used as a resource for someone who would then behave in a questionable or non-halachic fashion. I pointed out these concerns of mine in the review, because, in this situation, it was very important to avoid serious halachic mishaps.

If the work reflects an approach to halacha different from one’s own, then it depends: if the halacha quoted is reliable, one may draw the reader’s attention to the fact that it reflects a different halachic approach.

Now we can look at the second question:

“2. May one write reviews of other products, such as wine or restaurants?”

We already know the answer to this question. If the purpose of the review is to discourage people from buying a product or eating in a restaurant, one may not write the review. But one may publish a review that contains the positive aspects of the product.

What if someone asks me my opinion of a certain wine or restaurant?

If you have a poor opinion of the wine, restaurant or book, you should inquire, “What are you looking for?” Then, when the questioner clarifies what he wants, direct him to the product that most satisfies his needs and interests. If the wine or restaurant in question may not be what he wants, explain to him what aspects would meet his needs, and what might not. This is permitted, because they have come to you to ask for information about the item. However, one may not simply put this information in the media for everyone, including readers who have no need of, or interest in, the information.

For example, you do not have a positive opinion of a restaurant. Why? You think the service is poor. Would that be a factor to this person? If you are not certain, but you think there are other redeeming reasons why this person may want to eat there anyway, say it in a way that does not reflect too negatively upon the restaurant, such as, “Once, when I was there, the service was a bit slow. But I don’t dine there very often.”

One of the rabbonim to whom I sent this article for his opinion wrote me the following: “I don’t agree with what you wrote about restaurants. If one has a criticism that doesn’t necessarily make it an undesirable place for the one asking, I think that it is better to just say that ‘I don’t go there too often.’ The person won’t suffer by trying, and he will decide if he is happy with it.”

Could there be a frum kosher wine review?

Possibly, but only if its readership was limited to people who are shopping for wines and looking for advice.

Consumer Reports

According to halacha, may one publish a magazine like Consumer Reports?

Although the editors of this magazine have not sought my opinion, I think that they may publish the results of their research, if it is read only by people interested in purchasing these items and not by a general audience.

In conclusion, we see that the halachic approach to this entire issue is very different from that of contemporary society. We must remember that we examine our behavior through the prism of halacha and not from that of society.


[1] Rambam, Hilchos Dei’os 7:5

[2] Chofetz Chayim, Hilchos Rechilus 9:1

[3] See Be’er Mayim Chayim ad loc.

[4] See Be’er Mayim Chayim, Hilchos Rechilus 9:3

[5] Be’er Mayim Chayim, Hilchos Rechilus, 9:27

[6] See Be’er Mayim Chayim, Hilchos Rechilus 9:27 and commentaries

Do I Have to Tell the Truth?‎

Question #1: The Truth

May I take credit for something that I did not do myself?

Question #2: The Whole Truth

Must I make a full disclosure when it may cause a negative outcome?

Question #3: Nothing but the Truth!

Is it permitted to “add” to the truth?

Introduction:

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

Conversely, the Gemara (Sanhedrin 103a) teaches that habitual liars will not merit to receive the Shechinah’s presence. This is derived from the pasuk, Dover shekarim lo yikon leneged einai, “He who speaks lies will not be established in My sight” (Tehillim 101:7). A person who gains nothing from his lies and simply has no regard for telling the truth is included in the “kat shakranim” (pack of liars) who will not merit to meet Hashem (Shaarei Teshuvah 3:181, 186). This category also includes people who fail to keep their word (Shaarei Teshuvah 3:183).

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

Therefore, the Torah warns, Midevar sheker tirchak, “Keep distant from a false matter” (Shemos 23:7). Nowhere else does the Torah command that we must “keep distant” from an activity (Sefer Hachinuch #74), which emphasizes how far we must keep from falsehood (Mesilas Yesharim, Chapter 11). Even taking credit for something that one did not do is considered a falsehood (Shaarei Teshuvah 3:184).

Truth in education

Regarding chinuch, we are taught, “Do not promise something to a child without giving it to him, because this teaches him to lie” (Sukkah 46b).

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

The whole truth

Despite the importance of telling the truth, there are situations where the Torah allows one to be imprecise because of a greater good. It is of paramount importance not to hurt people’s feelings, harm their reputation, embarrass them or create machlokes (Bava Metzia 23b with Rif and Tosafos). When placed in a situation in which full disclosure will cause one of these negative outcomes, one should avoid fabricating a story, but should omit the harmful information (see Chofetz Chayim, Hilchos Rechilus 1:8). However, if machlokes may result if one answers truthfully, one must modify the truth, rather than create ill feeling.

Why?

Why is it permitted to alter the facts in order to avoid hurting someone’s feelings?

In general, the Torah does not accept that the end justifies the means. Thus, one is generally not permitted to do something halachically wrong in order to accomplish a positive result. However, altering the truth to avoid machlokes or to save someone from hurt is an exception to this rule.

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

When should the truth be modified?

There are five categories of cases when modifying the truth is permitted. They are:

1. Shalom

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

It should be noted that when there is no way to avoid modifying the truth for the sake of shalom, it is not only permitted but obligatory in order to avoid machlokes or hurting someone’s feelings (Rif, Bava Metzia 23b).

Here is an example: Reuven refused to lend Shimon money, because he felt that Shimon was a credit risk.Shimon discovered that Reuven loaned money to someone else, whereupon Shimon asked Reuven why his (Shimon’s) request was turned down. To avoid hurting Shimon’s feelings or creating machlokes, Reuven may tell him that, at the time, he had no money available to lend. As mentioned above, this approach should be used only as a last resort. It is preferable for Reuven to change the subject or respond to the answer in a different, inoffensive way that is not a fabrication.

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

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

2. Modesty

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

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

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

A person heavily involved in chesed projects is permitted to describe his full role, in order to encourage other people to be involved in chesed.

Someone who observes a halachic stringency must try to keep it a secret. One is even permitted to give a false reason for his behavior, rather than explain that he observes a chumrah (see Brachos 53b). For example, while attending a simcha where one’s chumrah is not observed, he should hide the fact that he is not eating. If someone notices that he is not eating, he may say that he already attended another simcha and ate there. He may say this, even if he did not attend a simcha that night and ate at home, since his statement is true (he has attended other smachos previously). This is better than saying that one’s stomach is upset (when it is not), which is an outright untruth. However, if he feels that the only excuse he can use is that he has an upset stomach, he may say so, even if he is feeling fine.

It should be noted that, in such cases as well, modifying the truth to act modestly is not required, but merely permitted (Rif to Bava Metzia 23b; Sefer Hassidim #1061).

3. To save embarrassment

If necessary, one may modify the truth to save from an embarrassing situation or to protect privacy. Therefore, if someone asks me a question that infringes on my privacy, I may give him an untrue answer, if there is no other way to avoid the situation without being offensive (Bava Metzia 23b). It is usually better to give an untrue answer than to point out that the question was inappropriate, which might embarrass the person asking the question. Similarly, if asked about someone’s personal habits, I may modify my answer, if the truth reveals private information that the person does not want divulged (Maharal, Bava Metzia 23b).

It is permitted to modify the truth to save someone from embarrassment, even if it is myself that I am saving and I also created the uncomfortable situation. For the same reason, if asked a question on a Gemara to which I do not know the answer but should, I may reply that I have not learned that Gemara recently, even if I have (see Rambam, Hilchos Aveidah 14:13and Lechem Mishneh).

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

It is forbidden to be untruthful if it causes financial harm. For example, it is prohibited to deny having damaged someone’s property — even if the goal is to avoid embarrassment — if this may exempt him from compensating the owner. Similarly, it is prohibited to tell the boss that one is late to work because of a fictitious traffic tie-up.

Similarly, one may not deceive someone about a shidduch by providing misinformation that might affect the other party.

Truth in litigation

There is no heter, whatsoever, to mislead a Beis Din, even if I know that the other side is misrepresenting the facts. I may set the record straight and say that information is being fabricated.

Money received through a din Torah because of misrepresentation is considered stolen. Furthermore, a lawyer or to’en rabbani (rabbinic legal adviser) who suggests withholding relevant information in order to win a case violates several serious prohibitions.

4. Protecting someone

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

A few examples will clarify what we mean. An unsavory or untrustworthy person asks you where you were a guest last Shabbos, because he wants to invite himself to the same host. Since the results may be detrimental, you may tell the untrustworthy person that you ate at home, even if this is not true. Early poskim describe the following situation: “Someone who is asked how he was received as a guest may lie, to protect the host from becoming inundated with more guests than he can afford” (Rashi, Bava Metzia 24a).

Similarly, if I am asked by someone who is a poor credit risk where he can borrow money, I may tell him that I don’t know, rather than putting potential lenders in an uncomfortable position or placing them at risk.

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

The Gemara records several instances of this ruling (Eruvin 51a; Pesachim 27a; see Magen Avraham,Chapter 156). Here is one example: In pre-refrigeration days, vegetables cut up before Yom Kippur would spoil before the fast ended. Rav Yehudah noticed that the vegetables were being cut up on Yom Kippur in a way that violated the halacha, but was uncertain whether he would be obeyed if he told them to stop. To put an end to the practice, he told the perpetrators that he had received a letter from Rabbi Yochanan prohibiting it.

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

If I am asked questions that will lead in an undesirable direction, it is permitted to modify the truth in order to politely cut off the questioning. The Gemara tells us the following story: Alexander the Great once met the Talmudic scholars of the Negev and asked them several philosophic questions. When he asked them whether light was created first or darkness, they responded that this question cannot be answered. The Gemara points out that it states clearly that darkness existed before light(Bereishis 1:2-3). Nevertheless, the scholars refrained from answering Alexander, to forestall his asking other questions that might lead to blasphemy (Tamid 32a). Therefore, when you suspect someone may turn the conversation into a topic that you do not wish to discuss, you may change the subject or say that you do not know the answer to the question.

5. Exaggeration

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

Some contemporary poskim justify the widespread practice of printing wedding invitations knowing that the time on the invitation is earlier than the simcha will take place. Since this is intended to give people a sense of when the simcha will actually transpire, it does not violate the mitzvah of being truthful.

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

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

However, how could Rebbe make an untruthful statement? Because Bar Kappara understood Rebbe’s intent, this was not regarded as an untruth. Furthermore, Rebbe’s words, eini makircha mei’olam, could also mean “I do not truly know who you are,” words that are actually very truthful — does one human being ever really know another? (Orach Meisharim 9:ftn 2) Incidentally, we see that even a statement like this, which was fully understood, should preferably be expressed in a way that has a truthful meaning, as well.

From the foregoing, it is apparent that the halachos of telling the truth are far more complex than most people realize. Those who tell the truth will receive the presence of the Shechinah. Many special blessings are bestowed on someone who is meticulous about telling only the truth, as required by halacha.

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

Conclusion

Rav Yaakov Kamenetski was once asked why he lived so long. (Several Gemara discussions imply that it is proper to try to answer this question accurately.) After contemplating the question for a while, Rav Yaakov reluctantly answered, “Probably in the merit of the fact that I have never told a lie.”

Why is telling the truth a merit for longevity?

As mentioned earlier, someone who is meticulously honest and truthful will merit receiving the Shechinah’s presence (Orach Meisharim 9:ftn 3). The pasuk in Mishlei (16:15) teaches, be’or pnei Melech chayim, “Those who are in the light of the King will live.” Furthermore, Hashem’s brachos rest on those who imitate His ways, and His essence is truth (Sefer Hachinuch #74). Therefore, those who live with meticulous honesty are rewarded with long, productive lives. May we all merit this reward!

Honor the Elderly!

In the aseres hadibros, honoring parents features significantly, thus, we will discuss:

Question #1: Respect your elders?!

“Am I required to stand up anytime I see a senior citizen walking down the street?”

Question #2: Age before wisdom?!

“I give a daf yomi shiur. Many of those who attend are old enough to be my grandfather. Am I required to stand up for them when they arrive at the shiur?”

Question #3: Elder older?

“Does one older person need to stand up for another older person?”

Introduction

In parshas Kedoshim, the Torah teaches that there is a mitzvah to stand up before an older person and to treat a “zakein” with respect. The words of the posuk are: Mipnei seivah takum vehadarta penei zakein, “you should stand up for an older person and treat an ‘elder’ with respect” (Vayikra 19:32).

To begin with, we will raise several additional questions: How old does the person need to be to qualify as being “older”? Does it make a difference if it is an older man or an older woman? For how long must I remain standing? Is there any difference between someone who is “older,” in lashon kodesh, seivah, and someone who is an “elder,” which is the way I translated the word zakein? Is a demonstration of respect required, regardless of how religiously observant the older person is?

Elder or older?

I was very deliberate to translate the word zakein as “elder.” Indeed, the lashon kodesh word zakein, and the English word elder, carry the same two different meanings. The word zakein can mean an older person, but it can also mean a scholar, or someone who is respected for his sage advice and leadership qualities. Both meanings are similarly included in the English word “elder,” but not necessarily in the word “older.” Thus, the expression, “respect your elders,” does not have to refer to someone older than you are, since there can be a young elder, but it is difficult to have a young older.

The Gemara (Kiddushin 32b) presents a three-way dispute as to what type of older person, or “zakein,” is included in the mitzvah. According to the tanna kamma, the mitzvah applies only to someone who is both a Torah scholar and elderly. In his opinion, there is no requirement to stand up for a profound Torah scholar who is young. Rabbi Yosi Hagelili disagrees, contending that there is a mitzvah to rise and show respect both to an older person who is not a profound scholar, as long as he knows some Torah, and to a Torah scholar, even if he is young. A third tanna, Isi ben Yehudah, rules that there is a requirement to stand up for any Torah scholar and for an older person, provided the older person is basically Torah observant. (This reflects the opinion of Rabbeinu Tam, which is the approach accepted by the halachic authorities. According to Rashi, Isi ben Yehudah requires standing up for an older person, even if he is willingly non-observant, and even if he is a rosho.)

The Gemara (Kiddushin 32b-33a) concludes that the halacha follows the third tanna, Isi ben Yehudah, which is accepted by the halachic authorities. Thus, there is a requirement to stand up for an older person, if he is halachically observant, even if he is not a scholar.

The Rambam’s conclusion is that a young talmid chochom should demonstrate honor to someone elderly, even if the older person is not a talmid chochom. This means that he is required to rise slightly to demonstrate honor, but he is not required to stand up fully (Hilchos Talmud Torah 6:9, as explained by Tur Yoreh Deah 244 and later authorities). The poskim refer to this demonstration of honor as hiddur.

There is a minority opinion that no one is required to stand up fully before an older person who is not a Torah scholar, and that it is sufficient to rise slightly (hiddur), as a show of honor (Shu”t Binyamin Ze’ev #243; see Aruch Hashulchan, Yoreh Deah 244:10). However, the Tur (Yoreh Deah 244) and most later authorities do not accept this approach. They conclude that it is a mitzvas aseih min haTorah for anyone but a talmid chochom to stand up for an older person.

Why is a talmid chochom exempt?

This sounds strange! Where else do we have a mitzvah that applies to everyone but a talmid chochom? The answer is that the Torah’s mitzvah is to show respect to Torah scholars and to elderly people who are Torah observant. Of the two categories, a Torah scholar deserves greater respect. If a talmid chochom were obligated to stand up for a non-educated elderly person, this would mean that the Torah is respecting age before wisdom. In fact, the Torah respects Torah wisdom before age.

Nevertheless, the “young” talmid chochom should rise slightly to demonstrate his respect for the older person. Since rising slightly, without standing up completely, is not a tircha, this is not considered showing disrespect to the Torah that the young talmid chochom represents.

Age before wisdom?!

At this point, let us address the second of our opening questions: “I give a daf yomi shiur. Many of those who attend are old enough to be my grandfather. Am I required to stand up for them when they arrive at the shiur?”

In other words, is there a requirement for the rebbi to stand up for his talmid who qualifies as a seivah? This question is discussed by several acharonim. The work She’eiris Yaakov,by Rav Yisroel Yaakov Algazi, is quoted as ruling that the rebbi is required to stand up for his talmid, the seivah. However, the commentary Leiv Meivin, by Rav Bechor Yitzchak Navardo, a nineteenth-century, Turkish posek, proves that the rebbi is required to stand up for his talmid only when the seivah himself is a talmid chochom and only when the rebbi is not obviously a much greater scholar than the seivah (Hilchos Talmud Torah 6:9). In other words, the only time a rebbi is required to demonstrate honor to an older person who is his talmid is when they are both talmidei chochomim of approximately similar stature, such that the younger talmid chochom is not obviously a much greater scholar than the older one. Thus, whether our daf yomi maggid shiur is required to stand up for the golden-aged attendees of his shiur is a dispute between the She’eiris Yaakov and the Leiv Meivin.

An older woman

Is there a mitzvah to stand up for an older woman?

The Sefer Chassidim (#578) rules that there is. Presumably, he is referring to a woman who is halachically observant, even if she is not very knowledgeable about halacha. There are halachic authorities who may disagree with the ruling of the Sefer Chassidim (see Halachos Ketanos 1:154; Shu”t Beis Yehudah, Yoreh Deah #28; Birkei Yosef, Choshen Mishpat 17:5; Bris Olam #578).

Two elderlies

Is an elderly person required to rise for another elderly person?

The Tur suggests that two talmidei chachomim or two elderly people should show respect (hiddur) for one another, although they are not required to stand up fully. This approach is codified by the Shulchan Aruch (Yoreh Deah 244:8). Some authorities explain that this is only when the two are of approximately equal stature as talmidei chachomim. However, if one of the talmidei chachomim is a greater talmid chochom than the other, the “lesser” talmid chochom is required to stand up for his more learned colleague (Leiv Meivin).

How old?

For how old a person are you required to stand up?

In the context of this mitzvah, the halachic authorities mention what appear to be three different ages.

1. The Rambam (Hilchos Talmud Torah 6:9) says that the mitzvah applies to someone “pronouncedly old,” which does not appear to have an obvious, objective criterion.

2. Based on the words of the Mishnah in Pirkei Avos (end of Chapter 5), ben shiv’im le’seivah, the Tur and the Shulchan Aruch rule that these laws apply to a person of the age of 70.

3. The Arizal is quoted as being strict to observe this mitzvah for people who have reached the age of 60 (Birkei Yosef, Yoreh Deah 244:4).

However, the Tur explains that the Rambam’s term “pronouncedly old” means 70, and that he is not disputing the Rambam in this matter.

In addition, there are various interpretations why the Arizal applied this mitzvah to someone who achieved the age of 60. Most conclude that the Arizal agrees with the ruling of the Shulchan Aruch, but that he had a personal chumrah, which was not halachically required, to stand up for a person once the honoree turned 60. Therefore, most rule that even those who follow kabbalistic practices are required to rise only for someone who is 70 years old (Birkei Yosef, Yoreh Deah 244:1; Leiv Meivin).

The halachic conclusion follows the opinion of the Tur and the Shulchan Aruch, ruling that the requirement to stand up for an older person applies only when the older person is at least 70 years old. This halacha holds true today, notwithstanding that 70 is no longer considered advanced in age.

An older person may be mocheil on his honor, and someone who knows that a particular person really does not want people to stand up for him should follow the older person’s wishes. Disregarding his personal desire is not demonstrating respect.

No respect

There is no requirement to rise and show respect when you are in a place where demonstrating respect is inappropriate, such as a bathhouse or bathroom.

When do you stand?

The requirement to stand up for a talmid chochom or an older person applies only when he is within four amos, approximately seven feet, of where you are. There are exceptions to this rule. There is a requirement to stand up for the person who taught you most of the Torah that you know, called your rebbi muvhak. In this case, you are required to stand up once your see the rebbi walking by, even at a distance (Aruch Hashulchan, Yoreh Deah 244:13).

Why four amos?

If you stand up when the talmid chochom or the older person is within your four amos, it is apparent that the reason you stood up is to honor him.

Don’t lose work time

There is an interesting halachic ruling, that there is no requirement to rise and show respect when a person will lose work time as a result. Therefore, a self-employed person is not required to stand up, should he be working when an elderly person comes by, and a worker in the employ of someone else is not permitted to rise while he is working, since he is taking away from the time he owes his employer. In other words, an employee is not permitted to be machmir and stand up when it costs money to a third party. Although one can argue that, in today’s business environment which accepts reasonable coffee breaks and other occasional, brief interruptions, it is permitted for an employee to stand up to show respect for a talmid chochom, we learn a very important lesson how halacha views the responsibility of an employee to his employer. This discussion will be left for a different, future article.

Standing up while learning Torah

The halacha is that someone in the middle of studying Torah is required to stand up for a talmid chochom or for an elderly person (when the halacha requires, as explained above). This is because of a general rule that performing mitzvos of the Torah pushes aside studying Torah.

Transported

What is the halacha, if the elderly person is being carried or wheeled in a wheelchair? Is there still a responsibility to rise when he passes within four amos? The answer is that there is a responsibility to rise when the elderly person passes by, regardless as to whether he is walking or being transported (see Kiddushin 33b). Therefore, it is required to stand up when an older person passes you while he is being pushed in a wheelchair.

As I mentioned above, you are required to stand up for an elderly person, once he is within four amos of where you are. There is a dispute among authorities whether you may sit down as soon as the scholar, or elderly person, passes by, or whether you should wait to sit down until he has passed beyond your four amos (Birkei Yosef, Yoreh Deah 244:12; Aruch Hashulchan, Yoreh Deah 244:13).

At this point, we can address our opening question:

“Am I required to stand up anytime I see a senior citizen walking down the street?”

The answer is that if he is over seventy years old (or appears to be), observes halacha, and you are not busy earning a living, you are required to stand up for him, once he is within your four amos.

In shul or while davening?

Is there a mitzvah to stand up for a talmid chochom or an elderly person when you are in the middle of davening? There is an authority who contends that since you are in the middle of showing respect to Hashem, you should not, then, show respect for a human, who is, himself, required to show respect to Hashem (quoted by Birkei Yosef, Yoreh Deah 244:1). However, the other halachic authorities disagree, contending that fulfilling Hashem’s mitzvah is showing respect to Hashem, and, therefore, should be observed while you are davening (see Birkei Yosef ad locum and Shu”t Radbaz that he quotes).

Your whole house

The Birkei Yosef raises the following question: In general, halacha considers your entire house to be one area of four amos. This has many halachic ramifications. For example, upon awaking in the morning most people wash their hands somewhere in the house, without being careful that they walk less than four amos before doing so.

The question he raises is whether we consider the entire house to be four amos germane to standing up for an older person. If we do, that would mean that whenever you are indoors and you see an older person walking around or being transported in the same house, you are required to remain standing up for him until he reaches his destination, even if he never comes within your four amos!

The halachic authorities conclude that there is no difference between being inside or being outside – in either instance, you are not required to stand until the older person is within your four amos. This is because the point of four amos germane to this mitzvah is that a greater distance away is not apparent that you are standing to demonstrate honor. This is true whether you are indoors or outdoors, and, therefore, there is no requirement to stand up indoors for an older person until he is within your four amos (Birkei Yosef, Yoreh Deah 244:5).

Discordant scholar

The Aruch Hashulchan (Yoreh Deah 244:13) rules that there is no requirement to stand up to show respect for a Torah scholar who creates disputes that are not for the sake of Heaven. This ruling would also apply to an elderly person who creates disputes that are not lesheim shamayim. Even if he meets the age requirement and is observant, if he is a baal machlokess, there is no mitzvah to rise for him.

Can’t see

Does the mitzvah to stand up for a talmid chochom or an elderly person apply when the honoree will be unaware that you did so, such as, if he cannot see? The She’eilos Uteshuvos Halachos Ketanos (1:154) rules that you are not required to stand up for an older person who cannot see that you did so (quoted by Shearim Hametzuyanim Behalacha 144:5). However, many other authorities dispute this conclusion (Birkei Yosef, Yoreh Deah 244:2).

Conclusion

When the posuk (Bereishis 24:1) mentions that Avraham Avinu got older, it uses the expression, ba bayamim, “he came with his days,” the first time this expression occurs in Chumash, even though many people had lived much longer than Avraham. The Gemara explains that this was the first instance of a person looking like an old man. Most people are sensitive about looking older, but the Midrash writes that Avraham Avinu asked to look elderly, so that people would know to treat him with respect! As the Gemara expresses it, “Until the time of Avraham, there was no concept in the world of people looking old. Someone who wanted to talk to Avraham, would (by mistake) go to Yitzchok, since they looked so similar, and vice versa. Avraham then prayed to Hashem, and the concept of appearing elderly began for the first time in history” (Bava Metzia 87a). The Bereishis Rabbah adds, “Avraham requested to look old. He said to Hashem, ‘Creator of all worlds, a man and his son can arrive in a place, and no one knows which of them to honor. If you crown him with the appearance of being elderly, people know whom to honor!’ Hashem answered him. ‘You requested it; it will begin with you.’ From the beginning of the Torah, until Avraham, there is no mention of anyone getting old” (Bereishis Rabbah 65:9).

Avraham Avinu’s outlook should serve as a wise counterbalance to modern society’s adulation and adoration of youth. This approach makes aging something to dread, rather than something deserving of respect. Instead, Avraham Avinu referred to signs of advanced age as a well-earned “crown.”

The Bankrupt Borrower

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

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

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

Responsibilities of a Borrower

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

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

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

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

Systematic Collection

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

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

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

Who Collects First?

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

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

Why did the halachah change?

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

Bad Talmudic Debts

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

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

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

Dina Demalchusa Dina

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

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

Din Melech

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

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

Democratic Taxes

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

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

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

Traffic and Safety Regulations

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

No Government Influence

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

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

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

Government Influence

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

What about Bankruptcy?

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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