How Much May I Charge?

Question #1: Overcharged esrog

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

Question #2: Just a little bit

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

Question #3: Damaged coin

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

Question #4: Expert error

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

Answer:

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

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

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

Three types of onaah

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

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

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

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

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

(1) Fraud

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

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

Shidduchin

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

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

Insider trading

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

(2) Overpricing

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

Over a sixth

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

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

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

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

One sixth

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

Less than a sixth

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

Is it permitted?

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

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

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

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

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

Cash fast

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

All items?

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

Wartime

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

Overcharged esrog

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

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

Expert error

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

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

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

Mistaken overcharging

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

Real estate

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

Title search

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

Legal tender

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

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

Counterfeit money

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

Calculated profit

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

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

(3) No recourse

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

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

Was the seller wrong?

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

Conclusion

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

 

 

Some Applications of the Laws of Loshon Hora

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

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

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

What follows is an approximate rendition of the teshuvah.

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

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

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

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

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

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

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

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

The second question:

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

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

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

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

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

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

Here is the edited responsum that I sent him:

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

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

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

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

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

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

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

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

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

 

 

Purim Mishaps, Part II

Question #1: Purim Damage

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

Question #2: Hurt at a Wedding

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

Question #3: Purim Dress

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

Introduction:

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

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

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

Limitations

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

Physical injury

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

Why is he exempt?

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

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

  1. Implied mechilah

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

  1. Hefker beis din hefker

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

  1. Mitzvos are different

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

Not mutually exclusive

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

  1. Implied mechilah

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

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

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

Minor damage

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

  1. Hefker beis din hefker

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

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

  1. Mitzvos are different

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

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

Hurt at a wedding

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

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

Purim Dress

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

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

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

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

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

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

Conclusion

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

 

 

Purim Mishaps

In honor of Parshas Zochor, we will be discussing:

Purim Mishaps

Question #1: Stole a Brocha?

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

Question #2: Purim Damage

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

Question #3: Hurt at a Wedding

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

Introduction

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

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

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

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

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

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

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

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

Wedding jousting

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

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

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

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

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

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

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

Just muling around

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

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

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

Rowdy Ashkenazim

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

Limitations

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

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

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

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

Physical injury

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

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

Stole a Brocha

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

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

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

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

Please click here for Part II of this article. .

 

The Mitzvah Snatcher

CHAPTER 1

A QUICK DAVENING

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

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

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

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

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

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

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

Invoice:

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

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

Total                                                                            210 gold dinar coins.

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

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

Yours sincerely, I. Friedman

CHAPTER 2

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

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

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

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

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

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

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

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

“Maybe discuss the issue with the Rav.”

CHAPTER 3

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“Why?”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“What does the Rav paskin in this situation?”

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

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

 

The Spurned Shadchan

In honor of the 15th of Av, I am presenting:

The Spurned Shadchan

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The phone rings. Mrs. Weinberg,* a Lakewood* shadchan who often calls to ask shaylos, is on the line.

“I suggested that a local girl meet a bachur who is currently learning in Eretz Yisroel,” Mrs. Weinberg began. “Both families did their research and agreed that it sounded worth pursuing, but they decided to wait until the summer when the bachur would be visiting his family here.”

“When the summer arrived,” Mrs. Weinberg continued, “I called the families back to arrange for the young people to meet. However, they told me that someone else suggested the shidduch, and that they are following up through the other shadchan. Are they permitted to cut me out of the arrangements? After all, it was my idea first!”

Does Mrs. Weinberg have a claim? If she does, for how much money and against whom?

SHADCHANUS GELT

Before we discuss these issues, we need to establish whether paying a shadchan is indeed a halachic requirement.

I often find that people feel that one is not required to pay a shadchan. However, this is a misconception, since the Rama (Choshen Mishpat 264:7) requires paying a shadchan a fee, usually called by its Yiddish name, shadchanus gelt.  Just as you expect to pay your real estate broker, so, too, you should assume you will pay the shadchan. (We should be aware that, according to the Rama, a shadchan’s claim for services rendered has a stronger foundation than a doctor’s fee for an office visit, see Shulchan Aruch, Yoreh Deah 336:2; but that is a topic for a different article.)

Furthermore, there is nothing wrong with a shadchan requesting payment for services rendered, just as an attorney or accountant has every right to demand payment for services.

BROKERAGE FEES

Although it sometimes sounds strange, shadchanus fees are halachically categorized as brokerage fees. Just as one pays a real estate agent for arranging a transaction, so, too, one pays a shadchan for making the arrangements necessary for the engagement and marriage to transpire. Therefore, we must first explain the halachic sources for brokerage fees.

The Gemara (Bava Metzia 63b) mentions the responsibility to pay a broker’s fee to the person who arranges the sale of property or merchandise (Shulchan Aruch Choshen Mishpat 185:1; Rama 87:39). This is a standard business practice, similar to paying a commission to a stockbroker, real estate agent, or personnel recruiter (sometimes called a “headhunter”).

BUT WHAT IF I DIDN’T ASK HIM?

People easily understand that if you approach a broker or agent, you thereby obligate yourself to pay him for his services. However, some people assume that if you did not solicit the service, you are not obligated to pay. Does this distinction have any basis?

According to halacha, you are required to pay for any unsolicited benefit that you would usually pay for. Providing unsolicited benefit is called yored lesoch sdei chaveiro shelo birshus, entering someone else’s field without authorization, and the provider of the benefit is referred to simply as the yored (Bava Metzia 101a).

HOW MUCH DO YOU OWE THE YORED?

You are required to pay the yored as much as you have benefited. If he performed work for you that would normally require you to hire someone, you must pay him the market rate for hiring someone for this work (Bava Metzia 76a; Sma, Choshen Mishpat 375:1).

WHY MUST ONE PAY THE SHADCHAN?

When a single person or the parent of a single person asks someone if they know of any marriageable prospects, they are asking them to perform a valuable service on their behalf. This service has a market value, just as any other brokerage or recruiting fee has a market value (Rama, Choshen Mishpat 264:7).

WHAT IF YOU DID NOT ASK THE SHADCHAN?

Although there are halachic differences whether you approach the shadchan or the shadchan offers his/her service, in either case you are required to pay the shadchan. The basis for this requirement is as follows:

Even if his service is unsolicited, the shadchan is considered a yored, since you received benefit from him for a service for which you would normally pay (Gra, Choshen Mishpat 87:117). As explained above, you must pay him whatever you would have otherwise paid for that service (Bava Metzia 76a, 101a).

AM I REQUIRED TO PAY SHADCHANUS TO A FAMILY MEMBER OR CLOSE FRIEND?

This shaylah was discussed hundreds of years ago. A professional shadchan contacted Mr. Reuven suggesting a gentleman he thought appropriate for Mr. Reuven’s widowed sister-in-law. Mr. Reuven was involved in researching the shidduch and in arranging the couple’s meeting. When the couple announced their engagement, Mr. Reuven informed the professional shadchan that he was expecting half the shadchanus gelt, claiming that he was the shadchan who convinced the woman to consider this shidduch. The professional shadchan contended that he was the only shadchan, and that Mr. Reuven was an interested party and not a shadchan. Mr. Reuven countered that the professional had never made direct contact with his sister-in-law but relied exclusively on him to encourage the shidduch. The matter was referred to Rav Yair Chayim Bachrach, known as the Chavos Yair (after one of the seforim he authored). The rav ruled that Mr. Reuven was indeed a shadchan, since he influenced his sister-in-law to pursue the shidduch. He was therefore entitled to half the shadchanus fee, even though he was related to one of the principals (Shu’t Chut HaShani #3, quoted in Pischei Teshuvah, Even HaEzer 50:16).

WHO MUST PAY THE SHADCHANUS FEE, THE PARENTS OR THE COUPLE?

Usually, the parents of an engaged party pay the shadchanus gelt. Are they required to pay this fee, or is it really the responsibility of the young couple that the parents assume? As we will see, there are halachic ramifications to this question.

The poskim debate this question, making razor-thin distinctions that have major ramifications. Some contend that the responsibility falls upon the young couple, since they are the ones who benefit, even though the prevalent custom is that the parents pay (Shu’t Avnei Nezer, Choshen Mishpat #36). Others contend that since the parents usually pay, the shadchan expects payment only from them, and, therefore, he has no claim against the young couple (Halichos Yisroel #3, quoting Eirech Shai, Choshen Mishpat Chapter 185).

There is a major dispute between these approaches. The first opinion holds that if the shadchan is unable to collect from the parents, he may collect from the couple. According to the second opinion, his only claim is against the parents, and if he cannot collect from the parents, he cannot claim his fee from the young couple.

WHO WENT TO WHOM?

Since we have learned that one must pay the shadchan whether or not one solicited him initially, does it make any difference whether I asked the shadchan or the shadchan approached me first?

There are several differences in halacha that pertain to whether you solicited the shadchan initially or vice versa, including when you are required to pay the shadchan and whether you violate the mitzvah of bal talin if you fail to pay the shadchan on time.

If you approached or telephoned the shadchan initially, then you have hired him or her to perform a job — in this case, to find an appropriate shidduch. If he/she succeeds in his/her mission, then you are required to pay when the job is completed, and you must pay the shadchan as soon as the couple becomes engaged (Shu’t Halichos Yisroel #1-2). Furthermore, if you do not pay him/her on time and the shadchan demands payment, you will violate a Torah prohibition called bal talin, not paying a worker on time, a mitzvah we will explain shortly.

However, if you did not hire the shadchan, then you do not violate bal talin if you do not pay him/her on time, since the shadchan is not your employee.

Another difference in halacha affected by whether the shadchan was solicited or not is whether you must pay him or her at the time the couple becomes engaged or at the wedding. If the shadchan solicited you, then the time you are required to pay the shadchan depends on minhag –– accepted local custom (Rama, Choshen Mishpat 185:10). If the local custom is that people do not pay the shadchan until the wedding, then the shadchanus gelt is considered a marriage expense to be paid then, not an engagement expense. However, if you solicited the shadchan then you are required to pay the shadchan when his/her job is completed, which is when the couple becomes engaged (Shu’t Halichos Yisroel #4).

BAL TALIN – PAYING WORKERS ON TIME

As explained above, if one hired the shadchan, one must pay him/her on time, because of the mitzvah of bal talin.

WHAT IS ON TIME?

There are two deadlines, sunset and daybreak, and one is obligated to pay one’s worker before the first deadline after the job is completed. Therefore, if the worker finished his job before the end of the day, I must pay him by sunset. If he completed the work at night, I must pay him before daybreak (Bava Metzia 111a). (As mentioned above, one violates this prohibition only if the worker demanded payment and the owner refused to pay and there was no understanding or prearrangement of late payment.) According to this approach, if you went to a shadchan who, Baruch Hashem, arranged a successful shidduch, you should make sure to pay him or her immediately after the couple becomes engaged, before the next deadline arrives (Shu’t Halichos Yisroel #11). Others contend that one need not pay the shadchan until the wedding, unless the custom is otherwise (Rav Elyashiv, introduction to Shu’t Halichos Yisroel).

Still other poskim contend that since the responsibility of paying the shadchan really lies with the marrying couple, there is no violation of bal talin if the shadchan is assuming that the parents are paying his fee, since they are technically not required to pay shadchanus gelt.

HOW MUCH MUST I PAY THE SHADCHAN?

One must pay the shadchan the accepted fee in your community for this service (Pischei Teshuvah, Even HaEzer Chapter 50:16).

DIVIDING THE FEE

What happens if two different shadchanim were involved at different stages of encouraging the shidduch? Are they both entitled to be paid? How does one divide the fee? As we can imagine, this is not a recent shaylah.

An early posek, the Shev Yaakov (Choshen Mishpat #13), discusses the following case: Levi recommended that Reuven’s son meet Shimon’s daughter. After the engagement of the young couple, Gad claimed that he had originally suggested the shidduch to the parties and thus he was entitled to part of the shadchanus.

The Shev Yaakov researched the claims. As it turned out, Gad had, indeed, originally suggested the shidduch to both parties, but Shimon and his family had no interest in pursuing it. Levi, however, was a more persistent shadchan and convinced Shimon to consider Reuven’s son for his daughter.

The Shev Yaakov ruled that Gad was not entitled to any part of the shadchanus fee. He contends that a shadchan is entitled to a fee only when he was involved in the part of the discussion that reached fruition. However, in this case, Gad’s proposal did not accomplish anything, and, therefore, he is not considered a shadchan.

By a similar reasoning, a real estate agent who showed prospective clients a house, but was unable to interest them in it, and then a different agent showed them the same house and succeeded in convincing them to purchase it, the second agent is entitled to the commission, according to halacha. (In these instances, if accepted business practice is different it might affect the halacha, which is a topic for a different time.)

Thus, it seems that Mrs. Weinberg is not entitled to any shadchanus fee in our situation, since she was not part of the actual introduction that took place.

Notwithstanding that the Shev Yaakov ruled that Gad was not entitled to a share of the fee, there are cases in which the shidduch involves several parties and each is entitled to a part of the fee. If Sarah suggested a shidduch, but then felt that Rivkah would be a better go-between, and eventually it was necessary to get Leah involved and she was instrumental in the couple subsequently becoming engaged, all three ladies are considered partial shadchanim, according to many poskim. The accepted practice in this case is to divide the accepted shadchanus fee and to award 1/3 to each of the ladies. Other poskim contend that only the person who suggested the shidduch and the one who finalized it are considered shadchanim and they split the fee – but that a go-between who neither suggested a shidduch nor finalized it is not viewed as a shadchan (Shu’t Avnei Nezer, Choshen Mishpat #36).

SOME INTERESTING SHADCHANUS STORIES

A shadchan unsuccessfully attempted to arrange a shidduch between a daughter of the wealthy Weiss family and the son of the wealthy Schwartz family. Although the two families did meet and enjoyed one another, the shidduch did not materialize, and the Weiss girl subsequently married someone else. Later, other shadchanim suggested a match between a younger Weiss daughter and the Schwartz boy, and the couple became engaged. The original shadchan now claimed that he is entitled to a percentage of the shadchanus gelt, claiming that his involvement in the previous unsuccessful shidduch was instrumental in forging the close relationship between the two families that caused the latter shidduch to happen. Does the original shadchan have a claim?

The parties referred this shaylah to the Avnei Nezer (Choshen Mishpat #36). In a very complicated ruling he contends that the original shadchan might be entitled to a very small percentage of the shadchanus gelt for his role. He suggests a compromise on this basis, but rules that one could not be certain that he is entitled to any part of the fee.

IF A SHADCHAN ASKS FOR A HIGHER THAN TYPICAL FEE, AM I REQUIRED TO PAY IT?

If the shadchan did not provide any unusual shadchanus service, and the fee for a shadchan in your area is fairly standard, then the shadchan is not entitled to the extra fee. However, if there is no standard shadchanus fee in your area, or the shadchan performed a special service, then one must pay the shadchan’s higher fee (see Rama, Choshen Mishpat  335:1 and 264:7; Shach 264:15). Shadchanus is like any other profession, where one may not charge significantly above the going rate. However, when there is no fixed accepted amount, then the shadchan is not overcharging, since there is no market amount. Similarly, if the shadchan extends him/herself more than is expected, he may command a higher fee, since one is paying for the extra service (see Rama 335:1).

According to the Midrash, Moshe Rabbeinu was the shadchan between Klal Yisroel and Hashem at the giving of the Torah. Furthermore, Hashem, Himself, is indeed the ultimate Shadchan of every marriage. Thus, we should respect the wonderful role of the shadchanim in our midst, who are involved in a mitzvah that emulates both Hashem and Moshe.

* All names and places have been changed to protect privacy.

 

Raiding the Pushka and Related Questions

In honor of Shabbos Shekalim, I present:

Raiding the Pushka and Related Questions

clip_image002Question #1: TREMENDOUSLY APPEALING!

Yehudah presents the following dilemma: “I often feel pressured to pledge to the tzedakah appeals in shul; however, I am afraid that I will forget to pay afterwards. Is there a simple way to avoid creating a problem?”

Question #2: BORROWERS ANONYMOUS

Susan asks: “I often borrow small change from the pushkas that I keep on my window sill, but I am meticulous to return what I borrowed. Am I, indeed, permitted to borrow from the pushka?”

Question #3: DIVERTING ACTIVITIES

Tamar calls: I have a pushka in the house from an organization with which I have no contact. Instead, I would like to donate the money to my son’s yeshiva, to demonstrate my hakaras hatov.

Answer:

In order to answer these questions, I first need to explain how a few general concepts affect the laws of tzedakah:

  1. NEDER – A VOW

The Torah requires us to fulfill our vows (Bamidbar 30:3), and the consequences for neglecting this obligation are very serious (see Kesubos 72a). To avoid violating this prohibition, it is better to simply fulfill the mitzvah involved without reciting a vow to commit oneself (Nedarim 9a). For this reason, concerned people say “bli neder” whenever stating something that may imply a commitment to perform a good deed. The words bli neder prevent the commitment from becoming a vow, although one is still obligated to fulfill what one has promised to keep (Shu’t Shevet HaLevi 10:156:1; see also Shla’h, Torah SheBe’kesav, Parshas Matos, Derech Chayim). (In this article, I am not going to distinguish between the technical differences that exist between a neder, a vow, and a shavua, an oath; but I will refer always to neder.)

TZEDAKAH PLEDGES

Pledging money to tzedakah is a vow that one must fulfill. To quote the Torah:

Motza sifasecha tishmor ve’asisa ka’asher nadarta LaHashem Elokecha nedava asher dibarta bificha. You must be careful and fulfill that which exits your mouth, according to the vow that one recited to Hashem your G-d – anything that you spoke with your mouth (Devarim 23:24).

The Gemara rules explicitly that tzedakah is included in the requirements of this verse (Rosh HaShanah 6a). Therefore, one is required min haTorah to redeem a pledge that one made to tzedakah. Because of this law, it is strongly advisable to make charitable commitments bli neder so that the pledge does not assume the severity of a vow (Shulchan Aruch Yoreh Deah 203:4 and 257:4).

  1. BAL TE’ACHEIR Do not delay paying

This mitzvah prohibits delaying the redemption of a pledge, such as a commitment to offer a korban in the Beis HaMikdash. Reciting a charitable pledge requires one to fulfill it as soon as possible; failure to do so violates the prohibition of bal te’acheir (Devarim 23:22; Rosh HaShanah 6a). The Gemara notes that the requirements of bal te’acheir for a tzedakah pledge are even more exacting than they are concerning other mitzvos, such as korbanos. One who (at the time of the Beis HaMikdash) pledges a korban may wait until the Festivals (Pesach, Shavuos, and Sukkos) to offer them, since he will then be traveling to Yerushalayim, anyway. (Technically, he is required because of a positive mitzvah to offer the korban the first Yom Tov, but does not violate the lo saaseh until all three Yomim Tovim pass.) However, since a pledge to tzedakah can easily be fulfilled as soon as one locates a poor person, one must disburse the funds quickly.

The mitzvah of bal te’acheir provides another reason why one’s pledges to tzedakah should be made bli neder. If someone pledged tzedakah without specifying bli neder, he/she is obligated to redeem the pledge immediately. However, if one specified that the obligation is bli neder, failing to redeem it immediately does not violate bal te’acheir.

We can now address Yehudah’s concern about responding to tzedakah appeals. His question was that he felt pressured to pledge donations and was concerned that he might forget to pay them. Ideally, he should donate without pledging, or alternatively, he can say that he is pledging with the understanding that he is not making any commitment whatsoever. (Essentially, this is disallowing his pledge.) A less preferable choice is to pledge bli neder, which accomplishes that, should he forget to redeem his pledge, he will not have violated either the prohibition of vows or of bal te’acheir.

THE APPEAL WAS SUCCESSFUL, BUT THE INSTITUTION DIED!

By the way, it appears that although the organizations making appeals in Yehudah’s shul are doing a good job, they could use logistic help in recording and collecting the pledges to their cause. Any reader interested in volunteering to help them out?

BORROWING FROM TZEDAKAH FUNDS

At this point, we will address Susan’s concerns about borrowing from the pushka. Her first question was: May one borrow tzedakah’s funds for one’s personal use? The following passage of Gemara discusses this issue:

Rabbah bar Avahu stated, “Someone who declares: ‘This sela coin shall go to tzedakah,’ may use it for his own purposes, and then later pay tzedakah a different coin” (Arachin 6a, as explained by Rashi).

Rabbah bar Avahu’s is teaching that although pledging a coin to tzedakah creates a charitable vow that one must redeem, one may still borrow that coin and replace it. The reason this is true is that tzedakah does not create sanctity that forbids its use (Rambam, Hilchos Matanos Aniyim 8:5). In essence, declaring “this coin shall go to tzedakah” is equivalent to saying, “I hereby commit myself to donate to tzedakah an amount of money equal to the value of this coin.” The coin remains the donor’s, and he may borrow it and later replace it (see Shulchan Aruch Yoreh Deah 259:1).

The Gemara subsequently teaches that one may borrow the pledged coin only if it was not yet given to the gabbai, the tzedakah treasurer. Once the gabbai receives the money it is tzedakah’s property, and one may not borrow it. Under normal circumstances, a treasurer is not authorized to lend or exchange tzedakah funds (Bava Basra 8a; Rambam, Hilchos Matanos Aniyim 8:4). One exception is when the lending or exchanging benefits the recipient of the funds (Arachin 6b; see Pischei Teshuvah, Yoreh Deah 259:4 for another exception).

LIMITED LIABILITY

By the way, the sanction to borrow pledged money is also a liability, since it sometimes makes the person responsible to replace the money if it is stolen (see Choshen Mishpat 301:6). On the other hand, in a case when one may not use tzedakah money, he is not liable, unless he is negligent, such as forgetting where he put it.

WHO OWNS THE MONEY IN THE PUSHKA?

May Susan borrow from the pushka? According to what we have just learned, this depends on whether the money in the pushka already belongs to the organization or is still Susan’s property. Many authorities debated this question extensively about 150 years ago. The shaylah that spawned this literature is interesting.

HISTORICAL BACKGROUND

For the last few hundred years, many Jewish Diaspora households owned a pushka dedicated to Rabbi Meir Baal HaNes, a fund whose purpose was to succor the indigent Jews living in Eretz Yisrael. In a responsum dated Marcheshvan 18, 5626 (1865), Rav Mordechai Eitinga, then rav of Lvov (currently located in western Ukraine), was asked about someone who had accumulated a large sum of money in his Rabbi Meir Baal HaNes pushka and now felt that the local poor had a much greater need for these funds. Could he divert the money to local needs, instead of sending it to Eretz Yisrael? Rav Eitinga discusses two issues:

(1) May money pledged to one charitable cause be diverted to a different one?

(2) Do the poor of Eretz Yisrael already own the money in the pushka?

If the answer to the first question is “yes,” and to the second question is “no,” then the money may be diverted to the local indigent. Otherwise, it must be sent to Eretz Yisrael, because either the terms of the pledge must be absolutely fulfilled, or one is “stealing” money that already belongs to the poor of Eretz Yisroel (Shu’t Maamar Mordechai #15).

Let us follow his analysis.

DIVERTING OR A DIVERSION

Whether one may divert tzedakah money from one individual or organization to another is, indeed, a dispute among early poskim. Why should one be permitted to divert the funds? Explaining this approach requires that we note a new factor that the Gemara did not discuss. In Rabbah bar Avahu’s case, the donor simply declared, “This coin goes to tzedakah,” without specifying a specific individual or organization. However, what happens if someone holding a wad of hundred dollar bills declares, “I dedicate this money to the Asher Richman Hebrew Academy.” Must he contribute this amount of money to the Richman Academy, or may he afterwards decide to send them to the Pauper Yeshiva? Does halachah require him to honor a pledge to a specific organization or individual, or is he simply required to donate this amount of money to any tzedakah? If indeed the pledge is simply a generic requirement to donate this amount to tzedakah, then it should follow that one may actually contribute the funds to a charity different from what he originally intended.

13TH CENTURY CHUTZPAH

Early authorities discuss this question. A major posek of 13th century Germany reports a very unusual din Torah. A pauper claimed that a wealthy individual promised him a specific amount of money and had not paid it, whereas the rich man denied ever pledging any money. The poor man contended that the pledge obligated the donor to pay him and that the case is therefore no different from any plaintiff claiming money from a defendant who denies that he owes any. The halachah, in such instances, is that the defendant is required to swear an oath (shevuas heses) denying the claim. Similarly, the Mordechai (Bava Kamma #172) ruled that the affluent man is required to swear that he never pledged any money to the pauper! He does not report whether this pauper was subsequently offered any positions as a publicity director for any major Torah institution.

The poskim prove from this Mordechai that when one pledges money to an individual tzedakah, the particular tzedakah can demand payment. Otherwise, what claim does the pauper have on the rich man? Even assuming that the rich man pledged him money, this is merely an obligation to give tzedakah, which the affluent man may donate anywhere. If the pauper indeed has a claim, it must follow that a pledge automatically includes a debt to the specific individual. Following this line of reasoning, money pledged to one tzedakah cannot be subsequently rerouted to a different one, however legitimate the need (Shach, Choshen Mishpat 87:51; Machanei Efrayim, Hilchos Tzedakah #7).

LOCAL OR ISRAEL?

Although not all authorities accept this position of the Mordechai (cf. Shu’t Maharit #22 and #39), many later authorities do follow his ruling (Ketzos HaChoshen, 87:21). Based on this analysis, most later authorities contend that money placed in a Rabbi Meir Baal HaNes pushka may not be given instead to the local poor (Shu’t Maharya HaLevi #49; Shu’t Beis Yitzchak, Orach Chayim #21).

This allows us to answer our third question asked above: “I have a pushka in the house from an organization with which I have no contact. I would like to donate the money instead to my son’s yeshiva, to demonstrate my hakaras hatov.” The answer is that although supporting the Torah institutions that educate our children is vital, since this money is already designated for one organization, one may not transfer it to another.

PUSHKA BORROWERS ANONYMOUS

All of this does not answer Susan’s question whether she may borrow money from the pushka. Even if money pledged to one institution cannot be transferred to another, until the money becomes the property of the institution, one may borrow it, as we learned before. Thus, we need to determine whether money in the pushka is already the property of the institution or not.

Now we reach an interesting question: What is the status of money in the pushka? Do I still have some control over it, and may I, therefore, borrow it, subject to the above conditions? Or is it now the property of the tzedakah and I may not?

This halachah depends on the following: Who owns the pushka? If I own the pushka, then placing money in the pushka requires me to donate it to tzedakah, but it is not yet their property and I may borrow it. As I mentioned above, this situation may create liability for the funds, should they be stolen.

On the other hand, if the organization assumes that money placed in the pushka belongs to them, then I may not borrow any of that money. The reason for this is that since the pushka is their vessel, money placed inside is equivalent to being given to the gabbai, the tzedakah treasurer (based on Shulchan Aruch Choshen Mishpat 200:3). Most authorities follow this latter interpretation of the halachah.

HABITUAL BORROWERS

Some people are in the habit of borrowing money from the pushkas on a regular basis. Now, after reading my words, they may realize that this practice is sometimes forbidden. Nevertheless, there is a method whereby a person may put money into any pushka and yet still be able to borrow it afterwards

; he should make a condition in advance that when he puts money into the pushka, he is not donating it to the institution, but simply pledging it to them. This way, the money is not yet the property of the institution, and one may borrow it. Although this solution will not help for the money already in the pushka, it can be used to avoid this problem in the future.

Some contemporary authorities suggest that someone who usually borrows from the pushka might be considered as if he made this condition from the beginning, i.e., that he is not giving the money yet to the tzedakah cause, but only pledging it (Derech Emunah, Matanos Aniyim 7:note 121).

To answer Susan’s question, I would suggest that she make a condition, henceforth, that when she places money in the pushka, she is not donating it at this time. In so doing, she reserves the right to borrow from the pushka, although she also creates a responsibility for herself, should the money be stolen. She may decide that she is better off curbing her habit of borrowing from the pushka and make an appointment to join Borrowers Anonymous.

Making change from the pushka benefits the tzedakah which would rather not distribute, transport or deposit its money as small change, but rather in the form of bills (Tzedakah Umishpat Chapter 8, footnote 25, page 148).

Unfortunately, most people do not realize the complex shaylos that arise from shul appeals and pushkas – hopefully this article helps repair this breach. May we all always be showered with berachos for contributing generously to tzedakah!

 

The Lost Gift: Parashas Mishpatim and Shomrim

In this parshas Mishpatim, the Torah discuss the responsibility that a shomer assumes for someone else’s property. Does a shomer always assume this much responsibility? Stay tuned and find out!

gift boxWhile learning in my study one day, I was greeted by a knock at the door. I opened the door to find two women, Rivkah and Leah, standing in the doorway.

“Rabbi,” Rivka began somewhat apprehensively, “We have a shaylah that we need to ask you. I was supposed to bring a present to Lakewood for Leah’s daughter, but, somehow, it got along the way. I feel responsible. Leah feels that I am not responsible and I should not feel any obligation to compensate her daughter, but I feel that I should.”

“If anyone is responsible it is I,” replied Leah. “I keep insisting that Rivka should not pay, and she keeps insisting that she should. We decided that we would refer this to the Rav to decide.”

The case turned out to be a very interesting halachic shaylah.

A family member bought a very expensive wedding gift for Leah’s recently married daughter, who now lives in Lakewood. Leah heard that Rivka’s husband was driving to Lakewood, so she called to ask if he could bring the gift with him. Rivka suggested that Leah drop by and put the gift in the trunk of the car, so that they wouldn’t misplace it.

Upon reaching Lakewood, Leah’s daughter arrives to pick up the package. Rivka’s husband checks the trunk of the car, but the gift is not there!! He calls Rivka, who in turn calls Leah, who says that she definitely placed the gift in the trunk. The gift seems to have inexplicably disappeared!

Who, if anyone, is responsible to replace the gift?

I asked for some time to think about the shaylah. In the interim, I needed to address some pertinent questions, which provides an opportunity to review the relevant halachos.

There are several halachic areas we need to clarify:

  1. To what extent are you responsible for replacing an item that you were watching without remuneration?
  2. If you permit someone to place an item in your house or car, does that mean that you are now responsible if the item is damaged, lost or stolen?
  3. If you agree to transport an item as a favor, is there an assumption of responsibility, and if so, to what extent?

WHAT IS A SHOMER CHINAM AND TO WHAT EXTENT IS HE RESPONSIBLE?

Someone who assumes responsibility to take care of an item, but receives no benefit for doing so, is called a shomer chinam. He is responsible if the item becomes damaged, stolen, or lost because of his negligence, but not if he took proper care of the item.

EXAMPLE: Binyomin entrusted money to a shomer for safekeeping. When he came to collect his money, the shomer replied that he does not remember where he put it. Rava ruled that not knowing where you put something is negligent and the shomer must pay (Bava Metzia 42a).

WHAT IF HE DID NOT EXPRESSLY ASSUME RESPONSIBILITY?

A shomer may specify that he assumes no responsibility for an item (Mishnah, Bava Metzia 94a). Furthermore, if he clearly did not assume responsibility, he is also not obligated to pay.

EXAMPLE: While fleeing from the Napoleonic wars, Naftali buried valuables in a pit in his backyard, and offered Asher to hide his valuables there, too. The two of them fled to a safer area, hoping to return one day to unearth their valuables. Fortunately, the war ended, and they were able to return. Naftali was eager to unearth the valuables and give Asher back his money, but Asher was busy taking care of other matters. Naftali sent Asher a message that he was unearthing the valuables, but Asher did not arrive immediately. By the time Asher arrived, his valuables had disappeared. Does Naftali bear responsibility?

Naftali and Asher addressed the question to Rav Yaakov of Lisa, the author of Nesivos Hamishpat (291:2). The rav ruled that Naftali is not obligated to pay any damages, since he never assumed any responsibility for Asher’s valuables but merely made his hiding place available.

Thus, we have established that if a shomer assumes responsibility, he will have to pay for damage caused by his negligence, but if he does not assume responsibility, he does not have to pay.

However, our case is somewhat different from the case of the Nesivos. In his case, Asher knows that Naftali will not be around to supervise his property. In our case, Leah had accepted the gift on behalf of her daughter and Rivka suggested that it be placed in her car. Does that make Rivka responsible to replace it if it is lost?

Or, as we phrased our second question above: If you permit someone to place an item in your house or car, does that mean that you are now responsible if the item gets damaged, lost or stolen?

The Gemara raises the following shaylah which affects our question:

Daniel asked Shlomo if he could leave his sheep and some equipment in Shlomo’s yard. Subsequently, Shlomo’s dog, Fido, bit Daniel’s sheep; the next day, someone stole the equipment. Assuming that Shlomo was negligent, must he pay for the damages?

The question is whether Shlomo ever assumed responsibility for Daniel’s property. If he permitted Daniel to place the sheep and the equipment in his yard, does that mean that he assumed responsibility for this property? The Mishnah (Bava Kamma 47a) quotes a dispute between Rebbe and the Chachomim as to whether we assume that Shlomo took responsibility.

HOW DO WE PASKIN?

There are three opinions:

  1. Some rule that Shlomo is responsible for the damage. They contend that when someone grants permission to place items on his property, he assumes responsibility to look out for the items.
  2. Others contend that Shlomo is not responsible for the stolen equipment, but he is responsible for Fido biting the sheep (Shach 291:9). Permitting someone to place items on his property doesn’t mean that he assumes responsibility. However, Shlomo is liable if his animal caused damage to property that he allowed onto his premises.
  3. Shlomo does not need to pay at all since he never accepted responsibility (Shulchan Aruch, Choshen Mishpat 291:3). (According to this opinion, even though Shlomo’s dog bit Daniel’s sheep, Shlomo is not responsible for damage done by his own animal on his own property.)

The Shulchan Aruch rules like the third opinion that Shlomo is not responsible, although other poskim disagree. Thus, we see that although someone permits you to put something in his house or car, you cannot assume that this means he is taking responsibility for it. Thus, placing the gift in Rivka’s car does not, necessarily, mean that either Rivka or her husband is responsible for the gift.

However, there is a difference between Leah’s gift and Daniel’s sheep, other than the fact that one of them bleats. I am going to use another din Torah to demonstrate the difference between the two.

While Levi was packing his donkey to travel to the next city, Yehuda asked if he could send his shoes along. Levi responded, “You can put them on top of the donkey.” Yehuda complied, and Levi rode off without tying the shoes adequately to the donkey. Subsequently, when the shoes were lost, Levi claimed that he never assumed any responsibility for Yehuda’s shoes.

Is Levi responsible to pay Yehuda for his shoes? After all, he never told Yehuda that he was assuming responsibility; he simply allowed Yehuda to place his shoes on the donkey.

The Rosh (quoted by Tur Choshen Mishpat Chapter 291) ruled that Levi is indeed responsible, even though he never told Yehuda that he was assuming responsibility.

Why are Yehuda’s shoes different from Daniel’s sheep, where we assumed that Shlomo took no responsibility? The difference is that when Levi transports the shoes with him, Yehuda will no longer be able to watch them. Under these circumstances, we assume that Levi accepted responsibility, unless he specifically stated at the time that he did not. However, when Daniel puts his sheep into Shlomo’s yard, there is no reason why Daniel cannot continue to be responsible to take care of his sheep. Thus, there is nothing in Shlomo’s action that implies that he is assuming responsibility.

Based on the above analysis, it would seem that Rivka is indeed responsible since she made Leah the offer of placing the gift in her car. This implies that Rivka assumed responsibility.

However, Rivka’s gift is different from Yehuda’s shoes for two reasons:

  1. Rivka’s gift was not put into a place that requires any type of supervision. The locked trunk of a car is a secure place to leave items. Thus, it is less certain that we can assume that Rivka accepted responsibility.
  2. More importantly, Rivka told Leah to put the gift in the car, but also told her that her husband, not she, was going to Lakewood. Thus, Rivka certainly was not assuming responsibility for bringing the gift to Lakewood. We also cannot say that her husband assumed responsibility, when he never agreed expressly to take the package. Thus, it would seem that neither Rivka nor her husband is responsible. However, if her husband agreed to take the package, he would be responsible if, indeed, he had been negligent. Since we do not know where the package went, we would probably assume that the package disappeared because of some negligence on his part.

DOES THIS MEAN THAT LEAH IS RESPONSIBLE TO PAY HER DAUGHTER FOR THE GIFT?

Indeed it might. When Leah accepted the gift on her daughter’s behalf, she assumed responsibility as a shomer chinam. We now have a new shaylah: Did she discharge this responsibility when she placed the gift in Rivka’s car for the trip to Lakewood?

The Gemara records an interesting parallel to this case.

At the time of the Gemara, houses were not particularly secure places to leave valuables. For this reason, the proper place to store money and non-perishable valuables was to bury them in the ground. A shomer chinam who received money but did not bury the money would be ruled negligent, if the money was subsequently stolen (Bava Metzia 42a).

The Gemara mentions a case when this rule was not applied:

Someone entrusted money to a shomer who gave it to his mother to put away. His mother assumed that it was her son’s own money, not money that he was safekeeping for someone else, and therefore placed it in his wallet rather than burying it. Subsequently, the money was stolen and all three of them ended up appearing before Rava to paskin the shaylah.

Rava analyzed the case as follows: The shomer is entitled to say that he has a right to give something entrusted to him to a different member of his family for safekeeping. Furthermore, there is no claim against him for not telling his mother that the money was not his, because she will take better care of it assuming that it was his. Therefore, the shomer did not act negligently. The mother also did not act negligently – based on the information she had, she acted responsibly. Thus, neither one of them is obligated to pay (Bava Metzia 42b).

The principles of this last Gemara can be applied to our case. Neither Leah, nor Rivka, nor Rivka’s husband acted negligently in our case. Leah gave the gift to someone in a responsible way to get it to Lakewood. We have already pointed out that neither Rivka nor her husband ever assumed responsibility for the gift. Furthermore, neither one of them acted irresponsibly. Thus, it seems to me that none of the parties involved is halachically obligated to make restitution.

There is actually a slight additional angle to this story. Leah is, technically, obligated in an oath (a shevua) to her own daughter to verify that she indeed placed the gift in the car. However, since it is unlikely that Leah’s daughter will demand an oath from her, she is not obligated to pay.

Needless to say, Leah will apologize to her daughter even if she has no technical responsibility, and will probably offer her daughter a replacement gift. Hopefully her daughter will accept the loss of a gift as a minor mishap, and put it out of her mind.

In general, we should be careful when we assume responsibility for items belonging to others, to take good care of them and not leave them around irresponsibly or near young children. We should pray to be successful messengers when entrusted with other people’s property.

 

The Bankrupt Borrower

This week’s parsha, Behar, includes details about being honest in our business dealings. Is declaring bankruptcy to absolve one of one’s debts, considered honest according to halachah?

The Bankrupt Borrower

Mr. Gomel Chessed shares with his rav, Rav Chacham, the following predicament: “I loaned someone money, and I did not hassle 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 back. He replied that he was forced into bankruptcy and thereby absolved 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 a bankruptcy court’s decision be honored. Gomel is eager to hear the full explanation, so his rav provides him with some background material to read until they make an appointment to discuss the matter at length.

Gomel truly enjoyed researching the topic, and discovered that he also wanted to know all 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 that 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 a debt when he can, and it is similarly forbidden to hide money so that a creditor cannot collect. This is true even if the creditor is very wealthy.

It is forbidden to borrow money that one does not think he will be able to repay. According to some authorities, money borrowed under the false pretense that the borrower intends to repay it 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 to forgive the debt or 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 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 rosho (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 that we divide the debtor’s limited financial resources among his creditors?

Gomel discovered that the halachos governing who collects first are highly complicated. He also discovered that, when there are insufficient financial resources to pay all of the person’s 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 shibud by which most debts are automatically secured with property that the debtor owned at the time he created the obligation. When this system was followed, 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 once owned and had subsequently sold. The system in place allowed that potential purchasers could 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 before purchasing property to ascertain that the property is without any liens and that the seller has clear ownership.) 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 shibud 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?

Since today no one applies the system of the Gemara, the creditor did not expect to be able to collect from any properties after the debtor sells them. As a result, the creditor did not acquire shibud on any of the debtor’s properties (Shu’t Igros Moshe, Choshen Mishpat 2:62).

Bad Talmudic Debts

When there is no shibud claim on any properties, then, under the Gemara’s system, the outstanding creditors collect, but not proportional to the amount that each is owed. According to most authorities, we still follow whose claim is earliest. Others rule that everyone is paid equally according to the availability of resources (Shulchan Aruch, Choshen Mishpat 104:13 and Sma). Either approach results in a major difference between the Gemara’s system and the modern approach. Under the modern approach, the court calculates what is the ratio of the available resources to the debt, and pays all creditors a percentage of the debt based on the result.

By now, Gomel has studied much of the Gemara and commentaries on the topic of debt collection, and he has a good idea how bad debt was collected in the time of the Gemara. After reviewing his studies with Rav Chacham, Gomel is ready to understand how and if bankruptcy fits into a halachic system. He soon discovers that he now needs to master a very 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 to be 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 will swallow another alive.” Anyone who has ever 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. 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 describes or if Shmuel was simply threatening 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 for those who contend that Shmuel was merely threatening the people and that the king does not have this extensive authority, the concept of dina demalchusa dina is still accepted; they simply do not consider the din melech of Shmuel to be the source of 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 there is a minority opinion that 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 only collect that which has been previously established (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 an arbitrary right to create new taxes or increase taxes 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 requires obeying 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 traffic laws, and regulations governing 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). All opinions agree that dina demalchusa dina applies to matters which breach the authority of the governing parties (Igros Moshe op. cit.). The exact extent to which this is applied practically will affect Gomel’s original question, whether dina demalchusa dina applies to bankruptcy law.

No Government Influence

What 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 it is no infringement on the government’s authority when people make their own arrangements as to how to manage these areas of their lives (Igros Moshe).

Government Influence

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

What about Bankruptcy?

As I wrote above, the Gemara and the Shulchan Aruch do not mention any concept of bankruptcy. Gomel began to research if anyone discusses whether or not halachah recognizes the laws of bankruptcy under the laws of dina demalchusa dina. Indeed, he discovered a dispute among great authorities of the late twentieth century 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 consistent 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 insuring 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 there be a consistent rule of law applied throughout the country regarding how bad debts are discharged.

In the case brought before Rav Moshe, a company had gone bankrupt, and the directors had paid one of its creditors for his outstanding debt 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 dina demalchusa dina. Rav Moshe ruled that if the company had already filed for bankruptcy when this money was paid, then the creditor is halachically required to return the money. This is because dina demalchusa dina establishes the regulations how one may pay once one has filed for bankruptcy.

We find responsa from two prominent European authorities, Rav Yitzchak Weiss (Shu’t Minchas Yitzchak 3:134), then the av beis din of Manchester (and later the Gaon 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 concerning the same situation:

Reuven advanced Shimon a personal loan, and Shimon subsequently declared bankruptcy. As required by law, Shimon had 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, which ultimately ruled that Shimon was required to pay only thirty cents per dollar owed to his creditors.

Subsequently, Reuven sued Shimon in beis din for the entire loan. Shimon contended that he is not required to pay Reuven any more than the thirty cents to the dollar that the bankruptcy court ruled that he was required to pay. Reuven, the creditor, claimed that he had never forgiven any part of the loan. He claimed that he did not protest the bankruptcy proceedings for several reasons, among them that he was unaware that a personal loan which was not meant for profit is included in bankruptcy proceedings.

The rav who was asked the shaylah referred it to these well-known poskim. They both contend that dina demalchusa dina does not apply to bankruptcy procedures. In their opinion, dina demalchusa dina never supplants an area of halachah where 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 is mocheil a loan or part of a loan, he cannot afterwards claim it. However, they contend that in the situation at hand, there is no evidence that Reuven was ever mocheil the balance of the loan.

It would seem from Rav Moshe Feinstein’s responsum that he would have ruled differently and contended 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 can claim protection from the balance of his loan because he has declared bankruptcy. According to the Chelkas Yaakov, the Minchas Yitzchak, and other authorities, the debtor has no basis for claiming bankruptcy protection. According to Rav Moshe Feinstein, one would have to check with an attorney whether the debtor’s bankruptcy protects him legally from Gomel’s loan even though Gomel was not informed of the bankruptcy proceedings. Assuming that the bankruptcy proceedings can, indeed, protect the debtor, it would seem that, according to Rav Moshe and some other authorities, the debtor has grounds to his argument.

Conclusion

Lending money is a valuable mitzvah. When someone fulfills the mitzvah of lending money to a fellow Jew, he is not providing a gift, but a loan that he has a right to expect will be repaid. 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 explained easily in 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 how he intends to return the funds.

The Saga of the Expired Ticket

PART I: The Saga of the Expired Ticket

Two yeshiva students, Beryl Bernstein and Aaron Adler*, make an appointment to discuss a financial matter with me. Thank G-d, there is no ill feeling between them, just a practical question regarding who is required to pay for a plane ticket. Here is the background to the story:

Beryl and Aaron were taking a brief trip to visit their families. Beryl purchased a round trip ticket, whereas Aaron had the return ticket from his previous trip and was planning to purchase a ticket back to Yeshiva from home. All went well on the trip there; however, shortly after their arrival, Beryl took ill and realized that he would be unable to return to yeshiva on the flight he had originally booked. The travel agent informed his parents that although it was impossible to transfer the ticket to a later flight, he could rewrite the ticket in someone else’s name with only a small transfer fee.

Beryl called Aaron, asking him if he had as yet purchased a ticket back, which indeed he had not. Aaron discussed the matter with his parents, who decided to help out the Bernsteins, since Aaron needed a new ticket anyway. Beryl’s parents instructed the agent to change the name on the ticket while leaving the billing on their credit card. The Bernsteins agreed that they will pay the change fee whereas the Adlers will compensate them for the price of the ticket.

All was fine until the morning of the flight. Aaron woke up sick; clearly he would not be flying today. The Adlers contacted the issuing travel agent to find out what he could do with the ticket. He responded that he could transfer the ticket yet again but needed the Bernsteins’ approval to change the billing on their credit card. The Adlers tried many times to contact the Bernsteins to arrange the change of ticket, but were unsuccessful at reaching them. Unfortunately, the ticket went unused and became worthless.

Later, both Aaron and Beryl purchased new tickets for the flight back to yeshiva. In the meantime, the Adlers have not yet paid the Bernsteins for the first ticket and have the following question: Must they pay for the ticket which they were unable to use, thus requiring them to pay for two tickets? In their opinion, all they were trying to do was to help out the Bernsteins from having the ticket go to waste, although unfortunately it did anyway. The Adlers contend that they had found a cheaper ticket and chose to help out the Bernsteins even though it was more expensive. They feel it unfair to expect them to compensate the Bernsteins for attempting to do a favor that backfired, particularly since they tried to reach the Bernsteins to make sure the ticket did not go to waste.

On their part, the Bernsteins contend that other people were interested in using Beryl’s ticket, and that they sold it to the Adlers for the Adlers’ benefit. Furthermore, they note that they were not home the day the Adlers called because they were away at a simcha and that they did have their cell phones with them.

Are the Adlers obligated to compensate the Bernsteins for the unused ticket or not?

PART II: Who Appears Before the “Judge”?

Aaron and Beryl came to me with the request that I resolve an issue germane to the payment of an airline ticket. Before hearing details of the case, I asked them who were the parties to the litigation. Were Aaron and Beryl assuming responsibility to pay? Both fine, young gentlemen respond that the parents are assuming responsibility. The bachurim noted that there is no ill will between the families, simply a true desire to do what is halachically correct. Both sets of parents felt that a rav near their sons’ yeshiva would be the easiest way to resolve the issue in an amicable and halachically proper fashion.

I pointed out to Aaron and Beryl that while asking a rav to clarify the halacha is indeed an excellent way to resolve the matter, at the same time, the situation was in one way somewhat unusual. Ordinarily, when two parties submit litigation to a rav or a Beis Din, each party makes a kabbalas kinyan (to be explained shortly) obligating them to obey the decision of that particular rav or Beis Din. In the modern world, the two parties also typically sign an arbitration agreement that they are accepting this rav’s or Beis Din’s adjudication. Although halacha does not require signing an arbitration agreement, this is done nowadays in order to provide simple proof that both parties accepted the particular Beis Din’s authority and to strengthen the Beis Din’s power as an arbitration board under secular law. (In most locales and circumstances, a civil court will accept the decision of a Beis Din as a form of binding arbitration.)

WHAT IS A KABBALAS KINYAN?

A kabbalas kinyan means performing an act that obligates one to fulfill an agreement. For example, prior to the signing of a kesubah, the chosson makes a kabbalas kinyan, usually by lifting a pen or a handkerchief, thereby demonstrating that he has accepted the responsibility to support his wife. Similarly, when appointing a rav to sell one’s chometz, one performs a kabbalas kinyan to demonstrate the authorization of the rav as one’s agent.

In our instance, a kabbalas kinyan demonstrates that one accepts the authority of this particular rav or Beis Din to rule on the matter at hand.

HARSHA’AH – POWER OF ATTORNEY

Beryl asked me, “Can’t I represent my parents in this matter?”

I answered him, “Certainly. One can appoint someone to represent him in halachic litigation by creating a harsha’ah. For example, let us say that it is impractical for the suing party to appear before the Beis Din in the city where the defendant resides. He can sue by appointing someone on his behalf and authorizing this by executing a harsha’ah, the halachic equivalent of a power of attorney.”

I returned to the case at hand.

“Therefore, in our case, the two of you could represent your parents by having them execute harsha’os appointing you as their respective agents.”

Aaron piped up: “I don’t think anyone really wants to make a full din torah out of this. I think we simply want to know what is the right thing to do according to halacha.”

Technically, without execution of harsha’os, either side could later claim not to have accepted the decision of the rav or Beis Din involved, and could avoid having the litigation binding. Nevertheless, in our situation, both parties seemed honorable and simply wanted to know the halacha. Both sons said that their parents had requested that they jointly ask a shaylah and that they would follow the decision. Thus, although following the strict rules of litigation requires both a harsha’ah and a kabbalas kinyan from each side, I elected to handle the situation informally, calculating that this would generate the most shalom.

PART III: Are They Parties or Participants?

Why didn’t I have the two bachurim each make a kabbalas kinyan binding themselves to my ruling?

Such a kabbalas kinyan would have no value, since the person making the kabbalas kinyan binds himself to accept the authority of the specific rav or Beis Din. However, the sons here are not parties to the litigation and therefore their kinyan would not bind either themselves or their parents unless they had previously executed a harsha’ah.

PART IV: Opening Arguments

Let us review the points made by each of the parties: The Adlers claim that they were simply doing a favor for the Bernsteins. They were willing to absorb a small loss for the sake of the favor, but certainly had no intention of paying the Bernsteins for a ticket that they would never use. They also feel that since they could not reach the Bernsteins to change the ticket, the Bernsteins were partially responsible for the ticket becoming void.

The Bernsteins are claiming that the Adlers purchased the ticket from them and that what occurred subsequently is exclusively the Adlers’ predicament and responsibility. Furthermore, the Bernsteins contend that the Adlers did not really save them money because there were other people who would have purchased the ticket from them. And regarding their unavailability, they were at a simcha, which is certainly a reasonable reason to be away, and they were reachable by cell phone. It is not their fault that the Adlers did not ask them for cell phone numbers.

Do the Adlers owe the Bernsteins for the ticket that they did not use? After all, the Adlers point out that they were doing the Bernsteins a favor, and that they tried to contact the Bernsteins before the ticket became worthless. Having discussed the background to this “litigation,” we need to address the halachos pertinent to the case.

PART V: In the Judge’s “Chambers”

At this point, we can consider the arguments and counter-arguments of the two parties. The Adlers’ contention that the Bernsteins were unavailable does not affect the issues at stake. The Bernsteins are not obligated to be accessible at all hours of the day, and cannot be considered as having damaged the Adlers through their unavailability. Thus, whether the Bernsteins could have been reached by cell phone or not, whether they should have remembered to supply the Adlers with their cell phone number or not, and whether they were away to celebrate a simcha or not, are all not germane to the issue.

WHO OWNED THE TICKET?

Essentially, the Adlers are contending that they assumed no fiscal liability for the ticket unless they used it, and were simply attempting to help the Bernsteins. Does this perception reflect what happened?

Certainly, if the Adlers had told the Bernsteins that they were not assuming any responsibility for the ticket unless they actually used it, they would not be liable for it. However, they did not say this when they arranged for Aaron to obtain the ticket. Rather, they had agreed that the ticket be reissued in Aaron’s name without any conditions.

The issue we need to resolve is, “Who owned the ticket when it became invalid?” Here we have a somewhat complicated issue, since the ticket was reissued, yet it remained billed to the Bernsteins’ credit card.

Someone who purchased an item that was subsequently damaged cannot claim a refund from the seller unless the seller was guilty of deception (Bava Metzia 110a). Once the item has changed possession, any damage that occurs is the loss of its current owner and he cannot shift responsibility to the previous owner. This occurrence is called mazalo garam, his fortune caused this to happen (see, for example, Rashi to Bava Metzia 103a, s.v. azla lei). This means that each person has a mazel that will bring him certain benefits and losses during his lifetime, and one must learn to accept that this is Hashem’s will. Specifically, the Gemara refers to children, life and sustenance as three areas dependent on mazel (Moed Katan 28a). [One can daven to change one’s mazel, but that is not today’s topic (Meiri, Shabbos 156).] Thus, if the Adlers indeed owned the ticket, the resultant loss is theirs, and they should chalk it up to Hashem’s will. (Colloquially, we very accurately refer to this situation as being bashert.) Thus, what we need to determine is whether the Adlers had halachically taken possession of the ticket.

KINYAN

According to halacha, for property to change hands there must be not only the meeting of the minds of the buyer and the seller, but also the performance of an act, called a maaseh kinyan, that transfers the item into the possession of the buyer. Although both the buyer and the seller agreed to transact an item, it does not actually change possession until the maaseh kinyan transpires. Therefore, if the item is damaged after the two parties agreed to a deal, but before a maaseh kinyan transpired, the seller takes the loss since the item was still his when it became damaged. Determining the exact moment that the act of kinyan takes place and that therefore the item changed possession is therefore highly significant.

[It is important to note that, although a deal may not have been finalized without a kinyan, it is usually forbidden to back out once the two parties have made an agreement. This is based on the verse in Tzefaniah (3:13) which states that a Jew always fulfills his word (see also Pesachim 91a; Bava Metzia 106b). Someone who has a question whether he is bound to an agreement must ask a shaylah to find out whether he may abandon the deal.]

What act creates the kinyan? There is a vast halachic literature devoted to defining what exactly constitutes a maaseh kinyan and under which circumstances these kinyanim work. For example, the methods of transacting real estate are quite different from how one acquires chattel or food.

How does an airline ticket change possession? Obviously, there is no Mishnah or Gemara discussion teaching how one acquires an airline ticket.

In reality, we should first analyze, what exactly does one purchase when one buys an airline ticket? The ticket itself is only a piece of paper, and is even less if it is an e-ticket and has no intrinsic value.

What one is purchasing is the right to a seat on a flight, and the ticket is basically a receipt verifying the acquisition. If our analysis is correct, then the purchase of a non-refundable ticket is essentially buying a right to a particular flight. So we now have a halachic question: How does one acquire such rights and how does one transfer those rights to someone else?

SUTIMTA

One way of acquiring property is called sutimta, which means using a method of acquisition that is commonly used in the marketplace. Since society accepts this as a means of acquiring property, halacha recognizes it as a kinyan. For example, in the diamond trade, people consummate a deal by a handshake accompanied by the good wishes of “mazel ubracha.” Since this is the accepted method of transacting property, the kinyan is binding and halacha recognizes the deal as complete.

Based on the above, we can reach the following conclusion: When the Bernsteins instructed their travel agent to transfer the ticket to Aaron’s name, they were asking him to change the ownership of the right to the seat on that flight from Beryl to Aaron. Once the agent followed up on their instruction and reissued the ticket, the right to that seat became Aaron’s, and the Bernsteins are exempt from any fiscal responsibility. Although Aaron was unfortunately unable to utilize this right and it became void, there is no basis to making the Bernsteins pay for the ticket once it was transferred.

Therefore, the Adlers should accept that Aaron’s illness and the resultant loss of the ticket is Hashem’s will which we do not challenge. Since the loss of this money is attributed to mazel, had the ticket situation developed differently they would have suffered this loss in a different, perhaps more painful way, and they should not be upset at the Bernsteins for the financial loss.

Knowing how some people react to these situations, there is a good chance that the Adlers may be upset at the Bernsteins for what happened, even though this anger is unjustified. To avoid this result, I suggested that the Bernsteins offer some compensation to the Adlers for the ticket. It is very praiseworthy to spend some money and avoid bad feelings even if such expenditure is not required according to the letter of the law.

A Jew must realize that Hashem’s Torah and His awareness and supervision of our fate is all encompassing. Making this realization an integral part of our lives is the true benchmark of how His kedusha influences us personally.

*Although the story is true, all names have been changed.