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.

Special Tochacha Situations

Question #1: Talkative Boss

“My boss likes to gossip, and much of it is loshon hora. Am I required to tell him that this is prohibited according to halacha?”

Question #2: Admonishing a talmid chacham

“I saw a highly respected scholar talking during the repetition of the shemoneh esrei. Should I say something to him?”

Question #3: Public Tochacha

“I know of situations where great scholars protested in public what people did, embarrassing them publicly. Is this a proper way to observe the mitzvah of tochacha?”

Answer:

In this week’s parsha, Moshe admonishes a Jew for beating his fellow Jew, thus providing ample reason to continue our discussion on the mitzvah of tochacha, the Torah’s requirement to reprove someone for misbehavior. The two previous articles analyzed the basics of tochacha. We learned that the underlying principle of tochacha is the realization that fulfilling Hashem’s mitzvos is not merely an individual’s pursuit – it is a responsibility that I share with all of Klal Yisroel (see Sefer Hamitzvos #205). We are all members of the same people and share a common, collective mission.

In the previous articles, we also learned that, for tochacha to be successful, it must come from sincere caring about the person who has sinned, and should be conveyed in that tone. Tochacha should be presented in a way that is most likely to persuade the wrongdoer to mend his or her ways. We also learned that there are instances in which one should not admonish a sinner, such as when he/she does not realize that the action violates the Torah and it is clear that any reprimand will be ignored. On the other hand, we should note that the Chovos Halevovos (Shaar Cheshbon Hanefesh #17) quotes early sources (Shemos 2:13; Avodah Zarah 4a) that imply that, at times, one is required to protest, even when he knows that the offending party will not listen.

This article will discuss aspects of the mitzvah of tochacha that were not included in the previous essays, and with this information we will be able to answer our opening questions.

Someone who has wronged me

The mitzvah of tochacha applies when I was aggrieved by another person. If someone mistreated me, I may not resent, in silence, what that person did. This attitude violates the Torah’s prohibition of Lo sisna es achicha bilvavecha, “Do not hate your brother in your heart,” meaning, to bear the grudge in silence. Instead, there are two permitted courses of action from which I may choose:

1. I may tell the person that I am upset because he wronged me. This statement qualifies as a form of tochacha.

2. The other option is to forgive the evildoer for his ill-doing. This latter choice is the preferred course of action (Rambam, Hilchos Dei’os 6:9; see also Tosafos, Arachin 16b s.v. Va’anavah).

What is prohibited is for me to continue bearing a grudge silently against the person who perpetrated wrong against me. This is prohibited unless the person has the status of being a rosho, someone viewed as wicked according to halacha.

Repeat offender

In the previous article, we discussed what the halacha is if you see a person doing something wrong for which you have previously rebuked him. Are you required to rebuke him again? The Gemara rules that one is required to rebuke an evildoer repeatedly (Bava Metzia 23a). However, we find a dispute among rishonim whether or not this law applies in all situations when one is required to rebuke an evildoer (see Magen Avraham 608:3; Orach Meisharim, page 159), or whether it applies only to someone with whom you have a very close relationship, such as a sibling or parent (Sefer Chassidim #413).

In a situation when the Torah requires one to reproach the sinner repeatedly, is there no limit at all to how many times one must rebuke him? What if the sinner gets so angry that he curses, or even strikes, the person censuring him? Is the mochiach required to continue reproaching, even though he may be subjecting himself to physical or emotional abuse?

The Gemara cites a dispute among the three great, early amora’im, Rav, Shmuel, and Rabbi Yochanan, concerning the point at which one may refrain from rebuking the sinner. All three amora’im concur that there is a point at which the mochiach should refrain from admonishing. According to Rabbi Yochanan, once the evildoer becomes so upset that he responds with a nasty retort, the mochiach may refrain from further reprimand. Shmuel contends that angering the sinner to this extent is not sufficient reason to stop the censure, but one should continue until the sinner curses the mochiach. Presumably, Shmuel feels that, at this point, nothing is gained by the tochacha, since it is now causing the wrongdoer to sin even more by cursing a fellow Jew. Rav disagrees, contending that even if one is cursed by the sinner, one should continue to rebuke him, until one is concerned that the sinner may become violent (Arachin 16b).

I mentioned above that some authorities contend that one should not repeatedly rebuke anyone with whom one does not have a close relationship. According to this opinion, the dispute of Rav, Shmuel, and Rabbi Yochanan concerns only a close relative or friend who is rebuking, where the halacha is that he should reproach the sinner repeatedly – until the sinner responds either by shouting nastily, by cursing, or by striking, depending upon which opinion one follows. However, according to those who dispute this conclusion and contend that one must repeatedly admonish any sinner, the amora’im are discussing anyone who reproaches a sinner.

Becoming harsh

In the previous article, we learned that one should admonish in a gentle, soft way that conveys the message, “I care for you deeply; this behavior is not in your best interest.” One should never initiate reproach in a harsh manner. However, this halacha applies only in the initial stages of reproaching someone. When the repeated offender’s sin is bein adam lamakom, between himself and Hashem, and positive approaches have been unsuccessful, the authorities rule that one is required to become harsh with the evildoer, even to the point of embarrassing him in public to get him to do teshuvah (Rambam, Hilchos Dei’os 6:8; Sefer Hachinuch #239).

Other limitations

The Rema (Yoreh Deah 334:48) and the Mahari Weill (#157) rule that the Torah does not require one to spend money to fulfill the mitzvah of tochacha. They extend this idea to include that one does not need to be mochiach someone who might hurt you physically or financially. Someone who is being mochiach is not required to endanger himself or lose money to fulfill the mitzvah. (This appears to follow the approach of the Sefer Chassidim that the dispute among amora’im concerning to what extent one is required to be mochiach applies only when one is being mochiach close relatives, but not to others.) An extension of this law is that you are not required to be mochiach someone who might hurt you physically or financially (Rema, Yoreh Deah 334:48; Levush, Yoreh Deah 157:1; see Pischei Teshuvah, Yoreh Deah 157:5; cf., however, Teivas Gomeh, quoted by the above-mentioned Pischei Teshuvah, who disagrees.)

In the same context, the Darchei Teshuvah (157:20) quotes the following question in the name of the Tzemach Tzedek of Lubavitch: In a certain city, the local physician was a non-observant Jew. The question was whether there was a mitzvah to admonish him for his sins, knowing that such admonishment might cause him to relocate. This would endanger the populace, since they would now be without a physician to treat them. The Tzemach Tzedek ruled that they are not required to admonish him, since the result might imperil the community.

Admonishing the boss

At this point, we can address the first question we asked above:

“My boss likes to gossip, and much of it is loshon hora. Am I required to tell him that this is prohibited according to halacha?”

If the only concern here is the mitzvah of tochacha, it seems that there is no requirement to admonish one’s employer, if you are concerned that, as a result, he may fire you. However, there is probably a more serious question here: that of hearing loshon hora, since this boss probably enjoys sharing his gossip with you. There is discussion about such a shaylah in the sefer Chofeitz Chayim (Hilchos Loshon Hora 6:5). I refer the reader who has a specific question on this topic to his or her own rav or posek for a decision.

Tacit approval

Even though one is not required to admonish the evildoer, one should be careful not to imply that his actions are acceptable. This would violate the prohibition of chanufah, usually translated as flattery, which is a very serious Torah violation.

The story of Agrippas

The following story demonstrates how serious this prohibition is. King Agrippas, who reigned towards the end of the Second Beis Hamikdash, was an excellent ruler, highly respectful of the Gedolei Torah of his era and committed to the observance and spreading of Torah and mitzvos. Notwithstanding his many good qualities, calling himself “King” over the Jewish People violated halacha, since he was descended from gentile slaves, and the Torah states, lo suchal laseis alecha ish nachri asher lo achicha hu, “You may not place over yourselves a gentile who is not your brother” (Devarim 17:15). Agrippas, himself, realized that he was not permitted to be king, for when he observed the hakheil ceremony in the Beis Hamikdash on Chol Hamoed Sukkos (see Devarim 31:10-13 and Mishnah, Sotah 41a), he stood up while reading the Torah rather than read it while sitting, since sitting in the Azarah section of the Beis Hamikdash is a special privilege permitted only to kings who are descendants of David Hamelech. When Agrippas reached the words of the Torah that prohibit appointing a king who is not a Jewish native, his eyes began to tear, for he realized that he, himself, was violating this law. At that moment, the Sages present told him, “Don’t worry, Agrippas. You are our brother,” thus approving his reign, in violation of the Torah.

The Gemara (Sotah 41b) teaches that the leaders of the Jews should have been destroyed for violating chanufah, and that, at that moment, many catastrophic occurrences befell the Jewish people, resulting in extensive loss of life. Although, under the circumstances, the Sages were not required to admonish Agrippas for being king, they were forbidden to give the impression that they approved of his being a monarch. They were required to remain silent (Tosafos, Sotah 41b s.v. oso), which would constitute a respectful disapproval.

The Chovos Halevovos (Shaar Cheshbon Hanefesh #17) expands this concept. Although we have enumerated many instances where one is not obligated to be mochiach, in each of these situations one is required to internalize strong disapproval of the violations that one observes. The Chovos Halevovos bases this idea on the words of David Hamelech: I hated the gathering of evildoers (Tehillim 26:5).

Admonishing a talmid chacham

If someone who is not scholarly sees a talmid chacham do something that appears to be halachically incorrect, what is the proper thing for him to do? Does the non-scholarly person have a mitzvah to admonish the Torah scholar for his lapse?

The halacha is that one is required to rebuke the talmid chacham, and that even a disciple has a responsibility to be mochiach his own rebbe (Bava Metzia 31a). There are halachic details for giving such tochacha. The easiest approach is for the student to ask his rebbe respectfully what is the halacha in the situation (that was ostensibly violated). In this way, the disciple neither acts nor speaks disrespectfully since he did not tell his rebbe that he had committed a violation. If, indeed, the rebbe was in violation of a halacha, it has now been brought to his attention in an appropriate way. It also may be true that the rebbe is aware of opinions who permit the action under the specific circumstances involved.

The Gemara (Shabbos 55a) provides an example of this: Rav Yehudah was listening to the Torah lecture of his rebbe, the great amora Shmuel, when a woman entered and began screaming at Shmuel. Shmuel ignored the woman and continued his teaching. Rav Yehudah turned to his master, asking him: Does the master not accept the teaching of Mishlei (21:13): “One who closes his ears from the outcry of the poor will not be answered when he calls out (in prayer).” If Shmuel felt that the verse in Mishlei did not apply in his circumstance, he could have explained to his disciple why this is so.

There is an interesting sequel to this story, based on the following Talmudic passage. The amora, Rav Yosef the son of Rav Yehoshua, had an out-of-body experience in which he saw elyonim lematah vetachtonim lemaaleh, meaning that he had a vision of olam haba and saw that things there are often the reverse of how they appear in this world. Rabbeinu Chananel records that there was an oral tradition from the ge’onim, passed from one generation to the next, that what Rav Yosef saw was that in olam haba Shmuel was studying and imbibing Torah from Rav Yehudah, notwithstanding the fact that, in this world, Rav Yehudah was Shmuel’s disciple. In the world to come, the great amora Shmuel is treated as Rav Yehudah’s disciple, because of this one instance in which Rav Yehudah taught Shmuel the proper way to act (Tosafos, Bava Basra 10b s.v. Elyonim).

Here is another example:

A talmid sees his rebbe speak during the repetition of the shemoneh esrei. It is correct for the talmid to ask his rebbe: “Didn’t we learn that one may not talk during the chazaras hashatz?” Framing the rebuke as a question is milder than saying to his rebbe directly: “It is forbidden to talk during chazaras hashatz.”

As we noted above, someone who sees a person talking during chazaras hashatz is required to feel tremendous love for this person, so much so that it pains him to realize that the talker will be punished for his misdeed. Then, the mochiach tries to figure out what will be the most effective way of communicating both these feelings and the message to the wrongdoer.

Did the talmid chacham do teshuvah?

The Gemara shares with us an interesting insight: One who observes that a talmid chacham did something wrong should assume, by the next day, that the talmid chacham has already done teshuvah for his sin (Brachos 19a). Although it is possible that, in the passion of the moment, the talmid chacham may have sinned, he will certainly regret his failure afterwards and will do teshuvah for it.

The halachic authorities ask the following question: Does this insight, that a day after witnessing his misdeed one should assume that the talmid chacham has already done teshuvah, have ramifications as to whether one should admonish the talmid chacham when one next sees him? Should one assume that the talmid chacham has already performed a complete teshuvah and that admonishing him at this point is no longer necessary or correct?

We find a dispute among the acharonim concerning this question. Some rule that one should assume that the talmid chacham did teshuvah already, and that there is no more reason to be mochiach him (Yad Ha’ketenah, as explained by Zeh Hashaar and Shevilei Chayim 4:20). Others contend that one should be mochiach, unless one knows that the talmid chacham has already done teshuvah (Be’er Mayim Chayim, Hilchos Loshon Hora 4:18).

Conclusion

The Gemara tells us the following pithy statement: A talmid chacham is beloved by the other residents of his city not because he is so wonderful, but because he fails to admonish them on heavenly matters (Kesubos 105b). As we mentioned above, when admonishing people for not being careful about matters between man and fellowman, one rebukes only in private. However, when one needs to reproach people for violating their responsibilities to Hashem, one may be required to rebuke them even in public.

More on Tochachah

Question #1: Un-coifed Colleague

“A colleague at work who does not cover her hair asked me what I think of her new hairstyle.  How should I answer?”

Question #2: Wayward Classmate

“I met my former classmate, and I see that she is no longer observing the level of tzeniyus that we did when we were together in seminary. Must I say something to her about this?”

Question #3: The Davening Talker

“I find it disturbing to see people talking or whispering during chazaras hashatz, the repetition of the tefillah, but I must admit that sometimes I’ll answer someone who asks me something during that part of the davening. Do I have a responsibility to tell people that they should not talk during chazaras hashatz?”

Answer:

In this week’s parsha, Yaakov avinu admonishes his sons prior to his passing. Last week, we noted that when Yosef said ani Yosef, ha’od avi chai? “I am Yosef. Is my father still alive,” he was admonishing his brothers for their inconsistent behavior. This provided an to discuss the laws of tochachah, which continues in the present article.

As I mentioned last week, the underlying principle of tochachah is the realization that fulfilling Hashem’s mitzvos is not merely an individual pursuit – it is a responsibility that one shares with all of Klal Yisroel (see Sefer Hamitzvos #205). We also learned that the mitzvah of tochachah applies whether the sin perpetrated is between man and his fellowman or whether it is between man and Hashem (Sefer Hachinuch #239). In addition, we noted that the most basic rule of tochachah is that the mochiach, the person who is reproving, must truly care for the offender.

On the other hand, the halachah is that when it is clear that a sinner will ignore any reprimand, one should not attempt to admonish him. In these instances, censure will cause the evildoer to sin more, rather than to do teshuvah, and, therefore, it must be avoided. However, only when it is absolutely certain that the sinner will not listen, is there no mitzvah either to rebuke or to protest. As long as the possibility exists that the sinner might listen, one is required to rebuke him.

Someone who rejects Torah

There is no mitzvah to admonish an evil person who hates those who observe Torah (Tanna debei Eliyahu Rabbah, Chapter 18). When the Torah presents this mitzvah, it states, hochei’ach tochiach es amisecha, “surely, rebuke your ‘fellowman,’” but the word used, amisecha, refers to someone who observes Torah and mitzvos. The Mishnah Berurah rules that there is no mitzvah to reproach someone who desecrates Shabbos in public or who eats non-kosher when he has kosher food readily available – such a person is beyond the pale of being called amisecha. The Mishnah Berurah is uncertain whether there is a mitzvah to admonish someone who observes Shabbos, but keeps kosher only when it is convenient to do so, or someone who observes Shabbos in public, but desecrates it in private (Biur Halachah, 608:2 s.v aval; however, see Shu’t Avnei Neizer, Yoreh Deah #461, who understands that, in all these instances, there is still a mitzvah of tochachah).

 

Rebuking a Torah scholar

There is a dispute among acharonim whether admonishing a talmid chacham applies after he did the aveirah. Perhaps one should assume that he did teshuvah already and that, therefore, there is no more reason to be mochiach him. This latter approach is that of the Yad Haketenah as explained by the Zeh Hashaar and the Shevilei Chayim 4:20. The Be’er Mayim Chayim ((Hilchos Loshon Hora 4:18) does not agree and contends that one should be mochiach, unless one knows that the talmid chacham did teshuvah.

Mutav sheyihyu shogagin

Last week, we learned that one should not reprimand someone who commits a violation that he is unaware is forbidden, when one is certain that he will continue after the prohibition is called to his attention. This is usually the proper approach to follow when a sizable population does something that is clearly forbidden (Biur Halachah, 608:2 s.v. Vedavka, quoting Shu’t Me’il Tzedakah #19 and Machatzis Hashekel).

What if he asks?

Many years ago, I was among a group of married women who, although observant, did not cover their hair. Because of the halachah of mutav, I was not permitted to discuss this question with the group. However, when a woman from this group asked me to explain the halachah, I was required to answer the halachah accurately and in full detail (Shu’t Igros Moshe, Orach Chayim 2:36). The halachah of mutav applies only in a situation of tochachah. Furthermore, the Maharshal demonstrates that one may never distort a detail of the Torah, since this is considered falsifying the Torah. He rules that this is considered a severe enough prohibition of the Torah that it is yaharog ve’al yaavor – one is required to give up one’s life rather than to distort even one law of the Torah (Yam shel Shlomoh, Bava Kama 4:9). Falsifying the Torah is equivalent to denying the entire Torah, which is why one is required to sacrifice one’s life, rather than misrepresenting a Torah truth.

Probably won’t listen

Should one reproach an ill-doer when one knows that he probably will not listen? The halachah of mutav applies only when one is certain that the offending party will not listen. When one thinks that he will probably not listen, but it is not certain, one is required to admonish the offender (Tosafos, Bava Basra 60b s.v. Mutav).

Clearly in the Torah

Are there any instances when tochachah should be given and the rule of mutav does not apply, even when the person doing something forbidden will not listen to tochachah? Yes, there are.

The rishonim dispute whether the law of mutav applies even when the prohibition is written unmistakably in the Torah. Many rishonim contend that when the Torah overtly prohibits the activity, there is an exception to the law of mutav. In this instance, these authorities contend that one is required to rebuke those who violate this prohibition, even when the lack of concern about the prohibition is quite common. Others contend that when you are certain that the wrongdoer will ignore the admonition, you are not required to rebuke, even when the prohibition is distinctly delineated in the Torah. (Both opinions are quoted in Biur Halachah 608:2 s.v. Aval.) The Rema (Orach Chayim 608:2) concludes that one is required to admonish, in accordance with the first opinion.

Some authorities contend that this law applies only when we are in a position to stop the evildoers from their errors, but that there is no requirement to protest when we cannot prevent sinners, even when the prohibition is written overtly in the Torah (Birkei Yosef, Orach Chayim 608:4). Others contend that, under these circumstances, one will not be punished for not having protested, but there is still a mitzvah to protest the misdeed (Magen Avraham 608::3, quoting Semaq).

Maybe it is clear

Assuming that we follow the Rema and rule that one is always required to rebuke someone violating a prohibition that is explicitly expressed in the Torah, there is a further dispute among authorities whether the rule of mutav applies when it is questionable if the sinner will be violating a Torah law, such as someone who violates Shabbos during the bein hashemashos period when it is questionable if Shabbos has already begun. The Yam shel Shlomoh (Beitzah 4:2) rules that the rules of mutav apply, whereas the Machatzis Hashekel (on Magen Avraham 608:2) is uncertain whether mutav applies in this situation.

Ruled in error

Similarly, there is no mitzvah to admonish someone who received a clearly erroneous ruling permitting a particular activity, since he will not listen. However, once the person who issued the decision recanted it, Rav Moshe Feinstein rules that there is now a mitzvah of tochachah, since the possibility exists that the errant party may now listen to reason or re-ask the question (Shu’t Igros Moshe, Even Ha’ezer 4:61:2 s.v.Ulefi zeh).

Repeat offender

What is the halachah if you see someone do something wrong for which you have previously rebuked him in a soft, kind way, as described above. Are you required to rebuke him again?

The Gemara rules that one is required to rebuke an evildoer repeatedly (Bava Metzia 23a). Nevertheless, we find a dispute among rishonim whether or not this law applies in all situations where one is required to be mochiach. The Sefer Chasidim explains that this Gemara is discussing someone with whom you have a very close relationship, such as your brother or parent. Such a person will not begin to hate you if you admonish him repeatedly for his sinful behavior, and, therefore, there is no limit to the number of times that you must rebuke him. However, in the opinion of the Sefer Chasidim, one should not admonish repeatedly someone with whom there is not such a close relationship — out of concern that repeating the rebuke may cause him to hate you (Sefer Chasidim #413, quoted by Magen Avraham 608:3).

It appears that most authorities do not accept this distinction of the Sefer Chasidim, but rather rule that whenever I have a mitzvah to rebuke someone, I must do so repeatedly (see Magen Avraham 608:3; Orach Meisharim, page 159).

Who is a true friend?

At this point, we can address one of the questions we asked above: “I met my former classmate, and I see that she is no longer observing the level of tzeniyus that we did when we were together in seminary. Must I say something to her about this?”

Under most circumstances, one is required to think of the most effective way that would get the classmate to realize that she is harming herself, and to figure out how to present this to her in an effective and loving fashion. Even if one is unsuccessful, the mitzvah of tochachah is fulfilled.

Upon this basis, we can appreciate the following statement of Chazal:

If you have two groups of friends, one which praises you and the other which admonishes you, love the admonishers and despise those who praise you, because the admonishers will bring you to eternal life (Avos derabbi Nosson 29:1, quoted in Shaarei Teshuvah 3:292).

Straighten yourself first

What is the halachah if I see someone do something wrong, but I know that I myself sometimes slip and violate this law? Does my somewhat lackadaisical attitude towards this halachah exempt me from the requirement of reproaching someone else for its violation?

The halachah here is very straightforward: I cannot effectively rebuke someone for something that I myself violate, but, at the same time, this does not exempt me from the requirement of reproaching him. As we are all aware, one cannot influence someone else to be careful about behavior that one does not, himself, observe. Therefore, one has no choice but to stop his own incorrect behavior, and then, after one has done teshuvah for it, one should be mochiach the person who is still violating it. The Gemara records this ruling in the following pithy way: Straighten out yourself, and then proceed to straighten out others (Sanhedrin 18a). Actually, this idea predates the Gemara: The prophet Tzefaniah 2:1 had already pointed out that one has a responsibility to straighten out his own actions, so as to be able to reproach others for their shortcomings.

At this point, we can address the third question raised at the beginning of our article:

“I find it disturbing to see people talking or whispering during chazaras hashatz, the repetition of the tefillah, but I must admit that, sometimes I’ll answer someone who asks me something during that part of the davening. Do I have a responsibility to tell people that they should not talk during chazaras hashatz?”

The halachah is very clear: The individual asking must work on himself not to talk during the chazaras hashatz, both because of the halachah that requires this and because of the mitzvah of tochachah that he violates when he is unable to reproach people for this transgression.

Tochachah for gentiles?

We now understand why the mitzvah of the Torah does not include a commandment to rebuke gentiles. That some prophets were instructed to admonish the gentiles for their ill behavior was not part of the Torah’s regular mitzvah of tochacha, but a special commandment that these prophets received as part of their prophecy.

Conclusion

As I mentioned above, the basis of the mitzvah of tochachah is that my role in observing mitzvos is as a member of Klal Yisroel –and that I carry responsibility for my brethren at all times. It is insufficient for me to feel that I am minding my own garden when there are other Jews who are distant from our Father. I should always think of ways to help them return to the protective guidance of Hakadosh Baruch Hu.

Essentials of Tochachah

Question #1: Cross-gender Tochachah

“The Mishnah states that a man should not converse unnecessarily with a woman. At my workplace, there is a girl who is ostensibly observant, but I see inconsistencies in her observance level. Am I supposed to try to help her become more committed?”

Question #2: Ignored Admonition

“Is there a mitzvah to admonish someone when I know that he will ignore me?”

Question #3: Admonisher or Enemy?

“I know that there is a mitzvah to be mochiach, but I am always concerned that I will make these people into my enemies. Should I be concerned?”

Answer:

In this week’s parshah, Yosef reveals himself to his brothers, by saying the immortal words, ani Yosef, ha’od avi chai? “I am Yosef. Is my father still alive?” According to many commentaries (Ha’amek Davar, based on Chagigah 4b), Yosef intended these words as admonition, tochachah, to his brothers: Why are you suddenly concerned about how your father will react to Binyomin’s disappearance, when you were not concerned how he would react to my disappearance?[1] This provides an excellent opportunity to discuss the laws of tochachah, the requirement to reprove someone for misbehavior, a frequently misunderstood mitzvah.

The underlying principle of tochachah is the realization that fulfilling Hashem’s mitzvos is not merely an individual pursuit – it is a responsibility that I share with all of Klal Yisroel (see Sefer Hamitzvos #205). In explaining the reason for the mitzvah of tochachah, the Shaarei Teshuvah (3:19) notes that a devoted servant or employee performs his own work diligently and also tries to see that his co-workers do their jobs conscientiously. We are all members of the same people and share a common, collective mission.

The mitzvah of tochachah applies whether the sin perpetrated is between man and his fellowman or whether it is between man and Hashem (Sefer Hachinuch #239). Furthermore, the mitzvah applies equally to men and women – both have a requirement to be mochiach, and both should be admonished when they violate the Torah (Sefer Hachinuch #239). In addition, tochachah is a mitzvah that one should fulfill cross-gender; that is, a man is required to be mochiach a woman, and a woman is required to be mochichah a man. We can demonstrate this principle through the following passage:

Eili and Channah

The pasuk describes how Channah went to Shiloh, the location of the Mishkan, at the time the primary religious headquarters of the Jewish people, and prayed to Hashem that she merit conceiving and bearing a child. She prayed at great length to Hashem, and Eili was watching her mouth. Channah spoke in an undertone, with only her lips moving but her voice inaudible, and Eili thought that she was intoxicated. So, Eili told her, “For how long will you continue to be intoxicated? Remove your wine from yourself!” Channah responded, saying, “No, my lord, I am a woman who is greatly distressed. Wine and other intoxicating beverages I have not imbibed. I am pouring out my soul before Hashem (Shmuel I, 1:12-15).

Based on Eili’s reproof of Channah, the Gemara derives that the mitzvah of tochachah includes not only admonishing someone for sinning, but even for inappropriate behavior that is not sinful (Brachos 31b, as explained by Tosafos ad loc.) After all, Eili was admonishing her not for doing something specifically sinful, but for behaving in an inappropriate manner.

The cardinal rule of tochachah

The most basic rule of tochachah is that the mochiach, the person who is reproving, must truly care for the offender. Being sincerely concerned about the other person’s welfare is a condition which must be met, if the reproof is to be successful. Thus, tochachah is an extension of Ahavas Yisroel, loving our fellow Jew. The Rambam (Hilchos Dei’os 6:7) writes that the mochiach should explain that he is helping the offender earn a greater share in olam haba. To quote him: “One who sees his friend sinning or following a lifestyle that is not good has a mitzvah to influence him to return to the proper way and to inform him that he is harming himself… The one who rebukes must do so privately, with a pleasant manner and a soft voice.”

So, how do I influence someone if I do not love him? The answer is that I am required to teach myself to love him, both to observe the mitzvah of Ahavas Yisroel and in order to fulfill the mitzvah of tochachah.

That tochachah must be performed in a pleasant manner is again borne out in the following Talmudic passage: the Mishnah (Shabbos 34a) rules that shortly before Shabbos begins, a man is required to ask his family members whether all maasros and challah portions have been separated and whether the eruv has been set up. He then instructs them to kindle the lights in honor of Shabbos. The Gemara makes a point of noting that one should say all these things in a soft voice. These instructions are, in a way, very similar to admonishing one’s family members.

One size does not fit all

Prior to admonishing someone, the mochiach should analyze carefully what will be the most effective way to influence the offender. The tochachah should be tailor-made to the person receiving it and presented in a way that it is most likely to influence him or her to change. One should use stories, parables, and/or logical proofs, depending on what will speak most convincingly to the heart of the person one seeks to persuade (Sefer Chassidim #5).

Example:

Yitzchak is aware that he is required to influence his next-door neighbor, Benny, to be more observant. Yitzchak realizes that, to draw Benny closer to mitzvos, Yitzchak must sincerely care about him. Thus, Yitzchak’s first step is to truly care for Benny and to use every opportunity to develop a friendship. Once Benny feels that Yitzchak truly cares, he will be open to listening to what his friend has to say. At this point, Yitzchak can begin to explain the benefits Benny reaps by observing mitzvos carefully.

We can now understand the following, somewhat rhetorical, declaration of the Gemara: Rabbi Elazar ben Azaryah said: I would be astounded to learn that there is anyone in our generation who knows how to admonish” (Arachin 16b).

Notwithstanding this observation, the halachic authorities rule that there is still a mitzvah of tochachah, and that one is required to strive to observe it (see Le’reiacha Kamocha pg. 286, quoting numerous authorities).

It is axiomatic that admonishing someone should not embarrass him (Arachin 16b; Toras Kohanim to Parshas Kedoshim). The recipient of the tochachah must be taught that it is in his best interest to improve, something that cannot usually be accomplished in an antagonistic interaction.

On the other hand…

Whoever has the ability to protest the misdeeds of members of his household and fails to do so is accountable for what they have done. The same is true for someone who could protest the misdeeds of the residents of his city and even the entire world and fails to do so. Therefore, the household of the Exilarch (Reish Galusa) is accountable for the misdeeds of the entire world (Shabbos 54b). Similarly, the entire Jewish people were punished in the days of Yehoshua for the crime of one individual, Achan (Yehoshua 22:20). Again, we find that the Kohen Gadol was responsible for the entire Jewish people. If one man sins, the entire nation will be punished, because of their failure to reproach him (Shaarei Teshuvah 3:72).

However, someone who admonished the evildoer appropriately has fulfilled the mitzvah of tochachah and will not be punished for the sinner’s evil deeds (Shaarei Teshuvah 3:72; Sefer Chasidim #5). To quote the Navi, Yechezkel: Because you warned the evildoer to repent from his way, even though he did not repent – he will die for his sin, but you have saved your own life (Yechezkel 33:9).

Tochachah that will be ignored

However, the halachah is that when it is clear that a sinner will ignore any reprimand, one should not attempt to admonish him, as it says in Mishlei (9, 8): Do not rebuke a scoffer, lest he come to hate you; rebuke a wise man, and he will love you. As the Gemara expresses this idea: Just as it is a mitzvah to say something that will be heeded, so it is a mitzvah to refrain from saying that which will be disregarded (Yevamos 65b). In these instances, censure will cause the evildoer to sin more, rather than to do teshuvah, and, therefore, it must be avoided.

Who qualifies as a scoffer?

This question is discussed in a different passage of Gemara (Shabbos 55a), where we find the following conversation:

Rabbi Zeira said to Rabbi Simon: “The master should chastise the members of the Reish Galusa’s household.”

Rabbi Simon responded: “They will not listen to me.”

To this, Rabbi Zeira retorted: “Even if they will not listen, admonish them.”

Rabbi Zeira then quoted an Aggadic passage, in which a conversation transpired between Midas Hadin, the attribute of justice, and Hashem. At one point in this “conversation,” Midas Hadin challenged Hashem to punish the righteous for not protesting the evildoings of the wicked. Hashem answered: “I know for certain that even had the righteous protested, the wicked would not have listened.” To this, Midas Hadin retorted: “You knew that the wicked would not have listened. But how did the righteous people know?” And since the righteous had no way of knowing that the evil would not listen, they should be punished for not having attempted to influence them.

We can therefore conclude that only when it is absolutely certain that the sinner will not listen is there no mitzvah either to rebuke or to protest. However, as long as the possibility exists that the sinner might listen, one is required to rebuke him.

Mutav sheyihyu shogagin

There are other instances when one should not rebuke someone who is sinning. This is when one is certain that the sinner will not change after being admonished and, also, he may not know that the activity is forbidden (Sefer Chasidim #413). This halachic status is called Mutav sheyihyu shogagin ve’al yihyu meizidin, “Better that they sin out of ignorance than that they become intentional sinners” (Beitzah 30a; Bava Basra 60b). For brevity’s sake I will refer to this status as “mutav.”

In this situation, the tochachah will probably accomplish only that the person will now be sinning intentionally, instead of out of a lack of knowledge. Since the result of the reproach is not constructive, it should be avoided.

The law of mutav, better that they sin unintentionally than intentionally, is true even when the prohibition is quite clear and could easily be discovered by the sinner. In other words, the sinner is considered shogeig, uninformed that what he is doing is forbidden, only because he does not want to know the truth. For example, even when all halachic authorities discuss the matter and prohibit the activity, the sinner is still considered one who acted out of ignorance rather than with intent. One should avoid telling him of his error when one assesses that knowledge of the sin will not affect his behavior.

This background allows us to understand a passage of Gemara that otherwise seems extremely strange:

A person should always live in the place where his rebbe does, for as long as Shimi ben Geira [Shlomoh Hamelech’s rebbe] was alive, Shlomoh did not marry the daughter of Pharoah. [Rashi notes that the verse mentions Shlomoh marrying Pharoah’s daughter immediately after it mentions Shimi’s death, see Melachim I, 2:46 – 3:1.] However, there is a beraysa that says that one should not live in the place of his rebbe. [Thus, we have two halachic statements that seem to say diametrically opposite ideas.] These two statements do not disagree. One is discussing someone who listens to the rebuke of his rebbe and therefore being proximate to his rebbe will prevent him from sinning. The Beraysa is discussing someone who does not listen to his rebbe (Brachos 8a).

As Rashi explains, someone who does not listen to his rebbe is better living distant from his rebbe, so that he is considered negligent when he does not hear his rebbe’s admonition. This is less severe than someone who ignores the admonitions. The latter person will become an intentional sinner when he ignores his rebbe’s admonition. The rule of mutav applies notwithstanding his having moved a distance from his rebbe so as not to be reproached for this misdeed!

Probably won’t listen

Should one reproach an ill-doer when you know that he probably will not listen? The halachah of mutav applies only when one is certain that the offending party will not listen. When one thinks that he will probably not listen, but it is not certain, one is required to admonish the offender (Tosafos, Bava Basra 60b s.v. Mutav).

We will continue our discussion about the mitzvah of tochachah next week.


[1] For a halachic explanation of the sale of Yosef, see the chapter on this topic in my book From Buffalo Burgers to Monetary Mysteries.

Explaining the Mitzvah of Pidyon Shevuyim

Question #1:

“Recently I saw an advertisement saying that it was pidyon shevuyim to save a child from being raised non-Jewish. But I thought pidyon shevuyim is to free a captive, and these children are with their non-Jewish father.”

Question #2:

“Is there a mitzvah of pidyon shevuyim when someone was captured because he was doing something irresponsible or illegal?”

Question #3:

“I know that the Mishnah states that one should not redeem captives at greater than their market value, but how does one establish market value for a person?”

Answer:

Many news items have revolved around the issue of pidyon shevuyim, the mitzvah to redeem captives or hostages, which Chazal call a mitzvah rabbah — a great mitzvah. And yet, notwithstanding how important a mitzvah it is, at times Chazal placed limitations on pidyon shevuyim. The goal of this article is to understand the importance of this mitzvah and its basic halachic rules and concepts.

Introduction:

The magnitude of the mitzvah of pidyon shevuyim is reflected in the following passage of Gemara, which is, at the same time, a commentary to a very heartbreaking passage of Navi:

Rava asked Rabbah bar Mari: What is the source for the Sages’ statement that redeeming captives is called a “great mitzvah”?

In response, Rabbah bar Mari cited the following verse in Yirmiyahu, which contains tremendously harsh rebuke of the Jewish people:

“Vayomer Hashem eilai, im yaamod Moshe UShmuel lefanai, ein nafshi el ha’am hazeh; shalach mei’al panai veyeitzei’u. Vehayah ki yomru eilecha ana neitzei? Ve’amarta aleihem, ko amar Hashem, asher lamaves, lamaves; va’asher lacherev, lacherev; va’asher lara’av, lara’av; va’asher lashevi, lashevi.

“Hashem said to me, even were Moshe and Shmuel to stand before me and plead on behalf of the Jews, I have no interest in this people – send them away from before me, and they shall go.

“And if they [the Jews] ask you [Yirmiyahu], ‘Where are we going?’ Tell them, ‘So said Hashem: he that is destined for natural death will meet natural death; he that is destined for the sword will meet the sword; he that is destined for hunger will perish through hunger; and he who is destined for captivity will be captured’ [Yirmiyahu 15:1-2].

Rabbah bar Mari then added the commentary of Rabbi Yochanan: “This pasuk is organized according to progressively harsh travail. Violent death is more severe than natural death. Death from starvation causes far greater suffering than violent death. Being captured is a greater calamity than death itself — because it includes all the others.” (Bava Basra 8b)

The Rambam (Hilchos Matanos Evyonim 8:10) codifies the conclusion of Rabbah bar Mari ‘s statement:

Redeeming captives receives priority over providing the poor with food and clothing. There is no mitzvah greater than redeeming captives, because a captive is included among those who are starving, those who are thirsty, those who are without clothing, and he is in life-threatening danger. Someone who hides from redeeming him violates the following Torah prohibitions:

(1) Lo se’ameitz es levavecha — do not harden your heart from helping the poor (Devarim 15:7)

(2) Lo sikpotz es yadcha — do not close your hand (ibid.)

(3) Lo saamod al dam rei’echa — do not stand by when someone’s life is in danger (Vayikra 19:16)

(4) Lo yirdenu befarech le’einecha — do not subjugate him with hard work (Vayikra 25:53).

He also violates the positive mitzvos of:

(1) Ki paso’ach tiftach es yadcha lo — you shall surely open your hand to him (Devarim 15:8),

(2) Vechei achicha imach  allow your brother to live with you (Vayikra 25:36)

(3) Ve’ahavta le’reiacha kamocha love your fellowman as yourself (Vayikra 19:18).

The halacha is that, if necessary, one may sell a sefer Torah to raise the money for redeeming captives (Tosafos, Bava Basra 8b s.v. Pidyon; Shach and Taz to Yoreh Deah 252:1) Although one should not sell a shul to be able to redeem captives, this is only because we want people to dip into their pockets deeply enough to produce the resources. However, when one knows that this will not provide sufficient funding, one may even sell a shul for pidyon shevuyim money (Shach and Taz ibid. Mishnah Berurah 153:24; cf., however, Derishah to Yoreh Deah 252 who disagrees).

Why don’t we redeem captives?

Thus, we find it very surprising that, under certain circumstances, Chazal prohibited redeeming captives. The Mishnah (Gittin 45a) rules one may not redeem captives for more than their market value, because of tikun olam. What does this Mishnah mean that there is a tikun olam, which literally translates as an improvement of the world, not to redeem captives? And what does the Mishnah mean when it says for greater than their market value?

The Gemara presents two disputing reasons how tikun olam is accomplished by limiting the redemption outlay for captives.

(1) The financial pressure will be greater than the community can bear.

(2) The captors will strive to capture other Jews as a result.

Let me explain. In earlier generations, the main cause for someone being captured was not for ransom and not as a hostage for political or prisoner exchange, but because pirates or a marauding armed gang would seize whatever they could of value, and human captives had commercial value as slaves. Thus, any person capable of working had an estimated market price at a slave auction (see Rashi, Kesubos 52b s.v. Trei; however, cf. Shu’t Radbaz 1:40). Notwithstanding the tremendous mitzvah of redeeming captives, Chazal limited how much one should pay to free captives, out of concern that pirates and other criminals would discover that capturing members of the Jewish people is particularly lucrative, and, as a result, they would deliberately target Jews. Thus, the Mishnah‘s takanah established a law that avoids saving one Jew at the expense of creating a menace to others; which explains why it is a tikun olam — it improves world safety.

Why is financial pressure greater than pidyon shevuyim?

This explains the Mishnah‘s takanah according to the second reason cited by the Gemara. However, the Gemara had previously cited a different reason for the tikun olam, which was that redeeming captives at a high price might cause undue financial pressure on the community. This appears to be a strange reason to prevent redeeming captives, particularly when we consider every captive to be in a circumstance of life-threatening emergency. Why would Chazal establish that financial pressure should override pikuach nefashos?

The Chasam Sofer (Shu’t Choshen Mishpat #177 at end) explains that when unlimited redemption funds are paid by the Jewish community coffers, the population itself will become impoverished, which will result in numerous life-threatening emergencies. (The current European financial and political crises are reflective of this.) Therefore, both reasons of the Gemara prevent the threat to one individual from endangering many others.

To sum up. The Mishnah cites a takanah not to redeem captives at greater than their market value because of a tikun olam, and the Gemara cites two reasons to explain the tikun olam, both of which are meant to avoid an inevitable situation that will endanger more people.

A difference in practical halacha

Is there any difference in halacha between the two reasons? Indeed, there is.

According to the first reason — that we are concerned about impoverishing the community – the takanah includes only a situation in which public funds are being used, but not when the redemption money is raised privately. However, according to the second reason, that we are concerned that criminals will now target Jews, the takanah is applicable even when we are raising private funds to redeem the captive, since this establishes a precedent that endangers other people. Thus, the two explanations of tikun olam disagree whether the takanah was specifically that the official community coffers may not be used to redeem captives at greater than market value, or whether this was an absolute takanah binding on all individuals.

To explain this consequence, the Gemara cites the story of a man named Levi bar Darga, who redeemed his captured daughter for a huge sum. The Gemara notes that whether Levi bar Darga was permitted to do this or not depends on which of the two answers of the Gemara we accept. If the tikun olam was to protect future captives, Levi bar Darga was not permitted to redeem his daughter at above her value in the slave market, since this would encourage the targeting of Jews. However, if the tikun olam is to avoid undue pressure on the community chest, Levi bar Darga and any other individual who is paying a ransom out of his personal pocket are permitted to pay whatever they choose, since they are making no requests of the community.

An interesting exception

There is one interesting exception to this rule. The poskim rule that the takanah not to redeem a captive for greater than his market value applies only to a third party redeeming someone, but does not apply to the captive himself, who may redeem himself at whatever price the captors demand (Tosafos, Kesubos 52a s.v.Vehayu; Shulchan Aruch, Yoreh Deah 252:4).

If the captors threaten bloodshed

Now that we understand why we may not redeem captives for more than “market value,” we will explore whether there are any other exceptions to the tikun olam rule.

Is there any exception when the peril to life is more direct, such as when the captors threaten to execute the captives if their ransom demands are not met? Granted that the Rambam states that every instance of redeeming captives is pikuach nefesh, there are instances in which the level of pikuach nefesh is much greater, such as when the bloodthirsty captors may execute their hostage rather than sell him or her into slavery. Under these circumstances, does the rule of not redeeming captives above their market price still exist?

Indeed, many authorities consider this case to be an exception to the rule (Tosafos, Gittin 58a s.v. Kol and 45a s.v. Delo). They rally support to this position from the following story recorded by the Gemara (Gittin 58a). The great Tanna, Rabbi Yehoshua ben Chananya, was in Rome shortly after the churban of the Beis Hamikdash when he heard of an unusually gifted lad who had been captured. Rabbi Yehoshua succeeded in communicating with the child and was tremendously impressed by the child’s acumen, realizing that this child would become a valuable asset for the Jewish people if he would be allowed the opportunity to develop into a Torah scholar. Rabbi Yehoshua decided to buy the child’s freedom at whatever this would cost, which he succeeded in doing at a very high premium. The child grew to become the Tanna Rabbi Yishmael.

Tosafos raises the question: how was Rabbi Yehoshua permitted to collect such a high ransom, when Chazal prohibited redeeming captives at above market price? Tosafos presents three reasons why Rabbi Yehoshua was permitted to do so.

(1) When there is a clear danger, the takanah does not apply.

(2) The Jewish people’s need for Torah scholars is very great, and therefore, one may redeem talmidei chachamim and potential talmidei chachamim at a higher price.

(3) At the time of the churban, how much ransom one paid to release a particular prisoner would not affect how many captives the Romans seized. Thus, the reason for the takanah did not apply in this instance.

Targeting talmidei chachamim

Many of us know of the famous story of the Maharam of Rottenberg (Germany), the famous thirteenth century “Captive Rabbi,” who refused to allow himself to be redeemed for an excessive price, out of concern that this would become a common practice of gentile kings and marauders. There is no reason to assume that the Maharam disagreed with Tosafos‘ conclusion that one may redeem Torah scholars at above market price. It is more likely that the Maharam realized that in his day, were he to have be redeemed for an exorbitant ransom, it would have endangered other talmidei chachamim and caused a great loss of talmidei chachamim to klal Yisrael.

Redeeming from imminent danger

Later poskim debate whether the first answer of Tosafos, that the takanah does not apply when the captive is in grave danger, is considered the final say in halacha (see Pischei Teshuvah, Yoreh Deah 252:4). For example, the following responsum disputes Tosafos’ conclusion:

In the early sixteenth century, the Maharam of Lublin, Poland, was asked the following question by the Jewish community of Apta. (We should be careful not to confuse him with the Maharam of Rottenberg whom I mentioned above, who lived in Germany some 300 years earlier.) A young man of their community had been seized by gentiles, who contended that they had caught him engaged in unsavory activities, and that they were going to either execute him or forcibly convert him to their religion, in this instance, Islam. The community questioned whether it was required to redeem the young hostage, since he was accused of violating halacha and, in addition, had caused his own imprisonment by acting foolishly. In addition, assuming that they were responsible for redeeming him, they asked whether they were required to do so if the ransom demanded was excessive. (It appears from the responsum that the redemption funds would come from the general community funds or, perhaps, a special tax collection for this purpose.)

The Maharam responded that even were we certain that the young man had sinned, this fact would not exempt the community from redeeming him, even with use of public funds. Nevertheless, the Maharam contends that although they are required to redeem him, they are not required to pay more than his market value, even though his life is in serious danger. The Maharam contended that every captive is in life-threatening danger, yet Chazal ruled that we do not redeem captives at greater than “market value” because the potential life-threatening menace to the larger community endangers more people (Shu’t Maharam Lublin #15).

(The responsum of the Maharam has a surprising ending. After discussing all the halachic ramifications of the question asked, he reports that he consulted with a wise scholar familiar with the political scene near Apta, a certain Rav Moshe ben Rav Yehoshua, who advised that the accusation against the young man was merely an excuse of the jealous and greedy gentiles to demand funds from the Jewish community, and that the particular crime of which the young man was accused did not warrant the punishment they were threatening. Furthermore, the Maharam notes, it was uncertain whether the young man had indeed performed the act of which he was accused.)

Kidnapping for ransom

Does the takanah apply today, when the potential captors are not looking for prisoners that they can sell as slaves, but rather hostages that they can hold for ransom?

In an early responsum, the Radbaz (Shu’t #40) notes that the custom is to redeem captives at above the value that they would fetch in the slave market. He contends that even though the price is often ten or more times the captive’s slave value, the fact that the captors are not looking specifically for Jews means one can pay the higher price that a ransom would fetch. However, he notes that one should not pay more than gentiles would pay as ransom, since this could lead the captors to single out Jews in the future. The Radbaz notes, however, that common custom was to redeem at even higher prices. The Radbaz then proceeds to explain that this practice, which appears to run counter to the takanah of the Mishnah, is based on the following four heterim.

  1. Since there are wealthy gentiles who pay high ransoms for family members, potential kidnappers will target wealthy people, not necessarily Jews.
  1. Sometimes, the captive qualifies as a talmid chacham, who may be redeemed at above market price.
  1. When there are minors involved who will be lost to Judaism, we may redeem them at any price.
  1. We are not providing public funds, but seeking donations for these redemptions, which is not included in the takanah according to the first approach of the Gemara. (This last reason of the Radbaz is surprising, since the Rif, Rambam, and other major halachic authorities all rule according to the second reason the Gemara cited.)

Saving children from shmad

The third justification of the Radbaz touches on a different question, which unfortunately has become common, and leads us to a discussion about a different type of pidyon shevuyim. This is where we are not endeavoring to save someone’s physical life, which may not be at risk, but to save their spiritual life. It is accepted halacha that, in such a situation, there is no limit to how much money one is required to spend to save them, and the acts undertaken to save them supersede all the mitzvos of the Torah. This means that if one needs to travel on Shabbos or violate Shabbos in some other way to save a child from falling under non-Jewish influences, one is required to do so, just as saving physical lives supersedes Shabbos (Shulchan Aruch, Orach Chayim 306:14). Therefore, someone who needs to fight a legal custody battle to save a minor from being raised in a non-Jewish environment is required to spend as much money as it takes to save the minor, even when the chances of winning are slim and communities are required to contribute significant sums to help.

In conclusion

The circumstances surrounding any situation of pidyon shevuyim are extremely painful; yet, precisely for this reason, it is the greatest mitzvah of chesed we can perform on behalf of another Jew, whether we are involved in redeeming him physically or spiritually. We should be certain to respond generously whenever we are approached to help in this mitzvah, and see it as a huge opportunity to do Hashem‘s will.

Is a Will the Halachic Way?

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

Should one write a will?

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

SHOULD A JEW WRITE A WILL?

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

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

SOME YERUSHA BASICS

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

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

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

HUSBAND INHERITING

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

DAUGHTERS

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

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

PATRILINEAL RELATIVES

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

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

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

CHOOSING ONE’S HEIRS

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

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

Let us now examine the second question I raised above:

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

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

We can answer this question by analyzing the following incident:

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

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

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

We can derive several principles from this passage:

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

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

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

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

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

 

SHTAR CHATZI ZACHOR

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

CONTEMPORARY PRACTICE

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

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

ABANDONING HEIRS

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

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

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

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

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

TZEDAKAH

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

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

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

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

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

CONCLUSION

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

May I Dangle the Receiver?

Regarding Parshas Balak and the attempts to discredit the Jewish people, we present:

May I Dangle the Receiver?

Or

Hearing is Not Believing, and other Loshon Hora Questions.

Question #1: “Two of my neighbors are in a tiff, and I have a good relationship with both of them. Should I get involved to try to make peace, knowing that both sides will tell me their version of the story?”

Question #2: “Someone told me that one who believes loshon hora (disparaging things about people) does more harm to himself than does the one who spoke the loshon hora! How can this be?”

Question #3: Leora* asked me the following question:

(*All names in this article have been changed.)

“Some of my contacts are not so careful about saying loshon hora. Is it sufficient that I hold the receiver at a distance when they begin to tell me things that I do not want to hear?”

I asked Leora if she could think of other options, and she explained, “It is uncomfortable to tell people that they are violating halacha or to ask them not to gossip. I can create an excuse to end the conversation, such as, ‘the baby is crying’ or some similar emergency. But I would rather not do this, unless I must.”

Leora’s method of being careful to avoid hearing loshon hora, as a halachically observant person must be, is indeed accomplishing its purpose. The question is whether she must do more than this, since the speaker thinks that Leora is still listening. Later, I will explain why this may be problematic, and whether it is sufficient for Leora to simply “dangle the receiver.”

INTRODUCTION

We all know that telling or receiving disparaging information about members of Klal Yisrael is a Torah violation. “We are commanded not to accept loshon hora as true and not to look negatively upon the person about whom the story was told” (Shaarei Teshuvah 3:213). We should bear in mind that loshon hora is prohibited, even if it is absolutely true.

Exactly what is the prohibition of believing or accepting loshon hora? Before we answer this question, we need to define loshon hora. Two types of derogatory information are included in loshon hora:

I. Loshon hora is information that reflects poorly on someone, creating an unjustified bad impression of him or her. For example, relating that someone once violated certain commandments of committed sins disparages his reputation and constitutes loshon hora (Chofeitz Chayim 4:1).

II. Another category of loshon hora is relating information that might harm someone, even though it is not at all derogatory (Rambam, Hilchos Dei’os 7:5). For example, although it is not offensive to say that someone is in debt, there are many situations where this information could cause harm. Similarly, informing a person that someone has a wayward aunt is loshon hora, if this might result in disqualifying the person for a shidduch as a consequence (see Taz, Even Ha’ezer, 50:8).

DEFINING KABBALAS  LOSHON HORA

What should you do if you hear a story that reflects badly on someone?

Before I explain what to do in this situation, we should explain the two types of ill-doing involved when receiving derogatory information.

I. Believing (kabbalas) loshon hora.

II. Hearing loshon hora.

I. BELIEVING LOSHON HORA

The first prohibition against accepting loshon hora is that it results in one’s now having a less favorable impression of a fellow Jew. The fact that the information may be true and he may have transgressed does not allow me to think less of him, and therefore, I may not accept the report of his having sinned as fact (Zera Chayim pg 361, in explanation of opinion of Yad Ha’ketanah). For this reason, if I deny that the story is true, I have not accepted loshon hora, and I did not violate kabbalas loshon hora.

HEARING JUICY GOSSIP

What do I do if I hear some juicy chitchat?

If you hear some gossip, just completely disavow your accepting that the story is true. Remember that most stories that one hears are distorted, so it should take no great effort to simply deny the story’s accuracy.

If you find it difficult to doubt the story completely, re-interpret it in a way that it casts the person in a favorable light. For example, perhaps he/she thought that the act committed was halachically acceptable, or perhaps the reported event was misunderstood or only partially observed (see Be’er Mayim Chayim 6:1). For example, if you heard that someone grabbed a child, perhaps he was pulling the child away from danger. If you heard that someone argued with his father, perhaps he was trying to convince him to take needed medication.

REINTERPRETING THE STORY

Here is an example of how to reinterpret a story: Sharon tells you that Michal treated her rudely. You know that Michal is a quiet person; on top of that, perhaps Michal was distracted or under stress and was therefore even less exuberant than usual. Sharon, whom you know is sensitive, may have misinterpreted Michal’s lack of cheerfulness as rudeness. This interpretation of events will add no negative understanding to what you already know firsthand about both of them. The result is that the reinterpreted story does not place either person in a bad light and is therefore not loshon hora.

In this example, convincing Sharon that Michal was not being rude would be a big mitzvah.

By the way, one may listen to each side of a dispute relate his/her negative impressions of the disputant in order to calm down the quarrel (Chofeitz Chayim, 6:4). Here, too, one may not accept either story as accurate, but one should, in one’s own mind, reinterpret the events, so that they do not reflect badly on the parties involved.

For example, you are aware of a situation in which siblings are in a dispute concerning how to allocate resources to care for their elderly mother. While resolving this conflict, your goal is to appreciate the merit of each side’s approach and convince the other side that, although they might disagree, no one bears any ill will. Even if you cannot convince them of this, you should certainly not accept that either side means any wrong, unless you have solid evidence to the contrary (Shabbos 56a; Hagahos Maimoniyos, Dei’os 7:4).

CALMING A FIGHT

Two of your neighbors are in a big tiff. According to Reuven and Rochel, the upstairs kids are totally undisciplined and boisterous, making a racket that ruins Rochel’s life. Levi and Leah upstairs, however, have a different story. Their kids are extremely well disciplined and obedient, but Rochel is excessively sensitive to noise and cannot tolerate even the normal sliding of a chair under the dinner table. Since you have a good relationship with both parties and may be able to resolve the squabble, you may listen to each side’s complaints about the other, being careful not to believe them. It may, indeed, be true that Rochel is highly sensitive, and it may also be true that Levi and Leah do not control their kids as much as they should. Your job is to make shalom between them, not to accept whichever interpretation of events is true.

One violates the prohibition against accepting loshon hora when one’s impression of any party is disparaged without adequate evidence. In all the above instances, if one’s positive impression of the people involved remains intact, despite all that one heard, one has successfully avoided accepting loshon hora. (There are exceptions when one may accept what one heard as true, but these are beyond the scope of this article.)

With this background, we can now answer Question #1 above:

“Two of my neighbors are in a tiff, and I have a good relationship with both of them. Should I get involved to try to make peace, knowing that both sides will tell me their version of the story?” The answer is that you should get involved, but be careful not to accept anyone’s account as an accurate portrayal of the misdeeds of his/her neighbor.

LOSHON HORA ABOUT A CHILD

There is an interesting halachic difference between these two categories of loshon hora. The first category, relating that someone did something improper, does not apply to the transgressions or faults of a child. Since a minor’s immaturity exempts him from responsibility, it is usually not loshon hora to discuss his misdeeds or capers. Therefore, it is permitted to mention that a child did something mischievous, since this action does not reflect negatively on him (see Chofeitz Chayim 8:3 and Be’er Mayim Chayim ad loc.). [Some poskim contend that, if the child would be embarrassed by someone reporting what he did, or his activity was not considered age-appropriate, then repeating this information is prohibited as loshon hora (Shevilei Chayim 8:4; Shu’t Lechafeitz Bachayim #29). On the other hand, I once read a psak of Rav Chayim Kanievsky shlit’a contending that, as long as the story is not harmful to the child’s interests, there is no loshon hora about his antics since he is not yet required to observe mitzvos.]

However, when the information could ultimately prove harmful to the child, one may not share it (Chofeitz Chayim 8:3). For example, if a school might refuse to accept a child based on his family background, it is loshon hora to provide the school with this information. Similarly, people smile when told that a young man drew on the wall when he was three years old, but they might assume that he is psychologically unhealthy if they hear that he had violent fits of rage at age 12½.

II. HEARING LOSHON HORA

Until now, we discussed some basic halachos of accepting loshon hora. In addition to the prohibition of believing loshon hora, it is also prohibited to hear negative things about someone when there is no need. It is insufficient to simply not believe what one heard; one must avoid hearing it.

WHAT DO I DO IF SOMEONE BEGINS TO GOSSIP?

How far must one go to avoid hearing loshon hora?

The Gemara (Kesubos 5b) homiletically interprets a verse as saying, “there should be pegs [i.e., your fingers, which are shaped like pegs] inside your ears,” meaning, if you sense that someone is about to tell you something inappropriate, you should place your fingers on your ears to avoid hearing it. In other words, one must not only be careful to avoid loshon hora but must even do something unusual if that is the only way to avoid hearing it. Thus if you are among a group of people and one of them begins to say loshon hora, you should leave immediately. If you are on the phone, and the other party begins saying loshon hora, you should quickly say, “An emergency just came up; I’ll have to call you back later,” and abruptly hang up the receiver. Of course, in this last case, you told the whole truth: an emergency did indeed come up, since the other party began saying loshon hora!

What if one is unable to leave and avoid hearing gossip? The Gemara states that one must even place one’s hands over one’s ears to shun loshon hora! Nevertheless, the Chofeitz Chayim (6:5) notes that, although this is the proper thing to do, many people may find it too embarrassing to sit this way and have people mock them. Under these circumstances, the Chofeitz Chayim rules that one should be careful not to believe the stories being told, and be careful not to want to hear them. It is preferable that one demonstrate his disapproval, at least with his facial expression (Chofeitz Chayim, 6:5).

Rabbeinu Yonah implies that one should demonstrate to the speaker that he does not want to hear the loshon hora. Showing a total lack of interest in the conversation discourages the speaker from saying loshon hora.

We now understand Leora’s original question. She does not want to listen to the gossip she is being told. The question is: to what extent must she demonstrate that she does not want to hear loshon hora? Although dangling the receiver prevents Leora from hearing the gossip, it does not demonstrate disapproval to the speaker. Whereas listeners who are visible to the speaker can actually show disinterest, the speaker here may think that she has an avid listener; thus, perhaps Leora should put an active end to the conversation. Even though the speaker is not saying loshon hora to anyone, as there is no listener, the speaker nevertheless thinks that he or she is sinning. Someone who thought he was doing something forbidden but ended up doing something permitted needs forgiveness and atonement (Kiddushin 81b; Nazir 23a). The Gemara’s example of this is someone who wanted to eat something non-kosher, but inadvertently ate kosher. The unsuccessful intent to violate the halacha is itself a Torah prohibition.

As a result, although by dangling the receiver Leora is not hearing loshon hora, she has not prevented the person from thinking that loshon hora has been spoken, either, a sin for which she will require atonement. Therefore I told Leora that it would be better to terminate the conversation by saying, for example, “something just came up, I’ll call you back later!” This prevents the talker from violating any prohibition.

WHO IS WORSE?

After all we have discussed here, I can now explain the Rambam’s statement (Hilchos Dei’os 7:3) that one who believes loshon hora inflicts more self-harm than the speaker! Why should this be?

The reason is that the basic purpose of forbidding loshon hora is to avoid harming a Jew’s reputation. Who is the greater maligner, one who spreads information that he knows to be true, or one who believes an unsubstantiated story? Certainly, the one who accepts an unsubstantiated report that degrades someone denigrates kedushas Yisrael to a greater degree (see Nesiv Chayim 6:3).

Rav Chayim Pinchas Scheinberg zt”l noted that when people repeat the pasuk, mi ha’ish he’chafeitz chayim oheiv yamim lir’os tov, “Who is the man who wants life, loves his days to see only good,” they often pay little attention to the concluding words, liros tov, “to see good,” even though these words are the key to success in this mitzvah. If you view everyone with a good eye, you will be unable to believe derogatory information about them. As Rav Pam once said, “My mother was incapable of saying or accepting loshon hora; not simply because of her yiras shamayim, but because of her appreciation of what Jews are!” May we all reach the level of seeing the good and really appreciating our fellow Jews!

Get Rid of the Stuff!

or

The Vanishing Importer and Other Tales

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

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

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

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

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

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

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

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

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

HOW LONG DOES DOVID REMAIN RESPONSIBLE?

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

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

THE CASE OF THE HAPLESS LADY

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

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

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

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

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

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

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

THE CASE OF THE VANISHING IMPORTER

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE CASE OF THE CARRY-ON LUGGAGE

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

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

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

Do I Have to Tell the Truth?

This week in Eretz Yisrael, we read the parshiyos of Acharei and Kedoshim. Those of our readers who are in chutz la’aretz will be reading the parshiyos of Tazria and Metzora. Since both of these readings have to do with telling the truth, I am presenting:

Do I Have to Tell the Truth?

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

The Gemara (Sanhedrin 103a) teaches that habitual liars will not merit receiving the Shechinah’s Presence. This is derived from the pasuk, “Dover shekarim lo yikon l’neged einai,” “He who speaks lies shall not remain steadfast in My sight” (Tehillim 101:7). A person who gains nothing from his lies and simply has no regard for telling the truth is included in the “kat shakranim” (pack of liars) who will not merit meeting Hashem (Shaarei Teshuvah 3:181; 186) in the World to Come. This category includes people who fail to keep their word (Shaarei Teshuvah 3:183).

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

Therefore the Torah warns, “Midvar sheker tirchak,” “Distance yourself from falsehood,” (Shemos 23:7). Nowhere else does the Torah command that we must “keep distant” from an activity (Sefer HaChinuch #74), which emphasizes how far we must keep from falsehood (Mesilas Yesharim, Chapter 11). Even taking credit for something that one did not do is considered a falsehood (Shaarei Teshuvah 3:184). Similarly, regarding chinuch, we are taught, “Do not promise something to a child without giving it to him, because this teaches him to lie” (Sukkah 46b).

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

WHY MAY I MODIFY THE TRUTH?

Notwithstanding how important it is to tell the truth, there are situations where the Torah allows being imprecise to avoid damage. In other words, despite the importance of being truthful, there are other values which the Torah considers even greater. Although, in general, the Torah does not accept that the end justifies the means, and one is normally not permitted to do something wrong in order to accomplish a positive result, digression from the truth is permitted at times, since the alternative may cause greater harm. For example, it is more important to avoid machlokes, embarrassing someone or hurting his feelings or reputation than it is to tell the entire truth (Bava Metzia 23b with Rif and Tosafos). When placed in a situation in which telling the truth will cause one of these negative results, one must find an alternative solution.

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

WHEN MAY ONE MODIFY THE TRUTH?

There are five situations when modifying the truth is permitted. They are:

1. SHALOM

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

It should be noted that when there is no way to avoid modifying the truth for the sake of shalom, it is not only permitted, but obligatory (Rif, Bava Metzia 23b).

Here are some examples. Reuven refused to lend Shimon money because he felt that Shimon was a credit risk. (One is not required to lend money if there is valid reason to suspect that it will not be repaid. I discuss the details of this halacha in a different article.) Later, Shimon discovered that Reuven loaned money to someone else and asked Reuven why his (Shimon’s) request was turned down. To avoid hurting Shimon’s feelings or creating machlokes, Reuven may tell him that he had no money available to lend at the time. As mentioned above, this approach should be used only as a last resort. It is preferable for Reuven to change the subject or respond to the answer in a different inoffensive way that is not a fabrication.

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

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

2. MODESTY

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

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

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

Similarly, a person who is heavily involved in chesed projects is permitted to describe his full role in order to encourage other people to be involved as well.

Someone who observes a halachic stringency (a chumrah) must try to keep this a secret. One is even permitted to give a false reason for one’s behavior, rather than explain that he observes a chumrah (see Brachos 53b).

For example, let us say that one follows a particular chumrah and he is invited to attend a simcha where one’s chumrah is not observed. Or alternatively, one is invited to a simcha where one has qualms about the kashrus standard maintained by the hechsher, and therefore one has chosen not to eat there. One should try to hide the fact that one is not eating. If someone else notices that one is not eating, one may explain that he attended another simcha earlier and had already eaten. One may say this even if he did not attend a simcha that night and ate at home, since this statement is true (he has attended other simchos previously). This is better than saying that one’s stomach is upset (when it is not), which is an outright untruth. However, if a person feels that the only excuse he can use is that his stomach is upset, he is permitted to do so.

3. TO SAVE SOMEONE FROM EMBARRASSMENT

If necessary, one may modify the truth to save a person from an embarrassing situation or to protect privacy. Therefore, if someone asks me a question that infringes on my privacy, I may give him an untrue answer, if there is no other way to avoid the situation without being offensive (Bava Metzia 23b). It is usually better to give an untrue answer than to point out that the question was inappropriate, which might embarrass the person who is asking.

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

One may modify the truth to save oneself from embarrassment, even if he himself caused the uncomfortable situation. For the same reason, if I am asked a question on a Gemara to which I do not know the answer but should, I may reply that I have not learned that Gemara recently, even if I have (Rambam, Hilchos Aveidah 4:13).

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

It is forbidden to give an untrue answer if it deceives or causes someone financial harm. In financial matters, one must be absolutely truthful. Therefore, it is prohibited to deny having broken someone’s property to avoid paying for it. It is also prohibited to deny breaking it even if one’s goal is to avoid embarrassment, if this might exempt one from paying for the broken item.

It is forbidden to mislead a person. It is therefore prohibited to tell the boss that one is late to work because of a fictitious traffic tie-up.

There is no heter whatsoever to mislead in Beis Din, even if I am convinced that I am in the right and the other side is misrepresenting the facts. (It is permitted to say that the other side is fabricating information.) Money received through a din Torah because of misrepresentation is stolen money (Urim V’Tumim 34:1). Furthermore, a lawyer or to’en rabbani (rabbinic legal adviser) who suggests that someone withhold information in order to “win the case” violates several serious prohibitions.

4. PROTECTING SOMEONE

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

A few examples will clarify what we mean. An unsavory or untrustworthy person asks you where you were a guest last Shabbos, because he wants to invite himself to the same host. Since the results may be detrimental to the potential host, you may tell the “guest” that you ate at home. Early poskim describe the following situation: “If someone is asked how he was received as a guest, he may lie so that the host does not become inundated with more guests than he can afford” (Rashi, Bava Metzia 24a). This does not mean that the guest says that he was ill-treated, which would be lashon hora, but that he should imply that he was treated in a nice, but not spectacular, way (Maharal).

Similarly, if I am asked by someone who is a bad credit risk where he can borrow money, I may tell him that I don’t know, rather than putting potential lenders in an uncomfortable position, or having them lend money to someone when they should not.

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

The Gemara records several instances of this ruling. In Rav Yehudah’s house, they used to cut up vegetables on Yom Kippur afternoon so that they would be ready to serve immediately following the fast. (In pre-refrigeration days, vegetables cut up before Yom Kippur could spoil by the end of the fast.) Rav Yehudah noticed that the vegetables were being cut in a way that violated the halacha, but was uncertain whether he would be obeyed. In order to stop the practice, he told them that he had received a letter from Rabbi Yochanan prohibiting it. Several similar stories are told in the Gemara (Eiruvin 51a; Pesachim 27a; Beitzah 20a; see Magen Avraham, Chapter 156).

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

If I am asked questions that will lead in an undesirable direction, it is permitted to modify the truth in order to politely cut off the questioning. The Gemara tells us the following story: Alexander the Great (whom the Gemara calls “Alexander the Macedonian”) once met the Talmudic scholars of the Negev and asked them several philosophic questions. When he asked them whether light or darkness was created first, they answered that this question has no answer. The Gemara points out that although a pasuk (Bereishis 1:2-3) clearly states that darkness existed before light, the scholars refrained from answering Alexander to forestall his discussing questions that might lead to blasphemy (Gemara Tamid 32a).

Therefore, if you know that someone may turn the conversation toward a topic that you would not wish to discuss, you should change the subject or say that you do not know the answer to the question.

5. EXAGGERATION

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

With a similar line of reasoning, some contemporary poskim justify the widespread practice of printing wedding invitations with a schedule, when everyone knows that the chupah will take place later than the time printed on the invitation. Since it is known that the time on the invitation is earlier than when the simcha will take place, and is intended to give people a sense of approximately when the simcha will actually transpire, this is considered an exaggeration that does not violate the mitzvah of being truthful.

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

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

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

CONCLUSION

As we can see, the halachos of telling the truth are far more involved than most people realize.

Those who tell the truth will receive the Presence of the Shechinah. Many special blessings are bestowed on someone who is meticulous about telling the truth only as required by halacha.

Rav Yaakov Kamenetsky was once asked why he lived so long. (We see in Gemara discussions that this is a topic worthy of discussion.) After contemplating the question for a while, Rav Yaakov reluctantly answered, “Probably, in the merit of the fact that I have never told a lie”.

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

Why is telling the truth a zechus for longevity?

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

May we all merit this reward!

image_print