Category: Bein Adam LeChaveiro

The Talis Exchange and Other Lost Stories

Question #1: THE TALIS EXCHANGE

Dovid asked me the following shaylah: “I placed my talis in shul and, upon returning, discovered that it had been replaced by a similar-looking talis. I left the talis undisturbed, and hung up a sign noting the exchange. Unfortunately, no one responded, and indeed, the owner may not even realize that he has my talis. Should I take his talis home? May I use it, or must I purchase a new one and leave his until he claims it, which may never happen?”

Question #2: THE LAUNDRY EXCHANGE

A laundry returned the correct quantity of items that had been brought in originally; however, the customer, Reuvein, later realized that one sheet was not his. A different customer, Shimon, picked up his items and noticed some things were missing however, the laundry insisted that they had returned whatever he brought. Shimon subsequently discovered that Reuvein had one of Shimon’s missing sheets, and he clearly identified his missing sheet. Reuvein claimed that the sheet was a replacement for his sheet that was lost, and that he is, therefore, not required to return it. Must he return the sheet?

Question #3: THE WEDDING EXCHANGE

Someone attended a wedding with one coat and, mistakenly, returned with a different one. May he use this coat and assume that the other party is agreeable to the exchange? Does this depend on which coat is more valuable?

Question #4: AN UMBRELLA ON THE SUBWAY

On the subway you see a frum, unfamiliar person rush off the car, forgetting her umbrella. May you keep or use the umbrella, knowing that the owner will soon realize her loss?

SHO’EL SHELO MIDAAS

The concern in all these situations is that one is using someone else’s property without permission. This is called sho’el shelo midaas, borrowing without the owner’s knowledge, which is usually halachically equivalent to stealing (Bava Metzia 41a; 43b)! In general, one may not use an item until one receives permission from the owner.

CAN’T I JUST ACCEPT THE TRADE OF THE TWO ITEMS?

Since the loser is wearing my talis, why can’t I simply assume that we have traded taleisim? I’ll keep his talis, and allow him to keep mine. (Although the correct Hebrew plural is taliyos or talisos, I will use the colloquial taleisim.)

Although Dovid may grant permission to the other person to use his talis, can he assume that he has permission to use the other person’s talis? Let us examine a relevant discussion:

EXCHANGED ITEMS AT THE TAILOR

Someone whose clothes were replaced with someone else’s at a tailor may use what he received, until his garment is returned. However, if the exchange transpired at a shiva house or a simcha, he may not use the garment he received, but must hold it until the owner claims his property. What is the difference between the two cases? Rav answered: “I was sitting with my uncle, and he explained to me, ‘Sometimes people tell the tailor to sell the item for them’” (Bava Basra 46a).

We see from this case that if I exchanged a coat with someone else at a simcha or at a shiva, I may not wear the coat, since I am “borrowing” it without permission. The fact that the other person is using my garment, knowingly or unknowingly, does not permit me to use his. Even if the result is that I must purchase a replacement, I may have to do so, even though a perfectly nice garment is sitting unused in my closet, since the garment is not mine.

However, if the exchange happened in a tailor shop, I may use the replacement.

WHAT IS THE DIFFERENCE BETWEEN A TAILOR AND A WEDDING?

Why is the tailor shop different? The Gemara presents a rather cryptic answer to this question: “Sometimes people tell the tailor to sell the item for them.” What does this mean?

The early poskim explain that when the exchange transpired in a repair shop, one may assume that the following situation occurred:

Someone brought a garment to the tailor, asking him to sell it for him. The tailor erred and sold your garment instead, and then paid the money received (minus his sales commission) to the original owner of that garment. When you came to claim your garment, the tailor realized his error, and also realized that he must compensate you for your item, since he probably has no way to retrieve it. However, he had no cash available, so he gave you a replacement instead – the garment that he was supposed to sell (Tur and Sma, Choshen Mishpat 136:1). Since the tailor already paid the original owner for his garment, he now owns it and is fully authorized to give it to you as a replacement for your lost garment. This case is referred to as nischalfu keilim beveis ha’uman (items that were exchanged in a craftsman’s shop).

The next passage in the Gemara’s discussion is now almost self-explanatory:

Rav Chiya, the son of Rav Nachman, explained that the ruling of nischalfu keilim beveis ha’uman applies only if the repairman himself gave you the different garment, but not if his wife or children gave them to you.

Obviously, if the tailor’s wife or child gave you the wrong garment, you cannot assume that this was because of the tailor’s earlier error. It is more likely that they simply mistakenly gave you the wrong garment, which needs to be returned.

Similarly, the following concluding passage of this particular discussion is clear.

Rav Chiya, the son of Rav Nachman, continued: The halacha of nischalfu keilim beveis ha’uman applies only if the repairman told you, “Here is a garment.” However, if he said “Here is your garment,” we assume that he erred, since he is not giving you your garment.

If the tailor had sold your garment in error and is now sheepishly providing you with a replacement, he would not tell you, here is your garment. Therefore, he must have mistakenly given you the wrong garment, and you must return it.

We see clearly that the ruling of nischalfu keilim beveis ha’uman applies only when I can assume that a tailor or other repairman inadvertently sold or disposed of my item and can legitimately offer me the replacement. Otherwise, the situation is comparable to the case of garments exchanged at a simcha, where one may not use the received garment without permission.

Thus, referring back to question #3 above: Someone attended a wedding with one coat and, mistakenly, returned with a different one. May he use this coat and assume that the other party is agreeable to the exchange?

The answer is that we have no basis with which to permit you to use the other person’s coat.

At this point we can analyze Question #2.

A laundry returned to Reuvein the same number of items he had brought them; however, one sheet is not his. Shimon claims to be missing some items, which the laundry denies. Shimon proves that the sheet is his, yet Reuvein claims that the laundry gave it to him as a replacement for what they lost, and that he is therefore not required to return it. Must he return the sheet?

One of the interesting and surprising aspects of this shaylah is that this actual case was asked over 600 years ago!!

Answer: Shimon did not give the sheet to the laundry for them to sell. Therefore, the laundry gave Shimon’s garment to Reuvein without authorization, and he must return it to its rightful owner, even if Reuvein has no other way of being compensated for his loss (Terumas HaDeshen #319). The reason for this is obvious: Laundries do not usually act as agents to sell people’s clothing, and in any case, Shimon clearly denies ever making any such arrangement.

SO, WHAT IS THE STATUS OF THE TALIS?

Let us return to our first original question. Someone took Dovid’s talis and left behind a similar-looking one. The owner has not responded to any of his notices, and Dovid suspects that he does not even realize that an exchange transpired.

Based on the above discussion, it would seem that Dovid has no choice but to treat the talis as unusable and to consider purchasing a new one. However, there is another Gemara discussion that affects our case, so don’t run to the store just yet. Let us examine the following passage:

Shmuel said, “Someone who finds tefillin in the street should estimate their worth and may wear them himself” (Bava Metzia 29b). If the finder has no need for a pair of tefillin, he may sell them and put the money aside for the owner.  The Rosh (Bava Metzia 2:16) rules that the finder may even use the money in the interim.

Shmuel’s statement presents an obvious question:

His ruling seems to contradict the principle that borrowing an item without permission is tantamount to theft. Why can the finder wear (or sell) these tefillin? As we are all aware, one of the Torah’s mitzvos is to return a lost object to its owner (Devorim 22:1-3; Shemos 23:4). How does the Gemara permit the tefillin finder to wear them and not return them to the owner? And, even if we correctly assume that “estimating their worth” means that he is responsible to return the value of the tefillin to their owner, if and when he locates him, why is this case different from the normal obligation to return the actual lost item itself to its owner? Obviously, there must be something about tefillin that permits the finder to keep them and simply repay their estimated value.

Some poskim contend that this ruling applies only to a mitzvah object, such as tefillin, where the owner wants someone else to use them, rather than have them sit unused (Shach 267:16, in explanation of the Rambam, Hilchos Gezeilah 13:14). However, most authorities imply that this ruling applies also to non-mitzvah items, in cases where the owner is satisfied with simply receiving compensation equal to their value (see Tur and Shulchan Aruch, Choshen Mishpat 267:21). The basis for this second opinion is the continuation of the Gemara’s discussion:

TEFILLIN VERSUS SEFORIM

The Gemara asks why someone finding tefillin may wear them, since this ruling appears to contradict a statement that someone who finds books may not use them, but must hold them for the owner. Why are tefillin different from seforim? The Gemara answers that a person wants to get his own books back, whereas he can always purchase new tefillin. This implies that people have no strong attachment to any specific pair of tefillin, whereas they have developed a bond with their own seforim, since they are difficult to replace. From this, one could infer that there is a difference between finding an item that the owner does not mind replacing and finding an item that he does not want to replace, and this would seem to have ramifications for someone who finds a talis, an umbrella, or any other easily replaced item.

Although this seems to be the obvious point of this Gemara, elsewhere the Gemara appears to rule otherwise. If someone found coins placed in a deliberate fashion, the finder may not spend this money and replace it with other coins, but must hold these very specific coins and return them to their owner (Bava Metzia 29b). Obviously, the owner is not concerned about receiving these specific coins, and would be very satisfied with receiving replacement money. Why is it not sufficient to simply return coins of the same value? We see that returning replacement value is not satisfactory, even when it makes no difference to the owner if the particular coins are returned to him, or if he is given others of equal value in their stead.

The answer is that in the case of lost tefillin, two factors must be met before one may use them. In addition to the point mentioned above, a second factor is that a finder who chooses not to use the tefillin but give them back becomes a guardian, who is responsible to care for them. He must then occasionally air them out and ensure that they are kept dry (Rosh, Bava Metzia 2:18). (When a person wears tefillin daily, he automatically airs them out at the same time, which benefits them.) Thus, the owner of the tefillin actually benefits more if the finder sets aside money, since there is now no risk of damage to the tefillin. This is qualitatively different from finding lost coins, which require no care other than storing them in a secure place.

We can therefore extract the following principles:

If taking care of a lost item requires some effort, and also, the owner does not care whether or not the original item is returned to him, the finder may estimate the value of the lost item in order to, eventually, repay this amount. Otherwise, the finder should hold the lost item and await the owner’s return. (There is another case mentioned when the finder sells the lost item for a similar reason, but that case is beyond the scope of this article.)

Having established the rule, let us see which cases fit the rule, and which do not. Clothing does not usually fit this rule, since people are interested in getting back the same garment that they lost. A person is comfortable with his own clothes, and often purchasing something to one’s taste is not a simple matter. Therefore, someone finding a lost garment may not sell it and hold the money for the owner.

ARE UMBRELLAS AND TALEISIM LIKE TEFILLIN?

On the other hand, the average person does not develop a personal attachment to his umbrella and is perfectly satisfied to have a usable replacement umbrella. Similarly, a man is usually not that concerned about his specific talis and is satisfied with a replacement. In addition, both of these items are comparable to tefillin and not to coins, since, if they are never used, they become musty. (Normal use of an umbrella airs it out.) Therefore, someone who locates a lost umbrella may use it after estimating its value.

We are now prepared to answer Question #1 and also Question #4.

First, Question #4: On the subway you see a frum, but unfamiliar person rush off the car, forgetting her umbrella. May you keep or use the umbrella, knowing that the owner will soon realize her loss?

Clearly, she will despair of recovering her umbrella as soon as she realizes her loss. However, one may not pick up the umbrella until after she has realized her loss, and this may happen only some time after she leaves the subway. If you pick it up soon after its having been left, the umbrella is still the property of the person who lost it, and the one picking it up is responsible to return it.

However, a person is usually not concerned about owning his specific umbrella, but is satisfied with money to purchase a replacement. (If indeed, the umbrella that was lost appears to be a designer umbrella, the halacha will be different.) Therefore, even though the owner still owned the umbrella when you found it, you may claim the umbrella as your own, and simply make a mental note how much it is worth. Should you ever meet its owner, and should she prove that the umbrella was hers, you would have to compensate her for it.

And now, our analysis of the opening question, The Talis Exchange

Dovid had placed his talis in shul, and it was replaced by a similar-looking talis. His attempts to alert the owner were unsuccessful, and indeed, the owner may not even notice the exchange. May he use the other talis or must he purchase a new one?

I believe that most men do not feel attached to their particular taleisim, and this case is, therefore, comparable to the tefillin case of the Gemara. Assuming this to be true, someone who finds a lost talis may estimate its value and then either wear it or sell it. Either way, he should record the value of the talis and intend to return it to the owner, should he ever come back for it. (When I first published this article, I received several responses disagreeing with me, contending that most people are more possessive of their taleisim than I felt they were.)

PECULIARITIES

The careful reader may have noted that our discussion is heading to an unusual conclusion. Although the Gemara rules that the owner is less concerned about retrieving his tefillin than retrieving his seforim, today, the opposite is generally true – an owner is usually not concerned about getting back the same sefer, since one can usually purchase it again in a bookstore. (However, the Gemara’s halacha would remain true if he had written notes in the sefer, or for any reason that would give this particular sefer special meaning.)

On the other hand, many people own hand-picked tefillin and want their specific pair back (Minchas Elazar 4:9; see Pischei Choshen, Aveidah 6:ftn23). They may have purchased tefillin whose parshiyos were written by a specific sofer who no longer writes, or made by a specific batim macher who has a long waiting list. Thus, after analyzing the principles of the above-mentioned Gemara, the Minchas Elazar decides the opposite of its conclusion and rules that the original owner gets his tefillin back.

However, an average person is usually satisfied with a replacement pair of tefillin, provided that they are absolutely kosher and of equal halachic quality. Thus, although the principles of the Gemara are infinite, the specific cases that match them change with the specific society in which they occur.

Returning lost items is a beautiful and important mitzvah. As we now see, the details of observing this mitzvah are often very complicated – and can vary from item to item.

When There Is a Will, the Relatives May Complain

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

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

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

I. Who is the heir?

II. What is the halachic status of a will?

III. May one file the lawsuit in secular court?

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

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

I. Who is the heir?

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

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

Why Uncle Jack?

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

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

II. Is the will valid?

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

How can someone leave his property to his adopted child?

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

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

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

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

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

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

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

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

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

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

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

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

Harsha’ah

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

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

“Dear Rav Kaganoff,

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

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

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

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

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

Another consideration: Chalitzah

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

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

I quote my letter to Yonasan:

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

Yonasan replied:

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

To which I replied:

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

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

Yonasan responded to my inquiry:

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

To which I responded,

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

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

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

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

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

[1] Megillah 13a; Sanhedrin 19b

[2] Mishnah Kesubos 100b

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

[4] Gittin 88b

[5] Ramban, beginning of Parshas Mishpatim

[6] Midrash Tanchuma, Mishpatim #3

[7] Hilchos Sanhedrin 26:7

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

[9] Mishnah Berurah 53:82

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

[11] Shulchan Aruch, Choshen Mishpat 26:2

[12] Mishnah Yevamos 20a

[13] Mishnah Yevamos 20a

Halachic History of Copyright

One of the curses recorded in this week’s parsha is against someone who moves the border. In halachic terms, hasagas gevul, moving borders also includes infringes on someone’s property rights.

Does a publisher have rights protecting him so that he has the opportunity to recoup his investment? Assuming that such rights exist, do they apply in all cases, or only if it is a new publication? For how long are his rights protected?

Does the Torah have a concept of intellectual property rights, meaning that someone who creates or invents an item is owner of his invention?

WHAT RIGHTS DOES THE PUBLISHER HAVE?

One of the earliest published responsa on this subject deals with a very interesting sixteenth century case. One of the gedolei Yisrael of the time, the Maharam of Padua, Italy, entered a partnership with a non-Jewish publisher in Venice to produce a new edition of Rambam. Maharam invested a huge amount of time checking and correcting the text for this edition, included notes of his own, and apparently also invested significant amounts of his own money in the undertaking. A competing publisher, also a non-Jew, produced an edition of Rambam (without Maharam’s corrections and notes) at a greatly reduced price, apparently out of spite that Maharam had engaged his competitor. It appears that the second publisher might have been selling the set of Rambam at a loss with the intent to ruin the Maharam financially. The halachic question was whether an individual may purchase the less expensive edition of the second publisher.

The shaylah was referred to the Rama for decision, who ruled that the second publisher’s actions constitute unfair trade practices. Rama prohibited purchasing or selling the competing edition, until the Maharam’s edition was sold out. Realizing that the non-Jewish publisher would not obey his ruling, Rama reinforced his ruling by placing a cherem (decree of excommunication) on anyone selling, buying or abetting the sale of the competing edition (Shu”t Rama #10). This was an effective way of guaranteeing that Jews did not purchase the less expensive (but inferior) edition.

The Rama’s ruling established a precedent. Subsequent to Rama’s ruling, it became common practice for publishers to include in their works a cherem (plural: charamim) from a well-known posek banning the publishing of the same sefer, usually for a period of six to twenty-five years. As a matter of fact, these charamim were the main reason why publishers sought haskamos when they published seforim. The purpose of the haskamah was that they included charamim, to make it financially worthwhile for the publisher to invest the resources necessary to produce the sefer. Thus, these charamim encouraged publishing more seforim and the spread of Torah learning.

Generally, these charamim protecting the publisher’s rights were accepted and obeyed. However, in the early nineteenth century, an interesting dispute arose between the Chasam Sofer, the Rav of Pressburg, and Rav Mordechai Benet, the Rav of Nikolsburg, germane to the production of the famous Roedelheim machzorim. Two competing editions of these machzorim were produced, the first by Wolf Heidenheim, who had invested much time and money gathering and comparing the texts in old editions and manuscripts. A Jewish publishing house located in a different city subsequently published a competing edition. Prior to Heidenheim’s issuing the machzorim, several prominent rabbonim had issued a cherem banning other publishers from competing.

The Chasam Sofer prohibited the second publisher from selling his machzorim and similarly banned people from purchasing them (Shu”t Chasam Sofer, Choshen Mishpat #41, #79). In his opinion, this case is halachically comparable to the edition of Rambam produced by the Maharam Padua.

Rav Benet disagreed, contending that there were several key differences between the cases. In his opinion, it is unnecessary to guarantee publication of machzorim by issuing charamim. Machzorim are a common item, and publishers know that they will profit from producing them. Thus, the entire purpose for which these charamim were created, to guarantee the production of seforim, does not apply. Furthermore, since non-Jewish publishers will certainly produce machzorim, issuing a cherem against competition will benefit the non-Jewish publishers, who will be faced with less competition, more than it will benefit a Jewish publisher, such as Wolf Heidenheim. In addition, Heidenheim’s first edition had already sold out, and charamim traditionally ended when the edition was sold out, assuming that one edition was sufficient to guarantee a publisher sufficient profit to make it worth his while. In addition, Rav Benet questioned whether the system of charamim was still appropriate, once the government had established its own rules and laws of copyright infringement (Shu”t Parashas Mordechai, Choshen Mishpat #7, 8).

The Chasam Sofer countered that since Heidenheim had invested time and money in checking and correcting texts, his business interest should be protected to a greater degree, and that Heidenheim should qualify under a special halachic dispensation allowed for those guaranteeing that Torah texts are accurate (see Kesubos 106a). As a result, the Chasam Sofer contended that Heidenheim’s monopoly should be allowed for the entire twenty-five years decreed in the original cherem, even after he had sold out his first edition.

DOES HALACHA RECOGNIZE INTELLECTUAL PROPERTY AS OWNERSHIP?

This shaylah came to the forefront in the middle of the nineteenth century, also as a result of a din torah. Around 1850, a printer named Yosef Hirsch Balaban published a large-size edition of Shulchan Aruch with major commentaries, accompanied for the first time by the anthologized commentary, Pischei Tshuvah. Balaban was sued in beis din by a printer named Avraham Yosef Madfis who claimed to have purchased exclusive rights to Pischei Tshuvah from its author. (I am uncertain whether “Madfis” was indeed his family name, or whether this referred to his profession.) At the time, Pischei Tshuvah had been printed only once, in a small-size edition, including only the Shulchan Aruch and one other commentary, the Be’er Heiteiv. Madfis claimed that Balaban had violated his (Madfis’s) exclusive ownership rights to Pischei Tshuvah.

The Rav who presided over the din torah, Rav Shmuel Valdberg of Zalkava, ruled in favor of Balaban for the following reason. The original edition of Pischei Tshuvah did not include any statement placing a cherem against someone printing a competing edition. Rav Valdberg contended that this voided any copyright on Pischei Tshuvah. Furthermore, Rav Valdberg included two more reasons to sustain his ruling. One, the original edition of Pischei Tshuvah was no longer available. Thus, even had a cherem banned a competing edition, it would have already expired once the first edition had sold out. Second, even if the first edition was still available for sale, Balaban’s reproducing Pischei Tshuvah as part of a multi-volume set of Shulchan Aruch was not competition for the original edition, where Pischei Tshuvah had been published as a small, presumably inexpensive sefer. Rav Valdberg reasoned that no one interested in purchasing Pischei Tshuvah would likely purchase Balaban’s edition of Shulchan Aruch just for that purpose; instead he would buy the small edition (assuming it was available). Thus, he did not consider Balaban’s edition to be unfair competition for those looking to purchase Pischei Tshuvah.

According to Rav Valdberg’s analysis, the author of Pischei Tshuvah has no greater ownership to his work than someone publishing a different person’s work. His latter two arguments, that the first edition was already sold out and therefore the cherem expired, and that the multi-volume set does not compete with the one volume edition, would both be preempted if we assume that the author retains ownership over his work. Thus, Rav Valdberg did not believe that halacha recognizes intellectual property rights.

The Sho’eil uMeishiv (1:44) took issue with this point. In a letter addressed to Rav Valdberg, which he subsequently published in his own responsa, he contended that the author of a work is its owner. Thus, Pischei Tshuvah retains his rights as author/owner whether or not a cherem was declared against competition. A cherem is to guarantee a publisher enough time to recoup his investment. An author is an owner, not an investor, and maintains ownership over the item produced, which he is entitled to sell, regulate, or contract. This is called intellectual property rights.

Upon reading the Sho’eil uMeishiv’s ruling, Rav Yitzchok Shmelkes, wrote him that he disagreed with Sho’eil uMeishiv’s reasoning (Shu”t Beis Yitzchok, Yoreh Deah 2:75). Beis Yitzchok contends that halacha does not recognize intellectual property rights as inherent ownership. In Beis Yitzchok’s opinion, the author has a right of ownership, but only because it is accepted by government regulation, which is termed dina dimalchusa dina, literally, the law of the government is binding. Although halacha does not usually accept non-Jewish legal regulations, a civil law established for the wellbeing of society is usually accepted. Since intellectual property rights encourage initiative and invention that are in society’s best interests, halacha accepts these ownership rights to the extent that they are recognized by civil law.

There are several key differences between the position of Sho’eil uMeishiv and that of Beis Yitzchok. According to Sho’eil uMeishiv, the ownership of an author exists forever, just as any other property that he owns. Upon his passing, they are inherited by his heirs, just like his other property. However, in Beis Yitzchok’s opinion, the ownership rights extend only according to what is established by government regulation and expire after a number of years. Moreover, in most countries, a copyright is valid only if registered, and it must also be indicated in the published work. Presumably this was not true in the Beis Yitzchok’s place and time, since he applied civil copyright law to Pischei Tshuvah, even though the author had not indicated any copyright in the sefer.

Thus, whether halacha recognizes intellectual property ownership is disputed.

Some authorities rally evidence that the Chofetz Chayim agreed with the Sho’eil uMeishiv’s position. The Chofetz Chayim left specific instructions detailing who owns the publishing rights to his seforim after his passing. He instructed that his seforim on loshon hora could be freely republished, and that Mishnah Berurah may be published by anyone, provided that 4% of its volumes printed are donated to shullen and batei medrash. However, he stipulated that most of his seforim could not be republished without permission of his family members, and that the proceeds from such publication should succor his widow for the rest of her life. Chofetz Chayim’s instructions imply that he considered his ownership to be in perpetuity. Furthermore, Chofetz Chayim did not publish any words of cherem or copyright inside his seforim. Thus, he seems to have presumed ownership over future editions of seforim on the basis of intellectual property (Shu”t Minchas Yitzchok 9:153), although it is possible that he based it on dina dimalchusa dina, following the opinion of Beis Yitzchok.

If one reads the haskamos on sefarim, published from the time of the Rama until the close of the nineteenth century, one notices that this dispute between the Sho’eil uMeishiv and the Beis Yitzchok seems to have been fairly widespread. For example, when the Chavos Yair published his own responsa, all the haskamos allow his copyright rights against someone else publishing his own responsa for a limited period of time. According to the Sho’eil uMeishiv’s opinion, the Chavos Yair should have owned these rights forever!

On the other hand, when a new edition of Shu”t Rivash was published in the 1870’s, it included a very extensive index that included all the places that the Rivash is quoted by the Beis Yosef and other halachic authorities. The edition contained three haskamos: from the Netziv, from Rav Yitzchak Elchanan Spector and from the Malbim. All three include a cherem against anyone publishing the Shu”t Rivash for six years, but explicitly mention that the ownership of the newly created index is the property of the publisher forever and may not be reproduced without his permission. They clearly are recognizing intellectual property rights in halacha.

Thus, we see interesting historical precedent both in favor of and in opposition to whether halacha recognizes intellectual property. Some of these factors are included when debating the role of copyright violation in halacha today.

May I Keep My Skeletons in the Closet?

This week’s parsha closes by mentioning that the daughters of Tzelafchad succeeded in
finding husbands. I am certain that they had no secrets to disturb their shidduchin from
happening, but what would happen if they did? Would they have been required to “spill
the beans,” or could they have kept these dark secrets to themselves? In this article we
will discuss the ramifications of this question, specifically:
1. What one must tell and what one is not required to tell.

2. When (at what stage in the developing relationship) is one required to inform about the
issue?

3. Whom one must tell.

I was asked this question recently:

Mrs. Weiss (not her real name) called me to discuss the following sensitive matter:
“I was once treated successfully for a serious disease. My grandmother had the same
illness, yet lived in good health to a ripe old age. The doctors feel that my daughter
should be checked regularly from a fairly young age for this same disease. She is now
entering the shidduchim parsha. Must I reveal this family information to shadchanim
(matchmakers) and/or to the families of potential chassanim, and, if so, at what
point must I disclose this information? I am truly concerned that this could seriously
complicate her shidduch possibilities.”

Although this situation may be atypical, we all have medical, personal, and/or
genealogical issues that we wish to keep private. What information must we reveal while
arranging shidduchim for our children (or for ourselves)? And at what point must we
disclose it?

The prohibitions of Geneivas daas, misleading someone, and Onaah, fraud, apply equally
to shidduchin. However, there are many complicating factors involved in shidduchin, and
therefore we need to explain:

ONAAH — FRAUD

Misrepresenting a product or service in order to make a sale is a form of cheating, such
as painting an item to hide a defect. A modern instance of onaah is insider trading,
which means that someone purchases or sells a stock or commodity because he/she has
information, either positive or negative, about the stock, that is unavailable to the public.
This is dishonest because the other transacting party is unaware of this information which
affects the value of the item they are buying or selling.

In shidduchim the same rule is true: Subject to some exceptions, which I will explain
shortly, one must notify the other party of information that might concern them. Hoping

that no one takes this personally, I will refer to this type of negative information as
an “imperfection.” For example, Mrs. Weiss is inquiring whether the family medical
history is an imperfection that must be revealed.

MEKACH TA’US – INVALIDATING THE MARRIAGE

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

Here are a few interesting examples:

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

OTHER SERIOUS IMPERFECTIONS

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

CAN’T SMELL

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

Withholding information concerning an inability to have children is certainly a mekach
ta’us. In this last situation, a physician who is aware that his patient cannot have children
is required to reveal this information to the other side, even though this violates patient
confidentiality (Shu”t Tzitz Eliezer 16:4). In the situation above, the physician was aware
that the young woman had no uterus, and therefore it was physically impossible for her
to conceive a child. He was also aware that they were hiding this information from the
prospective groom. The same would be true should the male be unable to have children,
since the assumption is that people of childbearing age marry intending to bear offspring
from the marriage.

WHAT MAY ONE HIDE?

What type of information may one withhold?
There are two categories of negative information, imperfections, that one does not need
to reveal. They are information that the other party could find out on one’s own, and
information that is not significant.

KNOWN INFORMATION

A seller is not required to disclose an imperfection in his product that the buyer could
discover on his own. Furthermore, as long as the buyer could have noticed something that
may arouse attention, there is no geneivas daas and no onaah in making the sale (Shu”t
Igros Moshe, Yoreh Deah 1:31).

For example, if someone is selling a house with a drop ceiling, he is not required to notify
the buyer that there was damage above the ceiling, since a drop ceiling in a residence
should arouse attention. Similarly, if the entire neighborhood is susceptible to flooding
basements, the seller does not need to mention that his basement has a severe water
problem. If the buyer asks directly, the seller must answer honestly.

Again, in regard to stock trading: The seller is not required to mention that in the last
recorded quarter the company reported a sharp decline in profits since this information is
readily available to the buyer.

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

INSIGNIFICANT INFORMATION

A second category of information that need not be revealed includes factors that are
insignificant to the buyer. One is not required to provide an in-depth list of every
shortcoming the merchandise has. Similarly, shidduchim do not require revealing
every possible medical or yichus issue. The Chofetz Chaim (Be’er Mayim Chaim #8 at
end of Hilchos Rechilus) distinguishes between a medical issue one must reveal and
a “weakness,” which one does not. Thus, someone need not reveal minor ailments that
would not disturb the average person.

Of course, it is sometimes difficult to define what constitutes a “minor ailment” and what
constitutes a serious one, and specific rabbinic guidance is usually warranted when one is
in doubt. However, I will present one or two examples of each.

Although I know rabbonim who disagree with this position, I feel that juvenile diabetes
is a malady that must be mentioned, whereas non-life threatening hay fever and similar
allergies may be ignored. On the other hand, an allergy that is so serious that it affects

one’s lifestyle and activities in a major way must be mentioned. My usual litmus test is: If
the issue is significant enough that one might want to hide it, it is usually something that
one should tell.

WHEN TO TELL?

At what point must one reveal a significant “imperfection”?

In most instances, there is no requirement to notify the other party or a shadchan of any
of these imperfections at the time a shidduch is suggested. The Sefer Chassidim, quoted
above, does not mention at what point one must notify the other party of the shortcoming.
Contemporary poskim usually contend that one should reveal this information after the
couple has met a few times; about the time the relationship is beginning to get serious,
but after the two parties have become acquainted and see their overall qualities as an
individual. This is the approach I personally advise in all such situations. There is no
requirement for the parties to tell a shadchan, and in some situations it is prohibited to do
so.

My daughter has a close friend who unfortunately has celiac. She had been told by her
rav that she should reveal this information on the third date. (Let me note that this exact
detail will vary tremendously on the dating approach used in the couple’s circles.) She
was so nervous and concerned how the guy would react, that she was unable to bring
herself to mention it then. Finally, on the fourth date, she was able to get the words out,
to which he reacted nonchalantly, “Oh, so does my brother.” This story has a very happy
ending, since her mother-in-law anyway prepares food that is appropriate.

REJECTION
However, if one knows that the other party will reject the shidduch because of this
imperfection, I would recommend forgoing this shidduch from the outset. For example,
if one knows that a particular family prides itself on a pure pedigree, don’t pursue a
shidduch with them if you know they will ultimately reject it when they discover that
your great-uncle was not observant.

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

“I was once treated successfully for a serious disease. My grandmother had the same
illness, yet lived in good health to a ripe old age. The doctors feel that my daughter
should be checked regularly from a fairly young age for this same disease. She is now
entering the shidduchim parsha. Must I reveal this family information to shadchanim
and/or to the families of potential chassanim, and, if so, at what point must I disclose
this information? I am truly concerned that this could seriously complicate her shidduch
possibilities.”

Most poskim with whom I discussed this shaylah contended that one should reveal
this information to the other side after the couple has gotten to know one another
and is interested in pursuing the relationship. One rov disagreed, contending that

since the problem can be caught early and treated successfully, one need not divulge
this information at all. All opinions agree that one has absolutely no obligation to
mention this information to a shadchan or to anyone who has no personal need for this
information.

Obviously, I cannot possibly discuss the various permutations of these shaylos in an
article, but simply can present the issues. Wishing all much happiness in their marriages
and their children’s marriages!

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

 

Question #1: MYSTERY IN THE COATROOM

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

Question #2: ON THE STREETS OF NEW YORK

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

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

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

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

THE BASIC RULES

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

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

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

AN IMPORTANT EXCEPTION

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

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

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

How do we rule?

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

Here is a practical case:

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

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

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

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

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

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

SIMAN – AN IDENTIFYING MARK

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

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

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

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

DERECH HINUACH

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

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

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

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

KNOWLEDGE PROVES OWNERSHIP

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

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

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

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

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

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

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

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

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

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

May Suzie keep the lost items?

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

A REVIEW OF THE BASIC RULES:

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

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

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

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

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

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

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

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

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

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

and a negative mitzvah (lo sa’aseh) to guarantee that a worker is paid before sunset of the day that he performed his job. Thus, someone who pays his worker on time fulfills a positive mitzvah, whereas if he neglects to pay him on time and the worker demands payment, he has transgressed a lo sa’aseh.

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

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

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

WHAT TYPE OF WORK IS INCLUDED IN THIS MITZVAH?

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

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

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

EXAMPLE:

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

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

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

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

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

RENTALS

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

EXAMPLE:

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

SMALL WAGES AND SMALL EMPLOYEES

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

EXAMPLE:

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

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

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

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

EXAMPLE:

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

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

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

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

WHAT IS THE HALACHA IF AN AGENT HIRED THE WORKERS?

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

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

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

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

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

EXAMPLE:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MAY THE OWNER OFFER EXTRA COMPENSATION FOR DELAYED PAYMENT?

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

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

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

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

SUGGESTION:

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

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

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

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

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

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

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

Question #3: There is always such a racket upstairs! I was certain that their kids are roller-blading or playing basketball right over my head, but their mother insists that they are just normal, active children. What may I do to improve the situation?

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

BACKGROUND TO THE SHAYLOS

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

AN EXCEPTION

There is an exception to this general principle a person can object to his neighbor opening a store in his building. Why is a store different from other livelihoods? Because it generates a lot of foot traffic; therefore the neighbor has the halachic right to object to the noise and bustle.

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

The reason is that although the discomfort generated by the store may sometimes be even less than that the heat of the oven, the Mishnah forbade opening the store because its proprietor could sell his wares in the town’s marketplace, which was the primary business location in town. Thus, there was no need to sell merchandise in one’s house, and insisting that a neighbor sell his wares elsewhere did not jeopardize his livelihood. Manufacturing, on the other hand, was generally done in people’s homes (Shu’t Chasam Sofer #92).

What is the halacha when two permissible domestic uses preclude one another? For example, Mr. Upstairs wants to use his house as a warehouse to store grain, whereas Mr. Downstairs wants to use his house as a bakery or a dyeing shop. Both of these uses are considered “typical domestic use,” since both use one’s domicile as a means of earning one’s livelihood. However, the two uses are mutually exclusive, since the heat from the bakery or dye shop will ruin the grain. Therefore, if Mr. Downstairs uses his apartment as a bakery, it will prevent Mr. Upstairs from storing grain in his house. May Mr. Upstairs prevent his neighbor from baking or not?

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

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

In earlier times of cottage industries, most people making a living from crafts, small manufacturing, or trading used their house as their base of operation. Thus, using your house as a bakery, factory, or warehouse was normal household usage, provided one retailed the wares somewhere else.

DO LOCAL LAW AND CUSTOM AFFECT THESE HALACHOS?

Indeed they do. In general, halachos that involve financial arrangements between two parties are governed by the prevalent local practice. This is called, hakol kiminhag ha’medinah, “everything goes according to local custom.” The rationale of this is that the two parties involved assume that this is what governs their relationships. Therefore people buy or rent a house or apartment assuming that the neighbors will follow the accepted local norm. This is the guiding principle governing neighbor relations.

Therefore, today one may not open a bakery or dyeing operation in a residential building since it violates common practice.

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

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

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

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

THE DRUMMER

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

Is drumming in your house an accepted practice? Can one claim that this is a permitted hobby in a residential neighborhood? Can one claim as an additional reason that it is necessary for one’s livelihood?

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

Thus, if Grandma moved into a retirement community where one would assume that everything will be nice and quiet, she can certainly insist that her neighbor drum elsewhere. However, in the absence of local custom, what would halacha dictate?

WHAT IS THE HALACHA IF THERE IS NO LOCAL CUSTOM?

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

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

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

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

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

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

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

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

NOISY NEIGHBORS

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

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

Similarly, question #3 also hinges on whether the neighbor’s noise is abnormal, regardless of who lives next door. If the neighbor is a bit noisy, and the complaining neighbor is merely more sensitive than most people, there are no grounds to require him to terminate the lease or to be unable to renew their lease. On the other hand, if the neighbor is really objectionable, the landlord should terminate their lease on this basis.

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

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

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

HOOP VERSUS CLOTHESLINE

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

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

How Does a Jew Litigate?

 

clip_image002Mendel Greenberg has been unable to resolve a matter with one of his suppliers. He has attempted to discuss the matter with him, but the last time he tried, the phone was abruptly slammed down. To his chagrin, Mendel realizes that he has no choice but to sue the supplier. Not knowing how to proceed, he makes an appointment with his rav to discuss what to do.

PROHIBITION OF USING NON-HALACHIC COURTS

After Mendel finishes explaining his predicament, his rav explains that it is absolutely forbidden for a Jew to submit litigation against a fellow Jew in a secular court, even if both parties agree (Gemara Gittin 88b; Rashi and Ramban, beginning of Parshas Mishpatim). This is known as the prohibition against using arka’os, or non-halachic courts. When a person chooses a civil court for one’s litigation instead of the Torah’s system, one implies that one does not believe that the system set up by Hashem is the best one. According to the Midrash, this is a chillul Hashem (Midrash Tanchuma, Mishpatim #3).

Unfortunately, even frum people sometimes assume that legal rights and responsibilities are governed by secular law. A Torah Jew must realize that every aspect of life is directed by Torah – including how one litigates. The true believer in Hashem understands that the only procedures to be followed are those sanctioned by the Torah.

In addition to the severe prohibition against using arka’os, someone who submits litigation to civil court will probably end up stealing by receiving money to which one is not entitled, according to halacha. The fact that a court ruled in the plaintiff’s favor, or that the defendant chose to settle rather than contest the court case, does not permit taking ill-gained money.

“I am well aware of the problem,” says Mendel to his rav. “I personally know frum people who use the civil courts to resolve their matters.”

“Every generation has its nisyonos, its tests, of its resolve to observe Torah,” his rav sighs. “In our grandparents’ generation, it was Shabbos. During our parents’ generation, there were many difficult issues such as tznius, shatnez and proper standards of kashrus. In our generation, I find that one of the weakest areas of proper mitzvah observance is the usage of civil courts.

“Let me share a very recent incident with you,” the rav continued. “Someone hired a frum lawyer to resolve a legal problem. I discovered that the lawyer had filed a lawsuit in civil court. ‘Which rav has permitted filing a civil lawsuit?’ I asked the plaintiff. It turned out that the plaintiff was totally unaware that there was any halachic issue, and had relied on the halachic know-how of the lawyer! I explained the severity of the prohibition involved, and the matter was transferred to a beis din.

“Look how serious this prohibition is,” said the rav, pulling a sefer off the shelf. “Listen to this Rambam: ‘Whoever has his case judged by non-Jewish laws or courts, even if their laws are the same (as the Torah), is a rasha. It is as if he blasphemed and raised his hand against the Torah of Moshe Rabbeinu’” (Hilchos Sanhedrin 26:7).

GOING TO JEWISH JUDGES

“Are Israelis allowed to use their civil courts that employ Jewish judges?” asked Mendel.

The rav pulled another sefer off his bookshelf and began reading the following passage from a sefer of the Chazon Ish:

“‘There is no halachic difference between going to gentile judges and going to Jewish judges who use non-Torah laws. As a matter of fact, it is far worse to go to Jewish judges who have traded away a Torah system for a worthless, empty system. Even if the city residents have accepted this court’s system and authority, their acquiescence has no validity. To force someone to follow this system has the status of stealing from them and of raising one’s hand against the Torah given to us by Moshe Rabbeinu’ (Chazon Ish, Sanhedrin 15:4). The identical ruling was issued by Rav Tzvi Pesach Frank and Rav Yitzchak Herzog.” (See Shu”t Tzitz Eliezer 12:82.

DINA DI’MALCHUSA DINA

“I have often heard that dina di’malchusa dina (secular civil law) determines halacha in business matters; isn’t it so here?” Mendel inquired.

Realizing that Mendel was not questioning his authority, but simply attempting to clarify this confusing issue, his rav gave him a patient reply.

“What you’ve just quoted is an incorrect understanding of dina di’malchusa dina,” he began. “Dina di’malchusa dina requires obeying rules of the government such as paying taxes and obeying traffic and safety regulations, and prohibits us from smuggling and counterfeiting. But it does not replace the civil laws of the Torah (the laws of Choshen Mishpat) that govern relationships between Jews, nor does it supplant the Jew’s responsibility to bring his litigation before a proper beis din.”

“I must say,” continued the rav sadly, “that I find it peculiar that often the same person who quotes dina di’malchusa dina when it does not apply, happily ignores it where it does apply. Interpreting business halachos conveniently without checking it out with a rav is another example of an unfortunate weakness prevalent in our generation.

“But please let me clarify one point,” the rav continued. “When I say that dina di’malchusa dina does not apply in litigation, this should not be confused with the similar concept of minhag hamakom.

“Certain areas of halacha, such as the contract laws for buying and hiring, are governed by the concept of minhag hamakom – that normative business practice determines what is halachically accepted. When a person agrees to a contract, both parties assume that they will be following what is normally done, unless it is specified otherwise. For this reason, the halacha regarding sales and employee rights is often governed by accepted practice. And since normal practice is influenced by civil law, these areas of halacha are influenced by civil law. This is not because halacha recognizes civil law, but because of the influence civil law has on business practice.

“However,” the rav concluded, “it should be noted that certain areas of halacha, such as laws of inheritance, are not affected by secular law at all” (Shu”t Rashba, quoted by Beis Yosef, Choshen Mishpat end of Chapter 26).

“How should I begin the litigation I came here to discuss?” asked Mendel.

TWO KINDS OF BATEI DIN

“There are two kinds of batei din,” replied his rav. “An established beis din or an ad hoc beis din known as ‘zabla.’ Zabla is the acronym for ‘zeh borer lo echod,’ because each party chooses one of the dayanim (judges) who will judge the case, and then those two dayanim choose a third person to join them and form a beis din.”

Mendel realizes that zabla will probably not benefit him, since it is doubtful that the supplier will willingly submit to arbitration of any type. Therefore, he asks his rav how he proceeds to apply for a beis din to hear his case. The rav refers him to the mazkir, the bailiff or representative, of a nearby beis din. The mazkir issues a summons to the supplier to appear before a beis din.

“What do I do if the supplier comes to beis din and then refuses to obey the decision?” Mendel asked the mazkir.

“Every beis din insists that the litigating parties agree to be bound completely by the decision of the beis din they use,” explained the mazkir. “In addition, beis din proceedings are binding in civil law as arbitration agreements. This means that once the parties sign an agreement submitting their litigation to beis din for arbitration, the civil court will uphold the beis din’s decision. If one party subsequently fails to honor the psak of the beis din, the beis din will authorize the use of secular authorities, if necessary, to enforce its ruling.”

Ultimately, the supplier ignored the summons to appear before the beis din, a serious halachic offence in its own right. Halacha requires a Jew to respond to a summons to appear before a beis din. The fact that it is an unpleasant experience is no excuse for not responding.

In the vast majority of cases, the defendant has the right to request that the case be heard in a different beis din or to request that the matter be decided through zabla. However, he is responsible to convey this intent to the mazkir beis din.

WHAT IF THE DEFENDANT REFUSES TO GO TO BEIS DIN?

What does Mendel do? Unfortunately, Mendel’s situation is neither uncommon nor recent, and apparently occurred even at the time of the Gemara (see Bava Kamma 92b, as explained by Rosh). If this happens, the required procedure is to file the case with a beis din. The beis din summons the defendant to appear. If the defendant fails to appear or indicates that he will not appear, the beis din authorizes the plaintiff to sue in secular court (Choshen Mishpat 26:2). Under these circumstances, the plaintiff has not violated the prohibition of going to civil courts since his suit was authorized by beis din.

The usual practice is to issue a summons to the defendant three times before authorizing the plaintiff to sue in secular court (Beis Yosef and Sma to Choshen Mishpat, Chapter 26, citing Rav Sherira Gaon). However, it should be noted that this is the prerogative of the beis din. If the beis din feels that the defendant will not heed an additional summons, they may authorize the plaintiff to sue in civil court after receiving just one rejection. Sometimes, the beis din’s representative might simply phone the defendant to find out if he will honor beis din’s summons.

It should be noted that even if someone gets authorization to go to secular court, he is still not entitled to receive more in the settlement or ruling than he is entitled to according to halacha. Therefore, he should ask a posek how much of the award he is permitted to keep.

WHAT HAPPENED TO MENDEL GREENBERG?

Unfortunately, the supplier did not respond to the summons of the beis din, so the beis din signed a document authorizing Mendel to take his case to civil court. As noted above, going to civil court under these circumstances is permitted once authorized by beis din. Mendel has not made a chillul Hashem since he has demonstrated his desire to have his case adjudicated according to halacha. Here, it is the supplier who refused to be bound by beis din’s authority and has demonstrated his contempt for beis din, halacha and Hashem’s Torah, thereby creating a chillul Hashem.

Mendel chose an attorney he knew from shul to represent his case. When he met with the attorney, he explained all that he had learned about the prohibition against going to arka’os. The attorney himself was aware of Rashi’s statement that it is a tremendous desecration of Hashem’s presence to use civil courts. However, he had assumed that it only referred to courts of idol worshippers.

Now Mendel felt confident that he could convey some of his newly gained knowledge. “My rav told me that it is forbidden to use any secular court, and that a chillul Hashem is involved every time one goes to a court that does not recognize Torah as its law system.”

The lawyer suddenly realized that he had many shaylos of his own.

MAY A LAWYER FILE A LAWSUIT IN CIVIL COURT ON BEHALF OF A JEWISH CLIENT?

This is unfortunately a very common shaylah. A Jewish lawyer representing a Jewish client sues another Jewish client in civil court. May the lawyer file a lawsuit in secular court? Rav Tzvi Pesach Frank ruled that this is absolutely prohibited and that it is a major chillul Hashem to do so.

However, this situation provides the lawyer with a great opportunity to perform a kiddush Hashem. He can explain the advantages of going to beis din to his not-yet-observant client. Firstly, it is far less expensive and usually far more efficient, since most frum communities have batei din where a din torah can be arranged within days.

Of course, an observant Jew should not have to be told extraneous reasons why it is beneficial to go to beis din. For one, the only salient point should be that this is what Hashem wants one to do. Certainly, the reward for following halacha is infinitely greater than anything gained by violating halacha. However, since the non-observant client may not appreciate these considerations, the lawyer may convince the client in a way the client will understand.

MAY ONE TESTIFY IN SECULAR COURT ABOUT A CASE THAT WAS ALREADY DECIDED IN BEIS DIN?

Yes, it is permitted to do. Furthermore, it is permitted and a mitzvah for the dayanim of the beis din themselves to testify in secular court regarding their adjudication. There is a discussion in poskim whether it is a lack of kovod haTorah for the dayanim to testify as witnesses in a secular court. The conclusion is that it is not considered a lack of kovod haTorah as long as the secular court is honest (Shu”t Chasam Sofer, Choshen Mishpat #3).

MAY A LAWYER DEFEND A CLIENT IN CIVIL COURT, OR DOES THIS REQUIRE AUTHORIZATION FROM BEIS DIN?

If a Jew is sued in secular court, it is a mitzvah to defend one to the best of one’s ability, since the plaintiff violated halacha by suing in civil court. There is no need to get authorization from beis din.

IS IT PERMITTED TO SUE A NON-JEW IN CIVIL COURT?

A non-Jew is not required to submit his litigation to beis din. For this reason, a Jew may sue a non-Jew in secular court. Therefore, a lawyer can represent a Jew in his suit against a non-Jew.

MAY LITIGATION BE SUBMITTED TO A NON-JEWISH ARBITRATION BOARD?

There is a dispute among poskim whether one is permitted to submit a case to a non-Jewish arbitration board without authorization from beis din. It seems that Shach (Choshen Mishpat 22:15) and Aruch HaShulchan (22:8) permit this, if the arbitrator bases his decision on common sense and fairness, rather than on a non-Jewish system of law. The Nesivos HaMishpat prohibits using a non-Jewish arbitrator, even in such a circumstance.

Although suing in arka’os is strictly prohibited unless authorized by beis din, Shach and Aruch HaShulchan contend that there is a halachic difference between arbitration that bases its decisions on common sense and a sense of fairness rather than a system of law. In their opinion, arka’os is prohibited because one is substituting a different legal system and procedure for the Torah’s system. However, common sense arbitration is not viewed by anyone as a legal system, but simply as a practical, fair way of resolving conflicts. The Nesivos HaMishpat disagrees, contending that using any system not set up by the Torah constitutes the violation of using arka’os.

In practice, to circumvent this machlokes haposkim, one should summon the defendant to beis din. If he refuses to accept beis din’s authority, the beis din’s permission allows one to submit the matter to an arbitration board as well as a civil court.

WHAT SHOULD A PLAINTIFF DO IF HE LIVES FAR FROM A BEIS DIN?

The mazkir beis din can telephone the defendant explaining that the case must be adjudicated by a beis din. If the defendant accepts this, then the beis din will attempt to facilitate the creation of an ad hoc beis din, similar to a zabla, formed from the most qualified individuals available locally. Under these circumstances, a shaylah should be asked whether one should submit the case to an arbitration board. If the defendant refuses to accept beis din’s authority, beis din will authorize that the case be brought to civil court.

Every profession requires its special halachic expertise. The mortgage broker must be familiar with the laws of ribbis, the psychologist with the laws of loshon hora and the businessman with the laws of ona’ah.. And all of them must remember the rules of avoiding arka’os and taking their litigation to batei din.

The pasuk states, “VaYehi David oseh mishpat utzedakah lichol amo,” “And David performed justice and kindness for all his people” (Shmuel II 8:15). The Gemara (Sanhedrin 6b) comments that this pasuk says something unusual. Justice and kindness are opposites.. If David performed justice, then seemingly he was not performing kindness.

The Gemara answers that a just decree resolving a din Torah performs both justice and kindness; justice for the plaintiff who receives his award, and kindness for the defendant by protecting him against the violation of holding onto stolen property. Thus, by ruling against the defendant, beis din is performing an act of compassion by protecting him from transgression. Careful attention to the rules regarding batei din will stand a person in good stead by guaranteeing that his life is always surrounded by kindness.

Have I Caused Someone to Stumble? The Laws of Lifnei Iveir

clip_image002Recently, the main office of Yated Neeman received the following inquiry:

“To the Editor:

“I am an avid reader of Yated and I was wondering if you could forward a query to Rabbi Kaganoff. I especially enjoy his Halacha Talk column and was hoping he could discuss the following issue:

“Our extended family is not observant. Often as major holidays approach, they ‘threaten’ to drive to our home to join us for meals. We know they have no intention of staying over for the entire Yom Tov (although we do extend the invitation). Also, we really do not feel we are doing kiruv since they are coming just to eat and are not interested in anything religious. We advise them that it is not permissible to drive on Shabbos or Yom Tov, but they sometimes show up anyway. They feel that they are taking responsibility for their own actions and they assure us they would be driving anyway, albeit somewhere else.

“Would Rabbi Kaganoff mind discussing the halachic issues in this situation? I would really be interested in seeing how he tackles this problem.” Alan. *(all names have been changed)

Within a few days of receiving Alan’s inquiry, I received a similar shaylah, this one from Shifrah:

2. “My boss asked me to call businesses to offer their employees a chance to go on a healthy cruise complete with Jacuzzi, sauna etc. There was no mention of separate amenities, nor can I imagine that the prospective clientele would want such a thing. In essence, I am being asked to solicit people to purchase a cruise that violates halacha. May I make these phone calls, or is it considered that I am causing people to do something prohibited?”

The following e-mail came the next day from Rachel, an attorney:

3. “A client wants a will or contract drawn up that runs counter to halacha. May I draw up the will or contract the way he wants it?”

In order to answer these common shaylos, we need to understand the rules of lifnei iveir, being an accomplice to someone violating halacha, a prohibition based on the verse, “lifnei iveir lo sitein michshol,” “Do not place a stumbling block before a blind person (Vayikra 19:14).” Chazal interpret this pasuk to mean that one may not give someone bad advice, nor cause him to violate a prohibition.

Actually, causing someone to sin may involve three different Torah prohibitions and one rabbinic prohibition, each one with its own definitions. They are:

I. Inciting – maiseis

This occurs when a person was not even considering doing an aveirah until someone encouraged him. Thus, the instigator incited the performing of the aveirah and is therefore a maiseis.

II. Encouraging — chanufah

One violates this prohibition by complimenting someone for doing a sin, thus implying that sinning is acceptable.

III. Enabling – lifnei iveir

One violates this prohibition if the sinner wanted to do the aveirah, but was unable to do so without assistance. The person who enables the performing of the aveirah violates lifnei iveir.

IV. Even when none of these Torah prohibitions are involved, helping the sinner do the aveirah sometimes violates the rabbinic prohibition of mesaya’a y’dei ovrei aveirah, assisting someone who is sinning.

Our job is to define each of these prohibitions and see whether the activities mentioned above violate any of them. What makes the entire mitzvah and its interpretation more complicated is the contemporary situation in which most Jews are unfortunately not educated in the basic halachos of Judaism. Thus, although they are not observant, they transgress halacha only because they do not perceive the beauty and wonder of Torah. Thus, we must strive our utmost to bring them closer to Torah without compromising any halachic tenets.

I. Inciting Someone to Sin – maiseis

The classic case of maiseis is when the nachash encouraged Chavah to eat the forbidden fruit. Even though the nachash itself did not eat, Hashem punished it for inciting Chavah to sin (Gemara Sanhedrin 29a). Similarly, if Reuven incites Shimon to sin in a way that Shimon had not considered, Reuven is a maiseis. Rav Moshe Feinstein rules that scheduling a shul program for children on Shabbos knowing that their parents will have to drive them to attend violates a Torah prohibition of maiseis, even though the intention is to encourage people to keep mitzvos (Igros Moshe, Orach Chayim 1:99).

Many people, and even some poskim, have difficulty understanding this ruling of Rav Moshe. After all, the parents of these children would be driving on Shabbos anyway, and isn’t it better that these children and their parents be exposed to Yiddishkeit so that they might eventually become frum?

Allow me to explain the rationale behind Rav Moshe’s position:

If a person is an idol-worshipper, may I introduce him to an idol he has never worshipped before? Of course not!

And if I did so, would I be guilty as a maiseis?

“Of course!” Even though he has worshipped idols anyway, I have incited him to this different act of idol worship.

Similarly, even if someone desecrates Shabbos anyway, I may not cause him to violate Shabbos an extra time. Some who causes him to violate Shabbos is guilty of lifnei iveir, and someone who incites him to violate Shabbos in a way that he would not have considered on his own is a maiseis!

Thus even if the parents of these children would drive on Shabbos anyway, since they would not have performed this particular act of Shabbos desecration, arranging this chillul Shabbos is an act of maiseis.

However, some other poskim disagree with Rav Moshe. They contend that if my intention is to bring the person closer to observing mitzvos, we do not consider him a maiseis, but on the contrary fulfill a big mitzvah (see Teshuvos V’Hanhagos 1:358, 483). Others rule that the prohibition of maiseis is restricted to inciting idolatry and related violations. According to this opinion, the nachash was a maiseis because he was inciting Chava to attempt to become like Hashem, which is similar to idolatry (Margaliyos Hayam to Sanhedrin 29a #25).

Shifrah’s shaylah, quoted above, might be dependent to this dispute. “My boss asked me to call businesses to offer their employees a chance to go on a healthy cruise that violates halacha. May I make these phone calls?”

According to Rav Moshe, placing these phone calls presumably violates maiseis since the called is inciting someone to violate halacha that he/she would not have considered before. There may be grounds for lenience in this case, since if Shifrah refuses to make the phone calls, the boss will certainly have someone else call. Shifrah must ask her Rav a shaylah whether she must refuse this task even at the cost of her job or does the situation provide sufficient mitigating circumstances to allow her to keep her job.

II. Encouraging Someone to Sin — chanufah

Complimenting someone, either directly or indirectly, for violating the Torah commits the Torah prohibition of chanufah, sometimes called flattery. One violates this prohibition by approving or implying approval when someone sins, and also by giving honor to a known sinner. (For a full discussion of this prohibition, see Shaarei Teshuvah of Rabbeinu Yonah 3:187-199.) Thus, if someone who sued in civil court without proper rabbinic approval asks Yehudah if this was acceptable, and Yehudah nods or smiles approvingly, Yehudah has violated the prohibition of chanufah. Instead, Yehudah should inform the litigant of his error, teaching him that a huge share in olam haba awaits those who acknowledge that they have sinned and do teshuvah.

III. Enabling Someone to Sin – lifnei iveir

A person violates the prohibition of lifnei iveir if he enables a sinner to do an aveirah that he wanted to commit, but was unable to without assistance. . For example, if a nazir, who is prohibited from drinking wine, wanted to drink some inaccessible wine, the person who hands him the wine violates lifnei iveir, even if he does not incite or encourage the nazir to sin. Merely enabling the nazir to drink wine is considered “placing a stumbling block (the aveirah) before a blind person,” since the nazir is “blinded” to the harm the aveirah brings upon him. Similarly, one may not give someone bread to eat if he will not wash netilas yadayim before eating (Shulchan Aruch Orach Chayim 169:1; Rama, Orach Chayim 163:2), one may not hand food to someone who will eat without reciting a bracha (Shulchan Aruch Orach Chayim 169:2) and a Jew who borrows from or lends to a Jew with interest violates lifnei iveir by causing a Jew to violate this prohibition (Rambam, Hil. Malveh 4:2).

A QUESTION OF INTEREST

The poskim raise the following question: If the person committing the aveirah could not have done so without someone assisting him, but could easily have found a different accomplice, does the facilitator violate lifnei iveir? For example: A Jew who lends to another Jew with interest who would certainly have found another Jew willing to borrow under similar terms. Does the borrower violate lifnei iveir for enabling the lender to charge interest or do we argue that the lender could in any case have violated the prohibition without this borrower’s participation. (The reverse is also true, that the lender causes the borrower to violate.)

Many poskim contend that although the lender would indeed have violated anyway, this is only because he would find someone else who also was willing to violate halacha. But if every borrower observed the halacha correctly, the lender would be unable to violate the prohibition. Therefore, whoever actually borrows the money violates livnei iveir (Mishneh L’Melech 4:2; Chavos Daas, Yoreh Deah 160:1; See also Sdei Chemed; Pischei Teshuvah, Yoreh Deah 160:1). Others disagree, contending that because the sinner can find a willing accomplice, the individual who actually facilitated the prohibition does not violate lifnei iveir (Shu’t Pnei Moshe 2:105; Shu’t Ksav Sofer, Yoreh Deah 83).

One of our original shaylos, asked by Rachel the attorney, was whether she may draw up an interest-bearing loan document between two Jews who are not interested in employing a heter iska which would structure their transaction in a permitted way. Does she violate lifnei iveir by drawing up this document?

It would seem that if there is a non-Jewish attorney who would draw up the document if Rachel refuses then she may draw it up. However, if only Jewish attorneys are available, then whether or not she may draw it up is dependent on the above-quoted dispute between the Mishneh L’Melech and the Pnei Moshe. (Of course, every individual should ask his/her own Rav what to do.)

IV. Assisting – mesaya’a y’dei ovrei aveirah.

As I mentioned above, if the sinner could violate the prohibition without any assistance, someone who helps him does not violate the Torah prohibition of lifnei iveir. This is because the facilitator did not trip him; he tripped himself. Thus, if the wine is within the nazir’s reach, albeit with difficulty, the facilitator passing him the wine does not violate lifnei iveir. However depending on the circumstances, he might still violate the Rabbinic prohibition of mesaya’a, because under certain circumstances, Chazal prohibited helping someone violate the Torah even though he could have sinned anyway. For example, you may not prepare food in the kitchen of a restaurant or hotel that does not observe shmittah, since you are assisting them while they violate shmittah (Mishnah Shvi’is 5:9). This is prohibited even though you are not causing them to violate shmittah.

In conclusion, someone who incites another person to sin when he was not interested in doing so, violates the Torah prohibitions of maiseis and lifnei iveir. If the sinner wanted to violate the prohibition anyway, there is no violation of maiseis, but there is still a violation of lifnei iveir unless the person could have sinned without the facilitator’s assistance. Even when the sinner was motivated on his own to violate the Torah — so that there is no prohibition of maiseis — and he could have sinned without help – so that there is no violation of lifnei iveir — the facilitator may still violate the Rabbinic prohibition of mesaya’a.

The Gemara mentions various cases, some prohibited because of mesaya’a y’dei ovrei aveirah, and others apparently not, and the poskim devote much literature attempting to resolve these seeming inconsistencies. I am aware of several different approaches to resolve these questions. Here are two:

(1) Some contend that the prohibition of mesaya’a does not apply when one facilitates a Jew who does not observe mitzvos to violate the Torah (Shach, Yoreh Deah 151:6).

(2) Others understand that mesaya’a applies only to someone who violates the halacha by mistake, but that it does not apply to someone who sinned intentionally (Dagul Mei’revavah ibid.). (Although these two approaches seem similar, they are not identical. For example, according to the second approach one may not assist a sinner if he is presently unaware that he is violating halacha. According to the first approach, one may assist him. Later in the article I will mentioned another two explanations.)

The rationale behind both of these approaches is that the prohibition of mesaya’a is an extension of lifnei iveir that applies only to someone who is “blind” and violates the law in error. However, it does not apply to someone who ignores the law on a regular basis or to someone who was intentionally violating the law.

Here are another two approaches that define the prohibition of mesaya’a very differently.

(3) Some explain that one violates mesaya’a only when one is an accessory at the time the sinner is doing the aveirah, but not if one assists him before or after he sins. Here is a halachic ruling that clarifies this issue:

Reuven wants to bring a job to a non-Jewish printer, but he is aware that there are Jewish employees who work in this print shop on Shabbos. May he use this printer knowing that Jews might work on the project on Shabbos? Thus, is he an accomplice to their desecrating Shabbos?

Some poskim rule that Reuven may use this printer since he is not involved at the time the workers are desecrating Shabbos. This is opposed to working in a kitchen that does not observe the laws of shmittah since one is working with the kitchen staff at the time they are desecrating shmittah (Shu’t Binyan Tziyon #15).

(4) A fourth reason explains that mesaya’a applies only when someone will definitely be violating the prohibition. This reasoning would also permit supplying work to the print shop since the shop may not do Reuven’s work on Shabbos. For these reasons, , the Binyan Tziyon permits bringing a project to a non-Jewish shop that employs Jewish workers, even if the work might be performed on Shabbos.

We must address one more important issue before we discuss the remaining shaylos that introduced this article. Is halacha concerned whether the facilitator is influencing the sinner towards or away from observing Torah? According to several prominent poskim, one does not violate lifnei iveir is one’s goal is to influence someone to greater Torah commitment. For this reason, Rav Shlomoh Zalman Auerbach (Minchas Shlomoh #35) discusses whether one may serve bread to a non-observant guest who financially supports Torah study and is respectful of those who observe Torah and mitzvos. Rav Shlomoh Zalman rules that if asking him to wash before eating bread may offend him and result in distancing him from mitzvos, one looks at the long-term benefit, not the short term. He contends that in lifnei iveir one evaluates what will benefit the sinner’s observance level on a long term basis, rather than only considering the specific mitzvah at hand. Similarly, Rav Moshe Shternbuch, now Av Beis Din of the Eidah Hachareidis of Yerushalayim, ruled that a son may invite his parents for Shabbos meals even though they will drive on Shabbos if he feels that this will influence them towards greater mitzvah observance (Tshuvos V’Hanhagos 1:358). However, Rav Moshe Feinstein ruled that one does not take long-term calculations into consideration; rather we consider whether one is causing an aveirah in this particular case.

We can now analyze our original shaylos. The first question we raised was:

“Our extended family often drives to our home uninvited to join us for Shabbos or Yom Tov meals and we feel that they are not interested in kiruv.”

Even if we assume that no kiruv will result from this interaction (a debatable point), many poskim permit Alan to host these relatives for Yom Tov meals since he never invited them, and specifically asked them to spend the rest of Shabbos with him to avoid desecrating Shabbos afterwards.

May Alan invite these relatives? According to Rav Moshe’s approach, one may not invite a guest who will certainly violate Shabbos to come; I may only invite them if there is a good chance that he/she will walk, or if I invite him to arrive before Shabbos starts. In the latter case, I must make arrangements that the guest could spend the rest of Shabbos without driving. According to Rav Shternbuch’s ruling, if this influences the guest to be more observant I may invite them notwithstanding that they may drive on Shabbos to arrive.

We see that in this exact same shaylah, one posek considers inviting the non-observant guest to be a violation of halacha, whereas another considers it to be a mitzvah, since one may influence him to observe mitzvos! Thus we see the importance of asking a shaylah and following the guidance provided by one’s Rav. This way one’s actions are always encouraging mitzvos and not, chas v’shalom, the opposite.

Do I Have to Tell the Truth?

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This article was originally published in the American Edition of the Yated Neeman

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

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

Truth is so important that the Gemara teaches, “Hafoch 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,” “Keep distant from a false matter,” (Shemos 23:7). Nowhere else does the Torah command that we must “keep distant” from an activity (Sefer HaChinuch #74), which emphasizes how far we must keep from falsehood (Mesilas Yesharim, Chapter 11).

Even taking credit for something that one did not do is considered a falsehood (Shaarei Teshuvah 3:184).

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).

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

Despite the importance of being straightforward, there are situations where the Torah allows being imprecise to circumvent damage. 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 full disclosure will cause one of these negative outcomes, avoid fabricating a story but omit the harmful information (see Chofetz Chayim, Hilchos Rechilus 1:8). However, if machlokes may result if one answers truthfully, one must modify the truth, rather than create ill feeling.

WHY MAY I MODIFY THE TRUTH?

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

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

Even in these situations, changing the truth should be a last resort. When the situation can be resolved without resorting to untruth, one must do so. Furthermore, it is preferable to give a truthful answer that omits the harmful information rather than modify the truth (see Chofetz Chayim, Hilchos Rechilus 1:8). However, 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 also 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 part of the story that has no negative ramifications. If there is no choice, one must say a fabrication rather than telling the truth that includes lashon hora or creates machlokes (Chofetz Chayim, Hilchos Issurei 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.) 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 their new dress looks because they value 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 is an untruth according to halacha. It should be noted that modifying the truth in this situation is not required (Rif, Bava Metzia 23b; Sefer Hassidim #1061 states that it is preferable not to say a lie in order to be modest but instead to change the subject).

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

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

Similarly, a person who is heavily involved in chesed projects is permitted to describe one’s full role in order to encourage other people to be involved in chesed.

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 Gemara Brachos 53b).

For example, while attending a simcha where one’s chumrah is not observed, one should try to hide the fact that one is not eating. If someone notices that one is not eating, one may explain that one attended another simcha earlier and ate already. One may say this even if one did not attend a simcha that night and one ate at home, since one’s 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 one feels that the only excuse one can use is that one’s stomach is upset, one is permitted to do so.

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

3. TO SAVE SOMEONE FROM EMBARRASSMENT

If necessary, one may modify the truth to save someone from an embarrassing situation or to protect one’s 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 (Gemara Bava Metzia 23b). It is usually better to give an untrue answer than to point out that the question was inappropriate, which might embarrass the person asking the question.

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

One may modify the truth to save oneself from embarrassment even if one caused the uncomfortable situation oneself. 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 (Gemara Kidushin 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 someone. 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.) Receiving money through a din Torah because of a 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 the ends (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, you may tell him 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.

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 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) so that the person accepts what you say and does not sin (Gemara 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 should 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 (Gemara 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 was created first or darkness, they answered that this question has no answer. The Gemara points out that although a pasuk (Breishis 1:2-3) clearly states that darkness existed before light, the scholars refrained from answering Alexander to forestall him from discussing questions that might lead to blasphemy (Gemara Tamid 32a).

Therefore, if you know that someone may turn the conversation into 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.

On the other hand, one may not be untruthful if it deceives or causes someone personal or financial harm. For example, one may not deny having broken someone’s property even if one’s intent is only to avoid embarrassment, if this might exempt one from compensating the owner. Similarly, one may not deceive someone about a shidduch by providing misinformation that might affect the other party.

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 not deceptive nor dishonest, but simply idiomatic. Therefore, it is permitted to say that something has happened “millions of times” since everyone understands that this is an exaggeration. Similarly, it is permitted to call a fellow Jew “my brother,” since all Jews are related and, furthermore, we are all brothers in mitzvos. It is also permitted to call a student “my son,” since the pasuk refers to our students 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 that the what is printed on the invitation. Since it is known that the time on the invitation is earlier than the simcha will take place, and is intended to give people a sense of 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 like one of the students, although it was obvious to all of them that the halacha was otherwise. In the context of the discussion, stating that the halacha was like this student meant that the student’s reasoning was very solid, and the compliment would encourage the students to study with more enthusiasm (Gemara Eiruvin 13a).

An opposite pedagogic use is found in a different Gemara. Bar Kappara, one of Rebbe’s disciples, once said something disrespectful about Rebbe. The next time Bar Kappara came to visit Rebbe, Rebbe told him “Aini makircha mei’olam,” which can translate into English as “I do not know who you are.” 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 (Moed Katan 16a).

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, “I do not know who you are” were actually very truthful – Does 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 it 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. An excellent sefer on the subject is by Rabbi Daniel Travis, entitled “Priceless Integrity.”

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

Rav Yaakov Kamenetsky was once asked why he lived so long. (We see in Gemara discussions that it is considered an area of halacha to answer this question accurately.) After contemplating the question for a while,  Rav Yaakov reluctantly answered, “Probably in the merit of the fact that I have never told a lie”.

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 to receive 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!

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