Did Dovid Accept Loshon Hora? A Narrative of Biblical and Halachic Intrigue

The Gemara quotes the great Amora Rav as saying: “Because Dovid HaMelech believed loshon hora, the Jewish kingdom was divided, the Jews worshipped idols, and we were exiled from our land” (Shabbos 56b). What does this enigmatic statement mean? Can Rav possibly be blaming Dovid, the author of Tehillim, the founder of the Jewish royal family and the ancestor of Moshiach, for causing the Churban? During the weeks that we mourn the loss of the Beis HaMikdash, we should try to understand the sequence of events that led to Rav’s comments.

THE STORY

After successfully vanquishing the enemies of the Jewish people and solidifying his monarchy, Dovid HaMelech wants to find out if there are any surviving descendants of his predecessor and father-in-law Shaul, who was slain in battle with the Pelishtim. Dovid calls Tziva, a slave who has been managing Shaul’s properties, and inquires whether Shaul has any surviving offspring. Tziva informs Dovid that Yonasan, Shaul’s crown prince and Dovid’s closest friend, is survived by a lame and unscholarly son named Mefiboshes (not to be confused with a different Mefiboshes who was Shaul’s son, an outstanding Torah scholar, and a rebbe of Dovid’s [Berachos 4a]). Dovid meets Mefiboshes ben Yonasan and discovers that he is indeed a talmid chacham (Shmuel II 9:1-5; Rashi, Shabbos 56a s.v. bilo davar). Thus, Dovid could already discern that Tziva has a tendency to libel Mefiboshes.

Dovid meets Mefiboshes ben Yonasan, and invites him to join his royal household and to take all his meals with them. In addition, he awards him with the formal ownership of all of Shaul’s properties, thus making Tziva and all his slaves into Mefiboshes’ property. In a few moments, Mefiboshes has been returned to the wealth and honor appropriate to the royalty into which he was born.

Shortly thereafter, Dovid’s own fortunes take a dismal turn when his own son Avshalom instigates a rebellion, forcing Dovid and his supporters to flee for their lives from Yerushalayim as Avshalom’s forces seize the capital.

IS MEFIBOSHES A TRAITOR?

As Dovid flees Yerushalayim, Tziva arrives with a team of donkeys laden with provisions for Dovid’s men. In answer to Dovid’s inquiries about Mefiboshes’ whereabouts, Tziva responds: “Behold, he remains in Yerushalayim, saying that now the Bnei Yisroel will coronate me, the scion of the true royal family, as their king.” In other words, Mefiboshes feels that the Jews would prefer to restore the house of Shaul to the throne and abandon the infighting of Dovid’s fratricidal family (Metzudos David, Shmuel II 16:3). In reaction to Tziva’s report of Mefiboshes’ treachery, Dovid awards Tziva the property of Shaul that he had previously given to Mefiboshes (Shmuel II 16:1- 4). If Mefiboshes has indeed rebelled, Dovid has the legal right to confiscate his property (see Rashi, Shabbos 56a s.v. dvarim).

Was it correct for Dovid to grant Shaul’s estate to Tziva?

Although Dovid has the right to be concerned that Tziva’s account might have some basis, the Gemara quotes a dispute (soon to be analyzed) whether he was permitted to assume the story to be true. Acting out of concern is permitted and is halachically termed being chosheish (suspecting) that a story may be true (Niddah 61a). One may react defensively to even an unsubstantiated story in order to protect one’s interests in the event that the story is true. However, accepting the story as definitely true and following up on that assumption violates the laws of loshon hora. One may not take definitive action, such as seizing property, as a result.

Thus, accepting Tziva’s account without sufficient proof seems to violate two serious prohibitions: (1) betzedek tishpot amisecha, judging people favorably, and (2) kabbalas loshon hora, believing loshon hora!

These issues become even tougher when we recall that Dovid had already experienced Tziva’s maligning of Mefiboshes in a previous conversation. This was when Tziva reported to Dovid that Mefiboshes was unscholarly, and Dovid consequently discovered that Mefiboshes was a talmid chacham of stature. Furthermore, we know that Tziva had ulterior motives to unseat Mefiboshes from his place of honor. So how could Dovid act as if Tziva’s story was certainly true?

Before trying to understand Dovid’s actions, we will return to the chronicle of Avshalom’s revolt.

AVSHALOM’S DEFEAT

For a while, it appears that Avshalom will indeed wrest power from his father and establish himself as king. However, Dovid’s forces decimate Avshalom’s troops in battle. Avshalom himself is ignominiously trapped. While riding a mule, his hair becomes tangled in the branches of a tree and he is left swaying above ground as his mule continues without him. Yoav, Dovid’s commanding general, and his entourage dispatch Avshalom while he is hanging in midair.

MEFIBOSHES APPEARS

Upon Dovid’s triumphant return to Yerushalayim, a very unkempt Mefiboshes welcomes him. He has not trimmed his mustache, washed his legs, nor laundered his clothes since Dovid fled Yerushalayim (Shmuel II 19:25, as explained by Targum).

Dovid asks Mefiboshes why he failed to join Dovid’s men in their flight from Yerushalayim (Shmuel II 19:25- 26). After all, since Mefiboshes had been eating daily at Dovid’s table, remaining behind when Avshalom assumes control could be highly dangerous (Malbim ad loc.)!

Mefiboshes replies: “My lord the king, my slave tricked me by telling me that he would saddle the donkey so that I could join the king – for I am lame; while he (my slave) slandered me to my lord, the king. My lord, the king, is as an angel of G-d, and should do as he sees fit. For all the members of my father’s household were guilty of the death penalty (for crimes we performed in Shaul’s service) yet you honored me to dine at your table. What right do I have to ever complain to the king?” (Shmuel II 19:27- 29)

MEFIBOSHES’ LEGAL DEFENSE

Dovid is faced with a puzzling dilemma: If Tziva is correct; Mefiboshes is an ungrateful, scheming traitor. If Mefiboshes is correct, Tziva is the worst type of slanderer. One of them certainly deserves punishment; the question is which? Dovid is in the unenviable position of trying to determine which of them is guilty. Is there any way to resolve this dilemma?

Does circumstantial evidence imply who is guilty? Let us examine:

1. Although Mefiboshes’ alibi seems reasonable, certain aspects of it are weak. For one thing, it does not explain his untidy appearance when he came to greet Dovid. How could he appear before the king without first bathing, trimming his mustache and washing his clothes! Although he claimed to still be mourning Dovid’s flight from Yerushalayim, he should have tidied himself in Dovid’s honor. Not doing so implies that he is mourning Dovid’s successful return! (Rashi, Shabbos 56a s.v. dvarim)

2. When questioned by Dovid as to why he remained in Yerushalayim under Avshalom, Mefiboshes responds, “My slave tricked me by telling me that he would saddle the donkey so that I could join the king – for I am lame. And he (Tziva) slandered me to my lord.” Granted that Tziva tricked Mefiboshes and took the donkeys with him, how could Mefiboshes know that Tziva has been slandering him? If Mefiboshes was indeed abandoned in Yerushalayim when Tziva took the mounts, he would have no idea what transpired after that point (Binayahu). Unless, of course, he actually had done or said something scandalous in Tziva’s presence…

Although the evidence against Mefiboshes is not ironclad, it does leave a dissatisfying sense that he is not telling the whole story. Later in the article, I will present another piece of evidence against Mefiboshes.

DOVID’S RULING

Who should Dovid believe? Either Tziva is telling the truth, in which case Mefiboshes is a traitor and should certainly not be granted ownership over his late grandfather’s property, or Tziva is lying, in which case he is a lowlife, and should certainly not be granted any new properties as reward!

What does Dovid do? He announces that Mefiboshes and Tziva should divide Shaul’s estate!

It is difficult to comprehend why Dovid divided the property between them–

TALMUDIC INSIGHTS

At this point, we will study the Gemara’s comments on this enigmatic story. The Gemara cites a dispute between Rav and Shmuel concerning Dovid’s actions. Rav states that Dovid violated the Torah’s prohibition of believing loshon hora, whereas Shmuel protests that Dovid was innocent (Shabbos 56a).

Why does Shmuel consider Dovid innocent? Does not confiscating the property show that he assumed Mefiboshes guilty without proof, which constitutes believing loshon hora?

Shmuel explains that Dovid had adequate anecdotal verification (dvarim hanikarim) indicting Mefiboshes for treason. Although this is not evidence that a beis din could use for a ruling, since Dovid was judging as a king, and not as a beis din, he could base his decision on substantive circumstantial evidence (Be’er Mayim Chayim, Hilchos Loshon Hora 7:22).

There is a difficulty with this approach: If indeed Dovid was justified to consider Mefiboshes guilty, why did he divide the properties between Tziva and Mefiboshes. If Mefiboshes is guilty, Dovid should confiscate all the property, and if Mefiboshes is innocent, he (Mefiboshes) should keep it all. What does Dovid accomplish by depriving him of half and awarding it to Tziva?

The Maharsha offers an original approach to resolve this conundrum. Although Dovid felt his evidence against Mefiboshes was sufficient, he realized that he would never be able to prove absolutely whether Mefiboshes was a treacherous schemer or not. Therefore, Dovid treated the case as an unresolved issue — and divided the property between the two parties, knowing that one of them was receiving a highly undeserved reward.

The Maharsha then continues by explaining the next passage of this Gemara: When Dovid informed Mefiboshes that he was being deprived of half the estate, Mefiboshes reacted with tremendous fury, saying, “I just finished telling you that I was eagerly awaiting your return to the city in peace, and this is how you treat me? My complaints are not against you as much as they are against He who returned you in peace!”

The Maharsha concludes that Mefiboshes’ sacrilegious outburst sealed Dovid’s decision, demonstrating that Mefiboshes was not as faithful as he claimed. If indeed, he had been mourning Dovid’s flight, his happiness at seeing Dovid restored to his throne should have been great enough not to criticize Dovid for any wrongdoing. Indeed his outburst demonstrates that Tziva was indeed correct and that Mefiboshes was simply performing lip service.

(This last approach presents us with an unresolved problem. Dovid had already divided the estate between Mefiboshes and Tziva. If he now had further evidence of Mefiboshes’ treachery, why did he not therefore award the entire estate to Tziva? There are several possible ways one can attempt to resolve this difficulty.)

A DISPUTING OPINION

Until now, I have presented Shmuel’s approach that Dovid did not violate the laws of loshon hora. Rav disagrees, contending that Dovid violated halacha by accepting Tziva’s story; Dovid had no right to assume that Mefiboshes had done anything wrong and he therefore should not have confiscated any property.

HALACHIC QUESTION

There are two ways to explain Rav’s position, with a major halachic difference between them. Does Rav disagree with the entire principle of accepting loshon hora when one has adequate circumstantial evidence? Alternatively, does Rav accept this principle, but dispute its application in this case. He feels that Dovid “convicted” Mefiboshes without sufficient evidence – thus violating the prohibition against accepting loshon hora.

Which of these two approaches is correct? Can we accept circumstantial evidence in halacha, or does this violate the laws of loshon hora?

This question not only concerns a judge or king, but also often affects each one of us. May we assume that someone we see behaving wrongly indeed sinned when the evidence indicates this, or do the mitzvos of not accepting loshon hora and judging favorably require positive evaluation even under these circumstances?

Many authorities conclude that if one sees absolutely convincing, circumstantial evidence one may assume that it is true (Sefer Yerayim #192; Smag, Lo Saaseh #10; Hagahos Maimoniyos, Dei’os 7:4; Magen Avraham 156:2). Others contend that we may not judge someone unfavorably unless we know for certain that he sinned and one may never rely on circumstantial evidence to believe loshon hora (Menoras HaMaor, Loshon hora Chapter 18; Bris Moshe commentary to Smag, Lo Saaseh 10:5, explaining Rambam).

According to either interpretation of Rav’s opinion, Dovid should have rejected Mefiboshes’ guilt, and therefore confiscating his property was unjustified. Consequently, the dividing of his royal legacy, the Jewish monarchy, personally punished Dovid. As we know, ten of the twelve tribes seceded from Dovid’s grandson, King Rechavam. The king appointed by the break off tribes, Yeravam, later became concerned that his people might make pilgrimages to the Beis HaMikdash, and therefore established temples in his realm as alternative worship centers (Melachim I 12:28. Note that the commentaries there dispute whether these temples were initially avodah zarah or only became avodah zarah later.) Although this idolatry initially affected only the ten northern tribes, its nefarious influence eventually spread to the two southern tribes of Yehudah and Binyomin. Eventually, this idol worship caused the destruction of the Beis HaMikdash, as Rav concludes in his statement:

“At the moment that Dovid said, ‘You and Tziva shall divide the property,’ a heavenly voice told him, ‘Rechavam and Yeravam will divide the monarchy.’… Had Dovid not accepted the loshon hora, Dovid’s royal monarchy would never have been divided, the Jews would never have worshipped idols, and we would never have been exiled from our land.”

This quotation reflects Rav’s opinion. As mentioned above, Shmuel contends that Dovid was correct and that Rav’s blaming Dovid’s contribution to the resulting tragedies is unfounded.

What lessons do we learn from this tragedy? On a halachic level, Shmuel derives from this discussion that when there are dvarim hanikarim, strong circumstantial evidence, there is no requirement to judge someone favorably. From Rav’s perspective, we derive an almost opposite lesson: that although Dovid certainly felt he has sufficient basis to “convict” Mefiboshes, he erred, and his error, albeit only a negligent mistake, caused terrible results.

We all know the enmity that believing loshon hora can cause. If we all emphasize judging favorably we will certainly assist the reconstruction of the house of Dovid in Yerushalayim!

What Happens When We Do Something Wrong on Shabbos?

Question #1: Cholent Caper

Shimon looks rather sheepish when he asks this shaylah on Shabbos morning: After waking up, he tasted the cholent and decided it needed some extra spices. Without thinking, he added some pepper and garlic powder, which is clearly an act of desecrating Shabbos. Can his family eat the cholent, or is it prohibited to benefit from this melachah?

Question #2: Bad Advice

“My main mutual fund has performed wonderfully over time and I am very satisfied with it. However, I recently read a transcript in which the fund manager, who is probably Jewish, referred to investment discussions with his staff on Friday night. I am concerned that I may be benefiting from chillul Shabbos that he performs in the course of researching venture possibilities for the fund. Must I pull my money out and look for another investment vehicle?”

Question #3: The Unrepentant Knitter

Yehudis seeks guidance for a real predicament: “I have a non-observant relative who loves to knit and is presently knitting a baby blanket for my soon-to-be. I am certain that she is doing some of this on Shabbos. If we do not use her blanket she will be very upset — and she will notice if we fail to use it. What may we do to avoid antagonizing her?”

Each of these true-life shaylos that I have been asked involve the same halachic perimeter: May one benefit from work performed on Shabbos? Although we certainly discourage Shabbos desecration before the act, the question is whether something produced on Shabbos may be used afterwards. This very question is discussed in the Gemara in several places, which cites a three-way dispute concerning food cooked by a Jew on Shabbos. The three opinions ultimately focus on three different concerns and debate whether and to what extent we are concerned about these issues:

I. Intrinsic Prohibition

Some contend that a food cooked in violation of Shabbos becomes a substance that we are prohibited to eat. Those who rule this way maintain that this food becomes non-kosher.

II. Penalize the Sinner

Chazal penalized a person who intentionally desecrated Shabbos by banning that individual from benefiting from his misdeed. The food is still kosher, but there are restrictions as to who may eat it and when.

III. Deferring Use

One must defer benefiting from an item created through Shabbos desecration until after Shabbos so as not to profit from the sin.

I. Intrinsic Prohibition

Rabbi Yochanan Hasandlar contends that cooking in intentional violation of Shabbos creates an intrinsically “tereifah” forbidden food. In his opinion, not only does the Torah forbid desecrating Shabbos, but also, food prepared in defiance of Shabbos may not be eaten and will never become permitted. However, this only applies to an item produced in intentional violation of Shabbos. An item created in unintentional, but negligent, violation of Shabbos (shogeig) is treated more leniently.

II. Penalize the Sinner

Rabbi Yehudah follows a somewhat more lenient approach, prohibiting the sinner from using items made on Shabbos as a penalty, but not because the food is intrinsically non-kosher. Chazal created this penalty so that the perpetrator should not benefit from his misdeed. For this reason, Rabbi Yehudah prohibits the item permanently only to the person who desecrated Shabbos. Others may use the item after Shabbos is over.

III. Deferring Use

Rabbi Yehudah, and third opinion, Rabbi Meir, agree that other people may not use the item on Shabbos itself. This benefit must be deferred because one should defer use of items created via Shabbos desecration until after Shabbos. However, once Shabbos is over, people not involved in the Shabbos desecration may use the item.

Negligent Desecration

Thus far, we have discussed what happens when something was prepared in intentional defilement of Shabbos. However, if someone cooked the item in unintentional, but negligent, violation of Shabbos (shogeig), even the one who cooked may eat the food once Shabbos is over. In this case, no distinction is made between the person who violated Shabbos and anyone else. Since the sin was unintentional, we do not penalize the perpetrator. But Rabbi Yehudah requires that we defer the benefit until after Shabbos.

What is the Legal Definition of “Negligent”?

Negligent violation (shogeig) includes someone who forgot or did not know that it is Shabbos, or forgot or did not know that the activity being performed is forbidden on Shabbos. It also includes someone who was provided mistaken information that something prohibited is permitted. This applies even if one asked a competent scholar who erred and permitted something forbidden (Magen Avraham 318:3). As mentioned above, in any of these situations, one may use the item after Shabbos ends.

Example:

Devorah discovered that she prepared food on Shabbos in a way that the Torah prohibits. Since she was unaware of the halachah, this is an act of shogeig, and the food may be eaten after Shabbos.

An Intended Beneficiary

As I explained above, Rabbi Yehudah maintains that a person who desecrated Shabbos intentionally may never benefit from the result, while others may benefit after Shabbos. What about a person for whom the item was made in intentional desecration of Shabbos? May he/she use the item? For example, if a Jew cooked for a guest on Shabbos, may the guest eat the food after Shabbos is over?

Why should the intended beneficiary be treated more stringently than anyone else?

Not Only Shabbos

To understand the background behind this question we need to clarify some related issues. I mentioned above that Rabbi Yehudah prohibits the sinner from ever using an item that resulted from his desecration. This rule is not limited to Shabbos, but also applies to other areas of halachah. Here is an example:

Ein Mevatelin Issur Lechatchilah

Although prohibited substances that spill into food are sometimes nullified, this applies only when the mixture occurred unintentionally. One may not deliberately add prohibited food to permitted food in order to nullify the banned substance. This prohibition is called ein mevatelin issur lechatchilah. Bitul is something that happens after the fact and cannot serve as a premeditated solution .

What happens if someone intentionally added a proscribed ingredient? Is the food now prohibited?

Indeed, the person who added the forbidden component may not consume it. This law is derived from the rules of Shabbos. Just as the intentional Shabbos desecrator may not benefit from his misdeed, so too, the deliberate contaminator of kosher food may not consume the mixture (Gittin 54b). Therefore, if the CIA (Cashrus Intelligence Agency) detects the misdeed, the perpetrator will be banned from benefit.

Already Added

Because of the above rule, if non-kosher food accidently fell into food at a rate too great to be nullified, one may not add extra kosher food or liquid in order to nullify the prohibited substance. This act is also prohibited under the heading of ein mevatelin issur lechatchilah. Here too, someone who knows that this act is prohibited and intentionally added permitted food to nullify the forbidden component, may not consume it because he violated ein mevatelin issur lichatchilah (Shulchan Aruch, Yoreh Deah 99:5). However, if he did this negligently he may use the finished product.

All these rulings derive from the laws of Shabbos that we discussed before. The person who added the product intentionally, knowing that this is prohibited, is comparable to someone who knowingly desecrates Shabbos and may not benefit from his misdeed. However, the person who was unaware that his act is prohibited qualifies as a shogeig and may use the product. (Note that although on Shabbos we sometimes make a distinction between using the food on Shabbos and using it after Shabbos, no such distinction applies in the case of ein mevatelin issur lechatchilah.)

Don’t Add Water!

The following case explains this last situation more clearly. Mrs. Smallminded discovers that she inadvertently added a non-kosher ingredient to the huge pot of soup she is preparing for a family simcha. Realizing her error, she calls her rav, who concludes that the ratio of kosher to non-kosher in her soup is insufficient and that therefore the soup is not kosher. Unwilling to discard all her efforts and ingredients, Mrs. Smallminded adds water to the soup until there is sufficient kosher product to nullify the non-kosher ingredients. As mentioned above, this act is prohibited as a violation of the rule ein mevatelin issur lichatchilah. If Mrs. Smallminded was unaware that she was forbidden to add water, she qualifies as shogeig and may eat the soup. However, if she was aware that this was prohibited and she intentionally ignored the halachah, she may not eat the food, for this would allow her to benefit from her deliberate misdeed.

What about her Guests?

Let us assume that Mrs. Smallminded realized that she was not allowed to add water, but did so anyway. Later, she has pangs of conscience about her misdeed. As I mentioned above, Mrs. Smallminded may not eat the soup. What about her guests and family members? May they eat the soup because the non-kosher ingredient is indeed bateil, or are they also prohibited from eating it?

The halachah is that the intended beneficiaries may not eat the soup. Since all of Mrs. Smallminded’s family members and guests are intended beneficiaries, none of them may eat the soup (Rashba, Toras HaBayis 4:3, page 32; Tur Yoreh Deah 99). However, some authorities contend that this applies only if those people knew that the water was being mixed in for their benefit, as I will explain.

Not Aware of the Bitul

This leads us to a new question: What if the intended beneficiaries did not know that the item was being mixed in for their benefit?

Some authorities rule that in this last situation the intended beneficiary may use the product (Maharshal; Taz 99:10). However, many authorities conclude that the item is prohibited. Furthermore, most rule that if a store added prohibited substances to kosher food in order to sell it to Jewish customers, no Jewish customers may consume the finished product since they are all considered intended beneficiaries (Shu”t Rivash #498; Rabbi Akiva Eiger). According to this, Mrs. Smallminded’s guests and relatives would be forbidden from eating her soup even though they were unaware of what she did.

You might ask, why are they being penalized from eating the luscious soup when they were completely unaware of her intent to violate the law? After all, not only did they not intentionally violate any laws, they did not even know what Mrs. Smallminded was doing in the kitchen!

The Overambitious Butcher

It is easiest to explain this ruling by examining a case discussed by earlier halachah authorities. A town butcher had mastered the proper skills to be a qualified shocheit, but had never passed the lext step – being licensed to be a bodeik, the person who checks after the shechitah to ascertain that the animal contains no imperfections that render it tereifah. Nevertheless, this butcher-shocheit performed the shechitah and the bedikah himself, thereby overextending his “license.” The shaylah was whether the meat could be eaten anyway, based on the halachah that if one cannot perform bedikah the animal is ruled kosher, since most animals are kosher.

The posek of the generation, the Rivash, ruled that no one could eat the meat. Although it is indeed true that if a bedikah cannot be performed the meat is kosher, one may not intentionally forgo the bedikah. The Rivash forbids the meat of the above-mentioned butcher-shocheit because of the principle of ein mevatelin issur lichatchilah, and rules that no one may use the meat, since all of the butcher’s customers are intended beneficiaries of his violation. This is true even though the customers certainly did not want the butcher to forgo a proper bedikah. We see that when the prohibited food is prepared for someone else, the authorities forbade that person from eating the food, even when he did not want the bitul to transpire.

An Intended Shabbos Beneficiary

Having established that mixing food in violation of halachah prohibits the resultant product, we now need to determine the law on Shabbos. Does halachah ban the intended beneficiary from benefiting from the item produced on Shabbos, even if he/she did not want the item prepared on Shabbos?

The late halachic authorities dispute this question, some contending that since one cannot use the item until Shabbos is over, there is less reason to prohibit the intended beneficiary (Pri Megadim, Eishel Avraham 318:2, based on Beis Yosef, Yoreh Deah 99). Others conclude that food cooked on Shabbos for customers remains prohibited forever since they are all intended beneficiaries (Shu”t Ksav Sofer, Orach Chayim #50).

III: Rabbi Meir’s Approach

At the beginning of the article, I mentioned that the Gemara records three positions concerning this issue. And yet, so far I devoted most of the article to explaining Rabbi Yehudah, briefly mentioned Rabbi Yochanan Hasandler, and mentioned the third opinion, Rabbi Meir, only in passing. This is because most halachic authorities rule like Rabbi Yehudah, although there are several who follow the more lenient opinion of Rabbi Meir (Gr”a, Orach Chayim 318). (One can note that the Rosh, in Bava Kamma 7:6, rules like Rabbi Yochanan HaSandler; however, in Chullin 1:18 he seems to conclude otherwise.) Rabbi Meir contends that anything cooked in negligent violation of Shabbos may be eaten even on the day it was made and even by the person who desecrated Shabbos. Only something produced in intentional defiance of Shabbos may not be used, and this becomes permitted as soon as Shabbos ends even to the violater himself. Thus, he disputes Rabbi Yehudah in two key points, both about the status on Shabbos of food cooked negligently, and whether it is permitted after Shabbos for the person who intentionally desecrated Shabbos.

According to Rabbi Meir, although violating Shabbos is a most severe desecration, the Sages did not prohibit use of the product, but merely postponed using it until after Shabbos so as not to benefit from the sin. He makes no distinction between the violater himself and others. He also contends that there is no prohibition at all against using an item negligently prepared on Shabbos.

Answering our Shaylos

At this point, let us try to resolve the different shaylos that I mentioned before.

Question #1: Shimon negligently added spices to the cholent on Shabbos. Can his family still eat the cholent, or is it prohibited due to the prohibition of benefiting from melachah performed on Shabbos?

According to most authorities, the halachah follows Rabbi Yehudah and therefore this cholent would be prohibited, but only until Shabbos is over. However, some late authorities rule that under extenuating circumstances one may rely on those who accept Rabbi Meir’s more lenient approach (Mishnah Berurah 318:7). According to this approach, one could permit Shimon to enjoy his cholent on Shabbos if he does not have enough ready food for everyone.

Mutual Funds and Shabbos

Our second question was: “My main mutual fund has performed wonderfully over time, and I am very satisfied with it. However, in a transcript I read recently, the fund manager, who is probably Jewish, referred to Friday night discussions with his staff about investments and the economy. I am concerned that I might be benefiting economically from chillul Shabbos that he performs in the course of researching investment possibilities for the fund. Must I pull my money out and look for another vehicle?”

Although we do not want to encourage anyone to desecrate Shabbos, there is, strictly speaking, no violation incurred in benefiting from this investment. The adviser’s desecrating Shabbos does not create any object, so that even the strictest opinion of Rabbi Yochanan Hasandler would not prohibit the money earned by the fund.

The question here is really a different one: Am I hiring a fund adviser to work on Shabbos? Also, there is what I would call a hashkafah/hadrachah question: Do I want to make profit based on a Jew being mechaleil Shabbos? After all, Hashem provides livelihood and perhaps I should steer away from building my personal nestegg on the backs of someone’s chillul Shabbos. I refer our readers with such a question to their own rav.

The Unrepentant Knitter

Now let us now examine our third case above: Yehudis has a non-observant family member who is knitting on Shabbos a baby blanket. May Yehudis use the blanket?

Assuming we follow Rabbi Yehudah’s approach, the main question here is whether an intended beneficiary is prohibited forever from use of an item made in violation of Shabbos. Since most later authorities permit this, I ruled that she could use the blanket.

Conclusion

Resting on Shabbos is our acknowledgement that Hashem created everything and brought the Creation of the world to conclusion on the seventh day. Shabbos is His statement that His creating the world was complete, and our observing it recognizes this. When we bring our workweek to a close, we thereby note Hashem’s supremacy and the message of Shabbos. Unfortunately, not all our brethren understand this message, thus leading to many of the shaylos that we discussed in this article. We hope and pray that all Jews soon understand the full beauty of Shabbos.

Being a Good Guest, or The Halachic Etiquette When Visiting Someone’s House

Parshas Va’Yera describes how Avraham Avinu treated his guests, and how his angelic guests behaved. From these interactions, Chazal derive many halachos pertaining to the behavior of a guest in someone’s house.

Some of these rules are fairly self-explanatory. For example, a guest should not bring with him another guest (Bava Basra 98b).

A guest should feel that whatever the host serves and prepares is in his honor. The Gemara explains, “What does a good guest say? How hard the host worked for me! How much meat he brought! How much wine he served! How many dainty dishes he prepared! And all this he prepared for me!”

On the other hand, what does a bad guest say? “Did the host work for me? I ate only one roll and one piece of meat and drank only one cup of wine. All the work he did was done for his wife and children!”

A STRANGE CONVERSATION

In the context of learning proper etiquette, the Gemara (Pesachim 86b) records the following anomalous story. Rav Huna the son of Rav Nosson visited the house of Rav Nachman bar Yitzchak, where apparently Rav Huna was not known. His hosts asked Rav Huna, “What is your name,” to which he replied “Rav Huna.” They then offered him to sit on the couch, although everyone else was sitting either on the floor or on benches, and the couch was reserved for special guests. Rav Huna sat on the couch and did not decline the honor. Subsequently, they brought him a kiddush-sized cup full of wine, which he immediately accepted and drank in front of them, but he paused once in the middle of drinking.

Rav Nachman’s household, which included talmidei chachamim, felt that Rav Huna’s responses to their invitations were inappropriate and peppered him with questions about his behavior. (Since he had identified himself as a talmid chacham, all of his acts could teach someone a halachic lesson. However, they disagreed and felt that he had not acted correctly; it was therefore appropriate to ask him to explain his behavior.) The conversation that ensued is the source of many halachos.

“Why did you introduce yourself as ‘Rav Huna?’” they first asked. Is this an appropriate way to identify oneself?

Rav Huna responded: “That is my name.”

“Why did you sit on the couch when we offered?” They felt that it would have been proper for him to politely refuse the honor and to sit on the floor with everyone else (Tosafos).

Rav Huna retorted by quoting the now famous halachic adage, “Whatever the host asks you to do, you should do (see Mesechta Derech Eretz Rabbah 6:1).”

The hosts continued, “When we offered you the cup, why did you accept it the first time we offered it?”

To which Rav Huna replied, “One may refuse a small person, but one should not refuse the request of a great person.” As we will see shortly, the source for this halacha is in this week’s parsha.

The hosts then inquired, “Why did you drink the small cup of wine we gave you in two gulps, rather than drink it all at once?”

Rav Huna countered, “The earlier authorities taught us that only a guzzler drinks a whole cup of wine at once and arrogant people drink a cup with three sips. The proper way to drink a cup of wine is in two swallows (Mesechta Derech Eretz Rabbah 8).”

Finally, his hosts asked, “Why did you not turn your face when drinking?” A talmid chacham should not eat or drink in the presence of many people (Gemara and Rashi, Bechoros 44b). To this Rav Huna replied that only a bride should be so modest; for anyone else this is not considered modesty (Rashi, Pesachim 86b).

WHAT DID THEY MEAN?

In the course of this puzzling conversation, Rav Huna taught his hosts (and us) several halachos germane to proper etiquette that need to be understood properly. We will now dissect the conversation between these scholars to understand its underlying lessons.

1. He identified himself as “Rav Huna.” Isn’t this a conceited way of introducing oneself? Why would Rav Huna, a great Torah scholar and tzadik, have done this?

The source of this halacha (Nedarim 62a) reads as follows:

Rava pointed out that two verses seem to contradict one another. In one verse, Ovadiah says to Eliyahu, your servant has feared Hashem from his youth (Melachim I 18:12), implying that it is appropriate to make a true statement about one’s spiritual accomplishments. On the other hand, Mishlei (27:2) declares, someone else should praise you, but not your mouth. Rava explains that the pasuk in Mishlei applies only when there are people present who can notify others that this person is a talmid chacham. However, if no one here knows that he is a talmid chacham, he may notify people of his special status in order to receive his deserved rights and so that people are not punished for treating him disrespectfully (Rosh, Nedarim 62a).

Since the members of Rav Nachman’s household were unaware that Rav Huna was a talmid chacham, it was appropriate for him to bring this to their attention (Meiri; Maharsha).

It is noteworthy that when Rav Huna explained why he had identified himself as Rav Huna, the Gemara quotes him as saying baal hashem ani, which Rashi seems to explain as meaning, this was always my name. However, this is not the usual way in either Hebrew or Aramaic of telling someone one’s name or appellation. Alternatively, the words baal hashem ani can be interpreted as meaning, I am well known by that name, which implies that he was a well-known personage, although he was apparently unknown by the members of Rav Nachman’s household (see Meiri). Thus, he was responsible to inform them who he was so that they should not treat him disrespectfully.

WHY NOT SIT ON THE COUCH?

2. The hosts proceeded to inquire about his next act:

“Why did you sit upon the couch when we invited you?” Apparently, they felt that it was inappropriate for him to sit on the couch and he should have politely refused the honor. To this inquiry Rav Huna replied, “Whatever the host asks you to do, you should do.”

Did the hosts indeed want him to sit in the finest seat in the house, or were they simply being polite? Is the host’s offer genuine, or does he really prefer that I refuse the offer? It is not unusual to face this type of predicament.

Rav Huna answers that when the host’s intent is unclear, one should assume that his offer is sincere and do as he suggests.

There is a clear exception to this rule. When one suspects that the host cannot afford his offer and is only making it out of embarrassment, one should not accept his offer. This is referred to as a seudah she’ainah maspekes libaala, lit., a meal insufficient for its owner (Rambam, Hilchos Teshuvah 4:4; also see Gemara Chullin 7b and Rashi).

DO WHAT THE HOST ASKS

Why should one do whatever the host requests?

Here are two interpretations of this statement of Chazal:

A. A visiting (nonpaying) guest should do whatever the host asks him to, since this is a form of payment for services rendered. In return for free accommodations, the guest should reciprocate by performing the tasks and errands the host requests of him (Bach, Orach Chayim 170).

In a sense, this parallels the modern practice of presenting the host with a gift. (One can find halachic sources for this practice in the Sefer Orach Meisharim 18:2.) The gift reciprocates the host’s kindness. However, the host often prefers different favors, such as babysitting, rather than a box of chocolates that his waistline can do without, or an additional bouquet of flowers that will soon wilt. Therefore, one’s reciprocation can consist of doing any appropriate favors for the host.

In a similar vein, if one has the opportunity to reciprocate hospitality, one should do so (Orach Meisharim 18:2). However, neither host nor guest may specify in advance that the hosting will be reciprocal because of concerns of ribbis, prohibited paying and receiving interest on a loan (Rama, Orach Chayim 170:13), since the one who hosts first has in essence extended his hospitality as a loan to the other!

A DIFFERENT APPROACH

B. Courtesy dictates that a guest in someone’s house should respect his host and fulfill his requests as Master of the house (L’vush). Rav Huna ruled that denying the host’s request to honor his guest contradicts the host’s authority as Master of the house. By sitting on the couch and accepting the honor, the guest affirms his host’s authority to honor whomever he wishes in his home.

In many societies, turning down a host’s offer of a cup of tea or coffee is considered insulting. If one is unaware of local custom, one should follow Chazal’s instructions as Rav Huna did.

IF THE HOST HAS DIFFERENT KASHRUS STANDARDS

What happens if the host and the guest interpret the laws of kashrus in different ways? Must the guest follow the host’s request to join him for a meal?

If the guest follows a stricter halachic opinion that the host, the guest should apprise the host. The host may not serve the guest food that does not meet the guest’s standard unless the food is obviously something he may not eat (Shach, Yoreh Deah 119:20). For example, if the guest observes cholov yisroel fully and the host follows the poskim who permit unsupervised milk in modern Western society, the host may not cook anything that does not meet the guest’s standards without telling him. However, he may place food on the table that is obviously not cholov yisroel. Similarly, if the guest notifies the host that he uses only food with a specific hechsher, the host may not serve him food that violates this standard.

Once a halacha-abiding host knows his guest’s standards, the guest may assume that the host is accommodating his standards and eat whatever is served without further questions (Shach, Yoreh Deah 119:20). This is included in Chazal’s adage, whatever the host asks you to do, you should do, since questioning the host’s standards unnecessarily is offensive. Offending someone is always halachically reprehensible, and certainly when he has done one a favor.

PERSONAL CHUMROS

On the other hand, if the guest has a personal halachic stringency that he would rather not divulge, he should not violate his chumrah and he is not required to divulge it (Shaarei Teshuvah 170:6; Ben Yehoyada).

Generally, one should be modest when it comes to any chumrah (Birkei Yosef 170:6). Of course, one should always be aware that taking on personal chumros comes at a price, and one would discuss the matter with a gadol prior to observing a chumrah. (See the important discussion on this point in Michtav Mei’Eliyahu Volume 3 pg. 294.)

EXCEPT LEAVE

Our editions of the Gemara Pesachim 86b have two Hebrew words appended to the end of the statement whatever the host asks you to do, you should do. The additional words are, chutz mi’tzei, except leave, and therefore the passage reads, Whatever the host asks you to do you should do, except leave. It is unclear if these words are an authentic part of the text as they are not mentioned in Mesechta Derech Eretz, the source of the original statement. Some very authoritative commentators (Meiri) take exception to it, and Tur and Shulchan Aruch both omit it. The Meiri reports that these words are an incorrect textual emendation added by clowns and should be disregarded.

Nevertheless, other authorities (Bach, Magen Avraham, Ben Yehoyada) accept these words as part of the text and grapple with different possible interpretations.

What does this text mean? I found numerous interpretations of this text, including six different interpretations in one sefer (Ben Yehoyada) alone! Several of these approaches assume that performing whatever the host requests means reciprocating his favors, the first approach I mentioned above. According to these approaches, the words chutz mitzei mean that the guest is not expected to perform any inappropriate activity for the host. This would include the host asking the guest to run an errand for him outside the house, which the guest may refrain from since it is unacceptable to ask someone to run an errand in a city with which he or she is unfamiliar (Bach, Orach Chayim 170).

Nevertheless, if the host requests the guest to do something that he would ordinarily not do because it is beneath his dignity he should perform it anyway (Birkei Yosef 170:5).

THE STRANGE CONVERSATION

We now revert to explaining the original conversation that transpired between Rav Huna and his hosts.

3. The hosts continued, “When we offered you the cup, why did you accept it the first time we offered it?”

To which Rav Huna replied, “One may refuse a small person, but one should not refuse the request of a great person.”

THE INCONSISTENT ANGELS

It is interesting to note that this particular rule of etiquette is based on a passage in this week’s parsha. When Avraham Avinu invited the angels to dinner they immediately accepted, whereas when his nephew Lot invited them they initially turned him down. Only after he begged them repeatedly did they accept his invitation (Breishis 15:1-5, 16:1-3). Why did they accept Avraham’s invitation immediately and initially turn down Lot’s offer? The Gemara (Bava Metzia 86b) answers because of this rule – one may refuse a small person, but one should not refuse a great person.

This halacha has ramifications for other non-guest situations. When someone is asked to lead the services in shul (usually called to daven before the amud), he should initially decline the offer as a sign of humility. However, if a great person, such as the Rav of the shul, asks one to lead the services, one should immediately agree.

TWO GULPS?

4. The hosts now inquired, “Why did you drink the small cup of wine we gave you in two gulps, rather than drink it all at once?”

Rav Huna countered, “The earlier authorities taught us that only a guzzler drinks a whole cup of wine at once, and arrogant people drink a cup with three sips. The proper way to drink a cup of wine is in two swallows” (Mesechta Derech Eretz Rabbah 8).

A reviis-size cup of wine, which is about three ounces, should be drunk in two sips; not all at once, and not in more than two sips. It is preferable to drink about half the cup each time rather than to drink most of it and leave just a small sip for afterwards (Magen Avraham 170:12). If the cup is smaller, the wine is very sweet, or the person drinking is very obese, one may drink the entire cup at one time (Gemara Pesachim 86b, as understood by Magen Avraham 170:13). When drinking beer, one may drink a greater amount in each gulp since beer is less intoxicating than wine; and certainly when drinking non-alcoholic beverages (Magen Avraham 170:13). On the other hand, if the drink is very strong, one may drink it much slower (Aruch HaShulchan 170:9). Thus it is appropriate to sip whiskey or other strongly intoxicating beverage slowly.

TURNING YOUR FACE?

5. Finally, his hosts asked, “Why did you not turn your face when drinking?” To this Rav Huna replied that only a bride should be so modest. What is this conversation about?

A talmid chacham should not eat or drink in the presence of many people (Gemara and Rashi, Bechoros 44b). The hosts felt that Rav Huna should not have eaten in their presence without turning to the side so that they could not see him eat. Rav Huna held that the halacha that a talmid chacham should not eat or drink in the presence of many people does not apply when one is eating a meal together with other people. However, a bride should not eat in a way that other people see her eating, even if they are all participating together in a festive meal (Tosafos, Bechoros 44b s.v. vi’ayn). Therefore, Rav Huna replied that only a bride should be so modest; for anyone else this is not considered modesty (Rashi, Pesachim 86b).

The halacha is that one should not eat in the street or marketplace (Kiddushin 40b), and on the other hand, one should not stare at someone who is eating or at the food that he is eating because it embarrasses him or her (Rambam, Hilchos Brachos 7:6; Shulchan Aruch Orach Chayim 170:4).

As we see, Chazal had tremendous concern that a person act appropriately in all circumstances. We should apply this lesson to our daily lives.

The Kosher Way to Collect a Loan

This article was published originally in the American edition of Yated Neeman.

Although it is a very big mitzvah to lend money, some people are reluctant to do so because they know of loans that were hard to collect. Must I lend someone money if I am not sure it will ever be repaid? What can I do if I loaned money to someone who seemed very honest and sincere, but now that it comes time to repay, he informs me that he is penniless? What may I do and what may I not do to collect my money? How can I guarantee that I get my money back?

Our goal in this article is to answer all these questions.

THE MITZVAH OF LENDING MONEY

The Torah requires us to lend money to a poor Jew who needs it (Rambam, Hilchos Malveh 1:1). This is stated in the pasuk, Im kesef talveh es ami, es he’ani imach, “When you lend money to my people, to the poor person among you” (Shmos 22:24). Chazal explain that the word “im” in this pasuk should not be translated as “If,” which implies that it is optional, but as a commandment, “When you lend…” (Mechilta). The poskim even discuss whether we recite a bracha on this mitzvah just as we recite one on tefillin, mezuzah and other mitzvos (Shu’t HaRashba #18). Although the halacha is that we do not recite a bracha, the mere question shows us the importance of the mitzvah of loaning money.

It is a greater mitzvah to lend someone money, which maintains his self-dignity, than it is to give him tzedakah, which is demeaning (Rambam, Hilchos Malveh 1:1). There is a special bracha from Hashem to people who lend money to the poor.

I should not become upset if a poor person wants to borrow money from me shortly after repaying a previous loan. My attitude should be similar to a storekeeper: “Do I become angry with a repeat customer? Do I feel that he is constantly bothering me?” Similarly, one should not turn people away without a loan, but rather view it as a new opportunity to perform a mitzvah and to receive extra brachos (Ahavas Chesed 1:7).

RICH VERSUS POOR

One should also lend money to wealthy people who need a loan, but this is not as great a mitzvah as lending to the poor.

FAMILY FIRST

Someone with limited available funds who has requests for loans from family members and non-family members, should lend to family members. Similarly, if he must choose whom to lend to, he should lend to a closer family member rather than to a more distant one.

WHAT IF I KNOW THE BORROWER IS A DEADBEAT?

I am not required to lend money if I know that the borrower squanders money and does not repay (Shulchan Aruch, Choshen Mishpat 97:4). It is better not to lend if I know that the borrower will probably not pay back.

THE RESPONSIBILITIES OF THE BORROWER

Someone who borrows money must make sure to pay it back. One may not borrow money that one does not think he will be able to repay. A person who squanders money and therefore does not repay his loans is called a rasha (Rambam Hilchos Malveh 1:3).

The borrower is required to pay his loans on time. If his loan is due and he cannot pay it, he is required to use his household items, if necessary, to pay his debt (Nesivos 86:2=?). Similarly, he may not make significant contributions to tzedakah (Sefer Chassidim #454). He may not purchase a lulav and esrog if he owes money that is due but should borrow one (see Pischei Teshuvah, Choshen Mishpat 97:8). He must use whatever money he has available to pay his debts.

It is strictly forbidden for the borrower to pretend that he does not have money to pay his debts or even to delay paying them if he does have the money, and it is similarly forbidden for him to hide money so that the lender cannot collect. All this is true even if the lender is very wealthy.

COLLECTING BAD DEBTS

Most people who borrow are meticulous to repay their debts and on time. However, it occasionally happens that someone who intended to pay back on time is faced with circumstances that make it difficult for him to repay.

THE PROHIBITION OF BEING A NOSHEH

There is a prohibition in the Torah, Lo sihyeh lo ki’nosheh, “Do not behave to him like a creditor.” Included in this prohibition is that it is forbidden to demand payment from a Jew when you know that he cannot pay (Rambam, Hilchos Malveh 1:2). The lender may not even stand in front of the borrower in a way that might embarrass or intimidate him (Gemara Bava Metzia 75b; Rambam, Hilchos Malveh 1:3).

However, if the lender knows that the borrower has resources that he does not want to sell, such as his house, his car, or his furniture, he may hassle the borrower since the borrower is halachically required to dispose of these properties in order to pay his loan. (See Shulchan Aruch, Choshen Mishpat 97:23 for a list of what items he must sell to pay his debt.) Furthermore, the lender may sue in beis din for the rights to collect these items as payment.

(Technically, it is not the borrower’s responsibility to sell the items and bring the cash to the lender; he may give them to the lender as payment. The lender must then get a beis din or a panel of three experts to evaluate the property he has received. If he needs to hire experts to make the evaluation, the expenses are added to the debt. Of course, the lender and borrower can agree to whatever terms are mutually acceptable without involving expert evaluation, provided that no ribbis [interest] prohibition is created. The vast subject of ribbis is beyond the scope of this article.)

The borrower is often in an unenviable position. He owes money that he would like to pay, but he is overwhelmed with expenses and he simply does not earn enough money to pay all his creditors. He knows he could sell his house or his furniture to pay up, but he really does not want to do that to his family. He should try to appease the lender in whatever way he can – asking him for better terms or for a delay, and he should certainly try to find other sources of income and figure out how to trim his expenses. But he should realize that he is obligated even to sell his household goods to pay off his creditors. Someone who uses his money to purchase items that are not absolutely essential and does not pay back money that is overdue demonstrates a lack of understanding of the Torah’s priorities.

The lender may not enter the borrower’s house to seize collateral or payment. Some poskim contend that the lender may seize property that is not in the borrower’s house or on his person (see Pischei Choshen Vol. 1 pg. 96). There are poskim who contend that if the borrower has the means to pay but isn’t paying, the lender may enter the borrower’s house and take whatever he can (Shu’t Imrei Binah, Dinei Geviyas Chov Chapter 2; Pischei Choshen Vol. 1 pg. 100). One should not rely on this approach without first asking a shaylah.

If the borrower claims that he has absolutely nothing to pay with, the beis din can require him to swear an oath to that effect (Rambam, Hilchos Malveh 2:2).

A lender who feels that the borrower is hiding money or property may not take the law into his own hands, but may file a claim in beis din. If the lender feels that the borrower will not submit to beis din’s authority, he should ask the beis din for authorization to sue in secular courts, but it is forbidden for him to sue in secular court without approval from a beis din.

HOW CAN I GUARANTEE THAT I GET MY MONEY BACK?

It is unpleasant to be owed overdue loans. The lender is entitled to be repaid.

Is there a way that I can lend money and guarantee that I get in back?

First of all, the lender must make sure that he can prove the loan took place. This is actually a halacha forbidding lending out money without witnesses or other proof because of concern that this may cause the borrower to sin by denying that the loan exists (Gemara Bava Metzia 75b).

All of this is only protection against a borrower denying that he borrowed, which is fortunately a rare occurrence. What we want to explore are ways that the lender can fulfill his mitzvah of lending to a needy person, while making sure that the loan does not become permanent.

By the way, one may lend money to a poor person with the understanding that if the borrower defaults, the lender will subtract the sum from his tzedakah-maaser calculation (Pischei Choshen, Volume 1, p. 4).

CO-SIGNERS

The most common method used to guarantee the repayment of a loan is by having someone with reliable finances and reputation co-sign for the loan. In halacha, this person is called an areiv. In common practice, if the borrower defaults, the lender notifies the co-signer that he intends to collect the debt. Usually what happens is that when the lender calls the co-signer, suddenly the borrower shows up at the door with the money.

There are several types of areiv recognized by halacha. The most common type, a standard co-signer, is obligated to pay back the debt, but only after one has attempted to collect from the borrower. If the borrower does not pay because he has no cash, but he has property, the areiv can legitimately claim that he is not responsible to pay. The lender would need to summon the borrower and the areiv to beis din, (probably in separate dinei Torah) in order to begin payment procedures. Most people who lend money prefer to avoid the tediousness this involves.

One can avoid some of this problem by having the co-signer sign as an areiv kablan. This is a stronger type of co-signing, whereby the lender has the right to make the claim against the co-signer without suing the borrower first.

The primary difficulty with this approach is that it might make it difficult for the borrower to receive his loan, since many potential co-signers do not want to commit themselves to be an areiv kablan.

ANOTHER APPROACH

Is there another possibility whereby one can still provide the chesed to the potential borrower and yet guarantee that the money is returned?

Indeed there is. The Chofetz Chayim (Ahavas Chesed 1:8) suggests that if you are concerned that the proposed borrower may default, you can insist on receiving a collateral, a mashkon, to guarantee payment.

Having a loan collateralized is a fairly secure way of guaranteeing that the loan is repaid, but it is not completely hassle-free. There are three drawbacks that might result from using a mashkon to guarantee the repayment of the loan. They are:

1. Responsibility for the mashkon.

2. Evaluation of the mashkon.

3. Converting the mashkon into cash.

1. Responsibility for the mashkon.

When the lender receives the mashkon, he becomes responsible to take care of it. If it is lost or stolen, the value of the collateral will be subtracted from the loan (Shulchan Aruch, Choshen Mishpat 72:2). If the collateral is worth more than the loan, the lender might be required to compensate the borrower for the difference. (See dispute between Shulchan Aruch and Rama ibid.) The creditor is not responsible for the mashkon if it is lost and damaged because of something that halacha considers beyond his responsibility.

2. Evaluation of the mashkon.

When keeping the collateral to collect the debt, the mashkon must be evaluated by a panel of three experts before it can be sold (Shulchan Aruch, Choshen Mishpat 73:15 and Ketzos), or alternatively, sold with the involvement of beis din (Shach), to protect the borrower’s rights. Some creditors find this step tedious.

However, there are methods whereby one can use a mashkon to guarantee a loan and avoid having the mashkon evaluated afterwards.

When arranging the loan, the lender tells the borrower of the following condition: If the loan is not paid when due, the buyer agrees to rely on the lender’s evaluation of its worth (Pischei Choshen, Vol. 1 pg. 145).

An alternative way is for the lender to tell the borrower at the time of the loan: If you do not pay by the day the loan is due, then retroactively this is not a loan but a sale. The collateral becomes mine now for the value of the loan money. This is permitted even if the mashkon is worth far more than the loan without any violation of ribbis (prohibited charging of interest), since retroactively no loan took place but a sale (Shulchan Aruch, Choshen Mishpat 73:17).=

3. Converting the mashkon into cash.

At times, lenders have asked me for a method whereby they can be certain to get their money back, and I have suggested the collateral method. Sometimes I receive the following response: I don’t want to be bothered with selling the mashkon to get my money back. If I think the borrower is a risk, than I would rather not lend to him.

Do we have the same attitude towards other mitzvos we perform? Do we say that we only want to perform mitzvos when they are without complications? Certainly not! However, the yetzer hora convinces us that lending money is a good deed that I need only perform when it is convenient and when I feel like being benevolent, not when it is going to result in a hassle.

SHLEMIEL THE BORROWER

Nachman once came to me with the following shaylah:

Shlemiel used to borrow money from Nachman regularly, and although Shlemiel always paid back, he often did so long after the due date. Nachman wanted to know what he could do about this situation. He wanted to perform the tremendous mitzvah of lending money, but he wanted his money back in a reasonable time.

I suggested to Nachman that he tell Shlemiel that the loan was available, but only if Shlemiel produced a mashkon and agreed to the above conditions. Since my suggestion, Nachman has been zocheh to fulfill the mitzvah of lending money to Shlemiel many times and not once has a loan been late! Think of how many brachos Nachman has received from Hashem because he is willing to subject himself to the “hassle” of transporting the mashkon to a secure place and being willing to sell it should the need arise!

Why do people view loaning money as an optional “good deed” rather than as a commandment? The Chofetz Chayim (Ahavas Chesed 2:8)= raises this question and mentions several excuses people make to avoid lending money. After listing these reasons, the Chofetz Chayim proceeds to refute each one of them. Simply put, the answer to this question is the old Yiddish expression, Ven Kumt to Gelt, iz an andara velt, “When people deal with their money, they tend to deal with things totally differently.” Truthfully, people find it difficult to part with their money, even temporarily. This is precisely why one receives such immense reward for lending. As Chazal teach us, lifum tzaara agra, “the reward is according to the suffering.”

The Fateful U-Turn

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

ACT I – The Fateful U-Turn

Location: THE HIGHWAY

Reuven missed his exit off the highway. Since it was a bright, clear day, he decided to make a U-turn to get back in the right direction. Although this was illegal, he did not consider it dangerous since the road was virtually deserted, except for a car coming in the other direction which seemed to be quite a distance away.

Reuven was mistaken. His car collided with the other vehicle. Fortunately, no one was injured, but both cars suffered significant damage.

The other driver, Shimon, considered Reuven responsible for the damage to his vehicle, although Reuven insisted that Shimon must have been speeding for the accident to have occurred. Shimon insisted that he was not speeding.

To complicate matters, the car Reuven was driving was not his own. That morning, his friend Yaakov had asked Reuven to drive him to the airport using Yaakov’s car. On the way to the airport, Yaakov mentioned that since he was leaving for a week, Reuven could borrow the car while he was gone.

After the accident, Reuven discovered that Yaakov’s car had no collision insurance, and worse yet, no liability insurance for any driver except Yaakov. Thus, there is no insurance coverage for the damage done to either vehicle.

Because Reuven would never have driven the car had he known it was uninsured, he claims that he never assumed responsibility for the value of the car when he agreed to borrow it.

Is Reuven liable for the damage to both vehicles? Although Reuven is over his head in debt, if he is halachically obligated to pay either Yaakov or Shimon, he will do so. But if he is not required to do so, he feels that he is not in a financial position to make the compensation.

Reuven, Shimon, and Yaakov submit the shaylah to a beis din for arbitration. They schedule an appointment and come prepared to present their cases.

ACT II – THE COURTROOM

Location: The offices of the beis din.

On the appointed day, the three litigants appear in the beis din. Shimon claims that Reuven must compensate him for the damage to his car, and that Yaakov should also be liable as the owner of an improperly insured vehicle. Reuven claims that Shimon is responsible for all the damages since the accident happened because of Shimon’s speeding. Yaakov claims that Reuven damaged his vehicle and is therefore obligated to pay for its repair.

Yaakov presents his claim against Reuven first, stating that he has claims against Reuven for two different reasons:

1. First, Reuven should be liable as the borrower of the car even if the damage was not his responsibility.

2. Second, Reuven is liable as a mazik, one who damages, since his negligence caused an accident.

Let us examine the validity of each claim separately, and then we will see what Reuven countered.

SHO’EIL

A sho’eil, a borrower, is responsible for almost any damage that takes place to the item he borrows, even if the damage is accidental and not caused by the borrower. (There are two circumstances where a sho’eil is not liable, but they do not apply here, and I am therefore omitting them from our discussion.) Yaakov claims that Reuven is responsible to make full restitution for the value of the car since he borrowed it.

REUVEN’S DEFENSE

Reuven turns to the dayanim and explains, “I believe that I am not a sho’eil according to halacha, but I have the halacha of a socheir, a renter, notwithstanding the fact that I paid no money. Furthermore, I claim that even as a socheir I am not responsible for the damages sustained as I will explain.”

WHAT ARE THE RESPONSIBILITIES OF A SOCHEIR?

A socheir is liable for damage if the item is lost or stolen, or if he is negligent, but he is not responsible for accidental damage. There is also another major difference in halacha between a sho’eil and a socheir that Reuven uses as an essential component of his defense, as I will explain.

WAS REUVEN A SHO’EIL OR A SOCHEIR?

In order to analyze this question, we need to explain why a sho’eil carries so much responsibility. The Gemara mentions that a sho’eil’s liability is so great because he gains all the benefits of the loan without any responsibilities in return. (This is called kol hana’ah shelo, “all benefits are to the borrower.”) Since the borrower receives all the benefits, the Torah obligates him to compensate the owner for any damage whatsoever, even if it was beyond his control.

However, any time the lender receives some compensation, even non-monetary, the arrangement is not kol hana’ah shelo and the borrower is not liable for accidental damage. In our situation, Yaakov received a chauffeured ride to the airport in exchange for Reuven’s borrowing the car. Halacha views this as if Reuven rented the car from Yaakov, paying him for the rental by driving him to the airport. This is enough to make Reuven into a socheir rather than a sho’eil, and exempts him from paying for accidental damages (see Shu’t HaRan #20).

BUT WAS THIS A CASE OF NEGLIGENCE?

Yaakov objects to Reuven’s defense. “Even if I received some benefit and you are not a sho’eil, you are still liable as a socheir because the damage was caused by negligence!”

However, Reuven has done his homework. He knows that there is another distinction between a renter and a borrower that we will now explain.

DID REUVEN ASSUME RESPONSIBILITY FOR THE CAR?

Reuven claims he would never have driven the car had he known it was uninsured. Therefore, he never assumed any responsibility for the car’s value and he is not liable for the damage. Does this defense have any merit?

The Gemara discusses a case where someone assumed responsibility for an item assuming it was worth far less than it actually is. If the item is subsequently lost, he is only responsible for as much value as he originally thought the item was worth (Shulchan Aruch, Choshen Mishpat 291:4). Thus, Reuven can legitimately claim that he was not responsible as a socheir of the car because he never assumed responsibility for its value.

BUT WHY DID REUVEN INSIST THAT HE WAS NOT A SHO’EIL?

Reuven first claimed that he was not a sho’eil because Yaakov had received benefit. Only then did he claim that he wasn’t even a socheir because he had never assumed any responsibility. This seems like an unnecessary step in his defense – let him simply claim that he never assumed any responsibility, whether as a sho’eil or as a socheir.

The answer is that there is a halachic difference between borrowing and renting. A borrower becomes responsible for all the damages even if he did not assume responsibility; that is, the fact that he uses the item without providing the lender any compensation makes him responsible (Machanei Efrayim, Hilchos She’eilah #1; Milu’ei Mishpat 346:8; cf. however Nesivos HaMishpat 346:8, who implies that even a sho’eil is not responsible under these circumstances). However, a socheir’s liability is limited to how much responsibility he assumed.

WHY IS A BORROWER DIFFERENT FROM A RENTER?

A borrower is responsible because of the concept of kol hana’ah shelo, “all benefits are to the borrower.” The circumstances are what make him liable, not necessarily his agreement. (Although the lender can agree to exempt the borrower from all damages, in the absence of such an agreement, the borrower is responsible for all damages.) Thus, a borrower claiming that he never assumed responsibility or that he was unaware of the liability would not be a defense. However, a socheir’s liability results from his agreement to be responsible as a socheir. Therefore, claiming that he never assumed responsibility is a valid defense.

Thus, Reuven claims that he is not responsible for having borrowed the car based on the following reasoning:

1. He is not a sho’eil, but a socheir, since Yaakov received benefit from the “loan.”

2. As a socheir he can claim that he never accepted responsibility for the value of the car because he assumed that insurance was covering the financial liability.

WHAT ABOUT A MAZIK, SOMEONE WHO DAMAGED SOMEONE ELSE’S PROPERTY?

Reuven has successfully demonstrated that he is not obligated to pay as a borrower. However, this does not exonerate him from Yaakov’s claim that he damaged the vehicle. His defense against this claim was that Shimon caused the accident. Is this claim a sufficient defense? Moreover, is it Yaakov’s responsibility to prove who caused the accident in order to collect the damages from Reuven?

First we must clarify two shaylos:

1. If someone damaged property in a traffic accident, is he considered a mazik who must pay for damages?

2. When two parties are involved in a collision, how do we assign financial responsibility?

The following incident that happened over seven hundred years ago resolves one of our questions.

ACT III – SOME HORSEPLAY

Location: Thirteenth Century Germany

The Rosh (quoted by Tur, Choshen Mishpat 378:9) discusses the following din Torah:

During a wedding celebration, the groom was riding a very expensive mule that he had rented from a non-Jew for the occasion. (This was the thirteenth-century equivalent to renting a white Cadillac for a newlywed couple.) One of his well-wishers galloped up the street on horseback, unintentionally crashing his horse into the groom’s mule. Baruch Hashem, the groom emerged unscathed from the collision, but the mule suffered severe damage. Under civil law, the groom, as renter of the mule, was obligated to pay not only damages but also a sizable penalty. Must the reckless rider compensate the groom for the damages and the penalties?

The horse rider refused to pay, contending that he was exempt from damages since he was riding on a public thoroughfare. Furthermore, he had not done the damage; the horse was responsible. He claimed that this case is comparable to that of an animal that tramples on property while walking through a public area. In that instance, the halacha does not obligate the owner of the animal to pay if his animal tramples property left in a public area.

The Rosh ruled that there is a difference between an animal walking and a rider galloping on a horse. In the latter case, the rider himself is the damaging party, and the horse is the “tool” with which the rider damaged. A person is required to use a public thoroughfare in a responsible way, and galloping on a horse when other people are nearby is irresponsible. Since the rider acted irresponsibly, he must pay damages. (For reasons beyond the scope of this article, the Rosh absolved the rider from paying for the penalties that the groom incurred.)

When two cars collide, who is responsible for the damage?

Based on the above ruling, any damage performed by an automobile is considered damage performed by its driver, and the automobile is considered his tool. However, this does not tell us how we determine which driver is responsible, and for how much damage.

For this we will have to refer to an older discussion that traces back to the time of the Gemara.

ACT IV – A COLLISION

Location: Bavel, Seventeen Hundred Years Ago

The Gemara (Bava Kamma 32a; 48a) and the poskim discuss at length the case of two people colliding into one another on a city street, both of whom sustain injuries. Who is responsible to pay for the damages?

We will simplify a very complicated discussion by providing some general rules that apply to our case:

If one party acted responsibly and the other acted irresponsibly, and the two parties collided, the party who acted irresponsibly is liable for damages. Thus, if one person is running through the street and the other is walking, and the two people collide, the running person is liable since that is considered acting irresponsibly. (There is an exception. The halacha acknowledges that someone is permitted to run through the streets late Friday afternoon to get his Shabbos jobs done. This running is not considered irresponsible.)

If both parties acted irresponsibly, the poskim dispute how we determine liability. Rashi (Bava Kamma 48b s.v. chayovin) rules that when the two parties collided into one another, each person is liable for the damage he did. Thus if Levi and Yehudah collide, Levi is responsible for Yehudah’s injuries and Yehudah for Levi’s.

Tosafos (Bava Kamma s.v. shnayim) disagrees, contending that in a case where both parties acted irresponsibly and the damage was accidental, neither party must pay for damages, since the damaged party also acted negligently. However, if someone injured or damaged intentionally he must pay even if the other party was negligent.

How do we paskin?

The Shulchan Aruch (378:7) rules like Rashi whereas the Rama (421:8) rules like Tosafos.

Let us now apply the rules just mentioned to our case. By his own admission, Reuven made an illegal turn, which certainly qualifies as negligent driving. Thus, even if we accept Reuven’s claim that Shimon was speeding, it is still a case of both drivers acting irresponsibly. According to Rashi’s opinion, this would still make Reuven responsible for the damages to Shimon’s vehicle. In addition, Reuven would be responsible for the damage to the car he was driving since he acted negligently. Reuven is claiming that Shimon should be responsible for those damages, a claim that he cannot substantiate.

According to Tosafos, Reuven is claiming that both parties contributed to the damage and that therefore he is not liable for the damages to Shimon’s vehicle. However, he would certainly be liable for the damages that happened to the car that he was driving.

This is all assuming that we accept Reuven’s contention that Shimon was speeding. However, Reuven cannot prove that Shimon was speeding, and Shimon denies it. Since we know that Reuven made an illegal turn, the beis din ruled that Reuven acted negligently and is liable for the damage to both cars. Since there is no proof that Shimon was negligent, we cannot make any claim against him.

ACT V – EPILOGUE

Reuven was understandably disappointed with the beis din’s decision. However, as a G-d fearing Jew, he knows that he is bound by their psak. Thankfully, there was only property damage involved and he did not inadvertently suffer or cause any bodily harm. He now davens for Hashem’s help that he continues his driving career with no further incidents or accidents.

Planning in Advance – Advice for the Chesed Doer

Sometimes performing chesed can end up causing unexpected financial distress. However, a little bit of prevention can go a long way in avoiding this unplanned mishap.

Question #1: The Automobile Delivery

Mrs. Rosenberg’s *(all names have been changed) son, Yanky, a very straight and serious yeshiva bachur, sometimes comes home from yeshiva driving cars that are not his own. He told her that he is doing a favor for a businessman who needs these cars transported from place to place. Mrs. Rosenberg wants to know if Yanky is running any risk should something happen to the cars while in transit.

Question #2: The Money Transporters

2A. Shifrah commutes to work along a route that includes two branches of a local business. The owner asked her if she could convey money back and forth between his two offices. Shifrah asks me if she bears any halachic liability while performing this favor.

2B. Yosef is traveling to Eretz Yisroel, and Mrs. Goldstein asked him to bring some Chanukah gelt to her nephew. Rabbi Friedman asked Yosef to bring some money to his daughter there, and Mr. Gordon requested that he transport money to his son. Although Yosef initially put all the money together, he later decided to separate it during the trip for added security. Upon arrival in Israel, he discovered that some of the money was stolen. Must Yosef replace the stolen funds? If he does not, how do we determine whose money was stolen?

Question #3: The Wonderful Women of N’shei.

The local N’shei chapter conducted one of their wonderful activities to raise money for tzedakah. For table décor, they borrowed some expensive vases. Sarah picked up the vases, and transported them to the hall. Rivkah was in charge of placing them on the tables, and Rochel was responsible to return them. Leah, who was in charge of final clean-up, discovered that Rochel forgot to take the vases and now finds herself in a predicament. It is too late to call anyone to find out where to take the vases. If she leaves the vases behind, no one will return them, and they will certainly be lost or broken. There is no room in her small, cramped house to keep these vases safely from her frolicking children even until she can find someone to pick them up tomorrow. What should she do? With no choice, she transports them to her own house, hoping for the best. She calls me the next day, reporting that unfortunately some of the vases were broken before she could return them. Is she liable?

In all of these cases, someone doing a big chesed may have unwittingly stumbled into a major liability. Should one avoid performing chesed because of such fears? Of course not! But one should be aware of one’s liabilities and how to limit them.

THE BASICS:

In each of the above cases, the person doing the chesed became a shomer, because he or she assumed the responsibility to take care of someone else’s object. We must first review the basic rules of shomrim, and then see how these rules apply in each of our cases.

The Torah presents us with three basic categories of shomrim:

A. The Shomer Chinam: This shomer is someone who takes care of an item without receiving any financial benefit at all, even indirectly — and who is not permitted to use the item. Although he is unpaid, this shomer is still responsible to pay for the item if it was damaged due to his negligence or if he used it for himself (which he is not allowed to), but he is not responsible if he took appropriate care and yet the item was damaged or disappeared (Shulchan Aruch Choshen Mishpat 291:1). However, even if the shomer chinam took care of the item responsibly, the owner can still request that the shomer swear an oath that he/she indeed was careful, that he/she did not use the item, and that he/she is not still holding it (Shulchan Aruch Choshen Mishpat 295:1-2).

B. The Shomer Sachar: This is anyone who takes care of an item in return for some financial benefit. This includes someone who rents something and also a craftsman who repairs an item, since in both of these cases the person is responsible to take care of the object and receives compensation for his work. A shomer sachar is responsible to pay if the item is lost or stolen, but he is not obligated to pay if the item became lost or damaged through an accident beyond his control (Bava Metzia 93a). Anyone who receives some benefit while assuming responsibility for an item is included in this category, including a repairman or a renter (Bava Metzia 80b).

C. The Sho’el: This is someone who borrows an item and receives benefit without paying. He is responsible to pay back for any damages that happen to the item, even if the damage is beyond his control. Since he is receiving benefit gratis, he is responsible to make sure that he replaces the item to its owner. There are two situations where the Sho’el is not obligated to pay, but we will not discuss them in this article.

Having discussed some of the basic halachos, let us see how these halachos affect the cases I mentioned at the beginning of this article:

Question #1: The Automobile Delivery

When Yanky Rosenberg needs to travel between cities, he often drives cars for a car dealer he knows. This arrangement seems to benefit both parties – it provides Yanky with free transportation and provides the dealer with an inexpensive driver. Mrs. Rosenberg, however, is concerned about Yanky’s potential liability . Her concerns are very valid because Yanky has the halachic status of a shomer sachar, since he receives transportation, which is definitely worth money, in exchange for transporting the vehicle. Therefore, if the car is stolen during the trip, Yanky is responsible in full for the automobile, and he is also responsible for any damage caused by his negligence. For example, if the car is involved in an accident while Yanky is driving, he is responsible for the damages if his negligence caused the accident.

After finding this out, Mrs. Rosenberg was very concerned as she does not want Yanky to be halachically responsible for the automobiles. I told her that there is a simple solution. Yanky can simply tell the car dealer that he is assuming no responsibility for the vehicles. Although the Torah rules that a shomer sachar is usually responsible for theft and similar losses, the two parties can negotiate a different arrangement if they both agree (Mishnah Bava Metzia 94a). Thus, every shomer has the right to negotiate his own deal to assume either less or more responsibility than the Torah usually assigns. If Yanky tells the automobile dealer that henceforth he is assuming no responsibility for the cars he drives and the dealer agrees, Yanky will no longer be responsible for any loss, theft, or damage caused by his negligence.

Of course, the owner may no longer want Yanky to transport the automobiles under such an arrangement. Alternatively, Yanky and the dealer may decide to negotiate an arrangement that limits Yanky’s responsibility. Whatever they decide, at least all parties will know what to expect in the event that there is an unfortunate incident.

Question #2: The Money Transporters

A neighborhood business owner asked Shifrah to transport money for him from one location to another. If Shifrah receives any compensation for this favor, such as the business owner pays for her gas, she becomes a shomer sachar who is obligated to pay for any theft, loss or negligence. If she receives nothing for her kindness, she is still a shomer chinam. Although her liability is far less, she is still responsible for the loss of the money if she is negligent. Furthermore, should the money be stolen, she may be obligated to swear an oath that she was not negligent. Since most religious people are hesitant to swear oaths, this could present a problem for Shifrah.

Should Shifrah avoid the entire issue and refrain from transporting the money?

I told Shifrah that she should tell the business owner that she assumes no responsibility for his money in any way, and that he absolves her of any need to swear if the money is lost or stolen even if she is negligent. Shifrah explained to the business owner what I had told her, and he agreed that she should carry absolutely no responsibility whatsoever for the money. Now Shifrah can transport the money as a chesed, knowing that she will incur no liability whatever happens.

Yosef, who is transporting money for people on his trip to Eretz Yisroel, did not tell Mrs. Goldstein, Rabbi Friedman or Mr. Gordon that he was not assuming responsibility for transporting funds. Thus, he was a shomer when the theft occurred. We need to determine whether he was a shomer chinam or he was a shomer sachar, who receives some benefit for being a shomer. If Mr. Gordon gave Yosef a ride home one day in the course of bringing Yosef the money, Yosef might become a shomer sachar for the entire sum of money entrusted him by Mr. Gordon if the ride was partially in exchange for transporting the money.

Even if Yosef qualifies as a shomer chinam, this does not mean that he has no liabilities. First, we must determine that he was not negligent according to halacha’s definitions. The halachic definition of negligence when taking care of money is very stringent. For example, the Gemara rules that one who is responsible for money must hide it in a place where a thief would almost certainly not find it, even if he does not hide his own money so securely. In the time of the Gemara, this meant that a shomer had to dig a deep hole in the floor of his house (remember that the floors were made of earth) and bury the money there, thus creating a hiding place that is almost impossible to locate. Storing the money anywhere else qualifies as being negligent and makes one liable. Later, when burglars began digging beneath houses in search of hidden valuables, Chazal ruled that burying valuables was considered negligent and the only responsible way to hide them was in certain specific hiding places in the wall of the house where one could not tell that the wall was hollow! (Gemara Bava Metzia 42a)

When transporting money for someone else, the Shulchan Aruch (Choshen Mishpat 291:20) rules that one must keep the money tied in a bundle in your hand or in a place that you can always have your eyes on it. However, placing someone else’s money for safekeeping in a seemingly secure place behind you, such as in a zipped-closed back pocket, is negligent. Presumably, today we would apply different definitions for what is considered a secure place. Thus, it is possible that transporting money for someone without keeping it in a money belt or some other very secure fashion may be negligent.

Even if Yosef is halachically not negligent, he still might be required to swear an oath that he secured the money appropriately and that it was stolen.

Assuming that Yosef is not responsible, we need to determine whose money was lost. This may depend on several scenarios. Where was the money put? Did he keep each person’s money in a different place? Did he keep his money together with their money?

At this point, I advised that all four parties (Yosef, Mrs. Goldstein, Rabbi Friedman and Mr. Gordon) agree to submit the shaylah to one rav who could then rule whether Yosef is obligated, and if he is not, how to divide the remaining money among the three claimants. Since they did not choose me to be their arbiter, I do not know what the final decision was.

By the way, this shaylah could have been resolved very simply if Yosef had told Mrs. Goldstein, Rabbi Friedman and Mr. Gordon that he was not assuming any responsibility for the money, as I advised Yanky Rosenberg and Shifrah to do. In this situation, one would only have to resolve how the recipients divide the remaining money.

THE WONDERFUL N’SHEI LADIES

We still need to determine which, if any, of the wonderful N’shei ladies is responsible to pay for the broken vases.

To review the case: Sarah borrowed vases for a N’shei function and transported them to the hall. Rivkah was responsible to place them on the tables, and Rochel was supposed to return them, but she forgot. Leah discovered the forgotten vases, took them home against her better judgment, and some of them were broken before she could return them. Who is liable for the vases?

Again, here too a bit of advance planning would have been very helpful. When Sarah went to borrow the vases, did she clarify that she was borrowing them on behalf of N’shei? Did N’shei authorize her to make the organization responsible? Who within N’shei can authorize making the organization responsible for borrowing an item?

If we can determine that Sarah was authorized to borrow the vases on behalf of N’shei, and the lender understood this and agreed to it, then Sarah would not be personally responsible for the vases. However, if no one clarified these issues, Sarah is the legal borrower of the vases.

Did Sarah have permission to give the vases to someone else? If she did not, then she is responsible regardless of who was subsequently negligent with the vases. However, if the lender understood that other people would be using the vases, then Sarah is not the only party responsible, and Rivkah would become responsible as soon as she began placing the vases on the tables (see Shulchan Aruch, Choshen Mishpat 291:22).

But then, you’ll tell me, Rochel should be responsible for not returning the vases!

However, here we have an interesting problem. Although Rochel forgot to pick up the vases and return them, she technically never became responsible for the vases. This is because of the following halacha in the laws of shomrim. According to most opinions, a shomer only becomes responsible when he or she picks up the item or if someone places the item in his or her jurisdiction. This is called that the shomer made a kinyan on the object. Since Rochel never picked up the vases and never made a kinyan on them, she never became responsible for them (Shitah Mekubetzes, Bava Metzia 98b, quoting Raavad; Shulchan Aruch, Choshen Mishpat 303:1).

There is a dissenting opinion that contends that the responsibility of a shomer can occur without making a kinyan on the object, but only in the following way. The shomer assumes responsibility for the item and the person who owns it or was previously responsible for it stopped assuming responsibility for the item. According to this opinion, the fact that the shomer assumes responsibility for the item and the owner walks away makes the shomer responsible (Rosh, Bava Metzia 8:15; Rama, Choshen Mishpat 340:4; see Shulchan Aruch Choshen Mishpat 291:5 who cites both opinions).

However this did not happen here, since Rochel did not assume responsibility for the vases at the time that Rivkah relinquished responsibility.

Thus, at the time that Leah found the vases on the table, no one was assuming responsibility for them. The responsible party at this moment is either Sarah, who originally borrowed them, or Rivkah, who was the last person to take responsibility. This would depend on whether the lender of the vases assumed that several people would be in charge of them. If the lender understood this, then the responsibility transferred from Sarah to Rivkah, and if not, Sarah remains the responsible party.

Thus, when Leah found the vases, she was doing a favor either for the organization, the owner of the vases, for Sarah or for Rivkah. In any of these instances, she did not want to assume responsibility, but simply wanted to save them from certain loss or damage. Does this release Leah from legal responsibility?

I have been unable to find clear sources that discuss this particular shaylah. I discussed this shaylah with some prominent poskim, and received differing opinions. One contended that Leah is indeed responsible for the vases, notwithstanding her hesitation at taking them. Another assumed that Leah is not responsible since they would have been certainly lost had she not taken them and she took them only because she felt that maybe this way they would not be destroyed.

I suggested to these wonderful women that they establish a future policy that the organization assumes responsibility for any items borrowed on its behalf, and that they arrange that any losses of this type be subtracted from the profits that the benefit brought in.

As we can see, the laws regarding responsibility for items are very complex, and sometimes lead to surprising conclusions. Among our cases, each participant was performing a chesed that could easily have created a large financial responsibility. This helps us highlight the importance of taking care of the property of others. While we certainly shouldn’t hesitate in performing acts of chesed, recognizing and preparing for the halachic ramifications of our actions is undoubtedly worthwhile. Of course, if one’s act of kindness unfortunately results in an unexpected predicament, he or she should not regret the act of chesed performed but rather accept to better protect oneself in the future.

What I Borrow, I Must Surely Return

In Parshas Mishpatim, the Torah teaches us the responsibilities we assume when watching or borrowing other people’s property. Personal experience has demonstrated that most people are unfamiliar with the halachic obligations entailed in borrowing.

SHE’EILAH VS. HALVA’AH

Hebrew uses two different words for borrowing, she’eilah and halva’ah, which describe two different types of transactions with major legal distinctions. She’eilah means borrowing an item that will itself be returned. In a she’eilah, the pikadon, the item loaned, remains the property of the lender, and the borrower has rights to use it. (The borrower is called the sho’el and the lender is called the mash’eil.)

Halva’ah, on the other hand, refers to an item that will not be returned. Rather, the borrower uses the item and returns its value or a replacement item. Although often people think that only borrowing money is considered halva’ah, borrowing eggs is also halva’ah since they will be eaten and different eggs will be returned. Similarly, borrowing any item that will not be returned intact is halva’ah. In a halva’ah, the borrower becomes the owner of the loaned item and assumes financial responsibility to repay the lender. Once the borrower receives the loaned item, the lender loses his legal right to ask for the item back. (An exception to this is if the item is loaned in error, for example, if I loan someone an item that is more valuable than I intended.) This is in contrast to an item given as a she’eilah where the borrower assumes responsibility to care for the item and returns it intact when the loan is over.

At times, borrowing money can be she’eilah and not halva’ah. For example, if I borrow a rare coin for an exhibit, it is understood that I do not intend to spend it and that I will return the same coin. Therefore, it has the laws of she’eilah.

OTHER DIFFERENCES BETWEEN SHE’EILAH AND HALVA’AH

There are many other halachic differences between she’eilah and halva’ah. For example, the borrower of a halva’ah that has no specific repayment deadline automatically has 30 days to repay the loan (Choshen Mishpat 73:1). However, an item lent as a she’eilah without specifying a length of time must be returned as soon as the owner wants it back (Shulchan Aruch, Choshen Mishpat 341:1).

Charging money for she’eilah is not prohibited; this is called rental. In this case, the “borrower” is now a “renter” and is less responsible for the item than a borrower is.

However, charging for a halva’ah is considered interest and is prohibited because of ribbis. It should be noted that in the case mentioned above where a coin was borrowed for an exhibit, one may charge a rental fee for the coin without incurring the prohibition of ribbis since it is a she’eilah and not a halva’ah (Yoreh Deah 176:1). (There are specific other rules that must be followed in these circumstances to avoid ribbis that are beyond the scope of this article.)

The following story illustrates a case where money was loaned as a pikadon and not as a halva’ah.

Reuven was negotiating a business deal which required investing a significant amount of his capital. The potential partner insisted on proof that Reuven could produce the required funds. Although Reuven had sufficient resources for this purpose, it was easier for him to “rent” money from a third party as a pikadon. The agreement was that he would not use the money and would return the very same banknotes to the lender.

Two shaylos are involved in this case. 1. Is this act geneivas da’as, deception, since Reuven is showing the partner someone else’s money? (This shaylah will, IY”H, be discussed in a future article.) 2. Is there a problem of ribbis?

Reuven may rent the money because he does not have the right to spend it; rather, he must return it intact. Therefore, the transaction is a she’eilah and not a halva’ah, and there is no ribbis prohibition.

We will discuss the halachos of ribbis at a different time, I”YH. For the rest of this article, we will focus on the halachos of sho’el, someone who borrows an item that will itself be returned.

RESPONSIBILITIES OF A BORROWER

In general, someone who borrows an item becomes fully responsible for its welfare. As the Torah says, if he borrowed an animal and it became injured or died, the borrower must repay, even if he was not negligent.

I borrow a friend’s laptop computer for a business trip. I take exceptional care of the laptop since it is someone else’s property, even making certain to put it in the hotel safe when not using it. While I am away one day, a fire breaks out in the hotel and the computer is irreparably damaged. Although the damage was accidental, I am still obligated to pay for the computer.

But why should I be obligated if something happened that was beyond my control? The damage was no fault of mine!

Although the details of hilchos sho’el are basically a g’zeiras hakasuv, a declaration of the Torah, there is a rationale behind these rules. When I borrow something, I receive a pure gain from the transaction since I can use the item without giving the lender anything in exchange. Therefore, the Torah obligates the borrower to ensure that the owner receives his item back, even when the borrower is not responsible for the damage (see Gemara Bava Metzia 94b; Shu”t HaRan #20).

We will later discuss two circumstances where the borrower is not responsible to compensate for the loss.

CAN I LIMIT MY RESPONSIBILITY?

Someone wants to borrow my car, but does not want to be responsible for anything that might happen to it. According to halacha, while he is borrowing my car, he is responsible if it is stolen, suffers damage from a storm or fire or is hit by another car.

Can we arrange to absolve the borrower from this responsibility?

Yes. The two parties can agree to limit the borrower’s responsibility to whatever level they are comfortable with. This is referred to as a tnai she’b’mamon, condition included in a business agreement, which is fully valid in halacha. The Mishnah states that a borrower may stipulate that he is not responsible to pay for damages even if he is negligent (Bava Metzia 94a).
SOME INTERESTING SHAILOS

Someone once asked me the following shaylah. Their yeshivah bachur son traveled back and forth between their hometown and his yeshivah, often transporting automobiles for a frum car dealer. Each side considered this an ideal arrangement – the son had free transportation and the dealer had his shipping needs serviced very inexpensively. However, I pointed out that although the son is not considered a “sho’el” (who is responsible even for accidental damage, as explained above) since the dealer also gains from the arrangement, the son is still responsible for the total value of the car if he acts negligently. (Whether he is responsible to replace the car if it is stolen is dependent upon details that are beyond the scope of this article.)

Needless to say, his parents were rather concerned about their son assuming this level of financial responsibility. I explained that their son should negotiate with the dealer exactly how much responsibility he was accepting.

My wife was once asked to transport a large sum of money on a journey. Although she was doing the other person a complete favor, she would still be responsible for negligence. We told the person that she was assuming no responsibility whatsoever, and he agreed. Since we made this condition, she could not be held responsible no matter what happened.

Similarly, someone who borrows an item may specify to the owner that he is not assuming full responsibility for the borrowed item, and this absolves him if the owner agrees. Of course, the owner may not want to lend the item if the borrower does not assume full responsibility.

DOES THIS ARRANGEMENT NEED TO BE IN WRITING?

No, an oral agreement or understanding between the two parties is perfectly sufficient. The main advantage of a written agreement is to prevent misunderstanding or disagreement about the terms of the agreement.

But one second! Doesn’t the Torah require the sho’el, borrower, to pay for damages? How can the Torah’s instructions be pushed aside?

There is a major difference between the financial rules established by the Torah and its prohibitions. In business arrangements, two parties may create their own terms. Thus, an employer can agree to give his employee benefits beyond what halacha requires and be obligated to provide them. Similarly, when a couple marries, the husband assumes responsibility to support his wife. However, if the two choose to marry without this responsibility, they may do so (Gemara Kiddushin 19b).

However, two parties cannot make a business agreement that violates a Torah prohibition. Therefore, one cannot create a contract that charges interest, ignores the Shmittah time limit for collecting debts or authorizes using non-halachic courts for adjudication. These cases all involve Torah-ordained prohibitions, and therefore cannot be eliminated by a “deal” between the two parties.

WHEN IS A BORROWER NOT RESPONSIBLE FOR DAMAGE?

I mentioned above that there are two circumstances whereby the borrower is absolved from paying for the damage. The Gemara calls these two cases “be’alav imo” literally, “the owner is with him,” and “meisah machmas melacha,” which means “the loaned animal died because of the work.”

The basis of each of these two pturim, absolutions, is totally different and both need to be explained.

BE’ALAV IMO

Be’alav imo means that if the lender was working for the borrower when the pikadon was borrowed, the sho’el is absolved from paying for any subsequent damage. According to the halacha, this applies only if the owner was working when the she’eilah began. However, if the owner began work after the loan was begun, the borrower is fully responsible (Bava Metzia 94a).

This rule sounds very strange. What is its rationale?

We generally divide mitzvos into two categories, bein adam lachaveiro, mitzvos between us and our fellow men, and bein adam laMakom, mitzvos between us and Hashem. We are not surprised when mitzvos bein adam laMakom are beyond our comprehension and based on gezeiras hakasuv, decrees of Hashem in His Torah. For example, we never question why the Torah commanded holding an esrog on Sukkos and not a lemon – we know that the Torah’s mitzvos are beyond our comprehension. Nor do we ask why the flimsy schach on a sukkah must come from plant growth. We understand that these halachos are gezeiras hakasuv.

However when we it comes to bein adam lachaveiro, we expect to understand them. Indeed, most halachos of civil law are very comprehendible and include relatively few halachos based on gezeiras hakasuv. However, there are some exceptions and the rule of be’alav imo is one of them. The Torah states that under these circumstances, the borrower need not pay, even though we cannot comprehend the difference.

Nevertheless, several rationales have been suggested for the law of be’alav imo. In other words, even though it is a gezeiras hakasuv, we can derive certain hashkafic concepts from these laws. However, we must realize that these rationale should not be considered as “reasons” for the mitzvah. After all, do we think that we can comprehend the reasons for Hashem’s mitzvos? As the Sefer HaChinuch explains, the words ta’am hamitzvah should be translated as the taste of a mitzvah, rather than the reason for a mitzvah. This is because we can never explain why Hashem gave us mitzvos. We can only suggest ideas that will help us grow while we observe the mitzvos that Hashem has granted!

Similarly, the ta’amim given to explain be’alav imo should be understood as tastes, ideas that illuminate these halachos.
That being said, we can now present a ta’am suggested for the law of be’alav imo. Some explain that since the owner is being employed by the borrower, the borrower does not assume that he is responsible for the item borrowed. Rather, he assumes that the owner is taking care of his own item (Chinuch, Mitzvah 60). Under these circumstances, the Torah does not require the borrower to pay for damage done to the loaned item.

MEISAH MACHMAS MELACHA

The other occasion when a borrower is absolved from paying is “meisah machmas melacha,” literally, “the loaned animal died because of the work.” This is based on a logical concept that if the borrower had express permission to use the borrowed item for a certain purpose, he should not be penalized for utilizing it for that purpose (Tosafos; Nimukei Yosef).

There is an alternative explanation for meisah machmas melacha that contends that the borrower has the right to assume that a borrowed item can withstand normal wear and tear. If the pikadon did not withstand normal use, then we presume that it was inferior and the borrower is not responsible for the loss (Ramban; Sma 340:3).

A LOANED CAT

The Gemara discusses a strange case of someone who borrowed a cat to rid his house of unwanted mice. A din Torah was called when the mice killed the cat instead and the mash’eil claimed that the borrower must pay him for his loss! The Gemara concludes that the borrower is exempt because there must have been something wrong with a cat that was overpowered by mice (Bava Metzia 97a).

The following case is discussed by poskim. The residents of a threatened town borrowed weapons to defend themselves. They were defeated and the weapons were confiscated. Must they pay for the weapons?

The poskim dispute this issue. Some rule that they are exempt because the items were borrowed specifically for use in self-defense and the loss is categorized as meisah machmas melacha. Others contend that they are obligated to pay since the weapons were not inferior (Sma 340:8 and Shach ad loc.).

I was recently asked a shailah about someone who borrowed a power saw that was damaged during use. Is this considered meisah machmas melacha?

The halachic issue is to determine whether the borrower used the saw in a normal fashion, in which case he would be exempt from paying, or whether he perhaps abused the appliance, in which case he is obligated.

A FEW UNFAMILIAR HALACHOS ABOUT BORROWING

I have discovered that there are several halachos of which even knowledgeable people are unaware.

If I borrowed an item for a specific purpose, may I use it for something else?

In most instances, the answer is no. It is prohibited to use the pikadon for a different job without permission, even for a job that involves less wear and tear than the task for which it was borrowed (Shulchan Aruch, Choshen Mishpat 341:7). Some poskim permit using the pikadon for a job that is clearly less taxing on the tool, but all agree that I may not use it for work that might be equally stressful (Taz 340:1; Sma 341:20).

RETURNING THE BORROWED ITEM

Many people are unaware that a borrowed item is not considered returned until the lender knows about it (Choshen Mishpat 340:8). Therefore, if I borrow a hammer from my neighbor and return it to his house, I have not discharged my obligation until he knows that it has been returned. If it becomes damaged in the interim, I am still responsible to pay!

I borrowed a sefer from someone. When I came to return it, his children told me that the owner had gone on vacation. Consequently, I am responsible for the sefer until he finds out that I have returned it to his house.

BORROWING COLLATERAL

Reuven borrowed money from a non-Jewish bank and placed a valuable painting in the bank’s vault as collateral. Knowing that the painting was worth far more than the loan, Shimon asked Reuven if he could borrow some money from the bank, using the painting as collateral for his loan as well. Both Reuven and the bank agreed. Subsequently, a massive explosion at the bank destroyed the painting. According to secular law, neither Reuven nor Shimon were obligated to pay back the loans since the collateral was not returned. (Incidentally, according to halacha, if the lender was Jewish, he would be obligated to repay the loan since the lender was not at fault for the loss.)

However, Reuven wants Shimon to compensate him for the painting, claiming that Shimon benefited from his loss. Reuven claims that Shimon “borrowed” the painting as collateral, since without it Shimon could not obtain his loan. Therefore, Shimon should have to compensate Reuven since he borrowed an item that he did not return. Does Reuven have any basis for his claim?

According to halacha, Shimon has no responsibility to compensate Reuven. The painting was in the bank’s vault because of Reuven’s loan, not because of Shimon’s (Mordechai, Bava Metzia #371; Rama, Choshen Mishpat 340:1).

However, if Reuven had never borrowed from the bank, but Shimon had used the painting as collateral, Shimon would indeed be responsible for it.

We have touched on some of the halachos involved when borrowing. This certainly indicates how much we have to know in order to observe them correctly. We should always bear in mind that the Gemara advises someone who wants to become a great tzaddik to ensure that he is highly familiar with all the halachos of damages!

The Dry Cleaner and the Gown

The female voice on the other end of the line sounded very familiar. Her voice was full of anger and disappointment. It took me a few minutes to discern what she was trying to communicate.

Once I identified the voice, I realized that it was that of a woman I knew well who is usually very rational. I also began to understand why she was so upset. Mrs. Stein had been expecting to wear a specific, elegant dress for a family simcha and had brought it to the dry cleaner to get it ready. While she was there, she pointed out some stubborn spots on the delicate fabric.

“The dry cleaner managed to remove the stubborn stains,” Mrs. Stein told me, “but my gown’s color washed out in the process! The gown is now absolutely unwearable! I want the cleaner to pay for the damage in full!”

“I try not to judge a business dispute without hearing the other person’s side of the story,” I told her.

“That’s fine,” she responded. “I’ll ask the cleaner to call you up to explain his side of the story.”

“Are you willing to accept my ruling in this situation?” I asked her.

“Certainly!” she replied.

While awaiting the cleaner’s call, I reviewed the appropriate halachos. If someone hires a workman or artisan to process or repair an item and the workman damages it in the process, he is obligated to pay for its full value and he does not receive payment for his work (Shulchan Aruch, Choshen Mishpat 306:2; 3). As an example of this halacha, the Mishnah discusses the case of someone hired to dye cloth who left the cloth too long in the dye vat and damaged the cloth. The dyer must pay for the value of the cloth he ruined (Mishnah Bava Kamma 100b).

OTHER EXAMPLES

If you hired a builder to demolish a property, and specified that you want to reuse the stones in the subsequent reconstruction, if the builder destroyed building stones in the process, he must repay the value of the stones (Rama, Choshen Mishpat 306:2).

If you hire a carpenter to repair a cabinet, and the carpenter breaks it, he must pay for the damage (Rambam, Hilchos Sechirus 10:4; Shulchan Aruch, Choshen Mishpat 306:2).

Therefore if the cleaner damaged the gown, he is indeed responsible to compensate Mrs. Stein for its full value. This is assuming that the cleaner has no notice posted in his shop that he is not responsible for garments that he damages. According to halacha, if the repairman notified his clients in advance that he does not assume responsibility for damage, he absolves himself of responsibility.

THE CLEANER VERSION

The dry cleaner’s phone call interrupted my research. His version of the events was somewhat different from Mrs. Stein’s.

“Mrs. Stein pointed out the stains she wanted removed,” he told me. “In retrospect, I regret that I did not specify to her that the solvents used to remove the stains could change the gown’s color. I do not remember whether the garment was wearable with the stains or not, but I know that people do not usually leave stains on their nice garments.”

“Was the garment ruined?” I asked the cleaner. “Not at all,” he answered, “I am willing to show it to any expert on women’s clothes. We saw the stains and assessed that the best way to remove them was to clean the entire garment evenly with a specific solvent. This is a standard procedure in this type of situation. When you dry clean this way, if the color is affected, the entire garment changes to a consistent new color. I would love to show you the garment to see the masterpiece we created!”

The dry cleaner’s interpretation of events had us dealing with a very different shaylah! He contended that he used his best professional judgment in removing the stain, and the result was an altered, but perfectly satisfactory and useful garment. According to this understanding, he is entitled to full compensation for his efforts since he did what Mrs. Stein hired him to do and there was no damage to the gown, according to him, but rather, an improvement!

I now found myself in a predicament. I knew this dry cleaner well, and as far as I know, he was a very reputable person. Although he could have been covering up for his mistake, I had no reason to suspect him. On the other hand, Mrs. Stein was also a person I respected; a tremendous baalas chesed – the classic “pillar of the community.” Should I suspect that one of them is not telling the truth?

The fact that I heard two very different versions of the events from the two parties did not mean that either one of them was, G-d forbid, lying or dishonest. Each of them saw the events that transpired his or her own way. This is human nature; we tend to see and color events through our own eyes, regardless of the fact that someone else’s interpretation may vary considerably from ours.

This is the reason why it is very important for every person to have a good friend who gently challenges our assumptions. It is difficult, and maybe even impossible, for us to be objective about ourselves. A good friend can help us regain our objectivity when we become emotionally wrapped up in ourselves. In this case, if Mrs. Stein had asked a good friend for an honest evaluation, perhaps the friend could have helped her calm down. Similarly, the dry cleaner may have benefited by having someone point out to him that his interpretation of the events and facts may have been somewhat flawed.

Although this helped me understand the human side of the dry cleaning interaction that took place, it did not help me establish the facts. The question still remained – did the cleaner damage the gown or not?

There was indeed one other possibility, that both sides were right. The dry cleaner did what he thought was best, which was to clean the gown even though its color might fade slightly. However to Mrs. Stein, this result was unacceptable. It is possible that had she been told that her gown might fade she would have rejected this method of dealing with the problem.

If so, a third set of halachos applies – where the artisan did perfectly good work, but it was not what he was hired to do and not what you want. Perhaps our case is comparable to the case in the Mishnah (Bava Kamma 100b) of someone who hired a worker to dye cloth red and he dyed it black.

In that case, the resultant product is worth more than it was when he started, but the owner did not want black cloth, just as Mrs. Stein did not want a faded gown.

Does the worker receive compensation in this case? Is he liable for all damages?

The above mentioned Mishnah cites a dispute about someone who hired a worker to dye cloth red and he dyed it black. Rabbi Meir rules that the worker pays the hirer for his cloth and keeps it, regardless of whether the finished product is worth more or less than the original cloth. Rabbi Yehudah disagrees, contending that this arrangement benefits the negligent worker too much. Let us assume that the finished black cloth is worth far more than the original un-dyed cloth was worth. According to Rabbi Meir, the dyer would benefit from all this profit. Rabbi Yehudah contends that this is unfair – the worker should not benefit from his negligence. Instead, Rabbi Yehudah contends that any benefits go to the owner, and this is the final halacha. (The actual formula whereby we determine how much, if anything, the worker gets paid is somewhat halachically complicated, see Rambam and Raavad, Hilchos Sechirus 10:4; Shulchan Aruch, Choshen Mishpat 303:6.)

Thus, we now have three possible interpretations of what happened.

1. The dry cleaner ruined the garment and should pay damages (Mrs. Stein’s version).

2. The cleaner did the best possible job possible under the circumstances and made an unusable gown perfectly usable. Therefore, Mrs. Stein should pay him in full (the dry cleaner’s version).

3. That the cleaner exceeded what Mrs. Stein authorized him to do, in which case he would be entitled only to whatever increase in value there is. According to Mrs. Stein, there is none, the gown is not worth more than it was in its stained but un-faded phase.

But I am a rabbi and not a prophet. What was I to do? How could I possibly determine what happened?

Furthermore, there was a more important issue at stake. Whenever I am involved in these types of litigation, I am not satisfied to simply determine the halacha, but I want the two parties to leave b’shalom. To me, this is the most important result – that there should be no lasting ill feeling afterwards.

I thought of a course of action that would accomplish this purpose. First, I asked my wife if she would be willing to look at Mrs. Stein’s gown to see whether she considered the garment un-wearable. Of course I realized that although I value my wife’s opinion, she was not going to make the final halachic decision. However, I was looking to see what she thought and consequently which direction I might take in resolving this shaylah.

In truth, this was the most difficult part of the shaylah. How was I to determine whether the gown was now ruined goods or not? For one woman a garment may be un-wearable and to another it could be perfectly fine. The halacha in such a dispute places the burden of proof on the person who wants to collect the money.

I also asked my wife the following question, after first explaining to her that there was a halachic reason why I needed the information (and therefore no loshon hora was involved). I asked her, “Is Mrs. Stein the type of woman who would be bothered by things that others would not notice?” My wife answered that Mrs. Stein is a very discerning dresser. Thus, I realized that it might be that even if the dry cleaner did what most people would consider the correct course of action, Mrs. Stein would not be happy with the results. On the other hand, it might be that the dry cleaner assumed that the garment was fine, but most people would consider it damaged.

Then I called Mrs. Stein to see if she would mind showing the damage to my wife. My wife felt that although the gown was definitely faded, most women would have worn the garment as is, although a discerning dresser like Mrs. Stein might find the new color unacceptable.

I called the dry cleaner and asked him whether he would be willing to bend over backwards to placate a customer.

“Of course,” he responded, “I never gain anything from an angry customer. Do you know how many people might hear a story like this?”

I assured him that I would try my utmost to be sure that Mrs. Stein obeyed the rules of loshon hora. She is a very fine woman and meticulously observant of halacha.

Mrs. Stein agreed to come to my office to discuss the matter. First I engaged her in some small talk, and then moved the conversation over to the matter at hand. I knew Mrs. Stein to be a woman who was cautious of loshon hora. I just hoped that she did not forget to be careful while she had been so agitated about her damaged gown.

Indeed, she told me that she had told only one person, other than me, about the ruined gown. She had deliberately decided to tell a friend who does not know where she takes her dry cleaning so that there would be no loshon hora problem. I was extremely impressed about her care in observing halacha under this highly stressful circumstance.

Baruch Hashem, there had been no loshon hora said about this matter. Now to make shalom…

I explained to her that I had spoken to the dry cleaner, and that he regretted having not asked her before he used the particular cleaning solution. I also told her that he had used it evenly on the entire garment so that if it would discolor the garment it would leave it in a pretty shade. I then added that I felt the dry cleaner was not guilty from a halachic point of view, but that he was eager to make some restitution anyway because he did not want her to be angry with him.

Mrs. Stein stopped and thought about it. “You know, he has always been so accommodating. I was just surprised and disappointed by him. I suppose not everyone is as fussy as I am. I would be very satisfied if he would make sure to hang up a note to himself in his shop to make sure that he asks every customer before he does something like this again!!”

I had not expected that making shalom would be so easy. I guess that sometimes when you try to do a mitzvah, Hashem makes it easier! And my wife tells me that Mrs. Stein wore a different outfit to the simcha, which was absolutely stunning.

A Critical Review – The Halachos of Book, Wine, and Restaurant Reviews

Recently, someone sent me the following series of shaylos:

“Dear Rabbi Kaganoff,

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

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

“2. May one write reviews of other products, such as wine or restaurants? I am concerned primarily when the owner is Jewish.

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

“With much thanks in advance,

“Aaron Bernstein”

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

Saying something true that may damage someone’s professional or business reputation, or causes him financial harm, constitutes loshon hora, even when nothing negative is intended (Rambam, Hilchos De’os 7:5). Thus, random schmoozing about the quality of different workmen’s skills, the halachic prowess of different talmidei chachomim, or the quality of education provided by a certain school constitutes loshon hora.

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

Examples:

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

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

WHAT IF I KNOW THE MECHANIC IS DISHONEST?

Yitzchok and Esther just moved to the neighborhood and mention to me that they are planning to bring their car, which is making unusual noise, to Gonif’s Service Station. My personal dealings with Gonif’s have been highly negative; I have found the proprietor very dishonest. May I say something to Yitzchok and Esther?

The halacha is that not only may I say something to them, but I am obligated to do so (Chofetz Chayim, Hil. Issurei Rechilus 9:1). This is because I am responsible to make sure that Yitzchok and Esther are not hurt financially by the crooked repair shop. This is included in the mitzvah of lo saamod al dam rei’echa, do not stand by idly while your friend becomes injured (see Be’er Mayim Chayim ad loc.).

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

Why is this?

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

1. IS IT BAD?

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

2. NO EXAGGERATING

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

3. GOOD MOTIVATION

One’s motivation must be to protect the innocent person from harm, not to bring retribution on the person doing the harming. In our case, this means that my goal is to protect Yitzchok and Esther from harm, not to “get back” at Gonif’s. The reason for this condition is that one violates the prohibition of saying loshon hora if one has evil intent even in a case when one may say the loshon hora (see Be’er Mayim Chayim, Hil. Issurei Rechilus 9:3).

4. NO OTHER CHOICE

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

5. TOO DAMAGING

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

WHEN IS SOMETHING NOT REALLY BAD?

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

What is an example of this situation?

Chani sees Miriam, who is new in the neighborhood; about to enter a grocery store that Chani knows is expensive. May Chani tell Miriam that this store overcharges slightly? The Chofetz Chayim rules that one may not reveal this information (Be’er Mayim Chayim, Hilchos Rechilus, 9:27).

Why is it not permitted to save Miriam from overpaying?

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

WHY IS BEING OVERCHARGED NOT CONSIDERED BEING HARMED?

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

Thus, there is a major difference between a dishonest store and one that is more expensive. It is a mitzvah to steer someone away from a dishonest store, but it is forbidden to steer him away from a Jewish store that charges more.

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

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

If someone knows that a third party plans to purchase an item from a store that tends to be expensive, do not say anything. Even though the purchaser could save money by buying elsewhere, the storekeeper is losing from your actions. One should not get involved in saving one person’s money at someone else’s expense (see Be’er Mayim Chayim, Rechilus 9:27 and commentaries). However, if the proprietor of the store is not an observant Jew, you may warn the purchaser about his overcharging.

On the other hand, if the storekeeper is doing something that is halachically prohibited, such as selling defective or misrepresented products, one may and should warn someone about it.

BOOK REVIEWS

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

What does the review accomplish?

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

Why do secular sources review books?

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

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

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

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

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

EXAMPLE:

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

If the work reflects an approach to halacha different from one’s own, then it depends – if the halacha quoted is reliable, one may identify that it reflects a different halacha approach.

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

Now we can look at the second question:

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

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

WHAT IF SOMEONE ASKS ME MY OPINION OF A CERTAIN WINE OR RESTAURANT?

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

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

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

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

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

COULD THERE THEREFORE BE A FRUM KOSHER WINE REVIEW?

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

In conclusion, we see that halacha approaches this entire issue very differently than contemporary society. We must remember that we examine our behavior through the prism of halacha and not through the eye scope of modern society.

Practical Halachos of Civil Litigation

A Jew lives his life hoping to manage his business relationships without ever resorting to litigation. Someone involved in a “misunderstanding,” should try to discuss the matter with the other party and if the matter remains unresolved, he should try discussing it with the guidance of a third party, possibly a Rav.

However, what happens if someone tried doing this and the problem remained unresolved? For such situations, the Torah commands us to establish batei din.

One may use either of two kinds of batei din. Either the parties can bring their litigation to an existent beis din or alternatively they can create an ad hoc beis din using a system called zabla. Zabla is an acronym for zeh borer lo echod, which means that each party chooses one of the dayanim who will judge the case, and then the two dayanim choose a third person to join them and form a beis din (Sanhedrin 23a). In either system, the two parties agree that they will be bound by the decision of the beis din that they use.

The Gemara (Gittin 88b) teaches that a Jew may not submit litigation against a fellow Jew to a secular court. This violation exists even if both parties agree (Ramban, beginning of Parshas Mishpatim), and is known as the prohibition against using Arkaos, secular courts. Using court systems not sanctioned by the Torah creates chillul Hashem, a desecration of Hashem’s name by implying a denial of Hashem and His Torah (Midrash Tanchuma, Mishpatim #3). Because the Torah created a system of courts, someone who uses a non-Torah source of litigation acts as if he denies the authenticity of the Torah, chas visholom, and the authority of He who commanded us to set up Torah courts.

In the words of the Rambam (Hilchos Sanhedrin 26:7), “Whoever has his case judged by non-Jewish laws or courts, even if their laws are the same (as the Torah), is a rosho. It is as if he blasphemed and raised his hand against the Torah of Moshe Rabbeinu”. (See also Rashi’s comments on Shmos 21:1). Someone who brought litigation to a secular court without halachic permission (as described later) may not serve as chazan for Yomim Norayim (Mishnah Berurah 53:82). In addition, he will invariably end up with property that is not his according to halacha and transgress the violation of gezel, stealing!

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 (see Bava Kamma 92b, as explained by Rosh). When such an unfortunate event happens, the aggrieved party follows the following procedure: The plaintiff files with a beis din, which now summons the defendant to appear in beis din. If the defendant fails to appear in beis din or indicates that he will not appear, the beis din authorizes the plaintiff to bring his suit to secular court (Choshen Mishpat 26:2).

Under these circumstances, the plaintiff has not violated the prohibition of going to civil courts since beis din authorized his suit. Rav Sherira Gaon notes that, in his community, the custom was to summons the defendant three times before authorizing the plaintiff to sue in secular court (cited by Beis Yosef and Sma to Choshen Mishpat, Chapter 26). This is the usual practice, although it is not required.

It should be noted that even someone who was authorized to sue in secular court is still not entitled to more than he would have been entitled according to halacha. Therefore, after winning his case in secular court, he should ask a posek whether he may keep the entire award and/or how much of it he may keep.

What Happens if I am Summoned To Beis Din?

The answer is very simple: Respond to the summons. A person who receives a notification summoning him to beis din, is halachically obligated to respond. In the vast majority of cases, he has the right to request that the case be heard in a different beis din where he may feel more comfortable. He may also request that the matter be decided via zabla.

Being summoned to beis din may be an unpleasant experience, but that gives a person no right to ignore the summons.

Question I have been Asked:

“Someone told me that the prohibition against secular courts is only if the judges are idolaters. Is there any basis to this?

No. The poskim explicitly rule that it is forbidden to go to any secular court and that there is chillul Hashem every time one goes to a court that does not recognize Torah as its law system. (See for example, Tashbeitz 2:290; Chazon Ish, Sanhedrin 15:4).

May I Go to A Secular Court If the Judge is Jewish?

To answer this question I will quote the Chazon Ish: “There is no difference in halacha between going to judges who are not Jewish 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, vain system. Even if the city residents have accepted this court’s system and authority, their agreement has no validity. To force someone to follow this system has the status of stealing from them and 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 Pesach Frank and Rav Yitzchok Herzog (see Shu”t Tzitz Eliezer 12:82).

But I Thought that Dina Di’malchusa Dina means that the Civil Law Determines Halacha in Business Matters?

This is an incorrect understanding of dina di’malchusa dina. Dina di’malchusa dina requires us to obey rules of the government such as paying taxes and obeying traffic and safety regulations, and prohibits us from smuggling and counterfeiting. Dina di’malchusa dina does not replace the civil laws of the Torah (the laws of Choshen Mishpat) that govern the relationships between Jews, nor does it supplant the responsibility incumbent upon the Jew to bring his litigation to a proper beis din.

Dina di’malchusa dina should not be confused with the following application. In some areas of halacha, particularly the contract law rules for buying and hiring, there is a concept of minhag hamakom – that normative business practice determines what is halachically accepted. For this reason, the halacha regarding sales and employee rights are often governed by what is accepted normal practice. Since normal practice is heavily influenced by secular law, the halachic practice in these areas is influenced by the secular law. This is not because halacha recognizes the secular law but because accepted business practice is influenced by secular law.

However, there will always be interpretations, questions of applicability, and various other halacha considerations that must be done via beis din. Beis din will take into account when and how to apply the rules of dina di’malchusa dina.

It should be noted that areas of halacha such as laws of inheritance are not affected by secular law at all (Shu”t Rashba quoted in Beis Yosef, Choshen Mishpat end of Chapter 26).

May a Lawyer File a Lawsuit in Civil Court on Behalf of a Jewish Client?

This is unfortunately very common. A Jewish lawyer represents a Jewish client who has litigation against another Jewish client. May the lawyer file a lawsuit in secular court? Rav Pesach Frank ruled that it is absolutely prohibited for the lawyer to file suit in secular court, and that it is a tremendous chilul Hashem to do so.

However, this situation provides the lawyer with a tremendous opportunity to perform a kiddush Hashem. He can explain to his not-yet-observant client the advantages of going to beis din – that it is less expensive and usually far more efficient. (Most frum communities have batei din where a din torah can be arranged within days.) Of course, to an observant Jew, the only selling point necessary is that this is what Hashem wants us to do. Certainly, the reward for proceeding according to halacha is millions of times greater than anything gained by going against halacha. However, since the non-observant client may not appreciate these considerations, the lawyer may convince his client by pointing out advantages of going to beis din that the client understands.

If the defendant fails to respond to the summons of the din torah, then the beis din will authorize the plaintiff and his lawyer to take the case to secular court. This action will be permitted because it was authorized by the beis din, as I explained above.

What Can I Do if I think that the Defendant will not Obey the Ruling of Beis din?

Beis din proceedings can be made be binding on the parties using an “arbitration agreement” that is recognized in civil law. Once the parties agree to use beis din for their arbitration, if one party subsequently fails to honor the psak of the beis din, beis din will enforce its ruling through the use of secular authorities if necessary. This will be binding in secular court because the litigants accepted the authority of the beis din as binding arbitration.

May One Testify in Secular Court That a Case was already Decided in Beis din?

Yes, it is permitted to do. Furthermore, it is even permitted and a mitzvah for the dayanim of the beis din themselves to testify in secular court regarding their adjudication. There is an interesting discussion in poskim whether it is a lack of kovod haTorah for the dayanim to testify as witnesses in a secular court. The Chasam Sofer permits it as long as the secular court is honest (Shu”t Chasam Sofer, Choshen Mishpat #3).

May A Lawyer Defend A Client in Secular Court?

If someone is sued in secular court, it is a mitzvah to defend his case to the best of one’s ability, since the suing party violated halacha by suing in civil court.

What Should I Do if the Defendant is Not Jewish?

A Jew is permitted to sue a non-Jew in secular court. Therefore, a lawyer can represent a Jew in his suit against the non-Jew.

What Happens If I Live Far Away from a Beis din?

The simplest solution is to have the representative of a beis din (usually called the mazkir beis din) contact the defendant to explain to him that he is required to have the matter adjudicated by a beis din. If the defendant refuses to accept the authority of beis din, then the beis din will authorize the plaintiff to submit his matter to a secular court.

Can I Submit the Matter to an Arbitration Board?

If beis din has authorized that the matter be brought before a secular court, then it is permitted to submit the matter to an arbitration board as well. (There is a dispute among poskim whether one may submit a case to a non-Jewish arbitration board without authorization from beis din. Shach 22:15 and Aruch HaShulchan 22:8 seem to permit this if the arbitrator bases his decision on common sense and fairness, rather than on a non-Jewish system of law; Nesivos HaMishpat prohibits even such a circumstance. However, a simpler solution to this issue is to summon the defendant to beis din, and get permission to adjudicate the matter through a secular court or arbitration board.)

Unfortunately, there are even frum people who sometimes assume that legal rights and responsibilities are governed by secular law. A Torah Jew must realize that Hashem’s Torah is all-encompassing, and that every aspect of his life is directed by Torah. The true believer in Hashem and His Torah understands that every aspect of his life is directed by Hashem and that the only procedures we follow in any part of our lives are those that the Torah sanctions.