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

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

“To the Editor:

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

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

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

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

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

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

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

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

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

I. Inciting – maiseis

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

II. Encouraging — chanufah

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

III. Enabling – lifnei iveir

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

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

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

I. Inciting Someone to Sin – maiseis

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

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

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

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

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

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

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

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

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

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

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

II. Encouraging Someone to Sin — chanufah

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

III. Enabling Someone to Sin – lifnei iveir

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

A QUESTION OF INTEREST

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Do I Have to Tell the Truth?

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

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

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

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

Therefore the Torah warns, “Midvar sheker tirchak,” “Keep distant from a false matter,” (Shemos 23:7). Nowhere else does the Torah command that we must “keep distant” from an activity (Sefer HaChinuch #74), which emphasizes how far we must keep from falsehood (Mesilas Yesharim, Chapter 11).

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

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

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

Despite the importance of being straightforward, there are situations where the Torah allows being imprecise to circumvent damage. For example, it is more important to avoid machlokes, embarrassing someone, or hurting his feelings or reputation, than it is to tell the entire truth (Bava Metzia 23b with Rif and Tosafos). When placed in a situation in which full disclosure will cause one of these negative outcomes, avoid fabricating a story but omit the harmful information (see Chofetz Chayim, Hilchos Rechilus 1:8). However, if machlokes may result if one answers truthfully, one must modify the truth, rather than create ill feeling.

WHY MAY I MODIFY THE TRUTH?

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

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

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

WHEN MAY ONE MODIFY THE TRUTH?

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

1. SHALOM

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

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

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

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

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

2. MODESTY

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

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

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

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

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

For example, while attending a simcha where one’s chumrah is not observed, one should try to hide the fact that one is not eating. If someone notices that one is not eating, one may explain that one attended another simcha earlier and ate already. One may say this even if one did not attend a simcha that night and one ate at home, since one’s statement is true (he has attended other simchos previously). This is better than saying that one’s stomach is upset (when it is not) which is an outright untruth. However, if one feels that the only excuse one can use is that one’s stomach is upset, one is permitted to do so.

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

3. TO SAVE SOMEONE FROM EMBARRASSMENT

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

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

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

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

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

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

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

4. PROTECTING SOMEONE

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

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

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

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

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

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

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

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

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

5. EXAGGERATION

It is permitted to exaggerate even though the literal meaning of one’s words are inaccurate. So long as one’s intent is clear, this is not deceptive nor dishonest, but simply idiomatic. Therefore, it is permitted to say that something has happened “millions of times” since everyone understands that this is an exaggeration. Similarly, it is permitted to call a fellow Jew “my brother,” since all Jews are related and, furthermore, we are all brothers in mitzvos. It is also permitted to call a student “my son,” since the pasuk refers to our students as our children (Shabbos 31a).

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

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

An opposite pedagogic use is found in a different Gemara. Bar Kappara, one of Rebbe’s disciples, once said something disrespectful about Rebbe. The next time Bar Kappara came to visit Rebbe, Rebbe told him “Aini makircha mei’olam,” which can translate into English as “I do not know who you are.” Bar Kappara understood that Rebbe did not want to have anything to do with him, as if they had never met. Bar Kappara repented and Rebbe befriended him once again (Moed Katan 16a).

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

CONCLUSION

As we can see, the halachos of telling the truth are far more involved than most people realize. An excellent sefer on the subject is by Rabbi Daniel Travis, entitled “Priceless Integrity.”

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

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

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

Why is telling the truth a zechus for longevity?

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

May we all merit this reward!

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?

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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

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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

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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

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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

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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.

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