Category: Beis Din

Rav Yitzchak Halevi Herzog and His Influence on the Medinah

Rav Herzog wrote and lobbied extensively to make choshen mishpat the system of law in the modern State of Israel and that its court system should be in the hands of recognized dayanim. For the week of parshas Mishpatim, here is an article about his unique contributions to Klal Yisrael.

Contrary to what many people think, the first Chief Rabbi of the modern State of Israel was not Rav Kook, but Rav Yitzchak Isaac Halevi Herzog. Rav Kook was the first Ashkenazi Chief Rabbi of the new yishuv, but he passed away in 1935, thirteen years before the Declaration of Independence of the State of Israel. After Rav Kook’s passing, the search committee for a new rav placed two candidates before the body in charge of selecting a new rav, and Rav Herzog, then serving as the Chief Rabbi of the Irish Free State, was chosen over Rav Yaakov Moshe Charlap, the Rosh Yeshivah of Yeshivas Merkaz Harav, now located in the Kiryat Moshe neighborhood of Yerushalayim.

Rav Herzog was born December 1, 1888, in Lomzha, where his family had lived for several generations. His father, Rav Yoel Herzog, was a well-known talmid chacham in the city and served as one of the dayanim alongside the city’s rav, Rav Noach Yitzchak Diskin (a brother of Rav Yehoshua Leib Diskin, one of the main unofficial rabbanim of the old yishuv of Yerushalayim and the rebbe of Rav Yosef Chayim Sonnenfeld, the first rav of the Eidah Hachareidis), and Rav Malkiel Tzvi Halevi, the author of the Divrei Malkiel, one of the greatest poskim in Lithuania in his generation. In contrast to most rabbonim of the time, Rav Yoel Herzog was a “fiery Zionist” – he was a strong supporter of the Chovevei Zion, a forerunner to the Zionist movement. As a young man, he met Rav Shmuel Mohaliver, one of the early founders of religious Zionism, who invited the much younger Rav Yoel Herzog to the first Zionist Congress, where Rav Mohaliver planned to introduce him to Theodore Herzl. At the last minute, Rav Yoel Herzog was unable to attend because his son Yitzchak became seriously ill. Most fortunate for the history of klal Yisrael, the young Yitzchak recovered.

The younger Rav Herzog grew up in an environment that believed very strongly in the building of a modern Jewish presence in Eretz Yisrael and had no difficulty cooperating with non-religious elements to bring about the creation of a Jewish state in the Holy Land.

The senior Rav Herzog left Poland, first to become Chief Rabbi of Leeds, England, and then to be the Chief Ashkenazi Rav of Paris. There were no significant yeshivos in England or France in this era, yet the young Rav Yitzchak Herzog became a tremendous gaon in learning, first by learning bechavrusa with his father, and then on his own. He pursued his secular education at the University of London and the Sorbonne, eventually earning a master’s degree equivalent from the Sorbonne and a Ph. D. from the University of London. During this time, he continued growing in Torah learning by studying on his own and corresponding with the greatest of the Torah world at the time, including the Ridbaz, Rav Isser Zalman Meltzer, and Rav Meir Simcha of Dvinsk (the Or Somayach). He later named his two sons for Rav Chayim Soloveichek of Brisk and the Ridbaz, gedolim whose acquaintance he had developed via correspondence from London, Paris and, later, Ireland, where he served first as the Chief Rabbi of Belfast (1916) and afterward of Dublin (1919).  He became the Chief Rabbi of the Irish Free State when it achieved its independence (1922).

Rav Herzog was offered positions at many larger, more prestigious and wealthier communities, all of which he turned down, stating that his intention was to move to Israel and nowhere else. When his father passed away in 1933, he was beseeched to take his father’s place as rav of Paris, but he replied that he would not relocate anywhere other than to the Holy Land. He was also offered to become chacham bashi, or Chief Rabbi, of Salonika, at the time the most prestigious rabbinic post in the Sephardic world, with the understanding that whenever any post of chacham bashi anywhere in Israel would become available, he would be virtually guaranteed the position. He turned down this offer also, saying that he did not want to assume any position outside of Israel, even on an interim basis. He was the only person in history who might have become either the Ashkenazi or the Sefardi Chief Rabbi of Israel!

When the position of rav of Tel Aviv-Yaffo became vacant in 1933, he became a candidate for the position, alongside Rav Joseph Ber Soloveichek, Chief Rabbi of Boston. However, the organized Mizrachi community in Eretz Yisrael backed Rav Moshe Avigdor Amiel, who was selected for the position.

As mentioned above, two years later, in 1935, Rav Herzog was elected Ashkenazi Chief Rabbi of Palestine, and when the state was founded in 1948, he became the first Ashkenazi Chief Rabbi of Israel.

Rav Herzog’s tenure was during a time of tremendous turmoil for the Jewish people in general and particularly for the yishuv in Israel. This is the period of the growth of the Nazi regime, the Arab riots and the British issuing repeated white papers restricting Jewish immigration to Israel when it was needed most. Rav Herzog, an eloquent and native English speaker, a tireless worker and an ego-less communal activist, used all of his considerable talents to help Klal Yisrael in every imaginable way during this difficult period. We can single out his traveling in the middle of the war from Israel to the United States to personally lobby President Roosevelt to help the plight of Jews being massacred by the Nazis, and his considerable efforts after the war to locate Jewish children who had been placed in Christian orphanages during the war and reunite them with their people.

Well before the founding of the State, Rav Herzog was probably the first one to write on how the new state should be run, envisioning an integration and application of halacha to the legal system of a modern new country. He published, lectured and lobbied that the new state and its entire legal system should be run according to halacha. He felt that its criminal justice system should use dayanim as its judges, and that Choshen Mishpat should be its legal foundation – not Anglo-Saxon common law, as unfortunately happened. He opposed the State having capital punishment, contending that the requirements mandated according to halacha would not be kept.

He even advocated certain “adjustments” to the way batei din and halacha traditionally operated and was usually interpreted, so that it could be used in a modern setting. For example, he wanted to adjust the system of yerusha so that daughters would inherit equally with their brothers, and he introduced the idea of fathers paying child support for their children until society considers them adults. Although he was, by and large, unsuccessful in introducing most of his ideas to Israeli jurisprudence, these last two are currently practiced in the official batei din of the State of Israel. And, although Israel officially has capital punishment, it has been carried out only once in the history of the state (Adolph Eichmann).

In closing, it is fair to say that, unlike Rav Kook, Rav Charlap and others, who built their belief in the medinah upon philosophic and kabbalistic foundations, Rav Herzog emphasized practical matters, such as what structure the legal system would have and how would the courts work, although this aspect of his life’s goals was only moderately successful.

The Rights of a Copyright Holder

What is the halachic background to copyright law? Does the Torah have a concept of intellectual property rights, meaning that someone who creates or invents an item is the owner of his invention? May a rav prevent people from taping his shiur? May one copy computer software or music disks?

I will iy”H provide the background and history behind these issues. For our purposes, I am dividing the topic into three subtopics:

  1. Copyright. Does a publisher have rights protecting him so that he has the opportunity to recoup his investment? Assuming that such rights exist, do they apply in all cases, or only if it is a new publication? For how long are his rights protected?
  2. Intellectual property rights. Does someone who wrote a book or created an invention own rights to future sales of this book or this invention? If he does, for how long do his rights last?
  3. Conditions of sale. Can a seller or manufacturer stipulate that a buyer may not copy the item sold?

WHAT RIGHTS DOES THE PUBLISHER HAVE?

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

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

Subsequent to the Rama’s ruling, it became common practice for publishers to include in their works a cherem (plural: charamim) from a well-known posek, banning the publishing of the same sefer, for a period of anywhere from four to twenty-five years, depending on the circumstances. The purpose of these charamim was to make it financially worthwhile for the publisher to invest the resources necessary to produce the sefer. Thus, these charamim encouraged publishing more seforim and the spread of Torah learning.

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

The Chasam Sofer prohibited the second publisher from selling his machzorim and similarly banned people from purchasing them (Shu’t Chasam Sofer, Choshen Mishpat #41, #79). In his opinion, this case is halachically comparable to the edition of Rambam produced by the Maharam Padua.

Rav Benet disagreed, contending that there were several key differences between the cases. In his opinion, it was unnecessary to guarantee publication of machzorim by issuing charamim. Machzorim are a common item, and publishers know that they will profit from producing them. Thus, the entire purpose for which these charamim were created, to guarantee the production of seforim, did not apply. Furthermore, since non-Jewish publishers will certainly produce machzorim, issuing a cherem against competition will benefit the non-Jewish publishers, who will be faced with less competition, more than it will benefit a Jewish publisher such as Wolf Heidenheim. In addition to the above legal arguments, Rav Benet did not consider the second publisher to be unfair competition for a variety of reasons (Shu’t Parashas Mordechai, Choshen Mishpat #7, 8).

The Chasam Sofer responded by contending that since Heidenheim had invested time and money in checking and correcting texts, his business interest should be protected. The Chasam Sofer even contended that Heidenheim’s monopoly should be allowed for the entire twenty-five years decreed in the original cherem, even after he had sold out his first edition. This was because the investment had been so great that it required multiple editions to recoup. This leads us to a new discussion.

WHAT IF THE FIRST EDITION SELLS OUT?

May a competitor produce a new edition, if the first edition was sold out before the terms of the cherem have been completed? Some poskim contend that the cherem becomes void at this point. They reason that the purpose of the cherem has already been accomplished once the publisher successfully sold out his first edition. The goal is to encourage the production of more seforim, and that will be best accomplished by opening up the market to any publisher who is willing to produce the sefer (Pischei Teshuvah, Yoreh Deah 236:1, quoting Tiferes Tzvi. Pischei Teshuvah there also quotes Rav Efrayim Zalman Margaliyos as disputing this conclusion, but does not explain his position.).

Support for this position can be brought from an interesting halachic decision rendered by the Rosh and quoted by the Rama (Choshen Mishpat 292:20). In a certain community, there was an insufficient number of seforim available for people to study, but there were individuals who had private seforim that they were unwilling to lend. The local dayan ruled that these individuals were required to lend their seforim, since their reticence was preventing Torah learning. Apparently, individuals challenged the ruling of their local dayan and referred the shaylah to the Rosh. The Rosh agreed with the dayan, although he stipulated that each borrowed sefer should be evaluated by three experts and that the borrower must provide the lender with a security deposit, in case of damage or loss (Shu’t Rosh 93:3).

The question here is: Upon what halachic basis did the Rosh insist that these individuals relinquish their seforim? After all, it is an individual’s prerogative to lend his property. Clearly, the Rosh held that an individual’s rights are surrendered if people are deprived of Torah learning, as a result. Similarly, the right of the publisher is rescinded after the first edition sells out if the result is that less seforim are available for study.

DOES HALACHA RECOGNIZE INTELLECTUAL PROPERTY AS OWNERSHIP?

This shaylah came to the forefront in the middle of the nineteenth century, also as a result of a din torah. Around 1850, a printer named Yosef Hirsch Balaban published a large-sized edition of the Shulchan Aruch with major commentaries, accompanied for the first time by the anthologized commentary, the Pischei Teshuvah. (This is the Pischei Teshuvah that was referred to above in a note and is often quoted in these articles.)

Balaban was sued in beis din by a printer who claimed to have purchased exclusive rights to the Pischei Teshuvah from its author. At the time, the Pischei Teshuvah had been printed only once, in a small-sized edition including only the Shulchan Aruch and one other commentary. The plaintiff claimed that Balaban had violated his exclusive ownership rights to the Pischei Teshuvah.

This writer is aware of three teshuvos on the shaylah, each reaching a different conclusion.

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

According to Rav Valdberg’s analysis, the author of the Pischei Teshuvah has no greater ownership to his work than any person publishing someone else’s work. His latter two arguments, that the first edition was already sold out and therefore the cherem expired, and that the multi-volume set does not compete with the one volume edition, would both be preempted if we assume that the author retains ownership over his work. Thus, Rav Valdberg did not believe that halacha recognizes intellectual property rights. The Sho’eil uMeishiv (1:44) took issue with this point. He contended that the author of a work is its owner. Thus, the Pischei Teshuvah retains his rights as author/owner, whether or not a cherem was declared against competition. A cherem is to guarantee a publisher enough time to recoup his investment. An author is an owner, not an investor, and maintains ownership over the item produced, which he is entitled to sell, regulate, or contract. This is called intellectual property rights.

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

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

Thus, whether halacha recognizes intellectual property ownership is a three-way dispute, Rav Valdberg rejecting it, the Sho’eil uMeishiv accepting it, and the Beis Yitzchok contending that it depends upon whether such ownership is assumed in the country of publication.

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

MAY A RAV  PREVENT PEOPLE FROM TAPING HIS SHIUR?

On the basis of the above discussion whether or not halacha recognizes intellectual property rights, one might suggest that someone giving a shiur may restrict the taping of the shiur on the basis that he owns the shiur. However, in a responsa on the subject Rav Moshe Feinstein rules that a rav may forbid taping his shiur, but for totally different reasons. They are:

The lecture may include material that should not be circulated without supervision.

Subsequently, the rav may change his mind from the conclusions he reached in the shiur, or the shiur may include ideas that are conjectural.

He might be embarrassed later by the opinions he stated when he gave the original shiur (Shu’t Igros Moshe, Orach Chayim 4:40:19).

In the same responsum, Rav Moshe rules that if the rav permitted the shiur to be taped, he may not prevent people from reproducing these tapes for sale (Shu’t Igros Moshe, Orach Chayim 4:40:19). This implies that Rav Moshe holds that the rav cannot claim ownership of the shiur on the basis of intellectual property, certainly not to the extent held by the Sho’eil uMeishiv.

Rav Moshe also rules that if someone is selling copies of a shiur, it is prohibited to make copies without permission of the seller. This takes us to the next subtopic in our discussion.

IS IT PERMITTED TO COPY A TAPE OR DISK?

Does a seller have the halachic right to stipulate that a buyer may not copy the item sold? This shaylah takes our discussion in a new direction. Until now, we have been discussing whether halacha prohibits publishing a competing edition to an existent work. Now our shaylah is whether one may copy what he purchased, when the seller stipulates that he may not.

As we saw above, Rav Moshe rules that this is prohibited unequivocally and is an act of stealing, since you are using someone’s property in a way he has not permitted. Numerous other contemporary poskim also rule this way (see Mishnas Zechuyos HaYotzeir; cf. Shu’t Shevet HaLevi 4:202).

Some poskim contend that copying disks may not be considered stealing, although they also prohibit doing so for various other reasons. The line of reasoning why they do not consider it stealing is very instructive.

There are basically two ways that a seller can limit how a purchaser will use an item after the sale. The first is by placing a condition on the sale. If the buyer subsequently violates the condition of sale, the sale becomes invalid, and the buyer has used the item without permission. According to halacha, using someone’s item without permission is stealing. Thus, by voiding the condition of sale, the purchaser has retroactively made himself into a thief.

However, there is a strong argument against this position. If indeed the sale has been voided, then the purchaser is entitled to a refund of his purchase money. Since the seller has no intention of providing a refund to everyone who copies his tape or disk, clearly he does not intend this stipulation to be a condition that invalidates the sale.

There are two other ways that the seller can enforce rights not to copy his material. One is halachically referred to as “shiyur,” which means that the seller places a partial restriction on the sale. In this case it means that he sold the right to use the tape but not the right to copy it. Some poskim contend that one should assume that computer programs, tapes, etc. are sold with these stipulations. It appears that Rav Moshe Feinstein held this way.

There is a second reason why it is prohibited to copy this material. Most computer software agreements specify that the programs are licensed, rather than sold. This means that the seller has rented the right to use the equipment but has never sold these items outright. Using the items in an unapproved fashion thereby constitutes using an item I have rented in a way that violates my agreement with the owner. Therefore, copying these items against the owner’s expressed wishes is certainly a violation of halacha.

In addition to the above reasons, many poskim point out that it is not good for a Torah Jew to use something in a way that violates the implied trust he has been given. There also might be a halachic issue of violating ve’ahavta l’rei’acha kamocha, loving your fellowman like yourself, since if you published software or disks, you would not want someone else to copy them.

Based on the above discussion, most of us will realize that we have probably been following certain practices without verifying whether they are halachically permitted. It behooves us to clarify with the posek we use whether, indeed, these activities are permitted. For example, may I photocopy a page of a book for educational purposes? Does it make a difference whether it is being used for Torah purposes or for a secular use? (See Shu’t Shevet HaLevi 4:202.) May I make a copy of a tape or disk, if I am concerned that the original will wear out? May I make an extra copy of a computer program and use one at home and one at work?

Clearly, a Torah Jew must be careful to follow halacha in all his financial dealings and arrangements. Ultimately, this is the true benchmark that measures what is considered kiddush Hashem in this world.

 

Contemporary Conversion Conundrums

Question #1: Who is a Jew?

Are Jews an ethnic group?

Question #2: What is a Jew?

Or is Judaism a religion?

Question #3: Teaching a Non-Jew?

May I teach Torah to someone who is interested in becoming Jewish?

Introduction

When our ancestors accepted collective responsibility to observe the Torah, they did so by performing bris milah, immersing in a mikveh and offering a korban. So, too, a non-Jew who is joining the Jewish people is entering the same covenant and follows a similar procedure (Kerisus 9a). When the bris milah is performed, a special form of the brocha is recited: lamul es hageir. Immediately after immersion in the mikveh, the new convert recites a brocha, al hatevilah.

Since, unfortunately, no korbanos can be offered today, an individual may join the Jewish people and become fully obligated to fulfill all the mitzvos without fulfilling this korban requirement. (We derive from a pasuk that geirim are accepted even in generations that do not have a Beis Hamikdash.) However, when the Beis Hamikdash is iy”H rebuilt, every geir will be required to offer a korban olah, which is completely burnt on the mizbei’ach (Rambam, Hilchos Issurei Bi’ah 13:5). Those who have already become geirim will be obligated to bring this korban at that time.

The privilege of becoming a geir tzedek comes with very exact and exacting guidelines. On a technical level, the geir is accepting responsibility to perform mitzvos. Through the geirus procedure, he creates an obligation upon himself to observe mitzvos (Birkas Shemuel, Kiddushin #15).

Who is a Jew?

To the non-Jewish or non-observant world, the definition of a Jew is based on ethno-sociological criteria. But to the Torah Jew, the definition of a Jew is someone who is a member of a people obligated to fulfill the Torah’s commandments. For this reason, it is axiomatic that joining the Jewish people means accepting the responsibility to observe mitzvos (kabbalas mitzvos). This concept, so obvious to the Torah Jew, is almost never appreciated by the non-observant. This is why a not-yet-observant Jew often finds the requirements for giyur to be “unrealistic” or “intolerant.” In reality, attempting to bend the Torah’s rules reflects a lack of understanding of the concept of “commandment” and the unique status of the Jewish people as a nation whose definition is: living according to the laws of Hashem.

In other words, the answer to our opening question — are Jews an ethnic group or is Judaism a religion? — is that the Jewish people are a divinely created religious community chartered with a specific relationship with our Creator. He who made the Rules instructed that others desiring to join the community may do so, but those who choose to leave it may not dispense with their obligation. Thus, we are not technically “an ethnic group,” because you cannot “join” one. On the other hand, we are not simply a “religion” either, because someone who does not believe in the tenets of Judaism may still be Jewish.

Desire to convert

Someone requesting to be converted to Judaism is discouraged from doing so. As the Gemara (Yevamos 47a) says, we ask him, “Why do you want to convert? Don’t you know that Jews are persecuted and dishonored? Constant suffering is their lot! Why do you want to join such a people?”

Why discourage a sincere person from joining Jewish ranks? Shouldn’t we promote this noble endeavor?

This is because even a sincerely motivated convert may not successfully persevere when encountering major adversity. We can never be certain what the future will bring, but placing obstacles in the path to conversion helps a potential geir who might later regret the decision. As the Gemara explains, we tell him, “Until now you received no punishment if you did not keep kosher. There was no punishment if you failed to observe Shabbos. If you become Jewish, you will receive very severe punishments for not keeping kosher or Shabbos!” (Yevamos 47a)

A different method of discouraging someone from converting is to explain that someone not Jewish who observes the seven mitzvos benei Noach properly merits olam haba, without becoming obligated to keep all the Torah’s mitzvos.

The beis din overseeing the conversion attempts to ascertain that the candidate wants to become Jewish for the correct reasons. If we suspect that there is an ulterior reason to convert, the potential convert is not accepted, even if they commit to full mitzvah observance. The Gemara and the Rambam note that a beis din should be aware that a man may seek conversion to allow him to marry a Jewish woman, or a woman because she wants to marry a Jewish man. The Gemara and the Rambam rule that we should reject these conversion candidates, because their motivation is not fully sincere.

If the potential convert states that he/she accepts responsibility to fulfill all the mitzvos, we usually assume that the geirus is valid. However, what is the halacha if the potential convert declared acceptance of all the mitzvos, but the individual’s conduct indicates that this was merely lip service? For example, what happens if the convert eats non-kosher food or desecrates Shabbos immediately following his conversion procedure? Is he considered Jewish? This question is disputed by Rav Avraham Yitzchak Kook, first Chief Rabbi of the new yishuv in pre-state Israel, and Rav Chayim Ozer Grodzenski, accepted posek hador and rav of Vilna until his passing in 1940, in which Rav Kook rules that the geirus is valid, as long as the beis din believes, at the time of the conversion, that the person is fully accepting observance of the mitzvos, whereas Rav Chayim Ozer rules that the geirus is invalid. Rav Moshe Feinstein rules that, when it is clear that the person never intended to observe mitzvos, the conversion is invalid. The person remains a non-Jew, since he never undertook kabbalas mitzvos, which is the most important component of geirus (Shu”t Igros Moshe, Yoreh Deah 1:157; 3:106).

Accepting mitzvos

As mentioned above, kabbalas mitzvos is a verbal acceptance to observe all the Torah’s mitzvos. We do not accept a convert who states that he is accepting all the mitzvos of the Torah, except for one (Bechoros 30b). Rav Moshe Feinstein discusses a woman who was interested in converting and was willing to fulfill all the mitzvos, except the requirement to dress in a halachically appropriate manner. Rav Moshe rules that it is questionable if her geirus is valid (Shu”t Igros Moshe, Yoreh Deah 3:106).

Sincerity

It is important to accept only converts who want to join the Jewish people and observe the mitzvos for sincere reasons. This is why converts are not accepted whenever there is political, financial, or social gain in being Jewish. For example, no converts were accepted by batei din in the days of Mordechai and Esther, nor in the times of Dovid and Shelomoh, nor will geirim be accepted in the era of the Moshiach. In these era, we assume that the interest in conversion is influenced by the financial or political advantages in being Jewish (Yevamos 24b). For this reason, Megillas Esther (8:17) refers to misyahadim, “those who made themselves into Jews,” without acceptance by the official batei din. Similarly, in an earlier era, unlearned Jews created ersatz “batei din” during the reign of Dovid Hamelech, converting people against the wishes of the beis din hagadol (Rambam, Hilchos Issurei Bi’ah 13:15).

The Rambam explains that the “non-Jewish” wives that Shelomoh married were really insincere converts. In his words, “In the days of Shelomoh, converts were not accepted by the official batei din…however, Shelomoh converted women and married them… and it was known that they converted for ulterior reasons and not through the official batei din. For this reason, the pasuk refers to them as non-Jews… furthermore, the end bears out – because they worshipped idols and built altars to them” (Rambam, Hilchos Issurei Bi’ah 13:15-16).

A successful spouse trap

In all of the above instances, where there is an ulterior motive to convert, should someone manage to become converted, the giyur is valid, provided that the individual, indeed, accepted full mitzvah observance.

Why is this valid bedei’evid?

Since they want to marry this particular spouse, and the only way to accomplish this is by accepting mitzvos and becoming Jewish, he or she has accepted keeping the mitzvos (Ritva and Nimukei Yosef, both to Yevamos 24a).

Because of this rule, we do not accept someone who is converting because he or she wants to marry someone who is Jewish, even if the convert is absolutely willing to observe all the mitzvos (Yevamos 24b; Menachos 44a). However, if the convert followed all the procedures, including full acceptance of all the mitzvos, the conversion is valid, even though we disapprove of what was done (Rambam, Hilchos Issurei Bi’ah 13:15-18).

Times have changed

This assumption was true at the time of the Gemara and the Rambam, when societal norms did not permit someone to marry Jewish without being part of a Jewish community that was halachically observant. In the contemporary world, a non-Jew can marry someone Jewish without any commitment to the Jewish people. Does this affect the status of someone who wants to convert to Judaism for the sake of marriage?

The two greatest Litvishe halachic authorities of pre-war Europe both contended that it does affect the geirus, but they reached diametrically opposite conclusions. Rav Chayim Ozer noted that, since in the contemporary world, any couple can get married regardless of their religious affiliation, someone wanting to convert and observe mitzvos for the sake of marriage may be accepted for conversion lechatchilah (Shu”t Achiezer 3:27).

At the same time, the rav of Kovna was the Devar Avraham, Rav Avraham Kahana-Shapiro, who, upon seeing Rav Chayim Ozer’s responsum, wrote him a letter disagreeing with his conclusion. The Devar Avraham contended the exact opposite: that since someone today may marry out of their religion, there is no longer anything to prove that the potential convert indeed accepted to observe mitzvos (Shu”t Devar Avraham 3:28). This is based on the approach, quoted above in the name of the Ritva and the Nimukei Yosef, that kabbalas mitzvos that is not completely sincere, but is somewhat compelled by the desire to marry this particular individual, is acceptable only when there is no other way for him or her to marry this particular spouse.

Hillel

We are all familiar with the famous stories of Hillel, which present a halachic conundrum with very differing resolutions. Let me review the situations as they are presented by the Gemara: Three different non-Jews approached Hillel, the first requesting that he convert him on condition that Hillel teach him only the Written Torah and stating that he rejects the authenticity of the Oral Torah. The second requested that Hillel convert him on condition that Hillel teach him the entire Torah while the convert would remain standing on one foot, and the third, on condition that he can become the kohein gadol. Hillel accepted all of them as righteous converts (Shabbos 31a), and then convinced them to study the rest of the Torah.

This Gemara presents a very great difficulty. In what way did any of these converts accept the Torah? The first one certainly did not – he only accepted the authenticity of the Written Torah; therefore, his conversion should be invalid.

Tosafos (to Yevamos 109b s.v. Ra’ah) answers that Hillel realized that all three of these gentlemen were sincere and would keep the entire Torah.

The Maharsha (Shabbos 31a) understands that Hillel did not convert these three men immediately, but accepted them as students to teach them Torah. In his opinion, it is permitted to teach Torah to an individual interested in converting, since its purpose is to enable him or her to observe mitzvos properly as a Jew.

On the other hand, Rabbi Akiva Eiger holds that Hillel converted the three of them immediately, and only after they were halachically Jewish was he permitted to teach them Torah, In his opinion, it is forbidden to teach Torah to a non-Jew simply because he is in the process of conversion.

Thus, our opening third question —  May I teach Torah to someone who is interested in becoming Jewish? – is a dispute among these acharonim.

Common practice is to follow the Maharsha’s approach. Therefore, if the beis din is convinced of the sincerity of a potential convert, they will usually recommend an appropriate program whereby he or she can learn about Judaism and become knowledgeable in mitzvah observance and proper Torah perspective, to prepare them for their eventual conversion to Judaism.

Typical anecdotes

I shall now present to our readers various situations thatI know of concerning potential converts.

Tom

Tom was converted by a non-Orthodox rabbi because his father wanted him to be of his own religion and not that of his mother. At one point in Hebrew school, he mentioned his Judaic origins to one of his teachers – who happened to be Orthodox. At a discreet time, the teacher told him that how to live his life was his own decision, but he should be aware that his conversion would not be recognized by an Orthodox Jew, or by the State of Israel, to allow him to marry someone Jewish. When he got older and began searching for authentic Yiddishkeit, he remembered being told that his status as a Jew was questionable, at best. He found a proper beis din for conversion and persuaded them that he was seriously interested in observing the Torah and becoming halachically Jewish. He then underwent a proper geirus. Subsequently, he was set up on a shidduch with a ba’alas teshuvah, and they have built a Torah family together. By the way, he no longer goes by the name of Tom.

Manny

Manny’s mother and younger siblings underwent conversion when his sibs were all under the age of twelve. Manny, who eventually became fully frum, was already a teenager at the time of the conversion and also went through the conversion process, although he later reported that he did not believe that he accepted mitzvos at the time of the conversion, but simply pretended to join the family. Now an adult and observant, he wonders whether he should perform a new geirus.

According to Rav Kook’s opinion that I presented above, he is certainly Jewish and has no need to undergo any further conversion procedure. According to Rav Chayim Ozer, it is unclear whether he is Jewish, since he attests to the possibility that his conversion was invalid, since he did not really accept mitzvos at the time of his conversion. For this reason, the conclusion was that he should undergo another geirus to remove any doubt as to his status. Manny underwent the second geirus procedure, without reciting a brocha upon his immersion.

Jennifer

Jennifer has two Jewish grandfathers, but both of her grandmothers are not Jewish. Raised to consider herself Jewish, she keeps a kosher home, no small undertaking in the community in which she lives. She scheduled an appointment with a rabbi about an Orthodox conversion. The rabbi, yours truly, told her what observing Torah entails, and also shared with her that it would be virtually impossible for her to observe Judaism all by herself. Realistically, she would need to relocate to a place where she can live an Orthodox lifestyle, within an Orthodox community. Not surprisingly, the rabbi never heard from her again. This is exactly what is meant when we say that we discourage potential converts.

Iliana

When Iliana became interested in joining the Jewish people, she went to the first rabbi she found, not realizing that not all rabbis are Orthodox, and not even knowing what is meant by Orthodox Judaism. After undergoing a non-Orthodox “conversion,” which did not require any acceptance of mitzvos, she realized that this was not the type of being Jewish she wanted. She found a rabbi who had her accept mitzvos and granted her a conversion certificate. However, once she became part of a Jewish community and became engaged, she and her chosson discovered that the rabbi who had issued her the “certificate” was completely unknown to all the rabbis they approached. At this point, she underwent a third conversion with a recognized rav to facilitate her marriage and the acceptance of her children as Jewish.

Conclusion

Throughout the years, I have met many sincere geirim and have been truly impressed by their dedication to Torah and mitzvos. Hearing about the journey to find truth that brought them to Judaism is truly fascinating. What would cause a gentile to join the Jewish people, risk confronting the brunt of anti-Semitism, while at the same time being uncertain that Jews will accept him? Sincere converts are drawn by the truth of Torah and a desire to be part of the Chosen People. They know that they can follow the will of Hashem by doing seven mitzvos, but they insist on choosing an all-encompassing Torah lifestyle. A geir tzedek should be treated with tremendous love and respect. Indeed, the Torah gives us a special mitzvah, repeated many times in the Torah, to “Love the Geir,” and we daven for them, daily, in our Shemoneh Esrei!

Jewish Judges and Police

Question #1: Beis din

What is the role of beis din in Jewish life?

Question #2: Police protection

In a community that is run completely according to halacha, who is in charge of appointing and overseeing the police force?

Introduction:

Parshas Mishpatim is the primary parsha regarding halachic civil law, and Parshas Shoftim begins with a mitzvah to appoint shoftim, judges, or as we usually call them dayanim (singular dayan), and shoterim (singular shoteir), enforcement officers, bailiffs or police. The Torah states that you must appoint judges and police in all your “gates,” meaning in all your cities.

Rashi quotes the passage of Gemara (Sanhedrin 16b) that there is a requirement min haTorah to appoint judges in every city and for every tribe. We need to clarify a point: If a beis din is appointed for every city, what is added by appointing a beis din for every sheivet?

The rishonim already address this issue. According to Tosafos (Sanhedrin 16b s.v. Shoftim), the Gemara is teaching that if the border separating two shevatim divides a city between them, the two sections should each have its own beis din. The Ramban (beginning of parshas Shoftim) mentions this approach, and then suggests a different way to understand the Gemara: Each sheivet has a beis din with jurisdiction over the entire sheivet, greater responsibility and authority than has a city’s beis din, whose authority is limited to the city’s borders. Thus, although a city’s beis din can force anyone who lives in its city to follow their directives or to appear before them for litigation, they cannot obligate someone who lives outside their city to appear before them or to follow their orders. A sheivet’s beis din has the ability to force any member of that sheivet to appear before them for litigation. It also has the ability to create a gezeirah that is binding on the entire sheivet.

23 Judges!

The Rambam (Hilchos Sanhedrin 1:1, 3) rules that each city and region in Eretz Yisroel has its own beis din of 23 judges, and that smaller towns and villages have a beis din of three dayanim (Hilchos Sanhedrin 1:4). The Lechem Mishneh (1:1) explains that the Rambam uses the word “region” to mean the same thing that we have been calling sheivet, and also explains why the Rambam changes the term.

The Rambam elaborates on all the different batei din that must be created. There was a chamber in the Beis Hamikdash called the lishkas hagazis, which was the meeting place of the main beis din of Klal Yisroel, the Sanhedrin, also called the Beis Din Hagadol, which consisted of 71 judges. There was a second, smaller beis din of 23 dayanim that was located near the entrance to the Beis Hamikdash, and a third beis din, also of 23 dayanim, that was located near the entrance to the Har Habayis.

The authority of the Sanhedrin

The Sanhedrin has much authority and many roles to play. It is the final court of halachic appeals, and the final decider of halacha. Its interpretation of Torah sheba’al peh is authoritative. Any halachic issue that is uncertain or disputed by a lower beis din could eventually be referred to the Beis Din HaGadol for a binding decision.

When the Sanhedrin exists, the Jewish calendar is determined by a small beis din appointed especially for this purpose by the nasi, the head of the Sanhedrin.

All the other batei din mentioned above — the smaller ones on the Har Habayis and at the entrance to the Beis Hamikdash, and the batei din of the shevatim and the cities – are appointed by the Sanhedrin.

The Sanhedrin also fulfills several political and administrative roles. It appoints the king of the Jewish people. Many other halachos require the participation or agreement of the Sanhedrin, including a decision whether to wage war and to expand the halachic boundaries of the Beis Hamikdash or of Yerushalayim (Mishnah Shevuos 14a; Rambam, Hilchos Sanhedrin 5:1). Thus, the Sanhedrin is not only the supreme halachic authority, but it is also quite literally the “power behind the throne,” “the power behind the courts,” and, at the same time, the court of final appeal. It has the final say in all matters, both temporal and spiritual.

Who can be a judge?

There are many technical requirements that all members must meet, among them that they must all be superior talmidei chachomim and yirei shamayim (G-d fearing individuals), wise, perceptive, analytic, humble, truth-loving, personable, of good reputation and possess a basic knowledge of many secular areas, such as medicine and astronomy (Rambam, Hilchos Sanhedrin 2:1, 7). The Rambam (Hilchos Sanhedrin 2:8) describes how the Sanhedrin would send representatives to locate qualified dayanim and appoint them to their local beis din. As places on the higher batei din opened, they would promote local dayanim up the chain to the next tier, and so on. The Rambam also emphasizes the importance of appointing appropriately qualified people to be dayanim, and the catastrophe that results from appointing those who are unqualified or inappropriate (Hilchos Sanhedrin 3:8).

Semicha

All members of the Sanhedrin and, indeed, of all the lower courts must also receive the special semicha that Moshe bestowed upon Yehoshua authorizing him to rule on all areas of Jewish law. This special semicha, which existed from the time of Moshe Rabbeinu until sometime during the era of the Gemara, authorized the recipient to rule on capital and corporal cases (chayavei misas beis din and malkus) and to judge cases involving kenasos, penalties that the Torah invoked. Only a beis din consisting exclusively of dayanim ordained with this semicha may judge these areas of halacha (Rambam, Hilchos Sanhedrin 4:1).

In today’s world, there are several levels of semicha, all of them of a lower level than that granted by Moshe Rabbeinu. The most basic semicha, yoreh yoreh, authorizes the recipient to rule on matters of kashrus and similar areas. A more advanced level of semicha called yodin yodin authorizes its recipient to rule as a dayan on financial matters. A higher level, no longer obtainable today, is called yatir bechoros and authorizes its recipient to rule on whether a first-born animal is blemished and no longer acceptable as a korban, which permits the animal to be shechted for its meat (see Sanhedrin 5a).

The role of a local beis din

The local beis din’s responsibility in a community is also quite multi-faceted. They are not only the judicial branch of the government, charged with ruling on local dinei Torah and interpreting the halachos for local practice, but they are also the executive, or administrative, branch of government, responsible to supervise that the community and its individuals observe halacha fully and correctly. In this capacity, they are responsible to make sure that the weights and measures in the marketplace are honest (Rambam, Hilchos Sanhedrin 1:1) and that the prices charged by stores do not exceed what halacha permits. The local beis din is responsible to make sure that no one overcharges for staple products (ibid.; Shulchan Aruch, Choshen Mishpat 231:20).

Overseeing that the community observes halacha correctly is also a responsibility of the beis din. For example, the Rambam and Shulchan Aruch rule that beis din supervises that yomim tovim do not become the cause for inappropriate social activities. This includes assigning police to patrol parks and other relaxing areas to maintain proper standards of public conduct (Rambam, Hilchos Yom Tov 6:21, Shulchan Aruch Orach Chayim 529:4). Beis din is responsible to make sure that duchening was performed only by kosher kohanim (Kesubos 25a). It is their job to make sure that no one works on chol hamoed in violation of the halacha (Rambam, Hilchos Yom Tov 7:4), that people keep their pledges to tzedakah (Rosh Hashanah 6a), that graves and other tamei meis areas are properly marked, and that people do not plantor maintain kelayim (Rambam, Hilchos Yom Tov 7:11).

The beis din assumes responsibility to protect individuals who cannot oversee their businesses or properties, such as, someone who fled to avoid danger, was kidnapped or captured. Beis din will appoint someone to manage the individual’s properties and businesses (Shulchan Aruch Choshen Mishpat 285:2). They are also responsible to see that the properties of orphaned minors are properly managed (for example, see Shulchan Aruch Even Ha’ezer, 112:11).

Included in this responsibility is that, if a father cannot or does not give his son a bris milah, the beis din makes sure that the mitzvah is performed (Kiddushin 29a; Shulchan Aruch Yoreh Deah 261:1).

Smaller batei din

In addition to the officially appointed batei din, in earlier generations there were local batei din, appointed by a community to oversee its own matters. For example, the kohanim had their own batei din, who were authorized to make rules and new takanos that applied only to the kohanim (see Pesachim 90b; Kesubos 12a).

Chutz la’aretz

The Ramban (beginning of Parshas Shoftim) notes that the posuk implies that there is no requirement min haTorah to establish a beis din outside of Eretz Yisroel. This is because the Torah requires appointing judges and bailiffs in your gates, which means the gates of Jewish cities in Eretz Yisroel. However, the Ramban notes that the Gemara (Makkos 7a) rules that once Klal Yisroel arrives in and settles Eretz Yisroel, there is an obligation min haTorah to have a beis din in chutz la’aretz also, although not in every city, but only in “districts.”

Min haTorah or not?

The Ramban concludes that establishing batei din outside Eretz Yisroel isrequired min haTorah only when there are dayanim who have achieved the highest level of semicha, that which is a continuation of what Moshe Rabbeinu conferred on Yehoshua. As I mentioned above, this semicha was discontinued during the era of the Gemara. There have been several attempts to reestablish this semicha, the most famous of which was when the Mahari Beirav was the rav of Tzfas, and Rav Yosef Karo was a member of his beis din. However, none of these attempts succeeded. The Ramban concludes that, although we no longer have a Torah obligation to establish batei din in chutz la’aretz, there is a rabbinic requirement to do so.

How do we litigate?

Over the years, I have been asked many questions about the way batei din operate. Most of these questions stem from a misunderstanding of legal procedures in general, or from a lack of knowledge about how a beis din functions.

Here is a typical example, lifted from my records. The din Torah was the result of a business partnership that had soured. I received the following e-mail communication: “I have asked Mr. F. to tell me what he is claiming. He has not responded, but has clammed up about his claim. He knows what I am claiming and he said that I have to sign an arbitration agreement in beis din and only then will he present what he is claiming from me. I am asking if this is just — he knows what I am claiming but what he is claiming will be a surprise.”

I answered: “Mr. F. is under no obligation to reveal to you what he feels you owe him, without an agreement that the two of you will go to binding arbitration in beis din. Telling him the basis of your claims does not require him to reveal any information. If you feel that you can disprove his claims, you should tell that to the beis din, and you have a right to postpone the proceedings to allow you the time to present your proofs.

In the interim, you can agree to go to beis din, or you can suggest that the two of you discuss the matter in the presence of a disinterested party in the hope of negotiating some type of settlement. However, he is under no obligation to agree to this. If you receive a summons to beis din, you are required to respond.”

By the way, when choosing to go to a beis din, the almost-universal tendency is to find a beis din where I will “win” my case. However, the mitzvah specifies that you should go to the beis din that is most expert (Sanhedrin 32a). The Gemara implies that this is a mitzvah min haTorah, derived from the words in Parshas Shoftim, tzedek tzedek tirdof, which the Gemara explains to mean haleich achar beis din yafeh, “find the most expert beis din” to litigate your case, so that it is resolved correctly.

Turf wars

What do you do if the other party insists that you go to their choice of beis din?

I mentioned earlier that the Ramban explains that the dayanim of a sheivet have greater jurisdiction than do those of a city, who cannot force someone from outside their city to come before them for litigation. A sheivet’s beis din has the ability to force anyone in their sheivet to come to them for litigation. The same authority applies to a city’s beis din relative to a city’s inhabitants. Therefore, if our beis din system were able to work the way the Torah designed it, the official dayanim of a city would be able to require litigants to appear before them.

Because the countries in which we live will not compel halachic observance, we cannot legally coerce someone to appear before an official city beis din. But an observant Jew knows that he must appear before beis din when summoned.

The person being sued (the defendant) is usually assumed to have the right to choose which beis din will hear the case, as long as it is in his city of residence. However, this is not ironclad. If the defendant chooses a beis din that will be more expensive for the claimant, or he is trying simply to inconvenience the claimant, there is no right to choose this option over a more-convenient, less-expensive choice. If the defendant visits or does business in the city where the claimant lives, and the claimant rarely travels to the defendant’s city, the beis din in the claimant’s city can demand to judge the case (Shu”t Maharshdam #103; Shu”t Igros Moshe, Choshen Mishpat 1:5; Shu”t Yabia Omer 7:Choshen Mishpat:4). Under these circumstances, a proper beis din will ignore the defendant’s request for choice of venue, and should he not respond to his summons, rule him a lo tzayis dina, someone who does not obey the laws of the Torah, which has many ramifications (Aruch Hashulchan, Choshen Mishpat 26:2, 5; Shu”t Imrei Yosher #38).

Conclusion

A Torah Jew must realize that Hashem’s Torah is all-encompassing, and that every aspect of his life is governed by Torah law. A Jew hopes to manage his business relationships without ever resorting to litigation. If there is an unfortunate “misunderstanding,” the two parties should discuss the matter and, if the matter remains unresolved, they should try discussing it with the guidance of a third party, possibly a rav. However, should all these approaches not succeed, the avenue of halachic litigation exists.

How Does a Heter Iska Work?

Andy Gross, a businessman who is proud that he is now observing mitzvos, is on time for his appointment. After a brief greeting, I ask him what brings him to my office on this beautiful morning.

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“I recently learned that even though the Torah prohibits paying or receiving interest, there is something called a heter iska that legalizes it. How can we legitimize something that the Torah expressly prohibits?”

Indeed, Andy’s question is both insightful and important, and deserves a thorough explanation. Why don’t you join us!

I note that this week’s parsha discusses the prohibition of interest:

Do not collect interest from him, for you shall fear Hashem and allow your brother to live. Therefore, do not provide him money with interest (Chapter 25:36-37).

This verse teaches three different mitzvos:

1. Do not collect interest from him. This entails a prohibition on the lender against collecting interest (Bava Metzia 75b).

2. Allow your brother to live. From the words allow your brother to live we derive a positive commandment that one who did collect interest is required to return it (Bava Metzia 62a).

3. Do not provide him money with interest. This prohibits creating a loan that involves interest, even if the lender never collects it (Bava Metzia 62a). A lender who later collects the interest also violates the first prohibition, and if he subsequently does not return it, he violates the positive commandment.

Not only does the lender violate the prohibition against ribbis, but also the borrower, the witnesses, the broker, the co-signer, the scribe who writes up the loan document (Mishnah Bava Metzia 75b), the notary public who notarizes it, and possibly even the attorney who drafts a document that includes provisions for ribbis,all violate the laws of ribbis (Bris Yehudah 1:6). Thus, anyone causing the loan to be either finalized or collected violates the Torah’s law.

“The halachos of ribbis are quite complex,” I told Andy. “From my experience, even seasoned Torah scholars sometimes mistakenly violate the prohibition of ribbis. For example, having a margin account at a Jewish-owned brokerage, charging a Jewish customer for late payment, or borrowing off someone else’s credit line usually entail violations of ribbis. I even know of Torah institutions that ‘borrow’ the use of someone’s credit card in order to meet their payroll, intending to gradually pay back the interest charges.”

“Why does the last case involve ribbis?” inquired an inquisitive Andy.

“Let me present a case where I was involved. A Torah institution was behind on payroll, and had no one available from whom to borrow. The director asked a backer if the institution could borrow money through his bank credit line.”

“I still do not see any ribbis problem here” replied Andy, “just a chesed that costs him nothing.”

“To whom did the bank lend money?” I asked Andy.

“As far as they are concerned, they are lending money to the backer, since it was his credit line.”

“So from whom did the institution borrow? The bank did not lend to them. Doesn’t this mean that really two loans have taken place: one from the bank to Mr. Chesed, and another from him to the institution? The loan from the bank incurs interest charges that Mr. Chesed is obligated to pay. Who is paying those charges?”

“It would only be fair for the institution to pay them,” responded Andy.

“However, if the institution pays those charges, they are in effect paying more money to Mr. Chesed than they borrowed from him, since they are also paying his debt to the bank. This violates ribbis. The fact that the institution pays the bank directly does not mitigate the problem (see Bava Metzia 71b).”

Andy was noticeably stunned. “I have always thought of interest as a prohibition against usury – or taking advantage of a desperate borrower. Here the ‘usurer’ did not even lend any money, and thought he was doing a tremendous chesed for tzedakah; he did not realize that his assistance caused both of them to violate a serious prohibition!”

“What is even more unfortunate,” I continued, “is that one can convert most of these prohibited transactions into a heter iska that is perfectly permitted.

WHAT IS A HETER ISKA?

“A heter iska is a halachically approved way of restructuring a loan or debt so that it becomes an investment instead of a loan. This presumes that the investor assumes some element of risk should the business fail, which is one basic difference between an investment and a loan. An investor could potentially lose money, whereas a lender does not lose because the borrower always remains responsible to pay.

“One is permitted to create a heter iska even when the goal of both parties is only to find a kosher way of creating a transaction that is very similar to an interest- bearing loan (Terumas Ha’deshen #302). The words heter iska mean exactly that: performing an allowable business deal that is similar to a prohibited transaction. As we will see, the structure must still allow for an element of risk and loss as accepted by halacha, otherwise it fails the test of being an investment.

“There are several ways of structuring a heter iska, and, indeed, different situations may call for different types of heter iska. In order to explain how a basic heter iska operates, I must first explain an investment that involve no ribbis, so that we can understand how a heter iska was developed. For the balance of this article, we will no longer refer to “borrowers” and “lenders.” Instead, I will refer to a “managing partner” or “manager” and an “investor.”

Andy interrupts my monologue. “Was heter iska used in earlier generations?”

THE EARLIEST HETER ISKA

“The concept of heter iska is many hundreds of years old. The earliest heter iska of which I am aware is suggested by the Terumas Ha’deshen (1390-1460). His case involves Reuven, who wishes to invest in interest-bearing loans to gentile customers, but does not want to take any risk. Shimon, who is an experienced broker of such loans, is willing to take the risk in return for some of the profit on Reuven’s money.

“Reuven wants a guarantee that he will receive back all his capital regardless of what actually happens in the business venture. Essentially, this means that Shimon is borrowing money from Reuven and lending it to gentiles; this would result in a straightforward Torah prohibition of ribbis, since Shimon is paying Reuven a return on the loan. Is there any way that Reuven and Shimon can structure the deal without violating the Torah’s prohibitions against paying and receiving interest?”

At this point, Andy exclaims: “Either this is a loan, and Reuven’s money is protected, or it is an investment, and it is not. How can Reuven have his cake and eat it too!”

“Actually, all the attempts at creating heter iska are attempts to find a balance whereby the investor is fairly secure that his assets are safe, and yet can generate profit. In your words, to try to have his cake and eat it.

PIKADON – INVESTING

“Let me explain how a heter iska accomplishes both these goals, by developing a case: Mr. Sweat has a business idea, but he lacks the capital to implement it. He approaches Mr. Bucks for investment capital. If Bucks has sufficient confidence in Sweat’s acumen to build a business, he might decide to invest even without knowing any details about it, since Sweat knows how to provide handsome profits. None of this involves any ribbis issues since there is no loan and no one is paying to use the other person’s capital. This business venture is called a pikadon.

GUARANTEEING THE INVESTMENT

“Your model is highly theoretical,” Andy points out, “since it assumes that Mr. Bucks invests without much assurance. Few people I know would entrust someone with their money without some type of guarantee.”

“You have hit on a key point – let us see how halacha deals with this. Whenever an investor entrusts someone with funds, the Torah permits him to demand an oath afterwards that the manager was not negligent. Therefore, Bucks may insist that Sweat swears an oath that he was not negligent with the money, and also that he reported accurately how much profit Bucks receives. An agreement may even require that Sweat swears this oath by using G-d’s name and while holding a Sefer Torah in front of the entire congregation.”

“That should certainly get Sweat to sweat,” quipped Andy. “But then again, assuming Mr. Sweat is a frum Jew, is he going to want to swear any oath at all?”

“That is exactly the point that secures Bucks’ bucks, since observant people would pay a substantial sum of money to avoid swearing an oath. The heter iska specifies that the manager has the option of swearing the oath and paying only what the investor is entitled. However, the manager also has the option of substituting an agreed-upon payment for the oath. Since observant Jews would rather pay the fixed return rather than swear an oath, we accomplish that the investor is reasonably secure, although no loan and no ribbis transpired. The result is not a loan, but a cleverly structured investment.”

After waiting a few seconds and absorbing what he just learned, Andy continued:

“Is there anything else I need to know about a heter iska before I use one?”

“I need to explain one other very important detail that, unfortunately, people often overlook. Most forms of heter iska state that the investor paid the manager a specific sum of money, say one dollar, for his time involved in the business venture. It is vitally important that this dollar be actually paid; otherwise there is a ribbis prohibition involved. Yet I know that many people overlook this requirement and do not understand its importance.”

“Why is this important?”

STANDARD ISKA – A SILENT PARTNERSHIP

“The standard heter iska assumes that the arrangement is half loan and half pikadon. This means that if Mr. Bucks invests $100,000 with Mr. Sweat to open a business, Mr. Bucks and Mr. Sweat become partners in the business because half of the amount is a $50,000 loan that Mr. Sweat must eventually repay, and the other half is a $50,000 outlay that Mr. Bucks has invested in a business that Mr. Sweat owns or intends to open. Bucks may receive no profit on the $50,000 loan he extended — if he does, it is prohibited ribbis. However, he may receive as much profit on the investment part of the portfolio as is generated by half the business. As a result, Mr. Bucks and Mr. Sweat are both 50% partners in the business.

RECEIVING PROFIT FROM THE LOAN

“However, there is an interesting problem that we must resolve. Bucks invested a sum with Sweat, for which he received a profit, and he also loaned Sweat money, for which he may not receive any profit. However, the return on the investment was realized only because Mr. Sweat is investing his know-how and labor to generate profit for the partnership – know-how and labor for which Bucks did not pay. Why is this not payment for Mr. Bucks’ loan, and therefore ribbis?

“This concern is raised by the Gemara, which presents two methods to resolve the problem.

“One approach is that the investor pays the manager a certain amount for his expertise and effort. As long as both parties agree in advance, we are unconcerned how little (or much) this amount is (Bava Metzia 68b). However, there must be an amount, and it must actually be paid. Even if they agree to a sum as paltry as one dollar, this is an acceptable arrangement, similar to Michael Bloomberg’s accepting one dollar as salary to be mayor of New York.”

“I now understand,” interjected Andy, “why it is so important that this amount be actually paid. If Mr. Sweat receives no compensation for his hard work on behalf of Mr. Bucks’ investment, it demonstrates that he was working because he received a loan, which is prohibited ribbis.”

“Precisely. However, there is another way to structure the heter iska to avoid the problem; have the profit and loss percentages vary. This means that if the business profits, the managing partner makes a larger part of the profit than he loses if there is a loss. For example, our silent and managing partners divide the profits evenly, but in case of loss, our manager is responsible to pay only 30% of the loss, which means that he owns only 30% of the business. The extra 20% of the profits he receives is his salary for managing the business. He is therefore being paid a percentage of Bucks’ profits for his efforts, similar to the way a money manager or financial consultant is often compensated by receiving a percentage of the profits on the funds he manages. Personally, I prefer this type of heter iska, but the type I described previously is perfectly acceptable as long as Mr. Sweat receives some compensation for his effort and know-how.

“The heter iska I have seen used by the Jewish owned banks in Israel includes this method. The bank invests 45% in a “business” managed by the mortgage borrower, but the borrower is entitled to 50% of the profits. Thus, he is ‘paid’ five per cent of the profits to manage the investment.”

“Can you explain to me how the Terumas Ha’deshen’s money lender would use a heter iska?” inquired Andy.

“Actually, his heter iska varied slightly from what we use today. Using today’s accepted heter iska, Shimon, the manager, accepts the money with the understanding that he is borrowing part and managing the balance for Reuven. He is compensated for his efforts according to one of the approaches mentioned above, and agrees in advance to divide the profits. He also agrees that he will swear an oath guaranteeing that he was not negligent in his responsibilities, and the two parties agree that if he subsequently chooses to pay Reuven a certain amount he is absolved of swearing the oath. Thus, Reuven’s return is not interest on a loan, but the amount Shimon had agreed to pay rather than swear how much he actually owes Reuven.

“This approach has been accepted by thousands of halachic authorities as a valid method of receiving a return on one’s investment that looks like interest but is not. The Chofetz Chayim notes that if someone can lend money without compensation, he should certainly do so and not utilize a heter iska, because he is performing chesed (Ahavas Chesed 2:15). Heter iska is meant for investment situations, and should ideally be limited to them.

“I would like to close by sharing with you a thought from Rav Samson Raphael Hirsch about the reason why the Torah prohibited interest. He notes that if the Torah considered charging interest to be inherently immoral, it would have banned charging interest from non-Jews, and also would have prohibited only the lender and not the borrower. Rather, Rav Hirsch notes, the Torah’s prohibition is so that the capital we receive from Hashem is used for tzedakah and loans, thereby building and maintaining a Torah community. The Torah’s goal in banning the use of capital for interest-paying loans is to direct excess funds to chesed and tzedakah.”

Conflict of Interest

The Torah teaches that Yitzchak loved Esav because ציד בפיו….

Question #1: Conflict of Interest

Does the Torah discuss a government official having a conflict of interest?

Question #2: Cash or Credit?

Is there any violation of shochad if someone receives a service that does not have a market value?

Question #3: Friend or Enemy?

Are you permitted to judge a case in which a friend of yours is one of the litigants? What about someone who davens in the same shul? Or someone who consistently rubs you the wrong way?

Introduction

There are three places where the Torah mentions the prohibition against accepting a bribe, once in parshas Mishpatim, a second time at the very beginning of parshas Shoftim and again in parshas Ki Savo. In parshas Mishpatim, the Torah states: “Do not accept a bribe, because bribery blinds those who see clearly and corrupts just words” (Shemos 23:8). In parshas Shoftim, the Torah states: “Do not pervert justice… do not accept a bribe, because bribery blinds the eyes of the wise and corrupts just words” (Devorim 16:19). And in parshas Ki Savo, the Torah states: “Cursed is he who accepts a bribe.” Thus, we see that not only is there a lo sa’aseh prohibition, mentioned twice in the Torah, for accepting a bribe, it is also accompanied by a curse, one that was declared by the entire people of Israel.

We all recognize that paying a judge to rule in one’s favor is forbidden and, in the contemporary world, can lead to fines, imprisonment or both, as well as a tarnished reputation. We will soon learn that what halacha prohibits under the category of the taking of shochad, bribery, is much more far-reaching than what anyone would consider bribery in today’s world. Virtually all cases that we would consider “conflict of interest,” which is a lesser crime in today’s world than straightforward bribery, are prohibited by the Torah as shochad. In other words, making a decision on the basis of a “conflict of interest” is just as forbidden in halacha as receiving a direct bribe on the matter. Both are severe Torah prohibitions; violating either invalidates the individual from being permitted to be a judge or even a witness, and both are included in the curse that the Torah metes out in parshas Ki Savo.

A very exclusive club

We see in Chazal that even minor reasons were considered sufficient for a judge to disqualify himself. The Gemara (Kesubos 105b) notes several instances in which great scholars excluded themselves from being judges:

1. Shmuel was crossing a stream, probably on some type of unsteady rope bridge (or, according to the Rambam, he was exiting a ferry), when a passerby extended a hand to steady him. Shmuel, realizing that the passerby was not someone he knew locally, inquired as to what brought the visitor to town. The passerby replied that he had a din Torah with someone.

Shmuel informed the visitor that, since he had assisted Shmuel on the rope bridge, Shmuel was excusing himself from being a judge in the case (Kesubos 105b). Shmuel pointed out that it is inappropriate to be a judge in any situation when the judge has a tendency to look at one side more favorably than the other. Note that there was no conflict of interest or any implied bribery in this case, since there is no indication that the service was rendered in anticipation of better treatment in beis din. Also note that Shmuel would not gain anything if he ruled in favor of the passerby or against him. From this we see how careful a judge must be to avoid a case where he may have a conflict of interest, even as little as a debt of gratitude for a minor favor, which might influence his decision.

According to the Rambam (Hilchos Sanhedrin 23:3), in this case, and the three cases I will be quoting next, the judge is invalid min hadin, whereas, according to Tosafos, these dayanim were permitted to judge the situations, but chose not to.

2. Ameimar was sitting as a judge, probably in some outdoor venue, when a feather landed on his head. A well-doer quickly removed the feather from Ameimar’s head. Ameimar asked him what brought him to beis din, to which he replied that he was waiting his turn for his own litigation. Ameimar then informed him that he, Ameimar, now did not consider himself objective enough to be the judge in the case, since the well-doer had performed a chesed for him. In this case, Tosafos rules that Ameimar was halachically permitted to be the judge, since we do not assume that such a small kindness would render it more difficult for the judge to maintain his objectivity. However, Ameimar withdrew himself from litigating, considering it difficult for him to judge the case objectively, since the well-doer had done him a favor.

3. Some spittle was lying on the floor in front of Mar Ukva, when a passerby saw and covered it. When Mar Ukva asked the passerby what brought him to town, he answered that he had some litigation. Mar Ukva then replied that he (Mar Ukva) could no longer serve as a judge in the passerby’s litigation, since the latter had helped him and he would be inclined to favor him.

At this point, we can address the second of our opening questions: Is there any violation of shochad if someone receives a service that does not have a market value?

The answer is we see that there certainly could be a violation, if it was done intentionally to influence the decision that a dayan will be making.

4. The sharecropper of Rabbi Yishmael the son of Rabbi Yosi paid his rent with a basket of fruit, brought every Friday. One time, he showed up with his fruit on Thursday, instead. When Rabbi Yishmael inquired why the rent was paid a day early, the sharecropper answered that he had some litigation to attend to, and since the beis din was open only on Monday and Thursday, he brought his rent money early, to save himself the trip.

Rabbi Yishmael was a judge in the beis din in this town. Notwithstanding that the sharecropper had paid a day early because of his own convenience and was completely forthcoming that he was not expecting any favors in the litigation as a result, Rabbi Yishmael notified the sharecropper that, because the payment was earlier than required, he was not accepting it. In addition, Rabbi Yishmael disqualified himself from judging the case. Instead, Rabbi Yishmael appointed two other scholars to serve in his place as the judges. (The commentators discuss why he replaced himself with two other judges, but answering that question takes us away from our topic.)

Rabbi Yishmael remained in the courtroom as a spectator. While the two parties were sparring with their claims and counterclaims, Rabbi Yishmael found himself thinking of legal arguments that the sharecropper could use – in other words, he felt himself reacting to the litigation as the sharecropper’s advocate, rather than as a bystander who could judge objectively. This, of course, justified Rabbi Yishmael’s earlier decision to withdraw from judging the case. In summary, he noted: “Those who accept bribes should have their bodies swollen. Look how I lost my objectivity, notwithstanding that I did not accept the early payment, and it was money that was legitimately owed me. How can anyone possibly expect to judge properly any matter in which he has a conflict of interest?”

The Gemara points out that bribery does not necessarily have to be cash, but can be a different form of benefit. It also explains that any time a judge receives benefit from one side in litigation, this creates a conflict of interest that distorts the judge’s objectivity and may disqualify him from rendering objective judgment.

Note that had the sharecropper not brought payment a day earlier, there would be no halachic problem for Rabbi Yishmael to judge the case, even though it involved a person who worked on his field.

Conflict of interest

At this point, let us discuss our opening question: Does the Torah discuss a government official having a conflict of interest?

Several major authorities rule that anyone with communal responsibility must be very careful not to receive any remuneration from an interested party in an issue that he is deciding (Pilpula Charifta, Sanhedrin, 3:17; Shu’t Chasam Sofer; Pischei Teshuvah, Choshen Mishpat 34:27; Aruch Hashulchan, Choshen Mishpat 9:1). This should also affect issues of conflict of interest when fundraising for political purposes.

Friend or enemy?

The Gemara (Kesubos 105b) states that a person should not be a judge for a case involving a close friend or an enemy. The rishonim dispute whether this law is true only when the party to the case is a very close friend or a true enemy (Tosafos ad loc.), or even if he is not his best friend or biggest enemy (Rambam, Hilchos Sanhedrin 23:6). The Rambam adds that the best situation is when the judge does not know either party.

It is permitted to be the judge for a case involving a business associate or a neighbor, provided the judge feels that he can be truly objective. If he feels a bias toward one side or the other, he should refrain from judging the case.

Paying a bribe

It is interesting to note that the violation of bribery applies only to the judge who receives the bribe. Unlike interest, where the Torah prohibits not only the lender from receiving interest, but also the borrower who pays interest with a specific lo saaseh¸ the individual who bribes a judge or official to provide him with a benefit to which he is not entitled violates only the Torah’s general prohibition of causing someone else to sin (lifnei iveir lo sitein michshol) [Tur and Shulchan Aruch, Choshen Mishpat 9:1].

Visual acuity

The Gemara makes a very interesting comparison regarding the foolishness of people. It is not uncommon for a person to expend copious sums of money on the possibility of finding a cure to alleviate some visual issues from which he is suffering. Yet, the same person will allow himself to have a conflict of interest, notwithstanding that he has blinded his ability to see the matter objectively (Kesubos 105a).

Poor judge

There is another situation in which someone should not be a judge because of a subtle conflict of interest. If a person always needs to borrow things and has nothing to lend in return, he is disqualified from being a dayan (Kesubos 105b), even if he has not yet borrowed anything. If the judge has something that he can lend when the lender needs it, then he (the judge) feels no outstanding obligation to that person. However, if he has nothing to lend him, he feels a sense of debt to the person who assisted him that makes it difficult for him to be objective when he is forced to judge him.

“If the judge is comparable to a king who has no need ever to borrow an item from someone else, he will succeed in holding up the world through proper justice” (Kesubos 105b, based on Mishlei 29:4). However, the opposite is true if the judge is poor. As the Gemara expresses it, he can be compared to a kohein who visits the silos of those who have recently brought in their harvest, in the hope that he will receive the gifts coming to the kohein because he is in the right place at the right time. Ultimately, having a dayan who is very poor may easily result in justice being skewed.

Salary?

The Gemara discusses whether the judicial practice of the amora Karna was acceptable according to halacha. Karna was not a salaried judge, but a Talmudic scholar whose livelihood came from smelling wine to determine whether it was beginning to sour. In order to judge a case, Karna would charge each litigant one sela (Kesubos 105a with Rashi). The Gemara, in discussing why Karna could charge this money, rules that payment for judicial services may fall under three categories, two of which are always forbidden, and the third of which is sometimes permitted. They are:

A. Bribery

Someone being paid for a favorable decision involves shochad, even when both litigants pay him. According to the Derisha (Choshen Mishpat 9:1), this means that both litigants paid the judge to be certain to rule correctly, if their argument is justified; yet, this is forbidden min haTorah, because it is still considered a form of shochad.

B. Wages to rule

The Mishnah (Bechoros 4:6) rules that a judge is forbidden to be paid money for the expertise of rendering a judicial decision, even when both litigants pay him equally (Kesubos 105a). This is forbidden because we are required to observe mitzvos without financial remuneration. This is a vast topic germane to many other areas of halacha, which we will leave for a different article.

C. Lost time

It is possible that the dayan is paid what is called sechar batalah, payment for the time he has lost while involved in the case. The Gemara’s conclusion is that if taking time off from his livelihood to judge the case caused him to lose money, the dayan is entitled to sechar batalah.

The Gemara chooses a couple of examples of this ruling. In addition to the above-mentioned case of Karna, another case it mentions was the practice of Rav Huna, who told the litigants that they should hire a workman who would take his (Rav Huna’s) place and water his fields while he was judging their case.

If it is unclear whether he suffered any loss, he should lechatchilah not collect sechar batalah, but if he received payment, the ruling is nevertheless valid. An example would be where it is possible, but uncertain, whether a customer will arrive while he is busy judging. Since it is uncertain that he loses anything by judging, lechatchilah he should not collect sechar batalah, but if he received payment, the ruling is nevertheless valid.

The Rambam emphasizes that he can receive only the amount that he is actually losing, and no more (Hilchos Sanhedrin 23:5).

The Rambam adds another condition to the case of sechar batalah: The dayan must take from both litigants, and when both of them are in front of him. This is to avoid anyone from thinking that the dayan is receiving illegitimate or inappropriate compensation (Kesef Mishneh).

In the contemporary world, the most common application of this principle is when a dayan is paid to be available to serve on a beis din, such that he can no longer seek employment or other income during the time he has reserved for a din Torah. The Gemara rules that whether this is permitted or not lechatchilah depends on whether he will definitely be losing money or not.

Here is an example which is certainly permitted. A dayan I know does well-paying consultancy work. He instructed the beis din that sought his availability that he usually earns a certain amount per hour, and that he would definitely lose this amount of money while preoccupied with a din Torah. In this case, he is entitled to compensation from the two litigants, provided the two sides pay him equally. According to the Rambam, the two litigants should pay him in front of each other.

To avoid any appearance of impropriety, the proper approach is that a Jewish community hire dayanim and provide appropriate salaries. To quote the Shulchan Aruch, “It is a requirement on the Jews to provide their judges with a livelihood” (Choshen Mishpat 9:3). The community is permitted to accept private donations for this purpose, without concern that the dayanim will favor those who made major donations for this cause, which is, after all, their salaries.

It is preferred that all fundraising for these salaries be at the beginning of the year for the coming year, to avoid any conflict of interest (Tur and Rema, Choshen Mishpat 9:3). If the funds are raised at the beginning of the year, then the money is available when dinei Torah occur without the donors having direct influence.

Still, an individual judge who feels a bias in favor of one of the litigants, because of benefits that he has received in the past or because the litigant is a prominent member of the community, should excuse himself from judging the situation. A similar halacha is true if a litigant is a prominent member of his shul – the dayan or rav should withdraw from being the dayan if he feels that he cannot judge the matter objectively.

Conclusion

As we now see, the details of not taking shochad are far more extensive than what we usually call “bribery” or even “conflict of interest.” The Chasam Sofer rules that when the membership of a community or congregation votes to elect a rabbi, the members have the halachic status of dayanim and must be concerned about any issue of shochad. They must be careful that they vote for whom they think will be best for their community and not because of a personal interest.

This mitzvah helps us highlight the importance of being responsible for other people and for their property and rights. We should pray to be successful messengers, whenever we are entrusted with carrying out Hashem’s will for our community.

Calendar Controversy

When Yamim Nora’im “Fell” on Disputed Days

In the year 4681 (920), the greatest halachic authority in Eretz Yisrael, Rav Aharon ben Meir, proclaimed that the months of Marcheshvan and Kislev of the coming year (4682) would both have only 29 days. As a result, the next Pesach (4682) would begin on a Sunday and end after Shabbos, in Eretz Yisrael, and after Sunday, in Chutz LaAretz.

Prior to Ben Meir’s proclamation, all had assumed that Marcheshvan and Kislev that year would both be 30 days long, which would result in Pesach beginning two days later — on Tuesday, and ending on Monday, in Eretz Yisrael, and on Tuesday, in Chutz LaAretz. Thus, Ben Meir was pushing Pesach forward two days earlier than anticipated. Those communities that followed Ben Meir would eat chametz when it was still Pesach according to the original calculation!

Just as shocking, Rosh Hashanah and Yom Kippur of 4683 would also be two days earlier. Ben Meir’s ruling had Rosh Hashanah beginning on Tuesday and Yom Kippur observed on Thursday. The original calculation had Rosh Hashanah on Thursday, and Yom Kippur falling on Shabbos.

That year, most communities in Eretz Yisrael and Egypt observed Pesach, Yom Kippur and Rosh Hashanah following Ben Meir’s calendar; the communities of Syria, Bavel (today’s Iraq), Europe and the rest of North Africa observed these Yomim Tovim two days later!

Thus, on Shabbos before Sukkos of 4683, Ben Meir’s followers were reading parshas Ha’azinu and enjoying their Shabbos repasts; the other communities were fasting and observing Yom Kippur!

Why did Ben Meir observe the calendar differently? Why was his opinion rejected?

Creation of the Jewish Calendar

Our current Jewish calendar was instituted in the fourth century by Hillel Hanasi (not to be confused with his ancestor, the Tanna, Hillel Hazakein. Historians call Hillel Hanasi either Hillel the Second or Hillel the Third, but I will refer to him the way the Rishonim do.) Prior to this time, the Nasi of the Sanhedrin appointed special batei din that were in charge of determining the Jewish calendar, which included two areas of responsibility:

·         Determining whether each month is 29 or 30 days.

·         Deciding whether the year should be made into a leap year by adding the month of Adar Sheini.

A beis din of three judges representing the Sanhedrin, the main beis din of klal Yisrael, would meet on the “thirtieth” day of each month to determine whether this day was Rosh Chodesh and the previous month was only 29 days, or whether to postpone Rosh Chodesh to the morrow, which would make the day on which they met the last day of a 30-day month.

The determination of which day was Rosh Chodesh was based heavily, but not exclusively, on whether witnesses appeared in the special beis din on the thirtieth day to testify that they had witnessed the new moon.

In addition, the head of the Sanhedrin appointed a panel of judges who met during the winter months to deliberate and decide whether the year should have an extra month added and become a leap year. Many factors went into their considerations, including the weather, the economy, the condition of the roads, the shmittah cycle and, of course, whether the Jewish calendar year was early or late relative to the annual solar cycle.

In Eretz Yisrael

The Gemara (Berachos 63) states unequivocally that as long as there is a beis din in Eretz Yisrael that is qualified to establish the calendar, no beis din elsewhere is authorized to do this.

This system worked well for thousands of years – from the time of Moshe Rabbeinu until about 300 years after the destruction of the Beis Hamikdash, which was during the time that the Gemara was being written. However, by this time, severe Roman persecutions took a tremendous toll on the Jewish community in Eretz Yisrael, and its yeshivos suffered terribly.

It was at this time that the head of the last main beis din functioning in Eretz Yisrael, Hillel Hanasi (usually assumed to have been a great-grandson of Rabbi Yehudah Hanasi), established the Jewish calendar as we currently observe it. In establishing this calendar, Hillel Hanasi resolved that whether a year would be a leap year or not would be determined by a cycle of 19 years that includes a set schedule of 7 leap years.

He also decided that the months of Tishrei, Shevat, Adar Rishon (when there is one), Nissan, Sivan and Av are always 30 days, whereas Teves, Adar (or Adar Sheini), Iyar, Tammuz and Elul are always only 29 days. The two months of Marcheshvan and Kislev would vary each year, depending on when the next year’s Rosh Hashanah should be. The latter was based on a calculation of how long we estimate the moon to orbit the earth and decisions made by Hillel Hanasi regarding on what days of the week the Tishrei holidays should fall.

Hillel Hanasi’s established calendar allowed that a Jew anywhere in the world could make the calculations and determine the Jewish calendar. All he needs to know is the pattern of the 19-year cycle, and the information necessary to determine how long the months of Marcheshvan and Kislev are in a given year.

One noteworthy point is that, originally, each month’s length was determined primarily by the witnessing of the new moon, whereas in the calendar created by Hillel Hanasi, the length of the months is predetermined, regardless of when the new moon appears. Only Rosh Hashanah is determined by the new moon, and, even then, there are other considerations.

History has proved the unbelievable clairvoyance of Hillel Hanasi’s calendar. To understand what he accomplished, note that, at the time of Ben Meir, almost 600 years had passed since Hillel and Jewish communities had scattered across the entire known world. There were already, at this time, Jewish communities strewn throughout Europe and North Africa, what eventually developed into the Ashkenazim and the Sefardim, and throughout the Middle East and central Asia.

Yet, wherever Jewish communities lived, they observed the same Jewish calendar, whether they lived under the rule of Christians, Moslems or Zoroastrians. It is a fascinating historical fact that, although there was no absolute central authority to determine Jewish observance, Jewish communities that were spread out everywhere observed and continue to observe the identical calendar, without any error or dispute, probably without a single exception, other than the one incident we are discussing!

The Controversy

Rav Ben Meir was, without question, a gadol  be’Yisrael who, in any other generation, might have been the gadol hador. However, Hashem placed him in the same generation as one of the greatest talmidei chachamim in history, Rav Saadia Gaon.

Rav Ben Meir held that all of the Jewish people were bound to follow his ruling regarding Klal Yisrael’s calendar, since his beis din was the most qualified one in Eretz Yisrael. He contended that the final decision on determining the calendar still rested among the highest halachic authorities in Eretz Yisrael, and that Hillel Hanasi’s calendar had not changed this.

At the time of Hillel Hanasi, the Jewish community in Bavel had surpassed that of Eretz Yisrael, both numerically and in scholarship, producing the greater talmidei chachamim. This is why the period of the Amoraim essentially ended earlier in Eretz Yisrael than in Bavel, and why the Talmud Bavli is more authoritative than the Talmud Yerushalmi. The main headquarters of Torah remained in Bavel for hundreds of years, including most of the period when the Gaonim headed the yeshivos of Sura and Pumbedisa in Bavel.

However, at the time of this controversy, both yeshivos, Sura and Pumbedisa, were weak, and Rav Aharon Ben Meir, who headed his own yeshivah in Eretz Yisrael, surpassed in learning the heads of both Babylonian yeshivos.

Enter Rav Saadia

At the time of the dispute, Rav Saadia Gaon was only 29 years old. Virtually nothing is known of his rabbei’im. We know that he was born in Egypt, probably the second largest Jewish community at the time (after Bavel). At about 23 years old, probably already the greatest Torah scholar of his era, he traveled eastward, visiting the various Jewish communities of Eretz Yisrael, Syria and eventually Bavel, becoming very familiar with the scholars there. Although very young, we see from later correspondence that he already had many disciples prior to leaving Egypt, with whom he maintained contact after he left.

Pronouncing his Verdict

About a year before he changed the accepted calendar, Ben Meir announced his plans. At the time, Rav Saadia was in Aleppo, Syria. When he heard of Ben Meir’s intentions, Rav Saadia immediately addressed a succession of letters to Ben Meir, explaining that the established calendar was correct and should not be tampered with. Simultaneously, the authorities of Bavel addressed a letter to Ben Meir, written with tremendous respect and friendship, but sharply disputing his halachic conclusions.

Apparently, Ben Meir was unimpressed by the letters from either Rav Saadia or from Bavel. It appears that he then formalized his planned calendar change with a pronouncement made on Hoshanah Rabbah, from Har Hazeisim. Because of its proximity to the Beis Hamikdash, the Torah leaders of Eretz Yisrael held an annual gathering on Har Hazeisim to perform hoshanos. At the same time, they used the occasion to discuss whatever issues faced their communities and decided on plans and policies. Apparently, Ben Meir used this opportunity to announce the decision of his beis din to adjust the calendar in the coming year.

Indeed, the communities of Eretz Yisrael, and several (if not all) of those in Egypt followed Ben Meir’s ruling and kept 29 day months for both Marcheshvan and Kislev.

After the two questionable roshei chadashim had passed, we find correspondence between Bavel and Eretz Yisrael, but now the letters are more strident. By this time, Rav Saadia had arrived in Bavel, and the next correspondence includes letters from the established leaders of Bavel to Ben Meir strongly rebuking his decision. Apparently, these letters were signed not only by the elders and scholars of the Bavel community, but also by a young Egyptian newcomer — Rav Saadia.

At the same time, the leadership of Bavel as well as Rav Saadia addressed circulars to the various Jewish communities, advising them to observe the established calendar, not that of Ben Meir.

Rav Saadia wrote his disciples in Egypt, advising them that all the leaders of Bavel had concurred to follow the old calendar and to proclaim Marcheshvan and Kislev as full months and to observe Pesach, Rosh Hashanah, Yom Kippur and Sukkos accordingly. In his own words:

Close this breach! Do not rebel against the command of Hashem. None of the people would intentionally work on Yom Tov, eat chametz on Pesach, or eat, drink or work on Yom Kippur. May it be the will of Hashem that no stumbling block be placed in your community nor anywhere else.

Rav Saadia was barely 30 years old and already he was viewed with such esteem that the established Torah leadership of Bavel requested that he join them in their correspondence on the issue!

Ben Meir’s Retort

In reaction to the initial letters from the Gaonim and from Rav Saadia, Ben Meir sent his son to Yerushalayim to announce, once again, his planned calendar change. Ben Meir also wrote, in an aggressive and disrespectful tone, that final authority in all matters of the calendar lies with the Torah leadership of Eretz Yisrael. At this point, he began to write disparagingly about his antagonists.

Pesach was approaching and communities were bewildered as to what to do. Rav Saadia wrote a second letter to his disciples in Egypt. It should be noted that, notwithstanding the personal attack leveled against him by Ben Meir, Rav Saadia dealt specifically with the issue and refrained from any remark belittling his detractor.

Why did Rav Saadia not accept Ben Meir’s assertion that the Torah leadership of Eretz Yisrael had the final say about these matters?

Rav Saadia wrote that Ben Meir’s calculations were mistaken. The calculations that we use are all based on an old mesorah from Sinai, as can be demonstrated from the Gemara (Rosh Hashanah 20). Thus, this is not a matter of opinion, but an error. Rav Saadia rallied support from the fact that, since the days of Hillel Hanasi, no one had questioned the accuracy of the accepted calendar.

Two Different Pesachs

Indeed, that Pesach, many communities followed Ben Meir, while others followed Rav Saadia and the Gaonim of Bavel. The controversy continued the next year, through the disputed Rosh Hashanah, Yom Kippur and Sukkos.

History has not bequeathed to us the final steps of this controversy, yet we know that, by the next year, the logic of Rav Saadia’s responsa swayed the tide against Ben Meir’s diatribes, and Rav Saadia became accepted as the gadol hador and its final arbiter in halacha.

Ben Meir blamed Rav Saadia for torpedoing his initiative, which probably is true. History knows nothing more of Ben Meir after this episode, and of no community that subsequently followed his approach. His opinion on any halachic matters is never quoted by later authorities.

Six years later, Rav Saadia was asked to assume the position of Gaon of Sura, the only time in history that the position was granted to an “outsider.” Indeed, we have Rav Saadia to thank that the Jewish world, everywhere, always observes Yomim Tovim on the same day.

Pruzbul

Foreword

As I discussed in a previous article, the mitzvah of shemittas kesafim comes into effect this year immediately before Rosh Hashanah. This law cancels all debts that someone is owed, meaning that the creditor cannot force collection.

Notwithstanding the mitzvah of shemittas kesafim, the Torah commands a lo sa’aseh, that states: “Be careful, lest (hishameir lecha pen) a wicked idea enter your heart, saying, ‘The seventh year, the year that releases, comes near’ and your eye disdains your brother, the pauper, and you fail to give him” (Devarim 15:9). Technically, the words “Be careful, lest” qualify as a mitzvas lo sa’aseh (Eiruvin 96a), although this mitzvah requires a positive action — to lend, notwithstanding the approaching deadline that will release the borrower from liability. This is in addition to the mitzvas aseih, the positive mitzvah, in effect at all times, to lend money whenever we are able.

Unfortunately, Jews violated both mitzvos and stopped lending money out of concern that they would not be repaid after the shemittah year. Since this violates a Torah law, Hillel felt the responsibility to create a system that allows loan collection, notwithstanding that shemittah has passed. The vehicle he created is called a pruzbul. The origin of this word is two Aramaic words that mean “benefit for the wealthy” (Gittin 36b). The Gemara notes that a pruzbul benefits both wealthy and poor – the wealthy, because it allows them to collect loans, and the poor, because they can now borrow money when needed.

To quote the two places where the Mishnah introduces pruzbul: “Hillel established the pruzbul as a tikun olam” (Gittin 34b). “A pruzbul is not released [by the shemittah year] — this is a takkanah established by Hillel the Elder, when he realized that people were refraining from lending money, and were thereby violating what the Torah commands, ‘Be careful lest…’ (Devarim 15:9), Hillel established the pruzbul (Shevi’is 10:3).”

How could he?

By what means could Hillel change the law that the Torah established? The Gemara (see Rashi) presents two options:

(1) The tanna,Rebbe, contends that shemittas kesafim applies min haTorah only when the laws of yoveil apply. Hillel held like Rebbe that shemittas kesafim is only a rabbinic rule today — since the mitzvos of yoveil do not apply until the tribes all return to their lands. Chazal have the ability to suspend rabbinically declared laws (Gittin 36a).

(2) The Torah provides batei din with the ability to declare property ownerless. This ability, called hefker beis din hefker, allowed Hillel to require borrowers to pay their debts that would otherwise have been released by the mitzvah of shemittas kesafim.

How did he?

How does a pruzbul work?

According to most rishonim, the technical way a pruzbul operates is as follows: Min haTorah, the prohibition of shemittas kesafim exists only when an individual demands payment, but not when a beis din does. This halacha is implied by the words in parshas Re’eih (Devarim 15:2): “Every creditor must release his hand from what his fellow owes him. He may not demand payment from his fellow or from his brother, because he has declared a release for Hashem.” These words teach that the prohibition of shemittas kesafim applies only to an individual, not to beis din (Sifrei). Thus, min haTorah, there is a relatively simple way to avoid violating the prohibition of shemittas kesafim. Before this law takes effect at the end of shemittah year, the creditor transfers his loans to beis din (Mishnah, Shevi’is 10:2; however, cf. Rashi, Gittin = and=, who appears to understand the topic differently), thereby authorizing the beis din to collect the debts. Now that the debts are in the hands of beis din, shemittas kesafim does not apply, and the debts can still be collected.

Min haTorah, this process requires the creditor to hand over his loan documents to the beis din. If the creditor does not have the documents, he does not give them to beis din, or the loans were not made in writing, the creditor cannot use this heter to avoid shemittas kesafim. The pruzbul allows the transfer of the debts to the beis din without physical movement of any documents, or even if there are no documents.

As the Yerushalmi expresses it, pruzbul allows transferring documents that a creditor has in Rome. (An alternative interpretation understands this passage of Yerushalmi to mean that a creditor in Israel may transfer his loans to a beis din in Rome, even though at the time of the Yerushalmi, PayPal had no business operation yet in either Israel or Italy. We will return to these two interpretations of the Yerushalmi.)

Non-written loans

Thus, pruzbul works for loans created in the presence of witnesses, even when no written contract was drawn up (Rema, Choshen Mishpat 67:19 and Sma; see Urim).

Non-pruzbul

We should note that, even without pruzbul, there are at least four ways whereby a creditor may avoid violating shemittas kesafim. Apparently, people were not utilizing these methods, and therefore Hillel created a simpler vehicle to avoid the prohibition. I will utilize an acronym BACK — whereby debts must still be paid BACK, notwithstanding the mitzvah of shemittas kesafim:

(1) Beis din

As explained above, the creditor delivers his loan documents to a beis din; collection of the debts is through beis din (Rambam, Hilchos Shevi’is 9:15; Rashi, Gittin 36a).

(2) After – payable after shemittah

Although this ruling is disputed in the Gemara, the accepted halacha is that shemittas kesafim applies only to a loan that could be collected, at least in theory, at the end of the shemittah year (Shulchan Aruch, Choshen Mishpat 67:10). Thus, a simple way for someone to lend money and avoid shemittas kesafim is to schedule the loan’s due date for after shemittah year (see Makkos 3b). Of course, by doing this, the creditor forfeits any right to collect the loan earlier. In addition, this suggestion will not help if the loan is overdue and the borrower has not been paying, whether his delay is because he is without funds or because he chooses to be a deadbeat.

(3) Condition

There is a technical way that, when the loan is originated, it can be made conditional to be payable even after shemittah ends. Because of space considerations, I am unable to explain this in the current article.

(4) Kollateralized

You are correct, it should be collateralized, but I think that you’ll remember BACK better than BACC.

At the time of the loan, the creditor can insist on receiving collateral (a mashkon) [Gittin 37a] that is worth more than the loan. Some authorities contend that shemittas kesafim does not apply even if the mashkon is worth less than the loan (Shmuel in Yerushalmi, Shevi’is; Rashi, Bava Metzia 49a; Rash, Shevi’is 10:2, in his explanation of Shavuos 44b). These authorities hold that the existence of a mashkon automatically exempts a loan from the rules of shemittas kesafim. The reason why a mashkon exempts the loan from the mitzvah of shemittas kesafim is because the loan is considered already collected.

The Shulchan Aruch cites both of the opinions I quoted, but rules, according to the first opinion, that the mashkon preempts shemittas kesafim only when it is at least as valuable as the amount loaned (Choshen Mishpat 67:12).

Paying BACK (or BACC)

Now that we know about these four options, we realize that the creditor can easily arrange matters such that shemittas kesafim is avoided. Nevertheless, Hillel realized that people were not utilizing these methods to guarantee return of their funds, but instead, they were refraining from lending money — thus violating both an aseih and a lo sa’aseh. This necessitated the new takkanah of pruzbul.

What type of beis din?

As explained above, the legal vehicle whereby a pruzbul works is that the loan is transferred to a beis din, which avoids the prohibition of shemittas kesafim. The Mishnah (Shevi’is 10:4) states: “This declaration is the essence of a pruzbul: ‘I transfer to you, dayanim xxx of community y, any loan that I am owed, such that I can collect it whenever I want to.’”

We may have noticed that beis din is involved in the din of pruzbul in two ways:

(1) The Torah exempts loans owed to a beis din from the mitzvah of shemittas kesafim.

(2) Transferring the ownership of the debt to beis din may require utilizing the principle of hefker beis din hefker, which is a legal concept that requires a beis din to implement.

This brings up a new question (Gittin 36b). The Gemara states that a pruzbul can be created only by a high-level, established beis din, such as that of the renowned amora’im, Rav, Shmuel, Rav Ami or Rav Asi. Why can only these gedolei Yisroel create a pruzbul? Because the ability to declare someone’s property ownerless, hefker beis din hefker, is not granted to just any beis din (Sma 67:36).

Technically speaking, three learned, adult, male Jews can form a beis din. For laws such as hataras nedarim, releasing someone from vows, we follow this practice. Is the same type of beis din valid for creating a pruzbul? The Gemara quoted above disagrees — not every beis din may create a pruzbul, only one in the league of Rav, Shmuel, Rav Ami and Rav Asi. This implies that even a beis din experienced in dinei Torah may not issue a pruzbul. Several rishonim, including the Rambam and Rabbeinu Tam, conclude that only an exceptionally regarded beis din may issue a pruzbul. This is also the conclusion of the Shulchan Aruch: “A pruzbul may be written only in a prominent beis din, meaning, three experts who know halachic civil law, the laws of pruzbul and shemittah and were appointed judges by the community of their city” (Choshen Mishpat 67:18).

Nevertheless, the accepted practice among Ashkenazim follows the Rosh (Gittin 4:13), who understands that the Gemara later reevaluates this decision, and that is the conclusion of the Rema (Choshen Mishpat 67:18). Common contemporary Ashkenazic practice is that the three “dayanim” who perform hataras nedarim on erev Rosh Hashanah sign someone’s pruzbul.

From a distance?

May the creditor transfer the loans to the beis din without appearing before them, by declaring in front of witnesses, “I am transferring all loans that are owed me to beis din, consisting of dayan D1, dayan D2 and dayan D3, in city C?” If you follow the Ashkenazic practice that a pruzbul may be issued by any beis din, this question is not that serious, unless you intend to spend all of Elul outside any Jewish community. However, for those who follow the Shulchan Aruch’s ruling, this is a very practical concern, since a pruzbul may be issued only by a major beis din. Must the creditor appear in front of the beis din for them to issue a pruzbul, or is it sufficient that he declare in front of witnesses that he is transferring all debts he is owed to a major beis din?

The Mordechai (Gittin #380) cites this question as a dispute between himself and Rabbeinu Yechiel, in which Rabbeinu Yechiel required the declaration to be in the presence of the beis din, whereas the Mordechai ruled that it is adequate for the creditor to declare to the witnesses that he transfers his loans to the beis din. The Shulchan Aruch mentions both opinions (Choshen Mishpat 67:19 and 21), concluding (Choshen Mishpat 67:19) that he must make this declaration directly to the beis din, an approach accepted by both the Sma and the Tumim (67:21). The Rema (Choshen Mishpat 67:20) concludes that it works even if he is not in front of beis din.

Remember Rome!

Or, more accurately, remember the passage of the Yerushalmi (Shevi’is 10:2), regarding Rome! That Yerushalmi states that a pruzbul can transfer what is nesunin beRomi, “located in Rome.” If nesunin beRomi refers to the location of the dayanim, the creditor may transfer loans to a beis din hundreds of miles from where he is, as concluded by the Mordechai and the Rema. On the other hand, if the Yerushalmi is referring to loan documents in Rome, all we can prove is that pruzbul permits the transfer of loans, without the creditor handing his documents physically to the beis din.

One pruzbul covers all

A creditor need make only one pruzbul, regardless as to how many outstanding debts and debtors he has. This is because the pruzbul transfers all the loans he is owed to the beis din.

Oral pruzbul

Must a pruzbul be written down, or can it be an oral declaration, without a written form? The Shulchan Aruch implies that, in normal circumstances, it should be a written document, whereas the Rema rules that it can be performed orally (Choshen Mishpat 67:20). Accepted custom is to make a pruzbul into a simple, written form, although the exact text may vary, often dependent on some of the halachic issues we have discussed in this article.

Postdated pruzbul

A pruzbul transfers to the beis din any outstanding debts that exist at the time that it is made. It cannot transfer a debt that does not yet exist. Therefore, if a creditor made a pruzbul on the 20th of Elul, and then loaned someone money on the 23rd, shemittas kesafim will take effect on this loan. As a result, a postdated pruzbul, such as one transacted on the 20th of Elul, but dated the 29th, is invalid, since it might be used as proof that a loan made between these two dates was transferred to beis din when it wasn’t (Mishnah, Shevi’is 10:5).

On the other hand, a predated pruzbul is perfectly valid. Dating it earlier than necessary only causes a potential loss to the creditor, since it cannot prove that he transferred to beis din a loan that took place after the date written on the pruzbul. Since the creditor would be harming only himself with such a pruzbul, a predated pruzbul is valid (Shulchan Aruch, Choshen Mishpat 67:32 and Sma there #54).

Borrowing tenants

The Mishnah states that a pruzbul is written only when someone owns land (Shevi’is 10:6). Who must own land? The borrower must be someone who owns or has a right to some land.

However, this does not mean that a creditor cannot create a pruzbul to collect from someone who rents an apartment. A tenant has a right to his apartment, and this is adequate “land ownership” for a pruzbul to be effective. Even if the only land right a person has is that he has borrowed an area upon which his stove rests, he has enough “land ownership” to be included in a pruzbul.

Potential lenders solicited by someone homeless, who are concerned that a pruzbul will not guarantee their loan – be aware that Hillel took you into consideration, although the explanation as to how this pruzbul needs to be made is beyond the scope of this article. If you have loaned money to someone who has no rights to any landed property, ask your rav or posek how to make your pruzbul credit-worthy.

Why land?

Why does a pruzbul work only if the debtor has land?

According to Rashi (Gittin 37a s.v. ela), this is because most people who borrow money have land to serve as understood collateral. Any serious loan will require some means of guaranteeing collection, and chattel can easily “disappear.” Therefore, a loan made for a borrower who has no real estate at all is so uncommon that Hillel felt no need to make a pruzbul to cover this situation.

The Rash (Shevi’is 10:6) offers a different suggestion why land ownership is an essential component for a pruzbul: A loan turned over to beis din is exempt from shemittas kesafim since it is as if beis din has already collected the debt — there is nothing preventing them from taking the land for collection.

Lost my pruzbul

The Mishnah (Kesubos 89a) implies that a creditor who comes to beis din after shemittah year and claims that he made a pruzbul must bring evidence that he did so. However, the Gemara (Gittin 37b) notes that the amora’im,Rav and Rav Nachman, followed the opinion of a different tanna, in a beraisa, who disagreed. Most rishonim accept their ruling that someone who claims to have made a pruzbul may collect his debt after shemittah (see also Shulchan Aruch, Choshen Mishpat 67:33). The reason is that we assume that a frum Jew would not violate the Torah when he can accomplish something in a permitted way (Sma 67:55). According to all authorities, the lender may not claim to have made a pruzbul if he did not, and it is theft to do so. It also violates the mitzvah of shemittas kesafim, releasing his loans at the end of shemittah year.

Conclusion

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 an old Yiddish expression, Ven kumt tzu gelt, es iz an andara velt, “When dealing with money, people approach matters in a completely different way,” and, if I might add my own commentary, often not in a very rational way. People find it difficult to part with their money, even temporarily. This is precisely why one receives such immense reward for lending. As Pirkei Avos teaches us, lefum tza’ara agra, “we are rewarded in direct relationship to the level of discomfort we feel when observing the mitzvah.”

Otzar Beis Din or Heter Otzar Beis Din?

An Otzar Beis Din is literally “a storehouse operated by Beis Din.” Why would Beis Din operate a warehouse? Before explaining more fully the true purpose of an Otzar Beis Din, which is a halachically approved method of distributing shemittah produce, we must first review the halachos of shemittah. These rules fall under two general categories:

(1)   Laws of the Land

The Torah teaches that every seventh year is shemittah, and we are prohibited from working the land of Eretz Yisrael. One may not plow, plant, prune, or harvest one’s grapevines as an owner, or perform most other agricultural work. Furthermore, one may not allow one’s land to be worked during shemittah, even by a non-Jew.[1] One may perform activities whose purpose is to prevent loss, such as watering plants and trees so that they do not die.[2]

The landowner may not treat what grows during shemittah as his own; rather, he must allow others to enter his field or orchard and help themselves. They may take only as much as their family will eat, and the landowner himself may also take this amount.[3] One may not sell shemittah produce in a business manner.[4]

(2) Laws of the Fruit

Shemittah produce is imbued with special sanctity called kedushas shevi’is. The Torah provides specific rules that govern how one treats such produce. These laws fall under the following categories:

a.       Commerce with Shemittah Produce

One must be careful not to sell shemittah produce in a way that implies that one is its true owner. For this reason, shemittah produce may not be sold by weight or measure[5] nor sold in a regular store.[6] Instead it should be distributed in a way that implies that this is a division of produce rather than a sale.

One may not export shemittah produce to chutz la’aretz.[7] The later poskim even dispute whether one may ship esrogim to chutz la’aretz for people to fulfill the mitzvah of Arba Minim.[8]b.      Sefichin

The Torah permits eating produce that grew by itself, without the farmer working the field during shemittah. However, Chazal felt it necessary to prohibit grains and most vegetables that happened to grow on their own during shemittah year or were planted in violation of the laws of shemittah. This was because even in the days of Chazal it was unfortunately common to find Jews who deceitfully ignored shemittah laws. One practice of enterprising, unscrupulous farmers was to plant grain or vegetables and market them as produce that grew on its own.

To discourage this illegal business, Chazal forbade even grains and vegetables that grew on their own, a prohibition referred to as sefichin (literally, “plants that sprouted”). Several exceptions were made, including produce grown in the field of a non-Jew, who has no obligation to observe shemittah.[9]

c.       Hefker – Ownerless

Since all shemittah produce is halachically ownerless, every consumer has the halachic right to “help oneself” to whatever his family might eat. The poskim dispute whether one has the right to do this even if the owner is not halachically compliant and does not give others permission to enter his field.

The Otzar Beis Din

With this introduction, we can now discuss an Otzar Beis Din.

The owner of a vineyard is not required to produce wine for me, only to allow me to harvest the grapes for myself. If I do not have the equipment or expertise to press and process grapes into wine or olives into oil, I will be unable to utilize my rights to these fruits. Similarly, although I have a right to travel from Yerushalayim to pick citrus, mangos and bananas grown along the coast or in the northern part of the country, it is not that convenient for me to go. How then can I possibly utilize the benefit of shemittah?

Enter the Otzar Beis Din. The Beis Din represents the consumer and hires people to gather the fruit, crush the grapes and olives into juice and oil, ferment the juice into wine, package the product, and then distribute it to the consumer. The Otzar Beis Din acts as the consumer’s agent and hires pickers, truckers, and other laborers; rents wine production equipment; purchases the bottles; produces shemittah fruits, wines and oils; and delivers them to a convenient distribution center near my house.

Obviously, the Otzar Beis Din cannot expect the pickers, truckers, and other laborers to work as unpaid volunteers, nor can they use the production equipment without paying rent. Similarly, the managers who coordinate this project are also entitled to a wage for their efforts. The Otzar Beis Din divides these costs among the consumers. However, no charge is made whatsoever for the fruit, since they are hefker; the charges are only for the labor and other costs involved. Thus, Otzar Beis Din products should cost less than regular retail prices for the same items.

Similarly, the farmer is required to allow anyone to enter his field and help himself to his crops. However, since it is inconvenient for a resident of Yerushalayim to travel to an orchard in the northern part of Israel or along its coast to pick oranges and bananas, the Otzar Beis Din picks and transports the fruit to the consumer. All the other halachos of shemittah apply to this produce.

The Development of a ‘Modern’ Otzar Beis Din

The rabbonim and Beis Din of Yerushalayim organized the first “modern” Otzar Beis Din over 110 years ago. In 5670 (1910), Rav Tzvi Hirsch Cohen, a talmid chacham from Rechovot who owned vineyards and orchards, came to the rabbonim of Yerushalayim requesting that they function as his Beis Din to distribute the wine and fruit from his orchards for the coming shemittah. The written contract, signed by Rav Chayim Berlin, Rav Yosef Chayim Sonnenfeld, Rav Tzvi Pesach Frank, Rav Yisrael Yaakov Yaavetz and Rav Moshe Nachum Wallenstein, enabled Yerushalayim residents to receive wine and fruit from Rav Cohen’s orchards.

Someone had to arrange to harvest the fruit, process the grapes into wine, and transport the products to Yerushalayim. Since Rav Cohen was the most qualified person to take care of these arrangements, the Beis Din appointed him to be their representative on behalf of the general public. As an agent, he was entitled to a wage for his work, as were the other employees who harvested, crushed, packaged, and transported the crop, but no one was entitled to any profits on the produce.

The Beis Din established several rules to maintain that the laws of shemittah were scrupulously kept in this arrangement, and to guarantee that Rav Cohen was paid as a manager and not as an owner of the product. For one thing, they predetermined the price that the consumer would pay for the wine, guaranteeing that it was significantly lower than its usual market price.[10]

Because of the laws governing the harvest and use of shemittah products, the Beis Din also insisted on the following rules:

  • The wine and fruits could be distributed only to people who would observe the shemittah sanctity of the products.[11]
  • The vineyards and orchards had to be available for any shemittah-observant person to enter and harvest for his own needs.[12]
  • The products were not distributed through stores, but were divided as a communal division of bulk product.
  • The products were not weighed or measured. Each individual who participated in dividing the shemittah produce paid Rav Cohen as Beis Din’s agent, for which the consumer was entitled to ‘shares’ of wine and produce, which were delivered in bulk containers without an exact weight.
  • The actual harvest of the product was performed by non-Jews and in an atypical way.[13]

In his analysis of the procedure of an Otzar Beis Din, the Chazon Ish follows a more lenient approach than that of the above-mentioned Beis Din of Yerushalayim.[14] He ruled that representatives of an Otzar Beis Din may harvest in the normal way and use Jewish labor. Thus, the Otzar Beis Din of a modern farm that follows the Chazon Ish’s ruling allows Jewish staff to use tractors and other equipment to harvest and process the shemittah produce.[15]

In addition, the Chazon Ish permitted weighing and measuring produce sold through Otzar Beis Din. In his opinion, the prohibition against weighing and measuring shemittah produce is only because this indicates that I am the owner of the produce. However, weighing and measuring Otzar Beis Din produce is to determine a fair division of costs involved in supplying the produce, and not to demonstrate ownership.

In today’s Otzar Beis Din, the grower plants everything before shemittah and is given extremely detailed instructions regarding what he may and may not do during shemittah. The grower must allow any shemittah-observant person to enter the field or orchard and help himself to the produce.[16]

The Heter Otzar Beis Din Controversy

The modern term, heter Otzar Beis Din, is used pejoratively. The purpose of an Otzar Beis Din is to service the consumer, not the producer, as explained above.

Unfortunately, unscrupulous individuals sometimes manipulate the rubric of Otzar Beis Din to allow a “business as usual” attitude and violate both the spirit and halacha of shemittah. I know of farms that call themselves Otzar Beis Din but, in reality, bar free entry of their fields during shemittah, or the field owner treats the produce as completely his own and charges accordingly.

Since this contradicts the meaning of Otzar Beis Din, these cases are called heter Otzar Beis Din, meaning permitting something based on an abuse of the concept of Otzar Beis Din. Because of these concerns, some hechsheirim discourage the use of Otzar Beis Din. Thus, in practice, Otzar Beis Din becomes a michshol when it degenerates into a heter Otzar Beis Din. Indeed, as with every “treasure,” one must make every effort to ensure its principle stays intact. How much more so with the principles of the Otzar Beis Din!

Conclusion

Just as observing the seventh day, Shabbos, demonstrates our beliefs in the Creator, so too, observing every seventh year as shemittah demonstrates this faith. For someone living in Eretz Yisrael, observing shemittah properly involves assuming much halachic responsibility and education. For the modern farmer, observing shemittah can indeed be true mesiras nefesh, since among the many other concerns that he has, he also risks losing customers who have been purchasing his products for years. For example, a farmer may be selling his crop somewhere in Europe. If he informs his buyer that he cannot produce during shemittah, he risks losing the customer in the future.

Of course, a Jew realizes that Hashem provides parnasah and that observing a mitzvah will never hurt anyone. An observant farmer obeys the Torah dictates knowing that Hashem attends to all his needs. Indeed, recent shemittos have each had numerous miracles rewarding observant farmers in this world for their halachic diligence. Who can possibly imagine what reward awaits them in Olam Haba!

[1] Avodah Zarah 15b.

[2] Moed Katan 3b; Rambam, Hilchos Shemittah 1:10; Cf. Chazon Ish, Shevi’is 16:4, 21:14, who is more lenient.

[3] Rambam, Hilchos Shemittah 4:1.

[4] Ibid., 6:1.

[5] Mishnah Shevi’is 8:3.

[6] Yerushalmi Shevi’is 7:1.

[7] Mishnah Shevi’is 6:5.

[8] Beis Ridbaz 5:18; Shu’t Igros Moshe, Orach Chayim 1:186.

[9] Rambam, Hilchos Shemittah 4:29.

[10] Sefer Minchas Yerushalayim, page 161.

[11] Ibid., 163; see also Tosefta Shevi’is 6:11.

[12] Sefer Minchas Yerushalayim, page 181.

[13] Katif Shevi’is, page 125.

[14] Shevi’is 11:7 s.v. bemashekasavti

[15] Sefer Hashemittah, 21.

[16] Mishpetei Aretz, page 103.

The Fateful U-Turn

ACT I – THE FATEFUL U-TURN

Location: The highway

Photo by Chris Chidsey from FreeImages

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 was 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 borrowed 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 counters.

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 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 explained below.

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. Put in other terms, a lender who receives no benefits has a right to assume that his item, or its value, is returned to him.

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!”

Furthermore, you are a sho’eil because giving me a ride to the airport was not an exchange for using the car; it was a chesed that you did for me.

However, Reuven has done his homework. He knows that there is another distinction between a renter and a borrower with regard to assumption of responsibility.

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 was. 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 never assumed any responsibility. The first claim 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 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).On the other hand, a renter’s liability is limited to how much responsibility he assumed.

WHY IS A BORROWER DIFFERENT FROM A RENTER?

A sho’eil 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, may 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 as the borrower of the car for 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 penalty?

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 penalty 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 held 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 acting 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, in order to complete his Shabbos preparations. Such 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. shenayim) 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 pasken?

The Shulchan Aruch (Choshen Mishpat 378:7) rules like Rashi,whereas the Rema (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 caused 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 continue his driving career with no further incidents or accidents.

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