Halachic History of Copyright

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

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

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

WHAT RIGHTS DOES THE PUBLISHER HAVE?

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

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

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

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

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

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

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

DOES HALACHA RECOGNIZE INTELLECTUAL PROPERTY AS OWNERSHIP?

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

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

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

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

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

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

Thus, whether halacha recognizes intellectual property ownership is disputed.

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

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

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

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

How Does a Heter Iska Work?

clip_image002

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.

“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 noted 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 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 refuses to 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 its payroll, and had no one available from whom to borrow money. The director asked a backer of the institution 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 Gemara 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 tragic,” 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 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 HaDeshen #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 hundreds of years old. The earliest heter iska of which I am aware is suggested by the Terumas HaDeshen (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 then lending it out to the 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.

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 in the hope that Sweat’s idea will 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 exactly how much money Bucks is due. The heter iska 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 Mr. 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 rather 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 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 people often, unfortunately, 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.”

“Could you explain why this is 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 now a $50,000 loan that Mr. Sweat must eventually repay, and the other half is a $50,000 outlay that Mr. Bucks has now 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 that Bucks did not pay for. Why is this investment of services not considered payment for Mr. Bucks’ loan, and therefore a ribbis problem?

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

“The first method 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 be actually 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 would be prohibited as ribbis.”

“Precisely,” I replied. “However, there is another way to structure the heter iska so that this is not a problem. This is by having 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, in the original deal, let us assume that our silent and managing partners will divide the profits, but in case of loss, our manager is responsible to pay only $30,000. This means that Sweat borrowed only $30,000 and therefore owns only 30% of the business, which should entitle him to only 30% of the profits. 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.

“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 bank’s profits for his services in managing the investment.”

“Can you explain to me how the Terumas HaDeshen’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 this is the mitzvah of 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 to demonstrate that the capital we receive from Hashem is so that we donate tzedakah and provide loans, and thereby fulfill our share in 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.”

Do I One or Two? — What Determines Whether One Observes a Second Day of Yom Tov?

Question #1: Zev is studying in Yeshiva in Eretz Yisroel and has decided that he wants to settle there, although his parents, who support him, live in Flatbush. How many days of Yom Tov should he observe?

Question #2: Avi and Rutie, who are native Israelis, have accepted teaching positions in chutz la’aretz for two years, but certainly intend to return to Eretz Yisroel afterwards. Must they observe both days of Yom Tov while they are in chutz la’aretz?

Question #3: Meira, studying in seminary in Israel, is baffled. “Some of my friends who have decided to stay in Eretz Yisroel were told to keep two days Yom Tov, others were told to keep one, and still others were told not to do melacha on the second day, but otherwise to treat is as a weekday. I have been unable to figure out any pattern to the answers they receive. Can you possibly clarify this for me?”

Indeed, Meira’s confusion is not unusual since poskim differ greatly concerning what guidelines determine whether one observes one day of Yom Tov or two. Before analyzing this dispute, we need some background information on how the calendar was established in the era of the Sanhedrin:

THE HALACHIC MONTH

All months in the Jewish calendar are either 29 or 30 days long, reflecting the amount of time that it takes for the moon to revolve around the earth, which is somewhat more than 29½ days. Therefore, Rosh Chodesh, the first day of the new month, is always either the 30th or the 31st day following the previous Rosh Chodesh.

What determines whether a month is 29 days or 30?

The Torah commands the main Beis Din of the Jewish people, or a Beis Din specially appointed by them, to declare Rosh Chodesh upon accepting the testimony of witnesses who observed the new moon (Rambam, Hilchos Kiddush HaChodesh 1:1, 7; 5:1). The purpose of having eyewitnesses was not to notify the Beis Din of its occurrence; the Beis Din, which had extensive knowledge of astronomy, already knew exactly when and where the new moon would appear and what size and shape it would be (Rambam, Hilchos Kiddush HaChodesh 2:4; Ritva on the Mishnah Rosh Hashanah 18a). Rather, the Torah required the Beis Din to wait for witnesses in order to declare the 30th day as Rosh Chodesh. If no witnesses to the new moon arrived on the 30th day, then the 31st day becomes Rosh Chodesh, regardless of the astronomic calculations (Mishnah Rosh Hashanah 24a).

DETERMINING YOM TOV

The date of all Yomim Tovim is determined by Rosh Chodesh, or, more specifically, by either Rosh Chodesh Tishrei or Rosh Chodesh Nissan (Mishnah Rosh Hashanah 21b). (Shavuos, which occurs on the fiftieth day after Pesach, is therefore also dependent on Rosh Chodesh Nisan [Yerushalmi, Rosh Hashanah 1:4].) Therefore in earlier days, even someone fully versed with all the astronomical information would be unable to predict which day was actually Rosh Chodesh, since Rosh Chodesh was not based exclusively on calculation, but on observation and the decision of the Beis Din (Rambam, Hilchos Kiddush HaChodesh 5:1-2). Since the calendar printers could not go to press until the Beis Din had declared Rosh Chodesh, calendar manufacture in those times would have been a difficult business in which to turn a profit. Perhaps this is why people mailed out so few fundraising calendars in the days of Chazal!

KEEP INFORMED

A major concern of Chazal was how to alert the Jewish communities, both inside and outside Eretz Yisroel, when to observe Rosh Chodesh and Yom Tov. How indeed did the Beis Din do this?

THE MOUNTAINTOP ALERT

No, this is not the name of a rural West Virginia newspaper. Rather, this refers to the system Beis Din used to disseminate the day they had declared Rosh Chodesh. A representative of Beis Din would climb a mountain peak on the night after the declaration of Rosh Chodesh and wave a long torch in a prearranged pattern. When a second agent posted on a far off summit saw the light of the burning torch, he in turn waved a long torch from his peak. This heralded the news to a crest on his horizon, where a third agent began waving his torch. Although this ancient system was less effective than telephone or e-mail, it worked so efficiently that Jewish communities as distant as Bavel knew that very night that the 30th day had been declared Rosh Chodesh, and were able to observe the Yomim Tovim on the correct day (Mishnah Rosh Hashanah 22b; Ritva on the Mishnah 18a).

A TORCH-LESS NIGHT

The torch system was used only if Rosh Chodesh was declared on day 30. If no witnesses arrived in Beis Din on the 30th, making Rosh Chodesh on the 31st day, no mountaintop torches were ignited. Thus, the distant communities knew: Torches the night after the 30th meant that the previous day had been Rosh Chodesh; no torch that night meant that the next day was Rosh Chodesh. To paraphrase Paul Revere: “One if by day, none if tomorrow.”

This signalling system functioned excellently until the Cusim, an anti-Semitic people who settled in Eretz Yisroel, disrupted it by deliberately kindling torches on the night after the 30th day even when Beis Din had not declared the previous day Rosh Chodesh. The Cusim’s goal was to cause Jews to observe Yom Tov a day early and thereby desecrate the true Yom Tov (Mishnah Rosh Hashanah 22b). Now the Beis Din needed to resort to a different approach, appointing human runners to notify people of the proper day of Yom Tov. Obviously, these runners could not cover vast distances as quickly as the previous torch system, and it took considerably longer to notify people of the day of Rosh Chodesh – what previously took hours, now took weeks.

Although the human express successfully informed Jewish communities as distant as Syria of the correct dates of the upcoming Yomim Tovim, the runners did not always reach the more distant Babylonian communities in time for Yom Tov (Mishnah Rosh Hashanah 18a). These communities were now unsure whether the Roshei Chadashim of Nissan and Tishrei had been on the 30th day or the 31st, and were therefore uncertain which day was Yom Tov. Out of doubt, they observed Yom Tov on both days — this was the origin of observing two days of Yom Tov in the Diaspora, Yom Tov Sheini shel Galuyos (Rambam, Hilchos Kiddush HaChodesh 3:11).

(By the way, after the destruction of the Beis HaMikdash, the main Beis Din was not located in Yerushalayim, but wherever the Nasi of the Jewish people resided. This included several other communities at various times of Jewish history, including Teverya, Yavneh, and Shafraam [Rosh Hashanah 31b].)

WHICH COMMUNITIES KEPT TWO DAYS?

Whether a town observed one or two days of Yom Tov depended on whether the runners could arrive there in time. Since the runners did not travel on Shabbos or Yom Tov, any place further than ten travel days from the main Beis Din was forced to observe two days of Sukkos. On the other hand, the runners announcing Rosh Chodesh Nissan had two extra travel days before the onset of Pesach.

OBSERVING TWO DAYS OF SUKKOS AND ONE OF PESACH?

Theoretically, one could have numerous different communal practices depending on the community’s distance from the main Beis Din. For example, a town located more than ten days journey from the Beis Din but less than twelve, would be informed of the correct day of Rosh Chodesh before Pesach, but not before Sukkos. Theoretically, this town would observe two days of Sukkos and one day of Pesach. Even more commonly, many communities would observe two days at the beginning of Yom Tov, but only one at the end, after being notified of the correct date of Rosh Chodesh.

However, since Chazal did not want a variety of different practices, they instituted that any place that could not reliably expect the messengers before Sukkos should observe two days Yom Tov on all Yomim Tovim even for those when they certainly knew which was the correct day of Yom Tov (Rosh Hashanah 21a). Thus, although everyone knew which day to observe Shavuos, as it always falls fifty days after Pesach, every community that kept two days of Sukkos was required to observe two days of Shavuos. (Because of the danger involved in people fasting for two consecutive days, Chazal ruled that people needed to observe only one day of Yom Kippur and could assume that Elul was only 29 days long [see Rosh Hashanah 21a].)

INCREASED PERSECUTION

During the later times of the Gemara, Roman persecution made it impossible to continue declaring Rosh Chodesh based on testimony, and Hillel II instituted a calendar based purely on calculation without observation (Rambam, Hilchos Kiddush HaChodesh 5:2-3). Now a knowledgeable Diaspora Jew could make the same calculation as the Jews in Israel and the original rationale for observing two days of Yom Tov no longer existed. Nevertheless, Chazal required the Diaspora communities to continue observing two days of Yom Tov.

WHY KEEP TWO DAYS?

Why did Chazal require these communities to observe two days of Yom Tov if the original reason for this practice had ceased to exist?

Chazal were concerned that at some time in the future, persecution might render it impossible for Jews to be aware which day was Yom Tov (Beitzah 4b). Observing two days of Yom Tov reduces the possibility that they might violate Yom Tov or eat chometz on Pesach as a result of an error in calculation. Although this concern also existed in Eretz Yisroel, Chazal did not require the communities there to observe two days Yom Tov since the practice was never instituted there. However, since the Diaspora communities were already observing two days of Yom Tov, Chazal continued this practice, albeit for a new reason. As a result, the Jewish communities of Israel observe one day of Yom Tov and those of the Diaspora observe two.

WHO KEEPS TWO DAYS OF YOM TOV?

Although whether a community observed one day of Yom Tov or two should depend on whether it was within ten travel days of the main Beis Din, certain villages near the Beis Din were off the messengers’ route and consequently did not find out in time. As a result, these communities observed two days of Yom Tov even though they were within Eretz Yisroel (Rambam, Hilchos Kiddush HaChodesh 5:9). Some Rishonim contend that even today many communities in Eretz Yisroel must observe two days of Yom Tov (Rambam, Hilchos Kiddush HaChodesh 5:9). The accepted practice is that all Eretz Yisroel observes only one day of Yom Tov since that was the practice of most places in Eretz Yisroel when the calendar was dependent on observation (Ritva, Rosh Hashanah 18a; Minchas Shelomoh 2:44).

Thus far, we have discussed the rules governing whether a community observes two days of Yom Tov or not. However, all the questions mentioned at the beginning of this article deal with how many days of Yom Tov an individual must observe.

A FISH OUT OF WATER — VISITING CHUTZ LA’ARETZ

What is the halacha if an Eretz Yisroel resident finds himself in chutz la’aretz for Yom Tov? Must he observe two days of Yom Tov because of local custom, or may he follow his hometown practice of observing one day?

The Shulchan Aruch (496:3) rules as follows: “People who live in Eretz Yisroel who are in chutz la’aretz are forbidden to perform melacha (forbidden work) on the second day of Yom Tov even if they intend to return to Eretz Yisroel.”

No one should know that they are not observing Yom Tov, and for this reason, they must wear Yom Tov clothes (Shu”t Radbaz #1145; Magen Avraham). According to most opinions, they may not perform work even in private (Shu”t Radbaz #1145; Magen Avraham; Chayei Odom 103:3; Gra”z; Mishnah Berurah; Aruch HaShulchan, all based on Tosafos to Pesachim 52a s.v. BiYishuv. However, Shu”t Mabit 3:149 and Taz [496:2] are lenient.)

However, since it is technically not Yom Tov for them, they pray according to the practice of Eretz Yisroel on this day, even donning tefillin, although they must do so in private (Shu”t Radbaz #1145; Shu”t Avkas Rocheil #26).

A CHUTZNIK IN THE KING’S PALACE — VISITING ERETZ YISROEL

Does a chutz la’aretz resident visiting Eretz Yisroel observe one day Yom Tov or two?

According to most opinions, a chutz la’aretz resident visiting Eretz Yisroel must continue to observe two days Yom Tov until he or she assumes residence in Eretz Yisroel (Shu”t Avkas Rocheil #26; Shaarei Teshuvah 496:2; She’eilas Yaavetz #168; Birkei Yosef 496:7).

One prominent posek contends that a chutz la’aretz resident visiting Eretz Yisroel does not observe the second day of Yom Tov. His reasoning is that observing two days of Yom Tov is a carryover from when people in chutz la’aretz were unable to determine which day was definitely Yom Tov. In that era, if someone from chutz la’aretz visited Eretz Yisroel, why would he observe two days of Yom Tov if he knew that the second day was not Yom Tov (Shu”t Chacham Tzvi #167)? (The Chacham Zvi himself forbids observing the second day of Yom Tov in Eretz Yisroel because of concerns about bal tosif, adding to the mitzvah, a topic we will leave for a different time.)

Although the Chacham Tzvi’s argument seems logical, almost all other halachic authorities reject his conclusion. It should be noted that even the Chacham Zvi’s son, Rav Yaakov Emden followed the majority opinion unlike his father (She’eilas Yaavetz #168. However, note that the Gra”z 496:11 cites the Chacham Tzvi’s approach as the primary opinion.)

May people from chutz la’aretz organize a second-day Yom Tov minyan? This is an old dispute that continues to this day. Although many poskim object to the practice, contending that one should not act publicly differently from local practice, the custom to have second-day Yom Tov minyanim in Eretz Yisroel is mentioned favorably by Rav Yosef Karo, the author of the Shulchan Aruch, as a well-established practice (Shu”t Avkas Rocheil #26). In most communities today it is the norm for chutz la’aretz visitors to conduct second day Yom Tov minyanim, and even to advertise them.

A TEMPORARY RESIDENT

At the beginning of this article I mentioned several common situations where it is not obvious whether one should comport himself as a resident of Eretz Yisroel or of chutz la’aretz. What determines whether one should observe two days of Yom Tov? Whether one observes two days of Yom Tov depends on whether one is considered a Diaspora resident or not, concerning which we find a wide range of halachic opinion. Here is a sampling of the opinions:

ONE YEAR

Some contend that one who plans to stay for a year should consider himself a resident of his new domicile even if he intends to return eventually (Aruch HaShulchan 496:5; Shu”t Avnei Nezer, OC 424:27). These authorities compare this law to the following Mishnah (Bava Basra 7b):

“You can force someone to contribute to the construction of the walls and reinforcements of a city… How long must he be in the city to consider him a resident? Twelve months. And if he purchased a residence he is considered a resident immediately.” The Gemara (Bava Basra 8a) compares this law to similar responsibilities for tzedakah and some other mitzvos.

According to this approach, Avi and Rutie, who will be teaching in chutz la’aretz for two years, certainly follow all the practices of chutz la’aretz for Yom Tov (see also Shu”t Yechaveh Daas 3:35).

LONG TERM INTENT

On the other hand, a different early authority ruled that time is not the factor in deciding whether one is considered a resident of Eretz Yisroel or of chutz la’aretz, but one’s long term intent. If one’s plans are to return to Eretz Yisroel, one should daven according to Eretz Yisroel practice, even if one is in chutz la’aretz for several years. Someone in Eretz Yisroel who intends to return to chutz la’aretz should observe two days Yom Tov. However, this halachic authority included one main exception to his rule: If one travels with one’s family and establishes a livelihood in his new locale, he should consider himself a resident of where he is now, since people tend to remain in a place where their livelihood is secure (Pri Chodosh, Orach Chayim 468 s.v. vira’isi).

However, many authorities judge contemporary circumstances differently from those of earlier generations. Since today people travel and even relocate relatively easily, the fact that one’s family and livelihood is currently in one location does not automatically make one a permanent resident of that place for the purposes of determining whether one observes one day of Yom Tov or two. Because of this consideration, Rav Moshe Feinstein ruled that someone studying in kollel in Eretz Yisroel should keep two days Yom Tov unless both he and his wife have decided to remain in Eretz Yisroel (Shu”t Igros Moshe, OC 3:74). Rav Moshe has several other published teshuvos on the subject, each person’s case being someone different, and in each case Rav Moshe determines whether the person should be considered a resident of Eretz Yisroel or one of chutz la’aretz.

ALWAYS YOM TOV IN ERETZ YISROEL

Rav Shlomoh Zalman Auerbach (Minchas Shelomoh 1:19:7) issued the following ruling: He contends that someone who owns a residence in Eretz Yisroel that he uses for every Yom Tov need keep only one day of Yom Tov while in Eretz Yisroel, even though he lives in chutz la’aretz the rest of the year. Rav Shlomoh Zalman’s logic is that this individual no longer has the custom of keeping two days of Yom Tov since he is always in Eretz Yisroel for Yom Tov.

A YESHIVA BACHUR WHO INTENDS TO REMAIN IN ERETZ YISROEL

What is the halachic status of a yeshiva bachur studying in Eretz Yisroel whose family lives in chutz la’aretz, but who intends to remain in Eretz Yisroel long-term? Can he establish a different custom from his family?

In answering a different question, the Magen Avraham (468:12) contends that a yeshiva bachur who is in one place for two or three years does not take on the customs of his yeshiva town. On the other hand, other sources quote that accepted practice is that a yeshiva bachur from chutz la’aretz attending a yeshiva in Eretz Yisroel observes only one day of Yom Tov (Shaarei Teshuvah 496:2). Are these two sources in dispute? Rav Moshe Feinstein contends that they are not, explaining that a student who is financially dependent on parents who have not accepted his decision to remain in Eretz Yisroel should follow their practice, whereas if he is financially on his own, or they agree to support him in Eretz Yisroel, he observes only one day of Yom Tov (Shu”t Igros Moshe, OC 2:101).

Others disagree, contending that if he might remain in Eretz Yisroel, he need observe only one day of Yom Tov. According to this approach, the Magen Avraham considered him a resident of his parents’ town only if he is certain that he is returning there after his Yeshiva years (Shu”t Yabia Omer 6:oc:40; Shu”t Yechaveh Daas 1:26).

“A DAY AND A HALF”

A colloquial expression has developed referring to someone as observing Yom Tov for “a day and a half.” This term does not mean that the person observes Yom Tov for 36 hours. It means that the rav who paskined felt uncertain whether he/she should be observing one day Yom Tov or two, and therefore ruled that he/she should not perform any melacha on the second day of Yom Tov, but should daven and observe it otherwise as a weekday.

We can now begin to comprehend Meira’s question:

“Some of my friends have been told to keep two days of Yom Tov, others were told to keep one, and still others were told not to work on the second day but otherwise to treat is as a weekday. I have been unable to figure out any pattern to the answers they receive.”

Truthfully, there is a very wide range of opinion what determines whether one observes one day of Yom Tov or two. Thus, Meira’s confusion is very understandable. Each friend’s rabbi may be applying completely different criteria to determine how many days of Yom Tov to observe, and that is why Meira cannot figure out any pattern. Obviously, someone should ask his or her rav what to do and follow his instructions.

The Torah refers to the Yomim Tovim as Moed. Just as the Ohel Moed is a meeting place between Hashem and the Jewish people, so too a moed is a meeting time for Hashem and His people (Hirsch, Vayikra 23:3 and Horeb). Perhaps being more distant from Hashem in chutz la’aretz necessitates an extra day to celebrate our unique relationship with Him!

The Kosher Way to Collect a Loan

clip_image002

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

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

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

THE MITZVAH OF LENDING MONEY

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

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

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

RICH VERSUS POOR

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

FAMILY FIRST

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

WHAT IF I KNOW THE BORROWER IS A DEADBEAT?

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

THE RESPONSIBILITIES OF THE BORROWER

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

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

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

COLLECTING BAD DEBTS

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

THE PROHIBITION OF BEING A NOSHEH

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

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

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

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

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

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

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

HOW CAN I GUARANTEE THAT I GET MY MONEY BACK?

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

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

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

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

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

CO-SIGNERS

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

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

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

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

ANOTHER APPROACH

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

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

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

1. Responsibility for the mashkon.

2. Evaluation of the mashkon.

3. Converting the mashkon into cash.

1. Responsibility for the mashkon.

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

2. Evaluation of the mashkon.

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

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

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

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

3. Converting the mashkon into cash.

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

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

SHLEMIEL THE BORROWER

Nachman once came to me with the following shaylah:

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

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

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

The Rights of a Copyright Holder

clip_image001

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 owner of his invention? May a rav prevent people from taping his shiur? May one copy computer software or music disks?

We will IY”H provide the background and history behind these issues. Our purpose is not to paskin anyone’s shaylos but to introduce and explain the subject matter. An individual should ask his own shaylah from his own rav.

For our purposes, we are 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 Rambam. Maharam invested a huge amount of time checking and correcting the text for this edition, included notes of his own, and apparently also invested significant amounts of his own money in the undertaking. A competing publisher, also a non-Jew, produced an edition of Rambam (without Maharam’s corrections and notes) at a greatly reduced price, apparently out of spite that Maharam had engaged his competitor. It appears that the second publisher might have been selling the set of Rambam at a loss with the intent to ruin the Maharam financially. The halachic question was whether an individual may purchase the less expensive edition of the second publisher.

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

Subsequent to Rama’s ruling, it became common practice for publishers to include in their works a cherem (plural: charamim) from a well-known posek banning the publishing of the same sefer, usually for a period of ten to twenty-five years. 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 charamam encouraged publishing more seforim and the spread of Torah learning.

Generally, these charamim protecting the publisher’s rights were accepted and obeyed. However in the early nineteenth century, an interesting dispute arose between the Chasam Sofer, the Rav of Pressburg, and Rav Mordechai Benet, the Rav of Nikolsburg, germane to the production of the famous Roedelheim machzorim. Two competing editions of these machzorim were produced, the first by Wolf Heidenheim, who had invested much time and money gathering and comparing 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 is unnecessary to guarantee publication of machzorim by issuing charamim. Machzorim are a common item, and publishers know that they will profit from producing them. Thus, the entire purpose for which these charamim were created, to guarantee the production of seforim, does not apply. Furthermore, since non-Jewish publishers will certainly produce machzorim, issuing a cherem against competition will benefit the non-Jewish publishers, who will be faced with less competition, more than it will benefit a Jewish publisher such as Wolf Heidenheim. In addition 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. 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 since 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 Tshuvah, Yoreh Deah 236:1, quoting Tiferes Tzvi. PT 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 Rama (Choshen Mishpat 292:20). In a certain community, there were 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 halacha basis did the Rosh insist that these individuals relinquish their seforim? After all, it is an individual’s prerogative to lend his property. Clearly, Rosh contended 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-size edition of Shulchan Aruch with major commentaries, accompanied for the first time by the anthologized commentary, Pischei Tshuvah. (This is the Pischei Tshuvah 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 Pischei Tshuvah from its author. At the time Pischei Tshuvah had been printed only once, in a small-size edition including only the Shulchan Aruch and one other commentary. The plaintiff claimed that Balaban had violated his exclusive ownership rights to Pischei Tshuvah.

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

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

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

A contemporary of the Sho’eil uMeishiv, Rav Yitzchok Shmelkes, also ruled against Balaban but disagreed with Sho’eil uMeishiv’s reasoning (Shu”t Beis Yitzchok, Yoreh Deah 2:75). Beis Yitzchok contends that halacha does not recognize intellectual property rights as inherent ownership. In Beis Yitzchok’s opinion, the author has a right of ownership but only because it is accepted by government regulation, 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 Sho’eil uMeishiv and that of Beis Yitzchok. According to Sho’eil uMeishiv, the ownership of an author exists forever just as any other property that he owns. Upon his passing, they are inherited by his heirs, just like his other property. However in Beis Yitzchok’s opinion, the ownership rights extend only according to what is established by government regulation and expire after a number of years. Moreover, in most countries a copyright is valid only if registered, and it must also be indicated in the published work. Presumably this was not true in the Beis Yitzchok’s place and time, since he applied civil copyright law to Pischei Tshuvah even though the author had not indicated any copyright in the sefer.

Thus, whether halacha recognizes intellectual property ownership is a three-way dispute, Rav Valdberg rejecting it, Sho’eil uMeishiv accepting it, and 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 freely republished and that Mishnah Berurah may be published by anyone, provided that 4% of its volumes printed are donated to shullen and batei medrash. However, he stipulated that most of his seforim could not be republished without permission of his family members and that the proceeds from such publication should succor his widow for the rest of her life. Chofetz Chayim’s instructions imply that he considered his ownership to be in perpetuity. Furthermore, Chofetz Chayim did not publish any words of cherem or copyright inside his seforim. Thus, he seems to have presumed ownership over future editions of seforim on the basis of intellectual property (Shu”t Minchas Yitzchok 9:153), although it is possible that he based it on dina dimalchusa dina, following the opinion of Beis Yitzchok.

MAY A RAV PREVENT PEOPLE FROM TAPING HIS SHIUR?

On the basis of the above discussion whether 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 (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 (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’el 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 did 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.

The Fateful U-Turn

                                                                     j0442430

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

 

ACT I – The Fateful U-Turn

Location: THE HIGHWAY

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

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

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

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

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

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

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

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

ACT II – THE COURTROOM

Location: The offices of the beis din.

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

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

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

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

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

SHO’EIL

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

REUVEN’S DEFENSE

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

WHAT ARE THE RESPONSIBILITIES OF A SOCHEIR?

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

WAS REUVEN A SHO’EIL OR A SOCHEIR?

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

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

BUT WAS THIS A CASE OF NEGLIGENCE?

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

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

DID REUVEN ASSUME RESPONSIBILITY FOR THE CAR?

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

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

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

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

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

WHY IS A BORROWER DIFFERENT FROM A RENTER?

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

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

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

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

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

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

First we must clarify two shaylos:

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

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

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

ACT III – SOME HORSEPLAY

Location: Thirteenth Century Germany

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

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

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

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

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

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

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

ACT IV – A COLLISION

Location: Bavel, Seventeen Hundred Years Ago

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

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

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

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

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

How do we paskin?

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

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

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

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

ACT V – EPILOGUE

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