How Much May I Charge?

Question #1: Overcharged esrog

“My esrog dealer charged me $150 for an esrog. My brother-in-law, who knows the business, told me that he overcharged me, and the esrog is not worth more than $35. Can I get my money back?”

Question #2: Just a little bit

“Am I permitted to charge a little bit above the market price for an item?”

Question #3: Damaged coin

“I noticed that someone tried to scrape off some of the metal on a coin that I have. May I use it?”

Question #4: Expert error

“I purchased a rare coin from a dealer, and he clearly undercharged me. Am I required to tell him about it?”

Answer:

Upon graduation from olam hazeh, the first question asked upon entering the beis din shel maalah, the Heavenly Court, is: “Did you deal honestly with your fellowmen?” (Shabbos 31a). The Aruch Hashulchan (Orach Chayim 156:3) explains that this does not mean, “Did you steal?” or “Were your weights honest?” Someone who violated these laws, whether dealing with Jewish or non-Jewish clientele, qualifies as a rosho gamur. Rather, the Heavenly Court’s inquiries are: “Did you make unjustified claims about the quality of the merchandise that you are selling?” “Did you speak to people softly in your business dealings?” “Did you curse, scream, or act angrily with people?” “Did you realize that all livelihood comes only from Hashem and act within that framework?”

Anytime is ideal to discuss the details of this topic; I chose to do so this week, since the parsha involves an obvious question as to whether Rivkah and Yaakov were permitted to deceive Yitzchok about the brochos.

In parshas Behar, the Torah teaches, Lo sonu ish es amiso (Vayikra 25:17). The word sonu has the same root as the word onaah, the name by which we call this mitzvah. The word onaah is difficult to translate into English, but for the purposes of our article, I will use the word overcharging, although, as we will soon see, onaah also includes situations of underpayment or of misrepresentation. The purpose of this article is to present the basic principles; specific questions should be referred to your own rav or dayan. Just as everyone must have an ongoing relationship with a rav for psak and hadracha, one must also have an ongoing relationship with a dayan who can answer the myriad Choshen Mishpat questions that come up daily.

Three types of onaah

There are three types of overcharging that are included in the prohibition of onaah, all of which involve taking unfair advantage:

(1) Fraud – when the item being sold contains a significant flaw that the seller conceals or otherwise misrepresents.

(2) Overpricing – when one party to the transaction is unaware of the market value of the item.

(3) No recourse – when someone is aware that he is being overcharged, but he has no recourse, because of the circumstances.

I will now explain a bit more about each of these types of onaah.

(1) Fraud

It is prohibited to hide a defect or to misrepresent an item. For example, the Mishnah (Bava Metzia 60a) and the Gemara (ibid. 60b) prohibit selling watered-down products, or painting something to hide a flaw or to make it look newer than it is (Shulchan Aruch, Choshen Mishpat 228:9). One may not add inferior material to a quality product when the purchaser will see only the quality product (Bava Metzia 59b-60a; Shulchan Aruch, Choshen Mishpat 228:10, 11).

Onaah is prohibited not only in sales, but also in other transactions, such as hiring people or contracting work (Shulchan Aruch, Choshen Mishpat 227:35, 36, 16).

Shidduchin

Holding back significant medical, emotional or spiritual issues that could affect a shidduch is also prohibited because of onaah. To quote the words of the Sefer Chassidim (#507): “When arranging matches for your children or other family members, do not hide from the other party medical issues that would have been reason for them to reject the shidduch, lest they afterwards choose to annul the marriage. Similarly, you should tell them about deficiencies in halachic observance significant enough that the other party would have rejected the marriage.”

By the way, there is no halachic requirement to reveal detrimental information to a shadchan, and one is not required to inform the other side before the couple meets. However, it must be told sometime before the shidduch is finalized. This particular topic is more detailed than we can discuss in this article. Indeed, I devoted a different article to this topic, entitled “Can I Keep My Skeletons in the Closet.” There are also other articles on the website that touch on this broad topic, which can be found with the search word shidduch.

Insider trading

Insider trading, meaning buying or selling a commodity or security on the basis of information that is not available to the general public, is now a heavily punished felony in the United States, but was once legal there and is still legal in many countries of the world. Halacha prohibits all forms of insider trading because of onaah, since the insider is taking advantage of the other party.

(2) Overpricing

A second type of onaah is when there is no flaw or other problem with the quality of the item being transacted, but the price paid is greater than the item’s market value. Overcharging of this nature is also prohibited because of onaah.

Over a sixth

When the price, or range of price, of an item can be established, if an item was sold at more than one sixth over the market price, the aggrieved party has a right to return the item for a full refund (Shulchan Aruch, Choshen Mishpat 227:4.) For example, the stores that stock this item sell it for up to $600, and the seller charged the purchaser over $700. In this instance, according to halacha, the purchaser can return the item and get his money back. (There are detailed halachos that govern how much time he has to make this claim.)

One can demand return compensation only when the party did not use the item once he realized that he had been overcharged.

Another case where the item cannot be returned: The aggrieved party realized that he was overcharged, but decided to keep the item anyway. In the interim, the price of the item dropped such that he can now get a much better deal. Since his reason to back out on the deal is not because of the original overcharge, he may not invalidate the original sale (Shulchan Aruch, Choshen Mishpat 227:9).

It is interesting to note that there are authorities who rule that even the aggrieving party can withdraw from the deal when the price was so much off mark. This is because they contend that someone does not agree to a transaction if he knows that the price was so disproportionate to the item’s value (Rema, Choshen Mishpat 227:4.)

One sixth

The halacha is that if the overcharge was by exactly one sixth, the deal holds, but the aggrieved party is entitled to be refunded the overcharge sum (one sixth of what he paid). Thus, if the item was worth $600 and it was sold for $700, the purchaser is entitled to receive $100 back.

Less than a sixth

If the overcharge was less than a sixth, which means that the price was clearly too high but less than a sixth over the market value, the deal is valid, and the aggrieved party is not entitled to any compensation. Thus, if the item was worth $600 and it was sold for $690, the deal remains as is.

Is it permitted?

At this stage, we can address one of our opening questions: “Am I permitted to charge a little bit above the market price for an item?” Granted that the deal will be valid if someone did this, is one permitted to do so lechatchilah?

Indeed, this is an issue that is disputed by the halachic authorities (Tur, Choshen Mishpat 227, quoting Rosh). The Tur explains that min haTorah, overcharging is prohibited if one is aware that this is the case, but Chazal were lenient, because it is difficult for anyone to be this accurate. However, many prominent authorities are of the opinion that it is prohibited to overcharge intentionally, even by a very small amount (Aruch Hashulchan, Choshen Mishpat 227:2).

The Tur concludes that a yarei shamayim, a G-d fearing person, should try to act strictly regarding this law.

The Shulchan Aruch rules that it is uncertain whether it is permitted to overcharge by less than a sixth (Shulchan Aruch, Choshen Mishpat 227:6). Some major authorities conclude that a yarei shamayim should return the difference, even in a case where it amounted to less than a sixth (Sma 227:14).

Furthermore, when the price on a specific item is very exact, because of government regulations or market conditions, even those authorities who are lenient about overcharging a small amount will agree in such a case that it is prohibited to charge any more than the accepted market price (Aruch Hashulchan, Choshen Mishpat 227:3).

Cash fast

Here is a situation in which someone cannot demand return compensation, even though he sold the item at way below its value: A seller needed to raise cash quickly and therefore sold items without checking their proper value. He cannot request his money back by claiming that he was underpaid, because it is clear that, at the time he sold them, he was interested in selling for whatever cash he could get (Shulchan Aruch, Choshen Mishpat 227:9).

All items?

The Mishnah (Bava Metzia 56b) quotes a dispute between tana’im whether the laws of overcharging by more than a sixth apply to items such as sifrei Torah, animals and precious stones. The tanna kamma contends that the laws of onaah apply, including the right to have the item returned, whereas Rabbi Yehudah holds that these laws do not apply to such items. In the case of sifrei Torah, this is because the pricing is difficult to determine, and in the cases of animals and precious stones, because the purchaser may have a special need for this specific animal or stone which makes it worth more to him than the usual market price. For example, this animal has the same strength as an animal the purchaser already owns, making it possible to pair them together in work, or the stone matches well to the specific color and size he is using for a piece of jewelry (Bava Metzia 58b).

Wartime

Although most tana’im disagree, the Gemara (Bava Metzia 58b) adds that Rabbi Yehudah ben Beseira ruled that there is no onaah for selling horses, shields or swords during wartime, because your life might depend on it. I presume that this means that during a war, the value of these items far exceeds their normal market price, and that, therefore, even an inflated price is not considered overcharging. The halacha does not follow the opinion of Rabbi Yehuda ben Beseira. Therefore, should someone be overcharged for the purchase of these materials during wartime, he is not required to pay more than the accepted market price.

Overcharged esrog

At this point, we are in a position to examine our opening question: “My esrog dealer charged me $150 for an esrog. My brother-in-law, who knows the business, told me that he overcharged me, and the esrog is not worth more than $35. Can I get my money back?”

This question is discussed in Shu”t Beis Yitzchak (Orach Chayim 108:4). He explains that the laws of invalidating a transaction because of an overcharge do not apply to an esrog purchased for use on Sukkos, unless the esrog was not kosher. His reason is that an individual has all sorts of reasons why he wants to purchase a specific esrog, and that, therefore, high-end esrogim do not have a definitive price. We could compare this to someone who purchases a painting at auction, and an art expert contends that the purchaser overpaid. The opinion of the expert does not allow the buyer to invalidate his acquisition.

Expert error

At this point, let us return to one of our opening questions: “I purchased a rare coin from a dealer, and he clearly undercharged me. Am I required to tell him about it?”

An expert can also be overcharged or underpaid (Mishnah, Bava Metzia 51a; Shulchan Aruch, Choshen Mishpat 227:14). Therefore, the purchaser is required to point this out to the dealer.

Furthermore, if you know that the price of an item has gone up, but the seller is unaware of this, you are required to let him know (Aruch Hashulchan, Choshen Mishpat 227:1).

Mistaken overcharging

A person who overcharged someone in error is required to bring it to his attention. All the halachos mentioned above of overcharging apply, even if it was unintentional (Pischei Choshen 4:10:ftn #1).

Real estate

The Mishnah (Bava Metzia 56a) states that there is no onaah regarding real estate. This means that the concept of a deal being invalidated when the price is more than a sixth overpriced does not relate to land. Nevertheless, it is prohibited to deceive someone in matters germane to property, such as by withholding information that affects the value of the property or its utility (Sma 227:51, quoting Maharshal; Pischei Teshuvah 227:21, quoting Ramban and Sefer Hachinuch).

Title search

If someone sells a property based on his assumption that proper ownership has been established, which is later legally challenged, the purchaser has a claim to get his money back (Shulchan Aruch, Choshen Mishpat 226:5).

Legal tender

At this point, let us examine another of our opening questions: “I noticed that someone tried to scrape off some of the metal on a coin that I have. May I use it?”

In earlier days, a coin’s value was usually determined by its weight and purity. In today’s world, the value of a coin or other currency is determined predominantly by the market forces germane to that country’s currency, but not by the quality of the individual coin, unless it is damaged to the point that it will no longer be accepted in the marketplace. Therefore, today, it is acceptable to use a damaged coin or bill that the average merchant or the bank will accept (Shulchan Aruch, Choshen Mishpat 226:6). One is even lechatchilah permitted to give someone a damaged coin or bill and hoard the nice-looking ones for himself, since it is not harming the other party in any way (Shulchan Aruch, Choshen Mishpat 227:6 and Sma).

Counterfeit money

However, this is true only when the bill or the coin is damaged, but is still legitimate and legal currency. It is forbidden to use counterfeit money, even if you ended up with it in error. Once you know that the currency you are holding is counterfeit, it is not only forbidden to use it, you are required to destroy it (Shulchan Aruch, Choshen Mishpat 227:18). It would seem to me that it is permitted to turn the counterfeit item over to the authorities for investigation and enforcement.

Calculated profit

According to what we have said until now, a person is obligated to know the market value of a product that he is selling and he will violate onaah if he sells it at a price that is clearly significantly above the market price. This means that one must constantly be aware of the fluctuations in market price of all items he is selling. Is there any way one can avoid having to be constantly aware of the market values of the items he is selling?

Yes, there is. It is permitted, halachically, to do the following: A seller may tell the purchaser, “This is the cost at which I acquired this item, and I add this percentage for my profit margin. Therefore, I arrive at the following price” (Bava Metzia 51b as explained by Rambam, Hilchos Mechirah 13:5; Shulchan Aruch, Choshen Mishpat 227:27).

(3) No recourse

Previously, I mentioned that there is a type of onaah in which a person is aware that he is being overcharged, but that circumstances force him to pay more than he should for the item. There are several examples of this. One is when a business or cartel creates a monopoly and then raises prices because they control the market. Since the halachos germane to this situation are somewhat complicated, I will leave this topic for a different time.

A second situation is when someone has a serious need for a product now – and the seller takes unfair advantage, insisting on a price that is well beyond what the item should fetch. For example, someone needs a medicine and can find it only at a certain place, which decides to increase the price tenfold, simply to gain huge, unfair profit. This is forbidden.

Was the seller wrong?

I once purchased a four volume reprint of an old, very hard-to-read edition of a relatively rare sefer. Subsequently, I discovered that the sefer had been reprinted in a beautiful format, a fact which the bookdealer must surely have known. Had I known that the new edition existed, no doubt that I would have purchased it instead. I will leave my readers with the following question: Was the bookdealer permitted to sell me the old edition without telling me that a new one exists? Does this qualify, halachically, as insider trading or deception, and is it therefore prohibited as onaah?

Conclusion

The Gemara tells us that the great tanna Rabbi Yehoshua, the rebbe of Rabbi Akiva, was asked: “What is the best means to become wealthy?” Rabbi Yehoshua advised that, aside from being very careful in one’s business dealings, the most important factor is to daven to He Who owns all wealth (Niddah 70b). A Jew must realize that Hashem’s Torah and His awareness and supervision of our fate is all-encompassing. Making this realization an integral part of our thinking is the true benchmark of how His kedusha influences our lives.

 

 

Shidduchim and Lashon Hara

cell phone in handThis week’s parsha teaches about Miriam speaking loshon hora about her brother, thus providing an opportunity to discuss the questions about Shidduchim and Loshon Hora.

How should one ask and answer shidduch-related questions?

Question #1: “Someone called me inquiring about a neighbor for shidduchim purposes. From years of dealing with this boy, I know that his midos could use some polishing. What should I say?”

Question #2: Yaakov* calls to find out about a neighborhood girl, Rochel. She is one of the most wonderful people walking the face of the earth, and you would love to see her happily married; Yaakov sounds like a real mensch. However, her father, Mr. Weiss, is one of the most dishonest people you have ever met. Do you say anything to Yaakov about Rochel’s father?

* All stories in this article are actual situations, but the names have been changed.

Deciding what information to share about shidduchim often requires the wisdom of Solomon and the halachic prowess of Rav Moshe Feinstein. On the one hand, we want to assist people to find their proper zivug, while at the same time, we need to avoid transgressing any laws of speech, and imparting information that harms someone constitutes loshon hora (Rambam, Hilchos Dei’os 7:5). This is true, even if the information does not imply that he/she did anything wrong, such as mentioning that someone is in debt. While there is nothing evil about owing money, it is loshon hora to share this information, since the debtor may now find it difficult to borrow a necessary business loan, or have difficulty finding a partner for a commercial endeavor (Chofetz Chayim, end of Hilchos Rechilus, tziyur 2).

Similarly, telling people that one store tends to be expensive often involves the prohibition of loshon hora (Nesiv Chayim, Hilchos Rechilus, 9:8). A storekeeper is permitted to charge a little more than his competitor does, simply because his overhead costs are greater. Therefore, I may be affecting his halachically-permitted livelihood when I report to others that they can get a better deal elsewhere. Although my motivation to save someone money is noble, it is misplaced to do so at the expense of the other Jew, who needs to make a living. (There are circumstances when I may tell someone that he/she can get a better deal elsewhere, such as when the person I am advising is a family member or close friend, or the overcharge is unreasonable; I will need to discuss this subject at a different time.)

If someone asks me for advice, I am required to advise him/her to the best of my ability (Rambam, Hil. Rotzei’ach 12:14; Shaarei Teshuvah 3:54). Providing good advice fulfills two different mitzvahs: First, it is a positive implementation of the mitzvah of lifnei iveir, not to place a stumbling block before the blind. Just as the Torah prohibits giving bad advice and terms it misleading someone who is “blind” in this matter, providing good advice fulfills this mitzvah, since I am helping someone in a matter in which he lacks clarity (see Sefer Hamitzvos, Lo Saaseh #299). In addition, providing good advice fulfills the mitzvah of ve’ahavta le’rei’acha kamocha, love your neighbor as yourself.

Translating these issues as they relate to shidduchim, someone who shares information inappropriately and nixes a potentially good shidduch could violate the laws of loshon hora, because it causes someone harm. On the other hand, providing accurate and appropriate information about shidduchim fulfills the mitzvahs of giving good advice, and covering up negative information that one should tell may violate lo saamod al dam rei’echa, Do not stand by idly when your neighbor is endangered (Vayikra 19:16). Furthermore, not only is it permitted to investigate a potential shidduch, but one is required to research the background of the potential partner to ascertain that he/she has no issues that could disrupt married life (see Rabbeinu Yonah, Avos 1:7; Chofetz Chayim, Hil. Loshon Hora 4:11, based on Rashi to Shavuos 39b). Thus, I fulfill a third mitzvah by providing halachically appropriate information for a potential shidduch, since I am assisting someone to perform his or her necessary research.

So, when may I provide negative information, and when may I not? Answering shidduch inquiries is a difficult balancing act. One is responsible to see that someone entertaining making a shidduch has all the information that he or she needs, while, on the other hand, one must be careful not to provide superfluous negative information.

The answers to these questions vary according to circumstances and this article does not substitute for asking a rav a specific shaylah. Nevertheless, it will provide basic guidelines. As a starting point, we need to clarify several important details:

  1. Do you know the parties involved? Do you know whether this is an appropriate shidduch for this person?
  2. Would everyone consider the negative information to be important, or would it depend on the individual?

III. Do you know the caller? Do you know what his/her standards are?

Let us analyze these possibilities and see how the halacha applies in each situation. Again, the major rule is: Am I supplying information that they will use to decide whether to pursue this shidduch, or am I supplying negative information that has no purpose?

NO TACHLIS

Do you know whether this is an appropriate shidduch?

Consider the following case:

Leah’s parents, who are looking for a working man, ask you about Levi, who wants to study in kollel for several years. Before sharing any personal information, first find out whether this shidduch would be considered by both sides. Otherwise, one may be sharing loshon hora without any purpose, since the shidduch is, in any case, out of the question. Instead of giving information, simply point out that their life plans are very different. If the two sides want to consider the shidduch anyway, then proceed by providing important information, even if it is potentially negative, as I will explain.

The same is true if the two families would not be interested in a match because of radically different family backgrounds, styles of Yiddishkeit, or age.

Example: You are called to provide information about a neighbor, a fine family, but with some negatives. Before providing this information, first see if the shidduch makes sense: For example, if the caller is looking only for a litvisha family, and the neighbor is chassidish and would only entertain a chassidisha shidduch, then the shidduch would not be considered anyway, and you have told loshon hora without any purpose.

HIGHLY NEGATIVE FACTS

When the negative information will certainly cause the other party to reject this shidduch, it is better to simply convince the caller that the match is inappropriate, without being more specific. This is a situation in which one should perhaps be vague and say that you just do not think the shidduch will work. Many specific cases require further rabbinic guidance to clarify whether or not one is required to reveal the information.

If you cannot derail the shidduch without being specific, and you are aware of negative information that would concern most people, then you must reveal it, because of the halacha of lo saamod al dam rei’echa. Examples of such situations include: knowledge that someone cannot have children (Shu’t Tzitz Eliezer 16:4), of a medical condition that would concern most people, or of a history of violent behavior. This information can and should be shared. Similarly, one must reveal information about someone whose observance level is not what it is purported to be (see Sefer Chassidim #507; Shu’t Panim Meiros 1:35).

When the halacha requires or permits revealing negative information, several other factors must be kept in mind. One should share only information that one knows first-hand and not repeat what one has heard from others. (If one has strong evidence of a serious problem, one can suggest that they contact someone who has first-hand knowledge of the situation.) In addition, one must be careful not to exaggerate. Furthermore, one’s sole purpose in sharing the information must be out of motivation to advise the inquirers and not because one is angry or dislikes the person. In addition, one should only say the negatives if there is no other way to accomplish what one needs to (Chofetz Chayim, Hilchos Loshon Hora 10:2).

WHAT NOT TO TELL

Must one reveal every liability? No! The Chofetz Chayim distinguishes between someone who is ill and someone who is weak; the former being information one should reveal and the latter being information that one should not (Be’er Mayim Chayim, Hilchos Rechilus 9:8). Contemporary authors discuss which medical conditions are concerned “illnesses” or merely “weaknesses.” For example, poskim consider diabetes to be an illness, whereas hay fever would usually qualify as a “weakness.”

In an article entitled May I Keep my Skeletons in the Closet (available on RabbiKaganoff.com) I noted that someone considering a shidduch is required to reveal his having a serious medical issue, but does not need to do so before the two parties have become well acquainted. He certainly has no requirement to tell a shadchan. A third party being asked may also be governed by the same rules and should discuss this question and its details with a halachic authority.

KNOW NOTHING

At this stage, let us examine the first question I raised above: “Someone called me inquiring about a neighbor for shidduchim purposes. From years of dealing with this boy, I know that his midos could use some polishing. What should I say?”

Let us assume you receive a cold call inquiring about a neighbor about whom you have both positive and negative information and observations. In most instances, the liabilities one knows about a neighbor are relative: Even if you know that he has a temper that makes you uncomfortable, or that he is not particularly reliable or punctual, you have no idea what the standards of the caller or the party for whom he is researching are concerning these issues. Before sharing information, you need to know the standards of the caller. If you do not know the person who is calling, and are unable to quickly ascertain their standards, you should say only positive things about the neighbor.

A neighbor’s unbecoming details may be detrimental to one person and advantageous to another. It might indeed be that the caller or the potential bashert would consider your neighbor to be very reliable or would not be concerned about the degree of anger that your neighbor possesses. You might be nixing what could have been a potentially good shidduch. Therefore, if the neighbor does not have an anger problem that would alarm anyone considering a shidduch with him, one should not reveal this information without knowing the calling party. After all, it may be that your neighbor is a very appropriate shidduch choice for the caller.

An example is in order: Zahavah follows an approach to tzniyus that is common in many frum circles, but does not conform to how Sheina thinks one should dress. If someone Sheina does not know asks her about Zahavah, she should refrain from commenting on Zahavah’s mode of dress. If the caller asks her directly whether Zahavah dresses tzniyusly, Sheina should answer that she does, since she has no idea what the caller means by that question.

I personally know of a proposed shidduch where the couple did not meet because someone did not know this halacha. Daniella told the caller that she felt her former classmate’s standard was not that of a model Beis Yaakov girl. Although the classmate’s dress code did not meet Daniella’s, it was probably adequate for the family and young man who asked. However, because of the answer they received, the family assumed that the girl’s standards were way below theirs and would not consider the shidduch, notwithstanding that the standards on both sides were the same. To the best of my knowledge, both parties are still single, and several people who know both of them feel that their personalities are unusually well suited. However, his family will not consider this girl for their yarei shamayim son, and no one can convince them otherwise. As the expression goes, you do not get a second chance to make a first impression.

In this instance, Daniella violated the laws of both loshon hora and of motzi shem ra, relating disparaging, false information. She violated loshon hora, because she supplied unnecessary information that is harmful to the other person, and motzi shem ra because they were left with a false, negative impression.

A LITTLE KNOWLEDGE

All of this changes if the caller clarifies what standard of tzniyus she meant in her question, and it is a standard that Zahavah or the classmate does not follow. In this instance, the question should be answered fully and correctly, since one now comprehends clearly what the caller meant.

DOES HE “KNOW HOW TO LEARN?”

Similarly, if someone you do not know asks whether a person you are acquainted with “knows how to learn,” you should answer affirmatively, unless the person has little or no learning background. The rule here is, does he have enough learning background that someone would say that he “knows how to learn”? As long as he meets this minimal standard, one should answer affirmatively, until one knows what the caller’s definition and frame of reference is.

SELF-DEPRECATING

There is one other situation where personal or potentially negative information can be told: one may relate any information that you have heard the person say about himself or herself in public (Rashi, Arachin 16a). Similarly, it is permitted to relate something about a person that he/she does publicly. Thus, one may tell whether someone dresses stylishly or not, or that someone does or does not wear a hat when walking through the street. In all of these instances, one’s motivation should be pure – that is, simply to clarify to the person whether this is an appropriate shidduch or not.

A very common case is someone who is not of an observant background. If the person freely says in public that he/she is a baal teshuvah or of a non-observant family, one may tell a potential shidduch this information. However, if the information is not readily known, in most situations, one should not reveal this information.

HOW TO ASK

At this point, it is appropriate to explain how to ask about shidduch information when you need to call someone that you do not know. First, tell the other person who you are and for what type of person you are inquiring, before asking them for specific information. This way, the other party has some background to understand the context of the questions. Usually, the more specific your questions, the more accurately the other person will understand your standards and thereby be able to provide the information you seek.

KABBALAS LOSHON HORA

It is important to realize that although one may ask whatever is needed  about a potential shidduch, and may decide to pass up a shidduch based on the information received, one should not assume that any negative information received is absolutely true. The halacha of kabbalas loshon hora, accepting loshon hora, requires one to assume that there may have been a misunderstanding, or to interpret some other justification for the person’s actions or attributes.

As mentioned earlier, answering shidduch inquiries is a difficult balancing act. We should all daven for Hashem’s help to fulfill this tremendous mitzvah correctly and to be able to assist those who need shidduchim to swiftly find their bashert.

 

Rav Yehudah Hachassid and His Shidduchin II

quill and paperIn a previous article, we discussed the writings of Rav Yehudah Hachassid, who prohibited or advised against many potential marriages that are otherwise perfectly acceptable according to halachah. But first some background on the chassidei Ashkenaz.

Who was Rav Shmuel Hachassid?

Rav Yehudah Hachassid’s father, known as Rav Shmuel Hachassid, was a very righteous individual who was a great mekubal, one of the baalei Tosafos, and a highly-respected leader of twelfth century Ashkenazic Jewry. Because of his great levels of righteousness, Rav Shmuel Hachassid was also sometimes called Rav Shmuel Hakadosh or Rav Shmuel Hanavi.

Rav Shmuel Hachassid was born in Speyer, one of the bastions of Torah that then existed on the banks of the Rhine River. (People whose family name is Shapiro and its various pronunciations and spellings are probably descended from someone who lived in Speyer; you might be progeny of either Rav Shmuel or Rav Yehudah Hachassid.) Rav Shmuel was the rabbinic leader of the community in Speyer and the head of a yeshivah. He was also the repository of much kabbalistic knowledge, both oral and written, that had been handed down from the generations of great Ashkenazic leaders before him, including many great baalei kabbalah. He became the recognized leader of a scholarly movement whose members were called the Chassidei Ashkenaz, individuals who lived their lives in an other-worldly existence, devoted exclusively to Torah and growth in yiras shamayim. The lengthy Shir Hayichud, recited in many congregations in its entirety after davening on Kol Nidrei evening, is attributed to Rav Shmuel Hachassid.

One of Rav Shmuel’s sons was Rav Yehudah Hachassid, who was born in approximately 4910 (1150). Rav Yehudah Hachassid is also one of the baalei Tosafos, and is quoted several times in the Tosafos printed in the margins of our Gemara (for example, Tosafos, Bava Metzia 5b, s.v. Dechashid; Kesuvos 18b, s.v. Uvekulei). Rav Yehudah Hachassid’s students included a number of famous rishonim who are themselves baalei Tosafos, such as Rav Yitzchok Or Zarua, Rav Elazar ben Rav Yehudah (the Rokeach), Rav Moshe of Coucy (the Semag), and Rav Baruch ben Rav Yitzchok (the Sefer Haterumah).

Rav Yehudah Hachassid also continued his father’s role as the head of the Chassidei Ashkenaz. He followed what we would consider an ascetic relationship to this world. For example, he fasted all day the entire week, eating only in the evenings. His disciple, the Or Zarua, records that Rav Yehudah Hachassid, fasted two days Yom Kippur (Hilchos Yom Kippur, end of #281).

Rav Yehudah Hachassid also authored works on kabbalah and is commonly attributed as the author of the poem Anim Zemiros, sung in many shullen at the end of Shabbos davening. He was also the source of works that can be easily read by the layman, two of which, the Sefer Chassidim and the Tzavaas [the ethical will of] Rav Yehudah Hachassid, are the subjects of today’s article. The Sefer Chassidim includes halacha, minhag, mussar, and commentary on tefillah. This work is mentioned numerous times by the later halachic authorities, as are many of the instructions in his tzavaah. As we will soon discuss, there is some question as to whether he actually wrote the tzavaah or whether he transmitted its content orally and it was recorded by his children or disciples. Rav Yehudah Hachassid graduated to olam haba on Taanis Esther, 4977 (1217), in Regensburg, Germany.

The tzavaah of Rav Yehudah Hachassid

In his ethical will, Rav Yehudah Hachassid prohibits and/or advises against a vast array of practices for which he is the earliest, and sometimes the only, halachic source. Why did Rav Yehudah Hachassid prohibit these actions? Although we are not certain, because he offered no explanation, many later authorities assume that, in most instances, these were practices that Rav Yehudah Hachassid realized are dangerous because of kabbalistic reasons. Rav Shneur Zalman of Liadi (the first Lubavitcher Rebbe, author of Shulchan Aruch Harav and Tanya) is quoted as having said that to understand one of Rav Yehudah Hachassid’s statements in his tzava’ah would require a work the size of the Shelah, a classic of halachah, kabbalah and musar that is hundreds of pages long.

Reasons for the injunctions

Although the considerations behind Rav Yehudah Hachassid’s rulings have been lost to us, several Acharonim proposed various reasons for one of his rulings, that a chosson and his father-in-law or a kallah and her mother-in-law should not share the same given name:

1) Some Acharonim maintain that the prohibitions are in order to avoid ayin hara. Due to the novelty, people would be more apt to talk about such a shidduch and cause an ayin hara (Chida, Peirush Lesefer Chassidim #477; Heishiv Moshe #19; Pri Hasadeh, vol. I, #69).

2) Others contend that if the kallah has the same name as the chosson’s mother, the chosson will be unable to fulfill the mitzvah of kibbud eim when his mother dies, since he will not be able to name a child after her (Maharil #17).

3) Another explanation is that it will cause a lack of respect towards the parents. If the chosson’s name is the same as the kallah’s father, she will inevitably use her husband’s name in her father’s presence (Even Haroshah #31).

The responsum of the Noda Biyehudah

In my earlier article, I mentioned the responsum of the Noda Biyehudah (Shu’t Even Ha’ezer II #79), who explains that the shidduchin that Rav Yehudah Hachassid discouraged are concerns only for his descendants. The Noda Biyehudah also holds that Rav Yehudah Hachassid’s concerns apply only to birth names or names given to sons at their bris, but do not apply to any name changes that take place afterwards. And most importantly, the Noda Biyehudah feels that it is more important to marry off one’s daughter to a talmid chacham than to be concerned about names.

Double whammy

The Chasam Sofer (Shu’t Even Ha’ezer, end of #116) was asked by Rav Shmuel, the av beis din of Balkan, concerning a highly scholarly and qualified bachur whose first name was the same as the father of the girl that was suggested, and whose mother carried the same name as the girl. The Chasam Sofer permitted this shidduch, providing two reasons not cited by the Noda Biyehudah:

The Gemara (Pesachim 110b) explains that sheidim, evil spirits, are concerned only about people who are afraid of them, but that someone not troubled by them will suffer no harm. The Chasam Sofer reasons that the prohibitions of Rav Yehudah Hachassid apply only to people who are concerned about them.

Other authorities accept this conclusion of the Chasam Sofer. For example, after providing an extensive discussion on all the rules of Rav Yehudah Hachassid, the Sdei Chemed (Volume 7, page 20) notes that when he assumed his position as the rav of the Crimea, he discovered that the local populace did not observe any of the rules of Rav Yehudah Hachassid. The Sdei Chemed, who himself was concerned about all of these rules, writes that he thought about mentioning these matters to his community. He subsequently decided against it, reasoning that no harm will come to someone who is not apprehensive.

Following this same approach, Rav Moshe Feinstein rules that such a shidduch should be prevented only if the couple getting married is concerned that one of them shares a name with his or her future parent-in-law. However, if the marrying couple is not disturbed about violating the rules of Rav Yehudah Hachassid, one may proceed with the marriage, even if the parents are — the concern of a parent will not bring harm upon the couple (Shu’t Igros Moshe, Even Ha’ezer 1:4). Similarly, I found a different authority who rules that when the couple makes the shidduch themselves, there is no concern for the rules of Rav Yehudah Hachassid (Sdei Chemed Volume 7, page 21, quoting Heishiv Moshe).

It is reported that someone asked the Chazon Ish regarding a shidduch where the prospective kallah had the same name as the mother of the suggested young man. The Chazon Ish asked the prospective chosson whether he was apprehensive about this. When he responded that he was not at all concerned, the Chazon Ish told him that he could proceed (Pe’er Hador, vol. IV, pg. 90).

It is interesting to note that in another instance, someone asked the Chazon Ish about a situation where the prospective chosson had the same name as the prospective kallah’s father. The Chazon Ish ruled that as long as they do not live in the same city, they could go through with the shidduch. He explained that the whole reason beyond these rulings of Rav Yehuda Hachassid is ayin hara – people should not say “Here are the two Yankels.” However, if they live in different cities, people will not talk about them (Ma’aseh Ish pg. 215).

Others, however, view Rav Yehudah Hachassid’s prohibition differently. For example, some question whether a man whose mother is deceased may marry a woman who has the same name as his late mother. It would seem that, according to most of the reasons mentioned above, one may proceed with this shidduch. Nevertheless, some authorities are opposed, which indicates that they do not accept the reasons cited above (Kaf Hachayim, Yoreh Deah 116:127).

Two versions

Returning to the responsum of the Chasam Sofer, he mentions another reason to be lenient, which requires some explanation. Regarding the concern that a mother-in-law and daughter-in-law, or a son-in-law and father-in-law not share the same name, we find that the two sources attributed to Rav Yehudah Hachassid, the Sefer Chassidim and the tzava’ah, quote different versions of the prohibition. Whereas the tzava’ah states that a man should not marry a woman whose father shares his name, and a woman should not marry a man whose mother shares her given name, the text in the Sefer Chassidim (Chapter 477) states that if a man married a woman named Rivkah whose son also married a woman named Rivkah, then the grandson (the son’s son) should not marry a girl named Rivkah. The version quoted in Sefer Chassidim seems unconcerned about a man marrying a woman who shares his mother’s name or about a woman marrying a man with her father’s name. The Chasam Sofer concludes that the tzava’ah of Rav Yehudah Hachassid should also be understood this way.

Similar to the comment of the Chasam Sofer, the Chachmas Odom (123:13) notes that Rav Yehudah Hachassid clearly meant the same in both places, and that the Sefer Chassidim is written more accurately. Therefore, these two great authorities rule that even Rav Yehudah Hachassid was never concerned about a woman marrying someone whose mother shares her name, or a man marrying a woman whose father shares his.

Other lenient reasons

Although these three authorities, the Noda Biyehudah, the Chasam Sofer and the Chachmas Odom, are basically not concerned with the commonly understood application of Rav Yehudah Hachassid’s tzava’ah, other authorities are concerned, but provide additional reasons and applications when the concerns of Rav Yehudah Hachassid do not apply. Some mention that one need not be concerned where the two parties spell their names differently, even when they pronounce the name the same way (quoted in Sdei Chemed, Volume 7, page 17). However, the Sdei Chemed (Volume 7, page 20) concludes that the spelling should make no difference: either way, one should be concerned.

Variances of the name

The Kaf Hachayim (Yoreh Deah 116:12) mentions a dispute whether there is a concern when the mother-in-law and daughter-in-law have somewhat different names. For example, may a woman named Rivkah Rachel marry a man whose mother’s name is Rachel, since their names are not identical? Some feel that this is relevant when the woman now being considered for the shidduch is called Rivkah, but does not provide any basis for lenience if, indeed, she uses Rachel regularly as part of her name. According to this opinion, if she chooses to add another name to avoid the concern of Rav Yehudah Hachassid, she should be called only by the new name (Kaf Hachayim, Yoreh Deah 116:126).

Similarly, some rule that if the son-in-law is known by two different names, some people calling him by one name and others by a different name, there is no concern if the potential father-in-law has one of these names (see Sdei Chemed Volume 7, pages 17).

On the other hand, Rav Moshe Feinstein rules there is concern only if the full given names of both the mother-in-law and daughter-in-law (or the father-in-law and son-in-law) are identical. Prevalent practice follows this approach. An example is that my rosh yeshivah Rav Yaakov Yitzchak Ruderman, was not concerned that his daughter marry Rav Shmuel Yaakov Weinberg, notwithstanding that both father-in-law and son-in-law used the named Yaakov alone as their primary name.

Different English names

Rav Moshe Feinstein rules that if the father-in-law and son-in-law (or mother-in-law and daughter-in-law) have different English names, there is no concern, even if they share identical Hebrew names.

Changing the name

Some earlier authorities suggest that the chosson or the kallah change their name or add to it. For example, when someone asked the Chasam Sofer about having his daughter marry someone who shares his name, he advised them to have the chosson change his name (Pischei Teshuvah, Even Ha’ezer 2:7, in the name of the Kerem Shlomo).

Rav Moshe Feinstein accepted this approach of the Chasam Sofer in theory. However, in a responsum on the topic, he wrote not to rely on changing the name since, at the time and place that he wrote his teshuvah, people would continue to use the original name. A name change means that the person is now called by the new name.

Stricter approaches

There are, however, other authorities who are more concerned about violating the instructions of Rav Yehudah Hachassid and challenge or ignore the above heterim (quoted in Sdei Chemed Volume 7, pages 17 ff. ; Kaf Hachayim, Yoreh Deah 116:125).

In conclusion

I leave it to the individual to discuss with his or her posek whether or not to pursue a particular shidduch because of an identical name or a different concern raised by Rav Yehudah Hachassid. Of course, we all realize that the most important factor is davening, asking Hashem to provide the appropriate shidduch quickly.

Rav Yehudah Hachassid and His Shidduchin

quill and paperAt the end of our parsha, Yaakov is sent eastward to look for a shidduch. This provides an opportunity to discuss:

Rav Yehudah Hachassid and His Shidduchin

Question #1: A Shidduch Crisis

“My husband’s name is Chayim Shelomoh, and an excellent shidduch possibility was just suggested for my daughter. However, the bachur’s name was originally Shelomoh, but as a child, he was ill and they added the name Chayim before Shelomoh. May we proceed with this shidduch?”

Question #2: Must we turn down this shidduch?

“My wife’s name is Rivkah, and we were just suggested an excellent shidduch for my son, but the girl’s name is Esther Rivkah. Must we turn down the shidduch?”

Answer:

Both of these questions relate to rules that are not based on Talmudic sources, but on the writings of Rav Yehudah Hachassid, who prohibited or advised against many potential marriages that are, otherwise, perfectly acceptable according to halachah. But before we even discuss the writings of Rav Yehudah Hachassid, let us discover who he was and why his opinion carries so much weight.

Who was Rav Yehudah Hachassid?

Well, to complicate matters a bit, there were two people in Jewish history who were called Rav Yehudah Hachassid. These two individuals lived hundreds of years apart, and, to the best of my knowledge, had no known connection to one another, other than that they were both esteemed Ashkenazic leaders in their respective generations. The Rav Yehudah Hachassid of the seventeenth century, famed as the builder of a shul in the Old City of Jerusalem, now called the churva shul, spearheaded the first “modern” effort to establish an Ashkenazi community in the holy city. Although this failed attempt had political and practical ramifications that lasted until the middle of the twentieth century, I have never heard him blamed for the blocking of a potential shidduch.

On the other hand, the much earlier Rav Yehudah Hachassid, whose writings and rulings will be discussed in this article, was a great posek and mekubal, whose halachic decisions and advice have been extensively followed by both Ashkenazim and Sefardim.

Rav Yehudah Hachassid, who was born in approximately 4910 (1150), is quoted several times in the Tosafos printed in our Gemara (for example, Tosafos, Bava Metzia 5b, s.v. Dechashid and Kesuvos 18b, s.v. Uvekulei). Rav Yehudah’s students included a number of famous rishonim who are themselves Baalei Tosafos, such as the Or Zarua, the Rokeach, the Semag, and the Sefer Haterumah.

Rav Yehudah Hachassid was the head of a select group of mekubalim called the Chassidei Ashkenaz. He authored numerous works on kabbalah and was the author of the poem Anim Zemiros, sung in many shullen at the end of Shabbos davening. Two works of his are intended for use by the common laymen, the Sefer Chassidim and the Tzavaas [the ethical will of] Rav Yehudah Hachassid, and these mention the subject of today’s article.

The tzava’ah of Rav Yehudah Hachassid

I am not going to list everything in Rav Yehudah Hachassid’s tzava’ah, but, instead, will simply cite some of the practices that he prohibits.

A man should not marry a woman who has the same name as his mother, nor should he marry a woman whose father has the same name that he has. Rav Yehudah Hachassid closes by saying: if people violated these instructions, one of the parties with the name in common should change his/her name — perhaps this will provide some hope. He does not specify what the harm is or what the hope is for.

Two mechutanim should not have the same name.

Two mechutanim should not make two shidduchim, a son with a daughter and a daughter with a son.

One should not marry one’s niece, either his brother’s daughter or his sister’s daughter.

A father and son should not marry two sisters.

Two brothers should not marry two sisters, nor should they marry a mother and her daughter.

A stepbrother and a stepsister should not marry.

Two married brothers should not live in the same city.

Before we get everyone disturbed, I will share with you that many of these relationships prohibited (or advised against) by Rav Yehudah Hachassid are not recognized as binding by later authorities. For example, the Chofetz Chayim’s first rebbitzen was his step-sister: he married the daughter of his step-father, who had already married the Chofetz Chayim’s widowed mother. Similarly, I know of numerous instances in which two brothers married two sisters, without anyone being concerned about it. And the Tzemach Tzedek of Lubavitch mentions that one need not be concerned about pursuing a shidduch in which the fathers of the chosson and the kallah have the same given name (Shu’t Tzemach Tzedek, Even Ha’ezer #143).

Selective service

In most places, the only shidduchin-related rule of Rav Yehudah Hachassid that has been accepted is that a man not marry a woman who has the same given name as his mother, nor should a woman marry a man who has the same name as her father. Why is this rule more accepted than any of the others?

Early poskim note that the custom of being concerned about this was far more widespread than concern about the other prohibitions of Rav Yehudah Hachassid. They propose several reasons to explain why this is true.

One answer is because the Arizal was also concerned about a man marrying a woman whose name is the same as his mother. Yet, there is no evidence of the Ari or other authorities being concerned regarding the other rules of Rav Yehudah Hachassid (see Shu’t Mizmor Ledavid of Rav David Pardo, #116, quoted by Sdei Chemed, Volume 7, page 17; Shu’t Divrei Chayim, Even Ha’ezer #8).

Another possible reason is that the Chida writes that he, himself, saw problems result in the marriages of people who violated this specific prohibition of Rav Yehudah Hachassid.

Rav Chayim Sanzer adds that one should be concerned about this particular practice only because klal Yisroel has accepted as custom to pass up these marriages. To quote him: If the children of Israel are not prophets, they are descended from prophets, and there is an innate understanding that these shidduchin should not be made.

The responsum of the Noda Biyehudah

No discussion of the instructions of Rav Yehudah Hachassid is complete without mentioning a responsum of the Noda Biyehudah, the rav of Prague and posek hador of the eighteenth century. The Noda Biyehudah (Shu’t Even Ha’ezer II #79) discusses the following case: A shidduch was suggested for the sister-in-law of a certain Reb Dovid, a close talmid of the Noda Biyehudah, in which the proposed chosson had once had his name changed, because of illness, to the name of the girl’s father. The Noda Biyehudah replied to Reb Dovid that generally he does not discuss questions that are not based on sources in Talmud and authorities. Nevertheless, he writes that he will break his usual rules and answer the inquiry.

First, the Noda Biyehudah points out a very important halachic principle: No talmid chacham may dispute any halachic conclusion of the Gemara, whether he chooses to be lenient or stringent, and anyone who does is not to be considered a talmid chacham. Upon this basis, the Noda Biyehudah notes that we should question the entire tzava’ah of Rav Yehudah Hachassid, since the work forbids numerous practices that run counter to rulings of the Gemara. To quote the Noda Biyehudah, “We find things in Rav Yehudah Hachassid’s tzava’ah that are almost forbidden for us to hear.” The examples the Noda Biyehudah chooses include:

One should not marry one’s sister’s daughter. However, the Gemara (Yevamos 62b) rules that it is a mitzvah to do so.

Rav Yehudah Hachassid prohibited a father and son from marrying two sisters, yet we see that the great amora Rav Papa arranged the marriage of his son to his wife’s younger sister (Kesubos 52b).

Another example is that Rav Yehudah Hachassid writes that two brothers should not marry two sisters, yet the Gemara (Berachos 44a) writes approvingly of these marriages. Furthermore, the amora, Rav Chisda, arranged for his two daughters to marry two brothers, Rami bar Chamma and Ukva bar Chamma (ibid.).

Explaining Rav Yehudah Hachassid’s concern

The Noda Biyehudah continues: “However, out of esteem for Rav Yehudah Hachassid, we must explain that in his great holiness, he realized that the shidduchin he was discouraging would all be bad for his own descendants. Therefore, Rav Yehudah Hachassid’s comments do not conflict with the Gemara, since he was writing a special ruling for individuals that should not be applied to anyone else. Therefore, Reb Dovid does not need to be concerned about his sister-in-law proceeding with this shidduch.

The Noda Biyehudah presents an additional reason why Reb Dovid does not need to be concerned: Rav Yehudah Hachassid’s concerns apply only to birth names or names given to sons at their bris, but do not apply to any name changes that take place afterwards. The Noda Biyehudah rallies proofs that adding or changing a name because of illness can only help a person and cannot hurt. In addition, the Noda Biyehudah reasons that if someone was an appropriate shidduch because of his birth name, changing or adding to his name cannot now make this shidduch prohibited.

Marry a talmid chacham

Aside from the other reasons why the Noda Biyehudah feels that this shidduch can proceed, he adds another rule: It is more important for someone to marry off his daughter to a talmid chacham, which the Gemara says is the most important thing to look for in a shidduch, than to worry oneself about names, a concern that has no source in the Gemara.

At this point, let us examine one of our opening questions:

My husband’s name is Chayim Shelomoh, and a shidduch was just suggested for my daughter of a bachur whose name was originally Shelomoh, but as a child, he was ill, and they added the name Chayim before Shelomoh. May we proceed with this shidduch?

According to the Noda Biyehudah, one may proceed with the shidduch, even if the younger Chayim Shelomoh does not qualify as a talmid chacham and even if they are descended from Rav Yehudah Hachassid, since the name Chayim was not part of his birth name.

Stricter approaches

On the other hand, there are other authorities who are more concerned about violating the instructions of Rav Yehudah Hachassid and do not mention any of the above heterim (quoted in Sdei Chemed Volume 7, pages 17- 20; Kaf Hachayim, Yoreh Deah 116:125). These authorities supply a variety of reasons why the arguments of the Noda Biyehudah do not apply. As far as the Noda Biyehudah’s statement that Rav Yehudah Hachassid could not have banned that which is expressly permitted, or even recommended, in the Gemara as a mitzvah, some respond that, although at the time of the Gemara there was no need to be concerned about the kabbalistic problems that these concerns may involve, our physical world has changed (nishtaneh hateva), and there is therefore, currently, a concern of ayin hora (quoted by Sdei Chemed page 19).

In conclusion

I leave it to the individual to discuss with his or her posek whether or not to pursue a particular shidduch because of an identical name or one of the other concerns raised by Rav Yehudah Hachassid. Of course, we all realize that the most important factor in finding a shidduch is to daven that Hashem provide the appropriate shidduch in the right time.

For the continuation of this discussion, see part II of this article.