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April 19, 2014 / 19 Nisan, 5774
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Posts Tagged ‘Choshen Mishpat’

Preempting The Death Penalty

Wednesday, July 18th, 2012

In this week’s parshah the Torah writes about a prohibition on killing a murderer prior to his trial. As the pasuk says: “…v’lo yamus harotzeach ad amdo lifnei haeidah lamishpat – … so that the murderer will not die until he stands before the assembly for judgment” (Bamidbar 35:12). The same rule applies to anyone who commits an aveirah that is punishable by death; no one is permitted to kill him prior to his trial in beis din, including the witnesses that warned him and witnessed the aveirah. The Sefer Hachinuch (mitzvah 409) writes that if one kills a transgressor prior to his trial, he is regarded as a murderer.

Anyone who performs any aveirah l’hachis (a transgression to spite Hashem, not because of temptation) is rendered a mummar l’kol haTorah. The Rosh (Moed Katan 3:59) says that one who is warned by two witnesses that the action he is about to perform is prohibited and punishable by death and responds that he will commit the aveirah despite the warning, attains the status of a mummar l’hachis. The reason is this: one performing the aveirah because of temptation would not do so after being warned that his life is on the line. Rather, we can assume that he is acting to spite Hashem.

Reb Chaim Ozer Grodzensky (Achiezer 3:53) writes that he discussed the following question with his wife’s grandfather, Reb Yisroel Salanter, the gaon ohr yisrael: the Gemara (Avodah Zarah 26b) says that one may kill a mummar l’hachis. (This is brought down in several places by the Rambam, including Rotzeach 4:10, and in the Shulchan Aruch, Choshen Mishpat 425:5.) This is known as “moridin v’eino malin – throw him into a pit and do not save him.” The view of both the Rambam and the Shulchan Aruch is that if possible one should publicly kill the mummar with a sword. The Rosh (Teshuvos 32:4) says that one should only kill via a gramma (indirectly), i.e., throw him into a pit and remove the ladder.

Question: How can the Torah say that we cannot kill a murderer or any transgressor until after his trial in beis din, despite the fact that he was warned in front of witnesses? After all, according to the Rosh the transgressor has the status of a mummar l’hachis (since he is not acting out of temptation), thereby permitting anyone to kill him as per the halacha of moridin v’eino malin.

Reb Chaim Ozer suggested two answers, but believed that the question demands more analysis. His first suggestion is that the pasuk is teaching us that although one is permitted to kill the individual who sinned by means of moridin, the Torah nevertheless prohibited killing him in this case until after his trial in beis din. However, Reb Chaim Ozer rejects this answer for several reasons. One reason: Why does the Chinuch say that one who kills the sinner is regarded as a murderer? Since he could kill him from the halacha of moridin, he should not be considered a murderer. The Chazon Ish (Yoreh De’ah 2:17) maintains that the halacha of moridin only applies when the sinner cannot be tried in beis din due to technical problems, i.e., no witnesses. Therefore, in a case to be brought in beis din one may not apply the halacha of moridin.

The second solution is that the pasuk is referring to a scenario in which we know that the individual did teshuvah. Therefore he can no longer be killed under the halacha of moridin. However, teshuvah does not remove the death penalty from beis din. Hence, the Torah says that we should wait until he is found guilty at trial before killing him.

I would like to suggest that the question does not start. I was scared to say that I learned the Rosh differently than Reb Chaim Ozer and Reb Yisroel Salanter. But, Baruch Hashem, I found afterwards that the Chazon Ish (Yoreh De’ah 2:12) learns the Rosh as I did. I believe that the Rosh is being taken out of context. The Rosh is discussing the Mishnah that says that there is no aveilus for people who are killed by beis din. The Rosh explains that this is because since they were warned that their life was on the line but nevertheless sinned, they are obviously not acting out of temptation; thus, they are comparable to a mummar l’hachis. I think that the Rosh never meant to say that anyone who transgresses after being warned is a mummar l’hachis regarding the halacha of moridin; rather the Rosh is saying that regarding aveilus we consider him a mummar, comparable to a mummar l’hachis – whereby aveilus does not apply.

Overcharging

Wednesday, May 16th, 2012

In Behar, one of this week’s parshiyos, the Torah commands us in regard to some of the laws of buying and selling. The pasuk says, “Vechi simkiru mimkar la’amisecha … al tonu ish es achiv – When you make a sale to your fellow … do not afflict one another.” The Gemara in Baba Metzia 51a derives from this pasuk that one may not overcharge when selling an item without informing the buyer. This is referred to as ona’ah. The Gemara says that if one charges more than a sixth more than the market value of an item, the sale is void. If one charges less than a sixth more, the sale is valid. If one charges exactly a sixth more, the sale is valid; however, the seller must return the overcharge.

The Rush, in the fourth perek of Baba Metzia, says that he is not sure whether one is prohibited from intentionally charging less than a sixth more than the market value. Even though the sale is valid and the seller does not have to return the overcharge, perhaps it is prohibited – for this too is considered ona’ah. The reason that the sale is valid and the seller may keep the overcharge is because we assume that the buyer will be mochel (forgo) on a small percentage. The Smah (Choshen Mishpat 227:14) says that one may not claim that he was not willing to forgo the overcharge of less than a sixth. Or, says the Rush, perhaps it is part of the normal process of transactions to charge a little more – and it is not considered ona’ah.

The Ramban, in his commentary on the Torah, says that even though the Gemara in Baba Metzia 56b derives from a pasuk that ona’ah does not apply to land, the prohibition nevertheless applies. The exclusion is only on the monetary aspect, but if one charges more than a sixth for the sale of land he will have transgressed the lav. The reason that one does not have to return the ona’ah of a real estate purchase, even if it is more than a sixth extra, is because we assume that people will forgo the extra amount – just as they would when it is less than a sixth on the sale of an item. However, in both circumstances, it is forbidden to do so.

The Sefer Hachinuch (mitzvah 337) takes a different view on this matter. He says that one is completely permitted to charge up to a sixth more than the market value of movable objects. He agrees with the Ramban that even though one does not have to return the extra amount that he charged for real estate, even if it exceeds a sixth, it is nonetheless forbidden to do so.

The Minchas Chinuch says that the Rambam agrees with the Sefer Hachinuch (that one is permitted to charge up to a sixth more for movable objects). He proves the Rambam’s view that it is permitted because the Rambam says that one does not receive lashes when he transgresses this prohibition. This is because it is nitein letashlumin (one must repay) i.e. he must return the overcharge. Since the halacha is that one is not required to return an overcharge of up to a sixth, he should receive lashes in that case since it is not returnable.

We find this concept by the prohibition of hitting another. If the wound is significant enough to require damages amounting to more than a prutah, the damager does not receive lashes since he must pay money. However, if the wound does not amount to damages worth a prutah he receives lashes since he cannot repay. Therefore, if it would be prohibited to charge up to a sixth more, the seller should receive lashes since he is not required to repay.

The Minchas Chinuch, however, says that this is not necessarily proof that the Rambam’s view is that one is permitted to charge up to a sixth more than the value of movable objects. This is so because, as mentioned earlier, the reason that one is not required to return the ona’ah of up to a sixth is because the buyer is mochel the extra amount. Hence, from a technical standpoint, one is required to return the extra amount – except that in this case he was mochel the obligation.

My Machberes

Wednesday, May 9th, 2012

Mikveh Magic

In contrast to the reported 1,500 mikvehs in Israel, the United States has approximately 300. Interestingly, a good number of mikvehs in America date back more than one hundred years.

The first mikveh built in what is today the continental United States was that of Congregation Shearith Israel in approximately 1655 in lower Manhattan (then New Amsterdam). Rabbi David and Tamar De Sola Pool, in their An Old Faith in the New World (Portrait of Shearith Israel 1654-1954), write that “In the early days, it was the synagogue alone which had the ritual bath to which the Jewish woman could go.” The authors note the kehilla in 1791 was making use of five buildings, one of which was the ritual bath.

Presently in Israel, the Vaad Hamikvaos, literally the “Committee on Mikvehs,” oversees the design, construction, and maintenance of mikvehs. The Vaad, under the direction and scrutiny of universally acknowledged Torah giants in Israel, is staffed by eighteen kollel members who devote themselves exclusively to the study and implementation of hilchos mikvaos.

The disparity between the number of mikvehs in Israel and the United States is discomforting. Traveling long distances to use a mikveh, though accepted in America as a fact of life for those who live outside major Jewish population centers, is just not tolerated in Israel. Every community in Israel with observant Jews – even communities populated by “traditional” Jews – strives for and demands to have a kosher mikveh within reasonable walking distance.

The kashrus of older mikvehs, such as those found outside the Jewish population centers in the U.S., are assumed kosher in accordance with poskim such as the Rosh and the Rema, who maintain that mikvehs are built only by those who have expertise.

However, the Satmar Rav, zt”l, in his Divrei Yoel, suggested that principle is not applicable in the U.S. since individuals not proficient in the relevant laws could easily have played significant roles in the building of mikvehs here. And with the passing of time (sometimes a century or more), the maintenance and repair of mikvehs may well have become the province of local handymen unfamiliar with hilchos mikvaos.

Mikveh Discussions, 1920

As an interesting footnote to this discussion, I searched through my library and found a rare copy of a Yiddish pamphlet titled Mikveh Yisrael, published in about 1920 (available on hebrewbooks.org), authored by Rabbi Dovid Miller, zt”l (1869-1939), then residing in Oakland, California. Ordained by leading European rabbis, including Rabbi Isaac Elchanan Spector, zt”l (1817-1896), chief rabbi of Kovno and author of Be’er Yitzchok, Rabbi Miller came to this country in around 1890 and served as rav at congregations in New York City and Providence, Rhode Island, and later resided in California.

The learned and innovative author recommends, and provides detailed plans on, building home mikvehs with what might well be called Yankee ingenuity. In a space slightly larger than two feet wide, four feet long and four feet high, a mikveh, according to the author, can easily and discreetly be built in a bathroom or closet, in a basement or on a high-rise floor. All necessary supplies are listed and specific instructions on how to fill the mikveh are furnished, as well as instructions on how to release the water from the homemade mikveh.

Home mikveh blueprint

The author felt that with the immediate availability of home mikvah use, Jewish marital laws would be more widely and more carefully observed. Modesty would be maintained by keeping mikveh use private. The cost of building such a mikveh would be inexpensive, giving every family the opportunity to have its own in-home mikveh.

The concept received written approbations from Rabbi Sholom Elchanan Yaffe, zt”l (1858-1923), rav of Beis Medrash Hagadol of New York and a leading scholar; Rabbi Gavriel Zev (Wolf) Margolis, zt”l (1848-1935), chief rabbi of Boston and later a rav in New York City; and Rabbi Zvi Shimon Elbaum, zt”l, a rav in Chicago.

In addition, the author describes a meeting at the Chicago home of Rabbi Elbaum at the time he received the written approbation. On that occasion, he writes, he also obtained the consent of Rabbi Sholom Mordechai Silver, zt”l (d. 1925) of Minneapolis, Rabbi Horowitz of St. Paul, Rabbi Deidtzik of Des Moines, Iowa, and Rabbi Kordon of Chicago.

The idea was great. There was, however, a “catch” – namely, the question of using tap water. The author maintained that city tap water comes from reservoirs fed by rivers and/or springs and is therefore acceptable for use in a mikveh. Despite the approbations he received from the aforementioned great scholars, the author’s proposal was not accepted by the overwhelming majority of poskim of the time, nor by those of subsequent generations.

Q & A: Ayin Hara (Part I)

Thursday, November 24th, 2011

Question: I know there is a dispute in the Gemara regarding ayin hara, the evil eye. Can you discuss the origin of it?

Ben Glassman

(Via E-Mail)

The Halacha: The Mechaber (Choshen Mishpat 267:18) rules: “If one found a wool garment he is to shake it once in 30 days [as long as it is in his safekeeping pending its eventual return to its rightful owner], but he should not shake it by means of a stick [i.e. by hitting it] nor should it be done with two people holding it. He should spread it on a bed only for its own need but not for its need and his need. Should he happen to have guests, he should not spread it, even for its own need, for perhaps it will be stolen.”

The Discussion: The above halacha is based on a mishnah (Bava Metzia 29b). The mishnah states: If one found a garment, he should shake it once in 30 days. He should shake it for its own need but not for his honor (benefiting from both its beauty and utility – to use it as a bedspread or even a wall hanging). The Gemara (infra 30a) states that if shaking it helps the garment and him at the same time, it is permitted. Indeed, the Gemara notes that if he spreads it on a bed or on a frame, it is prohibited if he does so solely for his own need but permitted if he does so for its need (in order that it be aired out properly). However, if houseguests arrive, it is prohibited because of ayin hara or possible theft.

The Rambam (Hilchot Gezela v’Aveidah 13:11) codifies this halacha and explains that someone who finds a lost object is required to examine it in order that it not become destroyed due to lack of use, as the verse states in Parshat Ki Teitzei (Deuteronomy 22:2): “Ve’im lo karov achicha elecha velo yedato va’asafto el toch beitecha ve’haya imcha ad drosh achicha oto va’hashevoto lo – If your brother is not near you and unknown to you, then you are to gather it into your house and it shall remain with you until your brother inquires after it and you return it to him.” It states “and you return it to him,” which means take care of it and keep it in returnable condition. How so? If one found a garment of wool, he should shake it once every 30 days but not with a stick nor together with someone else. He may place it on a bed for its need but not for its need and his need. If houseguests arrive he is not to spread it out before them lest it be stolen.

We see that both the Rambam and the Mechaber cite only the Gemara’s second reason – fear of theft – and make no mention of the Gemara’s first reason – fear of the evil eye.

The Aruch Hashulchan (Choshen Mishpat, Hilchos Hashavat Aveidah 267:11) similarly cites the halacha, but he adds that the founder may leave it spread out when guests come if he knows they are people of integrity since there is no concern for theft or an evil eye. Thus, we see that an evil eye is perhaps a matter of concern.

Indeed, the Bach to the Tur (C.M. ad loc.) explains that the Rambam and the Mechaber only mention theft and not ayin hara because the former concern is easier for the general populace to understand. (The Rif and the Rosh mention both reasons of the Gemara in their codification of the halacha.)

Emphasizing Honesty And Integrity During The Days Of Awe

Tuesday, September 7th, 2010

Have you ever wondered why Avraham was the first patriarch of the Jewish people? Probably not; the reason is so obvious. We have grown up hearing the stories of the young boy Avram, who questioned the irrational idolatry of his time. We have followed him on his journey of discovery; how he investigated nature, science, each mode of worship – and logically arrived at the conclusion that there has to be One Omnipotent Creator responsible for our existence.

We are amused and impressed by his cleverness when he accuses the largest idol in his father’s store of smashing the others, clearly displaying the folly of stone and wooden gods. We are in awe of his bravery when he stands up to Nimrod, proud to step into the fiery furnace in defense of his convictions. And we are overjoyed when he miraculously steps out unscathed.

Avraham is our patriarch because he is a unique man among men who started a monotheistic revolution. He had no precedent, no teacher, no role model, no mentor, not even direct confirmation from Hashem Himself. All he had was a partner, Sarah, and together they defied an entire generation and brought the knowledge of, and belief in, One God to the masses. Advertisement

Interestingly, this history of Avraham’s revolution, of his passion to teach monotheism to the world, is recorded in the Midrash, but not in the Chumash. The story the Torah tells us about Avraham’s life begins long after his search for God; it begins with Lech Lecha, Hashem’s first communication with Avraham, when God actually sends Avraham away from the place where he is doing some of his best work.

If the Torah does not record Avraham’s struggle to find God, what does it tell us about his mission? The Torah states (Parashat Vayeira 18:19): “Ki yedativ lema’an asher yetzaveh et banav v’et beito acharav veshamru derech Hashem la’asot tzedakah umishpat” – “For I know him, in order that he will command his children and his household after him to keep the ways of Hashem, to do righteousness and justice in the land.”

While not discounting or downplaying the importance of Avraham’s monotheistic legacy, the Torah paints a different picture of Avraham’s mission to humanity. God chose Avraham, not only because Avraham chose God but because Avraham chose to live a Godly life, a life whose cornerstone was tzedakah umishpat, a life that defines Godliness not only by the way we interact with God but by the way we interact with others.

To teach people that the authentic God exists is an admirable and worthy mission. But the Torah is telling us the reason Avraham was chosen to be our patriarch was because he taught people to bring God’s righteousness and justice into their relationships with others.

Consider halacha, Jewish law; it is our directive for how to live our lives. The Shulchan Aruch, the magnum opus that codifies halacha, is composed of four sections, and the largest of the four is Choshen Mishpat.

Choshen Mishpat is not about Shabbat, or the holidays, or prayer, or Torah study. The largest section of Jewish law is about how we treat our fellow human beings in our business dealings. It is about how we treat our employees and how we market our goods. It is about “ha’poel tzarich la’avod b’kol kocho,” that an employee is obligated to give his all at a job, even if his predecessor wasn’t as capable and the expectations are not as high. It is about ona’at mamon, having an obligation to price fairly and not assume that caveat emptor, buyer beware, is an acceptable motto. It is about ona’at devarim, shopping with the intention of buying, and not wasting the time and abusing the knowledge of a worker when there is no intention to transact a sale.

To conduct business in a halachic manner, one must be very knowledgeable in Choshen Mishpat, and that requires diligent study.

One of the themes we focus on during the davening of the High Holidays is that of zechut avot, the merits of our Patriarchs. We invoke the great sacrifices of Avraham, and beg Hashem to let his sacrifices be a merit for us, his descendants. But the real question is, are we worthy descendants of Avraham? Have we recognized and continued his great mission of spreading tzedakah umishpat throughout the land?

A Shoe, Handkerchief, and Pen

Wednesday, June 17th, 2009

What do a shoe, handkerchief, and pen have in common? For English buffs, they all contain an “e.”

Let’s try in Hebrew: What do na’al, sudar, andeit have in common? They all begin in alphabetical order: Nun, Samach, and Ayin. OK, but better…. in Choshen Mishpat, these are the classic items for “Kinyan Chalipin.”

A fundamental principle of Jewish monetary law is that a transaction must be accompanied by kinyan, an act of acquisitionto be valid. Verbal arrangements, while they should be upheld, are usually not enforceable as binding transactions. (There are a few exceptions, most notably charity pledges.) Even payment does not always make a transaction legally enforceable if not accompanied by an appropriate kinyan.

There are many different acts of kinyan that relate to different kinds of transactions, as described in the first chapter of Maseches Kiddushin. For example, small movable items, such as books, are acquired by raising (Hagba’ha), large items such as furniture by dragging (Meshichah), and real estate through payment, contract or taking possession (Kesef, Sh’tar or Chazakah). Perhaps the most versatile kinyan, which works for both movable items and real estate, and also to create personal obligations and debt, is Kinyan Chalipin.

Towards the end of Megillas Ruth, which we read on Shavuos, Boaz took off his shoe to acquire rights to Ruth. This act smacks of Yibbum, particularly in the context of reestablishing the household of the deceased relative. However the verse clearly is not dealing with Yibbum, but rather with the transfer of legal rights: “Formerly this was done in Israel in cases of … exchange transactions to validate any matter: One would draw off his shoe and give it to the other” (Ruth 4:7).

Handing over a shoe or other functional item (k’li) symbolizes an exchange, chalipin, and expresses full intention of the parties for the transaction. Boaz handed over his shoe to Ploni Almoni (usually understood as Mr. So-and-so), and received from him, in exchange, the legal rights to redeem the fields and take Ruth.

This was commonly done to validate any transaction; the buyer would hand the seller an item as chalipin, a symbolic exchange. It was a quick and easy means of making transactions and agreements immediately enforceable and legally binding.

Consider the following scenario: Shmuel and Rina were engaged and shopping for furniture to outfit their apartment. Some stores were too expensive and others weren’t quite their taste. At Frankel’s Furniture they finally found a bedroom set that was just what they wanted. Because it was a display item they received a 35% discount, making it affordable. They paid for the item and received a sales invoice, with delivery slated for three days, and went happily along their way.

According to the classic rules of Kinyan this sale is not yet finalized! Neither payment nor a contract is a valid act of kinyan for movable items, only picking up or dragging them. Both sides still have the legal right to renege, although they are strongly discouraged from doing so. However, if Shmuel were to hand his pen to Mr. Frankel as Kinyan Chalipin, the sale would be finalized and the bedroom set would be theirs, with no possibility of reneging.

In practice, Halachah validates sales completed in the prevailing customary business manner, based on Kinyan Situmta (to be discussed at some later date, IY”H). Thus, nowadays, after paying and completing the sales invoice in the customary manner, it would not be possible to renege, unless the prevalent practice allows returns.

During the time of Ruth, the favored item of chalipin was a shoe. In the Gemara, the shoe gave way to the sudar, a cloth or handkerchief. It is not even necessary for the seller to take the entire cloth from the buyer, but to grasp a significant portion of it (3×3 inches) and then return it. In recent decades, as handkerchiefs gave way to insignificant paper tissues, the ever-available pen is typically used to perform Kinyan Chalipin.

With decreased awareness of Jewish monetary law and the standardization of commercial practices, Kinyan Chalipin is rarely used in day-to-day business transactions and is mostly utilized in halachic transactions. Thus, we usually encounter Kinyan Chalipin when selling chametz, writing the kesubah at weddings, accepting binding arbitration in beis din, and preparing a halachically valid will (to be discussed next month, IY”H). The concept of Kinyan and the effectiveness of Kinyan Chalipin are also important foundations for future discussions.

With the world going paperless, pens are also going out of vogue. The up-and-coming item for Chalipin is … a cell phone. English buffs – no worry; it also has an “e.” Hebrew lovers, no worry – it also begins with the next letter, peh – pelephone!

Rabbi Meir Orlian is a halachah writer for Machon L’Choshen Mishpat. The Machon, which is headed by HaRav Chaim Kohn, is committed to providing awareness, education and services in all areas of monetary issues that arise in our daily lives. For more information visit www.machonmishpat.com

Printed from: http://www.jewishpress.com/judaism/halacha-hashkafa/a-shoe-handkerchief-and-pen-2/2009/06/17/

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