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January 22, 2017 / 24 Tevet, 5777

Posts Tagged ‘Daf’

Daf Yomi

Thursday, January 12th, 2017

For Lack Of Funds
‘Merchants in Sura Are Not in Violation of…’
(Bava Metzia 111a)

 

The Torah warns us to pay employees on time: “lo salin pe’ulas sachir itach – the wages of a worker shall not remain with you overnight” (Vayikra 19:13) and “beyomo titein secharo ve lo savo hashemesh alav – on that day shall you pay his wages, the sun shall not set upon him” (Devarim 24:15).

The Gemara (supra 100b) derives from these verses that a worker who labors by day must be paid before the rise of the following morning’s sun and a worker who labors at night must be paid before the following day’s sunset. If the employer fails to do so, he/she violates “lo salin.”

Exceptions To The Rule

Our daf cites Rabba b. Rav Huna who states that merchants in Sura are an exception to the rule because they are usually short of cash and depend on market-day shoppers for money. Therefore, there is an assumed understanding between them and their employees that they will they pay them when they have sufficient cash. This understanding is considered part of the terms of employment.

Rashi (s.v. ad loc. “meida yad’i de’al yoma d’shuka samchi”) writes that these merchants are not in violation of “lo salin” even if they fail to pay their workers later on since the prohibition only applies on the day the labor is concluded. And since there is an agreement to let that day pass without payment, there can be no violation of “lo salin” on the merchants’ part.

Payment On Demand

From the Mishnah (supra 100b) it is evident that “lo salin” can only be violated when the employee comes to collect his wages and the employer spurns his request. Therefore, according to Rashi, if the employee did not demand his wages on the day he finished working, the employer is not in violation of “lo salin.”

The Meiri (ad loc.) disagrees. He argues that “lo salin” applies to the day of payment. If the workers agree to be paid later, that prohibition applies to the agreed-upon payment day. If the employee asks for his money on that day – even if it is many weeks after he completed his work – and is spurned, the employer is in violation of “lo salin.”

A Case Of Two Workers

The Chafetz Chaim (Ahavas Chesed, Dinei Tashlumei Sechar Sachir B’zmano 10:11) discusses what an employer should do if he has two workers – one of whom did work for him on that day and the other one, the previous day – and only has money to pay one of them. The Chafetz Chaim rules, in accord with Rashi’s view, that he should pay the one who did work for him that day since his wages are due that day and if he doesn’t pay him he will violate “lo salin.” That is not the case regarding the first worker, however, because his day of payment has already passed. At this point, although the employer must pay him, he no longer violates “lo salin” each day that passes without paying him.

Rabbi Yaakov Klass

Daf Yomi

Thursday, January 5th, 2017

Must Investments Be Invested?
‘The Parts of the Iska Are Interdependent’
(Bava Metzia 105a)

 

 

The Historical Development Of The Heter Iska

A heter iska hangs at the entrance of almost every bank in Israel and is familiar to everyone there, from housewives to businessmen. A number of years ago, a local bank demonstrated its faithfulness by respecting a heter iska and cancelled half of a huge debt. A client of the Bank in the United States instructed a clerk to overdraw his current account and invest the amount in shares of stock. After a while, the stock market crashed and the client became bankrupt. Asked to pay the debt, he asserted that as the bank had signed a heter iska, he was exempt from half the debt and the bank honored his claim.

A heter iska is a commercial contract between an investor and a businessman formulated by halachic authorities over generations so that transactions performed within its framework do not infringe on the Biblical prohibition against interest. The money is given to another for a profit (as opposed to interest) guaranteed in advance. So, half the amount is given as a loan, from which the borrower takes the profits, and the other half as a deposit whose profits accrue to the investor.

Some poskim (Tzemach Tzedek, Yoreh De’ah 88; also see Chochmas Adam 143:3 and Chelkas Yaakov 3:189) maintain that a person who signs a heter iska without understanding all its clauses transgresses the interest prohibition.

 

May A Bank Account Be Overdrawn?

Our sugya explains that the borrower must not use the investment funds for his living expenses as the heter iska requires him to invest them in an enterprise to yield profits for the investor. Consequently, anyone who instructs his bank to honor regular demands for payment on the part of personal phone or credit card services or the like must apparently avoid being overdrawn as the bank charges interest accordingly.

By the same reasoning, an overdrawn client should not draw cash from his account for regular expenses as he is investing nothing and the bank will charge forbidden interest. (This refers to banks in Eretz Yisrael required by law to operate by heter iska or to Jewish-owned banks; lack of space prevents discussion of the need for heter iska for banks of mixed ownership).

Most poskim advise adding a clause to the heter iska, stating that the borrower grants the lender a percentage of the profits from all his enterprises and not only from the original funds of their deal. In our example, the borrower borrows from a bank to buy himself food but, in exchange for the loan, he grants the bank a percentage of his other investments. The withdrawal is thus no ordinary loan but an investment and the percentage of the withdrawal charged by the bank is permitted by the expanded heter iska. Furthermore, an added clause allows a drawer to grant the bank that percentage at a rate fixed in advance in exchange for his right to refuse to report his profits.

The above advice applies only to businessmen or people with a profit-yielding account. A person who is not a businessman and lacks investments must carefully examine the permissibility of borrowing from a bank as most poskim believe such loans would be halachically problematic. (Some poskim allow such loans even for those without investments under certain conditions; see Responsa Shoel Umeshiv, 1st ed. 3:160 and 3rd ed., 1:137).

Home Mortgages

This discussion is relevant to anyone applying for a home mortgage loan who has no business or profitable asset expected to cover the payments. May a home be regarded as an investment, assuming its value rises, and, if so, may the mortgager and bank be seen as partners therein, subject to the rules of heter iska? On the other hand, a home is bought to live in, not for profit, and perhaps therefore cannot be defined as an investment. Many poskim are inclined to be lenient when the economy regards buying real estate as an investment (see Toras HaRibis paragraph 16, end of section 16).

Rabbi Yaakov Klass

Daf Yomi

Thursday, December 29th, 2016

A Public Servant
‘You, Our Master, Are On Loan To Us…’
(Bava Metzia 97a)

 

Our sugya states that if a community hires a talmid chacham to teach halacha, he becomes “subject” to the community. This classification has halachic ramifications. If, for example, the talmid chacham’s students borrow something from him while he is teaching, they are exempt from paying for any damages that subsequently accrue to the item since the Torah stipulates: “If its owner is with him, he does not pay” (Shemos 22:14).

The Aruch HaShulchan (346:17) stresses that this halacha only applies while the talmid chacham is teaching. If a community’s rabbi, for example, only answers question during certain hours, his students are only be exempt from paying for damages that accrue to the borrowed item during those hours.

A Prompt Response

The Midrash (Yalkut Shimoni, Mishpatim 349) states that a rabbi is duty-bound to respond to all questions without delay. When Rabban Shimon ben Gamliel and Rabbi Yishmael were being led to their execution. Rabban Shimon ben Gamliel said, “My master, I fail to understand for what sin I am being killed.” The latter replied, “Did it never happen that someone came to ask you a question or present a claim and you made him wait until you finished drinking or putting on your sandal or donning your tallis?” The Torah says, “If you torment him…” Tormenting someone a lot or a little amounts to the same sin.” Upon absorbing Rabbi Yishmael’s answer, Rabban Shimon ben Gamliel said, “You have comforted me.”

Rabbi Moshe Feinstein, zt”l, stresses the importance of a rabbi answering questions in the preface to his Iggros Moshe, citing the Gemara (Berachos 4a), which states that even King David did so. The Gemara asks how David could declare, “For I am pious” (Tehillim 86:2) and explains that he even answered people who brought him questions about their wives’ tahor status rather than referring them to other talmidei chachamim available in Yerushalayim.

 

The Din Torah In Galanta, Hungary

A stormy din Torah took place in Hungary in the late 1800s that turned on the nature of a rabbi’s obligations to his congregants. Rabbi Shimon Friedman, the rabbi of Galanta, passed away in 5651 (1891) and his son-in-law, Rabbi Moshe Feldman, sought to take his place. Some people, though, objected, pointing to a regulation in the community charter that anyone “subject” to the congregation (i.e., appointed to a public post) may not have relatives in the community. Rabbi Feldman, though, had a brother-in-law living in town.

Rabbi Feldman’s supporters argued that he was exempt from this regulation because the chief rabbi of a city is not “subject” to his community. In fact, the opposite is true: the members of the community are subject to him and must respect his position.

Both sides to the dispute agreed to settle the issue in a beis din that was comprised of the most experienced dayanim in Hungary. Rabbi Shraga Zvi Tannenbaum (1826-1897), Chahter Rav and author of Neta Sorek, served as av beis din and, in a long and thorough dissertation, ruled that a rabbi is subject to his community to instruct them in proper behavior and admonish them when necessary.

His large volume of proof included Rashi’s comment on Yaakov Avinu’s blessing to Yissachar: “…they will pay a tax by working” (Bereishis 49:15). Rashi explains “tax by working” means “decide rulings of the Torah.” We thus see that a rabbi is called a worker. Rashi also comments on “I commanded your judges” (Devarim 1:16) by writing, “In the past you [judges] belonged to yourselves. Now you are enslaved to the public.”

As further proof, Rabbi Tannenbaum cites the custom to call people who provide religious services “rachash,” which is an acronym for rav, chazzan, and shochet. Evidently, then, a rabbi is similar to a chazzan and shochet, people who are subject to the community.

Rabbi Yosef Zvi Dushinsky (1865-1948), later chief rabbi of the Jerusalem Eidah Hacharedis, was subsequently appointed rabbi of Galanta. These and other details appear in Pesak Din Torah deGalanta.

Rabbi Yaakov Klass

Daf Yomi

Thursday, December 22nd, 2016

His Father Gave The Ring
‘What About A Worker Toasting The Produce And Eating?’
(Bava Metzia 89a)

 

A baraisa (infra 87b) teaches that a worker may snack on produce he is hired to harvest. This rule is derived from Devarim 23:25: “Ki savo b’kerem re’echa ve’achalta anavim k’nafshecha sav’echa ve’el kel’yecha lo siten – When you come into the vineyard of your fellow, you may eat grapes as you desire, to your fill, but you may not put them into your vessel.”

The baraisa explains that while the worker may eat what he is harvesting, he may not eat the produce with something else added to enhance his appetite, lest that cause him to eat even more.

The Gemara asks: What about enhancing the produce, not by adding anything to it (e.g., sugar or salt), but by toasting it over a fire? Though nothing has been added, the food becomes more appetizing with the result that the worker will be enticed to consume more than he otherwise would.

Although the Gemara doesn’t resolve this question, the Rambam (Hilchos Sechirus 12:10) rules stringently that a worker harvesting grapes may not have his children or wife toast the produce for him. The Maggid Mishneh explains that since the Gemara leaves the matter unresolved, the Rambam rules stringently because of the rule of “Hamotzi me’chavero alav l’havi ra’agah – The burden of proof is on the one who seeks payment from his fellow” (Bava Kamma 35a).

 

A Guest’s Food

Rashi (to the Gemara infra 92a s.v. “l’dideh”) explains that a worker only acquires produce he is working with after he takes hold of it to eat; beforehand he does not legally own it or have any rights to it.

The Minchas Chinuch (mitzvah 576) infers from Rashi’s words that once the worker takes hold of the produce, it is his to do with as he pleases. He may even give it to others. Tosafos (92a s.v. “iy amret”) disagrees and explains that Scripture only permits a worker that which he puts in his mouth to eat.

 

Marry Me!

The Ri’az (in his glosses to the Rif at the end of Perek Ish Mekadesh in Kiddushin) states that if a guest takes the portion of food served to him by his host and gives it to a woman to effect betrothal, the betrothal is valid. Although kiddushin may only be effected with one’s own money or items of value, the Ri’az assumes that the host has no objection to his guests using their portions of food in any manner they desire. The Maharit (vol. I:150) disagrees and questions the validity of the kiddushin. The Rema (Even HaEzer 28:17) rules that a guest may take his portion of food and betroth a woman with it.

 

 

A Son At His Father’s Table

The gaon Rabbi Moshe Sternbuch was asked (Responsa Teshuvot v’Hanhagot, vol. 3:640) whether a yeshiva bachur may effect betrothal with a ring given to him by his father. He argues that it would be best if the father gifts the ring to his son and tells him, “I am giving this to you to do with as you please.” He notes that parents generally do not make this statement, but he argues that this intention is generally understood by both parties to be present, even if it is unsaid.

Rabbi Yaakov Klass

Daf Yomi

Thursday, December 15th, 2016

Law And Order
‘R. Elazar b. R. Shimon Would Apprehend Thieves …’
(Bava Metzia 83b)

 

Our daf relates that R. Elazar b. R. Shimon, under orders from the Roman government, would apprehend thieves and other sinners and mete out punishment to them.

The Ritva (Bava Metzia ad loc.) questions the halachic basis of R. Elazar’s behavior on two counts. First, he seemingly meted out punishment on mere circumstantial evidence, without the required hasra’ah (warning). Second, R. Elazar lived after the Beth Hamikdash was destroyed and, as such, did not have the authority to impose corporal punishment.

Capital Punishment

The Gemara (Yevamos 90b) relates that under Greek rule, beis din imposed capital punishment on a man who rode his horse on Shabbos in transgression of a rabbinic injunction. The Gemara explains that although halacha does not call for such a severe punishment, Chazal are empowered to enact emergency measures, which might even include capital punishment.

The People’s Court

Based on this statement in the Gemara, the Mechaber (Choshen Mishpat 2:1) rules that even in our times, when we lack properly-ordained judges (smuchin), beis din is empowered to mete out the most severe punishment when necessary to ensure the public’s continued commitment to mitzvos. However, the Macheber says that only a leading sage or communal officers accepted by the community may impose such a punishment.

Thus, we can now understand R. Elazar’s behavior. He punished criminals, even imposing the death penalty, because he detected a general lawlessness in Jewish society.

The Ritva, however, rejects this explanation; he writes that only duly-ordained judges possess such latitude to dispense justice. If so, how do we explain R. Elazar’s behavior? The Ritva suggests that a rabbi or beis din may act as R. Elazar did if empowered to do so by the king and if it is in the public’s best interest.

Due Process

Today, however, governments (in Western countries) do not possess such latitude to dispense justice; rather, there are laws on the books and everyone is entitled to due process. As such, beis din cannot act with such latitude either.

Rabbi Yaakov Klass

Daf Yomi

Thursday, December 8th, 2016

Indeed, He Honored His Father
‘They Were Hired To Irrigate, But The River Dried Up’
(Bava Metzia 76b-77a)

 

Our daf discusses circumstances where per diem workers need not be paid, e.g., if they were hired to irrigate a field and it rained or the river feeding the irrigation dried up.

 

Factoring Travel Time?

The Gemara (Bava Metzia 83b) explains that time spent traveling from home is reckoned as part of one’s work for which one must be paid. According to Rabbi Yosef Rafael Chazan (Responsa Chikrei Lev, Choshen Mishpat 2:72), the Gemara means that if an employer promises a certain amount of remuneration for a day’s work, the payment includes the time spent traveling from home to the workplace.

A shochet once sued a community based on this halacha. The shochet lived in a different region, and the community hired him to serve as its shochet. On arriving, he demanded that his month’s pay be reckoned from the day of his departure from his home city. His employers meanwhile insisted on paying him from the day of his arrival. Rabbi Chazan defended the shochet, citing Bava Metzia 83b that employers must pay workers for the time they spend coming to their jobs.

A Father’s Stipulation

Some years ago a Jew in the Diaspora left a will in which he bequeathed his enormous library to his son – with one caveat: that he settle in Eretz Yisrael within two years of the father’s demise. Otherwise, the will stated, the library should be divided among all the children.

A Sudden Death

The son, a talmid chacham, asked acquaintances in Eretz Yisrael to aid him in attaining a suitable position as a rabbi or teacher. After finalizing all his outstanding business and personal affairs in Chutz la’Aretz, he visited Eretz Yisrael – though he had not yet secured a position – to look for a fitting home for his family. Unfortunately, in the midst of the hectic preparations, he fell ill and died suddenly. The next day a job offer arrived from Eretz Yisrael.

To whom should the father’s library now go? The son never actuality settled in Eretz Yisrael, so seemingly it should it divided among his siblings. However, Rabbi Eliezer Yehuda Waldenberg (Responsa Tzitz Eliezer 6:42 – Kuntres Orchos HaMishpatim, chapter 8) ruled it should go to the son’s children. Rabbi Waldenberg based his ruling on the decision of Rabbi Chazzan that time spent going to work is part of the job for which one must receive compensation. It’s true that the son never actually moved to Israel, but preparation for an activity is regarded as part of that activity and the son’s visit in Eretz Yisrael to find a suitable home should be regarded as the starting point of his settling there. Hence, the son, in essence, fulfilled the condition of his father’s will.

Rabbi Yaakov Klass

Daf Yomi

Thursday, December 1st, 2016

He’s A Communist!
‘If He Calls Someone A Rasha…’
(Bava Metzia 71a)

 

Our sugya teaches us that if someone calls his fellow a rasha, the insulted person may “ruin his life.” According to some commentators, the Gemara allows the insulted person to undermine his insulter’s livelihood by, for example, starting a competing business. Rashi (s.v. “yored imo…”) questions this interpretation: “It is hard for me to accept,” he writes, “that our sages allow people to take revenge or ‘get even.’”

Tosafos (s.v. “adam kore l’chavero …”) cites Teshuvas Hageonim in the name of Rav Tzadok Gaon that the insulted person may even go so far as to burn a third of the crops in his insulter’s field. Yet Tosafos too finds this sentiment very odd and questions Rav Tzadok’s reasoning. Rashi, commenting on Kiddushin 28a (s.v. “rasha yored imo…”), adheres to the literal meaning that one may “go down to his livelihood.”

 

Insinuating Transgression

Some commentators point out that the Gemara (Kiddushin, ibid.) mentions similar halachos: 1) A person who calls another a slave is punished with niduy (a form of excommunication) and 2) a person who calls another a mamzer is flogged. What is the reasoning behind these two halchos? By calling another a slave, a person includes himself in the Torah’s damnation, “Cursed is Canaan” (Bereishis 9:25), and therefore is placed under the curse of excommunication. As for a person who calls another a mamzer: He hints that the targeted person intends to sin (or has already done so) by pretending not to be a mamzer in order to marry a proper Jew. The one who insults him is therefore flogged as though he himself transgressed this prohibition.

In light of the reasoning behind these two halachos, let us return to our case: A person who calls another a rasha causes him considerable harm. The Torah stares, “If your brother becomes poor… support him” (Vayikra 25:35). Our Sages teach us that excluded from this mitzvah is a rasha, who does not deserve support. Therefore, a person who calls another a rasha in public is causing others not to support him. That is why the insulted person may undermine the livelihood of his insulter (Nimukei Rabbi Menachem meReseburk, s.v. “din hakorei”; Shittah Mekubbetzes in the name of Rabbi Yonasan).

However, a person is not allowed to undermine the livelihood of one who calls him a rasha in a casual manner (perhaps in the heat of an argument). He may only do so to a person who spreads rumors in a malicious manner, seemingly in rebellion to the Torah.

 

Long Ago

About 450 years ago, two people had a vehement argument. One of them called the other a slave, and the insulted person asked a beis din to flog his detractor, as taught in the Gemara. The question was sent to Rabbi David ben Shlomo ibn Zimra (Responsa Radbaz 3:480) who replied that as people ascribe little importance to curses voiced in arguments, they do not harm one’s reputation and are not covered by the Gemara’s discussion.

The Radbaz concludes, though, that “the one who insults should be shamed verbally and warned to desist from calling another such a name…even if the other starts the argument.”

A person who makes it a regular practice of calling others derogatory names should suffer excommunication if the names are those mentioned in the Gemara. The Maharam Galanti (Responsa 33), therefore, rules that a beis din should not flog someone who calls another Salak-el-din (apparently a reference to Saladin, the Muslim warrior who conquered Eretz Yisrael from the Crusaders) even though the one so dubbed is deeply hurt. He is, however, “regarded as one of the derisive scoffers who do not meet the Shechinah.

A Slap On The Cheek

A similar question was referred to HaGaon Rabbi Moshe Feinstein, zt”l, in the McCarthy era when hatred for communism engulfed the United States. People suspected of having communist links had their reputations ruined and anyone so accused was very insulted. One such person asked Rabbi Feinstein if he could undermine his insulter’s livelihood. Rabbi Feinstein replied that “communist” is not synonymous with rasha (Igros Moshe, Choshen Mishpat 1:38) and one who forces his ideas on others in a communist fashion is not necessarily a sinner. Rabbi Feinstein also cited Rashi’s comment (on our daf) that there is no explicit permission to undermine the livelihood of one who calls another rasha.

In conclusion, we note the explanation of some commentators that “yored lechayav,” usually understood as “ruining his life,” actually means that the insulted person may slap the cheek of the one who insulted him: “lechayav – his cheeks” (see Tashbetz, Responsa 3:204).

Rabbi Yaakov Klass

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