web analytics
September 2, 2014 / 7 Elul, 5774
At a Glance

Posts Tagged ‘loss’

The Refusal To Be Comforted

Wednesday, December 5th, 2012

The deception has taken place. Joseph has been sold into slavery. His brothers have dipped his coat in blood. They bring it back to their father, saying: “Look what we have found. Do you recognize it? Is this your son’s robe or not?” Jacob recognized it and replied, “It is my son’s robe. A wild beast has devoured him. Joseph has been torn to pieces.”

We then read: “Jacob rent his clothes, put on sackcloth, and mourned his son for a long time. His sons and daughters tried to comfort him, but he refused to be comforted. He said, ‘I will go down to the grave mourning for my son’ ” (37:34-35).

Why did Jacob refuse to be comforted? A midrash gives a remarkable answer. “One can be comforted for one who is dead, but not for one who is still living.”

Jacob refused to be comforted because he had not yet given up hope that Joseph was alive. That, tragically, is the fate of those who have lost members of their family (the parents of soldiers missing in action, for example), but have no proof that they are dead. They cannot go through the normal stages of mourning because they cannot abandon the possibility that the missing person is still capable of being rescued. Their continuing anguish is a form of loyalty; to give up, to mourn, to be reconciled to loss is a kind of betrayal. In such cases, grief lacks closure. To refuse to be comforted is to refuse to give up hope.

On what basis did Jacob continue to hope? The late David Daube made a suggestion that I find convincing. The words the sons say to Jacob – “Haker na – Do you recognize this?” – have a quasi-legal connotation. Daube relates this passage to another, with which it has close linguistic parallels:

“If a man gives a donkey, an ox, a sheep or any other animal to his neighbor for safekeeping … If it [the animal] was torn to pieces by a wild animal, he shall bring the remains as evidence and he will not be required to pay for the torn animal” (Shemot 22:10-13).

The issue at stake is the extent of responsibility borne by a guardian (shomer). If the animal is lost through negligence, the guardian is at fault and must make good the loss. If there is no negligence, merely force majeure, an unavoidable, unforeseeable accident, the guardian is exempt from blame. One such case is where the loss has been caused by a wild animal. The wording in the law – “tarof yitaref – torn to pieces” – exactly parallels Jacob’s judgment in the case of Joseph: “tarof toraf Yosef – Joseph has been torn to pieces.”

We know that some such law existed prior to the giving of the Torah. Jacob himself says to Laban, whose flocks and herds have been placed in his charge, “I did not bring you animals torn by wild beasts; I bore the loss myself” (Bereishit 31:39). This implies that guardians even then were exempt from responsibility for the damage caused by wild animals. We also know that an elder brother carried a similar responsibility for the fate of a younger brother placed in his charge (i.e. when the two were alone together). That is the significance of Cain’s denial when confronted by G-d as to the fate of Abel: “Am I my brother’s guardian (shomer)?”

We now understand a series of nuances in the encounter between Jacob and his sons when they return without Joseph. Normally they would be held responsible for their younger brother’s disappearance. To avoid this, as in the case of later biblical law, they “bring the remains as evidence.” If those remains show signs of an attack by a wild animal, they must – by virtue of the law then operative – be held innocent. Their request to Jacob, “haker na,” must be construed as a legal request, meaning, “Examine the evidence.” Jacob has no alternative but to do so, and in virtue of what he has seen, acquit them.

A judge, however, may be forced to acquit someone accused of the crime because the evidence is insufficient to justify a conviction, yet he may hold lingering private doubts. So Jacob was forced to find his sons innocent, without necessarily believing what they said. Jacob did not believe it, and his refusal to be comforted shows that he was unconvinced. He continued to hope that Joseph was still alive. That hope was eventually justified. Joseph was still alive, and eventually father and son were reunited.

Laptop Liability

Friday, November 30th, 2012

“Hi, Levi,” said his friend Moshe. “I’ve got a project to work on for the next two months. By any chance, do you have a spare laptop you’re willing to lend for the duration?”

“Funny that you’re asking,” replied Levi. “I just bought a new laptop but am planning to keep the old one as a spare. If you want to borrow it for two months, that’s fine.”

“Great!” exclaimed Moshe appreciatively. “When can I come by for it?’

“I’m not home today,” said Levi, “but any time tomorrow would be fine.”

The following day, Moshe came by and picked up the laptop.

A week later, while Moshe was working in the library, Baruch came by to visit. “I see you got yourself a laptop,” Baruch said. “When did you buy it?”

“Actually it belongs to Levi, a friend of mine,” said Moshe. “I borrowed it for two months to work on the project.”

While they were talking, Baruch accidentally knocked the laptop off the table. It fell to the floor and cracked.

Moshe picked up the laptop and examined it. “It’s ruined,” he said to Baruch. “The laptop is smashed and cannot be repaired. You’ll have to pay me for the laptop.”

“It wasn’t your laptop,” said Baruch. “I don’t owe you anything. When Levi asks for his money, I’ll pay him. For all I know, he’s not going to ask you to pay, anyway.”

Moshe called Levi. “A friend of mine, Baruch, broke the laptop you loaned me,” he said.

“Although I bought a new laptop, I still want the old one,” said Levi. “You’ll have to pay for it.”

“Baruch ruined the laptop, though,” Moshe said to him. “Ask him for the money.”

“I don’t know Baruch; I have nothing to do with him,” replied Levi emphatically. “You borrowed the laptop, you are liable for it. Either pay or get the money from Baruch and give it to me.”

Levi contacted Baruch, “Levi said that I should get the money from you,” he said.

“You’re responsible for the laptop,” said Baruch. “After you pay Levi, I’ll pay you, not beforehand!”

Frustrated, Moshe went back to Levi. “Baruch refuses to pay me until I pay you,” he said, “but why I should pay if he damaged the laptop? I don’t have the money to lay out.”

“It’s not fair that you push me from one to the other,” said Levi. “My head is spinning! Let’s take it up with Rabbi Dayan.”

Levi and Moshe went to Rabbi Dayan. “Who is liable for the laptop?” asked Levi. “Moshe, who borrowed the laptop, or Baruch, who damaged it?”

“The Gemara (B.K. 111b) addresses a similar case,” replied Rabbi Dayan. “If someone steals an item and then another person comes along and consumes it, both are accountable to the owner. The thief is liable because he stole the item. Nonetheless, the item still belongs to its owner, so that the one who consumed it damaged his property. Therefore, the owner can collect from either party, or even partial payment from one and partial payment from the other. The same is true in your case.” (C.M. 361:5)

“But I didn’t steal anything here,” objected Moshe. “I didn’t do anything wrong.”

“True, but a borrower is accountable to the owner for his item, even if lost through uncontrollable circumstances (oness),” replied Rabbi Dayan. (C.M. 340:1) “Thus, you owe Levi. Still, since the laptop was Levi’s property, Baruch is also liable toward him, so that Levi can collect from either of you.”

“Can I demand payment of the laptop from Baruch now, or only Levi?” asked Moshe. “Does Levi owe me anything?”

“Because you are responsible to pay for the laptop, and Baruch caused you a direct loss (garmi) by breaking it, he has accountability to you also,” answered Rabbi Dayan. “On the other hand, let’s say Levi were to forgo payment, you would not be able to demand payment from Baruch, since he did not damage your laptop and did not cause you any loss.” (See Pischei Choshen, Geneivah 4:34)

“What about the fact that I don’t have use of the laptop to finish the project?” asked Moshe.

“The Nesivos (341:11) suggests a novel idea regarding this,” said Rabbi Dayan. “Since you borrowed the laptop for two months, you have a legal right to use the item for that time; Moshe could not demand it back until the two months were up. Therefore, the Nesivos maintains that the value of that usage, the laptop’s depreciation, is owed to you, the borrower – not Levi, the owner. This only applies, though, if the item’s nature and the duration of the loan are such that the usage entails an accruable depreciation of the item. (See Chukei Chaim – Hichos She’eilah 2:12; P.C., Pikadon 9:14)

Jewish Toy Store Owner Donates $10,000 Worth of Toys to Sandy Victims

Monday, November 26th, 2012

Toys to Discover, a Jewish-owned toy store on 18th Avenue in Borough Park gave away over $10,000 worth of toys to children affected by hurricane Sandy.

On the weekend of November 18, owner Yonasan Schwartz handed out over 600 packages of toys to Brooklyn and Long Island children whose homes were heavily damaged or destroyed by the epic storm.

In an interview with JTA, Schwartz said he “decided… to do a little sharing” after witnessing the destruction, handing out gift packages including two types of building blocks, Jewish children’s books, colorful children’s bandages, Jewish figurine toys, and kitchen play sets.  The total value of each package was approximately $150.

Schwartz told JTA he had planned to hand out 500 packages, but quickly put together another 100 after requests from Seagate and Far Rockaway showed more children were in need of some cheer.

Schwartz said he would continue to offer deep discounts to anyone coming into his store and saying they were affected by the storm.  He expressed his hope that the new toys would fill the holes in the children’s hearts left by the loss of their old toys.

The Purpose Of The Melachah

Thursday, November 22nd, 2012

The link between the laws of Shabbat and the Mishkan not only defines the 39 Melachot but also determines the conditions for liability. One of these conditions is intent. The other is purpose.

The melachah must be performed for a similar purpose as the act performed in the Mishkan. Accordingly, one might, intentionally, perform the same act performed in the Mishkan and yet be exempt from biblical liability if it did not have a similar purpose.

For example, digging (a derivative of plowing), was performed in the Mishkan for the use of the hole itself, in which tent pegs were sunk. Therefore, one who digs for earth and has no use for the hole has not performed a melachah in the Torah sense of the term, a melachah de’oreita.

Similarly, extinguishing a fire, a primary or av melachah, was performed in the Mishkan to produce glowing embers needed to smelt metal. Therefore, one who turns off the light in order to sleep, or to save electricity, has not performed a melachah de’oreita. Such an act is known as a melachah she’eina tzericha l’gufa. Although biblically exempt from liability once performed, a melachah she’eina tzericha l’gufa is rabbinically prohibited, a melachah derabbanan and should not be performed in the first place.

What is the difference between a melachah de’oreita and melachah derabbanan if both are prohibited? The answer is that generally there is more room for leniency in melachot derabbanan. For example, melachot derabbanan may, mostly, be performed during twilight, bein hashmashot, on Erev Shabbat; they may, with certain restrictions, be performed by a Jew on Shabbat to alleviate substantial pain; they may, in certain situations, be performed by a Jew on Shabbat in order to avert a substantial financial loss; they may, in certain circumstances, be performed for a Jew on Shabbat by a non-Jew; and they are not themselves subject to protective legislation.

Because the melachah she’eina tzericha l’gufa is closest to a melachah de’oreita, in that it only lacks the element of common purpose and because there is a dispute with regard to its definition, the rabbis are less lenient with it than with other melachot derabbanan. Accordingly, it enjoys some but not all of the flexibility described. For example, a melachah she’eina tzericha l’gufa may not be performed bein hashmashot. Such a melachah may, however, for the most part be performed by a Jew on Shabbat for the sick, even the not dangerously sick; and in certain situations may be performed for a Jew on Shabbat by a non- Jew.

Based on these principles, Rabbi Shlomo Zalman Braun, in his work Sha’arim Metzuyanim B’Halacha, writes that sparks ignited by plugging in or out of electricity is akin to a melachah she’eina tzericha l’gufa, in that it is a psik reishe delo neecha lei, which means an inevitable melachah arising from a permitted act that is of no use to its performer.

Accordingly, to avoid substantial financial loss one may ask a non-Jew to reconnect a well-stocked freezer that became disconnected from its electricity on Shabbat. Similarly, one may ask a non-Jew to turn off an appliance which, if left running all through Shabbat, would overheat and burn out.

Hiroshima on My Mind

Friday, November 16th, 2012

The Spokesman for the IDF is constantly announcing that the Israeli Air Force is doing pinpoint bombing in order to protect innocent civilians. Prime Minister Netanyahu also says that Israel deserves praise for the care it is taking not to injure innocent civilians.

Apparently to them, these “civilians” are “innocent” even though they house grad rocket launchers in their homes, and it’s their fathers and brothers who are doing the firing. In the meantime, we are bombing evacuated warehouses and underground tunnels, and the Gazans keep firing away, not at all worried about being hit. In the 200 plus forays our fighter bombers have made over Gaza, maybe 20 people have been killed and a couple dozen wounded. Peanuts. So the innocent civilians keep shooting away.

Whose approval are we trying to win? Has America or the United Nations applauded us on our great sense of morality and fair play? Has France or Russia? You’ve got to be kidding. In their heart of hearts, they think that we’re jerks. No one fights a war this way.

Calculations of the death-toll from the Anglo-American bombing of Dresden in February 1945 have varied widely. Figures have ranged from 35,000 through 100,000 and more. The German city of Dresden had a population of three quarters of a million people, plus hordes of anonymous refugees from the Eastern Front. It was destroyed in one night by Allied aircraft armed with more than 4,500 tons of high explosive and incendiary bombs. The devastated area amounted to around 13 square miles – not much different from the size of Gaza. The victims weren’t Nazi soldiers but innocent civilians. No one said a word.

Toward the end of World War 2, following a firebombing campaign that destroyed many Japanese cities, the Allies prepared for a costly invasion of Japan, knowing that thousands of American soldiers would be killed. To avoid this, American airmen dropped the “Little Boy” atomic bomb on the city of Hiroshima on 6 August 1945, immediately killing 66,000 innocent civilians. Then they dropped the “Fat Man” bomb over Nagasaki on 9 August, killing 40,000. Six days later, the Japanese surrendered without the loss of one American soldier in Japan. Within the first two to four months of the bombings, the acute effects killed 90,000–166,000 people in Hiroshima and 60,000–80,000 in Nagasaki. Once again, no one said a word.

If you ask me, it’s time we took a lesson from the goyim. Before even one of our soldiers steps foot in Gaza, instead of bombing vacant warehouses and tunnels, we should level a few eight-story buildings filled with “innocent civilians.” That will stops the rockets, believe me.

Melachot And Intent

Wednesday, November 14th, 2012

The juxtaposition in the Torah of the laws of Shabbat and the Mishkan, the Sanctuary, not only serves to identify the 39 melachot prohibited on Shabbat but also determines the conditions that must exist before one can be held liable for performing a melachah. One of these conditions is intent.

Like the Mishkan, melachah requires “carefully planned work” – melechet machashevet. There are various states of mind that may lack the intent necessary to perform a melachah. In some cases, such a state of mind results in one being biblically exempt from the consequences of one’s act although the act remains rabbinically prohibited. In other cases, the lack of requisite intent means the act is permissible on Shabbat in the first place.

A person who is aware of the act he is performing but forgot that today is Shabbat or that the act is prohibited on Shabbat is called a shogeg. In the Temple era, the shogeg had to bring a sin offering, a chatat, to atone for the act. A person who intended to perform a permitted act, such as retrieving a knife out of a shrub, and in so doing unwittingly performed a different act which is a melachah, such as cutting the shrub when lifting out the knife, is called a mitasek. The mitasek, unlike the shogeg, had no intention of performing the melachah and is therefore entirely exempt.

An act that is permissible in itself on Shabbat but which may – possibly but not inevitably – cause an unintended melachah to occur is called a davar she’ein mitkaven. For example, dragging a garden chair across the lawn, an act permissible in itself on Shabbat, may cause grooves to form in the earth that, if performed intentionally, would constitute the melachah of plowing. Or simply walking on the grass, which is permissible on Shabbat, may result in the uprooting or tearing of grass, which, if performed intentionally, would constitute the melachah of reaping.

Whether or not a davar she’ein mitkaven is permitted constitutes a Tannaic dispute between Rabbi Shimon, who permits it in the first place, and Rabbi Yehuda, who prohibits it. The halacha adopts the more lenient view of Rabbi Shimon. A person cannot, however, claim davar she’ein mitkaven where the melachah was an inevitable result of the permitted act.

For example, if the chair is so heavy that it must form a groove in the earth, or if one washes one’s hands (in itself a permitted act) over one’s own lawn, causing its inevitable watering (constituting the melachah of planting), one cannot claim he did not intend the melachah. This is because the result is so inevitable as to impute to one the intent to perform the melachah in the first place. Such an inevitable result is called psik reishe.

Note, however, that if the inevitable melachah arising from the permitted act is of no use to its performer, such as where one washes one’s hands over a stranger’s lawn, the act is permitted in the first place and is called a psik reishe d’lo neecha lei. Such an act, though biblically permitted, would, according to most opinions, be rabbinically prohibited, unless certain extenuating circumstances exist. Such circumstances are the threat of severe financial loss or when the performance of a mitzvah is involved.

Based on the above principals, Rabbi Moshe Feinstein permits one to open the door of a thermostat-controlled lit oven on Shabbat, even though the resulting intake of air may cause the thermostat to kick in and turn up the flame. Rav Feinstein’s reasoning is that one’s intent is merely to open the oven door. This will not inevitably result in the thermostat kicking in, and it is, therefore not in the category of psik reishe but rather a davar she’ein mitkaven. As such, it is permitted in the first place.

Sandy!

Thursday, November 8th, 2012

Hurricane Sandy ploughed through the eastern seaboard, leaving devastation in its wake: mandated evacuation, flooded houses, power outages, uprooted trees, and smashed cars. The storm also raised serious questions regarded rented properties: Does a tenant have to pay rent for the time his house was affected by the storm?

Rabbi Dayan’s yeshiva was forced to remain closed for a few days due to lack of electric power. When it reopened, the students were bursting with questions, sharing the experiences of their families, spread across the affected region.

Some felt tenants should not have to pay for the time they were unable to use the house and should even get a refund if they prepaid. Others thought they should still have to pay. The dispute raged vehemently in the class.

Rabbi Dayan quieted the students. “Circumstances vary, so that it is impossible to provide a single ruling on this complex question,” he said. “The answer depends on whether the premises were unusable because of evacuation guidelines, actual damage due to water, loss of electricity due to major shutdowns, or trees falling on individual wires. If the house was rendered completely unlivable, the tenant likely does not have to continue paying rent [C.M. 312:17]. However, even if not so, it is important to introduce the concept of makkas medina, a calamity of widespread damage.”

“Where is this concept found?” asked Aryeh.

“The Mishnah [B.M. 105b] addresses the case of a person who leased a field and the grain was devoured by locust or shriveled by an intense heat wave,” answered Rabbi Dayan. “If the devastation was makkas medina, widespread devastation, he is entitled to a deduction from the rent. However, if the plague was not widespread, he must pay the full amount.”

“What constitutes a makkas medina?” asked David.

“The Gemara defines makkas medina when the majority of fields in that plain were damaged,” replied Rabbi Dayan. “The Shulchan Aruch, citing the Rambam, writes, ‘The majority of the fields of that city’ [322:1]. The rationale appears to be that if the majority of the region was affected, we cannot attribute the loss to an individual’s misfortune; otherwise, we attribute the loss to the misfortune of the renter. In a vast city, such as New York, we might treat individual neighborhoods separately.” (See also Aruch Hashulchan 312:36: “If the whole city was burned, not literally, but there was a great fire, Heaven forbid…”)

“How much of the rent can be deducted?” asked Shlomo.

“The Mishnah does not specify,” replied Rabbi Dayan. Rama [312:17] indicates that the loss is borne completely by the landlord; some suggest that it should be shared between landlord and tenant [See SM"A 321:6]. Regardless, if one person’s fields were damaged more severely than most others, we deduct more from his rent, since the event, as a whole, is determined a makkas medina.” (SM”A 322:3)

“What about fact that the tenant didn’t cancel his rental and continued to keep his possessions there?” asked Moshe.

“This is subject to a dispute between Maharam Padua and the Rama,” said Rabbi Dayan. “Maharam Padua limits the application of makkas medina to situations where the loss is already done, such as locust. However, regarding future inability to use, the renter has the right to retract; if he doesn’t, he cannot demand to retroactively deduct from his rent. The Rama, however, disagrees. He maintains that in a makkas medina the tenant is entitled to a reduction retroactively, even if did not retract [321:1]. A number of later authorities, though, side with Maharam Padua’s opinion.” (See Pischei Choshen, Sechirus 6: 29 at length.)

“What about people who evacuated, but no actual damage occurred to the houses?” asked Ephraim.

“Ketzos [322:1] cites the case of people who fled from a city because of danger but the houses were left intact,” said Rabbi Dayan. “Maharam rules that the landlord does not have to return the full amount since the house is intact and another tenant may have chosen not to evacuate. Machaneh Ephraim also rules that in such a situation, if the rent was prepaid, the tenant is not entitled to a refund. Others dispute this point.” (See P.C., Sechirus 6: 30.)

“And what about workers who were unable to work during this time?” asked Yigal.

Printed from: http://www.jewishpress.com/judaism/halacha-hashkafa/sandy/2012/11/08/

Scan this QR code to visit this page online: