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October 26, 2016 / 24 Tishri, 5777

Posts Tagged ‘loss’

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.

Raphael Grunfeld


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.

Rabbi Meir Orlian

Are We Better Than The Residents Of Sedom?

Friday, November 2nd, 2012

We learn in this week’s parshah about the wickedness and demise of the residents of Sedom. Further, we learn from medrashim that the residents of Sedom did not show much hospitality. Similarly, the mishnah in Avos 5:10 says that there are four different types of middos that people live by. The first is one who says, “What is mine is mine and what is yours is yours.” The mishnah says that this is an intermediate middah; others say that this is middas Sedom. Rashi, in Kesubos 103a, says that the people in Sedom would not allow anyone to benefit from their possessions even if it would be of no loss to them.

Surely we are all familiar with the wickedness that is associated with the people of Sedom, and none of us would consider ourselves to be among the people of Sedom. However, there are certain interesting scenarios whereby the halacha is influenced by the concept of not being like the people of Sedom. This is known as “kofin al middas Sedom – we force one not to act like the people of Sedom.”

Here is one example: The Gemara in Baba Kama 20a discusses the situation when one lived in another person’s vacant home that would not have been rented. The Gemara discusses whether he is exempt from paying the owner for his stay. The Gemara says that the reason that he would be exempt is because the squatter can say to the owner, “you did not take a loss from the fact that I [the squatter] lived in your house.” This halacha applies even if the squatter would have otherwise rented another place had he not stayed in this house free of charge. This is called “zeh neheneh, v’zeh lo chaser – this one benefited, and this one did not lose.” This is a matter of dispute in the Gemara; the conclusion is that the squatter is exempt.

To make this a bit more applicable, let’s say one broke into and stayed in your summer home in the winter when you were not there. He would be exempt from paying you any rent since you would not have otherwise rented your house and there is no loss to you. Most Rishonim say, however, that one has the right to deny someone else access to his vacant home. The discussion in the Gemara only concerns one who has already lived in the house.

The P’nei Yehoshua learns that the reason for this is because of “kofin al middas Sedom.” Since you did not suffer any loss, even though someone else benefited from your belongings, the beneficiary is exempt from paying you for his gain. But if there is any loss to you, even a minor loss such as the walls having become blackened, the squatter is liable to pay all of the rent.

The Gemara also says that if the squatter would have otherwise rented another apartment and you would have otherwise rented your house, he is liable to pay rent. This is referred to as “zeh neheneh, v’zeh chaser – this one benefited and this one lost.”

The Gemara does not discuss, however, the scenario whereby you would have rented out the house but the squatter would not have rented another house, i.e. he has another place to stay. This circumstance is a dispute among the Rishonim. The Rif says that he is liable; Tosafos says that he is exempt because he did not derive any monetary benefit. The loss that the owner incurred is not a direct damage from the squatter, and he is therefore exempt.

The Acharonim are bothered by the following question: according to Tosafos’s view the squatter is exempt when there is a loss to the owner had he not rented another apartment. Why then should he pay for the rent when he would have rented another apartment? He should not pay for the benefit just as he is exempt when the owner would have not rented it out. Additionally, he should not pay for the owner’s loss of rent because, as Tosafos explained, it is an indirect damage.

The P’nei Yehoshua explains that the reason why one is exempt from paying the owner when he derives a monetary benefit at no cost to the owner is because we force the owner to not act like the people of Sedom. However, when the owner endures a loss, we cannot apply this concept because he has the right to be compensated for having incurred a loss. Therefore, when a loss is involved, the squatter must compensate the owner if he derived a monetary benefit from the owner’s possessions.

Rabbi Raphael Fuchs

Israeli Teen’s Organs Save the Lives of Six People

Monday, October 15th, 2012

Nine organs donated by the family of a 16 year old Israeli athlete have saved the lives of 6 people, providing some comfort to a family heartbroken by the loss of their son.

Gilad Veturi, a student at Ilan Ramon High School in Hod Hasharon collapsed Thursday during sprinting practice and died two days later.

According to Israel Transplant, Venturi’s heart was donated by his family to a 56 year old man, his lungs were transplanted into two men aged 63 and 67, his liver was given to a 64 year old woman, a kidney and his pancreas were given to a 36 year old woman, and his other kidney went to a 24 year old woman.  Veturi’s corneas will be transplanted later.

Malkah Fleisher

Sherri Mandell: The Blessing Of A Broken Heart

Friday, October 5th, 2012

How can one fathom the depths of a mother’s pain upon the brutal loss of her child? Sherri Mandell’s first-born son was viciously murdered near their home on May 8, 2001. How does a mother cope with the news that her spirited thirteen-year-old, while hiking in the neighborhood, was bludgeoned to death by rock-yielding Arabs?

The Blessing of a Broken Heart is the title of Sherri Mandell’s amazing book in which she depicts the process of her coping, of her determination to choose hope and faith over despair and hate. In it Sherri reveals how she struggled to embark on a journey of faith, identifying her agony in the context of 3,000 years of Jewish suffering.

Tekoa, in the Judean Hills, where the Mandell family lives, is 2,177 feet above sea level on a ridge surrounded on three sides by a deep canyon studded by caves. It was one of these caves that Koby and his friend Yosef Ishran went to explore. And it was this cave that became the scene of devastating evil.

Sherri and her husband, Rabbi Seth Mandell, confronted their heartbreak with a conscious decision to transform cruelty into kindness. They created the Koby Mandell Foundation which provides healing programs for families struck by terrorism, allowing them to overcome the isolation that keeps them from returning to life. Participants are helped to find meaning in their loss, so that families become stronger from their traumas. In this way, they keep Koby’s spirit alive.

A New Yorker, with an M.A. in creative writing from Colorado State University, Sherri Lederman visited Israel for the first time in 1984. In Jerusalem she met Seth Mandell, a personable, intelligent yeshiva student. The two were married a year later and made their home in the Holy City where Sherri taught English and creative writing at the Michlalah College.

In 1996, after a short stint in the United States, Sherri and her rabbi husband returned to Israel, the land they loved deeply, with Judaism in the center of their family’s lives. Besides The Blessing of Broken Heart, she authored Writers of the Holocaust, (Facts on File, 2000) and has written for numerous magazines and journals, including The Washington Post, Denver Post and The Jerusalem Post. In addition, she is now director of The Koby Mandell Foundation’s numerous projects, among them the Women’s Healing Retreats for Bereaved Mothers and Widows. The expanse of this column does not accommodate the entire list of offerings of the foundation. I wish merely to mention a unique all-expenses-paid sleepover camp for more than 400 children who have lost loved ones.

One camper explains: “One of the amazing things about Camp Koby is that you are together with other kids who have similar stories. It doesn’t only give us a safe place to be together, but it also gives us a chance to grow outside of camp.”

Camp Koby Sleepaway Camps are fun-filled, six-week summer experiences, an intense and meaningful opportunity for recovery and healing process. In the camps kids have a great time and feel free to express their feelings – both to other children who experienced a similar loss and to Israeli and American counselors who are trained to really understand. In addition to regular activities, therapeutic programs are offered to help the campers cope with the trauma and other emotional issues associated with their tragedy. In addition to Israeli children who are campers, teens from around North America participate as counselors. “I wasn’t looking for a regular summer in Israel; I was looking to give back,” said a15-year-old from Woodmere, New York. “These amazing campers taught me that even if something terrible happens, it is still possible to move on and be happy. I became so connected with them – it changed me as a person.”

I must admit, it changed me, as well. I gained insight into the management of grief through Sherri Mandell’s example and by choosing to participate in the mitzvah. You, too, can share in the mitzvah of transforming cruelty into kindness.

Make check payable to “The Koby Mandell Foundation” and send to: The Koby Mandell Foundation, 366 Pearsall Avenue, Suite #1, Cedarhurst, NY, 11516

Prof. Livia Bitton-Jackson

Judgment And Reckoning

Thursday, September 20th, 2012

Question: A basic Jewish belief is that everyone ultimately will be judged. This final judgment is called din v’cheshbon, judgment and reckoning – see Avot 3:1. What is the difference between these two terms? What is din and what is cheshbon?

Answer: The Gaon of Vilna is reputed to have defined din and cheshbon as follows: Din is the judgment for the sin committed. Cheshbon is the reckoning for the time lost while the sin was being committed – time that could have been used to perform mitzvot. Thus, cheshbon deals with loss of potential. The person who complains about the lack of sufficient time for performing mitzvot is reminded about the time he wasted while sinning.

Rav Shlomo Kluger (Magen Avot) maintains that din refers to judgment regarding mitzvot and aveirot while cheshbon is the reckoning for excess in matters that are permitted in principle, such as food and drink. The Torah does not provide maximum limits for permitted items. Yet, a person may be judged to be gross or crude for indulging too much.

Some note that the sequence in Avot 3:1 seems backwards. Presumably, a cheshbon, a reckoning of the merits and sins of a person, comes before a din, a judgment based on that assessment. Why, then, does the tanna in Avot place din before cheshbon?

The Baal Shem Tov is said to have contended that reckoning actually takes place second. It takes place in Heaven after a person is shown someone who committed a sin similar to his own and passes judgment on that person.

How so? The most notable example is that of King David and the prophet Nathan. After David sinned by taking Batsheba as a wife, Nathan told him the following story: There were two neighbors. One was very wealthy and owned thousands of sheep. The other was quite poor; his sole joy was a pet calf. He played with it, slept near it, and shared his meals with it. One day, a guest came to the wealthy neighbor. Instead of slaughtering one of his numerous sheep, the wealthy man stealthily entered the poor man’s home, took the pet calf, and slaughtered it.

When David heard this story, he became enraged at the immoral behavior of the wealthy man and declared that he deserved a very harsh punishment. Nathan then asked the king how his behavior differed from the wealthy sheep owner’s. David had, after all, taken Batsheba away from her husband Uriah even though he had thousands of women available to him.

The Baal Shem Tov said that all men, like David, are shown people who performed their own sin in different form. They are then asked to pass judgment on them. Whatever judgment they pronounce on their fellow man another is assigned to them.

And this is why din precedes cheshbon. First a man passes judgment on another person in this world. Later, in the world of true judgment, there is a cheshbon, a reckoning based on the very judgment that he issued. (See Iyyunim BePirkei Avot by Rabbi Heshel Ryzman.)

Rabbi J. Simcha Cohen

ZOA Loses Tax Exemption Status, Will Apply for Reinstatement

Wednesday, September 12th, 2012

The Zionist Organization of America has lost its 501(c)3 tax exemption status, due to failure to file tax returns for the last three years.

In an interview with JTA, ZOA president Morton Klein confirmed the loss, and stated that his organization has hired a tax attorney to help them bring their files up to date and apply for reinstatement of their status.

According to Klein, the error in filing was due to the failure of a ZOA-funded school in Ashkelon to provide correct information in time, as well as a misunderstanding on the part of the ZOA as to the amount of time it had left to file for an extension.

Malkah Fleisher

Printed from: http://www.jewishpress.com/news/zoa-loses-tax-exemption-status-will-apply-for-reinstatement/2012/09/12/

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