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April 20, 2014 / 20 Nisan, 5774
At a Glance

Posts Tagged ‘Nesivos Hamishpat’

Forgotten Fill-Up

Thursday, November 24th, 2011

“We are pleased to announce we have been donated a car for communal use,” read the sign in Kollel Mishpat. “Members of the Kollel can use the car g’mach, as available, in coordination with Dani.”

“Wow!” said Yossi. “How much is usage?”

“The charge is 50 cents per mile, to cover gasoline and wear and tear,” said Dani. “Payment is due immediately upon returning the car. If you fill up with gas, the g’mach will refund you that amount.”

“I have an appointment next Tuesday afternoon,” said Yossi. “Is the car available then?”

“Yes,” said Dani. “I’ll write you down.”

Yossi picked up the keys on Tuesday afternoon. “I should be back in about five hours,” he said.

“There’s not much gas in the car,” said Dani. “You’ll probably have to add gas on the way home.”

Yossi drove to his appointment 30 miles away. On the way home, he pulled into the gas station.

“How much gas should I put in?” Yossi thought to himself. He checked his wallet. “I’ve only got $40 cash. Should I put in $10, $20, or $30?” After deliberating a moment, he paid the attendant and proceeded to the pump.

When Yossi came home, his wife said, “While you have the car, there are a few more errands to do.”

Yossi returned just before Minchah. He gave the keys to Dani, and said, “I’ve got to run to minchah now! We’ll settle later.”

A month later, Dani gave Yossi a call. “I was reviewing the car log,” he said. “You drove 60 miles, which is $30, but no payment was listed.”

“You’re right,” Yossi apologized, “I forgot to take care of it, but I purchased gas.”

“That’s fine,” said Dani. “We reimburse for that. How much did you put in?”

“It’s funny, but I don’t remember anymore,” said Yossi. “I remember debating, though, whether to put in 10, 20, or 30 dollars.” He tried very hard to jar his memory, but couldn’t.

“It’s a pity you didn’t pay on time, like you were supposed to,” said Dani. “Then we wouldn’t have had this problem. Ask Rabbi Dayan how to deal with this.”

Yossi called Rabbi Dayan. “I owe the car g’mach $30, but purchased gas on the way home,” he said. “I don’t remember, though, whether I added $10, $20 or $30. Should I assume the least, most, or middle amount?”

“This issue seems to be an intricate dispute between the Ketzos Hachoshen and the Nesivos Hamishpat,” said Rabbi Dayan, “although there is an additional factor here.”

“Oh?” said Yossi. “I didn’t think it would be so complicated.”

“In general, when neither the lender nor the borrower remembers whether the loan was repaid,” explained Rabbi Dayan, “the person cannot be made to pay in beis din, and there is even a dispute whether he has a moral obligation to pay, latzeis yedei shamayim.” (See Taz 75:10; Shach 75:65-67; Pischei Teshuvah 75:21)

“This seems to be our case,” said Yossi. “Neither of us knows whether I repaid the loan by purchasing the gasoline.”

“It seems so at first,” said Rabbi Dayan, “but our case is somewhat different.”

“In what way?” asked Yossi.

“In our case, you have a definite obligation of $30 for using the car, which you did not repay, and there is a possible counter obligation of $10-30 for the gas you bought,” said Rabbi Dayan. “The Ketzos Hachosen [75:5] differentiates between a possible repayment and a counter obligation. When there are two counterclaims, the Ketzos reasons that we treat each obligation independently. The obligation of $30 is clear, whereas the counter obligation for the gasoline is questionable, so that we have to assume the minimal amount of $10. As such you remain obligated for $20.”

“You mentioned that the Nesivos argues,” said Yossi.

“Yes. The Nesivos Hamishpat [75:5] reasons that the counter obligation is considered a form of repayment,” said Rabbi Dayan. “As such, this case is also considered one of possible repayment where neither party knows, so that there remains, at most, a moral obligation.”

“Nonetheless, in this particular case, there is an additional reason to obligate you,” concluded Rabbi Dayan. “This is because the uncertainty arose because of your negligence. In a normal situation where neither the borrower nor the lender remembers whether the loan was repaid, both parties are equally at fault. Furthermore, it is understandable that people sometimes forget.

“Here, however, had you paid in a timely manner according to the rules, you would have known how much you spent on gas. Only because you delayed so much did the doubt arise, so that you cannot hide behind the veil of forgetfulness. Therefore, you can assume only the lower amount of $10, and must repay the remaining $20.” (See Pischei Choshen, Halva’ah, ch. 2, note 78; Nesivos 75:5)

Why Was Avraham Allowed To Perform Hachnasas Orchim?

Saturday, November 12th, 2011

At the beginning of this week’s parshah the Torah writes extensively about Avraham Avinu’s act of hachnasas orchim for the three men who were passing by his tent. Several Achronim are bothered by this action for the following reason: The first pasuk in the parshah says, “Vayeira eilav Hashem – And Hashem appeared to [Avraham].” The Gemara in Baba Metzia 86b says that Hashem had come to visit Avraham in fulfillment of the mitzvah of bikur cholim, as it was the third day after Avraham’s bris milah and he was considered sick. The presence of Hashem, however, did not stop Avraham from performing the mitzvah of hachnasas orchim. The Gemara in Shabbos 127 says that we learn from this that the mitzvah of hachnasas orchim is greater than kabalas p’nei haShechinah.

Achronim ask that since Avraham was in the middle of performing the mitzvah of kabalas p’nei haShechinah, why did he stop and start another mitzvahhachnasas orchim? The rule is osek b’mitzvah patur min ha’mitzvah (while one performs one mitzvah he is exempt from another). The question is even stronger according to the opinion of the Ritva in Sukkah 25 that one who is performing one mitzvah is not allowed to perform another mitzvah.

The Nesivos Hamishpat (72:19) says that the general rule of osek b’mitzvah patur min ha’mitzvah only applies in a scenario in which one was performing an obligatory mitzvah. When one is involved in performing a non-obligatory mitzvah, he may perform another mitzvah if he wishes – even according to the Ritva. Therefore, if one is involved in a voluntary mitzvah and a poor man approaches him, he will be obligated to give him tzedakah.

Based on the opinion of the Nesivos, we can answer the question that was posed regarding Avraham Avinu’s engagement in the act of hachnasas orchim. Since the mitzvah that Avraham was performing (kabalas p’nei haShechinah) was not obligatory, he was allowed to engage in another mitzvah. The reason that Avraham chose to engage in the mitzvah of hachnasas orchim over the mitzvah of kabalas p’nei haShechinah presumably is because it is greater, as the aforementioned Gemara in Shabbos stated.

However, many Achronim were bothered by the ruling of the Nesivos. They state that the Gemara in Sukkah 26a says that individuals who sell tefillin are exempt from all other mitzvos. Selling tefillin is not an obligatory mitzvah, and yet the Gemara extends the rule of osek b’mitzvah patur min ha’mitzvah to those individuals. This seems to be a direct contradiction to the ruling of the Nesivos.

Perhaps we can suggest that the Nesivos agrees that even when one is involved in a voluntary mitzvah, the rule of osek b’mitzvah patur min ha’mitzvah will apply, as is evident from the Gemara in Sukkah. However, the exemption differs when one is performing an obligatory mitzvah as opposed to a voluntary mitzvah. When one is involved in performing an obligatory mitzvah, all other mitzvos are considered as if they are davar rishus (not mitzvos) for him; therefore he is exempt from performing them. There is even a discussion as to whether he would make a berachah on another mitzvah, since it is not considered a mitzvah for him.

When one is involved in a voluntary mitzvah, he is exempt from engaging in other mitzvos. However, we do not render all other mitzvos as if they were not mitzvos. It is merely a right to continue performing the mitzvah that he had started earlier. If one was involved with performing a voluntary mitzvah and decided to engage in another mitzvah, all would agree that he should make a berachah on the new mitzvah since it is a mitzvah even for him.

Printed from: http://www.jewishpress.com/judaism/parsha/why-was-avraham-allowed-to-perform-hachnasas-orchim/2011/11/12/

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