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Kohen Seeking a Minyan With an Additional KohenAt one of the minyanim I attend, I am often the only kohen. Considering that lowers the level of Birkat Kohanim (=BK), should I avoid davening there?
The gemara (Sota 38a) derives from “say to them” (Bamidbar 6:23) in the context of BK that someone calls the kohanim to do BK only when there are at least two kohanim. Since a kohen violates his obligation to do BK only when he fails to do so after being “called” (Shulchan Aruch, Orach Chayim 128:2), Rabbeinu Peretz (cited by the Tur, Orach Chayim 128) says that one kohen, who is not called, cannot violate an obligation. The Tur argues, and the Beit Yosef explains that one kohen violates his obligation when he was unnecessarily called. Tosafot (Menachot 44a) raises another possibility – one kohen who is not called does not have a Torah obligation, but he still has a Rabbinic one.
You are apparently concerned by the opinions that BK is only Rabbinic with one kohen. We will start by mitigating your concern. First, not only does the Yerushalmi hold that even one kohen is called, but the Taz (128:3) and Pri Chadash (128:10) understand that one kohen has a Torah obligation without being called (see variation in Aruch Hashulchan, OC 128:9). One explanation is that calling is needed only when a kohen could pass off the obligation to his fellow kohen, whereas a lone kohen is obviously obligated (see Mishneh Halachot III:197). Admittedly, many (including the Magen Avraham 128:16; Be’ur Halacha 128:25) understand that the obligation is only Rabbinic.
Furthermore, even if the obligation/possibility of violation is Rabbinic, logic indicates that one kohen who does BK voluntarily fulfills a mitzva from the Torah according to all Rishonim. After all, he does the same action in essentially the same manner – why should the lack of prompting disqualify it. This is the approach of the Maharam Mintz (12, quoted by the Magen Avraham ibid.), who thereby explains why one kohen makes a beracha on his BK, and the Minchat Chinuch (#378). The language of the Beur Halacha (ibid.) implies there is no Torah fulfillment.
Should a kohen take steps to fulfill the mitzva specifically as an obligation? The general rule is that performing mitzvot as an obligation is better than voluntarily (Kiddushin 31a), although the extent of the preference is unclear. Arguably, the difference is smaller when one is generally obligated in the mitzva and there is also a Rabbinic obligation. (It may depend on the reasons why the reward is greater when obligated – see Tosafot, Ramban, and Ritva ad loc. Further discussion is beyond our present scope.)
Finally, we must weigh preferences in context. Even if we assume the mitzva is more complete when done with other kohanim, consider that avoiding the minyan when they do not have another kohen leaves the minyan without BK. The following halacha proves that it is proper to “compromise” other preferences to ensure a minyan has BK – apparently including greater concerns than having BK with two kohanim. The Shulchan Aruch (OC 128:20) rules that when a kohen is chazan, he does not do BK unless there are not other kohanim. This indicates that while a kohen gives up his individual mitzva of BK to enhance his ability to serve as chazan, the need for the minyan to have BK, even of one kohen, is more important. In contrast, the classical poskim are silent on making such a sacrifice to jump from BK of one kohen to two. (Az Nidberu XIII:34 believes that a kohen as a chazan with another kohen would do BK according to the Shulchan Aruch to gain the advantage, but he was unable to find a previous posek to say so explicitly.)In the final analysis, all agree that the BK of one kohen is a mitzva (otherwise he would not make a beracha before it) and all should agree that its sanctity and value is not substantively different from that of multiple kohanim. Considering the above, you should be happy if your presence ensures that the minyan has BK.
Shortening Psukei D’zimra to Catch UpI have noticed in a few shuls that a minority of the tzibbur starts Shemoneh Esrei (=SE) together and many people who come in a few minutes late do not try to catch up. Isn’t it correct to skip parts of P’sukei D’zimra (=PDZ) in such a case?
The Shulchan Aruch (Orach Chayim 52:1), based on Geonim and Rishonim, rules that one should shorten PDZ in order to catch up to the tzibbur and details the order of precedence. The Shulchan Aruch allows skipping all of PDZ if needed for that purpose (Yalkut Yosef (PDZ 24) concurs), while most Ashkenazi poskim require a minimal PDZ (Mishna Berura 52:6). (Some say it is important to finish Yishtabach with the tzibbur (see Avnei Yashfeh, OC I:10), but starting SE together is the main issue (Mishna Berura ibid.).)
Discussion was awoken by a passage in the Maggid Meisharim (quoted in Ba’er Heitev 52:1) in which Rav Yosef Karo’s angel warned him to come to shul early because skipping parts of PDZ is like “fiddling with the pipes.” The Ba’er Heitiv continues that many pious people thus do not shorten PDZ even if they come late.
There are few reasons to stick by the Shulchan Aruch’s ruling despite the story involving its author. First, the maggid’s instruction was to come early to shul, which actually implies that if he did not come early, he should skip parts of PDZ (Eliya Rabba 52:4). Furthermore, we do not follow kabbalistic sources against a halachic consensus (Chacham Tzvi 36). It may be different for people who follow all kabbalistic practices (see Ma’amar Mordechai 52:1), [few of whom read our column]. While significant halachic authorities follow the Ba’er Heitev’s understanding of Maggid Meisharim, the pillars of contemporary halacha do not (see Mishna Berura ibid.; Igrot Moshe OC, IV:91; Yechaveh Da’at V:5; Halichot Shlomo 8:41).
Cases that the classical sources did not discuss explicitly are riper for machloket. The Sha’arei Teshuva (52:1) says that if one davens too slowly to keep up with the tzibbur, he is allowed (apparently not required – see Ishei Yisrael 12:22) to say everything at his own pace and miss SE with the tzibbur. The implication is that he is not required to start davening early to “build up a lead” (ibid.). (He should, though, have his tallit and tefillin on and have recited Birkot Hashachar by the time the tzibbur starts PDZ.)
The Eshel Avraham (Butchatch- 52) says that it suffices to join the tzibbur at chazarat hashatz, and one should not skip PDZ to start the silent SE together. This depends on a broad question of if or to what extent chazarat hashatz counts as tefilla b’tzibbur (see Yabia Omer II, OC 7; our column, Tazria 5766); the Pri Megadim (EA 52:1) says it does not. This question has an opposite ramification in a different case in our issue – does one shorten PDZ to make it on time to chazarat hashatz when he anyway will miss silent SE? Each fundamental approach has a strong basis, but we prefer the approach that davening along with the chazarat hashatz fulfills a lower level element of tefilla b’tzibbur, but that regarding our context the crucial point is only the beginning of silent SE (Mishna Berura 52:6; Halichot Shlomo 8:41 (citing Rav S.Z. Auerbach)). (It is very difficult to read the classical sources any other way.) Starting SE significantly late but while the tzibbur is still davening is probably a similar level as that of joining chazarat shatz, and it is also permitted only if one will finish his SE by Kedusha (Shulchan Aruch, OC 109:1; Pri Megadim 109, EA 2; see B’tzel Hachochma IV:3).
In summary, we recommend to skip as much of PDZ as needed to give one a good chance to start silent SE (and, in most cases, Barchu) together. We respect other legitimate opinions, especially under certain consequences (see above). Having a shul start SE without a large percentage of the tzibbur joining together is regrettable. While it is proper to slow down to the average participant’s davening speed, “holding back” those who come on time to accommodate latecomers is also problematic.
Making Berachot on the Animals in a ZooTo date I have not made berachot on animals I have seen in the zoo, but it seems from sifrei halacha that one should. Should I start doing so, and, if so, what are the basic rules?
(We will not discuss the beracha for beautiful animals, which the Mishna Berura (226:32) already said is not really in practice in our times). A baraita (Berachot 58b) says that when one sees an elephant, a monkey, or a kafof (the exact species is unclear), he recites the beracha “…meshaneh haberiyot” (who makes diverse creations). This beracha is also cited regarding abnormalities within humans. Matters of abnormalities are likely to involve an element of subjectivity, as we will mention later.
Rav Shlomo Zalman Auerbach is cited as saying the beracha applies to any unusual animal (Halichot Shlomo 23:35). Others say that the list is a closed one (see V’zot Haberacha, p. 156), which can be true for a few reasons. Perhaps Chazal saw a unique characteristic in those animals (see Meiri, Berachot 58b). Even if it could theoretically apply to other animals, it is difficult to know what to consider unusual, and therefore it is best to recite such berachot only when we are sure. (I do not why we are sure what type of monkey Chazal were referring to – a gorilla looks quite different from a chimpanzee, or a mandrel, etc.)
There is also a question as to how often to make the beracha. Rav Auerbach is cited (Halichot Shlomo, ibid.) as instructing zoo-goers to recite the beracha on the first animal one finds definitely fascinating and intend to cover the other animals. This approach can be justified on several grounds. When one expects to have different occasions in close proximity where a certain beracha applies, it is often better to make one beracha for all of them (e.g., regarding eating; see Yoreh Deah 19 regarding shechita). It also removes doubt that will arise when it is not clear if a beracha is again necessary. There is also logic to view the trip to the zoo as one experience, as I will explain. Perhaps, it is not that each animal needs to have or be included in a beracha, as different foods do. Rather, seeing unusual animals makes one reflect on the wonder of creation, and the entire trip to the zoo is focused on that.
It seems that most religious Jews do not make a beracha on animals in the zoo, including elephants. Does this have any justification? First, it is far from clear that when the beracha is appropriate, it is obligatory (see a brief discussion in Yabia Omer IV, OC 20). Additionally, the Shulchan Aruch (OC 225:9) says that this beracha should be said only the first time in a lifetime for each unusual sight, when it has its greatest impact. If one neglected to make the beracha or was a child at the first opportunity, the beracha is not made up later (see Birkat Hashem, IV, 3:28). While the Rama (ad loc.) says that the clock is reset every thirty days, as is often the case regarding similar berachot, the Mishna Berura (225:30) suggests making the beracha without Hashem’s name.
More fundamentally, we must recall the beracha’s subjective nature and note that times have changed. Once upon a time, a person could go through a lifetime without seeing a monkey or even a picture of one, and the excitement of seeing one made a beracha more natural. Nowadays, people go to the zoo periodically and whenever they want, and they have seen images of elephants and exotic animals many times (all agree the beracha can only be said on seeing them in person). Therefore, the excitement is not the same. (Seeing one in its habitat is likely different.)
Therefore, those who do not make the beracha at the zoo do not need to begin doing so. However, those who do say or want to start, especially those who get excited by the animal kingdom with whom Hashem has us share the world, do not have to fear beracha l’vatala (see Yabia Omer, ibid.), at least on monkeys, elephants or astounding animals. One can certainly make the beracha without Hashem’s name and should certainly think of Him often during the visit.
Going to the Courts Where There Is No Beit DinI am a lawyer in a country with a small Jewish population, in which when we need a din Torah, we fly someone in from another country. A Jew who is suing another Jew asked me to represent him, and the dispute is on a modest amount of money, which is less than the cost of bringing a beit din. May we sue in non-Jewish courts?
Although we respect and value local governmental courts (see Avot 3:2), Jews are required to seek adjudication specifically in a beit din (Shulchan Aruch, Choshen Mishpat 26). There are two main rationales for this halacha: 1. It is wrong for the incorrect litigant, from the perspective of Torah law, to win the case. 2) Seeking a different system of justice is a severe affront to the Torah’s pertinence in the critical realm of justice (see Beit Yosef, CM 26; S’ma 26:4).
Factor #1 does not apply if the two sides agree to go before the non-Jewish court, as they can decide on other forms of dispute resolution, e.g., mediation, flipping a coin … However, factor #2 is still a problem. If adjudicating in a beit din is unfeasible, then factor #2 should not be a problem because one is not rejecting Torah justice but is just dealing with a situation where it is not an option. Indeed, the gemara talks about adjudication before unknowledgeable Jews when no local Jews are capable of functioning as a proper beit din (Sanhedrin 23a, adopted by the Rashba, cited in Beit Yosef, CM 8). The implication is that this is preferable to going to the local non-Jewish court. On the other hand, there is room to argue that this was based on an assumption, which is not as prevalent in our days as in the past, that the courts were a corrupt and a dangerous place for Jews and the Jewish community (see Rashba, Shut II:290).
What does one do when a city has no Jewish tribunal at all? The Rama (CM 14:1) says that this is grounds for going to another city from the one in which the case should have been heard. However, as the discussion above implies, out-of town alternatives may be deemed practically unfeasible.
Most poskim posit that when there is no beit din that can adjudicate, it is permissible to go before a non-Jewish court (Chukot Hachayim (Palagi) 6). The Rivash (216) implies this. The Shulchan Aruch (CM 61:6) says that although a contractual stipulation does not allow a lender to make payment from a borrower’s property without involvement of beit din, he may do so if he cannot find a beit din to adjudicate. The Maharikash (Erech Lechem, ad loc.) broadens this concept to allowing a Jew to sue in non-Jewish court when a local beit din is unwilling to hear the case. There is discussion about the conditions under which such action is justified (see Chukot Hachayim ibid.) and on whether a beit din must at least grant permission, but in cases where there is no alternative, it is permitted to go to the courts.
Spending more money on transportation than the claim warrants is one such case (see Sanhedrin 31b). On the other hand, there are often reasonable alternatives. Mediation and non-judicial arbitration are often good ideas in any case. Nowadays, there are recognized batei din which will adjudicate via video-conferencing, as our beit din has done successfully. While a standard hearing is more effective, we find precedents for compromising effectiveness in a case of need. For example, when one side wants to go to an expert regional beit din and the other prefers a local lower-level one, they adjudicate locally, and the beit din sends questions to experts (ibid.; Shulchan Aruch, CM 14:1).
We suggest that your plaintiff propose one of the above alternatives. If the other side rejects them, it is like any case in which the defendant refuses to submit to beit din and beit din grants permission to go to court. It would be legitimate for the plaintiff to refuse to offer one of these options if he truly believes that they will take away from his right for justice. In any case, it would be permitted for you to represent him as a lawyer in court.
Eating ContestsPlease state your opinion on whether eating contests violate any prohibitions such as bal tashchit? (I am a reporter writing an article.) Is there a difference between contests of volume (e.g., tens of hot dogs in ten minutes) and of speed (e.g., eating three hot dogs fastest)?
Presumably, one with a Torah-based mindset will react negatively to such contests (with good reason). However, we do not believe in using words like “forbidden” without honestly weighing halachic issues.
We start with the issue you raised – bal tashchit (not destroying). This prohibition, beyond the Torah context of destroying trees, is hard to pin down. The Rambam (Melachim 6:10) describes it as applying not to wasting but to destroying things, including “me’abed ma’achalot derech hashchata” (destroying food in a destructive way). The stress of a destructive manner opens the door for allowing arguably wasteful usage of objects of value for such purposes as recreation (see Etz Hasadeh (Shtesman) 11:2). The fact that, after all, we are discussing eating makes it harder to claim the ingestion of the food is destructive. Rav Zilberstein (in Tzohar, 5758) claims that Rashi would consider stuffing oneself bal tashchit. In discussing one who is bloated eating more, the gemara (Yoma 80b) describes the action as “not eating” but “damaging,” and Rashi (ad loc.) says he damages the food and himself. If it is called damaging the food, it is likely bal tashchit. However, it would seem that since the context there is the parameters of forbidden eating (e.g., Yom Kippur, non-kosher food) and not bal tashchit, it is hard to know what Rashi would say in our context.
Another, related (see Rashi, Ta’anit 20b) issue is bizuy ochlin (disgrace of food). Halacha distinguishes between foods (see Shulchan Aruch, Orach Chayim 171:1). Most foods are disgraced only when they are soiled and made unappetizing prior to eating. It is hard to apply that to eating, even if in a not natural way. Bread, though, may not be handled disrespectfully (e.g., throwing it) even when it is unaffected. Thus, while it is hard to consider over-eating an objective bizuy ochlin for most foods, it is reasonable to consider stuffing bread (including hot dog buns) down one’s throat in the context of extreme over-eating forbidden situational bizuy.
Safety concerns are also questionable. A small number of people have died (mainly from choking) at eating contests, and it is not wonderful for one’s digestive system. We find in Chazal particular concern for not eating in a dangerous or even not healthy manner (speaking while eating – Ta’anit 5b; eating standing – Gittin 70a). On the other hand, in addition to our reluctance to taking stands on medical matters, we do not want to be hypocritical by outright forbidding eating contests on health grounds when so many people eat very unhealthily.
There are a few semi-halachic, semi-philosophical areas about which people can argue, but we will skip to an issue that we believe at least eating contests of volume clearly violate – bal teshaktzu. A secondary application of Vayikra 11:43 is that one should not put his body in a situation in which he feels disgusted. Classic examples include holding in a strong need to eliminate and eating in a manner that disgusts him (Makkot 16b). It is true that poskim allow such situations for certain needs (e.g., one is in public without access to a bathroom – Mishna Berura 3:17; a sick person who needs to ingest a medicine that disgusts him – see Pri Megadim, Siftei Da’at 81:3). However, the anyway dubious practice of an eating contest is not adequate justification.
Regarding an eating “sprint” of three hot dogs, we lack the expertise to determine whether contestants necessarily disgust themselves or whether fast swallowing is just a technical skill of swallowing a normal amount of food unusually fast. The food can certainly be used by the body in a normal manner. Therefore, objections to such a contest would be based more on philosophical/ethical grounds than halachic ones.
Pay for Cancelled Summer CampsDuring Operation Tzuk Eitan, when summer camps were cancelled because campsites were not “missile-proof,” do the parents have to pay anyway? Does it make a difference if they already paid? [We answered this question during the fighting, but the halachic and moral concepts can be applied even after its hopefully successful conclusion.]
We start with a few halachic sources and conclude with an important moral message.
Bava Metzia 77a records the general rule regarding a work agreement that became unfeasible to carry out. If one side is assumed to have been aware of the possibility of work stoppage and the other was not, the side that knew loses (by paying or not paying, respectively) because of his failure to stipulate otherwise. If the two sides’ degrees of awareness are comparable, the worker is not paid. There are different opinions as to whether the worker loses because he has the more difficult task of extracting money, or because only under special circumstances does a worker deserve pay without performing the work (see Terumat Hadeshen 329 and Be’ur Hagra, Choshen Mishpat 334:5). One difference between the opinions is if the worker was pre-paid. Another pertinent source discusses a case where Reuven rented a boat from Shimon to transport wine and the boat and wine sank midway. Does Reuven have to pay Shimon the rental fee? There are four different halachot (obligated, exempt, split the money, depends if he already paid) in four different permutations of the case (the factors are: whether Reuven can provide other wine; whether Shimon can provide a different boat).
Finally, we present the concept of makat medina (an impediment that affects a broad population). The mishna/gemara (ibid. 105b) says that that a field’s sharecropper is entitled to partial relief from his payment if crops are destroyed by a regional infestation. The Maharam Padova (86) explains that in such a case, one cannot say the “bad fortune” relates to a particular person, and he and the Rama (CM 334:1) apply the concept also to a worker who was prevented from working due to a makat medina. The Mordechai (Bava Metzia 343) cites the Maharam as saying that if the government suspends schools, parents still have to pay teachers. There is great debate (see S’ma 321:6; Shach 321:1; Netivot Hamishpat 321:1) if and under what circumstances we accept the Rama. The Chatam Sofer wrote, regarding teaching that was suspended for weeks due to war, that he found it nearly impossible to determine whether strictly halachically, the teachers must be paid, and he urged for the various sides to reach compromises.
If a specific case came to our doorstep (which would require the presentation of two sides), we would find it hard to be more certain that the Chatam Sofer was. If the question is general, as it appears, it is even harder to answer because many fluid factors are not addressed. A partial list of questions follows. Is the camp in question in a region where some such activities are continuing or are all suspended? Is it possible for the camp to make other arrangements? Was the problem known at the time of payment and by whom?
One of the great national assets going into and to this point of Operation Tzuk Eitan is a palpable feeling of solidarity. Especially around Tisha B’av time, we should recall the gemara (Bava Metzia 30b) that says that Yerushalayim was destroyed because people were unwilling to go beyond monetary law and act beyond the letter of the law. In most cases, both parents and camp directors will have legitimate claims. Let us hope that all people involved in such issues will be willing to offer their brother a compromise if not the benefit of the doubt. (One of our dayanim likes to tell of a Yerushalmi ancestor who was sued in beit din for refusing to receive more payment than he thought he deserved. While our beit din has not yet adjudicated such a case, we will happily do so.) In the merit of mutual understanding and concern, may we defeat our enemies and see a geula shleima.
Restrictions of Motzaei Tisha B’AvWhat restrictions of Tisha B’Av/Nine Days exist after Tisha B’Av and until when?
From the perspective of the gemara (Ta’anit 30a), the restrictions of the Nine Days end with the completion of Tisha (9th of) B’Av. This is not obvious, as the majority of the burning of the Beit Hamikdash was on the 10th of Av, and Rabbi Yochanan (ibid. 29a) said that he would have thought that the latter date is the more appropriate day for the fast. In fact there were Amoraim who fasted both days (Yerushalmi, Ta’anit 4:6).
Based on this background, post-Talmudic minhagim developed to forbid certain matters after Tisha B’Av. The Tur (Orach Chayim 558) writes: “It is a proper minhag to not eat meat on the night of the 10th and the day of the 10th, just to relieve the spirit, so that it should be close to a fast.” The Bach understands this language as a double stringency: one should not eat any meat on the 10th; even regarding other foods, one should limit his eating as is befitting for a day that on some level should have been a fast. The second stringency is not accepted, as we eat non-meat foods normally after Tisha B’Av (although we can relate to Mikraei Kodesh’s (Harari – Fasts, 11:(29)) discomfort with those who, for example, go out for ice cream every Motzaei Tisha B’Av).
The Shulchan Aruch (OC 558:1) cites the minhag to not eat meat or drink wine the whole night and day of the 10th. Various Acharonim limit the stringency somewhat. The Be’ur Halacha (ad. loc.) says that it is permitted to eat a food that was cooked with meat as long as one does not eat the meat itself. The Magen Avraham (558:1) says it is permitted to eat meat at a seudat mitzva (we will not get into the question of whether one is allowed to get married at that time). Finally, the Rama (ad loc.) sets the tone for Ashkenazim in limiting the minhag against meat and wine until midday of the 10th.
Regarding other restrictions, Ashkenazim are stricter than Sephardim. The Shulchan Aruch mentions only meat and wine, and the Rama does not argue. However, the Maharshal (Shut 92) writes that since the minhag is to extend the Nine Days’ restriction of wine and meat into the 10th, the same should be true of laundering, haircutting, and bathing. The Mishna Berura (558:3) and the broad consensus of Ashkenazi poskim accept the Maharshal.
Regarding Sephardim, the Chida and some other prominent poskim also accept this stringency. However, this part of the minhag was apparently not widely accepted, and therefore Rav Ovadia Yosef (Yechaveh Da’at V:41) says that Sephardim should follow the Shulchan Aruch’s opinion that only meat and wine are forbidden, whereas the rest of the restrictions cease right after Tisha B’Av. (The recitation of Shehecheyanu is questionable – see Torat Hamoadim, Fasts 11:5. Mikraei Kodesh (ibid. 18) cites Rav Mordechai Eliyahu as extending the restriction on music throughout the 10th.)
There is room for leniency in cases of need regarding laundering, hair cutting, and bathing, even for Ashkenazim, for a few reasons. First, this part of the minhag is not just post-Talmudic, but even post-Shulchan Aruch. Secondly, it is much more common for there to be difficulty in continuing these restrictions, especially as the hot summer takes its toll and the stacks of laundry pile up. All agree that one can do any of these things in honor of Shabbat when Tisha B’Av falls on Thursday (Mishna Berura 558:3). (Halichot Shlomo I, 15:16 says that one can start washing on Thursday night and throw into a load of things needed for Shabbat even things that are not needed for Shabbat, but that haircutting should wait for Friday.) There are other situations, such as people leaving home soon after Tisha B’Av who need a supply of laundry, where stringency is likely beyond the call of duty.
(When Tisha B’Av is pushed off from Shabbat to Sunday, Motzaei Tisha B’Av is the 11th, and there is only a restriction on meat and wine and only at night – Rama, OC 558:1).
Is a Professional Believed About the Time He Put InI sent my computer to a technician to repair serious problems. He was unwilling to tell me his charge in advance, claiming it depended on how long it would take him, to which he would not commit. After fixing the computer, he charged me what I consider an exorbitant price. I am not sure I trust him on how much work he put in. Must I pay without making an issue of it?
In all questions of this nature, we warn the querier that we cannot say anything conclusive after hearing only one side, as even two honest people can have different viewpoints of the same events. This is all the more so in this case in which you yourself are in the dark about what happened. While we often say that the two sides have to be heard in beit din or another permitted arbitrative setting, we cannot ignore your question – whether you should make an issue at all. Therefore, we will briefly discuss general sources and factors.
The client has the advantage In a disagreement between a client and a worker over the amount that was set for payment due to the rule that one who wants to extract payment requires proof (Shulchan Aruch, Choshen Mishpat 89:4). However, if the client is uncertain how much he owes, he should have to pay because he is unable to take the serious oath in which he is obligated (see ibid. 75:13). If he is incapable of knowing how much he has to pay, this logic does not apply (Shach, CM 75:54).
In work such as this, where it is clear that one is going to know how much time he put in and the other will not, the rules are somewhat different. Mishnayot regarding a particular agent who claims he made expenditures on behalf of another (Sh’vuot 45a) and a husband who made improvements in his wife’s field before divorce (Ketubot 79b) say that the plaintiff swears how much he spent and is reimbursed. The Mordechai (Ketubot 209), Maharik (10), and Rama (CM 91:3) understand this as a broad rule regarding claimants who know about the expenditures and defendants who do not – the claimant is believed to receive payment with an oath.
The above appears contradicted by the halacha that one who seeks reimbursement for expenditures due to unreasonable steps taken by his counterpart in litigation must prove how much he spent (Rama, CM 14:5). The S’ma (91:16) distinguishes between cases where the claimant worked for the benefit of the other side and where he acted against his will. The Shach (ibid. 23) distinguishes between cases where the defendant requested of the claimant to make the outlays and cases where he acted on his own accord. Part of the logic is that when Reuven asks Shimon to do something that deserves reimbursement without demanding proof from the outset, he in effect grants trust in the veracity of Shimon’s charge.
The obligation to pay wages is equivalent to that to pay expenses. In your case, the S’ma and Schach should agree that you should believe the person whom you authorized to work and bill you. Certain cases could arguably be exceptions. One is when you have strong grounds to believe he is lying (see Pitchei Teshuva, CM 91:4). Another is where the technician should have informed you when he figured out the extent of the cost, enabling you to decide whether it is worthwhile to have it fixed. (Often, he will not know until well into the process, when informing you is irrelevant. Furthermore, he can claim that you should have requested an update. Such matters change from case to case.)
It is generally best to research a professional’s reliability before you hire him and if you heard favorable reports, to trust him. While it is your prerogative to not use him in the future, refusing to pay in full is drastic. Some situations may lend themselves to expressing (in a mentchslach way) your displeasure and suggesting that your willingness to use him again depends on a reduction in price. There are so many unclear factors that it is hard to give firm advice as to what to do, and without hearing the other side, it is certainly wrong to attempt to tell you who is right.
Buying Land for ShemittaA group is giving the opportunity to buy agricultural land in Israel for the Shemitta year. Is that worthwhile?
We start with an overview of the agricultural mitzvot of Shemitta along with a brief analysis of the significance of obtaining land ownership.
The Rambam (Lo Ta’aseh 220-223) lists four such negative commandments, about: 1) working the land; 2) tending to the trees; 3) reaping the produce in the normal way; 4) harvesting fruit of the trees in the normal way. The prohibition of working the land applies even to one who does not own the land. There is a machloket whether there is a Torah prohibition on harvesting someone else’s field (Chazon Ish, Shvi’it 12:5 is lenient; Rav Auerbach, Ma’adanei Eretz 7:4 is stringent). In any case, the reward for refraining from aveirot is a function of the availability of and the temptation toward the aveira (see Kiddushin 39b with Rashi). One who owns a distant, small piece of land is not tempted to work it. Just as we would not suggest buying a donkey and bull to refrain from plowing with them together, the above is not a reason to obtain land before Shemitta.
The positive mitzvot are more pertinent. There is a machloket Rishonim whether the positive state of cessation from working the land (Rambam, Aseh 135) is a function of an individual’s work irrespective of ownership (Rambam Shvi’it 1:1) or whether it is a landowner’s responsibility to ensure his field is not worked (Ritva, Avoda Zara 15b). A third approach holds Jews responsible to save the land from being worked, including by redeeming it from non-Jews who may work it (Netziv, Vayikra 25:4). According to the Rambam, obtaining land is not a factor in creating this positive fulfillment (one who takes a sabbatical from his job as a farm worker would fulfill the mitzva). According to the Ritva, buying creates an opportunity to fulfill the mitzva. According to the Netziv (whose opinion is considered somewhat extreme), the mitzva entails obtaining land that would otherwise be worked.
There is also a mitzva to deal properly with the fruit of one’s field that were planted before Shemitta or grew on trees, including treating it as ownerless (Aseh 134). While according to Rav Auerbach (above), elements of this mitzva can also be fulfilled by non-landowners in
Another gain of buying land is helping farmers keep Shemitta properly. Rav Kook (see his introduction to Shabbat Ha’aretz) and all other poskim who supported the heter mechira, did not do so for those who were willing and able (without extreme financial hardship) to keep the mitzva. This is both in order to not uproot the mitzva and to avoid the great halachic problems involved in the heter mechira. Thus, helping interested farmers survive without selling their fields to non-Jews is similar to giving ma’ot chitim to one who cannot afford mehadrin Pesach provisions or donating to improve a mikveh according to the request of the local rabbi. (A member of the camp that rejects the heter mechira would view it as saving people from sin.)
If one purchases the field at its value (including the overhead of arranging the sale), he should not use ma’aser kesafim, as he should not for buying an etrog (see Tzedaka U’mishpat 6:1). A donation (without buying land or the part of the price that is beyond the purchase’s value) to an organization that helps farmers may be taken from ma’aser money (see ibid. 10).
We discovered that those who provide individuals with the land/mitzva opportunity include people who also plan to earn a lot of money (unfortunately, not all approbations of important rabbis relate to this element). Baruch Hashem, there are also those who are dedicated to helping farmers as well as providing a mitzva opportunity. While we will not rate groups publicly, we recommend to the wise mitzva consumer to check, not only the sale’s authenticity, but also the appropriateness of the price per area and the number of farmers who will be benefitting from the project.
A Loan/Investment that Needs a Heter Iska After Its InceptionI have an ongoing arrangement by which a friend loans me thousands of dollars to use for my business at a fixed rate of interest. I think (but am not sure) that we agreed to have a heter iska (I can’t find one), but it is possible it was only agreed orally. Some money has been paid, and some is still owed. What should I do at this point?
If there was a valid heter iska, you have no problems even if you cannot find it. That is because a heter iska sets the nature of the transaction as having an element of investment (subject to profit or loss, at least theoretically) from the outset, and therefore there is no problematic loan. [The reason that a heter iska can be used to pay at a fixed rate, irrespective of actual profits is connected to the halacha that the investor can demand verification (witnesses, oath) that the investment did not earn more than stated. The heter iska states that a fixed rate can be paid as “assumed profit” (d’mei hitpashrut) in lieu of verification.]
According to most poskim, an oral heter iska agreement is valid b’dieved (see Brit Yehuda 40:9; Torat Ribbit 16:2). Why then do we bother with a written agreement? While we certainly do not intend to cast aspersions on a halachic system that the rabbinic community has accepted broadly, most will admit that it borders on halachic fiction. The sides basically agree to a loan to be returned with interest even if the borrower did not profit. It is therefore worthwhile to be able to lean on the halachic precedent that the written word can raise doubtful agreements to the minimum level required (see Ketubot 56b; Tzemech Tzedek, Yoreh Deah 88). Additionally, many people do not understand the conditions of the iska. Most poskim do not require a high-level understanding of the mechanism, but it is unclear what the minimum level is. When things are in writing, there is more chance one understands (see Brit Yehuda 354). Also, there is a broad rule that when something is in writing, we do not enable one to claim he did not understand; he is to realize he is accountable for whatever is written (see Netivot Shalom p. 726). This element is missing when the “agreement” is oral. Also, there are different types of heter iska which can be used, and not everyone knows how to specify which version they are agreeing to. In summary of this part of the question, it is important to have a written heter iska, and you should prepare one now. However, if there was an agreement to follow the conditions of a classic heter iska, under the circumstances you can assume the agreement had the proper halachic effect.
What if there was no agreement? Interest that was paid already would be the violation of a Torah prohibition, which the creditor is required to return to the borrower (Shulchan Aruch, YD 161:5). However, the borrower is allowed to waive the right to have the money returned (ibid. 160:5), as you are apparently interested in doing. (There is more to be said on this matter, but it is beyond our scope.) Regarding the future, it is possible to create an iska at this point. This can be accomplished by transferring to you potentially profit-producing assets by means of a kinyan sudar (Dagul Me’revava to Shach, YD 177:41) or through a written heter iska (slightly modified language is preferable). This new iska arrangement cannot change the nature of the loan retroactively, and thus it is forbidden to make new interest payments to correspond to the time that passed (Torat Ribbit 16:29). Some allow compensating for the lost profit by making the d’mei hitpashrut higher than what was planned (ibid.; Netivot Shalom, p. 721). However, others counter logically that it is clear that the added payment is ribbit for the past and not incidental (ibid.). The less exact and less clear the compensation is the more reasonable leniency is on this point.
[Since each case has its own details and dynamics, we suggest you speak to us about arriving at the best arrangement for your case.]
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