Tale in Front of Three is not Subject to Lashon Hara

By: Reb Avi Lebowitz

The Chofetz Chaim dedicates an entire chapter (klal three) to discuss the various interpretations of Rabbah bar Rav Huna who says that disparaging remarks related in the presence of three people do not constitute slander.

Rashbam understands that he is discussing a case where Reuven violated the prohibition of lashon hora by saying something negative in the presence of three people about Shimon. It would then be permitted for these people to repeat to Shimon what Reuven said about them, since it was said in the presence of three - it is assumed that Shimon will find out anyway.

The difficulty with this approach is that it seems somewhat circular - the three people are allowed to repeat the tale to Shimon because they will repeat it to him anyway, so he is bound to find out.

Therefore, the Chofetz Chaim writes (2:5) that if one of the three is a G-d fearing person and is not likely to repeat the lashon hora by saying the tale to Shimon, it would be forbidden for any of the three to repeat it, because it is as if it wasn't said in the presence of three.

The Rambam seems to take a similar approach, but rather than explaining it based on rechilus, he simply says that the three people who heard the lashon hora are permitted to repeat it to others since they are bound to find out anyway. But the Rambam stipulates that when one of the three repeat over the lashon hora, they cannot intend to degrade the person they are speaking about or make it more revealed (for example, if it a local group knew about it, it would be forbidden to publish in the papers for the purpose of spreading the news to others).

Tosfos has an entirely different approach where he completely avoids the permission of the Rashbam and Rambam. The Gemora is speaking of an avak lashon hora, which can be interpreted both for good and for bad. The idea of telling it over in front of three people is a litmus test whether it is actually lashon hora. If the teller is not embarrassed to say it over in front of three people which will likely lead to the one being spoken about hearing that he was spoken about, it is not lashon hora. But if the speaker would be afraid to tell it over to three people out of fear that the person being spoken about will find out, it is lashon hora. [The Chofetz Chaim proves that Tosfos cannot be matir outright lashon hora even if told to three.]

Rabbeinu Yonah (Shaarei Teshuva 228) has an alternate approach where he explains the case to be when the lashon hora is being spoken about a person who there isn't any real prohibition to speak about - see there.

According to all the approaches, the connection to the protest is very simply that we find by lashon hora an assumption that word travels when told in the presence of three, therefore a protest must be done in the presence of three. But, as the Rashbam points out, there is no violation of lashon hora at all to spread a protest because it is being done for a constructive purpose, so that the occupier holds on to his contract to prove that the field belongs to him.

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A Disputed Vehicle

By: Meoros HaDaf HaYomi

Levi was known to have a car and Shimon started using it but when Levi asked him to desist, Shimon retorted that he bought it from him. The licensing bureau was on strike and the true ownership could not be documented, so Levi summoned Shimon to a beis din. Shimon claimed the above-mentioned right of chazakah that anything a person now holds is assumed as his (Shulchan Aruch, C.M. 133:1). Apparently, the solution to the problem depends on the two explanations in Rashbam’s commentary on our Gemora: Anyone purporting to own real estate known as another’s must produce a bill of sale or other proof and, if not, relinquish his claim. Regarding chattels, though, the present holder of the goods may claim the above right of chazakah without further proof of acquisition as his physical possession proves his ownership: We assume he did not enter the owner’s premises and steal them, but made a legal purchase.

Our sugya, though, tells of a person with goats in his possession, claimed by the original owner, and asserts that chazakah in this case is inapplicable but that he must prove he bought them. Rashbam (s.v. Hagoderos) offers two reasons to differentiate goats from other chattels: (a) They move about by themselves, as opposed to other, immobile chattels. (b) Other chattels are kept at home whereas goats are usually out grazing. Chazakah, we said, stems from the assumption that a holder of chattels has not stolen them as most people are not so brazen to rob others’ homes. Goats, though, may be stolen in two ways without invading another’s premises: (a) They could wander into the holder’s premises by themselves. (b) He could take them from a public or ownerless area. The ease of their theft undermines the claim of chazakah.

How is a goat different from a car? In his Netzach Yisrael (41), HaGaon Rav Yisrael Grosman asserts that accoding to Rashbam’s first reason, cars are not like goats: They don’t move by themselves. According to his second reason, however, cars may be compared to goats as they are not kept at home.

To decide if chazakah applies to a car, then, we must determine whether Rashbam links the two reasons – i.e., chazakah doesn’t apply only if both reasons prevail, as in the case of goats – or if merely one reason suffices to overrule chazakah. Rav Grosman learns from Tosfos in Gittin (20b, s.v. Ta shema) that one reason is enough and Shimon must therefore prove his ownership.

Still, in his Darchei Choshen (I, p. 197), HaGaon Rav Y. Silman insists that entering and driving another’s car is the same as breaking and entering into his premises. Most people are not suspect of such crimes and Shimon does not have to prove his ownership.

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