Swept Away Olive Trees and Settling in Eretz Yisroel Nowadays

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The Mishna had stated: A river swept away a person’s olives trees and deposited them (together with their roots) in someone else’s field. The owner of the trees says, “My olive tree grew this,” while the owner of the land says, “My land grew this.” They should split the olives.

The Maggid Mishnah writes that that if the olive trees were not uprooted together with their clods of earth, the trees would be regarded as a lost article that is permitted to all. This would be similar to the Gemora above (22a), which states: If a river washed away someone’s beams, timber, or stones, and has deposited them in someone else’s field, they belong to the field owner because the owner has given up hope. Accordingly, in our case, the trees would belong to the landowner, and he would not be required to pay the original owner of the trees at all. However, if they were uprooted together with their clods of earth, since the trees`are growing as a result of his land, it emerges that the tree owner is also contributing towards the growth of the olives; they therefore would divide it.

Alternatively, it can be said that if the trees were uprooted together with their clods of earth, the river cannot sweep them a great distance away from their point of origin, and therefore, the owner does not despair about getting them back.

Settling in Eretz Yisroel Nowadays

The Mishna had stated: A river swept away a person’s olives trees and deposited them (together with their roots) in someone else’s field. The owner of the trees says, “My olive tree grew this,” while the owner of the land says, “My land grew this.” They should split the olives.

A Tanna taught: If he said, “I wish to take back my olive trees,” we do not listen to him.

The Gemora asks: Why is that?

Rabbi Yochanan said: It is because of the significance of settling Eretz Yisroel.

Rabbi Yirmiyah said: For such an answer, a great man is necessary (for we would not have said like this using our own logic).

The Ramban says that this mitzvah is a Biblical commandment. The Rambam omits this mitzvah is his Sefer Hamitzvos. There are those that explain that the Rambam holds that it’s only a Rabbinical mitzvah. Other say that the Rambam holds it is not a mitzvah at all; the only reason why a man can force his family members to move to Eretz Yisroel is because this way, they will be able to fulfill the mitzvos which are dependent upon the Land of Israel.

The Ritva writes that the applications of the Mishna apply to nowadays also. Proof to this is from the fact that Rebbe incorporated these halachos into the Mishna even though he was living in the times after the destruction of the Beis Hamikdosh.

Tosfos (Kesuvos 110) cites Rabbeinu Chaim Kohen that there is no mitzvah nowadays because there are many mitzvos there which entail many punishments, and it will be impossible for one to be careful regarding all of them. This can be simply understood to mean that although there might be a mitzvah to live in Eretz Yisroel, it is simply not worth it, for one will lose out by transgressing many aveiros there. Reb Avi Lebovitz (and afterwards I found this logic in the Beis Halevi) explains a little differently: Rabbeinu Chaim is actually describing the mitzvah of living in Eretz Yisroel to be for the purpose of fulfilling the mitzvos that apply there. If one were to live in Eretz Yisroel without properly performing the mitzvos, they are not only losing out on these additional mitzvos; they are also not fulfilling the mitzvah of living in Eretz Yisroel.

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Borrowing with the Owner

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By: Reb Avi Lebovitz

Rav Hamnuna holds that the exemption of borrowing an animal with its owner only applies to a case where the owner is borrowed to work in the same labor as the animal, AND that the owner was there at the time that the accident occurred.

This approach in שאלה בבעלים is certainly the most rationale, because the reason for the exemption is that since the owner was there at the time of the accident doing the same work, he should have watched his own animal.

This is the approach of the GR"A in Aderes Eliyahu to explain the concept of שאלה בבעלים. However, the Meshech Chochma (Mishpatim 22:3) points out that this approach doesn’t at all work with the halachic ruling, rejecting Rav Hamnuna entirely. We hold that שאלה בבעלים is completely dependent on the time that the object was borrowed, the owner must have already been in the borrower service (or at least begin immediately), AND it makes no difference if the owner is working with the object that has been borrowed or in something else. What then is the rationale behind this halachah?

The Meshech Chochma suggests that the rationale is based on a Gemora in Megillah (26b) which states that the sanctity of a Shul would go away, not only through a sale, but even if it is given as a gift because: if they would not have received any benefit from the recipient, they would not have given it to him (therefore it is like a sale). Here too, it is not common to do such a huge favor for the borrower to lend him an object and work for him at the same time. Therefore, we assume that the owner is only lending and working in exchange for something that he received. Since the owner received something in exchange, the borrower is no longer a borrower, but has been downgraded to a renter, who is exempt if an unavoidable accident occurs.

This approach doesn’t explain those who hold that negligence is also exempt, and it also doesn’t explain why he is exempt for theft according to those who hold a renter is normally liable for theft (like a spaid custodian). Perhaps we will have to assume a “lo p’lug” (no distinction) to explain those opinions.

With this, we can somewhat explain the Gemora’s question (96a) whether שאלה בבעלים applies when the owner sends his messenger rather than going himself. Does the sending of a messenger also indicate that the owner must have received something significant in return for lending and supplying a worker, or do we only assume that when he himself goes? However, if this is in fact the question of the Gemora, it shouldn’t really be dependent on the halachah of שלוחו של אדם כמותו anywhere else; it should be an isolated question regarding the assumption in this specific situation. Yet, the Gemora compares it to the general halachah of שלוחו של אדם כמותו by the annulment of vows.

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Kal Vachomer

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The Gemora states that something which may be derived through a kal vachomer (literally translated as light and heavy, or lenient and stringent; an a fortiori argument; it is one of the thirteen principles of biblical hermeneutics; it employs the following reasoning: if a specific stringency applies in a usually lenient case, it must certainly apply in a more serious case), the Torah may anyway take the trouble to write it explicitly.

The Bnei Yissoschar explains the reasoning for this: A kal vachomer is based upon logic. One might say that the reason this halachah (derived through a kal vachomer) is correct is because it is understandable to me; it makes sense. The Torah therefore goes out of its way to write it explicitly in order to teach us that the halacha is correct because the Torah said so; regardless of whether it is understood or not.

The Ra”n in Nedarim (3a) notes that this concept is applicable by a hekesh (when the halachos from one topic are derived from another one) as well. The Gemora in Bava Metzia (61a) states that it also applies to a gezeirah shavah (one of the thirteen principles of Biblical hermeneutics; it links two similar words from dissimilar verses in the Torah).

According to the explanation of the Bnei Yissoschar, we could say that the concept should only apply to a kal vachomer, for that is based upon logic. The Torah would not find it necessary to state explicitly a halachah which is derived through a hekesh or gezeirah shavah, for they are not based upon logic at all, and it would be superfluous to write it.

The Yad Malachei writes that if the Torah does explicitly write a halachah which was derived through one of the thirteen principles of Biblical hermeneutics, we must treat it more stringently than an ordinary halachah. This is comparable to a Rabbinical prohibition, which has a slight support from something written in the Torah. Tosfos in Eruvin (31b) rules that such a prohibition is stricter than an ordinary one, which does not have any Scriptural support.

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Stipulation regarding Marital Relations

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The Gemora cited a braisa: If someone says to a woman that she is betrothed to him on condition that he does not owe her support, clothes, or marital relations, the kiddushin is valid, but the conditions are invalid; these are the words of Rabbi Meir. Rabbi Yehudah says: In monetary matters, the condition is upheld.

The Gemora explains that Rabbi Yehudah holds that one can make a condition modifying the obligations stipulated by the Torah regarding monetary law.

This would explain why Rabbi Yehudah holds that the condition is valid when he stipulated that he does not owe her support or clothing; however, why is it valid when he stipulates that he will not have marital relations with her? This is not a monetary law!?

Rashi, because of this, writes that the husband remains obligated to have marital relations with her, for this is not a financial right. Depriving a wife from relations would cause her physical distress and therefore the condition is void.

The Mishnah Lamelech challenges this from a Gemora which states that one can say to his fellow, “Hit me and you will be exempt.” Evidently, one can waive physical anguish! Furthermore, we find that a woman can release the husband from his marital relations!?

Some answer that Rashi himself, cited in the Shitah Mikubetzes in Kesuvos (56a), states that the condition is void, for we assume that a woman will not waive her rights regarding anything which causes physical anguish; however, if she explicitly forfeits those rights, they are forfeited.

Rabbeinu Chananel holds that a man may stipulate on marital relations, and a wife can waive her rights to it as well. This is because the pleasure of relations belongs to her and it would be regarded as a financial right.

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Fly like a Bird

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The Gemora cites a braisa: If a husband says (this is your get), “On condition that you go up into the sky,” “that you go to the depths of the earth,” “that you swallow a reed of four cubits,” “that you bring me a reed one hundred cubits long,” “that you walk over the Great Ocean with your feet,” if the condition is fulfilled, the get is valid; if not, the get is invalid. Rabbi Yehudah ben Teima says: Something such as this is a get. He said the following rule: Any condition that cannot eventually be fulfilled and the husband stipulates at the outset, he is just doing that to pain his wife, and the get is therefore valid.

There is another case brought down in the Tosefta: If the husband said, “On condition that you fly in the air.”

Reb Yosef Engel in Gilyonei HaShas asks: Isn’t this something that is possible? Don’t we find such an occurrence by Alexander the Great? And in today’s age (of Reb Yosef Engel), people fly in the air using air balloons!?

He answers that the language “fly” connotes “by himself,” similar to a bird, and floating in the air using exterior devices is not what he had in mind. A condition must be fulfilled according to the language of the stipulator!

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Samson and the Lion

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It is written [Shoftim 14: 5 – 6]: And Shimshon and his father and mother went down to Timnah, and they came to the vineyards of Timnah, and behold, a young lion roared towards him. And there rested on him a spirit of Hashem, and he rent it as one would rent a kid, although he had nothing in his hand, but he did not tell his father and mother what he had done.

The question is asked: How did his father and mother not see what he did? The verse explicitly states that he went together with them!?

The Vilna Gaon answers based upon our Gemora, which states that that we tell a nazir, “Go around and do not come near the vineyard,” for we are concerned that the nazir will eat from the grapes.

Accordingly, it can be said that when Shimshon, who was a nazir, came across the vineyard, he immediately separated from them in order not to stumble by the vineyard. It was at this time that he met up with the lion.

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Pareve Bread

by: Rabbi Yechezkel Khayyat

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Bread - only Pareve?

The Gemora introduces the prohibition on producing and eating meat or dairy bread. The Tur and Shulchan Aruch discuss this prohibition at length in YD 97. Below are a number of issues related to this topic.

Rationale

The Gemora explains that these breads are forbidden due to a concern that one may eat the bread with meat of milk. This is true even if the bread was baked with bird fat, even though bird meat and milk is only Rabbinically prohibited.

The Poskim question why this is not a gezeirah l’gezeirah – a Rabbinic decree applied to a Rabbinic decree.

The Pri Megadim (Sifsei Da’as 97:1) answers that bread is such an essential staple that indiscriminately eating bread with meat or milk – i.e., assuming it is pareve – is so pervasive and common as to be certain. Therefore, the Rabbinic prohibition on a milk and bird meat mixture includes the prohibition of such bread.

Other Applications

The Taz (YD 97:1) applies this prohibition to other essential foods that are assumed pareve, including spices. Therefore, the Taz says that if one had a spice grinder which was used as pareve, and then one ground meat in it, it may not be used for any spices, even for use with meat.

Exceptions

The Gemora (Pesachim 36a) allows one to make such bread when made k’ain tura – like an ox. Rashi says this means that when one bakes only a small amount, which will be eaten in one meal, we are not concerned that it will be accidentally eaten with the wrong type of food, and is therefore permitted.

The Rif says that this means that if the bread baked has a distinctive shape and/or appearance, we are not concerned that one will eat it with the wrong food. For example, a muffin type of bread, or bread with obvious cheese or meat in it, would be permitted.

The Rama (YD 97:1) says that this is why it is customary to bake bread with milk for Shavuos, and with fat for Shabbos, since the bread looks different, and only a small amount is baked this way.

Taste Once Removed

The braisa says that if one coated an oven with fat, one may not bake bread in it until he burns out the fat.

The Rishonim discuss why simply cleaning the fat from the surface is not sufficient. The Rashba says that cleaning the surface is sufficient, but the braisa gave the more common action of burning it out.

Tosfos (Pesachim 30 Dilma) says that since the fat is so hard to clean at the surface, we assume that cleaning the surface will not be done thoroughly enough, and therefore one must burn it out.

The Poskim discuss whether the case of the oven whose surface is cleaned out is a case of nat bar nat – an embedded taste that is one step removed. If it is, the question and answers given by the Rishonim may indicate their position on whether one may intentionally create food that is nat bar nat for eating with meat or milk. See Yalkut Yosef YD 89, footnote 35.

Coffee Breaks

The Mishna discusses at what point in the work day a worker can eat from the food he is harvesting. Most Rishonim read the Mishna and Gemora as saying that from the Torah, while the worker is working with the fruit – until it is harvested – he may eat, while the Sages allowed them to eat during breaks between sections of the vineyard.

The Rambam (Sechirus 12:2) says that from the Torah a worker may only eat after he has harvested, since before then he will be wasting work time on eating. The Sages allowed the workers to eat before the harvest is fully done, during breaks between sections, to limit the break time taken once the harvest is done.

The Rambam’s text in the Mishna seems to be like the Rif’s - that one may eat only “b’shas gmar m’lacah” - at the time of the end of work, as opposed to our text - “b’shas m’lacha” - at the time of work.

The Maggid Mishnah says that the Rambam’s position is similar to Rashi’s. Rashi says that the Mishna says that a worker may not take a break from his work in order to eat, indicating that eating out of the permitted time is prohibited due to idling from the required work. See Drisha HM 337:4 for further details on the positions of the Rambam and Rashi. See Even Haezel for an alternate explanation of the Rambam’s position.

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Unenforcable Obligations

Rava explained that although one who muzzles an ox is punished with lashes, and therefore is not forced by the court to pay the ox’s owner the damages of the withheld food, he is still fundamentally obligated to pay. Rava compares it to the case of one who paid his mother an animal in exchange for relations with her. Although the son is killed, and we therefore the court cannot enforce his obligation to pay his mother, if he did so, he fulfilled a contractual obligation, and the animal is unfit as a sacrifice.

Rava made the same statement (Bava Kamma 70b) in relation to one who transferred a stolen animal to a customer on Shabbos, concurrent with a violation of Shabbos. Although the court cannot enforce the sale, it is valid, just as the son’s payment to the mother is considered a bona fide payment.

The Rishonim discuss the extent of Rava’s statement. The Raavad quotes those who say that this applies only to obligations explicitly taken. In the case of paying his mother, the son obligated himself to pay, and in the case of the sale of the stolen animal, the thief entered into the sale.

The Raavad disproves this from our Gemora, where Rava is discussing the obligation of the thresher to feed the ox. This does not seem to be an instance of anyone explicitly undertaking an obligation, yet the Gemora applies Rava’s statement.

Rav Chaim Soloveichik (Chidushei Rambam Me’ila 8:1) states that while the obligation to allow a worker to eat from the food he’s working with is a monetary obligation, the prohibition of muzzling an ox is fundamentally a religious obligation.

The Kehilos Yaakov (BK 13:4) suggests that our Gemora therefore indicates that when the Torah stipulated a religious obligation, any resultant recipient of monetary payment is considered a bona fide owner of that money. Therefore, the obligation of the thresher to the owner of the ox is still considered a bona fide obligation. He discusses whether one can apply this other religious obligations that require monetary payment (e.g., meats from a sacrifice given to Kohanim).

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Saving the Whales

by: Reb Avi Lebovitz

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The Gemora suggests a kal vachomer that would result in their being a mitzvah of preserving the life of animals. Although one may have a mitzvah to feed his own animals, the Gemora concludes that there is surely no mitzvah to support the animal (when it is no longer profitable), and certainly one is not obligated to support animals that are not his.

The Tosfos HaRosh asks in the name of Rabbeinu Meir: Why would we have thought differently? There should be an obvious challenge to this kal vachomer from the fact that one is not allowed to slaughter people, but may slaughter animals - this obviously shows that there isn’t any mitzvah to preserve the life of animals!?

The Tosfos HaRosh responds to this question by saying that we would have thought that this mitzvah would apply to animals that one is not allowed to slaughter, such as a bechor that is intermingled with an ox that is destined to be stoned (shor haniskal).

Aside from the actual question of the Tosfos HaRosh, the entire thought that one would be obligated to support animals and help them survive seems a little strange. Especially since in the end, the mitzvah of preserving a life only applies to a Jew and not to an idolater!?

The Biur Halachah (330:2) writes that one is obligated to help a ger toshav woman give birth because on a ger toshav, there is a mitzvah to preserve their life. He entertains the possibility that the Jew can even violate a Rabbinic prohibition to help the ger toshav give birth because when there is a mitzvah to preserve a life, the Rabbis did not issue their decrees. Based on this application of the mitzvah to preserve a life, the mitzvah goes beyond tzedakah; it compels one to actually take care of others and help them through physically challenging circumstances.

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Ma'aser on Purchased Produce

by: Reb Avi Lebovitz

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There is a fundamental argument between Rabbeinu Tam and Rivam quoted by Tosfos regarding the exemption from ma’aser on produce that Reuven sold to Shimon.

Rabbeinu Tam holds that if Reuven processed the produce prior to selling and it became obligated in ma’aser and assumes a status of tevel, by selling it to Shimon, the tevel status is removed and it is exempt once again. But if Reuven never processed it, when Shimon does the processing, he will be Biblically obligated in ma’aser because it is considered his own produce.

Rivam says exactly the opposite. If Reuven processed the produce prior to selling it, since it has become obligated in ma’aser and assumes a status of tevel, this status cannot be removed. Therefore, when he sells it to Shimon, Shimon will have a Biblical obligation to separate ma’aser. But if Reuven sold it to Shimon prior to processing it and it was processed in the home of Shimon, then it is not subject to a ma’aser obligation.

When the produce was grown by an idolater (assuming his acquisition in Eretz Yisroel will not remove the ma’aser obligation), the Gemora says in Bechoros (11b) that if the idolater processed them and then sold them to a Jew, they are exempt from ma’aser, but if the Jew processed them, they are obligated.

Rabbeinu Tam holds that if the produce was processed by the original farmer, it makes no difference if he were a Jew or an idolater, the buyer would be exempt. But, if they weren’t processed by the original farmer, the buyer would be obligated.

The Rivam holds that when the original farmer was an idolater, the halachah is exactly the opposite from when the original farmer would be a Jew. An idolater farmer who processes and sells would be exempt since it was processed by the idolater and it will remain exempt even after it is sold. But if an idolater farmer didn’t process it, it is not considered his at all, so that when he sells it to the Jew and the Jew processes it, it is obligated.

The greatest difficulty with Rabbeinu Tam is that produce that is tevel can be sold and revert back to being exempt from ma’aser (and then if sold back to Reuven would revert back to being obligated in ma’aser)! The greatest difficulty in the Rivam is that produce of an idolater is not considered to be his unless he processed it, so that if sold to a Jew, it is as if the Jew grew it himself and is obligated in ma’aser.

Another hybrid approach (possible Reb Chaim’s explanation in a Rambam) is that it is not dependent on who processed it, but rather what the intent was when it was processed. If Reuven processed it for personal use and it becomes obligated, nothing can remove that status of tevel (like the Rivam). If Reuven did not process it; rather he sold it to Shimon who processed it, then it is also obligated (like Rabbeinu Tam). Only if Reueven processed it with the intent of selling it to Shimon, it will be exempt.

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License to Lie

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Rabbi Moshe Menachem Liberman, a member of the Chicago Community Kollel discusses some of the halachos regarding the modification of the truth for certain purposes.

http://www.cckollel.org/html/parsha/bereishis/vayichi5764.html

“And they sent a message to Yoseph saying: Your father commanded before he died, saying: So you shall say to Yoseph: Please forgive now the transgression of your brethren, and their sin, for they did to you evil . . .” Vayechi 50:16-17. Rashi points out that the brothers modified the words of Yaakov Avinu in this matter in the interest of peace because Yaakov Avinu had not actually commanded thus.1 The Gemara learns from these pesukim that there is a license to alter the truth in the interest of peace.2 This freedom to alter the truth is actually mandatory and not merely an authorization to alter the truth.3 Before we look at this obligation to alter the truth in the interest of peace, it behooves us to examine the general restriction against altering it.

The Torah states in Parshas Mishpatim, “From a false matter you shall distance yourself.”4 Thus, halachic authorities hold that there is a biblical obligation to refrain from lying.5 Furthermore, Hashem exhorts us to speak the truth, as the Navi in Zechariah states, “Let one man speak with another in truth.”6

The threshold for establishing what constitutes a falsehood, though, is very low. A mere omission is considered an alteration of the truth.7 The Chofetz Chaim deduces this from our Gemora, which states:

Peace is important because even Hakodosh Boruch Hu altered the truth in the interest of peace. Initially the Torah writes [that Sarah Imeinu, after hearing that she will give birth to a son to Avraham Avinu, said], “[After I am old shall my skin become smooth] and my husband is old?”8 And afterwards it writes [Hashem (only) told Avraham Avinu that Sarah Imeinu had said], “and I am old?”9 The only difference between what Sarah Imeinu said and what Hashem told Avraham Avinu that she said, was that Hashem omitted the comment that she had made concerning Avraham Avinu.10 This omission, the Gemara said, was permitted only because it was done in the interest of peace.11 Thus, even a mere omission of part of an otherwise true statement is considered a falsehood to which we are commanded to keep our distance.12

Although merely omitting is considered a falsehood, when altering the truth in the interest of peace, it is preferred to an outright lie.13 Of course, if merely omitting would be insufficient then he should outright lie.14 This obligation to lie in the interest of peace, however, does not sanction swearing falsely.15 Additionally, one may not lie concerning things which have not yet happened.16

There are other times when it is also appropriate to lie. If a person is asked whether he is knowledgeable in a certain Mesechta, he may lie and answer that he is not when in fact he is.17 However, if he is asked in order to provide an answer to a halachic query or to teach, then he must answer truthfully, consistent with his expertise in the Mesechta.18 If a person is asked in the presence of disreputable people concerning the graciousness of his host, he may lie and answer that his host was not gracious.19

The contemporary halachic authorities also permit altering the truth in the following circumstances:
• People may answer, “I don't know” when asked about a matter that is supposed to remain secret.20
• Wealthy individuals may lie about their wealth if they fear “the evil eye” (ayin hara) or if they do not want to arouse jealousy.21
• If one fears that a package will be mishandled, it is permitted to write “glass” on it, even though it does not contain any glass.22
_______________________________________________________________________________________________________________________________
1 Rashi al Hatorah, Vayechi 50:16 (beginning with the words “Your father commanded”)
2 Yevamos 65b
3 Derishah al Choshen Mishpat 262:21
4 23:7.
5 Rabbi Shmuel Hominer, Eved HaMelech, Parshas Mishpatim 23:7:1 (citing SMa”G at Esay 107 and SMa”K 226) (4th ed. 1998); but see Rabbi Menachem Trivash, Orach Maysharim 9:1:1 (noting that this verse is only a restriction on judges and witnesses in the judicial context) (3d ed. 1968).
6 Mesilas Yesharim Chapter 11 (quoting Zechariah 8:16 and other sources).
7 Chofetz Chaim Hilchos Rechilus 1:8:14.
8 Vayera 18:12.
9 Id. at 18:13.
10 Chofetz Chaim Hilchos Rechilus 1:8:14.
11 Id.
12 Id.
13 Chofetz Chaim Hilchos Rechilus 1:8.
14 Id.
15 Id.; but see Chofetz Chaim Hilchos Rechilus 1:8:15 (noting that if there is a foreseeable loss to the other person it is questionable whether swearing falsely may be permitted).
16 Magen Avraham 156:2 (citing Sefer Chasidim 426); but see Mishnah Berurah 156:4 (commenting on Magen Avraham 156:2 that it is questionable); see Rabbi Shmuel Hominer, Eved HaMelech, Parshas Mishpatim 23:7:2 (explaining that the Mishnah Berurah does not understand why there should be a limitation as to when one may alter the truth in the interest of peace).
17 Shulchan Aruch Choshen Mishpat 262:21.
18 Be'er HaGolah al Choshen Mishpat 262:9.
19 Shulchan Aruch Choshen Mishpat 262:21.
20 Rabbi Doniel Yehuda Neustadt, The Weekly Halachic Discussion, 47 (citing Titen Emes l'Yaakov at 76 (quoting Harav S.Z. Auerbach and Harav S.Y. Elyashiv)) (2d rev. ed. 2002).
21 Id. (citing Titen Emes l'Yaakov at 78 (quoting Harav S.Y. Elyashiv)).
22 Id. at 48 (citing Titen Emes l'Yaakov at 66 (quoting Harav S.Y. Elyashiv, Harav Y.Y. Fisher, and Harav C. Kanievsky)).

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Hosting Guests is Greater than Greeting the Divine Presence

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“And Hashem appeared to him in the orchards of Mamrei, and he was sitting at the opening of the tent in the heat of the day.” What does, “in the heat of the day” mean?

Rabbi Chama the son of Rabbi Chanina says: That day was the third day after Avraham’s bris milah. Hashem came to him to see how he was doing. Hashem therefore took out the sun from its sheath, so Avraham would not be disturbed with guests.

Avraham sent out Eliezer to go look for guests, but he came back empty handed. Avraham replied to him: I do not believe you (that there are no possible guests). This is the source of what is commonly said in Eretz Yisroel: There is no credibility in slaves. Avraham went out and saw Hashem by his doorway. This is why the verse says, “Please do not go away from Your servant.”

Tosfos writes that since Avraham asked Hashem to wait until he brings the guests inside, this would indicate that hosting guests is deemed to be even greater than greeting the Heavenly Presence.

The question is asked: How did Avraham Avinu know this halachah? Perhaps greeting the Heavenly Presence takes precedence over hosting guests? [There is an answer to this given in the name of the Noda Beyehudah.]

What is so unique about this mitzvah that it overrides a Shabbos prohibition (as the Gemora in Shabbos 127a derives) and is even greater then receiving the Divine Presence?

Rabbeinu Yonah writes that one honors his friend because his friend is a creation of Hashem. When one honors the prince, in effect, he is honoring the king. This is the deeper understanding of receiving and hosting guests. When a Jew receives Jewish guests and honors them as princes, in essence he is honoring the King, Hashem.

The Maharal writes that one cannot really honor Hashem as one cannot see Hashem and live. By receiving and hosting guests, one draws closer to the Divine Presence.

The brother of the Maharal writes in Sefer HaChaim that by performing the mitzvah of receiving and hosting guests, one will be quicker to improve on his service of Hashem. A person will say to himself, “If I can do so much for my friend who is my guest, certainly I can perform the mitzvos in a more wholesome fashion.”

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A Pair of Drinks

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The Gemora relates that Rabbah was found (by the king’s messenger) in Pumbedisa. The messenger was staying in the same inn as Rabbah. They (the workers at the inn) brought the messenger a plate of food and two cups two drink, and they then took away the plate. He turned his face away. [Rashi explains that the fact that he had two cups had given the demons reason to help damage him (in a life-threatening manner, as is apparent from the Gemora below). This is as the Gemora explains at the end of Pesachim, that an even number of drinks can cause this.] The workers asked Rabbah: What should we do? It is the king’s messenger! [They realized that this was the messenger of the king, and did not want to injure him.] Rabbah said: Bring him a plate and one drink, and take away the plate and he will be better. [He advised to give him one more drink, as this caused his drinks to be a total that was an odd number, giving the demons no more reason to harm him.] They did this, and this helped the situation.

The Tosfos HaRosh asks: Why should there be a danger here for drinking a pair of drinks? The Gemora in Pesachim (110b) states that there is no concern regarding a guest, for he does not know how many cups the host will offer him; it is therefore regarded as if he drank one and changed his mind and drank another. These two cups do not combine and there is nothing to worry about!?

He answers that the king’s messenger, on account of his prominence, is regarded as the host, since they will provide for him anything that he requests. It would therefore be a danger for him to have a pair of drinks.

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Blessing before the Torah

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The Land Became Lost

Rav Yehudah said in the name of Rav: What does the verse mean when it says: Who is the man who is wise and can understand this? This (the reason for the destruction of the Second Temple) was asked to scholars and prophets and they could not explain it, until Hashem explained it Himself, as it says: And Hashem said that it is because they left my Torah. Isn’t the phrase “and they did not listen to My voice” the same as the phrase “and they did not go in its ways”? Rav Yehudah explains in the name of Rav: This means that they did not recite a blessing before learning Torah.

The Chanukas HaTorah explains: The Gemora in Brochos (48b) asks: From where do we derive that one should recite a blessing prior to studying Torah? Rabbi Yishmael says: It is derived by means of a kal vachomer. If a blessing is recited before partaking in “sustenance for the moment” (food), it certainly follows that a blessing should be recited on “eternal sustenance”! The Gemora (Brochos 38a) also states: Prior to reciting a blessing, the land belongs to Hashem; after the blessing is recited, the land is given over to man.

Accordingly, it can be said that if they refrained from reciting a blessing before studying Torah, it is clearly evident that they did not recite a blessing before eating as well. For if they would have made a blessing before the consumption of food, they certainly would have made a blessing before studying Torah (based upon the kal vachomer). Since they didn’t recite a blessing on their food, the land became lost, for prior to a blessing, the land belongs to Hashem.

They didn’t Recite the Blessing on the Torah “First”

Rav Yehudah said in the name of Rav: What does the verse mean when it says: Who is the man who is wise and can understand this? This (the reason for the destruction of the Second Temple) was asked to scholars and prophets and they could not explain it, until Hashem explained it Himself, as it says: And Hashem said that it is because they left my Torah. Isn’t the phrase “and they did not listen to My voice” the same as the phrase “and they did not go in its ways”? Rav Yehudah explains in the name of Rav: This means that they did not recite a blessing before learning Torah.

The language of the Gemora is that they didn’t recite a blessing on the Torah “techilah.” What is that word coming to exclude? We do not recite any blessings after we conclude learning Torah! (The Levush says that the two blessings that we recite before studying Torah are actually “one before” and “one after,” except that we never finish studying Torah, so the Rabbis instituted that both blessings should be recited beforehand.)

The Orach Yesharim explains: When a person receives a present, he values both the gift and the giver. Even if the gift is a small one, he will value it, if it was given to him by a prominent person. Similarly, he will appreciate something given to him by an ordinary person, if the item is a valuable one.

The Torah is praised with both elements. It is written: Ki lekech tov nasati lachem, the Torah itself is valuable, and that it is being gifted to Klal Yisroel from Hashem.

This could be the explanation as to why we recite two blessings before studying Torah. The first brocha is asher bachar banu, Hashem chose us; Torah is special because Hashem has given it to us. The second bracha is v’chayei olam nata b’socheinu, Torah is precious because of its inherent value.

This is the meaning of our Gemora: They appreciated the value of Torah, and therefore, they recited the second blessing. However, they were not fully appreciative of the Giver of the Torah, and they therefore refrained from reciting the first blessing on the Torah. This is why the Torah did not continue to flourish with their children.

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Every Step of the Way

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The Gemora records a story which demonstrates the greatness of Rabbi Chiya. The Gemora relates: When Rabbi Chanina and Rabbi Chiya were once in an argument, Rabbi Chanina said to Rabbi Chiya, “How can you dispute me? If, Heaven forbid, the Torah were forgotten in Israel, I would restore it by my deliberations.” Rabbi Chiya rejoined, “How can you dispute me, who I caused that the Torah should not be forgotten in Israel? What did I do? I planted flax from which I made nets to capture deer. The meat from those deer I would give to poor orphans and I would convert their skins into parchments upon which I would write the five books of the Chumash. I brought these to a community where there was no Torah study and I would teach each one of five children one of the five scrolls. I would also teach orally each one of six youngsters one of the six orders of the Mishna. I would tell each of these young pupils, ‘Teach the others what you have learned before I return to see if you succeeded.’ It was because of this that I said that I caused that the Torah should not be forgotten in Israel.”

The Maharsha explains why it was necessary for him to go to such great lengths: Rabbi Chiya was determined that every step of the way be done purely for Heaven’s sake, and no person should be deriving any profit. It was for this reason that he could not simply go to a store and buy parchment. Even the meat of the animal, whose skins he used for parchment, was donated to needy orphans. It was only on account of such meticulous attention to every detail of the process that he could be certain that Heaven would bless his efforts with success.

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Thirty-one Hour Shabbos

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There is an obligation to add on to the Shabbos at its onset and upon its conclusion.

The Rosh writes that we do not know the exact amount that one is required to add.

The Arizal writes that the total amount of Shabbos, including the additions at its onset and upon its conclusion, should be thirty-one hours.

It is unclear where this amount comes from. Some say that a hint to this can be found in the fact that the Rambam counts the mitzvah of Shabbos as the thirty-first mitzvah in the Torah.

The Bnei Yissochar suggests the following possible reason for this. Shabbos is referred to in the Torah as a day of holiness. We find that a fifth is added to holy articles. An ordinary Shabbos day would consist of twenty-four hours. If we would add a fifth, we would have thirty hours.

Our Gemora teaches the following: Rav Pappa notes that by the fact that the braisa ruled that a kor constitutes an excessive burden for a boat, and that three kors are regarded as an excessive burden for a large ship, it can be derived that an average boat carries a load of thirty kors (for the Mishna taught us that 1/30th more than a usual load will be regarded as an excessive load).

Accordingly, we can say that we desired to add on to the Shabbos an addition that would not be regarded as an excessive burden. If the regular Shabbos day is thirty hours, one additional hour is added, for more than 1/30th would be regarded as excessive. It is because of this that the total amount of hours of Shabbos observance, according to the Arizal, is thirty-one!

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The Designation of Money and the Timeliness of a Mitzvah

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The Gemora cited a braisa: The Purim collections must be distributed for Purim (and nothing else). The local collections belong to that town only, and we are not required to be so precise in the matter (how much is needed for Purim, and how much the poor of the city needs), but calves are purchased in abundance, slaughtered and eaten, and the surplus goes to the charity fund. Rabbi Eliezer said: The Purim collections must be used for Purim only, and the poor may not even buy straps for their shoes, unless it was stipulated in the presence of the townspeople that such shall be granted; these are the words of Rabbi Yaakov, who said it in the name of Rabbi Meir. Rabban Shimon ben Gamliel is lenient in the matter (and allows the poor person to use the charity funds for other uses besides the Purim feast). [We may derive from here that Rabbi Meir holds that we cannot deviate from the owner’s intent.]

The Gemora notes that this braisa does not prove that (whoever deviates from the owner’s stipulation is regarded as a thief), for perhaps there too, the reason is that the donors gave the charity only that it should be used for Purim, and not for any other purpose? [Regarding charity funds, there is a significant difference between the two purposes, whereas the two routes discussed in our case are not significantly different than each other, for one is not more dangerous in any way than the other.]

The Chavos Yair quotes a Sefer Chasidim, who derives from this Gemora that if one sends his fellow a gift of food to be eaten on Shabbos, it is forbidden for the recipient to eat it during the weekdays. If he has leftover, he should let the rest of household partake in it, but only on Shabbos. If the donor explicitly stipulated that he should be the only one to eat from it, he may not give it to others.

It would seem from our Gemora that this is not merely an act of piousness; but rather, it is halachically mandated. We can extrapolate further that if one gives money or wine to his fellow and he tells him that is should be used for Kiddush, he must use it for Kiddush, and nothing else. It would be forbidden to buy fish for Shabbos with this money, for Kiddush is a Biblical mitzvah, and eating fish on Shabbos is merely a Rabbinic one.

However, according to the prevailing custom that money is given to Torah scholars, and they are told to use it for Shabbos and Yom Tov, that is only out of respect, but they are not actually being particular as to what it should be used for; in such cases, they could use the money for whatever they desire.

Reb Yosef Engel cites the following Yerushalmi: If one vows to bring a flour-offering on Yom Tov, he should not bring it on a weekday. This is why the seforim write that a transgression committed on Shabbos is more severe than one committed on a weekday, for the holiness of the day plays a role. So too it may be said regarding the performance of a mitzvah; There will be a greater reward for a mitzvah performed on Shabbos or Yom Tov.

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Torah Teachers Cannot be Idle

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by: Rabbi Yechezkel Khayyat

The Gemora introduced the concept of workers who carry heavy bundles. Since they need to stay in shape for such strenuous work, when they are idle, it is a loss for them, and therefore an employer must pay them full wages even for idle time.

The Rosh (3), as well as other Rishonim, apply this to Torah teachers. If one hired a Torah teacher for his son, but the son fell ill, the employer must pay the Torah teacher his full wages. When a Torah teacher does not teach, this leads him to forget his knowledge, and not be as sharp as when he is teaching. Therefore, idleness is a loss for him, and he gets paid full wages.

The Ashri Notes questions this Rosh, and states that if the teacher is not employed to teach, this does not preclude him from still learning, to hone his knowledge and intellectual skills.

However, the Pilpula Charifta (10) explains that the work involved – and consequent sharpening of knowledge and skills – increases when one has a student, compared to one who learns on his own. If the employer can provide the teacher with a similar student, he must teach him, but if he does not, his own personal learning does not adequately replace the loss of not teaching.

The Tur (HM 334) rules like this Rosh. The Shulchan Aruch (HM 335:1) also follows this Rosh, but the Rama adds that if the court sees that this teacher is pleased by not having to teach, he is not paid his full wages.

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Halachos of Interest

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Punishment of Ribbis
By: Hakhel

What prevents one from arising at T’chiyas HaMeisim? The Chofetz Chaim (ibid.) quoting Chazal (Sotah 5A) states that the sin of gaivah (arrogance) prevents a person’s earth from moving during T’chiyas HaMeisim. Additionally, lending money with interest prevents one from arising (Pirkei D’Rebbe Eliezer 33). Even if a Heter Iska is used, the Chofetz Chaim writes, one must make sure that it is properly completed in order for it to be valid.

We must advise that there are a number of improperly worded Heter Iska documents in current use which are completely invalid, rendering loan transactions made through them bone fide ribbis. For example, the phrase “in lieu of the sharing of profits and losses,” or “it has been agreed… (followed by language which does away with the sharing of any form of losses)” voids the Heter Iska. Additionally, language which provides that “these payments will continue until the original loan is paid in full” (which has the effect of guaranteeing payment of the principal) voids the Heter Iska, as well.

EVERYDAY CASES INVOLVING INTEREST
By: Rabbi Doniel Neustadt

Although the Biblical prohibition against charging interest (ribbis) on a loan is well-known, few people are aware of the many applications and ramifications of the laws of interest. Transgressing these laws could result in the violation of up to six negative commandments according to the Rambam, so it is imperative that we examine some everyday situations where the laws of interest apply.

SOME FORBIDDEN FORMS OF BORROWING
A loan may not be made with conditions which will benefit the lender. He may not stipulate that in exchange for the loan, the borrower should patronize him, refer others to his or another person's business, be given a job, or make a donation to tzedakah. It is permitted, however, to lend money with the stipulation that the borrower will accept a job offer or take a course, etc., if the lender's aim is solely to benefit the borrower or to ensure that his loan will be repaid.

It is forbidden to lend money to a handyman on condition that he will work for the lender at a lower wage.

It is forbidden to borrow another person's credit card to make a purchase on which the borrower makes monthly payments with interest. Similarly, it is forbidden to borrow another person's credit card to obtain a cash advance. These transactions are forbidden because legally, the owner of the card is responsible for the payments. In effect, it is as if the borrower is borrowing money from the credit-card owner and then repaying him the principal plus interest.

It is permitted to borrow another person's credit card (when no interest is paid) even though the credit-card owner benefits from the borrower's purchase by earning mileage, etc.

It is forbidden to lend money on condition that the borrower will (at a later date) lend the lender money for a longer period of time or a larger amount of money than the present loan entails. It is debatable if the lender can make that type of condition if the amount of money and time will be the same as those of the present loan.

It is forbidden to charge extra money for a post-dated check, since the person issuing the check is actually paying interest for the privilege of delaying payment.

A form of ribbis of which many people are not aware is the case of two people agreeing to an uneven exchange of jobs or chores. For instance, a teacher should not say to a colleague, “I will teach your period if you will teach mine” if the two periods being exchanged are not exactly equal, both in the length of time and in the difficulty of work entailed. Similarly, one may not say to his friend, “I will paint your house if you will paint mine,” if the two houses are not exactly even in size and in the amount of work involved.

It is forbidden to tell someone, “Have a meal with me, since I ate at your house last week.” This appears to be payment of debt, and since one might give his friend a more elaborate meal than the meal he received, it may be perceived as ribbis. Some poskim, however, permit saying, “Come to my house for lunch, and I'll eat lunch at your house next week”, while other poskim prohibit this as well.

Note: It is important to remember that in some of the cases in which it is prohibited to charge interest, a Heter Iska (a partnership agreement) can be drawn up by a competent rabbinic authority which allows the transaction to be carried out in a halachically permissible manner.

SOME FORBIDDEN FORMS OF REPAYMENT
The prohibition of ribbis is not limited to monetary payments. A favor or a benefit of any sort which the lender receives from the borrower may fall into the category of interest. There are several basic rules which govern the extent of this prohibition:

a. A borrower may not extend a favor to a lender just because he got a loan from him. If the borrower would not have done the favor otherwise, it is forbidden to do the favor.

b. The borrower may not do a favor for the lender in public even if he would have done the favor regardless of the loan.

c. When the relationship between a borrower and a lender is long established and the borrower has previously granted public favors to the lender, such a relationship may continue even after a loan takes place.

SOME APPLICATIONS OF THESE RULES
A borrower may not praise or bless a lender for lending him money or for extending a payment deadline. Some poskim even prohibit saying a simple thank-you, while others allow a simple thank-you.

A borrower may not buy a lender an aliyah in appreciation for a loan. A borrower may not send mishloach manos to a lender, tutor a lender or his child in the study of Torah without compensation, offer him charity, sell him goods or offer a service below market price, or buy goods from him or pay him for a service above market value, unless he would have done so regardless of the loan.

A borrower may invite a lender to a wedding even if he would not have invited him were it not for the loan.

Institutions, e.g., yeshivos, shuls, etc. may honor an individual who has loaned them money, provided that the honor was not a condition for granting the loan.

It is permitted for a borrower to give a wedding gift to the son or daughter of a lender, even if he would not have given a gift were it not for the loan. The gift must be an item which the groom's/bride's father would not normally purchase for his child.

A borrower may extend to a lender a common courtesy, such as changing money for him. A lender, though, may not (strongly) request a favor from a borrower, even if it is merely a common courtesy.

Note: All non-financial benefits and favors are prohibited only while a loan is outstanding. Once a loan is repaid, this type of ribbis prohibition no longer applies.

INTEREST (RIBBIS) WITH A CORPORATION
QUESTION: Although it is explicitly forbidden for an individual to charge or pay ribbis, does the prohibition of ribbis apply also to corporations? There is some misunderstanding regarding this halachah. A lenient ruling by Harav M. Feinstein holds that a corporation may pay ribbis for deposits, loans, or credits which it receives, even if the corporation is totally owned by Jews. The reason for the leniency is that a “borrower” is halachically defined as someone who has personal responsibility to pay a loan. When a bank or another corporation is the “borrower”, the loan is guaranteed by the company's assets, but not by any individual. Thus there are no Jewish “borrowers” and ribbis may be paid by the bank or the corporation.

This ruling of Harav Feinstein has been accepted by some poskim and rejected by others. Obviously, if possible, a proper Heter Iska should be made before drawing interest from a Jewish-owned bank. If it is difficult to do so, there are poskim who allow taking the interest, as per Harav Feinstein's ruling. [Note that a Heter Iska does not allow a Jewish-owned bank to offer free gifts to depositors if the gift is chosen and delivered at the time of deposit, since such gifts are a form of ribbis.]

Under no circumstances, however, is it permitted to borrow money from a Jewish-owned bank or corporation. Since the borrower is an individual who accepts personal responsibility to repay the loan, the above leniency does not apply.

Similarly, lending money to a Jewish-owned corporation with the personal guarantee of repayment by the owners would be prohibited even according to Harav Feinstein's lenient opinion.

For the above reason, it is prohibited to buy shares in a publicly traded bank which has a majority of Jewish owners and does not use a proper Heter Iska when borrowing money from Jews. A company in which most of the shareholders are not Jewish but the Jewish minority has significant enough holdings that their opinion carries weight in management decisions, is also considered a Jewish company according to the opinion of many poskim.

HETER ISKA
We have previously mentioned the concept of Heter Iska. While it be would be almost impossible to explain the logic behind this very complicated transaction, suffice it to say that Heter Iska is a tool--debated, revised, and perfected over many centuries-- with which a lender may lend money to a borrower and be halachically permitted to collect interest on the loan. It is a legal document which transforms the loan [or part of it] into an investment, with a remote chance of loss of principal to the lender. Since ribbis is only forbidden when a fully guaranteed loan takes place, this tool allows the lender to earn “profits” from his “investment” as opposed to “interest” from a “loan”, and it is therefore permitted. Heter Iska transactions are very common today and, when done under the auspices of an expert in these matters, are used in many business dealings in a permissible manner.

We must, however, point out an important reminder. According to the opinion of most poskim, including the foremost poskim of our generation, a Heter Iska is valid only if the money is being borrowed to invest in a business or in a property, or if the money being borrowed will free other money to be used for a business transaction. A person who borrows money to pay for his daughter's wedding, for instance, or for any other ongoing expenses, and does not have any profit-generating holdings or assets, may not use a Heter Iska to borrow money.

Many people are not aware of this limitation and are constantly borrowing money, or over-drafting their bank accounts from Jewish-owned banks, relying on a Heter Iska which is unacceptable according to most views. Certainly, one who is scrupulous and is generally not lax when it comes to other mitzvos of the Torah, should be aware that this transaction is not valid according to the majority opinion, and that it may be Biblically prohibited. When this situation arises, an expert Rav should be consulted, since there are methods that can be utilized in order to make this transaction valid according to most poskim.

NEIGHBORS BORROWING GOODS
QUESTION: Does the prohibition of ribbis apply to neighbors borrowing goods from each other? The prohibition of ribbis applies to goods borrowed between neighbors. A neighbor who borrows two challos may return only two challos to the lender. If a 5 lb. bag of sugar is borrowed, only that amount may be returned. There are, however, several notable exceptions to this prohibition:

If the difference between the item borrowed and the item returned is insignificant to the degree which people generally do not care about, the prohibition does not apply; a slightly bigger challah, therefore, may be returned.

When neighbors have a type of relationship where they are in the habit of borrowing from each other without being careful to return everything they borrow, then the prohibition of ribbis does not apply. This is because the neighbors are not “borrowing” from each other; they are giving each other gifts. [Note that many neighbors do not have such a relationship.]

When the borrower is uncertain of the precise amount he borrowed, he may return an amount which is great enough to assure that the loan is paid up.

A neighbor who borrows an item from his friend may return that item exactly as borrowed, even if the price of the item has gone up in the interval. This is permitted because prices tend to fluctuate by small amounts and neighbors generally are not particular about such a small difference.

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Verbally committing to a Sandek or a Mohel

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The Rishonim discuss a case where a father committed to honor someone with part of the bris ceremony, either as a sandak or a mohel, and then changed his mind. (See Beis Yosef YD 264)

The Maharam says that since these commitments are routinely made and kept, the commitment is enforceable in court.

Rabbeinu Yechiyel limits this to a commitment made after the baby was born.

The Radvaz holds that if the commitment was made before the baby was born, he is not obligated to honor it at all, for this would have the status of selling something that is not yet in existence. However, if he told him this after the baby was born, since these commitments are routinely made and kept, he cannot retract from his words. He concludes by saying that it is a well established principle by us that a custom is extremely significant, and one should not break it.

He proves this from our Gemora, which states: Rav Papi said in Rava’s name: A mark of identification (which the buyers would mark if they planned on buying it) on the wine barrels can effect possession (although they left them in the possession of the seller). This proves that although a proper kinyan was not performed, the making of an identifying mark can effect acquisition based on the custom of that locality.

The Rosh disagrees and says that only a standard kinyan is enforceable.

Rabbeinu Tam says that if one committed to a mohel to do his son’s bris, this has the status of a verbal commitment, and one who does not keep it is considered untrustworthy.

The Pri Yitzchak says that committing to a mohel has the status of a small gift, since the father typically cannot perform the bris, and he is simply giving the right to choose the mohel. However, committing to a sandak is a large gift, since the father himself can do that, and he is giving that right to the sandak. Since it is a large gift, a verbal commitment would not be binding.

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Subjugating their Poor Brethren

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Rav Pappa said to Rava: My master should see how the rabbis pay the head tax for others, and then they work them excessively. Rava replied: I might have died without ever having told you this thing: Rav Sheishes said: The seal of bondage of these people lies in the king’s archives, and the king has decreed that he who does not pay his head tax should be made the servant of the one who pays it on his behalf.

Other Rishonim explain this Gemora differently: they say that the rabbis violated the prohibition of ribbis. This is because they paid the tax for their poor brethren, and by working them excessively, they were paid back more than what they laid out.

The Radvaz asks: How can the principle of “the law of the land is the law” trump the prohibition of subjugating a fellow Jew excessively?

He answers that since the excessive work is not regarded as money, for by law, they are obligated to serve them; the prohibition falls off by itself, for if there is no loan, there cannot be any ribbis.

The Ritva writes that by paying their taxes to the king, they acquire them as slaves until they are repaid; the money is not regarded as a debt at all.

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Paying and Lashes

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The braisa states: If a document contained a provision to collect interest (in a forbidden fashion), we give him a fine. Not only is he unable to collect the interest, but he cannot even collect the principle. These are the words of Rabbi Meir. The Chachamim say: He can collect the principle, but not the interest.

Shulchan Aruch (C”M 52:1) rules according to the Chachamim that the principle may be collected.

The Ketzos Hachoshen (38:1) asks: If we hold that when one violates a negative precept, he cannot be liable to pay even if he does not receive lashes (chayvei malkos shogegin); then how can the principle be collected? Behold, the borrower is violating the prohibitions of “You shall not impose interest upon him,” and “You shall not give interest to your brother”? If so, why should the borrower be liable to pay? [This is a type of kim leih bid’rabbah minei (whenever someone is deserving of two punishments, he receives the one which is more severe)!?]

He answers based on one opinion that holds that the borrower does not transgress the prohibition of giving interest until he actually gives it. Accordingly, we can say that the principle of kim leih bid’rabbah minei does not apply here, for the liability to pay and the action which would theoretically cause him to be liable for lashes are not simultaneous. In such types of cases, he will not be exempt from paying.

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Interest-Free Loans

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The Gemora quotes a different version of Rav Huna’s statement. Rav Yosef explained that the verse discussing lending states: if you will lend money to Ami – my nation, to the Ani – the poor one – Imach – with you. This verse teaches that the priority in lending is first to a Jew over a non Jew (Ami), then to a poor person over a rich person (Ani), and to a local poor person over a poor person somewhere else (Imach). Rav Huna says that the priority given to a Jewish debtor is even when the non Jewish debtor will pay interest.

The Pnei Yehoshua discusses what the halachah would be in a case where if he would lend money with interest to a gentile, he would gain substantially. Is he still required to lend to a Jew without interest?

He questions the basis of the halachah: Do we not say that whenever a person would suffer a loss, his needs take precedence over others?

He answers that it is different here, for the mitzvah to lend to a poor person is a mitzvah of tzedakah; one is required to do whatever is in his means in order to sustain his fellow Jew. One must be concerned about his own losses only when the mitzvah regarding his fellow is to prevent him from a loss.

The Megilas Esther writes that one is obligated to lend to a Jew interest-free even if he has the possibility of lending to a gentile for a substantial amount of interest. This is because the Jew is not losing; he is merely not gaining.

The Shaar Hamishpat disagrees with this, and Ahavas Chesed cites several different opinions with respect to this issue.

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Don't Call him Evil

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The Gemora states: If he calls him a evil person, he (the insulted person) may descend against his life (he is permitted to hate him to such a extent that he may attempt to reduce his income).

Rashi explains this to mean that the insulted person may fight with him as if the libeler hit him, and it is as if he was coming to kill him. Furthermore, Rashi heard that he can compete against him in his line of business in an attempt to decrease his income.

Rashi asks that it is hard to understand how the Chachamim would allow this person to take revenge.

Some answer that here it is permitted because he suffered personally and he was subject to a public humiliation. The Chafetz Chaim, however, writes that it is unclear if this is the accepted halachah, and therefore, one should be stringent in the matter and not take revenge.

Others answer that it is permitted because if people think that he is indeed a evil person, his income will suffer tremendously, for people will not have compassion on him.

Tosfos writes in the name of the Gaonim that it is permitted to burn one-third of his grain. Tosfos concludes that this is bewildering, for where is the source for this?

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Can you Pay Someone to be a Cosigner for a Loan?

by: Reb Avi Lebowitz

There is a disagreement between the Taz (170:3) and Nekudas Hakesef whether one can hire someone to be a cosigner on a loan where the cosigner has full responsibility as much as the borrower himself (areiv shluf dotz).

The Chochmas Adam in his sefer Binas Adam (sha'ar mishpat tzedek 2) points out that this discussion took place before the Ritva on Bava Metzia was accessible. However, now that it is accessible, the answer is resolved. Rava had stated that Reuven may pay Shimon to go convince Levi to lend money to Reuven because Reuven is only paying Shimon for s’char amirah (payment for talking). The Ritva asks: Why does the Gemora need to permit it based on this rationale, it should be permitted anyway based on the other rationale that the Gemora suggests that the Torah only forbids interest that is paid directly from the borrower to the lender? The Ritva answer that we are referring to a case where Levi refuses to lend money to Reuven, but is willing to lend it to Shimon, who then goes and lends it to Reuven. Even though it emerges that, technically, Shimon is the one who lends to Reuven and therefore when Reuven pays him, it is ribbis that is paid from the borrower to the lender; it is nonetheless permitted since it is only s’char amirah.

The Binas Adam learns from the Ritva that it is only is a situation where Reuven doesn't request of Shimon to be an areiv shluf dotz; rather Shimon decides on his own to borrow from Levi and lend it to Reuven. But, if Reuven would be paying Shimon to be such a high level guarantor, it is as if he were hiring Shimon to borrow from Levi and then lend to him, which would constitute a prohibition of paying ribbis, since it is no longer just s’char amirah.

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The Famous Taz

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Estate Money and Interest

The Gemora allowed an administrator of an estate to invest the orphan’s money in an investment with favorable terms for them, although this is generally Rabbinically prohibited.

The Shulchan Aruch (YD 160:18), based on the Rambam and Rosh, applies this license to all Rabbinically prohibited interest, and extends this to money of charity, money donated to Torah scholars, and money donated for use in a synagogue.

What did the Torah Permit?

The Gemora quotes a statement of Rav Huna that prohibits charging interest from a non Jew. The Gemora debates why this is prohibited, and how to reconcile this statement with the verse and Mishna that seem to permit such a loan.

Tosfos (70b Tashich) asks why the Gemora was concerned with reconciling this Rabbinic law with the verse and Mishna, and answers that the Gemora assumed that the Sages would not prohibit something the Torah permitted.

The Taz states in numerous places that although the Sages have leeway to enact their own new prohibitions, they may not prohibit something explicitly permitted by the Torah.

The Taz in YD 117:1 applies this to the Rabbinic prohibition on commerce in forbidden foods. Since the Torah explicitly allows one to sell neveilah meat to a non Jew, the Rabbinic prohibition had to allow for such commerce when one chanced upon the forbidden food, so as to not fully prohibit an act the Torah explicitly allows.

The Taz in OC 588:5 discusses a question raised by earlier poskim. We find the Sages prohibited the performance of numerous mitzvos on Shabbos (e.g., Shofar, Lulav), due to a concern of one accidentally carrying to perform the mitzvah. Why did the Sages not apply this to bris milah, prohibiting a bris milah which falls on a Shabbos.

The Taz says that since the Torah explicitly said that one must perform a bris milah on the eighth day, even if it is a Shabbos, the Sages could not prohibit it.

The Chavos Yair 142 challenges this Taz from our Gemora, among others. Our Gemora is an instance where the Sages prohibited an action explicitly permitted by the Torah – i.e., charging a non Jew interest on a loan. Therefore, the Chavos Yair rejects the Taz’s thesis.

Later poskim dispute the Chavos Yair’s disproof. The Shla, quoted by the Chasam Sofer (YD 106), says that the Sages did not prohibit charging a non Jew interest, since that is indeed explicitly permitted by the Torah. Instead, the Sages prohibited a Jew from lending to a non Jew at all, and only thereby precluded the Jew from receiving interest from him.

The Chasam Sofer (YD 106, 109) says that Tosfos themselves (70b Tashich, 64b v’Lo) seem to support the Taz, and actually explain the Gemora based on his principle. According to Tosfos, when the Gemora challenged Rav Nachman from the verse, the Gemora was stating that since the Torah explicitly allowed a Jew to charge a non Jew interest, the Sages cannot prohibit it. The Chasam Sofer says that the reason the Sages were allowed to do so is due to the exclusions built in to their prohibitions (for livelihood, or for a Torah scholar). Just as the Sages allowed commerce in forbidden food when the Jew chanced upon it in order to avoid explicitly prohibiting an act allowed by the Torah, so too, the Sages allowed charging a non Jew interest in some cases, to avoid explicitly such a prohibition.

Rav Moshe Feinstein (Igros Moshe OC 1:134) says that the Gemora’s answer that we read the verse only as tashich – explicitly allowing a Jew only to pay interest, means that the Torah never did explicitly allow a Jew to charge interest, giving the Sages the leeway to prohibit it. See Rabbi Akiva Eiger YD 117 on the Taz for more details.

Tosfos (70b Tashich) says that nowadays we lend money to non Jews with interest. Tosfos advances three reasons for this behavior:
1. The economic situation and lack of other professions available to Jews makes the interest necessary for the creditor’s basic needs, in which case it is permitted.
2. Ravina’s answer understood that the prohibition was to limit our interactions with non Jews. Since we are forced into such interactions due to economic circumstances, there is no added interaction that will be prevented by refraining from charging interest.
3. The second version of Rav Huna’s statement does not prohibit interest from a non Jew at all, but only prioritized an interest free loan to a Jew above it.

The Shulchan Aruch (YD 159:1) rules that charging interest from a non Jew is prohibited by the Sages, unless the creditor needs the interest for his basic needs, or is a Torah scholar. However, the Shulchan Aruch says that it is permitted nowadays, based on the first two reasons of Tosfos (see Shach 2).

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Power of a Word

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The Gemora relates the following: Mar bar Ameimar said to Rav Ashi: My father does business this way. If the sellers would come to him and say that they did not make this anticipated profit, he would believe them (without imposing an oath upon them; in such a case, he would only receive half of the actual profit, and not the amount written in the document; this way, he would avoid any ribbis concern).

Rav Ashi said: This is fine because your father is alive (and he will waive the amount written in the document). However, if he would die and the orphans would have a document saying that the merchants owed them a certain amount of money, wouldn’t they have to pay? This statement (talking about the death of Ameimar) was like an “error proceeding from a ruler,” and Ameimar died.

The Gemora in Moed Katan (18a) records the following incident: The Sage Shmuel paid a condolence visit to his brother Pinchas, who had lost a child. He asked him why he allowed his fingernails to grow although it was permitted to cut them. The rebuttal of Pinchas, “If such a tragedy as mine had befallen you, would you also show such disregard for mourning?” is described by the Gemora as an example of “an error proceeding forth from the ruler” (Koheles 10:5). The result of this apparent slip of the tongue was that Shmuel himself soon became a mourner because “there is a covenant for the lips” — a spoken word has the power to effect fulfillment. As proof of this power Rabbi Yochanan cites the statement made by the Patriarch Avraham, on his way to offer his son Yitzchak as a sacrifice, to the two young men accompanying them. “Stay here,” he told them “and I and the lad will return to you” (Bereishet 22:5), and did indeed result in their both returning.

How can we derive from here that a person should be careful with his words; this brought about a positive result that Yitzchak was saved?

The Chasam Sofer answers that to Avraham, it was regarded as undesirable, since he was unable to fulfill the will of Hashem.

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Concealing his True Stature

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The Mordechai (Gittin 461) relates that Rabbeinu Tam once instructed a Kohen to pour him some water. This caused one of his students to inquire as to how he could allow a Kohen to serve him, being that the Yerushalmi states that whoever uses a Kohen for his own needs is in violation of the prohibition of me’ilah (since the Kohen is sacred). Rabbeinu Tam's response was that the Kohen who served him in 12th century France was without the clothing of the Kohen and, therefore, not a Kohen (based upon the Gemora Sanhedrin 83b). The student persisted that if so, we shouldn’t give a Kohen the first aliyah. Rabbeinu Tam remained quiet. Rabbeinu Peter then suggested that a Kohen can voluntarily forfeit the respect due to him as a Kohen and, therefore, there was no problem with Rabbeinu Tam's use of him.

The Ta”z asks that the Kohen is not permitted to forfeit his kedushah and marry a divorcee!? What is the difference between the two?

He answers that it is only permitted for the Kohen to forfeit the respect due to him with respect to something that he will be deriving benefit from – e.g. to be an attendant for Rabbeinu Tam. However, something that the Torah explicitly prohibits, such as – marrying a divorcee, there is no option to forfeit that kedushah.

The Ta”z adds that the reason Rabbeinu Tam was quiet was not because he did not know what to answer; but rather, it was because he did not want to be considered a Torah scholar, for that would be the only reason that it would have been permitted. He cites our Gemora and Tosfos as a proof to this. The Gemora stated: Rav Kahana, Rav Pappa and Rav Ashi did not eat the produce from a pledged field even with a deduction. Ravina, however, did. Tosfos asks: How could Ravina eat the produce from a pledged field even with a deduction? Didn’t the Gemora say above that a Rabbinical scholar would not take produce in such an arrangement?

Tosfos answers that Ravina, due to his great humility, did not want to be regarded as a Rabbinical scholar. Ravina did not want people to be aware of his spiritual importance. The prohibition, which applied to other Torah scholars, did not apply to Ravina, for since he was not known as a Torah scholar, his conduct would not necessarily serve as an example to others.

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Asmachta by har sinai

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It is written in Parshas Yisro [24, 9 – 11]: And Moshe and Aaron, Nadav and Avihu, and seventy of the elders of Israel ascended, and they perceived the G-d of Israel etc., and they perceived G-d, and they ate and drank.

Rashi cites the Medrash Tanchuma: They gazed and peered and because of this were doomed to die, but the Holy One, blessed be He, did not want to disturb the rejoicing of this moment of the giving of the Torah. So He waited to kill Nadav and Avihu until the day of the dedication of the Mishkan, and for the elders until the following incident: And the people were as if seeking complaints… and a fire of Hashem broke out against them and devoured at the edge (the leaders) of the camp.

We can ask: What happened by the sin of the complainers that precisely then, Hashem chose to destroy the elders?

The Chasam Sofer answers based upon our Gemora: Rav Pappa said: An asmachta is sometimes binding and sometimes not. If the lender found the borrower (on the date that the loan was due) drinking beer (at a tavern), it is binding (for he clearly does not care about the forfeiture of his field); if, however, he was trying to procure money, it is not binding.

Rav Acha from Difti asked Ravina: Perhaps he was drinking to dismiss his anxiety (that he could not pay the loan), or perhaps someone else had assured him of the money (to repay it)?

Similarly, it can be said regarding the Jewish people’s acceptance of the torah when they said, “we will do and we will listen.” Seemingly, this should be regarded as an asmachta, and therefore not binding – they were coerced into saying that by the fact that the mountain was placed on top of them.

Accordingly, we can say as follows: when the elders ate and drank, this was a demonstration that they were completely at ease with their decision; they were displaying happiness and joy with the acceptance of the Torah, and that it wasn’t an asmachta at all. So, on the contrary – they were acting properly, and not deserving of a punishment at all! However, by the sin of the complainers, it is written: They travelled from the mountain of Hashem. Rashi explains that they ran away like a child runs when he is leaving school. They were fleeing in order not to receive any more laws. This would then indicate that when they were eating and drinking by Mount Sinai, it was not a sign of happiness, but rather, they were dispelling their anxiety. This was a cause for their demise, and that is why Hashem waited until the time that they demonstrated what their true intentions were.

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Increasing the Dowry

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The Mishna stated: If someone is renting out a courtyard and he says, “If you give me the money now, I will give it to you for ten sela a year. If you give me the money every month, it will cost you one sela a month (totaling twelve sela per year),” this is permitted.

The Rem”a rules: It is permitted to increase the dowry of one’s son-in-law. He explains the case: A father vowed to give a certain amount to his daughter as a dowry. He then stipulated with his son-in-law that for every year that he allows the dowry to stay by him (and not collect it), he will give an extra amount. This is permitted, for it is as if he is merely increasing the dowry amount. However, this is only if the condition was made before the marriage. Otherwise, it would be forbidden, because the father-in-law is rewarding the son-in-law for waiting to collect the debt.

THE FORBIDDEN SALE AND THE PERMITTED LOAN

By: Rabbi Yaakov Montrose

The Mishna here discusses two cases. In the first case, a landowner sells a field to a buyer who makes a down payment. The seller says, “Whenever you want, you may bring the money and take your field.” The Mishna states that this arrangement is forbidden. RASHI (DH Machar Lo) explains that the field retroactively becomes the buyer's when he pays the rest of the money. Accordingly, if the seller ate the fruit of the field in the interim time, the seller effectively has taken Ribbis for letting the buyer delay payment. If, on the other hand, the buyer eats the fruit of the field during this time, there is a possibility that the buyer will be taking Ribbis: in the event that the buyer defaults on the sale and does not deliver the rest of the money by the given time, the down payment that he gave will retroactively be considered a loan to the seller, and the buyer (lender) will have eaten the fruit of the field of the seller (borrower), effectively taking Ribbis for his “loan” to the seller.

In the Mishna’s second case, a borrower gives his field as collateral to a lender, and they stipulate that if the borrower does not pay back the loan within three years, the field retroactively becomes payment for the loan. The fruit of the field is sold and the money held by a third party until the three years pass. If the borrower pays back the money on time, the profit from the fruit goes to the borrower and the field stays in his possession. If he does not pay back, the ownership of the field is considered to have been transferred to the lender three years ago, and the profit of the fruit goes to the lender.

The TOSFOS YOM TOV asks the following question. The Mishna’s point seems to be that when there is a possibility that the ownership of a field will be transferred retroactively when a certain time arrives, neither party may eat the fruit in the interim because of Ribbis. Why does the Mishna express this point in the case of a sale which is forbidden and in a case of a loan which is permitted? The point seems to be the same in both cases.

(a) The TOSFOS YOM TOV answers that the Mishna teaches its point in the first case with regard to a sale because it wants to show that even though the Halachah is often lenient in cases of sales (as Rebbi Yehudah indeed is lenient in this case because he rules that “Tzad Echad b'Ribbis” is permitted), in this case the Halachah is not lenient and such a transaction is forbidden. On the other hand, the Rabanan were generally stringent in cases of Ribbis of loans. The Mishna therefore teaches a second case to show that such a transaction is permitted even in the case of a loan.

(b) Alternatively, the Tosfos Yom Tov explains that the case of a permitted loan is necessary only because of the testimony which the Mishna quotes afterwards. The Mishna relates that Baysos used to manage his loans this way according to the Chachamim. To maintain consistency with the case of Baysos, the Mishna teaches the second case, in which the law is lenient.

The CHIDUSHEI MAHARI'ACH has difficulty with the question of the Tosfos Yom Tov. The Mishna teaches the first case involving a sale because it needs to teach the potential problem of Ribbis involved in selling a field. A deal in which the fruit is given to a third party until the ownership of the field becomes clarified is not problematic at all. The Mishna therefore needs to teach a case in which the deal is forbidden. The second case of the Mishna is also necessary: since the borrower is offering his field as security for a loan which is due only three years from now, it is possible that this type of transaction should be forbidden because presumably the borrower offers a field of greater value as collateral in order to receive a loan for three years. This means that a default on the loan will provide the lender with a field worth more than the loan -- which is Ribbis. The Mishna teaches that the Halachah in the case of such a loan is lenient and such a deal is permitted.

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What is Interest?

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The Gemora states that living rent free in a debtor's house seems like interest, and is therefore forbidden.

Tosfos discusses the parameters of this prohibition. The Gemora states that living rent free is categorically prohibited, even if the debtor would have allowed the creditor to do so independent of the loan. Tosfos questions how a debtor can do any favors to his creditor, since these also would appear to be interest. Tosfos states that the prohibition only includes conspicuous activities, like living in someone's house, but not things like renting out tools.

The Shach (Y”D 166:1) rules that any inconspicuous favors that the debtor would have done anyway for the creditor may be done. In addition, if they were known to all to be such close friends that they would have allowed each other to dwell rent free, this also may be done.

The Maharshal, however, states that any conspicuous favor may not be done, even if all knew that they would have done this favor without the loan in place.

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Undercutting the Price

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By: Reb Avi Lebowitz

There is a dispute in the Mishna whether a seller is allowed to undercut and sell below market price so that people will buy in his store. The Gemora seems to ask why the Chachamim permit this type of price setting. The Gemora answers that ultimately it will have a positive result on the market because it will force the market price to be lower. The implication of the Gemora is that one can only undercut the market in this way when it will in fact be beneficial to consumers by lowering the market price. However, in a situation where it will not result in actually lowering the market price (perhaps because the market is too large to be lowered by one merchant, such as the case nowadays with internet sales), the seller would be forbidden to undercut the market to encourage consumers to buy in his shop.

However, R’ Shlomo Kluger (Chochmas Shlomo C.M. 228) makes a beautiful diyuk from Rashi that perhaps that is not the halachah.. When the Gemora asks – what is the Chachamim’s reason? Rashi comments: Why is the seller favorably remembered? Meaning, the Gemora isn’t asking why the Chachamim permit to sell for cheap, rather the Gemora is asking why is it considered so positive and even a blessing. To that the Gemora answers that the seller is remembered for good because he helps consumers by lowering the market price. This rationale is only necessary to explain why it is a good thing for the seller to do, but even without this rationale, the Chachamim hold that it is permitted. Based on this, R’ Shlomo Kluger justifies why the Shulchan Aruch fails to limit this permission in any way, and rules that one can always undercut the market price even in a situation where they are selling to a different city and their sales won’t have a positive effect on the market.

It would seem that it is permitted for one to undercut his competitors to provide incentive to the consumers to shop by him, put them out of business, and then raise the price (within the confines of ona’ah). But perhaps we can be medayek from Rashi on the Mishna that this type of devious behavior is not permitted. Rashi, when explaining the Tanna Kamma who holds that it is forbidden to do this, comments: מפני שמרגיל לבא אצלו ומקפח מזונות חבירו. Rashi indicates that the case we are discussing is when he is harming the other merchants only by luring their customers to his store. This is similar to distributing candies where you would not be putting the other merchants out of business, just “stealing” their customers. Since the other merchants can also distribute candy and/or lower their price to compete - it is fair capitalistic business practice, so the Chachamim permit it. However, in a situation where one merchant is wealthier than the rest and can afford to literally sell at a loss for six months to force his competitors out of business, it is very possible that even the Chachamim would agree to the Tanna Kamma that it is forbidden, since the other merchants don’t have the ability to compete.

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Heavenly Voice

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The Gemora states that a Heavenly voice declared that the halachah follows the opinion of Rabbi Eliezer.

The Gemora cites the opinion of Rabbi Yehoshua: He maintains that we do not pay attention to a Heavenly voice dictating who the halachah should follow.

The Gemora in Yevamos (122a) states: A woman can get married on account of a heavenly voice. This means that if her husband went overseas and a Heavenly voice declares that her husband died, she is permitted to get married.

The Tosfos Yom Tov states that this is not referring to a Heavenly voice since we rule that one does not pay halachic attention to a voice emanating from heaven.

Reb Elchonon explains differently: We do not pay attention to a Heavenly voice regarding halachic matters because Torah is not in the heavens; it was given to human beings. The Sages of Klal Yisroel have the authority to resolve all halachic matters, not the heavens. However, a Heavenly voice can resolve a factual doubt. We would not rely on a Heavenly voice in regards to something that requires two witnesses. The Chachamim were lenient in regards to the testimony of a woman and they relied on the words of even one witness; that is why a Heavenly voice can be believed in this matter.

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the Righteous and the Scoffers

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By: Reb Binyomin Adler

Rava expounded: What is the meaning of that which is written: But when I limped they rejoiced and gathered … they tore [at me] and would not be silenced? Dovid said before The Holy One, Blessed be He: Master of the Universe! It is revealed and known to You that if my enemies were to tear my flesh, my blood would not flow out (for it has drained from the surface of my body because of their taunts about my sin). And not only that, but when they were engrossed in the studying the tractates of Negaim and Oholos (difficult tractates in the order of Taharos), they interrupt their studies and say to me (tauntingly): Dovid! If one cohabits with another man’s wife, what is his prescribed form of execution? I said to them: If one cohabits with another man’s wife, his execution is by strangulation, but he has a share in the World to Come. However, one who makes his fellow’s face turn white from shame in public (as you are doing to me), has no share in the World to Come.

This dialogue appears somewhat strange. Were Dovid’s tormentors really serious in their accusations against him regarding his taking Bathsheva? If they were, should they have not summoned him to trial? Although the Gemora states that a king cannot be judged, certainly the Sages of the time would have at least incriminated Dovid. How can we understand their accusations?

There is a constant struggle in the world between the righteous and the wicked. Thus struggle has manifested itself throughout history, as evidenced in the incident where Avraham and Sara miraculously conceived a child, yet there were still those who scoffed and said that Avimelech impregnated Sara. Hashem always allows room for the wicked to interpret events in their own way. When Dovid committed the act with Bathsheva, Hashem allowed for the wicked to lose their share in the World to Come by scoffing at Dovid. They were not seeking justice at all. Rather, they were looking for someone to mock, and scoffers will mock anyone, even the great Dovid, King of Israel.

The Maharsha notes that one who speaks evil slander incurs tzaraas, and even still their study of those laws did not prevent them from slandering Dovid. One has to guard his speech, but equally important, one must inspect his actions to ensure that he is not from the scoffers, but from those who defend and respect the righteous.

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Verbally Paining a Rasha

By: Reb Avi Lebowitz

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The Mishna tells us that just as there is a prohibition of ona’ah to cheat someone through money, there is also a prohibition to cause them pain verbally.

The Mordechai (306) says that based on the Gemora that considers ona’as devarim to be “not returnable,” it would follow that one receives malkus (lashes) for violating ona’as devarim.

The obvious difficulty with this is that ona’as devarim is a la'av she'ein bo ma'aseh (a prohibition without an action) which one does not receive malkus for violating.

The Sefer Hachinuch explicitly argues with this Mordechai and says that since it is a la'av she'ein bo ma'aseh, there isn't any punishment of malkus.

The Nimukei Yosef explains based on the Gemora (59a) that only עם שאתך בתורה ובמצוות are included in ona’as devarim, that the prohibition of ona’as devarim doesn't apply when one speaks harshly about one who does not fear Heaven (ya’arei shamayim).

Although the Gemora excludes an evil person from this prohibition (meaning that it is permitted to offend him), it seems a little strange why the Nimukei Yosef raises the bar so high, and insists that there isn't a violation to speak against someone who is not a ya’arei shamayim.

We find that the Gemora expounds in Bava Metzia 48b and 62a - ונשיא בעמך לא תאור, בעושה מעשה עמך, to the exclusion of an evil person.

We also find in the Hagahos Maimon (deios 6:1) on the mitzvah of לא תשנא את אחיך בלבבך וכו' ואהבת לרעך כמוך that we expound - דוקא שהוא רעך בתורה ובמצות אבל אדם רשע שאינו מקבל תוכחה מצוה לשנאותו. It is permitted to hate a wicked person. The source that one can hate such a person is in Pesachim 113b - that one can hate someone who commits transgressions.

We also find in the Rambam (Rotzeiach end of perek 4) who expounds - לא תעמוד על דם רעך, ואין זה ריעך and learns from here that shepherds who are considered thieves are not included in this mitzvah to save them.

All these sources that use the terms “amcha,” “rei'acha” or “achicha” seem to exclude only real wicked people. But the Nimukei Yosef seems to understand that the term “amisecha” in the context of ona’ah excludes anyone who is not a ya’arei shamayim. The term implies a higher standard than the other terms.

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Land and Slaves

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The Mishna says that slaves share the status of land regarding the exclusions listed. Therefore, a sale of a slave is not subject to the rules of ona’ah. Abaye says that a rental is subject to the rules of ona’ah, since it is equivalent to a temporary sale.

The Rishonim explain that Abaye is only referring to rental of items whose regular sale is subject to ona’ah, but rental of land is not subject to ona’ah, similar to a permanent sale of land.

The Rishonim discuss whether hiring a worker is subject to ona’ah. The Ramban and Rashba say that hiring a worker is not subject to ona’ah, since the Torah states that ona’ah applies when buying or selling a “mimkar” - a sale item. When hiring a worker, there is no sale item per se, and therefore no ona’ah.

The Rambam (Mechira 13:15, 17) says that hiring a worker is not subject to ona’ah, since it is akin to renting a slave. Since buying a slave is not subject to ona’ah, renting one – which is a temporary sale – is also not subject to ona’ah. However, the Rambam says that when hiring a worker for a project, as opposed to hourly work, ona’ah does apply, since such a transaction is not considered a temporary sale of a slave, but a proper transaction of merchandise.

The Drisha (227:47) explains that a slave is defined by his time being owned by his owner. Therefore, an hourly worker can be considered temporarily enslaved, since during his employment period, his time is owned by the employer, while a project worker is not even temporarily enslaved, since his time is always only his. Since the Rambam exempted employment as a function of a slave’s exclusion, project work, which is not similar to a slave’s work, is not exempted. However, the Ramban and Rashba offer a more fundamental reason to exempt employment from ona’ah, and therefore apply this to all types of employment, including project work.

This dispute among the Rishonim would seem to depend on a general dispute among the Rishonim about exclusions of slaves. Rashi (Kiddushin 7a, 28a) and Tosfos (Megilla 23b Shamin) say that whenever the Gemora makes halachic statements about slaves, this applies to any person, even if he is free. Therefore, the Gemora (Kiddushin 7a) considers a wife being betrothed to be equivalent to real estate (as far as modes of acquisition), and the Gemora (Kiddushin 28a) treats someone’s claim that one is his Jewish slave to be equivalent to a dispute over land (as far as swearing). Tosfos (Kiddushin 7a, 28a) and the Ritva (Kiddushin 28a), however, say that the categorization of slaves as equivalent to land only applies to Kena’ani slaves, and not to free people, or even to Jewish slaves. The Tur and Shulchan Aruch (HM 227:33,36) rule like the Rambam.

The Shach (HM 95:18) rules that the halachic rules of a slave apply to all people, since the Torah is simply using slaves as a vehicle to explain that human acquisition is equivalent to land acquisition. In general, only Kena’ani slaves are acquired, which is why the Torah used them to teach this rule.This is consistent with the position of the Shulchan Aruch.

The Kovetz Shiurim (Bava Basra 310) suggests that the Rambam may not rule that the laws of slaves apply to all people. However, this is because only a slave can be truly permanently acquired, while other situations (e.g., a wife or Jewish slave), are only temporary, and cannot be compared to land. However, in regard to ona’ah, the exclusion of a slave also excludes hourly employment. Abaye explained that ona’ah applies to rental, only since it is considered a temporary sale. Therefore, a rental is subject to ona’ah where an equivalent permanent sale is subject to ona’ah. Although the employee does not have the rules of a slave, and cannot be permanently bought, employment’s theoretical permanent counterpart would be enslavement, which is not subject to ona’ah. Therefore, the temporary sale of employment cannot be subject to ona’ah, since ona’ah derives from considering a rental as a temporary sale, as Abaye stated.

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