You Be the Judge: Volume 3

You Be the

Judge 3 A Collection of Ethical Cases and Jewish Answers

Joel Lurie Grishaver THE ETHICS OF ROBIN HOOD

Jewish Family Values

Torah Aura Productions

JAKE’S COMPUTER RIGHTS

You Be the Judge 3

In this volume Joel Lurie Grishaver presents a wonderful collection of ethical dilemmas and Jewish answers. You Be the Judge 1 puts together a set of cases that will challenge and a set of answers that will inform.

Joel Lurie Grishaver

Joel Lurie Grishaver is the co-owner of Torah Aura Productions. He is a writer, master teacher, cartoonist and storyteller. He has authored more than one hundred books including Experiencing Jewish Prayer, Shema is For Real, Forty Things You Can Do to Save the Jewish People and Talmud With Training Wheels.

The “You Be the Judge” process has become a phenomenon. For more than seven years Torah Aura Productions has be releasing these ethical dilemmas and our web site takes thousands of hits for people looking for “the Jewish answers.” Every week, at hundreds of living rooms and thousands of Shabbat tables, families have been using “You Be the Judge” cases to talk and argue together about “the right thing to do.” In Jewish classrooms around the country, students and teachers have used “You Be the Judge” cases to explore the way that Jewish values can apply to real life.

Family Bet Din Book 3

THE SOTHEBY’S CASE HOMEWORK WARS

YOU BE THE JUDGE 3 A Collection of Ethical Cases and Jewish Answers

Joel Lurie Grishaver With a Few Cases by Rabbi Aaron Frank

ISBN 1-891662-59-7 Copyright © 2004 Joel Lurie Grtshaver and Rabbi Aaron Frank Published by Torah Aura Productions All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means graphic, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without permission in writing from the publisher.

TORAH AURA PRODUCTIONS MANUFACTURED IN THE UNITED STATES OF AMERICA

Introduction For a decade we have been publishing You Be the Judge cases weekly. They first appeared in Shabbas.

Doc, a newsletter for Jewish families. Later they appeared in C.Ha (pronounced “seecha” and meaning “conversation”), a newsletter for 11- to 14-year-olds. In classrooms and homes, as well as in programs all over the world, groups have been struggling to find “the right answer” to a complex series of ethical dilemmas and legal conundrums.

This is the third volume in the You Be the Judge collection, Case Load 3. In many ways this is a “greatest hits” volume, drawn from six years worth of published cases. A few of the cases come from the half year that Rabbi Aaron Frank served as our legal decisor (and are so indicated). The rest were authored by Joel Lurie Grishaver. Many contain the input of the “C.Ha Crew,” the students who have regularly participated in the e-mail dialogue that shaped and help produce C.Ha.

The You Be the Judge Process There is a simple secret to You Be the Judge cases. These are situations in which we have to choose between two things we believe in. These are not “should you return the wallet or not” cases. Rather, they are cases that involve “Is it okay to risk your life?” or “Should your dead comrade remain unburied?” They are always about finding the best compromise—or making the hard choices that force you to give up on one value while actualizing another.

You be the Judge cases are created two ways. Some start with the answers while others start with the question.

There is a large literature of Jewish questions and answers called Responsa. Since the end of the Talmud, Jews have been asking their rabbis questions. When their rabbis have been unable to answer those questions, they’ve passed them on to some of the leading rabbis of their generation who researched and wrote their best answers. These “answering” rabbis often collected their best answers into books, collections of Responsa. Today most of the major Jewish movements in many countries maintain “law 3

committees” that answer questions for their movement. In this volume we have drawn on Reform and Conservative Responsa created in North America, Great Britain and Israel. We have used lots of Orthodox Responsa both from this generation and from earlier ones. Many of our cases are drawn from Responsa where the “question” has been restated and the sources and opinions in the answer have been simplified for our answer.

Other times our cases start with a question. Some come from the headlines, some from small sidebar articles in newspapers or from radio shows. Often participants in You Be the Judge programs or groups have sent us “real life” cases for which they are seeking answers. When a case starts with the problem, there is a complicated research process that gathers material from the Torah, the Talmud and the Midrash, the Codes, and most of all from Responsa literature. Here we do our best to project good Jewish answers to difficult questions.

Halakhah, Jewish law, is an art form, not a science. When looking for the “Jewish” answer to an ethical dilemma, we can always clarify the values that are involved, we can often find the compromises that the tradition has recommended in the past, but we can’t always find solutions. Sometimes the tradition just helps to clarify our choices. Other times, however, we find places where the tradition makes clear recommendations. This isn’t always satisfying.

The You Be the Judge process will, however, always do two things. First, it will give you a chance to rehearse your response to difficult situations, to think them through when nothing real is at stake.

Second, it will always give you a language and a process to use to confront ethical dilemmas. This is the real richness of the Jewish tradition. It gives you a way to solve problems, even if it doesn’t always give you a clear answer every problem.

Using You Be the Judge You Be the Judge is used by families at their Shabbat table. It is used in lots of classrooms. And You Be the Judge is the source for large group programs and even a museum exhibit. In using this material in any of these contexts, there are four steps.

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[1] Hearing and Reacting to the Case: The first step is reading and discussing the case. Here is a chance to explore the issues and to propose solutions. This is a time for various solutions to be put on the table, compared, and evaluated.

[2] Testing Out Reasoning: The best way to grow these conversations is to help clarify thinking by testing the parameters of the values expressed. For instance, if a participant says, “A murder should never be forgiven,” among the questions they might be asked are:

Even if they repent?

What if the murderer was significantly abused by the person he killed?

What if the murder was committed under the influence of drugs and alcohol and the person has gone through recovery?

In confronting such questions—alternative visions of the situation—the participants get a chance to hone their thinking and craft their understanding.

[3] Exploring the Jewish Sources: Following the case, You Be the Judge always presents “a Jewish solution.” The “answer” provides Jewish sources that suggest how Jewish values apply to this situation. Reading and discussing the values gives a window on Jewish thinking.

[4] Evaluating the Proposed Answer: As we have said, Halakhah is an artform. The “suggested” answer is not the only possible Jewish response. Answers will differ between Jewish movements, and they will often differ between legal scholars within the same movement. When reading “the Jewish answer,” students need to ask two questions:

What have I learned from these Jewish sources?

How do I feel about the suggested answer? Is it an answer for me?

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Core Jewish Values Found in This Volume Ba’al Tahshit: We are commanded not to waste anything that can be useful to people. Recycling is a mitzvah. It is based on a Torah verse that says, “When you make war you cannot cut down fruit trees.” (Deut. 20.19)(Mishneh Torah, Laws of Mourning 14.24) Darkhei Shalom: Fostering goodwill and harmony. (Titan Emet l’Yaakov 5.24) Derekh Eretz: “The right thing to do.” The students of Rabbi Shimon ben Shetah buy him a donkey as a gift. He is old, and the donkey will help him earn a living. They buy the donkey, the saddle, the blanket, and everything on it in a precise formula from an Arab merchant. Shimon finds a jewel on the animal as he is grooming it. He demands that his students return it. They insist that it is legally his. He persists that it be returned. When they bring it back, the Arab responds, “God bless the God of Rabbi Shimon bar Shetah.” This is Derekh Eretz. (Jer. B.M. 2.5) Dina d’Malkhuta Dina: The law of the land is the law. This means that one has to follow local laws unless they directly lead to the violation of Jewish laws. (Nedarim 28a; Gittin 10b; BK 113a; BB 54b and 55a) Ha-Hovel b’Atzmo: This is the rule against injuring one’s self. In Deuteronomy 4:9 we are told “Take care and be careful to guard yourself.” Maimonides expands this and lists things that risk your health that are forbidden because they are dangerous. (Hilkhot Rotzeah 11:4).

Ha-Rodef: This principle means “the pursuer.” If person A is chasing person B in order to kill him or her, an outsider can kill A in order to save B’s life, if that is the only way to protect B. Hasagat Ge’vul. This is “violating a boundary.” This is the rabbinic label for unfair competition in business. (Bava Kama 20a) Hefeker: This means “abandonment.” The idea is that when a person loses something, how long is a finder obligated to return it? The answer: until it is “Hefeker.” When is that? When the original owner gives up hope of ever recovering it. In other words, when it is abandoned. There are rules about how long that takes, but in general, if the object can be identified, “a year and a day,” and if the object cannot be identified (if it has no distinguishing, describable attributes, like a twenty-dollar bill), immediately.

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Hezek Re’yah: The term for prohibition of visually invading someone’s space. This is the Jewish category for invasion of privacy. (Bava Batra, 2a-3a, 59b) Hillul ha-Shem: It is forbidden for a Jewish person to do anything that could discredit the religion or God. Kibud Av v’Em: The mitzvah of honoring parents. (Kiddushin 29a) Kiddush ha‑Shem: Standing up for God’s name. It is being a good example for God. Lashon ha-Rah: The sin of gossiping. (Pesahim 113b) Lifnai Ever: The Torah says “Do not put a stumbling block before the blind.” (Lev. 19.14) Rashi explains, “This law refers to a person who is blind to the consequence of his/her actions, not just to one who is suffering from physical blindness.”

Lo Ta’amod al Dam R’ei‑ekha. A verse in Leviticus tells us “do not stand on your neighbor’s blood, I am God” (19:16). This prohibition gives us the commandment that we cannot stand idly by while someone is dying; we must do what we can to save him or her. (Talmud, Sanhebrin 73a) Ona’ah is a basic Jewish legal principal called that is usually translated as fraud. (Bava Metziah 51a ff).

Ona’at Dibbur: This is verbal fraud. One example in the Talmud is the question, “Can you walk into a store and ask the price of something you have no intention of buying?” (Bava Metzia 58b) Ona’at Dibbur is any set of words that leach self-esteem from another.

Pikuah Nefesh: A principle learned in chapter 8 of Yoma. It is based on Leviticus 18.5, where the Torah says “These are mitzvot—LIVE by them.” The rabbis underline this passage in the Talmud and add, “Live by them—do not die by them.”

Rakhok me’Shekheker: In the Torah it says “Keep far from lying.” (Exodus 23.7) The rabbis make a point of teaching that the text says “Keep far from lying” and not “Do not lie.” They explain that there are times when lying is acceptable. This usually involve (a) making peace, (b) protecting someone’s life or property, (c) not hurting someone’s feelings, etc. (Yevamot 65b, Ketubot 17a) Shomer Hinum: An unpaid guardian is not responsible to pay for loss or damage unless s/he made personal use of an object or unless s/he was negligent in protecting it. (Bava Metzia 3.1).

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Tokhehah: The mitzvah of correcting, which teaches that we have an obligation to help other people realize that they are doing something wrong. (Leviticus 19.17) T’shuvah: Judaism believes that repentance is possible for all mistakes and crimes except when one sins and plans on being released from that sin by t’shuvah. Judaism makes a distinction between forgiveness and punishment. We are required to forgive anyone who sincerely makes repentance. But, that forgiveness does not necessarily remove the punishment. (Yoma 85b) V’Shinantem l’Vanekha: This commitment for parents to teach their children comes from the verse, “and you should teach them to your children.” (Deuteronomy 6.7) Zuto Shel Yam: This teaches that anything recovered after a flood (even if it has distinguishing marks) does not need to be returned. It is assumed that after a flood the owner has given up hope of retrieving it. (Bava Metzia 21a ff.)

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[1] Up Against The Wall

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This true case arrived in an e-mail: �

t my school someone put a piece of graffiti on a bathroom wall. I might know who it is if it happens again. So what do you think I should do if it does happen again?�

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The Answer to “Up Against the Wall” Here are some of the answers sent in by our C.Ha Crew: “If it does happen again, I would tell the person who did it to realize that putting graffiti on the wall makes your school look like a bad place. The same kind of problem happened to my school when someone drew a swastika on the bathroom door.” Josh, 11, Short Hills, NJ. “If you know who it is, you should report them to the principal.” Ben, 9, Lawrenceberg, IN. “Leave it alone. You’ll just get in more trouble if you get into it.” David, 11, Chicago, IL. “Wait until you are sure you know who the person is, then tell them to stop.” Rory, 13, Wallingford, PA. “I feel that Nathan should talk to the one who wrote the graffiti on the wall and express his feelings of why he or she shouldn’t do it again.” Nate, 13, Denver, CO. “If it does happen again, confront the person and tell them you know it is him/her. Tell the person to stop, and if they don’t, go to the principal/administrator.” Trevor, 14, Omaha, NE. “I agree with Trevor—talk to the person if it happens again, but make sure it really IS them (it would be horrible if it wasn’t them!), and tell them that if they don’t stop you will go to an authority person.

If they don’t listen to you, then follow through with your word... even though this could earn the person’s eternal hate [:‑)], unless it is your very good friend, it is important to take care of the property.

Would you want people to do that to your house? Your school kind of is your second home because you spend most of the day there. You shouldn’t be uncomfortable in the bathroom.” Rachel, 13 in 1 month, 10 days, Wallingford, PA. Whether to “tell” about the person you suspect of being guilty of defacing the bathroom is a hard question.

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[a] First, the Torah makes it clear that you have an obligation to protect other people’s property.

That would include making sure that the school bathroom is not defaced. The Talmud teaches (BM 30b), “If a person sees flood waters approaching someone else’s field, that person must make a barrier or a dam and try to save the field.” This is based on Deuteronomy 22.1: “If you see you neighbor’s ox or sheep lost, you must not ignore it. You must take it back to your neighbor.” [b] There is a mitzvah called “Tokhehah,” correcting, that says you have an obligation to help other people realize that they are doing something wrong (Leviticus 19.17). The rules are complex, but the basic idea is this: if there is a way of talking the kid out of doing it again, you must confront him. Even if it will make you uncomfortable to do so, you still have an obligation.

(Yevamot 65b) But if your confronting him will make it worse, you are not allowed to. [c] You are not allowed to ruin the reputation of someone on a hunch. There is even a passage in the Talmud that says if you are the sole witness to a crime, you are not allowed to testify against the guilty party. This is because in a Jewish court no one can be convicted on the testimony of one witness, and by testifying, all you are doing is harming the reputation of the guilty party.

You are actually guilty of Lashon ha-Rah, gossiping. (Pesahim 113b) Therefore: If you think you know who it is, but you don’t know for sure, you are not allowed to tell, because you might be ruining someone’s reputation.

If you can warn the school to watch the place and not the person—say if you know when they do it—that would be best. This will protect the property but not get the other person in trouble without you knowing for sure.

Best would be if there is a way you can talk to the guilty party and change his or her behavior. But you are not allowed to put yourself at risk (say if they would harm you if you confronted them). The very best thing would be if the person could be convinced to repair the damage already done.

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[2] Kosher Tickets

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ean is standing in line to buy tickets to a concert he really wants to see. He is set to buy four tickets. There is a rule that no one can buy more than six tickets.

A man comes up and down the line and offers to pay Sean $100 if he buys two extra tickets for him. Should Sean do it? This case comes from a column in the New York Times written by Randy Cohen called “The Ethicist.� My own friends have been arguing over this one.

YOU BE THE JUDGE: Is it Kosher to take the money? (Kosher means appropriate for Jews.)

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The Answer to “Kosher Tickets” I was having dinner with friends of mine, both rabbis, and they had opposite answers to this question. [a] The first said, “He is allowed six tickets. He buys six tickets. He has broken no law. If he makes some money, good.” [b] Rabbi Number Two said, “It is wrong. First, he is breaking the rule of Dina d’Malkhuta Dina, the law of the land is the law. The limits on the number of tickets you could buy were set up to prevent scalpers.

Scalpers resell tickets to people at high prices. If this person is a scalper (and the $100 says he well may be), you are helping him break the law.

Helping another person break the law (even if you make money) is a violation of the principle of lifnai ever, ‘you shall not put a stumbling block before the blind.’”

If he was just a person who wanted tickets without standing in line, he was stealing the time of people who stood in line. Stealing time is also a violation of the “You shall not steal” commandment.

Using no texts but just logic, Randy Cohen said that it was wrong to buy the tickets. Whether you go with Rabbi No. 1, who says you are within the law, or Rabbi No. 2, who says you are breaking the values of the law, is a matter for your own conscience.

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[3] Light One Candle and Go to Jail

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t is a mitzvah to light Shabbat and holiday candles.

In other words, it is something a Jew is “supposed” to do. Sarah is a freshman at a state university. Her mother gave her candlesticks as part of her “Jewish at college” kit. Now, Rosh ha-Shanah is coming. On many university campuses it is against the dorm codes to have an open flame (like a candle) in a dorm room.

YOU BE THE JUDGE: Sarah wrote and asked this question: “Should she light her candles for Rosh ha-Shanah and break the dorm code, or follow the code and not light candles?”

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The Answer to “Light One Candle and Go to Jail” If your college dorm forbids the lighting of candles in your room, what should you do? [a] Maimonides makes it clear that it is a mitzvah to light candles on Shabbat and on the Haggaim (festivals). (Laws of Shabbat 5.3) [b] The Talmud makes it clear that Shabbat and other mitzvot can be violated when life is at stake. Performing the mitzvot is not supposed to be dangerous. Pikuah Nefesh is the name of this principle, and it can be learned in chapter 8 of Yoma. It is based on Leviticus 18.5, where the Torah says, “These are mitzvot—LIVE by them.” The rabbis underline this passage in the Talmud and add, “Live by them—do not die by them.” [c] There is another rabbinic principle called Dina d’Malkhuta Dina, that more or less means the law of the land is the law. This means that you have to follow local laws unless they directly lead to the violation of Jewish laws. (Nedarim 28a; Gittin 10b; BK 113a; BB 54b and 55a) [d] Most of our C.Ha kids suggested “work-arounds” such as getting the university to provide a candle room or using electric candles, etc. They were going in the right direction. [e] If the university were forbidding Jewish practice or religious practice, then there would be an obligation to protest for freedom. This would be called Kiddush ha‑Shem, standing up for God’s name. But if the regulation is for health and safety, and if there are alternatives that allow you to still observe the mitzvot, then there is no issue. Dina d’Malkuta Dina becomes the overriding principle. The candles are not lit in the room, but an alternative is found.

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[4] The Twins

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real case. Jodie and Mary were born as Siamese twins. If they are left unseparated, they will most likely both die. If they are separated, one of the babies, Mary, will definitely die, and one will probably live. The parents are opposed to the operation because they are not willing to be responsible for the death of one of their daughters. They are willing to stand by, do nothing, and hope for a miracle. The British courts are thinking about ordering the operation (against the parents will).

YOU BE THE JUDGE: Should a court order an operation that will save Jodie’s life?

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The Answer to “The Twins” In the case of twins who need to be separated for one of them to live, the parents, devout Roman Catholics, say only God should determine how long the children will live. Most Jewish authorities in Great Britain argued that the court should force the operation. [a] There is a Jewish legal principle called “ha-Rodef,” the pursuer. If person A is chasing person B in order to kill him or her, an outsider can kill A in order to save B’s life, if that is the only way to protect B. The rabbis used this principle in the case of abortion, saying that if a mother’s life is at risk, the fetus is considered to be “a pursuer.” This means that the fetus must be terminated if that is the only way of assuring the mother’s health. The same principle applies to the weaker of the two twins here. [b] Dr. Harry Freedman of the Masorti, or Conservative movement, said, “This principle is couched in fairly barbaric language because it’s an ancient principle.” [c] Berel Berkovits of the Federation of Synagogues, an Orthodox body, said there are two ways to look at the case. “Is it one person or two?” he said of the twins. “You might argue that it’s one organism, in which case separating one from the other is like an amputation to save a life.” That course of action is certainly permissible. If the twins are two separate organisms, each could be considered a pursuer of the other, since each, in effect, would kill the other if they are not separated. [d] Rabbi Charles Middleburgh of the Union of Liberal and Progressive Synagogues said, “One of the things that Judaism teaches is that the saving of life is paramount. Because it is possible to save Jodie by separating her from her sister, Jewish tradition recommends that option.” [e] Rabbi Chaim Rapoport, the chief rabbi’s spokesman on medical ethics, explained why he disagreed with the parents’ desire to let nature take its course. “Judaism rejects passivity and noninterference with nature. Jewish law supports the life-saving operation.”

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[f] A lower court ruled that the operation should take place. [This answer is drawn from a JTA story]

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[5] Tzedakah Privacy

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person is elected to be head of a Jewish organization. He has always kept the amount of his donations a secret. It is the custom of this organization to publish the amount given (in categories) by its big donors. The new president claims that he has the right to keep his donation a secret. The organization claims that as president he has an obligation to set an example and have his donation published.

YOU BE THE JUDGE: Should this new president be told to publish his donation, or should he be allowed to do what he wants?

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The Answer to “Tzedakah Privacy” This is a real case on which no rabbinic authority has officially commented. It hangs between two key Jewish values: [a] One who gives Tzadakah in secret is considered greater than Moses. (BB 9b) [b] It is more important to get others to give tzedakah than it is to give tzedakah. (YD 249:5) Virtually all of the C.Ha troop and about a dozen rabbis and Jewish legal scholars whom I asked supported the president’s ability to keep his pledge secret. This is seen to be an expression of Maimonides ladder of Tzedakah, where “double blind giving” (giver and receiver not knowing each other) is the second highest form. I, however, suspect that a sense of community obligation might overwhelm more traditional interpretations—especially from an earlier age with a weaker sense of individuality.

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[6] A Holocaust Ethical Dilemma

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Real Case. The Jews of Kovno knew that the Nazis were about to slaughter many of them and take the rest away to death camps.

One man went to Rabbi Oshry and told him that because he had been part of the resistance, the Nazis would not just kill him, but would torture him and put his family to death before his eyes. He asked permission to commit suicide and so provide himself (and possibly his family through his absence) with an easier death.

YOU BE THE JUDGE:

What should this man be told?

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The Answer to “A Holocaust Ethical Dilemma” [a] Normally Jews are forbidden to commit suicide. The simple explanation is that our bodies belong to God, and we do not have permission to abuse them. The textual proof comes from Genesis 9.5: “For your life-blood, too, I will hold you responsible.” In the Talmud, Bava Kamma 91b, the rabbis make it clear that this refers to suicide that is forbidden. [b] The one example of a permissible suicide is King Saul (1 Samuel 31.3-5 explained in Genesis Rabbah 34.13), about whom the rabbis say, “He died to preserve the dignity of the King of Israel.” Some rabbis accept this choice. Rabbi Oshry, who faced this choice, said this case is an exception that resembles the case of King Saul (and is not available to ordinary people). [c] Oshry also states that suicide, when it is Kiddush ha-Shem—defending God’s honor and not giving in to pagan forces—is a mitzvah. Not allowing the Nazis to win was such a moment. He bases this on a commentary of Rabbenu Tam on the first chapter of Avoda Zara. [d] Oshry concludes that suicide is permissible in this case, but said that his t’shuvah (answer) could not be published, lest anyone else in the Ghetto read it and imagine that their situation was severe enough to justify suicide. [e] Normally, a Jew who commits suicide is not permitted to be buried in a Jewish cemetery, no eulogy is given at his funeral and no period of mourning (shiva) is observed. Such a Jew is considered guilty of taking a life. Rav Joseph Soloveitchik argued in another T’shuvah that while guilt never justifies suicide and suicide is always wrong, a suicide can be seen as an act of atonement (to be punished by God and not people), and the relatives can bury their dead in a Jewish cemetery, have a eulogy, and sit shiva.

The case was taken from Holocaust and Halakhah by Irving J. Rosenbaum. Ktav. 1976

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[7] Organs for Sale Aaron Frank

out

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his week someone tried to sell a kidney over the internet. In America and many other countries, selling organs is against the law. The belief is that all organs should be donated and then given in an order created by the medical community based on need and likelihood of survival. The doctors say that they fear that rich people will begin forcing people to sell them organs. There are countries where men in good health sell their kidneys for around $1700 because they need the money. Others argue that it limits their freedom to be able to do with their kidney what they want.

YOU BE THE JUDGE: Should selling organs be a matter of personal choice?

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An Answer to “Organs for Sale” There are two issues surrounding this question. First is the permissibility of donating organs and second is the issue of selling them. [a] With respect to the principle of donating organs, Jewish law permits it with a few conditions. The Torah, in Leviticus 13.5, tells us v’Hai ba-Hem, “you should live by the mitzvot.” The rabbis learn from this verse that the supreme value of Jewish life is that mitzvot are to perpetuate human survival. The journal Medical Ethics and Judaism tells us that there is no objection to organs being donated for the purpose of saving a life. The burial of the complete body would be set aside for this principle. The Comprehensive Guide to Medical Halakhah by Rabbi Abraham S. Abraham says that as long as the donor does not suffer permanent harm, organ donation is a most “meritorious act.” [b] This Comprehensive Guide to Medical Halakhah by Rabbi Abraham S. Abraham also gives us some guidance as to the second part of the question. It is there where he writes, “a person who during his lifetime sells one of his kidneys for transplantation into a seriously ill patient because of poverty or debts nevertheless performs the mitzvah of saving a life, as Rabbi Abraham says in the name of Rabbi Shlomo Zalman Auerbach. Yet Rabbi Abraham laments a state of affairs in which someone is resorting to such measures for financial survival. [c] It seems to me the practice of selling body parts should be frowned upon for, the linchpin of the arguments is that the body belongs to us and we can do with it what we want to. Judaism does not support that idea. The body is a holy vessel that is given to us by God, and because of its holiness it is not ours to make profit from the way that we make profit from CDs or baseball cards. Organ donation is a great mitzvah, and the organs should go to the ones who would benefit most from the mitzvah, not to those whose wallets are the thickest.

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[8] Shopping at the Store but Buying on the Internet

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have been hearing this case over and over. Roger goes to the store. He tries on jacket after jacket, pair of pants after pair of pants. He finds exactly what he wants. Then he goes home and uses the internet to find the same jacket, pants, shirt and tie more cheaply. He did not steal anything from the store.

YOU BE THE JUDGE:

Did he do something wrong?

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The Answer to “Shopping at the Store but Buying on the Internet” The Jewish answer is YES!!! [a] Something has been stolen. The Talmud defines doing such things as Ona’at Dibbur, verbal fraud. In the Talmud the question is: “Can you walk into a store and ask the price of something you have no intention of buyng?” (Bava Metzia 58b) [b] That case is hard for us to understand, because it was set in a bazaar world where every deal involved bargaining, and not in the shopping mall. The bottom-line idea here, however, is that when you look like you are going to buy and then you walk out without buying you steal esteem and hope from the store owner, who thinks that he or she is doing something wrong. [c] Even if you tell the owner that you are just looking and are not going to buy, he still starts out with hope, and you steal it when you leave. Jewishly, you need to do some business with the store when you walk in and try on everything in sight.

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[9] Privacy with “The Sarge” Aaron Frank

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red lives in a small suburb of with his parents and two sisters. Fred’s friend Hank has been his best buddy since childhood.

Hank has had some difficulties with drugs and was, just last week, suspended for bringing drugs into school. When Fred’s parents hear about Hank, they remember something strange they overheard a few days ago. Fred and Hank were whispering on the phone until two in the morning to someone named “The Sarge” about $500 they owe him. Fred has repeatedly denied any involvement with drugs and has defended Hank, saying that Hank was framed. As Mom and Dad were discussing what to do, the phone rang and the person asked to speak to Fred, saying he was “The Sarge.” Fred picked up, and Fred’s dad realized that Fred did not notice that the other phone had not been hung up.

YOU BE THE JUDGE: Should Fred’s Dad stay on the line?

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The Answer to “Privacy with ‘The Sarge’” On the one hand, what is being violated here is Fred’s privacy. Jewish law goes to great lengths to protect the privacy of individuals. [a] The Mishnah, Bava Batra 3.7, rules that one may not open a doorway opposite a doorway of a neighbor or a window opposite that of a neighbor.

The Talmud to that passage tells us (60a) that in the desert, the Jewish people showed great goodness in not aligning their tents in a way in which they could see into the tent of their neighbor. The term for visually invading someone’s space is called Hezek Re’yah (Bava Batra, 2a-3a, 59b). [b] There are damages that must be paid if you watch someone without permission. According to Rabbi Norman Lamm, the principle, in our day and age, can be applied to aural surveillance and, in this case, with the phone as well. The famous eleventh-century rabbi Rabbeinu Gershom also made a famous enactment (takannah) that states that it is also forbidden to read other people’s mail. [c] These rules also apply within one’s home and family. An interesting statement is found in the Talmud, Pesahim 112a. We are told there that one was not even allowed to enter one’s own house without knocking first, lest he discover that a spouse was doing something private. This can be applied to kids as well. Just because you live in a house, no matter if you are parent or child, you should respect everyone in the family and their privacy. [d] However, there is an analogy that may open the possibility of Fred’s dad listening in. It is made

by Rabbi Alfred S. Cohen, and it surrounds the idea of what is called a maisit (literally one who prostelytizes). In the case of someone who incites idol worship, we are allowed, according to Jewish Law (Rambam, Hilkhot Avodat Kokhavim 5:3), to entrap them to gain a conviction. This is because, if we let him do what he wanted, he would bring down all of Judaism. [e] It seems that this could also be the case with Fred. If allowed to do drugs, then he could bring down himself, his friends and his whole family.

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[10] Can Torah Be Stolen?

D

evin comes to Hebrew school. His teacher passes out a worksheet. Devin notices that the worksheet has been photocopied out of a published book. After class, Devin waits until everyone has left. He tells the teacher, “You’ve taught me that the Torah says ‘You shall not steal’ and using this photocopy makes me uncomfortable.” The teacher says, “I am glad we can talk about it. I didn’t want to use the whole book. I only wanted to use two or three pages out of it—and so I couldn’t ask the school to buy the book for everyone. But I am really glad that you are thinking and are concerned.” Devin leaves the class and writes a letter to a rabbi he knows, one who would not know his teacher.

YOU BE THE JUDGE: If the rabbi asked you, what answer would you tell her to tell Devin?

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The Answer to “Can Torah Be Stolen?”

A student accuses his teacher of “stealing” when he passes out a photocopy of a Jewish book as the basis of a lesson. The student, following Torah values, then asks a rabbi about it without revealing the name of the teacher and thereby avoiding Lashon ha-Rah (slander). [a] There is a basic rabbinic principle called Dina d’Malkhuta Dina, “the law of the land is the law.” Copyright law in America is a little complicated, but it basically says this: [1] A teacher can once (and once only) make a copy of one chapter of a book to use in class. [2] If the material is designed to be written on (like a worksheet in a workbook), it is against the law to reproduce any of it. [b] The Hatam Sofer wrote: “If we were to close the door in the face of publishers (by reproducing their material more cheaply) no fool would undertake the publication of Judaica and risk a heavy financial loss.

The publication of Jewish works would cease, God forbid, and Torah study would be weakened. Therefore for the benefit of the Jewish people we have enacted that a publisher’s claim on material must not be undermined.” (Responsa Vol. 6 no. 57) The Hatam Sofer was talking about one publisher putting out a cheap edition of a book published by another publisher (like a copy of Maimonides) and not photocopying.

This problem has been around since 1550, when Rabbi Meir Katzenellenbogen of Pogen put out a cheap edition of the Mishneh Torah and Rabbi Moses Isserless forbade anyone to buy it. [c] Rabbi Shmuel Wozner asked specifically about a teacher who uses photocopies in class and concluded that “A teacher who does so is well within his/her legal rights and has also performed the mitzvah of saving students money by not having them buy the books. But these copies must not be circulated in public and can only be used in class” (Responsa Shevet Halevi, volume 4 no.

30

202). But Rabbi Yaakov Blau questions this conclusion and advances the theory that a teacher could use one copy for personal review but could not cause the author or the publisher financial hardship by benefiting from the work without payment. This is Hasagat Ge’vul, “violating a boundary” (Bava Kama 20a)(Pithei Hoshen, “Laws of Theft and Fraud.” P. 287, note 27). [d] Rabbi Moshe Feinstein once ruled that a person could make tapes of a Torah lesson, but could not make a copy of them without the permission of the teacher. One who makes the copies of the tape has stolen from the teacher. (Iggerot Moshe, Orakh Hayyim, 4 no. 40. Sec. 19). [e] It is the practice of Jewish teachers (and all teachers) to regularly use photocopies to teach from.

This is probably a violation of both Jewish law and of American copyright law. The Midrash teaches that the world was destroyed because of the theft of a green bean. God caused the flood because person after person stole one green bean off the cart of a vendor. Soon he had nothing to sell, and he also had no one to blame because each theft was too small to prosecute. (Genesis Rabbah) This material was drawn from an article, “Jewish Law and Copyright,” in the Spring 1991 issue of The Journal of Halacha and Contemporary Society, written by Rabbi Israel Schneider.

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[11] Is Meat Kosher?

S

hira and Becky were deciding on a place to have dinner. Becky wanted to try out the new kosher restaurant that served her favorite, steak. Shira was shocked; she insisted that eating meat went against Judaism, because Jews are commanded to treat animals with respect and without cruelty. Also, the strains of producing meat cause global problems and go against “tikkun olam� (repairing the earth). Shira added that even the first person, Adam, was a vegetarian. Becky started to wonder if eating even kosher meat went against other Jewish teachings. (They ate veggie burritos instead.)

YOU BE THE JUDGE: Should Jews be permitted to eat meat?

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The Answer to “Is Meat Kosher?” [a] There is little question that we are supposed to treat animals with respect, yet we are given the allowance to eat meat. Sanhedrin 59b points out that meat eating is only a concession. Rav Judah stated in the name of Rav, “Adam was not permitted meat for purposes of eating as it is written, “for you shall it be for food and to all beasts of the earth” (Genesis 1:29), implying “but not beasts of the earth for you.” But when the sons of Noah came God permitted them the beasts of the earth as it said, “as the green grass have given to you everything” (Genesis 9:3). [b] Pesahim 109a states that since the destruction of the Temple in Jerusalem, Jews are not required to eat meat in order to rejoice at festivals. [c] Vegetarians often argue the many advantages to the preservation of world resources of refraining from meat. Often listed ones include the following: 1. Over 70% of the grain in the U.S. is used to feed farm animals, whereas it could be used to feed many starving people.

2. Huge amounts of grain grown to feed animals requires increasing amounts of pesticide.

3. In the U.S. more plant species have been eliminated due to overgrazing by livestock than through any other cause.

4. The standard diet of a U.S. citizen requires 4200 gallons of water per day (for animal’s drinking water, irrigation of crops, processing, washing, cooking). A person on a vegan diet requires only 300 gallons per day. [d] The laws of kashrut teach us that a Jew’s first preference should be a vegetarian meal. If, however, one cannot control a craving for meat, it should be kosher meat, which would serve as a reminder that the animal being eaten is a creature of God, that the death of such a creature cannot be taken lightly, that hunting for sport is forbidden, that we cannot treat any living thing callously, and that we are responsible for what happens to other beings (human or animal) even if we did not personally come into contact with them (Pinchas Peli, Torah Today).

Permitted meat was called b’sar ta’avah, “meat of lust,” so named because, as the following 33

rabbinic teachings indicate, meat is not considered a necessity for life. (Leibowitz, Studies in Deuteronomy) Scripture does not command the Israelite to eat meat, but rather permits this diet as a concession to lust. (Schochet, Animal Life) [e] The 13th-century Jewish philosopher Nahmanides stated that the reason behind the dietary laws was that living creatures possess a moving soul and a certain spiritual superiority that in this respect make them similar to those who possess intellect (people). They have the power of affecting their welfare and their food, and they flee from pain and death. (on Genesis 1:29).

According to the Jewish philosopher Rabbi Joseph Albo, the reason is that “In the killing of animals there is cruelty, rage, and the accustoming of oneself to the bad habit of shedding innocent blood...” (Sefer ha-Ikkarim, Vol. III., Chapter 15) [f] God never wanted people to eat meat, because of the cruelty involved; people shouldn’t kill any living thing and fill their stomachs by destroying other living things. God temporarily gave permission to eat meat because of the conditions after the flood, when all plant life had been destroyed. God did not want to give the Israelites who had left Egypt permission to return to a diet involving meat, due to the cruelty involved. However, the “mixed multitude” (other slaves who left Egypt with the Jews) lusted for meat and inculcated this desire among the Jewish people. Hence, God again reluctantly gave permission for the consumption of meat, but with many restrictions. (Rabbi Isaak Hebenstreit, Graves of Lust ) [g] Rabbi Abraham Isaac ha-Kohen Kook, the first chief rabbi of pre-state Israel, believed that these many dietary constraints imply a reprimand and are designed to keep alive a sense of reverence for life so that people would eventually return to God’s original vegetarian diet (Genesis 1.29).

Rabbi Kook believed that the future Messianic period will be vegetarian. He based this on the words of Isaiah (11:6-9): “...the wolf shall dwell with the lamb...the lion shall eat straw like the ox...and no one shall hurt nor destroy in all of God’s holy mountain.”

“Jews will move increasingly to vegetarianism out of their own deepening knowledge of what their tradition commands... A whole galaxy of central rabbinic and spiritual leaders...has been affirming vegetarianism as the ultimate meaning of Jewish moral teaching.” (Rabbi Isaac ha-Levi Herzog) 34

[h] When asked if he was a vegetarian for health reasons, Isaac Bashevis Singer answered: “Yes, for the chicken’s health.” [i] The bottom line is that meat eating is allowed, traditionally limited by the laws of kashrut, but not seen as the ideal.

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[12] Jake’s Computer Rights Aaron Frank

D

Jake wrote us this letter: ue to a recent incident, I have been grounded and cannot use the computer (I am gonna get in trouble for sending this e-mail).

The thing is, I don’t think my parents have a right to take away MY computer, since I paid for it. Not only that, they expect me to hook the computer back up in the basement, out of my bedroom, so they can use it for their own personal purposes. I am in trouble because I snuck out of the house again, and they caught me though...well, they knew that I snuck out, but didn’t go looking for me. But I could use an opinion: Do they have the right to take away something I paid for, that is mine, and expect to set it up for only them to use it? Not only that, there was some physical internal damage to my computer...and I know it worked just fine before I went to Green Bay, and when they brought it down to the basement (they don’t know how to set it up, they just carried it all down) I am sure they dropped the tower or something since that is the only time it could have been damaged the way it was, and they refuse to admit that they did. Well, the repairs will cost over $150 since the CD drive and floppy drive are severely damaged. The other problems I was able to fix. And of course, I doubt they will pay for the damages.

When else could it have been damaged? Right before I went to Green Bay, it worked fine. Nobody else was in the house except for my parents...and the dogs don’t know how to get downstairs. But my main questions are: Do they have a right to take away MY computer and expect me to set it up for them to use? And should they have to pay for the damages they did?

I just need a quick opinion.

YOU BE THE JUDGE: 36

Solve Jake’s family’s problem.

The Answer to “Jake’s Computer Rights” Before we even enter into the Jewish legal issues surrounding this case, there is a major overarching problem here, mutual respect. [a] The Talmud in Kiddushin discusses obligations of parents and of children. Yet it is interesting to me that the Talmud first discusses the obligations that parents have toward their children (29a). Following that, we see the parameters on Kibud Av v’Em, the mitzvah of honoring parents.

The parental obligation is first because it seems to me that the honoring of parents to its fullest extent comes more easily to a child who feels that the parent honors and respects them and fulfills their end of the bargain. Without a feeling of respect for the children, parental honor would be difficult at best to follow. [b] At the same time, each child is obligated to honor parents even if it is difficult. Even when you think your parents are being unfair, contradicting one’s parents is prohibited unless they tell you to violate the Torah. Rabbi Shimon bar Yohai said that the most difficult to observe of all commandments is the honoring of one’s parents. (Tanhuma Ekev) [c] That being said, the child here is not without blame. He violated the pact of respecting his parents. [d] To address the questions: Do they have the right to take away the computer? Unless he is totally independent and paying for everything on his own, he is still being supported by his parents.

So, especially since it seems as if he shares the computer, their punishment need not apply to the parents themselves. [e] That being said, it is a bad message to send to children that if they buy something that it is only theirs when the parents deem it comfortable. [f] With respect to the damages, the child is still being supported by the parents, and in the end, the financial issues are up to them. Once again, however, if the parents refuse to pay for damages they caused, they are teaching a bad lesson.

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While I think that the parents are within their rights, part of the responsibilities of parents the Talmud enumerated are to teach the child Torah. By teaching children to shirk financial responsibilities, parents teach their children to violate Torah, and in turn, they violate the commandment of v’Shinantem l’Vanecha (”and you should teach them to your children”).

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[13] Two-Story Falafel

U

zi owns an Israeli restaurant in New York. He sells the usual Middle Eastern fare. On the table there are two menus: one in English and one in Hebrew.

The prices on the Hebrew menu are twenty percent cheaper than those on the English menu. Uzi claims that he is giving other Israelis a discount. One of his American customers who read both menus claims that he is cheating non-Hebrew-speaking customers.

YOU BE THE JUDGE:

Is right for Uzi to run a restaurant with two prices for the same falafel?

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The Answer to “Two-Story Falafel” [a] There is a basic Jewish legal principle called Ona’ah that is usually translated as fraud (Bava Metziah 51a ff). It says that a person must charge fair prices and not trick someone into paying more. [b] A customer has an obligation to know market conditions before starting to bargain—but the seller can not trick a customer into believing that this price is the market condition. In other words, a person can charge whatever he wants, and if the customer pays the price, the customer loses. But if the seller tells the customer, “This is what everyone is charging, go look,” the seller has violated Onah and the deal is not valid. [c] Charging two different prices is not valid unless (1) the conditions of two markets are different, (2) a customer is a discount or volume buyer, or (3) the cost or the nature of the goods has changed. [d] Therefore, charging two different prices in Hebrew and English is wrong, unless the nature of Israeli buyers and American buyers is such that they have different cost expectations in their markets. (A complicated issue—but because this is the same store and not two stores, the answer to this is “wrong.”)

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[14] The Ethics of a Parking Ticket

M

r. Klein was in a hurry. He was late and frustrated. He circled the block once and could find no place to park. He pulled up to a red (no parking) curb, got out of the car, and told his daughter Shana to follow. Shana told him, “Dad, this is a no-parking area.” He said, “Big deal. If the police come they will give me a $30 ticket. I can afford the ticket. I can’t afford to spend another twenty minutes finding a parking space. We are late.” She said, “But Dad, it is against the law.” He answered, “The law says, ‘If you get caught, you get a ticket.’” Shana didn’t answer with words, but she gave him a really big frown.

YOU BE THE JUDGE:

Was Dad right that it was okay to park illegally if you are willing to pay the ticket if you get caught, or is Shana right that you should never break the law?

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The Answer to “The Ethics of a Parking Ticket” [a] In the Talmud, Rabbi Samuel teaches a basic principle, “Dina d’Malkhuta Dina,” the law of the land is the law. This means that unless following the law of your government leads to the violation of Torah law, you have to follow it—just as if it were Torah. (Bava Kama 113a, Bava Batra 54b, Nedarim 28a, Gittin 10b) [b] Most examples in Jewish law that use this principle involve taxes.

In the Talmud we are told that you can even take a false oath involving taxes—something that is against Jewish law— but you can only do so if (1) a wicked government is demanding unfair taxes, or (2) (as used to happen) the government sold the right to collect taxes to an individual who was being unfair in what was demanded.

Even if taxes are high, if they are fair, they must be honestly paid. (Nedarim 28a) [c] If a store is breaking the law (by not paying taxes, etc.), you are not allowed to shop there, even if you are getting a good deal. (Rabbi J. B. Soleveitchik, D’var Avraham Vol 1. p. 14) [d] One is not allowed to hide criminals and help them escape punishment if they are guilty. (Rashi, Tosefot, and Maharsha to Nidah 61a). [e] Based on all of these rulings, and using the principle of Dina d’Malkhuta Dina, the father cannot park wherever he wants for three reasons: 1. It is breaking the law on purpose—and that is against the principle of Dina d’Malkuta Dina.

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2. He is stealing or making life dangerous for others. Meters are designed to make parking fair.

No-parking zones are designed to make traffic safe. When you park where you want, you are taking something from someone else. [f] He is “putting a stumbling block before the blind” by teaching his child that it is okay to break the law when you decide. This means that the child may break other laws based on the father’s example. Based on this example, I can break the government’s laws, my parents’ laws, or God’s laws, as long as I am willing to pay the fine. This destroys all sense of authority and order. Not a good idea.

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[15] Absolut Confrontation

J

oan is seventeen. She has a friend, Rob, sixteen, whom she believes has a serious drinking problem. She believes that he is drinking just about every day and may be an alcoholic. Liquor is hidden all over his room, and he is always finding ways to buy more. Not only is he majorly drunk at every party, but often when they talk on the phone at night, it seems that he is drunk. Joan has talked to Rob about it, and he says, “Don’t worry, I can handle my liquor.” He says, “Just forget about it. It is not your problem—and there is no problem.” She wants to know if she should do something more.

YOU BE THE JUDGE:

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What should Joan do?

The Answer to “Absolut Confrontation” [a]

[b]

The Talmud offers a definition of being drunk. One who is drunk cannot speak in the presence of a king. One who has drunk enough to be happy (but who is not drunk) can speak in the presence of a king. (Eruvim 64a) Here, a king may also be take as “The King,” God. If you have drunk enough to numb your connection with God, you are drunk.

In the Shulhan Arukh they make it clear that a drunkard (alcoholic) is one who has become so drunk that his/her judgment is messed up the way that Lot’s was. (Yoreh Deah 1.8) [c] In the Talmud we learn that an occasional drunk is exempted from the punishment for crimes s/he commits, but one who is regularly drunk or excessively drunk can be executed, flogged, or fined for the crimes committed while drunk. An occasional drinking incident is one thing— regularly drinking or massive drinking is another (Eruvim 65a).

[d] In Deuteronomy 4:9 we are told “Take care and be careful to guard yourself.” Maimonides expands this and lists things that risk your health that are forbidden because they are dangerous (Hilkhot Rotzeah 11:4). This creates a Jewish value called ha-hovel b’atzmo—the rule against injuring one’s self. [e] He adds that hurting one’s self is not a matter of personal choice—other people have an obligation to try and stop you. He says, “If one says I want to put myself in danger, what concern is it of others?, that person should be flogged.” (Hilkhot Rotzeah) [f] Stopping other people from harming themselves is an act of loving your neighbor (Hilkhot Deot 6.3). This expands to a Jewish value called Efroshei m’Isura—keeping a person from doing that which is forbidden.

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[g] In a book called Reform Jewish Ethics and the Halakhah edited

by Eugene Borowitz, Judieth Brazen and Susan Freeman create a similar case in an article called “Intervening in the Life of the Alcoholic.” They write, “We believe that a friend has a Jewish ethical obligation to intervene as a result of his friend’s drinking behavior. He has an obligation to do whatever he can to deter his friend’s self-destructive behavior.”

One can argue the best intervention—but one must do what one can to stop this destructive behavior (and not just say “I tried” or “What can I do?” or “It is his choice”).

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[16] Talmudic Gun Control

T

his is a real case. Isaac Goldstein owns Rocky’s Pawnshop in Dallas, Texas, and sells lots of guns. J. David Bleich is a leading Orthodox legal scholar who wrote a public letter to Mr. Goldstein telling him it was wrong to sell guns.

He wrote, “A sticker on the door of your shop reads ‘Guns Don’t Cause Crime Any More Than Flies Cause Garbage.’” Then he added, “Yes, Mr. Goldstein, flies do not cause garbage, but garbage does attract flies. Guns may or may not cause crime, but crimes of violence cannot be committed without tools of violence. Self-restraint in the sale of weapons is a small enough price to pay for even marginal enhancement of public safety.”

YOU BE THE JUDGE:

Should a rabbi send a letter to a newspaper telling a Jew not to sell

guns in his store?

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The Answer to “Talmudic Gun Control” There are two issues at stake here. (1) What does Judaism have to say about selling guns?

(2) Assuming that selling guns is a bad thing, is it okay to publicly embarrass someone in order to get him to stop? [a] In his public letter Rabbi Bleich quotes Maimonides (Hilkhot Rotzeah 12:12, paraphrasing Avodah Zarah 15b): “It is forbidden to sell heathens weapons of war. Nor is it permitted to sharpen their spears, or to sell them knives, manacles, iron chains, bears, lions or any object which can endanger the public; but it is permitted to sell them shields which are only for defense.” While there is a need to discuss the meaning of “heathen,” the basic goal of keeping society as a whole safe is clear. [b] Rabbi Bleich continues to quote Maimonides, “By selling arms to a heathen one strengthens the hands of an evil‑doer and causes him to transgress. Anyone who strengthens the hand of a person who is blind (meaning that s/he does not see the path of truth because of the desire of his/her heart) is also violating the commandment, ‘You shall not put a stumbling block before the blind’ (Leviticus 19.14). This makes, in Jewish terms, the person who sells a gun an accessory before the fact.” [c] In Judaism, safety is a religious concern. The Bible requires that a roof be properly gated in order to prevent people from falling off of it (Deuteronomy 22:8). This commandment is understood by the Talmud as a general directive to remove any safety hazard (Bava Kamma 15b; Shulhan Arukh HM 427:8). Contemporary rabbinic authorities include in this commandment an employer’s responsibility to ensure occupational safety (Piskei Uziel 47) and an injunction against reckless driving (Minhat Yitzhak 8:148). Someone who refuses to remove a safety hazard 48

can be punished by excommunication (YD 334:7). In general, safety regulations are treated with far greater stringency than any other section of halakhah (YD 116:7). [d] Rabbi Bleich concludes: “Although halakhah is extremely concerned about safety, it does not prohibit the ownership of guns. However, recognizing that a gun is a dangerous object, halakhah (like many current gun control laws) requires that owners and vendors of guns take all possible precautions to prevent their guns from causing any harm.� [e] Therefore, there is a strong Jewish foundation for gun control, though laws about owning a dangerous dog tell us (a) it is forbidden (Bava Kamma 79a), (b) unless there is a clear danger to the owner or his/her property (HM 409:3), (c) but then the responsibility to keep the public from harm falls on the owner in a big way (Shabbat 63b) (Hullin 7b; Terumat Hadeshen 2:105).

This may give permission to own guns, but not to sell them, and puts a huge mandate on gun safety. [f] We have spoken before about the mitzvah of tokekhekh rebuke. (Lev 19.17) It requires a person to tell another person when he is doing something wrong. While embarrassment of another person is usually forbidden, (BM 59a) one is allowed to do so in order to prevent harm to person or property. (Yevamot 65b).

Therefore, Rabbi Bleich’s actions are consistent with his understanding of Jewish law and seem to be appropriate.

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[17] Books Saved from a Fire

R

abbi Meir ben Barukh of Rothenberg, Germany, was a leading Jewish legal figure in the mid1200s. He solved this case. Try your hand at it. A fire broke out in a town and spread rapidly. Everyone ran out of fear. One Jew stayed long enough to save a really valuable book whose owners had abandoned it.

After the fire, the owners wanted their book back (but were willing to pay a reward). The man who risked his life to save the book claims that the book is now his because it would have been burned up without his efforts.

YOU BE THE JUDGE:

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Who gets the book?

The Answer to “Books Saved from a Fire” [a] The answer to this case is based on a Jewish legal principle called “Hefeker.” It means “abandonment.” The idea is this: When a person loses something, until when does it have to be returned? The answer: Until it is “Hefeker.” When is that? When the original owner gives up hope of ever recovering it. In other words, when it is abandoned. There are rules about how long that takes, but in general, if the object can be identified, “a year and a day,” and if the object cannot be identified (if it has no distinguishing, describable attributes, like a twenty-dollar bill) immediately. [b] This is not such a crazy idea, because it is just like the laws of salvage at sea. Once a ship or a cargo is abandoned, it is available for salvage. [c] In this case, since the owner of the book abandoned it and had no intention of recovering it, it is considered “hefeker” and available for acquisition by the person who rushed into the fire. [d] The Talmud has a similar case. In Bava Kamma 155a we learn about this situation. One person is carrying a cask of wine along a road; another is carrying a cask of honey. Honey is worth more than wine. The honey cask breaks and starts to leak. The person carrying it gives up hope of bringing it to market. The second man then pours out his wine and uses his cask to catch the dripping honey. [e] The Talmud rules that that the man saving the honey gets only as much honey as would cover his effort—because the honey he saved was not really ownerless, and because it was not really on the edge of complete destruction. Much of it could be recovered if the owner returned with another barrel. [f] But in the case of the fire, the book was about to be completely destroyed, the owner had given up hope, and therefore the man who rescued it gets possession.

That was the answer given by Meir ben Barukh of Rottenburg.

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[18] Homework Wars

S

arah and Deborah have never been friends and have never liked each other, but they do live close to each other. They are always in the same carpool.

When Deborah is sick, Sarah makes a point of bringing her books home so that she can do her homework. One time Sarah forgot a math book she needed to do her homework. She called Deborah and asked to borrow it. Deborah said, “No.” Today, Deborah did the same thing. She called and asked to borrow Sarah’s book. Sarah doesn’t think she will have time to do her math early enough to lend the book to Deborah. Sarah and her mother disagree.

YOU BE THE JUDGE:

Does she have to make her own life difficult to help someone who would not help her?

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The Answer to “Homework Wars” Does Sarah have to lend her book to Deborah and make her own life difficult, even though Deborah wouldn’t lend Sarah her book last time? [a] This case has everything to do with revenge. It goes back to the Torah, which says “You shall not take revenge, nor shall you hold a grudge against your neighbors.” (Leviticus 19.18) But when we think of holding a grudge, we think of people who don’t talk to each other for years.

And when we think of revenge, we think of people hurting or killing each other out of anger. If Sarah won’t lend the book, would it REALLY be a case of revenge? [b] The Talmud gives us the accepted Jewish definition of revenge. It says: Elizabeth asked John to lend her a hammer and John refused. Several days later, John asked Elizabeth if he could borrow a screwdriver and Elizabeth said, “Well, when I needed a hammer, you refused. So why should I lend you my screwdriver?” (Yoma 23a). [c] The concept is simple: Even the smallest types of revenge are forbidden. This is because the rabbis recognized that little tiny forms of revenge could lead to bigger and bigger forms and could eventually end up in all‑out grudge holding, injuring, and even murder over something that started small. [d] So according to Jewish law, Sarah does have to lend Deborah her book. It is natural for anyone to want to not lend the book. Here, the Torah is asking us to go against our own feelings and do the right thing.

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[19] Honor Code

A

aron Schein, 12, wrote the following question to Randy Cohen, “The Ethicist,� a columnist for the New York Times: I go to a public middle school with an honor code that requires us to report cheating. Is it fair to ask us to police one another? Is it ethical to refuse to cooperate?

YOU BE THE JUDGE: the Jewish answer be?

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If he had asked his rabbi, what would

The Answer to “Honor Code” This case involved a middle school code of honor. [a] Max Samis, one of the C.Ha crew wrote to us: “Haven’t we done something like this before? All right, here we go: Jewish law, and I agree this time, says that you need to confront the person and get them to confess themselves. If they refuse, I’m pretty sure that you are supposed to tell someone else. I am 99.9% sure that that is the Jewish law.” [b] Max is right and wrong. He is right that the mitzvah of tokhekhah, rebuke, would require you to try to talk your friend into doing the right thing. (Lev 19.17) [c] He is also right that cheating is a kind of stealing—and that violates one of the Ten Commandments. Had your friend stolen real things, you would have had to protect the property of the person whose property was taken and tell if that would return or compensate the theft. But here the cheater “steals ones’ mind.” He is cheating a teacher’s opinion of him/her. If grading is on a curve, then the problem is more complex. [d] Here is where Max is wrong. The Babylonian Talmud, Pesahim 113b, tells a story of Zigud, who saw a crime and went to Rabbi Papas. Rabbi Papas told him not to report the crime. He explained that one witness cannot convict a person—that takes two witnesses. All you can do by reporting what you saw is ruin someone’s reputation. This is called Lashon ha‑Ra. That is gossip, and gossip is forbidden. Had there been two witnesses, telling is a mitzvah. With one witness your telling is actually wrong.

[5] The same applies here with cheating. By telling, you ruin the reputation of someone without providing the information to convict him. Telling the truth can also be Lashon ha‑Ra.

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[f] The most moral course is to compaign against that part of the honor code and get it changed. If you actually saw a friend cheating, you would be caught between two Jewish values.

(1) Not gossiping, the one we discussed (2) Dina l’Malkhuta Dina—following the law of the land.

I do not know how to resolve that problem, because I have not yet found sources that test those two values in this kind of issue. But this is more an issue of protecting reputation that preventing harm. [g] One final thought: a person is allowed to embarrass another person to (1) prevent harm to person or property, or (2) help them learn and change their behavior. If you think your friend’s getting caught will allow him/her to change in the future (and that doesn’t mean cheating more carefully), it would indeed be allowed and encouraged. If it leads the cheating to continue more carefully, that it is forbidden.

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[20] The Bulldozer That Gored

A

man was using a bulldozer to stockpile gravel.

He took a break and left the cab unlocked and the key in the ignition. When he returned, the bulldozer was missing. He discovered that while he was gone the bulldozer had been set in motion and had crashed into the side of someone’s house. The person whose house had been damaged filed suit against the operator who had left the keys in the bulldozer and asked that he pay for the destruction done to the home.

YOU BE THE JUDGE:

Who should pay to fix the house when we can’t find the person who actually drove the bulldozer into it?

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The Answer to “The Bulldozer That Gored” One man leaves keys in a bulldozer and someone else drives it into a house. Is the man who left the keys responsible for the damage to the house?

In American law it is called “an attractive nuisance.” In Hebrew we call it “the case of the pit.” It comes from the Torah. The Torah, Exodus 21.33‑34, says: “If one person digs a pit and does not cover it and an ox or donkey falls into it, the one who opened the pit is responsible for paying for the damage.”

In the Talmud the rabbis make it clear that anytime you leave something that could cause damage and you do not protect people from it, you are responsible for the damages. In this case, leaving the key in the bulldozer was like leaving a pit uncovered. Therefore, even though he was not driving, the driver needs to accept responsibility.

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[21] Shabbat Doctoring

M

elissa is feeling really bad. Even though it is Shabbat she goes to Dr. Rabinowitz, knocks on the door and asks for help. He brings her into his home office, examines her and tells her what treatment she needs. Next week Melissa is really surprised to find a bill from the good doctor in the mail. She complains. “It was Shabbat. He’s Jewish. He can’t take money for work done on Shabbat.” Melissa asks her rabbi what to do.

The rabbi makes you part of the Bet Din.

SO, YOU GET TO BE THE JUDGE: Should Melissa pay the bill?

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The Answer to “Shabbat Doctoring” Can a Jewish doctor charge for emergency medical treatment administered on Shabbat? [a] Judaism believes in “doctoring” and not just in faith healing. (Ex. 21.19, Deut. 22:2) [b] The Torah teaches that one should not work on Shabbat. (Exodus 20:9‑10, etc) [c] One may “break” the Shabbat and “do work” in order to save a life. The act of saving a life is called Pikuah Nefesh, and we learn in Yoma 8.6/35b, 85b, based on Leviticus 18.5, that Pikuah Nefesh suspends the Shabbat rules. (Shulhan Arukh, Orekh Hayyim 329.3) This means that a doctor may “work” on Shabbat when a life is even slightly possibly at risk. [d] One should not pay a worker for work done on Shabbat. It is, however, possible to hire a person for a week, a month or a year, and have Shabbat work included in that larger payment.

(B.M. 58a, Mishnah Torah, Shabbat 6.25) [e] Rabbi Yaakov Weil and Rabbi Yisrael Bruna write (Responsa Maharai Bruna #114) that a midwife can be paid for a delivery on Shabbat because it is part of a larger framework of care before and after. Rabbi Chaim Modai of Smyrna writes that the same is true for doctors but suggests that this should also include aftercare so that the payment is not just for Shabbat. Rabbi Chaim Yitzchak Algazi and Rabbi Josef Teumim, among others, expand this ruling. Rabbi Elazar Lowe (Pekudat Elazar #29) makes it clear that the exception to take fees is because this act is a mitzvah, but Rabbi Sinai Schiffer (Sitri Umagini #15.2) says that they may do the work but not take fees, explaining that the original principle was for midwives, not doctors. [f] The discussion continues with some rabbis on each side, but the bottom line seems to be this.

Doctors can work on Shabbat when the health of their patients seems to be at risk. They may charge for this work, but it is better that they be paid in the context of a longer relationship. If a fee includes a follow‑up visit, the conditions of Jewish law are satisfied without conflict.

Drawn from an article by Fred Rosner in the Journal of Halacha and Contemporary Society, Number XL.

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[22] Many Unhappy Returns Aaron Frank

A

Jewish man receives a box of Christmas cards in the mail from a Christian orphanage. They ask him to either pay $10.00 or send the cards back in the mail. Sending the cards back in the mail will cost $2.49. He thinks that it is unfair that he must spend money either way to get rid of a box of Christmas cards he never wanted.

The law says he is under no obligation to return them or pay the money, because they were unsolicited. One of his friends says sending them back is the right thing to do (otherwise it is stealing). Another friend argues that sending them back only allows someone else to be stuck in the same situation.

YOU BE THE JUDGE:

What should the man do? Would it change if he got Hanukkah candles from an Israeli orphanage?

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The Answer to “Many Unhappy Returns” [a] It seems to me that there are two issues at work in this case: tzedakah and ownership. If the person wants to give money to the orphanage, it is certainly his right, and he should be applauded for doing so. The same would apply in the case of the Hanukkah candles. If he wants to support the institution, he is welcome to do so, yet in the case of Hanukkah candles, they should belong to you in order to perform the mitzvah. In both cases, if the person wants to use the product, I would encourage him to send money. [b] Separate from this being tzedakah, this is an unsolicited offer from the orphanage. In his book Ethics of Business Finance and Charity According to Jewish Law, translated by Rabbi Eliyahu Touger (Vol. 3, Ch. 2), Rabbi Ezra Basri points out the fact that there is a fundamental idea in the Talmud with regard to a business transaction. It states that local custom has binding authority. As described, according to American law, there is absolutely no obligation to either pay the ten dollars or to send it back, paying $2.49. Therefore this is not a legal obligation and the person has no obligation to pay anything. This is no different whether it is a Christian charity or a Jewish one. [c] Additionally, there is another possible principle at work. It is taught that one’s domain cannot acquire for him without his knowledge. (If someone throws something into your yard, it is not automatically yours just because it is now on your property. It is only yours if your want it.) The mail can also be seen as one’s domain, and “a person who does not desire to acquire an article does not acquire it because it is in his domain.” It still seems that the man has every right to throw out this false acquisition.

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[23] Is Blood Thicker Than Ethics?

T

he Los Angeles Times reported that when a suspected drunk driver hit a disabled car that plowed into four people standing on the roadside, Jadine Russell, a 55-year-old mother of five and a devout Jehovah’s Witness, was injured. She died hours later after refusing a blood transfusion that might have saved her life. “No blood!” she stated at least ten times to rescue workers and emergency-room physicians. She was so adamant in her beliefs that she even roused herself from unconsciousness and tried to pull out an intravenous line. In a trial that began Wednesday, jurors are being asked to decide if convicted drunk driver Keith Cook was solely responsible for Russell’s death and therefore guilty of murder, or if the woman’s religious beliefs brought about her demise. “This is a fascinating case,” said Laurie Levenson, associate dean at Loyola Law School. “Did the defendant kill her, or did she kill herself?”

YOU BE THE JUDGE:

Should a Jewish doctor have listen to Janine’s Russell’s request and not given her a blood tranfusion, or should that doctor follow Jewish values and “choose life”?

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The Answer to “Is Blood Thicker Than Ethics?” [a] The heart of this question is the relationship between personal autonomy (individual freedom) and religious values (God says you should do this). Rabbi Zev Schostak, in his article, “Is There Patient Autonomy in Halakhah?” (Jewish Medical Ethics, Vol. II, No. 2, May 1995), teaches that the right for a patient to decide what is done to her or his body is a major foundation of medical ethics. Yet at the same time there are other important considerations. [b] In Jewish law, protecting life is more important than personal freedom. “Although there are those who wish it to be so, self-determination is not universally recognized as the paramount human value, [the sanctity of life] as an absolute value over rides considerations of personal freedom.” (Bleich, J.D. The Moral Obligations of the Physician In Rabbinic Tradition). While a patient’s right to decide his or her treatment exists in Jewish law, refusing a blood transfusion would not be included within this right. [c] It seems that the key verse that gives the physician the obligation to put forth her or his best efforts is the verse in Leviticus that tells us “do not stand on your neighbor’s blood, I am God” (19:16). This prohibition gives us the commandment that we cannot stand idly by while someone is dying; we must do what we can to save him or her. (Talmud, Sanhedrin 73a) [d] Rabbi Moshe Tendler and Fred Rosner, M.D., address the very question of Jehovah’s Witnesses in their book Practical Medical Halakhah. They first advise the Jewish doctor not to take the patient. If the doctor does accept the patient, “the physician should assure the patient in advance that if at all possible he will use blood substitutes.” (p. 164) Yet, although the wishes of a patient are of great importance, they are secondary to the will of God and Rabbi Tendler says that, if a transfusion is the only thing that will save the person, it must be administered. [e] The only other consideration is the legal ramifications of such an action. Going against a patient’s wishes could result in professional discipline. Although a deeper legal discussion is necessary, it seems that there are plenty of other doctors in the world and saving a life, as the Tur quotes at the end of its explanation of the principle of Lo Ta’amod al Dam R’ei‑ekha (do not 64

stand idly by while someone is dying), is like enabling a whole world to exist. Harei Ki’elu Kayam Olam. (Tur, Hoshen Mishpat, 426)

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[24] Can I Sell Death and Disease?

D

avid writes, “After school I work in a convenience store. Part of my job is selling cigarettes to customers. Recently I studied a Jewish law called “Lifnei Ever,” putting a stumbling block before the blind. (Lev. 19.14) My teacher said that one of the meanings of this law was that Jews should not help people hurt themselves or hurt others. Helping them in that way was another kind of ‘stumbling block.’

I know that cigarettes are harmful. I know that by selling them I am helping customers hurt themselves and others. I also know that I cannot keep my job if I refuse to sell them. Do I have to go looking for a new job?”

YOU BE THE JUDGE you can.

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and give David the best Jewish advice

The Answer to “Can I Sell Death and Disease?”

Is it wrong to take a job where selling cigarettes is part of your responsibilities? [a] The Torah says, “Do not put a stumbling block before the blind.” (Lev. 19.14) Rashi explains, “This law refers to a person who is blind to the consequence of his/her actions, not just to one who is suffering from physical blindness.” [b] In the Talmud, (Pesahim 22a) Rabbi Natan said, “One cannot offer a cup of wine to a Nazir (one who has taken an oath not to drink) nor offer a limb from a live animal to one who is a Noahide (one committed to follow the seven commandments God gave Noah including not eating limbs cut from living animals.) These violate the commandment of livnei ever (stumbling blocks before the blind).” This would be like offering a drink to an alcoholic in recovery. [c] In Moed Katan 17a, another Talmudic passage, we are told that a father cannot strike an adult child because this might tempt the son to hit him back. If an adult son hits his father, the penalty is death. (Exodus 21.15) Starting a chain reaction that might lead to a serious crime is considered “putting a stumbling block before the blind.” [d] Three different opinions are taught in the Shulhan Arukh: (1) “One may never help a person commit a sin.” (Maimonides teaches this opinion but most Ashkenazic authorities reject it). (2) The rabbis added a prohibition to the Torah that one cannot help a person in sinning, even if s/ he can get the same help elsewhere. (RaN). (3) “It is permissible to help a person commit a sin if others will do so if you do not.” In other words, some opinions quoted in the Shulhan Arukh would let you sell the cigarettes (because they can be bought everywhere) and some would forbid it.

Based on these interpretations, a clerk in a store may sell cigarettes. Buying cigarettes for someone would be a different issue.

(Taken from “Enabling a Jew to Sin: The Parameters,” Rabbi Michael Broyde & Rabbi David Hertzberg, The Journal of Halacha and Contemporary Society. Spring 1990)

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[25] Mom’s Payback

A

uto mechanic Kenneth Arrowood filed a lawsuit for $2,613 in Cleveland in July against his mother, citing her failure to compensate him for fixing her pickup truck. A week later, Hazel Arrowood, 78, filed a countersuit, pointing out the many uncompensated services she provided him over the years as mother, cook, nurse and bail bonds person, among other things, and recommending that the court give Kenneth “the whipping that he so rightly needs and which I failed to give him as a child.� (She won the lawsuit, but the judge declined to spank Kenneth.)

YOU BE THE JUDGE:

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How would you resolve this case?

The Answer to “Mom’s Payback” Unfortunately, these are the kinds of cases we are seeing too often in the news. Parents and children are suing one another over financial issues.

It seems that Jewish law would stand firm against both of these cases. [a] Kenneth is violating the principle of honoring one’s parents. The story is told in the Talmud (Kiddushin 31a) of Dama ben Netina, who risked tremendous financial reward by honoring his father. Rabbi Tarfon is also a great hero of this commandment as he, on page 31b, would act constantly helping his mother to rise and to lie down. Rabbi Yosef used to say, when his mother approached, “the Divine Presence is arriving.” One has the obligation to provide food and clothing for parents as well. (31b) Parents are seen as partners with God in creation, and therefore it would be shameful to publicly humiliate parents over money. [b] At the same time, parents must respect children. Hazel seems to have little ground for her countersuit, since she was fulfilling the obligation of parents to children. The Talmud points out that parents have the obligation to their children; among the many is to teach Torah and to teach them a craft (Kiddushin 29a). [c] Rabbi Gerald Blidstein points out that the physical providing is included in the parent responsibilities, for they help to lead him on the straight path. This is the obligation of a parent that cannot be expected to be paid back. Therefore her lawsuit is also inappropriate.

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[26] Paper Wars

M

rs. Chitzik, the Hebrew School teacher, photocopied a page out of the siddur so that her students could practice reading the prayer. At the end of class, some of the students put their copies in their notebook; others wound up on the floor or left on the desks. That is when the fight started. Susan began to gather up the left over papers. So did Sara.

Susan wanted to take the papers to a recycle bin. She argued that this is making the world a better place by preserving resources. Sara was going to give them to the Rabbi so that they could be stored with old prayerbooks and later buried.

YOU BE THE JUDGE: Which of the two girls’ plans should be followed?

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The Answer to “Paper Wars” This answer is going to be very unsatisfying, but that is part of what makes it fun. [a] There is a conflict between Jewish values. [b] One value is one of the Ten Commandments, not taking God’s name in vain. That is part of the reason that some Jews write “G‑d.” [c] The second value is called Ba’al Tahshit and it teaches that we are commanded not to waste anything that can be useful to people. Recycling is a mitzvah. It is based on a Torah verse that says, “When you make war you cannot cut down fruit trees.” (Deut. 20.19)(Mishneh Torah, Laws of Mourning 14.24) [d] The problem here is that different religious movements will tend to solve this differently.

Traditional Jews will protect God’s name at any cost—and therefore put these papers in a geniza (storage place) until they can be buried. More liberal Jews will tend to say that “recycling” is a good end for a holy text. To some decree this is a good measure for your level of granting authority to Jewish tradition. Gunther Plaut, in T’shuvot for the Nineties, suggests that if the recycling process completely destroys the print, it can be considered the same thing as burying—but this one is in your hands.

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[27] Tunnel Vision

A

real British case. A train that was used to haul coal ran through a 66-yard tunnel.

The train did not run very often and many town people used the tunnel as a shortcut into the village.

One rainy day in 1956 a woman who was walking though the tunnel was hit and injured by the train. She sued the railroad, arguing that they had hit her.

The railroad argued that she was trespassing on private property and had no business being in the tunnel.

YOU BE THE JUDGE: Who is responsible to pay for the hospital bills, the woman or the railroad company?

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The Answer to “Tunnel Vision” This is another “attractive nuisance,” as in “Case of the Pit.” If a person digs a pit and leaves in uncovered, on private or public property, and someone else falls in, the person who left the pit uncovered is responsible—because by creating the hazard, s/he invited the accident (Bava Kamma 5.5).

The end result here is that while creating a tunnel that invites people to use it as a short cut, the railway owners must also protect people from their own bad judgment. This is also what the British court found.

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[28] Ill-Gotten Gains

R

alph Rosenfeld bought a really hot red 1986 Camero from a local police auction. He bought the car “as is” and started having car trouble. It stalled too often. The car had been impounded from a drug dealer and was being sold off by the police. Ralph took the car to his mechanic who did some work and found that $17,000 hidden in the fuel tank was messing up the engine’s gas flow. The mechanic was a lawful guy and he called the police.

They confiscated the money as part of that which should be taken from the drug dealer’s ill-gotten gains. Ralph is suing the police, arguing that the $17,000 was part of the “as is” condition of the car.

YOU BE THE JUDGE: What happens to the money?

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The Answer to “Ill-Gotten Gains” [a] In the Talmud there is a case almost exactly like this one. (Jer. B.M. 2.5) The students of Rabbi Shimon ben Shetah buy him a donkey as a gift. He is old and the donkey will help him earn a living. They buy the donkey, the saddle, the blanket, and everything on it in a precise formula from an Arab merchant. Shimon finds the jewel on the animal as he is grooming it. He demands that his students return it. They insist that it is legally his. He persists that it be returned. When they bring it back, the Arab responds, “God bless the God of Rabbi Shimon bar Shetah.”” [b] The idea in this story is that while he could “legally” keep the jewel, it was not the right thing to do. Likewise in our case, while “as is” means that he could insist on keeping the ill gotten drug money, doing so would not be “the right thing to do.” This is a perfect case where law and right are not exactly the same.

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[29] Ten-Year-Old Murder

W

hen John Venebles and Robert Thompson were ten years old they kidnapped, tortured, and killed a two-year-old baby named James Bulger. They have both spent eight years in a jail as minors, but are currently being released by the British authorities who believe that they are no longer a threat to the public. But, some people, including the Bulger family, say that these boys should never be released.

YOU BE THE JUDGE:

Should someone who commits a crime at the age of ten be held fully responsible for his or her actions and therefore never be released from prison? Do you think it is possible to repent for an awful crime like this?

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The Answer to “Ten-Year-Old Murder” Should two eighteen year-olds who committed a murder when they were ten be forgiven and granted release from prison? [a] In the Jewish tradition ten year-olds are guilty of no crime. Until the age of bar (or bat) mitzvah, responsibility for moral actions falls on the parents. So, in a Jewish sense, the parents of these two boys are considered to be guilty of murder for falling to instruct and control their sons.

(Avot 5.21) [2] Judaism believes that t’shuvah (repentance) is possible for all mistakes and crimes except when one sins and plans on being released from that sin by t’shuvah.

[3] Judaism makes a distinction between forgiveness and punishment. We are required to forgive anyone who sincerely makes repentance. But that forgiveness does not necessarily remove the punishment. (Yoma 85b) [4] In the Talmud we are told that “Death and the Day of Atonement can grant atonement only if they occur together with repentance.” The passage explains that a person who truly repents will be forgiven on the day of his or her death or on Yom Kippur (whichever comes first). Later in the discussion we are told that some sins (like murder) are not forgiven until the day of death, but that death need not be premature.

[5] If it believed that they have repented and changed, John and Robert should be granted the opportunity to start over because they can be forgiven for an action committed when they were ten. This includes (a) admitting that what they have done is wrong, (b) apologizing to the parties that were injured—including God, and (c) doing the best they can to fix the situation.

In the case of a death, this means doing everything possible to make the world better—because the direct loss cannot be restored. It also includes (d) making changes in themselves so that they could never repeat the action. (Yoma 85b) [6] The last part of this Talmud text teaches that the two boys may not be completely forgive until they die, because they will carry part of their actions with them until then. But in the long run, God has the capacity to forgive them.

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[30] Nazi Justice

I

ra Kaufman is a lawyer who is sometimes appointed to be a public defender. He is assigned a case where a synagogue has been partially burned and antisemitic slogans written on its walls. The man accused of the crime is a member of a white supremacist group, an American version of the Nazi party.

He has asked YOU TO BE THE JUDGE: Can a Jewish lawyer defend a member of a Nazi group that attacked a synagogue?

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The Answer to “Nazi Justice” Can a Jewish lawyer defend an accused antisemitic terrorist? A case like this was submitted to the CCAR Law Committee by Rabbi Jack Segal of Houston, Tex. It was answered in 1989 and published as case 238 in New American Reform Responsa. This answer is based on that answer.

[1] In the Torah we are told, “Justice, Justice, shall you pursue” (Deut 16.20) and “in righteousness shall you judge your neighbor.” (Lev 19.15) These establish a principal that it is a mitzvah to establish and support just courts. In fact, in the midrash makes it clear that the establishment of just courts was one of the seven Noahide commandments that were given to all of humankind. (Gen. R. 34.18) [2] The Torah demands that the accused be considered innocent until proven guilty. This in turn mandates a close cross-examination of all witnesses. (Deut 13.15) Likewise, the accused must be present during the examination of each of the witnesses who are testifying against her/him (Yad, Hil. Edut 4.1). The examination must concentrate on precise facts and not wander a field. (San. 32b; Yad, Hil. Eidut 18.2; 22:1 ff; Shulhan Arukh, Hoshen Mishpat 15.3; Responsa Rivash #266).

There are strict rules against self-incrimination and no evidence of that kind is permissible (Exodus 23.1; San. 9b; Yev. 25; San. 6.2; 18.6 and commentaries). The defendant may plead on her/his own behalf before the court (M. San 5.4), but he/she is not permitted to say anything that might prejudice the court against him (San. 9.4). If the matter involves a death sentence, then the court remains in session until the individual has been executed so that if any new evidence appears, the execution may be halted (M. San. 6.1; San. 43a and Yad. Hil. San. 13.1ff).

[3] In resolving this question, the Law Committee of the CCAR wrote: “The spirit of traditional legislation would indicate that lawyers in our system must participate in this effort to seek justice. This would apply to war criminals, terrorists or others who may be tried in the United States or in the State of Israel. Jewish attorneys should consider themselves within the framework of tradition if they are appointed to such tasks or wish to volunteer for them.”

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[31] Cassie Bernall Says Yes

T

here is a book called She Said Yes, The Unlikely Martyrdom of Cassie Bernall by Misty Bernall and Madeleine L’Engle. It tells the story of a seventeen-year-old woman during the Columbine school shootings. The two shooters put a gun to her head and asked her, “Do you believe in God?” She realized that her life was in jeopardy and she knew that if she said “yes,” they would shoot her, but she said “yes” anyway.

YOU BE THE JUDGE:

If Cassie had been Jewish and asked for a Jewish opinion, should she have been honest about her faith and died or should she have lied and lived?

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The Answer to “Cassie Bernall Says Yes” [a] The Jewish term for being a martyr is “Kiddush ha-Shem.” It basically means doing things that make God look good. One is allowed to sacrifice one’s life when it expands the public’s notion of God’s holiness. [b] The Talmud is more specific and says that for 610 of the 613 mitzvot (commandments) a Jew should violate the commandment and the Torah rather than die. “Rabbi Yohanan said I the name of Rabbi Shimon ben Yehozadak: If a person is told “Break this law or I will kill you,” a person can break Torah, except for three: public idolatry, sex crimes and murder” (Sanhedrin 74a). This is base on the verse “And you shall live by them” (Leviticus 18:5) and not die by them (the commandments). [c] The question here, therefore, “Is denying one’s faith in God the same as public idolatry?” Probably not. Saying, “I do not believe in God” (even if it is a lie) is not the same as saying “There is no God and people are stupid to believe there is.” The latter might be a problem for some Jewish authorities. [d] There is, however, one exception: the situation in which the entire society is filled with widespread and systematic anti-Semitism. In that case a Jew may not violate even the simplest act or “minor” commandment, even at penalty of death, since this act betrays the entire Jewish people and desecrates God’s name. [e] There are, however, numerous cases of Jews being permitted to lie about Jewishness and faith during the Holocaust in order to save their own lives. (see Responsa from the Holocaust, Rabbi Ephriam Oshry) [f] Had Cassie Bernall been Jewish, Torah would suggest that she “choose life,” lie, and teach about Judaism and her faith in other ways at other times.

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[32] The MP3 Player is Toast

J

ulie bought a new MP3 player and was trying to figure out how to download music into it. She couldn’t figure out which cables to use, and she couldn’t figure out what were the right drivers to install. She asked her friend Debi’s brother Geoff to help her. Geoff told her, “I am not sure that I know what to do. But I will take a try.”

Geoff plugged the wrong thing into the wrong thing and toasted the unit. It is now ruined, and the warranty doesn’t cover this kind of mistake. Julie wants Geoff to buy her a new player. Geoff says, “I told you I wasn’t sure.”

YOU BE THE

JUDGE: Does Geoff have to pay?

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The Answer to “The MP3 Player is Toast” [a] The basic principle in Jewish law is that if a person charges a fee to do work and does damage in the process, that person is responsible for the damage done. (Bava Kamma 26a) [2] If a person does work for free and does damage because of carelessness, that person is responsible for the damage. (Ibid) [3] If an expert does work for free and does damage by accident, that person does not need to pay for any damage. But, if the person is not an expert, and still agrees to take on the job, that person is responsible for the damage unless the owner agrees in advance that the expert will not be responsible for any damage.

[4] In Bava Kamma we learn that an expert knows enough to be careful and not cause damage, but an amateur who is “messing around” accepts responsibility for his/her lack of knowledge. (Ibid.)

[5] In this case, Geoff, who believes he is doing a favor, is actually doing harm.

[6] This case is drawn from Cases in Monetary Halachah by Rabbi Tzvi Spitz. He concludes his writeup by saying, “If Julie was aware that Geoff was not an expert, it would be decent to be lenient in the amount of her claim, since he was only trying to help.”

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[33] Can You Steal a Chance at Life?

R

abbi Ephraim Oshry really had to answer this case during the holocaust. In the Kovno Ghetto the Nazis gave the Jewish council the responsibility to issue 5,000 white cards that were permits to work. It was well known that Jews with a white card would live and Jews without a white card would die. Many Jews were trying to steal these cards from those who had them. Rabbi Oshry was asked two questions: (1) Should the council go along with the Nazi orders to issue these cards? (2) Was it permissible to steal a card from someone else in order to keep your own family alive?

YOU BE THE JUDGE: bad situation?

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What are the best answers in a very

The Answer to “Can You Steal a Chance at Life?”

Should a Jewish council issue work cards that will save some Jews’ lives while condemning others to death? Can one steal a work card and save one’s own life at the expense of another’s life? [a] The case of two Jews in the desert with one canteen yields the understanding that if there is only enough water to save one, the person with the canteen keeps the canteen. This case is processed in two places. In the Sifra we are taught that the rabbinic answer comes from Leviticus 25.36, which says: “That your brother/sister can live with you.” Rabbi Akiva emphasized the words “with you” and established a principle that we don’t reject one life to save another. You don’t share the water when both of you will die—you drink it yourself. You do not judge “whose blood is redder.” You save yourself. (Sifra on Leviticus 25.36). [b] In the Talmud (Sanhedrin 74a) we also learn that one cannot say that one person’s blood is redder than another person’s blood. This signifies that no human being is capable of judging which person is more valuable. We cannot truly see inside a person, and evaluate all the conditions that led to particular behaviors. Only God can do this. [c] Based on these two sources, it would seem wrong of the council to make a judgment and especially wrong to steal the card. But… [d] In the Tosefta we are given a difficult case. A group of Jews are walking along a road. They are confronted by a group that tells them, “Give us one person to kill and we will let the rest go. If you do not, all of you will be killed.” The group must all die rather than choose. If, however, the evil group asks for a specific person by name—then in order to avoid the massacre, the person is given up. [e] All of this forms a background to the real decision made by Rabbi Oshry during the Holocaust.

He based it on a similar decision made by Rav Avrohom DovBer Kahana-Shapira, the Kovno Rabbi. He ruled, “If a decree is issued that a Jewish community will be destroyed and a possibility exists that some part of this community may be saved, the leaders of this community are obligated to make hard choices and save as many as possible.” Rabbi Oshry adopted this decision. He allowed the issuing of white cards.

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[f] Second, he said, “If that is true for leaders of a community, it is also true for the individual.” When the whole community is at risk, each worker is entitled to do what s/ he can to save his/her family—even steal cards.

This case was taken from Responsa from the Holocaust, Rabbi Ephriam Oshry.

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[34] The Dishonest Date

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his is a case taken from Randy Cohen’s New York Times column, The Ethicist. You are a parent. Your 15-year-old daughter has a boyfriend, Zack, whom you like. The problem is that Zack’s parents won’t let their son have a “girl friend” or go to boy-girl parties. Zack regularly calls his home from your house and lies about where he is and what he is doing. You regularly see Zack’s parents at school events, and you know them reasonably well. Do you have an obligation to let them know about their son’s lies?

YOU BE THE JUDGE:

What should

you do about Zack’s phone calls?

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The Answer to “The Dishonest Date” What should parents do about their daughter’s boyfriend who calls and lies to his parents from their house? [a] In the Torah it says: “Keep far from lying.” (Exodus 23.7) The rabbis make a point of teaching that the text says “Keep far from lying” and not “Do not lie.” They explain that there are times when lying is acceptable. This usually involve (a) making peace, (b) protecting someone’s life or property, (c) not hurting someone’s feelings, etc. (Yevamot 65b, Ketubot 17a) [b] Parents generally have an obligation to raise their children to be ethical and moral human beings. That is their obligation to “teach them Torah.” (Kiddushin 30b) [c] Randy Cohen looks at this case and concludes, “There are circumstances when you would be ethically obligated to support a child’s lie—if his parents were not merely unreasonable but inhumane…but this is not such a case.” He also picks up the nuisances that “you should consider the effect of your own behavior on your daughter.” His conclusion is, “You need not inform on the boy to his parents, you should talk to the kids…but unless the boy can be honest…they will have to see each other…and can no longer use your home.”

Here Randy comes close to a Jewish response but misses the third value. [d] It is a mitzvah to tell a person when they are doing something that is hurting you, that is hurting someone else, or that is hurting him or herself. This mitzvah is called tokhekhah (giving “rebuke.”) The tokhehah mitzvah is found in this verse. (a) You must not hate your brother or sister in your heart (b) You must certainly give tokhehah (rebuke) to your neighbor and not carry a sin because of her. (Leviticus 19.17) This comes into play two ways. First, you, as the parent of a teenager have an obligation to tell the boy friend, in a supportive way that he can hear, that lying to his parents is both wrong and a mistake. Your job here is as a Torah teacher: helping him to reflect on his behavior. And, second, you may have an obligation to speak with him, to his parents, and help them reflect on the nature of the rules they are imposing and how they are kind of “putting a stumbling block 88

before the blind,�

leading their son to lie and create distance between himself and his parents.

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[35] Torah from Deep Space Nine

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his week’s case comes from a two a.m. rerun of Deep Space Nine. A crew member is shot with a Jemadar weapon and appears to be dying.

O’Brian, the chief engineer, keeps telling him that he will be fine. He believes that with hope there is the possibility of recovering. Worf, the Klingon security officer, believes that he should be told the truth and given time to prepare for death. They need to choose whether or not to tell this dying patient the truth about his condition.

YOU BE THE JUDGE: What is the right thing to do?

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The Answer to “Torah from Deep Space Nine” Is O’Brian or Worf right? Should the dying patient be told the truth? [a] Telling the truth is a big thing. The Torah says, “Keep far from lies.” (Ex. 23.7) The Talmud adds, “Truth is the mark of God.” (Yoma 69b) [b] The tradition also acknowledges not telling the truth for the sake of peace. God reworks Sarah’s words in order to keep from hurting Abraham’s feelings. (Genesis18.12-3, Yevamot 65b) [c] Even though the Torah cares a lot about truth, it is also concerned with the mental health of patients. The Talmud, Shabbat 128b, says that breaking Shabbat and lighting a lamp for a sick blind woman is allowed because knowing that those taking care of her can see might make her feel more comfortable. [d] Likewise, the Talmud also teaches us, Moed Katan 23b, that it is wrong to give a patient a sense of hopelessness. [e] In the Shulhan Arukh we learn, “When a patient’s condition is leaning near to death, we should tell him, ‘Confess.’ But we should also say, ‘Many have confessed their sins to God and have not died, others have died without the chance to say that they were sorry.’ Even if you confess there is still hope.” (YD 338.1) [f] Rabbi J. David Bleich concludes his study of this question by teaching that telling the truth to a sick patient depends on the patient. Sometimes the patient should be spared. Sometimes the patient will get worse if the truth is discovered to be broken. Sometimes holding back the truth doesn’t really hide and only creates distance. The answer here resides in knowing the dying soldier and using good judgment.

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[36] To Squeal or Not to Squeal

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cott has a next-door neighbor who is friendly but whom he doesn’t really know. The neighbor always says good morning. Scott discovers that the neighbor is growing marijuana in his house. He asks two questions. The first is a Jewish question, the second the obvious question.

YOU BE THE JUDGE: police? Must he tell the police?

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May he tell the

The Answer to “To Squeal or Not to Squeal” A next-door neighbor is growing marijuana. The ethical question that seems obvious in “western” though is “Must one tell the police?” Because of the way the texts grow out of the Torah, the Jewish question is: “May one tell the police?” This discussion grow out of an article by Rabbi Michael J. Broyde in the Journal of Halacha and Contemporary Society, Number XLIII, Spring 2002.BV Based on a discussion in the Talmud, Bava Kamma 115b-117b, Jews were in general not allowed to inform on others to the government—except where life and property were at risk. If this were a murder or an armed robbery there would be no question. [a] The Talmud includes the story of someone who turned robbers in to the Romans. In Jewish law a thief has to pay damages for the theft. (The thief must return the stolen object and pay the victim even more money). In Roman law, thieves were executed. The basic idea that the rabbis taught was that it is wrong to “give up the life” of someone who should only pay a fine. [b] Different rabbis have tried to modernize this law in different ways. Here are three opinions.

1. Rabbi Yehiel Michel Epstein and Rabbi Eliezer Yehuda Waldenberg both taught that one is allowed to inform when the government is just. (Arukh ha-Shulhan, HM 388.7, Tzitz Eliezer 19.52) 2. Rabbi Ezra Batzi wrote in Dinai Mamonot that while governments may be just, the treatment in prisons and in courts is almost never just. So the law in the Talmud should be followed.

(4:5n.1 at page 86) 3. Rabbi Moshe Feinstein (a modern American Orthodox rabbi) wrote that this law must remain unchanged—even in a good society, because the wrong punishment may still be given. (Iggerot Moshe, Hoshen Mishpat 2:29) [c] Therefore, if the crime does not involve violence, destruction of property, or things like that— there are basically two different Jewish opinions: yes and no, and your own decision should follow your belief as to which rabbinic interpretation is right.

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[d] If the neighbor was selling drugs to those who would be injured by them, there would be no discussion about telling the police. This would be an obligation. If you believed that the neighbor was himself being harmed by the drugs, you would not be allowed to ignore this situation. This would violate the Torah law, “You shall not stand idly by the blood of your neighbor.”

These last two questions--Is he being hurt? Is anyone else being hurt?-- shape the times when one must tell— or do something!

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[37] Twin “Nic-o-teens”

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n Wisconsin a pair of twin boys, Bradley and Gavin, ed smoking when they were twelve. Now they are sixteen, and their mother has tried everything to get them to stop. Finally she goes for neighbor’s suggestion. She puts up “wanted posters” of them at every gas station and convenience store around town, telling people not to buy cigarettes for them and to call the police if they see them smoking.

They had regularly gotten their “smokes” by getting people of legal age to do the buying for them. The boys go to court to stop their mother from doing this.

start-

a

YOU BE THE JUDGE:

Does a mother have the right to publicly embarrass her sons this way?

Is she doing the right or the wrong thing here?

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The Answer to “Twin ‘Nic-o-teens’” A mother tries to use public embarrassment to stop her twin teenage sons from smoking. [a] In general we are never allowed to embarrass someone. “Every time you embarrass another person, you make God less. Every time you make another person feel smaller, you make God smaller in the world, because people are created in God’s image.” (Genesis Rabbah 24.7) [b] We should be very careful with our words and our actions not to embarrass someone. Orhot Tzadikim is a medieval book about how to be a good person. In a chapter called “the Gate of Shame” it gives a list of things not to do to others. Read this list.

One must take great care not to put anyone to shame: • When you are studying with someone, you should not say, “You have made a mistake.”

Rather you should say, “This is the way I learned that.”

• One should not call a friend by the kind of nickname that is an insult so that he or she will be ashamed. (Bava Metzia 58b) • If one wants to speak to a friend about someone who has a nickname that is an insult, one should not use the nickname but find another way to identify the person.

• One should not tell a story that embarrasses a person. One should not do it if the person is there. And one should not tell such a story about someone who is not there.

• One who is insulted and shamed should not reply with an insult that shames the other person. [c] The Torah makes it very clear that we cannot embarrass others in public—even when we rebuke them. Rashi on Leviticus 19.17 [d] However, there are time when embarrassment is a necessary and permitted too. The Chofetz Chayim, Sefer Shmirat ha-Lashon, makes it clear that there are three exceptions, a person can be embarrassed if there is no other apparent way of (a) saving a life, (b) saving possessions, or (c) saving spiritual/psychological health.

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[e] Assuming that the mother had exhausted all other means, and because here children’s lives were at risk, embarrassment is allowed. It is like yelling at a child who is running out in the street even though others will hear the “rebuke.” [f] The twin boys in this case appeared in a Connie Chung segment of CNN and thanked their mother. She did manage to motivate them to give up smoking. Here is a small piece of the end of that segment.

BRAD BELUNES: We made a pact with each other not just because of my mom, but with each other. If we’re going to quit, we might as well do it together. And he said, yes, that’s true. So, it worked.

CHUNG: And tell me, what is the reason? Why are you quitting?

GENE BELUNES: Not only this if I’m going quit, I’m not going to quit because they preached to me or it’s bad for you, don’t do it. You know, I’m going to quit because I want to quit.

And I want to quit now.

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[38] Are Clean Flicks Illegal?

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lawsuit was filed in Denver by Clean Flicks of Colorado. It takes movies (like Titanic) and edits out “the dirty parts” so people feel okay about showing them to their families. Several well‑known directors, including Robert Redford and Steven Spielberg, have tried to stop the practice, claiming it destroys their art and their films should be shown the way that they made them. Clean Flicks argues that because they buy every copy they rent and alter them only after they have been purchased, they are only altering their own property. They say it is no different than fast-forwarding through scenes one does not want to watch. The directors argue that Clean Flicks is destroying their copyrighted artwork.

YOU BE THE JUDGE: Who owns the romantic scenes in Titanic? James Cameron (the director) or Clean Flicks (the rental company) who purchased 285 copies to edit and then rent?

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The Answer to “Are Clean Flicks Illegal?”

The big question here is “Who owns a piece of art?” Rabbinic Law has not spoken a lot about law, but it does have a lot to say about Torah interpretations.

[1] In the Talmud the Rabbis teach, “A person who repeats a teaching in the name of the teacher from who they learned it, makes the redemption come faster.” This statement does not give a punishment for noting the source of every idea, but it does offer all of humanity a reward for doing so. (Ta’anit 15b) [2] In Tanhuma, Parashat Bamidbar 22, a midrashic collection, using someone else’s teaching without credit is considered to be out-and-out theft.

[3] In the Tosefta, a set of sources that parallels the Talmud, we are told that quoting a Torah without giving its source is theft—but it is still a good thing to do because it spreads Torah (and giving the source would be even much much better). (Bava Kamma 7.3) [4] In the Shulhan Arukh, a code of Jewish law, scholars are allowed to license their teachings for publication and limit the degree to which they can be quoted. [Hoshen Mishpat 292.35) [5] All of these laws are special because they are about Torah. And, in certain ways, Torah—that was given as a gift from God to people—is the foundation for this work. Art is a little different.

There, the creator probably has more rights of ownership and less of an obligation to share with the public.

[6] Finally, Nachum Amsel, the author of You Be the Judge 2, suggests that the “contract” that is assumed between the renter and the maker includes not altering the art—and so by making its changes (that Nachum would like for his family) Clean Flicks is breaking a contract and cannot do it.

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[39] Hebrew School Exile

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am is a 12-year-old who was arrested for selling his Ritalin as a recreational drug to friends at his private school. Other parents in the Hebrew school have argued that Sam is a bad influence and should not be allowed to remain in Hebrew school. His parents tell Rabbi Shafer that a Torah education may be the one thing that can change Sam’s messed up values. Sam does not want to go to Hebrew school but will not have a bar mitzvah if he is removed from the school. He is not a pleasure to teach.

YOU BE THE JUDGE: Should Sam be removed from the school to protect the other students?

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The Answer to “Hebrew School Exile” [a] It is a mitzvah to provide every Jewish child with a Jewish education. Bava Batra 20b makes it clear that starting just before 70 ce, Joshua ben Gamala made it an obligation for every Jewish community to provide every Jewish student with a Jewish education, and it even sets limits on class size. [b] Even though we believe in universal education, Maimonides taught that one should only teach Torah to a student with good character. He suggests that one should first teach ethics to a student, and only when the student is ready to study Torah, teach Torah. (Laws of Talmud Torah 4.1). [c] In Avot De Rabbi Natan, Bet Hillel argues that one should teach Torah to everyone because there were many sinners in Israel who were brought closer to God through Torah study. (9.9) [d] In Midrash Shmu’el it is explained that while Bet Hillel wanted to teach Torah to everyone, they did not necessarily want everyone in their classrooms. They were willing to teach everyone, but wanted a fence between good students and unworthy ones. (Magen Avot) [e] Bava Batra 20b also makes a recommendation to place unmotivated students next to motivated students so that either (a) the motivation will rub off, or (b) the unmotivated students will not draw the motivated ones away from learning. Including everyone seemed to be important. [f] Rabbi Yehudah ha-Hasid in Sefer ha-Hasidim, 189, tells communal leaders: “It is better to throw out one bad one in order to improve the others who are good.” [g] Still, Rabbi Moshe Feinstein cautions, “If the student has a bad influence on others, certainly it is necessary to send him away. However, this judgment has to be made with great seriousness and much thought, because it is just like a decision of life and death.”

The bottom line is this. If Sam learned from his experience and has done T’shuvah (repented and changed), then he should be allowed to attend class. If the school believes that he is teachable and that school is likely to be a good influence, he should be admitted. But if he is indeed a student who does not want to learn and threatens the ability to teach the rest of the class, the school is right in 101

barring him from school, but then should seek to find a private learning arrangement for him.

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[40] Raccoons in the Wall

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usan is selling the house she has lived in for years.

It has several problems that have never been fixed. When the first people came to look at the house, Susan told them about everything, including the raccoons that sometimes live in the bedroom wall that she has never been able to keep out. (They are not there at the moment because it is the wrong season). Susan’s real estate agent told her to “cool it” and not reveal “absolutely everything” if she wants to sell her home. Susan feels the need to be honest.

YOU BE THE JUDGE: Does Susan have to reveal the raccoons to every buyer?

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The Answer to “Raccoons in the Wall” Does Susan have to reveal everything about her house to people who are interested in buying it? a. Biblical Source: If you sell anything to another person, or buy anything from another person, you shall not wrong one another. (Exodus 25.14) b. Rabbinic Expansions: On Judgment Day a person will be asked six questions. The first is, “Were you honest in your business dealings? (Shabbat 31a) One is obligated to inform the buyer of any defect in an item you are selling, even if the price is reasonable. (Shulhan Arukh, Hosen Mishpat 228.6) You are forbidden to falsely advertise or in any way falsely praise an item you wish to sell. (Sefat Tomim, chapter 5) Susan is “stuck” telling all and telling it truthfully.

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[41] The Dollar Dilemma

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his case was sent to us by one of the classes that read C.ha weekly. One Sunday at Hebrew School, Margery put a dollar in the tzedakah box. Later, when her classmates reminded her that the class was going to the Hanukkah Bazaar, she got upset. Margery realized that she only had two dollars to spend. Two dollars was not enough money to buy anything. She kindly asked her teacher if she could borrow back her dollar from tzedakah and return it next week. Her teacher denied the request, saying it was wrong to take back money from tzedakah.

YOU BE THE JUDGE:

Should Margery be able to

take back her money?

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The Answer to “The Dollar Dilemma” Can money be borrowed back after it has been given to tzedakah. [a] This case is more complicated than it first seems to be. Gifts given to tzedakah are treated as things set aside for God, just like tithes. [b] Once a person makes a commitment to give, that person must give (no changing of the mind). (YD 258.25) If a person makes a commitment in thought to give to tzedakah and never says it out loud, it cannot be changed. (Shevuot 26b) However, a tzedakah pledge can be annulled by a Bet Din (rabbinical court) as long as a poor person has not been promised this specific money. (YD 258.6 based on the Radbaz) [c] Once grain was set aside for the Temple, it could not be used, switched, or borrowed from. (Ta’anit 9a). Money that is set aside for tzedakhah is treated the same way. It is called a Ma’aser, a tenth. In the Bible it is called a tithe. The Noda Yehudah II, Y.D. 199, does give an exception for using Ma’aser. If you lent money to a poor person who was unable to pay you back, you could take from your Ma’aser money if you needed to—and this would then be considered part of your gifts to the poor. This doesn’t cover shopping at a bazaar. [d] The basic answer is that because it is “set aside” for a holy purpose, Tzedakah money should not be “taken back.” But there are two other good answers. (a) The teacher could teach a lesson about free loan societies, an important Jewish value. This was a way of helping a Jew in need.

The class could pool enough money to cover the dollar, which could be paid back without interest at the next session. (b) The teacher could simply lend the money and be repaid the following week as well. The student would still be able to shop, but money set aside for a holy purpose would not be used to serve personal desire.

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[42] The Kushta Case

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his case is based on a famous Talmudic story about a town named Kushta. David is at home enjoying his privacy. Someone from his work calls and wants to talk to him. His son answers the phone. David instructs his son to tell the person from the office that his father is not at home. His son objects to telling a lie for his father.

YOU BE THE JUDGE: Is David asking his son to tell a reasonable lie or is David obligated to answer the phone and talk to the person from the office?

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The Answer to “The Kushta Case” Is it okay to lie about being home in order to protect one’s privacy? [a] In the Talmud we have this story about the town of Kushta: Rava said: “I used to think at first that there is no truth in the world.

But, one of the rabbis, by name of Rav Tavut—others say by name of Rav Tavyomi—who, even if he were given all the treasures of the world, would not lie, told me that he once came to a place called Kushta, in which no one ever told lies, and where no person ever died before the given time. He married one of their women and had two sons with her. One day his wife was sitting and washing her hair when a neighbor came and knocked at the door. Thinking to himself that it would not be polite to announce that his wife was washing herself, he said, “She is not here.” As punishment for this lie his two sons died. Then people of that town came to him and questioned him, “What is the cause of this?” So he admitted to them what had happened. They said to him. “Please leave this town, and do not incite Death against us.” (Sanhedrin 97a) [b] Rabbi Shlomo Zalman Auerbach (Israel 1910-1995) asked if this story has to apply in real life. He argues that since this lie avoids a strained relationship it is permissible as part of the principle of Darkhei Shalom (fostering goodwill and harmony). (Titan Emet l’Yaakov 5.24) [c] There are, however, limits on this kind of permissible lie. In the Shulhan Arukh we are told, “A person is forbidden to act in a smooth-tongue and luring manner. One should not speak one thing outwardly and think otherwise in the heart. Rather one’s inner self should be like the self one shows the world. What one feels in the heart should be the same as the words on one’s lips” (De’ot 2.6).

While lying is a bad idea, and cutting off communication is not generally a good thing, people are allowed to find the space they need and polite lies are acceptable in some contexts.

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[43] What’s in a Store?

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small town was having a special election. A huge superstore wanted permission to build a store on the edge of town by the highway. It would bring in a large selection of very inexpensive goods to buy. The merchants who had for many years had stores on Main Street objected.

They say that this new store will put them out of business because they would not be able to compete with the prices. They talked about all the service they had given the town, some of the stores for almost 80 years. Dave didn’t know which way to vote. He went to his rabbi and asked, “Does Judaism help with this decision?”

YOU BE THE RABBI:

Give Dave some advice.

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The Answer to “What’s in a Store?”

Can the store owners on main street stop a superstore from coming in and hurting their business? [a] There is a concept of Jewish Law called Hasagat G’vul (not infringing on the boundaries of another person’s business) While Judaism generally believes in free enterprise, it does have limits. [b] The definitional case is found in Bava Metzia 21a: “Other fishermen’s nets must be kept away from the hiding spot of a fish that has already been spotted by another fisherman. They must be kept as far away as the distance that a fish normally swims, just under three miles.” Even though the fish are not yet in the net, they are essentially “already caught.” By fishing in the first fisherman’s “zone” you are essentially stealing the fish he is certain to catch. [c] This Talmudic case makes it clear that business in a closed environment, like a dead-end alley, can block another business from coming in, but that business that are open to the whole community (like in a shopping mall) cannot. The middle ground, a somewhat restricted area, has no final Talmudic decision. The rabbis say, “Tekku”—we are not sure. [d] However, later voices reason in an interesting way. Rabbi Eliezer ben Yoel ha-Levi who wrote a lost book called the Aviasaf that was quoted in a Talmudic commentary called Mordechai, assembled by Rabbi Mordechai ben Hillel (1240-1298) argues: “If a person has a store at the end of a dead-end alley and another person wants to come along and open a store near to the mouth of that alley, it seems to me that original store owner can block the new store.”

(Mordechai, Sheheinim 6)” [e] This case sets the precedent. Rabbi Meir of Padua edited a corrected version of Maimonides Mishneh Torah and published it in partnership with Aloizi Brogodin of Venice. Marcos Antonio, another publisher from Venice, put out his own competitive edition of the Mishneh Torah and sold it at a cheaper price. (Rama, Responsa 10) The Rama uses the principle of Yored l’Tokh Umanato Shel Havero to rule: “Because Rabbi Meir would lose his entire investment in his edition, especially because Marcos Antonio was selling his at a bargain price, the idea of 110

hazakah, the priority of the first person in the market, applies, and the public should not buy the competitive edition.�

Later, the Hatam Sofer revisited this case and created the distinction we have looked at between the original owner experiencing a loss and the original owner being put out of business. He echoes the conclusion, that the new edition should be boycotted. [f] In this case, the environment of a town is probably too open to be considered “a courtyard.� So while there is a debt to the original store owners, they cannot be protected under Jewish law.

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[44] The Ethics of Robin Hood

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his case came out of a dinner conversation.

The Sheriff of Nottingham sends his men to collect taxes from a Jewish town. They collect an unfair and excessive amount of money. Robin Hood and his band of merry men (and women) stop the soldiers on the way, steal the tax money from them, then bring it back to the town to be returned to the poor Jewish citizens.

They ask their rabbi if they can accept it.

YOU BE THE JUDGE:

Is it ethical to accept back unfairly collected taxes from Robin Hood?

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The Answer to “The Ethics of Robin Hood” This questions involves two issues. (1) What is Judaism’s attitude towards unfair taxes? (2) Is one allowed to steal back stolen property? [a] In general Jews believe in paying taxes. This story makes the point. Rabbi Yaakov Kamenetsky was given a silver kiddush cup by an appreciative congregant. Rabbi Kamenetsky took this cup to a silversmith for appraisal. It was strange that a person who received a gift was preoccupied with determining its value. Rabbi Kamenetsky’s true intention was this. Rabbi Kamenetsky decided that its value was taxable income. Fear of Internal Revenue Service citations could not motivate such extraordinary dedication. (Gordon Cohn, The Ethics of Tax Evasion: A Jewish Perspective, Journal of Accounting, Ethics and Public Policy)) [b] The Halakhic perspective on paying taxes has four components. First, there are laws related to a citizen’s duty to follow his country’s statutes. This is called Dina d’Malkhuta Dina. Second, laws discuss the prohibition of lying. Third, it is forbidden for a Jewish person to do anything that could discredit the religion. This is known as Hillul ha-Shem. Finally, since it is essential for a Jewish person to perform the maximum number of mitzvot, one is required to refrain from any activity that could result in being confined in a place where he cannot properly practice Judaism. (Gordon Cohn, The Ethics of Tax Evasion: A Jewish Perspective) [c] However, there are some exceptions. If a king forces himself onto the people and the people do not accept him, there is no law of Dina d’Malkhuta Dina. Rather, Dina d’Malkhuta Dina applies only when there is a legitimate monarch or leader. (Maimonides in the Laws of Stealing, 5.8) [d] The Rama discusses another government practice. If the government decides to give a special excise tax to one group of people, the Rama says that such a tax system is considered unfair and dina d’malkhuta dina does not apply. [e] Because the Sheriff works for Prince John and Prince John stole the kingdom from King Richard, these taxes are not legitimate. Likewise, the subjective imposition of taxes without a clear tax standard—also invalidates the taxes. So people are free to resist these taxes (if they can do so safely).

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In a previous You Be the Judge case we asked, “Roger probably stole Judy’s video game. Can Judy try to steal it back?” We gave this answer: [f] In the Torah it says: You shall not steal. (Exodus 20.13) In Leviticus we find the same commandment: You shall not steal, you shall not deal falsely, and you shall not lie to one another: You shall not swear falsely by My Name, thereby desecrating the Name of your God — I am the Eternal. (Leviticus 19.11-12) [g] The rabbis wanted to know why this commandment was repeated. In the Sifra, a midrash on Leviticus, Ben Bag explains that the Leviticus version of this mitzvah means, “Do not even steal back from a thief that which s/he has stolen from you, so that you will not appear to be a thief— yourself.” Ben Bag learned this from the rest of the verse, which is about deceit. It is dealing falsely even if it is not actually stealing. [h] The Rabbis conclude that you should use the court system to reclaim stolen property. When the court system involved is the source of the theft, the ethical problem becomes more complex. [i] Our case involves taxes and not stolen money. While the taxes may be unjust, and in some ways “stolen” from the poor people in the village, they still belong to the government. In the Talmud we are told that you can even take a false oath involving taxes—something that is against Jewish Law—but you can only do so if (1) a wicked government is demanding unfair taxes, or (2) (as used to happen) the government sold the right to collect taxes to an individual who was being unfair in what was demanded. Even if taxes are high, if they are fair, they must be honestly paid.

(Nedarim 28a). [j] While we would all like to accept our taxes back from Robin Hood, doing so—except in the movies—will usually make things worse. And that is the real ethical problem here—the practical outcome. The sheriff burning down your village would not be a good thing.

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[45] Youth Group ExposĂŠ

M

att is president of the synagogue youth group.

Sandy edits the youth group newsletter. Sandy hates the way Matt is running the youth group. She thinks that he is picking all his friends for the important positions rather than choosing the best people. Sandy writes a nasty editorial criticizing Matt for the way he is doing his job. Matt goes to the rabbi and says that the newsletter should not be sent out because it is un-Jewish to embarrass a person. Sandy says that social criticism is a Jewish way of life.

YOU BE THE JUDGE: What should the rabbi do?

115

The Answer to “Youth Group Exposé” [a] It is a mitzvah to resolve arguments in a peaceful way. It is wrong to let little arguments grow into major disputes. Rashi explains that a river that overflows its bank starts as a small stream of water.

(Sanhedrin 7a) Newspaper articles that criticize someone can be appropriate, but not if they are designed to promote feuds or to escalate conflict. [b] It is perfectly appropriate to hold public officials to public scrutiny about the honesty of the job that they are doing. The Kohanim (priests) that collected the shekel offerings were frisked as they came to and left work. This grew into the obligation to audit all charitable organizations. (Tosefta Shekalim 2.3, Tur Y.D. 257 based on commentary of the Bach). [c] ”Dishonorable leaders who shirk their responsibilities should be investigated, but those investigations should not be made public in order to prevent undue embarrassment to other involved parties.” (Responsa Maharai Weil, siman 173) [d] It is a mitzvah to tell another person when he is acting in an immoral or hurtful way. (Exodus 19.17) But this rebuke (criticism) should be done privately. (Bava Metzia 31a, Arakhim 16b).

One is allowed to do this criticism publicly only if there is no other way of stopping offensive behavior. (Rambam, Mishneh Torah, Hilkhot De’ot 6.7) 116

[e] Rabbi Ephraim Greenblatt suggested the following guidelines for public criticism in a newspaper. These are drawn from the writings of the Chofetz Chaim. (1) The information must be accurate. (2) One must first confront the other person privately. (3) The offense must not be exaggerated. (4) The motivation of the article must be to help and not to hurt. (5) If there is a way of fixing the situation without making it public—then it cannot be made public. (6) One may not punish a person through a story in a way that is greater than s/he deserves. (7) The reporter must double-check his/her motives before publishing such a story. (Ohr Yehezkel, pp 357-8) [f] The rabbi’s best solution would be to solve this case without publication of the article, but if negotiations are not possible, then as a last resort the article may be published.

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[46] Free Medical Care

T

here is a community with many poor Jews, many of whom are immigrants from the F.S.U. This community of immigrants does not have medical insurance. Most of the doctors in our community will not treat patients who do not have adequate coverage. Jewish Family Service has gotten some doctors to make some provisions.

YOU BE THE JUDGE: Based on our tradition, should every Jewish doctor be treating these patients whether or not they have adequate insurance?

118

The Answer to “Free Medical Care” Can doctors be forced to treat patients who cannot pay. This question was originally asked by Rabbi Melanie Aron and answered by the Law Committee of the CCAR. [a] There is a basic rabbinic understanding that God is the source of both every illness and every act of healing. (Sanhedrin 101a) [b] Doing what one can to help another person heal from a disease or an injury is a mitzvah. Being a physician is an extension of this. (Tur and SA, YD 336.1) We are taught that a doctor who refuses to treat a person because he is poor is deserving of eternal punishment. (Rashi on M. Kid.4.14) While a doctor may try hard to be paid for his/her services, he or she cannot back away from the Torah obligation to heal. (Sefer Assaya vol 3) [c] However, a Jew cannot be treated like a slave, because he is God’s servant. (Lev.25.55) This means that a Jewish doctor cannot be forced to work against her/his will—or to quit working if s/he desires. (Yad, Hilkhot Mehirah 14.9) [d] So the legal problem is this. The doctor has a legal obligation for Pikuah Nefesh (saving a human life) but also has the right to earn a living (and not be treated like a slave). Healing is a community obligation, and the cost for medical care for all needs to be borne by all and not just by the doctor. (Rabbi Eliezer Waldenberg, Responsa Tzitz Eliezer v. 5) Rabbi Shlomo Goren allows doctors to go on strike. (Sefer Assaya v.5) [e] When a society has an obligation perform a mitzvah, then the cost of that mitzvah should be shared reasonably by all. While on a specific case-by-case basis, a doctor can be “forced” to provide medical care to insure health, on an ongoing basis, funds must be raised to compensate doctors for the care they provide for new immigrants.

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[47] Glass Action

I

n Southern California (and perhaps other parts of the United States) thieves are now breaking in to optometrist offices and stealing expensive glass frames, especially designer sunglasses. You are at a swap meet and see someone selling expensive designer sunglasses at a very reduced price. As best you can tell, these are either (a) the real thing, or (b) exact replicas, not “near” copies. There is no “Calvin Kline” here.

YOU BE THE JUDGE: Is it ethical for a person to take advantage of the deal and by good sunglasses really cheap?

120

The Answer to “Glass Action” Is it okay to purchase designer eyeglasses when the price is too good to believe (at a swap meet)? [a] It is highly likely that actual designer frames sold at a swap meet are either (a) counterfeit, (b) out of date, (c) stolen, (d) or dramatically reflecting the difference in overhead. If you know something about the actual cost of the sunglasses, you can have a reasonable understanding of the “legality” of the sale. This year’s model, sold at a swap meet, especially in California, is like to be stolen or counterfeit. [b] The Rivash in his Teshuvot (Ch. 108) says that the prohibition to assist a thief applies even if the buyer is uncertain that the object was stolen, but there are indications that it was possibly stolen. For example, if the price is very low for no apparent reason, there is no warranty, or the seller clearly wants to get rid of the item as quickly as possible. (Taz to Hoshen Mishpat 356:1) [c] It is forbidden to assist a thief in any way, whether in the actual act of stealing, transporting the stolen item, or helping to dispose of it. (Of course, it is permitted to help him transport it to return it to the original owner.) Therefore, it is forbidden to purchase an item that is known to be stolen, or even an item that was probably stolen. [d] It is stated that it is forbidden to purchase a stolen article from a thief in Bava Kama 118b-119a, Kiddushin 56b, and that is quoted by the Rambam in Hilkhot G’neivah (5:1-3) and in the Shulhan Arukh, Hoshen Mishpat (356:1). The explanation given is that anyone who assists a thief is strengthening the hand of sinners, and is encouraging the thief to continue to steal. [e] However if an item has already been purchased at one of the above-mentioned places, the probability is that the original owner has given up hope of ever seeing it again. Therefore, the sale is effective and the article belongs to the buyer. [f] In the Shulhan Arukh, Hoshen Mishpat (353:3), it says that if someone were to buy a stolen object from the thief after the owner has given up hope of ever receiving it again, the buyer acquires the object Halakhically. This is because we have a combination of the original owner giving up hope and the buyer transferring the object into his domain.

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Based on an essay at http://torah.org/advanced/business-halacha/5757/.

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[48] Torah for Everyone

A

synagogue is having a hard time financially. Teachers have not gotten a raise in three years, and all the extra-money possible has been cut from the school budget. Now, the school has been asked to provide a class for three students with special needs who need a very small class and a specially-trained teacher.

This one class will cost twice as much as a regular class with fifteen students. Some board members argue that the synagogue must come up with the extra money to provide for these three students. Others argue that these “special� costs are beyond what the synagogue can afford.

YOU BE THE JUDGE:

Does the synagogue have to find the money for this special class?

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The Answer to “Torah for Everyone” [a] The Talmud makes it clear that every parent is required to provide as much education as a child can absorb. Sukkah 42a says: “A child who knows how to shake the lulav is obligated with regards to the lulav, a child who knows how to dress is obligated to wear tzit-tzit, a child who can watch over tefillin must learn how to put on tefillin, a child who can speak, his/her parents much teach him/her Torah and how to say the Shema.”

[2] Likewise the Tosafot to the Talmud, Bava Batra 21a, makes it clear that a community’s obligation to provide education stops at providing one teacher for every twenty-five students. Smaller classes are not the community’s obligation.

[3] Rabbi Moshe Feinstein points out two things: (a) The needs of special needs children may be beyond the obligations of a community, and could require extra fees from the parents. (b) The funds needed for such special education can and should come from charitable contributions raised specifically for this purpose.

[4] The synagogue that needs to provide extra education for students with special needs (a) may charge extra fees for that purpose and (b) should raise extra funds (separate from normal dues) to cover this mitzvah.

This answer is drawn from an article by Rabbi J. David Bleich, “Torah Education of the Mentally Retarded” in the Journal of Halacha and Contemporary Society, Fall 1982.

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[49] The Sotheby’s Case

D

r. Alexander Guttman was a student at the Hochshule, a rabbinical school in Germany. A few months after Kristallnacht, he received a miracle, a visa to leave Germany and go to the United States.

He then met with Dr. Heinrich Veit Simon, chairman of the Hochshule. He was given a large number of rare books and manuscripts from the school library to smuggle out of Germany. Dr. Guttman said, “Because of the enormous risk, such books or manuscripts that I did remove and thereby save from the Nazis would belong to me.” In 1984, these books were sold at auction at Sotheby’s, a famous auction house. Many Jews protested the sale, claiming that Dr. Guttman had no right to sell them because they were not his property. The Hochschule no longer exists.

YOU BE THE JUDGE:

Should the money go to him or to Jewish Restitution Successor Organization, a group that deals with restoration of Jewish property in Germany?

125

The Answer to “The Sotheby’s Case” The answer to this question is complicated. [a] If an object is movable, it is assumed to belong to the person who has control of it. It is his or hers unless there is proof that it belongs to someone else. If there is a doubt, the person controlling can take an oath to prove ownership. (Rambam, Hilkhot Toen V’Nitan 8.1) Based on this understanding, Dr. Guttman’s claim seems solid. [b] There is a second law, Zuto Shel Yam, that also seems to support his view. This teaches that anything recovered after a flood (even if it has distinguishing marks) does not need to be returned. It is assumed that after a flood, the owner has given up hope of retrieving it. (Bava Metzia 21a ff.) The Holocaust can easily be understood as a flood, and any Judaica that survived is miraculous. [c] However, there is a notion that holy books belong to the Jewish people. In a responsum, Ri Migash teaches that after a person with the king’s permission stole holy books from one person’s house, that person was always entitled to their return; this would not be true of other objects. (Shita Mekubetzet, BM 24b.) In such a case, the Ramo argues, the return of these books is not necessary, but is “good and just.” (K’tzot haHoshen, Hoshen Mishpat, Siman 259) [d] In a similar case, Rav Yechiel Yaakov Weinberg argues that the “tide of the sea” concept should not apply to the Holocaust. The Nazis actually collected and stored books from Jewish libraries.

One never completely gives up hope, because one hopes that evil will be defeated. (Sidrei Esh, vol III) [e] In an article in the Journal of Halakhah and Contemporary Society, Number IX, Spring 1985, Rabbi Simcha Krauss writes, “There are no ‘owners’ to whom the book should be returned. In this case I believe… that Dr. Guttman has a right to them.”

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[50] Storm Damage

J

on was cross-country skiing when a storm hit. Sarah found him and broke into an unoccupied cabin to keep him alive. She could have reached safety on her own. They wait for three days until the storm abates and he may safely leave. During that time they consume the food stocks and breaks up furniture, burning it in the fireplace to keep warm. Gila owns the cabin and wants Sarah to pay for the damages. She argues that she was doing a mitzvah, saving Jon’s life.

YOU BE THE JUDGE:

Does

Sarah have to pay?

127

The Answer to “Storm Damage” [a] Leviticus 18.5: “You shall observe my decrees and my laws that each person shall carry out and by which each person shall live, I am God.” This verse teaches us that the commandments were not meant to take precedence over human life. If the observance of a Torah law creates a risk, then preservation of that life should take precedence over the Torah law. [b] The Talmud on Sanhedrin 74a rules on the basis of this verse that if someone is offered the ultimatum to violate one of the prohibitions in the Torah or be killed, that person has the duty to violate that law and save his life. This rule applies to all the prohibitions in the Torah with three exceptions. The three exceptions are the prohibitions of idol worship, illicit sexual relations and murder. [c] The same Gemara in Sanhedrin describes a case where a person being pursued destroys the property of another in effort to save his own life. Rava rules that if the property belongs to the pursuer, then the pursued is exempt from paying the damage. However, if the person being pursued destroys the property belonging to a third party, the person fleeing is liable for the damage. This Gemara teaches that it is permissible to destroy another’s property to save your own life, provided that you compensate the owner of the property. [d] An American case said the same thing. In Vincent v. Lake Erie Transportation Co., the Supreme Court of Minnesota in 1910 ruled “theologians hold that a starving man, without moral guilt, take what is necessary to sustain life; but it could hardly be said that the obligations would not be upon such a person to pay the value of the property so taken when he became able to do so. And so public necessity may require the taking of private property for public purposes; but under our system of jurisprudence compensation must be made.” [e] Saving the life of another Jew takes precedence over any monetary interest. The Torah commands, “You shall not stand idly by the blood of your neighbor” (Leviticus 19:16).

This verse obligates all Jews to be Good Samaritans by commanding them to rescue another in distress. This obligation is so fundamental that a person must go to any extent necessary 128

in order to save the life of another (Rashi, Sanhedrin 73a). Refusing to do so is considered a transgression. (Rambam, Hilkhot Rotzeah U’Shmirat Nefesh 1.14) [f] The Rabbis enacted a law exempting the rescuer from punishment resulting from any damages committed in the course of the rescue. The basic law of damages in halakhah is that a person is always forewarned and hence liable for damages whether s/he acts inadvertently or willfully, under coercion or voluntarily. (Sanhedrin 72a; Rambam, Hilkhot Hovel u’Mazik 1:12; 6:1.) The exception is for a rescuer, for a rescuer is exempt from the damages s/he causes during his attempted rescue. According to the Rambam, if one chases after the pursuer in order to rescue the pursued, and breaks objects belonging to the pursuer or to anyone else, s/he is exempt.

(Rambam, Hilkhot Hovel u’Mazik 8.12) [g] The Rambam explains that this rule does not conform with the usual biblical law but is a special enactment by the rabbis in order to prevent people from refraining to save others or being too careful during their rescue for fear of having to compensate for any damages done. In Bava Kamma 117b. Rabbah states that although this rule seems to be violating the usually strict tort law, one can justify this leniency for the public interest, for if this rule did not exist, no one would go out of the way to rescue another from the hands of the pursuer. [h] In our case, Sarah is a rescuer, saving Jon from the pursuing disease. She is exempt from paying any damages.

This case was drawn from: Charles J. Harary, Esq. “Stealing To Save Someone’s Life,” http://www.jlaw.com/Articles/ch_stealsavelife.html

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[51] The Snoop

S

usie wants to be a writer. She studies people in order to learn about the way they act. One of her favorite things is to sit in a restaurant and study people at other tables to guess what they are talking about and to guess about their situation. She tries to figure out who are brother and sister? Who are boyfriend and girlfriend? Who are having an argument? And what it is about?

Susie’s other favorite thing is to search people’s trash. She thinks she is like an archeologist—uncovering their lives from evidence. Some of the best things she finds are old letters and old postcards. She collects and reads the stories of other people’s lives in order to have stories to write about. He mother objects to what Susie is doing. Her mother calls it snooping and violating privacy. Susie calls it research.

YOU BE THE JUDGE:

Should Susie continue collecting letters and postcards from the trash?

130

The Answer to “The Snoop” Privacy is a really big Jewish value. We have already learned about hezek re’yah, the invasion of privacy.

Here are some additional examples: [a] The Torah says, “When you make a loan of any kind to your countryman, you must not enter his house to take his pledge. You must wait outside while the man to whom you made the loan brings the pledge out to you.” [Deuteronomy 25.10-11] [b] ”No one can build a house with a window looking into an existing window in a neighbor’s house.” [Bava Batra 3:7] [c] Disclosing confidential information is also against Jewish law. “A crude person gives away secrets but a trustworthy person keeps secrets.” [Proverbs 11.13] When one person tells a secret to another, it should not be told to a third person unless the person who told the secret gives permission. [Yoma 4b] [d] You are not allowed to search out another person’s secrets. [Jacob Hagiz, Responsa. Halakhot Ketannot 1, #276] One cannot read another person’s mail [Rabbi Gershom Ba’al ha-Nesh] especially to steal trade secrets—but one may do so to save a life or prevent injury to business or property. [Hayyim Palache, Resp. Hilkhei Levi 1, YD #49, Rema to Shulhan Arukh. YD 228:33] With all this as guidance, it is clear that “archeology” in someone else’s garbage is forbidden, listening to someone else’s private conversation is forbidden, watching them in a restaurant is probably allowed—but not if you watch too much.

The Torah wants us to respect each other’s privacy—even where art is concerned.

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[52] Jesus’ Kiddush Cup

S

ally runs the Judaica shop in her synagogue.

One Sunday morning some strangers come into the synagogue and ask to look at Kiddush cups. Sally asks them a few questions, and while she is showing them the cups, she gets a strong feeling that they belong to Kehilat Mashiah, the Messianic synagogue (Jews for Jesus). She sold them the Kiddush cup, but then asks the rabbi if she had done the right thing.

YOU BE THE JUDGE: Should a synagogue gift shop sell ritual objects to Jews for Jesus?

132

The Answer to “Jesus’ Kiddush Cup” This case is drawn from Teshuvot for the Nineties, Reform Judaism’s Answers for Today’s Dilemmas, W. Gunther Plaut and Mark Washofsky. [a] Messianic Jews, Jews for Jesus, are not really a branch of Judaism, but rather a branch of Christianity. One of their prime missions is converting Jews to the belief that Jesus is God’s son and must be accepted. Dealing with a Jew for Jesus is not the same as dealing with a Christian, it is dealing with someone who is pretending to be a Jew and trying to convince Jews that belief in Jesus is a viable Jewish form. [b] ”Messianic Judaism” is based upon deception. It promotes the false impression that Christianity is a legitimate form of Judaism. It preaches that a Jew who adopts that religion does not abandon Judaism but rather becomes a “fulfilled” or “completed” Jew through the acceptance of Jesus as the Messiah and personal savior. These congregations conduct their worship services in something of a Jewish style; celebrate the Jewish holy days; and call their spiritual leaders “rabbis.” Such practices make the “Messianic” religion “look Jewish,” thereby blurring the very real distinction between Judaism and Christianity. (CCAR Responsa 5761.2) [c] The Torah teaches that “one should not put a stumbling block before the blind” (Lev. 19.14).

This is interpreted as (a) not helping a person do something wrong and (b) especially not playing on someone’s weakness. In selling a Kiddush cup to a Messianic Jew is it possible that you are (a) helping him/her to trick Jews into leaving Judaism, and (b) helping to fool Jews into making a bad choice. [d] The Talmud, Gittin 61a, makes it clear that we need to be good to non-Jews for the sake of peace. Therefore, it is wrong to cause a major fuss that leads to communal unrest. [e] A Messianic Jew is still considered a Jew under Jewish law and enabling him or her to “repent” and return to true Judaism is a mitzvah.

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[f] Given all this, the CCAR recommends the following: (a) It is okay to politely check out customers to find out the use to which they will put Judaica. (b) It is better not to sell Judaica to people who will use it in wrong ways. (A tallit should not become a table cloth, etc). (c) If a store is open to the public, it is hard to discriminate against a given customer, so if you are unsuccessful at dissuading a sale, you may not be able to refuse it.

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[53] Photo Finish

P

hilip and Bentley spend much of Hebrew school sending each other images on their new cell phones with cameras. Mrs. Katz warns them a couple of times and then confiscates the cameras, putting them in her desk drawer. When everyone goes out to recess she shuts the classroom door as she usually does, and goes out to recess, leaving her own purse behind. At the end of the day the cell phones are missing. The parents claim that the teacher had no right to confiscate them and was responsible for paying for them. Mrs. Katz says she had the right to take away distractions and that the cell phones were protected as well as her own wallet.

YOU BE THE JUDGE:

Did Mrs. Katz act appropriately, and

does she have to pay?

135

The Answer to “Photo Finish” [a] The Talmud (Makkot 8b) gives the teacher a lot of freedom to “control” classes. The Talmud allows things we might not allow like corporal punishment or making students pay fines.

Confiscation is clearly a right. [b] Teachers become unpaid guardians for thing they confiscate from their students. The teacher is not allowed to use them and not allowed to destroy them if they have a value. (Pitkhei T’shuvah Y.D. 245.4) [c] An unpaid guardian is not responsible to pay for loss or damage unless s/he made personal use of an object or unless s/he was negligent in protecting it. (Bava Metzia 3.1). [d] If Mrs. Katz offered reasonable protection to the phones (and she treated her own purse in a similar way), she has done nothing wrong and has no obligation. The school, however, should do everything possible to retrieve the phones.

Drawn from a website maintained by Rabbi Aaron Tendler of Yeshivas Ner Yisroel in Baltimore. http://torah.org/advanced/business-halacha/5757/

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[54] The Chofetz Chayim Crisis

T

he Chofetz Chayim was a very famous rabbi who lived at the beginning of the 20th century. He taught about becoming a good person and also ran a small store. Every day he would check his weights and measures to make sure that they were honest. Once he found that a small scoop he used to measure salt was bent and gave his customers a little less than it claimed. He checked his books and found that only one woman, a non-Jew, had bought salt since he last checked the scoop. No one knew where she lived. No one even knew her name.

YOU BE THE JUDGE:

What should a rabbinical

court tell the Chofetz Chayim to do?

137

The Answer to “The Chofetz Chayim Crisis” [a] In the days of the Torah and the Talmud people sold things with a balance. Weights were put on one side and the product was put on the other.

Three times in the Torah we are commanded to have just weights and measures. (Leviticus 19.36, 19.37, and Deuteronomy 25.14) The first demands that when we weigh things for the purpose of selling them we always do it honestly. The second extends this principle to dry and liquid measures of volume. The third is the most interesting. It says that you are not even allowed to own weights or scales that are inaccurate (lest they be used by accident). [b] The Talmud extends this and says two things: (1) God makes the punishment for using inaccurate weights and measures stiffer than the punishment for almost any sin. God also makes this sin very hard to repent because God said, “I took you out of Egypt on the condition that you would be honest in business.” (Torat ha-Kohanim) (2) One who always owns only just weights and measures will become rich. (Bava Batra 89b) [c] The Chofetz Chayim took a sack of salt and went from door to door in the non-Jewish part of the neighborhood and gave every family a bag full of salt. (Rabbi A.Y. Kahan, The Taryag Mitzvot) [d] Any time a person has taken money or an object from someone else, and it was not a lost item that the original owner had given up hope of ever getting back, whether it was taken intentionally (and he would now like to do Teshuvah, repent) or in error, he is obligated to return it to the original owner. If it is impossible to locate the original owner, he must take the money or the value of the item and use it for Tzorkhei Rabbim, community service. [e] The Gemara (Bava Kamma 94b)(Hoshen Mishpat 366:2) states that if someone has stolen money but is unable to compensate the rightful owner because he does not know from whom he has taken it, he should use the money for community needs. Rashi explains that although this is not considered a proper return of the stolen money as required by the Torah, and therefore is not the preferable method of doing so, the victim of the theft will at least partially benefit from the funds.

138

[f] This applies in any case in which money has been improperly taken, even if unintentionally. The Torah obligates the taker to return it. Therefore, when the identity of the proper owner is unknown, “community service� must be performed with this money, in such a manner that the original owner will have the utmost benefit from these funds.

139