Category Archives: Summer Beit Midrash

Week Five Summary of SBM 2017

by Steve Gotlib and Eliana Yashgur

If you firmly believe that you are mashiach, are you a shoteh? Rav Moshe Feinstein (Iggerot Moshe 1:120) deals precisely with this question. Rav Moshe was faced with this issue in 5679. The man in question believed that he was mashiach and that he was thus destined to save the Jewish people. He had an obsession with serving as shaliach tzibur and ba’al kriah and would fight with all his might to be able to be in those roles. On one occasion he stole the sefer Torah and went running with it into the street screaming about how he was going to fix the world. Lest one believe that these were his only strange behaviors, this man would also hang out in trees and walk around town without clothing, claiming that he was like Adam before the sin. However, it is important to note that in all other behaviors Mr. Mashiach was a perfectly reasonable and sane human being.

By the time that the man was ready to be married, he was working as an elementary school teacher and had not displayed any worrying behaviors for many years. The marriage went on completely without issue. Unfortunately, soon after his marriage the man reverted to publicly stating that he was mashiach and returned to going about his strange behaviors. Two years before the writing of Rav Moshe’s teshuva, the man went to his father’s house to work as a farmer. Since then, he had not displayed any of his crazy behaviors. Believing him to be completely back to normal, the man was taken to give his wife a get. All went according to plan, but on the way out of the proceedings, the man remarked to Rav Moshe that he still believed himself to be mashiach. Rav Moshe then had to determine whether or not the get that was given was a valid one, or if it was invalid due to having been given by a shoteh. After all, the second chapter of Mishna Gittin clearly lists a shoteh as one who is invalid to give a get. Perhaps the man’s get can still be considered valid since the man’s only irrational behaviors stem from his one incorrect belief that he is mashiach? This idea is hard to reconcile with the Rambam, who writes in Mishneh Torah Hilchot Eidut that one who is a shoteh for one matter is considered to be a shoteh in all matters, even if he is entirely rational when it comes to those other matters.

The question of whether or not this man is a shoteh hinges upon the gemara in Chagiga which discusses the criteria that are necessary in order to deem one to be a shoteh. Rav Huna posits that to be considered a shoteh one needs to go outside alone at night, sleep in a graveyard, and tear his clothing. In other words, if someone only performed one or two of those actions, there could easily be a logical reason for it. Rav Huna’s opinion is necessary, according to Rav Moshe, to show that a person performing all three of those actions is so unlikely to be doing them all for a logical reason that they must be assumed to be a shoteh. According to the gemara in Chagiga then, the man in question may not be considered a shoteh because all of his actions have logical reasons, stemming naturally from the one false belief that he is mashiach.

The issue with this reading of the gemara is that the Rambam states in Hilchot Eidut that a shoteh in one matter is considered to be a shoteh in all matters. The Rambam clearly states that such a person is invalid as a witness and, on top of that, that they do not have a chiyuv in any mitzvot! Rav Moshe interprets the Rambam as saying that the Torah does not give people only a partial chiyuv in mitzvot. Either a person is subject to all mitzvot or they are not subject to mitzvot at all. It is this lack of obligation that disqualifies their testimony. Interestingly, Rav Moshe moves on to say that this overwhelming disqualification is ONLY with regard to testimony and obligation in mitzvot. In all other areas of Halacha, Rav Moshe claims that even the Rambam would agree that one irrational belief (and the actions which stem from it) would not make one a shoteh in regards to all of the matters which they have rationality with. Therefore the man who believed that he was mashiach would be able to give his wife a get without issue even if he is a shoteh.

We then moved on to the path towards helping a shoteh recover from their illness through the words of Rav Yitzchok Zilbershtein, who discussed whether one is permitted to violate Shabbat in order to heal a shoteh resulting in him or her then being in a position where he or she is chayav in mitzvot. For this, Rav Zilbershtein laid out three potential possibilities.

  1. It is completely permitted to heal a Shoteh on Shabbat. This position was brought down from the Beit Meir, who stated that the reason that one can violate Shabbat to save any life is the principle of violating one Shabbat so that the person saved can keep more Shabbatot. The person, being healed from being a shoteh, would then be in a position to keep Shabbat in a way that they would have been unable to before when they were not chayav in mitzvot.
  2. It would not be permitted to heal a shoteh on Shabbat at all. This is supported by the Biur Halacha since the mental condition of the shoteh is not enough to be considered a physical danger and allow the permission to save a life on Shabbat to take affect.
  3. It is permitted to heal a shoteh on Shabbat, but only when there is absolutely no doubt that the shoteh will actually be healed. This approach is based on the Netziv in Ha’amek Sh’elah, who argues that the principle of violating one Shabbat to allow others to be observed is a second justification for violating Shabbat to save life but applies only when the outcome is definite.  This principle allows violating Shabbat even when no life is in danger, only the capacity to be chayav in mitzvot.  Ordinary life-saving is justified by the verse “and they shall live by them”; it requires physical danger but applies even when there is only a possibility of death.

We also noted a halakhic irony: it seems that the more valuable the shoteh is before being healed, the more difficult it is to permit healing him or her if that healing involves violating Shabbat.  Some of us thought this was perfectly reasonable while some of us thought it was counterintuitive. We also disagreed as to whether and to what extent our intuitions were relevant to the process of deciding the Halachah.  This conversation was an excellent preparation for writing our teshuvot next week.

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Week Four Summary of SBM 2017

by Avraham Fast and Davida Kollmar

Who is a shoteh, and what is his or her level in chiyyuv mitzvot? What is the religious or halakhic value of Mitzvot performed by an eino metzuveh ve’oseh, someone who is not commanded but does the Mitzvah anyway?

We began with a responsum by the Chatam Sofer (Chelek 1 Orach Chaim Siman 83). His case is of a boy who can speak but does not understand what he is saying, and in general seems to have weak daat. Doctors suggest that he be sent to a school where he will learn enough to be a functional member of society, but would have to eat non-kosher food. Feeding a minor non-kosher food is generally prohibited. Does sending the boy to a non-kosher institution violate this issur, and if so, is the acquisition of daat worth the violation? The questioner argued that it should be allowed, because transforming the boy from a shoteh to one chayyav in mitzvot is a sufficiently important purpose.

The Chatam Sofer says that if the boy is a shoteh and is patur from mitzvot, then he could go to the school, so that in the future he would be able to keep many mitzvot. He initially compares the case to someone stuck in the desert who has lost track of which day is Shabbat. Such a person must observe Shabbat in full every seventh day, and for the other six can only do melakhah to the extent necessary for parnassah. Nonetheless, he may travel as far as possible each day, despite the techum Shabbat, in order to return to civilization and to keeping Shabbat in full on the correct day. However, he concludes that the cases are different because the child is patur min hashamayim so there may not be a halakhic incentive to make him chayyav.

Chatam Sofer qualifies his heter, by saying that if someone was not quite a shoteh and was still obligated in mitzvot, it would be better not to send him to the school rather than to make him a wicked person. His final halakhic statement is that the boy should leave the school once he turns thirteen, presumably because he believed the child would in fact become chayav then. He adds that although it’s technically allowed to send the boy to the school until bar mitzvah, it is better not to send him, because of the negative metaphysical impact that eating non-kosher will have on the boy, even if this means he will remain a near- or quasi-shoteh.

Rav Moshe Feinstein (Orach Chaim Chelek 2 Siman 88) builds on the argument of the Chatam Sofer. In his case, a girl is a shotah and her father’s health is failing because of the stress of caring for her. Rav Moshe argues that it is even clearer to have a heter in her case, because she is a complete shotah, and the Chatam Sofer’s reservations only apply to someone who is barely a shoteh. Additionally, because this girl is a complete shotah, there is no need to remove her from the institution once she physically matures. He also contends that the metaphysical argument does not apply, because she will never become mechuyyevet in mitzvot. The danger to the father is another reason to be lenient.

We then discussed the value of mitzvot done by a person who is not obligated. Maharam Schick (Orach Chaim Siman 269) discussed the question of whether a boy who becomes bar mitzvah during the days of sefirat ha’omer can count with a brachah. He initially states that a mitzvah done before one is obligated cannot exempt one from an obligation that takes effect later. This is because an action done by an obligated person is greater than that done by someone who is not obligated. An action done as a minor, therefore, cannot fulfill the obligation of the same person when he becomes an adult. However, Maharam Schick continues that since a katan is a bar daat, but just isn’t commanded until he’s older, his actions still count as a mitzvah to the extent that he gets reward like an eino metzuveh, rather than having his actions not count for anything. Therefore his actions have enough meaning to consider his counting “complete”, and he can make the brakhah.

We then discussed a case in the Israeli Rabbinic Court (Chelek 10 p 193) of a deaf-mute woman who wanted to convert. Rav Zimbalist argues that she cannot convert – she is categorically considered to not have daat, so she cannot fulfil the condition of accepting the mitzvot. This is unlike the conversion of a child, which works because the child will be able to accept mitzvot once he/she grows older. This is also different from converting a shoteh slave, who only requires a lack of protest. Rav Daichovski disagrees and thinks that either this woman has daat, in which case she can accept mitzvot, or else she does not have daat, in which case she is the perfect convert, since she can never sin!  The acceptance of mitzvot is not necessary for her to convert if she will never become chayyevet. A central point in the judges’ disagreement is whether there is value in conversion for someone who will be patur from all mitzvot. The final decision of the court follows Rav Zimbalist.

We then looked at Rav Shternbuch (Teshuvot VeHanhagot Volume 4 Siman 233) who discusses the conversion of a blind person. He states that a person with daat who is patur from mitzvot is still obligated in emunah. An acceptance of the obligation of emunah is enough for the conversion of such a person.

The Lehorot Natan (Chelek 1 Siman 25) analyzes the position of Maharam Schick. He makes a distinction between a katan and a shoteh: mitzvah acts have significance for a katan, but not for a shoteh. However, the Lehorot Natan does not give a rationale, so we don’t know how narrowly we can apply this rule and how easily we can make exceptions. He also quotes the Eglei Tal, who says that while the machshava of a katan does not take halakhic effect in regards to others, it does so in regard to the katan himself.

In another Teshuvah (Yoreh Deah Chelek 2 Siman 8), Rav Moshe Feinstein states that there are two possibilities for understanding the obligation for a katan:

  1. He is in the category of those who have accepted the Torah, but his chiyyuv won’t kick in until he becomes an adult. So he’s an eino metzuveh.
  2. He is not in the category of chiyyuv at all, but by doing an action he shows that he’s a ben daat for this action, and therefore he gets reward like a mitzuveh. A katan is technically chayyav, but he’s patur because he’s an anoos. What comes out of Rav Moshe is that he assumes Hashem gives reward to ketanim. Would the same apply to shotim?

In an article (Kovez Torani Im HaTorah 2nd Edition Volume 2), Rav Moshe writes about children who are peta’im. He says that as long as they have daat like responsible children, there’s a responsibility to educate them, although he opposes spending communal money on them disproportionately; such monies should be raised from private contributions. His opinion was likely progressive at the time. He argues that there’s a category of children who have a level of daat such that they have a chiyyuv but are anoos for all mitzvot. Therefore their parents should try to prevent them from doing aveirot, but they themselves are not responsible.

We concluded the week by reading the responsum on “A Community Bar Mitzvah Celebration for a Child with Cognitive Disabilities” produced by the Israeli organization Beit Hillel. It is interesting to note that this Responsum was co-authored by male and female Torah scholars.

The authors write that the climax of the Bar Mitzvah ceremony is when the boy is called up to the Torah, an act that symbolizes entry into adulthood. From then on, he also participates in communal prayer and becomes responsible for passing the Torah’s teachings on to a new generation. The questions are whether a mentally handicapped boy can go through this same teaching process and whether his family feels that the 13 years of education he received bore fruit as he becomes an adult member of the community. The document uses halakhah and the spirit of the halakhah to try to respond to these questions.

The first step is to adopt a fundamental approach that states these boys have the right to celebrate their Bar Mitzvahs in our communities as part of us. When the boy’s condition does not allow him to celebrate his Bar Mitzvah like other boys, a customized and meaningful solution must be found for him. There is no obligation to have the ceremony when the boy is exactly 13 years old.

Spiritual leadership should stress the important Torah value that every human being was created in God’s image. The active and positive participation of a spiritual leader in the integration of an individual with mental disabilities may determine the boy’s religious future and his connection to Jewish tradition and practices.

To keep the Torah commandments, one must have daat. This excludes the katan and the shoteh. According to the poskim, a shoteh is an adult who suffers from a mental illness that clouds his cognitive functions. A person with a mental-developmental disorder may be a shoteh or a peti (simple-minded). Is a peti or a shoteh required to keep the mitzvot? Rambam and the Chatam Sofer say boys should be assessed on a case per case basis.

The authors conclude by quoting an inspirational passage from Isaiah:

Strengthen weak hands, and make firm tottering knees … Then the eyes of the blind shall be opened, and the ears of the deaf shall be unstopped.

It is unfortunate, however, that the passage does not mention the shoteh, peti or the person with cognitive disabilities.

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Week Two Summary of SBM 2017

by Joshua Blau and Avi Hirsch

The category “shoteh” can be used to cover all beings whose bodies are halakhically human and Jewish but who are halakhically limited because of mental illness, disability, or deficiency.  We set out this week to refine this halakhic category by analyzing the term’s appearances in the Tosefta, Talmud Yerushalmi, and Talmud Bavli. The resultant taxonomy shows that the category of shoteh applies differently to various classes of halakhic actions with diverse results.

We identified four classes of halakhic requirements relating to the shoteh. Note that in most circumstances halakhah puts the shoteh, the katan (halakhic minor), and the cheresh (deaf-mute, whom most Rabbis regarded as presumptively lacking full mental capacity) in the same legal basket. These four classes are:

  1. Actions that he/she can perform simply because his/her body is deemed halakhically human and/or Jewish
  2. Actions regarding which a shoteh can be granted independent halakhic credibility
  3. Actions regarding which a shoteh can be granted halakhic credibility if performed under the surveillance of a fully competent person
  4. Actions from which a shoteh is entirely excluded.

An example of a halakhic action that seems to only require having a Jewish body and thus can be performed by a shoteh (Tosefta Yevamot Chapter 11) is yibum (levirate marriage). It is clear from the mechanics of yibum that no mental capacity is necessary for the fulfillment of this mitzvah. This contrasts with kiddushin (betrothal), which indeed requires da’at (intellectual capability) and thus cannot be performed by anyone who lacks this quality. This example raises the moral question of how halakhah conceives of and structures the ideal sexual life of a shoteh, given their effective inability to marry outside of the context of yibum.

An example of a different class of actions that can be accomplished by a member of one of the categories of disability is the supervision of the processing of taharot (ritually pure items) by charashim (deaf-mutes). The opening chapter of Tosefta Terumot cites the case of the cheresh children of R’ Yochanan ben Gudgeda, who were charged with the preparation of all of the taharot in Yerushalayim. Although it is unclear what may be extrapolated from this case due to the possibly exceptional status of these particular charashim, it remains evident that there are some circumstances in which a cheresh may be halakhically trusted with responsibility. Might there be shotim who could be similarly entrusted?

Another class of halakhic actions consists of those actions whose mechanistic performance by all three of the cheresh, shoteh, and katan is allowed under supervision. These include shechitah (kosher slaughter) and the sanctification and sprinkling of the ashes of the parah adumah (red heifer). This category of action requires only oversight, and it is unclear how much, if any, da’at the slaughterer needs. However, the fact that we trust those lacking in da’at to perform certain actions (if only under supervision) shows that these people do have some degree of responsibility and trustworthiness.

Classification of actions into the final category can be quite difficult. For example, how are we to determine what level of da’at certain actions require, as well as how much da’at we can attribute to someone in the three “disabled” categories? Additionally, should we exclude such a person from all halakhic categories in which they are not explicitly included, or include them in those from which they aren’t explicitly excluded?

For example, Tosefta Terumot cited by the Yerushalmi records a dispute between R’ Yehudah and the Chakhamim as to whether we can extrapolate from the case of preparing taharot to that of separating terumah. Rabbi Yehudah draws the analogy, invoking the aforementioned case of the cheresh children of R’ Yochanan ben Gudgeda, but the Chakhamim reject it. The key issue appears to be that separating terumah, as opposed to preparing taharot, involves not merely carrying out directions that are relevant to the halakhic status of an object, but imposing that status on the object. R’ Yehudah may hold that a cheresh is just like a pikei’ach (halakhically capable Jew), and therefore capable of establishing halakhic statuses. Alternatively, R’ Yehudah might require less da’at to designate terumah than do the Chakhamim. He makes the same argument regarding a katan, but not for a shoteh.

The Yerushalmi in Chagigah specifies re’iyah (pilgrimage) as an example of a mitzvah that requires a type of da’at that the cheresh, shoteh, and katan lack. The da’at necessary in this case may be exclusive not due to its degree, but rather its type. This mitzvah, associated with the Shalosh Regalim (Three Festivals), is intended to gather everyone in Israel to Yerushalayim. In other words, the mitzvah is meant to achieve a communal effect. Thus, perhaps a special da’at is needed to that end. Conversely, perhaps mere presence is sufficient in this case. (Note that this differs from the mitzvah of tefilah with a minyan (praying with a quorum), as that is an obligation to ensure that there is a communal event, rather than to ensure that everyone from the community is present at the event.)

This Yerushalmi also provides a definition of katan that is outgrown long before the usual age of bar mitzvah. This opens up the possibility that the categories of cheresh and shoteh may be similarly narrowed.

In addition to pondering the halakhic role of the shoteh in society, we must also consider who should be included in the label.

Tosefta Terumot records four identifying characteristics of a shoteh: going out alone at night, sleeping in graveyards, tearing one’s clothes, and losing or destroying all that one is given. The Tosefta does not specify whether these characteristics are meant to be interpreted descriptively or prescriptively, and is similarly vague about whether they are culturally dependent, or even intended as representative samples rather than as qualifying characteristics.

Yerushalmi Gittin, when discussing these characteristics in the context of halakhic divorce, prohibits those afflicted with the condition “kordaikus” (perhaps epilepsy) from giving a get (divorce contract). The Yerushalmi thus implies that our previous definition of shoteh is insufficient, since one who has this illness would be considered a shoteh, yet does not exhibit any of the shoteh’s aforementioned characteristics.

The Yerushalmi and the Bavli both discuss a dispute regarding whether all four characteristics are necessary for one to be a shoteh, or only one of them. The Bavli’s list, however, does not include the final item of the Yerushalmi’s, namely, losing or destroying what one is given. Nonetheless, the Bavli later qualifies its list to state that this characteristic is indeed sufficient on its own, if only according to one opinion, as does the Yerushalmi (though in muddier terms).

The Tosefta in Bava Kama obligates one who hurts a shoteh in all forms of damage other than “boshet” (embarrassment). The Tosefta explains that this is because shotim lack boshet. Because of the vagueness of the term “boshet” in this context, it is unclear whether it refers to the payment for embarrassing a shoteh or to the embarrassment itself. Either way, this is the first time we have seen this quality used to describe a shoteh. How are we to understand this trait? It is possible that the description here is of one who lacks the self-awareness to be embarrassed, evoking the shoteh’s lack of da’at. Alternatively, we might be describing one who is so mortified by his/her condition as a shoteh that he/she cannot be further humiliated. The ultimate humiliation may not even come from being a shoteh, but rather from being classified as one, and thereby being denied a halakhic persona.

On a related note, the Bavli on Shabbat 13b makes use of a curious idiom: “Ein shoteh nifga,” “a shoteh cannot be harmed.” It is unclear exactly what is meant by this phrase. For example, “harm” might refer to physical or emotional pain. There are also multiple ways to understand why the shoteh’s is unable to experience said harm. On the one hand, the pain of the shoteh might be slowly dulled over time because of its magnitude. Alternatively, the shoteh might simply be unaware of external pain, either because of the intense internal pain he/she experiences as a shoteh, or simply because the shoteh lacks emotional or social consciousness. Regardless, these possibilities can again all be treated as either descriptive or prescriptive. We now have a far larger and more flexible net with which to classify the elusive shoteh.

This breakdown does not account for differences in the mental capacities of various shotim, which may affect their halakhic capabilities. Additionally, it leaves open the important question of how a shoteh relates to obligation in mitzvot, particularly those mitzvot lo ta’aseh (negative precepts) that are generally seen as morally intuitive, such as murder.

After we complete our traversal of the Bavli sources, the next step in refining the halakhic framework of a shoteh is to investigate its presence in the works of halakhic adjudicators, both old and new. Through the lenses of these revered figures, we seek both to gain an appreciation for the complexity of issues involving shotim and to better understand their perception within the world of halakhah.

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Week One Summary of SBM 2017

by Shoshana Jakobovits and Gershon Klapper

The topic of the 2017 Summer Beit Midrash is “Mental Disability in Halakhah”. We will approach this topic through the halakhic category of שוטה (shoteh). The psukim in the Torah make no mention of שוטה as a legal status, and the Tannaïtic material may not define the condition formally. We will therefore attempt to build a framework for this category via its legal implications, having started this week with the Midrash Tanaïm and the Mishnah, and continuing next week with the Tosefta, the Yerushalmi and the Bavli.

Can we find rationales for the mitzvot the שוטה is excluded from? Maybe all mitzvot which require דעת (da’at, knowledge or understanding)? Or perhaps mitzvot which have a certain communal aspect? Are there specific halakhic realms they don’t participate in, or participate in only partially (for example testimony, marriage and divorce, or perhaps נזיקין, damages)? What are the differences between the statuses of the חרש (cheireish, deaf-mute) and שוטה as recorded in pre-Helen Keller halakhic literature, and to what extent does the traditional grouping of the קטן (katan, minor) with them have legal significance? These are some of the overarching questions we explored this week.

The Mekhilta d’Rabbi Yishmael (מכילתא דרבי ישמעאל כי תשא – מסכתא דשבתא פרשה א, 31:14) discusses the חרש ,שוטה and קטן ‘s obligation regarding at least some aspects of shabbat:

“To know that I, the L-rd, sanctify you” (Sh’mot 16): What is the intent of this? From “And the children of Israel shall keep the Sabbath” (Ibid.) I might think, even a חרש (deaf-mute), a שוטה (imbecile), and a קטן (minor) [are obligated]? It is, therefore, written “to know that I, the L-rd, etc.” I spoke only of one who has דעת.

The presumption of the Mekhilta seems to be that we would think that the חרש ,שוטה and קטן are exempt from (at least some) obligations of Shabbat. This idea in mind, one could think that the words “And the children of Israel shall keep the Sabbath” come to state that in fact all B’nei Israel, חרש ,שוטה and קטן included, are obligated in these. The Mekhilta states that the function of the words “to know (לדעת) that I, the L-rd, sanctify you” are to show that חרש ,שוטה and קטן are, in fact, excluded from the obligation since they lack the appropriate דעת.

It is interesting, and perhaps even crucial to note that there is absolutely no presumption that the people belonging to the categories חרש ,שוטה or קטן might be excluded from the category בני ישראל (B’nei Israel). In other words, the Jewishness of the חרש ,שוטה and קטן, their belonging to the Jewish people is never put into question by the Mekhilta, nor by any other source from the Midrash Halakhah and the Mishnah.

What is put into question, though, is their intellectual capability, their דעת. However, the concept of דעת is quite obscure and further questions need to be addressed: what exactly does דעת entail? Are there different kinds of דעת (i.e. knowledges of different concepts) and from which mitzvot does this criteria exempt the חרש ,שוטה and קטן?

The Midrash Halakhah excludes the חרש ,שוטה and קטן on several occasions on the grounds that they are lacking דעת; this rationale appears, for example, in the Sifrei Bemidbar (Parashat Chukat, piska 124), which deals with the placing of the red heifer’s ashes in a tahor place. The חרש ,שוטה and קטן are declared pasul for this task, since they lack the דעת להניח, the knowledge to place these ashes appropriately. It is unclear from this text whether the Sifrei deems their דעת insufficient for placing, for handling precious objects, or for placing in a tahor location. In any case, this type of דעת is radically different from the type of דעת required in the Mekhilta, which is an understanding that G-d sanctifies us and a rather abstract, spiritual notion.

Furthermore, in the Tosefta (Shvu’ot, ch. 3) the word ידע (knew, Vayikra 5:1) is taken to prove that a שוטה is unfit to testify. This type of דעת, a basic knowledge of the circumstances and content of events necessary to provide testimony, constitutes yet another type of דעת.

What seems to emerge from studying Rabbinic legal interpretations of Torah is that the שוטה is excluded from specific mitzvot because of their lack of the דעת necessary to perform those mitzvot.

Let us now move to mishnaic texts, and consider a mishnah central to the rulings about חרש and שוטה: the mishnah (Rosh Hashanah ch. 2) rules that a חרש, a שוטה, and a קטן cannot fulfill the masses’ obligation to hear the shofar by blowing it for them, citing a general precept that “All that have no obligation in a matter cannot fulfill the masses’ obligation [in that matter].” This statement, as it seems to assume that the חרש, שוטה, and קטן have no obligation to hear shofar, provides a theoretically far-reaching curb to the שוטה’s involvement in mass obligations and implies a significantly handicapped obligatory framework; the קטן is already “exempt from all commandments” (Sanhedrin ch. 8) and the חרש is presumably exempt from shofar as he is from other obligations that explicitly require hearing “testifying” (Tosefta ch.3) and “appearing [in Jerusalem at festivals]” (Mekhilta ch. 20) but the שוטה lacks a rationale for exemption unless he, too, is generally exempt from a category, maybe all-encompassing, of commandments into which this falls. This thesis is further supported by other mishnayot, which state that the חרש ,שוטה and קטן cannot “read the megillah [to the masses],” (Megillah ch. 2) that they cannot “sanctify [the red heifer],” (Parah ch. 5) and that they cannot “lean [on sacrifices];” (Menachot ch. 9) presumably this is because they have no obligation to hear the megillah, or purify via the red heifer, or bring sacrifices, and why but because they have preceptually limited obligations. Additionally, the שוטה is listed without rationale as exempt from appearing in Jerusalem at festivals in the mishnah, (Chagigah ch. 1) as well as in the Mekhilta (ch. 20) which outlines the specific exemptions of other categories from the commandment.

We will continue by exploring the tosefta and talmudic sources, tracking the evolution of the definitions and legal ramifications of the cases חרש and שוטה. We will delve into philosophical and technical discussions as we move towards a comprehensive framework for dealing with contemporary חרש and שוטה cases. As the חרש and שוטה which were often distinct in early sources converge in the mishnah, will they change again? Wherein lie the originators and resolvers of the modern conundrums confounding all and driving this summer’s SBM?

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Excerpt from Teshuvah for SBM 2016

by Rabbi Aryeh Klapper

Excerpted from Rabbi Klapper’s SBM 2016 Teshuvah – stay tuned for the full teshuvah and teshuvot from the SBM Fellows!

What are we seeking to achieve as dinei mammonot (halakhic financial law) judges?

In his methodological essay Darkah Shel Torah, R. Eliyahu Bloch of the Telshe Yeshiva contends that dinei mammonot have all the general aims of secular economic regulations, but in addition contain elements with purely transcendent purposes.  Fundamentally, this suggests a utilitarian stance moderated by humble awareness that one cannot know G-d’s purposes in their full depth.

The purposes of secular economic regulation are order, justice, and equity.  Order requires predictability, and favors simplicity; people cannot follow the law if they don’t know or understand what it is.  Order can be just or unjust, equitable or inequitable.

Justice will be defined here as being treated in accordance with objective rules that whose principles are compatible with ethics.  Justice cannot exist in the absence of order.  But justice can lead to inequity, as a rule-based system sometimes cannot account for individuals and individuality, or for unusual specific circumstances.  The catch-22 is that one can lose order and justice if one seeks equity too aggressively.  

The ideal is to develop laws that yield justice and conform to equity the vast majority of the time, so that the need for equitable adjustments is low enough that it does not undermine order.

How can dinei mammonot judges accomplish this?  One key challenge is that they must pasken in ways that both shape and respond to expectations.  The ethical outcome in a financial transaction is often defined as having the parties get what they expected.  But not always!  For example, some transactions are entered into under duress, or in the expectation of bullying or fraud.  

The expectations of contemporary Jews, in both Israel and the United States, are largely shaped by contemporary Western notions of contract law rather than by formal halakhic precedent.  For example, in nonritual matters, parties generally conceive of contracts as self-enacting rather than as dependent on a subsequent giving of consideration, or on a separate maasei kinyan.1  

However, Western law has a host of doctrines (such as those of frustration and impossibility) that enable one to break a contract in light of unconsidered subsequent events.  These doctrines are regularly litigated, even though that litigation rarely succeeds.  This suggests that there is a tension between expectations and the secular law, and perhaps even between intuitive ethics and the secular law.2

Under those circumstances, it seems reasonable to say that where halakhah is not formally bound by dina demalkhuta/secular law (as it would be if the arbitration agreement explicitly required this, or if the parties signed a contract accepting this, and perhaps even if we were dealing with a case that fell within the parties’ range of expected outcomes and the secular law were clear), dinei mammonot should focus on shaping expectations rather than on conforming to them.

On that basis, I suggest that we revisit the question of halakhah’s approach to contractual obligations in light of unconsidered events.

My argument thus far has been that attempts to explain our precedents on the basis of either pure da’at (determination of actual intent) or else formal principles of construction have been unsuccessful.  On the other hand, attempts to explain them on the basis of a set of decision principles that are interlocking, less sweeping, and perhaps less formal, have produced a muddle that is unconvincing and impractical.  

Let me note briefly here three phenomena that to my mind are clear evidence of both muddle and of impracticality.

  1. The claim that a type of evidence applies only to maintain possession but never to transfer it.
  2. The claim that a rule can be applied only in cases addressed explicitly in the Talmud or in cases that are really, really clear (to the judge in a particular case).
  3. The claim that there is enough legitimate controversy about a rule that the party in possession can win the case if its possession agrees with (=asserts קים לי regarding) any of a broad and contradictory variety of understandings of that rule

One may say that in such circumstances, halakhists should simply surrender.  They can argue that there is a mitzvah to submit oneself to the halakhah as it is, however muddled and impractical, while conceding that it would be better were halakhah otherwise; when rabbinic authority is reconstituted, we will make takkanot to improve things.  

We must recognize, however, that such concessions will in practice make batei din unpopular destinations even for the most halakhically committed Jews.  I prefer, therefore, to see whether the halakhah can be reconstituted on the basis of honest interpretations of precedent, and thus the creation of new precedents.  I believe that the language of pesharah kerovah ledin used in the standard halakhic arbitration agreement allows us to be more prescriptive about the law in our decisions than is usual for halakhah.  We can decide in accordance with what the law should be, and thus over time transform ought into is.

I contend that there is an alternative to the da’at, formalist, and hodgepodge approaches presented above.  This alternative is implicit in many past precedents, and some aspects of it have been formulated by great decisores, but I suspect that it has not previously been fully articulated.  For convenience sake I will refer to it as the “ta’aninan” approach.

In a variety of cases, for example when a party is a minor orphan who inherits a claim without personal knowledge of the underlying facts, halakhah permits batei din to interpose legal claims on behalf of that party.  My suggestion is that when dealing with implicit conditions regarding unconsidered events, halakhah’s default setting is to treat all the parties as orphans.  We therefore make on their behalf all the conditions they would have made had they in fact anticipated the events.

Many of these conditions will directly conflict, of course.  We resolve conflicting claims by a game-theory method – we ask first whether party B would have walked away from the transaction rather than accept party A’s condition, and conversely, whether party A would have walked away from the transaction were party B to refuse their condition.  Whichever party would have walked away, wins.

I need to acknowledge that in reality, the parties would likely have negotiated, and agreed on a price for the condition.  This is in principle a fine tool for achieving equity and/or pesharah, and therefore should be available to batei din for those purposes.  However, no use of it is even hinted at in the precedents I have seen.  My sense is that it would generate results that are too subjective and speculative for law, along the lines of נתת דבריך לשיעורין.  

Therefore, I believe that halakhah as such must play the game artificially, with the parties having no options other than accepting a condition or refusing the transaction.

Similarly, each condition must be analyzed independently, even though in actual negotiations they would be bundled or traded for one another.

I note again that this is a mechanism for dealing with the hypothetical, not for figuring out what the parties’ actual intentions were – we are dealing with cases where there were by definition no such intentions.

I also need to mention that Professor Robert Aumann has previously theorized that at least one tanna, Rabbi Natan, thought in game theory modes.  Finally, I need to thank my friend Chava Evans, whose gift to me of Game Theory and the Law many years ago was enormously productive to my thinking.

I also need to make clear an aspect of this theory which may strike some as cheating, or as creating epicycles of its own.  Since this is fundamentally a tool of equity, like ta’aninan, the legal system is not ethically obligated to allow every possible move in the game.  Thus we may “penalize” a player for having acted unethically, or we may bar certain moves because they will have unfortunate general economic consequences for the community.  It particularly allows us to bar moves in some areas of law, such as marriage and divorce, while allowing them in others.  My contention is that the system will remain “elegant” because all allowed moves are evaluated in the same fashion.

Thus far theory.  What I need to do now is explain how the theory works to explain the primary sources on this issue, and according to which secondary sources.  Following that I will – at long last – return to the specific case at hand…

Notes:

  1. This paragraph owes much to presentation notes generously shared by Professor Chaim Saiman of Villanova Law School.
  2. This paragraph owes much to a presentation by Professor David Phillips of Northeastern University Law School at SBM 2016.  Any errors are of course my responsibility.

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2016 Summer Beit Midrash Shayla

by R’ Aryeh Klapper

After five weeks of learning about Halakhot relating to contracts, the SBM fellows have been posed the following Shayla. Stay tuned for R’ Klapper’s response!


Shulamit Moskowitz Cherchofsky and Ezra Stiebel are a married couple in their early thirties. respectively, a Hebrew teacher and entrepreneur living in small rental quarters in Maalei Adumim.  But they have a dream, embodied in a mortgage (51% paid off!) on a plot and a building permit on an as-yet-unbuilt-up hill in Efrat.

Reality intervenes.  In January 2016, Shulamit is offered a job as a Hebrew teacher in a community Jewish school in Oklahoma City, Oklahoma.  It seems a great opportunity for her, and they begin preparing for the transition.  They plan to arrive on Oklahoma City on August 10, and get in touch with real estate agents immediately, hoping to buy.

First they sell the mortgaged land, to the American Orthodox developer Donald Chevreman, closing on February 28.  Chevreman owns many other lots in the same area, and has been pressing them to sell for several years.   Then Ezra puts in an order for 100 handpainted t-shirts featuring Kevin Durant in his OKC Thunder uniform at $15 each, from the local designer Olga Cassini.

All seems in order until July 4.  On that date, Kevin Durant chooses to sign with the Golden State Warriors.  Within two weeks, Durant’s restaurant in OKC closes, and there is no market at all, certainly in OKC, for T-shirts of him in a Thunder uniform.

Then, on July 28, they receive the news that the school is closing, for lack of funds.

Shulamit and Ezra sue Donald in a local beit din to undo the transaction. and get their land back.  Donald counterclaims that the mere association of his name with their plot of land has raised its value significantly, and that he is at the least entitled to its current market price.  He also asks for ZABLA.  Meanwhile, Olga sues them for payment for the t-shirts, 50 of which she has already made.  An arrangement is made to consolidate the cases in an ad hoc international beit din, and you have been appointed to the panel.

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Week Five Summary of SBM 2016

This week’s summary is written by Yehuda Gale and Tzipporah Machlah Klapper

This week we learned teshuvot showing how the ideas we were learning were understood throughout the period of the achronim. Minchat Shlomo (Rabbi Shlomo Zalman Auerbach z”l) begins his discussion of unstated conditions from Tosfot Ketubot 47. Tosfot asks why (if some transactions can be undone through unstated conditions = adaata dehakhi) can’t every person who buys a cow and finds it to be a traifa reverse the transaction? Tosfot answers that we know in such cases that the buyer would wish to enter the transaction even if they were not allowed to make such a condition. Minchat Shlomo explains that this is because he entered the transaction aware that the animal might be a traifa, and therefore accepted the risk. He adds that Tosfot isn’t saying that we need to know for certain that he would have been willing to enter the transaction without this condition; even if we were uncertain of his intentions, we would not reverse the transaction, because his claims about his intentions would be “words of the heart,” which do not have legal significance.

Tosfot also asks why gemara Bava Kamma 110, when exploring the effectiveness of unstated conditions, raises the case of a yevamah whose potential yavam has boils (and seeks to void her original marriage to avoid the relationship), rather than the straightforward case of a woman whose husband develops boils. He answers that in that case, the husband’s intentions matter too, whereas the yevamah’s husband is dead and does not care. He posits this as a general distinction between cases where only one party cares and cases where both do.

The case Tosfot is commenting on allows a husband whose wife died after eirusin but before nisuin to avoid paying any ketubah commitments beyond the mandatory minimum because he “wrote it in only order to marry her”. His answer is therefore puzzling; in that case, shouldn’t her daat matter too?! Mishneh LeMelekh suggests that unstated conditions can be considered even in cases of two-sided daat even against the will of one party as long as there is no loss to that party; returning to the pre-transaction state is not considered a loss.

Netivot HaMishpat writes (as summarized by the Minchat Shlomo) that in a case where one bought wine from one’s fellow to sell elsewhere and then wine prices fell everywhere, the original purchase is void because the seller does not lose – the wine would have gone down in price even if it had been with him. Only in a case where the cow becomes a traifa does he lose, because the seller could otherwise have slaughtered or sold it to others, which could not be done in the case of the wine because the price fell before he wine could have reached its intended destination.

Minchat Shlomo is astounded at this because he believes that Tosfot was only talking about a “davar tzdadi” (possibly: one-sided matter, peripheral matter, unusual matter) like traifa and death, but price fluctuations are a case where people do cost-benefit analyses and accept the risk (as a fundamental element of the transaction). He further objects to the entire idea that getting the money back is a case of no loss, because perhaps the price went up for the object he bought or the value of the currency fell.

The Minchat Shlomo suggests instead that there are two categories of umdena. An umdena gedolah is one where we are absolutely certain that he would not enter the transaction had he thought of this possibility. For instance, cases where money was given over on the presumption of a marriage that was ended prematurely through the death of a spouse are so clear-cut that the recipient of the money’s daat is irrelevant – after all, what reason would a father have to give money to his son-in-law once his daughter is dead? He claims this idea is also found in the Node BeYehuda.

This does not apply to the claim of the Netivot, where the umdena is not as strong.  The presumed objection of the seller therefore prevents the buyer from using an unstated condition to reverse the transaction.

But Netivot also claims that the Buyer cannot reverse the transaction once he has had the potential to derive any benefit from it. Why should this be so? There is no such rule if the condition was stated, and we have just said that the other person’s presumed intent is irrelevant. Similarly, Minchat Shlomo points out, Talmud Bava Kamma should raise its question about a yevamah whose husband died after nisuin but before actual consummation, but Tosafot say that the question applies only between eirusin and nisuin!

Furthermore, in every case where a woman dies after eirusin before completing the marriage,  why should we not say that the marriage is undone retroactively? After all, its only effect was to forbid the husband to marry her close relatives!

Minchat Shlomo responds to these difficulties by presenting a new way of looking at unstated conditions. He argues that they are not actually conditions (tnaim) at all! Conditions must be explicitly and formally stated, and the court’s knowledge of someone’s mindset or intentions cannot constitute a condition. However, when the transaction is incomplete – for example, if the purchaser has had no opportunity to derive benefit from the purchase – the court is entitled to consider the presumed or known intent of the parties.

However, Rabbi Meir of Rothenburg (Maharam) famously argued that while gemara Bava Kamma (as he understood it) concludes that women would rather have a boil-ridden husband than no husband at all, women would rather be alone than be married to apostates. In such cases, we therefore should be able to undo a yevamah’s marriage even if she had already completed the marriage with nisuin. This shows that he believed that even complete things can be affected by unstated conditions.

It follows that according to Netivot, parties in civil cases should be able to claim (kim li) that they follow Maharam, and therefore undo even completed transactions on the basis of strong unstated conditions. Their claim should at least shift the burden of proof in a case, and thus let whoever has possession win. To prevent this result, Minchat Shlomo suggests that one cannot claim unstated conditions when the relevant factors were so plausible that you should have mentioned them explicitly, rather only when the relevant condition is very unlikely.

We next saw the Rosh (Responsa Klal 34 Siman 1), who organizes the cases of reversed transactions in the gemara into three categories of tnai (taken from the Ri): transactions which only an explicit tnai can reverse, transactions which require at least explicit revelation of intentions, and transactions where one’s intentions are so obvious that one does not need to explicitly state them.

The Re’eim (Siman 16) lays out a similar triad: an umdena (legal estimation) which is extremely obvious and therefore not referred to as “words of the heart”, an umdena which is less obvious and requires explicit revelation of intentions, and an umdena which is so weak that it requires a tnai. This is the same as the Rosh, except that he assimilates all unstated conditions to umdena whereas the Rosh assimilates them to tnai.

Re’eim concludes that the ability to make umdenas regarding people’s intentions is no longer extant. We therefore cannot make new umdenas and use them to remove money from people, but we can use those referenced in the gemara and also very obvious ones, i.e. those where there is no other thing it could be.  This position is cited with approval by Responsa Ginat Vradim Choshen Mishpat Klal 5 Siman 1 and Responsa Chacham Tzvi in Siman 135.

The final source we looked at was the Rim (Even HaEzer 25). He defines a “clear umdena” as a condition which, had it been raised at the time of transaction, would have been a deal-breaker. How can we know which conditions would be deal-breakers? Where it is normal for one party to accept the risk, such as in the case of buying an animal even though it might be a traifa, there can be no umdena; we will not presume that this party would have demanded a condition unsupported by the market. But how do we evaluate transactions which do not have a defined market practice for sharing a particular risk?

We put forth two explanations of this. Rabbi Klapper suggested that this explanation is indicative of a game theory model where we envision all conditions that any party would want, remove any that contradict, and then see which party would concede on the remaining ones. In this vision, the chazakot used in the gemara to establish daat are assignations of bargaining power. This has the advantage of explaining all cases in the gemara nicely but may not be a sufficiently predictive principle. Further, there is no one in any historical precedent who states this directly.

The other possibility is that the Rim allows unstated conditions only when those conditions are assumed by the market. Thus, the traifa case is one where the tnai is not normal and therefore the buyer cannot get his money back, but the case of wine losing its value before one has the opportunity to sell it is normal and therefore reversible. This has the advantage of being practical and predictable but does not help us deal with new or unusual cases or circumstances. In this vision, the chazakot in the gemara are statements of market expectations.

 

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