Class Notes - Class #18

The mitzvot in this series are about charitable behavior.

            Mitzvah #479 requires Jews to share their personal wealth with those in need.  Mitzvah #478 is a negative version, telling us not to refrain from giving in order to provide for people in need. Our author views these mitzvot very broadly, to include helping anyone in need any way we can.

            The core of these mitzvot, though, is financial, using our personal wealth to benefit those who have basic needs for food, clothing or shelter that they cannot fill. Ideally each community should institutionalize collection and distribution of charity by establishing a committee. The committee shields the donors from knowing who is receiving charity and the recipients from knowing who is giving the charity. The needy people are protected from the embarrassment of having to beg and from having everyone know about their needs. The author cites Rambam, who says every Jewish community he has ever encountered that consists of ten or more Jews has an established charity committee.

            But these mitzvot can apply to people who have financial resources but who find themselves in difficult situations.  For example, a wealthy person might be travelling and run out of money. (We are talking about a world without credit cards or ATMs.)  A wealthy person might have cash flow problems, or might be facing unexpected expenses because of illness or some other circumstance. Or there might be some specific item a wealthy person needs that can only be gotten from a specific person rather than on the open market.  Even a kind word can be a fulfillment of the mitzvah to provide charity.  We should help relatives, friends and strangers. We are required to act with kindness and generosity when we are asked, but we should also keep our eyes open and act when we become aware of needs even if we have not been asked for help.

            Poor people have a mitzvah to give charity, even if they are passing charity they received on to other poor people.  Our author assures us that giving charity will not result in poverty for the person giving the charity.

            The author also mentions several anomalous situations.  If a poor person does not want to accept charity, we look for a way to support the poor person that does not look like charity.  For example, we offer a loan knowing that we will not try to collect on that loan.  If a wealthy person lives like a pauper and wants to take charity rather than using his or her own wealth, that person does not get charitable distributions.       

            By way of shoresh, the author reminds us of what he said earlier. The Torah wants to encourage us to act with kindness and help other Jews when we can.  When we help someone in need, we become partners with God in building the kind of society God wanted.  We should act charitably with gladness and generosity of heart.  We should be prepared to give over and over again. The author’s expansive approach to this mitzvah is consistent with the notion that mitzvot encourage us to internalize the values the mitzvot represent.  It is hardly surprising to find our author writing passionately and expansively about a mitzvah that requires us to try to recognize other people’s needs and to act to alleviate suffering.  Nor is it a surprise that the author addresses his son directly when discussing this mitzvah.

            In this context the author specifically mentions helping other Jews.  In most other contexts when the author is discussing kindness and generosity, the author speaks more generally of our helping other people. 

            Mitzvah #66 requires helping poor people financially by lending money to poor people.  The author says a loan can be better than a charitable gift because the loan might be just enough to let the poor person get back on track and never need to ask for charity at all.  Mitzvah #67 prohibits a creditor from trying to collect a loan when the creditor knows the debtor cannot afford to repay the loan. 

Loans are important for poor people, but shmittah cancels most loans.  If shmittah cancels loans, poor people will have trouble obtaining loans that would come due during shmittah.  Mitzvah #475 is a negative mitzvah prohibiting creditors from trying to collect debts that have been cancelled by shmittah. Mitzvah #477 is a positive counterpart, requiring lenders to refrain from trying to collect debts that have been cancelled because of shmittah.  Mitzvah #480 instructs us not to refrain from lending to poor people even if the lender will not be able to demand payment for those loans because of shmittah.

The author shares his understanding of the shoresh of the institution of shmittah in mitzvah #84, the mitzvah requiring that we leave land in Israel uncultivated during shmittah.  By refraining from ordinary agriculture, we recognize God as the owner and master of our world.  It reminds us that our food is not just the result of our own efforts, but also the result of God’s help.  When we depend for food on produce that grows without human intervention we increase our trust in God.  And when other people come to take food growing on our land we learn to be generous.  That quality of generosity is reinforced when we relinquish our claim to money we have lent to others.  And giving up on collecting loans inculcates us against the temptation to steal.  If I am willing to give up on collecting money someone owes me, I will also be willing to forego an opportunity to take stuff that doesn’t belong to me.

We have enough experience with halachah related to financial transactions for us to expect the application of these mitzvot to be complex. And we have seen many times that a financial transaction can be interpreted in several different ways.  There is a real tension to the issue of remission of debts in shmittah.  The institution of remission of debts seems to be an attempt by the Torah to protect poor people from being overwhelmed by debts they cannot ever repay.  But affluent people will be reluctant to lend to poor people if the lender seriously doubts that the debt will be repaid even if there is a mitzvah that tells the affluent to make the loan anyway. 

Loans of money are remitted in shmittah, but other forms of credit are not. For example, when a shopkeeper extends credit to customers, the customers still have to pay even if shmittah intervenes.  If an employer owes unpaid wages to an employee, that debt is not a loan and is not remitted in shmittah. A man who divorced his wife but did not pay out her ketubah remains liable even if shmittah comes. But it is possible for those debts to be converted into loans.  (The author does not say exactly how that would happen, but the notion of “restructuring” debt is familiar.  One factor in converting other debts into loan may involve defining a specific date by which payment is due.)  Debts that are converted into loans are remitted in shmittah.  If the husband who owes the ketubah has paid part of it, the action of repaying part converts the ketubah debt to a kind of debt that is remitted in shmittah.

Loans between individuals are remitted in shmittah but other loans are not remitted.  For example, if the beit din appoints a trustee to care for the financial wellbeing of orphans and the trustee lends money on behalf of the orphans, that loan survives shmittah.  The trustee is operating as an agent of the beit din, so the loan is not a loan between individuals.  In a loan between individuals, the creditor could turn the debt over to a beit din for collection, and that would preserve the debt through shmittah.  That is the basis for the “prozbol,” a formalized mechanism for structuring loans to survive shmittah by shifting the responsibility for collecting the loan to a beit din.

The exact conditions of the loan are also relevant to determining whether the loan is remitted in shmittah.  If the loan has a condition that the loan will not be remitted in shmittah, that condition has no effect and the loan is remitted in shmittah since the condition violates the Torah rule.  If a loan is remitted in shmittah, the borrower may still choose to repay it. So if the loan has a condition that the borrower will not cancel the debt even in shmittah, that condition works and loan survives shmittah.    So if a borrower promises to repay as a personal obligation, the condition is valid and shmittah does not void the loan.

And the term of the loan also matters.  Shmittah voids loans that have no specific time for repayment or are due at the point in time when shmittah would void those loans.  But a loan for a defined period of time that makes the loan due after shmittah survives shmittah.  So if a lender makes a loan for a term of ten years, shmittah will intervene during the term of the loan but since the loan is not due in shmittah the loan survives. This makes it easy to structure long term loans between individuals so that the loan is not remitted in shmittah.

The issue of collateral for loans is also crucial, as loans with different types of collateral might be treated differently when shmittah comes.  Loans can be unsecured, or they can be secured by some of all of the debtor’s property.  A secured loan can be secured by specific property of the debtor or by all of the debtor’s property.  It can be secured by land or by moveable property, or both. Land, which cannot be destroyed, is more reliable collateral than moveable property. The collateral might stay in the possession of the borrower or might be held by the lender. If the loan is secured by specific property, the lender might be considered the owner of the property, which the borrower recovers when the borrower repays the loan.  The borrower might continue to own the property until the borrower defaults.  Or the lender might have some rights to the collateral property but not full ownership.  The collateral might be worth the amount of the debt, or it might be worth more or less than the debt.  Some loans are documented in a written contract, and others are not.  Some loan contracts cover issues of collateral and other do not.  The legal system will have to provide default rules for issues a loan contract does not cover, for example whether there is collateral in cases where the collateral is not specified in the agreement or what the term of a loan is if the term is not specified. Courts in one place might infer different default rules than courts in other places. All of these issues have implications for whether a given loan is remitted in shmittah.  Our author’s discussion is hard to follow, in part because there are so many possibilities to keep track of.  It is probably more important to understand how complex these issues than to keep track of the different results in individual cases.  As we saw in the author’s discussion of n’veilah, our author may be trying hint at how much more complex things can get than even the most complex issues he teaches us about.

Twice in his discussion of these issues our author cites Rambam for a rule which our author thinks is inconsistent with the Talmud.  The author explains Rambam’s opinion, and then cites the Talmudic passage which seems to contradict Rambam.  This is another example of our author respectfully disagreeing with a major scholar.

Loans that are remitted in shmittah are remitted at the very end of the year, at sunset of the day before Rosh haShannah.

The d’oraita requirements that land reverts to its original owner and that debts are remitted in shmittah apply only when yovel is functioning, although the remission of debts applied everywhere. The rabbis extended remission of debts in shmittah after yovel stopped functioning to insure Jews would not forget this mitzvah.  So by Torah law now a debtor is required to pay a creditor but by rabbinic law the debtor is not required to pay the creditor.  As we have seen before, the rabbis assert their power to assign property of one person to another person under the principles of “hefker beit din hefker.”

Although a creditor may not be able collect on a loan because of shmittah, mitzvah #480 prohibits people of means from avoiding loans to poor people because the loans might be remitted in shmittah.  The author explains that this notion is so important that the source verse, Deut. 15:9, twice articulates the prohibition on refraining from lending to the poor despite the possibility that shmittah might void the loan.

The author reiterates that the shoresh of this mitzvah is to instill the character trait of generosity and diminish stinginess.  Loaning money to a poor person knowing that the loan may not be repaid is the epitome of generosity.  The author explains that we can expect God to be generous to someone who is generous to others.  More generally, we can expect God to behave toward us as we behave toward others. 

We noted above that it is not hard to structure loans so that the loans survive shmittah.  Given that, the mitzvah to make the loans anyway might seem unnecessary; wealthy people will just make the loans under circumstances that the borrower will be obligated to obey even if shmittah intervenes. The author says lenders do this frequently.  The author answers that the Torah might forbid things even if the forbidden thing can be easily avoided.

Mitzvah #476 continues on the topic of demanding repayment of loans, but Rambam and Ramban have very different understandings of this mitzvah.  At the beginning of Deut. 15 we are told that every creditor shall release his brother, his neighbor, from loans at the end of the seventh year, shmittah, but “et hanachri tigosh,” “from the stranger you should/may collect it.”  The author quotes the midrash halachah for the proposition that those words create a positive mitzvah. 

According to Rambam, this is a positive mitzvah not to relax terms on some loans.  The source verse identifies the borrower as “nachri,” which would seem to mean any non-Jew.  The Feldheim edition is unclear about whether our author specifies that this is referring to idol worshippers.  The English version specifies idol worshippers, but the Hebrew version has that terminology in parentheses.  The author’s shoresh is that we should not teach ourselves to have compassion for people who could lead us astray, a notion he has used before in reference to idol worshippers but not to non-Jews in general.  As to the scope of this mitzvah, the author explains that according to Rambam we may not relax the terms of these loans just out of generosity, but we may relax the terms of a loan for fear of the borrower, to make it more likely the borrower will repay, or for any other reason the lender considers it an advantage to do so.

Ramban understands the source verse very differently, as a way to contrast our obligation to forgive loans to other Jews in shmittah from our right to collect such loans from non-Jews.  It does not create an obligation to demand payment for those loans; rather, relaxing the terms of those loans is entirely permitted.  The midrash halachah identifies these words as the source of a positive mitzvah, and Ramban understands that mitzvah to be a positive mitzvah such that if a Jew tries to collect a loan from a Jewish borrower after shmittah has intervened, the lender violates a negative mitzvah, #475, and this positive mitzvah.

The author says there is a similar disagreement between Rambam and Ramban about mitzvah #573, so we may get more information on our author’s thinking later in our study.

Another situation where a relatively wealthy person encounters poor people is when someone becomes an eved ivri.  To review, an adult male can sell himself as an eved ivri because he is impoverished, or can be sold by beit din because there are certain judgments against him that he cannot pay.  A father can sell his underage daughter; she remains in service until she reaches puberty, when she either marries her master or his son or she goes free. An adult woman does not become an eved ivri. Whether the eved ivri goes free at the end of his term of service or goes free because of yovel, typically, an eved ivri who is freed is still impoverished.  Mitzvot #481 and 482 are a positive/negative pair that require the master to give a bonus to an eved ivri when the eved ivri goes free. 

This is another mitzvah that encourages us to be generous rather than stingy.  Here we are required to be generous to people who we might tend to look down on because they have been in service to us.  We should be generous even though we have paid the purchase price for the eved’s labor. We should be generous even if the eved’s work has not been entirely satisfactory. We should be generous to an eved whether he served a long term or a short term. This is another example of our author seeing the Torah asking us to see the essential humanity in everyone no matter what their problems or social status.

The master must provide the eved with domestic animals, wine and olive oil with at least one sela. (A sela is 100 grams of silver.  The current value of silver is just over $1 per gram.)  The master need not provide cash or clothing, but our author emphasizes the importance of generosity so a master would do well to give a larger bonus or include other things.  A creditor of the freed eved may not collect from that bonus. The master is not required to give this bonus to an eved ivri who manages to buy his own freedom.

 

Mitzvah #483 prohibits Jews from working animals consecrated to be sacrifices. Mitzvah #484 prohibits shearing those animals.  Although the source verse, Deut. 15:19, refers only to firstborn animals, the midrash halachah understands it to be referring to all animals consecrated as sacrifices. The author goes on to say that Jews are forbidden to get any personal benefit from any consecrated things, whether they are animals consecrated for sacrifices or anything consecrated as a donation to the Temple.  These prohibitions on working or shearing consecrated animals apply even if there is no benefit gained from those activities.

The rubric of what happens when someone misuses and/or gets benefit from consecrated things is complex, and the author puts us through our paces trying to keep track of all the possibilities.  His detailed discussion uses analytical techniques he has taught us earlier, but here those techniques are stacked on each other.  The author takes another opportunity to show us how much more complexity there can be in halachic discussion.

The act of benefitting illicitly from consecrated things for the value of a p’rutah or more is called “me’ilah.”  In mitzvah #447, which prohibits anyone from eating the meat of an olah, the author mentioned in passing that that mitzvah also prohibits me’ilah, but he did not define me’ilah.  Apparently he was saving his discussion for these mitzvot, where he covers both me’ilah, getting benefit from any consecrated things, and the prohibitions on working or shearing animals consecrated as sacrifices.

As usual, having made the close distinction between me’ilah and the prohibitions on working and shearing animals consecrated as sacrifices, the author plays out the implications. Someone who is guilty of intentionally shearing an animal consecrated as a sacrifice is punishable with malkot. But someone who shears an animal consecrated as a donation to the Temple does not violate the d’oraita prohibition on shearing an animal.  If that person gets benefit from that shearing, that person is guilty of me’ilah.  But as to the specific prohibition in mitzvah #484, shearing an animal consecrated as a donation to the Temple only violated a d’rabanan.

Some things we might think fit the category of me’ilah do not.  For some sacrifices, for example a hattat, after the blood of the sacrifice has been sprinkled on the altar, the cohanim eat part of the meat of the sacrifice.  An ordinary Jew may not eat that meat, but if an ordinary Jew does eat that meat that act is not me’ilah since someone was allowed to eat that meat. Even if something happens to make eating that meat prohibited to everyone, since someone was permitted to eat that meat for some amount of time, an ordinary Jew eating that meat is not guilty of me’ilah.  (That person may be guilty of some other transgression, though.)

Someone who is guilty of me’ilah intentionally, b’mazid, where the benefit is worth at least a p’rutah, has to compensate the Temple and is punishable with malkot.  If one has an animal and one is in doubt about whether that animal is consecrated one may not shear or work that animal.  But someone who does shear or work that animal is not punishable with malkot.

Someone who is guilty of me’ilah without full intention, b’shogeg, where the benefit is worth at least a p’rutah, attains atonement by compensating the Temple, paying a penalty of 1/5 (25% of the benefit, or 20% of the total of the benefit and the penalty), and bringing a asham me’ilah sacrifice. (We learned about the obligation to bring an asham me’ilah and pay the penalty in mitzvah #127.)   Someone who is in doubt about whether he or she is guilty of me’ilah need not pay compensation or bring an asham sacrifice.

Where we have a rubric with three elements, we should not be surprised to find a discussion of which of those elements are m’akev and which are not.  Here, the compensation and the sacrifice are m’akev, but paying the penalty is not.  So the person guilty of me’ilah achieves atonement if the person makes compensation and brings the sacrifice, even if the person did not pay the penalty.  We have wondered before what it means to “achieve atonement.”  Nor should we be surprised to find discussion of the order in which someone should do those elements.  Specifically, the person must first make restitution and then bring the sacrifice.  If the person brings the sacrifice first, the person has not fulfilled his or her obligation. 

Some acts of using consecrated property are me’ilah according to the Torah, but some other acts are considered me’ilah by rabbinic legislation.  Someone guilty of me’ilah d’rabanan has to pay compensation but does not pay the penalty or bring the sacrifice.

Since mitzvah #484 prohibits shearing consecrated animals, we will need a definition of how much hair removal from a consecrated animal constitutes shearing.  The author cites Rambam for the proposition that the minimal amount of shearing it takes to violate the prohibition on shearing a consecrated animal should be the same as the minimum amount of shearing it takes to violate Shabbat, that is enough wool to create a thread long enough to go twice around the spread of one’s thumb and forefinger.  We could also use a definition of what kind of hair removal constituted shearing, but our author does not supply that except to say that plucking out hair is not the same as shearing.

There are also cases where someone consecrates part of an animal.  Let’s say the owner of a pregnant animal consecrates the fetus.  It is impossible to shear or work the fetus, so d’oraita those prohibitions do not apply.  But the rabbis forbade working the mother animal since working the mother animal might harm the fetus.  The rabbis did not forbid shearing the mother animal.  The author says that if the owner of an animal consecrates one limb of an animal, the issue of whether one may work or shear that animal is unresolved and therefore someone who worked or sheared that animal is not punishable with malkot.

The author also discusses how these mitzvot relate to a consecrated animal that has a mum.  Mitzvah #441 requires the owner of a consecrated animal that develops a mum to redeem the animal for money.  The author explained that after the animal was redeemed one is permitted to slaughter the animal and eat the meat.  In that mitzvah/essay the author did not say whether the redeemed animal could be used for other purposes, but in this essay the author clarifies that Jews are not permitted to work or shear the redeemed animal.  But the author distinguishes that case, where someone consecrated an unblemished animal and then that animal developed a mum, from a case where someone consecrated as a sacrifice an animal that already had a mum.  That animal cannot actually become a sacrifice, so d’oraita there are no prohibitions on working and shearing that animal.  Working or shearing that animal is forbidden d’rabanan, however. And if that animal is redeemed it becomes an ordinary animal in every respect so one is permitted to shear or work it.  These rules do not apply to a tithed animal or a firstborn male animal with a mum; those may not be sheared or worked.  They may not be brought as sacrifices, but under the right circumstances someone may slaughter and eat them.

According to the author, one may not get benefit from wool pulled off a consecrated animal by hand, even if the animal has a mum. Sometimes wool from a consecrated animal comes loose by itself.  The author says one may get benefit from wool that comes loose from a consecrated animal that has a mum. (Presumably one may not get benefit from wool that comes loose of its own from a consecrated animal without a mum.)  But one may not get benefit from wool that comes loose from a firstborn.  The author does not say why.

There might be a good reason for someone to remove some of the hair from an animal that one would otherwise be forbidden to shear.  Two questions ensue:  may someone remove the hair, and may that hair be used once it is removed.  In order to shecht the animal properly, the slaughterer might want to clear away the hair from the area of the animal’s neck to be cut.  The slaughterer may pluck out that hair, but should leave that hair entangled in the rest of the fleece.

Determining whether or not an animal has a mum sometimes depends on an expert evaluation, and sometimes some of the hair of the animal needs to be removed in order to make the blemish visible to the expert.  It is permissible to remove the animal’s hair for that reason.  But one may not get benefit from that hair after is it removed.   Even after the animal has been shechted one may not get benefit from the hair that was removed while the animal was alive.

 Another factor comes into play here.  Someone who has consecrated an animal as a sacrifice might delay bringing the sacrifice hoping the animal will lose hair that the owner can use after the animal is slaughtered.  During that delay someone might end up improperly working or shearing the animal. That concern led the rabbis to forbid using hair removed from certain consecrated animals even though d’oraita it would be permitted to use that hair after the animal was slaughtered.  If the sacrifice is one that brings atonement, a hattat or asham, the person who consecrated the animal is likely to bring the sacrifice promptly because the person wants to achieve the atonement, and that will probably override any temptation to delay.  But if the animal is a firstborn, or a tithe, or an animal that has developed a mum, and that animal is losing hair or there are reasons why the animal’s hair can be removed, the person might delay slaughtering the animal in the hope that more hair will become available and the person will be able to use the hair after the animal has been slaughtered.  Therefore the rabbis instructed that one ought not to get benefit from hair that falls out on its own or is removed for a justifiable reason.  The author says it is not clear which category an olah falls into. 

The author reminds us that the rabbis forbade our consecrating things after the Temple was destroyed.  But is someone did consecrate something, the relevant mitzvot still apply.

 

 

 

 

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