Class Notes - Class #12

Our next two classes will cover mitzvot that govern how we should treat other people.  These mitzvot cover uncountable different situations, so the mitzvot are defined more by conceptual principles than by precise details.  The source verses for these mitzvot are Lev. 19: 16 – 18.  These verses consistently use the terms  amecha,” “your nation,” “achicha,” “your brother,” and “re’ecah,” “your neighbor.”  The rabbis understand these terms to limit the scope of these mitzvot to how we relate to other Jews.  But the shoreshim of these mitzvot would apply to our relationships with anyone.

 

First we have mitzvot prohibiting cursing other Jews.  We already saw two mitzvot on this topic:  mitzvah #69 prohibits cursing a judge and mitzvah #71 prohibits cursing the sovereign head of the Jewish people.  (Mitzvah #70 prohibits cursing God.)

Mitzvah #231 prohibits a Jew from cursing another Jew.  The source verse, Lev. 19:14, only prohibits cursing a deaf person.  Onkelos interprets the verse to prohibit cursing someone who cannot hear the curse.  The author traces the midrash halachah’s expansion to prohibit any Jew cursing any other Jew.  It looks to the source verse that prohibits cursing judges, God and sovereign leaders, Ex. 22:27, and focuses on the phrase “among your people you shall not curse.”  In context, that phrase is about cursing sovereign leaders, but the rabbis treat it as a prohibition on its own.  Why does the verse here only mention cursing deaf people?  The midrash halachah says that prohibits cursing live people but not cursing dead people.  Perhaps the rabbis formulating these interpretations had a conclusion in mind and were looking for a way to read that conclusion back into the Torah text.  We cannot know where that preconceived notion came from; perhaps they had an ancient tradition.

This is one of the rare mitzvot that are punishable even though the prohibition can be violated simply by speaking.  Any curse is prohibited, but the curse is only punishable is the person curses in God’s name, using a direct or attributive name of God.  (See the Hebrew text for examples.)  Of course, the person who curses is only punishable if there are witnesses and warning.  A person is punishable for cursing himself or herself.  The author points out that, given the right circumstances, a person could be punishable four times for one curse, if the person he or she curses is his or her Jewish parent who is both the sovereign ruler and a judge. 

The author spends most of this essay discussing what is wrong with cursing.  He is puzzled about whether a curse is effective, and explores several possibilities.  First he considers the possibility that curses are effective.  People in all cultures fear curses.  Although we do not know a mechanism that might make a curse effective, people are afraid the curse might bring bad results for the person being cursed.   If curses are effective, then the shoresh of this mitzvah relates to God not wanting us to harm others with our words just as we are supposed to avoid harming others by other means.

It could by that curses are effective because they stem from the spirit of God that dwells in people.  Thus, when people speak, what they say effects the physical world, especially if the speaker is a worthy person. The more spiritual a person is, the more likely that person’s curse is to be effective.  The author says this is a well-known and widely accepted principle.

But the author suggests two ways in which curses are harmful even if the curse itself is not effective.  First, wishing ill on others makes people angry.  It tears at the fabric of a peaceful society.  That is true if the person who is cursed does not know about the curse, and even more so if the cursed person finds out about it.

Second, the author cites Rambam, who would not accept any notion of curses being effective.  Rambam says curses are forbidden because of the corrosive effect of the curse on the person doing the cursing.  Someone who curses is motivated by anger, rage, vengeance.  And God does not want us to act from those motivations.  This explanation fits well with our author’s overall approach to shorshei hamitzvah:  that doing mitzvot helps inculcate certain values in the person doing the mitzvah.  Perhaps that is why the author encourages acceptance of Rambam’s approach although the author personally agrees with other approaches.  Of course, these various explanations are not mutually exclusive.

Mitzvah #260 completes this set of mitzvot; it prohibits a Jew from cursing his or her parent. 

There are two verses that explain the punishment for cursing a parent, Ex. 21:17 and Lev. 20:9, and both say the penalty is death.  But there is no verse articulating the prohibition, so the rabbis need to find a Biblical source for the prohibition itself.  They rely on the same verse they used earlier, that prohibits cursing judges, God and sovereign rulers, Ex. 22:27.  The midrash halachah that the author quotes uses a form of argument called “binyan av,” although the author does not identify it as such.  In a binyan av, the rabbis derive one rule from the confluence of several different other verses.  The two punishment verses here tell us that we need to derive a rule that prohibits cursing a parent.  Three other mitzvot prohibit cursing a parent under specific circumstances:  the prohibition on cursing a judge prohibits a child cursing his or her parent who is a judge, the prohibition on cursing a sovereign ruler prohibits a child cursing his or her parent who is the ruler, and the prohibition on cursing a deaf person prohibits a child from cursing his or her Jewish parent.  The confluence of those three mitzvot is enough to create a prohibition on cursing a parent, given that the punishment verses require us to find some way to prohibit cursing a parent.  There is no explicit prohibition verse, so our author and Rambam cite one of the punishment verses for the source of this mitzvah.

The author fills in some details to help distinguish the applicability of this mitzvah as compared to the mitzvah prohibiting cursing another Jew.  The prohibition on cursing another Jew is punishable if the curse references a direct of attributive name of God. As to the mitzvah prohibiting cursing a parent, it is subject to the death penalty is the curse referenced a direct name of God, but is subject only to malkos is the curse referenced an attributive name of God. Although the prohibition on cursing another Jew applies only to cursing living people and the prohibition on hitting a parent only applies while the parent is alive, the prohibition on cursing a parent applies even after the parent dies.  This prohibition does not apply to cursing one’s grandparent; someone who curses his or her grandparent is punishable by malkos for violating the prohibition on cursing another Jew.

The author also deals with the special case of a court administering a curse on someone.  We met one such curse earlier when we discussed sales transactions, especially sales transactions involving orphans. For example, let’s say a seller sells something to a buyer and the buyer pays but does not take possession or make a kinyan on the item.  Then the seller wants to rescind the transaction.  Since the buyer did not make a kinyan on the item, the seller has to power to return the money and rescind the transaction.  But the rabbis think that the seller is being unfair by doing so.  If the dispute comes to court and the seller insists on rescinding the transaction, the court curses him with a curse called a “mishepara.”  Here, the author says that if the court is administering such a curse to someone, the court ought not ask the person’s child to speak the curse.

The author also says this mitzvah extends beyond cursing parents to also prohibit disgracing one’s parent.  The court should punish a person who curses his or her parent by hitting that person.  The author does not define what constitutes disgracing a parent, and does not clarify if this extension is d’oraita or d’rabanan.

At the end of this essay the author discusses cases where someone might think this prohibition does not apply.  We saw some of these cases when we discussed forbidden sexual activity, but some of these cases are new to us.

1. The author says this mitzvah applies to people of indeterminate gender:  tumtum, a person with no characteristics specific to either gender, and androgynous, a person with characteristics specific to both genders.  Since both men and women are forbidden to curse their parents, people of ambiguous gender are also forbidden to curse their parents.

2.  The author introduces the case of shtuki, a child whose mother is identified but whose father is not identified.  A shtuki is forbidden to curse his or her mother, but we cannot identify the father to whom the prohibition would apply since the shtuki does not know who his or her father is. 

3. A mamzer is a child of a sexual relationship that is forbidden by a mitzvah punishable by death or karet.  The mamzer child has very severe restrictions on marriage partners, so the mamzer has lots of reasons to be angry at his or her parents.  Nevertheless the mamzer is prohibited from cursing a parent.  This result is consistent with several other mitzvot where a mamzer has the same halachic relationship with his or her parents as anyone else.  For example, the mamzer child inherits from parents and has an obligation to mourn the death of parents.

4. This mitzvah applies to Jewish children, not non-Jewish children, so the child of a Jewish man and a non-Jewish woman or a shifchah has not prohibition on cursing parents.

5.  We saw earlier that when someone who converts to Judaism, halachah does not recognize the convert’s biological relatives.  Thus, a convert should not be forbidden to curse his or her biological parents.  But the author says that d’rabanan that convert may not curse his or her father, lest the act of conversion permit behavior that is generally considered to be immoral.  I do not know why the author specifies father and does not mention a prohibition on the convert cursing his to her mother. 

6. If a child’s mother converted while she was pregnant, the child is born Jewish.  But since at the time the child was conceived the mother was not Jewish, halachah does not recognize who the father is, so the child is not prohibited from cursing his or her father.  And, since the source verse equally prohibits cursing father and mother, since this child has no prohibition on cursing his or her father, the child also has no prohibition on cursing his or her mother.

7.  Someone who is born as an eved c’na’ani, a non-Jewish slave, is not considered to have specific biological relatives even when we know who the eved’s parents are.  If the eved it freed and becomes a Jew, the former eved still has no biological relatives that are recognized by halachah, so there are no parents to whom this prohibition applies.

 

The source verse for mitzvah #232, Lev. 19:14, tells us not to put an obstacle in the path of a blind person.  The rabbis understand this mitzvah much more broadly.  The midrash halachah, cited by our author, says the mitzvah applies to any kind of obstacle in the path of anyone who is “blind” about any matter.  Thus, we are prohibited from tripping us someone by taking advantage of that person’s lack or understanding or naiveté.  When we are asked to give advice we must give the best advice we can for the person who is asking.  The author specifically warns us to beware of situations where we have some self-interest in a matter about which we are giving advice; we are obligated to advise the person to do what is best for them irrespective of our own interest in the matter at hand.

 The author says the shoresh of this mitzvah is obvious.  Society will function better if, when someone asks for advice, they get honest advice rather than advice tinged with the corruption of self-interest. This turns out to be a very broad mitzvah indeed, and one we constantly have to keep in mind in our day-to-day dealings with others. 

The author gives several examples of ways to violate this mitzvah.

  1. Giving advice in our own self-interests.  Someone who needs to raise some money asks us whether to sell a field or a donkey.  If we advise selling the field, and that advice is influenced by our desire to buy that field, we violate this mitzvah.  Although the author tells us what not to do, he does not tell us what we ought to do.
  2. Enabling someone to commit a sin.  This not only aids the current sin but also encourages the person to sin in the future.  For example, Jews are prohibited from lending money at interest to other Jews and from borrowing at interest from other Jews.  If one Jew lends money to another Jew at interest, they have both violated this mitzvah as well.  The lender enables the borrower to borrow at interest, and the borrower enables the lender to lend at interest.  The author gives another example: we are forbidden to provide wine to a nazir.
  3. The extension of this mitzvah to enabling goes further.  The author says we are forbidden to sell non-Jews weapons or other objects that can cause widespread harm, or to sell those things to Jews who will sell them to non-Jews, or to sell those things to Jewish robbers.  However, we may arm non-Jews who will help defend Jews.  Apparently our author would reject arguments of the form, “Guns don’t kill; people kill.”  To some extent we are responsible for the likely consequences of our actions even if we do not actually create the bad results directly and even if someone else’s actions intervene.

But this last example has its limits. If our behavior is far enough removed from the expected bad outcome, we are not responsible for that outcome and our proposed behavior is permitted.  Quoting the Gemara in Avodah Zarah, the author cites the classic halachic language:  “We are careful about ‘before,’ but we are not careful about ‘before before.’” 

The Mishnah (Avodah Zarah 1:1) says we are forbidden to sell things to idol worshippers for the three days before their holidays, to lend things to idol worshippers during those three days, to pay a debt to an idol worshipper or to lend the idol worshipper money during those three days.  The author suggests two possible reasons for the Mishnah’s rule: 1. that the idol worshippers will be glad about the transaction and thank their idol for their good luck, or 2.  that we are “putting a stumbling block before the blind” by providing the idol worshippers with what they need to prepare for their upcoming holiday.  The second reason can explain the case where a Jew sells an idol worshipper something suitable to be offered up to the idol.  That would be enabling the idol worshipper to complete the ceremony of worshipping the idol, and since the idol worshipper is prohibited from worshipping the idol, the Jew has put a stumbling block before the blind.  Other cases can only be explained by the first reason, that the idol worshipper will thank the idol for good fortune in getting the loan of goods or money, etc.  Consider a case where a Jew provides the idol worshipper with money by repaying a loan or lending money to the idol worshipper, and then the idol worshipper uses that money to buy something to sacrifice to the idol.  That might seem like putting a stumbling block before the idol worshipper, but the author explains it is not.  The act of providing the idol worshipper with money is too far removed from the actual idol worship.  This is a case of “before, before.”  It is two steps removed from the idol worship itself, so the Jew’s act does not violate this mitzvah.

 

Mitzvah #236 prohibits talebearing and gossip.  The source verse for mitzvah #236, Lev. 19:16, says, “Do go as a rachil among your people.”  The word “rachil” is unusual, and the author gives two explanations from the midrash halachah:  first, being “rach,” soft to one person while being hard to another; and second, being a peddler, “rochel,” loading up with words and peddling them.  The prime case of a violation of this mitzvah involves listening to one person speaking ill of someone, and then going and telling the person spoken about what the speaker said.  This behavior, says the author, causes quarrels and contention, and violates the good peace God wants for the people He created. 

But the prohibition is much broader than that prime case.  It prohibits talebearing when the content is false, r’chilut, and talebearing when the content is true, “l’shon hara.”  It covers any statement that might cause the hearer pain.  The author gives an example of a person whose relative has been executed by hanging.  We are told not mention hanging to that person in a completely different context, for example by saying “hang the fish.”  But it is the thought behind what we say and its likely effect that matters, not necessarily the actual words uttered.  So if one person tells another something bad about a third person, and the hearer tells the third person what was said, if the hearer acts to avoid injury or to stop a quarrel, that is permitted.  On the other hand, sometimes we can say something that is complimentary about a person.  That is still forbidden if we say it to someone we know dislikes the person being complimented, so that the hearer is likely to respond by criticizing the person being discussed.  (Try praising President Obama to Republicans or praising President G. W. Bush to Democrats.)

The author emphasizes how important this mitzvah is.  He says the rabbis admonished us to be careful about what we say about others many times.  They warned that this type of conversation is bad for the speaker, the person being spoken about and for the listener, but it is worst for the listener.  Someone who breaks this mitzvah is not punishable because there was only speech and no action.  But the author warns God has many ways to inflict punishment aside from the whipping given by the court.

And then the author goes off on an adventure.  He tells stories of thieves, outlaws, spies, and snitches.  He promises to explain how small, seemingly innocent statements might lead to a death penalty.  He tells his son there is more of this adventure to be found in the pages of the Talmud.  He challenges his son to go find it.  We can almost see the author’s son sitting up and taking notice.  This always strikes me as a wonderful moment in the author’s developing pedagogy, and in his relationship with his son.

Now back to the content.  The author deals with cases where a Jew gives crucial information to bad guys, for example where one person facilitates thieves stealing someone else’s things or where a Jew informs the government about bad actions of other Jews.  One person says something that turns out to be detrimental to someone else, and that is how these cases connect to the mitzvah at hand.

Halachah assumes that if robbers have access to someone’s valuable property, the property is as good as gone.  The author discusses situations where one person shows the robbers where to find another person’s property.  First is the standard case.  Robbers arrive at someone’s house.  The homeowner is not home, but someone else is home.  That visitor shows the robbers where to find the homeowner’s loot and the robbers make off with it.    Of course, the robbers are really the ones responsible to pay the homeowner, but the robbers are long gone.  The question is whether the homeowner bears the loss or the visitor bears the loss. The answer is that the visitor is responsible to compensate the homeowner.  The reason is basic tort law.  The visitor did something that caused predictable harm to the homeowner and must pay up.

But once the robbers show up, the visitor may not be acting voluntarily.  Rather, the visitor may be exposing the homeowner’s loot because the visitor is afraid of the robbers.  If the robbers threaten physical harm to the visitor and the visitor shows the robbers where to find the loot, the visitor is not required to bear the loss and does not have to pay the homeowner.  The author cites an opinion that even if the robbers threaten harm to the visitor’s property and the visitor then shows the robbers where to find the loot, the homeowner bears the loss and the visitor does not.  The author does not explain what happens if the robbers don’t actually express a threat but the visitor is afraid anyway just because the visitor is dealing with thugs. 

In the cases we have had so far, the visitor only shows the robbers where the homeowner’s loot is.  Next the author considers a related case.  The robbers come and tell the visitor to get them the homeowner’s loot, and the visitor complies.  The visitor actually takes the loot and gives it to the robbers.  In that case, the visitor bears the loss and has to compensate the homeowner even if the robbers threatened the visitor.  Here, the visitor did more than just make the loot available to the robbers; the visitor actually gave it to the robbers and thus has greater responsibility. 

That outcome seems to contradict a general principle that if someone’s life is in danger the person may violate most mitzvot to save his or her life.  But we need to distinguish between saving life and paying for the damage ensuing from that choice.  Here, if the visitor’s life was in danger, the visitor did the right thing by handing the loot to the robbers.  The visitor should not have put his or her life in danger by refusing.  But that does not answer the question of who makes good the loss.  As between the homeowner and the visitor, if the visitor handed over the homeowner’s loot to robbers, the visitor pays the homeowner.  That is parallel to another case.  One person is chasing another person to do that person harm.  In running away to avoid being hurt, the person being chased damages someone’s property.  The person being chased is doing the right thing by trying to get away from the pursuer, but the person being chased still has to compensate for the property he or she broke while running away.

We can construct a case where both of the scenarios we have discussed so far apply and suggest conflicting results.  The robbers arrive and compel the visitor to tell them where the homeowner’s loot is hidden.  The robbers then tell the visitor to go get the loot and load it into their get away car.  The visitor is being compelled to show the robbers where the loot is, so the visitor ought not to pay the homeowner.  But the visitor physically gave the loot to the robbers, so the visitor should pay the homeowner.  The author explains that once the robbers know where the loot is, the loot is as good as gone, and the fact that the visitor then loads the loot into the get away car really has no effect on the outcome.  Therefore the visitor is not liable to compensate the homeowner.

All of these cases arise when the visitor has to react to an unexpected situation.  But what if we know beforehand that someone plans to inform bad guys about someone else’s property?  The author paraphrases a dramatic story that appears in the Gemara, Bava Kamma 117a.  Someone came to Rav to ask if he was allowed to reveal someone else’s hidden straw.  Apparently he was not under threat.  Rav told him not to tell, but the questioner did not listen.  When that became clear, Rav’s student, Rav Kahana, killed the questioner.  Rav did not tell Rav Kahana he had done anything wrong.  Instead, Rav told Rav Kahana they might be in trouble with the local government for a death that took place in their court. 

This story implies that the questioner deserved to be killed.  He had been warned, albeit without the usual formal warning.  He has not accepted the warning, but our author says he should be killed even without that.  Apparently Rav Kahana was justified in stopping him even by killing him.  We do not know from the story who the questioner planned to tell about the straw or why the listener would find that information important. 

From here, the author discusses cases where the informer is called a “moser.”  That typically describes a Jew who tells the government about misbehavior by other Jews or about another Jew who is hiding property the government would want to know about, presumably to confiscate it or tax it.  The government is analogous to the robbers in our prior stories. Just as robbers steal stuff and hurt people for no good reason, the government does, too.  Even worse, if some Jews are behaving badly according to the government, the government might take that out on the Jewish community as a whole.  (These assumptions about how governments behave are certainly accurate as to some governments, and not accurate as to others.  Whether these and other related halachot apply to governments that generally behave fairly toward citizens requires further analysis.)

In those cases, where we suspect someone is about to become a moser, we warn that person not to proceed.  If the person does proceed, we kill the person at the first opportunity.  That way, we protect the rest of the community from the retribution the government might inflict. Once the moser has delivered the report to the government, though, we may not kill the moser, since whatever harm we were trying to prevent can no longer be prevented.   If someone has a pattern of behaving as a moser, he should be killed by anyone who has the opportunity even without a warning.  This prevents the moser from causing even more trouble.

The author says that, in the story of Rav Kahana, Rav Kahana killed the potential informer even though the informer did not accept the warning.  Therefore, according to the author, in cases parallel to that one the informer may be killed if the informer was warned but did not accept the warning.  The author then quotes Rambam, who seems to have a different opinion.  Rambam apparently thinks that for an informer who is not an established moser, the informer must be warned and accept the warning before we kill the informer.  But apparently Rambam does not think an established moser needs to accept a warning, or even to get a warning at all.

A moser who informs about someone the moser thinks has caused him trouble of some sort is still subject to being killed.  But when the community acts as a whole in its own self-defense, the case is different.  The community can choose to handle someone causing trouble for the community by handing that person over to the government, even if the government may not be entirely fair to that person.

This series of rules has a Wild West “take the law into your own hands” tone.  But the problems involved were real during many periods of Jewish history.  The Encyclopedia Judaica article on “Informers” gives several historical examples.  It could be that our author and his son were aware of these issues in their day-to-day lives.  

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