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Class Notes - Class #25

Mitzvah #337 prohibited oppressing someone in a sales transaction through inappropriate pricing.  Mitzvah #338 prohibits oppressing someone by what we say.

               This mitzvah is very broad and covers a myriad of situations.  The author cites earlier halachic literature for specific examples.  We may not remind someone who is now behaving well of his or her prior bad behavior.  If someone is suffering, we should not imitate Job’s friends and tell the person the suffering is probably his or her own fault.  We should not misdirect someone seeking to buy something to a merchant we know does not have the goods.  And we should not ask for the price of an item we have no intention of buying, arousing in the seller a vain hope of a sale.

               But these are just examples.  This mitzvah prohibits our saying anything hurtful to or about another Jew.  The world is a better place if people are at peace with each other, and that is more likely if we all refrain from saying hurtful things. Also the author suggests that people who do not say hurtful things about others are less likely to have hurtful things said about them.

The rabbis found many ways of reminding us of the harm we can do by speaking hurtfully because they considered this mitzvah so important.  The rabbis thought many people find hurtful words more harmful than hurtful behavior involving property.  The source verse for the prior mitzvah prohibits oppressing others in sales transactions.  The source verse for this mitzvah prohibits oppressing others with words, and in that context the verse adds that we should fear God.  The prohibition on hurting others by what we say applies in every interaction we have, day in and day out.  We need imagine how other will react to something we say, so we must think carefully about each and every thing we say to make sure what we say is not unnecessarily hurtful.  Violation of this mitzvah is not punishable because it involves only speech, but the author warns us that God has His ways of inflicting punishment aside from punishment by a human court. 

               The author mentions that this mitzvah applies to interactions we have with our families.  People often feel comfortable saying whatever comes into their heads to family members rather than thinking carefully about whether what they say is hurtful.  Parents often reprimand children in an attempt to make sure their children learn to behave properly and morally.  The author cautions us that the mitzvah not to say hurtful things applies when we speak to our family members.  We need to reprimand children without inflicting unnecessary pain.  That may sound like leniency, but the author says it will result in a life of blessing and honor.

               Our author chooses to discuss how this mitzvah applies to the way parents relate to their children in the context of a book he is writing for his son.  Indeed, this book was an attempt to correct his son’s wayward behavior, hanging out with the “wrong crowd” and headed for trouble.  Much earlier we saw how angry our author was at his son, but we have seen their relationship improve since then.  We might speculate that the author’s assertion that parents should avoid hurtful words when reprimanding children is a sort of apology.

               This mitzvah would prohibit our saying hurtful things even when we respond to hurtful things said by others. The author rejects the notion that the hurt person must just let the hurt pass without responding.  Just as we should defend ourselves from physical attach we may also defend ourselves from verbal attach.  It is almost impossible for people to allow themselves to be insulted without responding. And when the first speaker publically accuses someone of bad behavior, if the accused person does not respond that is tantamount to admitting the truth of the accusation.  But the person who responds to an insult must do so carefully, with as much dignity and pleasantness as possible.  If others are listening the responding person should excuse himself.  And the author notes there are some who choose not to respond to insults, lest they become overwhelmed with anger and end up saying inappropriate things.  It seems the author sees that as a goal more people might strive for.

 

Mitzvah #342 brings us to an aspect of land allocation in Israel that we have not met before.  We noted when we discussed yovel that Joshua distributed land in Israel to each of the tribes.  The tribe of Levi did not get a large allocation of contiguous land like the other tribes.  Rather, Levi got 48 cities scattered through the land, carved out of the land allocated to the other tribes.  As we will see later in our study, six of those cities were designated “cities of refuge.”  Each of those cities had a particular zoning plan, and mitzvah #342 prohibits changing that zoning plan.

               The cities of the levi’im were structured in concentric circles.  In the middle was the built up urban area, containing houses, shops, bath houses, and other buildings.  That was surrounded by a greenbelt of open area, essentially park land.  Around that was land allocated to farms and vineyards.  And beyond that there was an area designated as the cemetery.  Within that boundary the original owners of land can redeem sold land at any time.

               According to our author, this land use design was dictated by the Torah so that the cities of the levi’im would be beautiful, respected and admired by all.  The levi’im were charged with a special focus on serving God.  They did not get regular agricultural land, like the members of other tribes.  They were partially supported by the rest of the people so that they could devote time to community spiritual needs.  Housing the levi’im in beautiful, well planned cities would help enhance their status, and help the other Jews respect the special role of the levi’im.

               The author quotes Rambam, who explains that the role of the levi’im in ancient Israel is parallel to the role of Jewish spiritual leaders in other societies.  Those who devote themselves to teaching Torah and to serving God stand in for the levi’im.

               This mitzvah prohibits anyone from varying from the zoning plan of the cities of the levi’im.  The follow up question is obvious:  how much of a change counts as a violation?  May one build any kind of structure in the agricultural zone?  May one clear any land in the urban center?  The author says he does not know how much of a change counts.  But he charges his son to “become wise and find the answer.”  We see the author’s pedagogy take another step.  Here, he asks his son to imagine himself mastering topics that the author has not mastered.  The author sets a lofty goal for his son, without minimizing the amount of dedication and work it will take to reach that goal.  And the author is not afraid of a student who might outshine him.  Rather, he relishes that possibility.

 

Mitzvah #343 prohibits a Jewish lender from lending to another Jew at interest. The source verse specifies lending money or produce at interest.  Later we will see a mitzvah that prohibits the borrower from borrowing at interest, and earlier in our study we saw mitzvah #68, which prohibits facilitating loans at interest by serving as scribes, witnesses or guarantors.  When an individual Jew loans something to another Jew, the borrower should pay back exactly what he or she borrowed, no more and no less.

               The Torah mention prohibitions on lending at interest in three different passages, and the source verse for this mitzvah mentions lending money at interest, “neshech,” and lending food for extra payment, “ribit.”  The two formulations in the verse delineate the same prohibition in two different circumstances.  This is another example of the Torah emphasizing a prohibition by repeating it.  As the author mentioned earlier, the Torah repeats things that are very important. Logically we should all pay careful attention to what the Torah tells us to do.  But God is generous by nagging us not to do things it is really important that we avoid.

               In mitzvah #68 the author explained that it is hard for people to realize how burdensome paying interest will be.  Loans at interest are common now.  We all have car loans, mortgages, credit cards.  But even now it is easy for people to become overwhelmed with debt because they do not fully understand how much interest they will have to pay when they borrow.  That led the rabbis to extend the Biblical prohibitions on lending at interest.  But they had to be careful not to put too great a burden on ordinary business transactions.

               There are three levels of prohibition on lending at interest.  D’oraita a lender may not require the borrower to pay “fixed, specific interest,” any loan payment where the lender will certainly end up with more at the end of the transaction than at the beginning.  Consider a loan where the borrower borrows $100 for a year and pays back $110.  A loan where, at the end of the term of the loan, the borrower pays back more than he or she borrowed violates this mitzvah. Consider a loan where the borrower borrows $100, pays back $100 at the end of the term, and also pays $1 a week.  A loan where, at the end of the term of the loan, the borrower pays back the face value of the loan but where the borrower has paid a fee during the term of the loan violates this mitzvah.  But the Torah prohibition applies to more complex transactions.  If the buyer pays back the face value of the loan, but during the term of the loan puts up as collateral something that produces income and the lender gets the income, that loan violates this mitzvah.  For example, a loan violates this mitzvah if the buyer puts up a rented apartment as collateral and the lender gets the rent during the term of the loan.  If the lender took interest d’oraita, the borrower can sue to get the interest back.  The author describes a disagreement about whether when the court awards the interest to the borrower the court actually goes and seizes the interest as it would in cases of theft, or whether the court pressures the lender to pay up but does not actually seize what the lender owes the borrower.

               Rivit d’rabanan is also called “avak ribit,” “the dust of ribit.”  Because the Torah emphasizes prohibitions on lending at interest and because people can be easily hurt in these transactions, the rabbis prohibited anything that could be construed as interest.  In those cases the court will not require the lender to return the interest to the borrower, but the court will not interfere if the borrower recovers it on the borrower’s own initiative.  The author gives several complex examples.

               Consider a case where someone takes some item from its owner.  The person taking the item can make money from that item.  The person taking the item pays the owner for use of the item, either by paying a fixed fee or by paying a portion of the profits.  But the person who took the item guarantees to return the item in exactly the same condition as it was when the exchange took place.  The item is called “tson barzel,”  “iron sheep,” because from the point of view of its owner it is indestructible.  For example, someone pays for the use of a neighbor’s sheep, intending to shear the sheep and sell the wool.  The owner of the sheep gets paid, and the person taking the sheep promises to return the sheep in exactly the condition the sheep was in when the person took possession of it.  The person who took the sheep can benefit by selling the wool, but if anything bad happens to the sheep, the user of the sheep bears the loss.  That sheep is an “iron sheep, “tson barzel;” from the point of view of the owner of the sheep the sheep is indestructible because the person taking the sheep is absolutely obligated to cover the loss if any harm comes to the sheep.  That transaction might be considered a rental.  The owner rents the sheep to a lessee, who can use the sheep but is responsible for any damage that comes to the sheep.  But that transaction can also be considered a loan at interest.  The owner lends the sheep to the borrower.  The borrower may use the sheep without hurting it and ultimately has to return the sheep to its owner.  But the borrower also pays to use the sheep so the owner gets back more than what the owner lent out.  Whether this is a loan at interest depends on how you look at it.  Therefore the rabbis prohibited such a transaction between two Jews.

               The rabbis prohibited selling futures on produce before the crop has an established fair market value if the seller does not have any of the produce.  A lender lends the buyer money and the buyer promises to repay the loan with a fixed amount of produce when the produce is harvested.  That transaction is fine if it takes place after the fair market value of that type of produce has been determined.  Even if the borrower has no produce with which to repay the loan, the borrower can buy some, and at least the borrower knows how much produce to pledge.  If the transaction takes place earlier, the produce the borrower pledges may turn out to be worth more than the value of the loan and that would be prohibited d’rabanan.  But if the borrower already has some of that type of produce, the transaction is fine.

Farmers often have to borrow at planting time to be able to get the seed and other supplies needed for planting.  Typically those loans come due at harvest time when the farmer has a way to repay the loan.  It can be easy for the lender to take advantage of the farmer’s vulnerable position.  But if that loan transaction is prohibited entirely the farmer is in worse trouble, unable to borrow what is needed to plant the next crop.  Our author points out that the rabbis prohibited many transactions because they smacked of loans at interest, but they had to be careful not to put undue burdens on normal commercial transactions. 

The rabbis were also concerned where loans provide for the borrower to pay a penalty if the borrower defaults on the loan.  For example, the rabbis forbade putting land up as collateral for a loan so that the lender would get the land if the borrower failed to repay the loan.  When people take a loan, they usually imagine they can repay the loan and they assume they will not suffer the dire consequences that would ensue if they defaulted.  The ongoing mortgage default crisis certainly fits that model. 

Of course, all contracts are exchanges, where one party promises something in exchange for what the other party promises.  It is difficult to determine when a transaction is an ordinary exchange and when the transaction creates an inappropriate penalty.  But the author says the distinction between exchange and penalty if fundamental in many halachic issues.

Informal interactions between lender and borrower can also violate rabbinic extensions on lending at interest.  The rabbis forbade someone from sending a gift to a potential lender before asking for the loan in the hope of garnering the lender’s favor.  The rabbis forbade a borrower who has properly repaid an interest free loan from sending a lender a thank you gift.  That thank you gift is even prohibited if it is intended to compensate the lender for the profit the lender could have made had the lender invested the money rather than loaning it interest free.

The author reinforces the distinction between Torah and rabbinic prohibitions by playing out examples.  A borrower wants to take a loan and gives the lender custody of land during the term of the loan.  As we said earlier, if the real estate readily produces income and that income goes to the lender, the loan is prohibited d’oraita.  If the collateral is a rented apartment, and the lender gets the rent during the course of the loan as well as getting the entire loan amount from the borrower at the end of the loan, the lender ends up with more than the lender had at the outset.  If the amount the borrower has to repay is reduced by the amount of income the lender gets from the property, the transaction is prohibited d’rabanan according to some authorities and is just fine according to other authorities.  Consider a case where the property might produce income or might not produce income, for example a field or vineyard.  In any given year, it might produce a crop or it might not.  If when the borrower repays the loan the lender also gets to keep any income the property produced, that loan is prohibited d’rabanan.  If the amount the borrower has to repay is adjusted based on how much income the property produced, some authorities say the loan is prohibited d’rabanan but some authorities permit the loan.   Now consider a case where the lender provides money to a borrower in return for the right to use and get profit from land for a term of years.  That is a lease; it is not a loan transaction at all.

               Third, the rabbis prohibited transactions which do not include any kind of interest but where a conniving person could manipulate the transaction into a loan at interest.  If the parties to a loan violate these rabbinic prohibitions, the borrower has no remedy since the transaction itself was legitimate and both parties agreed to it. The author warns us to stay away from such transactions, since those who take illicit profit are likely to end up impoverished.

               The author gives two examples of these transactions.  Consider a case where a borrower wants to borrow $100.  The lender has no cash, but lends the borrower goods worth $100. But the borrower is under time pressure and rather than going to the market to sell the item at full price, the borrower sells it to the lender at a discount.  When the borrower repays the loan, the lender ends up with more than the lender started with.  That was not the result of the loan transaction.  But the rabbis forbade it anyway.  Similarly, if someone put land up as collateral on a loan, the lender should not rent the land back to the borrower.  Even though there are two separate transactions, the lender still ends up with more than the lender started with.

               But there are similar transactions that the rabbis did not prohibit because they did not anticipate those transactions leading to loans at interest.  For example, the owner of a debt can sell the debt to someone else at a discount. 

 

Mitzvah #349 brings us back to prohibitions related to idol worship.  It prohibits prostrating oneself on a carved stone or hewn stone carefully smoothed. 

               The author explains Rambam’s opinion that some idol worshippers would carve or polish stones, place them before the idol and bow on them.  In that context, this is another mitzvah prohibiting practices that were part of idolatrous practice.   Or maybe by prostrating on such a stone we look like we are worshipping the stone itself. 

               The prohibition does not apply to a prayer rug, even a beautifully decorated one. No one would worship an object that deteriorates, like a rug, whereas people do worship idols made of stone.  One may prostrate on a rug placed over carved stone.

               Bowing prostrate in the Temple would seem to violate this mitzvah, but the author says that is a permitted exception.  No one would suspect that someone in the Temple would be worshipping and idol rather than God.  That exception fits well with the shoresh the author explained that this prohibition prohibits from doing anything that might make people suspect we are worshipping idols.  It does not fit well with Rambam’s opinion that the idea of this mitzvah is that we should avoid any practices that are used in idol worship, such practices should be prohibited especially in the Temple.  The author finds this discrepancy difficult; he clearly thinks Rambam misunderstood this mitzvah.  But the author expresses his disagreement with utmost respect.  He says Rambam must have had a good reason, and if we fail to understand, that is probably our failure.

               The author also explains exactly what actions are prohibited and punishable.  For someone who is actually worshipping an idol, the person is subject to the death penalty as soon as his or her face touches the ground.  If someone bows prostrate on a carved stone, the person is punishable by malkot if the person’s hand and feel are spread out on the ground.  If someone bows prostrate without spreading hand and feet, the person is subject to makat mardut rather than malkot, so apparently the person has violated a rabbinic but not a Torah prohibition.

                

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