Volume 37 Number 82
Produced: Wed Dec 4 5:48:25 US/Eastern 2002
Subjects Discussed In This Issue:
Circumventing Prohibition Of Charging Interest.
[Zev Sero]
Latitude 'Allowed' in Originating New Drash
[mashbaum]
Laundry and Marit Eiyin
[Rabbi Y. H. Henkin]
Legal fiction, Sale of Chometz
[Yehuda Landy]
Shaking hands
[Yehonatan and Randy Chipman]
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From: Zev Sero <zev.sero@...>
Date: Thu, 7 Nov 2002 19:43:51 -0500
Subject: Re: Circumventing Prohibition Of Charging Interest.
Immanuel Burton <IBURTON@...>
> Someone comes to me and wants to borrow 1000 pounds. I sell him my
> car for 1500 pounds, but he doesn't have to pay me for 12 months. At
> this point the car becomes his. He then sells the car back to me for
> 1000 pounds, this amount being payable immediately. I give him the
> 1000 pounds, and take the car back. In 12 months time payment for the
> first sale becomes due, and he has to give me 1500 pounds.
>
> In essence, no loan has been provided, but two sales have been carried
> out.
>
> Leaving aside the Halachic prohibition of over-charging, does this
> method circumvent the Halachic prohibition of charging interest?
The halacha is that it is OK to give a discount for early payment, but
not to charge extra for late payment. So this scheme, as presented,
would work fine if the standard terms for the sale of cars were that
payment is due a year after the sale. Unfortunately, that is not the
case. Of course, there's nothing *wrong* with giving someone extra time
to pay, but you can't charge them extra because of that.
Now, if used cars had a fixed and known price, there would be no getting
around this. But in fact everybody knows that the price of used cars is
highly negotiable, and there is nothing unusual in identical cars
changing hands for amounts that are 20% or 30% apart. Still, for the
exchange to happen as described above seems too blatant to be allowed.
A much simpler scheme, however, works as follows: Find a third party,
let's call him Levi, and have him and your friend Shimon write postdated
cheques to each other for L1500; nothing wrong with that, it's a wash.
You then approach Shimon and buy Levi's cheque from him for L1000 cash;
this is a normal transaction - there are professionals who make their
living buying other people's notes at a discount, and then collecting
the full amount when it falls due, and the halacha allows giving a
discount for early payment of a debt. At this point, you hold Levi's
cheque, and Levi holds Shimon's; both cheques have the same date and are
for the same amount. You approach Levi, and swap cheques - you give him
his own cheque, and he gives you Shimon's; once again, it's a wash, so
there can be nothing wrong with it. Levi tears up his cheque and goes
his merry way, while you hold Shimon's cheque for a year and then
deposit it. (PS: If your name happens to be Reuven then this works out
really well.)
Zev Sero
<zsero@...>
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From: mashbaum <smash52@...>
Date: Tue, 05 Nov 2002 22:27:29 +0200
Subject: Re: Latitude 'Allowed' in Originating New Drash
<DTnLA@...> (Dov Teichman) wrote:
> In his introduction to chumash, the Ohr HaChaim Hakodosh, writes that he
> has many innovative approaches to explaining the Torah, and he is not
> chas veshalom arguing with the Rishonim who preceded him, but rather one
> may innovate new interpretations as long as it does not contradict
> halacha, and it falls within acceptable norms.
The Maharshal, (Chochmat Shlomo) to Sanhedrin 52b takes this much
further. He interprets the mishna in San. 52a in a way completely
divergent from the way the gemara there does, and says explicitly that
as long as there is no halachic difference between the interpretations,
he is free to offer an explanation which differs from that of the
gemara.
Saul Mashbaum
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From: Rabbi Y. H. Henkin <henkin@...>
Date: Sat, 9 Nov 2002 19:15:03 +0200
Subject: Laundry and Marit Eiyin
Shalom,
There were numerous submissions based on the supposed isur of
taking dried clothes out of a dryer on Shabbat, marit eiyin lest people
think the clothes were washed or dried on Shabbat .
It was a remarkable discussion, because no one thought to question
whether in fact there is any such halacha.
It is forbidden to hang clothes on a line on Shabbat, lest people
think they were washed that same day. But it is permitted to remove
clothes from a clothes-line, as long as they were already dry before
Shabbat entered and are therefore not muktza. See Orach Chayim 301:45 and
in Mishnah Berurah, Shemirat Shabbat Kehilchatah 15:17, etc. The same
applies to removing clothes from a drier, assuming there is no electrical
circuit broken in opening the door.
Also, putting soiled clothes directly into the washing machine on
Shabbat is no indication that one will wash them on Shabbat, and no
marit ayin.
With Torah blessings,
Rabbi Yehuda Henkin
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From: <nzion@...> (Yehuda Landy)
Date: Sat, 9 Nov 2002 19:10:03 +0200
Subject: Re: Legal fiction, Sale of Chometz
From: Ira L. Jacobson <laser@...>
> I wonder how it is possible to get rid of the hametz balu`a, absorbed in
> the dishes, pots and pans and so forth without selling the hametz. If
> one does not get rid of these, then he has not solved the problem of
> owning hametz on Pessah, it seems to me. Can anyone comment?
This is a common mistake. The Halacha does not require biur on the
chometz absorbed in the utensils. The Shulchan Oruch 551:1 requires
scrubbing the pots clean of any visible chometz and hiding them for the
duration of Pesach.
> Our LORs remind us every year that one must regard the hametz contract
> as legally binding in order to have it considered that we did not own
> hametz on Pessah.
I would like to add to this discussion that in recent years Rav Elyashiv
shlit"a conferred with legal experts and rewrote the mechirat chometz
contract in such a way that it is clearly legally binding. This was
mainly meant for non-religious storekeepers or businessmen. I'll sum
briefly sum up the main points;
a) This contract is not just a religious matter but a legally
binding contract
b) In the event that I claim that I signed this contract merely
for a Jewish ritual and not intended to be legally binding I
will be subject to a 100,000 shekel fine.
c) The sole jurisdiction for settling any matters regarding this
contract is the Rabbanut Beis Din of Yerushalayim.
I would also like to point out that the entire attitude of the
storekeepers changed when they saw this contract. Many of them hesitated
and first consulted their legal experts before agreeing to sign.
Yehuda Landy
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From: Yehonatan and Randy Chipman <yonarand@...>
Date: Thu, 07 Nov 2002 15:26:23 +0200
Subject: Re: Shaking hands
I'd like to comment about the halakhic question of men and women
shaking hands, which I feel is a bit of a myth in the Orthodox
community. From everything I know of the sources, nowhere is there
a specific category known as "issur negi'ah," as people seem to think
nowadays.
Before presenting my arguments "legufo shel inyan," I would like to
make clear that, for those who nevertheless are makpid, the discussion
about Randy Cohen and how to deal the issue in terms of public policy is
an important one, and I respect those seeking an elegant way out. I
think that what I say below should provide more than enough ground for
shaking hands in a business situation.
By the way, I think that the solution of saying that one doesn't
shake hands with anyone, either men or women, is bad, for at least two
reasons: 1) Because it's not true. Social worlds are not so
hermetucally sealed taht word won't get out sooner or later that one
does shake hands, e.g., in shul or at a wedding; 2) if it is accepted
at face value, it may make one seem even weirder than if you say you
don't shake hands with the opposite sex -- and end up worse in terms of
business / professioanl reputation.
First, I would like to report what I consider an important
"maaseh rav."
Like Yaakov Fogelman, I have also witnessed Rav Soloveitchik,
ztz"l, shaking hands with girls and women. One case in point I
specifically remember was high school graduation ceremony for the
Maimonides School in Brookline, where I taught in 1974.
The Rav was unquestionably one of the Torah giants of the last
generation, as well as being renowned for his yirat shamayim and great
care in halakhic matters. Thus, if he behaved in a certain manner, we
must be assume that his behavior was correct, and try to understand his
reasoning, rather than to dismiss it out of hand, as we might in the
case of a lesser person. This is in fact the principle invoked in
numerous places in the Talmud known as "Maaseh Rav": i.e., when one of
the tannaim or amoraim is reported to have behaved in a certain way, his
actions are taken as a model from which one may learn halakhot
(sometimes even many halakhot).
Unfortunately, I never heard the Rav speak explicitly about this
specific subject; hence, I cannot state what his sources or reasoning
were. I can only try to reconstruct his reasoning, by way of
conjecture.
The Rambam in Hilkhot Issurei Biah 21:1 states:
"Anyone who has relations with one of the forbidden categories of
women (arayot) via one of the limbs, or embraced and kissed in a lustful
manner and derived pleasure from bodily closeness, is subject to malkot
from the Torah. As is said: 'that you may not do any of the customs
[practices] of abomination' [Lev18:30]. And it says 'do not draw near
to uncover their nakedness' [v. 6]. That is , do not draw close to
those things that lead to forbidden intercourse (giluy arayot)."
It seems clear that what is forbidden here is sexually arousing
contact -- whether that which is inherently pleasurable, or that which
leads to actual intercourse-- not "affectionate
touching." The issue is eroticism, not emotion.
In the next halakha, Rambam forbids various forms of flirting that
do not involve physical contact at all-- winking, "hinting," joking, or
even smelling a woman's perfume. These things are of Rabbinic
provenance, given that their punishment is makat mardut.
Further down in the chapter, in halakha 6, Rambam refers to what
might be described as "non-affectionate touching": i.e., hugging or
kissing various family members, to whom there is no erotic attraction
(ein libo nokfo.. she-ein sham ta'avah), and adds that this also
forbidden, and is "an act of foolish people." He does not categorize
the level of this issur, but it seems pretty clear that this too is at
most derabanan.
Similarly, in Sefer ha-Mitzvot, Lavin #353, Rambam lists as a
separate negative commandment, "[The Torah] warns against drawing close
to any of these forbidden women, even without intercourse, such as
embracing and kissing and the like.. [he again quotes here Lev 18:6] as
if to say, do not engage in any closeness that may lead to forbidden
intercourse..." [The rest of this rather lengthy paragraph explains the
mechanics by which this rule is derived from various verses, and does
not augment the definition of the forbidden act.]
In brief, the Rambam consistently defines this lav in termsof
"things leading to intercorse" or "closeness from which one derives
pleasure"-- that is, explicitly sexual acts or overtures.
As for the Ramban: in his Hasagot to Rambam's Sefer ha-Mitzvot,
he questions Rambam's inclusion of this entire
category within the list of the 613 mitzvot. According to Ramban,
anything short of full intercourse (presumably even bi'at eiverim!) is
not forbidden by the Torah, but is Rabbinic
I might add that, from what I know of the sources, nowhere is there
a specific category known as "issur negi'ah," as people seem to think
nowadays.
A second basis for the Rav's approach might have been what I would
call a "common sense" approach. That is, an understanding of the
meaning of a given act or gesture-- in this case, a hand-shake-- on the
basis of the context and the common-sense interpretation of its meaning
within a given social setting, etc,
It was this approach that led the authors of the Yeshiva University
Career Planning and Placement Handbook to advise their students that:
"Shaking hands is a customary part of the interview process. All
students halachically can shake hands since this is business protocol,
regardless of the sex of the interviewer. Failure to do so will most
likely have a strong negative effect on the outcome... Most firms
conduct interviews in a closed room. Once an interviewer greets an
applicant, he/she will close the door for privacy and confidentiality;
however, be aware the door is not locked. Again, since this is normal
business etiquette, we have confirmed with halachic authorities at YU
that this is permissible."
In fact, understanding of various acts in terms of their context and
their social meaning is a valid part of the halakhic process, both in
general and in the specific case in point. Thus, the raher strange
story on Ketubot 17a, where Rav Aha used to dance at weddings holding
the bride on his shoulders, because to him "she was like a board of
wood" (i.e., he had no sexual thoughts whatever while holding her).
While I certainly don't advocate imitating Rav Aha in this respect, the
fact that Hazal interpreted acts in their context is quite clear from
this.
Finally, the Shulhan Arukh itself, at Even ha-Ezer 21.5, Hagahot
Ram"a, brings the opinion that certain types of kirvah may be permitted,
providing they're 'leshem shamayim"-- i.e, for pure purposes.
I of course understand why Orthodox educators today stress negiah
as an issur. Depending upon context, the act of touching can be erotic,
stimulating, in itself pleasurable (viz. the Rambam) and suggestive of
and inviting further intimacies-- e.g. a boy and girl holding hands on a
date. But that context is totally different from that of a handshake
used in greeting, as in a business situation or on festive occasions
(e.g., the case mentioned of Rav Soloveitchik). I would even say that a
kiss, in certain situations, can be a form of greeting (e.g., between
family members) --which is why, though Rambam says it is forbidden and
even a stupid thing to do, the kiss of 21.6 is nevertheless different
from that of 21.1.
I fear that Orthodox Jewry may be repeating the mistake of our
Mother Eve...
Rabbi Yehonatan Chipman, Yerushalayim
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End of Volume 37 Issue 82
