Volume 47 Number 84
Produced: Tue May 10 22:38:43 EDT 2005
Subjects Discussed In This Issue:
Administrivia
[Avi Feldblum]
Insurance Query (Car Damage)
[Chana Luntz]
Interesting Letter From MiAvdut LeHerut-Kitniyot Project
[Martin Stern]
Ov horachamim
[Martin Stern]
Shamai vs. Beit Shamai?
[David Curwin]
'Writing' on Shabes
[Noyekh Miller]
Yes, there is a "great divide" in Religious Zionism
[Bruce Abrams]
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From: Avi Feldblum <mljewish@...>
Date: Tue, 10 May 2005 22:17:30 -0400 (EDT)
Subject: Administrivia
Hello All,
Sorry for the delay in getting out any messages for the last few days,
I'm still in a catch up mode from Yom Tov and have just been snowed
under with work etc and have not gotten to my email. Hopefully, I'm in
the process of catching up now, so you should see the issues coming out
again. To those who write and say they cannot keep up with the volume,
you just got your short breather :-) .
Avi
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From: Chana Luntz <chana@...>
Date: Tue, 26 Apr 2005 19:29:18 +0100
Subject: Insurance Query (Car Damage)
While a number of the responses on the insurance query have been very
interesting, on a list set up to discuss Jewish/halachic topics, a
discussion about the ins and outs of American insurance law would seem a
little off topic.
From a Jewish halachic point of view, is not the key thing that Reuven
and the Insurance Company have entered into a contract, under the local
law, and pursuant to dina d'malchusa dina, Reuven is then required to
keep his obligations under that contract? The question then is, what is
it that Reuven is required to do under that contract - and that
presumably will vary from contract to contract (although in some cases
the local government may have stepped in to require what goes in that
contract, but it is still a question of contract).
What various people have alleged are in various insurance contracts does
strike me as very strange - but not having read the contracts I can't
really comment. It is alleged that, for example, certain insurance
companies require you to report all accidents that occur. That does
surprise me, as I would imagine the most common form of small damage
accident is caused by the owner and driver of the vehicle (clipping a
lamp post for example), and I would have thought it very common, and
accepted, that if the owner decides he/she is happy to live with the car
in its damaged form, no claim would be, or would be expected to be,
made. But again, that is dependent on the contract, if the insurance
company requires such accidents to be reported in order to maintain its
insurance, that is what it requires, and you are not keeping your side
of the contract if you do not report such accidents. If on the other
hand it is happy that small damage claims of this nature are not
reported to it, then I am not sure what the difference is if the damage
was caused by Reuven the driver/owner or Shimon some other driver - but
again that would be a matter dependant on the nature of the actual
contract formed. If the insurance company does care, it needs to state
that it cares in the contract - you are only bound to do what it is that
it states you are bound to do in its contract with you.
The fact that this is in no way a halachic discussion (other than one
about fulfilment of obligations under contract due to dina d'malchusa
dina) is obvious from the fact that, absent the contract, the insurance
company clearly has no obligation to pay at all. It certainly did not
cause any of the damage, damage was caused by Shimon in small part, and
Levi in large part, and halachically the question cannot therefore be
about the insurance company at all. The fact that the insurance company
has contractually agreed to pay if either a Shimon or a Levi damages
your car, is a matter of contract (and, assuming no asmachta arguments
can be raised, presumably binding on that basis under halacha but only
to the extent specified in the contract).
If however we do want to ask a question about the halachic law of
damages, while assuming no local law to deal with, the question would
really seem to be about whether in fact Levi is obligated to pay under
halacha for the full fender damage, given that Shimon had damaged the
car before (and the reference to the insurance company is only really a
reference to it standing in the shoes of Levi).
The reason, it seems to me, that these questions do not get discussed
very much, is because the local law tends to govern, and thus the pure
halachic situation tends to be one of theory, rather than practice (as
illustrated by this case, where the claim for damages is likely to be
against the insurance company under the local law of contract). But
since this is a halachic mailing list, I will have a stab at a halachic
analysis.
For this it would seem we first need to assume that the rule found in
Shulchan Aruch Choshen Mishpat siman 379 si'if 12 applies. That siman
specifies that if one is riding on his horse after another and meets the
horse that the other is riding on and strikes the horse he is chayiv
[obligated] to pay whatever damages that Beis din estimates came about
because of the striking (that is, as the meforshim [commentators] make
clear on this si'if, the defendant cannot claim that he is patur
[exempt] because of the fact that they were in reshus harabim [the
public domain], even though there is a general principle that damages in
reshus harabim are patur - but since this principle does not apply to
somebody who runs in reshus harabim, it certainly does not apply to one
who rides in reshus harabim (and hence presumably it does not apply to
one who drives in reshus harabim)).
On the other hand, another aspect of this si'if may well not apply,
given the distinction between horses and cars. The general rule is that
if an animal is killed, or a vessel is broken, the person who does the
damage is only liable to pay the difference between what the object was
worth before the damage and after the damage. So that, for example, if
the ox was worth 200 before it was killed, and its carcass is worth 50,
the person who did the damage (the mazik) is only liable to pay 150 to
the owner of the ox, and is not liable to replace the ox with another
worth 200, and take the carcass (SA Choshen Mishpat siman 403, si'if 1).
The gemora in Baba Kama (15a) does have a hava mina that in fact the
mazik should be liable to replace the ox (because in the case of
somebody who steals something, and then damages it, that person is
liable to provide a replacement), but concludes that this is not the
obligation of a somebody merely liable in torts. So, in our case, if it
is deemed to be analogous, we would not expect the mazik to provide a
new fender, that is the responsibility of the owner of the car, all we
would expect Levi to do is to pay the difference between the value of
the car before he hit it and the value of it after he hit it, and
presumably in assessing that initial value, one would need to take into
account the fact that there was a dented fender due to Shimon's damage.
Thus Reuven would collect from Levi the value of the damage that he did,
and would still need to pursue Shimon for the damage that Shimon did,
and then, using that money, get the car repaired, something that would
be his responsibility, just as it is the responsibility of the dead ox's
owner to go sell the carcass to recover the full value of the ox and
find a replacement.
But this is based on a car falling into the category of a broken vessel
or a killed ox (as set out in SA Choshen Mishpat siman 403) . The
situation with a wounded ox (or horse), seems to be different, because
of the costs of healing the animal, feeding it while it is sick etc.
Hence in the si'if regarding the horse, the language of what is required
to be paid is everything that Beis Din assesses comes as a consequence
of the striking of the horse, which will be more extensive than just the
different between initial value and the final value.
So, is a car more like a vessel or more like a wounded ox? I would have
thought a vessel, hence the conclusion above, but there may be arguments
to the contrary.
Anyhow, that is my best go at a halachic analysis. These aren't simanim
that people seem to look at very often, which is why, I guess, that with
all the discussion about this question, nobody quoted anything from any
of the Torah laws of damages. Hence this is pretty much a discussion
working from first principles, and I would be interested to see if other
people have any other thoughts on the topic.
Moed Tov
Chana Luntz
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From: Martin Stern <md.stern@...>
Date: Fri, 29 Apr 2005 11:55:14 +0100
Subject: Interesting Letter From MiAvdut LeHerut-Kitniyot Project
on 29/4/05 10:57 am, LEMKIN B <docben10@...> wrote:
> Dear Jew of Ashkenazi extraction:
> Do you suffer needlessly on Pesach, unable to eat foods readily consumed
> by your religious Sephardic neighbors & friends? Do you find it absurd
> that they can eat foods comprised of kitniyot and you can not?
> ...
An alternative way to attain unity would be for Sephardim to take on the
stringency of abstaining from kitniot. I am assured by many of my
Sephardi friends who stem from Morocco that their custom is in fact to
avoid rice and dried pulses though they eat fresh peas and beans,
because checking the former against inadvertent admixture of grain is so
difficult to do properly. It is only those so-called Sephardim from the
eastern regions like Iraq who go to the trouble to do so and then eat
them.
In any case, an Ashkenazi would not be prohibited from eating in a
Sephardi household provided kitniot derived foods were not actually
served so the worry that "this [might] reduce your ability to be as
sameach as you could potentially be during the chag" is rather
far-fetched.
Martin Stern
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From: Martin Stern <md.stern@...>
Date: Thu, 28 Apr 2005 17:03:41 +0100
Subject: Ov horachamim
on 28/4/05 11:31 am, Perets Mett <p.mett@...> wrote:
>> instructions given by Artscroll for Av Harachamim?
>>
>> "As a general rule, the memorial prayer is omitted on occasions when
>> Tachanun would not be said on weekdays"
>
> The 'general rule' found in most sidurim nowadays is the widespread,
> but not universal, custom. According to the Polish custom, ov
> horachamim is said only on:
>
> 1 the Shabbos before Shovuos
> 2 the Shabbos before Tisho b'Ov
> 3 after yizkor
This is the West German (Minhag HaRhinus in the Maharil's terminology),
not the East German or Polish, custom, except that the third occasion
does not occur since Yizkor is not said at all and is replaced by a
different custom called Matnat Yad.
I don't think there is any minhag precisely as described by Perets
unless a basically West German congregation has introduced Yizkor in
recent times because of pressure from new members who personally follow
the Eastern rite for many of whom it is the most important part of the
davenning. This misplaced emphasis led to the ludicrous situation where
shuls used fill up for those ten minutes or so and empty out immediately
when those people returned to work, even on Yom Kippur; hopefully this
is no longer so common. Incidentally, Yizkor does not require a minyan
and women with small children would be well advised to say it at home
rather than bring them to shul to disturb everyone else, or run wild
unsupervised outside.
Martin Stern
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From: David Curwin <tobyndave@...>
Date: Fri, 29 Apr 2005 13:52:57 +0300
Subject: Shamai vs. Beit Shamai?
I have recently come across two mishnayot (Maaser Sheni 2:4,9) where
there are opinions given both by Shamai and Beit Shamai, and they would
seem to disagree. Is there an explanation for this?
David Curwin
<tobyndave@...>
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From: Noyekh Miller <nm1921@...>
Date: Wed, 27 Apr 2005 15:21:54 -0400
Subject: 'Writing' on Shabes
I'm trying to remember the name of the ingenious device my friend
Menashe used to use on shabes and yontev 70+ years ago. His father was
the shames of our shul and Menashe's job was to record the various
nedarim (a halbn dollar dem shames, a halbn dollar der shul, etc.) The
device consisted of movable tapes containing the alphabet; these were
then maneuvred so that one letter would appear in a window. Cumbersome
but I guess it worked. I have reason to believe that the shames brought
it with whim from Galitisiye.
So what was it called? Are any such still in use anywhere?
Noyekh Miller
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From: Bruce Abrams <bruce_abrams@...>
Date: Thu, 28 Apr 2005 20:45:38 -0400
Subject: Yes, there is a "great divide" in Religious Zionism
Ben Katz writes of the "non-observant branches of Judaism." I'd like to
clarify that there is no such thing as a "non-observant branch of
Judaism", but rather, that there are non-observant Jews within each
branch. The fact is that the Orthodox, Conservative and Reform branches
all define "observance" differently from one another, ie. Shmirat
Shabbat has a different meaning between the Conservative and Orthodox
definition, but both define Shabbat observance to their respective
adherents.
One of the real issues facing the Conservative movement is the disparity
between the movement's definition of observance, and the de facto
observance (or lack thereof) of the majority of Jews defining themselves
as Conservative.
I think a similar notion exists within Orthodoxy as it relates to
Religious Zionism. There is a fundamental difference as to the
definition of "Religious Zionism"; ie. is Zionism a necessary component
of religious belief and observance, as explained by Rav Kook, zt'l; or
is it a national movement that simply coexists with religious belief and
observance.
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End of Volume 47 Issue 84
