Lesson # 137 (part one) • Lifnim Mishurath HaDin On Yom Yerushalayim, I had the privilege of attending and
speaking at a Special Prayer and Breakfast by sponsored Yisroel Hatzair In
Israel (the Young Israel Council in Israel). The main speaker was the chief
Rabbi of Israel, HaRav Yisroel Meir Lau, Shelita. I had the privilege of
being seated next to him and we discussed two volumes of his responsa that
had been published a few years ago, which I read. I asked him about future
volumes and he told me that a third volume would soon be published. He told
me about one of his essays to be published in this new volume, and it deals
with the Right of First Refusal. Phil Chernofsky was sitting at the next
table and he had brought to the minyan some copies of the Torah Tidbits for
that Shabbat. I showed one to Rabbi Lau and showed him that by coincidence I
was writing a series of lessons on the same topic, Right of First Refusal in
Halachah. While we were speaking who should come over to speak to Rabbi Lau,
but Phil. I informed Rabbi Lau that the person who was almost single
handedly responsible for the publication of this marvelous weekly magazine
was Phil Chernofsky. Rabbi Lau was overwhelmed when I told him how many
copies were distributed each week. Kol haKavod, Phil. The Talmud (Berachot 7a) relates an incident where the Lord of the universe met insignificant Man and a startling conversa- tion took place, perhaps the most startling in the history of mankind. It took place in a Room (The Holy of Holies in the Holy Temple) into which only one particular man (the High Priest) may enter on only one day in the year (Yom Kippur). (The High Priest enters there four times on Yom Kippur.) The High Priest R. Ishmael ben Elisha entered into the Holy of Holies to offer incense on Yom Kippur and saw a vision of the Glory of the Lord and the vision said to him: "Ishmael, My son, bless Me." Whereupon R. Ishmael answered "May it be Thy will that Thy mercy may suppress Thy anger; Thy mercy may dominate over Thine other attributes so that Thou may deal with Thy children according to the attribute of mercy and deal with them lifnim mishurath hadin." I am always amazed by the thought that R. Ishmael ben Elisha would seem so composed and proceed to issue the blessing. I would imagine that almost any individual hearing a voice that claims it is the voice of the Almighty Himself, even if it occurred in the Holy of Holies might think to himself, I must be hallucinating. Especially hearing such a request from the Almighty Himself. God gives blessings; He does not need to be blessed. I am not certain if this was a request which R. Ishmael could have refused to perform without being in violation of an instruction from God, or whether this was a direct command to R. Ishmael which he could not have refused to perform. The import of this phrase lifnim mishurath hadin in this context seems to be that the attribute of mercy shall prevail over the attribute of strict justice, for man cannot measure up to the demands of strict justice. I shall now set forth several unrelated Talmudic passages and then a few post-Talmudic sources to see if there can emerge a more precise idea of what is meant by the commonly employed term lifnim mishurath hadin. (Avodah Zarah 4b) If one is to pray in private on Rosh haShana, the Talmud advises that he should pray the additional prayer (Musaf) after the first three hours of the day. After some discussion the reason given is that during the first three hours, God judges man according to strict justice while during the next three hours He judges man lifnim mishurath hadin. The prayers of the individual is joined to the prayers of the congregation when an individual is unable to join them because of some emergency reason. Thus during the first three hours of the day when the congregation is praying the morning prayers, the prayers of the individual is joined to their prayers. During the second three hours when most of the congregations pray the additional prayer, the additional prayer of the individual is joined to their prayer. Once again it can be seen that the phrase lifnim mishurath hadin as it refers to God, indicates the attribute of mercy taking precedence over the attribute of strict justice. No doubt the Talmud intended a lesson for mankind in relating these two distinct incidents where lifnim mishurath hadin is employed as an attribute of God. That man should learn from the anthropomorphic attributes is seen in the Talmudic passage which quotes the sage Abba Saul who in commenting on the verse, This is my G-d, and l will glorify Him, said, "Be thou like Him. Just as He is gracious and compassionate, so be thou gracious and compassionate." I believe that Imitatio Dei, the imitation of God extends to lifnim mishurath hadin. (Rambam lists the obligation to imitate God as one of the positive commandments. See his Sefer haMitzvoth, positive commandment eight. We shall thus examine a few passages in various tractates of the Talmud where actions involving persons are termed lifnim mishurath hadin. A question is posed in the Talmud (Kethuboth 97b). Assume that Reuven sold his land to Shimon because Reuven thought that he required the money for a specific purpose. But as a result of circumstances the purpose never materialized, and now the money that he materialized, and now the money that he received from Shimon is not needed by Reuven. Reuven now has money that he does not need, and he would like to get his land back. May Reuven rescind the sale? Can he tell Shimon that the
sale is off retroactively? That is, can he Reuven say that he wants to treat
the sale as if it had never taken place. Then he will return the money to
Shimon, and Shimon will return the land to Reuven. The Talmud attempts an
answer by citing an incident which occurred to R. Papa as a precedent. A
certain man sold his field to R. Papa because he required the money to go
into business. After the sale that man saw that he no longer required the
money. He wanted his land back. R. Papa permitted the man to rescind the
sale and returned the land and took back his money. The Talmud responds that
this incident involving R. Papa may not be a dispositive precedent since R.
Papa may have acted lifnim mishurath hadin. In any event, it is apparent
from the Talmudic discussion that the concept of lifnim mishurath hadin may
be applied to actions of men, and it may be applied to jurisprudential
areas. For example the case described in the Talmud (Baba Bathra 132a) where a person, who had heard that his son died in a distant country, assigned all his property to strangers. When his son subsequently appeared, R. Shimon b. Menasya said that the gift made to the strangers was not legally binding for had the donor known that his son was alive he would not have made the gift. In such instance the Beth Din will take judicial notice that there was a mistake which prompted the transaction and will rescind the transaction even if there was no explicit statement made that the gift was made because the son was dead. There is also the category where a person sold his land and stated the reason for the sale, such as a person who sold his land stating that he desired to move to the Land of Israel. After the sale some urgent reason, such as an illness arose whereby he could not move to Israel. In such a situation the sale may be rescinded by the seller since he explicitly stated the reason for the sale and the reason failed to materialize. His statement is enough to permit the Beth Din to undo the sale since this type of situation is not unusual, that is, a person selling his home for the reason that he wants to move to Israel. IYH this topic will be continued in the next lesson. Questions to quint@inter.net.il [The
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