Lesson # 140 (part four) • Lifnim Mishurath HaDin At the end of the last lesson it was stated that the verse (Deuteronomy 6:18), “And you shall do that which is upight and good in the eyes of the Lord”, is cited in two cases, one dealing with a judgment-debtor and the other dealing with the right of first refusal given to adjoining landowners to purchase property put up for sale. These two cases are now discussed here. In case #1, the plaintiff, Reuven, sues the defendant, Shimon, in Beth Din. The plaintiff, Reuven wins the case. Lets assume there is a judgment for $100 in favor of Reuven against Shimon. Reuven having won the case is now a judgment-creditor. Shimon who lost the case is now a judgment-debtor. If Shimon does not have any money with which to pay the $100 judgment, Reuven may ask the Beth Din to send a marshal (like Wyatt Earp) to seize assets of Shimon to pay the $100. The marshal will seize sufficient personal property of Shimon to pay the $100 judgment. The personal property so seized by the marshal of the Beth Din will be transferred Reuven, the judgment-creditor. Should Shimon, the judgment-debtor there- after obtain money, and if the seized property is yet in the hands of Reuven, Shimon may tender to Reuven $100 that is the amount of the judgment and demand the return of his property. There is no time limit for Shimon, the judgment-debtor to so act. The reason given in the Talmud why the judgment-creditor must permit the judgment-debtor to redeem his property is that such conduct is required by the verse “And thou shalt do that which is upright and good”. Case #2. There were seven recent lessons devoted to the right of first refusal. For those who may not have read those lessons, generally speaking, if a person desires to sell his property he must first offer it to the neighbors adjoining the property being offered for sale. If one were to sell his property without first offering it to the neighbors then the purchaser, at the demand of the adjoining neighbors must sell the land he just purchased to the neighbors adjoining the property. The reason for this is that one must act in a manner which is good for his neighbors while at the same time not causing any loss to the seller. The Talmud in demonstrating the Torah requirement for such conduct cites the same verse And thou shalt do that which is upright and good in the eyes of the Lord. It thus seems to me that the Talmud has another category in addition to those mentioned by the authorities mentioned in the last lesson. That in certain situations lifnim mishurath hadin may be required conduct and may be enforced in Beth Din. Following the lead of Rashi, Ramban in his commentary on the Torah also states that the verse And thou shalt do that which is upright and good in the eyes of the Lord teaches us to compromise and to act lifnim mishurath hadin. As explained by Ramban not only must one keep all the command- ments but one must also act lifnim mishurath hadin even in situations where there is no actual commandment so to act. That is, because God loves that which is upright and good. Since it is impractical for the Torah to specify conduct for all situations which may arise between and amongst people, the Torah requires that the principle of lifnim mishurath hadin should guide a person in his actions. Ramban concludes that a person should act lifnim mishurath hadin so that he will be worthy of being called perfect and upright. I shall spend some time citing authorities, something I usually do not do in lessons. However, because of the philosophical significance if God wants us to transcend ourselves and act beyond the requirement of the halachah, I will list a few of the authorities. Except for this category of lifnim mishurath hadin that I have proposed, which is enforceable in Beth Din, there seems to be a difference of opinion amongst the codifiers of the halacha if a Beth Din may enforce the concept in the other categories and if so, to what extent. This divergence is most vividly seen in the opinions of two authorities who were both students of Rabbi Meir of Rothenburg who lived in the thirteenth century. (Many of us remember reading how he was imprisoned by the German ruler but he would not permit his students or friends to ransom him because it would set a bad precedent and encourage Christians to kidnap prominent Jews and hold then for ransom. This is an oversimplification of a complex situation.) One authority, Mordechai ben Hillel (who has a street downtown named after him) wrote that the Beth Din may compel a person to act lifnim mishurath hadin if it has the ability to do so. He cites Rabbi Eliezer b. Nathan and Rabbi Isaac b. Asher halevi as concurring. The other authority, Rabbi Asher b. Yehiel, writes that one may not be compelled to act lifnim mishurath hadin. With this seeming difference of opinion as background we shall see, in a limited way, how the subsequent codifiers and respondents treat the subject of enforceability of lifnim mishurath hadin. The authorative code of law recognized by all Jews is the Shulhan Aruch. This work, together with its many commentaries, super-commentaries, subsequent minor codes and responsa literature form the basis for the current state of the halacha. The forerunner to the Shulhan Aruch is the work Arbaah Turim (Four Rows) by Rabbi Jacob, the son of the aforementioned Rabbi Asher b. Yehiel. The Arbaah Turim, as its name implies, is divided into four parts, the final part being designated by the name. Hoshen HaMishpat, deals with jurisprudence. The Arbaah Turim, published in the early part of the fourteenth century, remained one of the prime authoritative codes until the middle of the sixteenth century. Rabbi Yosef Karo, in the middle of the sixteenth century wrote a legendary commentary on the Arbaah Turim called Beth Yosef. He thereafter summarized this commentary into the work which is known as Shulhan Aruch. Because his original work was a commentary on the Arbaah Turim, the sequence of the Shulhan Aruch is the same as that of the Arbaah Turim. Rabbi Karo having spent all of his life in Spain, Bulgaria and Israel reflected the Sephardic tradition of the halacha. A younger contemporary Rabbi Moses Isserles (Ramo), living in Crakow, Poland, also wrote a commentary on Arbaah Turim called Darkai Moshe reflecting the Ashkenazic traditions of the halacha. When Rabbi Karo published his Shulhan Aruch which reflected the Sephardic traditions, Rabbi Isserles interlineated additions to the Shulhan Aruch to reflect the Ashkenazic traditions. This combined work together with all post Shulhan Aruch literature which are within the parameters of the Shulhan Aruch comprise current halacha. The subject of lifnim mishurath hadin appears in two chapters of Hoshen HaMishpat, in chapter 12 which deals with some aspects of the jurisdiction of the Beth Din, and in chapter 259 which deals with some of the aspects of lost and found property. Rabbi Jacob b. Asher does not discuss the concept in chapter 12 of Tur Hoshen HaMishpat. Rabbi Karo, however, in his Beth Yosef commentary to chapter 12 states that a person may not be compelled to follow the concept of lifnim mishurath hadin. In addition to citing the aforementioned view of Rabbi Asher b. Yehiel, he also cited Rabbi Yeruham as so holding. He then mentions the view of Rabbi Mordechai b. Hillel but questions his view that a person can be compelled to comply. What is emerging is a different philosophical approach as to
whether a person can be compelled to act above the requirements of the halachah. [The
Chukat Homepage]
|
