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Now for today's lesson:
In the incidents that I cited in the last two lessons the Talmud did not cite a Torah source for acting lifnim mishurath hadin. That is, until the last lesson, the one dealing with the incident of Rabbi Ishmael. The Talmud (Baba Metzia 30b) there cites the final phrase of a Torah verse to show that one should act lifnim mishurath hadin. The verse cited is: And thou shalt teach them the statutes and the laws and thou shalt show them the way wherein they must walk, and the work that they must do. (Exodus 18:20) The Talmud there concludes with a statement that the destruction of the Holy Temple came about since the people were judging according to strict legal principles and were not acting lifnim mishurath hadin. Tosafoth points out that the Talmud in Yoma 9b, states that the destruction of the Holy Temple was caused by hatred without cause. Tosafoth con- cludes that both were causes of the destruction.

The last incident mentioned in the Talmud regarding this concept involves appraisers of money. If a person who is expert inspected money for another person to determine if the money was good, and if the expert did not receive a fee for his inspection, he is not liable if he made a mistake and declared invalid money to be valid. If the inspector was not an expert and made a mistake in his inspection of the money, he can be held liable for the loss occasioned by his mistake.

Rabbi Hiyya, one of the sages in the Talmud, was an expert in appraising coins. On one occasion, in response to a woman's inquiry, and without fee, he advised her that the coin she was about to receive from another person was a valid coin. When it turned out that the coin was not a valid coin, Rabbi Hiyya reimbursed the woman for her loss. The question was raised why should Rabbi Hiyya who was an expert and who did not take a fee for the inspection have to pay'? The Talmud (Baba Kamma 99b) answered that R. Hiyya acted lifnim mishurath hadin. The Talmud once again cites the same verse which was cited by the Talmud in the case of Rabbi Ishmael b. Rabbi Yosi, namely And thou shalt teach them etc.

These are all the cases in the Talmud where the term lifnim mishurath hadin is used.

Tosafoth, however, cites another Talmud case (Baba Metzia 83a) as also being in the category of lifnim mishurath hadlin. In that case Rabbah b. R. Huna hired some porters to carry a barrel of wine and they negligently broke the barrel of wine. He seized their garments to compensate himself for the loss caused by the porters. They complained to Rav who ordered Rabbah to return the garments to the porters. When Rabbah asked Rav if this was the law, he was told that he would have to so act in furtherance of the verse in Proverbs (2:20), That thou may walk in the way of good men. The porters, after they obtained their garments, once again went to Ray and complained that they had not been paid for the work they did although the work performed caused Rabbah great loss. Rav instructed Rabbah to pay the porters. Once again Rabbah asked Rav if this was the law and Rav this time quoted the last half of the aforecited verse in Proverbs, and keep the path of the righteous. Rashi, in his commentary to this passage states that the meaning of the phrase in the way of good men means that people should act lifnim mishurath hadin.

It is quite surprising that the cases in which the concept of lifnim mishurath hadin are mentioned in the Talmud are not the types of case where one would expect to find the term used. One might think that it would be used to denote martyrdom, dying to defend the name of God or the Jewish people, or great works of charity and kindness, or going to great lengths to observe the commandments of the Torah such as the Sabbath, circumcision, kashruth. The Talmud is replete with such incidents. Instead it cites several simple, almost mundane acts. Thus the concept of 1ifnim mishurath hadin is not reserved for great saints only, but is available to all persons.

Tosafoth asks why the Talmud in certain cases did not cite any verse in dealing with 1ifnim mishurath hadin; why in some cases it cited the verse And thou shall show them; and why in the last cited case it cites the verse from Proverbs? Tosafoth sets up three categories. In the first category are cases where there is no obligation on any person to perform a certain act but nevertheless a person goes ahead and performs the act in a manner of lifnim mishurath hadin. In such case no verse is necessary. Thus in the two cases of Rav Papa, no similarly situated person would have been required to return the land or to interrupt his eating to say Grace. Thus in both instances Rav Papa acted lifnim mishurath hadin, when he returned the property and when he interrupted the meal. Similarly in the case of Samuel and that of his father, there was no obligation on any person similarly situated to return the found objects.

These cases do not require a verse as the basis for acting lifnim mishurath hadin. In a situation, however, where there is an obligation on all people to perform or refrain from performing certain acts and there are some people who because of their position are exempt from the performance of these acts, then a verse is necessary to tell these exempt people to act lifnim mishurath hadin and to waive their exemption. The verse which indicates this is the verse And thou shalt teach them. Thus Rabbi Ishmael b. Rabbi Yosi not taking advantage of his exemption to load the wood carrier, and Rabbi Hiyya not taking advantage of his exemption and paying the woman are both examples of a person who is exempt nevertheless waiving his exemption. In the case of Rabbah b. R. Huna even the requirements of lifnim mishurath hadin would not apply, since there is absolutely no requirement that lifnim mishurath hadin cause one great monetary loss. In such case the verse in Proverbs which speaks of going in the way of good men and keep the path of righteous would apply.

Tosafoth thus seems to illustrate three ascending categories of lifnim mishurath hadin. The first category where no one is obligated to do an act, and nevertheless this person performed the act. Such a person has certainly risen above the crowd. Second, the person who is exempted from doing an act which all other people have to do. The most difficult thing for a person to do, is to have to compensate another person who has caused him injury. This is really a case of adding insult to injury.

These comments of Tosafoth are significant for two reasons. Firstly they point out the three categories which we might not have seen ourselves. Secondly, they teach that there may be cases of lifnim mishurath hadin although they are not so designated in the Talmud. Tosafoth were not the first to make this latter point.

Rashi a forerunner to the Tosafoth, in commenting on the verse And thou shalt do that which is upright and good in the eyes of the Lord, states that the verse deals with lifnim mishurath hadin. This verse is cited in the Talmud in two different situations, one dealing with the ability of a debtor to reclaim his lost property and the other with the right of first refusal given to adjoining property owners to purchase property put up for sale.

These last two cases will IYH be discussed in the next lesson.

Questions to quint@inter.net.il

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