HOW BAD CAN BADMOUTHING OTHERS BE? – BABA METZIA 58b

Badmouthing others is big news these days. On one end you have the tell-all celebrity gossip columns. They may not end careers, but they certainly lower our estimation of the people involved. On the other end of the scale we hear more and more of the fatal consequences of bullying, in person and via the internet. What many consider just normal neighborhood gossip has its deadly side.

The sages understood the power of words. We state in the morning prayers, “Blessed is the One who spoke and the world was.” God created the world through words. They also understood that words are dangerous.

The majority of Baba Metzia, chapter 3, is concerned with behavior known by the Hebrew term ona’ah, generally translated as fraud or overreaching. There are a variety of ways in which merchants can deceive buyers or buyers can take advantage of sellers. The sages establish boundaries that protect both buyer and seller against such abuses.

Suddenly, about 2/3 of the way through the chapter, the mishnah extends this concept of ona’ah beyond the realm of business and applies it to interpersonal relationships. “Just as a claim of ona’ah applies to buying and selling, so does it apply to spoken words.” (B. Baba Metzia 58b). The examples offered by the mishnah describe the logic that carries this precept forward. One should not ask a merchant for details on merchandise you have no intention of buying because it misleads him. But then… One should not confront a repentant sinner with his past deeds nor a convert with his family’s pagan past. All of these are considered forms of verbal abuse.

In the gemara (B. Baba Metzia 58b) Rabbi Yohanan asserts both that verbal ona’ah is far more common than business fraud and that it is considerably more serious. We soon learn that

“All who go down into Gehenna [the equivalent of Hell] return except for three, who go down but do not come back up, and these are they: (1) he who has sexual relations with a married woman, (2) a person who embarrasses his fellow in public, and (3) he who assigns a mean nickname to his fellow.”

Did you know that the consequences of verbal abuse were so long-lasting?

The stakes get raised even higher. The gemara quickly assimilates calling someone by a mean name (the third category) into the idea of embarrassing one in public (the second category). These are two ways of saying the same thing. Only two are subject to this harsh judgment – the adulterer and the one who abuses another through verbal ona’ah.

Then the sages remove the adulterer from the list. How can they do that? After all, adultery is included in the 10 Commandments. Sexual immorality is included on the short list of three commandments that a Jew must die for rather than transgress them (the other two are idolatry and murder). But Rabbah bar bar Hana in the name of R. Yohanan sees it differently. He suggests that “it would be better for someone to have sexual relations with a woman who may or may not be married but not embarrass his fellow in public.” His reason – the adulterer can repent, but the one who commits verbal ona’ah, abuse, cannot.

And then there was one. Only one offender goes down to Gehenna and does not return – the one who commits verbal ona’ah, verbal abuse.

As if that were not bad enough, the gemara goes on to illustrate the long-lasting and devastating effects of verbal ona’ah. This discussion serves as the introduction to the famous story known as the Oven of Achnai (59b). Here a dispute within the academy over whether a new style of oven (created by Achnai) should be considered kosher. Rabbi Eliezer approved of the oven while the sages did not. Rabbi Eliezer forcefully insisted on his point of view leading the sages to excommunicate him. The story is long and the details important, and for our purposes it is sufficient to note that the tale ends tragically. The verbal ona’ah exchanged that day leads to chaos in the academy, destruction in the countryside, and the death of Rabban Gamaliel who was the brother of Rabbi Eliezer’s wife, Imma Shalom (mother of peace).

How bad is it to badmouth others? The sages insist that it leads to death and destruction in the world and consigns the perpetrator to Gehenna. In the end it is better to follow your mother’s advice – if you can’t say something nice, don’t say anything at all.

"May it be Your will..." / More from Berakhot 16 and 17

A few weeks ago I wrote that our studies in Baba Metzia led us on an excursion into masechet Berakhot, specifically searching out prayers beginning, “May it be Your will…”

Today, for your pleasure and enjoyment, several of the Sages’ prayers recorded on dapim 16 and 17. Often, we think that Jewish prayer is restricted to the “authoritative” prayers published in authorized siddurim (prayer books). In fact, originally all Jewish prayer was the spontaneous creation of each individual engaged in prayer to God. Our Sages ordained the themes and order of the prayers, but not the precise wording. At a later point in time, it became clear that it was onerous to compose prayers each and every day to cover the lengthy order of prayer themes, so the Rabbis commissioned the writing of prayers, resulting in many of those we use today.

Among those recorded on dapim 16 and 17 is the prayer of Rav that was used as the foundation of Birkat HaChodesh (the prayer to announce the coming of the new moon) and prayer of Mar b. Ravina that is recorded in most siddurim following the Amidah as an example of personal prayer. In fact, the Talmud tells us that all the prayers on these pages were the personal prayers of the Sages following the recitation of the Shema. These days, we think of them as being more appropriately appended to the Amidah because there is a tradition that merely reciting the words of the Amidah, without adding something from one’s own heart, is insufficient. God wants to hear what’s on our minds. Given that prayer is not about making ourselves subservient to God and acting the role of obedient automaton, but rather about forging a meaningful relationship with God, this makes perfect sense.

Here are some lovely examples from the Talmud. Perhaps you might like to “take them out for a spin.” See if they work for you. Perhaps they will inspire your own expression in prayer.

R. Eleazar, on concluding his prayer, used to say the following: May it be Your will, O Lord our God, to cause to dwell in our lot love and brotherhood and peace and friendship, and may You make our borders rich in disciples and prosper our latter end with good prospect and hope, and set our portion in Paradise, and confirm us with a good companion and a good impulse in Your world, and may we rise early and obtain the yearning of our heart to fear Your name, and may You be pleased to grant the satisfaction of our desires. (16b)

Here’s another beauty:

R. Safra on concluding his prayer added the following: May it be Your will, O Lord our God, to establish peace among the celestial family, and among the earthly family, and among the disciples who occupy themselves with Your Torah whether for its own sake or for other motives; and may it please You that all who do so for other motives may come to study it for its own sake! (16b, 17a)

There is a disagreement concerning whether the following prayer was said by R. Hamnuna or R. Alexandri. What I love about it is that it acknowledges that our failures, while sometimes due to outside forces, cannot be entirely blamed on others. We must take responsibility, too. The prayer names the failure of human will before external influences, reminding us that we should look within before casting around elsewhere for blame:

Sovereign of the universe, it is known full well to You that our will is to perform Your will, and what prevents us? The yeast in the dough [i.e., the evil inclination] and the subjection to the foreign powers. May it be Your will to deliver us from their hand, so that we may return to perform the statues of Your will with a perfect heart. (17a)

Rav Sheshet, when he fasted, would say this prayer, in which he draws a fascinating parallel between the blood and fat offered on the altar in the Jerusalem Temple, and the blood and fat he would lose through his fast. Rav Sheshet offers up his blood and fat for atonement. Given Judaism’s stance against asceticism, we might wonder that this prayer was included, yet you might want to consider it next Tisha B’Av and Yom Kippur.

Sovereign of the universe, You know full well that in the time when the Temple was standing, if a man sinned, he used to bring a sacrifice, and though all that was offered of it was its fat and blood, atonement was made for him by it. Now I have kept a fast and my fat and blood have diminished. May it be Your will to account my fat and blood which have been diminished as if I had offered them before You on the altar, and please favor me. (17a)

If you have a favorite prayer you have composed and would like to share it here, by all means, please do.

© Rabbi Amy Scheinerman

CRIMES AND MISDEMEANORS AND BAILMENTS – BABA METZIA, CHAPTER 3

Dostoyevsky would be my preferred author to turn chapter 3 of Baba Metzia into a novel. It opens with a request for a simple favor, “Would you watch over my goods for a while,” and ends as a psychological drama as the presumed guard contemplates theft. This is the trajectory traced by this chapter which serves as an extended exploration of the verses from Exodus 22:6-8:
If a man shall deliver to his neighbor money or utensils to keep, and it is stolen from the man’s house; if the thief is found, let him pay double. If the thief is not found, then the master of the house shall be brought to the judges, to see whether he has put his hand to his neighbor’s goods. For every kind of trespass, whether it be for ox, for ass, for sheep, for garment, or for any kind of lost thing, which another challenges to be his, the cause of both parties shall come before the judges; and whom the judges shall condemn, he shall pay double to his neighbor.

I find it hard to blog on the individual issues within this chapter. The arguments tend to be complex and not easily summarized. The chapter as a whole, however, serves as a cautionary tale worthy of our notice.

The opening mishnah (B. Baba Metzia 33b), poses what sounds like a simple situation: “If someone deposits an animal or vessels with his friend and it gets stolen or lost.” The questions that follow are predictable: how does one substantiate that the goods were stolen, what compensation is due, what happens if a thief is located after a settlement has been reached. In certain ways the Talmudic concerns differ from our own because there is the possibility of goods having been dedicated to the Temple. It is a complication without parallel in the modern world. Much of the discussion that follows is recognizable in our contemporary setting.

The problem at the root of this discussion is that the one who is watching over the goods is the legitimate caretaker, but not the owner. On one hand, he bears responsibilities that are similar to an owner, but there are limits on his behavior. On the other hand, the goods in his possession may be a temptation. The Mishnah explores a variety of permutations on the theme, which leads to the title of this blog. What begins as a bailment (a legal arrangement that arises when a person gives property to someone else for safekeeping), may lead one to consider committing a misdemeanor or tempt one to consider even worse crimes.

At the outset the focus notes the tension between ownership and possession. “If one rents a cow from his fellow and then lends it to another, and then the cow dies or natural causes.” (B. Baba Metzia 35b) On whose watch did the cow die? Is there compensation for the owner who has lost a cow, for the renter who no longer has the means to complete his work, or for the borrower? More, the cow, which can be sold for meat, still has some value. Who is to benefit from that value?

Fittingly the Mishnah discusses the differences that exist when dealing with different goods. If one is entrusted with an animal, there is a responsibility for the maintenance of the animal. When storing produce, which can rot or be eaten by vermin, different considerations come into play. And if one entrusts money for safekeeping with another, there are appropriate ways to protect those funds.

By the middle of the chapter, the focus begins to shift. What if the guardian was guarding a barrel of wine, but moved it about and it broke? If he was authorized to move it about, perhaps it is okay. But then the sages wonder if he was moving it for its own benefit, to somehow improve his situation, or if the move was for his convenience or benefit. Perhaps he was using it as a stepladder to reach some high object. One must distinguish between several possible ways to understand the guardian’s actions. The last half of the chapter tries to sort between these possible understandings of a guardian’s action:
• the latitude the guardian was given by the owner,
• the reasonable authority he held as the one on the scene,
• the possibility of negligence in caring for the property poorly,
• the opportunity to borrow some of the goods now with the intention of returning them before the owner reclaims the goods,
• the temptation to misappropriate the goods (say, to have an occasional sip from the stored wine),
• or the enticement to steal the object for his own benefit.

The final mishnah considers the intention that may precede action. “Someone who intends to misappropriate a deposit…” (B. Baba Metzia 43b) Beit Shammai (44a) considers that the thought is sufficient to establish the crime, while Beit Hillel argues that he is not liable until he actually stretches out his hand to do the deed.

Throughout our study of this chapter I found parallels between the gemara and the daily news. Revelations of malfeasance, from Madoff to unscrupulous mortgage lenders to unexamined foreclosures, reflected the ancient discussions of the sages. In the simple act of asking a friend to watch over some goods, we have explored a wide range of possible deeds and misdeeds. It recognizes that entrusting goods to another is not a simple act at all. It opens up questions of competence and integrity. It acknowledges the temptation that we feel when we have control over another’s property.

The last word of the chapter is teiku, meaning that the question remains unanswered until Elijah the Prophet comes to resolve all outstanding questions in advance of the Messiah’s arrival. While it responds to a specific and limited issue within the gemara, I feel that the choice to leave this as the last word points to a bigger matter. When we are entrusted with another person’s goods we face choices on how we will act in this instance. Will we be a trustworthy guardian of the bailment in our hands, or will we succumb to the temptation to commit crimes and misdemeanors.

Musings and Meanderings from Baba Metzia to Berakhot / Baba Metzia 42 and Berakhot 16-17

We’ve taken a side trip on our excursion through Baba Metzia. It came about because of a passage in Baba Metzia 42a:

Our Rabbis taught: Someone who goes to measure [produce] in his granary says: “May it be Your will, Lord our God, that You will send blessing upon the work of our hands.” After he has begun to measure, he says, “Blessed is [God] Who sends blessing upon this pile [of produce].” If he measured and afterward said a blessing, this is a prayer said in vain, because blessing is not found, neither in something that is weighed, nor in something that is measured, nor in something that is counted, but [only] in something that is hidden from the eye, as it is said, The Lord will command the blessing upon you in your storehouses (Deuteronomy 28:8).

The passage seems to be an attempt to balance prudence and providence, but it evoked many questions, among them:

• Why is it proper to recite a blessing prior to or in the midst of measuring, before one knows the extent of the harvest, but after measuring it’s a tefilat shav (a prayer said in vain)? An experienced farmer can look at a pile of produce and estimate its volume fair precision; measuring merely confirms what he or she has already discerned, so there is little surprise in the measurement. But even if the final tally is a delightful surprise, the quantity has not changed from the time measuring began until the final total is jotted on a clipboard or entered into a laptop. It seems that the experience of not knowing (or not having confirmation of the final tally) versus the experience of learning the measured quantity is what matters: until the grain is measured, the farmer presumably cannot be sure what he or she has. Hence the final quantity is still “in God’s hands” until the measuring is completed. (I don’t find this religiously satisfying, but I can imagine that others would.)
• Why are the two blessings offered in the text couched in different tenses (the first in the future tense – “that you will send” – and the second in the present tense – “who sends”). Why does one begin “May it be Your will…” while the other begins “Blessed is [God] Who…”

The second question sent us in search of other prayers following the “May it be Your will…” structure and we ended up on Berakhot 16-17, which are replete with the personal prayers of many Sages. We jumped into the pool on 16b with a mishnah that cites three cases in which the students of Rabban Gamliel and his son, Shimon, question their masters’ decisions to contravene a halakhic ruling.

[Rabban Gamliel] washed the first night after his wife died. His students said to him: You, our master, have taught us that a mourner is prohibited from washing. [Rabban Gamliel] said to them: I am not like other people; I am a delicate individual.

When [Rabban Gamliel’s] slave Tavi died, he accepted condolences for him. His students said to him: You, our master, have taught us that one may not accept condolences for a slave. He said to them: My slave Tavi is not like other slaves; he was worthy.

If a groom wishes to recite the Shema on the first night [following his wedding] he may recite it. Rabban Shimon ben Gamliel says: Not everyone who wishes to take the name may take it.

The three examples appear to be in ever-widening circles of relationship. The first (washing) concerns one’s relationship with one’s body. The second (Tavi) concerns one’s relationship with another human being. The third (reciting Shema) concerns one’s relationship with God. In each case, the halakhah establishes standard procedure, but Rabban Gamliel and Rabban Shimon b. Gamliel find that the global ruling is not appropriate in all cases, particularly in their own circumstances. Rabban Gamliel has a fragile constitution; his ill health requires that he wash. His washing reminds us that Jewish practice cannot be “one size fits all” because we not all the same (“A person stamps many coins with one die and they are all alike, one with the other, but the Holy One blessed be God, Sovereign of sovereigns, has stamped all humanity with the die of the first man and yet not one of them is like another.” Sanhedrin 4:5) Similarly, Rabban Gamliel developed a close tie to Tavi such that Tavi was family to him and conventional societal roles were trumped by the tenderness and intensity of their friendship. Rabban Gamliel opens a window of fresh air to flexibility in one’s relationship with tradition. Perhaps in reality it’s a reflection of time before rigidity set in.

Our third example, however, seems to suggest a different direction: Rabban Shimon b. Gamliel rejects the Sages’ permission to a groom to choose whether or not to recite Shema on his wedding night; he appears to view it as hubris to believe you have the kavanah for Shema on such an occasion. The Gemara on 17b discusses Rabban Shimon b. Gamliel’s viewpoint. The question is raised: if Shimon is worried about the appearance of haughtiness, does this imply the Rabbis are not? They introduce another mishnah, Pesachim 4:5, in which we are told that the Rabbis taught that where people normally work on Tisha B’Av (the date in the calendar on which Jews commemorate and mourn the destruction of the First and Second Temples), one may work; where it is not the custom to work, one need not work. However, Rabban Shimon b. Gamliel says a person should always act like a Torah scholar (and hence abstain from work). Does this not make one appear haughty? Is this not in contradiction to our mishnah above on Berakhot 16b? The Gemara concludes that no contradiction exists because in the first case (Berakhot) the brideroom holds himself out as different from others. In the second case (Pesachim) we can assume that there are many others who are not working, so abstaining from work on Tisha B’Av does have the appearance of haughtiness.

We began in Baba Metzia with a question about prayers that begin “May it be Your will…” and that led us to Berakhot 16-17 which is replete with examples. The mishnah that inspires these prayers, or calls them into the Talmud, sets a tone of flexibility and personal practice. The prayers themselves are deeply personal, individual prayers. These aspects of our tradition – flexibility in practice and personal prayer not connected to fixed liturgy – is set in the beginning, but not nearly as emphasized today as they deserve to be.

Berakhot 16 and 17 record some beautiful prayers, a few of which have been incorporated into our liturgy, and others that are worthy of attention. I’ll share several with you next time. You might like to use them.

© Rabbi Amy Scheinerman

GUARDIANSHIP: PRACTICAL AND SPIRITUAL – BABA METZIA 38A

When studying long legal sections of gemara I sometimes feel the spiritual core of the teaching is missing. This is not to dismiss or denigrate the legal portions. The extended discussions about returning lost objects or caring for goods left in your care have revealed important aspects of these seemingly mundane transactions.

Our current study in Baba Metzia concerns the issue of guardianship, the responsibility of a guardian to care for perishable goods entrusted to him. A midrash on Parshat Netzavim seems to parallel our current passage. I wonder if the midrashic author might have had our passage in mind as he created his parable. I fell that it adds a spiritual dimension to the legal passages we are studying. See what you think.

Our mishna asks how a guardian, one who is appointed to oversee someone else’s goods, may deal with depreciation, specifically a product that might deteriorate quickly.

“When one deposits fruit (or other perishables) with his fellow, even if they are rotting, the guardian may not sell them. Rabban Shimon ben Gamiliel says: He should sell them before a court because he is considered as one who is returning a lost object to its owner. (Baba Metzia 38a)

The two opinions are not hard to understand. Rav Kahana offers a straight forward explanation in the gemara: “owners prefer their own goods more than nine measures of someone elses.” Presumably the owners understand that their product is subject to depreciation, fruit may rot or vermin may eat at it, and would have given instructions if they wanted the guardian to do more than watch over it. The task is simply to protect the product. Rabban Shimon ben Gamiliel, by contrast, believes the guardian is obliged to proactively protect the value of the goods under his supervision. If the guardian needs to sell the goods in order to preserve their value, the court serves to protect the interests of both the owner and the guardian.

At the end of Moses’ closing speech to the people he entrusts the Torah into their care. He reminds the people that if they listen to God’s voice, as heard in the Torah, then

the Lord your God will make you abundantly prosperous in every work of your hand, in the fruit of your body, and in the fruit of your cattle, and in the fruit of your land, for good; for the Lord will again rejoice over you for good, as he rejoiced over your fathers. (Deuteronomy 30:9)

The text goes on to reassure the people that “this commandment which I command you this day, is not hidden from you, nor is it far off.” (Deuteronomy 30:11)

The Midrash wonders about this commandment which is entrusted to the people. It is, to highlight the parallel with our mishnah, the product (Torah) that is deposited with the guardian (the people) and for which they are responsible to return it in good condition. The midrash underscores the fragile nature of Torah by saying: were it not for the Torah the world would have already reverted to chaos.

Here is the full passage (Deuteronomy Rabba 5:5)

FOR THIS COMMANDMENT: What commandment is this? The sages say, it is hard [to talk about because the stakes are so high].
To what may this be compared: A king had a precious stone which he entrusted to his friend. He said, Please take care and guard it properly. If you lose it you do not have the ability to repay me, nor do I have another like it. You will have sinned against me and against yourself. Act to our mutual benefit and guard it well.
Similarly Moses said to Israel, If you guard the Torah you will act for the benefit of yourselves and for me.

The midrash parallels the mishna. God has deposited the Torah, a precious and fragile product, with the people. If the Torah is not cared for the world will depreciate and return to tohu va-vohu, chaos, and will be worthless. It is the responsibility of the guardian (the Jews) to assure the quality and value of the goods and to return them to the Owner in good condition.

Is there anything to be learned from the parallel of these two passages? On the simplest level, it reminds me that there is a spiritual lining to these legal discussions. The straightforward transaction of one person entrusting another with their goods involves trust, honesty, reliability and good judgment. The legal discussion relies on the middot, the ethical qualities of the owner and the guardian. Torah teaches that these middot are spiritual qualities, developed through a life of Torah.

This parallel reinforces the idea of the covenant between Israel and God as a legal agreement, one based on mutual obligations. God gave us the Torah knowing the stakes were high. The fate of the cosmos hangs in the balance. If we are unreliable guardians, chaos will reign. If we are faithful guardians, we will all prosper. The Torah is not merely a spiritual idea or a personal practice, but a precious trust that is entwined with the whole of Creation.

This seems an appropriate topic as we approach Rosh HaShannah, the birthday of the universe. Over these Days of Awe we will renew our vows with God, return through teshuva, repentance, to fulfill our part of the bargain. My we be steadfast guardians for our good and the good of all.

L’shanna Tova Tikateyvun – May all of our readers be blessed with a good year.

© 2010, Rabbi Louis A. Rieser

The Ins and Outs of "Must" and "May" / Baba Metzia 37-38

The Talmud’s concern about lost articles, and our responsibility to care for lost articles we acquire until the rightful owner can be found, as well as its discussion of the rights and duties of a bailee caring for someone else’s property, cross paths on daf 37b – 38b thanks to the view of Rabban Shimon b. Gamliel.

We begin with the mishnah on 37b:
One who deposits fruit with his friend [for safe keeping], even if [the fruit] is beginning to rot, he may not touch it. Rabban Shimon b. Gamliel says: he sells it [the fruit] by the authority of a court because he is like someone who is returning a lost item to its owners.

The anonymous opinion says that I may not do anything with produce left in my care, even if it is rotting and will soon become utterly worthless. It’s not mine to use, eat, sell, or touch. I am just the bailee. Rabban Shimon b. Gamliel, however, views the situation in light of what Talmud says about lost articles: the value of the fruit is about to take a drastic nosedive. Therefore, I should obtain permission from a court to sell the fruit before it loses all value and thereby salvage something for the owner. When the owner returns, I can hand him the money from the sale of his fruit. Presumably, he will pleased that his fruit did not come to a total loss. Or will he?

Two defenses of the anonymous opinion are raised immediately in the gemara The first addresses the assumption just articulated. Rav Kahana tells us, “a person prefers a kav [a kav is a volume measure equivalent to 1.4 liters] of his own to nine kabim of someone else’s.” Hyperbole aside, the point is that most people would prefer the fruit they had grown and harvested, intact, to anyone’s else. I can understand this with regard to clothing, jewelry, cooking utensils, or hand-made items, but fruit? Really? Fruit is entirely fungible. And rotting fruit? The second defense of the stam (anonymous) opinion is ascribed to Rav Nachman bar Yitzhak, who tells us that the owner of the fruit might have designated it as terumah or ma’aser, without the bailee being aware. Terumah and ma’aser are tithes on produce grown in the Land of Israel. They were given to the priests, and until separated from the rest of the crop, the owner could not eat the rest of the produce he had harvested. Once designated for the priests, terumah and ma’aser became hekdesh (consecrated); this means that were the bailee to eat or sell them, he would be committing an act of me’ilah (misappropriation of Temple property). Rav Nachman tells us that the bailee may not sell the fruit because then he would be committing me’ilah.

The gemara explores the situation by raising, and analyzing, several objections. On daf 38, the gemara introduces a baraita that tell us:

One who deposits fruit with his friend and it rots, or wine and it turns sour, or oil and it becomes rancid, or honey and it crystallizes, [the bailee] may not touch it; these are the words of Rabbi Meir. But the Sages say: he makes a remedy for them [the spoiling objects] and sells them on the authority of a court. And when he sells them, he must sell them to others, and may not sell them to himself…

We then find this assertion:

Rabban Shimon b. Gamliel says: he sells them [the fruit] [by the authority of] a court because he is like one who returns a lost article to its owners. It was said: Rabbi Abba the son of R. Yaakov said in the name of Rabbi Yochanan: the halakhah follows Rabban Shimon b. Gamliel. And Rava in the name of Rav Nachman said: the halakhah follows the Sages.

What is the difference between Rabban Shimon b. Gamliel’s opinion in the mishnah (on 37b) and again in the baraita above, and the Sages’ opinion as expressed in the baraita quoted on 38b? There are appears to be two differences:

1. Rabban Shimon b. Gamliel considers selling the fruit an obligation, while the Sages give the bailee permission to sell the rotting fruit, but do not require him to do so.
2. When Rabban Shimon b. Gamliel justifies this obligation by treating the rotting fruit as a soon-to-be lost object (monetarily); thus the bailee must salvage some value for the owner. The Sages treat the fruit is merely an item entrusted to the bailee, and hence do not make the bailee responsible for its monetary condition when natural deterioration takes place.

What is at stake here? On the one hand, there are many occasions in this scenario for something to go wrong and resentments to arise. Perhaps the owner will resent the bailee selling his fruit (could it be that Rav Kahana is correct?). Perhaps the bailee will resent the additional burden of running to court for authorization to sell, and then the time and hassle of hauling the fruit to market. After all, all he agreed to do was store the fruit in his basement. Perhaps if the bailee sells the fruit in an effort to limit the financial loss suffered by the owner, the owner may feel that the bailee undersold the fruit and he has been cheated of the profit due him. Rabbi Shimon b. Gamliel’s model opens the door to all these and more.

If Rabban Shimon b. Gamliel’s opinion is accepted as halakhah, the model is lost property, and the bailee must sell the fruit, with all the possible consequences delineated above. If, however, the Sages opinion is accepted as halakhah, the model is that of serving as a bailee, and no further effort is required, though one may choose to exercise sound and kind judgment and seek to limit the financial loss of the owner of the fruit.

In our conversation, Rabbi Rieser offered an interesting and inverse, analogy: The by-laws of his congregation say that a board member who misses three meetings must be removed from the Board and the president fills the vacancy. This sounds draconian, but it is ironically the more lenient and safer approach than the alternative: the president may remove the Board member. First, the president is free to fill the vacancy with the very person who was removed for missing three meetings. Second, if the by-laws were to say that one who misses three meetings may be removed from the Board, this would open the president to suspicion of capriciousness or favoritism. By saying must be removed, the president can hold a confidential conversation with the Board member who has missed three meetings and inquire if there is a problem precluding attendance, and whether this person is still committed to serving on the Board, and then make an appropriate decision without sitting under a cloud of suspicion.

Where the synagogue by-laws create flexibility by stating “must,” the Sages achieve flexibility and avoid the possible problems implicit in selling the rotting fruit by saying “may.”

© Rabbi Amy Scheinerman

WHO IS YOUR TEACHER – BABA METZIA 33A

Forty years ago I sat in the lobby of the King David Hotel in Jerusalem talking with a man we had met while walking on the street. Ezra was from Philadelphia, had made aliyah, and now lived and taught in the Holy City. We had encountered him a few times and he had acquired a special aura for us because he seemed to appear when least expected. That day the conversation turned to terrorist bombings and questions of responsibility. Ezra pointed toward the entry and commented, “See the doorman. If a bomb were secreted in those bags by the door and exploded, he would get all the blame for not being more attentive. But we are sitting here; we see the bags; we are observing everyone as they come and go. Why would we escape blame? We see as much as he does.”

I had never considered that I bore responsibility in that way. If it were my job, of course. But Ezra was correct; responsibility is not limited to those tasks or times for which we are payed. We are responsible for all that we see and encounter. That day Ezra became my teacher.

Who are your teachers? How did they earn that title? I do not grant that title easily. Not everyone who stands at the head of a classroom achieves that status. They are instructors or facilitators, but a teacher is something more. While we may find our teachers in the classroom, we are as likely to find them on the street, among our friends, or in random encounters.

Henry Adams wrote that a teacher “affects eternity; he can never tell where his influence stops.” His insight helps us understand why we are privileged to find only a few teachers in our lifetime. Teachers do more than inform us, they change us. The change may not be obvious. It may not actually occur when we are at that key moment of teaching, but may lie dormant for years. Nonetheless some piece of wisdom passes between us and moves us in powerful ways.

The Mishnah (B. Baba Metzia 33a) gets to a discussion of who qualifies as a teacher through a seemingly odd discussion. “If you should happen to have the opportunity to retrieve an object lost by your father at the same time that you could reclaim one lost by your teacher, whose property should you recover first.” The question strikes at a basic principle. After all, Torah clearly and repeatedly instructs us to honor both father and mother; a command that sits at the center of the Ten Commandments. The Torah does not speak of teachers or rabbis, and certainly does not present them in contrast to parents. So how does the Mishnah come to weigh the relative honor due to parents and teachers?

The mishnah's response contrasts the role played by father and teacher: his father (and mother!) brought him into this world, but his teacher, who taught him wisdom, brings him into the world to come. Our biological birth, they imply, is not the only birth we experience. We enter into worlds within worlds and may, therefore, be birthed multiple times in our life. Our biological genealogy describes only one aspect of our lives. In my book, The Hillel Narratives, I detail Hillel's spiritual genealogy, which includes Moses and Ezra and leads to Akiva and Judah HaNasi. While we know his spiritual genealogy in detail, we know little of his biological background. His teachers and spiritual descendants take precedence over his biological kin.

But what qualifies a person as a teacher? The Gemara offers this range of possibilities:
“His teacher means the one who taught him wisdom, but not the teacher who taught him Bible or Mishnah; these are the words of Rabbi Meir. Rabbi Yehudah says, it means the one from whom he has learned most of his wisdom. Rabbi Yose says, Even if he enlightened his eyes about only one Mishnah, this is his teacher.”

The differences between these three sages offers some interesting reflection on what it means to be a teacher.

Rabbi Meir focuses on the quality of the learning, regardless of the amount. Why are Bible and Mishnah teachers excluded? I suspect because they were recitation type disciplines. You chanted the Bible or repeated the Mishnah to memorize the chapters and verses, but these are not analytical tasks. They do not prepare you for the unpredictable experience of daily life. Wisdom, by contrast, lays a strong foundation on which one can build an holy and honorable life which withstand the unexpected.

Rabbi Judah and Rabbi Yose do not focus on the quality of the material taught, perhaps they have no disagreement with Rabbi Meir. They disagree on whether one can have more than one teacher at a time. Rabbi Yose argues that every person who teaches you even one Mishnah becomes your teacher. You may have one or dozens of teachers. Each may have brought you one step closer to the World to Come, without any one of them having brought you the entire distance. In my own experience I count among my teachers at least one who taught me the meaning of a single letter.

Rabbi Yehudah reserves the title teacher for that one individual who has taught you the majority of your wisdom. This is the position endorsed by the halakhah; that one teacher is known by the title of “Rav Muvhak.” But there is no assurance that you will have only one such rav in your lifetime. The teacher of your youth may be surpassed as you grow older by one who teaches you even greater insights and wisdom. At any given time you will, however, have only one rav, teacher.

Pirke Avot twice counsels one to make (Hebrew, aseh) a teacher for yourself (M. Avot 1:5 and 16). It is an odd choice of words. We are assigned teachers in classrooms, we hire teachers as tutors. We encounter wise people in a variety of settings. But how do we make a teacher for ourself? I believe that the sages of our passage offer possible answers to that puzzle. Rabbi Meir looks to the quality of the teaching, those life skills that give us wisdom and allow us to navigate a confusing world. Rabbi Yose urges us to acknowledge every person who has touched our soul and taught us in a way that impacted our life. And Rabbi Judah bids us to recognize that person who is our guiding light.

Consider those who have affected your life. Who are the people who have been your teachers? In what way have they taught you the intricacies of life? Have you let them know that their teaching, formal or not, has made a difference in your life and that you consider them a teacher? The Sages taught that our teachers deserve high honor. And your teachers deserve your thanks.

© Rabbi Louis Rieser 2010

A hard heart vs. an open hand / Baba Metzia 31b (and Ketubot 67b)

Human dignity is a tricky thing. Respecting and preserving the human dignity of another soul requires us to assess someone else’s sensibilities and sensitivities. We can start with some universal truths (people like to be independent, self-sufficient, and enjoy the respect of others) but precisely what that independence, self-sufficiency, and respect “look like” and “feel like” can range widely from individual to individual. Talmud, in its far-reaching meanderings, often comes back to the sine qua non of human dignity that undergirds all of Jewish thinking and value-making. How far do our obligations extend? Where are the limits drawn?

Baba Metzia jumps into this moving river. I share with you a long passage, Deuteronomy 14:4-11, from which Talmud quotes only verse 8 (bolded below). It is curious that this passage begins with the idea vision of world devoid of poverty, and ends in the reality that poverty will never be entirely expunged from our world. While we hold aloft a vision of the ideal, we must nonetheless live and labor in the world of the real.

In Deuteronomy 15:4-11 we read about the shemittah (sabbatical year). Every seventh year, the land lies unplanted and fallow to renew itself. Debts are forgiven to permit those who have fallen into debt-driven poverty to start anew. Torah expresses the concern that in the waning years of the sabbatical cycle, people might refrain from providing loans to needy people because all loans are canceled in the sabbatical year, and provides this stern warning and exhortation:

There shall be no needy among you – since the Lord your God will bless you in the land that the Lord your God is giving you as a hereditary portion – if only you heed the Lord your God and take care to keep all this Instruction that I enjoin upon you this day. For the Lord your God will bless you as He has promised you: you will extend loans to many nations, but require none yourself; you will dominate many nations, but they will not dominate you. If, however, there is a needy person among you, one of your kinsmen in any of your settlements in the land that the Lord your God is giving you, do not harden your heart and shut your hand against your needy kinsman. Rather, you must open your hand and you shall surely lend him sufficient for whatever he needs. Beware lest you harbor the base thought, “The seventh year, the year of remission, is approaching,” so that you are mean to your needy kinsman and give him nothing. He will cry out to the Lord against you, and you will incur guilt. Give to him readily and have no regrets when you do so, for in return, the Lord your God will bless you in all your efforts and in all your undertakings. For there will never cease to be needy ones in your land, which is why I command you: open your hand to the poor and needy kinsman in your land. (Deuteronomy 15:4-11)

Talmud understands verse 8 as the case of a needy person who is loath to accept a handout. Need engendered by poverty can be alleviated by a loan. But what about a more complex case? What if a person is in need, but the need arises because he refuses to expend his own resources on his own care? (The image of Lyzer the Miser in I. B. Singer’s short story, “Lyzer the Miser and Shrewd Todie” comes to mind here. It’s a marvelous story: treat yourself and read it.) Here, the Gemara offers two viewpoints: (1) We are obligated to provide a loan to insure that the individuals basic needs are met; (2) R. Shimon says we have no such obligation; Torah speaks of precisely the case we would expect: someone without financial means to see to his basic needs.

Rather, you must open your hand and lend him sufficient for whatever he needs (Deuteronomy 15:8). I know this only of one [a poor man] who has nothing and does not wish to maintain himself [at your expense; i.e. he does not want to accept charity]. [Concerning this situation] Scripture says, you shall surely lend him sufficient for whatever he needs. Whence do I know it [that I should provide him a loan] if he possesses his own [financial resources] but does not want to maintain himself [at his own cost]? Torah teaches, you shall surely lend him. But according to R. Shimon, who maintained: If he has his own [financial resources] but refuses to maintain himself [with his own resources], we are under no obligation to him, so do we need ta’avitenu [a doubling of the verb]? Torah spoke in the language of human beings. (Baba Metzia 31b)

A far more extensive version of this discussion is found elsewhere in the Talmud, in Ketubot 67b, where the question of how to deal with someone who exhibits “need” but not “poverty” is addressed head-on. The passage is long (though well worth studying!) so I will provide part, and summarize part.

Our Rabbis taught: Sufficient for whatever he needs (Deuteronomy 15:8) [implies] you are commanded to maintain him, but you are not commanded to make him rich; for whatever he needs [includes] even a horse to ride upon and a slave to run before him. It was related about Hillel the Elder that he bought for a certain poor man who was of a good family a horse to ride upon and a slave to run before him. On one occasion he could not find a slave to run before him, so he himself ran before him for three miles.

Goodness! Are they serious? Do the words “for whatever he needs” means that each person defines his own needs and the community must meet them? What if I say I need a swimming pool, or minimally a hot tub in my backyard? Hillel was so sensitive to human dignity that he recognized that one whose fortunes had been severely diminished experienced a diminution of dignity as well, and he felt obligated to compensate, even to the extent of playing the part of a slave. Hyperbole, to be sure, but let us now lose sight of his point: poverty and affluence are, to some extent, relative; what is fixed is the notion of human dignity.

Ketubot 67b continues with a series of examples of Sages who acted on the model of Hillel until we meet Raba, who questions whether we are obligated to provide “fat chicken and aged wine” at the expense of community tzedakah funds. What seems an extravagance is justified by quoting Psalm 145:15, The eyes of all wait for you, and you give them their food in its (his) time, suggesting that God intends for everyone’s needs to be met on a case by case, individual basis. Then we arrive at a discussion of our same verse Deuteronomy 15:8, echoing Baba Metzia 31b:

Our Rabbis taught: You shall surely lend him (Deuteronomy 15:8) refers to a man who has no means and is unwilling to receive his maintenance [from the poor funds] to whom [the allowance] must be given as a loan and then presented to him as a gift. You shall surely lend him refers to a man who has the means and does not wish to maintain himself [at his own expense] to whom [the allowance] is given as a gift and repayment is claimed from his [estate] after his death, according to R. Yehudah. The Sages, however, said: If he has the means and does not wish to maintain himself [at his own expense] no one need feel any concern about him. To what, however, is the text You shall surely lend him to be applied? The Torah speaks in the language of people.

What follows are several anecdotes about Mar ‘Ukba who sought to deliver tzedakah unobtrusively, not always with great success. And then this:

Mar 'Ukba had a poor man in his neighborhood to whom he regularly sent four hundred zuz on the Eve of every Day of Atonement. On one occasion he sent them through his son who came back and said to him, “He does not need [your help].” “What have you seen?” [his father] asked. “I saw that they were spraying old wine before him.” “Is he so delicate?” [the father] said, and, doubling the amount, he sent it back to him.

Perhaps this is the resolution of the dilemma. Surely, the extreme response of Hillel – enslaving himself to meet the needs of an affluent person who fell on hard times – is more than we would expect of anyone, and surely not what the community is obliged to provide. The conversation between Mar ‘Ukba and his son, however, provides another avenue of consideration: those who seem to need more are perhaps more needy in a way we have not considered. Rather than judging, perhaps we can consider them with compassion and mercy, and thereby find the right balance. In all such cases, delicate and difficult decisions must be rendered, but if we approach people from the side of compassion, not only will our decisions be better, but we will feel better about them. And isn’t that what our passage in Deuteronomy was telling us: do not harden your heart and shut your hand against your needy kinsman.

© Rabbi Amy Scheinerman

GOING BEYOND THE LETTER OF THE LAW – BABA METZIA 30A

“Going beyond the letter of the law” is a familiar phrase, one which comes up in our current study of Baba Metzia. On a whim I googled the phrase and was surprised to find that roughly 2/3 of the hits on Google and other search sites were to Jewish sources. It made me wonder if the Jewish and general usage of the phrase matched, so I did a small comparison study.

Here are some examples of its usage in the general culture:

* Northrup Gruman posts its standards for dealing with Kickbacks, gratuities and such. They state that employees must go beyond the letter of the law to “avoid even the appearance of improper conduct in all of our business dealings.”
* Toyota in Kentucky describes its environmental commitment to the surrounding communities as going beyond the letter of the law to do more than required as part of their corporate citizenship.
* When HP was confronted by the fact that their printers were being sold by outside distributors to Iran, possibly in violation of US law, they vowed to go beyond the letter of the law to stop all such shipments.

Other examples use the phrase to indicate a desire to embrace the spirit of the law rather than focusing on its details. By contrast a column extolling the conservative-leaning Federalist Society considered the phrase a negative quality: “some judges go beyond the letter of the law, usurping the Congressional power to legislate and the Executive power to administer.”

Based on this brief survey I would suggest that in common usage the phrase refers to public efforts to be a good citizen and to act to distance one’s self from the appearance of misconduct. It addresses something greater than the details of the law. While a positive quality in most of these cases, none of them presented this to be a basic or universal value.

In Jewish tradition “going beyond the letter of the law”, lifnim mesurat hadin, is basic. Among the key passages which illustrate this phrase in Talmud is B. Baba Metzia 30a. A tale is told of the scholar, Rabbi Yishmael son of Rabbi Yosi. While walking down a road he encountered a laborer carrying a bundle of wood. The laborer stopped to rest and then asked Rabbi Yishmael for help lifting the bundle. Rabbi Yishmael, according to halakhah was exempt from doing this work which was below his status as a scholar (that’s a discussion for another time), but offered to buy the wood so the laborer did not need to carry it any farther. The deal was completed. The Talmud commends Rabbi Yishmael who could have simply declined to help, but went beyond letter of the law to purchase the goods and relieve the worker of his burden.

The gemara proves its point by examining Exodus 18:20 in which Jethro lays out a moral map for Moses to teach the people: Moses should “teach them the laws and the teachings, and make known to them the way they are to go and the practices they are to do.” The last phrase, “to do”, is interpreted as to act lifnim mesurat hadin. The implication is that going beyond the letter of the law is an integral part of living a moral life.

The gemara underscores that idea when it cites the teaching of Rabbi Yohanan. He states that "Jerusalem was destroyed because they judged there only according to the dictates of law, and did not go beyond the letter of the law.” This is a stunning charge. It means that those who limit their understanding to the letter of the law undermine both law and society. A strict reading of the letter of the law becomes instead a transgression of both law and the moral order.

The classic Torah commentators linked the concept of lifnim meshurat hadin to a few key verses. They teach that this notion is crucial to the very existence of our world.

Ramban, 13th century Spain, as part of his discussion of the verse (Leviticus 19:2) “You shall be holy because I the Lord your God am holy,” says:

This is the way of Torah…for after the warnings about the details of the laws regarding business relationships … God stated the general rule (Deuteronomy 6:18) “to do that which is right and good," that he should do that which is right and equitable and go beyond the letter of the law for the sake of pleasing his fellow.

Ramban connects this concept to the very idea of holiness. It offers us a way to emulate the Holy Blessing One.

Similarly, Rabbi Baruch Epstein in his commentary, Torah Temimah, discusses this concept in relation to Exodus 34:6, the enumeration of God’s thirteen attributes. He cites a passage from B. Rosh HaShannah that asks how God’s attributes can include both truth and mercy then explains:

Hesed, lovingkindness, means going beyond the letter of the law, while Emet, truth, is the attribute of judgment. Once the Holy One saw that it was impossible to rule entirely with pure judgment, Emet, God judged with Hesed, lovingkindness.

He cites Bereshit Rabbah 12 as proof that without the inclusion of Hesed, which he identifies with going beyond the letter of the law, the world could not exist.

According to Jewish understandings, then, to go beyond the letter of the law is both praiseworthy and necessary. More than good citizenship, it is linked to God’s nature and to the very fabric with which the Holy One created the universe.

It is not unusual for common phrases or terms to appear both in Jewish and general English usage, nor is it unusual that the meanings would differ. It helps to take a little extra time to go beyond our normal routine and explore the deeper meanings.

© 2010 Rabbi Louis Rieser

Possession Protection / Baba Metzia 29b

Mark Russell once quipped, “The scientific theory I like best is that the rings of Saturn are composed entirely of lost airline luggage.” Anyone whose baggage has been lost while traveling has probably wondered if this isn’t true. How would you feel about Martians using your stuff until you came to reclaim it? That is the subject of a discussion on Baba Metzia 29b.

For Torah, and Talmud as well, a well-ordered society revolves around the notion that, as Hillel taught, “What is hateful to you, do not do to another” (Shabbat 31a). Indeed, as Hillel taught, “That is the whole of Torah. Now go and learn.” In Baba Metzia, we learn the nitty-gritty of how that principle operates in the case of finding a lost object.

Mishnah teaches:

If one finds books [i.e. scrolls], he should read them every thirty days. If he cannot read, he should roll them. But he should not learn from them something new, and he may not read them with another person.

If he finds a suit of clothes, he should shake it out every thirty days, and spread it out for its need [i.e. for the benefit of the garment], but not for his own honor.

Silver and copper vessels may be used for their own benefit, but not [so much that they become] worn out.

Gold and glass vessels may not be touched until Elijah comes.

If one finds a sack or basket, or any object that he does not customarily take with him, he need not take it.

The general principle uniting these disparate examples is that objects in our care until the owner comes to claim them may be handled for their own sake, but not for ours. Books may be aired, clothing spread out, and vessels used, but none may be worn out or damaged. Gold and glass require no maintenance and hence should not be touched at all.

The Rabbis explore the limits of this principle in the Gemara. They recognize that when you have a lost article in your possession, it is natural to want to make good use of it, and if the use to which you put it is a mitzvah, we have conflicting obligations here: setting the lost object aside and handling it only for its own sake, and the obligation of the mitzvah that could be fulfilled through the lost object. Hence:

Shmuel said: If one finds tefillin (phylacteries) in a sack, he must have their monetary value assessed and set the money aside.

Rabina objected: [Mishnah says:] If one finds books, he should read them every thirty days. If he cannot read, he should roll them. Thus, he may only roll, but [he may not] not sell them and set the money aside.

Abaye said: tefillin can be obtained at Bar Habu [i.e. are easy to purchase] whereas books are rare.

Shmuel presumes the owner of lost tefillin would be pleased to know that his tefillin are being used to fulfill a mitzvah (commandment). Therefore, the finder may set aside their monetary value for when the owner appears to claim them, and in the meantime use them for prayer. Rabina, however, objects that tefillin are covered by the Mishnah’s prohibition against reading found books beyond a month airing out. This elicits the interesting explanation of this seeming discrepancy by Abaye that tefilling are ubiquitous – since every adult man (in his time, only men wore tefillin) required a pair for daily prayer – whereas books are rare. Hence tefillin may be used because they are easily replaced, but books may not be used because they are much harder to come by.

But what about a sefer Torah? Does it follow the rule for tefillin (it is needed on a daily basis) or does it follow the rule for books (it is rare and costly)? The Rabbis bring a baraita (a mishnaic-era teaching that was not incorporated into the Mishnah of R. Yehudah na-Nasi) that speaks of a borrowed sefer Torah because it speaks to the subject of how the scroll is to be treated while under the care of someone other than the owner.

Our Rabbis taught [in a baraita]: If one borrows a Scroll of the Torah from his neighbor, he may not lend it to another person. He may open and read it, but may not study [a subject] in it for the first time; nor may another person read it together with him. Likewise, if one leaves a Scroll of the Torah for safe keeping with his neighbor, he [the neighbor] must roll it once every twelve months, and may open and read it. But if he opens it for his own sake, it is forbidden. Symmachus said: In the case of a new [Torah scroll], every thirty days; in the case of an old one, every twelve months. R. Eliezer b. Yaakov said: In both cases, every twelve months.

The Sages, as well as Symmachus and R. Eliezer b. Yaakov all agree that a sefer Torah follows the rule of books: its preservation trumps the finder’s desire to fulfill a mitzvah through it, because it is a rare and expensive item.

R. Yehudah ha-Nasi (compiler or our Mishnah) now comments that one who borrows a sefer Torah may not turn around and lend it to another with the owner’s permission. This comment seems peculiar to Resh Lakish: wouldn’t we have known that already? We have been discussing found objects, not borrowed objects.

The Master [R. Yehudah ha-Nasi] said: If one borrows a Scroll of the Torah from his neighbor, he may not lend it to another. Why particularly a Scroll of the Torah – surely the same applies to any article? For R. Shimon b. Lakish said: Here Rabbi has taught that a borrower may not lend [the borrowed article], nor may a renter rent it [to another person]. It is necessary to state this for the case of a Scroll of the Torah. I might have said: One is pleased that a precept be fulfilled by means of his property: therefore we are informed [otherwise].

Resh Lakish tells us that the baraita specifies the sefer Torah because, although we would know that we can neither lend a borrowed object nor rent a rented object, we might have though that the owner would make an exception in the case of a sefer Torah and be pleased that a mitzvah might be fulfilled through his property. But this is not a presumption we have a right to make.

We might be surprised at this. After all, doesn’t Torah study trump the responsibility to guard a found object until the owner comes to reclaim it? Yet it is precisely Torah that confers this responsibility! How then could the learning of Torah be permitted to violate the teaching of Torah? A new twist on what John D. Rockefeller, Jr. once wrote, “I believe that every right implies a responsibility; every opportunity an obligation; every possession a duty.”

© Rabbi Amy Scheinerman

FINDERS, BUT NOT KEEPERS

“Can I keep him, Mom? He followed me home and he’s real friendly. It won’t be any trouble; I promise! I’ll take care of him. Can I keep him; can I?”

Confronted by a pleading child and a cute, tail-wagging puppy a parent must remain rational. There is more than meets the eye when this domestic drama emerges.

“You know that there is probably some worried little boy or girl wondering if their pet is okay. They love him too! And he is really a part of their family. We need to try to find his real home. For now you can take care of him while we try to find his owners. But just remember, when we find his owners you have to be brave and give him back.”

As a parent you might admire your child’s passion. Their concern and enthusiasm is not to be dismissed. This scenario, however, presents a variety of ethical considerations. Until you can find the puppy’s home you become the caretakers and there are some costs associated with that. How do you manage the balance between welcoming this cute puppy into your home and exercising your objective duty to simply serve as temporary caretakers?

Finding something of value that needs to be returned changes you. It creates a relationship between you and the person who lost the object. It is not unusual to read news reports of objects, often wedding rings, returned to their owner’s years after they are lost. For example: Boy Digs Up Long Lost Wedding Rings in Yard - wbztv.com. The finder needed to expend time and energy to find the rightful owner. The mother of the 3-year old in the story above connected with the woman who had lost the rings. She says, “I explained to her that my 3-year old son was digging outside and possibly found something that belonged to her. And she was like 'you're kidding me. Those were my rings I lost over thirty years ago.' It was amazing. I just got chills talking about it. It's amazing."

The Torah reminds us that we have an obligation to return lost objects of all kinds:
You shall not see your brother’s ox or donkey go astray and turn away; you must return them to your brother… and so shall you do for his clothing, and so for every lost object which he has lost and you have found. You must not turn away. (Deuteronomy 22:1-3)
While the Torah states our obligation, it remains for the Mishnah to provide the details.

Mishnah Baba Metzia 2:7 offers two examples of how to fulfill this obligation when you find a lost animal.
Any [lost animal] which is capable of work and which requires food can be used for labor and must be fed. And if it is not capable of work but requires food, it can be sold, since torah teaches, “you must return it to him.” Pay attention to how to return it.

The mishnah seeks to balance two competing needs. As much as you have an obligation to see after the well-being of the animal, the owner (when found) bears the obligation to repay you for the costs incurred caring for his possession.

As long as the animal is in your possession you have an obligation to care for its well-being. That can add up. In addition to the simple needs of providing food, a stray animal might require a visit to a vet if there are injuries or other concerns. The simple good deed of holding on to a lost animal for a few days can get expensive.

That is why the mishnah allows one who finds a working animal to use his labor. The animal can pay his own upkeep. (Does a found puppy earn its keep as it entertains your children?) When it works, there are no significant extra costs incurred by the finder and the one who lost the animal can retrieve his property without needing to pay a large penalty.

Which leads to the second case in the mishnah (And if it is not capable of work but requires food, it can be sold), which sounds so harsh. If you found a lost animal, would you look to sell it on the open market? When you look under the “lost and found” category on Craigslist you will not find items listed for sale.

What happens, the Mishnah wonders, if the care you provide for a lost animal exceeds its objective worth? What if you have spent a lot of money for food and materials by the time you find the owner, but the total amount is more than the animal is worth? What if the owners respond that they don’t have the expendable cash to repay that amount for an animal they can replace for free from the shelter? Recognizing that there may be an objective value for this animal the Mishnah allows the finder to sell it so he can return a full value to the owner, rather than run up an unreasonable bill that will need to be paid. In real life I would find it a difficult decision to sell someone else’s possession and convince them it was in their own interest for me to do so.

Dealing with lost animals is only once instance of this rule, of course. The mishnah (Baba Metzia 2:1-2) details objects that must be returned because they have distinguishing marks, such as wedding rings, and objects with no identifying marks, such as coins, that do not need to be returned.

None of this is obvious. The common wisdom, “finder-keepers, losers-weepers,” suggests any lost object is fair game, but ignores the truth embedded in the Torah that the loser is our brother. A relationship exists between the one who finds and the one who loses. The one who finds a lost puppy can imagine the sorrow of the one who lost their pet. Since the Torah recognizes the implicit relationship that exists between finder and loser, it teaches we have a positive obligation to return lost objects.

PS. For a longer, more legal look at this principle, look at this related article:
Jewish Law - Articles - Finders Keepers? First Impressions ...

© 2010 Rabbi Louis Rieser

It doesn't have to be a "finders keepers losers weepers" world / Baba Metzia 58b

My husband lost his iPod at the airport in Dan Diego several months ago. It was returned within 10 minutes, even before he knew it was missing. The finder turned on the iPod, found my husband’s name and cell phone number, and called him. This is the ideal: a finder who is scrupulously honest, and a claimant who can easily identify his lost property because of its distinctive characteristics. But in truth there is much room for lies and deception in the matter of lost articles, and Mishnah seeks to find the limit to responsibility and the boundary for presumption of deception.

But first, Torah tells us it should not be a “finders keepers losers weepers” universe: If you see your fellow’s ox or sheep gone astray, do not ignore it; you must take it back to your fellow If your fellow does not live near you and you do not know who he is, you shall bring it home and it shall remain with you until your fellow claims it; then you shall give it back to him. You shall do the same with his ass; you shall do the same with his garment; and so too shall you do with anything that your fellow loses and you find: you must not remain indifferent. (Deuteronomy 22:1-3)

Torah is trying to build a societal culture of consideration in which people go out of their way to take care of one another as they would want others to do for them. But how much is it reasonable to require, and at what point is so much required that people are unwilling to comply? Mishnah seeks to examine those boundaries, and in so doing reveals the inherent danger of our assumptions about human nature.

The first half of Mishnah Baba Metzia 2:7 is found on daf 28b:

If [the claimant] said what the lost article is, but did not [describe] its identifying marks, it should not be given [to the claimant]. If he is a deceiver, even if he says what the identifying marks are, it should not be given to him, as it is written, until your fellow claims it (Deuteronomy 22:2)[meaning] “until you examine your fellow [to determine] whether or not he is a deceiver.”

If I stand out in the middle of the town square to proclaim that I have found a lost article, what should I say? Should I simple say, “I found something!” and wait to see who lost it? Should I say what I found? If I say what I found, should I describe identifying marks (e.g., “I found pitcher’s mitt with a red stain on the inside near the thumb” or “I found a Nokia cell phone with a neon-orange cover”) or should I simply say, “I found a pitcher’s mitt” or “I found a cell phone” and require the claimant to provide details – such as the red stain or the neon-orange cover – to prove he is the rightful owner? How much do we trust people to be honest and not claim items that are not theirs because the lost-and-found bin strikes them as a treasure-trove of free stuff?

Mishnah first attempts to balance the benefit of having people return found items, with the concern that false claimants may appear. Claimants are required to articulate identifying marks to establish their rightful claim. But then concern is expressed about those who would cheat and deceive the finder: how do we handle this possibility? We don’t want to hand over valuable items to such people, and thereby deprive the rightful owner from reclaiming his property. Here the amoraim of the mishnah offer us Dt. 22:2 with a new twist: “until our fellow claims it” is read “until you examine your fellow to determine whether or not he is a deceiver who claims it.”

But how do we know if someone is a deceiver and a cheat? Is this something revealed by previous experience? Or must we examine each and every claimant? Moreover, do we presume people are honest? Or do we presume a priori that their motives are suspect?

Gemara explores this conundrum. If we hand over a lost articles to someone, we might well be giving away something to a deceiver, and depriving the rightful owner of his property. Yet what is the social cost to presuming people are deceptive and should be examined as to their honesty in each and every case? Gemara offers a curious anecdote that delivers a stern warning about prejudging people:

Our Rabbis taught: At first, whoever lost an article would articulate its identifying marks and take it. When deceivers increased in number, it was enacted that he should be told, “Go and bring witnesses that you art not a deceiver, then [you may] take it.”

It once happened that Rav Pappa's father lost a donkey, which others found. When [the father of Rav Pappa] came before Rabbah bar Rav Huna, he told him, “Go and bring witnesses that you are not a deceiver, and [then you may] take it.” So he [the father of Rav Pappa] went and brought witnesses. [Rabbah bar Rav Huna] said to them, “Do you know him to be a deceiver?” “Yes,” they said. “I, a deceiver?!” [the father of Rav Pappa] exclaimed to them. “We meant that you are not a deceiver,” they answered him. “It stands to reason that one does not bring [witnesses] to his disadvantage,” said Rabbah bar Rav Huna.

When Gemara says, “When deceivers increased in number” we might think that someone had examined crime statistics and determined that there is objective truth to this observation. Perhaps in the aftermath of the destruction of the Second Temple and the impoverishment of the Jewish community in Eretz Yisrael, this was the case, but the Gemara was written in Babylonia where the Jewish community was not uniformly impoverished. Moreover, Rabbah bar Rav Huna, the early fourth century amora (d. 322 C.E.) was wealthy in his own right, the owner of fields and forests from which he made his living (Baba Metzia 108a) and he headed an academy in Sura (though, it seems, not the primary academy which his renowned father, Rav Huna, had led).

What is clear is that Rabbah bar Rav Huna assumes the worst of people: they are deceivers until proven otherwise. Hence he requires that even a well-respected man, none other than the father of Rav Pappa, bring witnesses who will attest to his character. And when Rav Pappa’s father does this, Rabbah bar Rav Huna asks his question in such a contorted and negative manner that the witnesses inadvertently testify against the character and integrity of Rav Pappa’s father. They expect Rabbah bar Rav Huna to ask, “Do you know him to be an honest man?” and so the response “Yes” rolls right off their tongues. But this is not how Rabbah bar Rav Huna formulates the question. He asks, “Do you know him to be a deceiver?” The father of Rav Pappa, listening carefully to the exchange, is astonished. He expresses his bewilderment, at which point the witnesses realize what has happened and immediately change their testimony. They have been deceived, and it turns out that Rabbah bar Rav Huna is the deceiver.

Did this happen due to the particular temperament of Rabbah bar Rav Huna? Talmud knows him as a modest man who treated those beneath him in learning and social status with consideration and respect. His treatment of the witnesses brought by Rav Pappa’s father strikes us as completely out of character. Could this be Gemara’s warning that deception is a contagion? When we perceive others as deceptive-until-proven-otherwise, as the Mishnah could be construed to suggest, then we fall into the trap of presuming everyone is a deceiver, and therefore resort to deceptive means to reveal their deceptive ways? When that happens, basic trust is undermined, and indeed “deceivers increase in number.” If, however, we presume that everyone will turn on the iPod in order to locate the owner, we spread the contagion of integrity, and build the society of decency we envision.

© Rabbi Amy Scheinerman

CONCLUDING THOUGHTS – SOTAH 49B

The end of this tractate is unusual for two reasons. First, while the Mishnah generally is ahistorical, this passage focuses on the losses caused by the successive revolts against Rome. Second, in contrast to other tractates, this tractate does not end with a nechemta, words of consolation or uplift .

David Kraemer notes the Mishnah’s typical silence on the destruction of the Temple, the conversion of Jerusalem to a pagan city, and the Bar Kokhba rebellion.
“Given the historical context in which this document was produced, we should expect to find in it significant responses to the events of the day. Yet, carefully as we might look… there is little in the Mishnah that relates to history at all. But it is not only the silence that startles, Equally surprising is the fact that, despite the destruction of the Temple 130 years before, a major proportion of the Mishnah’s laws is devoted to the Temple…” (Responses to Suffering in Classical Rabbinic Literature, pg. 53)
So the direct mention of the destruction of the Temple and the loss of the sages at the end of this tractate is striking.

The last mishnah of the tractate records the decrees that followed the unsuccessful revolts:
“In the war against Vespasian they decreed against the wearing of wreaths by bridegrooms and against the wedding-drum. In the war against Titus they decreed against the wearing of wreaths by brides and that a one should not teach Greek to his son. In the last war [Bar Kokhba’s] they decreed that a bride should not go out in a palanquin inside the town. But our rabbis permitted it. (B. Sotah 49a)
The very last passage of the tractate (less two sentences) laments the death of 13 notable sages of which these are the last several entries:
“When Ben Azzai died, diligent students came to an end. When Ben Zoma died, exegetes came to an end. When Rabban Simeon ben Gamaliel died, the locust came and troubles multiplied. When Rabbi died, troubles were doubled. When Rabbi died, modesty and fear of sin came to an end. (B. Sotah 49b)

These closing passages, which account for one-third of the last chapter, mark over 40 losses of the kind cited above. Institutions were lost, sages were killed, virtuous behavior disappeared while social, ethical and natural troubles increased. One feels the weight of a community in dissolution.

Considering the tractate as a whole, I realize that this conclusion had been foreshadowed at the beginning. In a sense the entire tractate is a metaphor; the ritual of the Sotah, the unfaithful wife, is the story of the unfaithful people. The ordeal of the bitter waters is paralleled by the Roman destruction.

On the first page of the tractate we learn that marriages are rooted in the very fabric of Creation.
“Rabbi Judah said in the name of Rav: Forty days before the creation of a fetus a Divine Voice goes forth and declares that this child is designated for that one. (B. Sotah 2a)
They are holy, as is our own covenant with the Holy One, conceived before Creation and sealed by the Torah.
“Six things preceded the creation of the world. Some were actually created; others merely arose in God’s mind. These are they: Torah and the Throne of Glory were created, the Patriarchs, Israel, the Temple and the Name of the Messiah only arose in God’s thought. (Genesis Rabbah 1:4)
The bond of marriage, like the covenant between Israel and God, is a holy creation that sustains the world.

Rabbi Hisda, however, voices a warning early on. At first it sounds like he is only commenting on family dynamics:
“Rabbi Hisda taught, “Unfaithfulness in the house is like a worm in a sesame plant.” And Rabbi Hisda said, “Temper in the house is like a worm in the sesame plant.”
The continuation of his teaching, particularly when read against the background of the closing passage of the tractate, clearly draws the parallel with the fate of the nation.
“In the beginning, before Israel sinned, the Divine Presence rested on every one of them, as it says, (Deuteronomy 23:15) For the Lord your God walks with you within the camp… Once they sinned, the Divine Presence separated from them, as it says, (Deuteronomy 23:15) Lest He see some unseemly thing in you and turn away from you. (B. Sotah 3a)
The discussion of the Sotah, the unfaithful wife, lends itself to the discussion of the destruction of Jerusalem, the Temple and all that it stood for.

Given the arc of its discussion, what nechemta, consolation, could be offered at the end of this tractate? By all accounts the devastation caused by Rome in response to the Jewish Wars was massive. The Temple would not be rebuilt. The loss of Jerusalem turned out to be permanent, reinforced by the Emperors Vespasian, Titus, and Domitian; and eventually sealed by the ascension of Christianity after the conversion of Constantine. There was little to lift one up after so great a loss.

Similarly they did not have recourse to the great Sages who brought Torah forward into the new, post-Destruction age. Rather they lamented the deaths of the great sages and with each of them the loss of that sage’s particular skill or virtue. They recounted the spreading disaster; the growth of natural, social and ethical troubles.

The last two lines of the tractate sound odd to me given the long list of losses that precede them, but they may be the only possible nechemta. The last sentences come in response to the Mishnah’s assertion that when Rabbi [Judah Ha-Nasi] died, modesty and fear of sin came to an end.
“Rabbi Joseph said to his Tanna [the one who repeated received traditions], “Do not include the word ‘modesty,’ for I am still here.” Rabbi Nahman said to his Tanna, “Do not include the words ‘fear of sin’ for I am still here.”
In response to the tremendous loss and devastation, the decimation of the population and the death of so many Sages comes a modest ani, I am here, which echoes the response of Abraham when God first called; hineni, here I am. Rabbi Joseph and Rabbi Nahman stand firm in the face of devastation. I hear in their response the power of one person to resolve to carry on the tradition. It is a stance of courage, a singular commitment that preserves our tradition.

© 2010 Rabbi Louis Rieser

Special feature: Midrash Mosaic

In response to Rabbi Rieser's posting of April 15, 2010, Rabbi Ruskin mentioned a mosaic she created. Here it is above. In Rabbi Ruskin's words, the mosaic illustrates the midrash, "'Shall we make a human?' Rabbi Simon teaches that when the Holy One came to create the first Human Being the Ministering angels formed groups. Hesed (lovingkindness) and tzedek (justice) voted in favor of our creation while peace and truth voted against. God broke the tie and human beings came into being. The version I illustrated in my mosaic ends with God breaking the tie by casting Truth to the ground. Thus is Truth scattered over the face of the earth and over the face of our lives. Our task then becomes the seeking and elevating of Truth. 'Attention must be paid' to this ultimate Truth: that each human life is of value, that each of us has the potential for chesed, tzedek, and shalom. And "attention must be paid" to the other truth: that we must be constantly struggling with the yetzer ha-ra luring each of us away from chesed, tzedek, and shalom. Not exactly the point of this piece of Gemara, but on my mind as I observe human behavior around me and the challenges within me."

The value of a human being / Sotah 46a

I have a close friend who does not have children, and who is offended by the rabbinic claim that God commanded procreation. The Rabbis based their claim on Genesis 1:28, God blessed [humanity] and God said to them, “P’ru u’r’vu / Be fertile and increase, fill the earth and master it; and rule the fish of the sea, the birds of the sky, and all the living things that creep on earth.” I have come to believe that the Rabbis’ decision to read this verse as a prescription, rather than descriptive, is mistaken and deeply problematic. Chapter 1 of Genesis is riddled with phrases that are grammatically similar but pertain to land and ocean, plants and animals, none of which can be “commanded” in the sense of a divine obligation. Rather, Genesis 1:28, like all the other similar expressions in the chapter, is describing God’s creation of a self-sustaining universe – which is astounding enough!

The Rabbis knew their claim was problematic. Requiring women to engage in a life-threatening activity runs counter to Jewish law. So they exempted women (Mishnah Yebamot 6:6 is appended to the end of this blog posting). But how many men can reproduce without a woman? Catch 22.

Masechet Sotah, in chapter 10, discusses the eglah arufah, the calf who is decapitated as part of a ceremony required by Torah (Deuteronomy 21) when a person is found murdered, but the perpetrator is unknown. The elders of the city closest to where the corpse is discovered convene in a valley (presumably at the site of the murder) and recite a formula disavowing responsibility for the murder that took place: “Our hands have not shed this blood, neither have our eyes seen it.” The Gemara is quick to reinterpret this to mean not – heaven forbid! – that the elders could possibly have committed the murder, but rather that the elders did not fail to offer the man food, nor fail to provide him an escort through dangerous terrain (Sotah 46b).

You might well be wondering: why decapitate the calf at all? How does this atone for the murder? We find a remarkable answer offered, rejected, and reworked:

R. Yochanan b. Shaul said: Why does the Torah mention that he should bring a heifer into a ravine? The Holy One, blessed be God, said: Let something that has not produced fruit [i.e. has never given birth] be decapitated in a place which is not fertile, and atone for one who was not given [the opportunity] to produce fruit. What “fruit” mean? If I say “offspring,” then according to this argument we should not break a heifer's neck if [the person found dead] was old or castrated. Therefore [we understand “fruit” to mean] commandments. (Sotah 46a)

I find the three parallels (murder victim, calf, location of murder/ceremony) breathtaking. Because the murder victim will be unable to “produce fruit” (i.e. father children), we decapitate a calf that itself has never given birth, and the ceremony takes place in a valley that has born no “offspring” (i.e. where no crops can grow because it is a harsh, rocky environment).

R. Yochanan’s explanation highlights the murder victim’s loss of opportunity to have children, suggesting that this is the most tragic aspect to his death. The emphasis on reproduction – indeed the elevation of reproduction to a divine commandment – jumps immediately to mind. Is this the most important thing lost when a person is murdered? As the biological parent of four children, I certainly appreciate the value of procreativity, but is this capacity (which to my mind is a blessing) the most important aspect of me, or anyone else? One is reminded of the famous mishnah found in Sanhedrin 4:5:

For this reason was a single man created: to teach you that whoever destroys a single soul in Israel, Scripture imputes [guilt] to him as though he had destroyed an entire universe. And whoever saves a single life in Israel, Scripture credits him with having saved an entire universe. (Sanhedrin 37a)

While this homiletical and ethical teaching references procreation – the first man Adam is regarded as the progenitor of all humanity – this is not the same thing as saying that the essential worth of a human being is encapsulated in his/her ability to reproduce. Rather, it expresses the immense worth of a human being.

The Gemara asks this question, as well, by posing a legalistic question: would we dispense with the ceremony if the murder victim were old (and therefore beyond the age of procreativity) or castrated (and hence incapable of reproducing)? It is a rhetorical question because Torah commands the ceremony whenever someone is slain and the murderer is unknown. Gemara’s answer is wonderful. What is lost is the person’s mitzvot – all the good things he would have done, all the divine obligations he would have undertaken, all the ways he would have lived in response to God have been lost irrevocably. An image of God has perished, stolen from humanity and from God, and all that the victim would have done and could have become has tragically been lost. This interpretation of “fruit” raises it to a much higher, more humane, and indeed holier level.

Addendum: for those interested, here is Mishnah Yebamot 6:6. (It is worthwhile to examine the discussion on Yevamot 65b–66a where a significant minority express discomfort with the exemption of women.)

No man may abstain from keeping the law, Be fertile and increase (Genesis 1:28), unless he already has children: according to the School of Shammai, two sons; according to the School of Hillel, a son and a daughter, for it is written, Male and female God created them (Genesis 5:2). If he married a woman and lived with her ten years and she bore no child, he is not permitted to abstain [from fulfilling this legal obligation]. If he divorced her, she may be married to another and the second husband may live with her for ten years. If she had a miscarriage the space [of ten years] is measured from the time of the miscarriage. The duty to be fruitful and multiply falls on the man but not on the woman. R. Yochanan b. Baroka [dissents from this view and] says: Of them of both it is written, God blessed them and God said to them: “Be fertile and increase” (Genensis 1:28).

© Rabbi Amy Scheinerman