Friday, March 8, 2013

Spilling soup on someone to stop bitul Torah: Rav Zilberstein

Rav Yitzchok Zilberstein (Bava Kama 28a): Question: Reuven was preventing Shimon from learning Torah. Shimon went and spilled a plate of soup on Reuven’s jacket and stained it. Is Shimon obligated to pay to clean it? Answer: It says in Shulchan Aruch (C.M. 420:13) concerning two people who beat each other... however if one of them starts the fight the second one is exempt. That is because the victim has the option of fight back in order to save himself. The Rema there adds that this is true also for verbal and emotional abuse - the one who starts is obligated to pay a fine. Furthermore the Terumas HaDeshen (#218) writes that whenever you have a situation of having subordinates then it is correct to hit the subordinate to stop them from sinning. If so then it would seem that surely Shimon was the right to hit Reuven to stop him from interfering with his Torah learning. Also look at Yam shel Shlomo (Bava Kama 3:9) who writes that it is not only in the case of a master and his slave or a husband and his wife but the law is the same for any Jew who is able to hit someone to stop him from sinning. This is mentioned in Erchin (16). Therefore it is permitted to hit others to stop any sin. However this is only if his intent is for the sake of Heaven and he is firmly established himself as sterling example of Torah Jew. The Teumim (4:1) brings the words of the Yam shel Shlomo and simply says that it is permitted to stop all Jews from sinning. Therefore it would appear that it is permitted for Shimon to spill soup on Reuven’s jacket.

Also relevant is Gittin (7a) where Mar Ukva sent a message to Rabbi Eliezar that he was being harassed and he had the ability to stop it by reporting it to the police. He wanted to know whether he should. Rabbi Eliezar wrote back and told him to be silent in the face of harassment. Then Mar Ukva sent a second letter say that they are really tormenting him and he can’t stand it anymore. Rabbi Eliezar told him the solution was to be silent but to go the beis medrash morning and evening and his tormenters would be stopped. The Chasam Sofer explains according to the understanding of the Pnei Yehoshua that if he put up with it then he should not go to the beis medrash and to give the problem over to G‑d. It is only when he couldn’t tolerate it anymore that he was permitted to go morning and night to the beis medrash. However if the torment caused lost time from Torah and prayer then it would be permitted to turn the problem over to G‑d and is what Dovid did.

However in reality in our case, my brother‑in‑law Rav Chaim Kaniefsky did not agree with me. He said that we only find that it is permitted to hit someone to stop him from sinning but we don’t find that it is permitted to damage his property. However it would seem logical that if it is permitted to hit a person than surely it would be permitted to cause him monetary loss. However this can be understood by the words of the Igros Moshe (C.M. 1:3). If the purpose of hitting another is to stop him from sinning and to do mitzvos then this is not included in the prohibition of hitting others. This can also be learned in the Rambam (Hilchos Chovel 5:1) who writes according to our text that if one hits another in the context of fighting then it is transgression of a Torah law. This implies that if the hitting is not in the form of fighting then there is absolutely no prohibition against it. The reason is the prohibition of hitting is described in a verse about flogging a sinner. The verse says not to hit beyond the prescribed number because that would make the blows in the category of fighting but there is no way that the additional blows can be considered stopping someone from sin or to do mitzvos. Consequently a father can beat his son in order to educate him because this is not fighting. This clearly indicates the parameters of the prohibition of hitting. However in regards to financial damage – we don’t find that it is permitted in order to stop a person from sinning. Furthermore the prohibition of financial damage is learned from the prohibition of stealing as we see in the Tur (C.M. 378). It says there that just as it is prohibited to steal from another it is also prohibited to damage his property. Furthermore stealing is also prohibited from a non‑Jew and surely from a sinful Jew. That seems to be the explanation of my brother‑in‑laws words. Thus we need to look further into the matter of whether it is permitted for Shimon to damage the jacket of Reuven.

 Update:Friday March 8
 Rav Zilberstein seems to miquote the Chasam Sofer or at least leaves off the end where he in facts answers the question. The Chasam Sofer in the name of Pnei Yehoshua would apparently permit throwing soup if this was the only way to stop his harrasser.
Chasam Sofer (Gittin7a)

Chasam Sofer (Gittin 7a): However while it seems obvious to the Rambam that if one verbal harasses a community it is permitted to report him to the government – the commentaries don’t show the sources of this ruling. It must be that this ruling is learned from this gemora. It would seem that if hadn’t been for the fact that Mar Ukva had a solution to the harassment problem by going to the study hall it would have been permitted to report his assailants to the secular government. However this solution is only relevant for an individual. But it is not relevant for the community and therefore it is clearly permitted to report the community nuisance to the government. Also see the Pnei Yehoshua’s discussion of this gemora where he says that the solution of going to the study hall and complaining to G d about the assailant is not correct if one can stop the harasser in other ways. However he says if the harassers cause him to waste time from Torah and prayer because of his upset he can stop the harassers in any manner…

7 comments :

  1. Quote from the article:
    "However this is only if his intent is for the sake of Heaven and he is firmly established himself as sterling example of Torah Jew."

    I believe that now-a days none of us can presume that we mean something totally leshem shomayim and are sterling examples of Torah Jews.
    I think ignoring this piece is dangerously arrogant, and very disturbing.

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  2. A couple of points:
    * You appear to take the position that Shimon is trying to prevent Reuven from being oiver on the issur of Bitul Torah. However, from the way the case was presented, it appears to me more likely that Shimon poured soup on Reuven so that Reuven would not prevent Shimon from learning. In other words, Shimon is not concerned for Reuven's neshomo - he is concerned about his own learning.
    If so, we could say that since a person who is trying to save his own life has to pay for any damages while running from a pursuer, so too, Shimon would have to pay for any damage he caused Reuven while in his (Shimon's) attempt to learn.
    In addition, I don't think that Reuven would be considered a rodef here, because the application of rodef is limited to murder and gilui arayos.
    I also don't think that the din of taking the law in your own hands is applicable here, because the halocho is only that you can stop the person from doing more damage - but not to the point of injuring him physically or monetarily.
    * Regarding your quote of Rav Chaim Kaniefsky "that we only find that it is permitted to hit someone to stop him from sinning but we don’t find that it is permitted to damage his property." I find it very interesting, because, supposedly, Rabbi Kaniefsky paskened recently that it is permissible (and according to others required) to break the iPhone of another Jew, and the one who breaks it does NOT have to pay. I find this psak particularly troubling.
    As someone who is connected to a Yeshiva for modern American boys on the fringe, I know that the Hanholo received a psak many years ago that the dorm counselor must confiscate and destroy pornographic material found in the dormitory - but that the Yeshiva must compensate any student who demands payment for the property that was destroyed.
    This psak seems very logical. If you want to help someone else's ruchniyus against his will, then you must be willing to pay for any monetary damage you cause.
    Bottom line - I can see how you may permit Shimon to spill the soup on Reuven, but I cannot see how you may then exempt Shimon from paying for the damage, including the embarrassment he caused.
    As far as Shimon's tzidkus goes, I would ask Shimon what Reuven's agenda is, and why Reuven is preventing him from learning. Perhaps it would be a chessed to listen to Reuven or pay attention to him. Certainly he should be dan Reuven licaf zechus that his intent is not to prevent anyone from learning. If this is true, then perhaps Shimon has a chiyuv to be mevatel his learning in order to do this chesed.

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    Replies
    1. excellent points

      Regarding rodef - the Chinuch and others disagree with you. the Chinuch explicitly learns defense against verbal abuse from the din of rodef.

      Chinuch (#338): ...However it would seem that despite the fact that verbal abuse of others is prohibited, one should not conclude that if one Jew came and wickedly verbally inflicted pain on another Jew that the victim should not answer him. That is because it is impossible that a person should be like a stone which has no one to turn it over. Furth more if the victim remains silent it would imply that he agrees with the insults. In truth the Torah does not command that a man be like a stone which remains silent in the face of those who insult him as he would in the face of those who bless him. Rather the Torah commands us to stay far away from this type of behavior and not to initiate quarrels and insult people. If he is not a quarrelsome person he will be saved from insults. That is because one who doesn’t get into fights is generally not insulted by others except by total fools - and one should not pay attention to fools. [...] We learn that it is permitted to answer a fool apparently from the fact that a person is permitted to kill a robber who has broken into his home. That is because there is absolutely no doubt that a person is not obligated to tolerate harm from another but rather has the right to defend himself. Likewise concerning verbal abuse which contains cunning and deceit, he is permitted to save himself with every manner with which it is necessary to save himself.

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    2. In addition Rav Zilberstein seems to miquote the Chasam Sofer. where the Chasam Sofer in the name of Pnei Yehoshua would apparently permit throwing soup if this was the only way to stop his harrasser.

      However while it seems obvious to the Rambam that if one verbal harasses a community it is permitted to report him to the government – the commentaries don’t show the sources of this ruling. It must be that this ruling is learned from this gemora. It would seem that if hadn’t been for the fact that Mar Ukva had a solution to the harassment problem by going to the study hall it would have been permitted to report his assailants to the secular government. However this solution is only relevant for an individual. But it is not relevant for the community and therefore it is clearly permitted to report the community nuisance to the government. Also see the Pnei Yehoshua’s discussion of this gemora where he says that the solution of going to the study hall and complaining to G d about the assailant is not correct if one can stop the harasser in other ways. However he says if the harassers cause him to waste time from Torah and prayer because of his upset he can stop the harassers in any manner…

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    3. Thank you for pointing out the Chinuch to me. However, is this called verbal abuse? I don't think so, but we really need more information about the case before we can discuss some of the issues.

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  3. To be Mazik someone else is a Lav d'Oiraisa,
    Bodily injury is pen yoisif,monetary damage is bal tashchis,plus other isurim.
    None is allowed, for the purpose of what is classified today as bitul torah.
    The concept of bitul Torah , because someone is not b' Torah in a certain timeframe is an invented term, which is not in the Talmudic tradition, meant in such extreme terms.

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  4. What was a plate of soup doing in the beit hamedrash in the first place? Every place of learning (be it for limudei kodesh or at med school) that I have ever attended specifically banned bringing food or drink into the room.

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