Saturday, August 18, 2007

Abuse - reporting exempts from responsibility?

R' Pinchos Yehoshua HaKohain wrote:

Dear Rabbi Eidensohn,

I would like to follow up on some Shakla v'Tarya from 13 July. (It is copied below). I would like to present 3 points:
1) Shomer SheMosar L'Shomer is not applicable here.
2) It is a case of Hashovas Aveida
3) What are the parameters of Hashovas Aveida and how they would apply in our context.

1) Shomer SheMosar LeShomer would not seem to be applicable here.

Either according to Abaye, that the reasoning is because "Ain Reztoni SheYehe Pikdoni b'Yad Acher" or whether according to Rovo that it is because of "At M'Hemnis Li b'Shevuoh, v'Haich Lo M'Hemnis Li", b oth reasons see that the underlying principle is a contractual agreement (a shibud) that binds the shomer, because of the contract undertaken, with the owner of the property. In our situation there has occurred no contractual arrangement between the victim and his erstwhile rescuer/interventionist.
Whether there is an Isur aspect of "Osur L'Shomer Limsor l'Shomer" is discussed in the Acharonim - please see Aruch haShulchon 291:45,46 and Pischei Choshen vol 2, 4:1:1). B ut even if there is an Isur aspect, it flows from being "Maavir Al Daas Baalim" - a Gezel/Gneiva parameter which would not be applicable in our scenario in a strictly Halocho legal sense. (Musar/ethical/moral considerations need to be considered separately)

The following sources and analysis, I believe,support this position:

the position of the Rav Shulchon Aruch(Hilchos Aveida uPikadon #32 quoted by Pischei Choshen, Aveida 6:4) and Halacha Berura 5:12 (lost & found II, between footnote #7&8), both hold that Aveida in all circumstances has no restriction of Osur l'Shomer LiMsor l'Shomer; The reasoning of Rav Shulchon Aruch is, "Hashem made him a shomer; NOT the Baalim"
The source for the Rav Shulchon Aruch is most probably the Rashbo (Teshuvos Vol 4 #254 quoted in Bais Yosef CM 235 immediately preceding note #10 of Darchei Moshe). The Rashbo clearly states the principle that obligations of Hashovas Aveida operate independently of Dinei Shomer. Rav Shulchon Aruch based on the 2 principles in Hashovas Aveida of 1) Mishtamer (discussed below) and 2) no necessity of Daas Baalim, extends this to mean that another trustworthy person can take over as Shomer.

The Machne Efraim (Shomrim #14, also quoted by Pischei Choshen) understands and applies this Rashbo even in a case where there is an actual cheftzo and chiyuv tashlumin is in question. He holds that a scenario is possible that 1) I could have your object in my jurisdiction, 2) I am, nevertheless, totally exempt from any Shomer responsibility but 3) nevertheless Hashovas Aveida requires me to keep it "Mishtamer".

One could conjecture that by extension, It would appear that Machne Efraim, a fortiori, concurs with Rav Shulchon Aruch that the Aveida object could be transferred to another Shomer; but after reflection we realize that the 2 opinions are not interwoven. Indeed in the unique scenario of the Machne Efraim he would hold that there is no chiyuvei shomer and consequently it could also be transferred to another shomer but that does not necessarily means that he would agree in all other cases with the Rav Shulchon Aruch's chidush.

The only thing we can definitely extract from the Machne Efraim's position is that he is in agreement with the Rashbo's principle that obligations of Hashovas Aveida operate independently of Dinei Shomer.

Likewise the Rav Shulchon Aruch does not agree with the Machne Efraim. Even though he holds that another Shomer can be appointed in the finder's stead, he does not agree to exemptions from other chiyuvei Shomer. This I believe is apparent from his formulation of Halocho in Hilchos Aveida uPikadon # 29

The Nesivos CM 291:3 strongly disagrees with the whole premise of the Machne Efraim. He maintains that it is absurd to posit that your object is in my jurisdiction and concomitantly there are no Chiyuvei Shmira -ie every object Aveida situation ipso facto also incurs shomrim obligations. It would appear that the Nesivos not only disagrees with the Machne Efraim but even with the Rav Shulchon Aruch as well for the same reason. (Hoewever, The Raayos that the Nesivos adduces from the Yerushalmi and Maharit are neutralized by the refutations proffered by the Machne Efraim and ShuT Ein Yitzchok (EE #78 anaf 2)

Nevertheless, I believe that in a scenario of Hashovas Aveida that does not pertain to a cheftzo but is only a Chiyuv m'Gavra l'Chaveiro that the Nesivos will agree to the premise of the Rashbo that obligations of Hashovas Aveida can be operative even though there are no Dinei Shomer. I assert this based on the discussion of the Nesivos himself, in regards to how the Mitzvo obligation interplays with the Chiyuvei Shmira insofar as to whether the Pruta d'Rav Yosef applies to modify the status re: Shomer Chinum or Shomer Sochor. I believe this indicates that even according to the Nesivos the Mitzvo is operating independently, just superimposed upon the Shomer Cheftzo platform.

In summary:

Rashbo -obligations of Hashovas Aveida operate independently of Dinei Shomer.
Rav Shulchon Aruch - by all Aveidos there is no restriction of Shomer SheMosar l'Shomer.
Machne Efraim - Rashbo's principle exempts, in certain scenarios, even Chiyuvei Tashlumin of an erstwhile Shomer.
Nesivos: - Disagrees with Machne Efraim in scenario where there is an actual Cheftzo.
- States no opinion re: Rav Shulchon Aruch's Chidush
- No opinion stated in regards to Hashovas Aveida sans Cheftzo

in a scenario of Hashovas Aveida that does not pertain to a cheftzo but is only a Chiyuv m'Gavra l'Chaveiro;that obligations of Hashovas Aveida operate even though there is no Shomer and no Dinei Shomer

2) It is a case of Hashovas Aveida
while indeed the Gemoro Sanhedrin 73a, on its own, would seem to be inconclusive as to whether according toits Maskono rescuing from danger still falls under Hashovas Aveida or not, we could entertain

3 approaches:
A - that the whole Mitzvo and obligation derives from Lo Saamod alone
B - that the basic Mitzvo derives from Hashovas Aveida. just certain aspects and details that intensify and magnify the obligation are derived from Lo Saamod
C - both pesukim are necessary; neither one has a greater intrinsic revelation over the other, but m'Yitura d'Kro. (This 3rd approach is nevertheless still consistent with the premise that Hashovas Aveida is still operable)

It appears to me that the overwhelming majority of Rishonim and Poskim accept the second approach:
1) Ramban in Toras ho'Odom (quoted anonymously almost verbatim by Tur YD 336)
2) Tur YD 336
3) Ritvo (in Chidushim) Yevomos 106a
4) Nemukei Yosef ibid quotes Ritvo and doesn't dispute
5) Meiri (Sanhedrin) hashovas aveida is the minimum obligation and Hashovas Gufo is Kal voChomer from Momono.
6) Sm''a CM 426:1
7) Chochmas Shlomo 426
8) Shulchon Aruch YD 336 seif 2&3 - the underlying principle is V'Hasheivoso not Lo Saamod. see Shach, Taz & Gro #7&12
9) Ran in Chidushei Sanhedrin ibid -(both pesukim are necessary; neither one has intrinsic revelation over other and m'Yitura d'Kro. (This is the 3rd approach mentioned above. as mentioned above, it is nevertheless consistent with the premise that Hashovas Aveida is still operable)

the raaya that I had tersely alluded to in my email of 5 weeks ago, is the fact that concerning Nedorim, the Mishna (halacho) permits, in a madir/mudar situation, to nevertheless administer Refuah as long as there is no external benefit other than that of providing the refuah itself. The Rambam and Bartenura, both adduce v'Hashevosa as the source - not Lo Saamod. The Tosfos Yomtov's reticence would also indicate that he is in agreement. ( granted that other Rishonim give a different reason for the Heter for refuah to be administered, but that's because a more basic more global Sevoro is available - not that they dispute the principle of the Rambam & Bartenura)

The Minchas Chinuch (Mitzvas Lo Saamod) draws attention to the astounding oddity, that in spite of the above quoted Rambam in Pirush HaMishnayos, nowhere in Yad HaChazoko does he bring Aveidas Gufo to be subsumed under Hashovas Aveida!!
We, on our own, might even add that Rambam's complete reticence in this regard in Rotzeach 1:7-end ;(especially #15) would seem, Stama k'Pirusho, that he retracted from his position in Pirush HaMishnayos and concludes with approach #1 above
Be that as it may, e ven if we take into account the ambiguity of the Rambam's position, we cannot determine more than a Sofeik as to what his final opinion is.

Therefore,whereas the overwhelming majority of Rishonim quoted above quite definitively state that Hashovas Gufo is subsumed under Hashovas Aveida; In the final analysis, it would appear to me that the normative Halocho is that indeed we are dealing with Hashovas Aveida.

3) What are the parameters of Hashovas Aveida and how they would apply in our context.

now to return to your original question: "When I discover a case of abuse and report this information to a rabbi or the police - am I free from future obligation? Or should I view that I have merely delegated the task to another but that the primarily responsibility remains with me."

as discussed above, the obligation of Hashovas Aveida differs in many details to those of Hashovas Gzeila/Gneiva and Shomrim. The pertinent detail that most pertains to our discussion is that the finder needs to restore it to a location where it is ''Mishtamer'' (CM 267:1,2). the concept of ''Mishtamer'' is probably best translated/interpreted by the word ''secured'' as in ''the house has been secured'' or "security services''which means protected and safe.this means that unless the Aveida is secured, ie that it is protected and safeguarded, the finder/discoverer has not fulfilled his obligation of v'Hasheivoso. Stating this in the reverse, if the finder should ''return' the Aveida to a place that is NOT ''mishtamer'' he has not discharged his obligation properly and is fully responsible as a Posheah for any mishap (lost, damage or stolen) that may occur.

a second detail of Hashovas Aveida that also would be germane to our discussion is the following: even if he returns the Aveida to a location that is indeed Mishtamer and thereby fulfilled his obligation, if, however, it should escape again from that mokom mishtamer, and the jeopardy of losing it recurs, the finder is once again obligated to retrieve and return it; and this is true even if reoccurs many times (''even a hundred times'')

Translating these details of obligation into our scenario of abuse, I believe that reporting the abuse to the police or Rabbi, would exempt the reporter from further obligation only if the reporting would reestablish full security (eg safety) for the victim(s). If the involvement and oversight of these or any other authority or person would restore safety, then indeed the responsibility and obligation would pass to the new "Shomer" completely and the first party would be totally exempt from further involvement.

Unfortunately, however, in our present milieu, in most cases, this hardly occurs. In most instances a report even to the police at most only initiates an investigation, (and I dare say that to a Rav the results are even more disheartening) but the abuse goes on unabated or even intensifies.

Even if the abuse would cease for a period of time after the report; if it should begin again, the initial report would not exempt the discovery of its reoccurrence from further reporting.

therefore in summary, the original responsibility remains in place on the original discoverer until the safety of the victim is assured.

Please note that Rashi's language, quoted on your blog, that seems to derive from Lo Saamod that you are still obligated even after "passing the baton" and others are acting on your behalf, I believe is inconclusive. Even though it would dovetail nicely with my presentation above, I believe that the thrust of Rashi is different. I believe that Rashi (like Meiri and Ran cited above) is bothered by the following question,"where do you see from this posuk more dimensions of obligation than from v'Hasheivosa Lo" Rashi proceeds to demonstrate this from the language of the posuk itself. But Rashi does not mean to offer any comment on whether your obligation continues even after the appointment of qualified others.


R' Pinchos Yehoshua HaKohain

1 comment :

  1. Shalom!

    Lean"d regarding 2 (and then 3), it is clear lefu, rihatoh that at best the C is applicable:

    I have to check all M"M; but lefm ruhatoh it is barur, that there are two cases of refuah. a) where there is no sakanah whatsoever, b) where there is chashash sakonoh, especially if it is a safek or sfek sakanah.

    It would appear clearly, that whereever there is a sakanah or safek sakanah, that we have an issue of pikuach nefesh! where it is much more than avedat gufoy!

    The m"m that you cite are mostly for a) cases where there is no sakanat nefashot. A proof for that is: that at the beggining of YD 336 it says (after it states that it is reshut, it adds that it is ) Mitzvah "ubichlal pikuach nefesh!". It seems pashut that pikuach nefesh does not require the parsha and obligation of of "hashvat aveda"; it is a chiyuv on it's own.

    It would appear that the reference that are cited later in the posskim (or the rishonim) refer to a situation where there is clearly no sakanat nefashot; there it is under the parsha of "hashavat gufoy"; but if it is akin to "roeh chaveroy toveah bayam..." or nochrim having a bad thought on a Jew (CM 426) then it falls under "loy taamod al dam reecho" and if it is a case of sakanat nefashot it falls under pikuach nefesh.

    Wrt to three: It seems clear that there is an additional obligation of "atrichoy veoygureh" (to add tircha and hire experts) that is not under the general obgliation of a regular "hashavat gufoy".

    the question will have to be analyzed what is the geder of molestation: "pikuach nefesh" sakanat nefesh or just "hashvat gufoy" (I would tend to a go with the former. But let's hear the discussion on it).

    Regarding Chemdat Shlomoh. I don't have the mareh mekomot in my mind now, but I remember a LOT OF ACHRONIM MATMIHA ON THIS PATICULAR CHEMDAT SHLOMOH and disagreeing harshly with him.

    Bechavod uvrachah,



please use either your real name or a pseudonym.