Thursday, April 28, 2011

post pesach blues, justice, and something on the parsha

Yes, I’m sad Pesach is over. I can live with matzah. I can live with Pesach cake (thanks to my wife’s baking ability). My kids think they can live without school. Really the only one in my house who is happy that Pesach is over is guinea pig, who had a very hard week without his little bowl and his (chometz) pellet food.

This post on Orthonomics caught my eye. The original story is on imamother. A family, recommended by a Rosh Yeshiva as decent folk, agreed on a salary with a teenager for her to work as a mother’s helper over Pesach. Following the holiday they tried to stiff her. Of course we don’t know the other side of the story, but the same sort of thing has happened so many times to my wife in her business that I feel confident in saying that if this particular story is not true, there are enough similar stories that are. It goes without saying that to be nizhar on a mashehu of chometz but to trample on basic morality is a sham. All I want to add is that I think there is a sore lack in the community of any venue to redress situations like these. It costs $20 (if I remember correctly) to file a claim in small claims court in NY for disputes over less than $5000. It doesn’t solve everything – your opponent can still stare the judge in the face and lie; your opponent can still just ignore a judgment and refuse to pay. But at least it’s something. Find me a Beis Din whose summons won’t just be tossed in the garbage at whim and who for 20 bucks will sit to arbitrate a dispute. Go ahead, make my day. Really, you will.

On to the parsha: Chazal darshen, “Ish imo v’aviv tira’u v’es shabosai tishmoru,” as teaching that even if a parent tells you to violate Shabbos, you may not. Why is a special limud needed to teach that the mitzvas aseh of kibud av is not doche Shabbos? Shabbos is both an aseh and a lav, kibud av is just an aseh -- obviously Shabbos wins.

I saw an interesting answer in the Ksav Sofer (the gemara itself touches on this - see B"M 32). We know that aseh doche lo ta’aseh, but not a lo ta’aseh + another aseh. The Rishonim (Tos. Chulin 141) debate how that works: Do we apply the usual rule of aseh doche lo ta’aseh to knock off the lav but are still left with an issur aseh on the balance sheet, or does an aseh + lav completely negate the power of the opposing aseh to be doche anything? Nafka minah: Whether or not you get malkos.

Assuming that an aseh that opposes a lav + another aseh can push off the lav, why can’t it push off the opposing aseh as well? The reason is because you can’t privilege one aseh over the other – they are both equal. But what if there are two aseh’s opposing a lav + aseh? In that case the balance sheet is no longer equal.

This is exactly (says the Ksav Sofer) the situation the Torah is speaking about here. If both your father and mother tell you to do something that would violate Shabbos, the rule of aseh doche lo ta’aseh would remove the lav of Shabbos, which would leave two asehs (kibud av + kibud eim) against the one aseh of Shabbos. If not for the special derasha we might have thought one should violate Shabbos in such a situation – kah mashma lan not.

There is a lot to think about here and room to argue.

The Chizkuni addresses the same question and adds a further point: The halacha is that one is not obligated in kibud av for parents who are Torah violators. We don't need a derasha to tell us that Shabbos is stronger than or doche the aseh of kibud av because there is simply no mitzvah of kibud av to listen to a parent who says to desecrate Shabbos.

Chizkuni explains that the chiddush here is that even if a parent says to violate only a shvus -- a din derabbanan -- on Shabbos, kibud av is still put aside in favor of Shabbos. I'm not sure what the answer means. Does the Chizkuni mean to suggest that a parent who says to violate a derabbanan is not a rasha and there exists a mitzvah of kibud in that case? [Why should there be?] Does he mean that one could at least entertain such a hava amina? And how can the chiddush of a pasuk be that dinim derabbanan of Shabbos are not set aside for kibud av? I'm not clear on any of this and maybe I should do more thinking about it before writing, but lately I've had so little time that thinking while writing is the best I can do for now.


  1. great unknown9:58 AM

    Re: the pathetic story on "yashrus." Ochain Noda Hadavar. I refer you to the hakdama of the N'tziv to Sefer B'raishis.

    As far as a ehrliche din torah with teeth is concerned, I can only speak of Baltimore thirty years ago; I hope the same applies there today.

    Illustrative of the attitude there is a story told me at that time by a Posek in Baltimore involved in such a din torah. He was speaking to a chaver from yeshiva who was now a dayan in NY, and the latter mentioned [30 years ago] that he made several hundred dollars a day for sitting on a bais din.
    Asked the posek, "That's your schar batala? What do you do in civilian life, sell drugs?"
    Countered the chaver, "Don't tell me you don't get paid for sitting on a din torah!"
    "Let me tell you what a din torah is like here," said the posek. "Last week I was in one where one yunger man had purchased a dishwasher from another, and now claimed it didn't work. Rav Heinemann, who was the head of the bais din, decided to examine the evidence, and we all went to the purchaser's house to see. He took a close look at the dishwasher, got down on his knees and made some adjustments, and presto, the dishwasher was now working as good as new.
    "Not only did we not get a dime for being dayanim, but Rav Heinemann didn't even charge for the repair job."

    BTW, when you said "make my day," I was thinking of you brandishing a .44 magnum revolver. For what it's worth, a .357 magnum is much more practical.

  2. Anonymous11:12 AM

    re your point that you can live with matza- I had written about the odd distinction between the din of al hasova by Kodshim/Pesach and the requirement of l'tei'avon by Matza, and someone wrote back that it makes perfect sense, because the only way he can get himself to eat matza is if he's really hungry. This reminded me that true hedonism requires discipline. If you just eat all the time, you don't really enjoy it. You have to get really hungry in order to thoroughly enjoy what you're eating.

  3. Tal Benschar4:18 PM

    In a recent Mishpacha, they had a story about the Chazon Ish's nephew, who heads a Beis Din in Bnei Brak, where they dayanim are paid nothing, and there is no fee for bringing a case, and the typical case is resolved quickly.

    In the case of the $20, how about going to the local Rav? If the family refuses to respond, he is within his rights to expel them from the kehillah.

    (BTW, what you say about Small Claims Court is not true. I was recently involved in a Small Claims Court case in NJ involving $2000, and the local sherriff in NJ went out to collect the judgment from several banks in which the defendant had funds on deposit. There was some paper work involved, and some modest fees, which are collectable as part of the judgment. After less than a year, the plaintiff collected almost the whole judgment.)

  4. >>>If the family refuses to respond, he is within his rights to expel them from the kehillah.

    You can't be serious. If we put on one side of the scale the number of times a Rav has expelled a ba'alei bayis (b'frat a wealthy or important one) from a kehila and put on the other side the number of time that ba'alei batim have expelled their Rav, do you have any doubt which will win?

    I did not mean to suggest that small claims is not effective at all -- just that if you have no clue where someone does their banking or is hiding their assets, not much you can do. It's still better than nothing.

  5. Anonymous11:42 PM

    is it not too easy to claim "sham"?
    people can be very uneven, selfless
    bein adam l'Makom, selfish bein
    adam l'chaveiro...

  6. great unknown10:51 AM

    re anonymous:
    I have a mesora in the name of R' Yisroel Salanter that the brochos of l'malshinim and al hatzadikim can be referring the same person.
    [I don't think he meant that literally. I hope...]