Wednesday, December 07, 2016

Rosh BM 70b: Talmudic ideals vs. contemporary reality

On a Biblical level, lending with interest is only forbidden for coreligionists. This is clear from pesukim. This idea is not necessarily discriminatory to the extreme. We currently live in a society which understands the time-value of money, and can understand that charging interest for the use of money is not inherently evil. And so this charging of interest is the default, and is moral. But in establishing a moral and religious society, people who commit to those ideals are helped out in various ways, and this includes free loans to prop people up who are in need.

Later on, some rabbinic voices (R. Huna, perhaps) sought to expand this prohibition against interest to the general world at large, so that one should not loan with interest to gentiles. They couldn’t prohibit it on technical grounds, since halacha is halacha, but they could interpret pesukim do show Divine disapproval of lending with interest to gentiles.

In medieval Europe, many professions were closed off to Jews, and what was left if one wanted to survive and feed one’s children was moneylending. This was certainly permitted on a Biblical level, but it goes against this possible rabbinic and theological idea that one shouldn’t charge gentiles interest. But expansive ideals are wonderful where possible. Not so much when the society with which you are trying to interact doesn’t reciprocate. So there will be technical reasons not to apply it, but there is also the practicality of trying to survive in a hostile world, which will explicitly make an appearance.

The gemara in question (Bava Metzia 70b-71a) reads:

He that by usury and unjust gain increaseth his substance, he shall gather it for him that pitieth the poor.10  Who is meant by, for him that pitieth the poor? — Rab said: e.g., King Shapur.11  

R. Nahman observed: Huna told me that [this verse] is needed to show that usury [taken] even from a heathen [leads to loss of one's wealth]. Raba objected to R. Nahman: Unto a stranger tashshik:12  now, what is meant by 'tashshik': surely that 'thou mayest receive usury'? — No: 'thou mayest give usury.'13  [What!] Cannot one do without?14  — It is to exclude 'thy brother,' [to whom thou mayest] not [give usury].15  As for thy brother, is it not explicitly stated, but unto thy brother thou shalt not give usury?16  — [To intimate] that both a positive and negative injunction are violated.17  He [further] raised an objection: ONE MAY BORROW FROM AND LEND MONEY TO THEM ON INTEREST, AND THE SAME APPLIES TO A RESIDENT ALIEN!18  — R. Hiyya, the son of R. Huna, said: This [permission] is granted only [up to]
the [minimum] requirements of a livelihood.1  Rabina said: Here [in the Mishnah] the reference is to scholars. For why did the Rabbis enact this precautionary measure?2  Lest he learn of his ways.3  But being a scholar, he will [certainly] not learn of his ways.
Others referred this statement of R. Huna to [the teaching] which R. Joseph learnt: If thou lend money to any of my people that is poor by thee:4  [this teaches, if the choice lies between] my people and a heathen, 'my people' has preference; the poor or the rich — the 'poor' takes precedence; thy poor [sc. thy relatives] and the [general] poor of thy town — thy poor come first; the poor of thy city and the poor of another town — the poor of thine own town have prior rights. The Master said: '[If the choice lies between] my people and a heathen — "my people" has preference.' But is it not obvious? — R. Nahman answered: Huna told me it means that even if [money is lent] to the heathen on interest, and to the Israelite without [the latter should take precedence].

According to the first reading, R’ Huna interprets the pasuk as indicating Divine displeasure and punishment even to those who charge gentiles interest. Though according to his son, one is allowed up to the requirements of one’s livelihood and no more. While Ravina resolves the contradiction with the Mishna in a different way, that it is prohibited to non-scholars, lest one interact with them and learn from their ways. According to the second reading, R. Huna’s statement modifies a brayta of preference in lending, such that there is never a prohibition against lending with interest to gentiles.

The Rosh writes (and these ideas are also found in Tosafot on the daf) to address the discrepancy between this gemara and conteporary practice:



“Rabbenu Tam would say that this which they conduct themselves nowadays to permit charging gentiles interest is because by laws of Soferim [of Rabbinic invention] we go after the lenient position. And so we establish like the [second] language which teaches this statement of Rav Huna as applying to the brayta, such that Rav Huna never prohibited charging gentiles interest.

And even according to the first language, there is to permit it to us, [based on the clarification by Rav Huna’s son], since everything is “up to making one’s livelihood”, since there is no limit to the [financial] yoke of the king and princes which is placed upon us. And furthermore, since we are living amongst the nations, and it is impossible to profit in any business if we don’t conduct transactions with them. Therefore, there is not to prohibit interest lest [according to Ravina] one learn from their ways, more than any other business transaction.”


Rosh BM 72a - rabbis uprooting Biblical law

In today’s daf (Bava Metzia 72a) we read the following, about collecting interest from loans to and from gentiles after they have converted:

Our Rabbis taught: If an Israelite borrowed money on interest from a heathen and then recorded them [Viz., the principal and the interest] against him as a loan,4  and he [the creditor] became a proselyte: if this settlement preceded his conversion, he may exact both the principal and the interest; if it followed his conversion, he may collect the principal, but not the interest.5  Similarly, if a heathen borrowed money on interest from an Israelite, and then recorded them [the principal and the interest] against him as a loan, and became a proselyte: if the settlement preceded his conversion, he [the Israelite] may exact both the principal and the interest; if it followed his conversion, he may exact the principal but not the interest. R. Jose ruled: If a heathen borrowed money from an Israelite on interest, then in both cases [whether conversion preceded the settlement or the reverse] he may collect both the principal and the interest. Raba said in the name of R. Hisda in the name of R. Huna: The halachah is as R. Jose. Raba said: What is the reason of R. Jose? That it should not be said that he turned a proselyte for the sake of money.6

There is a remarkable Rosh on this: After citing the gemara, up to Rava’s explanation of Rabbi Yossi (with whom the halacha accords), he writes:


“Rava said: What is the reason of Rabbi Yossi? That it should not be said that he converted for the sake of money. Therefore we take from him [the convert who borrowed with interest before he converted] even the interest which accrues after he converted until the time of payment. Even though he is thereby performing a Biblical prohibition, the Sages have to uproot a matter from the Torah, even in case of a sin.”

See also the Hagahot Hagra on this:



Brief thought on Chayei Sarah - irregular spelling

I posted this initially on Facebook (two weeks ago), but am parking it here so that I can readily find it. I've posted here similarly in the past, but this is more concise.

___

This week's thought on the parsha (Chayei Sarah):
Nekudot didn't originally exist for Biblical Hebrew. And the letters aleph, heh, vav, yud originally only functioned to denote consonants. Eventually, those letters (aleph, heh, vav, yud) were used as "imot hakriah", to indicate a vowel sound. So, for instance, a heh at the end of the word to indicate a kamatz, or a yud in the middle or end of a word to indicate a chirik or a tzeirei. But this didn't always happen.
That explains, for instance, why in Chayei Sarah, Bereishit 24, Rivkah is referred to as הַנַּעֲרָ. We shouldn't wonder whether she was cisgender. It is just the archaic, or original, way of writing her name.
So too in the beginning of Chayei Sarah, in Bereishit 23. To indicate a vowel at the end of a word, writers were not always consistent, because the spelling had not yet regularized. (So for instance, when Avraham pitched his tent - ohalo, it has a krei uksiv by being spelled with a final heh rather than a vav.)
So you have
לֵאמֹר לוֹ
שְׁמָעֵנוּ אֲדֹנִי
and
לֵאמֹר
לֹא-אֲדֹנִי שְׁמָעֵנִי
and so on. Consider the possibility of reading every one of these, with a vav shuruk, or vav cholam, or cholam aleph, as the word "loo" (as in e.g. pasuk 13,
לוּ, שְׁמָעֵנִי
). And rewrite the pasuk divisions, so that no pasuk ends with a leimor, or with a leimor lo, but each reads leimor lu adoni shemaeini. See how the narrative restructures, and some questions are resolved. (Such as what Ephron is really refusing in pasuk 11.)

Monday, December 05, 2016

The Midrash Sees: The Aretz upon which you are lying

A curious Rashi towards the beginning of parshat Vayeitzei can open our eyes to some of the poetry in Yaakov’s prophecy.

The pasuk (Bereishit 28):

And behold, the Lord was standing over him, and He said, "I am the Lord, the God of Abraham your father, and the God of Isaac; the land upon which you are lying to you I will give it and to your seed.
יג וְהִנֵּה ה נִצָּב עָלָיו וַיֹּאמַר אֲנִי ה אֱלֹהֵי אַבְרָהָם אָבִיךָ וֵאלֹהֵי יִצְחָק הָאָרֶץ אֲשֶׁר אַתָּה שֹׁכֵב עָלֶיהָ לְךָ אֶתְּנֶנָּה וּלְזַרְעֶךָ:

And the Rashi:

upon which you are lying: (Chullin ad loc.) The Holy One, blessed be He, folded the entire Land of Israel under him. He hinted to him that it would be as easily conquered by his children (as four cubits, which represent the area a person takes up [when lying down]). [From Chullin 91b]
שכב עליה: קיפל הקב"ה כל ארץ ישראל תחתיו, רמז לו שתהא נוחה ליכבש לבניו:


I do not think that Rashi believes that the peshat is that there was this astonishing miracle* for the simple purpose of conveying this hint about the ease of conquering the land. Even though there are miracles abounding in Rashi’s interpretation, of the kefitzat haderech, folding up of the path, to get Yaakov places, or of multiple stones coalescing into a single large stone. He presents us with a derasha, which he either believes to be historical or ahistorical, to teach us some message.

There is, however, an irregularity in this text which the midrash picks up upon. The word eretz serves two purposes in Biblical Hebrew. It refers to ground, that is to dirt, and it refers to a country.

And the word seems to be deliberately used for both purposes here. Hashem specifies the eretz upon which Yaakov sleeps. This is a concrete piece of ground, for cubits. But it would be silly to tell Yaakov that He is granting him those four cubits of ground, to him and to his descendants. Obviously it is referring to the country**.

This is then a more poetic prophecy that other Divine promises. It either uses the word eretz in both senses, or it is a type of synecdoche (using a part to refer to the whole). Why do this? It is emphasizing the humble state of now and contrasting it with the eventual end state. Yaakov had fled and was on his way to Charan, with little in the way of earthly possessions. (This is not just the midrash about Elifaz stealing his wealth, but in the pesukim themselves. For instance, where he says in Vayishlach “for I passed over this Jordan with only my staff, and now I have become two camps.”) He is in the wild, unprotected, and sleeping on the bare ground. And now Hashem appears to him and is nitzav upon him, guarding him, and guarantees that he will guard him everywhere he will go. And so Hashem tells him that this very bare ground upon which he sleeps, and indeed the entire country it is connected to, will belong to him.

The same poetry is present in the next pasuk, and if not for this midrash, we might have missed it:

And your seed shall be as the dust of the earth, and you shall gain strength westward and eastward and northward and southward; and through you shall be blessed all the families of the earth and through your seed.
ידוְהָיָה זַרְעֲךָ כַּעֲפַר הָאָרֶץ וּפָרַצְתָּ יָמָּה וָקֵדְמָה וְצָפֹנָה וָנֶגְבָּה וְנִבְרְכוּ בְךָ כָּל מִשְׁפְּחֹת הָאֲדָמָה וּבְזַרְעֶךָ:

Why the dust of the earth? It is again riffing on the fact that he is sleeping on the bare ground, made of dust.

One additional thought: Dust is plentiful, and beyond counting, so the standard understanding of “numerous” works here. But dust is also not rooted. When the wind blows, it will blow that dust in all directions, westward, eastward, northward and southward. And in such scattering, all the clans of the adama (ground, country) shall be blessed, as your influence and progeny spreads.

_______

Notes:

* Actually, since this is occurring in his dream, so it need not even be a miracle. It can be a miraculous dream-event, in which he imagined that Hashem folded up the earth.


* See Haksav veHakabbalah, who notes that saying, on a peshat level, the land you sleep upon need not be the land directly beneath you, but surrounding you. Perhaps. I think this is deliberate poetic use.

Sunday, December 04, 2016

Bava Metzia 69a-b: On judicial transparency

In today’s daf, an interesting point emerges about judicial transparency. Here is the relevant gemara:

הנהו תרי כותאי דעבוד עסקא בהדי הדדי אזיל חד מנייהו פליג זוזי בלא דעתיה דחבריה אתו לקמיה דרב פפא א"ל מאי נפקא מינה הכי אמר רב נחמן זוזי כמאן דפליגי דמו לשנה זבון חמרא בהדי הדדי קם אידך פליג ליה בלא דעתיה דחבריה אתו לקמיה דרב פפא א"ל מאן פלג לך א"ל קא חזינא דבתר דידי קא אתי מר א"ר פפא כה"ג ודאי צריך לאודועיה זוזי מי שקיל טבי ושביק חסרי (אמר ליה לא אמר ליה) חמרא כולי עלמא ידעי דאיכא דבסים ואיכא דלא בסים

From Soncino:

Two Cutheans25  entered on a share partnership.26  Then one went and divided the money without his partner's knowledge. So they came before R. Papa.27  Said he to him [the plaintiff]: What difference does it make? Thus did R. Nahman rule: Monies are held to be already divided. The following year they bought wine in partnership. Thereupon the other arose and divided it without his partner's knowledge. Again they came before R. Papa. Said he to him: Who divided it for you? — I see, he replied, that you are biased in my partner's favour.28  Said R. Papa: In such a case1  it is certainly necessary to inform him [of the grounds of my verdicts]: As for coins, would he take good coins and leave short-weight ones [for you]? But in the case of wine, everybody knows that some wine is sweet and some is not.2

See Tosafot on the daf, the Rosh, and Nimukei Yosef (on the Rif) about this.

We see that one of the litigants thinks Rav Papa is biased against him, since he ruled against him in sequential cases which, to him mind, should have had the same ruling. And so Rav Papa says that, in such a case, Rav Papa must surely inform him of the grounds of the verdict.

There is an ambiguity here. Rav Papa says  כה"ג ודאי צריך לאודועיה, “in such a case, certainly one must inform him.” Inform whom? Of what? There are two ways of understanding it. One, what we have seen so far, that Rav Papa must inform the litigant. And thus we see Rav Papa explain his verdict in the next sentences. The other understanding, that one partner should have informed his partner of his intent to sell. The reason being what Rav Papa elaborates, that there is a difference between coins (where one need not inform) and wine (where one needs to inform).

Rosh (who quotes Tosafot and adds an additional point) writes:

That is, he first cites our ambiguous gemara. Then writes (parallel to Tosafot):

The implication is that specifically in this case [bechi hai gavna -- the words Rav Papa used], where there is a reason for [the litigant] opening his mouth, to suspect the judge, it is necessary to inform him of the reason of the ruling, because of [Bemidbar 32:22] “And you shall be deemed innocent by Hashem and by Israel.” But in general, no. From here Rabbenu Tam, za’l, deduces that that which is stated at the end of perek Zeh Borer [Sanhedrin 31b] [writing here the gemara in fuller form]:

If two litigants are in obstinate disagreement with respect to [the venue of] a lawsuit, and one says: Let us be tried here; and the other says: Let us go to the place of Assembly;17  he [the defendant] must attend the court in his18  home town. And if it is necessary to consult [the Assembly], the matter is written down and forwarded to them. And if the litigant19  says 'Write down the grounds on which you made your decision and give them to me,20  they must write them down and give him the document.

This [where they must write down the grounds of the decision] is specifically where they initially compelled him to the court [since he wanted to go to the Assembly]. But if initially he went willingly and they judged him, they don’t write for him.

And some explain that this that Rav Papa said כה"ג ודאי צריך לאודועיה, means that you [the litigant] should have initially informed him [your partner] when you divided.

And [here this is more than what Tosafot writes] even according to the other interpretation, there is no proof from here. For here is its explanation: In such an instance, one [the judge] needs to inform him, even if he [the litigant] did not ask for the reason of his judgement. For here, he [the Cuthean litigant] did not ask that he inform him, but rather said “I see that you are going after me”. But in general, if he asked, he writes it down for him.

See for more detail in Nimukei Yosef:


who brings up the idea that, in general, where there wasn’t a basis for confusion [based on the two seemingly contrary judgements], if someone had the same reaction as this Cuthean, to mock the judgement, he would not be informed of the reason for the judgement, but would rather be placed under the ban.

----------------------

I think in such a case, the ambiguity of the underlying text plays a strong role in the different conclusions. The simplest reading that occurs is that Rav Papa is justifying himself, after being accused of judicial impropriety. And only when the other way of interpreting the text is pointed out does one come to that realization. And one is left uncertain how to interpret it, and ruminate on it, try to muster proofs from other sources, balance with other gemaras, etc..


At the same time, it seems to be likely that, in many cases, there will be some unconscious cultural influence. How one feels about the role of the court system, whether it should regularly be transparent, whether to empower or condemn a litigant who feels wronged, and so on. These attitudes could color how one reads an ambiguous gemara such as this one, and whether one things reading A or reading B is the more convincing, and how far-reaching (to which cases) reading A would apply.

Wednesday, September 14, 2016

Handout for today / tomorrow daf Yomi (Bava Kamma 106-107)





























































1) Peshat: paragraph 1 about kesef and keilim, paragraph 2 about animals. Interjection of al kol devar pesha is general statement about person lying in court with a claim which would exempt. Paragraph 3 about shoel and sachir.

2) Derash: paragraph 1 about shomer chinam, paragraph 2 about shomer sachar.

3) Ambiguity: Im yimatzei haganav in [6] as either (A) if the actual outside thief be found, or (B) if he be found to be the ganav.

4) Ambiguity: venikrav baal habayit el haelohim in [7] as just coming to court and denying, or an oath as in pasuk [10].

5) Rav: Based on pasuk [10], once the owners accept his oath, he is exempt from swearing, even if witnesses come later.

6) Rabbi Yochanan: Based on pasuk [6] about ganav and pasuk [7-8] about toen taanat ganav, that he pays double, that both have all the laws of ganav, including 4X and 5X. But consider ambiguity of (3)? Ganav vs. HaGanav in [6] includes actual ganav as well.

7) Rabbi Yochanan: Aveida in pasuk [8] refers to falsely claiming theft on a lost article.

8) Rabbi Yochanan, Rami bar Yechezkel: Ki hu zeh in pasuk [8] introduces modeh bemiktzat on falsely claiming theft.



9) R’ Chiya bar Yosef: Eruv parshiyot of parts of [8] to below, pasuk [24]. (Consider how in peshat, it is an interjection about several cases.)

10) Rava: Go through each of three paragraphs. Explicit in p1, link of ki yitan from p1 to p2, conjunctive in p3. Sachir mentioned in p3, [14], pasuk but falls under p1 or p2.


11) R’ Chiya bar Yosef: In pasuk [7], im lo shalach. On peshat level, im means she-, the contents of the oath. Shalach yado literally is that he isn’t stealing it now. But interpret to mean “misappropriation”, either using it beyond scope of his shemirah (hanaah) or that he stole it [took some action earlier with intent to keep it, prior to this oath], or ate it, and only then is there kefel. Rabbi Yochanan disagrees ambiguously (excludes or allows). Rav Sheshet excludes from kefel (im as if, or it is an additional oath to the literal one but not carrying kefel).

Bava Kamma 106a:
אמר רב הונא אמר רב מנה לי בידך והלה אומר אין לך בידי כלום ונשבע ובאו עדים פטור שנאמר ולקח בעליו ולא ישלם כיון שקבלו בעלים שבועה שוב אין משלמין ממון

Yerushalmi Shevuot 7:1
דף לג, א פרק ז הלכה א משנה  כל הנשבעין שבתורה נשבעין ולא משלמין...
דף לג, ב פרק ז הלכה א גמרא  ממשמע שנאמר שבועת ה' תהיה בין שניהם אין אנו יודעין שאם לא ישבע ישלם מה ת"ל ולקח בעליו ולא ישלם אלא מכיון שקיבלו בעלים שבועה הוא פטור מלשלם.
רבי חגיי בעא קומי רבי יוסי ולמה לי כרבי מאיר אפילו כרבנן.  לא א"ר אסי בשם רבי יוחנן דברי רבי מאיר ממשמע לאו אתה שומע הן ולקח בעליו ולא ישלם הא אם לא ישבע ישלם.  תני רבי חייה מתנה שומר חנם ושומר שכר להיות כשואל.  א"ר חנינה הכל מודין בלשון תורה ממשמע לאו אתה שומע הין מה פליגין בלשון בני אדם.  

Bavli Shevuot 7:1
דף מה, א גמרא  כל הנשבעין שבתורה נשבעין ולא משלמין מנלן דאמר קרא (שמות כב) ולקח בעליו ולא ישלם מי שעליו לשלם לו שבועה:

The Yerushalmi’s derasha seems parallel to that of Rav, but it used by Yerushalmi to show that it is always the nitba rather than tovea who swears to excuse himself. Consider how the gemara redirects the pasuk of Rav towards this end, using the same language as the Bavli.

LinkWithin

Blog Widget by LinkWithin