Halachic and Ethical Topicsin Tractate Bava Kamma

by the Students of the ICJA12th Grade Accelerated Honors Talmud Class

5774-5775 2014-2015

Edited by Rabbi Barry RobinsonVolume II

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Table of Contents

Foreword ............................................................................................................................. 4Section I - Does a Thief Need Atonement in Addition to Returning the Stolen Property?

Is There Honor Among Thieves? by Noah Aberman, Dovi Garfinkel, and Rafi Jacobson ......................... 6

Kapara after Stealing: What is its True Purpose?by Noah Best and Ben Schreiber ............................................................. 9

Is Kapara Necessary for Thieves?by Natan Oliff and Max Brasch ............................................................... 11

To Do or Not to Do (Teshuva), That is the Questionby Ari Karesh and, Jacob Zwelling ......................................................... 13

Section II - Miscellaneous Topics in Bava KammaReturning Stolen Chametz After Pesach is Over

by Natan Oliff and Max Brasch ............................................................... 16How and Why a Thief Acquires Stolen Property

by Dovi Garfinkel, Noah Aberman, and Rafi Jacobson ........................ 18Responsibility to Pay for Damage Done as a Child

by Mordechai Lis and Ben Eisenstein ..................................................... 21Is Dina D’Garmi a Torah Law or a Rabbinic Enactment?

by Ari Karesh and Jacob Zwelling .......................................................... 23Why Must a Shochet Prove He is an Expert?

by Dovi Garfinkle, Rafi Jacobson and Noah Aberman ......................... 25Going Beyond the Letter of the Law

by Jacob Zwelling and Ari Karesh .......................................................... 27One Cannot Render Someone Else’s Property Forbidden for Use

by Ben Schreiber and Noah Best ............................................................. 30Dina D’Malchuta Dina - Not Just For Jews Anymore

by Ben Eisenstein and Mordechai Lis ..................................................... 33Geneivat Da’at - Deceiving Another Human Being

by Ben Schreiber and Noah Best ............................................................. 35Gezel Aino Yehudi - Stealing from a Gentile

by Max Brasch and Natan Oliff ............................................................... 37

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Foreword

This academic year, 5774-5775 (2014-2015), the students of the 12th Grade Accelerated HonorsTalmud Class learned various Sugyot in the ninth and tenth chapters of Masechet Bava Kammadealing with the laws of Geneiva and Gezeila (theft and robbery) as well as several other laws ofJewish Jurisprudence.

On the topic of stealing, the Torah prohibitions are quite clear: ('`i:'hi `xwie) :Fzi ¦n£r ©A Wi ¦ Ex §T ©W §zÎ Ÿl §e EW£g ©k §zÎ Ÿl §e EaŸp §b ¦Y Ÿl

You shall not steal; nor shall you deal falsely or lie to one another. (Vayikra 19:11)

('bi:'hi `xwie) :x ¤wŸAÎc ©r L §Y ¦ xi ¦kŸy z©Nªr §R oi¦lzÎ Ÿl lŸf §b ¦z Ÿl §e L£r ¥xÎz ¤ wŸW£r ©zÎ ŸlYou shalt not oppress your neighbor, nor rob him; you shall not withhold the wages of a hired

servant all night until the morning. (Vayikra 19:13)

With regard to stealing, the Torah calls for restitution:('bk:'d `xwie) ... lfB x ¤W£ dl¥f §B ©dÎz ¤ ai ¦W ¥d §e ...

... he shall restore that which he took by robbery ... (Vayikra 5:23)

In Section I of this compendium, the Talmidim deal with the issue of whether or not restitution issufficient to erase the sin of stealing. As we shall see, the issue is subject to considerable debateamong the Rabbis.

In Section II, the papers cover a wide spectrum of topics from the ninth and tenth chapters ofBava Kamma. We hope you enjoy reading the papers in this compendium as much as weenjoyed learning about these issues and putting this compendium together.

Rabbi Barry RobinsonIyar 5775 - May 2015

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Section I

Does a Thief Need Atonement in Addition to Returning the Stolen Property?

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Is There Honor Among Thieves? by Noah Aberman, Dovi Garfinkel, and Rafi Jacobson

There are many sources that argue whether or not a Gazlan (robber) or Ganav (thief) need to doTeshuva (repentance) and Capara (atonement) for having committed a sin - even after returningthe stolen object. This discussion is heavily debated and there are many sources that defend bothsides of the argument. While there is not one definite answer to the question of whether or not aGazlan or Ganav need to do Teshuva after returning the object they stole, we will attempt toexplain both side of the argument and perhaps shed light on the deeper questions involved.

The Mishna in Masechet Chagiga (Daf 9a) says:

`le lbxd xar .bg ly oexg`d aeh meie ,lbxd lk z` bbeg - bg ly oey`xd aeh meia bg `ly in

xn`p df lr ,ezeixg`a aiig epi` - bg('` zldw).zepndl lkei `l oexqge owzl lkei `l zeern

`ed leki - lfebe apeba xn`z m` owzdl leki epi`y zeern edfi` :xne` `iiqpn oa oerny iax

...owzie exifgdl

If one did not bring the Chagiga sacrifice to the Temple on the first day of Sukkot, he may do soon any of the subsequent days of the holiday including Shemini Atzeret. However, once the

holiday has passed, it is too late to bring the sacrifice. About such a person it says in the Book ofKohelet (1:15): “That which is crooked cannot be made straight; and that which is missing

cannot be counted. Rabbi Shimon ben Menassiya asks: “What is this crooked thing that cannotbe made straight? ... It cannot refer to a thief because all he has to do is return the stolen object

and he has “corrected” his sin ...

We see that in the case of a thief, he is able to return the object which he stole or at least make apayment equal to the value of the object. Rashi (xifgdl leki d"c) says that by returning thestolen object, the thief has “corrected” the sin. It would seem that Rashi is of the opinion that thethief does not need to do Teshuva because he is able to merely return the stolen object andthereby correct the sin.

Another source is from the Mishna in Masechet Sanhedrin (24b) that says that a gambler and onewho lends money at interest are not able to be witnesses in court because they are untrustworthy.Rashi (wgynd d"c) adds that these people are not allowed to be witnesses because they areconsidered to be thieves.

The Rambam (c"d 'i wxt zecr zekld) tells us that Gazlan is disqualified from testifyingbecause he is a Rasha (an evil-doer) and he remains so even after returning the stolen property.

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The Kesef Mishna on the Rambam stresses that merely paying back the money is not considereda good, sincere Teshuva.

Later, the Rambam (c"d 'ai wxt zecr zekld) reiterates that repayment is not sufficient. TheGazlan must do Teshuva in order to be reinstated and allowed to testify in court. However, theRadvaz has a different approach. The Radvaz says that if the Beit Din forces the Gazlan to repay,then Teshuva is still required. But if the Gazlan returns the stolen object of his own free will,then even the Rambam would hold that it is considered a legitimate Teshuva.

The Rambam adds that a Rasha who receives Malkot (lashes) for his sin can be considered tohave done Teshuva. However, since there are no lashes for a Gazlan, he must do Teshuva beforehe can be considered a viable witness again. To this the Radvaz says that even if a Gazlanreceived lashes, we would not have a proof that he had done Teshuva sincerely. The reason isthat a Gazlan is considered a Rasha in the heavenly court as well as in the human court, so hemust do an actual, full-hearted Teshuva.

The Gamara in Bava Kamma (60b) tells a story that King David once was very thirsty and heasked for water from the well of Beit Lechem, which was in the city gate. In response, three menbroke into the camp of the Plishteem (Philistines) and brought David the water.

The Gemara assumes that the story is allegorical and that King David was actually asking for aHalachic ruling - he was not asking for water to slake his thirst. So the Gemara asks: what wasthe Halachic issues raised by King David. The Rabanan said in the name of Rabbah Bar Marithat the issue was as follows. King David and his army were encamped at a field whichcontained stacks of barley belonging to Jews and stacks of lentils belonging to Philistines. KingDavid asked the Sanhedrin if he was permitted to take the barley to use for food for his horseson the condition that he pay back the owners with the stacks of lentils when he takes them fromthe Philistines.

The Sanhedrin replied to King David that even if one repays what he stole he is still considered aRasha. Accordingly, said the Sanhedrin, a commoner would not be allowed to do this but sinceDavid was the king he was allowed to because the king is allowed to “break through the fencesof another person’s property to make a path for his army.” It is evident from this Gemara thatthe Sanhedrin holds that a thief would have to do Teshuva in addition to returning the stolenproperty.

Our final source is based on the lectures and writings of Rabbi Yitzchok Basser (Rosh Chaburaof the Bais HaVaad Halacha Center, Lakewood, NJ). Rav Basser was asked: if one shoplifted inhis teenage years from a store owned by a family friend and decides now that he wants to make

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amends with the friend, can he anonymously return the value of the stolen item, or does he alsoneed to ask for Mechila?

The first proof that Rabbi Basser brings is from the Rambam (h"d 'd wxt wifne laeg zekld)who says if one causes bodily harm to another person, he must ask for forgiveness but if oneonly causes monetary damage, he only has to pay the person back (and does not have to ask forMechila). Here, Rabbi Basser points out, that the Rambam is contradicting himself. Previously,the Rambam said that returning stolen property is not sufficient to attain Kapara, one needs to doTeshuva as well. Yet here, in Hilchot Chovel U’Mazik he says that Teshuva is not necessary ifno bodily harm was done to the victim of the crime.

To answer this question, Rabbi Basser introduces two sources, the Lechem Mishna and the SeferHakovetz. The Lechem Mishna (wifne laeg zekld) answers that the Rambam in HilchotTeshuva (who says that Teshuva is required) is referring to a Gazlan, who takes an object byforce from the owner and then derives personal benefit from the object. This act of taking theobject by force causes the owner emotional distress and therefor the Gazlan must ask for mechilafrom the victim. The Lechem Mishna goes on to explain that the Rambam in Hilchot ChovelU’Mazik is referring to damaging a person’s possessions. Since the Mazik gains no personalpleasure from being destructive, the factor of emotional distress of the owner is eliminated and,therefore, we would not require the thief to ask for Machila.

Rabbi Basser’s second source, The Sefer Hakovetz has a very different approach. The SeferHakovetz says that the Rambam in Hilchot Chovel U’Mazik is talking about the bare minimumobligation to attain the smallest level of forgiveness and only one who causes bodily harm wouldbe obligated to do this. Wheras, the Rambam in Hilchot Teshuva is discussing what the properthing to do is even in cases that do not involve bodily harm. From this Rabbi Basser concludesthat while one is not obligated to ask for Machila, it is the proper thing to do.

While the topic of Teshuva for a thief who has returned the object he stole is heavily debated,most Meforshim hold that he should do Teshuva. Even those authorities who hold that the thiefdoes not need to do Teshuva, it is safe to say that almost all Meforshim would hold that doingTeshuva would be the proper thing for one to do in order to achieve full atonement.

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Kapara after Stealing: What is its True Purpose?by Noah Best and Ben Schreiber

The Mishna in Bava Kamma (96b) introduces the concept of Harei Shelach Lefanecha. Thisconcept states that if one steals something from his friend and some sort of change happens tothe stolen object (e.g. the coin cracked, or the Terumah became Tamei or the wine spoiled) whilein the possession of the thief, the Gazlan merely has to return the object. The Mishna seems toindicate that the Gazlan has fulfilled his obligation by returning the stolen object even though itis now worthless.

However, the question of Kapara (atonement) for the sin of stealing is not addressed in theMishna. Does a Ganav or Gazlan need to atone or repent for stealing in addition to returning thestolen item?

Several Rabbinic authorities believe that even after a Gazlan returns the item he stole, he mustrepent. Although he is absolved Bein Adam L’Chavero (between himself and his fellow man),there exists a sin Bein Adam LaMakom (between himself and Hashem) that must be accountedfor. Other authorities are of the opinion that returning the item satisfies both levels ofatonement.

Teshuva (repentence) plays a role in judging man’s intentions. When the Ganav or Gazlanrepents, he accepts his sin in order to take a step forward. There are several approaches as towhy he needs to do Teshuva.

Whether the Beit Din forced him to return the stolen goods or he did so on his own plays a rolein determining the validity of his Teshuva. The Tur Choshen Mishpat (Siman 34:15) says that ifthe Beit Din forces the Gazlan to return the stolen item, then he is prohibited from testifying incourt in the future because he has shown that he desires money more than keeping the Torah andtherefore, he is bribable.

The Beit Yosef comments on this opinion and says that even if a Gazlan returns the stolen objectvoluntarily, he is still prohibited from testifying in court because it is hard to trust someone whowas once susceptible to bribery. According to the Beit Yosef, and by extension, the Tur, it isnecessary for the Gazlan to do Teshuva for complete restitution.

In court, a witness must be “kosher” to testify. What happens if the witness is a Rasha (an evildoer like a thief), can he still testify? According to the Rambam in Hilchot Edut (10:4), a Rashacannot be a witness even if he repaid the monetary value of that which he stole. Therefore, itseems that the Rambam holds that the Gazlan needs Kapara (atonement) in order to once againbe “kosher” to testify. The Radbaz agrees with the Rambam and says that one can only be awitness if he does Teshuva.

But what if the Gazlan does not need to testify, does he still need Kapara? The Rambam later inHilchot Edut (12:4) states that if a Rasha has committed a sin that carries the punishment ofMalkot (flogging), he can return to his “kosher” status by being flogged or by doing Teshuva.But a Rasha who has committed a sin involving money cannot be reinstated unless we know thathe has repented from his evil ways. Why is this so? The Radbaz answers that we need to be

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sure that the Gazlan is not Ra LaMakom and Ra LaBriot (evil to Hashem and evil to humanbeings).

Other authorities disagree. They hold that Kapara does nothing for the Gazlan. The Bach on theTur Choshen Mishpat (34:15) holds that if the Gazlan returns the stolen property voluntarily, thatqualifies as Kapara because is repenting through the act of returning the stolen items.

Rashi in Masechet Chagiga (9a) agrees with the Bach and says that all the Gazlan has to do ispay back either the item he stole or its monetary value (if the item no longer exists). Rav MosheFeinstein zt”l takes this one step further and says that according to Rashi, even if the Beit Dinforces the Gazlan to return the stolen goods, he is still exempt from having to do Teshuva.

As a Gazlan, why would I need Kapara separate from returning the stolen object if I am notplanning to testify in court? Furthermore, why is returning the object not enough of a correction(according to the Rambam and Beit Yosef cited above), especially if I did so voluntarily?

The purpose of getting Kapara seems to be twofold. First, it allows me to testify, if necessary.Second, it serves the purpose of letting the community know that I am no longer a threat to themand their property. But does this really work? As it says in Kohelet (Ecclesiastes 1:15) M’Uvatetc. – “That which is crooked can never be straightened and that which is missing or lost cannotbe counted.” Therefore, regardless of whether or not I achieve Kapara there will always be angative association with me throughout the community. The Kapara seems to accomplishnothing.

Therefore, we believe that Kapara is not about cleansing the Gazlan in the eyes of thecommunity because that can never be fully achieved. Rather, Kapara is about creating a moralsociety in which even the wicked people understand that stealing is wrong. It doesn’t matterwhether or not the Gazlan was forced to return the stolen property, what matters is that hephysically returned it and he is no longer in possession of stolen goods.

When a child hits his brother, his mother forces him to say, “I’m sorry.” Usually this is not donewhole-heartedly. It is usually said without emotion and in a dull and lifeless voice. The childdoesn’t mean it – he isn’t sorry-so why does the mother force him to say he’s sorry? It’s becauseit forces the wrong-doer to realize that he cannot get away with his abusive behavior.

So too, the Gazlan will not fully comprehend that he sinned if all he has to do is return the stolenobject. Therefore, doing Teshuva in addition to returning the object will open up the Gazlan’seyes to his misdeed. Even if the Gazlan does not actually repent honestly, nevertheless the BeitDin causes the Gazlan to examine his destructive nature by forcing him to do Teshuva and,thereby, taking a step or two towards his reclamation into society.

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Is Kapara Necessary for Thieves?Natan Oliff and Max Brasch

Shimon and Reuven dorm together at Yeshiva University in Washington Heights. Shimon isstudying to become a Rabbi through the RIETS smicha program at the University. It is the nightbefore the big final, and Shimon is prepared to take the test. But, one problem arises: all his penshave run out of ink!

“What shall I do?!” exclaims Shimon, “all the stores are closed and everyone is asleep.” Afterglancing around the room, however, Shimon’s fears are quelled when he notices Reuven’s penlying on his bedside.

A month later Reuven approaches Shimon with an embarrassed expression. “This probablysounds silly, but have you seen the pen I usually keep by my bedside? My grandfather, RobinBarryson, gave it to me as a Bar Mitzvah present.”

Shimon was too embarrassed to acknowledge that he never returned the pen. So that night, whenReuven was asleep, Shimon returned the pen to Reuven’s bedside.

The next morning could have two outcomes. Outcome A is that Shimon explains what happenedto Reuven and asks for forgiveness. Situation B is that Shimon says nothing about the situation.

Does Shimon need to ask for forgiveness? Or is simply returning the object sufficient? Sadly,the answer to this question is not black or white. What denotes acceptable forgiveness? What isthe exact definition of “sufficient?”

There are many different opinions on acceptable forgiveness. The Rambam and Kesef Mishnahold that it is sufficient to just ask for Mechila (forgiveness). However, Rashi in Chagiga holdsthat one who returns the object/money of his own accord has rectified his sin. Tosafot, quoted bythe Igros Moshe, has the most Machmir opinion that one must ask for forgiveness of his ownaccord and he must truly want Mechila and not out of fear of punishment. Perhaps acceptableMechila is when the thief truly believes that his actions were inexcusable, and his consciencecompels him to return the object and ask for Mechila.

“Sufficient,” according to the Gemara in Ketubot 21b, refers to whether the thief is ableto be a judge. Ketubot 21b discusses a case where there are three judges that are about to verifyand validate loan agreement or a bill-of-sale.

However, two witnesses claim that one of the judges was a previous thief. In this case, theaccused judge can only sign the certification if the other two judges acknowledge that he askedfor forgiveness.

Mechila is not only necessary for one’s reputation, but also for one’s self-esteem and conscience.From personal experiences, even if a wrong is righted, guilt still lingers until forgiveness isgiven.

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Another point of interest: The Gemara in Sanhedrin 21b discusses whether certain peoplecan be appointed judges. It says that gamblers and interest lenders, while not considered thieves,practice a profession that is very similar to thievery. Therefore, the Gemara explains, `the Rabbisruled that they cannot be appointed as judges. Rashi in Ketubot 21b explains that these type ofpeople would be susceptible to bribes as judges.

So, lets go back to the cases discussed in the opening paragraph. In order to uncover the answerto the question lets play out Situation A and Situation B and see the final outcomes. Situation A:The next morning Shimon explains to Reuven how he ended up liking the pen, so he kept it.However, once he realized how important it was to Reuven, he felt bad and decided to return itand ask for Mechila. Reuven says he understands and everything turns out nicely.

Situation B: Shimon decides not to explain to Reuven what happened, and the whole incidentblows over. It is possible that another student could have seen Shimon with Reuven’s pen andeventually would have told Reuven, causing a fight between the two.

From the aforementioned situation, it seems that Mechila is not necessary, although itwould create a safety-net to ensure no quarrel. However, in a different situation, Mechila mightbe of much more importance. For example, what if Dan stole $10,000 dollars from Judah?Wouldn’t Judah be very mad if he knew that Dan stole all that money? And wouldn’t Dan’sreputation be tarnished if this theft became public knowledge? All the more so if people knewthat Dan stole a large amount of money and he did not ask for forgiveness.

Rabbi Yitzchak Bassar (thehalachacenter.com) says that emotional distress and bodily harm,bigger damages, requires one to ask for Mechila. However, smaller cases where someone loses apossession does not require Mechila.

While a thief does not have to ask for forgiveness, it is definitely a benefit for him to do so, frommany fronts. Forgiveness helps repair his relationship with the owner, it helps ease the thief’sconscience, and it helps stop his reputation from being tarnished. Upon reviewing the positiveeffects of forgiveness on a person, it couldn’t hurt to ask for some Mechila.

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To Do or Not to Do (Teshuva), That is the QuestionAri Karesh and, Jacob Zwelling

The Mishna on Bava Kamma (96b) states that some stolen items can be returned in their currentstate under the principle of jiptl jly ixd, behold, what is yours is right here before you; take itback as is. This is even true though certain changes have occurred in stolen object. Once theobject is returned to its rightful owner, the thief has no more obligations to fulfill. Or does he?

We believe that in addition to returning the object he stole, the thief must do Teshuva(repentance) for having violated the negative commandment of eaepbz `l, do not steal (which inthis case refers also to a Gazlan , and not specifically to a Ganav as the commandment mayimply).

A Mishna in Masechet Chagiga (9a) speaks of the concept of: ('eh:'` zldw) zepndl lkei `l oexqge owzl lkei `l zeern

A crooked thing cannot be straightened, and something lacking cannot be counted. (Eccl. 1:15)

The Mishna is discussing when one can bring the Chagiga Sacrifice . If one failed to bring theChagiga sacrifice on the first day of the Chag, there are seven more make-up dates on which hecan bring the sacrifice. But, says the Mishna, if the entire eight day period passes and he did notbring the Chagiga sacrifice, it can no longer be made up. This is a case of “a crooked thing thatcannot be straightened.”

The Mishna poses the question: to what other cases can this concept be applied? Rabbi Shimonben Menassiya explains that it cannot refer to one who steals or robs because they have theopportunity to make the matter “straight”. Rashi explains that the wrong can be made right byreturning the stolen object to its rightful owner.

But when Rashi says that the thief has rectified the sin, what does he mean? It would appearfrom a simple reading of Rashi that the thief only has to return the object, he has no obligation toask for forgiveness or to atone for his sin.

When one attains Halachic Mechila (forgiveness), it means that the sin was wiped off of thesinner’s criminal record that Hashem keeps. The forgiveness Rashi talks about is what we calldlrnc dlign, forgiveness in the eyes of Hashem. To achieve this type of Mechila, it issufficient to return the stolen object. However, in order to attain dhnc dlign, forgiveness inthe eyes of man, one must not only return the object he stole, but also apologize and do Teshuva.

This ruling of Rashi is the same as the one the Rambam wrote approximately 150 years later.The Rambam ('c dkld 'ai wxt zecr zekld) discusses what it takes for people to be “kosher”for testimony or to be a judge in a Beit Din . He explains that one who has stolen an object mustnot only return the object to its rightful owner, but he must do Teshuva and acknowledge thatwhat he did was wrong. Until he does this, he will not be permitted to be a judge or a witness ina Beit Din.

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The reason we don’t accept a thief as a witness or a judge is because he is clearly influenced bymoney. Therefore, he cannot be trusted in the Beit Din because one of the parties may try tobribe him into testifying falsely (if he is acting as a witness) or they might bribe him to rule intheir favor.

The Radvaz explains why a thief needs to do Teshuva in addition to returning the stolen object.He says that in order to be eligible to be a judge or witness in Beit Din, the thief must no longerbe evil in the eyes of Hashem or evil in the eyes of man, i.e. in the eyes of the original andrightful owner of the object that was stolen, or others who were aware of the situation.

Further proof that a thief must do Teshuva in addition to returning the stolen object canbe found in the Tur Choshen Mishpat (34:15). The Tur seems to agree with the Rambam. Thenhe concludes his Halacha with the following statement: even after the thief has returned theobject or the money that he stole to the original owner, he is still disqualified as a witness.

The Beit Yosef, a commentary on the Tur, explains what the Tur means. The Beit Din does notaccept the thief as a witness or judge if he was forced to return the stolen property because thatshows that he did not really regret having stolen the object or money.

While none of the Poskim mentioned the phrases dlrnc dlign or dhnc dlign, which werephrases we coined while finding ways to articulate our point, all of the aforementioned sourcesheld that merely returning the stolen object is not sufficient. In order to be permitted to be ajudge or even to testify in Beit Din , a thief must return the object, do Teshuva , and thenacknowledge that what he did was wrong, which coincides with our understanding.

We believe that in the eyes of Hashem, a thief is forgiven once he returns the stolen object to therightful owner. This is because the Torah mentions nothing of doing Teshuva; it only mentionsreturning the object.

In the eyes of man, i.e. the owner and the Beit Din however, a thief is only forgiven once hereturns the stolen object and performs Teshuva for violating the prohibition of eaepbz `l. Basedon the Poskim we cited, we believe that it is not only important to be seen with an Eyin Tov inthe heavens, but on earth too. In order to accomplish this, a thief who was previously seen withan Eyin Ra because of his acts of thievery, must not only return the stolen object, but performtrue Teshuva and receive Kapara for his sin.

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Section II

Miscellaneous Topics in Bava Kamma

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gqtd eilr xary ung `ede dlifb zaydReturning Stolen Chametz After Pesach is Over

Bava Kamma 96b - c"g 'um ;s tne tccby Natan Oliff and Max Brasch

It is mid spring and Moshe has done a meticulous job in preparing for Pesach. He has cleaned hishouse, the wonderful Seudah has been made for the Seder, and he starts searching his home tofind and get rid of the Chametz that lingers within the crevices and hiding places of his home.

There is one problem, however—a thief snuck into Moshe’s house the night before and stolesome of Moshe’s finest bread. And Moshe, not having the power to alter this particular situation,was unable to sell or burn the last of his bread even though he still technically owned it. IsMoshe in violation of the prohibition of owning Chametz on Pesach? Why should he beresponsible?! Should Moshe be penalized for an outcome which he did not have direct controlover?!?!

The question we followed was who in this scenario violated the prohibition of Chametz She’Avar Alav HaPesach : the Gazlan, the thief, or the Nigzal, the victim? The rule is that Chametzowned by a Jew during Pesach (called Chametz She’ Avar Alav HaPesach) may not be eaten orused in any way after Pesach. The reason Chametz owned by a Jew is forbidden after Pesach isbecause he violated the Mitzvot in the Torah of `vni lae d`xi la, Chametz should not be seenor in one’s possession during Pesach. The question in our situation is: who violated theprohibition of `vni lae d`xi la?

After a review of various sources we feel that the Gazlan is more at fault in this situation and theNigzal’s situation is understood by the Poskim in such a way that many are lenient regarding hisviolation of owning Chametz on Pesach.

One main source clarifies that the one who physically has the bread in his possession, althoughhe doesn’t own it, is held accountable for the prohibition. In the Chidushei Rabbi Akiva Eiger, itsays that it is clear from the Mishna in Bava Kamma (96b) that the stolen Chametz is forbiddenafter Pesach. Now the Nigzal, or Moshe in this case, should be considered an onus, or aninnocent victim of crime. Rabbi Akiva Eiger even goes so far as saying that Moshe could not beMevatel, or nullify, the Chametz due to the fact that the bread was not in his possession.Therefore, it ought to be the Gazlan who is held accountable while the Nigzal should be exemptdue to the fact that the Gazlan has the bread in his physical possession.

However Rabbi Akiva Eiger concludes that both the Gazlan and the Nigzal have violated theprohibition of `vni lae d`xi la, although the Nigzal did so inadvertently. Nevertheless, Rabbi

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Akiva Eiger feels that both of them suffer the consequences of Chametz She’ Avar AlavHaPesach.

The Shita Mekubetzet holds that neither the Nigzal nor the Gazlan violated `vni lae d`xi laand the Ramban rules that only the Gazlan has violated the Torah prohibition, not Moshe theNigzal. What needs explaining then is why the Mishna in Bava Kamma says that the Gazlan canreturn the stolen bread after Pesach. If it is Chametz She’ Avar Alav HaPesach, then it isworthless which means that Moshe suffers the consequences and not the Gazlan.

The Noda B’Yehuda ('k oniq miig gxe` `nw `xecdn) answers that in his opinion, since theNigzal is not at fault, the Mishna means to tells us that the Gazlan can return the Chametz afterPesach and Moshe, the Nigzal, would be allowed to use it because the Rabbis did not enact theirprohibition in such a situation where the owner is an Onus.

Therefore, after Pesach, Moshe should be able to sit back, knowing he is not held accountablefor Chametz She’ Avar Alav HaPesach, i.e. the Chametz returned by the Gazlan will not beforbidden to Moshe and he can enjoy a loaf of that, previously returned, delicious pumpernickel.

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dlifb ipipwe daipb ipipwHow and Why a Thief Acquires Stolen Property

Bava Kamma 97a - t"g 'zm ;s tne tccby Dovi Garfinkel, Noah Aberman, and Rafi Jacobson

It seems strange, but it is clear and can be seen throughout the Gemara that a thief can acquire anobject by stealing it. The question is to what extent does the thief own the object? Anotherquestion is why is the thief given any ownership in the first place? At first glance it appearsmorally incorrect for a person who steals an object to be rewarded with ownership.

The Gemara in Bava Kamma (97a) discusses whether a Gazlan (thief) must pay for use of theobject which he steals. Using the object will cause a loss to the owner through the depreciationin value caused by wear and tear. The Gemara says that if a Gazlan steals an object such as aboat and uses it, he must return the boat but he does not have to pay for using the boat.

The Shita Mekubetzet explains that when the Torah talks about making restitution for theft, itsays lfB x ¤W£ dl¥f §B ©dÎz ¤ ai ¦W ¥d §e. “He shall repay or give back the object that he stole.” TheTorah mentions nothing about payment for use of the stolen object. Even though, in almost allcases of theft we can assume that the thief intended to use the object.

It is clear from this Gemara that the Gazlan has “acquired” the object by stealing it (KinyanGezeila). Yes, it’s true that the Gazlan must return the stolen object but he does not have to payfor using the object while it was in his possession because it was considered to be his object. Asan owner, he does not have to pay for usage.

A second source to prove that a Gazlan “owns” the object he stole is from the Mishna inMasechet Bava Kama (62b) which discusses the special penalties associated with stealing andthen selling or slaughtering an animal ('de 'c inelyz). We learn from that Mishna that one whoslaughters or sells another person’s ox or sheep pays five-fold for the ox and four-fold for thesheep. However, if one steals the ox or sheep from another thief, he does not have to pay Kayfel(the double fine) and if he slaughters or sells the ox or sheep, he does not have to pay ArbaV’Chamesha (the four or five-fold penalty).

Later in the Gemara (69a) Rabbi Yochanan says that if a Gazlan steals an object and the ownerhas not been M’yaesh (i.e. the owner has not given up hope of recovering the object), thenneither the thief nor the owner can make the object Hekdesh (consecrated to the Temple). TheGazlan cannot make it Hekdesh because it is not “totally” his and the owner cannot make itHekdesh because it is not in his Reshus (domain). The object has passed into the Reshus of theGazlan and is no longer in the Reshus of the owner.

The Gemara explains that Rabbi Yochanan derives this from the Mishna on 62b. Why is it that ifa thief steals from another thief that he is exempt from Kayfel (the double fine). Furthermore,shouldn’t the second thief have to pay kayfel to the original owner?

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Rabbi Yochanan holds that the object is no longer in the Reshus of the original owner nor is it inthe Reshus of the first thief because, by stealing it, the second thief is granted limited ownershipover the object. Therefore neither the original owner nor the first thief can collect Kayfel.

The Gamara then quotes the pasuk, ('ci:'fk `xwie) ... 'd©l W ¤cŸw Fzi ¥AÎz ¤ W ¦C §w©iÎi ¦M Wi ¦ §e

And when a man sanctifies his house to be holy to Hashem, then the Kohen shall appraise it,whether good or bad; as the Kohen appraises it, so shall it stand. (Vayikra 27:14)

The word “Baiso” means “his house”. Just as your house is in your possession, so too anythingthat you want to make Hekdesh must also be in your possession. Therefore, Rabbi Yochananruled that that if a Gazlan steals an object and the owner has not been M’yaesh, then neither thethief nor the owner can make the object Hekdesh. The Gazlan cannot make it Hekdesh because itis not “totally” his and the owner cannot make it Hekdesh because it is not in his Reshus(domain). The object has passed into the Reshus of the Gazlan and is no longer in the Reshus ofthe owner. The Gazlan has attained “limited” ownership of someone else’s property.

The Mishna and Gemara here in Bava Kama are examples of laws that grant certain rights to theGanav that we would not otherwise think would be granted.

Another source where we find that a Gazlan “owns” a stolen object, is in Masechet Sanhedrin(72a) The Gemara says that a Ganav or a Gazlan are responsible to pay for Onsin – i.e. they mustpay money back to the owner even if an unavoidable accident occurred that destroyed the objectthey stole. Rashi explains that this ruling is based on the fact that the Torah exempts Shomrimfrom paying for Onsin “Im Lo Shalach Yado B’Meleches Rayahu” as long as the Shomerswears that he was not Sholayach Bo Yad (he did not use the object).

Now we may ask, if the Shomer was Sholayach Yad, i.e. if he did use the object withoutpermission, why should that make him responsible to pay for unavoidable accidents (Onsin)?According to the Gemara, one who is Sholayach Yad becomes a Gazlan and, as a Gazlan, he hasbecome responsible for everything that happens to the object, even unavoidable accidents. So why is a Gazlan responsible for Onsin? Tosafot (Masechet Bava Kamma 56b d”h Peshita)answers that it is because the Gazlan is now considered the owner (Kinyanei Gezeila), i.e. theGazlan takes the place of the owner and is therefore responsible for whatever happens to theobject. Who suffers the consequences of an Oness Gamur – a completely unavoidablecircumstance like a lightning strike or an earthquake? The owner! Thus, the Gazlan takes theplace of the owner because he “acquired” the object by virtue of the fact that he has aresponsibility to return the object, i.e. according to Tosafot the Gazlan becomes the ownerbecause of the Mitzvah of Hashava (returning the stolen object).

The Gemara in Bava Kamma (65a) states another case. A man steals a barrel of wine worth oneZuz. It appreciates in price to four Zuzim and he accidently breaks the barrel thus spilling out allthe wine. The Gemara says that the man must pay four Zuzim.

The Ketzos HaChoshen and the Nesivos Hamishpat argue (Choshen Mishpat Siman 34) aboutthis Halacha. The Nesivos HaMishpat says that the Gazlan is Chayav for breaking the item that

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he stole not for stealing the object itself. The reason behind this is that breaking the object is anindependent act of Gezeila separate from actually stealing the item. When the Gazlan stole theitem, he took it out of the Reshus of the owner. This was a Kinyan Gezeila making him partiallyan owner because he could still have returned the barrel to the owner. The original owner still“owned” the barrel that was stolen from him, the Gazlan just took the item out of his Reshus butdid not take away his ownership.

However, once the Gazlan broke the item, there is a new Kinyan of Shinui (making a permanentchange in the original object) and the Gazlan fully becomes the owner because there is no wayfor him to return the item that he stole making it totally removed from the original owner’sReshus.

The Ketzos states that in this case the Gazlan is Chayav as a Mazik (a damager) and he is notChayav for Gezeila. The Ketzos holds that the prohibition of Gezela takes place with the originalact of stealing and not at the time of the Shinui. So therefore, after stealing an object, the onlyreason a Shinui is Koneh is because you have the rights of ownership from the theft.

From all of these sources we have seen that the thief is given limited ownership of the stolenobject. But, as we asked originally, why should this be so? It appears morally incorrect for aperson who steals an object to be rewarded with ownership. Rav Soloveichik answers that we give the Gazlan limited ownership to make him responsible forwhatever happens to the object. If the object is damaged or destroyed, the thief must compensatethe owner. If the thief didn’t acquire responsibility then the owner would not be protected fordamages while the object is out of his possession. Without acquiring the object, the thief wouldbe able to return the object even if it were smashed to bits. Thus, says Rav Soloveitchik, givingthe Gazlan the Kinyanei Gezeila is the way in which the Torah protects the rights of the ownerand makes the Gazlan pay no matter what happens to the object.

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ezephwa wifdyk ezelcba oinelyzResponsibility to Pay for Damage Done as a Child

Bava Kamma 98b - c"g 'jm ;s tne tccby Mordechai Lis and Ben Eisenstein

A boy becomes Bar Mitzvah at 13 and can only be punished by a Beit Din from then on.However, there is a little bit more doubt regarding whether a minor assumes responsibility whenhe grows up to pay for damages caused as a child. There are some Gemaras that seem to indicatethat one would have to pay for damage he did as a child. However, those Gemaras are generallyspecific cases and most modern Poskim rule otherwise.

There is a case described by Rashi (`caer ied d"c) in our Perek in Bava Kamma (98b) in whichRav Ashi burned a shtar (a legal IOU) as a child and Rafram later made Rav Ashi pay the valueof the document back to its owner. This brings up the question of why Rav Ashi was made to payfor damages he had done as a child.

One possible explanation (that doesn’t require the reader to say that the Halacha is such that hehad to pay back) is that Rav Ashi was simply going above and beyond the law. A second answercould be that Rafram was wrong in making Rav Ashi pay back.

However, both of these solutions are unsatisfactory. Regarding the first answer, the Gemara saysthat Rav Ashi was “forced” to pay to by Rafram so that would not coincide with Rav Ashivoluntarily going above and beyond the law. The second answer is also unsatisfactory because itis not such a light thing to assume or say that Rafram, a noted judge, was wrong.

Another possible explanation is that of the Tiferes Shmuel on the Rosh ('g wxt) who quotesRashi (in Masechet Ketubot) as having a different version of the case. Rashi in Ketubot says thatthe case was one that came before Rav Ashi for adjudication and Rafram, as the chief judge,forced Rav Ashi to rule that an adult who burns someone’s IOU must pay the face value of theShtar. (Rav Ashi felt that, since the damage was indirect, the arsonist should be exempt frompayment.) Thus, according to this version, this case has nothing to do with children payingreparations as adults.

The Rosh ('g wxt) states clearly that one should avoid getting involved with children becauseone is Chayav for any damages one causes to a child’s property but the child is not Chayav topay if he damages someone else. The Rosh adds that a child is not required to make restitutioneven after he grows up. However, the Hagahot Ashri does not have the same opinion. He holdsthat the advice of the Rosh is not good because a child still has to pay when he grows up.

Another source that seems to indicate that a child is Chayav to pay upon becoming an adult is aSugya in Perek Shor Shenagach (Bava Kamma). The Gemara says there that if a child has anApotropos (court-appointed guardian) and the child damages something, the Apotropos must payout of his own pocket. Then when the child grows up, he must pay back the Apotropos. This

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Gemara seems to indicate that once a child reaches Bar or Bat Mitzva, they must pay for anydamage he or she caused when they were children.

However, this may not be an ironclad proof that applies to all children. It could be argued thatthis law only applies to cases in which there is an Apotropos, not in general, because otherwisethe Gemara would have said the more general case. While this approach seems somewhat meanto orphans because they have to pay for damages done as children, while other children need notnecessarily do so, it still seems to be the simplest read of the Gemara.

Another Gemara (Bava Batra 87b) says that one who gives a child an object has committedAviedah MiDa’at – he has knowingly caused himself a loss. This is because the child will not beresponsible to pay for damage done to the object or for the loss of the object. This seems toimply that children are not responsible for damages they cause and the onus is upon the owner ofthe object to protect it from children.

The Shulchan Aruch even says in Chosen Mishpat (424:8) that a Cheresh (deaf-mute), Shoteh(an insane person), or a Katan (a minor) that cause damage are Patur. The Shulchan Aruchspecifically mentions that even after the child grows up or the Shoteh becomes sane or theCheresh regain their senses, they remain Patur.

It seems to us that there are more sources that support the claim that a child does not have to payback as an adult. The main Amoraic text for saying they would have to pay back is suspectbecause it is not the same version that everyone has and there may be other explanations for whyit would seem to imply that children would have to pay back. It does seem that an orphan wouldhave to pay his Apotropos back when he becomes an adult, though this seems to me to be anisolated incident.

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opaxc oic e` `ziixe`c oic - inxbc `picIs Dina D’Garmi a Torah Law or a Rabbinic Enactment?

Bava Kamma 98b - c"g 'jm ;s tne tccby Ari Karesh and Jacob Zwelling

Garmi is a very difficult type of damage to define, and the various aspects of its Halachot are noeasier to understand, let alone explain. Many people often confuse Garmi with a more familiarterm, Grama. Both involve indirect damage. Simply put, damage is considered Garmi if itinvolves direct contact with the object damaged whereas Grama does not involve direct contact.

A typical example of Grama damage would be where someone unlocked someone else’s corraland his animals ran out and were injured or caused damage. In this case the “damager” onlytouched the gate of the corral, he never came in direct contact with any of the animals. TheHalacha is that the one who opened the gate is miny ipica aiige mc` ipica xeht, exempt in thehuman courts but he has a moral obligation to pay.

A typical example of Garmi damage is discussed in Bava Kamma (98b). The case is wheresomeone takes someone else’s IOU, that calls for a repayment of a $1,000 loan, and burns it.The direct damage is a burnt piece of paper worth a few pennies while the indirect damage is$1,000 because now the lender cannot collect the money owed to him. There is a Machlokes inthe Gemara whether one is Chayav for Garmi damage or not.

According to those who hold that one is Chayav for Garmi, there are many opinions as towhether it is a Din D’Orayta, a Torah law or a Din D’Rabbanan, an enactment by the Rabbis.Mefarshim such as Tosafot and the Ramban agree that it is a Din D’Orayta, whereas the Ritzvahstates clearly that it is a Din D’Rabbanan.

The Ramban explains in his inxbc `pic qxhpew many aspects of Garmi, and after pages ofexplanation, comes to the conclusion that Garmi is indeed a Din D’Orayta.

In Masechet Bava Batra (22b), Tosafot (zxne` z`f d"c) brings the opinion of the Ritzvah whoexplains that the Halacha of Garmi is based on a qpw, a rabbinic fine or penalty which wasestablished to prevent people from damaging others’ property using the technique of Garmi andgetting away with it. Therefore, says the Ritzvah, Garmi is a Din D’Rabbanan.

On the other hand, Tosafot explains that because the person himself directly caused damage toothers’ property (although he did so in a Garmi manner) - which is one of the fundamentalaspects in constituting a damaging act - it must be that Garmi is a Din D’Orayta.

With these drastically different opinions regarding Dina D’Garmi, there doesn’t seem to be away to reconcile them. Usually when there is a disagreement among the Poskim, there is acommon thread that allows for them to be combined, or even something that allows for one sideto be ruled out completely. That cannot be done here.

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There is, however, a third Posek, the odk izty (known as the Shach) who seems to reconcile theopinions of the Ramban and Tosafot with the Ritzvah.

In his commentary on the Shulchan Aruch ('gty oniq), the Shach discusses a case where aburglar comes to oae`x’s house and oae`x tells the burglar that his neighbor oerny has “betterstuff” for him to steal. In this scenario, assuming there was damage done to oerny’s propertyand “stuff” was taken, oae`x must pay for the damage and whatever was taken by the burglar.

The Shulchan Aruch then continues with a Halacha stating that if oae`x is planning on payingback oerny in real estate, it must be the best of his real estate. In his commentary, the Shach askswhy can’t oae`x pay with any quality of real estate he desires, why must he pay with the highestquality real estate that he owns? After all, Garmi is only a Din D’Rabbanan.

The Shach answersthat when the Rabbis enact a decree, they always do so in the same manner asother laws of the Torah. This principle is: oewiz `ziixe`c oi`k opax oewizc lk. The Rabbismake their decree seem like it is a Torah law even though it is not. Since paying with the best ofone’s real estate is a Torah-based requirement, the Rabbis instituted the same requirement fortheir decree.

By explaining that the laws of Garmi are technically D’Rabbanan but practically are D’Orayta,the Shach is able to reconcile the opinions of the Ramban, Tosafot and the Ritzvah. We believethat it is the Shach’s explanation that is most logical because it seems to fit well with with otherRabbinic decrees we encounter more often, such as the Mitzvah of reading the Megilla on Purim.None of the Mitzvot of Purim are Torah laws, but just like the laws of Garmi, they must betreated the same way a Din D’Orayta would be treated.

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dgnen `edy di`x `iadl hgeyd lr lhen i`n`Why Must a Shochet Prove He is an Expert?

Bava Kamma 99b - c"g 'ym ;s tne tccby Dovi Garfinkle, Rafi Jacobson and Noah Aberman

The Gemara in Bava Kama (99b) tells the following story: :jxht`e milebpxzl zignnc di`x izii` lif :dil xn`e ... opgei iaxc dinw ded `caer

A case came before Rabbi Yochanan in which a Shochet messed up while shechting someone’sanimal and the owner was demanding restitution. Rabbi Yochanan told the Shochet, “if you can

prove that you are an expert Shochet of chickens, I will find in your favor.”

The Rambam in Hilchot Sechirut ('d dkld 'i wxt) talks about the different scenarios in which aShochet would and would not have to pay for damages that he caused while slaughtering ananimal. The Rambam says that if the Shochet is considered an expert and he was paid by theplaintiff then he must pay for the damages but if he was doing it for free he does not need to pay.If the Shochet was not an expert, then it does not matter whether or not he was paid, he is mustpay for damages. We learn from this Rambam that a shochet must prove that he is an expertbecause if he doesn’t and he makes a mistake then he is liable to pay for the damages.

The Shulchan Aruch ('f w"q 'ey 'iq htyn oyeg), also talks about the case regarding a Shochetwho messes up a Shechita. The Shulchan Aruch says that a Shochet who is working for free andmakes a mistake needs to prove that he is an expert and if he does not than he must pay for thedamages that he caused.

We learn from all of these sources that a Shochet who messes up a Shechita must prove that he isan expert in order to be exempt from paying for the damages. The Ravad is confused by thisbecause throughout the Talmud, the general principle is that if someone has a monetary claimagainst another person, the plaintiff has to bring the proof, but in this case both Rabbi Yochananand the Halacha hold that the shochet, who is the defendant, must prove he is an expert.

The Ravad answers this question and quotes a Berayta of Isi ben Yehudah in Bava Metzia (83a). He says that in cases involving Shechita, the Shochet is considered a Shomer, a watchman.When the person who does the damages is considered to be a Shomer rather than a Mazik (adamager) it becomes a different situation than a typical case of a plaintiff and a defendant.

In cases involving a Shomer, the Torah demands that if there are no witnesses to corroborate theclaim of the Shomer, the Shomer must take a Shvuah (an oath) saying that he was not negligent.

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If there were witnesses to the damage, the Torah demands that the Shomer bring proof for hisclaim.

A second answer can be found in the words of the Shulchan Aruch. According to the ShulchanAruch, most people who Shecht animals are considered experts. If that is true, then why must aShochet who makes an error prove that he is in fact an expert? Can’t we just assume he is one?The answer is that we do not follow the majority in money matters. Since in this case the disputeis whether or not he must pay, we therefore say that we do not follow the majority, and theShochet must prove that he in fact is an expert.

The Har Tzvi brings a third reason that the one doing the damage must prove himself to be anexpert. He says that the whole dispute is whether or not the Shochet was an expert when he madethe error in the Shechita. And as the Shulchan Aruch says, we can presume that if a personperforms Shechita, he must be an expert. But if he truly was an expert, then why did he make anerror at all? Experts don’t usually make errors, and therefore, we can no longer presume that heis an expert. We have no choice but to tell the Shochet that sibce he messed up, he must bringthe proof that he is an expert.

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oicd zxeyn miptlGoing Beyond the Letter of the Law

Bava Kamma 99b - c"g 'ym ;s tne tccby Jacob Zwelling and Ari Karesh

Morality has always been a philosophical gray area. Religious codes and philosophic discoursethroughout history set up guidelines for and debate the true meaning of acting morally andethically. If someone lives his life according to what the greatest ethicists write, down to theletter, he still may not have lived up to the highest standards of morality.

In Halachic literature, the concept of going beyond the letter of the law exiagl mc` oia, in

man-to-fellow-man dealings is referred to as acting oicd zxeyn miptl, going beyond the letterof the law. There is no question that this concept exists. As Jews, we have an ethical obligationto do even more than what is required of us by standard moral protocol. We will examine thislaw and try to determine if it is a Din D’Orayta (a Torah-based law) or a Din D’Rabbanan (anenactment of the Rabbis). The Torah says::Li ¤zŸa£©l 'd r ©A §W¦pÎx ¤W£ daŸH ©d u ¤x ¨ dÎz ¤ Y §W ©xi §e z`aE Kl a ©hi¦i o ©r ©n§l 'd i¥pi ¥r §A aFH ©d §e xWI ©d ziŸ ¦yr §e

('gi:'e mixac)And you shall do what is proper and good in the eyes of the Lord, in order that it may be well

with you, and that you may come and possess the good land which the Lord swore to yourforefathers. (Devarim 6:18)

The Ramban says the simple meaning of this verse is that it is a general command to obey andcomply with all of the Mitzvot of the Torah. However, says the Ramban, the Rabbis saw here anencouragement to seek compromise and to go beyond the letter of the law. It is as if Hashem istelling us that after I have given you all of my statutes and laws, now I want you to do that whichis “proper and good” in everything you do, even in areas I have not commanded you.

The Ramban continues:dfeepzne e`yn lke eirxe eipky mr mc`d zebdpd lk dxeza xikfdl xyt` i`y itl ,lecb oipr

aehd dyriy llk jxca xnel xfg ... ,daxd mdn xikfdy ixg` la` ,mlk zepicnde aeyid ipewze

... ,xac lka xyideThis is a fundamental because it is impossible to list all of the possible interactions that a personmay have with his fellow man. Therefore, after listing several examples of proper and ethicalbehavior, the Torah gives a general principle - to always do that which is good and proper ...

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It would seem that according to this interpretation of the verse, the requirement to go beyond theletter of the law is a Din D’Orayta.

At times, the Gemara derives this principle from different sources than the one stated above. Forexample, the Gemara in Bava Kamma (99b) relates the following incident:

:dil dxn`e dinwl i`z` xgnl .`ed `ilrn :dl xn` ,`iig iaxl `xpic `ifg`c `zzi` `idd

oic iqwpt` aezke ,dldip ditlg lif :axl dil xn` ,il witp `w `le ,`ed `yia il exn`e dizifg`

`w xnbinl e`l inp `iig iax ,xnbinl ikixv `lc meyn ?ixihtc xeqi`e ekpc `py i`ne .yia wqr

:sqei ax ipzck Ÿcarc `ed oicd zxeyn miptl `iig iax ¦ira(g"i zeny)zia df Î mdl zrcede

,oicd df Î dyrnd z` ,dxeaw ef Î da ,mileg xewia ef Î ekli ,micqg zelinb ef Î jxcd z` ,mdiig

.oicd zxeyn miptl ef Î eyri xy`A certain woman asked Rav Chiya about a coin to see if it was valid (to decide if she should

accept it as payment for merchandise she had sold). Rav Chiya, an expert in coins, told her itwas valid. The next day she returned and told Rav Chiya, “I accepted the coin based on youradvice, but when I tried to spend it, no one would accept it.” Said Rav Chiya to (his assistant)

Rav, “give her a valid coin from our till and record the transaction on our books as one in whichwe lost money.” The Gemara asked why did Rav Chiya have to pay? The general principle of

law is that a recognized expert who renders his opinion is not liable for losses. The Gemaraanswers that Rav Chiya went beyond the letter of the law. As Rav Yosef expounded the verse inShemot 18: “And you shall teach them the path they shall walk in, and the deeds that they shall

do.” “And you shall tell teach them” refers to the Torah, “the path” refers to doing acts ofloving kindness, “they shall walk” refers to visiting the sick, “in” refers to burying the dead,“the deeds” refers to strict law, “they shall do” refers to going beyond the letter of the law.”

Another source using a different verse can be found in Masechet Bava Metzia (83a). TheGemara relates that Rabbah bar Bar Chanan hired workers to move his kegs of wine, and theybroke them. Since they didn’t do the job they were hired to do effectively, Rabbah bar BarChanan withheld the workers’ wages. They went to the court of Rav to sue. Rav told Rabbahthat he needed to pay their wages because he is a Talmid Chacham and he is obligated in LifnimMishurat HaDin.

As proof, Rav quotes a verse, not from the Torah, but from Mishlei (Proverbs) where it says:('k:'a ilyn) :xŸn §W ¦Y mi ¦wi ¦C ©v zFg §x ¨ §e mi ¦aFh K ¤x ¤c §A K¥l ¥Y o ©r ©n§l

In order that you act in good ways, and adhere to the paths of the righteous. (Proverbs 2:20)

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The unnecessary double language of the Pasuk suggests an obligation to act even above therequirements of morality. This is without question a strong textual proof of Lifnim MishuratHaDin. The problem is that Rav didn’t use a Pasuk from the Torah. Although the proof is validand strong, nevertheless, it seems to support the notion that this concept is not a Din D’Oraytabut a Din D’Rabanan. Otherwise, Rav would have cited a Biblical proof, not a proof fromProverbs.

Whether the concept of Lifnim Mishurat HaDin, going beyond the letter of the law is a DinD’Orayta or a Din D’Rabbanan, it should not be taken lightly. As it says in Bava Metzia (30b):`l` Î ?epiicl `zfibnc ipic `l` Î .dxez oic da epcy lr `l` milyexi daxg `l :opgei iax xn`c

.oicd zxeyn miptl ecar `le ,dxez oic lr mdipic ecinrdy :`ni` Rabbi Yochanan said: "Yerushalayim would not have been destroyed, save that they judgedaccording to the strict Law of the Torah." Asks the Gemara, should they then have judged

according the strong-armed and cruel judges (of the other nations)? Rather, the problem wasthat they insisted upon the strict letter of the law and did not practice Lifnim MiShurat HaDin

(going beyond the letter of the law).

This Gemara illustrates that there are consequences for not going beyond the letter of the law.The consequences might be in order to establish a heightened awareness of the Rabbinic Mitzvahin order to give it greater stature and liken it to a Torah commandment or the Gemara may justbe an allegory meant to teach the lesson of the importance of being the best ethicists we can be.Either way, it is important to always look to act as ethically and kindly with other human beingsas possible because each and every one of them was created BeTzelem Elokim (in the image ofthe Lord).

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ely epi`y xac xqe` mc` oi`One Cannot Render Someone Else’s Property Forbidden for Use

Bava Kamma 100a - t"g 'e ;s tne tccby Ben Schreiber and Noah Best

In Masechet Bava Kamma (at the bottom of t"g 'e ;s and the top of c"g 'e ;s) a case is discussedregarding the laws of inxbc `pic (a special type of indirect damage). A person owns a vineyardnext to someone else’s wheat field and the fence between the two fields falls over. The owner ofthe vineyard, who also owns the fence, refuses to rebuild the fence.

The problem is that by allowing the vines and wheat to intermingle, both the vines and the wheatare forbidden for use or any other benefit under the Torah prohibition of mi`lk, mixing differentspecies of grain together.

This prohibition is stated in the Torah in the verse:('h:'ak mixac) :m ¤xM ©d z © Ea §zE rx §f ¦Y x ¤W£ r ©x¤G ©d d ¨¥l §n ©d W ©C §w ¦YÎo ¤R m¦i ¨ §l ¦M L §n §x ©M r ©x §f ¦zÎ Ÿl

You shall not sow your vineyard with two kinds of seed; lest the fulness of the seed which youhave sown be forfeited together with the increase of the vineyard. (Devarim 22:9)

The Gemara rules that the owner of the vineyard, by virtue of the fact that he refuses to rebuildthe fence, must pay for the damage done by his vines to his neighbor’s wheat.

There is a problem, however. There is a well-known principle that appears throughout theTalmud which states that ely epi`y xac xqe` mc` oi`, a person cannot render someone else’s

property xeq` or forbidden. According to this principle, the wheat should not be considered

mi`lk because this status was caused by someone other than the owner.

This principle is also found throughout the Halachic writings. For example, consecratingsomething for Temple uses makes it forbidden for all other uses. Nevertheless, the Rambam inHilchot Kilayim ('g dkld 'd wxt) says that one cannot be yicwn (consecrate) something if it isnot his, meaning that he cannot set aside somebody else’s property to be donated to the Temple.

However, the Gemara in Masechet Chulin (`"r 'n sc) seems to contradict this principle. RavHuna tells us that a person must pay damages for slaughtering someone else’s animal in front ofan idol. This would seem to indicate that you could render someone else’s property forbidden.

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The Gemara explains that Rav Huna’s case is different. The reason the slaughterer is responsibleto pay for damages is because he makes a distinct change in the animal by slaughtering it.Therefore, this case cannot be used as an attack on the case in our Gemara because they do notshare the same circumstances, because in our Gemara the owner of the vineyard does not make achange to his neighbor’s wheat.

To answer our question, let us look at the Gemara in Masechet Yevamot ( a"re `"r 'bt sc)which discusses a case that sounds very similar to our case in Bava Kamma:

iqei iax .xi`n iax ixac ,ezeixg`a aiige ycw df ixd - exag ly ez`eaz iab lr eptb jkqnd

.ely epi`y xac xqe` mc` oi` :mixne` oerny iaxe If someone drapes his vines over his neighbor’s standing grain, he has rendered it forbidden

and must pay for the damages. So says Rabbi Meir. However, Rabbi Yose and Rabbi Shimon saythat a person cannot render someone else’s property forbidden.

Tosafot (xqe` mc` oi` d"c) asks, according to Rabbi Yose and Rabbi Shimon, why is this casedifferent than the case of someone who throws non-kosher meat into someone else’s pot? In thatcase everyone agrees that the food in the pot may not be eaten. To answer this question, Tosafotexplains that this principle only applies to situations where a person’s thoughts are sufficient tocause damage.

For example, if someone bows down to his friend’s cow in order to worship it, we say the cowdoes not become forbidden. Since worship depends on one’s thoughts and intentions, we can saythat those thoughts cannot render someone else’s cow forbidden. But if someone takes an action,like throwing non-kosher meat into someone else’s pot, the pot becomes forbidden with orwithout his intent.

Kilayim is the type of prohibition that requires intent. It is not sufficient that the grape seeds orplants co-mingle with the wheat seeds or plants. In order to violate the prohibition of Kilayimone must have intent to maintain the mixture. Thus, for example, if the plants accidentallybecame co-mingled and the owner immediately began to separate them, the plants do not becomeKilayim.

In our Gemara, however, even though Rabbi Meir agrees that the prohibition of Kilayim requiresintent, nevertheless, he is of the opinion that when the fence falls down, the wheat becomesforbidden. The reason is apparently, that Rabbi Meir believes that the subsequent co-mingling ofthe vines and wheat is an action and as such, the owner of the fence must pay for damages.

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Another approach to resolving this issue can be found in Masechet Kilayim ('c dpyn 'f wxt).This is basically the case quoted above from Masechet Yevamot. The Bartenura explains thatthis argument is rooted in the derivation of the prohibition of Kilayim. As we quoted the verseabove, the Torah says, “You shall not sow your vineyard ...”

Rabbi Yose and Rabbi Shimon say that since the Torah stresses “your vineyard” it implies thatthis prohibition does not apply to other people’s fields. Rabbi Meir, on the other hand, holds thatthe words “your vineyard” applies to the fields of all Jews. Furthermore, the Bartenura says thatthe Halacha follows Rabbi Meir and, therefore, one can cause somebody else's field to becomeKilayim and forbidden.

The answer of Tosafot that ely epi`y xac xqe` mc` oi` applies only to cases where intent isrequired seems to be the stronger because it seems to us to be the most logical. The principle wascreated by the Rabbis to protect people as much as possible from others who seek to destroy theirproperty.

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`pic `zeklnc `pic oipraDina D’Malchuta Dina - Not Just For Jews Anymore

Bava Kamma 113a - t"g 'dhe ;s tne tccby Ben Eisenstein and Mordechai Lis

One of the more important Halachic concepts governing the Jewish people while they are underforeign rule is that of Dina D’Malchuta Dina - the law of the kingdom (and, by extension, anyform of government) is the law.

This concept, however, was disputed among the Rabbis. Does the law of Dina D’Malchuta Dinaapply equally to gentile kings who rule over Jews, or only to Jewish kings? Differentcommentators and Poskim have different approaches to this question and, although there aredissenting opinions, the majority of Poskim rule that Dina D'malchuta Dina does indeed applyregardless of the religion of the king.

The first approach to this issue is the question of what gives a king his power. Like ThomasHobbes and Rousseau, the Rashbam in Bava Batra (54b) posits that governmental authority isdependent upon the consent of the governed. As the Rashbam (l`eny xn`de d"c) says:

... eihtyne jlnd iweg mpevxn mdilr milawn zeklnd ipa lky ...... (the law of the land is the law) because all the citizens agree of their own volition to accept

and follow the laws of the king and his statutes ...

According to the Rashbam, since the people have given their consent to be governed, they mustfollow the laws of the government they live under. Thus, Dina D’Malchuta Dina applies evenfor a gentile king.

The Rambam ('gi dkld 'd wxt dlifb zekld), expresses a similar view in the context of taxes:Jews must pay taxes if they have consented to be governed. If they have not, however, theRambam calls the king a thief.

Another approach is discussed by the Ran in his commentary on Masechet Nedarim. The king isallowed to enforce whatever laws he wants to because “the king owns the land!” The king cansay, therefore, “if you do not accept my laws, I will expel you from my land.” By this logic, thelaws of Dina D’Malchuta Dina would absolutely apply to a gentile king, for landowning is notdependent upon religion.

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This logic, however, says the Ran, (in an opinion shared by the Rashba), does draw a distinctionbetween Jewish and gentile kings, and seems to grant gentile kings even more power: A Jewishking cannot expel a Jew from the land of Israel, because every Jew is a shareholder, so to speak.A gentile king, however, can kick people out of his land for failing to follow his rules. Therefore,it is Halachic (as well as wise) to apply Dina D’Malchuta Dina to non-Jewish kings.

A third approach to these laws follows the Rambam ('`i dkld 'd wxt dlifb zekld), who statesexplicitly that no difference should be drawn between Jewish and non-Jewish kings in mattersregarding Dina D’Malchuta Dina.

His reasoning is explained by the Kesef Mishna. The Gemara in Bava Kama (113a) cites a casein which it is permitted to trick a tax collector in order to pay a smaller tax amount or to avoidthe tax entirely. The Gemara asks how this can be possible since the law follows Shmuel thatDina D’Malchuta Dina. The reason given by the Gemara is that the tax collector in question iscollecting illegally, he has not been authorized by the king to collect taxes.

However, argues the Kesef Mishna, a more simpler and more satisfying answer to that question,would have been that non-Jewish kings are simply different from Jewish kings, and that taxcollectors for non-Jewish kings, like the one the Babylonian Talmud would have beendiscussing, are not people Jews have to obey. The fact that the Amoraim did not give this answeressentially means that it is not true, and that there is no difference regarding Dina D’MalchutaDina between Jewish and non-Jewish kings.

The Halachic support, as shown, for the idea of Dina D'malchuta Dina extending to non-Jewishgoverning bodies is overwhelming. This conclusion manifests itself, L’Ma’aseh (practically) inthe real lives of Jews today - for those Jews who live in America, they must follow Americanlaw. Aside from saving our own skins, this Halachic mandate allows Jews all over the world toestablish themselves as real citizens of various countries, a right denied to them for manycenturies, as well as teaching a level of respect for authority, both of which are necessary tofunction in contemporary society.

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zrc zaipb oipraGeneivat Da’at - Deceiving Another Human Being

Bava Kamma 113a - t"g 'dhe ;s tne tccby Ben Schreiber and Noah Best

The Gemara in Bava Kamma (`"r 'biw sc) quotes the following case:ipica ,epipic jk :el xen`e edkf - l`xyi ipica edkfl leki dz` m` ,oicl e`ay qp` iprpke l`xyioi` :xne` r"x .l`rnyi 'x ixac ,oitiwra eilr oi`a - e`l m`e ,mkpic jk :el xen`e edkf - miprpk

.myd yeciw iptn ,oitiwra eilr oi`aIf a Jew and a strong-armed gentile tax collector come to the Jewish courts (and the gentile is

illegally demanding payment of taxes from the Jew), then if the court can find in the Jew’s favoraccording to well-known laws of the Torah, they should do so and inform the gentile that they

are following Jewish law. If the court can find in the Jew’s favor according to well-knownsecular law, they should do so and inform the gentile that they are following his laws. If neitherapproach works, Rabbi Yishmael says that the court should use subterfuge and trickery to savethe Jew from illegal seizure of his property. Rabbi Akiva says we should not use this approach

because it will cause a desecration of Hashem’s Name.

Although this case clearly has extenuating circumstances which might allow the court to usedeception to save the Jew from illegal seizure of his property, nevertheless, Rabbi Akiva isagainst using such tactics. In this paper we will discuss the general parameters of zrc zaipb,deceiving someone.

One of the Ten commandments is "Do not steal." Although this actually refers to kidnapping, italso encompasses stealing someone’s monetary property. According to the written text, onemight think that they can literally “steal somebody’s mind”. In other words, one might think thatit is permissible to deceive somebody by holding back pieces of information or twisting the truthwithout out-and-out lying. Nowhere in the written text does it explicitly state that one cannotdeceive his fellow man. Nonetheless, it is quite clear in the Halachic literature that one cannotdeceive or cheat his fellow man even when there is no monetary loss involved. Although there are no explicit prohibitions against zrc zaipb in the Torah, there are manyreferences and hints to it in the written text. First and foremost, there is the prohibition of placinga stumbling block in front of a blind person (Vayikra 19:14). Rashi interprets this phrase to meanthat one cannot deceive another person by providing them with information which leads themdown the wrong path. For instance, one may not tell his friend that the market conditionsindicate he should sell his house in order so that he can buy the house.

Another hint to the prohibition against deceiving someone can be found in Genesis 31:20-26.Jacob does not inform Lavan that he and his family were leaving Lavan’s household for good.The language used is: i ¦O ©x£d oal a¥lÎz ¤ aŸw£r©i aŸp §b¦I ©e, and Jacob “stole the heart” of Lavan theAramean. Another Biblical source can be found in Samuel II 15:6 where it says: l ¥ xŸ §y¦i i ¥W§p © a¥lÎz ¤ mFlW §a © a¥P©b§i ©e and Avshalom “stole the hearts” of the people of Israel.

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The first Halachic source for this prohibition is found in Masechet Chulin (94a). Shmuel statesthat is forbidden to deceive a person even if that person is an idol worshipper.

The Rambam ('e dkld 'a wxt zerc zekld) states that a person’s mind and heart must be alignedand must say the same thing. Even uttering a word out of line is considered zrc zaipb. TheKesef Mishnah adds that that all zrc zaipb is prohibited unless it is used to promote and givehonor to an important individual in front of a crowd. However, is zrc zaipb permitted when the purpose of doing so is to learn more Torah or tobenefit the community? A similar question was posed to Rav Moshe Feinstein in regards tocheating on the Regents exam in New York. The question was could Jewish Yeshiva studentsobtain the answers to the New York State Regents exam prior to the test so that they would needless time to study for the exam and, thereby, have more time for learning Torah.

Rav Moshe Feinstein (Responsa Igrot Moshe, Choshen Mishpat II, No. 30) responded that suchtactics were absolutely prohibited and that there were “no circumstances” under which such“cheating” would be allowed. Rav Moshe came at the issue from several directions.

Cheating is against the law of the land and is therefore illegal according to the Torah too.The prohibition of zrc zaipb applies even when there is no monetary benefit. If you are accepted to a University or hired for a job based on your illegally obtained testscores, you have committed fraud. The University or employer thinks they are gettingsomeone more competent than he actually is.The University or employer may turn away someone more qualified because your test scoreswere higher. This is unfair competition and is stealing from others.Cheating cultivates bad habits such as taking shortcuts and sloppy work which, in the endwill only harm the cheater himself.

Another question that was posed to many Poskim was whether one can inflate his pledge to anorganization to cause others to think that the institution or charity is more successful than itreally is. The Responsa Yosef Ometz clearly states that the prohibition of zrc zaipb applies inthis case. He connects the prohibition to deception of one’s community as well, in convincingpeople that one will donate a lot of money to charity, when in fact his pledge is not matched byhis actual donation. Although the motive in the original question posed was to encouragedonations to charity, nevertheless, as Rav Moshe Feinstein said, the prohibition of zrc zaipb isso severe that one may not deceive his fellow even to perform a Mitzvah.

In everyday life, there are many situations where one can find themselves in position to deceivesomebody else for their own benefit. There is one underlying theme in all of the Halachicopinions we researched: deceiving another human being, Jew or gentile, is strictly prohibitedunder all circumstances. Furthermore, one may not remain silent and be an innocent bystanderwhen you see someone being cheated or deceived. Being a silent bystander makes one complicitin the prohibition of zrc zaipb.

(1)(2)(3)

(4)

(5)

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icedi epi` lfb oipraGezel Aino Yehudi - Stealing from a Gentile

Bava Kamma 113b - c"g 'dhe ;s tne tccby Max Brasch and Natan Oliff

According to the Torah, stealing from a fellow Jew is prohibited; however, there is a Machloket(argument) among the Rabbinic authorities regarding stealing from a gentile. Obviously, one isnot allowed to steal from a non-Jew solely to steal. However, some circumstances have less clearcut answers. What category of stealing is being performed? Why is he stealing? Is he activelyattempting to steal, or simply refusing to return something? Are there circumstances in whichstealing from a non-Jew would be permitted? Nevertheless, most sources deem stealing fromgentiles as strictly prohibited, despite the circumstance.

The original source for this discussion is found in Bava Kamma (113b). Rabbi Akiva and RavHuna cite different sources for this issue. Rabbi Akiva believes that stealing from a gentile isprohibited in all situations and cites verse:

('gn:'dk `xwie) :EP¤l ¨ §b¦i eig ¤ ¥n cg ¤ FNÎd¤i §d ¦Y dN ª§B x ©M §n¦p i ¥x£g ©

After he has been sold, he shall have his freedom, one of his fellow Jews shall redeem him.(Vayikra 25:48)

In context, this verse refers to a Jew who is working for a gentile. The Jew’s freedom must bepurchased from his gentile owner, he cannot be stolen away from his owner. We see from thisverse, says Rabbi Akiva, that we are required to be honest in dealings with gentiles.

Rav Huna, however, partially disagrees, citing a different verse:('fh:'f mixac) ... Kl o ¥zŸp Li ¤wŸl¡ 'd x ¤W£ mi ¦O ©rdÎlMÎz ¤ Y§l ©k ¨ §e

You shall consume all the nations that Hashem your G-d has given you ... (Devarim 7:16)

No, the phrase “you shall consume all the nations” is not teaching us a Mitzvah of cannibalism.Rather, it teaches us that when Hashem gives us dominion over and we defeat the other nations,we are not required to return their spoils. But if we are not at war and we do not have dominionover the gentiles, then we are prohibited from stealing from them.

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The Ramban and Rambam rule that stealing from a gentile is prohibited. The Ramban rules verystrictly in Seder Nezikin, stating that stealing from a non-Jew is an Isur D’Orayta (a Torahprohibition).

The Rambam calls robbery, or the act of Gezela, a chilul hashem, a desecration of Hashem’sName. If an act causes Hashem’s Name to be desecrated, then doing the act in private (liketheft) should also be prohibited. This is best explained through an example: A Jew should notcurse in public, but that does not mean he should curse in private.

A Jew should not act ethically to garner positive reviews from others. A Jew should be ethicalbecause the Torah commands him to act in ethical ways. He should strive to reach a level ofcharacter perfection in which kindness is the very backbone of his being, in which stealing fromanyone is prohibited.

This ideal of striving to be an ethical person can be categorized under the principal of LifnimMishurat Hadin, or “beyond the letter of the law.” The Gemara in Bava Kamma discusses caseswhere certain figures would commit a certain act of kindness not required by halacha. Why?Because these individuals took it upon themselves to be ethical human beings and go above theletter of the law.

Jews who are true Tsaddikim (righteous individuals) pursue opportunities to perform ethicaldeeds and Mitzvot. They do not look for loopholes in the Torah, such as the Shabbos App or theShabbos Switch, for example, but rather, they embrace Shabbat and the holiness of the day.Therefore, whether stealing from a gentile is permitted or not is of no importance. Stealingshould not even cross the mind of a Jew who wishes to live a Torah lifestyle.

After researching and pondering the idea of stealing from a non-Jew, we came to the conclusionthat ethically, and religiously, it is against the Torah. The position that struck us as innately“right” was Ramban’s opinion which referred to stealing from a non-Jew as a violation of thelaw of the Torah.

It seems that the purpose for many Jewish laws stem from one motive; to, in essence, “fix” thisworld and be an or legoyim, a light unto the nations and to fulfill the tremendous Mitzvah oftikun olam, perfecting the world.

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