Story LineToo Close for ComfortMeir Orlean
Mr. Gold planned to be with one of his children for Yom Kippur. Two days beforehand, though, his plans fell through and he had to stay at home. He approached the gabbai of his shul to ask whether there were any seats still available.
“We’re almost at 100% capacity,” said the gabbai. “All the regular seats, including where you usually sit during the year, are sold. I’ll see what I can do. There is one seat toward the back of the shul with a question mark that might be available.”
Mr. Gold looked at the seating chart. The seat with the question mark was right next to Mr. Fine.
“This will be interesting,” Mr. Gold mused to himself. “Mr. Fine borrowed money from me almost a year ago and claims that he cannot pay. I know that he’s in an extremely difficult financial situation, but perhaps my sitting next to him on Yom Kippur will pressure him to pay. I don’t see how he can bear facing Hashem when he has that debt to me still outstanding!”
Later in the evening, the gabbai called Mr. Gold. “I checked, and the seat in the back is available,” he said.
Mr. Gold thanked the gabbai for arranging the seating. He mentioned casually that Mr. Fine owed him money and that perhaps some additional good would come out of the seating. The gabbai listened attentively. “Hmmm,” he said quietly. “I don’t know that Yom Kippur is the time to seek repayment of debts.”
“Why not?” replied Mr. Gold. “Repaying debts is also part of teshuvah. Anyway, I don’t plan on saying anything to Mr. Fine. Some tact I have!”
When Mr. Gold came to the shul that evening, he saw that the seats had been rearranged, and that he was placed far from Mr. Fine. During the break, he approached the gabbai and asked why the seats were rearranged.
“When I heard your story, I wasn’t sure whether I should seat you near Mr. Fine,” explained the gabbai. “I spoke with Rabbi Dayan, and he said that you should not be seated near him.”
What’s wrong with seating Mr. Gold near Mr. Fine?
“Undoubtedly, the borrower must make every effort to repay his debt; repayment of debt is a mitzvah,” explained Rabbi Dayan. “Nonetheless, the Torah (Shemos 22:24) teaches that the lender cannot act as an [oppressive] creditor. The Gemara (B.M. 75b) interprets this to mean that he should not demand from the borrower when he knows that he cannot pay. He should not even pass before the borrower, since this will cause the borrower to feel embarrassed” (C.M. 97:2).
“It’s true that you occasionally bump into Mr. Fine in shul. Aruch Hashulchan (97:2) writes that if time has already passed so that the borrower has gotten used to the situation, and the lender does not intend to embarrass him and cause suffering, he is allowed to pass before him. But you should not be seated deliberately near Mr. Fine.”
“What if the lender doesn’t know whether the borrower is able to pay?” asked Mr. Gold.
“If the lender doesn’t know, he may demand repayment of the loan,” replied Rabbi Dayan. “In addition, if the borrower has assets or belongings beyond his basic sustenance that Halachah would require him to sell, the creditor may demand the loan (C.M. 97:23; Minchas Chinuch 67:1; Kesef Kodashim 97:2; Shulchan Aruch Harav, Halvaah #2).
Thus, in many situations the prohibition would seemingly not apply. Nonetheless, some write that if the lender does not expect the borrower to sell his belongings, but rather pressures him to procure money that he does not have by borrowing or receiving tzedakah from others, or if the borrower has prior debt greater than his assets, the prohibition applies” (Beis Aharon V’Yisrael, vol. 23, pp. 68-76; Pischei Choshen, Halvaah 2:8).
Ruling: A creditor may not demand payment from a borrower or intentionally pass before him when he knows that he is unable to pay.
From the BHI HotlineA Sukkah in the Street?
Q: I have no yard or porch on my property. I want to build my sukkah on public property, but some neighbors have told me that I can’t do so because it prevents the public from using that space in a normal fashion. Are they correct, or may I build my sukkah there?
A: Rabi Eliezer (Sukkah 27b and 31a) derives from a passuk that just as a person cannot fulfill the mitzvah of arbaah minim if they are not his, because the Torah says, “Ulekachtem lachem — take for you,” the same applies to the mitzvah of sukkah, regarding which the Torah states, “Chag hasukkos taaseh lecha” (Devarim 16:13), which means that the sukkah must belong to you. The Chachamim argue with Rabi Eliezer, however, and maintain that a person may fulfill the mitzvah by eating in someone else’s sukkah; they deduce from lecha that one is prohibited from using a stolen sukkah.
But this applies only to a sukkah that is mobile, such as one built on a ship. If someone steals a sukkah that is connected to the ground (mechubar l’karka), he may fulfill the mitzvah in it. This is because real estate cannot be stolen (Choshen Mishpat 371:1; Orach Chaim 637:3), for it cannot be removed from the owner’s property and become the possession of the thief the way an object can. Therefore, even when a thief is living in stolen property, it is considered as though he has borrowed it. Since the Chachamim hold that a person can fulfill the mitzvah of sukkah in a borrowed sukkah, if someone forced another person to leave a sukkah that is mechubar l’karka, it is considered as though he borrowed the sukkah and he may use it to fulfill the mitzvah.
Similarly, if he stole someone’s property and built a sukkah on it, he would be able to fulfill the mitzvah in that sukkah.
But this is considered a valid fulfillment of the mitzvah only b’di’eved, if he already sat in the sukkah. Obviously, one is not permitted to force someone out of his sukkah in order to use it, and he may not even borrow a person’s sukkah without asking permission, because we assume that the owner might not want someone violating the privacy of his sukkah (Orach Chaim, ibid.).
There are two reasons why using such a sukkah is not permissible l’chat’chilah: One, to some extent it is considered a mitzvah habaah b’aveirah (a mitzvah that came about through an aveirah), even if it is not completely invalidated due to that rule (Levush ibid. 3; see Ran, Sukkah 12b in the Rif folios). Two, because of the issue of lecha discussed above. The Chachamim allow the use of a borrowed sukkah because once the owner gave his consent for the person to use it, it is considered lecha. If someone stole or was a squatter in a sukkah, however, it is not considered lecha. Some Poskim rule, in fact, that although b’di’eved eating in such a sukkah is not as bad as eating outside of a sukkah, one still may not make the brachah of Leisheiv basukkah in such a sukkah, and if he did, it is a brachah l’vatalah (Magen Avraham ibid. 3 and Shulchan Aruch Harav ibid. 11; cf. Eliyahu Rabbah 4 and Mishnah Berurah 10 who rule that if he has no other sukkah to use, he may recite the brachah).
Based on these sources, many Poskim rule that one may not build a sukkah in the public domain. Even if the entire city is inhabited by Jews who, we assume, are willing to allow sukkos to be built on public property, the public domain also belongs to anyone else who ventures into the city — including non-Jews who are not willing to forgo their rights to use that space unimpeded. A sukkah built in such a space would therefore be considered a stolen sukkah, and he cannot recite the brachah of Leishev basukkah (Magen Avraham and Shulchan Aruch Harav, ibid.).
Other Poskim argue that there are circumstances in which it would be permissible to build a sukkah in the public domain. They agree that if the sukkah obstructs or impedes public passage, then it is prohibited. If, however, it is built near a house, leaving ample space for the public to pass relatively unimpeded, it is permissible.
The Poskim offer several reasons for this leniency. First, such a sukkah in not considered “stolen” because the person building it is merely borrowing the space for a brief period. Furthermore, as long as others saw him building the sukkah and did not protest, he would not even be considered a sho’el shelo mi’daas (one who borrows something without requesting permission), because we take their silence as implicit consent to his use of the public domain.
In addition, since dina d’malchusa dina (local civil law is binding), if the local government does not protest people building sukkos, then it seems that they consent to the use of the public domain for this purpose, and their consent is binding. Certainly, if the local government has expressed their consent to sukkos being erected in the public domain, then that consent is binding (Mishnah Berurah ibid. 10, with Bei’ur Halachah; see also Bnei Yissaschar, Tishrei 10:5).
Money mattersExcessive Shadchanus Fee#479
Q: An older bachur offered an excessive shadchanus fee to whoever would find him a shidduch. Is he liable to pay this excessive fee?
A: Rema rules that the shadchan is entitled only to the standard fee, even if he arranged for a large fee. The shadchan is doing a mitzvah and is comparable to a ferry boat operator who stipulated an excessive fee to transport to safety someone who was being chased, yet is entitled only to the standard ferry fee (C.M. 264:7).
However, Shach (264:15) cites Maharshal that the shadchan is entitled to the stipulated fee. Ketzos (264:3) also rules that if the shadchan invested time, effort or money in arranging the shidduch, he is entitled to the stipulated fee, since he entailed some loss. Other Acharonim follow the ruling of the Rema. Some distinguish between a professional shadchan and a regular person (Pischei Teshuvah 264:8).
Regardless, if the bachur signed a contract with the shadchan, so that he cannot claim insincerity, he is liable for the full sum (Pischei Choshen, Sechirus 14:5).