The Ethics of Halachic Loopholes and More Bava Basra 69-71

69

Law of Attraction

Our Gemara on Amud Beis offers a proof text for the concept of field boundaries within a sale

from the biblical story of Avraham’s purchase of the Ma’aras Hamachpela cave from Efron (Bereishis 23:17).

וַיָּ֣קׇם  שְׂדֵ֣ה עֶפְר֗וֹן אֲשֶׁר֙ בַּמַּכְפֵּלָ֔ה אֲשֶׁ֖ר לִפְנֵ֣י מַמְרֵ֑א הַשָּׂדֶה֙ וְהַמְּעָרָ֣ה אֲשֶׁר־בּ֔וֹ וְכׇל־הָעֵץ֙ אֲשֶׁ֣ר בַּשָּׂדֶ֔ה אֲשֶׁ֥ר בְּכׇל־גְּבֻל֖וֹ סָבִֽיב׃

So Ephron’s land in Machpelah was established, near Mamre, the field with its cave and all the trees anywhere within the confines of that field.

The Hebrew word for establish is vayakam, which literally means stood up, but metaphorically means to be established or set up. The pashut peshat is that the Ma’aras Hamachpelah became known and ratified as belonging to Avraham. But the word has an implication of standing up and rising, and the Midrashic explanation is that by virtue of becoming attached to Avraham, the entire parcel of land became elevated. Even within that Midrash, there is pashut peshat and derash. It could be referring to the market value, given who the owner was and the esteem people held for him locally. Or, the field would be elevated in value based on the spiritual stature and whom its owner now became.

Taking this one step further, Yismach Moshe (Vayishlach 16) discusses the idea of how possessions of the righteous person become tools of divinity, and therefore fulfill their purpose for which they were designed. It is the kabblastic notion of the Holy Sparks, that is the holy potential, within Physical matter that must be liberated. Efron’s field became elevated because now it served its true purpose; the divine intent for its existence.

Yismach Moshe explains Yaakov’s choice of gifts to his brother Esav similarly. The verse uses an unusual phrase (Bereishis 32:14):

ויקח מן־הבא בידו מנחה לעשו אחיו

Yaakov selected from what was at hand these presents for his brother Esav

The phrase, “from what was at hand”, begs interpretation. Yismach Moshe says this is based on the idea above, Yakov was able to find the material and possessions that needed redemption through this action. By being open to accepting  “what came to his hand“, quite naturally, the possessions gravitated towards him.

This represents an important theological and mystical idea of how to tap into spiritual currents. We should not try to force things, but somehow or another feel where there is an opening. This idea of a relaxed focus and mindfulness, but not trying to push something, is found in our tradition.  For example, we have this idea of lo mistaye milsa which means that a sage encountered unusual difficulty in accomplishing what he set out to do, and assumed there was a divine message in that difficulty. He did not keep trying, but instead realized that there was resistance that hinted this was not his time or place to focus his energies. (See for example, see Sanhedrin 14a, regarding an incident where Rabbi Yochanan tried to ordain Rabbi Ḥanina and Rabbi Hoshaya, but after several unsuccessful attempts aborted the effort.) This mindful attention without aggressiveness or control, allows for important, spiritual, and emotional pathways to remain open and influential. Because it is so instinctively felt to be true, it is found in many other religious practices as well.

Chovos Helevavos (Bitachon 3) works with this principle in a similar fashion. He says, that though some people are blessed with easier pathways to economic success, and others more difficult ones, it is all in the hands of God. God decrees that one must try hard, but not too hard. That our efforts yield direct results are illusory. God wants our efforts but only as a condition. The cause is due solely to Him.

Chovos Halevos says, just as animals have natural intuition to find ways to sustain themselves in the wild, every human being has innate talents and enjoy doing a particular kind of work or craft. When one senses that, that is a sign from God that it is their chosen profession. Of course, Torah study and teaching can be a chosen profession as well, and there are indeed persons who have unusual and political abilities, empathy, and creativity that are all required for dynamic rabbinic leadership.

70

The Psychology and Ethics of Legal Loopholes

Our Gemara on Amud Beis describes a legal loophole, that allows for something akin to charging interest, which is normally forbidden. It is the framework on which modern day heterei iskas are formulated. Without going into the legal technicalities, we must ask ourselves is it moral to take advantage of a loophole. But in order to answer that, we must ask ourselves what is the function of a loophole.

Law is confining and constricting. It doesn’t make a difference whether you are dealing with Torah law or secular law. This is because you cannot change the definition of something and the ways in which the system compresses and causes the participants and features to behave in response to that systemic pressure. A law is a human process by which general principles of welfare for a large group are imposed upon everybody in a net gain scenario. Law applies general rules to help society, even if certain individuals do not benefit or even suffer. This is by definition a necessity for law. It is only logical because if there were a way to meet all the needs of every individual in a non-contradictory fashion you wouldn’t need law. Why decree something when it is self-evident benefit everybody? Law is not Torah, but Torah is a form of law. The Torah takes many human processes and adapts them within a structure of commandments. As an extreme example, having babies or eating is a human process, but it is co-opted and directed by the Torah in a particular fashion. This is what the Torah does with Law. Law is human and Torah uses the process of law.

The Rambam famously explains in the Guide for the Perplexed (III:34) that the commandments are generally for one of three purposes: To promote physical health, spiritual health, or the smooth running of society. But just as general welfare and survival are provided by natural processes, yet individuals may have diseases or defects that nature does not protect them from, so too the Torah is designed to help the majority, and we might even say the minority for the majority of the time. But there may be times, or individuals, in which the Torah causes suffering and individuals at individual moments are hurt by a particular Torah requirement.

Caution is required here in understanding Rambam’s idea. He is not advocating that an individual customize his Torah obligations, even if he could verify with absolute certainty that this aspect of the Torah holds him back from experiencing “shleimus”. This person must still follow the laws. This is similar to civil law: One is not exempt from obeying the law that is designed to promote the greatest good and common welfare, even if he can offer a strong argument why it does not promote his personal welfare. The Torah is still a legal system aside from a spiritual system. So even though Rambam states firmly that it is indeed possible for a Torah requirement to be in some way unhelpful or destructive to an individual at a certain point in time or in life, the legal obligations remain unchanged.

This helps us understand the function of a legal loophole.  It is moral and ethical when it is done with the sober and seasoned judgment of a pious, empathic sage – because it fights fire with fire, so to speak. The same strictures that compel and sometimes affect people and situations in an arguably unfair and sweeping manner can be manipulated to free them. Loopholes should not be used to become a Naval Bereshus HaTorah (a morally disgusting person who behaves within the confines of what is technically permitted.) Rather, loopholes should be used to rectify and adjust some thing that apparently is no longer working, and after careful consideration, the rabbis of the generation used whatever tools they have to shift the law. Loans in particular, is an area where there already is precedent for this kind of rabbinic activity. Long ago, the great sage, Hillel, instituted the Pruzbol which used a legal loophole (transfer of debt to real estate liens by the Sanhedrin) to circumvent the cancellation of debts during the Shemittah year (Mishna Gittin 4:3). On the surface, what could be more cynical and disrespectful to Torah law than to effectively neutralize via judicial manipulation what is an innovative and brave, socially ideal model of canceling debts every seven years? This idea of canceling debt is so self-conscious and clear that there is no way that anybody could minimize the intention of the Torah, which is obviously to limit a sense of personal attainment of wealth and increase a sense of brotherhood and shared fate with those who are less successful financially. How could Hillel have done such a thing, even if it was technically legal? The answer given by our sages is that Hillel saw that as the sabbatical year drew near, it became too great of a test to not withhold lending. And, the mere act of withholding based on that fear is itself a prohibition. As it states (Devarim 15:9):

Beware lest you harbor the rebellious thought, “The seventh year, the year of remission, is approaching,” so that you are mean and give nothing to your needy kin…

Hillel did not want people to continuously violate this commandment, so he found a loophole to work around the nullification of debts. But if everybody was eating swine, would we find a way to permit it? Obviously not. The deeper issue must be that Hillel, with a seasoned sagely tradition of the depths of Torah, values and intentions, ascertained that the economic realities changed enough.  Lending of money and payment of loans occupied a different emphasis in life. Money is money, and lending is lending, but the more complex the economy is the more one is subject to fiscal dynamics. Hillel felt that the loophole was appropriate, given the needs of the generation and the fiscal realities.

Therefore, at some point the collective rabbinic consciousness took a feature of the law, built on precedents such as the iska of our Gemara and began using it in a wholesale fashion. But just as the Pruzbol was made to preserve a deeper need over that particular law of debt cancellation, because of people did not lend money there would be no debts to cancel. In the case of lending money before Shemittah, if no one would lend money that year, in the end, people on the lower end of the financial class would suffer more. So too in regard to usury, while money lenders can be exploitative, the ability to lend money freely and charge reasonable interest, actually benefits everybody in the economy. Think of the American way of life where it is impossible for anyone who is middle-class to purchase a home without the ability to obtain a mortgage. This system is a cornerstone of the economy and cannot easily be eliminated.

Another interesting loophole is how chametz is sold by many people before Pesach. Although there are some who do not utilize this heter, the argument in favor of it is similar. Modern life necessitates a different relationship with food and how we store it. While in earlier times grain could be stored in a fashion where it was not considered chametz, our flour is already considered chametz, aside from frozen foods, canned foods, etc. It is not economically feasible for most people to destroy chametz every Pesach.

We see therefore, that judiciously applied loopholes are an appropriate way of preserving the law and working within the law. This is true for secular as well as Torah systems because just as electricity behaves like electricity no matter where you are, Law behaves like Law no matter where you are.

71

To Pray Like a Newborn Baby

Our Gemara on Amud Aleph continues the sugya of ayin yaffa, that certain sales and/or gifts are done with a generous spirit which implies that certain extras may be included in the sale or gift. As we have seen in other blogposts, the idea of a gift of being given generously with extras also applies to spiritual gifts.

Siach Sarfei Kodesh (Erev Shabbos Kodesh) uses this principal to explain an unusual phrase in the Shabbos morning Amidah. We say:

ישמח משה במתנת חלקו

Moshe rejoiced in the gift of his portion.

From the rest of the context of the prayer, the simple meaning is, as Moshe received the Tablets and divine blessings at Mount Sinai, amongst them, we received the gift of Shabbos.

Nevertheless, it is an unusual phrase. Really, what does Moshe’s gift, and his being happy with it, have much to do with Shabbos?

Siach Sarfei Kodesh explains, based on the Gemara (Shabbos 88a): When the Jews said, “We will do” before even “We will hear,” 600,000 ministering angels came and tied two crowns to each and every member of the Jewish people, one corresponding to “We will do” and one corresponding to “We will hear.” But when the people sinned with the Golden Calf, 1,200,000 angels of destruction descended and removed them from the people.  The Gemara goes on to say that Moshe merited all of these crowns and took them. Siach Sarfei Kodesh quotes a tradition that when the Jewish people keep the Shabbos, those crowns are returned to them.

We have learned that, even according to the opinion that a sale is not done with a generous heart, a gift always is. Since Shabbos is described as a gift and that Moshe gives it to us b-ayin yaffa, a generous spirit, the crowns get thrown along into the deal. We pray that Moshe rejoice in the gift because we hope we are worthy to have received these crowns once again.

I find it remarkable how we say so many prayers, and do not necessarily reflect on the depth of meaning, and turns of phrases. I have been saying this prayer since childhood, and it never occurred to me to wonder what is the reason that we are asking for Moshe to rejoice? One should make time to study beyond the translation of the prayers, but the possible meanings within them. Mishna Berurah (101:2 and 98:1) instructs one to study the meaning of the prayers, and also to not be distracted from the basic emotional and spiritual connection. One should study the meaning before praying, not during prayers. He notes that a pious mystic, about whom it was known that after he learned the secrets of Kabbalah,  he prayed with the simplicity of a newborn baby. This is similar to a chassidish peshat from the Baal Shem Tov (Toldos Yaakov Yosef, Eikev 81) in the Talmudic teaching (Berachos 17a), “To be arum cunning in one’s God fearing efforts.” The Hebrew word for cunning “arum” is a homonym for naked. The Besht says, when encountering God, one should be stripped naked of ego and self-ambition, and encounter God with a child-like naïveté.