Parshas Eikev 5785 – Intriguing Questions & Answers
Someone Gave a Mezuzah for Checking or Repair, and the Sofer Made it Posul — Is He Obligated to Pay?
Q: It often happens that tefillin and mezuzos are sent for inspection or repair, and in the course of the repair or inspection, the Sofer accidentally posuls (invalidates) the mezuzah or tefillin. The question then arises: is he obligated to pay for the damage caused — for example, if he invalidated a mezuzah, must he return to the owner the value of such a mezuzah as he received? Or, on the other hand, perhaps one might say that since the Sofer is an expert in the matter and would ordinarily never cause damage in the course of his work, what happened here was merely the “bad mazel” of the mezuzah’s owner, and therefore the Sofer should be exempt from payment. What is the halachah in practice?
A: Before we rule on this matter, we must first distinguish whether he worked for free or for pay in repairing the mezuzah.
The Mishnah in Bava Kama (98b) states that if one gives an item to a craftsman for repair and he damages it, he is obligated to pay. The Gemara there (99b) says: one who gives an animal to a shochet and he made it a neveilah — if the butcher is a professional (uman), he is exempt; if he is an amateur (hedyot), he is liable. But if he is paid — whether he is an amateur or professional — he is liable.
This is codified in Shulchan Aruch, (Choshen Mishpat 306:4). The Sma there explains that regarding a professional, since he is an expert and not normally prone to error, we say that the mishap occurred due to the “mazel” of the owner, and thus the craftsman is exempt. However, if he worked for pay, he is liable, because he ought to have been more careful.
Accordingly, it would seem the same applies in our case: if he is an expert and worked without payment, he is not obligated to pay. If, however, he was paid for his services, then he would be liable to pay for the damage. Furthermore, the Shulchan Aruch there (7) says that one must bring proof that the artisan is an expert; if he does not bring proof, he must pay. Thus, the practical ruling is that if the Sofer is an expert and worked for free, he is not obligated to pay. This is also the conclusion in Mishnas HaSofer (pg. 1).
Regarding a Sofer who sought to repair a mezuzah and ended up damaging it, and changed it from a mehudar mezuzah to one that is only kosher b’dieved — is he obligated to pay? The Teshuvos Maharam Mintz (§113) holds that if one damaged his friend’s mehudar esrog, he is only obligated to compensate him for the value of a kosher but non-mehudar esrog. Accordingly, the Sofer would not be obligated to pay at all, since he only downgraded the tefillin from mehudar to kosher. In this case, even if the Sofer was paid for his services, he would be exempt from payment.
However, the Chacham Tzvi (§120) disagrees and holds that he must pay according to the value of the mehudar esrog. The Pri Megadim (Hilchos Daled Minim, 656, Mishbetzos Zahav §1) cites this argument and notes that most later Poskim rule like the Chacham Tzvi, obligating payment for the mehudar value.
Nevertheless, the Pri Megadim distinguishes between when the damage was done deliberately, where he must pay its value, to when it was done accidentally, where he can exempt himself by giving a kosher esrog, even if it is not mehudar. Although this itself is subject to dispute, nevertheless, since the Pri Megadim holds that even the Chacham Tzvi would agree that one is exempt if the hidur was ruined by accident, the Sofer can claim “kim li” — I am certain that the halachah follows the opinion of the Pri Megadim, an authoritative Posek, and be exempt from payment.
In conclusion: If the Sofer, while checking Sta”m (Sifrei Torah, Tefillin, and Mezuzos) that were mehudar, accidentally caused damage that left it only kosher b’dieved, he is exempt from payment. Similarly, if he was a professional and was working for free, he would be exempt from payment even if he invalidated the mezuzah entirely.
Is It Permissible to Lie to a Poor Person in Order to Get Him to Accept Tzedakah?
Q: I have been asked whether it is permissible “leshanos” — to alter the truth for the sake of the mitzvah of tzedakah. For example, if a poor person refuses to accept tzedakah — whether because he is embarrassed, or feels he is not in need, or thinks he does not deserve it — and the giver wishes to invent some story about where the money came from so that the poor person will agree to accept it, is such a lie permitted for the sake of fulfilling the mitzvah of tzedakah?
A: In my opinion, it is permitted. We find (Bava Metzia 23b) that there are three areas in which it is permitted for Talmidei Chachamim to “alter their words” (i.e., not speak the strict truth): regarding a Masechta, a bed, and about hospitality. Rashi explains regarding a Masechta: if someone asks, “Are you knowledgeable about such-and-such Masechta?” — even if he does, he may answer “No,” out of humility. Thus, for the sake of humility, it is permitted to deviate from the truth.
The Rif (13a) cites the Gemara in Yevamos (65b), that it is permitted to alter the truth for the sake of peace, and comments: it seems to us that the reason this was not taught together with those other three cases is that this one is a mitzvah (to promote and ensure peace), and therefore did not need to be listed; those three were optional. This implies that where a mitzvah is involved, it is certainly permitted to alter one’s words, and the chiddush of the Gemara in Bava Metzia is that even in optional matters, it is allowed in those three cases mentioned.
Now, if one will ask: How is it permitted to lie — especially in optional matters — if the Torah says, “Distance yourself from falsehood” (Shemos 23:7)? The answer is that the Torah prohibition of lying applies only when the falsehood causes loss or prevents gain to another person, or causes him to be disgraced (see Chofetz Chaim, Klal 1, se’if 1). But when one alters his words merely by telling a story without causing any harm to another, that is not the type of falsehood the Torah forbids. Therefore, Chazal sometimes permitted it, as explained above; see also Magen Avraham (Orach Chaim 156).
Another proof to our question can be brought from the Shulchan Aruch discussing the laws of tzedakah (Yoreh Deah 253:9): “A poor person who does not wish to take charity — it is permitted to deceive him and give it to him as a gift or as a loan.” The source is Kesubos 67b. The Tur writes: “One who needs to receive from charity but refuses to take — we find ways to give it to him as a gift, in a respectful manner, as if it is not from charity.” It seems clear that when one gives it to him as if it were a gift and not tzedakah, this will inevitably involve altering one’s words — telling him that the money is not charity funds but ordinary funds being given as a gift. This is certainly not true, yet it is permitted since it is for the sake of fulfilling the mitzvah of tzedakah.
I have also heard from Mori V’Rabi Rav Avigdor Nebenzahl shlita, who agreed with me that it is permitted to tell such a story so that the recipient will accept the money as tzedakah.
The Halachos of Wine When There Is a Non-Jewish Worker in the Home – Part 1
(Relevant to this week’s Daf Yomi Masechta Avodah Zarah)
Q: Many elderly people have a foreign worker in their home, and there are also families who have a non-Jewish housekeeper. It is therefore necessary to clarify how to conduct oneself with wine or grape juice that is kept in places that are not locked, such as cabinets or refrigerators to which the non-Jew has access, or when the homeowner does not return to the house frequently enough to cause the non-Jewish helper to be in a state of fear (mirtas).
The Shulchan Aruch (Yoreh Deah 123:1) writes that stam yeinam (ordinary wine) of non-Jews is forbidden in benefit. The same applies to the wine that they touch. The Rema explains that this is based on the decree against wine that may have been poured for idolatry.
However, the Rema adds that in our times, when it is uncommon for non-Jews to pour wine for idolatry, some say that the touch of a non-Jew to our wine is forbidden only for drinking, not for benefit.
Touching the Wine Bottle
Strictly speaking, only direct contact of the non-Jew with the wine itself — by hand or mouth — renders it forbidden. If he touches the outside of the bottle, it does not prohibit the wine, even if the bottle was open (Rema, Yoreh Deah 124:18). The Shach (43), quoting the Darkei Moshe, adds: “Therefore, I am astonished at those who are stringent and cause Jews financial loss by forbidding wine simply because a non-Jew touched the vessel without any shaking. It seems there is no concern at all.”
The Shach concludes that all the more according to us, it is permitted. This is very relevant in places such as Simcha Halls, where there are waiters who do not keep Shabbos.
Shaking or Lifting
If the non-Jew only lifted the bottle (a common scenario with housekeepers who clean refrigerators containing wine) or only shook it, one must distinguish between whether the bottle was open or closed. If it was closed, then one may certainly be lenient (Shulchan Aruch ibid.). If it was open and shaken — according to the Shulchan Aruch it is forbidden, but according to the Rema it is permitted in cases of loss. If it was only lifted without shaking — even the Shulchan Aruch (ibid. 18) would agree that it is permitted.
The Chazon Ish (Yoreh Deah 49:2) rules that if we do not know for certain that the non-Jew shook it, we do not suspect that this took place.
Wine That Was Poured by a Non-Jew
If a non-Jew pours wine from the bottle into a cup (e.g., for an elderly person who cannot pour himself), since the wine in the cup came by the non-Jew’s force, the contents of the cup are forbidden (Shulchan Aruch 124:18).
Similarly, whatever remains in the bottle is also forbidden due to nitzok (a connected stream) from his force (Shulchan Aruch §125:1). However, the Rema rules that in cases of great loss, the wine in the bottle is permitted. The Shach (1) is lenient in our times even for drinking in cases of loss — even if it is not a great loss, since today’s non-Jews are not idol worshippers and their touching is unintentional; the Rema’s ruling is only m’ikar hadin.
A Non-Jew Left Alone at Home with Wine
The Shulchan Aruch (§128:1) writes: if a non-Jew is left alone with wine, even in our domain, even for a short time, it is forbidden in benefit. However, if we know the non-Jew is not an idol worshipper, one may leave wine with him for a short time, approximately the time to walk a mil. However, the Rema rules that non-Jews in chutz la’aretz, although they are not idol worshippers, one still may not leave wine with them.
The Shulchan Aruch (118:1) rules that if the wine is sealed with two seals, there is no concern at all. According to some opinions, for non-Jews of nowadays, one seal is enough (Taz s.k. 4; Aruch HaShulchan §13). But if the bottle is unsealed (already opened), then:
• If the non-Jew is an idol worshipper — wine is forbidden even if left for a short time.
• If the non-Jew is not an idol worshipper (e.g., Muslim) — wine is permitted if left up to a mil (18 minutes).
The Shach (4) adds that if the non-Jew is an idol worshipper who does not usually pour wine for idolatry (such as a Christian) — according to the Rema, the wine is permitted b’dieved if left alone for a short time.
In all cases, if the Jew comes in and out, there is no concern that he opened the bottle (Shulchan Aruch 129:1).
If a non-Jewish helper was alone in the house and there was an already-open bottle, if there is concern, she drank from it for her own enjoyment, the wine is forbidden (Rema 128:4). However, Shu”t Sheilas Shaul writes that even if there is concern, she drank, we assume that she drank in the normal manner nowadays; that is, she poured into a cup rather than drinking directly from the bottle — and thus the wine in the bottle is only connected via nitzok and is not forbidden, even without significant loss, as we saw from the Shach (125:2).
Shaking and Lifting
If a non-Jew lifted and shook the bottle, but it was sealed with a cap or cork, the Shulchan Aruch (125:9; Shach 17) rules that the wine is permitted, since wine is not normally shaken in a closed vessel. However, if the bottle was open and the non-Jew lifted and shook it, the wine becomes forbidden (Shulchan Aruch 124:17). However, Rav Akiva Eiger and Pischei Teshuvah write that according to the Rema one may be lenient in cases of loss, since most non-Jews today do not pour wine for idolatry.
See next week’s edition where Bs”d I will explain at length why all of the above applies to uncooked wine, and define what is considered Yayin Mevushal, and a few other selected halachos pertaining to Yayin Nesech.