Parshas Vaeschanan 5785 – Intriguing Questions & Answers
A Box Was Left in Shul and the Gabbai Threw It Out – Is the Gabbai Chayiv?
Q:
Someone left a box in Shul after making an event there. Inside were many of his personal belongings, including some items of significant value, such as the camera he used to take pictures at the event, along with other important items. He left it there, and over time it ended up in the middle of the Shul’s hallway.
After two weeks, the gabbai noticed this extra box lying in the Shul. Without opening it, he took it outside the Shul, and within a few hours, it was gone.
Two weeks later, the owner of the box came to the gabbai and asked if he had seen the box, since he was sure he left it in the Shul. The gabbai told him yes — but it had already been taken. The question now is: Can the owner of the box hold the gabbai liable to pay for the loss?
A:
In cases where a person loses someone else’s property through negligence (peshiah), the halachah can vary — especially in a Shul or similar place. No general psak should be taken from this case; rather, we will discuss briefly the main points relevant to our question, but for a clear ruling one should always ask a competent Dayan.
The root of the question is: Even though the gabbai was not even a shomer chinam (unpaid guardian) that he should be liable for peshiah, still, one who leaves an item in a public area is considered a mazik (damager) and thus is liable even without a standard peshiah liability (see Nesivos, 301:1). And even if we were to say that in this case, where the item was placed in the Shul without permission, the Chavas Yair (Siman 165; see Pischei Teshuvah Siman 319) writes that in such a case, one must notify and warn the owner multiple times in front of witnesses, and if he didn’t do so, he is liable to pay.
In practice, many Batei Din hold that if there is a clear sign in the Shul stating that any items left behind will be thrown out, this is considered prior warning. In our case, however, there was no such sign, so the question remains whether the gabbai is liable or not.
The Imrei Yaakov (Choshen Mishpat, pg. 237) discusses this at length and brings opinions who hold that one does not need to notify, and therefore, b’dieved, if he did not notify, he cannot be liable to pay — since he can say “kim li—it is clear to me that the halachah follows” the opinion that I am exempt.
See also Pischei Teshuvah (Choshen Mishpat 25, end) quoting the Birkei Yosef, that Dayanim may claim kim li on behalf of a litigant even if he himself does not say it.
In Conclusion:
In our case, the gabbai would be exempt from paying for the box and its contents, even the valuable items. As always, the details of each case must be taken into account.
Leaving a Sheitel Head Intact
Q:
Now that many people throughout Klal Yisrael have learned the sugya in Maseches Avodah Zarah in Daf Yomi, regarding the prohibition of creating a human form and keeping it in one’s home, I was asked about a common practice among women who own a sheitel and place it on an item known as a “sheitel head,” which has the form of a woman’s face. The question is whether, due to it being a full head-form, one must initially damage or disfigure it due to the halachic concerns of keeping such a form, or if there is no concern at all.
A:
In the past, we have already discussed at length the halachic background from the Rishonim and contemporary Poskim regarding keeping dolls for children, where we noted a major dispute on the matter, and presented room for those who are lenient and do not disfigure the “American dolls.”
In our case, the reason to consider whether stringency is necessary at all would depend on the dispute among the Rishonim whether the prohibition of forming a human image applies even to a head without a body, or only to a full human figure including both head and body.
We already mentioned that this is an argument between Tosafos and the Rosh, and the Smag. Many Poskim ruled strictly on this, however, we have also cited that regarding the prohibition of keeping such an image—which is only derabanan—combined with the reasoning of the Chochmas Adam to be lenient nowadays altogether, as well as the view that such forms are considered bizuyim (degraded), and the fact that in many ways this is not considered a real human form, there is room to be lenient according to all opinions. I have also heard this from mori v’rabi, Maran HaGaon Rav Avigdor Nebenzahl shlit”a, that one may be lenient lechatchilah.
In Shu”t Mechzeh Eliyahu, (3:73, Anaf 1:7), Rav Falk ztz”l writes regarding sheitel heads: In my opinion, although there are those who are stringent to break the nose or ear of the form, it is clear to me that there is no need for stringency at all, even though the head is a single unit, and not made of separate parts. The item is made of Styrofoam, has no inherent value, and no one would ever think to bow down to it.
Moreover, it is not something that an individual could make on their own—it is a manufactured product. Furthermore, it is only a head without a body, and according to the Rosh, this does not violate the prohibition of “Lo sa’asun” (You shall not make), and this is how the Shulchan Aruch rules.
In Conclusion:
Although there is a disagreement among the Rishonim whether creating a human head without a body is prohibited, and thus one might raise the question regarding a sheitel head that holds a wig and appears like a human head, nevertheless, there is no concern in this case, and there is no need to disfigure the head even when placing a sheitel on it.
Purchasing Stam Yeinam Merely to Discard It in Order to Receive a Free Airline Ticket
Q:
A question arose regarding a non-Jewish-owned store selling stam yeinam (wine that was handled by non-Jews). The promotion is that anyone who purchases a case of wine receives a free airline ticket to the United States. Is it permissible for a Jew to purchase the wine and then dispose of it (e.g., throw it in the trash, or resell it to non-Jews), since his sole intention is obtaining the airline ticket as a free gift?
A:
There are two potential issues in this case:
First, this may fall under the prohibition of “sechorah b’machalos asuros” (engaging in business with forbidden foods.) However, since stam yeinam is a rabbinic prohibition, and it is established in Yoreh De’ah (end of Siman 117) that commerce is not prohibited with items that are only rabbinically forbidden, stam yeinam would not be subject to this prohibition.
However, the main concern in this case would be in deriving benefit from stam yeinam. In fact, the Rema (Yoreh Deah 123:1) brings differing views regarding whether one may benefit from stam yeinam. In practice, the Shach (1) permits benefiting from stam yeinam in cases of significant financial loss, and this is also cited in the Shaar HaTziyun in Hilchos Pesach (467:57). The Chochmas Adam (Klal 75:14), based on the Rema, also writes that since non-Jews today are not accustomed to using wine for idolatry, although their wine itself remains forbidden due to concerns of intermarriage, it is nevertheless permitted to benefit from it in cases of need.
Therefore, it is permitted to collect stam yeinam as payment for a debt, and if one already purchased it, it is permitted to benefit from it after the fact. However, ideally, it is proper to prohibit doing so, since most Poskim maintain that even today stam yeinam is forbidden even for benefit, and a ba’al nefesh should be stringent.
(As noted in Shvilei Dovid, this this is what we are davening for when we say in our tefillos: “V’ten parnasaseinu b’heter v’lo b’issur—Provide our livelihood through permitted means and not through prohibited ones.”) Chochmas Adam concludes that whenever there is no significant financial loss, one should be stringent and avoid benefiting from it. However, we cannot protest against those who do engage in business with stam yeinam, since there are authorities who permit it even lechatchilah, especially in times of financial hardship.
The Maharam Padua (§76) also rules like this. Although in our case, the person does not profit directly from the wine but rather indirectly (the airline ticket), and there is no actual benefit derived from the wine itself, nonetheless one should be stringent in line with the Rema’s position, lest one come to drink from the wine—which is the core concern behind the prohibition of doing business with forbidden items. The reason wine was treated more strictly than other rabbinically prohibited items is because people have a strong desire for it. (See Darkei Teshuvah 123:8.)
The Maharam Padua also writes: “One should not keep it in barrels to age it, and even storing it in a non-Jew’s home is forbidden. Although we permit benefit from it… one should distance oneself from it as much as possible.”
The Maharam Lublin (Shu”t Siman 50) writes that the consensus of his generation was not to conduct any business with stam yeinam, and earlier authorities such as the Rema also ruled to prohibit initial purchase of stam yeinam, recommending stringency wherever the public can bear it. In that responsum, due to the livelihood of many depending on the wine, he only allowed a leniency through a ha’aramah (e.g., giving money as credit and accepting wine as repayment), but not through direct business even when one’s livelihood depended on it.
Although the Pri Hasadeh permits doing business with stam yeinam and reports that this was the custom in his region, we follow the rulings of the Rema and Shach.
There is also reason to prohibit this act due to “rotzeh b’kiyumo”—that he wishes for the wine’s continued existence. However, the Rema (end of Siman 132) rules that this concern does not apply to stam yeinam. The Levush (7, cited in Daas Torah 133) writes that there was a common practice to do business with stam yeinam, and the Maharam Shik similarly provides justification based on financial loss. Tosafos (Bava Metzia 70b) already writes that in his times, due to high taxes and financial pressures, virtually all financial activity is considered sha’as hadchak, but writes that one who fears Heaven should be stringent when no loss is involved.
Furthermore, this may raise concerns of bal tashchis (wastefulness), since although the wine is prohibited for a Jew to drink, it is still fit for consumption by non-Jews.
In Conclusion:
It would appear that one should not be lenient in this matter, as there are multiple halachic concerns, particularly given that there is no significant financial loss here—as he is not losing anything he already had by not purchasing wine solely to receive a free airline ticket.
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