Finishing Yoreh De’ah 119

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by R. Gidon Rothstein

Starting Positive, Then Back to Lack of Trust

Paragraph 43 of our long siman (and remember, Shulchan Aruch itself only had five paragraphs, suggesting this grew in significance in the interim)discusses those who sin out of fear. A convert who returned to his/her old religion due to governmental scrutiny or pressure (later in the paragraph, he gives the example of a converso who remained in Spain after it was possible to leave, but still observed Judaism in private. He adds all this was in the old days, a reminder he himself lived with some fear, had to be sure he did not sound like he supported or praised conversion), or a Jew who sinned to avoid being killed can still validly slaughter animals, and touch wine without affecting its permissibility.

If either the convert who backslid or the coerced Jew becomes rooted in the new religion, then we must treat him/her like a non-Jew. A Jew who informs on other Jews, to coercive non-Jews, has an unclear status, as he said back in siman 2 and repeats here (I note it because when he chooses to repeat himself, knowing he is repeating himself, he draws our attention to a live concern, one he did not want to leave unaddressed at any point it was relevant).

The Limits on How People Will Lie

To believe a Jew who has forfeited our trust about his/her claim to have bought something from a kosher supplier (like cheese), s/he must name the seller. Without a name, the lie is easy and impenetrable, where with one, we could easily check on him/her, so the Jew will not lie. Where the Jew brings a gift we worry s/he partakes of without its being permissible, but in this case says s/he bought if from a kosher-keeping person, we believe him/her even without a name, because people don’t lie to ease their gifts’ reception.

Rema thought these leniencies based on our perspective of when a Jew will or will not lie do not allow us to ignore issues of Torah law. Taz and Pri Chadash disagreed, and pointed to siman 2, which allowed us to accept the certification that certain meat had been killed by a reputable shochet, from someone who eats nonkosher le-te’avon, out of convenience rather than religious rebellion.

Shach suggested the example might be an exception, because the Gemara asserts a probability, most people who kill animals for food are trained. Once this Jew says s/he did not kill the animal himself, we can accept the next part, he went to a qualified slaughterer. AH leaves the question open.

Egregious Misleading

Se’if 48 of our siman describes a situation we would hope would never occur, except it famously did, in 2006, in Monsey. AH says someone who sold nonkosher food as if it were kosher, on purpose, even once, loses all credibility about anything having to do with permissible and not in halachah. (A Monsey butcher, whose name I leave out because why spread it more, knowingly sold nonkosher chicken and meat for an indeterminate period, at least months).

Nor can this Jew stay in his/her position (the Monsey butcher was kicked out of town; my Google search did not discover what happened to him, although he seems to have started on the path to repentance soon after, sending letters to neighbors asking their forgiveness), until s/he undergoes complete repentance, to be defined in a moment.

AH first cites Mahari Weil, Responsum 97, with a line that bedevils these situations today. Mahari Weil allows us to believe a well-known yerei Elokim, God fearing Jew, to say it must have been unwitting. Unfortunately, this leads to situations where a person’s supporters insist s/he only tripped up by accident, will call for a slap on the wrist, where others will see it otherwise. The groundwork for strife and dispute, because life is complicated.

AH points out that extracting money for the damage caused might be legally harder than removing him from the position, since taking money requires proof s/he knew what was going on and deliberately defrauded people. He thinks the community should nonetheless fine the person somewhat, to be sure this not become common or easy.

The Needed Repentance

The next paragraph we’ll discuss, forty-nine, reminds us of a point I think we often forget— we believe in teshuvah, the possibility of rehabilitation, as long as the steps taken really demonstrate a change in the person [hard both ways, because some will say the sinner has repented with minor steps, others will reject even an onerous and hard-fought teshuvah].

AH says the butcher must move to where no one knows him, wear black, and live there until he returns an expensive lost item, or admits he messed up the shechitah of one of his own animals, demonstrating he has come to value halachic truth more than money. [Clearly, we mean the person does it sincerely rather than performatively, does this because he has become a different person, not as a way to get back into society’s good graces.]

Taz in the name of Yam Shel Shelomo offers other options, because he thinks we cannot always be as strict as the standard set in Sanhedrin 25a. A sinner with dependent children cannot move [our desire to help innocent children often pushes for lenient treatment of a wayward parent] should be assigned a teshuvah regimen of a level with the Gemara’s, in his current locale.

A one-time misdeed leaves room for an easier standard of repentance. Along these lines, Rema in se’if eighteen thought the need to move was only for a pattern of behavior. Barring that, it could be enough for him/her to declare in front of three Torah scholars that s/he will follow divrei chaverut, the highest standards of halachah, and convince us with his/her repentance.

In Choshen Mishpat 34;22, where the topic was returning ill-gotten gains, SA accepted the local court’s view of the sinner; if they were sure s/he had repented, SA thought that was good enough. [Again, opening room for some to think the court was too lenient or stringent, more fodder for Shabbat table arguments. A problem I have no idea of how to address, other than perhaps encouraging people to have fewer opinions where they don’t know the facts.]

The Money

The rest of the siman considers what refunds the seller would need to provide. Rambam in Ma’achalot Assurot 16;14 gives the general principle, s/he must return all money received for Torah-prohibited food, including what the buyer already ate. The reason takes us to an example of metaphysics in ordinary halachah (a topic I personally find fascinating).

A buyer who has already eaten Rabbinically prohibited food has already received the physical benefit of eating, so the seller will not need to refund that money. With Torah prohibitions, we hold the buyer did not benefit, because the food is so inimical to a Jew’s biology. Since food isn’t about only the physical, and this was food the Torah said was not good for Jews, the buyer can demand a refund for that food as well.

The seller will also need to refund any Rabbinic issurei hana’ah, items Chazal banned for all benefit. Where Chazal disallowed all benefit, there never was a sale, so the food being around or not has no impact, since the seller was never going to be able to extract value from them anyway.

The Obligation to Check

I’m skipping some further examples of who must refund what—an employer who promised meals to employees and fed them nonkosher, for example—to come to one last issue, a butcher who did not check meat properly, again putting us in mind of the distinction between Torah and Rabbinic law. For ordinary cases where a butcher neglected to check—AH thinks SA means he has a pattern of not checking—we treat it as if he sold Rabbinically prohibited food (since Chazal required checking), and will have to refund the money for any uneaten meat.

Where there was a re’uta, specific reason to doubt the food’s kashrut, AH thought the need to check becomes a matter of Torah law (in contrast to Shach, who still thought it Rabbinic), so the butcher will have to refund all the money, as we saw before.

Here endeth our extended discussion of our interactions with Jews of lesser observance, either suspected or proven, one-time events or a pattern. I hope you have found it productive; to me, it seems to send messages about our interactions with fellow Jews today, the importance of balancing our two values, fidelity to halachah, including ensuring our own observance, along with our desire to maintain connection to Jews who have fallen by the wayside for one reason or other.

Next time, we’ll look at some of the rules around early stages of marriage, when a father’s promised gifts to a daughter take effect, how long betrothal might extend, and more.

About Gidon Rothstein

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