Chullin 110-116: No Coercion If Its Reward Is Stated
by R. Gidon Rothstein
Jewish tradition differs in many areas from Western culture. One of the most prominent is the issue of communal authority. Where Westerners are sure the government should stay out of our religious lives, halachah generally expected the organized community to step in. Jews who violated the Torah publicly were supposed to be disciplined by the community, and those who failed to observe mitzvot were to be coerced into so doing.
I wish I could picture a community where that is done judiciously and effectively. Until then, a sugya in this upcoming week’s Daf Yomi gives us an interesting exception, a place where we don’t think the community should get involved.
[Note: I am quoting sources that seemed to me to present key issues in the easiest way to share; these are, by far, not all I could have found.]
Honoring Parents
On Chullin 110b, we hear of a man brought before a court for failure to show proper care and respect for his parents. Rami bar Temari (or bar Dekulei) stops the court from disciplining him, says they are not muzharin, warned to enforce, any Biblical obligations where the Torah specified the reward (in this case, long life). Rema codifies this, Shulchan Aruch Yoreh De’ah 240;1.
Figuring out where that applies and what it means is our goal this time.
Let’s start with another example of the idea. Where a parent passed away owing money, heirs are supposed to pay off those debts, using movable property of the estate, but only as an act of honor or respect for the parent; the assets themselves are not encumbered to the debt, only real estate owned at the time of the loan is.
[Another place halachah differs from Western law— in halachah, death immediately and automatically transfers assets to the heirs. Lenders could not collect these assets, because they no longer belong to the deceased.] Because it’s an issue of honoring parents, Tur Choshen Mishpat 107 points out that courts will not force heirs to do this.
Were this all the information we had, we’d likely understand the Gemara to mean that since this person well knows what s/he is foregoing by failing to fulfil the obligation, the court need not (should not? Can not? We’ll have to see) mix in.
Ramban: Cannot or May Not?
In Choshen Mishpat 97;16, Rema cites Ramban to allow forcing a lender to return collateral on a loan, as commanded by the Torah (where the borrower needs it, such as it being his only nightclothes). Although there, too, the Torah declares the reward—Devarim 24;11 says it will be for us a tzedakah before God—Ramban (Responsum 98) claimed that courts are only not required to enforce observance, but may choose to do so. A very significant change!
(Ramban got his idea from a passage in Yerushalmi, where a court forced someone to feed a parent. Ramban suggested courts are always allowed to enforce observance, just not required.)
R. Yehoshu’a Falk Katz (1555-1614), author of Perishah and Derishah on Tur, also has a widely used commentary on Shulchan Aruch Choshen Mishpat, the Sefer Me’irat Einayim, SEMA. There, 107;2, he wonders about this Ramban, especially since Rema cites it only regarding the collateral, not in 107, about paying off the deceased parent’s loans.
He suggested a limitation to Ramban’s view. With collateral, the court doesn’t taking anything from the lender, since the collateral is still the borrower’s, so it is not quite coercion. As opposed to paying off loans.
Yet another factor to consider: what counts as coercion, an idea Tosafot will raise regarding charity, as we will see in a bit.
We Do Coerce For Mitzvot Aseh
R. Eliyahu Mizrachi (1455-1525), author of a well-known supercommentary on Rashi, expands our understanding of the idea. On the first of what many call the Ten Commandments, Rashi quotes aMechiltathat seems to say there is no punishment for failing to fulfill an obligation.
Mizrachi wonders about that, based on two sources. A passage in Menachot 41a had an angel tell Rav Katina that Heaven punishes such failures in times of Divine ire, and our text in Chullin clearly implies that courts punish any mitzvot aseh where the Torah did not state a reward.
Yet a third Gemara, Ketubbot 86a, shows him the way to a solution. There, the Gemara assumed that courts can require a Jew to fulfill an upcoming aseh, obligation. If Sukkot is approaching and a Jew is not building a sukkah, not acquiring a lulav, the courts will force the observance.
For our disrespectful son, Mizrachi thinks the court was punishing him for past disrespect, and Rami bar Temari pointed out we do not do that. He’s not satisfied with that, because it should also be an example of a future obligation (as long as the parents are alive). He floats the idea Rami bar Temari was teaching the court not to force even future observance, because the Torah has the reward. But is uncomfortable, because he is certain that wherever a Jew is in the process of neglecting an obligation, a court would force him/her to keep it.
We have already cut away at the idea of not punishing obligations with reward, thanks to Mizrachi, realized that’s only for past failures. For upcoming obligations, maybe we would.
Tzedakah
Beit Yosef Yoreh De’ah 248 wonders about Ketubbot 49b, where Rava coerces R. Natan bar Ami to give charity. As Tosafot pointed out there, Devarim 15;10 tells us Hashem will bless us in all we do for giving this way. Isn’t that a reward?
Tosafot’s three answers each affect our understanding of our topic. First, perhaps the pressure was solely verbal, where Rami bar Temari was nixing more significant coercion. (With levels even of the physical: Taz, Yoreh De’ah 240;1, knew of Ritzba and Mordechai, who thought only significant physical force led Rami bar Temari to object. The rule might include only higher levels of coercion.
Second, Tosafot suggests, perhaps the members of the community had agreed to give a certain amount every month to communal needs; if that does the trick, it means the non-coercion is only for the basic Biblical mitzvah, but if a community comes to an agreement about how to fulfill it, it can become enforceable.
Finally, charity has two prohibitions attached to it as well, Devarim 15;7, not to harden our hearts or shut our hands to the poor. Courts regularly enforce prohibitions, so that would be the workaround. Beit Yosef notes that Ran accepted this third answer.
Beit Yosef continues the discussion with Ramban to Baba Batra 8b, who thought Rava coerced R. Natan bar Ami because he had not given what was appropriate for him at his economic level. The coercion wasn’t for the mitzvah, it’s for doing one’s correct part in society, and that doesn’t have a specific reward in the Torah. Semag, Semak, and Rambam (Laws of Gifts to the Poor 7;10) all also took for granted the coercion for charity.
When It Affects Others
Aruch HaShulchan Yoreh De’ah 240;6 had another answer. He suggested that where the person’s failure to observe affects him/her alone, the court will not, or need not, force observance, since it affects that person only. Even someone verbally disrespectful to parents doesn’t really damage them.
Where the failure to observe actively hurts someone else, courts have the right to step in and protect the third party. If a parent needs food, the court will force the child to provide it; if people need charity, courts will see to it that those obligated to give are doing so.
We might miss the significance of the change. It makes Aruch HaShulchan limit our Chullin discussion to where the lack of respect didn’t hurt the parent, or deny him/her needed support.
What Community Means
For another mitzvah where this issue comes into play, Netziv, Meshiv Davar 2;56, thought the Torah’s promise to give rain at the right time was the reward for observing shemittah, making the obligation to leave the field in the seventh year one whose reward is by its side.
Rather than add the few other sources I saw, I want to articulate what we are seeing here. Courts, acting for the community, were required to bring Jews to observe mitzvot. To punish past transgressions, and ensure people kept upcoming obligations. The exception was where the Torah laid out the reward, enough incentive, we seem to think, for courts not to mix in.
Except for all the exceptions. Ramban thought courts could always mix in, the only question was where they were obligated to do so. Tosafot thought lower levels of pressure were no problem, communities could coerce their members to uphold specific versions of a mitzvah, and that the existence of a prohibition related to this mitzvah turned it into a coercible one.
Mizrachi added the difference between punishment and ensuring the future, the latter always amenable to court intervention, and Aruch HaShulchan thought hurt to others also sufficient for the court to mix in fully.
Meaning what I again recognize feels very counterintuitive: courts, representatives of the community, were supposed to be sure the community was keeping Hashem’s law, with mitzvot aseh whose reward was clearly stated an instance where that obligation was not the same.
A much more involved community than we are used to expecting.