Chullin 138-Bechorot 3: Partnering with Non-Jews

by R. Gidon Rothstein

There are certainly sugyot at the end of Chullin we could have studied, but I was ready for a change, and the beginning of Bechorot has a topic with ramifications for living/existing in a world populated with people other than Jews. It starts with a rule about first-born calves, kids, or lambs, normally to be given to a kohen, to be offered as a sacrifice. But only a Jew’s first-born such animal.

Partnerships Lead to Swearing in the name of gods

If a non-Jew owned a pregnant animal, the Jew sold it to the non-Jew, or—our topic—was a partner in its ownership (Rashi says of either the animal itself or its mother), the rule doesn’t apply, because Bamidbar 3;13 says Hashem had these rules cover any first born in Israel, meaning wholly owned by Jews.

I skipped what piques the Gemara’s interest. When listing ways the animal would not be a bechor with an obligation to be offered, the Mishnah paused to note it was impermissible to sell the animal to a non-Jew (for reasons I will have to leave for another time), but makes no such note regarding partnerships, the silence implying they are allowed. Problem is, Bechorot 2b reminds us, Avuha de-Shemuel, Shemuel’s father, prohibited such partnerships, because it can easily lead to the non-Jew swearing in the name of his/her god, if the partners end up disupting some aspect of their joint venture. Shemot 23;13, Avuha de-Shemu’el pointed out, disallows Jews’ being the cause of others invoking those gods’ names, not only proscribes Jews from using them.

The Gemara answers technically, the clause in the Mishnah includes this case, too, indeed, the person is not allowed to make such a partnership, but if s/he did, it works to forestall first-born status. Except Tosafot there point to other passages where the Gemara assumes Jews have partnerships with non-Jews.

No Partnerships? No Oaths?

Tosafot says all those other passages disagree with Avuha de-Shemuel. If so, theoretically, we could decide to rule the other way, to allow partnering with non-Jews despite the worry about oaths. Except Rambam, Laws of Messengers and Patrnerships 5;10, accepts Avuha de-Shemuel’s prohibition of such partnerships, lest the other be required to take an oath, and do so by the god in whom he believes.

Hagahot Maimoniyot starts chipping away. He quotes the Yere’im, this is only where the two buy property or merchandise, but a Jew may do business, buy and sell from them, as is clear from the Gemara’s prohibiting such activity only on their holidays. [He does not explain the difference; I suspect it is because oaths are more frequent between partners, when deals go bad, than in ordinary business dealings.]

Jews Did It Often

Moving to the practical, Hagahot Maimoniyot (by R. Meir Ha-Kohen) points out that Avuha bar Ihi (or Minyamin bar Ihi), Megillah 28b, pats himself on the back for having followed Avuha de-Shemu’el’s rule, meaning everyone else he knew did not. Perishah (a commentary on Tur) Choshen Mishpat 182 took Ramban’s view, this “prohibition” is a middat chasidut, an especially pious way of acting, because the verse cited actually addresses Jews, warns Jews not to let their own mouths say the names of these gods.

Says Perishah, we don’t generally inconvenience ourselves to avoid a non-Jew acting in (prohibited) ways s/he could easily do anyways. Especially if the non-Jew does it voluntarily and willingly, takes for granted it is a responsibility of being in the partnership. Everyone other than Avuha bar Ihi, in Megillah, entered these partnerships because it was mostly allowed, he adopted the higher standard of Avuha de-Shemu’el.

Oaths Have Changed

Adds Hagahot Maimoniyot, non-Jews no longer swear by their gods, they link God to other things (he means the Trinity, the piece of Catholicism—the Christianity of his time– that most clearly verges on idolatry), and Jews have no obligation to avoid non-Jews committing shittuf, where they think of God as partnering with other beings. He could have learned the idea from Shu”t Maharam mi-Rothenburg 97 (his teacher), who argued that unless the name used in the oath sounds like the name of a god, it’s not as much of an issue. The non-Jews Hagahot Maimoniyot knew swore with names that sound like human ones (I think he means the man they decided was a son of God).

[I’m leaving out the lively discussion we could have had about what halachah thinks non-Jews are or are not allowed to do and believe, in terms of a Trinity. Not our topic. I cannot resist noting that I was present when Professor David Berger gave a paper at a conference on the idea that Jews of Hagahot Maimoniyot’s time came to think of Christianity as non-pagan avodah zarah in a monotheistic mode, later published in Formulating Responses in an Egalitarian Age, and mori ve-rabi R. Lichtenstein, zt”l, called it stunning.]

In the 1800s, Shu”t R. Azriel Hildesheimer 1 Yoreh De’ah 174, cited his teacher, R. Yaakov Ettlinger, who came up with a workaround, an agreement ahead of time to adjudicate disputes in a court where oaths do not invoke the name of any god, pre-empting the problem.
What’s Done Is Done

If a Jew already partnered with the non-Jew, Rashbam allowed accepting the oath, because (assuming the Jew is in the right) s/he is salvaging Jewish money from non-Jews, a value we see elsewhere in the Gemara. (He does not explain why this isn’t a violation of lo yishama al picha, the verse Avuha de-Shemu’el invoked; it seems he takes the view it is not a full prohibition, but we will have to see).

A side point of the kind I find interesting: Hagahot Maimoniyot cites Rashbam. Beit Yosef, three centuries later, attributes the idea to accept the oath to Rabbenu Tam, quoted in Tosafot, Rosh, and Ran, despite Rashbam opposing it. I’m pretty sure Beit Yosef has the names right, so it’s interesting to see Hagahot Maimoniyot with a faulty citation tradition.

In Beit Yosef, Bedek Ha-Bayit (Rema’s short glosses to Beit Yosef, the first time he was writing a work only to find R. Yosef Karo beat him to it, and instead glossed the work; he’d be scooped again when it came time for Shulchan Aruch, writing much of his own work only to realize he had been beaten to the punch, and again turned to glosses) notes Rosh’s recommendation, Responsa 18;11, to concede the case if it becomes clear the non-Jew is going to swear, avoiding the non-Jew in fact making the oath.

The Halachah, Codified

With all we’ve said, Yoreh De’ah 147;3 prohibits, simply and unequivocally, causing an idolater to take a vow or oath in the name of an idolatry. [This is one of those examples where aku”m must mean idolater; a regular non-Jew wouldn’t bother to swear in the name of some god, so it wouldn’t be a worry for us.] Pitchei Teshuvah echoes the view we saw allowing accepting the oath if the partnership has already happened. He quotes Shu”t Radbaz, the Jew cannot be the one to demand the mention of the god’s name in the oath, can only demand an oath.

Shulchan Aruch repeats the idea in Choshen Mishpat 176;51, and again in Orach Chayim 156;1. Sema to Choshen Mishpat adopts the view of Ramban, we consider this a middat chasidut, an especially pious form of behavior rather than a strict law, which perhaps explains Shulchan Aruch’s decision to record it three times.

There are byways we could walk down—Ruach Avot, R. Chaim Volozhin’s commentary on Avot thought he had to explain why a Jew could not have non-Jewish clergy function on his/her behalf to recover funds taken improperly by one of the clergyman’s congregants, Tzitz Eliezer wondered whether we may use the non-Jewish date, and whether we were allowed to make any kind of pact with non-Jews—but I will stop here, with what ends up looking like a middat chasidut, an extra level of religious devotion, one that garnered a great deal of halachic attention, including three mentions in Shulchan Aruch.