Halachic Gray Areas

Bava Metzia Daf 96

Our Gemara on Amud Aleph discusses a situation where an object or animal is borrowed for an unconventional purpose that does not provide a tangible financial benefit. The question being, if there is no real monetary value received perhaps it is insufficient to incur the financial liabilities that are normally part of the borrower’s contract.

A similar question: If one borrowed an item, not to use it but to be seen with it, so that people will assume that he is wealthy, what is the halacha? In order for him to be liable, do we require that he borrow an item of monetary worth, and that exists in this case? Or, perhaps we require that he borrow an item of monetary worth from which he also derives tangible benefit, and that does not exist in this case.

It is interesting that the Gemara does not seem to have an issue with the borrower’s somewhat deceitful motives. This would seem to be a violation of geneivas da’as, misleading a person in order to achieve an inappropriate gain\. Shulchan Aruch (CM 228:6) states:

“One is prohibited from defrauding another in commerce or misleading them. For example, if the item has a defect, he must inform the buyer. Even if the buyer is a gentile, he cannot sell non-kosher meat with the presumption that it is kosher. One cannot mislead others with words by showing that he is doing some for him when he is not. How so? A person should not invite someone to eat with him where he knows he won’t come. He should not send a lot of gifts where he knows he will not accept. He should not open barrels that he is opening for a storekeeper and the other will assume he opened them for him. Rather, he must inform the other that he did not open for him. If it is something that the other should have realized was not being done for him, and he mislead himself by assuming it was done for his honor, such as where he meets someone on the street and assumes he came specifically to greet him, he would not have to inform the other.”

In our case too, the person wants to appear wealthy so that lenders will extend him credit. But indeed, he is not wealthy, and lenders might feel duped to know that his Bentley and Butler were just borrowed for the day that he filed his loan application. However, we must say that this mild deception is not forbidden because the issue is not whether he is wealthy or not. The issue is, does he have the ability and full intention to pay back the loan.

We find an analogous situation in a teshuva of Rav Moshe Feinstein (YD II:61) regarding someone who became prematurely gray and wanted to dye his hair so he could still be competitive as an employee and avoid age discrimination. (We won’t discuss the issue regarding men dyeing hair in terms of li tilbash, although Rav Moshe speaks of that as well.) Rav Moshe permits it so long as the person is sure that he is able to work just as well as someone who would appear the age he is portraying. Not everybody agrees with this ruling. For example, Rav Yaakov Yechiel Weinberg (Seridei Eish II:41) rules that this would be an unfair deception. However, he cleverly advises that he should simply disclose his age. The idea being, once the person knows his true age, they will draw their own conclusions about his vigor and reliability.

Rav Moshe must have held that it does not matter that he is fooling him regarding his apparent age because that is non-material, so long as he knows that he is able to do the job that he is bidding for. It would seem that our Gemara is a proof to Rav Moshe’s position.

The Psychology of the Oral Torah

Bava Metzia Daf 98

Our Gemara on this daf discusses a fundamental dispute regarding the oath required of the watchman. In the verses which we soon shall see, a watchman is Biblically mandated to swear and affirm his claim of not having neglected his duties. This is known as the Watchman’s Oath. Another Biblically mandated oath that is derived from these verses is the Oath of Partial Admission, which is triggered when a defendant partially admits that true, he owes something, such a lesser amount than the plaintiff claims, but agrees that he owes an amount.

The verses that these laws are derived from are ambiguous and challenging exegetically, but I believe hint at deeper truths of the Torah. Let’s take a closer look at the syntax, structure and meaning of the verses from Shemos (22:6-14):

When any party gives money or goods to another for safekeeping, and they are stolen from that other party’s house: if caught, the thief shall pay double;

If the thief is not caught, the owner of the house shall depose before G-d (the Court of Law) and deny laying hands on the other’s property.

In all charges of transgression pertaining to an ox, a donkey, a sheep, a garment, or any other loss, whereof one party alleges, “But, this is my claim” – the case of both parties shall come before G-d: the one whom G-d declares guilty shall pay double to the other.

The ambiguous statement, “But, this is my claim” (“kiy hu zeh“) conveys a degree of adjustment in the argument. As if to say, “I do not agree with your claim exactly, but here is what it is.” This is why the rabbis derived the Oath of Partial Admission from this phrase, as it sounds like the defendant is responding to, and partially agreeing with, the plaintiff. Since these same verses also are the derivation for the Watchman’s Oath, there is one opinion that the watchman only makes an oath when he partially admits. However, the other opinion holds that every watchman makes an oath, and we have what is called eiruv parshiyos, a mixture of two sections of the Torah. That is, the same verses have double meaning and overlap, teaching different laws; both the Watchman’s Oath and the Oath of Partial Admission, in distinct legal zones.

From a textual perspective, this is an exegetical nightmare, with these interpretations feeling forced beyond a reasonable context. It is hard enough to interpret the words, “but this is my claim” to mean an Oath of Partial Admission. It is even harder to insert two separate laws within the same verses. However, as I shall soon demonstrate, the understanding of these derashos speak of a fundamental idea regarding Torah.

To begin with, it is important to shed our cultural biases and anachronistic projections regarding literature and literacy in the time of the Gemara. In the modern era, especially post the invention of the printing press, our relationship with the written word is profoundly different than the ancients.

Walter Ong, a linguistic and anthropological scholar who studied the differences between cultures that use writing versus cultures that use stories and oral histories as their primary form of storing knowledge. Even when a culture has writing, it can have what’s known as an Oral Residue culture, meaning that writing is still not primary in the mental process. For example, you might remember seeing in a museum stone tablets with Greek inscriptions. Did you notice that it is, Scriptio Continua (Latin for “continuous script”), a style of writing without spaces or other marks between the words or sentences? Keep in mind, Greek is a language with sophisticated grammar that has many more tenses to convey mood and object of expression than in English. Were they so foolish as not to understand the utility and value of putting in spaces and punctuation? Obviously not. But their relationship with the written word was very different from ours. Writing was not used as a perfect data storage device, but rather as prompts for ideas that remain oral.

Understanding this allows one to better appreciate the function of what we call the Oral Torah versus the written Torah, (which does have spaces between words unlike Greek, but doesn’t have punctuation, similar to Greek.) The stories and or legal prescriptions in the text are meant as indices and are incomplete accounts.

Another fundamental idea to consider is how the Torah and Moshe’s prophecy was able to transmit the eternal will of G-d in a particular temporal frame. Imagine trying to dip your hands into a running stream; you gather vital parts of a continuous flow, but never its totality. Ralbag (Shemos 4:10) cleverly explains Moshe’s speech impediment as a by-product of his deep attachment to the ethereal. Moshe’s unique ability to tap into and be a direct agent of G-d’s will, necessitated a certain disassociation and disconnection with the physical time-bound world. Moshe’s thoughts may have been in simultaneous dimensions, as G-d’s will is vast, but then he struggled to organize them back into physical terms. For example, we have a tradition that the discrepancy between the words “Zachor and Shamor, Guard and Remember the Shabbos” used in the two versions of the Ten Commandments were stated by G-d simultaneously (Shavuos 20b). What does that really mean, and how did Moshe hear it? Moshe’s depth of connection to G-d’s will allowed him to experience all aspects of the Torah simultaneously, which has been given over to us in the form of the written and oral Torah. Due to Moshe literally having his head in the clouds, he could not casually communicate without either Aaron serving as his spokesperson, or G-d miraculously speaking through him.

This helps us understand exegetical ideas such as the Torah does not follow chronological order (Pesachim 6b), and our Gemara’s assertion that there is eiruv parshiyos, a mixture of two sections of the Torah by the Watchman’s Oath and the Oath of Partial admission.

If we take that approach, the words of the verses may at times be specific, but also at times impressionistic, conveying a number of ideas blended together. As another example, the famously perplexing stress in the written Torah on harsh punishments such as an eye for an eye, stated literally, while the Oral Law says precisely the opposite (Bava Kamma 83b), and only payment can be extracted. It’s not just a word trick and rabbinic legal wizardry. Rather somehow the mood of the verses are indeed conveying a strict and cruel legal punishment, with the oral law merciful and tempered. We can understand this from the fact that the verse explicitly states “Forty lashes, no more” (Devarim 25:3), but the oral tradition is specifically no more than 39 lashes (Makkos 22a). The Torah seems to be conveying a broader idea, that practical law must always be more compassionate and override the technical letter of the law.

Returning back to the verse about the watchmen, when you think about it, every time a watchman makes a claim that he was not negligent he is also making a partial admission. Essentially, he is saying, “True I took responsibility to watch your object, and true I can no longer return it to you. But, it’s not my fault! I was not negligent.” Now we can see that conceptually, the Watchman’s Oath and the Oath of Admission are one in the same, in terms of basic legal principles, even though they might have technical legal differences. This is how a collection of verses can legitimately be discussing and informing us about multiple legal matters. G-d’s will, the ultimate morality, is too big to be written down in specific rules alone. Think of a couple that has an inside joke, perhaps a catchphrase that hints at a key piece of family history and lore. The Torah is this, times 10,000. The Torah is G-d’s way of stopping in time to give us humans the best comprehension of His will. Yet, it still must hint and imply much more, not because it is deliberately mysterious but rather because it must be essentially mysterious.