Parashas Aharei Mos: The Luck of the Draw

My weekly halachah column:

In parashas Acharei Mos (16:8-10), the Torah mandates the casting of lots to determine which of the pair of selected goats shall be “for Hashem” – i.e., offered as a normal sacrifice, and which “to Azazel” in the wilderness. This is one of two Biblical commandments to cast lots, the other being to apportion the Land of Israel among the Jewish people via lottery (Bamidbar 26:55-56). Although the Temple service has not been practiced for millennia, the latter principle that jointly owned property is to be apportioned among its various owners by means of a lottery is codified as normative halachah (Shulchan Aruch Choshen Mishpat siman 174).

Similarly, there was a venerable tradition to assign various synagogue privileges, such as the right to say kaddish, via lottery. R. Shlomo Kluger explains that this type of procedure does not violate the Torah’s stricture against all sorts of divination, in which various halachic authorities explicitly include the casting of lots, as the prohibition is of attempts at prognostication, while our procedures are merely intended to resolve the impasse of mutually exclusive claims to some property or privilege (Shut. Ha’Elef Lecha Shlomo Orach Chaim #62).

Various authorities prescribe the casting of lots even where the stakes are higher than mere property or synagogue privileges. The Chasam Sofer rules that when a Jewish community is forced to provide a quota of military draftees, lots should be cast to determine who shall be drafted (Shut. Chasam Sofer 6:29). R. Moshe Feinstein asserts that when a physician is faced with conflicting needs for his services, he should cast lots (where other considerations are not dispositive – Shut. Igros Moshe end of Choshen Mishpat 2:75:2).

My weekly lecture, on the same topic.

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No Jew Can Serve Two Masters

Here’s an essay I recently published (as a contribution to a collection of commentary on the Haggadah by various contributors) on the halachic anti-slavery principle of עבדי הם, ולא עבדים לעבדים:

We were slaves to Pharaoh in Egypt, and Hashem our God took us out of there with a mighty hand and with an outstretched arm. The Torah declares: “For unto Me the children of Israel are servants; they are My servants whom I brought forth out of the land of Egypt: I am Hashem your God.”1 While the context in which this verse appears is that of the eved ivri (Hebrew servant), whom the Torah is admonishing us against treating as an abject slave, the Rabbinic tradition extends the Torah's concern into a general, fundamental anti-slavery principle – Hashem declares that Jews are “'My servants' - and not servants to servants” - with various applications throughout the halachah of employment.

  • The archetypal Talmudic formulation of the principle declares that “an employee may quit in the middle of the day”.2 While the precise scope and details of this right are complex, it is clear that it grants an employee (as opposed to a contract worker) special privileges with regard to reneging on an employment contract.3 This does not apply to an employee who quits due to the opportunity to command a higher price for his labor,4 and there is considerable discussion over whether it applies to one who leaves one employer to take up service with another.5

  • Rabbeinu Tam rules that an insolvent debtor, or a husband unable to maintain his wife, cannot be compelled to accept employment in order to satisfy his obligations.6 One basis for this position is the principle that Jews are not, and cannot be compelled to become, “servants to servants”. Rabbeinu Eliyahu, on the other hand, adduces the husband's commitment in the kesubah ofva'ana eflach va'afarnes” (“and I will serve and support”) as proof that he must work if necessary to support his wife.7

  • The Maharam of Rothenberg and his school maintain that it is prohibited to enter into an employment commitment of too long a term8: some say that the term of employment must be less than three years,9 some allow up to three years but not longer;10 and some require that the term be less than six years.11 This prohibition is limited to an employee who rooms and boards with his employer,12 or one for whom these expenses are paid by his employer and who is required to reside in the vicinity of his employer.13 Others reject this entire restriction, asserting that the prohibition against becoming a “servant to servants” only applies to the voluntary acceptance upon oneself of the status of eved ivri, as he is thus irrevocably bound to service and has no right to renege on the arrangement, but not to an ordinary employee, who may always withdraw from his employment, as above.14

1

Leviticus 25:55.

2

Bava Metzia 10a.

3

Shulchan Aruch Choshen Mishpat 333:3; Pis'chei Teshuvah ibid. s.k. 4.

7

Tosafos ibid., cited by Rema Even Ha'Ezer 70:3 (as “yesh omrim”). Biur Ha'Gra Even Ha'Ezer siman 70 n. 9 asserts that “most authorities” side with Rabbeinu Tam, whereas Pischei Choshen (Hilchos Sechirus) ch. 7 n. 1 s.v. Ve'Ha'Rema opines that “the opinion of the acharonim le'halachah” is like Rabbeinu Eliyahu.

9
10

Taz ibid.; Shach ibid. s.k. 17.

11

See Shut. Chasam Sofer Orach Chaim siman 206 s.v. nohagim, cited in Pis'chei Teshuvah Choshen Mishpat ibid. s.k. 6. Chasam Sofer is discussing rabbinic contracts, and he asserts that while some are written for three year terms and some for five year terms (which he explains based on the various opinions cited in the text), there is always some term specified.

12

Pischei Choshen ibid. 7:1 and n. 3, based on the language of Hagahos Mordechai. Shut. Lechem Rav at the very end of siman 81 also inclines toward this condition, and Chasam Sofer cited in the following note also seems to accept it.

14

See Shach ibid.


[We have previously discussed the views of Rabbeinu Eliyahu and Rabbeinu Tam here, here, here and here.]

And here’s a very brief audio version of the above, which concludes by touching on the theme of this post.

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The Songs of the Prophetesses and Risky Circumcisions

I currently deliver a weekly lecture (usually two versions thereof) on topics related to the coming week’s Torah reading, and write a short weekly column on halachic topics related to the same (the latter is usually a condensed, written version of the former). I intend to begin posting these regularly here.

For פסח, my weekly lecture was titled “The Songs of the Prophetesses”; it is an expanded version of this post.

My weekly column:

In the haftarah of the first day of Passover, we are told that “all the people that were born in the wilderness by the way as they came forth out of Egypt” had not been circumcised (Yehoshua 5:5). The Talmud (Yevamos 72a-b) justifies this apparent dereliction by explaining that due to the particular circumstances of the sojourn in the desert, circumcision would have been dangerous. The Ramban in his commentary to this Talmudic passage takes for granted that the general rule that a father’s failure to circumcise his son disqualifies the father from participating in the Paschal offering (korban Pesach) applied to this situation of the Jews in the wilderness, and he therefore assumes that the derelict fathers of that period did not offer the korban Pesach.

The Avnei Nezer (Yoreh De’ah #323) finds this baffling, since the nonperformance of circumcision due to danger is not generally disqualifying. He resolves this by the proposal that a mere “suspicion” (chashash) of danger is insufficient grounds for neglecting the performance of the commandment of circumcision. After all, circumcision always entails some level of risk, and the Torah nevertheless demands it! He therefore concludes that the Jews in the desert had actually acted improperly by not circumcising their sons, and he notes that we are in fact told that the tribe of Levi did practice circumcision in the desert.

The Beis Yitzhak (Yoreh De’ah 2:90), on the other hand, assumes that the Jews were within their rights to refrain from circumcision due to the danger, but that the members of the tribe of Levi were also within theirs to volunteer to brave the danger and circumcise their children. He infers from this that the mitzvah of circumcision legitimizes the voluntary risking of not only one’s own life, but even that of one’s child (but cf. Avnei Nezer ibid. and #326).

Several years ago, I recorded a lecture on the general topic of the performance of circumcision in dangerous circumstances (previously posted here).

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