when man is led to judgment he is asked, "Have you dealt honestly in business?"
SHABBAT 31a
Judaism fails to recognize a dichotomy between criminal law and jurisprudence. All private wrongs are viewed as trespasses against God. Conversion of funds or property belonging to another to one's own use or failure to deliver monies due another person, constitutes not only a wrong against a fellow man but a transgression against God as well. In adjudicating a claim between litigants, the Bet Din acts not simply to determine rightful ownership but to assure fulfillment of a religious obligation. The Gemara, Sanhedrin 6b, citing the verse "And David performed justice and charity unto all his people" (II Samuel 8:16), points out that justice and charity are disparate concepts. King David in his capacity as chief magistrate was certainly expected to dispense justice. But a just decree awarding a plaintiff that which is lawfully his is hardly an act of charity. By the same token, an act of charity is categorized as such precisely because it is not the product of a legal obligation. The Gemara proceeds to explain that a just verdict requiring payment or restitution does simultaneously represent justice for the plaintiff and charity vis-à-vis the defendant: "Justice to the one for having returned his money, and charity to the other for delivering the theft out of his hand." The Bet Din provides a service not only to the litigant who prevails but also performs an act of compassion on behalf of the loser in preserving him from transgression. In the same vein, the Gemara, Sanhedrin 7a, remarks, "Let him whose cloak the Bet Din has taken away sing a song and go on his way."
"Repayment of a creditor is a mizvah," declares the Gemara, Arakhin 22a. If so, queries Rav Kahana, what if the debtor says, "I do not want to perform the mizvah"? Rav Papa responds by pointing out that the Bet Din is empowered to use coercive measures in order to secure compliance with religious obligations. This talmudic exchange presents not only a novel view of the role of the Bet Din but also underscores the nature of financial obligations. The court, in enforcing its decree, is not primarily concerned with enforcing the rights of the creditor but with compelling the debtor to perform his duty. The coercive power of the Bet Din is derived from its duty to command specific performance of religious obligations. Its concern is with the religious and spiritual well-being of the parties which can be assured only if ethical obligations are fulfilled. Of course, the effect is to restore money or property to the party lawfully entitled thereto, but rectification of the financial issue is almost incidental to securing compliance with norms of ethical conduct.
It is, therefore, not at all surprising that in Jewish teaching there is no sharp distinction between law and ethics. In business and commerce a Jew must examine a proposed course of action, not in terms of whether or not it may give rise to litigation, but in terms of its intrinsic ethical propriety. There are numerous situations in which Halakhah rules that a matter is not actionable before human courts but that, nonetheless, an obligation for compensation does exist in the eyes of Heaven. The very concept of a situation in which one is "exempt according to the laws of man but liable according to the laws of Heaven" reflects the acknowledgment that financial matters, no less than ritual observances, are governed by divine law. A pious Jew must be no less scrupulous with regard to the money which he deposits in his pocket than with regard to the food which he places in his mouth.
Copyright
Common law recognizes an author's proprietary interest in his work and protects him against unauthorized publication. Copyright laws in virtually all countries spell out an author's rights subsequent to publication, and indicate when and under what circumstances a published work enters the public domain. Jewish law with regard to an author's proprietary interest in his published or unpublished work is far from unequivocal. A survey of the literature on this topic is presented by Rabbi Samuel Rubenstein in the 5737 issue of Torah she-be-'al Peh. This topic is also the subject of a monograph by Rabbi Nahum Rakover entitled Mekorot le-Ikaron Zekhut ha-Yozrim, published by the Ministry of Justice of the State of Israel (Jerusalem, 5730).
The earliest references to this matter in rabbinic literature focus upon ascription of authorship rather than upon proprietary rights and the concern expressed is for recognition of intellectual prowess rather than protection of pecuniary interests. Thus, Avot 6:6 declares that one who repeats a halakhah or insight in the name of its original exponent brings salvation to the world. This doctrine is supported by the verse "… and Esther told the king in the name of Mordecai" (Esther 2:22). Esther's report to Ahasuerus in the name of Mordecai set in motion a train of events which led to the salvation of the Jewish people. An even stronger statement establishing an absolute obligation to acknowledge the source of scholarly insights is found in a midrashic statement recorded in Tanḥuma, Parashat Bamidbar, 22, and in Yalkut Shim'oni, Proverbs 22:22, and cited by Magen Avraham, Oraḥ Hayyim 156:2: "One who does not repeat a matter in the name of the person who said it transgresses the negative commandment 'Rob not the weak because he is poor (Proverbs 22:22).' "
Nevertheless, when proper credit is given, permission need not be sought to repeat the insights of a scholar. The Tosefta, Baba Kamma 7:3, speaks of such conduct as "theft" but as being a meritorious practice nonetheless. The Tosefta declares, "But one who stealthily places himself behind a scholar and then goes and teaches [the scholar's] lesson, even though he is called a thief, acquires merit for himself as it is said 'They do not despise a thief if he steals to satisfy his soul (Proverbs 7:30).' In the end he will be appointed an official over the community and will bring merit upon the multitude and merit upon himself." Shakh, ḥoshen Mishpat 292:35, cites this source as providing justification, not simply for freely quoting a scholar's novellae but as establishing license for copying them for personal use without permission. It would appear to this writer that these sources also provide justification for recording Torah lectures without obtaining prior permission of the lecturer. Indeed, the lecturer would not ordinarily have justifiable grounds upon which to withhold such permission.1See also, R. Abraham Price, Sefer Ḥasidim im Mishnat Avraham, II, 75; cf., however, R. Menasheh Klein, Mishneh Halakhot, VII, no. 273. R. Moses Feinstein, in his recently published Iggerot Mosheh, Oraḥ Ḥayyim, IV, no. 40, sec. 19, rules that a lecturer may justifiably ban the taping of his lecture if the subject matter is such that “it should not be transmitted to one and all;” if it includes halakhic pronouncements which, although correct in theory, are in the category of rulings which it is not proper to publicize (halahkah ve-ein morin ken); or if the instructor is unsure of his analysis or conclusion and hence presents his material only in a tentative manner since in such circumstances “the teacher has reason to fear that his words are not correct and he may be embarrassed.”
Nevertheless, Teshuvot ha-Rif, no. 133, cited by Teshuvot ha-Rashba, VI, no. 286, rules that it is forbidden to appropriate a scholarly work for purposes of reproduction. Sedei Hemed, Pe'at ha-Sadeh, ma'arekhet ha-gimel, no. 5, cites a scholar who deemed Teshuvot ha-Rif to be in contradiction to the earlier cited statement of the Tosefta. It would appear, however, that the Tosefta can be adduced only in support of permission to appropriate the scholarly content of a work but not to steal the book itself. A scholar lacks title to his scholarly insights but certainly does retain title over his manuscripts. No material object may be removed from the possession of its owner without permission. Such removal, even with intention to return the object, constitutes a theft. Indeed, Shakh applies the Tosefta in permitting the copying of a manuscript in a situation in which the manuscript was entrusted to another scholar for safekeeping. Accordingly, it would appear that reproduction of a manuscript can be sanctioned only when no act of theft is involved with regard to the manuscript itself.2Cf., Teshuvot Bet Yiẓḥak, Yoreh De‘ah, II, no. 75, sec. 3.
As has been shown Judaism fails to recognize a right of privacy with regard to scholarly productivity. Indeed, there are grounds upon which it may be argued that a Torah scholar may be compelled to make his work available to others. Rema, Hoshen Mishpat 292:30, rules that, where books are not readily available, owners of volumes required for Torah study may be compelled by the Bet Din to make their personal libraries available to others without charge. The Bet Din may exercise this power in order to prevent neglect of Torah study. Arguably, the same consideration would augur in favor of enabling a Bet Din to compel a Torah scholar to make the fruits of his own studies available to others.3Cf., R. Naftali Zevi Yehudah Berlin, Teshuvot Meshiv Davar, I, no. 24.
Commercial publication, however, is another matter entirely. Such publication involves two considerations: 1) A scholar's or author's rights with regard to the fruits of his intellectual labor; and 2) a publisher's rights to be protected against loss of capital invested in a publishing enterprise.
The second question was first addressed by R. Moses Isserles, Teshuvot Rema, no. 10, in conjunction with a controversy which arose over publication of Rambam's Mishneh Torah. A corrected edition of Rambam's Mishneh Torah was published by Maharam of Padua in partnership with a non-Jewish Venetian publisher, Alvise Bragadini in 1550-1551. A similar edition was published in the same city almost simultaneously by another Christian publisher, Marco Antonio Giustiniani. The latter edition was published, not in order to satisfy market demand, but because Giustiniani was incensed that Maharam of Padua had entered into partnership with his competitor and was motivated by a desire to cause serious financial loss to Maharam of Padua. In order to achieve this end, the Giustiniani edition was offered for sale at a price significantly lower than that of Maharam of Padua.4See Meir Benayahu, Haskamah u-Reshut be-Defusei Venetsi’ah (Jerusalem 5731), pp. 23-25. Rema's responsum, which is a primary source regarding certain aspects of Noachide law, focuses upon whether the non-Jewish publisher had a right to republish a work still in print and thereby cause a financial loss to the prior publisher. Relying in part upon provisions of Jewish law which forbid competition which results in financial damage to a competitor, Rema concludes that the second publisher was not entitled to sell his edition until all copies of the edition published by Maharam of Padua had been sold. Accordingly, Rema declared it to be forbidden for any Jew to purchase the Giustiniani edition upon pain of excommunication. It is of interest that in issuing the pronouncement Rema took note of the fact that Giustiniani had previously performed valuable services on behalf of the Jewish community in publishing religious works but observed that there need be no fear of offending that publisher and thereby causing him to refrain from further undertakings of a like nature since his Hebrew publishing ventures were motivated by a desire for profit.
R. Shlomoh Luria, Teshuvot Maharshal, no. 36, and R. Mordecai Benet, Perashat Mordekhai, Hoshen Mishpat, no. 7, disagree with Rema in part. These authorities argue that competition of such nature is banned by rabbinic edict rather than by biblical law. Rabbinic forms of "theft," they argue, are forbidden only to Jews but not to Noachides.5Cf., however, Ḥiddushei Ḥatam Sofer, Baba Batra 21b, and Teshuvot Ḥatam Sofer, Ḥoshen Mishpat, no. 79, s.v. pasik ha-shem ha-rev‘i.
Subsequently, it became common practice for an author or prospective publisher to protect himself against financial loss by approaching a rabbinic authority and securing a formal ḥerem or ban against publication of the same work by any other party for a stipulated period of time. The text of this ban was then customarily published in the prefatory section of the book.6Teshuvot Ḥatam Sofer, Ḥoshen Mishpat, no. 79, s.v. mi-zeh nireh li, points out that the ḥerem was customarily issued against the future publisher rather than against the purchasers of the illicitly published volumes. However, in two other responsa, Ḥoshen Mishpat, no. 41, and VI, no. 57, Ḥatam Sofer declares that if a ḥerem against the publisher proves to be ineffective a ḥerem may be pronounced against the purchasers as well. The halakhic efficacy of such a ḥerem is a subject of dispute between R. Mordecai Benet and R. Moses Sofer.
The controversy arose with regard to the rights enjoyed by the publishers of the famed Rödelheim holy day prayer books. The publisher, Wolf Heidenheim, had secured a ḥerem against republication by other persons for a period of twenty-five years. The same prayer books were published shortly afterward by a firm in Dyhrenfürth. R. Mordecai Benet publicized the ban prohibiting the latter edition and cautioned against purchase of those prayerbooks. Thereupon, the publisher, a gentleman by the name of Schmidt, summoned R. Mordecai Benet to appear before the civil court alleging his conduct to be contrary to the law of the land since Schmidt had secured permission from the civil authorities to publish his edition of the prayer book. As a result, R. Mordecai Benet withdrew his earlier pronouncement forbidding purchase of that edition. In Perashat Mordekhai, no. 7, he explains that, as recorded by Shulḥan Arukh, Yoreh De'ah 232:12, written oaths are of no validity. Similarly, rules Perashat Mordekhai, only a ḥerem delivered orally is enforceable. Since the ban in question was issued solely in writing it could have no legal effect. This point is disputed by Hatam Sofer, Hoshen Mishpat, no. 79, s.v. ve-gam ha-ḥerem be-ktav, who rules that both an oath and a ḥerem in writing are valid.7See also Teshuvot Ḥatam Sofer, Yoreh De‘ah, nos. 220 and 227.
R. Mordecai Benet found the ḥerem to be of no effect for yet another reason as well. Citing Teshuvot Rivash, no. 271, he argues that a ban pronounced by a rabbinic authority is valid only in the city or area subject to that authority's jurisdiction but is not binding upon persons living in another locale. R. Moses Sofer, Teshuvot Hatam Sofer, VI, no. 57, in an opinion rendered in a later dispute which arose between the publishers of the Vilna edition of the Talmud and the publisher of the earlier Slavuta edition, takes sharp issue with R. Mordecai Benet with regard to this point as well. Hatam Sofer regards a ban against publication which may cause harm to an earlier publisher to be simply the instantiation of an edict of the "ancients" which was promulgated in earlier times in order to facilitate Torah study and which was accepted by all Jewish communities. In the opinion of Hatam Sofer, that early edict provided that any rabbinic authority might issue a ban in any specific case for any specified period of time in accordance with his judgment. Such a ban would then become binding upon all of Israel by virtue of the original edict. The view expressed in this responsum is a forceful reiteration of the position earlier expressed in Teshuvot Hatam Sofer, Hoshen Mishpat, no. 41.
There may, however, appear to be somewhat of a contradiction between Hatam Sofer's position in VI, no. 57 and in Hoshen Mishpat, no. 79. In Vl, no. 57, he declares that the ḥerem protecting the publishers of the Slavuta edition of the Talmud is binding upon all Jews. Nevertheless, Hatam Sofer adds that, regardless of the time period specified in the ḥerem, it is of no further effect once the original printing has been fully sold, even if the time period specified in the ḥerem has not yet elapsed. Hatam Sofer reasons that a ḥerem is binding even beyond the jurisdiction of the authorities who issue such a ḥerem only because, as has been noted earlier, it is encompassed within an ancient edict. That edict, argues Hatam Sofer, was designed, not for the benefit of publishers, but for the purpose of achieving the widest possible dissemination of Torah. This rationale applies only to a ḥerem designed to protect investors against loss. Hence there exists no broad authority to impose such a ḥerem beyond the term necessary to sell the original printing. The time period specified in the ḥerem should be understood as limiting the force of the ḥerem to the specified time period or to the period of time necessary for the sale of the printing, whichever elapses first.8See also R. Baruch Teumim Frankel, Ateret Ḥakhamim, Yoreh De‘ah, no. 25, who cites numerous sources which declare that the force of a ḥerem is limited to prevention of loss by the publisher and hence does not prevent subsequent publication by others after the earlier printing is exhausted. Therefore, opines Ateret Ḥakhamim, if a publisher wishes to protect himself in a second printing he must secure a second ḥerem even though the time stipulated in the first ḥerem has not yet elapsed. Kehillat Ya‘akov, Ḥoshen Mishpat, no. 2, presents a detailed rebuttal of the contrary position espoused by R. Ephraim Zalman Margolioth. A ḥerem which extends beyond the sale of the published edition can be construed only as being designed for the benefit of the publisher and hence may be binding within the jurisdiction of the authority who issues such a ḥerem but is not binding upon residents of any other area. Hatam Sofer further declares that if the original printing has been exhausted it is even meritorious for other publishers to print further editions in order to make volumes of the Talmud more widely available. Yet, in Hashen Mishpat, no. 79, Hatam Sofer upholds the validity of the ḥerem in favor of the publishers of the Rödelheim prayer books for the entire twenty-five year period of the ḥerem even though the prayer books were reprinted many times during that period.
However, it is clear from Hatam Sofer's discussion in Hoshen Mishpat, no. 79, that two factors obtained in the Rödelheim dispute which were not present in the Slavuta case: 1) The expenses incurred in compiling and printing the material for the Rödelheim prayer books could not have been recouped other than through multiple printings; 2) R. Wolf Heidenheim was not simply an entrepreneur engaged in publishing a religious work but had personally expended much effort in gathering and editing manuscripts. Hatam Sofer cites the halakhah recorded in Ketubot 106a which provides that those employed in correcting manuscripts in Jerusalem and the scholars who taught the laws of ritual slaughter, etc., may receive compensation for their efforts from Temple funds. Since the labor of compiling and editing manuscripts deserves communal remuneration, argues Hatam Sofer, the Bet Din may provide compensation by prohibiting others from engaging in a similar publishing enterprise.
R. Mordecai Benet, Perashat Mordekhai, no. 8, argues in effect, that no ancient edict of the nature described by Hatam Sofer could have been promulgated. In his opinion "public policy" required, not protection of the publisher, but promotion of inexpensive editions of Torah works. As a parallel he cites Baba Batra 22a which declares that local tradesmen cannot prevent itinerant peddlers of cosmetics from selling their wares. Ezra decreed that peddlers be permitted to travel from city to city so that cosmetics and jewelry be readily available for Jewish women. The goal of his decree was to assure that husbands would find their wives attractive. Although protecting local merchants and assuring them a livelihood would also have served to further that purpose, Ezra quite obviously considered that any measure designed to lower prices would, in the long run, be more effective in achieving this goal. Similarly, argues Perashat Mordekhai, widespread distribution of sacred texts is better achieved by promoting competition rather than by protecting a publisher's monopoly. Hatam Sofer, Hoshen Mishpat, no. 79, s.v. ve-nireh counters, in effect, that local tradesmen are unlikely to close their businesses because of the competition of itinerant peddlers but publishers, if put at risk, are likely to seek other investments for their capital.
Rabbi Benet does, however, distinguish between the rights of an author or editor and those of a publisher. A publisher is entitled to no protection with regard to a work which is in the public domain. However, it is inequitable for a person to make use of another's labor and talent in order to jeopardize the commercial interests of the latter. He justifies Rema's ruling with regard to Maharam of Padua's rights to the publication of Rambam's Mishneh Torah by pointing out that Maharam of Padua laboriously corrected the manuscript versions and, in addition, composed explanatory notes.
The extent of an author's proprietary interest in his work is the subject of dispute between two eminent nineteenth-century authorities, R. Joseph Saul Nathanson and R. Isaac Schmelkes. The controversy arose in the wake of the republication by R. Joseph Hirsch Balaban of an edition of the Shulḥan Arukh which included the responsa précis Pitḥei Teshuvah. A complaint was lodged against the publisher by R. Abraham Joseph Madfis of Lemberg. The latter claimed that he had purchased the publication rights of Pitḥei Teshuvah from the author. The case was heard by Rabbi Samuel Waldberg of Zolkiew who ruled that the plaintiff could claim no greater right as the successor to the publication rights than could be claimed by the author himself. Rabbi Waldberg ruled that in publishing the editio princeps of the work in 5596 the author of Pitḥei Teshuvah had forfeited all subsequent rights through his failure to publish an issur, or warning tantamount to a copyright notice, prohibiting publication by other parties.9See also R. Isaac Schmelkes, Teshuvot Bet Yiẓḥak, Ḥoshen Mishpat, no. 80. Moreover, since all copies of the original publication had been sold, the author could not plead unfair competition and potential loss of capital. Rabbi Waldberg, however, conceded that, had such "copyright notice" been published, the author would have retained a proprietary interest and might have conveyed such interest to whomever he desired.
Rabbi Joseph Saul Nathanson, Sho'el u-Meshiv, Mahadura Kamma, I, no. 44, sharply disputes this view and finds for the plaintiff. In his opinion, an author retains publication rights for an unlimited period of time. Publication of an issur for a specified period of time, argues Sho'el u-Meshiv, is designed, not to protect the author, but, on the contrary, serves to grant permission to all and sundry to republish the work upon expiration of the stipulated time period. The author does this, says Sho'el u-Meshiv, because he wishes his work to have the widest possible circulation. However, asserts Sho'el u-Meshiv, absent such a specified time period, publication rights remain vested in the author forever.
Sho'el u-Meshiv makes another interesting distinction between the rights of a publisher and those of an author. A ḥerem in favor of the publisher, he declares, is designed to promote dissemination of the publication rather than to protect the publisher's rights. Hence, rules Sho'el u-Meshiv, a ḥerem cannot prevent publication in a foreign country which bans the import of the already published edition.10See also Teshuvot Bet Yiẓḥak, Ḥoshen Mishpat, no. 80, and Ateret Ḥakhamim, Yoreh De‘ah, no. 25. The author, however, declares Sho'el u-Meshiv, has an absolute proprietary right over his work and may ban publication under any and all conditions.
R. Isaac Schmelkes, Teshuvot Bet Yizḥak, Yoreh De'ah, II, no. 75, rules that an author enjoys the right to publish his own work and thereby to preserve the mizvah of disseminating his Torah novellae for himself. A similar right is also reserved to the author's heirs. Nevertheless, he argues, no person has a pecuniary right with regard to Torah. Hence no author can restrain publication of a previously published work. A similar opinion is expressed by R. Abraham Rothenberg in a letter of approbation published in the Lublin, 5648 edition of the Kizur Shulḥan Arukh. Nevertheless, Bet Yizḥak, employing the concept dina de-malkhuta dina concedes that such action is forbidden by Halakhah when prohibited by civil law. Bet Yizḥak rules that the "law of the land" is binding in Jewish law when the secular law is designed to promote a valid public policy. Protection of authors is a valid consideration and hence, when forbidden by civil law, a work cannot be republished without permission of the author. This position is reiterated in Teshuvot Bet Yizḥak, Hoshen Mishpat, no. 80. However, in this responsum, written at a later date, Bet Yizḥak concludes his remarks with the statement: "Nevertheless, I make no final determination for perhaps there is some right with regard to this on the basis of Torah law or perhaps the author possesses some right by virtue of custom."
Teshuvot Hatam Sofer, Hoshen Mishpat, no. 79, s.v. ve-im ken be-sha'arei madfisim, distinguishes between authors of halakhic compendia or Torah novellae and editors of prayer books and the like. Although he concedes that an author is entitled to compensation for his labor, he argues that every person is nevertheless obligated to teach Torah without compensation. Accordingly, although an author or publisher is entitled to protection against loss of capital ventured in a publishing enterprise, Hatam Sofer argues that an author is not entitled to profit from the dissemination of Torah. Editors of manuscripts, on the contrary, are entitled to be compensated for their labor. It does, however, appear to be arguable that authors are entitled to similar compensation, not for making their insights available to others, but for the physical labor expended in preparation of manuscripts, proofreading, etc.
Regardless of whatever proprietary rights a scholar may enjoy with regard to the product of his studies, Torah scholars were wont to be more concerned with dissemination of their scholarship than with pecuniary profit. Hatam Sofer, in the introduction to his responsa volume on Yoreh De'ah, writes " … everything with which God has graced me, whether in halakhah or in aggadah, lies as res nullius; anyone who wishes to copy them may come and copy them and thus did our predecessors do before the printing press." Hafez Hayyim, in a letter which appeared in the Warsaw newspaper, Der Yid, 27 Sivan 5673, wrote, "I grant permission for all time to any Jew to reprint [the Mishnah Berurah], but only as it is now printed, viz., Shulḥan Arukh, Be'er Heitev, Sha'arei Teshuvah, together with my explanations, Mishnah Berurah, Bi'ur Halakhah and Sha'ar ha-Ẓiyun, without change. However, I grant permission in this manner: that from each hundred copies which are printed [the publisher] is obligated to give 4 percent to Houses of Study, i.e. 4 volumes out of every hundred to House[s] of Study…."
Similarly, at an earlier time, R. Naphtali Zevi Yehudah Berlin freely granted permission for republication of his edition of the She'iltot de-Rav Aḥa'i Ga'on and of his accompanying commentary, Ha'amek She'elah. The following notice is included in the introduction to that work, Petaḥ ha-Emek, chap. 3, sec. 5: "Whosoever desires to print this book in this country or in another country, I hereby give him permission to do so without charge. I hereby wholeheartedly grant him all [rights] in order to disseminate the teaching of our master [R. Aḥa'i Ga'on] of blessed memory. But it is my request and admonition that one who considers reprinting while I or my son, R. Chaim Berlin, is yet alive notify us, for perhaps I will have further novellae or I may correct the language or the subject matter…."
Repayment of Loans and Currency Exchange
Until recently the Israeli pound was officially pegged to the dollar. The value of the lira was established by decree of the government of the State of Israel and over the course of three decades was devalued on numerous occasions. All official transactions took place at the legally established rate. Since there were stringent controls with regard to the amount of Israeli money which might be converted into other currencies and of the circumstances under which such exchanges might be made, there emerged a so-called free market where exchanges were made, albeit illegally, without regard for such regulations. Understandably, the dollar and other hard currencies commanded a price on the free market higher than the official rate of exchange.
This situation led to a most interesting question with regard to the laws of usury. Let us suppose that a person has borrowed seven lira. At the prevailing official rate at the time of the loan the currency he has borrowed was valued at exactly one dollar. However, on the free market, the dollar commanded a significantly higher rate, e.g., 8.50 pounds. The question, then, is this: May the borrower repay his debt in dollars at the official rate of exchange? At the official rate, the borrower is paying no interest whatsoever; however, at the free market rate he is paying a sum significantly greater than the value of the pounds which he has borrowed. Insofar as the laws of interest are concerned, is value determined by the legal rate set by government authorities or by the value actually commanded in the market-place?
This question was posed to a number of Israeli scholars by Rabbi Yosef Hertz. Their answers are collected and published in the Sivan 5734 issue of the Sephardic Torah journal, Or Torah. The answers reveal a significant difference of opinion among the respondents.
Rabbi Hertz himself is of the opinion that, under such circumstances, repayment in the form of American dollars constitutes usury. He carefully points out that this is so even though it may be forbidden according to Halakhah to engage in black market activities. Indeed none of the respondents offers sanction for such illicit activity. Rabbi Hertz argues that while the government may licitly regulate currency exchange and while the populace may be obliged to obey government decrees, nevertheless, the intrinsic value of currency cannot be changed by government edict. The value of any commodity is determined by the price it actually commands in the marketplace. He attempts to show the cogency of his position by means of a reductio ad absurdum. Suppose the government were to decree the dollar to be totally devoid of value and to forbid all dollar transactions. Under such circumstances if, for purposes of contracting a marriage, a woman were to accept a dollar in place of a ring or other object of value, would the marriage be invalid? Rabbi Hertz answers that since the dollar does have a value, and despite government regulations, can indeed be sold on the free market, the marriage is valid. Similarly, he argues, insofar as the laws of usury are concerned, the value of the dollar is the value it commands on the free market. Rabbi B. Mendelsohn concurs in the opinion that repayment of a debt in such a manner constitutes usury. He argues that a lender who accepts payment in dollars is grateful to the borrower for returning an object of enhanced value and this alone causes the transaction to be usurious in nature.
Rabbi Menachem Aaronberg adopts the opposite position and rules that repayment in dollars is not objectionable. He agrees with Rabbi Hertz that the marriage of a woman betrothed with a dollar which had been banned by the government as legal tender would be completely valid. The value of an object for purposes of marriage is contingent upon its value when exchanged for silver. Since the dollar may be converted into silver,11The reference is obviously to silver certificates, which are no longer issued by the United States government, rather than federal reserve notes which are not redeemable in silver. For a discussion of the halakhic status of bank notes in general as well as for purposes of contracting a marriage, see Teshuvot Ḥatam Sofer, Yoreh De‘ah, no. 134. it is an object of value even if it could not, under any circumstances, be converted into pounds. Furthermore, anything which is an object of value in any locale may be utilized any place in the world for purposes of contracting a valid marriage. He argues, however, that for determinations pertaining to usury, the value of an object is determined by the price it commands in the locale where payment is made. Since exchange of the dollar on the free market is illegal and punishable by fine and imprisonment, it is not freely exchangeable other than at the official rate. Its value, then, must be viewed at the price it commands at the official rate of exchange.
Several of the respondents who permit repayment in dollars under these circumstances emphasize that this procedure is permissible only if payment in hard or more valuable currency is not intended as an indication of gratitude to the lender for having extended the loan. Such expression of gratitude would itself be a violation of the laws of usury.
At present, the Israeli shekel (which has replaced the lira as the basic monetary unit) is deregulated and there are no restrictions with regard to conversion into other currencies. Since the value of the shekel is controlled solely by the free market, the problem raised herein is no longer actual. Dollar-linked loans do, however, pose a problem with regard to usury prohibitions. Loan and repayment of commodities rather than specie is forbidden by rabbinic decree because of possible enhancement of the value of the commodity. R. Abraham Isaac Hoffmann, Ha-Emek, Nisan 5736, cites Hazon Ish, Yoreh De'ah 72:8, who states that loans expressed in the currency of a foreign country must be considered to be in the category of commodity loans (sa'ah be-sa'ah). As the relative values of the currencies of different countries fluctuate, the currency of the place of residence is deemed to be the "commodity" which either increases or decreases in value. Thus, for the Israeli, insofar as Jewish law is concerned, the depreciation of the shekel is really revaluation of the dollar, i.e., the dollar has increased in value while the lira has remained stable. Thus, repayment of a fixed number of dollars is repayment of a "commodity" which has appreciated in value.
Severance Pay: Hired Servant or Independent Contractor?
A hired employee, under Jewish law, enjoys certain benefits which do not accrue to an independent contractor. Most basic of these is the right of the laborer "to withdraw even in the middle of the day." The Gemara, Baba Mezi'a 10a, declares that involuntary labor is a form of servitude. Since Jews are described by God as "my servants" no Jew can rightfully be forced to serve a mortal master as a laborer, even if he has previously agreed to do so. A laborer cannot be compelled to work against his will, since forcing him to do so would relegate him to the status of a slave. Nevertheless, if his withdrawal should result in irretrievable loss, the laborer may be required to compensate his employer for such loss. The laborer is, however, not liable for damages simply because other workers hired in his stead demand higher wages.
An independent contractor, on the other hand, is in no way comparable to a slave. He, therefore, is not granted the prerogative of withdrawing from his contractual agreement. Although specific performance cannot be compelled and hence the contractor cannot be forced to carry out his undertaking, nevertheless any expenses incurred in completing the task may be deducted from the sum owed to the contractor.
By virtue of custom and practice workers are entitled to paid vacations and, particularly in Israel, to severance pay upon dismissal. Independent contractors do not enjoy such benefits. Writing in the 5737 issue of Torah she-be-'al Peh, Rabbi Shmuel Baruch Werner reports on a case which came before the Tel Aviv Bet Din, of which he is a member. A school had hired a chauffeur to transport students in his own car on a daily basis. Following four years of employment in this capacity, the chauffeur was peremptorily dismissed in the midst of the school year. The chauffeur demanded severance pay, as is customary and usual in Israel upon dismissal of a worker. The school rejected this demand, arguing that the chauffeur was an independent contractor rather than a hired laborer and hence not entitled to such compensation.
The crucial legal issue in this dispute hinges upon delineation of the criteria which distinguish an independent contractor from a hired worker. In terms of usual relationships, the distinguishing criteria are two in number: (1) a laborer is hired for a specific period of time while a contractor is engaged to perform a specific task; (2) a hired laborer is bound to the master in being obligated to work during fixed hours whereas an independent contractor may work when it pleases him to do so.
It is, however, possible for a person to be hired for the performance of a specific task, regardless of its duration, but with the stipulation that the task be performed at a certain stipulated hour or between certain hours of the day. Is a person who enters into a contract to perform a specific task at a specific time, but is not bound to work beyond completion of the task, a hired laborer or a contractor? The chauffeur, in the case litigated before the Bet Din, had obligated himself to perform a specific task, rather than to work for a specific period of time, but had bound himself to transport the children at appointed hours. Conversely, what is the status of a person hired and compensated on a piece-work basis but who has agreed to work certain specified hours?
Mahari Engel, no. 16, maintains that the crucial criterion which distinguishes an independent contractor from a laborer is contracting for the performance of a specific task. Thus, a ritual slaughterer, who is paid for each animal he slaughters, enjoys the status of a contractor even though he is obligated to make his services available during specific hours. Rabbi Werner, however, cites a number of latter-day authorities who apparently disagree. Most explicit of these is Serna, Hoshen Mishpat 333:16, who cites as the sole distinction between a hired laborer and a contractor the fact that the latter may work "during whatever hours of the day he chooses in the manner of a master doing his own labor" while a hired laborer has no such discretion. The manner of compensation, whether on a weekly or piece-work basis, is irrelevant. R. Shlomoh Kluger, Hokhmat Shlomoh, Hoshen Mishpat 333, extends this concept to encompass the case of a person who has not obligated himself to perform a set task but who has obligated himself to work a set period of time, e.g. two hours, but who leaves himself the option of selecting the hours of work as he chooses. Thus a tutor who agrees to teach at a set hour is a hired worker, while one who agrees to teach for a two-hour period but reserves the right to choose and to vary the time of the lesson is an independent contractor. This distinction, and its application to teachers, is found in Or Zaru'a, authored by R. Isaac of Vienna, Baba Mezi'a, chap. 6, no. 242. On the basis of these sources the Tel Aviv Bet Din ruled in the case at hand that since the chauffeur had been obliged to perform his duties at certain specified times he is entitled to the rights and privileges of a laborer.
Judges Under Threat
In a contribution to the Tevet 5740 issue of Ha-Ma'ayan, Dr. Abraham S. Abraham discusses a number of questions pertaining to interpersonal obligations in face of danger. Perhaps the most intriguing of these is the obligation of a judge to hear a case and to render a just verdict despite a threat directed against him.
The biblical passage "You shall not be afraid of the face of any man" (Deuteronomy 1:17) is understood as an admonition directed to judges. This exhortation is amplified in the Sifre ad loc., with the comment, "Lest you say 'I am afraid of so-and-so lest he kill my son or lest he kindle my stack [of corn].' " R. Yonatan Eibeschutz, Urim ve-Tumim 12:2, states that this exhortation applies only in the case of a judge who has already begun trying a case. However, prior to accepting a case for adjudication, a judge who has reason to be afraid of one of the litigants may justifiably decline to involve himself. Indeed, the Gemara, Sanhedrin 6b, cites this verse in stating that a judge who has already heard the litigants' arguments and knows in which direction "the verdict inclines" is forbidden to withdraw because of fear.
The problem which must be addressed is why this prohibition differs from others. The general principle is that all prohibitions are set aside in face of danger to life. If so, it should follow that a judge who feels threatened should be permitted to withdraw in order to prevent danger to himself or to others. Teshuvot Shevut Ya'akov, I, no. 143, states that in cases of genuine danger this is indeed the rule with regard to the prohibition "You shall not be afraid of any man" as well. Nevertheless, declares Shevut Ya'akov, Halakhah provides that a mere threat directed against a judge must be disregarded on the grounds that, in general, no Jew is to be suspected of actually contemplating a murderous reprisal against a judge because of an unfavorable verdict. However, when a real danger does exist, concludes Shevut Ya'akov, the judge may withdraw even after hearing arguments.
R. Moses Schick, Maharam Schick al Taryag mizvot, no. 416, also declares that a judge may withdraw at any time because of a threat to life. Maharam Schick asserts that the ruling recorded in Sifre follows the position that one must suffer martyrdom rather than misappropriate the property of another. Since normative Halakhah is not in accordance with that view, a judge may likewise withdraw from a case in face of danger.
In the following issue of Ha-Ma'ayan, Nisan 5740, the editor, R. Yonah Emanuel draws attention to a statement of Rabbenu Yonah, Sha'arei Teshuvah 3:188, that apparently is at variance with the position of Shevut Ya'akov. Rabbenu Yonah states, "A person must deliver himself to danger … one who sits in judgment should not fear that he may die (at the hands of) any man as it is said, 'You shall not be afraid of the face of any man.' "
Rabbi Emanuel also cites an anecdote recorded in Sanhedrin 19a. A slave of King Yanai committed an act of homicide. Thereupon Shimon ben Shetaḥ summoned Yanai to appear before the Bet Din. Upon Yanai's demurrer, the colleagues of Shimon ben Shetaḥ refused to support the demand that the trial of the king proceed. They were obviously afraid of incurring the wrath of Yanai. Shimon ben Shetaḥ called on God to punish his colleagues. The Gemara concludes the narrative by stating that the angel Gabriel cast them to the ground and they died.
A similar event is recorded by Josephus, Antiquities 14:9. Herod was summoned before the Sanhedrin because he had unjustly put people to death. When he appeared, attired in his royal robes and attended by armed warriors, the members of the Sanhedrin fell silent. Shammai then chastized the judges of the Sanhedrin and predicted that they would fall by the sword.
The question thus far is whether or not the judge may withdraw from a case because of fear. A further question which presents itself is whether, even according to the position of Shevut Ya'akov (who maintains that in face of genuine danger the judge may recuse himself) the judge who finds it impossible to withdraw may render an unjust verdict in favor of one of the litigants who has threatened him with death? The discussion in Ha-Ma'ayan presents two opposing viewpoints in response to this question.
Rabbi Eliezer Waldenberg, Jerusalem scholar and member of the Supreme Rabbinic Court of Appeals, is quoted (Ha-Ma'ayan, Nisan 5740) as stating that in the face of a real threat to life even subversion of justice is warranted. He bases himself on the Gemara, Ketubot 19a, which permits false testimony in the face of danger. Rabbi Waldenberg states that the same principle applies as well to rendering an unjust verdict. This is also the opinion of R. Moses Schick, Teshuvot Maharam Schick, Oraḥ Hayyim, no. 303, and Maharam Schick al Taryag mizvot, no. 416.
Dr. Abraham (Ha-Ma'ayan, Tevet 5740) quotes Rabbi Emanuel as expressing the view that it is not reasonable to assume that miscarriage of justice is permissible even in the face of danger. Dr. Abraham responds with the observation that the transgression involved is no different from other transgressions which are suspended in the presence of danger.
It seems to this writer that the prohibition involved in rendering a false juridical decision is indeed qualitatively different from other transgressions. Baba Kamma 38a reports that the Romans sent two officials to the sages in the Land of Israel to study Torah. The officials expressed satisfaction with what they learned with the exception of one aspect of tort liability in which Jewish law seems to manifest prejudice against non-Jews (the Jewish owner of an ox which gores the ox belonging to a non-Jew is not liable for damages, while the non-Jewish owner of an ox which gores an ox belonging to a Jew must make restitution). Despite their discomfiture with this legal provision, the officials promised that they would not divulge this aspect of Jewish law to the governmental authorities in Rome. R. Shlomoh Luria, Yam shel Shlomoh, Baba Kamma 4:9, raises an obvious question. Imparting this information to the Roman officials could easily have had catastrophic consequences for the entire Jewish people. There was, after all, no guarantee that the officials would be kindly disposed and would not deliver a full report to the government in Rome. Why, then, did the sages not misrepresent the law by telling the Roman emissaries either that, in the case in question, both a Jew and a non-Jew would be culpable for damages, or that neither would be culpable? Yam shel Shlomoh responds by declaring that Torah may not be falsified even in the face of danger; falsification of even a single detail is tantamount to renunciation of the Torah in its entirety.12See, however, Teshuvot Yad Eliyahu, no. 48, who disagrees with this position.
It would appear that Yam shel Shlomoh's position is reflected in the well-known narrative related by the Gemara, Gittin 56a. Bar Kamza determined to betray the Jewish people to the Roman Emperor:
He went and said to the emperor, The Jews are rebelling against you. He said, How can I tell? He said to him: Send them an offering and see whether they will offer it [on the altar]. So he sent with him a fine calf. While on the way he made a blemish on its upper lip, or as some say on the white of its eye, in a place where we [Jews] count it a blemish but they do not. The Rabbis were inclined to offer it in order not to offend the Government. Said R. Zechariah b. Abkulas to them: People will say that blemished animals are offered on the altar. They then proposed to kill Bar Kamz a so that he should not go and inform against them, but R. Zechariah b. Abkulas said to them: People will say one who makes a blemish on consecrated animals is to be put to death. R. Yohanan thereupon remarked: Through the forbearance [anvatanuto] of R. Zechariah b. Abkulas our house has been destroyed, our Temple burnt and we ourselves exiled from our land.
It is popularly assumed that the Gemara, in describing anvatanuto of R. Zechariah ben Abkulas, is censuring him for misplaced humility and lack of initiative. This understanding is reflected in a note in the Soncino translation (page 255, note 2), which renders this term as "humility." Yet Rashi translates the term anvatanuto as "his forbearance" or "his patience." Forbearance is a matter quite different from humility and does not seem to warrant censure.13See, however, R. Elijah of Vilna, Dvar Eliyahu, Parshat Mishpatim, s.v. lo tiheyeh aḥarei rabbim. The Gemara's categorization of R. Zechariah's action is thus a statement of fact and is not a criticism.
The reaction of the sages was quite predictable. The prohibition against offering an animal with a blemish may certainly be ignored in order to preserve life. Bar Kamza, who instigated the Roman Emperor, was certainly in the category of a rodef, an aggressor who causes the death of innocent victims through his actions. Causing the death of the messenger who had made a blemish in the animal would certainly have been permitted as an act of self-defense. But R. Zechariah ben Abkulas did not respond in the obvious, intuitive manner of his colleagues. His concern was not with any single infraction of Jewish law. He was concerned lest "people will say that blemished animals may be offered on the altar" and lest "people say that one who makes a blemish on consecrated animals is to be put to death." The overriding concern was that the act might not be perceived as an ad hoc emergency measure designed to prevent loss of innocent lives, but that it might be misinterpreted as normative Halakhah. Falsification of Halakhah, opined R. Zechariah b. Abkulas, is not permissible even in face of the threat of death, destruction of the Temple, and exile of the Jewish people. Perversion of the mesorah (tradition), even with regard to a single halakhah, is tantamount to denial of the Sinaitic revelation.
Of interest in this regard are the comments of R. Ya'akov Emden, Migdal Oz, Even Boḥen 1:35. R. Ya'akov Emden cites Teshuvot Radbaz to the effect that one must suffer martyrdom rather than deny the veracity of the Law of Moses and adds that the same applies with regard to denial of the Oral Law and the words of the sages.
It would thus seem quite logical that a false judgment may not be issued even in face of a threat to life. A false judgment is tantamount to perversion of the law and falsification of the Halakhah. Rabbenu Yonah, who apparently maintains that a judge may not decline to sit in judgment despite a threat to his life, may also have been prompted by the consideration that failure to render judgment may also lead to distortion of the law. It may be noted that Rambam, Hilkhot Sanhedrin 22:1, followed by Shulḥan Arukh, Hoshen Mishpat 12:1, distinguishes between a mumḥeh le-rabbim (i.e., a publicly appointed judge) and others who are qualified to serve as judges, but who hold no official position. The latter may decline to hear a case for fear "lest he kill my son or kindle my stack [of corn]" but a mumḥeh le-rabbim dare not decline even under such conditions. This distinction may perhaps be explained if it is understood that the formally established Bet Din is obligated to guarantee transmission of the Law. No person may falsify the mesorah, but members of the publicly appointed Bet Din incur the additional obligation of actively guaranteeing its preservation. Hence, under no circumstances may they allow the Halakhah to fall into disuse and thus into oblivion by declining to sit in judgment.
In the same responsum Rabbi Feinstein rules that unauthorized copying of a tape prepared for commercial purposes is forbidden as constituting an act of theft. Although no sources are cited in the brief discussion presented, this ruling seems to espouse the position adopted by Sho'el u-Meshiv. The rights of a lecturer to material recorded by himself on a tape would appear to be identical to those of a scholar with regard to his written novellae.