Parshas Behar

ולא תונו איש את עמיתו   כה:יז, כאן הזהיר על אונאת דברים     רש”י שם

The Rambam does not bring the issur of onaas devarim in Hilchos Deios (perakim 6 and 7) together with the rest of the issurim pertaining to speech.  Where he brings it is together with the issur of onaas mamon (overcharging or underpaying, Hilchos Mechira 14:12).   What the Rambam meant to imply by organizing it in this way needs explanation.

(From the notes of Reb Daniel Fast)

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והארץ לא תמכר לצמיתות כי לי הארץ      כה:כג

There are three approaches in the Rishonim how to explain this pasuk.  Rashi says it’s a lav on the one who bought the field to withhold it when Yovel comes.  He must return the field to its original owner, and if he doesn’t he has violated this lav.  Rashi explains the end of the pasuk – ki li ha’artez – to mean, “don’t feel bad about it because it is not yours.”  It’s a word of comfort to the buyer that, even though he paid money for it and now he is being forced to leave, he shouldn’t feel bad because really it is not his.

The Rambam says differently.  In Hilchos Shemittah (perek 11) he says that this lav is violated by both the seller and the buyer if, when they execute their transaction, they contracted and agreed to a mechira l’tzemisus (a permanent sale that will never be undone).  It is at that moment of finalizing such a deal that the violation of the lav takes place according to the Rambam; not when Yovel comes.

The third shitah is the Ramban who says that it is a lav against selling to a non-Jew because he will not give it back when the Yovel year comes. The Ramban holds that the lav is not to do something that is an attempt at mechira l’tzemisus, but to actually do something that will end up being a mechira l’tzemisus.

Coming back to the Rambam, if a buyer and seller do agree to making a mechira l’tzemisus, the Rambam says that it does not take effect as such, and the property will revert back to the ownership of the seller when Yovel comes; despite what they agreed to in their contract.

Some Rishonim in Maseches Makos have a girsah in the Rambam that we don’t have.  They quote the Rambam as saying that the mechira l’tzemisus would in fact take effect because of the general rule, kol tnai sheh’b’mamon kayam – one can generally make whatever stipulations he wants when it comes to monetary transactions.  The way we have the Rambam, though – that the stipulation of it being an eternal sale does not take effect – it’s not at all difficult to understand why the general concept of kol tnai sheh’b’mamon does not apply over here.  Mamon means that it is a monetary matter that is between these two people.  Therefore, more or less, it is the person’s prerogative to stipulate conditions as he sees fit.  However, over here the pasuk emphasizes, ki li ha’aretz.  In other words, it is not just a monetary right that the Torah affords the seller get his field back by Yovel, but it is an intrinsic din that the field has to go back to him.  Therefore, the seller’s stipulation is irrelevant.

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When it comes to the lav that forbids selling maaser beheimah, chermei kohanim, and a yefas toar, the Rambam says “lo asah klum” (Hilchos Bechoros 6:5).  Someone who attempts selling such items “has done nothing”.  Regarding an attempt at amechira l’tzemisus, though, the Rambam employs a different lashon: “ein maaseihen moilin” – their actions do not take effect.  Why the difference?  It’s very straightforward.  When it comes to maaser beheima, chermei kohanim, and yefas toar, he inherently has no ownership over such items.  Therefore, his “act of selling” is not a maaseh mechira at all.  It’s not his to sell!  Hence the expression, “lo asah klum” – he did nothing.  The lav over there is, “it’s not yours; don’t go through the motions of trying to sell it.”  On the other hand, when it comes to not selling a field l’tzemisus, inherently it is his field and his ownership of it is eternal (sdei achuzah).  Within the rubric of acquisitions, whatever is yours you can sell.  Since this field is his forever, the general rules of Choshen Mishpat would have had it that he can sell it forever as well.  Just what, the Torah says nevertheless don’t do it.  That’s why the Rambam says “ein maaseihen moilin”.  It is in fact an authentic maaseh mechira – l’tzemisus stipulation and all – just that the Torah imposes a “stop-order” measure on the l’tzemisus stipulation and renders it ineffectual.

This understanding carries implications for a statement of the Mishneh L’Melech.  The Mishneh L’Melech says that although the Chinuch writes that there is malkos for the lav of making a mechira l’tzemisus, the Rambam in Hilchos Bechoros seems to not hold that way.  How so?  Regarding someone who violated the prohibition and tried to sell maaser beheimah, chermei kohanim, or a yefas toar, the Rambam says that there is no malkos since the sale is completely ineffectual.  As such, reasons the Mishneh L’Melech, the same should apply to a mechira l’tzemisus since there as well the Rambam says that the l’tzemisus does not take effect.  However, there is room to posit not like the Mishneh L’Melech, and that there is in fact no machlokes between the Rambam and the Chinuch.  Based on how we explained the divergent expressions of the Rambam (lo asah klum versus ein maaseihen moilin) it could be that specifically by maaser beheima, chermei kohanim, and yefas toar where his “act of selling” is really not at all an act of selling, that is where the Rambam says there is no malkos; but by mechira l’tzemisus – which intrinsically is an authentic maaseh mechira, just that the lav derails its efficacy- it is possible for there to be malkos.

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ואם לא יגאל עד מלאת לו שנה תמימה      כה:כט

A person sold his house which is located inside of an ihr chomah, a walled-in city.  The seller has one year, the pasuk says, to redeem his house.  If a full year passes without the seller redeeming it, the house becomes the permanent property of the buyer.  It does not return to the seller even after the yovel year.

Now, here’s an interesting question: what if the seller wanted to redeem it on the final day of the year from when he sold it, but he was an ahnus.  Something happened out of his control that prevented him from doing it.  Maybe he fell terribly ill, or there was a horrible traffic jam.  Whatever the case may be.  There was some circumstance on that final day that made it impossible for him to buy his house back.  He was an ahnus b’yom acharon.  Does the house nevertheless become the permanent possession of the buyer, or do we say that the seller did not lose his right to buy it back since, after all, he was an ahnus?

The Agudah (Gittin, Perek Mi Sheh’Achzo, 132) is the one who poses this question, and he proves that an ahnus b’yom acharon – someone who was prevented at the last moment from carrying out the specified requirement – is not considered an ahnus.  What’s his proof?  The Mishna in Arachin (9:4) which explains Hillel’s takanah regarding seller’s of batei arei chomah redeeming their houses.  The buyers, who of course wanted the sale to be permanent, would go into hiding at the end of the year so that the sellers would not be able to buy the house back.  Therefore, Hillel enacted that the seller can place the money in a special chamber in the Beis Ha’Mikdash, and just break down the door of his sold house and reoccupy it.  Whenever the erstwhile buyer decides to go to the Beis Ha’Mikdash and get his cash, it’s there ready and waiting for him.

So there you have it, says the Agudah.  If a last-minute ohnes would be classified as a bonafide ohnes, there would have been no need for Hillel’s takanah.  So what that the buyers were going into hiding at the end of the year and the sellers couldn’t exercise their right to redeem their sold house?  It’s not his fault that he cannot buy it back.  He’s standing there with the money and wants to buy it back, just he cannot find the buyer.  He’s an ahnus!  So why did Hillel have to make a special takanah allowing the seller to break down the door and reoccupy his sold house?  Clearly, concludes the Agudah, we see from here that an ahnus b’yom acharon is in fact not considered an ahnus.  A last minute circumstance blocking his way doesn’t count.

And why not, explains the Agudah.  Simple.  Because he had the whole year to buy it back!  No-one was stopping him from doing so up until this point.  He had plenty of time to exercise his redemption right.  Therefore, a last-minute ohnes does not suffice to categorize him as a bona fide ahnus.  He is not an ahnus, and the house becomes the permanent property of the buyer.

In Yoreh Deiah (232:12), the Ramah discusses the case of someone who made a neder to do something within the year, he pushed it off until the end of the year, and at that point was not able to fulfill his neder because of some mitigating circumstance.  It is a machlokes, says the Ramah, if he is considered as having violated his neder or if he is considered an ahnus.

As we just saw, it is the Agudah who holds that in such a scenario he has in fact willfully violated his neder.  The Agudah is the one who holds ahnus b’yom acharon is not considered an ahnus since he had all the time in the world before this point to fulfill his neder.

And who is the dissenting opinion?  It’s the Nemukei Yosef (Bava Kama 11a).  The primary point he is addressing there is the halacha of tashlumin by davening.  Someone who didn’t daven can make it up by davening two Shmoneh Esrei’s by the next teffilah.  However, there is a proviso: it has to be that his missed teffilah was by accident, not willful.  So what if someone missed teffilah because he was involved in some activity and thought, “I still have plenty of time to daven”, and he subsequently lost track of the time and missed the teffilah?  Essentially, says the Nemukei Yosef, we would not categorize him as having negligently skipped davening.  Rather, since, at the end of the day, he lost track of time and forgot to daven, he’s an ahnus and can daven a teffilas tashlumin.

Nevertheless, says the Nemukei Yosef, since Chazal enacted a specific takanah that one not engage in activities of an absorbing nature once the time for davening has arrived (and thirty minutes prior), our conclusion ought to be – when it comes to teffilah – that we do view this individual as having negligently missed teffilah and he cannot make it up.  Since it was forbidden for him to continue his activities – which Chazal indicated can lead to missing davening and thus forbade such activities – he cannot be considered an ahnus, despite the fact that we would generally consider such a scenario to be a bona fide ohnes.

The upshot of this statement is that the Nemukei Yosef holds that, in general, a last-minute ohnes is in fact a bona fide ohnes.  Therefore, in the case of one who made a neder to do something within the year, put it off until the end of the year, and at that point was withheld from doing it (or forgot about it) – he is considered an ahnus according to the Nemukei Yosef.

The Magen Avraham (108:11) points out a seeming discrepancy in the psak halacha of the Ramah.  The Mechaber paskens – without bringing any dissenting opinion – that in the aforementioned case of missing teffilah one can in fact daven a teffilas tashlumin.  Clearly, then, he is paskening like the Nemukei Yosef that a last-minute ohnes is in fact a bona fide ohnes (and he is not concerned with the Nemukei Yosef’s hesitation regarding teffilah in particular).  The Ramah does not object.  He writes no dissenting opinion, thus indicating his tacit approval of this psak.  If so, then why does he bring the opinion of the Agudah when it comes to the halacha of one who made a neder?  The Magen Avraham resolves this by positing that regarding the halachos of shvuos and nedarim – which are more stringent – the Ramah was chosheish for the opinion of the Agudah, but not when it comes to hilchos teffilah.

In general, there are two types of ohnes.  One type pertains to the physical action itself, as in a case of a non-Jew pushing him down in front of an idol.  The other type pertains to daas, as in a case where a non-Jew points a gun at his head and threatens to kill him if he doesn’t do the aveirah.  In that case, the non-Jew is not physically coercing the action, rather he is coercing the decision.  That’s an ohnes pertaining to daas.

In the context of this halacha of someone who pushed off davening to the point where he forgot to daven, the Gra references two other halachos.  One is the halacha of someone who forgot to make an eiruv tavshilin and the other is the halacha of someone who did not manage to complete work before Chol Ha’Moed, the absence of which will cause a loss.

What is the connection?

It is possible that it is along the lines of what we just mentioned.  A Rav is supposed to make an eiruv tavshilin for his whole city, just in case someone forgets.  Even so, only someone who forgot to make one for himself (which is considered an ohnes) can rely on the Rav’s eiruv tavshilin.  If he was plain negligent, though, he cannot rely on the Rav’s eiruv tavshilin.  Davar ha’aveid – work which, if not done, will cause a loss – is only allowed on Chol Ha’Moed if he did not purposely plan to do it then.  In a case of someone who pushed off a certain job for a while – thinking that he’ll for sure manage to get it in before Yomtov begins – and in the end was not able to, is allowed to do it on Chol Ha’Moed.  In both of those cases, it is not an issue of whether or not a certain action should be classified as a halachikally relevant action.  Rather, it is an issue of how we look at the gavra, the person: did he arrive at his current situation as a result of negligence or ohnes.  That is the connection to this halacha of someone who pushed off davening and at the end forgot to daven.  There is no action of not davening.  Rather, it is a question of do we view this individual as having gotten into this situation of missing a teffilah as a result of negligence or ohnes.  And to that we say that since ohnes b’yom acharon is considered an ohnes, he is viewed as having gotten into this situation as a result of an ohnes.  This also explains why the Nemukei Yosef holds that davening is different.  Since the individual did precisely what Chazal said not to do (and the reason is in order that one not forget to daven), it is negligence.  [Ed. Note: It was not clear to me if Rav Twersky meant this explanation as an alternative way of answering the Magen Avraham’s question or if it is a completely independent point].

Regarding the proof of the Agudah, the Ketzos Ha’Choshen (Choshen Mishpat 55) emphatically disagrees.  The Agudah clearly is assuming, says the Ketzos, that the way the sale of batei arei chomah works is that it is a conditional sale.  If the seller does not wind up redeeming it, then the sale is binding.  The condition of the sale is that the seller not redeem it.  That is why the Agudah holds that if the fulfillment of the condition (of the seller not redeeming it) came about through an ohnes, that cannot be considered a proper fulfillment of the condition.  Therefore, the sale is invalid.  From that vantage point, he indeed has a proof from the Mishna in Arachin (about Hillel’s takanah that the seller can put the money in the chamber in the Beis Ha’Mikdash, break down the door of his house, and reoccupy it) that a last-minute ohnes is not an ohnes.  However, avers the Ketzos, his whole assumption is incorrect.  It is not a conditional sale.  Even if the seller would have been bound in chains from the moment he sold the house until the end of the year, the house would still become the permanent possession of the buyer.  The sale is a full-fledged, unconditional sale.  Just what, the Torah gives him a right to nullify the sale by buying it back.  If some ohnes happened to prevent him from exercising that right, it is irrelevant.  Too bad for him, but the sale is binding because it was inherently unconditional.  That being the case, concludes the Ketzos, there is no proof whatsoever from Hillel’s takanah that a last-minute ohnes is not an ohnes, because even if we will consider it an ohnes, it would not matter; the house would nevertheless remain the permanent possession of the buyer.

The Nesivos defends the Agudah, though, based on a Gemara in Arachin (31a) that likens the sale of batei arei chomah to tzad echad b’ribbis.  What is tzad echad b’ribis?  Reuvein loans Shimon $100,000.  The loan is due to be paid at the end of the year.  In the meantime, Reuvein occupies a house that Shimon owns.  The agreed upon terms of the loan is that in the event that Shimon does not repay the loan by the end of the year, the money will be considered payment for the house.  Reuvein will keep the house and Shimon will not have to repay the money.  If Shimon does repay the loan, though, then Reuvein will vacate the house and give it back to Shimon.  If the first option occurs – that Shimon does not wind up paying back the money – there is no ribbis because it retroactively becomes a regular sale.  If the second option occurs, though – that Shimon does wind up repaying the loan and takes his house back – then that is ribbis, because it comes out that, in addition to getting back his full $100,000, Reuvein got an additional year of house-usage rent-free.  That’s tzad echad b’ribbis.  Only one of the two possibilities will result in ribbis.  So batei arei chomah is just like that: if the seller does not redeem his house, it’s just a regular sale; but if he does redeem the house then the “buyer” was really a lender – effectively loaning to the “seller” the money of the “sale” – and, in addition to getting paid back his money, he had a whole stretch of house-occupancy rent-free.  So you see, says the Nesivos, that in the event that the seller redeems his house within the year, the Gemara considers it to be like a loan.  Clearly, then, the Agudah is correct, that the sale of batei arei chomah is not an absolute sale from the get-go; rather, it is indeed a conditional sale and is completely contingent on the seller not redeeming the house.

The Meshoveiv Nesivos addresses this point to defend the Ketzos.  He says that, indeed, the sale of batei arei chomah is indeed conditional, as is clear from that Gemara in Arachin.  But what type of condition?  A condition of al m’nas.  The rule is that a t’nai expressed in the form of al m’nas is as if one said mei’achshav (“from now”).  What that means is that the sale is definite and absolute right from the get-go and is not at all contingent on any condition-fulfillment (even passive).  Yes, there is a condition, but the condition is such that it is “self-fulfilling” – so long as nothing comes along to undo it, it is considered as already done.  That is the way the mechanism of al m’nas/mei’achshav works.  In the event that the seller does redeemed his house, that uproots the fulfillment of the condition (which was inherently in place in and of itself) which in turn uproots the sale and retroactively changes it into a loan.

Another example of this type of mechanism is the following scenario.  A man gives his wife a get on condition (al m’nas) that she not drink wine for one year.  The get takes effect immediately and it is completely permissible for someone else to marry her.  Why?  Because the condition was expressed in a manner that indicates that the get takes effect immediately, just that it is subject to the possibility of retroactive undoing.  As long as she does not drink wine, everything is in place as needs to be and is fine.  If she does wind up drinking wine within that year, she thereby retroactively invalidates the get.

The Ketzos goes one step further and brings a proof against the Agudah.  The Gemara (Kesubos 2b) discusses a case of someone who gave his wife a get before embarking on a journey and said to her that the get is conditional on him not returning within twelve months.  What happened?  At the end of the twelve months, he fell ill and was not able to return.  He was an ahnus.  Technically, says the Gemara, the get should be invalid since his non-return was b’ohnes and should not count; however, there is a special takanah that we do not take ohnsim into account when it comes to such cases in gittin (for reasons that the Gemara discusses there).

Here you have a clear-cut case, says the Ketzos, of an ahnus b’yom acharon and only because of a special takanah by gittin are we not considering it a valid ohnes.  So we see that in general we do consider a last-minute ohnes to be a bonafide ohnes.

Reb Chaim rejects this proof on the following grounds.  The condition of “If I don’t return within twelve months” is not a deadline condition; rather, it is a unit-of-time condition.  In other words, in order for the condition to be fulfilled, it has to be that for the full twelve months he did not return.  As such, if any part of that not-returning during the twelve months was the result of an ohnes, it is not a fulfillment of the condition (and the get would therefore be invalid if not for the special takanah that ein ohnsin b’gittin).  This is like a case of someone giving a get on the condition that he will drink a cup of wine.  He drank half of the cup and then put it down and refused to drink the rest.  Along comes some burly man, forces his mouth open and pours the second of half of the cup of wine down his throat.  Is the get valid?  Of course not!  The condition was for him to drink the whole cup of wine, and half of that condition-fulfillment was b’ohnes and therefore does not count.  That is how Reb Chaim is explaining the condition of “If I don’t return within twelve months” – that the whole twelve-month period is all part of the condition.  Which is not the case, continues Reb Chaim, when it comes to the conditional sale of batei arei chomah.  Over there, it is not that the year is all part of the condition, but it is just a deadline.  The condition for the sale to be permanent is that the seller not exercise his right to redeem the house, and the deadline for that condition is the end of the year.  As long as he did not exercise his right of redemption at any point within the year, the condition is fulfilled.

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