Ki Tetze | Practical Mitzvot

 

 

Rambam writes (Hilkhot Rotze’ach 13:1-2):

 

 

Further elaboration is provided by the Arukh Ha-shulchan (CM 272:8):

 

 

Many people think that this mitzva is dictated by the suffering of the animal that is collapsing under its load, but the question of whether tza’ar ba’alei chayim (the prohibition of causing suffering to animals) is of biblical origin is a matter of debate among the Tanna’im and the commentators (Bava Metzia 32a-33a). It merely arises as a factor in unloading, in addition to the considerations of loading (as explained in the passage). The main reason for the mitzva is, of course, the human suffering involved (see Rambam, ibid. 13:9) and the anguish over financial loss. Rambam deals with these mitzvot in the section dedicated to the laws of homicide and human safety, because a person who finds himself in such a situation may endanger his life through rash decisions and acts. This also explains the conclusion of the Arukh Ha-shulchan that the mitzvot also apply to horse-drawn wagons, and even to a broken wagon-wheel. The Torah is concerned principally for the wagoner, not (or not only) for the horse or donkey. Hence we conclude that the mitzvot of unloading and loading also apply to vehicles that are stuck on the side of the road, not only to a truck that has overturned, scattering its load; it applies also to a flat tire, an overheated engine, an empty gas-tank and many other road troubles.

 

What are the conditions that obligate a driver to stop and help another driver? First and foremost, there is the question of loss and compensation. A passing driver who stops on the side of the road to help loses time; sometimes it is work time, and he may even lose his job.

 

Here lies the difference between unloading and loading. The discussion in the Gemara concludes that the Torah obligates one to help unload for free, but he must be compensated for loading. The Rishonim are divided as to what this means in practice: Rosh asserts that the unloading is undertaken for free only if the person who stops to help is not working at the time; if he is working, he receives partial compensation, as in the case of returning lost property (see CM 265). Loading with compensation, on the other hand, means full compensation, if the owner of the load is willing to pay – but the Torah obligates the passerby to stop and offer to reload for payment. This represents the ruling of the Tur and the Shulchan Arukh (CM 272:6). However, Ran understands the stipulation of unloading for free as meaning completely and unconditionally for free, while loading with repayment is as in the case of returning a lost article, when there is partial repayment if the item is lost. The halakhic authorities rule in accordance with Rosh, but a person who is God-fearing and morally sensitive should conduct himself in accordance with Ran’s understanding. In practice, it seems that the practical obligations are as follows:

 

Members of a group that sets out together on foot or in a vehicle are obligated towards one another. If one of them walks slowly or experiences difficulty with the hike or problems with his car, the others may not simply overtake him and leave him behind. The group must proceed at the speed of its weakest members. A hiking guide or the leading car must stop from time to time and check on the stragglers. (See Me’irat Enayim, CM 272:20, concerning mutual responsibility amongst “a group of people on the way… since they assembled in order to go together.”)

 

If one (or some) of the group is entirely unable to continue, two others must stay behind to help him, along with water, food and some means of communication (when possible). As soon as the rest of the group reaches a place where help may be sought, their first obligation is to take care of evacuating the hikers who are stuck.

 

 

 

In the legal codes of the Ancient Near East[3] we find a categorical obligation to deliver escaped slaves to their masters, and the death sentence is prescribed for anyone who offers them refuge. Thus, this mitzva represents a critical difference between the laws of the Ancient Near East[4] and the Torah, in relation to slavery.

 

It is easy to understand that the institution of slavery can hardly exist in the absence of legal protection for the property of a slave-owner, and this requires that escaped slaves be handed over. Owing to the critical importance of this principle, let us look at some examples taken from laws of the Ancient Near East:

 

 

Common to these various Ancient Near Eastern legal codes are the following elements: the obligation to hand over a slave who has escaped; a harsh punishment for anyone offering him refuge; a fixed reward for returning him; the duty to return a slave to his original master even when a slave is freed from a sale abroad.

 

 

One of the leaders of the radical struggle to eradicate slavery in America was Henry Ward Beecher. His father, too, had been a social activist, especially focused on combatting drunkenness. His sister, Harriet Beecher Stowe, is the famous author of Uncle Tom’s Cabin[12] – a novel that mobilized the general public against slavery more effectively than any political or religious leader.

 

A rereading of the story from a Torah perspective offers some fundamental insights. One pertains directly to the Torah’s prohibition of handing over a slave to his master. It must be remembered that up until the American Civil War, the Missouri Compromise (1851) had established the obligation of handing over any slave who fled from the Southern states to the North. Although the North was against slavery, the Northern states agreed to hand over fugitive slaves because the South could not accept the North as a reliable refuge for escaped slaves.

 

The fear of being handed over occupies a central place in Uncle Tom’s Cabin. The maid who flees with her young child before he can be taken from her for auction endangers her own life several times in her attempts to evade her pursuers, who have been paid in advance to hunt the fugitives – and, especially, the child. The wife of the senator who is fighting to impose harsher punishment on those offering refuge to escaped slaves forces her husband to shelter the woman and her child for a few hours, but he quickly moves them on elsewhere, so as not to be found out. All the temporary shelters offered by kind-hearted individuals and the assistance extended by Quakers are not enough; it is only through subterfuge that the mother and child manage to reach Canada, where slavery had been already outlawed by this time. There the family is reunited and a new life of freedom, work and education begins.

 

The critical differences in Torah law concerning slaves lie in the freedom that a [non-Hebrew] slave earns in the event of grave bodily injury and punishment if a slave dies at his master’s hands (Shemot 21:20-21; 26-27), and – even more so – in the unique prohibition of handing over “a slave who has escaped from his master to you.” These laws have no parallel in any Ancient Near Eastern code, and represent the unique moral position of the Torah on slavery.

 

 

 

The Torah verses setting down the prohibition of interest emphasize the fraternal context: you may not impose interest on “your brother,” on “the poor among you” (Shemot 22:24), while interest is explicitly permitted when non-Jews are concerned. This indicates that interest is not an absolute moral prohibition, like theft, but rather a special kindness or consideration shown to Jews, by virtue of the Exodus. This distinction is of critical importance in the modern economic world, when a “heter iska” becomes a necessity in order to work with banks and credit companies. However, no such license can be extended to individuals, as the Torah prohibits interest on the private level.

 

Let us first review the relevant verses from Sefer Shemot and Sefer Vayikra:

 

 

 

Rambam (Hilkhot Malveh 4:7) rules, following Bava Metzia 61b:

 

 

Ramban, in his commentary on Devarim 23:20, explains:

 

 

This is the biblical point of departure for the modern halakhic discussion of the heter iska used by banks and credit companies. Several points should be emphasized in this regard:

 

Firstly, a bank does not fall under the definition of “your brother” when tzedaka is concerned. The prohibitions on interest are defined explicitly by Ramban as applications of tzedaka, applying only among Jew by virtue of the Exodus from Egypt, there is no universal moral prohibition attached to the idea of charging interest, and therefore these prohibitions do not apply when money is lent to non-Jews.

 

This indicates the clear connection between Halakha and morality, specifically in relation to interest. Every Jew is obligated in matters of tzedaka and is prohibited from charging interest by virtue of the Exodus; therefore, any interest-bearing transaction carried out between Jews is considered a denial of the Exodus. However, the directorate of a bank cannot treat bank capital as charity (although there are legitimate expenses involved in advertising and public relations). In this regard a bank is different from a kibbutz, or even from a regular for-profit company.

 

A bank operates according to global economic logic, in accordance with rules and principles which cannot distinguish between Jews and non-Jews. Therefore, a bank’s capital is not considered “your money,” but rather “the money of others,” to borrow Chazal’s term from Torat Kohanim on Parashat Behar (76). We must also consider the probability that the shareholders include non-Jews, and all of this collectively offers a strong basis for the heter iska.

 

A second point is that a bank, as a limited company, is not considered a known owner. The shareholders, who own the bank’s assets, are not personally obligated in any regard concerning the bank. Therefore, when a bank extends a loan there is no concrete lender, nor any concrete borrower of money deposited.

 

This diminishes the claim of absolute responsibility to repay loans as raised by the halakhic authorities (Responsa Maharsham I, ch. 20) as a reason for the prohibition. Other major halakhic authorities have depicted bank activity as being similar to a community in which there are no known (i.e., defined) owners. Rav Moshe Feinstein agrees with this characterization with regard to banks (Iggerot Moshe, YD II 63), but finds no solution for actual individuals who take loans from the bank – i.e., bank clients.

 

However, the fact that a bank is a limited company is not sufficient grounds to assert that the prohibition against interest does not apply, because the clients are defined, known people, and – if we are speaking of an Israeli bank – mostly Jewish. Nonetheless, major halakhic authorities have noted certain other characteristics which collectively offer grounds for leniency when it comes to banks and credit companies.

 

One such argument is that a bank lien is a virtual one – unlike the personal lien that is at the heart of the prohibitions on interest in the Torah.[14] In the words of the Gaon of Rogachev, a bank lien is one of “form rather than content,” and therefore the Torah’s prohibitions on interest do not apply. He therefore permits a bank to charge and pay interest (Responsa Tzafenat Pane’ach 184).

 

Other halakhic authorities (such as Maharsham, ibid.) disagree with the Gaon of Rogachev and others who are inclined to permit bank interest for similar reasons (such as, for example, Responsa Maharia Ha-Levi Ettinger, 2:54), because some real lien remains. However, the opinions of those who permit bank interest support the assertion that in any event banks are not biblically prohibited, and the heter iska is a legitimate response to Chazal’s extension of the prohibition.

 

According to the above analysis it is not hard to resolve the difficulty raised by Rav Moshe Feinstein (ibid.) concerning borrowers (bank clients) whose responsibility is not limited and who are known owners; in his view, the borrowers violate the prohibition even if the bank, which lends the money, is not in violation. The resolution lies in the fact that the biblical source for the prohibition applying to the lender is the verse “But to your brother you shall not charge interest” (Devarim 23:20; Rambam, Hilkhot Malveh 4:2). However, a bank is not “your brother,” such that the lender is not receiving interest from his brother.

 

All opinions agree that anyone who is not involved in the loan does not violate the prohibition of “You shall not place a stumbling block before the blind”, since the bank has a heter iska and relies on it.

 

Rav Shlomo Zalman Auerbach opposes a heter iska which is based on the idea that a bank is not a known owner. He pointed out that while an aris (sharecropper) is not an owner, the laws of interest nevertheless apply to him (Responsa Minchat Shelomo 1:28). However, this point, too, is easily resolved, since an aris who is Jewish falls under the category of “your brother,” while a bank does not.

 

Clearly, the license for banks to deal in interest is dependent on the heter iska that is universally used, but the halakhic basis for the heter rests upon the fact that strictly speaking, the biblical prohibitions on interest do not apply to banks and credit companies. The heter iska does not in any way cancel the grave prohibition set down in the Torah; rather, it responds to Chazal’s extension of this prohibition. This is why Jewish society relies on the heter iska – justifiably – as a matter of routine.

 

Hence, loans governed by the heter iska should be permitted only for banks and credit companies; they are under no circumstances permissible for individuals, who are bound by the biblical prohibition which cannot be cancelled by any heter. Among individuals, all the biblical prohibitions on interest apply according to the letter of the law. Every Jew who is able to give charity should extend interest-free loans to one or two needy individuals, with repayments set in accordance with the recipients’ ability. This then shall be considered tzedaka on his part.

 

Translated by Kaeren Fish