Alei Etzion 16: Kofin Al Middat Sedom: Compulsory Altruism?

  • Harav Aharon Lichtenstein

 

I. Introduction

Throughout the generations, the city of Sedom has symbolized ultimate evil and destruction. This is the way Sedom is presented in the words of the Prophets, and in later periods the description of its nature and fate has been further broadened. This general meaning has become crystallized in the expression “middat Sedom,” behavior characteristic of Sedom: a shocking and frightening trait. In the framework of Halakha, however, this term acquires a narrower connotation, as is the tendency of legal definitions. On the other hand, the term has been expanded from a concept that relates exclusively to the wicked of the world to a factor that is connected to the life of every individual. This article will deal with the definition of the term in its halakhic formulation, and primarily with the clarification of a specific law connected to it: “Kofin al middat Sedom,” “We compel one who acts in the manner of Sedom” (or, more loosely, “We compel one not to act in the manner of Sedom”).

 

            At the outset we will briefly present the Talmudic sources that explicitly deal with kofin al middat Sedom. This idea is mentioned in five places. In two of them, the Gemara brings it as the foundation of some unclear dispute: the one, a dispute among Tanna’im whether a court record known as a shtar beirurin can be written separately for each litigant, or whether they must share one copy;[1] the second, a dispute among Amora’im whether a person may prevent his neighbor from opening a window facing into his courtyard, even if the window is higher than four cubits, so that there is no concern about hezzek re’iyya (damage caused by exposure to the public).[2] In both cases the Gemara concludes that “all agree that we compel one who acts in the manner of Sedom,” but there is disagreement about whether these cases fall into the category of middat Sedom.

 

In two other places, the concept is mentioned almost incidentally in connection with specific laws. In one place, it relates to issues of merging domains on Shabbat to allow carrying between them.  In this case, in the interests of the greatest good for the greatest number of people, the residents of a courtyard situated between two alleyways are forced “to utilize the less-frequently-used alleyway, for in such a case, kofin al middat Sedom.”[3]  In the second place, which is closer to the matter at hand – civil law – the Gemara relates the case of one who leases his mill to another, and they agree that the lessee pays by providing the service of grinding the lessor’s grain for free. If the lessor purchases another mill and then asks that in the future the lessee pay for his lease in cash, what is the law?  Following a short discussion, the Gemara concludes that the lessee can refuse – but with one limitation: “This, however, only applies in a case where [the lessee] has no [other orders for] grinding at his mill.” Rashi explains, “Therefore he can say: ‘Inasmuch as I am sitting idle, I would rather mill for you and not pay in cash.’”  The Gemara concludes: “But if he has [sufficient orders for] grinding at his mill, in such a case, kofin oto al middat Sedom.”[4]

 

A concentrated discussion of the topic is found in a passage dealing with the division of joint property, where this compulsion is the subject of a dispute among Amora’im. Three cases are discussed in that passage,[5] but all three branch out from one general problem: when a person possesses a field of his own adjacent to jointly-owned property, can he demand the portion of that property that borders on his own field? In explaining the details of the passage, however, the Rishonim pave diverse paths; we shall attempt below to understand the various positions.[6]

II. “Mine is Mine, and Yours is Yours”

As descriptions of isolated cases or laws, these sources give the appearance of being unimportant tidbits. They do, however, reflect a common foundation that has ramifications for many remotely connected matters; and from this perspective they have an entirely different nature. The fundamental axis is not so much the matter of the compulsion, but rather the definition of middat Sedom in and of itself. In the aforementioned passages, we do not find an explicit definition; to the best of my knowledge, there is also no other Talmudic source that describes this trait in abstract and universal terms. The content of the concept itself, however, as it follows from the aforementioned sources, is, generally speaking, sufficiently clear: the practice of evil against, and even the denial of good towards, one’s fellow, that does not stem from excessive egotism – this already would be an improvement, though it constitutes a problem of its own – but from indifference to his situation. Borrowing a formulation that the Rabbis used in other areas, we might say that middat Sedom is doing evil in a spirit of defiance (lehakhis), rather than to satisfy one’s appetite (le-te’avon), in accordance with those who maintain that “one who does not care” falls into the category of lehakhis.[7]  This concept and this reality have very broad significance.

 

Leading Rishonim stress this aspect and some reformulate it with the expression found in a famous passage (Bava Kama 20b): “Zeh neheneh ve-zeh lo chaser,” “This one benefits, and this one suffers no loss.”[8] (The same gemara also discusses the parallel case of “zeh neheneh ve-zeh chaser,” “this one benefits, and this one suffers a loss.”) Indeed, if we need a precise and comprehensive definition, we will discover that it is the subject of controversy – and not just one controversy, but multiple controversies. The first is found in the only mishna that explicitly mentions middat Sedom among its classification of human attributes: “He who says: ‘Mine is mine, and yours is yours’ is an average character; some say (yesh omerim) that this is middat Sedom.”[9] This, of course, is not a formal definition, but merely a judgment and assessment of a particular detail. Clearly, however, this judgment sheds light on the parameters of the trait in general. We must still, however, consider three interwoven questions: 1) What is the mishna dealing with? 2) On what point do the Tanna’im disagree? 3) How does this mishna relate to the issue of kofin al middat Sedom?

 

When we examine the explanations offered by the Rishonim, we see that they adopt various approaches. On the one hand, Rabbeinu Yona emphasizes that the mishna is dealing with a spiritual quality, rather than an action or its absence. The mishna is not referring to one who refrains from giving charity, for such a person is

 

a totally wicked man… Rather, here we are dealing with a person who gives charity out of the fear of God, though by nature, he is miserly. Therefore, since he supports the poor and needy, what should one care about his nature?  The quality itself is average. However, the yesh omerim hold that it is middat Sedom, and that its root is exceedingly evil, since by nature he is miserly.[10]

 

According to this, the mishna discusses the degree of importance that must be attached to objective and subjective factors as the determining factors of ethics – though from a halakhic perspective, one must consider both of them, that is, the source of the action and its result. Following this approach, it is necessary to distinguish between the middat Sedom discussed in the Mishna and that which is mentioned in the Gemara in connection with compulsion. Despite the importance of the heart’s intentions in Halakha in general and in connection with the mitzva of giving charity in particular,[11] the courts will clearly not compel “one who gives charity out of the fear of God, but by nature is miserly,” to do so out of joy.[12]

 

This distinction follows also from a comment of Rabbi Shimon ben Tzemach, the Tashbetzthough in an entirely different form. First, according to him, “This mishna does not deal with the trait of charity; it is in the other mishna (5:13) where we learn that there are four types of charitable donors. This mishna speaks of the acts of kindness that well-to-do householders perform for each other.” Second, in accordance with his general position that “there is no disagreement in this tractate (Avot),” the Tashbetz suggests that there is no fundamental disagreement between the two positions, as the second position is not dealing with real middat Sedom: “…the first Tanna maintains that a person of average character is permitted to maintain that character;” and thus, “the [second] Tanna comes only to add that this character involves evil that is close to middat Sedom… He who never provides his fellow with benefaction, if this quality grows in him, will come to withhold benefaction from another person even in that which causes him no loss… This is middat Sedom… About this quality, the Sages said: ‘Kofin al middat Sedom.’ ”[13]  He seems to understand that the definition of the trait is, in the sense of the Talmudic passages, zeh neheneh ve-zeh lo chaser.  However, the case of “one who says: ‘Mine is mine, and yours is yours’ ” is not included in this definition, for here he would suffer a loss if he would give to others. The mishna is dealing exclusively with a sort of protective measure – a decree regarding a case of zeh neheneh ve-zeh chaser because of  the slippery slope to withholding benefit even when zeh neheneh ve-zeh lo chaser.

 

As opposed to Rabbeinu Yona and the Tashbetz, several Rishonim are inclined to identify the middat Sedom mentioned in the mishna with the subject of the Talmudic passages. This identification is explicitly suggested by Rabbeinu Bachya ben Asher. In the course of his explanation of the former, Rabbeinu Bachya refers also to the latter: “Therefore, our Rabbis, of blessed memory, saw fit and ruled that we compel one who exhibits the trait of Sedom; zeh neheneh ve-zeh lo chaser – this is middat Sedom.[14] This identification also follows from the words of Rashi. In his commentary to the passage in Eiruvin, Rashi explains: “Middat Sedom – that even when he suffers no loss, he does not benefit his fellow;” in his next comment, he adds: “Middat Sedom – ‘Mine is mine.’ ”[15]  Thus, we see a three-fold connection – between the mishna in Avot, the Talmudic passage dealing with the principle of zeh neheneh ve-zeh lo chaser and the law of kofin al middat Sedom.

 

It would seem to follow then that the Tanna’im disagree about the principle of zeh neheneh ve-zeh lo chaser.  Some Rishonim, however, appear to be unprepared to accept this conclusion; therefore, they are forced to explain that there is no disagreement whatsoever in the mishna. In one form, we find this in the commentary of Rabbeinu Bachya: “The first Tanna calls this ‘average character’ only because he is innocent of theft and doesn’t covet his fellow’s property; but if others do not derive benefit from his property, it is certainly an evil trait in his soul, and this is middat Sedom.”[16]  The Me’iri indeed sees the two designations as contradictory, but he argues that they do not relate to the same circumstance. The yesh omerim are dealing with an actual case of zeh neheneh ve-zeh lo chaser, “but [in] the first case, were he to benefit [his fellow], he or his property would suffer a slight loss, even though the other person would make his own property available in similar circumstances. Such withholding, since there is a loss, is not middat Sedom, for he does not want to cause a loss to others or to be caused a loss by others.”[17]

 

If, however, we assume, as do other Rishonim, and as is implied by the plain sense of the mishna, that it reflects a real difference of opinion, then it turns out that the law of zeh neheneh ve-zeh lo chaser is the subject of controversy. From a purely interpretive perspective, it is possible to understand that the first Tanna denies the very concept. From a moral perspective, however, this explanation is exceedingly difficult. Is it possible that one of the Tanna’im – and one whose position is presented anonymously – would make peace with a person withholding something that causes him no damage but could benefit another? Is there a hardening of the heart greater than the refusal to extend help to another person, in a case where the helper would not suffer any loss, neither to his person nor to his property? By what moral standard can insensitivity of this sort, and even worse than this, be referred to as “average character”?

 

Anyone who is sensitive to the values of the Sages and connected to their ways of thinking is forced, then, to adopt a different approach. Indeed when we carefully examine the wording of the mishna, we see that a distinction can be made – even according to Rashi and Rabbeinu Gershom – between the mishna and the Talmudic passages. Withholding benefit from one’s fellow without accruing any advantage to oneself is possible in two ways. The first is embodied in a specific and particular case, in which the determining facts are clear: a person moves to a new apartment and throws the extra set of keys to his old apartment into the sewer, rather than passing them on to the next tenant; a person has tickets to a series of cultural events and, while he cannot take full advantage of them, refuses to give the unused tickets to another person. In such cases, we unquestionably are dealing with middat Sedom.

 

The mishna, however, is not dealing with this type of zeh neheneh ve-zeh lo chaser.  Rather, the mishna is dealing with a personality trait, or to put it differently, a way of life. The withholding of benefit from one’s fellow does not take place in a narrow framework where the injustice is blatant. It is rooted in one’s general conduct and approach – and especially in an exaggerated emphasis on privacy and a distorted idea of ownership. A person who shuts himself in his four cubits, who denies, and perhaps even loathes, sharing and partnership; who agrees to open his hand to the unfortunate, but not to extend it to his neighbor; who knows and recognizes that his position reduces his own pleasure and the pleasure of his fellow, but is ready, for the sake of his personal independence, to place the burden on the two of them – it is about such a person that the Tanna’im disagree. The result of such an approach – and almost certainly its proponent fully understands this truth – is a quantitative, and perhaps even qualitative reduction in the enjoyment derived by society as a whole from the totality of its assets. In this point, the Rishonim saw a connection between our mishna and the passage dealing with kofin al middat Sedom, but the means of this reduction are entirely different.

 

In the mishna, the emphasis is not on direct refusal but on missing an opportunity. Withholding benefit from one’s fellow stems from a loathing of exchanging favors and productive sharing, and not from a specific hardening of the heart. Therefore, here, regarding excessive privacy that causes a reduction of benefit to one’s fellow, without achieving any benefit for one’s own person – there is room for a dispute among Tanna’im. Despite the saddening results, the first Tanna sees this quality – narrow-minded but not malicious, rooted in egocentricity, but not evil – as average character. By contrast, the yesh omerim maintain that in the end we are dealing with indifference toward one’s fellow, even where the person himself loses nothing.[18]

 

If one would wish to claim that the position of “Mine is mine” is rooted purely in the yearning for additional privacy – “your guarantor needs a guarantor,” as the proverb goes (Gittin 28b). Who can assure us that this yearning itself does not involve middat Sedom?[19]  The fact that the position of “Mine is mine” fills a subjective longing does not clear up the doubt as to whether this is defined as a situation involving loss on the part of the giver – for we must not see the negation of every longing as a loss. In defining “loss,” the arbitrariness of a person’s heart is not the only determining factor. We must consider also the moral-ideal perspective to decide what disappointment should rightfully be regarded as a “loss.” Even if the withholding of good from one’s fellow is rooted in the desire to maintain a certain emotional identity, without any intention to cause harm, is it not possible that this approach itself involves middat Sedom?

 

The basis for this distinction is the unmediated nature of the injustice – is it clear and specific, or is it only the general, and sometimes even indirect, result of an overall way of life? However, we may also suggest a second distinction connected to the definition of “loss.” This may be understood though a brief review of the Talmudic passages cited above. Three of them suggest, as fact or as a possibility, that there exists a dispute regarding compulsion. In two – which deal with the merging of domains and the leasing of the mill – the rule of kofin al middat Sedom is stated definitively. How is this disagreement between the sugyot to be understood?

 

The answer seems to be rooted in a difference between the cases. In the last two cases, the one who benefits does not actually use the other person’s property. The Eiruvin passage discusses attributing the courtyard, on the theoretical level, to one alleyway or the other. In the Ketubbot passage, the one who benefits encroaches upon the other person, demanding money instead of the service of milling, but even there he does not actually enter his domain. The relationship of ownership of an article as an article – not in the exclusively legal sense, but in the sense of a personal and emotional connection – does not exist with respect to money. Money is meant to be spent; its value is symbolic and not intrinsic. A person has nothing in money – unless he is a miser or a coin collector – other than its purchasing power.[20] Therefore, as long as the owner of the mill does not suffer a monetary loss, he does not suffer any loss.

 

In the three other cases, on the other hand, the benefit involves the use of the other person’s property. Thus, it involves taking control of that property and the person himself. It might be argued that such a situation can be regarded as a case where zeh neheneh ve-zeh chaser: there is no monetary loss, but an emotional loss is certainly present. Thus, there is room for disagreement. In one form, and in connection with compulsion, we encounter this phenomenon in three of the Talmudic passages. In another form, and in connection with the definition of middat Sedom itself, we see it in the mishna. The Tanna’im do not disagree whether zeh neheneh ve-zeh lo chaser is middat Sedom. They do, however, disagree whether the negation of “Mine is mine” is a loss.

 

As for the relationship between the three passages and the mishna, this too does not constitute a problem. The emotional loss that stems from the constriction of absolute domination lends itself to gradation. It is possible – and we cannot prove this one way or the other – that it is not as severe in the three Talmudic passages as in the mishna. Joint possession of a shtar beirurin, for example, is one level. A neighbor’s use of his fellow’s property is a different level. Therefore, even if we define the middat Sedom in both cases as “Mine is mine, and yours is yours,” there is no need to identify the Talmudic passages with the mishna, or to assume that they can be reconciled only with the position of the yesh omerim.

III. The Definition of “This One Suffers No Loss”

            Thus far we have seen three types of middat Sedom: 1) failure to give charity or perform acts of chesed; 2) an overall lifestyle that places inordinate emphasis on privacy, and thus reduces the benefit that one person derives from another and the development of society as a whole; 3) a clear and specific case of one person refusing to confer benefit upon another person even when that benefit would not cost the first person anything. The last type of middat Sedom divides into two: a) a case where the second party, who would derive benefit, would use the first party’s property; b) a case where the second party would benefit, but without taking hold of the first party’s property. In order to complete the definition of this quality, however, we must reexamine the last of the aforementioned Talmudic passages – the one that deals with the division of jointly-owned property. Let us first present the passage (Bava Batra 12b) in full:

A certain man bought a field adjacent to the estate of his father. When they came to divide the latter’s estate, he said: “Give me my share next to my own field.” Rabba said: “In such a case, kofin al middat Sedom.” Rav Yosef strongly objected to this, on the grounds that the brothers can say to him: “We value this field like those [prime fields] of Bar Maryon.”[21] The law follows Rav Yosef.

If there are two fields with two channels [running by them, and when the owner dies, one of his sons requests the field adjacent to his own], Rabba said: “In such a case, kofin al middat Sedom.”  Rav Yosef strongly objected to this, on the grounds that sometimes one channel may continue running while the other dries up. The law follows Rav Yosef.

If, however, there are two fields adjoining one channel [and they are therefore of equal value], Rav Yosef said, “In such a case, kofin al middat Sedom.”  Abbayyei objected to this strongly, on the grounds that the one can say: “I want you to have more tenant farmers” [i.e., one brother can object that he wants the other brother to possess two non-adjacent fields, so that the large number of tenant farmers on the two fields will protect his own field in the middle]. The law, however, follows Rav Yosef; the increase in the number of tenant farmers is not a matter of consequence.

            The issues in dispute in the three controversies cited here are, generally speaking, quite clear. It is also clear that Rabba, Rav Yosef and Abbayyei all accept the principle that kofin al middat Sedom; they disagree only about its precise parameters. As for the particulars (and primarily with respect to the first dispute), the Rishonim disagree. Their explanations of the passage – both the assumptions in light of which they approach it, as well as the conclusions that they derive from it – teach us fundamental principles regarding the matter at hand.

 

            The first dispute – whether we compel the other heirs to give their brother who owns the adjacent field his portion of the estate from the property abutting his field – immediately raises a difficulty, as the Ritva comments:

 

It may be asked: what case are we discussing? If the portions are absolutely equal, regarding land of the highest quality and land of intermediate quality, Rabba said well that it is middat Sedom; and if they are not equal, Rav Yosef said well, even when the abutting portion that he requests is land of the poorest quality, for there are those who prefer a large parcel of land of the poorest quality over a small parcel of land of the highest quality.[22]

 

We find that earlier Rishonim, each in his own way, accept one of these two possibilities.  The Ri Migash[23] understands the passage as referring to a case where the fields are not equal, and therefore he rules – as does, in his wake, the Rambam[24] – that when the fields are of equal quality, we do indeed compel the brothers. This is true despite the fact that the Gemara rules explicitly in accordance with the position of Rav Yosef. If we accept this approach, the parameters of middat Sedom expand greatly, according to Rabba. Though by right the brothers may have just claims regarding the quality of the fields they are to receive, they must ignore these claims for the good of the brother who owns the neighboring field, and we compel them to do so. Even though their situation is impaired, though we are not dealing with a financial loss in the bookkeeping sense, Rabba still views the case as one of zeh neheneh ve-zeh lo chaser.  “For since he gave them the additional value in that portion over the other portions, why should they care?”[25]  It is on this point – and on this point alone – that Rav Yosef disagrees, and the law is decided in his favor.

 

            Rashi also notes the confusion in our passage. He understands that in a case of real equality, Rav Yosef would deny the argument of “We value this field like those of Bar Maryon.” Regarding the case of inequality, however, Rashi followed an entirely different path: “It stands to reason that Rav Yosef is talking about a case of a sedeh ba’al, about which they can say that sometimes it receives greater blessing than the other fields.”[26] In other words, when the fields are really equal, and this situation is expected to continue in the future, all agree that we compel the other heirs to give the brother who owns the neighboring field his share of the estate adjacent to his field. So, too, Rav Yosef agrees about the case of “two fields adjoining one channel.”  Perforce, then, the disagreement revolves around the definition of equality”: what is the law governing articles that currently are equal in value, but are liable, whether by nature or habit, and not only as a result of extraordinary circumstances, to change in value in the future?  It is for this reason that Rabbeinu Yo’el and the Maharam of Rothenburg[27] rely on Rashi when they say that in the case of houses, which are less likely to change in value, we do indeed compel the others.

 

            In contrast to the approaches of the Ri Migash and Rashi, Rabbeinu Tam interpreted the passage as referring to a case where the fields are truly equal in value. According to him, the argument that “We value this field like those of Bar Maryon” requires no justification. It constitutes clear and absolute refusal: “We will only give you the right that we have in the field in exchange for a high price, like the sons of Maryon who were wealthy and would only sell their property in exchange for a high price.”[28] Already the Ritva noted that according to this understanding, it is the position of Rav Yosef that requires explanation; and the Rishonim offer two ways of understanding Rav Yosef’s position. 

 

First, we can view the division of the estate as a sort of transfer of ownership, regarding which there is no room for compulsion. “Where do we find,” asks Rabbeinu Yona in the context of a later passage, “that a person can take property belonging to his fellow, and exchange it for his own without his fellow’s consent, on the grounds that zeh neheneh ve-zeh lo chaser? Furthermore, in the first chapter we also say: ‘We value this field like those of Bar Maryon.’ ”[29] “In this case, there is no middat Sedom,” writes the Rosh in explanation of Rabbeinu Tam, “for we have a right in this lottery [to determine who gets what portion], so that if it falls to us in the lottery between the two fields, it is our right not to exchange it if not at a high price. Now, too, there is no middat Sedom if we do not give up our portion for you.”[30]

 

            The Ritva suggests an entirely different explanation: “Some say that they disagree even when the portions are equal, for when they are unequal, Rav Yosef said well. Here Rav Yosef’s argument is that this is [a case of] zeh neheneh ve-zeh chaser.  For the brothers can say to him that if that portion falls to us in the lottery, it is worth more to us than the other portions, because you will buy it from us at a high price. Since we will benefit if we divide it in accordance with Torah law, you have no right to cancel the lottery.”[31]  According to this approach, the reason for not applying kofin is not that a person cannot be compelled to perform a transaction, but that the necessary conditions for such compulsion are not met here. While at the initial stage there existed a situation of zeh neheneh ve-zeh lo chaser, since the brother with the neighboring property is ready to pay money to receive the portion adjacent to his property, his brother would suffer a loss if he gave it to him for free.

 

There is a fundamental difference between these two understandings. According to the first explanation, Rabba and Rav Yosef agree that middat Sedom is present in the argument that “We value this field like those of Bar Maryon.” Their disagreement – whether we relate it to the scope of the compulsion or connect it to the nature of the division of an estate – is limited to the issue of compulsion. On the other hand, according to the Ritva, since the brothers are regarded as suffering a loss, the argument that “We value this field like those of Bar Maryon” is not regarded as an example of middat Sedom. Here, however, his explanation encounters a severe difficulty, which is already noted by the Rosh in one of his responsa. According to Rav Yosef,

 

In every case of zeh neheneh ve-zeh lo chaser in which we compel one who exhibits middat Sedom, why do we compel him?  Surely he suffers the loss of the money that the other person would give him for his benefit, were we not to compel him to do it for free!  Rather, certainly, since he has no loss other than the money which he could force the other person to give him for his benefit, this is middat Sedom.[32]

 

The entire law of kofin al middat Sedom is based on the assumption that the forfeiture of money that the benefiting party would have been willing to pay for his benefit is not regarded as a loss. If we define the owner’s loss in light of the mutual relations with the party receiving the benefit, we just about wipe out this type of compulsion.

 

According to Rabbeinu Tam, we are forced to distinguish between two situations of zeh lo chaser.  Kofin al middat Sedom applies in the case where the benefiting party does not derive benefit that could be the object of negotiation (such as rental, sale, or the like) were the problem of the value of that benefit to arise. In such cases – which are discussed in the other passages – refusal to confer benefit involves injustice, monetary claims, and exploitation, as there is no transaction for which payment could be demanded. If, however, negotiations are conducted, and the problem that presents itself is the assessment of the benefit, the owner can assess it in accordance with what the party receiving the benefit would be willing to pay for it, and not according to what others, who do not share his special interests, would be willing to offer. According to the Rosh, the value is established in relation to the general social framework;[33] and if the owners do not suffer a loss, we compel them to provide the benefiting party the addition that exists only for him but not for others, or the benefit that would accrue to them in his absence. According to Rabbeinu Tam, even Rabba agrees to this. According to Rav Yosef, however, the owner is permitted to take into account the unique situation and will of the benefiting party when defining the value. This does not involve robbery or exploitation, but a simple assessment of value.[34]

 

In this passage,[35] then, we see four fundamental concepts of “loss”:

1)a quantitative bookkeeping loss (Rabba, according to the Rambam);

2)diminished quality of the property (Rav Yosef, according to the Rambam; all opinions, according to most of the Rishonim);

3)concern about a change of value in the future (Rabba, according to Rashi); and

4)loss of the unique additional value to the party deriving the benefit (Rav Yosef, according to Rabbeinu Tam).

It follows, of course, that we have also raised thereby the number of definitions of middat Sedom.

 

However, the most radical definition of middat Sedom, appears, according to some Rishonim, in a framework that makes no mention whatsoever of middat Sedom: the passage in Bava Kama that deals directly and explicitly with the principle of zeh neheneh ve-zeh lo chaser. That passage does not discuss personality traits or prohibitions, but rather obligations. If a person, who would otherwise rent living quarters, lives without the owner’s knowledge in a house that is not up for rent – must he pay him rent? The final decision is that he is exempt,[36] but this ruling relates only to the situation after the fact (be-di’avad). Nevertheless, the question still remains whether a person is permitted to squat in another person’s house despite the owner’s objections, or may the owner prevent him from so doing?[37]  Tosafot (ad loc.) assume as obvious that “even according to the one who says in the first chapter of Bava Kama that kofin al middat Sedom and that we give him the portion that is adjacent to his property … he can prevent him from the outset from living in his house.”[38]  However, the Tosafists disagree on the matter. The Or Zarua cites two opinions:

 

Some say that we compel the owner to allow the other person to live there. Since it is not up for rent, in such a case, kofin al middat Sedom, as we say in Bava Batra regarding the case of the two fields with a single channel…

Others say that it is different there, because even had he taken the field abutting the field that the other one bought, he would not have gained anything, because they are equal. Even had he wanted to profit, he would have been unable to do so; in such a case, therefore, kofin al middat Sedom. However, here, had the owner wanted to rent it out to someone else, he would have profited; now that he does not rent it out, we do not compel him [to let the squatter reside there for free].[39]

 

We see, then, that according to one opinion, preventing a person from living in a house that is not up for rent is included in middat Sedom, and that as long as the house is standing empty, anybody can harness the power of the court to allow him to live there, even against the owner’s wishes.

 

Furthermore, to a certain degree, it is possible that this is not a sole dissident opinion, and that perhaps even Tosafot might agree in part. Their position lends itself to two understandings. The one – and this is in accordance with the suggestion made earlier regarding the mishna in Avot – says that preventing others from using one’s property does not constitute middat Sedom. While with respect to an obligation of payment, “loss” requires a real monetary loss, in the moral dimension we must consider several other types of loss as well. This being the case, the owner must not be condemned as exhibiting middat Sedom, unless all these losses are absent, psychological no less than monetary. This formulation follows almost explicitly from the words of Rav Aharon Ha-levi (the Ra’a):

 

Even though in general we maintain that in a case of zeh neheneh ve-zeh lo chaser, the rule of kofin al middat Sedom is enforced, that applies to land belonging to the two of them where he is not using the other person’s property at all, but he can compel him by law not to do it… But to use the other person’s property they never said this, for otherwise there is no person who will not compel his fellow against his will.[40] 

 

The Or Zarua’s wording, however – “Here, had the owner wanted to rent it out to someone else, he would have profited; now that he does not rent it out, we do not compel him” – implies an entirely different understanding. This explanation is based on the assumption that it is in the hands of the owner – who has both the ability and the authority – to turn the house into one that is “up for rent,” in such a manner that he himself would then be regarded as suffering a loss. Therefore, even if the state of the house remains the same, we still cannot compel the owner, because he is not bound by an absolute obligation to allow someone else to live there for free.

 

According to this, it is plainly evident that the distinction between le-khatechilla (ab initio) and be-di’avad relates only to the possibility of compulsion. As for the definition of middat Sedom in and of itself, as long as there is no real change in the status of house, preventing another person from living there from the outset is also included in this category. As long as the house is not up for rent, and the owner is not suffering a loss, the injustice exists. Thus, it is possible that even Tosafot cast upon us a difficult moral obligation, for even they may agree that anyone who prevents another person from living in his house when he does not need it and the house is not up for rent is guilty of middat Sedom.[41]

 

This position is of special importance, because as it would appear, the Rema accepts it as normative law. In his gloss on Rav Yosef Karo’s ruling that “one who lives in another person’s courtyard without his knowledge… is not obligated to pay him rent,” the Rema comments:

 

This is only if he has already lived there, but he cannot compel him from the outset to allow him to live there, even though kofin al middat Sedom when zeh neheneh ve-zeh lo chaser. For this applies only in a case where had the owner wished to derive benefit, he would have been unable to do so. But in a case where the owner would have been able to derive benefit and rent out his courtyard, only he does not want to, we do not compel him to do it for free.[42]  

 

The meaning is clear: if a person cannot rent out his property or derive any benefit from it, another person can use it le-khatechilla, even against the owner’s wishes.[43]

 

It seems, then, that the allowance to use another person’s property continues to broaden. It is possible, however, that the scope of the Rema’s ruling must be narrowed in light of a famous law that appears to contradict it: one who borrows an article without the owner’s knowledge is regarded as a thief.[44]  Several possible resolutions of the contradiction may be proposed.

 

1) The scope of the Or Zarua’s ruling need not be constricted. The law regarding one who borrows without the owner’s knowledge applies only when the owner could have derived benefit from the property or rented it out at the same time that the other person had been using it. If the owner could not have benefited from his property, then the borrower took nothing from him and cannot be called a thief. On the contrary, the owner is bound by an obligation to allow the other person to use it; and even if the latter used it without permission, it is as if he took that which was due him, so that it is not thievery.[45]

 

2) The allowance to use the other person’s property stems from the principle of kofin al middat Sedom. Therefore, it applies only by way of compulsion – namely, through the court. There is no room here for executing judgment independent of the court; anyone who uses his fellow’s property without permission is regarded as a thief.

 

3) The Gemara does not say that borrowing “without the owner’s knowledge” involves a violation of the prohibition of stealing. The Talmudic passages all discuss the manner of restoration and the obligations that devolve upon one who borrows without permission if the article is broken or lost. Thus, the term “thief” may be imprecise, and is only used by extension in the sense of maximal responsibility. According to the position that a borrower without permission is a “borrower,” he enjoys the exemptions granted to a borrower – when the owner is with him or in a case where the animal dies of its labor – and according to the position that he is a thief, he is obligated in all cases. In fact, if he does not cause the owner any loss, there is no violation of the prohibition of stealing.[46]

 

4) The Ramban argues that the law that states that one who borrows without the owner’s permission is a thief only applies when “the use that he makes of it involves damage to the owner’s property, and even though it does not suffer a loss through his use, it is possible that when he moves it, it will break or suffer other damage.”  On the other hand, concerning “something that cannot suffer damage when moved, there is nobody who says that one who borrows without the owner’s knowledge is a thief, for he has done nothing.”[47] Even those who disagree with the Ramban[48] would presumably agree that a distinction can be made between movables, which are at risk of being stolen even when they are not liable to suffer breakage, and real estate. The Or Zarua and the Rema deal with a courtyard or a house. By contrast, the Talmudic passages deal with movables, for there are no liabilities of borrowing or theft with respect to landed property,[49] and regarding movables the fear of theft or breakage remains in place. Therefore, we do not compel him for exhibiting middat Sedom, as the usage is liable to cause the owner a loss – and perhaps even the worry itself is regarded as a loss.[50]

 

If we accept this last proposal, the importance of the Rema’s ruling at on the practical level diminishes. It must be emphasized, however, that even in that case the principle does not change: ownership does not authorize a person to prevent another person from using his property for no reason. The effort to prevent such usage, which is rooted in the strong desire to emphasize the exclusivity of “private property,” may be seen as middat Sedom.

IV. The Nature of Compulsion

            Thus far our survey of the principle of kofin al middat Sedom has focused on the definition of the trait of middat Sedom. We shall now begin to analyze the compulsion itself. As we have already seen, the parameters of the two are not identical. There can be middat Sedom that does not lead to compulsion – whether because it does not express itself in a particular act, but in a general and amorphous way of life; or because it has only taken root as a personality trait, but has not yet found practical expression; or because of secondary factors, e.g., the possibility of changing the situation under discussion (“had the owner wanted to rent it out to someone else, he would have profited”), or because of a more or less arbitrary claim (“sometimes one channel may continue running while the other dries up”). The details of these conditions in and of themselves allow for discussion and definition. When does the severity of the trait or the degree of its realization lead to the law of compulsion? How subjective can a claim be and still be acceptable? Where do we draw the line between a direct and specific action, on the one hand, and general behavior or an indirect action, on the other? Questions of this sort do not lend themselves to clear-cut answers, and perforce any answer will be slightly vague and even ambiguous, and subject to differences of opinion. Even if we do not inquire into such details, we must still clarify the parameters of compulsion and its relationship to middat Sedom.

 

            In order to answer this question, we must first determine the foundation of the law that kofin al middat Sedom – both regarding the condemnation of the trait itself and regarding the compulsion. The first point does not present a difficult problem. In the extreme form of the trait, namely, a real case of lehakhis, there may be a violation of the prohibition of hating one’s fellow, and in many cases, also verbal oppression (ona’at devarim).[51] As for its more moderate form, namely, indifference to one’s fellow man, the loathing of the trait stems from the obligation to practice acts of loving-kindness – and therefore, as asserted by the Ritzba,[52] it applies by Torah law. The description of Sedom in the book of Yechezkel mentions only the neglect of giving charity: “Behold this was the iniquity of your sister Sedom: she and her daughters had pride, surfeit of bread and abundance of idleness, but she did not strengthen the hand of the poor and needy.”[53] The Sages, however, understand that it includes also the neglect of performing acts of loving-kindness. Moreover, the Gemara in Sanhedrin emphasizes precisely this point: “[The people of Sedom] said: ‘Since there comes forth bread out of [our] earth, and it has the dust of gold, why should we suffer wayfarers, who come to us only to deplete our wealth? Come, let us abolish the practice of traveling in our land.’ ”[54] The obligation to condemn this trait stems then from the two general sources of the mitzva to perform acts of loving-kindness – “You shall walk in His ways” (Devarim 28:9), on the one hand, and “You shall love your neighbor as yourself” (Vayikra 19:18), on the other.[55] Its source is also found in another general verse, “You shall do what is right and what is good” (Devarim 6:18), this being the source for moral conduct that goes beyond the letter of the law[56] – which should be understood as a full-fledged obligation, not just an act of special piety.

 

            When, however, we come to examine the basis for compulsion, both its objective and its rationale, we encounter confusion. Is the foundation for coercion moral or practical? Two questions arise that are parallel and independent, but to a certain degree also intertwined. What obligates the compulsion, and in what circumstances is it enforced? Specifically, is the compulsion rooted in the moral obligation of the owners, so that it is executed as a response to their negligence? Or perhaps the possibility of providing for the needs of others suffices in order to coerce the owners? Put differently, what is the determining factor: the mitzva of the person who is “lo chaser” or the giving to the person who seeks to be “neheneh”?

 

The clarification of these issues has important halakhic ramifications. For example, does the principle of kofin al middat Sedom apply to a minor? If the moral factor is decisive, then it cannot apply to a minor; for example, we do not collect a debt from minor heirs (even if we know that their father did not repay his debt during his lifetime), because “repaying a debt is a mitzva, and minors are not obligated to perform mitzvot.”[57] Similarly, “[Legal guardians] cannot undertake on [the orphans’] behalf to give charity or to redeem captives.”[58] If, however, the other person’s need is the critical factor, there is no room to distinguish between adult and minor. Regarding what is stated in the mishna: “[A resident of a city] may be compelled to contribute to the building of a wall, folding doors, and a crossbar,” the Gemara adds: “Rav Yehuda said: All must contribute to the building of doors in the town gates, even orphans.”[59]

 

            I am unable, based on the words of Chazal and the Rishonim, to offer clear answers to these questions. It is, possible, however, to point to various sources which, in my opinion, touch on the aforementioned issues. One such source is the disagreement between Rabba and Rav Yosef regarding the division of an estate, according to the understanding of Rashi, which we already mentioned above. Their disagreement revolves around the refusal of one heir to allow his brother to take his portion from that part of the estate that adjoins land that he already owns – in a situation where one of the portions is liable to go up in value in the future, though it is not known now which portion will appreciate. It seems to me that in light of the present knowledge, which does not justify preferring one portion over the other, the brother who does not own the adjoining property should be classified as one who suffers no loss; and his refusal to give his brother the portion that is adjacent to his own property should constitute, from a subjective perspective, outright middat Sedom. Therefore, if refinement of the soul suffices to impose compulsion, Rabba is correct. If, however, the obligation of compulsion stems from the obligation to aid another person, there is room to say that the obligation to help him is limited to a case where there is not a trace of loss to the owner, so that the benefit to the other party derives, as it were, from ownerless property. However, if, objectively speaking, the compulsion is liable to cause the owner a loss, despite the fact that from his perspective we are dealing with purely arbitrary stubbornness which constitutes middat Sedom in the full sense of the word, he cannot be compelled. Since we rule here in accordance with Rav Yosef, we must conclude, according to Rashi, that the moral factor alone does not suffice to obligate compulsion.

 

            According to Rashi, it is Rabba who emphasizes the subjective element regarding compulsion. According to the Rambam, on the other hand, it seems just the opposite. According to him, the Gemara deals with parcels of land of different quality, one tract of the best quality and the other tract of the poorest quality; all this notwithstanding, Rabba maintains that since there is no real loss in the bookkeeping sense, we compel the brothers to relinquish. In such a case, it is clearly impossible to view the one brother as a terribly cruel person who arbitrarily wishes to deny benefit to his brother who owns the adjoining property. He puts forward a reasonable claim, and if we compel him, it must be that this is not to refine his character, but to bestow benefit upon the other. As for the position of Rav Yosef, he too might agree with this understanding of compulsion, but he maintains that the difference in quality between the fields constitutes a real loss, “for how is it possible that Rabba should call this middat Sedom, when this is the midda of the Torah, which says that damages are collected from land of the best quality, and debts are collected from land of the poorest quality?”[60] According to him, we are not at all dealing here with a case of zeh neheneh ve-zeh lo chaser.

 

            According to one of the Rishonim, it is possible to connect our question to the controversy between Rabban Shimon ben Gamliel and the Sages regarding the writing of two shtarei beirurin. The Gemara explains the position of Rabban Shimon ben Gamliel: “Because one can say to the other, ‘I do not like your rights to be beside my rights, for you appear to me as a lurking lion;’ ”[61] but the Gemara does not explain the view of the Sages. The Rishonim adopt several approaches. The Ramah[62] understands that they simply see Rabban Shimon ben Gamliel’s concern as farfetched and without value. The Rashba,[63] however, writes that even the Sages recognize the validity of the concern, but they are inclined to reject it because of the monetary loss suffered by the other party. This being the case, it is difficult to assume that we compel here in order to uproot the compelled party’s wickedness. Indeed, if we were asked to decide the case based on the subjective state of the compelled party, we would be unable to compel, because the level of Sedom’s evil – refusal to help another person even when it involves no loss whatsoever – does not find expression here. We are forced to say that, according to the Rashba, we compel because, objectively speaking, it is possible to cause one person to benefit without causing another person to suffer a loss. The practical factor suffices to impose compulsion. Of course, even if we accept this assumption, there is still room to question his position. It is possible to see the very fear – which according to the Rashba does not fall into the category of excessive paranoia – as a loss; whenever there is any degree of loss, the argument of the Ketzot Ha-choshen is certainly reasonable: “Whenever there is even a small loss, even if it is very minute, it is no longer regarded as middat Sedom.”[64] In any event, it seems certain that according to the Rashba, the practical factor suffices to employ compulsion.

 

            Moreover, if we go back for a moment to the passage of Rabba and Rav Yosef, it seems that according to the Rashba the benefit derived by the other party is the only decisive factor. In the course of his explanation,[65] the Rashba agrees with those who maintain that we only compel according to Rabba if the ownership of the adjoining property preceded the division of the estate. This seems to be difficult, as pointed out by Rabbeinu Yona in his Aliyyot: “There is no basis for this, for inasmuch as Rabba’s rationale is not based on the strict law, but rather on the rule that kofin al middat Sedom, why is [allowing him to obtain the adjoining field in] one case considered doing ‘the right and the good’ more than the other?”[66] We are forced to say that the Rashba does not see the moral education of the owner as sufficient reason for kofin, for from this perspective the wickedness of the brother is equal in the two cases, and there is no difference between them. However, if the benefit derived by the other party is the decisive factor, it is perhaps possible to view the compulsion as a sort of right belonging to the brother who owns the adjoining property; and this exists only when he actually owns the adjoining property. If at the beginning of the division of the estate, this right had not been established, there is no room for compulsion.

 

            Finally, I think that this uncertainty is echoed in a disagreement among the Rishonim regarding preventing squatting le-khatechilla, in a case where the squatter would otherwise rent living quarters and the house is not up for rent. If the reason that we do not compel in such a case is that the person seeking the benefit is trying to take control of his fellow’s property, and this in itself turns the owner into one who suffers a loss, then this disagreement has no connection to our question. But if the reason is that the owner can turn his house into one that is up for rent, then the question may be raised: as long as there has been no change, and he has not yet put the house on the rental market, does his refusal not stem from middat Sedom? Must we be concerned about what might happen? If the wickedness in and of itself obligates compulsion, this argument is certainly correct. And perhaps this is the way to understand the view of those who maintain that in such a case we do compel the owner. If, however, the subjective injustice does not suffice, and we compel only in order to allow the other person to derive benefit from “ownerless property,” then it can surely be suggested that whenever it is within the owner’s authority to change the character of his property, we do not allow others to derive benefit from it. The fact that he has not yet changed the status of his house does not at all impair his control over it.

 

            These proofs relate to the factors that activate kofin al middat Sedom. But we must still present a different question: What is the nature and objective of this compulsion? However we define the conditions that obligate compulsion, what is its teleological nature? Again we are faced with two possibilities: 1) the moral improvement of the party who refuses to allow his fellow to benefit from his property; 2) helping that other party to derive benefit. From one perspective, kofin is directed inwards and constitutes an educational effort to uproot the wickedness in the compelled party’s soul; from another perspective, its goal is outward, and it constitutes a means to achieve a pragmatic goal. Here, the emphasis is on the refinement of a person’s soul; there, on the benefit to his fellow.[67] The nature of the compulsion also varies according to the definition. According to the first understanding, the compulsion is against the person. On the practical level, the court might deal with his property, similar to the position of the Ramban[68] regarding compulsion in the case of repayment of a debt. Essentially, however, the coercion relates to the owner of the property: we compel the owner to waive that which belongs to him. According to the second understanding, however, the compulsion relates directly to the property. Those who compel – generally, the court – take control of the property, claiming the rights of the one who seeks benefit, without any connection to the owner. So, too, the role of the court as enforcer varies – here as teacher of justice and moral guide, there as ruler of the people, responsible for their welfare.

 

            Here, too, this is not a merely theoretical discussion. There is a clear and simple practical ramification, perhaps of wider scope than those connected to the previous question. Does compulsion apply to a person who continues in his stubborn ways? If the objective is moral refinement, there is no room for further compulsion; but if we are concerned about benefit, there is certainly room. From here we see that there is a possibility for the sinner to profit, for if the goal of the compulsion is the compelled party’s moral improvement, we are dealing here with a crooked person who cannot be straightened. In this framework, the question is not whether it is appropriate to compel, but whether it is possible to compel. If, in the depths of his heart, a person refuses to heed the instruction of the Sages, and their efforts only harden him in his rebellion, then surely their rebuke is included in the category of “words that are not [going to be] heeded,” regarding which there is a mitzva not to voice them (Yevamot 65b).

 

            Needless to say, this question has great practical ramifications. Halakha recognizes compulsion – but employs it with a heavy heart and in the absence of alternatives. Halakha’s goal is elevation of the spirit, and not a bringing low of the body; a repair of the vessels, and not their breaking. Its means, at the initial stage, are education and guidance – tokhacha, “rebuke,” in the sense of instruction, rather than punishment. “The Merciful seeks the heart.”[69] As stated above, however, despite its ideal aspirations, Halakha does not recoil from compulsion. Coercive measures are sometimes employed in order to prevent some objective evil; and sometimes they are even seen as a means to educate the coerced party himself. The efficiency of employing coercion as an educational tool, however, is dependent upon the character and emotional make-up of the individual. Not everybody responds in the same way.

 

A person who generally recognizes the authority of the coercer and his values, and who accepts his commands even though he is not always scrupulous about following them, is likely to derive educational benefit from compulsion. In its wake he will not only repair the concrete injustice, but also repent, and thereby he will strengthen his inner acceptance of obligation in the future. Modern man, however, who is raised on an individualistic outlook and a liberal tradition, is generally inclined to react negatively to coercion. Even if he values the coercer’s goal and is perhaps prepared to realize it over time, the very fact of coercion stirs up fierce bitterness within him.[70] Instead of the Rashba’s question, “How is it possible to think that we would not compel one who exhibits the trait of Sedom?”,[71] the modern Jew is liable to ask just the reverse. This is not out of insensitivity to evil, in society or in his soul, but out of insistence on his own dignity. Thus the question stands: to what extent should compulsion be employed against one who exhibits middat Sedom, when the expected response to compulsion is negative?

 

            The wording employed by the Rosh in a responsum implies that the goal of compulsion is indeed educational: “We compel him to distance himself from evil traits and to perform acts of loving-kindness for his fellow in a situation where he suffers no loss.”[72] However, apart from this source, I have found no other sources, or even well-founded indirect proofs, in the words of our Sages, that would allow me to provide a clear answer. Perhaps we can adduce proof from the fact that we do not find regarding middat Sedom a halakha similar to that found regarding charity – “We confiscate his property in his presence and take what is appropriate for him to give”[73] – that is, that the coercive measures can be employed only in the owner’s presence. Perhaps we can also draw inferences from the fact that the literal Hebrew wording is “kofin al middat Sedom,” “we compel for the trait of Sedom,”[74] with no direct object, rather than “kofin oto,” “we compel him.”

 

Standing on their own, however, these precise readings cannot decide the matter. My intention is to raise the question, and not to settle the issue; to present it as a vibrant question, which many have struggled with in the past, and not to resolve all the problems in its regard. Nevertheless, allow me to add two points. First, there is no contradiction between the two approaches. It is certainly possible that the achievement of either goal justifies compulsion; and it is possible that in certain conditions it is the one factor that is critical and in other circumstances it is the other factor. It is also possible that compulsion is only an option when there is a combination of both the educational and the practical factors. We are not necessarily required to choose between the two.

 

            Secondly, in certain cases we encounter compulsion more authoritative than anything that we have seen thus far. The various modes of compulsion described above all require certain actions on the part of the coercing party – whether against the owner or against his property. In other cases, however, the right of the other party exists on its own, and it stems from a new definition that restricts the concept of ownership itself. When the court gets involved, its role is legislative, rather than juridical. Its action is based on the principal that “property declared ownerless by the court is ownerless” (Yevamot 89b) and its means is a general ordinance, rather than taking control of a particular individual.

 

            This concept is rooted in a Talmudic passage at the end of chapter Chezkat Ha-battim, dealing with two neighbors, one of whom wishes to extend a projection over the airspace of his fellow’s courtyard: “[Regarding] a projection [which projects not less than] a handbreadth, there is a chazaka (presumption of right), and the owner of the courtyard can prevent it [from being made in the first place]. If it is less than a handbreadth, there is no chazaka for it, and he cannot prevent it [from being made].”[75] In its discussion regarding the second clause, the Gemara records a disagreement between Rav Huna and Rav Yehuda concerning the question of whether it is only the owner of the roof who cannot prevent the owner of the courtyard from using the projection, or whether even the owner of the courtyard cannot prevent the owner of the roof from using it.[76] The Gemara explains that the Amora’im disagree whether or not the owner of the courtyard can raise the claim of hezzek re’iyya, because the owner of the roof will gaze into his courtyard when he places things on the projection.

 

            In light of our generally accepted notions, a simple question arises: why must we examine the validity and justice of the claim raised by the owner of the courtyard? Surely the airspace of his courtyard belongs to him – about that there is no disagreement; surely this is so, because he is able to acquire objects by virtue of their having entered his airspace! Does he not then have the legal right to prevent other people from using it? Do not his desires – even if they are totally arbitrary – constitute a barrier to use that must be respected? On the other hand, however: who has given the owner of the courtyard the right to use the projection? Even if we grant him the right to force his neighbor to remove it, surely as long as it is standing, for whatever reason, the owner of the courtyard should not be able to prevent his neighbor from using it!

 

This question, with all of its ramifications, has no answer; it can, however, be resolved if we undermine its fundamental assumption, which is mistaken: in the framework of Halakha, ownership does not have such extensive scope, for the reason already alluded to by the Rashbam. We do not accept the argument put forward by the owner of the roof, “for he cannot object and say, ‘Do not use the projection,’ for what loss is caused to the owner of the roof?”[77] This point is clarified by the Rashbam’s comment on the first clause, which accepts the objection of the owner of the courtyard:

 

That is to say, if someone comes from the outset to extend a projection not less than a handbreadth over his neighbor’s courtyard, the owner of the courtyard can prevent him from the filling the airspace of his courtyard. We do not say, Zeh neheneh ve-zeh lo chaser, for surely there is a loss, as the Gemara says regarding a projection less than a handbreadth: since the owner of the roof uses the projection, he looks into the courtyard, and there is hezzek re’iyya.[78]

 

The inference is clear: were it not for the damage caused by exposure, there would be no room for objection, for zeh neheneh ve-zeh lo chaser. Here is the foundation of the law. In this passage, however, there is no mention of anything like kofin al middat Sedom, for there is no need for a particular coercive measure. Here the ownership is not sufficient to allow the owner to act in the manner of Sedom.

V. The Right to Private Property

            It is difficult to determine how far-reaching our halakha is. However, two points must be emphasized. First, this level does exist; second, the limitation set on ownership constitutes an important motif in the whole issue of kofin al middat Sedom, and not only in the stage reflected in the passage in Chezkat Ha-battim. Even when Halakha makes use of coercive measures, the result is also a diminution of proprietary rights. The fact that this diminution takes place only by way of a particular legal procedure does not negate the content and validity of the concept. The scope of the restriction is the subject of controversy – between the two opinions cited in the Or Zarua, between Rashi and Rabbeinu Tam, and others. However, there is no disagreement about the principle. The extent to which this reaches may be seen in a law inferred by the Rambam – and agreed to by several other Rishonim – from an incident related at the beginning of Bava Batra:

 

If someone has windows down below in his wall, and his neighbor wishes to build in front of them, and he says to him: “I will make other windows for you in this same wall above these,” he can prevent him from so doing, saying: “When you make the windows, you will damage the wall and make it unstable.” Even if he says: “I will take down the entire wall, build you a new one, make windows up above and rent a house for you to live in until I finish the building,” he can prevent him, saying: “I do not want to trouble myself with moving from place to place.” Therefore, if there is no trouble whatsoever, and he does not have to move, he cannot prevent him, and we compel him to allow his neighbor to close the window below and open a window above, for this is middat Sedom. Similarly, regarding any instance in which zeh neheneh ve-zeh lo chaser, we compel him.[79]

 

From the Rambam’s formulation, we are liable to conclude that if the owner suffers no loss, his property is given over to his neighbor for demolition and reconstruction. In my opinion, such a conclusion is excessively far-reaching. It is more reasonable to assume that the owner of the wall can prevent his neighbor from touching his property, but he foregoes the right of a neighbor to demand a certain distance on the part of a neighbor who comes to build in front of his window. Even in this watered-down form, in this compulsion – and the Rambam sets it up as typical – there is a constriction of the arbitrary control that we ordinarily associate with ownership.

 

The spirit of this halakha is illustrated once again in the words of one of the leading Acharonim. Commenting on the words of the Rema, “[Regarding] a wall separating between [the properties of] Reuven and Shimon, and the wall belongs to one of them, he can demolish it if he wishes, and his neighbor cannot prevent him [from so doing],”[80] the Netivot Ha-mishpat writes: “It seems that this applies when he has some need to demolish the old wall, e.g., the original wall was built entirely on his property, or the like. However, if there is no such need, we compel him [not to exhibit] middat Sedom, and he receives [from his neighbor] half the value [of the wall].”[81]

 

            The simple truth may be told: kofin al middat Sedom absolutely contradicts the prevailing notion that a person is the supreme ruler over his property, that his assets are “like clay in the hands of the potter” (Yirmeyahu 18:6), and that as long as he does not cause others direct damage, he can do with his property as he pleases.[82] Halakha is animated by a different spirit. It likewise stands in opposition (though from a totally different perspective) to the philosophical formulation of this individualistic position – the position of Hegel and his followers – which sees in the idea of ownership an extension and realization of the free self, and therefore denies any limitation on proprietary rights whatsoever as a restriction on the person himself.

 

It is true that the relationship between the person and his ownership is not foreign to Halakha. The Sages recognized the human feeling that “a person prefers one kav of his own to nine kabbim of another”[83] and even concedes its value; but the source of their outlook is different. In Hegel’s thought, this idea is filled with metaphysical content, which turns ownership into a right that is more or less absolute, which can only be set aside by the needs of the state as a whole. What is critical here is not the benefit derived from the property but the status of ownership in and of itself. “If the emphasis is placed on my needs,” writes Hegel, “then ownership of property is an appropriate means of filling them. But the true view is that from the perspective of liberty, ownership is the first realization of liberty, and is thus an essential goal in and of itself.”[84] According to Judaism, however, the value of realizing the person through property constitutes only one aspect of a fundamental social category. It is liable to be set aside in the face of other moral factors – including the welfare of others. As for the value of property in general, the emphasis is indeed placed on the idea of fulfilling man’s needs – “it shall be yours to eat” (Bereshit 1:29, 9:3). In the framework of Halakha, there is almost no trace of the recoiling from private property found in the writings of a number of Church fathers.[85] The idea has an important, even central place in many realms – from marriage to offerings, from bikkurim to lulav, and especially in eiruv techumin – not to mention, of course, the realm of monetary laws. Never, however, does Halakha idolize this concept, and other moral demands are liable to bring about its restriction. If Halakha is very far from Proudhon’s declaration that “private ownership is theft,”[86] on the other hand, it refuses to agree with the popular adage that “an Englishman’s home is his castle.”

 

            To a certain degree, this restriction corresponds to the development of social life in our day. The French Revolution’s slogan linked the principles of equality, liberty and fraternity, and raised them together to the same level. The bitter fact is, however, that from the socio-economic perspective (as opposed to the legal perspective), the principles of equality and liberty tend to contradict each other; and the experience of the last hundred years testifies to the ascent of the former at the cost of the latter. This direction stands out especially in the tendency to limit proprietary rights in order to realize personal rights, and thus the parallel to the spirit of our law. This point, however, should not be overstated, and without a doubt we should not adopt apologetics that come to present kofin al middat Sedom as a modern phenomenon.

 

The truth is that in the restricted realm of zeh neheneh ve-zeh lo chaser, this halakha is still far-reaching. First, as we have seen, its objective is not only social goals, but also refinement of the individual; in the words of the Rosh, “We compel him to distance himself from evil traits and to perform acts of chesed for his fellow.”[87] Second, its scope is wider. Essentially – and perhaps this point is connected to the previous one – modern legislation that restricts the right of ownership generally deals with commerce and industry as impersonal phenomena. Kofin al middat Sedom touches on a more delicate point – the actual relations between an individual and his fellow.

 

            Thus far we have dealt with a qualitative restriction. However, the principle regarding zeh neheneh ve-zeh lo chaser leads also to the problem of the quantitative restriction. Here we encounter a position adopted by Locke, father of classical liberalism, and fighter for the right of ownership. He professes that ownership applies only to that which the owner can make use of to any advantage before it spoils: “Whatever is beyond this, is more than his share, and belongs to others.”[88] Or, as formulated by a later thinker (he, too, a follower of the liberal tradition): we must distinguish between “ownership for the purpose of use” and “ownership for the purpose of control,”[89] adopting one and condemning the other. If a person who has amassed great wealth sets aside a small amount for the poor, would not such an action, with respect to its impact on his life, be considered zeh neheneh ve-zeh lo chaser?

 

Here we touch upon Halakha’s attitude to property in general, on the one hand, and the obligation to give charity and perform acts of chesed, on the other, and to their interweaving – both in the definition of middat Sedom as a moral phenomenon and in the definition of compulsion in its regard.[90] This problem stands us before a wide and splendid horizon – the relationship between personal rights and proprietary rights. This topic, however, requires a more comprehensive discussion that is not possible here.

 


Translated by David Strauss. This article originally appeared in Hebrew as “Le-veirur Kofin al Middat Sedom,’ ” in Hagut Ivrit Be-America I (1972), pp. 362-82. Section headings have been added to the translation.

[1]       See Bava Batra 167b-168a. As for the meaning of shtarei beirurin, the Gemara (ad loc.) records two understandings: documents that record the arguments of the two litigants or documents that refer to the selection of the arbiters.

[2]       See ibid. 59a.

[3]       Eiruvin 49a.

[4]       Ketubbot 103a; see footnote 74 below about the phrasing in this passage.

[5]       See Bava Batra 12b-13a. The summary presented here follows Rashi. According to Rabbeinu Tam, the passage must be understood differently; see below.

[6]       This brief review refers only to those sources where the principle of kofin al middat Sedom is explicitly mentioned. Several other halakhot based on this principle are found both in the Mishna and in the Gemara. In addition to the sources that we will discuss below, we may add the mishna in Demai 7:8, according to the Rambam’s Commentary ad loc.; this source is already cited by the Or Same’ach, Hilkhot Shekhenim 12:1. This, however, is only true according to the Rambam’s commentary as found in the regular editions, which, according to Rav Kafah, constitutes an early version of the work. In the third version, which Rav Kafah published – Mishna im Peirush Rabbeinu Moshe ben Maimon: Seder Zera’im (Jerusalem, 5723), p. 155 – the Rambam interprets the mishna as referring to a matter of ritual law rather than civil law. The same ruling is found in Hilkhot Ma’aser 15:14. There is also the law governing two people holding fast to a document, Bava Metzia 7a, according to one understanding cited in Chiddushei Ha-Ramban, ad loc.; and the law that we split the money instead of the tallit, Bava Metzia 8a, according to Chiddushei Ha-Ritva, ad loc. See also Yad Ramah, Bava Batra, chap. 3, no. 290; and Piskei Ha-Rosh, Bava Metzia, chap. 9, no. 9.

[7]       See Rema, YD 2:5; Bei’urei Ha-Gra, ad loc., no. 16.

[8]       See, for example, Rashi, Eiruvin 49a, s.v. Middat; Rashbam, Bava Batra 59a, s.v. Middat, and commentary attributed to Rabbeinu Gershom, and Chiddushei Ha-Rashba, ad loc.; Rambam, Hilkhot Shekhenim 7:5; Yad Ramah, Bava Batra 168a, chap. 10, no. 81; Or Zarua, III, no. 24.

[9]       Avot 5:10. Interestingly, the harsh expression middat Sedom is not used by the Sages to describe the highest level of evil, as the level of rasha (wicked) mentioned there is even worse. Compare Avot de-Rabbi Natan, ed. Schechter, version 1, chap. 40.

[10]     Commentary of Rabbeinu Yona, ad loc.

[11]     See Devarim 15:10: “You shall surely give him, and your heart shall not be grieved when you give to him.” According to the Ramban, this warning constitutes a separate negative precept: “We may not be angry when we give charity to the poor, and we may not give it to them with ill-will” (Additions to Rambam’s Sefer Ha-mitzvot, Negative Command 17; see also Ramban’s Derasha on Kohelet, in Kitvei Ha-Ramban, ed. C.D. Chavel [Jerusalem, 5723], vol. 1, p. 205). The problem of subjectivity and objectivity as determinants of character in the realms of ethics and action assumes a central role in Judaism and also occupies the minds of non-Jewish thinkers, particularly from the time of Kant and the Utilitarianism school. This, however, is not the forum to discuss the matter at length.

[12]     It is, however, possible that the two sources discuss the same trait, but at different levels. In the one case, it merely distorts the person’s will, without constraining his actions when he submits to his Maker’s commandments. In the other case, it even impacts on his actions. However, almost certainly this very domination over his actions indicates a fundamental distinction in the nature and strength of middat Sedom and is not merely the result of the strengthening of other inclinations. Furthermore, when dealing with the giving of charity, it is difficult to invoke the concept of zeh neheneh ve-zeh lo chaser. In the end, the giver always suffers a loss. Thus, according to Rabbeinu Yona, we are forced to distinguish between the subject of the mishna and the Talmudic passages.

[13]     Magen Avot (New York; photo offset, 5706), chap. 5, no. 10.

[14]     Commentary of Rabbeinu Bachya to Avot (Jerusalem, n.d.), 5:10.

[15]     Eiruvin 49a; see the commentary attributed to Rabbeinu Gershom, Bava Batra 12b and 59a.

[16]     Commentary to Avot, 5:10.

[17]     Beit Ha-Bechira on Tractate Avot (Jerusalem, 5704), 5:12.

[18]     The gist of this approach to the mishna is found in the commentary of one of the Rambam’s disciples, Rabbeinu Avraham of Ferisol, though he apparently understands that there is no disagreement in the mishna: “There is a reason for the two designations. The one who calls it ‘average character’ does well, for it is midway between two opposites: he does not want to overburden his fellow, or that others should overburden him. However, the one who called it ‘middat Sedom’ is also right, for the people of Sedom were wicked sinners, and it is known that they hated each other and despised charity and acts of kindness, so as not to help one another” (Commentary of Rabbeinu Avraham Ferisol on Avot [Jerusalem, 5724], 5:10).

[19]     Halakha attaches great importance to the right of privacy, as is proven by the laws governing neighbors, especially hezzek re’iyya. We are dealing here with an entirely different kind of privacy: not the appreciation of quiet and the possibility of seclusion – an appreciation that is rooted in the feelings of human dignity and sanctity – but rather the desire for absolute control over a particular unit. A person’s exaggerated emphasis of this idea stems from his excessive aspiration for ownership and lordship.

[20]     Therefore, the law is that while one partner cannot divide jointly-owned property without the other’s consent, “money is as if it is divided” (Bava Metzia 69a), and he may take his share on his own. See also Bava Metzia 31b, Bava Batra 106b, and the Rishonim in both places, especially Chiddushei Ha-Ri Migash, Bava Batra 106b.

[21]     I have presented here the printed version: “ma’alinan leih illuya.” There are several variant readings, most of which are insignificant, with the exception of one important difference. Regarding Rav Yosef’s first comment, Rashi reads: “Ma’alinan leih illu’ei,” and comments: “for us it is high quality” (illu’ei = for us). The Behag reads “ma’alinan lah alakh,” and similarly the reading of the Rashba and the Rosh is “ma’alinan lakh,” and the reading of Rabbeinu Yona and Tosafot (cited by the Ramban in the name of Rashi) is “ma’alinan leih.” According to these readings, we can understand “we value this for him” or “we value this for you,” even without offering a reason, following the position of Rabbeinu Tam below. A third reading, “ma’alinan leih alluya,” seems to correspond to the position of the Ri Migash – see his Chiddushim, ad loc., s.v. Tartei – that the other heirs cannot object unless they are prepared to assess the value of the abutting field at higher than its ordinary assessment (in the case of iddit, prime land). However, see Yad Ramah, chap. 1, sec. 159, and Dikdukei Soferim here.

[22]     Chiddushei Ha-Ritva, Bava Batra (ed. M.Y. Blau, New York, 5714), 12b.

[23]     See Chiddushei Ha-Ri Migash, Bava Batra 12b.

[24]     Hilkhot Shekhenim 12:1; see there.

[25]     Chiddushei Ha-Ri Migash, ad loc.

[26]     S.v. Ameru; a sedeh ba’al is a field sufficiently watered by rain and requiring no artificial irrigation.

[27]     See Mordekhai, sec. 507.

[28]     Bava Batra 12b, s.v. Ma’alinan.

[29]     Cited in Shita Mekubbetzet, Bava Batra 99b, in the context of the Rashba’s explanation of the passage. See also Chiddushei Ha-Ran and Chiddushei Ha-Rashba, ad loc.; they explain it without making any reference to kofin al middat Sedom. See also Shut Beit Efrayim, CM, no. 49.

[30]     Bava Batra, chap. 1, no. 46.

[31]     Chiddushei Ha-Ritva, Bava Batra 12b.

[32]     Shut Ha-Rosh, 97, no. 2.

[33]     It should be noted that the Rashba (Bava Batra 12b) accepts the position of Rabbeinu Tam, but with a certain addition. He emphasizes that since there is a person who owns the adjacent field and is willing to pay more for it, the field goes up in value even with respect to other potential buyers, because they take into account the possibility of selling the property at a price higher than that which they paid.

[34]     It may be asked of Rabbeinu Tam: why is selling at the price of Bar Maryon not considered a violation of the prohibition of ona’a (overcharging)? See especially Bava Metzia 58b, the dispute between Rabbi Yehuda and the Sages there. Regarding the division of the property itself, there is no question, because it may not be included at all in the laws of ona’a. See Gittin 48a and Tosafot, s.v. I, who assume that according to the position that brothers who divide up their father’s estate are regarded as heirs, there is no ona’a in the division. See, however, Me’iri, Kiddushin, 42b, s.v. Ha-achin. The Rosh implies that according to Rabbeinu Tam, even sale at a higher price is possible. Perhaps he relies on the fact that real estate is excluded from the laws of ona’a (Bava Metzia 56b), and he maintains, in opposition to the Ramban (commentary to Vayikra 25:15), that there is also no prohibition. Alternatively, perhaps he maintains that for the purpose of assessment we ignore the prohibition. See also Ketubbot 109b.

[35]     I have limited myself to the first dispute in the passage. Important details follow from the other two disputes, but they are not fundamental to the discussion.

[36]     The passage in Bava Kama 20b-21a brings two reasons for exemption: 1) the absence of a reason to obligate payment – “What did he do to him?  What loss or damage did he cause him?”; 2) “The gate is struck with destruction” (Yeshayahu 24:12) – in other words, the squatter in fact benefits the owner, because owing to his presence, the house is not empty and forsaken. According to the second reason, it is possible to conclude that the exemption applies only to houses, but in general, when zeh neheneh ve-zeh lo chaser, the one who derives benefit must pay. This is explicitly proposed in Bava Kama 97a. Some Rishonim recoil from such a conclusion, ruling that he is exempt in all cases, even reconciling the end of the passage in various ways. See especially Chiddushei Ha-Rashba, s.v. Amar (though below, p. 97a, s.v. Amar, he implies otherwise), and Rosh, chap. 2, no. 6. The Rambam also omits the second reason, and in his wake also Rav Yosef Karo in the Shulchan Arukh; see Hilkhot Gezela 3:9, and CM 363:6, and Bei’urei Ha-Gra, ad loc., no. 16.

[37]     Logically speaking, it is possible to distinguish at the first stage between the squatter’s permission and the owner’s right: it is possible that the squatter is not permitted to live there, but the owner does not have the right to evict him; but I have not found any Rishonim who suggest this distinction. See, however, in Bava Metzia 117b, the view of Rabbi Yehuda according to Rabbi Yochanan, “A person is forbidden to derive benefit from another’s property,” according to Tosafot, s.v. Bi-shlosha, who understand that by strict law he is exempt, but nevertheless forbidden. See also below.

[38]     Tosafot, Bava Kama 20b, s.v. Ha.

[39]     Or Zarua, III, nos. 122-123. See also Hagahot Maimoniyyot, Hilkhot Gezela, chap. 3, no. 4, and Mordekhai, Bava Kama, no. 16, who note that the two opinions are brought by the Ra’avya, who does not decide between them.

[40]     Brought in Nimmukei Yosef, Bava Kama 20a [in Alfasi 8b].

[41]     This appears to contradict the last explanation proposed above to the controversy among the Tanna’im in the mishna in Avot; it seems understandable only according to the explanation of the Ra’a. In truth, however, it can be maintained according to all opinions. It is possible that the words of the Rishonim on this passage are stated only according to the position of the yesh omerim, that “Mine is mine, and yours is yours” is middat Sedom. According to the first Tanna, there might be a difference between zeh neheneh ve-zeh lo chaser in general and the use of another’s property in particular.

[42]     CM 363:66.

[43]     This conclusion put off the Noda Bi-Yehuda (2nd ed,, CM, no. 24), who says: “This is like one who wishes to live in another person’s courtyard, even if it is not up for rent. Is it possible to imagine that he can force the other person to allow him to live in his courtyard for free?” Yet the words of the Rema are almost explicit. Indeed, almost immediately thereafter the Noda Bi-Yehuda cites his position, noting that he thinks that it is stated only according to the Rambam – who maintains that the argument “We value this field like those of Bar Maryon” applies only in a case where the fields are equal – but not according to those who disagree with him.

[44]     See Bava Batra 88a and Bava Metzia 41a and 43b.

[45]     This is most reasonable according to the Ra’avad, who understands that the law that borrowing without the owner’s consent makes one a thief is not by strict law, but a penalty. See Chiddushei Ha-Ra’avad al Bava Kama, ed. Atlas, 2nd ed., Jerusalem, 5723, 97b: “He is like one who borrows without the owner’s knowledge. Even though we treat him like a thief regarding death resulting from the animal’s labor and all cases of unusual accidents (ones), nevertheless, he is not excluded from the category of borrower, and even for depreciation that involves a change, we assess the broken pieces like a borrower, for we do not penalize him to such a great extent.”

[46]     The Rambam, however, understands that he violates the prohibition of theft, for he calls him a “wicked man.” See Shut Ha-Rambam, ed. Y. Blau (Jerusalem, 5720), II, no. 615. However, the possibility that a borrower without the knowledge of the owner should be liable for ones and for the animal’s dying of its labor, even if he does not violate the prohibition of theft, is proposed by the Machaneh Efrayim. See what he says (Hilkhot Gezela, no. 17) regarding one who borrows another person’s horse in order to rescue his own money. While he is permitted to do so according to those who rule in accordance with Rabbi Yishma’el, son of Rabbi Yehuda ben Beteira (see Bava Kama 81b), nevertheless he is liable for ones like a thief, against the view of the Terumat Ha-deshen, no. 316.

[47]     Thus, it is cited in the name of the Ramban in Chiddushei Ha-Ritva Ha-chadashim, Bava Metzia (ed. A. Halperin, London 5722) 41a, and in Shita Mekubbetzet, Bava Metzia 41a.

[48]     See Machaneh Efrayim, Hilkhot Gezela, no. 20.

[49]     See Bava Metzia 56a. The mishna does not mention a borrower, but most Rishonim assumed that he is included as well. See, for example, Rambam, Hilkhot Sekhirut 2:1, and Tosafot, Shevuot 42b, s.v. Shomer, and Chiddushei Ha-Rashba, ad loc., s.v. Matnitin. But see also Or Zarua, III, no. 125, who says that “real estate is not excluded from the law of a borrower the way it is excluded from the laws governing an unpaid or paid bailee.”

[50]     See also Ramban, Milchamot Hashem, Bava Metzia 41a (23b in Alfasi): “It seems to me that one who borrows an article without the owner’s knowledge is neither a borrower nor a thief unless he has the intention to borrow it and moves it from its place for his own needs… but a shepherd who sets his stick or bag down on something has no intention of borrowing it and does not remove it at all from the owner’s possession.” If we emphasize the idea of removing the article from the owner’s possession, there is additional reason to distinguish between movables and real estate. Below, however, the Ramban himself implies that this removal in and of itself is not the critical factor; rather, in certain situations its absence testifies that the user had had no intention of borrowing and that he did not take the article for himself or change it from the use assigned to it by the owner.

[51]     The sin of hating one’s fellow would seem to apply in every case of “lehakhis,” but the sin of verbal oppression applies only if one relates directly to the party seeking benefit and provokes him.

[52]     See Bava Batra 12b, Tosafot, s.v. Kegon. By Torah law, acts of loving-kindness have only a general character, but no specific expression (by rabbinic law, the mitzva is assigned clearly defined actions; see Rambam, Hilkhot Evel 14:1). This general character is helping one’s fellow in need. The definition of “in need,” however, is relative, and therefore it comes to include the wealthy. In the realm of middat Sedom, anyone who “derives benefit” is regarded as one in need in relation to one who “suffers no loss.” This being the case, the condemnation of the trait is included in the positive precept of performing acts of loving-kindness.

[53]     Yechezkel 16:49.

[54]     Sanhedrin 109a. The distinction between charity and acts of loving-kindness is explained in Sukka 49b; see there.

[55]     The Gemara in Sota 14a and the baraita in Sifrei, Parashat Ekev, no. 49, base the obligation of performing acts of loving-kindness on the first source. The Rambam, (Hilkhot Evel 14:1), however, cites the second source. The interweaving of the two motifs is an important principle in Jewish ethics, but this is not the forum to discuss the matter at great length.

[56]     See especially the Ramban’s commentary to Vayikra 19:1 and Devarim 6:18. [Regarding the nature and definition of the concept of “lifnim mi-shurat ha-din,” “beyond the letter of the law,” see also Rav Lichtenstein’s article, “Does Jewish Tradition Recognize an Ethic Independent of Halakha?” in Marvin Fox, ed., Modern Jewish Ethics (Columbus, 1975) pp. 62-88; reprinted in Rav Lichtenstein’s Leaves of Faith, Volume II (Jersey City, 2004), pp. 33-56.]

[57]     Bava Batra 174a. Compare Rambam, Hilkhot Malveh Ve-loveh 26:10: “A minor who borrows is obligated to repay when he reaches maturity” – but not beforehand.

[58]     Gittin 52a; while the passage implies that were there a fixed amount of charity to give, the minor would be forced to contribute, that is not because of a basic obligation, but because of the law of chinnukh, educating minors.

[59]     Bava Batra 7b and 8a.

[60]     Rashba, Bava Batra 12b, as an objection against the view of the Ri Migash.

[61]     Bava Batra 168a.

[62]     Bava Batra, chap. 6, no. 81.

[63]     Chiddushei Ha-Rashba, ad loc. See also Shut Ha-Rashba, I, no. 889.

[64]     154, no. 1; as opposed to the view of the Even Ha-azel, Hilkhot Shekhenim 12:1. The obligation to perform acts of chesed applies, of course, even in a case of minor financial loss, but its absence should not be seen as an instance of middat Sedom in a case of zeh neheneh ve-zeh lo chaser.

[65]     See Chiddushei Ha-Rashba, Bava Batra 12b.

[66]     Aliyyot De-Rabbeinu Yona, ed. R. M. Hirschler (Jerusalem 5726), Bava Batra 12b.

[67]     Here too the root of the confusion is whether the foundation of the compulsion is moral or practical; however, despite the fact that our answers regarding the two of them are likely, from a psychological perspective, to draw from mutual influence, this question should not be identified with the previous one. Logically, one must not confuse the rationale for the definition; even though in the legislative process, the essence of an enactment is usually fashioned in light of the objective of its initiators, there is no real equivalency. It is possible, for example, that the reason for kofin is to help the party seeking benefit, but the only way to do that is via the moral and educational route.

[68]     See Chiddushei Ha-Ramban, Bava Batra 175b, and see also Ketzot Ha-choshen, 39, no. 1 (end).

[69]     Sanhedrin 106b.

[70]     Elsewhere, I have dealt with this issue at greater length. See my article, “Religion and State: The Case for Interaction,” Judaism XV (1966), pp. 399-403, and the sources cited therein [reprinted in Leaves of Faith, vol. 2 (Jersey City, 2004), pp. 1-32].

[71]     Chiddushei Ha-Ritva, Bava Batra 59a.

[72]     Shut Ha-Rosh, 97, 2.

[73]     Rambam, Hilkhot Mattenot Aniyyim 7:10; following Ketubbot 49b, and see there.

[74]     This is the reading in all the passages except for Ketubbot 103a; there, too, see Shita Mekubbetzet, in the name of Rashi and Tosefot Rid, omitting the word “oto.” According to Dikdukei Soferim, Bava Batra 12b, all the manuscripts read “kofin,” except for MS Hamburg which reads “kofin oto.” So too in Dikdukei Soferim, Eiruvin 49a, we find a reading of “kofin otah,” in the name of the Saloniki edition.

[75]     Bava Batra 59a.

[76]     Ibid. 59b.

[77]     S.v. Be-va’al.

[78]     S.v. Ve-yakhol.

[79]     Hilkhot Shekhenim 7:8. The Rambam derives this law from a passage in Bava Batra 7a; see Yad Ramah, ad loc., chap. 1, no. 67.

[80]     CM 154:13.

[81]     Ibid. no. 13. He receives only half of its value, because he must participate in the expense of building a wall in order to prevent hezzek re’iyya.

[82]     According to this viewpoint, the right to act in the manner of middat Sedom is the very definition of ownership. See Arthur T. Hadley, The Conflict Between Liberty and Equality (Cambridge, Mass., 1925), pp. 49-50. Compare also Huntington Cairns, Law and the Social Sciences (London, 1935), pp. 57-60.

[83]     Bava Metzia 38a.

[84]     G.W.F. Hegel, Grundlinien der Philosophie des Rechts, ed. G. Lasson, 2nd ed. (Leipzig, 1927), par. 45. See also Henry Scott Holland, “Property and Personality,” in Property: Its Duties and Rights Historically, Philosophically, and Religiously Regarded, ed. C. Gore (London, 1913), pp. 175-182.

[85]     See Paul Christophe, Les Devoirs Moraux des Riches: L’usage Chrétien du Droit de Propriété dans L’Ecriture et la Tradition Patristique (Paris, 1964); E.R. Hardy, “The Way of the Early Church,” in Christianity and Property, ed. Joseph F. Fletcher (Philadelphia, 1947), pp. 44-71.

[86]     Pierre J. Proudhon, Qu’est-ce que la Propriété? (Paris, 1849), p. 2.

[87]     Shut Ha-Rosh, 97, 2.

[88]     John Locke, Treatise of Civil Government, V, 31.

[89]     L.T. Hobhouse, “The Historical Evolution of Property, in Fact and in Idea,” in Property: Its Rights and Duties, pp. 25-6; cf. R.H. Tawney, The Acquisitive Society (New York, 1920), passim. Emphasizing ownership for the purpose of use rather than control has, of course, early roots in classical and medieval thought. See especially Thomas Aquinas, Summa Theologica II-II, 66:2; but this is not the forum to discuss the matter at length.

[90]     The compulsion here, however, is restricted, of course, to the legal framework. The party seeking benefit cannot act independently. In accordance with its general approach to social problems, here, too, Halakha imposes and emphasizes mutual responsibilities, rather than mutual rights. If the obligation regarding charity and acts of chesed that is cast upon the man of means is clear, the obligation of the one in need is no less solid. Even if pragmatically we cannot say that “anyone who steals from his fellow the value of a peruta is regarded as having taken his soul from him” (Bava Kama 119a), the prohibition of theft remains in place.