Ha'arama in Halakha ֠The Facts, The Mechanism, and the Objective
Halakha: A Weekly Shiur In Halakhic Topics
Yeshivat Har Etzion
Shiur #19: Ha'arama in Halakha
The Facts, The Mechanism, and the Objective
Rav Mosheh Lichtenstein
The holiday of Pesach is quickly approaching, and with it the wave of chametz sales. Once again the question arises regarding the legitimacy of utilizing a mechanism the sole purpose of which is circumventing a biblical law.
Truth be said, this sweeping declaration that the sale of chametz constitutes an attempt to circumvent a Torah law requires qualification, for it depends upon the nature of the mitzva of tashbitu (destroying chametz) and the prohibition of bal yera'e and bal yimatze (owning chametz), and it is not all self-evident that selling chametz is merely a circumvention (ha'arama). In other words, if we understand that these mitzvot are fulfilled when a person removes his chametz from his possession, and that there is no obligation to actively destroy the chametz, then the sale of chametz does not circumvent the command, but rather it constitutes another way of fulfilling it.
It is not, however, my intention to deal here with the sale of chametz itself, with all of its various components. But rather, I wish to exploit the periodic and public utilization of the sale as a starting point for a discussion concerning the use of halakhic circumventions in general. It is well known that halakhic circumventions are found all across the halakhic spectrum, the most famous among them being the prozbul (allowing loans to be collected at the end of the Sabbatical year), the heter iska (allowing the charge of interest), the sale of chametz, the heter mekhira during the Sabbatical year (allowing the land to be worked), bills of sale on Shabbat (allowing businesses to operate as usual), and the sale of firstborn animals (to permit their slaughter as nonsacred animals).
This question is not new. It was already raised by the ancient sages, for the Mishna and Gemara sanction certain circumventions (Ma'aser Sheni 4:4, Temura 5:1, Shevi'it 10:3, Beitza 11b, and elsewhere), while forbidding others. Already the Rambam writes that "a permitted strategem is called a ha'arama (circumvention), whereas one that is forbidden is called mirma (deception)" (Commentary to the Mishna, Temura 5:1). The Rashba (Beitza 11b, s.v. Rav Ada) writes that "regarding ha'aramot, we do not say that one is similar to the other." Later in the same passage, he formulates principles to distinguish between legitimate circumventions and those which are forbidden to be used.
Before approaching the subject, let us note that the term ha'arama refers to two different halakhic situations. The first type is a case of halakhic circumvention, the legal validity of which is beyond doubt, so that he who employs the circumvention is exempt from his halakhic obligation. The only question that arises is that of the religious and/or moral legitimacy of utilizing such a circumvention. This category includes ha'aramot such as bringing produce into the house by way of the roof or a window in order to exempt it from terumot and ma'asrot, the sale of firstborn animals, and the like. The other type of ha'arama involves acting in a certain manner different than usual which causes the action to be permitted. In other words, it is not the act itself or its result that is forbidden, but rather a specific way of performing that act. Most of the ha'aramot mentioned in the various passages regarding work that is forbidden on Shabbat and Yom Tov fall into this category. The common denominator between these two categories is the use of a certain stratagem to permit an act that is otherwise forbidden. For this reason they are both designated as a ha'arama, even though we are dealing with two different phenomena. In the coming lines we shall deal with the legitimacy of utilizing a ha'arama, rather than with the efficacy of any particular ha'arama. We shall therefore focus on the examples taken from the first category.
The Difference Between Obligation and Opportunity in the Observance of Mitzvot
The observance of mitzvot rests on two foundations. The first is man's position as constantly subject to God's command, a situation that stems from his absolute obligation to the Master of the world. The prophet Yeshayahu proclaims: "I have formed you; you are My own servant" (Yeshayahu 44:21), and man's encounter with God from his very creation has been in the shadow of "And the Lord commanded the man, saying" (Bereishit 2:16). And let us not forget that Moshe Rabbenu's greatest praise was the fact that he was God's servant. A sharp and trusted expression of this idea may be found in tractate Rosh ha-Shana (16a) with respect to the mitzva of shofar:
Rabbi Yitzchak said: Why do we blow [a teki'a] on Rosh ha-Shana? Why do we blow [a teki'a]? The Torah says: "Blow [a teki'a]"! Rather, why do we blow a teru'a? - Blow a teru'a? The Torah says: "A memorial of blowing [a teru'a]! Rather, why do we blow a teki'a and a teru'a while seated, and a teki'a and a teru'a while standing? In order to confuse Satan.
The Gemara recoils from the very thought of taking an interest in the rationale underlying the mitzva. It has no other choice but to remove the statement from its plain sense, and shift the attempt to answer the question of "why" from the mitzva to the common practice. The mitzva itself has only one reason the Torah says: "Blow."
Nevertheless, we are all familiar with the extensive literature regarding the reasons for the commandments in general and the many reasons offered for blowing the shofar in particular. Rabbenu Sa'adya Gaon did not rest until he found ten reasons for the mitzva. Whether we see the shofar blast as an expression of God's kingdom, a call for repentance, or an early form of prayer, common to all the Rishonim who offered these various reasons is the fact that they did not interpret the Gemara's argument, "the Torah says: 'Blow,'" as an attempt to close the door on offering rationales for the mitzvot. This is because observance of the mitzvot is not just a command and an assignment, but also a favor that God performs for His creatures. In other words, the mitzvot are an expression of God's love for His creations, and His desire to fill them with merit. If we examine the mitzvot from this perspective, then we should certainly search for their underlying reasons to the best of our abilities.
This duality can be illustrated in many areas of the Bible and Halakha, too numerous to be presented here in detail. It is based upon the duality presented in Scripture regarding the nature of the relationship between Israel and God, one of lover and beloved, on the one hand, and one of master and slave, on the other. So too the two-fold description of the revelation and the giving of the Torah at Sinai, both in the book of Shemot (chapters 19-20 vs, chapter 24) as well as in the book of Devarim (chapter 4 and 5), despite the many differences between them, reflect this idea. The first narration of the story presents God as the giver of the Torah, by arching the mountain over Israel like a tub, whereas the second time the Torah states that "the Lord talked with you face to face."
An interesting expression of this idea, and one that is important for our discussion, may be found in Nefesh ha-Chayyim at the end of sha'ar 1 (chapters 21-22), which uses this model to explain what Chazal meant when they said that the patriarchs observed the mitzvot. Rav Chayyim Volozhiner argues that the patriarchs observed the mitzvot, though "they were not commanded nor did they do so by law... it was only because they comprehended with the purity of their minds the awesome repairs that are performed with each mitzva in the upper and lower worlds and powers, and the great blemishes and destruction and devastation, God forbid, that they would cause if they do not observe them." In other words, they acted as they did solely because of the inner reasons of the mitzvot, and not because of a command. In this way, he explains the phenomenon itself why the patriarchs observed the mitzvot despite the fact that no commandment had yet been given, and also the fact that they could have refrained from fulfilling a particular mitzva, if according to their understanding, that would have been preferable in their special circumstances.
Therefore, when Ya'akov Avinu understood that, according to the root of his soul, he would cause great repairs in the upper worlds and forces if he marries these two sisters, Rachel and Le'a, and they together will build the house of Israel, he made great efforts and did much work to achieve this that they should marry him.
When, however, the Torah was given at Sinai, the element of absolute imperative was added, and from that point it was no longer possible to allow any exceptions whatsoever, ever were we to know with certainty that the exception is justified from the perspective of the inner root of the mitzva.
Rav Elchanan Wasserman, Hy"d, exploits this principle to explain the contradiction between the various talmudic passages regarding the mitzvot and prohibitions applying to a minor. On the one hand, the passage dealing with the principle that "one prohibition does not take effect where another prohibition already exists" (Yevamot 33a) implies that prohibitions do not apply to a minor before he reaches majority, while on the other hand, the Gemara in Sanhedrin (55b), implies that the action of a minor is indeed regarded as a transgression, and that he is merely exempted from punishment. The reason for this, according to Rav Elchanan, is "that the reason for the prohibition applies to a minor just as it applies to an adult. It is only that in practice the prohibition does not apply to him, since he was not warned, because it is not possible to warn him." In other words, the inner metaphysical reason for the mitzva applies even to a minor, whereas the aspect of imperative and obedience does not apply to a minor because the warning was never directed towards him.
As was stated above, our fundamental assumption is that the two elements exist in every mitzva and prohibition. Thus, it is fitting to refrain from eating forbidden foods not only because of the imperative, but also because they dull the heart, and to take the lulav, because it gives expression to the joy of nature, and the like, according to the reason of each and every mitzva. Situations may arise in which there is a gap between the reason for a mitzva as we understand it and the command that falls upon us to fulfill. In other words, there may be tension or incompatibility between the letter of the law and the spirit of the law.
Let us illustrate this phenomenon with a simple example. According to the Rambam, the reason for the prohibition of sha'atnez is that in biblical times it was customary for priests to wear clothing containing sha'atnez. If we accept this reason the reasonability of this specific reason is of no concern to us; we merely wish to illustrate the aforementioned principle, and not to examine the reason for the prohibition of sha'atnez then a wide gap opens between the reason for the mitzva and the details of the prohibition. If we relate to the reason for the mitzva, a person who wears sha'atnez today is not drawn to idolatry, nor does he cling to its adherents, whereas a person who wears the uniform of a modern priest violates the spirit of the law in the most severe manner, even if hands them in for a specially thorough examination in a sha'atnez laboratory. On the other hand, from the perspective of the detailed laws, it is clear that the first one is liable for lashes by Torah law, for having violated a biblical prohibition, whereas the second is exempt from all punishment. The religious sensitivity towards idolatry and the feeling of revulsion which the Torah wished to implant within us are lacking in the second person but not in the first person. However, the absolute obedience and commitment to God's word as an obligating imperative are found and are fulfilled in the one who wears the priestly garments free of sha'atnez, but not in the one who wears the clothing with sha'atnez outside of its cultural-religious context. The conclusion that follows from all this is that the one who wears modern priestly garb does not violate any formal prohibition, but deserves every religious and spiritual condemnation, while the other one violates a prohibition and is liable for lashes.
Ha'arama as a Halakhic Solution
Let us return now to the matter of ha'arama. Ha'arama is a halakhic mechanism intended to circumvent the formal aspect of a prohibition. In other words, it is a stratagem that provides the possibility of evading the obligating imperative, by creating conditions in which the details of the mitzva do not apply. However, all that this can do is provide an exemption from the letter of the law, but it is incapable of providing an answer to the fact that the spirit of the law is not fulfilled and is not achieved, and that the person who utilizes the circumvention fails in that way. Formally, he does not violate any prohibition, but spiritually, his course is flawed. Ha'arama is, therefore, regarded as a negative phenomenon, and despite its efficacy, there is no justification to use it.
All this is true in a case where there is no great gap between the mitzva and its objective. To the extent that the reason for the mitzva and the details of its laws no longer go hand in hand, the situation changes. If the reason for the mitzva is no longer meaningful to us and our entire obligation to the mitzva stems from the absolute imperative of master of the universe, then creating a mechanism that evades the formal prohibition is no longer problematic, for the reason is no longer a factor. In all such cases, ha'arama becomes legitimate, and perhaps even desirable.
There is no need to emphasize the danger lying in the attempt to examine each and every mitzva in light of its reason, for the reasons for the mitzvot are concealed from us and how can we know the mind of the Almighty. Many reasons have been offered by many commentators; who can say which are more correct or less correct, and what are the esoteric that are hidden from us, and how can we rely on such a distinction. Indeed, the concern about error is real and sets a great warning sign before us. This notwithstanding, there are certain cases and defined situations regarding which we can say that the Torah did not mean for the command to apply to them. Let us take as an example the mitzva of releasing debts in the seventh year. The Torah inserts it next to the mitzva of giving charity, and relates in its context to the social dimension of helping one's neighbor. Releasing debts was intended to provide a poor person who had been forced to take a loan with the opportunity to open a new page once every seven years, without the burden of past debts preventing him from ever rehabilitating himself. The classic borrower in the Torah is a poor person who needs a longer economic breathing space ("If you lend money to my people, to the poor man among you..."), and if he fails to rid himself of the burden of debt that is oppressing him, the mitzva of charity requires that the debt be released. It is clear as day that the Torah never meant that every seven years this mitzva should give a windfall profit to large economic concerns like banks or insurance companies. However, even though the Torah never intended to make the banks richer on the backs of the simple saver, the mitzva is defined as a release of debt, and as such it formally applies to all loans. A situation is created of a great gap between the purpose of the mitzva and its practical application. Paraphrasing the prophet, this is a case of "that which I commanded, but never entered My mind."
Desirable ha'arama entered the world to resolve such a problem. Ha'arama resolves the technical halakhic problem without effecting a parallel change in the reason for the mitzva. Therefore, if the original reason is still valid and a person extends a private loan to his poor neighbor, or to a pauper who came to his door, the writing of a prozbul will provide him with the legal authority to collect his loan, but all of his actions and goals will stand in contradiction to the will of the Creator with respect to this mitzva. It is important to emphasize that even today such conduct is expected from one who lends money to a neighbor or relative. However, with respect to a financial institution, the relations with which are of a business nature, the goal of helping the poor is never fulfilled, and the only thing that prevents a person from collecting his debt is the legal reality in itself. With the writing of the prozbul, that problem altogether disappears, and there is no moral complaint or religious criticism of his actions, and whoever writes a prozbul in such a situation is to be praised.
Hillel's considerations when he enacted the prozbul were based on this principle, though his enactment related to "domestic loans" and not to savings accounts or business loans. Hillel saw that people were hesitating to extend loans, and thus they were in violation of a biblical prohibition, that the poor were left without a source of financing their basic needs, and that the objective of the mitzva was not being fulfilled whatsoever. In such a situation, Hillel decided that the Torah's objective would better be reached through the writing of a prozbul, through the waiving of the lofty social vision of the Torah. However, the question remained regarding the substance of the law and the definition of the details of the mitzva as an absolute imperative that prevent such a waiver. In order to deal with this problem, the prozbul was enacted as a desirable circumvention in the new circumstances. Another example is the sale of firstborn animals today. Here too, it is clear that the objective of the mitzva is to offer the firstborn animal as a sacrifice, and in the absence of this possibility, taking care of the unblemished firstborn turns from a desirable privilege to a religious problem that lacks a reasonable solution, and therefore it is fitting to prevent the situation from arising. And again, the absolute formal definition of the law does not allow us to proclaim that the law has changed. Rather, we must create a legal mechanism that answers the halakhic requirements, in order to attain what is right and desirable in the circumstances of a world that is missing the Temple.
Disagreements may arise at times as to what should be preferred in given circumstances. A good example of this may be found in the debate regarding the heter mekhira during the Sabbatical year. Most of the debate revolves around the question of the efficacy of the circumvention, those who forbid the sale asserting that the sale does not resolve the halakhic problem, and those who permit the sale arguing that it does. The Netziv, however, in his discussion regarding the matter, addresses the question of the desirability of the circumvention. He argues that even if the sale is formally valid, it is not desirable, and not even correct, from a spiritual perspective. In contrast, those who permit the sale argue that the Torah never meant for the mitzva of shemita to bring and end to the settlement of Eretz Israel, and if fulfillment of the mitzva will cause the land to be abandoned, it is desirable to utilize a circumvention and prevent such an outcome.
The same applies also to the sale of chametz. The Torah commands a person to rid himself of all his chametz and utterly destroy it. It is, however, possible to circumvent the command by selling the chametz. If we are dealing with ordinary household quantities of chametz, the right thing to do is clearly to fulfill the Torah's mitzva and not to circumvent it. However, the Torah never meant that the mitzva of destroying chametz should destroy a person's livelihood. Therefore, when the Jews began to do business with chametz, and their livelihoods depended on it, circumvention became a necessary and legitimate option for those that circumstances brought them to it.
Even today, then, it may be argued that the circumvention of selling chametz for one whose livelihood depends upon it, such as grocery store owners, bakeries, and the like, but it is not justified for the average person who wishes to save the small amount of spaghetti or whiskey remaining in his cupboard, and regarding whom the verse states: "But on the first day you shall destroy the leaven from your houses."
 A comprehensive summary of the topic may be found in Encyclopedia Talmudit, s.v., ha'arama.
 An absolutely parallel passage regarding the malkhuyot, zikhronot, and shofarot is found in Rosh ha-Shana 32a.
 Kovetz He'arot, sec. 75, no. 1-2; Kovetz Shi'urim, Betza, no. 67.
 I repeat that what we are saying here related to the sale of chametz on the assumption that we are dealing with ha'arama of the type discussed above. We do not discuss here the efficacy of the sale or the many halakhic problems connected to its execution. Similarly, we are ignoring the opposite possibility that we are not dealing here with ha'arama at all, but rather with the proper fulfillment of the mitzva of bi'ur chametz.
(Translated by David Strauss)