Volume 37 Number 62
Produced: Wed Oct 30 5:00:08 US/Eastern 2002
Subjects Discussed In This Issue:
Legal Fiction (8)
[David Herskovic, Chaim Tabasky, Gershon Dubin, Zev Sero, Simon
Wanderer, J B Gross, Bernard Raab, Hyman L. Schaffer]
Pruzbul (2)
[Shmuel Himelstein, Avi Feldblum]
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From: David Herskovic <crucible@...>
Date: Fri, 25 Oct 2002 01:43:11 +0100
Subject: Legal Fiction
I agree that the sale of Chomets on Erev Pesach is not a legal fiction
because a contract is formed. A more accurate word would be a sham. You
the seller are purporting to perform a sale when in reality it is
anything but that.
OK, if the non-Jew turns up on your doorstep and wishes to complete the
sale by paying the balance, you hand him the Chomets in return for the
money and you smugly turn up in shul telling those who care to listen
how this proves the it was a genuine sale all along. Somebody compared
it to commodities trading where binding sales contracts are formed by
handing over only a deposit.
But it takes two to form a contract, so try putting the shoe on the
other foot. Imagine some crafty Jew with a surplus of Chomets tries to
enforce his contract by suing the buyer to finalise the sale. Find me
the court that will enforce the contract and oblige the purchaser,
usually from the lower strata of society, to finalise the deal or
bankrupt him when he can't come up with the cash and then I'll be
persuaded.
Of course, lack of enforcement does not nullify the contract but it does
show that apart from orthodox Jews who require the sale to divest
themselves of the Chomets, there are few others who will see it as a
contract which was intended to create legal obligations and thus
enforceable.
BTW, wouldn't an eiruv where a notional marker creates different
rshuyous (environs) be a good example of a legal fiction?
Dovid Herskovic
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From: Chaim Tabasky <tabaskc@...>
Date: Sun, 27 Oct 2002 22:17:18 +0200
Subject: Legal Fiction
Akiva Miller wrote:
> As several posters have written, there have been real cases where the
> non-Jew actually comes around during Pesach to take and pay fair market
> value for the chometz which he paid a deposit on earlier. I think Rabbi
> Riskin (Chief Rabbi of Efrat) has the non-Jew do this each year, just to
> remind people of the sale's reality.
The Maharitz Hayyot (Darchei Hora'ah ch. 2) lists selling chametz as a
contract which one never expects to be fulfilled and elaborates on the
concept of selling chametz as "ha'aramah" which I guess translates as a
legal loophole or trick.
Prozbol, on the other hand... When the creditor gives the debt to the
Beis Din, what does he get in return? How sincere can that be? "Reuven
owes me $1000, and I am hereby donating it to the Beis Din, and they'll
be able to collect it even after Shemitta." Why would he do that? What
does he get out of it?
Pruzbul is not a gift to beit din. After shmitta it is forbidden to lay
claim to unpaid debts. However if the debts have been seized in some
form, such as through collateral, or a document with a lien on property,
even if the debt has not been paid it is not cancelled because the
creditor already is in possesion of a legal claim, and we say it is as
if the debt is paid. Any debt which has been brought to court and the
court has approved it's seizure, is considered as paid. "Handing over
one's uncollected bills to beit din" is not donating them to the beit
din but rather establishing claim to the debt before actual payment is
made.
(Of course, this explanation is not the only way to view pruzbul)
Chaim Tabasky
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From: Gershon Dubin <gershon.dubin@...>
Date: Mon, 28 Oct 2002 14:15:59 GMT
Subject: Legal Fiction
From: <kennethgmiller@...> (Akiva Miller)
<<"Reuven owes me $1000, and I am hereby donating it to the Beis Din>>
Someone who gives his shtar to beis din does not DONATE it, he asks beis
din to collect it on his behalf.
<<Finally, I heard once that our manner of doing Prozbol is effective
only nowadays when Shemitta is d'rabanan>>
Correct, except that it's not our manner, but prozbol itself, which is
only valid when shemita is derabanan.
Gershon
<gershon.dubin@...>
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From: Zev Sero <zev.sero@...>
Date: Mon, 28 Oct 2002 16:16:38 -0500
Subject: Re: Legal Fiction
<kennethgmiller@...> (Akiva Miller) wrote:
> I heard once that our manner of doing Prozbol is effective
> only nowadays when Shemitta is d'rabanan, and would NOT be effective
> in a situation where Shemitta was a Torah law.
You may be thinking of the gemara which says that the reason Hillel had
the right to institute the pruzbul, overriding the intention of the
Torah, was because in his day (as today) shemita was only rabbinic.
Tosefot points out that in fact a pruzbul would be effective even when
shemita was a Torah law, and explains that the gemara means that had
shemita been a Torah law, Hillel would not have publicised a method for
getting around it, even though it was perfectly valid.
Before Hillel's day, the pruzbul loophole was effective, but because it
needs the cooperation of a bet din, it was uncommon, because no
reputable bet din would lend a hand to such a thing. Hillel's
revolutionary decision was to publicise this loophole, and encourage
batei din to go along with it, because shemita was only Rabbinic, while
the prohibition against refusing to lend is still Torah law. (This is
all in Gittin, 30-something, I think, side a).
Zev Sero
<zsero@...>
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From: Simon Wanderer <wanderer@...>
Date: Fri, 25 Oct 2002 12:34:16 +0000
Subject: Legal Fiction
In the recent discussion on the above topic, several correspondents have
demonstrated that Pruzbal and M'Chiras Chametz are not legal fictions
and contrasted them to other concepts within Halacha that *are* legal
fictions. I fail to see how this solves anything. Surely, the problem
originally raised was one of how Toras Emes can rely on 'fiction' within
the Halachic process, and was not limited to the two examples mentioned.
Rather, the answer must be to show how *no* Halacha utilises fiction. A
little thorough, clear thought about the cases in question should reveal
that this is the case. Unfortunately, time constraints prevent me from
addressing this issue in depth (see, however, a chapter on legal
fictions in H C Schimmel's "The Oral Law", published by Feldheim) but by
way of example, Solomon Spiro (MJ 37/52) presents the following example
of a legal fiction:
<<when an item is entrusted to a bailee, ( shomer) and the item is
stolen, if the bailee is, let us say, a shomer hinam, he is excused from
paying for the loss. If however he offers to pay, and the thief is
subsequently found, the penalty of kefel, double the amount, belongs to
the bailee. And the gemara wonders how this works. There is no
kinyan--the kefel should go to the owner of the item. So a legal
fiction is invoked--it's *as if* the owner states to the bailee when he
accepts the item (koneh for shemirah) if the item will be stolen and you
offere to pay, the kefel will belong to you.>>
This is not an example of legal fiction. Rather, as is common in Jewish
and secular law, certain underlying assumptions of reasonableness are
applied to every situation. Without certain base assumptions the whole
legal framework would be destroyed by reductio ad absurdum.
The rights to the Kefel are included within this framework. Just as any
agreement will assume that each party means what he is saying and is not
lying and that neither party has invented their own language in which
words have different meanings, and we do not require specific verbal
confirmation of this fact (which itself would be suspect, hence my
reference above to reductio ad absurdum), because this lies within the
parameters of reasonableness. It may be less intuitive that the example
of the Shomrim falls within the bounds of reasonableness, but that is
not relevant to whether it is a legal fiction or not.
Kol Tuv
SW
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From: J B Gross <jbgross@...>
Date: Sun, 27 Oct 2002 21:26:53 -0500
Subject: Re: Legal Fiction
"Hamoser Shtarosav L'veis Din" means *filing* suit for collection on the
basis of the notes (not *donating* the loan notes to the court). Since
the shtar is irrefutable proof of the debt, the creditor is deemed to be
collecting on a Judgment, rather than pusuing a creditor, from that
point on.
Whether Prozbol literally qualifies under that mechamism or not hinges
on whether it is designed to operate when Shmita of loans is D'oraisa or
only D'rabanan.
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From: Bernard Raab <beraab@...>
Date: Mon, 28 Oct 2002 14:21:50 -0500
Subject: Re: Legal Fiction
From: <kennethgmiller@...> (Akiva Miller)
>>Prozbol, on the other hand... When the creditor gives the debt to the
Beis Din, what does he get in return? How sincere can that be? "Reuven
owes me $1000, and I am hereby donating it to the Beis Din, and they'll
be able to collect it even after Shemitta." Why would he do that? What
does he get out of it?<<
I believe what you are saying is a contract requires "consideration",
i.e., both sides must benefit in some way for it to be legal. This is
certainly a principle in American contract law and I believe in Jewish
law as well. For example, a "shomer chinom" an unpaid guardian, has very
little responsibility if the object he is guarding is lost or stolen. If
he is paid, however, an entirely different level of responsibility is
triggered. If a Prozbol is indeed given to the Beis Din without
consideration, then perhaps it is a "legal fiction". If, however, the
Beis Din were to collect a commission for the effort, perhaps not. What
are the facts?
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From: <HLSesq@...> (Hyman L. Schaffer)
Date: Mon, 28 Oct 2002 17:01:13 EST
Subject: Re: Legal Fiction
Akiva Miller has written why he believes that prozbul seems more
fictional than mechiras chometz, and the questions he raises concerning
what happens or doesn't happen in each respective case are valid ones,
certainly insofar as perceptions are concerned.But the underlying issue
is, of course, whether and when it is legitimate to use halachic
principles (not simply make them up and declare them to be the halacha)
to circumvent what the Torah seems to want to be the norm. In the case
of prozbul, the torah wants us to lend without considering whether we
will be repaid by shmitta time. When it doesn't work out that way,
chazal apparently have made a choice in values: it is more important to
keep open the possibility of lending and being repaid-- through a
strained but halachically viable method-- than it is to insist that
debts be annulled by shmitta where people, in violation of what the
torah wants, will not lend as shmitta approaches. I suppose the same
rationale was used with chametz: better to say that bal yeraeh ubal
yimatze are terms of legal ownership, and not simple physical posession
or proximity, than to cause brewery owners (and later the rest of us)
substantial financial loss. (I suppose that prozbul is a takkana because
of its preference of one Torah value--to lend-- over another: to remit
debts in shmitta. Mechiras chometz does not seem to have to weigh the
prohibition against possesssing chometz against any other mitzva;
rather, it prevents a financial loss which I believe one or would be
required by halacha to bear in order to fulfill the lav of bal
yeraeh). Whatever the situation, the question remains: under what
circumstances do we look for ways to manipulate halachic principles to
achieve a certain result or avoid a certain problem? Under what
circumstances can we use eis laasos to abrogate a Torah precept
outright?
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From: Shmuel Himelstein <shmuelh@...>
Date: Thu, 24 Oct 2002 12:00:40 +0200
Subject: Pruzbul
According to the New Encyclopedia of Judaism (2002),
"Conservative and Reform rabbis often point to the pruzbul as an example
of the rabbis' ability to nullify even an explicit Torah commandment, and
they have deduced from this the right of the modern rabbinate to do the
same. The Orthodox view, though, is that the device used by Hillel was
built into the very fabric of the law and that what Hillel did was to
institutionalize a method which had always been available on a particular
basis."
It is in the light of the above that I rail against those who would
proclaim Hillel's action as a "legal fiction," implying that the pruzbul
- as the Conservative and Reform rabbis regard it - is no more than a way
to bypass a distinct Torah law.
Shmuel Himelstein
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From: Avi Feldblum <mljewish@...>
Date: Wed, 30 Oct 2002 04:48:47 -0500 (EST)
Subject: Re: Pruzbul
On Thu, 24 Oct 2002, Shmuel Himelstein wrote:
> It is in the light of the above that I rail against those who would
> proclaim Hillel's action as a "legal fiction," implying that the pruzbul
> - as the Conservative and Reform rabbis regard it - is no more than a
> way to bypass a distinct Torah law.
I think the above deals with a proper understanding of what the
bounds of the legislative powers of Halacha is in the pre-Yavneh period
and now in the post-Yavneh period. A discussion of what a "legal fiction"
is, and whether or not Halacha recognizes such a concept is a valid
discussion area, and should be seperate from whether other groups
improperly make conclusions from the establishment of the Pruzbal.
Avi Feldblum
<mljewish@...>
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End of Volume 37 Issue 62
