Volume 48 Number 54
                    Produced: Mon Jun 20  6:26:33 EDT 2005

Subjects Discussed In This Issue: 

Is he a gonnif and what should I do about it? (3)
         [Sammy Finkelman, Harlan Braude, Ari Trachtenberg]
Is it theft not to return a borrowed article
         [Russell J Hendel]
Kavod Habriyos
         [Mark Steiner]


From: Sammy Finkelman <sammy.finkelman@...>
Date: Sun, 17 Jun 05 10:15:00 -0400
Subject: Is he a gonnif and what should I do about it?

From: Carl Singer <casinger@...>

> The "single use" discussions reminded me of this question.

> During winter months I daven at a nearby shul that has a weekday
> b'zman minyan for mincha-ma'ariv.

> One day someone I don't know, but recognize by face, asked me if they
> could borrow my pen -- I handed them my pen -- a cheap "stick" pen --
> like you get in hotels, etc.  That person did not return the pen to me
> after davening -- he apparently is one of many people who daven mincha
> with this minyan then daven elsewhere for ma'ariv (perhaps going back
> to work, etc., in between) That evening someone died and for the next
> week I attended a shiva minyan rather than the shul minyan.  And the
> clocks changed, etc., and I'm now davening back at my own shul.

> I see the "borrower" on rare occasion -- usually across the room
> during davening when it's inappropriate to talk with him.  He's
> apparently forgotten about the pen.

> Since I have the memory of an elephant -- should I remind this person
> of the borrowed pen or forget it?  My concern is NOT the pen, I have a
> drawer full -- we regularly buy them a dozen at time -- but the aspect
> of (his) genayvah?

Well, if you are mochel the pen, it is not - but he won't KNOW that.

I assume he left the shul that day before you expected him to, so you
did not get a chance to ask him for the pen back. He may have actually
completely forgotten about it by the time it came to return it, because
people do, or didn't have the opportunity without inconveniencing
himself - and may even be used to losing pens and perhaps assumes people
don't care.

Talking about the value of the pen, the greatest value is that day -
when perhaps you might need to use that one before you got to some plae
where you would get another one, so the greatest harm is already done,
of course.

What to do now?

Just renind him and come to an agreement - either you forgive him for
the pen, or he gives you that pen back, or another one -- but I wouldn't
want to take one more valuable - or he gives you 10 cents or 20 cents or
whatever for the pen.

I am sure there is a very good possibility that some time before Yom
Kippur you'll have a chance to talk to him.

From: Harlan Braude <hbraude@...>
Date: Fri, 17 Jun 2005 16:01:10 -0400
Subject: Re: Is he a gonnif and what should I do about it?

In my personal opinion, not returning a borrowed object - even an
inexpensive one - is genayvah, though if the value of the object is
considered less than the value of a "prutah", you'd probably have a
tough time convincing a beis din to enforce keren ve'chomesh.

You then have to consider what affect speaking to this person about the
pen will have. If the person considers such items "throw-aways" - like
tissues - and the person himself regularly "loses" them without a care,
you might come across as something of a cheapskate for bringing it up.

On the other hand, if the person is approachable and would engage in
discussions like the one we're having here, perhaps you could tell this
person that the pen issue bothers you and that you wanted to see how he
see things (oh, and get the pen back, too, by the way!).

Generally speaking, though, my advice is to learn to forget about such
things or be up front when you lend the pen and say something like 'here
you go, but I really need to have it back when you're done'.

Yes, you could say 'but there's a principal involved here'. Yeah, ok. 

From: Ari Trachtenberg <trachten@...>
Date: Fri, 17 Jun 2005 11:42:09 -0400
Subject: Is he a gonnif and what should I do about it?

I think it's unclear whether this is theft or not.  In the famous
followup of "shanyim ochazim b'tallit" (two are holding a tallit), I
seem to recall that the g'mara comes up teku (tied ... undecided) on the
what minimum value of objects need to be returned to an (unknown?)

On a practical level, since this is clearly bothering you (and could
lead to a "hating the person in your heart"), you should offer the
person an opportunity to return your pen ... but only if you can do it
without causing him embarrassment.

Ari Trachtenberg,                                      Boston University
http://people.bu.edu/trachten                    mailto:<trachten@...>


From: Russell J Hendel <rjhendel@...>
Date: Sun, 19 Jun 2005 20:10:10 -0400
Subject: RE: Is it theft not to return a borrowed article

Five explicit laws and issues are relevant here: I personally think the
5th is most important

1) RETURN TIME: The Rambam in the laws of BORROWING AND DEPOSITS
(Chapter 1:5) makes it clear that IF no time of return was specified
then the burden of return is on the borrower not the lender. In other
words the lender can FORCE the return whenever he wants (The converse is
true also: IF a time was specified then the borrower has the upper hand
(even if the lender dies)).

2) RETURN TIME FOR UTENSILS: But in the next paragraph (Chapter 1: 6) we
are told "But if someone borrowed a utensil for a specific purpose then
the lender cannot force a return till that purpose was done". One can
conceivably argue that the person borrowed the pencil to write something
down (Perhaps a novelty for mail-jewish !?). It follows that a few
minutes later the lender had the right to demand back the pencil.

3) THIEF: As long as the lender does not ask it back the person is not a
thief (No return time was specified). This brings an interesting
question: The person lending has plenty of pens. IF he asks it back AND
the person does not return it then the borrower BECOMES a thief. Perhaps
then it is not worth it. (But see point 5 below)

4) 7th YEAR: The pen does not become his at Shmitah. Shmitah (7th year
absolvment of loans) applies to MONETARY loans not to UTENSIL
loans. What is the difference between MONETARY and UTENSIL loans? The
Talmud in several places explains: "The borrower of money has borrowed
VALUE--he does not return the same dollar bill but rather the equivalent
value--by contrast the borrower of utensils has borrowed an OBJECT--he
must return the object." Shmitah only applies to MONEY.

5) TALKING IT OUT: I am a bit surprised by the whole story. After all if
the person is that bothered by the lack of return why doesnt he simply
TALK to the person--it appears to me that he forgot---I am sure he would
behappy to return it. (In passing: This happens to me all the time and
when I talk/confront the person they are more than happy to set things
straight). From this point of view the lender is DEPRIVING the borrower
of the fulfillment of RETURNING borrowed articles. I am certain he would
want to...he just forgot.

I wouldnt mind changing the thrust of this thread and exploring---"When
should we talk things out and when should we keep quiet".

Hope the above helps
Russell Jay Hendel; Ph.d. http://www.Rashiyomi.com/


From: Mark Steiner <marksa@...>
Date: Sun, 19 Jun 2005 23:25:56 +0300
Subject: Kavod Habriyos

        To the question whether a person can eat something he knows to
be unsold hametz (hametz she-avar `alav hapesah), Chana Luntz suggested
a lenient approach based upon kovod habriyos, citing responsa where
gedolim extended the concept to avoide include severe embarrassment to
the host.  Another example might be a cheeseburger made with (kosher)
chicken, since the prohibitions involved are "only" Rabbinic--you could
then eat such a cheeseburger in order not to embarrass somebody.

        To my mind, the posting of Josh Backon has already decided this
issue, and since I can't say it better, I'll just cite his words in

>120 years ago, the Aruch haShulchan YOREH DEAH Siman 119 went into great
>detail explaining the parameters of "chezkat kashrut". I'll list some
>main points:
>1) suspicion (that a person doesn't strictly observe kashrut) doesn't
>refer to testimony given in court; but even a hint of suspicion is enough
>(AH YD 119 #20).
>2) if one suspects that the person isn't observant, one is prohibited to
>be his guest ("assur l'hitareach etzlo")
>3) Chezkat kashrut: person puts on tefillin, goes to shul three times a
>day, washes his hands before eating bread, and obligates his family to
>observe kashrut (AH YD 119 #11)

        The Aruch haShulchan, of course, is just expanding on what the
Shulhan Arukh itself says in siman 119 in light of the poskim.  The
application to our issue is immediate: 119 simply takes for granted that
one is not allowed to eat something KNOWN to be nonkosher just to save
the host embarrassment, with no distinction being made as to the
Biblical or Rabbinic source of the prohibition.  The question then
arises--what if the host himself is suspected of being a kashrus
violator.  But, I repeat, no posek ever dreamed of allowing what Chana
suggests might be permitted.

        Now Chanah herself has provided new arguments against the
possibility of eating a rabbinically prohibited food to prevent somebody
from being embarrassed.  She has a long and erudite discussion of the
laws of the `am ha-aretz, where Hazal eracted various barriers to
"protect" what are called "haverim" from the depredations of the
ignorant or the violators.  Possible embarrassment to the `am ha-aretz
was not an issue, once again.  Some of these barriers included, as Chana
points out, not eating their food without tithing it, EVEN THOUGH the
rule is that the majority (rov) of `amei ha-aretz DO tithe their
produce!  What this means is that there was originally NO prohibition on
eating at the house of an `am ha-aretz since his food was permitted both
Biblically and Rabbinically (accordiong too the laws of "rov"), and
Hazal enacted the prohibition, with no regard to the possible
emabarrassment of the am ha-aretz.  As Chana points out, other
considerations mitigated this gezera in individual cases (for example, a
poor person can eat the produce of the am ha-aretz; there are also
family considerations), but the main point is that if Hazal had been
concerned about embarrassment, they would not have enacted these gezerot
to begin with, since really there is nothing wrong with the food of the
am ha-aretz, speaking halakhically.

        The Talmud (Berakhot 47b) goes so far as to say that an `am
ha-aretz (AH) cannot be counted in a zimun (three Jews who recite the
Grace After Meals together)!  The definition of an AH for this purpose
is "Even one who learned Bible and Mishnah, but did not apprentice
himself (meshamesh) to the Wise--this is an `am ha-aretz."  Not to count
someone like this to a zimmun is a great embarrassment indeed.  In fact,
the great Amora, Rami bar Hama was said by another gadol, Rava, to have
died early because he humiliated R. Menashe bar Tahlifa, thinking
WRONGLY that the latter fit the definition of the AH, and not counting
him to the zimmun.

        True, all the geonim and rishonim state that we do not apply
this stricture "today" and count the AH to the zimmun--but three reasons
are given, in fact the ones Chanah mentions in another connection:

(1) Eiva (hatred)--we are afraid of the animosity caused by leaving the
AH out of the zimmun.

(2) We are afraid that the AH will leave the fold completely--"kiruv" is
in order (as long as we are not asked to eat something that is not

(3) We don't hold ourselves on the level of the Wise (talmidei hakhamim)
at the time of the Mishnah, and thus the gap between us and the AH does
not prevent joining together in a zimmun.

        What is not at issue, ever, is kovod habriyos of the AH, which
Chana correctly says is a separate issue from "eiva."  From the story of
Rami bar Hama itself, we see that, had R bar H been correct about R.
Menashe, i.e. had the latter really been an AH, the former would have
been justified in excluding him from the zimmun, despite the resulting
embarrassment to R. Menashe!

        We see, therefore, that Chana may be asking the wrong
question--the question is not: whether kovod habriyos justifies my
putting into my moutn nonkosher food, as long as the source of the
prohibition is "only" rabbinic; but rather: seeing that I am not allowed
to eat known nonkosher food, in anybody's house, why is it that we pay
no attention to the embarrassment caused to the host?  The answer is
given by the Rosh (Rabbenu Asher) to Berakhot, seventh chapter: the AH
is to blame (pasha`) for his own ignorance - If I may be allowed some
philosophical terminology (which may put me in the category myself of an
AH), my not eating in the house of a person who will definitely feed me
unsold hametz, or a chicken cheeseburger, is not the cause, but the
occasion, of his embarrassment.  HE should be embarrassed (I would add)
for putting me in the dilemma: either violating my principles, or
refusing his hospitality.

        If the mistake is made out of ignorance of the halakha, I have
never found a problem in explaining to my host exactly why I can't eat
this or that, but in any case, a person who is ignorant is under a
halakhic obligation to remedy his ignorance, and it still remains a
platitude that nonkosher food is nonkosher.

        R. Moshe Feinstein, of blessed memory, who I think is accepted
among all members of our list, has an interesting debate with R. Teitz
z"l about blended whiskey.  Since I believe that R. Teitz' son may be
one of my readers, I'll try to get this right.  R. Teitz argued that
since whiskey may contain forbidden wine (to enhance flavor) and also
animal based glycerine (for smoothness), it needs a hechsher.  R. Moshe
agreed that a hechser would be a good thing (and gave a yasherkoach to
R. Teitz for raising the issue), but according to the strict letter of
the law, neither substance was a problem.  In the case of wine, the
amount of nonkosher wine required to render the whiskey prohibited was
17% (!!).  R. Moshe added that since he holds that blended whiskey is
therefore permitted, although he himself did not drink whiskey with
nonkosher substances as ingredients, he nevertheless would make a
lechayim at a kiddush in order not to embarrass the hosts.  Note,
however, that this was based on R. Moshe's strong belief that blended
whiskey is permitted, and the prohibition only a humra.  We can say,
therefore, that kovod habriyos sets aside a humra, but not an "issur".
Note that all the prohibitions here are rabbinic, and if R. Moshe had
been convinced that blended whiskey was an issur, he would have
refrained from drinking it even at a kiddush.

        Finally a matter of principle: Chana's assertion that kavod
habriyos might be adduced to permit the eating of nonkosher foods, so
long as the prohibition, is rabbinic, amounts to an original responsum
(teshuva).  Even the warning that a competent rabbi should be consulted
before relying on a "position paper" will not stop many careless readers
from relying on such a responsum when seen on the Internet.  I feel that
mail-jewish should be a forum for discussing responsa, not writing them,

Mark Steiner

[On this last item, I respectfully disagree, and feel that Chana's
submission falls well within the context of discussing halachic issues
and is not the publishing of an original responsum. As such, I am happy
to continue to publish such work here, as well as the subsequent
discussion, as Mark's excellent submission above. Mod.]


End of Volume 48 Issue 54