Shabbos 149 Gambling in Halacha and opening function-halls during the Corona Crisis

The Mishna at the bottom of 148b tells us that it is permitted to cast lots with one’s family members on Shabbos to see who gets which portion, which will presumably prevent fighting over them.

I happen to be particularly sensitive to my children fighting over food portions, and am rather strict in insisting they avoid doing so, after all is it really fitting for thankfully relatively well-off children to be fighting with each other over who gets the thicker piece of salmon when so many people are hungry?

It is appropriate behaviour for frum children in the first place, even if they are relatively poor?

Yet this seems to be an old problem amongst kids and Chazal took a realistic view to dealing with it- rather than ignoring the problem or tackling it head on, they suggested a simple fair solution.

However, despite the lofty goal of keeping peace in the home, the Mishna attaches a key condition- one may not intentionally make one portion larger than the other and draw lots on the larger portion- one has to at least attempt to make the portions equal.

The Gemara rules that drawing lots on different sized portions is forbidden even during the week because of קוביא (gambling.)

The Mishna (Sanhedrin 24b) includes a gambler in the list of people who are unfit to be witnesses.

Rabbi Yehuda comments that this is only the case when the gambler has no other trade/profession other than gambling.

It is not immediately clear whether Rabbi Yehuda and the Chachamim disagree on this point, or whether Rabbi Yehuda is simply clarifying the position of the Chachamim.

The Gemara asks what issue the Mishna has with a gambler, and 2 opinions are given:

  1. Rami bar Chama explains that gambling is a form of אסמכתא (a transaction based on incorrect assumptions) which are not valid.

He seems to argue that when a person gambles, he is convinced psychologically that he will win, and it is on that basis that he agrees to the terms of the bet/lottery.

Although this might seem far-fetched, this is particularly common with habitual gamblers whose addiction keeps pushing them to try “one more time.”

When he fails to win, the transaction is invalid, and the winner is considered a form of thief if he takes the money.

Rav Sheishes disputes this ruling and holds that such a transaction is not a valid example of אסמכתא seeing as the gambler is still fully aware that he might lose and chooses to take the chance.

He explains that the reason the gambler is not fit to testify is not because he has committed a form of theft, even at a rabbinical level, but because he isn’t עוסק בישובו של עולם (he does not busy himself with “settling” the world.)

This fits in with Rabbi Yehuda’s view in the Mishna that only a gambler who has no other profession is unfit to be a witness.

According to this view, while gambling might not be a prohibited act as such, it is a non- constructive profession that does not help build society in a positive way.

A person who does not engage in a constructive profession is simply not a trust-worthy witness, perhaps because he does not take people’s needs and property rights seriously enough.

There is much to analyze and debate, both in the text of the Gemara and in the Rishonim, regarding the scope of both אסמכתא and ישובו של עולם , as well as the reason and nature for the gambler’s disqualification as a witness, but we will focus for now on what appears to be the most simple interpretation of the debate:

According to Rami bar Chama, and the Chachamim of the Mishna according to his view, anyone who gambles is unfit to be a witness as he is a form of thief.

According to Rav Sheshet, and Rabbi Yehuda in the Mishna, only a professional gambler with no other profession is unfit to be a witness- in contrast, the casual gambler has done nothing wrong and is certainly fit to act as a witness.

Back to our sugya in Shabbos, it seems that our Gemara holds like Rami bar Chama that gambling is indeed forbidden even if one has another profession.

As it is usual in case of a debate in one sugya where the סתמא דגמרא (undisputed assumption or ruing) in another sugya supports one side , it thus seems appropriate to rule like Rami bar Chama and forbid even casual gambling, as well as disqualify the casual gambler from being a witness, until he has repented and stopped gambling.

Furthermore, a different Mishna (Rosh haShana 22a) gives a similar list of people who are invalid as witnesses, and does not record the lenient view of Rabbi Yehuda- the Gemara there understands that they are all forms of rabbinical theft, which seems to support the view of Rami bar Chama as well.

This is indeed the way the Rambam (Gezeila veaveida 6/10, Mechira 21/3) appears to rule (though compare Eidus 10/4 and Shabbos 23/17) and the Shulchan Aruch (C.M gezeila 370/1-3) is also generally understood to take this view.

However, based on the continuation of the sugya in Sanhedrin, it is clear that some Amoraim are of the view that Rabbi Yehuda and the Chachamim agree that casual gambling does not disqualify one from testifying, and even though Rami bar Chama disagrees, there is some logic in following those Amoraim who do not see the Tannaim of the Mishna as arguing, particularly as both Rabbi Yochanan and Rabbi Yehoshua ben Levi take that view.

This is the way that the Tur and the Rema rule, essentially making normative Ashkenazi halacha more tolerant of casual gambling- interestingly enough, the Rif also takes this lenient view, and it is somewhat surprising that the Shulchan Aruch rules like what is really an ambiguous Rambam against a clear Rif and Tur.

However, there is another way to reconcile the sugya in Shabbos that forbids casual gambling with the view of Rav Sheishes in Sanhedrin who says that it is not considered אסמכתא and does not disqualify one from being a witness.

We could suggest that even Rav Sheishes agrees that casual gambling is rabbinically forbidden. However, he holds that it is not enough of a sin to disqualify one from being a witness.

Instead of rejecting the prohibition of casual gambling completely, Rav Sheishes’ statement would then simply be interpreted as pointing out that it does not qualify as אסמכתא on a biblical level.

He could thus still hold that only a professional gambler with no other profession is included in the Mishna’s disqualification, without permitting casual gambling.

If we learn like this, our sugya in shabbos could also work according to Rav Sheishes- casting lots on different sized portions is indeed a form of gambling and rabbinical theft and thus forbidden even during the week, but might still not be something that would disqualify one from serving as a witness.

This approach would make it easier to rule leniently like Rav Sheishes and only disqualify professional gamblers as witnesses, but would at the same time be taking a stricter form of Rav Sheishes’ view and concluding that even he agrees that casual gambling is forbidden, shutting the door on permitting casual gambling.

Could this possibly be the real view of the Rambam, some other Rishonim, or even the Shulchan Aruch?

It certainly would help reconcile the above-quoted view of the Rambam that gambling is forbidden as a rabbinical form of theft with his words elsewhere which say that only the professional gambler is unfit to be a witness.

This is indeed close to the approach of the Vilna Gaon, who actually deletes the phrase כל כי האי גוונא לאו אסמכתא הוא from the sugya in Sanhedrin and seems to understands that Rav Sheishes agrees that it is indeed a rabbinic form of theft, just not enough to disqualify one as a witness.

In practise:

Most contemporary Sephardi authorities forbid all forms of gambling including lotteries and consider them a form of theft.

Most mainstream Ashkenazi authorities, while discouraging gambling, do not forbid it out-right on a casual basis.

All authorities agree that someone whose sole profession is gambling is unfit to be a witness.

Mussar:

The idea that the professional gambler is unfit as a witness because he is not engaged in constructive pursuits, is understood in various ways in the Rishonim, and a more complete analysis of the subject obviously requires a through study of all these views.

Yet I cannot help but be bothered by the idea that the modern-day wealthy philanthropist who owns many casinos, employs huge numbers of people, keeps the laws of the land with everything on the books, and supports countless charitable causes, including many Torah institutions, could be invalid as a witness if this is the main way he made/makes his money.

Can he truly be regarded as someone who does not respect other people’s money, and is likely to lie under oath, when he clearly does so much good for society as well?

Without ruling on this issue, given that this does in fact appear to be the default law, there appears to be a powerful message behind this halacha- not only does the end not justify the means, the means doesn’t even justify the means!

A profession which does so much damage to society as a whole and ruins countless lives cannot be justified simply because it creates work for many other people, or because so many of the proceeds go to charity.

Although it is questionable whether this concept could be extended on a halachik level to other areas of business that do more harm than good to society, such as cigarette manufacture and sales, and possibly even alcohol, at an ethical level there is certainly a comparison.

Just like it is clear, or at least has been till recently, that people who sell dangerous drugs are not to be praised just because they create employment for others who work for them, or give some of the proceeds to charity, anyone engaged in industries that are mainly harmful to the public should be very aware of the serious ethical and probably halachik issues they face.

Current Affairs and food for thought:

During the current Corona Crisis in Israel, one of the justifications for allowing high-risk businesses such as function-halls to reopen, is the fact that they employ many people and help support the economy.

If these events are essentially endangering society’s well-being, are these arguments not irrelevant , and should we not say that people who open such businesses at this dangerous time are at least on an ethical level, not involved in constructively building the world?

Law versus Spirit? Rosh haShana/Yom Kippur during or (hopefully) after Corona peak.

As the real fear of having to spend the Yamim Noraim davening in small minyanim at shul ( for the lucky ones), in street minyanim in the extreme Israel heat, or at home seems more and more likely , I suggested yesterday to my wife that our street minyanim should be held early in the morning without the piyutim , Gra style.

For those unaware, the original Talmudic version of the Rosh haShana davening and in particular, chazan’s
Repetition, was much shorter than ours, and other than having 3 extended middle brachot rather than the shorter middle bracha of a regular shabbos and Yom Tov, shofar on Rosh haShana and Vidui on Yom Kippur, was pretty similar to a normal chag.

Over the years, and rather controversially at first, many additional piyutim ( poems) were added by great people and the introductory piece מסוד was written to ask permission to deviate from the normal prohibition against adding to the Amida before saying these piyutim .

These piyutim became an essential part of the traditional davening for most of us, to the point that so many of them, like Unetaneh Tokef and Vechol Maaminim, have come to represent the essence of these special days to us .

Yet As recently as the Vilna Gaon, there were authorities that refused to accept these novelties in the body of the amida and simply left them out, and although the mainstream halachik view has accepted and even encouraged their inclusion, it is clear that they do not have the same halachik status as the original 9 brachos themselves , or the mitzvot of the day such as reading the Torah, shofar ( on Rosh haShana), and Vidui on Yom Kippur.

As such, i figured that given the difficulty and possible danger of being outdoors in the sun for 7 hours in the extreme heat , this year could possibly be a year for all of us being “Gra’niks” , doing the essentials together early while the heat is still relatively bearable, and spending the rest of the day saying/singing piyutim with our families and learning.

Of course, I would never make such a decision on my own, and noone would listen to me anyway, but
I just saw a post by Rav Ysoscher Katz drawing attention to a ruling by Rav Schachter below , who uses similar, though admittedly not the same logic, to suggest that shuls that are limited to a maximum number of people hold multiple short minyanim without the piyutim.

In a perhaps typical litvak/chasid debate, Rabbi Katz takes issue with this, on the basis that pure halachik considerations are not the only factor here, but the spirit of the day is equally important, and the damage done to that by such a drastic action, is not worth it- he says he would rather do everything in his home with the family in the absence of the minyan.

Rav Schachters ruling is based on allowing more people to be able to daven with a minyan in shul, and not on allowing minyanim that are already in the street to be shorter and more barable in the heat, and it is unclear whether he would view the comfort factor in the same light.

Yet the extreme heat we experience in Israel during this time of year is not simply a mild discomfort, but can cause extreme suffering, certainly not in line with the simchas Yom Tov which is required on Rosh haShana , as well as sunburn ( where there are not sufficient shady solutions), and dehydration, and can even be dangerous.

On Yom Kippur while fasting, this is even more the case .

As for Rav Katz’s considerations , i tend to believe that the compromise solution of saying piyutim with the family later can allow us to fulfill both minimal halachik and spiritual requirements, if indeed there is a clash here, a discussion I shall avoid for purposes of this post .

Would love to hear thoughts on this .

Shabbos 82  Health and safety  matters (excuse the pun)

On this daf, we are told how Rav Huna asked his son Rabbah, why he did not go to learn anymore by Rav Chisda, who was particularly sharp in his learning.

Rabbah replied that Rav Chisda used to always teach them “worldly matters”, and he preferred to focus on only Torah during his studies .

For example, he used to tell them that when one goes to the toilet, one should not sit down too quickly or push too hard, as it could cause injury .

Rabbah’s response was that he was teaching him matters of health (the life of people ) , and that was even more reason to go learn with him!

The most obvious explanation of this is that the Torah commands us to look after one’s health and safety and avoid danger, in the passuk

 ונשמרתם מאוד לנפשותיכם ( be very careful with your lives.) ( Devarim 4/9) 

The Rambam is generally presumed to hold that anything one does that is bad for one’s health or a danger to his life will usually be a transgression of this Mitzva ( See for example  Hilchos Deos chapter 4 and Rotzeach ushmiras hanefesh chapter 14 and 11/4, though he might also have other sources for this- another discussion for a different post, perhaps )

If the Rambam’s definition is correct, than anything which is health or safety related is part of this Mitzva and thus considered Torah, so Rabbah’s claim that he preferred to focus on “Torah” was ill informed, seeing as this very much WAS Torah !

In truth though, even if this particular passuk is not referring to avoiding physical danger, but rather spiritual danger as in its context (see Torah Temima on the passuk for different views on this ), there are plenty sources that avoiding danger is a Torah requirement, and in fact that it is MORE important than avoiding sin (חמירא סכנתא מאיסורא -see Chullin 10a.)

However, if one takes a more careful look, one still needs to explain :

1. What was Rabbah was initially thinking?- did he really not know that looking after oneself is a Torah requirement?

2. Why does Rav Huna say that it was even MORE reason to go? If health and safety is just another Mitzva , then why should it be even more important than learning Brachos  or Shabbos or Yevamos?

This is only one of many statements of Chazal that venture into the realm of health and medicine, to the point that one often finds what seem like clear contradictions between the views they express and those of modern medicine (more on this perhaps in a different post.)

In order to address this problem,  Rabbeinu Avraham son of the Rambam (Maamar al Derashos Chazal)  tells us that such contradictions should not worry us, as Chazal did not get their medical knowledge from any form of Torah  tradition or prophesy, but rather based their advice on the medical knowledge available to them at the time.

The Rambam himself wrote similar things regarding Astronomy (Moreh Nevuchim 3/14.)

Perhaps precisely for this reason, Rabbah was of the view that medical issues should be left to the doctors and Rabbis should focus on teaching Torah only, stating the mitzva to look after oneself , but not going into the practical details, which one should rather learn from the doctors of the time .

Rav Huna, however , knew that if Rabbis don’t take health matters seriously and teach it to their Talmidim, the talmidim won’t take it seriously, and it is therefore their absolute obligation to become as familiar as they can with the medical knowledge of the time, and under the guidance of their medical consultants, drill it into their students .

Alternatively, perhaps Rabbah held that such details, being subject to change as medical knowledge develops,  cannot be part of a timeless Torah ,that never changes .

Rav Huna taught him that although the facts and knowledge one has available to apply to the Mitzva might change , the Mitzva itself is timeless and part of that timelessness is the need to constantly apply new knowledge to how it is carried out.

In fact, Rav Huna might be suggesting that studying  a theoretical mitzva  which does not include practical ways of fulfilling it in each time and environment, is an inferior form of Torah study itself .

As such, he tells his son, destined to become a leading Amora in his own right , that on the contrary, the fact that Rav Chisda doesn’t just teach the mitzva out of context, but emphasizes the  contemporary wisdom required to carry it out in each place and time, is EVEN more of a reason to learn by him, as such Torah is actually superior – it is not enough to learn about the Mitzva of being healthy- one has to study health itself in order to be able to fulfill the mitzvah properly , and that is not a secondary level of Torah, or a mere הכשר מצוה , but Torah itself !

This also explains the Mitzva of learning astronomy which we discussed in a previous post re כי היא חכמתכם ובינתכם , and is summed up incredibly by the famous statement of the Vilna Gaon  that “all categories of (secular) wisdom are required for our holy Torah and are incorporated with it” (See  “הגרא” מאת דב אליאך   chapter 19 for references and detailed discussion)

And while it could be argued that this is only necessary later in life once one has completed a basic understanding of Torah , perhaps also the initial feeling of Rabbah bar Rav Huna, it seems that Rav Huna was teaching him that, on the contrary, one has to study these wisdoms in one’s youth, at least as they come up, in order for one’s learning to be of a more superior quality!

P.s. one could go a simpler route and argue that Rav Huna was simply teaching his son that looking after one’s health is NOT just another Mitzva, but more important than other Mitzvos, given the precedent of וחי בהם and pikuach nefesh,  but one would then have to explain how Rabbah bar Rav Huna was not aware of such a simple principle such as “danger is more severe than prohibition .”

In light of recent events where we have seen plenty people who learn regularly but seem to be unaware of this rule, at least on a practical level, that might seem less far-fetched  than our initial feeling, but I would still rather not attribute such a view to any one of the Amoraim, even in their earlier years of study !

Shabbos 81   Toilet paper shortages 

One of the most challenging aspects of Gemora study today is being able to step into the environment in which Chazal lived – the agricultural and pre medieval jargon often feels irrelevant to us and makes it harder to internalize the timeless laws and values that they teach us.

As hard as it is to identify with an ox goring a cow, or share cropping, it is even harder to identify with areas of halacha that seem to assume an extremely primitive lifestyle .

For example, so much Talmudic discussion assumes that nighttime was a time without good lighting, and unsuitable for many activities, and candlelight was often an unreliable  luxury. 

When the Gemara (Brachos 2) assumes that poor people eat dinner early, due to not being able to afford candles to eat by, or discusses what to do when the candles go out during the Shabbos meal ( Pesachim 101a ) , it is kind of hard to identify in an era where electric light is taken for granted in all but the most undeveloped regions .

Yet sometimes, Hashem puts us in situations, where we suddenly able to identify with the sugya- the regular power outages in today’s South Africa, for example, which seem to love shabbos evening in particular, or those experienced even in modern New York in the aftermath of hurricane Sandy , suddenly showed us how we cannot and shouldn’t take it for granted – I am not saying this was Hashem’s reason, chalila, but there is no doubt that we are expected to learn whatever logical lessons we can from situations he puts us in .

One of the ” lighter”  though still depressing  moments during the horror of the Corona outbreak was the pictures of shoppers from Australia to Israel hoarding toilet paper, often leaving the shelves bare .

The prospect of running short of such an essential commodity in modern times in a modern country was incomprehensible prior to this pandemic, but we soon realised that nothing is to be taken for granted .

The truth is that for most of our history, toilet paper of the modern kind did not exist, and we seem to have managed just fine.

In fact , until recently, having one’s own built in toilet in the house was not the norm, and people used to set aside a demarcated area as an ablution spot, sometimes in ones courtyard and sometimes out in the fields .

This was often fraught with embarrassment and sometimes danger, and we were faced with all kinds of questions  regarding davening near a “toilet”, where to leave one’s Tefillin ( which people wore all day), how to ensure modesty, protect against the many demons that were believed to hang out in such places, and of course, on our daf, how to use one on Shabbos.

Finding a suitable toilet was often such a challenge , that in searching for the meaning of the biblical phrase “לעת מצא” – a Eureka moment , one of the Amoraim applies it to the moment one finds a suitable toilet  (Brachos 8a) – something hard to appreciate today, but that those of us who have spent hours on safari or driving through India, can certainly identify with more easily .

On our daf, there is a halachik discussion as to how to carry stones on shabbos required for use as “toilet paper.”

In the absence of that most essential of household commodities, the norm was indeed to use a stone, or perhaps a reed, for cleaning oneself .

Although such a discussion might have seemed mundane or even comical to us “moderns”, it is incredible how this suddenly seems more understandable after the events of this year.

Issues discussed include how to carry  below the minimum amount required to become liable for punishment , how to avoid the concern of tearing out grass, how to bypass the problem of Muktza, and of course the very important factor of כבוד הבריות ( human dignity ) and how it can push aside rabbinical prohibitions 

We daven that we shall merit to appreciate the daily things we take for granted, as well as  the wisdom of every word of the Torah, without having to be put in difficult and unimaginable circumstances chalila in order to do so!