Hyman Tuchman

REVIEW OF RECENT HALAKHIC PERIODICAL LITERATURE

SPECIFIC PERFORMANCE ly be pecuniary, through the impo- sition of penalties or an obligation An interesting analysis is made to pay damages by the party which by Dr. Z. Warhaftig in the Chesh- defaulted. But the contract could van-Kislev, 1958 issue of SiTUi of not assure nghts of any sort to the "Specifc Performance of Contracts" object itself with which the contract in Jewish Halakhah as contrasted was concerned, certainly not by with the curent secular law in Is- compelling the part to the contract raeL. Can a part to a contract be to produce the object, to hand over compelled to carr out its provi- the property...... Transfer of own- sions, or is a monetary penalty the ership occurs simultaneously with only recourse against the defaulter? the agreement to sell or else the As we know, Israeli law denves contract does not afect in any way to a great extent from English law the fact of ownership:' which was introduced into Palestine In English law however the in- after England obtained possession stitution of "specifc performance" of the country under the mandate. of a contract did develop as part of The author, himseH a learned attor- the doctre of equity which "recog- ney and a member of the Israeli nized that not in every case could a Knesset, states that in the event a monetary payment suffce to com- contract is not honored, most legal pensate the part desirng penorm- systems require only the payment ance of the contract. Neverteless, of a penalty stipulated in advance specifc penormance of a contract or the payment of damages. Thus, remains in theory a remedy second- Roman law and the European sys- ary to that of payment of damages. tems derived from it "recognize "Where payment of damages wil money payments as in fact the only fully compensate the innocent par- means of compensation for non-ful- ty, he cannot request specifc per- fillment of a contract. This attitude, formance:' As a result, specifc per- we are told, stems from the Roman formance as a remedy is left entie- concept of ownership which was al- ly to the judgment and discretion of ways regarded as absolute and un- the judge who decides whether or qualied. "Roman law did not tol- not the contract is of the kind where erate limits on ownership, whether payment of damages will constitute created by contracts or by other ob- compensation in fulL. In contracts ligations. Consequently, the result dealig with the transfer of land, of contractual agreement could on- the court wil "almost always apply 145 TRADITION: A Journal of Orthodox Jewish Thought the principle of specifc perform- ties. To establish validity, Jewish ance:' law requires an act of kinyan, the At first, the courts in Palestine affrmation of the validity of and in Israel, once it gained its inde- the contract by a symbolic act by pendence, attempted to liit the the partes to the contract. English concept of specific performance to and Israeli law too require that a "contracts dealing with the sale of contract must be legally valid if real property and even then only specic performance is to be com- when the contract was legally valid, pelled. The contract must in these where the entire price had already systems be in writing. However, if been paid, and where the purchas- a beginning has already been made er had already taken possession of in carrying out its terms, the con- the purchase; or where a beginnig tract can even be an oral one. had already been made in carng In Jewish law, most authorities out the contract and payment of do not require transfer of the prop- damages did not appear to the court erty to the purchaser at the time the suffcient compensation to the party contract is entered into. In Israel desiring fulfllment of the contract:' too, the Supreme Cour does not re- Later, partcularly after the estab- quire such transfer of the property lishment of the State, Israeli courts as a condition for specific fulfllent no longer insisted on the conditions of the contract. that the purchaser already be in In Jewish law, payment of the possession of the land and that he sales price has no bearng on the va- must have already paid its price in lidity of a request for specific per- full. The courts instead accepted the formance of a contract. "If the con- principle that in contracts involving tract is valid, made so by an appro- land transactions, damages cannot priate kinyan . . . then the contract equal the loss of the land. is effective and its performance can The Halakhah on the other hand be compelled even if the purchaser recognizes the institution of specifc has so far paid not even a penny of performance as a fundamental con- the purchase price." English and Is- cept of its legal system. In the Tal- raeli law, however, require payment mud, Avodah Zarah 72a, we read by the purchaser of the entire sum of a case of a person who makes a specmed in the contract of sale, be- contract to sell an item to another at for a request for specifc perform- an unspecified time in the future. If ance is to be honored. "The order the contract specifies the price, and compelling performance of a con- it is understood that the sale is inde- tract is designed to complete the pendent of the future wilingness or fulfllment of a contract whose par- unwilingness of the seller to sell his tial performance began with the property, then such a contract is le- payment of the prices specified gally valid and must be carred out therein." (and financial compensation is in- In contrast to other legal systems, suffcient). Jewish law compels Jewish law does not grant "unlimit- specmc performance of a con- ed rights of ownership. Only God tract wherever a valid contract has has unlimited rights. The nghts of been entered into between the par- man as an owner are limited and re- 146 Review of Recent H alakhic Periodic Literature stricted. There are kinds and de- MEDICIES ON PASSOVER grees of ownership. Therefore, it is possible to obligate oneself, by a In the Ha-pardes of Nissan, 1959, contractual agreement, to liit Rabbi 1. B. Ness discusses certain one's exclusive rights of ownership. aspects of the laws of Passover as A mortgage confers property rights they relate to medicines. An indi- in the property to the mortgagee. A vidual whose lie would otherwise self-imposed obligation to sell limits be endangered by his ilness may of in some measure the property rights course use, for medicinal purposes, of theowners.. .. .The expected re- even during Passover, material con- sult of a contract is that it should be taining chametz (Leaven). The performed as is. Only where ths is Torah is a law of life and permits not possible can we substitute com- such deviation where life is jeop- pensation and penalties agreed up- ardised. - on in advance, or the payment of But what is the law with regard damages to which one becomes lia- to a person whose ilness requires ble according to law:' him to use medicines containing It is of interest that in the case of chametz, not to preserve his life but contracts for personal services, such to relieve him of otherwise constant as the performance of labor, specifc pain and bodily distress? The par- performance cannot be compelled. ticular case discussed concerns an "The source of this halakhah is the il person for whom his doctor has principle that 'To Me are the people prescribed certain pils and who of Israel slaves' (Leviticus 25:55) has been using the prescription for and not the slaves of slaves:' There- some period before Passover. fore a worker can abandon a job he Jewish law is quite lenient with has agreed to perform even if non- substances used for medicinal pur- performance should lead to mone- poses. Thus, for a sick person who tary loss. Of course, in such a case, is not in any mortal danger, most the worker may have to pay for the materials forbidden to a healthy damage caused. However, "com- person may be used medicinally. pelling a person to work even in the The only condition to be met is that name of fulflling a contract smacks the substance must not be used or of servitude:' eaten in its customary fashion. (Of This principle is found in English course, as stated, where life is in law too and was first expressed in danger the invalid may be given an English cour in 1890, some any substance in any manner pre- 1700 years after its appearance in scribed by the doctor.) Jewish law. In the United States al- Rabbi Ness states that most tab- so one may not.compel the specifc lets are coated with sugar or choco- performance of a contract dealing late to disguise the taste of the pre- with personal services. This is con- scription itself and that this coating sidered a violation of the 13th is applied to the tablet with a paste Amendment to the Constitution of flour and water. Are medicinal which forbids involuntary servi- tablets in the same category as al- tude. monds coated with sugar, which are forbidden on Passover because the 147 TRADITION: A Journal of Orthodox Jewish Thought coating is applied with a Hour and is produced by a non-kosher crea- water paste? . ture. Royal jelly is not honey, but Rabbi Ness notes that since the rather a natural secretion from the Hour paste on the pils is actually stomach of the bee and should eaten and is tasty, it must be con- therefor fall into the category that sidered a food and should be ad- "all which issues from a forbidden judged chametz. He therefore sug- source is itself forbidden:' gests that before Passover, each pil Rabbi Efrati cites the basic tal- be broken into several parts and the mudic sources and, after a detailed pieces inserted into a celluloid cap- analysis, concludes that royal jelly sule. In this way, no part of the orig- fals into a permissible category, inal pil will touch the mouth or since the Talmud teaches that "one palate of the sick person. Therefore, may not eat a non-kosher Hyig this manner of swalowing the pil creature, but one may eat what it may be considered diferent from brings forth." the normal fashion of eatig sub- Rabbi Efrati is of the opinion that stances since the palate receives royal jelly is permitted even by. "neither taste nor pleasure from the those authorities who would not ap- medicine" and is permissible for ODe ply the above halakhic principle, who is il. because: Rabbi Ness adds that non-coated 1) The royal jelly is bitter, and pils which are bitter to the taste since it does not improve the may be swallowed as they are on taste of the honey with which it Passover by a sick person. Such tab- is mixed it is permitted. lets are generally made, he says, of 2) We can apply a more lenient synthetic materials which are not halakhic ruling, since the Tony leaven. In addition, the bitter sub- Royal is used for medicinal pur- stance which has been added to poses. As noted in the previous these pils qualies their consump- section, almost any substance tion as "not the usual manner" of may be prescribed, if necessary, eating or using them. for even a minor ilness. Conse- quently, though we would gen- ROYAL JELLY erally reject the decision of a solitary scholar, in ths case we In the Sivan, 1959 issue of Ha- can avail ourselves of it, since pardes, an interesting curent ques- we are here concerned with an tion is discussed by Rabbi S. Efrati area which is more permissive, of Jerusalem. Does Jewish law per- that of healing the il. The schol- mit the use of "Tony Royal?" Tony ar in this case is Rabbenu

Royal is presumably used for medic- Yonah who permitted the use of inal puroses and consists of a mix- honey into which some forbid- tue of honey and royal jelly in an den substance fell "because approximate proportion of one part honey has the tendency to trans- of royal jelly to 35 parts of bee hon- form whatever falls into it to ey. The Torah teaches indirectly honey. .. that honey is kosher, even though it

148 Review of Recent H alakhic Periodicl Literature HEBREW PRONUCIATION accustomed to him and to the de- fects, he is permitted to do so. In Sinai, Adar II 1959, Rabbi Essentially, all the reasons cited Y. J. Weinberg discusses the ques- in the Halakhah for disqualifying an tion of the Sephardic pronunciation individual whose pronunciation dif- of Hebrew. In areas where the con- fers from the norm derive from the gregation is accustomed to the Ash- fact that the pronunciation in ques- kenazic pronunciation, may a Bar tion is incorrect. "But this is not the Mitzvah who has learned Hebrew case with the Sephardic pronuncia- according to the Sephardic pronun- tion which is the most precise:' ciation read the Torah? "In the case of a Bar Mitzvah The Talmud in Tractate Megillah who wishes to read the Torah, there 24b forbids a Kohen who cannot should be no objection, first, be- pronounce the words correctly to ut- cause we are concerned here with ter the Priestly Blessing. The rea- the mitzvah of educating a child son given by the commentators is Jewishly, and second, for the sake that as a result of his mispronuncia- of communal harmony:' tion of certain letters, the Kohen may utter a curse in place of a bless- ing. "The diference between the MICROPHONES ON THE SABBATH Sephardic and the Ashkenazic pro- The Nissan 1959 issue of Ha- nunciations is not so great that it darom, the halakhic joural of the can cause a word signifYing blessing Rabbinical Council of Amei:ca, pre- to sound like a curse or lead to blas- sents an interesting three-pronged phemy or profanation. Indeed, the discussion of the halakc problems opinion of experts that the Sephar- involved in using a microphone on dic pronunciation is superior in the Sabbath. The discussion was many respects to the Ashkenazic, is precipitated by an article in the Elul now generally accepted." 1958 issue by Rabbi M. M. Poliakoff A person conducting the service who concluded that the microphone who mispronounces his words de- may be used in the synagogue if it means the dignity of the congrega- is completely arranged before the tion and is a source of derision. This Sabbath commences. cannot be said of one who uses the First, Rabbi S. Hibner analyzes Sephardic pronunciation "since we the earlier article by Rabbi Polia- are accustomed to it for at present koff. Prohibition of the microphone very many people come from Israel can be argued on several grounds who speak Hebrew with the Se- and Rabbi Hibner discusses these phardic pronunciation." Conse- in turn. quently, even if the Sephardic pro- 1) It might be argued that the nunciation were incorrect, it would voice effects a change either in be similar to the case of a Kohen the electric current flowing who has certain physical defects through the tubes in the micro- which normally would disqualify phone or in the electrc glow in him from publicly pronouncing the the tubes. However, Rabbi Hib- Priestly Benediction. But if the con- ner decides that we should rely gregation has become completely on Rabbi Poliakoff who studied 149 TRADITION: A Journal of Orthodox Jewish Thought

the technical construction and mons quite well without the aid functioning of the microphone of a microphone. and insists that no such changes 6) Rabbi Hibner's final reason for take place. prohibiting the use of the micro- 2) It is forbidden to construct an phone derives from the effect on object on the Sabbath. But using other Jews who wil be unaware a microphone on the Sabbath that the instrument had been set does not involve construction and turned on before the Sab- since nothing is fashioned, nor bath and wil conclude errone- are we confronted with an ob- ously that one is permitted to ject which must be assembled turn on the microphone on the on the Sabbath or whose use re- Sabbath itself. He compares the quires specialized knowledge. use of a microphone to the use 3) It is forbidden to complete or to of a mil into which one is for- perfect an object on the Sab- bidden to place grain just before bath. However, if the micro- the Sabbath so that it should be phone is arranged and ready to ground during the Sabbath. be used before the Sabbath, we Here too the action is automatic, cannot prohibit its use for this requiring no human aid. Yet it reason. is forbidden because passers-by 4) It is forbidden, on the Sabbath, who hear the mil in operation to draw forth sounds from any wil be certain that the grain instrument. Here, Rabbi Hibner must have been placed into the disagrees with Rabbi Poliakoff mil on the Sabbath. who limited this prohibiton to And he concludes: " 'Blessed is musical instruments and argued the man . . .who keeps the Sabbath that since the microphone is not from profanation' (Isaiah 56:2); a musical instruent, its use is that is to say, he who keeps the Sab- permitted. Rabbi Hibner cites bath in such manner so as not to authoritative opinions which cause its profanation either on his forbid creating any sounds, part or on the part of others, now or musical or otherwise, on any in- in the future:' strument especially designed to The second article in this sympo- produce sounds. sium is by Rabbi Poliakoff who re- 5) Rabbi Poliakoff cited as an ad- sponds to the criticisms leveled ditional reason for permitting against his first article by Rabbi the use of the microphone its C.D. Chavel, editor of Hadarom. role in facilitating the observ- Rabbi Chavel concludes the discus- ance of religious command- sion with a rebuttal of Rabbi Poli- ments, by aiding the congrega- akoffs defense. tion to hear the prayers and the Rabbi Poliakoff states that an sermon. Rabbi Hibner takes is- electric current is not to be consid- sue with this point too and cites ered a flame, whose kindling or ex- halakhic decisions to support his tinction is forbidden on the Sab- position. In addition, he points bath. In his analysis of the func- out that many congregations tioning of the microphone, he men- hear the prayers and the ser- tions that talking into it causes the 150 Review of Recent H alakhic Periodicl Literature electric current in some cases to be- Non-Jewish wine is of course for- gin and in other cases to cease, al- bidden to Jews. Does the admixtme though there is no effect on the of a small quantity of wine render glow in the cathode tubes. Further- the whiskies forbidden? . more, these electronic currents are Rabbi Teitz points out that "Civil invisible, even under a microscope, law which requires the label to list "which means that they are not all ingredients, applies only where considered in the slightest as sub- the added ingredients comprise at stantial materials" whose creation least 2M%-one fortieth-of the to- or manipulation might be prohibit- tal product. If the added ingredi- ed. ents are less than this quantity, for Rabbi Chavel contests all these example if they total only one forty- points and argues that even if elec- first, then the added materials are tricity is not a flame, it is forbidden overlooked and there is no need to to cause a flow of electrons or to list them on the label:' cause their cessation. He also dis- On this basic point, whether wine agrees with Rabbi Poliakoffs thesis is or is not added to blended whis- that the microphone is permitted kies, Rabbi Friedman disagrees and because it is not a musical instru.: gives the opinion of his late father- ment but only an amplifier of the in-law, an expert chemist and a de- voice. Rabbi Chavel cites authori- vout Jew, that "blended whiskey is ties who forbid the use on the Sab- precisely what its name indicates, a bath of any instruent which is mixture of two or three types of specifically designed to produce whiskey . .. and there is absolutely sounds, musical or otherwise. no reason to suspect the addition of (In addition to the question of the any forbidden materials:' violation of Sabbath law, use of the If wine is added to blended whis- microphone involves the problem key, it may only be kosher wine, of fulfilling the obligations to hear that is, prepared by Jews. Normally, prayer, reading of the Megillah, the if non-kosher wine had been added, Shofar, etc., by way of an interme- Jewish law requires that there be diary instrument rather than direct- sixty parts of kosher materials to ev- ly from the one performing the ery part of the non-kosher material service. ) in order that the latter be nullified. However, Rabbi Teitz would forbid BLENDED WHISKEY the product even in such a case be- cause "the wine is intended to In this issue of H a-darom there improve the taste and does not be- is also an interesting exchange of come nullified even if it is only one- letters between Rabbi B. Friedman thousandth of the total:' and Rabbi P. Teitz who discuss Rabbi Friedman makes a distinc- whether one is permitted to drink tion between a forbidden ingredient blended whiskies. The problem whose function is to produce taste arises from the practice, cited by in a substance which previously Rabbi Teitz, of adding a small lacked taste, and an ingredient add- quantity of wine to the whiskies in ed merely to improve the taste of order that they should mix well. an already tasty substance. In wine 151 TRADITION: A Journal of Orthodox Jewish Thought added to blended whiskey, the pur- deals with "The Settlement of Jews pose is to improve a taste which is in Egypt according to Halakhic aleady satisfactory. Therefore, a Sources:' The author, Israel Ta- proportion of one to sixty is suff- Shma, asserts that we need not go cient to permit use of the whiskey. to great lengths to show that Jews Moreover, the wine, if it is added, settled in Egypt as individuals and loses its separate identity, since we in entire communities, "from the perceive no taste of wine but only dawn of our history as an inde- the taste of whiskey. Therefore, we pendent nation until the present no longer need consider that wine day. Besides, at certain periods, is present in the mixture and it is Egypt was transformed into a ve- considered nullified. ritable center of Torah by those If 2~% of wine were added, the outstanding Jewish scholars whose proportion of forbidden ingredi- devoted disciples we consider our- ents would be only one to forty and selves to be and who established not the one to sixty needed for nul- their homes there. These things are lification. However, Rabbi Fried~ accepted and known to all. But man states that even if the manu- they are apparently in complete facturers of blended whiskies were contradiction to what we read in the to avail themselves of the opportu- portion concerning the king (Deut. nity afforded by law to add non- 17: 16), 'But he shall .not multiply kosher ingredients to their product, horses to himself, nor cause the peo- they would add several different ple to return to Egypt, to the end kinds of non-kosher ingredients and that he should multiply horses; for not 2~% of non-kosher wine alone. as much as the Lord hath said unto In such a case "we can apply the you, Ye shall henceforth return no principle that differing forbidden more that way: From this we learn items nullify each other" and the clear and specific prohibition to can be added to the kosher quan- return again to Egypt:' tity (so that the latter is increased). The Jerusalem Talmud in San- In this way each of the prohibited hedrin 10:9, explains this verse as fractions is nullified by a propor- meaning, "y Oll may not return to tion of 60 to 1. dwell therein, but you may return for trade, for merchandise, and for RESIDENCE IN EGYPT conquest." After citing numerous sources, Several interesting articles have the author concludes that "if one appeared in various issues of Ma- descends to Egypt for purposes of chanayim, a religious weekly for trade, even though this may require soldiers issued by the Chaplaincy him to settle in Egypt for a lengthy Corps of the Israeli Defense Army. period and to become somewhat es- The standards of the articles are in- tablished there, it is not prohibited variably high and make no conces- because it is stil considered 'for sions to mass appeal or to a desire purposes of trade.''' It is only pro- for popularity. hibited to live in Egypt "if settling In the special issue for Passover there has no connection with trade 1959, one of the many fine articles or making a living but one goes to 152 Review of Recent Halakhic Periodic Literature

Egypt because he is enamored of HALAKHAH AND THE MODERN AGE the land or its inhabitants, its ways, its climate, and the lie. It is my The May 12, 1959 issue of Mach- opinion that Maimonides and the anayim contains the response to a other great scholars, as well as the letter by the Israeli writer I. Burla Jewish communities who were who disputes the "Eternal Validity exiled there, relied upon this inter- of the Jewish Halakhah:' Mr. Burla pretation. For they went there for complains that religious authorities no other reason save the needs of in Israel "ignore the fact that in the livelihood and trade and hence their last 2,000 years a tremendous settling in Egypt was not forbid- change has occurred in the life of den." man in general and, in particular, in the life of the Jewish people. Do W ARF ARE ON THE SABBATH conditions of war, weapons of war, and techniques of war in our day In the issue of December 19, resemble the conditions and situa- 1958 of Machanayim, Rabbi Gide- tions of two thousand years ago? on Shammai discusses "Halakhic Certainly, so far as you are con- Fundamentals Permiting Warfare cerned, the Halakhah is eternal. I on the Sabbath," and states that the too admit this. The Halakhah is basis for permitting prosecution of eternal, but if the times change fun- military campaigns on the Sabbath damentally, if different basic con- is the verse in Deut. 20:20, "and ditions develop, then the Halakhah thou shalt build bulwarks against must include within its framework the city that maketh war with thee, . .. the new conditions and situa- until it be subdued:' From these tions; it must assess and weigh them last words we learn that warfare is and determine anew what the law permitted even on the Sabbath as is. Therefore, I maintain, our situa- is explained in Shabbat 19a. tion requires an entirely different However, prosecution of a war is approach. . . . The concept of a tele- not a commandment which one is gram of course did not occur to our obligated to perform. If it were, one earliest scholars and I have no doubt who is occupied in performing this that if they had thought of it or if commandment would be freed of it had existed in their time, they the obligation to perform other com- would have considered it in a dif- mandments which may conflict with ferent light. They would, to begin the prosecution of the military cam- with, have denied that there is any paign. "The Sabbath restrictions are prohibition against sending tele- thrust aside or relaxed where war is grams on the Sabbath, perhaps be- concerned, not because war is a cause it is not included among the mitzvah, a commandment, in its forty (sicl ) categories of labor own right, but by the very fact of which are prohibited on the war. The Sabbath simply does not Sabbath and therefore is not con- apply to activities of war, without sidered a forbidden activity. In ad- regard whether or not there is a dition, with reference to the army, command to wage war:' this prohibition against sending tel- egrams might, once in a thousand 153 TRADITION: A Journal of Orthodox Jewish Thought times, bring defeat and ruin:' be carefully analyzed: The answer to Mr. Burla is com- "1) A fundamental clarification of prehensive, written with a deep un- the technical and scientific derstanding of the bases of Jewish problems connected with the law, and offers a clear exposition of operation of the apparatus and the analysis which must be made of how it operates. modern problems facing IsraeL. The 2) A comprehensive and pro- anonymous writer states that as a re- found clarification from the sult of experiences gained in deter- point of view of the Halakhah, mining the Halakhah "in matters of using all the sources of the military security, war, and other vi- great authorities to establish tal services of the State which brook the meaning of the Halakhah no disturbance or interruption...I as it relates to the possibility of can state categorically that it is en- operating the apparatus on the tirely possible to base the daily life Sabbath when a question of in the State on the laws of the Torah State security is not involved. and the Jewish Halakhah. This is 3) A precise appraisal of the situ- said not from a theoretical and ab- ation from the standpoint of stract point of view alone:' the security of the State:' In his response to Dr. Burla, the The author states that from the author takes up a usual misconcep- studies of the Chief Rabbinate of tion in the minds of those unfamil- the Army, along the three avenues iar with the Halakhah who feel that outlined above, "there has become every new situation contains no ele- possible, from the point of view of ments which are familiar and must the Halakhah, a complete harmony be considered in a totally new light. between the needs of public securi- "Why is it important whether the ty and the demands of religious concept of the telegram occurred to law:' our scholars or not, since both the He concludes that "only on the sending and the receiving of a tele- basis of a reliable assessment of a gram involves writing which is defi- particular situation is it possible to nitely one of the thirty-nine cate- judge in each case. This is not the gories of labor prohibited on the place for generalizations or for su- Sabbath by the Torah, and since the perflcial analyses, as for example: operation of systems of communica- 'if it had existed in their time they tion involves, according to the data would have considered the matter in our possession, several other Sab- in an entirely different light: It is bath prohibitions. Clearly, if not for clear that there is no other way to the security problems which are in- reach a conclusion save on the basis volved in it, we should certainly be of specific, professional knowledge, required to forbid the sending of both in the realm of Halakhah and telegrams," in the sphere of State security, and In order to determine the halak- in the light of our responsibility to hot applicable to the operation on guard, with all our soul and with all the Sabbath of technical apparatus our might, our national and spiritual which may involve the security of independence, achieved at so great the State or affect other services vi- a cost in blood and by a vision so tal to the State, three aspects must exalted:' 154