.HILCHOS BEIN ADAM L'CHAVERO
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BOOK NUMBER 1
======Book 1, Topic 1 M'Dvar Sheker Tirchak R' Berkovits at Ner LeElef 28 Aug 09
Two sides of Bein Adam LChavero: 1. Chessed, lo sisneh etc. and 2. Business ethics.
After the tax scandals in the US, high schools are more open to have a course on business ethics.
To this end we will learn four topics related to integrity.
The topics of truth and falsehood are essential in teaching anything related to business ethics. The problem is that there seems to be hetterim and people conclude like they do by lashon harah (acc to Chofetz Chaim), it's muttar to lie if you have a goal.
In Beis Din
1. Shavuos 30b gives 13 cases learnt from the verse "mdvar sheker". Sfas Emes in Shoftim points out that in no other mitzvah does the Torah say to "distance" from something, and the counterpart is "justice, justice shall you pursue."
Without integrity, others don't know who you are, and you don't know who you yourself are, since you lie to yourself. This gemara lists cases that are not blatant lies.
Case 1. Do not defend yourself if you actually think you're wrong. Many stories are told of ingenious pieces of Torah to defend gedolei yisroel who made mistakes, and others who came up with such pieces to defend themselves.
Case 2. Jeopardising your own sense of what's straight is a lack of your own "distancing from falsehood." Case: there was something muttar but a slight deviation from the truth. R' Eliashiv said: "even though it might be muttar, do not corrupt your sense of straightness, since how will you learn honestly later."
Case 3. You know he's a thief, but since there were never two witnesses he's still a kosher witness. Even though I know it's true, and he's kosher in Beis Din, nevertheless I'm using a process in Beis Din that I know would not accept such a person if they knew he was a thief.
Case 4. The judge has a gut feeling that the witnesses are not telling the truth - the judge cannot rule since he must "distance himself from falsehood."
Case 5. You cannot remain silent when you know evidence against a rich litigant.
Case 6. He wants that the judges rule incorrectly, and then get honor by correctly. Here What's the difference between cae 5 and 6? In case 5 he wants the ruling to remain wrong permanently. In case 6 he wants the judgement to remain wrong temporarily until he becomes famous. (Maharal: if you keep quiet to have the poor litigant win it's muttar. Birkei Yosef: disagrees.)
You do not have to protest if you here something false and can keep silent, but you cannot remain silent if you have an agenda. In the halacha of tochacha we can discuss when to protest.
Case 8. We do not say that the ends justify the means and therefore cannot lie to bring about a gilgul shavua.
Case 9. Cannot protect yourself from a false claim in Beis Din by lying.
Case 10. Cannot lie even when you're right.
Case 11. Appearance makes an impression.
Case 12. It's much easier to lie when the other litigant is absent.
Therefore, in summary: Assur to lie when you're right. Assur to intentionally mislead even when you're not saying any false words, even if it's temporary and you'll tell the truth. Assur to remain intentionally silent with an agenda.
Outside of Beis Din
3. Why are we permitting saying "she's a nice bride" when it's not true? And in Beis Din it would be assur! What's the difference?
Conclusion: it's assur to lie outside of Bein Din, just that there are hetterim that do not exist in Beis Din.
7. Rambam: only regarding a Talmid Chachom does he say "mdvar sheker". This is just because a talmid chachom is careful in these halachos and others aren't careful.
8. Yad Haketanah: In Beis Din everyone is bound by absolure truth, and anything less is disgusting since you're using an instrument of justice to be unjust. But everyone should distance themselves.
9. Chinuch: The shoresh hamitzvah in a part (chelek) of the mitzvah.
12. Yeraim: The issur doraisa is only when you have an agenda, and there are consequences to another. But an inconsequential lie would not be assur doraisa since you're not tricking anyone, but one's words make it look like trickery and would be assur drabanan possibly and only muttar for shalom.
13. R' Yonah: it could be that even an inconsequential lie is doraisa, but we don't know.
Case: a made up story for no reason: Yeraim: assur drabanan. R' Yonah: assur, maybe doraisa. However, if it's for a good reason, such as diffusing a tese atmosphere to make a constructive meeting, you could make up a funny story about what happened to you on the way there, if there's no other way. 14. Chofetz Chaim: lying outside of Beis Din is doraisa according to all.
15. Aruch LNer: inconsequential lies, like calling someone up by the wrong name is an issur doraisa. Can a gabbai call up someone by the name he gives? Since it will be used as his name on the get it's a doraisa. R' Shimshon Hisrch in Horeb: makes a strong case to have every word that comes out of one's mouth be true.
16. Ran, Nedarim: exaggerations are a matter of vocabulary and not lies. So if everyone knows that 7pm on an invitation is actaully 8pm and everyone knows, then it's not sheker. But if someone thinks it really means 7pm, you have to tell them, then you're dealing with a sheker. You have to understand the vocabulary of the society. It depends on the message, not on the dictionary definition of the words.
17. Sdei Chemed: If you call yourself rabbi, you have to know what that means in your society. And you have to no how the government defines rabbi, and whether they require that you have been ordained.
18. Sanhedrin: it sounds like lying for shalom and humility is assur and causes death.
19. Maharal: this place Kushtah is not geographic, but rathar a position. This amorah put himself a place where everything he said was absolutely true, and therefore "no one died before their time", which is a form of sheker. However, this amorah realised that modesty is more important than truth and thus has to remove himself from the place called Kushta.
In summary: In Beis Din misleading is assur doraisa. Outside Beis Din, misleading is assur (Aruch l'Ner: doraisa) and therefore a little white lie is a big fat lie. Where it doesn't make a difference it's muttar for shalom, modesty, making someone feel good about himself (in the case where he already made a purchase), or for doing a mitzvah (as in the R' Yonah) etc.
======Anochi Eisav Bechorecha I am Eisav Your Brother - Dealing with a Liar R Berkovits at Ner LeElef 4 Aug 09
From last shiur we saw that the mitzvah of "distance yourself from falsehood" means don't be silent b/c you like the idea of a certain falsehood prevailing, do not show up in the wrong place.
1. Pesachim: the non-Jew who took pride in eating from the korban Pesach.
2. Yomah: You're allowed to outsmart the thief with a lie.
3. Bava Metzia: there are different shitas rishonim as to what happened. Let's assume: the workers are to blame for my loss, either because originally there were other workers available, or once they start it's impossible for someone else to finish it. The case of the escaping prisoner: it could be a case of pikuach nefesh, but its placed with the previous gemara. Therefore, if someone is trying to advantage of you, you can lie to them even if it causes them a loss!
6. How does it work that Yaakov gets his whole future by lying to his father? R' Kaminetsky says that there are times it's the right thing to do to lie, like to a pursuer, and that Yaakov's lying was a nisayon. What's the real truth? Imagine if Eisav, with trapping in his mouth, would have convinced his father that he is the future of mankind? The blessing would have gone to a liar for all time! Allowing this to happen would have been the greatest perversion of truth. The truth is that the blessing should go to Yaakov!
However, all the gemara's in Shavuos go against the above principle.
7. Rashbah was asked: are you allowed to lie in Beis Din to get a better position, like to get a migo? Just like there are certain situations that mikkar hadin you could walk into a guy's house to take your object? Rashbah answers: assur. Does he mean specifically assur in Beis Din, or it's non-literal?
The Beis Din refers to a legal setting where one's words are a form of declaration. Therefore one cannot bend one's words in a legal declaration.
Cases: a legal notary public signs and seals that he witnessed that this person signed in front of me. This is his function. He may not sign if this is not the case according to the poskim.
Any time you make a declaration, or sign a form that says "I hereby testify that all herein is true ..."
Therefore in daily life one, and should outsmart a trickster, otherwise you are suppported sheker. But in a legal setting, you cannot lie. God runs the world, and He's put you in this position.
8. Sma: really it should have been muttar for the rebbe ask the student to stand outside of Beis Din, since it's outside of Beis Din. But since there's a risk that the other litigant may pay money that he really doesn't owe (b/c the rebbe was lying).
9. Rosh: where a non-Jew is taking something he doesn't deserve, if he discovers the lie, it could be a chilul Hashem because people will say that Jews lie.
11. Maharshal: if you're constantly outsmarting cheaters it is a lack of "distance from falsehood", even though in the larger sense you're bringing about truth.
Lying to outsmart a cheater is asur in the following cases: not with non-Jews can't be on a regular basis not with a child, i.e. can have him lie, or even lie in front of him (according to Sefer Titen Emes lYaakov).
Case: The taxi driver charges more than seems right. You can say: "this is all I have in my pocket" if you're absolutely sure you have your facts right.
Everyone feels they're right and everyone else is wrong. This is a very slippery slope, and one can only lie to a cheater after you ask a shailah. Unless the posek hears from the other side, or it's absolutely clear you're right, he may not paskun to lie.
Case: What if someone if prying for private information? You can lie. Chofetz Chaim says must lie when someone asks: "what do they say about me?" and it's all negative. To reveal the truth would be rechilus, so therefore lie, "they love you," but you couldn't swear in such a situation.
Case: A man wastes your time on the phone (he's a time extortionist): you can lie and say you're not home (but can't get a child to say the lie). You have to be careful that you don't owe him the time, i.e. can't do this if you said you'd do something for him, but didn't.
14. Orchos Tzadikim: instead of saying "he's not home" it's better to say "he's not available." I.e. when you're outsmarting a trickster, try to make your words accurate. R' Berkovits is concerned that such advice might teach you or your kids to play wordgames. When teaching kids about the Rashi on Yaakov and Eisav, ask them what the real hetter is? Ans.: because Eisav was lying, but not because of word games.
Questions: Arnona R' Eliashiv holds that any time you write on an official form it must be true, like arnona. He also says, if you can't claim the money from your parents in Beis Din, then it's not called "support". Unless your parents are paying directly to the baal dirah, or the parents tell you "this money is for rent", you can't claim that it's rent money.
Paying off the books: R' Eliashiv: muttar if the employer says "this is the salary I want you to pay me, and beyond that amount it is non-obligatory and I cannot claim it in Beis Din or court." R' Eliashiv says this works according to the law for arnona and income tax in Israel. R' Berkovits relies on this. However, for goyim it's only muttar if there's no risk of chilul hashem.
Telling airport security you packed it: R' Berkovits it's doubtful. Even if you acquire the item before packing.
Kesubah says that the chassan said "such and such" Everyone knows its the flowery language of the document, and really means "I accept all the terms of the contract" even if you have't said them or read them. This same applies to "terms and conditions" of a sale, or on a website.
R' Chaim Uri Freund made the chassan read off the whole kesubah.
======Hein Tzeddek - Reliability R' Berkovits at Ner LeElef 11 September 2009
When you tell someone "I'm going shopping" - what do you mean? Does it mean "I hereby pledge not to change my mind"? What if the weather changes, or I get a phone call? Do I have to fulfill what I say I will do, otherwise it's deceit? What if at the time when you said "I'm going shopping" you had no intention to go? Then that would be a lie.
1. Sefer Chinuch However, the Chinuch says differently. He contrasts taking vows with saying what you will do, and if you don't fulfill it, you're over on "distance yourself from falsehood." Even where you're not mechusar amanah (ie. unreliable), you're still not allowed to change your mind! And therefore you have to add a conditional clause to everything you say, like "...unless it rains" ?! The best answer is to say that the Chinuch means when someone is relying on you.
2. BM 44a Once you do kiyan: if it's normally lifted you have to do hagbaah, else, if it's too heavy, say a car, then driving helps. (In certain business settings, minhagei sofrim, or situmtah, like a handshake takes effect as kinyan). Once you pay: retraction gets mi sheparah and may not. But if one of them retracts it works, and Beis Din just announces a "mi sheparah".
3. BM 49a A verbal business deal: machlokess if you can retract. Hein tzedek either teaches: mechusar amanah for reneging or the issur of echad bpeh v'echad blev (kasha: why isn't this mdvar sheker? Unanswered.)
5. Ibid. Metanah muestes: no mechusar amanah.
6. Rif: there is mechusar amanah: you have just rendered yourself unreliable, untrustworthy. What are the consequences? Well other people will decide, and in heaven you have rendered yourself unreliable.
6, 7. Rif as explained by Rosh: Since there's a difference between merubah and muetes (where someone is trusting me and has th right to trust me and is not being naive), it can't be from the verse "hein tzeddek", b/c the verse implies respecting one's words as holy and unviolable (?) in all circumstances. We don't know what the source for the Rif's halacha is (we don't know if it's drabanan or doraisa).
8. Rashi: The verse "hein tzedek" teaches that one should fulfill one's words in all cases. Then why is matanah merubah not hein tzedek? Answer: in a matanah merubah, Rashi would need more than just words, b/c one's words just mean "I would like to give you this large gift". In other words, it's an issue of vocabulary, and a matanah merubah is not a dibbur.
Summmary: Rif: it's a trust an reliability issue, between man and man. Rashi: I have to respect my word, as understo od in the vocabulary of your culture.
9, Rambam He learns like Rashi.
10. Tosafos: paraphrases R' Yochanan. We understood that money transfer is semi-kinyan, and is semi binding. Yet he understands that words are a "kinyan gamur"
13. R; Elchanan Explains Tos: just like a kinyan kesef makes a mi sheparah, so too dibbur makes a kinyan. Oral transactions effect a semi-kinyan and can be cancelled by changes one's mind.
Even though one has the ability to back out, its still wrong to do so.
What's the psak and practical difference? Case: two people made an oral business agreement. The victim wanted Beis Din to declare the offender "mechusar amanah" in the hope that he would fulfill his deal. The records of the Beis Din show that it depends on the following:
Rashi and Rambam: it's bein adam latsmo. The baal din can't do anything even though you suffered. Tos and Rif: it's bein adam lchavero, and the victim doeshave the right to make a claim.
Most poskim go like Tosafos. Also R' Moshe brings Tos without the other side. With goyim: if you go like Rashi: still mechusar amanah, like Tos:
Unforseen Change In price or circumstance
Once money is transferred, acc to R' Shimon: buyer: can't retract and doesn't work unless there's a chnage in price because it was implicitly understood. seller: can retract even without trei tari.
There's a machlokess how to apply the above case of kinyan kesef to mechusar amanah:
Baal HaMor: can back out when there's trei tari or unforseen change in circumstances which makes the deal bad for you. So therefore the following have no mechusar amanah: I agreed to buy, and then I see a lower price elsewhere. I agreed to send to your babysitter, then I see one in my building. I agree to sublet for a certain time, and then I find out that a family member needs it. I invite someone to dinner, I can cancel if there's trei tari.
Rmaban: still mechusar amanah in trei tari.
Lmaaseh: if you want to back out, no one can stop you, and you'll be told "you're allowed to", but if you you ask "should I?", they say "it's not so straightforward". And some Batei Din will never publish that it's muttar to back out, but will tell you privately, "it's not assur." Of course, if the other party is mochel, no problem especially since we paskun like Tosafos that's it's bein adam lchavero. And even according to Rashi it works (?).
Promises So long as the word promise means something, you have to fulfill it.
16. Rabbeinu Yonah: When I agree without a promise: can back out of a matanah merubah. When I promise: cannot back of matanah merubah, and doing so is an avlah, it's wrong.
Agreements to a child: If you say to a kid you'll make him a bottle: if he falls asleep, no need to bring it to him, unless you purposefully wait for him to fall asleep. If you say you;ll give him a lolly and he forgets: must still follow through.
Words in one's heart Not only do I respect my words, I even respect my thoughts. This is a high level. This is not bein adam lchavero.
18 Maharsha: acc to Tos one's words create a kinyan. The Mordechai extends this: that to R' Safra his thought creates a kinyan, just like donations hekdesh are effected by thought, so too he held by day to day transaction, everything he dealt with was hekdesh.
L'halacha: someone that works like Rav Safra, the thought kinyan is effective. The case is: a chaver is someone who maasers food he buys and sells in E. Yisrael and doesn't rely on anyone else to do it. If you have a chaver who lives on the level of R' Safra,who thinks to buy vegerables in the market and then changes his mind, he will have to maaser it since his thought was a kinyan.
Summary Thought kinyan is not for the everyone. But one's words do effect a kinyan and is a reality by a matanah meutes. By trei tari if you back out no one will have claims on you. Promises, agreements to a child or poor person: cannot be backed out. R' Eliashiv stands for big world famous baalei tzedakah, and for R' Reuven Elbaz who was mekarev many people. As a talmid chacham you're allowed to stand for a baalei maaseh.
The Wolfson's sponsored meetings between US senators and rabbanim. Mr Wolfson walked in, and R' Berkovits stood b/c he's a baal maaseh. ------Kavod Ha'Rav July 21, 2008 R' Berkovits
Being cholek on a rebbe
2. Trumas HaDeshen: What's a raya that allows you to disagree with one's rebbe? Svara or textual proof? Arguing on a rebbe is not an error in how to read it, neither in svara aone (b/c daas Torah wins), but it's refering to being choek in how to learn up the gemara's, and we don't say that he's closer to Har Sinai, and therefore his pshat is better.
In Brisk they say, when the Rambam writes "nirah li", any generation after him can't be cholek, because he's speaking from svara. [ And since the SA was only machria between the three major rishonim (unless they don't speak on the issue, then he goes with other rishonim), but the Brisker's want to be yotze all the rishonim, so they say safek l'chumrah. And the Remah goes bassar basrei. ]
Rebbe instituted that you need permission before giving psak, so that he can make sure you'll careful. That you'll be clear enough in hora'ah that they won't get the confused
Paskuning in front of a rebbe
R' Berkovits was once standing 1 meter from R' Eshiav, and someone asked him a shaiah. He was shocked. The man said that R' Eliashiv "doesn't want to be asked". Was he right? And now within 3 parsa's, no one's allowed to paskun? Ans.: R' Eliashiv holds that everyone who doesn't paskun like him is making people err, and therefore forbidden with 3 parsa's. He wants his talmidim (who are well known) to paskun either like him, or according to their derech in learning.
On the other hand, R' Moshe didn't mind other people paskuning differently to him.
When in you're own in your house, it doesn't have shem hora'ah.
Case: someone asked R' Chaim as bassar b'chalav shailah, so he sent back a note, "I don't have smicha" and sent back a whole page with a list of mareh mekomos. Since there were other's who did have semicha, he didn't paskun.
Acc to SA: the issur is only to be fixed to paskun.
So today, there's an umdenah (halachic assumption) that R' Eliashiv doesn't have the resources or patience to paskun all the shailah's in the world, even though he was makpid that peole who don't paskun like him are in error. However, big shailah's go to R' Eliashiv, and they ask permission if they could give psak.
12. Pischei Tshuvah: you have to look up the answer in the sefer before paskuning (this is a big chidush, Aruch HaShulchan was against this). For example, R' Lerner was going for his smicha test in Yoreh Deah, and answered by looking up inside the SA, quoting this Pischei Tshuvah.
Smicha It's permission. And people today goto a total stranger. There's a separate one for hora'ah in issur v'hetter (the standard keeps going down, for example, only in the last generation you don't have to know tarfus and shechitah, Chassidim still do), and in dayanas.
To paskun today it's a minhag that you need smicha (called "smichas moreinu"). So too, you have to have a kabbalah (you need a bechinah and a letter) for shechitah, else you don't have a cheskas mumchah. So too for gittin.
The one who taught you how to turn Chazal in halacha l'maaseh, how to come to a maskanah that you can turn into a halacha, how to take a sugya and walk away with l'ma'aseh halacha.
------Chanufa Shiur from R' Yitzchak Boehm: March 2008
Notes:
Shaarei Tshuvah: chanufah is yaharog v'al yaavor, learned from the chachamim who flattered Agripas and who were thus chayiv for destruction. And ths case of Ulah (Nedarim 22a) is in private, thus not yaarog v'al yaavor, but the case of Agripas is public therefore more chamor (Orchas Tzadikim).
Tos: chanufah is not yaarog v'lo yaavor, learned from Ulah (Nedarim 22a). And the case of the chachamim is that they should have just kept quiet (Tos).
Shiur R Boehm: - flatttery is also a sheker. Elsewhere (midrash) we see flattery being permissable by a wife and student.
- we're dealing with saying that evil is good.
Yesod:
- Tos: the yesod of the issur is that you're more scared of the person than of hashem, as if the eye above doesn't see. - S. Tshuvah: he won't htink about it, and he'll repeat the aveirah. -Yeraim: it's only an aveirah if you're being machshiv the aveirah, but not b/c you're scared.
Why is it yaarog v'al yaavor? - R Moshe brings that giving over a false halacha is yaarog, so too by other cases b/c it's like teaching a false halacha. - R Eliashiv has an approach - Orchas Tzadikim: only in public since its hillul hashem. R' Hai Gaon says it's hillul hashem any time. - Yad Ketana: R' Yona meant only to endanger oneself in a rachok sakana, but not yaarog. - a mefaresh on R' Yona: the whole issur is not to be scared of people over hashem, i.e. to put oneself in mortal danger is the mitzvah, like going to war is a mitzvah even though there is sakana.
[Kasha on R' Yona: why isn't Yaakov bowing to Esav? Ans: he was bowing due to kavod to an ashir, not due to chanufah].
Halacha MA: it's not yaarog, like Tos., but you must lose money to avoid it. Remah: don't have to lose money.(?) MB (siman 156): he puts chanifah in inyanim, not in the list of prohibitions.
R' Yona's levels - first level is an aveirah, and is yaarog. But remaining levels are not yaarog, and may not be a lav, just an inyun. - level 2: can't say he's an ish tov, but can you a specific tovah about a rasha? Ans: R' Moshe: yes. But R' Yona inidicates that you can't list so many good points that you indicates that he's an ish tov.
- level 4: can you be a partner with a chiluni/rasha?
- partnering here is beomcing firends.
R' Greenblatt (Rivaas Ephraim): mutar b/c you're doing business and you're only friends b/c of business.
R' Berkovitz: assur, b/c who cares how you became friends.
R' Scheinberg: you can tell a kamtzan "you're so generous" is not chanufah b/c 1. you're giving him veiled tochachah, and 2. you're not praising his bad, but telling him what he should do. So too by being mekarev a rasha is not chanufah.
A tinuk shenishbah: even though he might be an oness, you can't partner with him to show your approval and chashivus.
- level 5: not putting down an aveirah, not giving tochacha is chanufah.
R Moshe: can sit in the knesset, it's not partnering with a rasha, just representing the frum jews. The gedolim say its a mitzvah. But can't sit with other conservative jews on topics of torah interest, like the NY Board of Rabbis.
Q. Can you recommend a mechalel shabbos plumber A. Yes, you're not praising his rishus when you say he's a good plumber, but can't give impression that he's an ish tov. Q. A man married to a non-jew honoured at a banquet? A. Ok, if no one knows what he stands for and that he's married to a non-jew, but assur if people know that he stands for rishus.
======ChanuFah Part 1 - Guidelines of the issur of Chanufah R' Berkovits - Shiur given Friday morning at Ner LElef 20 Feb 09
The basis of chanufah is: you have a need for practicality, so you disregard truth and values.
R' Yonah: being present while an aveirah is being done is included in chanufah.
Definitions:
Chanufah: I'm willing to tolerate something rah for practical reasons. I am making a statement that popularity, and parasa are more important than values. Values have to be more important than practicalities. Chilul Hashem: examples in the Gemara: an adam chashuv does an aveirah, a regular person does an aveirah for no reason, making a statement that weakens the foundations of judaism.
Can you be present at a wedding where there's mixed dancing (this is a clear issur)? Ans: you might be able to get out of giving tochachah. But for chanufah: you have to at least leave (Sharei Tshuvah 3:187), unless you have heterim (which we'll see next week such as a constructive reason to keep quiet, but not because you're embarrassed). Under tochachah, you have protest to the group at least once. This applies to anyone present, not just if you're the rabbi there.
Example: being present at a Conservative wedding ceremony is showing that you legitimise this and it looks like you recognise it.
Example: family member getting married conservative: do people view you being there because you recognise it, or b/c you're a relative? Ans: some poskim permit going since it's clear you're family member, unless they recognise you as a rabbi (who is legitimising it).
A good eitzah is to arrange that this conservative wedding is a kosher kiddushin (so then there's no problem of chilul hashem), by telling the couple you're bringing two witnesses, and give only one ring. R' Dovid Feinstein: prohibits this since it still looks like you're legitimising a conservative ceremony.
Practically Don't be part of any conservative/reform event that they view as a service (davening, wedding etc.), including a non-orthodox burial or if the service is in a chapel of avodah zarah. However, a reform/conservative burial that gets done in a kosher way, it's ok (also no problem if it's an open casket).
Keeping parking lotting open on shabbos for people to drive there: R' Berkovits: it's chillul hashem R' Y Weinberg: no chillul hashem (since you gave them the option to drive to shul (?)).
Giving an aliyah to someone who drove to shul? For some who drove to shul, not chanufah (in a kiruv minyan). For someone who is intermarried, chilul hashem unless he's a total tinok shenishbah. Most shuls have established that if you marry out, you can't get an aliyah.
======Chanufah Part 2 - Guidelines of the heterim of Chanufah R' Berkovits - Shiur given Friday morning at Ner LElef 27 Feb 09
15, 16. Remah: there's no lav of chanufah, just a bittul of tochachah. We paskun like the Remah, but we don't know why.
17. R' Moshe: says that the ikkar issur of chanufah is megaleh panim b'torah she'lo k'halacha. (Why doesn't R' Moshe cite the case that of R' Yona (and in the Gemara) that giving honor according to the person's stature is muttar?)
Joining with Resha'im There's a major difference between honoring a nice tinok she'nishbah versus a tinok she'nishbah who is famous for his issurim and whose identity is tied to aveirah, where you're putting non- observance on a pedastel.
Therefore honoring a mafia guy, or a celebrity known as a mushchis or as a movie star is assur - you're giving chashivus to something assur, and for American kids it's dangerous.
Ambiguous cases
In ambiguous cases, it's depends on how people relate to them, and how they're perceived.
For example, here's an ambiguous case: there was one movie star that Aish honored, who at the end of his life married a non-Jew and said he wish he would've learned 50 years ago, and was interviewed and the article was titled "I've started Bamidbar and I'm dying to learn Devarim".
At the first Aish dinner the honored Uri Zohar who stood up and said: "You know that the reason you're honoring me is for what I was, not who I am." He was giving mussar.
A certain family was indicted for embezzelment, and their foundation was prepared to sponsor an Aish building. R' Berkovits said it's ok if they write a verse about tweshuvah it's ok. But R' Noach wouldn't take the money.
There's no problem of chanufah in taking money from non-Jews unless its assur for other reasons.
Working with non-Orthodox
19. R' Moshe: you cannot join on a committee with Conservatives (the Federation, the UJA) since they distribute tzeddakah money which are questions of halacha. But you can take money from the UJA.
R' Eliashiv: a Jew cannot become a minister in which he'll have to agree on assur things. R' Ovadia Yosef: it's muttar.
The Gedolei America signed a cherem against "participating" with non-Orthodox. But R' Moshe personally held that Orthodox can engage socially with the non-Orthodox. But it depends on the minhag in the city.
Going to a non-Orthodox temple
Walking into a non-Orthodox temple is a problem of maris ayin on chilul hashem b/c people may think you believe in it.
However, R' Yaakov Kaminetsky said you can go there for the purpose of speaking or teaching classes (as long as no hava aminah that you're davening there, and davening is defined by what they called "davening"). But check with the Orthdox establishment in that town if there's a pre- existing minhag. If you are the first, it might be successful.
It's ok to learn personally with a non-Orthodox rabbi so long as they don't misconstrue your words. There are a number of cases of non-Orthodox rabbi's publicly announcing moving closer to othodoxy.
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Kiruv Rechokim R' Berkovitz 12 May 2008
Reason 1: Kavod Shamayim
- a Jew has to walk around seeing that the purpose of existence is kavod shamayim. And to increase it. - he quotes the Midrash: "if someone's hen would run away how much effort we'd go to. The aron is missing. Do you care?" Which hurts more a paper cut, or that the majority of Jews don't know there's a boreh olam? We get wrapped up in triviality, and then the vast majority of klal yisrael are ignorant. "Nu, what can you do?"
- a story in the Jewish Observer: a frei woman in Jewish nursing home demanded tarfos from the owner. He refused. She took him to court and won. He asked his rav, and said he can't. So he had an idea: he mekareved her, and she started eating kosher.
When it comes to kavod shamayim, what can you do? When it comes to our money, we'll go to great lengths! Our priorities are scary!
Reason 2: Bein adam l'chavero
- if we have a mitzvah to return his donkey, all the more so his soul! This chiyuv is rooted in chessed. Frum communities are full of chessed: providing kugels, and food and money, and gemachs. And yet, the fact that people don't know why they get up in the morning, that they don't have family, community, olam habah. It should hurt. And it's cruelty not to show them the good life.
R' Chaim Shmulevitz used to talk about kiruv every erev Yom Kippur, on a strictly Bein Adam l'chavero level. "If anyone can go through a whole year without losing one nights sleep over our acheinu ha'nidachim, then he's an achzar (cruel)".
Reason 3: Arvus
- b/c my mitzvah is lacking if you haven't done yours, I can make a bracha for you. - Magen Avraham: I am chayiv to give my mehadrin chanukah candles to you, so you can fulfil your mitzvah.
Case: I can buy kosherr tefilin for $450, or for $1400 for all the hidurim. What should I do? Buy the more expensive, or the cheaper and give the extra money to an organisation that helps others put on tefilin (note: our understanding of the hidurim of tefilin could be more lacking that our underrstanding of kiruv)?
Answer: R' Berkovitz thinks there's a strong side to buy the $450, and give the rest away.
Story: before bochrim would go back to E Yisrael, the from kiruv in the USSR, they would beg to take tefilin. But it would mean you'd miss a day of tefilin. Poskim said: better to miss a day, and give them away (b/c there's no source for every day, but there is for all the time). And its chessed.
Reason 4: Hakamas HaTorah
- Malbim: he's mediuk from the pesukim that only Yeshiyahu didn't know there was a Torah, but others knew about it (unless the kofrim who suggest that it could have been totally forgotten).
- R' Tzvi Muller founded Linas HaTzeddek. He bought a gift to give his friends when he left to become a rav in Canada, that was a little mirror that has written on it "alay l'hakim". - people are thirsty to hear something that makes sense to them. All the philosophies fell apart, and now the only thing left is money, and that fell apart. It doesn't take much erect the Torah.
Chasam Sofer (Pesuchei Chosem): the tachlis of man is to be mashpia. He learnt this from H': just like H' was metzamtzem in order to mashpia, so too must man.
Examples
R Chaim Shmulevitz: we have to learn and shteig. For whom? For klal yisrael. As long as you're still growing, keep learning. But do it for klal yisrael, not just because you want to be big.
During the bein hazmanim, R Chaim sent the bochrim out as part of Yad L'Achim (predecessor to Lev L'Chaim): 1st seder was self learning, 2nd seder was to collect kids off the steets to learn with them, 3rd seder was to go to lists of houses to convince the parents to send the kids to go to frum schools.
Today over a 1/3 of kids in Israel are in frum schools.
After R' Chaim was niftar, R Wolbe spoke every second week about doing kiruv, and the weeks between they had a someone speak about talmud torah.
But don't wait to leave kollel till you're burnt out and bitter. And when you're responsible for others, then you'll start shteiging again.
An old European Jew told R' Berkovitz that one of the sites/stops in Poland was to hear the Chazon Ish learning out loud, and in yiddish through the night,
R' Shach: when Germany invaded in Poland, there was tumult in the Beis Midrash. He said "so that means you don't have to learn?" When he got to Israel he carried on. Then when he was finished he was mashpia.
What about being mashpia by learning?
When a family has a kid go off the derech, we don't say learn and that will be mashpia on him. When klal yisrael go off the derech, we don't say only learning will do it all.
======Lifnei Iver R' Berkovits 28 July 2008
Minchas Chinuch (source 4) Putting a stumbling block in front of a blind person is not lifnei iver, although it is a pit that you made with your hands and it's grimas nezek (it's not muttar, although there might not be onesh beis din, but you are chayiv b'dei shamayim, even on his keilim).
The simple understanding of this transgressin is that it's bein adam l'chavero. But Rabbeinu Bachaya says it's a bein adam l'atsmo. B/c far bigger than your sin against the blind person, it's also a sin against yourself, and destruction of your character by taking advantage of his asking for your advice.
R' C Shmuelevits on a Wednesday night va'ad took out a cut out article from a newspaper (during the period when he would read the newspapers). The article was about someone who worked in the emergency room, and they brought in a wounded soldier. One of the workers was caught stealing 10 lireh from the soldier's pocket and sentenced to 30 days in prison. R' Chaim asked, "30 days for stealing 10 lireh?" In other words, how low can you be already?! You do aveirah's that are technically speaking quite small, but they're terrible and rotten and much more chamur when it comes to your bein adam l'chavero and l'atsmo.
Minchas Chinuch says you transgress even by a goy, and this fits well with the R' Bachaya who says it's bein adam l'atsmo. And you have the shorech ha'issur by tripping an animal too.
Chofetz Chaim says eitza eino hogenes is something that you wouldn't want done to you. So what level are we talkinga about when it comes to shidduchim? Even if the newly married man overcomes the lackings in the wife, and thanks the shadchan 10 years later, the shadchan was still over lifnei eiver.
The Rav gave this shiur to rabbi's of a baal tshuvah yeshivah. They said they knew that if they told the whole story about the shidduch to the guy, he'd turn it down. But the rabbi's claim they knew better. Is this lifnei iver? Only if they would suggest the same thing for themselves, a shidduch to work on their own middos, is it muttar. Even though every shidduch has lackings, you can suggest if it's normal lackings and this person wouldn't object.
If the shadchan knows that it's an eitzah she eino hogenes, he can't suggest it. So another person who's uninformed of the lacking must suggest the shidduch.
( R' Aharon used to say that the Roshei Yeshivah fly all over the world as galus b/c of the retzicha they did b'shogeg when giving eitzah.)
Lifnei Iver regarding kids The lifnei iver of Makeh b'no gadol begins from age two (source 12). Enticing a person do to a aveirah is eitza she eino hogenes.
If the way you treat a kid is that he'll hate you and yiddishkeit (like forcing him to make bracha's), then you're over lifnei iver.
R' Chaim Ozer When you machshil someone in an aveirah you get a chelek in his aveirah. So if you trip him in a d'oraisa you're over d'oraisa, in a d'rabanan, you're over d'rabanan.
If it's chad avrah d'nara and it's b'meizid you're pattur. A frei person is called an iver.
If someone driving on shabbos stops for you, you're not over on lifnei iver, b/c he stopped for pikuach nefesh. But you might be over on the halacha that you can't embark on a journey 3 days before shabbos if it'll come to chilul shabbos, but it's muttar for a d'var aveirah.
Lifnei Iver on the 3 Cardinal sins. Remah paskuns it's not yaharog v'al ya'avor. But R' Chaim Ozer says you get a chelek of his sin! Answer is that the aspect of the aveirah that you get is not yaharog v'al ya'avor.
Hechsherim To machshil someone in something that he thinks is assur is assur. Unless it's nikkar, obvious, b/c then you can assume he want be machshil. But the other way around is muttar, like, ashkenazim who hold a certain food is assur, is muttar to give to a sephardi who holds it's muttar. So long as you don't think the sefardi is to'eh, completely mistaken.
R' Yaakov Kamenitsky paskuned that a case of a son who went into a father's business which imported low grade kashrus Israeli foods into America said that he can sell them, since the buyer's responsible to check out the hechsher, and it's not lifnei iver, not mesayeya, nothing. Ran: even though the Ran was answering a side kasha. But nevertheless we say you weren;t doing the chessed in order to get the money.
Case: there was a wedding of zivug sheni and the parents weren't getting involved with helping to pay but came to the wedding. The couple had a lot of friends and ordered a certain amount of portions. While the couple was in the yichud room, he sees that there are twice as many people as there are portions, but cannot talk to the couple. So he drives to his kitchen and brings twice as many portions as were ordered. And at the end charges them for it. They said: "we never ordered it, and we had in mind that those who were close enough would sit and it, and the rest would leave." They paid half, and said we'll settle later. In the mean time they did their homework. They claimed that he was a mavriach ari to get rid of their embarressment. The caterer claimed that he was a yored (is this the right way around?). The halacha is that you're supposed to offer a pesharah (which is a mitzvah) else one person will lose everything. Either split the second half, or offer to pay cost price. The caterer choose to split it.
There was a side consideration: maybe they could get the guests to pay.
Side point: the musician doesn't finish playing on time, so bring extra money to pay at the wedding, to enjoy the wedding and not be aggravated afterward.
Case: a kiruv organisation did an event where twice as many expected people came. The frei mother of the organiser went to buy more food and gives them the bill at the end. She was mavriach the ari of the embarresment. The rabbi claims that he would never have spent the money. R' Berkovits paskuned: he couldn't obligate the rabbi to pay the mother, but considering the circumstances if might be appropriate to fund raise just for this.
When there is a ketzitzah
A ketzitzah obligates one to pay.
Avraham couldn't have claimed meshateh because he could've purchased a burial plot elsewhere. Also, it's rare to find a meshateh ani bach on a purchase.
How much should a doctor charge? He can charge for his knowledge. Tosafos seems to imply there's no limit, but that's only in the realm of normalcy. One cannot claim meshateh ani bach for a doctor except where it's a standard routine and he charged way too much.
Case: a woman in Sanhedria Murchevet needed emergency surgery. Benny Fisher told them to to go to a certain doctor in Shaarei Tzeddek. He informed them that he is very expensive, and afterwards gave them a bill for 80,000 NIS. The standard rate is between 25 - 30k NIS. In the end, insurance covered a small fraction, and he raised the rest himself. It seems that the doctor is taking advantage of the community. R' Berkovits called up R' Noived who deals with shailah's of the klal and is invovled in Shaarei Tzeddek. He said it's outrageous, and to place a complaint with the hospital, not with the doctor himself (not loshon harah since the doctor knows this is done). The hospital rejected the complaint. R' Noivid doesn't know why.
Part 2 to this question: the doctor didn't bill for the second half of the payment. The patient is still obligated to pay.
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UNPRINTED TOPICS ======Mitzvas Halva'ah Lending R' Berkovits 7 Sept 09
To lend money is a mitvas esseh.
Does the mitzvah apply to any applicant? For example, "I want to open a business to make even more money. I'd like you to lend me money instead of going to the bank." The answer is that the person has to be in need (dachko). Is this person considered "in a state of need"? Need is defined as: 1. he needs it for income or 2. he needs it because he will lose a lot of money.
If he doesn't have a need, the answer is: where is the money coming from that I'm lending: if it's being unused: then it's a mitzvas chessed to help him, even if he's not in need, and if he's in need, it's a loan. if the money is being used for some other necessary purpose: there's no mitzvah to make a sacrifice for someone else when it's extra's and he's not in need, due to "ki efes becha evyon". One does not have to lose money or lose potential profit to let him become rich. Therefore I don't have to take money out of the bank where I'm earning interest to give it to him. Rather you can make an iska with him, invest, and you get profit share.
Case: a solar energy R&D company in Har Hotzvin had a cash flow shortage, and needed a loan to compete in the market. It was a Jewish company, but it went under. It would have been a mitzvah doraisa to loan to them. So too to prevent any company or person from a loss. Even if you do it as an investment, an iska, it's still a mitzvah of chessed. If you have no kavana for chessed or any mitzvah and do it to make money, you still get schar - this is learnt from shichachah.
It's a mitzvah of chessed to be an areiv. It's not a good thing to do, unless you're willing to pay if he defaults (Hil De'os).
Exemptions from lending > One does not have to take a risk to make a loan. > If you know he can't pay back the loan: that's lifnei iver to lend him. > If it takes lots of effort and phonecalls to get the money back: you're not obligated to lend him. You could lie mipnei hashalom. > You're allowed to refuse giving a loan if you think it's not good for this person to become dependent or you're feeding a habit. Such as someone who lives on Gemach's. Such a fellow needs to either find a sponsor or go to work. Make sure you're not doing this because you're stingy.
When you borrow, you have to pay back when the time comes even if the lender doesn't need the money. There's no obligation to give an extension, especially if you get the feeling that the person doesn't feel a responsibility to pay it back.
Rich person Unless a rich person is "dachuk" there's no mitzavah. If he;s only losing out on profit, also no mitzvah.
Do you need eidim and shtar for a 1 shekel loan? Although people are forgetful (shichah), people are not makpid, and deep down people are mochel, and you have to tell the borrower, otherwise it's still lifnei iver since you tempting him to transgress now. R' Wosner doesn't like this, and requires at least 1. a shtar chov (which has all the halachos of shtaros. A simple version of the shtar chov: "I who sign at the bottom, I borrowed shekel to pay on such a date. Signed". If it's not kosher, but the guy won't be so brazen to deny it, it still ok), or 2. ksav yad (IOU note with an informal ) or 3. witness.
But a ksav yad is weak because a person could always claim "porati".
Gemachim
How does it work: Are they shalichim to do my mitzvos (and if something happens they aren't responsible) or it's a deposit (pikadon) to them and they do the mitzvos with them. This is a machlokess haposkim.
Lending to a gemach is a mitzvah. The benefit is that you don't have any headache, but the downside is that you don't have personal contact.
Better to lend directly to the person in need, but if you can't handle the effort of getting the money back, then give your money to the gemach, and he'll get it through them.
======Kinyani Shmirah - Book 6, Topic 8 R' Berkovits 26 Oct 09
R Chaim: the armed guard outside labelled "security, shomer" is not a shomer, he's a po'el. This "shomer" never had mesirah l'resuscha of the object, he's just hired to shoot.
So shomrim are not poalim.
If I lend you something for 30 days, I can't claim during that time I need it back, since it's in his reshus. If no days of loan were specified, then the loan is until he wants it back.
7. Tos: If I say "hanah lefani" I become a shomer chinam and chayiv on peshia.
10. Rosh: once the baal leaves and trusts you with the object, you become a full fledged shomer and even chayiv ones, even without kinyan! There's no act of kinyan, but it becomes "in your domain for the purposes of shmirah."
15. Shach: you need a kinyan to become a shomer. This is halacha lmaaseh.
18. Aruch Hashulchan: However, even without kinyan, just accepted responsibility, you're chayiv on peshia because of garmi of nezikin (which is drabanan), unrelated to shmirah.
17. Nesivos: once he accetps the money for guarding, he's a poel, even though he's not yet a shomer.
Lmaaseh:
Case: R' Berkovits kollel started off in a shul somewhere, and shared an office with the rav and gabaim of the shul, the binder and their office. One night the gabaim were meeting in the office, and left it open and unguarded. A kid stepped in, and used the binder's drill to drill a hole in the control panel of the kollel's portable AC. The kollel claimed that they were meant to lock the door. They offered to pay for the control panel.
R' Berkovits claimed they were pattur since they never had kinyan or kabalah shmirah.
Case: You rent someone's apartment, is there chiyuv shmirah on the furniture? Crockery? > Anything mechubar: no shmirah. Case: someone borrowed an apartment, and a kid outside broke the window: pattur since there's no shmirah on the window which is karkah. > Moveable objects which you're allowed to use, like crockery: there is kinyan shmirah. > Moveable objects which you're not use, like their clothes: no kinyan shmirah.
======Kabalas Smirah Accepting Guardianship 2 Nov 09 R Berkovits
Case: this is a common shailah: you buy something from store owner, and then say "I'll be back in 10 minutes, do you mind to just watch it?" Since its in his reshus, theres a kinyan for shmrah. You come back, and it's missing and you ask him where is it, and he says, "I don't know?"
Lmaaseh: theres no kabalas shmirah, even though there is a kinyan shmirah, and hes pattur. In the standard cases today, "do you mind if I leave it here" is a hanach stam of the Shulchan Aruch (we dont know how to translate all the lashonos of the SA), and therefore no kabalas shmirah and therefore pattur, unless you said "Do you mind if you watch over this" which is shmirah. (.
10 Nesivos: if you leaves someone's property in public reshus You a mazik beyedaim. He also says: if you do kinyan on a object where objects require shmirah, the kabalas shmirah is implicit, and youre a shomer
Machneh Efraim: a paid servant who's asked to guard something is shmer chinam.
Kablan is a shomer sachar on the object he has to fix, and on the tools he borrows (since he makes moey off them).
Case: a caretaker lost the master buch of yeshivah keys. He's shomer sachar on those keys (since he makes moey off them) and must pay the replacement value. Dont have to replace the locks, since its grama
18 We go like Machaneh Efraim that hanah is a kinyan, and for sure if you intended it.
19 If you hold a guest is a shoel then he has to pay even if the host's child breaks his plate. This was lmaaseh since the guest wanted to pay for the plate, and the host refused!
Case: a bunch of bochrim came to ask R' Moshe: one of the kids had kicked it so far they couldnt find it. He said all the players are shoelim, but b/c they all agree to play together, its called baalav imo and therefore pattur.
======Chazaras Hashomer R; Boehm 9 Nov 2009 Lmaaseh, a babysitter can stop working in the middle and go home, poal yachol lachzor bo, but they're still responsible for any damages. However, if it's a davar avud, then they couldn't be able to chozer.
If the babysitter wants to leave and find another in her place, this is muttar even though it's a davar avud.
Even if though it's muttar to chozer for a poel, it's a machlokess if it's muttar lchatchilah.
Case: someone had a sefer torah, and deposited it at the shul for them to use. The shul pays the insurance for the sefer Torah, but then the premium went up, so they stopped paying. What's the din of the shul now? Unanswered.
Case: someone who goes to chu;l and leaves his car for his neighbour to use occasionally so that it shouldn't get stolen. What's the din of the neighbour? Unanswered.
======Shomer she'masar l'shomer R; Berkovits 30 Nov 09
Lmaaseh: a shomer thats moser to another shomer is chayiv, unless its somebody that the baal habyis trusts, or its expected, like children wife
What if you downgrade the guardian ship when you pass it on? > Rambam: chayiv Reason: Ketzos, Nesivos (?): the second shomer's oath is not believed by the baal habayis. R' Chaim: downgrading the guardianship itself is a peshiah. > Maharshal: is cholek on the Rambam, therefore pattur (as long as it's someone who the baal habyis trusts).
Even when there's no status of shmirah, you're still chayiv for peshiah. But what if there's no toras shemirah, and then you pass it on? Ketzos, Nesivos: pattur (?) since there was no oath n the first shomer. R' Chaim: chayiv.
Is shomer she'masar lshomer muttar? Remah: if it just sits there, like karkah, it's muttar.
Lmaaseh: you rent an apartment, is it muttar to give it over to strangers for shabbos? Remah: muttar, you don't have to call up the baal habayis.
Do you have to find out who the peolpe are? If the one requesting is making a simcha and needs accomodation, you can rely on the baal simcha (they're part of a trustworthy family, but obviously, the baal simcha is not responsible). In other words, muttar if you know the person, or there's reason to trust them. This applies to the property, but the metaltelin of the baal dirah (like fridge, crockery) is not muttar.
But to just pass it on to a complete stranger? Well, if you were watching someone's stuff would you pass it on to a stranger? No. This case is like walking outside and not even locking the door. Therefore, it's peshiah to give to complete strangers, and all the more so on the metaltelin.
However, in neighbourhoods where it's understood that people rent out their apartments for shabbos, it's muttar, since it was rented out al daas kein. What if you did lend out your rented apartment, and the borrower broke a window? Who pays: baal dirah, renter (socher) or guest? > If the guest is an adam hamazik, he pays. > If the guest does not pay and disappears, who pays now: baal dirah or renter? It was muttar to give it to the guest (acc to Remah and because it's rented al daas that you can rent it out), and now its a case where the shomer took it al daas that his wife/kids will watch it, in a case where wife/kids don''t pay: it's a machlokess rishonim. Lmaaseh, the baal dirah doesn't have to pay, since he can claim kim li. (The Nesivos says that Beis Din has to claim it for you if it's an ikkar shitah (but you have to claim it if it's a daas yachis).) (But acc to R' Eliashiv: you might want to pay because when you get Heaven you might find you're chayiv due to a single rishon who holds you're chayiv, and therefore pay to be latzeitz lidei shamayim. This is a chumrah.)
Lending out one's rented apartment for shabbos is the most common case of shomer shemasar lshomer. Here are some other cases.
Another case: You're taking a package to Bnei Brak for a friend. You give it to some stanger on the bus who is going to that street. Is it muttar? Ans.: assur, unless the owner gives explicit permission.
You borrow something from a neighbour. Then return it to the neighbour's kid, who loses or breaks it. Ans: originally you were a sho'el, and then gave it to banav (his children) who doesn't have daas, therefore you're posheah. If it's normal responsible kid, it might be muttar (depends on if he has bar daas and an umdenah that the owner doesn't mind).
A case that occurred in J'lem: a 10 year old showed up to the money changer with $50 000! Here it's common to entrust large sums with children. Therefore the umdenah depends on the norm in that place and the object. We won't say ishto u'banav for a borrowed car.
Case: an yeshivah for kids off the derech (who are coming back) ran a shabbaton and ask for family's apartments. The renter came back and found the kids had baked a pizza in the fleishik oven on shabbos. Ans.: The halacha is that the kids are chayiv for kashering, but they have kam lei miderabah minei, so pattur (even though there's a R' Akiva Eiger who says chayiv). But they would have to pay for the pizza. The institution is not responsible. Furthermore, if someone with no neemanos is alone with your keilim, everything has chezkas treif and needs kashering, unless you have tevi'as ayin, i.e. you recognise that it wasn't touched and is not out of place.
======Baalav imo R' Berkovits 6 Dec 09
Baalav imo is a gezeiras hakasuv in shomrim, (which doesn't exist with karkah and avadim) and we don't fully understand it.
Rambam~ doraisa she should have been chayiv if she broke something of yours, but they were mesaken that she pattur.
Raavid~ she''s pattur due to baalav imo.
Machneh Efraim~ wherever you have to do work, and you damaged unintentionally, he would be poshea (not an adam hamazik], except that baalav imo and therefore pattur. This applies to an office worker. Today, the employer has obligations to his employees, like legally he has to supply you with a chair (in Israel you can`t expect a worker to stand more than a certain number of hours a day e.g. cashiers, waiters etc.), clothing/uniform. Usually a poel is a shomer sachar on his work equipment, but since its baalav imo he`s pattur.
Common shailah~ a worker clicks the wrong button and destroys a days work. This normal and pattur. Now R Berkovits says the emoyer shoud have an externa hard drive
21. sabal -
For R Berkovits barmitzvah they ordered a cake for Friday night, the yeshivah bochur delivered it but it was out of shae since he said he tripped. Whose sabal is he?
Meisah machmas melacha It has to be any normal usage. This is very diffecut to prove since it can aways be claimed that the socher didnt use it correctly. Also if the baal dirah and socher argue that the drain blockage was each others fault. If the plumber finds baby wipes, then we see that it was the sochers fault. (When R B3erkovits came to Israe one coudnt ut toiet aer down the toiet).
If a tris cord breaks that considered normal.
Its a three way machokess what the halacha is (Ramban, Ramah, Rosh).
Whats with a borrowed sefer? It depends on the circumstance. For example, since all paper can tear, its machmas melacho. R Moshe said that kicking a ball too hard is not machmas melacho.