Parashat Shavua

Hemdat Yamim Parashat Tezave 5763

Hemdat Yamim Parshat Tetzaveh 13 Adar I 5763 ============================== This edition of Hemdat Yamim is dedicated to the memory of R' Meir ben Yechezkel Shraga Brachfeld o.b.m. ================================ Eretz Hemdah is the premier institution for training young rabbis to take the Israeli Rabbinate's rigorous Yadin Yadin examinations. Eretz Hemdah, with its distinctive blend of Religious Zionist philosophy and scholarship combined with community service, ensures that its graduates emerge with the finest training, the noblest motivations resulting in an exceptionally strong connection to Jewish communities worldwide. ================================ Jews on Their Own Two Feet / Harav Moshe Zvi Polin Percival Goodman, one of America's great synagogue architects, insisted that the Ner Tamid in every synagogue be designed to be an oil lamp to be tended by the members of the congregation. Actually, there was no independent Ner Tamid in the Sanctuary or the Temple; it was the westernmost light on the Menorah (Shabbat 22b). When it was kindled, the flames were not allowed to sputter or flicker, but had to "dance" by themselves (ibid.21a). The purpose of the Ner Tamid was "a proof to the world that the Shechinah (Divine presence) abides in Israel" (ibid., 22b). From Israel, specifically from the Temple, the Shechinah emanated to the world. "Just as oil illuminates, so does the Temple enlighten all the world" (Shemot Rabbah 36,1). Haboneh to Shabbat 21a (found in the Ein Yaakov) offers another interpretation of the Ner Tamid based upon Mishlei 20:27, "the light of G-d is the soul of man." In other words, just as Israel, i.e., the Temple, must be the source of inspiration for all mankind, so must a Jew fulfill his or her mission as G-d's representative in the world. And just as the flame of the Ner Tamid had to burn by itself and not sputter or flicker, so must a Jew be sufficiently knowledgeable in Torah and committed to its commands to make the right decisions in life, to act independently of negative influences, not only from general society, but even from friends and family. What does it mean to be sufficinetly knowledgeable in Torah? It means not deluding oneself into thinking that one knows more than he or she actually does. It means asking questions, first of oneself to try to find the answer, and afterwards of Torah scholars. One must model himself or herself after the flame of the Ner Tamid, not sputter or flicker, but stand or "dance" on one's own two feet. ========================================= P'ninat Mishpat - Distancing Damages - Part VIII - Noise and Commotion Not only can one complain about monetary damages and lack of privacy, as we have seen, but he can sometimes complain about the noise and commotion which his neighbor brings into their residential area. The source is a mishna in Bava Batra (20b) that neighbors can prevent the opening of a store in their residential area with the claim that they cannot sleep because of the noise of those who come and go. There are a few distinctions made in the gemara and poskim, which are particularly pertinent. The gemara (ibid. 21a) says that if the noise comes from schoolchildren learning Torah, then one cannot protest. This is because the mitzva of providing Torah education overrides the more mundane concerns of the neighbors. The Shulchan Aruch (Choshen Mishpat 156:3) extends this leniency (from the noise-maker's perspective) to anyone who generates the noise through a mitzva activity. This should apply to a shul or a beit midrash. The poskim then discuss what the halacha would be in regard to "secular" pursuits, which are viewed by halacha as mitzvot. This includes a doctor's practice (see Nedarim 41b, where we see that healing is a mitzva to the extent that one cannot demand payment freely). Some distinguish between mitzvot that have a public element and those which are private in nature (see Pitchei Choshen,V, 15:(74)). The question also arises whether just making a living, specifically when one does not have proper alternatives as to where to open a business or practice, is not enough a mitzva to receive special consideration (Pitchei Teshuva CM 156:1, in the name of the Chatam Sofer). The mishna cites inability to sleep as the rationale for the neighbors protest. What if the noisy activity is only during hours when people are not sleeping? Part of the discussion in the poskim revolves around a historical question: in Talmudic times, were stores usually open at night? The standard approach is that sleep is but the classic complaint, but any type of disturbing commotion can be a legitimate complaint. In fact, extreme commotion in close quarters, even not during sleep time, could be cause for complaint, even against mitzva activity (see Pitchei Teshuva ibid.:2). ============================================== Moreshet Shaul (from the works of Hagaon Harav Shaul Yisraeli zt"l) The Idea Behind "Hatorah V'hamedina" - part I (from Harabanut V'hamedina, pg. 47) [The following is from of an interview Rav Yisraeli gave to Israel Radio in 5715 about the periodical "Hatorah V'hamedina," which he edited. During the early State years, "Hatorah V'hamedina" dealt with questions of halacha that apply to the running of a modern Jewish state.] "Hatorah V'hamedina" is an important platform from a fundamental, philosophical perspective, as well as practical perspective. From a philosophical perspective, it is needed to teach an important lesson. From time to time, we come across an opinion that the Torah's role as a set, binding framework to regulate activity is only within the private realm. That is where the Shulchan Aruch charts our course. However, within the communal and, certainly, the national arena, they say, no set halacha can exist, because political and communal life is ever-changing. We could live (although not agree) with these statements if they emanated from those who are far away from a Torah lifestyle. However, we hear these claims even from those who, in their private lives, keep Torah and mitzvot. Therefore, it is crucial that we publicly enter into deep halachic deliberations on national matters, so that all can see that the Torah has immutable rules that can be applied in a manner that is appropriate for changing situations. Let's take, for example, the question of the outlook on an enemy nation and how one is supposed to respond to acts of terror. The great majority of the public, including the religious public, will tell you that there is no gemara on that topic, and that the matter depends totally on the views of military and political experts. At most, they will say that one should consider the matter according to the general, Jewish sense of morality. But in our last issue, we had a comprehensive article that demonstrated that there is a halachic basis for international law and national bi-lateral relations. Ask the Rabbi [This is an abridged version of last week's question, including responses to our inquiries. Review elements of the deliberation that we cannot repeat.] Question: I, as an architect, was authorized by a client to hire for them a structural engineer to supplement my work. As lead contractor, I am supposed to arrange all payments. I was mildly negligent in not sufficiently warning the client that the engineer would have to do a lot of work. The client now refuses to pay for the engineering work. Should I pay the engineer from the money I was paid for my plans? The engineer and I have no written or even specific, oral agreement, but we both assume to be working within accepted practice. The American Institute of Architects (AIA) told me that in their standard contract, it says that the architect should pay the consultants according to the percentage of money received from the client and diligently pursue the remainder of the payment. They provided no information to fit this exact case. Answer: Your responsibility to subcontractors is as an agent and, thus, you aren't required to pay them out of your pocket when the client refuses to pay. This is confirmed by professional practice and by the AIA standard contract. The client was required to pay you, part on your own behalf and part on the engineer's behalf. When one receives partial payment from a joint debtor, who gets the money? The Shulchan Aruch (CM 58:4) and Rama (ibid. 83:2) rule that he who receives the payment has the power to determine what debt the payment refers to, even against the intention of the one who pays. Thus, you should have been able to keep all the payment for your architectural services. However, this isn't always the right thing to do, and your case is also different. An agent who arranges that A. will work for B. can obligate himself to pay personally for the work done (Bava Metzia 76a). While this is not the case in your situation, fully, it is partially. The AIA contract obligates the architect not to take all of his money before his consultants get a proportional share. As you accept this contract as the fair, industry standard, it is as if you agreed explicitly to forgo your right to keep all payment. However, the plot thickens. Although we learned that the creditor can overpower the desire of the debtor in determining the payment's nature, the debtor can still state his preference. Although convention does not allow you to demand payment for yourself first, if it is the client who refuses to give money to the consultant, it does not seem logical that you must refuse payment for yourself in the meantime. (A clear, public ruling of the AIA to the contrary would overrule our logic by convention). At first glance, this is your situation, as your client feels that he has gained from your work but not significantly from the engineer's work. However, upon further consideration [ed. note- realize that the description of the case is abridged], this seems to be an oversimplified evaluation. The client does not seem to question primarily the quality of the engineer's work or his basic diligence, but the broad mandate he was given to investigate engineering issues beyond the client's interest, and he blames you at least partially for this. For our purposes, it is less important whether the client is right, but how he would answer the following questions. "Did you intend that the whole payment go to the architect, and that the engineer doesn't deserve a cent? Or do you feel that the total amount paid represents the value of services received, that neither the architect nor engineer acted properly, and so let them figure out themselves how to split up the money?" If the latter is true, as it sounds, then we go back to the AIA standard that the architect should not decide to take a proportionally higher percentage of the payment than the engineer. If the refusal to pay in full is a disingenuous excuse, then it is more clear that the AIA standard applies, as the supposed non-payment for one service is actually a general partial payment. ====================================================== Hemdat Yamim is published weekly in conjunction with Gemara Berura. =========================== Harav Shaul Israeli zt"l Founder and President Deans: Harav Yosef Carmel Harav Moshe Ehrenreich ERETZ HEMDAH 5 Ha-Mem Gimmel St. P.O.B 36236 Jerusalem 91360 Tel/Fax: 972-2-5371485 Email: eretzhem@netvision.net.il web-site: www.eretzhemdah.org American Friends of Eretz Hemdah Institutions c/o Olympian 8 South Michigan Ave. Suite 605 Chicago, IL 60603 USA Our Taxpayer ID#: 36-4265359

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