[Avodah] kosher switch

[Chana Luntz]

RMB writes:

> However, there is another chiluq between the cases.
> 
> Despite my earlier thought of linking the two cases -- kosher switch
> and hair brushing -- kosher switch is actually far more problematic.
> Shutting off the light using the kosher switch isn't a side-effect.
> It's
> not a question of whether this is pesiq reishei or gerama or even less
> because the action under discussion is the desired consequence.

Hold on.  While it is true that in relation to psik reisha, the action under
discussion is not the desired consequence (that is why anything short of
guaranteed or (perhaps) virtually guaranteed is not a problem), with grama,
the action under discussion is always the desired consequence, it is just
indirect.  The classic case of grama in the gemora is of placing barrels
filled with water in the path of the fire, specifically in order for the
fire to burst the barrels and the water to then put out the fire.  The
desired consequence is the extinguishment of the fire.  The problem is that
pouring the water directly onto the fire to put it out would be an issur
d'orisa.  The gemora says that doing it in the indirect manner is mutar
(according to Sephardim, mutar l'chatchila, according to the psak of the
Rema, only in a case of hefsed meruba and similar).

The question discussed by the poskim, and which is sharpened by modern
technology, is how indirect is indirect?  The contrasting case is winnowing,
throwing wheat up into the air and having the wind separate the wheat from
the chaff, which is an issur d'orisa.  The question is, again, the
performance of the issur is not due solely to the direct action by the
person. Were there no wind, there would be no issur in merely throwing wheat
in the air.  So it is not just that there is another force (eg wind, fire)
which contributes to the whole scenario.  Various answers have been
advanced.  One of the most popular is time delay.  You throw the wheat in
the air, the wind acts (were it not to do so immediately, then the wheat
would return to the ground before any winnowing would occur).  In contrast
the fire takes time to get to the barrels, break open the barrels and
release the water, thus putting it out.  However the assumption appears to
be that there will be an inevitable extinguishing of at least some fire at
some point in time. Here though, not only is there a time delay between the
movement of the piece of plastic on the kosher switch, but there is also
uncertainty about if and whether the switch will work at all, although the
probability is high that ultimately it will, although it is less certain
when.

Another distinction drawn is between the normal way of performing the
melacha (ie throwing into the wind) compared with extinguishing fire (nobody
would put barrels in the way on a normal day).  However, normally people
close circuits to light a light, moving a bit of mechanical plastic and then
waiting for some point in the future when a coin toss will put on the light
is hard to define as normal (although no doubt it could be designed in a way
to make if feel even less normal).

Another distinction drawn (although as I have written on this list before, I
don't understand this one, as those who follow it use it to assur things
that it appears to me should  be mutar) is between whether the force in
question that does the act exists at the time of the person's action or not.
In the case of the winnowing, the wind existing, in the case of the barrels,
if you understand that it is not the force of the fire (which does exist)
but the force of the barrels breaking releasing the water that puts out the
fire, a distinction can be made.  However here, the coin toss only occurs
after the bit of plastic has been moved, so it seems most clearly designed
to meet these criteria.

But in each case, it is assumed that the action under discussion is the
desired consequence.

 
> May you do a melakhah for the sake of having a < 50% chance of getting
> the melakhah itself done?

The argument here is that no melacha is "done", there is no melacha in
shifting a bit of plastic from here to there, any more than there is in
placing a barrel here or there in the absence of a fire, or in throwing
wheat in the air, absent a wind.  You have to considered the picture of
throwing plus wind versus placing plus fire, and then plastic movement plus
coin toss leading to circuit closure.  The question is, if for some reason
there was only a 50% chance (or less than 50%) chance of there being a wind,
would we still have an issur d'orisa?  Even if yes, if there was only a 50%
chance (or less) of the barrel breaking and releasing the water and putting
out the fire, would the Rema still say it was only mutar in hefsed meruba
situations, or would he allow it in all situations?

> About heter isqa... Recall that using credit swaps or other such
> products,
> 
> Also, the thing falling under statistics is different than either of
> the other two cases. While
>     - the kosher switch involves the probability of your goal outcome,
>     - brushing hair involves the probability of an unwanted outcome but
>       lower probability is better,
>     - heter isqa is also about an unwanted outcome on a pragmatic
> level.
>       The bank doesn't want to lose money.

Nor for that matter do I really want to pull out hairs - if too many of them
get pulled out I would be bald, which I would not like.  I am only
comfortable with pulling out the regular few during my regular, chol,
brushing, because there are not in fact too many of them.  (One of the
reasons I confess I find the hair pulling example difficult, because it
really does seem lo niche lei, although there may be an idea that it thereby
tidies up the remaining hairs).

> But it is a desired probability on a halachic level 

Not really.  In the ideal halachic scenario, the bank lends, *without*
interest, and is guaranteed not to lose the principle.

The desired probability is only to enable the bank to charge what would
otherwise be interest, on the grounds that it is risk money, ie it is
functioning as an investor in the business, with the additional money to be
received characterised as a return on the business.  The definition of an
investor in the  business, rather than a lender, is of taking certain types
of risk, hence the need to create these types of risk to enable the lender
to be considered an investor.

-- the risk needs to be measurable in order
> to
>       permit the deal as a heter isqa.
> banks productize the risk in their various investments and share it
> among separate banks.

That is true, but I am not sure if it is relevant, which is why I was trying
to keep it on a single bank level.  The problem once you introduce credit
swaps and such other products is that it is not totally clear that these
themselves do not fall foul of the ribus prohibitions (or at least avek
ribus), Various futures and hedges are elaborated in the gemora and are
indeed a problem.   The reason we tend not to worry about credit swaps and
similar products is, in my view, because the chances of there being two
institutions that are Jewish on either side of the transaction unmediated by
the (non Jewish) interbanking market might logically be regarded as
negligible.  A credit swap between Jewish individual X and Jewish bank Y
(assuming you do not accept the corporations aren't Jewish argument, which
clearly those requiring heter iskas from the Jewish banks do not) may well
also falls foul of the ribus halachos.

 
> Also, recall that using credit swaps or other such products, Heter isqa
> doesn't directly depend on the proability of loss, but on the bank
> taking on that risk. The risk is what makes it an isqa.

Well it is more than that - it is what *justifies* the return (otherwise
understood to be interest).

> But the bank could sell off the risk, at a profit, and have no probability
of loss remaining, and
> the heter isqa didn't lose validity

Note though that logically in halachic terms it should therefore be handing
over all of the return by taking out the investment (with at best deducting
agency fees on bringing the new investor and the investment together).  It
is not clear to me whether if the counterparty was Jewish, that would not be
the halachically required nature of a swap, since the risk and the return
are regarded as being inextricably linked (ie anything else would be
regarded as ribus). 

. Heter isqa relies on probability,
> not outcome. Unlike brushing hair, which bedi'eved, if you brushed your
> hair with a brush that was likely to pull hairs and none actually were,
> there is no issur.

Yes agreed.  That is why I felt Heter Isqa was good example to spell out
what is going on at the level of the kosher switch.  In the Heter Iska case
it is the probability of failure that makes the transaction mutar. The fact
that  the outcome may be close to guaranteed for the bank, in terms of its
overall profit margins due to other transactions (or 100% guaranteed due to
credit swaps with non Jewish institutions) is thus irrelevant. Hair is all
about outcome in the individual case, that is what psik reisha is, a
guaranteed or close to guaranteed outcome.

In the kosher switch case, the question is, does *adding* probability as a
factor to all of the other usual arguments for a grama switch (time delay,
unusual nature, force not in existence that actually completes the melacha)
make it "even better" than you typical grama switch, and hence mutar
l'chatchila even for Ashkenazim?

> Tir'u baTov!
> -Micha

Regards

Chana