[Avodah] The Lost Scotch

[Samuel Svarc]

Due to the many complaints about the morality of the p'sak, I think it is
only fair to quote the author's introduction to the p'sakim. (The halachic
rightness is something I myself am troubled by, and plan to post separately
about.)

"  When I introduced the idea of a short-story book on Choshen Mishpat to a
variety of Rabbonim they all shared the same concern.

"You have to include a very clear disclaimer," they insisted. "A warning to
your readers not to try and rule on their own based on what they find in the
book."

Such disclaimers are in fact quite common in books of a sensitive halachic
nature. A typical entry would read similar to the following.

This book is intended as a guide only. In case of practical application a
competent Halachic Authority should be consulted.

This statement in a book of Choshon Mishpat presents a difficulty. In case
of practical application, consulting with a competent halachic authority to
assess one's rights is pointless. It is impossible to correctly answer a
disputant without first hearing the opposing party's version of the story.
Such investigation invariably depicts a tapestry of events quite different
from those originally presented and only through hearing from both sides can
a true picture of what actually transpired possibly appear. Consequently,
any Rov giving a clear, unequivocal ruling to an individual disputant is by
definition incompetent!

The key words to consider here are assessing one's rights. A great deal of
useful advice on dispute extrication can be gleaned from a Rov, or indeed
from any level-headed, unbiased person. In most petty disputes being right
is irrelevant; the correct thing to do is engage in damage control and mend
a friendship, sometimes even enduring a monetary loss in the process.

Such an attitude is based upon elementary economics. Engaging in a
Cost-Benefit Analysis of the aggregated costs of a dispute invariably
indicate the need to find middle ground; to search for a happy medium with
which both parties are comfortable. Unless one of the parties harbors
malicious intent, this is by far the most successful method of settling
disputes and removing ingrained resentment and strife.

Synonymous with such an approach are the barometers of moral correctness,
ehrlichkeit and mentchlichkeit. It is erroneous to pursue a regimen of
strict halachic adherence without considering these platitudes, as evidenced
by the Talmud's statement, "Jerusalem was only destroyed because of halachic
exactitude in money matters." (Baba Metzia 30b)

However, it must be emphasized that to base an approach to monetary dispute
solely upon one's moral inclinations is woefully inadequate. On the
contrary, such an outlook lends itself to halachic abuse, for "every man is
just in his own eyes" (Mishlei, chap.21 v.2) - by process of elimination
disputants will inevitably blame the conflicting party for not being
ehrlich. Under this 'noble' banner, a vociferous, well-connected and
charismatic litigant can engineer a coercive social atmosphere to demonize
the opponent, from which the only escape is capitulation. This is certainly
not consonant with halacha. The truly moral path first requires an
appreciation of the halacha, and only afterwards considers what is ehrlich
and mentchlich and what not. 

This provides for a secondary note of caution to the reader. The rulings
given in the following pages are strictly halacha-based; any moral
conclusion would be dependent on factors other than the technicalities of
the story and hence beyond the scope of this work. Nevertheless, a study of
the rulings and their underlying principles will still prove invaluable in
introducing important halachic principles and their relevant applications.

This also explains why not every story ends with a final psak halacha.
Rather than devote pages of explanation to fine, hair-splitting halachic
complexities, I have been content to briefly quote relevant sources and
explain why the issue has been left unresolved. On the contrary, it would be
obtuse to write conclusively on debatable issues; halacha requires that a
Beis Din be comprised of (ideally) at least three judges, allowing the word
of the individual to be over-ruled anyway!

Although producing a book in English does provide the unscrupulous
individual with the tools and knowledge to manipulate halacha for his or her
own devices, this is not reason in itself to desist from such an endeavor.
For this is the way of the entire Torah - For the ways of Hashem are
straight. The righteous walk in them and the wicked stumble over them
(Hoshea 14, 10).  "

I hope that this will retain the author's chezkat kashrus that he so easily
lost.

KT,
MSS