[Avodah] Halachic who is right from "The Lost Scotch"

[Chana Luntz]

RMSS wrote:

> I spoke today to one of the finest minds in Lakewood in CM 
> (if not in other areas as well). He told me that the author 
> got it right. Since the kallah's side would not be interested 
> in having someone else impersonate Chaim ben Zundel after 
> they had gone to the expense of hiring the real deal,

Agreed

> the 
> chosson is considered an oneis. Oneis, I was told, is not 
> only "eey efshar" physically, it is also when it is "eey 
> efshar" practically. The Trumas HaDeshen, I was informed, 
> says that a case where a man's wife falls ill is considered 
> an oneis, even though the man can hire someone to take care 
> of his wife. Since practically speaking that is not an option 
> it is considered oneis.

This does not seem to me to be relevant to the problem I have with the
psak.  The idea that an ones can be considered to be eey efshar
practically as well as physically was not something I thought was raised
as a problem.  The issue we raised  vis a vis the oneis question was
(and there were other issues):

does  oneis occur when the act is an "act of man" as well as when it is
an "act of G-d"?  I was mesupik about that, others argued the case more
strongly.  The Trumas Hadeshen does not seem to me to help here, as the
fundamental act causing the ones, the wife falling ill, is an act of
G-d.  Whereas here, the act that made the eey efshar, the act of the
kala, was an act of man, making it different. The fact that it made an
eey efshar practically rather than physically does not appear relevant
to the distinction being drawn.   As I mentioned though, I am mesupik as
to whether one can consider a act of a man an ones or not, and could see
the logic of it going both ways (for example in terms of torts, a human
being is, I believe, generally considered muad not onus, but this is not
exactly a tort case either).   However, I can also see arguments the
other way, ie that an act of man could be considered an ones, but would
like to see some halachic support for this, which it seems to me that
this particular Terumos Hadeshen does not provide (and neither does the
si'if in the Shulchan Aruch, as the acts of rivers and rain are clearly
acts of G-d).  Do you have another source where the act in question that
caused the ones was an act of man?  Could you ask the Rav you consulted?

> 
> The clincher? The author chose this scenario based on a real 
> story: A chosson had hired a popular Jewish singer to sing at 
> his chasunah. At the chasunah, his father-in-law informed him 
> that either the singer goes, or he (the f-i-l-) goes.

Who poskened that the chosson does not have to pay?  (The issue is not
whether the chosson might not choose to ask him to sing, but whether the
the lack of appreciation of the f-i-l and therefore the chosson choosing
not to have him sing pater's paying).  This case in fact seems even
further from the river case than before).

RMSS further wrote:

> I don't think one can apply Ishto k'gufo here. We're dealing 
> with knowledge here, and regardless of what halachic 
> realities is created by this concept it does not create 
> knowledge of what the other spouse thinks.

Not actual knowledge, but deemed knowledge vis a vis the worker.

Let me give you a case closer to that of the Shulchan Aruch.  Let us say
that the property that needs watering is originally that of the baal
habayis's wife, not his, and because he has only recently married her
and taken over the responsibilities for the field, he does not know that
the river stops on a regular basis - but in fact his wife and her family
do, as they have had the property for generations (and let us say for
some reason the workers are workers who also do not know - let us say
they come from the husband's town not the wife's town). Are you saying
that because the knowledge resides in the wife and not the husband who
does the hiring, then the workers have to bear the loss?  

Ishto k'gufo appears to be used in two different contexts.  The first is
where the acts of the wife can be deemed the acts of the husband such as
doing smicha on his korbanos, or lighting his chanukah candles.  In such
cases, the husband may not even know that the acts are being done, but
he is deemed to have done them.  Similarly based on this principle, why
would the hiring of singer such as Chaim ben Zundel by a man's wife not
deemed to have been done by him himself?  Especially if it is an act
that we know he would have agreed to had he known (we know he was keen
on the songs, so there is no question of ganivas daas here).  The second
concept is in terms of eidus.  Now again, eidus is about knowledge, and
yet the fact that somebody is related to the wife's side is enough to
take their knowledge out of the equation and deem it to be as though it
was on the husband's side.   So on the contrary, I think that the
halacha regarding ishto k'gufo is all about deemed knowledge.

On the other hand, because this couple had just gotten married, one
might think that the application of this principle was unfair, although
see the discussion in Sanhedrin 24b regarding applying ishto k'gufo to
where the woman involved is an arusa.

But the key reason why I did not feel that the river case applied here
had to do not with the technical relationship between the husband and
wife, but with the knowledge advantage that the chossen had over the
singer - ie of the kind of thing the kala (or father in law) was likely
to do, not because of specific knowledge of a particular act.

The key distinctiom IMHO drawn repetedly in that si'if of the Shulchan
Aruch was whether there was a knowledge advantage of the baal habayis
over the worker.  If no, the worker bears the loss, if yes, the baal
habayis bears the loss. And the knowledge advantage of the owner over
the workers does not seem to me to need to be that great.  As I pointed
out, si'if 2 of the Shulchan Aruch there deals with a case where the
river breaks its banks and waters the field, and in that case, in
general, the baal habayis has to pay, as he has greater knowledge of the
precise location of the field than the workers and hence the likelyhood
of flooding. However since location does not change the likelyhood of
rain there is no knowledge advantage to the baal habayis.  And in the
case of the river, if it does have a tendency to stop, everybody in the
town will know that this river has a tendency to stop, the owner and the
workers, so there is no knowledge advantage and thus the workers took on
the job effectively knowing that the river had a tendency to do this,
and so its tendency is built into the contract.  And if it does not have
a tendency to stop, there is again no way the baal habayis could,
without nevuah, have ascertained that it would stop, ie no knowledge
advantage.  Whereas in the case of the singer, knowledge of the reaction
of the kala (in hiring another singer, or of the f-i-l) does not seem
like standard knowledge of which any reasonable worker should be aware,
and it is more reasonable to expect a chossen to know what his kala or
his father in law will do than a worker (and at least he has access to
her to ask), making it seem to me more like the river flooding its banks
case.  So, ir seems to me, the key question is not whether it is an
oneis or not, but whether the baal habayis has a knowledge advantage or
not.  And it seems to me here he does.

Shaabat Shalom

Chana