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

[Chana Luntz]

RMSS writes:

> What you term "act of G-d" or "act of man" are just synonyms 
> for "physically" or "practically".

I don't think I agree.  Let me use the case of oneis in nezikin because
it is easier to demonstrate the distinctions.

The act of G-d type oneis is dealt with in the general discussion about
nezikin by a person of somebody elses' money in Chosen Mishpat siman 375
si'if 1 - where it gives the example of somebody who is blown off a roof
and onto somebody else's kelim by a wind.  Within this example one can
see both the "physically" impossible and "practically" impossible
distinction.  A person might be blown off the roof with such force that
he has absolutely no choice but to land on the other person's kellim,
that is the physically impossible case, or he might theoretically be
able to turn himself in the air and avoid the kellim, but do himself a
physical injury in the process, that is the practically impossible case.

On the other hand, the act of man type oneis is not dealt with in that
siman, but in siman 388 si'if 2 which deals with the situation where
somebody forces a person to either hand over somebody else's property or
to show him where somebody else's property is so he can take it. Now in
such a case one does struggle to think of a "physically impossible"
scenario - a person can theoretically always let himself be killed
rather than submit, so if one is making a destinction between
"physically" impossible and "practically" impossible, act of man type
oneis is almost always going to fall within the practically impossible.
Similarly the act of G-d scenario is probably more commonly within the
physically impossible (and if it isn't, you then are likely to be
getting into grama versus garmi sorts of discussions).   But I don't
believe that means that the two distinctions are synonomous.

Whether that means that the din change between the two cases is less
clear.  In the case of an act of G-d a distinctions is drawn (in the
Rema there in siman 375:1)) between an oneis gamor and an oneis that is
not gamor (if it is an oneis gamor one is exempt, if it is not and the
oneis is directly by a person then one has to pay).  In the case of the
act of man situation, the Rema makes it clear that it is only considered
to be an oneis if it is by way of physical threat (hitting and issurin)
but not if the threat is by way of money.  If one does want to equate
the two, one would have to say that physical threat is the equivalent of
an oneis gamor, and that oneis mamon is not oneis gamor, but it is
certainly not pashut that they are equivalent.

 >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).
> 
> How so?

The reason why I said it was further from the river case is that in the
case in the book, Davidi really couldn't sing - as there was another
singer there to sing, who was always going to take preference given the
songs in question, and realistically there was only one slot for a
singer.  But at least it was like the river case in that there was just
nothing the worker could do as the possibility of doing his job had
disappeared.

In the case of an upset f-i-l, there was indeed still a slot for the
singer to sing, and a singer willing and able to sing, and no doubt the
rest of the guests would have enjoyed the singing very much, just it
would also have resulted in an upset f-i-l.  The singer could presumably
have defied the chosson and got up and sung, and the guests might well
not have been the wiser (the most they might see is the f-i-l storming
out).  At that point, the singer presumably, having performed his work
as originally agreed with the chosson, could ask for his money.

 If there is an oneis the BHB doesn't have to pay. 
> Since fighting with one's f-i-l (right at the chasunah!) is 
> not a practical option, the chosson is considered an oneis.
> 

If you think about this though, if one follows through this line of
reasoning the result would be that contracts would never being binding.
You sign an agreement - any agreement, name whatever agreement you wish.
Then you go home and your wife decides she doesn't like it.  That means
you suddenly have shalom bayis problems, and according to this, you are
now an oneis and are no longer bound to keep your agreement.  And it is
not just your wife, but your father in law or your next door neighbour
(whom you don't want to offend) or your boss, or your co-worker in the
office with whom you have to get along, or, or or ..  Where do you draw
the line regarding your "not a practical option"?  It seems to me that
when it comes to somebody else putting pressure, the most obvious
practical line is where the Rema drew it - if another person is
physically threatening to hurt you if you do not act, that is oneis, but
emotional blackmail or monetary pressure do not cut it.

> >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?
> 
> Yes. Why do you think otherwise? The halacha is explicit, the 
> BHB needs to have more knowledge then the poel in order to 
> have to pay him. How does his wife knowing something create 
> this knowledge by him? (In the case you gave BD might assume 
> that if his wife knew, then most probably he did as well. 
> However, if he can prove that he didn't have any knowledge 
> then he wouldn't need to pay.)

Ah, but who is the baal habayit?  Technically property that comes into a
marriage in this way is nichsei malug, and the wife remains the legal
owner of the keren, although he is entitled to eat from the peros, and
hence arranges for the working of the field for so long as he remains
married to her (on divorce the property would revert to her).  So the
siman cannot be applied as straightfowardly as you think.

Note that, in a similar vein, if Devorah is indeed the one paying for
Chaim ben Zundel, then, after the marriage has occurred, unless they
have stipulated differently from most couples, in fact she is likely to
end up paying Chaim ben Zundel with money that is legally Yehoshua's.
Now if he is not deemed to have consented, then arguably the money she
is using to pay Chaim ben Zundel can be considered stolen money (this is
why baalei tzedaka are supposed to be careful about only taking a small
amount from a married woman, because a man is deemed to consent to his
wife giving small amounts of tzedaka, but they cannot know about and may
not necessarily consent to larger amounts).  Of course a wife is
expected to enter into normal financial transactions - but if you are
going to say that this transaction is so abnormal that Yehoshua's
consent cannot be taken as a given, then there appear to be problems on
that score.  Surprising your husband does not give you permission to
steal from your husband.  But, in the case in question, it seems fairly
clear that indeed, as Devorah had guessed, Yehoshua was delighted by the
arrival of Chaim ben Zundel and this is what everybody expected.  


> Does he go to the mikvah on 
> the day she goes? Why not? What happened to Ishto k'gufo? 

Ishto k'gufo does not mean that the person physically does what the
other one does - so it would never mean that he goes to mikvah on the
day she goes. If anything the opposite.  If she is able to light
channukah candles on his behalf (or do smicha on his animals), then he
is not physically lighting channuka candles or doing smicha, and yet he
has fulfilled his obligation.  Mikvah however is the other way around,
as it is her obligation not his, and it is not (so clearly anyway) ishta
k'gufa.   A more interesting question is why she cannot lay tephilin on
his behalf.
 
> Obviously, this halachic concept is not the panacea you make 
> it out to be.

I never suggested it was a universal panacea, but given the extent to
which, in the normal case, the finances and property rights of wife and
husband are interwined (as illustrated to some degree above) it seems to
me that the concept is effectively being utilised extensively in dinei
mamonos.

> 
> KT,
> MSS

Regards

Chana