[Avodah] Din Moser

[Yitzhak Grossman]

On Thu, 15 Jan 2009 12:35:24 +0200
Daniel Eidensohn <yadmoshe at 012.net.il> wrote:

> This is a very misleading statement. You are relying on the Tzitz 
> Eliezar based on the Aruch HaShulchan. Rav Moshe Feinstein and others 
> strongly reject this as R' Broyde acknowledges in his article. One posek 
> told me that this view in fact is only a minority view.

It is not at all misleading; on the contrary, your comments
misrepresent both my statement and the Halachic literature on the
subject.

First, a clarification.  I should have stated explicitly, although it
was clear from the context, that I was addressing the narrow question
of whether a contemporary moser is a rodef, not whether mesirah is
actually permitted today.

Your comments suggest that Ziz Eliezer is the sole lenient opinion, and
that most others disagree.  R. Broyde himself notes that R. Elyashiv is
quoted as taking the same view.  This position actually appears first in
Resp. Beis Yitzhak, cited in Pis'hei Hoshen (first footnote to Nezikin
Ch. 4 and in R. Broyde's article) as stating that "in contemporary
times, a moser of property is not under the rubric of rodef".

Rav Blau, one of the greatest contemporary experts on Hoshen Mishpat,
presents the issue as follows (ibid.):

"In the works of the Poskim we find limudei zechus on contemporary
kingdoms and governments, that moser doesn't apply.  But it is known
that these Halachos have been distorted by the censors, and sometimes
things have been written (or omitted) out of fear of the censor or the
government, or at least out of eivah, so it is difficult to deduce
anything from these statements.

But it still seems to me that there is a basis ('zad') in Halachah for
this: since the main stringency of moser mammon is that they will come
to kill him, it is possible ('yitachen') that in these countries where
there is a proper ('metukan') government, even though it is certainly
ab initio still prohibited, , but if it is certain that there is no
danger that they will kill him, it is only like a tort against
property, and all the stringencies of a moser against a person would
not apply.

But it is still possible that the punishment of jail is like mesirah
against his a, since there is a danger to life in imprisonment,
and also, even mesirah of property to the government can possibly
result in danger to life as a consequence of their investigations and
cross-examinations ('derishos va'hakiros'), and it is known that one
who falls into their hands, they have no compassion on him until he
confesses"

He subsequently cites the Beis Yitzhak mentioned earlier, and the
stringent opinion of Rav Breish cited by R. Broyde.  [R. Broyde also
mentions Rav Blau's analysis.]

As mentioned, Rav Breish is stringent, although Rav Moshe's position is
considerably less clear.  In one responsum, cited by R. Broyde, he
states only that mesirah is prohibited "where the punishment is
unfounded in Jewish law", and in all his various responsa prohibiting
mesirah cited by R. Broyde, he is only stating that mesirah is
prohibited, and not that we would treat a contemporary moser as a rodef.

Rav Ezra Bazri, as cited by R, Broyde, does apparently take a very
stringent view, but R, Broyde also cites Rav S. Wosner as adopting a
more lenient view.

Also note that contrary to your comment, I did not 'rely' on anything;
I chose my language very carefully for its tentativeness, writing:

"one who is "moser mammon kal" in contemporary times might not have
the status of rodef *might* not have the status of rodef, since the
assumption of the Poskim that any mesirah has the potential to lead to
the (unjust) death of the nimsar, which is the basis for the
aforementioned Halachah, *may* no longer hold"  [Emphasis added here.]

To summarize, Rav Waldenberg is far from being a da'as yachid.  Rav
Yitzhak Shmelkes, Rav Elyashiv, Rav Wosner and Rav Blau all at least
consider the possibility that the laws of moser, and in particular the
assumption that he is a rodef, do not remain unchanged today.  Tho only
ones who clearly maintain that he is still a moser are Rav Breish and
Rav Bazri (Rav Moshe, although he rules that mesirah is prohibited,
does not state explicitly that a moser remains a rodef, as above).
Your citation of some anonymous posek claiming that it is minority view
is not terribly persuasive without the information of who the posek is,
which authorities he believes are stringent, and exactly what he was
asked (permissibility or status as rodef) and how he responded.

R. Broyde's article is available here:

http://www.jlaw.com/Articles/mesiralaw2.html

Yitzhak
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