[Avodah] Mechallel Shabbos to destroy a non-kosher phone

[Chana Luntz]

[Cross-over from Areivim. -micha]

On 28/06/2012 4:11 PM, Andy Levy-Stevenson wrote:
> Just so I'm clear here: The question being discussed is NOT (1) whether
> one may take someone else's phone and destroy it?

And RZS replied:
>That's right, the Rebbe was clear that phones may be confiscated and
> destroyed, and there is no obligation to compensate the owner.

On what halachic basis? (Or is the claim that Rebbes are above the
halacha)?


>> Surely (2) is moot ... it's not your phone. Why would one believe 
>> it's permitted to steal and destroy someone else's phone?

>Because they have no right to have it in the first place.  Uvi'arta 
>hara mikirbecha.  If you see a Jew eating treif, do you not have the 
>right and obligation to take it from them and destroy it?

If it was a form of treif on which there was an issur han'ah - eg basar
v'chalav d'orisa then it has no value and therefore if stolen the ganav
would indeed be patur from paying. But if the treif was a form on which
there may have been an issur achila, but no issur hana'ah, on what basis
is he patur from paying?

But to even argue that a phone is an object the subject of an issur
hana'ah, we need some level of halachic justification. How can this
particular Rebbe just impose an issur hana'ah on the property of his
followers who do not agree to it (and clearly if they actually agreed,
despite being one of his followers, they would not have the phone)?

I notice you quote uvi'arta hara mikirbecha - but where do you find that
this pasuk entitles one to steal (even issurei hana'ah and certainly
something that does not have a din of issur han'ah)? It appears to
require one to bring somebody (or something, like a bird that has killed)
to beis din for judgment, and for a beis din to judge somebody who is a
treifa who has murdered - but where do you find on this pasuk the right
for somebody to go and remove even somebody else's property, even were it
to have an issur hana'ah on it (even if they would be patur from paying
if they did so)?

I wondered if in fact you were thinking about lo tishcon b'ohelotecha
avla - but even there, while it is forbidden to keep in one's house
a false shtar, or incorrect sifrei TanaCh, the solution in the latter
case that the Chachamim came up with when they discovered the people
were being lax about this was to pay the sofrim from the trumos halishka
to fix the sfarim, not to barge into their houses and confiscate them.
(Maybe the comparison would be to pay from community funds to provide
top notch filtering software and for experts to install such software).

The Benei Banim has a series of teshuvos (Shut Bnei Banim Chelek Sheni
siman 47, 48 and 49) regarding the halachic impermissibility of the common
practice in schools of taking the property of their students (such as
balls and the like), even if the intention is to return them at the end
of the day or the end of the term on the grounds that it is stealing
(this is a great one to raise at a shabbas/yom tov table where you have
a bunch of teachers as guests - you get howls of outrage about how this
is necessary and essential and a school cannot run otherwise). The shoel
of the Bnei Banim was similarly disturbed, and kept coming back on this.
In the second teshuva the shoel argues that since there is at least
theoretically a power for a Rav to hit a talmid, then surely there is
no problem with taking away his property temporarily in order to get him
to learn. And Rav Henkin says no. He points out that d'orisa the issur
l'hakot is pen yosif, not an absolute prohibition, but a prohibition not
to physically punish more than is required (not that he is recommending
corporal punishment for talmidim), while the prohibition on gezela is
absolute - and thus even if one might theoretically be entitled to use
corporal punishment on the talmid, one still cannot take away their
property, even with the intention to return it. (The final teshuva the
shoel comes up with the idea of getting the talmid himself to put the
property into a box, being presumably allowed to take it out afterwards,
without the teacher touching it, which Rav Henkin agrees is not a ma'aseh
gezel, although he rejects the other arguments put forward, such as the
applicability of hefker beis din hefker via the misrad hachinuch and
a tanai being put on attending the school, because a tnai against the
Torah is not valid and even if kiblu alehem it is an asmachta).

So even if there is a power of vigilantism that would allow one to prevent
another person from eating treif food (and not just an obligation on beis
din), it does not by any means follow that one can do this by stealing
the food.

So I repeat my question: what gives the Rebbe referred to the ability
to uproot the issur d'orisa of gezel by kum v'aseh, and to tell his
followers to do so (and if he does so, surely, given that ain shalich
b'davar averah, they are required not to dream of complying)?

Regards
Chana