[Avodah] Ends-Driven Halachic Reasoning in the Aruch haShulchan?
zev at sero.name
Fri Jun 8 13:41:12 PDT 2018
I don't think it's accurate to say that mid'oraisa he doesn't have to
pay. If he really does owe the money then mid'oraisa he has to pay, and
has an *additional* obligation to pay this debt over all other debts,
because of "lo solin". The only question is whether he really owes the
money or not. Normally, the way the Torah left things, we can't be sure
he owes it, so we can't *force* him to pay; we have to leave it up to
his own conscience. But his obligation (or lack thereof) is unchanged.
Now Chazal come along and meddle with that setup, for social reasons.
In order to discourage defendants from falsely denying their liability,
and in order to give plaintiffs a sense that justice has been done, they
instituted the sh'vuas hesses. If you don't swear we'll make you pay,
despite the Torah saying we can't. According to you, how could they do
Here Chazal went a bit further: We can't make the defendant swear,
because he may honestly have forgotten or got confused, so we tell the
plaintiff that if he's willing to swear, not just hesses but binkitas
chefetz, then we'll believe him, and once we do believe him the *Torah*
says the defendant must pay.
Comes the Aruch Hashulchan and asks, what about the exceptional case
where the defendant is not confused and unlikely to have forgotten? And
what about other defendants who may be confused or have forgotten? And
he answers "lo plug" because there's a deeper reason for the takana
here. It's not just that we're worried about the defendant
inadvertently making a false oath; if he's really worried about that let
him pay up, but if he's not worried we won't be. The deeper reason why
we've given the plaintiff a slight edge here is that we're emulating the
Torah itself, which made the "takana" of "lo solin" for the explicit
reason that employees *in general* risk their lives and so deserve extra
protection. And just as it did not distinguish between employees, so we
I have a bigger question, though: This takana seems to be biased
*against* the employee whose employer is a yerei shamayim. Without the
takana the employer would decline to swear because he can't be sure he's
right, and he'd have to pay. Now we say no, you don't have to pay until
we test the employee, more rigorously than we were going to test you.
So mah ho'ilu chachamim betakanasam? It seems as if our real concern
here is not for the employee's welfare but to protect honest employers
from employee fraud! That's surely a worthy goal, but opposite to the
one the AhS posits.
Zev Sero A prosperous and healthy 2018 to all
zev at sero.name Seek Jerusalem's peace; may all who love you prosper
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