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Beit Midrash Series Harav Avraham Yitzchak Hacohen Kook

At the Shabbat Table

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This segment is In memory of Maran Harav Avraham Yitchak Hacohen Kook zt’l, who’s yahrtzeit is on the 3rd of Elul. The questions and answers used this week are taken from his works on halacha.
(The following question comes from the book Orach Mishpat, page 234)
Charity Disparity
Yosef is a physics teacher, with an excellent reputation. Throughout his city, it’s known that no student, whether adult or child, comes away without understanding the material which Yosef has taught. Therefore, many people come to Yosef for private tutoring.
One evening, Yosef got a call from a non-Jew who lived in his area. "Hello, my name is Sam," the man said. "My son, Nate, could use some tutoring in physics. Do you think you could help him out?"
"Sure!" Yosef responded. "I just want to clarify about the cost, though, before we start. I charge $50 per lesson. In addition, if your son misses any lessons, you will still be required to pay the full amount. Is that alright?"
"Of course. I’ve heard that you’re an excellent tutor. I’m sure it will be worth every penny!" Sam responded, enthusiastically.
At the end of the first month, Nate handed Yosef an envelope, containing payment from his father. Yosef opened the envelope, and was surprised to see a check written out for $100. He got on the phone with Sam. "Hello, this is Yosef, Nate’s physics tutor. I wanted to let you know that Nate is doing very well, and I appreciate that you sent payment today, as scheduled. I had a question, though. We had agreed that the cost of each lesson would be $50. Four weeks have passed, and although Nate had to miss two of the lessons, we agreed that I would receive payment, even if he didn’t attend. So that comes out to $200."
"I don’t know what you mean. I think it’s ridiculous to pay, if Nate didn’t even show up," Sam interrupted. "I sent you a check for $100, and I think that should be enough."
Yosef decided not to argue. He would just have to let it go. He sighed and hung up the phone.
A few months went by. One day, Yosef’s phone rang, and to his surprise, he heard Sam’s voice on the other end. "Uh, Yosef, I don’t know if you remember me, but you tutored my son, Nate, in physics, for a little while," Sam began. "I was wondering if you could help me with something," "I would really like to give charity to people who live locally. I don’t personally know of any needy people. I know that Jews tend to give a lot of charity, so I was wondering if I could give you $400, and you could pass it on to people who need it.
Yosef was surprised and flattered by Sam’s question, and immediately agreed to the request. He started to think about who the ideal recipient for the money would be. It struck him, suddenly, that Sam actually owed Yosef $100, for the cancelled tutoring sessions. Is Yosef allowed to keep $100 for himself, and give the remaining $300 to charity?
Answer:
Maran Rabbi Avraham Yitzchak Kook, zt"l:
Because Sam clearly owes Yosef money, it is permitted for Yosef to retain $100, even though Sam intended for the money to go to charity. It is proper for Yosef to inform Sam of this. This is because, if Sam were to inquire later whether or not the money had been given, and Yosef would only tell Sam, at that point, that Yosef had kept the money, it would make Yosef look like a thief.
(A similar case is brought in masechet Bava Kama 27. There, the Gemara states that if one person unlawfully takes on object from another person, the owner of the object should not enter the domain of the thief, and retrieve the object. This is so that the owner will not look like a thief, himself. The Gemara states that it is preferable for the owner to "break the teeth of the thief" and inform the thief that the owner is retrieving the object.)
However, if Yosef did not lose financially, due to Nate’s cancellations (e.g. Yosef found substitute students, who took the time slots for the lessons which Nate cancelled), it would seem that the condition requiring Sam to pay would not hold. This is because the intention of that condition was to prevent Yosef from financial loss. If Yosef earned money during that time, despite Nate’s cancelation, then, ultimately, there was no loss caused to Yosef. In that case, Yosef should certainly give the entire amount, of $400, to charity.
(Rabbi Kook adds that the Shulchan Aruch states that it is improper to accept charity from a non-Jew, as related in Gemara Bava Basra 10b, unless there is a concern about maintaining positive relations with the government.)
******
(The following question comes from the book Orach Mishpat, page 216)
Acting for Money or Change?
Mazal tov! Yossi and Chana, who had been going out with each other for some time, decided to get engaged. Their family and friends were delighted to hear the news of the engagement, and the new chatan and kallah and their families began to plan the wedding.
However, as the weeks went by, it began to become clear that not everything was going so smoothly for the young couple. One time, it was a disagreement about the color of the flowers, and another time, there was a spat about what furniture to buy for their new house. Chana and Yossi, and those who knew them well, began to doubt whether the couple would remain a couple for very long.
Chaim, a close friend of Yossi, decided that it was time to take action. One evening, he invited Yossi and Chana over. The couple sat down with Chaim, and Yossi began to speak.
"I’m a little confused, Chaim. Why did you call us here?" asked Yossi.
"Yossi and Chana, I see what you’re going through, and I would really like to see if there’s a way I can be helpful."
"Just wondering, Chaim," Yossi paused. "You’re not trying to get in on the shadchan money, are you?"
"Money? I’m not doing this for money!" Yossi replied. "My goal in calling this meeting is nothing more and nothing less than promoting a positive relationship between the two of you. I see that you’re both going through a very challenging time, and the stress of engagement and wedding planning is leading to disagreements, which seem to be getting out of hand. You’ve both indicated that you might want to break the engagement. Both of you probably think that if you broke up, you would each find someone else, and live happily ever after. I’m sorry to disappoint you, but it doesn’t work that way. If you don’t learn to communicate with each other, and sort out your disagreements respectfully, don’t you think that those problems will just follow you into your next relationship? I really think it’s worth it for both of you to think seriously about ways to work together to improve your relationship with each other."
Chana and Yossi took Chaim’s message to heart, and, over the next few weeks, those close to them could see a marked change in their relationship. The arguments and angry words slowly began to be replaced with positive, constructive discussions. The wedding planning, which Yossi and Chana had thought to abandon, resumed full force, as the two of them eagerly awaited their upcoming marriage.
About two weeks before the big event, Chaim called Yossi on the phone. "Nu, when am I going to get my shadchan money, which you owe me?"
Yossi almost dropped the phone. "But Chaim, shadchan money?" he spluttered. "Chaim, you weren’t the shadchan!"
"I wasn’t the initial shadchan," Chaim explained. "But if not for my intervention, the engagement would have been broken."
"But you said yourself that you’re only having a meeting for our sake, for the sake of our relationship," protested Yossi. "You even said you weren’t doing this for money!"
"Of course I said I wasn’t doing it for money," countered Chaim. "If I had told you then that I would ask for payment, you wouldn’t have listened to what I had to say. Of course I wanted to be paid!"
Do Yossi and Chana have to pay Chaim?
Answer:
Maran Rabbi Avraham Yitzchak Kook , zt"l:
There is no obligation to pay Chaim the shadchan, since Chaim stated explicitly that he was helping Yossi and Chana because he cared about them, and not because he wanted money. Therefore, Chaim has no claim that he is deserving of payment. Even if he were to cause a couple to get engaged to begin with, this would be the law (if he had stated explicitly that he was just helping). Even more so in our case, because Yossi and Chana had not actually broken off the engagement. It is possible that, even without Chaim’s intervention, the couple would have gotten married. After all, amongst the Jewish people, there is a ban and a fine against one who breaks an engagement 1 .
However, if Yossi and Chana would like to go beyond the letter of the law, there is room to say that it would be worthwhile to pay Chaim. This is because he saved them from requiring the intervention of a court of Jewish law. It is not proper to get benefit from someone for free if the person did not intend to benefit the other (see Mesechet Shabbos 120 - ירא שמים לא ניחא ליה... ).
In summary, there is no obligation to pay Chaim, because he said explicitly that he is not seeking payment. However, if Yossi and Chana would like to go beyond the letter of the law, and give Chaim some amount of money, it seems that this is proper.

שבת שלום!
Translated from Hebrew by Avigail Kirsch.




^ 1. More specifically: The reason is that there is no real halachic obligation to pay a shadchan for making a shiduch, since we would assume that he was doing it for free to help his friend. We can learn this from the Shulchan Aruch (Choshen Mishpat, siman 373) who states that if someone tells his friend "come live in my courtyard," and, afterward, demands rent, the friend is not required to pay. This is because, through his speech and actions, the home owner indicated that he was inviting his friend as a guest, and not for his own financial gain.
This is technically the case regarding matchmaker payment, as well. If not for the fact that there is an understanding, nowadays, that one who acts as a matchmaker is entitled to payment, a shadchan who demands payment after services are rendered would have no legal recourse. Since the requirement to pay is only because of today’s minhag it can easily be canceled. In our case since Chaim stated explicitly that he was helping Yossi and Chana because he cared about them, and not because he wanted money, we should assume that he was doing it for free to help his friend.
Rabbi Daniel Kirsch
Rabbi Daniel Kirsch studied for many years at the famed Mercaz HaRav yeshiva in Jerusalem. He currently lives in Kedumim in the Shomron, where he studies at the yeshiva and teaches classes for adults. In addition, he teaches at an elementary school.
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