Lesson #5 - “It’s not in Heaven” Judicial Decision Making
Rabbi Mordechai Silverstein
The Conservative Yeshiva
Bava Metziah 48b-49b
1. JUST AS THERE IS OVERREACHING IN BUYING AND SELLING, SO IS THERE WRONG DONE BY WORDS.
2. [THUS:] ONE MUST NOT ASK ANOTHER, WHAT IS THE PRICE OF THIS ARTICLE? IF HE HAS NO INTENTION OF BUYING.
3. IF A MAN WAS A REPENTANT [SINNER], ONE MUST NOT SAY TO HIM, REMEMBER YOUR FORMER DEEDS.
4. IF HE WAS A SON OF PROSELYTES ONE MUST NOT TAUNT HIM, REMEMBER THE DEEDS OF YOUR ANCESTORS, BECAUSE IT IS WRITTEN, (Ex. 22:20) “THOU SHALT NEITHER WRONG A STRANGER, NOR OPPRESS HIM.”
Our Rabbis taught: “You shall not therefore wrong one another (Lev. 25:17);
Scripture refers to verbal wrongs.
You say, verbal wrongs; but perhaps that is not so, monetary wrongs being meant? When it is said, “And if thou sell aught unto your neighbour, or acquire something from your neighbor [ye shall not wrong one another]” (Lev. 25:14), monetary wrongs are already dealt with. Then to what can I refer, you shall not therefore wrong each other”? [It must refer] to verbal wrongs.
– E.g., If a man is a penitent, one must not say to him, Remember your former deeds. – If he is the son of proselytes he must not be taunted with, Remember the deeds of your ancestors.
– If he is a proselyte and comes to study the Torah, one must not say to him, Shall the mouth that ate unclean and forbidden food, abominable and creeping things, come to study the Torah which was uttered by the mouth of Omnipotence!
– If he is visited by suffering, afflicted with disease, or has buried his children, one must not speak to him as his companions spoke to Job, is not thy fear [of God] thy confidence, And thy hope the integrity of thy ways? Remember, I pray thee,” who ever perished, being innocent?” (Job 4:6-7)
– If assdrivers sought grain from a person, he must not say to them, Go to so and so who sells grain, whilst knowing that he has never sold any.
– R. Judah said: One may also not show interest in a purchase when he has no money, since this is known to the heart only, and of everything known only to the heart it is written, “and thou shalt fear thy God.” (Lev. 25:17)
2. [Dispute between Amoraim over seriousness of monetary verses verbal disception]
– R. Johanan said in the name of R. Simeon b. Yohai: Verbal wrong is more serious than monetary wrong, because of the first it is written, and thou shalt fear thy God, but not of the second.
– R. Eleazar said: The one affects his [the victim’s] person, the other [only] his money. – R. Samuel b. Nahmani said: For the former (monetary) the money can be returned, but not for the latter (verbal) .
3. [An Amoraic discussion regarding Verbal deception]
– A tanna recited before R. Nahman b. Isaac: He who publicly shames his neighbor is as though he shed blood.
– Whereupon he remarked to him, You say well, because I have seen it [sc. such shaming], the ruddiness departing [the color leaves a person’s face] and paleness comes [upon him].
4. [Another Amoraic discussion of the subject]
– Abaye asked R. Dimi: What do people [most] carefully avoid in the West [sc. Eretz Yisrael]?
– He replied: putting others to shame.
For R. Hanina said: All descend into Gehenna [the netherworld], excepting three.
5. [Surprise over how R. Hanina expressed himself]
All can you really think so! Rather say it this way: All who descend into Gehenna [subsequently] reascend, excepting three, who descend but do not reascend,
6. [Return to the words of Rabbi Hanina]
viz., He who commits adultery with a married woman, one who publicly shames his neighbor, or fastens an evil epithet [nickname] upon his neighbor.
7. [Question on a potential redundancy in R. Hanina’s words]
Fastens an epithet but that is putting to shame!
8. [Response to this question]
[It was referring to a person by an uncomplimentary name], Even when he has become accustomed to the name.
9 . [Meimra]
Rabbah b. Bar Hanah said in R. Johanan’s name: Better it is for man to cohabit with a doubtful married woman1 rather than that he should publicly shame his neighbor.
9a. [Proof brought from another Amora]
Whence do we know this?
– From what Raba expounded, viz.,
– What is meant by the verse, “But in mine adversity (b’tzalo) they rejoiced and gathered themselves together… they did tear me, and ceased not?” (Psalms 35:15)
David exclaimed before the Holy One, blessed be He, Sovereign of the Universe! You know full well that had they torn my flesh, my blood would not have poured forth to the earth. [Here ‘b’tzlao’ is taken to mean ‘his rib’, namely Bathsheba. This interpretation has David lamenting how they torment him over his sin.]
Moreover, when they are engaged in studying “Leprosies” and “Tents” [two tractates of the Mishnah] they jeer at me, saying, “David! what is the death penalty of him who seduces a married woman?” I reply to them, “He is executed by strangulation; still he has a portion in the world to come. But he who publicly puts his neighbor to shame has no portion in the world to come.”
10. [Another maimra on the subject]
Mar Zutra b. Tobiah said in Rab’s name others state, R. Hana6 b. Bizna said in the name of R. Simeon the pious others again state, R. Johanan said on the authority of R. Simeon b. Yohai: Better had a man throw himself into a fiery furnace than publicly put his neighbour to shame.
Whence do we know it?
From Tamar. For it is written, when she was brought forth, she sent to her father-in-law [etc]. (Genesis 38:25)
11. [Maimra offering a drasha on verse prohibiting verbal deception and abuse)
R. Hanina, son of R. Idi, said: What is meant by the verse: “You shall not wrong one another [amito]?” (Lev. 25:17)
Wrong not a people (am s’itha) that is with you in learning and good deeds .
12. [Maimra prohibiting verbal abuse of one’s wife]
Rab said: One should always be heedful of wronging his wife, for since her tears are frequent she is quickly hurt.
13. [Maimra on the subject of prayer and crying]
R. Eleazar said: Since the destruction of the Temple, the gates of prayer are locked, for it is written, “Also when I cry out, he shuts out my prayer.” (Lam. 3:8)
Yet though the gates of prayer are locked, the gates of tears are not, for it is written, “Hear my prayer, O Lord, and give ear unto my cry; hold not thy peace at my tears.” (Psalm 39:13)
14. [Maimra on relations between husband and wife parenthetical discussion]
Rab also said: He who follows his wife’s counsel will descend into Gehenna, for it is written, “But there was none like unto Ahab [which did sell himself to work wickedness in the sight of the Lord, whom Jezebel his wife stirred up]. (1 Kings 21:25)
R. Papa objected to Abaye: But people say, If your wife is short, bend down and hear her whisper!
There is no difficulty [between the answers of these two sages]: the one refers to general matters; the other to household affairs.
Another version [a different reconciliation of the difference between these two sages]: the one refers to religious matters, the other to secular questions.
15. [Maimra returning to the subject of verbal abuse]
R. Hisda said: All gates are
locked, excepting the gates [through which pass the cries of] wrong [ona’ah], for it is written, “Behold the Lord stood by a wall checked with a plumbline (anakh), and in his hand was a plumbline (anakh). (Amos 7:7) [This drash plays on the fact that word “anakh” has two consonants in common with “ona’ah” and consequently translates the verse “by a wall of wronging and in his hands were wrongs”, namely, God does not ignore the sin of verbal abuse “ona’ah”.]
16. [Maimra on the subject of the punishment for “wronging”]
R.Eleazar said: All [evil] is punished through an agent, excepting wrong (ona’ah), for it is written, “And in his hand were the wrongs.” (Amos 7:7)
17. [Another maimra regarding “ona’ah]
R. Abbahu said: There are three [evils] before which the Curtain [of the Divine courtroom] is not closed: overreaching (overcharging and verbal abuse), robbery and idolatry.
Overreaching, for it is written, and in his hand was the overcharging or verbal abuse (ona’ah). (drasha on Amos 7:7)
Robbery, because it is written, “Robbery and spoil are heard in her; they are before me continually.” (Jeremiah 6:7)
Idolatry, for it is written, “A people that provokes me to anger continually before my face; [that sacrifices sc. to idols in gardens, and burns incense upon altars of brick].” (Isaiah 65:3)
18. [A number of maimrot on how to avoid marital fights parenthetical discussion]
– Rab Judah said: One should always take heed that there be grain (food) in his house; for strife is prevalent in a house only on account of grain, for it is written, He makes peace in thy borders: he fills you with the finest of the wheat. (Psalm 147:14)
– Said R. Papa, Hence the proverb: When the barley is quite gone from the pitcher, strife comes knocking at the door.
– R. Hinena b. Papa said: One should always take heed that there be grain in his house, because Israel were called poor only on account of [the lack of] grain, for it is said, “And so it was when Israel had sown etc.”, and it is further written, “And they [sc. the Midianites and the Amalekites] encamped against them, [and destroyed the increase of the earth]”, whilst this is followed by, “And Israel was greatly impoverished because of the Midianites.” (Judges 6:-6) [Namely, because these enemies destroyed the grain, Israel was impoverished.]
19. [Another maimra on the subject of the dignity of one’s wife parenthetical]
R. Helbo said: One must always observe the honor due to his wife, because blessings rest on a man’s home only on account of his wife, for it is written, “And he (Pharoah) treated Abram well for her sake. (Gen. 12:16)
And thus did Raba say to the townspeople of Mahuza, “Honour your wives, that you may be enriched.”
20. [Story on God’s attitude toward verbal abuse]
We learnt elsewhere (MIshnah Kelim 5:10): If he cut it [the parts of an oven] into separate tiles, placing sand between each tile [to make a new oven]: R. Eliezer declared it [be ritually] pure [and incapable of becoming impure], and the Sages declared it ritually impure. And this was the oven of Aknai.
Why [the oven of] Aknai?
Said Rab Judah in Samuel’s name: [It means] that they surrounded it with arguments like a snake, and proved it [the oven] unclean.
23. [Baraita which relates the story]
It has been taught: On that day R. Eliezer brought forward every imaginable argument, but they did not accept them.
– Said he to them: If the halachah agrees with me, let this carob-tree prove it! Thereupon the carob-tree was torn a hundred cubits out of its place.
– Others affirm, four hundred cubits.
– No proof can be brought from a carob-tree, they retorted.
– Again he said to them: If the halachah agrees with me, let the stream of water prove it!
– Whereupon the stream of water flowed backwards
– No proof can be brought from a stream of water, they rejoined.
– Again he urged: If the halachah agrees with me, let the walls of the schoolhouse prove it, whereupon the walls inclined to fall.
– But R. Joshua rebuked them, saying: When scholars are engaged in a halachic dispute, what have ye to interfere?
– Hence they did not fall, in honor of R. Joshua, nor did they resume the upright, in honor of R. Eliezer; and they are still standing thus inclined.
– Again he said to them: If the halachah agrees with me, let it be proved from Heaven!
– Whereupon a Heavenly Voice cried out: Why do you dispute with R. Eliezer, seeing that in all matters the halachah agrees with him!
– But R. Joshua arose and exclaimed: It is not in heaven. (Deut. 30:12)
24. [A note injected into the text of the baraita]
a. What did he mean by this?
– Said R. Jeremiah: That the Torah had already been given at Mount Sinai; we pay no attention to a Heavenly Voice, because You (God) have long since written in the Torah at Mount Sinai, “After the majority must one incline.” (Ex. 23:2)
b. R. Nathan met Elijah [the prophet] and asked him: What did the Holy One, Blessed be He, do in that hour?
– He laughed [with joy], he replied, saying, My sons have defeated Me, My sons have defeated Me.
25. [Return to the baraita]
– It was said: On that day all objects which R. Eliezer had declared clean were brought and burnt in fire [since they were now considered ritually impure].
– Then they took a vote and excommunicated him.
– Said they, Who shall go and inform him?
– I will go, answered R. Akiba, lest an unsuitable person go and inform him, and thus destroy the whole world.
– What did R. Akiba do?
– He donned black garments and wrapped himself in black, and sat at a distance of four cubits from him.
– Akiba, said R. Eliezer to him, what has particularly happened to-day? Master, he replied, it appears to me that your companions hold aloof from thee.
– Thereupon he too rent his garments, put off his shoes, removed [his seat] and sat on the earth, while tears streamed from his eyes.
– The world was then smitten: a third of the olive crop, a third of the wheat, and a third of the barley crop.
– Some say, the dough in women’s hands swelled up.
26. [Another baraita continues the story]
A Tanna taught: Great was the calamity that befell that day, for everything at which R. Eliezer cast his eyes was burned up.
R. Gamaliel [the nasi or patriarch responsible for this situation] too was travelling in a ship, when a huge wave arose to drown him.
– It appears to me, he reflected, that this is on account of none other but R. Eliezer b. Hyrcanus.
– Thereupon he arose and exclaimed, Sovereign of the Universe! You know full well that I have not acted for my honor, nor for the honor of my paternal house, but for Your [honor], so that strife may not multiply in Israel!
– At that the raging sea subsided.
26a. [Continuation of the story in Aramaic a Babylonian continuation of the story]
Ima Shalom was R. Eliezer’s wife, and sister to R. Gamaliel.
From the time of this incident onwards she did not permit him to fall upon his face [in supplication – tahanun].
Now a certain day happened to be New Moon, but she mistook a full month for a defective one [and consequently she thought it was a day when there would not be tahanun and that she did not have to worry about him falling on his face in supplication.]
– Others say, a poor man came and stood at the door, and she took out some bread to him [and forgot for a moment that she had to prevent her husband from his supplications].
– [On her return] she found him fallen on his face.
– Arise, she cried out to him, You have slain my brother.
– In the meanwhile an announcement was made from the house of Rabban Gamaliel that he had died.
– ‘How did you know it? he questioned her.
– I have this tradition from my father’s house: All gates are locked, excepting the gates of wounded feelings (ona’ah).