- Rabbi David Bassous of Congregation Etz Ahaim, Highland Park NJ
Rabbi Harold Sutton of Congregation Bnei Yizhak, Magan David Yeshiva, Brooklyn NY
Gambling is a major growth industry in our era. Casinos, lotteries and slot machines are big business. This short article will try to examine the halachic ramifications of gambling.
Many Jews, even sensible and decent people may be involved in gambling infrequently, especially since numerous high class resorts often combine hotel facilities with gaming rooms and casinos.
Under discussion will be many of the traditional sources that bear on this topic directly and also some of the broader philosophical issues that may be involved. Some of the issues raised have major ramifications as to how a person may conduct himself in general aside from the issue of gambling.
The topics that will be discussed include the following:
The Halachic prohibitions involved in gambling.
- Not engaging in productive labor.
- Vows and Gambling.
The Philosophic prohibitions involved in gambling.
- The slippery slope.
- Lack of ‘holy’ behaviour.
- Wasting time.
- Bitul Talmud Torah.
- Peace at home.
- Wasting of financial resources.
The Halachic Prohibitions involved in Gambling
The Mishnah in two separate places addresses the issue of the worth of a gambler’s testimony in a Jewish court of law.
Tractate Rosh Hashanah Chapter 1 Mishnah 8 lists those that are disqualified from giving testimony about the ‘new moon’. Among others that are mentioned are two categories of people that concern us.
- ‘Mesahakei Kubia’ literally dice players or gamblers.[i]
- ‘Mafrihe Yonim’ literally pigeon-fliers or pigeon racers.
Both categories are disqualified to give testimony about the new moon in the Beth Din - the Jewish Court.[ii]
In Talmud Sanhedrin another Mishnah, in which there is a debate between the Hakhamim (Rabbis) and Rabbi Yehuda dealing with the ineligibility of these two categories of individuals from being judges or giving testimony[iii] in monetary cases is quoted as follows:
These are the ones ineligible to be judges or witnesses: One who plays with dice…pigeon fliers…Rabbi Yehudah said "When are dice-players ineligible to adjudicate or testify? When they have no trade but this, but if they have a trade besides this they are eligible."
Rashi explains Rabbi Yehudah’s view: A person whose sole occupation is gambling is not involved in doing anything useful. As a result, he or she is unacquainted with basic business law and commerce, and has no aversion to illegal activity. However, one who engages in some other form of occupation as well is not flawed in this way and remains eligible.
The Gemara bring down a debate about why a dice-player’s activity disqualifies him:
Rami Bar Hama says that the dice player is disqualified because the wager agreement he is entering into is an example of asmachta[iv], as each player consents to the terms of the game only because he expects to win. Since the loser does not willingly surrender the wagered amount, the winner is considered to be stealing when he collects, and is thus ineligible as a witness or judge.[v]
Rabbi Sheshat says this agreement is not considered an asmachta. According to this opinion the only situations that involve asmachta are when the individual relies on his own ability. Dice players realize that the outcome of the game is determined by chance and not their own personal skill[vi]. Rather, dice players are disqualified because they are not involved with furthering the general welfare of society.
The Talmud explains that the difference between these two opinions is the case where the gambler is also engaged in another profession.
Rami bar Hama would still disqualify the gambler by virtue of his accepting winnings based on a non-binding asmachta agreement, whereas according to Rav Sheshat he is eligible because his second occupation is socially useful.[vii]
According to Rami bar Hama the prohibition involved in gambling is not the gambling itself but taking the winnings which involves the ‘dust of robbery’.
According to Rav Sheshat there is no prohibition in taking the winnings, the problem is being a gambler. This occupation is distasteful, as it is non-productive and parasitic.
The Rambam[viii] (Hilkhot Gezelah Chap. 6 Halakhah 10) codifies that gambling between two parties is Rabbinically prohibited as the Rabbis classify it as robbery. Even though the winner took the proceeds with the full knowledge and consent of the loser, since he took his money for nothing, by playing, it is considered robbery. Similarly, wagering on animals and birds is prohibited rabbinically.
However the Rambam in Hilkhot Edut[ix] says that a person who plays dice is disqualified from giving testimony only if he is a professional gambler and has no other occupation, since he is not engaged in settling the world. He must be living of the proceeds of his gambling which is the ‘dust of robbery’[x]. Similarly a person who wagers on animal and bird races is disqualified if he has no other occupation except this.
There is an obvious contradiction in Rambam. In Hilkhot Gezela it seems that he decided the law according to the opinion of Rami bar Hama since he considered gambling as robbery. However, in Hilkhot Edut it seems that he decided according to Rab Sheshat, he only disqualified the gambler as a witness if he has no other source of income.
The commentaries[xi] on the Rambam conclude that while he holds like Rami Bar Hama and states that it is prohibited to gamble because of the ‘dust of robbery’, he nevertheless does incorporate some of Rab Sheshat’s reasoning by invalidating the gambler as a witness only if gambling is the main source of the person’s earnings.[xii]
However, Tosaphot[xiii] as well as some other Rishonim[xiv] disagree with the decision of Rambam and they formulate the halakhah according to Rabbi Yehudah’s opinion quoted in the Mishnah in Sanhedrin. According to their opinion most forms of gambling cannot be considered asmachta and the only prohibition of gambling is in a situation where the gambler has no other profession. This concurs totally with the opinion of Rab Sheshat.[xv]
The Tosaphot and the Mordechai[xvi] explain that even according to the above-mentioned opinion, which permits “dice playing” as long as one has another profession. It is only permitted to do so if the actual cash is placed on the table and the money is transferred to the winner immediately following his victory. If, however, there is no immediate cash transaction but rather the game is based on 'amanah', trust that the loser will pay, then even according to the more lenient viewpoint this is considered asmachta. There are those opinions that add that even when the cash is placed on the table, all players must jointly own the table.[xvii]
Elsewhere[xviii] the Mordechai further restricts the aforementioned leniency, by distinguishing between gambling that involves some form of skill and those that involve none. Only gambling that involves no skill is permitted according to this lenient opinion.[xix]
The Ribash brings down another approach to this question.[xx]The Ribash claims that even according to Rab Sheshat gambling is forbidden even if that is not the individual’s sole source of income since it is “a disgusting and abominable act that causes many to stumble”. According to this approach the only difference between Rab Sheshat and Rami bar Hama is the status of the money already won by the gambler,[xxi] however they both agree that one is forbidden to enter into a gambling arrangement. The Ribash admits that Rab Sheshat would only disqualify the gambler as a witness if he has no other means of livelihood.
The Shulhan Arukh follows the opinion of Rambam by classifying gambling as asmachta which would mean that the winner is not entitled to the proceeds of his winnings and retaining his illegal gains would be considered stealing.[xxii] Like Rambam, he also only disqualifies the gambler as a witness if gambling is his only means of livelihood.[xxiii]
This is a compromise position between Rab Sheshat and Rami Bar Hama.
The Remah however disagrees with the Shulhan Arukh. He decides the law according to the Tosaphot and Mordechai[xxiv] who permit “Dice Playing” as long as one has another profession. It is only permitted to gamble if the actual cash is placed on the table and the money is transferred to the winner immediately following his victory.
Gambling with a Non Jew
The Shulhan Arukh in Hoshen Mishpat (chap 370 hal 3) deals with the issue of gambling with a non-Jew. The Shulhan Arukh quotes two opinions
The first is a direct quote from the Rambam. He concedes that since we are dealing with only a rabbinic category of stealing, even according to Rami bar Hama, there is no problem of stealing when gambling with a non-Jew. Nevertheless, it is still forbidden to gamble with a non-Jew even if one has another profession because it is forbidden to involve oneself in mundane and wasteful practices. The second opinion cited permits gambling with a Non Jew provided that the individual has another means of livelihood aside of gambling. The Remah comments and says that the common practice follows the second opinion cited in the Shulhan Arukh and further permits, as discussed above, gambling even with a Jew.
It should be noted that the first opinion cited in Shulhan Arukh which forbids gambling with a non-Jew even if one has another profession (which is a quote from Rambam) can be understood in light of the Ribash cited above that even according to Rab Sheshat it is forbidden to gamble because he is involved in mundane matters. Since there is no problem of Asmachta with a Non Jew, Rami Bar Hama’s concern is alleviated and even according to Rambam we need only be concerned with Rab Sheshat in the situation involving a Non Jew. The two opinions cited in the Shulhan Arukh are the two ways to understand Rab Sheshat discussed above.[xxv]
The issue of the permissibility of engaging in lotteries is very pertinent to this discussion. Rabbi Israel Mizrahi in his responsa Peri Haares was asked about whether it was permissible to raffle off a Sefer Torah in the case where the scribe had trouble selling it. He responded that this would be permitted only if it could be ascertained that every purchaser of a ticket would formally renounce all rights to the Sefer Torah as a result of his purchase. This condition was seen as impractical by many later authorities.[xxvi]
Rabbi Yosef Haim in his responsa, Rab Pealim, after analyzing the aforementioned responsa quotes the Havot Yair (chapter 61) who stated that he permitted his students to raffle off a golden Kiddush cup. After much analysis Rabbi Yossef Haim concluded that when the raffle is for a specific object, as opposed to money, then since the participants in the raffle have no ownership over the object being raffled off the winner of this raffle is not guilty of robbery. The concern is in this case only with the sponsor of the raffle who may be guilty of stealing the money for the raffle since that money was acquired through asmachta. Rabbi Haim then goes on to say that it may be possible to exonerate even the sponsors of such a raffle since each person willfully forfeits total right to his money in return for an opportunity to win the object being raffled.
The issue of the permissibility of lotteries has been greatly debated by contemporary Israeli Rabbinic authorities. The topic of this debate is the Israeli national lottery “Mifal Hapayis”, where the prize of the raffle is not a specific object but rather a percentage of the money raised from selling the raffle tickets. Rabbi Ovadia Hedaya[xxvii] rules that such a lottery is permitted. He concludes that based on the rulings of the Peri Haares and Havot Yair as well as recorded from the “great Rabbis of Italy that have partaken themselves in these practices” it is absolutely permitted.[xxviii] Rabbi Ovadia Yossef [xxix] claims that such lotteries are absolutely prohibited by Jewish Law and that the winner of such a lottery is guilty of robbery. He goes on to say that not only according to Sepharadim who are bound by the Shulhan Arukh, who rules with Rambam like Rami Bar Hama, is such a practice forbidden. But even Ashkenazim, who may rely on the lenient ruling of the Rema, should desist from such a practice. He points out the relevance of the opinion of the Ribash, who claims gambling is forbidden according to all opinions. Itis an abominable act which brings grief and destruction to all those who are involved in it. Many people in this generation spend their entire life savings on lotteries on hopes of winning against all rational odds and end up destitute with no means of support.
Vows and Gambling
Should a person make a vow to stop gambling?
There is a section in the Shulhan Aruh, which deals with vows that are made to encourage a person to keep Jewish Law.[xxx]
In general Jewish law discourages a person from making vows and oaths.[xxxi] They are viewed as unnecessary pit falls. As the Talmud puts it “Isn’t it enough for you what the Torah forbade, why do you want to add to it?”[xxxii] However, in certain cases it is not only allowed to make a vow, it is even praiseworthy.[xxxiii]
One of the situations in which it is allowed to make a vow is if a person is fearful of transgressing a mitzvah.
Or if an individual is scared that he may be lazy and not perform a positive commandment, then it is a mitzvah to make an oath to perform the mitzvah.
Obviously if a person has no fear in breaking a vow or an oath there is no point in him making one.
Can a person annul a vow that was made to prevent him from gambling?
Tosaphot[xxxiv] quotes a story from the Talmud Yerushalmi about a woman who came before Rabbi Boon and asked him to annul her vow. He asked her what her vow was. The answer was that she had made a vow not to gamble. Rabbi Boon refused to release her from her vow.
The Shulhan Aruh[xxxv] in the Laws of Vows quotes the following:
“We do not annul vows that are made prohibiting a forbidden activity. Even a vow that prohibits a Rabbinically proscribed activity should not be annulled, for instance, a vow not to gamble should not be annulled.” The Shulhan Aruh continues that “if this vow was annulled some say the annulment is valid and some say that the annulment is invalid.”[xxxvi]
Rabbi Joseph Karo in the Bet Yoseph and Rabbi Eliahu Mizrahi are of the opinion that even if the person who made the vow is screaming and wailing that they cannot help transgressing it we are still not allowed to annul it.
The Rema[xxxvii] however says that if the person involved is incapable of fulfilling the terms of the vow then we are allowed to annul it.
The Hatam Sofer[xxxviii] rules that if the person already broke his vow then we may annul it retroactively to prevent him from transgressing this extremely important law.
The Slippery Slope
The Ribash[xxxix] claims that even those lenient authorities who say that gambling is not a form of robbery would agree that gambling is forbidden even if that is not the individual’s sole source of income since it is “a disgusting and abominable act that causes many to stumble”.
The Talmud in Shabbat 105b states that a person who rips his clothes in a rage or breaks his vessels in his rage or scatters his money in a rage should appear in your eyes as one who worships idols. That is the way of the evil inclination one day it tells you to do this the next something else until it finally persuades a person to worship idols. What the Talmud is teaching us is to nip bad actions in the bud before they get worse. This is the concept of a slippery slope, or one bad deed leads to another.
Rabbi Moshe Feinstein[xl] has an interesting responsa[xli], which deals with the prohibitions involved in doing drugs.[xlii] He discusses the slippery slope of addiction and strong desires that cannot be controlled. It is a very grave prohibition to engage in cravings that are uncontrollable. The biblical source for this proscription are the verses dealing with the ‘wayward and rebellious son’.[xliii] The parents would bring this boy to the elders of his city and say “This son of ours is wayward and rebellious; he does not hearken to our voice; he is a glutton and a drunkard.”
We see that the rebellious son had a tremendous and uncontrollable appetite, even though it was for kosher food, how much more so a person is prohibited from having uncontrollable desires for things, which are not essential for survival.
The Talmud[xliv] explains the rationale behind the strict and extreme penalty that is exercised in the case of the rebellious son, because, as a result of his uncontrollable urges to satisfy his desires for more food and drink, he will eventually steal from others. This is the ‘slippery slope’ an action though in itself seemingly innocuous has ramifications in terms of the future deeds of the person involved.
Non professional gambling may not be prohibited directly by all authorities however; it is prohibited for other reasons, one of which is this idea of the slippery slope. The gambler may turn to robbery to support his habit.
Ramban (Nachmanides) in his famous commentary on the Torah in Parashat Kedoshim (Leviticus 19:2) explains the Torah's enjoinder to be holy as a mitzvah to abstain from excesses in any desire.
"The Torah has admonished us against immorality and forbidden foods, but permitted sexual intercourse between man and wife, and the eating of certain meat and wine. If so, a person of desire could be passionately addicted to sexual intercourse with his or hers spouse and be among alcoholics and gluttonous eaters of flesh, and speak freely all profanities, since these acts have not been expressly proscribed by the Torah. Thus one can become a sordid person within the permissible realm of the Torah! Therefore having listed the matters which He prohibited altogether; Scripture followed them up by a general command that we practice moderation even in matters that are permitted.
One should minimize sexual intercourse except in the fulfillment of the mitzvah. He should also sanctify himself to self-restraint by using wine (and alcoholic beverages) in small quantities, just as the Bible calls a Nazirite holy for abstaining from wine and strong drink. A person should remember the evils mentioned in the Torah of drinking wine as in the stories of Noach and Lot. Likewise he should guard his mouth and tongue from being defiled by excessive food and by lewd talk...He should purify himself in this respect until he reaches the degree known as complete self restraint.... Cleanliness of hands and body (personal hygiene), are also included in this precept...G-d's main intent is to warn us that we should be physically clean and ritually pure, and separated from the common people who soil themselves with luxuries and unseemly things." [xlv]
According to Nachmanides perception of holiness, gambling would definitely fall into the category of unseemly things, which we as a holy nation should have nothing to do.
The Rema in the Laws of Shabbat discusses the issue of playing chess on Shabbat[xlvi] His concern seems to have been the problem of making noise by placing the pieces of shaped bone on the board. He concludes that since the intent is not to make the noise it is permissible to play.[xlvii] Rabbi A. Sasson argues that since there is no practical need to play chess on Shabbat it should be prohibited and so with other games on Shabbat. However in places where people do play these games one does not need to rebuke them.[xlviii] If a person is depressed or needs to refresh their thoughts, then playing chess on Shabbat would be allowed even according to the strict opinion.
The Minhat Yitzhak[xlix] discusses the general implications of playing games in general. He quotes the classic ethical work Reishit Hochma[l]: “Included in a session of scoffers[li]are those that play dice and other games, even though they do not play for money, which is prohibited because of robbery, it is considered a session of scoffers.
The Mitzvah of Talmud Torah
It is a positive commandment[lii] to learn Torah and teach it, as it says in Devarim 6:7, “and you shall teach them diligently to your children.”
The Sifri learns two things from this verse:
- There is a mitzvah to teach students. We find that the Torah in Kings 2 2:3 refers to students as children.
- There is a mitzvah to learn for oneself[liii]. “The words of Torah should be sharp and clear in a person’s mouth, that he should not stammer over them.”
The mitzvah to teach Torah to one’s children and grand children is learnt from Devarim 4:9: “and you shall make them known to your children and your children’s children.”[liv]
The purpose of learning Torah is to enable a person to understand the ways of G-d.
Three crowns[lv] were given to us:[lvi] The crown of the Torah; the crown of the priesthood and the crown of the monarchy. Aaron the brother of Moses and his descendants obtained the crown of priesthood. King David and his descendants were worthy of the crown of monarch. The crown of the Torah is available for every single Jew as it says:[lvii] The Torah was commanded to us by Moses and is the inheritance of the Community of Jacob. The crown of the Torah is of a higher nature than the other two.
There is no other mitzvah among all the other mitzvot worth as much as Talmud Torah. Talmud Torah is equivalent to all the mitzvot, because learning leads to action. Therefore learning Torah comes before other mitzvot. [lviii]
A person will first be judged on learning Torah before his other deeds[lix]. This is why our sages said that it is good to learn Torah whatever ones motives. A person who has ulterior motives and learns Torah will eventually purify their motives.[lx]
A person should learn to limit his other desires and learn more Torah.[lxi] A person should work as much as their needs and learn Torah the remainder of their time[lxii]. The more trouble a person has in order to learn Torah the more his reward.[lxiii]
To fritter away precious time for senseless and sometimes even destructive pursuits instead of engaging in Torah study is unfortunate and should be frowned on.
Shalom Bayit - Peace at Home
One of the problems caused by gambling is that of marital conflicts and even divorce.
Peace at home is an integral part of Jewish law. G-d’s ineffable name is even allowed to be defaced in the Sotah ceremony, in order to heal the marital situation of the couple.
The Rabbis instituted the mitzvah of lighting a candle before Shabbat to encourage a warm loving ambiance in the house.
Peace is the last thing we pray for in our amidah and is the prophecy for the end of days. Domestic harmony is prescribed by the Rabbis[lxiv] they advocated that: A person should spend less than his means on his own clothes and more than his means in honoring his wife and children.
The constant insistence on the value of the family as a social unit for the propagation ofreligious values and the significant fact that the accepted Hebrew word for marriage is ‘kiddushin’ sanctification had made the Jewish home the most vital factor in the survival of Judaism, much more than the school or synagogue.
Marriage in today’s society is under constant pressure, so much so that according to recent statistics divorce rates are in the 50% range. Even among the members of the observant Jewish community divorce rates are in the 10-20% bracket.
Lack of domestic harmony is usually the result of feeling short changed, and who feels short changed more than a woman whose spouse has a drinking, drug or gambling problem.
There are responsa from the rishonim that discuss the issue of gambling of the spouse and the breakdown of the family.
The Rosh (Rabenu Asher bar Yechiel) was asked about a person who was having marital difficulties. The husband did not want to divorce his wife but she did want to divorce him because of his gambling problem.[lxv]
The Ritvawas asked after a couple were engaged to be married and a certain amount of moment was promised as dowry by the family of the bride whether the bride’s family could withdraw from their commitments after they found out that their future son-in-law was a gambler.[lxvi]
The Rabbis in the Talmud[lxvii] ruled that a husband does not have the right to exact from his wife an accounting of her household allowance under oath. Either the relationship was one of trust or it was better to be terminated. Any relationship in which one party has destructive, uncontrollable addiction is bound to suffer.
Gambling is known to shatter lives and marriages, a Jew is prohibited from engaging in self destructive phenomena and is encouraged to engage in solid stable and productive relationships.
The Torah in Devarim 20:19[lxviii] commands the Jewish army besieging an enemy city (Bal Tashchit) not to uproot any fruit trees. This mitzvah is the heading for a very broad range of prohibitions involving the waste of resources for no useful purpose.
The Talmud in Rosh Hashana 27a[lxix] discusses the reason why the mouth of the shofar blown on fast days was plated with silver and not plated with gold. One of the reasons offered by the Gemara is that: ‘the Torah is concerned about the financial well being of the Jews’. To gold plate the shofar which is used for the tremendous mitzvah of arousing the people of Israel to teshuva and good deeds is considered inconsequential when juxtaposed with the concept of not wasting money.
Rashi quoting the Midrash in Parashat Vayishlach says that Yaakov our forefather after he had crossed his family and his belongings over the stream went back in the middle of the night to collect a couple of small utensils that he had left behind. So great was the care that Yaakov had for his belongings that he had earned with honest sweat and toil. He was not prepared to lose anything that G-d had blessed him with. This Midrash is really teaching that we must take tremendous care with the bounty that the Almighty blesses us with, and not waste anything useful.
The Talmud in Menahot[lxx] discusses the making of the twelve loaves of bread which were kept in the temple. It specifies that they had to be made with fine flour. This flour could be made on site to save expense.[lxxi]
Similarly the oil of crushed olives was allowed to be used to make the meal offerings although only oil from the first drops was allowed for the menorah.[lxxii]
The Talmud in Avodah Zarah 11a discusses the old custom prevalent in those times of burning expensive garments and articles of clothing in honor of Kings or Princes of the Jews who had passed away. Even though this was tremendously wasteful it had a rationale - to show extensive honor to the deceased. The Talmud comments that this type of burning of expensive, items was allowed only for Kings or Princes but for regular folk it is prohibited because of the law of not wasting (Bal Tashchit). This prohibition is codified in the Shulhan Aruh[lxxiii].
Rav Kook[lxxiv] in his book of responsa entitled Daat Cohen[lxxv] discusses the upgrades and modernization to a cemetery. He emphasizes that a lot of money should not be spent because this is a waste of public funds and is a transgression of Bal Tashchit, and the Torah is concerned with the financial well being of the Jews. Today we need more money to spend on important charitable causes which focus on the living. It is obvious that for everything the needs of the living come before those of the dead.[lxxvi]
The Talmud Ketubot 8b says that the Rabbis praised Rabban Gamliel for abolishing the custom of wasting tremendous amounts ofmoney on the burial of the dead.[lxxvii] Similarly it is forbidden to hang food on a coffin to honor the deceased because of the prohibition of being wasteful.[lxxviii]
The general rule in Jewish tradition has always been to do a lot of charity with the living instead of expending major expenses on the deceased.
Rabbi Tzvi Pesach Frank,[lxxix] discusses whether it is allowed to uproot fruit trees in order to build a sukkah in the space they were standing.[lxxx] He quotes a general rule[lxxxi] that if a person destroys something for the sake of performing a mitzvah it is not considered wanton waste but a productive waste in which case the prohibition of ‘Bal Tashchit’ is superseded by the performance of a mitzvah.
The source of this rule would seem to be the mitzvah of ‘keriah’ the ripping of a garment on hearing of the loss of a close relative. This rule would appear to be based on the well known dictum that ‘a positive commandment pushes aside a negative commandment.’[lxxxii] However, this is only true if the mitzvah cannot be performed any other way. If a person can build his sukkah elsewhere or use his friend’s sukkah for the mitzvah it would seem that he would not be allowed to cut down any fruit trees to build a sukkah.
The Sefer Hasidim[lxxxiii] discusses a case where a sofer wishes to bury a perfectly kosher page of a sefer Torah because he was not happy with the beauty and quality of the writing and he wished to re-write that particular page. The Sefer Hassidim concludes that the sofer would be allowed to bury the page even though this would appear to be wasteful and a transgression of ‘Bal Tashchit’ since there is a purpose of beautifying the Torah[lxxxiv]. His rationale seems to be that there is no prohibition of ‘Bal Tashchit’ if the waste has a constructive purpose. According to this line of reasoning cutting down fruit trees in order to build a sukkah which is only a preparation for a mitzvah may also be allowed.
The Talmud in Shabbat 140a[lxxxv] discusses the idea of eating expensive types of food when a person could get by on inexpensive varieties of meals. The Talmud concludes that since the expensive varieties maybe more nutritious they should be partaken off in order not to waste one’s own body. We see that the principle of Bal Tashchit applies to food and also to one physical well being. A person who does not look after himself and causes weakness or injury to himself also transgresses this mitzvah.
The Talmud in Baba Kama 91b[lxxxvi] discusses whether a person who does keriya - rends his garments for a deceased relative too much transgresses ‘Bal Tashchit’ and whether a person who injures himself is also in violation of this law.
The Shulhan Aruh discusses ‘Bal Tashchit’ explicitly in two different locations:
- In Orah Haim 170:22[lxxxvii] he discusses a person who drank from a cup of wine and was unable to finish the whole cup, he should wipe the rim of the cup because of disgust and give it to someone else to finish but he is not allowed to pour the wine to waste so as not to transgress the prohibition of ‘Bal Tashchit’. However, if he was drinking a glass of water and some water was left he may pour it away.
- In Yoreh Deah 349:4[lxxxviii] Rabbi Yoseph Karo discusses a custom which was prevalent in the time of the Talmud of throwing various belongings of the deceased into the grave with his body he comments: “Whoever increases throwing vessels into the grave transgresses the law of ‘Bal Tashchit’.
From Tosaphot[lxxxix] it appears that the prohibition of ‘Bal Tashchit’ does not only apply to fruit trees but is a Torah law applicable to other kinds of waste too.
However from the language of Rambam[xc] it appears that other types of waste are only forbidden by Rabbinical ordinance and not by the Torah.
The Rambam quotes the classic prohibition of not uprooting productive fruit trees and then goes on to say that:
Not only fruit trees are prohibited to be uprooted but whoever breaks vessels or rips clothes or destroys a building or blocks a stream or wastes food[xci] transgresses ‘Bal Tashchit’ from the Rabbis. (All these actions are prohibited if they are done in a wasteful manner.)
From the language of the Rambam it appears that destruction is forbidden only if an action was involved. However sometimes food can be wasted by no action involved. Just by a person not consuming the food or drink, it becomes stale and inedible. Does he still transgress a prohibition of ‘Bal Tashchit’ even though he was not the direct cause of it’s destruction, surely not.
It would seem that because the odds against ever winning anything are usually high a person who gambles in reality wasting money.
[i] There is debate among rabbinic authorities as to the exact meaning of the word Kubia. According to Rashi and the Arukh Kubia means any type of game of chance, but Rambam, Tur and Rabenu Yeruham define it as a specific game which is brought to represent all types of gambling.
[ii] These categories, however, are still qualified to give testimony regarding the death of a woman’s husband.
[iii] The Torah states (Exodus 23:1) Do not place your hand with an evildoer to be a thieving witness, from which the Gemara later on (27a) derives that one who is guilty of stealing is disqualified from testifying. Even one who does not steal, but transgresses a law in order to gain financially, is similar to a thief because both sin out of a desire for money. Thus anyone who violates a law for financial gain is, like a thief, ineligible to testify.
The authoritative ruling is that anyone who violates a Torah prohibition even without gaining financially is disqualified from testifying.
[iv] Asmachta literally ‘reliance’ is the term used in the Talmud for an agreement based on ones speculation. In general, an asmachta involves one party or both consenting to surrender to the other a certain sum of money, depending on the performance or outcome of a particular event. In each case the individual obligating himself enters into the agreement ‘relying’ that the outcome will be favorable and that he will not have to pay. Since a transfer of ownership requires that the object’s owner gave it willingly, an asmachta agreement is non-binding, because the obligated party never sincerely meant to obligate himself.
[v] Rashi. Also see Rashi in Shevuot 31a who writes that a dice player was deemed ineligible to be a witness by a rabbinical decree because he is considered by the Rabbis to be a robber. In Rosh Hashana 23a Rashi adds that according to Torah law a robber is someone who takes someone else’s possessions as it says “and he robbed the spear from the hand of the Egyptian.”
Rashi, Rabbi Solomon Yitzchaki (Rabbi Solomon ben Isaac) was born in Troyes, France in 1040 and died in Worms in 1105. He studied in the Yeshivot of Troyes, Mainz, and Worms. Rashi wrote commentaries on the Bible and the Talmud, which are considered indispensable for the study of these works.
[vi]Rashi comments that one of the paradigm case which defines asmachta is located in Baba Batra 168b. This case involves a debtor who pays 50 zuz of the 100 that he owes his creditor. The debtor, to assure the creditor that he will repay the remaining 50 zuz in a timely fashion, gives the note of indebtedness to a third party, and states that if he does not pay the balance by an appointed date the third party should return the note to the creditor thus enabling him to collect the entire 100 zuz. The debtor clearly does not really expect to have to pay the additional penalty, because he believes he will be able to meet his obligation on time. This case is therefore considered an asmachta agreement and the if the debtor is prevented from paying on time, he is not subject to the agreed upon penalty.
[vii] The Talmud explains that Rami bar Hama follows the opinion of the Sages in the Mishnah whereas Rabbi Sheshat explains both the Sages and Rabbi Yehudah’s opinion, since Rabbi Yehudah does not come to argue with the Sages but to explain them.
[viii] Rambam, Rabbi Moses ben Maimon (Maimonides) was one of the greatest Torah scholars of all time. He was born in Cordova, Spain in 1138, and died in Egypt in 1204. Rambam was familiar with every branch of contemporary science and philosophy and every realm of Jewish knowledge - Talmud and halakhah, philosophy and ethics He penned hundreds of responsa to queries from throughout the Jewish world. He also authored the Guide to the Perplexed, a philosophical treatise that attempts to reconcile Jewish belief with contemporary philosophy. Many of the philosophical concepts in this work were considered highly controversial. Rambam also authored Mishneh Torah (the "second Torah," also known Yad Ha-Chazakah), which summarizes the entire oral law clearly, concisely, and in organized fashion. Another work by Rambam, Sefer Hamitzvot, lists the 613 commandments and presents systematic criteria for the enumeration of these commandments.
[ix] Laws of Testimony Chapter 10 Halakhah 4.
[x] Prohibited by the Rabbis.
[xi] Kessef Mishnah and Lehem Mishnah. Similarly the Bah in Hoshen Mishpat 34 and Taz and Ran on Sanhedrin 26b. The Radbaz also follows this interpretation of Rambam’s opinion.
[xii] In which case the person is living off a Rabbinically frowned upon income. A proof for this approach deciding the law according to Rami Bar Hama may be brought from Shabbat 149b where it is stated that it is forbidden to cast a lottery even on a regular weekday to decide which member of the household will receive the largest portion of food. Rashi there comments that such a transaction is considered an asmachta since if each party is assuming that he will receive the larger portion, however had any party realized that he would not receive the expected portion they would not have agreed to take part in that lottery. The prohibition of such a practice would seem to indicate that asmachta is not considered a meaningful transaction.
[xiii] Erubin 82a
[xiv] Rosh, Ramban, Shut Harid Siman 19, Rif Sanhedrin.
[xv] Rashi’s reasoning for Rab Sheshat, as mentioned above, is that asmachta only involves situations in which the individual is relying on his own ability. Rabenu Tam (Tos. Baba Mesia 74a) states that asmachta does not apply to situations that involve more than one individual since each individual wholeheartedly accepts the risk of losing in exchange for the possibility of winning.
[xvi]Tosaphot Sanhedrin 24b, Mordekhai Sanhedrin Perek 3 Siman 691, this opinion is also quoted by the Bet Yossef Siman 207.
[xvii] Rabenu Yeruham quoted in Bet Yoseph 207 also Netibot Hamishpat Hoshen Mishpat 207.
[xviii] Baba Mesia Perek 5 Siman 323.
[xix] Other Rishonim agree with this restriction; Hagahot Maimoniot in Hilchot Mechirah chap 11 law 13, Hagahot Mordekhai Sanhedrin Perek 3 Siman 622. The Bet Yossef and the Remah quote these authorities in Hoshen Mishpat chap 207 law 13.
[xx] Rabbi Yishak Bar Sheshat. Shut Haribash Siman 432
[xxi] According to Rami bar Hama the winner has no right to claim his winnings and if he does he is guilty of robbery, whereas according to Rab Sheshat he may have lay claim to his winnings.
[xxii] Shulhan Arukh Hoshen Mishpat 370, the Shulhan Arukh classifies the winner as a Gazlan Miderabanan (a thief, classified as such only by rabbinic decree but not by Biblical Law).
[xxiii] Shulhan Arukh Hoshen Mishpat chap. 34 Halakhah 16.
[xxiv] Hoshen Mishpat chap. 370 hal. 3. It should be noted that there is a minority opinion quoted by Rab Pealim (Vol. 2 Yoreh Deah chap. 30) which states that even the Remah did not mean to totally allow gambling but rather exempt it from the category of asmachta. According to that approach gambling would at least be forbidden because it resembles an asmachta. The plain meaning of the Remah seems however, seems to contradict this approach.
[xxv] See the responsa of the great sage Rabbi Ovadia Yossef in Yabia Omer vol. 7 Hoshen Mishpat Siman 6 where he questions the Shulhan Arukh’s distinguishing between these two opinions, since the first opinion which is that of Rambam also allows gambling if one has another profession. In light, however of the interpretation mentioned above which interprets Rambam in light of the Ribash there seems to be no question.
[xxvi] Rab Pealim vol. 2 chap 30, Yabia Omer vol. 7 Hoshen Mishpatchap 6
[xxvii] Yaskil Abdi vol. 8 Yoreh Deah chap. 5 par 3 page 88
[xxviii] Rabbi Hedaya was apparently unwilling to distinguish between raffles for money and raffles for prizes.
[xxix] Yabia Omervol. 7 Hoshen Mishpat chap 6
[xxx] Nidrei Zerizin
[xxxi] Shulhan Aruh Yoreh Deah 203:1 “A person should frequently making vows. An individual who vows, even though he fulfills the vow is called a wicked person and a sinner.
[xxxii] Rabbi Eliezer Hakappar (Nazir 19a quoted by Rashi Numbers 6:11) asks why the Nazir had to bring a sin offering after the end of the period of his vow. He answered that the Nazir had afflicted himself by abstaining from wine. If a person who only deprived himself of wine and thus afflicted himself is called a sinner how much more so a person who afflicts himself by depriving himself of other permissible pleasures is a sinner.
[xxxiii] Yoreh Deah 203:7 A person who makes vows in order to improve and correct his actions is praiseworthy. For Example: A glutton who would gorge himself with meat and makes a vow prohibiting himself from meat consumption for a year or two. Or an alcoholic who make a vow not to drink again…a person who was carried away by his own good looks and makes a vow to be a Nazirite.
All this being said the Shulhan Aruh still concludes that a person should not over indulge in making vows and should not get used to making them.
[xxxiv] Gittin 35b ‘Kesavar’.
[xxxv] Yoreh Deah 228: 15.
[xxxvi] According to the guidelines of interpreting the law from the Shulhan Aruh. Whenever two differing opinions are quoted in the following language: Some say…some say we decide the law according to the second opinion.
[xxxvii] Rabbi Moshe Issereles author of the Hagha or Mapa died in 1572. An outstanding halachic authority, Rema lived in Krakow, where he served as head of the rabbinic court and yeshivah. He appended important notes (hagahot), which reflected Ashkenazic halachic practice, to Rabbi Joseph Karo's Shulchan Arukh.
[xxxviii] Kovetz Teshuvot 46.
[xxxix] Rabbi Yishak Bar Sheshat. Shut Haribash Siman 432
[xl] Rabbi Moshe Feinstein was born in Russia in 1895, and died in 1986. He was the leading halachic authority of American Jewry, and his responsa are widely circulated.
[xli] Igrot Moshe Yoreh Deah 3 Siman 35.
[xlii] This will hopefully be discussed in a later article.
[xliii] Deuteronomy 21:18.
[xliv] Sanhedrin 72a. ‘It has been taught: Rabbi Jose the Galilean said: Did the Torah decree that the rebellious son shall be brought before the Beth Din and stoned merely because he ate a measure of meat and drank a measure of wine? But the Torah foresaw his ultimate destiny. For at the end, after dissipating his father’s wealth, he will still seek to satisfy his gluttonous wants but being unable to do so, go to the cross roads and rob. Therefore the Torah said, “Let him die while yet innocent, and let him not die guilty.”
[xlv] In summary, Ramban explains this verse which contains the admonition to be holy as advocating moderation in the following six areas which are otherwisepermittedby the Torah:
a) Sex, even in a permitted form should be controlled.
b) Drinking alcoholic beverages should be done with moderation.
c) Gluttonous desires to over eat in order to satisfy base desires should be calmed.
d) Decency in speech by curbing one's tongue from uttering profanities.
e) Physical hygiene and cleanliness is a prerequisite for holiness.
f) Social discretion, separation from coarse and vulgar individuals who constantly engage in gratifying their desires.
[xlvi] Shulhan Aruh Orah Haim 338:5.
[xlvii] The Magen Abraham says that the pieces should be different from those used on weekdays so as not to appear to be ‘uvdin dehol’. The minhag was to use special silver pieces on Shabbat.
[xlviii] Kaf Hahaim ibid. Note 39.
[xlix] Rabbi Isaac Jacob Weiss was born in Poland in 1902 he became head of the rabbinical court of the Eidah Charedit in Jerusalem. Weiss was a noted halachic authority, and his responsa contain many rulings on contemporary technological, social, and economic issues. He died in 1989.
[l] Shaar Kedushah 12.
[li] King David starts his book of praise to G-d with the following line (Psalms 1:1): Praiseworthy is the man who walked not in the counsel of the wicked and stood not in the path of the sinful and sat not in the session of scoffers. But his desire is in the Torah of G-d, and in his Torah he meditates day and night.
[lii] Sefer Hahinukh Mitzvah 419.
[liii] The mitzvah to learn Torah is repeated in other verses: Devarim 5:1 “And you will learn and you will do.” See also Devarim 31:12 & Devarim 11:19.
[liv] The Sefer Hahinuch gives an interesting minimum for a father’s obligation to teach his son: “That the son will be able to read from a sefer Torah and understand the simple meaning of the words.”
[lv] I.e. three methods of attaining honor and elevated status.
[lvi] Language of the Rambam in Laws of Talmud Torah Chapter 3:1 from Talmud Yoma 32.
[lvii] Devarim 33:4.
[lviii] Megilla 3 and other places.
[lix] Rambam Talmud Torah Chapter 3:5. There are two opinions in the Talmud regarding the order of judgement. The Talmud in Sanhedrin 7a says that the order of judgement is first on learning Torah however, the Talmud in Shabbat 31a says that judgement starts with honesty in business. Tosfot in Sanhedrin 7a answers that a person who doesn’t learn Torah at all will be judged first on Talmud Torah, a person who learns Torah but does not fix times to learn will first be judged first on his business ethics.
[lx] Nazir 23 and many other places.
[lxi] Pirke Avot 6:9.
[lxii] Rambam Hil. Talmud Torah 3:9.
[lxiii] Pirke Avot 5:23 Ben He He says, “Reward is proportional to ones suffering for a mitzvah.”
[lxiv] Hulin 84b.
[lxv] Sheelot Utshuvot Harosh chapter 82:2.
[lxvi] Sheelot Utshuvot Ritva Chapter 146.
[lxvii] Ketubot 86b.
[lxviii] When you shall besiege a city for a long time, making war against it to take it, you shall not destroy its trees by forcing an ax against them; you may eat of them, and you shall not cut them down. For is the tree of the field a man that you should besiege it?
Only the trees that you know are not trees for food, you shall destroy and cut them down; and you shall build siege works against the city that makes war with you, until it is subdued.
[lxix] ON FAST DAYS THEY USED CURVED SHOFARS OF RAMS’ HORNS THE MOUTHS OF WHICH WERE OVERLAID WITH SILVER. Why in the other case should gold have been used and here silver? — If you like I can reply that for all public gatherings silver is used, as it is written, Make two trumpets of silver, or if you like I can say that the Torah wished to spare Israel unnecessary expense.
[lxx] Menahot 76b THE ‘OMER WAS SIFTED THROUGH THIRTEEN SIEVES, THE TWO LOAVES THROUGH TWELVE, AND THE SHEWBREAD THROUGH ELEVEN. R. SIMON SAYS, THERE WAS NO PRESCRIBED NUMBER FOR THEM, BUT THEY BROUGHT FINE FLOUR AND SIFTED IT AS MUCH AS WAS NECESSARY, AS IT IS SAID, AND YOU SHALL TAKE FINE FLOUR AND BAKE IT: [IT MAY NOT BE BAKED] UNTIL IT IS SIFTED AS MUCH AS IS NECESSARY.
GEMARA. Our Rabbis taught: [It was sifted] through a fine sieve and then a coarse one, and again through a fine sieve and then a coarse one. R. Simon son of Eleazar says, There were thirteen sieves in the Temple, one on top of the other; the uppermost retained the bran and the nethermost retained the fine flour.
R. SIMON SAYS, THERE WAS NO PRESCRIBED NUMBER FOR THEM. Our Rabbis taught: Fine flour and bake it: this teaches that fine flour was to be taken. And how do we know that even grains of wheat may be brought? The text therefore states and you shall take’, in any manner. I might think that this is so even in regard to all other meal-offerings; therefore the text states, ‘It’. This is so here, having regard to sparing [expense]. What is meant by having regard to sparing’ — Said R. Eleazar, The Torah wished to spare Israel unnecessary expense. Where is this indicated? For it is written, and you shall give the congregation and their cattle drink. Num. 20, 8. The miracle of providing water for the Israelites in the wilderness was performed also out of consideration for the saving of the cattle. This last passage, ‘
[lxxi] That they may buy wheat and grind it and sift it in the Temple. In this way much expense would be saved. Sifra on Leviticus 14:36. As the Shewbread was a regular weekly offering it was permitted to buy wheat and have it prepared in the Temple so as to save expense.
[lxxii] Menahot 86b Our Rabbis taught: [It is written.] ‘Pure’; [and the expression] ‘pure’ means nothing else but clear. R. Judah says. [It is written,] Beaten; [and the expression] ‘beaten’ means nothing else but pounded. I might then think that this pounded oil is not valid for meal-offerings. Therefore the text states, and a tenth part of an ephah of fine flour mingled with the fourth part of a hin of beaten oil. Why then did the text state, For the light? — Out of regard to the sparing [of expense]. What is meant by ‘out of regard to the sparing’? — Said R. Eleazar, The Torah wished to spare Israel unnecessary expense.
[lxxiii] Yoreh Deah 348:1 in the name of the Tur from the Tosefta.
[lxxiv] Rabbi Abraham Isaac Kook was born in Greiva, Latvia in 1865, and died in Jerusalem in 1935. The first Ashkenazic chief rabbi of modern Israel, Rabbi Kook played a major role in the rebirth of Jewish life in modern Israel. His love for the early pioneers (chalutzim), despite their anti-religious attitudes, was well known. Kook authored numerous works on a wide variety of subjects, such as philosophy, mysticism, Talmudic novellae, responsa, and religious poetry. Some of these works are still in manuscript. The yeshivah Kook founded in Jerusalem, Yeshivat Merkaz Ha-Rav, remains a major center of Talmudic study, and it aspires to promulgate Rabbi Kook's love of the land and people of Israel.
[lxxv] Yoreh Deah 212.
[lxxvi] See the Shach, Yoreh Deah 360:1.
[lxxvii] Masechet Semahot 9 says that a person who increases vessels to be burnt transgresses the law of Bal Tashchit.
[lxxviii] Yoreh Deah 349:4.
[lxxix] Rabbi Tzvi Pesach Frank was born in 1874, in Kovno, Lithuania, and died in 1960. He studied in Lithuanian yeshivot. In 1893, he immigrated to Israel, and continued his studies in yeshivot in Jerusalem. In 1907, he was appointed Dayan in the Jerusalem rabbinic court headed by Rabbi Samuel Salant, the rabbi of Jerusalem. Rabbi Frank was active in establishing the chief rabbinate of Israel, and he was instrumental in having Rabbi Abraham Isaac Kook appointed to this post. Frank served as rabbi of Jerusalem for decades.
[lxxx] Har Tzvi Orah Haim 2:102.
[lxxxi] From the Shiltei Giborim on Avodah Zarah 81.
[lxxxii] Rambam Hil. Tumat Tzaraat 10:5.
[lxxxiii] Siman 879.
[lxxxiv] This is only a ‘hiddur’ mitzva.
[lxxxv] R. Hisda also said: When one can eat barley bread but eats wheat bread he violates, you shall not destroy. (Deuteronomy. 20, 19. I.e., it is wasteful extravagance.) R. Papa said: When one can drink beer but drinks wine, he violates, you shall not destroy. But this is incorrect: destroying oneself by not eating nutritious food is worse. (To consume better food and drink is beneficial, not wasteful.)
[lxxxvi] I heard that he who rends [his garments] too much for a dead person transgresses the command, ‘You shall not destroy’ and it seems that this should be the more so in the case of injuring his own body. But garments might perhaps be different, as the loss is irretrievable. R. Yohanan used to say that his garments would honor him. R. Hisda whenever he had to walk between thorns and thistles used to lift up his garments saying that whereas for the body [if injured] nature will produce a healing, for garments [if torn] nature could bring up no cure. He must therefore be the Tanna of the following teaching: R. Eleazar Hakkapar Berabbi said: What is the point of the words: ‘And make an atonement for him, for that he sinned regarding the soul.’ Regarding what soul did this [Nazarite] sin unless by having deprived himself of wine? Now can we not base on this an argument a fortiori: If a Nazarite who deprived himself only of wine is already called a sinner, how much the more so one who deprives oneself of all matters? I.e. injures himself.
[lxxxvii] He quotes the language of the Orhot Haim on Masechet Tamid.
[lxxxviii] From Avel Rabbati 9.
[lxxxix] Baba Metzia 32b ‘Midivrei’ & Avodah Zara 11a ‘Okrin’.
[xc] Laws of Kings 6:10.
[xci] Besides the prohibition of Bal Tashchit there is also the prohibition of‘bizuy ochlin’ disgracing the food. (See Shulhan Aruh Orah Haim 171). For this reason a person should not give food which is edible by a human being to an animal. Rashi in Taanit 20a gives two reasons to prohibit the feeding of food that is edible for humans to animals. (a) Because he is denying the goodness that G-d blessed him with (by giving his food to the animal). (b) Because the Torah was concerned about the financial well being of Israel.