The Israel Koschitzky Virtual Beit Midrash

Halakha: A Weekly Shiur In Halakhic Topics
Yeshivat Har Etzion

Shiur #06: COMPELLING IN THE INSTANCE OF MIDAT SEDOM (PART I)

HaRav Aharon Lichtenstein*

 

I

            Throughout the generations Sedom has symbolized ultimate evil and destruction.  This is the way Sedom is presented in the words of the Prophets, and in later periods the description of its nature and fate was further broadened.  This general meaning became crystallized in the expression "midat Sedom," behavior characteristic of Sedom: a shocking and frightening trait.  In the framework of Halakha, however, this term acquired a narrower connotation, as is the way of legal definitions.  On the other hand, the term was expanded from a concept that relates exclusively to the wicked of the world to a factor that is connected to the life of every individual.  This article will deal with the definition of the term in its halakhic formulation, and primarily with the clarification of a specific law connected to it: "We compel in an instance of midat Sedom (kofin al midat Sedom)."

 

            At the outset we shall briefly present the sources in Chazal that explicitly deal with compelling in an instance of midat Sedom.  This idea is mentioned in five places.  In two of them, the Gemara brings it as the foundation of some unclear dispute: the one, a Tannaitic dispute whether a separate shetar beirurin is written for each litigant, or whether they must share one;[1] the second, an Amoraic dispute whether a person may prevent his neighbor from opening a window facing into his courtyard, even if the window is higher than four cubits, so that there is no concern about hezek re'iya (damage suffered by a person because he is exposed to the gaze of others while he is in his private domain).[2] In both cases the Gemara concludes that "all agree that we compel in an instance of midat Sedom," but there is disagreement about whether these cases fall into the category of midat Sedom.

 

In two other places, the concept is mentioned almost incidentally in connection with specific laws.  In one place, it is asserted, regarding shitufei meva'ot (the merging of alleyways) that if a courtyard is situated between two alleyways, and it opens onto both of them, then - despite the fact that if it did not make an eruv with either of them, and it made more frequent use of the one alleyway than of the other, the courtyard only forbids the alleyway that it uses more frequently – "if the more frequently used alleyway made an eruv by itself, and the less frequently used alleyway did not make an eruv by itself, and the courtyard itself did not make an eruv, we force the courtyard to use the less frequently used alleyway, for in such a case, we compel in an instance of midat Sedom."[3] In the second place, which is closer to the matter at hand - civil law – the Gemara relates that a certain person leased his mill to another, and they agreed that the lessee would pay by providing the service of grinding the lessor's grain for free.  Eventually, the lessor purchased another mill, and therefore asked that in the future the lessee pay for his lease in cash.  Following a short discussion, the Gemara concludes that the lessee can refuse – but with one limitation: "This, however, only applies in a case where [the lessee] has no [other orders for] grinding at his mill [Rashi: 'and therefore he can say: Inasmuch as I am sitting idle, I would rather grind for you, and not pay in cash'].  But if he has [sufficient orders for] grinding at his mill he may in such circumstances be compelled [not to act] in the manner of Sedom."[4]

 

            A concentrated discussion of the topic is found in a passage dealing with the division of joint property, where this compulsion is the subject of an Amoraic dispute.  Three cases are discussed in that passage,[5] but all three branch out from one general problem: When a person possesses a field of his own adjacent to jointly-owned property, can he demand the portion of that property that borders on his own field? In explaining the details of the passage, however, the Rishonim paved diverse paths; we shall attempt below to understand the various positions.[6]

 

II

            As descriptions of isolated cases or laws, these sources give the appearance of being unimportant tidbits.  They do, however, reflect a common foundation that has ramifications for many, remotely connected matters; from this perspective they have an entirely different nature.  The fundamental axis is not so much the matter of the compulsion, but rather the definition of midat Sedom in and of itself.  In the aforementioned passages, we do not find an explicit definition; and to the best of my knowledge, there is also no other source in Chazal that describes this trait in abstract and universal terms.  The content of the concept itself, however, as it follows from the aforementioned sources, is generally speaking sufficiently clear: the practice of evil against, and even the denial of good from one's fellow, that do not stem from excessive egotism – this already would be an improvement, though it constitutes a problem of its own – but from insensitivity to his situation.  Borrowing a formulation that the Rabbis used in other areas, we might say that midat Sedom is doing evil in a spirit of defiance (lehakh'is), rather than to satisfy one's appetite (lete'avon), and in accordance with those who maintain that "one who does not care" falls into the category of lehakh'is.[7]  This concept and this reality have very broad significance.

 

            Leading Rishonim epitomized this content and some reformulated it with the expression found in a famous passage: "This one derives benefit and this one suffers no loss."[8] Indeed, if we need a precise and comprehensive definition, we will discover that it is the subject of controversy; and not just one controversy but multiple controversies.  The first is found in the only Mishna that explicitly mentions midat Sedom among its classification of human attributes: "He who says: 'What is mine is mine, and what is yours is yours' is an average character; some say that this is the character of Sedom (midat Sedom)."[9] This, of course, is not a formal definition, but merely a judgment and assessment of a particular detail.  Clearly, however, this judgment sheds light on the parameters of the trait in general.  We must still, however, consider three interwoven questions: 1) What is the Mishna dealing with? 2) On what point do the Tannaim disagree? 3) How does this Mishna relate to the issue of compelling in the instance of midat Sedom?

 

            When we examine the explanations offered by the Rishonim, we see that they adopted various approaches.  On the one hand, Rabbenu Yona emphasizes that the Mishna is dealing with a spiritual quality, rather than an action or its absence.  The Mishna is not referring to one who refrains from giving charity, for such a person is "a totally wicked man… Rather, here we are dealing with a person who gives charity out of the fear of God, though by nature, he is miserly.  Therefore, since he supports the poor and needy, what do I care about his nature, and the quality itself is average.  But some say that it is midat Sedom, and that its root is exceedingly evil, since by nature he is miserly."[10] According to this, the Mishna discusses the degree of importance that must be attached to objective and subjective factors – though from a halakhic perspective, one must consider both of them, that is, the source of the action and its result – as the determining factors of ethics.  Following this approach, it is necessary to distinguish between the midat Sedom discussed in the Mishna and that which is mentioned in the Gemara in connection with compulsion.  Despite the importance of the heart's intentions in Halakha in general and in connection with the mitzva of giving charity in particular,[11] the courts will clearly not compel "one who gives charity out of the fear of God, but by nature is miserly," to give charity out of joy.[12]

 

            This distinction follows also from a comment of Rabbi Shimshon ben Tzedek, author of the Tashbetz – though in an entirely different form.  First of all, according to him, "this Mishna does not deal with the trait of charity until the other Mishna where we learn that there are four types of donors to charity.  This Mishna speaks of the acts of kindness that well-to-do householders perform for each other." Second, in accordance with his general position that "there is no disagreement in this tractate (Avot)," the author of the Tashbetz suggests that there is no fundamental disagreement between the two positions, for the second position is not dealing with real midat Sedom: "… The first Tanna maintains that a person of average character is permitted to maintain that character"; and thus, "the [second] Tanna comes only to add that this character involves evil that is close to midat Sedom… He who never provides his fellow with benefaction, if this quality grows in him, will come to withhold benefaction from another person even in that which causes him no loss… And this was midat Sedom… And about this quality, Chazal said: We compel in an instance of midat Sedom."[13] He seems to understand that the definition of the trait is, in the sense of the talmudic passages, "this one derives benefit and this one suffers no loss." But the case of "one who says: 'What is mine is mine, and what is yours is yours'" is not included in this definition, for here he would suffer a loss if he gave to others.  The Mishna is dealing exclusively with a sort of protective measure - a decree regarding "this one derives benefit and this one suffers a loss" because of "this one derives benefit and this one suffers no loss."

 

            As opposed to Rabbenu Yona and the Tashbetz, several Rishonim inclined to identify the midat Sedom mentioned in the Mishna with the subject of the talmudic passages.  This identification was explicitly suggested by Rabbenu Bachya ben Asher.  In the course of his explanation of the former, Rabbenu Bachya refers also to the latter: "And, therefore, our Rabbis, of blessed memory, saw fit and ruled that we compel in an instance of midat Sedom; this one derives benefit and this one suffers no loss – this is midat Sedom."[14] This identification also follows from the words of Rashi.  In his commentary to the passage in Eruvin, Rashi explains: "Midat Sedom – that even when he suffers no loss, he does not benefit his fellow." And in his next comment, he adds: "Midat Sedom – what is mine is mine."[15] Thus, we see a three-fold connection – between the Mishna in Avot, the talmudic passage dealing with the principle of "this one derives benefit and this one suffers no loss" and the law of "compulsion in an instance of midat Sedom."

           

            It would seem to follow then that the Tannaim disagree about the principle of "this one derives benefit and this one suffers no loss." Some Rishonim, however, appear to have been unprepared to accept this conclusion; and therefore they were forced to explain that there is no disagreement whatsoever in the Mishna.  In one form we find this in the commentary of Rabbenu Bachya: "The first Tanna called this average character only because he is innocent of theft and doesn't covet his fellow's property.  But if others do not derive benefit from his property, it is certainly an evil trait in his soul, and this is midat Sedom."[16] The Meiri indeed sees the two designations as contradictory, but he argues that they do not relate to the same circumstance.  The "some say" are dealing with an actual case of "this one derives benefit and this one suffers no loss," "but [in] the first case, were he to benefit [his fellow], he or his property would suffer a slight loss, even though the other person would make his own property available in similar circumstances.  Such withholding, since there is a loss, is not midat Sedom, for he does not want to cause a loss to others or to be caused a loss by others."[17]

 

If, however, we assume as did other Rishonim, and as is implied by the plain sense of the Mishna, that the Mishna reflects a real difference of opinion, then it turns out that the law of "this one derives benefit and this one suffers no loss" is the subject of controversy.  From a purely interpretive perspective, it is possible to understand that the first Tanna denies the very concept.  From a moral perspective, however, this explanation is exceedingly difficult.  Is it possible that one of the Tannaim – and one whose position is presented anonymously – would make peace with a person withholding "something that causes him no damage but could benefit another"? Is there a hardening of the heart greater than the refusal to extend help to another person, in a case where the helper would not suffer any loss, neither to his person nor to his property? By what moral standard can insensitivity of this sort, and even worse than this, be referred to as "average character"?

 

            Anyone who is sensitive to the values of Chazal and connected to their ways of thinking is forced then to adopt a different approach.  And indeed when we carefully examine the wording of the Mishna, we see that a distinction can be made – even according to Rashi and Rabbenu Gershom - between the Mishna and the talmudic passages.  Withholding benefit from one's fellow without accruing any advantage to oneself is possible in two ways.  The first is embodied in a specific and particular case, in which the determining facts are clear.  A person moves, and throws the extra set of keys to his old apartment into the sewer, rather than passing them on to the next tenant.  A person has tickets to a series of cultural events, and while he cannot take full advantage of them, refuses to give the unused tickets to another person.  In such cases, we unquestionably are dealing with midat Sedom.

 

The Mishna, however, is not dealing with this type of "this one derives benefit and this one suffers no loss." Rather, the Mishna is dealing with a personality trait, or to put it differently, a way of life.  The withholding of benefit from one's fellow does not take place in a narrow framework where the injustice is blatant.  It is rooted in one's general conduct and approach – and especially in an exaggerated emphasis on privacy and a distorted idea of ownership.  A person who shuts himself in his four cubits, who denies, and perhaps even loathes sharing and partnership; who agrees to open his hand to the unfortunate, but not to extend it to his neighbor; who knows and recognizes that his position reduces his own pleasure and the pleasure of his fellow, but is ready, for the sake of his personal independence, to place the burden on the two of them – it is about such a person that the Tannaim disagree.  The result of such an approach – and almost certainly its proponent fully understands this truth – is a quantitative, and perhaps even qualitative reduction in the enjoyment derived by society as a whole from the totality of its assets.  In this point, the Rishonim saw a connection between our Mishna and the passage dealing with "compulsion in an instance of midat Sedom." But the means of this reduction are entirely different.

 

In the Mishna, the emphasis is not on direct refusal but on missing out on an opportunity.  Withholding benefit from one's fellow stems from a loathing of exchanging favors and productive sharing, and not from a specific hardening of the heart.  And, therefore, here, regarding excessive privacy that causes a reduction of benefit to one's fellow, without achieving any benefit for one's own person - there is room for a Tannaitic dispute.  Despite the saddening results, the first Tanna saw this quality – narrow-minded but not malicious, rooted in egocentricity, but not evil – as average character.  In contrast, the "some say" maintain that in the end we are dealing with insensitivity toward one's fellow, even where the person himself loses nothing.[18]

 

As for the purity of the root of this reservation in the yearning for additional privacy – "your guarantor needs a guarantor." Who can assure us that this reservation itself does not involve midat Sedom?[19] The fact that the position of "what is mine is mine" fills a subjective longing does not clear up the doubt – for we must not see the negation of every longing as a loss.  In defining "loss" the arbitrariness of a person's heart is not the only determining factor.  We must consider also the moral-ideal perspective to decide what disappointment should rightfully be regarded as a "loss." Even if the withholding of good from one's fellow is rooted in the desire to maintain a certain emotional identity, without any intention to cause harm, is it not possible that this approach itself involves midat Sedom?

 

The basis for this distinction is the unmediated nature of the injustice - is it clear and specific, or is it only the general, and sometimes even indirect, result of an overall way of life.  However, a second distinction connected to the definition of "loss" might also be suggested.  This may be understood though a brief review of the talmudic passages cited above.  Three of them suggest, as fact or as a possibility, that there exists a dispute regarding compulsion.  In two – which deal with the merging of alleyways and the leasing of the mill – it is stated definitively: "In such a case we compel for midat Sedom." How is this to be understood?

 

The answer seems to be rooted in a difference between the cases.  In the last two cases, the one who derives benefit does not actually use the other person's property.  The Eruvin passage relates to the attribution of the courtyard, on the theoretical level, to the one alleyway or the other.  In the Ketubot passage, the one who derives benefit encroaches upon the other person, demanding money instead of the service of milling.  But even there he does not actually enter his territory.  The relationship of ownership of an article as an article – not in the exclusively legal sense, but in the sense of a personal and emotional connection - does not exist with respect to money.  Money is meant to be spent.  Its value is symbolic and not intrinsic.  A person has nothing in money – unless he is a miser or a coin collector – other than its purchasing power.[20] Therefore as long as the owner of the mill does not suffer a monetary loss, he does not suffer any loss.

 

In the three other cases, on the other hand, the benefit involves the use of the other person's property.  Thus, it involves taking control of that property and the person himself.  It might be argued that such a situation can be regarded as a case where "this one derives benefit and this one suffers a loss." There is no monetary loss, but an emotional loss is certainly present.  Thus there is room for disagreement.  In one form, and in connection with compulsion, we encounter this phenomenon in three of the talmudic passages.  In another form, and in connection with the definition of midat Sedom itself, we see it in the Mishna.  The Tannaim do not disagree about whether "this one derives benefit and this one suffers no loss" is midat Sedom.  They do, however, disagree whether the negation of "what is mine is mine" is a loss.

 

As for the relationship between the three passages and the Mishna, this too does not constitute a problem.  The emotional loss that stems from constriction of absolute domination lends itself to gradation.  It is possible – and we cannot prove this one way or the other – that it is not as severe in the three talmudic passages as in the Mishna.  Joint possession of a shetar beirurin, for example, is one level.  A neighbor's use of his fellow's property – is a different level.  Therefore, even if we define the midat Sedom in both cases as "what is mine is mine and what is yours is yours," there is no need to identify the talmudic passages with the Mishna, or to assume that they can only be reconciled with the position of "some who say."

 

To be continued.

 

(Translated by David Strauss)