The Music of Halacha: Hiding in Halacha
I become very uncomfortable when someone has justification, serious and valid halachic justification, for speaking negatively of someone else, known as Lishon Harah. I can’t argue with the justification. There are times when we are permitted to speak negatively of someone else. However, it makes me nervous. I feel as if it is a little too tempting to hide in halachah.
I recall a responsum of the Rashba, Rabbi Solomon Ibn Aderet (Volume II, #35) about just this sort of justification, what I have described as, hiding in halachah.
The city of Gerona in northern Spain was noted in the medieval period for its large Jewish community, as well as its great sages. Alongside the majority of pious and God fearing citizens of Gerona, there were also individuals in the community who did not lead exemplary lives. Jewish communities, unfortunately, have not been devoid of profligates and sinners, although we can say that such persons generally constituted a minority of a community devoted to God and His commandments.
It happened during the 13th century that one of the citizens of the community, whom we shall call Reuben, whose daughter had reached a marriageable age, a really managed a match for her with a certain Simeon, who apparently was a young man of dubious reputation. He was known to occasionally gamble, though not to access. A time was set for the wedding, and, as was customary at the time, it was agreed that penalties would be imposed upon the party that would violate the agreement. The documents were placed with a trustee who agreed to turn them over to the party that was willing to carry out the terms of the contract, so that the latter would be entitled to receive compensations if his demands were not met.
In the meanwhile, Simeon began to consort with people of unsavory reputation, openly flouted the accepted Jewish pattern of behavior, and became so unruly that he was actually placed under a religious ban. He devoted all his time to gambling which, in the course of time, became his sole occupation. When the time arrived for the wedding, Simeon insisted on going through with it. Rubin, however, refused to permit his daughter to marry the rascal. Although Rueben was aware that Simeon gambled, he could not have known before hand that his future son-in-law would turn out such a scrapegrace.
The would-be groom went to the trustee to obtain the document which entitled him to damages in case the contract was not fulfilled. Were he in possession of this document he felt that his case would be foolproof. The father, however, maintained that he owed Simeon nothing because his behavior had become so intolerable that he had to be placed under the ban. Simeon apparently, was not altogether ignorant of Jewish law and claimed that as long as he was not physically unbearable and thus subject to the Jewish law which compels him to grant a divorce (Ketubot 77a), he was entitled to marry his fiancée, because a woman is satisfied to marry anyone as long as he will be a husband to her (Kiddushin 7a). Besides, he maintained, the father already knew beforehand that he was a gambler.
The father, however, insisted that morally corrupt people are more dangerous than people suffering from foul diseases. The fact that Simeon was under the ban, he claimed, denied him the right of marrying (Moed Katan 15b).
This case was brought before the greatest Talmudic authority in Spain at the time, the Rabbi of Barcelona, the Rashba. In his responsum, the great Rabbi decided in favor of the father. He declared that the trustee was not obligated to give the documents to Simeon, since there was no clause included that the document be placed retro actively in the possession of the wronged party. Where this clause is missing, he explained, the law of asmachta, a non-binding consent to forfeiture on the part of the defendant if he does not carry out his agreement, is put in operation.
Moreover, since the fiancé is unwilling to marry the young man, the agreement of forfeiture is not binding: the father is in no position to make his daughter marry the man.
It is, in addition, a reasonable assumption that were the father to have known that the man would behave so notoriously, he would never have agreed to give him his daughter in marriage, anymore than she would have consented to marry him.
This reasonable assumption is grounded in the Talmud (Bava Batra 132a). Likewise, the argument that being under been he may not marry is supported by Rabbi Aderet.
In conclusion, even if the trustee had handed over the documents to Simeon, they would not have empowered him to collect compensation.
In this manner Jewish law protected a family from an unhappy marriage, and prevented a rascal from collecting compensation for his up noxious behavior and for making himself unacceptable as a husband.
The fact that this question was sent from Gerona to Barcelona, to the greatest rabbi of the generation, means that local rabbis did not know how to argue with the Halachic arguments of the gambler. He knew enough law to justify his claims. He had just enough knowledge to argue his case, and confuse all but the greatest sage of the generation. It’s dangerous when we use halachah to justify our behavior, when we, as we said, hide in halachah.
The next time we want to justify speaking negatively of someone else, let’s remember that when dealing with serious laws, those that protect someone’s reputation and life, it is not enough to ask just anyone, we have to ask a true expert, a real sage. The awareness that we have to ask, and the additional awareness that we must make an extra effort to find a true expert, will help us hesitate before we jump to a conclusion that we may see speak as we wish, and it will also allow us an opportunity to practice Yirat Shamaim, Awe of Heaven.