This week we learned Bava Kama 108 and 109. Here are some highlights.

Bava Kama 108: A tzadik in the moment

Reuven had a problem with recidivism. He would steal. Then he would feel bad. He would repent and return the stolen items. Then he would steal again. He would feel bad. He would repent and return the stolen goods. Then he would steal again. This happened 99 times. He had just repented when someone asked him to serve as a witness for a wedding. The question was brought to Rav Zilberstein: would Reuven be acceptable as a witness? At the moment he was not stealing. However, these moments had been fleeting 99 times already. Perhaps the court had a responsibility to suspect that he would return to sin and they may not accept him as a credible witness?

Our Gemara proves that he would be considered a kosher witness as long as he had not yet stolen again.

Rava had asked, if a watchman claimed that the deposit was stolen, swore there had been a theft, but then witnesses came and testified that it was a lie and he had the object, then the watchman repeated the same behaviors—he made a false claim of theft, swore and witnesses came; would he have to pay double twice? Rava ultimately concluded based on the word וחישימתו that he would have to pay double twice. Rambam (Hilchot Geneivah 4:5) rules, “One who claimed theft about the object that he was watching, swore, then witnesses came and testified that the object was in his domain, and he repeated his deeds—claimed theft, swore and then witnesses came and claimed it was still in his domain, even if he did this a hundred times, he would be obligated to pay the double penalty for each claim.” The Maggid Mishnah quotes others who asked, “Only an oath imposed by a beit din can create an obligation of paying a penalty. If a man volunteered an oath, he would never have to pay double because of such an oath. How did the court make him swear the second time? Once he had been proved to have lied with his first oath, he should have been considered a person whose words were suspected. How would the courts ever impose another oath upon him?” The Maggid Mishnah quoted their answer. The court knew he had repented. Since the court knew he was a penitent, they made him swear again. Rav Zilberstein pointed out that Rambam said the man might have been made to swear a hundred times. Apparently, even though he sinned, repented and returned to his sin repeatedly, the court would accept his return and keep treating him as a credible man. In light of this ruling, the same should hold true in regard to serving as a witness. Since he is a penitent now, even though we strongly suspect that tomorrow he will sin again, halacha judges him based on his current standing. If currently he is righteous, he can serve as a witness. If he stood under the chupah, together with a kosher witness, and witnessed the handover of the ring, the couple would be married. Halacha accepts a person who is a tzadik this moment, even though it knows he will likely return to sin.

Orchot Tzadikim writes that if a person repented and then repeated his misdeed, even if he did so many times, he can still return to Hashem and successfully change his ways. However, when he repents for the second time for the same sin he had performed in the past, his actions of penance should be more demanding and harsh than his initial actions of correction. Presumably, the same should be true about our scenario. His teshuva would be effective. However, each new time he repents for the same sin, he should do more to correct the misdeed than he did in the past.

One might challenge these claims from a statement in Avot D’Rabi Nasan. In Chapter 39 there we are taught, “Five do not have forgiveness…one who sins often and repents often.” This would seemingly indicate that one who repeatedly sins, repents and then returns to the sin does not garner forgiveness. However, Binyan Yehoshua explained the Avot D’Rabi Nasan in light of the words of Orchot Tzadikim. He taught that all can always repent. The Tanna was stating that for certain individuals the degree of atoning actions is a challenge. Much has to be done to wipe away the sin. One who sins, repents and then sins again must do more to gain atonement than someone who failed once. Eventually, what he must do is very difficult. However, he can do it. His repentance would be accepted. He can become a kosher witness, even though he is trying after many failures. (Chashukei Chemed)

Bava Kama 109: The greatness of tzedakah

Based on Sefer Chassidim, Mishnat Avraham taught that if one did not have enough money to purchase an Etrog, if he would give what he had budgeted for the Etrog to the poor, Hashem would consider it as if he fulfilled the mitzvah of Etrog. The verse (Malachi 3:15) declared that the Almighty will record and treasure the deeds of those who fear Him and are among u’l’choshvei Shmo, those who think of His name. One who wished to fulfill a good deed, but did not have enough means to do so, when he gives what he does have to the poor he is displaying how he thinks of Hashem’s name and will receive reward for his intentions. Mishnat Avraham felt that our Gemara was the source for this concept. Our Gemara discussed a case when an only child stole from his father, denied he did so, swore falsely, admitted that he lied in his oath, and then the father died. The Gemara taught that to gain atonement for his oath he had to expend money from his domain. He was obligated to take the amount that he should have owed to his father and give it to charity. It was impossible for the thief to fulfill his mitzvah of returning the stolen funds. Yet, through giving them to charity it was considered that he had accomplished the impossible task. This proves that giving to charity will count as the mitzvah one sought to perform but circumstances made it difficult for him to do so.

Rav Moshe Feinstein (Igrot Moshe Choshen Mishpat 1:88) was asked by a penitent if he could garner forgiveness by giving charity. It seems the man had stolen $100 from someone else. He wished to make a pledge in the synagogue that he would give $100 to charity. In his mind, he would intend to give the money he had stolen to charity. Those who would hear would think that he was giving to charity out of the goodness of his heart. He would be spared embarrassment, but he would still correct his sin. Rav Moshe ruled that such an act would not wipe away his sin. If he knew who he stole from, he was obligated to return the money to the person he victimized. Only when someone has stole from many people and does not recall who the victims are is he to donate the funds to communal needs. Even then, the funds should not be given to charity for the poor. They should be given to road repair, or a hospital, for then there is a chance that the victims will benefit. In addition, if someone made a pledge to give to charity, while in his heart he intended to use funds he anyway had to disgorge, halacha would not care about what was in his heart. Devarim shebelev einam devarim, words in the heart are not considered words. He made a promise to give a particular amount to charity, and that amount should be given besides the stolen monies that he must return to the person he stole them from.

Rav Yitzchok Zilberstein recorded an interesting charity question. A man was not blessed with children. He and his wife utilized fertility specialists. The treatments were expensive. The man felt very bad that he had to spend so much money. He made a vow: “If I am blessed with children I will give to charity at least as much as I spent on treatments. If I have a boy I will give 1,000 shekel. If I have a girl I will donate 500 shekel.” He was blessed with twins. How much should he give to charity?

Maharsham (Chelek Heh Siman 42) dealt with a similar query. He ruled that the man must pay 1,500. His proof was a Mishnah in Temurah (5:1). The Mishnah taught that if a person declared about his pregnant animal, “If it has a male inside its womb, the child is an olah, and if it has a female it is a shelamim,” and the animal gave birth to twins—one would be an olah and the other a shelamim. Tiferet Yisrael explained that the donor never thought the animal would have twins. Nevertheless, once twins are born, the male would have the status that he had tried to place upon a male calf, and the female would have the status he had sought to place on the female calf. As a result, the same would hold true in our case; he would owe both the vow for the boy and the vow for the girl to charity. (Mesivta, Chashukei Chemed)

By Rabbi Zev Reichman