July 21, 2024
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July 21, 2024
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Rav Rephael Ankawa’s Choshen Mishpat Prowess

Rephael Tzvi Benguigui

Tracy and Moshe Benguigui named their new son “Rephael Tzvi” in part after “Rav Rephael Ankawa,” a great Moroccan rabbi. Not only is Rav Ankawa one of the greatest of the many distinguished Moroccan rabbis, but Moshe’s grandfather and great-grandfather were chavrutot with him! Needless to say, Tracy and Moshe are very enthusiastic about Rav Ankawa.


Rav Ankawa

Rav Ankawa is called the “Malach Rephael, the angel Rephael.” I had imagined that the Malach Raphael was a sage focused on Kabbalah study and performing miracles (along the lines of the Baba Sali). Therefore, when Moshe gifted me one of Rav Ankawa’s sefarim, the “Karnei Re’em,” I expected it to be a kabbalistic work.

I perused the sefer and, to my shock, discovered it is a large tract recording hundreds of monetary disputes he resolved! Upon closer look, I found that Rav Rephael Ankawa was an extraordinary talent at applying the Choshen Mishpat (monetary) section of Shulchan Aruch. The following are two sample cases that he brilliantly resolved.


More Merchandise Than Expected

Responsum number 33 deals with a case of a wholesaler who received packages that contained more merchandise than expected. “Reuven,” the plaintiff, imported cloth from Europe whose packages routinely included 60 items. He later discovered that a particular batch of boxes contained 70 items. However, before he noticed the extra cloths, he sold several packages to “Shimon,” the defendant—who sold the boxes of merchandise without seeing the extra 10 cloths. After noticing that the shipment contained 10 extra cloths in each box, Reuven demanded Shimon to pay for the additional 10 cloths. Shimon, in turn, claimed he was not responsible for paying since he sold the boxes he received without inspecting their contents.

Rav Ankawa ruled that Shimon was not obligated to pay Reuven for the extra merchandise and cited two Shulchan Aruch passages supporting his ruling. The first is Choshen Mishpat 232:18, which excuses a middleman who does not store the product he sells in his warehouse from responsibility for selling defective merchandise. In such cases, the Shulchan Aruch believes it is the buyer’s responsibility to inspect the merchandise before purchasing. If the buyer discovers the defect, the middleman will direct the buyer to deal with the wholesaler.

Rav Ankawa brilliantly applies this ruling to our case. He notes that the Shulchan Aruch teaches that the middleman is not expected to inspect the items he sells. Thus, in our case, the middleman is not expected to inspect the boxes’ contents before selling them to his customers. Therefore, Shimon is not responsible for paying for the extra 10 cloths he was unaware of. The second source is Choshen Mishpat 291:4, which holds a watchman responsible only for the value of the item he expects to guard. Thus, if the guard has good reason to assume the item is silver but unbeknownst to him, it turns out to be gold, he is responsible only for its value as silver—if it was lost under his watch.

Similarly, in Rav Ankawa’s case, Shimon had reasonably assumed that the boxes contained the usual amount of cloths he was sold in his many prior interactions with Reuven. Thus, he is responsible only for the cloths he expects to purchase, not the extra 10. Notice that Rav Ankawa’s case does not appear in the Shulchan Aruch. Instead, Rav Ankawa discovers the Shulchan Aruch’s underlying principle and adroitly applies it to the case at hand.


Rejecting a Gift to Repay a Loan

In responsum number 36, Reuven owes considerable money to his creditors. Reuven plans to move to another city where he has a job lined up to earn money to pay off his debts. However, Reuven’s relatives and friends offered to give him money to pay the money he owed to avoid the need to leave town. Reuven wanted to decline the gift. However, his creditors demanded that Reuven accept the gift, so that the debt would be discharged expeditiously.

Rav Ankawa ruled that Reuven had the right to decline the gift. He cites Shulchan Aruch Choshen Mishpat 278:10, which empowers a bechor (first-born son) to decline his extra portion (Pi Shenayim) in the inheritance if he wants to avoid having to pay his father’s creditors from the money he inherits. The bechor’s extra portion is regarded as a gift he may refuse to accept.

Rav Ankawa believes that kal vechomer (how much more so) in our case, where the proposed money is unquestionably a gift, Reuven has the right to decline it. Mishlei 15:27 teaches, “Sonei matanot yichyeh—those who shun gifts will live.” This is because the recipient will be beholden to the beneficiary. Instead, Reuven wishes to earn the money without a handout to discharge his obligations without being beholden to others. Rav Ankawa affirms that Reuven has the right to do so.

Once again, Rav Ankawa’s case does not appear in the Shulchan Aruch. Instead, Rav Ankawa discovers the underlying principle of the Shulchan Aruch and skillfully applies it to the case at hand.


Reflections on Rav Ankawa’s
Many Choshen Mishpat Teshuvot

Rav Gedalia Schwartz, zt”l—the av beit din (chief justice) of the beit din of America—once observed to me that the classic poskim, such as the Avnei Neizer (the same applies to the Igrot Moshe and Yabia Omer) have dramatically fewer teshuvot regarding their resolutions of monetary disputes that other halachic matters. Rav Schwartz explained that they did not want their decisions exposed to frivolous criticism.

In dramatic contrast, Rav Rephael Ankawa presents hundreds of reasoned decisions in “Karnei Re’em” and his other works explaining his monetary dispute resolutions. Apparently, Rav Ankawa earned the respect of the litigants to the extent that his decisions were beyond challenge.

As demonstrated from the above examples, his rulings are incisive and rock-solid. Thus, Rav Ankawa was positioned to leave a treasure trove of brilliant Chosen Mishpat decisions for dayanim of future generations from which to learn. It was helpful that Rav Ankawa was a successful merchant and had an excellent feel for business.


Conclusion: The Malach Rephael

It is stunning that a rav who specialized in resolving monetary disputes is given the moniker “HaMalach Refael.” Experienced dayanim know that at least one litigant often leaves beit din angry at the rabbis who judged them. If they were asked to give a nickname to the rabbis who adjudicated their case, “angel” would be the last thing they would call them.

Yet, despite this, Rav Ankawa was embraced as the “Malach Rephael.” His righteousness and honesty must have been as pristine as the brilliance of his halachic decisions. Thus, it behooves dayanim of all shades and stripes to devote much attention to Rav Anakawa’s masterful teshuvot. Such learning will undoubtedly “up their game” immeasurably.

What a zechut for the Benguiguis to name their child in part after Rav Rephael Ankawa. May Repahel Tzvi Benguigui emerge as a righteous and honest Jew like his glorious namesake!

Rabbi Jachter serves as the rav of Congregation Shaarei Orah, rebbe at Torah Academy of Bergen County and a get administrator with the Beth Din of Elizabeth. Rabbi Jachter’s 18 books may be purchased at Amazon and Judaica House.

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