By Rabbi Yair Hoffman
Winter vacation. Poconos. Camelback. Skiing. Snow-tubing. Lines. Standing in line for what seems like eons.
And as one stands in line, the imagination begins to wander. So many young yeshiva students. What if, Heaven forbid, these yeshiva students decided not to give the snow-tube to the next person in line as expected? What if, on a lark, they decided to just take another turn, without waiting on the line again?
If this were to happen, challilah, what should our reaction be? Should we fulfill the mitzvah of “Hocheiach tochiach es amisecha” (Vayikra 19:17)? Perhaps doing so might magnify the chillul Hashem. They wear winter clothing; only the seasoned professional could identify their yeshiva mannerisms and origins. Chastising the theoretical offenders, even in private, might catch the ear of someone.
On the other hand, keeping quiet might lead to the creation of adults who care only about themselves, trampling upon the rights and belongings of others. Sweeping things under the rug just leads to an accumulation of junk, trash, and debris under the rug. Eventually a situation could erupt where one reads only about junk, trash, and debris. Isn’t this what happened with numerous financial scandals and cases of abuse? So much sweeping under the rug multiplies and festers.
Uh, oh. Lost in theoretical thought and the line moved up. Better move up too. And would a theoretical group of yeshiva boys even listen? Is there a mitzvah to tell someone something if you think he won’t listen? What is the nature of the mitzvah of tochachah? Is there a way to do it? Also, what exactly is the prohibition involved in cutting in line?
First and foremost, if one does give rebuke or tochachah, the Sifra in Kedoshim (Vayikra 6:4) explains that it must be done nicely and without embarrassing the offender publicly. The Gemara in Sanhedrin (107a) tells us that one who embarrasses his friend in public has no share in the World to Come.
Moving on to the issue of whether or not they will listen, there are many sources that need to be understood. The Gemara in Erachin (16b) states that you must continue giving tochachah to a person again and again to the point that he is literally going to hit you. Seemingly, this is an all-encompassing obligation.
The Gemara in Yevamos (65b), however, states that just as there is a mitzvah to say something that will be heard, there is also a mitzvah not to say something that will not be heard. This Gemara seems to hold a more nuanced view and needs to be understood in light of the Gemara in Erachin.
What should be done if you are sure that the offender will not listen to you? On this issue, there is a debate between the author of the Yereim (Rabbi Eliezer of Mitz) and the SMaG. Rabbi Eliezer of Mitz writes that when the offender is violating the Torah solely through negligence (shogeg), but not purposely violating it, then we apply the dictum that it is preferable for the offender to err unwittingly than to err wittingly (Beitzah 30a). If, however, he is sinning knowingly, then the onlooker is not exempt from his obligation of hocheiach tochiach.
The SMaG disagrees. His view is that even if the sinner knowingly violates the law, if the onlooker is sure that he will not listen, he should not attempt to straighten him out. The SMaG cites the Gemara in Yevamos.
How does the SMaG understand the Gemara in Erachin? Clearly, it is dealing with a case of where the person will ultimately listen. The Gemara is telling us how far the obligation goes-that one does not give up in this important mitzvah of tochachah if, ultimately, the person would listen. It seems that the Rambam resolves the difficulty between the two Gemaras in the same way (see Hilchos Deios 6:7).
The Nemukei Yosef seems to have another way to resolve the issue. He understands the Gemara in Yevamos to apply to an entire community, while he understands the Gemara in Erachin to apply to an individual.
The RaN in Beitzah, and the Rosh as well, differentiate between something that is explicit in the Torah and something that is not explicit, even though it is of Biblical origin. They would apply the Gemara in Yevamos as applying to cases that are not explicit in the Torah.
The Rema in Shulchan Aruch Orech Chaim 608:2 rules like the RaN as well as the Nemukei Yosef. He writes that the obligation to rebuke for something explicit in the Torah is only once. If it is for an individual, then the obligation is until he curses him or hits him.
In the case of cutting in line, what is the nature of the prohibition? It seems to be an issue of trespassing, believe it or not. The owners do not want you to cut the line unfairly, and you have no permission to be on the slopes if you cut the line.
How do we define trespassing? From an American law perspective, trespassing is the act of illegally going onto somebody else’s property without permission, which could just be a civil law tort (allowing the owner to sue for damages) or it could be a criminal matter.
What exactly is the halachic violation? The violation is actually that of stealing. The Talmud (Bava Basra 88a) records a debate between Rabbi Yehudah and the Sages as to whether borrowing an item without permission renders a person a gazlan, a thief, or whether he simply has the status of a borrower.
Rabbi Yehudah maintains that he does not have the halachic status of a thief, while the Sages maintain that he does. The Rif and the Rambam both rule in accordance with the Sages-he is considered a thief. Indeed, this is also the ruling of the Shulchan Aruch in four different places (C.M. 292:1, 308:7, 359:5, 363:5).
Does this apply in all cases? In the case of trespassing, there is no value per se in setting foot on the person’s property. While this may be the case, the Chazon Ish (B.K. 20:5) writes that the prohibition of sho’el shelo mida’as (one who borrows without permission) applies even when the item is not something that generally has a market value, and even if the value is less than that of a perutah.
But what about if the owner would have approved of it? Many people are thinking that if the owner were aware, he certainly would not mind. This last point is not so clear-cut. It has to do with the concept of yi’ush shelo mida’as. (That’s right, in the Gemara, Perek Eilu Metzios, that is often taught to sixth-grade yeshiva boys.)
Let’s go back to that famous debate between Abaye and Rava. If a person would have given up hope on a lost item, but didn’t know yet that he lost it, is the article considered to be abandoned? Abaye says not; Rava says yes. This is one of only six instances in which we rule in accordance with Abaye as opposed to Rava.
So, in our case, where the owner didn’t know about it yet, but (in the trespasser’s mind) would most certainly have given permission, it doesn’t matter. We rule like Abaye. Indeed, this is the position of the Tosefos (B.M. 22a, “Mar Zutra”) as cited in the Sefer Mamon Yisrael. Even though the Shach (C.M. 358:1) writes that he disagrees with the Tosefos, the overwhelming conclusion of halachic authorities is to remain with the ruling of the Tosefos. This is the conclusion of the Ketzos HaChoshen (358:1 and 262:1) as well as the Kitzur Shulchan Aruch (182:13).
Ah, but how do we know that borrowing without permission also applies to being on someone’s land? Maybe in order to “borrow,” you have to physically take an object; here, you are just taking up space on someone’s land.
The Rashbam in Bava Basra 57b discusses a case of a piece of property owned by two partners. There, writes the Rashbam, we are lenient and assume that one allows the other to place his animals on the land even without explicitly giving permission. In such a case, he would not be considered a sho’el shelo mida’as since they, in general, are partners, and would let the other do what he wants with their property. According to Rashbam, therefore, when not dealing with two partners of a property, trespassing would be subsumed under the concept of sho’el shelo mida’as.
Because there is so much debate on the issue, however, it would be considered something that is not explicit in the Torah for purposes of tochachah. But let’s not excuse ourselves so quickly and think that people won’t listen to us.
What happens if someone does trespass or cut the line? If we are correct that the issue is trespassing, then he is considered a gazlan! According to the Shulchan Aruch (C.M. 34:7), therefore, he cannot be a witness at a Jewish wedding unless he does teshuvah and makes restitution where applicable. The conclusion from all this is that trespassing, and cutting the lines at the slopes, is serious business.
The author can be reached at email@example.com.