By Rabbi Tzvi Price
Parshas Emor includes a lengthy section (Vayikra 23:1-44) outlining the Shabbos and Yomim Tovim. Those are days when all monetary matters are put aside and doing business is strictly forbidden. One would think that this subject does not lend itself to a discussion of Choshen Mishpat, Jewish monetary law. However, as we shall see, even this subject gives us plenty of opportunity to do just that.
There is one kind of monetary transaction that does commonly occur on Jewish holidays. Many shuls (synagogues) have the custom on Shabbos and Yom Tov to auction off the honor to have an aliya (n. from Heb. to ascend). The highest bidder acquires the right to ascend the platform where the Torah is publicly read and pronounce a blessing over the reading. For many synagogues, auctioning aliyos (pl.) is a big money-maker. They sometimes sell for thousands of dollars. There may be many reasons why a person might be motivated to buy an aliyah, but generally speaking spending money for an aliyah is a demonstration of the honor and respect one has for the opportunity to recite a blessing over Hashem’s Torah. Buying an aliyah is in a very real sense putting your money where your mouth is.
Regardless of its possible benefits, the custom to sell aliyos on Shabbos and Yom Tov cannot be deemed appropriate unless it can withstand halachic scrutiny. What is the halachic rationale which allows this kind of purchase to take place at a time when all other buying and selling comes to a halt? Does it not fall under the prohibition to engage in business on the holidays? The answer to that question will afford us an opportunity to discuss some very important concepts in Choshen Mishpat.
Before delving into the details, some background information is in order. There are two distinct prohibitions regarding monetary transactions done on Shabbos and Yom Tov. Firstly, there is the primary prohibition against the conduct of all business activity. The source of this prohibition is somewhat unclear, either having the status of a full-fledged Torah law or a law given to us by the Prophets who understood that doing business is antithetical to the sanctity and serenity inherent in the day. However, under this prohibition one would still be allowed to effect a monetary transaction which does not contradict the spirit of the day such as giving presents, buying objects needed to perform a mitzvah such as an esrog on Sukkos, or giving charity. Therefore, this primary prohibition would not apply to the purchasing of aliyos because they are not bought and sold as part of any business, but rather for the purpose of charity and to demonstrate love and respect for the reading of the Torah.
However, there is a secondary prohibition, cited in Mesechta Beitzah 37a, that was enacted by the Sages. Included in this decree is the sale of any item on the holiday if the price was discussed at the time of the sale, even if the transaction is necessary in order to fulfill a mitzvah or for the needs of the holiday. Thus, one is not allowed to buy an esrog on Sukkos (although one is allowed to receive one as a present) or purchase food on Yom Tov if the price of the esrog or food was mentioned at the time. The Sages enacted this stringency out of a concern that if people were permitted to make these kinds of transactions on Shabbos and Yom Tov, they might become lax and proceed to do real business. Both the Maharshal in Beitzah 5:8 and the Vilna Gaon (cited in HaGaon HaChasid p. 88) make the point that under this rubric the buying and selling of aliyos on Shabbos and Yom Tov is a mistaken custom. However, the Mishna Berurah in siman 306, s.k.33, rules that although it is preferable not to sell aliyos on Shabbos and Yom Tov, the prevalent custom to sell them should not be the subject of protest because it is based on a legitimate halachic rationale.
That rationale is as follows. In Choshen Mishpat 212:1 the Mechaber states:
A person can only effect a transfer of ownership, whether by selling or by giving as a present, on something which is corporeal in nature, but not on something which is not a physical thing. Therefore, a person who sells to his friend the right to eat the fruit of a certain tree or the right to live in a certain residence has not sold him anything. Rather, he must sell him the physical tree limiting the sale to the eating of its fruit or the physical residence limiting the sale to the maintaining of residence…
In other words, a person cannot sell something that is not literally ‘a thing.’ It must be a physical object. In light of this important principle of Jewish monetary law, selling the right to an aliyah does not make halachic sense. Aliyos are not corporeal in nature, and therefore they cannot be bought or sold. What is really happening when the highest bidder wins an aliyah auction is that he is pledging the amount of money of his bid to charity if he actually goes up to the Torah and says the blessings. However, he has not really bought anything and no legal obligations or consequences arise from the sale.
If one hasn’t really bought anything when one ‘buys’ an aliyah, can it be said that the transaction violates the prohibition to buy and sell on Shabbos and Yom Tov? This argument forms the basis for the custom to sell aliyos. Selling aliyos is in fact not selling anything and therefore is permitted. However, the Maharshal and the Vilna Gaon certainly knew this halachic concept, and yet they were against the custom. What then is their argument against it?
The Maharshal in Yam Shel Shlomo, Bava Kama 8:60, invokes another important principle of Choshen Mishpat in his explanation of the aliyah auction’s halachic inner-workings. In Choshen Mishpat 201:1-2, the concept of situmta is explained. A situmta was a kind of mark placed on a barrel of wine by a customer indicating his irrevocable agreement to the purchase of the barrel. That was the prevalent custom in the wine industry back then, similar to the way saying “mazel and bracha” currently finalizes a sale in the New York diamond trade. While making a situmta should have no real halachic significance because it is not one of the methods of acquiring an object recognized by the Torah, in reality, it has a great deal of significance. In fact, a customer who makes a situmta actually becomes the halachic owner of the barrel!
The concept of situmta is probably the best example that can be brought to illustrate the importance that Jewish monetary law places on the prevailing understandings and customs of the marketplace. A situmta creates halachic ownership solely because that is how people think of it. The Torah understands that any marketplace transaction is fundamentally shaped by the underlying assumptions and operating principles of the people who are making the transaction. Therefore, if the custom is to consider a situmta to be legally binding, then it is as if the Torah says, “So be it.”
Applying this concept to the aliyah auction, the Maharshal explains that since the auction is conducted with the participants’ understanding that it is real sale, the Torah agrees to see it as such. The Torah accommodates itself to the prevailing custom and in some way legally recognizes the purchase of a right to an aliyah, something it would not normally do. The logical consequence of this ruling is the Maharshal’s other ruling that aliyah auctions are in violation of the prohibition to buy and sell on Shabbos and Yom Tov. After all, once we apply the concept of situmta, buying and selling is in fact what is happening.
At this point, it would be appropriate to embark on a discussion of the parameters and limitations of the situmta concept, and a more general discussion about the scope of influence that marketplace custom has in Choshen Mishpat. However, that would be a very long and difficult discussion indeed. It is a topic of great controversy among halachic authorities. The case of selling aliyos finds itself squarely in the middle of the storm. While the Maharshal (and presumably, the Vilna Gaon) apply situmta to buying aliyos, the Shach in Choshen Mishpat 382, end of s.k. 4, states that in his opinion the Maharshal’s argument “is not very compelling.” Presumably, the Shach would thus rule that the selling of aliyos on Shabbos and Yom Tov is a valid custom. Of course, if a shul would institute a policy that made the selling of aliyahs a non-binding transaction, then even the Maharshal would find no objection to their sale.
According to our discussion, we can arrive at an interesting ruling. What happens when a person buys an aliyah, but someone else inadvertently ascends to the Torah and says the blessings instead of him? Unfortunately, this kind of thing happens more often than you might think. Does the person who accidently ‘stole’ the aliyah have to pay for it? And if so, does he have to pay the shul, or does he pay the person who made the winning bid?
The answer is that since selling aliyos is a valid custom only because it is not a legal sale, as has been explained, the aliyah cannot be seen as having been stolen. In essence, nothing happened. Therefore, the person who took the aliyah does not have to pay the highest bidder who ‘owned’ the aliyah. It also follows that the highest bidder does not have to pay for the aliyah since he did not really buy it. Rather, he only pledged money to the shul on the condition that he receive the aliyah, which he did not. And the shul cannot claim damages from the person who took the aliyah because they had at most only the expectation of receiving money from the highest bidder. Nothing of theirs was taken or damaged.
It is important to note, however, that according to many authorities, if the person took the aliyah due to some sort of negligence on his part, then his act would not go unpunished in the Heavenly Court since he caused the shul to lose an almost certain financial gain. To avoid being found guilty in the eyes of Hashem, he would have to pay the aliyah’s sale price to the shul. This concept is termed chayiv b’yidai shamoyim, obligated by Heaven’s standards.
There are many more Choshen Mishpat issues that can be discussed that relate to Shabbos and Yom Tov, but we do not need more proof to convince us that Choshen Mishpat is happening everywhere and at all times. It even happens in shul and even on Shabbos! It’s there; we just have to look out for it.