Hilchos Mesiroh

Posted on 5 April, 2011 by

Some dangerous nonsense has been posted in comments, and it appears that at least one commenter imagines that mesiroh is some sort of peccadillo that can be winked at. This is not the case; mesiroh is a serious aveiro, one of the most serious a Jew can possibly commit. A mosser is worse than a chazer-fresser, worse than a thief, certainly worse than someone who keeps his neighbours up at night or evades taxes. It is practical halocho that a mosser may be killed, here and now in 21st century Australia, by anyone who is able to get away with it. Three times a day we proclaim ולמלשינים אל תהי תקוה.

A commenter claimed that mesiroh applies only if someone is put “in mortal danger”. Such dangerous am-horatzus must not be allowed to stand. It is clear in Gemoro, Rambam, Shulchon Oruch, and every single rishon that the class of mosser includes המוסר ממון חברו, one who hands over his fellow-yid’s money, not merely his life. Merely letting a robber know where someone has hidden his money makes one a mosser, with all that this implies. Anyone who teaches otherwise is מגלה פנים בתורה שלא כהלכה, and is guilty of זיוף התורה. Such a person is not a “posek”, and deserves no respect.

Mention was also made of a so-called category of “malchus shel chesed”. I must stress that halocho knows of no such category. It is a term that does not appear anywhere in any halochic source. It was invented by 20th century rabbis to flatter whatever regime they lived under, and belongs in droshos, not in serious halochic discussion. The Torah does not distinguish between the governments of Ancient Rome or Persia, the medieval princelings, the Czar, Kaiser, or Führer, and the modern liberal democracies of the West. דינא דמלכותא, to whatever extent it is indeed דינא, is so equally in all of them, and so does the issur of messiroh. As for the ערוך השלחן, he is not a reliable reporter on this subject, because he was writing for the censor. He applies this category of “modern enlightened civilised government to whom none of the ancient laws apply” to the brutal regime of the Czar! And he lays it on with a trowel, enough that any contemporary reader would realise what he was up to. If you have any doubts, look at his chapter title for hilchos gerus, which cannot be taken seriously by anybody, and which he can’t possibly have meant to be taken seriously.

There are a number of situations when halocho permits one to involve the authorities in a dispute with a fellow yid. When there is no doubt that one of these exceptions applies, one may act on them; when the application is not so clear, one must consult a rov, just as in any other area of halocho. If you would not dream of eating sofek treif without asking a shaylo, if you take it for granted that you must ask a shaylo in hilchos niddoh, if you ask the rov for a heter before eating on a fast day, then this area of halocho is no different.

So what are the exceptions?

  • One is when the purpose of the call is not to get the other yid in trouble, but to abate an immediate and intolerable nuisance or damage. If a loud farbrengen next door is keeping you up, and your attempts to ask them politely to quiet down haven’t worked, you may call the police to get them to quiet down. If someone ends up in trouble because of this, that’s unfortunate, but you don’t have to continue putting up with the ongoing nuisance just to protect the other yid. Warn him that if he doesn’t quiet down you will call the police, and if he ignores your warning then go ahead. However, once the nuisance has been abated, if there is something you can do to protect him from facing charges without damaging yourself, you must do so. 
  • Similarly, if you wake up at 4 in the morning to find people with power tools engaged in making “unauthorised improvements” to your house, you may call the police to stop them. Once they’ve been stopped the situation can be sorted out in beis din, but you’re not obligated to wait while they’re damaging your property.
  • Another exception: the victim of a physical assault is allowed to masser his assailant. If someone hit you, you can’t be expected to just take it and do nothing.
  • There is a related heter: one may apply to a civil court for injunctive relief. If someone is causing you damage and you just want him to stop, a beis din is of limited use. You should try getting a rov or beis din to order him to stop, but if that doesn’t work you may go to court for this purpose. This does not constitute a violation of לפניהם ולא לפני נכרים, because you are not litigating the case in the ערכאות but merely preserving the status quo so that a beis din can sort out the rights and wrongs.

There is more to say about the subject, but this will do for now.

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