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On One Aspect of Law and Morals in Jewish Law: Lifnim Mishurat Hadin

Published online by Cambridge University Press:  12 February 2016

Shmuel Shilo
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In Talmudic literature the term lifnim mishurat hadin (i.e., beyond the line of the law) is mentioned a number of times. Before analyzing the various Talmudic passages where this concept is found, we will ask a number of questions, some of which we will answer in this article. Not all of the answers will be unequivocal and some questions will remain, in the end, provocative and open. Hopefully, the paper will encourage further discussion of the concept lifnim mishurat hadin.

Is lifnim mishurat hadin a specific norm of behaviour which can be precisely defined, or is it rather a concept referring to recommended ethical behaviour, similar to general moral values and examples of ethical behaviour which abound in the Talmud but which have no clearly definable characteristics? If we conclude that lifnim mishurat hadin is indeed a precisely defined norm of behaviour does it stand on its own as a specific type of moral behaviour, or is it synonymous with certain other moral norms, dinei shamayim (the Laws of Heaven), midat hassidut (the degree of ethical perfection of men of piety and virtue) or one of the other ethical norms found in the Talmudic sources? If lifnim mishurat hadin is not just another term for some other moral norm, what is the difference between them? (A reasoned answer to this question cannot be given without a full discussion of all the other moral norms in the Talmud; therefore in this article we will only suggest approaches to answering this question). Are there differences of degree within the norm of lifnim mishurat hadin itself? Are there types of behaviour recorded in the Talmud, about which the phrase lifnim mishurat hadin is not used, but which are in fact examples of behaviour lifnim mishurat hadin? If so, is there a reason why such actions were not explicitly described as lifnim mishurat hadin?

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Israel Law Review , Volume 13 , Issue 3 , July 1978 , pp. 359 - 390
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1978

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References

1 Mekhilta, Yitro, Massekhta D'Amalek, Parsha II; Mekhilta of R. Simon b. Yohai, Exodus 18:20; Ber. 7a; ibid., 45 b; Ket. 97a; B.K. 99b–100a; B.M. 24b; ibid., 30b; A. Zar 4b; Deut. Rabbah, Re'eh 4:3.

2 “Beyond” — e.g., Herzog, I., The Main Institutions of Jewish Law (2nd ed., London, 1965) vol. 1, p. 385Google Scholar; Lichtenstein, A., “Does Jewish Tradition Recognize an Ethic Independent of Halakha” in Fox, M., ed., Modern Jewish Ethics (Ohio, 1975) 62 at 69Google Scholar; “Within” — e.g., Cohen, B., Jewish and Roman Law — A Comparative Study (New York, 1966) vol. 1 p. 52Google Scholar; Berman, S., “Lifnim Mishurat Hadin” (1975) 26 Journal of Jewish Studies 86CrossRefGoogle Scholar; (1977) 28 ibid., 181. In the Soncino translation of the Talmud, sometimes lifnim is translated “beyond” and sometimes “within”.

3 Ber. 7a: “The Holy One, blessed be He, says prayers. What does He pray? — R. Zutra b. Tobi said in the name of Rab: May it be My will that My mercy may suppress My anger, and that My mercy may prevail over My [other] attributes, so that I may deal wtih My children in the attribute of mercy and, on their behalf, lifnim mishurat hadin. It was taught: R. Ishmael b. Elisha says: I once entered into the innermost part (of the Sanctuary) to offer incense and saw Akathriel Jah, the Lord of Hosts, seated upon a high and exalted throne. He said to me: Ishmael, My son, bless Me, I replied: May it be Thy will that Thy mercy may suppress Thy anger and Thy mercy may prevail over Thy other attributes, so that Thou mayest deal with Thy children according to the attribute of mercy and mayest, on their behalf, act lifnim mishurat hadin. And He nodded to me with His head”.

4 A. Zar. 4b: “[While occupied with] the Torah, which Scripture designates as ‘truth’; as it is written buy the truth and sell it not, (Proverbs 23:23) The Holy One, blessed be He, will not act lijnim mishurat hadin (but when sitting in) judgment, which is not designed by Scripture as ‘truth’, the Holy One, blessed be He, will act lijnim mishurat hadin”.

5 Deut. Rabbah, Re'eh 4:3. See Federbush, S., Ha'Mussar Ve'Hamishpat Beyisrael (New York, 1944) 44–45.Google Scholar

6 B.M. 30b.

7 Exodus 18:20. A similar but somewhat different exegesis was already made in Tannaitic times. See text infra at n. 99.

8 This is the Soncino translation, according to the reading “dineihem”. But see Dikdukei Soferim. The correct reading should more probably be “divreihem” which then should be translated differently.

9 B.K. 99b–100a.

10 B.M. 24b.

11 This Soncino translation of “shuka” as street and not marketplace is probably correct. See Ber, M., Amoraei Bavel (Ramat Gan, 1975) 223–224.Google Scholar

12 The Talmud continues: “Raba once followed R. Nahman into a street of skinners — some say into a street of scholars — and asked him: “What if one found here a purse? — (R. Nahman) answered: It would belong to the finder. What if an Israelite came and indicated its identification mark? (R. Nahman) answered: It would (still) belong to the finder. But that one keeps protesting! It is as if one protested against his house collapsing or against his ship sinking in the sea”. It seems that R. Nahman disagrees with Mar Samuel's view concerning the duty to return the lost article lifnim mishurat hadin. For a short discussion of the phrase “a street of skinners, some say a street of scholars” see Rubinstein, M., “Ha'Melakhtiut Ba'Talmud” in Mehkarim U'Mevo'ot La'Talmudim (Jerusalem, 1971) 56.Google Scholar

13 Ket. 97a.

14 Ber. 45b.

15 Cf. Tosafot, B.K. 100a s.v. lifnim, Tosafot B.M. 24b s.v. lifnim with Berman, ibid. Our interpretation is similar to that of the Tosafists and Berman, but is different in some respects and broader in certain explanations.

16 See text at nn. 6 and 9.

17 B.M. 30b.

18 Hananel, R. to B.M. 24b.Google Scholar

19 Ritba, to B.M. 24b.Google Scholar

20 Jonathan, R. of Lunel, , brought in Shita Mekubetzet to B.K. 115a s.v. matnei.Google Scholar

21 Piskei Ha'Rosh B.M. chap. 2 sec. 7.

22 See text infra at nn. 55–63.

23 Be'er Eliahu, Hoshen Mishpat sec. 12, 2 notes 8–9.

24 Beit Yosef to Tur Hoshen Mishpat sec. 12, 8 (newer notes).

25 Brought in Mordekhai, B.M. sec. 327, In the Sefer Ravan II, 198 the question of lifnim mishurat hadin is discussed, but Ravan does not specifically state that one can be coerced to act lifnim mishurat hadin. See too, Hagahot Maimoniot M.T. Gezela 11:3, Agudah, B.M. sec. 34.

26 Mordekhai, ibid.Hagahot Maimoniot, ibid.

27 Hagahot Maimoniot, ibid.

28 Mordekhai, ibid.

29 Hagahot Maimoniot, ibid.

30 Agudah, ibid.

31 But, see Newman, R.A. (ed.), Equity in the World's Legal Systems (Brussels, 1973) 404, 468–470, 604.Google Scholar

32 Exodus 23:3.

33 Lev. 19:15.

34 In this article we use the accepted classification of a legal right, as one which can be enforced in law. We are aware, however, that for Jewish law the usual classification of a legal right or duty as against a solely moral right or duty, as based on enforceability, is not valid. In Jewish law there are duties which one must comply with according to the law, even though there is no human sanction for non-compliance. These duties at times also give rise to rights against those who are commanded to fulfill the duties. As Silberg has pointed out (Talmudic Law and the Modern State (New York, 1973), English translation of Kakh Darko shel Talmud (Principia Talmudica) (Jerusalem, 1961) 68–69), the thrust of halakhic norms is in one's duties, not in one's rights. Moreover, for practical purposes, we shall continue to refer to enforceability and non-enforce-ability as legal and moral, respectively.

35 Bayit Hadash to Tur Hoshen Mishpat sec. 12, 4.

36 Text beginning at n. 76.

37 See Lichtenstein, A., “Kofin al Midat Sodom (Sdom)” Hagut Ivrit Be'America, vol. 1, p. 368.Google Scholar

38 Text at nn. 77–82.

39 Resp. Zemah Zedek No. 89. See Arukh Ha'shulkhan Hoshen Mishpat 12, 2 who, similar to Krochma's statement, decides that at least some type of non-physical coercion is allowed according to the view of all scholars — even those who make general statements negating coercion.

40 Sh.Ar. Hoshen Mishpat sec. 12, 2. See too Resp. Shev Yaacov, Even Haezer No. 29 who disagrees with Sirkes and agrees with the first view brought by Isserles in his gloss.

41 For a further analysis of the question about rich-poor in the context of lifnim mishurat hadin, and other contexts, see Shilo, S., Dina D e'Maikhuta Dina (The Law of the State is Law) (Jerusalem, 1974) 177–183.Google Scholar

42 Lev. 19:16.

43 Ibid. 19:18.

44 Ibid. 19:14.

45 Ibid. 19:32.

46 B.M. 108.

47 Ta'anit 16a.

48 Yoma 86a.

49 Nahmanides, Commentary to the Torah, Deut. 6:18. See appendix infra p. 388.

50 Ibid., Lev. 19:2. Here Nahmanides explains that the command “Ye shall be holy” comes to bar conduct which is technically within the permissive ground of the law, but can be abused and one who so acts is referred to in the Talmud as “a scoundrel with Torah licence”. Nahmanides goes on to state: “And this is the Torah's mode to detail and (then) to generalize in a similar vein. For after the admonition about the details of civil law and all impersonal dealings … it says generally “And thou shalt do the right and the good”, as it includes under this positive command justice and accomodation and all lifnim mishurat hadin in order to oblige one's fellow”.

51 “Our perfect Torah sets forth general principles for the cultivation of human virtue and for (ethical) behaviour in the world, in the statement: ‘Holy shall you be…’ This means, as the Rabbis said, ‘Sanctify yourself in what is permitted’ — that one should not be drawn after lusts. Similarly the Torah says: ‘You shall do that which is right and good’ meaning that one should deal well and uprightly with men. It was not appropriate in all this to command details, for the commandments of the Torah are obligatory for every period and all time and in every circumstance, but the virtues of man and his conduct vary according to the time and the people. The Sages of blessed memory specified some useful particulars under these principles, some of which they made binding law and others only rules recommended before the fact, but not binding or actionable after the fact, still other rules for those who seek the way of special piety”. Maggid Mishneh, Hilkhot Shekhenim, 14:5. See also appendix infra p. 388.

52 B.M. 30b. See above, text at nn. 6–8.

53 See text at nn. 6–8, 17.

54 Semak, 49.

55 M.T. De'ot 1:5. Cf., ibid.Yesodei Ha'torah 5:11. Here Maimonides uses the phrase lifnim mishurat hadin in connection with the actions of the hakham — which seems to contradict his statement in Hilkhot De'ot. However, it seems, that in Hilkhot Yesodei Ha'Torah Maimonides' use of the term refers only to those qualities such as general comportment and not to the more specific use of the maxim.

56 Deut. 28:9.

57 M.T. Gezelah ve'Avedah 11:7.

58 Ibid. 11:17.

59 M.T. Roseah u'shemirat Ha'Nefesh, 13:4. Maimonides consistently refers to the phrase of doing the good and the right, a phrase which reminds one of the verse in Deut. 6:18. “Thou shalt do what is right and good in the eyes of the Lord”. We have seen that Nahmanides in his commentary to the Torah on this verse brings the maxim of lifnim mishurat hadin as something to be deduced from this verse, and although this verse serves as the basis for another similar but different concept in the Talmud (See B.M. 15b, ibid. 35a; ibid. 108a) perhaps there is a lost exegesis of this verse which states that lifnim mishurat hadin stems from this verse. So it seems too from the phraseology in the commentary of Rashi to Deut. 6:18 and in Sefer Hassidim (Wistinetzki) No. 1899.

60 See text infra at nn. 55–63.

61 Piskei Ha'Rosh B.M. chap. 2, sec. 21.

62 M.T., Rozeah u'Shemirat Ha'Nefesh, ibid.

63 There is another difference between the original story and Maimonides' wording. The Talmud relates that R. Ishmael helped the man unload the bundle from himself. Maimonides is speaking — in the context of the 13th chapter of Hilkhot Rozeah u'Shemirat Ha'Nefesh — of the Biblical unloading a burden from an animal. Perhaps Maimonides holds that the law of loading and unloading refers only to animals and not to man who should know better than to overburden himself. And see Ozar Mefarshe Ha'Talmud B.M. 381, s.v. R. Ishmael.

64 See n. 120.

65 It would seem obvious that even though acting lifnim mishurat hadin is not incumbent upon everyone according to the elitist theory, he who wants to act lifnim mishurat hadin may certainly do so and should even be commended for it. This is the view of several halakhists and scholars (e.g. Urbach, E.E., The Sages, Their Concepts and Beliefs (trans, from Hebrew, , Jerusalem, 1975) 333.Google Scholar However, Albeck, S., according to his general overall conception of Jewish civil law in Talmudic times, disagrees. According to Albeck (Dinei Ha'Mamonot ba'Talmud, (Tel Aviv, 1976) 230–231)Google Scholar the hassid and he who acts lifnim mishurat hadin follow standards of conduct different from the ordinary individual's standard. Such an individual consciously does not want to act like the ordinary man. He acts as he does because he is someone of greater stature than the majority of people and he measures himself according to this higher standard. The ordinary halakhic demands are based on the expectations of the ordinary individual's behaviour. Equality means, then, that the greater the man the greater is the expectation of a higher degree of conduct on his part. As the expectation level is raised, so is the demand from him. The higher standard demanded of him is similar to the lower standard expected from and demanded of the ordinary individual. Up to this point S. Albeck's view is both logical, incisive and in accordance with one of the main streams of halakhic thought, and similar to the view presently to be discussed in the text. Albeck goes even further, and it is here, we submit, that his stand is wrong. Albeck adds that the ordinary man should not act like the greater individual, and in his own words: “An ordinary individual is not permitted to act according to the standard of a great man or to do an act of greatness, for, by so doing, he causes damage to the strict law”. Albeck goes on to explain that a certain type of behaviour is expected from a certain type of individual, and if his behaviour is in fact different from what is expected of him — be it more noble or less noble — he who so acts is deceiving society and his conduct is therefore wrongful. With all due respect to Albeck, it seems to us that pure logic has led him astray and Urbach's statement that in interpersonal relationships it is commendable for all to act lifnim mishurat hadin is the correct enunciation of the position of the halakha. Albeck's view reminds one of Ihering who wrote — albeit on a different question — that he who waives a legal right is acting immorally, for he who stands on his legal rights is, at the same time, defending the Rule of Law in general. See Ihering, , Der Kampf urn's Recht, (Vienna, 1889).Google Scholar

66 Bina Le'Itim, No. 12.

67 See text infra beginning at n. 76.

68 Proverbs 2:20.

69 Azei Broshim, Hilkhot Nedarim, sec. 53.

Be it as it may, whether lifnim mishurat hadin is a legal or a moral imperative, and whether it is referring to an ordinary individual or to a special one, it is quite clear that R. Ishmael b. Jose in the unloading case, felt that it was his duty — probably legal duty — to help with the unloading. The person carrying the bundle, who attempted to get more and more money from R. Ishmael, was certainly acting in a manner which would cause any normal individual to stop paying him — unless the individual was of the opinion that he had an halakhic duty to help with the unloading no matter what the circumstances were. So, it seems, R. Ishmael felt halakhically obliged to act, time and time again, lifnim mishurat hadin.

70 Text at nn. 15–17.

71 Rashi, B.M. 83a s.v.Google Scholarb'derekh; B.K. 108a s.v. tavuhu be'alim; ibid., 108b, s.v. at avdat; cf. Rashi, , R.H. 17b s.v.Google Scholarhassid. Here Rashi is explaining the verse “The Lord is righteous in all His ways and gracious (= hassid) in all His works” (Psalms 145:17 )and the Talmud's comment that “at first righteous and at the end gracious”. Rashi comments on the word hassid — lifnim min hashura, i.e. within (or beyond) the line (of the law). Perhaps Rashi decided to use a phrase almost identical with lifnim mishurat hadin, i.e. lifnim min hashura to explain the Talmud's exegesis of this verse, because of the use of the word ma'aseh (= works) both here — hasid bekhol ma'asav — “gracious in all his works” and the verse which teaches us lifnim mishurat hadin — ha'ma'ase asher ya'asun — and the works that they shall do; Tosafot, , Ketuvot 89a s.v.Google Scholarshema mina; R. David Kimhi (Radak) to Psalms 4:4.

72 Rashi, B.M. 33a s.v.Google Scholarkol; Sh. Ar. Hoshen Mishpat, 264:1, based verbatim on Rashi (an unusual phenomenon). Perhaps the most developed discussion and equation of the maxim lifnim mishurat hadin with the idea of gemilut hessed is found in the writing of Maharal of Prague. To him hessed — lovingkindness, and lifnim mishurat hadin are one. The exegesis on the verse “And thou shalt show them the way they must walk therein and the work that they shall do:” refers to different aspects of hessed or gemilut hessed — including the last exegesis wherein lifnim mishurat hadin is adduced. R. Yohanan's statement that Jerusalem was destroyed only because the people stood adament in their rights according to the strict law is explained in the following manner: Just as the people desired midat hadin — strict law, so God judged them according to midat hadin and not according to midat harahamim — the degree of compassion. If they would have acted according to lifnim mishurat hadin, so would God have acted toward them according to hessed, as it is written olam hessed yibaneh — “the world shall be built up by Mercy” (Psalms 89:2). Just as the world is built on mercy so also the opposite is true, — it will be destroyed, as was Jerusalem, when there is no hessed i.e., no lifnim mishurat hadin (Netivot Olam, Netiv Gemilut Hassadim, chap. 5).

73 Responsa of Maharil (Hahadashot) No. 137.

74 Urbach, ibid., 332.

75 Silberg, ibid., 94–95, 115.

76 Rashi, , B.M. 83a s.v.Google Scholarb'derekh.

77 Other readings are Rabbah b. R. Huna, Rabbah B. Hanna, Rabbah b. Hannan. If the reading of the next name brought in this passage, Rav, is correct, then it would be difficult to accept the printed editions' Rabbah b. Bar-Hannan since Rav flourished during the first generation of Babylonian Amoraim, and Rabbah b. Bar-Hannan flourished during the third generation. Therefore, it is most likely, as Ch. Albeck conjectures (see Albeck, , Mavo La'Talmudim (Tel Aviv, 1969)Google Scholar that the correct reading should be Rabbah b. Hanna, Rav's contemporary and kin. Albeck shows that interpolations between Rabbah b. Bar Hannan and Rabbah b. Hanna are common. However, if the correct reading in the continuation of the passage is Raba, as is found in some texts, then Rabbah bar Hannan seems more appropriate. Silberg (ibid., 121) prefers the reading Rabbah bar Rav Huna. He explains that we are witnessing a special rabbi-disciple relationship. Rav Huna was Rav's disciple and Rav Huna's son, Rabbah also studied under Rav. From this Silberg asserts that Rav is not giving a legal decision but is only explaining to his disciple how one should ethically behave in such a situation. The passage, according to Silberg, is describing a unique situation of a rabbi-disciple relationship.

78 See preceding note.

79 Most readings omit this reply “yes”—of Rav's and only bring the quote from Proverbs as Rav's reply.

80 Proverbs 2:20.

81 B.M. 83a.

82 Yer. B.M. chap. 6, 6 (27a–b).

83 E.g., Silberg, ibid., 119–120.

84 Some scholars argue that something is missing in the text of the Palestinian Talmud, since the phrase used — tania — (“Tania R. Nehemia” (= R. Nehemia taught) is usual when introducing something Tannaitic and not Amoraic, as is the case here. But Ch. Albeck has already shown that the phrase tania can also be found prefacing an Amoraic source (See Ch. Albeck, “Le'Ofyan shel Ha'Halakhot b's eder Nezikin”, in Torah She-B'al Peh, vol. 4, pp. 24–25, n. 20).Google Scholar

85 See n. 77.

86 Silberg, ibid.

87 Rashi, , B.M. 83a s.v.Google Scholarshkulei; Tur Hoshen Mishpat, 304.

88 Rashi, ibid., second explanation; Shita Mekubetzet B.M. 83a; Meiri, , B.M. 83aGoogle Scholar; Shitat Hakadmonim, Talmid Ha'Rashba B.M. 83a; Hidushei Haramban B.M. 83a; Maharsha, Hidushei Aggadot, B.M. 83a; Or Zarua B.M. 278. Cf. Ch. Albeck, ibid., who has a novel explanation of this passage, but upon closer scrutiny, it is not free from flaws.

89 See Silberg, ibid., 118–123; Urbach, ibid., 330–331; Kook, S.H., Iyunim u'Mehkarim, vol. 1, pp. 188–89.Google Scholar

90 Hiddushei Aggadot, Maharsha, B.M. 83a.

91 Resp. Heshiv Moshe Yoreh Deah No. 48, who disagrees with this interpretation.

92 Ch. Albeck, ibid. But compare Maharsha, Hiddushei Halakhot B.M. 83a who explains the passage in a similar, but slightly different manner.

93 See, Warhaftig, S., Dinei Avodah Ba'Mishpat Haivri (Tel Aviv, 1969) 2–10.Google Scholar

94 B.B. 88b; Hullin 134a.

95 Shevuot 45a.

96 Silberg, ibid., 122.

97 This rule is really not a hard and fast rule, and we find many exceptions to it. It seems that the statement that “divrei Torah midiméi Kabbalah lo yalfinan” i.e., the rule just mentioned, was not accepted by all the Talmudic Sages. See, Urbach, E.E., “Halakha U'Nevuah” (1958) 18 Tarbiz 1–22, at 12.Google Scholar

98 See text at nn. 7 and 9.

99 Mekhilta, ibid. Translation by Lauterbach, in Jewish Publication Society edition, vol. 2, p. 182. Cf., Mekhilta of R. Simon b. Yohai, Exodus 18:20.

100 Urbach, ibid. See too, Muriel, Y., “Hayashar ve'Hatov” (1972) 70 Sinai 92, at 97–99.Google Scholar

101 Rashi, , B.M. 83a, s.v.Google Scholarb'derekh.

102 Tur Hoshen Mishpat sec. 304.

103 Bayit Hadash, to Tur, ibid.

104 Responsa, Zemah Zedek, No. 89.

105 Responsa, Heshiv Moshe, Yoreh Deah, No. 48.

106 Meltzer, Z.Y., “Lifnim Mishurat Hadin” in Mizkeret (Jerusalem, 1962) 310–315.Google Scholar

107 Ibid.

108 Tosafot, B.M. 24b s.v. lifnim; S.H. Kook, ibid. The Tosafists graded lifnim mishurat hadin into three different levels. 1. Those cases where the verse whence lifnim mishurat hadin is adduced is brought, are the examples par excellence of the maxim. These are the cases where others are duty-bound, a privileged individual is exempt, and lifnim mishurat hadin requires the exempt person to waive his right. These are, for example, the cases of R. Hiyya — the moneychanger case — and R. Ishmael b. Jose, the unloading case. 2. Cases of lifnim mishurat hadin where the verse is not brought in the Talmud. These are cases where, under the circumstances no one is duty-bound to so act, but an individual is requested to act lifnim mishurat hadin. An example of this type is the lost property case. 3. As opposed to cases 1 and 2, the third case is not an example of lifnim mishurat hadin. This last case is where someone caused a great loss to another, and nevertheless Jewish law advises the one damaged to waive his right. An example of such a case is the porters breaking the wine barrels; such a situation is not considered one where lifnim mishurat hadin applies. That is why Rav brought the verse from Proverbs. See too, Meltzer, op. cit., at 312–314 who discusses this Tosafot.

109 Shitat Hakadmonim, Talmid Ha'Rashba, ibid.

110 Me'iri, ibid.; Ha'Rashba, Hiddushei, B.M. 83aGoogle Scholar; S.H. Kook, ibid.; Be'er Eliahu, Hoshen Mishpat, sec. 12, 2, n. 9.

111 See above and Y. Muriel, ibid.

112 See above text at nn. 18–41, and especially Resp. Zemah Zedek, ibid.

113 Tur Hoshen Mishpat 304, 1.

114 Bayit Hadash, to Tur, ibid.

115 Perisha to Tur, ibid.

116 Silberg (ibid. 122) puts much emphasis on the fact that the labourers were destitute and were it not for this fact Rav would not have ordered Rava bar Rav Huna to pay them their wages. One can answer these types of arguments by quoting the text of the Palestinian Talmud, where no mention is made of the worker being poor and hungry, proving that the workers' financial situation plays no role in deciding such a question. However, one can rebut by arguing that it was a known fact that such workers were poor; for Silberg, the question from the Palestinian Talmud is not valid since he is of the opinion that the Babylonian story is a more authentic and fuller version of the same tale. See above text at n. 86.

117 S. Federbush, ibid., 81; S.H. Kook, ibid.

118 See above, text at nn. 66–69.

119 Z. Y. Meltzer, ibid., 312.

120 See text at nn. 41–69. From the texts we have discussed in this article, and from some other texts which we shall presently bring, we become aware of the fact that certain Sages were especially prone to act beyond the demands of the law. One may even be inclined to submit this as evidence supporting the view that lifnim mishurat hadin is addressed to the élite and not to the common man. For example, we have seen that R. Papa's conduct was twice referred to as lifnim mishrat hadin (see supra text at nn. 13–14). R. Hiyya acted lifnim mishurat hadin in the moneychanger case, and also in another situation it is reported that he paid labourers, even though he did not have to do so according to strict law, and he made a point of this fact by stating that according to strict law he owes nothing to the workers, but since he is R. Hiyya, he will pay them nevertheless (Jer. Talmud, B.M. 6, 1(25a).Google Scholar It is perhaps Rav who is most frequently associated with conduct beyond the dictates of the strict law. It is Rav who makes the statement concerning the return of a lost article that even though according to the law precedence is given to efforts made in order to return one's own lost article before returning another's lost article, he who constantly acts so will in the end become destitute and fall upon the mercy of others (B.M. 33a and Rashi, ibid.). It is Rav who gave the zuz to the woman in the moneychanger case at the request of his uncle R. Hiyya, and it is Rav who tells R. Hiyya to pay the above-mentioned labourers even though R. Hiyya was not duty-bound to do so under the circumstances. If the correct reading of the text in Yoma 87b is Rav (See Dikdukei Soferim) then we probably have a further example of Rav's acting beyond the line of the law, e.g., Rav's asking forgiveness for a slight he caused to another, more than the limit of three times prescribed by law. (See Rashi, Yoma, ibid., s.v. Rav. Even if the text is “Rav” and not “rabbo”, not all the commentators agree with Rashi's explanation that Rav acted beyond the strict law, but they, too, explain that R. Hanina was Rav's teacher and concerning one's teacher the law is more stringent as to the process of asking for his pardon). It was Rav, according to most readings of the text, who told the employer in the porter case to act beyond the strict law and to return their garments and pay their wages. Again it is Rav who, according to the Palestinian Talmud, acted stringently with himself in that although he decided for others that a certain promise to give a gift was not legally binding, he felt himself bound to give such a gift and commanded members of his own household to make good such a promise, acting in accordance with midat hassidut (Yer. Shevi'it end of chap. 10).

121 Brought in Cohen, S.Y., “Lifnim Mishurat Hadin” in The Adam Noah Braun Memorial Volume (Jerusalem, 1969) 166.Google Scholar

122 Lev. 19:15.

123 Ch. Albeck, ibid., 23–25. But here, we submit, one must be careful about his conclusions. Both Albeck and S.Y. Cohen (ibid., 176–177) automatically equate the barrels of wine case with lifnim mishurat hadin. Rabbi Cohen goes so far as to state that R. Sa'adia Gaon is discussing lifnim mishurat hadin — although R. Sa'adia is only explaining the passage under discussion which does not mention lifnim mishurat hadin. One cannot prove from R. Sa'adia Gaon's explanation whether that is his stand concerning lifnim mishurat hadin in general.

124 Z.Y.Meltzer, ibid., 312.

125 Perhaps an argument in favour of R. Sa'adia Gaon's view can be deduced from what is related in the Talmud about R. Yohanan. As the reader will recall, it was R. Yohanan who related that Jerusalem was destroyed because lifnim mishurat hadin was not followed. (As mentioned above, it is not clear whether R. Yohanan is referring to court judgments or to people's individual action). It seems, though, that when a case came before him, he decided according to the strict law even though in similar circumstances R. Hiyya, in the moneychanger case, acted lifnim mishurat hadin. A shohet caused an animal to be terefa and R. Yohanan was asked if the shohet is liable for damages. He answered that if the shohet was an expert (and did not receive remuneration for his shehita), he is not liable. One may perhaps, deduce from here that since R. Yohanan did not decide that the expert shohet should be liable, as R. Hiyya the exceptionally expert moneychanger decided concerning himself, a judge should not compel a side to the proceedings to act lifnim mishurat hadin. Cf. Biur Ha'Gra, Hoshen Mishpat Sec. 12, 2 and Biur Eliahu, ibid.

126 Shilo, S., “Debtor's Property Exempt from Execution in Jewish Law” (1970) 2 Mishpatim 67–82.Google Scholar

127 Another possible explanation in this same context of the debtor's rights against execution, may be the following: Even when the law was accepted that certain property of the debtor was exempt from execution — including his clothing — it applied only to debts arising from a loan but not to debts from another cause e.g. a tort, which in fact is the view of one halakhic school of thought. (See Sefer Ha'Trumot, Gate 1, part 2, see. 3; Tur Hoshen Mishpat sec. 97, 24; cf. Tur, ibid., 97, 25, where a dissenting view of R. Meir Halevi Abulafia is brought. See too, Levush Ir Shushan, 97, 29; Sh.Ar. Hoshen Mishpat, sec. 97, 29, and Biur Ha'Gra, ibid., sub-sec. 101; Arukh Ha's hulhan, Hoshen Mishpat 97, 35; Avnei Nezer, Hoshen Mishpat, 39). If so, then perhaps, Rabbah b. Bar Hannan took the garments according to his strictly legal rights since the debt to him was one based on a tort. Rav, when asked about this case, agreed that this is the strict law, but told the creditor to return the clothing to them on the basis of the above-mentioned ethical imperative.

128 Baba Batra 8b; and, see Rashi, ibid., s.v. u'pakadeti.

129 Moulton, J.F., “Law and Manners” (July, 1924) The Atlantic Monthly 1–5.Google Scholar

130 See supra nn. 49–51 and accompanying text.

131 Blackstone's Commentaries, Book I, sec. 2.