Hilchos Choshen Mishpat

Volume II : Number 22

Exempting Yourself At The Expense Of Others

Question:

A unit in the Israeli army recently completed their practice maneuvers in an exemplary manner. Their commanding officer decided to reward them by granting them leave to visit their families for a week. However, he required two soldiers to remain behind to assist him in guarding and maintaining the military equipment. He selected Reuven and Shimon to remain behind.

Reuven would really like to see his family. Reuven believes that if he would try to convince his commander to allow him to go, he would receive permission, since he and his commander have an excellent relationship. However, his commander would then have to select Levi to stay in his place.

Reuven would like to know whether he may try to exempt himself from his duty, if this will cause Levi stay instead?

Answer:

A. It is permitted for a soldier to try to convince his commander to exempt him from a duty that he would normally be required to do with the others in his unit, such as patrol or guard duty, or military exercises. Similarly, he may request leave to go home for Shabbos or the Yomim Tovim. However, this is only as long as the commander has not yet decided exactly which soldiers should remain on base for guard duty or be involved in the exercise.
It is also permitted for another soldier, or the relative of a soldier, to attempt to convince the commander to exempt his comrade or relative from any duty, even though the petitioner is not a member of the unit.
This applies not only regarding military duties, but also regarding duties assigned by an employer in a work place, a teacher is school, or any other similar situation in our daily lives. It also is relevant regarding financial issues, as described below in the "Sources" section.
B. A soldier who has already been selected and designated for a certain duty may not attempt to convince his commander to exempt him, if this will result in another soldier losing privileges that have already been designated for him. Even is the soldier did not yet know that he had been the one designated for this duty, but was aware that the designation had been already made by the commander, it would not be permitted for the soldier to petition the commander for exemption in this situation. (1)
If it is common and accepted practice in this unit that even after such decisions have been made, the soldiers may protest the decision and make the commander aware of factors that may cause him to reverse the decision and exempt them, any soldier may do so, even if the reversal will be at his fellow soldier's expense. In this case it can be argued that the decision was not yet final, and was conditional on no one lodging a valid protest to the decision.
C. A soldier who has been chosen for a dangerous, life threatening, military operation, may request exemption from his commander, even though he knows that another soldier will have to be chosen in his place.
However, another person (even a relative) may not request exemption for him, if another soldier will have to be chosen. This is forbidden even if it is not yet known which soldier(s) have been chosen for this operation, as stated above. (2)

Sources:

(1) The Halachos stated in Answer A and B are based on a Teshuvas Mahariba"l quoted in the Shach in Choshen Mishpat (163:18). This is based on the actions of Dovid HaMelech (King David) that are told in Melachim II 21:7 and explained in the Gemara Yevamos 79a.

There had been a famine during the reign of Dovid HaMelech, and he inquired from the Urim V'Tumim (the breastplate of the Kohen Gadol) as to the cause. Hashem answered that it was because of the injustice perpetrated on the Givonim by Shaul HaMelech, his predecessor. Dovid asked the Givonim what he could do to appease them, and they requested that seven of Shaul's offspring be delivered to them to be killed and hung publicly. After consulting the Urim V"Tumim, Dovid was ordered to do so. Which offspring would be delivered was to be determined by them walking past the Aron, which would indicate which ones were to die. When Mifivoshes the son of Yehonason was about to pass the Aron, Dovid HaMelech was filled with mercy for him, because of the loving bond that he had with his father, and beseeched Hashem that he be spared, even though this would have caused another of the offspring to die who otherwise would not have had to.

We see from here that a person may petition that someone be spared from being chosen for death or any duty even though this will be at the expense of others. However, it is clear from the Gemara there that had Mifivoshes already been selected to be delivered to the Givonim, Dovid would not have been permitted to pray that he be spared. Therefore the same would apply in our case. If the soldier was already selected for duty, he would not be permitted to petition for release from this duty if it would be at the expense of others.

The Rema (Choshen Mishpat 388:2) states that the same would apply in financial dealings. For example, if a foundation has decided to award an organization with a grant, another organization would not be permitted to request the same grant at the expense of the first organization. However, if the decision has not yet been made by the foundation, anyone could come and request that they be granted the gift. This is discussed there in the SM"A, (10) and in the Teshuvos Nodeh BiYehuda (Yoreh De'ah Vol. 2 Siman 74) and in the Teshuvas Chassam Sofer (Vol. 6 Siman 29).

(2) The reason for Answer C is because we have an established rule that "Chayecha Kodmim - Your own life takes precedence over other's lives" (Bava Metzia 62a). Although we do have another rule of "Yehoreg V'Al Yaavor - You should allow yourself be killed and not transgress" (regarding murder), which seems to conflict with "Chayecha Kodmim," we only say "Yehoreg V'Al Yaavor" when you must actively kill another to save your own life. However, to passively save your life in a manner that would cause someone else's life to be endangered is clearly permitted. This is discussed in the Teshuvos Chavos Ya'ir (Siman 213).

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This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His Column originally appears in Hebrew in Toda'ah, a weekly publication in Jerusalem. It has been translated and reprinted here with his permission and approval.

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Please Note: The purpose of this column is to make people aware of Choshen Mishpat situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the presence of all parties involved!