Hilchos Choshen Mishpat
Volume II : Number 22
Exempting Yourself At The Expense Of Others
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
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
Reuven would like to know whether he may try to exempt himself from his
duty, if this will cause Levi stay instead?
- 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)
(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
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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!
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