A Shas Full of History: The Tenth Commandment & High Pressure Sales
The following incredible family tale about my great-grandfather, Rabbi Dr. Joseph Saffra zt"l and Hashem’s Providence was documented by my uncle, David Seidemann Esq of Lawrence, NY.
I have included excerpts from his article relevant to the Halachic discussion herein.
From the other side of the bench
By David Seidemann
One half hour earlier and the SS soldiers would have snatched him. But 30 minutes before the soldiers stormed through the back door, Rabbi Dr. Joseph Saffra z”tl ran out the front door. Some say he saw the angry crowds gathering on that November 9, 1938 night in Frankfurt, Germany. Others say that Rabbi Saffra received inside information from a local police chief upon whom he had performed dentistry work. For Rabbi Dr. Joseph Saffra was not just a rabbi, he was also an oral surgeon. They turned the entire house upside down that night, screaming “Where’s the rabbi, where’s the rabbi?” They returned every few days ransacking the home as those that remained trembled in fear. “Where’s the rabbi?” they demanded each time.
He fled that night, Kristallnacht, to Holland by train and then to America by boat. It wasn’t until a year later that he was able to send for his wife, three daughters and a son who was barely a year old. The banks were closed when he fled and even if they had been open, they weren’t giving money to Jews. Pressed for money with only minutes to spare, Rabbi Saffra was forced to sell his most prized possession, a set of Shas (Talmud)…
A complete set of Shas was a rarity in Frankfurt, Germany in those days and Ernie Guttmann wanted one. No one knows exactly how much Guttmann paid Rabbi Saffra for the set of books, but it was sufficient to get the rabbi to Holland.
End of scene one of what turned out to be an amazing story involving, Rabbi Joseph Saffra…
Scene two. Rabbi Saffra sends for his wife and children and settles in New York. Though reunited with his family, his set of Talmud books, his second love, remained in the hands of another.
Scene three. Guttmann and his family survive the Holocaust and move to America. His wife passes away. Guttmann takes up residence in Baltimore, Maryland.
Scene five. A young man named Shmuel Tarshish from Chicago marries a young lady, Adina Zehnwirth from Queens. They settle in Baltimore.
As it turns out, Tarshish’s great aunt is Guttmann’ second wife Debbie and Tarshish takes his new bride to meet Tante Debbie and her husband Ernie.
As they sit making small talk, Adina Zehnwirth Tarshish makes mention of the fact that her grandfather was from Frankfurt. Ernie’s eyes lit up “I was a young yeshiva boy in Frankfurt, perhaps I knew your grandfather,” he said. Adina Tarshish relayed that her grandfather was Rabbi Joseph Saffra and Ernie’s mouth dropped. He got out of his seat, ran to his book shelf and showed Mr. and Mrs. Tarshish the set of Talmud that he, Mr. Guttmann, had purchased from Adina’s grandfather in November of 1938.
On the spot, Mr. Tarshish asked if they could purchase the set of Talmud with Rabbi Joseph Saffra’s name in it, the set of books that set him free and saved his life, and ultimately the life of Rabbi Saffra’s family. Right then and there Aliza and Shmuel offered to buy the set at any price, the set that set Adina Zehnwirth’s mother free to come to America and give birth to her. Mr. Guttmann declined, for the Talmud books were very precious to him as well.
… Scene six. June 2001. Ernie Guttmann passes away … In June of 2002 the children of Ernie Guttman contact Shmuel Tarshish and inform him that the Shas, the holy books that once adorned Rabbi Saffra’s bookshelf in Frankfurt, are his for the taking, for free. “Your wife’s grandfather sold them under duress, to save his life, and the lives of his family. They belong to you; come and retrieve them.”…
The Guttmanns said that Rabbi Saffra sold it under duress. Was the sale valid?
May the Saffras request to buy it back?
How much pressure can they place on Guttmann to do so?
What is the validity to the Guttmann children’s gift to the Saffra grandchildren?
What is the Halacha?
The sale was valid. The Saffras may investigate whether it is up for sale but cannot even devise a scheme to get Guttmann to acquiesce to sell the Shas. See detailed explanation under what circumstances the Saffras may keep the Shas.
A Shas full of History invokes the following Halachos.
How does Halacha view and deal with high-pressure sales?
Generally, the result of one’s actions are not attributed to him/her if the performer was forced to act. This applies to sins which one is forced to do, as well as legal actions. Thus, if one is forced to give a gift or sign a document of sale, there is no legal validity to the act. The result of one’s actions needs cognitive presence to warrant attributing them to the actor. An act under duress lacks the necessary cognitive presence [Aruch Hashulchan Choshen Mishpat 205: 1].
Nevertheless, when one is forced to sell an article at market value, and the “seller” ultimately agrees to accept the fair value, even if he/she agreed to the transaction after having physically received the money, the sale is valid.
Since, the seller is ultimately not losing anything financially, he/she fully acceded to the sale and reached the requisite cognitive presence to legally transfer ownership of the said article. This is only true if the seller actually received the money. It is questionable if an IOU is sufficient [Aruch Hashulchan Choshen Mishpat 205: 2, 3].
[When one is forced to sell the said article below the fair value, whereby the seller does incur a financial loss from the sale, it is as though being forced to give a gift and the sale is invalid.]
Yet, to counteract attempts at high-pressured sales, when threatened with extreme measures of pressure, Halacha permits a seller to preempt a high-pressure sale with a “preemptive invalidating disclosure” called a מוֹדָעָה; that is; a statement in front of two witnesses who are aware of the existing extreme pressure tactics that the “subsequent act of sale” lacks legal validity and is only being done to placate the ire of the attempting buyer.
This legal statement does not need to be recorded in a document [Aruch Hashulchan Choshen Mishpat 205: 4].
Examples of extreme measures of pressure which lend itself for a “preemptive invalidating disclosure” include: the buyer or his/her proxy threatening the seller physically or with financial sanctions to force the seller to sell the property.
The threat though, must be one which the buyer or his proxy can plausibly carry out [Aruch Hashulchan Choshen Mishpat 205: 6].
Even if it is difficult for the buyer to carry out the threat, if he/she instills clear and present fear in the heart of the seller, whereby traumatizing the seller, such a pressure as well, suffices for the seller to invoke a מוֹדָעָה [Aruch Hashulchan Choshen Mishpat 205: 6].
However, if the seller is forced to sell the article to get money to pay a debt, even if the debt was imposed upon him/her in a threatening way, the seller cannot invoke a מוֹדָעָה. Instead, such a scenario, is viewed as though the seller pressured him/herself into selling it.
A seller may not invoke a מוֹדָעָה if he/she decided on his/her own volition to sell the article even though he/she was in a tight spot for other reasons not related to the actual sale of the said item; for in truth, almost any sale of a personal item is done so because the seller needs money for one reason or another. The מוֹדָעָה institution is intended specifically to counteract unethical high-pressure sales [Aruch Hashulchan Choshen Mishpat 205: 7, 8].
Nevertheless, as a gift is a one sided act on the part of the grantor, a preemptive מוֹדָעָה can always be issued before giving a gift or absolving someone from a debt which invalidates the act even if no pressure tactics existed. So long as the grantor reveals beforehand that he/she has no intention to give value to his/her words, the gifting act lacks validity [Aruch Hashulchan Choshen Mishpat 205: 9].
An example of a gift is the giving of a get when the husband is not required to do so by Halacha. Thus, in truth, when a man gives a woman a get when not required to do so, one runs a risk that he issued a preemptive מוֹדָעָה before two witnesses invalidating any subsequent giving of a get.
Thus, in order to protect the woman from such behavior, a clause is added into every get, whereby the man signs that he annuls any possible preemptive מוֹדָעָה that he may have made.
Because of this possibility, when Beit Din arranges a get, they instruct the man to declare:
שִׁמְעוּ אֵלִי! אַתֶּם עֵדִים שֶׁאֲנִי מְבַטֵּל לִפְנֵיכֶם כָּל מוֹדָעָה וּמוֹדָעָה שֶׁיָּצְאָה מִמֶּנִּי וְכָל דְּבָרִים שֶׁאָמַרְתִּי שֶׁאִם יִתְקַיְּמוּ יִגְרְמוּ לְבִטּוּל הַגֵּט וְכֵן פּוֹסֵל אֲנִי כָּל עֵדִים שֶׁיּוֹדְעִים שֶׁאָמַרְתִּי כָּל דָּבָר הַפּוֹסֵל אֶת הַגֵט וכולי.
Though, the Guttmann children said that Rabbi Saffra sold his Shas “under duress”, such pressure would not invalidate the sale.
While the Nazi’s wanted his life, they did not say, sell the Shas or we’ll kill you.” He needed money. As he was pressed for money, he decided that it was worth it for him to sell the Shas at that time. Rabbi Saffra could not invoke a preemptive מוֹדָעָה in front of witnesses to disqualify such a sale.
The Shas belonged to Ernie Guttmann.
In June of 2002 the children of Ernie Guttmann contact Shmuel Tarshish and inform him that the Shas, the holy books that once adorned Rabbi Saffra’s bookshelf in Frankfurt, are his for the taking, for free. “Your wife’s grandfather sold them under duress, to save his life, and the lives of his family. They belong to you; come and retrieve them.”
While incredibly noble, and sincerely appreciated, their expressed reasoning was Halachically inaccurate. Rabbi Saffra decided on his own volition that it was worth it for him to sell the Shas to Ernie. He was not forced to do so. He received a fair market value for the Shas. The sale was valid and Rabbi Saffra could not even invoke a מוֹדָעָה in front of witnesses to disqualify such a sale.
Even if the Guttmann’s were correct in their statement that the sale was under duress, and as such are returning the Shas to the Saffras, them wouldn’t the Saffras be required to refund the money to them?
Instead, the Guttmann children acted completely benevolently and gifted the Shas they legally inherited from Ernie, because they understood the depth of sentimental value the Shas held in the hearts of the Saffra children. They understood that Ernie legally purchased it and were gifting it back to the Saffra family.
Mi ke’amcha Yisrael!
Do Not Covet
Ernie Guttmann was uninterested in selling. Under what conditions may the Saffra grandchildren try to attempt at buying the Shas?
This issue invokes the tenth commandment of the Ten Commandments; Thou shalt not covet.
When may a petitioner request to purchase an article and when is it forbidden to do so?
וְלֹא תַחְמֹד אֵשֶׁת רֵעֶךָ וְלֹא תִתְאַוֶּה בֵּית רֵעֶךָ שָׂדֵהוּ וְעַבְדּוֹ וַאֲמָתוֹ שׁוֹרוֹ וַחֲמֹרוֹ וְכֹל אֲשֶׁר לְרֵעֶךָ:
And you shall not be chomed your fellow's wife, you shall not (be mis-aveh) desire your fellow's house, his field, and his slave and his maidservant, his ox and his donkey, and anything that belongs to your fellow [Devarim 5: 18].
The tenth commandment includes two directives
1) lo sachmod and 2) lo sis-aveh
Rambam and Shulchan Aruch differentiate between the two.
Lo sis-aveh = do not fantasize and devise a plan to obtain another's object Lo sachmod = do not implement the plan about which you fantasized to attain; either by coercion, or pressure, even if you pay for it.
While both sins prohibit festering the drive to attain another' property Lo sis-aveh is strictly emotional, while Lo sachmod is taking the emotion to the next step; culminating with successful action.
Q 1). If A sees an article belonging to B, may A ask B if the article is for sale?
Yes. There is no prohibition of lo sis-aveh or lo sachmod to desire an article that you know is available for sale [Rabbeinu Yona Sha'arei Teshuva 3: 43].
Thus, A may investigate if the article is for sale. Strictly investigating if something is for sale is not a transgression of wanting another person's property. You simply wanted to know if that article that your friend presently has, is up for takes in the future [Minchas Pitim].
A must realize though, that bearing an underlying desire for the article even if the owner is uninterested in selling it constitutes lo sis-aveh and pressuring the seller to part with his/her belongings when you know that he/she really does not want to do so, is a transgression in process of lo sachmod [Rabbeinu Yona ibid.].
- 2) A potential buyer approaches a homeowner and asks if the home is for sale. The owner says “no”. The potential buyer continues to sweeten the deal; hoping the homeowner will agree. Is such behavior permissible?
If the reason why the homeowner does not want to sell is simply financial; meaning, he/she thinks that he/she could only get x for it and are unwilling to sell for so little, and the prospective buyer tells the homeowner that the price is something they would consider, then it is permissible.
However, if the homeowner is simply uninterested in selling, for example, they love the neighborhood, are idealistic about where they are living, then to offer the homeowner an offer that he/she cannot refuse, is a transgression of the prohibitions of lo sis-aveh and if successful in procuring, lo sachmod [Rambam Sefer HaMitzvos 264].
Q 3). While the coveter transgresses lo sis-aveh, does the coveter transgresses lo sachmod, if after pressuring the seller to sell, the seller acquiesces and agrees to sell?'
Even if he pays for the article, and the seller agrees to sell it, if the seller does so begrudgingly, the buyer transgresses the prohibition of lo sachmod.
Rambam rules that even if the seller subjects to the pressure and agrees to sell it, although the sale is valid, the buyer transgressed lo sachmod because he pursued procuring an article that the seller initially did not want to sell.
As Maharal [Tiferes Yisrael] writes: while lo sachmod is completed when implementing the plan, the beginning and root of the sin is the emotion.
Ernie did not want to sell. The Shas was precious and sentimental to him. The Saffras were permitted to have asked initially whether it was up for sale. But once they understood that the reason why Ernie refused to sell was not because the price was too paltry, devising a plan to try to pressure Ernie to sell it would constitute lo sisave and carrying out their plan, even if paying a steep price for it would constitute lo sachmod.
The Guttmann children subsequently gifted the Shas back to the Saffras wholeheartedly. In fact, they gifted it back a whole year after Guttmann passed away. Arguably, we can assume that it was not gifted because they felt pressured, rather out of the benevolence of their hearts. It was a valid gift. The Saffras may keep the Shas.