Jewish Law in Our Times

by Simon M. Jackson, Adv., Legal Advisor to Torah MiTzion

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4 - Kofin Al Midat Sedom in Modern Israeli Court Judgments. (Part 1)

A 3 year old girl suffers from an incurable disease. The doctors estimate that she is likely to die very soon and the only cure for her is to transplant bone marrow from her 8.5 year old sister. The transplant process is almost harmless to the donor but may hasten the death of the donee in the event of it not being successful. The Attorney General and the parents petition the Court in 1983 to order the doctors who had recommended a transplant to carry it out.

Should the Court apply the principle of Kofin Al Midat Sedom to compel the bone marrow donation?

In reaching its judgment, the Jerusalem District Court (Justice Tal) considered the position of the Halacha in a case such as this.

“We are commanded by the Torah to save a person in a perilous situation: ‘From where do we know that a person who sees another drowning in a river, or mauled by wild animals or attacked by robbers, must save him?’ [asks the Gemara in Sanhedrin 73b] From the verse: You shall not stand idly by the blood of your neighbor (Vayikra 19:16).’ Apart from the negative command not to stand idly by, there is also a positive command to rescue a person who is in danger, derived from the duty to restore something that another person has lost [hashavat aveida - see Devarim 22:2], which the Rabbis interpreted as meaning that even his life you must restore to him…

The same applies to rescue from a possible peril (Chidushei HaRan, Sanhedrin 73b), even if that involves discomfort to the rescuer (Magen Avraham 156:2). Since the obligation to rescue is a positive commandment, it is clear that according to the Halacha the rescuer may be compelled to act on pain of death - “until his soul departs” (Ketubot 96a-b) and not to follow in the manner of Sodom (Bava Batra 12), for this is the case with all positive commandments.

The authorities are, however, divided over whether the rescuer must place himself in danger or [even] potential danger in order to save his neighbor even from certain peril (Hagahot Maimuni to M.T. Rotzeach 1:14)… As against this, there is the view that to go so far is an act of piety but is not obligatory (Radbaz 3:2052)…[1]

In the present case, even under the Halacha there is no occasion to compel the young sister to donate bone marrow. First of all, since she has not reached the age of majority, she is not bound at all by the commandments. Secondly, since the bone marrow will be taken under general anaesthetic, she faces potential danger, even though it is remote, and those who think that no obligation to rescue arises where there is potential danger do not differentiate between immediate and remote danger. (One of the reasons given by Radbaz citing an actual case that he knew of is that potential remote risk may become a real risk.)”

Notwithstanding the above considerations, the Court permitted the mother to consent in place of the daughter, primarily on the basis that if the sister did not donate her bone marrow to save her younger sister she would be forced to perpetually live with the guilt - guilt which would only intensify as she got older - that she did not do all she possibly could to save her sister’s life.

Kofin Al Midat Sedom- Guiding Principle in the ModernStateof Israel

In 1959, the Jerusalem District Court was asked to rule in a case concerning the dissolution of a partnership. A plan was produced by an appraiser under which the partnership assets were divided into three parts. The parties did not claim that this division was defective or that the shares suggested by the appraiser were not completely equal. The sole dispute between the parties related to whether the shares should be transferred to the parties by lot or whether one or other of them should be given a right to choose which share he would prefer - and if the latter, whether he should have to pay for the privilege.

The question that arose, according to the Court, is whether in a country like Israelit would be just to leave it to blind fate to prevent a person who has worked in an enterprise from using the property he desires.

The presiding judge, Justice Lamm, decided not to follow the English precedent which would have disentitled any partner from his right to choose certain parts. Instead, he inquired into Jewish Law “to examine if that law makes it possible to adjudicate the matter without drawing lots.”

Justice Lamm first cited the Gemara in Bava Batra 12b which discusses the case of a certain individual (Reuven) who bought land on the boundary of his father’s property. When he and his brothers were dividing up their father’s estate, Reuven said to his brothers: “Award me a tract of land that borders on my boundary.” The brothers refused. Rabba ruled: “In an instance such as this we coerce people not to emulate the traits of the inhabitants of Sodom(Kofin Al Midat Sedom)” - for it costs the brothers nothing to honor Reuven’s request.

The Court then cited the ruling of the Rambam (M.T. Shechenim 12:1), based on the above Gemara, which succinctly states: “When brothers or partners come to divide land, each to take his share, if it is entirely good or bad, and the entire field is uniform, they share according to measurement alone, and if one of them asks that his share should be adjacent to his own land to form one tract, his wish is granted and the other is compelled to agree, since to prevent such a division is to act in the manner of Sodom.”

By contrast, the Court noted the ruling of the Tur (Choshen Mishpat 174). There the Tur requires a partner who wishes to enjoy a particular parcel of property to pay the other partners consideration for this privilege: “Brothers who come to partition and the shares are valued one against the other, and then when they come to cast lots, one of them desires one particular parcel and values it and says: ‘I will give for it so much more than it was appraised at or you take it for that amount,’ he is listened to, and if the others do not want it at the increased price he takes it without lot.”

Justice Lamm summed up the different approaches. “We see that in Jewish Law as well there were differences of opinion and some of the Rabbis did not permit a partner to enjoy - without paying extra for the privilege - something that did not make the other poorer, and even those who agreed to a right of preference restricted it to adjoining owners alone.”

“In the meantime, however,” Justice Lamm concluded, “the movement of national renaissance has grown and the Jewish People have reclaimed the soil, and it does not seem to me that division should be so effected that a person who has contributed to the growth of an enterprise and its profitability should be prevented from selecting what he wishes when there is no dispute that all the shares are equal in value. The sentiment that a person has for a thing which he tended and nursed over many years is a worthy consideration to be taken into account no less than actual economic interest”!

Next Column: Reuven illegally extends his apartment on common property. Can he rely on the principle of Kofin Al Midat Sedom to prevent his neighbors from demolishing it?


[1] See my article, “The Duty to Rescue v. Self-Jeopardy,” which expands on these differing viewpoints (http://www.torahmitzion.org/eng/resources/showLaw.asp?id=417 ).

 

To ask Simon a question regarding this article, or for assistance with any Israeli legal, notary or professional translation services, click here: www.jacksonadvocates.net

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Jewish Law in our Times > Good Faith and Midat Sedom

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