Is it Permitted to Play the Lottery and Gamble? - Rabbi Michael Shlomo Avishid shlita

00:02 Speaker 1 You’re listening to “Lema’an Yishme’u,” a podcast from Machon Halacha Chabad.

00:10 Speaker 2 We chose a topic that comes up very often. People sometimes like to play the lottery in their spare time. It doesn’t take long—just a few minutes. But there’s also gambling. Sometimes a person knows how to play checkers or more sophisticated games, like chess, right? He knows how to play, he’s confident, and they wager money. People bet on poker, on cards, on sports results. I think tonight it’s Brazil against France: three goals for France and only two for Brazil. And someone who predicts it correctly can make a lot of money. In France there’s also—I don’t know if you have it here—tiercé, horse racing, where you bet that number thirty-two will come first and this one will come second. You place a bet, and then you can win a large sum of money. And that causes many people to lose money. Now, before I get into the substance of the issue—and I really do want to get into it, because you hear a lot of things. Some say it’s permitted, some say it’s forbidden, and some say it’s a disagreement between Sephardim and Ashkenazim. I sent out the invitation to the Torah class on websites, including to rabbis I know. Each one sent me something he had written about it at some point. See? I said it would be worth your while to come, because there’s a lot of incorrect information. So we’ll really get into the subject. But first, whether we end up saying it’s permitted or forbidden, I want to say, as an aside, that I’m still relatively young—“I was young,” and I haven’t quite “grown old” yet—but I’ve already seen this destroy families. Gambling destroys families. I’ve seen families where it led to the husband going to prison, and all sorts of things—and people get

02:32 Speaker 2 into debt and enormous trouble, because these games are addictive. They’re addictive. So clearly, even just as sound advice, getting involved in these things in the first place is extremely serious. But we’ll discuss the halacha, and in particular the lottery, which is very, very easy to play. You’re not getting into all sorts of gambling and bargaining—except that, unfortunately, some people might spend a hundred shekels a month on it, or more. So we’ll discuss that. Let’s start at the beginning. There’s a Mishnah in Sanhedrin, page 24, about people disqualified from serving as witnesses or judges. There are things that, if a judge or anyone else does them, prevent him from serving as a judge or a witness. There’s a list, but we’ll talk only about the item relevant to us, not the whole list: “These are the disqualified ones: one who plays with dice.” People who wager on—there are various views; questions afterward, at the end, so we can stay focused for now. People play cards or games with stones. The Rishonim give various explanations, but it’s a gambling game. So someone who gambles is disqualified from testifying. He can’t be a judge. This is important. You have a wedding, and you invite witnesses. People mistakenly think that eating kosher and keeping Shabbos—or just keeping Shabbos—is all they need to know about a witness’s qualifications. Anyone who has studied the laws of testimony, in Choshen Mishpat, section 34, knows it’s much more complicated. Sometimes a person is G-d-fearing and everything, but you know that he plays poker or some other gambling game once a month or every couple of months, or plays the lottery. You need to know this is serious. If those are the witnesses you chose, it could invalidate the entire wedding. And we’re not asking only about weddings. We’re also asking about ourselves: Are we allowed to?

04:57 Speaker 2 Are we forbidden to? Does it disqualify us or not? That’s the question. So there’s a Mishnah that says plainly that gamblers are disqualified from testifying. The Gemara asks the obvious question: “What has he done?” Poor fellow, what did he do? What did he do to be disqualified? The Gemara then brings two views. What did he do? Rami bar Chama—let’s remember his name—was a contemporary of Rava, of the fourth generation, and a student of Rav Chisda. Rami bar Chama says he’s a thief. Why is he disqualified from testifying? Because a thief is disqualified from testifying: “Do not join hands with a wicked person” to serve as a witness. He’s a thief, so he’s disqualified. Rashi explains—but what did he steal? I made a bet with someone. A word is a word. I said, “If you win, I’ll give you my money. If I win, you’ll give me yours.” I lost, and I paid. Rami bar Chama says the person who took the money is a thief, and therefore disqualified from testifying. So Rashi explains. First of all, what does Rashi say? He doesn’t say he’s actually a thief under Torah law. His wording here is, “It is akin to theft.” It’s a form of theft. [unclear] Rashi says in two other discussions—there’s another discussion of disqualified witnesses in connection with testimony about the new moon, in Rosh Hashanah, page 22, and also in Shevuos, page 31—that it is “theft under rabbinic law.” Fine, now that’s clear. And the wording here in the Mishnah also implies that we’re talking about theft under rabbinic law. There’s being a thief under Torah law, and there’s being a thief under rabbinic law. Why am I a thief under rabbinic law? That was the deal: you lost, you pay. Why am I a thief? Rashi says it’s because the person

07:16 Speaker 2 who played and lost his money—why does he hand over the money? He gives it because he committed to doing so. But when did he make that commitment? Not when he lost. He committed at the beginning, when he thought he would win. That’s when the deal was made. But the money changes hands when he loses. So clearly, when he gives the money, he does it with reservations in his heart. He has no choice; he gave his word. But he hands it over reluctantly, not wholeheartedly. Now, I didn’t rob him. I didn’t take his money by force or in secret. I’m not a thief or a robber. He gave me the money—took it out of his pocket and put it in my hand. How am I a thief? I’m not a thief under Torah law. But taking money from someone who thought he would win and is now handing it over only because he has no choice, because he gave his word—that counts as theft under rabbinic law.

08:17 Speaker 4 But he also considered the possibility that he would lose.

08:19 Speaker 2 Okay, true, that’s a good point. Let’s put it aside. But ultimately, when someone gambles for money, surely you’re not playing for a shekel like children. You put down a hundred euros, a thousand euros, two thousand euros when you go to a casino, and the money goes around. People put money down because they want to win a lot of money. So clearly, if he knew for certain that he was going to lose, he wouldn’t play. He’s simply optimistic. I’m not getting into whether that optimism makes him foolish or not, but that’s the situation. And now he hands over the money reluctantly, but he has no choice because he gave his word. So Rami bar Chama says: he’s a thief. Rav Sheshes comes along and says: No, I disagree. He isn’t—he isn’t a thief. The reason for his disqualification is something else. He doesn’t say outright that he isn’t a thief; he just explains that theft isn’t the reason. He has another reason: the gambler “does not engage in the productive work of the world.” We come into this world—we’ll see later how the Rishonim understand exactly what this means, but to put it simply, we came here to produce, not to sit and do nothing. You work with electricity, you work in some other field, you... And that way you also earn money by contributing something. I produce a product and sell it. Someone makes food that people eat; someone sells clothing. You help the world. You’re engaged in its work: “He did not create it to be empty, but formed it to be inhabited.” That, too, is productive work. But here your way of making money is to take it from people who lose it reluctantly over games. You’ve provided nothing in return. It’s simply free money. Fine, it was for a game, but you didn’t sell him anything other than your victory. So

10:24 Speaker 2 You’re not engaged in the work of building up society. That, essentially, is Rav Sheshes’s reason. The Gemara asks—and here we really need to... We’re going to focus all our attention on this first Gemara, because everything developed from this Gemara on page 24b of Sanhedrin. So we have Rami bar Chama saying: You’re a robber by rabbinic law. There are other interpretations; some understand it to mean a robber by Torah law. There’s Tosafos, but according to most of the Rishonim, you’re a robber by rabbinic law. That’s the straightforward implication of the Mishnah, and it also seems clear from the Mishnah in Rosh Hashanah, page 6. So why does Rami bar Chama say you’re a robber by rabbinic law? And Rav Sheshes says it’s forbidden. Why, by rabbinic law? Because you’re not engaged in building up society. Fine, but what difference does it make to me? It’s forbidden either way. What’s the practical difference, the Gemara asks? In practice, both of them forbid gambling. So what difference does it make whether it’s for this reason or that one? And Rav Sheshes says... The Gemara says according to Rav Sheshes: If a person has a business, has a job, he’s engaged in building up society. I’m an electrician, I’m a lawyer, I’m a builder. I have a job, I earn a living, and everything’s fine. Sometimes, on the weekend, on Sunday, people like to play poker with friends. I’m engaged in building up society. So if a person has an occupation besides this, if gambling isn’t his whole life, then according to Rav Sheshes he’s engaged in building up society. I’m not a robber; everything’s fine. Not so according to you, Rami bar Chama: You’re a thief. What difference does it make whether I have a job or not? Can someone with a job steal from his friend? That’s what the Gemara says. That’s essentially the practical difference between the two reasons: whether gambling is his only occupation or he has another occupation. According to Rami bar

12:17 Speaker 2 Chama, it’s always forbidden. According to Rav Sheshes, only when he has no other occupation besides gambling. Now the Gemara challenges Rami bar Chama’s position. From the whole course of the Gemara, it looks as though Rav Sheshes’s view is closer to the truth: he doesn’t see the gambler as a thief, even by rabbinic law. Now Rashi explains that Rav Sheshes holds there is no robbery here at all. He isn’t merely giving a different reason, about building up society; he thinks there’s no theft here at all. And Rashi brings, essentially, two proofs, two... In the Gemara, when do we actually say... Rami bar Chama’s expression is this: Why is he a robber? In the Gemara’s words, “Because an asmachta does not effect a transfer of ownership.” He was counting on winning; he didn’t expect it to turn out so badly, and in the end he hands over the money reluctantly, so the other person hasn’t acquired it. Rashi has a question for Rav Sheshes, an unspoken question: What, you don’t agree? The Gemara says in many places that an asmachta does not effect a transfer of ownership. So Rashi says: No, Rav Sheshes agrees with that, but not in these cases. In this case, it’s as you said. Rashi says a normal person, if he isn’t mentally ill, knows that when you play, you can lose. In particular, there are two types of gambling, the Ramban says. There are wagers on something like chess, as I said. A person thinks he’s a genius and will beat everyone. He may be very optimistic because he’s very good at chess. But there are games that depend on luck. You bet that in this match between Brazil and France, you’re sure Brazil will score five and France will score three. That’s luck. Yes, sometimes you have the best players—it could be Moshiach himself playing. They call him Messi over there, in Argentina. And still, if he

14:30 Speaker 2 doesn’t succeed, he doesn’t succeed. Sometimes the ball doesn’t go in. So there are games that depend on luck. Now Rav Sheshes says, according to Rashi’s explanation, as you wanted to say: Fine, I was optimistic, which is why I played. I thought I’d win, but I also understand there’s a possibility I won’t win, that I won’t predict the horse race correctly, that I won’t win at chess. I can picture that happening; I’m not that crazy. So he says that because the person also considered the possibility of losing, clearly he’s not a robber. He doesn’t agree with Rami bar Chama. In contrast, what are examples where an asmachta does not effect a transfer of ownership? Rashi brings two examples from the Gemara. There’s the same case on pages 73 and 24 in Bava Metzia, and there’s one in Bava Kama, page 28. Let’s just give the... We don’t need several examples here, just one. A person is a sharecropper. Sometimes I have a field and a sharecropper, someone I hire. Instead of paying him a monthly wage, I give him a percentage of the produce. But I want him to work for me. I want him to prepare the land, to plow it. He’s responsible for the work. So he needs to... If he doesn’t tend the land, it becomes an untilled field. It’s an unplowed field, and it deteriorates. You have to keep tending it. So the owner calls over the sharecropper and tells him, “Sir, the rains will be coming soon. You need to work, to plow.” So he says, “Don’t worry, I still have time. Look, I’m telling you, relax—I’m even willing to make a commitment.” And then he tells him, “If, a week from now, your field hasn’t been plowed or worked, I’ll give you

16:35 Speaker 2 a thousand gold coins; I’ll give you ten thousand dollars.” It’s an exaggerated expression like that, but he tells him—even in front of other people. He says, “If I haven’t done it”—because he’s so certain; he knows he’ll do it. What’s a week? Tomorrow I’ll come with the children and we’ll do it, or tomorrow or the day after. So he’s so sure of himself that he tells him, “If I haven’t done it, I’ll give you a thousand—ten thousand dollars.” So the Gemara says that when the time comes and he hasn’t done it, you can’t obligate him to pay ten thousand dollars, because an asmachta does not effect a transfer of ownership. Rashi says that Rav Sheshes agrees in this case, because doing it really was in the sharecropper’s hands. He knew he could easily come and do it, but something happened in the meantime. He got sick, something happened to him, circumstances beyond his control arose, or he suddenly changed his mind. But when he made the commitment, it wasn’t like winning a game, which really depends on someone else too. Here, on the face of it, it depends only on whether I want to do it or not. In cases like that, he says, an asmachta does not effect a transfer of ownership. Now the Gemara comes and challenges Rami bar Chama. In that same Mishnah, right?

17:39 Speaker 5 Leave that for—the games.

17:43 Speaker 2 Yes, but there, a normal person reckons that he might lose, and the outcome depends on other things. It depends on luck. It depends on the other person’s skill. Here, though, everything was apparently almost certain. It was practically in the bag that I’d do the plowing. Now the Gemara challenges Rami bar Chama and says that later in the Mishnah, after listing those who are disqualified and the disqualification of a dice player, Rabbi Yehudah said: “When does this apply?” When do we say this? When they have no occupation other than that. This matches Rav Sheshes’s position on the practical difference. Rabbi Yehudah says the reason there’s a problem with a dice player is that his whole life is spent gambling. He has no other job; that’s all he does. Now Rabbi Yehoshua ben Levi says this: Often in the Mishnah it says, “In what case are these words said?” or “When does this apply?” Does that come to disagree, or to explain? Rabbi Yehoshua ben Levi says that whenever it says “in what case” or “when,” it comes to explain. So there you are: you come along and hold—as the Gemara sets out the practical difference—that he’s a robber. But the Mishnah comes and explains that this applies on condition that he has no job besides gambling. If he has a job besides gambling, it’s permitted. So you see he’s not a robber. That’s what Rabbi Yehoshua ben Levi says. So that’s a challenge to Rabbi Yochanan. Rabbi Yochanan doesn’t agree with Rabbi Yehoshua ben Levi. Rabbi Yochanan says that when the Mishnah says “in what case,” it comes to disagree, while when the Mishnah says “when,” it comes to explain. But what does it say in our case? “When”? Ah, that means that even according to Rabbi Yochanan, everyone agrees this is only an explanation. And that explanation fits Rav Sheshes’s position, not yours. So it follows that he isn’t a robber. The Gemara says this isn’t such a powerful challenge. Even though Rabbi Yochanan is from the second generation and Rabbi

19:59 Speaker 2 Rabbi Yehoshua ben Levi was almost a contemporary of Rabbi Yehudah HaNasi. Rabbi Yehoshua ben Levi belongs to the generation between the Tannaim and the Amoraim—a Tanna who can disagree with other Tannaim. But he is still, in a sense, counted among the Amoraim. So the Gemara says: “Are you setting one person against another?” What are you trying to say? It’s like when someone comes to a rabbi and says, “Rabbi, how could you say that? I heard a rabbi in Kfar Chabad say something different.” Fine. Does that mean I can’t disagree with him? So, “Are you setting one person against another?” Fine, this is a disagreement between Amoraim. They hold that “When does this apply?” is meant to explain the earlier statement, while he holds that it disagrees with it. That’s a third opinion: that “When does this apply?” can also introduce a disagreement. But the Gemara doesn’t let up. It says that Rabbi Yehudah seems to hold that there’s a problem with playing dice even if a person has no other occupation. The answer is: No, that isn’t Rabbi Yehudah’s own view; it’s Rabbi Yehudah quoting Rabbi Tarfon. You can see that the Gemara is moving in Rav Sheshes’s direction. I’m abbreviating, because there’s another half page that takes the discussion in that direction. So now we have a disagreement between Rami bar Chama and Rav Sheshes about whether this involves theft. That’s a world of difference. It means that if someone has a job, all forms of gambling would apparently become permitted—races, sports, and playing dice. If I have a job and I only play games in my free time, that’s different. So we have these two opinions. Let’s see how the Rambam rules. In Hilchos Gezeilah, chapter 6, halachah 10, the Rambam says this about those who play dice and are considered thieves by rabbinic law. He begins by listing the various people considered thieves by rabbinic law. Here—

22:02 Speaker 2 This is Hilchos Gezeilah, not Hilchos Edus. Until now, we were discussing the question of disqualification as a witness, right? The question there was why he is disqualified: is it because he is considered a thief by rabbinic law, or not? Here we’re in Hilchos Gezeilah. So the Rambam lists those considered thieves by rabbinic law, and one example is people who play dice—whether they play with pieces of wood, pebbles, or bones; it makes no difference. They gamble and make a condition that whoever beats the other person at that game will take a certain amount of money from him. This is theft by rabbinic law, even though he took the money with the owner’s consent. Why is he a thief? The other person gave it to him willingly. Because he took another person’s money for nothing, through play and amusement. In short, even though he agreed to the bet, the person isn’t entirely at peace with losing his money. So this is considered theft. The Rambam continues: The same applies to people who bet on animals, wild animals, or birds, agreeing that whoever’s animal wins... There are animal fights too, by the way. Many people want to say that any game that exhausts the animals or causes them suffering, like horse racing, is a problem. The horses work very hard, they’re whipped, and sometimes they have to eat less to keep them light. People say there’s tremendous suffering of animals in that sport. But you can see that this wasn’t what particularly concerned the Sages here. After all, people make use of animals for their needs—for clothing, food, play, and enjoyment. And there will be a feast for Torah scholars in the future, with the wild ox and so on. So that isn’t the point. All right, if you’re sensitive to the suffering of animals, I apologize, but that isn’t our subject. So the same applies to those who bet on animals, wild animals, or birds, agreeing that whoever’s animal wins, or runs faster, will take money from the other. All—

23:57 Speaker 2 Of this is theft by rabbinic law. That’s halachah 10 of chapter 6 in Hilchos Gezeilah. In halachah 11, the Rambam says, “Playing dice with a non-Jew does not involve the prohibition of theft.” Oh, you want to play? Play with a non-Jew. What? Isn’t it forbidden by rabbinic law to steal from a non-Jew? It is forbidden, but the Sages did not extend this particular rabbinic prohibition of theft to a non-Jew. Still, the Rambam says there is a problem: engaging in idle pursuits, when a person ought to devote his days to Torah. It isn’t fitting. It doesn’t suit a person. If you have time, go learn. What are you doing playing this game? But strictly speaking, there’s no theft here. That’s what the Rambam says. The Tur, in siman 370, cites this Rambam and says that the Rambam clearly rules like Rami bar Chama, because he calls it theft by rabbinic law. Rav Sheshes says there is no theft involved. What further proof is there that he rules like Rami bar Chama? He distinguishes between playing with a Jew and playing with a non-Jew. According to Rav Sheshes, playing is permitted only when a person has another occupation, rather than gambling all day. If he gambles all day, it would clearly be forbidden to play even with a non-Jew. After all, according to Rav Sheshes, a gambler is disqualified because gambling is all he does and he isn’t engaged in making a productive contribution to the world. What difference would it make whether he plays with a Jew or a non-Jew? Here, then, we’re talking about someone who has another occupation, and the Rambam did not make that distinction. He didn’t say that the problem with playing with a Jew arises only when gambling is his sole occupation. He says it makes you a thief. You gamble with a Jew even once, you’re a thief. You gamble with a non-Jew—

25:46 Speaker 2 You’re not a thief. It still isn’t fitting, because you should be occupied with Torah and more important things, but you’re not a thief. With a Jew, however, you are. So the Rambam rules like Rami bar Chama. The Maggid Mishneh, one of the great Rishonim who explained the Rambam, asks a question here. This is Rabbi Vidal de Tolosa—Tolosa is Toulouse, according to many opinions. He asks: Seemingly, that isn’t the Gemara’s conclusion. The Gemara in Sanhedrin appears to favor Rav Sheshes’s position. Fine, “Are you setting one person against another?” But when you look at the whole discussion, Rav Sheshes makes a compelling argument. His position also fits with Rabbi Yehoshua ben Levi, with Rabbi Yochanan, and with the plain meaning of the Mishnah: “When does this apply?” sounds more like an explanation, and so on. So the Maggid Mishneh asks: Isn’t that the plain sense of the Gemara? What’s more, he says, the Rambam apparently contradicts himself. Where? In Hilchos Edus. Until now we were in Hilchos Gezeilah, chapter 6, halachah 10. In Hilchos Edus, chapter 10, halachah 4, the Rambam discusses people disqualified as witnesses and writes: “The same applies to one who plays dice, provided that he has no occupation other than this.” When is he disqualified as a witness? Only when gambling is his sole occupation. “Since he is not engaged in making a productive contribution to the world, he is presumed to live off his dice winnings, which are a trace of theft.” That’s an interesting choice of words too. First, he says this applies only when gambling is the person’s sole occupation and he has no other. But earlier you said he’s a thief. If he’s a thief, he’s also disqualified as a witness. So—

27:46 Speaker 2 No: regarding disqualification as a witness, the Rambam rules like Rav Sheshes. When is he disqualified? When gambling is his only occupation and he has no other. What’s the problem? If that’s all he does, most of his money comes from theft. What does he live on? What does he use to raise his children? How does he pay the electric bill? How does he survive? He lives off theft. That’s what the Rambam means when he says that the person is presumed to live off his dice winnings, which are a trace of theft—because that’s all he does. If he has other businesses, you can say that he lives on the money he earns as, say, a computer programmer, and not only on dice winnings. By the way, Rashi and the Tur don’t explain “he is not engaged in making a productive contribution to the world” that way, as meaning that he lives off a trace of theft. They explain that the person isn’t building anything here. He’s just finding a way to enjoy other people’s money for nothing. He isn’t building or producing anything. What practical difference does that make? The Perishah asks what the difference is between these two explanations. Consider someone who has an inheritance. There are people like that. Why do they spend all day at a casino? They inherited ten million shekels from their father. They have enough money to live on. Their father didn’t steal it; he was a good, hardworking person, and they received ten million shekels. Now this person lives off his inheritance and spends all day gambling. According to the Rambam, that shouldn’t be a problem: even if gambling is all you do, month after month, year after year, you have plenty of money. I put the ten—

29:29 Speaker 2 A million—I put eight million in the bank, and I live only off the interest. So I have a living. I’m not a robber; I’m not living off even a trace of robbery my whole life. But what? I’m not doing anything productive. So according to the explanation that this is the point—that you aren’t working, as the Tur and Rashi explain it—there’s a practical difference: even if he has an inheritance, there’s still a problem. But according to the Rambam, the problem is only if he has no other work besides this, because that shows he earns his living solely from robbery. And not just dice—even all kinds of games with nutshells and pomegranate shells, and so on. So here there’s a contradiction. The Rambam really contradicts himself. Not only that: in Hilchos Gezeilah, he seemingly goes against the plain meaning of the Gemara’s conclusion and follows Rami bar Chama; here he follows Rav Sheshes outright. So that’s a major difficulty. Here in Hilchos Eidus, the Kesef Mishneh has a very, very long discussion, and he sets out to reconcile the Rambam. First he says: No, this doesn’t go against the Talmud. In Sanhedrin it does say, “Are you setting one man against another?” Even if you see a tendency there, there are many other sources. There’s a source in Shabbos, page 148, that playing dice is forbidden; that’s an unqualified Mishnah, which we’ll discuss at the end. There’s a Mishnah on page 22 of Rosh Hashanah that a dice player is disqualified. Why? Because it is robbery by rabbinic law. The Gemara there explicitly explains the Mishnah that way: it is robbery by rabbinic law. That’s simply what the Gemara says there. And he brings another proof from Sanhedrin, page 26. So first he resolves that point: Don’t say that the Rambam’s ruling in Hilchos Gezeilah goes against the Talmud; it fits with the Talmud. But what about the contradiction? Here the Kesef Mishneh, Rabbi Yosef Karo,

31:35 Speaker 2 offers two very forced answers. He doesn’t call them forced, but anyone reading them feels that they are. So he says this: Really, the Rambam rules like Rami bar Chama. It’s robbery even once; it doesn’t have to be his occupation. Then why does he require, here, that the person have no other occupation? He says the Rambam isn’t ruling like Rav Sheshes; he’s ruling like Rami bar Chama. Rather, with this person—whom do you see him playing with here? It doesn’t say whom he plays with. So he says, in Hilchos Eidus, to answer the contradiction: He’s playing with a non-Jew. Say I want him as a witness at my wedding, at my son’s wedding. What I’ve seen of him is that this man has no job, and every time I see him, I see him gambling with a non-Jew. He plays with this non-Jew, plays with this non-Jew. That’s what I’ve seen. He plays with non-Jews and has no job. Everyone in town knows he has no job, and everyone knows he plays with these non-Jews. But wait—if that’s the case, there’s no robbery here. So why does it say he lives off robbery? After all, over the years he lives off robbery—but this isn’t robbery. What does that mean? The Beis Yosef says: What we know about him is only that he plays with a non-Jew. But if someone has no job and you constantly see him playing with non-Jews, then surely he also plays with Jews; we just haven’t caught him doing it. That’s the Beis Yosef’s answer. It’s a little difficult. First of all,

33:16 Speaker 2 it doesn’t say here that he plays with a non-Jew. It says that someone who plays dice and has no occupation other than that is disqualified because he lives off robbery. It doesn’t say that what we see is him playing with non-Jews. Ah, playing with a non-Jew isn’t robbery, but since he doesn’t work, he probably also plays with Jews when you aren’t looking. Or there’s a second answer, also forced. The Beis Yosef’s second answer is that he receives money from both of them. The case is that he plays with Jews, but without money. Lots of people play poker or checkers and things like that without money: let’s see if I win. He plays without money, but you see that he doesn’t work, and you see all the time that he loves games. Surely we just haven’t caught him yet. This man is always playing and loves doing it—so how does he make a living? Surely there are people he plays with for money, and we just haven’t caught him yet. Those are the Beis Yosef’s answers, and they’re a little difficult. Now there’s a Ran in Sanhedrin, page 24, that’s very interesting. The Ran offers a major insight into the subject. He says that, in his view, even Rav Sheshes holds that this is robbery by rabbinic law. He only said that—he says there is, so to speak, a prohibition here. But when someone spends all day doing it, Rav Sheshes gives the reason that he isn’t contributing to the settlement of the world, right? And that is why there’s a problem. What new point was he making? That in such a case, there’s a problem even if he plays with a non-Jew. Or, the Ran says, you can put it this way—and this seems very plausible as an interpretation of the Ran: Rav Sheshes really agrees that it’s robbery even if you

35:31 Speaker 2 play just once. But the discussion there isn’t about whether it’s robbery; it’s about whether he is disqualified as a witness. He’s saying that only someone who does nothing but this is disqualified as a witness. Based on this, the Bach says in section 34, which deals with the laws of witnesses: We don’t need the forced answers the Beis Yosef gives in the Kesef Mishneh. It fits perfectly. The Rambam never ruled like Rami bar Chama; he ruled like Rav Sheshes. Rav Sheshes—they’re discussing people disqualified as witnesses. So here’s how it works: If you play even once with a Jew, you are committing robbery, and it is forbidden. You’re committing robbery by rabbinic law. Gambling once is forbidden, but you aren’t disqualified as a witness. But why? If you’re a robber, why aren’t you disqualified? There’s a principle—we studied it at length in kollel—that in the laws of disqualified witnesses, the person has to be aware that he’s violating a prohibition. This is what the Gemara calls “one who says it is permitted.” A person might think it’s permitted, sometimes out of ignorance. There’s a very famous responsum of Rabbi Akiva Eiger. We studied it at the beginning of a responsum on section 34, in question 96. Rabbi Akiva Eiger asks: A man shaves with a razor. Can you have him serve as a witness at a marriage ceremony? He says that in his time, yes: there are many observant people who aren’t aware of the prohibition. By the way, that still happens today. Do you know how many observant people, unfortunately, I see shaving very close here? They go over it with a number-one clipper, barely, and they think it’s fine. They’ve never asked a rabbi whether it’s permitted. You see them, observant people, coming to shul without embarrassment, because

37:36 Speaker 2 they don’t know. So, in short, he says: A person who plays like this has a job, earns money, and once in a while, when he has a little time, he gambles. He doesn’t realize there’s robbery involved. People don’t realize there’s robbery involved. “Nonsense, I put up the money and agreed; he agreed. I got the money from him. He lost—that’s on him.” I can’t really feel that there’s a prohibition here. Right. So this is a very pressing question today as well, concerning [unclear]. How far does this go when religious people sometimes watch [unclear]? It could be—no, it couldn’t be; they just don’t feel it. I remember when I was little, everyone knew it was forbidden. Everyone knew. If someone went—back then you had to get tapes, rent tapes, to watch a movie. Oh, he’d make sure nobody saw him going in there. Today people line up. Well, today you don’t need to do that anymore, with computers, but it’s a very interesting question. So he says this—let’s get back to the Rambam. The Rambam really rules like Rav Sheshes, and Rav Sheshes also agrees, as the Ran says, that there’s robbery here even on a single occasion. But when you play once in a while, you don’t feel there’s a problem with it. When someone does nothing but gamble and that is his entire income, he feels that all his money comes from other people’s losses. You aren’t contributing to building the world; you’re destroying it. You take money all day, and that’s how you prosper and make a living. Here, I’m also aware that it’s a problem, and so I’m disqualified as a witness. So that’s how to reconcile the Rambam. Now, after all we’ve just done, what have we seen? We’ve seen something even worse, seemingly, about gambling from the Rambam’s perspective according to this interpretation.

39:46 Speaker 2 Everyone agrees that gambling is forbidden as theft, even if it happens just once. The only question is whether the person becomes disqualified as a witness. Fine, but forbidden is forbidden. That’s what we’ve seen so far. You should know that many Rishonim disagree with the Rambam: the Tur, Tosafos, the Rashba, the Rif. Many, many Rishonim disagree. They say, “What are you talking about? There’s no prohibition of theft here.” As we learned from the Gemara at the beginning, the halachah follows Rav Sheshes. Rav Sheshes says there’s no theft here, as Rashi explains. After all, what did Rashi say? Rashi said the opposite, the opposite of Maran. I gave you two examples from Rashi. One was the sharecropper: according to Rashi, there’s no theft. And many Rishonim say there’s no problem at all with gambling. The only thing is, if gambling is his job, then certainly he isn’t engaged in anything else, and it would be forbidden. But most people work and just sometimes gamble with money in their free time. So that’s another approach. Now the question is: What does the Shulchan Aruch rule? In siman 34, the Shulchan Aruch quotes the Rambam’s ruling in Hilchos Eidus exactly. He doesn’t give the strained explanation there that it refers to gambling with a non-Jew. So presumably, what he wrote in the Kesef Mishneh doesn’t necessarily mean he holds that way; perhaps he accepts what the Bach says. The Bach came after the Beis Yosef, but what he says, essentially, is that for someone who gambles to be disqualified as a witness, gambling has to be his job. That’s all he does for a living. That is essentially the Beis Yosef in siman 34. In siman 370, siman 370, in se’ifim 1, 2, and 3, the Beis Yosef—who here is the Shulchan Aruch—clearly rules as the Rambam does in Hilchos Gezeilah. Quite simply, a person

42:07 Speaker 2 who gambles with a Jew is a thief. With a non-Jew, it’s permitted; with a Jew, he’s a thief. True, it’s forbidden to steal from a non-Jew too, as I said. Yes, from a non-Jew too, but that’s theft forbidden by Torah law. This sort of theft involving winnings, though, they permit even with non-Jews. So that’s all right. Rabbi Shimon Shkop says there’s no theft here because the other person agrees, so everything is fine; there’s no chillul Hashem or anything. The Torah considers it wrong, but with them it’s all right. So the Shulchan Aruch rules that it is definitely forbidden. Now, okay, that means that, apparently, for Sephardim, various forms of gambling are prohibited by rabbinic law. The Beis Yosef follows the Rambam’s approach all the way. Okay, and if gambling is all he does, he’ll also be disqualified as a witness. Okay. What is the Rema’s approach? In two places in Choshen Mishpat—siman 207, se’if 3, and siman 370, which I just mentioned, se’if 3—the Rema says: Everything we’ve seen is the Mechaber’s approach. But we hold like Tosafos and the Tur, essentially, that when someone gambles with a Jew—and the expression he uses there is that he is “not disqualified”—he isn’t disqualified by it. Now, siman 370 deals with the laws of theft, not the laws of testimony. So the word “disqualified” is interesting. Some wanted to understand it as meaning only that he isn’t disqualified; that’s how the Ben Ish Chai understands it in question 30 of Rav Pe’alim. But most poskim say no: these aren’t the laws of testimony. “Not disqualified” here means it isn’t forbidden. It’s an expression used to say that it isn’t forbidden. What’s the proof? Before the Tur disagrees with the Rambam in siman 370, he cites the Rambam’s view using all the Rambam’s terminology. In Hilchos Gezeilah, the Rambam writes that the person is disqualified by rabbinic law—disqualified, disqualified, disqualified. And the Rambam uses

44:14 Speaker 2 the word “theft” only in Hilchos Eidus. So “disqualified” amounts to “theft.” The Rema is saying that, apparently, there’s no prohibition here at all. He says it’s not forbidden unless you have no other occupation. Then, of course, it would be forbidden, as Rav Sheshes says. But if you have another occupation, it’s all right to gamble. In other words, the Rema disagrees. Aha! So when it comes to gambling, a person says, “I want to gamble.” If you’re Sephardi, even if it’s a one-time thing and you have a job, it’s forbidden; you’re a thief. If you’re Ashkenazi, the Rema says it’s permitted. That’s the simplified version, and many have indeed written it that way. But let’s go a little deeper together.

45:05 Speaker 6 Like Chabadniks do.

45:07 Speaker 2 And of course, we’ll get to the Chabad conclusion too. Okay. Now, there’s a Rambam in Hilchos Mechirah, chapter 21, halachah 3. The Rambam also discusses the principle that an asmachta does not effect a transfer of ownership, and he compares it to playing dice. A person comes along and says—he isn’t selling his house; he’s selling what’s in it. Sometimes people move and leave a lot of stuff in the apartment. Sometimes, out of sheer laziness about moving various things, people give them up. If you ever see someone clearing out an apartment and selling things, it’s worth going to look. People sell valuable things, children’s toys—they don’t have the energy to take them along. Sometimes, sadly, a home is breaking up, there’s a divorce, and the person is getting rid of the house’s contents. “Come, just take it.” He sells it to them dirt cheap. So sometimes someone might say—Reuven says to Shimon, “Come, come to my house.” Shimon hasn’t gone in to see exactly what’s there, and Reuven says, “I’ll sell you everything in my house for two thousand dollars. Pay me.” He says, “Everything in the house I’m selling you for such-and-such an amount, and everything in this chest I’m selling for such-and-such an amount, or everything in this sack I’m selling you for such-and-such an amount.” This is actually a case Rav Hai Gaon dealt with. Rav Hai Gaon has a book on monetary law called HaMekach VehaMimkar. He himself brings this case that he was asked about: “The buyer agreed and took possession. There is no acquisition here, because the buyer was not fully resolved to buy: he does not know what is inside, whether straw or gold. This is nothing more than playing dice.” The Rambam says: Haven’t we said that an asmachta does not effect a transfer of ownership? Right? After all, he’s a thief, like someone who plays dice. So this is not

47:09 Speaker 2 considered money acquired honestly. Here’s what he means. Say someone says, “Come, let’s make the transaction. Sell it to me. I’m willing to buy everything here.” He doesn’t know what’s there, but he says, “All right, I commit to paying you.” And you say, “Come, let’s make a kinyan situmta”—they shake hands. That’s one form of acquisition. “Let’s do it.” Afterward, the buyer goes into the person’s house and starts looking around. “Wait, this is all that’s here? I don’t want it.” “Hold on, you committed. We made a kinyan.” But he says it’s like playing dice. The person thought he’d come out ahead; he thought there would be interesting things there. In the end he discovers there aren’t, so he can back out. The Rambam compares it to playing dice. Why am I bringing this up?

47:57 Speaker 6 In connection with chametz.

47:59 Speaker 2 Very good. The Tzemach Tzedek—if you want to see a Tzemach Tzedek responsum that teaches you a great deal about all the laws of selling chametz, whether you have to specify the chametz and its locations, and so on, it’s in the responsa, Orach Chayim, siman 40. Today there are also two volumes of the Tzemach Tzedek with explanations that have been published. Oved Levin[?]—but this one is very, very good. The entire responsum is there. For someone who doesn’t have time to work through all the sources, everything is properly explained there. So the Tzemach Tzedek is asked: Wait, when you sell a non-Jew all the chametz you have in your house, he doesn’t know how much there is. He signs, and you arrange the sale, but the person doesn’t know what he’s buying. So perhaps it’s like playing dice, and the sale isn’t valid? That’s the question put to the Tzemach Tzedek. The Tzemach Tzedek responds—and by the way, he mentions there, in the course of a detailed discussion, that the Tur, who disagrees with the Rambam all along, nevertheless cites this ruling as practical halachah in siman 55—uh, siman 209, siman 209 in Choshen Mishpat. The Tur brings this ruling in practice. So they want to explain that when it comes to winning a game, the person doesn’t feel so much that he’s been taken advantage of. “If I had won, I would have taken the money. He won, so he gets it.” Here, the buyer feels bad because he says: This seller isn’t like the other person in a game between two people. Neither player really knows who will win, but the seller knows exactly what he’s selling. Only the buyer doesn’t know. So he really feels bad, and if the seller takes the money, it’s money the buyer parts with completely unwillingly. With a game, he says, “If I had won, I would have been happy for him to give me the money, so now I’m paying because I lost.” But

49:53 Speaker 2 Here, he knew everything and I didn’t. I’m the one who was fooled. So perhaps that’s why the Tur agrees. But the Tzemach Tzedek asks: What do we do with this in the sale of chametz? The Tzemach Tzedek says: Fine, that’s the Rambam. It’s the Rambam who says that a dice player, in a sale—but we rule like the Rema and the Tur, and according to the Tur, playing dice is not—there is a valid transfer of ownership; it isn’t theft. We rule like the Tur and the Rema, so I have no problem with not specifying the details of the matter. That’s the explanation he gives. What Sephardim do in their sales and so on—let’s put that aside. I don’t want to discuss it right now.

50:39 Speaker 7 But here you’re stealing whenever you win. You take a dollar in the sale of chametz; you’re taking something so tiny—

50:46 Speaker 2 But the non-Jew doesn’t know what you’re selling him.

50:48 Speaker 7 No, but it will always be more profitable for him. He only stands to gain. He can’t lose. Yes, he knows, but he gives a shekel.

50:57 Speaker 8 He gives a shekel. In the end, he pays for everything, if he goes through with it.

51:00 Speaker 2 Of course; he undertakes to pay for everything. Yes, there’s a deposit here, but he undertakes to pay for everything. So, in short, he says that this problem exists only according to the Rambam, and we don’t rule like the Rambam. That’s how the Tzemach Tzedek analyzes the issue. Okay. So why am I bringing this up? To say: Here we have a Rema who says gambling is permitted. A Sephardi will be stringent. For an Ashkenazi, in the course of that discussion in Shulchan Aruch, Orach Chaim, I see the Tzemach Tzedek telling me clearly that there’s no problem with it. But we’ll see that it’s not at all simple. Why?

51:40 Speaker 7 The sale of chametz? There’s another point: he knows that if he deals with it after Pesach, I’ll pay him a huge profit for it.

51:49 Speaker 2 Yes, but—

51:50 Speaker 7 That’s now.

51:51 Speaker 2 But it all depends on his free choice and ours, and he’ll agree. If he doesn’t agree, then it isn’t a sale. If he doesn’t agree, and we have to—he must be fully committed, with a one-hundred-percent valid transfer of ownership. During Pesach we’re dealing with bal yeira’eh and bal yimatzei, a Torah prohibition. We try to avoid any problems. So he says: Here’s this opinion. But I don’t want to give a class on the sale of chametz right now. I only brought it up in passing because, as Chabad chassidim, we have the Tzemach Tzedek, and along the way we saw that playing dice is a problem according to the Rambam, but not according to us. We rule like the Tur.

52:26 Speaker 8 But even according to the Rambam, this is with a non-Jew.

52:29 Speaker 2 Yes, that’s true. Good point. So that’s another answer. There, he also discusses the fact that when you sell to a non-Jew—because it’s like playing dice—then seemingly it should be a problem. It shouldn’t be a problem with a non-Jew. But some still want to say there’s theft involved. One of the ways he wanted to answer was to say that we hold otherwise, and that’s the point I want to take from this. I don’t want to discuss that particular detail. I only want to discuss the point I discovered in the course of looking at it. But we’ll see that it’s not simple, in a few minutes. Why? We have a ruling in Shulchan Aruch in the laws of Shabbos. It’s based on a Mishnah in Shabbos, page 148. It concerns drawing lots. Sometimes people draw lots for children and so on. I spoke with a rabbi about this maybe ten years ago. We discussed it in section 338. The problem is that we don’t have that section in the Alter Rebbe’s Shulchan Aruch; section 338 is missing. Anyway, in section 338, paragraph 6, they cite the Mishnah on page 148 of Shabbos. What does the Mishnah say? Say a father comes to divide portions among his children. Sometimes the portions are the same weight and the same size; it’s just, well, this one is dark meat, this one is white meat, and sometimes... So that causes a bit of arguing. Apparently, even in the time of the Mishnah, children argued over which piece they wanted. Boruch Hashem, today, with all the—twenty years ago, people really did serve whole chickens, and one person took this piece and another took that one. Today, boruch Hashem, you just order chicken legs and avoid the complication. But in the past it was a bit complicated. So the father wants to draw lots. Now, this isn’t like a contest where people win; it all belongs to the father. He does

54:24 Speaker 2 whatever he wants with it. So there’s a lottery, and there shouldn’t be any issue of drawing lots or gambling at all. And the ruling says that’s fine: these are people who aren’t particular with each other; it’s a family, it belongs to the father, and there’s no problem. But if there’s a large portion and a small portion, right? Who will get the large portion? There are several kinds of cake, and this is the cake everyone wants most. Who will get it? So he draws lots. Here the ruling says it’s forbidden. Now, we’re dealing with Shabbos. It could be prohibited on Shabbos because it resembles buying and selling. But on page 149 of the Gemara, the next page, it says, “And the same applies on a weekday,” without bringing any disagreement. The Mishnah’s concern isn’t limited to Shabbos. Even on a weekday, you don’t draw lots over a large portion and a small one. Why? The Gemara says it’s like playing dice. This is one of the proofs the Beis Yosef brought: you see that the Rambam’s view follows the Talmud. Here in Sanhedrin there’s an explicit Gemara, and here an unqualified Mishnah, which they explain as being about playing dice. Incidentally, in many versions—not the versions we have today, but in many versions of the Mishnah—the concern that it’s like playing dice is written in the Mishnah itself. Now, anyone who understands this—the Rishonim say there’s no playing dice here at all. It’s the father dividing things up. He could have assigned this portion to one child and that portion to another; instead it was decided by lot. It’s not a case of someone losing his own share. So the answer is no: playing dice is so serious that if you get children used to this sort of gambling, they’ll eventually be drawn into it. It can lead to real gambling, and that’s why it’s forbidden even on a weekday. Fine. Now, the Mechaber brings this ruling in section 322. He brings the ruling, but if it’s other people—since

56:24 Speaker 2 they are particular about it, it could lead to measuring and weighing. “But to set a large portion against a small portion and cast lots over them, even among members of one’s household and even on a weekday, is forbidden because of dice playing.” He says it’s forbidden not only on Shabbos. Though he’s discussing the laws of Shabbos, he says it’s forbidden on a weekday too. Okay, so here we have a dis—fine, the Mechaber is consistent with his own position. The Rema is silent. The Rema doesn’t say, “Wait a minute. In Choshen Mishpat, both in section 207 and in section 34, I’ll say that this is the Rambam’s view, but I don’t rule that way. This isn’t considered playing dice.” Tosafos there, on page 149, says that this follows Rami bar Chama’s position, but according to Rav Sheshes the explanation is different: the Mishnah follows Rabbi Yehudah, and the concern applies only when a person has no other occupation. So there shouldn’t be a problem here at all. My problem is that the Rema is silent; he says nothing. Now, the fact that the Rema says nothing still doesn’t prove anything. It’s a little frustrating, but why doesn’t it prove anything? Because the Rema doesn’t have to address it. We’re in the laws of Shabbos now. You, Mr. Beis Yosef, decided to add the phrase “and the same applies on a weekday.” He doesn’t have to respond. When we deal with weekdays in Choshen Mishpat, I’ll state my opinion in two places. He doesn’t have to jump in here. For now, in the laws of Shabbos, I agree with you: in this case it’s forbidden. So I agree with you here. The fact that you extended it to weekdays is another matter. But the Magen Avraham says there’s a problem. After all, whom does the Rema follow in Choshen Mishpat? The Tur and Tosafos. And here the Tur brings this ruling without mentioning any dissent. He doesn’t say, “This follows the Rambam’s view, but we’ve ruled otherwise.” He brings the ruling. So the fact that the Beis Yosef brings the ruling and I remain silent—I can say I

58:17 Speaker 2 In a moment I’ll say what I think, even though it’s still a little difficult. If you’ve seen before that he already raised an objection, he doesn’t have to raise one every time. But here he hasn’t raised one yet. He has an opportunity. Still, I don’t have an explicit Rema, so I can still offer a strained explanation. Here we’re dealing with the laws of Shabbos, so on this point I agree with you. But the Tur, who disagrees with the Rambam all the time, doesn’t say—so the Magen Avraham says in subsection 8: Regarding dice, the Shiltei Giborim, Rabbi Yehoshua Boaz, asked a question about the Tur: “The Tur rules in Choshen Mishpat, section 207, that there is no theft involved in playing dice. But see sections 34 and 370; they imply that there is some prohibition in the matter.” Wow, that’s a bombshell! The Magen Avraham says no, that isn’t a question. Fine, we say there is no rabbinic prohibition of theft here, but there is some prohibition. Look at sections 34 and 370. The truth is, when you look there and see the Tur’s position, you don’t see any prohibition. That is the Rambam’s position. You don’t see a prohibition there. So the Machatzis Hashekel discusses this at great length. He wants to say that in section 34, after the Tur—he cites the Rambam, who says that someone whose only occupation is gambling is disqualified from giving testimony. Why? Because over the years, he is surely eating and living off stolen money. Then the Tur comes and comments: But in my opinion there is another explanation. He gives the explanation I mentioned earlier: the problem is that the person isn’t engaged in productive work. So even if he inherited millions and doesn’t work, and all he does is gamble, it’s still a problem. According to you, there’s no problem. I’m saying that, according to my reasoning, a person who does nothing but gamble, even

1:00:22 Speaker 2 if he doesn’t make a living from it because he already has millions, and isn’t living off stolen money, is still doing something prohibited. So the Machatzis Hashekel says that the Tur didn’t attack him head-on and say, “First of all, what you’re saying is nonsense. He isn’t a thief, so everything you’ve said is nonsense.” He doesn’t say that. So the Machatzis Hashekel says that perhaps this is what the Magen Avraham means. Incidentally, the Alter Rebbe writes several times that the Machatzis Hashekel is the most accurate interpreter of the Magen Avraham. There’s the Levushei Serad, there’s the Pri Megadim, who cites the Magen Avraham. He says that the Machatzis Hashekel, Rabbi Shmuel Kelin, is the most accurate interpreter of the Magen Avraham, that he was his reincarnation—that’s what he brings from books. But still, even though it’s a little difficult to say, the Tur didn’t attack him: “It isn’t theft; I disagree with you.” He just has another explanation. In any case, the Magen Avraham comes along and says that the Shiltei Giborim didn’t ask his question about the Rema. The Rema’s silence about drawing lots on Shabbos for a large portion and a small portion can still, with difficulty, be explained the way I said: “Wait. In Choshen Mishpat I’ll have two opportunities to state my view. Why am I silent here? Because I agree with him. We’re discussing the laws of Shabbos, and I agree there’s a problem with doing this on Shabbos. But on a weekday I’ll state my view.” Ah, the Mechaber wrote “and the same applies on a weekday” in the laws of Shabbos. I don’t have to jump in at that point. But you can’t say that about the Tur, because the Tur contradicts the Rema’s position in all those places. He holds like the Tur and Tosafos, and here the Tur did include “and the same applies on a weekday.” So the Magen Avraham asks his question about the Tur. He cites the Shiltei Giborim’s question about the Tur, but says, fine: it’s true

1:02:19 Speaker 2 that there’s no rabbinic prohibition of theft here, but there is some prohibition. Now you have to understand what that “some prohibition” is. But fine. We don’t have the Alter Rebbe here. What we have is the Tzemach Tzedek, whom I mentioned, in section 45 of Orach Chayim, where the Maharshi [unclear]—at first glance, we think this constitutes a valid transaction, right? Because we hold like Tosafos and the Tur. But we do have the Alter Rebbe in the laws of theft, in Choshen Mishpat—this is section 30. He brings the Rambam’s position: when a Jew gambles with a Jew, it is theft under rabbinic law; with a non-Jew, it isn’t rabbinic theft. After all, stealing from a non-Jew is prohibited by Torah law, and theft by Torah law is prohibited—but this is permitted. Then he says, “And some say”—that first view is the Rambam’s position—“some say that playing with a Jew is like playing with a non-Jew, and there is no theft involved.” The Tur and Tosafos say all of that in response to the Rambam. But there is an opinion that says, as the Rema does, that even with a Jew there is no theft, unless you spend your whole day doing nothing but that. Right? And then he says in parentheses: “Nevertheless, there is a prohibition in the matter, as stated in Orach Chayim, section 322.” But we don’t have the Alter Rebbe’s section 322; that section is missing. Here, though, he says, “as stated in section 322,” and those source references aren’t Rabbi Levin’s—they’re the Alter Rebbe’s. You know how, in the new editions, the text looks distinctive, in bold? That means it’s the Alter Rebbe’s. So the Alter Rebbe says there is a prohibition in the matter. What’s his proof? The Mishnah on page 148 of Shabbos—the Mishnah in the Gemara, right? That’s the proof the Alter Rebbe cites below. Presumably the version we have before us wasn’t the one the Alter Rebbe had. Rather, as with most versions—today, all the printed editions have adopted the less common version. It’s interesting. The version commonly used throughout

1:04:26 Speaker 2 the period of the Rishonim had the reference to dice, which the Gemara mentions on page 149, already in the Mishnah itself. Because otherwise, it’s very difficult to cite just that Mishnah. It’s a Mishnah about Shabbos; “and the same applies on a weekday” appears only in the Gemara on page 149, not in the Mishnah. So how can the Alter Rebbe cite a Mishnah on page 148? Apparently the Alter Rebbe also had a version that mentioned dice in the Mishnah itself, though you won’t find that version in any of the Gemaras we have. In short, I have a problem here. I could have said, fine, I can understand that the Rema would have made his view known, and that this is completely permitted. Incidentally, Rabbi Yom Tov Lipmann, the Tosafos Yom Tov, comments on this law in section 322. There’s the Levush—you know the Levush? The Rema’s student, Rabbi Mordechai Yaffe. And on the Levush there’s the Eliyah Rabbah and the Eliyah Zuta; in the new editions they’ve printed them there. And there’s the Malbushei Yom Tov. The Malbushei Yom Tov is Rabbi Yom Tov Lipmann, the Tosafos Yom Tov. He sees that there’s a problem here because of dice, and says: that’s the Rambam’s position, but see the Rema in Choshen Mishpat, section 207, paragraph 13, and section 370, paragraph 3. And what does it say there? It says that it’s supposedly permitted. In other words, he points out that the Mechaber’s ruling here is not the practical ruling according to the Rema. But—oh!—I have a problem. If I didn’t have the Alter Rebbe here, I could say I’m going with the Malbushei Yom Tov. Presumably, the Rema’s silence proves nothing. As for the Tur, fine, that’s the Magen Avraham’s interpretation; there we’ll follow him specifically. Even though the Alter Rebbe always liked to follow the Magen Avraham, he said that toward the end of his life he had gone too

1:06:17 Speaker 2 far with that. But still, it’s the Magen Avraham. Here, though, I have no choice. Where can I turn? Because the Alter Rebbe says explicitly in the laws of theft, paragraph 31, that even though there is no rabbinic prohibition of theft, “there is a prohibition in the matter.” The Alter Rebbe’s wording here is “there is a prohibition in the matter,” in parentheses, whereas the Magen Avraham says “some prohibition.” We don’t need to turn that into a disagreement. Obviously he doesn’t mean a full-fledged prohibition, but some prohibition. The Alter Rebbe writes it briefly in parentheses; he’s just noting in passing that there is nevertheless a prohibition here. What is the prohibition? You might think: after all, the Rambam, who wrote that it is permitted to gamble with a non-Jew—provided, of course, that the person has another occupation—also wrote that it isn’t proper to occupy oneself with this. Why? Because a person should occupy himself with Torah; why is he going off to play games? Maybe that’s the “some prohibition.” But no. Plainly, all those we’ve mentioned, Tosafos and the others, disagreed with that very Rambam—with his whole approach. Rather, there’s a Ritva in Sanhedrin. There’s also a Maharil somewhere; I looked for it here, but I saw it cited. They say the same thing. The Ritva says that even if you maintain that you aren’t a thief under rabbinic law, there’s still something of a monetary problem here. Why? Because, ultimately, the person gave you money without being fully willing. He was optimistic; he thought he was going to win. Right? There are games of skill, where it depends on his ability, so it’s even easier for a person to imagine, “I’m so good at chess—who could beat me?” Right? And there are games of chance. The Ramban explains this. But there are two things. Never mind. The person was optimistic. What, can you tell him—you’re a prophet? You tell him, “You’re going to lose this

1:08:30 Speaker 2 Your money is in the casino. Is he going to play? Of course not. So he was optimistic. When did he commit his money? When he was optimistic that he would win, as Rashi said on page 21. So even if you don’t hold that way, Rav Sheshes did not accept the Rambam’s approach. Apart from the Ran’s explanation and so on—I’m not getting into that—but he did not accept it. Still, the Ritva says that even according to the view that this is not considered theft by rabbinic law, there is a third level: it isn’t right to take money from someone who gives it unwillingly. That is what the Magen Avraham means: there is some degree of prohibition. The Taz, too, discusses these three levels at length in Choshen Mishpat, section 34. So there is one level, theft prohibited by Torah law: I come along when a person isn’t looking and take money from his pocket without permission. That is forbidden even if the person is a non-Jew. Or I come with a weapon—as a robber or a thief. That is a Torah prohibition. Then there is a case where he gave me money willingly. He said that if he lost, he would give the money, and he gave it to me because he lost. According to one approach, that is theft by rabbinic law; according to another approach... Even if it isn’t theft by rabbinic law, there is still some degree of prohibition in taking money from a person who gives it to you unwillingly because he lost. You didn’t sell him an item; all you did was win, without giving him anything in return—as the Rema puts it, you got it for nothing. And the Alter Rebbe essentially accepts this. So now we have a big problem. According to the Shulchan Aruch’s author and Sephardic practice, you want to gamble—even if you have a job and earn an excellent living from it, but now you’re on vacation. You’re in Eilat. There are lots of French people in Eilat now, playing there, so let’s play poker for money. They bring lots of euros there. Fine,

1:10:30 Speaker 2 you have to make sure the money isn’t stolen, but that’s another matter. You come with money and play. If you’re Sephardic, it’s forbidden: theft by rabbinic law. The Shulchan Aruch’s author says so explicitly here, even in the laws of Shabbos, and they say it applies during the week as well. An absolute prohibition. There is no allowance for it. Are you Ashkenazic? Then it’s all right? Some authorities, such as the Oneg Yom Tov, say it is. But the Alter Rebbe and the Magen Avraham say explicitly that there is a prohibition involved. It isn’t theft by rabbinic law; if it were, the acquisition would not be valid. That is why the Alter Rebbe notes in Orach Chaim, section 448, that there is a valid acquisition when he sells the house and everything in it, even though the non-Jew does not know exactly how much chametz it contains. The Rambam said in the laws of sales, chapter 21, that this is forbidden because of gambling. Still, there is a prohibition involved. It isn’t theft; there is a valid acquisition. But it isn’t right. So you could ostensibly say, fine, he means a minor prohibition. It isn’t so severe. You might think someone who plays is a little [unclear]. But the plain meaning of the Alter Rebbe and the Magen Avraham is that you cannot play. And think about it: in the case of the large portion of food with your children, what sort of gambling is really involved? It all belongs to the father. He is the one giving it out. If he were simply handing it out, he could decide that you get a large portion, you get a small one, and you don’t get that portion. Yet because there is a chance that a particular portion might go to someone, it is forbidden even during the week. So clearly, it just isn’t fitting to gamble. It would not be right to say that this is simply a Sephardic-Ashkenazic disagreement. There is a problem here. But now, with gambling, either I win or you win. What happens, say, with the lottery? The lottery is a little different. Even if I don’t change

1:12:30 Speaker 2 anything—the lottery, horse racing, as the Rambam writes—[unclear].

1:12:37 Speaker 9 I didn’t understand why the Rebbe includes that earlier as well. There is a huge difference between the lottery and all the games.

1:12:42 Speaker 2 Oh, oh, good, good, excellent.

1:12:44 Speaker 9 There are statistics in soccer and in horse racing too.

1:12:48 Speaker 2 Good.

1:12:48 Speaker 9 There’s a horse that will never win.

1:12:49 Speaker 2 You’d be surprised.

1:12:50 Speaker 9 The lottery is...

1:12:50 Speaker 2 That’s an excellent question. That is exactly what has puzzled me to this day. But what puzzles me is much more than what puzzles you, because you haven’t heard all the arguments yet. There is a very well-known responsum in Yabia Omer, volume 7, Choshen Mishpat, section 6. As is his way, he discusses the subject at tremendous length, with many, many very interesting sources. He cites books you might not even know existed. [Unclear], and to his credit. But what does he say? He says that the lottery is the very same case discussed in this sugya. It is the same thing, and therefore, according to his approach, a Sephardic Jew is clearly forbidden to play the lottery. An Ashkenazic Jew too, according to what we said from the Magen Avraham. Now let’s look into this more deeply. This last part is the most important. Of course, I’m saying that our Rebbes of blessed memory also played the lottery; that has been documented, and that’s all fine, with shluchim and so on—but they played. Let’s set that aside, though. We need to know what the halachah says. A rabbi must rule according to halachah, not according to rumors or anything else. Okay, so what is his argument? It’s this: you play, and if you win money, do you know how many people have lost theirs? And you are involving everyone in this game. Here in Israel, perhaps a million people put in twenty shekels, thirty, fifty, a hundred, and you take all their money. “Oh no, we lost again.” It’s upsetting all over again. And for some people it isn’t just twenty shekels. Some are a little addicted. They buy tickets, sometimes even a year in advance, buying lots of them ahead of time. They invest two hundred shekels a month. I

1:14:57 Speaker 2 promise you that if they gave it to men learning in kollel, it would make them much richer, and that’s certain. But fine, let’s say...

1:15:06 Speaker 9 That in Israel, the lottery also works...

1:15:07 Speaker 2 Oh. So wait, that’s one point.

1:15:10 Speaker 9 They assume so.

1:15:11 Speaker 2 First, as to the reasoning, you are making one argument. You’re saying there’s an enormous difference here. First, statistically, unless you’re mentally unwell, your chance of winning is almost in the realm of a miracle, right? Losing is almost certain. So it isn’t like what Rashi says. First of all, Rashi is the first to discuss this and explain the Oral Torah, the Gemara. He says the person thought he would win. Now, obviously, there is always some hope. Some people have so much hope that they see the thirty-million prize and start arguing at home: “I’m buying this one a house, and that one a house.” “No, don’t buy him a house like that!” They’re already arguing about it. Some people get carried away with their fantasies.

1:15:57 Speaker 9 The government takes its cut, doesn’t it?

1:15:59 Speaker 2 Yes. By the way, I once read a book—or maybe it was an article, not a book. A long article saying that most of these people’s lives were ruined.

1:16:10 Speaker 9 Yes.

1:16:10 Speaker 2 Because your friends, your relatives—even if you give your brother a hundred thousand dollars toward an apartment, he’ll say, “He won thirty million dollars, and he only gave me a hundred thousand?” And then he stops speaking to you.

1:16:23 Speaker 9 Yes, and he gave this one such-and-such, but not that one, and he gave that one something else.

1:16:25 Speaker 2 Exactly. You become a little distant from friends, and one person wants money and you don’t give it to him. You stop working. You go to hotels, buy things, and afterward you don’t know how to go back to work, and so on. A person can lose his mind. So that’s why winning the lottery isn’t necessarily a good thing.

1:16:39 Speaker 9 Ninety-five percent simply give up.

1:16:42 Speaker 2 Of course.

1:16:42 Speaker 9 There are statistics on that.

1:16:47 Speaker 2 So...

1:16:47 Speaker 9 Does it make a difference whether it’s in Israel or abroad?

1:16:48 Speaker 2 Huh?

1:16:49 Speaker 9 Does it make a difference whether it’s in Israel or abroad?

1:16:51 Speaker 2 So regarding that—still, in Israel you have a great deal of money from Jews who play as well. But let’s say the overwhelming majority of players are non-Jews; that makes the prohibition a little easier to deal with. But what are the arguments? One argument is that here you’re almost certain to lose. Winning would take a miracle. So you can’t say, “I lost the money without really agreeing to it.” Here you’ve practically made peace with losing it. You tell yourself, “Maybe I’ll have a miracle.” That’s one argument, but it isn’t the main reasoning. There’s another argument: When you gamble with someone for a hundred thousand dollars, or a thousand dollars, that’s still a substantial sum. Here you’ve played for a hundred shekels, fifty shekels, twenty shekels. If you win, it’s millions. The potential gain is so great that you’re willing to take the chance. What do I care if I lose twenty shekels when I have a chance to win millions? So it’s much more voluntary. But that isn’t my main argument, because these are all lines of reasoning. You can say, “Fine, but who says that’s the right way to look at it?” Rather, there’s a Gemara here, a case in Bava Metzia, page 48. I’m really finishing up with this. Page 48 has the well-known discussion about silver acquiring gold, and all the related questions. There’s a case in the laws of sales. It’s in chapter 11 of the Rambam. He presents it like this: A person says he wants to buy someone’s land. “I want to buy your land. I need to bring you a million shekels, but I have to arrange it. I need to go to the bank.” So he says:

1:18:45 Speaker 2 “Listen, I have my grandfather’s watch, a Rolex. You know those watches—the older they get, the more expensive they become. Have you heard about that? It’s incredible. I hear about people investing in them. They only make a limited number. So you buy a Rolex for five thousand dollars thirty years ago, and now it’s worth a hundred thousand dollars or more. Anyway, the person takes his very expensive watch and says, ‘Listen, if I don’t come back with the bank’s money by the deadline, here’s the pledge. It stays with you. It’s a deposit; it’s yours. Here’s thirty thousand dollars.’ ‘Fine, I’m willing to wait. At worst, I’ll sell it to someone else and make thirty thousand dollars.’” Now, isn’t that an asmachta, which does not effect a transfer? The Gemara rejects that and says: No, it’s not the same thing. That’s why the Rambam, who has repeatedly said that an asmachta does not effect a transfer and compared it to gambling, rules differently here. The money didn’t arrive? The man had been sure it would. The banker told him, “Just bring your pay stub; bring this and that.” He was sure he could get it. A person isn’t out of his mind, giving away a thirty-thousand-dollar watch. It’s like the case of the deposit we mentioned. But there they said it does not effect a transfer, in Bava Metzia, page 104. Here, though, the Rambam rules according to the Gemara on page 48 and says it’s valid. Why? There’s a difference. In gambling, I haven’t yet put the money on the table. Sometimes you do put the money on the table. The Rishonim also mention this idea of placing it on a shelf; sometimes money placed on the shelf is already lost, but sometimes it isn’t—you’ve only made a commitment. “If I lose, I’ll give you a thousand dollars,” but the thousand

1:20:37 Speaker 2 dollars are still in my pocket or at home. With a pledge, though, I’ve already handed it over into his possession. So the whole argument we discussed—that an asmachta does not effect a transfer—is because, when I committed to pay, I thought I would win. But by the time I actually pay, I already know I’ve lost. Here, while I still think I’ll arrive on time, I’ve already transferred the money to you. I’ve already placed it in your possession. If it’s already in your possession, you can’t say that the transfer didn’t take effect, because I handed it over at the very moment I was optimistic. By contrast, with gambling, I transfer the money to you only afterward, once I’ve lost. That is also brought in the Rambam. Ah, but Rabbi Ovadia knows this. Of course Rabbi Ovadia knows it.

1:21:31 Speaker 10 That’s already a memorandum of agreement.

1:21:32 Speaker 2 But there’s another ruling. Remember I said that Rashi, explaining Rav Sheshes, brought two proofs against Rami bar Chama, and I only gave you the cases in Bava Metzia 73 and Bava Metzia 104? I didn’t give you the other proof, from Bava Basra, page 168. It starts on page 167, but on page 168 the Gemara presents a case like this: I, Reuven, lent Shimon ten thousand dollars. All right, I have a loan document. I, the lender, hold the document he signed, saying that he borrowed ten thousand dollars from me until, say, 13 Nissan. On 13 Nissan I come to him: “Give me the money.” “Sorry, I only have two thousand dollars.” He gives me two thousand dollars. “Where are the other eight thousand? I want the eight thousand now. I gave you ten, and this document says ten. You’ve only given me two.” “You know what?” Shimon says to me. “Let’s go to your neighbor and make an arrangement.” Because if I’ve paid two thousand dollars but leave him holding a document for ten thousand, that’s dangerous. He could come to me one day and say, “I have a document. Give me ten thousand dollars.” “I’ve already given you two thousand, so give me the document.” “How can I give you the document? You’ve only paid me two thousand. It covers the whole loan.” Then he can say, “Listen, let’s draw up a new document for eight thousand dollars.” “I don’t agree. You were supposed to pay me today. I don’t agree.” “So let’s make a deal. We’ll go to our neighbor, to Levi. Levi, here’s what we’ll do. Take the loan document and hold it as a third party. Keep

1:23:31 Speaker 2 the document. If I haven’t paid him by 28 Nissan, give him the document. That’s the deal, and then you can demand the full ten thousand dollars from me.” The man agrees. The deadline arrives, says the Gemara, and he doesn’t have the money. The Gemara says the third party cannot give the lender the document. An asmachta does not effect a transfer. He was sure he would manage to pay, but he didn’t. So he didn’t agree to this wholeheartedly; he did it under pressure. He was certain he would manage, and he didn’t. Therefore, an asmachta does not effect a transfer. This is the ruling in Shulchan Aruch, Choshen Mishpat, section 55. The Alter Rebbe brings it in the Laws of Testimony, paragraph 41. Earlier, it was paragraph 34 in the Laws of Theft; there it’s paragraph 41. It’s an explicit Gemara. Rabbi Ovadia says he checked what happens to the money. People gave their money to Mifal HaPayis, the lottery operator. Under the law, the money doesn’t belong to Mifal HaPayis; it belongs to the state. There’s another body responsible for the money. Eventually, if things don’t work out, the state can take the money, but in the meantime a third party is appointed to hold it. They are only a third party. So he says: If you want to compare this to chapter 11 of the Laws of Sales, which I mentioned earlier, and to Bava Metzia, page 48—where it’s like a deposit because I’ve already handed over the money—there I handed the money to the other person. Here the money has not actually gone toward the winner at all; it’s being held by a third party. But that’s his argument. It’s a very difficult argument. The reason is very simple. What’s the point here? The point is the transfer of the money out of my possession. That’s the crucial moment. The crucial moment is when I transfer

1:25:48 Speaker 2 The money—I transferred it without wanting to. I committed to paying when I thought I would win, but I’m handing it over later, when I know I’ve lost. That transfer isn’t wholehearted, and that’s the whole problem. Particularly according to the Alter Rebbe’s view, the prohibition here is taking something that wasn’t given wholeheartedly. The Radbaz says this. He says that even if it isn’t considered theft by rabbinic law, it still isn’t right. You’ve taken something from him against his... But if the money has already changed hands, then even if a person left his Rolex—his thirty-million-dollar watch—and they said that’s acceptable even according to the Rambam, fine. When I handed it over, though, I did so wholeheartedly, because at that moment I was optimistic. That was the moment of the transfer. What difference does it make now where the money is? Anyone who plays the lottery and hands over thirty thousand shekels—the money has left his possession to enter the competition. If he doesn’t win, it will never come back. What happens when you give it to a third party? What difference does the third party make? This isn’t just some clever line; it’s a third person. There’s reasoning behind it. You say, listen, this person—I’m sure... After all, the money wasn’t given to him. It belongs to someone else altogether. That’s just... But I know, I’m so optimistic that this money will come back to me, because I’ll bring it to him and buy the thing and get the—get the watch back. But here, with the lottery or races or things like that, you—I’m not involved in that at all. It belongs to the lottery company, to the state, to the winner. What do I know? Does anyone imagine that his money hasn’t left his possession? The moment it left was the moment I could see it—my eyes started spinning. I saw eighty

1:27:46 Speaker 2 thousand dollars in profit. I’m already thinking about my yacht and all that. Then I handed over the money. It left at that moment wholeheartedly, and it will never come back to me. So what do I care now? There could be a sixth party, a fourth party, a thousandth party. That’s the proof. After all, the Alter Rebbe forbids gambling. There is a prohibition involved, he says explicitly, like the Magen Avraham. Our Rebbeim played the lottery. We have accounts of people who went and bought tickets. And not only that—he sometimes told people to play the lottery. You know the letters? Yes, there are letters: play the lottery. Yes, but not compulsively. So let’s sum things up. Playing the lottery certainly involves no prohibition, even for Sephardim, even according to the Mechaber. Gambling with other people—checkers, chess, whatever—is forbidden. According to the Sephardic view, it’s forbidden, outright theft by rabbinic law. According to our view, there is a prohibition involved, a measure of prohibition. There is a prohibition. Horse racing is like the lottery. You handed over fifty shekels. You said number thirty-two would come first, thirty-five would come second, and you lost. But your money had left your possession. When it left, you gave it wholeheartedly. By the time of the win or loss, the money was already in other hands and would never come back. It isn’t like backgammon, where you still hoped to get it from him and say, “Don’t give me the money—give it to me. I’ve already got the mortgage check.”

1:29:28 Speaker 11 But it’s like idol worship because you can... There’s television and there are horses; people watch the horses to make money. We really want the horses. That number is like an idol.

1:29:37 Speaker 2 No, no, no, no, no.

1:29:38 Speaker 11 That too.

1:29:38 Speaker 2 Look at the Rambam. The Rambam saw no problem with it.

1:29:40 Speaker 11 But there is a problem.

1:29:40 Speaker 2 The Rambam spoke about animal races; he spoke about animals fighting. There are many who... Some have tried to raise the issue of cruelty to animals in horse racing. Anyone familiar with it knows that they suffer a great deal. They’re beaten, and they...

1:29:55 Speaker 11 They get injured too.

1:29:56 Speaker 2 A person—it’s a horse, but their hearts... They make them run for a long stretch of time. They really... It’s very hard. They also hit them during the race. It’s no small thing. And sometimes they starve them so they won’t be fat, because every extra kilo adds weight. So people discuss this and so on, especially in light of... There’s a Gemara in Kesubos about Rabbi Yehudah HaNasi and showing mercy to animals and so on. But in principle, strictly speaking in halachah, animals are there for the benefit of human beings: to eat, to wear, or for sport. Using animals. Nobody said, “Oh, those are animals fighting each other,” as the Rambam mentions, and that the problem is theft by rabbinic law. Not cruelty to animals—there is, in fact, a Torah prohibition against cruelty to animals. [unclear] But that isn’t mentioned. The discussion is about theft by rabbinic law. So that isn’t the issue. That’s not the problem here. And as I said at the start of the class—for anyone who wasn’t here, I’ll repeat it—apart from the prohibition against gambling itself, when you actually gamble, yes, in a casino or other places: according to the Beis Yosef it’s outright forbidden, and according to our view there is a prohibition involved, or call it a measure of prohibition. There is a prohibition. It isn’t good. But things like sports betting are permitted even for Sephardim—not according to everyone. Rabbi Ovadia forbids it. People write online that Rabbi Ovadia changed his mind.

1:31:30 Speaker 3 He changed his mind.

1:31:31 Speaker 2 Yes, there are two rabbis here who say he changed his mind. There are. But I cited what appears in writing. Yes, there are still rabbis—other Sephardic rabbis—who say it remains forbidden to this day, and who accept that version. I saw online that people say he changed his mind, but according to our view, even to a Sephardi I would say it’s entirely permitted. Now, I just want to return to gambling. Even those who say, “I rule like the Malbushei Yom Tov, and the Rema is lenient as long as a person has an occupation”—there are rabbis who permit it; for an Ashkenazi it’s permitted. That isn’t the position we follow. Or someone might say, “All right, for a Chabad chossid it’s only a measure of prohibition. It isn’t such a serious prohibition.” I simply—I’m also a rabbi, and I can testify: I’ve been young and I’m not yet old, but I’ve already seen families utterly destroyed by gambling. Gambling is addictive. So apart from all these prohibitions, it’s a sign of families being destroyed. Sadly, I’ve received hundreds of cases—people calling from all over the world with these stories: “My husband is in this situation, and he’s addicted.” Then, to play again, you borrow money, sometimes even stolen money, from loan sharks, because you’ve lost money and... Then you put yourself at risk, and it simply ruins their lives. Afterward the person isn’t himself. People get divorced, and there are endless stories. So apart from all the prohibitions, it’s addictive and, G-d forbid, takes people to very bad places.