Pension in Halacha - Rabbi Yaakov Chaviv shlita

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

00:09 Speaker 2 Hello and welcome. Today we’re going to discuss pensions—specifically, a pension fund that pays a widow. This is a very sensitive subject. On the one hand, we know of cases where someone worked for an institution, a yeshiva, or as the head of a kollel, and nothing was set aside. In other words, he worked, but no pension contribution was deducted from his salary. Then, Hashem protect us, he passed away, and his widow came and asked for his salary—or at least for something to live on—since her husband had worked at that institution for many years. We need to know that today, Israeli law requires pension contributions. Even someone who is self-employed must put part of his income into a pension fund. Of course, this requirement brings tremendous benefit. Now, what happens, for example, if someone worked for a period of time and his employer did not pay into a pension fund? That is, he did not deduct a contribution from the employee’s salary. Sometimes a person reaches retirement age and discovers that, for a number of years, nothing was deducted from his salary toward his pension. This can be very problematic: when he wants to start receiving his pension, he finds that he has nothing to live on. All the more so when the widow herself comes and says that her husband worked for many years, but his employer never

03:15 Speaker 2 paid into the fund or deducted anything from his salary. When a person has a regular job, pension contributions—whether to a pension fund, what is called a provident fund, or another arrangement—are something the employer is required to make. Part of the salary must be set aside for retirement. In a regular job, this appears automatically on the employee’s payslip. It shows his gross pay and net pay, and also states how much was contributed toward his pension. These contributions accumulate, and when he retires, he receives what is due to him based on what was contributed over the years. In some countries, a person is also allowed to make up missing contributions. If, for example, contributions were not made for a certain period, he can buy what are called “points” toward his pension. But what happens if someone worked for an institution, or even served as the head of a yeshiva? Suppose he received a stipend, like an avreich, or a larger stipend as the head of a kollel, but that did not include a pension contribution. In other words, his employer did not contribute to a pension fund on his behalf. Sadly, the man passed away. His widow comes and says, “Wait—we received a monthly stipend, and now I see that, because my husband did not

06:13 Speaker 2 contribute, and his employer did not contribute either, I should also receive from the institution the pension amount he would have been entitled to had contributions been made to a pension fund.” This very question came before us when the widow of a prominent rosh yeshiva brought a claim against the yeshiva’s director. She argued that, while it was true they may have agreed that her husband would receive a stipend, the arrangement was that he would continue receiving it even past age seventy, past retirement age. In other words, they would pay him that stipend until 120. They had made an arrangement: although no pension contributions were made, the stipend would continue until 120. Sadly, this rosh yeshiva passed away prematurely. His widow, who is relatively young, asks how she is supposed to manage now. Not to mention that some of their children are still unmarried. She is making a claim against the yeshiva, saying that there was an arrangement between them, or that the yeshiva itself undertook to pay his stipend until 120—even if the rosh yeshiva could no longer come to the yeshiva. Nevertheless, the arrangement was that he would receive the stipend. Now, on the one hand, the halacha on this subject is that if an employer, without the employee’s knowledge, did not make the required contributions—meaning he did not provide the portion due

08:57 Speaker 2 to his employee and did not pay into the pension—the employer has caused his employee a loss. Since the law requires pension contributions, and there is an obligation to pay them, just as there are laws governing other employment matters—the law of the country determines these matters—the employer’s failure to do so caused a loss. Even if he told his employee he would make the contributions but did not, the employer must, of course, compensate the employee for his loss and pay what is owed toward the pension. Or, at the very least, if it turns out that for a certain number of months he failed to make contributions to the provident fund or retirement fund, we need to see how much the employee now receives as a pension and how much he would have received had the employer made those contributions. The employer must pay the employee the difference. In other words, this was done in violation of the law. But if, for example, the employee agreed that the contributions would not be made, and this was an arrangement they both accepted, then he cannot come afterward and ask, “Why didn’t you make the contributions?” They had agreed to it. Today, in light of these issues, the law establishes that even if the employee did not contribute, the employer is still obligated to pay pension contributions. This is, of course, a serious matter, and failing to do so is also a violation of the law. Pension contributions must be made, and they must be made even

11:40 Speaker 2 If, for example, a person works and receives a stipend or a salary—even if Torah study is his occupation, whether as a yeshiva student or a married student—then he, too, has to set aside a portion of the stipend he receives, even if he works independently. This definition also comes up in the following question: Suppose there was an agreement between an employee and an employer, and the employee said, “Listen, right now I’m doing this for the good of the institution. I’m genuinely willing to make a sacrifice and give up part of the salary I should be receiving. But when the institution prospers, expands its activities and succeeds, you’ll have to raise my salary and make pension contributions on that higher salary. Then, when I reach retirement age, all those accumulated contributions and salary increases will give me a reasonable pension.” That was their agreement. They also agreed that after he passed retirement age, he would continue working and receive whatever the law provided, as well as a stipend or some additional amount to make up the shortfall. Sadly, the man passed away before any of those arrangements came to fruition. His widow then came and demanded that they honor what had been agreed and provide what is called a pension supplement. After all, he says, there was an agreement between employer and employee, and the employee worked and did all

14:18 Speaker 2 his work so that the institution would prosper, grow and succeed. Once the institution had succeeded, their agreement was that his employer would raise his salary and make pension contributions, and so on. Then, when the time came for him to retire, he would receive what was due to him. Now the widow says: It’s true that they made that arrangement, but the arrangement went further. Even when he reached retirement age, they would give him a stipend to supplement the pension he was supposed to receive. The poskim discussed this question. In Tzitz Eliezer, he says that he could not find clear halachic sources concerning pension payments. So we need to examine the matter of pensions and see why it was not discussed much by the poskim. As we’ll see, the only positions that could be described this way were funded through a levy imposed on the public—a communal obligation toward certain officeholders. One was the melamed, the teacher. Even after he could no longer teach, they would still give him a salary or living allowance for the rest of his life. There are even discussions among the poskim about this, as the Chasam Sofer cites. He also cites the Maharsha and several other poskim regarding the definition of a successor. Usually, someone would come to assist the melamed, and once the melamed reached an age when teaching became difficult for him, that person would take over. But they would still pay the melamed’s salary.

16:58 Speaker 2 We find this with a shochet as well. These were obligations placed on the public, on the community, and the same applied to a shliach tzibbur. As we mentioned, the poskim also discuss these positions; Pischei Teshuvah mentions them too. They could even pass by inheritance. There are discussions among the poskim about a shochet’s position: if he has a son qualified for it, the son continues in the role. In some cases, they would arrange with the son that if his father passed away, part of the salary paid to him would go to the widow, his mother, if she was still alive. But Tzitz Eliezer—Rabbi Waldenberg—writes that he found it difficult to locate conclusive sources that actually discuss these matters. So how should we treat an institution? Is an institution like a community, with obligations borne by the public because the institution is part of the community? And if so, is providing this payment one of those obligations? Is the payment required as tzedakah, by custom, or under the principle of “doing what is right and good”? Under that principle, custom can even go beyond the strict letter of the law. Can that custom be enforced, obligating the institution to give the widow the portion, or even the pension, due to her? As we said, this appears in the Mishnah in Bava Metzia, chapter 7, Mishnah 1, concerning the obligations owed to

19:05 Speaker 2 workers. When a person hires a worker, the Mishnah says that he can be compelled to provide food for the worker even if they did not stipulate it before the work began. He is obligated because that is the custom: to give the worker food before he goes out to work. We find this in the Tosefta, Bava Basra, chapter 4, halachah 8, and in the Yerushalmi on Bava Metzia, which states that custom overrides the halachah. Since the custom is to feed workers before they go out to work, the employer must do so. He cannot say, “But we never agreed that I had to feed you.” Since it is the local, accepted custom, that is what we do. This is also brought in the halachah in Choshen Mishpat, siman 201. We need to examine whether this custom has the status of an accepted practice governing workers, with obligations that apply even when they were not explicitly stated. Some describe this as a kinyan situmta. What is a kinyan situmta? Situmta means a seal: the merchants’ sealing mark placed on merchandise. It could be a mark made by the merchant on barrels of wine for the buyer. In halachah, a kinyan—an act of acquisition—generally has to be performed through a physical act, such as acquisition through one’s premises or by pulling an item toward oneself. But this act of situmta is, in effect, treated as something

21:28 Speaker 2 One that involves no physical act of acquisition. Based on this, the concept of kinyan situmta teaches us a great many halachos: even where no act was performed by hand, no formal kinyan was made, and nothing was done that visibly demonstrates acquisition, kinyan situmta still takes effect. It has the force of having performed meshichah, or a kinyan sudar—an actual act of acquisition. The halachic authorities apply kinyan situmta to many practical questions. I discussed, for example, a person who buys an aliyah. The gabbai auctions off the aliyos, but the auction takes place on Shabbos or Yom Tov, so it is conducted through speech: someone raises his hand and says, “Fifty, a hundred, a hundred and fifty,” and so on. The authorities discuss how to understand this, and it has practical implications in many areas of halachah. When a person buys an aliyah, is it a vow, an oath, or an acquisition? One practical difference is whether he can sell the aliyah he bought to someone else. Can he say, “Listen, do you want this aliyah? I bought it for a hundred shekels; pay me two hundred”? Who gets the extra hundred shekels—the person who bought the aliyah, or the gabbai? That depends on whether this is a vow or a pledge to donate. But if we say it is an acquisition, how can we define it as such? After all, it is something that was not done through a physical act,

23:30 Speaker 2 but through speech. And there is another issue: it is something that has not yet come into being. The Torah reading has not yet taken place, and they are selling the aliyah beforehand. We know there are questions about whether something like that can be acquired. The point of situmta is that it can apply even to things that have not yet come into being, or to something done through speech, without a physical act—without lifting the item or performing meshichah. Nevertheless, it can be acquired. When the Rif and the Rosh define situmta in their discussion of the Gemara there, they explain why it has the status of a kinyan: because the parties have reached a firm decision. They hold that this firm decision is enough. Accordingly, the halachah recognizes kinyan situmta as having the full force of an acquisition. This is the basis for the discussion of the custom established by the Sages: the customary practice of merchants has legal force through kinyan situmta. It is not merely a custom; it is something that takes effect. Even if the parties did not discuss or stipulate it between themselves, it still has force. Now, why does custom matter here? Think of a purchase made online. The item has not yet arrived at the buyer’s home, so how can he say, “I bought it”? It is through kinyan situmta. As we know, with the other forms of kinyan, one cannot acquire something that has not yet come into being, something that has not yet arrived. For that, there needs

25:37 Speaker 2 to be a situation where, at the time of the acquisition, the item is already there and the person is going to receive it, as in the case of someone exchanging a cow for a donkey. A person who wants to buy an animal, land, or movable property acquires the item and receives it. He walks into a store, pays, and receives the item. Here, though, it is something that will arrive later. Various things could happen in the meantime that might cancel either the purchase or the sale. So we have to say that an ordinary kinyan would not work, but kinyan situmta would. Another example is a person who undertakes an obligation in a contract, or even signs a memorandum of understanding. These are agreements we make between ourselves, but they do not yet involve an act of acquisition. They, too, take effect through kinyan situmta. Or consider using a credit card. A person is going to pay with the card, and many people have asked me whether they can perform the custom of kapparos, or make a payment, by credit card. I gave the example of the mitzvah of matanos la’evyonim, where the payment must be made that very day. Can a person fulfill the mitzvah by making a bank transfer? The rabbis and later halachic authorities have discussed this. One must still be sure that the money will arrive. So even though he has not physically handed over the money, it is in the account, and the people carrying out the mitzvah on his behalf—the shluchim working for the fund—will distribute the money available to them, including the amount he gave that day.

27:32 Speaker 2 The halachic authorities discussed this question of customary practice and also saw it as deriving its force from situmta: it is an accepted way of doing things. In the book Masa Melech, by Rabbi Yosef ben Ezra, a prominent dayan in Salonika and a student of the Maharshdam, he wrote about taxes and customs in commercial matters. He discusses employment terms, including unemployment pay, sick pay, and other arrangements. Of course, as the halachah in the Shulchan Aruch states, a person cannot simply hire someone and say, “Do the work, and I’ll pay you afterward.” He needs to agree in advance on how much he will pay. Likewise, a worker cannot do a job and then, afterward, demand an excessive amount. On this subject, the Masa Melech, Rabbi Yosef ben Ezra, wrote about all these employment terms, including the amounts a person had to set aside. In his time there was a fund that people used—something like what we call a pension fund today. He discusses how this money was also deposited in the community fund and used for various other purposes, while a person could, at some point, receive his money. It was something like what we call a gemach fund today. And on this subject

29:47 Speaker 2 he wrote the overarching rule for all employment matters: everything follows the custom of the country. In other words, in Salonika, they followed the local custom. What does “the custom of the country” mean? It means the practice established in that country—in the Land of Israel, for example. Of course, this concerns Jews. The halachic authorities debate whether the principle that “the law of the land is the law” applies in the Land of Israel as well. We know that we have not yet reached the point of “Restore our judges as at first and our advisers as in the beginning”—the restoration of halachic rulings as the basis of the legal system. That would be Jewish law, which today has been implemented only to some extent. I spoke with our friend Rabbi Rakover, who is involved in Jewish law, and also with Dr. Michael Vigoda. They want to renew it, as does our esteemed friend Rabbi Arusi, Rabbi Shneur Arusi, who is among those reviving Jewish law and promoting the subject: how important it is that the legal system here in the Land of Israel follow the rules of halachah. But let’s also look at countries such as America, France, England, and elsewhere. We follow the custom of the country. What does that mean? It governs what an employee is customarily given. Of course, an employer also has rights. A person cannot simply sue his employer for no reason and demand more than he is entitled to. There are rules about what must be given to an employee, what must be set aside, and what he must be paid for his work. And, of course, within that there is what

32:01 Speaker 2 What is called the minimum wage. The minimum wage. That means a person cannot say to someone, “I’ll employ you and ask you to do such-and-such work,” while paying less than that. Beyond this, the Shulchan Aruch rules—and the Sma brings this as halachah, as do the other poskim who discuss it, the Ketzos and the Nesivos—that even if a person agrees and says, “I’m willing to work for such-and-such a meager salary,” we regard it as a wrongful act on the employer’s part. He cannot even say, “But the worker agreed! He agreed!” Why did he agree? Because he has no job. He agreed because he needs to provide for his family. Therefore, as the Mishneh Lamelech explains, there is a framework: we establish rules, and everything follows the custom of the country. Whatever must be paid per hour—the minimum wage—must be paid to him, including all the benefits that come with it. Now, what is the force of the custom we are discussing? The Rambam and the Rashba say that the force of custom is that we rule according to the understanding of the place and its custom. The assumption is that every agreement in any transaction is made in accordance with the local custom. For example, he discusses the law of wedding attendants and how much one must give. Everything follows local custom. As we mentioned, according to the Rashba, this is essentially the law of situmta that we defined. The Tashbetz writes the same thing. He explains that the custom among partners for dividing profits also follows the custom of the country, the local custom. Rabbeinu Tam, the Ramban, and the Rif say: Wait—not every custom we accept is called the custom of the country. It must be

34:22 Speaker 2 a custom adopted by the community. He says this has been discussed; these matters have already been addressed. On the basis of this idea of a communal enactment, many want to apply it to what is called today a labor court. In many countries, the people sitting there are not even judges. They are community representatives—people who hear the case. They bring in managers or others with knowledge and understanding, and they follow accepted practice. So it must be an enactment accepted by the community. He also includes, for example, what is called the additional kesubah payment. What is that? A kesubah is the obligation a man undertakes toward his wife. There is, of course, the basic kesubah, the dowry, and the additional payment. What is the additional payment? It is what he gives her beyond the amount the Sages established. The Sages said that the basic kesubah must be given: two hundred zuz for an unmarried woman—uh, for a virgin—and if she is divorced, widowed, or not a virgin, she receives one hundred. Of course, there is a dispute between the Shulchan Aruch and the Rema as to whether this is calculated in ordinary currency or in Torah-standard silver. We will not go into that subject, but in principle we give an amount based on the corresponding value. Here, of course, we are talking about an Ashkenazi kesubah: 960 grams of pure silver. Again, the reason for this payment is that the Sages were concerned that it might be too easy for a man to divorce his wife. They therefore sought to protect her interests by setting aside money to support her for a year if, G-d forbid, her husband passes away or, G-d forbid, they divorce. In that situation, she

36:47 Speaker 2 will have something to live on. In addition, they established an additional payment—another amount. In the [unclear] kesubah, the additional payment is one hundred zekuk of silver; for a virgin, it is fifty zekuk. That, too, is an amount of silver, a weight of silver. So we see that the additional payment is also included in the custom of the country, as Rabbi Yonasan and the Ramban explain. The Or Zarua holds that not every custom is accepted as the custom of the country; it must also have the approval of the Sages. In other words, it cannot be a custom that contradicts halachah. The Or Zarua thus disagrees with the other Rishonim, who say that a custom can even override halachah. He says no, it must also meet that condition. But as we will see, this concerns any accepted custom. What does it mean for a custom to override halachah? After all, these matters fall under what is called dina d’malchusa, so we would follow that. Nevertheless, if we have an established halachah that says otherwise, the custom obviously cannot go against it. In this connection, they also defined a custom that does not follow the usual halachah as a long-established custom. In a sense, it is an accepted custom. Now, the Rivash says that in matters governed by merchants’ custom, we follow that custom. That is how the halachah was established and how we rule. He distinguishes between a custom that contradicts an explicit enactment and a custom concerning something left to people’s discretion. Of course, this applies to many matters connected with labor law, as we mentioned regarding the custom for workers, and also to everything concerning contracts and arrangements. Beyond that, even

39:14 Speaker 2 if there is a dispute between people—between a landlord and a tenant—we follow the custom of the country there as well. Rabbi Moshe Sternbuch, and many other rabbis, including Rabbi Mordechai Eliyahu, z"l, discuss severance pay for a worker and rule that it follows the custom of the country. In other words, with respect to labor law, the poskim accepted without hesitation the custom established by law. We follow the custom. If the custom in a country is to pay a certain amount of severance, that is what the worker receives. So if someone has to come before a beis din, the beis din asks, “Wait, what exactly is the issue?” They record the details, examine the matter, determine what it is customary to pay in that country, and award payment accordingly. The same applies if the custom of the country is that an employer is obligated to contribute to a pension fund, as has been established in each country. We follow the custom of that country. If the country requires the employer to contribute in every case, that applies even if the employer and employee have made an agreement between themselves. Since the country requires it—and in some countries, failing to do so is even a criminal offense—if he did not contribute, despite their agreement, he will be liable to pay the worker what the worker would have received had he contributed to the pension fund. That is, of course, for the period in which he should have contributed, based on the work the employee did, his salary, and so on. Now, this custom must be a proper custom, not an improper one. We define that according to local custom. Local custom is decisive. For example, if the practice is to pay only if the person makes contributions, and there is

41:48 Speaker 2 an arrangement between them in which, for example, the worker says, “Listen, pay me such-and-such an amount”—all these enactments and local practices were put in place precisely to prevent situations like this. Unfortunately, it happens often, and many people think, “We’ll work off the books,” or “We’ll receive part of the salary off the books.” The very term “off the books” points to a serious problem. A person cannot then come and make a claim. If, G-d forbid, even the slightest thing happens to him, he cannot receive compensation. If, G-d forbid, he becomes ill, he cannot receive anything. And if, for example, there is an epidemic or something similar, a person for whom no contributions were made receives nothing from them. He receives benefits according to the work that was reported. That is why they established that this is an extremely serious matter. A person must receive these benefits even if he is self-employed. A law that came into effect not long ago requires every self-employed person to contribute to some kind of fund, a pension fund, in all circumstances. This includes many things, such as death coverage, G-d forbid—life insurance. If, G-d forbid, the worst happens to a person, the fund provides payment. If a person becomes ill and cannot return to work, that too is covered. That is why they recognized how serious this is and required people to make contributions. Along with this, of course, there is VAT, income tax, and all these things. A person must take care of them and work in an orderly, aboveboard way. He should not think he gains by failing to report his income, or that he somehow gains by working

43:49 Speaker 2 [unclear] even the smallest thing that could happen. There will be losses. [unclear] The losses will be so great that the person himself will see how much it is not worth it for him. That is why they established it according to local custom, according to the custom of the country, and that is what we follow. Another question connected to this subject: if we go by custom, do we say here that “the law of the land is law,” or not? In other words, do we follow the law as established in the place where we are? We said that monetary matters are determined according to the custom of the country. So what does “the law of the land is law” mean in this context? Mahari Ben Lev discusses this in Part Three; he was one of the great later halachic authorities. He writes that when we apply the principle that the law of the land is law, it is when the law arises from what is accepted in that place. In other words, there is the principle, “Go out and see what the people do.” Go out and ask: what do people say? We know very well that some things are determined by the reality on the ground, not by what a person decided, using his own reasoning, ought to be so. The local reality determines it. Take, for example, an employee and an employer. Some things are set out in a code of laws, which takes account of the need to prevent someone from overworking or exploiting the person he hired. So there are rules. A person has to know that he cannot simply do whatever he pleases. And a person cannot make excessive demands and ask for whatever he pleases, either. There are rules. Today there are all kinds of, uh,

46:08 Speaker 2 uh, all kinds of arrangements that people make. For example, there is a consumer organization, or an organization for purchasers, that gives someone the option of reversing a purchase. Or if he sees that there is a problem with an item, he may be allowed to return it within fourteen days. There are all kinds of provisions established by the state, taking into account the situation of consumers and sellers. With all these distinctions, there is a principle: we would not classify this as going to secular courts. What does that mean? What is the difference between secular courts and what we call “the law of the land is law”? There is, for example, what is called a labor court, or a particular organization whose purpose is to do everything it can to prevent consumers from being exploited. What is the difference between these things? A secular court is where a judge or another person decides something based on his own understanding. There may be a basis for it or there may not, but that is what he decides. We also often see laws that do not quite make sense according to a straightforward understanding. Let’s give an example. Say we know something explicitly and the evidence has been presented, but because of some small procedural mistake—say, the information was not passed on in time, or it came from a source that, under the law, cannot be used, such as a wiretap—even though the things were heard, the evidence cannot be used. Or the information was not passed on to the other side in time, or a certain period has passed and we say that the matter

48:42 Speaker 2 is now subject to a statute of limitations. All these things are laws that were established, and that is what we call secular courts. Mahari Ben Lev writes that the custom of the country, by contrast, develops from what people actually do—from the practice of merchants, as it is called. They reached certain conclusions on that basis, and so those practices may be followed. The Shevus Yaakov likewise writes about hiring employees. He was asked about following civil law rather than Jewish law, and he writes: “Whenever they wish to adjudicate, they must go to advocates who know their laws. More often than not, these advocates do not agree with one another; each speaks according to his own assessment. How can one rely on them? But Heaven forbid that we should follow their ways.” What is the Shevus Yaakov saying? If there are various judges, one ruling this way and another that way, each according to his own understanding, with a majority opinion and a minority opinion—that is not like the majority and minority opinions in a beis din. In a beis din, both opinions are grounded in established halachah. The judges are trying to bring together the halachah and the rulings of the halachic authorities, comparing one case to another. Or they determine that the situation is more like a particular ruling. Either way, it is based on halachah. Here, each person thinks and sees things in his own way; these are their opinions. We said no to that kind of situation. But if the point is not really to have judges decide—not to base it on a judge’s discretion or worldview—but to obtain an expert opinion on how to interpret the facts, that is how the gaon

50:58 Speaker 2 Ben Ish Moshe [unclear] defines it. He says: what does it mean to explain something? It means to define something grounded in established custom, and explain it on that basis. So, as we have explained, one can indeed turn to a beis din. The beis din will hear both sides, the employee and the employer, examine the matter, and see what the custom of the country is. What do we determine this way? Matters such as pensions, unemployment benefits, sick pay, and all these provisions. Or say someone received a dismissal letter at some point with no prior notice, and the employer is unwilling to pay him for it; or the employer made a decision without the facts. In such cases, the beis din will, of course, rule according to the custom of the country. Here we say that the law of the land is law, and this is not considered going to secular courts. That is because these provisions were not made according to a judge’s personal understanding. When they were established, they reflected the realities of a situation: a person does a certain kind of work under certain conditions. So we cannot describe this as “a judge decided such-and-such.” These are fixed provisions. They are in the law, such as how much must be paid as a minimum wage, how many hours a person may be employed, and which hours those are. There may be a difference between morning and night hours, and all kinds of other considerations. Under these rules, someone working as a guard during the morning is not the same as someone working as a guard at night. Nor is someone doing physical labor the same as someone doing another kind of work,

53:12 Speaker 2 and it all follows the custom of the country. Of course, someone working in a place where there is a risk is not the same as someone working where there is no risk. All these things follow the custom of the country, and that is where we say that the law of the land is law. As we have defined it—and as I found when I searched the writings of the halachic authorities—the gaon, the Tzitz Eliezer, wrote that he had difficulty finding a clear halachic ruling on this subject. So I began looking into what the situation was then. That is why we do not find much about this in the writings of the Rishonim, and the subject is not mentioned very much by the later halachic authorities either. The situation has changed. It is different today from what it was then. Today we have what is called an institution, an established organizational structure: a government body, a medical institution, a hospital. Back then, let us say, almost everyone—or even everyone, as we might put it—was self-employed. A person was a milkman or a seller, and whatever he received, he put in his wallet or his cash box. The same applied to other work. There was no institution, no employer-employee structure that required pension contributions. That simply did not exist. A person worked, and he knew how to allocate what he earned. We find many halachic authorities mentioning the rainy season, the summer season, and so on. That was relevant to a person whose work brought him income during a particular period of the year. So, of course, he

55:49 Speaker 2 He would divide up the pay he received, the money he received—it wasn’t called a salary then. He received money and divided it according to the circumstances. Of course, he had to put some aside as savings and live on the rest. No, it was not like a time when the work he was doing actually paid well or produced returns. That is why we do not find the concept of a pension. But as we defined it, there were really only three positions: a shliach tzibbur, a teacher, and a shochet. These were the only ones whose support was the responsibility of the community. They were the only ones who were not paid simply for the work they did. Why, in the case of a shochet, did it have to be a communal position rather than his working independently? Because halachah rules that the shochet must be under the authority of the mara d’asra, who determines whether his knives are fit, whether he has reached an age at which he can no longer shecht, and many other such matters. The rabbi made those decisions. As we see discussed at length in the responsa of the Noda BiYehudah, the Tzemach Tzedek, and the Chasam Sofer concerning the status of the local shochet and all these matters, he had to be under the rabbi’s authority. So he was not paid per cow or per bird that he shechted, nor did he do the work privately; he received his salary from the community. The same was true of a teacher. A teacher of young children also had to be under supervision, and the rabbi of that community decided how he would be paid. The Rebbe—

58:10 Speaker 2 The Divrei Chaim, the gaon of Sanz, discusses a question concerning a rabbi. Of course, a rabbi is also included under the law concerning a teacher. A rabbi who served as a dayan passed away, and another rabbi took his place—one who was not related to the family. As we mentioned at the beginning, when a teacher, a shliach tzibbur, or a rabbi was succeeded by his son, and the position passed from father to son and so on, it was easier to add a little to his salary for the benefit of his widowed mother, or for his siblings if he had any. If the son received the position, it was easier. But the question brought before the gaon of Sanz was about a case in which the local dayan had passed away and another rabbi had arrived. They discussed the matter when the widow came and said, “I have nothing to live on, and my husband used to receive such-and-such an amount from the community.” The rabbi who had taken her husband’s place, being a great and distinguished rabbi and a G-d-fearing man, said: “How can I take her husband’s place and leave her in this situation? Leave the widow like this?” So he sat down and determined that a certain amount should be given to the widow. He said that this was incumbent on the—on the widow—no, excuse me, incumbent on the community, and that there was an obligation to do it. In a sense, he saw it as an obligation to pay a pension. The Divrei Chaim saw it differently. He says that they cannot even compel a minority of the community to contribute money for the widow. But he says that they had nevertheless gathered and decided that it should be incumbent on the public, on the community. He—

1:01:17 Speaker 2 says, “I do not see this as an obligation.” But, he says, “On the other hand, I saw the tears of the widow and the orphans, and I think you did the right thing—not, however, as an enactment, as you actually ruled, but under the laws of tzedakah.” According to the Divrei Chaim, there is no obligation to pay a pension by virtue of an undertaking or a communal enactment; he sees it as tzedakah. Of course, there are many, many practical differences. If it is tzedakah, she cannot come and demand a particular amount. Nor can she demand the salary her husband used to receive. If it is an enactment, they continue paying what he received. If it is tzedakah, they assess her needs and give her enough to live on. There is another practical difference: if, for example, that widow started working, they would no longer be obligated to pay her, since it is a matter of tzedakah. But if it is an enactment, there is an obligation to continue paying. As we will also see later, there is a responsum by my teacher and rabbi, Rabbi Mordechai Eliyahu, whom I hold in the highest regard. In Maamar Mordechai, he writes about how a pension is defined: Is it viewed as a continuation of the salary, or as something separate? That, too, has practical implications. For example, suppose a person says he needs to, or is thinking of, getting divorced. Can it be said that the money earned through the husband’s work while they were married is also intended, in part, for her? After all, it is money intended for when they reach retirement age. In practice, we also see that the law counts the years of marriage, and the wife receives a share of the husband’s pension fund according to the division established by the state.

1:03:44 Speaker 2 In any event, the question is whether retirement pay is considered compensation separate from the position and the work a person does each day, or whether we look at that money in light of its origin. In other words, is it a continuation of the work, or is it something separate? There is another practical difference, as we said, in the case of a woman employee who receives retirement pay. Do we define it as something in its own right? When pension payments are received—that is, are severance pay and pension payments proceeds of the work of her hands? This is another practical difference for a woman who says, “I want to keep my earnings; I am not giving the work of my hands to my husband.” We have to determine whether the pension is proceeds of her work, or whether it is part of the compensation for the work she did over the years. In any event, according to the Divrei Chaim’s definition, we look at the pension as a form of tzedakah. There is no enactment requiring it, and, as we said, there are many practical differences. Another is that if it is tzedakah and, for example, they have no money for tzedakah, or they want to give tzedakah for another purpose, then the amount can depend on what the fund can afford. It might be one amount at one time and another amount at another time, rather than something fixed. But if it is an enactment, we regard it as something truly obligatory. Even if she works, and even if there is no money, the community will have to pay, because it is required by an enactment. The gaon of Brody, Rabbi Avraham Menachem Mendel HaLevi Steinberg, brings in his book Machazeh Avraham a question posed by the beis din of Zhelna concerning pension payments for a widow. There, the gaon of Brody, the Machazeh Avraham, also cites the Divrei Chaim, but disagrees with him and says that they must pay her what is due. He says that this is not tzedakah; it is, in fact, payment connected with the work that must be given. There was also a question there about pension payments for a widow, and he writes that they should not be given as tzedakah, as the Divrei Chaim writes, but because of “you shall do what is right and good.” He writes that the question there concerned paying the widow of the local shochet and bodek. So we say that the obligation stems from doing what is right and good, and even if the community has no fund from which to pay, they must pay. He writes, “And we compel them to go beyond the letter of the law.” What does it mean to compel someone to go beyond the letter of the law? Since a Jewish custom has the force of Torah law, and since the custom in all Jewish communities is to pay and to follow the local custom, he writes that there is an obligation to do what is right and good and to provide the payment. Pension payments must therefore be made not as tzedakah, but under the obligation to do what is right and good. That creates a binding obligation. In fact, many of the leading halachic authorities rule this way, as we mentioned. My teacher and rabbi, Rabbi Mordechai Eliyahu, cites this in Maamar Mordechai. It is also brought in rabbinical court rulings concerning pensions, which follow this approach. He writes that an employer who failed to make pension-insurance contributions for employees, contrary to legislation requiring him to do so, will be exposed not only to a claim for all the payments left unpaid through the end of that employee’s period of employment, but will also—

1:06:02 Speaker 2 A pension for the widow. There, the gaon of Brody, author of Machazeh Avraham, also cites the Divrei Chaim, but disagrees with him. He says that they must give it to her properly. It is not charity; it is, in effect, payment owed for the work. There, too, the question concerned pension payments to a widow. He writes that they should not be given as charity, as the Divrei Chaim writes, but because of the obligation to “do what is right and good.” The question there was whether to pay a salary to the widow of the community’s shochet and bodek. So we say that this is a matter of doing what is right and good, and even if the community has no fund from which to pay, it is obligated to do so. He writes there, “We compel people to go beyond the letter of the law.” What does it mean to compel someone to go beyond the letter of the law? Since this is an established Jewish custom—and Jewish custom has the force of Torah—and since it is customary in all Jewish communities to pay and to follow the practice of the country, he writes that there is an obligation to do what is right and good, an obligation to pay. Therefore, pension payments must be made not as charity, but under the obligation to do what is right and good. There is a binding commitment to pay them. In fact, this is the ruling of many leading halachic authorities, as we mentioned. My teacher and rebbe, Rabbi Mordechai Eliyahu, brings this in Maamar Mordechai. The rabbinical court rulings also address pensions and follow this approach. He writes that an employer who did not make pension-insurance contributions for employees, contrary to legislation requiring him to do so, will be exposed not only to a claim for all the payments left unpaid through the end of the employee’s period of employment with him; he will also

1:08:42 Speaker 2 He is also liable to pay a claim arising from an employee’s loss of ability to work if that employee worked for him and he did not arrange insurance against that loss. He must pay because he violated a legal obligation, an obligation under section 63 of state law. In other words, the rabbinical court wrote, word for word, that according to the customary law here in Eretz Yisroel, payment is required. Now, as we said, since 2008 an extension order for mandatory pensions has applied throughout the Israeli economy, under what is called the general collective agreement for comprehensive pension insurance. In other words, the law says that this order obligates an employer to arrange pension insurance for an employee. Failure to comply is considered a breach of a statutory duty owed to the injured party. So even if the employee does not take care of it, the employer is obligated to do so. Rabbi Blau also discusses this at length in his book Pischei Choshen, and we mentioned the Tzitz Eliezer, who likewise writes that we follow this rule and these established provisions. The Tzitz Eliezer writes that, beyond the need to provide for a person in old age, when he can no longer work, this is not merely a matter of tzedakah. It is a matter of custom—the prevailing practice of the country—which obligates us to do so under the principle of “doing what is right and good.” Therefore, he must be paid the salary due to him, and it must be paid on time. On this subject, the Rebbe’s response concerning a widow’s pension is particularly important. We see

1:11:19 Speaker 2 this in a response the Rebbe wrote to the administration of Tomchei Temimim Lubavitch in Lod. It is a letter dated 11 Iyar 5725, found in Igros Kodesh, volume 23, letter 8,977. There the Rebbe addresses a question concerning the widow of Rabbi Chaim Solobrook[unclear], who had been the director of the Temimim yeshiva in Rishon LeZion, and the Rebbe addresses the question of her pension. As I understand the letter, we need to consider something that is quite common. Sadly, I can say that today many people confuse devoting oneself to shlichus and showing mesirus nefesh—which of course is beyond question, dedicating one’s days and nights to shlichus and giving of one’s time and even one’s own money—with the need to receive a salary, provide for one’s household, and look after one’s wife. A person also has to consider that, G-d forbid, he could become ill or pass away, G-d forbid. If he has not thought about what will happen afterward, what will become of his widow? Today we see that because of situations like this, they truly depend on others. It is true that the beis din acts as guardian for widows and orphans and must look after them and provide for them. We see so many appeals for tzedakah on their behalf today. But if a person had thought ahead... Now, I do not want to discuss that subject here. Life insurance is also a subject in its own right. Almost all the halachic authorities say that a person should indeed have it, and that doing so does not show a lack of faith. We see today that even a person who is healthy and well can have the smallest thing happen to him, Hashem protect us, and leave a burden behind. And often

1:14:10 Speaker 2 that burden affects the children as well, and the widow too may, Hashem protect us, collapse under it and follow him, G-d forbid. Sadly, these things happen. So we must understand how important this is. A shliach, a rabbi, even the director of an institution, may devote himself to a great shlichus and important work. But he must know that he needs a payslip, with pension contributions made through it. It should reflect a respectable salary, so that his children and his widow will have something to live on afterward. This is receiving more and more attention today. But back then, as we know, people in yeshivos and institutions certainly worked for the sake of Heaven, but received a stipend. The stipend was not always documented, pension contributions were not always made, and they lived on that money. Many of them did not even put anything aside. Then this matter reached the Rebbe. The Rebbe wrote—and here I want to quote his words: “A pension for the widow, may she live for many long and good years, of the chossid Rabbi—” Ah, the Rebbe means Rabbi Rok[unclear]—“founder of the aforementioned branch and its director with mesirus nefesh for several years.” Here the Rebbe emphasizes that we must take into account, as we will see at the end, that he devoted himself with mesirus nefesh. We cannot now say that all the work he did, without receiving compensation or money for it—all that he invested, accomplished, and did—counts for nothing. He received, ah, fifteen thousand, ah, liras. I do not know what a lira is worth today, but that raises another halachic discussion, about a kesubah written in liras. When the time comes to collect that money, how do we assess it? According to the value of the money

1:16:37 Speaker 2 then, or according to what it is worth today? Of course, we assess what it was worth at the time and use that value. The halachic authorities do discuss this question, but at the time that amount gave a person something to live on. Now the Rebbe emphasizes that this director ran the institution with mesirus nefesh for several years, and that cannot be ignored. The Rebbe writes: “It should be in accordance with the practice in the Holy Land, may it be rebuilt and established.” The Rebbe says we follow the prevailing practice of the country. This took place in Eretz Yisroel; he worked in Rishon LeZion, in Lod. So the prevailing practice in Eretz Yisroel governs the employer-employee relationship, the pension, and how much he must be paid. And the Rebbe emphasizes: “And in Chabad institutions in particular.” We must also look at how much is paid and provided in Chabad institutions to someone who did this work. We must calculate the years he worked and how much he is owed overall. That is how the Rebbe concludes. We see from this that the obligation is not based on tzedakah, but on the prevailing practice of the country. That practice is binding and can be enforced. We have an obligation to do this under the principle of “doing what is right and good,” and accordingly, pension payments are made. Regarding the Rebbe’s point that we must also take his work and activities into account: a case came before our beis din of the Union of Rabbis in France concerning a rosh yeshiva who, G-d forbid, passed away prematurely. Throughout the years he had received money as a stipend from the yeshiva. There is, of course, assistance and support provided by the state. Here in Israel there is what is called funding from the Ministry of Religious Affairs, to which an additional amount is added, as is the case for almost all the kollel students.

1:19:14 Speaker 2 As a yeshiva student, you also receive a stipend. That rosh yeshiva received a large stipend, but it was still a stipend. So of course he sacrificed. Until they had truly built up the yeshiva and it had earned a distinguished name, he went around, wore out his shoes, worked, and sacrificed day and night, with no set hours. He also never said, “I worked this many hours for the institution, for the yeshiva.” He simply sacrificed and worked. Now the widow comes and asks the institution where her husband was rosh yeshiva, where he worked and accomplished so much, to pay her a pension. On the other hand, the administration says: No. We are willing to help now, to give her occasional, temporary support. We can also help her for the holidays. But a pension? After all, she does receive a certain amount from National Insurance, and also a pension from work her husband did at some point in his life, when he made contributions. So they said: We really are willing to help, but not to supplement her pension with a regular payment that would constitute an obligation. So, of course, we looked into the matter and heard both sides. As we’ve explained, we follow local custom and the practice of the country. We consider this under the principle that the law of the land is law, and look at what has been established regarding pensions and all these matters. The other side, the wife’s side, wanted to argue that her husband had, in a sense, the status of a partner. And as a partner, he should receive a share of the proceeds—the fruits of his labor, and so on. Of course, we did not want to go into that question, but

1:22:10 Speaker 2 What we do look at is the institution, especially when it is a yeshiva. Unlike other places, a yeshiva’s name is built on its rosh yeshiva—on who the rosh yeshiva is. People do look at the material side, of course, but they don’t look at who the administrator is or how he runs things. Of course, “If there is no flour, there is no Torah.” But who is the rosh yeshiva? Even those entering the first or second year, who have not yet reached the rosh yeshiva’s classes, are waiting until they do. The rosh yeshiva gives the yeshiva its distinction. The boys come to the yeshiva because of the rosh yeshiva’s reputation. He writes sefarim and gives extraordinary classes. He has a brilliant mind, shares his insights with the boys, and gives them a method of learning. That is the rosh yeshiva. In this case, they built the yeshiva from nothing. You cannot say it was a yeshiva that already had a reputation, like Tomchei Temimim or other yeshivos—Porat Yosef, Kisse Rahamim, or other important yeshivos with established names. Whoever becomes rosh yeshiva at those places—of course, not just anyone; they want genuinely good roshei yeshiva—the yeshiva’s own name still carries weight. Here, they established a yeshiva from A to Z. The rosh yeshiva truly wore out his shoes, went out and brought in one boy after another, and taught them. “Those who sow in tears shall reap in joy.” They labored, worked, accomplished more and more. You cannot ignore that the boys who came did so largely because of the rosh yeshiva. In this matter, we see the rosh yeshiva as an inseparable part of the institution. You cannot now say, “What he did is done.” Without him, there would have been no yeshiva at all; and if there had been one, it would not have been a yeshiva

1:24:56 Speaker 2 like the flourishing one there is today, and so on. His work, his devotion, the hours he gave, the classes he taught—everything he contributed to the yeshiva—made it what it is. So we looked at this question and concluded that we cannot really define him as a partner. On the other hand, there is a halachah in Shulchan Aruch, Choshen Mishpat, section 375, concerning someone who enters another person’s field and plants it, or enters another person’s property and builds a house for him. The question there is whether he did it with permission or without permission. Even if he did it without permission, the owner cannot say, “I won’t pay you.” He went and planted, worked in the field, and improved someone else’s field. Of course, this is not a case where the owner told him, “Don’t come in.” He entered without permission, but the owner knew and allowed it. The owner cannot tell him, “Take away everything you did”; he must pay him. Even where the person entered without permission, without coordinating or making an agreement with the owner, halachah rules that the owner of the field must reimburse him for his expenses. There is also a particular point discussed by the poskim, but we won’t go into it at length: What if his expenses were greater than the improvement he made? Then, of course, halachah says he is paid for his expenses—all his expenses. And the same applies here: if someone enters another person’s field and does this with permission, the owner must pay him like a sharecropper. In other words, he must pay him at the best rate—for the improvement, for the expenses, for everything. In this case, that

1:27:55 Speaker 2 rosh yeshiva joined the yeshiva, worked and accomplished things, and improved it. Of course, he did so with the institution’s permission and encouragement. Halachah says, and this is how the poskim rule, that he can come even later and say, “This is what I am owed.” The institution cannot tell him, “You did it for yourself,” or “You did it without my asking you.” You did it for a holy purpose—to increase Torah study in this case, or to plant more trees. You really did it, and I claim—nor can the owner tell him, “Take it all back.” He must pay him for what he did. The owner of the institution, or those who come after him, cannot tell him, “You did it for the holy purpose of shlichus, for the Rebbe,” and so on. The Rebbe also says that in such a situation, one must consider the matter and pay a pension; one cannot say it was all for a holy purpose. If a person lives solely for a holy purpose, how will he bring bread home? So one must look at the situation and provide for him. That is how we ruled: we looked at how much the widow has to live on, at the years her husband worked at that yeshiva, and we made a calculation. We considered how much he received from another place and how much pension income she has today, and we provided a supplement—not as charity, but as an obligation, in keeping with “You shall do what is right and good.” Now, one final point. They wanted to raise the argument that he had the status of a partner. On this question, I found a discussion in the Rishonim, and also from the great gaon to whom I was very close, one of the leading poskim, known to everyone as the Garzan, who gives a clear ruling. That is the great gaon Rabbi Zalman Nechemia Goldberg, of blessed memory. Thank G-d, we merited to be close to him and to bring him many halachic questions in the course of the Talmudic Encyclopedia, which is, in fact, the fruit of the work of the gaon

1:30:41 Speaker 2 The chossid Rabbi Shlomo Zevin was the one who really brought this subject to the fore, and we know how close the Rebbe was to this institution. After Rabbi Zevin’s passing, Rabbi Zalman Nechemia Goldberg z"l headed its editorial board. On this subject, he writes: Why is someone who improves another person’s property without permission automatically entitled to payment? After all, he did it on his own initiative. Still, the case is described as someone who “enters his fellow’s field.” It does not say he went to an enemy; he went to his fellow. He knows this person did not tell him, “Don’t do anything.” But in his mind, that fellow is saying, “Fine, let him do the work. What do I care? I didn’t ask him to.” He cannot simply say that. Several reasons have been given for this ruling. One view is that the other person improved his property, and therefore he deserves to be paid. Other early halachic authorities say it is because he saved the owner money that the owner would have had to spend to make that improvement. In other words, the money the owner saved is treated as belonging to the person who did the work. He says to him, “Look, you saved the money it would have cost to do this. I did it, so the money you saved is owed to me.” That creates a connection, but not as strong a connection as we are about to see. Some early authorities and halachic decisors say that the reason someone who improves another person’s field or property must be paid is that, through the planting or building he did, he becomes a partner with the landowner in the increase in value. In other words, you did something that improved and upgraded the place, upgraded the property. Now we look at it differently from a case where someone came in and made

1:33:18 Speaker 2 repairs to the house or added another room. That raises its value much more; it gives the owner much more. Or even if he divided up the rooms, we now look at the property differently. It is no longer the same house; it is more, it is bigger. That rosh yeshivah who improved the yeshivah and gave so much to it—it is not the same rosh yeshivah, and it is not the same yeshivah. Today it is a yeshivah with a reputation and a good name. Even if another rosh yeshivah has now been brought in, that reputation rests on the person who actually built it. The same applies to an institution’s director, the person who truly did everything and made it happen. Because his work brought it to this point and increased its value, he becomes a partner in that increase and receives more. There is even a further distinction: while a partner might, in certain circumstances, receive less, he could be paid for the increase in value as a sharecropper would be. That puts him in the best position. Based on this understanding, along with several others, we have essentially reached the conclusion that, when it comes to a pension, as we said, dina demalchusa dina—the law of the land is binding—and we follow the local custom. That is what guides us. There are laws today, and they must be upheld. Of course, everything must be handled through a beis din. The beis din will hear both sides, weigh the considerations, and examine all the facts: how much he received, how much he is owed, and how many years he worked. Everything follows the custom of the country. Payment is required not as charity, but under the prevailing practice. It is not simply a matter of charity, where a person decides whether to give and how much to give. And it does not depend on whether

1:35:15 Speaker 2 there is money available. Nor is it like that yeshivah administrator’s proposal to help him from time to time, to give him assistance for the Yomim Tovim. No, this is not charity. It is a matter of “doing what is right and good.” There is an obligation here. One must take into account all the work he did, all the hours he devoted, and everything he did to upgrade the place, and reach a fair agreement. He should be viewed under the law of one who improves his fellow’s field. In this case, of course, he did it with the owner’s permission and increased its value, and he must be paid for that increase. As we explained, according to many halachic decisors he has the status of a partner in the increase in value—not in the original property, but in the value he added. And truth and peace will follow. Everything must be done pleasantly and peacefully, in accordance with the law of our holy Torah and the rulings of batei din. This must be done, and a person must take action to address it. And… may Hashem help us increase love, fellowship, and peace in this matter, and bring about the outcome that… We know that when people come before a beis din—as I saw Reb Azriel Futerfas mention—why are we told to regard both litigants as wicked before the verdict is given? Surely one of them is in the right and the other is not. One of them must be right, so why regard both as wicked? We should say that about one of them, not both. One of them must be righteous. And after they leave, we are told to regard both as innocent, although one of them has lost the case and is liable. Why regard both as innocent? Rather, the very fact

1:37:49 Speaker 2 that they came before a beis din—and the Shechinah rests wherever a beis din sits—means that they are no longer in conflict. Baruch Hashem, they have reached a resolution and accept the—of course, when they accept the ruling, both are regarded as innocent. So we must understand that if a beis din has ruled, and a person came and signed an arbitration agreement and accepted its authority, he must abide by its decision. When both parties accept the ruling, they are both considered innocent. Even the one who must pay is innocent in this sense: baruch Hashem, the beis din has given him the opportunity to pay his debt.