IS THE TORAH'S CIVIL LAW RELEVANT TODAY? TORAT CHOVEVEI A YCT Community Learning Project Study Guide: Parashat Mishpatim This study guide was made possible by funds granted by the Covenant Foundation. The statements made and the views expressed, however, are solely the responsibility of the author.

Moshe Feinstein, Igrot Moshe, Choshen Mishpat, vol. 2, ch. 18

October 6, 1980. To Rabbi Reuben Sofer...

With regard to smoking cigarettes in the Beit Midrash and Beit Knesset where all of the members of the Yeshiva study and pray. And there are young men who cannot abide the smoke. And it also sounds like it is hard on their bodies for they wrote in their request that they have great suffering and headaches, and it damages their health, and perhaps it even shortens their lives. And irregardless of what they wrote, it is known that it (smoking) is damaging for many people, and therefore we should suspect that you can get sick from the smoke that others are smoking not far from you and from the smoke in the Beit Midrash. And I've been asked if it is possible to prevent them from smoking in the Beit Midrash and in the Beit Knesset?

And it is simple and clear that even if there is no suspicion of danger or illness that would cause them to "take to their beds" but rather it is hard for them to take, for it this causes them discomfort, it is forbidden to smoke there...And this is like the bloodletters that Rav Yosef said it is forbidden for them to let blood on their own ground because the blood will attract ravens who eat blood and (the ravens will then perch in the date palms and) they will ruin the dates (Baba Bathra 23a). And it is explicit there that there was no real loss but rather, for normal people, there was no loss at all, because they would wash off the dates and eat them. And only Rav Yosef who was particularly fastidious would not eat dates like these. And it also doesn't appear that Rav Yosef would get sick from eating them. However, it would be extremely uncomfortable for him to eat them. And in any case, it was forbidden for them to let blood from the prohibition of doing damage... And this is as the Rosh wrote at the end of sec. 18 from here we hear that all damage that is known that the plaintiff cannot take it, even though other people can take it, this is not a presumption against the plaintiff. And the Tur brings this as the law in ch. 155 sec. 59. And in the Shulchan Arukh ch. 155 sec. 41. And therefore, even more so in the case of smoking cigarettes, that those who are not able to take it, this is a real discomfort and not a matter of particularity and fastidiousness, and this is not only discomfort but also real damage to them as is known, it is forbidden for smokers to smoke there even if it was their property, if it was possible for the smoke to reach them and they will be uncomfortable and damaged.

However, it is even worse than that. For the smokers are doing an act of damage with their own hands. For they are making smoke with their mouths that damages the non-smokers who are there. And even though one smoker would not do any damage for the smoke would disappear in a large building like a Beit Midrash, in any case, since every smoker knows that there are many more smokers, they therefore know already that their smoke will do damage and this is damaging with their own hands. And it is obvious that if there was an ordained court that judged issues of damages, they would demand payment for discomfort and if they got sick from this, payment for medical expenses even if there was no payment of damages because there was no loss of work because of the sickness. And if so, you must know that damages are different from fines. For a fine, even though it is clear that if there was an ordained court, they would require a fine, They are exempt from paying in this day and age because without the final verdict of the court, there is no obligation of a fine at all. However, damages, which are compensation, they are obligated in essence, even if there are no witnesses so that they can't sue them at all and they have the obligation to pay even though the court cannot enforce their obligation...

...For in any case, it is forbidden for the smokers to smoke in the Beit Midrash and in any place where there are non-smokers who say that it damages them, and even if it is only discomfort alone...

Moshe Feinstein, Igrot Moshe, Choshen Mishpat, vol. 2, ch. 25

August 19, 1930...To Rabbi Yechezkel Sharaga Weinfeld,

With regard to the diet that a person takes on, and as a result of the diet, a person suffers more than the discomfort of abstaining from wine, which Rabbi Eliezer HaKapar said is forbidden (Baba Kama 91b), and the Gemara learns from this that a person is not permitted to damage themselves. And the Tosafot wrote that it is forbidden even when it is needed...

Obviously, people who diet for the purpose of health, so that they will not get sick and will not be in danger, it is certain that there is nothing to question and this is not what your honor is asking about. And this is not one of the "needed" things that the Tosafot wrote were forbidden, for that is for the purpose of earning money or to increase one's suffering in mourning a dead person. Because for health, even when they don't have any immediate damage, the discomfort from the illness and even from the concern not to become ill, is greater than the discomfort of not being able to enjoy the things they are abstaining from eating. And even if they suffer some hunger, this is simply exchanging a small discomfort for a large discomfort which is certainly no only permitted but from this very rule, that it is forbidden to damage oneself and to cause oneself discomfort, one is required to follow the diet that the doctors have prescribed.

It is only relevant to speak about women who take on diets only for the sake of beauty, if it is permitted since they cause themselves discomfort. However, see what I wrote in my book, Igrot Moshe, Choshen Mishpat, vol. 1, ch. 103 that it is obvious that for the purpose of earning money and other benefits, one is permitted to suffer the discomfort of abstaining from wine since this is not considered discomfort at all since, on the contrary they are happy from the money that they are earning and from the other benefits tat they have from this since all the discomfort is from the fact that they desire wine and, in fact, they desire to earn money more as we can see since in order to do this, they have abstained from wine. And this is simple and clear and it is the exact same thing with the benefit of the woman from the fact that she is more beautiful. And this is not only about single women who want to get married, but even among married women in order to be attractive to their husbands as we say that they prefer the diet and they do not mind that they are made uncomfortable because of it because of the benefit from the beauty... However, this permission is only for the discomfort from abstaining from sweet things where the discomfort is only from the abstention from the abstention from a benefit that is considered a benefit against another benefit and she chooses the benefit of beauty which is most important to her. However, if in the course of the diet, she is uncomfortable because of hunger, even if it is only in such a way that she is not concerned that she will become ill from hunger...for this is an essential discomfort and not discomfort from a desire. This is like the discomfort of damaging oneself which I wrote in the above cited source, it forbidden for the purpose of earning money and other benefits. And therefore, it would seem forbidden for them to starve themselves for beauty...

However, we've seen in Megillah 7b that there are times when hunger is actually from the quality of the food which tells us that the discomfort of hunger is also connected to the desire for benefit. Therefore, since in taking on the diet, there is an aspect of eating so that there will not be the essential discomfort of hunger, and if so this is only the discomfort of the removal of benefit which we do not forbid when she benefits, as a result, from beauty. And therefore, even though there is reason to forbid when she has pangs of hunger if the diet is only for beauty and not for health, we shouldn't stop them...