Parshas Mishpatim 5785 – Intriguing Questions & Answers
Does Someone Who is Sleeping Need to be Woken Up to Prevent an Issur Yichud?
Q: These situations arise frequently, such as when a grandson sleeps at his grandmother’s house. There is no prohibition of yichud at night between a grandson and grandmother, as stated in Shulchan Aruch Even HaEzer (22:1); see Pischei Teshuva and Bach there. However, suppose after the grandson has already gone to sleep, a female relative arrives with whom yichud with her is prohibited. In that case, there may still be a concern for yichud, for although the grandmother is a shomer in regards to yichud, nevertheless, during the night, two shomrim are required to prevent yichud, as stated in Rema Yoreh Deah (192:4), and Even HaEzer (22:5). Thus, the question arises: does the grandmother need to wake him up, since he is now in a situation of yichud at night?
A: In such cases, I rule that there is no obligation to wake the sleeping grandson, even if a yichud prohibition exists in the house.
The reasoning is as follows: First, it must be determined whether someone who is asleep and in a state of prohibition is considered to be actively transgressing, or if, since he is sleeping, he is not considered to be violating any aveirah. See more on this topic in Rav Akiva Eiger and Pri Megadim (Orach Chaim siman 21), Shu”t Igros Moshe YD. 230:4, Sefer Sdei Chemed, and Shu”t Shevet Halvei (6:50) who elaborate on this topic.
This issue is discussed in Yoreh Deah (Siman 372, Shach se’if katan 3), where the Rema writes that if a Kohen is sleeping in a tent where a corpse is present, he must be awakened and informed so that he can leave. The Shach qualifies that this applies specifically to an issur d’oraisa. However, if the corpse is in an adjacent tent—where the prohibition is only d’rabanan—he does not need to be awakened. The Sefer Daas Kedoshim explains that this is because Chazal did not enact their decree b’makom tzaar, in cases of distress. Accordingly, he writes that when it is only a possibility that waking someone will cause them tzaar, they may be awakened.
Thus, according to the Shach’s position, it appears that in our case, where the prohibition of yichud is only d’rabanan (since there is one shomer), there is no need to wake the grandson. Thus, if someone is sleeping in a place where they are violating an issur d’rabanan, there is no obligation to wake them. However, if they are violating an issur d’oraisa, they must be awakened. In this case, since there is at least one shomer present, the prohibition of yichud is only d’rabanan, and therefore, there is no need to wake him. I have also heard this psak from Rav Avigdor Nebenzahl, shlita. Furthermore, there is a discussion among the Acharonim whether mitzvos and aveiros apply to a sleeping person at all.
The laws of yichud are extensive and equally important. B’ezras Hashem, in the coming weeks, we will present additional practical halachos regarding yichud, and elaborate on its fundamental principles.
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Someone Borrowed an Umbrella for Rainy Weather, and the Wind Broke It
Q: During the winter, with heavy rains and strong winds, Reuven asked his friend to borrow his umbrella to go from yeshiva to a store. While walking, the strong winds blew the umbrella in all directions, and by the time he returned to the yeshiva, the umbrella was completely broken. Does Reuven have to pay Shimon for the umbrella that was damaged by the wind or not?
A: The ruling in such cases is that Reuven is exempt from paying Shimon.
The Shulchan Aruch (Choshen Mishpat 340:1) states that if someone borrows an animal or movable object and it is damaged due to an oneis (unforeseen circumstances), he is liable. However, if it was damaged due to the normal use for which it was borrowed (meisah machmas melachah), he is exempt.
Therefore, in our case, if the borrower used the umbrella normally in ordinary wind conditions, he is exempt, as this is considered “meisah machmas melachah—damage due to intended use.” However, if he took it out in an unusually strong wind and it broke, he is liable, since the lender only loaned it for use in regular conditions.
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Someone Placed a Cup of Coffee on the Table, And Another Person Spilled It and Ruined a Hat – Who Is Liable?
Q: An incident occurred where someone placed a cup of coffee on a table in the Beis Midrash. Since the space between tables was very narrow, when another person passed by, the cup was knocked over, spilling coffee onto a nearby hat and sefer. Now, the two want to know—Is the person who placed the coffee cup responsible, or is the person who walked by and accidentally knocked it over liable?
A: To answer this case, we must first establish a fundamental question in Hilchos Nezikin: Is a person responsible to look carefully wherever they walk, even when there is no apparent risk of causing damage?
The Gemara (Bava Kama 27b) states that people do not typically inspect their surroundings while walking. Based on this, one might argue that the passerby is exempt because people do not usually examine their path while walking indoors. However, this case is different, because in Shuls and Batei Midrashim, it is common for full cups of coffee to be placed on tables. Given that those who learn in the Beis Midrash know that walking through the narrow space might shake the tables, the passerby was negligent.
In Conclusion: In this case, the passerby is liable for the damage. However, since similar cases may vary depending on specific details and circumstances, one should always consult a dayan to determine liability in each situation.