QUESTION: I am an administrator in a Yeshiva with the authority to hire contractors, negotiate prices and thereby, help ensure that the Yeshiva only chooses service providers that are in its best interest. Recently, I hired one of the contractors that I use in the Yeshiva to paint the attic floor in my home. When I asked the contractor the price, he responded, “I am only charging you for the materials, but I will not charge you for the labor costs.” Am I allowed to take this discount from the contractor or is this a form of bribery that could possibly influence my judgement when it comes to making future decisions on which contractors to employ for the Yeshiva?
ANSWER: This is a remarkable question that involves three important sources:
- a Gemorah in Sanhedrin (27a and b)
- a ruling of the Rosh (Sanhedrin “Zeh Borer” - Siman 17)
- and the words of Rabbi Yom Tov Heller Z”TL in his Pilpulah Charifta.
The Gemorah tells us of a man named “Bar Chama” who allegedly killed a person. The Raish Galusa (Exilarch) said to the judge, Rav Abba bar Ya’akov: “Go investigate this case, and if he certainly killed him, let the government authorities put his eyes out.” – which Rashi says was a fine that was not Halachically prescribed. Then, two witnesses came and testified that Bar Chama did indeed kill a person. Bar Chama then went and brought two other witnesses, who testified that one of the witnesses that testified against him was a thief.
Rav Abba bar Ya’akov said to Bar Chama: “Why did you bring these witnesses? Do you believe as Rabbi Meir does in his dispute with Rabbi Yossi, that one who is guilty of theft is disqualified from testifying in capital cases? Rav Pappi, who was present at the time, then proved that we do indeed rule like Rabbi Meir and Bar Chama was acquitted. Bar Chama then arose and kissed Rabbi Pappi on his feet and accepted upon himself to lobby the king to exempt Rav Pappi of his Karga (a type of tax) for the rest of his life.
It bears mentioning, that Rav Pappi was a communal figure who needed to handle the affairs of the community in a fair, impartial manner. The Rosh below will ask a question on how Rav Pappi was able to take this favor from Bar Chama as it may affect Rav Pappi’s impartiality in future communal matters that involve Bar Chama.
The Rosh (Siman 17) asks, “How is this permitted? Isn’t this a case of post-facto bribery (bribery after the fact, in hopes of future favors)?” He answers that Bar Chama didn’t give Rav Pappi any monetary compensation – rather he just saved him money by speaking to the king on his behalf to exempt him from a tax that he was technically exempt from paying anyway (a clergy exemption). Therefore, it is not considered post-facto bribery. Otherwise, it would have been forbidden.
The Pilpula Charifta (letter Shin) on the Rosh writes: “Come and see the great matter that our Master (the Rosh) has taught us! That bribery is forbidden even in matters that are not Halachically prescribed as was the case with the potential fine that was to be done to Bar Chama above as he took it upon himself to take care of Rav Pappi’s Karga in a manner that did not involve a bribe [otherwise, it would have been forbidden.] I write this to teach that those who have been appointed to the Tzibbur (serving the public) that even though their decisions and responsibilities are not Din Torahs and they were not appointed as such – they must be careful not to accept gifts for their decisions.”
We now go to Rabbi Abraham Tzvi Hirsch Eisenstadt of Byelostok ZT”L (1812-1868) the author of the Pischei Teshuvah on Shulchan Aruch. He cites (Choshen Mishpat 9:1) the ruling of the Pilpulah Charifta above, as authoritative Halacha.
Accordingly, an administrator of a Yeshiva may not take a discount from a contractor that he employs personally when that contractor is also employed by the Yeshiva.
