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not to spend money or hire people in order to do so. Therefore the
Torah tells us: “Do not stand idly by the blood of your fellowman.”
One is even obligated to spend money in order to save the life of
another. In other words, if not for the added injunction of “Do not
stand idly by the blood of your fellowman,” we would be exempt from
spending money on the mitzvah of saving a life. It follows that when
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in comes to the mitzvah of rebuke, where no additional injunction is
mentioned, one is exempt from the mitzvah if it will cause him a loss
of money.
Thus Reuven is not obligated to prevent Shimon from sinning
and to prevent their employer’s monetary loss if, as a result of doing
so, he will suffer financially. In mitzvos between man and his fellow
that are based on lovingkindness, the principle is that “Yours takes
precedence.”
But the Gemara in Bava Metzia limits this principle of “Yours takes
precedence.” The Gemara states that “Whoever lives that way will end
up that way.” Rashi explains (s.v. kol hamekayem) that “Although the
Torah did not put it upon him, a person should do above and beyond
what is required of him and not insist on ‘Mine takes precedence’ un-
less there is an obvious loss. If he constantly adheres to this principle,
he is removing from himself the yoke of lovingkindness and tzedakah,
and ultimately he will have to rely on others.” A person should not be
overly concerned with guarding what is his, because there is no limit
to these concerns. Excessive concern and calculation is likely to lead
a person to completely reject the yoke of lovingkindness and charity.
There is a limit to how much a person is allowed to exempt himself
from lovingkindness because of concern for his own assets.
Rashi established the boundary as something that is considered an
“obvious loss.” If no clear possibility of loss exists, he should not allow
doubts and concerns of loss to creep into his mind. The Tur rules
likewise (Choshen Mishpat, beginning of #264): “A person should not
be too exacting and say ‘I will put mine first’ if there is no obvious
loss.” The Perishah explains: “It seems to me that the meaning [of
Rashi and the Tur] is that one should not excuse himself to always
save what is his… In truth, the Torah did not exempt him unless his
316 1 Medical-HalacHic Responsa of Rav ZilbeRstein
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since the plagues in Egypt and the war against Midian could have
been carried out by others. Only this specific patient, however, is able
to provide the testimony requested. He is therefore obligated to give
the testimony because if a person can stop someone from doing a sin
and does not do so, he is considered guilty of the same sin. If there
are enough other witnesses to indict the physician even without this
patient’s testimony, he should not testify, as an expression of thanks
to the physician for treating him.
This applies to sins between man and his fellow, where one is
obligated to return the money to its owner. If the sin does not in-
volve stealing or deception, such as a traffic violation or the like, it is
possible that it is permissible to refrain from testifying against the
physician out of gratitude, under the following conditions: a) He did
not harm anyone. b) He does not regularly repeat this offense, and c)
He regrets his action.
We can learn this from the words of the Chafetz Chaim (Hilchos
Lashon Hara #4:4): If one sees his fellow committing a sin, which, in
general, he is careful not to commit, and he can assume that the sin-
ner regrets his bad ways and is forgiven by Hashem, then one should
not reveal the sin, even to the judges of the city.
In light of this, if the patient was asked to testify against a phy-
sician who meets all of the conditions mentioned above, then since
according to Torah law one does not report the sin to the dayanim,
the patient can express his gratitude to the physician by refraining
from testifying.
However, if the law punishes or jails the patient for withholding
his knowledge from the court, then he does not have to withhold his
testimony. One does not have to allow oneself to be jailed for the
mitzvah of expressing gratitude, as for any other positive mitzvah. As
the Binyan Shlomo (#46) says, one is not obligated to eat a kezayis of
matzah on the night of Pesach if one will get sick from it. (See also
Chelkas Yoav, in the essay on the laws of ones #7.)
Patient malingering 2 345
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