This week’s article will complete our series on lots in halacha. Are Jews permitted to buy lottery tickets? Play Poker? Gamble? Why? When is a lot a halachically permissible system for determining results and when is it not legitimate? Can a lot be cast on Shabbos? Many Avos U’bonim learning sessions on Shabbos afternoons raffle off prizes in order to encourage participation. Is raffling permitted on Shabbos? Does entering one name twice by mistake require a redrawing? What happens if a lot was used to divide an estate, only later to be discovered faulty? What happens to the assets, to whom do they belong? Was Achan, the first Jewish convict in the Holy Land executed only based on the lot that Yehoshua cast? Can it be employed today as well? Is there a way lots can be used today to settle questions of life and death? Of this, and more, in the coming article.
The Torah prohibits all forms of gambling. A gambler is unfit to serve as a halachic witness. There are two reasons to invalidate witnesses who gamble: 1) Taking money earned in a gamble is a rabbinically prohibited form of theft. (See last week’s article for further details.) 2) Gamblers do nothing to make the world a better place to live in. They do nothing for building the world, improving life, or bettering humanity.
Dividing Unequal Parts
If partners wish to divide something, but the parts are unequal in some way — one is cheaper and the other more expensive; one is larger than the second, etc. — dividing them with a lot is forbidden (Shulchan Aruch 322:6). Dividing unequal portions of food is likewise forbidden so family members don’t get used to casting lots as a way of making decisions (Mishna Brura footnote 22). Some permit it when the head of the household gives out food as a gift and only uses a dice or raffle to prevent jealously between siblings (Shulchan Aruch, ibid.)
The Chavos Yair (chapter 21), however, permits using lotteries for increasing Simchas Purim. His example resembles the modern Powerball: every participant puts down a small sum of money, and the entire sum is used to purchase a golden goblet, which is presented to the member whose name was picked by a raffle. The same ruling permits using Chinese auctions for increasing tzedakah donations – each participant donates a sum of money for tzedakah, and in order to encourage donations, a small part of the money is set aside to finance a prize for the raffle winner.
Many communities still maintain the original custom and permit only one person to recite the Kaddish at a time. This is in order to allow the congregation to concentrate on his words, since it is difficult to follow multiple recitations. (While some communities permit multiple recitation of the Kaddish together to prevent fights, it is important for all the mourners to recite it together in unison so the congregation can pay attention properly to the words.) The Rishonim write (Mahari Tirnau – Haminhagim Dinei Kaddish Yasom; Leket Hayashar – p. 96, p.97; also mentioned in the Achronim) that when several people need to recite Kaddish, communities that permit only one reciter at a time should cast a lot to determine who gets the mitzva. The Mishna Brura (Biur Halacha 132) details the order of preference, and who needs to take part in the raffle.
This is permitted, explains the Mishna Brura (Biur Halacha 136:1), because it is for a d’var mitzva, and to prevent disagreement. Just as the mitzvos in the Beis Hamikdash were allotted via something similar to drawing lots, so too, other mitzvos can be determined via lots. Similarly, a lot can also be used to determine who gets the maftir on Shabbos.
Raffling on Shabbos
Although lots are permitted for determining who gets the various mitzvos even on Shabbos, Chazal forbade conducting raffles on Shabbos that are not for mitzvos, except for dividing up equal food portions between household members. The Mishna Brura writes (322:24) that when it is prohibited, a raffle cannot be cast on Shabbos because it is similar to weekday acts of buying and selling, even if a fight might break out as a result.
The Mishna Brura details how to cast a lot on Shabbos: each participant opens a sefer and the numerical value of the first letter on the page determines their number. The participant with the highest value gets the mitzva. Pulling out a slip of paper (which was prepared before Shabbos, obviously), though, is forbidden, because it is similar to gambling, which is forbidden both on Shabbos and on weekdays.
Raffles at Avos U’vonim
Many shuls conduct learning session for children on Shabbos afternoon, after which they raffle off prizes for the children to encourage participation and good behavior. In light of the above halacha, raffles should not be conducted on Shabbos. Children should be given their tickets on Shabbos (obviously, where there is an eiruv) and raffles should be conducted after Shabbos. If the effect will be lost and children won’t come to learn without a raffle, the raffle should be conducted on Friday. In this setup, several names of children should be drawn. If the first does not meet the criteria for winning, the prize goes to the second in line, etc.. It is recommended to keep the list of draws a secret. This way, if the first child on the list loses his opportunity for reasons beyond his control, he won’t suffer heartache for losing.
Sometimes, after drawing the lot, it is discovered to have been faulty. For example – portions were not divided equally; some portions were damaged. Is a faulty lot null and void, or can it be salvaged by correcting the faulty parts – making up for the lost money, for example?
The Radvaz (volume I, 324) opines that a lot, once cast, remains valid, and the party who received the faulty portion should be compensated. However Sha’ar Hamishpat (173:3) opines that this is true only if the difference is one-sixth of the value. If it is less, there is no need to compensate the loser, and if it is more – the lot is cancelled.
However, the Chavos Yair (chapter 61) opines that every human intervention in the lot cancels it entirely. He explains that many issues were concluded through lots in Biblical times because a lot, which does not involve human machinations, displays the Divine Will, as the pasuk tells us: “The lot is cast in the lap, but judgment is from the Lord” (Mishlei 16:33. However, once the human element mixes in, it doesn’t have the heavenly assistance to declare G-d’s Will. Therefore, every party can claim that had the lot been cast properly his luck would have been on his side or his prayers would have helped him win. Thus, everyone has the right to demand a recasting.
The Shevus Yaakov (volume III, chapter 24) explains that whichever method was agreed upon should not be changed when determining between two who came up in the first place. If it was agreed that the lot would be drawn by opening a sefer and he whose’s page begins with a letter of a highest numerical value is the winner, if two people got the same letter of the highest value another lot should be cast between the two in the same manner. However, the Mishna Brura (Biur Halacha 132) writes that if two people got the same letter, the entire lot is cancelled. However, if one got the highest value but for second place there is a tie, the first place is determined and a new lottery is needed only for second place. Additionally, if the lot is for several items (such as several Kaddishim), each item should be drawn separately as opposed to dividing it up according to sequence of drawing.
Death Penalty Lot
In the Books of the Prophets we find two instances in which a lot was used as a vehicle for determining who deserves the death penalty. The first occurred with Yehoshua when the nation conquered Jericho. One person took from the loot, causing the nation to lose the next war against the city of Ai. Since Hashem refused to reveal the name of the offender, a lot was cast, and Achan’s name was drawn. Achan, though, refused to accept the results, as detailed in the first article in this series. In the end, Achan broke down and confessed his sin, proving it by showing the items he had taken. Based on his self-confession, he was put to death.
The second case occurred with Shaul who used it to convict his son, Yehonason, as detailed in the first article in this series. Only when the nation annulled his oath, the king cancelled Yehonason’s conviction.
Achan’s Death Sentence
Was Achan killed based on the result of the lot? The Rambam explains (Sanhedrin 18:6) that Achan was put to death based on a hora’at sha’a –temporary emergency legislation. Although a Beis Din cannot convict a person based on self-confession, a king and Sanhedrin (Grand Court of 71 members) can. Seemingly, Achan was convicted based on an emergency ruling which was delivered though prophecy, or based on his self-confession, and the lot was only necessary to know whom to press for confession. Achan’s claim that it was impossible to put a man to death according to lot alone was, indeed, true.
However, the Rashash (Sanhedrin 43b) writes that the Gemara indicates that Achan was, indeed, put to death based on the lot alone, and his confession was only necessary for his death to atone for his sin, not as a judicial tool.
Lots for Death Sentencing
Sefer Chassidim (701) writes that a ship that experiences stormy weather and is in danger of capsizing may not act as the ship’s crew did to Yona the Prophet. (They cast a lot between all the people on board to determine who was responsible for the storm.) Although King Shaul did do so and was prepared to put his own son to death based on it, he had the Holy Ark with him, and they knew how to cast lots properly. Today, though, we don’t know how to cast lots and cannot rely upon them. He continues and forbids relying on lots for anything at all, including finances. Only if partners need to resort to a lot in order to prevent fights in dividing their joint assets can they use that method and even then, if one part is larger than the other, or of better quality, a lot cannot be employed. This is the reason that two he-goats on Yom Kippur were equal in every way – a lot has the power to determine only when both options carry the exact same merits.
The Yaavetz writes (Migdal Oz, Even Bochen, footnote 110-111) that the Sefer Chassidim’s assertion is true only when nothing indicates that the storm is due to one specific person, and there is no sign that the lot shows the truth. However, were all the other ships sail smoothly and only one ship is suffering from a gale, it clearly indicates that there is someone aboard to whom the storm can be attributed. In this situation, even Sefer Chassidim (679) permits casting a lot to see who is responsible for it. Before casting the lot it is important to pray to receive a correct answer, just as King Shaul did. The results of the lot can be seen as true if the same results appear three consecutive times. Sefer Chassidim adds that if there are non-Jews on the ship, they should be the ones to throw the offender into the sea, and even then not directly into the waves — he should be provided with a lifeboat or barrel to give him a chance to survive.
The Rama rules (YD 157:1) that if a group of people were caught by enemies, and, while they can kill the entire group, they say they will only kill one person chosen by the group and then free the rest, handing over one person is forbidden. However, the Tiferet L’Moshe (YD 158) and Pischei Teshuva (YD 157:13) write that the prohibition is only for the group to choose one person to die. However, a lot can be cast between the members to determine who should be handed over in order to preserve the lives of the entire group.
The Baruch Ta’am attributes this conclusion to the above-mentioned Sefer Chassidim. However, the Knesses Hagedola (CM 173:3), Chaderi De’ah (157), and Chazon Ish (YD 69:1) wonder how this could be possible since only lots cast according to Ruach Hakodesh and prophecy can be relied upon, not lots that we cast today. Evidence for this is that we find in the Tosefta and Yerushalmi (on which the Rama based his ruling) that they should all be killed and not hand over one person – if casting a lot between the members is the simple solution, why would they have mentioned the prohibition to hand one person over? It should have been written to simply cast a lot and save the rest of the group?
The Chazon Ish answers that a lot can be cast only where one person expresses his willingness to die so the rest of the group lives. Since he will die in any case, the lot can be used to save the rest.
The Chazon Ish adds that it must be done only if they all agreed to cast the lot, because in this case the one who came up has already expressed his willingness to die for the rest. However, if one of them insists his name not be entered into the lot, placing his name there against his will is halachically forbidden, even if all will die as a result.
Halachically Valid Lots
The Knesset Hagedola (CM Beis Yosef 173:4) maintains that a lot can be used to divide possessions only if all the portions are equal. However, a lot to determine who gets one portion and who two does not work. For this reason, the he-goats in the Mikdash on Yom Kippur had to be the same in every way, because any difference in the items being divided nullifies the lot. However, the Choavos Yair (chapter 61) maintains that lotteries are permitted: every party puts down a sum of money and one winner gets the entire sum. Nevertheless, even this raffle must be drawn according to halacha.
Settling a Din Torah
The Chadrei Deah (chapter 157) writes that Chazal never rely upon a lot for determining monetary halacha (unless it was done via prophecy). Therefore, where the Dayan cannot pass his ruling, chazal instituted specific halachos such as shuda de’daina (“the Judge is certain”) and others to assist the judge in issuing a ruling where all other halachos are inapplicable. Even where it’s impossible to know who’s right, a Dayan cannot rule based on lots.