Halachic Musings

By Rabbi Yair Hoffman

“How could you have voted against renewing the rabbi’s contract? He visited my mother when she was in the hospital and took such good care of her! She adored him. He buried your father! He bar mitzvahed all three of the kids. Husband, have you no shame?”

“Yes dear, but the other shul is growing more and more popular. If our shul is to continue to survive, we need to bring in someone younger and more dynamic.”

The above conversation has taken place in one form or another all over the country, throughout the centuries, and across continents. Jews, however, have always turned to halachah for guidance in all matters. Is there halachic guidance about renewing the contracts of our providers of halachic guidance?

The Rema. The Rema in Yoreh Deah (245:22) tells us that if a person has been established as a rabbi in a community, he should not be removed from his position–even if someone greater has come. This is based upon a responsa of the Rivash (271). Indeed, the Rema explains that the rabbi’s son and grandson will always have precedence over another. The Rema qualifies this last point, saying that it applies only when they [the descendants] fulfill the position in a G-d-fearing manner, and when they are at least somewhat scholarly.

From what the Rema writes so far, it would appear that the wife is correct and the husband is in deep trouble, not only with his wife, but with the Shulchan Aruch too.

Luckily for our hapless husband, the Rema continues (we will call this Part II):

He writes that (A) in a place where there is a custom to accept a rabbi for a certain period of time or where it is the custom to choose whomsoever they wish, “Hareshus b’yadam–they have that permission.” He further writes (B): “But if the congregation accepted him upon them . . . no one else may come and be on top of him or remove him.”

Seemingly, if the custom is to have contracts for specific lengths and terms, then they may do so and hire another rabbi. So it would at first seem that the husband would have been permitted to vote not to renew the rabbi’s contract.

Aruch HaShulchan. But things are not always what they seem. The Aruch HaShulchan writes (Y.D. 245:29) that even though the rabbi was only hired by the town for a certain number of years, nonetheless, they may never fire him.

There are some poskim (Ohel Moshe C.M. 26) who understand that this is the intent of the Rema, since Part II B of the Rema seems to contradict Part II A. How so? Part B seems to clearly be addressing a city where the custom is to allow hiring for specific periods of time. If so, what is this further qualification?

These poskim state that the new rabbi may not take over the income-producing aspects of the job that the previous person had. He may, however, take new ones (see Ohel Moshe).

Chasam Sofer. The Pischei Teshuvah C.M. 333:6 (at the end) cites a responsum of the Chasam Sofer, who writes that the contract terms are for the benefit of the rabbi, but not for the congregation–that is, they may never fire him, but he may leave at the end of the stipulated period if he so wishes. [He also writes that the reason for the contract years in the first place is to avoid the appearance of slavery.]

If the rabbi behaves incorrectly. Of course, this is only when the rabbi has not stumbled terribly or behaved against Shulchan Aruch. There is no doubt that if the rabbi is ordering pizza from Mamma Leone’s in Manhattan, he can be dismissed–even within the contract term.

Rav Shlomo Eiger (Yoreh Deah 245 in his Hagaos) writes that when the rabbi is performing his function in a grossly improperly manner, then he may also be removed, but only after warning. He writes that if the beis din did warn him and he scoffs at the warning, then he should be removed. This view is also found in the responsa of the Meishiv Davar (Siman 10) that if a beis din is convinced that he is functioning in his position in an irreverent and mocking manner, he is to be dismissed.

The idea may seem somewhat counterintuitive to the reader–that the rabbi cannot be dismissed even after his contract expired and has an implicit lifetime contract, so to speak. Nonetheless, the import of the Gemara in Brachos 28a is clearly in accordance with this notion. There, Rabban Gamliel was dismissed by the academy because of his inappropriate back-and-forth with Rabbi Yehoshua. Rabbi Elazar ben Azariah was hired in his stead. Yet when Rabban Gamliel was reinstated, they could not merely dismiss Rabbi Elazar ben Azariah. They thus retained him for one week out of the month, as the Gemara clearly states there.

Why the implicit lifetime understanding? What is the rationale for this lifetime-contract understanding? It seems that there is a three-way debate as to the source of this notion. We will examine all three views, that of the Rambam, the Mabit, and the Rivash.

The Rambam (Hilchos Malachim 1:7) writes that it is based upon a verse in Devarim (17:20) that a position of leadership is one that should continue. Although the verse clearly refers to a monarch, the Rambam writes that it refers to all leadership positions in Israel. The Ritvah in Makos (end of chapter two) concurs with this view, which is based upon the Sifrei on that verse regarding the words “B’kerev Yisroel.” So, succinctly, the Rambam’s reason is that leadership needs to be empowered and the Torah extended this to the rabbinate as well.

The Mabit (Volume III #200) writes that one may not fire the rabbinic leader as a kal vachomer (a fortiori argument) from the fact that since it is a position that he may bequeath to his son, it is a kal vachomer that it may not be removed from him against his will. The Mabit seems to understand it as a right that is owned by the rabbi, very similar to a civil right.

The third opinion is found in the responsa of the Rivash (#271). He writes that this rule is on account of the principle of ma’alin bakadeish v’ein moridin (see Shabbos 21b)–we only lift up things in matters of kedushah and we do not lower. This view is also espoused by the Vilna Gaon (Y.D. 245:39). This third reason deals with issues of kedushah–holiness.

Our hapless husband, it seems, is clearly in trouble.

Three counterarguments. But does he have no leg to stand on whatsoever? Barring some untoward or unseemly activity on the part of the pulpit rabbi, are there no other grounds on which he can be dismissed?

There may be an alternative method to resolving the seemingly contradictory clauses in the Rema. It could be that the Rema is saying in Part II B that even though the congregation has accepted upon themselves this lower status of a rav, one with only a set time, do not think that this can give others license to come into town and compete with the rav in any manner. He is still considered to be a full-fledged rabbi–notwithstanding the fact that there is a set limit to his term. Thus far, however, this author has not found any of the Achronim that read the Rema in this manner.

One can also make an argument that the Aruch HaShulchan and the other Achronim cited earlier were discussing the situation in Europe, where the prevailing minhag may have been never to discontinue with a rav even if one had contracted for a set period of years. Here in America, one can perhaps argue that the prevailing custom is to follow contract law and, sometimes, not renew the contract. So it could very well be that things are different in America.

Finally, we find that Rav Shternbuch (Teshuvos v’Hanhagos Vol. II #722) makes a qualitative distinction between a rabbi who takes the mantle of psak halachah on his shoulders and teaches Torah to the masses (as has been the role of a rav in Israel from generation to generation) and a rabbi whose main purpose is to speak at funerals, weddings, and bar mitzvahs, and speak in shul on Shabbos and holidays. Rav Shternbuch writes that it should be comparable to the citation of the Yerushalmi: “Av Beis Din she’sarach ain moridin oso–An Av Beis Din who stumbled, we do not forcibly remove him.” He writes that the rabbi must be somewhat comparable to an Av Beis Din in terms of his ability to rule.

Nonetheless, he concludes that even someone who does not fit into that definition per se should be treated with respect and not be dismissed until he finds some other suitable and respectable position.

Whatever the case may be, the rabbi and the congregation should come to a mutually acceptable accord, for all three reasons mentioned above–that leadership should continue in Israel, that it is something belonging to another that cannot be taken away, and that we only lift up things in matters of kedushah and we do not lower them. v

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