By Rabbi Yair Hoffman
It is something that perhaps every resident of New York City and the surrounding area has experienced. You park on a public street and you do not have your wallet or credit card to put in those new meters. Or you are parking next to an old meter and do not have a quarter. You decide to take care of your business without putting money in the meter — a risky venture – true.
The question is, however, is this act a violation of halacha? The Torah tells us not to steal. Does parking at a meter without paying for it constitute halachic theft? If so, who are we stealing from? Do citizens have a right to the free use of streets? If not paying for a meter is not considered theft, what then is its legal status?
The Gaon Rabbi Zalman, author of the Rav Shulchan Aruch (Laws of Hefker and Hasagas Gvul paragraphs 2 and 3) writes that although all natural resources started off as free — once they belong to a kingdom or country they belong to it. The laws of that country then are to be considered as law. Thus, the GraZ writes, if hunting or fishing are prohibited, one who does so against the law is in violation of stealing. It seems clear that all public rivers, lands, and streets are, in fact, the property of the government.
The VaYatzav Avrohom (Siman 178, a Posek in Bnei Brak, Israel) writes that regarding traffic fines and parking fees, it seems that it is the municipality, however, which is the authorized body that can collect these fees. They are appointed to this position by the government. He cites the Talmudic debate found in Bava Kamma 113a as to the legal status of avoiding a fine levied by a municipality.
Before one expounds upon the actual halacha, however, it is important to discuss two important and fundamental concepts in Yiddishkeit.
The first idea is to be able to differentiate between two areas of halacha. There is the area of “Lifnim Mishuras HaDin” — going above and beyond the letter of the law, and the actual halacha — the strict letter of the law. It is not so well known, but Jews are obligated to go beyond the letter of the law in their observance of Mitzvos. The Talmud (Bava Metziah 16b) says that the verse in Dvarim, “And you shall do what is just and good” is an admonition to go beyond the letter of the law.
One might of course ask — if indeed there is such an obligation, why then is it beyond the letter of the law? It becomes the actual law in such a case! The answer that one of my Rebbeim Rav Dovid Kviat zt”l provided to me once is that we are not always obligated to go beyond the letter of the law in every circumstance. There is just a general obligation to go beyond the letter of the law when and if we feel we can — but it is not a constant obligation.
The second concept is to know that halacha must really be understood as a minimal code of conduct — rather than as an absolute moral code. Something could be permitted, technically, but it is not necessarily the right thing to do. Many people call this notion “the Fifth Shulchan Aruch,” while others see it as the Torah’s way of encouraging moral growth. In other words if the entire scope of our moral and ethical development was entirely dealt with within the rubric of the four sections of Shulchan Aruch alone — then where would the struggles toward ethical and moral perfection and Dveikus Bashem fully lay? In order to fulfill uvacharta baChaim — there must also be the element of choice — one that lies beyond the minimum of halachic observance.
We now go on to the law of the parking meter.
It is the halachic conclusion of the Remah in Shulchan Aruch (as seen in SA CM 389:6) that avoiding the possible incurrence of a fee levied by a party or agency that is not directly the government is not an actual violation of theft, but rather to be considered “avoidance of an indebiture” which, although may not be a moral thing to do — does not qualify as actual theft. The Vilna Gaon in note 23 cites the RaN in ruling even more leniently than the Remah.
Plugging it back into our case, one is not considered a thief if one does not put the money into the meter. The actual morality of doing so, however, may be questionable. It also may not be the smartest idea on account of the hefty fines associated with such risky behavior as well.
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