January 2, 2022

Rosh Hashanah 22

Having discussed some laws relating to testifying about a new moon, the Mishna (Rosh Hashanah 1:8) in today’s daf (Rosh Hashanah 22a) – paralleling Mishna Sanhedrin 3:3 – informs us that a משחק בקוביא, meaning ‘someone who plays dice’ but also including those who engage in other games where money is gambled (see Aruch Hashulchan on Choshen Mishpat 370:5) are disqualified from serving as witnesses and, as Mishna Sanhedrin adds, also from serving as judges.
Significantly, there is a disagreement elsewhere in Gemara (Sanhedrin 24b) as to the reason for this disqualification. Rami bar Chama’s opinion is that dice playing involves an “Asmachta” which is a conditional offer to pay money, made with the conviction that the condition will not come to pass. When one bets money on dice, an individual genuinely believes that they will win, and hence if they lose, they give up money they never intended to part with. Therefore, the winner of the bet is taking money not rightfully theirs and that money is considered ‘Gezel Mid’rabanan’ – Rabbinically stolen (i.e. though not classified as stealing according to Torah law, this is nonetheless classified as stealing according to Rabbinic law).
Contrasting this, Rav Sheishet argues that משחק בקוביא is not classified as Asmachta. This is because when someone gambles, they realize at the outset that there is a chance that they will lose, and therefore, by nevertheless gambling, they already assume such a risk. Given this, why – according to Rav Sheishet – is a משחק בקוביא disqualified from testifying and serving as a judge? He answers that this is because someone who engages in such activity is not involved in יישובו של עולם i.e. an activity or a profession making a constructive contribution to society.
It is clear that the Rambam (Hil. Gezeilah V’Aveidah 6:7 & Hil. Eidut 10:4) and the Shulchan Aruch (Choshen Mishpat 34:16 & 370:2) follow Rami Bar Chama and are of the opinion that gambling is rabbinically prohibited based on the theft prohibition – and that even when one is doing the gambling just for fun, a rabbinic prohibition is violated, while later authorities show sensitivity to the point raised by Rav Sheishet.
Significantly, while there have been those who have noted that the Rema (Choshen Mishpat 207:13 & 370:3) argues that when one has a profession and is merely gambling as a pastime, and in a situation where both parties agree that whoever wins takes the money, that gambling would then be permitted, they fail to point out that this does not take into consideration the fact that gambling is addictive and that, as a result of the fact that it can become an addiction, players can then put their job, their home and their life at risk. Beyond this, as implied by the Mishna Berura (OC 322:22), while playing with family may be considered acceptable, gamblers are often tempted to encourage others to gamble as well.
Overall, given that we are discussing witnesses and judges, having witnessed how gambling can have devastating effects on those who gamble and their families, and having seen how those who gamble regularly misjudge the risks they think they are taking, I believe that we should all be strict about משחק בקוביא in all its forms – both in person and online – and that, especially now that we understand the incredible addictive risks of gambling, there should be justification and no place for gambling in Orthodox communities.
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