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By Dayan Dovid Grossman | Rosh Bais HaVaad, Lakewood
Among the many Minhagim of Hanukkah there are various forms of entertainment gambling. In Eastern Europe, card playing on Hanukkah was a traditional pastime for adults, while the children spun the Dreidel. Many associate this custom with the fact that when the Greeks searched Jewish dwellings for those studying Torah, the Jews would pretend to play with Dreidels, dice or cards, thus sparing their lives [1].
Despite the fact that gambling, in all of its forms, was frowned upon – if not actually forbidden – by our Hachamim throughout the ages, Hanukkah and this type of entertainment gambling became an accepted part of the Hanukkah celebration in many Jewish communities over a millennium ago. We will discuss the various forms of “accepted” gaming and offer some possible explanations and leniencies.
Asmachta Fundamentals
The Mishna in Sanhedrin 24a lists those whose testimony may not be accepted in Bet Din. The list includes a “Mesahek B’Kubya” – lit. one who plays with dice. The Gemara brings two reasons why the testimony of a Mesahek B’Kubya is invalid:
According to Rami Bar Hama, gambling in this manner is a form of Asmachta – lit. a reliance – and is therefore not a valid Kinyan (means of acquisition). Consequently, any money acquired through such activity is considered stolen thereby classifying the winner as a Rasha (evildoer) and invalidating him as an acceptable witness.
Rav Sheshat argues that the problem is not one of Asmachta, and that a one-time act of gambling is not prohibited. The problem with the Mesahek B’Kubya is that a gambler is not “Osek B’Yishuvo Shel Olam” – meaning that he does not support himself as a normal member of society would, and therefore his value for money is distorted, disqualifying his testimony in Bet Din.
The obvious difference between these two opinions is whether one may engage in casual gambling, such as playing Dreidel. According to Rami Bar Hama that the winner has committed an act of theft, it might be prohibited even on a one-time basis. However, according to Rav Sheshat, the prohibition is merely to make a livelihood in this manner, but playing Dreidel, buying a lottery ticket, or participating in a Chinese auction would be permitted.
Sefaradim vs. Ashkenazim
As a matter of Halacha, Maran [2] follows the opinion of the Rambam and other Sephardic Poskim who seem to rule like Rami Bar Hama. Whereas the Rosh, the Remah, and other early Ashkenazi Poskim are lenient in accordance with Rav Sheshat.
Although there is a debate as to what was the exact position of the Rambam, Hacham Ovadia Yosef זצ”לin Yabia Omer [3] – following a long discussion – concludes that Sefaradim may not purchase lottery tickets in Israel [4] (and most certainly “sports tickets” which are played on Shabbat and support Hillul Shabbat, rendering the purchaser a mesaye’a yede avre avera – assisting a transgression). Hacham Ovadia adds that even Ashkenazim may be prohibited engage in such activity. Interestingly enough, the Hafetz Hayim in Mishna Berura [5] also rules that it is prohibited to be Mesahek B’Kubya [6].
Not all gambling is created equal, however, and although the complexities of this Sugya are beyond the scope of this article, we will examine some of the scenarios that the Poskim discuss and determine whether we can salvage some of the Hanukkah gambling Minhagim.
Are Auctions an Asmachta?
It is important to note, that although the Poskim discuss auctions extensively, many of the major Teshuvot on this topic do not even bring up the problem of Asmachta. Most notably, the Havot Ya’ir [7], from the leading Poskim of Ashkenaz in the 17th century, discusses an incident where twelve of his students auctioned off a large goblet during their Purim party. Each student paid for a ticket to enter the auction, and whosever ticket would be drawn to match a ticket inscribed with the words “Mazal Tov” would win the goblet. The winning ticket was chosen right away, however – upon inspection – the students noticed that only eleven tickets were actually placed in the pot! Also, the words “Mazal Tov” were written on two tickets instead of one.
The Havot Ya’ir reasons that a goral (lottery) is pre-destined from above, and therefore rules that any discrepancy with the function of the goral would invalidate it. The Poskim point out that the Havot Ya’ir does not even mention the issue of Asmachta, implying that for some reason he felt that it would not be an issue in this case.
Similarly, Rav Yisrael Meir Mizrahi (Salonika, 17th century) in Teshuvot Pri Ha’aretz [8] was asked about a Sofer who having difficulty selling a Sefer Torah. He devised a plan to sell lottery tickets and auction off the Sefer Torah. The winner would receive the Sefer for a small fraction of its true value and the Sofer would be fully compensated for his hard work. Rav Mizrahi rules that there is no issue of Asmachta and that such an auction is permissible and binging according to Halacha.
The Difference between Auctions and Playing Dreidel
Why don’t these Poskim subject auctions to the issues of Asmachta? The Ben Ish Hai in Teshuvot Rav Pe’alim [9] suggests, that in the classical case of Asmachta the winner walks away with the loser’s item. If the loser did not willingly relinquish the item, then the winner is acquiring it through a form of gezel. On the other hand, in the case of an auction, the owner of the item will happily deliver the prize, as he has been already fully compensated by the money that was collected for the auction.
In addition, some permit purchasing lottery tickets because the money is given in advance. There are two explanations suggested in the Aharonim for this heter. One is that it is viewed as if the consumer purchased a sellable item. Since the ticket (in many cases) can be resold to others, it therefore has a real value. Others cite the Halacha that an Asmachta is valid if it acts to merely absolve an existing obligation. Being that the money is already in the hands of the recipient, there is an elevated level of Gemirut Da’at (willingness to transfer ownership).
This is all true in regards to auctions. However, when one plays Dreidel, backgammon or other card games, the money being played with has not yet been given, and the loser may regret losing his money. These heterim would therefore not apply.
Playing for Tzedakkah, or with Friends and Family
Rav Moshe Shternbuch Shlit”a in Teshuvot V’Hanhagot [10] writes that since the primary concern with Asmachta is that the loser will lack sufficient Gemirut Da’at and will not willingly transfer ownership to the winner, when playing to benefit Tzedakkah this is not a concern. Since the loser is doing a Mitzvah by giving the money, we can assume that he is willingly giving up his loses. Some suggest [11] a similar heter when playing with small denominations, and as a casual Hanukkah game with friends and family. Since it is in the spirit of the day, everyone involved surely relinquishes their rights to any money they might lose.
Other Heterim for Dreidel Playing
There are a number of heterim that can be used to ensure that these issues are definitely not a problem. Some suggest that playing on a table that belongs to all of the participants would be permitted. This is based on the Halacha that if the table being played on belongs to all of the participants, all “bets” that are placed on that table are binding, because the placing of the money on the table is considered a bona-fide transfer of ownership interest to the winner. Another option might be for someone to “sponsor” the money and communicate that they will retain ownership until the end of the game.
Elevating the Game
While these suggestions are not necessary according to many Poskim, let us take the game for a spin, using it as an opportunity for a quick lesson in Hilchot Asmachta and elevating it into a lively Torah discussion!
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Footnotes:
[1] ספרי המנהגים [2] חו”מ סי’ ש”ע ס”ב [3] ח”ז חו”מ סי’ ו’ [4] הנמכרים ע”י מפעל הפיס [5] שכ”ב סקכ”ב [6] אף דקצת תימה על שסתם לאסור ולא תולה דבריו דווקא לאלו שהולך אחר דעת המחבר. אולם בשעה”צ אות כ”א כ’ בזה”ל “רמב”ם בפכ”ג”, עכ”ל. ואם כוונתו דרק לדעת הרמב”ם אסור, צ”ע למה סתם ולא פי’. [7] סי’ ס”א [8] ח”ב סי’ ט”ו [9] ח”ב חיו”ד סי’ ל’ [10] ח”ד סי’ שי”א, ע”פ הרמ”א סי’ ר”ז סעי’ י”ט. [11] נטעי גבריאל הל’ חנוכה בשם הרבי מצאנז.