Gambling In the Eyes of the Torah

...and the Festival of Chanukah

By: Rabbi Moshe Taub

 

Originally Published in AMI Magazine

 

 

“For she has felled many victims, and the number of her slain is enormous” (Mishlei 7:26).

 

The above verse is how R’ Yitzchak Ben Sheshes Perfes (d. 1408) described the dangers of gambling and its pull toward criminal activity and addiction, regardless of whether or not it is deemed permissible by the letter of the law (shu”t Rivash 432).

 

Gambling is not a new topic to halachah. In fact, the very word “gamble” may have its roots in the Hebrew language. The word is derived from the Middle English “gamel,” which is also the root of the English word “game.” It is perhaps not a stretch to speculate that the Hebrew letter gimmel, the winning marker in the Chanukah game of dreidel, led to the word “gamel,” which in turn evolved into “gamble.”

 

The objective of this short monograph is to give the reader a primer on the halachic view of gambling.

 

But what is gambling? Does buying a state lottery ticket, participating in a Chinese auction or playing dreidel fall under that rubric? What about “playing” the stock market?

 

To understand the Torah view of gambling, and how that term is defined, it is worthwhile to clarify an essential debate on this topic.

The Shulchan Aruch (Ch”M 370:2) and the Rama (ibid. ad loc and 207:13) disagree on the very nature of gambling and when it is prohibited. Based on a debate that goes back to the Gemara (Sanhedrin 24 ff.), the two arguments are as follows:

 

View 1: Asmachta

 

Gambling, like rolling dice (i.e., “craps”; Rambam in Peirush Hamishnayos on Shabbos 148b explains that kuvyai, dice rolling, is simply the generic term Chazal use for various forms of gambling), invokes a very real monetary issue. That issue is known as “asmachta.”

 

The halachic concept of asmachta is broad and has ramifications far beyond gambling (see Pischei Hachoshen 8:21:1-12 at length), but for the purpose of our discussion the following explanation will suffice:

 

In order for an exchange of title to take place between Person A and Person B, there must be a realistic agreement between the two parties and a relinquishing of their respective ownership. Rolling dice and similar games do not seem to have such a complete renunciation. When Person A puts his money down on a number or a color he is not, at that moment, relinquishing his funds. Indeed, he is hoping not only to get that money back but also to make more! He never really believed he would lose.

 

Accordingly, a Jew who gambles would be committing some form of theft by taking his winnings (if this is Biblical or Rabbinic, see Bach siman 207:16; the Ktzos ad loc #1; Magen Avraham Oh”Ch siman 441:2; see also Shulchan Aruch Oh”Ch siman 322 for how this would effect certain laws of Shabbos. Cf. Tosfos Shabbos 149b s.v. “mei.”)

 

To demonstrate how far-reaching the rule of asmachta is, consider the following interesting example. Rav Zevin, z”l, in his much-celebrated Leor Hahalachah (p. 310) includes a fascinating essay on Shakespeare’s The Merchant of Venice. In the play, the Jewish character, Shylock the moneylender, makes a deal with Antonio to lend him money on condition that if he fails to pay him back, he is permitted to take a “pound of flesh.” (Many believe that this fictional work has contributed to much anti-Semitism in the world.) Asks R’ Zevin, would Shylock win the support of a beis din for such a condition?

 

In a lengthy opening footnote, R’ Zevin explores the parameters of asmachta and whether such a strange and painful stipulation was ever truly intended.

 

In summation: For a kinyan to take place, or an exchange of goods, the conditions must be both bound in reality and allow for a relinquishment of title. Winnings from gambling would therefore be deemed “stolen.”

 

View 2: Yishuv Olam

 

The Shulchan Aruch (Ch”M ibid.; see also siman 34:16) brings a second opinion that is supported by the Rama called “yishuv olam.” According to this view, gambling does not fall under the asmachta rule and is therefore not theft (see Tur); rather, the concern with gambling is a philosophical one. A person who gambles is not taking part in the human endeavor necessary to build, maintain and improve civilization (cf. Rambam; see Gra on Ch”M 203). In other words, “This is no way for a Jewish boy to earn money.” The Talmud is replete with laws derived from this and similar concepts, i.e., the need to play an active role in assuring a functional society. The Rama (ibid.) rules according to this view, and asserts that the minhag (among Ashkenazim) is that as long as someone has another job his gambling does not fall into this category. By no means should this be interpreted as indicating that the Rama and likeminded poskim condone gambling (see Rivash with which we opened), but rather that in order to characterize the act alone as forbidden, which would invalidate someone as a witness, certain conditions must be met.

 

As the Gemara notes, there is a critical distinction between Views 1 and 2. According to View 1 (asmachta), any single act of gambling is forbidden; according to View 2 only a perpetual player, and certainly one who has no other profession, would be in violation of the law.

 

We would be remiss not to add a caveat to the more lenient view. In this writer’s recent article in Ami entitled “The History and Halachah of Smoking” we discussed the issue of addiction in halachah. In a scholarly article entitled “Functional Imaging of Neural Responses to Expectancy and Experience of Monetary Gains and Losses,” Dr. Hans Breiter of the Massachusetts General Hospital shows that people who are addicted to narcotics and those who are addicted to gambling have similar brain activations.

 

Furthermore, the issue of taking on a new addiction or a new demanding pleasure is discussed elsewhere by Rav Moshe (Y”D 3:35), and he is indeed very strict.

 

The negiyus of an addiction is so profound that it causes one to wonder if the addict himself should be the one to decide if his addiction of choice is halachically acceptable. (See, however, the amazing words of the Chazon Ish in Emunah Ubitachon 3:30, quoted in Shaarei Ahron on Devarim 16:19, where he explains that halachah often does allow a person who has a stake in a psak to be its arbiter.)

 

[For a wonderful treatment of this topic and on addiction in general, see Judaism and Psychology by Moshe HaLevi Spero, Ktav Publishing, Yeshiva University Press, 1980, pages 120-141.]

 

With the above in mind, let us consider the halachah in many common examples.

 

Dreidel and Lotteries

 

Rabbi Dovid Grossman of Bais HaVaad of Lakewood points out that buying a lottery ticket may not be a concern even according to View 1. Unlike actual money or chips on a table, a lottery ticket is an item that has been purchased. No one thinks he will ever get that dollar back. While he may hope to win something, the potential winnings are seen as a separate enterprise.

 

This is all the more true with a lottery for the benefit of a yeshivah, where the very act of buying a ticket is considered giving charity. Thus even those who view gambling as asmachta/theft may agree that in this case, the buyer does in fact relinquish ownership of his funds.

 

Furthermore, in Volume 1 of Mishptei Hatorah (R’ Spitz) the point is made that not only is a lottery not gambling, due to the fact that an item (a ticket) is being purchased, but that the ticket is only worth its cost in damages, regardless of whether it is the winning one (provided Person A destroys Person B’s ticket before it was announced as the winning one)!

 

Every winter Motzoei Shabbos I arrange an Avos U’banim learning program. Like most such programs, mine ends with a raffle. Is this a concern? Applying what we have learned above it is clear that this is not a concern. In fact, the raffle tickets aren’t even purchased; each child receives one upon entry. Issues of theft, therefore, do not apply.

 

In fact, every year during the week of Parshas Pinchas I share a fascinating teshuvah with my balebatim by the Chavos Yair (d. 1702) siman 61, where he discusses the rules governing lotteries and raffles (what if, after the drawing, one notices a ticket has been left out?), implicitly indicating that raffles are halachically permissible. The Shvus Yaakov (d. 1733) also enumerates the rules pertaining to raffles (refer to Pischei Hachoshen). Chavatzeles Hasharon on Bamidbar (page 882) even has a beguiling discussion of whether a goral (lottery) may be utilized when lives are at stake (e.g., whom to throw off of a sinking ship; see Sefer Chasidim siman 679; Margolios ed., with footnotes Mekor Chesed).

However, we must note that even the more innocuous lotteries and raffles are severely frowned upon if not deemed outright forbidden by Rav Ovadia Yosef, z”l, (shu”t Yabia Omer 7:6).

 

And what about Chanukah? Based on all of the above it would seem, at least according to View 1 (Shulchan Aruch), that betting with money should be considered theft!

 

The Chavos Yair (siman 126) cites the custom of playing games, even cards, on Chanukah. The Chofetz Chaim (Biur Halachah siman 670 s.v. venohagin) warns us to stay far away from such activities (see also Aruch Hashulchan; cf. Minhag Yisrael Torah). Likewise, Rav Yechiel Michel Stern’s Otzar Hayedios quotes certain chasidic masters as saying that the gematria of “cards” is the same as “Satan!”

 

Others, however, ascribe great significance to some of these “Chanukah games.” For instance, the Bnei Yisasschar points out that the “gimmel,” “nun,” “shin” and “hei’ of the dreidel stand for the four powers of man: gufani, nafshi, sichli and hakol (physical, spiritual, intellectual and all-encompassing); they also share the same gematria as Moshiach (Piskei Teshuvos, ibid.)! In fact, the Chasam Sofer sought to participate in such games on one night of Chanukah.

 

The previous Klausenberg Rebbe and others have explained why this is not considered halachic gambling:

• These rules are relaxed by family gatherings (see Oh”Ch 322).

• Regarding small sums of money, people do not care and/or easily relinquish their title so there is no issue of asmachta (see Hilchos Ribbis Y”D siman 170 and Rabbi Reisman’s The Laws of Ribbis page 33 ff).

• Based on the Rama (siman 207), placing all the money on the owner’s table may sometimes eliminate issues of theft.

• These games are not what they once were, nor do we fear the encroachment of professional gamblers, so we can be lenient.

 

This last view, citing a change in the times, found in the writings of an Acharon of the previous century (Rav Y.C. Sonnenfeld), would need to be viewed in light of today’s realities, where we do find a return to professional gamblers and casino playing becoming more normative.

It would be advisable that the winnings of such games be donated to tzedakah.

 

Points Not Covered

 

What did the meraglim do wrong? Is forbidden to say, after a trip to Eretz Yisrael, that the weather was hot? Indeed, many of the major infractions found in Chumash are not cited in the Shulchan Aruch. Sometimes a focus on halachic issues blinds us to the concept of “kedoshim tihyu” (“you shall be holy”), the “fifth Shulchan Aruch.”

 

Casino gambling is not just a form of gambling, nor is it “only” an addiction. It is broken marriages, pritzus, debts and much ye’ush (despair).

The Shulchan Aruch is but one, albeit essential, element of our deveikus with the Ribbono Shel Olam. Indeed, searching for halachic sanction can be its own form of procrastination from doing what we already know is right in the eyes of Hashem.

 

As many Rishonim and Acharonim teach, non-Jews are enjoined to keep not only the Seven Noahide Laws, but also any additional laws that are based on simple human seichel like kibbud av va’eim. We must then conclude that Jews are also obligated in commonsense issues that are not necessarily found in our codes (see the Netziv’s haskamah to Ahavas Chesed by the Chofetz Chaim; Rabbenu Nissim Gaon’s hakdamah to Talmud; cf. Derech Sichah, Vayeitzei, with Midrash Rabbah, beginning of Lech Lecha.)

 

When I was in the 11th grade I approached my rebbe, Rabbi Shmuelevitz, and proclaimed, “If only we had ‘veyo’atzeinu kevatechilah’ (the prophets and advisors we daven for in Shemoneh Esrei, yearning for the times of Moshiach), then I would know what to do with my life.”

His response was a broad smile and the comment. “You already know what’s right, but now you now want to blame it on the galus!”