Paul L. Caron

Sunday, April 28, 2024

'Friendly Gentile' And Jewish Law Profs, A Rabbi, And A Passover Contract

ABA Journal, How to Rid House of Leavened Products During Passover? Mormon Law Prof Has Contracts for That:

Passover ContractA professor at the William & Mary Law School was acting as a “friendly gentile” when he helped draft contracts to purchase unused leavened foodstuffs and lease its storage locations from members of another law professor’s synagogue in suburban Philadelphia.

Law professor Nathan B. Oman is a practicing member of the Church of Jesus Christ of Latter-day Saints. He doesn’t drink alcohol, but the legal documents gave him short-term ownership last year of congregants’ whiskey and other leavened products, along with “a lease on a very nice apartment in Jerusalem,” he wrote in January for Wayfare magazine.

Oman’s specialties include contracts and law and religion. The other law professor, Chaim Saiman, is a scholar of Jewish law at the Villanova University Charles Widger School of Law.

The Salt Lake Tribune caught up with Oman after he drove about six hours each way to repeat the contractual exchange with Saiman’s rabbi in advance of Passover, which began Monday evening.

Salt Lake Tribune, Why This Faithful Latter-Day Saint Drives Six Hours to Buy Liquor He Will Never Drink:

He will never see or taste the Oreos and half-eaten boxes of Cheerios he buys. He purchases them anyway to help a rabbi friend honor his faith.

For the second year in a row, lawyer Nathan Oman drove roughly six hours each way to buy a whole lot of liquor that he, as a practicing Latter-day Saint, will never drink.

And half-eaten loaves of sandwich bread. And opened boxes of cereal. And what he estimates are probably hundreds of pounds of other leaven-containing foods — they are all his for the next roughly two weeks.

He does this in preparation for Passover, a holiday he does not celebrate. And that’s precisely the point.

According to Jewish law, no amount of yeast, sourdough or baking powder — leaven — is allowed in one’s home during the week of Passover, which began Monday evening, as per the biblical Book of Exodus. Across the globe, the days leading up to the holiday are marked by furious cleaning and bonfires of leavened products for the observant.

But what if you have a yeasty product — say, a really nice liquor collection — you’d prefer not to set aflame?

Jewish law has a plan for that. Rather than burn it, one can sell it to a friendly “gentile” willing to take legal ownership over it for the duration of the holiday.

Oman’s Orthodox Jewish friend didn’t have to ask him twice.

“I was fascinated,” he wrote in a story published by Wayfare magazine, “by the idea of contracting around divine law.” ...

Oman, a devout member of the Utah-based Church of Jesus Christ of Latter-day Saints, isn’t naive. He knows his interest in religion is out of step with a growing number of his fellow Americans. This apathy, more than any other factor, he believes, threatens the religious fabric in much of the modern world.

That’s why next year, when the weather begins to warm once more and the cherry blossoms bloom, you’ll find Oman piling the miles onto the family car, winding his way north to sign a contract for food he will never see, cupboards he will never open and booze he will never taste.

“I don’t think religious persecution is a big problem in the United States,” he explained. “I do think … it’s very easy to live your life in such a way that religion doesn’t matter. It doesn’t impinge on it, and you don’t really even remember that it’s there.”

By engaging in “weird rituals that you wouldn’t otherwise do and don’t have any purpose other than to acknowledge and comply with religious authority,” Oman is doing his best to swim — or drive, as the case may be — against this stream of forgetfulness.

Wayfare Magazine:  Buying Jewish Whiskey, by Nate Oman (William & Mary; Google Scholar):

In a lovely spring garden in suburban Philadelphia, I handed cash and a handkerchief to my friend's rabbi. It was the first time that I, an observant Latter-day Saint, had ever purchased whiskey. For the next two weeks, however, I would own a large store of booze, along with a number of half-used boxes of breakfast cereal, and a lease on a very nice apartment in Jerusalem. At the suggestion of my friend Chaim Saiman, I had agreed to act as a friendly Gentile, purchasing the unused chometz (leavened foodstuffs) and its storage locations that the members of his synagogue were prohibited from owning during Passover. At the conclusion of the holiday I could, if I so chose, sell the whiskey back to its original owners.

As law professors, Chaim and I share an interest in jurisprudence, law and religion, and contracts. As observant believers, we are both fascinated by the place of religion in the secular world and the way that adherents manage the negotiation between tradition and modernity. The result has been a years-long running conversation on law, contemporary politics, faith and commerce, and, inevitably given Chaim's dual training in yeshiva and law school, halakhah, the vast corpus of Jewish law. When Chaim explained to me that at Passover it was possible to avoid the need to dispose of one's whiskey and other valuable chometz by selling it for the duration of the holiday to a Gentile, I had a new ambition. Legal scholars have long studied how parties use contracts to bargain around troublesome rules. I was fascinated by the idea of contracting around divine law. When I explained to another friend and faculty colleague why I was driving from southern Virginia to Philadelphia in the middle of the week, he said, "Law, religion, and contracts. It's like a religious ritual specifically designed for Nate Oman."

As I understand it, the legal basis for my trip to the Pennsylvania garden begins with Exodus 12, which describes the first Passover and sets forth the rules to be followed thereafter. In verse 15, the text reads “Seven days you shall eat unleavened bread. On the first day you shall remove leaven out of your houses, for if anyone eats what is leavened, from the first day until the seventh day, that person shall be cut off from Israel.” The exposition of this rule in Jewish law begins with the earliest halakhic text, the second-century CE compilation known as the Mishnah. The rabbinic debates recorded there explore the contours of the rule in Exodus. To ensure compliance, the house must be scoured for chometz with a candle, and all leavened products burned. To deal with any residual chometz, one must go through the legal ritual of disclaiming ownership, declaring that the chometz is now dust and therefore owned by no one. The debates in the Mishnah were then subject to further commentary and debate in the Talmud. The Talmud in turn has been continuously analyzed and systematized, such as in the Mishnah Torah of Maimonides, a process that continues unabated to the present. When must the ritual search for chometz begin? What constitutes chometz? (For example, alcohol distilled from grain was brought within the prohibition.) And so on, a thousand debates on each issue over the centuries. As I understand it, the well-established consensus among Orthodox exegetes is that an observant Jew is not allowed to own any chometz during Passover, nor can chometz be stored on the property of a Jew. Centuries ago, however, a problem arose for Jewish distillers. They owned large amounts of chometz, but government regulations made it difficult to simply destroy their stock for Passover. Thus was the workaround of the sale to a friendly Gentile born, a workaround gradually expanded to all of those who wished to avoid burning valuable chometz every spring.

While seemingly baroque to a non-believer, the layering of these rules over the centuries illustrates a basic structure of the religious condition. To be a believer in the modern world is to live in a strange land. It is not that modernity is relentlessly hostile to faith. It is far easier for minority religious communities to live faithfully in contemporary liberal democracies than in any other kind of regime in human history. Our society, however, is not constructed around religious faith. As the Catholic philosopher Charles Taylor has pointed out, secularity isn't so much a society from which faith has been extracted as one in which faith is optional. Within secularity, faith is contingent in a way that it wasn’t for previous generations both because of social pressure to religiously conform and because, in a real sense, a life without faith was unthinkable. Most people simply lacked the necessary conceptual machinery to consider a world without the God of their fathers. Secularity is the loss of that sense of necessity and the construction of a social world that aspires to be indifferent to religion. A believer, however, lives in a world where the reality of God continues to sit at the center of existence. The mismatch of the world of belief and the world of secularity constitutes the experience of faith in modernity. ...

There are, of course, limits to bargaining around God's commands. A law that collapses completely into fiction is terminally ill, but judiciously used legal fictions create a suppleness that allows one to bend without breaking, change without forgetting. This is precisely the challenge of secularity. A world in which religion is optional is one in which it can be forgotten. The threat to religious survival in secularity is less the polemics of the irreligious than the indifference of those who have forgotten how to be religious. 

The danger of Christian or Mormon strategies of evolution is that they lend themselves to forgetting. Protestant Christianity can exalt a subjective encounter with the spirit in a way that can all too easily dissolve into subjectivism. The idea of continuing revelation, on the other hand, tends to render every Latter-day Saint claim to authority contingent, gnawing away at its own foundations in a way that risks the collapse of the entire tradition. There are virtues to ritual, formality, and fiction that both traditions would be wise to find ways of cultivating. The very oddity of selling Jewish whiskey to a Latter-day Saint makes the forgetting of tradition impossible. It’s part of the genius for change without forgetting that has made the survival of Judaism possible in a world that for Jews has been secular since at least the destruction of the Second Temple in 70 CE. A healthy respect for and fascination with that success, along with my friendship with Chaim, led me to the garden in Pennsylvania and will, I hope, lead me to buy more Jewish whiskey in Passovers to come.

Next year in Philadelphia!

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