Betting – Is it permitted to make a bet and what is the Halacha if one did so, Must he pay up?

Betting – Is it permitted to make a bet and what is the Halacha if one did so:[1]

1. Background Halachos – The general gambling prohibition:

Some Poskim[2] rule it is forbidden to gamble [with a Jew] due to a Rabbinical stealing prohibition.[3] Other Poskim[4] rule there is no stealing prohibition involved in gambling even with a Jew, just as is the law by a gentile [as explained next]. (Nevertheless, even according to this opinion, there is a prohibition involved in doing so.[5]) [Thus practically, according to all opinions[6], it is forbidden to gamble either on Shabbos or during the week, and the dispute is only in regards to the severity of the prohibition. It is forbidden to gamble even on mere occasion, as a onetime occurrence, and not only when one does so as a hobby.[7] This prohibition is intensified if one does so as an occupation to support himself.[8]]

With a gentile:[9] There is no stealing prohibition involved in gambling with a gentile. Nevertheless, there remains a separate prohibition involved in spending one’s time involved in matters of nonsense, as it is not befitting of a person to deal with such matters. Rather, throughout one’s life he is to be involved in matters of wisdom and matters that contribute towards civilization.[10]

Definition of gambling: Gambling is defined as any game in which two players stipulate that the winner will receive such and such an item from the loser [whether it is money or an object].[11] Furthermore, it is considered gambling even if the items all belong to one person and he will distribute it to the winners of the game.[12] This applies even between family members.[13]

1. The law regarding betting:[14]

Making bets with each other is considered like gambling [and hence maintains all of the gambling restrictions stated above]. [This means that it is forbidden for one to make a bet with another person over money or an object. Nonetheless, the severity of the prohibition, and as to whether it is considered like actual rabbinical stealing, is subject to the debate mentioned above regarding gambling, with some concluding that it is considered Rabbinical stealing and others concluding that it is not considered like stealing although contains a slight secondary prohibition. Likewise, the statement of the Rama[15] [which Admur and others[16] qualify to not be considered an actual allowance and permissibility, as explained in the background] that it is customary to be lenient to gamble even with a Jew would apply likewise regarding betting.[17] Furthermore, according to all there would be a lesser severity of prohibition in betting with a gentile versus betting with a Jew, although this too would be under the prohibition of dealing with matters of vanity and for not being involved in productive activity.[18]]

Must one pay up if he lost a bet:[19] In the event that one transgressed and made a bet he may retract from the bet and not pay up the agreed-upon sum that would be paid if he lost, so long as the money has not yet been given to a third party[20] [and a validating[21] Kinyan[22] was not made[23], and the proceeds are not going to charity, as explained next].[24] [This applies, even if he already lost the bet. However, if he already lost the bet and gave the money to the winner, then the winner is not required to give it back to him, even if we were to hold that it is considered rabbinical stealing. Furthermore, even if the winner has yet to receive the money but at the time of the bet or later on the money was given to a third party to hold and distribute to the winner, then the winner receives the money and it is not in the power of the loser to retract from the deal. Furthermore, this applies even if they have yet to discover who has won the bet, nonetheless, once the money has been given to a third party, nobody can retract from the bet.[25]]

Proceeds to charity:[26] In the event that one [verbally[27]] promised to donate the money of his winnings to charity, then he may not retract from the bet [unless he performs Hataras Nedarim[28]].[29] [Thus, if for example one made a bet with another person that if his team wins the game then he will give X amount of money to the shul or charity fund, then he may no longer retract from the bet, even if he never gave the money to a third party to hold.]

During the kiddush after Shacharis in shul this past Shabbos after being comfortably inebriated [but not like Lot] I made a bet on the Kansas City Chiefs that they would win the Super Bowl by a large margin, and stated that if they do not win then I will donate $1000 to the Shul, and if they lose by more than a 20 point margin then I will give $5000 to the Shul. As you can imagine, I was quite anxious watching the game on Sunday  not knowing if I would have to make good on my bet, and I guess God had mercy on me but they only lost by 18 points thanks to some last-minute scores. Do I have to pay the $1000 that I pledged?

Yes. Although betting is forbidden, and we don’t require the loser to pay up if he lost unless a Kinyan was made, or the money was already given to a third party, nonetheless, in your case you must pay up as you pledged the losing amount to charity. While you may perform Hataras Nedarim to escape payment, I would recommend you not to do so and instead to pay up your pledge.

I had an argument with a colleague regarding a certain Halachic matter that I thought was written in a Sefer which we both did not have available to look at the time, and we both agreed that whoever is wrong will pay $100 to the other party. In the end, I was wrong. Must I pay?

No, as no Kinyan was made, and the money was not given to a third party, and it is a bet regarding a fact on paper, by which we rule that even if a Kinyan was made you do not have to pay up.

[1] Admur Gzeila Ugineiva 31; Areas in Talmud and Shulchan Aruch that the Issur of gambling is discussed: Mishneh Rosh Hashanah 22a and Sanhedrin 24b; Orach Chaim 322:6; Choshen Mishpat 34:16 [laws of testimony]; Rama Choshen Mishpat 207:13 [laws of Asmachta]; 370:2-3 [laws of stealing]

Background:

The Mishneh states that one who gambles is invalid for testimony. [Mishneh Rosh Hashanah 22a and Sanhedrin 24b] The Gemara in Sanhedrin records a dispute as to the reason behind this invalidation. Rami Bar Chama says the reason is because it is similar to stealing being that the loser never fully agreed to give him the money being that he was planning on winning. The fact that he said he would give the money if he loses is a mere Asmachta, which is a not legally binding promise of words, being that he did not intend to truly relinquish his money but rather to use it to win. [Nonetheless, even according to this opinion the winner is not considered a Biblical Gazlan/robber, being that he did not forcefully take the money from the loser. He is however considered a Rabbinical Gazlan. Rashi on Mishneh R.H. ibid; Machatzis Hashekel on M”A 422:8] Rav Sheishes however rules that the money is not considered stolen at all, being that it was not given as an Asmechta but as an actual acquisition to the winner. Nevertheless he is invalidated as a witness being that he is not involved in settling the world. The practical ramification between these opinions is regarding a gambler who has an occupation, in which case according to Rami Bar Chama he is still invalid, while according to Rav Sheshes he is valid. [Sanhedrin ibid]  Practically we rule like Rav Sheshes [Michaber 34:16; 370:3; Smeh 370:3; Machatzis Hashekel ibid; Rif; Rosh on Sanhedrin ibid] Nonetheless, even according to Rav Sheishes it is disputed as to whether there is a Rabbinical stealing prohibition involved in gambling, with some ruling that it contains an actual Rabbinical prohibition due to Avak Gezel and others ruling that there is no Rabbinical prohibition involved. Admur and other Achronim novelize that according to all opinions there is some level of stealing involved in gabling and the dispute is only as to what level. The following is a summary of the opinions: 1) Actual Rabbinical Gezeila. [Rami Bar Chama] 2) Not actual Rabbinical Gzeila but Rabbinically prohibited due to Avak Gezel [Rav Sheshes as rules Michaber ibid] 3) No stealing at all even Rabbinically, although it is slightly forbidden. [Rav Sheshes as rules Admur and M”A in their understanding of Rama] 4) No stealing at all on any level. [Simple understanding of Rama ibid]  

[2] First opinion in Admur ibid; Michaber Orach Chaim 322:6; Choshen Mishpat 34:16 [laws of testimony]; 370:2 [laws of stealing]; Rambam Gzeila 6:10; Rashi Rosh Hashanah 22a; Regarding opinion of Rambam: See Hilchos Gzeila 6; Eidus 10:4; Kesef Mishneh ibid

[3] The reason: This is considered Rabbinical Gzeila. [Michaber 370:2] Although the money is taken with the agreement of the loser, nonetheless since the money was taken from his friend in a way of jest and fun without him gaining anything in return, it is therefore Rabbinically forbidden. [Admur ibid; Perisha 34, brought in Smeh C.M. 40] This is considered “Avak Gezel” [Machatzis Hashekel on M”A 322:8]

[4] 2^nd opinion in Admur ibid; Rama Choshen Mishpat 207:13 [laws of Asmachta] and 370:3 [regarding laws of stealing] “The custom is to gamble”; Tur Choshen Mishpat 34, 207, 370, brought in M”A 322:8; Rosh Sanhedrin 3:7; Tosafus Sanhedrin 25a

[5] Admur ibid in parentheses; M”A 322:8 “a slight prohibition”; Teshuvos Harivash 432; Machatzis Hashekel on M”A ibid;  P”M 322 A”A 8; Rav Poalim Y.D. 2:30  

Background: Admur ibid in parentheses that even according to the lenient opinion which rules it does not involve the stealing prohibition, it is nevertheless forbidden to do so; So also rules M”A 322:8 [see Machatzis Hashekel on ibid] that possibly one can learn this way from Michaber 322:6 that although there may not be a stealing prohibition involved there is still “a slight prohibition”; The P”M 322 A”A 8 interprets this to mean a Rabbinical “Avak Gezel”, and so writes Machatzis Hashekel on M”A ibid; However from Admur one can possibly learn that according to the lenient opinion there is no prohibition of even Avak Gezel, and the prohibition is simply due to “Yishuvo Shel Olam” as he writes regarding gambling with a gentile. Another reason for this prohibition can be learned from the Teshuvos Harivash ibid which writes “Even according to Rav Sheishes who states there is no stealing prohibition involved in gambling, nevertheless this is a repulsive, revolting and immoral act. It has caused the lives of many people to be destroyed.” Thus, in total we have three possible reasons for why there is a prohibition to gamble even according to the Rama 1) Avak Gezel 2) Yishuvo Shel Olam 3) putrid act.

Opinion of Rama: The Rama in 207:13 and 370:3 writes that the custom is to gamble. This implies that there is no prohibition involved at all, unlike Admur and the Poskim ibid, and so learns Imrei Yaakov on Admur ibid in 186 and Biurim p. 136. However, see Rav Poalim ibid that even according to the Rama there is a prohibition involved, and so seems to be how Admur ibid learns to be the opinion of Rama. Whatever the case Admur omitted this statement of the Rama that the custom is to be lenient and hence it is safe to conclude that he does not hold of it as an actual Heter. See Imrei Yaakov ibid Biurim p. 136 in great length who questions Admur and the M”A ibid who learn even in the second opinion that there is an Issur involved.

[6] Except for Rama ibid, as understood by some Poskim, explained in previous footnote

[7] Smeh 34:40

[8] See Michaber Choshen Mishpat 34:16 that in such a case he is invalidated as a witness; See Smeh ibid

[9] Admur ibid; Michaber 370:3; Rambam Gzeila 6:11

Opinion of Rama: The Rama 370:3 writes that the custom is to gamble with gentiles. This implies that there is no prohibition involved at all, unlike Admur and the Poskim ibid. However, see Rav Poalim ibid that even according to the Rama there is a prohibition involved, and it is just that we are not accustomed to invalidating such a player for testimony.

[10] Vetzaruch Iyun if this statement refers to only habitual gambling or gambling on occassion

[11] Admur ibid

[12] Michaber 322:6; Tur 322; Beis Yosef 322 that so rules Rif Shabbos 63b and Rosh 23:3; M”B 322:22

The reason: As this can lead to gambling with others and in a way that people lose and win. [M”B 322:22]

[13] 1^st opinion in Michaber 322:6; Tur 322; Beis Yosef 322 that so rules Rif Shabbos 63b and Rosh 23:3; Bach 322 that so is the final ruling and so is implied to be the ruling of the Michaber ibid; M”B 322:22; Kaf Hachaim 322:31 that so is the final ruling

The reason: Although the father of the home owns all the items and it is not real gambling and worry of stealing, nonetheless it is forbidden as this can lead to gambling with others and in a way that people lose and win. [M”B 322:22]

Other Opinions: Some Poskim rule that it is permitted for a father to make a raffle for family members to see who receives which portion of food, even though the portions are different sizes, as they are not Makpid. [2^nd opinion in Michaber 322:6; Rambam Shabbos 23:7; Taz 322:4] The reason for this is because gambling itself is only Rabbinically forbidden and hence there is no need to make an additional decree against this leading to one coming to gamble. [Maggid Mishneh on Rambam ibid; Olas Shabbos 322:10; Elya Raba 322:10; See Taz ibid for his alternative explanation]

[14] Admur Gzeila Ugineiva 31 “Two people who have made a bet [i.e. “Himru”] with each other their status is like one who is gambling with dice”; Rama C.M. 207:13; Shabbos 31a and Rashi ibid; Tosafos Shabbos ibid and Bava Metzia 74a

[15] Rama 207:13; 370:3

[16] Admur ibid in parentheses; M”A 322:8 “a slight prohibition”; Teshuvos Harivash 432; Machatzis Hashekel on M”A ibid;  P”M 322 A”A 8; Rav Poalim Y.D. 2:30  

[17] See Imrei Yaakov on Admur ibid in 187 who argues on Admur and M”A ibid and understands this Rama to be an actual allowance

[18] Vetzaruch Iyun if this statement refers to only habitual gambling or gambling on occasion

[19] Admur Gzeila Ugineiva 31; Rama 207:13; Beis Yosef 207; Tosafus Bava Metzia 74a; Rosh Bava Metzia 74a; See also Admur Hilchos Eidus Halacha 41; Biur Hagr”a  207:37; Hagahos Maimanis Eidus 10; Kneses Hagedola 207:22; Perisha 209; Ketzos Hachoshen 207:6; Nesivos Hamishpat 207:12; Imrei Yaakov on Admur ibid in 186and Biurim there

[20] i.e. Hishlish Hamaos

[21] See Imrei Yaakov on Admur ibid in 186 and 188-189 and Biurim there that 1) a handshake is considered a Kinyan, although that 2) Some require a Beis Din Chashuv for a Kinyan to undo an Asmachta [Tosafus Bava Metzia ibid; Rosh ibid; However, see Biurim there that in truth it is implied from Rama ibid that a Beis Din Chashuv is not required ], and that according to some Poskim this only applies regarding bets made on future matters and not matters of the past [See Taz Y.D. 232:12 that it is a mere Asmachta when losing a bet on past matters; ; Divrei Hageonim Kelal 1:4; Beis David C.M. 11; Atzei Levona on Taz ibid; Minchas Pitim; Biurim ibid p. 137-138]

[22] Such as a Kinyan Sudar, or handshake, as states above

[23] Rama ibid “Shnayim Sheimru Zeh Im Zeh Kanu, Im Kanu Miyadam”; Tosafus Sanhedrin 25a and Bava Metzia 74a; Hagahos Maimanis Mechira 11 Ches; Imrei Yaakov on Admur ibid in 186 and 188-189 and Biurim there

[24] The reason: As the promised money can be considered a mere Asmachta, which means a nonserious and non enforceable agreement which is made in the spirit of hyperbole.  Furthermore, even if not an Asmachta, mere words cannot acquire without a Kinyan. [See Rama ibid; Rosh Bava Metzia 74; Maharsha Sanhedrin 25a; Imrei Yaakov on Admur ibid in 186 and 189]

[25] Implication of Admur and Poskim ibid

[26] Admur Gzeila Ugineiva 31; Rama 207:19; Smeh 207:56; Beis Yosef Y.D. 251; See Imrei Yaakov on Admur ibid in 190-191 and Biurim

Other opinions: Some Poskim rule that even if such a case he is not obligated to give the money to charity and hence they may retract from the bet. [Shiltei Gibroim Mordechai Bava Metzia 5:5; Kneses Hagedola 207:217 in name of Rivash; Hagahos Ashri, Rashdam, ]

[27] See Biurim ibid that in this case thought alone does not suffice to obligate one to give it to charity

See regarding if charity pledges have the status of a vow even when not verbalized and simply accepted in one’s mind: Rama Y.D. 258:13 and Michaber C.M. 212:8 for both opinions and Rama concludes in both Y.D. and C.M. that the main opinion is like the first stringent opinion, and so concludes Admur C.M. Dinei Mechira Umatana Halacha 4; Kuntrus Achron ibid 1; Admur 156:2 “Im Ein Bahen Serach Mitzvah”; Admur C.M. Dinei Mechira Umatana Halacha 1 “Kol Sheiyn Bahem Search Mitzvah”;

Stringent: 1st opinion in Rama and Michaber ibid; Mordechai; Maharik 185; Semak; Hagahos Rav Akiva Eiger 258; Imrei Yosher 2:162; Lechem Rav 223; Kneses Hagedola C.M. 212 that according to Michaber should be stringent; Lenient: 2nd opinion in Rama and Michaber ibid; Rosh Kelal 13; Pischeiy Teshuvah Y.D 258:16 and Gilyon Maharsha 258 in name of Das Eish 14 that Machshava only helps for the amount of the pledge, however one must at least verbalize that he is making a pledge, otherwise it is not binding according to any opinion; Sdei Chemed Klalei Haposkim that Michaber is lenient; See also Mahariy Asad Y.D. 311; Erech Shaiy Y.D. 210 in name of Avnei Shoham;

[28] Michaber Y.D. 258:6; Maharsham 1:201 regarding pledges in thought; Rav Akiva Eiger Y.D. 258:10 in name of Mahralbach; Tzedaka Umishpat [Bloy] 4:5; Imrei Yaakov ibid 191

[29] The reason: As the mere words of promise towards charity is considered as if it was given [Amira Lagavoa Kemissirah Lehedyot]. [Admur ibid]