Thursday, December 27, 2007

Chatzi Hallel

There are basically 4 shitos on the issue of whether you make a bracha on chatzi hallel or not (for example - on Rosh Chodesh or the latter days of Pesach):

Shitas HaRambam: No bracha at all on chatzi hallel.

Shitas Rabbeinu Tam: One does make a bracha on chatzi hallel.

Shitas HaRaavad: On Rosh Chodesh you make a bracha and not on the latter days of Pesach.

Shitas HaRamban: On Rosh Chodesh you don't make a bracha and on the latter days of Pesach you do.

The Brisker Rav in Brachos 16:11 discusses this issue. Briefly, his basic premise is that one only makes a bracha on a cheftza shel mitzvah and the real machlokes is how exactly we define what is a cheftza shel mitzvah. Perhaps we will return to this issue in more depth another time.

The Machzor Vitri (page 192/siman 226) brings Rabbeinu Tam's shitah as well as some opposing views. Also, the Kol Bo in his halachos of Rosh Chodesh brings some shittos.

As far as why we say chatzi hallel on Rosh Chodesh, this comes from a gemara in Erchin 10b that no shira is needed if it isn't mekudash lechag. There is also a gemara in Taanis 28b that mentions that reciting hallel on Rosh Chodesh is a minhag. The gemara there relates this to the fact that the hallel is said bidilug.

Wednesday, December 26, 2007

Al Hanissim in Al Hamichya Part 4

I hate posting on the same thing over and over again... but I finally found the Brisker Rav's answer inside (see this earlier post). The Griz is, in fact, found in the back of the Griz Al HaTorah (as a commenter pointed out to me). Here is a rough translation of what the Griz has to say:

It needs investigation why we do not mention on Chanuka and Purim Al HaNissim in the Bracha Me'ein Shalosh. And it seems, because Al HaNissim has no "din bracha" on it, and it is only a mere hodaah, and in the bracha me'ein shalosh there is only room for a bracha, and for that reason we don't mention in it Al HaNissim. And that which we mention Retzai and Rosh Chodesh in the Me'ein Shalosh, we need to say that there is, in fact, a "din bracha" [on them]. And the proof of this is from that which we say in the gemara that if one forgets and doesn't say Retzai etc. he says after Bonei Yerushalayim and ends with a bracha, so you see that there is a din bracha, and it's not merely a hazkarah. And according to this it is also explained, that because the only reason that we mention Retzai in the bracha me'ein shalosh is only because it is a bracha, and since the whole din bracha of retzai is only after bonei yerushalayim, and that is when you forget to say it on shabbos in its right place, so therefore its place in the me'ein shalosh is after bonei yerushalayim, since the whole din bracha that it has is only after bonei yerushalayim. - Grach

I think that the answer given in that weekly torah publication that I posted here was taken from this Griz but written in an abbreviated fashion.

Tuesday, December 25, 2007

Eidi Mesirah/Chasima Karti 2

ז] כיצד בשטר: כתב לו על הנייר או על החרס או על העלה שדי נתונה לך, שדי מכורה לך--כיון שהגיע השטר לידו, קנה: ואף על פי שאין שם עדים כלל, ואף על פי שאין השטר שווה כלום

This Rambam is based on a baraisa in Kiddushin 26a. However, offhand the Rambam's lashon is strange. It sounds like if one uses a shtar to acquire land, the shtar works with no eidim whatsoever! We know there is a machlokes between R' Eliezer and R' Meir as to whether a shtar needs eidi chasimah or eidi mesirah (see this post), but nobody says a shtar works with no eidim at all?!

Tosafos in Gittin 22b (d"h Aval) understands the baraisa in Kiddushin as referring to a shtar with eidi mesirah, following the opinion of R' Eliezer. However, this runs into problems because the gemara in Gittin there says explicitly that one cannot write a shtar on a davar sheyachol l'hizdayef (i.e. on paper that can be erased and one can change the contents of the shtar) by other shtaros besides gittin, and rely on eidi mesirah to remember what the shtar said. This is learnt from a pasuk in Yirmiyah of "lmaan yaamdu yamim rabim", a general shtar has to be able to last "many years", even beyond the memories of the eidi mesirah. Tosafos therefore makes a distinction between shtaros that are made for raaya purposes and shtaros made for kinyan. Only shtaros specifically made for raayah purposes need to be able to last "many years". Shtaros made for kinyan, however, can even be written on davar sh'yachol l'hizdayef and one can rely on the eidi mesirah to remember.

[ By the way, the implication of Tosafos is that eidi mesirah work on shtarei raayah. This gets into the issue we mentioned here about R' Soloveitchik's yesod that eidi mesirah don't work on shtarei raayah. ]

Rabbi Schachter in Eretz HaTzvi (page 164) seems to learn the Rambam as dealing with a shtar with eidi chasimah. This really seems to run into a problem because the gemara in Gittin specifically does not allow eidi chasimah on davar sheyachol l'hizdayef. It's only by eidi mesirah that the possibility exists.

The Birchas Shmuel in Gittin 14:6 deals with this issue. He says that eidi chasimah in general create an anan sahadi that there was a proper mesirah. This anan sahadi works to create a shtar even in the face of the problem of yachol l'hizdayef. However, the anan sahadi cannot also create a gerushin in such a scenario. (The idea is that by gerushin the anan sahadi is needed both to create a shtar and to effect the gerushin because of the rule of ein davar shebervah pachos mishnayim. The second issue cannot be resolved by the anan sahadi in this case. Why should the first issue be resolvable and not the second? I don't see the answer to that in my notes. Check the Birchas Shmuel I guess.) See the Ktzos HaChoshen 42:1 regarding this issue as well.

Another problem arising with this approach in the Rambam is that the Rambam really paskens eidi mesirah karti. Why go with eidi chasimah here? One option would be to say that the Rambam only held eidi mesirah karti by gerushin to effect the divorce, but not to create the shtar. One needs to examine Gittin 86b and 22b to determine if this approach can work. There are other possible ways to get out of this question (again see this same post which opens the door to some of them).

Sunday, December 23, 2007

The Uniqueness of Shtarei Erusin

The Gemara in Gittin 9a discusses a case where one frees an eved but "leaves over" something for himself within the shtar. For example, the shtar might say, "all my property is yours except...". In the hava amina of the gemara the issue is dependent upon the concept of palginan diburah (see the sugya itself for details). However, in the maskana, Rav Ashi comes up with an alternative reason why such shtaros are no good. Rav Ashi says, "here the reason why it is no good is because it's not a get that totally cuts off". The Rif (2b) explains that since in the shtar there exists some zchuyos to the adon the shtar isn't totally the property of the eved. The shtar used to free the eved has to contain 100% entitlement to the eved (see Rashi also for his explanation of krus gita).

R' Akiva Eiger asks on this idea of the Rif from a sugya in Gittin 40a where the case is that one frees a shifcha. The gemara says that one may give the shifcha a shtar that says "go free with this and marry me." In other words, the same shtar is functioning both to free the woman and marry her to the adon. The question is apparent. Doesn't this shtar contain an entitlement to the adon? How does the Rif understand this gemara?

R' Akiva Eiger answers by pointing out the uniqueness of shtarei erusin. All other shtaros are given from the makneh to the koneh. For example, if I give a field to someone by means of a shtar, I am supposed to give the shtar to the koneh. Shtar erusin is different. There the shtar goes from the koneh, the husband, to the makneh, the wife. Therefore, R' Akiva Eiger explains, the shtar is completely being given to the woman.

In a case where a person frees an eved and the shtar says that some land remains with the adon, so then the very shtar the eved is receiving contains zchuyos of the adon that require the adon's possesion of a shtar. Only then does the Rif say the shtar is bad. This follows the concept in the gemara called "agida gabay". If the shtar is given in such a way that the shtar itself remains somewhat by the adon, that isn't a proper "giving" of a shtar. Essentially, the Rif is saying that lav krus gita is a halachic "agida gabay". However, because the nature of shtarei erusin is that the makneh receives the shtar, there is no agida gabay and no problem with such a shtar.

Rav Chaim in Ishus 3:18 also points out this uniqueness of shtarei erusin. Based on this, he explains that shtaros, in general, are not created by the "daas hamischayev" (i.e. the makneh is usually being mechayev himself by giving away his property). The existence of shtarei erusin prove that the daas of the one who makes the shtar is what creates the shtar. Although, most would assume the daas hamischayev creates shtaros, this is not the case.

In Hilchos Ishus 3:3 the Rambam writes as follows:

ג וְאִם קִדַּשׁ בִּשְׁטָר--כּוֹתֵב עַל הַנְּיָר אוֹ עַל הַחֶרֶס אוֹ עַל הָעַלֶּה וְעַל כָּל דָּבָר שֶׁיִּרְצֶה, הֲרֵי אַתְּ מְקֻדֶּשֶׁת לִי, אוֹ הֲרֵי אַתְּ מְאֹרֶסֶת לִי, וְכָל כַּיּוֹצֶא בִּדְבָרִים אֵלּוּ; וְנוֹתְנוֹ לָהּ, בִּפְנֵי עֵדִים

The Rambam here is paskening that in order to create a shtar erusin one needs to use eidi mesirah - eidim who witness the giving over of the shtar. The question is that in Gerushin 1:16 the Rambam says that by Gittin one may use eidi chasimah b'dieved. Why does the Rambam not say the same thing by shtar eirusin?

Some acharonim answer this question by pointing to the fact that gerushin can be done against the will of the woman. By kiddushin, however, since the daas of the woman is needed, eidi chasimah are no good. The idea is that there must be witnesses present not only to assess the daas of the man, but the woman as well. (See Avi Ezri Ishus 3:3 and Birchas Shmuel Kiddushin Siman 2.)

Others answer using the same yesod that we have been dealing with. The idea is that by gerushin, since the woman is the koneh, so the tefisas hashtar of the koneh can create an anan sahadi as though the eidi chasimah witnessed the giving of the shtar. However, by kiddushin the woman is the makneh. By shtaros we don't say that the tefisas hashtar of the makneh can create such an anan sahadi. Therefore, eidi chasimah are no good by shtar erusin. (See Chazon Ish Even HaEzer 101:11 and Birchas Shmuel Gittin 14.)

The Maharit Alguzi by Get Mekushar in Siman 13 asks a different question on the Rif we started with. He asks from a gemara in Kiddushin 69a where it says that one can free a shifchah and not ubar. Here too, isn't the adon "holding back" the baby for himself? The Shaarei Chaim in Gittin 28 says that this is not a shiyur in the shichrur. The adon is not holding back. Rather, the adon is merely clarifying who he is freeing and who he is not. In such a case it's not a problem of krus gita.

Friday, December 21, 2007

Palginan Diburah

Chaim B. just put up a nice post on Palginan Diburah so I thought it was a good opportunity to write up what I had on the subject.

The Sugyos:

Gittin 8b: A guy writes a shtar to his eved that says "All my property belongs to you". Rava there says that we say palginan diburah. The eved goes free, but gets no property. [The reason he isn't believed on the property has to do with kiyum shtaros. On going free he is believed to say B'fanei Nichtav - like by get isha.]

Gittin 9a: A shchiv m'ra writes over all his property to his eved and then gets healed. On the property the kinyan is chozer, but on the freedom the eved still goes free (because he already has a "shem ben chorin"). This too is a halacha of palginan diburah.

Yevamos 25a/Sanhedrin 9b: Again, the shitah of Rava in two cases. If a guy testifies Ploni ravani lirtzoni or ploni rava ishti l'rtzonah. So on himself or his wife we say he is not believed. For himself he isn't believed because ein adam masim atzmo rasha. On his wife he is a karov. Nevertheless, due to palginan diburah we say he is believed on ploni.

It would seem that Rava in this last sugya is l'shitaso to Gittin where he holds palginan diburah.

Psak Halacha:

The Rambam in Avadim 7:2 and in Eidus 12:2 brings these sugyos l'halacha and seems to pasken palginan diburah.

The Issues:

The Ramban in Makkos 7a asks on Rava's shitah of palginan diburah from the sugya of Ilya v'Tuvia. Ilya and Tuvia were relatives of a guarantor of a loan. The gemara says that this means they are relatives of an involved party and they cannot be witnesses to the loan. The idea is that even though the guarantor is not the actual borrower, since he stands to lose money if the borrower defaults, he too becomes a baal davar. The Ramban asks, what about palginan diburah. Let us say that Ilya and Tuvia are believed as far as the loveh (the borrower) and not as far as the arev (the guarantor).

The Ramban brings the answer of the Raavad. He sets down the following principle. The concept of palginan diburah only applies when the person is testifying about himself. In such a case we say that the eidus is not eidus at all. Thus, we can nullify that part of the testimony and accept the rest. However, by relatives, the eidus on the guarantor is eidus, albeit eidus pasul. If so then we apply a different rule of eidus shebatlah miktsasa batlah kulah. So, according to the Raavad the thrust of the din of palginan diburah is really to say that part of the eidus has no shem eidus. Only then can we say the rest of the eidus is valid, through palginan diburah.

One issue to resolve in the Raavad is the case of Ploni Rava es Ishti. In that case the testimony is about a relative, the guy's wife. For this issue, the concept of Ishto K'gufo is employed so the testimony is, in fact, about the guy himself. Thus, we can still apply palginan dibburah. This is the Raavad's approach to palginan dibburah.

The next step is to address the Rambam's approach to the issue. We will start off by proving that the Rambam does not agree with the Raavad's distinctions. The easiest way to demonstrate this is from eidus 13:13 where the Rambam brings the psul of testifying for one's wife as being a regular psul of karov, like any other relative. Clearly, the Rambam isn't employing ishto k'gufo and thus cannot go with the Raavad's approach.

Also, there is a Raavad found in Mishne Torah Eidus 12:2 that seems l'shitaso, working with the same principle that palginan diburah applies only when someone is testifying about themselves. The Rambam there lists the various cases of palginan diburah and then adds:

וכן כל כיוצא בזה

On this line the Raavad argues that this is not the case. For example, if the case would be ploni rava es shori (my ox), we would not say palginan diburah, but rather eidus shebatlah miktzasa batla kulah. The Ravad is following the same principle that we only say palginan diburah by the baal davar. The implication of the Raavad is that the Rambam makes no such chiluk. In general, the fact that the Rambam never draws this distinction implies he doesn't hold of it. Rav Chaim in eidus 14:4 makes this point in the Rambam.

The Rambam never actually brings the sugya of Ilya and Tuvia l'halacha. The possibility exists that he doesn't bring it for this very reason. The story contradicts the principle of palginan diburah. (See the Grach in Eidus 14:7 discussing these points.)

However, the Rambam does bring some cases that are problematic with the psak of palginan diburah. In Eidus 14:7 the Rambam paskens that if someone writes of shtar giving his property to two people and the eidim are related to one and not the other we say the shtar is no good. The question is why not say palginan and let the eidus work for the party that is not a karov? The Ramban in Makkos actually says that we don't pasken this case l'halacha because we hold palginan dibburah. Obviously, the Rambam has some distinction that we need to discover. Even stranger is that the Yerushalmi (Gittin 1:1) ties this case to the case in Gittin of giving one's property to his eved. This case is based on palginan diburah. So how could the Rambam pasken palginan over there and not here?

These are some of the issues to deal with in palginan diburah. Perhaps in a future post we will address them. Here are some maareh mekomos that deal with the topics we just detailed:

Grach on Rambam 14:7
Ginzei HaGrach 29
Kobetz HeAros Yevamos 21: 1, 12, 13
Grach Stencils 208 (see also Minchas Chinuch Mitzvah 37)
Kobetz Shiurim Gittin 7
Mishnas Rav Aharon Gittin, Biinyan Palginan

Al Hanissim in Al Hamichya Part 3

In a local weekly Torah publication I found the following:

Why is there no mention of Chanukah in Meayn Shalosh? The nature of Meayn Shalosh is that it incorporates the essential parts of benching. The Gemorah regards the Al Hanisim as an askorah, not a part of bentching, therefore it is not included in the Meayn Shalosh.

I already discussed this topic in two previous posts. We brought the Brisker Rav's answer and Rav Soloveitchik's answer. Both were a bit more involved answers than this. I'm not even sure what the answer being given here is, because I don't know to which gemara the writer is referring. The main gemara dealing with the recitation of al hanissim is in Shabbos 24a. I don't see anything there that reflects this answer though. What am I missing?

Thursday, December 20, 2007

Selling Chometz Before Pesach

The Ktzos HaChoshen in 194:4 has an interesting discussion about what is the best way to sell chometz before Pesach. He finds a downside to almost every kinyan. For example, kinyan agav may only be d'rabbanan, kinyan chatzer may get into a problem of ein shlichus l'akum, kinyan meshicha isn't practical, kinyan kesef won't really work with m'taltlin etc. The Ktzos then suggests a novel way of transferring the chometz to the non-Jew - by means of a kinyan odisa. What is a kinyan odisa? It comes from a strange story related in the gemara in Baba Basra 149a. Here is a rough translation of that story:

Issur Giyora had twelve thousand zuz by the house of Rava. Rav Mari his son was conceived not in holiness [before his father converted] but born in holiness (thus he did not legally inherit him). (Rashi: This refers to Issur the Ger who had relations with Rochel the daughter of Mar Shmuel before he converted and she became pregnant while he was still a goy with Rav Mari the son of Rochel. Then, while she was pregnant, he converted. Then Rav Mari was born so that his conception was not in holiness but his birth was. [Rochel] was one of the daughters of Shmuel who was held captive as described in Kesuvos 23a.) He was by the house of Rav. Rava said, "How can Rav Mari acquire this money? If by inheritance, he is not an inheritor. If through a matanah, matnas shchiv maira (i.e. the matana of someone prior to his death) is like an inheritance according to the Rabbis. If there is inheritance there can be matnas shchiv maira, otherwise no. If by meshichah, the money is not with him. If by chalipin, money isn't acquired through chalipin. If by kinyan agav, he has no land. If through maamad shlashtan, I'm not going! [Maamad Shlashtan is a kinyan that involves the mafkid, nifkad and the mekabel matana. The mafkid tells the nifkad in the presence of all three, "the money of mine that you have goes to him". Rava didn't want to participate in this, because he would stand to lose the money!] Finally, Rav Ikka the son of Rav Ami asked, "Why not have Issur admit that the money is Rav Mari's and Rav Mari will acquire through kinyan odisa?" After that, an odisa was, in fact, sent out of Issur's house. Rava was upset about this.

The Ktzos understands that Odisa is a real kinyan. If you "admit" that something belongs to someone else, even if, in fact, it doesn't, this can effect a kinyan. By chometz also, the Ktzos suggests writing a contract admitting that the chometz belongs to the non-Jew, and that will create the kinyan.

This idea of a kinyan odisa is relevant to the discussion we had in this previous post about how hodaas baal din works.

It should be noted that not everyone agrees that odisa is a kinyan. Some learn that it is merely an admission. See, for example, the Nimukei Yosef in Baba Basra 69b in Dapei HaRif.

Wednesday, December 19, 2007

Hodaas Baal Din

It is well known that a person cannot testify about himself l'zchus, for his benefit. However, a person may testify about himself to be mechayev himself. This is the concept of hodaas baal din kmeah eidim. The question is, how precisely does this idea work?

The Ktzos HaChoshen addresses this in a number of places (34:4, 37:1, 5, 9). First, we must address why a person cannot testify about himself l'zchus. The Ktzos brings two possibilities. First, maybe it is merely a chshash mesheker, we fear the person is lying. If so, it is understood why a person would be believed l'chov. The Ir Shushan has a different possibility. He holds that a person isn't believed l'zchus because of the psul of karov. We employ the rule of adam karov eitzel atzmo (a person is related to himself). If this is the case the question remains, why is a person allowed to testify on himself l'chov?

There are many possibilities offered. Some say the person is actually mechayev himself b'toras matanah. It's not that we really believe him that he owes the money. It's just that if he wants to give money to someone else, he is certainly entitled.

Along the same lines, some suggest there is a migo to believe him. After all, he could just give the money as a matanah if he wanted.

The Shach answers that a person isn't a karov to himself l'gabay chov.

Finally, the Ktzos himself learns the whole thing as part of the gezairas hakasuv by modeh b'miktzas, that even though a person is a karov to himself, the gezairas hakasuv overrides.

Tuesday, December 18, 2007

Al Hanissim in Al HaMichya - The Brisker Rav's Answer

In this previous post we mentioned the question of why it is that we do not mention Chanukah or Purim in the berachah me'ein shalosh. We brought the answer of R' Soloveitchik and I mentioned that I heard there was a Brisker Rav on this as well. Although I still don't know where the Brisker Rav is found, someone called me up and told me the gist of the answer. Here it is:

In regular bentching if someone misses yaaleh v'yavo or retzei and finishes the berachah of bonei yerushalayim there are special berachos that he says as a make-up. The Brisker Rav held that when we mention Shabbos or Yom Tov in the berachah me'ein shalosh, the hazkarah is as a replacement for those berachos, and not as a replacement of the actual yaaleh v'yavo or retzei. One proof to this is that in the beracha me'ein shalosh we place the mentioning of Shabbos and Yom Tov at the end, after Bonei Yerushalayim. If the hazkarah was meant to replace retzei and yaaleh v'yavo, it should go beforehand. Another proof is from the lashon of the hazkarah. When mentioning yom tov in the berachah me'ein shalosh we mention simcha. This is mentioned in the "make-up" berachos, but not in the actual yaaleh v'yavo.

On Chanuka and Purim there are no "make-up" berachos, and therefore no mention of them in the beracha me'ein shalosh.

Why is it that we don't mention actual retzei and yaaleh v'yavo in the berachah me'ein shalosh? To answer this the Brisker Rav pointed to the beracha of havineinu (abridged shemoneh esrai mentioned in the gemara in berachos). In this abridged beracha we do not mention havdalah (if it is motzei shabbos). The idea is that in abridged berachos we don't like to add major hazkaros. For a more detailed reason see Rabbeinu Yonah on this issue of Havinenu. In any case, the Brisker Rav said the same would be with the beracha me'ein shalosh. It too is an abridged berachah like havinenu.

This is basically the answer as I heard it over. Again, I haven't yet seen it inside so I don't want to get too much into the details.

Update Dec. 26, 2007: I finally found the Brisker Rav inside - see here for details.

Monday, December 17, 2007

Nimtza Echad Mehem Karov O' Pasul

There is a halacha in Hilchos Eidus that if even one of the eidim in a set of witnesses is found to be a karov (a relative) or a passul, the entire set of witnesses is thrown out. Based on this halacha there is a famous question dealt with by the rishonim as to how anyone can ever get married. Assuming that at the wedding there is at least one relative who witnesses the maaseh kiddushin, shouldn't we say that nimtza echad mehem karov o' passul eidusan b'tailah. Since one of the witnesses to the marriage is a relative, all the witnesses should be thrown out, and the kiddushin should be nullified.

This issue is addressed by Tosafos in Makkos on daf 6a. Tosafos answers that shaas reiyah alone is not enough to be mitztaref eidim for this halacha. In other words, the halacha of nimtza echad does not kick in at the time the event is witnessed. Rather, if a group of eidim are involved in hagadas eidus (i.e. they are testifying to something in court), only then would the halacha apply.
The Ritva brings a Ramban in Kiddushin with another answer, that the husband can be meyached eidim. If the husband says that these two people are my eidim for the kiddushin and no one else, so everyone else in the crowd is automatically excluded from the eidus, and the kiddushin is valid. Based on this shitah some are noheg in weddings to announce "So and so are eidei kiddushin... to the exclusion of all others".

One question on the Ramban is, what kind of crazy idea is this to be meyached eidim? If someone is about to commit retzicha, can he exclude people who are present from being eidim?

I heard over in the name of R' Soloveitchik that this is one of the reasons to say that when it comes to eidus l'kiyum hadavar, the eidus is actually a part of the maaseh habaal. There are two distinct categories of eidus. One is eidus l'birur hadavar. These are eidim that determine what happened. For example, eidim witness a maaseh retzicha and clarify what precisely took place. Obviously, there is no yichud eidim in this scenario. However, by marriage (and divorce) the eidim are l'kiyum hadavar. They are a part of the maaseh habaal. By being present at the time of the kiddushin they allow the daas of the baal to create the challos kiddushin. They aren't determining what happened, they are actually enabling it to happen. Since eidim l'kiyum hadavar are a part of the maaseh kiddushin, we can imagine a concept of yichud eidim. (For more on this issue of eidus l'kiyum hadavar see Rav Chaim in Yibbum V' Chalitza which we mentioned in this post.)

The Ktzos in Siman 36:6 also addresses this issue of how our weddings work. He gives an answer that is similar to the Ramban's.

Saturday, December 15, 2007

Why There is no Al Hanissim in Al Hamichya

Although we mention Shabbos and Rosh Chodesh in the Bracha Me'ein Shalosh (i.e. al hamichya) there is never a mention of Chanukah and Purim. Why not?

I saw in the Iggros HaGrid (Berachos 3:13) that Rav Soloveitchik addresses himself to this question. He explains that when it comes to Shabbos and Rosh Chodesh, the days are mentioned in our tefillos because the days themselves "deserve" mentioning. The inherent kedushas hayom of the day is mechayev hazkarah. Thus, these days are mentioned even in the Bracha Me'ein Shalosh. However, when it comes to Purim and Chanukah, there is no kedushas hayom. The mentioning of al hanissim is not due to the day being mechuyav in hazkarah. Rather, al hanissim is said as an expansion of the bracha of hodaah. Once we thank Hashem in Modim it is fitting to mention the specific miracle of the day. This explains why Chanukah and Purim are not mentioned in the Bracha Me'ein Shalosh. The Bracha Me'ein Shalosh is essentially a "shrinking" of the real Birchas HaMazon. The whole point is to abbreviate, not to expand. Thus, to expand upon Me'ein Shalosh by mentioning the nes of Chanukah or Purim is not appropriate.

I heard that there is also a Brisker Rav that addresses this issue. Does anyone know where it can be found?

Monday, December 3, 2007

Shlichus by Mitzvos

The Ktzos HaChoshen in Siman 182 discusses why it is that shlichus doesn't work by mitzvos. For example, I can't tell my friend to put on tefillin for me as a shliach. Why not? The Ktzos explains that mitzvos are specifically instructed to be b'gufo, I must put the tefillin on my arm. One question on the Ktzos is from the psak of the Rema in Siman 322, that a father cannot appoint a shliach to do the mitzvas milah on his son for him. Why not? Here the mitzvah is not b'gufo?
Rav Chaim (stencils hosafa 5) suggested a different approach. He suggested that shlichus only works on areas of halacha where the mishaleach is a baalim on the dvar hashlichus. As we know, the sources for shlichus come from gittin, kiddushin, and terumah. In all these cases the mishaleach has baalus. For example, if a man appoints a shliach to carry out a kiddushin for him. This is an area of halacha that involves baalus & kinyanim. Because the man is a baalim on his kiddushin, he can appoint a shliach to do the maaseh kiddushin for him.
Evidence to this can be found in the gemara in Kesuvos 74a where it says that only in areas of halacha where one can appoint a shliach, can one make a tnai. The idea according to Rav Chaim is that in both situations, tnai and shlichus, one is demonstrating baalus over the action taking place. (See sefer Eretz HaTzvi by Rav Schachter who brings further proof from Tosafos in that gemara.)
From this logic stems a number of chiddushim regarding a shliach l'kabbalah by a get. We know that by divorce the husband may appoint a shliach to deliver the get on his behalf. This is called a shliach l'holacha. Then, there is another halacha that a woman can appoint a shliach to accept the get on her behalf. This is a shliach l'kabbalah. The Tosafos HaRosh in the beginning of the second perek of Kiddushin asks, why do we need a separate pasuk for shliach l'kabbalah? The answer given is that we know that a woman can be divorced against her will. This is evidence of the fact that a woman cannot exercise any daas when it comes to divorce. If the woman has no daas in this area, it would seem that she lacks baalus, in which case she should not be able to appoint a shliach. This is why a special pasuk is needed to include shliach l'kabbalah. Otherwise such an idea would have been impossible, due to the lack of baalus.
Another famous area of halacha that daas comes up in, is within the issue of eidus l'kiyum hadavar. In normal situations, witnesses are used l'vrurei milsah, to clarify the matter. We use eidim to determine what precisely happened. However, when it comes to gittin and kiddushin, there is another type of eidus, eidus l'kyumei milsah. Witnesses must be present at a marriage and divorce not just to confirm that there was a marriage and divorce, but even to allow the marriage or divorce to take place. Without the eidim, the kiddushin/gerushin cannot even be chal. Rav Chaim in Yibbum V'Chalitza 4:16 points out that by chalitza, eidim are not needed l'kyumei milsah (at least not min hatorah). Why not? He explains that eidim l'kyumei milsah are only needed for davar shebervah that involves daas. Kiddushin and Gerushin involve daas. This is not the case by chalitza. We also find that specifically by shliach l'kabbalah, and not shliach l'holacha, eidim l'kiyum hadavar are needed. It seems that specifically when appointing shliach l'kabbalah, there is "daas davar shebervah" that doesn't exist by shliach l'holacha. This, Rav Chaim discusses in Gerushin 6:9.

Sunday, December 2, 2007

Zimun of 10 people

By a zimun of 10 people it is well known that we add "elokenu" to the birchas hazimun. I once heard over in the name of Rav Soloveitchik (maybe from Rav Chaim) that the idea of adding elokenu is to make the zimun into a davar shebikdusha (which of course requires 10 people). The reason why some people stand (by the word elokeinu) is because according to some minhagim, the minhag is to stand during davar shebikdusha (like kaddish or kedusha). This minhag is not universal, however. (For example, I believe some sefardim have the minhag only to stand by a kaddish that leads into another prayer which requires standing.) I also heard that R' Soloveitchik was opposed to people who "half-stand" up by the word elokeinu. Either sit or stand... but half-standing is neither here nor there.
In general, I have heard some interesting shittos from R' Chaim on davar shebikdusha. For example, I heard that Rav Chaim held that davar shebikdusha by definition is responsive davening, chazzan then tzibbur. For this reason he was more in favor of the tzibbur davening in a responsive fashion than all singing together.
I also heard that it was Rav Chaim's minhag to stand even during the kedusha of birchos krias shema (and I think Uva L'tzion as well) due to davar shebikdusha.

Tuesday, November 27, 2007

B'fanei Nichtav in Bavel 2

In this previous post we discussed Rashi in Gittin that interprets a gemara in Gittin to mean that ever since Rav came to Bavel, Bavel has a status of Eretz Yisroel as far as Get is concerned and there is no need to say B'fanei Nichtav in Bavel. The question on Rashi that we left off with was from the next line in the gemara. The gemara asks, what about our mishna where it says that even in Bavel there is B'fanei Nichtav?
According to Rashi, what kind of question is this? The mishna was before the times of Rav! The whole gemara seems to not make sense according to Rashi.
The gemara in Beitzah sets down a rule that a davar sheb'minyan need minyan acheir l'hatiro. Meaning, that if a Beis Din makes a takanah, the takanah can only be overturned by another Beis Din. There is a machlokes between the Rambam and the Raavad if, in a case where the taam hagezairah no longer applies do we need a beis din that is greater in wisdom and number (Mamrim 2:2). However, all agree that even if the taam of the gezairah is batel, some type of bais din still needs to overturn the gezairah.
Based on this we can suggest for Rashi that the gemara's question is based on davar shebiminyan. The gemara is asking that if Bavel was part of the gezairah in the times of the mishna, so how is that overturned in Rav's time. The gemara answers "l'vad mibavel", the gezairah was never made for Bavel in the first place.
Now, this pshat that I am suggesting is difficult based on the gemara in Gittin on 5a. The gemara there says that "l'achar shelomdu", after people learned the halacha of lishma, there was no need for b'fanei nichtav. This gemara is clearly saying that once the taam of the gezairah was batel, so was the takana. Apparently, the takana to say b'fanei nichtav was not a real gezairah in the technical sense, and the gemara in Beitzah does not apply to it.
So, now we are stuck in Rashi. If we use the idea of davar shebiminyan in Beitzah, the gemara on 5a doesn't make sense. And, if we don't use it, we are back to the question on our gemara.
As a side point, why wouldn't the takana of b'fanei nichtav be included in the gemara in Beitzah of davar sheb'minyan? We can suggest two possibilities. One simple possibility is that the takana in the first place included the "escape clause". For example, the takana may have been, "in places where they don't know about lishma, we have a takana of b'fanei nichtav". Another possibility is that the takana of b'fanei nichtav wasn't on the gavra like normal takanos. Rather, the takana was made on the get. The kashrus of the get is suspect based on the gezairah. Therefore, again, once the circumstances change the get's kashrus is no longer suspect and m'meilah the takana goes away.
The gemara by l'achar shelomdu ends off that we still keep the gezairah because "shema yachzor davar l'kilkulo", maybe people will again become ignorant. Rashi there implies that therefore the original takana stands (see sefer ayeles hashachar). The Sukkas Dovid explains pshat that really the gemara means that b'fanei nichtav was a davar sheb'minyan, and just because the taam is batel, still, the gezairah remains. So when the gemara answers that maybe people will become ignorant again, it's just a fancy way of saying that we aren't mevatel gezairos because the taam goes away... because who knows what the future will bring?
According to this, the sugya on 5a is totally consistent with the gemara in Beitzah of davar sh'b'minyan.
However, we aren't out of the woods just yet. This is because the gemara clearly says that kodem sh'lomdu the gezairah was stronger than l'achar sh'lomdu, in that kodem sh'lomdu the gezairah was even on milsah d'lo shchicha, even on uncommon cases. So, how can we say that it's all the same gezairah if the parameters have changed? For this reason many acharonim learn that they are two totally separate gezairos and not one. So what can we say for Rashi?
I would suggest that Rashi learns that kodem sh'lomdu there were 2 aspects to the gezairah. One on the kashrus of the get (cheftza) and one on the shliach himself to say b'fanei nichtav (i.e. on the gavra). The gezaira on the gavra cannot be batel, but the suspisions on the get can change with the circustances. Therefore, l'achar sh'lomdu on the gezairah on the gavra remained, which was more lenient.
Returning to our gemara, in Rashi we will suggest that this gezairah on the gavra is only in certain areas. The gemara thought that Bavel was one of those areas and included in the gezaira, so how could it be batel in Rav's time. When the gemara says l'bar m'bavel it means that Bavel never had any gezaira on it. See Tzafnas Paneach 7:10 who elaborates on this last point.

Monday, November 26, 2007

Chukas HaAkum

As I said in the previous post, I have been in contact with Rabbi Broyde and he has given answers to some of my questions. However, as of now, I still do not have permission to reproduce the answers he has given me.
Based on what he wrote me, though, I will give an outline of the issues at hand. The first issue to deal with is the different shitos regarding Chukas haAkum, also known as Darchei HaEmori. This is the prohibition in the Torah that forbids us to engage in the practices of the non-Jews. An excellent article has been written on this topic by Rabbi Zvi Teichman in The Journal of Halacha and Contemporary Society (1981). This article is cited by Rabbi Broyde in his article, as well.
Boiling it down, there is basically a contradiction between the Gemara in Sanhedrin and the Gemara in Avodah Zarah as to what the "heter" for Darchei HaEmori is. The Gemara in Avodah Zarah seems to say that if the practice is non-idolatrous it is muttar. The language of the Gemara is that it is muttar if it is "an honorable rite". The Gemara in Sanhedrin, however, seems to say that the heter for Darchei HaEmori is that if the Torah says to do it, only then is it muttar in the face of Darchei HaEmori. Otherwise, it is forbidden.
The Rishonim take these gemaras in different directions. Here is a run-down of the shittos:

Shittas HaTosafos: If it is a practice for Avodah Zarah it is forbidden even if the Torah instructs us to do it. (Just like we don't bring sacrifices on Matzeivos because they began to be used for Avodah Zarah, even though in earlier times the Avos used Matzeivos.) If it is a non-idolatrous practice it is only muttar if the Torah instructed us to do it. This is obviously a very stringent shittah.

Shittas HaRan: If it is non-idolatrous, it is muttar. If it is idolatrous or possibly related to idolatry, it is muttar only if the Torah instructs us to do it. This is difficult in light of the Gemara in Sanhedrin that seemed to require the Torah's instruction even in non-idolatry related cases.

Shittas MaHarik: The MaHarik is a very similar shittah to the Ran, however, he elaborates more conditions. The ideas that the MaHarik states are also very similar to the Rema, and it seems clear that the Rema follows the MaHarik. Therefore, if we want to define normative halacha it would be good to investigate this shittah. The MaHarik holds that not only are idolatry related practices forbidden, but even practices with no logic to them at all, as well. The idea is that if we do something that has no reason to it, so we are only doing it because the non-Jews do it. That is part of the issur of Chukkos HaGoyim. Also, the MaHarik holds that any practice of non-Jews that departs from immodesty is also included in Chukkos HaGoyim. The Iggros Moshe in Yoreh Deah Chelek Daled Siman 12 deals with this shittah with regards to Thanksgiving. Rav Moshe in two different teshuvos seemed to contradict himself regarding celebrating and eating turkey on Thanksgiving. In one teshuva he implies it is a problem of Chukas HaAkum. In another, he implies it is only a chumra, but min hadin not a problem of Chukas HaAdum.
Rav Moshe says he is actually mesupek on the issue. The safek basically boils down to the following. On the one hand, we could say that all these practices on Thanksgiving have no real reason to them. As Rav Moshe says, "that which we find by many things that happen to people all the time and they are inyanim of tzaar and yet they are not in tzaar, and also inyanim of simcha that people aren't happy about, even at that exact time. And in this case [of Thanksgiving] they are happy and they made a set day for celebration and eating turkey for hundreds of years after this, that is considered something for no reason and is darchei haemori, because it is done for no reason or need, and therefore there exists the prohibition of U'b'chukosehem lo selechu......"
On the other hand, maybe even a small reason counts as a reason. As Rav Moshe says, "but [on the other hand] you could say that in order to avoid [the issur] we don't need such a reason that would [be good enough] for us to make a holiday if it happened to Jews. Rather, it is enough if the reason was enough for the non-Jews..."
Rav Moshe then seems to conclude in this teshuva that his opinion is really tending l'chumra based on the lashon of the Rema himself.
There are a lot of teshuvos from Rav Moshe on this and it is hard to pin down exactly what he holds. However, it does seem that Rav Moshe concludes consistently that, at the very least, a baal nefesh should be machmir. Rabbi Broyde deals with Rav Moshe's view quite a bit in his article. I suggest you take a look at the teshuvos yourself to see if you can determine how Rav Moshe really holds. My point is that even in the Rema himself it doesn't seem that pashut.

Shittas HaGra: The Gra first brings down the various shittos. He is then clearly bothered by the Shittas HaRan and MaHarik because they don't fit well with the Gemara in Sanhedrin. On this issue, he sides more with Tosafos. Then, at one point he seems to offer his own solution to the Gemaras. He says that when the Gemara in Sanhedrin says that the mattir of Darchei HaEmori is that the Torah instructs us to do it, it is actually lav davka. All the Gemara means is that if we are doing it for our own purposes as opposed to theirs, it is muttar. That is also what the Gemara in Avodah Zarah means. When the gemara says that since it is an "honorable rite" it is muttar, it just means that since we are doing it for our own reasons, it is muttar.

One of the issues I raised with Rabbi Broyde is that wouldn't it be advisable to be machmir like the Gra and Tosafos? Even if it is not the normative halacha, it still would be a worthy chumrah. From Rabbi Broyde's response (again I won't post the actual response until I have permission, here I am just posting the framework), I gathered that the issue really is do we follow the Gra and Tosafos in other aspects of our lives? For example, one may suggest that since we dress "like Americans" we are clearly not being machmir for the stringent views (unless you are chassidish). I would counter that this is not the case. There is a major difference between dress and celebrating Thanksgiving. Dressing in American style clothing would be muttar even according to the Gra. Rav Moshe in Yoreh Deah 1:81 says this explicitly. This is because by dress, the style can be regarded as equally Jewish as Gentile. It is not a type of dress that is specifically derived from the non-Jews. This view of Rav Moshe is brought by Rav Teichman as well. However, Thanksgiving is a holiday derived from the non-Jews. It may therefore be problematic within the shittos of the Gra and Tosafos.

Sunday, November 25, 2007

A Source from Rabbi Eidensohn Regarding a Previous Post

Rabbi Eidensohn, author of the Yad Moshe (an index on all of Iggros Moshe) wrote me an email concerning this previous post. The post was about the fact that Bnei Noach may be commanded on the mitzvah of kibbud av. In the email he sent me a copy of the introduction of the Netziv to Ahavas Chesed which deals explicitly with the issue. Here is a copy of that Netziv:

*נצי''ב (הסכמה לאהבת חסד של החפץ חיים)* ...עתה ראה להוציא לאור ספר אהבתחסד להאיר לב ישראל לעמוד ע''ז הדרך של גמ''ח. ולהאיר עיני ההולכים בה שלאיכשלון באופני המצוה, ושיש במצוה זו מ''ע בתורה. ושני הדברים הללו תלויםזב''ז. ואבאר יותר. דבאמת כלל גמ''ח היא קיום העולם וכדכתיב עולם חסד יבנה.והיא חובת האדם וזהו צורתו. ומש''ה כתיב בראשית הבריאה בהולד שני אנשיםהראשונים ותוסף ללדת את אחיו את הבל. והאי את אחיו מיותר וביארנו בהעמקדבר[בראשית ד:ב] שבא ללמד שהוא מפרטי צורת האדם ובמה שהוא משונה מצורת כלהברואים. שיהא אחוה שוררת בין אישיה. וקין התנהג כן בתחלה ופרנס מעבודתהאדמה שלו את הבל אחיו אשר לא הי' עובד אדמה. ומש''ה גם אוה''ע מצווים עלגמ''ח [והא דלא מנה התנא בסנהדרין במצות שאוה''ע חייבים. מבואר שם דף מ''חדקום ועשה לא קחשיב. וכן הוא לשיטת הפוסקים דעכו''ם מצווה על פו''ר וכמש''כבהעמק שאלה סי' קס''ה אות ב' בס''ד]. ומשו''ה נתחייבו אנשי סדום כליה בשבילשלא החזיקו יד עני ואביון והשחיתו צורת האדם. והנה בני אברהם יצחק ויעקבמוזהרים בטבע על מצוה זו. כדאיתא ביבמות פ' הערל שלשה סימנים יש באומה זורחמנים וביישנים וגומלי חסדים. ובירו' קידושין פרק ד' אי' שלשה מתנותטובות נתן הקב''ה לישראל רחמנים וביישנים וג''ח. ומשו''ה ראה יצחק אבינובשעת ברכתו ברוה''ק וירח את ריח בגדיו וגו' ואי' בסנהדרין דל''ז ריחבוגדיו. וביארנו בהרחב דבר שם שקאי על זה הענין עיין שם באריכות.וב' שמות בשעת מ''ת שאמר ה' למשה רבינו תנאי ההתקשרות שהוא ית' מתקשר עםישראל להיות לו לעם הוא יהיה להם לאלקים. ואמר ועתה אם שמע תשמעו בקוליושמרתם את בריתי והייתם לי סגולה מכל העמים כי לי כל הארץ אומר ה' למשהשיאמר לבית יעקב ויגד לבני ישראל היינו שיפרש הדבור לבית יעקב היינו המוןהעם בזה האופן של אמירה לב''י בזה האופן של הגדה. ונתבאר שם ובסוף פ'משפיטם כ''ד מקרא ז' שלפני המון העם לא התנה כי אם לשמוע בקול תורה ולשמורעבודה. אבל על ג''ח לא הזהיר כלל באשר שמעצמם המה מוזהרים ע''ז. משא''כלגודלי ישראל הזהיר גם על ג''ח ושיהא לא מצד הטבע ושכל אנושי אלא לשם שמים.ומכ''מ יש מ''ע בתורה כמו והחזקת בו ועוד אם כסף תלוה וגו' היינו כדיללמדנו אשר מלבד שאנחנו מצווים על ג''ח מחמת חובת האדם לאדם עוד אנו מצוויםעליה מצד התורה כמו כל חוקי התורה שאין הדעת אנושי נותן להם.והנ''מ בזה נתבאר בפ' כבד את אביך וגו' למען יאריכון ימיך על האדמה אשרה'אלקיך נותן לך. ואינו מובן מאי דייק המקרא על האדמה וגו' והרי אפי' על מצותשלוח הקן דקלה כתיב סתם והארכת ימים מכש''כ כיבוד או''א החמורה. אלא באהכתוב ללמדנו דאע''ג דכיבוד או''א הוא מצוה שדעת האדם נותן לה וגם אוה''עמצווים עליה בחובת האדם ומקבלים עליה שכר כמו בני נח ודמא בן נתינה כידוע.מכ''מ ציונו הקב''ה בעשרת הדברים להזהירנו מצד חקי התורה לבד חובת האדם.והנ''מ בזה הוא לעינן שכרה. דחוקי התורה אפי' מצות שאין תלוים בארץ ונהגאפי' בחו''ל מכ''מ מיוחדות המה בא''י יותר ומש''ה נקראת תורת אלקי הארץכמש''כ הרמב''ן בחומש בפ' תולדות ובכ''מ. וא''כ שכרה יותר הוא בארץ מבכלמקום. משו''ה ביאר הכתוב דגם על מצות כיבוד או''א שהיא מצוה חובת האדם ואיןנ''מ בזה א''י מכל התבל. מכ''מ היא מצוה חוקית ג''כ ושכרה יותר על האדמהוגו'. וממילא נ''מ לדינא. דאחר דכיבוד או''א היא חוקית כמו כל מצות שבתורה,עלינו עם ה' ללכת בה עפ''י חוקי התורה דוקא ולא עפ''י דעת אנושי. למשלבעכו''ם שבא על בת ישראל והוליד בן יש לו אם ולא אב מה''ת חייב בכבוד אםיותר מכבוד אב. ועוד הרבה דינים.וכמו כן הוא במצות הלואה למי שנצרך. דאע''ג שהיא חובת האדם מכ''מ היא חוקיתג''כ. וא''כ יש בזה כמה דינים מה שאין דומה עפ''י שכל אנושי שהיא חובתהאדם. ונ''מ לענין איסור נשך. דמצד דעת האדם. אם יש לאדם מעות שחייו תלוייםבהם. ואינו יכול להלותם בג''ח כי אם להלוותם ברבית למי שהוא בעל שדה אוסוחר. ומצד חובת האדם הוא ג''ח גדול ומצוה להלוותם ברבית הראוי ויחיה גםהוא גם חבירו במעותיות. אבל הזהירה תורה אותנו ע''ז שאסור לקבל נשך בשוםאופן. וא''כ א''א להלוות ולעשות זה החסד. וכבר ביארנו בהרחב דבר בס' בראשיתמ''ח. מש''כ בס' תהלים ע''ח ויטש משכן שילה אוהל שילה שיכן באדם עד ויבחראת שבט יהודה את הר ציון אשר אהב ואין מבואר משמעות אוהל שיכן באדם. וכיבהמ''ק אשר ביהודה לא היה באדם, ותו מאי אשר אהב והלא אהבת ציון הוא משוםשבחר בו. אלא הענין דשילה שהיה בשבט יוסף, לא היה בזכות התורה, שלא היהבשבט יוסף הרבה תורה, אלא בזכות ג''ח וכמו שביארנו ב' שמות ס''פ תצוה.ומשום רוב ג''ח השכין הקב''ה שכינתו שם. וזהו דבר המשורר אהל שיכן באדם.מחמת מצוה שבא מצד שהוא אדם. לא מצד התורה שישראל מיוחדים בה. ע''כ בחר אתשבט יהודה שהיו בעלי תורה. ודוד המלך קבע ישיבה על הר ציון עוד משעה שראההמקום מיוחד לבהמ''ק כמו שהוכחתי משה ממקראי בדה''י. והיינו את הר ציוןאשר אהב. וכדאיתא בברכות פרק א' אוהב ה' שערי ציון וגו' שערים המצויניםבהלכה...

Rabbi Eidensohn's website, Daas Torah, can be found here.

Wednesday, November 21, 2007

B'fanei Nichtav in Bavel

The gemara in Gittin on 6a brings a statement from Rav Huna that ever since Rav came to Bavel, Bavel was treated like Eretz Yisrael in terms of Gittin. This means that just like in E.Y. one need not say B'fanei Nichtav, so too in Bavel there is no such need. Rashi explains that the gemara means to say that ever since Rav came to Bavel and established a Yeshiva in Sura, Bavel was treated like E.Y. as far as this halacha of B'fanei Nichtav.

Tosafos asks a strong question on Rashi. The next line in the gemara asks on this statement of Rav Huna from the mishna which implies that there is B'fanei nichtav in Bavel. What kind of question is this? Rav came after the mishna! According to the way that Rashi learns the gemara everything changed once Rav came to Bavel. Thus, according to Rashi the hemshech of the gemara makes no sense. I have my own suggestion for an answer to this question but I'll save it. For now, I'll let you give it some thought.

Tuesday, November 20, 2007

Birchos Krias Shma

Rashi on daf 2a in Berachos writes that if one says shma early (before nightfall), he is yotzei his chiyuv of shma with his krias shma al hamitah with the first parsha of shma alone. Tosafos asks, if this is the case he should need to recite all 3 parshiyos during krias shma al hamita?

I saw in the Iggros HaGrid Hilchos Shavuos 1:13 the following answer:

Rashi's opinion is that even though the zman of shma itself is from tzeis, nevertheless the zman of Birchos Krias Shma is from Plag HaMincha. Rashi can hold this because he holds that the brachos of shma are not birchas hamitzvos. Rather they are just shevach v'hodaah. Rashi, therefore holds that the zman for the brachos is actually determined not by the zman of shma itself, but by the zman of tefillah. This is based on the halacha of smichas geulah l'tfillah. Since the brachos are "geulah" there zman is defined by tefillah.

Rashi therefore holds that the second two parshiyos of shma, which are only midrabbanan, the takana was to say them as one kiyum with the brachos of shma. It is only the first parsha, which is shma d'orayssa, that has its zman defined by nightfall.

Monday, November 19, 2007

Eved Knani/Milah/Geirus Part 3

In yesterday's post we discussed the following case:

A man buys a pregnant woman as a shifcha knanis. The women then gives birth to what we call a yelid bayis, a child born into slavery. After the woman gives birth she then does her tevilah l'shem geirus (because all slaves also go through a conversion). The halacha is that a yelid bayis is nimol l'shmoneh. Normally, anyone who is nimol lishmoneh, the milah is also docheh shabbos. However, the Rambam holds that in this case the milah is not docheh shabbos. The question is, why?

Rav Chaim explains that in this case, since the mother was not tovel l'geirus while she was pregnant, the baby has the current status of a non-Jew. If so, the milah cannot be docheh shabbos because the milah of a non-Jew is not docheh Shabbos.

The Chazon Ish argues with Rav Chaim based on the following logic. Rav Chaim is essentially saying that it is the geirus component of the milah that separates this case from the classic case of yelid bayis. In a classic case there is milah without geirus. Here it is milah with geirus. The Chazon Ish points out that by milah of avadim the Rambam holds in general that the avadim require daas. If so, how do avadim ktanim ever have milah??

The Chazon Ish reasons that it must be the case that the Rambam only says milas avadim need daas because of the general geirus component, for we know that geirus needs daas. That component is totally missing by ktanim. Therefore, the din to be mohel an eved katan must be on the adon independent of any geirus. If so, there should be no difference whether the eved is a non-Jew or not, because the din of milah exists independent of that halacha.

This issue really gets into the general issue of geirus by k'tanim and gets involved in the sugya in Kesuvos 11a. Perhaps we will discuss this another time.

Sunday, November 18, 2007

Milah/Geirus of Eved K'nani 2

In the previous post we brought the Rambam that says that if a person buys a shifcha k'nanis who is pregnant, the baby has a din of a yelid bayis and he is nimol l'shmoneh. However, the Rambam says that despite this fact, if the shifcha is toveles after the baby is born, even though the baby is nimol l'shmoneh, still the milah is not docheh shabbos. The question is why.
The Grach (Milah 1:10) in one attempted answer suggests that in this case, even though the milah is done on day 8, still the baby is currently a non-Jew (because his mother wasn't toveles before his birth), therefore a non-Jew's milah can never be docheh shabbos.

Geirus/Milah of Eved K'nani

ד] יֵשׁ מִקְנַת כֶּסֶף, שֶׁנִּמּוֹל לִשְׁמוֹנָה; וְיֵשׁ יְלִיד בַּיִת, שֶׁנִּמּוֹל בְּיוֹם שֶׁנּוֹלַד. כֵּיצַד: לָקַח שִׁפְחָה וְלָקַח עֻבָּרָהּ עִמָּהּ וְיָלְדָה, הֲרֵי זֶה נִמּוֹל לִשְׁמוֹנָה; וְאַף עַל פִּי שֶׁלָּקַח הָעֻבָּר בִּפְנֵי עַצְמוֹ, וַהֲרֵי הָעֻבָּר עַצְמוֹ מִקְנַת כֶּסֶף, הוֹאִיל וְקָנָה אִמּוֹ קֹדֶם שֶׁתֵּלֵד, נִמּוֹל לִשְׁמוֹנָה

The Rambam here is discussing two types of eved k'nani. One is called a miknas kesef, and eved who is bought as a slave. The other is a yilid bayis, an eved who is born into servitude. The general halacha is that eved k'nanim have a milah done to them. (Essentially, they become Jewish and are chayav in mitzvos the same way women are.)
In a normal case, a miknas kesef is nimol on the day he is bought. The Rambam here is bringing an exception to this rule. If one buys a shifcha with her fetus. In such a case it is really a miknas kesef, but he is nimol lishmoneh because he is born in the reshus ha'adon.

The Rambam then brings a second case:

ה] לָקַח שִׁפְחָה לְעֻבָּרֶיהָ, אוֹ שֶׁלָּקַח שִׁפְחָה עַל מְנָת שֶׁלֹּא לְהַטְבִּילָהּ לְשֵׁם עַבְדוּת--אָף עַל פִּי שֶׁנּוֹלַד בּרְשׁוּתוֹ, נִמּוֹל בְּיוֹם שֶׁנּוֹלַד: שֶׁהֲרֵי הַנּוֹלָד הַזֶּה כְּאִלּוּ הוּא מִקְנַת כֶּסֶף לְבַדּוֹ, וּכְאִלּוּ הַיּוֹם קָנָהוּ, שְׁאֵין אִמּוֹ בִּכְלַל שִׁפְחוֹת יִשְׂרָאֵל, כְּדֵי שֶׁיִּהְיֶה הַבֵּן יְלִיד בַּיִת. וְאִם טָבְלָה אִמּוֹ אַחַר שֶׁיָּלְדָה, הֲרֵי זֶה נִמּוֹל לִשְׁמוֹנָה

Here the Rambam says that if one buys a fetus with no intention of buying the mother with it, he gets a milah on the day he is born. Why? Because in such a case he has a din of a miknas kesef because he is essentially a bought slave.

The Rambam seems to be saying as follows: Really a miknas kesef is nimol on the day he is bought. However, if the mother is bought along with the fetus, the status is in effect a yilid bayis. This is because by owning the mother it's as though the eved is born into the service. Also, a yilid bayis is nimol l'shmoneh. However, if the mother is not bought along with the fetus, it is in reality a miknas kesef. Again, this is because by not owning the mother, it is by definition miknas kesef. Everything is dependent on whether the master owns the mother or not.

This brings us to the last Rambam:

י] כְּשֵׁם שֶׁמִּילַת הַבָּנִים, דּוֹחָה אֶת הַשַּׁבָּת; כָּךְ מִילַת הָעֲבָדִים שְׁהֶן נִמּוֹלִין לִשְּׁמוֹנָה--דּוֹחָה אֶת הַשַּׁבָּת, אִם חָל שְׁמִינִי שֶׁלָּהֶן בַּשַּׁבָּת: חוּץ מִיְּלִיד בַּיִת שֶׁלֹּא טָבְלָה אִמּוֹ עַד שֶׁיָּלְדָה--שֶׁאַף עַל פִּי שֶׁנִּמּוֹל לִשְׁמוֹנָה, אֵינוּ דּוֹחֶה אֶת הַשַּׁבָּת.

Here we have a very interesting halacha. If one has a yilid bayis, but the mother doesn't do a tevilah until after the baby is born, the halacha is that it is nimol l'shmoneh. In other words, it is enough to own the mother to make it a yilid bayis. The fact that the mother delays her tevilah is irrelevant. (The is against an opinion in the gemara that holds that the fact that the mother delays her tevilah makes it a case of nimol l'echad, see Shabbos 135b.)

Yet, even though the Rambam says that the baby is nimol l'shmoneh, still the bris is not docheh shabbos. The question is why. If the fact that the mother wasn't tovel doesn't affect the status of the baby, and the baby is still a yilid bayis that is nimol l'shmoneh, so why isn't that bris docheh shabbos?

Rav Chaim deals with this question in Hilchos Milah 1:10. We will iy"h continue this topic in a future post.

Thursday, November 8, 2007

Schach Pasul Part 3

We posted previously on the issue of 4 tefachim of pasul schach rendering an entire succah pasul. I would now like to examine the gemaras on this issue in order to finish explaining the Rambam that we discussed in that post.

There is a halacha that 3 tefachim of airspace in a sukkah's roof pasuls the entire succah. We can pose the following question on this halacha:

How does this law work? One possibility is that the airspace divides the succah in half causing the one succah to now be two separate succahs, each without the requisite 3 walls. Thus, the entire succah is pasul. The other possibility is that the airspace is a psul in the schach. The schach generally all merges together to be one cheftza of schach kosher. If a significant amount of space of three tefachim of airspace exists, we can no longer say that we have one cheftza of schach kosher.

The nafka minah is whether or not the airspace of 3 tefachim has to cut the entire succah in half, or do we say that even a "window" of airspace 3 x 3 tefachim can invalidate the succah. The Rambam clearly says that even windows of airspace invalidate the succah (see hilchos succah 5:9), implying that the airspace is really invalidating the schach, and not dividing the succah in half.

Now, let us pose the same question by schach pasul. I believe that this issue is a machlokes Rav and Shmuel in the gemara.

The first proof to this is that the gemara in succah on 17b when discussing Rav's shitah refers to it as a psul of "haflaga" distancing. This certainly sounds like Rav's opinion is that the succah is divided in half by the pasul schach.

How did the gemara know that this was the sevara of Rav? The gemara earlier suggestes the use of dofen akuma in a situation where there is schach pasul at the side of the succah. This suggestion is made within Rav, and it is my contention that it is only Rav. Shmuel will not agree.

I would like to offer that according to the Rambam, dofen akumah can only fix a psul within the dfanos. Thus, since Rav holds that schach pasul daled divides the succah in half, dofen akumah can then come along and move the dfanos back in place and unite the succah as one. If, however, the schach pasul was invalidating the schach, dofen akumah could not work at all. Dofen akuma is a din in the dfanos.

This approach in Dofen akumah would answer the famous question as to why dofen akumah doesn't work on avir. The Rambam holds that avir invalidates the schach itself, and dofen akumah has no power over that psul.

Thus, the gemara understood, that since Rav is employing dofen akuma in regards to schach pasul, it is clear that Rav is learning the psul as a psul of haflaga.

Shmuel, on the other hand, says schach pasul invalidates the schach itself. For that reason, the gemara says that according to Shmuel even one board of wood 4 tefachim should invalidate the succah (whereas according to Rav this isn't so).

As we explained previously, a board of wood 4 tefachim wide is not a cheftza of schach pasul. Rather, the Rabbis merely did not allow someone to sleep under such schach. The mishna said that such a board of wood does not invalidate the entire succah, and the gemara says this mishna is problematic. The gemara says this only in Shmuel, and I contend that it is davka in Shmuel. Why? Shmuel holds that schach pasul invalidates the schach itself because the schach cannot merge together to be one cheftza of schach kosher.

One can argue in Shmuel that this applies whether the 4 tefachim has a challos shem of schach pasul or not. Why? Because the idea behind Shmuel's psul is that since one cannot use the entire area of the schach to sleep under, so we can't consider it to all be one cheftza. In other words, the psul in Shmuel can certainly be based in the hishtamshus of the schach. If an area of 4 x 4 tefachim of the schach cannot be used the schach is no good.

In Rav, however, we can argue that this is not so. In Rav the 4 tefachim splits the succah in half. In order to do this, the schach as a cheftza must have a challos shem of pasul schach. If not, that schach will merge with all the other schach and connect the various walls of the succah. In Rav's din of merely connecting the walls it is sufficient to have all the schach have one challos shem. In Shmuel, where there is an added halacha that the schach itself is pasul, even a lack of hishtamshus in the schach can pasul it as a "roof".

Therefore, the Rambam, who holds like Rav (as is clear from the fact that he employs dofen akumah by the psul of 4 tefachim) has no problem learning the mishna k'pshuto, that one cannot sleep under a board of wood 4 tefachim, even though it does not actually passul the succah.

Wednesday, November 7, 2007

Kibbud Av V'Aim for Bnei Noach

Many of the commentaries on Parshas Toldos point out that Esau excelled at the mitzvah of Kibud Av V'Eim. This brings to mind a question I once heard: Are Bnei Noach even commanded in the mitvah of Kibud Av V'eim??

As an aside, Chaim B. in this post asks whether these kind of questions make any sense at all. I contend that they do as long as they are put in the proper perspective.

For example, in this case, we are not asking on the Torah Shebichsav why Esau observed the mitzvah of Kibud Av. Rather, we are asking on the Torah Shebaal Peh. What we are asking is, according to the sugyos on Sanhedrin that deal with the chiyuvim of bnei noach, how do those sugyos interpret the story in Parshas Toldos.

The same is true with all the question regarding the Avos keeping the Torah. The question is: according to those opinions that hold that the avos kept the torah, how do they explain various occurences in the Parshiyos. By answering these types of questions we are broadening our understanding of whatever particular halachos we are dealing with.

Getting back to the issue of Bnei Noach, I believe I remember hearing in the name of Rav Elchonon that "middos" are a chiyuv that precedes the torah, and, therefore, that chiyuv applies even to Bnei Noach. In order to be chayav in the 7 mitzvos bnei noach there must be a chiyuv of proper middos first.

With this answer we have not really gained insight into the story of Yitzchak and Esau, what we have gained is a deeper understanding of the chiyuvim of bnei noach. The same can probably said for many of the questions and answers that are of this nature.

Schach Pasul Part 2

In a previous post we discussed a problem in the Rambam regarding a board of 4 tefachim wood used in a succah. The Rambam says that although one cannot sleep under the board itself, the rest of the succah remains kosher. The problem is that in general 4 tefachim of pasul schach can invalidate an entire succah.

We explained that a board of wood of 4 tefachim, although not allowed to be used as schach is not a cheftza of schach pasul. This is the nature of the din d'rabbanan. In order to pasul the entire succah, the board of wood needs to have a challos shem of schach pasul.
I must admit, though, that I left out a lot of the background to this issue. The truth is that the mishna itself says that a board of wood 4 tefachim wide does not passul the entire succah. The gemara (Succah 17b) asks on the mishna, why is this so? Doesn't 4 tefachim of schach pasul always passul the whole succah? The gemara answers that the mishna is only speaking when the board is on the side of the succah and we emply dofen akuma to make the rest of the succah kosher.

One may suggest that the Rambam just quoted the mishna verbatim and expected us to fill in the blanks just like the gemara did. Just like the gemara explained the mishna to mean davka when the board of wood is on the side of the succah, so too that's what the Rambam meant all along. This answer is a dochek though, and I would rather try to explain the Rambam according to the pashtus of his words.

So now we are up against a really strong question, because the Rambam is against the gemara. The gemara thinks that a board of 4 tefachim in the middle of the succah should passul a succah while the Rambam holds it doesn't. This seems impossible to get out of.
However, there is hope. The gemara in fact has two separate shittos that hold that 4 tefachim in general can passul the entire succah. There is Rav's opinion and Shmuel's. The gemara only asks on the mishna from Shmuel. They never mention Rav.

This means that in order to answer the Rambam we have to say that the Rambam follows Rav. We also have to identify the difference between why Rav says 4 tefachim of pasul schach passul an entire succah and why Shmuel says the same din. After we identify the lomdishe chilluk between Rav and Shmuel we have to explain why in Rav's approach the Mishna is not difficult and it is only difficult in Shmuel's approach. All of this will have to fit in our original framework that a board of wood for tefachim is not a cheftza of schach pasul. So our mission will be:

1. Find the difference between Rav and Shmuel's seemingly identical statements that 4 tefachim of pasul schach passul the entire succah.

2. Explain why according to Rav a board of wood 4 tefachim won't passul the whole succah while according to Shmuel it will.

I"yh we will pick this up soon.

Monday, November 5, 2007

Damaging Coins

וכן המרקע דינרי חברו, והעביר צורתן--חייב לשלם משום גורם. וכן כל כיוצא באלו הדברים

Here, the Rambam in Chovel UMazzik 7:11 says that if one rubs someone else's coin until the tzurah is erased (thus devaluing it), the halacha it that this has the status of gerama. That is, it is not considered directly damaging the person's property.

The Ktzos HaChoshen (386:11) asks on this Rambam from a different Rambam in Gezailah 3:4 as follows:

או שגזל מטבע ונסדק או פסלו המלך, או שגזל פירות והרקיבו כולן, או יין והחמיץ--הרי זה כמי שגזל כלי ושיברו, ומשלם כשעת הגזילה

Here, the Rambam says that if one steals a coin and it cracks or the king passuls all coins of that particular tzurah it has the status of one who steals a keli and it breaks, where the halacha is that you pay the value of the item at the time of the gezailah.

So, the Ktzos asks, we see from this second Rambam that even if the coin merely cracks or the king passuls it is considered like direct damage. If so, also by one who rubs out the tzurah it should be considered direct damage. Why then does the Rambam say that it is merely considered a gerama?

Update - the answer: [Before I get into the answer to this I would like to strengthen the question slightly. The gemara in Baba Kama 98a brings Rabbah's statement that if one is shaf matbeah (he rubs out the tzurah on a coin) he is patur. Tosafos say that Rabbah must hold that paslaso malchus, if the king is mevatel a particular tzurah, it does not have a din of nisdak (i.e. as if the coins cracked). Tosafos explain that if Rabbah held that paslaso malchus is like nisdak, so forsure rubbing out the coin would be like nisdak and he should surely be chayav for rubbing out the tzurah.
Tosafos is referring to a gemara earlier regarding gezailah where Rav Yehuda says that paslaso malchus is the same as nisdak in regards to the din of paying kshaas hagezailah. Rav Yehuda basically says that just like if one steals a coin and it cracks the thief pays the value at the time of the gezailah, so too by paslaso malchus. Tosafos is saying that if one held like Rav Yehuda, than surely by shaf matbeih one would be chayav. Since Rabbah holds patur he must not hold like Rav Yehuda. So basically tosafos is saying that the two dinim are interrelated. If it's the type of damage that makes a gazlan pay kshaas hagezailah, it should also be the type of damage a mazik would pay for. The question then is, why does the Rambam distinguish.]

There are two basic suggestions that I will make in the shitas haRambam. The first is the suggestion of the ktzos himself. He says that the Rambam distinguishes between shinui and hezek. According to the Rambam shaf matbeah is a shinui and therefore a gazlan would pay k'shaas hagezeilah. However, it is not a hezek and therefore considered only a gerama.
The other way to go here is to say that the Rambam holds that the hezek to the coin is in the category of garmi (a higher form of gerama) and we will have to say that garmi has the status of hezek, enough to make a gazlan pay kshaas hagezailah. This answer is offered by the Even HaEzel Chovel Umazzik 7:4 who discusses this possibility.

Schach Pasul of 4 Tefachim

ז] נְסָרִים שְׁאֵין בְּרָחְבָּן אַרְבָּעָה טְפָחִים, מְסַכְּכִין בָּהֶן אַף עַל פִּי שְׁהֶן מְשֻׁפִּין; וְאִם יֵשׁ בְּרָחְבָּן אַרְבָּעָה, אֵין מְסַכְּכִין בָּהֶן וְאַף עַל פִּי שְׁאֵינָם מְשֻׁפִּין--גְּזֵרָה שֶׁמֶּא יֵשֵׁב תַּחַת תַּקְרָה, וִידַמֶּה שְׁהִיא כַּסֻּכָּה. נָתַן עָלֶיהָ נֶסֶר אֶחָד שֶׁיֵּשׁ בְּרָחְבּוֹ אַרְבָּעָה טְפָחִים--כְּשֵׁרָה, וְאֵין יְשֵׁנִין תַּחְתָּיו; וְהַיָּשֵׁן תַּחְתָּיו, לֹא יָצָא יְדֵי חוֹבָתוֹ

The Rambam here is saying that in general boards of wood that are 4 tefachim wide are pasul as schach because of a gezairah that someone will then think that a regular roof is good as a sukkah. This halacha is based on an explicit gemara in sukkah. The next part of the Rambam, however, is difficult.

The Rambam says that if one used one board of wood 4 tefachim wide the succah itself is kosher. However, one may not sleep under that particular board, and if you do you aren't not yotzei. The difficulty here is from the following Rambam, also based on a gemara:

בְּסֻכָּה גְּדוֹלָה, סְכָךְ פָּסוּל בָּאֶמְצָע--פּוֹסֵל בְּאַרְבָּעָה טְפָחִים, פָּחוּת מִכָּאן כְּשֵׁרָה; וּמִן הַצַּד--פּוֹסֵל בְּאַרְבַּע אַמּוֹת, וּפָחוּת מִכָּאן כְּשֵׁרָה

Here the Rambam says that if one has schach pasul (e.g. metal rods) of 4 tefachim in the middle of the sukkah the entire succah is pasul. Only if the 4 tefachim are on the side of the sukkah is the sukkah kosher because then we can employ the rule of dofen akumah. One may, perhaps, suggest that the earlier Rambam we quoted is only talking about when the 4 tefachim board of wood is on the side of the succah. Some, I believe, do suggest this. However, this answer is a dochek. The pashtus is that the earlier Rambam was talking about where the 4 tefachim board of wood is in the middle of the sukkah and still the entire succah is not pasuled. The question is, what is the difference between 4 tefachim of schach pasul in the middle of the succah and a 4 tefach board of wood in the middle of the succah?

Update -the answer: I think that really the only way to go here is to say that when the chachamim invalidated a board of wood 4 tefachim wide it did not have the exact same status as actual schach pasul. The question is exactly how to define this distinction. The way I thought to explain was as follows:
Schach pasul has a challos shem in it that it is just that - schach pasul. It is a challos in the cheftza of the schach. However, by a neser of 4 tefachim the chachamim never assured the board in the cheftza, i.e. they never said that the board of wood has a challos shem of schach pasul, rather it is just assur to be used as schach.
You may ask: what in the world is the difference? In either case, it is assur to use the board of wood as schach! What difference does it make if there is a challos in the cheftza or not?
The answer is the same anytime there is a gavra/cheftza chakira. If something is assur in the cheftza than other "satellite" dinim will be affected. We know that schach pasul is assur to be used as schach. This is obvious. However, there is another area of halacha that schach pasul can affect. That is, of course, the ability for schach posul to pasul the rest of the succah. This din is dependant exclusively on the fact that the schach pasul has a challos shem in the cheftza of schach pasul. Why is this so? That issue gets into the lomdus of why it is that schach posul of 4 tefachim passuls the entire succah at all. In the future, I hope to iy"h get into this issue but it really involves the gemaras as well. (Asher M. in the comments already stated the main idea with regards to this issue, namely that 4 tefachim of schach posul passuls by "dividing" the succah in half and that a board of 4 tefachim doesn't act as a "divider". But, as I said, this issue gets more involved with the gemaras, so we'll leave it off for now.)

Sunday, November 4, 2007

Paam Achas B'yom Bchol Yom

We've mentioned in the two previous posts an excellent shiur by Rav Hershel Schachter on the issue of earning a living according to halacha (found here).

In the course of the shiur Rav Schachter mentioned a general rule that if a mitzvah is said in the torah and no time is given for the mitzvah then the assumption is that the chiyuv for the mitzvah is once a day every day. [I'm not sure if Rav Schachter means that this is an actual "rule" or just more like a "rule of thumb" but in any case I will briefly analyze what he said.]
Rav Schachter cited two proofs (or maybe examples) of this rule. One is from the Rambam's shitah that the mitzvah d'orayssa is to daven once a day every day. We see from this that a mitzvah (i.e. davening) which the torah doesn't give a time for, the assumption is once a day every day.

The second proof came from Nesius Kapayim. In O.C. 228:3 the halacha is brought as follows (rough translation):

If [the cohen] already ascended once on this day, he no longer transgresses an aseh [if he doesn't ascend the duchan] even if they call him up [to duchen].
Once again we see from this halacha that the assumption is that the mitzvah of nesius kapayim is once a day every day.

After doing a bit of research, this proof seems somewhat difficult to me. This halacha comes from a gemara in Rosh Hashana 28b and a tosafos there. The Chasam Sofer in O.C. teshuva 22 points out that if a kohen was already called up for shacharis and he were then called up for mincha he would certainly be chayav to duchen. (Generally, we don't duchen at mincha because of shichrus.) Also, it is pashut that such a kohen would make a blessing on the duchening, even though he already made a bracha at shacharis. The only issue is if a different minyan of shacharis mispallelim call up the kohen. Then we can ask if he is chayav to duchen and whether he should make another bracha.

This pshat of the chasam sofer would seem to go against the assumption that the chiyuv of nesius kapayim is once a day every day. On the contrary, if we called up a kohen for mincha he would be chayav to duchen again!

Further, we can now raise a question. We know that on Yom Kippur we duchen more than once. We also make a bracha on every duchening. If the actual chiyuv to duchen is only once a day every day, why make a bracha on each duchening??

Shnei Kesuvim Hamachishim Zeh es Zeh

In the previous post we mentioned an excellent shiur from Rav Hershel Schachter (here) where he discusses earning a living in halacha. In the course of this shiur he mentions the well-known gemara in Berachos 35b that has a machlokes between Rabbi Yishmael and Rav Shimon Bar Yochai in terms of how to reconcile the pasuk of v'asafta d'ganecha (implying one should work to earn a living) with the pasuk of lo yamush sefer hatorah hazeh (implying one should always be learning torah).

Rav Shimon Bar Yochai says that the answer to the contradiction is that when klal yisroel is doing the will of Hashem there work is done by others. Otherwise, they have to work for themselves. Rav Yishmael says that derech eretz and learning should work together hand in hand.

So whom do we pasken like?

It is pretty clear that we pasken like Rav Yishmael. However, Rav Schachter brings what seems to be a totally novel reason as to why this is.
He explains that there is a general rule of shnei kesuvim hamachishim zeh es zeh, that if you have two pesukim that contradict one another, so we use the pasuk hashlishi, a third pasuk, to answer the contradiction.

What do we do if we have no third pasuk?

Rav Schachter explains that in such a case it is a machlokes between Rav Eliezer and Rav Yehoshua in Pesachim 68b. There the issue is that one pasuk implies Yom Tov is "kulo lashem" and the other implies it is "kulo lachem". Rav Yehoshua says that it's therefore either/or whereas Rav Eliezer says that we "kvetch" a pshat that it is chatzi lachem and chatzi lashem. We pasken like Rav Eliezer. Rav Schachter explains that from here we see a yesod that if we have two pesukim that contradict each other with no third pasuk we are supposed to "kvetch" a pshat. That is exactly what Rav Yishmael is doing in Berachos! Therefore, the halacha is like Rav Yishmael!

This explanation seems to be a huge chiddush, does it have any sources anywhere?

A Mitzvah to Earn a Living?

Rav Hershel Schachter in a shiur on the topic of the halachos of earning a living (here) brings an interesting source that it is actually a mitzvah to earn a living. The Rema in Siman O.C. 245:4 is speaking about the issur to set out on a journey before shabbos. The halacha is that lidvar mitzvah it is permitted. The Rema there adds that some say that a trip for business purposes is also considered a dvar mitzvah.
Now, I would have assumed that the Rema doesn't mean that a business trip is an actual mitzvah, he just means that it has the same status as a mitzvah in terms of this halacha of going on a journey before shabbos. However, the Gra on this Rema brings a Rashi in Baba Metziah that when the gemara darshens the pasuk of "v'hodata lahem es haderech yelchu bah" - zu bais chayehem, it is referring to earning a parnassah. Thus, it would seem from this Gra that we actually have a Biblical source that one should earn a parnassah.
My only question on this is: if so, why isn't earning a living in minyan hamitzvos??

Thursday, November 1, 2007

Lomdus in Tefillah

In one of my previous posts (here) I discussed the lomdus of selichos. In that post I quoted Rav Soloveitchick that there are two types of tefillah. There is the formal tefillah of shemoneh esrai and the informal tefillah of selichos (called zeaka - crying out to Hashem).
What is fascinating about this piece is how much of it can be derived from analyzing the siddur itself, with no other needed outside knowledge. Consider the fact that most of the vort is derived from the following points:

1. Both selichos and shemoneh esrai are followed by a kaddish with tiskabel.
2. Both selichos and shemoneh esrai are followed by a tachanun. (Here it may help to know that the Rambam says that tachanun merges with shemoneh esrai, but is this knowledge absolutely necessary?)

These are the similarities between the two. Here are the differences:

1. Shemoneh Esrai is silent, with feet together, and a standard nusach.
2. Selichos has none of these elements.

At this point it may help to know the Rambam's categorization of zeaka, but, again, it isn't necessary.

What I am pointing out is that the siddur is it's own entity that can be analyzed even without resorting to other sources. The lomdus of the siddur can be derived with a very "local" analysis. So next time you pick up a siddur, try to see it through a lamdan's eyes!

Tuesday, October 30, 2007

Hallel and the Challil

This post is a bit long and involved, but if you stick with it I think it's followable:

The Mishna in Erchin on 10a says that there are 12 days that during the time of the shiras haleviim (when the leviim sang in the bais hamikdash) they would also play the chalil (a certain musical instrument). The 12 days were:

1. the day of the shechitas korban pesach
2. the day of pesach sheni
3. the first day of pesach
4. the first day of shavuos
5. the 8 days of succos

Rashi on the mishna makes a somewhat perplexing statement that on the days of the shechitas korban pesach we say hallel. Where is there any mention of hallel in the mishna?

The Griz in Hilchos Korban Pesach writes that Rashi here is following the Yerushalmi that compares chalil to hallel. That is, any time the chalil is used hallel is recited.

Rashi, though, makes another interesting comment. The pashtus would've been that any time the chalil is used, individuals in their davening would say hallel. Rashi, however, says that the hallel is sung by the leviim in the mikdash instead of the shir shel yom. This Rashi needs to be explained.

Before we get into this issue, let's discuss precisely what Rashi is saying. Rashi in the beginning of Perek HaChalil says explicitly that the chalil was used at shacharis in the bais hamikdash. If so, Rashi here is saying that while they banged the chalil during shacharis, the leviim sang the hallel instead of the shir shel yom.

It's fascinating because the in Meseches Sukkah 55 says that on sukkos the tehillim of hu"mbi (an acronym) were recited. Rashi says this recitation took place during mussaf. The turei even in Rosh Hashana 30b says that Rashi must be saying this because at Shacharis the regular shir shel yom is recited. The Avnei Nezer 24:1 points out that the turei even in mistaken! Rashi says explicitly in Erchin that on sukkos the hallel replaces the shir shel yom. Even more interesting, I saw in the chasam sofer (Beitzah Daf 5) that on these days we really don't know what the leviim said in the Bais Hamikdash so one shouldn't say Hayom Yom... shebo hayu haleviim omrim.. because that would be dover shekarim!

Getting back now to our main issue, why does Rashi learn that hallel replaced the shir shel yom and was sung by the leviim? If you look at the gemara on the mishna, the gemara clearly says that these days corresponded to days where yechidim said hallel in their davening... but that the leviim said hallel as the shir shel yom seems to be from out of nowhere!?

Now, if you take a look at the gemara in Erchin, you will see that the gemara actually says that there were 18 days that full hallel was said. First of all, the gemara adds the days of chanuka. Rashi explains that although on Chanuka full hallel is said, still the chalil isn't beaten because chanuka has no korban mussaf. You may ask, if the chalil is beaten at shacharis, who cares if there is no korban mussaf. The Chikrei Lev says that, for whatever reason, korban mussaf and the challil are related. I thought to answer with what I saw in the Igros HaGrid, that without a Korban Mussaf there is no kedushas hayom. If that's the case then the chiddush may be that since chanuka has no kedushas hayom, so there is no challil.

All this answers for chanuka, but what about for the two days of shechitas korban pesach? On those days we do bang the challil, but the gemara doesn't mention that we say hallel on those days. Why not?

Tosafos answer that really on those days we do say hallel, but that is only in the times of the bais hamikdash. That is why the gemara doesn't mention those days.

Tosafos is therefore saying that in truth there is an obligation of hallel on these days of the shechitas hapesach. We will return to this shitah a little later.

There is another machlokes rishonim regarding chatzi hallel that I believe is very relevant. Tosafos there in Erchin (d"h Shemoneh Asar) says that any time one doesn't say a full hallel there is no chiyuv at all to say the hallel. Rather, it is only a minhag. This is explicit with regards to Rosh Chodesh in the gemara in Taanis 28b. The Ramban however (Shabbos dafei HaRif 11b see Ran there) argues that the minhag is only on Rosh Chodesh. On the second days of Pesach, however, there is a bona fide chiyuv to say a chatzi hallel. So the Ramban argues that there could be a chiyuv of chatzi hallel.

In a similar fashion, the Griz in Chanuka 3:4 points out that by the hallel by korban pesach the "third group" often didn't finish saying the whole hallel (see Pesachim 64b). The Griz asks, how is there a chiyuv of less than full hallel? The Griz asks the same question by the hallel of the seder and the hallel on nissim (see there). He answers based on a Rav Hai Gaon that there are two dinim in hallel. There is krias hallel, in which the whole hallel is recited, and there is a din of shiras hallel (where you just sing praise to God) in which it's a chiyuv, but you need not say the whole thing.

This distinction of the Griz may work in the Ramban as well. The chiyuv on the second days of Pesach is a chiyuv of shiras hallel and not krias hallel. Thus, the entire thing need not be recited.

Now, if we were to view the gemara in Erchin through the eyes of the Ramban, when the gemara says that there are 18 days when one must finish hallel, it probably means as opposed to the other days where there is only a chiyuv of chatzi hallel (or shiras hallel as the Griz may say).
If so, on the days of korban pesach there is no chiyuv of full hallel (in contrast to Tosafos) , only a chiyuv of shiras hallel. This is, as the Griz pointed out, explicit from Pesachim 64b that by korban pesach the third group never finished reciting the full hallel. The question of Tosafos would now swing back on the Ramban. If there is no chiyuv of full hallel on the days of korban pesach why is there banging of the chalil on those days?? (Remember Tosafos answered that there really is a chiyuv of full hallel on the days of korban pesach and the gemara only omitted it because it only applied during the bais hamikdash. We are suggesting that the Ramban disputes that based on Pesachim 64b.)

This is where Rashi steps in. Rashi in Taanis on 28b is mashma that he agrees with the Ramban's position that there is a chiyuv of chatzi hallel. Rashi here then is now stepping up and answering the question on the Ramban. If there is no chiyuv for a full hallel on days of korban pesach, why do we bang the challil? The answer is that the chiyuv of the challil is not dependent on the individuals recitation of full hallel during davening. Rather, the chiyuv depends upon the recitation of the leviim over the korbanos. The gemara in Pesachim 64b says explicitly that the leviim said hallel while the korban pesach was brought. This is the chiyuv of shiras hallel of the Griz. That chiyuv is mechayiv challil because the challil accompanies the leviim when they sing hallel in the mikdash.

The gemara in Erchin, however, was merely listing the days where individuals say full hallel in their davening. This does not apply on the days of korban pesach. However, on all days where this does apply there is a general rule that the leviim also sing the hallel on the korban tamid. Thus, on those days the challil bangs during the korban tamid.

The rule therefore is that the challil is used with a korban that the leviim say hallel on. When is this? Any time the individual says full hallel and additionally by the korban pesach as the gemara says in Pesachim 64b.