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.

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.

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.

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.

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.

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.

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.

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.

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.

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.)

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??

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!