Friday, February 29, 2008

Sources for the Prohibition of Listening to Music

There are a number of sources for the prohibition of listening to music nowadays:*

Mishna Sotah 9:11

From the time that the Sanhedrin ceased to function, there ceased to be music [alt : song] at beit haMishtaot.

Gittin 7a

Mar Ukva was asked whence we know that singing is prohibited.
He answered: because of the verse in Hosea [9 :1]: "Do not rejoice,
o Israel, as the other nations rejoice."

Rambam Hilchot Taanis 5 :14

So too [that is, besides various other decrees] they [the
Rabbis at the time of the destruction of the Second
Temple] decreed that no one play upon musical
instruments; moreover, it is forbidden to rejoice with,
or listen to, all kinds of music and all that produce the
sound of music - and even singing of voice alone,
over wine, is forbidden as it is written: "with song
they shall not drink wine" [Isaiah 24:9]. It has
already become customary for all of Israel to say
words of praise or songs of thanksgiving to G-d, and
similar songs, over wine.

Orach Chayim 560:3

So too they decreed against the playing of musical
instruments and all forms of music and all that
produce sound of music to rejoice with. Moreover, it
is forbidden to listen to them. All this is on account of
the destruction of the Temple.

Rema: There are some opinions that the prohibition against
musical instruments is only for those who listen with
regularity such as the kings who arise and go to bed
with musical instruments, or for musical instruments
at parties and feasts [that is, where there is drinking].

And even songs [vocal music] with wine is forbidden
as it is written "With song they shall not drink wine"
[Isaiah 24 :9]. It has already become the custom of all
Israel to utter, over wine, words of praise or songs of
thanksgiving and commemorations of G-d's

Rema: And so too for the purpose of a mitzvah, such as in
the house of a groom and bride, it is all permissible

There is much recent discussion in the poskim about how the prohibition works nowadays. Here is a list of some sources:

Iggros Moshe O.C. 1:166
Yechaveh Daas 1:45
Az Nidberu 8:58
Tzitz Eliezer 15:33
Seridei Aish 2:12

*For further discussion on this topic see Rabbi Aharon Kahn's Music in Halachic Perspective in Volume 14 of The Journal of Halacha and Contemporary Society. And, of course, for final rulings consult your local competent halachic authority.

Are Pets Muktzah?

The Gemara in Shabbos 128b states that animals are muktzeh. The reason behind this is that animals have no use on shabbos. They would then be in the category of muktza machamas gufo (see Mishna Berurah 308:126). The question is, does this issur muktzeh apply nowadays to pets? Or, is it only in previous times when animals were generally used by people for labor purposes?

There is a machlokes rishonim whether an animal that can be used on shabbos to quiet a crying baby is considered muktzeh or not. The Baalei Tosafos (Shabbos 45b d"h hacha) are stringent in this case, although they cite others who are lenient. There are two basic reasons given as to why we would be strict:

1. Quieting a baby is not sufficient use to be considered not muktzeh.

2. Lo Plug Rabbanan - we make no distinction between different kinds of animals, no matter the circumstances.

Based on the stricter opinion in rishonim R' Moshe Feinstein (Iggros Moshe OC 4:16), R' Shlomo Zalman Auerbach (Shmiras Shabbos K'hilchasa 27 - see footnote 96), and R' Ovadia Yosef (Yabiah Omer 5:26) all rule that pets are muktzeh on Shabbos even nowadays.*

*For more on this topic see the Journal of Halacha and Contemporary Society Volume 23 "Halachic Perspectives on Pets" by Rabbi Howard Jachter. And, obviously, for final rulings seek the psak of your local competent halachic authority.

Thursday, February 21, 2008

Zachin L'Adam Shelo B'fanav

The halacha is that if something is considered a zechus for someone we can employ the rule of zachin l'adam shelo befanav. Meaning, that if something is considered to be beneficial for someone, I can act for that person without being appointed a shliach. I can do it even without his knowledge.

What exactly is considered to be a zechus though?

The Ktzos HaChoshen (195: 2,3) discusses this issue. The Ktzos brings a machlokes haposkim regarding a matanah. What if I pick up a matanah on someone's behalf. Some hold that this is obviously a benefit. However, others hold, based on the pasuk of Sonei Matanos Yichyeh, that this may not be considered a zechus.

The Ktzos also discusses the possibility of zechus by a sale. What if there is a real good deal and I want to buy the item for someone and be zocheh the purchase for him? Can we say that this is a zchus? The Ktzos wants to suggest that this would be a valid zechiyah. See there for the full discussion.

Thursday, February 14, 2008

Birchas HaMitzvos for Women by Mitzvas Aseh SheHazman Gerama

Rambam Tzitzis 3:10

וְנָשִׁים וַעֲבָדִים שֶׁרָצוּ לְהִתְעַטַּף בַּצִּיצִית, מִתְעַטְּפִים בְּלֹא בְּרָכָה; וְכֵן שְׁאָר מִצְווֹת עֲשֵׂה שֶׁהַנָּשִׁים פְּטוּרוֹת מֵהֶן--אִם רָצוּ לַעֲשׂוֹת
אוֹתָהּ בְּלֹא בְּרָכָה, אֵין מְמַחִין בְּיָדָן. טֻמְטוֹם וְאַנְדְּרֻגִּינוֹס, חַיָּבִין בְּכֻלָּן מִסָּפֵק; לְפִיכָּךְ אֵין מְבָרְכִין, אֵלָא עוֹשִׂין בְּלֹא בְּרָכָה

The Rambam here paskens that if a woman chooses to do a mitzvas aseh shehazman gerama they don't make a beracha. The Raavad argues that they do based on a gemara in Kiddushin 31a. The Gemara there essentially implies that if we hold a blind person is patur from mitzvos he would still make a beracha if he does those mitzvos. So too by women, they would make birchas hamitzvah on mitzvas aseh shehazman gerama. Tosafos there brings in the name of Rabbeinu Tam the same psak as the Raavad.

What will the Rambam do about the proof from Kiddushin? The Gra in Shulchan Aruch explains the Shitas HaRambam with a simple answer. The Rambam holds that even if a blind person is patur from mitzvos on a d'orayssa level, he would still forsure be chayav midrabbanan. Therefore the chiyuv midrabbanan is what is mechayev him in the birchas hamitzvos. Women, on the other hand, are totally patur from mitzvas aseh shehazman gerama. Therefore, by women there is no beracha, even if they opt to do the mitzvah.

The Gra also explains why the Rambam holds that women should not make a beracha on mitzvas aseh shehazman gerama. The reasoning is that in a birchas hamitzvos we say "v'tzivanu" - and He commanded us. Since women were never commanded in these mitzvos, therefore they cannot say this beracha. Why then do we make a beracha on mitzvos midrabban, if Hashem never commanded us? The gemara in Shabbos 23a asks this question and explains that Hashem did command us to follow the words of the Chachamim.

The final line of the above quoted Rambam paskens that in situations of doubt, one doesn't make birchas hamitzvos. This psak of the Rambam is repeated in Milah 3:6 where the Rambam says as follows:

וְכֵן אַנְדְּרֻגִּינוֹס--אֵין מְבָרְכִין עַל מִילָתוֹ, מִפְּנֵי שְׁאֵינוּ וַדַּאי

The Raavad here argues that even in a safek situation the beracha is still made. This machlokes traces back to a machlokes Abaye and Rava in the above mentioned sugya in Shabbos 23a. Some Acharonim say that this machlokes centers around what exactly the issur of beracha l'vatala would be in this case (assuming you weren't supposed to make the berachah). Is it an issur d'orayssa of Lo Sisa or not?

Tuesday, February 12, 2008

Bekius vs. Iyun

Bekius vs. Iyun

Bekius vs. Iyun has always been an issue that Yeshiva bochurim struggle with. On the one hand, it cannot be disputed that the greatest Gedolei Torah have been incredible bekiim. The argument therefore runs, that if you want to be a gadol b'torah, you have to be a baki. Further, even the greatest lomdim such as Rav Chaim Brisker, were also great bekiim. They certainly seemed to know everything. Even they apparently understood that in order to be a lamdan, one must have a great breadth of knowledge.

However, most Yeshiva bochurim quickly learn that in Yeshivos the stress is not on bekius. Quite the opposite in fact. Often times, the "better" shiurim are more biiyun, and they go the slowest. It's not uncommon for a high level shiur to cover 30 blatt or less over an entire year. Why is this the case?

There are a couple of classic reasons that are commonly given:

Reason #1: If a Yeshiva only learns bekius, what exactly are the Rebbeim there for? Most Beis Midrash level bochurim are able to learn the simple pshat of Gemara and Rashi themselves. A Yeshiva has to be dedicated to learning at a higher level or else it is nothing more than a Beis Midrash with a nice library of seforim.

Reason #2: How much time can one even spend on bekius? In order to do a daf of gemara it takes about 30 to 45 minutes if you are learning the blatt from scratch, assuming you have good comprehension skills. This means that in a three hour seder of bekius, learning only Gemara and Rashi one can end up covering 3 blatt bekius. If a person learned bekius for both first and second seder he could theoretically cover 7 blatt from scratch! Even more if he is doing chazarah on blatt he has already learned! Is it really sane to go through 7 blatt a day?* Of course not. It's way too much for any normal brain to really retain. So your other option is to go over a little less with chazarah. But, again, doing this kind of thing all day is not very enjoyable. Most people would prefer to set a side a little portion of their day for bekius and chazarah, and the rest for going biiyun. In yeshivishe terms, it's a more geshmak way of using your times. Therefore, yeshivos focus on what is more geshmak.

*This assumes there is no "Law of Diminishing Returns" when it comes to learning. In reality, if a person on average takes 45 minutes to learn one blatt, it will take him longer and longer with each successive blatt, as he becomes more and more tired of the process.

The Problem

Here, then, is where we come to the problem that many bochurim face. Both of these reasons are very b'dieved. Since Rebbeim need jobs... therefore we are learning b'iyun! Since it's too hard to learn bekius with chazarah all day... therefore we want to make it more geshmak!? Isn't torah learning supposed to be hard? Perhaps bekius and chazarah is exactly what is meant by the phrase "memis atzmo uleha". One is supposed to struggle in Torah! Why are we taking the easy way out. Is this some kind of eis laasos L'Hashem?? If so, maybe it's only for the masses. But surely one who truly aspires to gadlus should pursue a breadth of Torah knowledge! This is the issue that I will leave you with. Perhaps we will return to this issue in the future, iy"h. In the meantime, I would love to hear your comments.

Update 2/28/2008: This post was apparently somewhat misleading. Please see here for a clarification of my position on these issues.

Sunday, February 10, 2008

Earning a Living - Part 2, Minyan Hamitzvos

In a previous post we discussed a point made by Rav Hershel Schachter regarding the halachos of earning a living. Here is a quote from that post:

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??

I recently discovered an answer to my question of why this mitzvah wouldn't be in minyan hamitzvos. This gemara in Baba Metziah actually discusses a number of different mitzvos learnt from this pasuk. For example, the mitzvah of bikur cholim is also learnt from this pasuk.

In Shoresh Sheini of the Rambam's Sefer HaMitzvos the Rambam discusses the mitzvah of bikur cholim and other mitzvos learnt from this pasuk. The Rambam sets down a principle that, in general, dinim learnt out from the 13 middos are not part of minyan hamitzvos (even if they may be d'orayssa). The only exception is if the gemara specifically indicates that the mitzvah should be counted in the minyan hamitzvos. The Rambam says that the B'Hag disagreed with this principle and therefore counted mitzvos like bikur cholim as separate mitzvos in minyan hamitzvos. The Rambam argues and says that in reality bikur cholim and the other mitzvos learnt from this derasha are subsumed under the mitzvah of v'ahavta l'reacah kamocha. The Rambam reiterates this in hilchos aveil 14:1 where he says that although bikur cholim, nichum aveilim, etc. are part of v'ahavta l'reacha kamocha, they are also independent mitzvos, but only m'drabbanan. So we see that the mitzvos learnt out of this pasuk are actually subject to a dispute between the Rambam and the Baal Hilchos Gedolos as to whether to count these as separate mitzvos, or to include them as part of other mitzvos.

This answers my question regarding earning a parnassah. If we say, like Rashi, that one of the derashos from this pasuk is to earn a living, whether its counted in minyan hamitzvos would seem to be a dispute between the Rambam and the B'hag.

The Rambam also cites the B'hag's opinion that fearing talmidei chachamim is its own mitzvah in minyan hamitzvos. Again the Rambam argues that the derashah of es Hashem Elokecha tira - l'rabos talmidei chachamim is only a derasha, and not to be included in minyan hamitzvos. In fact, in mitzvas aseh 209 the Rambam is consistent and says the mitzvah to fear talmidei chachamim is subsumed under the mitzvah to honor them, which is an explicit pasuk of mipnei seivah takum. This is in contrast to honoring and fearing one's parents which is counted as two separate mitzvos.

Wednesday, February 6, 2008

Stealing Karka and Avadim

The Raavad in Hilchos Gezailah 9:1 seems to hold that there is a difference between stealing land and stealing avadim (slaves). By stealing land if the land is later swept away by a river it is no longer considered "b'ein" (it is no longer in existence). The thief is then completely patur from returning the land because of a general rule that "karka eina nigzeles" (land cannot halachically be stolen). The idea is that even though when you steal something you are chayav in onsin, this is not the case when you steal land.

In general, avadim are compared to land. Yet, the Raavad says that by avadim, if after they are stolen they die, you do have to pay. The question is, isn't there also a rule of avadim not being nigzeles.

Rav Chaim answers that while it is true that there are no kinyanei gezailah by either avadim or karka they are still not identical. This is because by karka, not only is there no kinyanei gezailah, there is also no maaseh gezailah. It's not only that land cannot halachically be stolen, it cannot physically be stolen either. By avadim, on the other hand, although there is no kinyanei gezailah, there does exist a maaseh gezailah.

Rav Chaim explains that there are 2 chiyuvei tashlumin a gazlan can incur. The gemara says that if a shinui happens to the object that gazlan must pay. In order to be chayav in this payment there must be kinyanei gezailah. However, there is another chiyuv of tashlumin if the item stolen is no longer b'ein. This chiyuv can be generated even with a maaseh gezailah alone.