Monday, March 31, 2008

Eating Matzah on Erev Pesach

The Yerushalmi in Pesachim in the beginning of the 10th perek says from R' Levy that anyone who eats matzah on Erev Pesach it is like he is boel arusaso b'beis chamav. From here we learn that on Erev Pesach one should not eat matzah. There is a machlokes rishonim as to how much of the day of erev pesach is the prohibition in effect.

On Daf 15b in Dapei HaRif of Pesachim the Baal HaMaor and the Milchamos argue about this issue. The Baal HaMaor says that the prohibition only exists from the time the issur chametz sets in 6 hours into the day of erev pesach. In other words, the prohibition to eat matzah on erev pesach is directly linked to the prohibition of chametz on erev pesach.

The Ramban argues. He holds that from the Yerushalmi it is clear that the prohibition is all day. The proof of the Ramban from the Yerushalmi isn't all that clear.

In the Yerushalmi there is another shitah brought from R' Yehudah ben Besaira who makes the statement - whether chametz or matzah one can't eat it. The Ramban says, from the fact that he said nothing about 6 hrs. into the day, it follows that the issur is all day.

The Ran (dapei harif 16a) asks on this proof. Even if we assume that this is what R' Yehuda ben Besaira meant he is still linking the issur matzah to the issur chametz. R' Yehuda ben Besaira is merely l'shitaso that chametz is also assur all day on erev pesach. We, who hold that the issur chametz is only from chatzos should apply the same issur to matzah. In other words, R' Yehuda ben Besaira is linking the issur chametz to the issur matzah, so the Ramban has no proof whatsoever.

R' Moshe in Iggros Moshe Chelek 1:155 addresses this machlokes rishonim. He is trying to determine how we should pasken. Should we be machmir like the Ramban or not?

R' Moshe makes a lengthy argument to try to show how the Yerushalmi actually fits with the Ramban. It seems to me that the thrust of his argument relies on the logic that if the tannaim don't say anything we should assume that the issur is all day. It is a much more lengthy argument though, so I don't want to oversimplify it - take a look yourself.

Then R' Moshe writes the following (rough translation):

And therefore even though the issur of matzah on erev pesach is only midrabbanan, that according to the rules of psak we that the Rema writes in Choshen Mishpat 25:2 we should go like the lenient opinion that the issur is only from the zman issur chometz, nevertheless since it has been explained that the simple pshat of the Yerushalmi is like the Ramban that it is assur all day because the explanation of the Baal HaMaor and the Ran is dochek, therefore one should be machmir like the Ramban and the Rambam acc. to the Maggid Mishneh and other Rishonim that assur all day, and as is the minhag in our countries.

This seems difficult to me. R' Moshe is ruling like the Ramban because the pashtus of the Yerushalmi is like him. But the Ran himself was talking about the same Yerushalmi and said that the Yerushalmi isn't like the Ramban. And the Baal Hamaor was also talking about the same Yerushalmi, so he also didn't think the pashtus was that way. Essentially we have rishonim arguing about what the pashtus of the Yerushalmi is. Also, R' Moshe took several columns to explain how the Yerushalmi follows the Ramban (to answer a question of the Ran), so how is that the pashtus?

On the other hand, R' Moshe does say that the minhag is to be machmir, so for that reason maybe one should be machmir.

R' Moshe also deals with the analogy to an arusah b'beis chamav. He isolates two ways of understanding the issur of arusah b'bais chamav. One is that it is the same as the issur penuyah, essentially she isn't yet your wife. The second approach is that only bias mitzvah is muttar (like for mitzvas onah or for pru urvu). In the arusah period there is no mitzvah - so m'meilah biah is assur.

In the second approach the analogy is smooth. By matzah also, we aren't at the zman mitzvas matzah yet, just the preparatory stage - so it is assur. R' Moshe points out that in the first approach it is difficult because if the issur arusah is the same as penuya - so matzah should be assur all year! Why only on erev pesach?

R' Moshe says the two derachim would actually break down into the shitas baal hamaor and Ramban. In the second approach the ides is that in a preparatory stage we assur. If so, it makes sense that all of erev pesach is considered preparatory. R' Moshe even says that 30 days before pesach it could've been assur, but the Rabbanan were meikil. He says this also explains the minhag not to eat matzah from Rosh Chodesh Nissan until Pesach.

In the first approach where the analogy isn't smooth, R' Moshe says pshat must be that we assur matzah any time that there are "dinei pesach" just like we assur an arusah who has "dinim of ishus". Thus, the issur would only be in the zman of dinei pesach - i.e. when chametz is assur.

All of this I also have a bit of difficulty with. I thought that within the analogy the Baal HaMaor's approach is surely more logical (to relate the issur matzah and the issur chametz). Why do we only assur matzah because of arusah b'bais chamav? Why not assur lulav before sukkos and sitting in the sukkah as well sukkah? And marror before Pesach? How would R' Moshe explain this? If the issur is not to do a mitzvah in the preparatory time preceding the mitzvah all these cases should also be assur.

Therefore, it would seem that the idea is that when chametz is assur you might think that matzah is now muttar. Just like an arusah, if she is now assur to other men and ishus started, one might think she is muttar to her husband. Thus, we say no. The heter to her husband is only after nissuin, and the heter for matzah is only after Pesach begins. If you tie the issur matzah into chometz it makes much more sense why the issur applies here and not to other mitzvos on erev yom tov. The issur chametz and heter matzah are related. Therefore, the Yerushalmi says no, there is a erusin period where you do not yet eat matzah.

These are some issues that I had with this Iggros Moshe. Any insights would be appreciated.

Sunday, March 30, 2008

Do Angels Know Aramaic?

The Gemara in Shabbos 12b mentions that one shouldn't daven in aramaic because "the angels don't understand aramaic". The clear mashmaos of the gemara is that one is allowed to pray to angels who will then deliver the prayer as messengers.

Rav Ovadiah Yosef in Yabia Omer Chelek Alef Siman 34 deals at length with this gemara. He brings the Kaf HaChaim O.C. 581:26 that asks - isn't it Hashem Himself that answers our prayers? Doesn't it say in the Torah "K'Hashem Elokenu B'Chol Koreinu Eilav"? Rav Ovadiah answers that the pasuk applies b'tzibur, when the Shechina is shoreh. Rav Ovadiah brings a proof that this is the case because we are also lenient in davening by kivrei avos. Again, we see that b'yichidus we don't mind davening in this type of fashion.

This issue of davening by kivrei avos is also a very big discussion. The Iggros Moshe O.C. 5:43:6 deals with this issue. He brings the Shach in Y.D. 179:15 who brings a MaHarach that goes back and forth on the issue. When dealing with this issue we also have to deal with the issur of Doresh El HaMeisim.

He also brings a minhag from R' Chaim Volozhin not to say Malachei Rachamim and instead subsitute the phrase Avos HaOlam Ahuvei Elyon to avoid the possible issur of davening to the angels.

All of this is related to whether you actually can pray in aramaic if you are b'yichidus. The Yabia Omer concludes that in fact you can't because the angels do not understand that language.

Many Briskers are very machmir in this issue and do not say Malachai Rachamim. They hold that there are significant mekoros prohibiting davening to any being but Hashem and that it is even m'ein avodah zarah to pray in any other fashion.

As an interesting aside Tosafos in Shabbos d"h She'ein mention that the angel Gavriel is an exception and does understand aramaic. He brings a gemara in Sotah 33a to prove it because it says that the angel Gavriel taught Yosef HaTzaddik all 70 languages.

Finally, Tosafos end with an interesting question. How can it be that the angels don't understand aramaic if they can even understand what a person is thinking!?

*Note - When I speak of "davening to angels" of course I mean as mediators to Hashem. I thought that was self understood. Sorry if it was unclear.

Thursday, March 27, 2008

Mitzvos Tzrichos Kavana

In the previous post we mentioned a shittah that even though by most mitzvos we say mitzvos ein tzrichos kavana by mitzvos of amirah kavana is needed forsure. Rav Soloveitchik addresses this distinction in Iggros HaGrid Tefillah 3:4. He asks, what would be the logic of this distinction? If kavana is needed it should be needed by all mitzvos. Why distinguish between mitzvos of amirah and other mitzvos?

Rav Soloveitchik answers that when we say mitzvos need kavana the pshat isn't that there is an additional requirement of kavana besides the maaseh mitvah in order to be yotzei. Rather, the pshat is that without kavana the maaseh mitzvah isn't a maaseh mitzvah at all. It's basically a din that without kavana to be yotzei you have the status of a misasek. If so, we can understand why we would distinguish between different types of mitzvos. If the din of mitzvos tzrichos kavana affects the actual maaseh mitzvah, so different types of maasim may be affected differently.

This is a classic example of the brilliance employed by Brisker analysis. Think about what most people would say if they were asked to explain why mitzvos tzrichos kavana by mitzvos d'amirah and not other mitzvos. Probably they would resort to trying to explain the difference between mitzvos that are said and mitzvos that are done. They would probably offer some kind of psychological pshat about how amirah is more related to kavana than maaseh or something like that. Of course this is a futile exercise - we already know that distinction! The question really is why should that make a difference? Either mitzvos need kavana or not. When pressed on this issue they would probably offer some type of dochek sevara. Rav Soloveitchik here goes in a different direction. He assumes that there is an inherent distinction between mitzvos d'amirah and other mitzvos. How to word that distinction isn't really relevant. Rather, the issue to him is why should any type of distinction between mitzvos make a difference in the kavana requirement? From this he deduces that the necessity for kavana is tied to the maaseh mitzvah itself, and not simply an additional requirement. A very good lesson in lomdus.

What Defines a Beracha? Part 2

In the previous post we discussed the issue of Kavana in a beracha. We brought the gemara in Berachos 12b where a person makes a correct beracha in the end but at the beginning of the beracha he had the wrong beracha in mind. Does that improper kavana ruin the beracha? The gemara ends with no conclusion.

We brought a question from a Rambam (Tefillah 10:6) that paskens that in davening if in the middle of shemoneh esrai you suddenly realized that you already davened you should stop davening. The idea is that the tefillah in the beginning is tefillas chovah. You can't then continue b'toras nedava because a tefillas chovah and tefillas nedavah are two different cheftzas of tefillah.

A commenter correctly pointed out that this stirah might not really be a stirah in the Rambam at all because there are different ways to learn that gemara. I think the commenter is absolutely right that if we are going to do this the right way we have to look at each rishon separately and not try to string together all the shitos. So let's take a look at the two Rambams:

Rambam Berachos 8:11-

יא לָקַח כּוֹס שֶׁלְּשֵׁכָר בְּיָדוֹ, וְהִתְחִיל הַבְּרָכָה עַל מְנָת לוֹמַר שֶׁהַכֹּל, וְטָעָה וְאָמַר בּוֹרֵא פְּרִי הַגֶּפֶן--אֵין מַחְזִירִין אוֹתוֹ

The Rambam seems to be saying that if a guy meant to say shehakol and accidentally said hagafin it's fine. Thus, the Rambam here seems to be saying that we follow kavana over what the person actually said.

Rambam Tefillah 10:6-

מִי שֶׁהָיָה עוֹמֵד בַּתְּפִלָּה, וְנִזְכַּר שֶׁכְּבָר הִתְפַּלַּל--פּוֹסֵק וְאַפִלּוּ בְּאֶמְצַע הַבְּרָכָה; וְאִם הָיְתָה תְּפִלַּת עַרְבִּית--אֵינוּ פּוֹסֵק, שֶׁלֹּא הִתְפַּלַּל אוֹתָהּ מִתְּחִלָּה אֵלָא עַל דַּעַת שְׁאֵינָהּ חוֹבָה

Here the Rambam is pretty clearly saying that the intention for chovah makes it a tefillas chovah and the tefillah can no longer be mitztaref to tefillas nedavah.

So, in terms of the final psak of the Rambam I really don't see any stirah. It seems that the person's kavana does determine the nature of the beracha.

A final issue to deal with is why should the person's kavana should be important at all? What about the general principal that mitzvos don't need kavana?

This question is addressed by Rabbeinu Yonah. A number of answers are given. First, it could be that by mitzvos of amirah kavana is needed. (Rabbi Schachter brings a Teshuvos Ben HaYemin that this is only by berachos.) Another answer given is that even though mitzvos don't require kavana, but a wrong kavana does mess up the mitzvah.

I was thinking to approach this from a slightly different angle. Sometimes a person does a mitzvah without proper kavana. In such a case the maaseh is a maaseh mitzvah and the only problem is the lack of kavana. However, in halacha there is also a category called misasek. Misasek is generally understood as meaning that you did not even intend to do the maaseh. For example, if I pick up a lulav not intending for the mitzvah - that is eino miskaven. However, if I am trying to pick up something else and then pick up the lulav - that is misasek. There it's not a question of a maaseh without kavana, but rather it may not be a maaseh mitzvah at all.

The way the Rambam explains the case the person actually meant to say shehakol and said hagafen. I would think this is more comparable to misasek than eino miskaven. If so, we can understand why having the kavana to say the wrong beracha could mess everything up. If you actually said something different than you intended it may be as if you said nothing at all. We will address the relationship between misasek and mitzvos tzrichos kavana more in the next post.

A final issue is what about in the Rambam's actual case where you said the wrong beracha and had the right intention. How can this be good? You didn't even say the right thing. Perhaps the commenter was correct when he explained as follows:

this is the shitah of the rambam, who alone among the rishonim holds that one can be yotzeh a bracha through hirhur alone

The commenter is probably referring to Hilchos Berachos 1:7 where the Rambam is in fact mashma that you can be yotzei a beracha without actually saying anything. Here is that Rambam -

ז כָּל הַבְּרָכוֹת כֻּלָּן, צָרִיךְ שֶׁיַּשְׁמִיעַ לְאָזְנוֹ מַה שְׁהוּא אוֹמֵר; וְאִם לֹא הִשְׁמִיעַ לְאָזְנוֹ, יָצָא--בֵּין שֶׁהוֹצִיא בִּשְׂפָתָיו, בֵּין שֶׁבֵּרַךְ בְּלִבּוֹ

Wednesday, March 26, 2008

What Defines a Beracha?

The Gemara in Berachos 12a discusses a case where a guy has beer and starts to make a hagafen because he thinks it is wine. Then, mid-beracha he realizes it's beer and finishes the beracha properly with a shehakol. So, essentially he recites the right beracha but for the entire beginning for the beracha he intended on saying the wrong one. So do we follow what he said and say it is a good beracha? Or, do we follow the intent and say it is a bad beracha? The gemara ends in a safek.

There is a question on this gemara from a Rambam (Tefillah 10:6). The Rambam there paskens that if someone davens mincha and remembers that he actually already davened he should stop right there in the middle of shemoneh esrai, even right in the middle of the beracha. The question is why can't the guy just continue shemoneh esrai and switch his intent from davening mincha to davening a tefillas nedavah? Apparently, the reason is that tefillas chovah and tefillas nedava are two separate cheftzas of shemoneh esrai that are not mitstaref. And, apparently, the mere intent of davening a chovah makes it a chovah.

The question then is, why does the Rambam pasken that we clearly follow intent, when in the gemara it seemed to be a standing question.

Rabbi Schachter in Eretz HaTzvi Siman 1 addresses this question. He distinguishes betweent the two cases with the following rather simple distinction. In the case of the beer what was recited was unambiguous. It was clearly a shehakol. Thus, the intent cannot undo what was actually recited. However, in the case of shemoneh esrai, both tefillas chovah and tefillas nedavah are exactly identical in recitation. The only difference between them is the intent. In that case we certainly follow the intent to determine what kind of shemoneh esrai it is.

Rabbi Schachter then applies this distinction to a number of different rulings that he finds in the poskim. Here is a list of those rulings:

1. Rashba Berachos 26b - The Rashba paskens that if you missed a tefillah and recited the tashlumin before the main shemoneh esrai of the next tefillah so the fact that you intended the tashlumin to go first means that you actually did it out of order and the tefillah is no good (because the tashlumin should always go second). [Note: I am actually oversimplifying the case of the Rashba because he is actually dealing with a complex case of making up Shabbos Minchah at Motzei Shabbos Maariv, but for our purposes these details are not necessary.]

2. Pri Megadim O.C. 209 - The Pri Megadim deals with a strange case where a guy said two endings to one berachah. For example he ended with both zokef kefufuim and matir assurim. The psak is that we follow the intent because the wording is not clearly one way.

3. Magen Avraham O.C. 268:3 - In the third case Rabbi Schachter deals with a string of complicated cases on Shabbos where you started Atah Chonen instead of the Shabbos davening. The psak by Shacharis is different than by Mincha and Maariv because by Mincha and Maariv the nusach also begins with atah, so the nusach wasn't clearly for weekday, whereas by Shacharis there was not only a wrong intent but an actual nusach change.

To Summarize: We are trying to explain how come sometimes intent clearly plays a role in defining the nature of the beracha, whereas othertimes we find that it is a safek if the intent plays a role. The distinction being suggested is that if there are no other factors intent can be the determining factor. However, if there are actual nusach distinctions, the nusach factor may override the factor of intent.

Monday, March 24, 2008

Hasagas Gvul - Yored L'soch Umnaso Shel Chaveiro

Many of the halachos of hasagas gvul are discussed in the gemara in Baba Basra 21b. From certain sources it seems that competition is permitted according to halacha. In other sources, however, there seems to be some restrictions. The poskim discuss exactly where to draw the line between what is mutar and what is assur.

The Chavos Yair (Teshuvos Siman 42) in discussing the issue of hasagas gvul writes as follows:

It is permitted to enter [to compete] the trade of your friend except if you are a member of another town [and hence do not pay taxes to the local authorities] ... so is the custom all over Israel.

In other words, according to the Chavos Yair, one is allowed to compete freely in business and it is not considered as part of the issur of yored l'soch umnaso shel chaveiro at all.

The Chasam Sofer in Choshen Mishpat Teshuva 61 brings this opinion of the Chavos Yair and argues with it. He writes as follows:

Certainly a member of the town [may compete] against another member of the town - even l'chatchila it is mutar and this is not at all called yored l'soch umnaso shel chaveiro... because he can do in his own [property] and he can do in his own [property] and therefore it is not called yored l'soch umnaso shel chaveiro... however in a case like ours where through his entering the profession he pushes aside [the competition] completely that it is impossible for both of them to gather [enough customers], and it turns out that he is pushing aside [the competition] completely this is yored l'soch umnaso shel chaveiro mamash etc.

Thus, the Chasam Sofer is ruling that it depends. If through your opening of a business you will destroy the other person's business, then, in fact, you are "descending" into the other person's livelihood and it is prohibited. However, if there is room for both businesses to exist, there is nothing wrong with competition.

Rav Moshe Feinstein in Iggros Moshe Choshen Mishpat 1:38 quotes this psak of the Chasam Sofer when dealing with the issue of a "breakaway minyan". Rav Moshe in the teshuva is discussing a shul where a number of the congregants no longer like the Rabbi. This particular Rabbi had actually bought the shul property about three years prior and now feared that the breakaway minyan would cause him a great loss of money, as his shul membership would now significantly decrease.

Rav Moshe rules, based on the above Chasam Sofer, that the congregants are not allowed to break away from the shul as they will be cutting off the livelihood of the Rabbi. It is exactly a situation like the Chasam Sofer's where the area cannot sustain two shuls and, therefore, opening a competing minyan would not be allowed. Rav Moshe argues further that in this case the second minyan is not even a business venture in any sense. Thus, the second minyan is essentially destroying the first Rabbi's parnassah not even for the purpose of creating a parnassah of it's own, and thus prohibited all the more so.

In another teshuva in Choshen Mishpat (2:40), Rav Moshe similarly rules that if a certain vaad of Rabbanim are already giving a hashgacha somewhere, another vaad cannot come in and try to take over the hechsher. Again, this is a situation of yored l'soch umnaso shel chaveiro and therefore prohibited.

Along the same lines, Rabbi Yitzchak HaKohen Kook discusses a situation where a community was trying to pressure a Rabbi to resign his position. He writes as follows (Techumin Vol. 5 Page 285, 286):

...On the basic issue...had I not seen these words uttered...I would not have believed ... it has not been seen nor heard in the Jewish community even in relation to a minor position, and certainly not as it relates to the crown jewel of the rabbinate in a great and holy congregation in Israel. It is, of course, a widely held halacha that all publicly-appointed officers, and certainly in matters of sanctity, carry within themselves the aspect of inheritance even after the life of the office holder...and how can we allow such travesty to diminish, G-d forbid, the position of a great Rav in Israel who leads his community in the path of Torah and mitzvot for remove him from his post through pressure. It is certain that all things that are being done to pressure you to agree and submit to this awful step have absolutely no validity and are considered like naught ... And even if you receive some favor or compensation for giving up your rights it is meaningless... For it is well known that the pain of a person to see his honor and dignity taken away and given to others... is a terrible thing to behold... And the pain certainly is great when one's dignity is taken away without any cause... And I am certain that the rabbi [who is trying to usurp] will withdraw.

And Rav Moshe too writes in Choshen Mishpat (2:34):

It is quite simple and certain that whoever was elected as rabbi in any synagogue... cannot ever be removed from his position ...even if the contract stipulates a specific time period.

*For more on this topic see the article on Hasagas Gvul by Rabbi Simcha Krauss in the Journal of Halacha and Contemporary Society Volume 29. And, of course, for final rulings seek the wisdom of your local trusted halachic expert.

Saturday, March 22, 2008

Kol Yisrael Arevim - Im Yatza Motzee

The Gemara in Berachos 20b discusses whether women are chayav in Birchas HaMazon on a d'orayssa level or only midrabbanan. The gemara says it makes a difference in terms of whether a woman can be motzee a man in bentching. If the chiyuv of a woman is only midrabbanan her chiyuv is then a lower level of chiyuv than a man, who is chayav midorayssa. Thus, the woman would not be able to be motzee the man in the berachah. If, on the other hand, her chiyuv is mid'orayssa, then she could be motzee the man.

The Rosh there asks the following question. We know that by birchas hamitzvos there is a general rule of im yatza motzee. This means that if someone already was yotzei a mitzvah, he can still be motzee his friend in the same mitzvah. So, even if someone was already yotzei the mitzvah of kiddush, for example, he can still recite kiddush for his friend who wasn't yet yotzei. This rule is based on the inyan of arvus. Kol Yisrael Arevim tells us that every Jew is a guarantor for his friend. Thus, if a Jew hasn't yet fulfilled his mitzvah, it is as if all Jews haven't fulfilled their mitzvah, and they can be motzee this Jew. Based on this the Rosh asks, even if a woman were only chayav in bentching midrabbanan, couldn't we just apply the rule of arvus and say that since the man is chayav it is as if the woman is chayav and she therefore could be motzee him? In other words, why can't the woman use the concept of arvus to allow her to be motzee the man. The Rosh answers that the concept of arvus doesn't apply to women. What exactly does the Rosh mean by this?

This issue is raised in the notes of R' Akiva Eiger in Siman 271 of Orach Chaim. The Shulchan Aruch there brings the halacha that women are chayav in kiddush the same way that men are. Even though kiddush is a mitzvah aseh shehazman gerama we employ the rule of kol sheyeshno bishmirah yeshno bizchirah to be mechayev them. The Taz there says that this would mean that a woman can even be motzee a man in kiddush because there level of chiyuv is the same (as per the gemara in Berachos 20b).

R' Akiva Eiger there brings a safek from the Dagul Mervavah. The halacha is that one can be yotzee kiddush in the shemoneh esrai of Maariv. So, if a man comes home from shul and his wife hasn't davened yet, how can he be motzee her in kiddush? Since he has already davened his chiyuv in kiddush is only midrabbanan (because the chiyuv to say kiddush al hakos is only midrabbanan if you've already been yotzei the "kiddush" aspect). The woman, who has not yet davened, is chayav on a d'orayssa level. Thus, her obligation is on a higher level than her husband's. If so, the only way that the man can be motzee his wife is through arvus. Yet, the Rosh said that there is no arvus for woman. The Dagul Mervavah therefore is unsure what the Rosh means. If the Rosh means that there is no arvus for women at all, so the man should not be able to say kiddush for his wife.

R' Akiva Eiger then writes that, in his opinion, the Dagul Mervavah is misunderstanding the intent of the Rosh. In reality there is no difference at all between men and women when it comes to arvus. The rule of Kol Yisrael Arevim applies equally to both men and women. Rather, what the Rosh meant, was that if women are not chayav in bentching m'dorayssa, so for that mitzvah there is not arvus for women. Meaning, that arvus only applies to mitzvos which the person at least has a theoretical obligation to perform. If someone was never chayav in the mitzvah, there can be no arvus for that person in that mitzvah. Therefore, R' Akiva Eiger distinguishes between bentching and kiddush. By bentching, if the chiyuv for women is only midrabbanan, so there is no arvus for women. However, by kiddush, where women are as obligated as men, so there is also arvus for women. Thus, even though the man has already discharged his obligation for kiddush, he can still come home and be motzee his wife because of the rule of Kol Yisrael Arevim.

Wednesday, March 19, 2008

Women Reading Megillah For Men

There are at least six potential problems that could arise from women reading the megillah to be motzee men:

1. Kol B'Isha Ervah - This is a problem according to the opinion of the Kol Bo (45). It would seem that not everyone agrees this is the case. One proof against the Kol Bo could be from the gemara in Megillah 23a where women are only prohibited from being called up to read the torah due to kavod hatzibbur. Otherwise it seems to be permitted.

2. Kavod Hatzibbur - The Mishna Berurah 689:7 says that just like women do not read from the torah to the congregation because of kavod hatzibbur they also should not read from the megillah.

3. The obligation for women is only to hear the megillah, whereas the obligation for men is to actually read the megillah. Thus, the obligation for women is on a lesser level than for men and the general rule is that a lesser obligated person cannot be motzee a person obligated at a greater level. This position is taken by Tosafos in Megillah 4a and is the subject of a machlokes rishonim.

4. Some acharonim say that the obligation for men is in the category of divrei kabbalah, whereas women are only obligated m'drabbanan. Divrei kabbalah would be a higher level of rabbinic obligation, and thus women could not be motzee men. This is the opinion of the Turei Even and the Ohr Sameach (Megillah 4a).

5. The Avnei Nezer in O.C. 511 says that the reading of the Megillah also fulfills the obligation of zechiras mechiyas amalek which women are not obligated in (because they don't need to wipe out amalek). Thus, once again, since they are not obligated they cannot be motzee one who is.

6. The Gra in Y.D. 178:7 holds that which Jews would not have done on their own, but are only doing to imitate the gentiles is a problem of b'chukosehem lo selechu. Thus, some have argued that here too, if the woman is reading for the man in order to imitate the ways of the goyim this could be a problem.

*For more on this subject see Rabbi Alfred Cohen's article on this subject in the Journal of Halacha and Contemporary Society Volume 30. And, once again, for final rulings call your local halachic expert.

Thursday, March 13, 2008

Mitzvas Yishuv Eretz Yisrael

The Ramban (Shikchas H'Asin L'Daas HaRamban in Sefer HaMitzvos of the Rambam) writes:

The fourth mitzvah [that the Rambam forgot to count] is that we are commanded to inherit the land that Hashem Yisbarach V'Yisaleh gave to our fathers Avraham, Yitzchak, and Yaakov and not to let it remain in the hands of others of the nations of the world or to destruction etc.

The question then is, why did the Rambam not count the mitzvah of yishuv eretz yisrael in minyan hamitzvos?

The Megillas Esther there answers the question as follows:

And it seems to me that the Rav didn't count it because the mitzvah of inheriting the land and settling it only applied in the days of Moshe, Yehoshua, and Dovid and all of the time that they weren't exiled from the land. But after the exile from their land the mitzvah does not apply for all generations until the time that Moshiach comes. For, on the contrary, we are commanded according to what it says in Kesuvos (111a) not to rebel against the nations of the world to go and conquer the land with force. And they prove this from the pasuk, "I made you swear the daughters of Jerusalem etc." and they darshened it that klal yisrael shouldn't ascend the wall.

The Avnei Nezer in Yoreh Deah Siman 454 brings this opinion of the Megillas Esther. He writes as follows:

And it is clear that the author of the Megillas Esther did not see the Sifri inside, only that which the Ramban quoted. Because the Sifri in Parshas Re'eh brings this episode and there it states clearly in the following language, "and they returned and came to their place and they said that settling Eretz Yisrael is equal to all the mitzvos"... thus the mitzvah is b'zman hazeh... and behold it was also hidden from the author of the Megillas Esther the words of the Rambam in Hilchos Avadim that even nowadays the servant can force his master to go up [to Eretz Yisrael]. And the essence of his words that the reason the Rambam doesn't count yeshivas Eretz Yisrael is because it isn't noheg bizman hazeh and is not a mitzvah l'doros is nothing. For if so, why does he count terumos and maasros and challah which don't apply nowadays? And even in the times of Ezra they were not in effect min hatorah according to the Rambam. And it is obvious that any mitzvah that is noheg in the days of moshiach is considered l'doros...

But the proper answer is... as far as yeshivas eretz yisrael that the mitzvah of hacharem tacharimem is in order that we should settle the land... therefore he did not count hacharem tacharimem and yeshivas eretz yisrael as two, and he counted only the mitzvah of hacharem tacharimem.

So, according to the Avnei Nezer the Rambam does, in fact, count yishuv eretz yisrael as a mitzvah included within the mitzvah of hacharem tacharimem.

Rav Ovadiah Yosef in Yechaveh Daas Vol. 3 Siman 69 also brings the opinion of the Megillas Esther. He disputes the opinion of the Megillas Esther based on the same Rambam in Hilchos Avadim that the Avnei Nezer quoted (Avadim 8: 8,9). He also brings another Rambam in Ishus 13:20 to prove the point:

כ] אמר האיש לעלות לארץ ישראל, והיא אינה רוצה--תצא שלא בכתובה; אמרה היא לעלות, והוא אינו רוצה--יוציא וייתן כתובה; והוא הדין לכל מקום מארץ ישראל, עם ירושלים: שהכול מעלין לארץ ישראל, ואין הכול מוציאין משם; והכול מעלין לירושלים, ואין הכול מוציאין משם

He then writes as follows:

The Acharonim have already discussed the words of the Megillas Esther mentioned above and they pushed his words aside with two hands. See the words of our master the Chida in Sefer Yair Ozen (Maareches 10:5), and the words of the gaon Rabbi Chaim Plagi in Shu"t Nishmas Kol Chai (YD 48). Also see Shu"t Neveh Shalom (siman 7) and Shu"t Avnei Nezer (YD 454) and Shu"t Chavalim B'niimim (2:132, 5:48) and Shu"t Dvar Yehoshua (2:71) and others.

The point of the Megillas Esther from the gemara in Kesuvos 111a, however, still remains. What do we do with the three oaths? Many Rabbanim in Europe understood this gemara to mean that it was, in fact, forbidden to resettle Eretz Yisrael until the times of Mashiach. (This opinion could be consistent with the understanding that the mitzvah of Yishuv Eretz Yisrael is "l'doros". As the Avnei Nezer stated, even mitzvos that are only going to be practiced in the times of mashiach can be counted in minyan hamitzvos.)

However, others disputed this conclusion based on a number of arguments. First, this gemara is not brought by the Rambam or the Shulchan Aruch. This would indicate that it is not halacha, but rather aggadata.

Further, Rav Hershel Schachter (see Journal of Halacha and Contemporary Society volume 8 on Yishuv Eretz Yisrael) cites several acharonim who had different interpretations of the gemara. For example he cites the Maharal's pshat as follows:

Maharal explains that G-d never actually administered an oath to the Jewish people; He merely told us that a return to Zion would be impractical because by the laws of nature such a return would not work out. Any attempt at return, then, is not forbidden, but discouraged as futile. Should an attempt succeed, it clearly has triumphed over nature and is not in defiance of G-d's will.

He also brings two additional arguments. First, some explain that the issur in the gemara in Kesuvos is only to take the land by force. However, the state of Israel was created with the allowance of the nations of the world (i.e. due to the Balfour Declaration etc.). Second, some point out that one of the oaths was administered to the nations of the world "not to be overzealous in persecuting the exiled Jews". Once the nations failed to uphold their end of the oath, we are no longer bound by ours.

Wednesday, March 12, 2008

Hadlakah/Hanacha Oseh Mitzveh

The gemara in Shabbos 23a discusses whether the lighting of ner chanukah is the mitzvah (hadlakah oseh mitzvah) or the placing of the neiros is the mitzvah (hanacha oseh mitzvah).

The gemara there comes out with an interesting distinction within the possibility that hanacha oseh mitzvah. If a cheresh, shoteh, v'katan were to light the menorah, then one could place the menorah down (hanacha) and fulfill the mitzvah. However, if the menorah has been lit all day one would have to extinguish, relight, and then place down the menorah to fulfill the mitzvah. Tosafos ask, why the distinction? Why in the second case must one relight the menorah if the mitzvah is really fulfilled by placement?

Tosafos answers that by an already lit menorah it was not clearly lit for Chanukah, whereas by a menorah lit by a cheresh, shoteh, v'katan it was clearly lit for Chanukah.

The question remains, what do Tosafos mean? If hanacha oseh mitzvah, what difference does the hadlakah make at all?

Perhaps Tosafos mean to say that even if one holds hanacha oseh mitzvah, the placement must be a placement of "ner chanukah" as opposed to a placement of "stam neiros". Although the cheresh, shoteh, v'katan cannot fulfill the mitzvah of ner chanukah, than can at least perform a hadlakah as a hechsher for the mitzvah. This lighting allows the lit candles to have a challos shem of "ner chanukah". According to the shitah that hanacha oseh mitzvah, one must only place these ner chanukah down properly to fulfill the mitzvah. By neiros that were already lit (not for chanukah), the neiros are considered stam neiros and their proper placement would not constitute a mitzvah.

Sunday, March 2, 2008

Shaos Zmaniyos... or not?

In this previous post I discussed the issue of Shaos Zmaniyos. This concept is usually taken for granted... but should it be??

Here is an excerpt from an interesting post (linked above) that I found from RYGB:

We are accustomed to assuming that hours of the day, for purposes of Halacha are relative hours (sha'os zemanios) — viz., the day is divided into twelve equal parts, from dawn to dusk according to the Magen Avraham, and from sunrise to sunset according to the Gra and Baal HaTanya. Hence, a sha'ah zemanis in Chicago today, according to the Gra is 0:46:55 hours.
It ain't necessarily so.
In the first place, the Pnei Yehoshua in the Kunteres Acharon to Berachos goes so far as to say that sha'os zemanios were an invention of the Rambam!

Secondly, the Meshech Chochmah (Bamidbar 25:23) derives that the Halachic hours of the day are standard, 60 minute hours (sha'os shavos) from our Gemara etc.