Talking in Learning

Eidus Sh'ee Atta Yachol L'Haazimah

2010-11-14T09:41:00.000-08:00

The first case of the mishnah in Makkos 2a involves two witnesses testifying that a particular kohen is a ben-gerushah v’chalutzah. The mishnah states that if the witnesses are proven to be eidim zommemin they do not receive the traditional punishment of kaasher zamam (in this case to become challalim); they receive malkos instead. Tosafos (d”h Meidin) ask on the mishnah from the concept known as eidus she’ee atta yachol l’hazimah. The halacha is that for eidus to be accepted it must be “yachol l’hazimah” - it must be possible to both falsify the witnesses through imanu hayissem as well as to punish them with kaasher zamam. Tosafos therefore ask that if it is true that eidim zommemin in the case of ben-gerushah v’chalutza don’t receive the punishment of kaasher zamam, why then is their testimony acceptable at all? Why isn’t it considered eidus she’ee atta yachol l’hazimah?

Tosafos offer two opposing answers to this question. First, Tosafos suggest that the malkos the eidim zommemin receive in the case of ben-gerushah v’chalutzah is in fact halachically considered kaasher zamam. Accordingly, testimony on a ben-gerushah v’chalutzah is yachol l’hazimah and therefore acceptable in court. Tosafos second answer takes the opposite approach. In reality, when it comes to creating a ben-gerushah v’chalutzah, there is no need at all for the eidus to be yachol l’hazimah. This is so because the entire source for the din of yachol l’hazimah is actually the pasuk of kaasher zamam. Since the gemara excludes eidim zommemin of ben-gerushah v’chalutzah from the punishment of kaasher zamam, they are excluded from the din of yachol l’hazimah as well.

It emerges from the second answer of Tosafos that the requirement for eidus sheyachol l’hazimah doesn’t apply to eidus on a ben-gerushah v’chalutzah at all. This position presents us with an interesting question. We know that the requirement of yachol l’hazimah in eidus actually expresses itself in two ways. First, there is the requirement that Tosafos highlight – that the eidim must be able to theoretically receive the punishment of kaasher zamam for their eidus to be accepted. This requirement is mentioned explicitly in several sugyas in shas.[1]

The requirement of yachol l’hazimah, however, expresses itself in a second way as well. The gemara in Sanhedrin (41b) discusses the requirement upon Beis Din of derishah v’chakirah (to investigate and question the eidim) and mentions two kinds of questioning – chakiros and bedikos. The gemara explains that chakiros are fundamentally different than bedikos in that chakiros are questions of where and when the eidus took place; bedikos, on the other hand, are questions of what exactly took place. When it comes to chakiros, the gemara says that the eidim must answer for their eidus to be accepted. Why? Because if the time and place haven’t been specified the eidus will not be yachol l’hazimah in the sense that other eidim won’t be able to say imanu hayissem. When it comes to bedikos, on the other hand, this isn’t true. Although it is a mitzvah upon Beis Din to conduct bedikos, the eidus is still acceptable even if the eidim don’t answer the questions. Since the information being sought from the bedikos isn’t needed for imanu hayissem, that information is not required.

Based on this, we can now ask on the second answer of Tosafos. If it’s true that eidus on a ben-gerushah v’chalutzah doesn’t need to be yachol l’hazimah, does that mean that the eidim don’t need to answer the chakirah’s? Is testimony on a ben-gerushah v’chalutzah acceptable even if the eidim don’t specify time and place?

The opinion of the Noda B’Yehudah is yes –testimony by a ben gerushah v’chalutzah is acceptable even if time and place aren’t specified according to the second answer of Tosafos.[2] He explains that the requirement upon Beis Din to ask chakiros and the requirement upon the eidim to answer them are completely separate. The requirement upon Beis Din to ask is from the pasuk of v’darashtah v’chakartah and applies to all testimonies – even testimony on a ben gerushah v’chalutzah. The requirement upon the eidim to answer, however, comes from the requirement of eidus sheyachol l’hazimah that is learnt from kaasher zamam. Since this requirement is waived by eidus on a ben gerushah v’chalutzah according to the second answer of Tosafos, the requirement to answer the chakiros is also waived. The Noda B’Yehudah goes further and extends this chiddush to other cases where there is no kaasher zamam, as well.

The Beis HaLevi[3]takes issue with the position of the Noda B’Yehudah. Most significantly, he notes how novel this position is, as it is never mentioned anywhere in shas that there are cases where chakiros - on a level of d’orayssa - need not be answered. More fundamentally, the Beis HaLevi offers a different understanding of the chakiros in general. He explains that in reality the din of yachol l’hazimah is not separate from the requirement upon Beis Din to ask derishos v’chakiros contained in v’darashtah v’chakartah. Rather, the gezairas hakasuv of kaasher zamam (i.e. eidus she’yachol l’hazimah) is that the chakiros that Beis Din asks are a part of the etzem ha’eidus itself. Unlike bedikos, chakiros are required not only from Beis Din’s perspective, but from the perspective of the eidim as well.

The Beis Halevi provides logical proof to his position. He argues that if eidus merely needed yachol l’hazimah as a separate din (and not because it was part of the etzem haeidus) that wouldn’t require such specificity regarding the time of the eidus. After all, let the mazimin come in and say imanu hayissem for the past 50 years. Why the need to specify the exact day, and even time of day? The Beis HaLevi therefore explains that in reality Beis Din ask specifics because of v’darashtah v’chakartah. The din of kaasher zamam then tells us that the specifics of where and when (as opposed to the specifics of what) are part of the etzem ha’eidus and therefore both punished by kaasher zamam and absolutely required.[4] According to the Beis HaLevi, it emerges that eidim need to answer chakiros not as a separate requirement, but rather because it’s not considered eidus at all without certain details.

Based on this, the Beis HaLevi explains that even if the requirement for the eidim to receive the kaasher zamam punishment is waived by eidus on ben-gerushah v’chalutzah, the requirement for them to state the when and where of their eidus is certainly not waived. This is so because that second requirement is mandated not by the mere gezairas hakasuv of kaasher zamam, but rather by the fundamental definition of eidus itself. In Chiddushei R’ Chaim HaLevi Eidus 3:4, R’ Chaim seems to accept the position of his father, the Beis HaLevi. He writes that within the din of derishah v’chakirah there is contained two chiddushim. First, there is the requirement that the eidim be questioned. Second, there is a chiddush that the chakiros themselves are a part of the gufah shel eidus.

[1] See Sanhedrin 41a regarding a naarah meorassah, Sanhedrin 78a regarding a teraifah, and Babba Kamma 75b regarding modeh b’knas.

[2] See Nodah BiYehudah Mahadurah Kamma 57.

[3] 3:6.

[4] See the Beis HaLevi inside for various formulations on how kaasher zamam works together with v’darashtah v’chakartah.

Malkos D'Orayssa on Ben Chalutzah Midrabbanan

2010-11-11T12:53:00.000-08:00

The first Mishnah in Makkos states that if witnesses testify that someone is a ben-chalutzah they do not get the punishment of kaasher zamam if they are found to be zommemin; rather they are punished with malkos. The Ramban and the Ritvah both comment on this that this is not really true, and that ben-chalutzah was thrown in the mishnah merely because it is often grouped with gerushah. In reality, ben chalutzah is only midrabbanan and therefore there can be no malkos mid’orayssa for ben chalutzah testimony that is only d’rabbanan.[1]

The Rambam in Hilchos Eidus 20:8, however, clearly includes ben chalutzah in getting malkos implying that it is no different than ben gerushah. The question is how can eidim get malkos mid’orayssa for eidus that only exists on a d’rabbanan level according to the Rambam?

R’ Akiva Eiger explains the Rambam simply that even though ben chalutzah is only mid’rabbanan, still the testimony is false and is a transgression of lo’ saaneh on a d’orayssa level; and it is this transgression of lo’ saaneh that is michayev malkos.[2] The question then becomes what precisely is the nekudas hamachlokes between the Rambam and the Ramban/Ritvah?

One approach we can take to answer this question would be to suggest that it is only the Rambam that holds that malkos in a case of ben chalutzah is directly related to lo’ saaneh. The Ramban and Ritvah, however, hold that malkos only results if there is also a chalos din of “harshaas hatzadik” (from the pasuk of v’hitzdiku brought in Makkos 2b). In the case of ben chalutzah the shem rasha the witnesses are trying to create is only d’rabbanan and therefore cannot result in malkos mid’orayssa.[3]

A variant of this answer would be to suggest that everyone agrees that we need harshaas hatzadik to be mechayev malkos. The argument between the two sides would stem instead from different views of issurei d’rabban. There is a well known chakirah from R’ Shimon Shkop as to whether issurei d’rabbanan are “chal in the cheftza” or not. According to the view that they are, if a piece of food is assur mid’rabbanan we say that the food itself is a cheftza shel issur – the same as we do by food that is assur mid’orayssa. The opposing view holds that there is a distinction between issurei d’rabbanan and issurei d’orayssa. By issurei d’rabbanan the food itself is not issur. Rather, the din merely is that the person must conduct himself as if the food is assur. In short, it is a din in the gavra, not the cheftza. Along these lines we can suggest that the Ramban and Ritvah hold that the din of ben chalutzah is just a din relevant to how the kohen must conduct himself, but there is no challos shem challal in the kohen himself. Therefore, it is not harshaas hatzadik and there is no malkos. The Rambam, on the other hand, would hold that there is harshaas hatzadik because issurei d’rabbanan are chal in the cheftza and the eidim zommemin would in turn get malkos.[4]

Although to two above approaches are valid, there is a third approach that uses a more direct and universal principle. In Shoresh Rishon of Minyan Hamitzvos we find that the Ramban takes issue with the Rambam’s approach to dinei d’rabbanan in general.[5] From several places in the Rambam it seems that within every din d’rabbanan there is some element of the d’orayssa lav of lo’ sassur contained within. The Ramban asks numerous questions on the Rambam all along the same lines. Basically, the Ramban argues that dinei d’rabbanan can only be mid’rabbanan, and they cannot possibly contain d’orayssa elements. Any sugyos that bring in lo’ sassur, says the Ramban, are more along the lines of asmachta.

The explanation of the Rambam would seem to be as follows. Of course it is true that dinei d’rabbanan are not d’orayssa in the technical sense. There is no malkos mid’orayssa, no safek l’chumra etc. However, the torah does recognize the existence of dinei d’rabbanan. R’ Soloveitchik phrased it that a din d’rabbanan is considered a cheftza shel torah mid’orayssa. One example he used to illustrate this was a case of someone who learned Meseches Megillah - a mesechta involving only d’rabbanan dinim - all day. Would anyone in their right mind suggest that this individual hasn’t fulfilled the mitzah of limud hatorah on a d’orayssa level? Would you not make Birchas HaTorah on this learning? The answer is of course that learning dinim mid’rabbanan is limud hatorah because dinei d’rabbanan are cheftzai torah mid’oraysa. The torah essentially recognizes these dinim as existing.

The Rambam holds that the idea that all dinei d’rabbanan are cheftzei torah mid’orayssa is learned from the pasuk of lo’ sassur. The pasuk doesn’t give dinei d’rabbanan a d’orayssa status, as the Ramban implies the Rambam holds, but it does at least confer recognition upon the existence of these dinim. The Ramban and the Ritvah on the other hand disagree. They hold that although the Rabbis have authority from the torah to create dinim, the torah doesn’t then go ahead and “recognize” particular dinei d’rabbanan on a d’orayssa level. Therefore, if eidim come and testify on a ben chalutzah, they haven’t testified at all on a d’orayssa level because that category of halacha doesn’t exist on the d’orayssa plane. The Rambam argues that the d’orayssa level does recognize categories of halacha created by the rabbanan.

This same machlokes is found in another area of halacha as well. In Avodah Zarah 22a, Tosafos b’shem Rabbeinu Tam (d”h teipuk) state that even though the issur of melacha on chol hamoed is d’rabbanan, still if one Jew causes another Jew to transgress this issur he transgresses lifnei iveir on a d’orayssa level. The Ramban and the Ritva[6] there argue and ask how can this be? If the issur is only d’rabbanan surely the lifnei iver cannot be d’orayssa?[7] Therefore, the Ramban states his position that the issur melacha on chol hamoed is d’orayssa. The Rambam (Hilchos Yom Tov 7:1) disagrees with the Ramban and paskens that the issur melacha on chol hamoed is d’rabbanan. It would seem that the machlokes revolves around the same issue. The Rambam recognizes that the issur d’rabbanan exists as an issur even on a d’orayssa level and there can therefore be lifnei iveir. The Ramban, on the other hand, disagrees.

[1] See Rashi (Makkos 13a d”h gerusha v’chalutza) who seems to say that the din ben chalutzah is d’orayssa. Tosafos there argue based on an explicit gemara. The Rambam Issurei Biah 17:7 states clearly that ben chalutza is d’rabbanan so Rashi’s opinion cannot be used to explain the Rambam.

[2] See notes of R’ Akiva Eiger on side of Frankel Rambam.

[3] See Birchas Avraham Makkos 2a quoting Hagahos HaMeiri.

[4] See Birchas Avraham Makkos 2a.

[5] See Shiurei R’ Shmuel Makkos 2a

[6] See various girsaos in the Ritva.

[7] In terms of lifnei iveir see Minchas Chinuch 232 b’shem Pnei Yehoshua that suggests that causing someone to transgress a d’rabbanan couldn’t possibly be worse than giving any other form of bad non-halachik advice that is also lifnei iveir mid’orayassa, so what exactly is the issue? The Achiezer 3:65:9 explains that lifnei iveir by advice and by halacha are two separate categories. By halacha one transgresses even if the “blind” person knows he is doing something wrong. The enabling of the transgression itself is lifnei iveir even if there is no trickery involved. This, however, is not the case by bad advice.

Lifnei Iveir - Bad Advice or Causing an Aveirah 2

2010-04-25T15:44:00.000-07:00

In this post we discussed the issue of how could one transgress lifnei iveir on a d'orayssah level if he only advises someone to do an issur d'rabbanan. We suggested that perhaps the issur of lifnei iveir encompasses two aspects; first, giving bad advice and second, leading someone to do an aveirah. According to this approach, even suggesting that one transgress a d'rabbanan is bad advice and an issur of lifnei iveir mid'orayssah. The Achiezer (3:65:9) makes this distinction and adds that the two categories of lifnei iveir are in fact very different. When one gives bad advice it is only lifnei iveir if the one being advised is not aware the advice is bad. This is not so when one enables someone else to do an aveirah. In such a case, even if the person being enabled is aware of the aveirah, the enabler still transgresses lifnei iveir.

There is another approach to explain the machlokes rishonim by lifnei iveir. The Ramban in Shoresh Rishon of Minyan HaMitzvos takes issue with the fact that the Rambam ties every d'rabbanan to the d'orayssah lav of lo sassur. He argues that d'rabbanans, by defintion, cannot actually contain d'orayssah elements to them, as the Rambam seems to imply. It may well be that the Rambam holds that although d'rabbanans are obviously not d'orayssah, still they are considered cheftzai torah on a d'orayssah level. R' Soloveitchik gave a mashal for this using a case of someone who learned Meseches Megillah (a mesechta with only d'rabbanan dinim) all day. Would anyone suggest this is not talmud torah on a d'orayssa level? Would anyone say not to make Birchas HaTorah on such learning? Obviously, the dinei d'rabbanan are recognized as cheftzai torah, even on the d'orayssah level.

The same idea might apply here. Some Rishonim (see Tosafos Avodah Zarah 22a) understand, like the Rambam, that even if one advises someone to transgress a d'rabbanan, that issur is still "recognized" by the torah, and the enabler transgresses lifnei iveir on a d'orayssa level. The Ramban (See Chidushei Ramban Avodah Zarah 22a) says that the issur d'rabbanan is not recognized at all as issur on the d'orayssa plane, and therefore there is no lifnei iveir on that level.

It is interesting to note that a similar machlokes is found in Makkos 2a. The mishnah talks about kaasher zammam by a case where eidim zommemin say someone is a ben chalutzah. The Ramban asks, isn't ben chalutzah only d'rabbanan? How can it be kaasher zammam mid'orayssah? The Rambam in bringing the case as stated seemingly has no such problem. Again, the issue might be whether the eidus on the d'rabbanan plane is recognized at the Torah level.

Tevillah Bizmana Mitzvah

2008-12-07T14:20:00.000-08:00

Rambam in Shevisas Asor 3:2 -

וְכָל חַיָּבֵי טְבִילוֹת טוֹבְלִין כְּדַרְכָּן, בֵּין בְּתִשְׁעָה בְּאָב בֵּין בְּיוֹם הַכִּפּוּרִים

According to the simple explanation of this halacha the Rambam is paskening here that tevillah bizmana mitzvah. This would mean that someone who needs to go to the mikvah (baal keri, zav, etc.) it is a mitzvah to go at the first opportunity. Thus, if that falls out on Yom Kippur or Tisha B'Av, even though there is usually a prohibition on washing one's body, the mitzvah is docheh the issur and thus the Rambam says one can go to the mikvah.

However, this Rambam stands against another Rambam which seems to hold that tevillah bizmana lav mitzvah:

Yesodai HaTorah 6:6 -

נִזְדַּמְּנָה לוֹ טְבִילָה שֶׁלְּמִצְוָה--כּוֹרֵךְ עָלָיו גֳּמִי, וְטוֹבֵל; וְאִם לֹא מָצָא גֳּמִי, מְסַבֵּב אַחֲרָיו. וְלֹא יְהַדַּק, כְּדֵי שֶׁלֹּא יָחֹץ--שֶׁלֹּא אָמְרוּ לִכְרֹךְ עָלָיו, אֵלָא מִפְּנֵי שֶׁאָסוּר לַעֲמֹד בִּפְנֵי הַשֵּׁם עָרֹם

Here the Rambam seems to hold that if the Shem Hashem is written on one's body he should even push off the tevillah in order to cover it up before he does the tevillah.

The source for both these Rambam's in the gemara in Shabbos 121a. If you look at Tosafos there (d"h Hachi) Tosafos points out a girsa issue. Tosafos prefer the girsa that even if one holds tevillah bizmana is not a mitzvah, still it is ok to be toveil on Yom Kippur or Tisha B'Av for people chayav tevillah. This would seem to be the position of the Rambam as well. Even though tevillah bizmana lav mitzvah, still one can be toveil on Yom Kippur or Tisha B'Av. The question is, why?
(See the Lechem Mishna in Yesodei HaTorah that points to this Tosafos as a possible resolution for the Rambam.)

If you look at the Rambam in Shevisas Asor in more detail it seems the Rambam himself answers the question:

ב מִי שֶׁהָיָה מְלֻכְלָךְ בְּצוֹאָה אוֹ טִיט--רוֹחֵץ מְקוֹם הַטִּנּוֹפוֹת כְּדַרְכּוֹ, וְאֵינוּ חוֹשֵׁשׁ. וּמְדִיחָה אִשָּׁה יָדָהּ אַחַת בַּמַּיִם, וְנוֹתֶנֶת פַּת לִבְנָהּ. וְהַחוֹלֶה רוֹחֵץ כְּדַרְכּוֹ, אַף עַל פִּי שְׁאֵינוּ מְסֻכָּן. וְכָל חַיָּבֵי טְבִילוֹת טוֹבְלִין כְּדַרְכָּן, בֵּין בְּתִשְׁעָה בְּאָב בֵּין בְּיוֹם הַכִּפּוּרִים

The Rambam here bunches the halacha of chayvei tevillos with someone who needs to wash dirt off his skin or one who needs to bathe because he is sick. All of these cases of rechitza are muttar. Why? Apparently it is because only rechitza of taanug, only pleasurable bathing, was part of the issur. The Rambam is saying that rechitza of chayvei tevillos was never included in the issur of rechitza in the first place.

Thus, we have two ways of learning the heter for chayvei tevillos. One way is to assume that the mitzvah of tevillah is docheh the issur rechitza. This assumes tevillah bizmana mitzvah. The other approach, that of the Rambam, assumes that rechitza of chayvei tevillos is a different type of rechitza. This type of rechitza never was assured on Yom Kippur and Tisha B'Av in the first place.

Believing in the Prophets

2008-12-04T16:19:00.000-08:00

Rambam in Yesodei HaTorah Perek 8:
ו נִמְצֵאתָ אוֹמֵר, שֶׁכָּל נָבִיא שֶׁיַּעֲמֹד אַחַר מֹשֶׁה רַבֵּנוּ, אֵין אָנוּ מַאֲמִינִין בּוֹ מִפְּנֵי הָאוֹת לְבַדּוֹ, כְּדֵי שֶׁנֹּאמַר אִם יַעֲשֶׂה אוֹת נִשְׁמַע לוֹ לְכָל מַה שֶׁיֹּאמַר; אֵלָא מִפְּנֵי הַמִּצְוָה שֶׁצִּוָּנוּ מֹשֶׁה בַּתּוֹרָה, וְאָמַר אִם נָתַן אוֹת, "אֵלָיו, תִּשְׁמָעוּן" (דברים יח,טו): כְּמוֹ שֶׁצִּוָּנוּ לַחְתֹּךְ הַדָּבָר עַל פִּי שְׁנֵי עֵדִים, וְאַף עַל פִּי שְׁאֵין אָנוּ יוֹדְעִין אִם אֱמֶת הֵעִידוּ אִם שֶׁקֶר; כָּךְ מִצְוָה לִשְׁמֹעַ מִזֶּה הַנָּבִיא, אִם הָאוֹת אֱמֶת אוֹ בְּכִשּׁוּף וְלָאט

The halacha is that if a person comes along and says he is a navi, we don't believe him immediately. Rather, we must test the person. He has to make a prediction that comes true that establishes the he is in fact a navi. Once a navi establishes that he is a true navi by this method, we believe that he is a navi and we must listen to his words. There are more details to these halachos which can be found in the 7th through 10th chapters of Hilchos Yesodei HaTorah in the Rambam.

The Rambam there establishes that our belief as a nation in Moshe Rabbeinu's nevuah did not come about through the miracles that Moshe performed. For, as the Rambam says, anyone can fool someone with magic. Rather, the nation believed in Moshe Rabbeinu because they actually witnessed Hashem speaking to Moshe on Har Sinai. Miracles alone according to the Rambam cannot establish full emunah.

If so, why do we believe in a navi just because he performs a "miraculous" prediction. Perhaps he is fooling us with magic?

To this the Rambam answers here - yes perhaps it is so. Still, we believe the navi because that is the halacha. Just like the halacha is we believe two eidim even though they may be lying. Nevertheless, this is the standard the halacha established to believing eidim. So too, the standard the halacha has for believing a navi is based on performance of a miracle, despite the fact that he may be fooling us.

For this reason, a navi can never come along and argue with Toras Moshe Rabbeinu. The idea being that the only reason we believe the navi is because Toras Moshe says we must. Otherwise, the miracle alone wouldn't establish independent belief in the navi. So, obviously, if we are only believing the navi because it says to believe him in the torah, so certainly his word cannot overturn the word of the Torah.

[Note: the halacha is different if the navi is only overturning the halacha b'horaas shaah like Eliyahu at Har HaCarmel. See the Rambam inside for details.]

Akeidas Yitzchak - The Rambam's Unique Pshat

2008-12-03T10:33:00.001-08:00

I found a Rambam in Moreh Nevuchim that gives a completely opposite pshat in Akeidas Yitzchak from the pshat you hear in almost every mussar shmooze on the akeidah. Absolutely mind boggling...

The famous question that is asked is, what is the big deal about the akeidah? If God told you to do something directly wouldn't you do it? Wouldn't you do anything for Hashem?

The famous answer that is given is that in fact Avraham wasn't a Navi at the level of Moshe Rabbeinu. Avraham's nevuah was at the level of Aspaklaria She'einah Meirah. He saw the word of Hashem, but not perfectly clearly. Therefore, the greatness of Avraham was that he didn't interpret the prophecy in a way that suited him better. He could have easily interpreted the nevuah in a more convenient fashion. But he didn't. Instead he went with the simple explanation, and proceeded with the akeidah.

If you want to see this pshat inside I found it in the Avi Ezri on Hilchos Yesodei HaTorah 7:6 (last paragraph). But it's not only in the Avi Ezri. I have heard this pshat numerous times. The basic idea being that the lesson of the akeidah is not to ask questions, not to find excuses, but just to follow the simple word of Hashem.

Before we get to the Rambam, there is a glaring difficulty with this pshat. The halacha most certainly is safek nefashos l'hakeil. If Avraham wasn't 100% sure what Hashem was telling him, wouldn't the halacha dictate to be on the safe side and not kill his son?

Here now is the quote from Moreh Nevuchim (3:24):

The second purpose [of the akeidah] is to show how the prophets believed in the truth of that which came to them from God by way of inspiration. We shall not think that what the prophets heard or saw in allegorical figures may at times have included incorrect or doubtful elements, since the Divine communication was made to them, as we have shown, in a dream or a vision and through the imaginative faculty. Scripture tells us that whatever the Prophet perceives in a prophetic vision, he considers as true and correct and not open to any doubt; it is in his eyes like all other things perceived by the senses or by the intellect. This is proved by the consent of Abraham to slay "his only son whom he loved," as he was commanded, although the commandment was received in a dream or a vision. If the Prophets had any doubt or suspicion as regards the truth of what they saw in a prophetic dream or perceived in a prophetic vision, they would not have consented to do what was unnatural, and Abraham would not have found in his soul strength enough to perform that act, if he had any doubt [as regards the truth of the commandment]. It was just the right thing that this lesson derived from the akeida should be taught through Abraham and a man like Isaac. For Abraham was the first to teach the Unity of God, to establish the faith [in Him] etc.

Amazing. The Rambam here says that the lesson of the akeidah is specifically to teach us not to think that the prophets had any doubts regarding their nevuah, even if they did see in dreams or visions. The whole point is that since Avraham was even willing to kill his son based on this prophecy it shows that the prophecy was 100% clear to Avraham with no doubts as to its interpretation. Had there been any doubt, the Rambam even says that Avraham surely would not have followed through! This is the exact opposite pshat of the standard pshat I have heard numerous times in countless shmuessim and of the pshat given by the Avi Ezri. Not only is it the opposite pshat, it's actually the lesson being conveyed by the akeidah not to think this way!

Note one other point. The Rambam (a little earlier in the same piece) says there is another lesson to the Akeidah. The lesson being just how far one must go in the fear of Hashem. He must be willing even to give up his child. The Rambam says this lesson despite the fact that the Rambam says that the nevuah was 100% clear to Avraham. In other words, the Rambam isn't bothered at all by the question of the Avi Ezri, what is the big deal about the akeidah if Hashem said so? No, it is a big deal to the Rambam even if Avraham heard it directly from Hashem! It's still shows Avraham's greatness that he was willing to follow through with the akeidah.

Kedushas Azkaros

2008-11-30T06:36:00.000-08:00

אֲבָל מִין יִשְׂרָאֵל שֶׁכָּתַב סֵפֶר תּוֹרָה, שׂוֹרְפִין אוֹתוֹ עִם הָאַזְכָּרוֹת שֶׁבּוֹ, מִפְּנֵי שְׁאֵינוּ מַאֲמִין בִּקְדֻשַּׁת הַשֵּׁם, וְלֹא כְתָבוֹ אֵלָא וְהוּא מַעֲלֶה בְּדַעְתּוֹ שֶׁזֶּה כִּשְׁאָר הַדְּבָרִים; וְהוֹאִיל וְדַעְתּוֹ כֵּן, לֹא נִתְקַדַּשׁ הַשֵּׁם, וּמִצְוָה לְשָׂרְפוֹ, כְּדֵי שֶׁלֹּא לְהַנִּיחַ שֵׁם לַמִּינִים וְלֹא לְמַעֲשֵׂיהֶם אֲבָל גּוֹי שֶׁכָּתַב אֶת הַשֵּׁם, גּוֹנְזִין אוֹתוֹ; וְכֵן כִּתְבֵי הַקֹּדֶשׁ שֶׁבָּלוּ אוֹ שֶׁכְּתָבָן גּוֹי, יִגָּנְזוּ

Here the Rambam seems to state that theoretically if a non-Jew writes the name of Hashem with the intention that it is, in fact, Hashem's name - there is kedusha to that shem. It's only when the writing is done without the proper intention that there is no kedusha and that it must be burnt.

In his chiddushim on the Rambam in Hilchos Tefillin, Rav Chaim Soloveitchik points out that in this respect the lishma needed by ST"aM (Sefer Torah, Tefillin, and Mezuzos) is different than the lishma needed to give a shem Hashem kedusha (rendering it assur to erase that shem).

By ST"aM there is an additional din of lishma that is needed to make the Sefer Torah etc. kosher. A non-Jew is incapable halachically of creating this lishma, and is therefore unable to create a kosher sefer torah etc. However, there is no din of "lishma" per se that is needed by creating a Shem Hashem. Rather, the name just needs to be written "b'toras shem". It needs to be written with the intention that it is the name of Hashem, as opposed to some other word.

Rav Chaim also makes an additional interesting distinction. He explains that the standards for being a Shem Hashem as far as the issur mechica may be different than the standards needed for a Shem Hashem in a Sefer Torah. As far as issur mechika it could be that all you need is "b'toras shem". However, for a sefer torah the azkaros may need additional kavanah lishma as well.

Shem HaMeforash

2008-11-23T10:04:00.000-08:00

ב וְשִׁבְעָה שֵׁמוֹת הֶן--הַשֵּׁם הַנִּכְתָּב יוֹד הֵא וָאו הֵא וְהוּא הַשֵּׁם הַמְּפֹרָשׁ, אוֹ הַנִּכְתָּב אֶלֶף דַּאל נוּן יוֹד, וְאֵל, וֶאֱלוֹהַּ, וֵאלֹהִים, וְאֶהְיֶה, וְשַׁדַּי, וּצְבָאוֹת. כָּל הַמּוֹחֵק אַפִלּוּ אוֹת אַחַת מִשִּׁבְעָה שֵׁמוֹת אֵלּוּ, לוֹקֶה

Here the Rambam states pretty clearly his opinion that the shem hameforash is the tetragrammaton - the shem yud key vav key. He reiterates this in Moreh Nevuchim 1:61,62,63. There he also cites the gemara in Kiddushin 71a that states that there also exists a twelve letter name of Hashem as well as a 42 letter name. The Rambam there says that these longer names were probably more like phrases that described certain attributes of Hashem. Only the shem hameforash - the four letter yud key vuv key - is a name that can be said to denote more than mere attributes of Hashem. In some way that name even describes Hashem's essence. The Rambam says that we don't know one hundred percent what that name means, but it probably means something along the lines of "absolute existence".

There is a gemara in Sanhedrin 60a that discusses the laws of Megadef. In that gemara there is one part where the gemara says that even when one uses the four letter name of Hashem it is megadef. To which the gemara asks, what is the chiddush? The gemara answers that you may have thought you need the "shem rabba" the great name. So, the chiddush is even the four letter name suffices.

Rashi there says that the shem rabba refers to the 42 letter name of Hashem which he calls the shem hameforash. Rashi seems to learn the gemara in Kiddushin 71a that the 42 letter name mentioned there was the shem hameforash - against the shittas HaRambam. So the question is how does the Rambam learn the gemara in Sanhedrin? What is the Shem Rabba according to the Rambam.

The Rambam in Hilchos Avodah Zarah 2:7 provides an answer:

יב אֵין הַמְּגַדֵּף חַיָּב סְקֵלָה, עַד שֶׁיְּפָרַשׁ אֶת הַשֵּׁם הַמְּיֻחָד שֶׁלְּאַרְבַּע אוֹתִיּוֹת שְׁהוּא אֶלֶף דֶּלֶת נוּן יוֹד, וִיבָרַךְ אוֹתוֹ בְּשֵׁם מִן הַשֵּׁמוֹת שְׁאֵינָן נִמְחָקִין--שֶׁנֶּאֱמָר "וְנֹקֵב שֵׁם-ה' מוֹת יוּמָת" (ויקרא כד,טז), עַל הַשֵּׁם הַמְּיֻחָד חַיָּב סְקֵלָה; וְעַל שְׁאָר הַכִּנּוּיִין, בְּאַזְהָרָה. וְיֵשׁ מִי שֶׁמְּפָרֵשׁ שְׁאֵינוּ חַיָּב אֵלָא עַל שֵׁם יוֹד הֵא וָאו הֵא; וַאֲנִי אוֹמֵר שֶׁעַל שְׁנֵיהֶם, הוּא נִסְקָל

The Rambam here states his opinion that by megadef one is chayav for both four letter names of Hashem, whether it be alef daled or whether it be yud key. Where does he get this halacha?

Apparently, he learns the gemara in Sanhedrin that the four letter name there was the name of Alef Daled. The gemara said that he chiddush is that you don't require the "shem rabba" - the yud key shem hameforash to be chayav - but rather either four letter name of Hashem suffices. Thus, the Rambam's chiddush that even the shem alef daled is chayav by megadef is a direct consequence of his shittah that the shem hameforash is yud key vav key.

[As a final note - in case you are wondering what happened to the well known 72 letter name of Hashem - see Breishis Rabbah that quotes R' Avina that Hashem redeems His children with his 72 letter name.]

*See the Tzafnas Paneach in Hilchos Avodah Zarah that seems to be indicating this pshat in the Rambam.

The Middah of Avraham Avinu

2008-11-08T16:42:00.000-08:00

If you ask most people what is the middah of Avraham Avinu without a doubt the majority would answer the middah of chesed. This is derived primarily from the story of hachnasas orchim in the beginning of Parshas VaYera and other midrashic sources that surround this episode. It is also derived from the pasuk in Micah 7:20 Titein emes l'yaakov chesed l'avrohom. The idea is that the midah of Chesed belongs to Avraham, Gevurah to Yitzchak, and Emes to Yaakov. It pays to note, however, that this is not the simple explanation of the passuk. The passuk is actually referring to the fact that Hashem should keep his promise to the Avos and return us to the land of Israel. As the Radak there explains, chesed refers to the fact that Hashem promised us the land as an act of kindness. Emes refers the the fact that he will make good on the promise to the fathers and deliver to the sons. Nevertheless, the Ramban (see Bereishis 17:22 and 31:42) offers the Kabbalistic interperetation that these middos belong to the avos - chesed being Avraham's middah. This is the source of the many Divrei Torah surrounding Avraham Avinu and the middah of Chesed.

However, if one were to ask the Rambam, what would he say is the middah of Avraham? The Rambam spells out the answer directly in two places. In Mitzvas Aseh 3, in the mitzvah of Ahavas Hashem, the Rambam says that Avraham Avinu was the paradigm of Ahavas Hashem. He bases this on two sources. First, the Navi says in Yeshaya (also the Haftorah of Parshas Lech Lecha) Avraham Ohavi. The Rambam takes this as a proof that Avraham Avinu had reached the high level of Ahavas Hashem. The Rambam then goes on to say a mashal. When one person loves another person they will do all in their power to get others to love that person. So too, Avraham Avinu tried to convince all those around him to love Hashem. As the pasuk says V'es hanefesh asher asu b'charan - that Avraham Avinu turned thousands of hearts and mind away from Avodah Zarah and towards the service of the Creator.

The Rambam then repeats this yesod in Hilchos Teshuva at the beginning of Perek 10 where he says that the ideal service of Hashem is Ahavas Hashem - the level of Avraham Avinu.

Thus, it seems clear that if one were to ask the Rambam what is the middah of Avraham Avinu, the Rambam would respond that Avraham Avinu had reached the lofty level of Ahavas Hashem.

The Mitzvah of Anochi

2008-09-18T08:02:00.000-07:00

The first mitzvah in Sefer HaMitzvos according to the Rambam is the mitzvah of Anochi Hashem Elokecha. In the first few halachos of Mishneh Torah (Hilchos Yesodei HaTorah 1:1-6) the Rambam explains in detail what the mitzvah of Anochi means. The Rambam says that the mitzvah of Anochi basically is to know that there is a God that is in control of the whole universe. First, we should note that not all rishonim hold that Anochi is a mitzvah at all. In Sefer Hamitzvos the Ramban defends the opinion of the BeHag that Anochi is in fact not a mitzvah amongst the 613.

However, the Rambam has a solid proof that Anochi is one of the 613 mitzvos. The gemara in Makkos 24a says that there are 613 mitzvos. This idea is learnt from the pasuk of Torah tzivah lanu Moshe. Torah in gematria is 611. 611 of the 613 mitzvos were commanded from Moshe. Two were commanded from Hashem Himself -mipi hagevurah. Those two were Anochi and Lo Yihyeh. Thus, it is clear from the gemara that anochi is one of the 613.

Now, let us return to the Rambam's definition of Anochi. Many point out that when the Rambam talks about the mitzvah of Anochi in Mishnah Torah he uses the word leida - to know. A person has to know that there is a God. He does not say l'haamin - to believe. This is despite the fact that the translators translate Sefer HaMitzvos and Moreh Nevuchim with the word l'haamin. Is this a contradiction in Rambam? I don't know. However, I believe that the Rambam intentionally used the word Leida based on a passage in Moreh Nevuchim.

In Moreh Nevuchim the Rambam offers a novel interperetion of the gemara in Makkos. The Rambam says that when it says in the gemara that Anochi and Lo Yihyeh were heard by klal yisrael mipi hagevurah it doesn't mean they heard Hashem say those words. Rather, it means that those two mitzvos - the existence and unity of God - are logical. They do not require faith in a prophet such as Moshe Rabbeinu. Thus, all of klal yisrael had the same understanding of those two mitzvos as Moshe Rabbeinu. As the Rambam explains, knowing something through logic holds the same level of knowledge as knowing something through nevuah. Thus, it is specifically anochi and lo yihyeh that are known as opposed to believed. All other mitzvos are done because we believe in the prophecy of Moshe Rabbeinu. But, these two mitzvos are known independantly of that.

From this it seems clear that the Rambam intentionally uses the word leidah. The Ran in Derashos (drush 9) argues with the Rambam. He says mipi hagevurah literally means they heard those commandments from Hashem. He also disputes what the mitzvah of anochi is. He says that anochi isn't merely that there is a God. Rather, the mitzvah of anochi is to recognize that the God who took us out of Egypt gave us the Torah. The mitzvah really is that there is Torah min Hashamayim. As the Ran explains, knowing that there is a God is logical. However, how do we know He cares about are actions? How do we know about His hashgacha on the world? That requires Mipi Hagevurah - actually hearing it from Hashem Himself.

Thus, the Ran and the Rambam dispute the basic mitzvah of Anochi as well as the gemara in Makkos. In the Rambam Mipi HaGevurah is logic and the mitzvah of Anochi is simply knowing that God exists. In the Ran, Mipi HaGevurah means from the mouth of the Almighty - we actually "heard" Hashem say these dibros (whatever that means). And, the mitzvah of Anochi is about more than the mere existence of God - it is about the concept of Torah min Hashamayim - an idea that truly requires "mipi hagevurah".

It is interesting that the Rambam does use the terminology of emunah later in Hilchos Yesodei Hatorah when he discusses why klal yisrael "believed" in the nevuah of Moshe Rabbeinu. It seems clear that the Rambam is setting up two categories of mitzvos. Anochi and Lo Yihyeh are the foundations of the Torah and are known logically and independently of nevuah. All the other mitzvos of the 613 are known because we believe in the nevuah of Moshe Rabbeinu, which the Rambam discusses more in depth later in Mishnah Torah.

Placebo Effect in Halacha

2008-06-18T20:46:00.000-07:00

The last post got me thinking about the how the Placebo Effect works with halacha. In the last post we discussed what type of medicinal treatments are permitted according to halacha, and which are prohibited due to darchei haemori. We concluded that post as follows:

The Rashba seems to be saying that in order for a medicine to be considered rational we don't have to know why it works. We only need to have a rational basis for using the medicine. A rational basis can exist due to logic (it makes logical sense that this medicine should work even though it hasn't yet been tested) or due to observation (we have no idea why it works we just have observed that it does). What is forbidden is to use a medicine that we have no rational reason to believe works. If it makes no sense why it should work, nor has it been observed to work then it is forbidden.

It's the observation line that I want to focus on. As I wrote in the post, there are two reasons why a particular medicine or medical treatment could be considered rational. One is that it is logical that the treatment should work. Even if it is a totally new treatment that hasn't been tested it can still be considered a rational treatment if their is some logical reason why doctors think it will work.

The second reason that a treatment could be considered rational is because we have observed that it works - even though we don't know why or how it works. What's interesting to consider is that ever since the early 20th century medical science has been working under the premise that there exists a placebo effect. Meaning that a completely ineffective therapy can still work, simply because the patient believes that it will work. The question therefore is - what do we do with the rishonim who permitted certain medical treatments because those treatments were observed to be effective. Was that observation a "real" observation or was it just the placebo effect working? And in general, must we take the placebo effect into account as far as halacha? Do we define observation l'halacha the same way scientists define it? If we do, then that would mean that one could never take any medicine or medical treatment that hadn't been tested in a placebo-controlled study in a double-blind fashion (unless there was a logical reason why the medicine should work).

The placebo effect does make it into halacha in another scenario. Imagine a patient who believes that some non-kosher medicine will heal him. Now, the doctors actually don't believe it. It's totally untested and illogical. The question becomes is it considered a valid medical treatement or not? If it is, then we might be able to use it even though it isn't kosher (assuming other necessary conditions are met). If not, we surely cannot give someone non-kosher for no reason.

How can it possibly be considered a real medical need? The answer is that since the patient believes it will work it might just help him. Basically, it's the placebo effect at work. In fact there are poskim who have permitted just this case in certain specific situations for exactly this reason. The psychological benefit of taking the medicine is enough to declare it "medical" and permit it. Because the patient truly believes that this might work it becomes a possibly effective treatment and may become muttar even if it isn't kosher.

This then brings us back to our question regarding the times of the rishonim. Even if there were no placebo-controlled studies, the fact is that the people fully believed that these treatments worked. They had even "observed" them working. Therefore, the treatments, in a sense, did work precisely because people believed it! Accordingly, this may be enough halachically to be considered a real medicine and it becomes muttar. Just some food for thought.

* No post on Talking in Learning is intended halacha l'maaseh. Always consult your halachic authority for final rulings.

Segulos and Darchei HaEmori

2008-06-16T16:59:00.000-07:00

The Tosefta in Shabbos (Chapters 7 & 8) lists various practices which are prohibited due to the fact that they are darchei haemori. For example, putting thorns in a window to protect a pregnant woman or tying an iron to one's bed. These things all have one basic common feature. They are irrational - meaning they are not scientifically or observably proven remedies. (We will come back to this to try to better define what is considered "irrational".)However, the gemara in Shabbos 67a has a seemingly different rule regarding medicine. Abaye and Rava say that "anything done for healing isn't darchei haemori". The mishna applies this rule to several seemingly irrational medical treatments - tooth of a fox, egg of a grasshopper etc.

How do we reconcile these two sources? Here we will present three rishonim who write on the issue:

Rambam - The Rambam in Moreh Nevuchim 3:37 (see also Rashi in Shabbos there) seems to say that, in fact, when it comes to medicine the rule is the same as any other segulah. If a method of healing is not observable by medical science it is forbidden. He seems to learn that the methods mentioned in the mishna in Shabbos were considered rational healing methods.

Ran - The Ran (Drashos HaRan 12) disputes this approach. He learns that when it comes to healing there are two appropriate methods. There are some healing methods that are physical and there are others that are non-physical. Both are appropriate as long as they effective methods that are shown to work. The only healings that are forbidden are ineffective ones which was the way of the Emori - who used silly useless things to heal.

Rashba - The Rashba (Shu"t 413) writes that the Rambam would agree with this position of the Ran. He compares the non-physical healings of the Ran to a magnet. A magnet has power that cannot be seen - yet of course it works. It is a rational thing to believe that a magnet will draw things to it. So too with non-physical healings. As long as they are established as working, they are perfectly rational and the Rambam would certainly agree that they are permitted.

What seems to be at issue here is really how we define rational. The Rashba seems to be saying that in order for a medicine to be considered rational we don't have to know why it works. We only need to have a rational basis for using the medicine. A rational basis can exist due to logic (it makes logical sense that this medicine should work even though it hasn't yet been tested) or due to observation (we have no idea why it works we just have observed that it does). What is forbidden is to use a medicine that we have no rational reason to believe works. If it makes no sense why it should work, nor has it been observed to work then it is forbidden.

At the end of this discussion it would appear that all three of these rishonim agree that in the mishna in Shabbos there was some rational basis for using those particular methods. Had there been no rational basis it would have been forbidden.

*For a much more in-depth discussion on this issue see RJJ Journal Vol. 54 - Segulot, Superstitions, and Darchei Emori by Rabbi Yitzchok Gutterman.

Einstein vs. Edison - A Victory for Iyun

2008-06-04T20:51:00.000-07:00

From Walter Isaacson's new bio of Albert Einstein (p. 299):

While in Boston, Einstein was subjected to a pop quiz known as the Edison test. The inventor Thomas Edison was a practical man, getting crankier with age (he was then 74), who disparaged American colleges as too theoretical and felt the same about Einstein. He had devised a test he gave job applicants that, depending on the position being sought, included about 150 factual questions. How is leather tanned? What country consumes the most tea? What was Gutenberg's type made of?

The Times called it " the ever-present Edison questionnaire controversy," and of course Einstein ran into it. A reporter asked him a question from the test. "What is the speed of sound?" If anyone understood the propogation of sound waves, it was Einstein. But he admitted that he did not "carry such information in my mind since it is readily available in books." Then he made a larger point designed to disparage Edison's view of education. "The value of a college education is not the learning of many facts but the training of the mind to think," he said.

Well said Einstein.

When Does One Make a Leisheiv B'Sukkah?

2008-05-30T13:04:00.000-07:00

The Rambam in Hilchos Succah 6:12 writes (in the name of his Rabbis as well as l'halacha) that on the first night of Succos one should make Kiddush standing up so that he can sit down after he makes the bracha of leishev b'succah (thus fulfilling the inyan of making the bracha before the mitzvah). [Derech Agav - Many are medayek from here that the rest of the year the Rambam would hold to sit during kiddush.] The Rosh in Succah 4:3 asks, the mitzvah of "sitting" in the Succah doesn't really mean sitting literally?! It just means to live in the succah. So if you truly want to make the bracha before the mitzvah - why not make it before you enter the succah?

The Taz in O.C. 643:2 anwers that just walking into a succah isn't recognizably a mitzvah of dwelling in the succah, because you may just walk right back out. Chazal were only mesaken a bracha for recognizably dwelling in the succah.

R' Hershel Schachter in Eretz HaTzvi Siman 3 writes as follows:

Chachamim weren't meseken a birchas hamitzvah for a kiyum hamitzvah, but only for doing a maaseh mitzvah. Granted that one who enters a succah and is standing there has been mekayem a mitzvah by entering of yeshivas succah, however on a kiyum like this there is no takkana for a bracha.

And even though entering and walking into the succah is certainly a maaseh gamur, nevertheless the Rabbis of the Rambam hold that it is not a maaseh mitzvah mesuyam until you sit mamash in the succah.

Basically R' Schachter is being mechalek between a maaseh mitzvah and a kiyum mitzvah. One only makes a bracha on a maaseh mitzvah and not a kiyum. R' Schachter points out in the footnote that not everyone agrees to this principle. For example, if someone puts a mezuzah up in someone else's house - who makes the bracha? The guy who puts it up is doing the maaseh mitzvah. The owner of the house has the kiyum. It's actually a machlokes who makes the bracha. Here R' Schachter is following the opinions that it's the one who does the maaseh mitzvah that makes the bracha.

Regardless, R' Schachter himself points out the downside of this approach. Isn't walking into the succah a maaseh? So we haven't really answered the question. Why make the bracha specifically before sitting down? So R' Schachter circles back and says that although entering is a maaseh it's not a maaseh mesuyem (a structured and defined maaseh).

We posted earlier on a similar issue. Why not make a bracha on sleeping in the succah? In that post we quoted from Reshimos Shiurim on Succah that R' Soloveitchik asks, is sleeping a kum v'aseh or a shev v'al taaseh? He seems to conclude it is shev v'al taaseh. Meaning, in halacha "going"to sleep isn't considered active, but passive. Thus, we suggested that it is not a maaseh and there is no bracha. If so, perhaps the same is true by merely entering the succah. Just "being" in the succah isn't an action. It isn't a maaseh mitzvah - even if it is a mitzvah. Perhaps that is also what R' Schachter means when he says it isn't a maaseh mesuyem.

It All Depends on How You Define the Word "Count"

2008-05-29T10:09:00.000-07:00

The Torah tells us to "count" things several times. Sefiras HaOmer is a famous example of counting. There is also the "7 clean days" counted by a zavah. Finally, there is also the counting of years leading up to Yovel.

The Rambam in Shemittah V'Yovel 10:1 implies that Beis Din HaGadol has a mitzvah to actively count the shemittah years until reaching yovel. The Rambam does not mention making a berachah on this count.

However, Tosafos in Menachos 65b (d"h Usfartem) does mention counting with a beracha. Although Tosafos in Menachos is mesupek in the end, Tosafos in Kesuvos 72a is definitive that Beis Din does make a beracha on the count towards yovel.

Interestingly, Rabbi Akiva Eiger (Shu"t Kamma 29) relates making a beracha to having to count out loud (as opposed to just counting in one's brain). R' Akiva Eiger says that since the Rambam mentions no beracha perhaps the Rambam holds that Beis Din does not have to vocally count the years of shemittah. I'm not sure how a unit of people like Beis Din would count in their brains - maybe they could put up a sign what year it is or something like that. In any case, the pashtus of the Rambam is that Beis Din does count out loud - but we would still have to deal with the beracha issue.

What about the count by zavah? R' Akiva Eiger mentions that the poskim unanimously agree that the zavah doesn't actually need to count the days - she just needs to "keep count" - meaning to keep track of how many clean days she has had. However, it is not totally unanimous.

The Shelah is mentioned in a note on the side of Tosafos in Kesuvos 72a that he understands Tosafos to hold that a zavah actually does count the seven days - she just doesn't make a beracha. The other way to read Tosafos is that Tosafos is saying the Zavah doesn't have to count at all.

The Noda B'Yehuda (Tinyana Yoreh Deah 123) famously comments that the Shelah in his holiness made a mistake and added mitzvos that don't exist - for there is no mitzvah for a zavah to actually count the days. She only needs to keep track.

Besides the Shelah I saw that Footnote 4 on the same R' Akiva Eiger mentions that the Sefer Agudah in the name of the Ri (Menachos 86 Siman 32) also holds that the Zavah has a mitzvah to count. So again, it's not totally unanimous.

Finally Tosafos in Menachos comments on the grammer of the pesukim. By Yovel it says "and you will count" in singular. Therefore, it refers to Beis Din. However, by Sefiras HaOmer it says "and you will count" in plural - which means each individual must count.

However, we should note that the word "count" is mentioned in reference to sefiras haomer more than once and the singular is also used. In fact, the Sifri at the end of Parshas Reah implies that the mitzvah of sefiras haomer is two mitzvos - one on Beis Din and one on the individual. This is consistent with the two usages in the pasuk. However, the Gra changes the girsa of the Sifri that the count of Beis Din is only a hava amina in the Sifri - and not l'maskana. Nevertheless, the Chizkuni at the beginning of Parshas BeHar seems to say even l'maskana that there are two mitzvos by Sefiras HaOmer - one on Beis Din and one on the individual.

*For more on this topic see Sefer Eretz HaTzvi by Rabbi Hershel Schachter Siman 3.

The Tur vs. the Rambam...

2008-05-19T20:39:00.000-07:00

could've been the title to my previous post. So in case the previous title turned you off - have another look ;)

Shaving with a Razor - Taam HaMitzvah

2008-05-17T21:34:00.001-07:00

The Tur in Yoreh Deah Siman 181 quotes the Rambam who gives a reason behind the issur of shaving with a razor. The Rambam says that the reason behind this prohibition is that since it was the way of idol-worshippers to shave in this fashion therefore the Torah prohibited it. (See Rabbeinu Bachya VaYikra 19:27 for some different approaches.) The Tur questions the need for the Rambam to give the taam hamitzvah at all. Aren't all mitzvos obligatory regardless of the reason behind them? (See the commentators on the Tur who address his argument.)

In general this Rambam does pose a difficulty because it is found in Mishneh Torah. Generally, the Rambam reserves taamei hamitzvah for the Moreh Nevuchim. Why did the Rambam feel it was necessary to state the taam hamitzvah for shaving with a razor?

I believe the answer is simple. The Rambam places the halachos of giluach hazakan in Hilchos Avodah Zarah Perek 12. Therefore, the Rambam has to justify this placement. Imagine if the Rambam hadn't written that these laws of shaving were due to the practices of idol-worshippers. The question would jump off the page! What in the world are halachos of shaving doing in Hilchos Avodah Zarah??

This highlights the general difference between the way the Rambam categorized halachos and the way the Tur did. The Tur divided everthing into four basic sections - Orach Chaim, Even HaEzer, Choshen Mishpat, and Yoreh Deah. Let's take Yoreh Deah as an example. It is essentially is a collection of issur v'heter. The different issurim dealt with in Yoreh Deah are not necessarilly related to one another. Shaving and Kashrus don't really go hand in hand. The same can be said for Orach Chaim. The Rambam placed Hilchos Shabbos and Hilchos Tefillah in totally different sections of Mishneh Torah. But in the Tur they are all part of Orach Chaim.

The categories that the Rambam created were not merely meant for convenience. They were meant to describe the essential nature of the halachos. Hilchos Tefillah for example is in the section Ahava - Love. By placing Hilchos Tefillah in Ahava the Rambam is telling us something about the nature of Tefillah. Tefillah has to do with loving the Creator. The Tur, on the other hand, places Hilchos Tefillah in Orach Chaim - laws that have to do with day to day living. The Tur is noting a characteristic of Hilchos Tefillah - but he is not attempting to describe the basic nature of Tefillah.

In the Tur's division of the halachos shaving isn't part of any broader area of halacha. It is simply it's own category - the laws of shaving of the beard. In the Rambam shaving belongs to the broader category of Hilchos Avodah Zarah. Hilchos Giluach HaZakan does not merit its own section in the Rambam's Mishneh Torah.

We'll just conclude by noting the obvious - that the goal of the Baal HaTurim in writing the Tur was totally different than the goal of the Rambam in writing Mishneh Torah. The Baal HaTurim was concerned with recording the practical halacha l'maaseh so people would know what it is they were supposed to do. That is why he divided the laws into four sections which would be intuitively searchable to the laymen. If I want to know how to live my daily life I'll check Orach Chaim. If I want to know about money matters - Choshen Mishpat. That's also why the Tur left out all the laws that don't apply nowadays. The Rambam on the other hand was interested in recording - in an organized fashion - all of Torah Shebaal Peh. The categories weren't created for the purpose of easily finding out what to do - but rather they were created to help understand all the details within their broader context.

Shliach L'Havaah

2008-05-15T18:41:00.000-07:00

When it comes to marriage and divorce generally speaking the man or the woman can appoint a shliach to carry out their respective parts of the process. A man can appoint a shliach l'holacha to deliver the get (or kiddushin) to his wife. Likewise, a woman appoints a shliach l'kabbalah to receive the get.

The Ran in Gittin on Daf 28a (dapei harif) discusses the possibility of a woman appointing a shliach l'holacha to deliver her the get from her husband. The Rambam says that this is possible and he calls this shliach a "shliach l'havaah". This Rambam is found in 6:4 of Hilchos Gerushin:

ד] וְכֵן הָאִשָּׁה שׁוֹלַחַת שָׁלִיחַ לְהָבִיא לָהּ גִּטָּהּ מִיַּד בַּעְלָהּ, וְזֶה הוּא הַנִּקְרָא שְׁלִיחַ הֲבָאָה. וְאֵין שְׁלִיחַ הוֹלָכָה וַהֲבָאָה צָרִיךְ עֵדִים

The question is obvious. How can a woman create a shliach to deliver the get? If the delivery of the get is the husband's job, shouldn't a shliach delivering the get automatically be a shliach of the husband? In what way is the shliach l'havaah a shliach of the woman?

The Ran suggests that really a shliach l'havaah is a shliach l'kabbalah al hatnai. Really, the shliach is fully the shliach of the woman and upon his reception of the get the woman should be divorced. However, the woman makes a tnai in the shlichus that the divorce will only happen upon her receiving the get.

(The idea that the woman can make a tnai in the reception of the get is interesting because in general a woman is divorced against her will - and thus has no "control" to make tannaim. Apparently, the Ran is saying that when the woman makes a shliach she can make tannaim within the shliach.)

While this pshat works in general - it seems that it cannot work in the Rambam. The Rambam we quoted above clearly states that no eidim are needed when appointing a shliach l'havaah. This is similar to a shliach l'holacha and not shliach l'kabbalah. If a shliach l'havaah was merely a shliach l'kabbalah with a tnai - surely eidim would be needed.

I heard the following pshat to explain the shitas haRambam. There is a halacha of nesinah by get - that a get must be given to the woman. The husband may not place the get on the ground and have the woman pick it up. This is lacking in nesinas haget.

By shliach l'havaah we can suggest that the shliach is the yad of the woman only for the purpose of fulfilling the halacha of v'nasan b'yadah. When the husband gives the get to the shliach the nesinah has been accomplished. Then, the shliach gives the get to the woman and with her zechiyah in the get she is divorced. But, the shliach l'havaah doesn't even need to give the get to the woman because the giving has already been done. Rather all that remains to be done is the woman taking possession of the get. Thus, the shliach l'havaah can theoretically place the get on the ground and allow the woman to pick it up and there would still be a divorce.

According to this we understand why there is no need for eidim by shliach l'havaah. A shliach l'havaah is not a shliach l'kabbalah. Only a shliach l'kabbalah needs to be appointed with eidim because that shliach is an integral part of the actual divorce - because the divorce is primarily affected by the receiving of the get by the woman. A shliach l'holacha and shliach l'havaah on the other hand are only involved in the din of v'nasan b'yadah. This din is not the actual divorce but just one of the prerequisite dinim involved in the divorce. Thus, these shluchim do not need to be appointed with eidim.

Lifnei Iveir - Bad Advice or Causing an Aveirah?

2008-05-07T07:12:00.000-07:00

The gemara in several places says that if one enables another to do an aveirah it is considered lifnei iveir lo siten michshol. For example, in Pesachim 22a it says that if one hands a cup of wine to a nazir that is considered lifnei iveir. The question is what happens if I assist someone in doing an aveirah midrabbanan. Is it possible that even though I aided in a drabbanan that I am guilty of a d'orayssa? This is actually a dispute amongst rishonim [see Tosafos, Avodah Zarah 22a, d"h tepuk ; Minchas Chinuch 231:3 (in the hashmatos); and Sdei Chemed 9 : 36 (p .6)]. Some argue that, indeed, the aider cannot be worse off than the one he aided.

However, others argue that even if the aveirah is d'rabbanan - still the lifnei iveir is d'orayssa. How can this be?

An interesting approach I saw* is that it depends what the issur of lifnei iveir is. If you say the that main nekudah of lifnei iveir is not to cause someone to sin - so of course your sin cannot be worse than the sin you caused. However, if the issur of lifnei iveir is simply to not to give someone bad advice. An issur d'rabbanan is also bad advice and your aveirah can very well be a d'orayssa.

*I saw this explanation in the Journal of Halacha and Contemporary Society Volume 19 - see the article on "Enabling a Jew to Sin" by Rabbis Michael Broyde and David Hertzberg in footnote 14.

Not Testifying on a Minor / Eidus L'Kiyum HaDavar

2008-05-07T06:49:00.000-07:00

The Rambam in Hilchos Gerushin 6:9 says that a ketanah cannot make a shliach l'kabbalah to receive her get because appointing a shliach l'kabbalah needs witnesses and "we don't testify on a katan". The obvious question is why not give a simpler reason - a katan can never appoint a shliach because he/she has no daas?

R' Chaim on the Rambam answers that even though a ketanah can't appoint a shliach, she can have a shliach through zachin l'adam shelo b'fanav (assuming a scenario that the divorce was a zechus). Therefore, the Rambam said that even with zachin she cannot have a shliach l'kabbalah because in order to appoint a shliach l'kabbalah there must be eidim present and "we don't testify on a katan".

What does it mean that one needs eidim to appoint a shliach l'kabbalah. R' Chaim further explains that there are two types of eidim. First, there are eidim l'birur hadavar. These are eidim that simply tell us what happened. For example, they may inform us that someone was mechalel shabbos or stole.

There is another type of eidus, though, called eidus l'kiyum hadavar. For example, by a marriage or divorce eidim are needed at the event to make it a legal marriage or divorce. They are not only telling us what happened, they are part of what allows it to happen. By a shliach l'kabbalah there is a requirement of eidus l'kiyum hadavar, whereas there is no such requirement by a shliach l'holacha (the shliach who deliver the get or kiddushin on behalf of the husband).

In Hilchos Yibum V'Chalitzah 4:16 Rav Chaim further explains the idea of needing eidus l'kiyum hadavar. He explains that for some "halachic events" all that is required to create the challos is the maaseh. [For example, by shechitah you just need to do the maaseh shechitah and the animal is shechted.] Other times the challos is created by the daas of the person doing the maaseh. [For example by divorce the husband is really using his daas to divorce the wife - it isn't just purely a maaseh.]

Sometimes the line is blurred in this. For example, by chalitzah Rav Chaim says that the challos is really affected purely by the maaseh. However, part of the maaseh chalitzah is kavanah. This is not the same as saying that daas creates the challos. The difference is that by chalitzah if a katan does a chalitzah with a gadol instructing him what kavanah to have - it works. This is true even though a katan has no daas. The idea is that the kavanah is just a part of the maaseh chalitzah - but the maaseh creates the challos - not the daas.

Therefore, Rav Chaim explains that by gerushin and kiddushin where the daas baalim creates the challos - there is a rule that eidim must be present also for the challos. The requirement for eidim is directly connected to the requirement of daas. This is specifically true by dvarim shebervah because of the rule of ein davar shebervah pachos mishnayim. By other areas of daas we don't necessarily require eidus l'kiyum hadavar - for example by appointing a stam shliach.

Apparently by appointing a shliach l'kabbalah there is an involvement of daas that is considered to be davar shebervah. However, by a shliach l'holacha it's just a regular shliach in kol hatorah kulah and there is no need for eidus l'kiyum hadavar.

Sending Away the Mother Bird

2008-04-16T13:51:00.000-07:00

There is an interesting machlokes acharonim regarding the mitzvah of Shiluach haKan. If one happens upon a bird's nest and does not need the eggs - must he send away the mother bird anyway?

The Kollel Iyun HaDaf discusses this issue (link - lightly edited for clarity purposes):

The Pischei Teshuva (YD 292:1) cites the Chavos Yair (#67) who concludes that one is obligated to send away the mother bird whenever possible. He proves this from the Gemara here [Chullin 139b], which he understands to be saying that one is not obligated to go searching for a bird's nest in order to fulfill the Mitzvah, but one is obligated to perform the Mitzvah when he chances upon a bird's nest, even if he does not need the eggs. (The Chavos Ya'ir cites proof for this ruling from the words of the Zohar; see Insights to Chulin 138:5.)

This is also the view of the Maharal (Tiferes Yisrael, end of chapter 61), Maharsham (1:209), Birkei Yosef (YD 292:8), and Aruch HaShulchan (YD 292:1-2).

This obligation applies even to a person who has absolutely no interest in owning the contents of the nest, and even if stopping to fulfill the Mitzvah will cause him to suffer a monetary loss, as the Chasam Sofer (OC #100) and Netziv (in Meromei Sadeh here) explain this view. The reason for this is that since the performance of this Mitzvah hastens the Ge'ulah (as described in Insights to Chulin 138:4-5), one is not allowed to squander such an opportunity, and thus it is a Halachic requirement to fulfill the Mitzvah. In addition, a person who sees a nest and does not perform the Mitzvah is punished in a time of Divine anger (Pischei Teshuvah loc. cit.).
It is interesting to note that the Arizal (quoted by Rav Chaim Vital in his introduction to Sha'ar ha'Mitzvos; Birkei Yosef, Gilyon Shulchan Aruch YD 292:6, and Aruch ha'Shulchan YD 292:1) writes that according to Kabbalah, one must make every effort to perform Shilu'ach ha'Ken. He adds that one who does not perform the Mitzvah of Shilu'ach ha'Ken will return to this world as a Gilgul.)

However, the Chacham Tzvi (#83) and Chasam Sofer (OC #100) rule that when one has no need for the offspring, he is not obligated to send away the mother bird. The Chasam Sofer adds that if the purpose of the Mitzvah is to inculcate in us the trait of compassion (see Insights to Chulin 138:4), then it is clear that we are not obligated to send away the mother bird when we have no need for the offspring, because doing so causes distress to the bird for no reason.

This is also the opinion of many Rishonim, including Tosafos (140b, DH Shnei), the Rambam(Hilchos Shechitah 13:5), Ran, Meiri (139b), and Rabbeinu Bachya (end of Devarim 22:7).
This view agrees that it is meritorious and commendable to pursue and perform the mitzvah, but it is not mandatory to do so and one is not punished for not doing so. In addition, all opinions agree that the Mitzvah is fulfilled l'Chatchilah even when one desires the contents of the nest exclusively so that he can send away the mother and perform the Mitzvah, and he will not use the contents afterwards.

Most Acharonim rule that there is no obligation to send away the mother bird when one chances upon a nest and has no need for the eggs. This is the ruling of the Chasam Sofer (loc. cit), Avnei Nezer (OC #481), Chazon Ish (YD 175:2), Chazon Yechezkel, Minchas Chinuch (#544), and the Chafetz Chaim (in Sefer HaMitzvos HaKatzer, Mitzvos Aseh #74). Most contemporary Poskim also rule this way, including Rav Shlomo Zalman Auerbach zt'l (in Minchas Shlomo 2:5:4), and Rav Yosef Shalom Elyashiv shlit'a and Rav Chaim Kanievsky shlit'a (in personal conversations with Rabbi Naftali Weinberger). This common practice today. (Rabbi Weinberger quotes Rav Yakov Yisrael Fisher zt'l, however, who was of the opinion that one is obligated to send away the mother bird when he chances upon a nest, even though he does not need the eggs).

Thus, although many acharonim say there is no obligation to send away the mother bird if you don't want the eggs, a significant number argue and say that the obligation is there in any case - as long as you happen upon a bird's nest.

When Issur and Tumah Collide

2008-04-14T07:02:00.001-07:00

The Minchas Chinuch in Mitzah 263 (Din Tumas Kohanim) writes as follows:

And behold I will not refrain from writing what I don't know even though it is possible that it is a davar pashut for one who is a baki in shas and he has good sechel. Still a man like me is not embarrassed to write what is in doubt to me. Behold it is well known in all of shas that safek tumah in Reshus HaYachid is tamei... and safek tumah in reshus harabbim is tahor... and this matter is only by tumah but by issurin there is no nafka minah between reshus hayachid and reshus harabbim... and behold if one is tamei with a safek tumah in reshus hayachik he is forsure tamei... I am in doubt what is his halacha as far as issur for example like over here with a kohen and nazir that if there is a safek tumah in reshus hayachid or even sfek sfeka if he touches it he is forsure tamei... But if they warned him not to become tamei and he transgressed and became tamei does he get malkos? Or do we say that the Torah revealed this only for tumah...

In other words, the Minchas Chinuch is mesupak as to what is the halacha of safek tumah in reshus hayachid when it comes to the issur of coming into contact with tumah. Do we apply the rules of safek tumah or the rules of safek issur?

The Esvan D'Orayssa in Klal 21 deals with a similar issue. He introduces the piece as follows:

Here we will speak on the inyan of niddah to her husband. Is it issur or tumah?

At the end of the piece he quotes an Aderes Eliyahu from the Gra as follows:

And see also the Gra in Sefer Aderes Eliyahu where he says as follows in Parshas Shoftim on the pasuk of Ki Yipalei Davar etc. and here are his words:

That the torah is divided into six parts tahor and tamei, assur and mutar, and chavav and zakai. Bein Dam L'Dam this is Issur and Mutar to make a woman pure for her husband...

The Esvan D'Orayssa finishes with the following words:

And it is clear that dam niddah and zivah that assur a woman to her husband are in the category of issur and not in the category of tumah.

* For more on this topic see Siman 2 of Sefer Eretz HaTzvi by Rabbi Hershel Schachter.

How Many People are Needed for a Minyan?

2008-04-14T07:02:00.000-07:00

In this previous post we discussed the issue of Pores Al Shma. We mentioned that according to Rashi the mishna is basically saying that for kaddish and kedusha you need 10 people. The gemara there in Megillah 23b explains that the pshat in the mishna is that all things classified as "davar shebikdusha" need 10 people for a minyan.

Interestingly there is a Meseches Sofrim (10:7) which at first glance seems to argue with this gemara in Megillah. Here are some excerpts from that Meseches Sofrim:

And one does not say Kaddish and Borchu with less than 10... Our Rabbis in the west say... with seven... [as it says] bifroa peraos etc... and some say even six... And in a place where there are nine or 10 that already heard either Borchu or Kaddish and after tefillah one of these gets up and says Borchu or Kaddish and they answer after him he is yotzei. And the Chachamim were already mesaken for the Chazanim that after geulah they say Yehi Shem Hashem Mevorach... and after this Borchu in order to be motzee those that haven't heard because R' Yochanan said "Halvei that a person should daven all day". And the people of the west and east have a custom to say it after Oseh Shalom in the three tefillos of shemoneh esrai as a gezairah fro those who have just entered and a gezairah for those leaving and even after krias hatorah...

The Rishonim in Megillah mention this Meseches Sofrim. Some say that the Rabbis of the West argued with our gemara and actually required less than 10 for a minyan. Others say that the Meseches Sofrim doesn't mean to say that you need 6 or 7 for a minyan, but only means that you need 6 or 7 who have not yet davened to be a part of the minyan.

In Iggros Moshe O.C. 1:28 Rav Moshe mentions using the concept of Rubo K'kulo when it comes to minyanim. He says that obviously the rule of Rubo K'kulo does not apply to shiurim. So, if you need a minyan of 10 people you can't say that with 6 you have a minyan because of rubo k'kulo. However, he says that if 6 of the 10 have not yet davened you can apply rubo k'kulo and say that you have an "entire" minyan of people who are chayav in davening.

We find the idea of rubo k'kulo applied here in the words of the Ran on Daf 3a in Dapei Harif of Megillah as well. The issue being dealt with there is that we know R' Assi holds that 10 are needed for krias megillah. So the rishonim are bothered how come in this mishna of pores al shma we don't list krias megillah as something that needs 10 people (according to R' Assi)? It is especially difficult to say that this was left out since this list is in a Mishna that is in Meseches Megillah. Certainly Krias Megillah itself should make the list! It is difficult to say that the mishna is lav davka. The Ran there explains (following the shitah of the Milchamos there; see also Baal HaMaor) that the Mishna is only listing things that are Chovas Tzibbur. This means that if you have a tzibbur who are all still chayav to hear or recite one of the things in the mishna the chiyuv is chas on the tzibbur as a whole. When it comes to krias megillah it is not a chovas tzibbur. Rather, it is a chovas yachid (every yachid needs to hear the megillah) that should be done in front of 10 people due to pirsumei nissa. This is why Krias Megillah is not in the Mishna.

It comes out that according to the Ramban krias hatorah (which is also in the Mishna in Megillah) is a chovas yachid. This would mean that if one does not go to minyan on a Monday or Thursday the chiyuv to hear krias hatorah would never be chal on him. I heard, however, that Rav Chaim Soloveitchik was machmir for the opinion that krias hatorah is a chovas yachid. Therefore, he was very makpid to hear leining on Mondays and Thursdays - even if it meant jumping off trains (I don't know if they were moving).

Pores Al Shma

2008-04-06T19:41:00.000-07:00

The Mishna in Megillah on 23b discusses different things that require 10 people. The first of the list is called "pores al shma". There is a major machlokes rishonim as to what exactly this means. The Ran (in the dapei harif) has a there has a good summary of the different strains of thought in rishonim. Basically, according to Rashi's camp the issue is regarding someone who already davened b'yichidus and now wants to make up the stuff that he missed because he didn't daven b'tzibbur. He joins together with 10 people and they daven in an abridged form to make up Borchu, kaddish, and kedushah.

The Geonim have a different approach entirely. They say that we are referring to how one can be yotzei in birchas krias shma through shomeah k'oneh. The rules of shomeah k'oneh change depending on the tefillah. Most of the time one person can recite a bracha and the listener can be yotzei through shomeah k'oneh. However, sometimes it's not so simple. For example, by bentching the halacha is that in order to do shomeah k'oneh one needs to have three people in a mezuman. The mishna is teaching us that for birchas krias shma one needs ten people to be yotzei through shomeah k'oneh.

In the Chidushei HaRan there in Megillah (not the Ran in Dapei HaRif I quoted above) he says that the kedusha that we recite in the bracha of yotzer ohr in the morning is not a real davar shebikdusha. We are merely saying what the Malachim say to be mekadesh Hashem - but we are not really doing it like we do in the kedusha of chazaras hashatz. In the footnotes there I saw that this is not agreed upon by all rishonim. Some hold that this kedusha is a real davar shebikdusha.

I heard that this was the opinion of R' Chaim Soloveitchik (or at least he was choshesh for this opinion). He may have held that the responsive nature of this tefillah rendered it a davar shebikdusah (see here). He used to stand up when he got to this kedusha - just as we stand up when we recite any davar shebikdusha. [Not everyone has this minhag to stand by davar shebikdusah but we are assuming here that one does stand for davar shebikdusha.]

R' Yosha Ber Soloveitchik also used the logic of davar shebikdusha to explain the different minahagim by a mezuman of 10 people. We explained that previously here as well.

The Rishonim here on the inyan of Pores Al Shma all deal with a difficult Meseches Sofrim. Although our gemara clearly states that davar shebikdusha requires 10 people the Meseches Sofrim seems to disagree. Some explain that the Meseches Sofrim only means to tell you the number of people in the minyan who cannot have davened yet. Others say that the Meseches Sofrim is indeed arguing and requires less than 10 for a davar shebikdusha.

Shinuy HaTeva

2008-04-03T18:05:00.000-07:00

יב ואין להוסיף על טריפות אלו, כלל: שכל שיארע לבהמה או לחיה או לעוף חוץ מאלו שמנו חכמי הדורות הראשונים, והסכימו עליהן בתי דיני ישראל--אפשר שתחיה. ואפילו נודע לנו מדרך הרפואה, שאין סופה לחיות. [יג] וכן אלו שמנו ואמרו שהן טריפה--אף על פי שייראה בדרכי הרפואה שבידינו שמקצתן אינן ממיתין, ואפשר שתחיה מהן: אין לך אלא מה שמנו חכמים, שנאמר על פי התורה אשר יורוך

Here the Rambam is paskening that whatever treifos are listed in the Gemara we cannot add nor subtract from them. Even if we find something else that renders an animal physically a treifah we cannot add to the list. We should assume that the animal may be able to live for 12 months. Likewise, if we find that one of the treifos in the list in the gemara no longer renders an animal physically a treifah - it still has the halachic status of a treifah.

Why is this?

In an article in The Journal of Halacha and Contemporary Society (Volume 31 - Shinuy HaTevah) Rabbi Dovid Cohen brings a some opinions from the poskim on this issue. The Chazon Ish (Y.D. 5:3 and E.H. 27:3) says that it is basically like a gezairas hakasuv that only these treifos (that existed at the time of the gemara) should count as treifos l'doros. R' Moshe Feinstein (E.H. 2:3:2) says a similar idea but he adds to it. He asks why does the gemara need to say that the list of treifos are a halacha l'moshe misinai? He answers that it is specifically to tell you that this is the final list.

Based on his reasoning, R' Moshe had an interesting psak regarding the issur of petsua daka. He ruled that a certain procedure that was assured in the gemara (because it made one a petsua daka according to the gemara) is permitted nowadays because nowadays it doesn't render one a petsua daka. By petsua daka there is no halacha l'moshe misinai like there is by treifos that would say we follow the actual list in the gemara. Rather, by petsua daka we follow the actual metsius of what the procedure is determined to cause nowadays.

Interestingly, the Rashba (1:98) is cited by Rabbi Cohen as saying the following on the issue:

[The Rashba] quotes various instances where the Gemara recounts stories of people who claimed that they experienced circumstances which contradicted the rules of the Gemara. The Rabbis were persistent that the people were obviously lying about their stories and, in each ci:l.se, the people finally admitted that they had told the stories inaccurately. The Rashba concludes, therefore, that a statement made by the Gemara must always be considered true. Their teachings are all based on the teachings of Moshe Rabbenu; we are prepared to say even that one thousand people are lying rather than reject one word of the Gemara.

So according to the Rashba even if we think the metzius is different we should just assume we are wrong.

Rav Moshe however says that even the Rashba would have to admit in certain instances that the metzius is different if it is strikingly apparent. Rabbi Cohen cites some Gemaras that could fit into the "strikingly apparent" category:

1. Rambam Perush HaMishnayos Becohoros 8:2 - If a woman delivers a baby by C-section she won't be able to have another one.

2. Niddah 31a - Boys are born face down and girls face up.

*As mentioned, the material in this piece was taken from the much longer article in the Journal of Halacha. For practical halachic rulings consult a halachic expert.

Do Angels Understand Aramaic? Part 2

2008-04-01T06:54:00.000-07:00

In this previous post we quoted the gemara that says that one should not pray in aramaic because angels don't understand aramaic. We asked from R' Ovadiah Yosef - shouldn't one direct his tefillos straight to Hashem?

R' Ovadiah Yosef answered that b'tzibbur, indeed, all tefillos are directed only to Hashem. However, b'yichidus one could direct the tefillos to angels to act as mediators to Hashem. He proves this from the fact that we daven at kivrei avos. The idea is, again, that we don't mind having the tzaddikim "deliver" the tefillos to Hashem.

We mentioned that the Briskers are very machmir not to ever ask the angels to act as mediators to Hashem. For this reason they do not say Malachei Rachamim. The question is what do they do with the gemara that one shouldn't pray in Aramaic because the angels don't understand aramiac? In the comments Josh Waxman (homepage) suggests the following answer for that gemara:

Of course one only addresses Hashem in tefillot. But, completely without being asked to, the angels "pick up" those prayers and deliver them and present them before Hashem. And one should not daven to angels, even as "mediators."If in Aramaic, the angels would not recognize the words as prayers, or else would not be able to repeat them, or some such idea.

So one can never ask other beings to deliver the prayers to Hashem - thus explaining the Brisker chumrah. However, on some metaphysical level the angels "pick up" the prayers and deliver them to Hashem anyway (however exactly that works and whatever that means). If you want to see more you can read the comments to that post here.

Eating Matzah on Erev Pesach

2008-03-31T17:34:00.000-07:00

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.

Do Angels Know Aramaic?

2008-03-30T16:53:00.000-07:00

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.

Mitzvos Tzrichos Kavana

2008-03-27T19:36:00.000-07:00

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

2008-03-27T18:58:00.000-07:00

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

What Defines a Beracha?

2008-03-26T18:43:00.000-07:00

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.

Hasagas Gvul - Yored L'soch Umnaso Shel Chaveiro

2008-03-24T19:07:00.000-07:00

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 decades...to 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.

Kol Yisrael Arevim - Im Yatza Motzee

2008-03-22T21:52:00.000-07:00

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.

Women Reading Megillah For Men

2008-03-19T18:37:00.000-07:00

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.

Mitzvas Yishuv Eretz Yisrael

2008-03-13T09:27:00.000-07:00

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.

Hadlakah/Hanacha Oseh Mitzveh

2008-03-12T18:12:00.000-07:00

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.

Shaos Zmaniyos... or not?

2008-03-02T09:25:00.001-08:00

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.

Sources for the Prohibition of Listening to Music

2008-02-29T14:44:00.000-08:00

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
kindnesses.

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?

2008-02-29T11:31:00.000-08:00

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.

I Apologize...

2008-02-27T21:57:00.000-08:00

... for an apparently misleading post. In this post I discussed the bekius vs. iyun issue. I wrote that some "classic" reasons given for learning iyun in Yeshiva is to #1 make it more geshmak and #2 to allow Rebbe/Talmid relationships to develop. Now, I did not mean to say that these are the only reasons to learn bi'iyun (which obviously would be an attack on the iyun learning which is done in most yeshivos). Rather, I was writing that these are some reasons that I have heard (from people who are generally displeased with the heavy focus that yeshivos place on iyun). I disagree and believe that there are much more valuable reasons to learn bi'iyun. Essentially I agree with Nephtuli's comment:

The Briskers believe that the purpose of Torah learning is to analyze the concepts embedded in the text. So while Bekius might have instrumental value, B'Iyun is the optimal fulfillment of Talmud Torah.

I supported Nephtuli's contention further in this post where I brought from R' Soloveitchik that learning the "theoretical halacha" is the ultimate form of limud haTorah.

I also brought four paths to arriving at halacha l'maaseh in this post. The first two paths require learning the sugyas hagemara bi'iyun and coming to one's own conclusions. I believe that this is in a sense the "ultimate" form of limud halacha l'maaseh, because it forces one to determine his own halachic opinion on a subject, as opposed to merely learning the opinions of others. Thus, in both a halacha l'maaseh sense and in a purely theoretical sense, I am arguing in favor of the standard derech in yeshivos of learning Gemara bi'iyun.

Zachin L'Adam Shelo B'fanav

2008-02-21T18:03:00.000-08:00

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.

Practical Aspects of Conceptual Learning

2008-02-14T15:41:00.000-08:00

We previously mentioned Rav Soloveitchik's opinion that the ultimate form of Limud HaTorah is for the theoretical halacha, as opposed to the practical halacha. It should be noted, however, that even theoretical learning can have a practical aspect to it. In order to explain this let us use the well known machlokes rishonim as to whether 600,000 people are needed to declare an area Reshus HaRabbim (mentioned here). Rashi and Tosafos are lenient and require 600,000 people whereas the Rambam says the area is Reshus HaRabbim even without this condition.

How do we decide the practical halacha in this case? There are several ways, to my understanding, that one can approach this.

Approach #1: One can learn the sugyos and determine that one of the two sides is more compelling then the other and declare the halacha like that shitah. If one is certain that one side is correct, l'chorah he can pasken like that side, at least for himself.

Approach #2: One can learn the sugyos and determine that it is absolutely inconclusive which side is correct. In that case, he can treat this issue as any other safek halacha is treated.

Approach #3: One can count up the rishonim on each side and follow the majority.

Approach #4: One can determine what the practice has been over the generations and decide the halacha based on what the minhag has been.

As you can see two of the approaches rely on learning the sugyas bi'iyun whereas the other two approaches rely on learning the "basics" of the sugya and then determining the halacha l'maaseh based on either rov or the prevailing minhag. My understanding is that Rav Chaim Brisker (at least for himself) determined the halacha based on approaches one and two. His conceptual grasp of the Talmud was so great that he would usually come to the conclusion of either Approaches 1 or 2 rendering it unnecessary to pursue Approaches 3 and 4. Thus, conceptual learning can play a great role even in halacha l'maaseh.

Birchas HaMitzvos for Women by Mitzvas Aseh SheHazman Gerama

2008-02-14T15:18:00.000-08:00

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?

The Ultimate Form of Limud HaTorah

2008-02-12T19:57:00.000-08:00

In response to my last post on Bekius vs. Iyun, Nephtuli comments as follows:

The Briskers believe that the purpose of Torah learning is to analyze the concepts embedded in the text. So while Bekius might have instrumental value, B'Iyun is the optimal fulfillment of Talmud Torah.

I responded by asking him for a source to this argument. I do believe however that much of Rav Soloveitchik's Halachic Man makes this argument as well. Almost the entire Section 6 deals with this issue. Here is a relevant quote from page 23:

And when many halakhic concepts do not correspond with the phenomena of the real world, halakhic man is not at all distressed. His deepest desire is not the realization of the Halakhah but rather the ideal construction which was given to him from Sinai, and this ideal construction exists forever. "There never was an idolatrous city and never will be. For what purpose, then, was its law written? Expound it and receive a reward! ..." (Sanhedrin 71a). The foundation of foundations and the pillar of halakhic thought is not the practical ruling but the determination of the theoretical Halakhah. Therefore many of the Halakhic men avoided and still avoid serving in Rabbinical posts... The theoretical Halakhah, not the practical decision, the ideal creation, not the empirical one, represent the longing of halakhic man.

In many ways, I believe the Iyun vs. Bekius argument centers around the argument between those who favor theoritical halacha and those who favor the practical. There is much more to discuss on this topic which I hope to get to in the future, iy"h.

Bekius vs. Iyun

2008-02-12T09:12:00.000-08:00

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.

Earning a Living - Part 2, Minyan Hamitzvos

2008-02-10T21:45:00.000-08:00

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.

Stealing Karka and Avadim

2008-02-06T16:28:00.000-08:00

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.

Birchas HaMitzvos

2008-01-31T20:48:00.000-08:00

This post has been updated - Feb. 3, 2008

There is a general question as to why some mitzvos get a bracha and some don't. The Rashba in his Shaalos and Teshuvos (Sheilah 18) and the Gra (OC 8:1) in Shulchan Aruch deal with this question. Here are some of the rules they set down:

1. If a mitzvah is done without a maaseh there is no bracha. For example, canceling loans in the shemittah year takes no maaseh, so there is no bracha.

2. If a mitzvah is dependent on others, there is no bracha. For example, the mitzvah of tzedakah is dependent on the poor person accepting the money. The same is true for the mitzvah of lending money.

3. If it is possible to uproot the mitzvah through mechilah, there is no bracha. For example, a parent can be mochel on the mitzvah of kibbud, so the mitzvah of honoring carries no bracha. This condition is very similar to the above condition that the mitzvah is dependent on others. Other mitzvos that may fall under these categories are bikkur cholim, havaas shalom, and nichum aveilim - all of which carry no bracha because there accomplishment depends on the acceptance of the recipient.

4. A mitzvah that only takes place due to an aveirah, carries no bracha. For example, returning stolen property is a mitzvah. However, it only takes place after something has been stolen, which is an aveirah, so there is no bracha. The same would be true for returning interest. Also, divorce, although a mitzvah, has some element of aveirah mixed into it, so there is no bracha. Another example is misas beis din, which we don't make a bracha on because Hashem has rachmanus on His creations.

5. A mitzvah like matnos kehunah gets no bracha because you are really not giving anything to the kohen. We say the kohen is zocheh from shulchan gavoah. However, by pidyon haben there is a bracha because there the bracha is on the hafrasha, not the nesinah.

6. Mitzvos like yibum and chalitza do not get a bracha because they are not the ultimate purpose of the mitzvah. Rather, the ultimate purpose is the piryah v'ribya.

Tnai Batel U'Maaseh Kayam

2008-01-28T20:24:00.000-08:00

There is a general rule that if someone does a maaseh with a tnai and doesn't formulate the tnai properly, we say that the tnai is batel and the maaseh is kayam. For example, if one performs a kiddushin under some condition, but doesn't formulate the condition with the proper mishpatei hatnaim (no kefel hatnai etc.), we say the tnai disappears and the kiddushin is chal. The question is, why should this be? If the husband did not want the kiddushin to take effect except under certain circumstances, shouldn't we say that there was no proper daas, and the kiddushin doesn't take effect.

The Shut HaRash (35:9 and 46) says that the entire concept of tnai is a chiddush. The idea that someone can make the challos of a maaseh conditional would never have existed if not for the fact that the torah allowed for it. Therefore, if the tnai is made improperly, the chiddush hasn't been executed, and m'maila the maaseh is chal.

However, the Rashba in Gittin 35b leaves this issue as a question.

I heard an explanation of this as follows (see as well Chazon Ish 50 and 53 in Gittin):

The Rosh holds that before the torah came along one could never have made a tnai in any maaseh. For example, can one imagine a tnai in a maaseh shechita. Likewise, a tnai in any maaseh makes no sense. A maaseh kiddushin should automatically take effect just like a maaseh shechitah.

However, the torah was mechadesh, that in certain areas of halacha this is not the case. One can make a tnai and prevent a maaseh kiddushin from being chal. Thus, if the tnai isn't made properly, the maaseh automatically results in its challos.

However, the Rashba disagrees. He holds that shechita and kiddushin are inherently different. By kiddushin, it isn't so much the maaseh kiddushin, but the daas for kiddushin that creates the challos. Thus, even though one can't create a tnai to stop a challos of shechitah, this isn't true for a maaseh kiddushin, or other maasim where the daas creates the challos. Thus, the chiddush of the torah merely was that if you make a tnai, this is how you should do it. The Rashba was, therefore, left with a difficulty. If the tnai is made improperly, why does that mean the maaseh is automatically chal?

A Mute as a Witness

2008-01-28T19:34:00.000-08:00

Tosafos in Gittin 5a mentions that a mute (an ilaim) cannot write down b'fanei nichtav u'b'fanei nichtam. The Ran (3a in dapei harif) argues that there is no problem, because b'fanei nichtav is no better than eidus isha.

The difficulty in the whole discussion comes from a Teshuvas Harivash (382 & 413) that says that there is no psul of mipi ksavam at all when it comes to kiyum shtaros. Yet, even the Rivash does not allow a mute to provide the evidence of b'fanei nichtav!

One way to answer this question is to say like the Ktzos HaChoshen in Siman 46:19 that a mute is actually pasul l'eidus due to mipi ksavam as a psul haguf. In other words, it's not merely that eidus must be spoken, but eidus must be provided by one who can speak. However, the ktzos himself leaves off with a question that, in general, psulei haguf are not a problem by the eidus of b'fanei nichtav. So, why should a mute be pasul?

Perhaps we can distinguish between the nature of the psul haguf. If the issue is one of neemanus (whether we trust the eid), we waive our suspicions when it comes to b'fanei nichtav. However, a mute is pasul because he is not "fit for stating" his eidus. This psul is not based in neemanus, but in his communication of eidus. This type of psul we have no reason to waive by b'fanei nichtav.

Defining Reshus HaRabbim D' Orayssa

2008-01-21T16:31:00.000-08:00

[Note: This piece continues the theme of the last post regarding eruvin. For more on this topic see the article by R' Hershel Schachter in The Journal of Halacha and Contemporary Society. Many of the ideas in this piece are lifted from that article.]

In order to be defined as a Reshus HaRabbim D’Orayssa there are conditions that must be met. The more conditions that there are, the harder it will be for us to declare an area as a reshus harabbim d’orayssa and the easier it will be for us to build an eruv in that area. The following is a list of conditions needed to declare an area a reshus harabbim d’orayssa. Some of the conditions are subject to dispute:

1. The area should be owned by the public (Eruvin 59a). For example, even if Rockefeller Center met all the criteria of being a reshus harabbim it still would not be one because it is not public owned.

2. The area should not have a ceiling (OC 345:7).

3. The streets should be more than 16 amos wide (OC 345:7).

4. The area should be accessible at all times (Eruvin 6b).

5. The area should have 600,000 people traversing it. This condition is a dispute between rishonim (see Eruvin 59a). It has generally been assumed for generations that we follow the lenient opinion of Rashi and Tosafos that we require the 600,000 in order to declare an area a Reshus HaRabbim. However, some acharonim (see Mishkanos Yaakov OC 120) question this and prefer to follow the Rambam. They contend that the majority of rishonim are actually on the Rambam's side. The acharonim also argue about how exactly to calculate the 600,000.

6. The street should be mefulash through the entire city. This means it runs straight through the city from end to end. R' Shlomo Kahana reportedly (quoted by R' Kasher in Noam) used this leniency to allow the eruv in Warsaw to remain valid. He argued that there was no street that ran straight through the city from end to end with no curves. R' Moshe Feinstein (OC 140) questions the legitimacy of this leniency.

Here are some factors to consider l'chumra when trying to make an eruv:

1. We hold in general that all highways (derachim me’ir l’ir - see Magen Avraham 345:5) are automatic reshuyos harabbim. This means that even if the highway doesn't fulfill all the conditions, the very fact that it is a highway makes it a reshus harabbim.

2. Rav Moshe (Volume 1 of Iggros Moshe, page 240) makes an argument that all central metropolis areas are automatic reshuyos harabbim. The argument is based on a Rabbeinu Efraim that (based on R' Moshe's understanding) says that Yerushalayim did not have an eruv even though it wasn't a reshus harabbim according to the conditions set out above (because it's doors were locked at night). Why not? Because it was the central Metropolis of the area, where everyone gathered. Based on this R' Moshe argues that Manhattan cannot have an eruv.

Here are some additonal factors l’kula:

Aruch HaShulchan (OC 345:19-24) – In order to be a reshus harabbim the street must be the main street of the city. Nowadays all streets cancel each other out and there is no main street. (See Divrei Malkiel Vol. 3 page 267 where R' Tannenbaum opposes using this leniency.)

Chazon Ish (Hilchos Eruvin Siman 43, see especially Os 7. See also Orchos Chaim Vol. 1 page 139 who quotes earlier poskim who agree with the Chazon Ish.) – Nowadays our buildings and houses actually enclose the streets enough to render the entire city into a reshus hayachid. The Chazon Ish demonstates this with diagrams of how our cities are generally constructed. He also relies on some ideas that others question (see Or HaMizrach Nissan 5741).

Tzuras HaPesach

2008-01-21T12:57:00.000-08:00

The building of most eruvin in major cities nowadays relies on the concept of tzuras hapesach (see Eruvin 11b). A tzuras hapesach is basically a doorway frame (two standing up poles and a pole across the top). The first issue regarding tzuras hapesach is what exactly does a tzuras hapesach have the ability to do? The Mishna Berurah (OC 362:10) brings the Pri Megadim who holds that a tzuras hapesach only works on a d'rabbanan level. Meaning, if an area is a reshus harabbim on a d'orayssa level, a tzuras hapesach cannot enclose the area and make it into a reshus hayachid. Only in an area like a karmelis can a tzuras hapesach work to allow carrying because the tzuras hapesach acts as a heker. This would limit the use of tzuras hapesach to areas that are not reshuyos harabbim d'orayssa.

The Chazon Ish (OC 70:13) disputes the Pri Megadim and holds that tzuras hapesach works to enclose an area even on a d'orayssa level. He bases this on fact that the gemara (Eruvin 110) says that one can use a tzuras hapesach to separate a field and thus avoid problems of kilayim. This is a d'orayssa halacha. Thus, the Chazon Ish proves that tzuras hapesach works on a d'orayssa level.

Others (see Minchas Yisrael Eruvin 110) dispute the Chazon Ish and say that tzuras hapesach by kilayim only works to be mafsik - to separate, but not to makif - to enclose an area. For example see the Chiddushim of Rav Chaim on the Rambam Shabbos 16:16 where Rav Chaim explains that a tzuras hapesach has a "din mechitza", but is not a real mechitza. He explains that if all you need is a mechitzos to surround an area or mechitzos to separate one area from another, so tzuras hapesach works. However, if you need a certain shiur of mechitzos (like 3 walls for reshus hayachid or a tefach wall for sukkah) so tzuras hapesach will not be effective. The psak in general seems to follow the Chazon Ish that tzuras hapesach could work to enclose even a reshus harabim d'orayssa, if not for a different problem which we will now explain.

The problem is that there is another rule of "asi rabim um'vatli mechitza" (see Eruvin 22a). This rule says that if the rabbim pass through a mechitza, they can be mevatel the entire shem mechitza. This could seemingly mess up our entire use of tzuras hapesach for eruvin. However, for this we rely on a Maharam M'rotenberg (see Mordechai Eruvin Perek HaDar Siman 510) who paskens that we don't say asu rabbim u'mevatli mechitza by areas that are not reshus harabbim d'orayssa. It is for this reason that we first must define an area as a karmelis, before deciding that we can establish an eruv in that area.

[For more on this topic see an article by R' Hershel Schachter in The Journal of Halacha and Contemporary Society. Much of the information in this piece was taken from that article. Also, note that the term "Eruv" in this article refers to the building of the tzuras hapesach. This is how the term is used in Yiddish, even though in the gemara it refers to the matzos that are later set aside.]

Kinyan HaGuf L'zman

2008-01-10T19:04:00.000-08:00

The Ktzos HaChoshen in Simanim 241:4, 257:3, 346:5 discusses the issue of "kinyan haguf l'zman". We generally know of two types of kinyanim on an object. First, a person can own something straightaway. This is a kinyan haguf. It implies full ownership of the object. The second type of ownership is what we call a kinyan peiros. A kinyan peiros means that you don't actually own the object, but you have the right to use it. For example, a person might lease a field in order to work it and keep the produce. He doesn't actually own the field, he has only purchased the right to use the field.

The Ktzos (241:4) discusses the halacha that one is allowed to be yotzei the mitzvah of lulav and esrog with a matanah al m'nas l'hachzir. This halacha states that if someone gives me his esrog on condition that I return it to him after, it is considered good enough ownership as far as being yotzei the mitzvah. The Ktzos quotes a Ritva (1st perek of kiddushin) and a Rosh (in Perek Lulav HaGazul) who both say that the only way that this can work is if the person takes that esrog to fulfill the mitzvah, and is then "re-makneh" the esrog back to the original owner. However, if the original owner says, "I am giving you this esrog and it will automatically go back to me when you finish", both the ritva and the rosh say that this is basically a borrowed esrog and would not be a sufficient kinyan to be yotzei the mitzvah. (We are speaking now about the first day of sukkos when a borrowed esrog is not good.)

The Ktzos disputes these rishonim based on a gemara in Baba Basra 137a that discusses giving an esrog to someone "v'acharecha liploni". The gemara implies that even though the esrog will automatically leave the first guys reshus and go to the next guys, it is still a good enough kinyan to be yotzei.

Based on this the Ktzos is mechadesh the idea of kinyan haguf lizman. He says it is possible to have a kinyan for only a temporary time period and yet the kinyan is still considered to be full ownership. Even though it seems like only a kinyan peiros because you have it only temporarily, halachically that is not the case.

Update 1/14/2008: After looking into the Ktzos a little more I have discovered a few things. First, the Rashbam in the gemara in 137a seems to learn that one can be yotzei daled minim even with a kinyan peiros in the case of acharecha l'ploni. The reason is that if the entire purpose of the kinyan is only to be yotzei daled minim, even kinyan peiros is sufficient. However, the Rashba there is mashma somewhat like the ktzos that the nature of the kinyan in that case is actually more than a regular kinyan peiros, along the lines of the ktzos' chiddush of kinyan haguf l'zman. There is also a Kobetz Shiurim on the sugya that gets into these issues. I also saw brought from the Chazon Ish (Even HaEzer 74:1) that he disagreed with the Ktzos' chiddush of kinyan haguf l'zman, and held that, by defintion, if you only own something temporarily it is a kinyan peiros.

This of course is the pashtus, as this is the definition of kinyan peiros in the first place. Inventing a new concept of kinyan haguf l'zman is a big chiddush in that it undoes what are the already more logical categorizations of kinyanim that already exist.

SDSY Needs Your Help!

2008-01-09T16:15:00.001-08:00

Don't worry... I will get back to the lomdus. However, I just wanted to post one more thing about my new website. The actual site, as I mentioned in my last post, will only be posting the basic gemara. However, I think it would be greatly beneficial if people would post their hearos in the comments section. Even the smallest sugya has way too much material for one person to write up. Torah is endless! But, if each reader adds his hearos and iyun, the site can become a great resource for the entire shas... not just bekius, but even b'iyun! Think of it as a "wikipedia of shas". We can really use the power of the internet l'hagdil torah u'lhaadirah! So I want to encourage anyone reading this to consider contributing to this new site. Although most blogs are greatly enhanced by the comments section, I think this one is particularly geared for that kind of enhancement. So, please enjoy the new blog and I hope to see you in the comments section as a contributor.

eLamdan's Great New Idea

2008-01-08T18:50:00.000-08:00

Daf Yomi is great. It really is. But there are some downsides. First off, it's just too much material for one day. There is no way I can really retain all the information in a daf if I go over it in one day and then move on. Maybe some people can, but not me. Also, it's every day - no let up. So, if you miss just a bit you can find yourself totally out of it. And I'm not speaking from total lack of experience. I did daf yomi for a while. I got something out of it, but not that much.

What about Amud Yomi?? Still not really for me. You are still pressuring yourself with a pace. And it takes like 15 years! And no one else in the world is even on pace with you! The motivation to keep going is really not there.

So an idea just popped into my head. I actually think it's a great idea. I like to call it (drum roll please):

Some-of-the-Daf Somewhat Yomi

That's right... it's eLamdan's new blog. We are gonna finish Shas Bavli! When? I don't know. At the pace we've set up, maybe never. But, maybe sometime. We'll see. Here is a Q & A on my new blog:

Q: What exactly are you going to be posting?

A: I'm going to start from Berachos 2a and move from there. I'll just write up the basic gemara into English.

Q: How much of the gemara will you post a day?

A: I have no idea. However much I feel like. Perutah Perutah mitstaref. That's why I'm calling it "Some-of-the-Daf".

Q: Are you gonna do any iyun?

A: No, of course not! That's what my other blog Talking in Learning is for. This blog is just gonna be the basic gemara.

Q: Who will benefit from this blog?

A: Many people! If you happen to be on the Internet you can just read this blog and learn a little bit of gemara. It's going to be an entirely "digestible" amount. If you are a regular reader you may even finish shas bavli perhaps-maybe-eventually!

Q: How often will you post? Every day?

A: Of course not! Did you even read the title!? It's called "somewhat-yomi". The title speaks for itself.

Q: Is your program a substitute for Daf-Yomi?

A: No, of course not! If you want to do Daf Yomi, by all means go ahead! This program is a separate and independent program that can be a great way to gain a familiarity with Shas.

Q: Who is this program for?

A: Well this program can be for just about anyone! For example, if your job is by a computer all day, you can just log onto the site and learn a bit of gemara in some of your spare time. The amount covered a day will be a small, very digestible amount. Also, complicated sugyos will be broken down into their simplest element. And, best of all, it will be written in simple English, because that's really the only English that I know!

Q: What are some other benefits of this site?

A: Well, the site is entirely searchable. So, if you want to find out where in Shas something is, just type in what the sugya is talking about into English, and there is a chance you might actually find it.

Q: Do you have the time for this?

A: No! Not at all! As a matter of fact, I seem to be getting less and less free time every day! What? Do you think I'm retired already? How old do you think I am? But I'll try to do it anyway because it seems like such a good idea.

Basically, this site will be a great way for you to learn a bit of bekius every day. And if I actually have readers, it'll be a great motivation for me to keep posting. So please, enjoy my new website:

Some-of-the-Daf Somewhat Yomi.

Making One's Chometz Hefker

2008-01-07T19:30:00.000-08:00

Rashi on 4b in Pesachim d"h B'Bitul says that Bittul Chometz is learnt from a gezairas hakasuv of tashbisu. The Ktzos in Siman 273:1 asks, why could Rashi not learn like Tosafos that the bittul chometz works mitaam hefker?

The Ktzos uses a yesod that he uses in a number of other areas that perhaps hefker doesn't work as a "daas makneh", but rather mitaam neder. The idea is that one is not being makneh the item to hefker, but rather is making a neder that he no longer will be using the item. Thus, the Ktzos suggests that even if one were to make the chometz hefker, one would still transgress on baal yeraeh and bal yimatzei. Another place where the Ktzos discusses this yesod is in Siman 211:4.

Interestingly, the Ramban in the beginning of Meseches Pesachim suggests a possibility as well that hefker may not work to avoid the issur of baal yeraeh and baal yimatzei. Again, the same question arises, if the chometz is hefker (and thus not yours), why would you transgress the issur of owning it?

I once heard another answer to this question based on the words of Rav Soloveitchik. The gemara says that chometz is one of the items that isn't really in your reshus on Pesach, but the Torah places it into your reshus to make you transgress the issur (if you didn't properly do bittul or dispose of it). This is referred to in the gemara as "asaan hakasuv k'ilu hu birshuso". One possible explanation of this is that in dinei mamonos the torah places it into your reshus, causing you to transgress the issur. However, another way to explain is that despite the fact that the chometz isn't yours b'dinei mamonos, you still transgress as long as you were "rotzeh b'kiyumo" (you wanted it around) and you weren't "mechazer ulav l'sorfo" (you weren't actively trying to destroy it). This would then be another approach to answer the Ktzos' question. It's not that hefker doesn't remove the chometz from your possession. Rather, despite the fact that it does, it still may not work to remove the issur of baal yeraeh and baal yimatzei.

Dina D'Malchusa Dina

2008-01-04T10:33:00.000-08:00

The gemara in several places in shas (Gittin 10b, Baba Kama 113a, Baba Basra 54b, Nedarim 28a) has a statement of Shmuel that "Dina D'Malchusa Dina" - the law of the land is law. Generally, when the gemara refers to this halacha it is a reference to the fact that a government has the ability to tax it's citizens according to halacha. The Poskim do, however, expand this halacha to other areas besides taxation. Based on several sources, the halacha may be expanded to such areas as minting currency, keeping law and order, and even possibly to other areas like the validity of government shtaros. For a nice discussion of the many sources on this issue see Rabbi Hershel Schachter's article on Dina D'Malchusa Dina printed in the Journal of Halacha and Contemporary Society.

In terms of the lomdus behind Dina D'Malchusa Dina, there are various opinions as to what precisely is the source. The gemara in Sanhedrin 20b has another statement of Shmuel that "anything said in the Parshas HaMelech (in Sefer Shmuel), a melech is mutar in that". Basically, Shmuel warns the people of all the powers a king will have over them. According to this opinion in the gemara that parsha in navi is to be taken l'halacha, and a melech as actually permitted to do those things. Tosafos there in Sanhedrin says that this rule is only by a Jewish king over the land of Israel. However, others (see Meiri in Nedarim and the Gra in Choshen Mishpat 369) say that this applies to all governments. If so, the Parshas HaMelech would, in fact, be the source for dina d'malchusa dina.

The Dvar Avraham (1:1) in an essay on Dina D'Malchusa Dina proposes that Dina D'malchusa Dina really stems from the halacha of hefker beis din hefker. The sources for that din are explicit in the gemara in Gittin 36b.

The Ramban (brought in the Magid Mishneh Gezailah 5:13) says that dina d'malchusa dina only applies to old taxes, but not new ones the king imposes. R' Schachter explains that he must hold that dina d'malchusa dina is a hischayvus midaas, the people have knowingly been mechayev themselves in the tax. By new taxes there is no such hischayvus. The Rashbam in Baba Basra 54b also seems along these lines, that the source of the halacha is from the minhagei medinah.

The Ran in Nedarim writes that dina d'malchusa dina stems from the fact that the king can expel his people from his land. It's basically a tax of living in the country. Thus, the Ran writes his famous shitah, that since all Jews are entitled to live in Israel, there is no dina d'malchusa there.

Finally, there is the opinion of the Bais Shmuel that dina d'malchusa dina is only a din midrabbanan.

Mitzvos Laav Lehanos Nitnu

2008-01-03T21:04:00.000-08:00

Chaim B. has an interesting post about the concept of mitzvos laav lehanos nitnu. Basically, the issue being dealt with is as follows:

We find that by mitzvos d'oraysah, the Baal Hamaor (daf 7b in Dapei HaRif in Rosh HaShanah)says that mitzvos laav lehanos nitnu applies. This means that even if one is mudar hanaah from someone else, the neder wouldn't apply to mitzvos d'oraysah, because that is not considered hanaah. However, mitzvos d'rabbanan are considered hanaah, so the mudar hanaah would not be allowed to help the other guy to fulfill a mitzvah d'rabbanan.

The question here is that the whole thing is counter-intuitive. If I can't give someone hanaah, wouldn't helping someone fulfill a mitzvah d'oraysah be more hanaah than a mitzvah d'rabbanan? If I'm allowed to help him fulfill a d'oraysah, surely I should be allowed to help him fulfill a d'rabbanan.

Here is the answer that Chaim B. brings from R' Shimon Shkop:

We apply the principle of mitzvos lav l’henos nitnu to mitzvos d’oraysa because the act is inherently defined as a ma’aseh mitzvah. However, a mitzvah derabbanan is not inherently a ma’aseh mitzvah; its performance is just a means to accomplish the goal of obeying Chazal and not violating "lo tasur". Therefore, since the act itself is not a mitvah, the neder is chal.

So, basically, R' Shimon is explaining to us that a mitzvah d'rabbanan is not really an "inherent mitzvah".

Here is the answer Chaim B. quotes from R' Soloveitchik:

RYBS argues that where the Torah labels an act as a mitzvah, it cannot be excluded by a neder because it is by definition not an act of hana’ah. However, by dinim derabbanan, the act itself is not defined by the Torah as a ma’aseh mitzvah and therefore the hana’ah received is considered a direct benefit resulting from the performance.

It seems that the basic answer in both these approaches is that the idea of mitzvos laav lehanos nitnu is not a sevara that a mitzvah is not hanaah. If that were the case, so it should be a kal v'chomer - if a mitzvah d'oraysah's fulfillment is not hanaah, surely fulfilling a d'rabbanan is not.

Rather, the idea of mitzvos laav lehanos nitnu is that it is a din. The din is that if it has a shem mitzvah, so the hanaah is not considered hanaah (at least as far as the din of mudar hanaah).

Now, the way I understand RYBS is rather simply that a mitzvah d'rabbanan has no shem mitzvah on a d'oraysah level. This seems very reasonable. The shem mitzvah is only a shem mitzvah d'rabbanan. M'meilah, the mudar hanaah is assur in this case because on a d'orayssa level there is no shem mitzvah to cause the hanaah not to be considered hanaah.

R' Shimon addition to this seems a bit unnecessary. R' Shimon is adding that a mitzvah d'rabban is not a mitzvah inherently because it "is just a means to accomplish the goal of obeying Chazal and not violating "lo tasur". As if it really would be a maaseh mitvah if not for this philosophical reason behind mitzvos d'rabbanan. Why the need for a philosophical reason? Obviously a mitzvah d'rabbanan is not a maaseh mitzvah on a d'oraysah level. It's by definition. Any thoughts?

Eating a Kzayis in Bliah Achas

2008-01-03T17:22:00.000-08:00

The Mishnah Berurah (476:41) writes that l'chatchilah it is preferable to eat the k'zayis matzah on Pesach in one swallowing. I heard that the Chofetz Chaim himself was makpid on this halacha even on Sukkos, to eat the k'zayis of bread in the sukkah in one swallow.

Presumably, the idea is that anytime there is a mitzvah of achilah (achilah always being defined as a k'zayis) it is best to do the mitzvah all in one shot.

I heard a question asked on this: Why not say in all the Seudos of Shabbos that one should eat a k'zayis in one shot?

One possible approach may be to use the lomdus we discussed in our two previous posts. The mitzvah to eat the meals of shabbos is not really a mitzvah of a maaseh achilah per se. It is merely a mitvah of oneg shabbos, accomplished through eating. However, the mitzvah of eating matzah and perhaps eating in the Sukkah (acc. to some rishonim) is a mitzvah specifically of achilah. Therefore the Chofetz Chaim was makpid to eat, in those instances, in one bliah.

This is the suggestion I heard. Perhaps another explanation is that the gemara in Sukkah 27a has a gezairah shaveh between the chiyuv to eat matzah on the 15th of Nissan and the chiyuv to eat in the sukkah on the 15th of tishrei. Perhaps it was this equation that motivated to Chofetz Chaim to be machmir the same chumrah on both days.

Women's Obligation in Seudos Shabbos

2008-01-03T16:20:00.000-08:00

There is a machlokes amongst the rishonim as to why women are obligated in the seudos shabbos. Is it not a mitzvas aseh shehazman gerama? In the Sefer HaYashar of Rabbeinu Tam Chelek HaTeshuvos Siman 70:4, Rabbeinu Tam says the reason for their chiyuv is because "af hein hayu b'oso hanes" (they too experienced the miracle [i.e. of the manna]). The Ramban in Shabbos 117b argues that the reason is that in all "maaseh shabbos" men and women are equal. (See the Ran there in Meseches Shabbos who says, "kol sheyeshno b'shamor yeshno b'zachor d'shamor v'zachor b'dibbur echad neemru etc.)

Let us now pose the following question: are women obligated in the mitzvah of oneg shabbos? According to the Ramban, the answer appears to be yes, for men and women are equal in all maaseh shabbos. I heard the following approach in Rabbeinu Tam, however. Rabbeinu Tam, in fact, held that women are not obligated in the mitzvah of oneg shabbos. However, it is clear from the gemara in Pesachim 99b (mentioned in our previous post) that women are, nevertheless, obligated in the meals of shabbos. This is evident from the fact that the gemara had a gezairah on all people, men and women, not to eat on erev shabbos (in order to eat the meals in a preferable manner). Rabbeinu Tam therefore derived from this that the chiyuv of seudos shabbos cannot be part of the chiyuv of oneg shabbos. As we said in the previous post, the Yeraim (R' Eliezer Mimitz) seems to hold this way, that the chiyuv of seudos shabbos is not related to the chiyuv of oneg shabbos. The Yeraim was, in fact, a talmid of Rabbeinu Tam, and this could help explain his shittah.

However, the idea of saying that women are not obligated in oneg shabbos is not so simple because, of course we all know, that women light shabbos candles. That obligation is part of the inyan of kavod shabbos. It would seem logical that if women are obligated in kavod shabbos, they are obligated in oneg, as well.

Seudos Shabbos and Oneg Shabbos

2008-01-02T18:27:00.000-08:00

In the previous post we mentioned the Mishna in Pesachim that one should not eat on Erev Pesach. We quoted the Rashbam who explained that the gezairah is part of an inyan of hiddur mitzvah that one should eat the matzah with an appetite. The gemara there brings the opinion of R' Yehuda that this halacha is even true by erev shabbos and erev yom tov (that one should not eat then either).

I heard an interesting exposition of three ways to learn the gemara. The pashtus of the gemara would be to say that the din of not eating on erev pesach and not eating on erev shabbos/yom tov is all the same halacha. However, the Rashbam doesn't say that. Instead of discussing hiddur mitzvah by shabbos/yom tov like he did by Pesach, the Rashbam says that the inyan is one of chavivus. In order that the kiddush and the seudah should be chaviv, one shouldn't eat before them. Why does the Rashbam steer away from the idea of hiddur mitzvah that he proposed by Pesach.

The idea may be that whereas by Pesach there is a maaseh mitzvah to eat matzah. By Shabbos and Yom Tov there is no maaseh mitzvah of eating. Rather, the whole concept of the seudah is an inyan of oneg shabbos. If so, it is the person's individual pleasure that is important, not the specific performance of a maaseh mitzvah of achilah. Therefore, the Rashbam turns to chavivus when discussing Shabbos and Yom Tov.

The idea that the seudos are inyanim of oneg shabbos is clear from the Rambam in Hilchos Shabbos 30:9. The Rambam in Chometz U'Matzeh 6:12 is also clear that the idea not to eat on erev pesach is because of chavivus (against the Rashbam). It could be that the Rambam understood this way because he wanted to learn the gemara k'pshuto, that the din by Shabbos/Yom Tov and the din by Pesach is all one din.

Finally, we can present a possible third shitah as the shitah of the Yeraim. The Yeraim in Siman 92 discusses the mitzvah of the seudos shabbos. In Siman 412 he brings the mitzvah of oneg shabbos. The implication is that they are two separate mitzvos (against the Rambam). Therefore, the Yeraim may hold that by both Pesach and Shabbos and Yom Tov the halacha is a halacha in hiddur mitzvah, as the halacha to eat in both situations is a formalized maaseh mitzvah. The Yeraim may even derive his halacha from this sugya in Pesachim. Once the sugya implied that Pesach and Shabbos/Yom Tov is one, it became clear that the mitzvah to eat on Shabbos is independent of Oneg Shabbos.

Zeh Keli V'Anveihu in the Cheftza or the Maaseh??

2008-01-02T18:14:00.000-08:00

The first mishna in arvei pesachim 99b says that near mincha time a person shouldn't eat anything on erev pesach. The Rashbam explains that the idea behind this prohibition is that we want the matza that night to be eaten b'teavon - with appetite. The Rashbam adds that this is "mishum hiddur mitvah". I once heard someone point out the following interesting point on this Rashbam. Generally speaking, hiddur mitzvah (learnt from the pasuk of zeh keli v'anvehu) is reserved for cheftza shel mitzvah. For example, a person should have tallis naeh (a nice tallis), tefillin naeh (nice tefillin) etc. This is the way the din is brought in the gemara. Would we say that this din of hiddur mitzvah applies even to the maaseh mitzvah? Is there a din of hiddur mitzvah even in the performance of the mitzvah?

From this Rashbam it seems that, yes, the din of hiddur mitzvah applies even to the performance of a mitzvah. An even further chiddush you see from this Rashbam is that the chachamim have the power to make a gezairah that "forces" people to do hiddur mitzvah. This is certainly a strange idea that requires explanation. Anybody?

JB

2008-01-02T17:00:00.000-08:00

I was "on the road" recently, and I found myself visiting a Yeshiva High School. I was in the hallway browsing at some stuff on a bulletin board, when, suddenly, to my left one of the classroom doors opens and the class exits to "go to the Bais Midrash". Amongst the crowd of seder-goers, a talmid came out, followed by the Rebbi, and they were having a conversation... and I overheard... and here it is:

Rebbi: His name was Rav Yosha Ber, that's why it's JB, Yosha Ber, ya' understand...
Talmid: And why is he so... what's the big deal about him that everyone is against??
Rebbi: 'Cuz his hashkafos were not...

That was the conversation.

Now, I don't know how often the nickname "J.B." is still used for Rav Soloveitchik. I don't hear it that often, but I've had to "correct" a couple of people in the past. When I corrected these people, they really had no idea it was wrong. And I don't even think they were faking ignorance! I guess they were educated from day one to call him that, and they never questioned it.

Personally, I didn't experience too much of this when I was growing up. But, here and there, I would hear stuff like this about Rav Soloveitchik. Usually it just made me more curious to find out what he had to say! Basically, this type of approach totally backfired with me.

Eventually I became exposed to “the torah" of Rav Soloveitchik. It was some of the best lomdus I had ever heard! So, even though at first, when I heard this Rebbi talking to his talmid, I thought, “What a shame, the talmid will now lose out on so much good lomdus!” In the end I changed my mind and said to myself, “Much of the time this approach backfires… so maybe good lomdus will prevail after all!”

Chatzi Hallel

2007-12-27T14:52:00.000-08:00

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

Shitas HaRambam: No bracha at all on chatzi hallel.

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

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

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

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

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

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

Al Hanissim in Al Hamichya Part 4

2007-12-26T08:05:00.001-08:00

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

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

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

Eidi Mesirah/Chasima Karti 2

2007-12-25T11:38:00.000-08:00

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

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

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

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

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

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

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

Zmanim - Part 2

2007-12-24T05:22:00.000-08:00

In this previous post we referenced the issue of zmanim in halacha. We mentioned the concept of shaos zmaniyos. Of course shaos zmaniyos refer to the idea that the amount of minutes in an hour of the day is dependent on how long the day is. So, in the winter and hour has less minutes than in the summer.

We also mentioned a statement that I have heard made by many people that, "in the times of the talmud they did not cheshbon time the way we do. They used shaos zmaniyos". This is just a very confusing way to phrase things and leads to all types of silly questions (like the one I asked in that previous post).

I find that a better way to think about zmanim is not in terms of hours and minutes, but rather in terms of fractions. For example, there are a number of opinions as to how to figure out when tzeis hakochavim begins. Famous is the shitah of Rabbeinu Tam of 72 minutes.

It's better to think of the shitah of Rabbeinu Tam not as 72 minutes, but rather is 1/10 of the day. In a "perfect" twelve hour day there are 720 minutes. Thus, 1/10 of that comes to 72 minutes. According to Rabbeinu Tam, we then have to ask whether to calculate 1/10 of the actual day that we are holding in (and thus say that in the winter it's less than 72 minutes and in the summer more)? Or, do we always calculate the 1/10th of the day based on the perfect day (and thus always go with 72 minutes). This is an issue dealt with by achronim.

I heard that Rav Aharon Soloveichik held that tzeis is 1/8 of the day after shkia. 1/8 of 720 comes to ninety, thus accounting for the famous shitah of waiting 90 minutes.

Finally, Rav Chaim Soloveitchik is reported as having held of 1/6 of the day (referred to as "the zekstel")! 1/6 of 720 comes to a whopping 120 minutes! That is on a perfect day. I heard that in the summer Rav Chaim was machmir for the stringent shitah that one should cheshbon the day as it is that day, which in the summer is significantly longer than 720 minutes. This means that Rav Chaim waited more than 2 hours after shkiah before he held it was tzeis hakochavim in the summertime.

We should note that others don't follow an absolute fraction of the day, but make the cheshbon based on the location. Nightfall arrives at different intervals after shkiah depending on where on earth you find yourself.

Perhaps in a future post we will go back to the sources to show where all these shitos come from.

The Uniqueness of Shtarei Erusin

2007-12-23T10:45:00.000-08:00

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

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

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

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

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

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

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

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

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

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

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

Palginan Diburah

2007-12-21T11:55:00.000-08:00

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

The Sugyos:

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

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

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

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

Psak Halacha:

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

The Issues:

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

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

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

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

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

וכן כל כיוצא בזה

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

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

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

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

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

Conversations on Zmanim in Halacha

2007-12-21T06:31:00.000-08:00

A long time ago when I was younger I attended a shiur on zmanim in halacha. The shiur was given by a prominent Rabbi to a small group of young bochurim (me being one of them). During the shiur the Rabbi and I had more or less the following exchange:

Rabbi: In the times of the gemara there were no hours like we have hours. There were what we call Shaos Zmaniyos. The way you figure out Shaos Zmaniyos is you take the amount of minutes in the day (i.e. in the winter days are shorter and have less minutes than in the summer) and you divide by twelve. So in the winter an hour can have less than 60 minutes and in the summer more.

Me: If in the times of the gemara the hours weren't the same as ours, how do we know the minutes were the same?

Rabbi: Hmm, well I don't remember any discussion on the minutes being different... the minutes were the same... yes, I think the minutes were the same. (He ended that with a bit of a puzzled look on his face and then continued the shiur.)

Well, what do you think?

By the way, here is a nice link on the history of timekeeping, but I don't think you need it to answer the question.

Al Hanissim in Al Hamichya Part 3

2007-12-21T06:17:00.000-08:00

In a local weekly Torah publication I found the following:

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

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

Selling Chometz Before Pesach

2007-12-20T07:11:00.000-08:00

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

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

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

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

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

Hodaas Baal Din

2007-12-19T07:15:00.000-08:00

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

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

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

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

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

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

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

2007-12-18T06:39:00.000-08:00

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

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

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

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

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

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

Is Lomdus "aHistorical"?

2007-12-17T09:36:00.000-08:00

I received the following question from an anonymous commenter:

Could you please comment/respond to those people who claim that lomdus is ahistorical, meaning that the Gemara and Rishonim didn't really think in these conceptual terms and we are inventing these ideas after the fact?

I have heard this question many times from many people. Before I attempt to give an answer I'll just say that the question never bothered me. Why not? Because whenever I hear a question on a sugya or a rishon and I hear a variety of answers, it seems to me that the lomdishe answers are always the best. Many of the other answers involve either a dochek in the lashon or a dochek by making some kind of ukimta or both. Generally speaking, I have found the lomdishe answers to be the most satisfying in terms of resolving the problem.

What about the fact that the gemara and rishonim don't seem to "think" in these conceptual terms? Even if the lomdishe answers are "the best", how can we say that these answers are correct if the very positions we are explaining don't seem to follow this line of thinking?

I once heard a prominent Rabbi answer this by saying that the earlier generations were holier so they were able to say the same complicated ideas in more simple terms. I can't say I am totally satisfied with this answer because the answer is already assuming the lomdishe approach to be correct. It's only addressing why this already-assumed-to-be correct approach isn't found in earlier times. However, the question is how do we know the approach is correct in the first place. Why not say that the fact that this approach doesn't appear earlier automatically negates it as the correct approach?

My approach would be as follows: Imagine we have a din that is found in the gemara only twice in two different cases. Now, imagine that in the times of the rishonim a new scenario arises where this din possibly will come into play. The rishonim will now be forced to closely analyze the two sugyas where the din was previously found. Based on the analysis each rishon will now have to determine the halacha in the third new scenario. Now, imagine this process going on for generations. New scenarios keep on arising. New proofs back and forth. Different positions being taken by different poskim.

Compare now the language of someone in the present day analyzing this din and the language of the first set of rishonim. In the times of the rishonim, they were focused on determining the nature of the din only in regard to the new scenario that arose. We, on the other hand, are focused on making sense out of generations of commentary on the particular halacha we are dealing with. Thus, while the Rashba sees his mission as merely explaining the nature of the din with regard to the particular issue he is dealing with, our mission is to compare and contrast the Rashba with the many other comments that have been made over the centuries. So, we are trying to take the Rashba and all the many other meforshim and "break them down" into their simplest form. In that way, we can line up the various shittos and classify them into much neater chakiros. So, in essence, I think the Rashba did think in the same conceptual way that we think. However, the passing of time gives us different issues to deal with than those that the Rashba dealt with. Whereas the Rashba only had to deal with the gemara, we have to deal with the gemara, and the Rashba, and the Rambam, and Rabbi Akiva Eiger etc. This different perspective creates a need for a more precise and simplified terminology.

Nimtza Echad Mehem Karov O' Pasul

2007-12-17T09:07:00.001-08:00

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

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

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

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

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

Why There is no Al Hanissim in Al Hamichya

2007-12-15T16:53:00.000-08:00

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

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

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

Spotty Posting for the Next Week

2007-12-04T20:51:00.000-08:00

I will be away for the next week so posting will be spotty (if there is any at all). Regular posting should resume by Friday, December 14th.

Shlichus by Mitzvos

2007-12-03T19:11:00.000-08:00

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

Zimun of 10 people

2007-12-02T21:26:00.000-08:00

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

The Lomdus of Thanksgiving

2007-11-29T21:48:00.000-08:00

I was a bit busy today, so I'm gonna have to hold off on the heavy lomdus. But, here is an interesting "chakirah" to consider. Should we view Thanksgiving as a festival that is celebrating the survival of the pilgrims in 1622? Or, is it really a holiday that, as George Washington said in 1789, "[should] be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be"?
Further, which view would create more halachic problems in Jewish people celebrating the day? In Rav Moshe's teshuvos he seems to place a singular focus on the episode of the pilgrims. Would he have been more machmir or mekil had he viewed the day from the perspective of Washington's statement? Or would the law have been the same? Perhaps, all that matters to Rav Moshe is the original source of the holiday.

Chukas HaAkum 2 - What did RYBS hold???

2007-11-28T16:49:00.000-08:00

In this previous post we discussed the different shitos regarding chukos haAkum. The more stringent view belonged to that of Tosafos and the Gra, while the Rema went with the more lenient view on the Ran and the Maharik. In Rabbi Broyde's article on Thanksgiving, it was clear that the Rema's shitah is the normative halacha. I found the same thing to be true in the teshuvos of Rav Moshe Feinstein.

Interestingly, today I just happened to stumble on the issue in B'Ikvei HaTzon by Rabbi Hershel Schachter. Here is what he has to say in Siman 5:

And on this matter our Rabbi (Rav Soloveitchik) explained the words of Tosafos in Sanhedrin 52b (d"h Ela) [whom the Gra in Shulchan Aruch holds like (Siman 178)] in terms of the two types of Chukos Hagoyim... and for this reason our Rabbi (Rav Soloveitchik) was so stricked about shuls with mixed seating, and he publicized this 4o years ago, that one shouldn't enter them even for a mitzvah like blowing shofar on Rosh HaShana, because this matter was started by the idol worshipers, to daven with families together etc.

It sounds to me like he is saying that Rav Soloveitchik was being machmir for the shitah of the Gra and Tosafos! This is a bit confusing because, as Rabbi Broyde pointed out, Rabbi Schachter himself quotes the Rav in Nefesh HaRav as being lenient in celebrating Thanksgiving. Maybe the Rav held that even according to the Gra and Tosafos, it is permissable to celebrate Thanksgiving? Any ideas??

B'fanei Nichtav in Bavel 2

2007-11-27T19:33:00.000-08:00

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

2007-11-26T19:14:00.000-08:00

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.

Thanksgiving in Halacha

2007-11-25T09:00:00.001-08:00

The two previous posts on Thanksgiving in Halacha that dealt with Rabbi Broyde's article (link) have been taken down (at least temporarily). Rabbi Broyde has emailed me some responses to my post and a future modified post is pending further developments. Stay tuned!

A Source from Rabbi Eidensohn Regarding a Previous Post

2007-11-25T07:53:00.000-08:00

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

2007-11-21T19:25:00.000-08:00

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

2007-11-20T20:17:00.000-08:00

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.