Chezkas Mamon (II)

The gemara at the beginning of Elu Metziyus (B.M. 21) raises a question of whether one is obligated in hashavas aveida in certain cases, and leaves the safek unresolved. The Rosh paskens on these cases that safeika d'oraysa l'chumra and one is obligated to announce the avieda. Why would we not treat this issue as a safeik mamon and say that the finder has become the muchzak in absence of any demand to return it? The Kuntres HaSefekos (6:9) suggests here as well that we only apply chezkas mamon where the issue at hand is a safek in metziyus. Where the issue is one of sadek in din, we apply sfeika d'oraysa l'chumra. (See the Rosh in perek 2 of machshirim re: rov yisrael).

Chezkas Mamon on Keifel

My son is learning hamafkid. The Mishna tells us that a watchman has the right to pay for an article stolen under his watch and thereby acquire the keifel penalty the thief would pay if caught. The gemara introducues a number of cases where it is unclear, there is a safeik, whether the watchman has purchased the rights to keifel. The RI"F paskens l'halacha that in these doubtful cases we split the keifel between the watchman and the owner. The Rosh, however, disagrees. In any monetary case of doubt there is a rule of chezkas marei kammah - whoever is the last possesor of title retains rights until proven otherwise. Since the owner of the animal retains title until we know otherwise, why would we not rule in a case of doubt that he is also entitled to keifel? A number of possible explanations could be given for the RIF. One approach is to distinguish between title on the animal or object, which exists, and title on the keifel payment, which does not exist until the thief is caught (this is not so simple a distinction to draw, as keifel is at first glance just an product of ownership, not a new thing in and of itself). The Kuntres HaSefeikos suggests that one may distinguish between a doubt between parties (safeik b'metziyus) which can be resolved by looking at who the marei kammah is, and a doubt in halacha (safek b'din) which is independent of the parties involved.

Dreidel

My wife suggests that the spinning of the dreidel in all directions represents the "ohr makif" that surrounds every Jew. I have not seen any seforim bring that down - it is a very novel chiddush!

Sfeikos in Shiurim

"Kol shiurei chachamim l'hachmir chutz mk'gris" (chulin 65). Rashi learns this is the old rule of sfeika d'oraysa l'chumra, skeika derabbanan the kula, and gris is just an example of a derabbanan. However, Tos, would seem to argue. The gemara in 4th perek of brachos has a safek whether the zmanei tefila are ad v'ad bichlal or ad v'lo ad bchlal. Tosfos asks what the safek is - "kol shiurei chachamim l'hachmir" except by gris? The implication is that even by dinei derabbanan (like tefila) you would be machmir on a safeik in shiurim. Tosfos seems very strange - why should other sefeikos derabannan be l'kula, but a safek in shiur be l'chumra? My suggestion (until I think of something better): R' Yosef Engel has a chakira in Esvin D'Oraysa whether issurei d'oraysa are mitzvos hagavra or mitzvos hacheftza. Assuming that issurei d'oraysa are issurei cheftza, but issurei derabbanan are issurei gavra, one could understand the rule of sefeika d'oraysa l'chumra is really because we are machmir on a safeik in cheftza and not a safeik in the chovas gavra. By way of analogy, I recall R' H. Shachter once cited a Degel Reuvain to explain the reason according to the Rambam a safeik issur kareis is mechayeiv an asham taluy (when acc to Rambam sefeika d'oraysa is just an issur derabbanan) is because a safeik issur kareis is an issur cheftza while all other sefeikos are issurei gavra. Since shiurim serve to define the cheftza shel mitzva, even by an issur derabbanan one could argue that one should be machmir.

Chanukah and Eretz Yisrael

The gemara (Megillah 11) teaches us that four kingdoms have opressed the Jewish people in galus, and among them is Yavan, the Greek opression during Chanukah. The MaHaRaSha questions why the gemara refers to the opression of Yavan as part of the galus when the Jewish people were living in Eretz Yisrael during that period. He answers that although we lived in Eretz Yisrael, since there was no autonomy, this is considered a period of galus. Indeed, the Rambam (Hil Chanukah 3:1) details the restoration of Jewish kingship that continued for over 200 years as part of the reason for the celebration of Chanukah . A Rabbi in our neighborhood remarked once that we are all Zionists because all Jews want to return to Eretz Yisrael. Not true. We all want to return to Eretz Yisrael, but a return to Eretz Yisrael even to learn Torah and keep mitzvos is still galus. Our hope is to rule Eretz Yisrael as our own autonomous state, to live as a nation in freedom. I would argue that political autonomy is more of an indicator of geulah than the number of kollelim in Eretz Yisrael; during the periods of Tanach when kings who were not shomrei Torah reigned we were not in galus though the land was filled with avodah zarah. I often am given the impression that to many people the State is just at best a "hechsher mitzva" to enable shmiras hamitzvos and limud haTorah in Eretz Yisrael, but of no significance as an end in itself. I believe Chanukah teaches us otherwise.
Ya'akov Avinu instructs his children in this week's parsha "K'chu mizimras ha'Aretz". R" Nachman (Likutei MoHaRaN II:63) explains "zemer" not as cutting, but as "song". Every land and pasture has its own unique niggun, which is known to the shepards who tend their flocks there. Ya'akov Avinu instructed the Shevatim to carry with them the song of Eretz Yisrael to reveal to Yosef. We need to open our minds and hearts to listen to the song of Eretz Yisrael, the song of reishit tzmichat geulateinu.

Parsha Riddle (Mikeitz)

There are 6 consecutive words in the parsha that begin with the letter Aleph. I'll leave it to you to find them.

Yehudah and Binyamin (II)

Reuvain actually offered to be responsible for Binyamin even at the cost of sacrificing his own children, but Ya'akov rejected his offer. The Tiferes Shlomo explains Yehudah's words "anochi a'arvenu" had profound meaning to Ya'akov. The gemara (Baba Basra 173) learns from the words of Yehudah that there is a halacha of arvus - if person X wants to make a loan, I can become an areiv by guaranting my assets as collateral in case the borrower defaults. On a metaphysical level, Jewish survival is based on our each bearing responsibility for each other, in effect offering ourselves as collateral to see not only that we each grow in mitzvos, but that those around us are not left behind. Outside the financial realm, halacha has another principle of arvus which allows me to be motzi someone else in a mitzvah even if I have already done it myself - my mitzvah is incomplete until the next person also has been yotzeh. Chazal tell us Ya'akov instituted tefilas "arvis". Tiferes Shlomo explains that this word, commonly translated as night, also comes from the root of "areiv", as our co-responsibility is most needed in the dark night of galus. When Ya'akov heard Yehudah use this formula, he knew Yehudah would not lose Binyamin, My wife added a beautiful chap based on the relationship between arvis and arvus. She suggested that the common practice of women not dabening arvis at night may be related to the machlokes haposkim (R' Akiva Eiger, Dagul M'Revava) whether the principle of arvus for mitzvos extends to women as well, e.g. can a women who was already yotzeh a mitzvah perform that mitzvah again to be motzi a women who was not yotzeh already.
I would suggest that Yehudah's promise of "anochi e'ervenu" (he will be an areiv) rang true because he already had shown his fidelity to truth at all costs by confessing to be the owner of the "eiravon" which he left with Tamar.

Yehudah and Binyamin (Parshas Mikeitz)

The gemara in Sota tells us the because Yehudah pledged to give up even his olam haba should he fail to return with Binyamin, his bones rolled in his coffin as Bnei Yisrael travelled through the midbar and he was not admitted to gan eden. Moshe davened for Yehudah, asking that in the merit of his causing Reuvain to admit to misdeed and do tshuvah, Yehudah should be admitted to gan eden. Reuvain had sinned by moving his fathers bed into Bilha's tent after Rachel's death, and only admitted his wrongdoing when he heard Yehudah, at the expense of great embarassment, admit to being the the father of Tamar's children.
R' Leib Chasman, in his eulogy for the Alter of Slabodka, asks on this Chazal, why did Yehudah gain entry into Olam haBa only based on his causing Reuvain to admit guilt - why would he not gain admission based on the merit of his own admission of guilt? R' Leib Chasam explains that the true measure of a person's greatness is their ability to influence others. Yehudah's influence on Reuvain was a far greater measure of his true character than his own personal admission of guilt.

Pidyon haBen

Usually halacha treats certain areas as dinei mamonos - financial law, and other areas as issur v'heter - ritual law, and the rules for the two areas are often very different. Pidyon haben is a gray area - do we treat this like terumos and ma'asros, where there is an obligation to separate and distribute a % of one's crop to a kohein as a ritual obligation to make the food edible, or is it purely a financial obligation? One possible difference is raised by the Minchas Chinuch - one an forgive a financial obligation and remove a debt (mechila), but one cannot remove a ritual obligation by forgiving payment. A kohein has no power to forgive the payment without accepting anything, which would seem to indicate that this is a ritual obligation. The Tzemach Tzedek discusses a case of a woman who gives birth and does not know whether her father was a kohein or levi (which would remove the obligation of pidyon haben). The halacha is "ain holchin b'mamon achar harov" - we do not follow majority in laws of mamonos. Even though if we follow the majority of people we would assume the father is a yisrael and hence there is a pidyon obligation, the tzemach tzedek rules that we treat this as a financial matter and no obligation exists. The Kuntres haSefeikos (6:5) argues. There is much more to discuss on this issue!

Asheimim Anachnu (Parshas Mikeitz)

"Asheimim anachnu al dvar acheinu (we are guilty in the matter of our brother)... v'lo yadu ki hameilitz beinusam (and they did not realize the translator was amidst them)" .The Tiferes Shlomo notes that these were the Shivtei Kah, the holy shevatim, who undoubtedly carefully considered before acting against Yosef, who went through 22 Yom Kippurs knowing what they did to Yosef and still having no regrets, and now 22 years later, in the face of the evidence of the events of Mitzrayim, they suddenly realized they were wrong. In our own lives, how often do we convince ourselves of our righteousness, only to discover years later or never at all that we were really in error? Yet, that moment did come for the Shevatim, and at that moment, the "meilitz" was among them. In a play on words the Tiferes Shlomo explains "meilitz" not as translator, but akin to what we utter on Yom Kippur - "b'ain meilitz yosher mul maggid pesha..."; a "meilitz" is a Heavenly angel who speaks in our defense at time of judgement. It may take years to get there, but the very moment we acknowledge error, immediately the tide changes and a Heavenly voice of mercy begins to plead with Hashem for our forgiveness.

Chanukah and school vacation

My daughters did not get off for Thanksgiving this year, although their school has given off for this day in the past. I guess the local more-to-the-far-right school has succeeded in setting the agenda. They do have off this weekened, under the guise of Chanukah (don't call it New Year) vacation.

Tefillah - d'oraysa or derabbanan?

The Rambam's opinion is that tefilla is a mitzvah d'oraysa, while the Ramban disagrees. One of the proofs against the Rambam's position (discussed by the Sha'agas Arye #15) is the Mishna in Brachos (20b) which states that a ba'al keri must think (hirhur) the words of keriyas shema and bentching even if he cannot say them because of his state of tumah, but he can skip tefilla. The difference would seem to be that that shma and bentching are d'oraysa mitzvos, while tefilla is not - which of course, is contrary to the Rambam's position.

Shiurim - safek derabbanan l'kula?

The gemara (Nidah 58b) quotes R' Abahu that all safek shiurim are l'hachmir except for a safek shiur k'gris by kesamim. Rashi explains that shiurim are halacha l'moshe m'sinai, so this halacha is really nothing more than a restatement of the rule that safeik d'oraysa l'chumra. It also implies (Rashba spells this out) that the rule would not be true only by a gris, but by any derabbanan.
The gemara in Brachos (30) has a safek whether the shiurim for davening times are ad v'ad bchlal or ad v'lo ad bichlal. Tos. asks what the gemara's safek is - we should adopt the stricter shiur because safek shiurim l'chumra. From Tos. question we see that Tosfos disagrees with Rashi - tefila is a din derabbanan, yet Tos. still felt we should interpret shiurim l'chumra. Tos. would ostensibly learn that this is a special kula by gris.
According to Rashi, it is a bit difficult that we require a restatement of the basic rule of safek d'oraysa l'chumra and safek derabbanan l'kula, but even more difficult is Tos. - why should we go l'chumra by all sfeikos of shiurim even by dinim derabbanan?

Kinyan on Davar sheLo Ba L'Olam

My son is learning perek hamafkid. The Mishna allows a watchman to pay for an object stolen from him, in which case he, the watchman, and not the original owner, would collect the penalty of keifel (double-payment) from the thief if caught. The gemara questions how this law works when we know that one cannot aquire a "davar shelo ba l'olam", an item which does not yet exist: the double-payment (keifel) penalty does not exist until the thief is found, and the object no longer exists in the owner's control for that to be sold either. What exactly is this watchman acquiring? The gemara answers that when the watchman originally received the object from its owner there is an implicit sale of the object, contingent on the object being stolen and the watchman later agreeing to pay for it. An interesting chiddush emerges from this discussion: Although one cannot buy a davar shelo ba l'olam, one can buy an existing object on a condition that is lo ba l'olam. In other words, I cannot buy fruit from your trees before that fruit has grown, but I can buy the existing trees on condition that they grow fruit at some future date.

Chanukah - Zecharya haNavi's vision

I think it's probably not coincidental that the 8th Torah in Likutei Moharan starts and ends with the focus on Zecharya haNavi's vision (ch. 4) of the golden menorah with 2 olive trees on either side, apropos of Chanukah. Zecharya does not understand the vision until Hashem explains that power is not with armies or might, but with the spirit "ruach" of Hashem. OK, what does that have to do with olive trees around a menorah? R' Nachman dedicates part of this torah to explaining the concept of Birur. Despite the fact that shul rabbis seem to devote endless derashos to this, most people have no problem deciding to do good things and avoid bad; the big problem is how to sort out one from the other amidst the comfusing and competing values in life (not for now, but this is the result of the big mix up of tov and ra after Adam ate from the tree). Imagine someone who has eaten cake his whole life, but has no idea how to bake. He can't even guess at the ingredients. Imagine then giving that person a piece of cake and asking them to undo the recipe and break it down into its component parts - what do you think the odds of success are? Without knowing the ingredients and looking at the recipe book, we have even less of a chance of seperating the good from the bad in life. Our recipe book is torah and tefillah. R' Nachman teaches in many places that tefila is the profoundest statement of emunah, belief, because when we pray we acknowledge that G-d has the power to change the course of how things are going (otherwise why bother davening for anything?). Tefila is where we want to be, but saying so is not enough; we have to make those dreams into reality. Torah is the practical how-to of sorting out life so we achieve what we pray for. Assur/muttar, tamei/tahor, chayav/patur - halacha is all about seperating the prohibited from permitted, undoing the cake into its ingredients. The punchline of Zecharya's vision is that we have to work at seperating the olive trees in life, at discerning and distinguishing between the tree of life and the tree of death, through the power of menorah, the "ruach" of torah and tefilah. R' Nachman discusses at length this concept of ruach and how to get more of it, but that's for another time.

Derishas Tzion - idealism

I bought a copy of R' Tzvi Hirsch Kalisher's Derishas Tzion a few weeks ago and have been going through sections when I can steal a moment or two. If you like Ain HaBanim Smaicha, get a copy. The Mossad haRav Kook edition has many letters exchanged between R' Kalischer and the likes of R' Akiva Eiger, Chasam Sofer, Malbim. Another of my pet peeves is the loss of idealism in our community. You look at a sefer like Derishas Tzion and realize these people were thinking and dreaming of rebuilding Eretz Yisrael, being makriv korbanos, etc. when realistically there were no practical means of doing so at hand. Yet, those dreams eventually became reality. What are the "leaders" today thinking and dreaming about? How to stop people from reading certain books lest they be led astray? Maybe there would be less danger of being led astray if more vision was provided that could inspire.

Sar haMashkim v'Sar HaOfim - Rosencrantz and Guildenstern?

I remarked over Shabbos that the Sar haOfim v'Sar haMashkim at the end of P' VaYeishev are the Rosencrantz and Guildenstern on Sefer Braishis. (For those who have long forgotten H.S. or college lit., R. & G. are two aides to the King in Shakespeare's Hamlet - they are apparently look similar, their names are constantly confused by the King and Queen, and they have no real personality or features that distinguish one from another.) Aside from Yosef's differing dream interpretation for each, they seems identical straw men just there to move the story to the next phase of getting Yosef to Pharoah's court with a reputation as a dream solver.
However, the truth is not so simple. Look at their offense - what could the Sar HaMashkim have done if a fly landed in the king's cup after he presented it? Yet how can we not hold the baker responsible if a pebble is baked into the flour which should have been thoroughly sifted? Look at the dreams - Saf haMashkim describes every detail of the grape blossoming, growing, being harvested and turned into wine, and finally served. Sar HaOfim starts with the vision of carrying three loaves of bread - who baked them, how did they get there, how did he end up carrying them? All the details are missing!
Sar haMashkim is a process person. He wants to control and watch over every detail of production, and is tripped up only on the smallest detail out of his control. Sar HaOfim is a results person Just get to the bread, and don't bother me too much with the details, which of course end up tripping him up.
There is a little bit of Sar haMashkim and Sar HaOfim in each of us, and the key is to know how to balance the two, i.e. when to attend to the process in every detail, and when to rush to achieve results even if how we get there has some flaws.
Of course, the lesson is not just for us, but there was something Yosef needed to take with him from this story that would prepare him for the future before the story could continue. If I've whetted your apetite, go get a Mei HaShiloach and take a look at the torah of the Ishbitzer on this episode!

Is Kollel a Job?

am always surprised that the local kollel members are mostly not around in the bais medrash at night. If learning was a job with a salary, then it makes sense that there are sedarim when you are on the clock, scheduled lunch and other breaks, and then you punch out. But if kollel means you are devoted to being "klei kodesh", then shouldn't that mean it is a lifestyle, not a job, i.e. you don't punch out at 5:00? I don't know if things are the same elsewhere, or is the local kollel particularly weak. The excuse that they need "family time" doesn't pass muster - when Rabbis preach that their ba'alei batim be kovei ittim, that also comes at the expense of "family time" considering the average guy gets home from work at 7:00 or later, needs to eat, and daven ma'ariv, etc., but is still expected to give up an hour or more to have a seder. You can't slice it both ways.

Shalom

Last week I said a shiur on the theme of shalom and chanuka. Shalom is related to shleimus, completion or perfection, or coming to peace with oneself as well as others. I opened with a chakira into exactly what this idea means: are we usually at peace until machlokes interrupts, and shalom restores the natual state of things, or are we fundementally conflicted unless we strive to attain a state of shalom?
The second possibility sheds new light on the expression "bikeish Ya'akov lasheves b'shalvah" - it was not passivity Ya'akov wanted, but he was a mevakeish, striving toward an elusive goal.
(I wrote up the mail points here: http://kallahmagazine.com/news.htm)

KallahMagazine.com

Please feel free to check my wife's website, KallahMagazine.com Some nice divrei Torah there as well!

Teaching and Learning Halacha

This is definitely one of my peeves, and l'shitasi, it is the lack of thinking skills that gets me. Lets first face up to a basic fact: to live as an observant Jews involves knowing a myriad of detailed laws. No way around that. Can someone therefore explain why no one has yet come up with a concise and basic English language text that will give the needed laws to kids in a readable and understandable format? There is no reason why students cannot be given simple handouts of a page or two with just basic halachos that can be reviewed in 15 minutes of call time and students can then read and review at home. Since the only goal is retention of fact, no reason not to do this in English. What schools seem to try to do is cover fact, but do it from a Hebrew text (e.g. Kitzur Shulchan Aruch) so the barrier of language interferes with learning and slows things down. Let them learn keriya and ivrit elsewhere - it is not part of the goal of a halacha curriculum. But the far worse crime is stopping there and thinking that is what learning halacha is. And horror of horrors - most adults think this way as well!Halacha means "asukei shmaytza aliba d'hilchisa" - learning a "sugya" (topic) with the goal of practical application. In other words, we have to start from the gemara with understanding the theoretical background. We have to understand the variant views of Rishonim. Finally, we get to what we do. I know a well meaning Rav who spends a halcha shiur mostly summarizing tshuvos of R' Moshe. His ba'alei batim can tell you on a topic that R' Moshe says X or Y or Z, but cannot tell you how R' Moshe got there or even tell you what the basic sugya in gemara is all about. Unless you are a talmid muvhak of R' Moshe and unquestionigly accept his psak, that is not what halacha is all about. Start with the gemara, understand the topic, and you will eventually see that tshuva seforim usually fall into a range of opnions, and in light of your understanding of the sugya will take on new meaning. Are the poskim debating sevara or metziyus? Is a tshuva predicated on a specific Rishon or Achron's understanding that is not unanimously accepted? Is a sevara well established by precedent, or a radical chiddush? Without the background of the sugya, there is no way to begin to approach these questions. All of my Rebbeim preferred the Aruch HaShulchan to the Mishna Berura, and if you have learned the two, you can see why. The M.B. lists opinions, but gives very little background on each or why a conclusion is valid (other than it is the consensus view). The A.H. uusually starts with gemara and rishonim, and follows through to analysis and conclusion. You don't just know the law, you know why it is so. But, you argue, what difference does it make - the facts are still the facts? No they are not! Halacha recognizes that there are different circumstances that warrant different approaches, e.g. hefsed merubah, sha'as hadechak, bdi'eved, etc. If you understand principles and not just a collection of facts, then you have a much better chance and applying those ideas correctly. An e-mail list just had a question posted by someone who wanted to know what to do if stuck on a train late on Friday. If all you have is a collection of facts, and the needed fact is not in your collection, you are stuck. But if you understand principles, e.g. you know what bein hashemashos is, you know about techumin, amira l'aku"m, you probably can at least come to grips with many of the issues before even asking the question. R' Chaim Brisker was once challeneged on a Tos, and R' Chaim claimed Tos did not say what the questioner insisted it did. The questioner cited daf and amud, but R' Chaim was not convinced. Finally, someone grabbed a gemara to check, and R' Chaim was right. The audience was convinced R" Chaim knew every Tos by heart, but R' Chaim explained that really he didn't need to - he knew how Tos thinks and therefore knew the assrtion had to be wrong. We have to teach not just the facts of halacha, but how halacha things, what the principles are, what the issues are. So spend 15 minutes a week feeding students facts - what proper brachos are, what the 39 melachos are, etc. But once a week send an hour teaching a topic. Delve into a few lines of gemara, a machlokes Rambam and Tosfos, a dispute among later poskim. Teach the halachic process, not just the halachic facts.

Rote Learning vs. Thinking Skills
To my mind a major problem with yeshiva ed is the emphasis on rote learning of fact as opposed to thinking in elementary school. To take one egregious example, most of what my kids learn in chumash (and my oldest is in 6th grade boy, oldest girl is in 4th) is done via a "teitch" method. The rebbe or morah reads the pasuk and explains word for word, and the kids are responsible for each word and its meaning. The girls usually go a step further than the boys in learning ivrit skills like picking out the shoresh of the word, its binyan, etc. Knowing the material well means being able to read and explain the psukim (and few Rashis, depending on the grade level), but not much beyond that. When you have a moment feel google "Bloom's taxonomy". Benjamin Bloom formulated 6 different levels of thinking skills that occur in education, and corresponding questions that teaches can use to elicit using those skills. The skills are: 1) knowledge 2) comprehension 3) analysis 4) application 5) synthesis 6)evaluation. Without going into great detail, ask yourself what types of questions your children are being asked to respond to when they learn chumash and you will discover that they seldom move beyond level 1 or 2 in the taxonomy. Read the pasuk, explain the words, summarize what happened, mi amar, al mi ne'emar, etc. all all questions that simply call for retaining and understanding facts. Why can't our students move beyond that even in the younger grades? For example, my daughter is learning parshas vayeishev in 4th grade. Some questions that could be raised even at this level:
(Application) You were given a special gift my your Mommy/Daddy - how should you act without around siblings? (Analysis) Explain why Ya'akov loved Yosef more than the other sons? (Synthesis) Before learning the next perek, how do you think the brothers should respond to Yosef's dreams? Why? (Evaluation) Did the brothers do the right thing by trying to sell Yosef? Now, I know many will be surprised by that last question - after all, how can we judge or evaluate the shivtei Kah? I agree! But the way to impart that lesson is not to preach it, but to elicit the student's curiosity with an open ended question that forces them to think about different possibilities.
Even at the youngest grade levels, we should always encourage thinking, exploring, curiosity. Dry facts inevitably get boring - its no wonder students can't concentrate!

Why Start this Blog?

This is a home for some divrei torah and lots of thoughts about Jewish ed. Having 4 kids in yeshiva leads to 4 kids worth of frustration with the system, and this is my outlet for what schools are doing and what they could/should be doing. It also is my outlet for some randon divrei torah and sociological observations. Hope you enjoy!