Thursday, July 31, 2008
practical halachos learned from the description of cities of the Levi'im
The specifications of the boundaries of the cities reserved for Levi'im may not seem of much contemporary halachic interest, but some basic laws of Eiruvin are derived from that parsha. Thumbing through Mishnayos Eiruvin will get you at least two of them. Curious? Take a look at 4:8 and 5:2 (you didn't expect me to do the work and write out the halachos, did you? : )
more on rov: holchin achar harov vs. hilchisa k'rabim
Getting back to the world of rov, last post (which seems to have been written eons ago) explained that if a person bumped into a pile of 9 frogs and one sheretz, without any other information we have a right based on the probabilistic halacha of rov to assume that a frog and not a sheretez was touched and the person is tahor. However, if a Navi or bas kol told us that in fact the one sheretz was touched, the person should be tamei. Probability cannot trump the testimony of the Navi as to what actually occurred. Why then do the Chachamim reject the evidence of the bas kol which declared (Bava Metziya 59) with certainty the halacha follows R’ Eliezer and instead rely on the probabilistic evidence of rov and pasken like the dissenting majority?
The answer posed in a few of the comments is that the question of what was touched – a frog or sheretz – is a question of fact, of metziyus, of that which can be measured concretely and tangibly, if we just had more information. The bas kol or Navi simply provides that extra factual information. The question of who halacha should follows is not an objective quantifiable or factual issue. Perhaps by definition halacha simply is the consensus of the majority. As R’ Elchahan puts it in Koveitz Divrei Sofrim, there is a difference between “holchin achar harov”, the probabilistic rov of the first sort, and “hilchisa k’rabim neged hayachid”, the rov of halachic verdict of the second sort.
The answer is neat, but it’s perhaps too good. The only source for the principal of rov in the Torah is the pasuk of “acharei rabim l’hatos”, which appears in the context of psak of beis din. If probabilistic rov and the rov of beis din’s verdict or halachic conclusion are two different animals, how does the same pasuk serve as the source for both? (Compare this question with R’ Chaim’s kashe that was discussed in this post.)
More on this topic in the future bl"n.
The answer posed in a few of the comments is that the question of what was touched – a frog or sheretz – is a question of fact, of metziyus, of that which can be measured concretely and tangibly, if we just had more information. The bas kol or Navi simply provides that extra factual information. The question of who halacha should follows is not an objective quantifiable or factual issue. Perhaps by definition halacha simply is the consensus of the majority. As R’ Elchahan puts it in Koveitz Divrei Sofrim, there is a difference between “holchin achar harov”, the probabilistic rov of the first sort, and “hilchisa k’rabim neged hayachid”, the rov of halachic verdict of the second sort.
The answer is neat, but it’s perhaps too good. The only source for the principal of rov in the Torah is the pasuk of “acharei rabim l’hatos”, which appears in the context of psak of beis din. If probabilistic rov and the rov of beis din’s verdict or halachic conclusion are two different animals, how does the same pasuk serve as the source for both? (Compare this question with R’ Chaim’s kashe that was discussed in this post.)
More on this topic in the future bl"n.
Thursday, July 24, 2008
rov - birur or hanhaga; probable truth vs. certainty
Last post I mentioned the position of the Terumas haDeshen that rov is just a hanhaga and not a birur; that is, rov just points us to a probable solution to a dilemma, but does not resolve with certainty the underlying question. It would seem, therefore, that if we could achieve certainty, we could no longer rely on the probabilistic resolution of rov. For example, if I had a mix of 9 frogs and 1 tamei sheretz and accidentally touched one animal from the mix, given no other information, since there is a 90% probability that I touched a frog and not the one tamei sheretz, rov dicatates that I am tahor. But let’s say I could know with certainty which animal I touched. Let’s say a Navi came and revealed prophetically that it was the sheretz and not a frog that I came in contact with – would I have a right to still rely on rov? It would seem not, as an assumption about what probably happened cannot trump the revelation of what factually occurred, the certainty of truth.
The problem is that this thesis seems to contradict a well known gemara. The gemara (Bava Metziya 59) tells us about a dispute between R’ Eliezer and the Chachamim regarding whether a certain type of oven was tahor or tamei. R’ Eliezer marshaled all types of miraculous signs to prove that truth was on his side, culminating in a prophetic bas kol declaring from Heaven that his position was correct. Yet, the Chachamim stood their ground, rejected the bas kol, and declared the halacha always follows the majority opinion - “Acharei rabim l’hatos”, rov always wins. Based on the analysis above, this gemara is puzzling. Rov is probabilistic truth, but not factual certainty. Given no other information, we would assume the majority opinion is correct, just like in the absence of other information we assume a person touched one of the 9 frogs and not the 1 sheretz in a pile. But if we have a window on certainty, then that should trump rov. Just like a revelation of a Navi that factually the sheretz was touched and not a frog renders any discussion of what probably happened moot, the prophetic revelation of by the bas kol that R’ Eliezer is right should render any discussion of majority vs. minority moot.
Why is this case of tanir shel achna’i, the debate between R’ Eliezer and Chachamim, different than the case of 9 frogs and one sheretz?
(A similar question appears in Koveitz Divrei Sofrim of R’ Elchanan, and I think there is more than one way to skin this cat. I like the kashe so I figured I would share it to give you some oneg Shabbos.)
The problem is that this thesis seems to contradict a well known gemara. The gemara (Bava Metziya 59) tells us about a dispute between R’ Eliezer and the Chachamim regarding whether a certain type of oven was tahor or tamei. R’ Eliezer marshaled all types of miraculous signs to prove that truth was on his side, culminating in a prophetic bas kol declaring from Heaven that his position was correct. Yet, the Chachamim stood their ground, rejected the bas kol, and declared the halacha always follows the majority opinion - “Acharei rabim l’hatos”, rov always wins. Based on the analysis above, this gemara is puzzling. Rov is probabilistic truth, but not factual certainty. Given no other information, we would assume the majority opinion is correct, just like in the absence of other information we assume a person touched one of the 9 frogs and not the 1 sheretz in a pile. But if we have a window on certainty, then that should trump rov. Just like a revelation of a Navi that factually the sheretz was touched and not a frog renders any discussion of what probably happened moot, the prophetic revelation of by the bas kol that R’ Eliezer is right should render any discussion of majority vs. minority moot.
Why is this case of tanir shel achna’i, the debate between R’ Eliezer and Chachamim, different than the case of 9 frogs and one sheretz?
(A similar question appears in Koveitz Divrei Sofrim of R’ Elchanan, and I think there is more than one way to skin this cat. I like the kashe so I figured I would share it to give you some oneg Shabbos.)
Wednesday, July 23, 2008
ain holchin b'mamon achar harov
My son recently learned the machlokes between Rav and Shmuel regarding “ain holchin b’mamon achar harov”. The scenario in the gemara (Baba Basra 93): Reuvain sells an ox to Shimon, who discovers that this particular ox has a propensity to gore. Shimon promptly demands a refund, claiming his ox is a “lemon” – he needs the ox to pull his plow, and a wild ox that gores is unusable. Reuvain counters that the sale is valid because Shimon can butcher the ox and eat it. Shimon insists that he, like most people, purchase oxen to plow, not to eat. Is the fact that “rov” of the world purchases oxen to plow and not to eat sufficient reason for Shimon to get his money back, or can Reuvain claim that since Shimon never specified that he was purchasing the ox only for plowing, he has no obligation to grant a refund? The halacha is "ain holchin b'mamon achar harov" - the behavior of the majority of the world is irrelevant, as Shimon should have specified that he wanted an ox to plow with.
In other areas of halacha we decide issues based on “rov”, so why are mamonos cases different? In fact, in other dinei mamonon cases we also use “rov”! The gemara (Kesubos 15b) tells us that a lost object found in a mostly pagan city may be kept because we follow rov and there is no obligation of hashavas aveidah (see Tosfos there which I find very difficult to understand). And to strengthen the question further: the rule of thumb is “ruba v’chazakah – ruba adif”, rov is stronger proof than a chazakah. Even if we view Reuvain as having a chazakah on the money in his possession, Shimon’s claim buttressed by a rov should be stronger.
The Ketzos (280:2) suggests two different theories to explain this halacha:
1) The Terumas haDeshen suggests a distinction between our case, where Reuvain is in possession of the money, and cases of issur v’heter where no money is involved, or the case of an ownerless lost object. Since Reuvain is in possession of the funds, the rule of “hamotzei m’chaveiro alav hara’aya” requires that Shimon bring definitive proof for his claim. There is a well known yeshivishe chakira as to whether rov is a birur or hanhaga, whether it serves as proof to resolve a doubt, or merely tilts the scale in favor of an approach but never resolves the underlying question. The Th”D comes down squarely on the side of understanding rov as a hanhaga, but not proof. If all Shimon has is a rov to bolster his claim, he fails to meet the threshold of proof required to force Reuvain to give a refund.
(As an aside, I think the Th”D implicitly contains another chiddush. Why is it that “hamotzi mei’chaveiro alav hara’aya”, that definitive proof is required to take money away from the one who possesses it? According to the Th”D, the requirement for proof imust be based on more than the fact that the current owner is a muchzak, as the Th"D never challenged the assumption of the question that "ruba v’chazaha – ruba adif”, a rov is better proof than chazakah, even chezkas mamon, possession. Just something to think about...)
2) The Ketzos disagrees with the Th"D and argues that “ain holchin b’mamon achar harov” is not because rov is a lesser form of proof, as the Th”D suggested, but rather because possession is a superior form of chazakah that trumps all other claims. “Ruba v’chazakah – ruba adif” applies only when dealing with regular chazakos that stem from the halacha of maintaining status quo. Chezkas mamom, however, is a categorically different type of chazakah, a super-chazakah that is not rooted in maintaining status quo, but is rooted in the assumption that “kol mah shetachas yad adam shelo”, possession being the strongest indicator of ownership.
There is actually a third approach to this issue in Shu”T R’ Akiva Eiger (mh"t 103:5) that you can read on your own time, but I just wanted to set the table with this to discuss some other stuff (assuming I ever get more time to write).
In other areas of halacha we decide issues based on “rov”, so why are mamonos cases different? In fact, in other dinei mamonon cases we also use “rov”! The gemara (Kesubos 15b) tells us that a lost object found in a mostly pagan city may be kept because we follow rov and there is no obligation of hashavas aveidah (see Tosfos there which I find very difficult to understand). And to strengthen the question further: the rule of thumb is “ruba v’chazakah – ruba adif”, rov is stronger proof than a chazakah. Even if we view Reuvain as having a chazakah on the money in his possession, Shimon’s claim buttressed by a rov should be stronger.
The Ketzos (280:2) suggests two different theories to explain this halacha:
1) The Terumas haDeshen suggests a distinction between our case, where Reuvain is in possession of the money, and cases of issur v’heter where no money is involved, or the case of an ownerless lost object. Since Reuvain is in possession of the funds, the rule of “hamotzei m’chaveiro alav hara’aya” requires that Shimon bring definitive proof for his claim. There is a well known yeshivishe chakira as to whether rov is a birur or hanhaga, whether it serves as proof to resolve a doubt, or merely tilts the scale in favor of an approach but never resolves the underlying question. The Th”D comes down squarely on the side of understanding rov as a hanhaga, but not proof. If all Shimon has is a rov to bolster his claim, he fails to meet the threshold of proof required to force Reuvain to give a refund.
(As an aside, I think the Th”D implicitly contains another chiddush. Why is it that “hamotzi mei’chaveiro alav hara’aya”, that definitive proof is required to take money away from the one who possesses it? According to the Th”D, the requirement for proof imust be based on more than the fact that the current owner is a muchzak, as the Th"D never challenged the assumption of the question that "ruba v’chazaha – ruba adif”, a rov is better proof than chazakah, even chezkas mamon, possession. Just something to think about...)
2) The Ketzos disagrees with the Th"D and argues that “ain holchin b’mamon achar harov” is not because rov is a lesser form of proof, as the Th”D suggested, but rather because possession is a superior form of chazakah that trumps all other claims. “Ruba v’chazakah – ruba adif” applies only when dealing with regular chazakos that stem from the halacha of maintaining status quo. Chezkas mamom, however, is a categorically different type of chazakah, a super-chazakah that is not rooted in maintaining status quo, but is rooted in the assumption that “kol mah shetachas yad adam shelo”, possession being the strongest indicator of ownership.
There is actually a third approach to this issue in Shu”T R’ Akiva Eiger (mh"t 103:5) that you can read on your own time, but I just wanted to set the table with this to discuss some other stuff (assuming I ever get more time to write).
Monday, July 21, 2008
follow your heart - musings on a noam elimelech
The Noam Elimelech on Parshas Pinchas (available online here) asks an important question:
There are two categories of people: There are wicked people who become jealous of true tzadikim and instigate fights with them and demean them, but claim they are acting out of religious zeal and piety. And there are tzadikim who act of true religious zeal and piety and fight against evildoers. How can one tell which camp is which?Apply as you like (at your own peril) to whichever groups you choose in the current political scene. In everyone’s mind there are the good guys who stand for truth, justice, and all that is good, and there are the other guys whom we feel free to castigate as misrepresenting all that is holy and pure. Except the other guys think exactly the same thing! So how does one tell the difference? The Noam Elimelech continues:
Whoever’s words penetrate to the heart of the listener speaks truthfully and is a true tzadik, as only words spoken from the heart [i.e. with pure intention] will enter another’s heart.When I got to the answer I experienced a let down. Is it just me, or does this strike you as naïve or simplistic, with all due respect to the Noam Elimelech. “Just follow your heart” is something that sounds like a Disney movie, and I don’t think it’s just the fact that we have been tainted with too much cynicism that causes us to recognize that the heart is not always the best detector of truth. In fact, I think a good argument could be made that most trouble is life is caused by following the heart instead of the brain. So much for the Monday morning musings of a cold Litvak…
Thursday, July 17, 2008
why is there a din of bitul chameitz but no din of bitul by bor in reshus harabim?
ר אלעזר שני דברים אינן ברשותו של אדם ועשאן הכתוב כאילו ברשותו ואלו הן בור ברשות הרבים וחמץ משש שעות ולמעלה
Pesachim (6b): There are two items which are not owned by a person but which the Torah nonetheless holds a person responsible for: chameitz on Pesach and a pit dug in a reshus harabim.
Ran explains that the din of bitul chamietz stems from this statement of R' Elazar. Since technically chameitz is not yours, a minimal declaration (actually, even a verbal declaration is not necessary; a mental decision suffices according to Ran) of bitul is sufficient to offset the liability of bal yera'eh.
In other words (as many achronim explain), bitul is an act of siluk - it prevents the onset of ownerhip imposed by the special gezeiras hakasuv of chameitz. Bitul is not really the same as hefker, which is the removal of ownership which is already established.
So why is there no parallel din of bitul habor (or whatever you would call it) that would allow a person to avoid being chayav for digging a pit? Why can you not simply declare yourself immune from assuming the onset of responsibility for the bor?
Pesachim (6b): There are two items which are not owned by a person but which the Torah nonetheless holds a person responsible for: chameitz on Pesach and a pit dug in a reshus harabim.
Ran explains that the din of bitul chamietz stems from this statement of R' Elazar. Since technically chameitz is not yours, a minimal declaration (actually, even a verbal declaration is not necessary; a mental decision suffices according to Ran) of bitul is sufficient to offset the liability of bal yera'eh.
In other words (as many achronim explain), bitul is an act of siluk - it prevents the onset of ownerhip imposed by the special gezeiras hakasuv of chameitz. Bitul is not really the same as hefker, which is the removal of ownership which is already established.
So why is there no parallel din of bitul habor (or whatever you would call it) that would allow a person to avoid being chayav for digging a pit? Why can you not simply declare yourself immune from assuming the onset of responsibility for the bor?
halacha - necessary truth or contextual truth?
Sorry for the lack of posting lately. The needs of my "real" job have been too demanding to make time for blogging lately.
I wanted to offer a response to a post over at Havolim, where Barzilai poses the following question: given opinions X and Y regarding an issue of halacha, if a posek decides that opinion X is true, then why in a case of hefsed merubah, tza'ar, or other such situations, does the posek sometimes allow opinion Y to be followed? If X is true, then shouldn't we be bound by the truth regardless of the circumstances?
The answer that Barzilai presents is that when a posek decides to accept X over Y it is not a statement about the truth-value of X or Y, but simply a procedural rule. When circumstances dictate, different procedural rules may come into play.
I would think one can make a pretty good case that more than procedural rules are at play here. The question seems to boil down to whether halachic truth is a necessary truth, e.g. truth like 2+2=4 is true. 2+2=4 is true at all times and circumstances; tza'ar or hefsed merubah will not suddenly allow 2+2 to equal 5. One cannot create a universe that obeys laws of reason that will allow 2+2 to equal 5. Can the same be said of halachic truth?
If I say "I have dark hair", that sentence is definitely true compared to everyone else in my family. In fact, it is true compared to a lot of other people. But if I moved to some desert island where everyone had pitch black tar colored hair, that true sentence would suddenly ring false. For certain statements, framework and context are necessary to establish meaning.
Instead of looking at halacha in absolute terms, perhaps statements need to be evaluated contextually.
Instead of using hefsed and tza'ar as examples, let me offer a different example. Assuming one lived in R' Eliezer's town and followed his opinion that machshirei milah are doche Shabbos, does it make sense to say that one is a mechalel Shabbos but procedurally Bais Din does not punish for that crime in these circumstances? Or does it make more sense to say that in the context of R' Eliezer's town, preparing machshirei milah on Shabbos is not considered chilul Shabbos?
To flip things l'kula and use a case Barzilai offers, if the majority of the world paskens agains the Tosfos RI"D and is not machshir "tein get al gabei sela", does someone who pasken like the Tosfos RI"D merely imfringe on a procedural rule, or has he violated a truism of hilchos ishus? I would contend the latter. If it's just a procedural rule that is violated, why does violating procedure here produce a mamzer, but violating procedure is other cases is just a lav?
I think there is one other approach one might take to address this problem. Truth values are relevant if we are discussing logocal statements, not if we are comparing values. Halacha is perhaps a value system, not a logic system. All things being equal, opinion X may reflect our values. But when in conflict with other more primary values such as the preservation of life, property, etc., perhaps opinion X must be sacrificed for the sake of preserving the greater good that the halachic system recognizes.
Good read Havolim - he has more to say than I can summarize and is always worth your time.
I wanted to offer a response to a post over at Havolim, where Barzilai poses the following question: given opinions X and Y regarding an issue of halacha, if a posek decides that opinion X is true, then why in a case of hefsed merubah, tza'ar, or other such situations, does the posek sometimes allow opinion Y to be followed? If X is true, then shouldn't we be bound by the truth regardless of the circumstances?
The answer that Barzilai presents is that when a posek decides to accept X over Y it is not a statement about the truth-value of X or Y, but simply a procedural rule. When circumstances dictate, different procedural rules may come into play.
I would think one can make a pretty good case that more than procedural rules are at play here. The question seems to boil down to whether halachic truth is a necessary truth, e.g. truth like 2+2=4 is true. 2+2=4 is true at all times and circumstances; tza'ar or hefsed merubah will not suddenly allow 2+2 to equal 5. One cannot create a universe that obeys laws of reason that will allow 2+2 to equal 5. Can the same be said of halachic truth?
If I say "I have dark hair", that sentence is definitely true compared to everyone else in my family. In fact, it is true compared to a lot of other people. But if I moved to some desert island where everyone had pitch black tar colored hair, that true sentence would suddenly ring false. For certain statements, framework and context are necessary to establish meaning.
Instead of looking at halacha in absolute terms, perhaps statements need to be evaluated contextually.
Instead of using hefsed and tza'ar as examples, let me offer a different example. Assuming one lived in R' Eliezer's town and followed his opinion that machshirei milah are doche Shabbos, does it make sense to say that one is a mechalel Shabbos but procedurally Bais Din does not punish for that crime in these circumstances? Or does it make more sense to say that in the context of R' Eliezer's town, preparing machshirei milah on Shabbos is not considered chilul Shabbos?
To flip things l'kula and use a case Barzilai offers, if the majority of the world paskens agains the Tosfos RI"D and is not machshir "tein get al gabei sela", does someone who pasken like the Tosfos RI"D merely imfringe on a procedural rule, or has he violated a truism of hilchos ishus? I would contend the latter. If it's just a procedural rule that is violated, why does violating procedure here produce a mamzer, but violating procedure is other cases is just a lav?
I think there is one other approach one might take to address this problem. Truth values are relevant if we are discussing logocal statements, not if we are comparing values. Halacha is perhaps a value system, not a logic system. All things being equal, opinion X may reflect our values. But when in conflict with other more primary values such as the preservation of life, property, etc., perhaps opinion X must be sacrificed for the sake of preserving the greater good that the halachic system recognizes.
Good read Havolim - he has more to say than I can summarize and is always worth your time.
Friday, July 11, 2008
Bil'am's lack of bechira
I know there are plenty of explanations as to why Bil'am is punished for accepting Balak's offer when Hashem seemed to grant permission to go. What confuses me is the Rashi on 23:16 "Vayasem davar b'piv". Seeing that he could not curse Bnei Yisrael, Bila'am decides to call it quit, pack his bags and go home - show is over. "Not so fast!" says Hashem.
ומה היא השימה הזאת, ומה חסר המקרא באמרו שוב אל בלק וכה תדבר? אלא כשהיה שומע שאינו נרשה לקלל, אמר: מה אני חוזר אצל בלק לצערו. ונתן לו הקב"ה רסן וחכה בפיו כאדם הפוקס בהמה בחכה להוליכה אל אשר ירצה. אמר לו: על כורחך תשוב אל בלק
Like a horse led against his will, Hashem forced Bil'am to return to Balak and continue the charade.
What happened to bechira chofshis? If Bila'am really wanted to call it quits at that point, shouldn't he be able to stop? Everyone asks how Hashem could seem to deprive Pharoah if his bechira, yet no one to my knowledge asks the same question here. (I hate to suggest something simple like Rashi having a different concept of bechira than we do, but I'll throw it out there anyway. It would be interesting to see if whether there are indications from other Rashi's as to Rashi's views on bechira, but I'm short on time [as always lately]).
Update: Ironically enough, saw in a dvar Torah from Rav Yoram Eliyahu on the Machon Meir parsha sheet that the idea of "b'derech she'adam rotzeh leilech bo molichin oso" which we see expressed by Bil'am underscores the degree of bechira which we have.
מכאן אנו למדים עד כמה גורלו של האדם מסור בידו ותלוי אך ורק בו עצמו, ואין הוא יכול להאשים שום אדם במצבו הרע.
What he does with the aforementioned Rashi I have no idea.
ומה היא השימה הזאת, ומה חסר המקרא באמרו שוב אל בלק וכה תדבר? אלא כשהיה שומע שאינו נרשה לקלל, אמר: מה אני חוזר אצל בלק לצערו. ונתן לו הקב"ה רסן וחכה בפיו כאדם הפוקס בהמה בחכה להוליכה אל אשר ירצה. אמר לו: על כורחך תשוב אל בלק
Like a horse led against his will, Hashem forced Bil'am to return to Balak and continue the charade.
What happened to bechira chofshis? If Bila'am really wanted to call it quits at that point, shouldn't he be able to stop? Everyone asks how Hashem could seem to deprive Pharoah if his bechira, yet no one to my knowledge asks the same question here. (I hate to suggest something simple like Rashi having a different concept of bechira than we do, but I'll throw it out there anyway. It would be interesting to see if whether there are indications from other Rashi's as to Rashi's views on bechira, but I'm short on time [as always lately]).
Update: Ironically enough, saw in a dvar Torah from Rav Yoram Eliyahu on the Machon Meir parsha sheet that the idea of "b'derech she'adam rotzeh leilech bo molichin oso" which we see expressed by Bil'am underscores the degree of bechira which we have.
מכאן אנו למדים עד כמה גורלו של האדם מסור בידו ותלוי אך ורק בו עצמו, ואין הוא יכול להאשים שום אדם במצבו הרע.
What he does with the aforementioned Rashi I have no idea.
Thursday, July 10, 2008
hefker and the ptur of pe'ah from terumah and ma'aser
Pe'ah is exempt from any obligation to take terumah and ma'aser, but why that should be so is unclear. Rashi (Bava Kamma 28a) explains that pe'ah is hefker and all hefker is patur from tru"m. Tosfos rejects this possibility. The Mishna tells us that (acc. to Beis Hillel) hefker must be accessible to all, both rich and poor, but pe'ah is free only for the poor to take. Tosfos instead explains the ptur based on a gezeiras hakasuv. Kohanim and levi'im receive tru"m because "ain lo cheilek v'nachalah imach", they receive no portion in Eretz Yisrael. Since even kohanim and levi'im share the same rights to pe'ah it as everyone else, they have a "cheilek v'nachalah" and the reason for tru"m does not apply.
Recall that the Ketzos understood (according to the Rambam and Rashi) hefker to be no more than a type of neder by an owner not to use his property. Hefker creates a chovas hagavra to allow others access, but in no way changes the item itself, which is still considered in the owner's possession. R' Shimon Shkop (Sha'arei Yosher 5:23) points out that Rashi's explanation of the ptur of pe'ah seems to directly contradict the Ketzos. Why should the owner's chovas hagavra based on hefker exempt produce (which is still in his possession!) from the obligation of pe'ah?
Perhaps one might offer a bit of defense for the Ketzos. Perhaps the ptur from pe'ah is not dependent on everyone having actual rights to the produce b'poel, but merely the option b'koach to exercise the right to take the produce.
For those who want to dig a little deeper, basic pshat in Rashi and Tos here is hard to understand. Tosfos, at least in its hava amina, and certainly Rashi, seem to introduce the idea of hefker as an independent ptur from tru"um without a need for the additional gezeiras hakasuv of "ain lo cheilek v'nachala". Yet, Tosfos' themselves (Bava Kama 69a) note that the only reason hefker is exempt from ma'aser is because everyone has an equal right to take it, meaning the reason of "ain lo chelek v'nachala" is inapplicable. The ptur of hefker is not an independent din, but is based on the same gezeiras hakasuv Tosfos arrives it in their conclusion. Still don't have a good explanation for this point.
Recall that the Ketzos understood (according to the Rambam and Rashi) hefker to be no more than a type of neder by an owner not to use his property. Hefker creates a chovas hagavra to allow others access, but in no way changes the item itself, which is still considered in the owner's possession. R' Shimon Shkop (Sha'arei Yosher 5:23) points out that Rashi's explanation of the ptur of pe'ah seems to directly contradict the Ketzos. Why should the owner's chovas hagavra based on hefker exempt produce (which is still in his possession!) from the obligation of pe'ah?
Perhaps one might offer a bit of defense for the Ketzos. Perhaps the ptur from pe'ah is not dependent on everyone having actual rights to the produce b'poel, but merely the option b'koach to exercise the right to take the produce.
For those who want to dig a little deeper, basic pshat in Rashi and Tos here is hard to understand. Tosfos, at least in its hava amina, and certainly Rashi, seem to introduce the idea of hefker as an independent ptur from tru"um without a need for the additional gezeiras hakasuv of "ain lo cheilek v'nachala". Yet, Tosfos' themselves (Bava Kama 69a) note that the only reason hefker is exempt from ma'aser is because everyone has an equal right to take it, meaning the reason of "ain lo chelek v'nachala" is inapplicable. The ptur of hefker is not an independent din, but is based on the same gezeiras hakasuv Tosfos arrives it in their conclusion. Still don't have a good explanation for this point.
Wednesday, July 09, 2008
ya'akov avinu lo meis - david melech yisrael chai v'kayam
R' Kook has a long explanation of this point which I won't have time to write any time soon, but I will at least pass on his interesting diyuk which had never struck me before. Why is it that with respect to Ya'akov Avinu's eternal existance we use the phrase "Ya'akov Avinu lo meis" to , but with respect to David haMelech we use the phrase "David Melech Yisrael chai v'kayam"?
I told this to my son who is already being corrupted with Brisker tendencies and tried to formulate a difference between being "lo meis" and being "chai v'kayam", but as my wife noted, unless you are thinking of vampires as undead, it is hard to see how that approach would work. So something to puzzle over...
I told this to my son who is already being corrupted with Brisker tendencies and tried to formulate a difference between being "lo meis" and being "chai v'kayam", but as my wife noted, unless you are thinking of vampires as undead, it is hard to see how that approach would work. So something to puzzle over...
ma'aseh yadayim in exchange for mezonos
Posts are getting shorter because I have too much on my plate these days. Sorry!
The obligation of a husband to support his wife (mezonos) is a quid pro quo exchange for his right to collect whatever her earnings are (ma'aseh yadayim). The Bavli writes in many places that this takanah is for the women's benefit; should she choose to, she can declare that she wishes to keep her earnings and forfeit the husband's support. Just saw an interesting Yerushalmi at the beginning of the 11th perek of Kesubos seems to disagree and hold that she is bound to turn over her earnings to the husband in exchange for his support.
The obligation of a husband to support his wife (mezonos) is a quid pro quo exchange for his right to collect whatever her earnings are (ma'aseh yadayim). The Bavli writes in many places that this takanah is for the women's benefit; should she choose to, she can declare that she wishes to keep her earnings and forfeit the husband's support. Just saw an interesting Yerushalmi at the beginning of the 11th perek of Kesubos seems to disagree and hold that she is bound to turn over her earnings to the husband in exchange for his support.
Monday, July 07, 2008
double, double, toil and trouble - free summer shakespeare
Last year I wrote about New York Classical Theatre’s free summer Shakespeare and their workshops for kids. Last night we went to see their performance of Macbeth at Castle Clinton in Battery Park, though we did not go for the workshop. I happen to think the Castle Clinton location is nicer than the space they use in Central Park – fewer mosquitos. As for the play itself, I thought it was nicely done. The chap of NY Classical’s performances is that instead of everyone sitting in one spot and watching the actors perform on a stage or lawn, the actors move through the park from scene to scene and the audience follows. Last night we were part of a fairly large audience and there was a lot of movement from place to place, so you had over a hundred people running from spot to spot to keep up with the actors. The kids loved it, but my wife thought the constant movement disrupted the continuity of some scenes. I brought a copy of the play with me, so it was easier for me to follow, and would advise the same if you choose to go. Our experience has been that If you want to catch the classic Public Theatre performance of Shakespeare in the Park, be prepared to give up half of your day waiting on line to get tickets, and get ready for a long night because those performance start at 8:00 and end late. I must admit that the few performances we have caught have been amazing, with a lot of spectacle to jazz things up. On the other hand, if you are willing to sit through a more plain vanilla Shakespeare while gaining the flexibility of being able to show up 10 minutes before the play starts and bring along your kids to expose them to some Shakespeare, these NY Classical park performances are a great opportunity to enjoy some free theatre. Performances start at 7:00 and Macbeth was done by about 8:45, so you will even make it home in time for a late ma’ariv.
hefker (iv)
Last week I focused on the Ketzos’ understanding of hefker as a form of neder which allows others access to one’s property without actually surrendering ownership. This understanding was implied by the Rambam’s statement:
ההפקר אף על פי שאינו נדר הרי הוא כמו נדר שאסור לו לחזור בו
R’ Shimon Shkop (Sha'arei Yosher 5:23) strongly disagrees with the Ketzos’s approach. R’ Shimon’s simplest argument stems from terminology – if hefker is just another flavor of neder, then why introduce a new term to describe it? But R’ Shimon’s disagreement is about more than semantics. The Mishna in Shvi’is presents a debate between Beis Shamai and Beis Hillel whether one can be mafkir property only to the poor to the exclusion of the rich. The Yerushalmi provides derashos as the basis of both positions. If hefker is just another form of neder, why would one not be able to be mafkir something only to the poor or only to the rich just as one can make a neder excluding a particular person from having hana’ah from an item? Why would the Yerushalmi need derashos when we already have a parsha of nedarim?
Some other interesting proofs R’ Shimon offers: a non-Jew can declare property hefker, but is not obligated to fulfill nedarim. It is possible to be sho’el on a neder and retroactively undo it, but it is not possible to be sho’el on hefker (see Ran Nedarim 85a).
Interestingly, the GR”A makes a girsa change in the Rambam that also suggests hefker in not exactly the same as neder. The Rambam as we have it says “asur lachzor bo”, it is prohibited to retract hefker, ostensibly meaning the same prohibition of bal yacheil which prohibits not fulfilling a neder applies here. The GR”A’s text of the Rambam reads “aino yachol lachzor bo”, one is unable to retract hefker, meaning that unlike nedarim, there is no issur of retracting, but nonetheless it may not be done.
ההפקר אף על פי שאינו נדר הרי הוא כמו נדר שאסור לו לחזור בו
R’ Shimon Shkop (Sha'arei Yosher 5:23) strongly disagrees with the Ketzos’s approach. R’ Shimon’s simplest argument stems from terminology – if hefker is just another flavor of neder, then why introduce a new term to describe it? But R’ Shimon’s disagreement is about more than semantics. The Mishna in Shvi’is presents a debate between Beis Shamai and Beis Hillel whether one can be mafkir property only to the poor to the exclusion of the rich. The Yerushalmi provides derashos as the basis of both positions. If hefker is just another form of neder, why would one not be able to be mafkir something only to the poor or only to the rich just as one can make a neder excluding a particular person from having hana’ah from an item? Why would the Yerushalmi need derashos when we already have a parsha of nedarim?
Some other interesting proofs R’ Shimon offers: a non-Jew can declare property hefker, but is not obligated to fulfill nedarim. It is possible to be sho’el on a neder and retroactively undo it, but it is not possible to be sho’el on hefker (see Ran Nedarim 85a).
Interestingly, the GR”A makes a girsa change in the Rambam that also suggests hefker in not exactly the same as neder. The Rambam as we have it says “asur lachzor bo”, it is prohibited to retract hefker, ostensibly meaning the same prohibition of bal yacheil which prohibits not fulfilling a neder applies here. The GR”A’s text of the Rambam reads “aino yachol lachzor bo”, one is unable to retract hefker, meaning that unlike nedarim, there is no issur of retracting, but nonetheless it may not be done.
Thursday, July 03, 2008
4th of July reading - a Franklin bio
For your 4th of July reading, I recommend The Americanization of Benjamin Franklin by Gordon Wood. (I have not read Walter Isaacson’s Franklin bio, but do have it on my to-do list). I decided to tackle Wood’s Franklin bio after reading and enjoying his Revolutionary Characters and The Purpose of the Past . Wood goes beyond general narrative history and poses interesting questions; he tends to be conservative in his arguments and thoughtful in his analysis. In this bio Wood peels away the myth of Franklin as a self-made man, the father of Poor Richard’s folk wisdom, a capitalist hero from the working class, the most “American” of the founders, to reveal a very different Franklin. Wood’s Franklin is a man who succeeds with the help of sponsors, a man who is very much celebrated as an intellectual, a man more at home in Europe, both in England and France where he lived for long periods, than in America, and a man of wealth, a "gentleman" (with all that the term connoted in the 18th century), rather than a simple laborer. It is only 19th century and later America which created a different Franklin to meet the need for a hero more in concert with the image of America at that time. I ended up having a new appreciation for Franklin, as the "real" Franklin is more appealing in some ways that the myth. Read it and decide for yourself.
Torah is the ONLY antidote to the yetzer
I have slowly been making my way through some of R' Elchanan's ma'amarim and found an interesting thought in the name of the Chofetz Chaim. "Bara'si yetzer hara, barasi torah tavlin" means, says the C.C., that Torah is the only antidote to the yetzer hara.
R' Elchanan explains: Contrary to popular belief, the yetzer hara does not really mind if you do mitzvos. What community does not have a bikur cholim, a chessed fund, tzedaka organizations, etc.? And people give time and effort to these projects! The reason why it is so easy to dedicate time and effort to these causes is because the yetzer hara does not mind. But, when it comes to talmud torah, the yetzer hara is on guard; the yetzer knows that only talmud torah can bring his downfall. Someone who truly devotes himself to torah study [and I assume he means a regular guy, not someone in kollel who has nothing else to do] is a rare trasure and an uncommon sight even within our frum communities.
R' Elchanan explains: Contrary to popular belief, the yetzer hara does not really mind if you do mitzvos. What community does not have a bikur cholim, a chessed fund, tzedaka organizations, etc.? And people give time and effort to these projects! The reason why it is so easy to dedicate time and effort to these causes is because the yetzer hara does not mind. But, when it comes to talmud torah, the yetzer hara is on guard; the yetzer knows that only talmud torah can bring his downfall. Someone who truly devotes himself to torah study [and I assume he means a regular guy, not someone in kollel who has nothing else to do] is a rare trasure and an uncommon sight even within our frum communities.
migu and gilgul shevu'ah
My son asked me if someone who is exempted from a shevu'ah because he has a migu can be forced to take that same shevu'ah through gilgul. What he seemed to be driving at is whether migu removes the chiyuv shevu'ah or whether it just prevents Beis Din from administering the shevu'ah, but the chiyuv remains. (I assume someone might also flip the chakira into a question about the geder of gilgul shevu'ah, but that approach is not so clear to me and was not the direction my son was headed anyway). I could not think of a case offhand that would provide an answer. Since my brainpower is fading, I figured I would throw it out here…
Wednesday, July 02, 2008
hefker (III)
The machlokes (see yesterday’s post) between Rashi and Tosfos whether hefker simply means others have the right to take an object or whether it is an actual hakna’ah out of the owner’s reshus helps explain another machlokes Rashi and Tosfos which we discussed Pesach time. Rashi (Pesachim 4) writes that bitul chameitz is a fulfillment of the mitzvah of tashbisu. Tosfos, however, disagrees and says that bitul is simply a way of declaring chameitz to be hefker, eliminating the need to dispose of it and fulfill tashbisu.
The Ketzos explains that Rashi could not possibly explain bitul using the model of hefker. According to Rashi, hefker is simply a pledge which grants others the right to take an object. Even if one is mafkir chameitz, as long as no one has yet taken it, it is still considered in the possession of its original owner who would therefore be in violation of bal year’eh. Only because bitul is considered an act of destroying chameitz does is have any effect.
A similar machlokes with respect to chameitz that may hinge on this issue is whether a shliach can be appointed to do bitul. The Ran writes that shlichus does not work because one cannot appoint a shliach to be mafkir one’s property. The Beis Yosef disagrees and distinguishes between bitul chameitz and other forms of hefker. If hefker is a form of neder (coming back to the Rambam’s formulation), then just as one cannot appoint a shliach to take a neder on one’s behalf, one cannot appoint a shliach to be mafkir on one’s behalf. But if bitul is not a form of hefker (or if it is a different type of hefker that functions more like a real kinyan), then there is more of a reason to allow shlichus in that context.
The Ketzos explains that Rashi could not possibly explain bitul using the model of hefker. According to Rashi, hefker is simply a pledge which grants others the right to take an object. Even if one is mafkir chameitz, as long as no one has yet taken it, it is still considered in the possession of its original owner who would therefore be in violation of bal year’eh. Only because bitul is considered an act of destroying chameitz does is have any effect.
A similar machlokes with respect to chameitz that may hinge on this issue is whether a shliach can be appointed to do bitul. The Ran writes that shlichus does not work because one cannot appoint a shliach to be mafkir one’s property. The Beis Yosef disagrees and distinguishes between bitul chameitz and other forms of hefker. If hefker is a form of neder (coming back to the Rambam’s formulation), then just as one cannot appoint a shliach to take a neder on one’s behalf, one cannot appoint a shliach to be mafkir on one’s behalf. But if bitul is not a form of hefker (or if it is a different type of hefker that functions more like a real kinyan), then there is more of a reason to allow shlichus in that context.
Tuesday, July 01, 2008
hefker (II)
Yesterday’s post raised Tosfos’ question (Bava Metziya 12): how can Rashi compare a case where someone is mafkir a ball and tosses it through a chatzeir to a case where the ball is thrown with da’as makneh, intent for it to be caught by a specific individual? The key to understanding Rashi involves unraveling the Rambam’s (Nedarim 2:14) definition of hefker. Rambam writes:
ההפקר אף על פי שאינו נדר הרי הוא כמו נדר שאסור לו לחזור בו. ומה הוא ההפקר הוא שיאמר אדם נכסים אלו הפקר לכל. בין במטלטלין בין בקרקעות. וכיצד דין ההפקר כל הקודם וזכה בו קנהו לעצמו ונעשה שלו. ואפילו זה שהפקיר דינו בו כדין כל אדם אם קדם וזכה בו קנהו
The simple reading of the Rambam implies that hefker is a form of neder through which the owner of property surrenders the right of ownership. The Bac”h goes so far as to suggest that retracting hefker violates the same issurim (bal yacheil, etc.) as violating a neder.
Using the Rambam’s model, there is no contradiction between declaring something hefker and having da’as makneh. Hefker simply removes the rights of the current owner; it does not say anything about who the new owner might be or who the original owner might want it to be.
Coming back to Rashi and Tosfos, their dispute might be explained as follows: According to Tosfos, hefker is itself a form of kinyan which transfers an item out of the owner’s possession. There can be no da’as makneh once hefker has taken effect. According to Rashi and the Rambam, hefker is a pledge by the owner not to use an object, but it does not transfer it out of the owner’s possession. It is still possible to have da'as makneh of the original owner.
ההפקר אף על פי שאינו נדר הרי הוא כמו נדר שאסור לו לחזור בו. ומה הוא ההפקר הוא שיאמר אדם נכסים אלו הפקר לכל. בין במטלטלין בין בקרקעות. וכיצד דין ההפקר כל הקודם וזכה בו קנהו לעצמו ונעשה שלו. ואפילו זה שהפקיר דינו בו כדין כל אדם אם קדם וזכה בו קנהו
The simple reading of the Rambam implies that hefker is a form of neder through which the owner of property surrenders the right of ownership. The Bac”h goes so far as to suggest that retracting hefker violates the same issurim (bal yacheil, etc.) as violating a neder.
Using the Rambam’s model, there is no contradiction between declaring something hefker and having da’as makneh. Hefker simply removes the rights of the current owner; it does not say anything about who the new owner might be or who the original owner might want it to be.
Coming back to Rashi and Tosfos, their dispute might be explained as follows: According to Tosfos, hefker is itself a form of kinyan which transfers an item out of the owner’s possession. There can be no da’as makneh once hefker has taken effect. According to Rashi and the Rambam, hefker is a pledge by the owner not to use an object, but it does not transfer it out of the owner’s possession. It is still possible to have da'as makneh of the original owner.
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