shlichus and zechiya

I am admittedly biased in thinking of the Brisker derech as a the key to learning, but have been trying to push myself to appreciate and understand more of R' Shimon Shkop's derech. I haven't gotten down the Sha'arei Yosher enough to predict what he might say on a sugya, but at least I can say with some degree of confidence that the word "sibah" will appear somewhere in the explanation. My chavrusa has suffered though some of the first sha'ar with me, and my son has been a guinea pig for learning through some other scattered pieces. This almost led to the unintended consequence of my son coming to the conclusion that R' Shimon was brilliant and that this Brisker stuff did not have much to offer. Baruch Hashem, a few months more maturity in his learning has led him to see the light. This past Shabbos he told me that he found a R' Baruch Ber that addresses the exact gemara we had previously discussed in a piece in Sha'arei Yosher and (of course!) R' Baruch Ber's approach was far superior. Here is the sugya:

The gemara (Bava Kama 102b) discusses a case where a shliach charged with purchasing goods changes the order and purchases a different item. For example, Reuvain is charged with buying wheat for Shimon, and instead purchases barley. According to one braysa, if the price of barley goes up, Shimon still collects a share of the profit. Why? One explanation offered is that this braysa follows the view of R' Yehudah that shinuy eino koneh, and the shliach's change does not make him the owner of the barley.

The Bnei Ma'arava laughed at this explanation -- true, shinuy aino koneh, but the barley seller thinks he/she is selling barley to Reuvain (the shliach), not Shimon. How does Shimon come to own the barley if there is no da'as makneh to sell barley to him?

The gemara retorts: but even if Reuvain correctly carries out his shlichus and buys wheat for Shimon, there is no da'as makneh to sell wheat to Shimon -- the seller only knows about Reuvain and thinks he/she is selling to him!

R' Abahu replied that the point of the Bnei Ma'arava is valid. If Reuvain correctly carries out his charge, he fulfills the criteria of shlichus. Only if Reuvain changes the terms of his charge and is no longer acting as a shliach does the question of seller's intent (da'as makneh) come into play.

A little elaboration before getting to the heart of the problem: The halacha is that zachin l'adam shelo b'fanav, an person can aquire something on another's behalf without being officially appointed an agent provided there is no downside. In our case, even if Reuvain gets the order wrong, since there is only an upside gain, Reuvain should theoretically be able to act through zechiya as Shimon's agent even unappointed. The barley should belong to Shimon, who would share in the profit. So why do the Bnei Ma'arava assume that a lack of proper da'as makneh, the fact that the seller thought he/she was selling to Reuvain and not Shimon, is a fatal flaw in this theory of zechiya that allows Reuvain to act as Shimon's agent, but if Reuvain correctly fills the order as charged, acting as Shimon's appointed agent through the theory of shlichus, the issue of da'as makneh, who the seller thought he was selling to, is irrelevant ? In both cases Reuvain is acting on behalf of Shimon -- shouldn't the same rules of kinyan apply to both scenarios?

The punchline of the sugya and the distinction being drawn opens the door to explaining other issues, but you need this as a starting point. If you are a Telzer, see Sha'arei Yosher end of 7:7. If you are a Brisker, see Birchas Shmuel in Kiddushin 15:4.

hidur vs. zerizus

It's Sukkos morning and you are stuck with a non-mehudar esrog, but if you just wait until after davening, you will be able to obtain a mehudar esrog for the mitzvah of netilas lulav. Is it better to fulfill the mitzvah of lulav as soon as possible in a zerizus manner even with a non-mehudar esrog, or is it better to wait to obtain the nicer esrog and fulfill the mitzvah in a mehudar manner at the cost of sacrificing zerizus?


The Gilyon Mahrasha in Yoma quotes the following proof from the Shvus Ya'akov: If the members of a beis av of kohanim are tamei, the gemara (Yoma 6) quotes a machlokes whether tumah hutra b'tzibur and those kohanim can still offer korbanos tzibur, or tumah dechuya b'tzibur and other kohanim should be called to offer the korban in their place. Even though there will be a delay in calling in those substitute kohanim, the gemara assumes that a delayed korban offered b'taharah is preferable to offering the korban immediatly b'tumah. QED, says the Shvus Ya'akov, it is better to delay a mitzvah a fulfill it in a mehudar manner than to fulfill it immediatly b'zerizus in a less than mehudar fashion.

I am not sure I see the comparison between the two cases. If tumah dechuya b'tzibur, offering the korban b'tumah is not just a less than ideal kiyum mitzvah - it is not a mitzvah at all! To take a different example, if one assumes Shabbos is dechuya with respect to a dangerously ill choleh (and not hutra), accomplishing the task of pikuach nefesh by using fewer melachos is not just an ideal, but it is the only permissabel option - to perform more melacha than necessary would be chilul Shabbos. The same is not true with respect to the case of the esrog, where one fulfills the mitzvah of esrog whether done b'hidur or not. Hidur may be an ideal, but is it worth the delay where there is a kiyum mitzvah anyway?

arei miklat

The Torah in Parshas Eikev ascribes the burial of Yosef to the Jewish people even though it was Moshe alone who made sure Yosef’s bones were removed from Egypt and transported to Eretz Yisrael. Rashi explains that “mitzvah nikreis al shem gomra”, it is the completion of the mitzvah which garners credit, and since Bnei Yisrael and not Moshe completed the burial process, they earn the credit.

Someone in shul asked whether this Rashi does not contradict the Rashi in P’ VaEschanan (4:41) which explains that Moshe designated 3 cities of refuge / arei miklat in Eiver haYarden even though those cities would not serve as a refuge until after the additional three cities in Eretz Yisrael were also designated. Moshe wanted to do as much as he could of the mitzvah even if he could not finish the job.

I think there is a difference between the question of who gets credit and the necessity of putting in maximal effort even if one's efforts go unrewarded and unacknowledged. On a deeper level, I think there is perhaps a lomdish distinction between the Rashis. The burial of Yosef called for the accomplishment of a single act; the mitzvah was incomplete until that act is concluded. True, the arei miklat would not serve as refuge until all six cities were designated, but the designation of each individual city was a discrete act and perhaps a mitzvah in its own right.

Carrying this logic a bit further, we can perhaps distinguish two different elements of arei miklat: 1) the shem ir miklat, a status which results from the city being designated; 2) the actual ability of the city to protect a murderer b’shogeg who flees there. The cities Moshe designated fulfilled the former characteristic but not the latter -- they had the status of arei miklat by virtue of Moshe's designation, but did not yet offer protection. Similarly, one might question with respect to other halachos of ir miklat whether they relate to the shem ir miklat or whether they relate to the functional ability of the city to offer refuge. For example, the halacha is that the city of refuge must contain zekeinim, a beis din of some sort (exactly what type is unclear). Is that a defining characteristic of the shem ir miklat, or a condition of the city serving as refuge? The Minchas Chinuch raises a safeik which may hinge on this question: if a murderer flees to a city with zekeinim but then those zekeinim leave, must the murderer now take refuge in a different city? If the presence of zekeinim are a condition of the city serving as refuge, then their absence opens the murderer to fatal harm. However, if the presence of zekeinim serve to establish the shem ir miklat, then perhaps their presence is necessary only at the time of the city’s establishment, but not forever after.

R' Chaim's yahrzeit

Today, 21 Av, is R' Chaim's yahrzeit. (My son half-humorously asked if we should skip tachanun). Just thought I would pass that along.

why shema has no time limit at night but does during the day

The mitzvah of reading kri’as shema at night which we learn from the pasuk of “b’shachbecha” can be fulfilled at any time during the night (on a d’oraysa level), but when it comes to the mitzvah of reading shema during the day, which we learn from the pasuk of “uvkumecha”, the mitzvah can only be fulfilled until the third hour of the day. Why is there a difference between the two?

The Sefer haChinuch explains that Chazal understood “b’shachbecha” to mean any time that people go to sleep. There are a great many night owls who keep late hours and who sometimes retire closer to what most of us consider morning than night. However, rarer still is the person who sleeps in all day. Therefore, Chazal understood “uvkumecha” to mean only the morning hours, when most people wake up.

The Kesef Mishna in Hil Krias Shema raises the same question and disagrees with the Chinuch. He writes that min hatorah there is no difference between day and night – krias shema can be recited all day as well as all night. It is only a derabbanan mandate to finish k.s. of the day by the third hour. His proof: even if one reads krias shema after the proper time, the brachos krias shema can stil be recited. If min hatorah there is no kiyum mitzvah, how could one say brachos? (It seems implicit in his argument that brachos k”s are birchos hamitzvah, an interesting (and debatable) chiddush for another time.)

The Magen Avraham attacks the KS”M. If the obligation of shema applies all day and all night, then there is never a moment during which the mitzvah does not apply. Why then is krias shema considered a zman gerama mitzvah from which women are exempt?

The Sha’agas Arye (siman 12) addresses this question in the midst of a discussion of whether women are chayavos in the mitzvah of zechiras yetziyas Mitzrayim or not. The Sha’agas Arye at first contends that women are chayavos, as the mitzvah can be fulfilled during the entire day and then again during the entire night – there is no time that the mitzvah of zechira does not apply, so it is not zman gerama. However, the S.A. then backtracks. From the fact that women are exempt from reciting shema, which is the means by which we fulfill zechiras yetziyas Mitzrayim, it seems that they have no mitzvah of zechira (otherwise we would expect at least a Rabbinic enactment formalizing some recitation). But why are they exempt? The S.A. concludes that the mitzvah of zechira must in the end be zman gerama. Although the obligation to remember yetziyas Mitzrayim is continuous, in fact, the mitzvah really consists of two separate obligations which happen to coincide and come back to back with each other – an obligation of zechira during the day, which can only be fulfilled during the day, and an obligation of zechira at night, which can only be fulfilled at night. Since each independent obligation is limited in scope to a set period of time, although the gavra, the person, remains under a continuous obligation to remember yetziyas mitzrayim, these are considered independent zman gerama obligations.

The same logic applies to the mitzvah of reading shema. True, a person at any given moment may fulfill the mitzvah of reciting shema - either the shema of day or the shema of night - still, these are two seperate obligations and each one is limited in scope to being fulfilled at only one set time period.

the text of aseres hadibros

On Shabbos my wife wondered about the fact that certain commandments in aseres hadibros are quite verbose, e.g. the mitzvah of Shabbos includes a wordy elaboration on the reason for the mitzvah, while other commandments are stated very succinctly, e.g. lo tignov, where the whole mitzvah consists of two words. My son mentioned that he heard from R’ Y. Perr, the RY of Yeshiva of Far Rockway, who heard from R’ Matisyahu Solomon quoting someone else who he didn’t remember, that the size of the letters on the two sides of the tablets of the aseres hadobros must have been unequal to preseve the physical balance in size. If the mitzvah of Shabbos was written in small writing and the mitzvos of “lo tignov”, “lo tirtzach”, etc. were written in large letters, even though the mitzvah of Shabbos contains more words, it would not take up more space on the tablet, and thus the two halves of the dibros could kept in symmetrical physical proportion.

My wife had an ingenious insight that helps not only explain how proprtion could be maintained despite the difference in word count, but also explains a difficult gemara in Bava Kamma. She suggested that the verbosity of certain commandments was perhaps an embellishment by Moshe Rabeinu (of course, as taught by Hashem, just like the rest of Sefer Devarim), but not actually written on the tablets of the dibros. Perhaps the mitzvah of Shabbos was written in some short, pithy form just like “lo tignov”, but Moshe Rabeinu was told to explain and expand on the mitzvah and provide the details which we read as part of the commandment.

This perhaps sheds light on the amazing dialogue between Amoraim in Bava Kama 54b. R’ Chanina ben Agil asked R’ Chiya bar Aba why the first instance of aseres hadibros does not contain the bracha of “ki tov” (i.e. “l’ma’am yiotav lach” by kibud av, as Rashi explains) while the second dibros do. R’ Chiya replied that before asking him why the dibros contain this bracha, first one must ask whether these words are actually in the pasuk, as he, R’ Chiya, is not sure that they are.

The entire discussion is a pliya. Tosfos (Baba Basra 113) makes the startling claim based on this gemara that the Amoraim did not always know the text of a pasuk in Chumash perfectly. Whatever Tosfos means, such an idea is very hard to swallow – we are, after all, talking about the aseres hadibros! How could R' Chiya not be sure what words are in or not in the pesukim?

Based on my wife’s suggestion, the gemara reads beautifully (see the Kli Chemdah who also suggests this possibility). The Amoraim knew full well what the text of the pesukim in Chumash said with respect to each list of the dibros. What the Amoraim did not know was whether the differences between the first iteration and the second reflect differences as to the actual text engraved on the physical tablets, or whether those differences were simply different nuances in Moshe Rabeinu’s explication, but the text of the tablets was identical. Before asking why “ki tov” appears in the description of one set of tablets and not the other, we have to first ascertain whether these words appeared on the physical tablets at all!

two parsha topics: lo tisaveh and siyagim d'oraysa; the mitzvah of yichud Hashem

Some quick he’oros (just in case any of you forget I’m still here : )

1. The Sefer haChinuch writes that the mitzvah of “lo tisaveh” (coveting that which belongs to another) is a protective safeguard; it ensures that a person will not be tempted to steal his/her neighbor’s property. This is not just an exegesis of ta’amei hamitzvos, but creates a nafka minah l’halacha: since theft is prohibited even for a non-Jew, the mitzvah of lo tisaveh applies to non-Jews as well. R’ Yosef Engel in his sefer Lekach Tov questions whether siyagim, prohibitions which exist to safeguard against more severe infractions, are all Rabbinic in nature, or whether a mitzvah or issur d’oraysa can be a siyag. This is a nice example of a siyag s’oraysa.

2. The Minchas Chinuch writes that the mitzvah of yichud Hashem applies to non-Jews as well. The Rama (O.C. 156) famously writes based on Tosfos in Sanhedrin 63 that there is no issur of shituf for a non-Jew, but achronim take issue with this reading of Tosfos. Be that as it may, with respect to the necessity of belief, the Sefer haChinuch writes that even if someone behaves with midos tovos and is otherwise observant, he/she receives absolutely no credit for his/her good deeds absent the foundation of belief. In other words, othopraxy is meaningless without orthodoxy. A footnote in the new edition of the M.C. cites a similar comment of Ramban in his introduction to Sefer Iyov. What is striking about the Ramban is the example he gives – his illustration of a non-believer is someone who believes in “kadmus ha’olam”, i.e. someone who thinks the world has always existed and was not created by G-d. We could get into a whole Moreh Nevuchim / Ramban debate here, but I don’t have time for it.

aninus, 9 Av mourning, and seudah hamafseket on Shabbos

On erev tisha b’Av we stop eating at shkiya (about 8:00 where I live in NY), but according to most Rishonim the prohibitions of aveilus such as not wearing leather shoes are not observed until nightfall. The Ramban, however, writes that the prohibition of bathing as beginning at shkiya and questions why the R”IF neglects to mention this halacha.

To explain this difference of opinion, the Brisker Rav suggested that mourning which we mark as we enter 9 Av and eat our final seudah hamafseket is patterned after the practices of aninus, the intense period of mourning between death and burial. Chazal poignantly describe how Tanaim would sit next to the furnace in their home, a lowly, isolated place, and eat in isolation, allowing themselves to become fully steeped in the somber mood of the day.

During the period of aninus the mourner is exempt from all mitzvos and is assumed to be completely involved in making the necessary preparations for the burial of the deceased. According to the Rambam the onein is exempt even from the obligations of mourning; the Ramban disagrees and holds that the negative prohibitions of mourning do apply.

The Brisker Rav suggests the dispute regarding bathing after seudah hamafesket as l’shitasam of this dispute regarding aninus. The Ramban who holds that even an onein is obligated in the prohibitions of mourning l’shitaso prohibits bathing from the moment seudah hamafseket concludes and the pseudo-aninus period of 9 Av begins. Rambam (and RI”F, according to the Brisker Rav’s understanding) who exempts an onein even from obligations of mourning does not prohibit bathing until nightfall. [Note: a similar analysis appears in the Keren Orah. The Brisker Rav's chiddush is actually a little different than what I presented here, so please see it in the original.]

The problem with this approach is that it does not seem to fit the words of the Ramban. Ramban tells us why he prohibits bathing – he writes that if one were to shower immediately before the fast, one would inevitably enjoy that refreshing afterglow of feeling clean and refreshed on the fast itself. Therefore, bathing and bathing alone is prohibited from even before the fast starts.

Given the reasoning presented by the Ramban, we perhaps have a new insight into why the seudah hamafseket is limited to a sparse meal. Were a heavy meal to be ingested immediately before the fast, it would lead to the experience of satiation and enjoyment extending into the fast itself, interfering with our experience of aveilut.

R’ Shternbruch in Moadim u'Zmanin (vol 5) goes a step further and suggests that in light of this Ramban we perhaps have an insight into why even on Shabbos we might temper our eating at the conclusion of the day and eat a small seudah hamafseket. The seudah hamafseket is not in and of itself connected with aveilus, but is simply a way to avoid indulging in a way that would lead us to experience the pleasure of satiation after Shabbos is over.

Again, reading the Tur’s presentation of the Avi Ezri’s justification of eating seudah hamafseket on Shabbos (which R’ Shternbruch makes no reference to) does not seem to me to support this approach. The TUr's language seems to indicate that the Avi Ezri’s aim was in fact to mark aveilus in some way - “m’shum churban” - Shabbos notwithstanding. This seems to be part of a broader pattern of practicing aveilus of 9 Av despite it being Shabbos. Two other practices which come to mind: The Rama quotes the minhag to not wear Shabbos clothes on Shabbos Chazon (a practice the GR”A opposed), and the minhag of many communities is to sing “Lecha Dodi” with the kinos tune of “Ali Tzion”.

My hunch is that these opinions view obligations of aveilus as stemming from the character of the day, the kedushas hayom, so to speak, much like the character of Yom Tov creates certain obligations of simcha. Demonstrating aveilus on Shabbos is not just an issur gavra imposed on the individual, but stems from the recognition that the kedushas hayom of Shabbos inherently in antithetical to mourning and sadness. Shabbos is a day of bracha (see Tosfos M.K. 23a quoting Yerushalmi). However, Shabbos Chazon is an exception. The special name we give to this Shabbos is not just to remind us of the haftarah, but perhaps indicates that the kedushas hayom of this Shabbos is different, and is impacted by the mourning period that it falls within. Derech derush perhaps one could say that Shabbos itself is in morning with us.

If our mourning can impact the kedushas hayom of Shabbos, perhaps one might argue as well that the scale can be tipped in the opposite direction and the kedushas hayom of Shabbos can impact our mourning. Perhaps this Shabbos Chazon will be the Shabbos that we will once again experience v'techezeina eineinu b'shuvcha l'Tzion b'rachamim.

Kol hamisabeil al Yerushalayim zoche v'ro'eh b'simchasa...

seudah hamafseket on Shabbos?

The Tur (552) quotes the Avi Ezri as holding that on Shabbos immediatly before 9 Av starts(meaning, when 9 Av is on Sunday) the minhag is to eat a regular seudah shlishis and then to eat a seudah hamafesket like on any other erev 9 Av. Even though, explains the Tur, one is permitted to eat meat and drink wine "afilu k'seudas Shlomo" on Shabbos before 9 Av without restriction, who says one has to eat such a seudah? In keeping with the spirit of commemorating churban habayis, one can choose to forgo indulging oneself and instead end the day with a subdued and minimal seudah hamafseket.

The Tur disagrees based on the gemara’s din (Moed Katan 2b3) that a public display of aveilus is prohibited on Shabbos. If one sets out to eat a meal designated specifically to commemorate the aveilus of churban habayis, isn’t that a public display of mourning? The Tur ends the siman by quoting the minhag of his father the Rosh to not eat a seudah hamafseket on Shabbos.

How can one explain the position of the Avi Ezri? Perhaps the A”E considered seudah hamafseket, which the minhag is to eat privately, devarim sheb’tzina, rather than public mourning, and Shabbos does not suspend private mourning.

In a more lomdish vein, perhaps one might explain the machlokes based on the chiddush of the Emek Bracha that the day of tisha b’av is marked by two overlapping themes: aveilus and ta’anis (see Rabbi Maroof’s article here). Each of these halachic themes is demarcated by similar practices of avoiding eating, drinking, wearing shoes, bathing, and having relations (see the Emek Bracha for nafka minos between the two). Within this framework, we might ask how to categorize the seudah hamafseket preceding the fast – is it part of the obligations of a ta’anis tzibur, or is it a special aspect of 9 Av mourning? If seudah hamafseket is part of the obligations of ta’anis, then just as we stop eating while it is yet still Shabbos, we perhaps may eat such a seudah to culminate our preparation for the fast on Shabbos as well. However, if the seudah is part of the obligations of aveilus, it could not be held on Shabbos.

The lomdus sounds nice, but I don’t think it fits the words. The whole point of the seudah (for those Rishonim who opine that it should be eaten even on Shabbos) is to try to demarcate our mourning in some small way even on Shabbos itself. It is for the sake of commemorating churban and not just because of the chiyuv ta'anis.

pregnant / nursing women fasting

This article http://www.ynet.co.il/articles/0,7340,L-3575177,00.html cites R’ Nachum Rabinovitch of Yeshivat Ma’aleh Adumim as allowing pregnant (after 5th month) or nursing mother to eat on 9 Av because these women are categorically to be treated as cholos (hat tip to Mother in Israel).

A bit of background: the gemara (Pesachim 54) writes that on Yom Kippur and 9 Av all pregnant or nursing women must fast. The implication drawn by some some Rishonim is that pregnant or nursing women are exempt from fasting on other fast days. The Rishonim differ as to whether that amounts to a blanket dispensation, or whether these women should try to fast and only eat if necessary for their health or the health of the nursing child (see Bais Yosef siman 594).

Someone who is too ill to fast is permitted to eat on 9 Av because the Rabbinic enactment of fasting was never imposed upon someone who is sick.

Having not seen the sefer I am not sure how to understand this psak of R’ Rabinovitch. Does he assume that all women in our times who are pregnant or nursing are categorically defined as “cholos” for whom no obligation to fast exists? I would have thought that if fasting was not risky for pregnant or nursing women living 1500 years ago it, that the risk has declined, not increased, with the advent of modern standards of pre-natal care and nutrition. A more interesting possibility would be to argue that even if the actual risks of pregnancy have not increased, our sensitivities toward what constitutes acceptable risk and good health has changed. 1500 years ago, pre-natal care may not have recognized the risk of fasting, or associated those risks with birth or health complications. Today, we know better. Should we take Chazal’s statement obligating pregnant and nursing women to fast as binding irrespective of these changes in medical knowledge / practice, or should we look at the statement as sensible in the given context of medical knowledge of 1500 years ago, but which may change over time? In other words, in lomdish terms, is the gemara a din or a metziyus -- is it a legal rule that absolutely binds all women to fast, or is the gemara simply a statement about what Chazal assumed to be the lack of health risks in fasting? A legal umdena seems to me to be far more inflexible than a medical one (and even there, I'm not sure).

What do you think?

the Bnos Tzlofchad's marriage choice

Unless you were already privy to the interpretation of Chazal, I think you would read these pesukim (36:6-7) at the end of last week’s parsha
לַטּוֹב בְּעֵינֵיהֶם, תִּהְיֶינָה לְנָשִׁים אַךְ לְמִשְׁפַּחַת מַטֵּה אֲבִיהֶם--תִּהְיֶינָה לְנָשִׁים
to mean that the Bnos Tzlofchad could marry anyone they desired, provided that their chosen spouse was also a member of their sheivet (see Rashbam who presents this reading as pshat).

Chazal, however, interpret the pesukim to mean that the Bnos Tzlofchad were permitted to marry anyone whom they chose, without any limitation on which sheiveit their spouse was a member of. Only other women inheriting a portion were bound by the condition to choose a spouse from their sheiveit alone.

In light of Chazal’s reading, it is interesting to see how the Torah describes the actions of Bnos Tzlofchad:

כַּאֲשֶׁר צִוָּה ה אֶת-מֹשֶׁה, כֵּן עָשׂוּ, בְּנוֹת צְלָפְחָד

What does it mean כַּאֲשֶׁר צִוָּה – there was no command?! Yes, it might have been a good idea for the Bnos Tzlofchad to marry members of their own sheivet given that Hashem expressed this desire with respect to everyone else, but can we call that a “command”?

Apparently, we can! It reminded me of R’ Elchanan’s interpretation (see this post) that Bilam was punished even though G-d never explicitly commanded him not to go with Balak’s messengers because the will and desire of G-d was clear. The understanding of G-d's desire, even absent a verbel command, creates an obligation. (See the Netziv in his Harchev Davar on this pasuk.)

bas kol and "bais shamai aina mishna"

Tosfos (Yevamos 14) asks how to square the Chachamim’s rejection of the bas kol siding with R’ Eliezer with gemara that tells us that a bas kol was accepted as proof that the halacha follows Beis Hillel and not Bais Shamai. Tosfos explains (in one of the two answers given) that the bas kol in favor of R’ Eliezer was rejected because it contradicted the majority view. The bas kol which supported Beis Hillel’s view was accepted because Hillel’s view was held by the majority. The only debate was whether the view of Shamai should perhaps be given more weight because Shamai was known to be sharper that Hillel.

Apparently, according to Tosfos, all things being equal, we do accept the evidence of a bas kol to establish halacha. It’s only in the context of having a rov that a bas kol is rejected. Contrast that with the Rambam’s statement in Hil Yesodei haTorah ch 9 with respect to a Navi:
או שאמר בדין מדיני תורה שה' ציווה לו שהדין כך הוא והלכה כדברי פלוני--הרי זה נביא שקר
According to the Rambam, it’s not just that a bas kol has no weight relative to rov – a bas kol is completely invalid as proof of what halacha should be.

The question raised in the previous post – why a bas kol outweighs the probabilistic evidence of rov with respect to whether a person touched a frog or sheretz, but does not outweigh the opinion of rov with respect to establishing halachic precedent – is valid only within Tosfos’ model that accepts at least theoretically, all things being equal, the evidence of a bas kol to determine halacha. However, according to the Rambam, the question is moot. Nevuah or bas kol is simply an unacceptable form of proof when it comes to psak.

What remains unclear according to the Rambam (which R’ Elchanan, who suggests this approach, and others struggle with) is why the bas kol which declared the halacha in accordance with Beis Hillel was accepted. Be that as it may, R’ Elchanan has a cute point with respect to the gemara’s statement that “Beis Shamai b’makom Beis Hillel aino mishna”, Beis Shamai’s view is unworthy of consideration. Why don't we find a similar sentiment recorded with respect to any other rejected view of Tanaim? Perhaps the reason is because no other Tannaitic view other than Shamai's was rejected by no less than a bas kol.

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.

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.)

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).

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…

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?

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.

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.

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.

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...

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.

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.

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.

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…

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.

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.

hefker (1)

The gemara (Bava Metziya 12a) discusses whether a kinyan chatzeir can take effect on an object which does not come to rest, e.g. a ball is thrown through someone’s yard and is caught by someone else after it passes through - is the ball now owned by the owner of the yard or by the one who caught it?

Rashi adds a detail (perhaps based on a girsa which we don’t have) to the example case that should put us on the alert: the thrower was mafkir the ball.

The gemara attempts to resolve this question by citing an analogous case. If someone tries to be makneh a present to his neighbor by throwing the object into his yard, even if the object does not come to rest and cannot be caught as it passes through, a kinyan chatzeir takes place.

Thanks to the detail added by Rashi, these two cases are not as analogous as they may seem. In the case introduced by the question, the thrower surrendered ownership of the ball by being mafkir it upon release. In the case the gemara presents as analogous, there is a da’as acheres makneh – there is intent to give the object specifically to the owner of the chatzeir. How can this be a proof to resolve the original question?

In other words, as Tosfos presents the problem, in the second case, the chatzeir is being koneh an object directed to it by a thrower. In the case used to illustrate the question, the object which is caught or which passes through the chatzeir is an object which is hefker and which therefore lacks any da’as makneh directing it.

My son was nice enough to alert me to a Ketzos (273:1) which opens a window into the whole sugya of hefker through his analysis of this issue, so stay tuned.

the indictment of Korach

It seems that a recurring theme of the past few parshiyos is that trouble is associated with Moshe’s use of his own da’as. We saw Miriam’s complaint about his decision to separate from his wife mida’ato, we saw the instruction of shlach lecha to send spies mida’ato, and now we have Korach claiming that everything Moshe did, from appointing Ahron and assuming leadership right down to the aseret hadibros (according to one Midrash) was all mida’ato.

Some thoughts on the opening of the parsha: I noticed a Netzi”v that fits nicely with a Radomsker discussed two years ago (wow, 2 years of blogging?). For those who were not reading back then, link is here. Korach is introduced as “ben Yitzhar ben Kehas ben Levi”, an illustriuous yichus, but a yichus which nonetheless is lacking as it omits any connection to Ya’akov. Rashi explains that Ya’akov davened not be mentioned in the context of this machlokes. Rashi’s explanation begs the question: had Ya’akov not davened, why would his name be associated with Korach? And were not Yitzhar, Kehas, and Levi also tzadikim? – why are their names associated with a rasha?

Moving on to the 250 people who joined in, I am not sure what the meaning of “anashim m’Beni Yisrael” is. Do the words “m'Bnei Yisrael” mean to suggest that they came ostensibly as representatives of the people, or to suggest that they were leaders selected from among the people perhaps randomly, but who lacked any inherent qualities of distinction? Whatever the answer, the 250 people are described as “kri’ey eidah, anshei shem”, people who held a leadership position. Why is the detail significant? Why is it important to recognize that this was a rebellion of the elite? The simple answer perhaps is that the Torah is revealing something about the ability of power to corrupt and drive men to seek even greater power and influence. It's hard to stop with a little leadership when the kehuna gedolah itself is within reach.

The Netzi”v offers a different reading and sees the description as an indictment. Had this rebellion been led by outsiders upset over the trappings of leadership which Moshe took upon himself, perhaps there would be some slight justification for their complaint. But these were men in the inner circle, men who themselves were leaders and who therefore knew that leadership sometimes demands exerting authority and acting in an authoritarian role. As the Navi would later tells Shaul, “Im katan atah b’einecha, rosh shivtei yisrael atah!” And as much as Moshe’s role demanded that he express authority, he still remained the humblest of men, and those who were close to the leadership circle and saw his daily activity were in the best position to recognize that. Precisely because they were "kri’ey eidah anshei shem” were the 250 people guilty.

Korach’s yichus is also, suggests the Radomsker, an indictment. The scion of Yitzhar, Kehas, Levi - such great people - should lower himself to this? The names of his ancestors stand in condemnation of Korach, not in his praise. Yet, Ya’akov’s name is omitted. Even though Korach deserves our scorn - shem resha’im yirkav – and there is nothing wrong with castigating the likes of Korach, Ya’akov’s extraordinary tzidkus led him to pray that his name not be used for such purposes. The indictment of Korach is strong enough without the addition of the name of Ya’akov, which stands always as a source of mercy and not justice.

modern day witches

Of course there are no witches of the type in Wizard of Oz, with green skin and flying broomsticks. But clear your mind of Hollywood stereotypes:

We learned: one who is versed in mikra, who has studied Mishna, but has not apprenticed and served Talmidei Chachamim…R’ Acha bar Ya’akov says this person is a magosh. (Sota 22b)

Rashi d”h magosh – a witch who deceives the eyes [with illusions] and steals away people’s hearts, as does this person.

Rashi’s explanation suggests that the gemara is simply drawing an analogy, not that the person we are speaking of is literally a witch. Just like a witch purportedly is a master of illusion, deception, and trickery, so too, this untrained individual will lead others astray. It may be precisely because we are speaking of someone who has mastered some minimal level of learning that the danger is so great - this person has the superficial veneer of scholarship, but in reality knows not of what he speaks. A little knowledge is a dangerous thing.

But the Maharal (Nesiv haTorah ch 15) goes a step further, and I have been meaning to write about this but finally made time thanks to reading parshablogs’s post and his follow up here (hat tip to my wife’s blog as well). Yes, says the Maharal, a person who fails to study under a talmid chacham is indeed a witch!

Witchcraft is all about mystical occult practices – spirituality run amok. Spells, incantations, mumbo-jumbo are its hallmarks. You can't really explain why 2 parts clover and a zebra's hair mixed in with wine is an effective potion (I made that up), but it's not about understanding, it's about ritual. The mystery just enhances the effect.

Explains the Maharal, if you fail to delve into Torah and understand that Torah is about seichel, about a system of thought and law with rules, regulations, finely tuned fomula, and a philosophical basis, then you are in effect falling into the trap of the magosh.

When one reads of women feeling spiritual as they toil over their challah, saying tefillos as they change diapers, as if there was some ma’aleh to the toil itself, one is seeing the magosh in operation. There is no din of kavanah to kneading dough or changing diapers, no special halachos that define it as avodas Hashem, but doing so makes people happy, and so Judaism becomes the worship of that which makes us feel happy and spiritual. In truth, feeling spiritual is probably far more comforting that actually obeying real halacha, which often makes one uncomfortable. Given the choice of shutting the lights and singing zmiros or breaking one's head over a Ketzos, who wouldn't choose the former over the latter, especially if you can appear even more "frum" by doing so? This is intellectual antinomianism at its worst.

The Maharal goes on to give an amazing example of what seichel means. Imagine two people in doubt about a halacha. Person #1 has the latest handbook of collected achronim of the past 20 years, 600 pages on drying your hands after netilas yadayim, and quickly finds his answer. Person #2 learns through the sugya, and acts based on his conclusions - which happens to contradict person #1's answer. Who has achieved the desired ends of avodas Hashem? Person #1 may have gotten the technically correct answer according to most achronim, but he has no understanding of the logic of halacha, no understanding of its rules and system. He is blindly following ritual, just as the magosh mixes his potion. Person #2 may have erred in a technical detail (though he would debate the point!), but truly appreciates the logic of halacha. Says the Maharal, undoubtedly Person #2 has gone further in achieving the desired aims of avodas Hashem.

Spirituality needs to be rooted in an intellectual system to have value, otherwise we are simply acting like the magosh.

kinyan 4 amos

The Mishna (B.M. 11a) says that if an injured animal or an object falls into a person’s chatzeir and the person declares “zachsa li chatzeiri”, I wish to acquire the object through my chatzeir, he/she is koneh the object.

Tosfos writes that the declaration of “zachsa li chatzeiri” is unnecessary. One of Tosfos’ proofs is from the takanah (see B.M. 10) that 4 amos surrounding a person are koneh without a declaration. The GR”A (see the note printed on the daf) notes that the Rambam disagrees (see Hil Aveidah 17:11, Hil Zechiya 1:4) and always mentions the declaration of “zachsa li”.

Perhaps the point of debate revolves around how to understand this kinyan of 4 amos. Is the kinyan of 4 amos an extension of the basic idea of kinyan chatzeir or a completely new takanah? From the fact that Tosfos lumps the two together, it seems 4 amos and chatzeir share the same basic dynamic. The Rambam, however, perhaps views kinyan 4 amos as a categorically new type of kinyan.

tevel: a mixture containing terumah or an independent issur

The Minchas Chinuch quotes a machlokes Rishonim regarding the obligation to take challah from tevel. Tosfos in Sukkah (35a d”h asya) writes that challah must be taken only if there is enough dough which would be chayav if terumah and ma’aser were subtracted. The R’Sh disagrees; as long as there is a quantity of dough that meets the shiur of challah, even including ter”m which belong to the kohein, the dough is still chayav.

Seems to me that this machlokes hinges on an issue raised by R’ Yosef Engel (Esvan d’Oraysa #2) regarding terumah. Tevel may not be eaten before terumah is separated; once separated, terumah may not be eaten by a zar. Is this issur of terumah just an extension of the old issur of tevel which remains in place viz. a viz the zar, or is it a categorically new issur? One can flip the chakira and raise the same issue with regards to the issur of tevel: is tevel prohibited because it contains terumah, or is it a categorically independent issur?

Tosfos perhaps holds that tevel is prohibited because it is defined as a mixture containing terumah; therefore, the volume of terumah must be subtracted from tevel before evaluating whether it is chayav in challah. The R”Sh, on the other hand, holds that tevel is a categorically independent issur. True, potentially ter”m must be removed from the dough, but that obligation to give a portion to the kohein does not impact ownership of the dough before it is given.

shlach lecha - spies: good idea or bad?

If you don’t speed up your daf yomi you are liable to miss a beautiful Maharasha on the episode of the spies. Reish Lakish darshens (Sotah 34b) the words “shlach lecha” as a message to Moshe that sending spies is “l’da’atcha”, based on your decision alone. Rashi explains that Moshe was never commanded to send spies; Hashem does not command something that will lead to wrong. Hashem left the choice in Moshe’s hands, and Moshe reacted positively to the people’s suggestion. “Vayitav b’einey” (Devarim 1:23) – Moshe tells us that he approved of the plan, but the gemara darshens “v’lo b’einey haMakom”, G-d did not.

(It is tempting to see significance in the juxtaposition of the episode of Miriam’s critique of Moshe where he acted “me’da’ato” by separating from his wife and “hiskim Hashem al yado”, Hashem concurred with his decision, and this case where Moshe acted “me’da’ato” and it led to tragic results. Da’as Torah is evidently not infallible, even where a Moshe Rabeinu involved.)

Ramban disagrees with Rashi’s approach. Firstly, Ramban disagrees with understanding the word “lecha” as diminishing the force of the imperative command “shlach”. Also, if Moshe approved of a plan which was unfavorable in G-d’s eyes, should he not share some of the culpability for the outcome? It was not the sending of spies itself which was unfavorable, argues the Ramban, but the outcome which was tragic. (You may want to read parshablog’s take on this issue.)

The Maharasha sees the question of whether sending the spies was a good idea or not as one of motivation. Sending spies is part and parcel of preparation for war. Yehoshua sent spies before waging war on Yericho and was not criticized for his efforts; there is no reason to think such efforts would be inappropriate for Moshe. Aderaba - “Va’yitav b’eini”, Moshe thought it was a good idea. However, this planning was not what motivated Bnei Yisrael’s request. This was not simply a scouting mission to prepare for war, but this was a mission designed to investigate whether there was truth to the claim that Eretz Yisrael was “Eretz hanivcheres”. That agenda was inappropriate and would lead inevitable to sin.

The Maharasha has a beautiful diyuk. The Ramban is right – “shlach” is a command – but at the same time we can say Hashem did not approve the mission. Hashem told Moshe if he must send spies he should make sure they go “l’da’atcha” – in accordance with your (Moshe’s) agenda, in accordance with your plan and motivation, but not in accordance with their own aims. Unfortunately, the wrong agenda won out, leading to tragic consequences.

more on Lauren Winner's book

A few other observations about Winner’s book:

First, getting back to the book, I was amazed at the need Winner had to concretize her connection to G-d by worshipping through (or to - I am really not sure which word is more appropriate) various icons. She literally has a whole collection of crosses adorning her walls which she uses to channel her prayers. This need to find some tangible, concrete “thing” to focus one’s faith around struck me as reminiscent of the eigel and evidence that avodah zarah is alive and well in the 21st century. I had never appreciated the degree I am also surprised that Winner does not discuss this more - this whole use of icons and imagery struck me as the most extreme expression of the distance she has traveled from Judaism.

Another point of contrast with Dubner which struck me: Dubner travels to Poland to explore his family’s roots and is deeply moved by the records of his grandparents’ town and its destruction during the Holocaust. He is moved not just as a human being, not just because it was his family, but because he identifies with the experience as a Jew. Winner never seems to empathize with the Jewish people as her family in the extended sense. She connects with individuals, with families who befriend her, but I never felt that she connects with the Jewish people, with their destiny and history as a people. It made me recall the pasuk from Rus and appreciate that “ameich ami” precedes “Elokayich Elokai”, perhaps for good reason.

I liked the comment to yesterday’s post saying that Winner’s complaint of the lack of intellectualism among Jews as a reason for her leaving Judaism begs the question of whether there indeed are more intellectual Christians. However you interpret her remark, by my rough page-count estimate Winner spends only around 2% of her book discussing why she left Judaism, and her explanations (like this one) strike me as mostly after the fact ad-hoc rationalizations. Aside from the point I quoted yesterday she mentions that she was never fully be embraced by people – they may have admired her, but would never let their son marry her. Social stigma is a powerful force. I think the real explanation for her not digging deeper into her dissatisfaction with Judaism is that psychologically she really has not left Judaism at all. She describes getting together with another couple to hold a Christian seder, she sets up a tikun leyl shavuos learning sessions with Christian readings, she has a chapter devoted to her reading Rus (on Shavuos) as a Christian, and joins a Church which caters to her appreciation of close textual reading on the Bible. She even revisits a shule for a Shabbos davening. Her Christianity is just another layer added to the foundation of Judaism which informs and shapes that experience (and judging from the book reviews, it is this perspective that makes her writing interesting).

Dubner's "Turbulent Souls" vs. Winner's "Girl Meets G-d" :two books, two viewpoints on faith

A few weeks back I recommended reading Stephen Dubner’s Turbulent Souls and got back a comment from Bill S. to read Lauren Winner’s Girl Meets G-d. I found it in the library and finished it off. Very different style from Dubner (I enjoyed Dubner’s writing style much more than Winner’s). Dubner tells the story of his re-discovering Judaism after being raised as a Christian; Winner tells the story of her turning to Christianity after converting and practicing Orthodox Judaism. Dubner is not content with accepting his parents’ conversion to Christianity being the result of a religious epiphany. He tries to trace back his family’s history and uncover the psychological and emotional dynamics that may have led to their conversion. The Judaism which Dubner attaches himself to is more of a cultural / historical identity than a mystical feeling or theological set of principles. Winner, on the other hand, reiterates a number of times that although one might attribute her return to Christianity to various emotional or psychological factors, she firmly believes Jesus reached out to her and led her. The book is filled with her professions of faith, her theological musings, her feelings about G-d and religion. Her faith is not the result of rational inquiry, but is the stuff of dreams and mystical experience. It seems her faith is no less deep than Dubner’s, even though her understanding of her religious attachment is so different than his. If I had to sum up Dubner’s faith, I would say he believes in Jews, the historical / cultural “peoplehood” that we share, though not necessarily Judaism, meaning a specific set of religious tenets. Winner believes in Christianity with all its rituals and theology, but I got very little sense of a her feeling a shared identity with all her co-religionists.

One quote from the book that stood out:

To tell this story, I would also have to talk about the crass materialism that snaked its way around New York Orthodoxy and the anti-intellectualism of the community. My five closest friends in college were the most intellectually capricious people on earth, but many of the other Orthodox Jews at Columbia were the worst breed of intellectually insular, mastering just enough knowledge to scatter their dinner party conversations with references to Freud or Kant, never mastering any more than that. I would have to talk about those things to tell the story of my leaving Judaism.

Of course not all Jews are materialistic and anti-intellectual. But have to admit my sympathies with this viewpoint, especially when I look around my neighborhood replete with nail salons, high-budget shoe stores, multi-million dollar homes, etc. and local newspapers advertising programs that promise college degrees in as little as 18 months. Is this the “am chacham v’navon” which should attract the admiration of the outside world? Perhaps I am being too harsh – your thoughts?

does modeh b'knas have a moral obligation to pay anyway?

Interesting question raised by the Yerushalmi at the end of the third perek of Kesubos (and I don't think there is a parallel in the Bavli): in a case of modeh b'knas, where the guilty party is exempt from being fined by Beis Din because he/she admits to the crime committed, is there any moral obligation (chiyuv la'tzeis y'dei shamayim) for the guilty party to voluntarily pay the fine in question? Apparently the Yerushalmi is willing to entertain the possibility that knas is not just a function of Beis Din imposing a penalty, but is an inherent obligation created by the criminal act itself.

Miriam's complaint against Moshe

One of the three things Moshe added m’da’ato (Shabbos 88) was separating from his wife, leading to Miriam’s complaint which we read at the end of last week’s parsha. It seems from Rashi on chumash (on the words “peh el peh”) that Hashem directly commanded Moshe to separate from his wife. However, Tosfos argues that had that been the case, there would be little for Miriam to complain about. Moshe must have taken the initiative in separating, and afterwards received G-d’s consent (“hiskim Hashem al yado”). Based on R’ Elchanan’s approach (discussed last week) that m’da’ato means the chacham’s intuition of ratzon Hashem, the flaw in Miriam’s complaint is more apparent – the very fact that Moshe took the initiative and had an intuition of some aspect of ratzon Hashem which she did not establishes his superiority as a Navi to her.

What is unclear from the episode is what Miriam hoped to accomplish by voicing her complaint. My wife suggests that she intentionally approached Aharon because Aharon was known as a peacemaker, especially in the realm of shalom bayis. Who better to appreciate the plight of Tziporah and intervene on her behalf?

Moshe Rabeinu or Moshe the Navi

There is an interesting letter relating to the dual role of Moshe Rabeinu/ Moshe the Navi from the Chasam Sofer to the Mahartz Chiyus which the Mh”C responds to at the end of the section of his sefer called Toras Nevi’im. The Chasam Sofer claims that the rule of “lo bashamayim hi” did not apply to Moshe Rabeinu. The proof he offers comes from the case of the megadeif. The Midrash portrays the megadeif as coming to court to press his claim for a stake in the camp of Klal Yisrael and being rebuffed by Moshe because his father was not Jewish -- the megadeif was conceived during an act of z’nus between his mother and an Egyptian. Yet how did Moshe know this without DNA testing? The halacha regarding determining paternity is clear: rov b’eilos achar haba’al. The assumption is that if a woman is married and conceives, the child’s father is the women’s husband, even if she is known to be promiscuous or known to have committed adultery. The Chasam Sofer writes that Moshe must have ruled on the basis of prophetic insight, nevu’ah. Even though the world of halacha and nevu’ah are normally separate – it is reason and logic, not prophecy, which governs decisions in the Beis Medrash – these worlds overlapped and intersected for Moshe, who was entitled to rule on the basis of prophetic insight. Coming back to the Minchas Chinuch’s point, ultimately all of Moshe’s Torah knowledge sprang from his prophetic experience at Sinai, a unique encounter which no other Navi shared or can ever share in the future.

Moshe "Rabeinu" or Moshe the Navi?

Hope everyone had a great Shavuos. Still pressed for time, but will try to post a little. There is a mitzvah d’oraysa to obey the words of a Navi. Minchas Chinuch (516) asks why is it that any time a person violates any mitzvah, he/she is not also guilty of a secondary issur of disobeying the words of a Navi? Since every mitzvah was transmitted to us through Moshe Rabeinu, the greatest of Nevi’im, by disobeying any mitzvah we have also disobeyed a Navi!

I would take the Minchas Chinuch’s question a step further. The M.C. presents a machlokes between Tosfos and the Rambam whether the mitzvah of listening to the Navi applies only to that which the Navi heard directly from G-d, or even to insights which the Navi thought of him/herself. If the mitzvah to obey the Navi applies even to ideas the Navi did not hear directly from G-d, then if someone violates a takana which was instituted by a Navi, why would this also not be tantamount to violating the din d’oraysa of listening to a Navi? For example, kri’as haTorah is a takana which was instituted by Moshe Rabeinu. Would skipping kri’as haTorah and violating that takanah also be a violation of the din d’oraysa of obeying a Navi?

R’ Soloveitchik answered the Minchas Chinuch’s question by suggesting that the mitzvah in question does not apply to the Navi as a gavra, a persona, but applies to words of nevuah. By definition, a mitzvos and takanos are categorically distinct from words of nevuah (see also the Rogatchover Mh”T Yesodei haTorah 9:1)

Be that as it may, given the Minchas Chinuch, I thought we might be able to answer R’ Elchanan’s question regarding the extra day of preparation before mattan Torah that Moshe added “mda’ato”. R’ Elchanan asked what authority Moshe had to offer his interpretation when the mitzvah of “lo tasur”, the “license” for Rabbinic interpretation, had not yet been given. R’ Elchanan postulated that Rabbinic authority must not be rooted not in a specific commandment like “to tasur”, but more generally in the Rabbis ability to intuit G-d’s will. I think R’ Elchanan is right that in this case Moshe intuited G-d’s will, but I’m not sure we can generalize from Moshe to Rabbinic authority in general. Perhaps Moshe’s authority in this case stemmed not from his role as Moshe “Rabeinu”, Moshe the Rabbi or chacham, but rather stemmed from Moshe’s role as Navi. It is not the Rabbi or chacham whose authority stems from some transcendent insight into G-d’s will – that is the role of the Prophet.

no time

Sorry blogging has been spotty - too busy right now to get this topic done. Hope to have more time at some point soon.

chazal's authority as an expression of ratzon Hashem - lo tasur and pikuach nefesh

Continuing from the previous post discussing the extra day Moshe added “me’da’ato”, whether we learn like Tosfos or like the Maharal, Moshe’s interpretation of Hashem’s command was accepted by Bnei Yisrael. R’ Elchanan in Koveitz Divrei Sofrim asks why this should have been the case. Since the command of “lo tasur”, which grants authority to Chazal, had not yet been given, there seems to be no basis upon which to accept the authority of Rabbinic interpretation, even coming from Moshe Rabeinu!

As discussed in the past, R’ Elchahan suggests that the authority for Rabbinic interpretation is not rooted in “lo tasur”, but is rooted in our assumption that Chazal have the ability to intuit the will of Hashem. It naturally follows that if one is privy to Hashem’s will, one should seek to fulfill it.

R’ Elchanan offers a number of proofs for his thesis, among them: 1) the fact that takanos and gezeiros existed before matan Torah, before “lo tasur” was commanded; 2) the fact that a katan is obligated in mitzvos derabbanan as part and parcel of chinuch even though a katan is not bound by “lo tasur”; 3) the punishment of Balak for participating in the attempt to curse Bnei Yisrael even though there was never a formal command from G-d for him not to go to Bila’am.

I would like to suggest a possible additional proof based on a question R’ Elchanan himself raises elsewhere but which he does not connect back to this discussion. The gemara (Gittin 56) relates that before the churban, the Emperor sent a korban to the Mikdash to be offered. A traitor had caused a blemish in the korban rendering it unfit, knowing that if the korban was not offered it would arouse the anger of the Emperor against the Jewish people. The Chachamim were at first willing to offer the korban despite the blemish because of “shalom malchus”, the need for peace. However, R’ Zecharya ben Avkolus argued against bringing the korban lest people think a defective korban can be brought. The gemara concludes that because of R’ Zecharya’s unwavering position the Mikdash was eventually destroyed. R’ Elchanan (Koveitz He’Oros #48) questions the sevara of R’ Zecharya. Concern lest people think a blemished korban is acceptable is a chashash derabbanan. Weighed against pikuach nefesh, there would seem to be no doubt that the saving of life should take precedence and the korban allowed. Why then was R’ Zecharya insistent that the chashash derabbanan be upheld despite the danger? R’ Elchanan seems unable to arrive at a firm answer to this question, but what R’ Elchanan was unwilling to say is actually spelled out by someone else. Sha’arei Yosher has a table of contents summarizing each chapter of each sha’ar. In the content table for the last chapter of sha’ar #4, the editor snuck in a chiddush (I assume this is the editor’s own summary and not R’ Shimon Shkop’s chiddush). He writes that the lav of “lo tasur” clearly must override pikuach nefesh. Since Chazal take the license of explaining the parameters of halachos that require ye’hareig v’al ya’avor, even extending the obligation to cases that are not apparent from the plain reading of the text, apparently one has no right to argue that pikuach nefesh overrides “lo tasur” undermining Chazal’s interpretive authority. The argument boils down to a reduction ad absurdum consideration, but missing is an explanation of why this should be so. Why indeed does pikuach nefesh not override “lo tasur” and undermine Rabbinic authority? I think the answer goes back to R’ Elchanan’s basic principle -- Rabbinic authority transcends “lo tasur” and stems directly from an intuition of the ratzon Hashem. If it is Hashem’s will that we sacrifice our lives, all pikuach nefesh bets are off. Obviously not all scenarios are equal in this regard, as pikuach nefesh does usually override dinim derabbanan. I cannot formulate a rule that would clarify why a case like R’ Zecharya ben Avdolus’s scenario is an exception and other cases not, but I think this approach does shed like on the operative mechanism behind how such exceptions work.

See, I told you there would be new stuff to this topic… more yet to come.

kvod Elokim haster davar

Some thoughts from my wife on last week's parsha.

Moshe hosif yom echad me'da'ato

I have to prepare a shiur for Shavuos, so I’m afraid blogging the next few days is going to be a first draft before going live (though reality blogging is really never more than a draft). I also have to beg longtime readers’ indulgence because the shiur will cover some ground we have done before (see here and here for starters), but I hope to spin things off in a new direction.

The gemara (Shabbos 87) tells us that Moshe Rabeinu did three things “me’da’ato”, based on his own reasoning, with which G-d concurred. One of the three is “hosif yom echad me’da’ato”. On the Wednesday before mattan Torah Moshe was given the command of hagbalah, to cordon off Mount Sinai for three days. One might have figured that Wednesday, Thursday count as the first two days of hagbalah, and the Torah would be given on Friday, the third day. Moshe Rabeinu reckoned the count differently. As the gemara describes, since he was told to do hagbalah “hayom u’machar”, today and the next day, he used the derash principle of hekesh to reason that the first day must be an identical block of time as the second. Just as the second day consist of a night + an ensuing day, so too must the first. Therefore, the count could not start on Wednesday, as the night had already passed. Instead, the count must start on Thursday and extend to Shabbos. The gemara concludes that the Torah was in fact given on Shabbos, showing that G-d concurred with Moshe’s reasoning.

Tosfos and the Maharal (Tif Yisrael ch 37) are bothered by the description of Moshe’s action as “me’da’ato”, something that was a product of his own reasoning. Moshe did not intuit or logically deduce the need to start counting on Thursday instead of Wednesday. He used the rules of torah sheba’al peh, a hekesh, to interpret the command he was given. If Hashem intended the Torah sheb’ksav to be read though the lens of Torah sheba’al peh, then isn’t the interpretation inherent in the text? And isn’t it obvious that any interpretation using those hermeneutical rules would be concurred with by Hashem?

This issue is interesting in its own right: to what degree is interpretation inherent in the text and to what degree is it a product and creation of our own reading? Tosfos writes that the hekesh the gemara refers to must not be a real derasha, otherwise it makes no sense to label it “me’da’ato” of Moshe. According to Tosfos, the 13 middot are inherent within the text's meaning and not products of our own mind. Maharal, on the other hand, writes that derashos are always a product of human interpretation and can be called "me'da'ato". Why is this instance of derash more noteworthy than any other? Maharal explains that Hashem’s agreement demonstrated that although derash usually is an external interpretation read into the text, in this particular case the derash was inherent in the original command. I would suggest by way of analogy that the pasuk “ayin tachas ayin” is of a similar nature. The interpretation of the pasuk as referring to compensation and not literally the taking of "an eye for an eye" is more than derash, but is quasi-pshat, a part of the inherent meaning of the text itself (yes, my example is debatable as well).

Stay tuned for more…

Yom Yerushalayim

From a sicha from R' Avraham Shapira z"l, full text here:

ותשכון בתוכה כאשר דברת', מדוע דוקא בתפילה על ירושלים מדגישים כאשר דברת, מה שלא מצינו בשאר הבקשות, והרי כל הבקשות מבוססות על פסוקי ודברי הנביאים? והביאור הוא, כי השכינה קיימת גם בזה"ז, שהרי קדושת ירושלים לא בטלה. ואנו מוסיפים בתפילה לבקש על השכינה בשלימותה. כמו שכתוב בספר זכריה שירושלים תיקרא עיר האמת, הר הקודש, והכוונה על בנין המקדש. וע"כ צריך להוסיף "כאשר דברת" כי יש תוספת לקדושת ירושלים, לשכינה במילואה, ע"י הקמת בית המקדש.
"כאשר דברת"

ירושלים הבנויה כעיר שחוברה לה יחדיו, ששם עלו שבטים, אין המדובר על עליה פיזית, אלא על עליה רוחנית. בירושלים נתעלו השבטים, כך מפרש המאירי, סגולת ירושלים - סגולה רוחנית שמרוממת את האדם. והתוס' בכתובות (ק"י ע"ב) כתבו שאין רוצים שיהיו עבדים בירושלים, ירושלים היא עיר של מלכות. מלכות היא סמל של חירות, גדר של מלך הוא מי שאין על גביו אלא ד' אלוקיו. ומשום כך ביציאת מצרים, ביציאה לחרות עולם, כותב התרגום יונתן (על הפס' ואשא אתכם על כנפי נשרים) שהקב"ה נשאם באותו לילה לירושלים, כי השלמת החירות בתכלית, היא רק עם ירושלים, אין עבדות בירושלים כדברי התוס'.

A nes is not just about a catastrophe avoided, but is also a mechayeiv:

כשעושים לאדם ישועה, כשעושים לצבור ישועה, רוצה הקב"ה שאותו אדם ואותו צבור ישפר את מעשיו, ויעבור למסלול חיים חדש, גבוה יותר, קדוש יותר

more on yediya and bechira - the fate of Shimshon

R’ Elchanan Wasserman in Koveitz He’Oros points out a different sugya in Sota that also seems to suggest (as discussed yesterday) that Divine foreknowledge poses no contradiction to free choice. The gemara (9b) writes that Shimshon was punished by being blinded because he was led astray by his eyes by being taken in by the sight of Delilah. The gemara asks: we see from the pasuk “v’aviv v’imo lo yad’u ki mei’Hashem hu” that this entire episode was part of the Divine plan to allow Shimshon to strike at the Plishtim – how could Shimshon be punished for what was bound to occur anyway? The gemara answers: “ki azil basar yashrusei azal”; when Shimshon acted, he was following his own desires. Even though there was Divine foreknowledge of events, even though there was a Divine plan for Shimshon to be taken by the Plishtim and ultimately to attack them, Shimshon was not privy to these plans and acted out of free choice.

Using my analogy from yesterday: just as if someone had theoretical foreknowledge of what I will eat for breakfast, it would not prevent my opening the breakfast cabinet and freely choosing which cereal to eat, so too, G-d’s foreknowledge of Shimshon’s actions does not contradict his freedom to act of his own volition.

R’ Elchanan considers this approach to be so sensible that he wonders why it was not suggested by the Rishonim. I assume he is alluding to Rambam in Hil. Tshuvah 5:5 who writes that the entire topic of free will vs. foreknowledge is irreconcilable within the limits of human intelligence. However, it seems to me that his approach is exactly what the Ra'avad meant in his critique of the Rambam when he refers to knowledge of the astrologers having no effect on freedom of action.

like sand and like stars: more kamus vs. eichus

The Jewish people are compared to the stars in the sky and the sand of the earth. The Shem m’Shmuel on this week’s parsha points out that there is a difference between the two analogies. The comparison to sand highlights kamus, the quantitative numerical population explosion that the Jewish people will merit. The comparison to stars highlights eichus, the qualitative greatness to which the Jewish people can rise.