R' Yosef Engel on "b'ficha u'b'levavcha la'asoso"

“Ki karov elecha hadavar me’od b’ficha ubelevevcha la’asoso”

1. The gemara (Nedarim 51) writes that if one took a neder from food which is “yoreid l’kedeirah” one cannot eat food cooked in an ilfas – the ilfas is used for the finishing stages of food preparation for items that were already “yoreid l’kedeirah”, previously cooked in a kedeirah, and therefore this food is prohibited. However, one who takes a neder from food “na’asah b’kedeirah” is allowed to eat food which is “na’asah b’ilfas”, and if one takes a neder not to eat “na’asah b’ilfas” one is allowed to eat food “na’asah b’kedeirah”. Why here don’t we say that food prepared in an ilfas was previously “na’aseh b’kedeirah” and therefore also prohibited?

Ran answers that the key here is the word “na’aseh”, which refers specifically to the final stage of food preparation. Food prepared in an ilfas was already cooked in a kedeirah, it was “yoreid l’kedeirah”, but it cannot be described as “na’asah b’kedeirah” because the finishing touches were done in an ilfas, not a kedeirah.

2. The mitzvah of tshuvah is multifaceted. Kiddushin 49 tells us that a rasha who is mekadesh a women on condition that he is a tzadik has accomplished effective kiddushin because we assume that a thought of tshuvah passed through his heart -- that fleeting thought of regret means he can no longer be called a rasha. Yet, on the other hand, the Rambam seems to define viduy, a verbal confession as integral to tshuvah if not the very definition of the mitzvah – “viduy zeh mitzvas aseh” (Hil Tshuvah 1:1). Rabeinu Yonah in Sha’arei Tshuvah goes into more detail describing many steps to the tshuvah process.

3. If we consider the many steps involved in complete tshuvah it becomes hard to understand how the mitzvah can be described as ki karov elecha, easy to do. It becomes hard to understand “Tashev enosh at dakah – at dikdukah shel nefesh”, how even till the last breath one can do tshuvah, when tshuvah emands "b'picha", a verbal expression of viduy to be effective.

Therefore, explains R’ Yosef Engel, the pasuk ends “b’levavcha la’asoso”. True, tshuvah with viduy done b’ficha is the ideal, but if we look at what is the most essential ingredient of tshuvah, the final, most crucial step in tshuvah, the “la’asoso” of tshuvah, as the Ran explain, the finishing touch, then we need only focus on the lev, "b'levavcha la'asoso".

"brisker" shevarim: reflections on chumra and minhag

The Mishna (R”H 33) tells us that a tekiya is the same length as a teru’ah is and a teru’ah is 3 beats long. Rashi explains that the total length of the entire tu-tu-tu of a teru’ah is 3 beats; each individual tu sound is 1 beat long. According to Rashi one could blow a very short tekiya lasting only 3 beats long. Tosfos explains that each tu-tu-tu is 3 beats for a total of 9 beats, which is what our tekiyos and teru’os for the most part sound like. For more detail, see Jewish Worker’s post, but this nutshell suffices for the issue I want to discuss.

The issue gets thorny when it comes to blowing shevarim because the opinions of Rashi and Tosfos seem mutually exclusive. According to Rashi, each tu-tu-tu of the shevarim must be less than 3 beats, otherwise each would be the same length as a tekiya. According to Tosfos, since tekiya and teru’ah each need a minimum of 9 beats, three short shevarim just don’t cut it.

Rashi’s short shevarim would sound strange to most of our ears. When I lived in Passaic, R’ Sacks had the ba’al toke’ah blow the last 10 kolos with very short shevarim to be yotzei Rashi’s view, but all other shevarim were blown according to the usual practice.

There is another way to try to fulfill both views, and the way I heard it in yeshiva, this was R’ Soloveitchik’s chiddush that R’ Chaim approved of. There is no inherent reason why one is limited to blowing three blasts tu-tu-tu for shevarim and not more. R’ Soloveitchik suggested that one can blow short shevarim of about 2 beats each to fulfill Rashi’s view, but blow enough shevarim (i.e. 5 shevarim) to add up to more than 9 beats in total and thereby fulfill Tosfos’ view as well (just saw that Nefesh haChaim has a post on this also).

This R”H was the first time I actually heard this chiddush implemented in practice. To be fair, the minyan I daven at implements other Brisker / RYBS chumros, so this is just one more to add to the mix. I asked my son if he understood the logic of what was being done (either the rest of the minyan is used to this or not attuned to it) and he told me that in yeshiva the menahel had presented this view as a Brisker shita which they recently adopted for some of the tekiyos in the yeshiva minyan. Apparently Brisker chumros are getting more popular every day!

I’m not sure what to make of this development. The chiddush is wonderful in an academic way, but somehow (maybe I am just losing some Brisker-ness) it strikes me as anti-traditional to actually implement. Tekiyas shofar has been going on for centuries. If your grandparents asked their grandparents what a shevarim sounded like, I have little doubt that the answer would be the usual tu-tu-tu, not 5 shevarim and not really short shevarim. Leaving aside whatever mystical effect blowing these precise kolos may have, if this custom was good enough for centuries of G-d fearing Jews who knew how to learn a little gemara too, why should we change it because of a shtickel lomdus? Admittedly, my reaction here is emotional rather than intellectual, and inconsistant with my own acceptance of Brisker chumra in other areas.

Haym Soloveitchik in his essay “Rapture and Reconstruction” writes with respect to newly adopted chumros of larger shiurim for achilas matzah:

It was perfectly clear to all concerned that Jews had been eating matzot for thousands of years, and that no textual analysis could affect in any way a millennia-old tradition. The problem was theoretically interesting, but practically irrelevant.

And then a dramatic shift occurs. A theoretical position that had been around for close to two centuries suddenly begins in the 1950's to assume practical significance and within a decade becomes authoritative. From then on, traditional conduct, no matter how venerable, how elementary, or how closely remembered, yields to the demands of theoretical knowledge. Established practice can no longer hold its own against the demands of the written word.

One can only wonder what Haym Soloveitchik would make of his father’s 5 shevarim, or of those who follow in his holy footsteps. But perhaps it is my own concerns which are "theoretically interesting but practically irrelevant", to echo R' Haym's words, as for better or worse, academic chiddush has left its imprint on the world of halacha l'ma'aseh.

atem nitzavim hayom kulchem - the totality of each person

The Radomsker asks why the pasuk seems to repetitively tell us "atem nitzavim hayom kulchem", you are all standing here before Hashem, and then after enumerating all the varied socio-econimic strata of people present concludes the section by again saying "kol ish yisrael", all people were present. What I think the essence of the Radomsker's answer means (stripping away the kabbalstic ideas) is that the opening phrase referring to "kulchem" does not really mean all the people in the sense of every member of the group -- that is what the last phrase, "kol ish yisrael" refers to. The opening phrase of "kulchem" means each individual in his/her totality of being. What does that mean? We all wear varied hats in life. We at various times might function as a parent, a sibling, a son/daughter, an employee, an employer, a friend, a talmid chacham, a ba'al chessed, etc. When we are at work wearing the hat of employee or employer and doing business, we might put out of our mind the persona of ben Torah that we wore for davening in the morning. Or when we are wearing the hat of a ben Torah we might forget that we also have responsibilities to a wife and children and need to care for them and give them time that could be spent learning. Sof kol sof it is very difficult to juggle all these hats and never run into a problem, or to feel completely at ease in all of them all of the time. So you might think on Rosh haShana (the day which according to the Midrashic reading of the pasuk is the day which we stand before Hashem) when we step into shul we might cling to that hat which fits best -- put the best foot forward. The pasuk tells is that Hashem will have none of that. When we stand before G-d, it is "kulchem", all the differnet varied personas we adopt are standing before Him, as Hashem judges our actions in every role we play, based on every facet of our personality.

Hopefully we will each be judged for a good and sweet year - kesiva v'chasima tova!

tekiya-teru'ah-tekiya: three notes or one unit?

The Mishna (Sukkah 53) tells is that no fewer that 21 chatzotzros blasts were blown daily in the Mikdash as part of the process of offering nesachim, but the gemara cites R' Yehudah's opinion that the minimum number of blasts was 7. Explains the gemara that there is no argument. The blowing had to be done in units of three: tekiya, teru'ah, tekiya. The Tanna of the Mishna countes 21 blasts in total; R' Yehudah counts 7 units of three.

The Rogatchover explains the machlokes as follows -- for any series of items that must go together, e.g. 4 minim on Sukkos, 4 kosos on Pesach, tekiya-teru'ah-tekiya, one can make the following chakira: are these seperate independent units which must go together, or does that fact that they must always go together prove that they are not independent units but are parts of some larger whole? Is there a single note called tekiya-teru'ah-tekiya, or are these three seperate notes which must always be played together?

The gemara explains that R' Yehudah learned from the pasuk "u'tekatem teru'a" that the terms tekiya and teru'ah are interchangable; they are one and the same unit and go together. The Tanna of the Mishna holds that the blasts are seperate units based on the pasuk which describes the blowing done to gather the camp in the desert, "tiski'u v'lo tari'u" -- if tikiya and teru'ah together form one unit, says the gemara, how could the Torah tell Moshe to do half a mitzvah?

The Aruch laNer is bothered by the gemara's logic and develops his question through an analogy to the mitzvah of zerikas hadam by korbanos. Some korbanos require 4 sprinklings of blood; some require only one. If a korban requires only one sprinkling of blood, we wouldn't call that 1/4 of the mitzvah of zerikas hadam -- viz a viz that korban, 1 sprinkling of blood is 100% of the mitzvah, not 25%! So too with respect to blowing chatzotzros. If the Torah requires a single tekiya in some circumstances, in those circumstances that single tekiya is 100% of the mitzvah, not 50% of the mitzvah that appears in other circumstances. What does the gemara mean?

Based on the Rogatchover, we can perhaps distinguish between the case of zeikas hadam and chatzotzros. With respect to korbanos, how many sprinkles should be are done is a function of the chovas hagavra, i.e. what action the person must take to fulfill the mitzvah. R' Yehudah and the Tanna are not arguing about what the act of blowing shofar entails or how many sounds must be blown. Their argument is regarding the cheftza shel mitzvah of a tekiya -- what is a shofar note in its simplest form: a three note tekiya-teru'ah-tekiya, or 1/3 of that series. What a person must do can change in different contexts depending on the requirements of the mitzvah, but the definition of an object is something that remains constant -- either a tekiya (or teru'ah) alone is a note, or it is not. But something can't both be a note and not be a note at the same time.

If we consider notes as one unit, it makes sense that they should be blown together, without even a breath in between. Some Rishonim suggest this nafka minah between R' Yehudah and the Tanna. This brings us to the practical question of the shevarim-teru'ah which we blow - is it one note or two notes that go hand in hand; one breath or not? Fortunately there are enough kolos to cover all the bases and not have a safeik.

Kesiva v'chasmima tova to all!

u'bacharta bachaim

Commenting on “u’bacahrta ba’chaim”, the Netzi”v cites a Sifri in Parshas Re’eh which illustrates the lesson of the pasuk with a comparison to a fork in the road where one path is covered with thorns and brambles and one path looks smooth and passable. Although the clear road appears to be the better route, in actuality the path which appears impassable will become a smooth highway further along and the smooth path will become clogged with obstacles. Taking the easy road is sometimes a shortsighted error. Similarly, when one comes to a fork in the road of life, choosing the path of torah and morality may appear to make the going more difficult, but will ultimately prove more rewarding.

The Netzi”v is not satisfied with this simple lesson alone as the moral of the Sifri's analogy. In the analogy, both paths ultimately lead to the same destination. In the choices faced in life, the choices of the saint and choices of the sinner carry them to quite different destinations. How does the analogy fit?

The message of the Sifri is that our assumption about the destination of the sinner is wrong. No soul is lost forever. A person may have to undergo suffering in this world and the next to purge the soul of its sins, but ultimately every Jewish sould can be and will be rehabilitated and restored to its splendor and rightful place close to Hashem. Precisely because no soul can ever be lost are we exhorted "u'bacharta bachaim". Why take a circituitous and long route to one's destination that requires suffering and punishment when one can choose the correct path and arrive at one's destination with ease?

which side of his mouth does a lefty blow shofar from?

A little halacha from the Mishna Berurah l’kavod the C”C’s yahrtzeit:

The Rama (585:3) writes that it is best (“tov”) to blow shofar from the right side of the mouth.

The Mishna Berurah quotes two explanations from the Magen Avraham for the minhag: 1) to counter the influence of the satan who stands to the right, as the pasuk says, “v’hasatan omeid al y’mino l’sitno”; 2) the left is already protected by the tefillin worn on the left hand (quoted in the Sha’ar haTziyun). The Biur Halacha adds another explanation which the C”C heard in the name of R’ Meir Simcha (I am far from a baki in M”B, but for what it's worth, I don’t recall other quotations from RMS in the MB): the gemara derives tekiya from the blowing of chatzotzros in battle; in the description of the battle fought by Gidon in Nach we learn that the chatzotzros were held in the soldiers’ right hand and torches in the left.

Since my son is a lefty I am somewhat more attuned to halachos that emphasize right-handedness and have come to expect debate as to whether things are reversed for leftys. This is no exception. Whether a lefty should blow out of the left side of his mouth should at first glance depend on which reason above is paramount: according to reason #1 and the reason given by RMS, both a righty and a lefty should blow out of the right side of the mouth. However, according to reason #2, a lefty who wears tefillin on his right arm should blow shofar out of the left side of his mouth because the “protections” would be reversed.

The M”B in the Sha’ar haTziyun rejects this nafka minah (and therefore he tucks reason #2 in the Sha’ar haTziyun where most people won’t see it and get confused). When we speak of the protective power of tefillin, we are not speaking viz a viz the particular ba’al toke’a, but viz a viz ba’alei tekiya in general. Since the majority of people are righthanded and wear tefillin on their left arm, the shofar is blown from the right by all.

(R' Menashe haKatan in Mishaneh Halachos Mh”T O.C. #480 was asked halacha l’ma’aseh how a lefty ba’al toke’a should hold the shofar. He replied by quoting this M.B. B’dieved, one is yotzei either way.)

kedusha outside the ivory tower of the beis medrash

Some belated Torah on the parsha:

Among the brachos promised if we do the right thing is, “Y’kimcha Hashem lo l’am kadosh ka’asher nishba lach ki tishmor es mitzvos Hashem Elokecha v’halachta b’derachav” (28:9) – Hashem will sustain us as a holy people on the condition that we observe the mitzvos and "walk in His ways". The Netzi”v (and many others) asks: the list of brachos is prefaced in the very first pasuk of the chapter with the condition that they would be fulfilled only if we observe Hashem’s mitzvos, "V'haya im shamo'a..."; why is that condition repeated here again in pasuk 9 in the context of the bracha of "y'kimcha lo l'am kadosh"?

The key to understanding the pasuk lies in the words, “v’halachta b’derachav”, which Chazal interpret to mean that a person’s behavior should conform to the model of gemilus chessed demonstrated by Hashem, e.g. Hashem visited Avraham to heal the sick, Hashem helped bury the dead, etc., and therefore we should visit the sick, help bury the dead, and do other acts of chessed. A person may rightfully object that the social interaction that these mitzvos demands carries with it a price. A person who sits secluded in the Bais Medrash in private contemplation, locked in the ivory-tower of Torah, can rise to great heights of holiness and dveikus. However, once a person steps foot into the public domain, inevitably there is a hashpa’ah that the outside world has on a person’s dveikus and intensity.

Our pasuk answers that ta'anah. “Ki tishmor…v’halachta b’derachav” is not a condition – it’s a promise; not “if you observe… you will be holy”, but “when you observe… you will be holy”. Even though the observance of “v’halachta b’derachav” entails sacrificing the ivory tower of Torah, if done properly Hashem guarantees that “y’kimcha Hashem l’am kadosh”.

tshuvah and kochi v'otzem yadi

I rescued a nearly new copy of Chayei Mohara"N that I saw deposited in sheimos (I know what you Litvaks are thinking... ) and in the back there are a few pages called Sheva Amudei Emunach composed by R' Yitzchok Breiter which taken by themselves would have been worthy of rescue. One yesod which he writes regarding the idea of tshuvah is startling. When we think of tshuvah we imagine a person coming to the realization that he/she has not been acting as the Torah requires , deciding to improve his/her behavior, and in turn, assuming this change for the better will draw him/her closer to Hashem. Says R’ Yitzchok Breiter, such thoughts of tshuvah contain mixed within them the essential germ of all kefira, which is thinking “kochi v’otzem yadi”. Lack of success in avodas Hashem is not only because a person is not trying hard enough, and conversely success in avodah is not just about changing behavior to conform to a higher standard. These assumptions in effect say we are the ba’alim of Hashem’s relationship with us, whether for good or bad - kochi v'otzem yadi controls the entire dynamic! Tshuvah means accepting that we are not the ba’alim. Yeridos and obstacles are part of Hashem’s plan, and the reason we might not be successful is because (for whatever) reason Hashem has chosen not to give us success at this moment. In addition to changing our behavior, tshuvah demands heartfelt tefilah asking that Hashem, the true ba’alim, bring about a change in His relationship with us and allow us to draw closer.

Bavli vs. Yerushalmi on chatzi shiur

The gemara asks why the Mishna at the end of Yoma refers to eating on Yom Kippur as being "assur" and not "chayav", as one who eats on Y"K is chayav kareis. The gemara explains that the Mishna is dealing with a case where one ate a chatzi shiur which, according to Reish Lakish, is only an issur derabbanan but not a chiyuv kareis.

What is amazing is that the Yerushalmi at the beginning of the 6th perek of Terumos presents Reish Lakish as holding exactly the opposite view. According to the Yerushalmi, although Reish Lakish in other areas holds that chatzi shiur is only an issur derabbanan, davka by Yom Kippur he agrees with R' Yochanan that chatzi shiur is an issur d'oraysa.

The reasoning of the Yerushalmi actually seems to be as follows: When the Torah uses the term "achila" it implies a minimum shiur of a k'zayis. However, the Torah never uses the terms "achila" with respect to the prohibition of eating on Y"K -- it uses the term "inuy". Even eating the smallest amount of food diminishes the feeling of inuy.

What are we to make of these two versions of Reish Lakish completely at odds with with each other? The Tziyun Yerushalayim on the Yerushalmi quotes R' Ya'akov Emden as offering a creative way to reconcile the two. According to the Mishna, the chiyuv kareis for eating on Yom Kippur applies only if the amount of a k'koseves hagasah, a large date (larger than a k'zayis), is eaten. R' Y"E suggests that perhaps there are actually two levels of chatzi shiur. If less than a k'zayis was eaten on Y"K, both the Bavli and Yerushalmi agree that Reish Lakish would hold that the issur is only derabbanan -- since this amount does not constitute what the Torah usually calls achila, there is no Biblical chiyuv. The Yerushalmi Terumos is adding an additional chiddush that applies only where one ate more than a k'zayis on Yom Kippur but less than a k'koseves hagasah, i.e. less than the amount that would generate a chiyuv kareis. Although technically this achila can also be called a chatzi shiur with respect to Yom Kippur, since this achila surpasses the normal threshold for what constitutes achila in other areas, even Reish Lakish would hold it is Biblically prohibited on Yom Kippur as well.

bowing in the mikdash

Among the miracles of the Bais HaMikdash which the gemara describes (Yoma 21) is that when everyone came to Yerushalayim for aliya la'regel there was standing room only in the Mikdash, but miraculously there was sufficient space for everyone to bow. Why was this bowing necessary and why was extra space needed? Rashi explains that the miracle was needed so there could be 4 amos of space between each individual when reciting viduy (done while leaning over) so no one would overhear his/her neighbor's confession. The Maharasha offers a different reason for the extra space. Bowing in Mikdash was done as a response to hearing the Shem Hashem pronounced by the Kohein Gadol during the avodah of Yom haKippurim, just as we bow on Yom Kippur when we read the re-enactment of that avodah during Mussaf. This type of bowing entailed prostrating oneself on the floor, which takes up much more space than standing erect. The focus of Rash as well as the Maharasha seems to be on acts which we associate with Yom Kippur depsite the fact that the gemara refers to the miracle as occuring on aliya la'regel.

The Brisker Rav suggests that bowing was not a function of viduy or of hearing the Shem Hashem, but was a separate obligation incumbent upon anyone who visits the azarah. The GR"A comments on the pasuk in this week's parsha, "v'histachavisa lifnei Hashem Elokecha", that bowing is not as part of the halachic procedure of delivering the bikurim, but part of the ceremony of entering or leaving the Mikdash. Similarly, the Brisker Rav explains that this is why we say in our davening on the shalosh regalim we ask Hashem for the opportunity, "v'na'aleh v'nera'eh v'nishtachaveh lefanecha", to go up and appear in the Mikdash and bow there.

credit crunch

People usually call on hashgacha to explain the seemingly miraculous good that sometimes happens, e.g. in your typical chassidishe ma'aseh a person in need of a dowry for a daughter or some other tzorech will do some good deed and then happen upon a business deal or a lost wallet that contains precisely the sum of money needed. What are the odds of coming upon a lost wallet containing exactly the right sum, or finding a deal that results in exactly the needed gain at the right moment given the natural course of events? Such coincidence (it is claimed) can only be the result of Divine intervention.

I won't try to dissuade anyone from thinking along these lines, but the sword is double-edged. I don't know what it says about my personality, but I always find it easier to apply the same reasoning to negative outcomes rather than positive. Sometimes a ma'aseh turns out so badly that it seems only Divine intervention can explain what happened. When you consider a 158 year old company (Lehman Bros.) drive to bankrupcy in the course of weeks, insurance giants (AIG) reduced to nothing, banks one after the other on the verge of failure, one is faced with either assuming the best minds in business simultaneously have all been overtaken by a bout of very contagious stupid disease, or someone up there is pulling the strings in ways that are just out of everyone's control.

R' Elchanan in one of his ma'amarim, which if I recall correctly has no date attached but must have been written in the '30s, writes that the failing of the economy (at the time of his writing) was not caused by a lack of money, as plenty of people still had fortunes and great wealth. The economy failed because of a loss of confidence in the institutions of finance - a loss of faith in the economic system. What was true then is certainly true today, as the credit crunch is primarily a loss of confidence and trust. The key to understanding this phenomenon is the principle of middah k'neged middah. R' Elchahan writes that a loss of faith in worldly institutions comes about because of the greater loss of faith in our spiritual institutions - a failing of emunah. And only through the strengthening of emunah can we find the tools to emerge from such a crisis.

I am not a big fan of prophetically trying to attribute specific outcomes or events to specific sins, but I pass on R' Elchanan's insight for whatever it's worth. It's certainly worth spending a minute thinking about as the Dow and S & P find their way to lower and lower depths.

new issue of Kallah Magazine

The new issue of Kallah Magazine (www.kallahmagazine.com) put together by my wife came out today. You can already find copies in Queens and the 5 Towns -- NJ, Brooklyn, and others will have to wait until after Shabbos/next week.

homewoner mitzvos - ma'akeh and mezuzah

"Ki tivneh bayis chadash v'asisa ma'akeh l'gagecha". The Torah presents the mitzvah of ma'akeh, the command to build a fence around a roof or dangerous obstacle, as a necessary task when building a new home. However, the halacha is that even if one remodels an old home, or moves into an old home that lacks a proper fence, one is still obligated in the mitzvah of ma'akeh. Why does the Torah place the mitzvah specifically in the context of building a new home? The Netziv explains that the Torah is sending us a mussar lesson. Building and moving into a new home is an auspicious occasion, and it is only fitting that such an occasion be used not just move furniture and the appliances, but to do mitzvos. Ma'akeh is a way to seize the opportunity to lay such a mitzvah foundation.

But why teach this lesson using the example of ma'akeh? I would guess that only a small minority of homeowners have actually had the opportunity to perform the mitzvah of ma'akeh. Yet, every single owner of a new home has the opportunity to perform a different mitzvah -- the mitzvah of mezuzah. Why does the Torah not make the point that a new home should be established through performance of mitzvos by using the illustration of mezuzah?

The Netziv switches hats to halachic analysis to answer this question. He suggests a fundemental difference between ma'akeh and mezuzah: there is a prohibition of living in a home which does not have a ma'akeh installed; however, there is no prohibition of living in a home without a mezuzah. Such an argument is easy to digest if one accepts that ma'akeh is a lav while mezuzah is only a mitzvas aseh (as the Rambam holds) , but the Netziv goes a step further and makes his argument even according to Tosfos (Kiddushin 36) who holds that the lav of ma'akeh can be avoided so long as one intends to build one at a later time. Given that both ma'akeh and mezuzah are mitzvos aseh, why should there be a distinction? The Netziv explains (and further elaborates in Ha'amek Sh'eilah 126:7) that the mitzvah of ma'akeh is a prerequisite to moving into a home. However, the mitzvah of mezuzah is incumbent upon the resident of a home, i.e. the mitzvah does not take effect until after one has moved in. Ideally, one should perform the mitzvah of mezuzah immediately afterwards, but if one is prevented from doing so for whatever reason, one is not required to move out. In a nutshell, fulfillment of ma'akeh is a necessary condition of setting up residence; setting up residence is a necessary condition of becoming obligated in the mitzvah of mezuzah. Similar words, but very different outcomes. Moving in without a ma'akeh is an active violation of a mitzvah. Moving in before affixing a mezuzah merely establishes acondition of residence; the contination of that state of residence without a mezuzah is a passive violation of the mitzvah which should be performed.

This chiddush of the Netziv helps answer a question raised by R' Akiva Eiger (Shu"t Mh"K #9). R' Akiva Eiger asks why is it that every person who goes on an extended trip (e.g. spending the summer in a bungalow colony) does not make a bracha on the mitzvah of mezuzah when re-establishing residence in one's home? The implication of the question is that the act of taking up residence is what generates the obligation to affix a mezuzah, and hence when that act recurrs, a new obligation and new bracha is required. According to the Netziv, this is not the case at all. The act of taking up residence is not a mitzvah act; it is just a means to establishing a condition necessary for the mitzvah of mezuzah to then take effect. Once residnce is re-established, one cannot remain in a passive state without a mezuzah affixed to one's door, but since the mezuzah is already up, such a condition is automatically avoided. No new mitzvah occurs, and no new bracha is required.

minuy melech and binyan hamikdash

In a comment to the last post Anon1 referd to a statement by R' H. Shachter based on a Ramban in P' Korach that the requirement of the mitzvah of malchus is to establish a Jewish government, not necessarily a Jewish monarchy. I do not have this sefer of R' Shachter's to check the source, but my guess is that the Ramban in question is 16:22 (if not, this post can stand on its own.) The Ramban writes that Bnei Yisrael were guilty of delaying the building of Mikdash because they failed to seize the opportunity to start construction in the days of the shoftim. Instead, they waited until David HaMelech took the initiative. The Ramban's comment seems puzzling in light of Sanhedrin (20) which which presents the order of mitzvos Bnei Yisrael must perform upon entering Eretz Yisrael. The gemara writes that first the mitzvah of appointing a King must be fulfilled, and only afterwards can the mitzvah of building a Mikdash begin. If so, during the days of the shoftim, when no king had yet been appointed, there did not yet exist the possibility of starting construction on the Mikdash. How could BN"Y be accused of delay? QED, some (possibly R' Shachter) would argue, according to Ramban the shoftim were considered a fulfillment of the mitzvah of malchus by virtue of being a Jewish government.

It is possible (see Margoliyas haYam Sanhedrin 20:20) to salvage the Ramban without necessarily being forced to such a sweeping conclusion. Perhaps we can distinguish between the need for malchus as a prerequisite for binyan Mikdash, for which any form of Jewish government suffices, and the mitzvah of establishing a monarchy as an indepedendent goal in its own right, which might demand specifically the appointment of a king.

the mitzvah to appoint a king - is democracy assur?

One the one hand, Chazal teach us that appointing a king is one of the 613 mitzvos, yet on the other hand, the Torah presents the idea of appointing a king as a response to the demands of the people, "V'amarta asima alay melech…", implying that where there is no demand, there is no requirement to appoint a king. The Netziv explains that there is no contradiction. The mitzvah of appointing a king does not require imposing a monarchy willy-nilly. There is a built-in condition to the mitzvah that calls it into effect only should the people demand a monarchy. In some countries a democracy may be the preferred form of government, in other countries other systems may work. However, should the people demand a king, the Sanhedrin is commanded to then act on that demand and put in place a monarchy which conforms to the principles set down in our parsha.

[This post has been updated - the idea of an issur aseh which I mentioned originally is in fact rejected by the Netziv.]

beis din of the city which performs eglah arufah

If a murdered body is found and the crime cannot be solved, the city closest to the body must perform the ceremony of eglah arufah found at the end of our parsha. The Netzi"v quotes a machlokes Bavli and Yerushalmi regarding the meaning of the declaration by the Zekeinim that "eineinu lo ra'u". The Bavli interprets the pasuk to mean that the Zekeinim were not aware of the victim; they did not knowingly ignore a stranger in their midst and send him off wandering alone in the wilderness without offering proper hospitality and a place to stay. The Yerushalmi, however, interprets the declaration to mean the Zekeinim were not aware of the murderer; they did not knowingly ignore a criminal in their midst and allow him to continue to prey on the innocent.

The Netziv suggests a nafka minah between the two approaches. The measurement to determine which city is closest only takes into consideration cities which have a Beis Din. What type of Beis Din is required? According to the Bavli, it would seem any Beis Din of three is sufficient. However, according the the Yerushalmi that reads the pasuk as addressing itself to Zekeinim who could punish a murderer, a Beis Din of twenty-three capable of carrying out capital punishment is required. The Rambam paskens that a B"D of 23 is needed.

The halacha is that the ir miklat city of refuge must have Zekeinim in residence. The Minchas Chinuch (410) questions what type of B"D is necessary and suggests the law of eglah arufah which requires 23 as a point of comparison. Based on the Netziv's approach one can distinguish between the cases. The requirement of B"D by eglah arufah according to the Yerushalmi is a function of the necessity of being able to administer capital punishment; the same requirement is not needed for ir miklat.

l'shichno tidrishu - nevuah as a requirement for binyan habayis

My impression from Rashi in last week’s parsha was that the halacha requiring a Navi to put a stamp of approval on the selection of the makom mikdash (Rashi on “l’shichno tidrishu”) was a one time event. The Navi was needed to identify the makom mikdash, but once selected, there is no requirement for further consent of a Navi to start building again.

R’ Ahron Soloveitchik in his sefer Perach Mateh Aharon is medayek in the Rambam otherwise. The Rambam prefaces his description of the mizbeiyach (Beis haBechira ch 2) with a historical overview – the mizbeiyach was the place from which the dust to create Adam was taken, it was the place Noach offered korbanos, it was the place of the Akeidah, and because of its great historical significance its location was known b’mesorah. Yet, continues the Rambam (based on Zevachim 62), the rebuilding of Bayis Sheni required that a Navi certify the location of the mizbeiyach. Even though there was no question as to where the mizbeiyach should be located, a stamp of approval from a Navi was still necessary.

I did a quick check of R’ Kalisher’s Derishat Tzion, which collects some of the correspondence between R’ Kaslisher and the Aruch laNer, R’ Akiva Eiger, and others regarding whether a mizbeiyach could be built to offer korbanos in contemporary times. The Aruch laNer raises an objection based on this gemara in Zevachim, but R’ Kalsiher seems to interpret the need for a Navi mentioned by the gemara as based on inexact knowledge of the makom mizbeiyach. Since we today have the kosel extant from Bayis Sheni (while those rebuilding Bayis Sheni had nothing), R’ Kalisher felt that we could figure out the makom mizbeiyach. I could not find any treatment of this Rambam in the letters, but I was skimming quickly.

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.