Friday, August 31, 2007

Bilvavi Mishkan Evneh shiurim

Dixie Yid has a link to download all the shiruim given by R’ Itamar Shwartz (author of Bilvavi Mishkan Evneh) during his recent trip to the US.

thinking skills - mah kashe l'Rashi (II)

Instead of my cherry picking an example of the value of asking "mah kashe l'Rashi" (see previous post), you can find even better examples randomly from the first Mishna of many masechtot:

1) Rashi on the first Mishna in Kiddushin: “isha nikneis – l’ba’alah”. If not to her husband, to whom would we think this woman is mekudeshet? Mah kashe l’Rashi that required this explanation?

2) First Rashi in Kesubos: “besulah niseis – takanas chachamim hi shetinasei b’revi’i b’shabbos…” Question: Mah kashe l’Rashi? Is the word “revi’i” ambiguous because it can refer to a date as well as a day (though its meaning is clear from the Mishna’s continuation and the dibur hamaschil is not the word revi’i), or is there some reason we would not have understood the Mishna to be a takanah (what else could it be)?

3) First Rashi in Gittin: “ha’mavi – kol chutz la’aretz kari medinas hayam bar m’Bavel”. Question: Mah kashe l’Rashi that prompted his defining medinas hayam as “everywhere” outside Eretz Yisrael – the continuation of the Mishna itself implies that not all places in chutz la’aretz are treated equally. Furthermore, what prompted the mention of Bavel here? Are these two questions related?

Every one of these issues is discussed by rishonim or achronim, but the question that prompted them is simple enough for anyone to ask. Many of the answers are beyond what a boy in mesivta could think of or even understand, but she’eilat chacham chatzi tshuvah! – before getting to answers you have to know how to ask the right questions. Instead of randomly "hocking" away, here is a methodology.

In the comments to the previous post on covering ground vs. learning some wrote that you can’t have iyun without bekiyus. I agree to a certain extent, but I argued that bekiyus can be done independently from a rebbe. The point I am trying to make here is that even without learning anything other than gemara and Rashi a person can ask (and at some point develop answers for) intelligent questions that allow for a deeper appreciation of any sugya.

But these type questions are not asked by R’ Chaim? But it’s not going to lead to asking a stirah in Rambam and coming up with a tzvei dinim sevara? You’re right. But tzvei dinim can’t replace reading Rashi. And when students say over tzvei dinim sevaras because they can parrot their rebbe and know every 2 rambams thrown at them must lead to some Brisker-type conceptual chiluk then iyun has become bekiyus for the sake of saying a shtickel torah, not real havanah.

I am wondering if there are other simple questions that can be re-used over and over and which pay dividends like this – something to watch out for. In writing this up I found that I like the “mah kashe l’Rashi” so much I’m thinking of posting other examples on a more regular basis – we’ll see…

teaching gemara thinking skills - mah kashe l'rashi?

Matt raised the question in the comments to a previous post on how to teach thinking. I don’t think (no pun intended) there is an easy answer to that question and no single answer that works in all cases, e.g. Edward de Bono’s six thinking hats is a nice approach to encourage considering different sides of an issue, but is not going to work for a difficult rashi. There is definitely a need for someone to work out a systematic approach to teaching textual skills in the context of gemara learning, but until someone does that I don’t understand why schools ignore one fantastic resource already out there.

The master of a didactic method that emphasized thinking has to have been Nechama Leibowitz. This article summarizes some of her approach, and the gilyanot give a good flavor of her methodology. If it worked for chumash, why has no one applied the same principles to gemara? As an example, I want to focus on one method she popularized - asking “mah kashe l’Rashi”. Instead of emphasizing just being able to repeat what Rashi says (which is itself valuable, as there is no more canonical peirush than Rashi’s), the question of "mah kashe l'Rashi" shifts the focus to understanding and grappling with difficulties in the text. Instead of knowing what Rashi says, the emphasis is on knowing how Rashi thought. Why every time a student sees a Rashi on a piece of gemara are they not automatically trained to ask (even if they cannot always answer) the magic question of “mah kashe l’Rashi”?

I can cherry pick an example from what I was learning with my son a few nights ago: In Bava Kama 5a the gemara mentions the act of “mefagel” as a form of nezek. I asked my son what pigul meats and he remembered that it is the result of offering a korban with intent to eat it after the proper time. Rashi in B”K explains “mefagel” to mean offering a korban chatas with the intent for it to be a korban shelamim. Question: mah kashe l’Rashi that prompted redefining pigul?

(Note: for the sake of clarity I decided to break this long post in two - more examples to come).

Thursday, August 30, 2007


My wife sometimes runs across people who have a true sense of yashrus in their business dealings, but sadly, she more often runs across people who seem to forget there is a cheilek of shulchan aruch called "choshen mishpat". Yesterday she got an e-mail and phone call from someone who wanted to ask mechila before Rosh haShana for not attributing to her magazine a dvar torah (one I had written) which the person got off her website. I was more than a little gratified (as was she) and impressed by that person’s thoughtfulness. The same cannot be said of the person who yesterday agreed to purchase advertising and asked that they be faxed a contract but today did not return any phone calls and instead had a secretary say that she guesses he changed his mind. I guess the reneger is a notch better than the people who are months late is paying for advertising they already received and the person who out-and-out stiffed my wife for payment. Does knowing that the former episode involved a reconstructionist rabbi and the latter episodes involved "frum" people make me cynical? You bet it does! : )

mitzvos lav l'henos nitnu (II)

R’ Shterbruch in Moadim u’Zmanin answers the Avnei Miluim’s question on mitzvos lav l’henos nitnu (see post here). The Ritva describes the heter to remarry as incidental to chalitzah and the status of tahara as incidental to tevila and not direct hana’ah. However, the case of eiruv is different. The issur of techum is not an extrinsic issur which eiruv happens to lift, but is intrinsically related to the eiruv. The issur techum depends by definition on one’s makom shevisa; eiruv does not lift that issur, but simply moves the makom shevisa so the techum has different boundaries. One might very well say that eiruv is not a matir at all, but is what defines the issur of techum. Therefore, since the hana’ah of moving the techum is a direct attribute of the eiruv, one cannot apply the principle of mitzvos lav l’henos nitnu.

The Rashba and Ran debate whether mitzvos lav l’henos nitnu means simply that the reward for mitzvos is not considered a hana’ah (which is what the Ritva’s question suggested) or whether it means that the physical pleasure that may accompany a mitzvah is also not considered hana’ah. The Ran asks: according to the Rashba’s opinion that mitzvos lav l’henos nitnu applies even when there is actual physical hana’ah, how does one understand the gemara prohibiting tevilah in a cool spring on a hot day (RH 28)? Why in that case is the physical hana'ah a block to performing the mitzvah?

Wednesday, August 29, 2007

learning vs. covering ground

My son finished part 2 of his summer projects last night when he made a siyum on masechet Rosh haShana. Since I have limited time to learn with him on a daily basis, he has been using my mp3 player with English daf-yomi shiurim to cover more ground on his own. Obviously this is not a substitute for being able to “make a leining”, but it helps build bekiyus and it is probably no worse than the daf yomi many people do with the help of a shiur. Thanks to all the people who suggested getting him to use Kehati in Hebrew; he started using it for mishnayos moed where he already has learned some of the masechtos and hopefully that will bear fruit.

My wife was recently talking to another parent of an 8th-grader-to-be who thought Mesivta Ploni was a decent option because they covered ground. My inclination (we haven’t really started looking into H.S.’s yet) is to avoid Mesivta Ploni for that very reason – they cover ground, but make no attempt to develop a derech halimud. If all I want is my son to know a lot of halachic “facts”, an mp3 player suffices (until he learns to read a sugya himself), but that is the bare minimum of what learning entails. Ultimately, the gauge of a lamdan is being able to independently “think in learning”, i.e. to be develop a methodology to analyzing problems in a sugya and discovering solutions. My impression is that some mesivta shiurim manage to turn iyun into bekiyus – the rebbe says over more rishonim/achronim on the daf, but it just amounts to more “facts” to accumulate rather than a process of thinking. Hopefully we will find a H.S. that will put him on the right track (suggestions welcome!). In the meantime, he has started on the second perek of sukkah while I try to finish R”H myself before Y”T hits us!

mitzvos lav l'henos nitnu

If someone took a neder not to benefit from a shofar they would still be permitted to use a shofr for the mitzvah of tekiya because mitzvos lav l’henos nitnu, mitzvos are not considered a form of hana’ah. The Ritva (Sukkah 31) questions why this is so – don’t we receive the hana’ah of reward in this world or the next for every mitzvah performed? The Ritva answers that hana’ah is defined as a direct benefit received from an object; the reward for mitzvah performance is indirectly caused (gorem) by fulfillment of the mitzvah, but is not a quality of the object being used. For this same reason one is permitted to perform chalitzah with a shoe that had been used for avodah zarah, or use a mikveh that one took a neder not to have benefit from – the change in status effected by the process of chalitzah or tevilah so the women can now remarry and the person is tahor does not stem directly from the shoe or water, but is an indirect consequence of the mitzvah being fulfilled.

The gemara (Eiruvin 31) writes that whether an eiruv may be placed in a cemetery (which poses a problem of hana’ah from the dead) depends on whether an eiruv should be made only for the purpose of mitzvah-related travel, in which case we assume mitzvos lav l’henos nitnu, or even for personal enjoyment. The Avnei Miluim (28:60) asks: based on the Rtiva’s explanation, just like the personal benefit of becoming tahor or a woman being allowed to remarry is not counted as a hana’ah because these are consequences of mitzvah performance, so too, even of one gains the personal benefit of a larger area for personal travel on shabbos, since this is just a consequence of fulfilling the mitzvah of eiruv, why not apply mitzvos lav l’henos nitnu and allow the eiruv to be placed in a cemetary in all cases?

Tuesday, August 28, 2007

quality vs. quantity: shiur tefach by ma'akah, shofar

The gemara (Eiruvin 3b) identifies two ways of measuring tefachim: tefachin sochakos, a wider measure (spread fingers), and tefachim atzvos, a narrower measure (fingers held together). When it comes to Torah law we usually adopt the stricter measure to avoid any doubt. The Minchas Chinuch asks why the poskim to do not make clear that the 10 tefach shiur required for a ma’akah built on a roof must be measured using larger tefachim l’chumra? The Emek Bracha answers that issue of sochakos/atzvos is relevant only when a specific quantity must be measured. The mitzvah of ma’akah is not to build a railing which has a specific quantity of height; the mitzvah is to build a ma’alah which has the quality of preventing someone from falling off the roof, a quality which Chazal tell us 10 tefachim is sufficient to accomplish. We don’t apply the rule of quantifying l’chumra when dealing in qualities of a mitzvah object.

The Emek Bracha uses a similar sevara to explain the shiur of shofar. The gemara tells us that a shofar must be big enough to be held in one hand with the ends seen sticking out slightly, which poskim explain is equivalent to a tefach. It seems that it suffices to measure using the smaller tefach shiur in this case, even though the mitzvah of shofar is d’oraysa. Why do we not require the stricter measure? The Emek Bracha again explains that the shiur of shofar is not a quantitative measure, but is a quality of the object, i.e. a horn slightly larger than the hand, and therefore quantitative stringencies do not apply.

Monday, August 27, 2007

chinuch and chumra

In an earlier post I raised the question of whether one should teach a child chumros, or wait until the kid gets older and either picks up the practices independently or can at least appreciate them better. I found in Shu”t Ad Nidbiru (vol 14 #33) that R’ Binyamin Zilber was asked this question in the context of a tefillin shayla. The Satmar Rebbe’s opinion apparently is that a lefty should put tefillin (after fulfilling the mitzvah by putting them on his right hand) on his left hand (like righty’s do) based on an AR”I – a chumra not brought in other poskim. A father asked whether he should teach this chumra to his lefty son who was near bar mitzvah, or wait until the child was more mature. Unfortunately for my purpose R’ Zilber spends the majority of the tshuvah disagreeing with the whole chumra, but in the last paragraph he writes that if a chumra is valid a child should keep it from bar mitzvah.

Friday, August 24, 2007

recommendation for book to learn hebrew

When my son learns mishnayos he uses the English Kehati series, which he has gotten comfortable with, but I am not very happy with that. One of the big differences between my girls’ school’s curriculum and my son’s school is that the girls learn Hebrew fairly well, i.e. they can take any pasuk in chumash and identify the shorashim of words, otiyot shimuch, etc., translate the words, and manage to speak and write a fairly understandable Hebrew. The girls’ school tries to teach ivrit b’ivrit but in chumash will do English translation for harder words; they also learn some grammar and are occasionally assigned “chiburim” to write. My son’s school half-heartedly uses the Lashon haTorah workbook series which my son admits to not pay attention to. They translate only into English, none of the Rebbeim speak Hebrew, and certainly none of the boys could engage in any conversational Hebrew. The result is that my son is chained to English crutches for his learning. Can anyone out there recommend a Hebrew workbook, audio program, or something that can jumpstart his learning and understanding Hebrew?

For the record, I am biased from my own experience and believe ivrit b'ivrit instruction is the way to go, but no boys school that I know of really carries it out. In the long run it makes a huge difference. Reading in Hebrew/Aramaic and then mentally translating sentence by sentence back to English is not the same as being able to read and undertstand a book/sefer in the language it was written in.

more pilpul on kan tzipor

Since the Midrash lumps together kan tzipor, milah, and the issur of offering as a korban an animal less than 8 days old all as expressions of G-d’s mercy, why does the Mishna single out the mention kan tzipor as objectionable – why not give all three examples?

Sidduro Shel Shabbos answers: according to the opinion that G-d’s commandments are gezeiros and not based on mercy, there clearly is a problem with mentioning milah/korban as merciful because it might lead to the incorrect conclusion that milah before day 8 is valid (see yesterday’s post!). The Mishna highlights the even bigger chiddush, that even mentioning mercy in reference to kan tzipor, where there is no danger of drawing an incorrect halachic conclusion, is problematic.

According to the opinion that the problem with kan tzipor is that it singles out birds as beneficiaries of G-d’s mercy to the exclusion of other creations, the reason the Mishna does not mention all three cases the Midrash gives - birds, animals, man – is because incorporating all three in one prayer would be permitted, as no single creation is singled out.

One other note: the S.S.S. questions whether can one infer from the fact that the Midrash/Mishna draws on a case of kan tzipor to illustrate G-d’s mercy on birds and does not use the din of not bringing a korban before day 8 that a bird (torim, bnei yonah) would be acceptable as a korban from birth without waiting 8 days.

r' tzadok hakohen

Rabbi Sedley’s blog notes that yesterday was the yahrtzeit of R’ Tzadok haKohen. Check out the link he provides to order a copy of Tzidkas haTzadik and Machsheves Charutz for only $7.50 + shipping (I know nothing about and gain nothing from the institution selling the seforim – I’m just passing on the link because $7.50 sounds like a steal to add these to your bookshelf if you don’t own copies yet).

Thursday, August 23, 2007

author of Bilvavi Mishkan Evneh speaking in US

Dixie Yid has info here on the US speaking schedule of the author of Bilvavi Mishkan Evneh. For 5 Towners, note that he will be in Aish Kodesh on Sun night at 8:30.

UPDATE: Please check Dixie Yid's blog for change in time - the shiur has been postponed from Sun night.

milah before 8th day and reasons for mitzvos

The gemara (Brachos 32) presents two reasons why one is not permitted to say “ad kan tzipor tagiyu rachamecha” in davening – 1) because saying G-d is merciful on birds implies he is less merciful on other creatures, which breeds enmity in creation; 2) because G-d’s commandments are decrees; G-d is not motivated by extrinsic reasons like mercy (see previous posts on this issue. The Midrash sides with the view that mitzvos are given to be merciful, and tosses into this same discussion the commandment not to sacrifice an animal less than a week old and to perform milah only on the eighth day so the animal and baby have a chance to reach full strength.

The Sidduro shel Shabbos (shoresh 4) suggests that the machlokes (Rama/Shach Y.D. 261) of whether a baby who was given a milah before the eighth day needs hatafas dam bris depends on this issue. If the reason for waiting until the eighth day sis simply a gezeirah with no reason, then the preceding days count for nothing. But if the reason for waiting until the eighth day is to be merciful to the baby, if one went ahead and did the milah early there is no reason ex post facto to invalidate the bris. (Litvishe readers, please don’t jump on me too much for posting this : )

Wednesday, August 22, 2007

harry potter, etc.

A brief break from the regular topics for a word on Potter. At the beginning of the summer I told my daughter if she wants some reading to keep her busy do she might try the Harry Potter series, and I volunteered to read in parallel (for some reason none of my other kids were interested in Potter). She is still going, but I finished book seven yesterday (not quite a siyum because I skipped book one, having read it years ago, and I skipped book five because my daughter and wife were reading it as well and I could not pry it away). First of all, I hate to put it so crudely, but the thought by some that reading books about magic will lead children astray from frumkeit is simply silly, as is the idea that the series has Xstian overtones. If you want Xstian overtones read “The Lion, the Witch, and the Wardrobe” (arguably better than any book in the Potter series). As for the meat and potatoes of the series: I read the first book years ago and thought it was second rate, and while the series as a whole has many bright patches, nothing has caused me to think of Harry Potter as great literature. The books do get better as the series goes on, but it seems to me that many of the characters are two-dimensional, the morals in the early books seem afterthoughts to the plot, at points the story drags for no reason, and there is a general superficiality to all the themes touched on. I do like the way Rowling manages to tie the plot together in the end, but Potter is too much about plot and not enough about thought and feeling. At one point in watching one of the DVD’s I noticed that there was a Dickensian quality to the Diagnosis Alley set, which left me wishing Rowlings had borrowed more from Dickens and less from Star Wars (was the revenge/control idea at the end of five lifted straight from Return of the Jedi?). Don’t get me wrong – the books are good, they are entertaining; they just fall short of being truly great. I have now seen all the movies as well, and they seem to improve as the series goes on (the critics are way off base on their disappointment with five). Even before hitting book seven (no spoilers for those who haven’t read it) my favorite character was Snape (I think my wife said it has something to do with my personality : ), but it’s not much of a contest – what exactly does Prof McGonagall do that would interest anyone? And aside from popping up at the end to deliver some contrived moral, and appearing all knowing, what makes Dumbledore worthy of our interest in the early books? Oh well – I’ll stop complaining now. Maybe I’ve just outgrown this type stuff (though I have enjoyed what I have read of "A Series of Unfortunate Events"). I haven’t read fantasy or sci fi in ages so I have little to compare Potter to… is Rowling maybe another E Nesbit? I imagine the series is better than much of what is out there, but I still feel that something that gets so much attention should be truly great and not just good or above average. For those who have done the usual (Dahl, Pullman, Sachar, L'Engele, the Potter series, etc.) any recommendations of undiscovered gems that we should read?

mamzer talmid chacham vs. kohen gadol am ha'aretz

The last Mishna in Horiyos lists the order in which people should be saved in a life-or-death crisis (e.g. who gets in the lifeboat first): kohen, levi, yisrael, mamzer, nasin, ger, freed slave. However, concludes the Mishna, this rule is true only where comparing people of equal scholarship - even a mamzer who is a talmid chacham takes precedence over a kohen gadol who is an am ha’aretz.

My son was medayek: if the Mishna wanted to contrast the extreme cases of a talmid chacham with tainted lineage vs. the kohen hagol am ha’aretz, why choose the case of a talmid chacham mamzer? The Mishna should have illustrated the point with the most extreme case of bad lineage, the case of a freed eved!

The Tiferes Yisrael makes the same observation and concludes that a talmid chacham who is a nasin, ger, or freed eved would not in fact take precedence over a kohen gadol. The status of talmid chacham only tips the scales in favor of someone who is a yisrael, levi, or mamzer.

On that note, my son gets a mazel tov for finishing the mishnayos in Seder Nezikin, which was certainly a productive use of his summer break, and I am happy to see he is learning to make diyukim and ask thoughtful questions.

kedushas eretz yisrael (II)

Two other sources for the distinction between kedushas ha’aretz and the “shem” Eretz Yisrael:

1) The Rambam writes (Rotzeiach 10:1) that eglah arufah can be performed only in Eretz Yisrael and Eiver haYarden. Even though Eiver haYarden has no kedushas ha’aretz (though see previous post here) it is still within the boundaries of land designated as belonging to Am Yisrael.

2) R’ Ahron Soloveitchik quoted the opinion of the Kaftor vaFerach that the issur of leaving Eretz Yisrael applies even to those places conquered by Yehoshua, whether or not they were re-conquered by Ezra. The Ramban similarly writes (beg of Gittin) that the concept of loving Eretz Yisrael extends even to those portions which have no kedushas ha’aretz but are part of the land promised to the Avos.

Tuesday, August 21, 2007

kedushas eretz yisrael

The Rambam (Sanhedrin 4:6) quotes the halacha that smicha can be given only in Eretz Yisrael, the boundaries of which are defined by those areas captured by Yehoshua.
וכל ארץ ישראל שהחזיקו בה עולי מצריים, ראויה לסמיכה.

The Minchas Chinuch asks: the Rambam elsewhere (Hil Terumos 1:5) writes that the kedusha of Eretz Yisrael established by Yehoshua’s conquest was negated by the first exile; Eretz Yisrael was resanctified by Ezra when the nation returned from Bavel, and only areas sanctified by this second enduring kedusha are included in the halachic boundaries of Eretz Yisrael. Why with respect to smicha does the Rambam refer to the original boundaries, which were negated?

Rav Soloveitchik quoted an idea from his father to answer this question. In Hilchos Terumos the Rambam is discussing the sanctity of the land viz. agricultural mitzvos. In that context, the Rambam addresses himself to defining what areas of the Land were endowed with kedusha by Ezra. However, the idea of Eretz Yisrael as the land chosen by G-d and promised to the Jewish people encompasses far more area than that which Ezra reclaimed. When it comes to smicha, the Rambam invokes this far broader concept. Smicha is not dependent on the sanctity of the land, more broadly on the idea of a promised homeland in which the transmission of mesorah can function as an ideal. There are many other proofs to this idea of R' Moshe Soloveitchik - maybe more on this in later posts.

Monday, August 20, 2007

psak on hashkafa and the issue of suffering

Shabbos 55a quotes Rav Ami that “ain misah b’lo cheit v’ain yisurim b’lo avon”, there is no death and suffering not caused by sin. After some back and forth, the gemara concludes with a “tiyuvta d’Rav Ami tiyuvta”, Rav Ami’s opinion was proven wrong because of a contradictory braysa.

I’m wondering how those who are convinced that there can be no psak in areas of hashkafa/belief read this gemara? If the gemara can label a belief wrong because of contrary evidence from a braysa, why can we not label a belief wrong because of contrary evidence from a majority of Rishonim? What’s the difference between saying Rav Ami held a view which the mesorah rejected and saying some Rishonim held views which the mesorah rejected?

While on the topic, Rashi’s writes (Brachos 5) that yisurim shel ahavah are brought on a tzadik to increase merit, not in response to any sin of the tzadik. Ramban in Toras haAdam rejects this idea that suffering can occur without sin (see previous post here). According to the gemara’s conclusion that Rav Ami is rejected, the Ramban’s argument seems much weaker.

batei din of the shevatim and lo tasur

The Ramban interprets the command to appoint a Bais Din “lishvatecha” to mean that each sheivet had a supreme court that was the final arbiter of issues that related to that sheivet and which was empowered to enact takanos:

כדרך שסנהדרי גדולה ממונה על כל בתי דינין של כל ישראל, כך יהא ב"ד אחד ממונה על כל שבט ושבט
ואם הוצרכו לתקן ולגזור דבר על שבט שלהם גוזרין ומתקנין והיא לשבט כגזרת סנהדרי גדולה על כל ישראל

Although the issur of “lo tasur” applies prima facie only to the Sanhedrin (see Rambam, Chinuch), since the Ramban compares the supreme court B”D of each sheivet to the Sanhedrin, I was wondering whether the issur of lo tasur would extend to their takanos as well.

Friday, August 17, 2007

kohen and shofet - knowledge as inspiration

When faced with a difficult case of Torah law, the Torah tells us to go to “hakohanim halevi’im, v’el hashofet” (17:8), and warns not to stray from the advice of “hakohen ha’omeid l’shareis es Hashem Elokecha, oh el hashofet”(17:12). The role of “shofet”, referring to the Sanhedrin in Yerushalayim, the “court of last resort”, is obvious in determining the final word on matters of halacha, but what is the role of the “kohen” in this process? And as if to head of our interpreting the “kohen” here as Torah-teacher, the Torah stresses the ritual role of kohen, the one who is “omeid l’shareis”, a servent in the Mikdash.

Perhaps the message of the parsha is that investigation into Torah law should be pursued not just as a quest for knowledge, but as a quest for religious inspiration and insight. Doubt about Torah law is not just a result of lack of information, but is also a result spiritual accomplishment not yet been attained.

The “shofet” can instruct and inform, but without the “kohen” to uplift, knowledge is sterile and incomplete, and doubt cannot be overcome. Only when their message is taken together can the kohen and shofet resolve the difficulties we bring before them. (based on Maor v'Shemesh)

3 Elul - Rav Kook

Today, 3 Elul, is the yahrtzeit of Rav Kook. There are perhaps no more fitting words for our time than those said by R” Shaul Yisraeli at the first yahrtzeit:

הרק חלום יפה ארג לנו רבנו זצ"ל? הרק דמיונות חזה לנו והמציאות לא תכירם? האומנם מושחתת היא נפש האדם עד תומה ואף ישראל אבדה לו נשמתו בין גלות לגלות? האמנם לריק תם הזרע אשר זרע רבנו על לבבות העם? - לא נכחד, יש ועולה רעיון זה על לבנו. יש ולמראה הכיעור והניוול, אשר עלינו להתנגש בהם מדי יום ביומו, נעקרת מלבנו כל מחשבה אצילית על האדם. עוד סיוט הדמים הולך ונמשך בימינו אלה בארץ חמדתנו, ולמה נתעלם - לא ראינו את מצפון העמים מתעורר להתריע ולתבע את הצדק. ואף גם זאת - ראה ראינו את הפירוד והמחלוקת והשאיפות הזרות אשר קנו להם זכות אזרח ברחובותינו אנו ורק צרת הרבים היא שהועילה לפכחנו במקצת.

ברם התשובה על כל ההיסוסים והפקפוקים תהיה לנו האישיות המזהירה של רבנו הגדול עצמו. הנשמה הנשגבה הזאת בעצם מציאותה היא המאשרת לנו, כי עוד רב עשרו של אוצר הנשמות הישראלי ואם עדיין לא זרחו עלינו קרני אורו - בא יבאו עתם.

It is easy to dismiss the idealism found in Rav Kook’s writings as incompatible with the political and social disharmony in Israel, as incompatible with a world filled with danger and terror. Yet think of how much dimmer our reality would be if we did not have that vision and aspiration taught by Rav Kook, which one day will hopefully be realized.

Thursday, August 16, 2007

obligation to wage war and kill seven nations and amalek

The Chinuch writes that the prohibition of showing fear in battle and the other mitzvos that apply to battle (e.g. yateid al azeinecha) are incumbent upon men and not women, as women do not go out to battle. Since these mitzvos apply to milchamos mitzvah, wars against Amalek and the Seven Nations of Canaan, as well as milchamos reshus, the Minchas Chinuch asks why women are exempt - the Mishna tells us that even a kallah must go out from her chuppah to fight in a milchemes mitzvah.

The Rambam (Melachim 7:1) writes that the Mashuach Milchama read the parsha warning not to fear and granting dispensation from battle for a newlywed, someone who had just built a house, or someone who planted a vineyard before all battles, both milchamos mitzvah and reshus. Ra’avad, however, holds that the list of dispensations are not read before a milchemes mitzvah. No one is exempted from serving in battle during a milchemes mitzvah - again, as the Mishna writes, even a kallah goes out to fight (how about a kallahmagazine article on warfare?) – so there is no need to announce the normal dispensations. Why does the Rambam disagree?

Rav Soloveitchik explained that aside from the mitzvah of waging war (chovas tzibur) against Amalek and the Seven Nations, there is an obligation (chovas yachid) incumbent upon each Jew to kill members of these nations (Melachim 7:4). The participation of women in battle is not based on the communal obligation of warfare, but on their mitzvah as individuals to fight against these evil nations. This does not effect their exemption from mitzvos that relate to the communal act of war. The same reasoning applies to the reading of the Mashuach Milchama. There still exists a dispensation from the communal act of war for those people normally exempted, but they must participate in some way to fulfill their obligation as individuals to assist the destruction of evil.

why nevuah is called divrei kabbalah

I think most people would guess that the gemara calls words of a Navi “divrei kabbalah” because prophecy is received (k-b-l) from G-d, which is exactly how Rashi (Chulin 137a) explains it. Interestingly, some Rishonim (see Shita Mekubetzet B”K 2) write that nevuah is called “kabbalah” based on the same root as “koveil”, to complain, because the Nevi’im were constantly complaining about the bad behavior of Klal Yisrael.
(Prediction: someone out there is going to leave me a comment pointing me to a Mahart”z Chiyus somewhere – fire away!)

Wednesday, August 15, 2007

elul and y'mei ratzon

A cause/effect chakirah for Elul: Is it the spiritual toil during these y’mei ratzon which triggers the kaparah of Yom Kippur, or does the kaparah of Yom Kippur have a retroactive effect which triggers having a period of y’mei ratzon?

inspirational story

Akiva over at Mystical Paths links to (and summarizes) this beautiful story – enjoy.

kinyanei kesef

According to R’ Yochanan, the Torah recognizes kinyanei kesef, i.e. paying for something completes a purchase, but the Chachamim made a takanah that a sale is not complete until meshicha, i.e. until the purchaser claims his property. Does this takana uproot kinyanei kesef, or is it an additional level of kinyan on top of kinyanei kesef?

The Rambam in Hil Terumos (9:10) writes that if a Yisrael purchases a cow from a Kohein using kesef, even though meshicha was not yet done, the cow cannot be fed terumah.
ייראה לי, שאם מכר הכוהן פרתו לישראל, ולקח הדמים--אף על פי שעדיין לא משך הלוקח, הרי זה אסור להאכילה תרומה: שדין תורה מעות קונות, כמו שיתבאר בהלכות מקח וממכר. ואם מכר ישראל לכוהן--אף על פי שנתן הדמים, לא תאכל בתרומה עד שימשוך
It seems from the Rambam that at least l’chumra kinyanei kesef are effective.

Yet, the Rambam writes in Hil Me’ila (6:16) that if someone takes money from hekdesh and buys something with it, there is no issur me’ila until the sale is completed with a meshicha.
קנה בה חפץ, ולא משך--אם מן הגוי, מעל; ואם מישראל, לא מעל.

Achronim ask: Why with respect to terumah does the Rambam hold that kinyanei kesef are chal l’chumra, but with respect to me’ila the issur is not chal until the meshicha is done, l’kula?

Tuesday, August 14, 2007

me'ila = stealing from hekdesh

I mentioned last week that the issur of me’ila is a subset of gezel, but did not provide proof. It seems off the cuff from looking at some of the halachos of me’ila that it is an issur hana’ah, not a mamonos related halacha, so this is quite a chiddush, and I am not involved enough in the sugyos of me’ila to evaluate the ramifications, but this is R’ Chaim’s approach. (Parenthetically, I'm not going to rank R” Chaim’s shtickle torahs, but this particular one in hil me’ila is really a work of art and worth seeing inside.) Two amazing proofs he offers:

1) The gemara (Bava Metziya 88b) darshens from the word “re’acha” that although a worker usually has the right to eat from the field of a ba’al habayis he is working for, a worker has no right to eat from hekdesh. Tosfos asks why we need a derasha for this din – the food of hekdesh is assur to the worker m’din me’ila! Tosfos answers that we might have assumed that just like the right to eat overcomes the issur of gezel on the property of the owner, so too, the issur of me’ila is overcome. R’ Chaim asks: the gemara never entertains the possibility that a nazir worker can eat grapes because the heter to eat overrides the issur nezirus – why should the heter to eat override the issur me’ila? R’ Chaim answers that the issur nezirus is unrelated to the workers right to eat; the issur of me’ila is intrinsically related to that right. Me’ila by definition is an act of theft; if the worker has a right to eat the produce of hekdesh there by definition is no issur me’ila.

2) According to Shamai, “yesh shliach l’dvar aveira” (Kiddushin 43) with the exception of eating chalavim or an issur arayos because it is inconceivable that “zeh ne’hene v’zeh mischayeiv”, that one person should have the benefits of sin and another person should receive punishment. Tosfos challenges: we find in hilchos me’ila that a meshaleyach is chayav if his shliach has hana’ah from hekdesh?! R’ Chaim answers that while the ma’aseh aveira is one of hana’ah, the actual issur which occurs is rooted in the violation of hekdesh’s ownership, an issur gezel.

Monday, August 13, 2007

matzah made from chadash

Rashi in last week’s parsha (16:6) writes that there is no contradiction between the Torah’s command to eat matzah for six days and the command to eat matzah for seven days – matzah of chadash is permitted only for six of the seven days of pesach. Is Rashi just telling us a practical metziyus or is he telling us a din? Maharal notes that Tosfos (Kiddushin 39a) assumes matzah made of chadash cannot be used to fulfill mitzvas matzah. Tosfos asks: why don't we say that the aseh of matzah is doche the lav of chadash? Tosfos answers: 1) the aseh of matzah was given before Sinai and is different than other mitzvot aseh; 2) we do say aseh doche lo ta’aseh, but there is a gezeirah derabbanan not to eat this type of matzah lest one eat more than a k’zayis, which exceeds the shiur of the mitzvah. According to Rashi the entire question is moot - our Rashi tells us that there is a din in mitzvas matzah that precludes it being made from chadash.

Friday, August 10, 2007

kodshei bedek habayis vs. kodshei mizbeyach

I just want to expand a bit on a point raised in the comments to yesterday’s post regarding the distinction between kodshei mizbeyach and kodshei bedesk habayis. The former type of hekdesh is a function of an animal being designated for the mitzvah purpose of being a korban; the latter type of hekdesh is a result of hekdesh becoming the owner of an object. This distinction is clear from the Rambam’s ruling (Archin 6:8) that kodshei mizbeyach can be pledged to bedesk habayis, and the animal would have to be redeemed, the money donated, and then the animal offered as a korban to fulfill its original purpose; however, kodshei bedek habayis cannot be pledged for use as kodshei mizbeyach because “ain adam makdish davar she’aino shelo”. In the case of kodshei mizbeyach, the original owner retains rights to the animal, and therefore can pledge it elsewhere - hekdesh is just a designation of purpose. In the case of kodshei bedesk habayis, the ownership of the animal has changed.

Similarly, a thief would not be chayav the extra penalty for mechira if he was makdish an animal because hekdesh mizbeyach does not remove the original owner’s kinyan (Bava Kama 76).

R’ Chaim uses this idea to explain the Rambam (Meilah 2:5) that there is no issur me’ila on ashes of parah adumah, even though the parah is kodsehi bedek habayis, because the parah is also called “chatas”. The Kesef Mishne asks: what is the meaning of this “even though…” – kodshei bedek habayis are also subject to the issur mei’ila?

R’ Chaim answers that when the Rambam writes that the parah is called “chatas” he is not explaining why there IS an issur meilah - the issur meilah obviously also apply to bedek habayis. The Rambam is explaining why there is NO issur meila once the parah becomes ashes. Kodshei mizbeyach are endowed with the status of hekdesh by virtue of their being designated for the mitzvah of korban; once the mitzvah purpose has been fulfilled, the status of hekdesh is lifted. Kodshei bedek habayis are endowed with hekdesh status by virtue of being owned by hekdesh; fulfillment of a function with bedek habayis does not change its status. Even though a parah is kodshei bedek habayis, and therefore even though its function has been fulfilled by its being burnt it should remain hekdesh, the Torah calls the parah “chatas” and the rules of me’ila work like kodshei mizbeyach – once burnt, the the status of hekdesh is lifted.

Anon1 raised the issue of why kinyanei kesef are needed for pidyon of kodshei mizbeyach when fundamentally no ownership change has occurred (Anon1, correct me if I misunderstood your point). Let me answer that question with another question – the whole issur of me’ila is a form of theft from hekdesh (I know I have to defend that assertion – see R’ Chaim in Hil Meila, bl”n I’ll come back to it). How can you steal what hekdesh does not own?

I think the simple answer is that hekdesh does have kinyanim in kodshei mizbeyach, but that does not mean the ba’alim relinquish their ownership. I don’t know if it is a good analogy, but a shomer has kinyanim in an object even while the original owner is still the true ba’alim. Would a ganav be chayav for mechira if he gave a stolen ox to a shomer to watch?

recreating a shtetl in upstate NY

A local newspaper carried an ad which amazed me. On the left side of the ad was the pasuk “nos’im anachnu el hamakom asher amar Hashem oso eaten lachem…”, but this was not an aliya campaign – it was an announcement by a certain chassidic group celebrating the “establishment of a new XXXX shtetl” in Ellenville, NY.
Yes, the good old shtetl, where you could work sunrise to sunset as a tailor, woodchopper, or water carrier, where you never saw a secular book, where indoor plumbing did not exist, and where once a year you could count on the goyim to put on a nice pogrom (maybe they can hire some goyishe hicks upstate to ransack the town once in awhile just to get the right feel?). And forget Eretz Yisrael – this is where Hashem wants us to be.
Gosh, people, didn’t you ever see Fiddler on the Roof? Trying to turn the clock back 150 years is probably not a good strategy to solve the “youth at risk” problem, much less a good way to deal with reality.

Thursday, August 09, 2007

Reform kids who "frum out" and kids at risk

The Jewish Week reports on the problems facing one Reform camp where some campers and counselors are rejecting the “creative experimentation” form of worship in favor of more traditional tefillah. Nebach. Now, what would happen if we got these kids who are thirsting for religion together with some of those kids from traditional yeshivos who are spending the summer hanging out in the pool halls and whatnot (see this article from yeshivaworld)? Maybe they could have a hashpa’ah? (No, I am not being facetious.)

pidyon hekdesh = kinyan kesef

I never thought about it in that way before, but the halacha of pidyon from hekdesh is not simply a din in issur v’heter, to remove the status of kedusha from an object by paying hekdesh, but is a dinei mamonos halacha of kinyanei kesef. The gemara (Kiddushin 29a) writes that if a person did a kinyan meshicha from hekdesh but did not yet pay for the object, the person must pay the increased price if the object appreicates in the interim. Even though meshicha removed the object from the reshus of hekdesh, the kinyan is not complete until payment is made (this proof is brought by R’ Moshe Soloveitchik).

Tuesday, August 07, 2007

Queen's grandson barred from marrying a Catholic - calling Noah Feldman!

The UK Timesonline reports that the Queen’s grandson, Peter Phillips, 10th in line to the throne, based on the 1701 Act of Settlement could be disqualified from the line of succession if he marries his Roman Catholic fiancé . Noah Feldman, this calls for an editorial!

l'ma'an yirbu ymeichem al ha'adamah - are there not old people in Bavel?

The Torah promises “l’ma’an yirbu y’meichem al ha’adamah”, a reward of long life in the Land of Israel for those who keep mitzvos. The gemara (Brachos 8) records that R’ Yochanan wondered how there could be old people living in Bavel – the promise of “long life” is given only “In the Land”, not in exile. When he heard that these old people rise early to come to shule and end their day by going to shule, he understood that this was the source of their special reward.

The Maharasha explains the gemara’s conclusion based on a gemara in Megillah which teaches that the batei kneysiyot and batei midrashot of Bavel will in the future be removed from exile and relocated to Eretz Yisrael. It is as if these locations are pieces of Eretz Yisrael in exile – embassies of the Land. Therefore, the old people who spend time in shule receive the same reward which is promised to those in Eretz Yisrael proper.

However, it remains difficult to understand what R’ Yochanan was initially so awe struck by. Was he not aware of old people living outside Eretz Yisrael? Did he not think there were non-Jewish old people in the world? The Kli Chemdah (P’ Bechukosai) explains that the term “zakein” is explained by the gemara (Kiddushin 32b) to mean “zeh shekanah chochma”. Age without wisdom is not a value; the promise of a long life must be understood to mean a promise of a life of knowledge and learning as well. R’ Yochanan at first thought that this combination of years and wisdom was possible to achieve only in the spiritual environment of Eretz Yisrael. When he heard that the old of Bavel also prioritized ruchniyus in their lives, he acknowledged that this too was a kiyum of the bracha of “zikna” the Torah promises.

Monday, August 06, 2007

dealing with non-observant family - good book by Azriela Jaffe

I recently finished reading “What Do You Mean, You Can’t Eat in My Home?: A Guide to How Newly Obervant Jews and Their Less Observant Relatives Can Still Get Along” by Azriela Jaffe and highly recommend it. The author was raised in a Reform family, but over a period of years after her marriage, motivated by the desire to raise her children as observant Jews and motivated by her husband’s choice to become more observant, she became observant. Jaffe offers a very straightforward approach to explaining Torah and mitzvos without apologetics – in each chapter she offers questions that an observant person inevitably is called upon to answer by those less observant, and I would add, by non-Jews curious about what we do. I was hooked by page 7 where she boils down kashrus to the simple fact that “G-d said so” – for an observant Jew this is the point at which the buck stops, all the rest is commentary. I was also moved by the author’s reflections about her preconceptions and life changes and choices, but the real focus of the book is her advice and reflections on her relationship with her parents and family now that she is observant and they are not. Instead of high-sounding platitudes, Jaffe offers concrete suggestions on how to make things work if both parties want to be accommodating. For example, if your parents do not keep a kosher kitchen and want you to visit, she reminds the reader that koshering a self-cleaning oven is fairly easy, and if you bring pots or disposable pans, or even buy a set to keep at that parent’s home, you can make your visit that much smoother. Some of her answers sound a bit too pat, but she does not hide that these problems are difficult to deal with and have taken her years of work to address in her life.

While the answers are well thought-out and the advice is practical, the book I think dwells a bit too much on symptoms without striking at root causes. As I blogged once before, even within the Orthodox community there is a great difference between those who aspire to the vacation in Aruba, albeit with a glatt kosher meal, and those for whom a Torah lifestyle means eschewing the values of materialism and popular culture, even if the kosher meal is included. For those who fall into the latter camp, and it strikes me that Jaffe does, the issue is not just kashering the kitchen, but kashering the values, or at least finding a way to share some mutual interests even though other values will remain in conflict. If your house is like mine, when you sit around your Shabbos table, the “family time” of your week, you discuss divrei torah, thoughts on the parsha, events in the Jewish world – it is much more difficult to find common ground when these items that matter most are removed from the conversation. Someone recently commented on my wife’s blog regarding their attendance at a Reform wedding: “We went, in the name of not offending anyone, and of maintaining family peace. After carefully enduring the many halachic and etiquette trials of that evening, I understood why it might have been more conducive to family peace if we hadn’t attended.” I think that comment sums up the emotional clash that exists for many people and I would have liked to see more about it in the book.

I am aware of a number of books written by ba’alei tshuvah telling their story (though I think Jaffe’s take is unique). I have found only one title on Amazon by non-observant parents describing their child’s turn to observance and how they coped. Is anyone aware of other books written from this perspective?

safeik shtar mukdam (II)

I did not get a chance last week to finish the topic of safeik shtar mukdam. Tosfos proved from Sanhedrin 32 that if eidim are challenged that they were not around on the date in a shtar we assume the shtar was post-dated rather than assume they are eidim zomimin. Based on this premis, Tosfos asks why we need a takanah to establish a rosh hashana to count years of a king’s reign. The worst case scenario (according to Rashi) is we won’t know whether the shtar is pre-dated and pasul or post-dated and kosher - just like we don’t assume eidim are zomimim if the shtar might have been post-dated, so too, in Rashi’s case, why assume the shtar is pasul if it might have been post-dated?

The simple answer to Tosfos question is that while it is true that we can validate the shtar even in a case of doubt, it is far better to avoid such a situation. Therefore , Chazal made the takanah of a set date to count years by.

The Brisker Rav offers a deeper explanation. Recall that according to Rashi, a shtar mukdam is pasul only viz. collecting from lekuchos; the creditor is still able to collect from other assets of the debtor. Tosfos disagrees and says the testimony of the shtar is completely invalid. Perhaps Rashi can be explained l’shitaso. In the sugya in Sanhedrin, the issue is whether to reject eidim completely and assume they were zomimim or to assume a shtar was post-dated – given the choice of completely invalidating testimony or not, we grant the shtar a presumptive chezkas kashrus. However, in the case in Rosh haShana, the eidus of the shtar that a loan took place is valid whether we assume the shtar is mukdam or not. The only issue is whether the creditor has an additional right to collect from lekuchos. Since this added right is not part of the crux of the testimony inherent in the shtar which simply established that a loan took place, the question of whether the shtar is mukdam or me’uchar should be treated as a safeik mamom and the creditor would lose, if not for the takanah.

Friday, August 03, 2007

"torah' chuppah, ma'asim tovim" - why good deeds come last?

Commenting on the last post, my wife asked:

"Now, why do maa'sim tovim come last in the wishe[s]. I know the girsa is standardized (and that some omit Torah for the girls who are rather encouraged to marry the Torah) but why would good deeds only follow chuppah?"

As usual, good question, but this time I have a good answer : ) which someone told me b'shem R' Mordechai Breur (if I recall correctly). Why do we invoke these items specifically in our bracha? The gemara (Kiddushin 29) lists the mitzvos which are incumbent upon a father to do for his child, and on the list (in order) are the mitzvos of talmud torah, marrying off his child, and teaching a child a profession. The bracha is a blessing for the parent to be zocheh to properly fulfill these obligations. Ma'asim tovim, which comes last, is simply another way of saying learning an honest trade, and does not being used here in the sense of manners or ethics. Proof of the pudding is that unlike what most people say at a bris, “k’shem shenichnas..ken tikanes”, which expresses this as a bracha for the baby, the Rambam’s (Milah 3:2) grammatical formulation is “k’shem shenichnasta…”, a bracha for the parent. And as most parents will sympathetically acknowledge, we can use all the brachos we can get when it comes to raising kids properly.

mazel tov Dixie Yid!

Dixie Yid had a baby girl - mazel tov! Tizkeh l'gadlah l'torah l'chuppah ul'ma'asim tovim!

judging the morals of G-d's law - R' Lamm's response to Feldman (II)

Comments yesterday as well as a private e-mail focused on a passage of R’ Lamm’s article that gave me pause as I read it, but upon further reflection I did not find it as objectionable as others apparently have. Here is the passage (italics added by me):

Surely you [Feldman], as a distinguished academic lawyer, must have come across instances in which a precedent that was once valid has, in the course of time, proved morally objectionable, as a result of which it was amended, so that the law remains “on the books” as a juridical foundation, while it becomes effectively inoperative through legal analysis and moral argument. Why, then, can you not be as generous to Jewish law, and appreciate that certain biblical laws are unenforceable in practical terms, because all legal systems — including Jewish law — do not simply dump their axiomatic bases but develop them. Why not admire scholars of Jewish law who use various legal technicalities to preserve the text of the original law in its essence, and yet make sure that appropriate changes would be made in accordance with new moral sensitivities?
What does R’ Lamm mean by suggesting that our approach to Torah law be guided by “moral argument” – who are we to judge G-d’s law, and who are we to dismiss that law by using technical loopholes to circumvent it if it meets our moral disapproval?

I believe R' Lamm's approach is borrowed from a theme R' Wurtzberger z"l developed in his book on Jewish ethics (who in turn I think presents it as being R' Ahron Soloveitchik's chiddush) where he sets down how the Rambam views "m'shum eivah" as a philosophical imperitive to love all creatures, not just a pragmatic end. You may not be comfortable with R' Lamm's formulation, but examples of the approach abound, from Talmudic times - "Rav mangid a'man d'mekadesh b'biya" is a moral expression of dissatisfaction with a legally sanctioned heter - to our own times, where institutions like pre-nup agreements seek to restore equity where the letter of the law clearly favors the husband. When R’ Chaim Brisker allowed eating on Yom Kippur for the sick and declared that he is not lenient with respect to Yom Kippur, he is strict regarding the law of preserving life, that is as much a moral argument as a halachic statement. The “moral argument” which motivates these implementations is not rooted in a selfish judgmental approach to G-d’s law, but is rooted in an appreciation of the moral spirit and value system of the law itself. The law values Shabbos, but the law also values human life; the law values Yom Kippur, but the law respects the needs of the sick – the means to balance these axioms needs to be found in the technical details of the law itself. What might appear as a technical loophole is merely the application of the letter of the law to satisfy the spirit of the law itself. We have no right to judge G-d's law, but that we have a right to use our judgment to insure we meet its demands in spirit and in letter.

Thursday, August 02, 2007

R' Norman Lamm responds to Feldman

OK, so I’m probably one of the only people unimpressed with Noah Feldman’s self-serving navel gazing and castigation of Modern Orthodoxy for taking umbrage at his intermarriage and rejection of faith (“I reject your value system and way of life but please don’t be offended or reject me” sums up in a sentence what Feldman took 5 pages to say), but the response of Rabbi Dr. Norman Lamm in this article in the Forward is worth taking a look at.

safeik shtar mukdam - why is there a need for a "rosh hashana" for kings?

My son started learning Rosh haShana which forces me to try to keep pace with him. The first Mishna tells us that Rosh Chodesh Nisan was set as the Rosh haShana for kings. Documents used to be dated based on “year X of the king’s reign”; instead of using the king’s inauguration date, Chazal tell us to use Rosh Chodesh Nisan as the date to being counting a new year for all kings.

Why was there need for such a takanah? Some background: The gemara tells us that a post-dated shtar is acceptable, but a shtar dated before a loan occurred is pasul. A shtar creates a lien against all the debtors property; the creditor can even take property from a third-party who purchased it from the debtor after the loan occurred. A pre-dated shtar would give the creditor a lien against far more property than he is entitled too, and is therefore pasul. Tosfos holds such a shtar is completely invalid; Rashi holds it cannot be used to collect a lien, but it can be used to collect from free cash the debtor may have on hand. A loan post dated releases the debtor from part of the lien, so it is not a problem.

Rashi gives the following example to explain the need for the Mishna’s takanah: Reuvain has a shtar that says he loaned money to Shimon in Kislev of year 2 of the King’s reign. The witnesses testify that in reality the loan in question took place in Tamuz of year 2 of the King’s reign. Is the shtar a valid shtar or not? If the King’s reign were counted from his inauguration date, then if the King had been inaugurated in Tishrei (for example), then the shtar in pre-dated and pasul; if the King had been inaugurated in Adar (for example) the shtar is post-dated and OK. To remove the need to keep track of this variable and avoid confusion, Chazal said to use Rosh Chodesh Nisan as a uniform date.

Tosfos asks: in Rashi’s scenario we at worst have a doubt as to the validity of the shtar. Why would we reject such a shtar just because of a doubt? The gemara in Sanhedrin (32) writes that one cannot prove that witnesses are eidim zomimim because they signed a document dated for a time they could not possibly have seen a loan on (e.g. even if the shtar says the loan took place on Yom Kippur!) because we assume such a document is simply postdated – given the choice of rejecting the witnesses or assuming a shtar is postdated, we give them the benefit of the doubt. In Rashi’s scenario as well, given the choice of assuming the shtar is invalid or assuming it is postdated, why not simply give the creditor the benefit of the doubt? More to come…

Wednesday, August 01, 2007

can doing a mitzvah lead to chilul Hashem? - the Chinuch on tefillin

The Sefer haChinuch on last week’s parsha raises an interesting issue in his discussion of the mitzvah of tefillin. He cites a view that the idea of “guf naki” means that a person who does aveiros should not don tefillin as that would lead to a greater chilul Hashem than simply not doing the mitzvah. For example, the Yerushalmi relates that a person gave money for safekeeping to someone who was wearing tefillin on the assumption that such a person could be trusted; unfortunately, the money was stolen by the person who was entrusted with it. Such behavior disgraces the mitzvah of tefillin, and it would be better for the criminal to simply not perform the mitzvah. The Sefer haChinuch disagrees with this view, and argues that every good deed has merit even if the person performing it might in other ways be a sinner. Who knows if this one mitzvah of tefillin might not one day trigger the person to reform his behavior in other areas?

What came to mind in reading this piece is the image of Chabad shluchim standing near the subway grabbing anyone who admits to being Jewish and trying to get them to put on tefillin. hough those grabbed may be otherwise very distant from religious observance of any type, the good deed of tefillin, as the Chinuch writes, is still theirs to observe given the opportunity. On a more cynical note, the example of the Yerushalmi is also often all too real as we read newspaper stories of Jews superficially “religious” who are led off to prison for assorted crimes. Again, while we should condemn their wrong actions, should we necessarily discourage the good deeds that these people may do? Somehow the latter case seems more objectionable than the former…

Tu b'Av - chag ha'ilanot?

Is it too late for a Tu b’Av post? The first Mishna in Rosh haShana tells us that 1 Tishrei is the new year for netiyos, plantings. Assuming chodesh echad bashanah chashuv shanah, a plant must be around for one month in the year for it to count as a year, the plant must exist from Elul. On top of that one month, it takes (according to some Tanaim) 2 weeks for a plant to root. The Bartenura therefore writes that to count as a year of growth before Tishrei, planting must occur no later than Tu B’Av.

Achronim ask: the Bartenura’s cutoff point seems to be off by a day, as miktzas hayom k’kulo would allow one to plant on 16 Av and still make it!

The Noda b”Yehudah (II: O.C. 84) answers: miktzas hayom k’kulo only applies when counting days, i.e. it is a din in the shiur of what constitutes a "yom". When it comes to planting, the shiur is not 14 days, but rather is two weeks, which is not the same thing - you can’t use miktzas hayom to complete the shiur of required weeks.