Avodah Mailing List

Volume 01 : Number 050

Wednesday, September 16 1998

• Re: Rambam on Sanhedrin's overturning decisions
• re: "Min"
• Minhag Chabad and Selichos
• Re: Minhag Chabad and Selichos
• Re: Women reciting sheva berakhot
• Disagreeing with earlier authorities
• Panim Hadashot
• 2 thoughts on tephillah
• sevara and derasha
• Re: Avodah V1 #49
• FW: More on sheva berakhot by women
• cherem
• Rishonim/Aharonim
• disputing previous generations
• Re: Avodah V1 #48 Writing the Mishna

Once more, I call to all Avodah members to ignore posts submitted under
pseudonyms. (As I am not listowner, my request carries no authority, other
than logical considerations.)

For one, I refuse to read the post as a matter of principle.

YGB

On Tue, 15 Sep 1998, Telly O'Logical wrote:

> Daniel Eidelsohn wrote:
> 
> >David Glasner wrote:
> >> the Rambam so codifies in Mamrim 2:1 that the Sanhedrin of a later
> >> generation may overturn the decision of an earlier Sanhedrin based on
> >> an alterantive derivation of the Biblical text.  The requirement that
> the later
> >> Sanhedrin be greater in wisdom and numbers is mentioned only in
> >> connection with changing a takanah or gezeira of an earlier
> Sanhedrin.
> 
> >This view of the Rambam is not mentioned in chazal 
> >and I believe he is a das yachid in making this >distinction. 
> 
> A chapter of "Dynamics of Dispute" by Rabbi Tzvi Lampel
> is devoted to this Rambam and possible sources for it.
> 
> One source is brought from the Shulchan Aruch
> Ha-atid: a baraita in which an Amora states that one
> should write to himself that he "consumed amount X
> of chelev"(b'shogeg) rather than that he is obligated
> to bring a korban - the reason being that a future
> Sanhedrin might revise the shiur.  A disagreeing Amora
> states that the shiurim are halacha l'moshe mi-sinai.
> 
> The apparent implication is that decisions resulting from analysis or
> drashot are subject to review by
> a subsequent Sanhedrin.
>  
> See R. Lampel's excellent work for the precise source
> and analysis.
> 
> - Telly
> 
> 
> 
> 
> 
> _________________________________________________________
> DO YOU YAHOO!?
> Get your free @yahoo.com address at http://mail.yahoo.com
> 
> 

Yosef Gavriel Bechhofer
Cong. Bais Tefila, 3555 W. Peterson Ave., Chicago, IL, 60659
ygb@aishdas.org, http://www.aishdas.org/baistefila

I assume Reb Akiva has no objection to a public response:

YD 155:9

I am pleasantly surprised by the abundance of replies!

YGB


> Very interesting. I'd like to see that Darchei Teshuva. Would you happen
> to know where it is located? Thanks.
> 
> Akiva Miller

Yosef Gavriel Bechhofer
Cong. Bais Tefila, 3555 W. Peterson Ave., Chicago, IL, 60659
ygb@aishdas.org, http://www.aishdas.org/baistefila

A few years back someone asked this question on mail-Jewish -- the answer
was the following:  in Tanya, there are two expressions of fear of Hashem
and two corresponding levels of teshuvah -- one is "lower" teshuvah out of
fear of punishment;  the second is "higher" teshuvah -- returning to Hashem
out of love of Hashem.  The period prior to Rosh Hashannah is characterized
by "lower" teshuvah;  the period after Rosh Hashannah is characterized by
"higher" teshuvah.  As Selichos pertains primarily to "lower" teshuvah Selichos
is only said prior to Rosh Hashannah.  Selichos is said on Tzom Gedaliah
b/c of the Taanis and is said in the davenning as part of Tachanun versus
beforehand.

I have davened in a Chabad Shul for eight years, and, based on a psak of
the Rebbe reprinted in the Selichos books, Selichos on Tzom Gedalyahu is
said before davening.

YGB

On Tue, 15 Sep 1998, Alan Davidson wrote:

> is only said prior to Rosh Hashannah.  Selichos is said on Tzom Gedaliah
> b/c of the Taanis and is said in the davenning as part of Tachanun versus
> beforehand.
> 

Yosef Gavriel Bechhofer
Cong. Bais Tefila, 3555 W. Peterson Ave., Chicago, IL, 60659
ygb@aishdas.org, http://www.aishdas.org/baistefila

On Tue, 15 Sep 1998, Clark, Eli wrote:

> I just came across a teshuvah in the third volume of ShuT Benei Banim on
> the subject.  R. Henkin assumes that a woman cannot recite sheva
> berakhot in the context of a minyan.  However, where no minyan is
> present, and there are three (or more) women and fewer than three men,
> he rules that a woman can recite asher bara.  (Asher bara does not
> require a minyan.)  The ruling is premised on an earlier teshuvah of his
> that, when there are fewer than three men present, the men may answer to
> the zimmun of the women.

This fits (although I do not agree with the psak) in sevara, with what I
wrote previously: Sheva Berachos follow the gedarim of Birkas HaMazon.
Thus, the other six berachos, besides Asher Bara, follow the parameters of
zimmun of Elokeinu - as both require ten men.

> Of course sheva berakhot cannot be recited at will.  Of course panim
> hadashot are required.  That is not the question.  The question is, in a
> situation where the requirements for reciting the berakhot are met
> (huppah/minyan/panim hadashot, etc.), is there some reason, other than
> minhag (and a limit on kibbudim!), that each berakha is recited only
> once?
>

Explain to me why this is not a beracha she'eina tzericha!
 
> >They actually are a chiyuv on the chosson and kalla, who are supposed to
> >be yotzei the takkana of birchos nisuin with them. Once they were yotzei,
> >additional berachos are she'einan tzerichos/l'vatala. See Pischei Teshuva
> >EH 62:7.
> 
> Forgive me for not accepting this view as the only possible one.  In
> particular, I do not understand how this explanation relates to the
> repetition of the berakhot on successive nights, but only in the
> presence of panim hadashot.  If the hatan and kallah had a hiyyuv in the
> berakhah, they would presumbaly have fulfilled it once and need not do

New people for whom there is ribbui simcha become mandated to bless the
chosson and kalla. They do not necessarily have to be the ones to do it
themselves, but they are the cause for the berachos and essential thereto.

In this repect, there is a basic distinction between the Sheva Berachos
qua Birkos Nisu'in and the Sheva Berachos qua Sheva Berachos as a snif to
Bentsching: The former is a chiyyuv on the Chosson and Kalla, the latter,
a chiyuv on the Panim Chadashos and the tzibbur who participate with the
P.C. in the new simcha.

Were the rest of Sheva Berachos a chiyyuv on Chosson v'Kalla, then they
would have a "kiyum" in having as many Sheva Berachos as possible, a
premise I do not recall seeing.

> is not subject to analysis.  I will simply note that the Arukh
> ha-Shulhan (EH 62) has an alternate understanding.  I do not know who
> else has addressed the question.

What does he say?

YGB

Yosef Gavriel Bechhofer
Cong. Bais Tefila, 3555 W. Peterson Ave., Chicago, IL, 60659
ygb@aishdas.org, http://www.aishdas.org/baistefila

The Rosh on Sanhedrinn fourth perek (os vav) has a fascinating
discussion on the question of whether later authorities can disagree
with earlier ones.  He quotes a number of Rishonim about authority after
the Talmud.  His own opinion is that one is permitted to argue with
earlier views, even those of the Gaonim, and follow his own view as long
as he can convince his generation of the correctness of his
understanding.  One of his proofs is that with respect to Amoraim we say
halacha k'basrai (the halacha follows the later amoraim) which clearly
shows that this rule was not applied exclusively to that one period. 
None of the positions of the Rishonim quoted introduce yeridas hadoros
as a consideration.
Sincerely,
Yosef Blau

I'm at work so what I write is from memory. If my memory does not fail
me, The Hatam Sofer in his Hiddushim to ketubot 7 indicates that an
Ishah Hashuvah can be Panim Hadashot. There is also extensive discussion
of this issue in Otzar ha-Poskim.

1- I noticed yesterday that by changing the nekudos, one can read "Kaddish
Shaleim" as "Kaddish Shalam". Requests for peace, which is shalam in Aramaic,
is the jist of what's added to Chatzi Kaddish to make Kaddish Shaleim. ("Yehei
sh'lamah rabba", "Oseh shalom")

Perhaps the kaddish got its name not in contrast to Chatzi Kaddish, but
thematically, in similar style to the name of "Kaddish D'Rabbanan".

Probably not. But it's a cute thought (IMHO) anyway.

2- I noticed during s'lichos the quote "V'Atah tzaddik al kol haba aleinu, ki
emes asisa va'anachnu harish'anu". Note it uses the passive "ba aleinu", not
addressing that He is the cause. And why "EMES asisa", whu not "din", "tzedek",
or some other word that refers to judgement or justice?

I think the line is written from the perspective that the cheit carries its
own onesh causally. Therefore, "You are just in all that comes to us, because
you are keeping with the truth -- we made the evil." The person himself brings
on himself the evil, G-d "merely" allows that reality, that emes, to be.

-mi

-- 
Micha Berger (973) 916-0287    Help free Yehuda Katz, held by Syria 5923 days!
micha@aishdas.org                         (11-Jun-82 - 16-Sep-98)
For a mitzvah is a lamp, and the Torah its light.
http://www.aishdas.org -- Orthodox Judaism: Torah, Avodah, Chessed

>>>The gemara utilizes a pasuk even with a sevara whenever it says that The
Torah troubles itself to write something that could be learned from a kal
vechomer. <<<

An example being....

>>>Now I'll turn the tables, Besides the gemara in Baba Kamma by hamotze
mchavero alav ha raeh where we say lama li kra sevara hu--is there any
other place in all of shas that we say this <<<

How many times must it appear before you accept it?!

>>>Pesachim daf 23b. <<<

Since I'm not learning daf yomi please spell out what you mean.  As far as
I see that sugya proves my position.  R' Meir (21b) uses the word "oh" (oh
machor) to teach that in giving away/selling neveilah to a ger takes
precedence over selling to a goy.  R' Yehudah argues that the din of
precedence is obvious misevara; the work "oh" is miyutar to teach us that
neveilah must be sold to the goy and given to the ger.  If you are correct,
then despite knowing the din misevara R' Yehudah should still prefer to
darshen it from the pasuk and thereby agree with R' Meir!

-CB

I am writing to comment on a methodological issue in the exchange between
Rabbis Bechhoffer and Clark about women as panim chadashot.  A careful
review of the sugyot and the rishonim will confirm the truth of what Rabbi
Clark states to be the view of the vast majority of the rishonim.  Women
are eligible to be panim chadashot according to most rishonim, as only one
view of the rishonim exludes women and the vast majority of them advance
arguements that would accept women as panim chadashot.  Indeed, the
languge in SA EH 62:8 for who can be panim chadashot (benai adam) seems to
side with the more inclusive view.  It seems to me that there is nothing
wrong with asserting that the vast majority of rishonim adhere to this
view, and only a minority disagree.  Rabbi Bechhoffers response -- that he
recalls learning this suyga many years ago, and encountering a different
sevara as possible, is nice, but should not defeat the force of Rabbi
Clark's arguement. 

In the face of the view of the vast majority of rishonim, one must either
show that their view is demonstrably wrong (with ra'ayot berurot) or one
must show some other compelling reason to be leinint in the face of rov
rishonim which is consistent with the shulchan Aruch.  One cannot merely
advance another theory equally consistent with the talmudic data, and say
"I think this view is correct!"  That is inconsistent with normal
methodology in psak.  So too, the citation of a modern sefer on hilchot sheva
berachot does not seem particularly persuasive, as it is from the
rishonim and the classical achronim that we live (or to rephase this, the 
kashya is on the modern restatement of the halacha that it is
inconsistent with rov rishonim, and not on rov rishonim who are
inconsistent with the modern sefer!). 

Let me add that sheva berachot are obligatory when they are permitted,
and thus to pass up on sheva berachot when most (vast majority, actually)
rule them to be mandated would seem to be in error.

Michael J. Broyde
Emory University School of Law
Atlanta, GA 30322
Voice: 404 727-7546; Fax 404 727-3374

A list member contacted Joel Wolowelsky who authored an article on the
subject.  His comments are reproduced below.

Joel B. Wolowelsky wrote:

> I have indeed discussed this, first in an article in Amudim, then
> one in Tehumin and then one in Modern Judaism.  All of the material in
> these are included in a chapter of my book "Women, Jewish Law and
> Modernity" (Ktav, 1997).  I will not repeat the arguments there, but note
> that the conclusion is that they can say sheva berakhot after the meal if
> there is a minyan of men and panim hadashot.  I have there addressed all
> of the few negative opinions that were in print.

> The first person to say that it was OK for 3 women + 2 men to say asher
> bara was R> David Auerbach, author of Halikhot Bita in a personal letter
> to me,.  I mention it in Tehumin and I think R. Henkin mentions it too.
> (I had sent him a copy after reading a draft of his teshuva.)
>
> > Clark, Eli wrote:
>> > >
> > > Also to reopen a related issue, I had asked R. YGB about berakhah
> > > le-vatalah:
> > > >> But what if two different people recite the same
> > > >> berakha under the huppah?  The question turns on the precise status
of
> > > >> the sheva berakhot recited under the huppah.  If they are birkot
shevah,
> > > >> is it clear that each may be recited only once?  If so, why?
>
> There is a different logic for berakhot under the huppa and those at the
> meal.  The former, I believe, is the obligation of the hattan.  So once
> someone said it for him, it can't be said again.  This has nothing to do
> with panim hadashot.
>
> The hiyyuv for the berakhot after the meal is on the people who ate the
> meal, who are required to "Be mesameiach" the hattan vekalla by way of
> the berakhot.  People who are hayyav in the zimmun become hayyav in the
> berakhot.  Thus, says R. Moshe Feinstein, one cannot leave a wedding meal
> by benching early and missing the sheva berakhot (unless he/she exempted
> him/ herself from the zimmun beforehand).
>
> If one of the participants who was hayav stepped out for a moment and
> missed one of the berakhot, I wonder if he could recite it.  I could see
> a case if he went out with one of the panim hadashot, but am not sure how
> it would come out.
>

A question came up at work regarding the applicability of Rabbeinu Gershom's
cherem on opening mail to e-mail.

Considering that one cannot have any expectation of privacy when using an
e-mail account provided by an employer (at least in the US), would the
cherem not apply?

As a related question, is there any halachic problem in opening up someone
else's mail (regular mail) outside of the cherem?

Avi Pechman

Mechy Frankel writes:

<<My friend and one-row-to-the-rear shul neighbor, the Dor Shivi'ie,
writing
about his favorite acharon, the Dor Rivi'ie, mentioned inter alia that: 

<Whether any such agreement not to argue on the opinion of a Rishon
ever
occurred is by no means clear, if for no other reason than there is no
clear
line of demarcation between Rishonim and Aharonim>.

While I hesitate to take issue with Dr. David Glasner's legendary (at least
between rows 10 and 15 at Southeast Hebrew Congregation) erudition,
and I also
hesitate to open old mail-jewish wounds, I would like to at least note my
strong conviction that the rishonim-acharonim period is indeed strongly
marked
at least for the ashqenazim - by the black death (let's round that to
1350).>>

I suppose that receiving a complement one one's erudition from Dr.
Michael Frankel is like (well, sort of like) receiving a complement from Dr.
Frankel's commander-in-chief on one's lexical virtuosity.  So, however
undeserving, I do (really!) appreciate Mechy's approbation.  I had not
intended to reopen any old wounds, and tried to make my point in a way
that would not run afoul of Mechy's adamant position on this issue. 
While there may be some temporal line of demarcation between Rishonim
and Aharonim, and even here there is some room for ambiguity, as even
Mechy seems to admit concerning the Sephardic scholars, the
classification is an ex post classification, not an analytical one.  A Tana,
on the other hand, is someone whose opinion is recorded in the Mishnah
or some other contemporaneous halachic material.  Whether one is a
Rishon depends on a subjective judgment rendered decades, if not
centuries, later.  

Query.  When was the term Rishon as a descriptive term first applied to
the Rabbinic authorities of a certain era and by whom?

David Glasner
dglasner@ftc.gov

Daniel Eidenshohn writes:
<<I retract the term das yachid - but still can't think of a better description.
R.
Lampel Chapter 6 page 103 states, "...The Rambam states a surprising
principle
regarding this second function: Law details that had been newly
generated through
a drash could be overruled by a later Great Sanhedrin."  [page 107]
Armed with the
Rambam's principle one may anticipate answering how many disputes in
the Talmud
arose:namely by explaining them as situations wherein which one
Sanhedrin decided
to challenge the drash of a previous one or wherein which the members
of a
Sanhedrin were disputing whether to do so. However, we are
confronted with a
disappointment. _THERE IS NO PASSAGE IN THE TALMUD WHICH
CLEARLY INDICATES SUCH A
BACKGROUND FOR ANY MACHLOKESS... " [PAGE 109] If there is no
mention of the
Rambam's principle in the Talmud, on what did he base it?"
R. Lampel finally concludes that the Rambam was based on Rav Hai
Gaon as quoted by
Yad Ramah Sanhedrin 33a.from Bava Basra 130b

How would you describe a psak concerning a major parameter of the
authority of
chazal  in which there is no apparent source in chazal and which
scholars for
hundreds of years have tried to justify?>>

I'm afraid that I don't find the Rambam's codification as mysterious as you
and R. Lampel seem to.  As I noted earlier, the codification seems to me
to follow straightforwardly from the p'sukim at the beginning of parashat
Shoftim from which Chazal derive the principle of "Yiftah b'doro k'Shmuel
b'doro" and "afilu yagidu lecha s'mol she'hu yemin o yemin she'hu s'mol." 
See Rashi and Ramban on those p'sukim.  Moreover, we do know of
instances in which new interpretations of p'sukim were advanced to
change the accepted halachah.  The one that comes to mind immediately
is "Moavi v'lo Moavit" to allow Boaz to marry Ruth.  I think that it would be
quite a stretch to argue that the halachah had not previously been to
prohibit marriage to a Moabite woman and that the drasha in question
was not newly advanced to support a change in the halachah.  There
may be other examples, but I would have to look at the Dor Revi'i to find
them.

<<Aside from the position of the Kesef Mishna that there was an
acceptance of Klall
Yisroel we have an alternative which is stated by the Maharal (Baer
HaGolah
beginning of 6th Baer) that the Amoraim recognized their inferior state in
relationship to the Tannaim and therefore didn't argue with them. The is
also the
position of the Chazon Ish. Rav Elchonon Wasserman in an exchange of
letters with
the Chazon Ish argues that there had to also be a Kabbala not to argue.

Bottom line. I don't see any source justifying the assertion that the mere
writing
down of the Mishna or the gemora created an authority that could not be
argued
with by subsequent generations.>>

Clearly not.  But then where are the sources for the alternatives? 
Everyone is simply advancing some more or less plausible explanation
here.  Obviously, as my learned friend Mechy might observe, my humble
opinion is not totally unbiased here, but the Dor Revi'i's explanation
seems a lot more plausible to me than do any of the alternatives.
                               
David Glasner
dglasner@ftc.gov

     Greetings.
     
     I am new to the list. 
     
     
     re: The writing of the Mishna
     
     When I studied under Rabbi Dr. M.S. Feldblum he pointed out that 
     nowhere is it stated that Rebbe actually physically wrote a Mishno.  
     what he did do is CODIFIED, editied or redacted the Mishno (pikc your 
     favorite).
     
     There is a LOT of evidence to support this:
     
     1) Nowhere in the Gemoro is there reference to any Amora saying let's 
     look at the book.  Rather they would find students to recite them from 
     memory (these were either studetns who had phenomenal memories or were 
     a form of idiot/savants).
     
     2) Had Rebbe wrote a Mishno, it would probably have been much more 
     unifrom and carefully preserved.  There are numerous editions based 
     upon the whims of publishers over the centuries.
     
     3) Even if the term kosav was used, the term chibeir is more accurate. 
     Rebbe was the mechaber of the mishno.
     
     4)  There is a reference to written notes.  I'm nor sure what evidence 
     there is to back that up.  There were SCHOOLS of Mishno that were 
     codifying case law long before rebbe.  Perhaps some of those 
     "Mishnayos" were commited to writing.  I'd love to see some eveidence 
     of that.   
     
     5)  Rabbi Feldblum posited that "stam Mishno krabbi Meir" implied that 
     in general Rebbe relied on Rebbe Meir's version or edition.  It is 
     interesteding that we usually do not pasken according to Rebbe Meir; 
     what Rebbe did follow was his style and his structure.
     
     There is no question that our Mishno evolved.  Based upon what I 
     learned it would be accurate to say:
     
     1) The Mishna was being taught all along in various formats.
     2) Rebbe standardized it by exluding Bbraisos and Toseftos, etc. and 
     coming up with a specific formula.
     3) The mishno was studied word for word but not written for perhaps 
     centuries.
     4) The Mishno as found in our printed editions of the gemoro were 
     inserted by publishers.
     
     
     Re: arguing with previous doros: 
     
     1)  The sanhedrin (while i nthe lishka) could.
     2)  I'm not sure about the Sanhedrin in Yanveh and galus.   This is a 
     real grey area.
     3)  After the Sanhedrin era there is a convention not to challgne 
     earlier eras.  The accepted excpetion is when there is a consnsus 
     accpeting the excpetion!  (Numerous puns intended)
     
     
     So the criteria is really easy:
     1) ANYONE can aruge on earlier doros (at least up until the Sanhedrin 
     era - whenever that ended)
     2) The only way that argument will be accepted is if ratified by a 
     consnsusl.
     
     The following exceptions have been made and ratified:   
     1) The Rishonim arguing with Gaonim.
     2) The Gra with Rishonim
     
     Perhaps R. Moshe Feinstein in certain cases.
     

********************


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