Avodah Mailing List

Volume 02 : Number 062

Wednesday, November 25 1998

• HAVDALA
• 50th birthday
• Re: eved as shliach, kinyanim on bechorah
• R. Akiva on "Et" to include talmidei hakhamim
• R' Yaakov on the Rambam
• Dor Revi'i on ayin tahat ayin
• Ayin Tachas Ayin
• ayin tachas ayin; expelling students; Eliezer as shali-ach.
• Re: yad eved k'yad rabbo
• Re: Nice Vort!
• yad eved/yad poel, P' VaYetzei
• Re: ayin tachas ayin; expelling students; Eliezer as shali-ach.
• Re: yad eved/yad poel, P' VaYetzei
• Re: Dor Revi'i on ayin tahat ayin
• P' VaYetzei
• Ayin Tahcas Ayin
• Re: R' Yaakov on the Rambam

Baruch asks about sitting for Havdala.
In fact, the GR"A [Vilna Gaon] held that we should sit for
Havdala.  His opinion was not generally accepted as standing
was already a well established custom.  Brisker follow the
Gaon in this, as in other matters where he is in the minority
[no Tashlich, for example].  Haim of Volozhin, the Gaon's
successor, talmid, and founder of teh Litishe Yeshiva movement,
stood for Havdala.

__Bob Werman
Jerusalem

About an appropriate vort for a 50th birthday, I think discussing Yovel 
is a very appropriate topic, specifically how 50 years is called an 
"olam" in the Torah.  Just a thought,  not nec.  "high-level" but it 
might give you and others on the list some ideas.

Raffy

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Get Your Private, Free Email at http://www.hotmail.com

1. Even after Mattan Torah, shi'abud does work on davar shelo ba la'olam
(see the Bigdei Shesh siman 50). The sale of the bechora may welll have
been a shi'abud, not an hakna'a.

2. To make this l'ma'aseh, how can a Jew participate in futures trading if
it is DSBL (forget about Ribis issues for now)? Must be - dina d'malchusa
overrides DSBL. Could be that was at work in the Mechiras ha'Bechora.

Just thoughts!

On Tue, 24 Nov 1998 Yzkd@aol.com wrote:

> Your assumption makes a lot of sense, we also find Poskim who explain
> that the rule of Ein Lmeidin Mkodem Matan Torah applies only to halochos
> that aren't Msvoroh, (see Sdei Chemed Kllolim Aleph), however WRT DSLB"L
> since there is Machlokes whereas Rabi Meir holds that one can be Makneh
> a DSLB"L so either way makes logical sense, hence the application of
> Sevorohs can change before and after Matan Torah, and see Tosfos D"H
> Tashich B"M 70b WRT Ono'oh and Ribis Kodem Matan Torah. To further
> explain this - the Ramoh (Teshuvo 10) explains that there is argument
> whether to a Ben Noach is applied the law of Torah or their laws are
> what binds them (all that Torah required was to set up a court system
> and not to steel, but other issues regarding Kinyonim etc. they can do
> as they please), now while the Halacha is that we apply the Din Torah,
> however before Matan Torah perhaps according to all (that they didn't
> know the Torah, as it doesn't say that Noach Sheim Veiver and Avrohom
> tought them those laws, even if they did there is no proof that it would
> be binding for them) they could apply their own law, Ub'nidan Didan that
> DSLB"L can be Nikneh.


YGB

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

See Rav Kook, "Derekh haTehiyya" in Maamrei haReiyah, end of the article.

From the "Emes l'Ya'akov" (R' Ya'akov Kamenetsky) al ha'Torah pp. 15-16,
free translation:

"And these words of the Ramban [that Shomayim] is something beyond our
skies] are what sustained me when we saw people come off a 'plane' down a
ladder on the moon. I thought then, what would the Rambam (Yesodei HaTorah
3:9) answer now in defense of that which he wrote that the moon is a
spiritual entity. I thought then, that Kabbala has vanquished Philosophy,
and consoled myself with the words of the Ramban.

"But, in light of our attitude towards the Rishonim, that we apply to them
'eilu va'eilu divrei Elokim chaim,' even if we say that in this matter
halacha does not follow him, I could still not make peace with the Rambam
having said something wrong. For, if the Rambam could make a mistake in
Hil. Yesodei HaTorah, why might he not also make a mistake in Hil.
Shabbos?

"It seems, therefore, that we musst ask concerning all the matters
contained in the first four chapterrs of HYh"T, the Rambam writes at the
end of these halachos (4:13): 'The matters in these four chapters are that
which the ancient Chachomim called Pardes.' Yet, in Chagiga (11b) it says
that one may not expound Ma'aseh Bereishis etc. nor Merkava one on one,
unless the recepient is a Chacham u'Meivin Me'Da'ato etc. If so, such
matters could not have been written, but were given over from mouth to
ear, so how could the Rambam wrrite them in his work and publicize them to
all, especially as the Rambam himself (4:10) brings this rule not to
expound thes matters in public - so how can he cite them in his work?

"We are forced to say that that which the Rambam gave us here in these
chapters is neither Ma'aseh Merkava or Ma'aseh Bereishis, rather all he
wrote in these four chapters is frrom his expansive knowledge of secular
wisdom, not the wisdom of Torah, but sheer Philosophy [from fn 12: "In a
private conversation Rabbeinu - R' Ya'akov - explained his meaning: 'That
accorrding to his knowledge of Philosophy he learnt thus in Chazal.'"] -
and we shoul mention that the Gr"a already  noted in YD 179:13 that the
Philossophy swayed him with his vast knowledge thereof, ayain sham. The
Rambam wrote these chapters only as a Preface to the Yad Ha'Chazaka, and
the primary body of the work begins with the fifth chapter: 'All of the
House of Israel is commanded on Kiddush Hashem etc.' and one, therefore, 
cannot compare a mistake in these halachos to one in Hil. Shabbos, etc." 

YGB

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

I don't think that it is possible to determine whether the simple p'shat of
ayin tahat ayin means physical removal of an eye or monetary
compensation for an eye.  Either meaning can be read into the text
without resorting to any of the thirteen midot and one could make various
reasonable arguments to support either interpretation.

In Hilchot Choveil u'Mazik, the Rambam offers textual arguments favoring
the monetary compensation interpretation, but asserts that the monetary
interpretation was prescribed "mi-pi ha-Sh'mua," so that every beit din
from the time of Moshe understood the verse to refer to monetary
compensation.  This is sometimes wrongly understood as halachah
l'Moshe mi-Sinai, but under the Rambam's categorization in his
introduction to Zeraim (which is itself problematic, see bleow) halachah
l'Moshe mi-Sinai refers to halachot that could not be derived by
interpreting the Biblical text, for example the 18 terefot are learned as
halachah l'Moshe mi-Sinai, because they could not be derived from the
Biblical text itself which refers only to injuries so grave that death is
imminent.  Thus, according to the Rambam, mi-pi ha-Sh'mua
interpretations of the text were received by Moshe and transmitted
without dispute or corruption through the generations.

If you will indulge me in again citing the Dor Revi'i, I would note that in his
Hakdamah he strongly challenges the Rambam for this assertion about
ayin tahat ayin.  It is not entirely clear to me whether he questions the
Rambam's entire category of mi-pi ha-Sh'mua or just its applicability to
ayin tahat ayin.  The latter is probably the case, but I think that (here too)
one could argue the p'shat in the Dor Revi'i either way.  The problem with
the Rambam is that the only way one can identify a mi-pi ha-Sh'mua
interpretation is by checking Chazal to see if there is any record of a
dispute concerning the interpretation.  If there is record of a dispute, an
interpretation can't be "mi-pi ha-Sh'mua" for how is it possible that Chazal
allowed a Divine interpretation to have been corrupted or forgotten?  But,
as the Dor Revi'i points out there were disputes concerning the
interpretation of ayin tahat ayin, for example do we calculate the value of
the perpetrator's eye or the victim's eye.  This is the subject of a
Tannaitic dispute.  According to the Rambam, if this was a mi-pi
ha-Sh-mua interpretation, how could such a basic element of the
interpretation have become the subject of a dispute?  More generally, as
the Havot Yair shows in teshuva 198 (I think that's the right one), in case
after case cited by the Rambam as mi-pi ha-Sh'mua or Halachah l'Moshe
mi-Sinai, there are all kinds of disputes about various details of the
interpretations or the halachot and many instances in which basic
interpretations or halachot were forgotten. 

The question of the Dor Revi'i is what evidence the Rambam has to
support his assertion that every beit din from the time of Moshe
understood ayin tahat ayin to mean monetary compensation.  It is at least
conceivable that some beit din, say that of Yiftah, might have legitimately
(i.e., within its halachic authority) have interpreted the verse ayin tahat
ayin to mean physical removal of a limb.  The Rambam in Mamrim 2:1
explicitly allows the Sanhedrin to change the halachah based on an
alternate interpretation of the Biblical text.  The Rambam only avoids this
possibility for ayin tahaht ayin through his separate category of mi-pi
ha-Sh'mua interpretations.  But this separate category is questionable in
general as shown by the Havot Yair and its applictbility to ayin tahat ayin
in particular is contradicted by clear evidence of dispute among Chazal
about its interpretation.

David Glasner
dglasner@ftc.gov

Arnie or Linda Kuzmack
kuzmack@cpcug.org writes:

>>on balance, this evidence seems to support the idea
that a literal interpretation was possible.<<

I do concede the possibility of it being taken literally. (here comes a real 
hair split)  However, it being taken metaphorically is (IMHO) still in the realm
of Pesaht and does not require Drush.  (the specifics of the compensation DO 
require Drush)

Lemohsol: Charon Af literally involves some sort of visible and audible nasal 
manifestation. BUT it's not the peshat of charon Af.    A bull might literally 
snort with anger, but the peshat of charon Af is idiomatic and indicates anger 
reagrdless of the condition of one's nasal passages.

If Yaakov Ovinu learned with Shem vo'ever in the meadow instead of in a tent 
would he lose his title of Ysheiv Oholim?  I really doubt it. 

Regards,
Rich Wolpoes

Re: ayin tachas ayin and A. Kuzmack's (inaccurate) comment that the =
Torah does not make distinctions based on class: Parshas mishpatim sets =
a finite penalty for killing an 'eved. I believe that there are =
distinctions in mishnos Bava Kama as to gender and class, and in =
Sanhedrin as to King and Cohen Gadol.
Re: expelling student from Jewish school: as memory serves, Rabbi =
Hershel Schachter (Y.U./R.I.ET.S.) published an article on that topic in =
Journal of Halakha and Contemporary Society. I don't know which volume. =
I heard from Rabbi Menachem Feinsod (Passaic) that in Europe a certain =
student was asked to leave Jewish school, in that case on account of =
parents' inability to pay tuition. He eventually changed his last name =
to Trotsky and the rest is history. . . .=20
Re:>  >>>1) WRT freeing Eliezer we enter the issue of Oveir B'esseh, =
perhaps this  would be like Mitzvoh D'rabim (Brochos 47b).  =20
>  Without the derush you could argue this mehalech based on Ramban's =
geder of  that aseih being equivalent to 'lo techaneim' and you don't =
need mitzvah d'rabbim.=20

See the Sugia in Brochos and Klei Nossim on the Rambam (Hil. Avodim) =
that for
this we do need Mitzvoh Drabim.

BTW I don't understand the Gemoroh's answer that Mitzvoh Drabim is =
different,
is a Korban Tzibur allowed to come from Gezel?

> Derech derush perhaps everything with regard to the avos is=20
> mitzvah d'rabbim as they embodied all of klal yisrael at the time.  =20

That was what I meant, Ubnosof to the Halacha that Lissoh Isho one can =
sell a Sefer Torah.

It seems to me, concerning this discussion that the dialogue slipped =
from Yaakov-Esav to Eliezer at Padan Aram. WRT latter (it took a long =
minute to figure out that r"t), refer to gemaros (parallel sugyos, I =
guess) in B.B., Gittin, Brachos and Chagiga, that freeing an eved for =
mitzvah d'rabbim supercedes the issur of freeing the slave.  In Brachos, =
the mitzvah is tefilla b'tzibbur; in the other masechtos, the issue is =
one of "lo tohu b'ra-a, lasheves yetzara" and so even if the Avos were =
deemed bnai-Noach before matan Torah they may still be have been bound =
by a directive to procreate (if only as the corollary of the prohibition =
against onanism (not yet so named, of course:)  )). Consequently, either =
it was permissible to free Eliezer for that purpose or Eliezer had a =
relationship to that command because the parameters of avdus and their =
jural consequences may not yet have been in place before matan Torah.
Alternatively, see Greenberg's Iturei Torah quoting a vort that Eliezer =
was yitchak's slave ("v'chol yesh lo nosan beyado"). (BTW, the vort is =
shver from a pasuk: "'eved Avraham anochi.")

In a message dated 11/23/98 10:03:03 PM EST, C1A1Brown@aol.com writes:

>  Even granting the sevara of yad eved k'yad rabbo for sh'chitat kodshim, as 
> is
>  the context of the Sefer HaMakneh quoted by Yitzchak, couldn't one 
> distinguish
>  between the mechanical act of shchitah and the act of kiddushin where a 
> verbal
>  declaration of harei at... is required ?

Shaarei Chilukim Lo Ninalu, however (Bnosof to the other refrences that say it
WRT to our issue tke Kiddushin of Yitzchok) it isn't Muchrach, because in
Shlichus we have to connect the Sholiach to the Mshaleich hence anything that
gets in the way breaks the connection, however in using the idea of Yad Eved
we are saying this is the Odon himself. However when he does opposite of the
will of the Odon then we cannot apply this (as in Hil. Trumoh being Toireim
Sheloy Bershus we say Ein Odom Osseir Dovor Sheinoi Sheloi).

> (Avnei Miluim 35:9 uses a similar
>  sevara to explain why acc. to some Rishonim a shliach l'holachs haget is
>  kosher but not a shliach kabbabla).   

Thanks for this reference.  What I find needs Iyun here is to be Maamis this
in Shitas Horan, when the Raan holds that by Get the words are Maakeiv
Doreisoh (Beis Shmuel 136).

Why can't we say that (Lshitas Horan) the words even when needed are Bgeder
Birur that all parties reveal that they know what is happening, in that case
we don't need Shlichus on this as Asukim Bosoy Inyan would also help.

Kol Tuv
Yitzchok Zirkind

In a message dated 11/24/98 11:51:56 AM EST, yadmoshe@netmedia.net.il writes:

The Mkaleh Amukos (1:73) says that Rabi Shimon Hoamnusee was a Gilgul of the
first Shimon the power of this Koach Hadrush on the word Es came from
"Vayotzei Aleihem Es Shimon" (Breishis 43:33), Rabi Akivoh too was a Gilgul of
Shimon.

>  "Es" that it remained a dispute among Tanaim as to  whether
>  to darshan "Es". This was true not only for Agada but also for Halacha .(
Kiddushin   
>  56b;Bechoros 6b)

While in those two places the Machlokes doesn't reflect on the Halacha Bpoeil
(rather how they derived the particular law), the Machlokes in Niddoh 35a, is
a Nafkoh Minoh Lhalocho.

>   ( c ) Rambam:Drasha is only Rabbinic
>  The Rambam (Sefer HaMitzvos Shoresh II)  uses this Drasha to illustrate
that 
> not
>  everything that looks like a Doreissa is in fact a Doreissa. 

That is only when it says Es V'es perhaps he does consider a D'oreisoh, see
Hil. Psulei Hamukdoshin 11:8, and see Tosfos D"H Vrabi Shimon Minochos 11b.

> The Rambam [Hilchos  Mamrim 6 4) (according to the Radvaz Chelek 8 #165)
holds that > the drasha at  the
>  base of honoring Torah scholars is only rabbinic. Therefore he holds that 
> even in
>  the case where the son is a talmid chachom the father's honor takes 
> precedence
>  since it is Doreissa while the son's is only DeRabbonon.

This needs some Iyun as the issue in Shoresh 2 is WRT Moroh WRT Kibbud and
standing up the Rambam counts it as a Mitzvas Asei (Sefer Hamitzvos M"A # 209,
Hil. Talmud Torah 6:1), the difference between the 2 are very well defined in
Hil. Taalmud Torah chapters 5-6.

Kol Tuv
Yitzchok Zirkind

>>>A'draboh, the reason that there is problem to receive his Shtar Sichrur is
due
to him being Yaad Raboi so it never got to him, that is why we need the idea
of Gitoi Veyodi Boin Keachas, that is also why Mah Shekonoh Eved Konoh Raboi
as he is an extension of his master so he can't acquire for HIMSELF.<<<

Exactly - Its a din in kinyanim, not a general din that would grant the eved
the ability to create a chalos kiddushin.  

>>>See C"M 346:6, that in case of borrowing when done through an Eved it is
called B'olov Imoy, Mah Shein Kein with a Sholiach.<<<

Sounds like a special din in ba'alav  that is perhaps also related
specifically to dinei mamonos and kinyanim, see Ritva B.M. 96.  R' Akiva Eiger
on CM 346 references the Machne Ephrayim that yad poel k'yad ba'al habayit.  I
think you would be hard pressed even acc. to Machne Ephrayim to argue that a
poel akum could create kiddushin for a yisrael - so why argue that because of
yad eved k'yad rabbo an eved has such power?  (The Makneh only said the sevara
by shchita of a korban, not by kiddushin - one can be mechalek, no?)     

>>>BTW I don't understand the Gemoroh's answer that Mitzvoh Drabim is
different,
is a Korban Tzibur allowed to come from Gezel?<<<

Acc. to Ramban's chiddush (I think its quoted by Rashba in Gittin as well)
that the issur of freeing an eved is b'geder 'lo techaneim', we understand the
heter is based on the 'to techanim' consideration of what you receive in
return - it would not apply to other issurim like gezel.  

Time to move on to next week's parsha!  Off the cuff (I haven't gone over
VaYetzei yet but want to get the ball rolling) how was the kiddushin/nesuin of
Leah chal - wasn't it a mekach taus? 

-Chaim B.

On Wed, 25 Nov 1998, Noah Witty wrote:

>> Re: ayin tachas ayin and A. Kuzmack's (inaccurate) comment that 
the Torah does not make distinctions based on class: Parshas 
mishpatim sets a finite penalty for killing an 'eved. I believe 
that there are distinctions in mishnos Bava Kama as to gender 
and class, and in Sanhedrin as to King and Cohen Gadol.
<<

I apologize for my imprecise language.  I was thinking of the case under
consideration and did not intend to make a general comment about all
apects of Torah.

Kol tuv,
Arnie
kuzmackcpcug.org

In a message dated 11/25/98 1:05:30 PM EST, C1A1Brown@aol.com writes:

> Time to move on to next week's parsha!

Agreed!

Once again I refer someone to the Book Dynamics of dispute becuase it
deals with these issues. Not having the book in hand I will cite from
memory that there is a difference between general rules and particulars.
It is very possible that Hashem told Moshe Eiyen tachas eiyen in money but
not literal and didn't tell him how to asses the value. That was left to
beis din. So I don't follow how the fact that there are disputes in
details
challanges the premise that any law not disputed in shas (at least could
be--see why amoraim don't argue on taanaim) said from hashem to moshe.
Furthermore, how do we suggest that a different beis din ruled it was
meant literally-why didn't that opinion make it into any taanaic
literature. We can't negate the logic of the Rambam by supposing there are
disputes which were never recorded.
Elie Ginsparg

On Wed, 25 Nov 1998 C1A1Brown@aol.com wrote:
 
> Time to move on to next week's parsha!  Off the cuff (I haven't gone
> over VaYetzei yet but want to get the ball rolling) how was the
> kiddushin/nesuin of Leah chal - wasn't it a mekach taus?

Mekach ta'us by Ishus Ben No'ach?

YGB

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

>> saw a series of articles on the topic in what appears to be a recently 
commenced journal (English lang.) entitled "S'vara."  I'm not sure of
the scopre of "ain hamikra yotzei midei pshuto" but if pushed to 
literalness, one might think that there are circumstances where midas a 
din will be triggered (e.g. true malice) and God may exact precise 
retribution (lo aleinu).--Noach Witty.<<

R. Yeruchom Gorelick noted this, that the reason the Torah chose such a harsh 
metaphor was to indicate that midin shomeyim it was "to be taken literally" ie. 
the person deserved to have their eye removed. However, On a practical level 
(midinei odom) we can only compensate with money since no 2 eyes are exactly 
alike (as alluded to in the TB)

V'katzoso es kappo is probably a similar metaphor, we don't literally chop off 
her hand, OTOH <pun> the Torah is harshly condemning the guilty party with harsh
language.

Drocheho Darchei Noam.  While the sentiment of a possuk might be harsh, the 
execution of judgement was quite practical and in contrast to those of 
contemporary societies such as Bovel.  

Regards, Rich W.

In a message dated 98-11-25 10:41:46 EST, you write:

<< 
 "We are forced to say that that which the Rambam gave us here in these
 chapters is neither Ma'aseh Merkava or Ma'aseh Bereishis, rather all he
 wrote in these four chapters is frrom his expansive knowledge of secular
 wisdom, not the wisdom of Torah, but sheer Philosophy [from fn 12: "In a
 private conversation Rabbeinu - R' Ya'akov - explained his meaning: 'That
 accorrding to his knowledge of Philosophy he learnt thus in Chazal.'"] -
 and we shoul mention that the Gr"a already  noted in YD 179:13 that the
 Philossophy swayed him with his vast knowledge thereof, ayain sham. The
 Rambam wrote these chapters only as a Preface to the Yad Ha'Chazaka, and
 the primary body of the work begins with the fifth chapter: 'All of the
 House of Israel is commanded on Kiddush Hashem etc.' and one, therefore, 
 cannot compare a mistake in these halachos to one in Hil. Shabbos, etc." 
 
 YGB
  >>
The Rav certainly felt that in studying the Rambam it was hard to know when it
was the Rambam the Jewish philosopher and when it was the Rambam the
aristotelian philosopher. This problem extended to all the philosophers of the
time(eg R' Sadya){{my note-of all times??}} and thus the Rav tried to
construct a Jewish Philosophy from pure(or almost pure) total Jewish
source;the Halacha, which he reverse engineered to get the underlying
understanding of the philosophy, as it applied to man, behind it.


Kol Tuv
Joel Rich

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


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