Avodah Mailing List

Volume 06 : Number 136

Saturday, February 24 2001

• Re: Judging another
• Re: minor fasts
• Re: minor fasts
• RE: lashon hara
• Re: Luzicide
• Re: Voss Iz Der Chilluk? #2: MC vol. 1 p. 102
• Voss Iz Der Chilluk? #2: MC vol. 1 p. 102
• Re: Voss Iz Der Chilluk? #2: MC vol. 1 p. 102
• RE: Voss Iz Der Chilluk? #2: MC vol. 1 p. 102
• RE: Voss Iz Der Chilluk? #2: MC vol. 1 p. 102
• Voss Iz Der Chilluk? #2: MC vol. 1 p. 102
• Re: Voss Iz Der Chilluk? #2: MC vol. 1 p. 102
• RE: minimising the sakono
• Re: minimising the sakono
• Who can be a dayan?
• Re: Who can be a dayan?

In a message dated 2/22/01 3:32:55pm EST, sbechhof@casbah.acns.nwu.edu writes:
> At 02:40 PM 2/22/01 -0500, Yzkd@aol.com Yitzchok Zirkind wrote:
>>                                the Munkatcher Rebbe (Minchas Elazar) argues
>>from the Gemara in Sanhedrin that discusses who does and who does not have a
>>Chelek Lolom Haboh, that one canot say that is HKB"H's Chesbon.

>  I have the sefer, what page?

On the last page under the topic RAMBAM.

> I am not sure whether what the Munkatcher is saying is relevant here: *If* 
> (Big If!) I understand correctly, he is discussing the issue of a person's 
> cheilek in OhB, and is attempting (in my opinion, he is wrong) to prove 
> that this is an objective issue, not one subject to hidden cheshbonos of 
> HKB"H. But, 'twould seem, that regardless of their cheilek in OhB, 
> individuals such as Bil'am and Menahse served as critical components in the 
> masterplan of the Beri'oh. I believe that was RAA's premise.

The point he makes is that in general Beis Din Shel Matah rules on who does 
or does not have a Chelek Lo'lom Habba (Lich'ora by establishing objective 
criteria, as in the case there of HKB"H having a Guf), from where I (perhaps 
erroneously) I extrapolated, that this negates any arument that HKB"H is the 
judge and we have no right to it, and/or it makes no difference, WRT the 
masterplan of creation that would seem a different issue (note subject line 
of this thread), and Bpashtus is true, just as the Rambam writes WRT yoshke 
and machmad.

Gut Chodesh, Gut Shabbos, v'Kol Tuv, 
Yitzchok Zirkind

Gershon Dubin <gershon.dubin@juno.com> 2/23/01  12:16 PM:
> His response was, as long as you wait after Yom Tov to chol for
> melacha. I had assumed that whatever time one waited after Shabbos was
> the same time to wait after Yom Tov, but he said there does not have to
> be equivalence between an issur sekila and an issur lav.

I think Richard Wolpoe's point about lo plug begins to become applicable
here. Though even here it may be a stretch. But in connection with
minor fasts where there is no melachah involved, no d'oraisa, and a
prolongation of tza'ar and inui nefesh, what is the justification for
rountinely adopting the more stringent opinion? And forget about R. Chaim
Brisker who flatly prohibited, I'm told, fasting on ANY day other than
Yom Kippur, because he was a machmir in pikuah nefesh.

David Glasner
dglasner@ftc.gov

From: "David Glasner" <DGLASNER@ftc.gov>
> Why is there not greater leniency practiced concerning a rabbinic
> enactment?

I'll raise you one.  I asked a local Rov (no name since I didn't
ask his permission to quote him) how late one should wait after Yom Tov
rishon to prepare for Yom Tov sheni.

His response was,  as long as you wait after Yom Tov to chol for
melacha.  I had assumed that whatever time one waited after Shabbos was
the same time to wait after Yom Tov,  but he said there does not have to
be equivalence between an issur sekila and an issur lav.

Gershon
gershon.dubin@juno.com

From: Joelirich@aol.com [mailto:Joelirich@aol.com]
> It struck me as odd that other peoples averot would cause the husband to have 
> to divorce her (or that the necessity or lack thereof of a divorce would not 
> be a function of her actions but of how people react and that in a 
> "righteous" town they would stay married)

When a husband is mikaneh his wife, AFAIK it's done in front of two eidim.
I haven't really learned the sugyah recently--is it possible that the
husband intends that these eidim make the kina'a public; if so there would
be no issur of lashon hara, at least based on an analogy to the majority
opinion of apei t'las (discussed recently).

Moreover, it seems that much of hilchos sota were meant to cause public
embarrassment to the wife and to ensure that kol ha'am yishmi'u v'yira'u.

Kol tuv,
Moshe

In a message dated 2/23/01 8:01:35am EST, micha@aishdas.org writes:
> I'm going to follow the Rambam's warning, and not worry about the
>  historicity of the medrash about Luz.

See the Mforshim on the Breishis Rabba mentioned earlier.

> I would think that (c) answers (a) and (b). Suicide is a form of retzichah,
> so it isn't an eighth mitzvah for b'nei Noach. Also, there would be no
> need to repeat the p'rat is the k'lal is repeated. IOW, the Torah doesn't
> repeat 66 dinim and all their p'ratim, only the 7 mitzvos (rashei p'rakim).

Exactly my point!  this however contradicts the M"C's POV.

Kol Tuv, 
Yitzchok Zirkind

Some ideas/derachim that won't work, and why:

1) Chiluk between mazik and dayanim (might appeal to Briskers) - even if
the dayan is not a mazik, and that changes the *nature* of his payment,
why does it change the amount? The chiddush of the lishna kamma of
the gemara (for simplicity, though the ktzos deals with the other tzad
as well) is that 'hai kula hezeika avad v'hai kula hezeika avad' and
each is liable for 100%, even though there is another party involved.
Why is each dayan not liable to compensate for 100% of the loss his
error caused even if there is a third party involved?

2) Chiluk between simultaneity and shutfus (a sevara I think R' Shimon
fans would like) - each hezek was a complete act that would have caused
damage independently of the other, they just happened to occur at the
same time. The dayanim produce a hezek bshutfus; each dayan cannot
function independently of the other. The gemara has a case of a shor
tripping over an stone and falling into a bor - the ba'al ha'even cannot
say if not for your bor the shor would have just stumbled and gotten up,
because the ba'al habor argues that if not for your stone the shor could
have avoided the pit. IOW: the hezek occurs only b'shutfus, each factor
independently not enough to cause liability - and nonetheless we say
hai kula hezeika avad and apply R"N's din.

Good Chodesh!    -CB   

Here are my answers.

I don't know if these answers are glatt or not-I could be writing
something which is soser a mefurash gemara/halacha but I'll take my
chances.

1) One answer could be that by the case of shor and bor, each one
individually would have caused the full hezek. By hezek you are chayuv
for the maaseh hezek (either cause you didn't watch animal proprerly or
your mammon caused damage). Both by the ba'al habor and ba'al hashor, if
the other party wasn't in the equation the maaseh hezek still would have
happened. Consequently, each party has 100% achrayus in the maaseh hezek.
By beis din, there was no maaseh hezek. At most it is garmi or m'vateil
kis shel chaveiro. By dayanim, the chiyuv comes from a hischayvus that
each dayan accepts on himself in judging the case. Just like the baalei
dinim accept on themselves to listen to the psak din, so to the dayanim
agree that if they mess up they will pay the baalei dinim-not m'din hezek
but a form of hischayvus. However, each dayan only accepts on himself
a percentage of the total loss. If there are 3 dayanim, each one only
acepts 1/3 hischayvus.

2) Both cases are a ma'aseh hezek. There is no such thing as a hischayvus
of dayanim to pay. Rather the chiluk is by hezek case each party is
100% responsible as explained above. By dayanim, each party is not
100% responsible-it is b'shutfus. As an example to illustrate this,
the gemara in Baba Metzia has a case where 2 workers are working a plow
and the plow gets damaged. In a situation where it is not clear who was
solely responsible we pasken both have to pay. Tosfos explains cause
each one is poshea and therefore both are chayuv. In other words where
both parties are equally responsible, they share the damages. However,
(tosfos doesn't say this last point-it's my own haarah but I think it's
pashut) we would not say that each one is really chayuv to pay 100%
but rather each one is chayuv to pay 50%. So to in the dayanus case-each
one's responsibility is only 33%. So each one's chiyuv is only 1/3.

I'm terrible at classifiying things, and I'm still not sure I understand
the different nuances in the derachim so I'll leave it to others to fill
this part in.

I guess I anticipated R' Chaim Markowitz with my other e-mail. Teirutz
#2 won't work because the case of even/bor is one of shutfus as well.
Teirutz #1 doesn't work because the chiuyuv of dayanim is not just a
kabbalas hischayvus that the dayan determines - it is m'din garmi, which
is a chiyuv *imposed* like any other ma'aseh hezek, kal v'chomer if it
is natal v'nasan b'yad. If 2 people simultaneously caused a hezek through
garmi you wouldn't dimish their liability - why are dayanim different?

From: C1A1Brown@aol.com [mailto:C1A1Brown@aol.com]
> Some ideas/derachim that won't work, and why:

> 1) Chiluk between mazik and dayanim (might appeal to Briskers) -
> even if the dayan is not a mazik, and that changes the *nature* of his
> payment, why does it change the amount? ...
> Why is each dayan not liable to compensate for 100% of the loss his
> error caused even if there is a third party involved?

According to my answer, you have a reason. I wanted to say the dayanim's
chiyuv comes through their own hischayvus and they are only m'chayuv
themselves 1/3 of the amount. You find a similar idea by sichiras poalim. If
the worker backs out and causes the ba'al habayis a loss the baal habayis
can hire someone else up to double the original wages and charge the worker
for the extra amount. The Ritva says it's only up to double and not more
because that's the amountthe worker wqas m'chayuv himself for when he took
the job. 

R' Chaim Brown then wrote :
> 2) Chiluk between simultaneity and shutfus (a sevara I think R' Shimon
> fans would like) - each hezek was a complete act that would have caused
> damage independently of the other, they just happened to occur at the
> same time. The dayanim produce a hezek bshutfus; each dayan cannot
> function independently of the other....
>                       IOW: the hezek occurs only b'shutfus, each factor
> independently not enough to cause liability - and nonetheless we say
> hai kula hezeika avad and apply R"N's din.

The real question is what would you say about the Tosfos about the 2
workers, Is there a 100% chiyuv on each worker or 50% chiyuv. If even in
Tosfos' case you say each worker has 100% chiyuv so you have a kashe. If not
you need to also explain why Tosfos different  than gemara. Possible chiluk
is by shor tripping on the stone, we don't care what the shor hurt himself
on-bottom line is he tripped and the stone caused maaseh hezek. Similarly,
from the baal habors point of view-we don't care how he got into the bor
bottom line is he was damaged in the bor. By dayanus or case of workers,
each individual partially contributed to the hezek. The maaseh hezek didn't
happen without input from the other.

> I wanted to say the dayanim's chiyuv comes through their own
> hischayvus

Understood.  But its not true - see Bechoros 28.

> Possible chiluk is by shor tripping on the stone, we don't care what
> the shor hurt himself on-bottom line is he tripped and the stone caused
> maaseh hezek.

No. Why is it a ma'seh hezek if a shor trips on a stone? It normally
will recover its balance. It is only the presence of the pit which causes
the act of hezek to occur. Both factor 'b'shutfus' cause the hezek.

Re; your analogy to workers:
> However,(tosfos doesn't say this last point-it's my own haarah but I
> think it's pashut) we would not say that each one is really chayuv to
> pay 100% but rather each one is chayuv to pay 50%.

The whole point of the gemara in B.K. is that each one is indeed chayav
to pay 100%!

Disclaimer:

All I agreed to for this chabura is to read what is posted. Having said
that, I'll toss my own sevara in, but leave it to RYGB to classify:

From: "Yosef Gavriel and Shoshanah M. Bechhofer" <sbechhof@casbah.acns.nwu.edu>
> So too here, we should say that the last third that cannot be collected
> from the dayan who proved to be correct should be collected from the
> other two dayanim (i.e., one-sixth apiece).
> Why not?

The hezek was done by the adam and the shor, or the shor and the bor.
The degree is arbitrarily set at 50%; subject to change ee leka
l'ishtalumei mehai etc.

The psak din was done by three dayanim. The dayan who was correct bears
no responsibility. It is only an issur lashon hara (IIRC) that prevents
him even saying so to the ba'alei din. So he has no responsibility at
all to be re-divided among the other two.

Me'inyan le'inyan, how does this fit with the objection of "nachi riv'a
demamona apuma dechad sahada"?

Gershon
gershon.dubin@juno.com

A Brisker sevara, which I think is best expressed by chakira (which is
a toolmore used by R' N. Trop than by R" Chaim): yesh lachkor when we
say ki leika ishtalumei (e.g. the shor is a shor tam) does that mean the
ba'al habor is the mechayev of for the 75% of the tashlumin he pays, or
really the ba'al hashor is still chayav 50%, just we say half of his 50%
is taken from the ba'al habor's pocket? (By way of analogy, by shibuda
dr' nasan where A is chayav to B who is chayav to C, is the chiyuv now
from A to C, or in lomdus the hischayvus is still to B, just C collects
the money. Is the 25% hischayvus which we exempt the ba'al hashor from
paying now transferred to the ba'al habor, or is the hischayvus still
on the ba'al hashor, but the money must be paid by the ba'al habor?)
Perhaps one could say ki leika l'ishtalumei transfers not a hischayvus -
it is not just a means of taking the money out of someone else's pocket.
So by the case of mazik, where each party contributed something to the
hezek, I can transfer part of A's hischayvus to B who is equally guilty.
But by the case of dayanim, there third dayan hasn;t done anything wrong
so there is no hischayvus to transfer!

(The difference between the ktzos 'classical' achronish derech and Brisk:
The ktzos understansds the gemara k'pshuto that each party is chayav 100%
and no real transfer of anything occurs - we just exempt you from payment
if you can divide your obligation with other people. The whole idea of
lomdus is that there is something abstract going on below the surface -
this intangible thing called hischayvus which the gemara never referred
to is lurking beneath the surface, and conceptually that is what is
being transferred.)

This kashe is far more challenging than last week's! The other derachim
should have fundementally different answers,not just restate the same
principles in different ways, no? That will be difficult.

-Chaim B.

> In regards to the whole question of nature vs hashgacho, the Ramban at the
> end of parshas BO and in B'chukosai somewhat touches on this topic. I am
> still not clear how to understand the Ramban since he seems to attribute
> every day events to nissim nistarim but he also seems to hold 
> there is a concept called teva. 

Bkitzur nimratz, look at Dr. David Berger's paper dealing specifically with
the Ramban.  The exact cite for the article can be found in Rabbi Shalom
Carmy's article, cited previously.  Berger's article was discussed in the
last go-around on this topic--around the end of July.

Kol tuv,
Moshe

Yet another shitah, the Ran. I'm attaching an excerpt from R' Ezra Bick's
d'var Torah for this week, sent out of Gush <yhe.org>.

Note that the Ran attributes all acts that operate within natural
OR supernatural laws to mal'achim. He therefore has a level that
isn't natural, is related to s'char va'onesh, and yet we can't
tell if the Ran includes it as siyata diShmaya.

-mi

The Ran (Derashot HaRan 4) adds another, theological, question. The
entire parasha we are discussing seems to be telling the Jews that
G-d is sending an angel in His place, and that we should relate to the
angel as THOUGH HE WERE A GOD. "Beware of him and listen to his voice,
and do not disobey him." And, even more shockingly, "for he will not
pardon your sins." This sounds, says the Ran, "as though we have been
delivered nearly to accepting him as a god, intermediate between G-d and
us... but we should not receive any command or prohibition from anyone
other than G-d alone." This question of the Ran will be especially
troubling after last week's shiur, where I claimed that G-d Himself
emphasizes the lesson of the giving of the Torah at Sinai as showing
that there can be no intermediaries between G-d and Israel. Why does
our parasha seem to be stating the opposite?

B. Natural and Supernatural Providence

The Ran, as part of his answer to these questions, explains the
metaphysical meaning of "angels" in the Torah. He explains that when
G-d's actions in the world are in proportion to the causes in the world,
this is described as being done by an angel, meaning by an agent who
acts in accordance with rules. For instance, this would be true of any
act of Divine Providence that took place within the laws of nature. For
that reason, the Rambam states that the laws of nature are "angels,"
meaning agents of G-d's will. The same holds true of moral rules as
well. The basic moral rule is reward and punishment; in other words,
justice. By this rule, a man gets what he deserves. If a man gets only
what he deserves, whether reward for virtue or punishment for sin, he
is under the providence of an "angel." In other words, "angel" means the
providence of rules, where the law of cause and effect holds. The effect
cannot be greater than the causes. The angel does not diminish G-d's
responsibility for the effect, but merely signifies that the effect is
according to the rules of nature or of Divine Providence.

By contrast, a direct action of G-d signifies a PERSONAL response of G-d
to the human condition. Here, there is no necessity for proportion between
cause and effect, as the law of cause and effect does not bind G-d. Causes
are, in fact, irrelevant, since G-d Himself and His will are the only,
and the direct, cause. The action could be attributed to G-d's love, or to
His anger, but in any event it is attributed to the personal care of G-d.

In this way the Ran explains the apparent contradiction between
the two angels we have examined. If one sins, the rule says that
one will be punished. The rules do not allow for pardon, since that
violates justice. How could one's condition be different than what one
deserves? Pardon for sin, in the eyes of an "angel," is like a match
deciding to burn without friction, "pardoning" one who neglected to
strike it. Hence, "he will not pardon your sins." On the other hand,
the punishment will always "fit the crime," and therefore will probably
not lead to total destruction. But if G-d is directly leading the Jews,
and they, a stiff-necked people, rebel and not follow His ways, the
possibility that "I devour you on the way" exists. Personal attention
is a wonderful -- but potentially exceedingly dangerous -- thing.

But, it is important to remember, there is no necessary contradiction
between the two. G-d can transfer the providence over the Jews to natural
and proportional cause without abandoning them. The two can exist at
the same time. If there is no fear of "lest I devour you on the way,"
G-d has no reason to remove His personal attention from the Jews, even
while subjecting them to a set of rules whereby the results are dependent
on the preparation of the proportional causes.

The sichah from R' Aharon Lichtenstein that Gush sent out this week brought
my attention to a Ramban on the opening of this week's parashah.

1) "'Ve'eileh hamishpatim asher tasim lifneihem' - [the phrase]
'lifneihem' [implies that you shall put the laws] before them and not before
gentiles."

2) "'Ve'eileh hamishpatim asher tasim lifneihem' - [the phrase]
'lifneihem' [implies that you shall put the laws] before them and not
before a non-ordained judge."

Tying into our conversation of earlier this week, I wonder how one
is permitted to take a din Torah to anyone bizman hazeh. The gemara
(Gittin 88b) seems to hold both conclusions lihalachah.

-mi

-- 
Micha Berger                 When you come to a place of darkness,
micha@aishdas.org            you do not chase out the darkness with a broom.
http://www.aishdas.org       You light a candle.
(973) 916-0287                  - R' Yekusiel Halberstam of Klausenberg zt"l

In a message dated 02/23/2001 2:33:13pm EST,
> Tying into our conversation of earlier this week, I wonder how one
> is permitted to take a din Torah to anyone bizman hazeh. The gemara
> (Gittin 88b) seems to hold both conclusions lihalachah.
 
AIUI it's all "pshara" based now rather than din (ie the litigants accept  
the arbitrators)

SS
Joel

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