Avodah Mailing List

Volume 08 : Number 102

Wednesday, January 30 2002

• Re: Din Torah
• Taanis Ester
• Re: Taanis Esther yet again, also Mother's Day.
• Re: Taanis Esther yet again and again, and again...., also Mother's Day.
• Re: Taanis Esther yet again and again, and again...., also Mother's Day.
• Re: lower criticism
• Re: lower criticism
• Re: Lower criticism
• halakhic methodology - Mayyim Acharonim
• Re: halakhic methodology - Mayyim Acharonim
• Halachic Methodology & Chalav hacompanies
• Re: Chalav hacompanies

Do I have this straight?

Reuven and Shimon agreed that Reuven would pay Shimon a certain specified
amount for the damages, and that the payment would be done in a certain
way. Shimon claims that he never received the money. Reuven then produces
a cancelled check as evidence that he *did* pay Shimon. However the
evidence is flawed: It bears a name which is similar to Shimon's but
not exactly the same.

My gut feeling is to say that Reuven's evidence is pasul and that the
din would be in favor of Shimon, but I really don't know anything about
the halachic rules of evidence. And perhaps that's the crux of the
whole issue.

However, R' Carl then adds: <<< It has been suggested that the sender
should go after the bank for cashing the check (possibly) without proper
identification of the recipient ... So far, the sender (Reuvain, the
mazik) has declined to do so. >>>

Whoa! The defendant declines to participate in the investigation?

Does "go after the bank" refer specifically to "asking the bank for the
money because it's their fault", or does it also include "asking the
bank(s) to research their records and find out whose account the money
went into"?

Does "shtika k'hodaah" count in a tort case? I think that if Reuven
wants to be off the hook, he should put up more of a defense than just
"Look! Here's the check I sent. I'm sorry I misspelled the name, and I
don't know who actually opened the envelope that I slightly misaddressed,
but look, the bank cashed it, and the money left my account, so I am
yotzay and done. Gamarnu."

Akiva Miller

1) MeInyan LeInyan. While Esther’s feast (the fall of Haman) is
commemorated at least in the Magen Avraham Hilchos Pesach (to eat
something additional at the second Seder) is there any discussion anywhere
of Ester saying on Nisan 13 [3:12] that she "was not called to come to
the king this thirty days" (4:12), that is, since . . . "Taanis Ester"?

2) "Taanis shel Simchah"/"Ashkenazi Minhag": Isn't Taanit Ester one of
the fasts in Sefardic Minhag NOT announced on the Shabbos before the fast
(Avudraham)?

Nachman Levine

At 10:54 AM 1/28/02 -0500, Michael Frankel wrote:
>RYGB: <<To be sure, TE presented a conundrum to Chazal. They were
>compelled, by writ and by logic, to commemorate "Divrei ha'Tzomos
>v'Za'akosom" (Rambam Ta'anios 5:5), but could not, early on, do so on 13
>Adar because it was one of the happy days of Megilas Ta'anis (Yom Nikanor
>or Yom Turynus). >>

>while this doesn't yet get to the nub of disagreement between myself and
>RYGB re just what exactly ta'anis esther is, and what it may be precedent
>for, i must point out a possible misreading of the sources l'shittoso. To
>wit- since he is convinced (along with the majority of m'foroshim to be
>sure) that 13 adar commemorates not ta'anis esther and mordechai but a
>different tzom associated with the yom q'hiloh (either part of t'khinos
>for rachamim or a fast associated with battle day preparations,
>rashi/tos), all of those m'foroshim learn the line "div'rei hatz'tzomos
>v'za'akosom" as specifically not having to do with ANY of the purim
>events.  Rather the phrase is assumed to refer to the ta'anios m'qabboloh
>that were mentioned in sif'rei tanach, and the p'shat then is that =AD just
>as b'nei yisroel accepted those old special days mentioned in tanach
>(tisha b'av,... etc) so too did they accept the special new simchoh day of
>purim.  Now, this does indeed motzih the p'shat midei simple p'shuto for
>"div'rei hatz'tzomos" but that is the price of trying to avoid identifying
>13 adar with a commemoration of esther's fast. And the m'foroshim do,
>uniformly, bite that bullet.  So should/must? RYGB.

Perhaps I was unclear - the Rambam is ambiguous, but likely does,
indeed, hold that it is the three days of fasting in Shushan are what
is commemorated in TE. Nevertheless, the question of when to make them
up is the issue discussed in Mes. Sofrim, and, I believe, the way the
Rambam understands TE.

>RYGB: <<Furthermore, in Mes. Sofrim 17 & 21 it is noted that the three
>days of Esther must be made up (a la the general convention of Peri'as
>Ta'anios) over the course of three days - so the minhag was to do a BH"B
>after Purim. The Rosh, citing Rabbeinu Tam (Megilla 1:1 and 1:8) holds
>that nevertheless, TE on 13 Adar was a takkana kevu'ah of Chazal even
>prior to bottlo Megillas Ta'anis - I would assume a dormant takkanah that
>generated annual necessity to be porei'ah the ta'anis. >>
>
>incorrect. that is not in fact what m'seches sof'rim says. m'seches
>sof'rim knows absolutely nothing of your chidush that we are porei'oh
>ta'anis and it doesn't talk about "making up" any fasts, those are words
>that you, not the text, have inserted into the flow. it instead gives (2)
>reasons for being qovei'oh the ta'anis post purim well separated from the
>event-date, but the concept of piro'on has nothing to do with it.  I
>repeat, p'rias ta'anis is a concept associated with happenstance ... it
>provides the opportunity to mashlim one's obligation when random
>circumstances of the moment preclude their ordinary discharge in the
>usual, or originally planned, manner  it is simply not appropriate or
>applicable to try to shoehorn a ta'anis qovu'oh that appears on the
>calendar on the same days dor after dor, into this category.  Your chidush
>that "a dormant taqqonoh that generated annual necessity to be porei'ah "
>is quite novel and i'm afraid a rather contorted extrapolation, but it
>just aint so.  I would be amazed if you could find anybody who subscribed
>to such an interpretation as i continue to be amazed that you even argue
>the point.

Since I retain my interpretation, and I believe it is the simple meaning
of the Mes. Sofrim, and the basis of the Rambam, I quote in translation:

Sofrim 17:4
For Purim the three fast days. They are not to be fasted consecutively but
separately: Monday, Thursday and Monday. Our Rabbis in Eretz Yisroel were
accustomed to fast after Purim - because of Nikanor and his friends and
because one delays negative phenomena and does not bring them on earlier.

Sofrim 21:1 essentially repeats part of 17:4. 21:2-3:
And why do we not fast these days in the month of Nissan? Because the
first day of Nissan the Mishkan was erected and the twelve Nesi'im
sacrificed their korbonos each day, one day per shevet, for the next
twelve days, and each shevet made their day a holiday, and in the eventual
future it shall be thus once more, as the Beis Ha'Mikdash will be rebuilt
in Nissan ...

Therefore we do not recite supplications nor fast all the days of Nissan,
nor to we fast until Nissan has passed... except for Ta'anis Bechoros...

We see clearly that the Mes. Sofrim holds that the days of TE are those
ta'ani'os of Pesach, and that preferentially at least one of them should
have taken place on 13 Adar, but does not because of Yom Nikanor. When the
Rambam writes that the minhag has evolved to fast nowadays *on* 13 Adar
and to fast only that one day, he is clearly alluding to the discrepancy
that has developed between MS and common practice - but that is obviously,
from the language of MS that would have preferred 13 Adar as a start
date for the three fasts if not for Megillas Ta'anis and its Yom Nikanor.

As to the status of the three fasts as a pira'on for the three fasts of
Mordechai and Esther, that is evident from the MS search for a day in
Nissan i.e., the immediate BH"B, one would assume, after Pesach - failing
that, it was essential to find an event-date upon which to pin the fasts
(as opposed to a date in Iyar, a la the contemporary Beha"b - one that
would fail both the pira'on standard and the event-date standard - due
to the delay) so 13 Adar would have been ideal (as the first of three).
Because of YN, however, that had to be postponed until post-Purim - when a
quick pira'on is possible. In the absence of MT, we reverted to 13 Adar.
How we get way without three must be explained as an allowance based on
Puk Chazei Mai Amah Dvar.

>this is odd. I note two separate arguments made here. The first that last
>Thursdays in november are not qo'vuoh in the same sense of the same date ...
>27 nisson.   This is odd because the pos'qim who have problems with the
>celebration of thanksgiving precisely because it (perhaps) adds a day to
>the ritual calendar, could have easily avoided that difficulty by glomming
>on to this chidush.  But they did not do so, indicating that they saw this
>chiluq of RYGB as a distinction without a difference. (on the other hand,
>i actually like it.  you see its not true that i reject all of RYGB's
>chidushim. I just think we ought clearly distinguish when we're hearing
>creativity and when we're citing precedent in m'qoros).

I think they mostly reject Thanksgiving on the basis of Chukkos Akkum. Rav
Hutner, however, holds that the fixing of an observance pinned to the
non-Jewish calendar is in and of itself prohibited. I would be interested
in knowing if this kepeidah applies even when the day is linked to the
last Thursday in Nov. as opposed to a specific date on the calendar.

>RYGB's second argument distinguishing Thanksgiving from YhS seems to be
>his conflation of knesset actions with religious legislation, though the
>parameters of this identity are a bit vague. (does he believe the
>existence of a State Religion ... itself a secular legislation ... somehow
>confer a religious dimension to its parliament.  Or does the fact that
>these are (mostly) jews running the country in eretz yisroel confer a kind
>of malchus yisroel status.  These are all defensible positions, but RYGB's
>formlulation "...rules of Judaism cannot be a thing apart from the
>legislation..." are imprecise so i do not know just what he is claiming here).

The latter, not the former, primarily, but the SR sevoro is chazei
l'itstarufei.

>In any event, even were we to grant some kind of synhedronic or malchus
>yisroel status to the knesset, does that mean that ALL their actions are
>in some sense religious.  Can they not execute any secular functions?
>(really, i'm asking l'shittaskhem).   Consider for example the legislation
>of some other kind of day.  Is there an israeli equivalent of Mother's
>Day", or "latino-American History Week" , or even Veteran's Day" or any of
>the myriad special days legislated by the american congress?  If there is
>(perhaps there isn't, i really don't know how you do things over there),
>why should  that be different in principle than legislating a secular YhS
>which calls for no change to the daily religious ritual? (though of course
>missing the awesome emotional resonance).

Yes, all their actions are in a sense religious. No, they have no pure
secular functions - although they may believe that they do, they are
wrong - just as when the Zionist platform emblazoned those fighting
- and heretical - words on its platform: "Davar ein la'Tziyonut im
ha'Dat." All of life is Avodas Hashem and a function of Ratzon Hashem
(recalling Reb Yisroel Salanter's assertion that there is no such thing
as a matter bereft of "milei d'shmaya" issues).

Kol Tuv,
YGB
ygb@aishdas.org      http://www.aishdas.org/rygb

<<RYGB: <<Furthermore, in Mes. Sofrim 17 & 21 it is noted that the three
days of Esther must be made up (a la the general convention of Peri'as
Ta'anios) over the course of three days --....MF: incorrect. that is not
in fact what m'seches sof'rim says. m'seches sof'rim knows absolutely
nothing of your chidush that we are porei'oh ta'anis and it doesn't talk
about "making up" any fasts, those are words that you, not the text,
have inserted into the flow. it instead gives (2) reasons for being
qovei'oh the ta'anis post purim well separated from the event-date, but
the concept of piro'on has nothing to do with it. I repeat, p'rias ta'anis
is a concept associated with happenstance ­ it provides the opportunity
to mashlim one's obligation when random circumstances of the moment
preclude their ordinary discharge in the usual, or originally planned,
manner it is simply not appropriate or applicable to try to shoehorn a
ta'anis qovu'oh that appears on the calendar on the same days dor after
dor, into this category..... RYGB: Since I retain my interpretation,
and I believe it is the simple meaning of the Mes. Sofrim, and the
basis of the Rambam, I quote in translation:

Sofrim 17:4 :For Purim the three fast days. They are not to be fasted
consecutively but separately: Monday, Thursday and Monday. Our Rabbis in
Eretz Yisroel were accustomed to fast after Purim -- because of Nikanor
and his friends and because one delays negative phenomena and does not
bring them on earlier.

Sofrim 21:1 essentially repeats part of 17:4. 21:2-3:
And why do we not fast these days in the month of Nissan? Because the
first day of Nissan the Mishkan was erected and the twelve Nesi'im
sacrificed their korbonos each day, one day per shevet, for the next
twelve days, and each shevet made their day a holiday, and in the eventual
future it shall be thus once more, as the Beis Ha'Mikdash will be rebuilt
in Nissan... We see clearly that the Mes. Sofrim holds that the days
of TE are those ta'ani'os of Pesach, and that preferentially at least
one of them should have taken place on 13 Adar, but does not because of
Yom Nikanor. When the Rambam writes that the minhag has evolved to fast
nowadays on 13 Adar and to fast only that one day, he is clearly.....As
to the status of the three fasts as a pira'on for the three fasts of
Mordechai and Esther, that is evident from the MS search for a day
in Nissan i.e., the immediate BH"B, one would assume, after Pesach --
failing that, it was essential to find an event-date upon which to pin
the fasts (as opposed to a date in Iyar, a la the contemporary Beha"b
-- one that would fail both the pira'on standard and the event-date
standard -- due to the delay) so 13 Adar would have been ideal (as the
first of three). Because of YN, however, that had to be postponed until
post-Purim -- when a quick pira'on is possible. In the absence of MT,
we reverted to 13 Adar. How we get way without three must be explained
as an allowance based on Puk Chazei Mai Amah Dvar.>>

I'm afraid you are still incorrect and continue to read into meseches
sof'rim what is simply not there. i will explain why once again and
then just let the chevra make up their own mind. What is happening in
meseches sof'rim is really quite simple. It is explaining the reasons
behind the establishment of the ta'anis qovuoh commemorating a fast
that esther originally executed in nison, that was instead established
l'doros in adar. The specific reasons (that nison was mishqon time
and then put off till after purim to put off zecher of puronius) don't
really matter. What matters is they had some good reasons and therefore
established the commemoration date away from the event date. But this is
exactly what we set out to prove in the first place. That establishing a
commemoration date could be displaced from an event-date. Case closed. Now
RYGB goes to some length to review the reasons for this shift -- and of
course they did it for a reason -- and this is all ok until he again
extraneously and gratuitously introduces the claim, that this a case
of "piro'on" or "making up" the fast. having a reason to be qovei'oh
something permanently doesn't somehow transmute it into piro'on. It is
not, and repetition does not make it so. "piro'on" is a precise halakhic
concept and it refers to an opportunity to fulfill an obligation while
deviating from the regularly practiced norm -- but the norm itself must
ordinarily be practiced. It does not, and cannot, ever refer to a case
where the "norm" practice itself is forever a piro'on. So a dor achar dor
fast also practiced on the same date(s) can NEVER have the halakhic status
of piro'on. At least not in technical, halakhic usage. I am left shaking
my head at the obstinacy of the refusal to grant this obvious. I can only
close with that immortally plaintive plea issued some generations back by
yet another bewildered observer of yet another yosef. Say it aint so, joe.

<<MF: RYGB's second argument distinguishing Thanksgiving from YhS seems
to be his conflation of knesset actions with religious legislation,
though the parameters of this identity are a bit vague...In any event,
even were we to grant some kind of synhedronic or malchus yisroel status
to the knesset, does that mean that ALL their actions are in some sense
religious. Can they not execute any secular functions? (really, i'm
asking l'shittaskhem). Consider for example the legislation of some
other kind of day. Is there an israeli equivalent of Mother's Day", or
"latino-American History Week", or even Veteran's Day" or any of the
myriad special days legislated by the american congress? If there is
(perhaps there isn't, i really don't know how you do things over there),
why should that be different in principle than legislating a secular
YhS which calls for no change to the daily religious ritual? (though of
course missing the awesome emotional resonance). RYGB:<<Yes, all their
actions are in a sense religious. No, they have no pure secular functions
-- although they may believe that they do, they are wrong -- just as
when the Zionist platform emblazoned those fighting -- and heretical --
words on its platform: "Davar ein la'Tziyonut im ha'Dat." All of life
is Avodas Hashem and a function of Ratzon Hashem (recalling Reb Yisroel
Salanter's assertion that there is no such thing as a matter bereft of
"milei d'shmaya" issues).>>

(My last response here is wholly predicated on the theory that the knesset
legislates other special days, if it doesn't, just skip this part).
As i said, i believe this is a defensible position in theory. But in
practice that still leaves me with my Mother's Day problem. if i were
willing to grant your claim that, in some sense (what exactly?) all of
their legislation is religious, and mother's day like YhS introduces no
change to the religious ritual, then i can only assume that the chilul
hash'shem you perceived in their legislation of YhS must apply equally
well to mother's day. (which not only has an added calendrical day but
the added chisoron of chuqas hag'goyim). So it seems you should also
consider mother's day (or similar israeli knesset designated special
days, if any) to be a chilul hash'shem. Somehow, one is even more hard
pressed to swallow that. mother's of the world, unite in protest.

Mechy Frankel                       W: (703) 588-7424
michaeljfrankel@hotmail.com         H: (301) 593-3949
michael.frankel@osd.mil

I will be very, very brief, as we have each reached the terminus of our 
respective positions:

At 10:27 PM 1/29/02 -0500, Michael Frankel wrote:
...
>"piro'on" is a precise halakhic concept and it refers to an opportunity to 
>fulfill an obligation while deviating from the regularly practiced norm ­ 
>but the norm itself must ordinarily be practiced.    It does not, and 
>cannot, ever refer to a case where the "norm" practice itself is forever a 
>piro'on. So a dor achar dor fast also practiced on the same date(s) can 
>NEVER have the halakhic status of piro'on.  At least not in technical, 
>halakhic usage....

Don't call it "pira'on" if for some reason that irks you. Call it "Fred."
The principle of "Fred" (or any other proper or common noun or verb you
would like) underlies the process. Regardless, there is no other way,
in my opinion, to understand the MS other than the way I have explained
it, and the conclusion is that you have either an event-date, or some
way of pushing off that event-date via Fred - in which case you still
prefer to find an event-date link some other time, barring immediate Fred.

>As i said, i believe this is a defensible position in theory.  But in 
>practice that still leaves me with my Mother's Day problem.  if i were 
>willing to grant your claim that, in some sense (what exactly?) all of 
>their legislation is religious, and mother's day like YhS introduces no 
>change to the religious ritual, then i can only assume that the chilul 
>hash'shem you perceived in their legislation of YhS must apply equally 
>well to mother's day.  (which not only has an added calendrical day but 
>the added chisoron of chuqas hag'goyim). So it seems you should also 
>consider mother's day (or similar  israeli knesset designated special 
>days, if any) to be a chilul hash'shem.  Somehow, one is even more hard 
>pressed to swallow that.  mother's of the world, unite in protest.

Mother's Day would present, in EY, a similar CH.

Kol Tuv,
YGB
ygb@aishdas.org      http://www.aishdas.org/rygb

RGS writes
> The masorah itself is not defective in its transmission of chaseiros and
> yeseiros. Rather, the problem is with the scribes 

Perhaps I shouldnt speak in matters with which I have no idea, but,
pray tell, what is the theoretical "masorah" about which you speak, if
not the masoret sofer mi-yad sofer? If there is a problem with sofrim of
today and of yesterday, can one speak of a "non-defective masorah"? Is
Masorah not just a theoretical construct but a living practice as well?

Yisrael Dubitsky

RY Dubitsky wrote:
>Perhaps I shouldnt speak in matters with which I have no idea, but, pray
>tell, what is the theoretical "masorah" about which you speak, if not the
>masoret sofer mi-yad sofer? If there is a problem with sofrim of today and
>of yesterday, can one speak of a "non-defective masorah"? Is Masorah not
>just a theoretical construct but a living practice as well?

There are good sifrei Torah and excellent sifrei Torah. The Masoretes
beginning in the 8th or 9th century spent a lot of time investigating
and recording the Masorah. While the method of recording it developed
over time and became more complete only in later years, and the various
manuscripts that we have of masoretic notes sometimes conflict (due
largely to faulty transmission), when you decipher each masoretic note
and look at the majority in each case there is a clear consensus on
what the Masorah is - at least in regard to orthography (the letters).
R. Mordechai Breuer wrote a Tanach based on it and discovered that it
matched the Aleppo Codex fairly closely.

Going back to my original case, if we were to assume that there are ten
thousand sifrei Torah in existence and that each sefer Torah has one
mistake in chaseir or yeser out of a possible thousand (theoretically),
there would still be an overwhelming majority consensus on every single
letter. Each individual chaseir/yeser would be mistaken in ten sifrei
Torah and correct in 9,990. Still, each sefer Torah would have a mistake.

Gil Student

RGS writes: << Subject: Re: Lower Criticism We have, in the past,
discussed textual criticism of the Bible and particularly the issue of
chaseiros and yeseiros. See the archives under this title. I came across
an approach that I have not seen quoted in any recent literature so I'll
share it with the chevra. The issue comes up in Kiddushin 30a when the
Gemara says that "vav of Gachon" is the middle of the Torah. Rav Yosef
asks whether it is the end of the first half or the beginning of the
second half (leaving out the possibility that it is precisely in the
middle). The Gemara suggests taking out a sefer Torah and counting. Rav
Yosef answered that we are not experts in chaseiros and yeseiros. The
Magen Avraham (143:7), Binyan Tzion (98), and Noda BiYehuda (2:YD:178)
understand the Rama (OC 143:4) as saying that if a Torah is found to have
a mistake in a chaseir or yeser another Torah is not to be taken out
because <underline>there is a likelihood that the other Torah also has
a mistake in a chaseir or yeser</underline>. In other words, Rav Yosef
was saying that our scribes are not experts in writing Torahs with the
proper chaseiros and yeseiros. The masorah itself is not defective in
its transmission of chaseiros and yeseiros. Rather, the problem is with
the scribes who write Torahs and inadvertently make frequent mistakes
in chaseiros and yeseiros. That is why taking a sefer Torah out and
counting the letters would not solve Rav Yosef's question. The sefer
Torah likely had a mistake in it. >>

That is indeed quite a novel interpretation. but, i do not believe the
mogein avrohom subscribes to it as you claim and would be interested
in a mareh moqom -- i do not read him saying that in OC143. As for the
binyan tzion, i think his formulation is ambiguous. there is another
way to interpret his position and i would not necessarily interpret it
as you have (i.e. that the fault is with the sof'rim rather than the
sofeiq in mesorah).

That does however still leave the nodah biy'hudoh who certainly does
advance this chidush just as you report.

Mechy Frankel                       W: (703) 588-7424
michaeljfrankel@hotmail.com         H: (301) 593-3949
michael.frankel@osd.mil

In a message dated 1/29/02 12:17:40pm EST, Arie Folger afolger@ymail.yu.edu
writes:
> Nu, does Breuer's send around the MA set at seuda 3?

> I think you shouldn't go to the other extreme and see minhagim with
> ibscure sources everywhere. Sometimes poskim may have felt that the
> supposed source for a minhag is strong enoungh that there is no need to
> maintain/enhance the minhag in certain circumstances.

Aruch Hashulchan {AhS} Orcach Chaim 181:5

re: Tosafos dispensing with Mayyim Acharonim:
...Ein Safek...
No doubt Tosafos wrote so in order t ome mlemed ?Zchus on what they did
not do in their days...

-------------------------------------------------------

Comment:  No doubt that is easier and more elegant to say:
The Bavli had a Gzeira on melach Sdomis
Said Gzeira - while nispahset in Bavel - simply was not nispashet in
Ashkenaz and therefore Tosafos is more reporting or documenting that
fact as opposed to apologizing {IOW limud zchus}. Tosafos rationale
addresses more WHY it was not nispashet.

This will also give an alternate ratoinale for Tsoafos re: Clapping and
Stomping on Shabbos.

More later BEH

Regards and Kol Tuv,
RabbiRichWolpoe@aol.com

I wrote:
>> I think you shouldn't go to the other extreme and see minhagim with
>> ibscure sources everywhere. Sometimes poskim may have felt that the
>> supposed source for a minhag is strong enoungh that there is no need to
>> maintain/enhance the minhag in certain circumstances.

RRW replied:
> Comment:  No doubt that is easier and more elegant to say:
> The Bavli had a Gzeira on melach Sdomis
> Said Gzeira - while nispahset in Bavel - simply was not nispashet in
> Ashkenaz and therefore Tosafos is more reporting or documenting that fact
> as opposed to apologizing {IOW limud zchus}.  Tosafos rationale addresses
> more WHY it was not nispashet.

IOW, according to this rationale there is no need in Ashkenaz to ever
be ma'hmir on MA, except when hands are dirty, because the gezeirah,
never having been properly accepted, should not be 'hal outside of the
mela'h Sdomit confines?

Arie Folger

In a message dated 1/24/02 11:15:52pm EST, sba@iprimus.com.au writes:
...
> >>>Did the Oruch Hashulchan specify exactly what it was about that
> Talmud Chacham's psak that he disagreed with? Perhaps it was a svara
> that differs from Rav Moshe's, and perhaps the Oruch Hashulchan might
> actually agree with Rav Moshe?<<<
> 
> Ayin shom and I think you will have no further doubts.

NB: This is the first written source I have found so far expressly stating
that there is a "hidden agenda" for gzeiras and that if the ta'am given
is batel the Gzeira still may stand for other reasons:

See AhS YD 115:6 
..uv'emes...
in Truth this I have recieived: that all Gzeiras Chachachim aside from
the reason reevaled there are many other reasons {kemusim?} that were
not revealed and he that listens will reap a Bracha...

------------------------------------------------------------------------------

BTW: the one loophole that can be used to duck a Gzeira is NOT that
it the reasons is Now batel but rather that it was not nispasheit.
Therefore Tosafos can duck Mayyim Acharonim {no more melach Sdomis}
and stomping and dancing on Shabbas with this reason.

Conversely think of Kitniyyos bizman hazeh.
1) Even if the chesash of mixing it with other grains is no longer
applicable it is still in force for Ashkenazim
2) The Sephardim OTOH need not worry, nor never neede to worry, it was
never their gzeira to begin with.

Of course granted this is a post-Bavli Gzeira so its methodology is a
bit different...

------------------------------------------------------------------------------

Bottom line:
Gzeiros stick even after their rationale has gone away
But
Gzeiros do not apply if they are not nispshet.

And therefore in the aforementioned cases Tosafos is not ducking Gzeira
based upon it being obsolete, just that it never was nispashet in his
communities.

This leaves us with a novel approach to chalav akum HERE in the USA
as opposed to Europe: i.e. Maybe R. Moshe is saying the Gzeira of
Chalav Akkum was not nisphashet here because of the reliability of USDA
supervision and it being an Anan Sahadi. And OTOH if Poland were to
institute such a governmental supervision it's too late to matter THERE.

[Email #2. -mi]

In a message dated 1/27/02 1:50:35pm EST, sba@iprimus.com.au writes:
> And I would suggest that the OH brings the story not so much to prove
> the issur (he doesn't need proof - leshitoso it is a gezero) of CA but
> rather to show 'kamo gedola divrei chachomim" - even if their gezeros
> sometimes don't make sense logically, there is a deeper and higher meaning
> to their decisions. (Remember the gemoro bringing the stories of Mayim
> Rishonin/eating chazir and Mayim achromin/ causing murder, good stories,
> but those are NOT the reasons for MR and MA...)

Leshitascha:
How do you explain Tosafos being meikel about gzeirso such as:
1) mayyim acharonim?
2) clapping and stomping on Shabbos?

[Email #3. -mi]

In a message dated 1/22/02 10:21:29pm EST, Meir.Shinnar@rwjuh.edu writes:
>> A question for Avodah: are these two separate things? If so, how do you
>> determine which is which, and how do they differ?

> I would argue that there is a gradation.
> 1) kulla bishat hadehak
> 2) kulla acceptable by the rov am, given some conditions
> 3) ikkar hadin (even though ruling lekula against some shitot)
> 4) a humra for some
...
> My point was that it seems from the conduct of RMF's family is that he
> viewed it as being the third shitta - it was ikkar hadin (his family
> isn't quite the rov am, and they don't take kulot lightly), and that
> Chalav Yisrael rather than ChC was #4 - something that he took on himself.

In my other posts today I noted that there is another case: A makkom
where Gzeira X was never nispasheit

There is also the case mentioned about tilting an oil lamp which does
not apply to an electric lamp because the mtzius is different

The AhS makes a disticntion between seaslat and mined salt re: Mayyim
Ahcaronim, and in that sense tried to say Tosafos was relying upon the
fact that mined salt would no have melach sdomis -as opposed to sea salt.

----------------------------------------------------

so now say the following:

The AhS is suggests that melach Sdomis was not nispashet in Ashkenaz
because the mtzius of salt was different...

So now let's say {loosely RMF} that gzeras Chalav Akum was never nispashet
in the USA due to the reliablity of the USDA supervision...\

This becomes a metzius question similar to electric lights. so why be
machmir? comare this to growing up wiht an Eruv:
Since those growing up in an eruv will tend not be nizhar in communites
w/o an eruv
So too those that grow up w/o knowing about CA will not be nizhar when
travelling abroad, etc. So comes RMF and is mazhir Yeshiva boys to be
nizhar - probably mostly for chinuch purposes.

----------------------------------------------------------------------------

This is simlar to saying the gzeira of CA is really not applicable to
the USA but for "lo plug" reasons do it anyway.

Regards and Kol Tuv,
RabbiRichWolpoe@aol.com

From: "SBA" <sba@iprimus.com.au>
: However, a milk mashgiach here informs me that he has firm information
: from the authorities that no such check is made in Australia.
: Similar, I have been told, is the case in UK (where treif milk was found
: to have been added to cows milk].

From: Micha Berger <micha@aishdas.org>
> According to their web site, your information about the metzius in the UK
> is incorrect. (I would therefore also double-check what you were told
> about AU).

SBA:
> I now have a copy of a fax from a local firm Dairy Technical Services Ltd
> stating "...This laboratory is unaware of any testing being performed to
> detect the presence of milk from other animals in Cow's milk..."<<<<

SBA (new)
Here is a reply from Dayan Abraham of the LBD:

From: Dayan Abraham
To: SBA
Sent: Wednesday, January 30, 2002 5:40 AM
Subject: Mushrooms & Milk

K'vod Reb Shlomo Boruch,

Further to your email about the Sha'alo of tolaim with mushrooms from
China, I have a fax from Shearis confirming that Reb Elyashiv has been
matir them as the presence of tolaim would be begeder "miut sheaino
motzuy". He did add though that it would be preferable not to stamp the
cans as "mehadrin". At present we're not exactly clear of the chiluk,
but I'll add details when I receive them.
As far as the London Beis Din is concerned, we will be accepting only
the cans of sliced mushrooms but not the whole ones, as the processing
and cutting up process etc. seemed to significantly reduce the incidence
of tolaim.

Benogeah to milk, I checked with one of the experts in the Kashrus
dept. who advised me that while teting and analysis for certain
viruses are carried out regularly, no testing is done on the milk to
ascertain that there is no mixture. However he added two very important
points. Firstly there is no commercially produced cholov tamei at all
in the U.K. meaning that if a farmer would want, for arguments sake,
to milk pigs, he wouldn't have any machinery available at all and
would have to milk by hand which is basically extremely unlikely as
it would be impossible to yield even a small realistically whorthwhile
amount. In other countries, the U.S.A. in particular, the market is so
much larger and the farming techniques on such a large scale that this
is not the case.

Secondly, all the milk is marketed through central marketing boards and
is therefore picked up by one tanker from many farms and the quantity
of each is recorded. This would seemingly make it less feasible to
mix other sorts of milk as it isn't being marketed as it's own label
and brand. Non conformity would likely cause much more of a problem in
such circumstances.

Kol Tuv
Yonason A.
London

[Email #2 from RSBA. -mi]

From: "Gil Student" <gil_student@hotmail.com>
> I am often surprised at the disdain people have for those who do not
> drink strictly Cholov Yisrael. No one on this list, of course, is like
> that but there are those in the community who are.

Let me quote from my first contribution to this discussion:
>>> "Also in the outset let me make clear that I have no problem with
frummer yidden who follow minhag avosom verabosom in consuming cholov
non-yisroel. The problem begins by those whose families WERE makpid
and have decided to ditch this mesorah. Often for these this is the
beginning of the slide."<<<

RGS:
>>>As I wrote a few digests ago, there is a machlokes among the poskim
whether there was a gezeirah against chalav akum or the prohibition is
just a matter of safek issur. Here are some rishonim and early acharonim
who paskened that when there is no chashah of non-kosher milk then chalav
akum is permitted. ...
This is not a complete list of the matirim. On the other hand, there
are plenty of osrim. I am not claiming that the halachah is in favor
of permitting such milk but that there is substantial basis for a minhag
to be matir. <<<<

Of course, of course. No one doubts that there are mattirim and I am
sure that their views are respected and discussed by all serious Poskim.

But as far as I remember, the mekilim in our discussions were relying
on RMF, RYEH and other (yet unnnamed) BIG pre-war American gedolim.

And it was their psokim and reasons that were being analysed.

[Email #3. -mi]

From: "Gil Student" <gil_student@hotmail.com>
> SBA wrote:          RDZ Hoffman z'l, rav of
> >the Adass Yisroel Kehilla in Berlin pre-war, writes in Melamed
> >Leho'il - YD s. 36 - that only 'kalei hadaas' were meikil in CA in
> >Germany..]

> There are two ways to know that this is false.  The first is knowing that
> this remark would be entirely uncharacteristic of RDZ Hoffman. The second
> is looking up the teshuvah and seeing that he said no such thing.

I was quoting from an article in the Torah Journal 'Dvar Hisachdus'
(published by Hisachdus Talmidei Rav Dushinsky) and written by a [usually]
very highly reliable local Tamid Chochom Rav Shimon Opman (who in fact
brought this to my attention).

I will be in touch with him today and get further details. LAD RSO's
record as a lamdan, TC and historian is impeccable and I would be
surprised if what I wrote was less than 100% accurate.

> I would also point out that RDZ Hoffman was more than the rav of kehilla
> in Berlin.  He was the head of the Hildesheimer Institute and a member of
> Agudas Yisroel's Moetzes Gedolei HaTorah.

And therefore...?

Let me assure you Reb Gil, that RSO knows all that (and probably much,
much more) about RDZH. (Ask Reb Seth about him..).

But what would all that have to do with his comment about Cholov Akum?

[Email #4. -mi]

From: RabbiRichWolpoe@aol.com
> sba@iprimus.com.au writes:
>> Did the Oruch Hashulchan specify exactly what it was about that
>> Talmud Chacham's psak that he disagreed with? Perhaps it was a svara
>> that differs from Rav Moshe's, and perhaps the Oruch Hashulchan might
>> actually agree with Rav Moshe?

>> Ayin shom and I think you will have no further doubts.

RRW:
> NB: This is the first written source I have found so far expressly stating
> that there is a "hidden agenda" for gzeiras and that if the ta'am given is
> batel the Gzeira still may stand for other reasons:

> See AhS YD 115:6  ..uv'emes...
> in Truth this I have recieived: that all Gzeiras Chachachim aside from the
> reason reevaled there are many other reasons {kemusim?} that were not
> revealed and he that listens will reap a Bracha...

Just yesterday, a friend who has been following this discussion showed
me the book "Shlucha deRachmono" a biography of Rav S F Mendelowitz z'l
by RA Suraski.

On p.334 he describes RSFM's shiurim in Shaarei Tshuva and how he would
use the shiur to elaborate on various specific topics.

Once when discussing Maacholos Assuros, he took the time to give a
comprehensive explanation on "chomer ho'issur' of Cholov Akum..."shehoyo
porutz beyoser bayomim hoheim beAmerica..."

He told his talmidim that he has a kabolo 'ish mipi ish' from the Sanzer
Rav the Divrei Chaim z'l, who quoted his FIL the Boruch Taam z'l, that
for all issurei derabonon, Chazal had, besides the 'taamim niglim', many
"taamim kemusim" - which are not mentioned at all in Shas.

He did this 'lehotzi sfeikos' of his talmidim who were surprised at the
issur of CA - rationalising that the chances of cholov teme'oh was a
'milsa delo shechicha klall'

Further on he writes that the words of RSFM made a deep impression on
the bochurim - especially when he added that he had seen a copy of the
Tanya [chapter 18] where it states that "afilu kal shebekalim uposhei
yisroel mosrim nafshom al kedushas Hashem" - where the Tzemach Tzedek
z'l had noted in his handwriting: that this refers to "shaar reshoim,
chutz me'ochel chometz bePesach, oy choto beNidah, v'hashoseh cholov
shecholvo Akum...!"

In the notes at the end of the chapter the author refers to the Meshech
Chochmo [P. Bo, dh Hachodesh Hazeh] who writes that he has bekabolo from
the Gr'o z'l that even though Chazal gave taamim [for their gzeiros]
, they still kept hidden thousands of other reasons ['temunim beseser
levovom'].

And  this:
 From sefer Maasei Rav - Minhogei Hagro [os 97]: "...Hu hoyo omer, kol
mah sh'osru Chazal...mipnei eizeh taam, af shebotol hataam hagoluy lonu,
tekanton v'isurom bemekomom omedes..."

We seem to have quite start studded list of names who have this kabolo -
the Gr'o, Boruch Taam, Divrei Chaim, Oruch Hashulchon and RSFM...

[Email #5. -mi]

From: "Gil Student" <gil_student@hotmail.com>
> RSBA wrote:
>>The problem begins by those whose families WERE makpid and have decided to
>>>ditch this mesorah. Often for these this is the beginning of the slide."

RGS:
> Why can't immigrants follow one of the few clear minhagei hamakom?  I
> think all will agree that until relatively recently, everyone in America but
> yechidei segulah drank stam chalav.

WADR how many of the early immigrants remained Shomrei Shabbos? How can
you bring a rayoh from a situation where even those that did keep Shabbos
and the basic mitzvos did so with huge mesiras nefesh. I understand that
even the kosher meat available in many places was quite bedievedig.

In such a situation, for these people, most who were no great TC, and
whose only concern with their milk would have been the possibilty of
cholov tomei and probably had no idea of other reasons for the issur of
CA (as many don't - even today), it is quite understandable that they
were meikel on milk.

But to use this matzav and these people as the basis for the creation of
a new minhag hamokom - against virtually all the poskim and minhogim in
'der alter heim'????

(You wouldn't say that shul's without mechitzos are also minhag America.)

How many poskim were there in Europe (in the past 100-200 years) who
permitted CA in situations where there was no dovor tomeh around and
how many of those who OK'd it in America did so in Europe?

SBA

Shlomo B Abeles

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


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