Avodah Mailing List

Volume 16 : Number 166

Wednesday, March 22 2006

• Drinking milk which may have been milked on Shabbos (in Israel)
• Re: torah and morality
• Adar hi miliz'oq?
• Musafim kehilchasam
• RE: torah and morality
• Re: Torah and morality
• Re: torah and morality
• Re: Tza'ar Ba'alei Hayyim
• Re: Tza'ar Ba'alei Hayyim
• Re: Tza'ar Ba'alei Hayyim
• Re: Tza'ar Ba'alei Hayyim
• Re: amaleik
• Re: jewish identification
• Re: jewish identification
• Re: amaleik
• Re: Adar hi miliz'oq?

I wrote on Areivim:
> I discussed this with Rav Shinkolevsky (also: no meikil--he even
> forbade a Badatz bakery for some months, as well as recommending
> against a commonly used rabbanut caterer) of Bet Shemesh and Yeshivat
> Shaalvim and he told me that the milk is muttar l'chatchila, and the
> reason not to drink it is simply not to encourage farmers to save the
> milk.
>
> My own addition, based on a quick look-through: even though the
> milkers should have had the milk be destroyed (they milked permissibly
> because of tzaar baalei chayim), the resulting milk is not assur past
> the time b'chdei she'ya'aseh when done b'shogeg; it is pemitted
> immediately when done b'meizid.  See SA OC 318 and MB sk 5.

Further clarification (and IIRC, this is what R. Shinkolevsky told me two
years ago): the issur of food cooked on Shabbos is to the one who
cooked it, and for the one for whom it was cooked, and it is assur
just b'chdei she'ya'aseh if done b'shogeg.  The reason for this is
that the rabbanan wanted to discourage people from doing melachos on
Shabbos.  While it is not lechatchila for the *milker* to milk on
Shabbos, the *consumer* who purchases it after b'chdei she'ya'seh is
not acting bedieved.  In fact, if it is done b'meizid (as is arguably
the case here), the rabbanan were not gozer at all because they knew
that one one for whom the melacha was done is not likely to actually
ask someone to be mechalel Shabbos for him in the future.  (See MB
ibid.)

One could argue that had the rabbanan been around today, they would
have been gozer to forbid the milk, in order to discourage the milkers
from milking.  But the rule is: ein anu gozrin gezeiros me'atzmeinu.
So, at most, it is a midas chasidus not to drink the milk.

Another point: such gezeira wouldn't really work.  All that would
happen is that there would be two milk lines: kosher and "non-kosher,"
and the non-kosher milk would simply sell for less money.  There would
be no inducement for the farmers to throw away the milk.

Kol tuv,
Moshe

"CBK" <fallingstar613@hotmail.com> wrote:
> I asked a similar question to a rav. Regarding the mitzvah that if a
> girl is raped the rapist must marry her or pay her father. It's not bad
> enough that she was raped now she has to live with the guy unless "he"
> opts out.

Huh?  It's not his choice, it's hers (or rather her father's acting in
her place, since she's a minor).

-- 
Zev Sero
zev@sero.name

From: "Danny Schoemann" <>
> After all, AFAIK there's no "ancient" quote of Mishenichnas Adar Marbim
> B'simcho". Rather it's a spin off from the gemora that "Just as when Adar
> enters we increase mourning, so too when Av enters we decrease mourning."

You sure did a 'venahapoch hu' [or is that a 'Ad lo yada'?] on that
one...!

In any case it is a gemoro - Taanis 29a.
Ancient enough...?

> IIRC the original cause for increasing rejoicing starting
> in Adar was the upcoming month of Geula, and pre-dates Purim.

Rashi there writes:
"Mishenichnas Ador.Yemei nissim hoyu leYisroel Purim vePesach".

SBA

>In Avodah V16 #163, RSBA quoted RGD:
> Has anyone ever heard why, "kehilchasam"? What's the hava amina?

I have searched thru many siddurim and seforim.
Very little seems to have been written about this.

But making use of a vort [brought in the Likutei Maharich and elsewhere]
from the Divrei Yecheskel, efsher we can explain both the 'koro'ui' and
'kehilchosom' thus:

Since the churban we have not been able to makriv actual korbonos and have
had to make do with 'Uneshalmo porim sefoseinu' and 'Zos Toras haChatos
[etc] - 'kol Halomed beChatos - ke'ilu hikriv Chatos..'

So what we are davvening for here is that the BHMK be rebuilt [YHR...
shetaleinu besimcho le'artzeinu..veshom naaseh lefonecho korbonos
chovoseinu" - 'temidim kesidrom umusofim kehilchosom' - to bring REAL
korbonos [kehilchosom] - as per the halocho and not simply by 'sefoseinu'
and 'learning about them'. And that explains the 'koro'ui' as well.

KNLAD [or at least until I hear a better pshat...].

Meanwhile the Siddur Hameforosh explains 'Temidim Kesidrom' - the Korban
Tomid - which is always the same, whilst 'Musafim Kehilchosom' - they have
many halachos - because the Korban Musaf for every occasion is different..

SBA

[RCBK:]
I asked a similar question to a rav. Regarding the mitzvah that if a girl is
> raped the rapist must marry her or pay her father. It's not bad enough that
> she was raped now she has to live with the guy unless "he"
> opts out. In response I got an earful about how we, nowadays, have no
> understanding of the importance of virginity.
> My question still stands.

I have no answers but I think this is a classic example of what IIRC R'YBS
called heroic withdrawal(submission) - the example he dealt with IIRC is the
young woman (divorcee) who helped bring a young man back to his yiddishkeit
only for them to find out shortly prior to their marriage that he was a
kohain.

The shchina cries with us but the halacha remains unchanged.

KT
Joel RIch

[RCBK:]
> Regarding the mitzvah that if a
> girl is raped the  rapist must marry her or pay her father. It's not bad
> enough that she was  raped now she has to live with the guy unless "he"
> opts out. In response I  got an earful about how we, nowadays, have no
> understanding of the importance  of virginity.
> My question still stands.<<

It is not the rapist, but the victim, who has the option of marrying
or not.
The rapist must marry her if her father (who presumably has her best
interests at heart) insists on it. This is for her protection; it means
in effect that the rapist must support her for the rest of her life --
very important in a society where a non-virgin may have difficulty
ever getting married, and a single woman is unlikely to be able to
support herself. Remember that the Torah is talking about all societies
at all times, not just the anomalous situation of America where most
girls are not virgins at marriage and most women work for a living.
The whole rape issue was discussed at length on Avodah a few months ago,
you should check the archives.

 -Toby Katz
=============

"CBK"  writes:
>I asked a similar question to a rav. Regarding  the mitzvah that if a
>girl is raped the rapist must marry her or pay her  father. It's not bad
>enough that she was raped now she has to live with  the guy unless "he"
>opts out. In response I got an earful about how we,  nowadays, have no
>understanding of the importance of  virginity.

See Tosefta, Ketubot 3:7-- she can opt out as well. If she refuses,
they are not married.

Mark Dratch

תוספתא  מסכת כתובות (ליברמן) פרק ג הלכה ז  
אחד  האונס ואחד המוציא שם רע שגרשו כופין אותו להחזיר אם 
היו כהנים לוקין ארבעים אחד  האונס ואחד המפתה בין היא בין
 אביה יכולין לעכב שנ' ואם מאן ימאן אביה ואומ' ולו  תהיה 
לאשה מדעתה לו אתה כופה ואי אתה כופה ליבם  

Jacob Farkas <jfarkas@compufar.com> writes:
> Shut Havos Ya'ir 191 concludes that there is no Issur of Tza'ar Ba'alei
> Hayyim when causing pain to a person. The reason given was that the
> Torah was Mapqpid specifically not to hurt animals because they lack
> the capacity to suffer and deal with pain. This is very consistent with
> what RMB has so eloquently explained as to the reasoning for TZBH.

Not necessarily. There is a machloket as to what exactly the Havot
Ya'ir meant:
Teshuvot haRadbaz siman 728 seems to agree with the position, as does
Teshuvot Divrei Malki'el 6:78. However, Rashba I:252 and 257 does not.
And Birkei Yosef, Yoreh De'ah 372 explains that even Havot Ya'ir holds
the TBH applies to humans. Birkei Yosef explains that Havot Ya'ir holds
that Tza'ar Ba'alei Hayyim applies to humans when the pain is inflicted
by others; it does not apply if he brings the pain upon himself (as
in the usual case of perikah). A person's da'at means that he has to
accept the circumstances and bear the pain that he brought on himself
(unlike animals, people can tolerate the pain), but a person is under
no obligation to accept the abuse and pain inflicted by otehrs and
because of TBH, all are obligated to relieve his suffering.

Mark Dratch

[RMDratch:]
> Jacob Farkas jfarkas@compufar.com <mailto:jfarkas@compufar.com> writes:
>     Shut Havos Ya'ir 191 concludes that there is no Issur of Tza'ar Ba'alei
>     Hayyim when causing pain to a person. The reason given was that the
>     Torah was Mapqpid specifically not to hurt animals because they lack the
>     capacity to suffer and deal with pain. This is very consistent with what
>     RMB has so eloquently explained as to the reasoning for TZBH.

> Not necessarily.  There is a machloket as to what exactly the Havot 
> Ya'ir meant:
> Teshuvot haRadbaz siman 728 seems to agree with the position, as does 
> Teshuvot Divrei Malki'el 6:78.  However, Rashba I:252 and 257 does not.  
> And Birkei Yosef, Yoreh De'ah 372 explains that even Havot Ya'ir holds 
> the TBH applies to humans.  Birkei Yosef explains that Havot Ya'ir holds 
> that Tza'ar Ba'alei Hayyim applies to humans when the pain is inflicted 
> by others; it does not apply if he brings the pain upon himself (as in 
> the usual case of perikah).  A person's da'at means that he has to 
> accept the circumstances and bear the pain that he brought on himself 
> (unlike animals, people can tolerate the pain), but a person is under no 
> obligation to accept the abuse and pain inflicted by otehrs and because 
> of TBH, all are obligated to relieve his suffering.

Birkei Yosef doesn't change the Havos Ya'ir's Sevara, he just discusses
a scenario where he suggests that HY would agree that TZBH applies
to people, and he actively rejects the HY ra'ayah from Avel and his
obligation to eat in the Sukkah. [The reasoning of the HY is that even
though Mitztayer is Pottur, that does not apply to an self-actualized
Tza'ar, because the person has the capacity to overcome his own pain
and suffering.]

That the HY does not wish to extend TZBH to people, unlike other
Akharonim, who suggest that people are included MiQal V'Homer is
because he views TZBH as the obligation to intervene and defend an
otherwise defenseless entity. If that entity happens to be a person,
it is by definition not defenseless. You may have many other obligations
to assist that person, Lo Sa'amod al Dam Rei'echo, etc. but it won't be
because of TZBH.

IOW, the HY isn't giving a lesson in animal psychology, he could have
assumed that inasmuch as the animal lacked the capacity to cope, it lacked
the capacity to suffer. He does acknowledge that it has no capacity to
act, and that is why the Torah instructed to act on its behalf. KNLA"D.

Jacob Farkas

jfarkas@compufar.com writes:
> That the HY does not wish  to extend TZBH to people, unlike other 
> Akharonim, who suggest that people  are included MiQal V'Homer is because 
> he views TZBH as the obligation to  intervene and defend an otherwise 
> defenseless entity. If that entity  happens to be a person, it is by 
> definition not defenseless. You may have  many other obligations to 
> assist that person, Lo Sa'amod al Dam Rei'echo,  etc. but it won't be 
> because of TZBH.

> IOW, the HY isn't giving a  lesson in animal psychology, he could have 
> assumed that inasmuch as the  animal lacked the capacity to cope, it 
> lacked the capacity to suffer. He  does acknowledge that it has no 
> capacity to act, and that is why the Torah  instructed to act on its 
> behalf. KNLA"D.

This reading of the HY is KNLA"D, but not that of Teshuvot Keren
L'David no. 18, Teshuvot Mishneh Halachot IV:239, Teshuvot Minhat Elazar
IV:61. See "Sefer "Tza'ar Ba'alei Hayyim" chapter 8 and Sefer "Nefesh
Kol Chai" siman 4. They read the HY as I explained in the previous post.

It appears that there are three prohibitions against harming another:
ona'at devarim, haka'ah and tza'ar ba'alei hayyim. While there are many
cases in which the Torah imposes multiple prohibitions on specific acts,
it has been suggested that the prohibition of ona'at devarim restricts
the infliction of emotional pain, tza'ar ba'alei hayyim proscribes
causing physical pain, and the prohibitions of assault and battery
(pen hakkot) ban the act of hitting itself, even if it causes no pain
or damage. (Teshuvot Be-Tzel ha-Hokhmah IV, no 125, sec. 6) The best
support for this position is that striking another is prohibited and
punishable even if no measurable damage is caused. (Hil. Hovel u-Mazik
5:3; Hoshen Mishpat 420:2) The Torah is concerned about the victim --
a person should never be subjected to an attack by another no matter how
" trivial" it may be -- as well as the perpetrator; a person should not
be cruel or nasty.

Mark Dratch

MSDratch@aol.com wrote:
> jfarkas@compufar.com writes:
>     That the HY does not wish to extend TZBH to people, unlike other
>     Akharonim, who suggest that people are included MiQal V'Homer is because
>     he views TZBH as the obligation to intervene and defend an otherwise
>     defenseless entity. If that entity happens to be a person, it is by
>     definition not defenseless....

>     IOW, the HY isn't giving a lesson in animal psychology, he could have
>     assumed that inasmuch as the animal lacked the capacity to cope, it
>     lacked the capacity to suffer. He does acknowledge that it has no
>     capacity to act, and that is why the Torah instructed to act on its
>     behalf. KNLA"D.

> This reading of the HY is KNLA"D, but not that of Teshuvot Keren L'David 
> no. 18, Teshuvot Mishneh Halachot IV:239, Teshuvot Minhat Elazar IV:61.  
> See "Sefer "Tza'ar Ba'alei Hayyim" chapter 8 and Sefer "Nefesh Kol Chai" 
> siman 4.  They read the HY as I explained in the previous post.

R' Dratch, I really appreciate the Mar'eh m'Komos. The Keren L'Dovid and
the Mishneh Halachos don't suggest that the HY himself acknowledges the
Hiluq between self-actualized Tz'ar and deliberately inflicting Tz'ar.
They are suggesting that they themselves don't apply the HY reasoning
when it comes to actively inflicting pain on people, and in their opinion,
the Issur of TZBH would still apply.

The Minhas Elozor does suggest reading it into the HY, however he does
offer 3 alternative explanations that would resolve the HY.

> It appears that there are three prohibitions against harming another: 
> ona'at devarim, haka'ah and tza'ar ba'alei hayyim.  While there are many 
> cases in which the Torah imposes multiple prohibitions on specific acts, 
> it has been suggested that the prohibition of /onaג€™at devarim /restricts 
> the infliction of emotional pain, /tzaג€™ar baג€™alei hayyim /proscribes 
> causing physical pain, and the prohibitions of assault and battery (/pen 
> hakkot/) ban the act of hitting itself, even if it causes no pain or 
> damage. (/Teshuvot Be-Tzel ha-Hokhmah /IV, no 125, sec. 6)  The best 
> support for this position is that striking another is prohibited and 
> punishable even if no measurable damage is caused. (/Hil.  Hovel u-Mazik 
> /5:3; /Hoshen Mishpat /420:2)  The Torah is concerned about the victimג€”a 
> person should never be subjected to an attack by another no matter how 
> ג€œtrivialג€ it may beג€”as well as the perpetrator; a person should not be 
> cruel or nasty.

I agree. The acts of the perpetrator are morally repugnant independent
of the victim's pain and suffering. I think that was RMB's point:
> ...Yes, I'm suggesting that even when an animal is in pain or emotional
> distress, there is "no one there" to suffer. However, since the experience
> to us is the same as if there were, we can not act cruelly based on this
> theoretical knowledge. We would grow callous.

> Gittin 57b and Sanhedrin 96b have a famous aggadita that says that
> Haman's descendents were rabbeim in Benei Beraq.

Not really a Ra'ayah, for 2 reasons.

It is possible that a woman had a child [bein be'ones bein b'ratzon] 
with a member of Haman's family. This child would be Jewish and 
technically BB of Haman. This child would be Muttar Lavo B'kahal 
L'khatkhila.

BB of Haman could have "intermarried" with other nations, and their 
offspring would be non-Amalek.

> See also Rambam, Hilkhos Melakhim 6:1-4.

See the Kessef Mishnah in Halakha 4 where he specifically says that upon
condition of acceptance of the 7 Mitzvos D'Bnei Noah they are no longer
Bikhlal Amalek. Pretty strong case that the Rambam does not pasken like
the Mekhilta.

...
> As there seems to be no dispute about geirei toshav, I took the TE's
> position on it for granted.

> On a different note, despite RJF's suggestion here on Avodah, Sha'ul
> haMelekh's problem with the mitzvah was not its incomprehensibility. But
> rather, that he lacked the belief in himself to stand up to the will
> of the masses. See Shemu'el haNevi's rebuke at Shemu'el I 15:17. (You
> might also be interest in my blog entry "Anavah, Simcha, and Purim
> <http://www.aishdas.org/asp/2006/03/anavah-simcha-and-purim.shtml>.)
> Based on his more recent comment on the blog entry, I believe RJF agrees.

While I now agree that Sha'ul himself may have had no personal issue with
Mehiyas Amalek as per the Tzivuy, it is worth noting that a significant
portion of Klal Yisroel did have the issue, otherwise there would not
have been the political pressure.

Jacob Farkas

On Mar 21, 2006, at 8:05 AM -0600GMT, M' Lisa Liel wrote:
> in response to R' Micha Berger:
>> And who were the leaders of the battle against Zoroastranism in
>> Persia? Ironically, it was the Arians!

> Well... strictly speaking, the Persians were an Aryan people, so both
> sides really were, but yes, that was probably our first major run-in
> with them.

First major run-in with that *name*, not actually the same people.

On the history of the term _aryan_, see:
<http://www.bartleby.com/61/99/A0449900.html>

-Stephen (Steg) Belsky
  "houses, fields and vineyards hold people back."
      ~ r' david qimhhi

On Wed, Mar 22, 2006 at 11:33:52AM -0500, Steg Belsky wrote:
: >Well... strictly speaking, the Persians were an Aryan people, so both
: >sides really were, but yes, that was probably our first major run-in
: >with them.

: First major run-in with that *name*, not actually the same people.

You mean like Haman haAGAGI?

-mi

[Micha:]
> On a different note, despite RJF's suggestion here on Avodah, Sha'ul
> haMelekh's problem with the mitzvah was not its incomprehensibility. But
> rather, that he lacked the belief in himself to stand up to the will
> of the masses. See Shemu'el haNevi's rebuke at Shemu'el I 15:17. (You
> might also be interest in my blog entry "Anavah, Simcha, and Purim
> <http://www.aishdas.org/asp/2006/03/anavah-simcha-and-purim.shtml>.)
> Based on his more recent comment on the blog entry, I believe RJF agrees.

The Gemoro in Yoma 22b says a Drasha on the Pasuk V'Yorev B'Nahal [Shmuel
I 16:5] which suggests that Sha'ul himself had concerns about the Tzivuy
as well. Sha'ul is quoted as saying "...V'Im Adam Hatah B'heimah Ma
Hatah V'Im Gedolim Hat'u K'Tanim Mah Hat'u..."

Although this may have been his seeking to justify the popular demand
by way of finding a Hetter within the Tzivuy.

Jacob Farkas

On 3/22/06, SBA <sba@sba2.com> wrote:
> From: "Danny Schoemann" <>
> After all, AFAIK there's no "ancient" quote of Mishenichnas Adar Marbim
> B'simcho". Rather it's a spin off from the gemora that "Just as when Adar
> enters we increase mourning, so too when Av enters we decrease mourning."

> You sure did a 'venahapoch hu' [or is that a 'Ad lo yada'?]
> on that one...!

Oops.

> In any case it is a gemoro - Taanis 29a.
(Last line if you want to find it quickly)

> Ancient enough...?

Precisely my point: It doesn't say "Mishenichnas Adar", but "K'shem
K'SheMishenichnas Adar" - IOW it's not a standalone Adar phrase, but an
Av phrase.

>> IIRC the original cause for increasing rejoicing starting
>> in Adar was the upcoming month of Geula, and pre-dates Purim.

> Rashi there writes:
> "Mishenichnas Ador.Yemei nissim hoyu leYisroel Purim vePesach".

Thus my assertion that it pre-dates Purim.

- Danny

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


[ Distributed to the Avodah mailing list, digested version.                   ]
[ To post: mail to avodah@aishdas.org                                         ]
[ For back issues: mail "get avodah-digest vXX.nYYY" to majordomo@aishdas.org ]
[ or, the archive can be found at http://www.aishdas.org/avodah/              ]
[ For general requests: mail the word "help" to majordomo@aishdas.org         ]