Avodah Mailing List

Volume 25: Number 189

Tue, 20 May 2008

• 1. Re: Prozbul (kennethgmiller@juno.com)
• 2. Re: haaramah (Richard Wolpoe)
• 3. Re: Haarama (Marty Bluke)
• 4. Re: prozbul & heter iska (Eli Turkel)
• 5. Re: ta'am of eating matza (saul mashbaum)
• 6. Pesach Sheni (Cantor Wolberg)
• 7. Glass (Zev Sero)
• 8. Re: ta'am of eating matza (Zev Sero)
• 9. Asei doche lav and mitzvah haba'ah ba'avererah (Michael Makovi)
• 10. Counting the Omer with a Lamud or a Bais (RallisW@aol.com)
• 11. A Reminder for All of Us (cantorwolberg@cox.net)
• 12. Re: Lying to protect the simple of faith (Michael Makovi)

Someone wrote:
> In an ideal world, we wouldn't have prozbul; the rich would
> lend to the poor without fear of the impending shemitta.

And RRWolberg asked:
> If the above is the case, then why did God legislate it to
> begin with? In other words, the prozbul could have been built
> into the torah.

My favorite answer to this is built on Rabbi Akiva's answer to Turnus
Rufus: Hashem made the world in an incomplete condition, so that people
could improve upon it. He gave us wheat, so that we could make it into
bread. He gave men's bodies an orlah, so that it could be removed. And He
gave us a Torah which is so perfect that it includes ideas and procedures
for improving it with the addition of things like prozbul, muktzeh,
brachos, and others.

Akiva Miller
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On Tue, May 20, 2008 at 6:02 AM, Eli Turkel <eliturkel@gmail.com> wrote:

> >>
> >> In a slightly different vein I have never understood heter iska when
> there
> >> is no business involved, eg taking out a loan to finance a mortgage or a
> car
> >> loan or even to go on vacation. According to this classification is this
> >> still something positive?
> >
> > I think a house - even a primary residence - is usually seen as  an
> > investment - and is in no way comparable to vacation/car [unless the car
> > is for business purposes]
> >
> which means that the bank has a stake in the gain or loss of the house.
> In today's market no small risk
>
>
> --
> Eli Turkel
>

Don't banks factor credit ratings into the mortgage costs?  They certainly
do for Home Equity Loans [helocs]
-- 
Kol Tuv / Best Regards,
RabbiRichWolpoe@Gmail.com
see: http://nishmablog.blogspot.com/
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R' Zev Sero wrote that according to Tosafos pruzbul could work even if
shemitta is even d'oraysa.

This is actually an interesting machlokes rishonim.

The gemara asks on Hillel
"u'mi ika midi d'md'oraysa mshamet shviis v'hiskin Hillel d'lo m'shamta:

How could Hillel create the takana of pruzbul when the torah says that
the loan is canceled?
The gemara answers:
"amar Abaye b'shviis bizman hazeh d'rabbanan"

Abaye answers that pruzbul only works if shemitta is d'rabbanan. The
gemara then asks the reverse question:

How could the chachamim make shemitta derabbanan, min hatorah he has
to pay back the loan? The gemara answers
"Rava amar hefker beis din hefker"

Beis Din has the power min hatorah to take away your money.

The simple reading of the gemara is that pruzbul only works if
shemitta is d'rabbanan. If shemitta is min hatorah they can't do
anything. In fact, this is how the Rambam (Shmitta V'Yovel perek 9)
paskens

The Raavad there argues on the Rambam and has a different
interpretation of the gemara, Rashi also learns like the Raavad.

They explain the gemara as follows. Rava's answer of hefker beis din
hefker answers the original question as well. What is the machlokes
the Rambam and the Raavad? Here are 2 possible explanations:
1. There is a famous machlokes what is the power of hefker beis din
hefker  min hatorah? Is it a) the simple translation of the words that
beis din can declare your property ownerless or is it more then that,
b) they can take your property and give it to someone else.
One case where this comes up is where a man is mekadesh a woman with a
kinyan d'rabban, is she married min hatorah? Kinyanim d'rabban work
based on hefker beis din hefker  if we hold like a, then a kinyan
d'rabbana only works m'drabbanan, min hatorah the woman has not yet
received the money and therefore min hatorah is not yet married.
However, according to b, a kinyan d'rabbana works min hatorah and she
is married min hatorah.

Based on this we can understand the machlokes the Rambam and the
Raavad. The Raavad holds like b, that Beis Din can take from a and
give to b, that is how a pruzbul works, Beis Din takes the money from
the borrower and gives it to the lender before shemitta, therefore
there is no loan for shemitta to cancel. the Rambam on the other hand
holds like a, Beis Din min hatorah can only take away your money but
they cannot give it to me and therefore it doesn't help for shemitta,
by shemitta they need to give you the money and they can't, and
therefore shemitta cancels the loan.

2. How does shemitta cancel a loan? a) Does it cancel the monetary
aspects of the loan or b) does it NOT affect the monetary aspects,
rather it prohibits the lender from collecting. The Rambam holds like
b, it is an issur, therefore hefker beis din hefker is not relevant it
can't be matir issurim, the Raavad on the other hand holds like a, and
therefore hefker beis din hefker can restore the monetary aspects.

<<How did the court rule?  If it ruled against the bank, does the bank
continue to lend on the same terms?  If so it appears that it now
agrees to those terms knowing what they >>

I believe the secular courts ruled in favor of the banks. How we continue
using the same heter iska is a good question

any israeli lawyers in the crowd?

-- 
Eli Turkel

Not fully on topic, but related to the subject of chametz and matza:
I find it surprising and counterintuitive that the Lechem Hapanim  in the
mikdash (always referred to by the Torah, chzal,and the rishomim as
"lechem") is matza. The Rambam in Hilchot T'midim U'Musafin 5:6 says
briefly tht the lechem hapanim is made "challot matzot". The Minchat
Chinuch mitzva 97 ot 8 says explicitly that  the lechem hapanim is "matzot
velo chametz". I have so far been unable to locate the source for this; the
 nosei kelim of the Rambam do not cite any source, and the Frankel Rambam
mafteach does not cite anything on this. I couldn't  find this in the 2
sugyot of lechem hapanim in Menachot 75 and 95. Since the lechem hapanim is
not a korban,  the mizbeach having  no part of it, I don't think that the
issur of chametz in menachot (except for shtei halechem and lachmei toda)
is the reason that the lechem hapanim is matza.
The lechem hapanim was baked in a mold, and could be bent/folded. This is
to me a clear indication that "matza" as chazal understood it was like the
soft, Sfardi matzot of today, not the hard Ashkenazi type. 
Saul Mashbaum
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David Cohen asked: If Mashiach were to come between 14 Nisan and 14  
Iyar, would everybody bring the pesach sheini that year?

I assume you mean "bring the Korban Pesach" on Pesach sheni. Please  
correct me if I'm mistaken.

As I recall, there is a machlokess. The question is asked if Pesach  
Sheni is a continuation of Pesach or is it a separate chag unto itself?
The practical application would refer to a boy who became b"m after  
Pesach and before Pesach Sheni and a ger who converted after Pesach  
and before
Pesach Sheni. IF Pesach Sheni is a continuation of Pesach, then the  
b"m and ger would not bring the K.P. on Pesach Sheni since they were  
not mechuyav
on Pesach. IF Pesach Sheni is its own separate chag, then they would  
be mechuyav to bring the K.P.

So with this resolution, it would seem to me that if Mashiach were to  
come between 14 Nissan and 13 Iyar, then everybody would bring the  
K.P. since none of us
brought it (for obvious reasons) on Pesach (14 Nissan).

K.T.
ri 
  

Shoshana L. Boublil wrote on Areivim:

> What's wrong with buying glass from a goy?  Morally? - nothing. Torah? - 
> nothing. So why make it more difficult to buy glass from a goy by 
> demanding halachically that you have to immerse the keilim (Gezeirat 
> Tu'ma on Zechuchit)?
> 
> We all know the answer - economy.  The Jewish glassmaker's union went to 
> the rabbis and complained that the new imports from (well it wasn't 
> China back then) were damaging their businesses and they couldn't make a 
> living.  So the rabbis Gazru Tu'ma and apparently this was sufficient to 
> help them.

Huh?  First of all, tevilat kelim and tum'ah are two unrelated things.

If tevilat kelim is derabbanan then glass was always included, and if
it's de'oraita then the rabbanan added glass because it can be melted
and reconstituted like metal.

As for the gezera derabbanan that glass kelim can be mekabel tum'ah,
the gemara (Shabbat 15b) says the reason is because it's made from
sand like ceramics.  I can't find any mention of an economic reason
for the gezera.


-- 
Zev Sero               Something has gone seriously awry with this Court's
zev@sero.name          interpretation of the Constitution.
                                                  - Clarence Thomas

saul mashbaum wrote:

> Since the 
> lechem hapanim is not a korban,  the mizbeach having  no part of it, I 
> don't think that the issur of chametz in menachot (except for shtei 
> halechem and lachmei toda) is the reason that the lechem hapanim is
> matza.

The shtei halechem and the lachmei todah are also not brought on the
mizbeach, and yet they are the only listed exceptions to the no-chametz
rule.  Nor are the bikurim of dates brought on the mizbeach, and yet
they are the only exception the Torah makes to the no-honey rule.

A stronger proof is the fact that the lechem hapanim were brought
*every* shabbat, and remained on the shulchan *always*, including
Pesach.

-- 
Zev Sero               Something has gone seriously awry with this Court's
zev@sero.name          interpretation of the Constitution.
                                                  - Clarence Thomas

From the controversy about non-yosher kosher:

I had been said that the non-yosher kosher meat allowing the company
to do tzedaka and chesed, at the cost of mistreatment of workers, was
a mitzvah haba'ah ba'averah.

> : No, that's  not a good argument.  The credit-cancelling effect of mitzvah
> : haba'ah
> : ba'aveirah is fairly narrow.  The same act that is the mitzva act, is also
> : in and of
> : itself an aveirah.  One canonical case is the stolen lulav.  Reuven picks up
> : Shimon's arba minim without asking, and thereby does the mitzvah of waving
> : the lulav, in the same act which is itself taking-without-asking, i.e.
> : theft.
> :
> : R' Jonathan Baker

> If they're the same act, it would be asei docheh lav. Mitzvah haba'ah
> ba'aveirah is where the avirah is a "necessary cause" for this qiyum
> hamitzvah -- the mitzvah wouldn't happen without it.
>
> Thus, eating meat at the Shabbos table, or providing meat for the masses
> at affordable prices, or being a ba'al tzedaqah at money made selling
> such meat did depend on how the workers were treated at the packing
> plant. It may qualify.
>
> R' Micha

Indeed. With R' Jonathan's example of the lulav, the theft is NOT the
same act as the shaking; Shimon steals it now and takes it to shul
tomorrow morning. But as per R' Micha, the theft was indispensable to
the shaking later on.

A question I've had, however: sometimes we have a question of two
mitzvot conflicting. What came to my mind was R' Shlomo Carlebach
shaking hands and hugging for the sake of kiruv. Assuming he is
correct that his kiruv would have failed were it not for this, and
assuming he was correct in what he did (personally, I imagine his
mitzvah is much greater in magnitude than his sin, and AFAIK the
tradeoff WAS worth it), why is it not a mitzvah haba'ah ba'averah?

Similarly, today a friend had a question: a (male) friend of hers had
just broken up with his girlfriend, and he was somewhat inconsolable.
He indicated he needed a hug, and she replied that she is shomer
negiah, but he insisted again. She in the end hugged him, but asked me
what I thought. I replied that if one views it as a case of mitzvah
(shomer negiah) versus averah (negiah), then obviously she did nothing
but a pure averah. But if one views it as one mitzvah (comforting the
sick, needy, distraught, pained, etc.) versus another mitzvah (shomer
negiah), it's suddenly not so clear-cut, and perhaps, based on his
level of neediness, there's a hava amina to permit what she did. But I
later wondered, wouldn't this be a mitzvah haba'ah ba'averah?

Where is the line between mitzvah haba'ah ba'averah, and simply
weighing two mitzvot against each other and trying to figure out which
takes precedence? It is perhaps that in the former, there is an
objective 100% mitzvah versus an objective 100% averah, while in the
latter, there are two mitzvot to be fulfilled, but only one
practically can be, and the averah is that either which way, there is
a mitzvah you are not fulfilling? I'm not sure.

Mikha'el Makovi

 
> Whenever I hear someone count the Omer with a Lamud, I ask, "How do
> you refer to the 33rd day?" The reply always is "Lag B'Omer." I then
> say, "Doesn't this prove that one should count with a Bais?"  >:-}

The Torah Temimah (Mekor Baruch on Tefillah) brings the same proof.

> For the record, years ago I knew a fellow who counted with a Lamud
> and also referred to the 33rd day as Lag L'Omer.

Shibolei Haleket (Hilchos Sefiras HaOmer, 235) calls the day Lag L'Omer.

(Agav, he says that one should say L'Omer, but puts it at the beginning of
the sentence: Hayom L'Omer Yom Echad, and so on.)

I have seen the phrase written as "Sheh-Hayom . . . Lo-Omer.





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The following is an appropriate quote during Sefira and right before 
Lag B'Omer:   The Gerer Rebbe said: "When one learns the Torah, prays much
and begins to think 'I am truly pious: I overlook nothing in the
performance of my mitzvot,' such a person transgresses the mitzvah: "Do not
be seduced by your heart nor led astray by your eyes.' Let such people look
at the Tzitzis and be reminded who they are."

During Sefirah we are obviously in a period of semi-mourning. I must say
that because of a few (fortunately, only a very few) of our colleagues have
sent me very insulting and hurtful comments. Not that they would care, but
this has caused me "mourning."	I'm mourning the sinas chinom which has
persisted throughout the ages and unfortunately doesn't seem to abate. 

I sincerely thank those of you who have offset some of the cruel remarks sent me.  For you the term Rachmonim b'nei Rachmonim truly exists.

Kol tuv.
ri

> Tosafos is a hapax legamenon, and its translation was lost. Chazal used
> comparison to other languages to try to recapture its roots, and got
> "two pairs", ie four. Pulling in another language isn't on anyone's list
> of middos shehatorah nidreshes bahem, but it is a tool used by linguists
> to decode words.
>
> R' Micha

The linguistic analysis of R' Micha is interesting. Rav Hirsch,
however, has a different take:

In volume five of his collected writings, Frankel (or maybe his
follower, whose name I forget) rhetorically asks Rav Hirsch if he'll
trust Chazal's etymology of things like "prozbul" and "totafot". Given
that Rav Hirsch studied some linguistics (both Semitic and classical,
I believe), I'm sure this opponent thought he'd have Rav Hirsch in a
crunch between his faith in Chazal and his secular knowledge.

Rav Hirsch replies very simply that we don't really care if Chazal's
etymology is accurate - it doesn't really matter if "totafot" has any
relation to Afriqi and Kaspi; and while "prozbul" is obviously Greek
and not Aramaic despite Chazal's etymology, we actually don't care.
For really, we are concerned with what the institution of "prozbul"
means to Chazal, not what it means etymologically. So too with
tefillin, we are concerned first and foremost with the halacha (which
isn't disputed), and any etymology is asmachta. So folk etymology is
absolutely fine, and it doesn't trouble us, for halachic/aggadic
meaning is true even if the etymology isn't.

This is all the more interesting, given that Rav Hirsch was very
staunch in his method of Hebrew etymology, and refused to use
comparative linguistics to determine the definitions of Hebrew words
(for they are from heaven and do not originate from Aramaic or
Akkadian or whatnot), except for when the Aramaic corroborates what he
has already derived from Hebrew. (For example, with the division of
Babel, Rav Hirsch goes into a whole analysis of how the division
occurred due to social dissension that caused parties to split up, and
not a giant swat from G-d, he then notes that in the Gemara, peligei
means to argue.)

Mikha'el Makovi


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