Avodah Mailing List

Volume 25: Number 244

Mon, 07 Jul 2008

• 1. Re: Zekhiras Yetzi'as Mitzrayim in Yemos haMashiach (Yitzhak Grossman)
• 2. Re: Halachic Texts: More Background (Richard Wolpoe)
• 3. Re: Halachic Texts: More Background (Rich, Joel)
• 4. Re: T'uM (Zev Sero)
• 5. RYShapira on the spread of secularism (Micha Berger)
• 6. Re: Halachic Texts: More Background (Richard Wolpoe)

On Thu, 03 Jul 2008 10:57:05 -0400
Zev Sero <zev@sero.name> wrote:

> David E Cohen wrote:
> > R' Micha Berger wrote:
> >> We follow ben Zoma's derashah for "KOL yemei chayekha". By saying there
> >> is a chiyuv bizman hazeh at night, we rejected the Chakhamim's derashah
> >> of "lehavi liymos hammoshiach".
> 
> > We do hold like Ben Zoma regarding zekhiras yetzi'as Mitzrayim at night
> 
> No, we do not!  Yachid verabim halacha kerabim, and I'm not aware of
> anything to indicate that this is an exception.  *Nobody* disputes that

Your certainty is misplaced; there seems to be considerable dispute
among the Aharonim about this.

While Zelah (Brachos 12b s.v. Mazkirin) explains that there is indeed
no disagreement over the obligation to mention YM at night, he
concedes that Bartenura understood that there is a Mahlokes, and that
Hachamim maintain that there's no obligation.  

The Frankel Sefer Ha'Mafteah (Krias Shma 1:3 on Lehem Mishneh s.v.
B'ben Zoma) states that Rashbaz and Abarbanel in their commentaries
to the Haggadah also understand like RZS, that Rambam is ruling in
accordance with Hachamim, and that even they agree to the existence
of the obligation to mention YM at night.

On the other hand, Sha'agas Aryeh (#12) says exactly what RDC says,
that the Halachah is like Ben Zoma. Even though normally we say that
Stam v'ahar kach mahlokes ein Halachah k'stam, here the Halachah does
follow Ben Zoma, since the Stam Gemara (in Perek Hayah Koreh) follows
him.

Minhas Hinuch's language is:
"Even though 'lechorah' Hachamim disagree [about the obligation to
mention YM at night], most Poskim, including Rambam, rule according to
Ben Zoma, that there is a commandment to mention YM at night."

This is like Sha'agas Aryeh and RDC.

For more information, Cf. the Frankel's entry to the Rambam in question
s.v. Ha d'pasak k'Ben Zoma.

> we say yetziat mitzrayim at night; there's no svara at all *not* to say
> it.  The mishna gives it as an undisputed statement.  The machloket
> between Ben Zoma and the Chachamim is only about yemot hamashiach, and
> we follow the majority, that we *will* say it.
> 
> -- 
> Zev Sero               Something has gone seriously awry with this Court's

Good Shabbos,
Yitzhak
--
Bein Din Ledin - bdl.freehostia.com
An advanced discussion of Hoshen Mishpat

On Fri, Jul 4, 2008 at 2:04 PM, Rich, Joel <JRich@sibson.com> wrote:

>
> So let's go back further. Who decided on general klalim of psak(e.g. R'
> Judah versus Rabbi Meir and Rabbi Shimon).  Why weren't these on a case by
> case basis?
> KT
> Joel Rich
>
>
Thsi is long, so beware!


Most Klalei p'saq were created by Babylonian Ga'onim
I don't mean to get overly "Wissenshafty" here but I am convinced that -
like many things in hisotry - something created for ONE purpose morphed into
anonther [or well else is new!]

What do I mean?

AISI, the Bavli was a first rate Encyclopaedic resource for Torah Sheb'al
Peh. [TSBP]
But it morphed.  The Saboraim and the bGa'onim - for whatever reason -
decided to make the Bavli into a Code like a Shulchan Aruch.  They
apparently gave the BeHaG a really hard time for trying to make a spearate
Halachah sefer -and that might gor for Sh'iltos, too.

Aat any rate, IN BAVEL, works like the Sh'iltos. Halchos Gedolos, Halachos
P'sukkos were pretty much ignored.  People not only STUDIED bavli - they
lived it. There was a vialbe Beis Midrash constaining all the collective
Talmudic data and wisdom

But in Europe,[and probably in North Africa] those 2ndary sources became
primary texts.  The Bavli - imho - never really succeed as a "CODE" because
the Rif, Rambam, Tur et. al. felt the need to compose other codes.  The
Rambam's hakdamah probably gives you the aboslute necesity for writing a
code outside the Talmud.  The Talmud was really a closed book in many ways.

Rashi and Tsoafos re-opened it to a great extent- that is another matter.
The klalei p'saq are so widely ignored at times it is  difficult to apply.
Example, Rav & Shmuel Halacha keRav be'issurim, But Kiddush bimkom s'udah
Halach KiShmuel. {I know why but I will not digress]

My point is that the rules themselves need rules to know how to apply the
rules in the first place.

There are consistent schools of p'sq tht DO work.  And the one that really
comes to mind most often is simply consensus.  It works from Tanur Achinai
right down to 3 matzos at the seder.  It simply works consistently across
the board.  I have asked two prominent RAbbonim in Teaneeck and they BOTH
gave me that is their primary method for Halachic decision making. It might
take months but I can prove to you that the Beis Yosef and the Rema BOTH
used this method and were givenoverwhelming approval for following it.

The resistors [rebels?] included Bach, Meharshal and others who were pretty
much out of hte main stream.  The problem I have is that Masorti use the
Meharshal as their "mentor" to manufacture brand new Halacha from the Talmud
and to ignore Posqim.  That is one of my MAIN problems with that
methodology, it is a slippery slope open to high levels of abuse. Most RWO
who DO defend it say you nee to be a 'bar hachi" to do this - so that The
GRA, RMF, the Meharshal are allowed but not others.  Im kein nasatta
devorecha leshi'uirim. You can then surrender ALL hope of any obejctive
Halachic system and have different sets of trules for different levels of
Posqim and if you are a real genius you nene not follow ANY precedent.  This
goes squarely against the thrust of Tanur Achinai where Rabbi E.lizer
hagadol's Gadlus was humbled by the lesser lights [sheds of Liiliput?] who
claimed that nimnu v'gamru trumps genius and ruach haqodesh.

There are some other methods that sort of work, too. E.g Minhag Avos or
Minhag hamaqom. So evern though the VAST majority of communites do not bury
on 2nd Day of YT [with or w/o relying upon RMF in IM] the fact isthat Satmar
and Breuer's still follows minhag Avos and DO bury on YT sheini.   So a
longstanding continuous precedent is not always uprooted by consensus,
rather it gets grandfathered in despite conesnsus.

Thus when Teimanim accepted Rambam, [I Have been informed that] they
maintained about 40+ exexmptions. IOW they granfathered in some Minhag
Avos.  Simlarly when Medieval Asheknaz accepted Bavli they grnadfathere in
many of their practices,, too.  The Ba'alei Tosafos preserved those
traditions.

Later on, it morphed again. once Bavli became Supreme, the Grandfathered
Minhaggim came under attack.  But I can bet that in Teiman they did NOT
surrender their grandfathered Minhaggim.  The difference is that in Ashkenaz
it split.  for the most part, Eastern Europeans were only too happy to come
up with the newest and latest version of litrugy, etc.  The Western
Europeans and Obberlander Hungarians stood firm on Minhag Avos and - by and
large - did not accept "hiddush" as anything but shinuy if itmeant
overthrowing longstanding Minhag Avos.  Aruch Hashulchan is one of the
excpetional Litvaks that allied hismelf more with Minhag Avos.

Eastern Europeans who were under the sway of the Gra, Mussar, Hassidsus or
Qabbalah had little resistance to chagne. Even Hassidim from Wien and
Oberland di nto abandon Nusach Ashkenaz.  If you are not a Yekke or Duth or
Oberland, you probably do not get this.

Students in Litvisher Yeshivos come back t oBreuer's and many cannto fathomm
how it follows nusach knegged teh Mishna Brurah. This is not a Halachic
shortcoming, just a pedagogical one. People are not trained to understand
how that can work.

FWIW, I noted before, A main Temani Haggadah [The name slips my memory]
objected strongly to RY Karo's SA schnging the Teimani Minhag and they
endorsed the Rema's steadfastness in resistance this "steamrller" effect. By
and large, medieval ASheknz was hihgly respectful of Minhag Hamakom and a
Jew from say Magnenza did not dare to impose his Minhag in say Fuerth.  They
all knew better.

The Rambam, et.al. was very much into imposing his version on other
communitie. He felt that his read of TSBP in general and Bavli in particular
was superiror and therefore he had little problem in telling others to
change. But see the Haqdkama of BY for a different approach.


-- 
Kol Tuv / Best Regards,
RabbiRichWolpoe@Gmail.com
see: http://nishmablog.blogspot.com/
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There are consistent schools of p'sq tht DO work.  And the one that
really comes to mind most often is simply consensus.  It works from
Tanur Achinai right down to 3 matzos at the seder.  It simply works
consistently across the board.  I have asked two prominent RAbbonim in
Teaneeck and they BOTH gave me that is their primary method for Halachic
decision making.  
==========================================
 
   But that still begs the question, consensus based on what? If in the
end it's lev shel torah you have the same consistency issue you
mentioned earlier as well as the classic who gets a vote issue.  Is it
almost a gzeirat hakatuv that all votes on the sanhedrin were equal  or
is that the model and if so then how do we now determine to 70/1????
 
KT
Joel Rich
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Chana Luntz wrote:
> RZS then wrote:
>> RMB wrotes:

>>> Wouldn't they be angry about not getting as much forewarning as the 
>>> store could have risked?

>> But did Avi have the right to give such warning?  Presumably 
>> at that point he still thought he had a chance of turning his 
>> business around.

> Under English law, for example, there is a concept of wrongful trading -
> under which a company director can be sued for continuing to trade when
> he should not have done
> [...]    Directors may only be liable where at some
> time before the commencement of the winding up of the company, they knew
> or ought to have concluded that there was no reasonable prospect that
> the company would avoid going into insolvent liquidation."

Exactly.  Once they know that it's a lost cause they must stop trading.
But by the same token, *until* they know that, while they still think
there's a chance they can turn the business around, they must *not*
stop trading, because that would be unfair to their existing creditors.


> Whether under the law Avi was required to
> cease trading earlier than he did and hence not put M&B into difficulty,
> would be, inter alia, a judgement for the secular courts, as to whether
> his judgement not to do so was reasonable.

I think it must be presumed that, whether or not it was objectively
reasonable, he was acting in good faith; if he had already concluded
there was no hope, why would he have continued to put time and effort
into running it?   Why would he not have closed it a week earlier and
saved himself the work, not to mention the agmas nefesh?

It must be borne in mind, by the way, that entrepreneurs are by nature
optimistic -- pessimists never go into business in the first place --
so his judgment may have been impaired compared to that of an average
person.  I think (and I don't know how the courts, either in the USA
or the UK have dealt with this) that the standard used in any trial
must be, not the judgement of the proverbial Man on the Clapham Omnibus,
but that of the ordinary small businessman.  (See the first chapter of
A.P. Herbert's _Uncommon Law_.)   Thus, even if a court eventually
concludes that legally he owes the money, this should not be taken as
proof that he did a moral wrong; at worst he made an error of judgment,
and was more optimistic than an average person would have been.

 
>> Because dinei momonos depend on the intentions of the people 
>> involved; if they're doing business on the basis of secular 
>> law, or merchant law, then that becomes the din.  If they all 
>> agree that the corporation exists, then it does. 

> This is less clear, however.
> 
> Firstly, it is hard to think of case that more closely matches that of
> the gemora definition of asmachta than of people lending to or doing
> business with a limited corporation in circumstances where what they see
> is the owner of a business.  People (especially small time individuals)
> don't believe the person they are going to lend to or do business with
> is going to go under and they don't really think about the limited
> liability nature of the person with whom they are doing business in a
> transaction of the kind that RMB is describing.

The laws of asmachta are in general unclear to me, but it seems to me
that this can't be right.  You're saying that M&B have an asmachta,
that if they had thought there was a real chance of Avi's company
going under they would never have sold to it, and thus he should pay
them for the shirts they delivered to it.  But surely if he could say
the same thing -- had he known his efforts to turn it around would be
unsuccessful he would never have ordered the shirts in the first place;
he certainly had no need of them for his own use, and indeed he hasn't
got them -- they're in the hands of the liquidator.  So why should he
pay for them?  Surely he has an asmachta too!

What's more, is asmachta *ever* used to make someone pay money that
is now in his possession?  I have a vague notion that perhaps it's only
used to get someone out of an obligation to pay.


> In addition, the concept of a limited liability corporation depends on
> it having legal personality and existence.  If the halacha really does
> not recognise that person as a legal person, the fact that the secular
> law does would not necessarily seem to get the underlying "mind" off the
> hook. There is a concept in secular law of "piercing the corporate veil"
> where in certain circumstances (usually fraud), the courts will look
> beneath the corporate entity to the directors behind it.  It does not
> seem to me to be so straightforward that the halacha, while recognising
> the customs of business between parties, will necessarily take the leap
> and recognise the concept of independent legal personality that
> underpins a corporation, and therefore would not require a piercing of
> the corporate veil in all cases.

I don't think it matters whether the LLC has a "real" existence under
halacha.  Secular law must speak of a corporate veil and of piercing it
(which AFAIK is only ever done in the case of bad faith), because in
secular law a company really is a separate person.  What I'm proposing
is not that because the law recognises it therefore the halacha does,
but that because the parties to the transaction have all agreed to
*pretend* that the company exists, and to act *as if* it exists, then
the halacha joins in that pretense.  IOW having agreed to the rules of
the game, they can't stop playing when it becomes inconvenient to them;
the other parties have the right to expect that they will keep playing.
When M&B Shirts Pty Ltd delivered the shirts to Avi's shop rather than
his home, and addressed the invoice to Avi Enterprises Pty Ltd instead
of to Mr Avraham Ben-Terach, they agreed that they would pretend Avi
himself had nothing to do with the transaction; they can't now expect
him to pay.  And I contend that this is so *even if* the halacha
regards the entire thing as a sham, and continues to hold Avi
personally responsible for the chametz owned by his company, and for
the Shabbat work that is done by his company, etc.

Take another example: fiat money.  All of our money today, notes as
well as coins, gets its value only from the fact that the law says it
has value, and we all agree to pretend that it does.  There is a
discussion in halacha (I recall seeing a teshuva on this from the
Chasam Sofer) over whether such money can be used for kiddushin,
pidyon haben, chilul maaser sheni, etc., and various distinctions
that can be drawn between these different purposes.  But let's take
the most machmir opinion, and say that fiat money is completely
worthless al pi halacha, chaspa be'alma; even that opinion would
agree that it's valid for paying debts, that if Avi had paid M&B
with the local currency he would no longer owe them anything, even
if they demanded payment in silver, and even if the next day the
currency collapsed into worthlessness.  Because those are the terms
on which people do business, unless they explicitly specify otherwise.


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

This somewhat addresses a question I asked R' Mikha'el Mikhovi about
R' Kook and post-Zionism. I do believe RYS here is actually giving a
derivative of RAYK's view reflecting subsequent events, not RAYK's shitah
unadulterated. But interesting -- particularly to those of us who are
looking at the belief of "reishit tzemichat ge'ulateinu" from the outside
and yet want to better understand someone else's shitah.

-micha

-- Forwarded message from Shabbat BeShabbato <shabbat.beshabbato@gmail.com> --
Date: Mon, 7 Jul 2008 14:34:30 +0300
Subject: Shabbat-B'Shabbato -- Parshat Balak
...
        No 1230: 9 Tammuz 5768 (12 July 2008)
...
TO SEE G-D'S GOODNESS
The Increase of Secularity as Redemption Approaches-
by Rabbi Yehoshua Shapira, Rosh Yeshivat Ramat Gan

Question: It is clear to all that we are very close to the time of
final redemption. But if this is so, why is it that in our generation
the secular approach has become so widespread that it encompasses the
majority of the nation of Yisrael?

Answer: In order to reply to this deep question, it is first important
to delve into the concept of redemption in which we have been involved
for so many years. Is this a process of atonement for a specific sin for
which we have not yet been fully punished? This seems to be the most
widely accepted approach, as we say in the Mussaf prayer: "Because of
our sins, we were exiled from our land." This is also what Moshe seemed
to think, when he asked the Almighty, "Why did you do bad things to this
nation?" [Shemot 5:22]. As the Midrash explains, "What did this nation
do that led them to be so oppressed for all these past generations?"

Moshe asked another question, and it is the one that we asked above. "From
the time that I came to Pharaoh... he did evil things to this nation"
[5:23]. As the Midrash explains, "Your name is great, powerful, and
awesome, and the whole world is afraid of You, how could the evil Pharaoh
hear You and purposefully disobey?" Why does the exile become stronger
and reach its greatest depths just when the sparks of redemption begin to
appear? The Almighty replies, "Now you will see what I will do to Pharaoh"
[6:1]. Just at this point in time, when heresy is at its greatest,
is the moment of redemption and freedom.

One of the early great masters of Chabad, Rabbi Hillel from Faritch,
explains this by a wonderful parable about a rabbi and a student who are
very close to each other. The student's entire life is bound up in the
words of the rabbi, and the rabbi only feels that his life is worthwhile
when he is teaching his student. One time they sat with words of Torah
flowing between them, when the student suddenly felt that his rabbi was
moving farther away from him. The rabbi stuttered, his eyes were distant,
and he seemed to have something else on his mind. The situation became
worse minute by minute, until the rabbi fell silent and closed his
eyes. There was a complete loss of contact, utter silence! The student
did not know what to do, without his rabbi's Torah there was nothing
left to live for. He thought back over his own actions searching for
the reason for what had happened, he repented, but it was all to no
avail. Day after day he looked at his rabbi hoping that he would once
again speak to him, but he did not return to him for a very long time.

In all of this, the student had one ray of hope: He looked at his rabbi
and saw that the rabbi's face was lit up like that of a man who has come
across a new and wonderful idea and who is thoroughly enjoying it. When
the student saw this, he understood that the separation was temporary and
was really for his benefit. While they were studying his rabbi had come
across a new idea, something much wiser than anything he had taught the
student in the past, and in order not to lose the train of thought he
concentrated all of his attention on the new idea. The rabbi knew that
the student would hold on, and that his inner faith in the strong bond
between them was greater than the false picture of separation.

According to Rabbi Hillel, the time in the parable when the rabbi and
the student got along so well can be compared to the era when the Temple
stood in Jerusalem. The time of confusion and consternation is the time
when the fires burned the walls of the Temple, and the evil conquerors
entered the area, cursing and blaspheming. What did they find in the
Temple? According to the Talmud, "When the Gentiles entered the sanctuary
they saw the Keruvim intertwined with each other." Isn't it amazing that
at such a moment of Divine anger the Keruvim faced each other, like the
times when Bnei Yisrael were fulfilling the will of G-d? The answer is
that the parable explains this, because the true innermost meaning of the
exile is nothing more than pure love. From this point on the situation
gets worse and worse ? the Tana'im, the Amora'im, the geonim, early
and later commentators, and our own generation... the enlightenment,
secularism, Gentile culture, and sinful approaches that devour our very
existence. During the entire time in the parable that the new lesson
is taking shape in the mind of the rabbi, he moves further and further
away from his disciple. But the time of the worst separation is when we
can eagerly await the coming of the Mashiach.

What does the lit face of the rabbi mean? This is the time when we begin
to discover the results of separation: secularism reveals the depth of
G-d's demand which lies behind the Divine anger that has shattered old
tools and destroyed all that seemed good. Many new benches are added
to the Beit Midrash, and the new occupants raise it up, adding true
innovation to the Torah -- the innovation of redemption.
...

SHABBAT-ZOMET is an extract from SHABBAT-B'SHABBATO, a weekly bulletin
distributed free of charge in hundreds of synagogues in Israel. It is
published by the Zomet Institute of Alon Shevut, Israel, under the auspices
of the National Religious Party.

    Translated by: Moshe Goldberg

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Shabbat BeShabbato". Contact dan@zomet.org about any problems or comments.
    Visit the Zomet Institute web site: http://www.zomet.org.il
Contact Zomet with comments about this bulletin or questions on the
link between modern technology and halacha at: zomet@netvision.net.il
Or: Phone: +972-2-9931442; FAX: +972-2-9931889 (Attention: Dan Marans)

On Fri, Jul 4, 2008 at 5:43 PM, Rich, Joel <JRich@sibson.com> wrote:

>
> ==========================================
>
>    But that still begs the question, consensus based on what? If in the end
> it's lev shel torah you have the same consistency issue you mentioned
> earlier as well as the classic who gets a vote issue.  Is it almost a
> gzeirat hakatuv that all votes on the sanhedrin were equal  or is that the
> model and if so then how do we now determine to 70/1????
>
> KT
> Joel Rich
>

Of course you are correct. But let's try this on for size.
RYBS once showed that eino ra'uy l'achilas kelev is not a LAB experiment
[with a black lab or a chocolate lab] but it is the estiamte of what the
POSEIK sees as eino Ra'uy.

Thus the Beis yosef says : hey the minhg is 3 matzos. Schoen!
Adn the kaf hachayyim points out that the Shleah says thsi is the ONLY way
to be yotzei lechol hadei'os then he brings the GRA who says the Rosh is
wrong becuase the Talmud is cearly agaisnt him.

Finally the Kaf hachayyim says: But ALL the ACHARONIM say 3. IOW
notwithstanding the GRA, the consensus [ overwhelmingly btw] is 3. Period

Niether the BY nor the KhCH try to say the halacha is like the most
philogically correct red of the Talmud. It is by the consensus of posqim AS
THEY PERCEIVE IT.

I have a real problem with the Sha'r Hatziyyum on the matter of betziztzi
[sheva] bvs. BAtzitzis] with a patach. why? Because R> IM Hakohein says:
"Rov Acharonim" Well go research THAT source. W/o a bar-Ilan CD it could tke
a lifetime!  But aside from my frustration that the Sha'ar hatziyyn left out
the specifics, he is TELLING us his methodolgy, follow the Rov Posqim!  in
THIS case, I would folow rov [frum] ba'alei dikduk - like Heidenheim,
Ya'avetz, etc. but that is a quibble.

I willconcede that Halcha is NOT an exact science, but that is imho NTO an
excuse for TOTAL subjectivity. There must be a way to have object criteria.
Why?

   1. We ahve a concept of To'eh bidvar Hamishah
   2. We have the concept of an errant Sanhedrin

If Halahcha wer 100% or even 90+% SUBJECTIVE, then we would have no rules to
hold anyone responsible.  As for scosmic irony, the mroe niskatnu hadoros,
the more likely we accept posqim w/o any quibbling! in the old Days when the
Giants walked the land, they got slammed!  Ever Read the Bedek Habbayis on
the Toras Habbayis?

Of course, when you object to decision, you have to play by the rules. you
have to cite sources.I can show MANY sources that have a patach under
Batzitzis isntead of the Sheva. But to tell the truth, Sevara seems to be
with the Mishna Brura because few Brachos have a hei hayediah [e.g. al
netilass LULAV not HALLULAV].  My problem with this one case isthat  I would
have chosen to consult the better edited siddurim instead of the posqim.

I like the way Beis Yosef does it. And Darchei Moshe ho'oruch, too. They
both urvey as many posqim as they can in their library and come down to a
bottom line.

The Aruch hashulchan does this a bit, but not quite as thoroughly as the 2
above.  The kaf Hachayyim is very good at modeling the BY.

And a colleague of mine once suggested a Beis Din of MB AhS and KhCh. I
would strongly recommend that Orach Hayyim issues be dealt with this way, it
makes a lot of sense.  If you need to add a vfew a bit more, I would add
Kitzur, Chayei Adam ,SA harav and maybe alieyah Rabbah to the mix. They all
go back a little bit earlier,  but they also used consensus quite a bit to
arvie at THEIR decisions.

=============================================================
totally tangential when  I preapred to teach issur v'heter his year I took
each subject at a time and I read 100% Tur, then 100% SA/Rema, then 100%
Levush. Then I went onto thenext subject. The usage of 3 simlar overlapping
poitns of view but enitrely differing styles, was really helpful in
solidfyin and cllarifying the issues w/o having to go to the Beis Yosef day
one.

If I had more time I would have added chochcmas Adam [the new edition is
marvelous!] and the Aruch hashulchan [who is very wordy]


-- 
Kol Tuv / Best Regards,
RabbiRichWolpoe@Gmail.com
see: http://nishmablog.blogspot.com/
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