Avodah Mailing List

Volume 25: Number 302

Thu, 21 Aug 2008

• 1. Re: Geirut (Chana Luntz)
• 2. Re: KSA, MB, AhS, Chayei Adam and other codes (Yitzhak Grossman)
• 3. Re: Geirut (Yitzhak Grossman)
• 4. Re: Geirut (Zev Sero)
• 5. Re: Is there an issur in smoking marijuana? (Micha Berger)
• 6. Re: Geirus (Arie Folger)
• 7. Re: [Areivim] jews? (Chana Luntz)
• 8. Re: Geirut - Rav Uziel's and the Achiezer's positions (Arie Folger)
• 9. Re: Geirut (Arie Folger)
• 10. Re: Geirus (Micha Berger)
• 11. Re: KSA, MB, AhS, Chayei Adam and other codes (Micha Berger)

RAF writes:

> Not necessarily. It would mean that the da'at of Beit Din stands en lieu
> of the qatan's da'at, just like beit din can appoint an apotropos who is
> qualified to make decisions requiring da'at en lieu of the minor orphans.

In what cases do you believe an apotropos makes decisions requiring da'at en
lieu of the minor orphans?  My understanding was that an apotropos was
fundamentally appointed to look after the property of the minor orphans, and
to make decisions in order to safeguard that property.  And that the basis
for the power of beis din to so appoint was hefker beis din hefker - since
Beis Din has the power to completely confiscate property should it choose to
do so, it is also fully within its power to appoint somebody to administer
such property for the benefit of technically whomsoever it chooses, although
in general such power is mostly exercised on behalf of minor orphans.
Similarly in the case of an absent husband, a beis din has power to appoint
an apotropos to, eg realise the property of the husband in order to support
his wife and children.  It can do so even, in extremis, if it is know that
is not the will of the husband - because of hefker beis din hefker.

I think (dredging up my memory somewhat here) there is some discussion about
an apotropos doing mitzvos on behalf of the minor orphans (particularly
giving charity, fulfilling the wishes of the deceased father, paying off
creditors) - but I was not aware of a case where that extended to a mitzvah
that requires daas.  Do you have an example in mind?  

In fact, if the apitropos (or beis din) could substitute for the daas of the
minor orphans, why can't they swear the necessary shavuos on their behalf
and overcome the fundamental difficulty that keeps cropping up when dealing
with minor orphans, of them not being able to swear?  After all, does not
kabbalas ol mitzvos more closely resemble a shavuah than anything else?

>  Alternatively, it may be that qabalat 'ol mitzvot is a requirement
>similar to the obligation to bring an 'olah scarifice upon converting: when
> impossible it need not be done. Bringing the sacrifice is impossible when
the Beit haMiqdash isn't standing, having da'at is impossible for a qatan.

You don't have to go as far as the olah sacrifice on conversion - there is a
classic case of if it is impossible it need not be done, in the case of
women and mila.  The conclusion on Yevamos 46a is that mila is a necessary
requirement for conversion, where possible (ie in connection with a man),
despite it not being practiced by our foremothers in Egypt (because of
course mila is not possible amongst women).

However, there are differences between mila for women, olah sacrifices and
kabbalos ol mitzvos.  In the case of mila for women, it is never going to be
possible.  In the case of an olah sacrifice, hopefully it will soon be
possible, but if we wait until it is possible, many many converts would
never have had the opportunity to convert, marry etc.  In the case of
kabbalas ol mitzvos, all we need to do is wait until the minor reaches
majority (which most of them are expected to do - yes there is the
possibility that they will die before they reach majority, but I can't think
of any case where we do things vis a vis a minor because of this relatively
remote possibility).

Another difference is that, as far as I am aware, in the case of the olah
sacrifice, when the Beis Hamikdash is rebuilt, that obligation will reassert
itself - ie it is not as though the obligation goes away, it is just
suspended until we have a Beis Hamikdash - that I thought was the general
position for korbanos that are not time bound.  So, for example, every
yoledes will, once the Beis Hamikdash is rebuilt, need to bring the
necessary korbanos (albeit that we know that one korban can be used for
mulitiple births) etc etc.  Why would it not be the same for a ger?  It is
just that the impossibility of bringing a korban makes the korban not meakev
(to the extent that it would be otherwise).  

But in the case of the katan, once he or she hits majority, it becomes
perfectly possible for them to make the necessary kabala, so why do we not
make the katan reappear before beis din on majority to then provide the
missing kabbala element?

> KT,
> --
> Arie Folger
> http://www.ariefolger.googlepages.com

Regards

Chana

On Mon, 18 Aug 2008 18:09:49 -0400
Micha Berger <micha@aishdas.org> wrote:

> On Fri, Aug 15, 2008 at 04:34:29PM -0400, Yitzhak Grossman wrote:
> :> But speaking a little more broadly... Hafka'as qidushin was never invoked
> :> the way RER did, with (1) no maaseh on the part of the husband, and (2)
> :> in a case by case fashion. He's taking an idea that historically was a
> 
> : As I have previously pointed out, perhaps "almost never" but not
> : necessarily "never"; see Darkei Moshe EH end of Siman 13....
> 
> DM on Tur 7:13 cites the case of a group of women who were captured in

My previous email incorrectly had "Siman 13"; it is actually at the end
of Siman 7, as you say.

> Austria. The gemarah doesn't allow an eishes ish who was penuyah return
> to her husband, and yet these women were allowed. The Rama suggests
> that the rabbanim were mafkiim qidushin. R' Herzog says that wouldn't
> have been sufficient, except as one half of a sefeiq sefeiqa. The other
> safeiq being, not every shevuyah is raped. AND, this case is permitting

Okay, but then this could still serve as a precedent for using the sort
of afke'inhu under discussion as a s'nif where there are other bases
for leniency.

...

> Aside from that, the Rama's solution is beyond my comprehension. A
> shevuyah who was never married can't marry a kohein either. Mah yo'il?

From my email during a previous iteration of this discussion:

> On Thu, 8 Nov 2007 14:29:10 -0000
> "Chana Luntz" <chana@kolsassoon.org.uk> wrote:

...

> > B) How would afkinu help for Cohanim anyway, whether she was considered
> > married to her husband the Cohen at the time or not, the problem of
> > zonah would surely still exist?
> 
> Quite a baffling question indeed; the Avnei Mi'luim [9] asks it and has
> no solution.  Ozar Ha'poskim [10] cites a couple of resolutions, but in
> my quick perusal, neither of them seemed particularly compelling.

...

> [9] EH 7:11 (5)
> [10] ibid.

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

On Mon, 18 Aug 2008 20:57:54 +0200
Arie Folger <afolger@aishdas.org> wrote:

> On Monday, 18. August 2008 17.35:52 avodah-request@lists.aishdas.org wrote:
> > R'n CL (on Areivim):
> > If kabalas ol mitzvos is an intrinsic requirement for giyor, then it could
> > not be done for a minor, because a minor does not have daas, and hence is
> > not capable of kabalas ol mitzvos.
> 
> Not necessarily. It would mean that the da'at of Beit Din stands en lieu of 
> the qatan's da'at, just like beit din can appoint an apotropos who is 
> qualified to make decisions requiring da'at en lieu of the minor orphans.
> 
> Alternatively, it may be that qabalat 'ol mitzvot is a requirement similar to 
> the obligation to bring an 'olah scarifice upon converting: when impossible 
> it need not be done. Bringing the sacrifice is impossible when the Beit 
> haMiqdash isn't standing, having da'at is impossible for a qatan.

Ritva (Kesuvos 11a):

"We immerse him, even though it is normally required that we inform the
potential convert of [some] lenient and severe [commandments], that is
a Mizva but is not Me'akev, and here where he cannot be informed, it is
not Me'akev"

This is apparently RnCl's position; I don't know whether the other
Rishonim agree.

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

Chana Luntz wrote:

> In fact, if the apitropos (or beis din) could substitute for the daas of the
> minor orphans, why can't they swear the necessary shavuos on their behalf
> and overcome the fundamental difficulty that keeps cropping up when dealing
> with minor orphans, of them not being able to swear?  After all, does not
> kabbalas ol mitzvos more closely resemble a shavuah than anything else?

AIUI the main problem with orphans and oaths is not that they have no
daat but that they have no personal knowledge of the things they are
expected to swear to.  A guardian would be expected to have even less
personal knowledge of these matters.

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

On Tue, Aug 19, 2008 at 02:55:28PM +0000, kennethgmiller@juno.com wrote:
: Rav Moshe Feinstein wrote about this in Igros Moshe, Yoreh Deah
: 3:35...
: He then gives his reasons. I found it interesting that violating the
: local civil laws is NOT among them. Of course, it is best to study his
: actual words directly, but my summary of his reasoning is:

: -- It is physically harmful.
: -- It damages the mind so that one cannot think straight, which prevents
:    one from learning Torah properly, and also prevents one from prayer and
:    other mitzvos.
: -- It leads to a desire (addiction?) which some are unable to keep in
:    check, which is the prohibition faced by the Ben Sorer uMoreh.
...
: -- It also violates Kedoshim Tihyu as explained by Ramban.

BTW, addiction is a violation of qedoshim tihyu - perushim tihyu,
since a desire one can't control (perhaps the definition of addiction)
is the one thing all agree perishus applies to. I think one of these two
(listed out of order for comparison) are redundant.

I am not the first to note that these objections would apply to
cigarettes or alcohol. The difference here is that:

1- Both apply at once. Not sure that's relevent.

2- Beyond DDD, which is a quagmire to pasqen which laws are "dina
demalkhusa", there is a secondary effect: 

: -- The reason given for the Ben Sorer uMoreh also applies to this case:
:    He will eventually come to rob others.
: -- It also leads to many other prohibitions.

Because it's illegal, willingness to smoke pot places on in a bad peer
group. It also culturally got associated with crime. Add that to
addiction and you have blatant similarlities to the BSuM.

And in that way, it's dissimilar to cigarettes or alcohol (since
prohibition, and even during prohibition, it was much less an "underground
society" thing).

Libertarians may use this argument as reason to legallize marijuana.
However, until the law changes, that's the metzi'us about which R' Moshe
wrote.

: But if that is so, then what would he say about occasional and light
: use of alcohol? Which of Rav Moshe's arguments would apply to a few puffs
: of a marijuana cigarette, but not to a few shots of whiskey? Does anyone
: know if he ever spoke or wrote about this?

It takes far more shots of whisky to create the same level of addiction.
Smoking is more iffy; I think nicotine is more addictive than marijuana.
(Although I don't know if that's only chemical addiction, or if it also
takes into account the greater psychological feedback loop.)

IOW, taking one's first cigarette raises venishmartem issues because it
will take that much more work not to take a second. The occasional user
is living with a desire he'd be better off not playing with.

Tir'u baTov!
-Micha

-- 
Micha Berger                 Time flies...
micha@aishdas.org                    ... but you're the pilot.
http://www.aishdas.org                       - R' Zelig Pliskin
Fax: (270) 514-1507

R'nCL wrote:
> The fact that
> they are two separate concepts can be seen by the modern day separation
> that occurs - a person (eg take a modern day Israeli of Russian descent)
> wants to be a Jew and identifies themself as a Jew. ?They do not however
> want to be shomer mitzvos. ?If such a person was converted as a katan, they
> would unquestionably not protest on reaching majority (and would use every
> opportunity to proclaim that they are a Jew). ?They would also keep on
> eating pork, being mechalel shabbas etc. ?The statement you bring in
> Kesubos above therefore does not fit to them, they are not in the slightest
> going to protest. ?Or alternatively, you will have to define KOM as being
> not wanting to protest being called a Jew.

The majority of posqim - e.g., those who require KOM even bedi'avad, would say 
that, based on how the Talmud explains 'Ameikh 'Ami vE-lohayikh E-lohai, that 
you cannot meaningfully separate between the two. To be a Jew is to be a 
bar 'hiayuva, and you cannot at once meaningfully state that you want to 
become (or for a qatan "have become") Jewish and yet refuse teh 'ol mitzvot.

Hence, to refuse 'ol mitzvot is synonymous with saying one doesn't want to 
have become Jewish. In the case of someone who was converted as a qatan, that 
renders the conversion retroactively invalid.

By the way, in order to disentangle this issue, I have taken to explain - in 
the rare cases of a ger qatan I might be involved in, that come age 12/13, 
we'll give the child two and only two choices, which the child should be able 
to meaningfully choose: either be Jewish and fulfil mitzot, or neither. We 
will not ask "do you want to be Jewish," and the parents cannot expect the 
answer to be considered meaningful and credible unless their home is one in 
which KOM is feasible/ a reality.

> Secondly, as I have pointed out in a previous posting - there is no act of
> positive acceptance by such a katan on becoming a gadol.  Even if we were
> able to identify the precise moment of majority, such a person remains a
> Jew by being passive.  In order to not be a Jew they have to actively shlug
> off the Jewish status by protesting. By acting positively as a Jew what
> they do is then lose even that option of shluging off the conversion.

But I am not convinced that coming to your bar mitzva service in a car and 
having announced a "qidush" in a seafood venue where the child will toast to 
lobster doesn't sound like a convincing form of being passive. The actions 
scream "I don't want 'ol mitzvot."

Kind regards,
-- 
Arie Folger
http://www.ariefolger.googlepages.com

RMB writes:

> The KOM is not done by BD. It's done by the child upon reaching an
> adult.

It seems to me you are reading something into the sources that is not there
(see  below). 

> : BTW though, even this opens up a relatively simple way of dealing with
> the  issue faced by the State of Israel - get Beis Din to convene every
>year and accept ol mitzvos for every minor born to an Israeli who came in
>under the  law of return 

> Such a child would not be apiring to the ideal of keeping mitzvos upon
> turning 12 or 13, and thus we would not have an [implied] KOM. The geirus
> would not be chal unless the parents provide chinukh.

Again only if you agree with your statement above that the child indeed does
have to do KOM on reaching adult, something you are yet to prove.

I wrote:

> : Source? - the Shulchan Aruch seems to say precisely the opposite:
> : Yoreh Deah siman 268 si'if 7 "And whether he was a minor megayered by
> : his father or by beis din he is able to protest when he becomes a gadol
> : and [then] his din is not like a Yisroel mumar, but rather like a non >
> : Jew".
> 
> : Si'if 8:  "in regards to what are we speaking, when he does not conduct
> : himself as a Jew [noheg minhag Yahadus] when he becomes a gadol, but if
> : conducts himself as a Jew when he becomes a gadol then he is no longer
> :able to protest."
> 
> Se'if 8 seems to go beyond what I said -- we require both implied
> acceptance through behavior and a lack of formal renunciation. 

Read it again carefully.  The key words are "yachol l'mchos" - is able to
protest - which comes directly from the gemora as you cited.  A new adult
who was converted as a child is able to "protest" and by so doing, he can
get out of the Jewish status that was conferred upon him.  If he fails to
protest (despite no KOM), the sources seem to say pretty explicitly that he
is a Jew.  Once he conducts himself as a Jew (let us say he performs one
single mitzvah, regardless of what his view might be regarding all of the
other mitzvos - in which he might not in the slightest be prepared to
accept), then even that ability to protest would seem to have gone.  

> In v25n115, RDE gives sources that show a very maximal definition of
> KOM, starting with Bekhoros 30b.

Yes.  But, as I indicated in a previous post: 

a) Bekhoros 30b is clearly talking about adults, you can't use that as a
source for katanim. 

b) Bekhoros talks about what beis din should do if a person comes and says
they will accept the mitzvos except for one (ie not accept them as a ger) it
does not talk about what happens  -either (i) if they did accept him anyway
(is he a Jew or not? - ie you can't get from Bechoros 30b to posseling gerus
retroactively, and while sources in Nach are all very well, without them
being then brought aat least in the gemora if not in the codes, you are
rather out on a limb in relying upon them, especially when they are hardly
clear cut - which is why I believe the Kusim are a much better source than
the wives of Shlomo HaMelech, because at least that is a gemora source); and
(ii) if he says that he will accept all the mitzvos but is in fact lying
(which he demonstrates by not doing any of them - or at least some key ones
like shabbas - the modern case - my guess is that many if not most Israelis
give gifts of food to their friends on Purim, for example, probably light
channukah candles, may well light shabbas candles, and I am sure we could
throw in a few more like this if you were determined to tot them up - so I
suspect at least in the Israeli context you could certainly find a mitzvah
or two if you searched hard enough); and

c) Bekhoros 30b is not brought l'halacha by the codes. Given the general
policy for the Rambam and Shulchan Aruch to quote gemora verbatim where
possible, that is significant.  There is an awful lot of fancy footwork
being done to show how really the Rambam and the Shulchan Aruch holds like
Bekhoros 30b, but if they really held like Bekhoros 30b, why didn't they say
so?  The language was there to be used and quoted, and it is, as you have
stated, pretty straightforward.  The most logical inference from the fact
that the language of Bekhoros 30b is absent from the Rambam and the Shulchan
Aruch is that they did not hold like it.  But if they do not hold like
Bechoros 30b, what do they hold like?  And why do they not hold like
Bechoros 30b?

You don't have to hold like the Shach, but it seems clear that is where he
is coming from.  Ie he holds that the Rambam and the Shulchan Aruch do not
hold like Bechoros 30b, as the story vis a vis Hillel and the convert
contradicts Bechoros 30b, and they are holding the one over the other.  I
agree that is not necessarily the only interpretation of the various
gemoros. One can hold, as you cited, that the story with Hillel all occurred
before he converted, and hence it is not contradiction to Bechoros 30b - and
I agree that there are commentators who take that approach.  But you (as
opposed to the Marasha, who is not doing an analysis of halacha l'ma'ase)
then have to explain the absence of Bechoros 30b from the codes, where one
would have expected to find it.


 I recommend the copy at
> <http://lists.aishdas.org/htdig.cgi/avodah-
> aishdas.org/2008q1/006718.html>,
> which won't have all those question-marks the digest turns Hebrew into.
> 
> Tir'u baTov!
> -Micha

Regards

Chana

Often those who want to be extremely lenient regarding the requirement for 
qabalat 'ol mitzvot (QOM/KOM) argue that they follow the position of Rav 
Benzion Hai 'Uziel and the A'hi'ezer.

Interestingly enough, I attended a small conference with prominent Dati Leumi 
rabbinic leaders this summer, and one dayan quoted both Rav 'Uziel and 
Rav 'Hayim 'Ozer Grodzinsky to stress that we need a practical, actualized 
QOM. According to that dayan, who showed me a quote of Rav 'Uziel to support 
his reading, Rav 'Uziel can at most be leaned upon to be happy with partial 
observance, for instance, kashrut, Shabbat and taharat hamishpa'hah.

(I already posted in the past - IIRC - that the A'hi'ezer isn't of one mind in 
this matter. In fact, since he bases himself on devarim shebelev einan 
devarim, it follows that such devarim shebelev that are supported by ample 
evidence of the ma'asseh category should disqualify the verbal QOM of someone 
who obviously has no intention to adhere to his commitment)

I thought it was remarkable to quote Rav 'Uziel le'humra, to compel at least 
minimal standards.

Kol tuv,
-- 
Arie Folger
http://www.ariefolger.googlepages.com

R'n CL wrote:
> In what cases do you believe an apotropos makes decisions requiring da'at
> en lieu of the minor orphans?

For example, deciding how to split up an inheritance. Making deals requires 
da'at, the apotropos can do it. By the way, even according to the man deamar 
that higdilu yekholim lim'hot, the power of the apotropos in this matter is 
no less than a beit din converting a minor.

The suggestion that an apotropos should swear en lieu of the orphans if indeed 
he can effectuate da'at for them is not convincing, for the ability to swear 
depends first and foremost on being informed about facts. The apotropos comes 
late into the game and cannot be expected to have anything to say on the 
matter.
-- 
Arie Folger
http://www.ariefolger.googlepages.com

The usual case of apitropos is management of a yerushah on behalf of
qetanim. (At least I imagine it's the most common.) This includes being
a maqneh, even though the qatan's lack of da'as bars him from giving
up ba'alus if he were doing it himself.


On Tue, Aug 19, 2008 at 05:09:04PM +0100, Chana Luntz wrote:
: Firstly, you are either conflating two different concepts here - or you are
: defining Kabbalas ol mitzvos differently from the way most people here are
: defining it.  

: The ability to reject what was done to the katan while they were a katan, is
: one thing and an agreement to keep the mitzvos is another.  The fact that
: they are two separate concepts can be seen by the modern day separation that
: occurs - a person (eg take a modern day Israeli of Russian descent) wants to
: be a Jew and identifies themself as a Jew.  They do not however want to be
: shomer mitzvos.  If such a person was converted as a katan, they would
: unquestionably not protest on reaching majority (and would use every
: opportunity to proclaim that they are a Jew)...

KOM is a mandatory part of geirus. "Chutz midavar achas" as the gemara
(Bekhoros 30b) and numerous rishonim write is enough to invalidate. (The
Rambam contrasts eved shenistachreir, who has ol mitzvos thrust upon
him with or without his own qabbalah.) The theoretical requirement, at
least WRT adults is clear cut. Rambam, Issurei Bi'ah 12:17, and SA YD 268.

The pragmatic issues:

1- We can't measure qabbalas ol mitzvos. After all, it's devarim shebaleiv
-- how can we know what a person honestly accepted at which point in
his life? So, the pragmatic question of whom we can assume is a geir is
distinct from the simpler one of who in principle should be a geir.

The Rambam makes this distinction WRT geirei arayos and WRT ignorance
of halakhah (see also 2a below) in Issurei Bi'ah 13:17 -- "yatza mikelal
goyum vechosheshin lo ad sheyibareier."

What overrides saying devarim shebeleiv einam devarim is the anan
sahadi -- what is he doing lemaaseh? See IM YD 1:159. And in IM
EhE 4:78, RMF uses this notion to prove that a C conversion wasn't
geirus, regardless of the personal observance of the rabbis in the
court.

2- Ein adam ba'aretz asher ya'aseh tov velo yechta. No one perfectly
knows halakhah nor perfectly observes. What's the "shiurim" in both
(a) knowledge and (b) willingness to try for qabbalas ol?

In both areas there are machloqesin lemaaseh, and this is many are more
meiqil than the current norm.

2a- The level of information isn't necessarily all that high. Batei din
today certainly want more than halakahah requires. The Rambam (13:2)
specifically quotes Chazal that we needn't give them details beforehand
lemaaseh, and if omitted, the Rambam has the problem mentioned in #1, we
can't know what they thought they were getting into.

2b- Here there is plenty of room for machloqes.

RCOGodzhinsky (Shu"t Achiezr 3:26) says that KOM means accepting that he
must do what every other Jew must do. Even if he is a mumar letei'avon
al davar achas and they are planning not to overcome the yeitzer hara
even while dunking.

R' Uzziel (MU #58) says the same, adding hopes for the next generation.

3- Does KOM actually mean accepting mitzvos? The phrase comes from the
gemara explaining Rus's words "amekh ami" (Yevamos 49b). What if someone
had another way of joining the am other than fealty to mitzvos?

RMS says that this is the primary thesis of the Mishpetei Uzziel, but I
see it as I wrote above, 2b. However, it seems to more clearly be
attributable to R' Goren.

Ad kan things I learned in March-May here and in looking others' mar'eh
meqomos up.



Now the question is geir qatan. One way to phrase it, as RnCL is heading,
is what is the role of the qatan's rejection?
    - Rejecting the self-assumed shelichus of the BD; or, as I assumed,
    - rejecting ol mitzvos 

I want to both explore the question as phrased, and turn the question
90 degrees. Given that KOM is required (whatever that means), where does
it go in the case of geir qatan?

1- It evaporates. There is geirus of women, even though milah is
   impossible, geirus bizman hazeh without the qorban, so perhaps someone
   not capable of KOM simply doesn't have to do it.
2- The BD does it for the qatan, as the words say "al da'as beis din"
3- The qatan does it himself upon becoming an adult.

The problem with #1 is that it's clear from the Rambam that milah,
tevilah and qorban constitute geirus, which would mean KOM (which he
requires as well) is not parallel. Perhaps a precondition.

According to Tosafos (Kesuvos 11a "Lekhi"), a geir qatan must pass two
criteria to be considered a geir:
1- he must in practice shomeir Torah umitzvos, and
2- he is not mocheh.

Tosafos (Sanhedrin 68b) explicitly say that the qatan does his own KOM.
And that in fact, R' Huna (Kesuvos) uses "zakhin le'adam shelo befanav"
only loosely. The KOM is the ikkar of geirus (perhaps only in this case,
since it's the last makeh bepatish, but perhaps not), and he is doing
it himself.

I noticed when reviewing all this for posting that the first requirement
they give in Kesuvos is the same as the anan sahadi for KOM later
mentioned by RCOG and RMF.

The aforementioned Rashba (Qiddushin 23a) and Tosafos Yeshanim (Kesuvos)
say that the macha'ah is a rejection of their shelichus. However, the
Tosafos Yesheinim says that being non-observant is an implicit macha'ah.
It would seem RnCL is right on the details according to the Rashba.

So, I would say the difference isn't that I'm conflating two different
things, it's that I first encountered the sugyah learning Kesuvos in
shiur, and thus remembered the shitas Tosafos I saw first.

Tir'u baTov!
-Micha

-- 
Micha Berger             Nothing so soothes our vanity as a display of
micha@aishdas.org        greater vanity in others; it makes us vain,
http://www.aishdas.org   in fact, of our modesty.
Fax: (270) 514-1507              -Louis Kronenberger, writer (1904-1980)

On Tue, Aug 19, 2008 at 05:27:02PM -0400, Yitzhak Grossman wrote:
: Okay, but then this could still serve as a precedent for using the sort
: of afke'inhu under discussion as a s'nif where there are other bases
: for leniency.

How? The Rama says it's not din! The only maqor we have for the idea (of
someone we know) rejects the notion, and then provides a limud zekhus
for those rabbanim who wallpapered over a situation that wasn't going
to change no matter what they said.

In any case, I admit this weakens the case against saying RER created the
notion out of whole cloth. It still explains why other rabbanim wouldn't
even consider it a senif. Particularly RYBS, who uses the lack of use by
people much greater than us and who wouldn't miss something this obvious
-- if it were real -- to help agunos as proof that it isn't real.

To get back to RRW's reason for raising it, this still rules out the
shitah as an option to consider weighing pros and cons for.

Tir'u baTov!
-Micha


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