Avodah Mailing List

Volume 25: Number 305

Tue, 26 Aug 2008

• 1. Re: Geirut (Arie Folger)
• 2. Re: Geirut (Arie Folger)
• 3. Re: Geirut (Chana Luntz)
• 4. Re: Geirut (Chana Luntz)
• 5. Re: Geirut (Arie Folger)
• 6. Re: Geirut (Arie Folger)
• 7. Re: bracha on megilla (Moshe Y. Gluck)
• 8. Re: bracha on megilla (Micha Berger)
• 9. Re: Issur in smoking marijuana? (Moshe Y. Gluck)
• 10. Re: Issur in smoking marijuana? (Micha Berger)
• 11. Re: [Areivim] The conversion controversy (Harry Maryles)
• 12. Re: [Areivim] The conversion controversy (Chaim G Steinmetz)
• 13. Re: shkia according to SA (Richard Wolpoe)
• 14. Re: KSA, MB, AhS, Chayei Adam and other codes (Richard Wolpoe)
• 15. Birkas haChama (Efraim Yawitz)
• 16. Re: Geirut (Micha Berger)
• 17. Re: bracha on megilla (kennethgmiller@juno.com)
• 18. Re: Reciting a benediction on a custom that is not mentioned in the Talmud (Jay F Shachter)
• 19. Re: bracha on megilla (Moshe Y. Gluck)
• 20. Issue in Smoking Marijuana (efpasik@aol.com)

R'n CL wrote:
> The question here seems to be though not quite as you have stated, and I
> think this is the heart of the dispute - ie whether refusing the ol
> mitzvos mean that the whole statement of wanting to become Jewish is
> meaningless, or is it that the statement of refusing ol mitzvos is
> meaningless - because it is not possible.

Most posqim would say that refusing 'ol mitzvot, even when accepting them 
theoretically but not intending to fulfil them, is utterly meaningless. Both 
Rav Herzog and Rav Goren considered such conversions meaningless. Rav Herzog 
in a letter to the Swiss Rabbinical Council (home turf ;-)) preserved in 
Shut 'Helqat Ya'aqov. Rav Goren in his invalidation of Mr. Langert's 
conversion on account of lacking KOM. As I posted on list, some dispute that 
Rav 'Uziel meant to recognize conversions with no KOM, and as I stressed, the 
A'hi'ezer definitely didn't rule leniently in such a case. He wasn't talking 
about umdena demukha'h, where the dayanim simply refuse to scratch below the 
surface, but about any unknown thoughts the convert may have been harboring, 
stating that devarim shebelev einam devarim.

> There is also the question of 
> the terminology at stake. If you take the statement "I want to become
> Jewish but not be obligated in the mitzvos" - that last part is an
> impossibility, given the first part, so do we ignore the last part, and
> keep the first part, or do we knock out the whole statement as not
> meaningful because it is contradictory. ?And what if the statement is "I
> want to become Jewish and not keep the mitzvos" (but nothing about
> obligation)? ?Is that too an impossibility and meaningless, despite the
> fact that the reality of that is lived by secular Jews every day?

Rav Moshe considers this a mockery of 'ol mitzvot.

> What 
> if the person said explicitly "I want to become Jewish and I want to
> have the same olam haba as my non frum Jewish friends" - ie accepting
> that there is an obligation, and there may well be din v'cheshbon on
> this, but willing to take the same chances as the non Jewish friends.

See above. No go.

> The case of the katan though is different, because at no stage does the
> katan necessarily even state he wants to become Jewish. ?At most he
> seems to have the option to reject the whole package - Jewish plus ol
> mitzvot. ?So if he does nothing, what happens?

I asked of several dayanim what would be the case, and I got wildly differing 
answers. The most honest one is that, because this isn't a clean cut case, 
you should confront the convert with the question, even years later (IIRC 
that is according to Avnei Nezer, who, IIRC, believes that as long as the 
child isn't aware he/she/it can be mo'heh, there is still a possibility to 
renege on one's Jewishness even well into adulthood) whether he/she/it wants 
to be Jewish and keep mitzvot, or neither.

> Even if you hold that you 
> cannot halachically separate between the two, that does not necessarily
> mean that you rule him not Jewish. ?The other alternative is that you
> rule him Jewish but still a bar hiyuva, whatever he says - in exactly
> the same way you do for a born Jew - who can wander around refusing the
> ol mitzvot as much as he likes, it don't help any.

But the basis for enabling the conversion of a minor is zekhut hu lo, which is 
all about KOM, and anyway, higdilu yekholim lim'hot, because may be it ain't 
a zekhut after all, and by being through and through non-practicing (I am not 
talking about incomplete observance but with attempts at kind of keeping 
Shabbat - such *would* show interest in 'ol mitzvot) doesn't the now gadol 
child show he/she/it isn't interested in 'ol mitzvot?

> In the words of the 
> gemora (Nedarim 8a) v'halo mushba v'omed m'Har Sinai hu - we are deemed
> to be sworn to keep the mitzvos from the time of Har Sinai, and because
> of this we *can't* in reality go swearing to keep mitzvos now, even if
> we want to, because ain shavuah chal al shavuah. ?Similarly, we can't go
> resiling from the obligation to keep mitzvos now. ?Neither, according to
> this view, can the now grown up katan - the only thing he can do is
> reject everything, and even that he cannot do once he has done something
> that indicates that he is behaving like a Jew - ol mitzvos comes whether
> he wants it or not, just like for us.

Or, by rejecting 'ol mitzvot, he is rejecting everything.

I will grant you one admission: whereas regarding gedolim, the issue is clear 
cut, regarding qetanim, it might very well be that as long as bish'at tevilah 
the family was going to be religious, and later went off the derekh, the 
child is indeed properly converted (but it must have been a zekhut bish'at 
tevilah), and perhaps indeed, as the secular child is usually not capable of 
understanding 'ol mitzvot at the tender age of 12-13, his non-observance is 
not deemed a me'haah. After all, I only speculated about this being 
tantamount to a me'haah, and I see no conclusive answer. IOW, I admit that, 
as there is no way of having a regular KOM in a minor, it is a milta de-i 
efshar and is partially waved. (Note I did concede that 'al da'at beit din 
doesn't mean that BD is doing the KOM for the qatan.)

But please remember, it isn't charitable to find or make people to be safeq 
geirim. A vadai nokhri can marry a vadai nochriyah, a vadai ger any Jew 
except a bat Kohen, but a safeq cannot even marry a safeq. We do a disservice 
by allowing doubtful identities to form, never mind the lifnei iver problem 
of allowing people to become Jews when they will then acquire some gehinnam 
for suddenly transgressing serious prohibitions every time they do simple 
things that were hitherto permissible for them, such as eating bassar 
be'halav, neveilah, tevel and having relations with one's now spouse without 
that the woman uses the miqweh.

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

Besides reflecting on giyur qatan, R'n CL has been musing, as well, on the 
necessity for a ger's qabalat 'ol mitzvot to follow a known halakhic model, 
for otherwise it would be entirely an issue of devarim shebelev, which could 
not possibly affect the validity of the giyur.

I have mentioned in my posts that certain things aren't just devarim shebelev, 
but umdana demukh'ah. I now want to show this using a known "halakhic 
paradigm" (as per R'nCL's appropriately used nomenclature).

The Talmud Bavli 'Hullin 12b-13a (it is actually quoting a mishnah, but almost 
all my sefarim are in boxes, and kodesh.snunit.k12.il does not have Messoret 
haShas, so, let's just quote the Bavli) explains that while qetanim do not 
have ma'hshavah (=da'at), and thus cannot declare an object finished and 
subject to qabalat tum'ah, nonetheless, they do have one kind of ma'hshavah: 
ma'hashavto nikeret motokh ma'assav. Children who play with nut shells and 
turn them into scales for weighing have effectuated the necessary ma'hshavah 
to render them meqabel tum'ah.

I contend that the lifestyle of the candidate for conversion can often tell us 
a great deal about his ma'hshavah. His actions reveal to us what his heart 
conceals. If someone claims to accept 'ol mitzvot, but never even kept one 
Shabbat shevitat melakhah on the most rudimentary level, and that after 
he/she/it went through a conversion course, then his action scream loudly 
that there is no qabalat 'ol mitzvot.

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

I wrote regarding KOM:

> The thing is, you are not thinking like a halachist.  What you appear to
> be creating here is a new paradigm within halacha, without reference to
> the traditional discussions.  You see, verbal statements, including
> agreements to something or promises to do something is discussed
> extensively throughout shas, under the rubric of nedarim and shavuos (vows
> and oaths

An alternative halachic paradigm that could possibly be applicable is that
of tnai.  The concept of tnai is usually discussed in connection with
kiddushin or gerushin, and it involves eg a man saying to a woman that she
shall be mekadesh to him on condition that "X", where X is something like,
he receives a million dollars, or he is a tzadik or he will fly to the moon
or whatever.  There is a fair amount of discussion regarding the correct
language that needs to be used in such a case, and what if the tnai is not
possible, but that is not really important here.  What is important is that
if the tnai is not fulfilled, the underlying "transaction" (I can't think of
the correct term, but what I mean by this is the kiddushin or the gerushin)
falls apart.  In that sense, the way KOM is usually understood (and as you
have articulated it) appears to resemble a tnai on the giur.  That is, the
convert says, or is deemed to have said (or is required to say), I convert
on condition that I accept that I am obligated that I keep the mitzvoth -
and then if he does not accept the mitzvot, the giur is never chal.  This
fits rather better with what you quote as your father's view that if the
person at some later time did accept the mitzvoth, the giur would be chal at
that time, than what appears to be the more common view in circulation at
the moment that conversions can be completely invalidated by showing that
the person was not immediately after the conversion, shomer mitzvos.  It is
also very difficult to fit with a katan.

I suspect that this may be the way Rav Goren understood it, because he (and
I believe battei din following him) have imposed what appear to be other
forms of tnai on conversions (such as the conversion is invalid if you ever
leave Eretz Yisroel).

The question though, if you do hold that KOM is a form of tnai on the giur,
the question is, who imposed it, is it intrinsic, is it something imposed by
the Chachamim, or is a common practice generally imposed by batei dinim (for
understandable reasons), but which technically, if not imposed, does not
invalidate the giur but in fact arguably would make the giur a more complete
giur.

And as I have indicated, the intrinsic argument is difficult, because then
the codes really ought to say: the requirements for giur are: a) mila; b)
tevila; c) korban and d) KOM (not necessarily in that order).  Even if it
was a rabbinic requirement, learnt out from Bechoros 30b, one would have
expected it to be listed in the codes as one of the necessary elements.
That is, trying to leave aside the politics, the textual difficulty.  People
are so convinced that KOM is an intrinsic requirement, that they keep trying
to read the sources as saying that.  But the language one would expect to
see in such a case is just not there.  And that is what makes this tricky. 

Regards

Chana

RAF writes:
> Nonetheless, my other point stands, that the language of dinei mamonot is
> used in conjunction with a giyur qatan, namely, zakhin lo leadam shelo
> befanav.

Agreed (the language of zakhin lo leadam is even specifically brought in the
Shuchan Aruch, you can't get more persuasive that that is at the heart of it
than that).  But I don't see how this helps you any.

Let us take the case, the classic case, of zakhin lo leadam, that of
accepting a gift on behalf of another person.  The idea is that owning
property is a benefit, and therefore, if the giftee (the intended recipient
of the gift) is not around, then somebody else can stand in and receive the
gift from the giftor on his behalf.  Now this is despite the fact that
owning property comes with obligations which are inextricably bound up with
ownership.  As an owner of property, I have an obligation to see that my
property does not injure or damage anyone.  In addition, to get any value
out of my property, I have to look after it.  In some cases, people decide
that the obligations that come with property are more than they wish to take
on, and so do not in fact want to own property.  In order to allow for this,
under the principle of zakhin lo leadam, while somebody can accept the
property on behalf of the giftee, if the giftee subsequently objects, the
property is deemed never to have become his.  However, the reason zakhin lo
leadam is deemed to work, is because the vast majority of people want to
gain property, despite the obligations which come with it, and hence gaining
property is considered a benefit.  For the rare "weirdo" who does not want
to own property, there is an out, but zakhin lo leadam does not work for
anything that is considered primarily or generally a chov ("ain chayavin
l'adam shelo befanav").

Now apply that principle to the ger katan.   The fact that zakhin lo leadam
is deemed to be at work means that one has to say, at least vis a vis a
katan, that being a Jew is a benefit (even if some obligations come along
with that - which everybody agrees they do, there is no disagreement that
being a Jew means you are a bar chayuva).  If the chov parts are deemed
outweigh the benefit parts, or even to really be a significant part, then
the whole mechanism just would not apply.  But KOM is precisely about chov -
and the more emphasis you put on it, the less applicable the whole concept
of zakhin lo leadam appears.

Rather, the analysis appears to be - any normal katan would unquestionably
be regarded as benefiting by being a Jew, even though chiyuvim in the form
of mitzvos comes along too.  It is only the oddity that would reject this
situation, so on majority, you allow for the odd one out, but the halachic
presumption is as before.

Now, I can understand an argument that if we accept a ger katan whose
parents are not going to bring him up frum, then logic would seem to dictate
that in the majority of cases such a katan, on reaching gadlus, is likely to
prefer not to be obligated in the mitzvos (ie that the chov aspects outweigh
the zakin aspects) - and therefore surely zakhin lo leadam should not apply.
But, one has to be clear that one by concluding this one appears to be
reversing the presumption of the gemora and Shulchan Aruch (it is a bit like
saying, well modern day women just don't behave like tam du, despite what
the gemora says, so we will ignore or reverse the presumption in the gemora)
At best you might be able to argue for a reading in of conditionality that
is not clearly there (you can have a go at implying it from the discussion
on Kesubos 11a but even that relies on a look forward test that it is not
clear you are authorised to do).  In the real world, I can see many many
reasons why a beis din would not want to convert somebody whose parents or
guardians are not frum (and beis din certainly has discretion), but the
sources just do not seem to bear out the assumption that a beis din is
therefore not permitted to do so, and that if they did so, that the person
is not, prima facie, Jewish - unless they perform a whole song and dance on
gadlus to get them out of it.

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

Regards

Chana

R. Zev Sero spotted a special kind of typo he called a "thinko" and corrected 
me offline:
> Arie Folger wrote:
> > A vadai nokhri can marry a vadai nochriyah, a vadai ger any Jew
> > except a bat Kohen, but a safeq cannot even marry a safeq.

> This is obviously a thinko.  You certainly meant to write that a vadai
> giyoret can marry any Jew except a kohen.  A vadai ger can marry *any*
> Jewess, including a bat kohen.

Yes, indeed. I meant that a giyoret cannot marry a kohen.

Sorry, I am really tired lately, way too busy with my move.

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

On Monday, 25. August 2008 00.07:16 Chana Luntz wrote:
> Now apply that principle to the ger katan.   The fact that zakhin lo leadam
> is deemed to be at work means that one has to say, at least vis a vis a
> katan, that being a Jew is a benefit (even if some obligations come along
> with that - which everybody agrees they do, there is no disagreement that
> being a Jew means you are a bar chayuva).  If the chov parts are deemed
> outweigh the benefit parts, or even to really be a significant part, then
> the whole mechanism just would not apply.  But KOM is precisely about chov
> - and the more emphasis you put on it, the less applicable the whole
> concept of zakhin lo leadam appears.

That is were Da'at Beit Din plays a role. If the child will be frum, it will 
consider 'ol mitzvot a privilege that outweighs the cost, and ZLASLBF will 
work. However, if the child won't be observant, it will be objectively a 
setback to have been converted, and hence beit din would have had no right 
[and according to many posqim: no possibility] to convert such a child.

<SNIP>
> In the real world, I can see many many
> reasons why a beis din would not want to convert somebody whose parents or
> guardians are not frum (and beis din certainly has discretion), but the
> sources just do not seem to bear out the assumption that a beis din is
> therefore not permitted to do so, and that if they did so, that the person
> is not, prima facie, Jewish - unless they perform a whole song and dance on
> gadlus to get them out of it.

The "song and dance [up]on gadlus" is performed in order to avoid problems 
further down the line, when it becomes unclear if there was or can still be a 
me'haah, and what to do if behavior [nonobservance] contradicts stated 
preference [wants to have become Jewish].

However, the greater issue is under what circumstances beis din can convert a 
minor, period. Rav Moshe entertained the thought that it is a zekhut to even 
be amongst the posh'ei Yisrael, but that was because the kids were in a frum 
school, and the odds were there that they would become frum, and hence, 
bishe'at giyur there was a decent expectation of classical zekhut hu lo for 
the children to convert. IOW, if you'd want to solve the Russian nokhri 'olim 
crisis by converting the children AND putting them all through Shuvu-type 
qiruv schools, that would very well work according to many posqim. Barring a 
religious education in a day school setting, I very much doubt that RMF would 
have considered his thoughts about it possibly being a zekhut to even become 
one of the posh'ei Yisrael sufficient to succesfully convert a child.

If the mechanism for conversions of minors is zekhut hu lo - as the sources 
indicate -, then beit din has a lot less leeway than some people think. When 
it ain't a zekhut, the deal never happened!

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

> : R' Eli Turkel wrote:
> :> I don't think we ever say a beracha on a minhag that
> :> is not mentioned in the gemara.

Kiddush in shul?

KT,
MYG

On Mon, Aug 25, 2008 at 01:51:55AM -0400, Moshe Y. Gluck wrote:
: R' Eli Turkel wrote:
: > I don't think we ever say a beracha on a minhag that
: > is not mentioned in the gemara.

: Kiddush in shul?

That too is a minhag to make a berakhah, not a berakhah on a minhag.
Those berakhos are *on* yayin and qedushas Shabbos.

There are cases where Ashkenazim make a berakhah on a minhag (e.g. lighting
neir chanukah in shul), but this isn't one of them.

Tir'u baTov!
-Micha

R' AM:
> BTW, while we're on this thread, I'd like to thank those who answered my
> question by pointing out that the addictiveness of drugs, and the tendency
to
> hang out with society's lower elements, do make RMF's teshuva apply more
> strongly to drugs than to tobacco and alcohol.

I was speaking with someone about this over Shabbos, who said that she had
no problem stopping smoking marijuana (though she wasn't a heavy user) - is
there any way to measure addictiveness?
Also, on the subject of comparing these three addictive substances, I would
guess that RMF based his Psak on common usage, as his Shittah, I'm told, is
to be Nigrar after the Minhag. Smoking tobacco was accepted so he needed to
justify it, alcohol was accepted. But marijuana was not. The Halachic
process trumping consistency.

KT,
MYG

On Mon, Aug 25, 2008 at 1:06pm EDT, R Moshe Y. Gluck wrote:
: Also, on the subject of comparing these three addictive substances, I would
: guess that RMF based his Psak on common usage, as his Shittah, I'm told, is
: to be Nigrar after the Minhag. Smoking tobacco was accepted so he needed to
: justify it, alcohol was accepted. But marijuana was not. The Halachic
: process trumping consistency.

That was the conclusion I reached from RMF's repeated invocation of the
concept of ben sorer umoreh. The rebelliousness implied had much to to
with his pesaq.

Tir'u baTov!
-Micha

--- On Mon, 8/25/08, Chaim G Steinmetz <cgsteinmetz@juno.com> wrote:

> From: Harry Maryles <hmaryles@yahoo.com>writes

>... Here's an idea. Let's make all these Russian immigrants Avodim.
They

> can sell themselves into Avdus. The Government will have 
> pre-designated people to be their owners who will buy them with funds 
> awarded to them by the government.?

> Those owners will then issue them a Shtar Shichrur and presto, they 
> will be Jews according to everyone. No Kabbalas Ol Mitzvos 
> required.
> ?
> HM

Actually, an eved knani needs KOM of the mitzvos which he is obligated in
- which are all the mitzvos a woman is obligated in.

____________________________________________________________
?
?
?
I've heard that. But I haven't seen the SA. Does the SA or Nosei Kelim
there mention?KOM as a voluntary oblligation? What happens if he or she
refuses? Do we let them go? 
?
If one captures a slave, is he not automatically given the status of a
woman vis-a-vis Mitzvah obligation? This is what I aways assumed when
learning those sugyos in the Gemarah dealing with Avosdim. 
?
I can't imagine first asking a slave if he will be Mekabel the Ol Mitzvos?
just before we capture him. I thought capturing him made him automatically
obligated - ?whther he or she likes it or not.
?
But?since I am not familiar with Hilchos Avodim - and you seem to be... please enlighten.
?
HM

Want Emes and Emunah in your life? 

Try this: http://haemtza.blogspot.com/

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See Rambam Hil. Shabbos 20:14. Issurei Biah 14:9.

On Mon, 25 Aug 2008 13:25:25 -0700 (PDT) Harry Maryles
<hmaryles@yahoo.com> writes:

I've heard that. But I haven't seen the SA. Does the SA or Nosei Kelim
there mention KOM as a voluntary oblligation? What happens if he or she
refuses? Do we let them go? 

If one captures a slave, is he not automatically given the status of a
woman vis-a-vis Mitzvah obligation? This is what I aways assumed when
learning those sugyos in the Gemarah dealing with Avosdim. 

I can't imagine first asking a slave if he will be Mekabel the Ol Mitzvos
 just before we capture him. I thought capturing him made him
automatically obligated -  whther he or she likes it or not.

But since I am not familiar with Hilchos Avodim - and you seem to be...
please enlighten.

HM

Want Emes and Emunah in your life? 
Try this: http://haemtza.blogspot.com/

On Thu, Aug 14, 2008 at 5:15 PM, Eli Turkel <eliturkel@gmail.com> wrote:

> > One famous example is the definition of shekia. SA paskens like Rabbenu
> Tam
> > that it means a second shkia "72 minutes" after sunset.

> --
> Eli Turkel

AIUI everyone pretty much followed RT [e.g. See Tur re: Ta'anis and shekia
as well as SA etc. [Exceptions include: Rambam re: Neros hanukkah etc.
Levush about zmanei Tefillah.

 The Sea Change AIUI was the GRA and The SA Harav and the fact that
Lithuania is so close to the Arctic cicrle it was impossible to follow RT.

Yekke and Hngraian communites still allow for Mincha after "shekia" [i.e
first shekia} and [as mentioned above] Litvaks might have followed suit if
not for the extreme latittude.

Three is a entire controversy brewing at Breuer's re: keeping the old zminim
in the face of the Yeshivishe world's demand to daven BEFORE shekia...

-- 
Kol Tuv / Best Regards,
RabbiRichWolpoe@Gmail.com
see: http://nishmablog.blogspot.com/
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On Wed, Aug 13, 2008 at 5:14 PM, Micha Berger <micha@aishdas.org> wrote:

> sadeihu".

> : Imagine personality can mamash CHANGE within  JUST ONE liftime, but human
> : nature cannto change in 1,500+ years of history! I am indeed perplexed by
> : this paradox!

> Where do I say anything about human nature? I'm writing about his claim
> of makach ta'us applying to something that wasn't part of the deal when
> they got married, and you are replying about "tav lemeisiv". Even if tav
> lemeisiv changed, to say that she later found him to be a jerk qualifies
> for makach ta'us is a chiddush without prior basis.

YOU missed my point. her LATER discovery was of a character trait that WAS
ALWAYS THERE and did not change, it was just masked. the Mikash Ta'us is
that had she been aware of the pathology of the person day one she would nto
have agreed to the marriage.

I have actually seen marriages like this. One woman complained to me that
her hubby ignored their baby [neglect] something that could not have been
evident at time of kiddushin. But the character trait was probably there
from day one and HAD the wife known about it she would NOT have marreid him
[they did divorce  BTW]

So Rackman is saying, that ROV character flaws WERE ALWAYS THERE and were
grounds from DAY ONE to be mafki'a kiddushim.  The fact that thye did nto
manifest until later is a funcion of the trait gbeing HIDDEN not of a change
of circumstances. Tht is Rackman's thesis. And if you ask most
psycho-thepists you will find that people do NOT change basic tratis w/o a
LOT of motivation.

Unless the husband suffered a trauma and afterwrds it manifested as a NEW
character flaw, Rachkman has every rigth to say that the falw was there. all
along

> It is not a case where we can make conflicting arguments to weight pros
> and cons. It's a case where his detractors claim ein raglayim ledavar
> altogether.

> In ChM, where they have hefqeir BD hefqeir, or to go beyond halachic
> norms (taqanos). Here it's lehatir, it's not ChM, I don't see relevence.

BD under extreme circumstances can ignroe precedent. This is clear

> :> Both of us should agree that places his position objectively outside the
> :> fold.

> : I fail to understand how your heuristic read of Halachic Judaism how
> ANYONE
> : is completely objectively IN or OUT of anything normative.

> I don't see how your algorithmic read includes the majority of baalei
> mesorah as engaging in halachic process.

I don't accept Rackman. But I fail to see how you cannot!  He is far less
radical than many of the shitos that you DO accept. Therein lies the
inconsistency! Fater all there IS an imperative to be mattir agunos! So his
heuristic wieghing MSUT be kosher even w/o a defeinte precedent.

The Beist Ysoef says lo r'inu ino raya.

> :> There is no maqor. It's his own invention.

> : Yes I saw that the Kitzur Misgeres hashulchan accused the Kitzur SA of
> the
> : same a few days ago. He says [in the R. Mordechai Eliyahu edition]  Taht
> : there is NO MAQOR in poskim fro this decision.  And what does that prove?
>  A
> : snif here and a snif there and presto it's Halachah!

> No maqor means no senifim. Not by implication, by identity. If there
> were senifim, they would each be pieces of a maqor. Here, there is just
> reasoning that was never used before that would provide a more derekh-noam
> solution that thousands of pages of gemara, rishonim and acharonim.
> Saying that reasoning must be wrong, not a factor to be added, is quite
> strongly supportable.

HUH?  The misgeres says KSA has not maqor. what does sniffim ahve to do with
it! My sniffim comment was irrelveant.

I am saying this, SO WHAT if there is not maqor? How is that a flaw?  If
precdent can be ignroed it can be ignroed!

> This is what I'm talking about, that your algorithm doesn't include the
> majority of baalei mesorah. Look through Otzar haPoseqim in YD.

Who is this?

> "A snif
> here and a snif there" is lemaaseh the normal way to do things. Either
> you accept the concept, or you have to exclude the majority of shu"t
> from your notion of the halachic process. I would faster conclude your
> model is wrong.

nve saw this technique in SA/Tur and primary nos'ei keilim.

> : There are a lot of "Da'ss Yachid" types out there. Does being a Da'as
> yachid
> : preclude eilu v'eilu?  WAs the B'al Hama'ors biur hametz erev Pesach via
> : eating outside Eilu v'eilu?

> : Does consensus count in p'sak And ven if it DOES count, who says there
> can
> : be ZERO dissent?

> It counts for a lot. Not for everything, eg hefseid merubah allows
> looking for an al mi lismokh and other senifim lehaqeil, but a lot.

Rema in tach says hefsed merubah is a heter to be somiech on a meikel shita.
AFAIK it is not a heter to find other heteirim per se. Rema relies upon
precedent

> But here it's not Beis Shammai saying Beis Hillel is wrong. It's saying
> RER is wrong the way the Issiim were wrong. Not employing the heuristic.

HOW so!  Beis Shammai iwas ruled wrong bu is STILL eilu v''eilu. I don't se
HOW rackman can be any WRONGER than BS.  this huerisics is just a way of
saying tath SUBJECTIVLEY you are comfortabel weith X and not Y but in
objetive truth there is no hilluk, just a subjective impression.

> :> But according to RALichtenstein, the iqar of RYBS's objection is that if
> :> one could simply invoke hafka'as qiddushin in this way, we could throw
> :> out much of Yevamos, Gittin, Even haEzer, etc...

> : ein hachi nami, in a hora'as sho'oh you MAY throw them all out.  But I do
> : belive R. Rackman never meant to throw it all out

> He did! He may have not meant to, but the agunos who came to him didn't
> need eid echad, eid mipi eid, or any of the other super qulos in birur
> Chazal allowed to permit remarriage.

Well than maybe Rackman went fartehr than I am aware of.  But I am nto aware
of this.
I am ONLY referring to the lemafrei'a hafaka'ah point not to other
"kvetches" or abuses.

DISCLAIMER I am not advocting in ANY way RER's system, but I am saying that
he [as well as Golinkin] DO fit into your heuristic model at least for the
most part.

> http://www.aishdas.org/asp/2007/11/halachic-process-part-i.shtml
> http://www.aishdas.org/asp/2007/11/halachic-change.shtml

> http://www.aishdas.org/asp/2007/11/halachic-process-
> interlude-what-it-isnt.shtml
> http://www.aishdas.org/asp/2007/12/halachic-process-part-ii.shtml
> http://www.aishdas.org/asp/2007/12/halachic-process-addenda.shtml

> Tir'u baTov!
> -Micha

> --

-- 
Kol Tuv / Best Regards,
RabbiRichWolpoe@Gmail.com
see: http://nishmablog.blogspot.com/
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Since the Birkas ha-Chama is coming up next year, I'm wondering if
anyone has thought about the factual aspects of the subject.  As far
as I am aware, this 28-year cycle means absolutely nothing according
to modern astronomy (or even according to Ptolemaic astronomy).  Has
this been discussed before?  (Avodah/Arevim is not yet 28 years old,
and for that matter neither is the Internet as a popular tool.)

Kol Tuv,

Ephraim

On Fri, Aug 22, 2008 at 02:05:51PM +0100, Chana Luntz wrote:
: Well this gets us into what I think is an even more complicated issue.
: If KOM exists as a halachic requirement - what *is* it.  Is it, as you
: say devarim shebaleiv?  But halachically, as you know, devarim shebaleiv
: aino devarim - they just don't really count for anything.  And suddenly
: you are saying that devarim shebalev, which are discounted all the way
: through halacha as having real halachic impact, suddenly do so in this
: case?  That seems a really difficult understanding to have.

RMF (IM YD 1:159, EhE 4:78) and RCOG (Achiezer 3:26) were both already
cited as invoking anan sahadei to explain why it's not dismissable as
other devarim shebeleiv.

So it seems you're not alone in your difficulty, but they didn't see the
answer in mapping KOM to another halachic concept.

...
: On the other hand, if you do hold KOM is a requirement, does that mean
: that you hold that the ger is *not* bound by the shavuah made on Har
: Sinai (which makes a certain degree of sense, because as a goy he was
: clearly not), and hence he had to enter into his own shavuah? ...

I'm missing why you have a need to cast KOM into another halachic
category. The gemara discusses nedarim, it mentions KOM. Why can't KOM
stand as its own beryah?

But in any case, maamud har Sinai was a beris. Is entering a beris the
same as making a shavu'ah? And if so, can two distinct shavu'os bring
two different people into the same beris? Because that's what it would
take to cast KOM into something from mesechtes Nedarim.

Maybe a better model is a qinyan. Not in the sense of acquiring an
object, but like the qinyan sudar used to appoint a shaliach.

But again, I'm only playing the game of fitting KOM into a bigger kellal
because I am expecting that in a future email you will show me why there
is a need to.

...
: Dunno, but this is why I find the whole concept of KOM, that you seem to
: swim through so easily, so messy and complicated.  Can somebody give me
: another paradigm for KOM that is not a shavuah and not devarim shebelev?

How can we? RMF and RCOG already felt compelled to give their teirutz
as to how it's an exceptional davar shebeleiv. I would think therefore
it can't be done in simpler terms.

The big problem not yet addressed is if KOM means joining the Jewish
people, how does one explain Bekhoros 30b and the need to accept every
single mitzvah? (Quoted verbatum by the SA.)

On Mon, Aug 25, 2008 at 5:40pm EDT, R Chaim G Steinmetz gave sources for
KOM for an eved:
: See Rambam Hil. Shabbos 20:14. Issurei Biah 14:9.

I don't think hil' Shabbos is relevent, since that's about shevisah in the
same sense as my animals (kesheim she'adam metzuveh al shevisas behemto...
kakh ...) -- my chiyuv that he rest, not him accepting a chivuv to rest.

IB 13:12 is interesting in that it requires KOM before avdus (as in 14:9),
and that removes the requirement for KOM after -- even though the number
of mitzvos he must do increased. (RHM: see IB 14:9 for the logistics.)

This feeds right into the other geirus discussion, as you'll note the
Rambam's presumption of a need for KOM. As I already wrote, he says this
explicitly in IB 12:17, that there are two requirements:
    kol hagoyim kulam
    shenisgayru
    veyeqablu aleihem kol hamitzvos shel torah...
    harei heim keYisra'el lekhol davar

KOM is listed alongside geirus, not as part of it, but still as a
requirement to becoming a Yisrael lekhol davar.

On Thu, Aug 21, 2008 at 07:11:03PM -0400, Meir Shinnar wrote:
: WRT RMB's bringing in the name of RYBS about understanding the rambam
: on geirut.

: It is difficult for me to be holek on RYBS, but, BMKVT...

So, why assume you're choleiq rather than leaving it as a lo zakhisi
lehavin? I would agree with RMS that RYBS's statement requires more
explanation, as the whole wording of the Rambam is about cheshash, not
about two elements of Jewish identity. So we need to find someone who
was there, no?

Explaining the Rambam IB 13:16-17 (13-15 in Teimani), RMS writes:
...
: 3) Because it was clear that their conversion was insincere, the katuv
: considers them as goyot, and that they are still forbidden.
: This may suggest that the rambam considered them as goyot - with an
: invalid conversion.
...
: The rambam then specifically rejects the notion that these women were
: halachically goyot - in hal 14.

: he says about people who converted for secondary reasons  hare ze ger.

The Rambam says that people who converted for no known reason or wasn't
taught anything about Judaism first, harei zeh geir (bedi'eved). The
phrase is not used in the second case of "noda shebishvil davar hu
misgayeir". I think this is significant, as I'll explain below.

:  veafilu noda shebishvil davar hu mitgayer - ho'il umal vetaval, yatza
: miklal hagoyim  - an explicit statement that the previous statement
: about the katuv considering neshe shlolmo as goyot is not a a halachic
: determination - they are not goyot .
: He then says, vehosheshim lo -, ad sheyitbaer tzidkuto.
...
:  (BTW, The simple pshat (and apparently the one that was accepted by
: most poskim until recently ) seems to be that even though the gerut is
: chal, in such a gerut, he does not have the hezkat kashrut of a
: regular Jew - and hosheshin lo - and presumably, one wouldn't want to
: get married to such a person unitl one is sure ....

I wouldn't phrase it that way. If the geirus is chal, why wouldn't you
want to marry into the family? His son is a mumar just because he is? My
own read of the Rambam is somewhat similar to yours, but I instead read
him as saying that we have a chazaqah that allows us to assume he's a
geir -- although we don't really know.

IOW, I"m not reading "chosheshin lo" as we are chosheish he is a Yisrael
mumar, but in contrast to "yatza miKELAL hagoyim" -- not the clear
"harei zeh geir" that the Rambam says where we have no particular reason
to suspect his motives. We are chosheshim for the validity of his geirus.

And therefore if another birur comes along, the chazaqah wouldn't
stand. (The chazaqah is already ika rei'usah, our case is "noda shebishvil
davar hu misgayeir.)

This is based on the same issue RCOG and RMF raise, that the only reason
why KOM isn't dismissed as devarim shebeleiv is because we have an anan
sahadi. But the ultimate qiyum is still beleiv.

Tir'u baTov!
-Micha

-- 
Micha Berger             It is harder to eat the day before Yom Kippur
micha@aishdas.org        with the proper intent than to fast on Yom
http://www.aishdas.org   Kippur with that intent.
Fax: (270) 514-1507                       - Rabbi Israel Salanter

R' Eli Turkel wrote:
> I don't think we ever say a beracha on a minhag that
> is not mentioned in the gemara.

Some posters have responded to this by distinguishing between (A) making a
Birkas Hamitzvah on something which the gemara does not label as being a
mitzvah, such as Hallel on Rosh Chodesh, and (B) a minhag of saying a
bracha which is not mentioned in the gemara, such as Yiru Eineinu in
maariv.

I don't see much of a difference. Either way, it is a bracha which we are
not authorized by the gemara to say, and so I want to know why it is not a
bracha levatala.

I've heard it said that since we've accepted the minhag of saying Hallel on
RC, and that minhag is binding, and therefore the bracha "Vitzivanu" is not
untrue; Hashem *does* require us to say Hallel on RC (although this
requirement is in Hilchos Nedarim rather than Hilchos RC).

However, that argument only shows the bracha to be true. But just because
the words of a bracha are true is not enough to remove it from being
levatala. If I would write a new bracha thanking Hashem for something or
other, it would be true, but it would still be levatala by reason of not
having been ordained by Chazal, no? So how are these other brachos *not*
levatala?

Akiva Miller

____________________________________________________________
Click to shop and compare great deals on new vehicles.
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/Ioyw6i3nd6M21tylU05JG7Uq1EATtJJlmG7XyH8FPYGx19hiCoi0jQ/

I joined this mailing list in the middle of this discussion, so please
forgive me if I misunderstand what is being discussed.

R' Eli Turkel wrote:

> I don't think we ever say a beracha on a minhag that
> is not mentioned in the gemara.

I think that reading the Torah publicly in synagog on the evening of
Simxat Torah is a counterexample: benedictions are recited which may
not be recited in any other context (unlike, e.g., qiddush in synagog
on Friday night, which involves two benedictions which can both be
recited in other contexts); however, the context is one that is not
mentioned anywhere in the Talmud: there is no mention in the Talmud of
a public Torah reading on the evening of Simxat Torah.

Since I entered this discussion in res medias, it is possible that I
misunderstand what R' Eli Turkel intended to say.  Perhaps he meant a
practice that is not mentioned in the gemara, and not (as in the case
of my counterexample) a practice that is mentioned in the gemara,
albeit performed under circumstances that are not mentioned in the
gemara.  For example, although you may consider it a commendable
practice to vote in the Israeli elections, it is not a practice
mentioned in the Talmud, and we do not recite a benediction "asher
qiddshanu bmitzvotav vtzivvanu lhishtatef babbxirot" before doing so.
If this is what R' Eli Turkel meant, then it will be much more
difficult to think of a counterexample.

                        Jay F. ("Yaakov") Shachter
                        6424 N Whipple St
                        Chicago IL  60645-4111
                                (1-773)7613784
                                jay@m5.chicago.il.us
                                http://m5.chicago.il.us

                        "Quidquid latine dictum sit, altum videtur"

> On Mon, Aug 25, 2008 at 01:51:55AM -0400, Moshe Y. Gluck wrote:
> : R' Eli Turkel wrote:
> : > I don't think we ever say a beracha on a minhag that
> : > is not mentioned in the gemara.

> : Kiddush in shul?

R' MB: 
> That too is a minhag to make a berakhah, not a berakhah on a minhag.
> Those berakhos are *on* yayin and qedushas Shabbos.

It's a Minhag to have that Yayin.

KT,
MYG

R' Elliot Pasik asked:? "I'd be curious to know when Rav Moshe Feinstein,
ztl, wrote about marijuana. From about the 50s through the 70s,marijuana
was more of a protest symbol, than a recreational drug? The protest was ...
I speculate that in declaring marijuana assur, and stating the reasons,
dina d'malchus dina was not weighing on the mind of Rav Feinstein, because
Jews were mostly law abiding then - I would say mentchlich. Today, there is
simply no validity for anyone to smoke marijuana, other than for medical
reasons. Its a crime.... If Rav Moshe were writing today, I speculate that
dina d'malchus dina would be addressed."

R' Akiva Miller writes:? "The teshuva which I and others referenced (Igros Moshe, Yoreh Deah 3:35) is 
dated @nd Day of Rosh Chodesh Adar 5733 - Spring 1973.? I'll grant that
marijuana was quite the symbol of protest and counterculture, but the
ability to use it as such derived specifically from its illegality. IIRC,
everyone knew that it was illegal. If you are trying to suggest that people
(such as Rav Moshe) did not realize that it was illegal, then you've 
totally lost me....."
____________

What I meant to convey was my own rumination that while Rav Feinstein well
knew of the illegality of marijuana, why didn't he mention it?? My guess is
that mentchlikeit was nearly a given, and preaching about DDD was mostly
unnecessary.? Additionally, I guess, again, that he may felt that if he
preached about catchall DDD, the protesting pot smokers wouldn't listen to
him.? He recognized that pot smoking was a form of protest, a statement not
to trust anyone over 30.? Hence, he wrote about honoring one's parents, a
powerful, emotional?message.

Elliot Pasik
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