Avodah Mailing List

Volume 25: Number 334

Fri, 19 Sep 2008

• 1. Re: rape (Micha Berger)
• 2. Strange Story (SBA)
• 3. Re: Strange Story (Micha Berger)
• 4. Re: bat mitzva "bo bayom" (Zev Sero)
• 5. Re: burial (T6...@aol.com)
• 6. prozbul (Eli Turkel)
• 7. Re: prozbul (Micha Berger)
• 8. Re: prozbul (Micha Berger)
• 9. Re: Strange Story (Gershon Dubin)
• 10. Trends in Psak (Micha Berger)

On Thu, Sep 18, 2008 at 01:14:17AM +0300, Eli Turkel wrote:
:> where do you see that 'the Ran's theory is innovative, and not
:> necessarily the consensus view'

: The Ran's view is very controversial because it implies the need of
: a system beyond halacha. Why learn choshen mishpat or
: meschet Sanhedrin if the king will set up his own laws.

I think a dual attitude is not just incorrect, but wrong. It's "render
unto Caesar" and "separation of church and state", alien ideas to
Yahadus. That doesn't have to mean that society was left unprotected.
Rather, we can question whether such protection is "beyond halakhah".
"Uvi'arta hara'ah miqirbekha" is a pasuq. WRT benei Noach, it's
acknowledged as halakhah. Yes, the details are left to man.

The situation parallels a taqanas BD, where the values derive from the
halakhah and the legistlation extends halakhah, rather than considered
a second system in addition to it.

This touches on what I like to call the "barrel paradox". To quote
myself from v11n53:
> In BM 83a, when Rabah bR Huna hired workers to carry barrels of wine for
> him, and they accidentally (apparantly through a lack of care) broke
> them. Rava, who served as the posheir between them, required Rabah to
> (1) return the shirts he took from the workers as collateral; (2) not
> bill them for the loss. When challenged on it, "Is that the din?" Rava
> replied yes, based on "lema'an teileikh bederekh tovim" (Mishlei 2:20).

> The workers then complained that they were broke and couldn't buy
> dinner, so Rava orders Rabah to (3) pay them for the day's work? Again,
> "Is that din?" To which Rava quotes the rest of the pasuq, "ve'orchos
> tzadiqim tishmor".

> This involves a basic paradox about lifnim mishuras hadin. There exists
> a chiyuv in din to go beyond the exact letter of the din. (Obviously
> you can't apply this recursively, im kein ein ladavar sof.)

Menuval birshus haTorah is also a "barrel paradox" -- since it's assur
to be such a menuval, it's not really birshus haTorah.

Similarly, here we have a chiyuv to preserve the law beyond the
requirements of the law. And, like pirsumei nisa, shevus beshabbos,
melakhah on ch"m, humans are left to decide what that means in
particular. Just as Rava pasqens on "derekh tovim".

Tir'u baTov!
-Micha

-- 
Micha Berger             Despair is the worst of ailments. No worries
mi...@aishdas.org        are justified except: "Why am I so worried?"
http://www.aishdas.org                         - Rav Yisrael Salanter
Fax: (270) 514-1507

From: "Micha Berger"  [on Areivim]
> The only teshuvah I know of about such things is by the Tzitz Eliezer.
> He writes about the case (I believe it's hypothetical) where a husband
> goes through such surgery and then refuses to give a get.

> The TE pasqens that no get is needed. Qiddushin is only chal between
> a man and a woman, and so once the husband ceased being a man, the
> qiddushin evaporated on its own.

So is the wife a gerusha/a penuyeh or what?

And what about the children? Yaamod Reb Ploni ben ????

And what if he/she/it is a Cohen?  What are the children?

I am sure we can put together many, many more fascinating questions.

SBA

On Fri, Sep 19, 2008 at 12:46:36AM +1000, SBA wrote:
: So is the wife a gerusha/a penuyeh or what?

I would think that WRT a kohein, she would be an almanah. That's the
other situation where qiddushin autometically ends due to a lack of man
for it to be chal upon. Not that I think it would apply WRT yerushah;
I picture the woman retains the assets of her former self. The TE's
argument was about qiddushin disolving, not that it was ke'ein misah.

: And what about the children? Yaamod Reb Ploni ben ????
: And what if he/she/it is a Cohen?  What are the children?

Since the past doesn't change, why would the yichus of any children born
of the marriage be in question?

Tir'u baTov!
-Micha

-- 
Micha Berger             Rescue me from the desire to win every
mi...@aishdas.org        argument and to always be right.
http://www.aishdas.org              - Rav Nassan of Breslav
Fax: (270) 514-1507                   Likutei Tefilos 94:964

Micha Berger wrote:

> It's like women are in the normal course of things put in danger, and
> therefore "close" to the mal'akh hamaves who then prosecutes them for
> their actions.

Yes, childbirth was considered inherently dangerous, not because of
anything to do with the actual process of birth but simply as a fact of
nature, "min shmaya ka-radfu lah".  That's why once the baby has crowned
he's no longer considered a rodef, and he can't be killed to save the
mother's life; it's not the baby who's endangering her, it's the fact that
she's at this mysterious dangerous time, being judged by BDShM.  ISTM that
the reason this view developed was that childbed fever was such a terrible
killer, and its cause was completely unknown; women were dying for no
discernable reason, clearly unrelated to the actual trauma of childbirth,
so people concluded that this was simply an unalterable law of nature,
that when a new life comes into the world it's a time of din, and there's
a high risk that a life will be taken out as well.  It's very difficult
for us to relate to this, now that childbed fever is rarer than bubonic
plague.

The above is of course speculation, but it seems to me to make sense.
But if I can indulge in a wild speculation, perhaps this could explain
why as recently as the early 19th century the poskim seem unanimous that
a woman *must* bench gomel after birth, and yet I think I've only ever
seen this done once.  Perhaps the practise was indeed common, but fell
out of favour after childbed fever was conquered and people started to
think of childbirth differently.  Once it was thought of as no more
dangerous than we think today of overseas travel, women stopped saying
gomel for the same reasons that they don't seem to say it after overseas
travel (whatever those reasons in fact are).

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

 
 
From: Gershon Dubin _gershon.dubin@juno.com_ (mailto:gershon.du...@juno.com) 

Not "seem  to be";  ein malinin es hameis bYrushalayim.


On Thu, 18 Sep 2008  "Eli Turkel" <elitur...@gmail.com>
writes:
> This does not seem  to apply to Jerusalem where funerals seem to
> be at night even when  important people can't come. Of course
> there was no eglah arufah in  Jerusalem




>>>>>
To my surprise, I recently heard of a case where  somebody passed away in Y-m 
on a Friday and the burial was delayed until Sunday  while waiting for a son 
to arrive from America.  Until I heard about this I  thought it was actually 
against the law to delay a burial in Y-m.  My  father passed away on a Shabbos 
and the levayah was that night around  midnight.  They have procedures in 
place to advertise levayos quickly --  mainly paid sound trucks that go around 
various neighborhoods announcing the  levaya.  Even on such short notice large 
numbers of people will drop  everything and go to a late-night levayah of 
somebody they knew.


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






**************Psssst...Have you heard the news? There's a new fashion blog, 
plus the latest fall trends and hair styles at StyleList.com.      
(http://www.stylelist.com/trends?ncid=aolsty00050000000014)
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Due to various remarks let me rephrase my confusion over how prozbul works

1. Mishna says that Hillel institued prozbul which consists of handing over
the debts to Bet Din
IMPLICATION: This works because debts owed a public institution are not
affected by Shemitta
IMPLICATION: Giving the debts to bet din is a Torah way to avoid shemitta
note implications can be wrong

2. The gemara in Gittin brings a disagreemement between Abaye and Rava
how prozbul works
Abaye: Shemitta today is only derabbanan
Rava: Hefker ber din hefker

Rashi (and Raavad) interpret Rava as holding shemitta today is from the Torah
Tosafot: Even Rava holds thar shemitta is derabban and is adding to Abaye

Rambam says prozbul works because shemitta is derabbanan
Radvaz: Rambam paskens like Abaye!!
Kesef Mishna: Rambam learns gemara like Tosafot

Question #1 : What is the connection between the gemara in Gittin and
the Mishna. i.e. what does giving the debt to bet din accomplish especially
according to Rava. Why is giving debt to bet din by itself not enough
without hefker bet din

Question #2: Exactly what is the innovation of Hillel? Did he invent giving
a debt to bet din? or is it a Torah law that it works

Question #3: Today we no longer actually give the debt to bet din instead
we simply sign a document assigning it to them signed by witnesses.
How does this help? Furthermore the gemara seems to require possession
of land - what happened to this requiremnt?

Thanks

-- 
Eli Turkel

On Thu, Sep 18, 2008 at 06:25:26PM +0300, Eli Turkel wrote:
: Question #1 : What is the connection between the gemara in Gittin and
: the Mishna. i.e. what does giving the debt to bet din accomplish especially
: according to Rava...

Machloqes Rashi and Tosafos what Raba is saying -- is he answering the
question on Abayei, or disagreeing with Abayei's peshat and giving a
new answer the the original question?

Rashi: Rava is answering the same question as Abayei. Shemita is deOraisa,
and Hillel invoked hefqer BD hefqer to circumvent shemittah altogether.

Tosafos: Rava is defending Abayei. Shemitah is deRabbanan. (Perhaps we can
say pruzbul is sufficient lezeikher for the deOraisa.) And Hillel didn't
need a BD gadol mimenu bechokhmah uveminyan than AKhG because he didn't
pasqen against them, he used hefqer BD hefqer. Implied in Tosafos is that
Hillel would not have even found such a loophole if it were a deOraisa.

If the mechanism is hefqer BD hefqer, how would the details of the
mechanism for getting the loan to BD be me'aqeiv?

(I again recommend my notes at
http://www.aishdas.org/asp/2007/09/shemittah.shtml where I discuss this
3 tier machloqes (Rashi-Tosafos; maybe Abayei-Rava; Rebbe-Chakhamim)
the topic of whether shemittah is deOraisa (Ramban) deRabbanan (Rashi,
Tosafos) or not even that (Meiri), and a whole bunch of other things --
way too much for Rafi to have fit into a bar mitzvah derashah. Even
cut down, he ran long.)


Tir'u baTov!
-Micha

-- 
Micha Berger             It is a glorious thing to be indifferent to
mi...@aishdas.org        suffering, but only to one's own suffering.
http://www.aishdas.org                 -Robert Lynd, writer (1879-1949)
Fax: (270) 514-1507

On Thu, Sep 18, 2008 at 06:25:26PM +0300, Eli Turkel wrote:
: Question #1 : What is the connection between the gemara in Gittin and
: the Mishna. i.e. what does giving the debt to bet din accomplish especially
: according to Rava...

Machloqes Rashi and Tosafos what Raba is saying -- is he answering the
question on Abayei, or disagreeing with Abayei's peshat and giving a
new answer the the original question?

Rashi: Rava is answering the same question as Abayei. Shemita is deOraisa,
and Hillel invoked hefqer BD hefqer to circumvent shemittah altogether.

Tosafos: Rava is defending Abayei. Shemitah is deRabbanan. (Perhaps we can
say pruzbul is sufficient lezeikher for the deOraisa.) And Hillel didn't
need a BD gadol mimenu bechokhmah uveminyan than AKhG because he didn't
pasqen against them, he used hefqer BD hefqer. Implied in Tosafos is that
Hillel would not have even found such a loophole if it were a deOraisa.

If the mechanism is hefqer BD hefqer, how would the details of the
mechanism for getting the loan to BD be me'aqeiv?

(I again recommend my notes at
http://www.aishdas.org/asp/2007/09/shemittah.shtml where I discuss this
3 tier machloqes (Rashi-Tosafos; maybe Abayei-Rava; Rebbe-Chakhamim)
the topic of whether shemittah is deOraisa (Ramban) deRabbanan (Rashi,
Tosafos) or not even that (Meiri), and a whole bunch of other things --
way too much for Rafi to have fit into a bar mitzvah derashah. Even
cut down, he ran long.)


Tir'u baTov!
-Micha

-- 
Micha Berger             It is a glorious thing to be indifferent to
mi...@aishdas.org        suffering, but only to one's own suffering.
http://www.aishdas.org                 -Robert Lynd, writer (1879-1949)
Fax: (270) 514-1507

-- Micha Berger <mi...@aishdas.org> wrote:
<<I would think that WRT a kohein, she would be an almanah>>

So we need to add a category to "yesomah bechayeh ha'av", i.e., almana bechaye haba'al <g>

Gershon
gershon.du...@juno.com



____________________________________________________________
Click to make millions by owning your own franchise.
http://thirdpartyoffers.juno.com/TGL2141/fc
/Ioyw6i3m6iRva9N7E63Qx0i7jWu5q5AN04Tz0HarM6a7zkCDSCQxTM/

 From the blog Ishim veShitos
<http://ishimshitos.blogspot.com/2008/09/two-trends-in-psak
-autonomy-of-posek-vs.html>
(a/k/a <http://tinyurl.com/43uap9>) and a response by Avakesh
<http://www.avakesh.com/2008/09/the-three-ways-of-psak.html> (a/k/a
<http://tinyurl.com/4s2nf9>). I don't know who writes IvS, but Avakesh
is by one of the chevrah.

The topic is perpetual here, so I thought is was worth reposting in
full.

:-)BBii!
-Micha

PS: A question for Areivim: why are the authors of 2 blogs that are
entirely Torah writing anonymously?

--- Ishim veShitos (transliterations mine) ---

Friday, September 5, 2008
Two trends in P'sak:
Autonomy of the posek vs. the importance of precedent

[Very rough draft - I really think the matter deserves a complete analysis
- which I am not qualified to write]

In my study of Halachic literature, I have often noticed that there are
two different schools of thought among posekim.

Among some Posekim[1], there is an attitude of "yiqov hadin es hahar". The
posek analyses the sources and rules based on his own understanding of
them. Even if his predecessors ruled differently or understood the sources
differently - ein ladayin els mah she'einav ro'os and halakhah kebasra'i
as explained by the Rema [2] (CM 25). This school considers the autonomy
of the Posek to be central whereas precedent is only important insofar as
it helps the Posek clarify the sources but carries no weight on its own.

At the opposite extreme, lies those posekim who feel it necessary to cite
and discuss every possible precedent on the issue[3]. These will rarely
dismiss the earlier poskim based on their own reading of the sources but
instead will insist that one must try to follow all opinions. According
to this school, the fact that an eminent authority cites an opinion is
itself of Halachic weight (perhaps of even greater Halachic weight then
his own reading of the sources) and the autonomy of the Posek is limited.

There are of course a variety of positions between the two extremes. I
believe it might be instructive before examining any posek to first
identify to which school of pesak he belongs to analyse his pesak
accordingly.

[1] The best example of this school of thought is R' Yaakov Emden who
was fiercly independant in his pesakim (See for example this post in
which the Yaavetz cites his father that - "Any dayan who is not willing
to erase a seif in SA is not worthy of ruling. Mor U' Ketziah is simply
full of examples in which the Yaavetz does just that.), then one might
point to the Rogatchover who felt himself obligated to the Rambam only
(note his correspondence with the SE that Marc Shapiro discusses in his
book), and the final and most influential authority in this group is the
Aruch Ha-Shulkhan who similarly is not afraid to argue against any of his
predecessors if his own reading of the sources leads to a different ruling
(See for example his ruling concerning one who skips p'sukei d'zimra if
he need complete it after davening). R' Moshe Sternbuch in his Teshuvot
V'Hanhagot is also roughly part of this group as he rarely cites Acahronim
(but see his Hakdamah) but has his own highly original method of Pesak
(see Tradition, R' Moshe Sternbuch's Halachic Novellae).

[2] Y. Ta Shema has an article on the principle of Halacha K'Basrai that
is somewhat relevant here.

[3] The most important posek from this school of thought is the Mishna
Berurah who cites every Acharon possible and considers them all obligatory
(to some degree at least - cf. B. Brown's article in Contemporary Halacha
on Soft-Stringency in the Mishna Berurah). A comparison - seif by seif of
the Mishna Berurah and the Arukh HaShulkhan's stance to various issues
would be most instructive (the new AS's with the MB on the bottom can
give you some idea of the differences between them).

I do not know if Chacham Ovadiah belongs in this category. True he is
careful to cite alll the Acharonim on any issue but I don't know to
what extent he considers them obligatory. Perhaps he is simply trying
to gather all the arguments relating to the subject together. The same
applies to R' Yosef Zechariah Stern. (Benny Brown's article on "Hachmarah"
should also be relevant.)

--- Avakesh ---

September 15, 2008
The three ways of Psak

Ishim V'Shitot has an interesting post on trends in psak. 

Here is my comment:

Halachah k'basroi (the law is according to the latter authority) is
very relevant here. In fact, it is pivotal. As Prof. Ta Shma (whom
you referenced in your article and who goes through the sources; my
application of his points is my own) points out, the Sephardic and
Ashkenazic understanding of this principle differ greatly.


Among Ashkenazim there are two views.

1. The latest PUBLISHED posek is the basroi and we follow him (the
currently accepted approach). The basis for this understanding is that
although we are dwarfs, we stand on the shoulders of giants and see
farther than they. A vriant of this is the idea of "Posek Acharon",
which is quite recent and novel and is applied mostly to R. Elyashiv.

2. The posek who is NOW considering the question is the basroi and has
the right to follow his own judgment even against previous poskim.R.
Moshe Feinstein was such a posek. He often posed a question and gave a
novel answer and then based a leniency on his own answer. This truly
took courage but was not an unncommon approach among Litvishe poskim
in the past. Not having many seforim and little access to acharonim
except the commentareis to Shulchan Aruch due to poverty has, I think,
a lot to do with it. Aruch Hashulchan is a mild proponent of this view
as well, having no compunctions about relying on his own judgment,
a very Litvish approach.


3.Among Sephardim, all authorities are important, because halacha k'basroi
is a principle that applied to Amoraim and not in contemporary psak.
So one collects all of them and follows the majority, which is the
approach of R. Ovadiah.This is, of course, beyond the capacity of mere
mortals, especially in these days of many new published manuscripts,
but the Mishna Berura in Biur Halacha sometimes attempts to use this
approach as well. In his hands, it tends toward ruling strictly, so as
to take into account substantial minority opinions.

-- Comment on Avakesh --
wolf2191 [author of IvS]
September 16, 2008 at 09:33 PM

    Thanks for your comment! I shall try to respond at greater length in a
    future post. On the Chafetz Chaim, see B. Brwon's article on Soft
    Stringency.. - in Contemporary Jewry. Accoridng to his understanding the
    Chafetz Chaim was not in fact much of a Machmir but he kept all options
    open leaving it to the individual to decided on which level he is.

    I can't agree with your descripton of Chacham Ovadiah as representing
    normative Sephardi Psak, R' Yosef Zechariah Stern has the same
    methodology and he was Ashkenazi.

-- Other comments from IvS --

ADDeRabbi said...
    September 6, 2008 1:51 PM 

    Excellent post.
    As soon as I started reading, I wondered if you were going to address
    Rav Ovadia. He lines up precedent better than anyone, but definitely
    has reaches independent conclusions.
    IMHO, only when a posek makes a decision based on what he believes
    is the truth can be called "psak". is a rav says "we, such and such
    acharonim are machmir", that's not psak.
    The truly great poskim never had a problem expressing an independent
    position (i understand that this might be construed as a "no true
    scotsman"-type statement; so be it).

Anonymous said...
September 7, 2008 4:47 PM 

    My own gut reaction was that this breaks down, at least in modern
    times, between Sephardic and Ashkenazic (esp. Lithuanian)poskim,
    the latter seeming to almost take pride in their ignorance of a large
    part of Jewish halakhic literature. E.g. look at the sources at the
    end of any volume of Iggros Moshe.

Eliyahu said...
September 15, 2008 8:32 PM 

    Let me try to give my understanding. Perhaps someone can then clarify
    whether I correctly understand the sources.

    IIUC the basic accepted rules of pesak are found in SA CM25 (Hilchot
    Dayan She-Taah)The latter siman deals with the situation of a Dayan
    or a Posek who has erred. A posek may only be said to have erred
    in halacha if he has erred as to a Devar Mishnah (ruling against
    the Talmud or perhaps against the Shulchan Aruch) or the Sugya
    de-Almah, a consensus among poskim as to a halacha. Where there is
    no binding Devar Mishnah or Sugya de-Alma, the halacha is subject to
    the halachically limited discretion of the posek to apply his logical
    reasoning to determine the halacha based mainly on an understanding of
    the Gemorah. The posek if he is a "chacham gadol hayodeah lehachriah"
    must attempt to come to a decision if at all possible. He may not
    fall back upon the klallim applicable to safeikot (such as at in
    the Shach at the end of YD 242)unless he can not otherwise reach a
    definitive conclusion.

    I think that this requirement that a posek reach a conclusion is
    also implied in the phrase: "...Ke-shem she assur lehatir et ha-assur
    kachassur leasor et ha-mutar(Talmud Yerushalmi Terumot end of c. 5, p.
    30b (standard editions) and the end of Chaggigah c.1 which is cited
    in SEMAG Assiin 111 and in the Hagaot Maimoniot, Hilchot Mamrim,
    1:5 (The latter references are from Y.Y. Brunstein, Avnei Gazit).

    I would therefore think that posek must make a real effort to
    determine the actual halacha where it is not already determined as
    either a devar mishna or a sugya de-almah.

    I haven't looked at the sources brought in our blog, above
    however perhaps I can speculate that the Sefardic poskim cited
    above are looking to the majority only if the posek can not reach
    a definitive conclusion. As far as the Ashkenazim: Rav Moshe,
    of course, does attempt to reach such a conclusion. I would also
    assume that those who say "halacha ke-batrai" among the Ashkenazim
    and follow the latest contemporary poskim are defining the "sugyah
    de-almah" as being synomous with "halach ke-batray" although I would
    assume that such would still require concensus among those "batrai"
    to then create a "sugyah de-almah". Unless of course Devar Mishnah
    and Sugyah de-almah refers only to the Amoraim and I understand
    that whether the latter is correct or whether we can have the SA
    (or later accepted sefarim) as a Devar Mishnah and poskim as Sugyah
    de-almah is itself a disputed issue.

    I would appreciate any comments as to whether I understand the
    above correctly.

Wolf2191 said...
September 15, 2008 8:46 PM 

    "Ke-shem she assur lehatir et ha-assur kachassur leasor et ha-mutar"

    There is a fascinating Chazon Ish which neutralizes this statement.
    See Benny Browns article on Hachmara.
    Cf. Tosafos in Avodah Zarah 7a - s.v. Ha-Nishal.

Eliyahu said...
September 15, 2008 10:23 PM 

    > See Benny Browns article on Hachmara.

    Thank you. I would appreciate reading the article. However, the link
    took me only to the Union Catalogue. Could you please provide the
    journal name and citation.

    > Cf. Tosafos in Avodah Zarah 7a - s.v. Ha-Nishal.

    But doesn't this Tosfot deal with whether someone can re-ask his
    sheilah to another chacham. My reference, IIUC, was as to whether
    a Rav could declare something assur without sufficient iyun as to
    whether there were in fact grounds to declare it muttar and thus he
    had caused an unnecessary monetary loss.

Wolf2191 said...
September 15, 2008 10:28 PM 

    You are correct about that Tosafos. But he quotes the Yerushlmi you
    mention and dismisses it (if I remember correctly).


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