Avodah Mailing List

Volume 26: Number 79

Tue, 05 May 2009

• 1. Re: Love/Mercy as a Factor in Halakhic (Michael Makovi)
• 2. Re: water and electricity (David Riceman)
• 3. Re: water and electricity (Micha Berger)
• 4. Re: Yeast isn't chameitz (Micha Berger)
• 5. Re: water and electricity (kennethgmil...@juno.com)
• 6. Yitzchak Allowed?? (Akeida) (harveyben...@yahoo.com)
• 7. Re: Rosh Hashanah and Easter (kennethgmil...@juno.com)
• 8. Re: Plurals (David Roth)
• 9. Re: Yitzchak Allowed?? (Akeida) (Zev Sero)
• 10. (Neviim & Possible Mistakes); Akeidah & Yizchak Follow-Up; (harveybenton@yahoo.com)
• 11. Re: [Areivim] tzioni dayenu (Yitzhak Grossman)
• 12. Re: water and electricity (T6...@aol.com)
• 13. Re: Rosh Hashanah and Easter (Zev Sero)
• 14. Re: Yeast isn't chameitz (Zev Sero)
• 15. Re: sephira question (hankman)
• 16. Re: Love/Mercy as a Factor in Halakhic Decision making - Rabbis Uziel and Halevy (Chana Luntz)

> ...This is pure
> speculation, but maybe if you pay child support to a child born out of
> wedlock, you are taking away money you really owe to your other children who
> are born?to you and?your lawful wife, ?whereas if your only marriage is an
> illicit one, to a non-Jewish woman -- then giving money to those children
> will not take anything away from any other children you have, since you
> don't have any others.
>
>
> --Toby Katz
> =============

This seems difficult.

Where "A" and "B" are men:

Perhaps "A" has one and only one biological child, born out of
wedlock. Paying child support won't detract from other children.

Perhaps "B" has a/some child(ren) born to a gentile woman, and a/some
additional child(ren) born to a Jewish woman. Here, paying child
support will in fact detract.

For example, "B" might divorce the gentile wife and marry a Jewish one
(the fact that he's paying child support suggests he is no longer with
the gentile wife!), or perhaps he first married a Jewish wife, and
later the gentile one. In any case, he might have many children,
Jewish and not, all vying for his money.

Michael Makovi

RMB:
>
> <<To really be similar, there has to be a load that does work only 
> when the
>
> circuit is closed.>>
Me:
>
> This misrepresents the CI's opinion.  He prohibited closing an 
> electric circuit because of boneh, not because of the work that it does.
Consider attaching a wire with a plug to a metal pole in the ground and 
plugging the wire in.  IIU the CI correctly he would prohibit that 
because of boneh, but it doesn't fit RMB's model.

David Riceman

On Tue, May 05, 2009 at 03:32:51PM -0400, David Riceman wrote:
: According to the CI the problem is binyan and stirah.  Why should 
: "work-doing" matter?

There is no way to know how the CI intended this to be boneh, since
there is no binyan involved. No roof, no walls. There is no "boneh" of
a keli that isn't also a ceiling or wall. There are those who think he
"really meant" makeh bepatish or even that he "really meant" to tell the
mavin that he was inventing an issur because it just seems unShabbos-dik.

Since I can't make heads or tails of what the CI was saying on the
halachic side, how can I know what part of the metzi'us was significant
to him? (I don't feel bad, neither could RSZA.) So, I was just saying
that as a parallel it's flawed if one is doing something, and the other
can at best be *used for* doing something. (A sink doesn't wash dishes,
it enables me to.) Perhaps along the lines of the "'really meant' makeh
beparish" rewriters of the CI, this difference is important. Perhaps not.

I do not know if the CI would allow turning on and off a water-wheel
by moving the sluice-gate, even if the water-wheel was doing something
mutar. (If it's milling wheat, of course not, but that doesn't help us.
But that case is a texbook hasaras hamonei'ah example, IIRC.) I would
think it's makeh bepatish regardless of this "boneh" thing.

I also don't know of the CI would prohibit closing a circuit that doesn't
do anything, although your later example of:
> Consider attaching a wire with a plug to a metal pole in the ground and
> plugging the wire in.
would be bishul. You can't run a loadless circuit (not speaking
of superconductors, they post-date my degree). If nothing else, the
resistance of the wire will turn all that voltage into heat. Even shorting
out a AA battery will make the wire very hot. Sparking and glowing,
annealing the metal (bishul), are certainly all possible. But say you
found a really tiny voltage source and completed a circuit without that
kind of heat or any load that does measurable work. Are you sure the CI
would assur? As above, I am not sure that his "boneh" is divorced from
the fact that the circuit does work.

IOW, is it a circuit, or a work-doing thing, that is the thing you can't
build? Related: RSZA writes that the CI didn't intend the closing of a
powerless circuit to be boneh.

: RTK:
:> You are not bringing the water into existence by opening the faucet.  
:> But it seems to me there is no pool of electricity sitting 
:> there someplace, no puddles of electricity sitting in the wires.

: (a) Where do you think the electrons go?  (b) What about a circuit with 
: a battery? Why isn't a battery a "pool of electricity"?

This is difficult to answer, given quantum mechanics. Electrons exist
either way. However, the electron in different energy states are to
a certain extent different beryah than one just sitting in the usual
metallic bond hanging around the same couple of atoms. And both of which
are probability waves, so the entire question of where it is is fuzzy
altogether...

And given my ignorance of the CI's knowledge of electronics as it was
understood then, I can't answer in terms of the basis of his pesaq either.

BTW, I found your discussion of a related question (with the same
odd-to-my-eye referral of the CI as "Rabbi Karelitz") on mail-jewish
Nov 2006. There is was generating electricity in a wind-up flashlight
such that the light is made without a new circuit. (Because of details
of how generators work, it requires using AC to avoid winding itself
causing an open and closed circuit, or you could shift the question to
the shake kind...) It's an LED flashlight, not bishul. People should
see <http://www.ottmall.com/mj_ht_arch/v53/index.html#VU> and consequent
subject lines before replying.

Tir'u baTov!
-Micha

-- 
Micha Berger             Today is the 26th day, which is
mi...@aishdas.org        3 weeks and 5 days in/toward the omer.
http://www.aishdas.org   Hod sheb'Netzach: When is domination or taking
Fax: (270) 514-1507         control just a way of abandoning one's self?

On Tue, May 05, 2009 at 02:23:38PM -0400, Zev Sero wrote:
: Huh?  How is that related to science, or to lack of mesorah?  It's
: precisely the mesorah that questions the identification of "orez" with
: "rice", while the science of linguistics would seem to rule out such a
: question.

See <http://www.aishdas.org/avodah/vol05/v05n073.shtml#12>, which I
wrote with NhR pp 52-54 open in front of me.

I do think I got it backwards, that RYBS insisted that we can't take for
granted that the gemara is talking about rice, at least in terms of how
we pasqen from it.

Still, even with that flip, it still runs counter his statement about
oats. In all 4 examples, the Brisker insistance was that halakhah can
only come from mesorah. (Even linguistic evidence had to come from a
matron who heard rebbe every day; not a language expert.)

Tir'u baTov!
-Micha

-- 
Micha Berger             Today is the 26th day, which is
mi...@aishdas.org        3 weeks and 5 days in/toward the omer.
http://www.aishdas.org   Hod sheb'Netzach: When is domination or taking
Fax: (270) 514-1507         control just a way of abandoning one's self?

R' David Riceman asked:
> The question came up over Shabbos whether Rabbi Karelitz,
> who prohibited opening and closing (as they say in modern
> Hebrew) an electrical circuit on Shabbos because of binyan
> and stirah, said the same thing about a water circuit (e.g.,
> opening or closing a tap in the sink).  We could think of
> no logical distinction between the two cases.

I have a suspicion (and I've mentioned this on Avodah previously) that when
the Chazon Ish connected electricity to binyan/stirah, he was not talking
about flipping the switch, but rather about plugging the device into the
wall.

The reason I say this is because of the phrase "binyan u'stirah" as opposed
to "tikkun mana". Binyan has something to do with the building in which one
is. Turning a switch on and off is the regular operation of the device;
from a binyan/stirah perspective I don't see how it is different from
opening up a folding chair, or indeed, from opening a water faucet.

I am willing to accept evidence that I am mistaken in the above. A good way
to prove this would be if someone could find that the Chazon Ish said that
a battery-operated flashlight would be a binyan/stirah problem.

But let's get back to RDR's question, where he asked what the difference is
between the switch which allows electricity to flow and the valve which
allows water to flow. My simple response is to ask if there is any
difference between the valve which allows water to flow, and a window which
allows air to flow.

Akiva Miller

____________________________________________________________
Stop collection calls.  Click here to receive information on how to improve your credit.
http://thirdpartyoffers.juno.com/TGL21
31/fc/BLSrjnsDjqJC8M4p9aaQIynUU7wOuxt2CktIU11tYkwNyXU9y5Q1wtsMQve/

 How/Why/Was
Yitzchak Avinu allowed to sacrifice (or potentially sacrifice) his own
life on the word of his Father?? Is this/was this allowed??? [Yitzchak
did not, as far as we know, receive a direct tzivui from Hashem to give up his
life.] 

If we perhaps hold that Shaliach K'Moitu, and that Avraham was an authentic
Shaliach of Hashem, (on this and other? matters?) which would therefore
perhaps obligate Yitzchak, would/should Yitzchak have required definitive
proof from Avraham's as to the authenticity of his Shlichus??? 

[And of course, if Avraham was not considered a direct/authoritative
Shaliach, vis a vis this paticular (Akeida) matter, then why would Yitzchak
have been allowed to listen to him??]

HB
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.aishdas.org/pipermail/avod
ah-aishdas.org/attachments/20090505/666a84a5/attachment-0001.htm>

R' Simon Montagu wrote:

> 1) Those other mitzvot all have other days when they can be
> performed (even though in the case of lulav we lose the mitzva
> d'oraita), but if Hosha`ana Rabba was on Shabbat the `aravot
> would not happen at all in that year.

I'm not so sure. In such a case, Erev Shabbos would be the last day of
taking the Lulav (and Aravos), so in such years we might have set Hoshana
Raba as 20 Tishre instead of 21 Tishre.

(If you want two similar situations, one is where we read Megilas Esther on
the wrong day if Shabbos gets in the way, or where "Zos Chanuka" is the
last day of lighting the Neros regardless of which day of Teves it happens
to be.)

> 2) We can learn from this that beating the `aravot is more
> important than we might otherwise have thought, and do it
> with more kavvana.

I believe that it is R' Eliyahu Kitov's Sefer Hatodaah (Book of Our
Heritage) which makes this exact point, linking the rule of the calendar to
the importance of the day.

Akiva Miller

____________________________________________________________
Click to find information on your credit score and your credit report.
http://thirdpartyoffers.juno.com/TGL21
31/fc/BLSrjnsHCkUerGF79DpQe36RD8OBZwXWddMnVnYM2gFuysmkqqh1d3YSTUM/

It seems that in Rabbinic Hebrew, both nouns in a construct (smikhut)
chain are pluralized:

talmid hakham vs talmidei hakhamim
av melakhah    vs avot melakhot
av hatum'ah     vs avot hatum'ot
(no singular)         avot nezikin
(no singular)         dinei nefashot/mamonot
(no singular)         yemot hageshamim
beit keneset     vs battei kenesiyot
beit midrash     vs battei midrashot
(no singular)         leilei shabbatot (leilei shabbat also occurs)
erev shabbat    vs arvei shabbatot (arvei shabbat also occurs once)
(no singular)         leilei pesahim
erev pesah       vs arvei pesahim (erev pesahim occurs in manuscripts
of Pesahim 10:1)
ba`al habayit    vs ba`alei habattim
get ishah          vs gittei nashim

...and many more.  The rules for construct (smikhut) are simply not
the same in Rabbinic and Biblical Hebrew.  My examples may be
confirmed by searching the Bar Ilan Project program for Mishnah,
Tosefta, and Midreshei Halakhah.  One should, of course, check
manuscripts, so I will not make any claims about frequency or
correctness, but it seems clear that these forms exist.

Kol Tuv,
David Roth

harveyben...@yahoo.com wrote:
>   How/Why/Was Yitzchak Avinu allowed to sacrifice (or potentially 
> sacrifice) his own life on the word of his Father?  Is this/was this 
> allowed??? [Yitzchak did not, as far as we know, receive a direct tzivui 
> from Hashem to give up his life.]

Avraham was a navi.  


-- 
Zev Sero                      The trouble with socialism is that you
z...@sero.name                 eventually run out of other people?s money
                                                     - Margaret Thatcher

RGDubin: 
Avraham Avinu was a navi and Yitzchak was therefore required to listen to 
him.
HB: 
1. What qualifies as a Novi (Dovid? Yehoshua?) In Avraham's Time The Rambam's (or other presently codified rules mistama did not apply) 
1b: Whatever rules may/may not have applied; did Yitzchak properly investigate them???
2. Even if Avraham was a true Novi, do/did Novis ever make (potentially fatal or otherwise) mistakes? 
3a; case 1; Dovid took a census he (aparentyl) shouldn't have; subsequently thousands died.
3b; case 2; Yehoshua wasn't careful enough that his troops/men not partake of forbidden spoils; again, many died. 
3c. Moshe was a Novi, and made mistakes with accepting the eruv rav (acc to Chazal) and many died because of it with the incident of the Eigel; 
Moshe also made a mistake (hitting v. speaking to the rock) and was therefore not able to gain entry into Eretz Yisrael. 
The first case cost many people their lives with the Eigel Incident; The
second incident cost Moshe something personal; Either way, they appear to
be mistakes made by an emesdika Novi Yisrael........ and consequences
 followed:
4. Given all of the above, even if Avraham was a verified and true Novi, should/was Yitzchak allowed to have listened to him??
HB



?

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.aishdas.org/pipermail/avod
ah-aishdas.org/attachments/20090505/fd5019c9/attachment-0001.htm>

On Tue, 5 May 2009 12:21:06 -0400 Micha Berger <mi...@aishdas.org>
wrote [on Areivim, redirected as per moderator request.  If you're
seeing this, RMB, the Avodah mod, has consented to being quoted.  The
context is whether Ben Gurion can be considered a messenger of G-d to
bring the Jews into Erez Yisrael.]:

a > Well, one still has to address megalgelin zekhus al yedei zakai...
> (Shabbos 32a) Wouldn't the fact that the messengeris a chayav imply that
> the result is a chov?

My favorite expression of this issue is a vort that I once heard from a
prominent Brisker:

[Rough paraphrase, from memory:]

Rambam (Issurei Bi'ah 10:14/10,
available here: http://www.mechon-mamre.org/i/5113.htm):

"Do not think that Shimshon who saved Israel, and Shlomoh who was
called the friend of G-d, married foreign women, in their
Gentilehood, but the secret ('sod') is as follows ..."

Bishlama the question from Shlomoh, I understand; surely the Navi
wouldn't call him 'Friend of G-d' had he sinned so grievously, but
what's the problem with Shimshon?  Perhaps he was indeed a great
sinner, but as a factual matter, he saved Israel!

We see from here, that a man who eats neveilos and treifos, who
publicly desecrates the Shabbas, "der mentsch ken nisht zayn moshian
shel Yisrael [that man cannot be the savior of Israel]"! 

Yitzhak
--
Bein Din Ledin - http://bdl.freehostia.com
A discussion of Hoshen Mishpat, Even Ha'Ezer and other matters

 
 
From: David Riceman _driceman@att.net_ (mailto:drice...@att.net) 

<<You are not  bringing the water into existence by opening the faucet.  
But it seems  to me there is no pool of electricity sitting 
there someplace, no puddles of  electricity sitting in the wires.>> [--TK]



>>(a) Where do you think the electrons go?  (b) What about a  circuit with 
a battery? Why isn't a battery a "pool of electricity"?  <<


David Riceman


 
 
>>>>>
I don't know where electrons "go" but I do know that water, even if it  
isn't flowing, is still water, whereas electrons, if they are not flowing, are  
not electricity.  Whatever a battery is -- in truth, it's a very mysterious 
 object (cf. Arthur C. Clarke, "sufficiently advanced technology  
indistinguishable from magic") -- well a battery, I say, does not "hold"  electricity 
the way a plastic bottle holds water.  When the electrons  are not flowing 
there is no actual electricity in the  battery, electricity only comes into 
being when the battery is  attached to something and that something is 
turned on and a circuit is  completed.  I have an idea that we so to speak 
"manufacture" electricity  (but we do not manufacture water) by turning on the 
device that makes the  electrons flow.  (Maybe somebody who actually knows this 
subject can  explain to me what I'm talking about.) :- )




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




_______________
**************Remember Mom this Mother's Day! Find a florist near you now. 
(http://yellowpages.aol.com/search?query=florist&;ncid=emlcntusyelp00000006)
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.aishdas.org/pipermail/avod
ah-aishdas.org/attachments/20090505/14f78cb7/attachment-0001.htm>

kennethgmil...@juno.com wrote:

>> 2) We can learn from this that beating the `aravot is more
>> important than we might otherwise have thought, and do it
>> with more kavvana.
> 
> I believe that it is R' Eliyahu Kitov's Sefer Hatodaah (Book of Our
> Heritage) which makes this exact point, linking the rule of the
> calendar to the importance of the day.


IIRC the Tur says that it's precisely because chibut arava is only
minhag nevi'im, that we're worried that if it's skipped one year people
will come to treat it lightly, so it needed chizuk.

-- 
Zev Sero                      The trouble with socialism is that you
z...@sero.name                 eventually run out of other people?s money
                                                     - Margaret Thatcher

Micha Berger wrote:

> Still, even with that flip, it still runs counter his statement about
> oats. In all 4 examples, the Brisker insistance was that halakhah can
> only come from mesorah. (Even linguistic evidence had to come from a
> matron who heard rebbe every day; not a language expert.)

I still don't get it.  You're assuming that there is an unquestioned
mesorah that shibolet shual is oats, and chadashim mikarov ba'u and
questioned that mesorah on the basis of science.  But that isn't so.
On the contrary, the main question is from Torah sources, and the
science just supports the question.  AFAIK the *only* reason to suppose
that sh"sh means oats is that Rashi translated it that way into French.
At best, that makes it a machlokes of Rashi against the Rambam and
whoever else translated it differently (not sure who those were; RSG?
Ibn Jannach?)


-- 
Zev Sero                      The trouble with socialism is that you
z...@sero.name                 eventually run out of other people?s money
                                                     - Margaret Thatcher

My previous response was just a partial as I had not yet read the next two citations that RMB posted.

I appreciate the direction in which the ideas from R' Elozor Reich,
Maadanei Yom Tov, and the Chinuch move, but still feel the answer remains
somewhat nebulous and open to further questions. This notion of the
"virtual" count of day "zero" in arrears with the Chinuch's explanation
leaves one wondering why it should be virtual? After all if the count is in
arrears, and the work and anticipation of the mitzvos of the first day are
now over, so why not count for real? Then of course one would have the
problem of the final day (the day before Shavuous) not being counted unless
we actually count FIFTY days (as the pasuk actually says).  This brings us
to the obvious question of the seeming contradiction in the pesukim in
Emor, where we are told to count 50 days, but consisting of only 7 complete
weeks (49 days).  Temimos in the pasuk is only an adjective to weeks not
days, which I guess are temimos by inference from weeks, ie a complete 49
day/7 week period. But this could leave u
 s with the 1st virtual day (1st of Pesach) not necessarily complete
 (outside the "complete" 7 week period). This leaves the pshetele about the
 reason for the extra day to the 1st Shavuous (Matan Torah) as less than
 compelling. This does however answer why we count the weeks at the 6/7
 point since if this is in arrears it is actually 7/7 point and thus in
 arrears for the complete week.

I also think the ordinal/cardinal issue is a red herring as is the notion
of temimos as an answer to my question. They do not imply a count of days
in arrears, as I could hear these going either way - neither being more
compelling than the other. We seem to want to dance at both chasunas, its
49 that are also fifty that are sort of in arrears but not really as we
only count 49 with 49 brochos (which implies count in advance).

Also why the switch from shabosos to shovuous respectively in Emor and Re'ai?

Still somewhat confused,

Kol Tuv

Chaim Manaster
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.aishdas.org/pipermail/avod
ah-aishdas.org/attachments/20090505/0ee78a1d/attachment-0001.htm>

RYG writes:

> I think that Justice Holmes would be horrified at the insinuation that
> his jurisprudence did not qualify as "emet l'amito" and "btzedek
> tishpot amitecha" :)

Sorry?  You quote the story as follows saying:

" I [Judge Hand] remember once I was with [Justice Holmes]... I said to him:
"Well, sir, goodbye. Do justice!" He turned quite sharply and he said: "Come
here. Come here." I answered: "Oh, I know, I know." He replied: "That is not
my job. My job is to play the game according to the rules."

Now every English translation I have seen of the Torah translates tzedek as
justice (is not Justice, Justice you shall pursue up in a number of famous
American courtrooms?).  And I would extremely surprised if Justice Holmes
was not conversant with the King James version of the bible and/or similar
translations.  And yet here you have Justice Holmes emphatically stating
that he does not do justice - he plays by the rules.  In other words, he has
stated unequivocally to Judge Hand that btzedek tishpot is not his job.

In yet another quote you have Justice Holmes saying that he "hates justice".
Not that he hates compassion, which would at least be slightly closer to
what Rav Uziel is saying, but that he hates justice.

Can you imagine Rav Uzziel saying that "he hates tzedek" and that tzedek is
not his job?  The opposite - his tirade as you call it is to state precisely
that tzedek is his (and Rav Toledano's) job, that this is what he is
required to pursue.  Nor does he denigrate rachamim - he requires rachamim
in the way that society must relate to these orphans with living fathers and
the way that Rav Toledano must so instruct society.

What he does say, it seems to me, is that there are times when it is wrong
and incorrect to use rachamim in judgement, and if you do so, you will not
then get to tzedek.  

Now the key wording in the paragraph above is "there are times".  Your
interpretation appears to be to drop that wording - ie that what he is
saying is that "it is wrong to use rachamim in judgement, and if you do so
you do not then get to tzedek" - at least if you understand judgement to
mean when judging between litigants (ie ben adam l'chavero).

Whereas I am not convinced this is in the text you have provided, which is
why I have added in the words "there are times".  I could not see in the
piece you provided a statement that it is *never* correct to use
considerations of rachamim, but only that there is certain situations where
one might be tempted to use rachamim and where the Torah warns us off it.
If it were correct that one *never* used rachamim in din, then it would have
been enough for him to say "ain m'rachamim b'din" - the k'lomar is
unnecessary.  But what he does say is "ain m'rachamim b'din l'ish al
cheshbon chavero".  So then the question becomes, what is meant by "cheshbon
chavero"  and what is enough to make the din burur c'voker.

I wrote:

> > not totally clear how the chips fall - after all, is it ultimately
> > compassionate to encourage the production of children to be born in less
> > than ideal circumstances, or is it more compassionate in the long run to
> > deny maintenance if it will lead to fewer of such children being born?

And you replied:

> This is all perfectly reasonable, but not the argument that Rav Uziel
> makes here.

Not exactly, but I think it underlies it.  The question is - why, why is
that that we are not to be merachem b'din.  For that we need to understand
two things - one of course is the nature of din, but the second is the
nature of rachamim.  Is rachamim really rachamim if applied in situations of
din?   If it is not, then one can better understand why one is enjoined
against rachamim in din, because while one might think one is applying
rachamim, in fact one ends up neither with rachamim nor tzedek.

...
I wrote:

>>We have specific commandments in the torah about how we approach din.  One
> >of these is that we must not
> > favour the poor man in judgement.  Now the instincts towards favouring
> the
> > poor man are obvious - if we look at the two parties, it often seems
> hard to
> > justify why one man should be rich and another should be poor, and
> therefore
> > the temptation to redress the balance a bit is very strong.  And in many
> > ways - in terms of the two of them, one might argue that, in the
> > circumstances, that is the "just" thing to do.  But in terms of overall
> > society, what such a judgement will do is encourage the search for "deep
> > pockets".  But because of the nature of judgment, not all deep pockets
> will
> > be available (as it would in a pure redistributive system, where the
> money
> > would go in and out through a central repository such as government).
> So
> > what would then happen is that there would arise a rule that deep
> pockets
> > plus proximity equals liability.  But proximity is again a matter of
> luck,
> > so we end up with a situation that neither deals with overall justice
> (as a
> > redistributive society would) nor with justice between the two parties
> seen
> > in isolation of their background possessions.  And it seems hard to see
> such
> > a scenario as a truly compassionate one at any level - despite the
> judging
> > thinking he is being compassionate in giving the original judgement.
> >

> > So the logic for the Torah rule about using extraneous circumstances to
> > drive judgement seems soundly based, even if you were not talking about
> > a specific issur.  But here there is a specific issur - ie the case 
> >being raised here would seem to fall fair and square with the context of
the
> > particular circumstance that the Torah requires not to be taken into
> > account. A child seeking maintenance is poor, and that is what seems to
> be
> > driving Rav Toledano.  But to make the basis on which a child is
> entitled to
> > maintenance the poverty in which it finds itself not only puts it in
> direct
> > contradiction with the halacha of not favouring the poor, but also leads
> to
> > all sorts of potentially negative ramifications for the society as a
> whole.

And RYG replied:

> This is all very thoughtfully argued, but I don't see any hint of this
> line of reasoning in Rav Uziel's own words.  He focuses on the
> fundamental and inherent injustice of commingling Din and Rahamim, and
> not on broad, general questions of whether his ruling will lead to "all
> sorts of potentially negative ramifications for the society as a whole".

I agree he does not focus specifically on the broad general question
regarding the implications for society as a whole - but where do you see
that he "focuses on the fundamental and inherent *injustice* of commingling
Din and Rahamim".  I agree that he focuses on the incorrectness of it -
because the Torah tells us that it is incorrect to give priority to the poor
over the rich.  But - let us say that this injunction of the Torah is a
chok?  We have to do it this way because the Torah tells us to, whether it
makes sense or not.

I agree with you in that I do not believe that Rav Uziel sees it as merely
an incomprehensible chok.  But injustice is a very strong word (one to be
hated, according to Justice Holmes, with chok - or "rules of the game" to be
preferred).  How you understand Rav Uziel's understanding of why the Torah
tells us not to have compassion on the poor man will then drive the extent
to which you will extend the principle.  What are the problems involved in
adapting the din based on changes in time and place and feelings of rachamim
as articulated by Rav Uziel?  That last paragraph you quote sees it as
intrinsically problematic because it is not G-dlike.  But what is not
G-dlike?  Is it merely because it is wrong to co-mingle the two (perhaps
like shatnez or basar b'chalav)? is it because it is unjust to the other
litigant (as it I think you are deriving)? or because it distorts society
and generates a groundswell of injustice throughout society.  I don't
believe Rav Uziel says, at least in the pieces you have quoted (the clearest
reference is to al cheshbon chavero), one way or the other, but what I
wanted to show was that there are various options - something it seemed to
me that you had glossed over.

> For an example of the sort of thing I have in mind, see SA (EH 52:1)
> where we rule that a woman must remain an Agunah for her entire life if
> she cannot meet the financial commitments that she made at her Erusin.
> Helkas Me'Hokek (3) notes that it is 'mashma kezas' that this is even
> if the woman has not acted in bad faith, where she did have the
> wherewithal but suffered a subsequent financial reverse.  [Others
> disagree - see Ozar Ha'Poskim there.]  Now, if an Arus took advantage
> of this Halachah and his Arusah sued him in Beis Din, the judges'
> sympathy would quite likely be overwhelmingly with the woman, but it is
> certainly forbidden to rule against the Halachah.

Well, not entirely.  In the case of bad faith I am not sure that the judges'
sympathy would necessarily be with the woman.  It is a principle of English
law that "one who seeks equity, must come with clean hands" and a case of
bad faith would hence be rejected.  A similar sentiment would not be the
slightest bit unreasonable amongst the judges - ie a view that rachamim is
inappropriate, and might be tainted, in cases of bad faith (ie you need
deserving, and not undeserving, poor).  One you say that, at least according
to some poskim, a lack of bad faith changes the judgement, you are already
into the territory of rachamim in din, it just needs an absence of bad faith
to be invoked.

And even if you take the opposing view - one could still say that this is a
case where it is inappropriate to apply rachamim, because it needs to act as
a deterrent to people entering into financial commitments in order to "catch
a good catch" without thinking through the risks - ie there is a need to
discourage this kind of financial commitment at the time of erusin and/or
the giving rise to issues of asmachta - which might then undermine all such
commitments, despite the fact that it ends up being hard on the individual
woman so caught.  What if we could construct a scenario where it was not al
cheshbon chavero - ie somehow the man got compensated from some other
source, so he was in fact not out of pocket (or in the case of the father -
if say the state paid fathers but not mothers child support, so if the
father was not acknowledged as father, the state would pay nothing, and if
he was, he would be paid and it would then go to the child - would we still
say it is wrong to invoke rachamim?).  Would we still insist that, if the
husband was requiring the woman to pay *out of spite* and holding her an
aguna (and presumably refusing to accept the compensatory payment from
somewhere else), that was OK because according to strict din, she had to pay
him, and nothing else will do? If not, what does that tell us?

> Yitzhak


Regards

Chana



------------------------------


Avodah mailing list
Avo...@lists.aishdas.org
http://lists.aishdas.org/listinfo.cgi/avodah-aishdas.org


End of Avodah Digest, Vol 26, Issue 79
**************************************

Send Avodah mailing list submissions to
	avodah@lists.aishdas.org

To subscribe or unsubscribe via the World Wide Web, visit
	http://lists.aishdas.org/listinfo.cgi/avodah-aishdas.org
or, via email, send a message with subject or body 'help' to
	avodah-request@lists.aishdas.org

You can reach the person managing the list at
	avodah-owner@lists.aishdas.org

When replying, please edit your Subject line so it is more specific
than "Re: Contents of Avodah digest..."