Avodah Mailing List

Volume 28: Number 212

Wed, 26 Oct 2011

• 1. Re: mikva use (Moshe Y. Gluck)
• 2. Re: mikva use (Zev Sero)
• 3. mikvah use (Eli Turkel)
• 4. eating fish out (Eli Turkel)
• 5. Re: eating fish out (Micha Berger)
• 6. Re: More on Married Women Should Not Wear Wigs (Micha Berger) (Micha Berger)
• 7. Mikva use (Mordechai Ackerman)
• 8. Re: mikvah use (Zev Sero)
• 9. Re: eating fish out (Zev Sero)
• 10. Re: Gezeiras haKasuv (Harry Maryles)
• 11. Re: The sukkah on Shemini Atzeret controvers (kennethgmiller@juno.com)
• 12. Re: Gezeiras haKasuv (Micha Berger)
• 13. Re: The sukkah on Shemini Atzeret controversy (Micha Berger)

R' SZN:
> 1. who should control who is allowed to toivel? 

Whoever owns the mikvah de facto controls who is allowed to toivel. Since,
IIANM, the Mikvaos are paid for by the government, they can control it,
disregarding Halachah and Minhag Yisroel at their discretion. So any
communities bothered (rightly so) by this, should, I think, build their
own, private, mikvaos.

In other words, this is part of the problem that religious Jews have in
Eretz Yisroel, where church and state are not separated.



On Tue, Oct 25, 2011 at 06:59:58PM +0200, Goldmeier Family wrote:
> what exactly is the issur of pre-marital sex if the nidda issue is  
> resolved by allowing single women to use the mikva?

R' MB:
> Lo sihyeh qedeishah. (Devarim 23:18; ShM lav 365)

> The Behag counts "umal'ah ha'aretz zimah" as a 2nd lav. The Rambam
> and Ramban hold it's lehalakhah but part of "lo sihyeh qedeishah".
> Rashi appears to treat it like mussar.

Also, being mevatel the Mitzvas Asei of Ki Yikach Ish Ishah U'va
Aleha - that Biah needs to be Al Yedei Kiddushin. According to
the Raavad, Lo Sihyeh Kedeishah might not apply, depending on the
nature of the relationship (i.e., I can see that his definition
of Pilegesh might fit what many today consider a "traditional"
boyfriend-girlfriend-living-together relationship. Only problem with
that is that, as R' MB said, you run into a big problem when they separate
without a Get. Or if she cheats).

KT,
MYG

On 25/10/2011 7:30 PM, Moshe Y. Gluck wrote:
> R' SZN:
>  1. who should control who is allowed to toivel?
> Whoever owns the mikvah de facto controls who is allowed to toivel. Since,
> IIANM, the Mikvaos are paid for by the government, they can control it,
> disregarding Halachah and Minhag Yisroel at their discretion. So any
> communities bothered (rightly so) by this, should, I think, build their
> own, private, mikvaos.

Except that in this case the government-controlled mikvaos are *following*
halacha and minhag Yisrael, and that is the complaint people are making!

-- 
Zev Sero        If they use these guns against us once, at that moment
z...@sero.name   the Oslo Accord will be annulled and the IDF will
                 return to all the places that have been given to them.
                                            - Yitzchak Rabin

                    
                

<<A mikveh is a religious institution, not a secular bath-house.  Halacha
requires the community to provide it for its proper use al pi halacha,
not for general amusement.  And since there is a takanah against tevilah
for single women, it follows that it's appropriate for the mikveh lady
to enforce this.  In Israel the Chief Rabbi has instructed all community
rabbanim to ensure that the public mikva'ot do not allow single women in,
and this seems to me entirely appropriate.  For the minister to interfere
in a matter of a psak halacha seems a chutzpah, and perhaps even something
that must be resisted at all cost.>>

The problem is that, as usual, the mikvah is built and maintained with
public monies.
As such that and many other issues are constantly in the vise between
religious laws
and modern democratic norms.

It is very important to remember that most requests of this kind to the
judiciary get turned down. So lets not overly worry.
I find it upsetting when newspapers make a big deal that someone appeal to
the "Bagatz" court over some issue.
It is fairly easy to do so in Israel and the vast majority are turned down.
Those turning to the courts to stop the trade for Schalit were doing it for
the sake of doing it.
Everyone knew in advance it had no chance of passing

-- 
Eli Turkel
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It is common in some circle to eat fish a non-kosher restaurant/hotel/cruise
when the chef double wraps the Salmon before cooking.
Especially in cruises the kitchen staff has seen such requests many times
and is well prepared.

Halachically sveral problems occur to me

1. bishul akum
2. If the fish is not whole, the knife used to cut a portion is treif
3. identifying the fish as kosher
4. ?

Any ideas?

Below is an email I received from a friend of mine

<http://adderabbi.blogspot.com/>On The Contrary

----------
The End of "Eat Fish Out" Orthodoxy?
Posted: 25 Oct 2011 02:33 AM PDT
I do not eat fish. The taste of fish makes me gag. It was therefore never
difficult for me to paskin that one may not eat out at non-certified fish
restaurants and sushi bars. I had no problem accepting the conventional
wisdom of the Orthodox establishment that there were often cases of mixing
and mislabeling. Though I had never gone into a fish restaurant to check out
the situation first hand (I can only recall being asked about this issue
once), I trusted the wisdom I grew up on, which did not acknowledge a
category of Orthodoxy that eats fish out.In any event, it appears that the
conventional wisdom was, in fact, wise. A new <
http://www.boston.com/business/articles/2011/10
/23/on_the_menu_but_not_on_your_plate/?page=full>BostonGlobe
expose shows that the phenomenon of mislabeling fish, especially by
restaurants, is phenomenally high. Some of the substitute species - swai and
some types of escolar, for example - are not kosher. I would be curious to
know whether there are statistics about mislabeling fish in kosher
restaurants and/or guidelines that kosher certifications agencies have in
place to prevent mislabeling. I also wonder whether such an agency would
certify an establishment that it knows to be substituting one kosher species
with a kosher but inferior species. Is this a possible niche for the <
http://tavhayosher.wordpress.com/>Tav Ha-Yosher?
<
https://feedads.g.doubleclick.net/~a/3rKycYJT
To4sDpmfScqGQGmFDWs/Giu9rFGbiL8Z_UNLsnzAnv9sHqs/0/pa
>
[]
<
https://feedads.g.doubleclick.net/~a/3rKycYJT
To4sDpmfScqGQGmFDWs/Giu9rFGbiL8Z_UNLsnzAnv9sHqs/1/pa
>
[]
<
htt
p://feeds.feedburner.com/~ff/blogspot/adderabbi?a=XrbXww-pJWI:v7FHjs_IN
2k:qj6IDK7rITs
>

-- 
Eli Turkel
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On Wed, Oct 26, 2011 at 10:25:53AM +0200, Eli Turkel wrote:
: Halachically sveral problems occur to me
: 1. bishul akum
: 2. If the fish is not whole, the knife used to cut a portion is treif
: 3. identifying the fish as kosher

4. Nosein ta'am -- you can't say stam keilim einum ben yoman when a
restaurant kitchen routinely uses the same keilim repeatedly throughout
the day.

For that matter, how do you know they bothered to wash the pan after a
similar-tasting dish just made? The pan could well have tarfus be'ein,
not just na"t.

Tir'u baTov!
-Micha

-- 
Micha Berger             When a king dies, his power ends,
mi...@aishdas.org        but when a prophet dies, his influence is just
http://www.aishdas.org   beginning.
Fax: (270) 514-1507                    - Soren Kierkegaard

On Tue, Oct 25, 2011 at 09:16:31PM -0400, David Riceman wrote:
> (i) A man may not gaze at a woman he may not marry.
>
> (ii) A man may not gaze at someone or something which may later induce a  
> shichvas zera l'vattalah.
>
> (iii) A person may not look at something distracting while reciting  
> krias shma.
>
> (iv) A married woman may not go out "v'roshah parua".

Kol ishah also needs a place on your list. I also don't think it's clear
where you would put shoq be'ishah. Judging from context (Berakhos 24a)
it would appear that they are derivatives of (i), as the sugya begins
with "kol hamistaqeil be'etzba qetana". My argument requires assuming
that sei'ar, shoq and qol are dinim derabannan motivated by (i),
not instances. Otherwise, as soon as we got to the point that sei'ar
wasn't included in (iii) we would also have to exclude it from (i) --
its presence isn't likely to someone to histaqeil.

...
> The sugya in Berachos, as construed by the poskim, is confusing because  
> it talks about issurim (i) and (iii) without making the transition clear.

BH we have the AhS to point to, who clearly spells out this distinction.

> I think your problem is that you fail to distinguish between (i) and  
> (ii) (they are different simanim in EH).

I'm not sure how you get that, as I haven't mentioned (ii) at all. I
also think that you overstate it by linking (ii) to SZL rather than
also trying to prevent hirhurim that don't get that far.

I would have instead characterized the idea as saying that (iv) is based
on Sotah. The existence of this issur, and thus the norm that married
women's hair is covered, is what motivated a derabbanan linking sei'ar to
(i).

Tir'u baTov!
-Micha

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

The discussion and questions surrounding this issue are quite
fascinating. I am attaching notes that I transcribed from a recording
of a shiur I heard from my Rav on this subject many years ago.

[I put the file at <http://www.aishdas.org/avodah/faxes/premaritalMikvah.pdf>.
Would be nice to know who the rav in question is, though... -micha]

On 26/10/2011 4:15 AM, Eli Turkel wrote:
> The problem is that, as usual, the mikvah is built and maintained with public monies.

Which is exactly what the halacha requires.  The fact that in this
instance the public is obeying the halacha doesn't give it a right
to violate halacha!

-- 
Zev Sero        If they use these guns against us once, at that moment
z...@sero.name   the Oslo Accord will be annulled and the IDF will
                 return to all the places that have been given to them.
                                            - Yitzchak Rabin

                    
                

On Wed, Oct 26, 2011 at 10:25:53AM +0200, Eli Turkel wrote:
: Halachically sveral problems occur to me
: 1. bishul akum

As I understand the method being discussed, the diner personally puts
the double-wrapped fish on the grill, or otherwise participates in the
cooking, e.g. by squeezing a lemon on to the fish before it's wrapped.
Also, at least sushi-grade fish is now ubiquitously eaten raw, and thus
bishul akum doesn't apply.


: 3. identifying the fish as kosher

Not an issue for salmon, which is easily recognised.  Other species
require a skin tag.


On 26/10/2011 5:36 AM, Micha Berger wrote:
> 4. Nosein ta'am -- you can't say stam keilim einum ben yoman when a
> restaurant kitchen routinely uses the same keilim repeatedly throughout
> the day.

Not an issue.  That's the whole point of the double-wrapping.

-- 
Zev Sero        If they use these guns against us once, at that moment
z...@sero.name   the Oslo Accord will be annulled and the IDF will
                 return to all the places that have been given to them.
                                            - Yitzchak Rabin

                    
                

--- On Tue, 10/25/11, Micha Berger <mi...@aishdas.org> wrote:


On Tue, Oct 25, 2011 at 08:38:23AM -0700, Harry Maryles wrote:
: Minor quibble: AIUI Seir B'Isha Erva is not a Gezeras HaKasuv. It
: is a D'Oraisa MeiDivrei Sofrim. There is no explicit pasuk that says a
: married woman must cover her hair. It is extrapolated from Sotah.

I don't understand how you use these terms. Until this email causing my
current confusion, I thought:

divrei soferim: a derabbanan created by someone serving the role later
? ? called "rav" who happens to be a navi and therefore knows HQBH
? ? agrees with the taqanah. Nevu'ah can't create a din, this is clearly
? ? derabbanan; but one POST FACTO ratified by HQBH.

? ? E.g. the whole issue of whether megillah is derabbanan or midivrei
? ? soferim, or midivrei soferim for men and derabbanan for women.

gezeiras hakasuv: I took to mean that we do simply because the Torah
? ? says so, and we therefore divorce its details from any rules we
? ? can comprehend. (Kind of like a mitzvah could be a choq, but specific
? ? dinim within a mitzvah that makes sense overall could be gezeiros
? ? hakasuv.)

I don't think I ever thought about whether derashos could be gezeiros
hakasuv. But that's not relevent here, since the deduction is sevara
(a logical deduction), not derashah (via the 7/13/19/32 middos). If
the sotah uncovers her hair, then we deduce from needing to state this
exception that the rule is a married woman would cover hers. ("The
exception that proves the rule.")
-----------------------------------------
?
I saw it in a secondary source (I no longer recall the Sefer or the subject) that understands the Rambam this way:
?
Gezeiras HaKasuv ? ?a D?Oraisa specifically written in the Torah ? e.g. Melacha on Shabbos
?
MeDivrei Sofrim ? a D?Oraisa derived from Pesukim (via the Shelosh Esreh
Midos ShaHtorah Nidreshes Bohem etc.)? e.g. the Daas Moshe of a married
woman covering Rov of her hair.
?
D?Rabbanan ? a Gezeria that is B?Geder Shvus ? e.g. Muktza
?
HM

Want Emes and Emunah in your life? 

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



?
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R' Micha Berger wrote:

> In any case, anything accepted as part of the gemara is
> accepted by most rishonim ...
>
> But what's more relevant to us is authority, not history. If
> rov rishonim assume the inserts from the Behag are to be
> treated as seriously as the rishonim, if that many gedolim
> were willing to keep the insertion in their gemaros, then
> does it make a difference? The question of how the
> "vehilkhisa" isn't obeyed isn't answered by its late date if
> the authority is nearly the same anyway.

With all due respect, there are so many weasel words here that I don't really follow the question:

"anything accepted as part of the gemara" - accepted by who?
"accepted by most rishonim" - but not all of them
"what's more relevent to us" - who is "us"?
"If rov rishonim assume" - but the minority don't
"many gedolim were willing to keep the insertion" - and others weren't
"the authority is nearly the same" - nearly, but not quite

But the line that I take most serious issue with is:
> But what's more relevant to us is authority, not history.

I can't see isolating the two. The posek must take both into consideration.
One does not look only at the numbers, but also at the situations. Even if
the preponderance of poskim felt that "v'hilchasa" was a reasonable p'sak,
it might not have been so reasonable in some localities.

It is rather easy for me to sympathize with a rav whose community is
enduring a typically cold, wet, North European October, and who is trying
to make sense of arguments that "there's no Appearance Of Bal Tosif on
Shmini Atzeres, because people enjoy eating outdoors on a pleasant autumn
day." I can easily see him saying something like, "Sure, the Shulchan Aruch
can pasken that way in Tzefas, but the argument just doesn't hold water
here."

Of course, if "v'hilchasa" had been accepted by all as coming from Ravina
and Rav Ashi, they've have been stuck, with nothing to hang their kula on.
But if there are reasonable grounds for saying that it is a more recent
addition, then I think this is precisely the sort of flexibility that the
Torah Sheb'al Peh is designed for.

Akiva Miller

____________________________________________________________
60-Year-Old Mom Looks 27
Mom Reveals Free Wrinkle Trick That Has Angered Doctors!
http://thirdpartyoffers.juno.com/TGL3131/4ea804acd3edb108c61est02vuc

On Wed, Oct 26, 2011 at 06:22:28AM -0700, Harry Maryles wrote:
: Gezeiras HaKasuv -- a D???Oraisa specifically written in the Torah
: -- e.g. Melacha on Shabbos

: MeDivrei Sofrim -- a D'Oraisa derived from Pesukim (via the Shelosh
: Esreh Midos ShaHtorah Nidreshes Bohem etc.) -- e.g. the Daas Moshe of
: a married woman covering Rov of her hair.

I think the discussion boils down to whether you hold that derashos
are constructed following rules (Rambam, Maharal Tif'eres Yisrael 27)
or discovered (Tosafos). If the middos provide creative room, then one
can credit their results to the soferim.

See R Chaim Brown's discussion at
http://divreichaim.blogspot.com/2006/05/moshes-added-day-ii-
divrei-sofrim-and.html

The problem I still have is how Megilas Esther can be called midivrei
soferim by the Rambam (at least for men). That was the data point around
which I formed my terminology.

Getting back to gezeiras hakasuv, the same machloqes would be involved.
The Rambam and Maharal couldn't call the product of a derashah "gezeiras
hakasuv" because it's the product of the interaction of people with
the kasuv. The baalei Tosafos could. Rashi appears to (Qiddushin 42a)
when he calls the derashah "ish" to exclude a qatan from shelichus (and
from shelichus in gitin to shelichus in general) as a "gezeiras hakasuv".

Last, the Rambam distinguishes between diverei soferim and derashos.

Also enlightening is an Avodah discussion from 1998:
    - RRD on the Rambam's 2nd shoresh and qiddushei kesef
        http://www.aishdas.org/avodah/vol02/v02n065.shtml#04
    - RDE's reply
        http://www.aishdas.org/avodah/vol02/v02n065.shtml#08 
    - R Dr Moshe Koppel poking holes in the reply (the Rambam's categorization
      in general raises so many problems, it becomes more an issue of which
      acharon you are filtering it through than the Rambam)
        http://www.aishdas.org/avodah/vol02/v02n066.shtml#07
    - R' David Glasner's (the "Dor Shevi'i" as I used to call him) summation
      of how he understands the term (a reply to RMK, but addresses RRD's
      original question
        http://www.aishdas.org/avodah/vol02/v02n067.shtml#04

For the second time in as many days, I find that an opinion I thought I
formed on my own (and still may have) appears in Avodah.

Tir'u baTov!
-Micha

-- 
Micha Berger             Between stimulus & response, there is a space.
mi...@aishdas.org        In that space is our power to choose our
http://www.aishdas.org   response. In our response lies our growth
Fax: (270) 514-1507      and our freedom. - Victor Frankl, (MSfM)

On Wed, Oct 26, 2011 at 01:00:39PM +0000, kennethgmil...@juno.com wrote:
: With all due respect, there are so many weasel words here that I don't
: really follow the question:

WADR, you sound like nitpicking, looking for wiggle room when there is
none. But then, that's only natural given your perception of what I
thought was clear.

: "anything accepted as part of the gemara" - accepted by who?
: "accepted by most rishonim" - but not all of them
: "what's more relevent to us" - who is "us"?
: "If rov rishonim assume" - but the minority don't
: "many gedolim were willing to keep the insertion" - and others weren't
: "the authority is nearly the same" - nearly, but not quite

We no longer argue whether or not "Vehilkhisa" belongs in shas. (Or
other savoraic or gaonic additions.) No acharon suggested, for example,
putting them in parens like other deletions, printing them in kesav Rashi,
etc... It is accepted in any teshuvah today that this is the masqanah of
the gemara. And if I overlooked exceptions to my "any teshuvah today",
we're still definitely talking daas yachid territory.

We, those who follow ruba deruba of posqim since Tosafos, allowed the
geonim who inserted these ammendations to get away with it because we
granted these proclamations the authority. That centuries of peer review
kept them in for a reason.

You write that there were gedolim who weren't willing to keep the
insertions. Who? Who published a shas removing them again? Tosafos note
the insertion, but only in one particular case where the text of the
insertion wasn't fully accepted in every edition yet, and points out
that it certainly wouldn't have been accepted as certain-as-Bavli in
the She'iltos's day. But they don't deny the principle, just its
application to Pesachim 30a. See Chulin 97a d"h "Amar Rava".

I therefore still stand by my earlier claim that "vehilkhisa" represents
the gemara's conclusion, even if we agree that it does not represent
the amoraim's conclusion.

: But the line that I take most serious issue with is:
: > But what's more relevant to us is authority, not history.

: I can't see isolating the two. The posek must take both into
: consideration. One does not look only at the numbers, but also at the
: situations. Even if the preponderance of poskim felt that "v'hilchasa"
: was a reasonable p'sak, it might not have been so reasonable in some
: localities.

You're blurring my use of the word history. We're speaking of the history
of pesaq, not of umdena.

Yes, you need to know the case they pasqened about in order to know if
the pesaq applies to the case before you. But you don't need to know
which amora was in which generation. None of the rules of pesaq among
tannaim or amoraim invoke age (within each of those two eras). We granted
all named amoraim authority, and place every stam on the same (but 2nd
to named) level.

This is why the Revadim analysis of gemara waited for the closing years
of the 20th cent for development. Analyzing the gemara by pealing apart
the historical layers of development isn't how pesaq is done. (As a general
rule; again, I'm sure there exist exceptions of which I'm unaware.)

To quote R' Pinchas Zuriel Hayman's article at <http://www.lookstein.o
rg/articles/revadim.htm>:
    Some scholars place stress on the identification of the Stama
    d'Talmuda as late Amoraic or Saboraic. Although this is a fascinating
    question for learning and research, the issue has no halachic
    implications, for several reasons:

    1. the people of Israel have accepted the Talmud in its entirety as
    the source for halachah

    2. halachah is derived from Talmud, but fixed in later codes such
    as the Shulchan Aruch of Rabbi Yosef Karo (Safed, 16th century)
    which bind observant Israel, irrespective of the exact dating of
    any given source material

    3. Saboraim are also part of the unbroken chain of tradition, just
    like the Amoraim before them and the Gaonim who follow them. A source
    dated from the saboraic period will be no less relevant halachically
    because it is post-amoraic.

This is a clearer phrasing, but basically what I was trying to say.
I would add that the first two items are inseperable -- the acceptance
mentioned in #1 is reflected in the codes, and the acceptance of the
codes in #2 further entrenches #1.

...
: Of course, if "v'hilchasa" had been accepted by all as coming from
: Ravina and Rav Ashi, they've have been stuck, with nothing to hang their
: kula on...

Tangent:
The Rambam writes "Rav Ashi veRavina" (RAvR), reversing the usual
order. This is one of a number of data points suggesting that the Ravina
who participated in composing the gemara was not R' Ashi's bar pelugta
(5th-6th gen), but Ravina I's nephew and R' Ashi's grandson (Ravina II,
8th gen). It would explain the frequency that we find gen 7 amoraim in
shas, such as R' Acha bar Raba and Ravina II's father, Mar berei deR'
Ashi (real name: Tavyomei).

Anyway.... I'm saying that since the days of Tosefos, the opinions that
grant post-RAvR positions in the gemara more authority than other geonic
positions. Perhaps not so far as to grant them equality if they disputed
RAvR or amoraim before, but AFAIK no such insertion actually exists.

Tir'u baTov!
-Micha

-- 
Micha Berger             When memories exceed dreams,
mi...@aishdas.org        The end is near.
http://www.aishdas.org                   - Rav Moshe Sherer
Fax: (270) 514-1507


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