Avodah Mailing List

Volume 32: Number 78

Mon, 05 May 2014

• 1. Re: Women wearing Tefillin (Chana Luntz)
• 2. Re: Kohein and Transplant from Cadaver (Samuel Svarc)
• 3. Re: help with 2 sugyot (Lisa Liel)
• 4. Re: help with 2 sugyot (Zev Sero)
• 5. Re: help with 2 sugyot (Zev Sero)
• 6. Re: help with 2 sugyot (Lisa Liel)
• 7. Re: help with 2 sugyot (Zev Sero)
• 8. Re: obsession with kitniyot (Kenneth Miller)
• 9. Re: obsession with kitniyot (Micha Berger)
• 10. help with 2 sugyot (Eli Turkel)
• 11. Re: Hakhel Email Community Awareness Bulletin - Improving Our Kavod for Others (Prof. Levine)
• 12. 2 sugyot (Eli Turkel)
• 13. Lag LaOmer (was: Hakhel Email Community Awareness Bulletin - Improving...) (Micha Berger)

RMB writes:
>The AhS (OC 17:3) gives two other different distinctions between tzitzis
>on the one hand and shofar, sukkah and lulav on the other. This is after
>se'if 2 quotes the Rambam that they may, and Rabbeinu Tam's shitah that
>they would make a berakhah too -- "likh'orah  yekholos lehis'ateif
>velevareikh".
>But we never heard of such a thing because tzitzis is different than
>the mitzvos women tend to try to do:

>1- Those mitzvos are annual, and the mitzvah itself doesn't take very
>   long, whereas tzitzis is year-round and lo na'eh lenashim.
>2- Tzitzis aren't a chiyuv for men either.

Ironically these two reasons seem to contradict one another.  Given that it
is not a chiyuv for men, since they are only obligated if they happen to
have a four cornered garment, even if a woman took on the mitzvah she could
only be assumed to be taking it on to the same extent that a man does,
meaning then if she happened not to have a four cornered garment, she would
be exempt, as he would.  Makes it much easier to justify stopping and
limiting the level of time commitment.

No 1 is of course important. It is obvious that there needs to be caution in
taking on a mitzvah that places heavy demands upon one's time.   It is one
thing to take on a mitzvah from which one is exempt if it only takes a
minute, like lulav, and another to take on a mitzvah that is heavily time
involved.  Tephillin is certainly in that category - there is no question
that one of the reasons it takes my husband at least twice as long to daven
shachris as me even when he is davening at home, is because of the tephillin
- and that seriously impacts our relative abilities to get to work.  His
employer ends up having to lump it in a way mine does not. 

I would note, however, that going to shul is far worse in this regard. The
amount of time spent by my husband in shul, compared with myself, is huge,
and probably accounts for the difference between the amount of time that I
find for learning during the day versus the amount of time he does.  So were
the time argument to be a valid one, then according to this Aruch HaShulchan
we should protest every time a woman goes to shul - except perhaps on yom
tov, which perhaps can be grandfathered in as only a few times a year.
Certainly those women - many of them elderly or single, who go every single
day and often more than once - must need be heavily censured, as this is
something that mothers with children do not have the luxury of doing (and
indeed many mothers will tell you that their shul going experience for many,
many years amounts, even in places where there is an eruv, to a maximum of
sitting on shabbas in a circle with other mothers and their own and other
toddlers in some room somewhere next door to the main shul singing "ding a
ling a ling here comes the Torah", which at not stretch could be described
as tephila b'tzibbur).

Going to shul is a huge lifestyle difference, and one that is certainly not
open to many women.  To be consistent one would need to protest the adoption
by women of such a lifestyle difference as well (and yet, oddly enough, from
what I understand the whole reason why the latest tephillin crisis hit is
because of the *requirement* by the school in question for girls to go to
main minyan in the morning).  

And a lot of people, I suspect, would take the attitude that it rather
depends on what else is being done with that time.  If the girls are using
that time while the boys are davening to put on make-up and generally fuss
over their appearance, or to talk lashon hara during the davening while the
boys are putting on their tephillin, the arguments for having them rather
engaged in divrei mitzvah seem a lot stronger than if they are looking after
their small children during that time, which is what girls of this age in
previous generations (maybe even as late as the Aruch HaShulchan) were far
more likely to have been doing.

Note by the way that Shul going is, according to many opinions, not required
for men.  However the Aruch HaShulchan (Orech Chaim siman 90 si'if 20) is
one of the strongest voices in holding that it is in fact a chiyuv for men;
that men are not permitted go somewhere without a minyan if they are
travelling on a dvar reshus, and that the only reason men are generally
permitted to not engage in tephila b'tzibur is because earning a livelihood
is considered a dvar mitzvah.  I personally don't think the world is noheg
like this Aruch HaShulchan, as we see many people prepared to go on holiday
to a place without a minyan.   But then of course, if you do hold against
the Aruch HaShulchan in this regard, and hold that minyan is not a chiyuv on
the individual man, just on the community, then you would have the same
problem vis a vis women that the Aruch HaShulchan raises in no 2 as well.  

On the other hand, the benefit of holding that there is no individual
obligation on a man to go to shul, just that men should be good neighbours
and try, given that the community needs to have a minyan (such as those
sources used to support the Yalkut Yosef's position, in chelek Rishon,
Hilchot Tefila letter 3-  that tephila b'tzibbur for men is just a mitvah
min hamuvchar, such as the Maharil and the Chavos Ya'ir), is that then you
can explain the more casual approach to women going - ie the attitude that
most people take that it is OK for them to go at certain times in their
lives, even if they will not go at other times.  If you hold that it is an
absolute mitzvah for a man to go, if a woman then goes regularly at some
point, it would seem that she ought to need hataras nedarim if she later
stopped going - but my instincts are that this is generally not required.
However given the Aruch HaShulchan's position, it would seem that he at
least would have to require this.  But once you hold that shul going is not
a chiyuv for men, then according to the Aruch HaShulchan explaining the Rema
here, yehura should also kick, and we should likewise protest any going of
women to shul regularly, on the grounds of yehura, given that it is not even
an absolute chiyuv on men to go.  
  

>This is why (the AhS continues) the Rama says there is more concern for
>meichzei keyhara for a woman to wear them. The AhS associates the yuhara
>to both distinctions -- because it is a lifestyle difference rather than
>a once-a-year even that isn't even a chiyuv for anyone. "And therefore
>we are not menichim linhog this mitzvah. And this is the minhag, ve'ein
>leshanos."

Now if, as if suspect, the Aruch HaShulchan was never faced with the
phenomenon of women going to shul regularly on weekdays - should not he also
argue that this is not the minhag? This gets into the whole question of lo
raynu yesh raya by minhag (as per the Shach in Yoreh Deah siman 1 si'if
katan 1)- but when it is discussed by shechting, the point as brought out in
the various meforshim explaining the Shach is that the matter of shechting
is common, and it is not possible that if women had ever shechted, it would
never have been heard of, were there not a minhag against.  To extend it to
cases, such as daily shul going or tephillin or tzitzis wearing, which are
specifically mentioned as being done by women in the gemora, and about which
there are rumours of women doing it here and there, becomes a huge
extension, with large implications elsewhere.  For example (although I am
sure there are better ones) once you start along these paths, you get into
the questions of eg levush - nobody in Europe wore modern clothing,
therefore there was a minhag against modern clothing, so nobody can wear it
in America now either, since lo raynu yesh raya.

>Tir'u baTov!
>-Micha


Good Shabbas

Chana

On Fri, May 2, 2014 at 8:33 AM, M Cohen <mco...@touchlogic.com> wrote:
> Many dental implants use cadaver bone to help fill the hole
> where the post is placed in the jaw (as part of the procedure)

> Alternatively, porcine or synthetic bone can be used.

> I asked r Shlomo Miller about it, and he said that m'ikar hadin
> the cadaver bone was ok because of tumah baluah,
> but I should use the alternative bone if possible.

No longer have my notes from when the chaburah I started learned these
halachos (my seforim were taken and I fear lost forever).

 From what I can piece together on the spot.

Bones by themselves, without 'basar vgiddim', are highly unlikely to be
'mdamah' (you would need rov binyan,or other factors). Further, the surgeon
can scrape a small piece off the bone, thus ensuring that it is for sure
not an 'ever'.

"Tumah beluah' was already mentioned.

KT,
MSS

On 5/2/2014 12:05 PM, Zev Sero wrote:
> On 2/05/2014 6:03 AM, Eli Turkel wrote:
>>> What decision was there to be made?  He has done you a favour.  You are
>>> objectively better off now than you were before, and even after paying
>>> him you will be objectively better off, so what rational reason 
>>> could you
>>> possibly have for not wanting him to have done the work?  In what 
>>> way did
>>> he harm you?
>
>> He harmed me because I have a regular gardener who does my lawn or 
>> snow removal.
>> Now a stranger comes removes the snow and demands full payment.
>
> So how does that harm *you*?  It harms your regular guy, and while in 
> general
> he would not have a case against the interloper, in such a case he 
> might well
> have one.  But what case do *you* have?  What difference does it make 
> to you
> whether you pay him or your regular guy?

It's called loyalty.  It's called not wanting to hurt the regular guy's 
feelings.  I don't get why that's difficult to understand.

Lisa

On 2/05/2014 1:33 PM, Kenneth Miller wrote:
> And so, instead of "having an attitude" about this, I'd like to learn
> it in more depth. R' Zev, can you suggest any mar'eh m'komos where
> you learned about the details and requirements?

I don't remember exactly, but I suggest you go back to the original sources,
in the gemara, the Rambam, the Tur and Beis Yosef, etc., and approach them
with the understanding that:
1) the authors of these texts didn't have houses full of fragile things,
unscuffed walls, wall-to-wall carpets, etc., or ornamental gardens;
2) the underlying principle of "midas sedom" is simply that we should be
mentchen to each other, and should be willing to do others favours  so long
as it doesn't cost us anything;
I think it will all come clear to you.

I think the big misunderstanding that came up here is that when we hear
"garden" we immediately think of the only sort of garden most of us have,
whereas when these texts were written "stam garden" meant a market garden,
because only the very rich had any other kind.  I mistakenly took it for
granted that this was understood by everyone.

-- 
Zev Sero             Sufficiently advanced incompetence is indistinguishable
z...@sero.name        from malice.
                                                          - Eric Raymond

On 2/05/2014 2:09 PM, Lisa Liel wrote:
> On 5/2/2014 12:05 PM, Zev Sero wrote:
>> On 2/05/2014 6:03 AM, Eli Turkel wrote:

>>> He harmed me because I have a regular gardener who does my lawn or snow removal.
>>> Now a stranger comes removes the snow and demands full payment.

>> So how does that harm *you*?  It harms your regular guy, and while in general
>> he would not have a case against the interloper, in such a case he might well
>> have one.  But what case do *you* have?  What difference does it make to you
>> whether you pay him or your regular guy?

> It's called loyalty. It's called not wanting to hurt the regular
> guy's feelings. I don't get why that's difficult to understand.

That's not harm to *you*.  It's harm to the other guy.

-- 
Zev Sero             Sufficiently advanced incompetence is indistinguishable
z...@sero.name        from malice.
                                                          - Eric Raymond

On 5/2/2014 1:30 PM, Zev Sero wrote:
> On 2/05/2014 2:09 PM, Lisa Liel wrote:
>> On 5/2/2014 12:05 PM, Zev Sero wrote:
>>> On 2/05/2014 6:03 AM, Eli Turkel wrote:
>
>>>> He harmed me because I have a regular gardener who does my lawn or 
>>>> snow removal.
>>>> Now a stranger comes removes the snow and demands full payment.
>
>>> So how does that harm *you*?  It harms your regular guy, and while 
>>> in general
>>> he would not have a case against the interloper, in such a case he 
>>> might well
>>> have one.  But what case do *you* have?  What difference does it 
>>> make to you
>>> whether you pay him or your regular guy?
>
>> It's called loyalty. It's called not wanting to hurt the regular
>> guy's feelings. I don't get why that's difficult to understand.
>
> That's not harm to *you*.  It's harm to the other guy.
>
I don't understand.  Are you saying that I have no interest in wanting 
to be on good terms with the other guy?  That I *can't* have?  I may not 
be able to place a dollar value on a relationship, but that's not the 
only kind of value that exists.

Lisa

On 2/05/2014 2:41 PM, Lisa Liel wrote:

> I don't understand. Are you saying that I have no interest in wanting
> to be on good terms with the other guy? That I *can't* have? I may
> not be able to place a dollar value on a relationship, but that's not
> the only kind of value that exists.

In a business relationship, dollar value is ultimately the only kind of
value that exists.  The halacha recognises the concept of "tovas hana'ah",
goodwill, precisely because it has a dollar value -- the expectation of
future favours.  There is a presumption that a person gives others gifts
in the expectation of receiving something in return, eventually.


-- 
Zev Sero             Sufficiently advanced incompetence is indistinguishable
z...@sero.name        from malice.
                                                          - Eric Raymond

R' David Cohen wrote:

> As R' Micha has pointed out, minhag avos is meant to come into play
> when there is no fixed minhag hamakom.  As I understand it, this is
> not an arbitrary rule, but reflects the fact that we all have a
> natural (and, I would say, positive) tendency to identify and
> affiliate with a particular community, and in the absence of a
> geographic community that shares minhagim, we naturally affiliate
> ourselves with the virtual community of those who share a common
> origin.  In other words, the idea of following minhag avos is more
> descriptive of how we view ourselves than it is prescriptive.

Yes, R' Micha does indeed explain it that way. But a thought just occurred
to me: Doesn't the whole obligation of following minhagim derive from the
pasuk, "Shma bni musar avicha, v'al titosh toras imecha"?

In other words: We seem to have a pasuk that tells us that minhag avos really is the proper approach. Maybe we went to minhag hamakom for some other reason?

When each shevet lived in its own area, these two concepts overlapped.
Perhaps, when the mass migrations began, it was found that in small
communities of people from various backgrounds, machlokes often resulted
from people insisting on minhag avos. Perhaps that's how, for the sake of
shalom, we went to the less-preferred approach, that of minhag hamakom.

All this is off the top of my head. Just thinking out loud. Any comments?

Akiva Miller
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On Fri, May 02, 2014 at 06:55:21PM +0000, Kenneth Miller wrote:
: Yes, R' Micha does indeed explain it that way. But a thought just
: occurred to me: Doesn't the whole obligation of following minhagim derive
: from the pasuk, "Shma bni musar avicha, v'al titosh toras imecha"?

"Al tiqri 'imekha' ela 'umaskha'".

R' Hai Gaon says it's "lo sasig gevul rei'ekha". To which we add "uporeitz
geder yishkhenu nachash" (Qoheles 10:8) -- and this threat is used by
acharonim against shaving down 6 hours after meat, avoiding qitniyos,
etc... I suggested once that this tie to a pasuq in chumash is why Ashk
make a berakhah on a minhag -- but this pasuq justifies "asher qidishanu
bemitzvosav" as much as "kekhol asher yorukha".

: In other words: We seem to have a pasuk that tells us that minhag avos
: really is the proper approach. Maybe we went to minhag hamakom for some
: other reason?

Again, see Pereq Maqom sheNahagu (Pesachim ch. 4). It's clear chazal saw
minhag in community terms. All of their uses of minhag avoseikhem/-hem
were to / about entire communities.

:-)BBii!
-Micha

-- 
Micha Berger             Today is the 17th day, which is
mi...@aishdas.org        2 weeks and 3 days in/toward the omer.
http://www.aishdas.org   Tifferes sheb'Tifferes: What is the ultimate
Fax: (270) 514-1507                              state of harmony?

It seems to me many people are giving thrir opinion without sources or
general statements like it is clear from the gemara or SA etc. I note that
the encylopeia tamudit has a long article in the case over 100 columns.
Another extensive discussion appears in
http://www.rambish.org.il/journals/a/avnei_mishpat/vol011/avm01113.pdf

Indeed this sugya is full of disagreements on all levels.
I shall attemot to bring sources (which disagree with much of what has been
claimed)

The origin is Baba Metzia 71a. The gemara says that if the field is not
rented that "yado al hatachtona" while if it is rented then "yado al
haelyana" . There is a disagreement between Ramban and Baal Hamaor exactly
what "yado haelyana" means, ie what level of wages is he entitled to.

The mor relevant question for our discussion is what happens when the the
land owner says he is not interested in the improvement and the outsider
should remove it. It seems to be accepted that if to begin with the owner
says that he doesnt want the improvement that the "yored" s not entitled to
anything. Similarly ifd the field is not meant for planting than the owner
can demand that the "yored" remove everything and not be paid.

If the field is meant for planting then Rav Hai Gaon and Baal Hamaor, hold
that the owner has no right to demand that the yored undo his work. Rif,
 disagrees and says he has such a right.
Ramban and Rashba say that this applies only in a field not meant for
planting while Rosh says that the owner can make thios claim even in a
field meant for planting.
SA paskens like the Rosh (CM 375:1) .
According to this opinion both sides have the right to undo the improvement
and so it is not clear how the payment should be made as both sides have
bargaining chips. Thus in practice the level of payment will result from
bargaining of the two sides.

What happens if the work cannot be undone: eg someone dyed a sweater with
an expensive dye? Netivot Hamishpat holds that the dyer must be paid
(375:(2)). CI disagrees and says that one cannot be forced to accept a
benefit against his will. Instead the owner swears he doesnt want the
benefit and doesnt pay.

Conclusion: According to the Netivot the only thing that counts is whether
the owner in fact received a benefit. If he did then he has to pay whether
or not he wanted that benefit. According to CI one pays only for a benefit
that one wants and one cannot force a benefit on someone else and demand
payment. How much the payment is will again be a disagreement among many
shitot

> Again, a true BD would thrash our trespasser/gardener/squatter, using
> maakos mardus to prevent the breakdown of society, after forcing him
> to pay him for being a 'mazek' and damaging the garden he pillaged.

>Except that a true BD would look in the gemara and Shulchan Aruch, where it
>says to do the opposite.   You're arguing here against a firmly
established halacha.

According to everyone if the owner says before the action that he does not
want the work then he need not pay.  This is explicitly to prevent workers
from entering fields and making a living against the will of the owners
which would lead to a breakdown in society.

> To avoid him and his other 'anshei sedom' friends from "removing splinters
> from someones fence until there is no fence left" (in whatever form this
> manifests itself in), BD will thrash the first person.

>>Except that the halacha says it's the second person, the owner, who is a
sodomite.>>

The one who enters someone else's house or does work univited in his field
is the rasha.
The only question is what is the halacha after it already happened.
The commentaries state that one cannot force someone to allow others live
in his empty house.
One does not say "kofin al miday sdom" in this case. It is also obvious
from SA that they went out of their way to limit this halacha. Almost every
"se-if" in CM 363 befins with "yesh omrim" that qualify the halacha. Thus,
for example, if the trespasser does minimal damage to the house he is
responsible for the complete rent that this place goes for and not just the
minimal damage that he did. I interpret this approach as again trying to
limit the rights of outsiders to take over someone's property even when he
doesnt do any damage or even provides an unrequested benefit.

-- 
Eli Turkel
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At 05:31 AM 5/5/2014, you wrote:

>1. According to Nusach Sefard, one says: 
>????.Hayom Esrim Yom LaOmer???. Yet, the 33rd 
>day of the Omer seems to be universally known as 
>Lag BaOmer. According to Nusach Sefard, would it not be Lag LaOmer?

The fact that everyone says Lag Ba Omer indicates 
to me that one should count with a Beis!

YL
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<<he could have forced the first person to lend him the hammer in the first
place.   Assuming he could put up a bond in case of damages, the owner
would have no grounds to refuse the loan.>>

This is not so clear. Many Rishonim and Achronim state that kofim al midat
sdom does not including taking someone's property or using his land even
when he is
not using it.
For example the Meiri Baba Batra 59b says that one caanot put up a ladder
in someone else's yard (when it doesnt interfere with anything) because how
can some one use someome else's property against his wishes. See explicitly
Tur CM 153 (21) who disagrees with Rambam because of this reason .  see
also teshuvot Maharsham.

BTW putting up a bonf doesnt help because the owner of the hammer can claim
that he doesnt want to go through the trouble of cashing in the bond which
might involve going to court.

Just imagine everyone going to their neighbors and demanding to use their
expensive silverware or Jewelry on the grounds that the neighbor is using
it and they need it for some affair.

-- 
Eli Turkel
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On Mon, May 05, 2014 at 07:12:16AM -0400, Prof. Levine wrote:
:> 1. According to Nusach Sefard, one says: "...Hayom Esrim Yom
:> LaOmer". Yet, the 33rd day of the Omer seems to be universally
:> known as Lag BaOmer. According to Nusach Sefard, would it not be
:> Lag LaOmer?

: The fact that everyone says Lag Ba Omer indicates to me that one
: should count with a Beis!

According to the SA, it's Lag laOmer (OC 493:2), despite not having "ba-"
nor "laOmer" in the count itself. The machaber's nusach just ends with the
number (489:1).

In prior iterations on Avodah someone repeated besheim RNBulman (until
two years ago, when I took over the job) that the name Lag baOmer really
only reflects the Mequbalim of Tzefas who turned Yom Simchas/Shemeis Rav
Shim'on into a public holiday. (There is a dispute about the girsa on
Peri Eitz Chaim.) And therefore doesn't necessarily correlate to anyone
else's nusach.

The Rama adds "ba'omer" to the end of the mechaber's text. The MB (489 s"q
8) says "ba'omer" is rov posqim, but the issue is only lekhat-chilah since
as you see from the SA, you don't need to actually say either. See also
the Shaarei Teshuvah (389 s"q 8) who brings sources for both ways, but
argues that the grammar, common speech, minhag and the Ari would justify
"la'omer".

So it seems Nusach "Sfard" changed the count to be as per the Sefardim,
but never bothered changing the nickname by which they call the day.
Your question is part of the general one about how Nusach "Sfard"
got started altogether. But RNB's observation about who made Lag baOmer
significant enough to have its own name would make it stranger for Nusach
"Sfard" to change from baOmer" to something /not/ said in Tzedas.

Tir'u baTov!
-Micha

-- 
Micha Berger             Today is the 20th day, which is
mi...@aishdas.org        2 weeks and 6 days in/toward the omer.
http://www.aishdas.org   Yesod sheb'Tifferes: What role does harmony
Fax: (270) 514-1507                   play in maintaining relationships?


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