Avodah Mailing List

Volume 41: Number 1

Sun, 01 Jan 2023

• 1. The Many Facets of Asarah B'Teves (Prof. L. Levine)
• 2. Re: Why are women exempt from positive time-bound mitzvot (Chana Luntz)
• 3. Women Davening (was: [Areivim] Eating Seudah (Chana Luntz)
• 4. Re: "borrow" another's tallit or tfilin (Micha Berger)
• 5. Tosafot d.h. Litekufot on RH 8a (Motti Yarchinai)
• 6. Re: why believe at all (Akiva Miller)
• 7. RLakish & RElozor - Is less than honest thinking a deception OR What is honest thinking (Chana Luntz)

From https://ohr.edu/this_week/insights_into_halacha/5324

Although to many the only notable aspect of the upcoming fast of Asarah
B?Teves (the 10th of Teves) is that it is by far the shortest fast day in
the Jewish calendar for anyone in the Northern Hemisphere (my heartfelt
sympathies to the South Americans, So?Africans, Aussies, and Kiwis),
nonetheless, the Fast of AsarahB?Teves is quite unique. For example,
exclusive to this fast is that it is the only one that we do actually
observe as a fast on a Friday[1]<https://ohr.edu/5324#_edn1>. Even
TishaB?Av, which commemorates the actual destructions of our
BateiHaMikdash, gets pushed off. Yet, obviously, to maintain this
distinction of being the only Fast Day that we actually do observe on
Friday, there must be much more to the Fast of AsarahB?Teves than meets the
eye. In turns out that Asarah B?Teves has several exceptional
characteristics that are not found in any other fast day.

See the above URL for a very comprehensive discussion of these issues by Rabbi Yehuda Spitz.

Professor Yitzchok Levine

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RAR wrote:
> "Mitzvos Aseh Shehazman Grama" has so many exceptions and details, and 
> those exceptions and details have their own exceptions and details... 
> A long time ago, I gave up trying to find a systematic set of rules 
> for which mitzvos apply to women.
> 
> It's a "siman/sibah" thing, I think...

And RMB replied:

<<I don't think it helps, as having so many exceptions and details not only
rules out causality (sibah) it also robs MASG of being a reliable sign for
guessing whether women would be exempt (siman).
We could shift the question, even: Instead of asking what the rule really is
for when nashim peturos, we can also ask why Chazal state a rule that
doesn't work. Why does the idiom even exist?
Which is why I think the rule DOES work, our problem is understanding it.>>

I am somewhat struggling to understand the problem here.  The rule clearly
works - as a presumption.  That is:

a) IF a positive mitzvah is time bound THEN women are exempt UNLESS there is
a pasuk or halacha Moshe M'sinai that includes them; while

b) IF a mitzvah is not-time bound, is negative or involve punishments THEN
women are obligated UNLESS there is a pasuk or halacha Moshe M'Sinai that
excludes them.

That, it seems to me, can be seen very clearly from Sukkah 28a-b.  The rule
ought to be that women are exempt from Sukkah based on the rule, but there
needs to be a halacha Moshe Mi' Sinai (and initially it was thought a
derivation of a pasuk) to exclude them because one might have thought they
were included for one (or both) of the reasons that Abaye and Rava give.
Likewise Yom Kippur, while because of the negative prohibitions and
punishments surrounding Yom Kippur, you would have thought from the rule
that women are included, that does not necessarily apply to tosefet Yom
Kippur which doesn't have those requirements, hence the need for a pasuk.

Indeed, not only does it work, it is clearly a form of halacha Moshe M'Sinai
itself - it is not a rule of Chazal (albeit stated by Chazal), because it
tips the presumption in the Torah one way or another, and requires psukim or
a halacha Moshe m'Sinai to correct in each given instance where it is not
meant to apply.

<<Anyway, I think emunas chakhamim compels us to say that if Chazal declared
a rule, that rule works. At least in the forward direction. We don't have to
say they are ONLY exempt from MASG to ask questions about talmud Torah.>>

Quite.  Except that I don't think it is so much about emunas chachamim in
Chazal declaring a rule, but about acceptance of Torah she ba'al peh as
transmitted by Chazal.  And that means in terms of understanding it, we are
in the territory of ta'amei mitzvot.  

RSRH is big on attempting to give ta'amei mitzvot, and that too is
considered part of Torah.  But as we know, giving a particular reason for a
mitzvah can be dangerous, because if such "reason" disappears or doesn't
apply, there are risks that people will apply the reason and not the
halacha.  Hence while someone might find any given ta'am satisfactory for
themselves, they do need to be careful not to state that this is "the
reason". I don't think that is any less problematic when applied to Torah
she ba'al peh than to Torah shel bichtav, and women's "identity" or women's
"ideal roles" fall within that category.  You could just as much say that
the Torah couldn't obligate women in these matters because there was only so
much social revolution it could have imposed on a bunch of slaves coming out
of Egypt (similar to the way the Rambam believes that korbanot were
instituted because the bnei Yisrael would not have coped without them, given
the surrounding cultures).

In addition, in this particular case, it seems key to make reference to the
machlokus between Rabbi Yehuda (plus Meir) and Rabbi Yosi (plus Shimon) as
to whether exemption means that a woman MUST not perform such mitzvot or
alternatively whether exemptions means it is non-obligatory but permissive,
ie that she MAY.   For example, if a woman performs such mitzvot, is she
over on bal tosif?  You might need a different ta'am depending on which one
of these two positions you follow.  That women are prohibited from
performing these mitzvot would seem much more in keeping with an "ideal
roles" and/or "shaping of identity" reason - than making performance
permissive. 

>-Micha

Regards

Chana

RMB writes:

<<The AhS discusses this (OC 89:1-...). Kedarko beqodesh when it's hard to
understand where the common practice came from, he tries figuring out whose
shitah (or combination of shitos) we must be holding like.>>

Bit puzzled why you quote OC89:1 and presumably OC89:2 without referring to
OC106:5-7.  

And I confess in OC106:7 he seemed to me to be expanding on the shita of the
Magen Avraham, rather than attributing it to the Rambam - although I agree
that AhS OC89:2 does read more like he holds this is indeed the shita of the
Rambam.

But holding that this is the shita of the Rambam is difficult, because in
Perush HaMishnayos L'Rambam Kiddushin perek 1 the Rambam writes:

"And positive mitzvot not dependent upon time ., and is it not known that
eating matza the night of Pesach, and joy on the festivals, and hakel, and
*prayer*, and reading the megilla, and the candles of Chanukah and the
candles of Shabbat, and Kiddush all of these are positive mitzvot dependent
upon time and every one of them are obligations for women like they are
obligations for men?"

Now one could say that the Rambam changed his mind between writing his
perush on the Mishna and writing the Mishna Torah, where he says in Hilchos
Tefilla perek 1 halacha 2:

"And therefore women and slaves are obligated in prayer because it is a
positive mitzvah which is not dependent upon time but rather the obligation
of this mitzvah is such that a person should seek grace and pray every day
and tell the praises of the Holy One blessed be he and after that ask for
his needs ..."

But clearly it is not ideal to say that, and, is not the more logical
explanation that the Rambam held (consistently) that women were obligated in
prayer from the Torah because it is not time bound, and as a consequence
from the rabbis even though then it is time bound, Noting in addition that
the Rambam says in perek 6 halacha 20  "Women, slaves and minors are
obligated in prayer.".  Given that katanim would seem to be only obligated
mishum chinuch, ie rabbinically, which suggests that this whole group is
talking about rabbinic obligations, thereby making it consisten with the
perush hamishnayos.

So at most one really ought to be saying that you could construct a shita
(which is probably not the Rambam's) that women are obligated from the Torah
in the way the Rambam obligates them from the Torah, but not obligated from
the Rabbis in the three daily prayers, and that is how I read the AhS in
OC106, although the language in OC89:2 is a bit more difficult.

<<According to the Rambam, the mitzvah to daven daily is a deOraisa (mitzvah
#5). (The Sifrei says so as well.) The Ramban holds that praying when in
distress is deOraisa, but daily prayer is miderabbanan. And this is the
position taken "bekhol haShulchan Arukh".>>

Agreed.

<<The AhS holds when the mishnah (Berakhos 3:1, on 17b) says that women are
peturos from Shema and Tefillin but are chayavos in Tefillah and Mezuzah, it
means only when davening in distress. Not the usual tefillas qavua.
Even according to the Rambam (Hil' Tefillah 1:2), the obligation on women
daily would not be 3 times a day nor any fixed siddur. Because that
derabbanan layer is shehazman gerama.>>

Where does the AhS say this?  Rather It seems to me that his conclusion in
OC 106:7 is as follows:

"And behold indeed according to Rashi women are obligated in three prayers a
day like men because according to him there is no distinction in rabbinic
mitzvot between dependent upon time and not dependent upon time and also
according to Tosfot so it is since according to them the Gemara explained
that even though it is a mitzvah dependent upon time in any event because
they need mercy the rabbis obligated them ...like men. .and according to
this it is difficult to justify that which our women are not careful in all
three tefilot according to the position of Rashi and Tosfot and the Rif and
the Rambam .."

<<So, a woman could say a couple of sentences of her own devise, or from a
Tehillim or from a Tekhines Buch, and be yotzeit. Say Modeh Ani? Make
berakhos? The only real risk of missing their chiyuv to daven or qabbalas ol
malkhus Shamayim ("Melekh Chai veQayam...", "... Melekh ha'olam...") is if
they say it without qavvanah.>>

This is the limud zechus of the Magen Avraham (as further expounded by Rav
Artscroll).  But what the Magen Avraham actually says (siman 106 si'if katan
2):

"A positive mitzvah:  So writes the Rambam as he holds that prayer is a
positive mitzvah from the Torah as it is written "and to serve with all your
hearts etc" but from the Torah it was enough once a day in any wording that
he wanted, and thus the custom of most women is that they do not pray
regularly because they say immediately in the morning close to washing [the
hands] some request and from the Torah it is enough [merely to do] this, and
it is possible that also the Sages did not obligated them more. But the
Ramban holds that prayer is from the rabbis and so is the opinion of the
majority of poskim ..."

The point being, to hold as you have set out above, you have to rely on a
minority opinion (that of the Rambam) that prayer is from the Torah AND you
have to ignore all the evidence that the Rambam himself held that women were
obligated in the rabbinic aspects of prayer, despite them being time bound,
and construct a scenario that "it is possible that the Sages did not
obligate them more".  And while that may be the position of Rav Artscroll,
it seems difficult to attribute it to the AhS.

>-Micha

Regards

Chana

On Tue, Nov 15, 2022 at 10:50:36PM -0500, Joel Rich via Avodah wrote:
> The shulchan aruch allows one to "borrow" another's tallit or tfilin on the
> assumption that one would be happy to have another do a mitzvah with his
> property.
> Questions: What if you have past history which might indicate this might
> not be a good assumption? ...

See the Arukh haShulchan OC 637:5 (from yesterday's Arukh haShulchan Yomi
http://aishdas.org/ahs-yomi ) about using someone else's sukkah without
asking.

The Taz says we assume that ("ustama kein hu") people are okay with your
using their sukkah to fulfil a mitzvah when it is unoccupied.
But not if he does care ("im maqpid") or he is using his sukkah already,
as "mistama" he would care about others joining him when he's eating.

(Maybe we are worried they're too polite to say they're bothered?)

Either way, notice when it comes to sukkah, we the rule only applies if
we don't have reason to believe the owner would object.

Tir'u baTov!
-Micha

-- 
Micha Berger                 Integrity is choosing to practice our values
http://www.aishdas.org/asp   rather than simply professing them.
Author: Widen Your Tent                  - Brene Brown
- https://amzn.to/2JRxnDF

The Tosafot comment d.h. Litekufot on Rosh Hashanah 8a can be a difficult
one to understand unless one is familiar with the subject matter dealt with
in it. I have written an article translating and explaining the whole of
that Tosafot, prefaced by all the necessary background knowledge needed for
a thorough understanding of it. The Chazon Ish tried to explain it and got
it almost right, except for a slight flaw in his calculations, despite
which he ends up with the correct result though his reasoning for it was
slightly flawed. (That too is explained in my article.) 

However the author's reasoning in the last few sentences of that Tosafot
seems to defy all understanding. Those sentences begin with the words, "it
is a strange thing (davar temah) that Rabbi Eliezer and Rabbi Yehoshua were
in dispute [as to whether the world was created in Tishrei or Nisan.] and
the author goes on to say that they could have resolved the matter
empirically. ... On page 10 of my article, I explain why that last
paragraph of that Tosafot comment seems to defy understanding. I'd be very
interested if anyone can offer an explanation of what was the thinking of
the author of that Tosafot comment in that last paragraph.
My article on that Tosafot can be found at the following web-address, which is case-sensitive:

http://tiny.cc/jewishcalendar/downloads/Tosafot-RH8a.pdf
Note: it is item 3 in a trilogy of related articles. The other two are at
the same address, but the filenames are: (1) BH-Myths-Maths.pdf? and (2)
BH-Yonatan.pdf

Article 2 of that trilogy is relevant to the question I posted here
yesterday asking if anyone knows who wrote the perush Yonatan on the Targum
Yerusalmi on the Torah, which is erroneously headed Targum Yonatan. It also
explains why the author of that Targum thought it was important to include
the extra (non-biblical) material he added to his translation of Bereshit
1:16.



 
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.
R' Joel Rich asked:

> In the post modern times that we live you can?t prove anything
> to anybody ( like Ramban ? no slam dunk proofs in Gemara
> commentary)
> Perhaps the best we can hope for is weight of evidence, but if
> we hang our hopes on the incredible wisdom of Torah proof, we
> should be aware that there are others selling other incredible
> wisdom as well. I wish I had a better answer, but this is a
> subset of the "why believe at all" issue. I often think about
> Rav Lichtenstein?s piece on the source of faith being faith
> itself. The challenge is that if you don?t have that "loving
> feeling" yourself, somebody else articulating it to you is not
> necessarily communicable unless you can do the Vulcan Mind Meld.
> I wish I had answers.

I believe that Hashem designed the universe such that it is impossible to
have a "slam dunk proof" of His existence - or of His (chalila)
nonexistence. All the proofs I've ever heard (in either direction) boil
down to a proposition which is so incredibly likely (or unlikely) that the
converse is preposterous. We call it a "proof" because the arguments
against it are negligible. But NOT slam-dunk impossible. "Negligible" is in
the eyes of the beholder.

In case I've lost anyone, I'll give a simple example: The "Artist" proof.
This world is so detailed and perfect that it could not possibly have
arisen by chance; there MUST be a Creator. Yet there are indeed intelligent
people who deny this, and they can rationally explain their views that the
universe IS a random result.

Some might say that there does exist a slam dunk proof; we just haven't
discovered it yet. I disagree. Such a proof will never be found. Within the
context of Torah belief, such a proof is categorically impossible, because
it would conflict with Bechira. Such a proof would force us to believe, and
Hashem designed the universe to allow Freedom of Belief, and therefore (I
believe) such a proof is not allowed under the rules.

> ... if you don?t have that "loving feeling"
> yourself, somebody else articulating it ...

Some people think that if an idea can't be proven, then it is not
necessarily true, and they honestly don't understand why we're so gullible
as to believe it. Someone on this list (not sure who, probably RJR or RMB)
once pointed out that there are two kinds of truths: Some things are
logically provable. but there are other things that I believe because I
have *experienced* them. I will never be able to prove to you that I love
my wife, or what I had for lunch today. But because I personally
experienced these things, I KNOW them to be true.

My ancestors pointed with their fingers and eyes, and declared, "Zeh
Keili!" and I accept their testimony. Some individuals are blessed with
such experiences themselves. But, indeed, as RJR writes, without a
Vulcan Mind Meld, there's no way to communicate a first-person story to
someone else, without it turning into a second-person story.

> I wish I had answers.

Part of me wants very much to agree. The other part is warning me to be
careful of what we wish for, lest we get it. Would we really be better off
with those answers? Look through history at those who did experience
miracles openly. How long was it from Krias Yam Suf to the Egel Hazahav?
Eliyahu Hanavi led an amazing kumsitz on Har Hacarmel, and he won over the
entire nation - but for how long?

Before I stop typing, I want to express some confusion about the title of
this thread. RJR's post was about the difficulty of belief, while the title
is about "why", which is a very different thing, I think.

Why do I believe? Personally, it was never a decision that I made
deliberately. My faith was fairly weak for a very long time, but the more
Torah I learned, the more I saw how the pieces all fit together. Bit by
bit, my faith got stronger, and my doubts became [to reference a word from
several paragraphs above] negligible.

Akiva Miller
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RMGB wrote:

<< R Elozor was angry with RLakish for voicing a challenging opinion [which
he dismissed] without disclosing that it was in fact the objection of
RYochanan.>>

Sorry, have I missed something here?  I thought it was Reish Lakish (the
talmid chaver of Rabbi Yochanan) that was angry with R' Elozor (a junior
talmid), not the other way around?

<<I suggested that in matters that are Shikul HaDaAs it is correct to bow to
one?s superior but not in other matters.
Reb Micha queries - When isn't it shiqul hadaas? - The answer to that Q is -
when one feels that there is only a slight preference for one
ruling/interpretation over the other. How large is ?slight?? I have no idea
but people generally know it in their gut.
In other words, what may be clear to the mind of one may not be to the mind
of another.>>

But does not the term Shikul Hadaas have a specific meaning?  And is it not
defined in Shulchan Aruch Choshen Mishpat siman 25 si'if 2 as "like a matter
in which there is a machloket tanaim or amoraim that they did not rule the
halacha like one of them explicitly, and he does like one of them and he
doesn't know that already the matters has spread in all the world like the
words of the one".

In our case we are dealing with two Amoraim.  And the halacha as now
poskened is that in a dispute between Reish Lakish and Rabbi Yochanan, the
halacha is like Rabbi Yochanan except in three circumstances (Yevamot 36a-b
in the name of Rava), and the disagreement here is not one of those.  So we
know from later decisions (ie Yevamot) that this dispute between Reish
Lakish and Rabbi Yochanan is a machlokus amoraim where they did in fact rule
the halacha like one of them, so this halacha is today not defined as shikul
hada'as.   But without that ruling in Yevamot (which was clearly later than
R' Yochanan and Reish Lakishes disputations), why is it not shikul hada'as -
ie a disagreement of two amoraim where it hadn't yet been decided that we
follow Rabbi Yochanan over Reish Lakish?

Slightly earlier

<<If he would pay heed to RYochanan?s opinion in violation of his own
understanding, would that not be contrary to the Halacha?>>

It seems to me though that the same query could be asked about the scenario
set out in Shulchan Aruch Yoreh Deah siman 242 si'if 31in the Rema - which
is where, instead of it being a different case (albeit the exact same
scenario) - here the person who asked the halacha then goes and asks for a
second opinion.  And the Rema rules:

"A chacham that forbids, his colleague is not permitted to permit from
shikul hada'as, but if there is to him a kabala that he is mistaken... or
that he is mistaken in a matter of Mishna, he is able to permit... , And
even if he makes a mistake in  shikul hada'as, he is able to debate with one
who ruled [first] until he retracts .... And therefore there is no
prohibition for the asker to ask ...and so long as he knows that the first
has already ruled to prohibit."

That is, when there has already been a ruling on this case, what is required
of the asker is that he must tell the chacham that he is being asked as a
second opinion.  Ie it is regarded as essential that the second posek has
the knowledge that the question has been previously asked and what the
result was.  And, if that is done properly, then it is fine to ask for a
second opinion, and for the second chacham to disagree, and state he
disagrees with the first.  BUT it is then his job to contact the first and
have a debate about it.  And the Shach there (si'if katan 58) says that if
he is able to convince the first, well and good, and the ruling can be
retracted, but if not, then he needs to say to the questioner - this is what
I hold, but what can I do, it is not in my hands to cause a retraction of
the original ruling.

In our case, while it was not the same kohen, it was exactly the same
scenario, and we are dealing with a ruling of the Rav Muvhak of Reish Lakish
(albeit his Rav Chaver). Given what we know about not ruling in the area of
one's Rav Muvhak except with permission etc, it seems totally right to me
that even though Reish Lakish had been given permission, he should have been
told by Rabbi Elozor that in the particular scenario that had come before
him, his Rav Muvhak had ruled in a certain way, so that at the very least he
could enter into debate with his Rav Chaver in a similar manner to where it
was exactly the same kohen (where the asker would have been required to tell
him that Rabbi Yochanan had already ruled).  And that it is not that Reish
Lakish should have hidden his opinion - but that the right course of action
in this case (ie different kohen, same scenario), as with the case of the
same kohen, was to debate with his Rav Muvhak until either R' Yochanan
conceded or it was clear that he would not.  And if he didn't then it might
even be appropriate for Reish Lakish to say - "I have ruled this way, but
what can I do, R' Yochanan is the leading talmud chacham in this area, I
only rule due to his permission, and therefore his ruling is the one that
prevails in this area, despite my disagreement".  That does not seem
contrary to the halacha or improper at all, it just requires the appropriate
humility of a talmid, albeit a talmid chaver, towards his Rav and an
acceptance that maybe he doesn't always get things right, no matter how
strongly held, and that when push comes to shove, his Rav's ruling prevails.

>Meir G. Rabi

Regards

Chana



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