Avodah Mailing List

Volume 08 : Number 100

Tuesday, January 29 2002

• RE: Din Torah
• Re:Re: Din Torah
• Re: Din Torah
• Re: FW: Subject: Din Torah
• Re: Din Torah
• Re: Re: Din Torah
• Re: Din Torah
• Medrash Source?
• Re: Yam Suf
• RE: Medrash Source?
• Yam Suf
• RE: Din Torah
• RE: Din Torah
• RE: Din Torah
• Re: Din Torah
• Re: ta'anis esther again
• Re: ta'anis esther again
• Re: Taanis Esther yet again, also Mother's Day.

<it's not supposed to be endorseable. Shimon is suing Reuvain in Beis
Din for the money that he never received. Who wins and why? What are the
other side's ta'anos? ... - Carl>

It is obvious to me that I am missing something big time here, since
the solution seems obvious to me. I can't give you cites to prove it,
but common sense says that:

If Reuvain sent a check to Shimon's insurance agent, which the insurance
agent then cashed, then the insurance agent seems to me to be the real
"other" party to the case, either on the side of Reuvain or Shimon.

If the insurance agent had agreed beforehand to accept the money for
Shimon, then Shimon should be bringing his insurance agent to bais din
to recover the money, and not Reuvain.

If, on the other hand, Reuvain had been specifically asked to send
the check only to Reuvain and specifically told NOT to send it to the
insurance agent, then Reuvain should have to pay Shimon and Reuvain
should then go to bais din to collect the money mistakenly paid to the
insurance agent that the insurance agent had no business cashing.

---Rena

On 25 Jan 2002 at 14:38, Gershon Dubin wrote:
> "Carl and Adina Sherer" <sherer@actcom.co.il> writes:
> :The check cleared but Shimon did not receive the money. Someone else
> apparently got a hold of the check and endorsed it. The insurance
> agent never got the check either. 
> 
> My question still stands:  whose responsibility is it if the money
> never gets there?  What is lehavdil the civil law on this?

That's exactly what I'm asking (as a halachic matter). I don't want 
to tell you what I think because that will give away which side I am 
(obviously I think the Din Torah is worth pursuing). 

-- Carl

Please daven and learn for a Refuah Shleima for our son,
Baruch Yosef ben Adina Batya among the sick of Israel.  
Thank you very much.

On 25 Jan 2002 at 11:34, afolger@ymail.yu.edu wrote:
> What I don't understand is whether the insurance company has the cheque,
> and if so, why it doen't either exchange the cheque for a well written
> one, or cashes it in and pay Reuven?

The insurance agent never received the check. The only reason Shimon 
knows what happened to the check is that the insurance agent was sent 
a copy of the check by Reuvain when the insurance agent called 
Reuvain and said that the check was never received. 

-- Carl

I thought this one was on Avodah....

On 25 Jan 2002 at 14:36, Steve Katz wrote:
> One of my friends responded thusly to R Carl's question:
> As a matter of halacha, assuming Reuven is liable for the damage (hitting
> the pothole probably does not qualify as oness, so that Reuven would be
> liable because his property caused damage under a rubric of regel --
> assuming cars are like cows), he is required to pay.  The question then is
> whether under these facts the sending of a check can be regarded as payment.
> There is some halacha about designating someone as an agent or otherwise an
> acceptable recipient of goods for purposes of shmira, so that delivery to
> the insurance agent might qualify as delivery of the check.  However, there
> are other issues here.  First, it appears the insurance agent unilaterally
> told Shimon where to send the check, so Reuven could argue that any
> direction was unauthorized.  

Recall that Reuvain was supposed to send the check to Shimon.... 
Maybe we should call Reuvain the mazik and Shimon the nizak....

Reading between the lines, however, let us
> assume that having the insurance agent fix the car meant he was authorized
> to ask for the payment.  

Shimon got the car fixed himself. He had the agent collect payment 
because that way the agent could certify that payment was not 
received in the event that Shimon wanted to make a claim against his 
own insurance company.

The question then is whether Shimon acted in
> accordance to the authorization.  Plainly, he did not, because (a) the check
> had the wrong name; and (b) it was apparantly misaddressed.  Also, there
> could be a halachic issue about whether a check is really cash or rather a
> promise to pay, so that by promising to pay via check, Shimon had not made
> payment even if he had properly written and mailed the check to the
> insurance agent.
> 
> Bottom line.  My reaction is that by sending a check through the mail,
> Shimon assumed the risk that someone would fraudulently intercept the check
> and cash it.  He was supposed to pay Reuven and didn't.  Reuven is
> blameless, and Shimon should pay Reuven and seek his remedy from the culprit
> or the bank which paid on a false endorsement.

Is there such a halachic concept as assumption of the risk? I suppose 
in this case there might be. 

I also thought that the post office might be considered a shaliach 
l'holacha and that the insurance agent might be a shaliach l'kabala. 

-- Carl

Reb Carl wrote:
> I also thought that the post office might be considered a shaliach 
> l'holacha and that the insurance agent might be a shaliach l'kabala.

But even if that's the case, the shaliach l'kabala never received
the check. So how can the mazik be said to have paid the check to the
shaliach of the nizak?

In secular law, I assume that the result is the same--putting the check
in the mail does not free the sender of risk of loss unless the sender
can prove that the recipient received the check. (IIRC when merchandise
is sent via common carrier, the sender is reponsible for loss unless
the parties agree otherwise.) Here, the shaliach l'kabala (insurance
agent) denies having received the check and it possible that the check
was intercepted and never arrived at the agent's office. (It would
be a different story if the check arrived at the agent's office and an
employee of the agent embezzled the money).

Kol tuv,
Moshe

I think it's pretty clear that a loan must be repaid leda'as, as opposed
to gezela or avedah.

Gershon
gershon.dubin@juno.com

<..Is there such a halachic concept as assumption of the risk? I suppose
in this case there might be. I also thought that the post office might
be considered a shaliach l'holacha and that the insurance agent might
be a shaliach l'kabala. -- >

Since rcarl did not react and i'm curious to hear his assessment as
a legal eagle, I'll repeat a version of the second point i made in my
original response. Even naniach/lu yitzur the post office is considered
your sh'liach l'holokhoh and the insurance agent a sh'liach l'qabboloh
(iffy assumptions, especially the latter unless there is additional
guidance to the agent which Rcarl did not mention is original exposition
of the facts) -- nevertheless the import of the sugyoh in gitin 63b --
chayyov b'achrayoso -- is even if the sholiach was granted qabboloh
status (which is the implication of "lo yachzor" in context of the sugyoh
there). thus i don't see why an application of this case should not have
reuvain cutting a new check to shimon, (and there is simply no need to
darshen the impact of additional chesronos associated with incorrect
names, genders, addresses etc)

As an aside, i'm also considering Rcarl's suggestion that the postal
system has assumed the status of sh'liach l'holokhoh. As explained
above i believe this has no bearing on the outcome but the question is
interesting as a stand alone which would have nafkoh minoh for other
scenarios. One of the principles ordinarily applied to sh'lichus is
"chazoqoh sh'liach oseh sh'lichuso". Now, one could clair whether such a
chazoqoh is merely an observed or imputed characteristic of sh'luchim or
perhaps a necessary component of that which may be designated a sholiach
in the first place, and whose lack might oaqeir the very possibility of
an appointment as sholiach (i am not unmindful that this chiluq may be
posed in brisker jargon, but refrain from doing so since my abandonment
of this derech). Now if the latter is true, one may then defend the
position that the israeli postal system could never have the status of
sh'liach l'holokhoh, whereas the american system would. (i lean towards
this and out of personal history as well -- some time ago my father z"l
sent a check to israel, the recipient never got it and it later turned
up cashed in a honk kong bank, endorsed -- sad to say -- by a ba'al
t'shuvoh yeshivoh known for rehabilitating some rough personnel. One
assumes that one/some? of them may have been still working through a
kink in that t'shuvoh process)

Mechy Frankel                       W: (703) 588-7424
michaeljfrankel@hotmail.com         H: (301) 593-3949
michael.frankel@osd.mil

I'm looking for the source of two Medrashim; perhaps somebody can help.

1. Dosan & Aviram tarried in Mitzraim and later had their own krias
Yam Suf.

2. During krias Yam Suf, water _everywhere_ (other oceans, wells,
etc.) similarly split.

Thank you!

In addition to the already posted marei m'komot on "one sided k'riat
Yam Suf, i.e., Arakhin and Hizkuni and the Bamidbar 33 which should have
been p'sukim 8-11 instead of 6 - 8, one can add the following:
    Rambam Peirush Hamishnayot, Avot 5:4
    Ibn Ezra on Shmot 14:29
    Rada"k, Shof'tim 11:16
    Midrash Lekach Tov on Shmot 14:17

For an anti one-sided, see siddur of R' Ya'akov Me'Emden, Pesach Hagada
on Dayeinu.

I found the above list that I once prepared for a talk, but haven't found
the two articles from which I stole the sources. The articles, obviously,
gave much more. I am quite sure that one article was by either Dr. Boaz
Spiegel or his father Prof Ya'akov Spiegel of Bar Ilan U. The author of
the other, which I remember as having much more explanatory material,
is completely forgotten. I remember giving a copy to a neighbor and will
ask if he still has it. I probably remember the first article because R'
Ya'akov Spiegel is, by marriage, my wife's cousin.

Sorry I can't supply more at the moment.

k"t,
David

> 2. During krias Yam Suf, water _everywhere_ (other oceans, wells,
> etc.) similarly split.

try Shmos Rabba 22:4

Akiva

Shlomoh expressed surprise that there is a view that the path made
through the yam suf actually crossed that body of water (rather than
bending back). Sorry to disillusion the believers in the semi-circular
path, but the major commentators on the Parsha (Rashi, Ramban, etc.) do
not draw the semicircular chidush. Their silence suggests, rather,
that they viewed the crossing as being from one shore to its opposite.
There is no disproof, whatever, to this simple understanding of the text
from either this Parsha (Beshalach) or parshat Ma'asei. It helps to
have a map of Egypt, the Sinai peninsula, and the Gulf of Suez (an arm of
the Red Sea) when one is studying these parshiot. Aryeh Kaplan's, "The
Living Torah": supplies both the maps and the explanation of the text.
The crossing of the yam suf took place, apparently, near the head of
the Gulf or its extension further inland to the Bitter Lakes.
 Initially, the Jews reached Etam (on the far side of the yam suf) by
traveling around the end of the yam suf. They were then told to turn
back and camp along a point on the near (Egyptian) side of the yam suf so
as to entice the Egyptians to pursue them.. Once the yam suf was split
and the pursuing Egyptian forces were drowned (their intended fate),
the Jews continued on their original path in the Etam desert.( having
crossed the yam suf this time instead of going around it). Mention of
the yam suf recurs at several points in their subsequent journey since
it (the Gulfs of Suez and Elat) is a long body of water which forms
the entire southern boundary of the Sinai peninsula. Nor is the above
description in conflict with the Gemara in Erechin 15a or Pesachim 118b.
The expressed fear was that the pursuing Egyptians would meet them on
the far side of the yam suf by going around that body just as the Jews
had previously done. Tosfot in Erechin uses the semicircular path
in the yam suf approach based on some conjectured geography. However,
using the actual geographic location of the main bodies of water in the
region makes that approach unnecessary.

Yitzchok Zlochower

>> If Reuvain sent a check to Shimon's insurance agent, which the insurance
>> agent then cashed, then the insurance agent seems to me to be the real
>> "other" party to the case, either on the side of Reuvain or Shimon.

> The insurance agent never received the check.

Okay, now I understand what I was missing.

It seems, then, that if a check was sent by the party of the first part
:-) but never received by the insurance agent, then the money is still
due, as the party for whom it was intended never received it through no
fault of the shlichim.

The sender [in my humble non-legal opinion] should be required to write
another check and then can or must try to find out [maybe through bank
records? Filing a complaint with police?] who did indeed cash the check
and try to go after this person for the money.

I am not positive that the doar should have any responsibility during its
shlichut other than normal precautionary procedures against theft. If
mail is stolen in any case, I am not sure that this can be used as a
reason to refuse payment to the still zocheh party.

The insurance agent can't be at fault for something he/she never received,
unless it can be proven that he/she did receive the mail and was negligent
in keeping it from theft.

-Rena

On 26 Jan 2002 at 20:39, Rena Freedenberg wrote:
> It is obvious to me that I am missing something big time here, since
> the solution seems obvious to me....

> If Reuvain sent a check to Shimon's insurance agent, which the insurance
> agent then cashed, then the insurance agent seems to me to be the real
> "other" party to the case, either on the side of Reuvain or Shimon.

The insurance agent never received the check. 

She's certainly not at fault. (She's also probably the most yashar 
person involved in this). 

> If the insurance agent had agreed beforehand to accept the money for
> Shimon, then Shimon should be bringing his insurance agent to bais din
> to recover the money, and not Reuvain.

Not if she never received the check. 

> If, on the other hand, Reuvain had been specifically asked to send
> the check only to Reuvain 

I assume you meant Shimon the second time. 

and specifically told NOT to send it to the
> insurance agent, then Reuvain should have to pay Shimon and Reuvain
> should then go to bais din to collect the money mistakenly paid to the
> insurance agent that the insurance agent had no business cashing.

But that's not what happened. 

-- Carl

mailto:cmsherer@ssgslaw.co.il
mailto:sherer@actcom.co.il

Please daven and learn for a Refuah Shleima for my son,
Baruch Yosef ben Adina Batya among the sick of Israel.
Thank you very much.

On 27 Jan 2002 at 23:24, Rena Freedenberg wrote:
> It seems, then, that if a check was sent by the party of the first part :-)
> but never received by the insurance agent, then the money is still due, as
> the party for whom it was intended never received it through no fault of the
> shlichim.

> The sender [in my humble non-legal opinion] should be required to write
> another check and then can or must try to find out [maybe through bank
> records? Filing a complaint with police?] who did indeed cash the check and
> try to go after this person for the money.

It has been suggested that the sender should go after the bank for cashing
the check (possibly) without proper identification of the recipient (I
gave the name of the recipient as "Yosefa Shimon" which is not the real
name on the check - but the real name on the check is not a common name
in Israel). So far, the sender (Reuvain, the mazik) has declined to do so.

> I am not positive that the doar should have any responsibility during its
> shlichut other than normal precautionary procedures against theft. If mail
> is stolen in any case, I am not sure that this can be used as a reason to
> refuse payment to the still zocheh party.

Can it be a reason to go after the doar? I would think not unless the
sender sent the check by registered or insured mail. But that's more
a question of practice than it is of halacha. After all, how could the
doar make a shvua?

> The insurance agent can't be at fault for something he/she never received,
> unless it can be proven that he/she did receive the mail and was negligent
> in keeping it from theft.

Now, can someone prove all this? So far, the only mareh makom I've heard
on list is the Gemara in Gittin 63.

-- Carl

In Avodah V8 #97, CSherer wrote:
> ...and the insurance agent sends the bill on to
Reuvain, with a request that Reuvain send payment to Shimon in care of
the insurance agent....The check was sent to
Shimon at the insurance agent's address - no "in care of." Furthermore,
instead of being made out to "Shimon Joseph," the check was made out to
"Josepha Shimon." .... Looking forward to hearing from all of you :-) <
If you insist :-).  I don't see how R can justify his check-writing
actions,
assuming that he admits receiving the proper instructions from the
insurance agent, given that he swapped last and first names (and
added an "a" for good measure) and that S's family name could
easily be someone else's first name & S's given name could,
by admission of his own actions, be someone else's family name.
> The check was also marked "pay only to payee;" it's
not supposed to be endorseable. <
But the check's payee isn't S, even if R intended it to be S.

All the best from
Michael Poppers * Elizabeth, NJ

RYGB I: <<We do not have the legislative powers that Chazal possessed
(in the matter of the Luach this is particularly so, as we might argue
that Semuchim are required for this purpose...). One of the criteria we
lack in this regard is Ru'ach Ha'Kodesh, another is Kibbutz Chachmei
Yisroel, and several more. To the best of my knowledge, this idea of
precedent in legislation (not psak -- promulgation), is seeing light here
on Avodah for the very first time... (The Halachic analog of this case
is the Rashba's ruling, cited l'hlacha by the Rema in EH, that we have
no power to promulgate an Afke'inhu Takkanah in post-Talmudic times.)>
and RYGB II <Chazal b'ru'ach kodshom (although this does not require,
perhaps RhK) knew to be masmich ta'anis to simcha and lead up to the
Simcha of Purim with the Teshuva of TE (and, a Religious Zionist would
perhaps take this as ample precedent for Yom Ha'Zikaron preceding Yom
Ha'Atzma'ut) -- and this, too would be mosif nofech in the ShL quoted
by my esteemed opponent: TE is a minhag she'heen'heegu Chazal b'ruach
kodshom as an essential preliminary, linked and bound to Purim, which,
of course, has inherent event-date significance>>

let me point out one additional salient factoid which might clear away
some of the smoke (very learned smoke to be sure) blowing about this
response. while RYGB wants to argue some inherent difference in principle
between chazal establishing a calendrical date and ourselves (and who
could disagree. they either used or were underpinned by ruach haqqodesh,
unlike we mortals -- though r. dessler finds contemporary ruach haqqodesh
in plentiful supply as well -- though admittedly he was not talking
about the knesset) it is quite irrelevant to nidon didon. And that is
because we may safely hold to the shittoh that chazal simply had nothing
to do with the establishment of ta'anis esther. Every bar bei rav who
first learns the pereq of m'giloh niqreis is at some random point in the
proceedings suddenly struck by the oddity of discussing the circumstances
of reading m'giloh on the day he knows of as ta'anis esther! (And while
the sh'iltos much later on finds a s'mach for a fast on 13 adar from
"vayiqqohalu.". -- for a fast day, the actual q'hiloh lakkol d'roshoh
of the g'moroh itself is brought for a quite different reason and knows
nothing of such a s'mach). Instead we have the (imputed) testimony
of the most significant of all rishonim (l'fi the late prof agus z"l),
i.e. the maharam mi'rutenberg -- actually from his talmid the m'chabeir of
haggohos maimonios who doubtless is transmitting his rebbe's qabboloh --
that ta'anis esther is a post-chazal, post-talmudic institution of the
geonim. This is also quoted without demurral by the tur. So why bother
parsing the relative ruach haqqodesh of chazal here or asserting that
chazal were masmich the fast to purim day? they simply didn't.

<As to the terminology "minhag' -- all our ta'ani'os have a status
of minhag -- see R' David Pahmer's essay on the IDL in the Journal of
Halacha and Contemporary Society as to why in Stocknolm they could have
a minhag to end 17 Tammuz at 9:30 p.m.).>

Simply irrelevant to the discussion. Also, not to get to wrapped up in
the terminology of minhog. It was a term that i, not the quoted m'qoros
introduced here loosely without implication to its precise technical
parameters -- which in itself is a matter of dispute. But, no matter.

<And finally a serious objection. A number of correspondents have noted
that, appearances to the contrary, TE is not disjoint from its event-date
as it commemorates not esther amd mordechai but a different fast
associated with 13 adar, (either for rachamim or for battle depending
whether you like rashi or tos'fos). Despite the obvious problems, --
besides the name itself one must now pilpul away the most obvious
p'shat in div'rei hatz'tzomos v'zaqosom -- this is indeed a widely
accepted understanding amongst the rishonim. Nevertheless it is not a
universal opinion as the Ra'vad quoted by the Ran understands div'rei
hatz'tzomos to indeed refer to mordechai and esther. And even l'shittas
the (admittedly) majority there is clearly no objection in principle to
moving off the event-date, since there is yet another! TE lurking in the
historical halakhic background. a number of sources (earliest seems to be
meseches sof'rim) quote a different minhog of ta'anis, and that is the
ancient practice of palestinian scholars to fast three non-successive
days immediately following purim in explicit commemoration of the three
day mordechai and esther fast. Along with the comment that it was moved
from nissan because of the mishkon. And nobody saw anything strange about
any of this. Now that's what i would call a slam-dunk game over. Which
naturally leads me to address RYGB's final question: >

RYGB:<Anyone, anywhere, as an individual or as a group can adopt a
ta'anis yochid anytime they want (except of course, in Nissan -- hint,
hint...). And, to boot, inherent in Hilchos Ta'ani'os is the concept
of being "pore'ah" missed ta'ani'os. A takkana kevu'ah is something
else altogether. That is what we are discussing and that is what lacks
precedent altogether.>

Now, it is ok to disagree with me on a matter of interpretation. you
would be incorrect to do so, but it is a free country and not everybody
gets up every morning with their thinking caps on quite straight. i am
reminded of my very distinguished rebbe in graduate school who kept a
shrunken head on his shelf, often declaiming that it had once belonged
to the last physicist who disagreed with him. luckily avodah is not yet
as rough a venue as academia. But it is really quite beyond the pale --
and i imagine probably illegal too (Rcarl?) -- to simply make up new
facts and ignore the ones that exist. I understand that the fact that
there was a regular, qovu'oh -- year after year and dor achar dor on a
regular calendar -- ta'anis esther, recorded in m'seches sof'rim and still
cited by the tur, divorced from the event-date, is uncomfortable for your
chidush that such a thing couldn't exist, but hey, there it is (and, as
dave barry might say, i'm not making this up) also as Willy S once wrote,
facts are stubborn things. Now i certainly noticed your pass at (hard to
believe a gavroh rabboh k'mos'khoh actually took that notion seriously)
defining this away as a ta'anis yochid -- a rather odd take on a communal
ta'anis that endured generation after countless generation. And i'm afraid
that we must relegate your other (tentative?) suggestion of porei'oh to
the blowing smoke category. needless to say that such a communal and
annualy scheduled phenomenon can not have the slightest qesher to the
inyon of "porei'oh" with its implicit suggestion of episodic happenstance
in special circumstance.

<(BTW, you have not addressed the other flaws in the YhS legislation --
but I assume you are not arguing the rectitude of YhS, just trying to
cast confusion on some aspect of the arguments against it.)>

you are correct that i was just focused on a minor technical point,
but i also cited en passant, but did not expand upon, the thanksgiving
precedent. I do so now. It is my own feeling that a day legislated to the
regular calendar by secular authorities, which demand neither s'lichos,
tzom, or any other ritualized religious behavior, which does not change
the diurnal religious rhythms of the halakhic day in the slightest
-- simply has no religious resonance at all. Just like thanksgiving
(where we do enjoy a regularly scheduled turkey meal). However,
i also recognize the existence of other halakhic opinions (which
i do not share -- following rybs) by g'dolim v'noro'im (and, i'm
recently given to understand, also atzumim) e.g. r moshe, r. hutner,
that do find halakhic vectors to thanksgiving and either proscribe or
circumscribe its regular celebration. So, as far as i'm concerned, it
is entirely appropriate for the knesset to pick a day of their choosing
to commemorate the holocaust and for frum participation -- even under
the assumption that there is no date-connection to the events, though
of course we have now been informed that there is. Blowing a siren and
moments of silence do seem to me a dignified expression of remembrance
and entirely appropriate. Those wishing to meld other remembrances within
a religious framework might well be advised to turn to tisha b'av --
or one may revisit the halakhic disputes surrounding the establishment
of a calendrical day, yom ha'atzmaut, which does affect the religious
ritual, but that is a quite separate matter.

Mechy Frankel W: (703) 588-7424
michaeljfrankel@hotmail.com H: (301) 593-3949
michael.frankel@osd.mil

I thank Dr. Frankel for forcing me to expound on the matter of TE,
as it Inyana d'Yom and appropriate to do so.

To be sure, TE presented a conundrum to Chazal. They were compelled, by
writ and by logic, to commemorate "Divrei ha'Tzomos v'Za'akosom" (Rambam
Ta'anios 5:5), but could not, early on, do so on 13 Adar because it was
one of the happy days of Megilas Ta'anis (Yom Nikanor or Yom Turynus).
Furthermore, in Mes. Sofrim 17 & 21 it is noted that the three days of
Esther must be made up (a la the general convention of Peri'as Ta'anios)
over the course of three days - so the minhag was to do a BH"B after
Purim. The Rosh, citing Rabbeinu Tam (Megilla 1:1 and 1:8) holds that
nevertheless, TE on 13 Adar was a takkana kevu'ah of Chazal even prior
to bottlo Megillas Ta'anis - I would assume a dormant takkanah that
generated annual necessity to be porei'ah the ta'anis.

After bottlo Megillas Ta'anis, the problem became less acute, as 13
Adar was available, and was readily linked to the ta'anis as the Yom
Kehilla. The Maggid Mishne holds that this was a custom instituted
by Chazal themselves. Indeed, it seems that he holds it was a takkana
kevu'ah. Others - including the Rogatchover - argue, and hold that the
minhag was accepted by the nation and enjoys the status of "puk chazei mai
ama dvar" (this has to do with whether the first line in Ta'ani'os 5:5 is
connected to that halacha and TE or the previous halacha and all ta'ani'os
- as I mentioned in an earlier post, all our ta'ani'os other than YK and
Tb'A have the status of minhag, and the MM holds this is explicit here
in the Rambam. See the Shinuyei Nus'cho'os in the Shabsai Frenkel Rambam.)

Some Rishonim - the Me'iri in Magen Avos23, the Kolbo in 45 and 62
- hold that TE is a ta'anis shel simcha! It is a portion of pirsum
ha'nes, hodo'oh and shevach, and is, therefore, of course, directly
and essentially linked to the event of the date, i.e., the war against
our enemies.

Even the Avudrohom and others who say the Ta'anis is post-Chazalic,
explicitly link it to the war that was waged on that day - again, the
event-date link - and pin this link to a Yerushalmi.

There's a lot more to add - a bunch of Maharils, and, of course, later
sources - and anyone can achieve instant erudition as I have here via the
Bar Ilan CD, but the gist is clear: TE is either a minhag of hoary origin,
even unto the times of Chazal, which is a pira'on of the impossible dates
for ta'ani'os of Pesach and Nissan; or an event-date commemorative, linked
directly to the "Nikhalu v'amod al nafsham" of the 13th of Adar. For
all the reasons I have enumerated in prior posts and expounded here,
it is incorrect, plain and simple, to employ TE as a precedent for YhS.

I need to address Dr. Frankel's "new" sevoro, the one in the following 
paragraph:

>you are correct that i was just focused on a minor technical point, but i 
>also cited en passant, but did not expand upon, the thanksgiving 
>precedent. I do so now. It is my own feeling that a day legislated to the 
>regular calendar by secular authorities, which demand neither s’lichos, 
>tzom, or any other ritualized religious behavior, which does not change 
>the diurnal religious rhythms of the halakhic day in the slightest ­ 
>simply has no religious resonance at all. Just like thanksgiving (where we 
>do enjoy a regularly scheduled turkey meal). However, i also recognize the 
>existence of other halakhic opinions...

Thanksgiving, it may be argued, in no way tampers with the calendar. Last 
Thursdays in November are not the same thing like perennial 27 Nissans. But 
in this point, guffa, ozen shoma'as discerns the Chillul Hashem. The U.S. 
"enjoys" separation of Church and State, and Thanksgiving is a purely 
"secular" holiday. Israel possesses a State Religion, and we TIDE adherents 
believe that the rules of Judaism cannot be a thing apart from the 
legislation of a Jewish State. To promulgate a purely secular day of 
observance is in and of itself creating the greatest possible void of 
Hashem's presence in the collective psyche and rhythm of the State and its 
society. That is, indeed, the CH of YhS.

Kol Tuv,
YGB
ygb@aishdas.org      http://www.aishdas.org/rygb

let me first commend RYGB for catalyzing this ongoing (though i certainly 
hope its now ended) discussion of matters b’inyonei d’yomoh.  While i 
believe he is wrong on almost every facet of the discussion he has also 
forced me to give a bit of thought to the matter, and even check a few 
m’qoros, that would probably have slipped by me in the run up to purim.  Now 
– back to the battlements.

RYGB: <<To be sure, TE presented a conundrum to Chazal. They were compelled, 
by writ and by logic, to commemorate "Divrei ha'Tzomos v'Za'akosom" (Rambam 
Ta'anios 5:5), but could not, early on, do so on 13 Adar because it was one 
of the happy days of Megilas Ta'anis (Yom Nikanor or Yom Turynus). >>

while this doesn’t yet get to the nub of disagreement between myself and 
RYGB re just what exactly ta’anis esther is, and what it may be precedent 
for, i must point out a possible misreading of the sources l’shittoso.  To 
wit- since he is convinced (along with the majority of m’foroshim to be 
sure) that 13 adar commemorates not ta’anis esther and mordechai but a 
different tzom associated with the yom q’hiloh (either part of t’khinos for 
rachamim or a fast associated with battle day preparations, rashi/tos), all 
of those m’foroshim learn the line “div’rei hatz’tzomos v'za'akosom” as 
specifically not having to do with ANY of the purim events.  Rather the 
phrase is assumed to refer to the ta’anios m’qabboloh that were mentioned in 
sif’rei tanach, and the p’shat then is that – just as b’nei yisroel accepted 
those old special days mentioned in tanach (tisha b’av,... etc) so too did 
they accept the special new simchoh day of purim.  Now, this does indeed 
motzih the p’shat midei simple p’shuto for “div’rei hatz’tzomos” but that is 
the price of trying to avoid identifying 13 adar with a commemoration of 
esther’s fast. And the m’foroshim do, uniformly, bite that bullet.  So 
should/must? RYGB.

RYGB: <<Furthermore, in Mes. Sofrim 17 & 21 it is noted that the three days 
of Esther must be made up (a la the general convention of Peri'as Ta'anios) 
over the course of three days - so the minhag was to do a BH"B after Purim. 
The Rosh, citing Rabbeinu Tam (Megilla 1:1 and 1:8) holds that nevertheless, 
TE on 13 Adar was a takkana kevu'ah of Chazal even prior to bottlo Megillas 
Ta'anis - I would assume a dormant takkanah that generated annual necessity 
to be porei'ah the ta'anis. >>

incorrect. that is not in fact what m’seches sof’rim says. m’seches sof’rim 
knows absolutely nothing of your chidush that we are porei’oh ta’anis and it 
doesn’t talk about “making up” any fasts, those are words that you, not the 
text, have inserted into the flow. it instead gives (2) reasons for being 
qovei’oh the ta’anis post purim well separated from the event-date, but the 
concept of piro’on has nothing to do with it.  I repeat, p’rias ta’anis is a 
concept associated with happenstance – it provides the opportunity to 
mashlim one’s obligation when random circumstances of the moment preclude 
their ordinary discharge in the usual, or originally planned, manner  it is 
simply not appropriate or applicable to try to shoehorn a ta’anis qovu’oh 
that appears on the calendar on the same days dor after dor, into this 
category.  Your chidush that “a dormant taqqonoh that generated annual 
necessity to be porei'ah” is quite novel and i’m afraid a rather contorted 
extrapolation, but it just aint so.  I would be amazed if you could find 
anybody who subscribed to such an interpretation as i continue to be amazed 
that you even argue the point.

RYGB: << Some Rishonim - the Me'iri in Magen Avos23, the Kolbo in 45 and 62 
- hold that TE is a ta'anis shel simcha! It is a portion of pirsum ha'nes, 
hodo'oh and shevach, and is, therefore, of course, directly and essentially 
linked to the event of the date, i.e., the war against our enemies.>>

as part of your purim run up, you might be interested in perusing the 
recently published “Harirei Qedem” where this point (amongst others) is 
reviewed by rybs in the reconstruction of his discussion of ta’anis esther.

RYGB: <<Even the Avudrohom and others who say the Ta'anis is post-Chazalic, 
explicitly link it to the war that was waged on that day - again, the 
event-date link - and pin this link to a Yerushalmi. >>

first of all, i’ve already mentioned that the school of maharm mi’rutenberg 
and the tur concur that the ta’anis is post-talmudic.  Since they are the 
main line of descent of ashkenazi torah and minhog, we may conclude that the 
consensus is indeed for a post talmudic origin for ta’anis esther.  No need 
to phrase it as “even the abudrohom” as though he were the minority here. 
He’s not.

RYGB: <<There's a lot more to add - a bunch of Maharils, and, of course, 
later sources - and anyone can achieve instant erudition as I have here via 
the Bar Ilan CD, but the gist is clear: TE is either a minhag of hoary 
origin, even unto the times of Chazal, which is a pira'on of the impossible 
dates for ta'ani'os of Pesach and Nissan; or an event-date commemorative, 
linked directly to the "Nikhalu v'amod al nafsham" of the 13th of Adar. For 
all the reasons I have enumerated in prior posts and expounded here, it is 
incorrect, plain and simple, to employ TE as a precedent for YhS.>>

TE as a precedent for YhS? i’m afraid you’ve somewhere lost the bubble of 
just what is at issue. And that is your notion that any religious 
commemoration MUST be tied to an event-date. I did NOT bring up TE as a 
precedent for YhS except for the very narrow technical point of your claimed 
absolute requirement of coincidence of commemoration date with event-date. 
what we have shown, by exhibiting: 1) the shittas ha’ravad in 13 adar (that 
div’rei hatz’zomos v’za’aqosom” indeed does refer k’p’shuto to esther’s 
fast, and 2) that the other ta’anis esther – a qovu’oh fast of three days 
following purim – is that we may indeed institute a commemoration date 
separate from the event–date. Do we do this as a matter of practice? – of 
course not – but when one has reasons, it may be – and has been –done.  As 
for YhS itself, the precedent of date-moving seems no longer required as one 
poster laid that to rest by his more detailed explanation of the historical 
circumstances behind it.

RYGB: <<I need to address Dr. Frankel's "new" sevoro, the one in the 
following paragraph:
		...but i also cited en passant, but did not expand upon, the thanksgiving 
precedent. I do so now. It is my own feeling that a day legislated to the 
regular calendar by secular authorities, which demand neither s’lichos, 
tzom, or any other ritualized religious behavior, which does not change the 
diurnal religious rhythms of the halakhic day in the slightest ­ simply has 
no religious resonance at all. Just like thanksgiving (where we do enjoy a 
regularly scheduled turkey meal). However, i also recognize the existence of 
other halakhic opinions (which i do not share - following rybs) by g’dolim 
v’noro’im (and, i’m recently given to understand, also atzumim) e.g. r 
moshe, r. hutner, that do find halakhic vectors to thanksgiving and either 
proscribe or circumscribe its regular celebration. So, as far as i’m 
concerned, it is entirely appropriate for the knesset to pick a day of their 
choosing to commemorate the holocaust and for frum participation­ even under 
the assumption that there is no date-connection to the events, though of 
course we have now been informed that there is. ...Those wishing to meld 
other remembrances within a religious framework might well be advised to 
turn to tisha b’av ­ or one may revisit the halakhic disputes surrounding 
the establishment of a calendrical day, yom ha’atzmaut, which does affect 
the religious ritual...
<<Thanksgiving, it may be argued, in no way tampers with the calendar. Last 
Thursdays in November are not the same thing like perennial 27 Nissans. But 
in this point, guffa, ozen shoma'as discerns the Chillul Hashem. The U.S. 
"enjoys" separation of Church and State, and Thanksgiving is a purely 
"secular" holiday. Israel possesses a State Religion, and we TIDE adherents 
believe that the rules of Judaism cannot be a thing apart from the 
legislation of a Jewish State. To promulgate a purely secular day of 
observance is in and of itself creating the greatest possible void of 
Hashem's presence in the collective psyche and rhythm of the State and its 
society. That is, indeed, the CH of YhS.>>

this is odd. I note two separate arguments made here. The first that last 
Thursdays in november are not qo’vuoh in the same sense of the same date – 
27 nisson.   This is odd because the pos’qim who have problems with the 
celebration of thanksgiving precisely because it (perhaps) adds a day to the 
ritual calendar, could have easily avoided that difficulty by glomming on to 
this chidush.  But they did not do so, indicating that they saw this chiluq 
of RYGB as a distinction without a difference. (on the other hand, i 
actually like it.  you see its not true that i reject all of RYGB’s 
chidushim. I just think we ought clearly distinguish when we’re hearing 
creativity and when we’re citing precedent in m’qoros).  RYGB’s second 
argument distinguishing Thanksgiving from YhS seems to be his conflation of 
knesset actions with religious legislation, though the parameters of this 
identity are a bit vague. (does he believe the existence of a State Religion 
– itself a secular legislation – somehow confer a religious dimension to its 
parliament.  Or does the fact that these are (mostly) jews running the 
country in eretz yisroel confer a kind of malchus yisroel status.  These are 
all defensible positions, but RYGB’s formlulation “...rules of Judaism 
cannot be a thing apart from the legislation...” are imprecise so i do not 
know just what he is claiming here).

In any event, even were we to grant some kind of synhedronic or malchus 
yisroel status to the knesset, does that mean that ALL their actions are in 
some sense religious.  Can they not execute any secular functions? (really, 
i’m asking l’shittaskhem).   Consider for example the legislation of some 
other kind of day.  Is there an israeli equivalent of Mother’s Day”, or 
“latino-American History Week” , or even Veteran’s Day” or any of the myriad 
special days legislated by the american congress?  If there is (perhaps 
there isn’t, i really don’t know how you do things over there), why should  
that be different in principle than legislating a secular YhS which calls 
for no change to the daily religious ritual? (though of course missing the 
awesome emotional resonance).

Mechy Frankel                       W: (703) 588-7424
michaeljfrankel@hotmail.com         H: (301) 593-3949
michael.frankel@osd.mil

*********************


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