Avodah Mailing List

Volume 24: Number 51

Tue, 13 Nov 2007

• 1. Derech Eretz Kadmah L'Torah (Moshe Y. Gluck)
• 2. Re: Vayeitze "Watch Whom You Marry" (Zev Sero)
• 3. Re: Vayeitze "Watch Whom You Marry" (T613K@aol.com)
• 4. Re: Vayeitze "Watch Whom You Marry" (kennethgmiller@juno.com)
• 5. Re: Just what ARE the rules of p'sak anyway? (Yitzhak Grossman)
• 6. Re: lifnei iver/kanaus (Yitzhak Grossman)
• 7. Re: Vayeitze "Watch Whom You Marry" (Zev Sero)
• 8. skeptics (Saul.Z.Newman@kp.org)
• 9. Re: skeptics (Micha Berger)
• 10. Re: Just what ARE the rules of p'sak anyway? (Chana Luntz)

Brought over from Areivim:
MYG:
> Tana D'bei Eliyahu Rabbah (1:1): Melamed Shederech Eretz Kadmah L'eitz
> HaChayim, V'ein Eitz HaChayim Ela Torah... (Courtesy of Michlol
> Hamamarim
> V'hapigomim, which lists this (as well as R' SBA's Vayikra Rabbah) as
> the
> source for Derech Eretz Kadmah L'Torah.)
> >>
R' SBA:
> I presume that you are agreeing with me that there is no such a Chazal
> ("Derech Eretz Kodmo LaTorah"). In any case DE refers to earning a
> living
> and not 'manners'.
> 
> It seems to me that someone took the above Midrash and used is as a
> 'melitzeh'
> to give mussar about 'mentchlich behaviour' - and it was repeated that
> often
> that it became an accepted 'maamar Chazal'.

I'm not agreeing with you. Although the words aren't there as precisely as
they are quoted, it is close enough. And as far as the translation of Derech
Eretz is concerned, Mishpat U'Tzedakah (from R' Yaakov Meir Fischer)
translates it as manners. Rimzei Eish translates it as Inyan Zivug, and
interprets it Kabbalisticaly. Tosfos Ben yechiel interprets it as the Derech
to Eretz Yisroel, and Al Pi Peshuto, like you said, earning a living. Tuvei
Chaim translates it as good manners (Middos Tovos). Me'orei Eish says
working for a living. Maaneh Eliyahu says good manners. Ramasayim Tzofim
says it is the Olam Ha'asiyah. The Yiddish translation (Vilna, 1880)
translates it as good Middos.

KT,
MYG

Richard Wolpoe wrote:

> Question: How did HKBH let Y'aaov Avinu have relations with Le'ah that 
> night when his Kesubbah said Rachel - which meant his bi'ah was assur.   

1. It's an explicit Tosfos that this applies only to food, not to
other issurim.

2. Who says there was a written kesuba?  The Avos kept all the mitzvos,
including d'rabbanans like Eruv Tavshilin, so presumably there was a
kesuba, but Chazal seem to speak of written kesubos as a custom local
to some places and not to others.  And if there was a written kesuba,
who says it had to have the wife's name?  After all, the wife has the
document, and if ch"v she has to collect on it she can just produce it
and everyone knows who she is and who her husband was.

-- 
Zev Sero               Something has gone seriously awry with this Court's
zev@sero.name          interpretation of the Constitution.
                       	                          - Clarence Thomas

 
 
From: "Richard Wolpoe" <rabbirichwolpoe@gmail.com>
We have a  Principle that HKBH does not let a Tzaddik get hurt inadvedantly
in an  aveirah.....
 
 Question: How did HKBH let Y'aaov Avinu have relations with Le'ah  that night
when his Kesubbah said Rachel - which meant his bi'ah was  assur.<<


 
>>>>>
Did they have kesubos back then?  Is a kesuba a de'oraisa or a  rabbinacal 
requirement?
 
And further to your question -- how did HKBH let Yakov marry Rochel, once  he 
was already married to Leah, since he would now be married to two  sisters?




--Toby  Katz



************************************** See what's new at http://www.aol.com
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.aishdas.org/private.cgi/avodah-aishdas.org/attachments/20071112/a08eb6c6/attachment-0001.html 

R' Richard Wolpoe asked:
> How did HKBH let Y'aaov Avinu have relations with Le'ah that
> night when his Kesubbah said Rachel - which meant his bi'ah
> was assur.

I figure it's a kal vachomer from the heter to marry two sisters: If violating that d'Oraisa was necessary, then violating this d'Rabanan is a slam dunk. But I'll admit that sounds too glib, and I hope someone can come up with something better.

Here's my (somewhat related) question on this parsha: Why did Rachel have to relate to subterfuge to accomplish all this? Why couldn't she go to Yaakov and say, "Listen, we have a problem. I can't marry you while Leah is still single." The only answer I can come up with is that she feared Yaakov would have cancelled the whole thing. Anyone else?

Akiva Miller

On Sun, 11 Nov 2007 23:19:36 -0000
"Chana Luntz" <chana@kolsassoon.org.uk> wrote:

> > > RYG writes:
> > > 
> > > > --- Begin Quote ---
> > > > 
> > > > [Quoting the T'rumas Ha'deshen:] But in the [aftermath of
> > > > the] decree of Austreich they [women who had been captured by 
> > > > gentiles - see the previous section of the DM] were 
> > > > permitted, on the authority of Gedolim, to their husbands 
> > > > too, even to Kohanim ...
> > > > 
> > > > [The DM himself:] And it seems to me that perhaps the Gedolim
> > > > who permitted did not do so Mi'dina but for a Zorech Sha'ah, 
> > > > for they saw that we must be concerned for future women, that 
> > > > if they were to know that they would be unable to return to 
> > > > the husbands of their youth, they might sin, and so they 
> > were lenient.
> > > > 
> > > > And do not say, can we be lenient with regard to an Issur
> > > > De'oraisa? It seems to me that they relied on that which it 
> > > > is stated "kol d'me'kadesh a'da'ata d'rabbanan m'kadesh" and 
> > > > Beis Din has the authority to nullify their Kiddushin and 
> > > > they are therefore as single women and even if they have 
> > > > strayed they are permitted to their husbands, so it appears to me.
> > > > 
> > > > --- End Quote ---
> > > > 
> 
> ...
> 
> > You seem to be referring to the celebrated opinion of Rabbeinu Tam.

[snipped my sources about whether RT would permit the woman to her
husband (many, perhaps most say that he would not) and whether the
Halachah is in accordance with him in any event (apparently, it is
not).]

> This seems all very odd to me, because the reference to the view of
> Rabbanu Tam as brought in Tosphos in Kesuvos 3b, and again in tosphos
> Sanhedrin 74b, is brought as an explanation as to why a woman is not
> (and in the case of Sanhedrin particularly, why Esther HaMalka was not -
> to tie in two threads) required give herself over to death (given that
> adultery is one of the big three that is yarog v'al yavor).  And clearly
> the subtext of that discussion is that Esther was not thereby making
> herself forbidden to Mordechai.  And that is precisely the Rivam's

I don't see as clearly as you do that that is indeed the subtext of the
discussion.

> criticism of Rabbanu Tam in both places that in such a case the biah of
> an oved cochavim should not assur her to the baal (for which he quotes
> Kesuvos 26b) and specifically vis a vis Esther what was the kasher
> avaditi - ie if this was the reason it was OK for Esther, why did it
> make a difference if she actively went to the king or not.  I agree that
> it then goes on to say that on this basis Rabbanu Tam permitted a woman
> to her gentile captor who later converted, but that is not the thrust of
> the discussion in either place.

Whenever a Talmudist cites a law as a proof of his position, we always
have two possibilities; either the dissenter differentiates between the
proof case and the disputed one, or he counters "arvach arva zarich"
and refutes any arguments for the assumption of his opponent.  [I
don't mean to be condescending, merely pedantic :).] You assume the
latter is the case here; many of the sources I cited apparently assume
the former.

> Is it possible (and I don't know the DM's position on this) that he held
> like the Mishna and gemora on Kesubos 26b, which seems to imply that a
> married woman in general even if not the wife of a cohen becomes
> forbidden to her husband on captivity  on being violated and not like
> the gemora on 51b which seems to hold that a captured woman who is not
> the wife of a cohen is permitted to her husband, even if she is seen
> doing things to help the bandits like hand them arrows, on the ground
> that she is doing this because she is afraid of her life, in which case
> it is considered like anus and hence she is permitted to her husband?

I am not that familiar with this Sugya, but as far as I can see,
everyone accepts the Mishnah on 26b, but there's a disagreement between
the Rishonim whether to accept the implication that you mention, that
even an eishes yisrael becomes forbidden to her husband; Maran rules
like the Rambam that she doesn't, while the Mapah cites (as a Yesh
Omrim) the opinion of Tosfos, Rosh and Ran that she does [0].  As to
how to reconcile the latter position with other Halachos that state
that we aren't hoshesh for consensual relations with the captors, see
Beis Shmuel [1] and the sources he cites.

> Because this situation as you describe it above in the time of the
> Trumos Hadeshen seems rather odd vis a vis the women married to
> Yisraelim - because prima facie as you describe it it would seem to fall
> fair and square within the gemora on Kesubos 51b - so, unless the DM did
> not hold like the gemora on Kesubos 51b (as it would seem the Rivam
> might not have, given his citation of 26b), then there must have been
> some other factors which took the case out of the gemora on Kesubos 51b
> - unless of course the key question was the wives of the Cohanim, which
> prima facie would be forbidden on the basis of the gemora on Kesubos
> 51b, but then it is hard to see how afkinu helps any better.

The TH [2] is indeed ruling within the context of the Gemara on 26b,
according to the opinion of Tosfos et. al., cited above.  [He claims to
know of no 'Gaon' other than the Rambam who disagrees, and considers it
impossible to rely on him against what he considers the consensus
view.]

> > H)  I am unfamiliar with the responsa literature on the 
> > subject, and I haven't seen the S'ridei Aish; where is it?
> 
> Sorry, this is a reference to a letter of the Sridei Aish (which I do
> not have a copy of, but read one time or other) in which he discusses
> difficulties he has with various aspects of Yiddishkeit, and
> particularly the phraseology and the way non Jews appear to be dealt
> with.  I am sure R Marc Shapiro would  be able to direct you to a
> source.  However it is not a halachic reference.

We have, then, independent of the question of whether RT would
actually permit the woman to her husband, no Halachic source that
RT's view is accepted at all by the Poskim, and the SA implies that we
do not accept it, as per my previous mail.

> BTW, I am not sure if this is necessarily related, but there is a modern
> day scenario that may also be sourced in Rabbanu Tam's position.  That
> is, mother marries Orthodox, then divorces civilly and never receives a
> get.  She them marries civilly a non Jew and has a child by that second
> marriage.  Is the child a mamzer?  Now this was a kind of halacha
> l'ma'ase situation for my husband in his single days, as there was a
> girl loosely in his social circle at university who was precisely in
> this situation.  And he was told that technically she was not a mamzeret
> and technically he could go out with her and marry her (I don't think
> they were compatable for a whole host of other reasons, but that is
> another story).  But she did subsequently get married, and while I think
> she found it difficult to find somebody in the UK who would marry her,
> she did in the US, and I believe had an Orthodox wedding.  Now how else
> do you explain this if not by way of Rabbanu Tam?   Or am I jumping to
> conclusions here and can you derive it directly?

I can, indeed :); the SA rules [3] that the offspring of a non-Jewish
man and a Jewish woman, even a married one, is not a Mamzer.  RT's
opinion is only needed to permit the mother to stay married to her
erstwhile paramour after his conversion; the children, even those that
were products of adultery, are not Mamzerim in any event.

> > Yitzhak
> 
> Regards
> 
> Chana

[0] SA EH 7:11
[1] ibid. 22
[2] I 92
[3] EH 4:19

Yitzhak
--
Bein Din Ledin - bdl.freehostia.com
An advanced discussion of Hoshen Mishpat

On Fri, 9 Nov 2007 13:42:03 -0500 I wrote:

> On Thu, 8 Nov 2007 21:28:51 -0500
> "Michael Kopinsky" <mkopinsky@gmail.com> wrote:

> > I'm WAAAAY behind on Avodah, but....
> > 
> > The Gemara at the end of Eizehu Neshech (BM 75b) says:
> > 
> > "Amar Rav yehuda amar Rav: Kol mi sheyesh lo ma'os umalveh osan shelo b'edim
> > oveir mishum v'lifnei iver lo sitein michsol, v'reish lakish omer gorem
> > klalah l'atzmo."  In this case, the gemara also refers to it as lifnei iver,
> > even though there is clearly no transgression taking place except in the
> > unlikely circumstance that the loveh is kofeir.  This is most definitely not
> > an issur of lifnei iveir.  It is at most a gezeirah/takanah.  (I have a
> 
> I disagree; many Aharonim seem to consider it bona fide lifnei iver.
> I'm actually in the middle of a mult-part series about this Gemara on
> my blog.  The first part is here [0], subsequent parts shall follow,
> bg"h.

The second part is now available here:
http://bdl.freehostia.com/2007/11/12/lead-us-not-into-temptation-ii/

> > comment penciled in the margin of my gemara directing me to Ritva Megilla
> > 28a where he says that this is not an issur, but a middas chassidus.)  The
> > same should apply to the gemara in MK 17a which uses a similar lashon.

In the aforementioned blog post I cite Aharonim who do indeed suggest
this, although it is not a very plausible reading of the SA, as one of
them points out himself.

> > KT,
> > Michael
> 
> [0] http://bdl.freehostia.com/2007/10/26/lead-us-not-into-temptation/
> 
> Yitzhak

Yitzhak
--
Bein Din Ledin - bdl.freehostia.com
An advanced discussion of Hoshen Mishpat

T613K@aol.com wrote:

> And further to your question -- how did HKBH let Yakov marry Rochel, 
> once he was already married to Leah, since he would now be married to 
> two sisters?

Keeping all the mitzvos was a hiddur.  Keeping ones word was a chiyuv.
Since he'd promised to marry Rachel he had no right to break that
promise just because he wanted to be a chassid and keep mitzvos that
hadn't yet been given.

-- 
Zev Sero               Something has gone seriously awry with this Court's
zev@sero.name          interpretation of the Constitution.
                       	                          - Clarence Thomas

does everyone agree with the claims of this skeptic blogger [ i can supply 
the source], that
: 'proving' the tenets of Orthodoxy is essentially not doable ie the
: 'proofs' don't hold up when put to the EXPERT's eye?  [excerpt]
: Some Frum Skeptics however, are still struggling to make sense out of
: life
: and religion.they still hope to meet the Rabbi in Shining Beckishe,
: who
: can prove to them once and for all that Orthodox Judaism is the one
: true
: religion. Of course this is never going to happen, and the more they
: search for this the worse the pain gets.
: I see this playing out all the time. I pinned my hopes on Rabbi Joshua
: Maroof, who, coming from the Chaitian sect, firmly believes that
: Judaism
: is 100% provable (at least to any reasonable non biased person). But
: the
: more I debated with RJM, and the more I found him unconvincing (to me
: personally)
:
:  Someone had convinced x that the answer to Life, the Universe and
: Orthodox Judaism was contained in Reb Elchonon Wasserman's kovetz
: maamarim. x got all excited, but then his hopes were dashed as he saw
: what
: a load of nonsense it all was, at least from an evidentialist
: perspective.
: 
:
: The problem with this, of course, is that the proofs for Orthodoxy
: don't
: exist, at least not from an evidentialist perspective. From a
: rational,
: objective, perspective these proofs do not convince anyone not already
: convinced. Even more importantly, the people promoting the proofs
: wouldn't
: themselves find the proofs convincing, were it not for the powerful,
: personal subjective feelings that they already have that Orthodoxy is
: true.
:
: Occasionally, the proofs do make an impact on someone, but this is
: usually
: due to shock value. In the same way that reading 'Who wrote the Bible'
: can
: be so shocking that a frum person can turn skeptic overnite, likewise
: having an uninformed skeptic sudddenly be exposed to a full range of
: Aish
: style proofs can equally provide a shock in the opposite direction.
: Apparently Anthiny Flew, famous lifelong atheist, had such an
: experience
: when exposed to Gerald Schroeder's theories of Breishis.


NOTICE TO RECIPIENT:  If you are not the intended recipient of this 
e-mail, you are prohibited from sharing, copying, or otherwise using or 
disclosing its contents.  If you have received this e-mail in error, 
please notify the sender immediately by reply e-mail and permanently 
delete this e-mail and any attachments without reading, forwarding or 
saving them.  Thank you.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.aishdas.org/private.cgi/avodah-aishdas.org/attachments/20071113/72b22555/attachment.htm 

Three questions:
1- CAN Judaism be proven
2- IS one's religious stance usually the product of proof
3- Should it be

CAN:
I have a number of blog entries in which I argue (following the Kuzari
over the Moreh) that the only real proof religion can have is the
direct experience of living according to it
<http://www.aishdas.org/asp/category/faith-and-proof>. Philosophical
argument is never sounder than the combined weaknesses of all its
postulates, which ultimately means is the product of numerous
experiences. Anything as complex as religion will therefore be more a
product of the person's willingness to accept the proof than the proof
itself. It simply can't be objectively judged.

Kuzari 1:13 (tr Hirschfeld, 1905):
"The Rabbi: That which thou dost express is religion based on
speculation and system, the research of thought, but open to many
doubts. Now ask the philosophers, and thou wilt find that they do not
agree on one action or one principle, since some doctrines can be
established by arguments, which are only partially satisfactory, and
still much less capable of being proved."

DOES:
I do not believe religion actually lemaaseh gets founded on
philosophical argument. How many people become frum because of a great
lecture? How many do so because of the experience of Shabbos?

SHOULD:
R' Dr Sholom Carmy once wrote on Avodah:
> The people who keep insisting that it's necessary to prove things
> about G-d, including His existence, seem to take it for granted that
> devising these proofs is identical with knowing G-d.
> Now if I know a human being personally the last thing I?d do, except
> as a purely intellectual exercise, is prove his or her existence.

IOW: No, no, and no. Philosophy has a role (a big role, for some of
us) adding detail and richness to belief. But not in establishing it.

Qobetz Shiurim, for example, is an explanation for maaminim. It
doesn't include proofs for the skeptic. The book is useless to the
skeptic; except as an example of the beauty he could experience in
limud haTorah. (But frankly some nice Brisker lomdus might do better.)

What I believe does happen and does motivate change is experiencing
the shock of seeing something argued that until then you thought was
unarguable. Not the intellectual exercise directly, but the experience
of going through the exercise and the resulting emotional shock.

I think this is why R Jonathan Rosenblum found someone whose data
seems to be justifying the following claim (taken from
<http://www.cross-currents.com/archives/2007/10/24/its-not-what-the-neighbours-say/>):
> One of those phenomena would be disaffected youth. How widespread is
> the problem? What are its causes? Is it possible to identify youth
> who might be at risk in coming years at a young age, and what types
> of early intervention might be effective?...
> This past week I finally found someone who has been studying all
> these issues and collecting hard data in order to create effective
> early intervention programs. In the course of our long conversation,
> he observed that the "drop-out" rates in so-called mixed communities,
> like Petach Tikva, Rechovot, and Haifa, are dramatically lower than
> in all chareidi communities, like Kiryat Sefer, Beitar, Elad, and
> Bnei Brak.

A risk of being isolated is the shock of news of the outside world
when it eventually does come in. Someone for whom "Who Wrote the
Bible" wasn't the first they heard of Document Hypothesis wouldn't be
too impressed with the book. Someone for whom it raises new questions
and proceeds to answer them... r"l. It's not the quality of the issue,
it's being broadsided that shapes the response. (It might also be
irritation at feeling "protected" rather than treated as an adult...
Depends on the individual poseiach beshe'eilah.)

SheTir'u baTov!
-micha

-- 
Micha Berger             One who kills his inclination is as though he
micha@aishdas.org        brought an offering. But to bring an offering,
http://www.aishdas.org   you must know where to slaughter and what
Fax: (270) 514-1507      parts to offer.        - R' Simcha Zissel Ziv

Iwrote:

> > This seems all very odd to me, because the reference to the view of 
> > Rabbanu Tam as brought in Tosphos in Kesuvos 3b, and again in
tosphos 
> > Sanhedrin 74b, is brought as an explanation as to why a woman is not

> > (and in the case of Sanhedrin particularly, why Esther HaMalka was
not 
> > - to tie in two threads) required give herself over to death (given 
> > that adultery is one of the big three that is yarog v'al yavor).
And 
> > clearly the subtext of that discussion is that Esther was not
thereby 
> > making herself forbidden to Mordechai.  And that is precisely the 
> > Rivam's
> 
> I don't see as clearly as you do that that is indeed the 
> subtext of the discussion.

The gemora in Sanhedrin 74b is discussing the fact that one must give up
their life rather than violate any halacha at all, even changing his
shoelaces, if that act is in public.  And it asks on this "v'ha Esther
farhesia havei?".  Now on "V'ha Esther farhesia havei" tosphos says
teima d'hava lei l'akushei arios havei - ie that she was engaged in
arayos and everybody agrees that on murder and arayos it is yarog v'al
yavor and similiarly one can question on Kesubos 3b where it says that
[the problem is that] there are modest women who will allow themselves
to be killed and the gemora there answers and derives that anus is
different - but what is the question there it is good what they do to
allow themselves to be killed mishu gilui arayos *vterutz Rabanu Tam
d'ain chayvin l'misa al bilas oved cochavim mishum d'rachmana afkerai
l'zarea d'oved cochavim k'damrinan [Yevamos 86a] v'zaramas sussim
zaramasam, umitoch kach haya rotze Rabbanu Tam l'hetir bas yisroel
[brings case of non Jew who had relations with her then came to
megayer].. "d'lo shayach lmemar echad l'boel l'oved cochavim dehavei
k'bias behema"

Similarly in the Tosphos in Kesuvos on 3b "uledrosh l'hu d'ones sharei"
- and if you say but behold is says in perek ben sore umore (sanhedrin
74a) on all averos yavor v'al yarog chutz m'ovdas cochavim  v'gilui
arayos  v'shifchas damim *v'terutz Rabbanu Tam d'ain chayavim misa al
bias mitzri etc etc (pretty much the same language as above, and then
bringing the case of Esther -  v'lo parich v'ha esther galui arayos
havei mashma mishum arayos lo haya mischayava  umitoch kach hitir
rabbanu Tam etc... D'lo shayich l'mamar echad l'baal v'echad l'boel
b'bias mitzri d'havei kibias behama ... "

And note that the Rosh's version of the Tosphos has in the words  "v'lo
mikarei biah"

So I don't understand how you are reading these tosphosim and saying
this is not the subtext of the discussion.  Tosphos is bringing a
question - why is it not required for a married woman to give up her
life rather than be violated and states that Rabbanu Tam answers this
question by saying that the  biah of an oved cochavim is like the biah
of a behama and therefore there is no such requirement.  How do you read
the words "v'terutz Rabbanu Tam"?  It then goes on to say "mitoch kach"
- ie because of this explanation Rabbanu Tam - either was prepared to or
did permit a ger who had previously had relations with a married women
to marry her, but, at least as Tosphos understands Rabbanu Tam, the
explanation is an explanation of the actions of Esther, who after all
was understood to be a married woman (who went back and forth to
Mordechai) and then mitoch kach.

Now that is not to say there are not other explanations for why what
Esther did and what the tznios do is OK (other Rishonim bring them), and
the same is true for the heter for the goy who was megayer (the Rosh
says explicitly that he approves the heter but not for the reason of
Rabbanu Tam) but it seems pretty straightforward to me from the language
of the text that Tosphos understands Rabbanu Tam's explanation as I have
articulated it.

Now you can say, as other commentators have said, that Rabbanu Tam would
have other reasons to prohibit the wife going back to the baal, and
hence the heter only applies to the boel.  The counterargument to that
is if that were the case, then a) Esther would be prohibited to
Mordechai, and b) the tznius women would have a point.  It can then be
argued that Rabbanu Tam accepts both that it has to be anus for the
woman to allow her go back to the husband, as well as this reasoning
which only applies to the boel - which I think is the point of various
of the commentators.  However, the Tosphos does not read like that -
because the tosphos is specifically commenting on the situation of the
tznios and of Esther.  There is absolutely no need to bring Rabbanu
Tam's terutz here regarding sussim otherwise, it is completley
superfluous.   Now it is also possible that whoever put together the
tosphos misunderstood Rabbanu Tam, but taking the Tosphos as written, I
struggle to see how such an interpretation is tenable.

> > criticism of Rabbanu Tam in both places that in such a case the biah

> > of an oved cochavim should not assur her to the baal (for which he 
> > quotes Kesuvos 26b) and specifically vis a vis Esther what was the 
> > kasher avaditi - ie if this was the reason it was OK for Esther, why

> > did it make a difference if she actively went to the king or not.  I

> > agree that it then goes on to say that on this basis Rabbanu Tam 
> > permitted a woman to her gentile captor who later  converted, but
that 
> > is not the thrust of the discussion in either place.
> 
> Whenever a Talmudist cites a law as a proof of his position, 
> we always have two possibilities; either the dissenter 
> differentiates between the proof case and the disputed one, 
> or he counters "arvach arva zarich" and refutes any arguments 
> for the assumption of his opponent.  [I don't mean to be 
> condescending, merely pedantic :).] You assume the latter is 
> the case here; many of the sources I cited apparently assume 
> the former.

But continue to read the Tosphos inside - "v'ain nire l'Rivam d'ha al
yadei bias oved cochavim nesra l'baala kdamar ...  - ie this terutz of
the Rabbanu Tam does not seem correct to the Rivam, because it says in
various sources (and he brings proof texts both from Kesuvos 3a and
26b)that the biah of an oved cochavim makes a woman assur to her husband
... Now how could the Rivam object to Rabbanu Tam on this basis if he
did not understand Rabbanu Tam as saying that the biah of an oved
cochavim did not make her husband assur.  I agree that there are these
two possibilities in general when a Talmudist cites a law as proof of
his position, but as you can see from the language of the Tosphos,
Tosphos did not  bring Rabbanu Tam's ruling and then cite the law as a
proof, they brought the law and then as a by the by, brought the halacha
l'ma'ase that Rabbanu Tam derived from the law.  And the whole context
of the Rivam's rebuttal is about the law and the application to Esther.

I do agree that vis a vis the heter for the boel, since there are other
reasons, such as the Rosh's, to allow the boel even disregarding Rabbanu
Tam's reason, if all we had was Rabbanu Tam's heter, we could
distinguish between the proof case and the case of the husband, but that
is why I keep going back to the language of the Tosphos, and not the
discussion on whether a goy boel can marry her on conversion in the
Shulchan Aruch.

> > Is it possible (and I don't know the DM's position on this) that he 
> > held like the Mishna and gemora on Kesubos 26b, which seems  to
imply 
> > that a married woman in general even if not the wife of a cohen 
>> becomes forbidden to her husband on captivity  on being violated and 
> > not like the gemora on 51b which seems to hold that a  captured
woman 
> > who is not the wife of a cohen is permitted to her husband, even if 
> > she is seen doing things to help the bandits like hand them arrows,
on 
> > the ground that she is doing this because she is afraid of  her
life, 
> > in which case it is considered like anus and hence she is permitted
to 
> > her husband?
> 
> I am not that familiar with this Sugya, but as far as I can 
> see, everyone accepts the Mishnah on 26b, 

Sorry, I was not expressing myself precisely here - what I was saying
was does he hold like what seems to be the pshat in the text of that
Mishna, that it applies to both the wife of a Cohen and the wife of a
Yisroel (as opposed to the other positions, that read into this Mishna
the wife of a Cohen only)?

but there's a 
> disagreement between the Rishonim whether to accept the 
> implication that you mention, that even an eishes yisrael 
> becomes forbidden to her husband; Maran rules like the Rambam 
> that she doesn't, while the Mapah cites (as a Yesh
> Omrim) the opinion of Tosfos, Rosh and Ran that she does [0]. 
>  As to how to reconcile the latter position with other 
> Halachos that state that we aren't hoshesh for consensual 
> relations with the captors, see Beis Shmuel [1] and the 
> sources he cites.
> 
> > Because this situation as you describe it above in the time of the 
> > Trumos Hadeshen seems rather odd vis a vis the women married to 
> > Yisraelim - because prima facie as you describe it it would seem to 
> > fall fair and square within the gemora on Kesubos 51b - so,  unless
the 
> > DM did not hold like the gemora on Kesubos 51b (as it would  seem
the 
> > Rivam might not have, given his citation of 26b), then there must
have 
> > been some other factors which took the case out of the gemora on 
>> Kesubos 51b - unless of course the key question was the wives of the 
> >Cohanim, which
> > prima facie would be forbidden on the basis of the gemora on Kesubos
> > 51b, but then it is hard to see how afkinu helps any better.
> 
> The TH [2] is indeed ruling within the context of the Gemara 
> on 26b, according to the opinion of Tosfos et. al., cited 
> above.  [He claims to know of no 'Gaon' other than the Rambam 
> who disagrees, and considers it impossible to rely on him 
> against what he considers the consensus view.]

OK so basically what you are saying is that if the TH had held like the
Rambam and the Shulchan Aruch, at least the wives of the Yisroelim would
not have been assur in the first place, but because he held the other
side of that machlokus, suddenly you need to introduce afkinu.  If
however he had taken the position b'shas hadchak we rely on the Rambam,
despite it not being the consensus, then there is no need to introduce
afkinu.  Does the TH ever mention afkinu, or is that just the DM's
understanding of it?

> We have, then, independent of the question of whether RT 
> would actually permit the woman to her husband, no Halachic 
> source that RT's view is accepted at all by the Poskim, and 
> the SA implies that we do not accept it, as per my previous mail.

Agreed.  The point is that here were are clearly scurrying around
looking for minority opinions to rely on.  And afkinu seems much more
monority than Rabbanu Tam.  To posit afkinu in this kind of case,
without any kind of citation at the time seems very odd - particularly
as it seems completely out of character for afkinu.  In the cases of
afkinu in the gemora, the point is that the husband did something wrong
as the gemora states in Yevamos 110a, he acted  shelo k'hogen- eg
married improperly or sent a get improperly  and therefore, as the
gemora states, asu bo shelo k'hogen, they the rabbis acted shelo k'hogen
by uprooting the kiddushin.  But here, what did the poor husbands' do?
They married intending a marriage and then found their marriages torn
apart by gentile capture. And further, afkinu works, as is made clear in
Yevamos 110a, by, if he made kiddushin by way of kesef, by the use of
hefker beis din hefker, ie they take away his property retrospectively
so he was never able to effectuate kiddushin, and in the case of
kiddushin by way of biah, by deeming his biah a bias znus.  Now these
poor husbands, not only have they lost their wives to gentile capture,
but you are deeming the rabbis to have deprived them of their property
rights and/or deemed their biah biat znus?  Now if you want to argue
mekach taus, then maybe they thought they were getting a marriage, but
if they had known their wives were going to be captured they would never
have married (somewhat similar to Rav Moshe in the last Teshuva in
Iggeros Moshe Even HaEzer vol 4 ie if the wife had known the husband was
going to die when called up for his army service in a few days time, and
she would fall for yibum to a mumar who refused to do chalitza out of
political conviction, and so he not get thrown out of his political
party, she would never have gone ahead with the marriage, so it is a
mekach taus).  Nor does afkinu help the Cohanim.  Whereas the Rabbanu
Tam is a rishon, and the fact that the SA does not accept his position
is not so relevant to the time of the Trumas Hadeshen.  What is more the
SA does accept that the wives of Yisroelim should have been able to go
back to their husband's m'dina, and the Trumos HaDeshen rejects that, so
why is it not more likely that he is relying on a position that was at
least in his line of tradition, even though there was some considerable
opposition to it, than on some reference not brought by either him and
based on completely different kinds of cases in the gemora and which
center on punishing the husband.

> I can, indeed :); the SA rules [3] that the offspring of a 
> non-Jewish man and a Jewish woman, even a married one, is not 
> a Mamzer.

Yes but why?  Because kiddushin is not tofes b'hem (see the gemora in
Yevamos 46).  But why is kiddushin not tofes b'hem?  You get a lot of
this from various psukim which are explained to say that the grandson by
way of your daughter is your [grand]son, ie you can ignore the paternity
of the non Jew (but not the maternity).  Arguably this links in to this
idea that their biah does not count, making your grandson fully Jewish.
Don't think it is quite necessary, but seems to be one of the ideas that
could be underlying all this (on a theoretical level - although in
general we follow the mother where there is a pgam, except when it comes
to mamzer - but this is the exception vis a vis mamzer.  I am not sure
by any means this though).  Remember of course that Rabbanu Tam didn't
pull this idea out of thin air.  It is stated explicitly in Yevamos 96a
as the reason why twins whose mother converted after they were
conceived, but before they were born, do not do yibum one for the other,
because of this principle and even though we know that the father is the
same - so there is it specifically a yichus question and accepted by
everybody.  Don't know if it would make any different halacha l'ma'ase
in this regard either.

 
> > > Yitzhak

Regards

Chana


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


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


End of Avodah Digest, Vol 24, Issue 51
**************************************

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

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

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

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