Avodah Mailing List

Volume 31: Number 67

Mon, 15 Apr 2013

• 1. precedent (David Riceman)
• 2. Kohen in a bag on a plane to block Tumah (Marty Bluke)
• 3. Re: kinyan hagbaah (Liron Kopinsky)
• 4. YHA nidche (Eli Turkel)
• 5. Re: YHA nidche (Harry Maryles)
• 6. Re: YHA nidche (David Cohen)
• 7. kinyan hagbaah (Chana Luntz)
• 8. kinyan hagbaah (Meir Rabi)
• 9. kinyan hagbaah (Eli Turkel)
• 10. Re: Kohen in a bag on a plane to block Tumah (Zev Sero)
• 11. Re: kinyan hagbaah (Zev Sero)
• 12. Re: kinyan hagbaah (Chana Luntz)

A couple of weeks ago RMB cited H. Shmitah V'Yovel 10:6 about precedent 
overriding sevara.  But there are limits.  See H. Ishus 11:13 where 
manuscript evidence overrides precedent.  The language of the PhM 
Kesubos 1:3, tr. Kafih, is especially stark: "kol hageonim", whereas in 
MT he just says "yesh geonim".

How does one harmonize these? What are the limits of precedent?

David Riceman

With this issue coming up again with the publication of the picture
of the Kohen in his bag on the plane (
http://4.bp.blogspot.com/-xF1pWneGukU/UWZvRr
Ed8kI/AAAAAAAAF14/X01JD3HtA6k/s640/bag+on+flight.jpg),
a few questions came up:
1. The 787 fuselage is not made of metal but carbon fiber reinforced
plastic which is not mekabel tumah. I would guess that in the future more
planes will be made from this material. Would this mean that there is no
problem flying on this kind of plane?
2. There are Jewish cemeteries all over the place, especially in the US and
in Europe. If you fly from the US to Israel over Europe for example, how
can you possible know if you are flying over a cemetery? Can you simply go
with rov?
3. Does it matter at what altitude the plane is flying at? I know we say
that tumah bokaas v'oleh ad lashamayim but does that include a plane flying
at 35,000 feet? What about someone in orbit?
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On Sunday, April 14, 2013, Zev Sero wrote:

> On 14/04/2013 10:04 AM, Meir Rabi wrote:
>
>> Is it not true that even though my agreement with the supermarket is
>> that things in my trolley are things that I am CONSIDERING buying and
>> I have not yet been Koneh, But placing items in my trolley grants me
>> Kinyan that prevents others from taking those [last items on sale]
>> items from me
>>
>
> No.  You have no baalus on them at all.  People can't take them from you,
> not because they're yours, but because they're physically in your
> possession.
> If someone did take something from your cart do you really imagine you'd
> have
> recourse to a court or a beis din?!
>

However, taking them from another person should still be assur because of
v'ahavta l'reiacha kamocha, no?


-- 
Liron Kopinsky
liron.kopin...@gmail.com
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<<> When is megillah ever moved?  >>

Actually when Purim falls on shabbat (in Jerusalem) it is debateable
whether the friday and sunday are part of the "real" purim or are a type of
"tashlumum"
Similarly if tet be-av falls on shabbat and is nidche to sunday it is a
debate whether the "real"
tisha ba-av is shabbat and ndche to sunday or is the "real: tisha ba'av on
sunday
ie does shabbat have any halacha of tisha ba'av

One interesting application is for sfardim whether there is a shavua
she-chol bo tisha ba'av.
Some hold that the entire week is shuva since tisha ba-av is on shabbat
while others hold
there is no shuva since tisha ba-av is "celebrated" on sunday

-- 
Eli Turkel
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--- On?Sun, 4/14/13, Eli Turkel?<elitur...@gmail.com>?wrote:
R Ariel points out that the British mandate actually ended on the 6th of
Iyar which was a shabbat.Ben Gurion moved up the announcement of
indeoendence to friday afternoon to avoid chillul shabbat.Hence, the "real"
YH should have been the 6th of Iyar and and only observance of shabbat
changed the date. Hence, now when YH is moved because of shabbat it
actually reminds us that shabbat is part of the independence of EY.
Hence, his final psak for this year is to Hallel on tuesday the 6th of Iyar
and not to say Tachanun on both monday and tuesday the 5th and 6th of iyar
(that is what my shul is
doing)----------------------------------------------
Why then did?R' Ahron Soloveichik Paskin that if one says Hallel on YhA -
he should say it on the 5th - the day it was established - regardless of
when the actual celebration takes place?
HM

Want Emes and Emunah in your life? 



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


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R' Micha Berger wrote:
> OTOH, if you really believe that 5 Iyyar is the anniversary of an event worthy
of
> saying Hallel, that argument doesn't really work for a moved date.

When did the Chanukah miracle of the oil lasting for its 8th day occur?  If
it was on 2 Tevet, how can we sometimes say Hallel on 3 Tevet?  If it was
on 3 Tevet, how can we sometimes say Tachanun on that day?

The obvious answer is that it's perfectly reasonable to say that we always
mark the anniversary of that 8th day on the 8th day from 25 Kislev,
regardless of what its exact date in any given year.  My point is that
based on context, there is more than one way to define "this same day last
year" and mark an anniversary.

This is actually a point that I often make in advocating for use of the
Hebrew calendar to people who find it strange to mark the anniversary of an
event on a day that is not exactly at the same place in the solar year as
the event being commemorated.  Many American holidays are observed on days
like the 1st Monday in September or the 4th Thursday in November, and
because the weekly cycle is something that we strongly perceive, it feels
natural to say "I remember what we were doing on this same day last year,"
even if last year it was November 27 and this year it is November 26.
 Similarly, if we were more conscious of the lunar cycle (as people in
ancient times surely were), it would seem very natural to describe an event
as occurring on "the first full moon in the spring," and to feel that the
anniversary of this event is when the first full moon in the spring comes
around again.

Always saying Hallel on 5 Iyar may be a reasonable approach in chu"l (where
either way, it's a regular weekday once you step outside shul), but in
Israel, a 5 Iyar that is Yom haZikaron feels very different from a 5 Iyar
that is Yom haAtzma'ut.  Once the national holiday is being observed on a
given day (and, as R' Micha's father pointed out, it is wonderful that its
date is adjusted in order to prevent chilul Shabbos), it is natural that
this year's Yom ha'Atzma'ut on 6 Iyar will *feel like* "the same day" as
last year's Yom ha'Atzma'ut on 4 Iyar.  Just like last year, people will be
off from work, there will be fireworks, the national parks will be full,
and people will make barbecues.  I think that it is perfectly natural to
say Hallel each year on the day that is *perceived* as the anniversary of
the previous year's Yom haAtzma'ut (and thus of the founding of the State),
rather than decoupling Hallel from the national holiday because of an
assumption that the only legitimate way for us to mark an anniversary is by
exact calendar date.

-- D.C.
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RET writes:

>When one lifts an item in a supermarket to buy it but decides to put it
>back before getting to the cashier - can one really put it back on the
>shelf? Why isn't one halachically buiying it by picking it up even without
paying?

Because it is accepted that dina d'malchusa dina (or even the conventions of
merchants) applies when it comes to kinyanim regarding buying and selling.
And under English common law (which applies in Israel in this context) the
picking up of the item from the supermarket shelves only constitutes an
"offer", which they store owner is free to accept or reject.  The earlier
step, namely the putting of the goods on the shelves only constitutes "an
invitation to treat", the picking up of the item by the shopper and the
taking of it to the till is the "offer", and the "acceptance" takes place at
the till (at which point consideration is passed). Hence there is no
contract in place until then.

>The closest I found was a teshuva of R. Zilberstein that if one leaves
groceries in a supermarket to be delivered and they get stolen before
delivery that the loss is the one who bought them since he made a kinyan
meshichah.

But if one leaves the goods in the store to be delivered that is post the
formation of the contract, so indeed, under English contract law, the goods
are yours, and the supermarket is only a bailee.

> The only question is whether the store owner is a shomer chinam or a
shomer sachar (or perhaps not even a shomer chinam) He paskens that in a
modern >supermarket the supermarket is a shomer sachar.

Now the law of bailment under common law is not hugely different to that
under halacha, although the precise details vary from jurisdiction to
jurisdiction.  And especially in Israel, where there is an assumption that
any lacunae in the law should be filled with the halacha, it is probably
even closer to halacha than other jurisdictions (although I cannot say that
for certain).

But I can also see an argument that while kinyanim might be governed by dina
d'malchusa dina, bailment, being often an involuntary state, should not be,
and rather should be governed by halacha, although it does get messy when
the bailment is for consideration (as here), and hence formed by contract.
Note that here, the same question as the halacha (is the bailment for
consideration = is the shomer a shomer sachar) is being raised.  Like the
halacha, being a bailee for consideration will require a higher standard of
care than if one was a gratuitous bailee (ie a shomer chinam).  Is it likely
that the common law would find differently from the halacha in the shomer
sachar/shomer chinam question? Probably not, or at least the analysis would
seem to be the same.  Do the two standards of care, the one under common
law, the other under halacha, differ?  Possibly a bit, although that would
require detailed analysis (and I have no idea how Israeli common law differs
from English common law).  What happens if they do differ?  If the standards
of the halacha are higher, then would the supermarket owner, assuming he is
a frum Jew, be bound to the higher standard, and could the owner of the
goods could enforce that in beis din? Assuming the general law allowed
disputes to be arbitrated by beis din, then when presented with a situation
where the halacha mandated compensation from the store owner, I would assume
prima facie they would rule in the goods owner's favour, but on the other
hand perhaps the store owner could argue kim li.  What if the common law
standards are higher?  Might it not be argued that due to dina d'malchusa
dina the supermarket owner is in fact also bound to the higher standard?
That would be my analysis, but then we  get into the thorny questions about
the reach of dina d'malchusa dina, the Shach and similar objectors.  Would
the Shach, for example, object to the supermarket owner being held to a
higher standard in this context, even assuming the owner of the goods took
him to beis din (and hence there were no arkos questions)?  Or might the
Shach etc feel that in this case, because it was in the context of buying
and selling, and the delivery was part of the contractual equation, that
there was not a problem with the customs of merchants, as determined by the
state, governing the transaction.

>Nevertheless the assumption is that it belongs to the customer because he
picked it up or pulled and it doesnt matter whether that was before or after
>payment

Did he say so explicitly, or is there just an assumption that by the time
the goods were ready to be delivered they belonged to the purchaser?

-- 
Eli Turkel

Regards

Chana

Whether a claim is actionable in BD is not the standard that determines
partial standards of ownership.

There are legitimate claims that are beyond the [official] jurisdiction of
BD, such as Gerama and Mi ShaPara.

Therefore, when contemplating making a purchase, and when engaging in
haggling with a vendor, right up until the exchange of ownership is
formalised, Kinyan, which is the point of no return, there is a shifting
weight of ownership, a transfer of power of "ownership"
 This suggests that even though my agreement with the supermarket is that
things in my trolley are things that I am CONSIDERING buying and I have not
yet been Koneh, But placing items in my trolley grants me Kinyan that
prevents others from taking those [last items on sale] items from me.

Thus, when someone is MeYaEish his wallet which he left at the public
phone, and running back sees someone about to pick it up and take
possession of it, according to either the Ketzos or the Nesivos, the former
owner can just by seeing the wallet, re-exercise his control and ownership
of his wallet.



Best,

Meir G. Rabi
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<<Because it is accepted that dina d'malchusa dina (or even the conventions
of
merchants) applies when it comes to kinyanim regarding buying and selling.
And under English common law (which applies in Israel in this context) the
picking up of the item from the supermarket shelves only constitutes an
"offer", which they store owner is free to accept or reject. >>

If I understand Chana correctly she is arguing that Dina DeMalchuta
overrides
halacha in making a kinyan. According to this using money to buy a moveable
is a kinyan because of dina demalchuta even though the gemara explictly
states that
it is not a kinyan.

First without a proof I find this hard to believe. Second why the need for
simtuta
why not just use dina demalchusa. Some modern articles struggle to justify
buying
articles on the internet (perhaps using simtuta) why not just use dina
demalchuta?

kol tuv

-- 
Eli Turkel
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On 14/04/2013 10:42 AM, Marty Bluke wrote:

> 1. The 787 fuselage is not made of metal but carbon fiber reinforced
> plastic which is not mekabel tumah. I would guess that in the future
> more planes will be made from this material. Would this mean that
> there is no problem flying on this kind of plane?

I assume so.


> 2. There are Jewish cemeteries all over the place, especially in the
> US and in Europe. If you fly from the US to Israel over Europe for
> example, how can you possible know if you are flying over a cemetery?
> Can you simply go with rov?

Not only rov, but an enormous rov.  How many Jews do you imagine have ever
died in Europe, over the past 2500 years?  Even if their graves were all
scattered at random, they'd only take up a small proportion of its landmass.
And in fact they're not scattered at random; the vast majority are concentrated
in small cemeteries (and in mass graves r"l), which means they take up even
less of its landmass than that.  There's no reason to suppose that any flight
path takes one over a Jewish grave, and we certainly don't know it for a fact,
so there's no reason to worry about it.  That makes it very different from
the Cholon cemetery, and a flight path that is known to go over it.


> 3. Does it matter at what altitude the plane is flying at? I know we
> say that tumah bokaas v'oleh ad lashamayim but does that include a
> plane flying at 35,000 feet? What about someone in orbit?

Of course it doesn't matter.  Ad larakia means ad infinitum.  If a line
drawn between the kohen and the centre of the earth passes through a
Jewish grave, he is tamei.  And if he knows it will happen then he is
commanded to do whatever he can to avoid it.


-- 
Zev Sero               A citizen may not be required to offer a 'good and
z...@sero.name          substantial reason' why he should be permitted to
                        exercise his rights. The right's existence is all
                        the reason he needs.
                            - Judge Benson E. Legg, Woollard v. Sheridan

On 14/04/2013 1:26 PM, Liron Kopinsky wrote:
> On Sunday, April 14, 2013, Zev Sero wrote:
>> On 14/04/2013 10:04 AM, Meir Rabi wrote:
>
>>> Is it not true that even though my agreement with the supermarket is
>>> that things in my trolley are things that I am CONSIDERING buying and
>>> I have not yet been Koneh, But placing items in my trolley grants me
>>> Kinyan that prevents others from taking those [last items on sale]
>>> items from me
>
>
>> No.  You have no baalus on them at all.  People can't take them
>> from you, not because they're yours, but because they're physically
>> in your possession. If someone did take something from your cart do
>> you really imagine you'd have recourse to a court or a beis din?!

> However, taking them from another person should still be assur
> because of v'ahavta l'reiacha kamocha, no?

How is that relevant?


-- 
Zev Sero               A citizen may not be required to offer a 'good and
z...@sero.name          substantial reason' why he should be permitted to
                        exercise his rights. The right's existence is all
                        the reason he needs.
                            - Judge Benson E. Legg, Woollard v. Sheridan

I wrote:

 

<<Because it is accepted that dina d'malchusa dina (or even the conventions of
merchants) applies when it comes to kinyanim regarding buying and selling.
And under English common law (which applies in Israel in this context) the
picking up of the item from the supermarket shelves only constitutes an
"offer", which they store owner is free to accept or reject. >>

 

And RET responded:

 

>If I understand Chana correctly she is arguing that Dina DeMalchuta overrides

>halacha in making a kinyan. According to this using money to buy a moveable

>is a kinyan because of dina demalchuta even though the gemara explictly states that

>it is not a kinyan.

 

>First without a proof I find this hard to believe. Second why the need for simtuta

>why not just use dina demalchusa. 

 

Firstly you can have simtuta without dina d?malchusa dina ? ie merchants
can have conventions regarding sales without the secular law being involved
or interested (certainly historically, in the case of modern states, not so
much).

 

Secondly, simtuta can result from this kind of application of dina
d?malchusa dina.  That is, because the secular law of contract is so,  and
the merchants don?t want to fall foul of the secular law, the merchants in
that place therefore conduct themselves in accordance with that particular
law, hence it becomes a form of simtuta.

 

You can see this from eg the Rema Shulchan Aruch Choshen Mishpat hilchot
Geneva siman 356 si?if 7 ?and in any event he needs to return them to the
owners because of dina d?malchuta dina because thus we are accustomed to
doing now, to return all stolen objects even after yeush and a change of
domain due to dina dimachuta dina?.

 

That is, the custom is driven by the secular law, which then become binding under Jewish law.

 

This is the way the Bet Din of America put it in their ?Layman?s Guide to Dinei Torah (Beth Din Arbitration Proceedings)? at:

 

http://www.bethdin.org/docs/PDF1-Layman%27s_Guide.pdf

 

pp6-7

Do the judges follow American law?

They follow Jewish law, but Jewish law often takes the local law into account. For example, 

Jewish law often considers common business practice, which in the United States is often a 

product of American law. If someone enters into a contract that is binding according to 

American law, then they are generally bound by Jewish law as well, because the business 

community considers such contracts binding. Also, there is a principle in Jewish law called 

?dina d?malchusa dina,? literally, ?the law of the government is the law.? The exact 7

parameters are somewhat complex, but this means that Jewish law recognizes many secular 

laws. Bankruptcy laws are often a good example.

 

>Some modern articles struggle to justify buying articles on the internet (perhaps using simtuta) why not just use dina demalchuta?

 

The internet is somewhat tricky because it is not localised in one country
(and even when you think it is, eg the seller is in Israel and the buyer is
in Israel, the website might well be hosted in the UK, and the credit card
company might be deeming the payments to occur in the US) and we are yet to
have a fully fledged form of international law.  It is therefore not
totally clear what form of dina d?malchusa dina applies if there is a
dispute (assuming there are differences between the different forms of law
in the different countries which might be deemed to be the locus of the
contract).  To the extent that the conventions of merchants has not fixed
on any particular law, it becomes more difficult to argue that simtuta
applies.

 

>Eli Turkel

 

Regards


Chana

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