Wednesday, December 30, 2009

Adoption, Part 1

Megilla 13a states: Whoever raises an orphan (boy or girl) in his home, the pasuk considers it as if he gave birth to them. A very similar statement is also found in Sanhedrin 19b. A slightly different formulation is found in Kesuvos 50a, which states: "Praiseworthy are the guardians of justice who perform righteousness (tzedaka) at all times (Tehillim 106)...Said R. Shmuel bar Nachmani, this refers to one who raises an orphan (boy or girl) in his home and marries them off."

Several Biblical personalities were adopted or were praised for adopting a child. These include:
  • Osnas bas Poti Fera, who was married to Yosef, was adopted by Potifar/Poti Fera and his wife, and she was the daughter of Dina from Sh'chem (Tosfos al Hatorah to Breishis 41:45). Because Poti Fera adopted her she was called bas Poti Fera.
  • Bilha was represented in Yosef's dream as his mother because she raised him after Rachel died (see Rashi, Breishis 37:10).
  • Serach bas Asher was Asher's wife's daughter, but he fully adopted her. See Ramban & Yonasan ben Uziel, Bamidbar 26:46. (Daas Zekanim there has a lot of difficulty with that explanation. And see Haksav Vehakabala, Breishis 46:17. Tosfos, Pesachim 54a s.v. Eileh argues on the Ramban and says that one may not call his wife's son his son.)
  • I heard that Yair ben Menashe was adopted by someone from Menashe, but he really was from shevet Yehudah (based on ibn Ezra, Bamidbar 32:41), but this is not conclusive.
  • Moshe Rabbeinu was raised by Basya bas Paroh after she found him floating in the river.
  • Esther was adopted by her uncle Mordechai after her parents died (Megilla 13a).
Sanhedrin 19b lists more examples.

Does one fulfill perya verivya (procreation) by adopting a child? Most poskim say no. However a very famous R' Shlomo Kulger in Chachmas Shlomo (See Shulchan Aruch E"H 1) states: "I have had a doubt whether one who raises an orphan, if this is considered a fulfilment of perya verivya, since Chazal said whoever raises an orphan (boy or girl) in his home, the pasuk considers it as if he gave birth to them, if so one may suggest that it is like perya verivya, or, nevertheless, it's not like actually giving birth to the child. It seems to depend on an argument between Derisha and Taz on Y"D 242, that Drisha holds wherever the gemara says "ke'ilu" (as it does by adoption), the compared situation is not exactly identical to its analogy, and Taz argues and says they are exactly identical...." He continues to say to the Taz you do fulfill perya verivya and to Drisha you do not. But if you had children who died but you also adopted and raised orphans, even according to Drisha you will have fulfilled perya verivya - even though they weren't the same children, you did give birth to children and you did raise orphans.

Even if one may not fulfill perya verivya, it still is a very meritorious and wonderful thing to adopt orphans. See, for example, Pischei Teshuva, E"H 154:27 when discussing a couple that had been infertile for 10 years, must the husband divorce his wife, even though she was such a great wife, and one of her praises was that she allowed her husband to raise an orphan and learn with him. (The answer there was that he didn't have to divorce her, but that's not our issue.)

Sunday, December 27, 2009

Surrogate Pregnancy (Shvatim as Jews, part 2)

Another explanation to Shimon's "Canaani" wife (Shimon had a son Shaul ben haCanaanis) is that she was Dina. See Rashi, 46:10 and Breishis Rabbah 11. After she was raped by Sh'chem, she refused to leave until Shimon told her that he would marry her. Only then did she leave Sh'chem with her brothers Shimon and Levi. How could Shimon have married Dinah, if they were both children of Leah, and we saw the Rambam lists incest of siblings of the same mother among the laws that bnei Noach must keep? Torah Shleima 46:10 os 68 brings several answers:
1) the only relationship forbidden to bnei Noach was adultery with a married woman, but not incest. This opinion, cited in the name of the Moshav Zekaynim, clearly argues on the Rambam.
2) According to Rabi Akiva, bnei Noach are not forbidden to their sister from the same mother. This is similar to the first answer in substance as well as in the difficulties it presents.
3) Ra"b (Rav Ovadia Bartenura?) "I have not found an answer but I heard that"... the girsa wasn't that Shimon will marry Dinah, it was that Shimon promised her he will marry her off to someone else, possibly one of his sons. (While an aunt is forbidden in Torah law, it isn't prohibited to a ben Noach, and in fact, Moshe Rabbeinu's father Amram was married to his aunt Yocheved.)
4) The main gestation of Dinah was in Rachel's womb. Therefore they were not really siblings from the same mother: Shimon gestated and was delivered from Leah's womb, but Dina was gestated in Rachel's womb and was only delivered from Leah's womb, and thus they do not have the same mother.

This last answer is fascinating. It is mentioned by Tur ha'aruch to 46:10 and 38:2, Targum Yonasan to 30:21, and Daas Zekanim ibid. The even earlier source is the gemara Brachos 60a that Leah didn't want Rachel to have less sons than Bilha and Zilpah, so she davened and Hashem switched the fetuses between Rachel and Leah.

This opinion has a huge impact on the following question: if a woman cannot conceive and uses a donated egg which is implanted, (or any situation of surragacy), is the biological mother - the woman who provided the egg - the halachik mother? There are three main possibilities: that the biological mother (the one who provides the egg) is the mother; the surrogate in whom the baby gestated is the mother even if she is not the biological mother as far as the egg is concerned; and the mother who delivered the baby even if the baby did not gestate [mostly] in her womb.

According to these opinions (that Shimon & Dina were not siblings from the same mother), the woman in whose womb the baby gestated will be the halachik mother. However, many poskim do not pasken this way. For example, Rav Shlomo Goren paskened that the biological mother (of the egg) is the mother. Rav Moshe Feinstein paskened that the mother who delivered the baby is the mother. In Dina's case, her biological mother and the mother in whose womb she developed was the same woman - Rachel. If doctors would take the egg of one woman, implant it to woman 2, then transplant it to a third woman late-term, to Rav Goren the first woman would be the mother, Rav Moshe would probably pasken the third woman was the mother, and to the Daas Zekanim et. al., probably the second woman will be the mother. (Really, maybe the reason for the Daas Zekanim is because the host mother is the same as the biological mother, but from his words, the main issue is that the host mother is the mother, not the biological mother of the egg.)

Sunday, December 20, 2009

Shvatim as Jews, part 1

We just saw that the Beis Yosef brought rishonim discussing how was Yosef batel from perya verivya if he didn't have a girl; maybe it was midas chasidus. The bottom line is that the assumption is that Yosef kept all the mitzvos. Which leads to the question: did the shevatim keep the mitzvos? I've previously mentioned the Prashas Drachim by the author of the Mishna Lamelech, who demonstrated from many midrashim that Yosef and his brothers argued about whether they had kedushas yisrael or not: Yosef felt they did, and the brothers felt they did not.

Joel Rich, the audio shiur reviewer at Hirhurim, sent me a source that Yosef kept Shabbos: Eliyahu Rabbah Parsha 7 s.v. Baruch. I can add two sources: the Drisha from the above discussion - Yosef kept the entire Torah, and the Daas Zekanim Parshas Naso (Bamidbar 7:48 - Yosef kept Shabbos).

A famous question is who did the shvatim marry? See Pesachim 50a: "'And Yehuda saw there the daughter of a Canaani man.' What is Canaani? If you say literally a Canaanite, is it possible Avraham warned Yitzchak [against marrying a Canaanite], Yitzchak also warned Yaakov, and Yehuda will go marry a Canaanite? Rather, Rabi Shimon ben Lakish said it is a merchant." Ramban quotes this on Breishis 38:2. He also mentions a midrash that all the shvatim were born with twin sisters, and they married a shevet from another mother (because to marry the daughter of your mother is an isur of arayos for Bnei Noach, see Rambam, Melachim 9:5. Note that this would be an isur for a Yisrael.) This is also brought by Tur Ha'aruch on that pasuk. Ibn Ezra says they married women from Aram, Mitzrayim, Edom and Midyan, but not Canaan, except for Shimon, and that is seen from Breishis 46:10 - Shaul Ben HaCanaanis. (But from Rashi to 50:17, it seems more than one married a Canaanis.) A question on the ibn Ezra is that putting the issue of who is Jewish aside, the Torah forbade marrying people from Mitzrayim. Even though the reason did not yet apply - because they oppressed us when we were their slaves, the fact of the avos keeping the Torah was absolute and did not depend on the reasons for the mitzvos; we see Avraham had matzos and Yitzchak ate korban pesach, and the exodus from Mitzrayim had not happened! So why should they have married mitzriyos? For whatever reason, marrying a Canaanite must be worse than marrying a mitzris, whether it was due to the fact that Avraham said "from the Canaanim among whom we live, but they didn't live with mitzriyos, or for some other reason.

Saturday, December 19, 2009

Tashmish During Famine

A bit of an unusual issue from the parsha. Rashi on Parshas Noach 7:7 & 8:16 says that tashmish was asur during the mabul. The first Rashi says because the world was in trouble. Rashi on Mikeitz 41:50 - Yosef had two sons before the famine - is the source that tashmish is asur during famine. This last Rashi is from Taanis 11a. Rambam brings it in Taanis 3:8. If someone wasn't mekayem piryah v'rivyah this halacha doesn't apply to them. Even if someone already was mekayem perya verivya, shouldn't they have to fulfill onah? Yes - see Beis Yosef O"C 574. Shulchan Aruch mentions this halacha in 2 places: O"C 240:12 regarding famine (Rama adds any other trouble like famine, and his source is the Yerushalmi) and the second place is O"C 574, also for famine.

There is an interesting B"Y in 574 about Yocheved bas Levi being born bein hachomos - as the family of Yaakov reached Egypt. Tosfos asks: But that was during a famine, so how could she have been conceived? Either she was conceived from Leil tevilah (Drisha assumes the shevatim also kept the mitzvos); or Levi didn't have daughters so he wasn't mekayem pv"r yet. The difficulty with that answer is why didn't Yosef try to have a girl even though it was during a famine? Maybe Yosef did some midas chasidus. A third answer is maybe because they knew they had food so tashmish wasn't asur. We'd ask the same question about Yosef - there was food? So Yosef did a midas chasidus. My next question is, if it was midas chasidus, the Rambam shouldn't bring this halacha at all, because he doesn't pasken midos chasidus. Yet he does pasken this halacha? So Rambam would say it's not a midas chasidus.) B"Y says at end it's only asmachta.

Now, what about during recession? Should tashmish be asur? Probably not. Interestingly, this
point seems to be a machlokes between political democrats (refrain) & conservatives (don't refrain) from January - see this editorial from Wall Street Journal. But another report suggests the increased workforce did cause the recession. Is recession a lagging indicator that the birthrate is too high? I don't know if the poskim had an economy like ours in mind when a halacha like this was said.

Thursday, December 17, 2009

First Anniversary

One year ago today I opened this blog and wrote my first post. Events of this week demonstrate the importance of issues related to kedushas yisrael. Between the UK High Court decision prohibiting a frum school from denying admission to a student who is not halachikly Jewish (in other words, the court said the school must admit this student even though he is not Jewish) and the sudden shakeup at EJF, we must continue to understand the many halachik issues that may crop up and be prepared to defend the Halacha.

Tuesday, December 15, 2009

Kiddushin 41a - Asur Lekadesh Isha ad sheyirena

The Gemara (41) says one may not be mikadeish a woman until you see her. Rambam paskens this Halacha in two places: Ishus 3:19 and Isurei Biah 21:3. Raavad there also says if you don't know what you're looking for, bring an am haaretz with, so he can tell you if she looks good. Shabbos 53b brings a story where a woman was so tzanua that she was missing an arm and her husband never realized it because she was so tzanua. R' Moshe Feinstein in Dibros Moshe there (43:10) discusses maybe it was kiddushei ta'us, and also why wasn't the man praised for being so tzanu'a that he never noticed. But it is strange that she should be praised when the Halacha mandates the husband to see her and see that there are no gross misfigurations.

Rashi, Breishis 12:11 mentions that Avraham didn't realize how beautiful Sarah was until they went down to Egypt. Rashi's source is Tanchuma Lech Lecha 5. The Gemara (Bava Basra 58a; Tosfos Megilla 15a s.v. Arba also discusses this) also says that Sarah was one of the four most beautiful women who ever lived. The question is, how could Avraham have married Sarah if he didn't see her, for if he would have see her he would have known how beautiful she was!

This is the question of Maharsha, Bava Basra 16a as pointed out by Gilyon Hashas here on Kiddushin 41. Maharsha answers that Avraham did see Sarah before they got married. However, he hadn't looked at closely since that time, until he saw her reflection in Egypt. He thought she wouldn't look so beautiful at that point, many years after their wedding. But when Rashi says he noticed how beautiful she was, it was a surprise to Avraham that she was still so beautiful so many years later.

Tuesday, December 1, 2009

E"H 55:1 / Parshas Vayetzei

The Gaon Maharil Diskin zt"l explained the pasuk in Vayeitzei "And they (seven years) were in his (Yaakov's) eyes like a few days, in his love for her (Rachel)" (29:20) based on the Haghos Mordechai at the beginning of Kesuvos and the Rama (E"H 55:1 in the name of the Kol Bo) that an engaged couple cannot live in the same house before their marriage, lest they come to dislike each other because they are always seeing each other. Therefore the Torah emphasizes here the sanctity of Yaakov, even though he lived for seven years in the same house as Rachel before their marriage, his love did not change (diminish) and they were in his eyes like only a few days, and this is because of his great sanctity, that he was fully sanctified to Hashem.
--quoted in Har Tzvi al haTorah, collected from sayings of Rav Tzvi Pesach Frank zt"l

Or it could have been that Yaakov was out of the house so often with the flocks that he didn't see Rachel so often.

Thursday, November 26, 2009

Guide to Chodosh

The updated Chodosh guide:


The first version (includes introduction not included in the updated guide):


Monday, November 23, 2009

A Call for Jerusalem

A version of this dvar torah was delivered two weeks ago:

Recently there were two articles on Jpost about why youth under age 35 are not supportive of Israel, one wishing for what we'll call a return to traditional Zionist values, and one arguing that the Israeli government is immoral and thus supporting it is unwarranted.

My opinions vary greatly from Mizrachi, but I do consider myself a strong supporter of Zion. I wish to use the last of the Sheva Dinichemta, the Haftorah of Nitzavim (Yeshaya 61:10-63:9), to demonstrate that we owe our allegiance to Israel.

62:1 For the sake of Zion I will not be silent, and for Jerusalem I will not be quiet....

The importance of Yerushalayim to us I discussed (HERE and HERE). But there is an emotional connection, not easily verbalized. It is the heart and the brain of the Jewish people.

62:6 On your walls, O Jerusalem, I have set watchmen all day and all night, they will never be silent....

When the government of the State of Israel defends its citizens from bodily harm from rockets or anything else, it is only doing what it must do. (The only question might be what took them so long to do it.) We pray for our coreligionists under attack. We visit their communities to give them chizuk. And if we do not -- we have betrayed our brothers and sisters. We must not leave our watch posts, thereby endangering our brothers and sisters....

On Pasuk 63:1, the Gemara (Makkos 12a) says: Reish Lakish said: The officer of Rome will make three errors in the future, as it says, "Who is this coming from Rome, wearing stained clothes, from Batzrah." He erred that the city of refuge is Betzer, and he went to Batzrah; it only serves as a refuge for a shogeg (not on purpose) and he was meizid (on purpose); and he erred that it only is a refuge for men and he is an angel.

What argument can one make that he helps the oppressed by advocating against the genocide in Darfur when his brothers flee to bomb shelters when rockets rain on civilian areas? What good is it when a young woman is reducing her carbon emissions (like a modern incarnation of the pagan worshipers of Gaia) when her sisters are hungry, whether due to a dry winter, or to economic distress? How can you say that the Israeli government is guilty of war crimes when it takes very restrained action to guarantee the safety of its citizens? Your clothes are stained with the blood of your brothers and sisters, and yet you say 'look how hard I'm working to save some underprivileged (by my own measure) group.' Do you remember the rallies on behalf of Soviet Jewry? They were oppressed! Some chickens running around in a field you think is too small and dirty do not need your activism. Their engaging in all types of activism - except on behalf of the hundreds of thousand Israeli Jews in range of Palestinian rockets - endangers the citizens of Israel and all Jews worldwide.

Do these people think Herzl's plan for a Jewish state exists and that it is in Sudan? Who accepts Sudanese refugees - Palestinian Muslims (their co-religionists) or the Jewish State? (We also just saw the Wall Street Journal report that Israel and the US just brought more Jewish refugees from Yemen who have been hiding in their homes for the past few months from pogrom-like violence!) I think 'cognitive dissonance' is just a fancy term for saying 'I'm young and inexperienced and don't understand life, but I don't think it's right.'

When a segment of the Jewish people endangers the rest, and emboldens the enemies of the Jewish people, their punishment is very severe (see Netziv, Haamek She'eilah 142:9). At Chanukah - the fighting between Jew and Jew was worse than between Jew and Yevanim. May we find broad and deep common ground to keep us united.

The haftorah ends (63:9): בְּכָל-צָרָתָם לא (לוֹ) צָר וּמַלְאַךְ פָּנָיו הוֹשִׁיעָם בְּאַהֲבָתוֹ וּבְחֶמְלָתוֹ הוּא גְאָלָם וַיְנַטְּלֵם וַיְנַשְּׂאֵם כָּל-יְמֵי עוֹלָם.
May we merit this again very soon, amen.

Sunday, November 15, 2009

Anniversaries of Communism & Terrorism

Besides for the 20th anniversary of the fall of the Berlin Wall, last week also marked the fifth "yahrzeit" of Yasser Arafat yemach shemo. The holiday of Purim recalls the physical salvation of the Jews in the time of Haman, and Chanukah represents the spiritual salvation of the Jews from the Yevanim. While the Jewish people through history have been pressured with every kind of pressure imaginable, in the past 65 years - only since the end of World War II - terrorism and communism are certainly the most notable manifestations of these traits. It is fitting that these anniversaries fall out so close to each other as they do, though I've never known anyone to connect them. May terrorism be quickly blotted out, and join Marxism-Leninism "in the ash heap of history."

Yizkireim Elokeinu letovah im shar tzadikei olam, veyinkom l'eineinu nikmas dam avadecha hashafuch.

Below is Boston Globe columnist Jeff Jacoby's powerful column after the death of Arafat.

Arafat the monster
By Jeff Jacoby, Globe Columnist | November 11, 2004 | Boston Globe

YASSER ARAFAT died at age 75, lying in bed surrounded by familiar faces. He left this world peacefully, unlike the thousands of victims he sent to early graves.

In a better world, the PLO chief would have met his end on a gallows, hanged for mass murder much as the Nazi chiefs were hanged at Nuremberg. In a better world, the French president would not have paid a visit to the bedside of such a monster. In a better world, George Bush would not have said, on hearing the first reports that Arafat had died, "God bless his soul."

God bless his soul? What a grotesque idea! Bless the soul of the man who brought modern terrorism to the world? Who sent his agents to slaughter athletes at the Olympics, blow airliners out of the sky, bomb schools and pizzerias, machine-gun passengers in airline terminals? Who lied, cheated, and stole without compunction? Who inculcated the vilest culture of Jew-hatred since the Third Reich? Human beings might stoop to bless a creature so evil -- as indeed Arafat was blessed, with money, deference, even a Nobel Prize -- but God, I am quite sure, will damn him for eternity.

Arafat always inspired flights of nonsense from Western journalists, and his last two weeks were no exception.

Derek Brown wrote in The Guardian that Arafat's "undisputed courage as a guerrilla leader" was exceeded only "by his extraordinary courage" as a peace negotiator. But it is an odd kind of courage that expresses itself in shooting unarmed victims -- or in signing peace accords and then flagrantly violating their terms.

Another commentator, columnist Gwynne Dyer, asked, "So what did Arafat do right?" The answer: He drew worldwide attention to the Palestinian cause, "for the most part by successful acts of terror." In other words, butchering innocent human beings was "right," since it served an ulterior political motive. No doubt that thought brings daily comfort to all those who were forced to bury a child, parent, or spouse because of Arafat's "successful" terrorism.

Some journalists couldn't wait for Arafat's actual death to begin weeping for him. Take the BBC's Barbara Plett, who burst into tears on the day he was airlifted out of the West Bank. "When the helicopter carrying the frail old man rose above his ruined compound," Plett reported from Ramallah, "I started to cry." Normal people don't weep for brutal murderers, but Plett made it clear that her empathy for Arafat -- whom she praised as "a symbol of Palestinian unity, steadfastness, and resistance" -- was heartfelt:

"I remember well when the Israelis re-conquered the West Bank more than two years ago, how they drove their tanks and bulldozers into Mr. Arafat's headquarters, trapping him in a few rooms, and throwing a military curtain around Ramallah. I remember how Palestinians admired his refusal to flee under fire. They told me: `Our leader is sharing our pain, we are all under the same siege.' And so was I." Such is the state of journalism at the BBC, whose reporters do not seem to have any trouble reporting, dry-eyed, on the plight of Arafat's victims. (That is, when they mention them -- which Plett's teary bon voyage to Arafat did not.)

And what about those victims? Why were they scarcely remembered in this Arafat death watch?

How is it possible to reflect on Arafat's most enduring legacy -- the rise of modern terrorism -- without recalling the legions of men, women, and children whose lives he and his followers destroyed? If Osama bin Laden were on his deathbed, would we neglect to mention all those he murdered on 9/11?

It would take an encyclopedia to catalog all of the evil Arafat committed. But that is no excuse for not trying to recall at least some of it.

Perhaps his signal contribution to the practice of political terror was the introduction of warfare against children. On one black date in May 1974, three PLO terrorists slipped from Lebanon into the northern Israeli town of Ma'alot. They murdered two parents and a child whom they found at home, then seized a local school, taking more than 100 boys and girls hostage and threatening to kill them unless a number of imprisoned terrorists were released. When Israeli troops attempted a rescue, the terrorists exploded hand grenades and opened fire on the students. By the time the horror ended, 25 people were dead; 21 of them were children.

Thirty years later, no one speaks of Ma'alot anymore. The dead children have been forgotten. Everyone knows Arafat's name, but who ever recalls the names of his victims?

So let us recall them: Ilana Turgeman. Rachel Aputa. Yocheved Mazoz. Sarah Ben-Shim'on. Yona Sabag. Yafa Cohen. Shoshana Cohen. Michal Sitrok. Malka Amrosy. Aviva Saada. Yocheved Diyi. Yaakov Levi. Yaakov Kabla. Rina Cohen. Ilana Ne'eman. Sarah Madar. Tamar Dahan. Sarah Soper. Lili Morad. David Madar. Yehudit Madar. The 21 dead children of Ma'alot -- 21 of the thousands of who died at Arafat's command.

Jeff Jacoby's e-mail address is

© Copyright 2006 Globe Newspaper Company.

Sunday, November 8, 2009

Shiurim Given by Harav Moshe Soloveichik

Sunday Morning
9:45 - 10:45 AM
Cong. Kesser Maariv
4341 W. Golf, Skokie
Halachik topics on the Sedra of the week

Monday - Friday mornings after shacharis
(app. 7:45 - 8:45 AM)
Cong. Beth Sholom Ahavas Achim
5665 N. Jersey, Chicago
Presently studying Sugyos concerning Chanukah

Monday - Friday mornings
9:45 - 10:45 AM
Yeshivas Brisk
3000 W. Devon, Chicago
Presently studying fifth Perek of Maseches Brachos

Thursday evenings
7:15 - 8:45 PM
Young Israel of Northbrook
3545 Walters, Northbrook
Hashkafa Shiur on the Sedra of the Week

Shabbos - after Mincha Cong. Beth Sholom Ahavas Achim
5665 N. Jersey, Chicago
Halachik Topics as applied to Contemporary Issues on the Sedra of the Week

Monthly Shiur in memory of
Mr. Sandor Kirsche z"l
Home of Irv and Lynn Shapiro, Skokie
For info call: (773) 267-9055
Halachik and Philosophical Topics as Applied to Contemporary Issues

There are additional shiurim at Congregation Beth Sholom Ahavas Achim on Orach Chaim and Yoreh Deah - specifically for those who are studying to receive Semicha

UPDATE: He is now also giving a shiur on Monday evenings at 8:45 pm at Brisk, on the Parsha or holidays.

Saturday, October 31, 2009

Isha ubita from adultery

In memory of my great-great grandfather, Harav Yosef Michel Newberger, whose 75th yahrzeit was on Friday.

This is related to a point discussed in the Noda Biyehuda: this man should not have married the daughter of the woman with whom he had an affair, but it's midirabanan so now that he is married and has not repeated the aveira he may remain married to his wife.

I was looking at the gemara related to this din - Yevamos 97a: The mishna says if someone seduced or raped a woman he is allowed to marry her mother, sister or daughter, and it is not a prohibition of isha u'bitah or isha v'achosa. Then the gemara asks a contradiction: one who was leaning from a woman "hanitan min ha'isha"is forbidden with her mother, her daughter and her sister midiraban. How can our mishna say he's allowed to marry her close relative? (Note: hanitan implies they were not married but had a relationship.) The gemara answers he may marry her sister, mother or daughter after she dies. But while she is alive he may not.

The Rambam (Issurei Biah 2:11) paskens this gemara on 97 a bit strangely: One who had illicit relations, her seven relatives do not become prohibited to him. But the chachamim forbade one who committed adultery with a woman, to marry any of her 7 relatives as long as the woman (zonah) is alive. Because the woman (zonah) will visit her relative and he will be alone with her and his heart will desire her and they will come to an aveira. And moreso, even if he was leaning on a woman (nitan al ha'isha) he should not marry one of her relatives until she - the one he leaned on - dies. If he married the relative he does not have to divorce her. Why dies the Rambam list the cases separately? Maybe because the first case is where we knew there was a relationship and the second case is where it's only rumored. Or, the first case is an illicit relationship - maybe with a married woman, and the second case is where it was a permitted relationship (kiddushin would be tofsin) but it was outside of marriage.

I recalled the mishna in Yevamos 24b: one leaning on a servant "nitan al hashifcha" and she was freed; or on a non-Jewish woman and she converted, ho should not marry her, but if he did, he does not have to diverce her. One who leaned on a married woman "hanitan al eishes ish" and her husband sent her away [i.e., divorced her] even though they got married, he must divorce her. Why does 97a say min ha'isha and on 24 it says al hashifcha etc.? I think that on 97 the relationship ended. Still it's asur to marry her relative until she dies. On 24 it's a case where the relationship is ongoing. In fact, Rav Moshe Feinstein in Igros Moshe E"H 27 quotes himself in Dibros Moshe Yevamos (I think it's page 312 - hearos Yevamos perek 2 os 52) that the problem in the cases on daf 24 was that these relationships were rumors, and the subsequent marriage gives validity to the rumors. But where it's known, and it's not a rumor, it is not prohibited to marry the freed shifcha or convert.

Famous Teshuvas Harambam 132 in Pe'er Hador about this nitan al hashifcha; he's matir not because it's really mutar, but because of Takanas Hashavim.

Teshuvos Rabi Akiva Eiger 121 (in Even Haezer) discisses a shaila where a woman claims to have converted with her daughter. The validity of the conversion was in question because it was from a faraway place and was never confirmed; she married a man, there were rumors he was playing around with the daughter, and after the mother died he went around until he found a rav who would marry them (he omitted some details and when that Rav found out all the details he was very upset about it). So he discusses both these issues - the nitan al ha'isha and also isha u'bita in an unusual circumstance.

As always, see those teshuvos inside for the context and exact circumstances discussed.

Thursday, October 22, 2009

Parshas Noach - Mesora in Torah Shebiksav

Chumash is Torah Shebiksav. When we speak of Mesora, we mean Torah Sheb'al Peh. Interestingly, there is a Mesora of the proper text of our Sifrei Torah. Unfortunately I do not have time to discuss this is detail; I can only give a brief introduction at this time.

The last Rashi in Parshas Noach (11:32) says that the nun in the word Charan is turned over (think of the nuns around vayehi binso'a in Beha'aloscha; but see Minchas Shai there about how the nun looks). The Minchas Shai asks that none of our sifrei Torah have an inverted nun. Are our sefarim kosher? Short answer: yes. He quotes a Teshuvas HaRashba (meyuchasos LeRamban, 232) quoted by Beis Yosef, Y"D 175 who discusses that there are several instances where a word has (or doesn't have) a yud or vav to make it "malei" but we have drashos in Gemara or Midrash that have the word spelled the other way. Many quote from Kiddushin 30a that we (already in the time of the gemara) are not experts in malei and chaser spellings. (About this, see Tosfos, Shabbos 55b s.v. Maaviram, and Gilyon Hashas there, by Rabi Akiva Eiger, who goes through many cases in Tanach were there is a discrepancy). Note that none of these spellings changes the meaning of the word. An answer which has been suggested to explain these differences have to do with the spellings of words in Ksav Livnai as opposed to their spellings in Ksav Ashuri (which we've used since the time of Ezra. See Sanhedrin 21b-22a, and Tosfos Megilla 2b s.v. ve'od).

The small Koren Tanach in the back has a list of differences between texts; there are three in Chumash. One is in this week's Parsha (9:29): Vayehi Bnei Noach or Vayihyu bnei noach.

There are also minor discrepancies where a parsha (blank space in the Torah, almost like a new paragraph) is different in our Torah versus what the Gemara says: In Lech Lecha - by the Bris Bein Habesarim. Se Tosfos Brachos 7b s.v. Lo haya. (About that, see Tzlach there; Netziv in Harchev Davar Breishis 15:8; also my uncle's friend Leesh showed us that Chadashim gam Yeshanim by R' Yehonasan Steif, and Birkas Yitzchak by R' Yitzchak Bernstein of England in Brachos briefly discuss this issue.) The Koren Tanach also lists a discrepency of whether a parsha is at Vayikra 7:28 or 7:22

Rambam, Sefer Torah 8:4 discusses that there are discrepancies in these matters; many of them are machloksim between Ben Naftali and Ben Asher. Rambam found a Torah fixed by Ben Asher in Egypt and lists the locations of all the parshios based on that Torah in Mishna Torah.

Another point which is probably more minor is the idea of Tagin - little "crownlets" on letters. Rabi Akiva made drashos on letters based on how many tagin they have. Some have none, some have one, and the letters "Shatnez Gatz" have three. See Meiri Kiryas Sefer Maamar 2 Cheilek 1 who only discusses Shatnez Gatz. But there are exception - som have four, and some letters sometimes have more than usual. See Ramban Devarim 27:3, that the tagim were copied from the avanim. (See Griz Stencils Menachos 29b.) The ArtScroll Baal Haturim (Davis edition) goes into some depth about tagim because the Tur sometimes discusses them. See there, Vayikra 23:43 (p. 1257) and footnote 138: Sefer Tagin "lists 55 instances where Kof is embellished with 4 tagin and 74 where the final kof has 4 tagin. Basukos in our pasuk isn't on the list, but basukos in pasuk 42 is...either he had a different text or the Raal Haturim has a different mesorah than Sefer tagin."

Tuesday, October 6, 2009

Thoughts on this Noda Biyehuda

In memory of my rebbi, Hagaon Harav Ahron ben Hagaon Harav Moshe Halevi Soloveichik zt"l on the 4th day of Sukkos, his eighth yahrtzeit.

Several points in no particular order:

1) Possible nafka mina based on this teshuva: If I know that someone intends to marry someone who is assur to him (or her), even if the issur is not known except to me, must I inform him? (Mamzer shelo noda may be an exception, but that’s midin mamzer shelo yada, not this more general rule discussed here). Probably I must inform the "kosher" person (whether it's a kohen about to marry a zonah or whatever else it may be), but if it's not a known psul, do I have to tell the local beis din? Not sure.

2) Rav Ashi – does he hold mesayei’a is chayav? In the context of this NB, when you leave the shatnez on, you’re mesayei'a by not contorting yourself into a position to remove it. When you remove it, you’re not chayav for the the time it takes to remove it, because in your action of removing it we see you do not want to be wearing shatnez, so you’re not mesayei’a. Why would I say a strange svara like this? This might be better for a Makkos post. Makos 21b (Noda Biyehuda calls it Machlokes Rav Beibo and Rav Ashi – but it is a machlokes Rav Acha brei D'Rav Ikka and Rav Ashi in response to a question posed by Rav Beibo.

My feeling - I don't think I can go through the sugya here, but does the din of mesayei'a apply only to cutting off peyos & beard, or does it apply to all aveiros? I felt, based on Tosfos, Shabbos 93b s.v. Amar Rav Zevid, that mesayaie'a only applies to peyos and beard. Then I saw my rebbi zt"l (whose yahrzeit is today) in his sefer Od Yisrael Yosef Bni Chai (siman 34) discusses the machlokes Shach and Taz in Yoreh Deah 198 about cutting nails for a woman who needs to go to mikva on shabbos or yom tov, mentions the whole Taz (se'if 21) and Shach (in Nekudos Hakesef) there. As Taz holds mesayei'a applies to other aveiros, like Shabbos. Rav Ahron strongly agreed with the Shach, that mesayei'a is only chayav for peyos. And he said the machlokes Shach & Taz is a machlokes Rambam & Raavad.

Rav Ashi is the one who says mesayei'a is chayav even as a nikaf; Rav Ashi in Shabbos 93b gives a proof that mesayei'a ein bo mamash, and Rav Ashi said if you leave the shatnez garment on you're chatav multiple times. In general Rav Ashi holds mesayei'a ein bo mamash except for peyos. Then why for shatnez are you chayav? So it's probably NOT a din in mesayei'a. Maybe the drasha (in Makkos 21 and 4b) "sadcha kilayim lo" applies to wearing shatnez also. But we get back to the question that it's lav she'ein bo maaseh, so why would you be chayav for not removing the shatnez garment? Maybe because in this case Rav Ashi holds mesayei'a is chayav. This is not compelling, but I don't know how else to explain it.

3) "David (i.e., Tehillim) for this matter will strengthen in his heart the love of his Creator." NB seems to hold like Baal Hatanya and not Nefesh Hachaim about torah lishma and tehillim. Baal Hatanya holds Torah Lishma is dveikus, love of Hashem & Torah, and saying Tehillim can lead to this. Rav Chaim of Volozhin in Nefesh Hachaim says Torah Lishma is studying Torah because you like it, for its own sake. Nefesh Hachaim brings a Rosh in Nedarim to support his opinion.

4) "we do not find isur mosif unless another prohibition is added or an obligation" – this is machlokes nosei keilim See Bach, Shach and Taz by basar bchalav (Siman 87) would the issur of basar b'chalav be added onto a piece of treif meat – chaticha naasis neveilah wouldn't apply to mechaber on a piece of treif meat but would apply to basar bechalav. Not sure how that halacha fits with NB.

5) "see Chagiga 9b that an adulterer's sin continues because he cannot rectify it."
Chagiga 9b says arayos is me’uvos lo yuchal liskon because you can never make her muteres l’baalah. It might be considered an isur moshech (a continuous sin) – Rogatchover in Tzofnas Panei’ach, Pinchas (Bamidbar 13, pp. 261-3) says that murder and being boel a non-Jewish woman are isur moshech, that continues on. Could be that arayos of eishes ish is also moshech, it continues, because there is a permanent effect on the woman – she is forbidden to her husband – because of the aveira. (In regard to murder, think of the passuk kol dmei achicha tzoakim when Kayin killed Hevel, Hashem said the voice of the bloods of your brother cry out - bloods for his blood and the blood of his descendants who will not be born now that he was killed.)

6) Is a sin of arayos, like eishes ish, considered bein adam l'chaveiro or bein adam l'makom? NB says eishes ish has two parts, the bein adam lamakom, and bein adam lachaveiro part in that he makes the woman forbidden to her husband (it's a sin against the husband).

Rambam seems to hold arayos is bein adam lamakom. See Hil. Teshuva 2:9 - "Teshuva and Yom Kippur only atone for aveiros bein adam lamakom like someone ate something forbidden or had a forbidden relationship (ba'al b'ilah asurah)." This is probably incest arayos, but Eishes Ish probably also has a bein adam lachaveiro aspect.

Gra in Aderes Eliyahu, Haazinu (Devarim 32:5), says there is a third category of sins - bein adam l'atzmo, and that arayos are part of this group.

Thursday, October 1, 2009

Noda Biyehuda - Part 6 (end)

In memory of Rabbi Meyer Juzint, Harav Meir ben Harav Hakadosh Rav Moshe zt"l, whose yahrzeit is on the second day of Sukkos.

That which you mentioned from his hasmadah inlearning, his broken spirit and his watching his speech is a great foundation upon which to rely. He should make an oral vidui to fulfill “and my sin is always before me,” and be remorseful. Now, one must do vidui on a small sin, even a dirabanan. He had a relationship with this woman, so before his marriage he was forbidden to marry her daughteras we see in Yevamos, perek Nosin al haanusah, but now that he is married he does not have to divorce her as is explained by Rambam and Shulchan Aruc E:H 15:33. Since before the wedding he transgressed a dirabanan and need remorse he must distance his mother-in-law from his house; she should not come at all, for if she does, he must divorce his wife according to the Rama there, se’if 27, and certainly he may not live in her house. Chazal said: whomever lives in the house of his in-laws… certainly here where he already stumbled.

Even though I am lenient in fast, etc. for this man, to exempt him without anything is impossible, especially because of the consistency of the sin. Hasmadah in Torah is paramount. He should learn things of substance like mishnayos in great depth with Tosfos Yom Tov, Shas, Poskim, Tanach, and also mussar books – Chovos Halevavos from after Shaar Yichud to the end and the Shla where he does not discuss Kabbalah, and Hilchos Teshuva of the Rambam. He should cling to the songs and praises of King David (i.e., Tehillim) for this matter will strengthen in his heart the love of his Creator. But other prayers and supplications from the past few generations he should distance himself (one line I’m unsure how to translate). At every midnight he should cry on the destruction [of the Mikdash] and for the exile. Since he is a weak man and he learns much Torah he should not fast in the summer, when there is extreme heat like Tamuz, except for Erev Rosh Chodesh, and the rest of the summer he should fast one day a week, except Elul when he should fast 2 or 3 days, according to his strength, and he should fast every day of the Aseres Yemay Teshuva, and in the winter from Cheshvan until Nissan he should fast three days a week, and one of them should be a complete fast of an evening and the following day. He should do this for three consecutive years (corresponding to the three years of his forbidden relationship) and if he consistently wakes at midnight and midnight does not pass and he is till asleep, and if he stands guard until the light of day, and not necessarily standing, but sitting is okay, as long as he does not “batel”his Torah learning and Tehillim from midnight, then he can lighten his load a little from the fasts and fast only twice a week in the winter.

More acts of penitence – you already mentioned that he does not sleep on a bed at all, and it is sufficient. He should distance himself from laughter (schok – probably includes joking around) – he shouldn’t for three years; what place does happiness have while he mourns for his sin. He should not look at women. These whole three years during the week he should not drink wine of any type of a warming drink except tea with sugar and sometimes a little coffee. On his wife’s onah night he may drink these drinks and I will not tell him what his onah is; he is not allowed to steal his wife’s onah, and it depends on his temperament and nature, and he should choose the middle path and he should not be too strict with what is permitted to him, and Chazal have said “the left [hand] pushes away and the right draws near.” And he should to tevilah for keri. After the end of three years in the second three years he fast Monday and Thursday in the winter and for the summer he should do like the first three years, and in the second three years he may sleep on a bed if he wishes, and according to his strength (if he is well enough to have a rough bed, he should have that and not a more comfortable bed). For the rest of his life he should fast once a week in winter and in the summer erev Rosh Chodesh to fulfill “my sin is always opposite me” and between Rosh Hashana and Yom Kippur he should fats every day (except Erev Yom Kippur – Ed.).

You mentioned he is wealthy, so he should give a lot of tzedaka. And how good it will be if he follows the teshuva set out by the Rokeach [in this matter of charity]. I currently do not have the Rokeiach to to look, but he should see the fasts for eishes ish, and maybe also for niddah because he wasn’t careful about her niddah days [if he was already being boel an eishes ish]. He should multiply the number [of fasts] three times according to the Kneh Chachma and the total days he should redeem with tzedaka according to the calculation of S”A O”C 334 each day is 12 coins, should be 18 coins according to the Magen Avraham’s calculation (34) in the name of Terumas Hadeshen, and he should distribute it to tzedaka if possible without his wife’s instruction, and still he should fulfill the fasting I arranged, “and may the Merciful One forgive the sin” and turn from his sin and be forgiven.

That which I said he should also fast for Nida, the prohibition of nida comes over the prohibition of a married woman because it is an issur mosif, since the nida becomes prohibited to her husband. That is only if their first adultery was when she was a nida- then he also violated nida, even though [the prohibition of] being a married woman came first, still it is an isur mosif, but if the first adultery was when she was not a nida, then immediately she became forbidden to her husband because of her infidelity, then when she became a nida, the isur nida does not come at all, because nida is not an isur mosif to anybody, because she’s forbidden to everyone because she is married, and now she’s even prohibited to her husband because of her infidelity, and even though the prohibition of nida is stricter that her being unfaithful in that nida carries a punishment of kares, a prohibition does not cover another prohibiton (ein issur chal al issur), not even a strict issur on a less strict one unless it is issur kolel or issur mosif. Then if they committed a second act of adultery when she is a nida, he is only liable for eishes ish and not nida. To suggest that nida is issur mosif since it takes effect on an unfaithful woman, even though we are impure for the dead, there is a difference in halacha to also be a nida in regard to imparting tumah upon your chair – my heart does not agree with that because in all of shas we do not find isur mosif unless another prohibition is added or an obligation (like another punishment) but through method of transmitting tumah is not an issur or obligation to be considered isur mosif. And to say that there is an additional obligation according to the opinion that one who enters the Temple mount today in a state of tumah receives Kares, for kedushas mikdash never left, and if isur nidda is added for that it should be added also here, for adultery – I don’t know of any source that nidda is another obligation when she enters har habayis, because there is already a liability of kareis for entering the mikdash in a state of tumas mes. And I saw in the sefer Kaftor Vaferach a question why don’t we offer the daily and mussaf korbanos and all communal sacrifices and korban pesach nowadays [after the destruction] because we pasken we may bring korbanos in the absence of the Beis Hamikdash (note: the opinion that one may enter har habayis today does not agree with this)? He answered since we don’t have a kohen meyuchas. But we know of kohanim meyuchasim, we could bering a korban pesach, this woman on pesach may enter the courtyard of the Mikdash and eat the korban pesach in a state of tumas mes, now that she is a nida, a prohibition was added in regard to pesach, so let the prohibition be added in regard to adultery? This depends on the opinion that the kedushas mikdash did not end, I doubt this and the matter needs investigation.

That was to teach for another situation such as where the huband was accidentally (shogeg) obligated for coming to the mikdash in a state of impurity, in that case we say one prohibition does not cover another prohibition. But for repentance, he is certainly obligated to repent for all prohibition he violated, even if ein isur chal al isur. For more sins he is considered a bigger rasha. This is a machlokes tanaim Rabi Yosi and Rabbi Shimon in Yevamos 32b … the difference is to bury him among complete reshaim. So even if he only receives one punishment because of ein isur chal al isur, his evilness is increased because of the additional prohibition to bury him among completely evil people, so he must doe teshuva for it. Tosfos there s.v. bein writes that Rabi Shimon holds even if this act includes two prohibitions, since he is only punished for one of them he is not burined among completely evil people, to Rabi Shimon his evilness was not increased due to the second prohibition, then he would only need teshuva for the first sin, and to Rabi Yose he must do teshuva for both, and in a machlokes Rabi Shimon and Rabi Yosi the halacha follows Rabi Yosi.

This is the end of the teshuva.

Tuesday, September 29, 2009

Happy Sukkos

Unfortunately there are very real problems of sexual abuse in out communities. Thankfully, we have someone who works on behalf of the victims and tries to stop abuse before it starts. Instead of putting pictures of those "gedolim" who protect and enable pedophiles in your sukkah, put up this picture of Harav Chayim Soloveichik. He is an outspoken voice in defense of our children, and putting this picture up in your sukkah will hopefully raise awareness of this important issue and show pedophiles that they are not welcome.
If you bring your children to open, public events during the Chag, such as a Simchas Beis Hasho'eivah, please keep an eye out on your kids. An open, community-wide event is an opportunity for innaproproate activity by these people.
Chag Samei'ach.

Sunday, September 27, 2009

Nida Biyehuda - Part 5

That which you asked me to arrange an order of teshuva for this baal teshuva and you mentioned he is weak and can’t fast so mauch, you also mentioned the amazing hasmada with which he learns day and night and does not say unnecessary things and does not sleep in a bed at night. Now, you asked a difficult thing, for I usually do not answer questions for which no answer is found in the gemara and poskim, for we have not found in all the Talmud the unmber of fasts for each sin according to its severity. True, the verse states "return with fasts." But the number of fasts is not in Tanach of the gemara, but Mussar and Teshuva books go into great lengths in these matters but most of their words are based on thoughts from the stomach (in Yiddish we call this a boiche sevara, a thought from the stomach, meaning you’re using your stomach to think instead of using your head -Ed.) without any basis. And each book quotes from the next oe but they have no foundation. We find in these books many stringencies and many leniencies and it is difficult for me to answer, especially after I see that this man is a young Torah scholar he should arrange his own Teshuva, especially because these Mussar books are very accessible. But because you want to know and he is weak and is a young Tora hscholar I will not hold myself back from commenting. Now his sin is very grave - adultery with a married woman is very serious. And he did it very often over three years and he was with her I nthe house and he was obviousle wit hher many, many times and would he have the years of Mesushelach (the oldest man ever - 969 years) he would not be able to fast enough to counter the sin according to the Teshuva system of the Rokeiach, which is based on Kabbala, and we cannot compare his words to the later works (apparently he means compared to those Mussar books which he just said have no basis). And the Knei Chochma said for those who return [in repentance] it is sufficient to do teshuva of the same weight for that sin three times has no basis. And if someone who did an aveira for which you would receive malkos 20 times and he was warned each time, would three sets of malkus suffice? Beis din will punish him according to the number of warnings. And an explicit mishna says if they told [a nazir] don’t drink [the wine] several times, he receives multiple sets of malkos. And that which he said with the third time the sin is stained on his neshamaand there is nowhere for the fourth time [of the sin] to [affect his neshama], this has no merit. Is his son the only thing affected? It makes problem in higher [worlds (see Nefesh Hachaim, Shaar 1 - Ed.)] and Chazal said on the verse "Vatishkach kel mecholelecha (Haazinu)....I don’t look at these types of books, but I remember a little from my youth.
All this would be important if fasting was the main part (me’akeiv) of teshuva. But it is not; fasting is subordinate to Tehsiva, and the main teshuva is leaving the sin and verbal confession (vidui) with a broken heart and deep heartfelt remorse and a desire to love the Creator (Hashem) and that is returning to Hashem . Everything else is subordinate to this. Know, there is no doubt that Teshuva affects full atonement and this is explicit in Tanach and in both Talmuds and in all the midrashim. The prophet Yechezkel said "when a rasha returns from his wickedness..." "All the sins that he sinned will not be remembered. And there is no doubt that in the time of the Sanhedrin if he violated a capital sin if the witnesses did not come for many years and in the meantime he did teshuva and fasted so much, beyond what th eRokeiach says, and after the Teshiva the witnesses testified against him in Beis Din certainly the Beis din will not take his teshuva into accountand they will give him the punishment of sekila or sereifa etc. according to his sin. This matter is hard to understand, for Teshuva helps and he already turned away from his sin and he received atonement, why is he killed? We don’t kill innocent men! Yet the mishna says if someone guilty of a capital crime did teshuva the beis din cannot firgive him [and they must give hi mthe punishment he deserves]! So it is the gzeiras hakasuv [that we kill him] for if we allow teshuva to push off the punishment, we will no longer have a system of capital punishments. Whenever someone will be guilty he won;t be killed because he will do teshuva. Since Hashem wanted go give punishments of death for a small number of sins so people will be afraid of transgressing them, teshiva will not help for a capital crime. If you think a certain teshuva regimen is the main part of teshuva it should have been told to Moshe at Sinai, and then why shouldn’t teshuva help to save one from capital punishment? Even though there will be some who don’t do teshuva, and there are some thinkgs to do like sit without clothes in front of bees [to get stung which should be for teshuva] or to roll in snow [and the pain should be for teshuva] and other similar things mentioned in these teshuva books, and whoever does not do this will get killed by beis din, even fasting won’t work if the witnesses come to beis din before he was able to fast all the days he needed to fast. ..But fasting is not the main thing; real teshuva is sincere remorse. This can be achieved in one moment...

Even though there are four levels of forgiveness - Chazal said if you transgressed Kareis or misas beis din, Teshuva an Yom Kippur [hold your punishment in abeyance] and yissurim (sufferings) will cause you to achieve forgiveness - seems to show that yissurim are the main part of the forgiveness? I answer that it’s true that you need yissurim, Chazal said even trying to take three things out of your pocket and you only got two is yissurim, see end of perek yesh b’Eirachin. And it’s true that the Rokeiach is kabbala and he gives a specific teshuva for a sin, that’s external to help the baal tehsuva break his stubborn heart to be able to have remorse in his heart. As long as his heart is not broken he cannot have remorse. Someone who is able to break his heart though Torah study , I would be very lenient in the number of fasts. But remorse and a broken heart and cerying is very important and one who cries privately is praiseworthy. For the main Teshiva I see this man has already made great strides - he hasn’t sinned with this woman since he got married two years ago even though they still live in the same house. Gemara end of Yoma says who is a baal teshuva? When the same [opportunity to] sin came once and twice and he was aved from it. Rav Yehuda said it must be the same woman during the same time period, and that was fulfilled with this man. Still, while it was the same woman, it’s not really a similar situation because now this man is married, but when he sinned he was a bachelor, and I do not know if he stopped sinning with her from teshuva or because his wife would have found out about it.

Noda Biyehuda - Part 4

Two, we must understand the lenient opinion in the Yerushalmi, and to say it agrues on the Bavli is unsatisfactory. The Yerushalmi’s phrase “k”h is great that it pushes off the mitzvah if it’s a lo taseh, for a certain amount of time [lit. one hour]” is strange. Why the double useage of mitzvah and lo taseh, just say lo taseh! Rather the intent of the Yerushalmi is that k”h pushes off a mitzvah. When? The condition is for a lo taseh in a passive situation, but not actively. Now the Yerushalmi is exactly like the Bavli in that it only allows temporary suspension of the prohibition of shatnes because of k”h. Now the question is if you find your own garment has shatnez, how can the Y consider that passive, and Bavli calls it active? So I feel the amoraim in Y argue on the same point as the amoraim in the Bavli, Makos 21b: [how are you chayav many times for wearing shatnez?] Rav Beibo said when you take it off and put it on again. Rav Ashi says if you keep wearing it for the amount of time you could have removed it [you’re chayav]. To Rav Ashi, wearing it and not taking it off is considered an act of wearing shatnez, for if not, how could be chayav malkos, for the rule is there is no malkos for a passive violation? So he holds keeping it on is an action. And Rav Beibo holds you need to take off and put on multiple times to do an act to receive malkos. So the two opinions in the Y. accord with the two opinions in the Bavli…Now we understand that [Rav Beibo] who considers this passive – but only temporarily, not to keep wearing that garment indefinitely. If so, it follows that if you see someone wearing shatnez, since it’s a mitzvah to stop him from doing an aveira, but that is suspended because of k”h, only temporarily.

If so it is clear he must tell the husband that his wife was unfaithful so that he separates from her. The question is, as you asked, must he tell the husband in a situation where the husband may not believe him since he does not have two witnesses? I feel this is no argument [and he still must tell the husband] since he must do what he can to stop the man from sinning [by remaining with his unfaithful wife] even when it’s not certain, he must take care of his responsibility [and tell the husband] for it is no worse than the regular mitzvah of hochei’ach tochiach es amisecha, reproaching your fellow about which the Gemara Shabbos 55a says just because you know [it’s wrong], does he know?

This is instructive in the situation where a “stranger” knows that a certain woman committed adultery. But in this situation this man was the adulterer and he influenced her sin, and he wants to do teshuva he must remove the stumbling block in all ways possible and ensure his fellow won’t sin because of him either (about this see Chagiga 9b that an adulterer's sin continues because he cannot rectify it). Nothing stands in the way of Teshuva but Chazal’s intent was for strict teshuva. Still he must do all he can and if the husband does not believe him, he should hope to attain teshuva and the Master of Mercy (G-d) should accept his teshuva with mercy.

And that which you asked – if he informs the husband and he does not accept it, must he tell a beis din and inform them? It is simple that he only tells the husband. If the husband believes him he will separate from his wife and all is well, and if does not believe it, what good will going to the beis din help? The husband doesn’t have to believe him, and what will beis din do here? Not only is he not required to go to beis din, he may not even be allowed to go to beis din, and if he does he might deserve malkos midirabanan like the incident it Pesachim 113b where Tovia sinned, Zigud testified against him [alone; there was no other witness] and Rav Papa gave lashes to Zigud for allegations against Tovia which could not be proven because there were not two witnesses to Tovia’s act. Even though Rama in S”A C”M 28:1 says only for an incident which already happened would it be considered tale-bearing, but if it is to stop someone from sinning you may testify [which would imply in this case he may go to beis din]. Even if there is a doubt that the beis din will believe him, as the basis of this (the Rama’s) ruling is from Semag Lo Taseh 213: one man may not testify agains a man…we learn from here one man who knows something about his fellow where he cannot impose an oath (in monetary matters one witness may compel an oath) may not testify, and if he does he receives lashes for giving the other person a bad name. And that which we find in Kiddushin (Daf 66a) where one witness told a man his wife had been unfaithful, Mar Shmuel told the man if he believes the account like it was delivered by two witnesses he should divorce her, and Mar Shmuel did not castigate the single witness, and also a similar incident in Perek Hanizakin…[why was one witness believed and not punished]? To stop someone from committing a sin [of remaining with his unfaithful wife] it is different [and one witness may testif]. There, it was not certain that the husband would believe the witness, still Mar Shmuel did not punish him – the man told Mar Shmuel, the Beis Din, and not the husband! (NB shows from the text of the story the man must have told the Dayan, not the husband) Also, Mar Shmuel did not say the man should have told the husband? We can say in that situation the husband was not around, so he told Mar Shmuel, expecting the husband to believe him. But if the witness told the husband about the offense and sees he is not believed, there will be no benefit in telling the beis din, and he will only get lashes for giving someone a bad name.

And that which you were unsure about if he will confess [to the affair] in front of beis din it will give credence (raglayim ledavar) and the beis din will force the man to divorce his wife even though he’s not believed as two witnesses, as the Chavos Yair says in Teshuva 72? Even if the Chavos Yair would pasken this way, which is a matter of discussion, he is discussing a case where the wife admits that she was unfaithful and we say she only said it because she wanted to marry someone else (and by “admitting” to this her husband would have to divorce her) , in that case raglayim ledavar help…. And Yevamos 24b since the matter is disgusting (dirty) she must be divorced, most Rishinim explain that that case is where (the husband returned home to find a traveling salesman leaving and his wife was getting dressed [see the gemara there for exact situations] so he divorced her, if she then went and married that salesman) she must get divorced from the salesman (and the case is where the husband divorced her because of this incident even though he may not have been required to divorce her), and even to the She’iltos that she must get divorced from her husband if there were two witnesses [to the disgusting case, but not witnesses to the znus itself) but here there is only one man confessing and why would we believe his and his confession about the woman?

Therefore the advice is that the adulterer should only tell the woman’s husband privately. The way he should tell according to the Law is just to say your wife committed adultery (and not with whom) for it does not matter to the husband with whom she had adultery because regardless of who it was she is forbidden to him, and why should the adulterer announce his sin for no reason? The Gemara in Yoma 86b says regarding an unknown sin “praised is the one who covers a sin.” And it is also chutzpah to declare his sin. But, logically it seems the husband may believe him more when he sees the man is confessing with remorse and they feel very true, so it’s better to confess privately and if he is humiliated by it good, because if someone was humiliated after his sin he is forgiven. I think he also must ask forgiveness from the husband because this sin has two parts – between man and heaven, for transgressing a serious sin, for which teshuva and Yom Kippur will bring atonement, and the second part is the sin between man to his fellow in that he causes his wife to be forbidden to him. For sins between man and his fellow, teshiva and Yom Kippur doen’t help, and you also must appease the hurt party, for even if one steals and returns the pbject he must appease the victim, certainly here where he cannot rectify the situation (because she will remain forbidden to him forever). (It seem NB is saying while he doesn’t have to admit that he was the guy, the husband will probably figure it out, so the man should ask for forgiveness.)

And with this, by telling the husband and not beis din, he is keeping the honor of the family intact. No harm will come, because the husband is already elderly and he won’t go and marry a new wife [if he would divorce his current wife for being unfaithful] and he is not required to divorce her (because there is not real evidence like two witnesses) and she may stay in his house and we don’t suspect that he will have relations with her, since she was unfaithful, she is repulsive to him. As we see in S”A E”H 117:1 in Rama. Beis Shmuel 8 writes without witnesses he may keep her in his house. You can’t say that is only where she certainly was adulterous wit h2 witnesses, but not here where there is one witness, and she should be like sotah … This case is not like sotah because there we need two witnesses to ensure they are not together (on the way to Beis din after she was found being alone with the other man after her husband warned her; these 2 witnesses make sure the husband & wife aren’t together in yichud because if they are the sotah process won’t work) there, by Sotah, she was forbidden to him according to the din, een though her adultery was not certain, so they need 2 witnesses to ensure they don’t have yichud, but our case we don’t need witnesses to ensure they don’t have yichud because either if the husband believes the man like 2 witnesses she will be disgusting to him and we don’t suspect he will have relations with her. And if he doesn’t believe the man, she is not forbidden to him. So he may keep her in his house and to the Beis Shmuel you don’t even need witnesses [to ensure they don’t have yichud]. But it is simple that they may not have yichud in one room because then it is eish bine’uras (fire of youth). And this way there will be no blight to the family’s honor.

Thursday, September 24, 2009

Noda Biyehuda - Part 3

This is Ri’s opinion, but Rabbeinu Tam says (33a end of s.v. v’afkinu) in such a situation [where the get is being annulled in order to retroactively annul the marriage] we do not say that the kiddushin are uprooted/annulled. If so this case is not like nazir who can ask [a chacham] to annul his vow of nezirus. And to Ri the matter depends on the machlokes Rashi- Tosfos in Brachos.

It seems that the Rama paskens like Tosfos, because a kohen in a house that has corpse in it and he stays and does not leave is considered doing an action (and not passive) because he actively waits in the house, similar to the gemara considering one who does not remove shatnez doing an action, even though he is already wearing it, not removing it is considered an action. See Tosfos Makkos 21b s.v. afilu tha the kohen staying in the house with a corpse is no different than one keeping shatnez on his body and might be worse than keeping shatnez on, and both are considered actions, so how does Rama Y”D 372:1 pasken that an unclothed kohen who is sleeping under the same roof as a corpse, we don’t tell him about the corpse (i.e.. that he must leave) until he gets dressed, but remaining is called an action! And to Rashi even a kohen may not become tamei in a kum v’aseh bcause of k”h! So Rama certainly paskens like Tosfos that Kohen and nazir are allowed to become tamei [for meis mitzvah]; Nazir because his vow can be annulled, and Kohen because it’s not prohibited for everyone. However, Rama really paskens like Rashi because if he held like Tosfos, how can can Rama pasken if they told him [of the corpse] he may not remain there, even if he is unclothed. But Tosfos allows him to become tamei intentionally because of k”h and there is no situation more degrading than running outside unclothed! So Rama must pasken like Rashi, and that which we originally said he’s like Tosfos, we must say he follows his opinion in Siman 303 like Rosh that by shatnez if the wearer is unaware we don’t tell him (or, here the kohen is sleeping, so it’s even more unintention than shogeg – Ed.).

I also feel even to Ri that we can uproot the marriage, we would not be lenient here (our case of the adulteress) like we are in other matters because it is more strict than other prohibitions, and it’s like a chiyuv kareis. Because regular lav does not push off yibum and midioraissa has yibum, only there is a rabbinic gzeira that the first biah is forbidden lest they do a second biah (which is not for a mitzvah) and therefore they do chalitza as we find in Yevamos 20a-b, but an adulteress who is forbidden to her husband exempts her co-wife (tzarah) from chalitza and yibum, and she is like a full ervah (forbidden relationship). Yet regular lavim, they are forbidden to their husband but permitted to their yavam (husband’s brother), so we see this sin is stricter, and if those cases aren’t pushed aside for k”h, neither is this case. Especially that to Rambam he must inform the husband [of the infidelity] just like you see someone wearing shatnez in the marketplace, even though the wearer is unintentional (shogeg), you must remove it from him!

Yet I still have a reason to say to Rambam we should not tell because of k”h. By someone wearing shatnez, many people can see him wearing shatnez and not know he is shogeg, so it’s a big chilul hashem. But here there is no chilul hashem (because nobody knows of the affair) even to do an action we say k”h pushes off an aveira….But I reject this thesis, because Rav Yehuda will consider the aveira chilul hashem, whether many people see (or are aware of) the aveira or not….Even Rosh will agree because in discussing the person wearing shatnez he says the opinion in Yerushalmi that does not require us to remove Shatnez says “k”h pushes off a mitzvah for one hour.” That only allows him to keep the shatnez on until he returns home from the market. But in our case the man will remain married to his wife for a long time, even Rosh will agree the man must inform the husband of her actions…And you might push off this diyuk I made, because perhaps the Rosh is only talking about a case where the person was wearing shatnez is meizid for that hour (when he realizes it’s shatnez until he returns home) but when it is shogeg we allow k”h even for a long time (and here the husband is shogeg). I have two responses to that line of reasoning: One, chazal only let k”h push something off for a short time, not indefinitely....

(to be continued)

Wednesday, September 23, 2009

Noda Biyehuda Part 2

This point is a machlokes between Rosh and Rambam, based on Brachos 19b: Said R. Yehuda in the name of Rav: one who find shatnez in his garment removes it [the garment] even in the marketplace [where there are many people who will see him without his shirt]. They ask from several sugyos that k”h pushes off prohibitions, so it should push off wearing shatnez also? They answer “shev v’al taaseh” [doing nothing to violate the prohibition] is different. We see wearing shatnez is considered an act. (Even though he is not putting on shatnez now, it’s already on him, not removing it is considered an act.)

It’s a machlokes what exactly is the case of this gemara. Rambam’s girsa is “one who finds shatnez in the marketplace” and does not have “finds in his garment.” He understands this is where you see someone else wearing shatnez, you are required to remove it off of him. We see this is shev v’al taaseh in regard to the finder, but because the wearer is an act, the finder must remove it from the wearer. The girsa of the Rosh is where you find shatnez in your own garment. Therefore he paskens in Hilchos Kilayim that if you see someone else wearing shatnez and he is shogeg, the wearer is not considered to be doing a prohibited act, and the finder is just passive (shev v’al taaseh).

Rambam learns his din even when the wearer is beshogeg, as Tur YD 303 brings the Rosh as arguing on Rambam, and in Shulchan Aruch they are brought as two opinions , and the mechaber paskens like Rambam and the Rama paskens like Rosh.

Our case is exactly like that case – the husband will violate by doing an act – being with his wife who is forbidden to him, but he is shogeg, not knowing that she was unfaithful to him. And the one who knows that he is doing an aveira (the current son-in-law) is passive in not telling him. To the Rosh he may remain silent due to kavod mishpacha [being k”h]. To Rambam the son-in-law must inform the husband to stop him from violating a prohibition.

You can say even Rosh will agree here the son-in-law must tell because the husband must divorce his wife to save the wife from a prohibition because she knows she was unfaithful yet she remains married to her husband. But you can push this off because the woman doesn’t know that she’s forbidden to her husband and omer mutar is not worse than shogeg. I can even suggest to the Rambam it’s not certain that he must inform the husband because it depends on machlokes Rashi Tosfos in Brachos there. Rashi s.v. shev v’al taseh says tumah was allowed for nazir and kohen when he comes across a mes mitzvah which he is uprooting [his prohibition against becoming tamei] with an action because of k”h, there is not k”h because he was never prohibited against becoming tamei for a mes mitzvah, just like there is no prohibition for him to become tamei when a close relative dies. Tosfos s.v. Shev argues on Rashi and says it does push off the lav, but Nazir is an exception because he can have his vow of nezirus annulled, and a kohen is an exception because becoming tamei is not a law that applies to everyone (shava lakol; it’s a din that only applies to kohanim). So to Rashi a lav hashava lakol and even if it can be annulled, even as an action is not pushed aside because of k”h, and to Tosfos something that can be annulled or it’s not shava lakol is pushed off because of k”h even by doing an act.

I say that this woman who was unfaithful and became forbidden to her husband is comparable to nazir which can be annulled, because the idea of being annulled means the prohibition can be removed meikara (a priori / retroactively). The husband can do this also based on what Tosfos says in Gittin 33a s.v. v’afkinhu: can a man who is married to his niece (I assume this case was used because it is a case where he will not want his unfaithful wife to be killed-Ed.), and she has committed adultery, send her a get and annul the get after he already sent it to her? The chachamim in this case retroactively annulled their marriage. So can he do this to annul the marriage and make them not married at the time of her infidelity (and hence save her from the death penalty)? Ri says yes, and it will be like nazir. Thus Ri's opinion here is we push off the lav [of remaining with his unfaithful wife] even with a action because of k”h. (Then Noda Biyehuda has a brief discussion that this Tosfos is according to a tana that we don’t pasken like, but he concludes it is like nazir.) (About this sugya – see Rakeffet-Rothkoff, Rabbi Aaron, “Annulment of Marriage Within the Context of Cancellation of the Get “, Tradition, 15:1-2, link: here.)

(to be continued)

Tuesday, September 22, 2009

Noda Biyehuda Kama O”C 35 - Part 1

Noda Biyehuda Kama O”C 35

This is related to the blog in several ways:
1) It discusses an issue if a woman is permitted to stay with her husband after being unfaithful without 2 witnesses;
2) Several issues crop up that are found in Gemara Makos – omer mutar (I hope to discuss that later) and a mishna on Daf 21 about repeatedly violating the same sin, you get punished multiple times; and
3) It discusses a course of Teshuva for a person to follow. Because we are in the Aseres Yemai Teshuva, this issue is inyana diyoma.

I will paraphrase the whole Teshuva (in this context means responsum, not repentance) (normally I translate directly).

Question: a man (who was single) had a relationship with an eishes ish for 3 years. They stopped their affair, and this man married her daughter(!). The man wants to do teshuva (he had already stopped the aveira of eishes ish for a while), and wants to know if he must ask forgiveness from the woman’s husband (his current father-in-law). Also, if he informs the father-in-law, that man will have to separate from his wife, because a woman who committed adultery is forbidden to stay with her husband. Also, if they were to separate it would be a scandal because the family is a well-regarded family. So is it better for him not to tell his father-in-law? Should he instead speak to the beis din? And he wants to do teshuva, so what should he do; he is a weak man who studies a lot of Torah?

The Response:
Must he tell the man whose wife was unfaithful to him to separate him from a prohibition [of staying with his unfaithful wife] where the family name will be tarnished – can we be lenient because of kavod habrios [and not tell] because kavod habrios pushes off a lo taseh? Now, kavod habrios (k”h) only pushes off as lav as shev v’al taaseh (by doing nothing) but an action for the sake of k”h won’t push it off. As far as the baal teshuva is concerned it is shev v’al taaseh, what about for the husband – he will stay with his unfaithful wife by doing a maaseh [of tashmish] but since he doesn’t know about it (the affair) it’s only shogeg? (It seems the questioner wanted to allow this, and now the Noda Biyehuda will discuss it.)

Sunday, September 13, 2009

Selichos: Preparing us for Yom Kippur

In memory of my uncle, בן ציון מאיר בן שמואל ז"ל, whose 55th yahrzeit is on 26 Elul

Wednesday, September 9, 2009

17b - Olah, connection to Viduy

17b Ritva s.v. aderabah. The Gemara implies olah isn't mechaper. But olah is mechaper for asin and lav hanitak l'asei! See Rashi Vayikra 1:4, Rambant here, Baalei Hatosfos there, Yoma 36a and Gilyonei Hashas (by R'Yosef Engel) there, Rabi Akiva's opinion in Toras Kohanim 1 Dibura D'Nadav parshasa 3:8, Tosefta Menachos 10:12, Rambam Maasei Hakorbanos 3:14 (thanks to Torah Shleima 105). The Ritva answers even though olah provides kapara for asei and lav hanitak l'asei, the olah's purpose is not to provide kapara for these things; the pasuk only promises that you will get kaparah for the listed things.

My question is, on Yom Kippur we say in the viduy "v'al chataim she'anu chayavim aleihem olah." But according to the Ritva, we're never chayav to bring an olah? (I don't have an answer.)

Tuesday, September 8, 2009

14b - Wasn't Rabi Yochanan the Rebbe of Reish Lakish?

14b : Gzeirah Shava lo gamar. Rashi says Reish Lakish didn't hear it from his Rebbi, Rabi Yochanan, so he could not learn the gzeira shava.. But Rabi Yochanan was the Rebbi of Reish Lakish! See Bava Metzia 84a.

The book Mareh Hamakom on Makos answers on p. 171 that Tosfos in B"M there, and Yevamos 57a s.v. asa says that Reish Lakish originally learned Torah from Rav Oshia, then he became a bandit, then Rabi Yochanan convinced hm to leave banditry and return to Torah. So Rabi
Yochanan wasn't Reish Lakish's only Rebbi. (To Rashi, who holds holds Reish Lakish was a bandit from his youth and didn't learn Torah until he encountered Rabi Yochanan, I don't know how to answer this question.)

Monday, September 7, 2009

Makos 8b Ritva Amai

8b kusi & eved go to galus and get malkos...Ritva s.v. Amai Kari bei asks that eved and kusi are not oseh maasei amcha...and eved also, even though he is amcha in that he's chayav in mitzvos like a woman, he's not allowed to enter the kahal [marry a ksheira]. The Aruch Laner has some problems with this Ritva, namely, according to this logic you could curse a mamzer or ger mitzri within 3 generations, but such a thing is not permitted! (I have some problems with his answer.)

I think there is a simple explanation. There are two types of people who may not enter the kahal: people who have a psul, like a mamzer, and people, like eved, who lack complete kedushas yisrael. Rav Chaim Brisker in Issurei Biah 13:12 discusses that an eved after his first tvila has to do mitzvos like a woman, but he does not have complete kedushas yisrael until after the second tevila, which happens after he is freed.

The Ritva does not mean anyone who is asur lavo bekahal may be cursed. He means even though eved is achicha in certain mitzvos, because he can't enter the kahal we see he's not fully b'amcha. But a mamzer who has full kedushas yisrael is certainly amcha.

Friday, August 28, 2009

5b Ein Mazhirin min hadin

5b Ein Mazhirin min hadin from Achoso

I was bothered for many years how we learn out ein mazhirin min hadin from ervah of your sister, because that is a chiyuv kares. Then the gemara learns out to ein mazhirin in a makos case from gzeirah shava rasha rasha, but that is equating makos and misas beis din. Why is there no direct limud from misas beis din, and why is kares seemingly equivalent to misas beis din?

For many years I had no answer. Yesterday I saw Rashi, Megilla 7b s.v. af. saying that kareis is like misas beis din. He doesn't explain why. It could be because if someone violating a kareis prohibition was warned for malkus, he's patur from kares, so it is like "misa" from beis din, or because "malkos bemakom misa omedes." Or because of kipa - Sanhedrin 81b - Beis Din can potentially kill someone who's chayav kareis several times.

Thursday, August 27, 2009

Makos 4b Rambam's opinion of E"Z of Ben Grusha as kiyum Kasher Zamam or not

Makos 4b how does Rabi Yehuda know lav she'ein bo maaseh lokin alav? The Gemara learns a meh matzinu from eidim zommemin and motzi shem ra, and the gemara rejects it because ma lehatzad hashava shebaheim shehein knas. The gemara ends up accepting it by saying Rabi Yehuda argues on Rabi Akiva and holds eidim zommemin is not knas. Let's understand this hava amina, and understand what knas is. Furthermore, the first tosfos in Makos has 2 opinions whether there is a kiyum kasher zamama in ben grusha. One answer in Tosfos, and also Rashi in Makos 2b remez, and also in Sanhedrin 10a s.v. remez, is that there is no kasher zamam in ben grusha. Do we know what the Rambam holds about this? Rabi Akiva Eiger, quoted in the Frankel rambam, says that the Rambam agrees with the shita of Rashi, but does not elaborate.

Kiddushin 3b, trying to learn source for kesef kiddushin belong to the father of the ketana tries to learn from ones umefateh, but rejects it because we can't learn mamon from knas. Then the gemara tries to learn from boshes ufegam, but rejects that also because "shani boshes ufegam d'avuha shayach begavayhu." My rebbi, Hagaon HaRav Ahron Halevi Soloveichik zt"l asked, but boshes ufegam are also knas, so why doesn't the gemara answer memona miknassa lo yalfinan? He answered that there are tweo types of knas - complete, pure knas, which is a set amount to pay. There is a second knas which is subjective. Boshes depends on who the person was, how much he or she was embarrased, so it's not a "pure" knas (these are my terms, not his). So mamon can be learned out from Knas of boshes, and the gemara can't answer "memona miknasa lo yalfinan." I think he brought as a rayah the Rambam Chovel uMazik 5:6-7, that modeh biknas patur but modeh about boshes where nobody saw the person got embarrassed, he pays because there is a new boshes when he's modeh in front of beis din.

Now, logically, eidim zommemin should be a knas - at least according to Rabi Akiv - like boshes; not pure knas, because the punishment depends on what the eidim tried to be mechayev. Then the gemara shouldn't have asked "ma lehatzad hashava shebahen she'hein knas" - because eidim zommemin is a knas from which we can learn mamon!

Rashi Makos 4b s.v. gamar explains this gemara as referring to ben grusha when it mentions eidim zommemin. Why ben grusha where there is no kasher zamam? Why not a regular case of kasher zamam? I think the Rambam will agree with Rashi. He holds ben grusha is NOT kasher zamam. Therefore there is a set punishment - 40 malkos - for eidim zommemin of ben grusha, so it is pure knas (even though we usually view knas as money, here it's malkos). Therefore I feel the Rambam holds the makos of ben grusha are not a kiyum of kasher zamam.

Tuesday, August 25, 2009

Makos 4a Kam Lei Bidirabah Mienei - Latzeis Bidei Shamayim

4a Meiri's opinion in Kum Lei Bidirabah Mienei (KLB"M). Tosfos 4a s.v. lokin mentions Bava Metzia 91a hachosem pi parah ladush bah lokeh umeshaleim. ת"ר החוסם את הפרה ודש בה לוקה ומשלם ד' קבין לפרה וג' קבין לחמור והא אינו לוקה ומת ואינו לוקה ומשלם אמר אביי הא מני ר"מ היא דאמר לוקה ומשלם רבא אמר אתנן אסרה תורה ואפילו בא על אמו רב פפא אמר משעת משיכה איחייב לה במזונותיה ומילקא לא לקי עד שעת חסימה
See Rashi in B"M there.

רבא אמר: אתנן אסרה תורה, ואפילו בא על אמו (ונתן לה טלה באתנן - אתנן הוא, ואסור לקרבן). (ד'אתנן' סתמא כתיב (דברים כג,יט), לא שנא אמו ולא שנא פנויה; ואף על גב דאי תבעה ליה בדינא קמן "תן לי אתנני" לא מחייבינן ליה, דהא קם ליה בדרבה מיניה, כי יהביה ניהלה - אתנן הוא; אלמא אפילו במקום מיתה נמי רמו תשלומין עליה! אלא שאין כח לענשו בשתים, אבל ידי שמים לא יצא עד שישלם; דאי לא רמו תשלומין עליה, כי יהביה ניהלה - מי הוה אתנן? מתנה בעלמא הוא דיהיב לה!

וגבי חוסם נמי: תשלומין רמו עליה, אלא שאין כח בבית דין לענשו שתים, וכיון דרמו תשלומין עליה - לא יצא ידי חובתו עד שישלם; אי נמי: אי תפיס לא מפקינן מיניה. כך שמעתי מפי מורי הזקן, ויש דוגמתו בבבא קמא בפרק 'מרובה' (דף ע,ב), ושם מפורש יותר, והביא לי מורי ראיה על זה.) (courtesy of this wonderful site)

Haghos Ashri B"M Chapter 7 says: if you want to fulfill yedei shamayim you must pay, because [while] KLB"M [exempts you, that's only by Beis Din, but] lidei shamayim you are obligated, and if he grabbed the money, he keeps it. Haghos Ashri, Bava Kama chapter 4 says if Ruvein kills Shimon, even though he's put to death, he pays his (probably Shimon's) value to Shimon's heirs, and if they grabbed the money from him we don't take it away from them. Shita Mekubetzes B"K 70a s.v. Esnan brings the Meiri who brings the Chachmei Tzorfatim who say in the case of Esnan the Beis din obligates him to pay Esnan even though they kill him, because KLB"M is for damages, but here he obligated himself with a tnai, he accepted to pay it (even though he will get killed). Shita Mekubetzes B"K 56a s.v. vekasav harav haMeiri brings Gedolei Hadoros that when you are chayav bidinei shamayim to pay, you are pasul to give testimony until you pay it back.

Summary: when KLB"M exempts you, that's only that Beis Din can't obligate you. But really you are obligated to pay this. Meiri says you are even pasul l'eidus until you pay.

Monday, August 24, 2009

Makos 3b-4a mikva

Makos 3b-4a: shloshes lugin mayim... is the girsa "shloshes lugin mayim chaser kortav" or does thee mishna not include the words chaser kortav?

R. Tzvi Hirsch Grodzinsky in Mikve Yisrael, Anaf Chamishi asks: We hold like Rava who is the later shita, and he says that the girsa is chaser kortav, and we pasken like rabanan who are the majority opinion, then we should pasken 3 complete lugin that a kortav of wine fell into them and they look like wine, should invalidate the mikva like the rabanan. Why don't we pasken that way? I think this is also the question of Tosfos Rabi Akiva Eiger, Mikvaos Perek 7, os 12.

Mikve Yisrael answers that we pasken like Rav in Issurim, so whichever way he paskens - whether like Rabanan or Rabi Yochanan ben Nuri, we'd pasken like Rav. Also, Chullin 26a implies Rava paskens like Rabi Yochanan ben Nuri by wine - so we pasken like Rabi Yochanan ben Nuri by wine, and because it is not clear that Rava paskens like Rabi Yochanan ben Nuri by milk, we don't pasken like him, and instead pasken like Chachamim in that case.

Sunday, August 23, 2009

Makos 2b: Kofer

A big yeshiva in Yerushalayim is learning Makos this zman. I'm not, but I'd like to post one post on each daf of Makos in the coming weeks (if I'm able).

Makos 2b: Venasan pidyon nafsho: Dmei nizak. Rabi Yishmael b'no shel Rabi Yochanan ben Brokah omer: Dmei mazik. This machlokes is also found in Bava Kama 27a and 40a. However, see Mechilta to Shemos 21:30 (Mechilta Mishpatim Parsha 10: 109(30): Venasan pidyon nafsho: nafsho shel mumas, divrei Rabi Yishmael. Rabi Akiva omer pidyon nafsho shel meimis.

There are two questions. First, the names of the tanaim are different between the Gemara and the Mechilta: Mechilta uses Rabi Akiva and Rabi Yishmael, but the Gemara uses Rabi Yishmael b'no shel Rabi Yochanan ben Broka, and a tana kama (one Tosefta uses Rabi Yehuda [B"K 4:6 or 7 at the end]). Secondly, the Mechilta changes the opinions of the 2 tanaim (assuming that Rabi Yishmael b'no shel Rabi Yochanan ben Broka is Rabi Yishmael), which leads to a contradiction in the opinion of Rabi Yishmael.

On B"K 6b discussing Meitav, the Gemara mentions a machlokes Rabi Akiva and Rabi Yishmael about meitav sadeihu umeitav karmo, if*bedinizik shaiminan* or *bidimazik shaiminan.* The mechilta uses the names and shitos from this gemara of meitav by kofer because of the same words, even though it's really an argument on a different matter. Why, I do not know, but that's what the mechilta did.

Malbim, Shemos 21:90 corrects the girsa of the mechilta to accord with these Gemaras, but he does not go into any more detail about how the text got garbled.

Monday, August 10, 2009

Parshas Re'eh: Tzedaka, Recession & Welfare

Rabbi Dr. Aaron Levine, Economic Public Policy & Jewish Law (Ktav 1993) writes on pp. 201-204:

...Our purpose here is to demonstrate that in the Torah society full employment and price stability [very low inflation - my comment] are mandated goals for the public sector....

Judaism's charity obligation consists of of both a public and a private component. In talmudic times the public component consisted of a variety of levies for the purpose of attending to the full range of the needs of the poor. Public communal levies were never entirely relied upon to relieve poverty. Evidencing this is the talmudic dictum that if one becomes needy he does not immediately apply for public relief. His relatives and friends must first attend to his needs; only then is the community required to make up the deficiency.

In his analysis of Jewish charity law, R. Hayyim Soloveitchik (Russia, 1853-1918) advances the thesis that society as a collective, apart from its individual members, has a responsibility to relieve poverty. The purpose of the coercive levy, he posits, is not to ensure that the individual members of the community qua individuals discharge their charity obligation, but rather to allow the public sector to carry out its own distinctive social welfare responsibility. The thory that the charity obligation consists both of an individual and collective component is bolstered by by its repitition in the Torah. The charity obligation is set out once at Leviticus 25:35 and again at Deuteronomy 15:7-8. The Leviticus passage refers to society's collective responsibility to relieve poverty, while the Deuteronomy passage speaks of the individual's personal charity obligation....

To be sure, poverty cries out for both an individual and a communal response. But from the standpoint of Judaism's social welfare program, income transfers are not the ideal approach. If the needy individual is capable of engaging in productive labor, offering him a job represents a much-preferred alternative....From the standpoint of the donor, offering a job to someone in a precarious financial situation fulfills the charity obligation on the highest level....From the standpoint fot he recipient, engaging in productive labor is an ennobling experience....

...R. Baruch Epstein (Russia, 1860-1942) finds its message to be that it is improper for man to derive benefit from this world unless he engages in socially useful labor as a quid pro quo for the enjoyment received (Torah Temima, Breishis 2:16). Consonant with this notion is Rav's advice to R. Kahana: "Flay carcasses in the marketplace and earn wages, and do not say, I am a priest and a great man, and it is beneath my dignity."

When the economy finds itself in deep recession, employment opportunities will rapidly shrink. Under these conditions, the private sector's response to the crisis, will, for the most part, consist of income transfers to the needy. Given the collapsing demand for labor, society will not be practicing charity on the highest level, regardless of the ingenuity it utilizes to conceal the charitable intent of the income transfers.

In dealing with the malaise of deep economic recession, a modern government enjoys a distinct advantage over the private sector. By means of expansionary fiscal and monetary policies, a modern government is is capable of vastly increasing the available employment opportunities. Mechanically, the government substantially reduces taxes and / or increases its spending. The resulting deficit is financed by selling bonds to commercial banks or to the general public. Any initial increase in spending will result in a multiple expansion of income....

Recall R. Hayyim Soloveitchik's thesis that society as a collective, apart from its individual members, has a responsibility to relieve poverty. The distinction between what society can accomplish in poverty relief as a collective and what it can accomplish as individuals is highlighted by the technique of deficit finance. Left to its own devices, the free enterprise-oriented economy can do precious little to pull itself out of depression. But what is an impossibility for individuals, even when joined in cooperative effort, can be accomplished by society as a collective. Deficit finance, as the previous discussion has demonstrated, allows the public sector to transform the depression-ridden economy into one of abundant employment opportunities.
I leave that without comment, but with one update: The source of the communal obligation of tzedaka as brought in the article is in Parshas Behar. Prof. Levine's source is what R. Daniel Lander said in the name of the Rav in Kevod Harav. This is also how it is brought by R. Herschel Reichman in Reshimos Shiurim, Shavuos & Nedarim vol. 1, p. 174. This is undoubetedly how the Rav said it in Shiur. However, the Shiurei Rabeinu Chaim Halevi on Bava Basra 8 seems to say it's based on Egla Arufa (see Sotah 38b). (Someone told me about it and I read it 4 times before I saw it there.) I'm not sure if Rav Chaim is saying the source of the communal mitzvah of tzedaka is Egla Arufa (and not Parshas Behar in Vayikra) or, as the Rav must have understood, that Egla Arufa shows us there is a communal mitzvah and its source is in Parshas Behar.