Hilchos 9 Av - Siman 549

O"C Siman 549

Tzom Harevi'i... Regarding the names of our months (Fourth month vs Tammuz) See Rambam Shemos 12:2 - part of the mitzvah of Hachodesh hazeh is to call the months by names which recall yetzias mitzrayim - first, second, third... month to y"m, the first month. (Note how months differ from Shabbos- days of week - rishon, sheni, shlishi... "to Shabbos," which is the seventh day, and months refer back to the first month, most likely because hachodesh hazeh lachem rosh chadashim - it is the "head" of months, but Shabbos, while it is the reference point for the week, doesn't have to be the first.)
(Re beginning of Ramban "ki she'ar mitzvos shebatorah hayu behar sinai." He seems to hold that Hachodesh was not repeated by Moshe to bnei Yisrael at Har Sinai. The Rambam argues on this - see Perush Hamishna, Chulin Perek 7, that Torah is only that which Moshe taught at Har Sinai, so all mitzvos that were given before Har Sinai were given again at Har Sinai.)
(Re end of Ramban - when Bnei Yisrael returned from Bavel they brought the Persian names of the months with them to fulfill the nevua of Yirmiya 16:15 (also see ibid., 23:8). The Rambam does not count the mitzvah to remember Yetzias Mitzrayim every day (by saying the third Perek of Kriyas Shma). Why not? See Hagaddah Siach Hagrid where the Rav brought three answers from Rav Chaim. R' Isser Zalman Meltzer in Even Ha'Ezel (maybe Kriyas Shma 1:3) answers that the mitzvah changes when Mashiach comes, because we will mention the miracles Hashem brought when Mashiach comes which will dwarf the miracles of yetzias mitzrayim. Because the mitzvah will not remain the same after Mashiach comes, it cannot be counted in sefer hamitzvos, because the Rambam only counts mitzvos that are for all time. Now the psukim in Perek 16 and 23 are almost the same, but it seems the Ramban uses [the] one [from Perek 16] to learn there was some commemoration of B"Y leaving galus Bavel, and Rav Isser Zalman uses it [or the one from Perek 23] that while it mentions return from the northern exile, which implies Bavel, really refers to Mashiach.)

Fast of the fourth month. The fast could have been any day within the months of the Pasuk (in Zecharia 8:19), but the dates of the fasts were set. If the fast could have been any day in the month, what if a boy became Bar-Mitzvah during the month, before the fast day (like on the 15th of Tammuz)? The chiyuv of the fast began when the boy was a katan? If that's too extreme to fathom, what about a boy whose bar-mitzvah is on 18 Tammuz in a year when the fast of Tammuz fell on Shabbos and was pushed off to Sunday, the 18th of Tammuz? If the chiyuv to fast is on the 17th, the boy wasn't chayav yet. We pasken that the 13-year old is obligated to fast, but this is something to think about.

Fast of the fourth month. See Rosh Hashana 18b, and Tur & B"Y Siman 550. If there is peace, they fast. Many Rishonim - Tur, Rabbeinu Chananel, many others say peace means the Beis Hamikdash is built. This means in the time of the second Beis Hamikdash, they did not fast, even though the first Beis Hamikdash was destroyed on 9 Av. Rambam (Perush Hamishna R"H 1:3) says in time of the Second Beis Hamikdash they did fast (because they decided to, but they had the right to decide not to fast). I feel we can make a diyuk in the Mishna like the Rambam: it lists 6 months the messengers went out - including Av. The end of the Mishna says in the time of the Mikdash, they'd send out a messenger in another month, Iyar. But the Mishna does not say no messenger was sent for Av. So the fast of 9 Av was observed during the second Beis Hamikdash.

Huchpelu bo tzaros. Tosfos (R"H 18b s.v. Ho'il) asks why is 17 Tammuz different than 9 Av, that on 9 Av we must fast even if there is Shalom but no Gzeiros, but we can choose if we want to fast on 17 Tammuz, but if many bad things happened also on 17 Tammuz we should have to fast? See the two answers of Tosfos. I think the Rambam understands Huchpelu bo tzaros to be discussing the time of the second Beis Hamikdash, 9 Av was already huchpelu - the gzeira in the midbar and the first destruction.

Names in Gittin - Yisachar & Av

This post is slightly off topic, but it is an important issue and is interesting.

The proper spelling of names is critical to the kashrus of a get. If someone has a name which is found in the Torah, the name must be spelled as it is found in the Torah. Sefer Get Mesudar Shaar 7, Siman 15, Se'if 11 discusses how to spell Yisachar.

(We pronounce the name spelled Yud-Shin-Shin-Kaf-Reish as Yisachar, even though it is spelled as Yisaschar. In Breishis 46:13 Yisachar has a son named Yov, and in Bamidbar 26:24 his name is changed to Yashuv. There is a midrash quoted by Daas Zekanim on Breishis 30:18, that when Yissachar found out there is an avodah zarah called Ov (which apparently is the same as Yov), Yisaschar gave his son one of the shin's from his own name, changing Yov to Yashuv and Yisaschar to Yisachar. Because of this midrash, in Volozhin they read Yisaschar until Parshas Pinchas, when Yov's name is given as Yashuv. See Nefesh Harav p. 308.)

Get Mesudar says if someone is called to the Torah and signs his name as Yisachar, we write Yisachar (only one Shin) in a get. However, many people sign there names with 2 shins. The Pesher Davar on that sefer says in that case, where he's called to the Torah with one shin but signs his name with two shins, we write in the get "Yisaschar dimiskirei Yisachar." I do not know how mesadrei Gitin write Yisachar in a get.

Similarly, two years ago the chazan in our shul when we benched Rosh Chodesh Av just said "Av." Our Chazan for the Yamim Noraim was very upset and told me "He should have said Menachem Av." I showed him the Aruch Hashulchan in Hilchos Gitin, Even Haezer 126:16: Av - we don't write Menachem Av because our custom to call it such in our correspondences and when we bless the month is only as a consolation that we should merit, iy"h bb"a but its name is only Av. So we find in the beginning of maseches Rosh Hashana. If he wrote [in the get] Menachem alone (and not Menachem Av) there is an opinion that is it is Kosher bidieved since it is well known that Av is called Menachem. I have my doubts about this because true, in books and approbations by Sefardic sages they are accustomed thus [to call it Menachem] we [Ashkenazim] do not have that custom. Some write to write both [Menachem Av] and I certainly agree if it was written this way it's Kosher bidieved since this how we bless the month in our countries and what we write in letters.

Below is a reproduction of a get, from Psak Hadin beinyan He'ach veha'achot by Chief Rabbi Shlomo Goren (Jerusalem, Tevet 5733). The left and right sides are cut off in the book.

79b - clinging Part 2: DNA in Halacha

Sefer Hachasidim Chapter 232 - "There was an incident with the sage R. Saadia ben Yosef the sage, with one who went to a faraway country with his servant with a lot of money, and his wife was pregnant, after a while he died and left all the money [to his son] and the servant seized his assets and claimed to be the late man's son. When the son grew up, he heard that his father died, he went to claim his property which the servant had seized (and the servant had married into an influential family) and the son was afraid to make his claim lest they kill himand he visited Rav Saadia's house and was given food to eat but he refused to eat until he laid out this situation. Rav Saadia gave him advice to tell the king and he did. The king sent Rav Saadia to judge this case. He commanded to take this man's blood into one container, and and the other man's blood into another container, and they took a bone [from the dead man] and stuck it into the container with the servant's blood, and the blood was not absorbed [in the bone] and they took the bone and stuck it into the container with the son's blood and the blood was absorbed in the bone because they were "one body" and Rav Saadia took the money and gave it to the son."

Rashash, Bava Basra 58a explains the incident of R. Bnah (see previous post) using this Sefer Hachasidim. R' Bnah didn't have them beat the grave, but do this "blood test." Rashash uses this explanation to answer Eliyahu Rabah, Orach Chaim 568:15. He also points out that with this discreet method, R. Bnah ensured people did not realize that the other sons in this case were mamzeirim.

Rav S.Y. Zevin in Le'or HaHalakha (Tel Aviv: Abraham Zioni, 1957, p. 195) says that this is the basis for genetic testing in Halakha.

The method used was obviously very crude, as it was at least 1000 years ago. Our DNA tests are very different. The main idea to take from this Sefer Hachasidim is that there is a method to establish paternity that is not based on testimony of witnesses. (DNA might also be used to determine the indentity of burn victims or other corpses where other methods of identification - including fingerprints and dental records, though there is also discussions whether those are halachikly acceptible means of identification - may not be available.) One could combine the Meiri and Rashash and say that only extremely wise sages can use this method, but I think that is unlikely.

The Sefer Hachasidim arranged by R. Shimon Gutman (Jerusalem: Otzar Haposkim, 2007) mentions that R. Shlomo Zalman Auerbach zt"l did not accept genetic testing to determine paternity/maternity from 2 sources: Mishnas Avraham E"H p.30 (Lev Avraham Volume 2 page 17) and the journal Assia 35 (Shevat 5743/January 1983) p. 52. I have heard from reliable sources that R. Yosef Sholom Elyashiv Shlit"a also does not accept genetic testing as acceptible proof.

See, however, Hilchos Aveilus, Madrich Mefurat (Third edition) by Yitzchak Ushinksky (Jerusalem: Otzar Haposkim, 2005) siman 12 and 13 about the use of DNA evidence, and he mentions rulings by R. S. Wozner and R. Z.N. Goldberg (see Tchumin 23) who discusses using DNA evidence for various determinations. (These 2 simanim were also published in Kulmus, Mishpacha Magazine Shevat 5764 and Tchumin 24, respectively.) I happened to notice last week that R. Chaim Regensberg in Mishmeres Chaim (Jerusalem: Chicago Rabbinical Council, 1966) says that when fingerprints and blood tests are unequivocal, they are accepted by Beis Din.

79b - Chazakah that these children "belong" to these parents (Part 1)

79b - When the children cling to the mother, that is halachikly valid evidence that they are the children of the mother. We know Shlomo Hamelech determined who was the mother of the baby in a case where the child was a baby, and too young to be clinging to its mother. Are there applications from Shlomo Hamelech's case we can use? Also, can we use DNA tests to determine paternity and maternity?

In Bava Batra, 58a the Talmud relates certain rules relating to the actions of a dayan. “A certain man was reputed (muchzak) to have many sons and was informed just before his death that only one of those sons were his and he left all his property to that son, and R. Bnah told all of the sons to beat the grave until the corpse was uncovered and they all went, but one did not go and R. Bnah declared he was the son.” The Meiri explains the Gemara in a surprising manner: “Similarly an experienced (muflag) judge must sometimes decide according to umdena (approximate estimation, from the word moded, to measure [based on Jastrow]) according to the path whereby Solomon sometimes judged, as is well known with the two women who came before him...these matters and similar situations are only given to a wise king or a sage of exceptional wisdom and pilpul and sharpness much greater than all the other sages of his generation in all types of knowledge.” That is, R' Bnah had no firm proof that this was the son, but he felt the real son could not psychologically beat and uncover his own father's grave, and this test was only an umdenah, not a firm proof, but he ruled according to the results of this test. (This idea of the Meiri is also cited in BY C”M 15 in the name of Rosh, Teshuvot 107:6 and is also mentioned by Rambam, Hil. Sanhedrin 24:1).

Meiri clearly states that when the two parties have competing claims that would not cancel each other or if a reliable claim was made without dispute, but the implications thereof are nearly impossible to determine, the dayan can use his cleverness and cunning to decide which party’s claims are valid, (or the implications of the undisputed reliable claim). This was the manner by which King Solomon determined which of the two women was the mother of the live child. This decision was also called ruach hakodesh by the Talmud (Makos 23b). So "a sage of exceptional wisdom and pilpul and sharpness much greater than all the other sages of his generation in all types of knowledge” was able to judge based on his great knowledge of all aspects of human life and behavior, but we may not. So Shlomo Hamelech's ruling is not applicable to us.

66b "Cut" Vav (Parshas Pinchas)

66b "Cut" Vav

The letter vav in the word Shalom at the beginning of Parshas Pinchas (25:12) is ketia (cut). What exactly does a cut vav look like?

Some say it is a short vav, and the bottom is cut off, but we must make it longer than a yud (Minchas Shai Bamidbar 25:12). Others say it is a full-length vav, but the leg of the vav is not continuous - the bottom of the vav is cut off from the rest of the vav (Ritva here). Some say it is a regular vav but written small (like the small aleph in Vayikra 1:1) (Meiri Kiryas Sefer 2:1 under "vehaktanos"). Some say it is written like a yud (Baal Haturim 25:12, Maharsha Kiddushin Chiddushei Aggados 66a s.v. Vav). These shitos are brought in Encyclopedia Talmudis "Vav" part 2.

Rambam and Shulchan Aruch do not mention this law, likely because if the vav was written regularly we would not change it.

See Shut R' Akiva Eiger 75 and Mossad Harav Kook Ritva Kiddushin 65b footnote 669.

This image shows a short vav and two ways of having a cut in the middle of the vav. From Encyclopedia Talmudis.