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.

Sunday, August 9, 2009

Parshas Eikev

Quick post, a new application of a small part of a long piece I composed far away and long ago.

10:8 בָּעֵת הַהִוא, הִבְדִּיל יְהוָה אֶת-שֵׁבֶט הַלֵּוִי, לָשֵׂאת, אֶת-אֲרוֹן בְּרִית-יְהוָה--לַעֲמֹד לִפְנֵי יְהוָה לְשָׁרְתוֹ וּלְבָרֵךְ בִּשְׁמוֹ, עַד הַיּוֹם הַזֶּה.
Rashi: To carry the Aron - [referring to] the Leviim. To stand...and bless - [referring to] the Kohanim [who bless the people], and this refers to duchening.

Rambam, Sefer Hamitzvos Aseh 34, says there is a mitzvah for the Kohanim to carry the Aron on their shoulders. He says in the early years Leviim carried it because there were not enough Kohanim to do so, but the mitzvah was really for the Kohanim. He makes no reference to any other vessels of the mishkan. In fact, in Shoresh 3 he does not count the age limitation of the Leviim as a mitzvah because he holds it is not a permanent mitzvah; Ramban there argues vociferously on the Rambam for several reasons. Brisker Rav (al Harambam, second letter in the back) wrote to Rav Yoshe Ber ("Yakiri") about this. He says that Rambam is not talking about the Aron of the mishkan/mikdash at all, but of the "first" Aron that Moshe built before the Mishkan - pasuk 3 of the same Perek - a wooden Aron, and that was the Aron taken to war. This Aron was carried by the Kohanim, and it was not related to the mishkan and was thus not a temporary mitzvah which ended when the Beis Hamikdash was dedicated.

Thus the Rambam will learn this pasuk as talking entirely about the Kohanim, and they are called Leviim because they are indeed part of shevet Levi. In fact, the end of the pasuk says "ad hayom hazeh" to tell us the mitzvah to carry the Aron is a permanent mitzvah (even though the source of the mitzvah to carry the Aron on the shoulders is "bakasef yisa'u).