Avodah Mailing List

Volume 08 : Number 106

Tuesday, February 5 2002

• avel being honored (and attending)at charitable dinner
• Re: Rambam: Hakdama
• Minhagos
• re: chalav hakompanies
• CY/ChC
• Zemer LeShabbos Chanuka/Kholkreisch
• Re: Rambam: Hakdama
• Re: Rambam: Hakdama
• Re: Lower Criticism
• Re: Ma'alas Gerah
• Re: Ma'alas Gerah
• Thoughts on Parashas Yisro
• Source for Minhag?
• Evidence
• Re: Din Torah
• Re: Qinyan Sudor
• ribis
• Anonymous posting of anonymous information is not helpful
• RE: CY/ChC -- Rav Yitzchok Frankel's reply to my query; ChC in E.Y.
• Re: CM and interest
• Re: halakhic methodology - Mayyim Acharonim

Yesodei smachot is quoted as quoting R'MF as allowing this in certain 
situations after shloshim.  Does anyone know the source of this quote or any 
similar sh"ut?

KT
Joel Rich

At 09:37 AM 2/1/02 -0500, RaphaelIsaacs@aol.com wrote:
>The Rambam lists three levels of Rabbinic Legislation: Gezeira, Takana
>and Minhag. He clearly does not mean "Minhag" the way we use the word,
>i.e. Eating Chicken Soup Friday Night. He is refering to a type of
>legislation. How does a "Minhag" differ from a Takana?

What about the Brisker Rav on Hallel on Rosh Chodesh, is that helpful?

Kol Tuv,
YGB
ygb@aishdas.org      http://www.aishdas.org/rygb

For those of you who do not have a Brisker Rav on the Rambam, we must
seriously question your right to remain on Avodah - just kidding! - the
synopsis of the BR (the only piece on Hil. Berachos) on Minhag vs. Takkana
is remarkably parallel to the Brisker take on Shi'abud vs. Kinyan, to wit:

Minhagos are subject to Lo Sasur (Mamrim 1:2), but we do not make berachos
on them nevertheless, as that is part of their "etzem cheftza": "D'lav
toras mitzvos be'hu l'vareich aleihen, d'rak al mitzvos mevorchin, v'lo
al minhagos." He proves this from the Rambam Megilah v'Chanukah 3:7. Both
mitzvos d'rabbonon and minhagos d'rabbonon require Beis Din ha'Gadol
to institute, but they are chalukin as above. Thus, on Yom Tov Sheni,
which is a Toras Minhag, we can make all berachos at the second Seder,
despite the fact that there is no brocho on the Second Day in and of
itself. He brings several ra'ayos to this yesod. Inter alia he cites
his father's well known explanation of why women make Birchas ha'Torah.

Kol Tuv,
YGB
ygb@aishdas.org      http://www.aishdas.org/rygb

RGS, RSBA and RRW were discussing more of the details of ChC, and
essentially agreed that ChC can be muttar only if we assume that CA
prohibition is a purely maakhalot assurot issue, with no gezeirah,
but if it is a gezeirah, then ChC would be assur. RRW then proceeded
to argue that minag America was to onsume ChC, thus it would amount to
the gezeirah not being nispashet, thus ChC is permitted in USA, but not
in Eastern Europe. RGS showed that the hetter is by many early American
poskim, and RSBA showed that CA is a gezeirah, and thus, acc. to above
reasoning, ChC should be assur, period.

RSBA and RRW, I think that you are partly barking up the wrong tree. In
my two posts where I expanded on the issue at length, I argued that CA is
a gezeirah, and the disagreement re: ChC is about what the parameters of
the gezeirah are. It is not an issue of nispashet, RRW, but whether the
gezeirah covered ChC, IOW a case of vadai 'halav parah. Reasonable people
can reasonably disagree on whether ChC is covered by the prohibition,
which is the same solution to the MA question. The AhS held that MA is
a gezeirah that covers even places where there is no MS and therefore
explained Tos. accordingly, but Tos. may not have held so. Tos. may
have held that 'Hazal required MA in areas where MS is used. So too,
'Hazal required additional pikua'h on milk, and did not allow us to
rely on the 'halav tamei is yarok evidence. The question is whether
they required davka a Yisrael roeh, or merely more evidence then would
usually be required in kashrut, because it is so easy not to notice the
presence of 'halav tamei.

Furthermore, RRW, I think that nispashet doesn't apply to the question
of minhag Ashkenaz; it applies only for the period when the gezeirah is
new, such as the period during which 'Hazal realized that the gezeirah
of shemen shel nokhrim was not accepted. However, once a valid gezeirah,
always a valid gezeirah. That said, as we noticed in the discussion of
reading by wax candle light, a gezeirah has a limited scope, and if we
can establish that a particular happenstance is not within that limited
scope, then the gezeirah is not applicable.

The above also takes care of your argument, RSBA. I agree that there is
a gezeirah, but ChC may not be covered by the prohibition. The AhS may
have agreed with you that ChC is CA, but may also not have been talking
about ChC at all, as such notions were not of practical halakhik value
in his days. FDA and the likes are 20th century creations.

OTOH, I must say that the suggestion that CA was never a gezeirah to
begin with but only a kashrut inspection manual, is intriguing. I don't
believe it, but it is definitely worthy of an investigation. I shoudl
hit those books again (not happening soon, I am now learning BbC, or in
my parlance, Bb'H)

Arie Folger

Chevra:

Might I suggest that all positions attributed to Rabbanim be checked before
being posted to the list?

My LOR has a privately published letter from R' Dovid Feinstein answering the
rumour that he (and his family) drinks ChC. He says quite clearly there that
he and his family don't drink it.

As I mentioned some time ago, whilst in NY I heard of a new sefer Bnei
Yehudah on Chanuka which is mainly Divrei Torah 'Mehagaonim l'beis Litch
(Leitch?) Rosenbaum' .

My interest in this was aroused because it also includes a chapter
about the zemer leShabbos Chanuka "Ichlu Mashmanim" which we have been
discussing here for the past 2 Shabbos Chanuka's.

I couldn't find it in any seforim store in NY, so I contacted mishpocho
in Jerusalem who recently sent it to me.

Let me say that virtually all the matters that puzzled us here are asked
by the writer of the essay [a R' Yaakov Shmuel Spiegel] who has probably
researched the zemer as far as possible. But lemaaseh I don't think too
many of our questions are resolved.

He writes that it first appeared in Machzor Saloniki 5315 and later in
other machzorim - nusach Ashkenaz. He writes that the author is unknown,
but because the acrostics are Avrohom many attribute it to the Ibn
Ezra z'l. He doubts it because of the period it was first published
and also dikdukwise is doesn't sound like the IE's material.

As we have previously noted the emphasis on drinking - ie "Beis Hayayin',
is somewhat unsuitable for ShCh and indeed he found that in Siddur
Amsterdam 5402 - this zemer with a few changes - is given for Purim.

[He brings a minhag of the Jews of Cochin [!] that on [SC] they sang a
zemer similar to this in Shul before Oleinu.]

He also lists the various gedolim/rebbes from both earlier and later
times who were pro and con this zemer.

Finally he puts together a peirush of sorts - but we are left with many
unanswered questions. I think there is still work to be done on it.

***

On another subject - Kholkreisch names etc.- this rabbinical
Litch-Rosenbaum family had a very prominent member who was rav of
Kleinverdein [Kisvarda] until 1943. His name was Rav Moshe [hamechuneh
Mozes] Chaim.

The sefer actually includes a photostat of his ksav yad which states
[in LHK only] 'Mozes - mem alef zayin ayin samech - Chaim ben etc etc,
AB'D dK'K etc'.

Not even 'Moshe hamechuneh Mozes' - just Mozes - on his official
letterhead!!!

Over to you Reb Seth...

SBA

RRI wrote:
> The Rambam lists three levels of Rabbinic Legislation: Gezeira, Takana
> and Minhag. He clearly does not mean "Minhag" the way we use the word,
> i.e. Eating Chicken Soup Friday Night. He is refering to a type of
> legislation. How does a "Minhag" differ from a Takana?

Disclaimer: I am at work and cannot consult said Rambam. However, I think
that this minhag is precisely whar RRW has been dealing with lately,
and is the set of instructions by 'Hazal that were not instituted as
either a gezeirah or takkanah, but with the lesser status of this is
how we should do it. OTOH, gezeirah and takkanah are very powerfull
instruments, and indeed, a gezeirah does not fall in oblivion merely
because the underlying reason is no longer valid. A minhag is possibly
different in that once the need for the minhag disappears, the minahag
becames obsolete, too. Another distinction may be if a cetain minhag is
not accepted in a certain locality, whether that is a lack-of-minhag
ta'ut or whether later generation have the authority of rendering the
minhag obsolete.

Comments? BTW, can you give examples of such minhaggim?

Arie Folger

Thank you RYBG and RYZKD.

Follow-up:

The Rambam lists three types of Rabbinic Legislation:

Gezeirah: Legislation whose purpose it is to protect existing Torah Law.

Takanah: New legislation enacted for other purposes (strengthening
Yiddishkeit through other observances)

Minhag: Same as Takana, without a bracha?

Assuming these definitions to be approximately accurate, why a third
type of law whose only difference is that it lacks a bracha? Surely
there must be something different about what a Takana accomplishes,
or strengthens, no?

>Why shouldn't this be obsolved with the Haga'ha Ksubos 19b and S"A Y"D
>271:1 (and see Pischei Tshuvah Ad Heichon Hadvorim Magi'in), also what
>about now that we have computer checking?

I assume you mean YD 279:1 than one cannot keep a Sefer Torah that is not
mugah for more than thirty days. But, according to the Noda BiYehudah, on
the subject of chaseiros and yeseiros every Torah is considered not mugah.

Gil Student

RGS wrote:
> In the context of whether an animal that eats its feces can be honestly
> considered ma'alas gerah, I am trying to understand how the rishonim
> translated the phrase.

But doesn't the Torah itself (Vayikra 11:5-6) count ve-et hashafan
... ve-et ha-arnevet ki ma'aleh gerah hu, ufarsah lo hifrisah, tmeiah
hi lakhem.

Shafan is, I believe, a rabbit, and arnevet a hare, and both are called
ma'aleh gerah, even though they are merely redigesting their level
1 faeces?

Ikh farshtai nisht farvus die draist a kop. It reminds me of the story
of a ba'hur who came to <insert your favorite old time rosh yeshivah's
name here> and gave a long pshetl on why a woman can be a nazirah,
upon which the RY replied, ZGG, but why bother, the passuk states ish
o ishah ki tidor neder nazir laHashem. ;-)

Of course, I may be wrong about my biblical/zoological taxonomy. ...:-(

Arie Folger

In a message dated 2/2/02 9:20:21pm EST, gil_student@hotmail.com writes:
> In the context of whether an animal that eats its feces can be honestly
> considered ma'alas gerah, I am trying to understand how the rishonim
> translated the phrase.

I am enclosing 2 pieces from the Sichas Chulin, one in which he brings
additional explanations to the word Geira, the other one in which he
presents the idea of eating it's feces to answer the Shafan and Arneves
(IMHO all translations especially with the adding of the word "Maalah" to
Geira don't fit with such idea, even though that it fits with external
reasons of why these animals chew their cud). They can be found at
<http://www.aishdas.org/avodah/faxes/sichasChullin.pdf> thanks to RMB.

Kol Tuv,
Yitzchok Zirkind

From: Micha Berger <micha@aishdas.org>
:The qedushah of the mizbei'ach is being given as a model of that of MHS.

Olas tamid ho'asuyah behar Sinai;  see meforshim there.

:Also, in the parashah of mizvei'ach, I found an interesting (to me) remez:

Very nice.  Nu, fier ois!

Gershon
gershon.dubin@juno.com

To date I have been unable to find a source for the (seemingly quite
widespread) minhag of not allowing a child to see their reflection in
a mirror until they have teeth.

Can anyone provide a source?

Thanks!

From: Micha Berger <micha@aishdas.org>
:> This is an investigation of a metzius....
: Which is a pretty good definition of evidence, no?

My understanding of evidence as used in this discussion is some type of
proof which establishes fact, beyond re'iah.

Two sa'aros is a fact, seeing them is eidus. Do you have evidence
(sorry!) of an alternative type of proof beyond the dayanim either
seeing the metzius, which is a subset of eidus (lo tehe shemia etc.) or
actual eidus?

:But shemi'ah = eidus, and re'iyah = looking at the evidence. 

See above.

Gershon
gershon.dubin@juno.com

RJB wrote:
> What's the halachic definition of a modern day check ??

I posted this in the first issue dealing with this din Torah. An Israeli 
cheque is a shtar that obligates the party issueing the cheque to pay. A US 
cheque is easy to cancel, and therefore is no more than a promise to pay, 
which is does not give rise to a debt, and should be considered nothing 
whatsoever, payment pending.

In RCS's case, the cheque is a shtar 'hov, but made out to the wrong party, 
and then paid to the wrong party, so it should have no legal consequences. 
The source for the above was an article by rav Bleich dealing with cheques 
and lo yigosh for shmittah.

Reb Carl, look out for a psharah that requires the defendant to go to the 
bank and ask for records. It may be an opportunity to drag his feet forever, 
so in such a case ask the BD to immediately summon the defendant to come 
again to BD and present evidence of the request as well as all subsequent 
correspondence with the bank with, say, 2 weeks.

Arie Folger

Akiva Miller wrote:
>I honestly don't know. I know that when I ask the rav to sell my
>chometz, doing a kinyan sudar is an important part of my making him my
>shaliach....

See Rambam, Hilchos Mechirah 5:13

Gil Student

Aryeh Folger writes [on Areivim]:
<Not really. A corporation is a shutfut. The only question is whether
the shutafim are the stockholders or that they are glorified lenders
and the directors are the real shutafim.>

In a corporation neither the investors nor the directors are responsible
for debts of the corporation (unless there is fraud). As such it is
very different from a partnership where the partners are responsible
with their personal belongings for any debts of the business.
I don't have my seforim with me but I am pretty sure that both RMF and
RSZA say that a corporation id different than a partnership but that
they differ in the details as how it is different.

<Not true. The heter iska does have legal significance, and it even
showed up both in an Israeli court case and in a NYS court case. See
below for applicability. The practice in Israel is to request to
explicitly include the shatar heter iska for a loan or investment.
Banks comply because they want the fruhm clientele. Once upon a time,
Bank Mizra'hi was the only one to do so, I believe. >

The question is how it showed in court. I believe that in Israel someone
tried to enforce the heter iska and to demand that the bank share in
the loss and the courts threw out that claim.

<As a matter of fact, the court admonished the banks for pushing
inappropriate investements.>

Yes but did the court enforce the heter iska?

The heter iska works both ways when one lends and borrows from the
bank. So demanding the books sometimes works against the bank and
sometimes for the bank.

Moreover, many of the loans from a bank are not for business but for
private purposes like taking a vacation or expanding one's home. Then
there are no books.

More important is that the gemara insists that a heter iska be as far
from profit as from loss. By putting in details that prevent in practice
any loss this principle is violated in spirit if not in law.

-- 
Eli Turkel, turkel@colorado.edu on 02/04/2002

From: "Anonymous Chaveir" <chaveir@aishdas.org>
> Might I suggest that all positions attributed to Rabbanim be checked before
> being posted to the list?

> My LOR has a privately published letter from R' Dovid Feinstein answering the
> rumour that he (and his family) drinks ChC. He says quite clearly there that
> he and his family don't drink it.

While agreeing with the admirable request to posters to verify the
accuracy of positions ascribed to Rabbanim - I find it puzzling why this
had to be posted anonymously and based on information from an anonymous
LOR based upon some private letter supposedly from R' Dovid Feinstein
which Rav Dovid didn't see fit to publish. Furthermore the anonymous
poster does not state what he is trying to accomplish by revealing by
this alleged tidbit. Does he mean:

1) Rav Dovid disagrees with his father 2) Rav Dovid agrees with his
father and refrains because he is a baal nefesh 3) Rav Dovid at one time
drank ChC but because of changing standards no longer does 4) that Rav
Dovid does/did not drink ChC but other children of Reb Moshe did/do.5)
Rav Dovid feels a need to respond to rumours whose purpose is to try to
question his frumkeit etc etc.

In short aside from the misinformation decried by the anonymous poster
which results from inaccurate statements there is also misinformation
resulting from information lacking identifiable sources and/or context. I
think it is important that both types of postings be eliminated.

                                            Daniel Eidensohn

I e-mailed Rav Yitzchok Frankel and asked for a clarification of RMF
and RDF's positions on and use of ChC. In his reply to me, he stated
the following:

Regarding the rumour that RDF uses ChC, he replied that the rumour was
false, and the farthest thing from the truth. As far as R' Frankel knows,
RDF has never had ChC; RMF only had CY in his home; and RDF has told
him many times that when one has a choice one should choose CY. (RYF
did say that as a child the Feinstein children did have ChC.)

RDF does hold that when CY is more expensive one has no obligation to
use CY. When I asked RYF how much more CY would have to cost to relieve
one of the CY obligation, he replied that he had never really asked
that question, but that he would speculate that a clear answer would
be impossible and would be subjective similar to the halachic issue of
hefsed m'ruba.

RYF said that RMF held ChC to be l'chatchila mutar, irrespective of
what many try to claim from the t'shuvos. (As an aside, RYF mentioned
that Harav Nissan Alpert told him that while RNA used only CY products
he was not makpid this stringency for his family.)

RYF had recently poken to both RDF and RRF on this issue and it is clear
to RYF that ChC was l'chatchila permissible.

RYF also said that there would be no difference between milk and chocolate
bars with regards to using ChC.

[Email #2. -mi]

According to my LOR (who worked in Kashrut supervision for many years)
The Israeli Rabbanut doesn't hold by the ChC heter.

What they DO rely on is a heter from R' Frank to use powdered milk which,
at the time of R' Frank, was believed possible only with cow's milk.

Akiva

[Brought over from Areivim. -mi]

RET wrote:
> I understand that todays poskim disagree as to the status of a bank
> (corporation) and how it affects interest for a lender and/or
> borrower.

Not really. A corporation is a shutfut. The only question is whether the
shutafim are the stockholders or that they are glorified lenders and the
directors are the real shutafim.

> Many Israeli banks have a heter iska posted on the wall. I doubt how
> many people have read it (I have not). It would seem to me that a heter
> iska could apply only for a borrower and not a lender (depositor) as the
> bank is certainly not making every depositor a partner in their bank.

Not true. The heter iska does have legal significance, and it even showed up
both in an Israeli court case and in a NYS court case. See below for
applicability. The practice in Israel is to request to explicitly include the
shatar heter iska for a loan or investment. Banks comply because they want
the fruhm clientele. Once upon a time, Bank Mizra'hi was the only one to do
so, I believe.

> In  terms of a borrower it is clear that in real life the bank does not
> share in losses and will not simply rely on the word of the borrower.

No problem. Shtar heter iska is arranged such that the conditions for showing
loss are almost impossible to comply with. Examples are swearing that there
was a loss (which very fruhm Jews will not do) or (in the case of mafia
types) a requirement to open all their books for audit so that the loss can
independently be verified, or that the loss must be witnessed by 2 eidim.
However, there was a case a number of years ago where banks in Israel were
agressively pushing mutual funds, even advising clients to mortgage their
homes. Avreikhim flocked en masse, and invested. They obviously demanded
heter iska, and got it. A little later the market tanked, and the banks
wanted to foreclose on the mortgages. Suddenly the fruhmmies realized that
they had a heter iska, and the banks couldn't claim show me the loss, as it
was on the banks' records. The banks claimed that the heter iska was only
symbolic, and lost. As a matter of fact, the court admonished the banks for
pushing inappropriate investements.

Arie Folger

[Email #2, also from Areivim. -mi]

RET wrote:
> In a corporation neither the investors nor the directors are
> responsible for debts of the corporation (unless there is fraud).
> As such it is very different from a partnership where the partners
> are responsible with their personal belongings for any debts of the
> business.

The distinction is a non starter in halakhah, because limited responsibilty 
for debt does, a priori, exist. f it does exist, then it is a product of 
takkanat 7 tovei ha'ir or dina demalkkhuta. This would mean that the debt 
exists, and is canceled by fiat of the legislator. The question WRT ownership 
of publicly held corporations shows up in ownership of 'hametz as well. You 
see, stockholders only have a theoretical command of the company, and the 
real power is in the hands of management and executive board (except in the 
case of a large shareholder, who would be considered shutaf either way).

> I don't have my seforim with me but I am pretty sure that both RMF
> and RSZA say that a corporation id different than a partnership but
> that they differ in the details as how it is different.

Only as far as saying that a lender should not worry about the fact that some 
shareholders may be Jewish. RMF wants to extend that and states that as long 
as the borrower (NOTE: I may be mistaken and it is the other way around, 
where a corporation may be lender but not borrower) is a corporation, there 
is on ribbit. The reverse, is however not true.

> <Not true. The heter iska does have legal significance, and it even
> showed up both in an Israeli court case and in a NYS court case. See
> below for applicability. The practice in Israel is to request to
> explicitly include the shatar heter iska for a loan or investment.
> Banks comply because they want the fruhm clientele. Once upon a time,
> Bank Mizra'hi was the only one to do so, I believe. >
>
> The question is how it showed in court. I believe that in Israel
> someone tried to enforce the heter iska and to demand that the bank
> share in the loss and the courts threw out that claim.

The heter iska will have legal standing if it was explicitly added on to the 
contract of loan.

> The heter iska works both ways when one lends and borrows from the
> bank. So demanding the books sometimes works against the bank and
> sometimes for the bank.

A heter iska has to be appropriately drafted, and the bank would be advised 
to retain a dayan's or a to'en's services.

> Moreover, many of the loans from a bank are not for business but for
> private purposes like taking a vacation or expanding one's home. Then
> there are no books.

This is a real problem, especially if the loan is to somebody who has no 
business investments. I must have an article somewhere where a posske warned 
against avreikhim borrowing money with HI. Mortgages for buying property (and 
possibly for building ad expanding), however, can easily be structured as a 
lease+purchase agreement and thus escape all ribbit problems.

> More important is that the gemara insists that a heter iska be as far
> from profit as from loss. By putting in details that prevent in
> practice any loss this principle is violated in spirit if not in law.

There are two types of circumventory halakhik vehicles (CHV): those that are 
in the spirit of the law and those that are not. In the first category we can 
put pruzbul, because it enhances the chance that an 'ani will get a loan 
close to shmittah, while the second category encompasses bringing the harvest 
into the graneries through the roof windows in order to exempt the harvest 
from the requirement to tithe. Exempting such the grain from tithes is not in 
the spirit of the law because the Torah wanted us to tithe.

HI belongs to the first categories unless the borrower is a poor man who 
borrows to feed himself, etc. (as opposed to investments) because the Torah 
addressed an agrarian population and in such a population it is only the poor 
man who will borrow. To such a poor man we must lend interest free. OTOH, in 
a money based economy, the one who lends interest free to somebody who 
invests and gains is a shlemiel, and the Torah didn't require us to be 
shlemiels. Since ribbit ketzutzah is gezeirah deMalka, we cannot suspend 
that, but we may circumvent it with CHVs as long as they act within the 
spirit of the Law.

Above analysis is by rav JD Bleich.

Arie Folger
-- 
It is absurd to seek to give an account of the matter to a man 
who cannot himself give an account of anything; for insofar as
he is already like this, such a man is no better than a vegetable.
           -- Book IV of Aristotle's Metaphysics

In a message dated 1/30/02 12:33:50pm EST, afolger@ymail.yu.edu writes:
> I wrote:
>> Comment:  No doubt that is easier and more elegant to say:
>> The Bavli had a Gzeira on melach Sdomis
>> Said Gzeira - while nispahset in Bavel - simply was not nispashet in
>> Ashkenaz and therefore Tosafos is more reporting or documenting that fact
>> as opposed to apologizing {IOW limud zchus}.  Tosafos rationale addresses
>> more WHY it was not nispashet.

> Arie: IOW, according to this rationale there is no need in Ashkenaz to ever
> be ma'hmir on MA, except when hands are dirty, because the gezeirah,
> never having been properly accepted, should not be 'hal outside of the
> mela'h Sdomit confines?

NB: I never said there is NO NEED TO BE MACHMIR in Ashkenaz

What I did say:
The force of Talmudic Gazeira was never "chal" in Ashkenaz because it
was not nispashet there

That does NOT imply that one should never be chosheish for the Talmudic
Gzeira...

Remember the Rambam's Intro to Talmud cited about a month ago does
NOT allow for Gzeiros to be dispensed with - EVEN WHEN BATAIL HATA'AM -
at least accordgin to the footnote cited.

This teirutz is consistent with the Rambam's model - so far any way.

This methodology also explains the inyan of clapping and dancing on
Shabbos. BEH I will post on this too.

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

Remember chevra, one of the core issues that started this was re:
Abrogation of Shulchan Aruch.

If you hold Talmudic criteria as an abolsute, then anytime the SA brings
down a Halacha that either:
1) constrdicts the Talmud (e.g. Mayyim Acharonim)
or is 
2) Moseif on the Talmud

You have grounds to abrogate UNLESS you hold that the Talmud is NOT the
last word on the subject (sof hora''ah)...

And if Tosafos is repealing the gzeira of MA you have grounds to repeal
ANY gazeira that is deemed obsolete!

OTOH if Tosafos is noting that Minhag Ashkenaz was never mekbal the gzeira
then the matter is completely different. There is no repeal at all!
Rather there are gzeiros that simply do no start out IN CERTAIN MEDINOS.

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

Now consider the gzeira of Chalav Akkum

Is there any doubt that this Gzeira was nispashet in Ashkenaz?

So repealing it in Ashkenaz is not shayyach - see AhS YD 115.

OTOH, just perhaps, RMF found a loophole by making America diffrerent!
This is a LOT like what Tsoafos did with clapping on Shabbos/

Regards and Kol Tuv, <A
HREF="RabbiRichWolpoe@aol.com">RabbiRichWolpoe@aol.com</A>

--part1_f3.15ca65a4.2990761e_boundary
Content-Type: text/html; charset="US-ASCII"
Content-Transfer-Encoding: 7bit

<HTML><FONT FACE=arial,helvetica><FONT  SIZE=2>In a message dated 1/30/02 12:33:50 PM Eastern Standard Time, afolger@ymail.yu.edu writes:<BR>
<BR>
<BR>
<BLOCKQUOTE TYPE=CITE style="BORDER-LEFT: #0000ff 2px solid; MARGIN-LEFT: 5px; MARGIN-RIGHT: 0px; PADDING-LEFT: 5px">I wrote:<BR>
&gt; Comment:&nbsp; No doubt that is easier and more elegant to say:<BR>
&gt; The Bavli had a Gzeira on melach Sdomis<BR>
&gt; Said Gzeira - while nispahset in Bavel - simply was not nispashet in<BR>
&gt; Ashkenaz and therefore Tosafos is more reporting or documenting that fact<BR>
&gt; as opposed to apologizing {IOW limud zchus}.&nbsp; Tosafos rationale addresses<BR>
&gt; more WHY it was not nispashet.<BR>
<BR>
Arie: IOW, according to this rationale there is no need in Ashkenaz to ever<BR>
be ma'hmir on MA, except when hands are dirty, because the gezeirah,<BR>
never having been properly accepted, should not be 'hal outside of the<BR>
mela'h Sdomit confines?<BR>
<BR>
Arie Folger<BR>
</BLOCKQUOTE><BR>
<BR>
NB: I never said there is NO NEED TO BE MACHMIR in Ashkenaz<BR>
<BR>
What I did say:<BR>
The force of Talmudic Gazeira was never "chal" in Ashkenaz because it was not nispashet there <BR>
<BR>
That does NOT imply that one should never be chosheish for the Talmudic Gzeira... <BR>
<BR>
Date: Mon, 4 Feb 2002 21:03:22 -0600
Message-Id: <200202050303.g1533MO31881@majordomo1.host4u.net>
To: owner-avodah@aishdas.org
From: owner-avodah@aishdas.org
Subject: BOUNCE avodah@aishdas.org: Approval required:     
Status: RO
Content-Length: 1672
Lines: 38

From domo@aishdas.org Mon Feb  4 21:03:22 2002
Received: from heras.host4u.net (heras.host4u.net [209.150.128.13])
	by majordomo1.host4u.net (8.11.6/8.11.6) with ESMTP id g1533Mx31878
	for <avodah.heras@majordomo1.host4u.net>; Mon, 4 Feb 2002 21:03:22 -0600
Received: from NY01.cm-p.com (ny01.cm-p.com [206.99.202.251])
	by heras.host4u.net (8.11.6/8.11.6) with ESMTP id g1531Ad09628
	for <avodah@aishdas.org>; Mon, 4 Feb 2002 21:01:10 -0600
Received: by NY01.CM-P.COM with Internet Mail Service (5.5.2653.19)
	id <DR188DDP>; Mon, 4 Feb 2002 22:01:11 -0500
Message-ID: <4A9C93D719EDD211AFB30008C7B1F9FF05A39573@NY01.CM-P.COM>
From: "Feldman, Mark" <MFeldman@CM-P.COM>
To: "'avodah@aishdas.org'" <avodah@aishdas.org>
Subject: Re: Din Torah
Date: Mon, 4 Feb 2002 22:01:10 -0500 
MIME-Version: 1.0
X-Mailer: Internet Mail Service (5.5.2653.19)
Content-Type: text/plain

Rabbi Bleich's article about checks is in vol 4 of Contemporary Halachic
Problems.

Kol tuv,
Moshe

*********************


[ Distributed to the Avodah mailing list, digested version.                   ]
[ To post: mail to avodah@aishdas.org                                         ]
[ For back issues: mail "get avodah-digest vXX.nYYY" to majordomo@aishdas.org ]
[ or, the archive can be found at http://www.aishdas.org/avodah/              ]
[ For general requests: mail the word "help" to majordomo@aishdas.org         ]