Avodah Mailing List

Volume 04 : Number 401

Tuesday, February 29 2000

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Subjects Discussed In This Issue:
Date: Tue, 29 Feb 2000 08:17:54 EST
From: Joelirich@aol.com
Re: Study of History

In a message dated 2/29/00 7:28:57 AM Eastern Standard Time, 
Chana/Heather@luntz.demon.co.uk writes:

 And there are other aspects of the absolutest flag waiving about loshen
 hora that make me worry. >>
Where I come from this is called throwing out the baby with the bath water.

Halacha seems to recognize a category of  necshad (vyatza alav kol) that has 
nafka minot lhalacha. Does anyone know of sources where the source of the kol 
is defined(ie is it only a case where the original speaker actually was 1000% 
convinced that the individual had done the deed and there were no extenuating 
circumstances and went to a bet  din/rav to determine that he could speak of 
this since he saw a toelet.  If not do we have here a case where the original 
speaker acted kneged halacha and yet we act upon it anyway?)

Go to top.

Date: Tue, 29 Feb 2000 15:16:15 +0200
From: "Carl M. Sherer" <cmsherer@ssgslaw.co.il>
Re: Study of History

Lest you all think I produced this so quickly, Chana and I actually 
exchanged emails this morning on this subject, which were 
mistakenly not posted to the list. Since she has now posted hers 
from last night, I thought I would post my response from this 

------- Forwarded message follows -------
From:           	"Carl and Adina Sherer" <sherer@actcom.co.il>
To:             	"Carl M. Sherer" <cmsherer@ssgslaw.co.il>
Date sent:      	Tue, 29 Feb 2000 15:07:45 +0200
Subject:        	(Fwd) Re: Study of History
Send reply to:  	sherer@actcom.co.il
Priority:       	normal

------- Forwarded message follows -------
From:           	Carl and Adina Sherer <sherer@actcom.co.il>
To:             	Chana/Heather Luntz <Chana/Heather@luntz.demon.co.uk>
Subject:        	Re: Study of History
Send reply to:  	sherer@actcom.co.il
Date sent:      	Tue, 29 Feb 2000 08:15:59 +0200

On 28 Feb 00, at 23:01, Chana/Heather Luntz wrote:

> >Alternatively, Sara said what she did only to herself and not to 
> >someone else (after all, it says "VaTizchak Sara B'KIRBA laimor"). 
> >Therefore what SARA did was NOT Lashon Hara. Hashem wanted 
> >to reproach Avraham about it nevertheless (because He regarded it 
> >as a pegiya in His Kavod, as if R"L it could not have been done). 
> >But he did so by changing the lashon in order to teach us that one 
> >may change lashon because of darchei shalom.  
> >
> Yes but.  The essence of loshen hora is that you say something that may
> be true but is a gnai on the person about whom you are speaking.  Is it
> not a gnai to say that Sara Imenu was lacking in the kavod she showed
> for HaShem?  And, as you mention there are a lot of other cases about
> which we can ask the same question.

I don't think she said it - she might have thought it (if that). 
Controlling thoughts is even more difficult than controlling speech. 
Is it a gnai? Maybe, but I don't think we are quite on the level of 
HKB"H in deciding what is toeles and what is not. Obviously, 
HKB"H decided that there is a toeles in us knowing about this.

> Agreed.  The question is, are you allowed to say something about someone
> (leaving aside Esav and such, who are not part of amcha) that amounts to
> loshen hora even if your purpose is mussar haskel?

WE may or may not be able to, but Hashem always can. Two 
small examples that show how little we understand of what is 
written in Tanach. Think about the Gemara in Sanhedrin about 
Menashe. Anyone who has ever learned Melachim will tell you that 
Menashe was a rasha. So what is that Gemara telling us? I think 
what it's telling us is that we are beneath deciding whethere there 
is a toeles in telling us maasim of ishei ha'Tanach, and we have to 
assume the toeles was there and then find it. To take a much later 
example, in the hakdama to the most recent chelek of the Igros 
Moshe (the one published a few years ago by the Mishpacha) there 
is an amazing story of someone who spoke lashon hara on the 
Bnos Lot, whose treatment in Breishis and subsequently was not 
exactly sympathetic. I don't think we are on a level of drawing too 
many inferences into why this is written down but that is not.

> >Actually, no. The Chafetz Chaim makes quite clear that Miriam 
> >spoke only to herself. See the Sifri brought in Shmiras HaLashon, 
> >Shaar HaZchira Perek 5. Had Hashem not punished her so openly, 
> >Bnei Yisrael would never have known about it.
> Well, that rather makes the question stronger.  Why was it necessary for
> Hashem to punish her so publically?

See above. I don't think that's a question that we can answer.

> > And the Torah does 
> >cover up what she said. "Al odos haIsha haKushis asher lakach" 
> >isn't exactly an explicit statement....
> >
> I wasn't so much thinking about what exactly she said, but that she said
> *loshen hora*.  Telling someone that somebody else said loshen hora is
> in itself loshen hora, even if you do not say what it is that the person
> said.

Yes, it is.

> >Here again, I think the answer here is toeles. If there was ever a 
> >case that someone was going to speak Lashon Hara about 
> >someone else with no sense of wrongdoing whatsoever, this was it. 
> >The Medrash tells us that Miriam's kavana was pure - only for the 
> >sake of pirya v'rivya. She spoke only to herself. She knew what she 
> >knew only because she heard Tzipora being meysiach l'fi tuma. 
> >She said what she said about her brother whom she loved and 
> >respected and would never have harmed. Miriam was a tzadekes. 
> >Moshe was a tzadik and was not at all angry with her ("Keil na refa 
> >na la" - it didn't take anything to get him to daven for her. No 
> >hakpada). And yet the Torah is still telling us no, that's still Lashon 
> >Hara. What statement of halacha could have as powerful an effect 
> >as that?
> So, you seem to be saying - that if using real names and telling it as
> it really was will have a more powerful effect than merely stating the
> halacha, or providing some form of fiction, then that is sufficient
> toeles.

I'm saying that in the case of things mentioned in the Torah and in 
the Neviim, we are not on the level to decide that, and we have to 
assume that the toeles is there, and maybe we can speculate on 
what the toeles was in order to make sure we learn the proper 

> >To me at least, there is a chiluk to be made between the Avos and 
> >Moshe Rabbeinu and his family, on the one hand, and the Gdolim 
> >of later generations on the other hand. I think that chiluk is why it's 
> >"okay" for the Torah to tell us about the failings of the Avos while 
> >it's still not "okay" to talk about the failings of Gadol X, even if 
> >Gadol x is after 120.
> >
> >Let's go through some of the parsheyos in the Torah that would be 
> >kaveyachol regarded as the "wrong" thing to do in today's society. 
> >Does any of us think any "less" of Yaakov Avinu because of the 
> >way in which he received the bchora? Does any of us think any 
> >"less" of Yehuda because of Maaseh Tamar? Of Yosef because he 
> >let things get to the point that they did with Aishes Potiphar 
> >because (according to the Medrash) he equivocated in declining 
> >her advances? Of Moshe Rabbeinu because he continued to 
> >decline his shlichus even though it was quite clear that he had 
> >gone beyond the point of mere modesty (not to mention mesarvin 
> >le'katan v'ain mesarvin le'gadol)? Of David HaMelech because of 
> >Maaseh Bas Sheva? Of course not! Part of that is because we are 
> >melamed zchus on them - this is the way Hashem decreed that 
> >they would behave and so on. 
> >
> But we are also required to be melamed zchus on everybody, eg a Gadol,
> an ordinary yid etc.  

Yes, we are. But there's also a difference between Hashem (or a 
Navi) deciding that something should be exposed and us deciding 
that something should be exposed.

> >But there's also an element of distance in time. And there's also 
> >the concept that the Avos are so far beyond all of us, that there is 
> >nothing about them that could convince us that they are any less 
> >tzadikim than we already think they are. 
> I'm not sure you are right here - in the sense that, while that may be
> true for many people, that is clearly not true for:
> a) non Jews (read some of their writings on the subject);
> b) non religious Jews (read some of their writings on the subject;
> and, I think you would not have any difficulty in finding c) Orthodox
> Jews as well (can you honestly say you cannot think of at least one post
> on Avodah which seemed to suggest that the poster thought less of the
> Avos because of certain of their actions described in the Chumash).

I have to think about a post on Avodah :-) But again, those types of 
decisions (what to include in the Torah and what not to include) 
were made by Someone who is beyond our comprehension. You 
allude to that yourself when you mention Rabbi Akiva below (I 
assume you were alluding to the Gemara about the Mekoshesh).

> Besides which, you would seem to be saying that if nobody is going to
> think worse of a person, you can say loshen hora (which would seem to
> imply you can say loshen hora to a tzaddik, because you know they will
> always be melamed zchus).  Maybe that is right, but it is an addition
> that I have not often heard cited.

See Clal 4 S'if 5 in the Chafetz Chaim.

> >But if Ploni goes and publicizes that Gadol x had a child out of 
> >wedlock 50 or 100 years ago, who has decided that is a toeles? 
> >With Miriam, Hashem decided there was a toeles for us to be told - 
> >who decided that with respect to Gadol x? 
> True.  But you could say the same thing about lying and shalom bayis.
> In the case of Avraham and Sara, Hashem decided it was appropriate to
> lie for the sake of shalom bayis, but who are we to ever make that
> decision.  On the other hand, if we are never to make that assessment,
> then there is no toeles in telling us the story.  

You're mixing two things here. On the one hand, there is the 
question of what the toeles was in telling us the story of Sara 
thinking what she did in the first place, and I think the answer is so 
that we get the mussar haskel that it is okay to shade the truth in 
order to preserve shalom. And then there is the second issue of 
when it is okay to lie to preserve shalom bayis, and I think that 
since we know that it IS sometimes okay to lie (or shade the truth), 
if we are honest with ourselves and are melamed zchus whenever 
possible, we will usually do the right thing.

That does not mean
> that we should *always* lie just because we think that there may be a
> shalom bayis legitimacy (I mean, arguably what Potipher's wife says to
> him about Yosef is a preservation of shalom bayis by lying) - all it
> teaches us is that we have to understand that some situations are like
> Avraham and Sara, and some like Potipher and his wife (and we may have
> to make judgments based on this understanding).

I don't think we were meant to learn from how Aishes Potiphar 
behaved with her husband! I think she could have said nothing to 
her husband or the servants, and no one would have been the wiser 
(surely she could have disposed of Yosef's coat instead of keeping 
it until her husband arrived home). I think we are meant to learn 
from Yosef's behavior (particularly in light of the Medrash) that ain 
aputropus l'arayos.

> Likewise there are clearly cases where HaShem decided that it *would* be
> impermissible to tell over names or identities or stories (that was the
> essence of the reproach to Rabbi Akiva) and there are cases where he
> decided that it would not.  Surely learning mussar from the actions of
> HaShem would including learning mussar in relation to this issue as well
> (both when to reveal and when not to).

I agree. I think the whole issue with Rabbi Akiva there is why 
Hashem chose not to tell the story with names. I think the answer 
is that it was not necessary to the story. But what the Gemara is 
telling us is (IMHO) that once Hashem decided that the story did 
not need to name names, even the great Rabbi Akiva could not 
decide otherwise.

> >With Miriam, we are not 
> >going to think any less of her, because we know (and are told very 
> >clearly in the Medrash) her aveira was b'shogeg and with only the 
> >best of intentions. Can we say the same about this hypothetical 
> >story about Gadol x? Of course not! And if the offspring of that 
> >union are still known, people will whisper in the streets, "that's 
> >Gadol x's granchild; his/her father was born out of wedlock." What 
> >does that do to Gadol x's image?
> >
> I agree with you in your case (assuming that the child was just born out
> of wedlock, and was not a mamzer, in which case there is a clear toeles
> or a host of other circumstances that might well give rise to toeles).


> However,  judgments need to be made (all the time) as to what falls
> within the category of loshen hora, and what does not, and if it is
> loshen hora, what is a sufficient toeles and what is not.  When the
> discussion about what is not permissible is framed in such absolutist
> terms that it automatically puts HaShem on the wrong side of the line,
> it makes me worry.  

I assume Hashem is always on the RIGHT side of the line, but that 
we have to be careful that we understand why. If I sound like I am 
framing these things in absolutist terms, it is partly an attempt at 
self-control (as I told someone last night). I think that if we assume 
that we cannot say something and then try to find a heter to say 
them (rather than the reverse), we will all do a lot better at 
controlling our speech. 

> And there are other aspects of the absolutest flag waiving about loshen
> hora that make me worry.  I think I am particularly worried about the
> cases where people are so scared of not violating the laws of loshen
> hora, that they are over on the issur of losamod al dam re'echa (into
> which the abuse cases we have had described fall - see the  Sanhedrin
> 73a).  

Again, I agree with you. But I think that if we start with the 
assumption that we have to justify each time we speak about 
someone by name, and then go ahead and justify it al pi halacha, 
that we will be better people in the long run.

And while the Chofetz Chaim would no doubt be horrified by the
> use to which his book is put, there is unquestionably a certain tendency
> today, for those with real harmful dangerous averahs to hide to use the
> cloak of loshen hora to avoid their averahs being shown the harsh light
> of day (and so ensuring that they will have further victims).  

You're right. He himself says in many places that he fears that 
people will misuse the sefer. The Chafetz Chaim had a brilliant 
understanding of human nature that is reflected throughout the 

If people
> had a better understanding of the more complicated nuances and a sense
> of balancing loshen hora with toeles, I do not believe this use would be
> possible.

See the Hakdama to the Chafetz Chaim starting from "v'achshava 
la'daas zos" (the fourth day of the cycle if you have one with the 
daily cycle written in). The Chafetz Chaim clearly felt that balance 
has to be made, and that you can't just say, "everything is assur." 

> >Soif davar, IMHO it is impossible to try to make a hekesh to permit 
> >hearing maaseilach about Gdolim from the fact that the Torah tells 
> >over things that, to our minds, appear to be Lashon Hara. 
> >
> But you yourself have drawn a distinction, by arguing a case in which,
> on the face of it, it is hard to see any toeles which by implication
> would seem to suggest if there was toeles like the cases in Chumash,
> then maybe it would be appropriate.
> So lets search for such a case:
> - how about we make a case where Gadol X held that anybody who had a
> child out of wedlock was not fit to posken shialas, regardless of what
> level of teshuva he may have done later.  Would you still say there was
> no toeles to reveal that Gadol X had himself had a child out of wedlock,
> and therefore, by his own ruling, disqualified himself from rendering
> psak such as the one about people who have children out of wedlock
> rendering psak?

You posit an extreme case. But assuming that it could be proven 
that Gadol X had a child out of wedlock, I think this would fall within 
"mefarsemim es ha'chanofim" and would be mutar. 

> Obviously there are clear cut toeles cases, and cases that are not so
> clear cut.  The cases in Chumash are not so clear cut.  For all your
> explanations, you have to dig to justify them, and even more to justify
> them in the form in which they are expressed (rather than some other
> form, such as a direct command or a no names story, which while it might
> not have the same impact, could achieve almost the same result without
> the need for loshen hora).

Yes, but since Hashem chose to express them, I start with the 
assumption that there was a toeles. That is an assumption I 
cannot make im yeridas ha'doros.

> And it doesn't seem so clear to me that the same cannot be applied to
> more recent Gadolim.  Unlike HaShem, our judgement is not infallible,

Exactly my point.

> but it does seem a legitimate argument to claim that we are called upon
> to make similar judgements, and that we have to follow in the path of
> HaShem in weighing the toeles against the loshen hora (and if we take
> the "safe" path of not speaking, we may not actually be safe at all -
> after all, maybe somebody would be so inspired by the extent to which
> the Gadol was able to do teshuva that they themselves did teshuva, which
> they would never have done had they not known.  How do you weigh that
> person's teshuva against the gnai in the eyes of others- assuming you
> can only reach that person by also speaking in front of the others?).  

I'm not sure that speaking to an amorphous clal because 
SOMEONE may be inspired is mutar. See Chafetz Chaim Clal 10 
S'if 2 and 14, the sixth and seventh pratim.

> legitimate critique of any particular such judgement may be, where is
> the toeles?, and you may well disagree with the correctness of the
> assessment in any particular case.   But then you are arguing over
> whether *this* toeles justifies *this* loshen hora (ie is it closer to
> the cases expressed in the Torah, or the cases that were deliberately
> left out), which strikes me as a much more nuanced form of debate.

I don't have a problem weighing a specific toeles against a specific 
lashon hara. But I think you have to do that based on the halachos 
that the Chafetz Chaim derives in Clal 10 (and in Hilchos Rechilus 
Clal 9). Clearly there is a nuance here. But it is a much stricter 
nuance than is commonly accepted among us today.

I notice that you took this off the list - I don't know whether or not 
that was intentional. Please feel free to put it back on the list.

-- Carl

------- End of forwarded message -------
Please daven and learn for a Refuah Shleima for our son,
Baruch Yosef ben Adina Batya among the sick of Israel.  
Thank you very much.

Carl and Adina Sherer

------- End of forwarded message -------

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Date: Tue, 29 Feb 2000 07:51:35 -0600
From: Micha Berger <micha@aishdas.org>
Re: Facing the Truths of History

May I please take this opportunity to quell this rehash of the old mod-O
vs RW/Chareidi debate? Little new ground is being covered. Instead, we
are dividing ourselves over the issue of who is dividing us.


Micha Berger (973) 916-0287          MMG"H for 28-Feb-00: Levi, Vayakhel
micha@aishdas.org                                         A"H 
http://www.aishdas.org                                    Pisachim 121b
For a mitzvah is a lamp, and the Torah its light.         

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Date: Tue, 29 Feb 2000 09:20:00 -0500
From: gil.student@citicorp.com
Re: Shittuf (was:gezel akum)

In Avodah vol 4 #369 RM Berger wrote:

>>On a different note, would the Rambam hold that belief a god that had human 
form is shutfus? What I really want to know is, does his issur of this belief 
include only Jews? Similarly, New Age "Qabalists" who think the Eitz Chaim is 
the form of the deity or some such warping of Kabbalah.>>

R. Moshe Shternbuch discusses this in his Teshuvos Vehanhagos 3:317,365.  He 
says [albeit without many sources] that believing in a god with a human form is 
NOT shituf but classic avodah zarah.  I also saw the following in the Frankel 
Rambam (Hilchos Yesodei HaTorah 11:4) [Yeshua HaNotzri...] "garam le'abed 
Yisrael becherev ulefazer she'eirisam ulehashpilam ulehachalif haTorah ulehatos 
rov ha'olam *la'avod elo'ah mibal'adei Hashem*."  That does not sound like 
shituf to me.

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Date: Tue, 29 Feb 2000 09:25:52 -0500
From: gil.student@citicorp.com
The Siegler case - It's good for the Jews!

>>It puts the batei dinim on notice that they can't treat women as second-class 
citizens It shows them that they can't takes bribes It brings in outside 
supervision and control to ensure that justice is indeed being pursued.>>

I would think that they were already on notice.  "Ki hashochad ye'aveir enei 

Outside supervision, that's a great idea.  Just ask Hyrcanus and Aristobulos.

Yes, it's frustrating and yes something must be done.  But don't forget to look 
at the big picture and the indirect results of giving a secular government 
authority over our religious courts.  Perhaps following the sensible suggestions
in R. Chaim Malinowitz's article in the most recent Jewish Action 
[http://www.ou.org/publications/ja/default.htm] is a start.

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Date: Tue, 29 Feb 2000 09:27:15 -0500
From: "Lawrence M. Reisman" <LMReisman@email.msn.com>
Fw: Facing the truths of history.

In response to my posting, Harry Mayles sent the following reply, which was
meant for the entire list.

I'm not sure I would call it  distortion, but, yes
every author has a bias. But can you name a biography
written by the LW that censors material that would be
detrimental to the Hashkafa of the author?  That's one
of the reasons I like to see documentation. This helps
to filter out bias. It doesn't always work, but it

The source of RJJS's description of Shraga Feivel
Mendlowitz's part in starting a secular college was
the "Misiach B'Fi Tumo" of the NY Board of Regents
Archives. I did not read the Marvin Schick article.
What part of the RJJS's description of those events is

As for Rakkefet's description of the events
surrounding Torah VoDaas(TVD) the only one I can
recall was in his excellent book on Bernard Revel
which was very well documented. I do not recall any
negative refferences to TVD there although it has been
a while since I read it. Can you elaborate as to the
distortions you are reffering to both for TVD and

With regard to Mr. Mendlowitz's involvement with the college, both his name
and Rav Hutner's were listed as directors, but that was their only
involvement.  They endorsed the college initially, but the actual work of
organizing was done by others.

With regard to Rabbi Rakkefet's treatment of Torah VoDaas, he mentions it in
his chapter "Orthodox Opposition."  The chronology strongly implies that
Torah VoDaas started its high school and bais medrash in the late 1930's,
and the tone is one of a right-wing attack on RIETS.  In fact, the high
school started in 1925 and the Bais Medrash soon after, and faced opposition
from RIETS backers, which the Rakkefet biography does not mention.  Rabbi
Rakeffet's bias is amply shown in a "Jewish Action" article some years ago
concerning R. Revel, R. M. Soloveitchik, and the Meitcheter Illui, in which
he says flat out that RIETS was the only institution of higher Torah
learning in the 1920's.

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Date: Tue, 29 Feb 2000 09:36:05 EST
From: Yzkd@aol.com
Re: Facing the Truths of History

> >     3.  Out of curiosity, what evidence is there that over the past ten
>  > years, going to Ponovezh has been a path to getting to be recognized as a
>  > Gadol haDor?
1) is that the criteria one uses where to learn?

2) I thought Torah Munachas Bkeren Zovis.

Kol Tuv

Yitzchok Zirkind

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Date: Tue, 29 Feb 2000 09:40:11 -0500
From: "Lawrence M. Reisman" <LMReisman@email.msn.com>
Re: Fw: Facing the truths of history.

For those who were confused by my last post, the last paragraph is mine, in
answer to Harry Maryles.  For those who question my calling RSFM "Mr.
Mendlowitz," that is exactly how he insisted he be addressed.  To this day,
many of his talmidim still use it, including the Bostoner Rebbe.

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Date: Tue, 29 Feb 2000 09:40:37 EST
From: Yzkd@aol.com
Re: TIDE and TuM

In a message dated 2/29/00 6:09:25 AM Eastern Standard Time, 
ksirote@fenics.com writes:

> did Einstein get s'char for his work in physics

See Tiferes Yisroel on the Mishne Choviv Odom

Kol Tuv

Yitzchok Zirkind

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Date: Tue, 29 Feb 2000 08:53:47 -0600
From: "Yosef Gavriel and Shoshanah M. Bechhofer" <sbechhof@casbah.acns.nwu.edu>

I think Klal Yisroel would benefit greatly from more hagiographies, on all
sides of all divides. (That was a hook to get you to read this post.)

The problem is that there is no real funding for any publishing ventures -
hagiographical or biographical, scholarly or popular - available. The
overwhelming majority of Jewish publishing - save for a select few funded by
Artscroll - is of the nature of the secular "vanity press." This afflicts me
personally, as I would love to research and write more, but can only pursue
such endeavors as a very small sideline activity, as they do not produce any
income, and, aderaba, require personal expenditure.

Yosef Gavriel Bechhofer
http://www.aishdas.org/baistefila    ygb@aishdas.org

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Date: Tue, 29 Feb 2000 09:52:26 -0500
From: "Markowitz, Chaim" <CMarkowitz@scor.com>
RE: Avodah V4 #399

	To be fair to R'J.J.  Schachter, it must be noted that he wrote a
rebuttal to Marvin Schick which appeared (believe it or not) in the Jewish
Press. (Marvin Schick's article also had appeared in the Jewish Press the
week before). Although, I can not quote from his article I do remember being
more impressed by R' J.J. Schachter's arguments than by the arguments of
Marvin Schick 

> Date: Mon, 28 Feb 2000 11:42:07 -0500
> From: "Lawrence M. Reisman" <LMReisman@email.msn.com>
> Subject: Facing the truths of history.
> Harry Maryles, in his long post, claims that right wingers are distorting
> history by taking out biographical details which do not agree with
> right-wing hashkafa.  Unfortunately, the article on which he relies has
> been
> shown to make similar types of distortions.  Thus, in a recent article in
> the New York Jewish Week, Marvin Schick showed that RJJS's recounting of
> R.
> Shraga Feivel Mendlowitz's part in starting a secular college was grossly
> overstated his role.

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Date: Tue, 29 Feb 2000 09:11:53 -0600
From: "Yosef Gavriel and Shoshanah M. Bechhofer" <sbechhof@casbah.acns.nwu.edu>
Interesting Parallel...

...in the secular controversy regarding the ethics involved in the
publication of the cause of death of the Israeli singer that recently died,
to our discussion of the ethics in the SE case.

Yosef Gavriel Bechhofer
http://www.aishdas.org/baistefila    ygb@aishdas.org

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Date: Tue, 29 Feb 2000 10:36:25 -0500
From: "Sheldon Krause" <sk@ezlaw.com>
RE: Beis Din in Civil Court

In response to R' Carl:

1. As subsequent posters have noted, zabla is rife with abuse for many
reasons:One, it turns the proceedings into a five ring circus with two
partisan borerim, two partisan toanim and the third impartial dayan. This
also adds to the costs.

2. A zabla panel is accountable to no one.  Unfortunately, established batei
din aren't very accountable either but there is at least some structure and
in some cases Rabbinical authority (RCA, Igud, Agudath Harabonim) to turn
to.  Of course, this same intervention can also be used for less than benign
purposes by various people including Roshi Yeshiva who come to the defense
of their former talmidim often armed with only one version of the facts and
little knowledge of the applicable poskim.

3. Zabla is very expensive and time consuming. All the boys need to get
paid. There is no mazkir so its hard to schedule sessions, then not everyone
shows up.

4. Zabla panels don't have established forms of shtarei birurin or regular
experts on law and other matters to consult with. Th eresult is that you may
get a jedgment which is not enforceable in court.

5. As subsequnt posters have pointed out being in an established Bais Din is
no assuarace of fair treatment.

BTW, on the legal issues in the case, bemichilas kvod Nat Lewin, I don't
know why the First Amendment is relevant to whether the factual statements
made by the Bais Din in the heter were defamatory.  For  example, if  a Rav
from the pulpit says that Reuven stole money from Shimon or that Reuven is a
a "noef" it  should be actionable.  However, if the rav says that the
persons daos or out of line or the person is a heretic or sonei hashem that
involves religious judgment and would not be.  Similarly the Bais Din's
procedures and decisions would not be actionable, in this case the decision
that a heter meah rabbonim was called for, since religious bodies should
have autonomy. But if they publish factual statements (generally a kuntres
is done with the factual statements supporting the heter) about somebody
they would be. Whether the person being defamed has a religious obligation
to bring that before a Bais Din is of course not a matter for the secular

-----Original Message-----
From: Carl and Adina Sherer [mailto:sherer@actcom.co.il]
Sent: Monday, February 28, 2000 1:18 AM
To: Sheldon Krause; avodah@aishdas.org
Subject: Re: Beis Din in Civil Court

On 27 Feb 00, at 21:54, Sheldon Krause wrote:

Nice to know you're on here :-)

> Carl Sherer wrote:

> The situation is a Chilul Hashem for sure, but I wouldn't necessarily
> the woman without knowing more facts.

I'm sorry if I created the impression that I was blaming the woman.
I was not trying to. I thought that by saying that the Chilul Hashem
was caused by a lack of "v'hyisem n'kiyim" I was implying that
there was blame on all sides. IMHO, the very fact that people have
a hava amina that such a thing (bribery) could go on in a Beis Din
is a chilul Hashem.

> Rabbi Bleich as quoted in the article is right about the fact that this
> belongs in a Bais Din but I know that no Bais Din
> would get involved. As Rabbi Bleich said at  recent Agudah Yom Iyun, we as
> community have been over the mitzvah
> to establish Batei Din.

I was actually hoping that this kind of case would galvanize the
community into trying to establish some sort of structure that
would bring Batei Din under supervision. Then again, in Eretz
Yisrael where there is such supervision, we see people avoiding
Beis Din anyway.

 Even in the best of
> the standing Batei Din there is often no minimal understanding of fair
> and due process and the Choshen Mishpat is vioalted with impunity, with ex
> parte contacts with the litigants, etc.

That's Yoreh Deah - not only Choshen Mishpat.

I would never suspect a dayan of
> accepting out and out shochad, but what about participation in the heter
> meah rabbonim by Roshei Yeshiva whose yeshivas have in the past received
> contributions from the husband, etc. Such is apparently par for the

I would argue that those Roshei Yeshiva should recuse themselves
because of a conflict of interest. I don't know how pervasive the
"heter Meah Rabbanim" is today (I only know personally of one),
but I had the impression that the Meah Rabbanim were put
together by people who are out of the mainstream. You're telling
me that it's rotten to the core.

> As one of my frum legal colleagues once said, the only thing you can tell
> client that is more hilarious than
> "This won't cost you alot of money" is "Why don't you try a Din Torah?" On
> the other hand, the issuer of arkaos, according to Rabbi Bleich remains.
> (Although I understand that in certain circumstances Rabbonim have given a
> heter arkaos to someone involved with a litigant who refused to go to any
> established Bais Din and insisted on zabla).

Forgive the naivete, but why is going to a zabla a problem? Is it
because the Rabbonim don't know the halachos? I would think that
at least as far as bias is concerned, the fact that the two dayanim
chosen by the litigants would have to chose a third would be some
sort of protection. Am I wrong? Also, why would it be mutar to give
a heter arkaos if the opposing party is willing to go to a zabla,
which is still a Jewish court that (in theory at least) will judge al pi

-- Carl (who has no experience litigating except for himself and his

Please daven and learn for a Refuah Shleima for our son,
Baruch Yosef ben Adina Batya among the sick of Israel.
Thank you very much.

Carl and Adina Sherer

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