Avodah Mailing List

Volume 05 : Number 124

Monday, September 18 2000

• Re: Hagbeh/Orur Asher Lo Yokum es Divrei Hatorah Hazos
• Viduy Maaser
• Re: Dor Revi'i on shemitah bizman ha-zeh
• RE: RSZA Essay on Heter Mechira
• Nishtana Hateva
• Rav Lau's position on hm
• RE: Rav Lau's position on hm
• Re: Nishtane Hateva
• RSZA's essay on shemita and heter mecirah
• Reporting Tax Evadors?
• RE: Shemitta
• Mamlechet Yisrael (was Re: Areivim V5 #303)
• hagbah
• Re: Reporting Tax Evadors?
• harugei malkhut
• Re: harugei malkhut
• Re: Reporting Tax Evadors?
• Re: Mesorah Ashk. vs. Sfard

In a message dated 09/15/2000 9:23:48 AM Eastern Daylight Time, 
sba@blaze.net.au writes:
> A few years ago, (when I was Gabai in our BHMD), I did some research
> on the correct method for Hagbeh. It's quite obvious from the Mishnah
> Berurah that you should turn right and slowly go 360 degrees. The MB
> (IIRC) compares it to the way the Cohanim turn for duchenen.

  Why is it permissible for the magbia to turn his back to the aron kodesh?  
The MB says turning east to north - is that clear it's 360.  Did you find any 
other sources?

KVCT,
Joel Rich

At the beginning of this week's sicha, Rav Nebenzahl talks about 
viduy maaser, and why a viduy (which he interprets as confession) 
was necessary. You should be able to find it at:

http://www.hakotel.edu/torah/rn.html

-- Carl

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

In a message dated 9/15/00 4:08:11 PM Eastern Daylight Time, DGLASNER@ftc.gov 
writes:
> The Dor Revi'i cited Sanhedrin 12a which forbids intercalating 
> a shemitah year, because, Rashi explains, a leap year would 
> prolong the prohibition against working the land.  The Dor Revi'i 
> observed that, under the fixed calendar now in effect, the 
> shemitah year of 5724 was intercalated.

Maybe this is a proof to Shitas HoRambam Hil. Kidush Hachodesh 16:4, and see 
Margoliyas Hayam on Sanhedrin Al Asar.

Kol Tuv, KVCT,
Yitzchok Zirkind

On 15 Sep 2000, at 17:19, Feldman, Mark wrote:

> Carl Sherer stated (probably on Areivim) that he believes that the Heter M
> should be allowed for the purposes of allowing farmers to export their
> produce (otherwise they may face financial ruin), but not for sale to
> Jews--even non-religious ones.  Such a position implies that for the farmers
> there is a sha'as hadchak and therefore the Heter is valid for them.
> 
> But if that's the case, the issur of lo s'chanem must be viewed as having
> been overcome not only for the farmers, but for all Jews, especially the
> issur focuses specifically on the one selling the land (the farmer), not the
> one buying the produce.

Actually, it was on Avodah, last week. What I argued was that 
according to those that hold by the heter, the issur of lo s'choneim 
is not hutra, but dchuya. It is dchuya only for those limited 
purposes where it takes us out of a shas ha'dchak. I said that I 
could see an argument that with respect to exports, where the 
entire market would be lost for future years were we not to export 
during Shmitta, I could see there being a shas ha'dchak that would 
allow farmers to farm *for the limited purpose of export*. With 
respect to consumers, however, who have other means of obtaining 
fresh produce without relying on the HM, I question whether the 
shas ha'dchak exists. The HM with respect to lo schoneim is very 
limited, and Rav Kook stresses in Mishpat Kohen (I forget exactly 
where - I think 67) the importance of each piece of land for which 
there is no reliance on the HM. Clearly, if produce is being grown 
only for export, there will be less reliance on the HM and more land 
on which Shmitta will be kept k'hilchasa.

> If we look at the list of s'feikos that are unresolved:
> 4., 7. and 8.  cause a problem for the farmer, not the consumer

You're correct as to 7 and 8 (IMHO anyway) but not with respect to 
4. Whether the mechira violates lo s'choneim or not, it seems to 
me that you have a problem of schora in peiros shviis. Because the 
land is still being worked by Jews. Only if the land is both worked 
and owned by non-Jews is there no problem of schora.

> 5. causes a problem for both the farmer and the consumer; if the problem is
> resolved l'hakel regarding the farmer because of sha'as hadchak, perhaps the
> consumer should be machmir

My point exactly.

> 6. causes a problem for both the farmer and the consumer; if the problem is
> resolved l'hakel regarding the farmer because of sha'as hadchak, it is
> possible that the issue should be similarly resolved for the
> consumer--either the mechirah is efficacious or it isn't, but it is possible
> to argue and say that the consumer should be machmir.

I think this is less of a problem than when RSZA wrote his essay 
and nothing was being done in tabu. Until I saw RAP's post, I 
thought the tabu issue had been resolved. But I question whether 
RSZA accepted the "chok okef tabu" as sufficient to resolve the 
safek.

> I still maintain that while religious Jews should not rely on the Heter, it
> is unclear whether Rav Kook would have (in light of all circumstances in
> Israel, esp. charges of religious coercion and the challenges to the status
> quo) paskened that it is incumbent upon religious Jews to save
> non-religious/mesorati Jews from the "aveirah" (compared to bsar oaf
> bchalav!) of relying on the Heter, even if that means that in the future
> some will eat food with no hashgacha at all and increase their hatred of
> religious Jews.

I don't think Rav Kook envisioned the religious/secular relations that 
we have today. The challenges to the status quo have little to do 
with the heter mechira, however, they are with us in any event.

I think the concern of the Rabbanut in Yerushalayim is more for 
those who rely on its regular hechsher as a matter of course, and 
do not realize that during Shmitta, only the Mehadrin hechsher has 
(until now) not relied on the heter mechira.

Also, I think it's important to note that all of the matirim to eat in 
people's homes despite the hosts' reliance on the heter (including 
RSZA) did so with respect to individuals. AFAIK they did not 
extend that to an institutional basis. Someone asked Rabbi 
Aberman on Saturday night what one should do if one was invited 
to a simcha during Shmitta where the caterer relied on the heter, 
and he said that he had not asked RSZA that question and he was 
mesupak if one could eat at such a simcha on the basis of darchei 
shalom (it is not unheard of here for people to say "I'm coming to 
the simcha but don't bother to order food for me," especially where 
the simchas are more of the drop in variety).

> Remember RSZA's discussion arguing for permitting the offering of food to
> non-religious Jews even if it is known that they will not make a bracha, in
> order to avoid hatred.  While RSZA was msupak halacha l'maaseh, Rav Amital
> paskened that it is definitely permitted.

I think RSZA said that l'chatchila one should ask them to put on a 
yarmulka and make a bracha, although I think b'dieved he was 
matir to give them food or drink anyway. I have not seen that in 
print, but I do recall someone telling me that.

-- Carl


Carl M. Sherer, Adv.
Silber, Schottenfels, Gerber & Sherer
Telephone 972-2-625-7751
Fax 972-2-625-0461
mailto:cmsherer@ssgslaw.co.il
mailto:sherer@actcom.co.il

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

In response to the Sherer's request for sources I suggest they see (a) the
She'arim Metzuyanim B'halacha 32-(2) and 192-(9) with regard to medicine
in the Talmud. With regard to the laws of Treifot you can see the Chazon
Ish to Yoreh Deah 5-(3) and if your'e REALLY interested you can see
the introduction to the book Sichat Chullin dibbur hamatchil Ub'hazkiri.

Shana Tova,
Stuart Fischman

In this Fridays Hatzofeh (Mafdal's newspaper) Rav yisroel Meir Lau
(henceforth r"l which does not mean rachmana litzlan- am I going too far
mf?)  wrote an article about shmitta. unfortunately Hatzofeh does not
have a website k"v an english website and k"vbbshk"v not a free email
posting like Yated. I will try to give a taste of the whole article with
some quotes.

r"l starts with a historical recall of the hm. most of which comes from
Ri"m Tokichinsky's sefer Hashmitta. (In this section ther is an
interesting heter re lo techonaim in the name of Rav Mordechai Reveiw?
Rav in Chevron 5553. "L"t is assur only in amechira olamit and not in a
mechira of two years. Adaraba by this mechira it will cause more chanaya
of bn"y in e"y  for they will buy vineyards w/o having to worry about
issurei shviit" - He is talking about private Mechira in shmitta not hm)
r"l quotes the ridbaz about the problem of selling w/o registry and
later in the article he says that in 1979 a new law was passed that for
shmitta purposes, sales do not need to be registered in order to be
legally binding.

R"l quotes the netziv who holds that yesh kinyan lakum lehafkia
mishmitta even though ayn kinyan etc. for trumotu"m. The netziv proves
this from "vehayta shabbat haaretz lachem" lachem velo leaqum. The
netziv continues that also lachem velo hefker (and says he learns this
from tosfot) and says that THERE IS NO KEDUSHAT SHVIIT ON KARKA HEFKER.
If someone is mafkir before three "leit bei mishum shvitat sadeh veulai
al yeday hadchak yachol hayisrael laasot levado hamlacha basadeh".
(Meishiv Davar kuntress dvar hashmitta).

I need help here - All land is hefker because of afkata demalka (or
according to some poskim each baal sadeh has to be mafkir in the
beginning of shmitta) Im kein bitalta torat shmitta?

The bnei zion is cholek on the Netziv b/c hefker doesn't work legally so
also halachicly it won't help. Rav zP frank claims that if halachicly it
is valid even though not legally "mikol makom havey kinyan gamur leinyan
issurim shel tora" (kerem zion).

After the state was formed two questions arose: 1)does hafkaa work even
when there is Jewish soveirgnty 2)Is it still necessary tro have the hm.
"All rabbanim rashiim until thi time unequivocally hold that even though
there is Jewish soveirgnty and even though after the mechira the land
still belongs to the state and is under sovergnty the sale is chal".
R"l addresses lo techonaim. He brings the chazon ish that l"t on matnat
chinam is muttar letovat yisrael but not so l"t of chanaya bakarka.
"aval chanaya bakarka etzem  hamitziut shel ovdei a"z al admat yisrael
bekinyan sanu lifnei hamakom".

Those who are cholek on the ch"i hold that since this chiluk is not in
the gemara it cannot be used to make a yesod ledina.Therefore l"t of
chanaya bakarka is also muttar letovat yisrael. r"l is nosei venotain on
this inyan. I will send mekorot off list to those who wish.

r"l quotes the ch"i (shviit siman 10 page 117) that even though by
selling there is l"t the mechira is valid! (It's really there  i quote
"veoton shemochrim pardesehem lenochri af sheovrim bazeh mishum l"t m"m
havi mechira ultad sefer hatrumot pakah mayhen kedushat shviit vveaf a"g
shekasheh lismoch al zeh ... m"m yesh lahem al mi sheyismochu velachen
ain leesor peiroteyhem diavad.") r"l says that even those who used the
hm it was only horaat shaa and compares it to feeding a choleh misukan
on y"k to do it hakal hakal tchila.

"All agree that hm is begedr sur mers and lichlaal asay tov we have not
yet reached. Those who keep the hm and do not accept upon themselves to
keep shmita kahalacha, as the torah commanded, are maabed bayadaim a big
mitzva said and aeconded in the Torah. Even so, from the beginning of
the settlement of the land until now, many gedolim and at their head the
rabbanim rashiim held that the hm shopuld be continued"

R"l brings his "mori verabi" rsza who writes in maadanay eretz to use
the heter because of afrushay mayissura. (siman 2).

"there are poskim who hold that even if once there was a reason for the
hm, todat it has no place. Unfortunately, the time has not yet come
where the kla of Israeli society will keep shmitta, therefore yesh
lismoch bedieved al elu hamezadidim be h"m".

r"l continues that we should be mechazak those farmers who use otzar
b"d. And encourage hose rabbanuts who decided to be machmir and give
hechsherim only w/o being somech on the hm.

r"l quotes rav kook from mishpat cohen 86 "af al pi sheani maykel
leachayrim mipnay hadchak vechayay nefesh mamash lismoch al hahafkaa,
mikol makom kesheani leatzmi ayn li esek beferot shviit ch"v vechu".
(so rav Bakshi Doron was nitla beilan gadol).

r"l finishes the article by discussing which melachot the Jewish farmer
ca ndo after the mechira, quotes rav kook that four melachot deoraita
are assur (zriah, ketzira-betzira,zemira =pruning,charisha) and says
that rsza was matir ketzira-betzira. Since much of the work in the
feilds is done today by non Jews (Romanians,Thai's amongst others) r"l
syas that  it is possible to be makpid not to do these melachot by Jews.
Rav Lau ends with a quote from r"k:

"uchegon da ayn tzarich lemodaee shelo yimza shum yachid oh mossad
shiyishtamesh bedvarav lachuf ch"v ... et eleh asher ruach ahavat hashem
vechemdat mitzvotov nossesa bahem, vehem rotzim  bechol libam lishmor
ulekayem et mitzvat shmitta kemaamara, belo shum darkei hakulot
sheneemru mipnay dochak hashaa, ubevaday yedu gam elu ladun lekaf zchut
et kol elu shematzavam machriich otom lehitnaheg al pi sidrei haheter
vehahafka.'veish et raat reehu lo tachshevu bilvavchem vehaemet
vehashalom ehavu'"

Imho this article is very balanced and could be used as proof that
"talmidei chachamim marbim shalom baolam"

Tommorow bli neder excerpts from rav Yakov Ariel. (Don't worry MUCH MORE
BEKITZUR).
Avi

> b"d. And encourage hose rabbanuts who decided to be machmir and give
> hechsherim only w/o being somech on the hm.

Isn't this the very action that caused all the problems in the first place?

Akiva

===========================
Akiva Atwood, POB 27515
Jerusalem, Israel 91274  

>  On Friday afternoon, I was learning with Baruch Yosef (age almost 
>  12) and towards the end of the hour, he started asking me how 
>  long I claim Shlomo David has been saying Abba. I told him that it 
>  had been at least six months. He then showed me a Gemara in 
>  Brachos (bottom of 40a IIRC) which says that a child does not say 
>  Abba or Imma until he has eaten dagan. Shlomo David did not 
>  really start eating dagan until about three months ago. To which I 
>  countered "nishtana ha'teva" and he countered "prove it." 

While Bakol Odom Miskaneh Chutz Mibnoi Afilu Bchayov (also in Brochos), in 
this case IMHO no need to utilize the rule of Nishtane Hateva, first of all 
Hatorah Al Horov Tidabeir there were quite a few Yunukah's who were born 
talking, also all the children that were born after the Gzeiroh all they had 
to eat and drink was Shemen and Dvash (Soteh 11b, and see MaHARShA there), 
also the Dor Shenolad Bamidbar which may not of had any bread only Mon (See 
Minochos 45b Tos. D"H Korvu, and see Yuma 75b and Hagohos from the Bal 
Halvush, the L. Rebbe discuses this in Reshimois # 29 and # 32).  Furthermore 
by Odom Horishon himself before he ate from the Eitz Hadas he spoke (to say 
that the Dogush is "Abba vImma" is IMHO a Dochak), bpashtus the Diyuk here is 
"Yodeia Likrois" not "Yochoil Loimar" this is a certain intelligence that he 
is able to call for him recognizing that he can help him out, or Boifen 
Acheir.

Kol Tuv, KVCT,
Yitzchok Zirkind

RSZA's essay was excerpted from the sefer Shnat Hasheva.  Unfortunately,
the book I have, "Shmitta: Mekorot, Hagut, Mechkar"  doesn't say who
published Shnat Hasheva and when.

Daniel

A friend of mine wrote to me:

"I just finished paying our personal property tax using Fairfax County's
electronic check option on their web site (convenient!), and I noticed that
they prominently display the phone number for reporting tax evaders.  And
that got me to wondering," what the halachic consideration of reporting
(Jewish) tax evaders in this situation?

Thoughts?

-- Eric

From: "Carl and Adina Sherer" <sherer@actcom.co.il>
"Carl and Adina Sherer" <sherer@actcom.co.il>
> P.S. I know I promised you all I would try to summarize what Rabbi 
> Aberman said, 
<snip>
> He also mentioned a Chazon Ish which speaks about 
> Ahavas Yisrael being more important than being machmir in Shviis. 

I was thinking based on this past week's parsha:  The Ki Savo tochacha is
supposed to represent the golus of the second Bais Hamikdash while the
B'chokosai tochacha is supposed to represent that of the first.  Our mesorah
is that the first BHM was destroyed for various sins, including that of not
keeping shmittah, while the second BHM was destroyed because of sinas
chinam.  (It makes sense that the second BHM would not have been destroyed
because of shmittah if, as the majority pasken, shmittah is drabbanan when
yovel is not noheg.)

So, while it is important to resurrect shmitta observance as we return to
our Land, it would make sense to consider Ahavas Yisrael to be primary.

Kol tuv,
Moshe

On 18 Sep 2000, at 16:37, Shoshana L. Boublil wrote on Areivim:
> B/c the basic question is when and how do you determine when Mamlechet
> Yisrael starts?

> As the moment Mamlechet Yisrael is declared halachically, many changes
> will have to be made to the way we keep Aieruv, Shmitta, Yovel,
> Korbanot etc.  As solutions to the problems about to arise haven't
> been reached yet, Rav Yisraeli and Rav Neriya advocated putting off
> declaring halachic Mamlechet Yisrael until the solutions are reached.

Does Mamlechet Yisrael have to be "declared?" AIUI there are (or 
were) poskim who held that the Israeli government today has the 
status of melech (I believe that Rav Yisraeli held that, although he 
later recanted, and several months ago, RYGB pointed me to a 
tshuva in the Tzitz Eliezer that seemed to be saying that). If the 
government has the status of melech, wouldn't it follow ipso facto 
that there is Mamlechet Yisrael?

> I also have been wondering what are the Gedarim of Lo Tosif.

If you are implying that keeping Shmitta k'Hilchasa rather than 
relying on the HM is "bal tosif," I think not. The classic examples of 
bal tosif are an extra parsha in tfillin, a fifth min on Succos and so 
on. It involves taking an existing mitzva and adding an extra feature 
to it. It does not involve taking an existing mitzva and fulfilling it 
rather than avoiding it. Kein nireh la'aniyas daati.

-- Carl

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

Gil Student
>> Why is it permissible for the magbia to turn his back to the aron kodesh? 
>> The MB says turning east to north - is that clear it's 360. Did you find any 
>> other sources?

> Why should it be forbidden? It is its own reshus, so you technically
> don't even have to stand up in front of an open aron kodesh.

In the dinim concerning which way to face in tfila if the aron isn't in the
mizrach, my recollection is that it was widely accepted that even if you
didn't face the aron, you could not turn your back to it (eg if the aron was
in the west)

KVCT,
Joel Rich

RE Simon wrote:
> what the halachic consideration of reporting (Jewish) tax evaders in this 
> situation?

I once asked my rav whether it would be permissible to work for the IRS or
if it was mesirah - *improperly* handing over a Jew to secular authorities.
He said that there are ways to justify working for the IRS but that it would
be only for someone desperate for a job.

I can't speak any more to this issue but I recall seeing an RJJ article
about it in the '80s.

Gil Student

After some coaxing, I have decided to transcribe my notes to a shiur
given by my teacher ha-Rav Prof. Shnayer Z. Leiman (delivered on Rosh
.Hodesh Adar II, 5760), on the topic of the piyyut "Eleh Ezkerah." As
Yom Kippur is quickly approaching and the topic of the 10 harugei
malkhut has been discussed on this forum of late, I think it may be more
than a bit appropriate for hafatsah. Please keep in mind the usual
disclaimer of not ascribing to Dr. Leiman any errors, but rather to me,
poor transcriber that I may be.  I think there may also be a tape of the
shiur available for those who have access to other tapes of Dr. Leiman
public lectures. In any event, I assume the shiur will soon be developed
into an article; I will try to find out when/if this should occur.

First, he questioned why we say "Eleh Ezkerah" on Yom Kippur bi-khelal.
Fine, "Arze ha-Levanon" on Tishah be-Av might be relevant because we
mourn the loss of the Temple, the Chmielnicki massacres, etc. on that
day, so mourning for 10 rabbis is appropriate...but why on Yom Kippur?
Traditional answers to this include: a) the peshat of the piyyut is that
the death of the 10 serve as  atonement for us; b) tsadikim die as a
result of the sins of that generation, and thus we want to remember to
be repent completely on YK so as not to (indirectly) cause the death of
tsadikei ha-dor; c) we pray on YK that resha`im die for all the rish`ut
they have done towards us; d) some of the 10 actually died on YK, so
it's their yarhzeit commemoration. As an aside, Dr. Leiman noted that in
the Book of Jubilees [34:12; Yovlim was written during Maccabean times]
there is reference to mekhirat Yosef having taken place on the 10th day
of the seventh month (i.e. Yom Kippur).

Second, he noted that early countings of the harugei malkhut never count
10; it's only in the later sources that the number 10 is mentioned
specifically. Also,  the Torah at mekhirat Yosef only counts 9 brothers:
recall, Yosef, Binyamin AND Reuven cannot be counted ...Yosef, because
he was the victim, Binyamin and Reuven were both not there then. So the
10 rabbis could not possibly be exact punishment for that. Besides the
geographical and chronological differences between the 10 rabbis that
everyone is aware of. Nowhere in classical .Hazal is there a hint to the
10 serving as punishment/ atonement for Yosef: after all, "u-vanim lo
yumtu al avot, ish be-.het'o yumatu" [Dev. 24:16], no vicarious
punishment. Except, of course, "poked `avon avot" which is "midat HKBH"
-- if the sons perpetuate the actual sins of the fathers. Surely the 10
rabbis were not guilty of selling Yosef.  In fact, in various other
places in .Hazal, these rabbis' "death scenes" are narrated and in each,
a particular "sin," for which the rabbi himself ascribes his "meriting"
death, is detailed. See, for example, Mekhilta (Mas. Nezikin, ch. 18);
Tosefta BK 8:13; Avoda Zara 17b for some of their "iniquities" (very,
very minor ones). In none of these cases, is there hinted punishment for
the selling of Yosef. So, where did the paytan get his idea of "atoning"
for the brothers' sale?

The piyyut, of course, is based on the late midrash known as "Midrash
Eleh Ezekrah/10 Haruge Malkhut"[found in *Bet ha-Midrash*, ed. A.
Jellinek (3rd ed., Jerusalem: 1967), II:64-72; VI:19-35] (or both are
based on a third as-yet unknown source). The piyyut and midrash are
anti-Christological in nature:

The midrash begins with a metaphor to the paritse ha-dor [a
technical/code word for early Christians] after the .Hurban: Just as
when the Trees were created they stood tall and proud, but  then became
very depressed and humbled when Metal was created because they realized
that metal could cut them down; so too, after the .Hurban, the paritse
ha-dor were not depressed at all, saying "what do we need a Temple for
anyway, if there are talmide .hakhamim around who could teach us Torah?"
At that point, HKBH put in the mind of the Roman Emperor to study Torah
so he called the rabbonim of the time to teach him. It was a direct
result of their teaching Torah to the Emperor that he concluded that
Yosef's brothers were guilty for having sold him. In the absence of
Yosef's brothers, the 10 would serve the same purpose. It was at that
point that Rabbi Yishmael Kohen Gadol is "yored le-merkabah," as is
often the case [Dr. Leiman didn't mention this, but recall the famous
aggadeta at Berakhot 7a, from which Avraham Fried made a hit, about
"Tanya amar Rabi Yishmael ben Elisha...], in order to ascertain if the
gezerah was nigzar by HKBH, in which case it couldn't be overturn, or
whether there was yet a possibility to annul the decree. There, he was
told by an archangel that indeed the gezerah was from On High and that
they should accept it....

Since in Christianity vicarious punishment is a very common idea (Jesus
dies for "us", Jews should be put to death for killing him, primeval sin
etc., etc.), we Jews claim: aderaba, we are NOT punished for someone
else's sin UNLESS WE PERPETRATE THEIR SIN. Recall the piyyut begins with
the metaphor of the Trees and Metal. Apparently this is a common
metaphor used (by? about?) the early Christians: since in order for
metal to chop trees, a part of the tree itself must be used as handle
for the axe, so too oto ha-ish (metal, in the violence sense) came from
"us" (the trees). (This is very similar to/ associated with the Toldot
Yeshu literature.) The paritse ha-dor's claim that "what did we lose by
the destruction fo the Temple?", is a clear remez to Christianity's
doing away with "the Law." The reference to the Roman emperor (sar)
learning Torah and vilifying the Jews based on his reading is a clear
hint to the Holy Roman Empire in which Christianity came to the fore.
The (medieval) Christians may say Jews are .hayav mitah for someone
else's death, but we claim we are only .hayav for actual sins we commit.
Thus, perhaps we say this piyyut on Yom Kippur to remind ourselves of
the devastating sin that we, be-`avonotenu ha-rabbim, continue to do to
this day — since we are still not zokheh le-bi'at go'el etc., we must
still be "sinning" — and have since the time of mekhirat Yosef: sin'at
.hinam/ factionalism  [RW/LW/MO disparagement is only one aspect of
such!--yd].

On Yom Kippur, then, we hope to earn atonement and improve our behavior
towards fellow yiden. [Ve-khen yehi ratson...]

As you can see, he made no mention of gilgul; atonement, yes, but not
gilgul. Someone in the audience cited the Rabenu Bahya but his point was
not particularly relevant to Leiman's talk.

Ketivah va-.hatimah tovah le-kulam,
Yisrael Dubitsky

On 18 Sep 2000, at 12:38, yidubitsky@JTSA.EDU wrote:

> Second, he noted that early countings of the harugei malkhut never count
> 10; it's only in the later sources that the number 10 is mentioned
> specifically. Also,  the Torah at mekhirat Yosef only counts 9 brothers:
> recall, Yosef, Binyamin AND Reuven cannot be counted ...Yosef, because
> he was the victim, Binyamin and Reuven were both not there then. So the
> 10 rabbis could not possibly be exact punishment for that. 

This came up recently in the Daf Shiur (I'm behind again) and IIRC 
R. Fishel Schachter gave two answers:

1. Yosef himself needed kapara, because it was a result of the 
lashon hara he spoke on the brothers that they hated him so much 
and came to sell him into slavery.

2. The brothers were kaveyochol mitzaref the shchina as a part of 
the sale (see Rashi towards the end of that perek where he may be 
alluding to this when he says that the brothers swore HKB"H to 
secrecy - C.S.) and therefore the shchina kaveyochol needed 
kapara.

IIRC R. Schachter then went on to say that R. Akiva was the gilgul 
who was mechaper on the shchina (because he was the source for 
much of Torah she'Bal Peh - see the Gemara in Shabbos about 
how Moshe Rabbeinu was upset because he couldn't understand 
R. Akiva's drashos which were "halacha l'Moshe miSinai"), and that 
Chutzpis the Meturgeman was the gilgul who was mechaper on 
Yosef, which is why his tongue was R"L dragged around by 
chazirim (the Chafetz Chaim brings this in Shmiras HaLashon from 
the Sefer HaKoneh - I think it's in Shaar HaZchira Chapter 9; I do 
remember that it's in footnote ches and it's page 46 of the edition of 
the Chafetz Chaim and Shmiras HaLashon that brings all the 
mekoros at the bottom of the page that is put out by the people 
who do the Shmiras HaLashon shiur on the phone).

I also have a vague recollection of Rav Schachter saying that the 
Ben Yehoyada (from the Ben Ish Chai) al asar in Nedarim goes 
through and matches up the Asara Harugim with the brothers, but I 
could be wrong about that one.

-- Carl

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

On 18 Sep 2000, at 12:32, Gil.Student@citicorp.com wrote:
> I can't speak any more to this issue but I recall seeing an RJJ article
> about it in the '80s.

I think you're referring to the article on dina d'malchusa in Volume II 
Number 1.

-- Carl

On Fri, 15 Sep 2000 14:06:00 -0400  said:
>In support of R' Rich Wolpoe, a paper abstract, which bears reposting:
>
>Law, Custom and Tradition in Early Jewish Germany
>                - Tentative Reflections
>                   Israel Ta-Shma
...

I believe Dr. Irving Agus had a slightly different POV He seemed to
indicate that Tosfos was endorsing the TB by reconciling it to the old
Minhag as much as possible.
Thus:
1) The TB gained endoresement mongst Ashkenazim
2) Tosfos was "kvetching" with a specifc agenda in mind - i.e. how to
make the TB conform to the prevailing minhag

As a by-poduct of this process, text began to supercede mimetics and
oral Mesorah.

AIUI, Agus (and I concur) did not see Tosfos pushing text over oral
tradition, rather they were apologists for minhag Ashkenaz as well as
devoted to the TB as a superior text for learning.

In conversations wiht R. D. E, Kanarfogel, he seems to view this as a
competition model wherein the TB triumphs over the minhag with Tosfos
leading the charge

Extrapolating this trend to the present then this TB lamdus triumph over
minhag was the impetus for the GRA and Briskers to continue adovcating
lamdus over Mihag/Mesorah as a progressive evolution allowing litrugy
and customs to be revsied based upon Talmudic research.

The more "German" school still adheres to the glory of the ancient
customs, the Maharil is one of the advocates of this school.

The modern reconcilliatoin between TB style lamdus and Minhag Ashkenaz
oral/mimetic mesorah is to foster a dichotomy of lamdus and halachah.
This dichotomy pre-exists this situation, however this lamdus
vs. tradition split ampliphies it further.

Let's see how this plays in Peoria...

If RYBS and the Brisker school see The Chazaras Hashtaz as the "tefillas
hatzibur". Logically extened it precludes answering Boruch hu uvarch
shmo. It also is problmatic with regards to the piyyutim inserted in
Ch"h"Sh during the Yamim Noraim.

The reconcilliation school will say that the lamdus is ok as far as it
goes, but the minhag of answering BHvVS and the minhag of adding piyyutim
in ChhSh still is not overridden by theoretical lamdus... One problem in
playing this out is that it calls into question everyone who has done
it until now. The second problem is that it is a slippery slope. What
if lamdus or logic undoes some of our most cherished customs? (Kol Nidre
comes to mind).

It maybe intellectually dishonest to dismiss the lamdus and it is
potentially destabilizing to have hanhagga chnage every time a new
chiddush gets published.

With this model in mind, Tosfos was perhaps also a reconciller. He knew
the bottom line psak from Mimetics or Oral Minhag. Working backwards,
he often is doing his best to fit this into the TB.

Many halachic writers similarly engage in the limud zchus school.
They see mimetics as frequently valid, and then do their best to reconcile
questionable mimetics with texts.

The problem we have today is that the original Ashkenaz Mesorah has
been blurred by the sands of time. Nevertheless, some communities
(e.g. KAJ/Breuer's) have made a Samsonian effort to preserve their
legacies despite the popular trend. Furhermore, time has migrated mimetics
into text and much of the old Minhag is preserved - particularly by
the Maharil. Nowadays R. Hamburger is engaged in a similar task.
Minhag Frankfort is actually preserved in text format, although the
justifications for those minhagim may not be there...

Thus we are faced with several models.

1) Lamdus/logic as the final arbiter of halachah
2) Masorah/Minhag as the final arbier
3) Lamdus/logic as the aribtrer of learning but not of practice
4) Some combination of all the above.

It is my impression that the Sridei Eish (SE) was struggling with this and
came up with something like #3 or #4. He had the powerful intellectual
background of the Livisher mindset, and picked up the strong devotion
to Minhag in Berlin.

My rebbe - R. Jeruchem Gorelick - was among those Briskers who stayed
away from learning Halachah. It seemed that he had a healthy respect
for Halachah and the power of hte Brisker Derech and feared potential
abuse to the hlachic fabric by avoiding the issue and sticking to the
more theoretical masechtos.

And perhaps this is the impetus that kept Brisker in Kodshim....

Regards,
Rich Wolpoe
pmsrxw@ibivm.ibi.com

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


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