Avodah Mailing List

Volume 08 : Number 065

Thursday, December 6 2001

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Subjects Discussed In This Issue:
Date: Tue, 4 Dec 2001 04:06:28 -0800 (PST)
From: Harry Maryles <hmaryles@yahoo.com>
Subject:
Re: Dr. Eliezer Berkowitz and the Abrogation of the Shulchan Aruch


--- RabbiRichWolpoe@aol.com wrote:
> EG, if we pasken that techeilles eino me'akkev es halavan we cannot
> revisionistically go back to shas and change that psak and start over
> again. And if we did, we would need to deal with the Rishonim who AFIAK
> universally assume this psak.

IIRC it is not universal. I believe it is a Maclokes and one Rishon... I
believe it is the Bal HaMeor but I'm not sure... holds that Techeles IS
me'akkev es halavan.

HM


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Date: Tue, 4 Dec 2001 18:17:56 +0000
From: Micha Berger <micha@aishdas.org>
Subject:
Re: Melachah vs Avodah


On Tue, Dec 04, 2001 at 09:12:45AM -0500, Gil Student wrote:
:> Avodah is a deed performed in relationship to the subject. So we speak of 
:> avodas Hashem.

: How is Hashem the subject and not the object of our avodah of Him?

Of course He is the object. However, do we do avodah for His sake or
for ours (the subject)? Do we do it so that Hashem could have it done,
or because we need to be the doers?

-mi


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Date: Tue, 04 Dec 2001 09:12:45 -0500
From: "Gil Student" <gil_student@hotmail.com>
Subject:
Re: Melachah vs Avodah


Micha wrote:
>Avodah is a deed performed in relationship to the subject. So we speak of 
>avodas Hashem.

How is Hashem the subject and not the object of our avodah of Him?

Gil Student


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Date: Tue, 04 Dec 2001 09:14:19 -0500
From: "Gil Student" <gil_student@hotmail.com>
Subject:
Re: Chazon Ish on Nature


David Glasner wrote:
>By the way, what is the source for the assertion that there is a unique 
>halakhic status accorded to
>the two thousand years of shel torah? Has this principle ever been applied 
>to determine a psaq halakhah and if so by whom?

The source is the Chazon Ish and you are not the first to protest.  However, 
R. Moshe Feinstein never cites that gemara.

Gil Student


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Date: Tue, 04 Dec 2001 09:17:44 -0500
From: "Gil Student" <gil_student@hotmail.com>
Subject:
Re: Triage


Stuart Klagsbrun wrote:
>About 40 years ago my grandfather was asked the following shialah (in the 
>presence of his wife and three daughters): The halachah says a man must be 
>saved first but the goyim hold the opposite. If one were c"v on a sinking 
>boat what should one do?

Who is/was your grandfather?

>His reply was very simple: der halachah is zoi uber mir tu'in andish.

And for our Sefardi friends who don't understand Yiddish we would translate 
this as...?

Gil Student


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Date: Tue, 4 Dec 2001 13:26:51 -0500
From: Stuart Klagsbrun <SKlagsbrun@agtnet.com>
Subject:
RE: Triage


On Tuesday, December 04, 2001 9:18 AM, Gil Student <gil_student@hotmail.com>
wrote:
> Stuart Klagsbrun wrote:
>> About 40 years ago my grandfather was asked the following shialah (in the
>> presence of his wife and three daughters): The halachah says a man must be
>> saved first but the goyim hold the opposite. If one were c"v on a sinking
>> boat what should one do?

> Who is/was your grandfather?

Not a famous personality. A talmid of Radin and Mir, he was privileged
to sit next to the CC a"h by davening because when he came to yeshiva
at the age of twelve the gabbai refused to give him a seat until his
bar mitzvah (a small non-catered event. ;-) )

His name was Harav Yeshayahu Molotin. As to who he was I will leave
that to several prestigious list-members who knew to answer. I am at
best unqualified to offer a posthumous description and am obviously a
nogeah bdaver, which means that on two counts anything I say will in
and of itself lower his esteem rather than raise it.

The only point I would make about his derech in p'sak is that I am pretty
sure he was guessing when he said s'nit dor azah gemora.

>> His reply was very simple: der halachah is zoi uber mir tu'in andish.

> And for our Sefardi friends who don't understand Yiddish we would translate
> this as...?

The halachah is so and we do differently.

kt
sk


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Date: Tue, 04 Dec 2001 22:28:08 -0500
From: Isaac A Zlochower <zlochoia@bellatlantic.net>
Subject:
chassid shoteh


Some posts on Areivim have explored the parameters of the chassid shoteh
category that chazal have used to categorize someone who refuses to
save a woman from drowning because of the contact involved. What if
the woman is his wife who is a nidah? Is the refusnik still a shoteh,
or is he being machmir on aroyot? What if his wife is a nidah who is
deathly ill, is physical contact needed to cure her or to take her for
medical treatment permitted? From the discussion and references it is
clear that Askenazim have decided the issue in favor of saving the woman.
The mechaber takes no stance if the woman is deathly ill, and seems to be
undecided in his Bet Yosef commentary to the Tur. The Vilna Gaon is the
one who appears to have included the case of sakanah in the prohibition of
a husband handling his ill wife. However, Sefardim may not reckon with
the Gra's views on this topic any more than the Ashkenazim. As someone
stated, it is unlikely that a posek for either Ashkenazim or Sefardim
will counsel not saving the wife if she is a nidah and in danger.

I am not a Rav, much less a posek. However, I have been taught and
fully believe that one must be machmir on pikuach nefesh. In case of
possible danger to life or limb you do not go to a Rav for a pesak, but
unhesistatingly take the necessary actions to save life. If there is a
dispute among poskim as to the permissibility of action in case of danger,
you follow the lenient position. Hence there should be no question that
you save the woman from drowning or her illness. This is more than a
permissible course of action, it is an obligation. Similarly, in the
case of a baby born in the eigth month, you do everything possible to
save the baby and to ease its discomfort on shabbat. It matters not,
that in the times of chazal, such a baby was considered as good as dead.
Today we have the tools for saving babies whose lungs are not fully
developed, and the use of those tools is mandatory - not optional.

Yitzchok Zlochower


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Date: Tue, 4 Dec 2001 22:37:43 -0500
From: Gershon Dubin <gershon.dubin@juno.com>
Subject:
Shabbos Challah Placement


From: Micha Berger <micha@aishdas.org>
<< We do not know the reason for the order. In fact, didn't Menasheh
(the king, not the sheivet) appear in a chalom to tease Chazal for their
ignorance of it?>>

IIRC Menashe's "tease" was which part of the bread to break, not what
order to put the lechem mishneh.

Gershon
gershon.dubin@juno.com


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Date: Wed, 5 Dec 2001 23:56:00 +0000
From: Micha Berger <micha@aishdas.org>
Subject:
Re: Shabbos Challah Placement


On Tue, Dec 04, 2001 at 10:37:43PM -0500, Gershon Dubin wrote:
: IIRC Menashe's "tease" was which part of the bread to break, not what
: order to put the lechem mishneh.

RYGB and I established in private email what my error was.

I assumed that the reason why we cut the bottom challah on Fridah
night is because its bottom is the bottom of the mishneh lechem as a
whole. Similarly the top challah during the day.

I therefore saw one as the cause of the other. But only because I
assumed that the bottom refered to the bottom of the pair, not just
the bottom of either loaf.

I do not recall where I got this from, and is probably a sevrah that
just came to mind when I was learning the gemara.

I do, however, cut from the bottom of the bottom challah, limaaseh.

-mi

-- 
Micha Berger                 The mind is a wonderful organ
micha@aishdas.org            for justifying decisions
http://www.aishdas.org       the heart already reached.
Fax: (413) 403-9905          


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Date: Tue, 4 Dec 2001 23:38:51 EST
From: RabbiRichWolpoe@aol.com
Subject:
Re: Dr. Eliezer Berkowitz and the Shulhan Arukh


In a message dated 12/4/01 7:34:58am EST, hmaryles@yahoo.com writes:
> IIRC it is not universal. I believe it is a Maclokes and one Rishon... I
> believe it is the Bal HaMeor but I'm not sure... holds that Techeles IS
> me'akkev es halavan.

whoops!

I should say except for a Da'as Yachid it is virtually universal!

[In a second email. -mi]

In a message dated 11/27/01 3:53:34pm EST, DGLASNER@ftc.gov writes:
> Actually based on the Dor Revi'i and what I gather from your summary,
> precisely the opposite is the case. The oral law was inherently flexibile
> and therefore allowed much greater scope for halakhic change than we have
> had since the hatimat ha-talmud. The scope for halakhic change has been
> further limited by the attempts of the Rambam and others to codify the
> torah she-ba'al peh as it was crystalized in the talmud. To recognize
> that the scope for change that was once inherent in the torah she-ba'al
> peh has been progressively circumscribed over the generations since the
> hatimat ha-talmud is simply to recognize reality. It implies nothing
> about the authority of the shulhan arukh.

Halachic theory - AISI - is properly based upon precedent, Traditoin, Masorah 
etc.

However, poskim should be allowed flexiblity in applying theory into 
practical psak.

Illustration: I would not change the "letter" of the law on these 2 items:
1) Burying A suicide outside the cemetary
2) Grzeira against medicimne on Shabbos (mechikas am'manim)

However there is a traditoin, somewhat oral yet and also in print, to be 
meikel in applying these dinnim - IOW to use some Rachmanus...

I don't like to see solid texts re-written.  We have no evidence of any 
ta'us.  The ikar hadin is fine - at least until a bona fide Sanhedrn is 
re-constituted.  But we must temper the din with some seichel ESPECIALLY when 
this has been the trend in practice.

By keeping the ikkar hadin we could be strict in the case of someone who was 
a member of the "hemlock society" and beshito committed suicide.  There are 
cases in the Chachmas Adam where he notes that the minhag is not like dina 
dgmara, but the dina dgmamra is there to fall back upon for certain cases.   
(Sorry I don't have it in front of me now)

We alos have evolved into Glatt Kosher (in less than 60 years!).  That does 
nto mean we need to re-write the Rema.  This is because some yid might be 
stuck in the middle of nowhere and stam kosher is the best he can find.

IN my POV a flexible system that relies upon precdent might take the SA less 
strctily then some others. OTOH it is less likely to ignore it in favor of 
new constrcuts based upon chidushim in Shas.  

It is arguable BTW that many schools of lamdus and Psak have been quite 
willing to abrogate any element in the SA that is not from Shas, and that 
probably means directly from Shas.   V'ein kahn mekomo

[In a third email. -mi]

In a message dated 12/2/01 7:52:43am EST, hmaryles@yahoo.com writes:
> Perhaps, but Dr. Berkovitz obviously felt that this was precisely the
> problem. Tradition had been so codified and evolved to become infallable
> which he believed was the antithesis of Torah SheBal Beh.

> He told me that he personally believed that courage was lacking upon
> the present day generation to effect legitimate change Halacha....

The meta-problem would be that each 'courgeous" rabbi could ignore
precdent and do his own eis la'sos Lashem

This is waht happened in the beginning of the 19th centruy and we now
call this Reform. Virtually every Reformer claimed that they were doing
Reforms lisham to keep Jews from converting out. Someimtes th Halachic
community needs consensus to reign in well-emaing rebels.

To paraprhase, "the Road to Reform is paved by good intentions"

Solmon Schahcter - hardly a right wing radical - saw the dangers inehdrest
in lack of consensus and formualted "Catholic Israel."

My version of Catholic Israel is a bit more restrictive. It outght to
include a broad spectrum of BOTH poskim and Observant Jews. It need not
be unanymous because that will NEVER happen <smile>

If you get a BD that is a da's yachid in liberating agunos, you are
inviting a split over mamzeirus. It will not fly any better than
R.Yreshoshua's dissent on the calendar.

OTOH, I do not exepct R . Berkowiz to change his opinoin. I doubt if R.
Yehoshau did either. Deference to consensus is a matter of humility
not of blind oberdience. Sometimes an individual needs to surrender
his will to the majority or go off and start his own sect.
 
Regards and Kol Tuv,
RabbiRichWolpoe@aol.com


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Date: Wed, 5 Dec 2001 14:18:45 EST
From: RabbiRichWolpoe@aol.com
Subject:
The Abrogation of the Shulchan Aruch


The meta-questoin is:

How does a Halachah become binding?
Can any Talmid Chacham revise or overturn the SA based upon is version
of the Talmud?
Can he do so lacking ANY Rishonim
Can he do so with a Da'as Yachid
Can he do so relying upon Gaonim.  

According to somehting I Heard,the Rambam holds that ANY post Talmudic
source is up for debate that ONLY the Talmud is fixed.

Then we need to decide WAHT is fixed inthe Talmud. What are the Klalei
hora'ah?

Regards and Kol Tuv,
RabbiRichWolpoe@aol.com


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Date: Wed, 05 Dec 2001 15:33:43 -0500
From: "Eric Simon" <esimon@BOP.GOV>
Subject:
Q on Yayishlach


At 34:5, why did Yaakov Avinu wait until his sons got back from the field.
His daughter's been raped, and he wants to hear from his children?
(And, childlen they were: Shimon and Levi were 13, Dina was 8).

 Eric


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Date: Wed, 5 Dec 2001 23:47:01 +0000
From: Micha Berger <micha@aishdas.org>
Subject:
On Learning Tefillah


Here is my father's, R Avi Berger's (BCC-ed), article in his shul's
newsletter for Elul (with some typos from yours truly.) I think this
call is equally applicable to our chevrah, and speak to the heart of
what avodah means and how to add some hislahavus to our tefilah (some
aish to the das).

-mi

[Compliments of the qehillah taking the initiative in other projects
deleted.]

With all that is going on in Eretz Yisroel, with Am Yisroel and with our
friends here, don't you with you could do something? Let's use our gift
of leadership to pilot a program to develop communication with HQBH.

Development implies learning. I would like to propose a chaburah/chavrusah
program directed towards the greater understanding of tefilah, its
meaning and purpose. We will then have a better sense of what we want to
communicate to HQBH, HIS response, and an unserstanding that will help
us elevate our conversation with HQBH to a more meaningful, purposeful,
and enjoyable experience.

Imagine the excitement of learning new meanings to the brachah sheAsa li
kol tzorchi or the anguish in realizing that we say veAhavta three times
a day without thinking of our love for the Mi sheAmar veHayah haOlam.

Don't you share my envy of the freshness of the baal teshuvah's
tefillah? To many of us, most of our avodah is purely rote. Sometimes,
we are inspired by a moving nigun or a personal crisis. Delving into the
inner meaning and Chazal's intentions can transform our daily routine
into a vital, purposeful dialogue. The chaburah/chavrusah method of
learning calls for our active participation.

Let us begin.

When somone suggests a new project to me, my first reaction is: *Where
do I find the time*? _Let's brainstorm_:

At the Shabbas Table - Divrei Torah on tefillah can be made meaningful
to any member of the family. In incorporating such learning, your family
has become a chaburah.

Friday Night After Lighting Candles - Many women enjoy socializing as
a form of relaxation. Here is socialization with a different punch.

A Few Minutes Before or After Davening - Friends are gathered together.
Space is available in the men's and women's sections.

A Rotating Presentation - A specific tefilah can be analyzed at our
seudah shelishis.

Please add your suggestions.

Since the where we learn will evolve from the when, we are only left
with the what. Now is the time to make a comitment.

Note: Focus Helpers -
- Use your own siddur with a translation/commentary
- Put your own notes in your siddur's margins
- Study a seifer on tefilah
- Add 5 minutes to your daily tefilot


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Date: Wed, 05 Dec 2001 15:56:50 +0000
From: "Seth Mandel" <sethm37@hotmail.com>
Subject:
Women and mayim acharonim


R. Michael Feldstein: <Does anyone know about how the practice of mayim
acharonim became customary only for men and not for women? Based on
the reasons given for its practice, it seems that this custom should be
equally applicable to both male and females.> Gil explained the custom
that women don't do mayim aharonim by analogy to heseiba on Pesach. There
is some truth in that, but I think that the real reason lies elsewhere.

The custom of not wahsing mayim aharonim goes back to ancient times in
Ashk'naz. Tosfos already notes that people don't do it, and suggests
the reason is that it is only required when there is melah S'domis
around. (See what Tosfos says: the minhag existed, and Tosfos is
suggesting an explanation, not that the minhag developed after Tosfos'
heter.) It is clear from all Ashk'naz authorities down through the
centuries that people did not wash mayim aharonim, neither men nor women,
nor chillun, not even linguists.

The penetration of mayim acharonim to Ashk'naz occurred with the customs
of the Ari. Outside of the halakhic issue of mayim acharonim, the "last
water" plays a role of significance in Qabbolo. Although the from the
followers of the Ari, it is clera that the Ari held you should wash
all the fingers, down to the palm, as with many other customs of the
Ari, the details got garbled in transmission to Ashk'naz. Thus groups
(especially those with affinity to the Ari's customs, such as chasidim)
began to wash mayim acharonim, but as a chumra, and most just wet the
tops of the fingers.

Customs which men took upon themselves as a chumro never penetrated
to women in Europe, because they learned behavior from their mother,
not from the rebbi or rov, particulary in chasidic circles. If the men
really considered this more than a chumro, they would wash (as the Kaf
haHayyim paskens) down to the end of the fingers.

A separate issue arose with the Vilner Gaon, who held 'al pi halokho
that the original taqqono of mayim acharonim could not be botel. This
view never penetrated beyong his followers, although it created some
confusion in that people who were washing the Ashk'naz mayim acharonim
als chumro thought that they were washing 'al pi halokho. If they were,
of course, they would follow the halokhos of mayim acharonim as brought
by the rishonim and even by the Tur (before he notes that people don't
do it, a practice he similarly does in the similar case of the issur of
mashqim m'gullim): a r'vi'is of water and the same part of the hand as
for mayim rishonim. Similar confusions occurred with the Ari' custom of
doing t'vilo before shabbos or in the morning, which some have confused
with the t'vilo of a ba'al qeri. As a confirmatory data point: those who
held like the Vilner Gaon would insist that the woman wash also. This
question was asked of R. Mendel Zaks, who called in his wife, who said
"of course, we girls washed mayim acharonim in our father's house."

Seth Mandel


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Date: Wed, 5 Dec 2001 14:35:47 EST
From: RabbiRichWolpoe@aol.com
Subject:
Re: round #'s


In a message dated 12/4/01 7:34:44am EST, Joelirich@aol.com writes:
> While we're on the topic,does anyone know an underlying reason why chazal
> were mitaken 100 kolot? given the time period of the takana and the
> fact that 100 is never mentioned bferush by her -eim sisra seems like
> a stretch as a model. and clearly not a directive.

who says such a Takkanah exists? German Congregations only started
doing 100 during the last 100 years or so

Regards and Kol Tuv,
RabbiRichWolpoe@aol.com


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Date: Wed, 5 Dec 2001 22:05:50 EST
From: RabbiRichWolpoe@aol.com
Subject:
Re: On Learning Tefillah


In a message dated 12/5/01 6:59:38pm EST, micha@aishdas.org writes:
> Please add your suggestions.
> Since the where we learn will evolve from the when, we are only left
> with the what. Now is the time to make a comitment.
> Note: Focus Helpers -
> - Use your own siddur with a translation/commentary
> - Put your own notes in your siddur's margins
> - Study a seifer on tefilah
> - Add 5 minutes to your daily tefilot

How about studying one of the classic siddurim While Baer's is my
favorite, there are the Otazar Hatefillos, the Siddurim of Yaavetz,
Shelah, Ba'al Hatanya, etc.

Now if you want to have a communal project, we could work on a translation
project.

One of the most poignant Tefilos isthe V'hu Rachum for Monday and
Thursday . Maybe we could study that be'iyyun with one of the classic
perisuhim and post our reflections

Regards and Kol Tuv,
RabbiRichWolpoe@aol.com


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Date: Wed, 5 Dec 2001 22:32:19 +0200
From: "Carl M. Sherer" <cmsherer@ssgslaw.co.il>
Subject:
Re: organ Donation


[From Areivim. -mi]

On 5 Dec 2001, at 15:11, Joseph Kaplan wrote:
> Carl asks whether R. Tendler distinguishes between Jews and non-Jews
> as organ recipients.
> 
> When R. Tendler spoke on this issue in Teaneck a few years ago, he
> made it clear that he does not distinguish between them, and that a
> Jew is allowed to donate organs to either.  He also told a story about
> a wedding he had attended just shortly before this lecture where the
> mother of either the bride or groom (I don't remember which) was
> dancing up a storm with a heart that had one time beat in another
> person's body.  He said it almost moved him to tears of joy.

The reason I ask is that I have heard it argued here that it is forbidden
to even give bone marrow (let alone organs!) to someone who has a din
of "lo ma'alin v'lo moridin." I find the argument wrong (and in fact
my 16-year old - who overheard the argument I was having - tried to
answer it with a Gemara in Sanhedrin), but I'd be interested in hearing
how the chevra would answer that argument (or not answer it). Micha,
if you think it's appropriate, feel free to take this to Avodah.

-- 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.


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Date: Wed, 05 Dec 2001 21:42:45 -0500
From: "Yosef Gavriel and Shoshanah M. Bechhofer" <sbechhof@casbah.acns.nwu.edu>
Subject:
Organ Transplants


RCS's citation of some rationale ruling out donations based on the halacha
of moridin just begs the question (aside from the fact that both RAYHK
and the CI agree that moridin does not apply bzh"z, and its application
is obscene).

But what RSK found dubious, the application of the question of when the
neshomo departs the body, is precisely RSZA's problem with harvestations.

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


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Date: Wed, 5 Dec 2001 22:44:43 -0500
From: "Yitzchok Willroth" <willroth@voicenet.com>
Subject:
Re: Pregnant Women in Cemeteries


> <<R. Shimon Eider in his Hilchos Nidah (single volume edition, p. 272)
> "recommends" that pregnant women not enter cemeteries because of
> the potential danger to the unborn baby. He cites no source for this
> recommendation>>

> FWIW, I asked Dr. Abraham (Shea) Twerski at a l'vaya about that (k'yadua,
> he comes from a rebbeshe/rabbonishe background) and he saw and knew of
> no problem with it.

If I recall correctly, the English sefer _Pregnancy in Halacha_ quotes R'
Sheinberg in a footnote as saying that he can find no makor in Gemara or
Rishonim to support the widely held belief that pregnant women shouldn't
enter a cemetery.


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Date: Wed, 5 Dec 2001 22:39:07 -0500
From: "Yitzchok Willroth" <willroth@voicenet.com>
Subject:
Re: Shabbos Challah Placement


[From Micha Berger:]
> I assumed that the reason why we cut the bottom challah on Fridah
> night is because its bottom is the bottom of the mishneh lechem as a
> whole. Similarly the top challah during the day.
...
> I do not recall where I got this from, and is probably a sevrah that
> just came to mind when I was learning the gemara.

Alas, I lack currently the appropriate references, but I recall learning
in a halacha chabura in the Mir led by R' Gershon Meltzer that it's
a machlokes rishonim whether to cut top down or bottom up and that the
da'as haposkim is similar to that of mezuzah - turn the loaf on it's side
and cut _either_ bottom up or top down, as cutting from the side fulfills
both shitas since you are cutting top down and bottom up simultaneously.
He added that it's only negeiah the first slice, after which one may
cut anyway which expedites the process...


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Date: Wed, 5 Dec 2001 23:22:40 EST
From: RabbiRichWolpoe@aol.com
Subject:
Re: Pregnant Women in Cemeteries


In a message dated 12/5/01 11:08:35pm EST, willroth@voicenet.com writes:
> If I recall correctly, the English sefer _Pregnancy in Halacha_ quotes R'
> Sheinberg in a footnote as saying that he can find no makor in Gemara or
> Rishonim to support the widely held belief that pregnant women shouldn't
> enter a cemetery.

I believe it.

My impression {sorry no hard proof} is that this was a "ma'aseh shehaya" and 
the minhag spread as an unoffical Gzeira. I do NOT think there is any formal 
issur, just an understanbdable reaction to a tragic {and probably anonynous} 
incident
 
Illustration: If your first child got nightmares from scary stories, you 
probably would not tell your next child any scary stories before bedtime even 
though the next child might not be so sensitive. 

Regards and Kol Tuv,
RabbiRichWolpoe@aol.com


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Date: Thu, 6 Dec 2001 01:16:12 -0500
From: owner-avodah@aishdas.org
Subject:
Definition of Death


The subject of transplants recently came up on Areivim. This has started
a discussion about the definition of death, and I think it has reached
the point where we should bring it over to Avodah.

R' Akiva Atwood wrote that hearts are often harvested from bodies which
most poskim hold to be still alive. R' Simcha Klagsbrun responded <<< I
would be curious as to how many of those poskim have seen the body on
which they are paskening and how many have a good understanding of the
medical issues involved in a determination of death. >>>

I asked why the poskim need any sort of understanding of the medical
issues; my feeling is that death is when the neshama leaves the body, and
is not a physical event. R' Simcha Klagsbrun wrote <<< when a person is
dead is a physical determination. The time a neshama leaves the body is
not, AFAIK, a halachic standard. >>>

My feeling is this: It is possible to see that a person was breathing
before, but now is not. It is possible to see that a heart was beating
before, but now is not. It is possible to see that there was brain
activity before, but now there is not. It is possible to see that
digestion was occuring before, but now it has stopped. But it is NOT
possible to see that there was life before, and that now the life has
gone.

Medical death is not a "physical determination" or observable event, it
seems to me. It is a diagnosis (prognosis?) based on certain specific
symptoms. The medical community can agree that if a certain set of
symptoms are present, then their cumulative effect is that an
irreversible process has taken place and the patient is dead. But this is
a convention which the physicians might agree upon - or might not.

The rabbis do not have to agree that this irreversible process is the
same as death. We know that it IS possible to revive dead people. It is
possible that a physician would say "this person can be restored to
health", yet the halacha considers him as totally dead.

Igros Moshe, Yoreh Deah 2, Siman 174, bottom right paragraph on page 288:
<<< If a person's head was cut off, even though the head and body are
spasming, he has the din of 'meis mamash'. And even if there would be a
way to connect the head to the body so that he would live, there is no
chiyuv to do so even during the week, because there is no chiyuv to
revive the dead, so on Shabbos it would be assur. See Bava Basra 74,
where R' Yehuda says that a certain jewel exists which can revive the
dead, even those who have been decapitated, but HaShem hid it from us. It
is pashut that even if HaShem would make it available to someone, he
would not be chayav to revive the dead. The Torah only obligated us to
heal the sick, and even to be mechalel Shabbos, but not to revive the
dead. >>>

In other words, Rav Moshe says that there can be situations where medical
technology can cure a person, even though the halacha considers him dead.
I'm confident that this is counter-intuitive to the vast majority of us
(myself included). But if Rav Moshe said it, then we must allow for that
possibility. And is so, it is reasonable to say that the medical and
halachic definitions of death are so very different that there might also
be situations where halacha considers a person alive even though the
doctors consider him dead. Which, I believe, was R' Atwood's original
point.

Akiva Miller


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Date: Thu, 06 Dec 2001 08:34:55 +0200
From: Akiva Atwood <atwood@netvision.net.il>
Subject:
RE: Definition of Death


>> In other words, Rav Moshe says that there can be situations
>> where medical technology can cure a person, even though the
>> halacha considers him dead.

There are cases of people being revived after more than an half-hour without
heartbeat or breathing. There are certainly many cases of people being
revived after being clinically dead for sorter periods of time .

>> there might also be situations where halacha considers a
>> person alive even though the doctors consider him dead.

There are -- that's the whole problem with brain-stem death: (AIUI) the
heart and breathing can continue (at least for a while) while the brain stem
is dead. Doctors accept brain-stem death as final -- while halacha (prior to
this generation at least) relies on breath and pulse for determination of
death.

Akiva


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